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Criminal Appeal No. 247 and Murder Reference 122 of 1985, decided on 19th November, 1985.
‑‑ S. 302 34 ‑First Information Report being not a genuine docu ment and prepared after preliminary investigations‑Names of wit nesses, names of accused persons and even brief detail of occur rence not mentioned in of inquest report‑Omission of names of eke‑witnesses in inquest report also giving rise to irresistible conclusion that either there was no eye witness of occurrence or their names were not known by time inquest report was prepared‑Occurrence appearing to be unseen Prosecution witnesses interested and partisan and eye‑witnesses being chance witnesses who were residents of distant places and unable to give any probable cause of their presence on spot No circumstantial guarantee or judicial certainty existing of their presence on spot‑Omission of their names in inquest report rather showing that they bad not seen occurrence‑Ocular testimony not supported by disinterested persons‑Witnesses of recovery were also interested persons and not a single disinterested person was examined by prosecution‑Complainant party and accused were involved in criminal litigation and accused and eye‑witnesses had been appearing as witnesses against each other in criminal cases‑Accused stat d to have appeared as an eye‑witness in a murder case against complainant party No satisfactory basis exist ing to uphold conviction and sentence in circumstances‑Accused given benefit of doubt and acquitted.
‑‑ S. 302/34‑Conviction on statement of interested and inimical witnesses, held, was contrary to rule of safe administration of justice in criminal cases.
Ijaz Hussain Batalvi and M. A. Zafar for Appellants.
Kh. Shaukat Ali for the State.
Dates of hearing : 18th and 19th November, 1985.
‑This Criminal Appeal and the connected Murder Reference, arise from the judgment of learned Sessions Judge, Sargodha whereby he on 14‑4‑1985, while acquitting Muhammad Sharif, convicted Asghar Ali (38), Zaka Ullah (36), Sana Ullah (30) and Ishfaque (35), under section 30 /34, P. P. C. for causing the death of Muhammad Sharif and sentenced them as under :‑
(i) Asghar Ali appellant to death and a fine of Rs. 5,000 in default thereof two years' R. 1.
(ii) Zaka Ullah, Sana Ullah and Ishfaque appellants to imprisonment for life and a fine of Rs. 5,000 in default thereof two years' R. 1. No compensation was awarded to the legal heirs of the deceased under section 544‑A, Cr. P. C.
It may be noted that Mirza co‑accused was done to death during the trial.
2. The occurrence took place' on 10‑2‑1984, at 11‑30 a.m. near 'Samnala' within the area of Chak No. 87/G five kilometeres from Police Station Baghtanwala. The F. 1. R. Exh. P. G. was lodged by. Muhammad Riaz P. W. 6. brother of the deceased on the same day at 12‑10 p.m. which was recorded by Abdul Karim S. I. P. W. 11.
3. The motive as alleged by the prosecution was that 16/17 years before the occurrence, Sardar Khan father of Asghar Ali and Zaka Ullah appellants was murdered, Muhammad Ashraf deceased alongwith his four brothers including Muhammad Riaz complainant were challaned and tried for his murder and were ultimately acquitted, hence this occur rence.
4. As far the main occurrence, it has been stated that Muhammad Riaz son of Pir Bakhsh P. W. 6 had gone to see his sister in Chak No. 82. When he was returning from there and was present near the spot to await the Bus at I1‑30 a.m. Muhammad Riaz P. W. 9 came there riding a Motor Cycle and the deceased was sitting behind. All of a sudden Asghar Ali and Zaka Ullah armed with hatchets, Sana Ullah holding a Bicycle and Ishfaque empty handed appeared front the side of shop of Iqbal Machhi. They raised Lalkara to the effect that Muhammad Ashraf shall not be allowed to get away. Sana Ullah appellant threw his Cycle in front of the Motor Cycle of Muhammad Riaz P. W. 9. He and the deceased got down from the Motor Cycle. Asghar Ali gave hatchet blow on the head of Muhammad Ashraf. He fell down, Sana Ullah and Ishfaque caught hold of him by legs. Zaka Ullah caused him injury on his neck. Muhammad Riaz went forward to rescue Muhammad Ashraf.
