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Criminal Appeals Nos. 177 and 178 of 1980, decided on 28th May, 1985.

(On appeal from the judgment and order, dated 17‑3‑1980 of the Lahore High Court passed in Criminal Appeals Nos. 41 and 176 of 1978).

‑‑‑S. 302/34‑‑Appreciation of evidence‑‑Testimony of eye‑witnesses‑ Evidence of recovery‑‑Motive‑‑Eye‑witnesses two in number, out of them one was not injured although he claimed that he was present when his sons were attacked‑‑No recovery was admittedly effected at the instance of one accused though a blood‑stained spear was allegedly recovered at the instance of other accused‑‑Such recovery was affected seven days after arrest of accused when admittedly Investigating Officer was already present in village for purpose of investigation for past two or three days but had apparently not searched for spear during those days although there was no difficulty in its search, place of recovery being easily accessible‑‑No good reason having been shown as to its non‑recovery during all this time, evidence of recovery was doubtful and could not be relied upon‑‑Motive for attack was attributed to suspicion entertained by complainant party with regard to theft of their mustard crop at hands of accused party some three months prior to occurrence‑‑No previous enmity existed between parties‑‑No enmity existed with one of the two accused who was stated only to be a friend of one accused‑‑Manner described by prosecution in which two deceased persons suffered injuries and death also found to be open to doubt‑ Suggestion was made during cross‑examination of eye‑witnesses that before present occurrence, there had been an earlier occurrence in which prosecution witness was injured‑‑Possibility of murder being a blind one also present‑‑Real story found to be different from one laid before Court by prosecution while true facts were suppressed‑‑Case of prosecution both against accused persons and as against acquitted accused found to be not fundamentally different and there was no sound reason for convicting them while acquitting others‑‑Prosecution story given at trial was therefore, found to be untrue and was not believed by High Court‑‑Supreme Court holding approach of High Court to case to be fair and proper and‑ conclusion based on a correct appraisal of evidence, refused to interfere in judgment of acquittal of both accused by High Court in circumstances.

Maqbul Elahi Malik, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Mian Inamul Haq, Advocate Supreme Court for Respondent No,l.

Malik Rab Nawaz Noon, Advocate Supreme Court for Respondent No. 2 (in Cr. A. 177/80).

Muhammad Ismail, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 3 (in Cr. A. 178/80).

Dates of hearing: 27th and 28th May, 1985.

‑‑This judgment will dispose of Criminal Appeals Nos. 177 and 178 of 1980 which have arisen out of the same incident and are directed against the same order of the Lahore High Court.

The appellant's brother Muhammad Taj, was murdered on the 27th of June, 1975 at 7 a.m. In the F.I.R. lodged by the appellant at 8 a.m., five persons including the two respondents Muhammad Akbar and Nazir were named as the assailants. It was alleged that the said two respondents were armed with spears, whereas the other three accused were armed with a hatchet, pistol and a Sota respectively. All the accused were arrested on the 29th June, 1975. And at the instance of respondent Muhammad Akbar a Barchhi was allegedly recovered. This was found to be stained with human blood. There was, however, no recovery at the instance of respondent Nazir. The above incident, according to the prosecution, took place as follows:‑

