' MUHAMMAD SIDDIQUS, J.-According to the prosecution, the brief facts of the case are that on 23- 9-1974, at about 8.00 a.m., Ghulam Hussain P. W. Along with Lal Khan P. W. Was returning to his house from the house of his sister Mst. Bhag Bhari. When they reached near the shop of lqbal Kurnhar, they saw Muhammad HAFEEZ, Muhammad Khan appellants and Shah Wali and Patch Khan (acquitted co-accused) armed with tokas entering the baithak of Hafiz Noor Khan deceased.
At that time, the door of the baithak was open and the deceased was reciting the Holy Qur'an while sitting on a cot in front. Of the door. The complainant and Lal Khan P. W. Jumped over the wall of the haven and ran towards the said baithak. They saw Shahwali (acquitted co-accused) giving the first blow with his toka on the head of the deceased. They also saw Muhammad Hafeez appellant inflicting another toka blow on the hind side of the head near the neck of the deceased. Another toka blow was given by Muhammad Khan appellant which fell at that very place. Fateh Khan (acquitted co-accused) also inflicted a toka blow on the back of the shoulders of the deceased.
The complainant and Lal Khan P. W. Raised alarm on which all the four accused persons started running away carrying their weapons of offence with them. They were seen running by Abbas Khan P. W. The deceased succumbed to his injuries on the spot. Ghulam Husain complainant leaving others on the spot, went to Police Station, Chakwal where he lodged the F. I. R. (Exh. P. G.) at 9-00 a.m. On the same day, i,e, 23-9-1974. A. S. I. Nisar Ahmad P. W. After registering the case, reached the spot, prepared the injury statement (Exh. P. N.) and the inquest report (Exh. P.
0.) of the deceased and despatched the dead body to the mortuary for post-mortem examination.
He inspected the spot and took into possession blood-stained earth vide Memo. Exh. P. H. He also took into possession articles (Exhs P. 5 to P. 12) vide Memo. Exh. P. J. The Investigating Officer arrested Shahwali and Fateh Khan (acquitted co-accused) on 23-9-1974, while the present appelants were taken into custody on 29-9-1974. He also got prepared the site plan (Exb. P. A.) from Draftsman Nawab Khan P. W. On interrogation, Muhammad Hafeez appellant led to the recovery of toka (Exh. P. 14) which was taken into possession and sealed into a parcel vide memo. Exh. P. K.
Similarly, Muhammad Khan appellant got recovered toka (Exb. P. 15) which was also taken into possession and sealed into a parcel vide Memo. Exh. P. L After the usual investigation, the Police challaned all the four accused persons under section 302/34, P. P. C. They were tried by the Sessions Judge, Jhelum, who vide the impugned judgment dated 29-34975 found the present appellants guilty under section 302/34, P. P. C. And sentenced Muhammad Hafeez appellant to death subject to confirmation by this Court and also to pay a fine of Rs, 2,000 or in default thereof to suffer rigorous imprisonment for two years. Muhammad Khan appellant was sentenced to life imprisonment and also to pay a fine of Rs, 2,000 or in default thereof to suffer two years' rigorous imprisonment. Half of the fine, if realized, was ordered to be paid to the heirs of the deceased as compensation. Shahwali and Pateh Khan Co-accused were, however, acquitted by the trial Court.
The appellants have challenged their convictions and sentences before this Court through the present appeal. The ease is also before us under section 374, Cr. P. C. For confirmation of the sentence of death awarded to Muhammad Hafeea appellant by the trial Court. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.
2. Dr. Asghar. Hamid Qureshi P. W. On 23-9-1974 at 4 p.m. Performed the post-mortem examination on the dead body of Hafiz Noor Khan and found the following injuries on it :
(1) Incised wound 5f x 1/2'x brain deep on the anterior part of the scalp 1' to the right of the middle line antero-posteriorly reaching the forehead. The skull bone underneath was cut through and through.
(2) Incised wound lower limit 7' a deep i,e, the spinal cord deep over the back of upper part of the neck. The depth of the injury went in front through the lower part of first cervical vertebrae and had cut through the medulla oblongate between first and second cervical vertebrae. The upper border of this wound was 9' long and 3' deep over the lower part of the back of the skull.
