1984 P Cr (PLP)

MAZHARUL HAQ, J.‑Muhammad Ashraf (25), Muhammad Nawaz (18), Fatteh Muhammad (45), Muhammad Kabir (70), Ghulam Hussain (40), Abdul Ghafoor (25), Muhammad Ramzan (30), Ghulam Rasool (60), Muhammad Arif (30) and Allah Bakhsh (55) were tried for the murder of Muhammad Nawaz by the learned Sessions Judge, Bahawalpur. On 28th January, 1980 Muhammad Ashraf and Muhammad Nawaz, accused, were convicted under section 302/34, P. P. C. and sentenced each to death. They were also fined Rs. 5,000 each in default to undergo two years' R. I. further. The fine, if realized was ordered to be paid as compensation to the heirs of the deceased. The remaining eight accused were acquitted. The appeal of the convicts, the connected murder reference and complainant's revisions against the acquittal and enhancement are before us.

2. Allah Bakhsh and Kabir, accused, are brothers. Ashraf and Arif accused are sons of Allah Bakhsh. Ghafoor and Ramzan are sons of Kabir. Fatteh Muhammad is married to the daughter of Kabir, accused. Nawaz, accused is the son of said Fatteh Muhammad. Ghulam Rasool, accused, is a relation of Kabir and Allah Bakhsh, accused. Ghulam Hussain is married to the daughter of said Ghulam Rasool.

3. About six months before the occurrence in this case, Ashraf, accused, was injured by Nawaz (deceased), and a case was registered under section 307, P. P. C. against Nawaz (deceased), Mumtaz and Nizam which was pending trial when the occurrence in this case took place. This was the motive for the crime. According to the prosecution on 8th February, 1979 at about digerwela Muhammad Nawaz (deceased) alongwith Muhammad Ramzan was carting household articles of Muhammad Afzal on a bullock‑cart from Basti Qazi Saeed to village Baidana and as they passed near the land of Misri Khan, the ten accused who were armed, laid in ambush on the way, suddenly appeared on the scene. Muhammad Ashraf raised a lalkara to kill Muhammad Nawaz, upon which Muhammad Nawaz, jumped out of the bullock‑cart and 'ran into the wheat field of Misri Khan. Muhammad Ashraf fired a .12 bore pistol the shot hit Nawaz in the back. Ghulam Hussain fired a revolver shot, which hit Muhammad Nawaz on the right thigh and he fell down. Muhammad Kabir and Ghafoor who were empty‑handed caught hold of the deceased by the legs. Muhammad Arif inflicted a hatchet blow on his neck Allah Bakhsh gave a hatchet blow on his right shin. Ghulam Rasool gave a hatchet blow on his right ankle. Muhammad Nawaz and Muhammad Ramzan inflicted hatchet blows each on his right leg. The occurrence was witnessed by P. Ws. Muhammad Ali, Muhammad Bakhsh and Ali Khan besides Muhammad Azeem (informant). Nawaz died at the spot. The accused fled away. P. W. 13 Muhammad Azeem a first cousin of Muhammad Nawaz (deceased) went to the Police Station, Hasilpur, situated at a distance of five miles from the place of occurrence; he reached there at 5 p. m. and made report Exh. P. T. to P. W. 16 Nazim Ali, S.I./S. H. O. After recording the F. I. R. the S.‑I. went to the place of occurrence, prepared the necessary documents, took into possession blood‑stained earth, and sent the dead‑body for its post‑mortem examina tion. From the place of occurrence, the S.I. collected a .12 bore crime empty P. 6 and .12 bore crime empty P.

7. These were made into a sealed parcel, vide memo. Exh. P. F. He also took into possession through memo. Exh. P. X. the bullock‑cart, the household articles lying therein. Besides the Investigating Officer, the recovery memos. were attested by P. W. 8 Muhammad Ajmal and Khuda Bakhsh (given up).

4. P. W. 7 Dr. Ali Ahmad, Medical Officer, Civil Hospital, Hasilpur, held the autopsy on the dead body of Muhammad Nawaz on 9th February, 1979 a t9 a. m. and found the following injuries on it: ‑ "(1) Incised wound 3" x 1 ' x bone deep in front and on right side of neck. The roid cartilage was cut in its upper part and so were the blood vessels on the right side. Third cervicle vertebra was also cut through and through so was the spinal cord. (2) Three fire‑arm injuries on the back, one entering the chest at the level of 9th rib on the right, the second was skin deep with pellet lying under the skin, and the third one was a superficial abrasion. (3) Incised wound 1 " x " x ' on the outer side of right arm with fracture of right humerous. (4) Incised wound 1 x x " on the right side of right knee joint, (5) (5) Incised wound 3 x x 3" on the outer side of right knee joint, cutting outer side of the right tibia. (6) Incised wound 1" x 11" x 4" below the right knee joint. Bone under it was also cut. (7) Incised wound 2" x " x on right thigh. (8) A fire‑arm wound penetrating on the outer side of right thigh entry wound making an exit on the inn‑ side. In his opinion, third spinal vertebra, spinal cord, blood vessels, in the neck, humerous bone, and right tibia were cut. Right lung was injured. According to the doctor, death was due to shock and haemorrhage caused by injuries Nos. 1 & 2, which were sufficient to cause death in the ordinary course of nature. Time lapsed between death and post‑mortem was about 16 hours. Deceased's stomach was empty, small intestines contained gases and digested food, large intestines contained faecal matter, and gases and the bladder was empty.

