' SH. IJAZ NISAR, J.---This appeal with the leave of this Court is directed against the judgment of the Lahore High Court, Lahore, whereby it dismissed the appeal filed by Javed Iqbal and Rashid Ahmad appellants and maintained their conviction and sentence.
2. By judgment dated 11-7-1991 the learned Additional Sessions Judge, Chiniot, convicted and sentenced Javed Iqbal and Rashid Ahmad appellants to suffer imprisonment for life plus a fine of Rs,20,000 each, or in default thereof to undergo further R.I. For two years. The entire amount of fine, if realized, was directed to be given to the legal heirs of Sher deceased. Benefit of section 382-B Cr.P.C. Was also extended to them.
3. The case of the prosecution is that Sardara P.W.1, brother of Sher deceased, had lodged the F.I.R.
On 19-7-1987, at 9-00 p.m. To the effect that he was an agriculturist and resident of Kot Sahib, that on the day of occurrence at noon time his younger brother Sher deceased had gone to his tubewell to deliver meals to his maternal cousins, namely, Shai Khan and Sultan at the Bela of River Ch 'nab in the area of Kot Sahib. At about 5-00 p.m. When Sher deceased was coming back and was at a distance of 4/5 acres, in the north of his tubewell, the above-named appellants and their acquitted co-accused Liaqat, who were lying in ambush, suddenly came out and confronted Sher deceased. The appellants who were 'armed with knives attacked the deceased. Muhammad Nawaz nephew of the deceased, who was grazing his cattle nearby raised hue and cry on which the complainant rushed to the spot from his Dhari and witnessed Liaquat accused since acquitted catching hold of the deceased by his arms while the appellants Javed and Rashid were giving knife blows to him. After causing injuries to the deceased the accused ran away towards the East.
Sardara complainant P.W.1, Muhammad Nawaz P.W.2 and Muhammad Nawaz P.W.3 witnessed the occurrence. The deceased Sher succumbed to the injuries at the spot.
4. The motive behind the occurrnce was a land dispute between the parties. The deceased had received injuries on his neck, left shoulder and chest. The complainant took the dead body of the deceased to the hospital and from there went to the police station for lodging the F.I.R. Which was reduced into writing by C.W.1 Raja Muhammad Hayat on the same day at 9-00 p.m.
' Raja Muhamamd Hayat, S.H.O. Investigated the case. He did not challan the accused and got them discharged, but instead challaned one Fazil Mosalli who had made the confessional statement, Exh.PK before Mian Muhammad Ali, M. I. C . (C.W.5).
5. Sardara complainant P.W.1 filed a private complainant against the appellants, under section 302/34, P.P.C. On the basis of which the appellants and Liaquat (acquitted co-accused) were summoned to face trial.
6. Both the challan and complaint case were tried together and proceedings in the complaint case were initiated first. After recording evidence in the complaint case the learned trial Court examined Raja Muhammad Hayat Inspector (Retd.) C.W.1, Ahmad Ali C.W.2, Nasir C.W.3, Nazir C.W.4 and Mian Muhammad Ali Baloch, M.I.C., C.W.5, as Court-witnesses.
7. During the post-mortem examination 7 injuries were found on the body of the deceased. No incriminating material was recovered from any of the accused.
8. To prove its case the prosecution examined 6 P.Ws. Sardara P.W.1, his son Muhammad Nawaz P.W.2 and Muhammad Azam P.W.3 furnished the ocular account. Dr. Akhtar Hussain Chatha P.W.6 proved the post-mortem report of the deceased.
9. Raja Muhammad Hayat, Inspector (Retd.), S.H.O. Police Station Saddar, Chiniot, appeared as C.W.1. He had recorded the statement Exh.PA of Sardara, which is the F.I.R. Of the case. He found Javed, Rashid and Liaqat accused nominated in the F.I.R. To be innocent and got them discharged, instead he found Fazil son of Wali Muhammad responsible for the murder of Sher deceased and arrested him on 24-8-1987, and on his pointation recovered a blood-stained knife from a bush. He got his confessional statement recorded from the Illaqa Magistrate on 26-8-1987 under section 164, Cr.P.C. Ahmad Ali C.W.2 is a attesting witness of recovery memo. Exh.P.J. Through which the knife was recovered at the instance of Fazil accused. Nasir C.W.3 stated to have seen two persons grappling with each other, one of them caused knife blows to the,other, later he learnt that it was Fazil accused who had given knife blows to the deceased. Nazir C.W.4 also made a similar statement. Mian Muhammad Ali Baloch, MIC, C.W.5 proved the confessional statement of Fazil accused made on 26-8-1987.
10. The appellants in their statements under section 342, Cr.P.C. Denied the prosecution allegations and stated to have been falsely involved on account of enmity. Explaining his involvement Javed appellant made the following statement:-- "The P.Ws. Are closely related inter se. They had long-standing enmity with my family, A few days prior to the present occurrence, we obtained the possession of land through a warrant.
