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Criminal Appeal No. 870 of 1971, decided on 29th September, 1979.

--‑‑S. 417 read with Penal Code (XLV of 1860), S. 302‑(Murder)=‑ Appeal against acquittal‑Evidence, appreciation of: Ocular evidence not confidence‑inspiring and emanating from witnesses either interested or partisan‑Evidence of recovery of weapons of offence not reliable nor evidence of motive unimpeachable‑‑Medical evidence alone, held, of no significance, in circumstances‑Appeal against acquittal dismissed.‑[Appeal against acquittal‑Evidence].

Aslam Ghohar for A.‑G. for the State.

Malik Mohammad Jafar and Ch. Khalid Mahmood for Respondents.

Dates of hearing : 26th and 29th September, 197J.

Abdul Majid (31), Abdul Jalil (28) Khan Bahadur (50) sons of Roshan Din, their cousin Noor Muhammad (50) and Abdul Khanan (17). were tried by the Sessions Judge, Campbellpur under section 302/148/149, P. P. C. for causing murder of Shamroz son of Mohammad Ghaus. The learned trial Judge acquitted all of them vide his judgment dated 10th June 1971. The State had challenged the order of their acquittal by means of this appeal.

2. The facts of the prosecution case, as narrated by Qazi Abdul Rauf (P. W. 8), uncle of the deceased, in his statement (Exh. P. B.) recorded by Malik Ashiq Hussain S. 1. (P.W. 11) in the Hospital on l5th September, 1970, are as follows :‑

On 14th September, 1970, after evening prayer time, Abdur Rauf was returning to his house from the Bazar by making purchases of certain articles. When he reached near the baithak of Qazi Riaz, he saw his nephew Shamroz coming from the opposite direction. When Shamroz came near him, the accused Khan Bahadur armed with Toka, Abdul Majid and Jalil with knives, Noor Muhammad with Chhuri and Abdul Khanan with shovel, emerged out of the baithek, and attacked him with their respective weapons. Abdul Majid opened the attack. He inflicted an injury on the face of the deceased, followed by a knife blow by Abdul Jalil on his chest. Khan Bahadur gave a toka blow on the head. Shamroz Khan fell down. Thereafter all the accused caused more injuries on different parts of his body. The occurrence was witnessed by Khan Muhammad and Sher Khan, who rescued Shamroz Khan from the assai lants.

The motive was that Shamroz Khan had developed illicit relations with the niece of Abdul Majid accused.

3. The injured was taken to the hospital in semi‑conscious condi tion, but he was not fit to make statement. It was there that the Sub -Inspector recorded the statement (Exh. P. B.) of Abdur Rauf P. W., on the basis of which formal F. I. R. (Exh. P. B./1) was drawn up under section 307/148/149, P. P. C. on 15th September, 1970, at Police Station Sadar, Campbellpur.

4. The injured expired on 15th September, 1970 at 3‑00 a. m. in the DHQ Hospital, Campbellpur. The doctor sent a ruqqa (Exh. P. M.) and on its receipt the Police Officer again visited the hospital He prepared injury statement (Exh. P. Q.) and inquest report (Exh. P. R.). The dead body was sent to the mortuary for post‑mortem examination. The offence against the accused was converted into section 302, P. P. C.

Dr. Naeemullah conducted post‑mortem examination on 15th September 1970 at 11:00 a. m. He found 13 incised wounds on the dead body. Injury No. 1 was an incised wound, 1 " x " x " on the occipital region of the head, while injury No. 2 was another incised wound on the left parietal region and injury No. 3 was incised wound, scalp deep, situated parallel and 1" below injury No. 2.

Death according to the doctor, occurred due to shock and haemor rhage as a result of above‑mentioned three injuries. All the injuries were caused by sharp‑edged weapon and were declared ante‑mortem, collectively, sufficient to cause death in the ordinary course of nature.

