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Criminal Appeal No. 17 of 1984, decided on 7th October, 1986.

‑‑‑S. 302/34‑‑Self‑defence, plea of‑‑Appreciation of evidence‑ Deceased, a natorious person‑‑Witness not attributing any role to accused rather stating that at time of occurrence he was in his shop‑‑Witness did not mention the ambush story and stated that he saw accused and his sons attacking deceased who retreated and entered his shop where he fell dead‑‑Witness, under his cross‑examination admitted that accused and his sons resented the presence of the deceased in front of their shop which provoked them but did not know whether deceased overawed accused‑ Witness flatly admitted that he did not know the origin of fight and stated that deceased was also holding a Chhuri in his hand‑‑ In fact deceased had no shop in the Bazar 'where the occurrence took place‑‑Investigating Officer also admitted that accused also bore injuries but injury statement was not prepared‑‑Held, it was not safe to rely upon such witness and circumstances lend sufficient support to the defence version of self- defence‑‑Accused given benefit of doubt and acquitted.

‑‑‑S. 302/34‑‑Recovery‑‑Crime weapon‑‑Recoveries effected eight days after the occurrence‑‑Crime weapons were alleged to be stained with human blood‑‑Only recovery witness related to deceased and had come from another village on hearing about the murder and stayed on at village of occurrence till the recovery was effected‑‑Investigating Officer did not join any one from locality to attest recovery memo.‑‑Conduct of Investigating Officer was not above board, for he gave no explanation for not having prepared injury statement of accused and for not having joined disinterested witnesses during recoveries‑‑ Investigating Officer collected blood from the shop of prosecution witness but did not get the recovery memos. attested by him‑‑Held, it would be highly improbable that accused who concealed their weapons would let the blood remain on the weapons for the Investigating Officer to recover after so many days‑ Police official was a good witness as any other, provided his conduct during the investigation had no adverse reflection on the investigation‑ To rely on testimony of recovery witness or the Investigating Officer, would therefore, not be safe‑‑ Accused was given benefit of doubt and acquitted.‑‑[Witness].

Waheedud Din Virk for Appellants.

Sohail Akhtar for the State.

Date of hearing: 7th October, 1986.

Bashir Ahmad (60), his sons Pervez (30), Shahbaz (16) and Muhammad Nawaz (17) were tried for the murder of their co‑villager Muhammad Ashraf alias Bala. On 23‑11‑1983, Additional Sessions Judge, Sialkot convicted and sentenced them to imprisonment for life with a fine; of Rs.1,000 each in default to undergo six months' R.I. further. Fine, if realised, was ordered to be paid as compensation to the heirs of the deceased. Appeal of the convicts is before me.

2. About six months before the occurrence in this case. Taji whose sister was married to Pervez accused was murdered. Ashraf (deceased) and his two brothers were accused of the murder. Later, Muhammad Ashraf was allowed bail because the police found him innocent. His brother Arshad was convicted and the rest were acquitted. According to the prosecution, on 20‑2‑1982, at noon, Bashir empty‑handed and his sons Pervez, Nawaz and Shahbaz armed with Chhuris were present in the Chowk waiting for Ashraf. As soon as he reached the Chowk and proceeded towards the Railway Road Bazar, Bashir raised a Lalkara at his sons saying that murder of Taji be avenged, upon which, his sons opened the attack. Pervez gave a Chhuri blow in his abdomen who tried to run away, Muhammad Nawaz inflicted a Chhuri blow in the loin of Ashraf who again tried to escape but Shahbaz inflicted a Chhuri blow in his abdomen. Muhammad Nawaz also inflicted a Chhuri blow in the abdomen. Ashraf ran for life and went into the shop of P.W. Yusuf but the three accused followed him there and gave more injuries to him who died at the spot and the accused fled away. P.W.12 Fazal Hussain, A.S.1. Police Post Badumalhi happened to be present in the main Bazar. Muhammad Iqbal a first cousin of the deceased made statement Exh.P.B. to him on the basis of which formal F.I.R. Exh. P.B./1 was registered at Police Station Rayya the same day situated at a distance of four miles from the place of occurrence. The A.S.I. prepared the necessary documents and sent the dead body for its post‑mortem examination. He took into possession blood‑stained earth from the shop of Yusuf it was made into a sealed parcel through memo. Exh.P.D. He also took into possession blood‑stained sack from the same shop and made into a sealed parcel through memo. Exh.P.E. Besides the Investigating Officer, the two memos. were attested by P.W. 6 Asghar Ali a brother of the deceased and Umer Din who was given up as unnecessary.

3. On the following day, P.W.1 Dr. Nazeer Ahmad, Medical Officer, held the autopsy and found nine incised wound on the various parts of the dead body of Ashraf. Death occurred due to shock and haemorrhage caused by the injuries to the heart and lungs.

