MUHAMMAD FARRUKH MAHMUD, J.---Nizam son of Ladha, Abdul Ghafoor son of Ali Bakhsh, Ghualm Mustafa son of Muhammad Ali, Abdul Rehman's son of Ghulam Rasool and Makhdoom Kabir Shah were sent up to face trial for causing murder of Jam Qabil, father of the petitioner/complainant, in case F.I.R. No.245 of 1989, registered at Police Station Abadpur, District Rahim Yar Khan, on 22-12-1989, for offences under section 302/34, P.P.C.
2. Vide judgment dated 13-2-1992, the learned Additional Sessions Judge, Rahim Yar Khan acquitted all the accused of the charge. Feeling aggrieved the complainant Jam Haleem, through this revision, challenged the impugned judgment.
3. After hearing the learned counsel for the petitioner at length this revision was dismissed qua Ghulam Mustafa and Abdul Rehman's, respondents Nos. 3 and 4, while notices were issued against Nizam and Abdul Ghafoor-respondents Nos. 1 and 2, as according to the evidence recorded by the learned trial Court they had led to the recovery of the blood-stained Soties P.1 and P.2, vide order dated 10-1-1993.
4. The law was set in motion by Jam Haleem P.W.1, on whose statement F.I.R. No.245, Exh.P.A. Was recorded at Police Station Abadpur, on 22-12-1989 at 9-15 p.m. By Muhammad Zafar Ullah, S.- I./S.H.O., P.W.8, for offences under section 302/34, P.P.C.
5. According to F.I.R., the complainant lived in Mouza Nabipur and he alongwith his brother cultivated the land belonging to their father. On 22-12-1989 at about 3-00 p.m., the complainant his father Jam Qabil and many people belonging to the complainant's family went to the house of Allah Dewaya Dashti in order to attend marriage ceremony. At about 4-45 p.m. Jam Qabil, father of the complainant, left for his house after attending the marriage ceremony. 10/15 minutes after the departure of Jam Qabil, the complainant alongwith Qalandar Bakhsh, Lal Bakhsh and Jam Audit P.W.4, who had also gone to attend the marriage started for their houses. Jam Qabil was two acres ahead of the complainant and the other P.Ws. At about 5-00 p.m. When Jam Qabil was near the mango trees belonging to Nizam-respondent/accused, Ghulam Mustafa, Hafiz Ghafoor (respondent), Nizam (respondent) and Abdul Rehman's armed with Soties confronted Jam Qabil and assaulted on him. Hafiz Ghafoor gave first blow on the left arm of Jam Qabil, who fell down thereafter all the four accused started inflicting injuries on the person of Jam Qabil with their Soties.
The complainant and the accompanying P.Ws. While raising Lalkara rushed towards the place of occurrence. However, the accused receded towards their houses alongwith their weapons. At that time the P.Ws. Were at the distance of one Kanal from the scene of occurrence. Jam Qabil, who was bleeding from his right arm and left thigh, was put on a cot and taken to his house, where he lost his life.
6. The motive as set down in the F.I.R. Was that 10/12 years prior to the occurrence, the complainant party had purchased three acres land belonging to Mai Allah Rakhi for Rs.10,000. The same land was got mutated in the name of Mst. Naseem Akhtar, were of Makhdoom Kabir Shah co-accused 5/6 years prior to the occurrence. It was further stated that Makhdoom Kabir Shah wanted that the complainant party should vacate the said land, therefore, the complainant resorted to Civil Court and got stay order and the civil suit in that regard was pending adjudication in the Civil Court. It is also mentioned in the F.I.R. That Ghulam Mustafa, who was Munshi of Makhdoom Kabir Shah and the other accused, who were relatives of Nizam, had done to death the father of the complainant at the instance of Makhdoom Kabir Shah with an intention that the complainant and his other family members would not pursue the case any further and would vacate the land.
'7. After registration of the case Muhammad Zafar Ullah, S.-I./S.H.O., P.W.8 reached the place of occurrence and collected the blood-stained earth vide memo. Exh.P.D. Prepared by him and attested by Jam Audit P. W .4.
8. Nizam and Abdul Ghafoor-- respondents were arrested on 5-1-1990, while in custody of the police they led to the recovery of blood-stained Soties P.1 and P.2, which were taken into possession vide memo. Exhs.P.E. And P.F. Prepared by Muhammad Zafar Ullah, S.-I./S.H.O. P.W.8 and attested by Jam Audit P.W.4. The reports of Chemical Examiner Exh.P.K. And that of Serologist Exh.P.M. Relating to the aforementioned Soties were in positive.
9. During trial the prosecution produced nine witnesses to support its case. P.W.1 Jam Haleem son of the deceased and Jam Audit, P.W.4, cousin of the deceased, furnished the ocular account. They also stated about the motive. Jam Audit P.W.4 also stated about the recoveries. Dr. Riaz Hussain appeared as P.W.2 and placed on record the post-mortem report Exh.P.B. He stated about the post-mortem examination of the deceased Jam Qabil. Muhammad Zafar Ullah, S.-I./S.H.O., P.W.8 stated about the registration of the case, recoveries and the investigation. The rest of the witnesses were formal in nature.
