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Criminal Appeals Nos. 756 and 834 of 1968, decided on 14th December 1971.

S. 302/34--Evidence-Witness-Sole prosecution witness of occurrence making statement inconsistent with his earlier statement Public Prosecutor cross-examining witness but failing to improve case-Witness suppressing his meeting with deceased but disclosing same after some persuasion-Witness also having enmity with appellants-Evidence of such witness, held, replete with grave doubts and discarded.

Ch. Nazir Ahmad Khan with Ch. Eidzaz Hussain for Appellants.

Khan Mufti Nazar Mohammad for A.G. for the State.

Date of hearing : 14th December 1971.

The two appeals Criminal Appeals Nos. 756 and 834 of 1968 are addressed against the order of Mr. S. A. Rashid, learned Additional Sessions Judge, Rawalpindi. dated 7th September 1968, convicting Lahrasab, his brother Mohammad Ashraf, sons of Sardar Ali and one Adalat son of Mohammad Khan under section 302/34, P. P. C. with a sentence of transportation for life each for committing in furtherance of their common intention the murder of Mohammad Iqbal (deceased) on 24th September 1967, at digerwela in the area of Ratta Lambar Police Station Bara Khoha.

2. The prosecution case in brief eras that a year before tine present occurrence the goats of Mohammad Ashraf Appellant trespassed into the fields of Mohammad Iqbal (deceased) resulting in an altercation and exchange of abuses between them which annoyed his brother Lahrasab and their relative Adalat appellants who remained on a look out for an opportunity to take revenge from Mohammad Iqbal (deceased) about it. It visas alleged that on the day of the present occurrence some goats belonging to Mohammad Iqbal (deceased) had gone astray and in search of the same he went towards Ratta Lamber. On the way he came across Zar Mohammad (P. W 12) and enquired from him about his goats who told him that he had seen the three appellants going with their herd and his goats might have also denied it. Consequently, he went in that direction and meeting Mohammad Fayyaz (P. W. 15) on the way enquired from him out his goats who told him that the appellants had gone dawn with their herd towards the Sohan Nallah. On this formation Mohammad Iqbal (deceased) is said to have gone behind them and after a short while Mohammad Fayyaz P.W. heard an alarm and getting up on a higher level, saw the three appellants inflicting hatchet blows on the deceased. Muhammad Ashraf appellant and Adalat noticed Mohammad Fayyaz P. W. standing at that place and watching the incident they threatened him with the same fate if he disclosed it to one else.

On the next day Mohammad Azam (P. W. 13) a brother of wife of Mohammad Iqbal (deceased) went to see his sister found her worried. On his enquiry she told him that her husband Mohammad lqbal had gone for the search of the slats since the day before sod had not returned during the night. Mohammad Azam P. W. came back to his house and informed his elder brother Mohammad Nawaz (P. W. 14) and the two brothers then searched for the deceased at different aces making enquiries from the relatives about him, but, A not get any clue. On the next day, i.e., 26th September 1967 they went to Bagh Jogianwala and contacting Mohammad Fayyaz (P. W. 15) enquired from him about Mohammad Iqbal (deceased) who gave them the above information about this occurrence and also led them towards Sohan Nallah and after some search found the dead body of Mohammad Iqbal (deceased) submerged in sand and water near eastern bank of the nallah. Leaving his brother Mohammad Azam (P. W. 13) at the spot to guard the dead body Mohammad Nawaz (P. W. 14) went to Police Station Burn Khoha and lodged his report Exh. P. 6 with Bashir Ahmad, Sub-Inspector at 9-00 a.m. on that day. The Sub-Inspector after the formal registration of the case. accompanied him to the spot and reaching there at 1-30 p.m. took the dead body into his custody and despatched ,the same to the mortuary after the preparation of injury statement Exh. P. J. and the inquest report Exh. P. K. During the inspection .of the spot he took into possession blood-stained earth and made .it into a parcel vide Exh. P. A. He also recovered blood-stained stones (P. 1.) lying there and made them into a sealed parcel wide Exh. P. B. Blood-stained shirt (P. 2) and two pieces of blood-stained shalwar (P. 3 and P. 4) were also taken into possession from there and made into separate sealed parcels vide Exhs. P. C. and P. D. At a short distance from that place noticed two more blood-stained stones (P. 5 and P. 6) which were also seized and sealed into a parcel vide Exh. P. E. On 27th September 1967 Manzur Ahmed Constable (P. W. 2) produced before him, the blood-stained shalwar (P. 9), Chappels (P. 10) of the deceased and rope (P. 11) which he took into his possession vide Exh. P.L. On the same day he got prepared the site plan Exh. P. N. with its duplicates Exhs. P.N./1 and P. N./2 from Fazal Mohammad Patwari (P. W. 7) and putting his notes in red signed the same in token of its correctness.

