1. ' RAJA AFRASIAB KHAN, J.---On 13th. Of July, 1985 at 3-00 a.m., a case under section 302/34, P.P.C.
2. Was registered against Bashir Ahmad alias Mannu son of Noor Din and Abdul Ghafoor son of Sher Muhammad with Police Station Garh Maharaja, District Jhang for the murder of Bashir Ahmad (hereinafter called the deceased) son of Muhammad Yousaf on the statement of Shah Ramzan.
3. Shah Ramzan had been living along with his father, the deceased and other family members in village Peer Abdur Rehman. About 10 years ago, the deceased abducted Mst. Arshan, the wife of Shah Ban. After about three months of abduction, on intervention of the elders, the abductee was returned to her parents. Again, after about one year, the deceased abducted Mst. Saidan wife of Sher Muhammad. She was also returned because the parties entered into a compromise by settling their dispute. In the result, the deceased left the village and settled in Chak No, 65, District Sahiwal from where, he came back to his village. The deceased revived his illicit relations with Mst.
4. Arshan. The complainant party felt it ill and as such, was annoyed with the deceased. On 12th of July, 1985 at about 10-00 p.m., the deceased ate his dinner and slept on a cot in the lane in front of his house. At about 12-00 mid-night, at an alarm, Shah Ramzan, his wife Mst. Zainab and Mst. Noor Elahi, wife of Anwar Ali awoke and rushed to the street. Mst. Noor Elahi was staying with the family as guest. A bulb was burning in the street. Bashir Ahmad was causing injuries to the deceased with Chhuri while Abdul Ghafoor was holding him in his clasp. The blows hit the left side of his neck. The accused ran away. The victim died on the spot. Ch. Abdul Majid, Abdul Shakoor and other people also reached the spot. They were left behind to guard the dead body. Shah Ramzan informed the Police about the incident. Muhammad Hanif, S.I. Was present at Ahmadpur Sial More when Shah Ramzan appeared before him and made statement Exh. P.C. On statement, Exh. P.C. Of Shah Ramzan, formal F.I.R. Exh. PC/1 was registered by Ahmad Bakhsh Moharrir, Head Constable, P.W.S. The S.I. Inspected the spot. He prepared inquest report Exh.' PK and injury statement, Exh. PL of the deceased. The dead body was sent for post-mortem examination. Bloodstained earth was collected and kept in a sealed parcel vide memo. Exh. PD. The blood-stained cot Exh. P.2 and pillow Exh. P.3 of the deceased were taken into possession through memo. Exh. PE. Chadar Exh. P.1 of the deceased was taken into possession vide memo. Exh. PB. Both the accused were arrested on 17th of July, 1985. Bashir Ahmad was found to have worn blood-stained shirt Exh. P.4 and Shalwar Exh. P.5 which were taken into possession vide memo. Exh.PF. Similarly, blood-stained clothes Exhs. P.6 and P.7 of Abdul Ghafoor were taken into possession vide memo. Exh.PB. Bashir Ahmad, while in custody, led the Police to the recovery of blood-stained Chhuri Exh. P.8 from his house. The weapon was taken into possession vide memo. Exh. PH. On 13-7-1985 at 8-30 a.m., Dr. Muhammad Saleem, Senior Medical Officer Garh Maharaja P.W.1 performed the post-mortem examination on the dead.
5. Body. The following injuries were found on it:-- "(1) Incised wound 10 c.m x 6 c.m. x bone deep on the left side of the neck extending from 3 c.m.
6. Below the left ear to the back of neck.
(2) Incised wound 5 c.m. x 3 c.m. x muscle deep on the back of the left side of the neck closed to injury No, 1.
(3) Incised wound 6-1/2 c.m. x 3-1/2 c.m. x muscle deep, 4 c.m. Above the left clavical parallel to injury No, 1.
7. The cervical spine was completely cut at the level of second cervical vertical under injury No, 1.
8. Spinal cord was completely cut under injury No, 1."
9. ' In cross-examination, the Doctor deposed:-- "The deceased might have been sleeping on right side when he was injured. All the abovementioned injuries were inflicted in the same position. The possibility of some heavy cutting weapons like hatchet or Toka causing injury No, 1 cannot be ruled out (underlining is mine). Injuries Nos.2 and 3 could have been caused by a heavy or light weapon. Injuries Nos.1, 2 and 3 could have been caused by one and the same weapon or by two different weapons."
