' Abbas Ali, Muhammad Anwar and Sakhawat Ali were tried under sections 302/34 and 109, P.P.C. By the learned Additional Sessions Judge, Sheikhupura for the murder of Sarwar son of Khuda Bukhsh.
The learned trial Judge vide his judgment, dated 30-5-1993 acquitted Muhammad Anwar and Sakhawat Ali of the charge but convicted Abbass Ali under section 302, P.P.C.. And sentenced him to imprisonment for life and a fine of Rs,10,000. In case of default in payment of fine, the accused was to undergo further R.I. For six months. Under section 544-A, Cr.P.C., Abbas Ali was directed to pay Rs,10,000 to the legal heirs of the deceased as compensation and in case of default in the payment of compensation or in case the amount is not recovered, to undergo further R.I. For six months; hence this appeal by Abbass Ali, appellant.
2. The prosecution case as disclosed in the statement Exh.P.B. Of Manzoor Hussain, P.W.5, which was recorded by Muhammad Iqbal, A.S.-I., P.W.3, on 21-5-1990 at 4-10 p.m. Is that on the day of occurrence, he alongwith Muhammad Sadiq son of Bashir and Mahmood son of Siraj Din were working as labourers in connection with boring of the tube-well of Khushi Muhammad son of Haji Ghulam Nabi. His younger brother Muhammad Sarwar (deceased) who was unmarried and was living with his parents went to the orchard of Haji Mahmood to procure fodder for his cow. A little later, Sakhawat Ali, accused armed with a Takwa. Anwar accused, armed with a carbine and Abbass, accused, armed with a dagger reached there. Sakhawat accused, raised a Lalkara exhorting the co-accused not to allow Sarwar to escape and to teach a lesson to him. Sarwar, deceased, raised alarm and tried to run away. On hearing the noise, the complainant alongwith his companions ran towards the orchard aforesaid and saw that Anwar accused, stopped Sarwar from the front side and Sakhawat, accused, gave him Takwa blow hitting him on his left shoulder and he fell down after getting injured. While he was lying down, Abbass gave several blows with the dagger. Sarwar tried to save himself. He received two blows on his right elbow and also one blow on the wrist of his left hand. Then Abbass, accused, gave a blow with the dagger hitting Sarwar in his chest. Then the complainant and the eye-witnesses moved forward, whereupon Anwar, accused, raised a Lalkara threatening that anybody who will try to move forward, will be killed.
Frightened as they were, they stopped there. The accused fled away towards the village raising Lalkaras. Muhammad Sarwar died at the spot.
3. The motive, as stated in the F.I.R., was that about 4/5 months ago, the son of Sakhawat, accused, namely, Sarwar alias Lahori had been killed and a case concerning the same had been registered against Yousaf etc. Residents of Imamia Colony but Sakhawat, accused, suspected that his son Sarwar had been killed by Khalid, the brother of the complainant. On account of the said grievance, the accused in consultation with each other and also at the instance of Khushi Muhammad son of Noor Muhammad had launched the murderous attack on Sarwar, deceased. The occurrence was witnessed besides the complainant by Mahmood Ahmad and Sadiq, P.Ws.
4. After recording the F.I.R., Inspector Muhammad Ashraf, P.W.7, proceeded to the spot and inspected the place of occurrence, collected the bloodstained earth from the spot and by forming the same into a sealed parcel took the same into possession vide memo. Exh.P.G. He prepared the rough site plan of the place of occurrence as Exh.P.I., inquest report Exh.P.E. And the injury statement Exh.P.J. Of the deceased. The Police Officer recorded the statements of the P.Ws. Under section 161, Cr.P.C. He searched for the accused but they were not available. The last-worn clothes of the deceased, that is, Shalwar, Exh.P.1, shirt, Exh.P.2 and Bunyan, Exh.P.3 were taken into possession vide recovery memo. Exh.P.F., after the post-mortem examination. All the three accused, namely, Abbass, Sakhawat and Anwar were arrested by him on 5-6-1990 and on 19-6-1990, Abbass accused, while in custody made a disclosure and then led to the recovery of dagger Exh.P.4 from underneath a bridge on G.T. Road known as Sau Moria Pul from Dar No,5. The dagger was bloodstained which was taken into possession by the P.W. Vide memo. Exh.P.H. And prepared the site plan of place of recovery as Exh.P.H./1. He also got prepared the site plans Exhs.P.A. And P.A./1 from the Revenue Patwari. The said Inspector partly investigate this case and thereafter, the investigation was completed and all the three accused were challaned. However, Shah Muhammad Khushi Muhammad were declared innocent. Sakhawat Ali, accused, though was found innocent, but his name was placed in column No,2 of the challan.
5. Dr. Mubashar Ahmad, Medical Officer, District Headquarters Hospital, Sheikhupura medically examined Muhammad Sarwar and found seven injuries on his person. Injury No,2 was a stab wound, injuries 1, 3, 4 and 5 were incised wounds and injuries 6 and 7 were abrasions. The doctor opined that all the injuries were ante-mortem; injuries 1 to 5 were with sharp-edged weapon; rest were with blunt weapon; the death occurred due to sever shock, haemorrhage and cardiorespiratory failure; all the injuries collectively and injury No,2 individually were sufficient to cause death of a person in ordinary course of nature; the probable time between the injuries and death was immediate and that between death and post-mortem was within 24 hours.
6. The prosecution in support of its case had produced seven witnesses in all. P.W.1 Muhammad Younis, Constable had taken the blood-stained earth to the office of the Chemical Examiner, P.W.2 Muhammad Iqbal is the Revenue Patwari who prepared the site plans, Exh. P. A . And Exh P . A . /1 , A .