5. On 12th February 1979 Muhammad Arif, Allah Bakhsh and Nawaz; accused, appeared before the Investigating Officer who arrested them. Their shirts P. 8, P. 9 and P. 10 were blood‑stained. He took them into possession, vide memo. Exh. G., Exh. H. and Exh. J., respectively. They were made into a sealed parcel. Ghulam Rasool and Muhammad Ashraf were also arrested on the same day. Fatteh Muhammad and Ramzan, Ghafoor, Kabir and Ghulam Hussain were arrested on 14th February 1979. Arif, Allah Bakhsh, Ramzan, Ghulam Rasool and Nawaz, accused, got recovered their hatchets P. 11, P. 12, P. 13, `P. 14, and P. 16 on 18th February, 1979. These ware taken into possession through memo. Exh. P. K. Exh. P. L., Exh. P. M., Exh. P. N., and Exh. P.R. respectively. The same day Fatteh Muhammad got recovered his stick P. 15, which was taken into possession, vide memo, Exh. P. Q. On 21st February, 1979, Ashraf, accused, led to the recovery of his pistol, P. 17 from kalhori of wheat lying in his house, it was taken into possession, vide memo. Exh. P. S. and made into a sealed parcel attested by P. W. 16 Nazim Ali, S.I, P. W. 11 Farzand Ali, P. W. 12 Muhammad Ramzan and Munwwar Shah (given up). According to the fire‑arm expert's report Exh. P. H. H., the .12 bore pistol found wedded with the crime empty recovered from the spot. After completing the investigations the accused were sent up for trial.

6. At the trial, accused denied guilt and ascribed the case enmity with Ahmad Khan Bhandira. They explained that one Mukhtar Ghazi Khanda was murdered by Ahmad Khan Bhandira. Since they had helped Mukhtar Ghazi Khan's party therefore, Ahmad Khan Bhandira got them falsely in volved in this case. In defence, they produced two witnesses namely D. W. 1 Allah Wasaya and D. W. 2 Qazi Muhammad Ali. Muhammad Ashraf, accused, produced a copy of F.

1. R. Exh. D. B., report under section 173, Cr. P. C. Exh. D. C., Copy of the Judgment Exh. D. D, Aks Shajra Exh.

17. E. and Khasra Girdawari Exh. D. F. relating to D. W. 1 Allah Wasaya.

7. In this case, four Court witnesses were examined by the trial Court namely C. W. 1 Muhammad Buta, H. C., Reader, to S. D. P. O., Hasilpur, C. W. 2 Muhammad Irshad, H. C., Naib‑Reader to S. P., Bahawalpur, C. W. 3 Safdar Hussain, Inspector, C. I. A., who had also investigated this case and C. W. 4 Abdullah Khalid, Inspector, who too had partly investigated the case.

8. Trial Court came to the conclusion that Ashraf, accused, had the direct motive against the deceased whereas the remaining accused had an indirect motive through Ashraf being closely related to him. In so far as the recoveries from the accused were concerned, trial Court did not rely on them and concluded that under the circumstances, the positive opinion of the fire‑arm expert with regard to the pistol of Ashraf was of no value to the prosecution. Disbelieving the recoveries, it further observed that investigation in the case was not fair and did not inspire confidence. In so far as the ocular testimony was concerned out of the three eye‑witnesses, trial Court did not consider it safe to rely on the evidence of Muhammad Azeem (complainant). It however, relied on the remaining two eye‑witnesses.

