' ASIF SAEED KHAN KHOSA, J.--- Muhammad Sadiq and his three brothers namely Sabir, Muhammad Ramzan and Furman were convicted by the learned Additional Sessions Judge, Sahiwal vide judgment, dated 25-5-1994 for an offence under section 302/34, P.P.C. Muhammad Sadiq was sentenced to death and the other three were sentenced to imprisonment for life each. All four of them were also convicted for an offence under section 324/34, P.P.C. On two counts and were sentenced to 5 years' R.I. Each and a fine of Rs,2,000 each on both the counts or in default whereof to undergo further R.I. For one year each on each count. All four of them were also convicted for an offence under section 452/34, P.P.C. And were sentenced to 5 years R.I. Each and a fine of Rs,1,000 each or in default whereof to undergo further R.I. For one year each. It was, however, ordered that all the sentences of imprisonment awarded against the convicts shall run concurrently and they shall also get the benefit under section 382-B, Cr.P.C. All the four convicts have jointly challenged their convictions and sentences before this Court through Criminal Appeal No,109 of 1994. We have heard the convicts appeal alongwith Murder Reference No,151 of 1994 seeking confirmation of the sentence of death passed 'against Muhammad Sadiq. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that at about 7-00 a.m. On 5-8-1993 Muhammad Sharif complainant's daughter Mst. Rani started milking their buffalo in the complainant's house in Chak No,46/5-L within the area of Police Station Burjwala, District Sahiwal. As the buffalo was being distributed by flies Mst. Rani collected some straws and put them to fire so that the smoke, thus, produced would keep the flies away from the buffalo. Furman, a neighbour of the complainant, took an offence to that smoke and started abusing Mst. Rani. This attracted the complainant's sons Muhammad Ismail and Muhammad Yousuf on the one hand and Furman's brother Muhammad Sadiq on the other hand to that place. They then exchanged abuses with each other. In the meanwhile Rashid Ahmad and Nazir Ahmad also reached there and patched up the matter and the parties went back to their respective houses. At about 9-00 a.m. On the same day, when the said Rashid Ahmad and Nazir Ahmad were still present in the complainant's house, Muhammad Sadiq armed with an axe, Furman armed with a hatchet and Muhammad Ramzan and Sabir empty-handed entered the complainant's house raising Lalkaras that the complainant party would be taught a lesson for producing smoke. Muhammad Ramzan then shouted a Lalkara whereupon Sabir took the complainant's son Muhammad Ismail into his clasp, Muhammad Sadiq then gave an axe blow to Muhammad Ismail which an on his backward and outer side of right shoulder causing a deer cut and excessive bleeding. Then Furman gave two hatchet blows to Muhammad Yousuf which hit him on the back of his left hand's thumb and left upper arm and caused bleeding. When Mst. Rani went forward to rescue her brother Muhammad Ismail she was given a blow from the blunt side of his hatchet by Muhammad Sadiq which landed on her forehead. The hue and cry raised by the complainant, Rashid Ahmad and Nazir Ahmad attracted a number of people to the spot whereupon the culprits left the place of occurrence with their weapons. The complainant then took his sons Muhammad Ismail and Muhammad Yousuf and his daughter Mst. Rani to the Basic Health Unit of Chak No,55/5-L and obtained the medico-legal certificates in respect of them. The doctor on duty first admitted Muhammad Ismail here at but later on he was sent to the Civil Hospital, Sahiwal as his condition was dangerous. The complainant then went to report the matter to the police. He met Sadiq Ali, S.-1. (P.W.8) at Adda Yousuf Wala and made his statement (Exh.P.G.) before him at 1-45 p.m. On the same day. Formal F.I.R. No,228 (Exh.P.G./1) was subsequently, registered in that regard at Police Station Burjwala by Maqsood'Ahmad, H.C. At 1-55 p.m. On 5-8-1993 for offences under section 324/337(2)/337- F(4)/452/34, P.P.C.
3. After recording the statement of Muhammad Sharif complainant Sadly Ali, S.-I. (P.W.8) took up the investigation of this case, went to the place of occurrence, collected blood-stained earth from the place of occurrence and secured the same vide memo. Exh.P.H. Which was witnessed by Rashid Ahmad and Nazir Ahmad P.Ws. He then received a message that Muhammad Ismail had succumbed to his injury in the hospital. Thereupon, he proceeded to the hospital, examined the dead body of Muhammad Ismail deceased, prepared the injury statement (Exh.P.D./1) and the inquest report (Exh.P.D./2) and sent the dead body to the mortuary for autopsy.
