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Criminal Appeal No. 114 of 1986 (Lahore), Criminal Appeal No. 263/M of 1983 (Multan) and Murder Reference No. 187 of 1983, heard on 19th January, 1987.
‑‑S. 302/34‑‑Witness, related and interested, evidentiary value of‑ Eye‑witnesses closely related to deceased‑‑Enmity between parties admitted‑‑Motive suggestive of parties being inimically disposed towards each other‑‑Trial Court finding existence of blood‑feud between parties‑‑ Independent corroboration of testimony of witnesses, held, would be required in circumstances.
‑‑‑S. 302/34‑‑Ocular testimony, appreciation of‑‑Eye‑witnesses closely related‑‑Medical evidence materially contradicting initial case put forward by prosecution in F.I.R.‑‑Injuries of witness finding no mention in F.I.R.‑‑Witness appearing before police but not mentioning of her injuries allegedly received during occurrence‑‑Witness getting herself medically examined by private lady doctor‑ ‑Abscondence of accused, not legally proved‑‑Nothing on record showing any proceedings under S. 87/88, Cr.P.C.‑‑ Investigating Officer admitting accused to be cultivating land as tenants in Sind from where arrested‑‑Recoveries of guns not relied upon by Trial Court‑‑Occurrence in big village but no independent witness coming forward to support prosecution version‑ Unconnected witness, cited but not produced at trial‑‑Background of enmity between parties existing‑‑Delay in conducting post‑mortem examination not explained‑‑Arrest of accused from Sind, held, would not provide required corroboration to ocular evidence‑‑No independent corroboration to testimony of prosecution witnesses was found Motive alone would not provide required corroboration as it would cut both ways ‑Accused acquitted in circumstances.
Asghar Ali Chaudhary for Appellants.
M. Rafiq Butt for the State.
Dates of hearing: 12th, 17th, 18th and 19th January, 1987.
.‑‑Ali Sher (25), Falak Sher (23), Nausher (22) and their father Mokha were tried for the murder of Sher Muhammad (40) and his son Mumtaz (20/21) while Sultan son of Machhia (55) was tried for harbouring the accused and destroying the evidence. By his judgment, dated 15‑11‑1983 the learned Additional Sessions Judge‑III, Sahiwal convicted Ali Sher, Falak Sher and Nausher under section 302/34, P.P.C. and sentenced Ali Sher and Falak Sher to death and a fine of Rs.3,000 or in default to further undergo R.I. for three months each. They were also ordered to pay Rs.3,000 each as compensation under section 544‑A, Cr.P.C. to the legal heirs of the two deceased or in default to undergo R.I. for three months each. Nausher accused was sentenced to imprisonment for life and a fine of Rs.3,000 or in default to undergo further R.I. for three months. He was also ordered to pay Rs.3,000 as compensation under section 544‑A, Cr.P.C. to the heirs of Mumtaz deceased or in default to undergo further R.I. for three months. Sultan and Mokha accused were, however, given the benefit of doubt and acquitted.
2. We have before us the appeal filed by Ali Sher, Falak Sher and Nausher and the reference received from the trial Court for confirmation of the death sentences awarded to Ali Sher and Falak Sher. Both the matters are being disposed of by this judgment.
3. The motive for the offence was that about 1‑1/2 years prior to the occurrence Mansha son of Mokha accused (since acquitted) had been murdered for which Sher Muhammad deceased and Malku brother of Ali Sher P.W.12 were challaned. Sher Muhammad deceased was on bail in the said case when the occurrence in question had taken place.
