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Criminal Appeal No. 366 and Murder Reference No. 135 of 1979, decided on 18th November, 1981.
---S. 302--Recovery evidence, evaluation of--Allegedly blood-stained, Khanjar recovered on pointing of accused on last day of his physical remand and .such recovery witnessed by stock police-witnesses- Recovery discarded, in circumstances.--[Recovery].
---S. 302--Evidence, appreciation of--Benefit of doubt--Eye-witnesses related to deceased and inimical to accused---Such eye-witnesses attempting to improve upon story as initially set up--According to F.I.R. two of assailants muffled their faces and possibility that third accused also muffled his face, not ruled out--No independent corroboration available to connect accused with crime--Acceptance of ocular testimony and evidence of motive, held, not sufficient to prove participation of accused in occurrence--Accused given benefit of doubt and acquitted in circumstances.
Habib Ahmad Khan for Appellant.
Rana Muhammad Anwar for the State.
Muhammad Saleem and Moeen-ud-Din Chaudhry for the Complainant.
Dates of hearing: 16th, 17th and 18th November, 1981.
.--Muhammad Ishaque, Muhammad Irshad and Abdul Jabbar were tried by the Additional Sessions Judge, Sahiwal, under section 302/34, P.P.C., for the murder of Muhammad Ijaz, deceased. Incidently, it may be mentioned that challan was sent up by the police only against Muhammad Ishaque under section 302, P.P.C., for the said murder, but Muhammad Idrees, complainant, filed a complaint against Muhammad Irshad and Abdul Jabbar under section 302/34, P.P.C., for the same murder, whereupon process was also issued by the trial Judge to Muhammad Irshad and Abdul Jabbar, accused, to face the trial for the said offence. As the story of the prosecution, as given in the F.I.R. .Exh. P.C., and that of the complainant, in the complaint, were almost identical, the case of all the three accused was taken up in the challan case and Muhammad Idrees P.W. 5, complainant, made a statement that he did not want to pursue the private complaint, which was accordingly filed. The learned trial Judge by his judgment, dated 27-3-1979 convicted Muhammad Ishaque, accused, under section 302, P.P.C. and sentenced him to death, subject to confirmation by this Court and to pay a fine of Rs.5,000 or to undergo one year R.I. in default thereof. Half of the fine, if recovered, was ordered to be raid to the legal heirs of Muhammad Ijaz, deceased, as compensation under section 544-A, Cr. P. C. The appeal (Criminal A. 366/79) filed by Muhamasd Ishaque, convict, the reference (M.R. No. 135/78) submitted by the Sessions Judge and the private revision (Criminal Revision 761/80) filed by Muhammad Idrees, complainant, against setting aside the acquittal of Irshad and Jabbar, acquitted accused, are now before us for disposal.
2. The brief facts of the case are that Muhammad Ishaque accused wanted to marry Mst. Parveen, daughter of Idrees, complainant P.W. 5. He made this proposal through Muhammad Hanif P.W. 6. This was not acceptable to the complainant and his brother Ijaz, deceased, who refused to accede to the demand made by the said accused. The accused then started pressurising and threatening them with dire consequences, in case his demand was not accepted. These tactics failed, whereafter Ishaque, accused, started making overtures towards Mst. Parveen, in a bid to develop illicit intimacy with her. He did not succeed by this method either. About six months prior to the occurrence, Ishaque and his co-accused came to the house of Idrees P.W. 5. Ijaz, deceased, was also present there, who in order to scare them away fired in the air, which resulted in the registration of a case under section 307/34, P.P.C., with Police Station Arifwala, District Sahiwal, against Idrees P.W. 5 and his brother Ijaz, deceased. After this incident, Muhammad Idrees P.W. 5 and Ijaz, deceased, engaged Mst. Parveen with someone else and fixed the date of her marriage. They were preparing for the marriage and had to make purchases in this behalf.
