1976 P Cr (PLP)

Date of hearing: 21st May 1974. Muhammad Afzal Khan, aged 47 years, and his brother Fazal Khan, aged 42 years, sons of Abu Samand Khan, Talib Khan, aged 57 years and Zaka Ullah, aged 42 years, both sons of Dildar Khan and uncles of the aforementioned two, as well as Akbar Khan son of Sardar Khan, aged 28 years nephew of the latter two, have been convicted under section 302/149, P.P.C. and sentenced to transportation for life for the murder of Muhammad Shah, vide judgment dated the 20th of July 1972, of the Additional Sessions Judge, Gujranwala. They were also sentenced to one year s R. I. each under section 148, P. P. C. The sentences were ordered to run concurrently. The appeal of the convicts is before me which is being disposed of by this judgment.

2. The occurrence took place on the 29th of August 1967, at 7‑30 a.m., in the area of village Kot Dilwar near Faqir‑di‑Jhuggi, at a distance of two miles from Police Station Pindi Bhattian, District Gujranwala. F. I. R. (Exh. P. C,) was lodged by Manzoor Shah (P. W. 11) brother of the deceased; at 8‑00 a.m. on the same day at Police Station Pindi Bhattian and it was recorded by Muhammad Sadiq S. I. (P. W. 15).

3. The motive for crime as set up by the prosecution is that 15/16, years prior to the occurrence the deceased had abducted Mst. Khan Bibi, aunt (Tai) of Akbar Khan appellant and she was never restored. Then it is stated that 3 years prior to the occurrence Khan Bahadur brother of Talib Khan and Zaka Ullah appellants was murdered and in connection with the same some relatives of the deceased were challaned. The deceased pursued the case on behalf of the defence and the accused in that case were acquitted. In that case, Fazal Khan and Zaka Ullah appellants were the eye‑witnesses. It is stated that on account of this reason, the appellants bore a grudge and enmity against the deceased.

4. The prosecution has produced three eye‑witnesses of the occurrence. namely, Manzur Shah (P. W. 11) brother of the deceased, Barkha (P.W. 16), partisan of Manzur Shah P. W. and accused in the murder of Mst. Sughran, sister of Talib Khan and Zaka Ullah appellants; and Yara (P. W. 17). It is on record that the deceased, Manzur Shah and Barkha P. Ws. were co‑accused in numerous theft cases and also had been convicted and sentenced. Yara P. W. was co‑accused in theft cases with Manzur Shah P. W. He turned hostile before the trial Court. Before the Committing Magistrate he made two statements. In the subsequent statement he is reported to have stated that he did not know anything about the occurrence. Yara son of Sahawal, another eye‑witness was cited in the F. I. R. but he died before the commitment proceedings commenced.

5. Zaka Ullah and Muhammad Afzal Khan appellants were arrested on the 15th of September 1967. Akbar Khan appellant was arrested on, the 11th of February 1968. Talib Khan and Fazal Khan appellants were arrested on the 5th of April 1969. There is no incriminating recovery in this case of any corroborative value.

6. Dr. Muhammad Hafeez Khan (P. W. 1) conducted post‑mortem examination on the dead body of the deceased at 5.00 p.m. on the 29th of August 1967, and found on his person 21 injuries in the form of abrasions, incised wounds, stab‑wounds, pellet inlet/out‑let wounds, and lacerated wounds all over the body. Death in his opinion was a result of shock and haemorrhage as the injuries were sufficient to cause death in the ordinary course of nature. Four forms of weapons have been used in this case, namely, sharp‑edged, sharp‑edged and pointed, blunt as well as fire‑arm. According to him the time between death and post‑mortem was 10 to 14 hours. The probable time between injury and death was immediate. The stomach was empty. Bladder contained 10 ounces of urine. On the day of occurrence the time of the sun‑rise was 5‑34 a.m.

7. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They stated that they had been falsely implicated due to enmity and suspicion. The defence version is that the deceased was done to death by some unknown assailants unwitnessed by any one as he was a dacoit and murderer as well as abductor and had many other enemies. It is also brought on the record that he had recently abducted a woman who was married to some one living in a nearby village, and on the day of the occurrence he was proceeding to Hafizabad for attending a hearing in the Court in connection with that abduction.