4. The prosecution story is that on 2‑4‑1982 at Maghrab prayer time Naseer P.W. 10 alongwith Khan Muhammad P.W. (not examined) was returning to his house from the fields. Then they reached near their house they saw Mokha and Nausher alias Nausha armed with guns and Ali Sher and Falak Sher appellant armed with hatchets entering their house. Challenging Sher Muhammad deceased Mokha fired from his gun hitting him on the face and neck as a result of which he fell injured. Ali Sher gave was lying on the ground. Nausher appellant fired gunshots at Mumtaz deceased son of Sher Muhammad deceased and injured him. Falak Sher appellant gave hatchet blows to Mumtaz deceased on his neck. Mokha and Nausher then ascended the roof of Chhapper o: the deceased and started firing indiscriminately. Mst. Rani P.W. 11 widow of the deceased tried to intervene but she was given hatchet blows by Ali Sher. The latter then entered into a room of the house of Sher Muhammad deceased and brought out his licensed gun and took away the same. The accused then left the spot with their weapons. Both the deceased expired instantaneously. Ali Sher P.W.12 and Falak Sher (not examined) had also witnessed the occurrence. Nasir P.W.10 left for Police Station Dera Rahim which was at a distance of six miles from the spot and lodged F.I.R. Exh.P.G. with Ashiq Hussain A.S.I. P.W. l7 at 11‑30 p.m. on the same night.
The A.S.I. reached the spot on the following morning and took into possession six empty and live cartridges. He prepared the injury statement and inquest report Exhs. P.P. and P.Q. respectively of Sher Muhammad deceased and Exh. P.R. and Exh. P.S. of Mumtaz deceased. He searched for the accused but could not arrest them and got a proclamation issued against them from the Court. S.I. Muhammad Ghani Khan P.W.18 arrested Sultan accused on 7‑8‑1982. S.I. Muhammad Ameer Abdullah P.W.19 arrested Mokha, Ali Sher and Falak Sher appellants from Sind on 30‑12‑1982. On the same day he recovered gun P.7 and 15 empties at the instance of Mokha accused through memo. Exh.P.M. On 13‑1‑1983 he arrested Nausher accused from Sind and recovered at his instance gun P.8 alongwith three live cartridges through memo. Exh.P.N. '
5. Dr. Riaz Ahmad P.W.7 conducted the post‑mortem examination on the dead body of Sher Muhammad deceased on 4‑4‑1982 at 11‑00 a.m. and found the following injuries thereon:‑---
(1) Left ear cut with sharp weapon into two pieces obliquely.
(2) Incised wound 13 c.m. x 4 c.m. x bone cut starting 3 c.m. below left ear, going posteriorly and cutting maxilla mandible (left) with brain tissue and ending at the back of neck.
(3) Incised wound 23 c.m. x 5 c.m. x bone cut starting from left side of nose, cutting nasal bones, left maxillary bone, left mandible and ending at the back of neck crossing injury No. 2 with blood‑vessels and other tissues underlying also cut and corresponding cervical vertebrae was also cut.
(4) Incised wound 21 c.m. x 4 c.m. x bone cut 1 c.m. below injury. No. 3 starting from left angle of mouth going posteriorly 2 c.m. below injury No. 3 and cutting left mandible.
(5) Incised wound 12 c.m. x 3 c.m. x bone deep starting from left side of lower, cutting the lip and ending at left lateral side of neck, cutting all underlying tissues in the region and also in the cervical vertebrae.
(6) Incised wound 25 c.m. x 2 c.m. starting from tip of chin and going posteriorly 1 c.m. below injury No. 5, cutting left mandible.
(7) Incised wound 7 c.m. x 3 c.m. on anterior surface of neck, cutting trachae (interior wall).
(8) Incised wound 8 c.m. x 6 c.m. on the top of left shoulder x bone cut cutting lateral end of left clavicle and part of left scapula and part of head of left humerous.
(9) Abrasion 1‑1/2 c.m. x 1/2 c.m. front middle left leg.
(10) Abrasion 1‑1/2 c.m. x 1‑1/2 c.m. dorsum of left foot.
(11) Multiple abrasions in area of 5 c.m. x 5 c.m. front of left knee.
Death was due to shock and haemorrhage caused by injuries Nos. 2 to 8. All the injuries were ante‑mortem. Injuries Nos. 1 to 8 were caused by sharp‑edged weapons and rest by blunt weapons. Duration between death and post‑mortem was about 24 to 48 hours.
On the same day at 9‑00 a.m. he conducted autopsy on the dead body of Mumtaz deceased and found the following injuries on his person:‑----
(1) Rounded lacerated wound 3 c.m. x 3 c.m: x deep going with burnt skin around and inverted margins, front of left knee.
