' ASIF SAEED KHAN KHOSA, J.---Muhammad Qasim, Mulazim Hussain alias Manna and Muhammad Kala appellants were convicted by the learned Additional Sessions Judge, Multan vide judgment dated 28-10-1993 for an offence under section 302(b)134, P.P.C. Muhammad Qasim and Mulazim Hussain alias Manna were sentenced to Death each as Ta'zir and a fine of Rs,20,000 each or in default whereof 5 years' imprisonment each Muhammad Kala was sentenced to imprisonment for life and a fine of Rs,10,000 or in default whereof 3 years' imprisonment. It was also ordered that out of the recovered fine a sum of Rs,30,000 was to be paid to the heirs of Allah Ditta deceased as compensation under section 544-A, Cr.P.C. All the convicts were also extended the benefit under section 382-B, Cr.P.C. Through the same judgment the convicts' co-accused Muhammad Wazir was acquitted by the learned trial Court. Muhammad Qasim and Mulazim Hussain alias Manna convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,300 of 1993. Muhammad Kala convict has challenged his conviction and sentence before this Court through Criminal Appeal No,299 of 1993. Muhammad Shafi complainant has filed Criminal Revision No,8 of 1994 before this Court challenging the acquittal of Muhammad Wazir accused recorded by the learned trial Court. Through an order passed by this Court on 12-2-1994 that revision petition was ordered to be heard alongwith the convicts' appeals. We have heard the convicts' appeals and the complainant's revision petition alongwith Murder Reference No,133 of 1996 seeking confirmation of the sentences of death passed against Muhammad Qasim and Mulazim Hussain alias Manna. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Muhammad Shafi complainant was a resident of Jhok Wains Pawli and was a bus driver by profession. His brother Allah Ditta (deceased), an agriculturist, used to reside with him. During the night of 3-3-1991 Allah Ditta was watering his wheat crop and the complainant and Allah Ditta son of Ramzan were also with him at that time. At about 10-00 p.m. Muhammad Wazir accused came to them and invited Allah Ditta deceased to go with him to a Tamasha being held at the wedding of one Allah Wadhaya. Allah Ditta deceased asked him to proceed to the Tamasha and said that he would go there after watering his field. After some time the complainant returned to his house with his brother Allah Ditta deceased and Allah Ditta son of Ramzan. Subsequently Allah Ditta deceased left his house all alone at about 11-00 p.m.
For going to the Tamasha. After about 10/15 minutes of his departure noise was heard from the side of the tubewell of one Allah Yar Wains of Chah Chobi Wala whereupon the complainant, Allah Ditta son of Ramzan and Nazar Muhammad, who was also present in the house, rushed towards the place of noise. When they reached near the tubewell of the said Allah Yar they heard the shrieks of Allah Ditta deceased. Upon reaching near a Pipal tree they saw in the moonlight that four persons had felled Allah Ditta deceased with his face downwards. Muhammad Wazir accused was holding the deceased's head, Muhammad Kala appellant was holding his feet and Muhammad Qasim and Mulazim Hussain alias Manna appellants were giving repeated Lathi blows to the deceased on his buttocks and legs. When the complainant and his companions tried to go near the deceased they were threatened by the accused party not to come near or else they would be done to death. The deceased then became unconscious due to the blows received by him whereupon all the four accused persons dragged him to their cattle-shed. The hue and cry raised by the complainant party also attracted Allah Bakhsh and Ghulam Muhammad P.Ws. To the spot. Upon a reprimand by Allah Bakhsh P.W. All the four accused persons left the place of occurrence with their Lathis leaving the deceased unconscious at the spot. When the complainant party went near the deceased the latter was breathing slowly and had his left wrist broken and also had a bleeding injury on his right hand. The complainant party then brought the deceased to the complainant's house on a cot but the deceased breathed his last at about 1-00 a.m. When some transport was being arranged for taking him for medical treatment. The motive set up in the F.I.R. Was that the accused party had suspected that Allah Ditta deceased was carrying on illicit relations with one Mst. Shamim Mai daughter of Haq Nawaz Sial and for that reason he had been done to death in a planned manner.
The complainant then went to Police Station Alpa, District Multan and lodged F.I.R. No,62 (Exh-PK) which was recorded by Muhammad Mumtaz, S.I./S.H.O. (P.W.11) at 4-00 a.m. On 4-3-1991 for an offence under section 302/34, P.P.C.
3. After recording the statement of the complainant Muhammad Mumtaz, S.I./S.H.O. (P.W.11) took up the investigation of this case, went to the place of occurrence, examined the dead body of Allah Ditta deceased, prepared inquest report (Exh.PB) and injury statement (Exh.PC) and sent the dead body to the mortuary for autopsy. He also collected blood-stained earth from the place of occurrence and secured the same vide memo Exh.PE.