The three appellants were not available as they had absconded after this occurrence. On 1st October 1967, he arrested Mohammad Ashraf and Lahrasab from Chah Sultan at Rawalpindi and in the course of the investigation while in. custody Mohammad Ashraf led to the recovery of hatchet (P. 7) from underneath a bush in Pharwala fort in the area of Bagh Jogianwala which was sealed into a parcel vide Exh. P. F. On the same day Lahrasab appellant got recovered hatchet (P. 8) -from under the bushes of the western bank of Sohan Nallah which was sealed into a parcel vide Exh. P. H. The Sub -Inspector deposited all the sealed parcels with the Moharrir who in due course despatched them to the Chemical Examiner and as a result of his analysis the earth, the stone, shirt, two pieces of shalwar, two other stones and hatchet (P. 7) of Mohammad Ashraf were found stained with blood while the hatchet (P. 8) recovered from Lahrasab had no such stains. His report is Exh. P. O. This blood was traced as that of human origin by the Serologist vide his report Exh. P. Q.

Adalat appellant remained at large for a long time and had been declared obsconder after the necessary proceedings under sections 87 and 88, Cr. P. C. against him so the; police submitted the challan against Mohammad Ashraf and Lahrasab appellant; who after the necessary enquiry were committed to Sessions for their trial on 20th June 1968. Adalat appellant was arrested in the meanwhile and separate enquiry was held against him resulting in his committal to Sessions by a separate order dated 26th June 1968. All the three appellants were, however, jointly, tried on a consolidated charge under section 302/34, P. P. C. resulting in their conviction as above.

3. On 27th September 1967, at 3-00 p.m., Dr. Rauf Beg Mirza (P. W. 1) hold autopsy on the dead body of Mohammad 'Iqbal (deceased) and found the following injuries vide Exh. P. M.:

(1) An incised wound 1" x " x bone deep on the top of middle of head.

(2) An incised wound 1 '' x '' x bone deep 1'' anterior to injury No. 1.

(3) An incised wound 2 '' x '' x bone deep on the middle of left eat and temporal region cutting the temporal bone and brain with its membrane.

(4) An incised wound 3 '' x '' x bone deep on the let angle of the lower jaw cutting the bone completely.

(5) An incised wound 4'' x 1'' x bone deep on the right side of the head 1'' above the right ear. The bone underneath was partially cut.

(6) An incised wound 11'' x 5'' x cavity deep on the abdomen 2'' above the umbilicus. Intestines were coming out from the wounds which beared multiple cuts.

(7) An incised wound 1 '' x 1/3'' x bone cut on the outer side of the heft index finger.

(8) An abrasion mark on the front of both the knees.

(9) An abrasion mark 3'' x 3'' on the back of both the elbows.

(10) An abrasion mark all over the back of chest.