4. Dr. Mushtaq Ahmad Asif (P.W.1) had medically examined Muhammad Ismail deceased vide Exh.P.A. When he was still alive at 11-00 a.m. On 5-8-1993 and had found one injury on his person which had been caused by a sharp-edged weapon within a duration of 2 to 3 hours. The injury was kept under observation. At about 11-10 a.m. On the same day the same doctor had also medically examined Muhammad Yousuf P.W. Vide Exh.P.B. And had found three injuries on his person injuries Nos.1 and 2 had been caused by a sharp-edged weapon whereas injury No,3 had been caused by a blunt weapon within a duration of 2 to 3 hours. Injury No,1 was declared to be grievous whereas injuries Nos.2 and 3 were declared to be simple in nature. At about 11-20 a.m. On the same day the same doctor had also medically examined Mst. Rani P.W. Vide Exh.P.C. And had found one simple injury on her person which had been caused by a blunt weapon within a duration of 2 to 3 hours.
5. Post-mortem examination (Exh.P.D.) of the dead body of Muhammad Ismail was conducted by Dr. Mushtaq Ahmad Asif (P.W.1) at 8-00 a.m. On 6-8-1993. He found one injury on the dead body which was ante-mortem and caused by a sharp-edged weapon. In the opinion of the doctor death had resulted due to severe haemorrhage and shock and coma caused by the injury which was sufficient to cause death in the ordinary course of nature. The approximate time elapsing between the injury and death was stated by the doctor to be about 8 to 9 hours and that between the death and post-mortem examination was opined by the doctor to be within about 24 hours.
6. After the post-mortem examination of Muhammad Ismail deceased Sadiq Ali, S.-I. (?.W.8), the Investigating Officer, secured the last-worn clothes of the deceased vide memo. Exh.P.E. He also got a formal site plan (Exh.P.F.) of the place of occurrence prepared from a Draftsman. He arrested all the four accused persons on 14-8-1993. He was then transferred and the investigation of this case was taken over by Muhammad Ali Khan, S.-I. (P.W.9) who recovered an axe from Muhammad Sadiq accused and a hatchet from Furman accused on 25-8-1993. Thereafter, he fulfilled the other formalities, completed his investigation and submitted a challan in respect of this case.
7. At the commencement of the trial the learned trial Court framed a charge with three heads under sections 452/34, 324/34, and 302/34, P.P.C. Against all the four accused persons to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as nine witnesses in support of its case against the accused persons. Mst. Rani (P.W.5), Muhammad Yousuf (P.W.6) and Muhammad Sharif complainant (P.W.7) furnished the ocular account of the incident. The motive set up by the prosecution was also stated by these eye-witnesses. Dr. Mushtaq Ahmad Asif (P.W.1) provided the medical evidence. Sadiq Ali, S.-I. (P.W.8) and Muhammad Ali Khan, S.-I. (P.W.9) stated about various steps taken by them, including the recoveries affected from the accused persons, during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. 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 the case. While answering a question Muhammad Sadiq accused had stated that:-- "I am innocent. The factual position is that Ismail deceased and Youssef injured P.W. Used to cut filthy jokes on my sisters and one day prior to the occurrence an altercation had taken place between Ramzan and Sabir accused and the deceased and Yousuf P.W. On the day of occurrence Sadiq and Furman accused were away to repair the tube-well of Khuda Bakhsh. They were not present at the time of occurrence. In fact Ismail deceased and Yousuf P.W. Came at the shop of my co-accused Raman and Sabir and launched assault on them inside the shop, in retaliation of occurrence stated above. Including abuses. The accused in right of self-defense snatched a Cappa from the deceased and caused him injury who later on succumbed to his injury in the hospital. The injuries of Yousuf and Rani P.Ws. Are self-suffered. They were not present at the time of occurrence."
' The other three accused persons endorsed that reply of Muhammad Sadiq accused and adopted the same. All the accused persons opted not to make any statement on oath under section 340(2), Cr.P.C. However, they produced two witnesses in their defence. Dr. Mushtaq Ahmad Asif (D.W.1) proved the injuries sustained by Muhammad Ramzan and Sabir accused during the occurrence in question and Khuda Bakhsh (D.W.2) proved the alibi of Muhammad Sadiq accused.
10. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Sahiwal convicted and sentenced all the four accused persons as noticed above. Hence, the present appeal and connected murder reference before this Court.
11. We have heard the learned counsel for the appellants as well as the learned counsel representing the State and have also gone through the record of this case with their assistance.
12. 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; 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 has 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.
13. 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 and the prosecution has failed to prove its case against the appellants beyond reasonable doubt. It has been noticed by us at the outset that both the parties to this case were immediate neighbors and admittedly there was no background of hostility or animosity between them prior to the day of occurrence. The prosecution has also admitted that the incident over smoke at 7-00 a.m. In the morning of the day of occurrence had also been patched up with no serious or untoward incident taking place. We have also noticed that if at all any party was to feel aggrieved of that incident it was the complainant party and not the accused party. Thus, there was no occasion or motive for the appellants to have launched a concerted aggression against the complainant party at 9-00 a.m. On the same day with an intention to commit a murder.
