' SHAIKH ABDUR RAZZAQ, J.--- Succinctly stated the prosecution case as it emerges from Rapt No,6 Exh.P.J/1, dated 24-8-1996, lodged at the instance of Muhammad Mansha since deceased and scribed by Sarfraz Ahmed, Moharrir is that he is resident of Chak No,319/HR and deals in milk. On the same day at 7-30 a.m. He was on his way to Chak No,317/HR with containers of milk on his cycle and was short of one square to Chak No,317/HR, he saw three persons namely Muhammad Aslam son of Muhammad Siddique resident of Chak No,330/HR, Muhammad Yasin son of Muhammad Ali resident of Chak No,319/HR and Faqir Hussain resident of Chak No,340/HR armed with Sotas. They disembarked him from cycle and started abusing him. They further informed him that he (Muhammad Mansha) shall be taught a lesson for giving evidence against them. Thereupon, Muhammad Aslam inflicted a Sota blow on the wrist of his left arm whereas Yasin gave him Sota blow on his right ankle. The Sota blow of Faqir Hussain fell on his left ankle. All the three assailants further caused him injuries with their respective weapons. On his hue and cry Muhammad Aslam son of Hakim Ali and Muhammad Anwar son of Badaruddin residents of Chak No,319/HR were attracted who witnessed the occurrence and rescued him from the assailants. He stated that he had been attacked and caused injuries by the accused as he was a witness in a theft case registered against them as well as Muhammad Ali at whose abetment the accused committed this offence. Abdul Aziz, Inspector (P.W.12) was posted as S.H.O. At Police Station Marot at the relevant time. He handed over the investigation to Ghulam Mustafa, A.S.-I. (P.W.9) who visited the place of occurrence and prepared site plan Exh.P.H. He recorded the statements of Muhammad Aslam and Muhammad Anwar and supplementary statement of injured Muhammad Mansha. On 23-8-1996 he recorded the statements of Muhammad Younas and Muhammad Anwar. He arrested Muhammad All on 31-8-1996. He handed over the investigation to S.H.O. Abdul Aziz (P.W.12) who visited B.V.H. On 12-9-1996 and prepared inquest report of Muhammad Mansha. He handed over his dead body to Sher Muhammad, Constable for his post-mortem examination. On the same day i,e, 12-9-1996 Sher Muhammad, Constable (P.W.6) produced last-worn clothes of the deceased consisting of Dhoti P.3, which he secured vide memo. Exh.P.C. After usual investigation the case was sent up to the Court for trial.
2. A charge under sections 302/109/337-F(i), P.P.C. Was framed against the accused to which all of them pleaded not guilty and claimed trial.
3. To bring home guilt to the accused prosecution examined Muhammad Aslam son of Alam Din P.\1.l who deposed that he alongwith Muhammad Younas attended a Punchayat which was convened at the Dera of Zafar Iqbal on 23-8-1996, that while they were returning to their village and had reached canal bridge in the area of Chak No,318/HR, they saw the accused Yasin, Faqir Hussain and Muhammad Aslam sitting near the bridge, that Muhammad Ali accused was instigating/abetting them to teach lesson to the deceased for being a witness against them in a theft case, that on the next day he went to the house of Muhammad Manso to inform him about the conspiracy but he could not see him, that after some time he came to know that Muhammad Mansha had been attacked by aforementioned accused, Muhammad Younas son of Qasim Ali P.W.2 has corroborated the version of P.W.1. Muhammad Aslam alias Saleem P.W.3 is an eye- witness of this occurrence and has corroborated the prosecution version as it emerges from Rapt No,6 Exh.P.J. He further deposed that accused Muhammad Aslam and Yasin had led to the recovery of Sotas P.1 and P.2 respectively which were secured vide memos. Exhs.P.A. And P.B. Respectively and were attested by him as well as Muhammad Yousaf P.W.4. Muhammad Yousaf P.W.4 is the real brother of the deceased. He deposed that he was informed about this occurrence by Sher Muhammad Chotia. He then proceeded to the place of occurrence alongwith police. He removed the injured Muhammad Mansho to police station where he lodged Rapt No,6 Exh.P.J. He then removed him to hospital from where he was referred to B.V.H., Bahawalpur where he died. He then brought his dead body at Police Station Marot and identified the same at the time of postmortem examination. He attested memo. Of recovery of last-worn clothes of deceased Exh.P.C. He also attested memos. Exh.P.A. And Exh.P.B. Referred above. Dr. Muhammad Azhar P.W.5 examined Muhammad Mansha injured on 24-8-1996 at 8-30 a.m. And found the following injuries:-
(1) Multiple scratches with swelling 1 x 5 c.m. On the back of left forearm near the wrist-joint.
