1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑This Criminal Appeal No. 420 of 1986, Murder Reference No. 156, of 1986 and the connected Revision Petition No. 48 of 1987 filed by Khalid Mahmood Khan complainant against the acquittal of the seven co‑accused arised from the judgment of the learned Additional Sessions Judge, Sialkot whereby he on 24‑6‑1986 acquitting Tariq Mahmood, Shahbaz Khan, Gul Nawaz Khan, Shah Faqir Khan, Mushtaq Ahmad Khan, Ejaz Ahmad Khan and Yousaf Khan, convicted Arif Khan (30) appellant under section 302, P.P.C. for the murder of Mahmood Sarwar Khan (36/37) and sentenced him to death and a fine of Rs.20,000 in default thereof two years' R.I. with the direction that the fine if recovered, three‑fourth of it be paid as compensation to the legal heirs of the deceased.

2. The occurrence took place on 19‑3‑1985 at 4 p.m. in the area of Gluttian Khurd at a distance of three miles from the Police Station, Daska. The FA.R. is statement Exh.P.F. of Khalid Mahmood Khan P.W.9 brother of the deceased recorded on the same day at 5 p.m. by Muhammad Khan S.I. P.W.15 at Morr Gluttian Khurd. Formal F.I.R. Exh.P.A. was drawn up on the same day at 5‑30 p.m. by Murawat Ali Moharrir Head Constable P.W.l.

3. The parties are closely related. Shahbaz Khan and Gul Nawaz Khan acquitted accused are brothers of Arif Khan appellant. They are sons of the real cousin of Khalid Mahmood Khan complainant. Tariq Mahmood acquitted accused is real brother of the deceased. Shah Faqir Khan acquitted accused is husband of the father's sister of the deceased. Mushtaq Khan and Ejaz Khan are sons of Shah Faqir Khan acquitted accused. Yousaf Khan acquitted accused is the paternal‑uncle of the deceased. Niaz Ahmad P.W.10 is the son of the first cousin of the deceased. Shehzad Mahmood Khan P.W.11 is the real brother of the deceased.

4. The background of lithe occurrence was land dispute between Shah Faqir Khan acquitted accused and the deceased party which led to the civil and criminal litigation between them. The immediate cause of attack on the deceased and others, was that in the morning of the fateful day, Nazir Ahmad, Patwari P.W.5 had come to the village for Girdawari. Shah Faqir Khan etc. suspected that the complainant party had got Girdawari of the disputed land in their names, hence this occurrence.

5. As far the main occurrence it has been stated that at the eventful time, Khalid Mahmood Khan complainant, Mahmood Sarwar Khan deceased; Niaz Ahmad Khan P.W.10, Shahzad Mahmood Khan P.W.11 and Abdur Rashid Khan (not produced) were sitting in the Dera of Abdur Rashid Khan when all of a sudden Tariq Mahmood brother of the deceased armed with Chhuris, Arif Khan appellant and his brothers namely Shahbaz Khan and Gul Nawaz Khan, armed with Chhuris, Shah Faqir Khan and Mushtaq Khan empty‑handed, arrived on the spot. Shah Faqir Khan raised Lalkara that they will teach lesson for getting Girdawari in their favour. Shah Faqir Khan picked up brick and hurled it on Mahmood Sarwar deceased hitting on his head. Mushtaq Khan gave another brick blow to Mahmood Sarwar Khan on his head. Niaz Ahmad Khan and Shehzad Mahmood P.Ws. intervened whereupon Mushtaq Ahmad Khan gave brick blow to Niaz Ahmad Khan on right side of his head. Shah Faqir Khan hurled brick‑bat on Shehzad Mahmood Khan P.W. hitting him near the ear. Mahmood Sarwar Khan deceased tried to run away from the spot. Shah Faqir Khan exhorted his co‑accused to catch hold of him and finish him. Tariq Mahmood Khan, Arif Mahmood Khan, Shahbaz Khan, Gul Nawaz Khan and Arif Khan appellant armed with Chhuris followed Mahmood Sarwar Khan and overtook him at a distance of one acre. Tariq Mahmood Khan and Shahbaz Khan tried to give injuries on the abdomen of the deceased but he took them on his hand. Arif Khan appellant then gave Chhuri blows on the back of the chest of Mahmood Sarwar Khan whereupon he fell down on the ground. Gul Nawaz gave injury to deceased on the back of his left knee as a result of which a vein was cut. The appellant and the acquitted accused continued raising Lalkara that whoever would come near to them, will not be spared. Mahmood Sarwar Khan died on the spot. The occurrence was seen by Khalid Mahmood Khan P.W.9, Niaz Ahmad P.W.10, Shehzad Mahmood P.W.11 and Abdur Rashid Khan (not produced). The appellant and his co‑accused made good their escape. Mahmood Sarwar Khan was allegedly killed in pursuance to the conspiracy hatched by Muhammad Yousaf Khan and Ejaz Ahmad Khan acquitted accused.

