1. ' RASHID AZIZ KHAN, J.---Riaz alias Riaja, son of Wali Muhammad, Dildar alias Dari, Riaz Ahmed Councillor, Imtiaz and Ejaz were reported against with Police Station Ghulam Muhammad Abad, District Faisalabad, for the murder of Muhammad Sharif aged 50 yeaRs, Additional Sessions Judge, Faisalabad, at the conclusion of the trial vide his judgment, dated 22-6-1992, gave the benefit of doubt and acquitted Riaz Ahmed Councillor, Imtiaz alias Tajja and Ijaz alias Jajja. Riaz Ahmed and Dildar were however, found guilty under section 302/34, P.P.C. Riaz was sentenced to death with a fine of Rs,10,000, or in default one year simple imprisonment. Dildar was convicted and sentenced to imprisonment for life with a fine of Rs,10,000 or in default one year simple imprisonment. It was further directed that the fine if recovered shall be paid to the legal heirs of the deceased as compensation. Dildar was also given the benefit of section 382-B, Cr.P.C. Convicts have appealed.
2. Case is also before us for confirmation of the death sentence. Complainant has filed two revisions seeking sentence of death for Dildar and challenging the acquittal of Riaz Ahmed Councillor, Imtiaz alias Tajja and Ejaz alias Jaja. All these matters shall be disposed of by this judgment.
3. ' Prosecution story in brief as disclosed in complaint Exh.PH/I lodged by Ali Asghar,, was that on 26- 7-1988, he had gone to greet Eid to his cousin Muhammad Sharif. At about 6 p.m. He started for his house and said Muhammad Sharif also got on his Motorcycle for going to Ghulam Muhammad Abad. When he reached in front of Girls Primary School Kankbasti, Riaz Ahmed Councillor stopped Muhammad Sharif and started talking to him. In the meanwhile, Riaz, Imtiaz and Ijaz Ahmed armed with Chhurri with Muhammad Sardar (Dildar) armed with Chhuri came there raising Lalkara that he would not be spared. Riaz accused gave Chhuri blow in the abdomen of Muhammad Sharif which was followed by Muhammad Sardar whose blow landed on the chest. Imtiaz gave a blow on the back of Muhammad Sharif which was followed by Ejaz Ahmed whose blow landed on the left arm.
4. Muhammad Sharif fell down. On the alarm raised by the first informant, Muhammad Sajjad and Muhammad Aslam were attracted to the spot and witnessed the occurrence. After the murder all the accused decamped with their respective weapons.
5. ' Motive for the occurrence was that a brother of Riaz accused was convicted in a murder case in which Muhammad Sharif was a witness therefore he was done to death.
6. ' Occurrence in this case took place on 26-7-1988 at 6 p.m. Near Girls Primary School Kankbasti 3- 1/2 furlongs from Police Station Ghulam Muhammad Abad. The matter was reported on the same day at 8-30 p.m. By Ali Asghar, P.W.11, whose complaint was recorded at Chishtian Chowk by Ghulam Rasool, S.I., P.W.14, on the basis of which formal F.I.R. Exh.PH/I was drawn the same day, at 8- 45 p.m. By Mehr Muhammad Baqar, S.H.O. P.W.8.
7. ' Ghulam Rasool, S.I., P.W.14 after recording complaint, Exh.PH came to the hospital. Muhammad Sharif was in operation. Theatre. He drafted an application to find out if injured was in a fit state to make a statement, the doctor opined in the negative. Thereafter he came to the spot where he learnt that Muhammad Sharif had expired. He came back to the hospital and prepared injury statement Exh.PC and inquest report Exh.PD and sent the dead body for post-mortem examination.
8. From the spot he secured blood-stained earth vide memo. Exh.PJ and Motorcycle P6 vide memo.
9. Exh.PK. He got both the memos. Attested from the witnesses. He got prepared site plans Exhs.PA and PA/1 from Draftsman and gave his notes in red ink thereunder.' During investigation Riaz accused got recovered Chhuri P4 on 15-8-1988 from his house which was secured vide memo. Exh.PF. On the same day Dildar accused also got recovered Chhuri P-5 from his house which was secured vide memo. Exh.PG. He got both the memos. Attested from witnesses. According to his opinion, Diklar accused was present at the spot but had not participated.
