Find a Lawyer

Criminal Appeal No. 221 of 1982, heard on 3rd April 1984.

---S.302/34--Interested witnesses--Corroboration--Deep-rooted enmity existing between parties over previous murders--Eye-witnesses interested and inimical towards accused--Accused having motive to kill deceased while complainant party having a motive for false involvement of accused--Prosecution seeking corroboration from alleged recovery of weapons at instance of accused but same having not been sent to Forensic Science Laboratory for comparison, rendering no help to prosecution--Failure of Investigating Officer to send weapons to Forensic Science Laboratory creating adverse presumption against prosecution- Evidence of recoveries inspiring no confidence and furnishing no corroboration to testimonies of eye-witnesses--Dead body of deceased not despatched to mortuary immediately after arrival of Investigating Officer at place of occurrence and no explanation given therefore- Short-comings existing in prosecution case and guilt of accused not proved beyond reasonable doubt--Conviction and sentence set aside in circumstances.

---S.304/34--Witnesses--Corroboration--Interested, 'inimical and chance witnesses--Independent corroboration required In absence of such corroboration, reliance, held, could not be placed on their statements.- [Witness].

---S.304/34--Circumstantial evidence--Unexplained delay in despatch of dead body to mortuary, held, would have adverse effect on credibility of prosecution version.

Zafarullah Cheema for Appellants.

Muhammad Rafi Siddiqui for the State.

Dates of hearing: 2nd and 3rd April, 1984.

Dosa 40, Riaz, 30 and Nausher 35, residents of Chak No. 190.13. , Tehsil and District Faisalabad, were tried by a learned Additional Sessions Judge, Faisalabad, under section 302/34. P.P.C., for causing the murder of one Muhammad Siddique 70, son of Chawa, their co-villager, on 20-1-1979 at 7-00 a.m. in the area of Chak No. 21/J.B., Ranike, at a distance of ten miles from the Police Station Chak Jhumra

2. The learned trial Judge, vide his judgment dated 24-3-1982, convicted the aforesaid accused under section 302/34, P.P.C. and sentenced each of them to imprisonment for life and fine of Rs.1,000 or in default two years' R.1. It was directed that the fine, if realised would be paid to the legal heirs of the deceased as compensation.

3. The convicts have challenged their conviction and sentences through the present appeal.

4. F.I.R. account of the prosecution version is, that on 20-1-1979, Muhammad Siddique deceased accompanied by Ahmad complainant (since murdered), his daughter Mst. Asmat Bibi, P.W.8, and Mst. Maryam Bibi wife of Ahmad complainant, P.W.9, left for Faisalabad, early in the morning as the deceased had to appear before the Sessions Court as an accused on bail in a murder case, while the others were to meet Manzoor, Bashir and Nazir, their relatives in the Jail at Faisalabad. These persons reached near the tubewell of one Abdullah, situate in Chak No. 21/J. B. , Ranike, at about 7-00 a. m. when suddenly Dosa and Riaz appellants armed with hatchets and Nausher appellant armed with carbine emerged at the scene. Dosa dealt hatchets blow to Muhammad Siddique deceased hitting him near right eye on the right cheek. Thereafter, Riaz dealt hatchet blow to the deceased injuring him at the left ear. After receiving these injuries, Muhammad Siddique fell down. In this fallen condition Dosa and Riaz caused repeated injuries to the deceased with their respective hatchets. Nausher fired twice in the air and declared that whosoever came near would be done to death. Consequently, Ahmad complainant, Mst. Asmat Bibi and Mst. Maryam Bibi did not intervene. After causing injuries to the deceased, the assailants made good their escape. As regards motive, it is alleged that about a year prior to the present occurrence, Muhammad Siddique deceased and his partisans murdered Wali, a relative of the appellants. In that murder case, Muhammad Siddique was released on bail. He was thus murdered by the appellants to avenge the murder of Wali aforesaid.

5. The occurrence was reported to P.W.12 Muhammad Khan, A.S.I. by Ahmad complainant, vide statement Exh.P.B. at Chowk More Khitchian, at 9-15 a.m. Formal F.I.R., Exh.P.B/1, was recorded at the police station on the basis of statement Exh.P.B., by Ghulam Abbas, A.S.I. P.W.2, at 10-15 a.m., on the same day. Preliminary investigation on the spot was conducted by P.W.12 Muhammad Khan A.S.I., while the accused were arrested on 24-1-1979, by Nazir Ahmad, P.W.13, the then Inspector/S.H.O. Police Station Chak Jhumra.

