Find a Lawyer

(a) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 148 & 302/149‑‑Revision against acquittal‑‑Ocular account, appreciation of‑‑Eye‑witnesses closely related to deceased‑‑Accused related inter se and also to complainant party‑‑Witnesses allegedly cutting fodder with deceased‑‑No sickle or blood‑stained fodder taken into possession‑‑Witnesses having no injuries on their persons‑‑Trial Judge doubting presence of witnesses at spot‑‑Nothing on record to show witnesses having enmity or animosity against accused‑‑No possibility of falsely substituting accused for real culprits‑‑Reasons given by trial Judge in disbelieving presence of witnesses being far‑fetched and fanciful, it could not be unequivocally said that eye‑witnesses were not present at spot.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑Ss. 302 & 148/149‑‑Ocular account, corroboration of‑‑Hatchets recovered from accused, found stained with human blood‑‑Hatchets recovered twenty days after occurrence and received by Chemical Examiner, nine days thereafter‑‑Blood had not disintegrated or was not washed away from hatchets by them, held, could not be believed and finding of trial Judge that recovery evidence was not worthy of credit, could not be stated to be perverse‑‑Order of acquittal not interfered with in circumstances.

(c) Penal Code (XLV of 1860)‑‑

‑‑Ss. 302 & 148/149‑‑Evidence, appreciation of‑‑Three of accused declared innocent by police and acquitted‑‑Right arm of one of accused severed from elbow‑‑Only one accused appearing main participant‑ Before any of accused could safely be held to have participated in occurrence, corroboration, held, would be required for conviction‑ Prosecution had not come forward with true story‑‑No ground for interference in order of acquittal could be found in circumstances.

M.B. Zaman for Petitioner.

Syed Zulfiqar Haider for the State.

Mian Dilawar Mahmood for Respondents.

Dates of hearing: 11th and 14th February, 1987.

Muhammad Nawaz, Muhammad Mumtaz, Fida Muhammad, Muhammad Aslam and Ata Muhammad were tried by an Additional Sessions Judge of Sargodha under section 302/148/149, P.P.C. for the murder of Muhammad Khan, deceased and for rioting. The learned trial Judge, by his judgment, dated 22‑9‑1983, acquitted all the accused of the said charges. Being aggrieved by the said judgment, Muhammad Nawaz, complainant, filed a revision petition (Criminal Revision No. 646 of 1983) which was admitted by this Court on 15‑5‑1984 to consider the case of Muhammad Nawaz and Muhammad Mumtaz, accused‑respondents. The said revision petition is now before me for disposal.

2. The prosecution case in brief is that on 17‑3‑1982 at about 10‑00 a.m. Muhammad Khan, deceased, and Sikandar P.W. 5 were cutting the fodder in the land of Muhammad Khan, deceased. In the meanwhile, Muhammad Aslam, Ata Muhammad, Mumtaz, Nawaz and Fida Muhammad, accused, all armed with hatchets, came there. Muhammad Aslam, accused, raised a Lalkara that they would teach a lesson to Muhammad Khan, deceased, for having illicit relations with Mst. Zeenat, wife of Muhammad Nawaz, accused. Muhammad Aslam, accused, inflicted a hatchet blow on the forehead of Muhammad Khan, deceased. Ata Muhammad, accused gave a blow with the hatchet on the back of the neck of the deceased. Mumtaz, accused, inflicted a blow with his weapon, hitting the left elbow of the deceased. Muhammad Nawaz, accused, inflicted hatchet blow hitting the left wrist of Muhammad Khan, deceased. Fida Muhammad, accused inflicted hatchet blow landing on the left back side of the deceased. Muhammad Khan, deceased, fell down as a result of the injuries. Then Muhammad Nawaz, accused, gave a hatchet blow on the back of his head. Muhammad Mumtaz, accused, gave another hatchet blow on the left hand of the deceased. All the accused gave more blows to the deceased. Naik Muhammad and Riaz (given up P.Ws.) saw the occurrence, besides the complainant and Sikandar P.W.5. They rescued the deceased from the hands of the accused. The accused succeeded in running away.

The motive for the alleged occurrence was that the accused suspected Muhammad Khan, deceased, of having illicit relations with Mst. Zeenat, wife of Muhammad Nawaz, accused.

3. Muhammad Khan, deceased, was immediately rushed to Civil Hospital, Sargodha, where Dr. Iltaf Hussain P.W.7 medically examined him at 12‑15 noon. He found twelve incised injuries on various parts of his body, of which five were declared grievous as bones underneath the said injuries had been cut. All the injuries were caused by sharp‑edged weapons within three hours of the occurrence.

4. After getting the medical report, Muhammad Nawaz, complainant P.W.4, proceeded to Police Station Sahiwal, District Sargodha, where he lodged F.I.R. Exh.P.B. at 2‑00 p.m., which was recorded by Muhammad Bashir M.H.C.P.W.2.

5. Mr. Pervaiz Hussain Shah S.I. P.W.8, having received information of the occurrence, reached the spot, from where he collected blood‑stained earth, vide memo. Exh. P.C.

