ZIA MAHMOOD MIRZA. J.---This judgment will dispose of both the abovementioned criminal appeals as they are directed against the same judgment of the Lahore High Court, Bahawalpur Bench.
21 Facts relevant .For the disposal of these appeals, briefly are that Muhammad Ishaq, the appellant in Cr.A. 152 of 1994 and Muhammad Ramzan, the appellant in Cr.A. 154 of 1994 alongwith their to acquitted co-accused namely, Maqsood Ahmed (sister's husband of Muhammad Ishaq and uncle of Muhammad Ramzan) and Sufi Ibrahim (father of Muhammad Ishaq) were put on trial before Additional Sessions Judge, Bahawalpur, on the charge of having murdered Ghulam Muhammad deceased on 22-10-1990 at 2-00 p.m. In the area of Chak No. 155-Murad, at a distance of 36 k.m. From Police Station, Hasilpur. The learned trial Judge vide judgment dated 20-7-1991 convicted all the four accused under section 302/34, P.P.C., awarded death penalty to Muhammad Ishaq and Maqsood Ahmed and sentenced Sufi Ibrahim and Muhammad Remzan to life imprisonment. Sentence of fine was also imposed on them. The convicts preferred an appeal in the High Court and the learned trial Judge submitted a reference for confirmation of death sentence awarded to Ishaq and Maqsood. The learned Judges of the High Court heard and disposed of all the matters together, allowed the appeal qua Maqsood and Ibrahim and acquitted them of the charge of murder giving them benefit of doubt but dismissed the appeal of the present appellants and confirmed the death sentence awarded to Ishaq appellant. Revision petition filed by Mst. Miran Bibi, the mother of the deceased was disposed of as not pressed
3. Case of the prosecution as set out in the F.I.R. Was that Ghulam Muhammad deceased used to supply labour to Faisal Steel Mills, Dadu 'on contract basis. He used to engage labourers from his area and take them to the Steel Mills at Dadu. He often made the payment in advance. Six/seven months prior to the occurrence, Muhammad Ishaq appellant obtained a sum of Rs.8,000 as advance from the deceased for working in the said Mill and started working there. He, however, did not complete the contract period and returned home on the pretext of the illness of his mother.
Eight days before the occurrence, Ghulam Muhammad demanded back the outstanding amount due from Ishaq, who not only refused to make the payment, but also told Ghulam Muhammad that he had insulted him by demanding the amount publicly.
On the day of the occurrence, the deceased alongwith his brothers Amanat Ali and Karamat Ali set out for the Dera of Muhammad Latif for weighing cotton which they had purchased. When they reached near the Dera of Muhammad Tufail Bajwa at about 2-00 p.m., Ishaq and Maqsood, armed with hatchets and Sufi Ibrahim and Ramzan, armed with Sotas appeared on the scene. Ishaq told the deceased that he would be taught a lesson for having insulted him by demanding back the amount and simultaneously, all the accused launched attack on the deceased. Maqsood inflicted to hatchet blows on the back side of the head of the deceased while Ishaq gave to blows on the left side of jaw near the chin on the back side of the neck and on the right thumb of the deceased.
Ibrahim and Ramzan gave Sota blows on both the shoulders, right upper arm and left ribs of the deceased. The accused threatened the P.Ws., that they would meet the same fate if they intervened, Muhammad Bukhsh (given up P.W.) was attracted to the spot on hearing the alarm raised by the P.Ws. The accused then ran away and Ghulam Muhammad died at the spot. Karamat Ali P.W., leaving Muhammad Bakhsh and Amanat Ali to guard the dead body went. To the police station where he lodged the F.I.R. At 3-30 p.m. On the same day.
4. After registering the case, Muhammad Sadiq, S.H.O., teached the spot and dispatched the dead body for post-mortem examination after preparing the necessary papers.