S -I . Muhammad Iqbal, P.W.3, on the receipt of the complainant's statement (Exh.P.B.) recorded the formal F.I.R. (Exh.P.B./A.) is the Medical Officer who conducted the post-mortem examination on the dead body of Muhammad Sarwar. P.W.5 Manzoor Hussain is the complainant while Muhammad Sadiq, .W.6, is an eye-witness. Inspector Muhammad Ashraf, P.W.7, conducted the investigation.
Mahmood Ahmed, eye-witness was given up by the prosecution being unnecessary.
7. The appellant when examined under section 342, Cr.P.C. Denied the prosecution allegations and professed innocence. In answer to question that why this case against him and why the P.Ws. Have deposed against, the appellant replied that he had been falsely involved in the case due to suspicion and misunderstanding.
8. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellant as indicated above.
9. Learned counsel for the appellant contended that the presence of the complainant as well as the eye-witnesses at the place of occurrence is doubtful; the prosecution story is not supported by the ocular account furnished by the eye-witnesses as well as the medical evidence; the recovery of the weapon of offence is not proved and that the motive as alleged is not proved. Next submitted that Sakhawat, co-accused, to whom the main role was attributed has since been acquitted, as such, on the same set of evidence, the conviction of the appellant is not legally justified.
10. In so far as first contention of the appellant is concerned, Manzoor Hussain, complainant, while 'appearing as P.W.5 stated that he alongwith Muhammad Sadiq, an eye-witness, (P.W.6) and Mahmood were working as labourers and digging a ditch after which the work of the boring of the tube-well was to be started. The said tube-well was being got installed by Khushi Muhammad who has not been produced to prove whether the work of digging was being carried out near the place of occurrence. In cross-examination, Manzoor Hussain (P.W.5) stated that they were digging the earth with Kassis and after hearing the noise, he alongwith others ran towards the place of occurrence empty-handed when they had recognized the voice to be of their deceased brother. It is not believable that after the noise of real brother saying Bachao Bachao, the other brother who was admittedly armed with a Kassi would run to the place of occurrence to save his brother empty-handed. Similarly, Muhammad Sadiq, (P.W.6) an eye-witness stated in his cross- examination that he and the complainant apprehended after hearing the Lalkara that the accused were going to attack Sarwar, but they ran towards him empty-handed. The witnesses do not own any land near the place of occurrence.
11. The next ground is that the ocular evidence is contradicted by the medical evidence. Admittedly, there were seven injuries according to the postmortem report. The co-accused Sakhawat was attributed having caused an injury on the left shoulder of the deceased with Takwa. That injury existed which has not been accepted by the learned trial Court. Sakhawat co-accused has been acquitted to whom the said injury was attributed. There was no State appeal or revision against the order of acquittal qua Sakhawat. Still, further the doctor has le stated that injuries Nos.1 to 5 were caused with blunt weapon whereas the witnesses alleged that the injuries have been caused by two weapons. In these circumstances, the ocular account qua Sakhawat, co-accused having not been believed by the learned trial Judge though the injury existed, it makes the matter further doubtful regarding the appellant.
12. As regards recovery of the weapon of offence, not a single independent person has been joined when admittedly, the place of recovery was bridge at G.T. Road having easy access. Further, the incident took place on 21-5-1990 while the appellant was arrested on 5-6-1990 and the recovery of the weapon of offence was affected on 19-6-1990. There were 29 clear days in between and the weapon could have been destroyed and after a period of 29 days, blood stains could not be preserved. The recovery of the weapon on the last day of physical remand of 14 days is also not without a dint of suspicion. Further, P.W.6 is the recovery witness. In cross-examination he stated that he affixed his thumb-impression on Exh.P.H. (dagger) in the police station when according to the statement of P.W.8 Investigating Officer the recovery was made from underneath a bridge at G.T. Road.
13. So far as motive in this case is concerned, firstly it is not against the deceased and secondly it is shrouded in mystery and thirdly the learned trial Court has confessed that it is not proved. To prove the motive, only Manzoor Hussain complainant (P.W.5) in his cross-examination stated that his elder brother, namely, Khalid was involved in the case of murder of son of Sakhawat. The question arises why Sarwar (deceased) was selected to be murdered being brother of Khalid when Manzoor Hussain, complainant was admittedly doing the work of boring the tube-well in the adjacent filed.
The argument of learned counsel for the State that even if it is agreed that motive is not fully proved, the only benefit that can go to the accused is that capital punishment cannot be awarded but he cannot be acquitted. Had the prosecution not put the motive, the argument would have some force. The rule is that where the prosecution puts a motive and the same is not proved, it must adversely affect the prosecution story. In other words, story of the prosecution in such a case is to lapse and the prosecution has to suffer. Sufferance is not by lesser punishment but the prosecution story has to fall on the ground.
14. Over and above all this, Muhammad Din son of Labhoo who was an independent witness and was also cited as a witness to the recovery of dagger, Exh.P.H. Was given up as being unnecessary.
15. The contention of learned counsel for the State that in our country false involvement is common but the substitution is very rare and that no such enmity has come on the record for which the appellant would have been substituted and that the accused having died at the spot, there was no need of any bandate is of no avail, as the case in hand is otherwise full of doubts coupled with the fact of conduct of the eye-witnesses inasmuch as they were so bold to tell lies that even one being Bahnoi the other being real brother while the third being the relative, denied this relationship unless there was a word of warning from the learned trial Court.
16. For all these reasons, the conviction and sentence awarded to the dappellant cannot be maintained.