1990 P Cr (PLP)

(9)??????? An incised wound 3 c.m. x 1 c.m. x bone deep on outer aspect of left arm below injury No.8. (10) ???? An incised wound 6 c.m. x 2 c.m. x bone deep on back and lower part of left upper arm near elbow joint. (11) ???? An incised wound 3 c.m. x 1 c.m on back of left elbow joint x muscle deep. (12) ???? An incised wound 4 c.m x 1 c.m x muscle deep on back of the left elbow joint 1/4 c.m below injury No.11. (13) ???? An incised wound 7 c.m. x 2 c.m. x bone deep on outer aspect and upper part of left forearm. (14) ???? An abrasion 8 c.m. x 1/4 c.m. x muscle deep on back of left scapular region. (15) ???? Abrasion 14 c.m. x 1 c.m. on lateral aspect of left side of chest lower part. (16)????? Abrasion 7 c.m. x 1/2 c.m., 5 c.m. x 1/2 c.m., 6 c.m. x 3/4 c.m. on outer aspect of left thigh in an area of 10 c.m. x 9 c.m. (17)????? An incised wound 4 c.m. x 1 c.m. x muscle deep on outer aspect and upper part of left side. (18)????? Abrasions 6 c.m. x 1/2 c.m., 8 c.m. x 1 c.m., 7 c.m. x 1/2 c.m. outer aspect and middle of left thigh below injury No.17. (19) ???? An incised wound 19 c.m. x 3 c.m. x bone deep with bones cut on front and middle of right leg. All the injuries are ante-mortem and excepting abrasions they are caused with sharp-edged weapon. In the opinion of the doctor, death had occurred due to shock and haemorrhage,? injuries No.1 to 7 were sufficient to cause death in the ordinary course of nature and probable time between injury and death was instantaneous and between death and post-mortem examination was 9 hours.

7. Prosecution examined 12 witnesses in all in support of its case. Muhammad Ashiq complainant (P.W.1). Muhammad Ali (P.W.3) and Tufail (P.W.4) have narrated the occurrence. Muhammad Ashiq and Muhammad Ali PAV.s. aforesaid also deposed about the recovery of blood-stained hatchet effected from Toga and the motive part of the story. Dr. Shabbir Suleman (P. W. l t t) proved the injuries of the deceased. The appellants when examined under section 342, Cr.P.C. denied the allegations and professed innocence. Khuda Yar, appellant, produced Bashir Ahmed, D.S.P. (D.W.1) in his defence who stated to have recorded statements of some persons who supported the plea of alibi raised by Sardar and Khuda Yar appellants. He further stated that according to his investigation both the appellants were innocent. The other appellants did not produce any witness in defence.

9. Learned trial Court, on consideration of the material on record, found the appellants guilty and sentenced them accordingly, hence this appeal.

10. Learned counsel appearing on behalf of the appellants contends that circumstances in the case are interested and the only corroborative piece of evidence available on record is recovery of blood-stained hatchet from Toga appellant only which is fake because it could not be expected to carry blood stains at the time of recovery i.e. 25 days after the occurrence. Therefore, it is urged, that ocular account cannot be safely acted upon. He insisted that the police investigation is not above board for it, appears to have sent the hatchet Exh.P.l to the Expert after staining it with blood. He further submits that the evidence of the eye-witnesses does not inspire confidence and the deceased appears to have been done to death at dead of night when he was asleep for guarding his cattle and nobody else witnessed occurrence. Learned State counsel defends the impugned judgment.

11. The prosecution case hinges on the eye-witness account furnished by Muhammad Ashiq (P.W.1), Muhammad Ali (P.W.3) and Tufail (P.W.4), beside., evidence of motive and recovery of hatchet from Toga appellant.

12. Muhammad Ashiq complainant (P.W.1) is the son of the deceased. 11c stated the facts, according to his F.I.R. Exh.P.A. According to him the Dhari (place of occurrence) is two squares away from his house and that he and his father reached the Dhari from their house early in the fateful morning. He (complainant) started lifting cow-dung while his father (deceased) got busy milching buffalo when the appellant suddenly emerged there and attacked the deceased and killed him with their respective weapons. In his cross-examination he admitted that Muhammad Ali P:W. is deceased's first cousin and also his brother-in-law; that Dhari of Tufail P.W, is about 5 Acres away from there; that Yaqoob and Khan, brothers of Khuda Yar appellant were murdered about years ago and Muhammad Ali (P.W.3) and Sardar Ali deceased were challaned for these murders. He denied that the deceased was inimical to Shappu Sheikh or had illicit connections with his womenfolk. He admitted that their cattle are usually tethered at their Dhari during the night and nobody used to sleep there for guarding the cattle; that he saw the accused for the first time when Mansha, appellant, gave first blows to the deceased as a result of which the deceased fell down; and that each accused dealt two blows to the deceased. He, however, admitted that his statement was recorded on the spot when the Thanedar came there at 11/12 noon, and obtained his thumb-impression on the statement. He admitted that hatchet (P.1) recovered from Toga appellant was of common pattern but denied that his father slept alone at the Dhari for guarding his cattle on the night preceding the day of occurrence or that he had been done to death by unknown culprits.