9. Criticizing trial Court's finding, it was argued that though P. W. 14 Muhammad Ramzan and P. W. 15 Muhammad Bakhsh were considered disinterested witnesses yet the trial. Court observed that their evidence required corroboration against all accused and while placing reliance on their testimony against the appellants, it took into considera tion such circumstances which arose out of inadmissible evidence. These circumstances are to be found in the testimony of the investigating officers who were even otherwise discredited by the trial Court while commenting upon the investigation of this case. Explaining these circumstances which the trial Court took into account, learned counsel for the appellants argued that C. W. 4 Abdullah Khalid, Inspector, who was at one stage associated with the investigation of this case deposed that Ashraf and Nawaz, appellants, had pleaded before him: that they alongwith Atta Muhammad and Manzoor were the only culprits in the case, upon which he instructed P. W. 16 Nazim Ali Shah, S. H. O., to produce Atta Muhammad and Manzoor before him and these two supported appellants' statement made by them before the Inspector. Thereafter, the matter was left to the oath of the heads of the two rival groups in the village but it could not be resolved because the complainant did not agree. On the other hand, P. W. 16 Nazim Ali Shah, S.I., deposed that Atta Muhammad and Manzoor were examined by him on 1st March, 1979 but they did not make any confession. C. W. 3 Safdar Hussain, Inspector, who investigated the case besides Nazim Ali Shah, S.I., and Abdullah Khalid, Inspector, deposed that he had gone through the record of the earlier investigation and found that Atta Muhammad and Manzoor had said that they were responsible for the crime alongwith Ashraf and Nawaz. He, however, did not examine Atta Muhammad and Manzoor because he considered that the accused were trying to distort the prosecution story. Taking into consideration the evidence of the three investigating officers, trial Court made the observation, "that in so far as Ashraf and Nawaz were concerned, Ashraf had the direct motive to attack and throughout the cross‑examination of the prosecution witnesses, it is the defence case that the other accused were not concerned in the occurrence and particularly the version to the investigators including Abdullah Khalid, S. D. P. O., the police officer who was most favourable to the accused party was that only Ashraf and Nawaz, accused, alongwith Atta Muhammad and Manzoor were the culprits and none else. Trial Court further observed that this independent circumstance appearing on the record coupled with the motive on the part of Ashraf, accused, are taken as definite corroboration of the eye‑witness account." We have considered this aspect of the case and are of the view that the statement of a witness which is otherwise inadmissible in evidence cannot be used as corroborating circumstances appearing in evidence of the case because if they are taken into consideration then it would amount to indirectly accepting inadmissible evidence which the law does not permit. True, in this case, the investigating officer have not been fair and it appears that each one of them has brought discredit to the entire investigation which the trial Court has rightly observed by saying that it is left to their higher officers to look into. But again this would not mean that what is inadmissible in evidence should be taken into account in determin ing the guilt of the accused in this case. It is noteworthy that C. W. 4 Abdullah Khalid, Inspector, was the only investigating officer who said in his examination to Court that Ashraf and Nawaz, accused had pleaded before him that they alongwith Atta Muhammad and Manzoor were the only culprits and none else, upon which this officer asked P. W. 16 Nazim Ali Shah, S. H. O., to produce Atta Muhammad and Manzoor before him which he did and the two supported the plea of the appellants. Thereafter, he instructed the S. H. O. to call the parties and examine them in the light of the plea raised by Ashraf and Nawaz, which was supported by Atta Muhammad and Manzoor. But it seems that after this exercise, the investigating officer tried to resolve the matter on oath but the complainant party did not agree to it and the Court witness therefore, requested the S. P. that the investigation be transferred as it was creating difficulty for the local police. The investigation thereafter was transferred. But after this, there is nothing in the evidence of the case to show whether the case was investigated further on the line of the said plea. On the contrary, on Court questions P. W. 16 Nazim Ali Shah, S. H. O., said that though Atta Muhammad and Manzoor had told him that they alongwith Ashraf and Nawaz had committed the Crime, he did not consider it proper‑ to produce Atta Muhammad and Manzoor as witnesses against Ashraf and Nawaz nor he got their confessional statements recorded. On the same point, he was examined by the Public Prosecutor and the witness said that on Ist March, 1979 he had examined Atta Muhammad and Manzoor and after consulting case diaries, the witness said that they did not make a confession. Thereafter the defence counsel questioned him on the same issue and asked him to refer to the case diary from where the witness deposed that it was written therein that "Atta Muhammad stated that he alone with Ashraf and Nawaz, accused, as well as Manzoor had conspired to murder the deceased. Atta Muhammad was carrying a .32 bore revolver and Manzoor had a stick. They hid themselves in the wheat field and the revolver which was with him at the time of occurrence had been deposited at his house in a box." P. W. 16 Nazim Ali Shah further went on to say that "the same day he had recovered the revolver from Atta Muhammad. He added that this was also the statement of Manzoor recorded by him at digerwela. According to him, Manzoor said that when the deceased came on the Gadda, he was fired at by Ashraf, accused, and others had beaten him and that they be forgiven." True, Atta Muhammad and Manzoor are neither accused in this case nor witnesses, therefore whatever, they had said to the police officer during the investigation and the same was reproduced at the trial by the investigating officer in their evidence is hit by the provision of the Evidence Act and this narration would be inadmissible in evidence. True. Court can refer to the case diaries for its satisfaction but this would not mean that the Court should take into consideration the effect inadmissible evidence as corroborating circumstance appearing on the record of the case. At this stage, it may be mentioned that Ashraf, accused, in defence produced D. W. 1 Allah Wasaya who deposed that four persons had attacked Nawaz, deceased with hatchets. Out of them, he could only identify Atta Muhammad and Manzoor the other two had muffled their faces. His statement was worthless, it did not appeal to reason that out of four, two would muffle their faces and the other two would not care about their identification. It is also noteworthy that on his own showing he did not mention the occurrence to any one and was examined by the police one month after the occurrence. It may be mentioned that the defence version put up by D. W. 1 Allah Wasaya was not even suggested to the eye‑witnesses though it was put to the investigating officer P. W. 16 Nazim Ali Shah, S. H. O. 9‑A. It was next contended that the evidence of P. W. 14 Muhammad Ramzan and P. W. 15 Muhammad Bakhsh has not been relied upon as against the eight acquitted accused. Their statements as against the appellants should also not be relied upon. We have considered this aspect of the matter and are of the view that if there be reliable corroboration of their statements against some of the accused, then their evidence against those accused can be relied upon. As such the question for determination would be what corroboration is there of their testimony against the appellants. Nawaz, accused, appeared before the police along with Allah Bakhsh and Arif, accused. Their blood‑stained shirts were taken into possession. With regard to the recovery of blood‑stained clothes, there is no reason to differ with the finding of the trial Court that it would not stand to reason that the accused would be wearing the blood‑stained clothes at the time of their arrest, which was effected four days after the occurrence. Next is the recovery of weapons from the accused. Nawaz along with Ghulam Rasool, Arif, Allah Bakhsh and Ramzan got recovered their blood‑stained hatchets 10 days after the occurrence. The same argument, which we have considered with regard to the shirts will also apply to this recovery. Moreover, we find that by their demeanour, the two recovery witnesses did not impress the trial Court as it observed that they had some mental conflict. As to Ashraf, he got recovered pistol P. 17, 13 days after the occurrence. The recovery effected from him is also attested by the same two witnesses who have not been relied upon. It was not only the demeanour of the recovery witnesses namely P. W. 11 Farzand Ali and P. W. 12 Muhammad Ramzan which did not impress the trial Court but what ultimately weighed with it was the unfair investigation in this case. The S. H. O. had moped an application for the remand of the accused on 21st February 1979 and in the order allowing remand, the Magistrate had observed that the recovery was to be effected from the accused. Trial Court observed that there was no necessity of allowing remand of those accused from whom the hatchets and sticks were recovered on 18th February, 1979. Further, the Court observed that there were indications on the record that the investigation was not done either by the S. H. O. or by the two Inspectors in a straightforward manner, so no reliance could be placed on these recoveries. We find no reason to differ with the finding about the recoveries in this case.

