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Criminal Appeal No. 569 of 1981, decided on 25th June, 1981.
-- Ss. 302/148/149 & 307-Witness - Eye-witnesses of occurrence brothers inter se-Relationship alone, held, not sufficient to treat them as interested witnesses.-[Witness].
-- S. 302/148/149 & 307-Witness-Corroboration-Hostility existing between parties prior to occurrence - Eye-witnesses sustaining injuries in occurrence nevertheless, their testimony, held, required independent corroboration from unimpeachable source to obviate conviction of innocent person.-[Witness).
Wasfullah v. Mirza Ali and others P L D 1963 S C 25 ref.
-- Ss. 302/148/149 & 307 - Evidence - Corroboration - Fact that medical evidence consistent with that of eye-witnesses. held, would not corroborate ocular evidence tainted by enmity.-[Evidence].
Machia and 2 others v. The State P L D 1976 S C 695 ref
-- S. 302-Motive, evidentiary value of - Motive, held, always a weak piece of evidence and could not furnish sufficient corrobora tion of ocular account.-[Motive].
Ghulam Haider v. The State 1980 S C M R 289 ref.
-- S. 302-Murder-Evidence, appreciation of - Independent wit nesses of occurrence and recovery given up as having been won over while evidence of interested witnesses lacking corroboration from independent source-Eight assailants allegedly armed with deadly weapons, including hatchets and balam, launching attack but only causing a simple incised wound on non-vital part of body of a witness-Recoveries of crime weapons dubious and unreliable--- Hostility existing between parties prior to occurrence Corroboration of tainted ocular testimony, held, could not be sought from medical evidence and evidence of motive, in circumstances-Convic tion and sentence set aside.
Muhammad Anwar Bhinder for Appellants.
M. Ashraf Khan for the State.
Dates of hearing;10th and 12th June, 1984.
Muhammad Arshad son of Muhammad Hussain, aged 25 years, Muhammad Akbar son of Muhammad Hussain, aged 21 years, Muhammad Mushtaq son of Rehmat Ali, aged 30 years. Muhammad Ilyas son of Ahmad Din, aged 22 years and Muhammad Shabbir alias Kalu son of Muhammad Rashid, aged 22 years, were tried alongwith Muhammad Azam alias Ejaz son of kehmat Ali, aged 20 years. Muhammad Iqbal alias Bala son of Allah Ditta, aged 23 years and Ahmad Din son of Ali Muhammad, aged 55 years, for offence under sec tions 148 & 302 and 307 read with section 149. P. P. C. for forming an unlawful assembly armed with deadly weapons and in prosecution of the common object thereof committing the murder of Liaqat Ali son of Muhammad Boota, aged 21/22 years and murderous assault on Sana Ullah P. W. 6, Muhammad Ashiq P. W. 8 and Riasat Ali by the learned Addi tional Sessions Judge. Gujranwala, who, vide his judgment dated 20th September, 1981 while acquitting Muhammad Azam alias Ejaz son of Rehmat Ali, Muhammad Iqbal alias Bala son of Allah Ditta and Ahmad Din son of Ali Muhammad on benefit of doubt, convicted all others under sections 148 & 302/149 and 307/149, P. P. C. They were sentenced each to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100 or in default to undergo rigorous imprisonment for 15 days under sec tion 148, P. P. C., life imprisonment and to pay a fine of Rs. 3,000 or in default to suffer rigorous imprisonment for 11 years under section 302/149, P. P. C. and to rigorous imprisonment for four years and to pay a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for a further period of nine months under section 307/149, P. P. C. It was directed that the sentence would run concurrently and that the fine, if realized would be paid to the heirs of the deceased as compensation.
2. Muhammad Arshad and Muhammad Akbar accused, who are brothers are collaterals of Muhammad Mushtaq and Muhammad Azam alias Ejaz accused. Muhammad Ilyas accused is the cousin of Muhammad Mushtaq and Muhammad Azam alias Ejaz accused. Ahmad Din accused is their uncle. Muhammad Iqbal accused is the cousin of Muhammad Arshad accused. Muhammad Shabbir accused also is a relative of Muhammad Mushtaq accused. On the other side, Liaqat Ali deceased was the brother of Sana Ullah P. W. 6, Muhammad Ashiq P. W. 8 and Riasat Ali who was given up at the trial. However, there is no relation ship between the parties inter se.