6. Hatchet P.6 was allegedly recovered at the instance of Dosa appellant, on 24-1-1979, vide memo. Exh.P.H., in the presence of P.W.11, Muhammd Din and Ahmad complainant. Similarly, hatchet P.7 was recovered at the instance of Riaz, on the same day, i.e. 24-1-1979, vide memo. Exh.P.J., in the presence of the same witnesses. Both these hatchets were allegedly blood-stained at the time of recovery and as per reports of the Chemical Examiner and Serologist, the result about the blood was in positive. Carbine, P.8, was recovered on 24-1-1979, at the instance of Nausher, in the presence of Muhammad Din, P.W.11, and Ahmad complainant. Two crime empties, P.5/1-2, were recovered on 20-1-1979, from the spot, vide memo. Exh.P.G., in the presence of P.W.10, Muhammad Anwar, and Ahmad complainant. The crime empties recovered from the spot and the carbine, Exh.P.8,1 allegedly recovered at the instance of Nausher appellant, were, however, A not sent for comparison to the Forensic Science Laboratory.

7. Ahmad complainant having been murdered, a fortnight after the occurrence, only Mst. Asmat Bibi, P.W.8, and Mst. Maryam Bibi, P.W.9, testified at the trial as eye-witnesses to furnish ocular account of the prosecution version.

8. The appellants pleaded not guilty and claimed to be innocent. Regarding recoveries, their plea was that these recoveries have been planted falsely on them.

9. Autopsy on the dead body of Muhammad Siddique deceased, was performed by P.W.1 Dr. Iqbal Ahmad Javid, the then Medical Officer, Primary Health Centre, Chak Jhumra, on 21-1-1979, at 8-00 a.m., vide post-mortem report Exh.P.A. Exhs.P.A/1 and P.A/2 are diagrams indicating location of the injuries. The Doctor noticed six incised wounds, one lacerated wound and three abrasions on the body of the deceased. He found that the stomach and small intestine contained semi-digested food. In his opinion, all the aforesaid injuries were ante-mortem. Injuries Nos.l, 2, 3 and 4 were sufficient to cause death in the ordinary course of nature. Injuries Nos.1, 2, 3, 4, 9 and 10 were caused by sharp-edged weapons and the rest by blunt weapons. The deceased died immediately after receiving these injuries.

10. In this case, as already stated above, Mst. Asmat Bibi, P.W.8 and Mst. Maryam Bibi, P.W.9, have only testified as eye-witnesses. Mst. Asmat Bibi, is the real daughter of Muhammad Siddique deceased while Mst. Maryam Bibi is the widow of Ahmad complainant and maternal aunt of Mst. Asmat Bibi. This is a common ground between the parties that there was deep-rooted enmity between the faction of the complainant and that of the deceased on account of murders. Wali Muhammad, a relative of the appellants, was murdered by the deceased and others, sometime prior to the present occurrence. Ahmad complainant was also allegedly murdered by the brothers of Dosa etc. the appellants, a fortnight or so after the present occurrence. Thus, the eye-witnesses were admittedly inimical towards the appellants besides being close relations of the deceased. In the circumstances of this-case, while the appellants might have motive to murder the deceased, the complainant party could also have a motive for the false involvement of the appellants in a murder case. Moreover, Mst. Asmat Bibi and Mst. Maryam Bibi have claimed that they were accompanying the deceased and Ahmad complainant (since murdered) on the day of occurrence, as these two ladies had to meet their relations in the jail at Faisalabad and at the time of occurrence, these ladies were carrying articles like Gur and oil etc. for their relatives in jail. The occurrence has taken place at a distance of 1i miles from the village of these two ladies in the area of another village. These ladies thus besides being interested and inimical witnesses are chance witnesses. In case of interested, inimical and chance witnesses, this Court has always insisted upon independent corroboration. The prosecution seeks corroboration from the alleged recoveries of weapons of offence, made at the instance of the appellants.