On 27‑6‑1975 at about 7 a.m. Muhammad Niaz Khan P.W. 8 and his brother Muhammad Taj deceased were going to Pindigheb to see their sister. When they reached near the Dhok of Khairdi, the father of Muhammad Akbar (respondent), the said Akbar son of Khairdi, Nazeer son of Amir Khan armed with spears, Razaq son of Mehr Khan armed with pistol, Akbar son of Waris armed with a hatchet, Nazeer son of Ali Bahadur armed with a Soti blocked their way. Razaq exhorted his companions to kill both Muhammad Taj (deceased) and Muhammad Niaz P.W. Thereupon, Akbar son of Waris, Razaq son of Waris, Razaq son of Mehr Khan and Nazeer son of Ali Bahadur formed a circle around them. In order to escape from their tormentors the deceased and the P.W. started running towards their house. However, they could not do so because before they could succeed Nazir son of Amir Khan (respondent) inflicted a spear blow on the chest of Muhammad Niaz P.W. and also gave him a head injury with his spear. Thereafter, he also inflicted a spear blow to Taj Muhammad deceased in the region of his throat. Muhammad Akbar son of Khairdi (respondent) also inflicted two spear blows on the hand and chest of the deceased which fell him down. Nazir son of Ali Bahadur inflicted a Soti blow on the person of Muhammad Niaz P.W., while Akbar son of Waris inflicted a hatchet blow using its blunt side on his back. Nazir son of Ali Bahadur also poked the back of Muhammad Niaz P.W. with his Soti. However, the alarm raised by the victims of this attack attracted inter alia, Muhammad Khan, the father of the deceased who was present at his Dhok at that time.

At the trial the eye‑witness account of the incident was given by Muhammad Niaz who was injured in the attack but had fortunately survived to tell the tale and his father Muhammad Khan P.W. 9.

The trial Court (Additional Sessions Judge, Campbellpur) believed the evidence adduced by the prosecution as against the two respondents, namely, Muhammad Akbar son of Khairdi and Nazir son of Amir Khan but was not satisfied with respect to the guilt of Akbar son of Waris, Nazir son of Ali Bahadur and Razzaq son of Mehr Khan and acquitted them. The convicted respondents were sentenced to imprisonment for life and a fine of Rs.3,000 each under section 302/34, P.P.C. Respondent Nazir was also found guilty under section 307, P.P.C. and sentenced to five years' R.I. and a fine of Rs.500.

Dissatisfied with the judgment of the learned Additional Sessions Judge the two respondents filed separate appeals in, the High Court, namely. Criminal Appeal No. 41 of 1978 and Criminal Appeal No. 176 of 1978 which were heard by a learned Single Judge of the said learned Court.

The learned Single Judge of the High Court was pleased, in a well‑reasoned order, to accept both the appeals and to acquit both the respondents of all the charges against them by his judgment dated 17‑3‑1980. The learned Judge said that the case of the prosecution rests on the testimony of the eye‑witnesses, the evidence of recovery and that of motive. The eye‑witnesses were two in number, namely, Niaz Muhammad and his father (Muhammad Khan). Out of them Muhammad Khan was not injured although he claimed that he was present when his son Muhammad Niaz P.W. and Muhammad Taj were attacked. The latter was killed and the former (Niaz P.W.) severely injured, receiving 8 injuries.

Coming to the recoveries, the learned Judge said that no recovery was admittedly effected at the instance of Nazir (respondent) though a blood‑stained spear was allegedly recovered at the instance of the other respondent, Muhammad Akbar.

The motive for the attack, the learned Judge observed, was attributed to the suspicion entertained by the complainant party with regard to the theft of their mustard crop at the hands of the appellant party, some three months prior to the occurrence and that it was this incident that started the trouble. Proceedings, the learned Judge remarked that Muhammad Akbar (respondent) and the deceased were first cousins. Akbar's father and the father of the deceased being real brothers and apart from the incident regarding theft of mustard crop no previous enmity existed between the parties. No enmity moreover. existed with Nazeer (respondent), who was stated only to be a friend of Muhammad Akbar (respondent).

Adverting to the evidence of recovery of the blood‑stained spear at the instance of Akbar (respondent) he remarked that this was effected seven days after his arrest. Admittedly, the Investigation Officer was already present in the village for the purpose of investigation for the past two or three days but had apparently not searched for the spear during these two or three days, although there was no difficulty in its search because the place of recovery was easily accessible and the spear too was not hidden anywhere in the room. Hence, there was no good reason why this was not recovered during all this time. He, therefore, found that the evidence of recovery was doubtful and could not be relied upon.