(2) A scratch and swelling 8 x 5 c.m. On the front of right upper arm.
(3) A scratch on the back of lower portion of right forearm near the wrist-joint.
(4) A bruise 6 x 3 c.m. On the inner side of right thigh in the middle portion.
(5) An incised wound 3 x 1 c.m. x bone deep in front of right lower leg near the ankle-joint.
(6) A bruise 12 x 3 c.m. On the inner side of left thigh in the middle part.
(7) An incised wound 4 x 1 c.m. x bone deep on the front of left lower leg.
(8) Complaint of pain in the back.
' He issued M.L.R. Exh.P.D. And also signed statement of injured Exh.P.D./1 as well as X-ray reports Exhs.P.D./2 to P.D./4.
4. He further deposed that on 13-9-1996 he conducted the postmortem examination of the deceased and found following injuries:--
(1) A lacerated wound 8 x 7 c.m. x bone deep on the outer side of left forearm. There was fracture of one bone and nailing has been done. Wound was infected.
(2) An infected wound 14 c.m. x 7 c.m. x muscle deep on the left knee-joint with gangrenous skin around the wound.
(3) A wound 3 c.m. x 2 c.m. On the front of left lower leg which was infected.
(4) An infected wound 9 c.m. x 4 c.m. x bone deep on the front of right lower leg.
' In his opinion cause of death was due to cardiopulmonar failure from septicemia of multiple infected and gangrenous wound. He produced post-mortem examination report Exh.P.E., diagram Exh.P.E./1 and further stated that inquest report Exh.P.E./2 and application for postmortem examination Exh.P.E/3 also bear his signature. He handed over the dead body alongwith last-worn clothes of the deceased to police. Alam Din P.W.6 identified the dead body of Muhammad Mansha at the time of post-mortem examination and also attested memo. Of recovery of last-worn clothes of the deceased Exh.P.C. Muhammad Arshad, Patwari P.W.7 visited the place of occurrence on 25- 11-1996 under the direction of police and prepared the site plan Exh.P.F. And Exh.P.R./1. On the pointation of witnesses. Sher Muhammad, Constable P.W.8 escorted the dead body of deceased Muhammad Mansha on 13-9-1996 for his post-mortem examination. He was handed over last- worn clothes Exh.P.C. Of the deceased which he produced before the Investigating Officer, who secured it vide memo. Exh.P.C., which bears his signature. Ghulam Mustafa, A.S.-I. Is P.W.9 whose evidence has already been discussed above. Muhammad Ramzan, S.-I. P.W.10 took over the investigation on 2-10-1996. He arrested all the accused except Muhammad Ali on 22-11-1996. The accused Muhammad Aslam and Yasin led to the recovery of Sotas P.1 and P.2 respectively which he secured vide memos. Exhs.P.A. And P.B. Respectively. Dr. Muhammad Zafar Iqbal P.W.11 deposed that on 9-9-1996 Muhammad Mansha was admitted in his ward who died on 12-9-1996 and death certificate Exh.P.1 issued by him, bears his signature. Abdul Aziz, Inspector P.W.12 is also an Investigating Officer and his evidence has already been discussed above. Thereafter, learned D.D.A.
Closed the prosecution evidence vide his statement dated 20-3-1998.
5. When examined under section 342, Cr.P.C. The accused Ziaul-Haq, Muhammad Ali, Muhammad Yasin, Muhammad Aslam, Faqir Hussain and Muhammad Ramzan denied the prosecution version and stated that they have been implicated in this case falsely. In reply to Question No,9 the accused Muhammad Aslam stated as follows:-- "I am innocent. In fact Muhammad Mansha deceased used to sell milk and he used to carry a cane normally of the weight 40/50 Kgs. On the cycle. On the day of occurrence some time in the morning his cycle collided with some motorcyclist in the area of Chak No,317/HR as a result of which his cycle alongwith milk cane slipped and as a result of this accident Muhammad Mansha received several scratches and other injuries on the different parts of his body. Sher Muhammad and Tanna Chotia reached there and informed Muhammad Yousaf P.W. The real brother of deceased about that accident. None of the eye-witness namely Muhammad Aslam alias Saleem or Muhammad Anwar was present at the time of occurrence at the place of occurrence. Muhammad Yousaf P.W.