10. The respondents in their statements recorded under section 342, Cr.P.C. Stated that they were innocent; that the occurrence was not witnessed by any one and that the P.Ws. Had stated against them being inimical on the basis of suspicion alone. The respondents did not appear as witness in their defence as contemplated by section 340(2), Cr.P.C. However, D.W.1 Malik Tousif Ahmed, Advocate (Oath Commissioner) and D.W.2 Faiz Ahmad (Stamp Vendor) have stated about the affidavit Exh.D.A. Executed by Jam Audit P.W.4, wherein he had exonerated Makhdoom Kabir Shah, Ghulam Mustafa and Abdul Rehman's co-accused.
11. The learned counsel for the petitioner has argued that it was a day light occurrence; that the F.I.R.
Was promptly lodged; that the respondents were named with their roles in the F.I.R.; that they were previously known to the P.Ws., therefore, it was not a case of non-identification of the accused. He has further argued that P.W.1 and P. W.4 supported the prosecution case and their statements were corroborated by the recovery of blood-stained Soties from the respondents; and that the prosecution case was also supported by the medical evidence.
12. Conversely, the learned counsel for the respondents has argued that the P.Ws. Have been disbelieved qua the acquitted co---accused including Ghulam Mustafa and Abdul Rehman's, who had allegedly caused injuries on the person of Jam Qabil-deceased; and that no independent, strong and corroboratory evidence was available on record to distinguish the case of the respondents from the other accused. He has further argued that the recovery of blood-stained Soties could not be relied upon as the Doctor had clearly stated that blood did not ooze out from the injuries.
13. The learned State Counsel has adopted the line of arguments of the learned counsel for the respondents and has supported the judgment passed by the learned trial Court.
14. We have heard the learned counsel for the parties at length and have scanned the whole record of the case. According to the prosecution case, Jam Qabil deceased and the P. Ws. 1 and 4, who are son and cousin of the deceased, had gone to the house of Allah Dewaya Dashti at 3-00 p.m. Jam Qabil-- deceased left for his house at about 4-45 p.m. And 10/15 minutes after his departure, the P.
Ws. Also left the house of Allah Dewaya. There is no plausible explanation/reason available on record as to why the P. Ws. Did not accompany their old father. In normal circumstances the deceased, his son P.W.1 and his cousin P. W.4 would beg leave from the host at the same time especially when the marriage ceremony was already over and according to evidence the deceased and the P. Ws. Had taken food together at the house of Allah Dewaya Dashti. The place of occurrence is at a distance of 10/15 acres from the residences of the deceased and the P.Ws., while it is at the distance of 6/7 acres from the house of Allah Dewaya Dashti. In these circumstances it was per chance that the P. Ws. Who had started 10/15 minutes after the departure of their father saw the occurrence. P.W.1 and P.W.4 were not believed by the learned trial Court and were also disbelieved qua the acquitted respondents by this, Court while admitting this petition against respondents Nizam and Abdul Ghafoor. Thus, the statements, of P. Ws. 1 and 4 are to be evaluated with great care and caution. P. Ws.1 and 4 had stated before the Police that the respondents had launched murderous assault upon the deceased at the behest of Makhdoom Kabir Shah with whom they had a dispute over a piece of land. P.W.1 after making his statement in accordance with F.I.R. Before the trial Court admitted in the cross-examination that Makhdoom Kabir Shah had no hand in the commission of murder of Jam Qabil and was innocent. This summersault was taken immediately after his examination-in-chief was recorded by the learned trial Court. P.W.4 Jam Audit simply skipped over his statement recorded under section 161, Cr.P.C. Relating to the motive and did not utter a word in his examination-in-chief.
15. P. W.1 admitted that he had sworn affidavit on 24-1-1990 but clarified that the affidavit was in favour of Makhdoom Kabir Shah co-accused only and he had not deposed about the itlnocence of Abdul Rehman's and Ghulam Mustafa accused. He went on to say that the names of Ghulam Mustafa and Abdul Rehman's were incorporated in the said affidavit without his consent and knowledge. He also admitted that similar affidavits were sworn by Lal Bakhsh, Qalandar Bakhsh and Jam Audit P.W.4. It is pertinent to note that according to F.I.R. All the four accused Nizam and Abdul Ghafoor-respondents as well as Ghulam Mustafa and Abdul Rehman's were assigned the role of inflicting injuries on the person of the deceased. Subsequently these witnesses exonerated two of the four assailants. P.W.4 was also confronted with the affidavit Exh. D.A. Executed by him, wherein it was stated that Makhdoom Akbar Shah, Ghulam Mustafa and Abdul Rehman's were roped in the case due to misunderstanding. We have examined Exh.P.D. Minutely. No manipulation has been made in this document and the relevant para.2 has been written in the same flow and with the same ink. The execution of the affidavits is not denied by the P. Ws. And the stance taken by them that they had not mentioned the names of Ghulam Mustafa and Abdul Rehman's in the affidavits is not borne out from the record of the case. The affidavits executed by the witnesses were available on the police record and during investigation Ghulam Mustafa and Abdul Rehman's co---accused were placed in column No.2 of the challan. In these circumstances, the credibility of these two witnesses has certainly become very doubtful, as if the said witnesses had lied about the three accused then it could not be said with certainty that they were telling truth about the respondents.
