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Criminal Appeal No.465 and Murder Reference No.196 of 1984, decided on 2nd June, 1987.

---Ss.302, 148 & 149--First information report not a genuine document--F.I.R. completed at two different places which suggested that it was drawn after preliminary inquiry and prolonged deliberations between members of complainant party and police--Eye-witnesses account brought on record by prosecution not at all trustworthy- Presence of eye-witnesses at spot extremely doubtful--Witnesses told a changed story at trial which suggested that they had not actually seen occurrence--Glaring conflict existing in medical and ocular testimony--Recovery of weapon of offence not free from doubt- Prosecution, held, failed to bring home charge of murder against accused beyond reasonable doubt--Conviction and sentence set aside in circumstances.

Ch. Muhammad Anwar and Zafar Iqbal Chaudhry for Appellants.

Sadiq Hayat Lodhi for A.A.-G. for the State.

Dates of hearing: 1st and 2nd June, 1987.

--Criminal Appeal No.465/1984 and Murder Reference No.196/1984 have arisen from the judgment of Additional Sessions Judge, Kasur, dated 17-5-1984, whereby Muhammad Sarwar, Abdul Ghafoor, Manzoor, Hakim Ali, Muhammad Ramzan and Nazir Ahmad have been convicted under sections 148 and 302 read with 149, PPC. Learned trial Court awarded death sentence to Muhammad Ramzan and Nazir Ahmad appellants and imprisonment for life to the rest plus fine of Rs.2,000/- or in default to one year's rigorous imprisonment to all of them for committing the murder of Bagh Ali (deceased). They were further sentenced to 2 years' rigorous imprisonment each under section 148/149, PPC. We propose to dispose of both the aforesaid matters by this single judgment.

2. The occurrence took place on 25-6-1982 little before sunset in the sugarcane field of Safdar Hussain Shah near Dingi Nala, village Ghamb, in the jurisdiction of Police Station Chunian, district Kasur. Report in this case was made by Mst. Zainab (PW.9) wife of Bagh Ali deceased at Adda Nurpur to SI Abdul Shakoor SHO Police Station Chunian (PW.12) the same day at 8-45 p.m., through statement Ex. PC. On the basis of this statement formal FIR Ex.PC/1 was drawn up by HC Ikhtiar Hussain (PW.4) at 9-20 p.m., at Police Station Chunian, about 7 miles away from the place of occurrence.

3. The prosecution case as set up by the complainant Mst. Zainab (PW.9) in her statement Ex.PC was that Syed Ehsan Ali Shah owned agricultural land in village Ghamb at a distance of half a mile from village abadi. Her husband Bagh Ali (deceased) was employed by said Ehsan Eli Shah at his tubewell. On the fateful day little before evening time she alongwith her husband was carrying food and tea for delivering it to Ali 11iffat son of the aforesaid Ehsan Ali Shah for breaking his fast at the tubewell. Her son Muhammad Aslam alias Achhu (PW.11) and Muhammad Sharif (PW.10) her husband's nephew, were following them at some distance as they were to guard the melon crop during the night at that tubewell. When they reached on the bank of Dingi Nala the appellants suddenly emerged from the Nala carrying hatchets and confronted .them. Sarwar appellant shouted that Bagh Ali deceased would not be spared. At this the deceased ran back to save his life, but the appellants chased him and overtook him in the sugarcane field belonging to one Safdar Hussain Shah. Sarwar opened the attack giving a hatchet blow on his forehead as a result of which he fell down. Muhammad Ramzan, Nazir Ahmad and Hakim Ali appellants then inflicted hatchet blows on his neck, while Manzoor and Abdul Ghafoor appellants broke his right and left-knees respectively with hatchet blows. Then Sarwar, Ramzan, Nazir and Hakim Ali gave further injuries on his abdomen and head. She raised alarm, which attracted Muhammad Aslam and Muhammad Sharif PWs. to the spot. The appellants then decamped from the scene, raising lalkaras. Motive for the attack was stated to be that about 6 years earlier, Anwer, Ramzan, Manzoor and his father Manna, etc., had broken the leg of the deceased and were challaned in that case, which was pending decision during the days of occurrence. Two years after that incident, the deceased and his relatives murdered Yousaf, a brother of Sarwar and Ramzan appellants, and were acquitted a year later and that in order to avenge the murder of Yousaf, the appellants had murdered the deceased.

