1984 PLP 190 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑This appeal through special leave of this Court is directed against judgment dated 14‑2‑1979 of the Lahore High Court whereby the conviction and sentence of life imprisonment and fine, of Muhammad Nawaz appellant for the murder of Saifullah were affirmed and his appeal was dismissed. The prosecution case summarised in the impugned judgment is that the deceased was carrying on with Mst. Khurshid Bibi s1ster of Muhammad Ikram acquitted accused. 10/12 days before the occurrence, she was married to Shahbaz brother of the appellant. Notwithstanding the marriage of Mst Khurshid Bibi to Shahbaz, the deceased continued meeting her. On the fateful day, at about 9/10 a.m. deceased was sitting at the shop of Anwar P. W. and smoking huqqu while Nur Muhammad P. W. had gone there to be his shoe mended. In the meantime Shahbaz accused came there. He asked Saifullah deceased to des1st from carrying on any more with Mst. Khurshid Bibi as she had been married to him. At this some altercation took place between the two in which Saifullah deceased gave two or three slaps to Shahbaz. Anwar P. W. however, separated them. Shahbaz left the shop saying that he would teach the deceased lesson for the slaps given to him. Soon thereafter, the present appellant and co‑accused Shahbaz and Muhammad Ikram re‑appeared. The latter two were raising Lalkaras. The appellant Muhammad Nawaz, thus exhorted, gave a hatchet blow on the head of the deceased whirl felled him to the ground. He succumbed to the injury. The hue and cry raised by the P. Ws. attracted P. W. Sohowa and one Sher Muhammad (not examined), to the spot. The assailants then left the shop and ran away raising Lalkara'. The appellant had during the investigation led to the recovery of a hatchet which on chemical analysis was found to have been stained with human blood. At the trial evidence of motive beside that of recovery and ocular account was examined from the prosecution side. All the accused denied participation in the occurrence. They denied the illicit connection of Mst. Khurshid Bibi, the s1ster of Ikram accused who is phuphizad of the other two. Her marriage with Shahbaz accused, 10/12 days before the occurrence however, was admitted. The appellant also denied the recovery of hatchet. They attributed the false implication due to enmity. Shahbaz and Ikram accused also pleaded alibi and stated that they had produced their defence evidence in this behalf before the Investigating Officer. Evidence was produced by them at the trial to show that the deceased was of bad character and that he had other enmities, suggesting thereby that it being an unwitnessed occurrence, he might have been killed by some one else. The learned trial Judge inter alia while taking note of an observation by the High Court in an earlier bail proceedings acquitted Shahbaz and Warn accused on mixed finding of alibi and also non‑participation. But treating the recovery of the hatchet as corroboration of Nur Muhammad and Anwar eye‑witnesses, convicted and sentenced him under section 302, P. P. C. He did not rely on the deposition of Sohawa P. W. as being that of a chance and interested witness. Anwar, though a mueen of the complainant‑party and Nur Muhammad a relation of the deceased were however relied upon particularly, because of the corroboration found in the recovery of the hatchet from the appellant. A learned Single Judge in the High Court found that the testimony of Sobawa could be relied upon as that of an independent witness, in addition to the deposition of the other two eye‑witnesses.. He, however, did not accept the evidence about the recovery of the hatchet as trustworthy and discarded the same. Leave to appeal was granted, in this appeal filed through Jail, to examine' the effect of acquittal of Shahbaz and Ikram who had allegedly direct motive, on the finding of guilt against the appellant, when the only corroborator piece of evidence namely, the recovery of hatchet was excluded as unreliable. Learned counsel having taken us through' the evidence, have reiterated the point noted in the leave granting order. He also pointed out certain other infirmities in the prosecution version to show that it was an unwitnessed occurrence, which took place in fields at a morning time and not in the manner deposed to by the eye‑witnesses. He also referred to certain documents showing that a compromise has been reached between the parties. The timings given by the doctor do not contradict the argument that it might have been the morning time when the occurrence took place. The dead body according to the inquest report was found in the rice field of one Muhammad Rafiq. Although effort was made to explain it away by saying that while placing it on the cot, the place was changed but it is also in evidence that at the time of arrival of the police the dead body was found at the place where the deceased had fallen after receiving the injury. All this is more than enough to show that the deceased was attacked when he was in the field and not at the shop of the cobbler. All eye‑witnesses deposed that deceased was attacked from behind but the doctor opined that the peculiar nature of solitary wound on the head of the deceased was inflicted from the front side. It is in evidence that the deceased was given the blow when he was sitting on the ground. It is not unlikely then that the occurrence took place when the deceased was sitting in the field and the assailant, whosoever he was, taking advantage of the victim being alone dealt him a very severe blow on the head and ran away and thus might not have been seen by anybody. It is in this light that the pointed cross‑examination of the investigating officer regarding the entries in the inquest report is to be viewed. It may be mentioned here that the leaves of the inquest report in this case are still joint in the middle and not torn apart. This shows that this document (Exh. P. J.) was sent to the doctor in its entirety as stated, at about raid‑day. Till then whatever was the position about the discovery of facts is stated in the "summary of facts" part of it which incidentally is also signed by the doctor. The investigating officer admitted that the names of the three eye‑witnesses are not mentioned therein except that Nur Muhammad is mentioned as an informant. The place of occurrence is also missing and so is the fact as to who amongst the three accused caused the solitary blow. Keeping in view the nature of eye‑witnesses account which is from partisan source, it will not be possible to ignore all these features. It is in this light that the plea of alibi of the two accused and comment thereon by the trial Court together with it the acceptance thereof by the police after due investigation thereof, has to be assessed vis‑a‑vis the nature of the acquittal of Shahbaz and Ikram namely whether it could be on mere benefit of doubt as stated, or in reality it was due to false implication. There was only one blow. Three persons were involved. Shahbaz was the most aggrieved person on account of the altercation and threat he allegedly gave, about 15 minutes before the occurrence to the deceased Despite that he came back empty handed and did not even catch hold of his so‑called e enemy. Keeping in view all these circumstances and the tenure of trial Court judgment, it is safe to hold that the acquittal in reality was due to false implication. If that is so, then Nawaz appellant could not be convicted without corroboration, which (the recovery of hatchet) disbelieved by the High Court is not available. Otherwise too we agree with the trial Court that the eye‑witnesses needed corroboration which now is not forthcoming. The appellant, therefore, is entitled at least to benefit of doubt. The appeal is accordingly accepted and he is acquitted. S. Q. Appeal accepted.