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Criminal Appeal No. 140 and Murder Reference No. 105 of 1982, decided on 19th October, 1986.

--Ss. 302/34, 307/149 & 148--Cross-version--Ocular testimony, appreciation of--Relations between parties admittedly strained- Complainant admitting strained relations with his wife, a relative of accused--Cross-cases registered against each other prior to occurrence, which were still pending in Court--Accused having no direct motive against deceased nor having any immediate motive for commission of crime--Ocular evidence in conflict with medical evidence--Number of injuries on person of deceased not commensurate with number of accused--Lot of improvements made by witnesses to bring their statements in line with medical evidence-- Lathis recovered from accused, not found stained with blood--Three of accused injured on vital parts of body--Plea of accused being attacked first and their having acted in self-defence found apparently reasonably possible--Tainted ocular testimony of eye-witnesses, held, could not be accepted without any corroboration- Medical evidence would not by itself, be sufficient to corroborate tainted ocular evidence and some more circumstance should be looked into- Conviction and sentence set aside in circumstances.

M . B . Zaman for Appellants.

Col. M.A. Rashid for the State.

Kh. Sultan Ahmad for the Complainant.

Dates of hearing: 18th and 19th October, 1986.

Muhammad Ashraf (40), Muhammad Latif (26), Muhammad Azam (38) and Muhammad Zaman (22) sons of Reham Dad, Muhammad Alam (50) and his brother Muhammad Siddique (38) sons of Muhammad Din were tried for the murder of Bashir Ahmad deceased and for murderously assaulting Muhammad Asghar (P.W.6), Muhammad Boota (P.W.7) and Mst. Sughran (P.W.8), with Lathis by the learned Additional Sessions Judge, Gujrat. Vide judgment, dated 3-3-1982 Muhammad Ashraf, Muhammad Latif, Muhammad Azam and Muhammad Zaman appellants were convicted under section 302/34, P.P.C. Muhammad Ashraf and Muhammad Latif were awarded death sentence plus a fine of Rs.2.000 or in default to undergo six months' R.I. Muhammad Azam and Muhammad Zaman were sentenced to imprisonment for life plus a fine of Rs.2,000 or in default to undergo six months' R.I. further. Muhammad Alam and Muhammad Siddique were, however, acquitted of the offence under section 302, P.P.C. by giving them the benefit of doubt. However, they (Muhammad Alam and Muhammad Siddique) alongwith the accused named above were convicted under section 307, P . P . C . read with section 149 , P . P. C . for murderously assaulting Muhammad Asghar, Muhammad Boota and Mst. Sughran P.Ws. and sentenced to two years' R.I. each plus a fine of Rs.1,000 or in default to undergo six months' R.I. further. The amount of fine, if realized, was ordered to be paid to the heirs of the deceased as compensation. Che sentences of imprisonment were ordered to run concurrently.

2. We have before us the appeal filed by the above-mentioned accused as also the connected murder reference as well as the revision filed by Muhammad Asghar P.W. against the acquittal of Muhammad Alam and Muhammad Siddique under section 302, P.P.C. and for the enhancement of the sentences of Muhammad Azam and Muhammad Zaman. These matters are being disposed of by this judgment.

Muhammad Ashraf, Muhammad Latif, Muhammad Azam and Muhammad Zaman are brothers inter se and are' maternal-cousins of Muhammad Alam and Muhammad Siddique.

3. The prosecution case is that about 2 months prior to the occurrence a fight took place between the appellants and Bashir Ahmad deceased for which cross-cases were registered against them. Muhammad Asghar (P.W.6) complainant was married to the daughter of Wali Dad- maternal-uncle of Muhammad Ashraf, Muhammad Latif, Muhammad Azam and Muhammad Zaman, appellants and the relation between Muhammad Asghar P.W. and his wife Mst. Nazir Bibi were strained. The latter obtained an ex parte decree of divorce against Muhammad Asghar P.W.

