' ABDUL JABBAR KHAN, 1.-Matah aged 35 years and Manzoor aged 28 years, sons of Fateh Muhammad, have been condemned to death under section 302/34, P. P. C. For the murder of Nazar Muhammad and they have also been fined to Rs, 5,000 each or in default to undergo three years' further R. I. Each, vide the judgment of the learned Sessions Judge, Sargodha dated 16th April 1974.
' Matah and Manzoor convicts have appealed against their conviction and sentences and there is a murder reference before us for the confirmation of their death sentence. We will dispose of their appeal as well as the Murder Reference by a single judgment.
2. The occurrence took place on 28th July 1971 shortly after the midnight at the Behk of the deceased in the area of mauza Wasu, situated at a distance of 20 miles from Police Station, Mitha Tiwana, District Sargodha. T. I. R. Exh. P. A. Was lodged by Mumtaz P. W. 2, a cousin of the deceased at 1.00 p.m. On the following day at Police Station Mitha Tiwana which was recorded by Khushi Muhammad S. I. (P. W. 11).
3. The motive as set up by the prosecution is that two years prior to the occurrence the appellants were living near the land of Mumtaz complainant P. W. 2 near the dera of Mansab Ali son of Muhammad Nawaz and were also cultivating the land of said Mansab Ali. Nazar Muhammad deceased was a frequent visitor to their dera and had thus cultivated illicit relations with Mst. Taleh, the sister of the appellants. This immoral liaison became the talk of the village and it was so much resented by the appellants that they murdered the deceased due to this cause of grievance.
4. The details of the occurrence have been given by Mumtaz P. W. In the F. I. R. In the following manner:- "On the fateful night Mumtaz complainant was sleeping at his own Behk alongwith Shah Muhammad son of Bahadur and Fateh Muhammad son of Chiragh (P. W. 4). Shortly after midnight he heard hue and cry from the Behk where his cousin Nazar Muhammad deceased was sleeping.
He alongwith Shah Muhammad and Fateh Muhammad P. W. Ran towards the Behk of the deceased and saw the appellants along-with two other persons whom they could not identify, present at the place of occurrence. According to him the appellants were armed with hatchets and one of their companions whom he described as 57/s feet in height, fair in color and of strong constitution armed with a gun and the second one about whom he stated to be a tall one with medium size armed with a soli. He claimed to identify both the companions of the appellants if they were produced before him. Nazar Muhammad deceased was being held by both of these unidentified companions of the appellants while Matah appellant gave first blow on the neck of the deceased with his hatchet on their arrival. The second blow was given by Manzoor appellant again on the neck with the hatchet at the same place. Matah appellant also give a hatchet blow at the same place on the neck of the deceased. One more hatchet blow was given by Manzoor appellant on the left hand of the deceased which resulted in severance of left hand thumb and two fingers of the deceased. The deceased died at the spot. The complainant Mumtaz P. W. 2 along with his companions, stood aside at some distance and went on raising hue and cry but could not intervene due to fear. After killing the deceased all the four culprits ran towards the south."
5. Khushi Muhammad S. I. (P. W. 11) who was posted as an. S. H.
0. At Police Station Mitha Tawana at the relevant time, after recording the F. I. R. Exh. P. A., proceeded towards the place of occurrence where he reached at 4-00 p.m. After covering a distance of 22 miles on the same day. He prepared injury statement Exh. P. F. And inquest report Exh. P. E. In respect of the dead body of the deceased which he entrusted to Qadir Bakhsh F. C. P. W., for postmortem examination. He collected some blood-stained earth from spot and took into possession vide memo. Fxh. P. B. He took into possession charpai P. 1 and blood-stained chaddar P.
2 vide memo. Exh. P. C. He recorded the statements of the eye-witnesses Fateh Muhammad and Shah Muhammad. He got prepared a site-plan Exh. P. H. And Exh. P. H./1 and gave notes in red ink in his own hand, on it. He arrested Matah appellant on 10.8-1971 as he was not available to him before this date. Manzoor appellant was arrested on 24-9-1971 by Muhammad Muciarrab Inspector Police P. W.
6. No recovery of any kind was effected from the appellants.
6. Dr. Abdul Ghatoor P. W. 1, on 29th July 1971, at 10-30 a.m. Performed the post-mortem examination on the dead body of Nazar Muhammad son of Ata Muhammad deceased and found the following injuries on his person:-
(1) An incised wound 6" x 1" on right side of face and head i" below root of ear oblique. Bones of right lower jaw and occipital bone of skull were cut through and through.
