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Criminal Appeal No.294 of 1984, decided on 15th March, 1986.

‑‑‑S. 302/34‑‑Motive‑‑Motive part of story against two accused, not mentioned in F. I. R.‑‑Variations in statements of witnesses about occurrence of motive‑‑Motive more against witness responsible for dragging sister of accused than deceased‑‑Third accused having expressed grievance and resentment against deceased‑‑Deceased allegedly last seen in company of accused in jolly mood taking Kinnos‑‑Facts deposed at trial about motive of occurrence, held, did not seem to possess any weight to lend corroboration for sustaining conviction in circumstances.

‑‑‑S. 302/34‑‑Recovery of blood‑stained clothes of accused‑‑Identity of clothes vis‑a‑vis accused, not established‑‑‑ Report of Serologist regarding origin of blood, not on record‑‑No presumption, held, could be drawn about evidence of recovery of such clothes, which had to be excluded from consideration in circumstances.

‑‑‑--S. 302/34‑‑Evidence‑‑Appreciation of‑‑Deceased last seen in company of accused‑‑Complainant, father of deceased having seen him in company of accused, never approached them to enquire as to where deceased had gone‑‑Complainant never disclosed the fact to anyone‑‑No suspicion expressed against accused till registration of case‑‑Other witness also not informing any respectable of village about his having seen deceased with accused‑‑Medical evidence contradicting evidence of last seen by fixing time of death‑‑Some sort of doubt regarding credibility of last seen evidence, held, had been created, safe reliance thus could not be placed on such evidence in circumstances.

‑‑‑S. 302/34‑‑Weapon of Offence‑‑Recovery of‑‑No stab wounds on person of deceased found although Chhuri and spear allegedly used‑‑Twenty‑one incised injuries found on deceased‑‑Clothes recovered at instance of accused, found washed but weapon of offence remaining un-cleaned though recovered after 8 days of occurrence‑‑Recovery of blood‑stained weapons of offence, held, was doubtful‑‑Even otherwise it would not be safe at all to base or sustain conviction merely on evidence of recovery of weapon of offence.

Muhammad Din v. The State P L D 1959 S C 491 ref.

S.M. Latif Khosa for Appellants.

Sh. Ehsan Ahmad for the State.

Muhammad Zafarullah Cheema for the Complainant.

Date of hearing: 15th March, 1986.

Muhammad Akhtar (22), Muhammad Afzal (17) and Mubarik (18) were tried under section 302/34, P.P.C. for having murdered Zafar Ullah (deceased) by Additional Sessions Judge, Sialkot. The learned trial Judge, vide order, dated 13‑5‑1984 convicted them under section 302/34, P.P.C. and sentenced each of them to undergo imprisonment for life plus a fine of fts.5,000 each, in default whereof to suffer further R.I. for 6 months, each. Whole of the fine, on realization, has been directed to be paid as compensation to the heirs of the deceased. The convicts have filed appeal.

F.I.R. Exh.P.D/1 was registered at Police Station Head Marala, District Sialkot on 9‑3‑1983 at 4‑30 p. m, on receipt of statement Exh.P.D. of Faqir Sain P.W.16, father of the deceased, recorded by Ahmad Hassan, S.I. P.W.17 on the same day at 3.45 p.m. at bridge Bharthanwala. Following facts have been stated in the F.I. R.

Faqir Sain complainant of the case used to sleep at his Dera while his wife and his son Zafar Ullah used to sleep at his house. Sometimes, Zafar Ullah also used to sleep with his friends at the Dera of Ghulam Nabi Patwari. 11 months before the occurrence Abdul Ghani, sister's husband of the complainant told him that he had heard of Zafar Ullah's illicit relations with Mst. Bushra, wife of Faiz, and advised him to stop him. The father reprimanded his son and warned him to be careful in future, 10/12 days before the occurrence, Mubarik appellant who is brother of husband of Mst. Bushra came to the Dera of the complainant and warned him that if his son does not behave, he will lose him.

On 7‑3‑1983, the complainant came to his house at about 6 p.m. Zafar Ullah was taking his meals. Muhammad Afzal appellant was sitting with him. After Zafar Ullah had finished his meals, both went away. After waiting for 11 hours, the complainant went out to call him. Ahmad and Ashraf met him near culvert in the village. They told him, on query that they had seen Zafar Ullah with his friends, namely Muhammad Afzal, Muhammad Akhtar and Mubarik, sitting near the well taking Kinno. The complainant went there. Zafar Ullah told him that he should go to the Dera and that he will return to the house. When the complainant returned to his house in the following morning, his wife told him that Zafar Ullah had not returned home. He came to know that the deceased had not slept in the Haveli of Ghulam Nabi during that night. He guessed that the deceased might have gone to Lahore to see his friends, however, he continued searching for him.