8. In the F. I. R. the occurrence is reported to have taken place in the following manner. On the fateful day, Manzur Shah P. W. accompanied the deceased early in the morning in order to attend the date of hearing in the abduction case against him at Hafizabad. They took the tonga of Yara (P. W. 17) and proceeded towards Pindi Bhattian. In that tonga, Barkha (P. W. 16), as well as Yara son of Sahawal since deceased were also sitting. The deceased and Barkha P. W. sat on the front seat whereas Manzur Shah P. W. and Yara son of Sahawal sat on the back seat. When the tonga reached at the place of occurrence, two of the appellants, namely, Muhammad Afzal Khan and Akbar Khan came out from the sarkandas and stopped the tonga. Akbar Khan appellant called the others and then Talib Khan, Zaka Ullah and Fazal Khan appellants armed with guns and riding on mares appeared and came towards the tonga. Thereupon, Akbar Khan appellant gave a ballam blow to the deceased which fell on the right side of his neck. The second ballam blow was given to him by Muhammad Afzal Khan appellant and it fell on his right flank under the ribs. There upon, they both dragged the deceased and made him fall on the road. Thereafter, Talib Khan, Zaka Ullah and Fazal Khan appellants fired 5/6 shots through their guns at him while he was in the fallen position. The shots hit him at his back, chest, left arm and right hand. Then Muhammad Afzal Khan and Akbar Khan appellants gave him barchi blows which fell on his belly, arm, thigh and leg. Manzur Shah P. W. pleaded before the appellants but they did not leave the deceased. After the deceased had died, the appellants ran away. The occurrence was witnessed by Yara (P. W. 17), Barkha (P. W. 16) and Yara son of Sabawal besides Manzur Shah P. W.

9. I have heard learned counsel for both the sides in detail and have carefully perused the record. Fazal (P. W. 7) is a witness of motive and from his statement it is clear that the complainant and the accused parties were inimical towards each other. In this case, the eye‑witnesses produced by the prosecution are hardly reliable. Manzur Shah P. W. is not only brother of the deceased but is a previous convict and has been a co‑accused with the deceased in numerous theft cases. Barkha P. W. has likewise been co‑accused in murder cases alongwith the deceased. So far as Yara P. W. is concerned he has changed his statements two times, before the Committing Magistrate and two times before the trial Court. In the circumstances, no reliance can be placed on him. Apart from it all these eye‑witnesses are merely chance witnesses. Had Manzur Shah P. W. accompanied the deceased he would have never been spared by the appellants. Any way, the testimony of these eye‑witnesses who are partisan and interested as well as hostile to the accused party cannot be accepted unless and until it is corroborated by independent evidence which is not forthcoming in the present case. The argument of learned counsel for the appellants to the effect that the deceased was a previous convict, a dacoit, a thief, an abductor, as well as murderer, and that he had many enemies and further that he had been done to death by some unknown assailants unwitnessed by any one, is based on the following pieces of evidence. It is submitted that the deceased was admittedly proceeding to Hafizabad to attend a date of hearing in the Court. Hafizabad was at a distance of 40/50 miles from Pindi Bhattian and Pindi Bhattian was at a distance of two miles from the place of occurrence whereas the place of occurrence was two miles from the village of the deceased. It is submitted that if the Court hours were from 7‑30 a.m. to 2.00 p.m. and if the deceased was to reach the Court at Hafizabad at 7‑30 a.m., by the roughest calculation, the occurrence would have taken, place some time around 3‑00 or 4‑00 a.m. It is further submitted that according to the medical evidence the time between the death and post‑mortem examination was 10 to 14 hours and that if the time of death of the deceased was calculated on this basis even then it occurred some time between 3‑00 a.m. and 5‑00 a.m. It is then submitted that the stomach of the deceased was empty at the time of his death although his bladder was full of urine. This also leads to the inference that he left for Hafizabad very early in the morning and not at 7‑30 a.m. as stated by the prosecution witnesses. It is next submitted that according to the medical evidence. there are certain injuries on the person of the deceased which are stated to have been caused by a blunt weapon whereas according to the testimony of the P. Ws. no dang blow is attributed to any of the appellants. On the contrary, in the earlier part, it is stated in the F. I. R. that the appellants gave balsam blows to the deceased whereas in the latter part it is mentioned that Muhammad Afzal Khan and Akbar Khan appellants gave barchhi blows to the deceased. According to learned counsel this discrepancy also indicated that the eye‑witnesses had in fact not seen the occurrence. The arguments of learned counsel have force. In the circumstances, when no reliance can be placed on the tainted and uncorroborated testimony of interested witnesses, it is reasonably probable that the occurrence took place in the early hours of the morning when it was still dark. It is further probable that the deceased left for Hafizabad alone and was waylaid by some unknown assailants who first fired at him from some distance and when he had fallen down, they caused further injuries with ballams and dangs. It is reasonably probable that they belaboured him with great ease because the number of 21 injuries on the person of the deceased indicated that they had been caused while the assailants were in no hurry. In the circumstances, when the enmity between the complainant and the accused parties is clearly established and the appellants had not even been declared as absconders, tire learned trial Court should have given the benefit of doubt to the appellants which I hereby give to them. Their convictions and sentences are set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case. Appeal allowed.