4. On 25-12-1979 at about 3-45 p.m. Bashir Ahmad deceased and Muhammad Asghar P.W. were proceeding to attend the call of nature and when they passed in front of the house of Wali Dad, they were attacked by the appellants with Lathis. Muhammad Latif appellant raised a Lalkara not to spare the deceased and inflicted Lathi blow on his head. The deceased fell injured. Muhammad Ashraf appellant inflicted Sota blow landing on his head. Muhammad Azam and Muhammad Zaman appellants also injured him with their respective Lathis. Muhammad Alam and Muhammad Siddique accused gave stick blows to Muhammad Asghar (P.W.6). On the alarm, came Muhammad Boota (P.W.7) and Mst. Sughran (P.W.8). They tried to rescue the deceased and Muhammad Asghar P.W. Muhammad Azam and Muhammad Zaman appellants inflicted Lathis blows on Muhammad Boota. Muhammad Azam also caused injuries to Mst. Sughran Bibi. Muhammad Asghar and Muhammad Boota P.Ws. also caused injuries to Muhammad Alam, Muhammad Ashraf, and Muhammad Latif appellants in self-defence. After the occurrence the appellants fled away with their respective weapons. The injured were removed to Civil Hospital, Kharian where they were medically examined. Bashir Ahmad deceased was taken to C . M . H., Kharian and ultimately to Mayo Hospital, Lahore. He succumbed to the injuries on 29-12-1979 at 12-20 p.m. Muhammad Anwar, S.I. (P.W.12) prepared his inquest report Exh.P.O.

On coming to know of the occurrence Mazhar Hussain A.S.I. (P.W.13) reached Civil Hospital, Kharian and recorded the statement Exh.P.A. of Muhammad Asghar P.W. on the same day at 5-20 a.m. and sent the same to P.S. Kharian for the formal registration of the case. Formal F.I.R. Exh.P.A./1 was recorded by Mushtaq Hussain, Moharrir, Head-Constable (P.W.1). Mazhar Hussain A.S.I. arrested the appellants except Muhammad Ashraf on 27-12-1979. Muhammad Azam, Muhammad Ashraf, Muhammad Latif, Muhammad Zaman and Muhammad Alam led to the recoveries of Sotas on 1-1-1980. The respective memos. were attested by Allah Dad (P.W.5) and S.1. Muhammad Anwar (P.W.12). Since the Lathis were not stained with blood, the trial Court did not attach any importance to their recovery. (See para. 26, page 68 of the printed paper book).

5. Lady Doctor Mrs. Faiz Pervaiz (P.W.10) medically examined Mst. Sughran Bibi (30) on 26-12-1979 and found the following injuries on her person:----

(1) Swelling of left wrist.

(2) Bruise on left arm 3" x 3" near wrist. Colour is bluish red.

(3) The patient complained pain in the back.

Injury No. 2 was grievous while the rests were simple. The injuries were caused by blunt weapons.

6. Dr. Zameer Akhtar (P.W.11) examined Bashir Ahmad (30) deceased on 25-12-1979 at about 4-20 p.m. and found the following injuries on his person:

(1) A contused wound 1" x 1/8" situated on top of head.

(2) Three contused wounds " x 1/8", 1 " x 1/8", 3/4" x 1/8" situated on posterior aspect of head.

(3) A contused wound 3/4" x 1/8" situated on left lateral side of head.

(4) A contused wound 3/4" x 1/8" situated on left eye-brow.

Injuries Nos. 1 to 4 were dangerous collectively. The injuries were caused by blunt weapons. He performed the post-mortem examination on the dead body of Bashir Ahmad deceased on 29-12-1979 at about 2-10 p.m. and observed the same injuries as described above.

He also medically examined Muhammad Asghar P.W. and found the following injuries on his person:

(1) A contused wound 1-3/4" x 1/8" situated on the right part of occiput.

(2) A contused wound 1" x 1/8" situated on interior part of head in mid line.

(3) Complained of pain on right wrist.

(4) Complained of pain on left hand.

(5) A contusion 4" x 1" situated on posterior aspect of middle of left forearm.

(6) Complained of pain on left scapula.

All the injuries were caused by blunt weapons and were simple in nature.

He also examined Muhammad Boota P.W. and found the following injuries on his person:

(1) A contusion 1" x 3/4" on top of head, in mid line.