4. On 26‑12‑1982, all the accused were arrested and on 28‑12‑1982 Pervez in custody got recovered his blood‑stained Chhuri P.5 from his meat shop which was made into a sealed parcel through memo. Exh.P.G. The same day, Shahbaz accused got recovered blood‑stained Chhuri P.6 from his house, it was made into a sealed parcel through memo. Exh.P.H. Nawaz also got recovered blood‑stained Chhuri P.7 from his house, it was made into a sealed parcel through memo. Exh.P.J. Besides the Investigating Officer. the three memos. were attested by P.W.10 Ilam Din an uncle of the deceased and Mubarak Ali who was given up as unnecessary. After completing the investigation, the accused were tried in due course.

5. All accused denied guilt and ascribed the case to enmity. Except Bashir who took up the plea of self‑defence, the remaining accused denied their presence at the spot. According to him, Muhammad Ashraf who had been released, on bail shortly before the occurrence in this case wanted him not to prosecute the murder case of Taji. On his refusal, Muhammad Ashraf and others attacked him with Chhuris and acting in self‑defence he inflicted a Chhuri blow to him. No accused led evidence in defence,

6. Relying on the evidence of the eve‑witnesses and that of the recoveries from the accused, trial Court found Bashir and his sons guilty of the murder.

7. Criticizing the finding, learned counsel for the appellants contended that P.W. Muhammad Iqbal who is an interested witness put up an improbable story because according to him, he had seen the accused armed with Chhuris waiting in the Chowk for the deceased, yet he made no attempt to forewarn the deceased or check the accused before hand. Next contended that the occurrence was alleged to have taken place at noon when many people were around but only two witnesses were produced, out of them, P.W.2 Iqbal, informant, was an interested witness whose presence at the place of occurrence appear to be a doubtful matter. This is also supported by the fact that the F.I.R. was recorded at the place of occurrence. It was further contended that it is admitted by the Investigating Officer and the informant that Bashir was injured yet the A.S.I. prepared no injury statement nor he explained why he did not get Bashir medically examined. This would adversely reflect on the investigation. There was yet another material omission made by the Investigating Officer with regard to the recovery of the blood‑stained earth and the blood‑stained sack recovered from the shop of P.W. Yunus who appeared as an eye‑witness in this case. This recovery is said to be effected from his shop but the witness has not attested the recovery memos. On the other hand, besides the Investigating Officer, P.W.6 Asghar, a brother of the deceased who is an interested witness appeared at the trial and deposed about the recovery. The other witness namely Umer Din was not produced to support the recovery. This recovery was not satisfactorily proved.

8. The sole question for determination in this appeal would be whether, the statement of P.W.3 Muhammad Yunus could be relied upon. This witness did not attribute any role to Bashir. On the contrary, he said that Bashir was in his shop. He also did not mention the ambush story. He claimed to have seen the three accused attacking the deceased who retreated and entered his shop where he fell dead. Under cross -examination, the witness admitted that Bashir and his sons resented the presence of the deceased in front of their shop, as his presence provoked them. The witness did not know whether the deceased overawed the accused and said not to persue the case of Taji's murder. In fact, he flatly admitted that he did not know the origin of the fight. He also admitted that the deceased was holding a Chhuri in his hand which he possessed for cutting vegetable being a vegetable seller. According to P.W. 8 Hameedullah Draftsman, the complainant did not point out deceased's shop to him. It is clear that the deceased had no shop in the Bazar where the occurrence took place. Assuming that he did have a shop in another Bazar, he could have taken another route and not the one where the accused had their shop but he did not do so. On the other hand: it is admitted by P.W. Yunus that the deceased was holding a Chhuri in his hand. It will be relevant to mention here that both the Investigating Officer and P.W. Iqbal admitted that Bashir accused bore injuries. These circumstances, to my mind, lend sufficient support to the defence version. It may be added here that according to P.W. Yunus, the deceased did not enjoy a good reputation instead he was a notorious person. For these reasons, I do not consider it safe to rely on the testimony of P.W.3 Muhammad Yunus.

9. In so far as the recovery of weapons from the accused was concerned, P.W.10 Ilam Din is the only witness who has supported the prosecution case. On his own showing, he is related to the deceased and had come from village Wando on hearing about the murder. He stayed on in the village till the recovery was effected. Admittedly, the Investigating Officer did not join anyone from the locality, to attest the recovery memos. No doubt, a police official is as good a witness .as any other provided his conduct during the investigation had no adverse reflection on the investigation. In this case, the conduct of P.W.12 Fazal Hussain, A.S.I. is not above board because he gave no explanation for not having prepared the injury statement of Bashir and for not having joined disinterested witnesses during the recoveries in this case. It is pointed out that he collected blood from the shop of P.W. Muhammad Yunus but did not get the recovery memos. attested by him. I do not consider it safe to rely on his testimony. Even otherwise, the recoveries were effected eight days after the occurrence. It would be highly improbable that the accused who concealed their weapons would let the blood remain on the weapons for the Investigating Officer to discover.

For what has been stated above, I am not satisfied with the guilt of the appellants. Giving them the benefit of doubt, I accept their appeal, set aside the conviction and sentence and acquit them. They shall be released forthwith if not required in any other case.

M.B.A./B/17/L Appeal accepted.

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