' By our short order dated 16-11-1977, we had allowed the appeal and acquitted the appellant for reasons to be recorded later. Those reasons are as follows :-
2. Appellant Noor Mohammad, aged 29 years alongwith his brother Yasin aged 33 years was tried under section 302/34, P. P. C. For causing the murder of Nizam Din deceased in the night between 11 and 12 June, 1973 in Chak No, 25/1-AL, Police Station Renala Khurd, District Sahiwal. The co-accused was acquitted while the appellant was found guilty under section 302, P. P. C. And sentenced to death subject to confirmation by this Court and also to a fine of Rs, 2,000 in default, to suffer rigorous imprisonment for one year, by the learned Additional Sessions Judge-II, Sahiwal vide order dated 24-11-1975. The reference under section 374, Cr. P. C. Murder Reference No, 161/76. The convict has also filed an appeal being Criminal Appeal No, 20/76. Beth of these will be disposed of by this order.
3. The case of the prosecution in brief is that Mohammad Sharif, P. W. 9 and Ghulam Hussain, P. W.
10 were sleeping on charpais in front of their residential Ihata in the bazar. Towards the north few steps away, Nizam son of Bashir was sleeping on a cot on the Tharra in front of his grocery shop. It was moonlit night. On barking of a dog, the aforesaid witnesses got up and saw Noor and Yasin sons of Waryam residents of Chak No, 20 village Tibbi. Police Station Pattoki, District Lahore. Noor, who was living with his in-law's in Chak No, 25/1AL, armed with a hatchet and Yasin ith a lathi had reached near the cot of the deceased Nizam Din. In their view, Yasin inserted one end of his lathi in one side of the bed and brought it over the belly of Nizam Din and pressed the lathi on the other side. Noor gave two hatchet blows one after the other on the neck of Nizam Din. The witnesses ran to help the deceased but the accused ran away with their weapons towards the house of the in- laws of Noor threatening that whosoever would come near would be killed. When the witnesses reached near Nizam Din, they found au injury on the right side of the neck and he had died. The motive was that a month earlier from Sadiq son of Alawal a son-in-law of Shahbaz, brother of Noor, a cycle had been purchased by Nizam and Noor wanted the cycle to be returned but Nizam was not willing. An evening before, in the presence of Mohammad Ashraf, P. W. 8 and Mansha (given up witness), Noor had talked about the return of the cycle but Nizam refused. There was exchange of abuses and Noor went away saying to Nizam that he (Noor) would not leave him (Nizam) alive by next morning.
4. Mohammad Sharif, P. W. 9 went to the Police Station, Renala Khurd at a distance of 11 miles and lodged the F. I. R. Exh. P. C. At 5-00 a. m. On 12-6-1973 It was recorded by Mohammad Ishaq, S. I., P.
W.
13. The later reached the spot at about 8-00 a. m. And secured blood-stained earth from the place of occurrence vide memo. Exh. P. A and made it into a sealed parcel. He prepared injury statement Exh. P. G. And inquest report vide Exh. P. H. Of Nizam deceased and handed over the dead body to Mirbaz Khan, Foot Constable for post-mortem examination. He also secured blood-stained cot P. 1 and-blood stained Pillow P. 2 vide memo. Exh. P. B., inspected the spot and got prepared site plan Exh. P. M. And Exh. P M/1 from Fazal Ahmad Draftsmen, P. W.
4. The post-mortem examination of the deceased Nizam was conducted by Dr. Mohammad Ashraf at 6-00 p. m. The same day i. e. 12-6-1973 vide report Exh. P. F. The Doctor having left for Libya was not produced but his signatures were verified by Mr. Abdul Rashid Siddiqi, Dispenser of the Hospital, who appeared as P. W.
3. According to the report, Nizam deceased had suffered the following injury :- "(1) An incised wound 5/3 x 2 x 2/1 on the right upper part of neck and adjoining part of face. Lower jaw carotid vessels and third cervical vertebra and spinal cord were completely cut underneath the wound also communicates with the oral cavity freely." Death in his opinion occurred "due to shock and haemorrhage and as a result of complete cutting of the spinal cord as a result of injury mentioned above. This injury in the ordinary course of nature was sufficient to cause death.