(3) Incised wound 4' x 1' x 3/4' deep on the back and left side of the neck lower most part close to the back.
(4) Incised wound 4}'a 1/4' x skin deep on lower part of back of neck and upper part of the back in line with injury No, 3.
Death in the opinion of the doctor was due to injury to the brain and division of medulla oblongate and upper part of the spinal cord and bleeding. Injuries Nos. 1 and 2 were fatal individually as well as collectively and were sufficient to cause death in the ordinary course of nature. All the injuries were caused by a sharp-edged weapon. Time between the injuries and death was sudden and between death and post-mortem examination 6 to 10 hours.
3. The appellants when examined under section 342, Cr. P. C. Denied the prosecution allegations.
They, however, admitted that they were brothers inter se. Muhammad Hafeez appellant further admitted that in 1945, Muhammad Ashraf, father of Ghulam Hussain complainant and Hat7, Noor Khan deceased, was murdered for which Wall Dad, brother of acquitted co-accused Shahwali, and their relation Ujagar were challaned, but ultimately only Wali Dad was convicted by the High Court.
This appellant also admitted that in 1947, Noor Khan brother of co-accused Shahwali, said Ujagar and his brother Fateh Khan were murdered for which Noor Khan deceased, his brother Suleman and others were tried and convicted, but were released in 1956 when Pakistan was declared a Republic. This appellant has further stated that his father died about 2/3 months before the present occurrence and the students from the local mosque were invited for Qur'an Khawani, but he denied the suggestion that the said students were insulted or maltreated by the deceased and the complainant. When asked if he had anything else to say, he stated as under : "Muhammad Khan, Raman and Fateh Khan were murdered, while my brother Ali Muhammad and father Din Muhammad were seriously injured about 20/22 years ago. Many persons were challaned including Ahmad Khan, a brother-in-law of Ghulam Hussain complainant. A paternal aunt's daughter of said Ahmad Khan is wife of Ghulam Hussain complainant. Furthermore, a paternal aunt's son of Lal Khan was also sentenced to death and Noor Khan and Ghulam Ali, other collaterals of Lal Khan P. W. Were also challaned in the above-mentioned murder."
' Muhammad Khan appellant also made more or less similar statement. The appellants, however, produced no evidence in defence.
4. In support of its case, the prosecution produced two eye-witnesses, namely, Ghulam Hussain (P.
W. 6) and Lal Khan (P. W. 7). The prosecution also relied upon the evidence of recoveries and motive. The prosecution produced Abbas Khan (P. W. 8) as vajtakkar witness. The trial Court believed the prosecution evidence so far as the present appellants are con-, coned and convicted and sentenced them as mentioned above.
5. Ghulam Hussain P. W. Is the real brother of Ha& Noor Khan deceased, while Lal Khan P. W. Is also closely related to the deceased. Thus, both the eye-witnesses produced by the prosecution are not only related to the deceased, bat also inimical towards the accused party. Admittedly, there was long-standing enmity between the accused party and the complainant party resulting in number of murders on both sides. It is in this background that the trial Court observed as under "As discussed above, the complainant party and for that matter all the essential P. Ws. Cited and produced are at daggers drawn against the accused since long. So, I would refrain from placing explicit reliance upon the evidence furnished by the P. Ws. Unless there is further corroboration."
' The trial Court found no such corroboration against the co-accused Shahwali and Fateh Khan and, therefore, acquitted them. As regards the present appellants Muhammad Hafeez and Muhammad Khan, the learned Sessions Judge found the required corroboration from the recovery of tokas (Bxhs. P. 14 and P. 15). As mentioned above, toka (Exh. P. 14) was recovered at the instance of Muhammad Hafeea appellant vide memo. Exh. P. K. Attested by Muhammad Ajaib (P. W. 10) in addition to the Investigating Officer. Similarly, blood-stained toka (Exh. P. 15) was recovered from Muhammad Khan appellant which was taken into possession vide memo. Exh. P. L. Attested by the same set of witnesses. Admittedly, there is no other piece of evidence available on the record which could be treated as corroboration against the appellants. In this background, the only question which falls for determination is whether the prosecution has established the said recoveries satisfactorily or not. As mentioned above, the trial Court has believed these recoveries.
