' Brief facts of the case are that F.I.R. No,111 Exh.PD was recorded on the statement of Liaqat Ali Khan (P.W.8), in Police Station City Attock on 20-5-1991 at 4-45 p.m. The case was registered under section 302/34, P.P.C. According to F.I.R., the occurrence took place in Mahallah Karbala, within the area of P.S. City Attock. In the F.I.R., the complainant showed suspicion about the present two accused for the commission of murder of Mahasal Khan.
' He stated in the F.I.R. That he deals in she buffaloes and had his residence in Mohallah Karbala.
Close to his house, Mahasal Khan, now deceased, had his house. The said Mahasal Khan had obtained cattle-shed on rent from Sultan Mahmood, Advocate. According to him, on 19-5-1991 Mahasal Khan purchased chaff which was lying close to his plot of cattle-shed: Mahasal deceased and Khaki Jan P.W. Started shifting that chaff to the cattle-shed of the deceased. They got tired and at 11-30 p.m., they went to their houses to sleep. With a view to watch the left-over chaff, Mahasal Khan slept at cot which was lying on the plot. In the morning at 4-00 a.m. The complainant went to that place and saw Mahasal Khan's dead body lying near the cot besmeared with blood. There were number of injuries on the right side of his head, face, front of the chest and back. He suspected two accused persons as murderers, namely, Liaquat Ali and Muhammad Mudassar.
' Motive for the offence as stated in the F.I.R. Is that 10/12 days prior to lodging of the report, Mahasal had exchange of bitter talk regarding return of money with the accused. That incident was witnessed by Khaki Jan and Abdul Razzaq P.Ws. But the matter was got patched upon. He further stated that on the night preceding the occurrence both the accused came to Mahasal Khan and had some conversation with him which manifested some bitterness. The accused again visited the same day at 10-00 p.m. And they were quite angry. The complainant stated that he admonished both of them restraining them not to interfere and permit him to work. Whereupon the accused left the Dera and went away.
' The complainant stated that leaving Haji Muhammad Yasin at the site to watch the dead body, he left for lodging the report.
2. The case was registered under section 302/34, P.P.C. Against both the accused. After completion of investigation, challan against them was submitted to Court for trial.
3. The accused pleaded not guilty. They did not opt to make statements under section 340, Cr.P.C.
4. To prove the case, 9 P.Ws. Were produced, at the trial.
' Dr. Ibadat Khan, M.O., who had carried out the post-mortem of the deceased Mahasal, appeared as P.W.1 The dead body was identified by Abdur Rahim and Adalat Khan P.Ws. According to the post-mortem, there are number of injuries which have been described in the impugned judgment.
According to doctor, cause of death was severe haemorrhage resulting from injuries Nos.2 and 3 which were sufficient to cause death. The time between injuries and death was described to be immediate while the time between death and post-mortem was six to twelve hours. In cross- examination, the doctor has stated that death might have occurred in between mid-night after 3- 00 a.m.
5. P.W.2 Muhammad Hanif Draftsman appeared and proved site plans Exh.PB and Exh.PB/1 in the scale of 20 feet to one inch. He admitted the presence of chaff at point No,3. According to him, place of occurrence is surrounded by Abadi from three sides whereas on the fourth side there is Nullah and across the Nullah there are open fields. P.W.3 Niaz Hussain Shah F.C. Escorted the dead body of the deceased to the mortuary Attock for postmortem examination. After post-mortem, doctor gave him last worn clothes of the deceased - Shalwar, shirt and Saluka which he produced before the I.O. And were taken into possession vide memo. Exh.PC. P.W.4 Muhammad Shafiq F.C.
Took six sealed parcels on 9-6-1991 and delivered the same in the office of the Chemical Examiner on 10-6-1991. P.W.5 Ghulam Shabbir Moharrir Head Constable received two sealed parcels containing blood-stained earth and cover of quilt on 20-5-1991. On 28-5-1991, the I.O. Gave him four other sealed parcels containing a hatchet, a Chhuri, clothes of Liaqat accused and clothes of Mudassar accused. On 9-6-1991, he delivered all the six sealed parcels to Muhammad Shafiq Constable for onward transmission to the office of the Chemical Examiner, Lahore, intact.