On the receipt of information given by Sher Muhammad and Chotia went to the police station and reached at the place of occurrence alongwith the police and took Muhammad Mansha in injured condition and then he was admitted in the hospital 34 days after the occurrence, Muhammad Yousaf in connivance with the local police fabricated a false story and prepared fictitious Rapt No,6 as well as on the basis of the same formal F.I.R. Exh.P.G.
' Muhammad Mansha deceased was not properly attended and treated in Rural Health Centre Marot, as a result of which the injuries on his person which were entirely on the non-vital parts of the body i,e, hands and legs and were mostly scratches -which got infected due to improper treatment and when the injuries became highly infected, he was shifted to ' B.V.H. Hospital after 10 days after the occurrence, where he due to that reason expired."
' None of the accused either chose to record his statement under section 340(2), Cr.P.C. Or to produce any evidence in his defence.
6. On the basis of evidence adduced by the prosecution the trial Court vide judgment, dated 29-4- 1998 while acquitting Muhammad Ali, Muhammad Ramzan and Zia-ul-Haq convicted the accused Muhammad Yasin. Muhammad Aslam and Faqir Hussain under section 30(b)/34, P.P.C. And sentenced each of them to imprisonment for life. However, they have been extended benefit of section 382-B, Cr.P.C.
7. The accused Faqir Hussain, Muhammad Yasin and Muhammad Aslam have filed Jail Appeals Nos.55 of 1998, 64 of 1998 and 56 of 199R. The accused Muhammad Aslam and Muhammad Yasin have also filed Criminal Appeal No,71 of 1998 and similarly the accused/convict Faqir Hussain has also filed the instant appeal i,e, Criminal Appeal No,58 of 1998. Muhammad Yousaf has filed Criminal Appeal No,62 of 1998 against acquittal of Muhammad Ali accused. Similarly Muhammad Yousaf has also filed Criminal Revision No,40 of 1998 for the enhancement of sentence awarded to the accused/convicts.
8. As all these criminal appeals as well as criminal revision arise out of the same judgment so these are being disposed of by this single judgment.
9. We have heard the learned counsel for the parties and have gone through the record.
10. It is submitted by Mr. Muhammad Afzal Wattoo, learned counsel for the appellants that prosecution has failed to bring home guilt to the accused beyond any reasonable doubt. While elaborating his contention he submitted that allegation against Muhammad Ali accused, since acquitted, is that he had abetted the offence and instigated his co-accused to commit this offence, that on this score prosecution has examined P.W.1 Muhammad Aslam son of Alam Din and P.W.2 Muhammad Younas who are cousins and real brothers of the deceased. That evidence of P.Ws. I and 2 suffers from contradictions. Muhammad Aslam P.W.1 deposes that he had gone all alone to the Dera of Zafar Iqbal and P.W.2 Muhammad Younas came late on whereas P.W.2 Muhammad Younas deposes that both of them had gone together, that both of them are said to have visited the police station but failed to inform any police official about said abetment, that it is for the first time on 27-8-1996 that they informed the S.H.O. About this abetment, that there is no explanation as to why they did not bring the factum of abetment either to the notice of police or to the notice of the deceased prior to 27-8-1996, that as such evidence of abetment hardly carries any value. While referring to oral evidence regarding occurrence he stated that it only consists of statement of Muhammad Aslam alias Saleem (P.W.3) a brother-in-law of the deceased, that as the other eye-witness Muhammad Anwar has been given up by the prosecution, so evidence of Muhammad Aslam P.W.3 lacking any corroboration cannot be relied upon, that status of said witnesses is of chance witnesses as they are not residents of place of occurrence and are residents of Chak No,319-HR situated at a distance of 2 miles away from the place of occurrence that no reason whatsoever has been given, of their presence at the place of occurrence at the relevant time and this fact further makes their presence on the spot highly doubtful that even the conduct of P.W.3 makes his very presence doubtful, as had he been present on the spot, he would have tried to rescue the deceased who was his brother-in-law (Sala) and would have tried to shift him to hospital, that as P.W.3 neither rescued the deceased nor removed him to hospital so it proves that he was not present on the spot and has been introduced later on, that as per statement of P.W.3, he asked Sher Muhammad Chotia and others to inform the relatives of the deceased about this occurrence as they happened to pass from there, that this stand of P.W.3 does not appeal to reason as had he been there he would have gone to inform the relative of the deceased as he was brother-in-law of the deceased, that it appears that occurrence was seen by Sher Muhammad Chotia who informed Muhammad Yousaf (P.W.4) who reached the spot with police, that even Sher Muhammad Chotia has not been examined in the instant case, that it has been admitted by P.W.3 that when police came on the spot 5/6 witnesses were present but their statements were not recorded. He thus submitted that even oral evidence does not support the prosecution version beyond reasonable doubt. He next argued that oral evidence also does not find corroboration from medical evidence. To substantiate his contention, he referred to the contents of Rapt No,6 Exh.P.J.