The occurrence in this case took place on 23-9-1974. According to the prosecution, Shahwali and Fetch Khan (acquitted co-accused) were arrested by the police on 23-9-1974, while the present appellants were taken into custody on 29-9-1974. However, according to the defence the appellants were also arrested on 23-9-1974 along with the acquitted co-accused and were in the lock-up on 25-9-1974. Reliance in this behalf is placed upon the following admission made in cross-examination by S. H.
0. Abdul Majid Kayani (P. W. 2)
"On 25th I interrogated the accused who were in the police lock-up at the Police Station, but I do not remember whether at that time Nisar Ahmed A. S. I. Was also present or not. I cannot tell the reason why I did not go to the spot on 26th. All the four accused were in the lock-up, but I only interrogated Shahwali and Fateh Khan accused. Both these had taken the plea of complete innocence. The accused were in lock-up since 23rd. I had learnt tnat they had been arrested and already interrogated by Nisar Ahmad A. S. I." According to the learned State counsel, S. H.
0. Abdul Majid Kayani P. W. Made the above-mentioned concessional statement to favour the defence for certain ulterior motive. The learned defence counsel, however, denies this allegation and contends that in fact all the four accused persons were arrested together by the police on the same day, i,e, 23-9-1974. We are not expressing any positive opinion about the actual date cf arrest of the appellants as it is not so material for the determination of the main issue involved in the case, namely, recovery of tokas (Exhs. P. 14 and P. 15).
6. According to the prosecution, tokas (Exhs. P. 14 and P. 15) were recovered at the instance of the present appellants on 3-10-1974. It is an admitted fact that 3-10-1974 was the last day of remand of the appellants with the police. It was on 3-10.1974 that after securing the order of the Magistrate they were sent to the judicial lock-up. According to the prosecution, the recoveries of tokas were effected before the appellants were sent to the judicial lock-up, while on the other hand, it is contended by the learned defence counsel that the said recoveries were planted upon the appellants by the police after they were sent to the judicial lock-up. In this controversy the time of these recoveries and of sending the appellants to the judicial lock-up is very material. We have, therefore, to find out from the record the time of the recoveries of these tokas and the time of sending the appellants to the judicial lock-up. No time of these recoveries is mentioned in the Recovery Memos. Exhs. P. K. And P. L. As mentioned above, in support of these recoveries the prosecution has produced only two witnesses, namely, Muhammad Ajaib (P. W. 10) and Investigating Officer Nisar Ahmad A. S. I. Muhammad Ajaib P. W. Has stated as under t "I joined the police at about 12 noon and was off after recoveries at 1 p.m. After attesting the recovery memos. I left the police at the place of recovery."
' Thus, according to this witness, the recoveries may have been effected between 12 noon and 1 p.m. The Investigating Officer A. S. I. Nisar Ahmad P. W. Has stated as under "The recovery at the spot started at about 10-45 a.m. And was finished by about 12 noon. Ajaib was released by me by about 12 noon or a few minutes before that The recoveries from the spot were made at about 10-30 or 11 a.m. As regards the time when these appellants were taken out from the Police Station and then sent to the judicial lock-up on 3.10-1974, A. S. I. Malik Muhammad Nazir (P. W. 1) has stated as under.
"They (Muhammad Hafeez and Muhammad Khan) were sent out along with Muhammad Nisar A. S. I. On 3rd October 1974 at 8.15 a.m. And the A. S. I. Returned at 3-05 p.m. After delivering them at the judicial lock-up. I have seen the Roznamcha of the judicial lock-up, Chakwal and according to report No, 5, dated 3rd October 1974 of the lock-up, Muhammad Asgbar F. C. No, 403 brought Muhammad Khan and Hafeez Khan accused from the Court of A. C., Chakwal to the lock-up and they were sent to the lock-up at 9-30 a.m."
A. S. I. Nisar Ahmed (P. W. 12) has stated as under : "According to the Roznamcha of P. S. These accused were taken out of the Thana lock-up at 8-15 a.m and started for the recoveries at 9-00 a.m. On the 3rd. When they made the disclosure the statement of the accused was recorded. That statement was not produced before the C. M. I had not stated to the C. M. That we reached the place of recovery at 8 or 8-30 a.m. (Confronted so recorded)."
