' This judgment will dispose of Criminal Appeal No,409 of 1989 filed by Muhammad Amir, Bhai Khan, Nazir, Muhammad Khan and Noor Muhammad appellants. They were convicted and sentenced by learned Additional Sessions Judge, Khushab on 14-5-1989 for the murder of Sher Muhammad to undergo Imprisonment for life under section 302/149, P.P.C., with a fine of Rs,20,000 each, or in default six months R.I. They were also convicted and sentence under section 148, P.P.C., to undergo three years R.I., with a fine of Rs,2,000 each or in default six months R.I. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C., was also granted to the appellants.
2. Occurrence in this case took place on 4-5-1988 at 6-00 a.m. Within the area of Village Dhak at a distance of 9-k. Ms. Away from Police Station, Katha Saghral while the matter was reported to the police at 8-00 a.m. On the same day and the formal F.I.R. Exh.P.B. Was recorded by Amir Akbar Khan S.I./S.H.O., P.W.8.
3. According to the F.I.R., Exh.P.B. The facts of the prosecution case are that on 4-5-1988, the complainant Muhammad Khan had proceeded to the dera of his brother. His brother Sher Muhammad had proceeded for his land to irrigate the same. The moment Sher Muhammad reached on the road in his land, then all of a sudden, Muhammad Amir, Bhai Khan, Nazir and Muhammad Khan sons of Falak Sher armed with sotas, Noor Muhammad son of Muhammad Sher armed with hatchet who were already sitting in an ambush, emerged therein. Bhai Khan raised a lalkara that they will not be sparing Sher Muhammad, whereupon Bhai Khan inflicted a sota blow upon the head of Sher Muhammad, who after sustaining this injury fell down. Thereafter, all the accused started inflicted sota blows and hatchet blows upon the person of Sher Muhammad and as such they caused so many injuries upon his person. In the meantime Muhammad Tufail son of Bahadur Khan, Muhammad Sher son of Saeed Muhammad and Muhammad Bakhsh son of Khuda Bakhsh who had seen the occurrence reached there, whereupon all the accused persons left the place of occurrence and proceeded toward village Dhak.
4. Motive behind the occurrence was that in the year 1976 Sher Muhammad brother of the complainant and Muhammad Aslam his nephew had injured Ghulam Hussain etc., and a criminal case was registered against them.
5. After registration of formal F.I.R., Exh.P.B., Amir Akbar Khan P.W.8 went to hospital, prepared injury statement of Sher Muhammad deceased Exh.P.K. And also the inquest report Exh.P.L. After sending the dead body for post-mortem examination, he proceeded to the place of occurrence and took into possession blood-stained earth vide memo Exh.P.C. He arrested Muhammad Amir, Bhai Khan, Nasir, Muhammad Khan and Noor Muhammad appellants on 7-5-1998. On 20-5-1998, Bhai Khan led to the recovery of sota P.2, which was taken into possession vide memo. Exh.P.E. On the same day, Noor Muhammad led to the recovery of hatchet P.5, which was taken into possession vide memo. Exh.P.H. Similarly, on 20-5-1988, Muhammad Nazir led to the recovery of sota P.4, Muhammad Khan also got recovered sota P.3 and Muhammad Amir got recovered sota P.1, which were taken into possessions vide recovery memos. Exh.P.G., Exh. P. F. And Exh.P. B respectively. After completion of investigation all the accused were challenged to face the trial.
6. Prosecution in order to prove its case produced 10 witnesses in all, thereafter, the learned D.D.A., tendered in evidence reports of Chemical Examiner and that of Serologist Exh.P.O., and Exh.P.O./1 and closed the prosecution case, then the statements of the appellants were recorded under section 342, Cr.P.C., in which they pleaded innocence and claimed false implication in this case.
7. Learned counsel for the appellants submits that prosecution has failed to prove the motive in the instant case because according to the F.I.R., in 1976 deceased Sher Muhammad had given beating to Ghulam Hussain brother of appellants Nos.1 to 4 and in order to take revenge all the appellants caused the death of the deceased. Further submits that motive was against Ghulam Muhammad but he was not a party to this occurrence and moreover no unto wards incident took place between deceased Sher Muhammad and Ghulam Hussain during this period of 12 years. Further submits that when post-mortem was conducted on the dead body of the deceased according to the doctor his stomach was empty and faucal matter was present in his large intestine, it means that occurrence had taken place in early hours in the morning. Further submits that both the eye- witnesses had no reasons to be present at the place of occurrence because they had no land at the place of occurrence or near the place of occurrence and both the eyewitnesses are close relations of the deceased inasmuch as P.W.3 Muhammad Khan is real brother of the deceased while sister of Muhammad Sher P.W.4 was married to brother of the deceased. Further submits that in the F.I.R., it was stressed that the occurrence had taken place in the land of the deceased Sher Muhammad but according to site plans Exh. P A and Exh. P.A. / 1 the land belongs to Ghulam Fatima and the deceased have nothing to do with that. He also submits that prosecution tried to improve its case and in this regard efforts were made to show that the occurrence had taken place in the land of Sher Muhammad deceased according to Exh.P.A./1 in site plan words "field of deceased Sher Muhammad" were deleted. Learned counsel submits that deceased had no land at the place of occurrence or near the place of occurrence, neither he was tenant in that land. He submits that appellants have been falsely implicated in this case due to suspicion. Further submits that appellants Nos.1 to 4 are real brothers while Noor Ahmad appellant was their cousin, that all the male members of the appellant's family have been falsely roped in this case, that as far as recoveries are concerned, weapons were not blood-stained. Lastly, submits that prosecution has failed to prove its case against the appellants beyond any shadow of doubt.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant, who has also filed Criminal Revision No,361 of 1989 for the enhancement of sentence of the appellant submits that it was a case of promptly lodged F.I.R., that specific motive was attributed to the appellants, that both the eye-witnesses are independent, that recoveries were effected from all the appellants, that ocular account is corroborated by medical evidence, that prosecution has proved its case against all the appellants. He has also relied upon 1999 SCM R 2722 head note E.