On 9‑3‑1983 at about 2 p.m. Rashid P.W. 11 informed him that he had seen a dead body floating in the well and a muffler lying near the well. The complainant went to the well accompanied by Muhammad Ashraf and others. The dead body was taken out from the well with the assistance of others, which was identified to be that of Zafar Ullah. Muffler of the deceased lying near the well and some stains of blood were also noticed by the complainant. The complainant expressed suspicion that Mubarik appellant with the assistance of his friends Muhammad Afzal and Muhammad Akhtar had murdered his son because of deceased's illicit relations with his brother's wife.

At the trial, prosecution in all, examined seventeen witnesses.

Evidence of the deceased having been seen last in the company of the appellants has been deposed to by Ahmad Din P.W. 14 and Faqir Sain complainant.

Evidence of, recovery of the blood‑stained earth from near the well, of peels of Kinno taken into possession from there and of the Muffler and pair of Peshawari Chappals taken into possession from the spot, has been led through Ahmad Din son of Allah Ditta P.W.7 and Rana Ahmed Hassan, S.I. P.W.17.

Evidence of recovery of blood‑stained clothes P.5, P.6 and P.7 at the instance of Mubarik appellant, evidence of recovery of blood‑stained shirt P.8, Lacha P.9 and Cheddar P.10, at the instance of Muhammad Akhtar appellant and evidence of recovery of shirt P.11 and Shalwar P.12 at the instance of Muhammad Afzal appellant, has also been led. Munaf Head Constable P.W.12 has deposed about the recoveries at the instance of Mubarik appellant, while Nazar Hussain P.W.13 has deposed about the recoveries at the instance of Muhammad Akhtar and Muhammad Afzal appellants. P.W.17 Rana Ahmad Hasan, S.I. also deposed about the recoveries from each of the three appellants.

Evidence of recovery of blood‑stained Chhuri at the instance of Muhammad Afzal appellant, spear P.14 at the instance of Muhammad Akhtar appellant and hatchet P.15 at the instance of Mubarik appellant has been led through Ahmad Din P.W.14 son of Muhammad Hussain and Ahmad Hasan S.I. P.W.17.

The complainant, in addition to the facts given by him in the first information report, gave another motive for the occurrence, in that he stated that Muhammad Akhtar appellant had illicit relations with Mst. Shaheen, sister of Arif P.W.10. On a day of marriage in the village, deceased informed Arif P.W.10 that he had seen Muhammad Akhtar appellant going to his house to outrage the modesty of his sister. Arif went to his house and found Muhammad Akhtar committing Zina with Mst. Shaheen. He caught hold of him but before he could give any beating Akhtar escaped and ran away. In retaliation, Arif caught hold of Mst. Fahmeeda, sister of Muhammad Akhtar and Muhammad Afzal, and forcibly brought her out in the street. On the alarm raised by Mst. Fahmeeda he ran away. Muhammad Akhtar and Muhammad Afzal felt aggrieved because of this and so they joined hands with Mubarik appellant for committing the murder of Zafar Ullah (deceased).

Abdul Ghani P.W.9 deposed about motive part of the evidence against Mubarik appellant while Arif P.W.10 deposed about the incident of Muhammad Akhtar having gone to his house and having been found by him there in connection with his illicit relations with his sister, on an information supplied by the deceased.

The medical evidence was deposed to by Dr. Syed Sajad Ali P.W.5 who had conducted autopsy on the dead body of Zafar Ullah (deceased) at I1‑30 a.m. on 10‑3‑1983. The doctor had noted in all dl incised wounds on the body of the deceased, 7 of which were on different sides of the head 5 were on the hands and fingers, etc. and 9 on the neck, cheek and chin, etc.

The doctor opined that the deceased had died as a result of injuries Nos.l, 3 and 5 which have been described as follows:‑

(1) Incised wound 3" x " x bone out on frontal part of skull.

(3) Incised wound 3 x " x bone cut on right temporal region of skull.

(5) Incised wound 5" x " x bone cut on occipital rlegion about " below injury No.4.

All the injuries were opined to have been caused by sharp‑edged weapons. The duration between death and post‑mortem has been stated to be about 3‑4 days.

No eye‑witness account has been produced.

The appellants during their statements under section 342 of the Code of Criminal Procedure denied the prosecution case and pleaded innocence. They also denied to have led to the recoveries of blood‑stained clothes or weapons of offence. The motive part of the prosecution case has also been denied by the appellants.

The contention of learned counsel for the appellants that the prosecution has not been able to prove motive in this case, has been examined by me after going through the evidence. Motive part of the story deposed at the trial against Muhammad Akhtar and Muhammad Afzal appellants was not mentioned in the first information report. A Apart from the fact that there is variation in the statements of Faqir Sain complainant and Arif P.W.10 about Muhammad Akhtar's conduct in the house of Arif, the other important thing is, that if, as stated by Faqir Sain complainant, Arif had dragged Mst. Fahmeeda, sister of Muhammad Akhtar and Muhammad Afzal from her house as a retaliation out in the street, Muhammad Akhtar and Muhammad Afzal appellants would have felt more aggrieved against him than Zafar Ullah (deceased) because the act of Arif, would have been more insulting and annoying for them.