The story as first set up in the F.I.R. Exh. P.C. is as follows: On 26th January, 1976, Muhammad Idrees P.W. 5 and Ijaz, deceased, had gone to Arifwala for purchasing utencils to be given to Mst. Parveen in marriage. They returned from Arifwala in the evening by bus and got down at Adda Jewan Shah, wherefrom they started walking to.their Chak. In the same bus, Muhammad Hanif P.W. 6 and Abdul Aziz (won over P.W.) were also travelling, who also alighted at Adda Jewan Shah and were following behind them. In the way near Chak Reriwala Muhammad Idrees P.W. 5 entered a nearby field in order to ease himself. Ijaz, deceased,- however, continued walking slowly towards his Chak, with a bundle of utencils on his head. Shortly thereafter, Muhammad Idrees, complainant -P.W. 5 got up and heard an alarm and rushed towards his brother. The sun had set by then. He saw three assailants, who had felled his brother in a wheat field, inflicting knife injuries or him. Muhammad Hanif P.W. 6 and Abdul Aziz (won over P.W.) had also in the meantime reached the spot near the deceased. Out of the assailants, Muhammad Ishaque accused was one of them, who had felled the deceased and was cutting his throat. The other two assailants had muffled their faces, who on seeing them ran away. These two assailants had worn Chaddar and Kameez. Muhammad Ijaz deceased died at the spot. Due to fear, the witnesses did not try to apprehend the assailants. Leaving Muhammad Hanif P.W. 6 and Abdul Azia (won over P.W.) near the dead body, Muhammad Idrees P.W. 5 went to Police Station Arifwala, where he lodged F.I.R. Exh. P.C. at 9-00 p.m., which was recorded by Muhammad Ishaque, Sub--Inspector, P.W. 10.
3. After recording the F. I. R. Exh. P. C. at Police Station Arifwala, Muhammad Ishaque, S.I. , P.W. 10 proceeded to the spot alongwith Idrees, complainant P.W. 5, Muhammad Waryam (won over P.W.) and some foot constables. Muhammad Hanif P.W. 6, Shabbir P.W. 7 and Muhammad Aziz (won over P.W.) were present near the dead body. According to the facts stated in the challan, on the way Muhammad Idrees P.W. 5 informed Muhammad Ishaque, S.I., P.W.10 that actually Muhammad Ishaque accused had alone committed the murder, but as he suspected Muhammad Irshad and Abdul Jabbar accused as having a hand in it, he had mentioned in the F.I.R. that there were two other assailants also with Muhammad Ishaque accused. On this disclosure, Muhammad Ishaque S.I. P.W. 10 recorded the supplementary statement Exh. D.A. of Muhammad Idrees P.W. 5 detailing the said facts. Therefore, the Investigating officer prepared the injury statement of the deceased and the inquest report and then despatched the dead body for post-mortem examination. Blood-stained earth was taken from the spot, vide recovery memo. Exh. P.E. Two Parats P.7/1-2, two Degchas P.8/1-2, two Pandans P.9/1-2 tied in sheet P. 10 and cap P.11 were found lying near the dead body of the deceased and taken into possession vide memo. Exh. P.F. One safety razor blade P.12, a cash memo. P. 13 relating to the utencils bought and some cash, which were on the person of the deceased, were also taken into possession by the police vide recovery memo. Exh. P . G . These recoveries were witnessed by Shabbir P.W. 7, Muhammad Ishaque, S.I. P.W. 10 and Muhammad Aziz (won over P.W.).
4. On 27-1-1976 at 4-00 p.m. Dr. Mushtaq Ahmad P.W. 1, conducted the post-mortem examination on the dead body of Muhammad Ijaz, deceased, and found 10 incised wounds on different part of the dead, face and neck of the deceased, 7 incised wounds or. the fingers of the right and left hand the palm and the back of the left and right hand and one incised wound on the right side of the abdomen. One incised wound which was 8" x 2" on the front of neck, was found to be fatal as the same had cut the left and right carotid blood vessels, trachea and oesophagus. This injury was held to be sufficient to cause death in the ordinary course of nature. The time between injuries and death was opined to be immediate and that between death and post-mortem between 20 to 22 hours. The possibility that different kinds of sharp-edged weapons were used in the occurrence, was not ruled out by the doctor. The doctor also could not rule out the possibility that the injuries suffered by the deceased could be the result of one weapon. In cross-examination, the doctor admitted that post-mortem staining usually subsisted till. about 18 hours after death and in view of the posi-mortem staining present on the dead body of the deceased at the time of examination, the possibility that the deceased had met his death between 18 to 19 hours before the examination could not be ruled out. However, earlier he had said that there was no post-mortem staining, which contradicts his opinion.