4. Post-mortem examination (Exh.PA) of the dead body of Allah Ditta was conducted by Dr. Abdul Aziz Shah Bukhari (P.W.1) on 4-3-1991. He found 9 injuries on the dead body which were all ante- mortem and caused by a blunt weapon. In the opinion of the doctor death had resulted due to shock caused collectively by all the injuries which were sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injuries and death was stated by the doctor to be within two hours and that between the death and post-mortem examination was opined by the doctor to be between 12 to 24 hours.
5. After the post-mortem examination of Allah Ditta deceased Muhammad Mumtaz, S.I./S.H.O.
(P.W.11), the Investigating Officer, secured the last-worn clothes of the deceased vide memo. Exh.PF.
He also got a formal site-plan (Exh.PD) of the place of occurrence prepared from a Patwari. He arrested all the four accused persons on 25-3-1991 and then on 29-3-1991 he recovered Sotas, etc. From Muhammad Qasim and Mulazim Hussain alias Manna appellants. Thereafter, he fulfilled the other formalities, completed his investigation and submitted a Challan in respect of this case.
6. At the commencement of the trial the learned trial Court framed a charge with one head under section 302/34, P.P.C. Against all the four accused persons to which they pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as 11 witnesses in support of its case against the accused persons. Muhammad Shafi complainant (P.W.7) and Nazar Muhammad (P.W.8) furnished the ocular account of the incident. The motive set up by the prosecution was also stated by Muhammad Shafi complainant (P.W.7). Allah Yar (P.W.4) deposed about the recoveries effected from the accused persons. Dr. Abdul Aziz Shah Bukhari (P.W.1) provided the medical evidence.
Muhammad Mumtaz, S.I.,/S.H.O. (P.W.11) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. All the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They maintained that they had been falsely implicated in that unwitnessed murder. While answering a question as to why he had been involved in this case and as to why the witnesses had deposed against him. Muhammad Qasim appellant had stated that: ' "I reside at a distance of 2 Kms from the place of occurrence. My father is a cancer patient and in those days he was admitted in Nishtar Hospital. I was looking after my father while my younger brother being 8 years of age that I was the only looking after my father. My father was operated upon due to leg cancer. The P.Ws. Are closely related with the deceased and they are not resident of the locality. Nazar is not known to me. It was a blind murder and in the morning people came to know that Allah Ditta has been killed by some one. The relatives of the deceased have been making inquiry from the residents of the surrounding Abadi of the place of occurrence. Mst.
Shamim is married with Nawaz due to suspicion that Shamim is having illicit relation with the deceased. I have been falsely involved."
' While answering a similar question Mulazim Hussain alias Manna appellant had stated that: ' "I am distantly related to Mst. Shamim, who is wife of Nawaz. I reside at a distance of about quarter of mile from the place of occurrence. It was a blind murder and in the morning, the relatives of the deceased have been making enquiry about unknown accused person. Allah Ditta P.W. Is the first person who visited the place of occurrence in the morning and then he informed the Police and the relatives of the deceased, about the abovesaid blind murder. I had a slight quarrel with Muhammad Shafi P.W. Long ago. I have been falsely involved in this case, due to suspicion being distant relation of Shamim."
' To the same question Muhammad Kala appellant replied as under: "The P.Ws. Are related inter se with the deceased. They are not resident of the locality. Nazar P.W. Is not known to me. I reside one mile away from the spot. I was 13 years old at the time of alleged occurrence and was studying in 10th class. I am the only son of my parents. They never allow me to remain outside the house after Isha prayer. I have been falsely involved."
' All the accused persons opted not to make any statement on oath under section 340(2), Cr.P.C.
However, they produced three witnesses in their defence. Muhammad Pervaiz (D.W.1) proved the date of birth of Muhammad Kala appellant, Syed Qasim Jafri (D.W.2) proved a newspaper report according to which the occurrence in question was an unwitnessed one and Allah Bakhsh (D.W.3) stated that he did not know anything about the occurrence although he had been mentioned as an eye-witness in the F.I.R.
9. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Multan convicted and sentenced Muhammad Qasim, Mulazim Hussain alias Manna and Muhammad Kala appellants as noticed above while their co-accused Muhammad Wazir was acquitted. Hence, the present appeals, revision and the connected Murder Reference before this Court.
10. We have heard the learned counsel for the appellants as well as the learned counsel representing the State and the complainant and have also gone through the record of this case with their assistance.
11. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case beyond reasonable doubt. He has maintained that the statements made by the so- called eye-witnesses did not inspire confidence; Muhammad Shafi complainant (P.W.7) and Nazar Muhammad (P.W.8) had failed to bring anything on the record to substantiate their claim of being present in the village in question at the fateful time; the motive set up by the prosecution had not been satisfactorily proved; the recoveries allegedly affected from the appellants were sham; and the medical evidence did not provide any support to the ocular account. As against that the learned counsel representing the State and the complainant have argued that the prosecution had successfully proved the guilt of the appellants to the hilt as the witnesses produced by the prosecution had made consistent statements which had found ample corroboration and support from the other evidence produced by the prosecution. The learned counsel for the complainant has, however, stated that the complainant does not wish to press his revision petition filed against the acquittal of Muhammad Wazir accused.
12. After hearing the learned counsel for the parties and going through the record we have no hesitation in observing that the eye-witnesses produced by the prosecution have failed to inspire our confidence. The occurrence in question had admittedly taken place at the dead of night (around 11-00 p.m. In the month of March to be precise) when the deceased had admittedly gone all alone to watch a Tamasha According to the prosecution's own case Muhammad Shafi complainant (P.W.7) or Nazar Muhammad (P.W.8) had not accompanied the deceased at that late hour. It is again the prosecution's own case that the deceased had a rendezvous with his death at a place which was at least 10 acres away from his (and complainant's) house. Both the eye-witnesses produced by the prosecution had maintained that at the time of commencement of the proceedings at the place of occurrence they were still at the house of the complainant and that they were initially attracted only upon hearing a noise and that only after reaching near the place of occurrence they recognized that noise to be the shrieks of the deceased. It was also admitted by them that nobody else from that village was attracted to the spot upon the noise raised or shrieks made by the deceased. Attraction of only these witnesses to the spot upon what was just a noise for them till then and disregard of that noise by all the other residents of the village in question is something which has raised the initial doubts in our minds over the said witnesses' claim in this regard.
13. It has also been noticed by us that both the said eye-witnesses had maintained that it had taken them about 15 minutes to reach the place of occurrence from the complainant's house. It can well be imagined that the noise must have been raised , and shrieks made by the deceased upon the commencement of the assault upon him by the culprits. Thus, in the next 15 minutes all the nine lathi blows must have been received by the deceased much before the arrival of the witnesses. Even if the assertion of the learned counsel for the complainant is accepted that, keeping in view the dimensions of the injuries sustained by the deceased, the injuries found on the dead body were in fact a result of more than nine Lathi blows still all such blows could have been received by the deceased much before the witnesses' arrival at the spot. Thus, the claim of the eye-witnesses to have seen the actual causing of injuries to the deceased by the culprits appears to be a claim which can be accepted only with a lump of salt. In this context we are also not unmindful of the usual human conduct that an offender choosing night-time for commission of an offence necessarily wants to keep his identity concealed. Thus, the culprits choosing the cover of night for giving a beating to the deceased would surely have decamped upon seeing the witnesses approaching the spot. Therefore, the claim of these witnesses that the culprits neither fled away upon arrival of the witnesses at the spot nor discontinued their thrashing of the deceased again appears to be not only a tall claim but tall enough to raise serious doubts about its genuineness.
14. Our doubts about the claim of the eye-witnesses to have witnessed the occurrence in question have been compounded by certain other very serious exceptions which can be taken to their claim in that regard. Muhammad Shafi complainant (P.W.7) had admitted that he was a bus-driver and that he used to perform his duty at night. Nazar Muhammad (P.W.8) had stated that Muhammad Shaft (P.W.7) used to come back home after one week's continuous duty. Muhammad Shafi (P.W. 7) had claimed that he had returned home on leave from his duty on the evening before the day of occurrence but Nazar Muhammad (P.W.8) had claimed that Muhammad Shafi (P.W.7) had returned home 2/3 days earlier. Thus, in order to satisfy the judicial conscience of the Court, it was incumbent upon Muhammad Shafi (P.W.7) to produce some evidence to establish that he was not on duty and was in fact on leave on the night of occurrence. He had completely failed to bring anything on the record to substantiate that fact. So much so that admittedly even the Investigating Officer (P. W.11) never bothered to inquire into the issue of his duty or leave. We have, thus, found it difficult to believe this witness's presence in the village in question on the night of occurrence when admittedly he used to perform night-duty but had failed to support his claim of being on leave that night through any evidence whatsoever.