(2) An incised wound 7' x 1" x bone deep on right side of neck just below jaw i" below injury No, 1 oblique. Cervical vertebra was cut partially.
(3) An incised wound 5" x 1" x bone deep on right side of neck r below injury No, 2 vertabra cut through and through and spinal cord was also cut.
(4) Distal phalynx of left thumb was cut and was missing.
(5) Terminal phalynx of left middle and ring finger were cut off and were-missing.
(6) An incised wound i" x r x bone deep on back of left little finger joint of proximal and middle phalynx was open.
' In his opinion all the injuries were grievous in nature and were caused by Ebarp-edged heavy cutting weapon. Injury Nos. 1 and 3 were dangerous, which resulted in the death due to shock and haemorrhage. These injuries individually as well as collectively were sufficient to cause death in the ordinary course of nature. Probable time elapsed between injuries and death was immediate and between death and post-mortem was within 36 hours.
7. The ease of the defence is that of bare denial. The appellants have pleaded their innocence and have denied having any illicit relations between the deceased their sister Mst. Taleh about whom they stated that she was an old and infirm lady. They attributed their involvement due to suspicion and enmity.
8. We have heard the learned counsel for the defence as well as for the State and have perused the record of this case carefully with their assistance. It has been submitted that Mumtaz P. W. 2 is the only witness on the point of motive and there is not an iota of evidence on the file to show that his-evidence stands corroborated from any other source. It has also been argued that Mst. Taleh was an old lady who had a grown-up son of 30 years of age whereas the deceased was aged 40 years. So it has been argued that there was no motive for the appellants to kill the deceased on this account. As regards the ocular evidence it has been vehemently argued that Fateh Muhammad P. W. 4 was nothing but a chance witness who was declared hostile and the prosecution case solely rested on the ocular testimony of Mumtaz P. W. 2 which has been proved to be of doubtful nature during the investigation of this case.
9. We find that in the F. I. R. Mumtaz complainant has mentioned Shah Muhammad son of Bahadur as one of the persons who accompanied him to Bebk of the deceased. This witness has not been produced by the prosecution and no reason has been given for giving up this witness. We are only left with the testimony of Fateh Muhammad P. W. 4 who stated in his examination-in-chief that he saw one unknown person catching hold of Nazar Muhammad deceased and the other two persons who were armed with hatchets could not be identified because of the darkness of the night. We noted that the night of occurrence happened to be the 5th of lunar month and thus we can imagine that it must be quite dark at the time of occurrence. This witness was declared hostile and was cross-examined at length both by the defence and by the Additional P. P. The statement of this witness which be made before the C. M. Was transferred to Sessions file under section 288, Cr. P. C.
While adverting to the evidence of other witnesses who are left it, the field we find in the evidence of Khuda Bakhsh P. W. 5, a cousin brother of the deceased, that relatives of one Khuda Bakhsh Malah were also joined in the investigation by the police as suspects. He has admitted that he himself was considered as suspect in the present murder case and was subject of investigation by the police. Khushi Muhammad P. W. 11, has stated in the cross-examination that on 29-7-1971 one Ghulam Hussain son of Hayat appeared before him. He was stated to b.; a person who was sleeping at the time of occurrence by the side of the deceased. This Ghulam Hussain was about 11/12 years of age according to the assessment of this witness. He also found during the investigation that Khurshid, the brother of said Ghulam Hussain was also sleeping with his brother at the spot at the time of occurrence. He interrogated these two persons and found that they did not support the allegation against the appellants and therefore, he did not cite them as P. Ws. In the calendar. On the very first day of his investigation there was a counter version before him that the appellants were innocent. He has further conceded that he joined Muhammad Sher son of Dust Muhammad in the investigation as a suspect for this murder on 29-7-1971. From his talk and demeanour he suspected Muhammad Sher as the real culprit. On 29-8-1971 said Muhammad Sher confessed before him having committed the murder of the deceased alongwith Feroze, Haider Bakhsh and Khuda Bakhsh. He accepted the suggestion by the defence that till 31-8-1971 Feroze was subject of his investigation as suspect whereas Khuda Bakhsh and Haider Bakhsh had absconded. According to this witness he found the two appellants innocent but challaned teem in obedience to the orders of Muhammad Mucjarrab Inspector who was, at the relevant time, incharge of the investigation. He further stated that on 24th August 1971 many persons had offered to give oath on the Holy Qur'an for the innocence of the accused but the complainant party had declined to accept the offer. In view of this damaging statement against the prosecution case we will now refer to the statement of Muhammad Muqarrab Inspector Police P. W. He has stated in his cross-examination that Manzoor appellant was joined in the investigation even before 24-9-1971, the actual date of his arrest but he was not arrested and that his arrest was not affected because the S. I. Considered him as an innocent person. The many reasons which prompted him to prosecute the appellants was that the eye-witnesses supported the charge against them and he considered it proper to get their guilt or innocence adjudged by the Court and declined to shoulder the responsibility himself on this crucial matter. He accepted the suggestion that from the early stage of the investigation there were two versions before him. According to one the appellants were innocent but according to the eye-witness account the appellants were being charged with the murder of the deceased. As he could not make up his mind as to which of the two versions was correct, he thought it safe to leave the matter to the decision of the Court. He also contributed to the statement of Khushi Muhammad S. I. P. W. 11 that one Muhammad Sher son bf Dost Muhammad had confessed before the said P. W. Having committed the present murder alongwith Khuda Bakhsh P. W. Haider Bakhsh and Feroze.