5. On 11-2-1976, Muhammad Irshad, accused, was arrested by Muhammad Ishaque, Sub-Inspector P.W. 10. On 17-2-1976, Muhammad Ishaque, accused led to the recovery of blood-stained Khanjar P. 14 from the Dera of one Ghulam Shah, which was taken into possession by the police vide memo. Exh. P.H. in the presence of Muhammad Ashraf P.W. 8, Muhammad Ishaque, S.I. P.W. 10 and Waryam (won over P.W.). After completing the necessary investigation, the challan against Muhammad Ishaque, accused, was sent up. The complainant also, in the meantime, submitted a private complaint against all the three accused in respect of the same occurrence.
6. At the trial, the prosecution produced Muhammad Idrees P.W. 5 and Muhammad Hanif P.W. 6 in proof of the motive and the ocular account, Shabbir P.W. 7 in respect of Waj Takkar account, Shabbir P.W. 7, Muhammad Ashraf P.W. 8 and Muhammad Ishaque S.I. P.W. 10 in support of the recoveries and Dr. Mushtaq Ahmad P.W. 1 to prove the post-mortem examination conducted on the dead body of the deceased.
7. All the accused denied all the allegations levelled against them and imputed their false implication due to enmity.
8.The learned trial Judge held that motive stood proved against Muhammad Ishaque, accused, but not against Irshad and Jabbar, accused. As regards the ocular account, the learned trial Judge held that Muhammad Idrees P.W. 5 and Muhammad Hanif P.W. 6 were present at the spot and saw the occurrence, but could only identify Muhammad Ishaque, accused, giving injuries to the deceased alongwith the other companions, who were also armed with knives. Out of abundant caution, the learned trial Judge held that it was necessary to look for some independent corroboration in addition to their statements and finding the recovery of blood-stained Khanjar P. 14 proved by the evidence of Muhammad Ashraf P.W. 8 and Muhammad Ishaque, S.I. P.W.10 and the medical evidence furnished by Dr. Mushtaq Ahmad supporting the prosecution version, the learned trial Judge held that the case against Muhammad Ishaque, accused, stood proved beyond any shadow of doubt, but that as against Irshad and Jabbar, accused, was doubtful. He, therefore, convicted and sentenced Muhammad Ishaque, accused, as stated above, but acquitted Muhammad Irshad and Abdul Jabbar, accused.
9. We have heard arguments of the learned counsel for this appellant 'the complainant and the State and have perused the record, i The evidence as regards motive has been furnished by Muhammad Idrees P.W. 5 and Muhammad Hanif P.W.6. The story as regards motive has already been given in the brief facts it para. 2 and need not be repeated again. The said testimony was believed by the learned trial Judge as furnishing a strong motive for Muhammad Ishaque appellant. The findings of the learned trial Judge have not- been challenged by the learned counsel for the appellant. The motive stands established from the testimony of these two witnesses and we have no reason to differ from the findings of the trial Judge in that respect.