The appellants tried to chase him and he ran away to save himself. The occurrence was also seen by Zia Ullah P. W. 8 and Haq Nawaz (not produced). The alarm attracted people at the spot. Leaving behind Cycle and a pair of shoes, the appellants made good their escape. Muhammad Ashraf succumbed to the injuries on the spot.
5. Dr. Chaudhry Muhammad Ashraf, P. W. 1 conducted post‑mortem examination on the dead body of Muhammad Ashraf on 10‑2‑1984 at 4‑30 p.m. He found following injuries :‑
(1) Incised wound 6 x 1 on the right side of the skull,' anterio posteriorly on right frontal and parietal bones. Brain matter was coming out of the wound.
(2) Incised wound on the throat 7 x 1 anteriorly cutting all the structures of bone.
In his opinion the death of Muhammad Ashraf occurred due to shock and haemorrhage resulting from these injuries. Each of the injury was sufficient to cause death in the ordinary course of nature. The injuries were ante‑mortem and caused by sharp‑edged weapon.
6. On 10‑2‑1984, the Police recovered Cycle P. 6 and pair of shoes P‑8/1 and 2 from the spot and took them into possession vide memo. Exh. P.D. attested by Muhammad Nawaz P. W. 5 and Arshad Mahmood (not produced). On the same day Abdul Karim S. I. P. W. 11 took into possession blood‑stained hatchet P‑7 from the spot vide memo. Exh. P.E. attested by the same witness.
7. Asghar Ali, Zaka Ullah and Ishfaque appellants were arrested on 13‑2‑1984. by Abdul Karim S. I. P. W. 11. Sana Ullah appellant was arrested by the same Police official on 18‑2‑1984. On 13‑2‑1984. Zaka Ullah appellant led to the recovery of blood‑stained hatchet P‑Q from cattle shed which was taken into possession vide memo. Exh. P.F. attested by Muhammad Nawaz P. W. 5, Arshad Mahmood (not produced) and Abdul Karim S. I. P. W. 11. Serologist report Exh. P.M. reveals that the hatchets P‑7 and P‑9 were stained with human blood.
8. To prove its case, the prosecution examined as many as 11 wit nesses. Muhammad Riaz complainant P. W. 6, Zia Ullah P. W. 8 and Muhammad Riaz son of Muhammad Bakhsh P. W. 9 have given the ocular account of the occurrence. They claim to have seen Sana Ullah and Ishfaque appellant catching hold the legs of Muhammad Ashraf and Asghar Ali and Zaka Ullah inflicting hatchets blows to him. Muhammad Bakhsh P. W. 5 has supported the recoveries from the spot and recovery of blood‑stained hatchet P‑9 from Zaka Ullah appellant. Muhammad Riaz complainant has also deposed about the motive. Dr. Chaudhry Muhammad Ashraf P. W. I has proved the post‑mortem report. The rest of the evidence is of formal nature.
9‑ When examined under section 342, Cr. P. C. the appellants denied all incriminating circumstances. They raised ilea of false implication on account of enmity. In defence no witness was produced.
10. The learned trial Court giving him the benefit of doubt, acquitted Muhammad Sharif co‑accused and while believing the motive, ocular evidence and the recovery witnesses convicted and sentenced the appellants as stated above.
11. The learned counsel for the appellants contends that prosecution has failed to prove its case beyond reasonable doubt inasmuch as the F. I. R. was recorded after preliminary investigation ; that the eyewit nesses had actually not seen the occurrence ; that the eye‑witnesses are interested and that Muhammad Nawaz P. W. 5 the recovery witness was a related as well as inimical witness. Conversely the learned counsel for the State supported the judgment of the trial Court.