5. The accused were arrested by the police officer on 15th September, 1970. Abdul Majid got recovered knife P. 1 vide memo. Exh. P. H. The investigating officer also got removed from the person of Abdul Majid, blood‑stained Shalwar vide memo. Exh. P. D. At the instance of Khan Bahadur blood‑stained toka P. 2 was recovered vide memo. Exb. P. E. Abdul Jalil produced knife P. 3 (not blood‑stained) vide memo. Exh. P. F. Noor Muhammad got recovered Chhuri P. 4 vide memo. Exh. P. G. Abdul Khanan produced shovel P. 6 vide memo. Exh. P. J.

According to report (Exh. P. S.) of the Chemical Examiner, shalwar, Chhuri and toka were stained with blood. The Serologist vide his report (Exh. P.J.) opined that it was of human origin.

6. The accused pleaded not guilty and said that they had been falsely implicated by Abdur Rauf, because they had complained against him of running a gambling den.

7. The prosecution case against the accused consisted of ocular account given by the complainant and Khan Bahadur P. W., motive, recoveries and the medical evidence.

The trial Judge disbelieved the ocular evidence of Abdur Rauf P. W because he was the uncle of the deceased and that he had contradicted Khan Bahadur on material points, whereas, Khan,Habadur was the tenant of the deceased and a chance witness. Furthermore, his statement was discrepant.

The evidence of recoveries was discarded as the learned Judge found contradictions between the statements of Ghulam Mustafa and the Investi gating Officer. Another reason for rejecting this piece of evidence was that Ghulam Mustafa had admitted that the accused had left the weapons of offence, at the place of occurence.

8. We have heard the learned counsel .for the parties. Learned counsel for the State argued that even if the evidence pertaining to recoveries was to be discarded, even then the prosecution has succeeded to prove its case against the accused beyond reasonable doubt with the help of the remaining evidence. For that matter we have examined the entire evidence.

It is true that the testimony of Abdur Rauf P. W. cannot be thrown out on the ground of his relationship with the deceased, if otherwise it inspired confidence. It is important to note that he deposed that all the accused attacked the deceased when they emerged out of the baithak of Qazi Riaz. He has also stated that after causing injuries to the deceased, they returned to the same baithak. Qazi Riaz, as such, was an important witness and was initially cited as an eye‑witness in the calendar of witnesses, but he was not examined. His non‑production, without explanation, would lead to presumption against the prosecution, that had tie been produced, he would not have supported the prosecution version or that he was won over and was dropped. Abdur Rauf is contradicted by Khan Bahadur P. W. The latter in his statement before the Committing Magistrate did not state that Abdur Rauf witnessed the occurrence.

Abdur Rauf had stated that he saw the occurrence while returning from the Bazar after making purchases of certain articles, but none of the shop‑keepers of the Bazar was produced to support his version. The deceased being nephew of the complainant, his statement would require close examination before acceptance against the accused. We‑ find that for corroboration, it did not find support from any other evidence of unimpeachable character.

Khan Bahadur P. W. being i tenant of the deceased had a soft corner for the deceased. He was a chance witness and had made certain improvements in his statement. He also contradicted Abdur Rauf P. W. He, stated that Khan Bahadur accused was not armed with Toka which according to him, was carried by Noor Muhammad accused, while Abdur Rauf stated that toka was carried by Khan Bahadur and not by Noor Muhammad.

The ocular evidence in this case thus does not inspire confidence. I emanates from witnesses who were either interested or‑partisan,

9. The evidence of recovery of weapons of offence was not reliable as according to Khan Bahadur P. W., the same were abandoned by the accused at the spot. Ghulam Mustafa P. W., who‑‑attested the recover memos., apart from contradicting the investigating officer, admitted that at the time of recovery, Lambardar and Member of Union Council were also present, but they were not cited as witnesses.

As regards the evidence of motive, in our view the mere uncorrobo rated statement of Abdul Rauf P. W. would not prove the motive, parti cularly, when he had been disbelieved by this Court. Similarly, after having discarded the ocular evidence, the medical evidence remains of n significance.

10. In the light of the above discussion, we are of the view that there is no merit in this appeal, which is accordingly dismissed. The accused are on bail. Their bail bonds shall stand cancelled.

Appeal dismissed.

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