10. The ocular account in the case is furnished by Muhammad Idrees P.W. 5 and Muhammad Hanif, P.W. 6. The former is the real brother of the deceased whereas the latter's nephew, Raunaq, is married to Mst. Naseem, daughter of the deceased. Muhammad Aziz, who.' happened to be the husband of a niece of the deceased, was given up at the trial as having been won over. Muhammad Idrees P.W. 5 was returning from Arifwala with the deceased after having made some purchases for the marriage of his daughter; when after alighting from the bus at Jewan Shah bus stop and proceeding towards their Chak, the deceased was assaulted by Muhammad Ishaque, appellant and Muhammad Irshad and Abdul Jabbar, acquitted accused, about two squares from the Bus Adds. Muhammad Hanif P.W.6 with Muhammad Aziz (won over P.W.) had also returned from Arifwala and having alighted at the bus stop of Jewan Shah were proceeding towards their Chak, when they heard the alarm of the deceased and saw the incident about 2/3 squares from the bus stop. According to the testimony of these two witnesses at the trial. Muhammad Idrees P.W. 5 and Muhammad Ijaz were proceeding ahead of Muhammad Hanif P.W. 6 and Muhammad Aziz (won over P.W.) by 20/30 spaces. According to Muhammad Idrees P.W.5, the time when they were returning from Arifwala was about 5-00 p.m., whereas according to Muhammad Hanif P.W.6 he and his companions were returning from Arifwala a little before sunset. According to Muhammad Idrees P.W.5, when they had reached a distance of two squares from the bus stop at Chak Jewan Shah, he entered a nearby field in order to answer the call of nature and his brother Muhammad Ijaz, deceased, was proceeding ahead, when all of a sudden, he heard hue and cry raised by his brother and ran in the direction of his brother and found that Muhammad Ishaque, appellant and Muhammad Irshad and Abdul Jabbar, acquitted accused, all three of them who were armed with knives, giving knife blows to his brother Muhammad Ijaz, deceased. Muhammad Hanif P.W. 6 corroborated the version by stating that when he and his companions Abdul Aziz (won over) heard the alarm, they ran to the place of occurrence and saw the appellant and the two acquitted accused giving knife injuries to the deceased. Both of them stated that Ijaz, deceased, was felled on the ground with his face upward and that Muhammad Ishaque, appellant, cut his throat with his knife, thus killing the deceased on the spot, whereafter all the three ran away with their respective weapons. According to their testimony, Muhammad ldrees P.W.5 left for the police station, leaving behind Muhammad Hanif P.W.6 and Abdul Aziz (won over P.W.). Muhammad Hanif P.W.6 further submits that about half an hour thereafter, one Shabbir P.W.7 came to the spot, enquired from them about the occurrence, to whom they narrated the story, whereupon Shabbir P.W.7 told them that he had seen the appellant and the two acquitted accused near Adds Jewan Shah a short time earlier. In cross-examination , Muhammad Idrees P.W.5 had to admit that he had affixed his thumb-impression on the F.I.R. Exh. P.C. in which he had not given the names of Muhammad Irshad and Abdul Jabbar, acquitted accused, as the assailants, but rather had stated that he could not identify them as they had muffled their faces. However, he admitted that he had named the appellant and the two acquitted accused before the Sub-Inspector, but the F.I.R. Exh. P.C. was not read over to him, though he thumb-marked it. He further admitted in cross-examination that he and his brother made repeated applications to the higher authorities against the Investigating Officer to get the appellant and two acquitted accused challaned, but admitted that he was not in possession of the copies of any of the applications made by them to the Superintendent of Police nor could remember their dates. He also admitted that no higher police officer had visited the spot in connection with the investigation of the case. He denied making the supplementary statement Exh. D.A. before the Investigating Officer stating therein that as he had suspicion only against Muhammad Irshad and Abdul Jabbar, acquitted accused, he had named them in the F.I.R. as companions of Muhammad Ishaque, appellant, but when confronted with the said statement it was found so recorded therein. In cross-examination he admitted that he left the spot two to two and a half hours after the occurrence for lodging report at the police station, which was 6 miles from the place of occurrence. Muhammad Hanif P.W.6, in cross-examination denied that Raunaq was his real nephew and that Siddique was his real brother, but admitted that Raunaq was married to a daughter of Muhammad Ijaz, deceased. He was confronted with his statement Exh. D.B. recorded under section 161, Cr.P.C., to show that he had not stated therein that Jabbar, acquitted accused, had felled the deceased on the ground or that Muhammad Ishaque, appellant, had cut the deceased's throat or that Irshad and Jabbar, acquitted accused, gave knife blows to the deceased or that he and Abdul Aziz (won over P.W.) had travelled in the same bus with Muhammad Idrees P.W. 5 and Muhammad Ijaz, deceased, and got down together at Adds Jewan Shah or that Idrees (P.W.5) proceeded ahead of him and his companion by 20/30 Karams, all of which statements he had made at the trial. He was also confronted with his statement made on 27-5-1977 before the Investigating