10. ' Mehr Muhammad Baqar, Inspector, P.W.8 on 26-7-1988 had drawn formal F.I.R. Exh.PH/1 on the basis of complaint Exh.PH. Raja Anaar Khan, D.S,P., had also investigated the case. He declared Riaz, Imtiaz and Ejaz innocent. According to his investigation Dildar accused was though present at the spot but had not participated. He further deposed that on his direction the abovesaid three accused were got discharged.
11. ' Dr. Abdul Sattar, M.S. THQ Hospital, Mian Channu, P.W. 13, on 26-7-1988 medically examined Muhammad Sharif and found the following four injuries on his person:
(1) A stab wound 3-1/2 c.m. x 1 c.m. x DNP, 11 c.m. Above and right to the umblicus. Corresponding cut was present on shirt.
(2) A stab wound 3-1/2 c.m. x 1 c.m. x DNP on front of right side of chest near clavicle in middle.
12. Corresponding cut was present on shirt and Saluka.
(3) A stab wound 4 c.m. x 1 c.m. x 3-1/2 c.m. Deep upward on back of left fore-arm.
(4) A stab Wound 3 c.m. x 1 c.m. x DNP on left renal area 8 c.m. Away from mid line. Corresponding cuts were present on Dhoti.
13. Dr. Muhammad Ajmal Mian, DMS, Allied Hospital, Faisalabad, P.W.3, on 27-7-1988, at 8-30 a.m., conducted post-mortem examination on the dead body of Muhammad Sharif and found the following injuries:
(1) A stab wound 3-1/2 c.m. (stitched) situated at 11 O'Clock position of umblicus about 11 c.m. Away on upper part of abdomen directed backward and inward and downward cutting abdominal wall, peritoneum large intestine at two places and small intestine at 6 places. All repaired.
(2) A stab wound 3-1/2 c.m. (stitched) situated on right front upper part of chest below the level of right clavicle directed backward and downward cutting the chest wall right pleurea and right lung through and through.
(3) A stab wound 3 c.m. (stitched) situated on back left flank over left renal area directed forward cutting abdominal wall and left kidney (nephrectomy was done of left kidney it was removed during the operation).
(4) A stab wound 4 c.m. x 1 c.m. Muscle deep situated on back upper part of left forearm directed upward going about 6 c.m. Deep.
(5) Stitched vertible wound of laparotomy operation 25 c.m. Long at middle of abdomen.
(6) A stitched wound 3-1/2 c.m. For intubation chest operation on outer front right chest.
(7) A stitched wound 3-1/2 c.m. For drainage tube on outer side right abdomen area flank.
14. ' In his opinion death had occurred due to shock and hemorrhage. Injuries Nos.1, 2 and 3, were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused with sharp-edged pointed weapon.
15. ' Prosecution in support of its case had produced 14 witnesses in all and one Court witness. Ali Asghar P.W.2 was entrusted with two sealed parcels containing Chhuris which he kept in the Malkhana. Aurangzeb, Draftsman P.W.2 had prepared site plans Exhs.PA and PA/1 on the direction of the police. Mehr Muhammad &gar, Inspector/SHO, P.W.8 had drawn formal F.I.R. On the basis of complaint Exh.PA/1. Ghulam Sarwar, P.W.9 had joined the police investigation and witnessed recovery of Chhuri P4 from an iron box inside the house of Riaz accused, which was taken into possession vide memo. Exh.PF, which he signed. He also witnessed the recovery of Chhuri P5 from an iron trunk from the house of Dildar which he took into possession vide memo. Exh.PG and signed it.
16. ' The ocular account was furnished by Ali Asghar and Muhammad Aslam, P.Ws.11 and 12, respectively. The doctors who had conducted the postmortem examination and examined the injured, have already been discussed they had appeared as P.Ws. 13 and 3, respectively. Case was investigated by Ghulam Rasool, S.I., P.W.14. Raja Anaar Khan, D.S.P. C.W.1 had investigated the case.
17. ' At the conclusion of the prosecution evidence appellants were examined on oath. They refuted the prosecution allegations and pleaded innocence. None of them however, either appeared in their defence on oath or produced defence evidence.
18. ' It was contended by learned counsel for the appellants that the prosecution was not able to prove its case beyond doubt. Submits that initially five persons were reported against. During investigation found three of them innocent and got them discharged. Thereafter they were again summoned during trial but ultimately acquitted and, in such circumstances, no reliance against the appellants on the same evidence could -be placed. Argued that prosecution evidence was highly interested and inimical and the same could not be relied upon unless it was corroborated.