6. P.W.6 Abdul Hafeez Inspector/S.H.O, P.S. City Attock investigated this case. According to him, on 20-5-1991 Liaqat Khan complainant appeared before him and made statement Exh.PD i,e, F.I.R. After recording the F.I.R., he reached the place of occurrence, prepared injury statement Exh.PE, Inquest report Exh.PF of the dead body of Mahasal Khan and despatched the same to the mortuary under the escort of Niaz Hussain Shah Constable. On personal search of the dead body, currency notes of Rs,900, eight of hundred rupees denomination P1 to P8 and the rest of fifty rupees denomination P9 and P10 and a portion of the photograph of the deceased were taken into possession by this witness vide memo. Exh.PG. He took into possession blood-stained earth from the place of occurrence vide memo. Exh.PH and made it into a sealed parcel. Blood-stained cotton mattress P11, the cot on which the deceased was sleeping, and a pair of Chappal of the deceased were also taken into possession vide memo. Exh.PH. Blood-stained clothes of the deceased delivered by Riaz Hussain Constable were also taken into possession by him. Site plan was alsO got prepared by him through the draftsman. He arrested both the accused on 25-5-1991.
' According to this witness, on 28-5-1991, Liaqat accused while in custody led to the recovery of blood-stained hatchet P17 from the filth stack of the Municipal Committee situated on Fatehjang Road, which was taken into possession vide memo. Exh.PJ. On the same day, Liaqat accused while in custody also led to the recovery of blood-stained clothes, which he had washed, from his shop situate in Faisal Market which are Shalwar P18 and Shirt P19. Both were sealed in a parcel and secured vide memo. Exh.PK. On the same day, Mudassar accused while in custody led to the recovery of blood-stained Chhuri P20 from an uninhabited open place situate on Fatehjang Road within the Thorr plant which he secured vide memo. Exh.PL and made it into a sealed parcel.
Mudassar accused also led to the recovery of his blood-stained clothes on the same day which he had already washed, from the shop of his co-accused which were Shalwar P21 and shirt P22. These were taken into possession vide memo. Exh.PM. He admitted in cross-examination that till 27-5-1991 both the accused had been persistently claiming to be innocent and it was for the first time on 28- 5-1991 that they offered to lead to the recoveries. Recovery witnesses Abdul Rahim and Fazal Khan, according to him, came to the police station of their own accord. According to this witness, filth stack i,e, place of recovery was away from the city at a deserted place accessible to everyone.
Same was the case regarding the other place of recovery of Chhuri. He admits that clothes of both the accused were taken into possession from the shop which was opened at that time and brother of Liaqat accused was present there. None from the locality was associated and made witness to the alleged recoveries.
7. P.W.7 Abdur Rahim is recovery witness. He deposed about the recoveries as stated by the I.O.
P.W.6. However, in cross-examination, he admits about the relationship saying that Liaqat Khan P.W. Was first cousin of Mahasal Khan deceased. Abdul Razzaq and Khaki Jan P.Ws. Are the real brothers inter se but are not related to this witness. He showed ignorance as to whether these witnesses are or not related to Mahasal Khan. He admits that the place of recovery is accessible to everyone. He admits his relationship with Liaqat P.W. He also stated that Chhuri and hatchet are new. According to him, the clothes of the accused were not blood-stained as per his statement under section 161, Cr.P.C. The shop of Liaqat accused is located in a busy market and at the time of recovery so many persons gathered there. He showed his ignorance as to whether the police had obtained the signatures of any body from the locality on the recovery memo. Or not.
8. P.W.8 Liaqat Khan is the complainant of this case. Deceased Mahasal was the son of his uncle.
Ike used to live in Mohallah Karbala close to the place of occurrence. According to this witness, on 19-5-1991 Mahasal Khan purchased chaff from Sultan Mahmood. He alongwith Mahasal Khan deceased and Khaki Jan continued shifting chaff from the plot of Sultan Mahmood to the cattle- shed of Mahasal till 11-30 p.m. After that he and Khaki Jan went to their Deras whereas Mahasal Khan slept in the plot to guard the remaining chaff. At about 4-00 a.m. In the morning of 20-5-1991, he went to awake Mahasal Khan where he found him lying murdered at a distance of 3/4 paces from his cot. His dead body was soaked in blood. He started weeping loudly which attracted Haji Muhammad Hussain P.W. To the plot. After leaving Muhammad Hussain to watch the dead body, he went to the police station and lodged F.I.R. Exh.PD. In the said report, he showed suspicion about the involvement of Mudassar and Liaqat accused in the commission of murder of Mahasal Khan.