Officer, wherein he had not stated that Muhammad Ishaque, appellant, had sent a proposal for marrying Mst. Parveen to the deceased through him or that the appellant and the two acquitted accused had given knife blows to Ijaz deceased, though these facts were mentioned by him at the trial. In cross-examination he stated that he did not tell the Sub-Inspector that Shabbir (P.W.7) had told them about having seen the appellant and the two acquitted accused near Adda Jewan Shah after the occurrence, when lie had narrated the incident to him, as all the witnesses were present there and that it was incorrect to suggest that he was introducing Shabbir P.W.7 for the first at the trial, because he was a witness in the complaint case. He categorically admitted in cross-examination that he and Aziz (won over P.W.) did not travel from Arifwala to Adda Jewan Shah in the same bus with Idrees (P.W.5) and Ijaz deceased and got down together at the same time. According to him, he and his companion got down later at the same bus stop and when the were proceeding towards their Chak he saw the deceased and Idrees P.W. 5 going ahead of them at a distance of 25/30 Karams. It cannot be denied that when the Investigating officer went to the spot, he recovered utensils and other articles which were lying at the spot. This indicates that both 1luhammad Idrees P.W. 5 and Ijaz deceased had gone to Arifwala to make purchases and were returning together, when the occurrence took place. The purchase were made in respect of the marriage of daughter of Idrees P.W.5. His presence with the deceased appears to be natural. Muhammad Hanif P.W.6, was also returning from Arifwala at about the same time. His name was also recorded in the F. I. R
Exh. P.C. Nothing appears on the record to suggest that he was not present. We would, therefore, hold that both the eye-witnesses were present at the time of incident. However, cannot help but observe that both the eye-witnesses made material improvements at the trial compared to their case as originally set up in their statements before the police recorded on the date of incident. Both the eye-witnesses are related to the deceased. Idrees P.W.5 is also inimical to Ishaque, appellant, as a case under section 307/34, P.P.C., had been lodged against him and his deceased brother at the instance of Ishaque, appellant. Both the witnesses have improved upon the story as initially set up. Idrees P.W.5 in his F.I.R. Exh. P.C. only mentioned the name of Ishaque, appellant and referred to two others who had muffled their faces also as the assailants. Within a few hours of the occurrence he gave statement Exh. D.A., wherein he excluded the presence of the two assailants who had muffled their faces. Muhammad Hanif P.W. 6 in his police statement Exh. D.B. also referred to Muhammad Ishaque, appellant as a sole assailant. Later, at the trial both these witnesses referred to Muhammad Ishaque, appellant and Muhammad Irshad and Abdul Jabbar, acquitted accused, as the assailants. At the trial it was urged that the story at the trial was initially stated by Idrees P.W.5 to the Investigating Officer when having his F.I.R. Exh. P.C. recorded but the Investigating Officer did not record the true facts. If this being the case, the complainant party would have pulled down the heavens by filing applications against the Investigating Officer With the Deputy Superintendent of Police or the Superintendent of Police of the district concerned and would have moved for the transfer of the investigation, but no questions were put to the Investigating Officer to show that Idrees P.W.5 had given him the names of the three assailants as the persons who had attacked the deceased with knives, or that he had recorded the F . I . R . Exh. P.C. falsely by omitting names of two of the assailants and referring to the fact that they could not be identified as they had muffled their faces or that he had falsely recorded the supplementary statement Exh. D.A. of Idrees P.W. 5, which statement he had never made, or that he had failed to mention the name of Shabbir P.W. 7 Wajtakkar witness in the statement of Muhammad Hanif P.W.6, though he was present at the spot or that a number of applications were made against him to the Deputy Superintendent of Police or the Superintendent of Police, complaining against his conduct or that any of the said officers had come to the spot for verification of investigation due to the complaints lodged. The fact that Idrees P.W.5 admitted in cross-examination that he was not in possession of the copies of any of the applications made by them to the Superintendent of Police or could remember their sates and that no higher police official had visited the spot in connection with the investigation of the case, shows that the complainant party had no grievance against the investigations but that later, at the time of filing the complaint they had decided to improve, upon their case. Considering that the initial case set up by Idrees P.W. 5 in his F.I.R. Exh. P.C. shows that two of the assailants had muffled their faces, the possibility that the third, whose name was given as Muhammad Ishaque, appellant, had also muffled his face, cannot be ruled out. In short, in view of improvement made to the story, as initially set up, the witnesses require 'corroboration. In these circumstances, we would hold that the testimony of the eye-witnesses cannot be accepted without corroboration.