6. On 21‑3‑1982, Muhammad Khan, deceased, died in the hospital. Dr. Iltaf Hussain P.W.7 conducted the post‑mortem examination on the dead body of the said deceased at 3‑00 p.m. and found the same injuries on his person, as he had found earlier. Death was due to the incised injuries on the right side of the forehead and on the back of the skull of Muhammad Khan, deceased, which individually and collectively, with the injuries inflicted on the back of the neck, radius of the left ulna bone and the left forearm, were held to be sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was about four days and that between death and post‑mortem examination about three hours.

7. On 23‑3‑1982 all the accused were arrested by Syed Pervaiz Hussain Shah S.I. P.W. 8.

8. On 6‑4‑1982 Muhammad Khan and Muhammad Nawaz, accused, led to the recovery of the blood‑stained hatchets P.3 and P.4, which were taken into possession by the police vide memos. Exh.P.E. and EXh.P.F, respectively. The recoveries were witnessed by Muhammad Afzal P.W. 6, Syed Pervaiz Hussain Shah S.I. P.W.8 and Nek Muhammad (given up P.W.).

9. During investigation, blood stains on the hatchets were found to be of human origin. ;

10. After completing the necessary investigation, the challan against all the five accused was sent up.

11. At the trial, the prosecution produced Muhammad Nawaz, complainant P.W.4, to prove the motive, the said witness and Sikandar P.W.5 in proof of the ocular account, Muhammad Afzal P.W.6 and Syed Pervaiz Hussain Shah S.I. P.W.8 in support of the recoveries and Dr. Iltaf Hussain P.W.7 in corroboration of the medical testimony. All the accused denied all the accusations that were levelled against them including the recoveries alleged to have been effected at the instance of two of them They imputed their false involvement to suspicion and enmity.

12. The learned trial Judge, after disbelieving the ocular testimony and the recoveries, rejected the case of the prosecution and acquitted all the accused, as stated above.

13. I have heard the arguments of the learned counsel for the petitioners, the respondents and the State and have perused the record. The evidence as regards the ocular account is furnished by Muhammad Nawaz complainant P.W.4 and Sikandar P.W.5, who happen to be the brother‑in‑law and son respectively of Muhammad Khan, deceased. All the accused, including the respondents, are inter‑related inter se, apart from being related to the complainant group. According to the prosecution version, Muhammad Nawaz P.W.4 was helping Muhammad Khan, deceased, by cutting fodder with him alongwith Sikandar Hayat P.W.5.; Both the witnesses were disbelieved by the trial Judge on the ground that had they been present at the time of occurrence, they would have intervened to rescue the deceased from the respondents and their co -accused and as they had no injuries on their person and the sickles alleged to have been used by them to cut fodder and the blood‑stained fodder alleged to have been lying at the spot were not taken into possession by the police, their presence at the spot appeared to be doubtful. It has not been brought out on the record at all that either of the two eye‑witnesses had any enmity with or animosity against any of the accused, including the two respondents. Since they had also relationship with the accused party, it was not possible for them to have falsely substituted the accused for the real culprits. Reasons given by the learned trial Judge in disbelieving their presence appear to be farfetched and fanciful. It cannot be unequivocally stated that the two eye‑witnesses were not present. I would, therefore, disagree with the view of the learned trial Judge in this respect.

14. However, what stands out a mile is that three of the accused; namely, Fida Muhammad, Muhammad Aslam and Ata Muhammad, who were held innocent by the police, were acquitted by the trial Judge. Since three of the five accused have been acquitted, it cannot be denied that corroboration would be required in the instant case, before any of the respondents can be safely held to have participated in the occurrence. Corroboration is offered against the respondents through the blood stained hatchets alleged to have been recovered at their instance. The said hatchets were recovered on 6‑4‑1982. They were received by the Chemical Examiner on 15‑4‑1982, who found the same to be stained with blood. Scrapings from the said hatchets were sent to the Serologist on 17‑4‑1982, who opined on 28‑4‑1982 that the blood thereon was of human origin. The hatchets being recovered twenty days after the date of occurrence, and received by the Chemical Examiner nine days thereafter, it is not possible to believe that the blood had not disintegrated by then. It is not possible to believe that the two respondents did not by this time wash away the blood stains from their hatchets. The two recovery witnesses produced by the prosecution happen to be Muhammad Afzal P.W.6 and Pervaiz Hassan S.I. P.W.8. Muhammad Afzal P.W.6 is the brother‑in‑law of Muhammad Khan, deceased. Taking all circumstances into consideration, the finding of the learned trial Judge, as recorded in para. 33 of his judgment, that the recovery evidence is not worthy of credit, cannot be stated to be perverse or not based on the evidence on the record.

15. The upshot of the above discussion is that even if I were to hold that the finding recorded by the learned trial Judge as regards the ocular account, as contained in para. 22 of his judgment, was not legal and correct, I would not be able to say the same with regard to the recovery evidence, as recorded in para. 23 thereof. Without corroboration, no conviction can be recorded. Even otherwise, the certificate of identification of Muhammad Nawaz, respondent, recorded on 23‑3‑1982, as appearing in the file, shows that his right hand from right elbow down was severed. If this be so, Muhammad Mumtaz, respondent, alone appears to be the main participant. Everything said and done, the prosecution does not appear to have come forward with the true story. No grounds for interference, therefore, arise in this case.

16. For the foregoing reasons, this petition is dismissed.

S.A./M‑70/L Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.