9. I have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. First of all, I will deal with motive of the case. In the instant case occurrence took place in 1988 and the deceased in 1976 along with his nephew caused injuries on the person of Ghulam Hussain but during this intervening period from 1976 to 1988 no unto wards incident had taken place and even no occurrence had taken place. Motive should have been with Ghulam Hussain real brother of appellants Nos.1 to 4 but he did not join the appellants, he did take part in the occurrence, he never gave any cause of annoyance to the deceased. As far as, appellants are concerned, they had no grudge against the deceased so there was no question according to my opinion of killing the deceased in the instant case.
10. The upshot of the above discussion is that motive has not been proved in the instant case against any of the appellants.
11. Now I take up the eye-witnesses account. According to the eye-witnesses and particularly the complainant, who is real brother of the deceased, occurrence had taken place in the land of deceased Sher Muhammad but according to the site plans Exh.P.A. And Exh.P.A./1 the land belongs to Ghulam Fatima. There is not an iota of evidence on record to prove that occurrence took place in the land of the deceased. Deceased had no business to be present at the place of occurrence.
There was no turn of water of the deceased and if there was any turn of water that was of Ghulam Fatima which had already taken place three days prior to the present occurrence. Both the eyewitnesses produced by the prosecution are close relations of the deceased, complainant is real brother of the deceased and the other eyewitness is cousin of the deceased, they had no business to be present at the spot nor they had any land at the place of occurrence or near the place of occurrence, particularly, the complainant is living 1-1/2 k.Ms. Away from the place of occurrence, no person from the adjacent fields has been produced in this case to support the prosecution case.
Both these alleged eye-witnesses can be termed as a chance witnesses but their presence at the spot has not been proved.
12. For the just decision of the case, the statement of Dr. Muhammad Afzal P.W.9 is very essential, which is reproduced below: ' On 4-5-1988 I was posted as M.O., in T.H.Q. Hospital Khushab. On the same day at about 1-00 a.m. I performed post-mortem examination on the dead body of Sher Muhammad deceased I found the following injuries on the dead body:
(1) A contused wound 4 c.m. x 0.5 c.m. x bone deep on the head left frontal rigor, 2 c.m. From the hair line.
(2) A contusion 3 c.m. x 1 c.m. On the outer side of right elbow joint.
(3) A bruise 8 c.m. x 1.5 c.m. On the right upper middle outer side.
(4) A bruise 3 c.m. x 1 c.m. On back of right wrist joint.
(5) A bruise 3 c.m. x 1 c.m. On the back side of left shoulder.
(6) Two bruises 5 c.m. x 1.5 c.m. On the left upper arm outer side.
(7) An incised wound 2.5 c.m. x 0.5 c.m. x bone deep on the back of left fore-arm near the elbow joint.
(8) A contusion 1.5 c.m. x 1.5 c.m. On the back side of left hand.
(9) Multiple bruises in the area of 40 c.m. x 10 c.m. On the outer side of left hip joint and left thigh.
(10) A bruise 10 c.m. x 1 c.m. On the back lumbow sacral region.
(11) Multiple bruises in the area of 35 c.m. x 30 c.m. On the back side of chest.
(12) An incised wound 8 c.m. x 1 c.m. x bone deep on the front side of left leg.
(13) Two incised wounds 1 c.m. x 0.5 c.m. x bone deep each on the front side of right leg.
(14) Multiple bruises in the area of 35 c.m. x,22 c.m. On the outer side of right hip and thigh.
' Under the injury No,1, scalp was congested. Blood cloth present on the surface of brain.
THORAX ' Under the injury No,11 muscles and intercostal muscles were congested. Heart was healthy and contracted. Stomach was healthy and empty. Large intestine was healthy and contained faucal matter. Under injuries Nos.9 and 14 muscles were congested while adjoining muscles of injuries Nos.12 and 13 were congested. Rest of the organs was healthy.
OPINION.
' All the injuries were ante-mortem. Injuries Nos.7, 12 and 13 were caused by sharp weapon while rest of the injuries were caused by blunt weapon. In my opinion, death was due to shock and hemorrhage due to injuries Nos.1, 9, 10, 11, 12, 13 and 14 collectively, which were sufficient to cause death in ordinary course of nature. Rest of the injuries were simple.
' The probable time between injuries and death was within 2 hours while between death and post- mortem examination was 1 to 4 hours.
13. The above said statement of the doctor would show that the stomach of the deceased was empty and the large intestine was faucal matter, it means that occurrence had taken place in early hours of the morning not witnessed by anybody because it was a month of May, when sun rise at between 4-30 a.m. To 5-00 a.m. In my opinion, this occurrence was not witnessed by anybody and in fact it was an un-witnessed occurrence but due to suspicion the appellants were named in the instant F.I.R., then as far as recovery of weapon is concerned, none of the weapons was stained with blood. Ocular account is not corroborated by medical evidence and also is not supported by recovery of weapons.
14. The upshot of the above discussion is that prosecution has failed to prove its case against the appellants beyond any shadow of doubt. This . Conviction and sentence awarded to the appellants by the learned Trial Court is set aside. They are on bail and they shall be discharged from their bail bonds.