6. On 20‑3‑1985, Dr. Syed Iftikhar Ahmad P.W.6 conducted post‑mortem examination on the dead body of Mahmood Sarwar Khan. He found following injuries:‑ (i) Lacerated wound 2 x 3/4 c.m. x scalp deep U shaped on the left side of head, 4 c.m. above left ear. (ii) Lacerated wound 4 x 1 c.m. x scalp deep on the left side of front of head, 5 c.m. above left eyebrow, oblique. (iii) Lacerated wound 2 x 1 c.m. x scalp deep over back of right side of head, 4 c. m . behind and above right ear. (iv) Incised wound 5 x 1 c.m. x muscle deep on the back and outer aspect of upper part of right hand directed obliquely downwards, forwards and laterally. (v) Incised wound 6 x 2 c.m. x cutting the space between right thumb and right index finger, obliquely backwards, upwards and medially, cutting muscles of right thenar eminence. (vi) Incised wound 1 x c.m. x skin deep, transversely on front and lower part of left costal margin, 6 c.m. below and to the left of xiphisternum. (vii) Incised wound 5 x 6 c.m. x partially cutting back of the left heel (left tendon) Achilles tendon transversely. (viii) Stab wound 2 x 1 c.m. x chest cavity deep obliquely downward, forwards and medically over back of middle of left chest, below left lower angle of scapula. (ix) Laceration 4 x c.m. transverse across outer side of middle of right buttock. (x) Incised wound 2 x c.m. x muscle deep over back of middle of right buttock, transverse. (xi) Incised wound 1 x c.m. x muscle deep over back of middle of left buttock directed obliquely upward, forwards and laterally. In his opinion, the death had occurred due to shock and haemorrhage as a result of injury No.8 which alone and alongwith other injuries was sufficient to cause death in the ordinary course of nature. Injuries Nos. 4 to 8, 10 and 11 were caused by the sharp‑edged weapon. The rest of the injuries were caused by blunt weapon. The death was immediate and the time between the death and post‑mortem was within 24 hours. In cross‑examination, the doctor stated that he had received the inquest report on 20‑3‑1985 at 11‑45 a.m. when the dead body was brought to mortuary.

7. Dr. Gul Nawaz P.W.12 examined Niaz Ahmad Khan P.W. on 20‑3‑1985 at 10 a.m. He found following injuries on his person:‑ "(1) Lacerated wound 3 x 1 c.m. x scalp deep vertical at back of left side of head. The injury was kept under observation and declared simple on 30‑3‑1985. The injury was caused by blunt weapon. Duration of injury was about 18 hours. Exh.P.L. is correct carbon copy of my medico‑legal report which is in my hand and has been signed by me." The injury was simple and was caused by blunt weapon within about 18 hours of the examination. On the same day, he examined Shehzad Mahmood Khan P.W. and found following injuries on his person. The injuries were simple in nature and were caused by blunt weapon within 18 hours of the examination.