19. Argued that corroboration in the instant case was not available. It was asserted that recovery of Chhuris at the instance of the appellants was not proved because it is against human nature to keep bloodstained Chhuri in an iron box inside the house and get it recovered after twenty days of the occurrence. Contentions were opposed by learned counsel for the complainant as Well as counsel for the State. According to the learned counsel for the complainant, both the eye- witnesses were independent and trustworthy. They could safely be relied upon. Asserted that recovery of blood-stained Chhuri was witnessed by an independent witness and in the absence of any material his statement could be relied upon.
20. ' We have heard the learned counsel at length and gone through the evidence with his assistance.
21. Prosecution in order to establish its case against the appellants has placed reliance on ocular account and sought corroboration from medical evidence, recovery of incriminating articles at the instance of the appellants, and motive.
22. ' As for the motive in the instant case is concerned, it was that one Ilyas brother of Riaz appellant was convicted to imprisonment for life in a murder case in which Muhammad Sharif (deceased) had appeared as prosecution witness. Riaz appellant in his statement under section 342, Cr.P.C.
23. Denied the assertion and further stated that his brother was acquitted on appeal before the present occurrence, and in these circumstances, we are of the view that the motive as set up by the prosecution loses its significance.
24. ' Riaz and Dildar appellants led to the recovery of blood-stained Chhuris from their residential houses which they had kept in iron boxes. The occurrence had taken place on 26-7-1988. The appellants were arrested on 6-8-1988. Thereafter on 15-8-1988 both the appellants led to the recovery of blood-stained Chhuris from their respective boxes which were blood-stained. We have noticed that the recovery witness while given evidence on oath did not state that Chhuris were stained with blood. Even otherwise the question that Chhuris P4 and P5 being stained with blood would be doubtful. It would be against human conduct to remain in possession of incriminating articles like bloodstained Chhuris for ten days, yet do not bother to remove blood stains. This observation finds support from the statement of the witness who at the trial stage did not state that Chhuris were stained with blood, and, in such circumstances, we feel it will be difficult to place reliance on the recovery of blood-stained Chhuri.
25. ' As far as the ocular account is concerned, it has been furnished by Ali Asghar and Muhammad Aslam, P.Ws.11 and 12, respectively. Both of them stated that they were present at the spot when Riaz Councillor stopped Muhammad Sharif deceased and on his Lalkara the remaining accused came there and inflicted injuries with their respective weapons. We have noticed that in the F.I.R. The eye- witness-version was that Muhammad Sharif was stopped by Riaz Councillor who started talking to him, and, in the meanwhile, co-accused came there and launched a murderous assault but at trial stage both the witnesses stated that Riaz Councillor stopped Muhammad Sharif deceased and thereafter raised Lalkara. Both the witnesses were duly confronted with their earlier statements but could not furnish any explanation about the improvement. Ali Asghar, P.W.11 was first cousin of the deceased. According to him he started on a bicycle from the house of Muhammad Sharif deceased. Muhammad Sharif deceased started for Ghulam Muhammad Abad on his Motorcycle yet both of them managed to reach the spot simultaneously. It means that Motorcycle and bicycle of Asghar Ali were going at the same speed which is not 'possible therefore his presence at the spot becomes doubtful. This also finds support from the statement of Aurangzeb, Draftsman, according to which the spot did not fall on the way if somebody was going to Ghulam Muhammad Abad or towards Village Sindhu where the first informant was going. Both the eye-witnesses have been disbelieved as for co-accused are concerned. D.S.P. Anaar Khan after thorough investigation disbelieved both the witnesses as far participation of the acquitted accused was concerned.
26. Additional Sessions Judge dismissed the complaint of Ali Asghar P.W. After recording the statements of both the eye-witnesses. The trial Court in these proceedings also disbelieved the statements of both the eye-witnesses qua the three acquitted co-accused. Since motive was not directed against any of them therefore in such circumstances their acquittal could not be stated to be without justification especially when no recovery was effected from any of them.
27. ' The point for consideration is, would it be safe to rely upon uncorroborated testimony of two interested and inimical witnesses who had made different statements at different stages and were disbelieved by the Court with regard to three co-accused. As discussed above there is no corroboration available which could corroborate the testimony of these witnesses. In the absence of any independent corroboration, we feel it may not be in the interest of administration of criminal justice to rely upon uncorroborated statements of these two witnesses. Therefore, giving the benefit of doubt we accept the appeal and set aside their conviction and sentence and direct that they be released from custody forthwith if not required in any other case. For the same reasons both the revisions filed by the complainant fail which are accordingly dismissed. The sentence of death is not confirmed.