Duration between the injury and death within a few minutes and between death and post-mortem 15 to 20 hours approx."
' Pirzada Shah Mahmood, S. I. S. H.
0. Police Station Renala Khurd, P. W. 12 arrested the accused appellant Noor on 18-6-1973. The appellant is said to have led to the recovery of hatchet P. 3 from a sarkunda bush which was secured vide memo. Exh. P. D. The blood stained-earth and the hatchet were found to be stained with human blood by the Serologist vide report Exh. P. K. The Investigating Officer, Mohammad Ishaq, S. I. P. W. 13 submitted the challan to the Prosecution Branch which was returned with some objection. Thereafter, he enquired from the Doctor vide application Exh. PF/4 dated 8-10-1973 as to whether a single wound could come about, if with one weapon two injuries were caused at one place. The reply of the Doctor of the same date is that, "it is possible" vide Exh. P. F/3. At the trial, the prosecution produced Mohammad Ashraf, P. W. 8 as a witness of the motive, Mohammad Sharif, P.
W. 9 and Ghulam Hussain, P. W. 10, as eye-witnesses Mohammad Amin, P. W. 6 and Sher Mohammad, P. W. 11 as attesting witnesses of the blood-stained earth and hatchet respectively and other formal witnesses and the reports mentioned above. The accused pleaded not guilty and stated that "we have a long-standing enmity with Ghulam Hussain and Mohammad Sharif, P. Ws.
Who have implicated me and my brother falsely in this case. We are residents of Wan Radha Ram which is six miles away from the spot". The learned Additional Sessions Judge-II, Sahiwal acquitted Yasin but convicted Noor and sentenced the later as stated above.
5. Learned counsel for the appellant Noor has contended that Mohammad Sharif, P. W. 9 and Ghulam Hussain, P. W. 10, the two eye-witnesses, are interested being related inter se and to the deceased. They are cousins and the sister of the former is married to the later. The deceased was a son of Bashir, real brother of the above mentioned Mohammad Sharif, P. W.
9. He has also referred to the evidence on the record as regards the enmity of the witnesses with whom the appellant had previous litigation under sections 307 and 382, P. P. C. He has, then, contended that it was a midnight occurrence and the eye-witnesses could not have identified the accused persons, especially when it is in the evidence of Ghulam Hussain, P. W. 10 that "the accused had turbans on their heads and had put the turbans on their faces. Only the nose, eyes and half of their foreheads were visible The cot of the deceased was towards the East of the Beni tree some of which was covered by the branches of the tree. The cot was two/three karams from the trunk of the tree". It is submitted that when the accused had muffled faces and the cot of the deceased was lying covered by branches of the tree thus being under shadow, it would hardly be possible for the witnesses sleeping at a distance of 10/12 karams to identify the accused. He has, further, pointed out that it has been admitted by the eye-witnesses that the father-in-law of the appellant to whose house the accused are said to have gone after the occurrence had left the village some 8/9 years ago and the accused themselves were not the residents of Chak where the occurrence had taken place but of another Chak No, 20/1AL which is about five/six miles away from the spot. Learned counsel also contended that the case of the prosecution is that the appellant had given two blows to the deceased one after the other but the post-mortem report belies the story because there is only one injury on the deceased. Learned counsel has, then contended that the recovery of the hatchet P. 3 has been effected after six days of the arrest of the appellant and from an open place accessible to public and the only attesting witness P. W. 11 Sher Mohammad is interested being related to the deceased. Finally, he has submitted that motive is far-fetched and the only witness P. W. 8 Mohammad Ashraf is interested.
6. Learned counsel for the State has submitted that the facts that the eyewitnesses are related inter se and to the deceased and that there is evidence of enmity against the appellant is no ground to discard their testimony because they are the natural witnesses of the occurrence and their testimony is corroborated by the recoveries and the medical evidence. He has pointed out that on a quei y from the Investigating Officer, the Doctor had said vide Exh. P. F/3 that one injury could be caused if two blows were given at the same place by a weapon of offence. However, he has admitted that the question put to the Doctor was general and the Doctor's opinion also amounts to a general remark.