13. The other two eye-witnesses namely Muhammad Ali (P.W.3) brother-in-?law of the deceased and Tufail (P.W.4) his cousin, have corroborated the version of Muhammad Ashiq complainant (P.W.1). Muhammad Ali P.W. stated in his cross-examination that his Dhari is about two squares away from the place of occurrence. He arrived at his own Dhari from his house on the morning of occurrence from where he went to the spot hearing the alarm raised by Muhammad Ashiq complainant (P.W.1) within 2/3 minutes. He saw the deceased miliching the buffalo, who, in his presence, was given first blow and also the last blow. He asserted that he stood at a distance of 4/5 Karams during the occurrence. He admitted that he did not point out to the police the field where he heard the alarm raised by Muhammad Ashiq complainant. According to him, the dead body was sent to the hospital 1-1/2 hours after the arrival of the police. He denied that D.S.P., Depalpur, investigated the case or had held Shappu etc. as responsible for the murder of the deceased.

14. Tufail (P.W.4) in his cross-examination stated that his Dhari is about 1-1/2 squares away from the place of occurrence. He got up at sunrise time and went to his Dhari where he stayed for about an hour and then went towards his wheat field about 7 Acres away from the spot, where he heard a noise. He ran in that direction reaching the place of occurrence within 5 minutes and saw the occurrence. He stated that he did not raise any Lalkara or made any noise. He asserted that the deceased was given blows after he had reached the spot. He admitted that statements of Muhammad Ali and that of Muhammad Ashiq complainant were recorded at the place of occurrence.

15. Recovery of blood-stained hatchet (P.1) from Toga appellant has been proved by the eye-witnesses, Muhammad Ashiq (P.W.1) and Muhammad Ali (P.W.3).

16. It may be at once stated that the F.I.R. in this case deserves no weight since it had been admitted by Muhammad Ashiq (P.W.1), the maker of the F.I.R. and Muhammad Ali (P.W.3), that F.I.R. was recorded on the spot which means that it was recorded after preliminary investigations. The eye-witnesses are closely related to the deceased and existence of enmity between the parties is not denied by the complainant. Admittedly both parties got murder cases registered against each other, therefore, the eye-witnesses are interested. Their evidence cannot, therefore, be safely acted upon unless corroborated by other independent evidence capable of removing all doubts in the mind of the Court about complicity of the accused/appellant. Recovery of blood-stained hatchet from Toga appellant and the motive are pressed into service as corroborative evidence. Needless to say that in this case the motive can be taken as a circumstances supporting the prosecution provided the eye-witnesses presence at the time of occurrence is established beyond doubt.

17. Regarding ocular evidence, I would express at the outset that presence of Muhammad Ali (P.W.3) at the time of occurrence is doubtful for the reason that g the appellants had rancour against him as they had against Sardar Ali deceased i.e. both of them were accused of murdering Yaqoob and Khan, brothers of Khuda Yar appellant. Therefore, had appellants been the assailants of the deceased, then they would not have spared Muhammad Ali P.W. as well if he was found near or around the place of occurrence. As for the claim of Tufail (P.W.4) that he reached the spot from a field 1-1/2 squares away and on hearing the C alarm and then saw the first blow being given to the deceased by the appellants is simply incredible. Muhammad Ashiq complainant son of the deceased clearly stated that he saw the appellants when Mansha gave the first injury to his deceased father which means that Muhammad Ashiq P.W. raised alarm after appellant started inflicting blows to the deceased. Therefore, the witness could not see the infliction of first blow to the deceased as claimed by him. Rather the assailants, whosoever they were, would have disappeared before Tufail P.W. could have reached the spot from 1-1/2 squares distance. The presence of Muhammad Ashiq (P.W.1), also is not established beyond doubt. Had he been present at the place of occurrence then he being son of the deceased would have physically intervened to rescue his father and received injuries during the process. According to Ahmad Ali (P.W.2) he reached the spot at 8 a.m. after learning about the murder and found Muhammad Ali etc. present on the spot. He has not named Muhammad Ashiq complainant, Muhammad Ali and Tufail P.Ws. as the persons present near the dead body. Ahmad Ali P.W. further stated that it was he who took the dead body to the hospital. The deceased has suffered as many as 19, injuries. I suggest that the assailants had a free hand to deal with him leisurely and to their satisfaction without any body being near the place of occurrence.

18. In the absence of reliable ocular evidence, the evidence of recovery of(_E weapon and motive is rendered of no use.

19. For all these reasons I would say that there is no reliable evidence on record connecting the appellants with the commission of murder of Sardar Ali deceased. Resultantly conviction and sentences recorded by the lower Court is not sustainable. In the result I would allow this appeal, set aside their conviction and sentence and acquit them. They are on bail. They are discharged of their bail bonds. N.H.Q./K-229/L????????????????????????????????????????????????????????????????????????????????? Appeal allowed.