4. SI Rana Abdul Shakoor (PW.12), having recorded the statement Ex.PC of the complainant Mst. Zainab, sent it to the police station for registration of the formal FIR and he himself proceeded to the spot, reaching there at 9-30 p. m. He inspected the spot, collected blood-stained earth from there and preparing the inquest report Ex.PG of the deceased, sent the dead body under police escort for post-mortem examination. He arrested Sarwar, Ramzan, Manzoor, Ghafoor and Nazir appellants on 27-6-1982 and Hakim Ali appellant on 2-7-1982. On 4-7-1982 Hakim Ali, Sarwar, Ramzan alias Jani, Manzoor, Ghafoor and Nazir appellants had got recovered by individually pointing out the blood-stained hatchets P.3, P.6, P.7, P.8, P.9 and P.10 respectively, which were sealed and seized under separate memos. Exs.PD, PJ, PK, PL, PM and PN. Hatchet P.3 was recovered from Sarai Mughal and its memo. was attested by Muhammad Ishaq (PW.5) and Muhammad Shafi PW (not produced). Hatchets P.6 to P.9 were recovered from Mauza Tilvandi and their memos were attested by Isan Khan (DW.3) and Sumair Khan (PW.6): Hatchet P.10 was recovered from Nurpur Jattan and its memo was attested by Amir Ali (DW.1) and Qadar Bakhsh (DW.2) besides SI Rana Abdul Shakoor (PW.12). The blood-stained earth, as well as hatchets P.3, P.6 to P.10, were found to be stained with human blood, vide Chemical Examiner's report Ex.PU and Serologist's report Ex.PV.

5. Dr. Muhammad Rafi Chaudhry (PW.7) on 26-6-1984 at 11-30 a.m., conducted post-mortem examination on the dead body of Bagh Ali deceased and found following injuries on it:-

(1) An incised wound 3 cm x 3 cm bone deep on the right side of the forehead.

(2) Incised wound 14 cm x 3 cm bone deep on the left side of the head on the parietal region. The underline bone cut on its outer side.

(3) An incised wound involving the right side of neck starting below the chin running to he side of head to the mastoid bone. All the muscles, blood vessels and vertebra under this wound were cut.

(4) An incised wound involving the right side of neck, starting below the chin running to "he middle of neck lower down to the root of neck. All the muscles, blood vessels and 4th and 5th cervical vertebra cut alongwith the spinal cord.

(5) Stab wound 3 cm x 3 cm on the right abdomen below the costal margin.

(6) Stab wound 2 cm x 3 cm on the right abdomen 5 cm below to injury No.5.

(7) An incised wound on outer side of right knee and lower leg both the bones tibia and fabula cut.

(8) An incised wound on the front of left leg below the knee. Both the bones tibia and fabula cut.

(9) An -incised wound 2 cm x 1 cm muscle deep on the back of left forearm in the middle.

In the opinion of the doctor the death had occurred due to shock and haemorrhage produced by injuries Nos.3, 4, 7 and 8. All the injuries were ante-mortem. Injuries Nos.1, 2, 3', 4, 7, 8 and 9 were caused with sharp-edged weapon and injuries No-.5 and 6 with sharp-edged pointed weapon. These injuries were sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination about 24 hours. The stomach contained 3 ounces of semi-digested food.

6. At the trial, the prosecution examined 12 witnesses in support of its case, of whom Mst. Zainab complainant (PW.9), Muhammad Sharif (PW.10) and Muhammad Aslam (PW.11) are the eye-witnesses, while Muhammad Ishaq (PW.5), Sumair Khan (PW.6) and SI Rana Abdul Shakoor (PW.12) deposed about the incriminating recoveries. Dr. Muhammad Rafi Chaudhry (PW.7) proved that Bagh Ali deceased had' died of violence. When examined under section 342, Cr.P.C., the appellants denied the allegations of murder and recoveries of hatchet from them and explained that their relative Yousaf was murdered by the deceased and others, whereafter they abandoned their residence in village Ghamb, due to fear of the deceased, and that Bagh Ali's widow had falsely involved them in his murder. They produced 3 DWs, namely, Amir Ali (DW.1), Qadir Bakhsh (DW.2) and Isan Khan (DW.3), who were recovery witnesses of hatchets from them, but were given up by the prosecution. The former two DWs stated that their signatures were obtained by the police on blank papers and that hatchet P.10 was not recovered in their presence from Nazir Ahmad appellant. Similarly, Isan Khan (DW.3) stated that his thumb impression was obtained on blank paper and that no weapon (hatchets P.6 to P.9) was recovered in his presence from Sarwar, Ramzan, Manzoor and Ghafoor appellants.