3. The occurrence took place on 7th July, 1979 at 8-00 a. m. in the fields of village Botala Sharam Singh at a distance of five miles from Police Station Saddar, Gujranwala. F. I. R. Exh. P. G. was recorded on the statement of Sana Ullah P. W. 6 on the same date at 12-45 p. m. by Inspector Muhammad Sadiq P. W. 10, the then Station House Officer, Police Station Saddar, Gujranwala, in the Civil Hospital, Gujranwala, where he reached on receipt of a telephonic message from there. On the basis of the F. I. R., a case under sections 148 & 302 and 324 read with sec tion 149, P. P. C. was registered at the Police Station on the same date at 1-15 p. m., vide formal F. I. R. Exh. P. G./1 recorded by Moharrir Head Constable Sharafat Hussain P. W. 4.
4. The parties had strained relations prior to the occurrence. On 6th September, 1977, a fight took place between Liaqat Ali deceased and Muhammad Ashiq P. W. 8 on the one side and Muhammad Ilyas and Ahmad Din accused and Rehmat Ali, father of Muhammad Mushtaq accused, on the other on a dispute over the turn of water. Members of both the parties sustained injuries in that occurrence. However, this incident was not reported to the police as the parties had compromised. On 8th June, 1979, i. e. about a month prior to the occurrence, Muhammad Arshad accused was assaulted and he lodged a report with the police under section 325/34, P. P. C. against Liaqat Ali deceased and one Gaman. Both of them were arrested. However, six or seven days before the occurrence, Liaqat Ali deceased was bailed out. The com plainant party approached the accused party to assure them that Liaqat Ali deceased was not involved in the occurrence but the accused party did not accept the plea of innocence of Liaqat Ali deceased and harboured a grudge saying that they would avenge the assault.
5. On 7th July, 1979 at 8-00 a. m., Liaqat Ali deceased and his brothers, namely, Sana Ullah P. W. 6, Muhammad Ashiq P. W. 8 and Riasat Ali P. W. (not produced) were present in their field ploughing it for paddy crop. All the appellants and their acquitted co-accused came there. Muhammad Arshad, Muhammad Akbar and Muhammad Shabbir alias Kalu appellants were armed with hatchets P. 1, P. 3 and P. 4, respectively. Muhammad Mushtaq appellant was carrying with him an iron bar. Muhammad Ilyas appellant and Muhammad Azam alias Ejaz, acquitted co-accused, were armed with dang P. 7 and sota P. 6, respectively. Muhammad lqbal, acquitted co-accused, was holding balam P. 2. Ahmad Din, acquitted co-accused, also was armed with an iron Khundi. They raising lalkaras encircled the deceased and his brothers, challenged them and attacked them with their respective weapons. The deceased and his three brothers fell in the field on receipt of injuries. Muhammad Arshad, Muhammad Iqbal, Muhammad Ilyas, Muhammad Mushtaq and Muhammad Akbar accused lifted Liaqat Ali deceased and Sana Ullah P. W. and carried them to a thoroughfare leading to village Dataywali. The remaining accused, namely, Muhammad Shabbir alias Kalu, Muhammad Azam alias Ejaz and Ahmad ' Din continued beating Muhammad Ashiq and Riasat Ali P. Ws. Afterwards, these three accused also came to the thoroughfare and all the eight accused gave blows to the deceased and Sana Ullah P. W. with their respective weapons. The occurrence was witnessed by Muhammad Tufail P. W. (not produced) and Barkat Ali P. W. 11., besides the injured P. Ws. After inflicting the injuries, the accused went away to their village. The deceased and the three injured eye-witnesses were carried on cots to the village where Liaqat Ali deceased succumbed to the injuries. The remaining three injured were taken in a trolley to the Civil Hospital, Gujranwala, where they were medically examined.