Discussing the ocular testimony, the learned Judge said that while the deceased Muhammad Taj and Niaz P.W. were attacked by the respondents and their co‑accused but their father Muhammad Khan P.W. was spared. This was not probable if he was really present at the spot. Indeed, if he had been present on the spot it was not possible to conceive that he would have stood by and seen his two sons being severely injured and made no attempt to intervene.

The manner, described by the prosecution in which Muhammad Niaz and Taj Muhammad P.W. suffered injuries and death, was, according to the learned Judge, also open to doubt. He said that a suggestion was made during the cross‑examination of the eye‑witnesses that before the present occurrence there had been an earlier occurrence in which Niaz P.W. had been injured. In this connection, he noticed a statement made by Niaz P.W. (Exh. D.A.) before Malik Falek Sher, D.S.P., who had also investigated the case, wherein he had stated that at morning time on the day of the occurrence Muhammad Akbar respondent armed with a stick had attempted to attack him but he had run away and told the story to his brother. The learned Judge remarked that Niaz P.W. in all probability, had been injured in the aforesaid incident. In this connection, he observed that according to the prosecution Niaz (P.W. 1) and Taj (deceased) were ambushed by the respondents when they passed by their house on 27‑6‑1975 at 7 a.m. But admittedly the accused were not aware of their programme and without this knowledge it was not possible that respondent Muhammad Akbar could have got together Nazir (respondent) and the other co‑accused at his house so early in the morning with a view of ambush Niaz P.W. and his brother Taj. In these circumstances, either Niaz P.W. was not present when Taj was killed, as alleged by the defence and that this was a blind murder; while Niaz P.W. was injured in the earlier occurrence. In any case, the real story was different from the one laid before the Court by the prosecution and that the true facts were being suppressed. The fact that Niaz P.W. and the deceased had many other alternative paths which could take them to Pindigheb showed that in case the prosecution story regarding the motive was correct they would not have chosen the path which led them by the house of their enemies. Moreover, the case of the prosecution as against the respondents and as against the acquitted accused was not fundamentally different and there was no sound reason for convicting them while acquitting the others. For all these reasons, the learned Judge held that the prosecution story given at the trial was untrue and could not be believed.

Malik Maqbool Elahi, learned counsel for the complainant /appellant contended before us in support of these appeals against the order of their acquittal that Muhammad Niaz P.W. was injured during the incident and there was no reason for him to falsely implicate Muhammad Akbar respondent who is a son of his paternal‑uncle. Similarly, there was no reason for Muhammad Khan P.W. to falsely implicate his own nephew in this occurrence. Respondent Nazir was only a friend for Muhammad Akbar and the witnesses had also no motive to falsely implicate him in the incident.

We do not find much force in these submissions, as they do not detract the weight of the cogent reasons given by the learned Judge in his impugned judgment for not accepting the prosecution case. Moreover, it overlooks the factum of the earlier incident which took place which was admitted by Niaz P.W. in his statement before Malik Falek Sher D.S.P. in ,which incident Niaz P.W. was injured, probably by the respondents.

Mr. Maqbool Elahi, in an effort to meet this aspect of the case, submitted that the statement Exh. D.A. allegedly made by Niaz P.W. before Malik Falak Sher, D.S.P. was not admissible in evidence.

However, we observe that this statement (Exh. D.A.) was recorded during the investigation of the case by Malik Falak Sher, D.S.P. The witness (Muhammad Niaz P.W.) was duly asked whether he had made this statement when he appeared before the trial Court to give his evidence. He denied having made the said statement. Hence, he was confronted with the statement (Exh. D.A.) Recorded by Malik Falak Sher and this fact was brought on the record. The learned counsel was unable to explain why this part of the record could not be taken into consideration.

We are inclined to agree with the conclusion arrived at by the learned Judge in the High Court. His approach to the case has been fair and proper and his conclusion is based on a correct appraisal of the evidence. No ground to interfere with the judgment of the High Court has, therefore, been made out.

These appeals must, therefore, fail and are dismissed hereby. With the result that the respondents will be released forthwith if not required in any other case.

M . B . A . Appeals dismissed.

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