7. Learned trial Court on consideration of the material on record in paragraph 9 of its judgment disbelieved Muhammad Sharif (PW.10) and Muhammad Aslam (PW.11), who claimed to be present at the relevant time and seen the occurrence. It, however, accepted the testimony of Mst. Zainab (PW.9) and relying on her statement, the recovery of blood-stained hatchets effected from the appellants and the evidence of motive, held all the appellants guilty on both the charges and sentenced Muhammad Ramzan and Nazir Ahmad appellants to death, for they were found to have "decisively performed the role of causing death of Bagh Ali deceased" and the rest were given lesser penalty of imprisonment for life, as they had inflicted injuries on non-vital parts of the body of the deceased.

8. Learned counsel for the appellants has argued that the solitary statement of the complainant Mst. Zainab (PW.9), wife of the deceased, relied upon by the trial Court does not furnish safe and sufficient basis for convicting the appellants on capital charge. According to him, her testimony conflicts with medical evidence, therefore, it must be discarded. Further, argued that the recovery of weapons of offence allege effected from the appellants too was not established beyond reasonable doubt because Amir Ali, Qadir Bakhsh and Isan Khan, the recovery witnesses, having appeared in defence denied recovery of hatchets in their presence from the appellants, therefore, the trial Court erroneously treated the same as corroborative evidence. On the other hand, learned counsel for the State has supported the conviction and also the sentence awarded to the appellants as being appropriate and quite justified.

9. Prosecution's mainstay is the ocular testimony comprising Mst. Zainab (PW.9), Muhammad Sharif (PW.10). and Muhammad Aslam (PW.11), who are the wife, the nephew and the son of the deceased respectively. It is not denied that there existed bad blood between the parties prior to the occurrence. Learned State counsel submitted that Muhammad Sharif (PW.10) and Muhammad Aslam (PW.11) have been erroneously disbelieved by the trial Court and that he relies on their evidence besides that of Mst. Zainab complainant (PW.9). So the question for determination in this case is whether the aforesaid eye-witnesses were present at the relevant time and that the occurrence had taken place in the manner as narrated by them

10. Mst. Zainab complainant (PW.9) stated before the trial Court that her husband (deceased) was employed by Ehsan Ali Shah at his tubewell. On 3rd of holy month of Ramazan at about Maghrib Azaan time, she alongwith her husband was going to the tubewell of Ehsan Ali Shah for delivering "Iftari", i.e., food and tea for breaking fast to Faiz, a nephew of said. Ehsan Ali Shah. When they reached about 8/10 killas away from the village and passed through the tubewell of Bholey Shah, there came Sarwar appellant who raising a lalkara delivered a hatchet blow on the head: of the deceased. Ramzan, Ghafoor Hakoo and Nazir appellants grappled with him and felled him down. Then Ramzan and Nazir cut off his neck with hatchet blows, while the remaining appellants inflicted blows on his legs. At that time, no body, excepting herself, was present there. She tried to rescue the deceased, but had fallen down and became semi-unconscious. She however got up and lay on the deceased. Muhammad Aslam her son and Muhammad Sharif her husband's nephew (PW.11/PW.10), who were guarding water-melon field at the aforesaid tubewell, came to the spot from there and raised lalkara, whereupon the appellants decamped. Her clothes were stained with blood. She did not show those clothes Jo the police. The, tea pot, "chapatis" and "salan" fell on the spot. Jamil Shah reported the incident to the police, who arrived there at 10 p.m. Her statement (EX.PC) was recorded by the police partly at the tubewell of Jamil Shah and partly at the police station. She asserted that her utensils which had fallen on the spot at the time of occurrence were recovered by the police. Muhammad Sharif PW nephew of her husband lived in village Blair (25/26 miles away) and had come to see them 2/3 days before the commencement of the month of Ramazan. She said that the accused party had abducted the sister-in- law of Bagh Ali deceased, therefore, she had grudge against them. She denied to have stated in the FIR (Ex.PC) that at the time of occurrence they were taking Iftari for Ali Riffat son of Ehsan Ali Shah. She also denied to have stated in the FIR (Ex.PC)-that at the time of occurrence her son Muhammad Aslam and nephew Muhammad Sharif were following them towards the tubewell of Ehsan Ali Shah as they were to keep guard of water-melon field at night. The witness was confronted with Ex.PC, wherein both these facts were found recorded. She asserted that the deceased was not keeping fast on the day of occurrence and had taken meals about 15/20 minutes before the time of breaking of fast, i.e., the time of occurrence.