(2) Abrasion 2‑1/2 c.m. x 3/4 c.m. just below left knee.
(3) Rounded lacerated wound 3‑1/2 c.m. x 3‑1/2 c.m. x deep going with burnt skin and inverted margins.
(4) Rounded lacerated wound 3 c.m. x 3 c.m. x deep going with skin burnt and inverted margins lit c.m. medial to injury No. 3.
(5) Rounded lacerated wound 1‑1/2 c.m. x 1‑1/2 c.m. x deep going with burnt skin and inverted edges 1/2 c.m. medial and above injury No. 2.
(6) Incised wound 13 x 5 c.m. x bone cutback and right side of head 4 c.m. behind right ear going deep into brain matter, cutting brain covering.
(7) Incised wound 15 c.m. x 3 c.m. x bone cut starting from right side of face 3‑1/2 c.m. behind right eye, crossing injury No. 6, passing below right ear and ending at the back of neck, cutting right maxillary bone, mandible and skull.
(8) Incised wound 18 c.m. x 3‑ I/2 c.m. bone cut starting from right angle of mouth, going posteriorly cutting right mandible.
(9) Incised wound 5 c.m. x 1 c.m. x bone deep on the right side of face just below right mandible.
(10) Incised wound 3 c.m. x 1‑1/2 c.m. x muscle deep back upper left forearm.
(11) Abrasion 1‑1/2 c.m. x 1/4 c.m. outer middle left upper arm.
(12) Right upper central incisor missing and lateral upper incisor partially cut with cutting of corresponding gum as well.
Death was due to shock and haemorrhage caused by injuries Nos. 6, 7, 8 and 9. Injuries Nos. 1, 3, 4 and 5 were caused by fire‑arm and Nos. 2 and 11 by blunt weapon. Duration between the injuries and death was about a few minutes and that between death and post‑mortem about 24 to 48 hours.
Lady Doctor Zubeda Khatun P.W.15 examined Mst. Rani Bibi P.W.11 on 4‑4‑1982 and found the following injuries on her person:‑
(1) Contusion mark 12 c.m. x 12 c.m. on the right shoulder.
(2) Contusion mark 22 c.m. x 10 c.m. on the left hip.
The injuries were caused by a blunt weapon and were simple in nature.
6. The appellants denied the prosecution allegations and attributed the case to enmity. They stated that they had been cultivating land as tenants in Gote Sami, District Nawab Shah, Sind from where they were arrested and it was after their arrest that they came to know about the registration of the case against them. No evidence was called by them in defence.
7. The prosecution examined 19 P.Ws. to prove its case. Nasir P.W.10, Mst. Rani P.W.11 and Ali Sher P.W.12 furnished the ocular testimony. Muhammad Shafi P.W.14 and Muhammad Ameer Abdullah P.W.19 proved the recoveries of gun P.7 at the instance of Mokha accused (since acquitted) and gun P.8 and live cartridges at the instance of Nausher. Muhammad Jamil F.C. P.W.2 deposed about the abscondence of the appellants. Sadiq P.W.13 deposed about the burning of clothes by Sultan. Muhammad Rafique P.W.16 proved the recovery of gun at the instance of one Ashiq. Excepting the Investigating Officers the other witnesses were of formal nature.
8. Relying on the motive, the ocular testimony and abscondence of the appellants the trial Court convicted and sentenced them as described above. The recoveries of guns etc. from the appellants were not however, considered duly proved by the trial Court and thus were not taken into consideration.
9. Assailing the judgment, it is argued by the learned counsel for the appellants that the eye‑witnesses were interested and there is no independent corroboration of their testimony, that deliberate attempts were made by the P.Ws. to improve upon their previous statements, that there was an unexplained delay in conducting post‑mortem examinations on the dead bodies and that the abscondence of the appellants had not been legally proved.