6. Inspector Muhammad Sadiq P. W. 10 investigated the case. He reached the spot on the same date at 4-00 p. m. He prepared injury state ment Exh. P. Q. and inquest report Exh. P. R. in respect of the dead body of Liaqat Ali deceased lying there and despatched the same to the mortuary for post-mortem examination. Since the field where the attack was initiated was under water, the Inspector could not collect blood stained earth from there. However, he took the same into possession from the thoroughfare, vide memo. Exh..P. S. On 13th July, 1.979, the Inspector arrested all the accused. On 18th July, 1979, Muhammad Arshad, Muhammad Iqbal, Muhammad Akbar and Muhammad Shabbir alias Kalu accused while in custody led to the recovery of blood-stained hatchet P. 1, balam P. 2, hatchet P. 3 and hatchet P. 4, respectively and the Inspector took them into possession, vide memoranda Exh. P. T., Exh. P. U., Exh. P. V. and Exh. P. X. and made them into separate sealed parcels. On 21st July, 1979 Muhammad Mushtaq, Muhammad Azam alias Ejaz and Muhammad Ilyas accused while in custody led to the recovery of blood-stained, iron rod P. 5, sota P. 6 and dang P. 7 and the Inspector took them into possession, vide memoranda Exh. P. Y., Exh. P. Z. and Exh. P. A. A., respectively and made them into separate sealed parcels. The above recovery memoranda were signed by Muhammad Maalik and Ghulam Rasool besides the Inspector. However, Ghulam Rasool and Muhammad Maalik were given up at the trial as having been won over. After completing the investigation, the Inspector challaned all the eight accused.
7. On 7th July, 1979 at 11-40 a. m., Dr. Harbans Lal, P. W. 2 medically examined Riasat Ali P. W. (not produced) and found the follow ing injuries on his person: -
(1) Contusion 16 c. m. x 8 c. m. on back of left leg upper part.
(2) Lacerated wound 1/4 c. m. x 1/4 c. m. x skin deep on outer side of left upper arm lower part.
(3) Lacerated wound 1 c. m. x J c. m. scalp deep on the back of head and midline.
(4) Lacerated wound 3 c. m. x 2 c. m. bone deep on the back of left forearm 6 c. m, above wrist.
(5) Swelling 8 c. m. x 5 c. m. on the back of left forearm lower part.
(6) Contusion mark 12 c. m. x 2 c. m. on back of right chest in middle.
(7) Contusion mark 20 c. m. x 2 c. m. on the back of chest middle part across the vertebral column.
(8) Contusion mark 6 c. m. x 2 c. m. on outer side of back of right chest.
(9) Contusion mark 7 c. m. x 4 c. m. on back of right leg upper part.
(10) Lacerated wound 1 c. m. x 1/2 c. m. x skin deep on the right leg inner side 9 c. m. above the ankle.
(11) Swelling 5 c. m. x 4 c. m. on outer side of right ankle.
8. All the injuries had been caused by blunt weapon and were fresh. All the injuries were declared as simple, except No. 4 which after X-ray examination was found as grievous. Exh. P. A./1 is the medico legal report.
9. The above Medical Officer on the same date at 11-45 a. m. medically examined Muhammad Ashiq P. W. 8 and found the following injuries on his person: -
(1) Contusion mark 8 c. m. x 2 c. m. on the back of right thigh lower part.
(2) Lacerated wound 1/4 c. m. x 1/2 c. m. bone deep on front of right leg lower part.
(3) Contusion mark 1 c. m. x 3 c. m. on back of left chest upper part.
(4) Contusion mark 30 c. m. x 21 c. m. on back of left chest situated vertically 2 c. m. on the vertebral column.
(5) Contusion mark 23 c. m. x 3 c. m. on back of right chest near the vertebral column and situated vertically.
(6) Contusion mark 17 c. m. x 12 c. m. on back of right chest lower part.