(2) A scabbed abrasion on posterior aspect of middle of left forearm.

(3) Two small abrasions, one on right forefinger and one on right middle finger " x 3/8" x 3/8" x 1/8".

(4) An abrasion " x 3/8" situated on ,outer side of left knee.

All the injuries were simple in nature caused by blunt weapon.

He also examined Muhammad Ashraf appellant on 26-12-1979 and found the following injuries on his person:

(1) A contused wound 1 " x " situated on left part of occiput.

(2) A contusion 2 " x " situated on top of left shoulder extending backwards.

(3) Complained of pain in front of upper part of chest right side.

All the injuries were simple in nature caused by blunt weapon.

He also examined Muhammad Latif appellant and found the following injuries on his person:

(1) A contused wound 1 " x " situated in the centre of occiput.

(2) A contused wound 1" x 1/8" situated on right side of occiput.

(3) A contusion 5" x " situated on the posterior aspect of lower part of right chest.

(4) Complained of pain in lumber spine on the back.

The injuries were simple having been caused by blunt weapon. Muhammad Alam accused was also examined by him and a contused wound 4" x " on the right lateral side of head was found on his person. The injury was simple in nature having been caused by blunt weapon.

7. The appellants denied the prosecution allegations. Muhammad Alam appellant made a detailed statement in this behalf which may be reproduced:----

"Mst. Nazir Begum, my relative was married to Muhammad Asghar P.W. by whom an ex parte decree of divorce was obtained from the Court of law and the relations became disconnected. The complainant party was aggrieved of it. They had attacked Muhammad Latif and Muhammad Zaman my co-accused and a case under section 325/148/149, P.P.C. was registered against Bashir Ahmad deceased, Muhammad Arif brother of Muhammad Asghar P.W., Muhammad Sharif father of Muhammad Asghar P.W. and others. The other party also got a case registered against us as a counter-blast. I was a complainant in the case under section 325, P.P.C. The complainant party wanted me to withdraw the case or to make compromise to which we did not agree and as such on the eventful day Muhammad Boota P.W. alongwith Bashir Ahmad deceased, Muhammad Boota P.W., Muhammad Asif, Muhammad Arif, real brothers of Muhammad Asghar P.W. armed with Sotas were present in the street in front of my house and they were abusing Muhammad Ashraf and Muhammad Latif. I came out of the house and stopped them not to give abuses on which Muhammad Asghar P.W. attacked me. I grappled with him when the other persons accompanying Muhammad Asghar also attacked upon me and during that period Muhammad Latif, Muhammad Ashraf came over there. The complainant party started beating us with their respective weapons. I, Muhammad Latif and Muhammad Ashraf accused in self-defence gave injuries to Bashir Ahmad deceased, Muhammad Asghar and Muhammad Boota, Muhammad Zaman and Muhammad Azam came during the fight who witnessed the occurrence. I got a case registered against the complainant party under section 323/148/149, P.P.C. which is pending alongwith this case. Muhammad Latif, Muhammad Ashraf, Muhammad Zaman and Muhammad Azam are the P.Ws. in that case and as the complainant party was the aggressor; because Bashir Ahmad deceased and Muhammad Boota P.Ws. who did not belong to this village had especially been called by Muhammad Asghar P.W. and thus they had made a concerted attack upon us and that I, Muhammad Latif and Muhammad Ashraf had acted in self-defence, Muhammad Siddique accused was not present at the spot. A concocted story has been brought against us."

Muhammad Ashraf and Muhammad Latif appellants also stated that they had been attacked by the complainant party. The other appellants denied their participation in the offence and attributed the case to enmity. It would not be out of place to mention that a cross-case was also registered against Muhammad Asghar, Muhammad Boota P.Ws., Bashir Ahmad deceased, Muhammad Asif and Muhammad Arif, brothers of Muhammad Asghar P.W. under sections 148 and 323/149, P.P.C. for causing injuries to Muhammad Ashraf, Muhammad Latif and Muhammad Alam appellants. The said case ended in the acquittal of Muhammad Asghar etc.