10. In view of the appraisement of the prosecution evidence and its analysis as discussed above we are of the considered opinion that the evidence of maline set up by the prosecution is not proved in any manner whatsoever against the appellants. The complainant himself has given lie to this claim which he brought forward in the F. I. R., by his own admissions before the Committing Magistrate that Akhtar son of Mst. Taleh was aged 30 years. He has admitted that the appellants had quitted village Wasu two years prior to the resent occurrence and his suspicion regarding the illicit relation was based on his guess work and conjectures. He has further conceded that the suspicion of illicit intimacy only existed against the accused persons till they resided in village Wasu and not after they had shifted from that place. All this will clearly show that the story of motive is nothing but a concoction so as to attribute some cause of grievance to the appellants to make them liable for the murder. Actually it was nothing but their fantasy and imagination which led them to conjecture that the appellants may be the persons responsible for the murder of the deceased who was done to death in the dark hours of the night while sleeping at his Behni. It is an established principle of law that once a motive is set up by the prosecution but is not proved, it is the prosecution which suffers. Reliance is placed on Hakim Ali v. State (1). In the instant case we are left with the testimony of Mumtaz P. W. 2 corroborated by Fateh Muhammad P. W. 4 who was declared hostile but his statement before the Committing Magistrate has been transferred on the file, as a substantive piece of evidence under section 288, Cr. P. C. Be that as it may, we cannot lose sight of the fact that we have to take the evidence of these two witnesses-with abundant caution for the reason that Mumtaz P. W. 2 is a close relation of the deceased and Fateh Muhammad P. W.
4, a self-condemned liar. Therefore, we shall have to look for a strong corroborative piece of evidence to warrant the conviction of the appellants. In the instant case we find that instead of corroborative evidence there is damaging evidence of two independent witnesses relating to the Investigating Agency, one holding a rank of Sub-Inspector and other that of Inspector of Police, against the prosecution case itself. As discussed earlier Khushi Muhammad S. I. (P. W. 11) has exonerated the appellants in unequivocal terms whom he found innocent. Muhammad Muqarrab Inspector P. W. 6, has also made it crystal clear that he was uncertain either about the guilt or innocence of the appellants and thus, like a conventional Police Officer shifted the burden to the Court and refused to give a clear verdict according to his own conscience. We cannot ignore the statement of Khuda Bakhsh P. W. 5, a cousin brother of the deceased who has also given full support to the state of affairs which existed after the commission of this murder in which he himself was considered as suspect for the murder of the deceased. It has been held in Baglz Ali v. State (2) that- "The appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must he supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
We are of the considered opinion that the evidence in this case is of highly doubtful nature and the defence has been able to show from the prosecution evidence itself that the Investigating Agency, itself was not sure about the guilt of the appellants and were highly skeptical of the veracity of the prosecution case. In view of the above we are of the considered opinion that it was not proper for the learned trial Court to place reliance on the evidence of the quality produced in this case and should have gone to seek support by some strong circumstance which would have enabled it to overcome the inherent doubt which such evidence necessarily created. {{FOOT NOTE}}
(1) 1971 SCM R 432 (2) PLD 1973 SC 321 {{FOOT NOTE}}
11. The upshot of the above discussion is that we accept the appeal, set aside the conviction and sentences of the appellants and acquit them. They should be set at liberty forthwith unless they are wanted in some other case. The sentence of death awarded to the appellants is not confirmed. .