(7) Contusion mark 6 c. m. x 2 c. m. on back of left chest lower part.
10. All the injuries were fresh and had been caused with blunt weapon. All of them were declared as simple. Exh. P. B. is the medico legal report.
11. On the same date at 11-45 a. m., the above Medical Officer medically examined Sana Ullah P. W. 6 and found the following injuries on his person: --
(1) Contusion mark 8 c. m. x 2 c. m. on front of right thigh upper part.
(2) Contusion mark 15 c. m. x 9 c. m. on the outer side of right upper arm upper part.
(3) Contusion mark 14 c. m. x 6 c. m. on outer side of left upper arm upper part.
(4) Contusion mark 10 c. m. x 10 c. m. on front of right thigh lower part.
(5) Contusion mark 14 c. m. x 2 c. m. on front of right thigh upper part.
(6) Complaint in right hip.
(7) Contusion mark 17 c. m. x 6 c.m. on front of left thigh lower part.
(8) Contusion mark 10 c. m. x 4 c. m. on the outer side of left leg, upper part.
(9) Contusion mark 50 c. m. x 3 c. m. back of chest across the vertebral column.
(10) Contusion mark 10 c. m. x 2 c. m. on back of right chest upper part.
(11) Incised wound 2 c. m. x 1/2 c. m. skin deep on inner side of left ankle.
12. All the injuries had been caused by blunt weapon, except injury No. 11, which had been caused by a sharp weapon. All the injuries were declared as simple. Exh. P. C. is the medico-legal report.
13. Dr. Gulzar Ahmad P. W. 9 conducted autopsy on the dead body of the deceased in 8th July, 1979 at 1.15 p. m. and observed the following injuries: -
(1) Lacerated wound 3. c. m. x 1 c.m. x 1/2 c. m. at outer side of upper part of right arm.
(2) Lacerated wound 1 c. m. x 1/4 c. m. x 1/4 c. m. at back of lower of right upper arm.
(3) Lacerated wound 3 c. m. x 12 c. m. x muscle deep at right elbow joint.
(4) Lacerated wound 1 c. m. x 1/4 c. m. x 1/4 c. m. at outer side of the right buttocks.
(5) Contusion with swelling 5 c. m. x 2 c. m. at back of left elbow joint.
(6) Contusion 2 c. m. x 1 c. m. at outer side of left upper arm.
(7) Lacerated wound 2 c. m. x 1 J c. m. at back of thumb of right hand.
(8) Multiple contusions in area of 30 c. m. x 6 c. m. at back of left side of chest from above onward.
(9) Contusion 2 c. m. x 2 c. m. at right side of top of head.
(10) Contusion 5 c. m. x 2 c. m. at back of top of right shoulder joint.
(11) Contusion 8 c. m. x 4 c. m. on the back of right shoulder joint.
(12) Multiple contusions in the area of 12 c. m. x 2 c. m. at the back of right side of chest.
(13) Multiple contusions in the area of 9 c. m. x 4 c. m. at the back of lower part of right side of chest in. oblique direction.
(14) Multiple contusions in area of 8 c. m. x 2 c. m. at back of both sides of waist.
(15) Multiple contusions in area of 1 c. m. x 2 c. m. at back of right buttock.
(16) Multiple contusions 2 c. m. x 2 c. m. at outer 'side of right buttock.
(17) Contusion 6 c. m. x 2 c. m. at outer side of right thigh.
(18) Contusion 1 c. m. x 4 c. m. at back of left buttock.
(19) Contusion 6 c. m. x 3 c. m. at back of middle part of left thigh.
14. In the opinion of the Medical Officer, the death of the deceased occurred due to respiratory failure as a result of injuries to the left lung under injury No. 8 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and had been caused by blunt weapon. The probable interval between the injuries and the death was "soon after" and between the death and the post-mortem examination 30 hours. Exh. P. O. is the post-mortem examination report and Exh. P. O./1 is the diagram showing the locale of the injuries.