11. Corroboration in the instant case is sought from the testimony of Muhammad Ashraf P.W.8 and Muhammad Ishaque, Sub-Inspector, P.W. 10 who witnessed the recovery of blood-stained Kharnjar P. 14 at the instance of the appellant on 17-2-1976 and the testimony of Shabbir P.W. 7 Waj Takkar witness, who is stated to have seen the appellant and the two acquitted accused at Adda Jewan Shah immediately after the occurrence. The recovery of the blood-stained Khanjar P. 14 was made on 17-2-1976 on the last date when the physical remand was to expire. The witnesses to the recovery are Muhammad Ashraf P.W. 8, Muhammad Waryam (won over P.W.) and the Investigating Officer, Muhammad Ishaque P.W.10. Both Muhammad Ashraf P.W.8 and Waryam (won over P.W.) were Qaumi Razakars and admitted that they regularly assisted the police in investigation and the Investigating Officer also admitted this and the fact that he had taken Waryam (won over P.W.) from the police station to the spot on the day of occurrence, through the noting under "police karwai" recorded below the F.I.R. Exh. P.C. shows that Muhammad Ashraf P.W. 8 was so taken. The recovery of the blood-stained Khanjar P. 14 was made on the last date when the physical remand was to expire. Stock police witnesses were used to witness the recovery. The evidence of Muhammad Ashraf P.W.8 and Muhammad Ishaque, Sub-Inspector P.W. 10 does not inspire confidence. We, therefore, reject their testimony with regard to the recovery of the blood-stained Khanjar P.14. As regards the Waj Takkar witness Shabbir P.W.7, his appearance at the spot immediately after the occurrence appears to be doubtful. According to Muhammad Idrees P.W.5, the occurrence took place some time after 5-00 p. m. and he remained at the spot from two to two and a half hours, before proceeding to the police station to lodge the report. According to Muhammad Shabbir P.W. 7 he saw the appellant and the two acquitted accused at Adda Jewan Shah at about evening time. He was returning from his Chak and near Chah Reriwala he met Muhammad Hanif P.W. 6 and Abdul Aziz (won over P.W.) near the dead body of Muhammad Ijaz, deceased. Here he exchanged notes with Muhammad Hanif P.W.6 and his companion and informed them of having seen the appellant and the two acquitted accused near Adda Jewan Shah. According to his testimony, he should have been present at the spot pretty soon after the occurrence. If so, he should have met Idrees P.W.5, whereas, according to his testimony, Idrees P.W.5 was not there and did not return till 10-00 p.m. when he came with the police. But assuming that he was there, as stated, and the Investigating Officer saw him, it is strange that his presence was not mentioned in the statement Exh. D. B. of Muhammad Hanif P.W.6 recorded by the police at the spot. All these facts show that he appears to be a planted witness. His testimony, therefore, cannot be accepted with any degree of credibility.
12. The evidence of Dr. Mushtaq Ahmad P.W. ' 1 shows that Muhammad Ijaz suffered as many as 18 wounds on various parts of his body, mostly on the head, face, neck and on the fingers of both his palms. The doctor did not rule out the possibility that either one kind or different kinds of sharp-edged weapons were used in,, the occurrence. The deceased appears to have been assaulted by at east more than one person, but how many they were, it is difficult to B assess. However, the medical testimony by itself does not offer the necessary corroboration which we are looking for to show that Muhammad Ishaque, appellant, did participate in the occurrence. In these circumstances, the medical testimony cannot be accepted as good corroboration against Muhammad Ishaque, appellant, showing his participation.
13. The upshot of the above discussion is that though the motive stands proved and ocular testimony has been accepted, subject to corroboration, there is no independent corroboration available to connect the participation of Muhammad Ishaque, appellant with the crime. In these circumstances, the appellant is entitled to the benefit of doubt.
14. For the foregoing reasons, we accept this appeal and set aside the conviction and sentence of Muhammad Ishaque, appellant under section 302, P.P.C. He shall be released forthwith if not required in any other case. The sentence of death is not confirmed. Fine, if any recovered from the appellant, shall be refunded to him.
15. We have also heard the learned counsel for the complainant in support of the revision petition. There being no merit in his case, the revision petition (Criminal Revision 761/80) is dismissed in limine.
S. G . D Appeal accepted.
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