10. ' Shah Ramzan P.W.7 and Mst. Zainab P.W.8 furnished the eye-witness account. Jan Muhammad Sabir P.W.9 prepared the site plan Exh. PJ and Exh. PJ/1 on 19th of July, 1985 in the scale of 16 feet equal to an inch. Ch. Abdul Majid P.W.6 and Shah Ramzan attested the recovery memos. Exhs. PD, P.2 and P.3. Irshad Ahmad F.C. P.W.3 was entrusted the blood-stained earth, Chhuri and clothes of Bashir Ahmad and Abdul Ghafoor which he brought and deposited in the office of the Chemical Examiner, Lahore for their examination. Report was positive inasmuch as it was opined by the expert that earth, Chhuri and clothes of Bashir Ahmad and Abdul Ghafoor were stained with human blood. The allegations were denied by the accused in their statements under section 342, Cr.P.C.
11. Their plea was that the deceased was a man of immoral character and as such, so many people had the motive to kill him. That being so, he was done to death during the dead of night by some unidentified assailant. However, no evidence, in defense, was led.
12. ' On 31-3-1987, a learned Additional Sessions Judge, Jhang convicted and sentenced the accused to imprisonment for life plus fine of Rs,5,000 each or in default to undergo R.I. For one year each.
13. Benefit of section 382-B, Cr.P.C. Was given to them. On appeal, a learned Judge in the Lahore High Court vide his judgment, dated 9th of August, 1988 maintained the conviction and sentence of Bashir Ahmad. Abdul Ghafoor was, however, acquitted by giving him benefit of doubt. The High Court directed that a sum of Rs,20,000 would also be paid by the appellant as fine. In case of its recovery, Rs,15,000 were ordered to be paid as Compensation to the legal heirs of the deceased.
14. The convict challenged his conviction and sentence through jail. On 22-12-1993, leave was granted with the following order:- 'The occurrence had taken place at mid-night. The deceased was sleeping outside alone. The recovery of blood-stained clothes from his person has been disbelieved. So has the presence and participation of co-accused. The capacity and identification of the petitioner by the son and daughter-in-law of the deceased who were sleeping inside the house is in question.
15. In order to ensure safe administration of criminal justice it is a fit case in which evidence may be reappraised at our level.
16. ' The petitioner being in jail the delay merits condensation. Hence, it is a fit case for grant of leave to appeal and condensation of delay." .
17. ' Learned counsel submits that prosecution has failed to prove its case against the appellant beyond any reasonable doubt. It is argued that the eyewitness account was discarded by the High Court while acquitting Abdul Ghafoor and in such a situation; same evidence could not be used for convicting the appellant. Learned State Counsel had supported the conviction and sentence of the appellant. .The learned counsel for the parties had been heard at some length. Record was also carefully gone through with their assistance. I have been persuaded to agree with the learned counsel that the prosecution did not succeed to prove its case against the appellant on the basis of trustworthy evidence. To start with, Shah Ramzan P.W.7 is the son of the deceased while Mst. Zainab P.W.8 is his daughter-in-law. Both the witnesses are surely interested being closely related to the deceased as discussed hereunder and as such, they would be in need of strong corroboration so as to be relied upon in this case of capital charge. No such confirmatory evidence was brought on record to satisfy the conscience of this Court. The deceased was sleeping outside his house all alone. The occurrence took place at mid-night. The prosecution had attempted to show that eye-witnesses were able to see the occurrence in the light of a bulb which was burning at that time. The bulb was not taken into custody for no reasons. . The P.Ws. Had deposed about the absence of similar light in front of other houses in the street where the murder took place. Shah Ramzan admitted that local committee did not provide any light on the road. According to him, there was no light available on the whole road. He states:-- "There was no bulb on the northern side of my house on either side of road all along its length about one furlong in the Abadi."
18. ' Apart from the above, site plan available at page 91 of the paper book, would show that properties (houses and a shop) belonging to Noor Ahmad, Abdullah Shah and Mujahid barber were not having electricity facility. A somewhat strange explanation was given by Shah Ramzan that electricity was provided in the street so that the people could reach the mosque to offer their prayer in the morning without any difficulty. There is nothing to show about the existence of any mosque in the neighborhood of the place of murder. Site plan Exh. PM did not indicate such a mosque to exist. . In the admitted immoral background of the deceased, it could not be believed that he would become so much religious-minded that he could afford to look after the convenience of the mosque-going people. It can, therefore, be held that the presence of electricity was concocted and introduced simply to show that the witnesses could see the incident. The deceased was a laborer as was admitted by Shah Ramzan in his cross-examination and as such, he could not afford to have the luxury of electricity to be even available outside his house. It was, otherwise, pitch-dark all around and nothing was visible at all. It may also be seen that none except the deceased was sleeping in the whole street. According to complainant, Abdul Majid, Abdul Shakoor, Mst. Noor Elahi and others had come out on his hue and cry. It is strange that these persons (except Abdul Majeed) who were the natural witnesses were not produced in support of the occurrence. The adverse inference under illustration (g)to Article 129 of the Oanun-e-Shahadat Order, 1984 could easily be drawn that, in case, they were produced, they would not have supported the case in the way, the prosecution would like us to believe. Shah Ramzan and Mst.