12. We have considered the arguments advanced by the learned counsel for the parties with care. We feel persuaded to agree with the learned counsel for the appellant. We find that the F. 1. R. Exh. P.G. is not a genuine document. It seems to us that it was prepared after " preliminary investigation, the names of the witnesses, the names of all the accused persons and even brief detail of the occurrence are not mentioned in "KHANA MUKHTASIR HALAT MUKADMA" of the inquest report. Abdur Karim S.‑I. P. W. 11 has stated that be had written the brief facts of the inquest report in accordance with the contents of the F I. R. Had the F. I. R. A been written before preparation of inquest report, then the names of the eye‑witnesses. the names of all the accused and the manner of the occur rence certainly would have been mentioned in the inquest report which was prepared on the spot. The omission of the names of the eye‑witnesses in the inquest report also gives rise to the irresistible conclusion that either there was no eye‑witness of the occurrence or their names were not known by the time the inquest report was prepared. Thus, there are reasons to doubt that it was a seen occurrence. Muhammad Riaz P. W. 6, Zia Ullah P. W. 8 and Muhammad Riaz son of Muhammad Bakhsh P. W. 9 are interested as well as partisan witnesses. Muhammad Riaz P. W. 6 is the brother of the deceased. Muhammad Riaz son of Muhammad Bakhsh P. W. 9 is an. old friend of the deceased. All the three eye‑witnesses are chance witnesses as well. The house of Muhammad Riaz P. W. 6 was at a distance of one mile from the place of occurrence. The house of Zia Ullah P. W. 8 is at a distance of 1 mile from the place of occurrence Muhammad Riaz son of Muhammad Bakhsh P. W. 9 used to live at a distance of 20/22 miles from the spot. They have not been able to give any probable cause of their presence on the spot. There is no circumstantial guarantee or judicial certainty of their presence on the spot. The omission of their names in the inquest report rather shows that they had not seen the occurrence‑ All the three eye witnesses are interested and partisan witnesses. The complainant party and the accused were involved in criminal litigation. The accused and the eye‑witnesses had been appearing: as witnesses against each other in criminal case. During the trial of this case, Mirza co‑accused was done to death and Muhammad Riaz P. W. 6 was involved in the case. At the time of his evidence he was in custody and brought from the jail. Muhammad Riaz P. W. 6 has stated that Ashraf deceased of this case was prosecuted for the murder of Sardara Gondal and that Mirza co -accused was the first informant, Sana Ullah and Asghar Ali were the eye witnesses in that case. The witness further stated that Nawaz his brother was challaned for the murder of aforesaid Sardara. He also admitted that Zia Ullah P. W. had lodged a murder case against Khadim Hussain a relative of the appellants. Zia Ullah P. W. 8 has admitted that he alongwith others were challaned for the murder of Anwar Khokhar, and aforesaid Khadim had appeared as an eye‑witness against him. He also admitted that the revenge of the murder Anwar Khokhar,_ his (witness) nephew and niece were murdered and case was registered against Khadim and that Sadiq brother of the deceased had appeared as a witness in that case. Muhammad Riaz P. W. 9 stated that he was friendly with the deceased for the last 8/10 years and that his house was at a distance of 20/22 miles froth the place of occurrence. The ocular testimony is not supported by any disinterested parson. Muhammad Nawaz P. W. 5. the witness of the recovery is also an inter ested person. The deceased was his younger brother. He was also challaned for the murder of Sardara which allegedly was the motive for present occurrence. The witness has admitted that Sana Ullah appellant had appeared as an eye‑witness in that case. The witness also admitted that Mirza co‑accused (since murdered) was the complainant against him and that he was under arrest in the case of the murder of Mirza co‑accused, Abdul Karim S. I. P. W. 11 being investigation officer was also interested in conviction. Muhammad Riaz F. W. 6 has stated that some persons were present at some distance from the spot at the time of occurrence yet not a single disinterested person has been examined by the prosecution. For all these reasons we are of the view that it would be contrary to the rule of safe administration of justice in Criminal cases to sustain conviction of the appellants on the statements of interested and inimical witnesses.
13. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellants so while giving them the benefit of doubt, they are acquitted of the charges. They shall be released forthwith if not required to be detained in some other case.
The sentence of death is not confirmed.
M. Y. H. Appeal accepted.
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