5. Doctor Amjad Ali P.W.9 performed the autopsy on 23-10-1990 at 11-00 a.m. And found 11 injuries on the dead body, seven of which were found to have been caused with sharp-edged weapon and the remaining four with blunt weapon.
6. All the accused were arrested by the Police on 13-11-1990. Muhammad Ishaq while in custody got recovered blood-stained hatchet Exh.P.1 which was taken into possession vide memo. Exh. PB and '
Sotas' P-2 and P-3 were recovered from Sufi Ibrahim and Muhammad Ramzan respectively which were taken into possession vide memo. Exh.P-C and P-D. Hatchet and 'Sotas' were found to be stained with human blood according to the reports of the Chemical Examiner and the Serologist, Exhs.P-K and P-L.
7. At the trial, prosecution sought to prove its case by producing the oral evidence furnished by P.W.3 Karamat Ali and P.W.4 Amanat Ali, the evidence of recoveries, medical evidence and the motive. The accused person when examined under section 342, Cr.P.C. Denied the prosecution case and claimed that it was an unwitnessed occurrence and they were involved due to enmity and suspicion. In their defence, they examined Muhammad Latif Bajwa D.W.1 who deposed that Ghulam Muhammad deceased had not purchased any cotton from him nor had he any appointment with him on the day of occurrence.
8. Trial Court did not rely upon the recoveries of hatchet and ' Sotas' as they were effected after 32 days of the occurrence and on the 11th day of the arrest of the accused but accepted the motive alleged by the prosecution and the ocular account of the occurrence given by P.W.3 and P.W.4 which it was held was corroborated by medical evidence. All the accused were accordingly found guilty of the charge of murder and convicted under section 302/34, P.P.C. And sentenced as aforesaid. Shafi Muhammad Ibrahim and Muhammad Ramzan were awarded lesser penalty for the reason that they had not caused any fatal injury to the deceased. .
9. On appeal filed by the convicts, the learned Judges of the High Court after appraising the prosecution evidence accepted even the recoveries of hatchet P-1 and 'Sotas' F-2 and P-3 (which were discarded by the trial Court and observed that although Karamat Ali and Amanat Ali who had witnessed the occurrence were reliable witnesses but since they were very closely related to the deceased, corroboration of their evidence from independent source should be looked for.
Proceeding on that basis, the learned Judges held that Maqsood accused though was married to the sister of Ishaq accused had no direct motive of his own nor was any weapon of offence recovered from him and, therefore, it was unsafe to maintain his conviction on a capital charge.
Similarly, benefit of doubt was extended to Sufi Ibrahim who, it was said, being 60/61 years old and his son having participated in the occurrence with a formidable weapon like hatchet, was roped in by the complainant "just by way of stretching the net wider". It was also observed that: "The possibility of the lacerated wounds having occurred from the use of the wrong side of the hatchet cannot be ruled out" and to abrasions found on the person of the deceased "could have been given by Ramzan appellant alone. "Maqsood and Sufi Ibrahim were accordingly acquitted. Case against the present appellants was, however, held to have been proved. Appeal qua them was accordingly dismissed and the death sentence of Muhammad Ishaq appellant confirmed. This was vide the impugned judgment dated 31-1-1993, leave against which was granted by this Court, inter alia, "to p consider whether the High Court was justified in law to maintain the conviction of the petitioners on the testimony of interested witnesses on capital charge without sufficient corroboration".
10. Learned counsel appearing for the appellant contended that the occurrence was not witnessed by P.W.3 and P.W.4 and in any case, these to witnesses being the real brothers of the deceased, their testimony in view of the principle enunciated by the High Court itself, required corroboration from independent source which was lacking in this case. In support of his contention that the occurrence was not seen by the alleged eye-witnesses, learned counsel referred to the statement of Noor Muhammad Lamberdar who appearing as P. W.1 has stated that Karamat P. W. Had no knowledge about the occurrence and it was he (P. W. I) who informed him about the same. It was also submitted by the learned counsel that in view of the evidence of Latif Bajwa D.W.1, the P.Ws. Had no reason to be accompanying the deceased. Learned counsel also relied upon the evidence of P.W.6 to contend that the occurrence was unseen. It was further contended that the recoveries of the crime weapons allegedly effected 32 days after the occurrence and 11 days after the arrest of the appellants were of no help to the prosecution being devoid of any corroborative value. Learned counsel also submitted that Ramzan appellant was only 12/13 years of age at the the of occurrence and, therefore, his participation in the occurrence was extremely unnatural.