15. As regards Nazar Muhammad (P.W.8) we have noticed that he was admittedly a resident of a different village (Jahania Mandi) than the village of occurrence. It was admitted by the prosecution itself that he had never resided in the village where the occurrence had taken place and that his visits to that village took place after considerably long gaps. He was surely a chance witness who had statedly come to that village only to inquire about the health of the ailing mother of Muhammad Shafi complainant (P.W.7) who also happened to be P.W.8's mother-in-law. Again the prosecution has completely failed to bring anything on the record of this case to prove the factum of ailment of the complainant's mother so as to establish the raison Detre for P.W.8's visit to that village. A chance witness who fails to substantiate the stated reason for his presence at a place where he was ordinarily not expected to be present can hardly be relied, upon on a capital charge.
16. It may not be out of place to mention here that Muhammad Afzal, Patwari (P.W.2), who had prepared the site-plan (Exh-PD) of the place of occurrence, had categorically stated that the site- plan prepared by him clearly recorded that the same had been prepared at the pointing out of the police (and not of the eye-witnesses). A bare look at the said site-plan vouchsafes the correctness of that statement made by P.W .2. This factor also points towards a real possibility that the alleged eye-witnesses did not know much about the place of occurrence and that, in all probability, they were procured and planted by the police after the occurrence. It need not be ignored here that Muhammad Shafi complainant (P.W.7) was a brother of the deceased and Nazar Muhammad, (P.W.8) was his brother-in-law. They were surely quite likely to have volunteered in that regard. We have also noticed it very significantly that the only independent eye-witness mentioned in the F.I.R., i.e, Allah Bakhsh son of Muhammad Nawaz was given up by the prosecution as unnecessary. He then appeared as D.W.3 and stated that as a matter of fact he had not witnessed the I incident in question. This stand taken by D.W.3 confirms our doubts that the witnesses cited in the F.I.R. Had actually not witnessed the occurrence.
17. We have also noticed that the eye-witnesses produced by the prosecution had claimed that the deceased had left for witnessing a Tamasha at a particular place. Muhammad Afzal, Patwari (P.W.2) had, however, categorically stated that the place where the deceased had been done to death was in the opposite direction to the place where the said Tamasha was supposed to be held.
This shows that the said eye-witnesses were not with the deceased before his leaving his house just before the occurrence. If they were not with the deceased in his house before he left the house then their claim to have heard the noise and his shrieks and to have gone to the place of occurrence from that house also crumbles to the ground.
18. The motive set up by the prosecution in this case has also engaged our serious attention. It was claimed in the F.I.R. That the deceased was suspected of carrying on illicit relations with one Mst.
Shamim Mai which had prompted the appellants to commit his murder. In this context we have noticed that the appellants were not very closely related to the said Mst.,Shamim Mai and due to that lack of close relationship with the lady the appellants were not expected to take such an offence to that alleged illicit relationship so as to be propelled to commit an offence of murder.
Muhammad Shafi complainant (P.W.7) was the only witness who had stated about the alleged motive. His deposition in that regard is nothing but vague and sketchy. Even otherwise, the complainant had himself disowned that motive before the Investigating Officer after 22 days of the occurrence. At the trial he had gone on to set up some other motives, like a dispute with Muhammad Qasim appellant over a dog and also a dispute with the said appellant over price of cotton. Even those motives remained absolutely unestablished. It is proverbial that motive is a double-edged weapon. In the present case we have found it to be cutting the other way!
19. As regards the recoveries allegedly effected from the appellants during the investigation of this case suffice it to observe that the same had been effected after 26 days of the occurrence. We are not ready to believe that the appellants would be so naive as to keep their weapons and clothes stained with the blood of the deceased for so long so as to facilitate their recovery from them for subsequent use as corroboration against them!
20. The medical evidence in this case is not of much help to the prosecution as the same cannot identify or locate the perpetrators of the offence in a case where the presence of the eye- witnesses itself is found to be doubtful. Even otherwise, medical evidence is only of supportive character and the same loses all its value in a case like the present one where there is no other reliable evidence available to give support to.
21. For what has been observed above we are convinced that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. Criminal Appeals Nos.300 and 299 of 1993 are, therefore, allowed and the appellants are hereby acquitted. They shall be released from jail forthwith, if not required in any other case. It has been noticed above that the learned counsel for the complainant had stated that the complainant did not wish to press his revision petition against the acquittal of Muhammad Wazir accused. Criminal Revision No,8 of 1994 is, therefore, dismissed as having not been pressed.
22. As the sentences of death passed by the learned trial Court against Muhammad Qasim and Mulazim Hussain alias Manna appellants have been set aside and they have been acquitted by us, therefore, Murder Reference No,133 of 1996 is hereby answered in the negative.
Death sentence not confirmed.