Where it has been stated by the injured since deceased that he was given only three injuries and that too with blunt weapons. He argued that as per medical examination by P.W.5 Dr. Muhammad Azhar as many as injuries have been found on the person of injured since deceased. Out of the said injuries, injuries Nos.5 and 7 are incised wound which could not be caused with Sotas, that this discrepancy between the oral and medical evidence further makes the prosecution case doubtful.
He also referred to the statement of P.W.5 Dr. Muhammad Azhar Who also conducted post-mortem examination of the deceased and issued post-mortem examination report Exh.P.E. He submitted that as per statement of P.W.5 it has come on record that the injured could have received scratches if he had fallen from motorcycle, that it has also been stated by the doctor that death was due to cardiopulmonary failure from septicemia of multiple infected and gangrenous wounds, that doctor has nowhere stated that injured since deceased died as a result of any injuries sustained by him. On the other hand he has categorically admitted that none of the injuries on the person of the deceased was of such nature which could cause death of the deceased. He further admits that it was septicemia and gangrenous which occurred on the injuries which could not be controlled in his hospital and as such he referred him to B.V.H., Bahawalpur. He further admitted that cause of death is due to septicemia and gangrenous of the wounds in the instant case.
11. Learned counsel next argued that Rapt No,6 Exh.P.J cannot be treated as F.I.R. As neither its maker nor its scribe Sarfraz Ahmed, Moharrir/H.C. Has been examined, that similarly Rapt No,6 Exh.P.J. Cannot be treated as dying declaration as it has not been recorded either in the presence of doctor or in the presence of Magistrate and it is nothing but a statement under section 161, Cr.P.C.
He also challenged the admissibility of Rap No,6 Exh.P.J. On the ground that its copy was not delivered to the accused as required by section 265-C, Cr.P.C. He thus, submits that all these defects make the prosecution case doubtful. He also referred to the evidence of recovery of Sotas P.1 and P.2 and stated that as none of it was bloodstained so it has rightly been disbelieved by the trial Court. He also referred to the motive aspect of the prosecution version and stated that prosecution has failed to establish the same. He submitted that motive is a double-edged weapon, as while it may be sufficient reason for commission of the offence by the accused, it can equally serve as a reason for the false involvement of the accused. He further argued that uncorroborated testimony of a prosecution witness on the factum of motive cannot be made a basis for passing an order of conviction and placed reliance upon Muhammad Ashraf and 2 others v. The State 1998 SCMR 279. He thus, submitted that prosecution has failed to prove its case against the accused beyond any reasonable doubt, as such impugned judgment is not sustainable in the eyes of law.
12. So far as Criminal Revision No,40 of 1998 for the enhancement of sentence to the appellants and Criminal Appeal No,62 of 1998 against acquittal of Muhammad Ali are concerned, he submitted that as prosecution has failed to establish its case beyond doubt so these merit dismissal.
13. Conversely, the learned counsel for the complainant assisted by the learned counsel for the State supported the judgment under appeal.
14. Now let us see if the prosecution has been able to bring home guilt to the accused/appellants or not.
15. It is evident from Rapt No,6, dated 24-8-1996 (Exh.P.J.) that the deceased was waylaid by accused Muhammad Aslam, Faqir Hussain and Yasin while he was on his way with containers of milk on his cycle. The aforesaid accused have been shown to be armed with Sota whereas their co-accused Muhammad Ramzan, Ziaul Haq and Muhammad Ali have been described as unarmed and they have not been assigned any active role except that of abetment and too is attributed to Muhammad Ali. The accused/appellants/convicts Yasin, Muhammad Aslam and Faqir Hussain have been assigned one blow each on the person of deceased. It is also evident from record that Muhammad Aslam is resident of Chak No,330/HR whereas Faqir Hussain, Muhammad Ramzan alias Jani and Ziaul Haq are residents of Chak Nos.340/HR, 328/HR and 163/HR. The presence of the accused who are residents of different places at the relevant time hardly stands to reason.