11. Muhammad Sharif (PW.10) nephew of the deceased stated that he lived in village Blair 25/26 miles away from the place of occurrence. He came to see his uncle (deceased) on 7th/8th of the month of Ramazan and -stayed with him in the village. The occurrence took place three days after his arrival. On the fateful day at 12 noon he alongwith Muhammad Aslam son of the deceased (PW.11) went to the tubewell of Ehsan Ali. Shah for keeping guard of water-melon field. At about fast-breaking time they were present at the tubewell of Ehsan Ali Shah when they heard hue and cry and rushed towards Dingi Nala. While running towards the Nala they saw the appellants giving hatchet blows to Bagh Ali deceased. The deceased and Mst. Zainab complainant were bringing meals for Riffat Shah to the tubewell at the time of occurrence and were waylaid by the appellants. They raised lalkara, whereupon the appellants had decamped. They saw Mst. Zainab lying unconscious on the spot. He stated that the appellants had abducted his aunt Mst. Amina (sister of the deceased) 2/3 years before the occurrence and on this account were jailed and for this reason they had attacked and killed the deceased. They called Jamil Shah, who sent a man to inform the police. The police arrived at 11 p.m. He admitted that Jamil Shah and the deceased were challaned for the murder of Yousaf, brother of Sarwar appellant.

In cross-examination he stated that his aunt (Mst. Amina) was not abducted by the appellants, but they had misbehaved with her and on this account he had grudge against the appellants. The dead body of deceased was taken to Jamil Shah's tube-well which is 4 killas away from the place of occurrence and kept there during the night. It was removed to the hospital next morning. He denied to have stated during investigation in his police statement (Ex. DA) that Bagh Ali (deceased) had murdered Yousaf, a brother of Sarwar appellant, and the appellants murdered him in retaliation, but it was found so recorded in Ex.DA. He denied to have stated in his police statement (Ex.DA) that they were following the deceased and Mst. Zainab who at the time of occurrence were going towards Ehsan Ali Shah's tubewell for delivering "Iftari" to Ali Riffat Shah and that near Dingi Nala the appellants waylaid the deceased and killed him with hatchets in their presence, but on confrontation with Ex. DA it was found so recorded, but the story that they came to the spot from Ehsan Ali Shah's tubewell on hearing alarm does not find mention therein.

12. Almost similar statement was made by Muhammad Aslam (PW .11). He stated that due to hatchet blows the neck of the deceased had been separated from his body. Boota Chaukidar went to inform the police. The deceased neither quarrelled with nor injured Taj Ali Jhabail, Jan Muhammad Kumhar, Abdul Rahman, Ghulam Bari and a school teacher of Nurpur. He admitted that while going from the village to Ehsan Ali Shah's tubewell one would first pass through the tubewell of Safdar Shah, then tubewell of Jamil Shah and then come to Dingi Nala (the place of occurrence). He further stated that tubewell of Safdar Shah is 10/12 acres away from the village and Ehsan Ali Shah's tubewell is 8/10 killas away from Safdar Shah's tubewell. The water-melon field which was being looked after by him at the time of occurrence was cultivated by them, but this fact was not recorded in Khasra Girdawari. He stated that the police took away the dead body of Bagh Ali to Jamil Shah's tubewell, where his statement was recorded by the police at 12-30 p.m., then Muhammad Sharif's statement was recorded and thereafter his mother Mst. Zainab's (complainant's) statement was recorded and her thumb-impression was obtained on Ex.PC (FIR) in his presence. He was confronted with his police statement (Ex. DB) wherein the story that the witness having heard alarm came from Ehsan Ali Shah's tubewell and saw the occurrence was not mentioned and instead thereof it has been recorded that he (witness) was following the deceased and the complainant who were going from the village to Ehsan Ali Shah's tubewell and in their presence the appellants waylaid the deceased and killed him near Dingi Nala.