11. Having gone through the evidence on record with the assistance of the learned counsel for the appellants, we find that the prosecution case suffers from serious infirmities. Noor Muhammad, Lamberdar P.W.1 in his cross---examination has given a complete lie to the prosecution version by stating that B he was present in his house when Ranizan Arain, tenant of Tufail Bajwa told him about the dead body of Ghulam Muhammad lying there whereupon he went out in the bazar, found Karamat P.W. Standing nearby the Rehri of a fruit vendor and there he informed him about the occurrence. Karamat expressed ignorance about it and ran away to the place where dead body was lying. Noor Muhammad further stated that he alongwith Amanat P.W. And the mother of Karamat went towards the place where the dead body of Ghulam Muhammad was lying. They stayed there for about one hour and many people had gathered there but no one told that he had seen the occurrence. This statement completely demolished the prosecution case but it was allowed to go unchallenged. Apart from this, the prosecution version that the eye-witnesses were accompanying the deceased to the Dera of Latif Bajwa for the purpose of weighing the cotton lying there which the deceased had purchased is contradicted by Latif Bajwa who appearing as D.W.I categorically denied that the deceased had purchased any cotton from him or he had any appointment with him on the day of occurrence. The statement of Latif Bajwa was that the deceased "had not purchased any cotton from me in the days when he was murdered. He has no appointment with me on the day when he was murdered. Amanat and Karamat P.Ws., or the deceased had not kept any cotton at my dera". It may pertinently be observed that the police had not cared to join Latif Bajwa in the investigation nor did they examine Ranizan Arain near whose Dera, the dead body of the deceased was I 0 lying. Prosecution also failed to examine Muhammad Bakhsh P. W., the only independent person who had allegedly witnessed the occurrence, on the usual pretext that he was won over by the accused.
As regards the recoveries of the weapons of offence relied upon by the High Court as corroborative piece of evidence, we would like to observe that these were rightly discarded by the trial Judge as it is extremely unlikely that the accused who remained at large for 22/23 days after the occurrence would let the blood remain on the hatchet and the Sotas so as to enable the prosecution to trace its origin and even otherwise, it is doubtful that the blood stains would remain intact even after 32 days of the occurrence particularly when they were buried underground. These recoveries were hardly of any corroboration value.
We also find considerable weight in the contention of the learned counsel that the participation of Ramzan appellant in the occurrence in the facts and circumstances of the case was extremely doubtful. Our attention was drawn to his birth entry and some other documents appended with his bail-application (Cr.M.A. 153/94) which go to show that he was only 12/13 years of age at the the of occurrence. It is also in evidence that he is the nephew of Maqsood accused who has been acquitted by the High Court on the ground, inter alia, that he had no direct motive of his own. If Maqsood who was married to the sister of Ishaq appellant had no direct motive, how could Maqsood's nephew, a young lad of 12/13 years have any motive against the deceased? This aspect of crucial importance has escaped the notice of the learned Judges of the High Court.
14. For the foregoing reasons, we have come to the conclusion that the prosecution has failed to prove its case against the appellants beyond all reasonable doubt. We, therefore, by giving benefit of doubt to both the appellants allow their appeals, set aside their convictions and sentences and acquit them of murder charge. In fact, by short orders, these appeals were accepted and the appellants were directed to be acquitted forthwith if not required in any other case and reasons have been recorded in this judgment.