According to him, motive for the offence was that about 10/12 days prior to the alleged occurrence at the Dera of Khaki Jan P.W., an altercation took place between Mahasal Khan and both the accused regarding the dispute of payment of some money. During the said altercation, Mahasal slapped Liaqat accused. Khaki Jan and Abdul Razaq P.Ws. Intervened and patched up the matter between the deceased and the accused. According to him, even on the night of occurrence at about 8-00 p.m., when they were shifting the chaff both the accused came to the Dera of Mahasal Khan and had some conversation with him (Mahasal) at a distance of 10/20 paces from the witness regarding which he felt that there was some bitterness amongst them. The accused went away and again came to that place at about 10-00 p.m. When they were still busy in sifting the chaff. Liaqat accused called Mahasal deceased on which this witness rebuked them and asked them to restrain from interfering in their work whereupon both the accused went away. He is also a recovery witness of blood-stained cover of cotton mattress, pair of chappal and blood-stained earth from the place of occurrence. In cross-examination, he denied that he was the witness of earlier occurrence of motive which allegedly took place 10/12 days prior to this incident. It has been admitted by this witness in cross-examination that before the arrival of Khaki Jan and Abdul Razzaq at the place of occurrence, he left for the police station and even did not inform them while on his way to the police station, when he passed near the Dera of the said P.Ws. He admits that prior to the first altercation on the night of occurrence, the accused and the deceased were on visiting terms. The P.W. Has admitted that when he left for the police station, Mumraiz brother of the deceased had not reached the spot. Mumraiz used to live with Mahasal Khan deceased and in spite of that he had not even informed him about the occurrence prior to the lodging of the report.
In the end of the cross-examination, he admits that the wife and children of Mahasal deceased lived in village Hamid during those days. The wife of the deceased was resident of Village Sirka. A suggestion was put to the witness that there was a family dispute between the husband and wife.
9. P.W.9 Abdul Razzaq appeared and stated that 10/12 days prior to the alleged occurrence he alongwith his brother Khaki Jan and Mahasal deceased were sitting at their Dera at about 6-00 p.m. When both Liaqat and Mudassar accused came there. Liaqat and Mudassar accused inquired from the deceased regarding the payment.Of some amount due from him on account of tailoring charges. They started abusing each other. Mahasal slapped Liaqat accused when they intervened and brought a compromise. He admits that till the date of occurrence the accused and Mahasal were on visiting terms with each other. He has also stated that on the night of occurrence while he was sleeping at his Dera a window was opened at about 1-00 a.m. He got up to shut the window when he saw both the accused in the street light walking briskly. He called them but they did not reply and went towards Dhok Fateh. In cross-examination, this witness admits that he, Khaki Jan, Liaqat complainant and Mahasal deceased are his brothers. He admits that Liaqat had gone to lodge the report when he reached the place of occurrence. According to him, when he reached the place of occurrence the peke was already there and the dead j body was also lying there. He supports the prosecution version that the deceased had Rs,900 in his pocket when his body was searched. No cries from Mahasal deceased were heard by him during the night.
10. After the close of the prosecution evidence, the statements of both the accused were recorded under section 342, Cr.P.C. But they opted not to make statement under section 340, Cr.P.C. Even the defence was not produced.
11. Learned Sessions Judge, Attock, after hearing the parties, acquitted the accused vide judgment dated 21-9-1991. This judgment has been challenged through the present revision petition on the followirrg grounds by the learned counsel for the petitioner:---
(a) that there is a strong motive for the accused to commit the murder of the deceased;
(b) that there is an evidence of Wajtakkar;
(c) that the recovery evidence with regard to the weapon of offence from both the accused and their blood-stained clothes which were taken into possession at their instance give considerable strength to the prosecution case; and
(d) the medical evidence.
12. In support of motive, learned counsel for the petitioner states that two witnesses had been produced by the prosecution, namely, Abdul Razzaq (P.W.9) and Liaqat Khan (P.W.8). According to Abdul Razzaq, 10/12 days prior to the occurrence, he along with his brother Khaki Jan and Mahasal deceased were present at his Dera when both the accused came there at about 6-00 p.m. They demanded tailoring charges from Mahasal Khan over which they exchanged abuses and in that course Mahasal deceased slapped Liaqat accused on his face but the matter was patched up because of their intervention. As far as the complainant is concerned, he has categorically admitted that he was not the eye-witness of the first part of the motive occurrence. The second part of the motive, as per prosecution version, is of the day of occurrence. However, both the witnesses have categorically stated' that the deceased and the accused were on visiting terms with each other till the date of alleged occurrence and that there was no bickering between them, may be because of compromise got effected between the parties.