15. All the accused pleaded not guilty do the charge framed against them under sections 148, 302 and 307, read with section 149, P. P. C. When examined under section 342, Cr. P. C., they denied the prosecution case and the recoveries attributed to them. According to them, they had been falsely implicated in the case due to enmity. Their plea was that Liaqat Ali deceased had been betrothed to Mst. Maqsooda Begum. Sana Ullah P. W. also wanted to marry her. On this account, the deceased and his brothers had strained relations. In the Urs of Darbar Shah Hussain held in village Botala Sharam Singh, a. fight took place between Liaqat Ali deceased and one Azam on one side and Sana Ullah, Riasat and Ashiq P. Ws. on the other and it was in this fight That the deceased and the P. Ws. sustained injuries. However, none of the accused adduced any evidence in defence.
16. The learned trial Court invoked the conviction of the appellants on the testimony of Sana Ullah P. W. 6 and Muhammad Ashiq P. W. 8, who deposed to the occurrence and one of whom, namely, Sana Ullah testified to the motive also, the medical evidence provided by Dr. Harbans Lal P. W. 2 and Dr. Gulzar Ahmad P. W. 9 and the statement of Inspector Muhammad Sadiq P. W. 10, who effected the recoveries during the investigation of the case. The appellants have assailed the propriety of their conviction. I - have heard their learned counsel and perused the record.
17. Sana Ullah P. W. 6 stated that on the day of occurrence at 8-GO a.m., he and the deceased and Muhammad Ashiq P. W. were plough ing their land while Riasat -Ali P. W. (not produced) was preparing the banna. All the appellants and their acquitted co-accused came there. Muhammad Arshad, Muhammad Akbar and Muhammad Shabbir were armed with hatchets, Muhammad Mushtaq with an iron rod, Muhammad Ilyas with a Dang, Muhammad Azam alias Ejaz with a sota, Ahmad Din with an iron Khundi and Muhammad Iqbal with a Balam. The raised Lalkaras and asked them to stop ploughing, which they did. Then they attacked them and caused them injuries with their respective weapons. All of them fell down in the field. Muhammad Arshad, Muhammad Akbar and Muhammad Ilyas lifted him while Muhammad Iqbal and Muhammad Mushtaq lifted the deceased and they carried both of them to the Katcha road leading to village Dataywali. Muhammad Shabbir, Ahmad Din and Muhammad Azam alias Ejaz continued beating Ashiq and Riasat in the field. Subsequently, they three also joined the remaining assailants and all of them inflicted injuries on him and the deceased with their respective weapons. On the Katcha road, Muhammad Iqbal gave Balam blows on the left flank and right arm of the deceased. The others also caused injuries to the deceased with their Dangs, wrong sides of hatchets, iron rod and iron Khundi. All the assailants after satisfying themselves that he and the deceased had died went away to their village with the respective weapons. The occurrence was witnessed by Muhammad Tufail and Barkat Ali also. Muhammad Ashiq P. W. 8 also made a similar statement.
18. Out of the remaining eye-witnesses, Riasat Ali P. W. was given up as unnecessary, Muhammad Tufail was given up as having been won over and Barkat Ali was 'examined as P. W. 11, not as a witness of the occurrence but merely to testify to the fact that he had identified the dead body of the deceased at the time of the post-mortem examination although he too, according to him, is an uncle of the deceased. The two eye witnesses are the brothers of the deceased. This relationship alone, of course, is not sufficient to treat them as interested witnesses. However, Sana Ullah P. W. admitted in the cross-examination that since the fight which took place between the parties two years prior to the occurrence on a dispute over the turn of water, they were not on speaking terms with each other and an enmity had been created between them. He further said that they had sold the land in the village due to enmity with and out of fear of the accused. These facts indicate that hostility existed between the parties prior to the occurrence. Therefore, in spite of the fact that these two, eye-witnesses, also sustained injuries in the occurrence, their evidence required independent corroboration from unimpeachable source to obviate conviction of any innocent person. Such a course was approved in Wasiullah v. Mirza Ali and others (P L D 1963 S C 25) wherein it was held that when the main direct evidence be that of interested persons i. e. enemies of the person charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt. This is more so in this case because the only independent eye witness, namely, Muhammad Tufail was, given up as having been won over.