14. The appellants have seriously maintained that the occurrence did not take place inside the house of the complainant as alleged by the prosecution. In this context we have found that the prosecution had indeed failed to establish the place of occurrence beyond doubt. Sadiq Ali, S.-I.
(P.W.8), the Investigating Officer, had stated that soon after recording the statement of the complainant (Exh.P.G.) he had proceeded to the place of occurrence (the house of the complainant). According to him the complainant and the injured P.Ws. Were not available there as they had gone to the hospital but Rashid Ahmad and Nazir Ahmad P.Ws. Were present at the spot in whose presence blood-stained earth was secured from the place of occurrence vide memo.
Exh.P.H. Which was attested by the said Rashid Ahmad and Nazir Ahmad P.Ws. The said Rashid Ahmad and Nazir Ahmad P.Ws. Were never produced by the prosecution before the learned trial Court. We have noticed that Muhammad Sharif complainant (P.W.7) had categorically maintained that after the said occurrence Rashid Ahmad and Nazir Ahmad P.Ws. Had accompanied the injured party to the hospital and had never returned to the house of the complainant on that day. Thus, the claim of the Investigation Officer that he had collected the bloodstained earth from inside the house of the complainant in the presence of the said P.Ws. Was factually untrue. Therefore, the mainstay of the prosecution's case that the appellants had trespassed into the complainant's house in order to launch a pre-meditated assault itself has an unsound foundation.
15. The axe and the hatchet allegedly recovered from Muhammad Sadiq and Furman appellants during the investigation of this case were admittedly not stained with blood, not to talk of human blood, and, therefore, the same could not be connected with the offence in question nor could they connect the said appellants with the occurrence in issue.
16. The medical evidence brought on the record of the case renders the ocular account extremely.
Unreliable. According to the eye-witnesses produced by the prosecution Muhammad Sadiq appellant was armed with an axe and he had given one axe blow to the deceased. At the time of post-mortem examination of the dead body the doctor (P.W.1) had found one injury on the dead body with a dimension of 25 c.m. x 5 c.m. x muscle deep. We have noticed that the blade of the axe allegedly recovered from Muhammad Sadiq appellant vide recovery memo. Exh.P.K. Was only 6-1/2 inches long and the said axe could not cause - such a long injury unless the same was dragged while causing the injury. The doctor had categorically ruled out the possibility of dragging of the weapon at the time of receipt of that injury by the deceased. Thus, we have entertained serious doubts as to whether the solitary injury of the deceased was caused by the axe of Muhamthad Sadiq appellant, as maintained by the prosecution.,-or by a snatched away Cappa of the deceased himself, as maintained by the defense.
17. It is again significantly noticeable that according to the prosecution's case Muhammad Ramzan and Sabir appellants were empty-handed during the occurrence wherein Muhammad Ramzan had allegedly only raised a Lalkara whereas Sabir had allegedly clasped the deceased from his front side. However, we have noticed that Dr. Mushtaq Ahmad Asif (D.W.1) had found six injuries on the person of Muhammad Ramzan appellant and one injury on the person of Sabir appellant soon after the occurrence. Some of those injuries were on the vital part of the said appellants.
Surprisingly all those injuries on the persons of these two appellants and completely been suppressed by the eye-witnesses produced by the prosecution. Thus, the presence of those injuries on the said appellants and the prosecution's suppression of the same have further deepened our doubts about the truthfulness of the ocular account furnished by the prosecution.
18. For what has been observed above we are constrained to hold that, despite two of them being injured witnesses, the eye-witnesses produced by the prosecution have failed to inspire our confidence on a capital charge. They had also failed to find independent corroboration from the evidence of motive and recoveries or support from the medical evidence. Thus, we have no hesitation in concluding that 'the prosecution had failed to prove its case against the appellants beyond reasonable doubt. Criminal Appeal No,109 of 1994 is. Therefore, allowed and the appellants are hereby acquitted. They shall he released from jail forthwith, if not required in any other case.
The sentence of imprisonment passed against Muhammad Ramzan and Sabir appellants by the learned trial Court had been suspended and they had been released on hail by this Court during the pendency of their appeal. Their bail bonds are hereby cancelled and their sureties shall stand discharged.
19. As the sentence of death passed by the learned trial Court against Muhammad Sadiq appellant has been set aside and he has been acquitted by us, therefore, Murder Reference No,151 of 1994 is hereby answered in the negative.
Death sentence not confirmed.