Similarly the presence of P.W.1 Muhammad Aslam and Muhammad Anwar (given up) is also doubtful as both of them do not belong to the place of occurrence and are residents of Chak situated at a distance of two miles away. Their presence also becomes doubtful as had they been present on the spot and knew about the abetment of Muhammad Ali accused, they must have informed Muhammad Mansha immediately or at the earliest available opportunity. However, it has come on record that they brought the said fact to his notice on 27-8-1996. This silence on their part for three days speaks volume about their veracity. Thus, the presence of accused as well as P.Ws. Is not free from doubt.
16. The prosecution case mainly hinges upon the statement of Muhammad Aslam (P.W.3) who claims to have witnessed the occurrence. But his solitary statement cannot be believed as his co- witness Muhammad Anwar has not been examined having been given up. Again the statement of P.W.3 is that of an interested witness as sister of the deceased is married with him whereas his sister was married to the deceased. Thus, the evidence of an interested witness lacking any corroboration cannot be made base of a capital charge. The solitary oral and uncorroborated testimony of P.W.3 further becomes doubtful when it is taken into consideration in the light of medical evidence which has come on record through the statement of Dr. Muhammad Azhar (P.W.5). As per statement of P.W.3, the deceased Muhammad Mansha was caused injuries by the assailants with their respective weapons i,e, Sotas. However, he stands contradicted as the deceased had also received two incised wounds (injuries Nos.5 and 7) on his person. There is nothing on the record to suggest as to how the deceased received said incised wounds, if he had been caused injuries only with Sotas. The only, irresistible conclusion, which can be derived is that deceased Muhammad Mansha was not caused injuries as alleged by the prosecution but he had received the injuries on his person in some other way as stated by accused Muhammad Aslam while recording his statement under section 342, Cr.P.C. The explanation given by accused Muhammad Aslam appeals to reason and also fits in the circumstances of this case. The presence of P.W.3 at the relevant time also becomes highly doubtful when his conduct is taken into consideration. Had P.W.3 been present on the spot, he must have tried to rescue the deceased from the assailants and in that eventuality must have received some scratches on his person.
However, this is not the case, as he is silent on that score. Again had he been present on the spot, he would have tried to take the injured to hospital and this is also not the case of prosecution. This conduct of P.W.3 does not appeal to the mind of a prudent person. Again it has come on record through his statement that 5/6 persons were attracted at the time of occurrence and they were also present when Investigating Officer came but their statements have not been recorded and this conduct of Investigating Officer also gives a fatal blow to the prosecution case. Again he admits that while he and Muhammad Anwar P.W. (given up) alongwith 4/5 other persons were present on the spot, Tania and Sher Muhammad happened to pass on their tractor and were sent to the Dera of Muhammad Mansha to inform the relatives of the deceased about this occurrence. It is very strange that Muhammad Aslam P.W.3 is brother-in-law of the deceased but he does not go to the village to inform the relative of the deceased and on the other hand requested Tania and Sher Muhammad to do the needful. This conduct of P.W. Also makes his presence on the spot highly doubtful.
17. Besides this oral evidence prosecution has tried to corroborate the prosecution version by producing medical evidence which has come on record through the statement of Dr. Muhammad Azhar (P.W.5). It is evident from the statement of P.W.5 that he has categorically stated that none of the injuries on the person of deceased was responsible for causing death of the deceased. He admits that it is only septicemia and gangrenous of the wounds which are responsible for the death of the deceased. It is also fact that injured, since deceased, received injuries on 24-8-1996 whereas he died on 12-9-1996. Thus, even medical evidence does not come to the rescue of the prosecution and in no way it lends support to the prosecution version.
18. The upshot of the above discussion is that prosecution has failed to bring home guilt to the accused/appellants/convicts beyond reasonable doubt. Accordingly criminal appeal is accepted and judgment of conviction passed against Muhammad Aslam, Faqir Hussain and Muhammad Yasin accused/convicts/appellants is hereby set aside. They are ordered to be released forthwith if not required in any other case.
19. With the acceptance of this appeal, Criminal Appeal No,62 of 1998 and Criminal Revision No,40 of 1998 stand dismissed.