19. The prosecution sought corroboration from the recovery of weapons from the appellants. Inspector Muhammad Sadiq P. W. 10 deposed that he arrested the appellants on 13th July, 1979 and on 18th July, 1979 Muhammad Arshad, Muhammad Akbar and Muhammad Shabbir appellants while in custody led to the recovery of blood-stained hatchets P. 1, P. 3 and P. 4, respectively and on 21st July, 1979 Muhammad Mushtaq and Muhammad Ilyas appellants led to the recovery of blood stained iron rod P. 5 and Dang P. 7, respectively. He further stated that he effected the above recoveries in the presence of Muhammad Maalik and Ghulam Rasool. Both Muhammad Maalik and Ghulam Rasool were given up at the trial as having been won over. The credibility of the Inspector was badly skaken by his admission in cross-examination. He stated that after arresting all the appellants and their acquitted co-accused on 13th July, 1979 he obtained their remand for five days from 14th July, 1979 to 19th July, 1979 and on 19th July, 1979 he obtained their further remand till 23rd July, 1979 stating in the application that recoveries could not be effected from them. This fact falsified his statement that he had effected recovery of blood-slued hatchets on the pointation of Muhammad Arshad, Muhammad Akbar and Muhammad Shabbir appellants on 18th July, 1979. On the application moved by the Inspector on 19th July, 1979 for obtaining further remand of all the eight accused till 23rd July, 1979 the Ilaqa Magistrate recorded the following order: -
The above order further implied that the recoveries allegedly made by the police before and after 19th July, 1979 were dubious and unreliable. Besides, the report Exh. P. E. E. of the Serologist was to the effect that the origin of blood on two of the three hatchets recovered in this case could not be determined. All these circumstances undoubtedly show that the evidence of recoveries lacked intrinsic reliability.
20: As regards the medical evidence, the injuries found on the three injured eye-witnesses on their medical examination by Dr. Harbans Lal P. W. 2 and on the dead body at the time of autopsy conducted by Dr. Gulzar Ahmad P. W. 9 included only one by sharp weapon which was only skin deep on the inner side of left ankle of Sana Ullah P. W. 6. This injury was simple in nature. It appears quite intriguing and also improbable that eight assailants armed with deadly weapons including hatchets and Balam launched an attack but meticulously avoided to use sharp sides of their weapons except causing one simple incised wound on a non-vital- part. Sana Ullah P. W. said in his cross-examination that the accused gave him and his three brothers including the deceased reckless blows. In his examination-in-chief, he said that Muhammad lqbal, acquitted co-accused, gave blows with his Balam to the deceased on his left flank and right arm. He did not clarify that the accused had not used the sharp side of his Balam. Muhammad Ashiq P. W. 8 said in his cross-examination that after receipt of the injuries he and his three brothers had bled profusely. These statements are not consistent with the medical evidence. Even if the medical evidence had been consistent with that off the eye-witnesses, it could not corroborate ocular evidence which was tainted by enmity. In support of this view, reliance may be placed on Machia and 2 others v. The State (P L D 1976 S C 695) wherein it was observed as follows: -
"Even on the assumption that the medical evidence is consistent with that of the eye-witnesses, can medical evidence corroborate ocular evidence which is tainted by enmity Medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses have spoken the truth. This, however, would be in special circumstances."
21. So far as the evidence of motive is concerned, it too, being always a weak piece of evidence, as observed in Ghulam Haider v. The State (1980 S C M R 289), cannot possibly furnish sufficient corroboration of the ocular account.
22. For the foregoing reasons, the prosecution evidence bristles with doubts and it is incompatible with the safe administration of justice to convict even the appellants on the basis thereof. In the result, I accept this appeal, set aside the convictions and sentences of the appellants anti giving them the benefit of doubt acquit them. They are in jail. They shall be released forthwith, if not wanted in any other case.
S. G. D. Appeal allowed.
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