' To deal with.The motive evidence, I have no hesitation to say that the prosecution has failed to prove the motive for number of reasons. Regarding the first part of the motive, the matter was not reported in the police station. The complainant has denied his presence as a witness to the first part of the motive. As far as the second part is concerned, if there was a compromise till the date of occurrence, the accused and the deceased were on visiting terms having no bickering between them then how it could be said that in the present case this can be a motive for the commission of the crime. Above all, the contention of the prosecution is that Rs,200 were to be paid to the accused for tailoring charges over which abuses were exchanged. If that is the case, it will be pertinent to note that at the time the dead body was searched Rs,900 were recovered from the person of the deceased. If Rs,200 were the bone of contention then in that case, the accused would have taken that amount. Thus, it can safely be said the very bone of contention falsifies the motive.
13. As regards the evidence of Wajtakkar, Abdul Razzaq P.W.9 is the only witness. He appeared to state that on the night of occurrence at about 1-00 a.m. When he got up to close the door of the window, he saw both the accused passing quickly from the street. He stated that he called them but there was not reply. Firstly, nowhere this witness has stated that any of the accused was armed with any weapon. In this case, the version of the prosecution is that Liaqat accused was armed with hatchet whereas Mudassar was having a Chhurri. Hatchet, at least, would have been visible to this witness but he failed to make mention of it. Secondly, at one o'clock at night, the opening of the window door does not appeal to reason. Both the accused were not known to this witness prior to the occurrence. How intimately he can with a twinkle of eye identify them. For the aforesaid reasoning, I discard the evidence of Wajtakkar.
14. Regarding the evidence of recovery, the prosecution case is that hatchet P17 and Chhurri P20, blood-stained clothes of Liaqat accused P18 and P19 and that of Mudassar accused P21 and P22, were recovered at their instance individually. To prove P17 and P20, Abdur Rahim P.W.7 and Abdul Hafeez I.O. P.W.6 appeared. According to P.W.7 on 28-5-1991, Liaqat accused while in custody led to the recovery of blood-stained hatchet from a stack of filth. Similarly, on the same day Mudassar led to the recovery of bloodstained Chhurri within the Thorr Plant situate on Dhok Fateh. Both the witnesses have admitted that the alleged recoveries were made from the places which were accessible to everyone. In addition to this, on the aforesaid weapon there is no special mark for the purpose of identification. Abdul Hafeez I.O. (P.W.6) has stated the recoveries were effected from filth stack of the Municipal Committee on the Fateh Jang Road. This fact compels me to say that the occurrence allegedly took place on the night between 19/20-5-1991 and the recoveries of hatchet was made on 28-5-1991. If the same was hidden in the filth stack of the Municipal Committee then it could not be possible to have it so easily got from the stack in spite of the fact that number of days had passed and during that period, it could be said that the filth must have been piled up to a huge extent. Thus, the recovery seem to be highly doubtful and has been planted with a view to strengthen the prosecution case. Similarly, P20 Chhuri was allegedly recovered from a Thorr plant which was accessible to every one. Simple recovery of these weapons do not connect the accused with the commission of crime.
15. Now, I proceed to examine the recoveries of clothes of the accused from the shop of Liaqat accused. On the day the alleged recovery was effected, the shop was opened and the brother of Liaqat accused was present in the shop. It cannot be called that it was a conscious possession.
Secondly, the prosecution version from the start is that the clothes of the accused were washed and none of the witnesses stated that there were blood spots seen on them at the time of recovery.
It is astonishing how later on these were found stained with blood.
' In view of the above, it can safely be said that the recovery evidence has no evidentiary value for the purpose of connecting the accused with the alleged crime.
16. As regards medical evidence, Dr. Ibadat Khan appeared as P.W.1 and stated that on 20-5-1991 at 11-00 a.m. He performed post-mortem of the dead body of Mahasal deceased and found seven injuries on his person. According to him, all the injuries were ante-mortem and caused with sharp- edged weapon. The death had occurred due to severe haemorrhage caused by injury Nos.2 and 3 which were sufficient to cause death in the ordinary course of nature. The evidence of the doctor has not been challenged by the defence and very rightly as it does not give any support to the prosecution for obvious reasons against the accused to connect them with the alleged crime.
17. I have also perused the judgment of the trial Court. It is full of reasoning. Prosecutio evidence has rightly been rejected. It is a case of unseen occurrence. During investigation, the I.O. Attempted to bring round the circumstantial evidence but it is full of weaknesses and in no manner it can be said that the prosecution has proved its case to its hilt against the accused persons. I, therefore, do not feel pursuaded to interfere with the judgment of the trial Court. The revision petition having no merit is accordingly dismissed.
Revision .