Complainant party was extremely annoyed. Unfortunately Sher deceased grappled with Fazil son of Wali Muhammad and suffered injuries at his hand as said Fazil was having his residence in our land. The complainant party due to long-standing enmity falsely involved us in the present case. I am a student of B.A. Class. On the eventful day I appeared in the Court of Mian Muhammad Ali Baluch, MIC, Chiniot, and had not gone to my village when the occurrence took place. I have been falsely dragged to destroy my career. The complainant party forcibly took the possession of the land after involving us in the present case."
' No oral evidence was led by he appellants in defence. However, Javed appellant tendered the following documents in his defence:- "Judgment A.B.C. (C) dated 4-4-1985 Exh.DB, Judgment of Additional Commissioner, Faisalabad dated 24-8-1985 Exh.DC, copy of Warant Dakhal issued by Consolidation Officer, Chiniot dated 2-9- 1985 Exh.D/D, copy of judgment of Member, Revenue Board Punjab dated 22-4-1987 Exh.DE, copy of judgment dated 20-6-1989 passed by Muhammad Ali Baloch, MIC Exh.DF, copy of mutation dated 31-10-1985 Exh.DG, order-sheet of Case No,156 of 1987 passed by the Court of Mian Muhammad Ali Baloch, MIC, Exh.DH, copy of order of Assistant Commissioner proceeding under section 188, P.P.C.
Dated 18-9-1989 Exh.DI, copy of order of A.C., Chiniot for restoration of possession dated 11-11-1989 Exh.DJ, copy of judgment of Commissioner, Faisalabad dated 30-10-1989 Exh.DK and order of cancellation of bail passed by the Additional Sessions Judge, Chiniot dated 13-5-1990 Exh.DL.I."
' Relying on the ocular testimony furnished by Sardara P.W.1, Muhammad Nawaz P.W.2 and Muhammad Azam P.W.3 and the motive the trial Court convicted and sentenced the appellants as stated above.
11. As regards Muhammad Fazil, the learned trial Court was of the view that since he was a Musalli and servant of the appellants he was bribed by them to confess having murdered Sher deceased and that there was sufficient force in the contention of the complainant's counsel that the police had involved to spoil the case after receiving a huge bribe. Though no formal statement of Muhammad Fazil under section 342, Cr.P.C. Was recorded, the learned trial Court mentioned in the judgment that when asked him to explain the confessional statement, he stated that he was compelled by the landlord and the police to make it. The other ground for its rejection was that it was not recorded in accordance with law and the legal requirements in that behalf were not fulfilled.
12. Learned counsel for the appellants contends that the prosecution had miserably failed to establish its case beyond all shadow of doubt, that the eyewitnesses were interested and their testimony was not corroborated by any independent source.
13. Sardara P.W.1 is real brother of Sher deceased, while Muhammad Nawaz P.W.2 is his son: Nasir C.W.3 is also related to them. Sardara P.W. Admitted that the appellants had filed an appeal in the Board of Revenue against them in connection with the consolidation proceedings. Muhammad Azam P.W. Was also one of the respondents in the said consolidation appeal. Sardara P.W. Further admitted that about 4/5 years ago the accused party had dispossessed them for which cases were registered against them.
14. The statements of Muhammad Nawaz P.W.2 and Muhammad Azam P.W.3 were recorded by the police after a considerable delay for which no reasonable explanation is forthcoming. Muhammad Nawaz P.W.2 stated that he was examined about 8/10 days after the occurrence, while Muhammad Azam P.W.3 stated that his statement was recorded 4/5 days after the murder. Both of them were examined at the police station instead of the spot. Being closely related to the deceased and inimical towards the appellants on account of litigation over land the rule of prudence required some independent corroboration of their testimony but the same is not available. No recovery of any incriminating article was made from any of the appellants. Motive by itself cannot be made a basis of other corroboratory material.
The Investigating Agencies did not accept the prosecution story and found' the appellants to be innocent and got them discharged and instead challaned Fazil accused. Although, some evidence came on the record against Fazil, but he was not asked to explain the same as his statement under section 342 Cr.P.C. Was not recorded. There appears to be absolutely no reason for this omission.
Even if the trial Court intended to acquit him it should have recorded his statement and asked him to explain the circumstances under which he had made the confessional statement under section 164, Cr.P.C. Before a Magistrate, which was duly proved by C.W.5 (Mian Muhammad Ali Baloch, MIC).
He was not even asked to explain the recovery of blood-stained knife recovered in the presence of Raja Muhammad Hayat, Inspector/S.H.O. C.W.1.
15. Having considered all the pros and cons of the case, we are of the view that the prosecution has failed to establish its case beyond all reasonable doubt. Therefore, we accept the appeal, set aside the conviction and sentence of the appellants and acquit them of the charge by giving them the benefit of doubt. They shall be released forthwith, provided they are not required in any other case.