7. After hearing the learned counsel for the parties and perusing the record with their assistance, we find that the two eye-witnesses, Mohammad Sharif, P. W. 9 and Ghulam Hussain, P. W. 10 are closely related inter se and to the deceased. They are first cousins and the sister of Mohammad Sharif, P. W. 9 is married to Ghulam Hussain, P. W.
10. The deceased is a son of the real brother of Mohammad Sharif, P. W.
9. As regards enmity with the appellant, Mohammad Sharif, P. W. 9 had although denied in cross- examination that Waryam father of the accused had lodged a case against him under section 307, P. P. C. At the Police Station about 10/12 years prior to the occurrence or had lodged complaint under section 307, P. P. C. Against him and that he did say so before the Committing Magistrate, but he was duly confronted with his previous statement where he had said so before the Committing Magistrate. However, he admitted that his "cousin had got registered a case against the accused under section 307, P. P. C.". . . . As regards dispute about the lease money between Ghulam Hussain, P. W. 10 and the appellant, he admitted that the later's father Ghulam owned land in their Chak which he gave on lease but denied that Ghulam Hussain, P. W. Had taken the land on lease from Ghulam for Ks. 1,700 and that there was a. Dispute about that land and the lease was cancelled or that there was aPanchayat in this behalf, though he had said so before the Committing Magistrate, and, he was duly confronted with his previous statement. He however,- admitted that "it is correct to suggest that there was a case under section 382, P. P. C. Against No or Mohammad etc. In respect of the said money. I, my son Zulfiqar, my mother-in-law Mst. Sardaran and Ghulam Hussain, P. W. Are P. Ws. In the said case. It is correct that the said case was pending and was fixed in the Court on the day I appeared as a P. W. Before the Committing Magistrate. The said case was lodged by Ghulam Hussain, P. W. Against Noor accused and others. It is correct that money has not been paid to Ghulam Hussain P. W. Upto date in spite of the registration of the case". Ghulam Hussain, P. W. 10 stated that "I had got the land of the father-in-law of Noor accused on lease for Rs, 1,700 and the lease money was paid to the mother-in-law of Noor accused. It is correct to suggest that there a dispute between me and Noor accused for the return of Rs, 1,700 during the days of occurrence. Noor accused was responsible for the non-return of the lease money. It is correct to suggest that the land was not later on given on lease to me because of Noor accused and for that reason I demanded the return of lease money which was paid by me in advance. I had got registered a case 12 days prior to the occurrence against Noor accused, because the buffalo which they had given to me in lieu of the money was forcibly taken away by them". Thus the enmity of the two eye-witnesses stand established on the record as against the appellant. The facts that the two eye-witnesses are related inter se and to the deceased and are inimical towards the deceased are not disputed by the learned counsel for the State either.
8. The contention of the learned counsel for the State that the aforesaid facts cannot off set the testimony of the eye-witnesses because they were the natural witnesses and their evidence is corroborated by the recoveries and postmortem report may now be examined. The occurrence had taken place in the middle of the night, Ghulam Hussain, P. W. 10 had said that "the accused bad turbans on their heads and had put the turbans on their faces. Only the nose,- eyes and half of their foreheads were visible The cot of the deceased was towards the East of the Beri tree some of which was covered by the branches of the trees". Identification in such circumstances when the witnesses had just woken up and the accused after inflicting the injury would be likely to take to their heels would be pretty doubtful. The learned trial Court had observed on this aspect of the case that the witness "had deliberately tried to give concession to the accused in view of the fact that his sister Mst. Sakina is married to Nawab elder brother of the accused persons as stated by Sher Mohammad, P W. 11". Besides that the witness is also related to the .Deceased, the later being son of the brother of his own brother in law, P. W. 9 Mohammad Sharif, the comment of the learned trial Court would, if correct, make the witness a liar and a perjuror hardly worth credence.
Mohammad Sharif, P. W. 9 on his part has shown not much regard for truth either. He narrated facts relating to the criminal litigation between him and the father of the appellant and the appellant before the Commiting Magistrate but realixing their impact denied the same before the trial Court.