In his opinion the death was due to shock and haemorrhage as a result of injuries Nos. 3 and 6 which were dangerous in nature and were caused by sharp-edged weapon and were sufficient to cause death in the ordinary course of nature:

4. In addition to the above medical evidence the prosecution had relied for its case on the testimony of Zar Muhammad (P. W. 12) about his having seen the three appellants going with a herd of goats towards Ratta Lamber followed a little later by Mohammad Iqbal (deceased) at his instance coupled with the eye-witness account of the occurrence given by Mohammad Fayyaz (P. W. 15) and the evidence of Mohammad Azam (P. W. 13) and Mohammed Nawaz (P. W. 14) about the information supplied to them by Mohammad Fayyaz (P. W. 15) while Said Akbar (P. W. 9) and Mohammad Afsar (P. W; 10) had deposed about the recovery of hatchet (P. 7) at the instance of Mohammad Ashraf appellant and Sher Zaman (P. W. 11), shout the production of hatchet (P. 8) by Lahrasab appellant.

5. The appellants lead, however, denied, all the allegations, made against them bar the above-named witnesses and pleaded false implication due to their enmity with them They, however led no evidence in defence.

6. The conclusion of the learned trial Judge has been assailed before me as erroneous and based on insufficient, and tainted evidence and on being taken through the record I am inclined to agree with these contentions of their learned counsel that the only eye-witness (Mohammed Fayyaz) of this occurrence; had let down the prosecution. His evidence was even otherwise. So inconsistent with hip own earlier statement that the learned Additional Public Prosecutor had to cross-examine him and request for its transfer under section 288, Cr. P. C. but it fat to improve the case as it also suffered from some other inherent infirmities, the most vital being his prolonged silence about it. He had tried to suppress it even after Mohammad Azam and Mohammad Nawaz P. Ws. had contacted him on the third day of the occurrence to enquire from him if he had seen the brother-in-law (Mohammed lqbal deceased) anywhere while grazing his goats. It was after some persuasion and assurance given by his father that he had made this disclosure to them. This conduct of the witness could not permit at all of any implicit confidence in his testimony especially when he was not favourably disposed to either of the three appellants which he had admitted even in his earlier statement. He had conceded in his statement before the Enquiry Magistrate that Mst. Zolekha, a sister-in-law of Adalat appellant had lodged a false report about the killing of her goat against his father and they had to pay Rs. 80.00 to her as compensation, that he had quarrelled and exchanged abuse with Mohammad Ashraf and Lahrasab appellant on account of cattle trespass. The civil litigation over a land dispute between his maternal uncle Mohammad Akbar an Gustasab a cousin of Mohammad Ashraf and Larhasab appellant which he bad denied in the transferred statement was admitted by him in Sessions Court along with so many other factors which clearly depicted him as a made-up witness. In his statement at the trial he had not only contradicted his own statement but that of Mohammad Azam and Mohammad Nawaz P. Ws. also and even the medical evidence as he had stated that his leg had been cut off which was factually incorrect. I, therefore, feel no hesitation in discarding his evidence as replete with grave doubts. With its elimination there was no other tangible Evidence to connect any of the appellants with this crime. Zar Mohammad P. W. was not named in the first information report. Muhammad Nawaz P. W. the informant bad not mentioned him even in his statement at the trial which was itself sufficient to exclude his statement from consideration although even otherwise it could be of no consequence for the prosecution case.

Mohammad Azam and Mohammad Nawaz P. Ws. admittedly had no personal knowledge about this murder. As regards the recoveries of the hatchet (P. 7 and P. 8) at the instance of Mohammad Ashraf and Lahrasab appellants respectively. The last mentioned was not even found stained with blood by the Chemical Examiner while there was no dependable evidence about the sealing of the hatchet (P. 7) at the time of the alleged recovery so it could be of no avail to the prosecution either, which must fail in these circumstances. I, therefore, accept these appeals and direct that the three appellants shall be set at liberty forthwith if not required by the police in any other case.

7. Mohammad Nawaz complainant had filed a petition for the enhancement of the sentence under section 439. Cr. P C. which has not been admitted as yet to a regular hearing and a: a result of then appeals it shall stand dismissed.

Appal accepted.

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