16. The distance between the place of occurrence and the police station is only 6 k.m. According to P.W.1 his father died at about 5-30 p.m. But the matter was reported to the police at 9-15 p.m. In these circumstances, it is inordinate delay because in normal circumstances the matter could be reported to the police station within 1 or 1-1/2 hours of the occurrence. When confronted with this situation, P.W.1 explained that after the death of his father he remained in his house for full one hour i.e. Till 6-30 p.m. And thereafter he reached police station on foot at about 9-15 p.m. He admitted that cycles and tractors were available in his Basti but according to him all the cycles and tractors were out of order on the evening of occurrence. Such an explanation can hardly be believed.
Assuming that this P.W. Left his house at about 6-30 p.m., in normal circumstances he would reach the police station maximum by 8-00 p.m. Even if he travels on foot or walks very leisurely. P.W.1 also admitted that he and Jam Audit P.W.4 alongwith other P.Ws. Lifted the deceased-Jam Qabil from the spot, placed him on a cot and at that time the blood was oozing out from the body of the deceased but at the same time he stated that his clothes or the clothes of any other P.W. Were not stained with blood. All these circumstances lead to a logical inference that at the time of occurrence these P. Ws. Were not present aria they reached the house after the occurrence. This inference finds further support, from the fact that undoubtedly the place of occurrence was well habitated area but none from the neighbourhood was cited as witness by the P.Ws.
17. No direct motive was set out against the respondents and according to the F.I.R. And the statement of P. W.1 before the trial Court, the deceased had enmity with Makhdoom Kabir Shah. The deceased had also filed a suit against Makhdoom Kabir Shah and it was Makhdgom Kabir Shah who wanted the deceased and his family members to vacate the land. According to P.W.1, the respondents had committed murder of Jam Qabil under the direction of Makhdoom Kabir Shah but during trial P.W.1 took summersault and stated that he had named Makhdoom Kabir Shah as accused due to some misunderstanding and he had no hand in the occurrence. This also lends support to the fact that the P.Ws. Were not present at the time of occurrence and after the death of Jam Qabil they reached the house and carved out a story after deliberation.
18. According to Dr. Riaz Hussain, who appeared as P.W.2, the deceased had received six injuries with blunt weapon. In cross---examination .He admitted that the death might have occurred at 7- 30 p.m. On 22-12-1989 or afterwards. He went to explain that the death could have occurred at 9-15 p.m. On 22-12-1989. He categorically stated that he did not notice bleeding from any of the injuries.
According to F.I.R. All the four accused, who were aimed with Soties, caused repeated injuries on the person of Jam Qabil deceased. In that case number of injuries on the person of Jam Qabil would be much more than six.
19. Now coming to the point of recovery. It has been noticed that the occurrence took place on 22- 12-1989 and according to P.W.8 Muhammad Zafar Ullah, S.-I./S.H.O. On 5-1-1990 Makhdoom Nasir Ali Shah, Councillor Nabipur produced the respondents at the police station. In these circumstances, it is not likely that the respondents would keep intact the weapons of offence with them for two weeks despite the fact that they were named as accused in the F.I.R. No independent witness was associated during recovery proceedings. Jam Audit P.W.4, who furnished the ocular account was also cited as a recovery witness. Such practice has been deprecated by .The superior Courts. The spirit of justice and law demands that the ocular account should be corroborated by independent source. It is also noticeable that according to Doctor he did not witness any bleeding, therefore, the recovery of blood--stained Soties, in the circumstances, becomes very doubtful and the trial Court has rightly not believed it.
20. The learned counsel for the petitioner has pointed out that the trial Court at page 21 of the judgment has mentioned the number of accused, who caused injuries, as six, therefore, the judgment has been recorded without proper application of mina and was perverse. Except for this, the learned counsel for the petitioner could not point out any misreading or non-reading of record on the part of the learned trial Court. As far as the above mentioned fact is concerned, it is apparent that the number of the accused has inadvertently been mentioned as six and has no bearing on the circumstances of the case.
21. The upshot of the whole discussion is that the prosecution has failed to prove its case against the respondents namely Nizam and Abdul Ghafoor beyond doubt. Resultantly we dismiss this revision.