To a Court question A. S. I. Nisar Ahmad P. W. Stated as under "I had produced Muhammad Khan and Hafeez accused before R. M., Chakwal in Court on 3-10-1974 between 12-30 and 1 p m I would deny the possibility that I produced Muhammad Khan and Hafeez accused in the Court of A. C. Chakwal, on 3rd October 1974 and delivered them in the judicial lock-up at Chakwal on the same day at 9-30 a.m."
' In cross-examination, this witness stated as under : "I have today learnt that Hafeez and Muhammad Khan accused are entered in judicial lock-up Roznamcha as having been sent there at 9.30 a.m."
7. In the presence of the above-mentioned documentary as well as oral evidence it is vehemently contended by the learned defence counsel that the present appellants were sent to the judicial lock-up at 9-30 a.m. On 3-10-1974 after taking their judicial remand from the Resident Magistrate, Chakwal. According to the defence, the alleged recoveries of tokas (Exhs. P. 14 and P. 15) were planted later on at about 12 noon or so on 3-10-1974. The onus was upon the prosecution to prove the said recoveries against the appellants beyond any doubt. It is not denied even by the State Counsel that doubt of serious nature exists regarding the exact time of recoveries of these rokas as well as the time of sending the appellants to the judicial lock-up. The learned Sessions Judge has been erroneously influenced that in the ordinary course such an entry should not have been known to the accused. However, we find that the accused would know the time when they were sent to the judicial lock-up Time of sending them to the judicial lock-up could not remain secret from them. In fact, they are the persons who were supposed to know the exact time of such happenings. The State Counsel has not been able to explain the observation of the trial Court that the entry in the judicial lock-up Roznamcha bad been got manoeuvred by the accused. In the circumstances mentioned above, the possibility of the defence suggestion being probable cannot be excluded. In any case, the onus being upon the prosecution, it has failed to discharge the same satisfactorily.
8. Another circumstance which is fatal for prosecution and has been completely ignored by the trial Court is the delay in sending the parcels of tokas of Muhammad Hafeez and Muhammad Khan appellants to the Chemical Examiner. As mentioned above, the recoveries of these tokas were made on 3-10-1974. According to A. S. I. Nisar Ahmad P. W. These parcels were delivered to the Mubarrir of the Police Station on the same day Le. 3-10-1974 for safe custody in the Malkhana.
According to the report of the Chemical Examiner (Exh. P. S.) these parcels of tokas were despatched by the police vide Memo. No, 30246 dated 4.11-1974 and the same were received by the Chemical Examiner at Lahore on 15-11-1974. There is no explanation whatever for this inordinate delay of 41 days in despatching the parcels of these tokas by the police to the Chemical Examiner.
In these circumstances such colossal and unexplained delay casts serious doubts about the genuineness of these recoveries. Reliance in this behalf can be placed upon Ghaus Muhammad's case (1). As indicated above, 3-10-1974 was the last day of custody of the accused with the police.
On the same day, they were sent to the judicial lockup under the orders of the Magistrate.
According to the prosecution, the appellants were arrested on 29-9-1974. The Investigating Officer has not offered any explanation why he could not effect these recoveries earlier either on the day of their arrest or before the expiry of the police remand. The recovery of these tokas on the last day of the remand in the above circumstances is an additional circumstance indicating its doubtful nature. The learned State Counsel has not been able to explain these defects in these recoveries and points out that the prosecuting Agency has deliberately spoiled the prosecution case for certain ulterrior motive.
9. In the above circumstances, we entertain serious doubts about th genuineness of the recoveries of these tokas. Accordingly, we attach n importance to these recoveries and keep the same out of consideration. The result is that there is no independent material available on the record which could serve as independent corroboration to support the ocular testimony of Ghulam Hussain and Lal Khan eye-witnesses who are not only related to the deceased, but also inimical towards the accused party. In this view of the matter, the case of the present appellants also stands at par with that of the acquitted co-accused Shahwali and Fateh Khan.
10. For the foregoing reasons, we accept this appeal, set aside the convictions and sentences of Muhammad Hafeez and Muhammad Khan appellants and acquit them. They shall be set at liberty forthwith if not required in connection with any other case.
(1) 1971 P Cr. L J 1098