He was, however, duly confronted with his previous statement where he had given those facts. It is undeniable that the occurrence is mid-night. Witnesses were asleep before the arrival of the accused persons. The later would not like to be identifiable. They would hardly take any time to cause the injury and to take to their heeis straight on the street. It would be difficult indeed for the witnesses, in all the circumstances, to identify the accused from a distance of 23', per side plan Exh.
PM/1. The suggestion of the learned counsel for the State that the accused would have been identified from their voices as they had threatened the witnesses after the occurrence is not well founded as that is not the case of the prosecution from beginning to end. No independent witness has been produced by the prosecution even though "the place of occurrence in the midst of the village Abadi", per statement of the Draftsman Fazal Ahmad, P. W.
4. Then, after the occurrence, the witnesses deliberated as to what should be done. P. W. 10 Ghulam Hussain said that "I, Sharif P. W., Yousaf and Anwar kept sitting at the spot for an hour or 1 discussing as to what should be done." Mohammad Sharif P. W. 9 lodged the F. I. R. At the Police Station at a distance of 11 miles at 5-00 a. m. Time taken in deliberation would fit in with the recording of the F. I.
R. At the given distance.
9. Coming to the corroborative evidence, hatchet P. 3 was recovered after six days of the arrest of the appellant and from "an open place accessible to everybody", per the statement of the Investigating Officer, P. W. 12 Pirzada Shah Mohammad, S. I., S. H. O. It is obvious that the recovery has no evidentiary value.
10. The case of the prosecution has been that the accused appellant had given two hatchet blows one after the other. The Doctor who conducted the post-mortem examination was not produced as he had left for Libya. P. W. 3 Abdul Rashid Siddiqui, Dispenser, identified the signature of the Doctor on the post-mortem reports Exh. PF and subsequent opinion Exh. P. F.
3. The post-mortem report shows one incised wound on the deceased. Since the witnesses had said that the appellant had given two blows one after the other, opinion of the Doctor was sought vide application Exh. PF/4 by the Investigating Officer nearly after two months of the post-mortem examination as to whether one wound could be caused if two injuries were caused at one place with one weapon. The Doctor opined, Exh. PF/3, "it is possible". Besides that the question and reply amount to "general remarks" as admitted by the learned counsel for the State, the question had been put and answer given after nearly two months of the post-mortem examination. The opinion, in the circumstances, can have no scientific basis as regards the facts of the case in hand and is of no evidentiary value at all. Therefore, the fact that the postmortem report showed one incised wound would also reflect on the ocular testimony because the eye witnesses had consistently said that the appellant gave two hatchet blows one after the other. On receipt of the first blow on the neck, the injured would have naturally writhed and the second blow would not fall, in all probabilities, on exactly the same site. Therefore, it appears that the witnesses had not seen the infliction of the injury. Therefore, the contention of the learned counsel for the State that medical evidence supports the prosecution case is not quite correct. It is rather the other way round.
11. The motive as regards the return of the cycle and exchange of abuses between the appellant and the deceased is sought to be proved by the evidence of Mohammad Ashraf, P. W.
8. The witness is a nephew and son-in-law of the complainant, P. W.
9. He was at the shop of the deceased, in his own words, "per chance". The motive itself is tenuous and far-fetched. This by itself cannot furnish any ground for conviction.
12. Above analysis of the evidence would show that in all the circumstances of the case when the witnesses are related inter se and with the deceased, inimical towards the appellant, not very truthful, occurrence being mid-night and identification difficult, lodging of the F. I. R. After deliberation and consequential delay, recovery of weapon of offence after six days from an open place accessible to everybody and the injury on the deceased inconsistent with the ocular testimony, there is hardly any reliable evidence carryingA conviction. The same eye-witness account has not been believed against th co-accused of the appellant by the learned trial Court.
The extra evidence o recovery etc. Is neither sufficient nor reliable as shown above against the appellant. Therefore, like the co-accused, the appellant is also entitled to the benefit of doubt. He is, accordingly, acquitted. He shall be released forth-1 with, if not wanted in any other case. Fine if already realized shall be refunded. Thus the appeal succeeds and the reference is rejected. This disposes of the two tittled matters. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.