19. Zainab Bibi were sleeping inside the house and they rushed to the street on alarm. Ch. Abdul Majid P.W. Had stated that he reached the place of murder after hearing the alarm. . He did not claim to be an eye-witness of the murder like Shah Ramzan and Mst. Zainab Bibi. In other words, he had come at the spot surely along with the eye-witnesses. He and Shah Ramzan witnessed the recovery of ehhuri and was present during the night. He claimed to have seen the recovery of weapon of offence as well after five days of the occurrence. It is evident that he wanted to oblige the complainant being his neighbor by becoming a recovery witness. He is not a witness worth reliance qua recovery of the weapon in question. Besides, he also conceded that nobody tried to chase the accused in order to apprehend them. Abdul Ghafoor accused was empty-handed and, at least, he could be chased to be apprehended. Their conduct would demonstrate that they reached the spot only to find that the offence had already been committed by unknown accused. .
20. In these circumstances, unless the evidence of unimpeachable character to corroborate Shah Ramzan, Mst. Zainab Bibi and Ch. Abdul Majid was produced, it would be difficult to believe them.
21. Recovery of blood-stained Chhuri could not be accepted fb be reliable piece of evidence for conviction because it was affected after five days of the occurrence. The Courts below rightly rejected the recovery of blood-stained clothes of the appellant and his co-accused for a very valid reason that it was against the normal human conduct that they would continue to remain in their blood-stained clothes for five days. Similarly, for this very reason, it could not be believed that the appellant would continue to retain the custody of the blood-stained Chhuri in his house. . A mad or mentally deranged person could alone be expected to display such an abnormal conduct/behaviour in the given position. The Chhuri was, undoubtedly, a petty article and was not that valuable like pistol/kalashnikov or gun to be retained in custody even after the commission of crime. It ought to have been thrown away or at least, the blood should have been washed away so that it could not be used against its owner. This being so, recovery of Chhuri too, does not appeal to reason. It is outrightly discarded like the recovery of blood-stained clothes from the accused. .
22. Motive cannot be relied upon because it is always a double-edged weapon which may cut either side. The testimony of Shah Ramzan, Mst. Zainab Bibi and Ch. Abdul Majid P.Ws. Was not considered to be safe enough to register conviction against the acquitted accused almost under similar circumstances and as such, they could not be held to be trustworthy to convict the appellant solely on their evidence. Their credibility is not divisible. In other words, it could not be held to be good for the appellant to convict him and bad qua his co-accused in the same breath. This principle of appreciation of evidence almost in identical state of affairs, was upheld by this Court in Muhammad etc. v. . The Crown (PLD 1954 FC 84), Muhammad Faiz v. The Queen (PLD 1959 PC 24), Ata Muhammad v. The State (1995 SCM R 599) and Naik Muhammad v. The State (CrA 273/93). It may also be seen that the medical evidence had wholly negated the ocular account on the face of it. The medical evidence demonstrated that the injuries which were found on the deceased could be caused by a heavy weapon like hatchet or Toka. . The deceased was overpowered by Abdul Ghafoor while the appellant slaughtered him with his Chhuri. The cervical spine of the deceased was completely cut. The expert evidence would thus suggest that the weapon used in the commission of crime might be hatchet or Toka and certainly not the Chhuri as stated by the eye- witnesses. This view would find support from the rule laid down in Muhammad Iqbal v. Abid Hussain (1994 SCM R 1928) and Abdul Subhan v. Raheem Bakhsh and another (PLD 1994 SC 178). On the strength of medical evidence read with the testimony of eye-witness, it would not be difficult to come to the conclusion that the assailant/assailants was/were armed with a hatchet or Toka with which he/they committed the murder when none was present to see it during the dark night. The view which is favorable to the accused can thus certainly be formed by appreciating the prosecution evidence in its proper perspective. This view to give benefit of doubt to the appellant is, therefore, accepted in the safe administration of criminal justice. .Result of the above discussion is that prosecution has failed to prove its case against the appellant. The conviction and sentence of the appellant is set aside by accepting his appeal. He shall be released forthwith provided, of course, he is not needed in some other criminal case.