13. From the above resume of ocular testimony, it is quite clear

that the FIR Ex.PC made by Mst. Zainab (PW.9) was partly recorded at the tubewell of Jamil Shah and partly at the police station and not at Adda Nurpur, as mentioned by SI Rana Abdul Shakoor (PW.12). The completion of FIR at two different places suggests that it was drawn up after preliminary inquiry and prolonged deliberations between the members of the complainant party and the police. It is, therefore, not a genuine document. It is worth noting that the appellants have strained relations with Jamil Shah at whose tube-well the police had taken the witnesses and the dead body, where the FIR as well as the statements of the P.Ws. were recorded. It is admitted that it was Jamil Shah or Boota Chowkidar who informed the police about the murder of the deceased. Why Muhammad Aslam son of the deceased and Muhammad Sharif nephew of the deceased, who claim to have been present at the time of occurrence, did not go to the police for report, is a question for which there is no explanation, muchless a reasonable explanation available on record. It, therefore, makes their presence at the spot at the relevant time extremely doubtful.

14. According to Mst. Zainab, she lay on the body of the deceased and became semi-unconscious, but Muhammad Sharif and Muhammad Aslam PWs stated that when they reached, they saw her lying unconscious at a distance of few karams away from the deceased. In the FIR Mst. Zainab stated that she, with her deceased husband, was taking Iftari of Ali Riffat Shah to the tubewell, but at the trial she said, it was Iftari for Faiz. No utensils in which Iftari was allegedly being carried were found lying on the spot. The prosecution case set up in FIR as well as during investigation was that Muhammad Sharif and Muhammad Aslam (PW.10/-PW.11) were following the complainant and the deceased towards Ehsan Ali Shah's tubewell at the time of occurrence, but at the trial they changed the version saying that they had gone to the tubewell at 12 noon and were present guarding the water-melon field and hearing alarm from Dingi Nala they came to the scene and saw the appellants killing the deceased with hatchets. There is no allegation against the Investigating Officer that he under the influence of the appellants had recorded incorrect version of the complainant and her witnesses in order to damage their case. They did not raise their little finger complaining that investigation was partial. No private complaint disowning the prosecution story set up in the FIR was filed either. The changed story told at the trial by the eye-witnesses thus suggests that they had not actually seen the occurrence, as liars have no memory.

15. Ehsan Ali Shah's tubewell, according to Muhammad Sharif PW, is about 5 acres away from the spot and according to Muhammad Aslam PW it is about 10 acres away. If the eye-witnesses were present at such a long distance, then it was not possible for them to have reached the spot on hearing the alarm and seen the infliction of the injuries to the deceased, because the assailants, whosoever they were, would have completed their job and left before their arrival. Again, according to Muhammad Sharif PW, the occurrence took place on 10th of Ramazan, while according to the complainant it was 3rd of Ramazan, which is irreconcilable. They are also wrong in saying that the neck of the deceased had been cut off and separated from the dead body.

16. Apart from improbabilities and inconsistencies mentioned above, we have noticed a glaring conflict in medical and ocular testimony, which affects the truth of the ocular account, i.e. Mst. Zainab complainant stated that the deceased was not fasting on the day of occurrence and had taken his meals about 15/20 minutes before the occurrence, but the doctor found semi-digested food in his stomach, which means that he took his last meals at least 3/4 hours before lie met his death. Furthermore, injuries Nos.5 and 6 found on the abdomen of deceased according to eye-witnesses were inflicted by the appellants with hatchets, but the doctor opined that injuries Nos.5 and 6 were caused with sharp-edged pointed weapon. We have closely examined injuries Nos.5 and 6 and find that they are stab wounds, which could not be caused with a hatchet, as stated by the prosecution witnesses, so they remain unexplained.

17. From what has been stated above, we are of the view that the eye-witness account brought on record by the prosecution is not at all trustworthy and cannot, therefore, be made a safe basis for convicting the appellants on a capital charge. The recovery of weapons of offence as indicated earlier is also not free from doubt, We therefore, find that prosecution has failed to bring home the charge of murder against the appellants beyond reasonable doubt. Consequently, we accept this appeal set aside the conviction and sentence of the appellants and acquit them. The murder reference is rejected. Muhammad Ramzan and Nazir Ahmad, appellants, are directed to be released forthwith, if not wanted in any other case. Muhammad Sarwar, Abdul Ghafoor, Manzoor and Hakim Ali, appellants, are on bail. They are discharged of their bail bonds.

M.Y.H./M-255/L

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