8. The appellant was arrested on 29‑4‑1985 by Muhammad Khan S.I. P.W.15. On 3‑5‑1985 he led to the recovery of blood‑stained Chhuri P.3 from his cattle‑shed which was taken into possession vide Memo. P.G. attested by Shehzad Mahmood Khan P.W.11. Muhammad Khan S.I. P.W.15 and Abdur Rashid Khan (not produced). On the same day Tariq Mahmood Khan acquitted accused led to the recovery of blood‑stained Chhuri P.4 from his cattle shed which was taken into possession vide memo. Exh.P.H. attested by the same witnesses. The Chemical Examiner reports show that the Chhuri allegedly recovered from Arif and Tariq Mahmood Khan were stained with blood. ‑The Serologist's reports Exhs.P.T. and P.U. reveal that the Chhuris recovered from Arif Khan appellant and Tariq Mahmood Khan co‑accused were stained with human blood.

9. To prove its case, the prosecution examined 15 witnesses. Khalid Mahmood Khan P.W.9, Niaz Ahmad Khan P.W.10 and Shehzad Mehmood Khan P.W.11 have given ocular account of the occurrence. They claimed to have seen Arif Khan appellant causing injury with his Chhuri on the back of the chest of the deceased. They also saw Shah Faqir Khan and Mushtaq Ahmad Khan causing injuries on the person of the deceased and also on the person of Niaz Ahmad Khan and Shehzad Mahmood Khan P.Ws. According to them, Tariq Mahmood Khan, Shahbaz Khan, Gul Nawaz Khan had also caused injuries to the deceased with their Chhuris. Khalid Mahmood Khan has also deposed about the motive of the appellant and his co‑accused to do away with the deceased. Dr. Syed Iftikhar Ahmad P.W.6 has proved the post‑mortem examination of the deceased. Dr. Gul Nawaz has proved the medico‑legal reports of the injuries of the injured P.Ws. Shehzad Mahmood Khan P.W.11 and Muhammad Khan P.W.15 have stated that the Arif Khan appellant and Tariq Mahmood Khan acquitted accused had led to the recovery of blood‑stained Chhuris P.3 and P.4 respectively from their cattle‑shed. Atiq‑ur‑Rehman P.W.14 was a witness of the conspiracy of Yousaf Khan and Ejaz Ahmad Khan acquitted accused. The rest of the evidence is more or less of formal nature.

10. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. In defence no witness was produced. The trial Court examined S. Mukhtar Hussain Sherazi D.S.P. Special Branch as C.W.1. He stated‑ that according to his investigation, the allegations of the conspiracy against Ejaz Ahmad Khan and Muhammad Yousaf Khan accused were false.

11. Learned trial Court was of the view that the F. I. R. was recorded after preliminary investigation; that the motive was not proved; that the three eye‑witnesses produced by the prosecution were locked in litigation (civil as well as criminal) with the appellant and his co‑accused; that the three eye‑witnesses were related to the deceased and were inimical to the accused and as such independent corroboration of their statements was required qua each accused; that there was no satisfactory corroboration of the statement of the eye‑witnesses against the acquitted accused, so while giving benefit of doubt, the trial Court acquitted them. The trial Court believing evidence of recovery of blood‑stained Chhuri P.3 from Arif Khan appellant and treating the same as a sufficient corroboration of the statements of the eye‑witnesses qua the appellant has convicted and sentenced him as stated above.

12. Learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt inasmuch as the F.I.R. was registered after preliminary investigation that no motive to murder the deceased could be proved against the appellant and the co‑accused; that the three eye‑witnesses are closely related to the deceased and inimically disposed towards the appellant and co‑accused; that their evidence has not been acted upon to the extent of four accused namely Tariq Mahmood, Shehzad Khan, Gul Nawaz Khan, Shah Faqir Khan and Mushtaq Ahmad Khan to whom they had attributed active participation in the crime; that the recovery witnesses namely Shehzad Mahmood Khan P.W.11 and Muhammad Khan S.I. P.W.15 have not been believed so far as the recovery of blood‑stained Chhuri from Tariq Mahmood Khan co‑accused is concerned and the recovery of blood‑stained Chhuri from the appellant after 11 months of the occurrence is highly improbable. Learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the petitioner in the connected revision. at the very outset stated that he does not challenge the acquittal of Tariq Mahmood Khan acquitted accused. He however, maintained that the prosecution has been able to prove its case against the rest of the acquitted accused.

13. We have anxiously attended to the arguments addressed by the learned counsel for the parties. We have also reviewed the entire evidence that has been produced by the prosecution; statement of the accused recorded under section 342, Cr.P.C., the circumstances, appearing in the case and the statements of the Court witnesses carefully. We feel persuaded to agree with the learned counsel for the appellant. On our independent assessment of the evidence, or, record we find that the findings of the learned trial Court that the F.I.R. was recorded after preliminary investigation (para No.13); that the prosecution could not prove motive against the accused (para No.14); that the eye‑witnesses are related, inimical, interested and locked in criminal as well as civil litigation and as such require independent corroboration qua each accused (paras Nos. 16 and 17) are based on the material available in the case. The trial Court has given sound and cogent reasons in support of his aforesaid observation is and as such no exception can be taken to the acquittal of the co‑accused. We are fully convinced that the rule of prudence did require independent corroboration of the statement of the three eye‑witnesses qua each accused including the appellant. Since the learned trial Court has believed the circumstance of the recovery of blood‑stained Chhuri P.3 from the appellant as a corroborative piece of evidence for convicting him, therefore, the fate of the case of the appellant almost depends upon the credibility of the recovery witnesses namely Shehzad Mahmood Khan P.W.11 and Muhammad S.I. P.W.15 and the weight to be attached to the alleged recovery of blood‑stained Chhuri P.3 from him. We find that the recovery of blood‑stained Chhuri P.4 from Tariq Mahmood Khan co‑accused which was supported by the same witnesses has not been acted upon by the trial Court. Shehzad Mahmood Khan P.W.11 is also an eye‑witness of the occurrence, therefore, it cannot be said that the corroborative evidence has come from a source distinct from the tainted one. Doubtless a witness cannot corroborate himself in any manner by giving evidence of different categories. Muhammad Khan S.I. P.W.15 being Investigating Officer is naturally interested in the conviction of the appellant. The recovery of blood‑stained Chhuri P.3 allegedly effected from the appellant on 29‑4‑1985 by Muhammad Khan S.I. P.W.15 is somewhat ridiculous in that the occurrence took place on 19‑3‑1985; the accused was arrested on 29‑4‑1985 and as such he had ample time to wash the blood from the Chhuri. His conduct of keeping blood stains intact for about 11 months runs counter to the natural probabilities. He was arrested on 29‑4‑1985 but Chhuri was allegedly recovered on 3‑5‑1985. It seems to us that the alleged recovery of blood‑stained Chhuri P.3 from the appellant on 3‑5‑1985 is in fact fake and was planted on him to strengthen the prosecution case. Once the evidence of recovery of blood‑stained Chhuri is excluded from consideration, the case of the appellant becomes at par with that of Tariq Mahmood Khan, Shahbaz Khan, Gul Nawaz Khan, Shah Faqir Khan and Mushtaq Ahmad Khan about whom we have already observed that they have rightly been acquitted. For all these reasons we are of the view that the prosecution has not been able to prove its case against Arif appellant beyond reasonable doubt. As a consequence of the above discussion, Arif Khan appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case. The Criminal Revision No. 48 of 1987 automatically fails. Sentence of death is NOT confirmed. M.Y.H./A‑346/L Appeal allowed.