10. The prosecution is left with one corroborating circumstance i.e. the motive for the crime in this case. Muhammad Ashraf, accused, admitted at the trial that he had been injured by Nawaz, accused, about 4/5 months before the occurrence in this case and be got a case registered against him and two others under section 307/34, P. P. C. As such, it is established beyond doubt that Ashraf, accused, had the motive to attack the deceased. Nawaz, accused, like the acquitted accused was related to Ashraf, accused, but the direct motive in this case was only with Ashraf. Under these circumstances, the case of Nawaz would be on the same footing as that of the acquitted accused. We thus conclude that the motive story can be accepted as a corroborating circumstance as against Ashraf alone. The next question for determination would be whether the statement of the two eye‑witnesses are otherwise reliable.

11. P. W. 14 Muhammad Ramzan is not related to the deceased. He was in the Gadda with the deceased when the attack was opened. Ashraf was the first accused to have fired at the deceased who had started running. True, Muhammad Ramzan had been convicted in a case under section 458, P. P. C. but there is no link of ether party with this case. P. W. 15 Muhammad Bakhsh is the next eye‑witness who has no enmity with the accused. He supported the statement of Muhammad Ramzan. True, this witness had said that Muhammad Ali and Ali Khan were with him at the time of the occurrence. These two witnesses were, however, not produced by the prosecution. But this would not mean that Muhammad Ramzan had not seen the occurrence. He has also attributed the fatal shot to Ashraf, which hit the deceased in the back chest. We are, of the view that the statements of P. Ws. Muhammad Ramzan and Muhammad Bakhsh F found corroboration from the evidence of motive against Ashraf. We are, therefore, satisfied with the guilt of Ashraf, accused, and dismiss his appeal. In so far as Muhammad Nawaz is concerned, he had no direct motive against the deceased, we, therefore, give him the benefit of doubt and acquit him. Sentence of death of Ashraf, accused, is confirmed. M.Y.H. Appeal partly accepted.