The motive alleged against Mubarik appellant also seems to be doubtful in view of the statements of Ahmad Din and Faqir Sain P.Ws. that the deceased was seen by each of them sitting with Mubarik and the other two accused in a jolly mood taking Kinno. The argument of learned counsel for the appellants in this regard that the motive and the evidence of last seen, was mutually destructive, seems to possess weight. Had Mubarik appellant expressed his grievance and resentment against the deceased and had he warned father of the deceased, the deceased would not have gone in his company, for reasons of safety. The facts deposed at the trial about motive for the occurrence, thus do not seem to possess any weight to lend corroboration fell sustaining conviction of the appellants.

The evidence of recovery of blood‑stained clothes at the instance of the appellants, suffers from lack of connection of these clothes, with the appellants. None of the witnesses who had witnessed and attested the recoveries, stated at the trial as to whom the clothes belonged. In the absence of a clear statement in this regard, it is not possible to presume that the clothes recovered at the instance of each of the appellants, belonged to each one of them. No evidence has been led that anyone had seen them wearing blood‑stained clothes after the occurrence. Although the opinion of the Chemical Examiner with regard to the blood stains on these clothes, has been exhibited, but report of Serologist with regard to the origin of blood (whether it was human blood) is not placed on the record. No presumption, therefore, can be drawn about the evidence of recoveries of blood-stained clothes and so the same, has, therefore, to be excluded from consideration for maintaining the conviction.

The evidence of the deceased having been seen last is perhaps the most important piece of evidence in this case. It has been deposed to by Faqir Sain complainant, who is father of the deceased, naturally an interested witness, and Ahmad Din P.W.14.

It has not been stated by Faqir Sain that before the dead body of the deceased was recovered from the well, he had ever approached anyone of the appellants, to enquire as to where the deceased had gone. He has not even mentioned the fact that he had talked about his having seen the deceased, last, in the company of the appellants, to anyone. No suspicion was even expressed by him till before the case was registered. He knew it quite well that his son was missing and he had been searching for him and making enquiries from within the village and outside as well. His not having disclosed this fact to anybody in spite of that, makes his deposition in this regard, doubtful.

Similarly the statement of Ahmad Din P.W.14 does not seem to possess weight. The fact of the deceased having been lost must have been a talk of the village. If Ahmad Din had seen the deceased together with the appellants, he should have come forth, and not only suggested to the complainant to enquire from the appellants but should have informed the respectables and elders of the village as well, but no such thing seems to have been done by him, as nothing is stated, by him. He admitted in cross‑examination that he was collateral of Faqir Sain. Thus, the possibility of his having been set up as a false witness cannot be ruled out. Yet the other important thing about the deceased having been seen last in the company of the appellants is the contradiction by the medical evidence. According to Faqir Sain and Ahmad Din P.Ws. they had seen the deceased last in the company of the appellants, late in the evening of 7th March, 1983. Autopsy on the dead body was conducted at 11‑30 a.m. on 10‑3‑1983, which means that the deceased was alive 21 days before autopsy. But the doctor has expressed the opinion that death had occurred 3 to 4 days prior to the autopsy, meaning thereby that minimum period was 3 days while the maximum was 4 days.

Although the opinion about the duration may not be conclusive but it does create, some sorts of doubts about the credibility of the last seen evidence. In this view of the enunciation of this piece of evidence, safe reliance cannot be placed on the statements of Faqir Sain and Ahmad Din about their having seen the deceased last in the company of the appellants.

The only evidence which remains to be reckoned with, is recovery weapons of offence at the instance of the appellants.

Apart from the fact that it would not be safe at all to base or sustain conviction merely on the evidence of recoveries of blood‑stained weapons, the other notable thing is, that two of the weapons recovered from the appellants i.e. Chhuri and spear do not seem to have been used in their normal fash4on i.e. of causing stab wounds. Although no rule can be laid down that incised injuries cannot be caused by Chhuries and spears but in this case where 21 incised injuries are found to have been caused, the fact of none having been found by a sharp‑edged pointed weapon, as a stab wound, puts one on alert to consider whether these weapons were used or not

Yet the other important thing for consideration is that if the clothes recovered at the instance of the appellants were found washed, the weapons of offence having been allowed to remain uncleaned, also seems to be doubtful.

The observation that conviction cannot be sustained on the basis of evidence of recovery of blood‑stained weapons alone, has been expressed by me following the observation made by the Hon'ble Chief Justice Muhammad Munir (as he then was) in Muhammad Din v. The State P L D 1959 S C 491, wherein after discarding the ocular account and the other evidence, while coming to the recovery of blood‑stained stick, the Hon'ble Judge held that the recovery of blood‑stained stick alleged to have been made at the instance of the appellant 6 days after the occurrence, is not by itself, sufficient to maintain conviction.

In the case in hand the recovery of weapons of offence was stated to have been effected 8 days after the occurrence.

For the reasons enumerated above, this appeal is allowed. The convictions and sentences of the appellants are set aside. They shall be released forthwith if not required in any other case.

S. A. Appeal accepted.

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