Nasir P.W.10 is real brother of Sher Muhammad deceased and uncle of Mumtaz deceased. Ali Sher P.W.12 is a nephew of Sher Muhammad deceased and cousin of Mumtaz deceased. Mst. Rani P.W.11 is widow of Sher Muhammad deceased and mother of Mumtaz deceased. Nasir P.W.10 alongwith Sher Muhammad deceased was challaned for the murder of Mansha son of Mokha accused (since acquitted) and brother of the appellants. His brother Sher Muhammad deceased was on bail when the occurrence in question had taken place. Malku, a real brother of Ali Sher P.W.12 had also been challaned for the murder of Mansha son of Mokha accused alongwith Sher Muhammad deceased. The extent of enmity of the P.Ws. with the appellants can be judged by the fact that when in the course of cross‑examination Ali Sher P.W.12 was asked to look towards Falak Sher appellant and state whether he had a weak eye‑sight he refused to do so on account of enmity. The motive set up by the prosecution itself suggests that the parties were inimically disposed towards each other. The trial Court has also admitted that there was blood‑feud between the parties. In these circumstances, independent corroboration was required of the testimony of the eye‑witnesses examined by the prosecution for accepting their evidence. But the same is not forthcoming. On the other hand, there is a material contradiction between the initial case set up by the prosecution in the F.I.R. and the medical evidence. According to the F.I.R. lodged by Nasir P.W. 10, Mokha accused (since acquitted) had fired the first gunshot hitting Sher Muhammad deceased on the face and neck but in the post‑mortem examination of Sher Muhammad deceased no fire‑arm injury was found on his person. Nasir P.W. had tried to bring his evidence in, line with the medical evidence by stating at the trial that when Mokha fired at Sher Muhammad deceased he laid on the ground to save himself. Furthermore, in the F.I.R. there is no mention of the injuries suffered by Mst. Rani P.W. She appeared before the police on 3‑4‑1982 and did not state having received injuries at the hands of the appellants. And it was for this reason that the police did not prepare her injury statement but on the following day i.e. 4‑4‑1982 she got herself privately examined by Lady Doctor Zubeda Khatoon. Thus, the possibility of the injuries being self suffered by her cannot be ruled out. The Lady Doctor who had examines: her stated that the duration of the injuries could vary by one day either way.
10. The abscondence of the accused was not legally proved for want of the issuance of any proclamation. There is nothing on the record to show that proceedings under section 87/88, Cr.P.C. were initiated against them. On the other hand, S.I. Muhammad Ameer Abdullah P.W.19 admitted that the appellants had been cultivating land as tenants in District Nawab Shah, Sind. In this view of the matter, the arrest of the appellants from Sind does not provide the required corroboration to the ocular evidence. It would not be out of place to mention here that the recoveries of guns from Nausher appellant and Mokha accused were not relied upon by the trial Court (see para. 28, page 51 of the paper book). Mokha whose gun had tallied with the crime empties recovered from the spot was acquitted by the trial Court.
11. It is in the evidence of Nasir P.W.10 that the village where the occurrence in question had taken place was quite big having about 400/500 houses and persons belonging to different castes resided there but surprisingly no one except the close relatives of the deceased has come" forward to support prosecution version. In view of the background of enmity between the parties the eye‑witnesses had a motive to falsely implicate the accused. Khan Muhammad an unconnected eye‑witness mentioned in the F.I.R. was given up by the prosecution. The part attributed to Mokha accused was admittedly found to be false. There is no independent corroboration of the testimony of the eye‑witnesses examined by the prosecution.
The unexplained delay in conducting the post‑mortem examination has made their testimony further doubtful. In the presence of blood‑feud between the parties the motive alone would not provide any corroboration to the ocular testimony because it cuts both ways. If the appellants had motive against the deceased, the complainant party, too, did not have any soft corner for them and tried to involve almost all male members of their family.
12. Keeping in view the above circumstances, the prosecution has failed to bring home guilt to the appellants beyond all shadow of doubt. Accordingly we accept their appeal, set aside their conviction and sentence and acquit them of the charge. They shall be released, forthwith, if not required in any other case.
13. The death sentence awarded to Ali Sher and Falak Sher appellants is NOT confirmed.
S.A./A‑37/L Appeal accepted.
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