11. As regards the recovery of carbine, Exh.P.8, from Nausher, the same is of no consequence because the two crime empties allegedly recovered from the spot and this carbine were not sent for comparison to the Forensic Science Laboratory. The failure on the part of the Investigating Officer to do so raises an adverse presumption against the prosecution.

12. Regarding recoveries of blood-stained hatchets, P.6 and P.7, from Dosa and Riaz respectively, it may be observed that besides the Investigating Officer, these recoveries were allegedly witnessed by Ahmad 1; complainant and Muhammad Din, P.W.11. Ahmad complainant, ;since murdered, has not appeared at the trial to support the prosecution case while P.W.11 Muhammad Din stated that no recovery was effected from the appellants in his presence and that he affixed the thumb-impression on the recovery memos. under the direction of the Station House Officer. This witness was declared hostile by the learned A.P.P. and was subjected to cross-examination but nothing useful, for the purpose of prosecution could be elicited from him. The alleged recoveries of weapons of offence from the appellants, in the above circumstances, do not furnish corroboration to the testimonies of the eye-witnesses because the evidence about the recoveries does not inspire confidence and is thus not trustworthy.

13. It has also been noticed that Mst. Asmat Bibi and Mst. Maryam Bibi have stated that articles like Gur and oil, which they were carrying with them for their relatives whom they were to see in the jail at Faisalabad, were thrown by them at the place of occurrence after the murder of Muhammad Siddique deceased. It has further been disclosed by these ladies that they had pointed out these articles to the Investigating Officer on the spot. P.W.12 Muhammad Khan, A.S.I. has, however, stated that he did not see anything such as bread, Oil and Gur lying near the dead body. In the relevant column of the inquest report, there is no mention of these articles nor of the crime empties.

14. Mst. Asmat Bibi and Mst. Maryam Bibi have deposed that immediately before starting for Faisalabad, the deceased had taken his meals early in the morning while these two ladies and Ahmad complainant carried their meals with them, tied in a piece of cloth. The distance between Chak No. 19/J. B. , the place of residence of the deceased and the eye-witnesses and Chak No. 21/J. B., Ranike, where the occurrence tools place, is 11 miles. This distance can ordinarily be covered in half an hour. The Doctor has noticed semi-digested food in the stomach and small intestines of the deceased at the time of post-mortem examination. Normally, the food becomes semi-digested at least after 1 hours of it having been taken.

15. The occurrence was allegedly reported to P.W.12 Muhammad Khan, A.S. I., at Chowk More Khitchian, at 9-15 a.m., by Ahmad complainant, vide statement Exh.P.B. This witness, immediately after recording the statement, reached the place of occurrence. The post-mortem on the dead body of the deceased was, however, performed on the following day at 8-00 a.m. There is nothing on the record to suggest as to why G the dead body was not despatched to the mortuary, immediately after Muhammad Khan A.S.I. reached the place of occurrence. Any unexplained delay in the despatch of the dead body to the mortuary certainly works adversely to the credibility of the prosecution version.

16. Mst. Asmat Bibi and Mst. Maryam Bibi have sworn affidavits, Exhs.D.A. and. D.B., to the effect that they were not present at the time of occurrence but their names were mentioned by the complainant Ahmad because of his enmity with the accused. These affidavits have been confronted to Mst. Asmat Bibi and Mst. Maryam Bibi and they have admitted their thumb-impressions on these affidavits. They have, however, alleged that they have been defrauded and the affidavits have been obtained from them for being utilised in the appeal filed by Manzoor, husband of Mst. Asmat Bibi, in the High Court.

17. In the light of the short-comings noticed in the prosecution case, as detailed above, it is concluded that there is no independent corroboration on the records to the statements of Mst. Asmat Bibi and Mst. Maryam Bibi, the only two eye-witnesses in this case who are admittedly interested, inimical and chance witnesses. In the absence of such corroboration, reliance cannot be placed on the statements of such interested and inimical witnesses and thus it cannot be said that the prosecution has been successful to bring home the guilt to thel appellants beyond any reasonable doubt.

18. In this view of the matter, I allow this appeal, set aside the conviction and sentences of the appellants and acquit them. Nausher appellant is already on bail. He stands discharged of his bail bonds. Dosa and Riaz appellants, who are in custody, shall be released forthwith, if not required to be detained in any other case.

M. Y. H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.