8. Relying on the testimony of Muhammad Asghar (P.W.6), Muhammad Boota (P.W.7) and Mst. Sughran Bibi (P.W.8), the trial Court convicted and sentenced the appellants as stated above.

9. Assailing the judgment, learned counsel for the appellants contends that the conviction of the appellants is against the weight of evidence and the trial Court has wrongly come to the conclusion that the appellants were guilty of the offence with which they were charged.

On the other hand, learned counsel for Muhammad Asghar P.W. has argued that despite the fact that Muhammad Azam and Muhammad Zaman were found guilty under section 302/34, P.P.C. they have not been awarded death sentence. He further states that the acquittal of Muhammad Alam and Muhammad Siddique under section 302, P.P.C. was not proper and they were also liable like other accused.

10. Admittedly, the relations between the parties were strained even prior to the occurrence. A reference may be made in this behalf to the statement of Mst. Sughran Bibi (P.W.8). According to her the relations between the parties were strained for the last 4/5 years. She admitted that Mst. Nazir Bibi, wife of Muhammad Asghar P. W . was related to the accused party and that she had obtained an ex parte decree for the dissolution of marriage against Muhammad Asghar P. W. against their wishes and that they were not on speaking terms with the appellants since the day of her dissolution of marriage. She is the real sister of Muhammad Asghar P.W. The latter admitted that he had strained relations with his wife who was related to the appellants. He further admitted that about 2 months prior to the occurrence cross-cases were registered against them and the appellants for causing injuries to the deceased and the appellants. In the case got registered by the accused party against Bashir Ahmad deceased, his father, brothers, and other close relatives were also challaned on one side, whereas Muhammad Latif appellant and others were challaned from the opposite side. The father of Muhammad Asghar P. W. was also a co-accused of Bashir Ahmad deceased in the case under section 324/325, P.P.C. The said cases were still pending between the parties at the time of the present occurrence. Muhammad Boota (P.W.7) was a close relation of the deceased. According to him Bashir Ahmad deceased was the son of Taja, a real brother of his grandfather namely Raja. He is a resident of another village.

11. The appellants did not have any motive against Bashir Ahmad deceased. There was no immediate motive to the appellants for the commission of the crime. The ocular evidence besides being interested is in conflict with the medical evidence. The number of the injuries found on the person of the deceased is not commensurate with the number of the accused and lot of improvements were made by the P.Ws. to bring the statements in line with the medical evidence. Bahadur Khan P.W. cited as an eye-witness in the F.I.R. was not examined. In this view of the matter, the testimony of the eye-witnesses could not be accepted without any corroboration which is not forthcoming. As already stated above the recoveries of Lathis from the appellants were not considered by the trial Court to be of any significance because those were not stained with blood. We do not agree with the learned counsel for the complainant and the State that medical evidence provides necessary corroboration to the ocular testimony. It is well-settled that the medical evidence is not by itself sufficient to corroborate tainted ocular evidence and some more circumstance should be looked into to throw light on the identity of the assailants. The trial Court has itself disbelieved the ocular testimony with regard to the vicarious liability of Muhammad Alam and Muhammad Siddique appellants for the murder of Bashir Ahmad deceased and in the absence of any conformatory circumstance it was not safe to place reliance on the said testimony against the other appellants. There was a cross-version of the occurrence as put forward by the appellants. Muhammad Ashraf, Muhammad Latif and Muhammad Alam appellants had also suffered injuries on vital parts of their bodies which could not be self-suffered or self-inflicted. The plea advanced by them of having been first attacked by the complainant party and their having acted in self-defence appears to be reasonably possible.

12. For the reasons discussed above, the prosecution case is not free from doubt and accordingly, we accept the appeal, set aside the conviction and sentences of the appellants' and acquit them of the charges by giving them the benefit of doubt.

13. The appellants in custody shall be released forthwith if not required in any other case.

Muhammad Alam and Muhammad Siddique are on bail and are discharged from the bail bonds.

The death sentence awarded to Muhammad Ashraf and Muhammad Latif are not confirmed.

14. For the reasons discussed above the revision filed by Muhammad Asghar fails and is dismissed accordingly.

S. A. Appeal accepted.

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