1997SCMR611 (PLP)

3. Case of the prosecution in nutshell is that Nazir complainant and his brother Mushtaq deceased used to deal in the purchase and sale of milk. On the fateful day, they purchased the milk from Chak No. 9/8‑AR and were proceeding to Mian Channu on bicycles. On the way, they stopped near Chak No.13/8‑AR to give milk to Sardar Ali and Bashir Ahmed P.W. In the meanwhile, Muhammad Sadiq appellant armed with Kassi, Munir Ahmad, armed with Pahura, Maqbool armed with a hatchet, Manzoor carrying a Subbal and Rafi empty‑handed, came there. Rafi raised a Lalkara that Mushtaq tie taught a lesson for supporting the accused in the murder case of Hakim Ali. Muhammad Sadiq then caught hold of the left hand of the deceased and Munir gave him a blow with Pahura on the left side of his forehead. Thereafter, Maqbool gave five hatchet blows hitting the deceased on the forehead, right side of the head, above the right ear and on the left temporal bone. Muhammad Manzoor also caused four injuries with Subbal on the back of right shoulder, left wrist, chest and on the back of right hand of the deceased. Mushtaq fell down and became unconscious. The deceased was then dragged by all the accused to the cattle‑shed of the appellant where the appellant gave a Kassi blow on his neck and chopped it off his body. The motive set up by the prosecution was that seven months prior to the occurrence, Muhammad Ramzan, a brother of the complainant had murdered Hakim Ali (maternal uncle's son of the appellant and Munir accused) and Mst. Shahida (a cousin of the complainant and the deceased) when he saw them in compromising position. Mushtaq deceased, it was alleged, used to pursue the case of his brother and it was on account of this grudge that he was done away with by the appellant and his co‑accused. ,

4. It appears that during the investigation of the case conducted by different Police Officers, Muhammad Rafi, Manzoor and Maqbool accused were found innocent and they were got discharged from the Ilaqa Magistrate. The complainant then filed a private complaint against these three accused persons who were summoned by the triai Court and tried alongwith the appellant and Munir accused challaned by the police.

5. To prove its case, the prosecution relied upon the ocular testimony furnished by Nazir Ahmad complainant P.W.5 and Bashir Ahmad P.W.6; the evidence of motive; medical evidence and the recoveries of weapons of offence (blood‑stained Kassi and Pahura) from the appellant and Munir accused, the recoveries of their blood‑stained shirts and of blood‑stained earth as also of some other articles from the place of occurrence. The accused when examined under section

342. Cr.P.C. denied the prosecution case and took the plea that they were falsely involved due to previous enmity. The deceased was murdered by some unknown persons as he had many enemies and ltis dead body was thrown in an abandoned lhata.

6. Learned trial Court accepted the presence of both the eye‑witnesses at the time of occurrence but since they were closely related to the deceased, Nazir Ahmad being his real brother and Bashir Ahmad his paternal cousin he though it fit to look for corroborative evidence which he found as against the appellant and Munir accused, in the motive, the medical evidence, and the recovery of the dead body and blood‑stained earth from the ' Bhana' owned by them though with reference to medical evidence, it was observed by the learned Judge that "there are several discrepancies in‑between the medical evidence and oral account but it corroborates the oral account of material points. "Recoveries of blood‑stained shirts from the persons of the said two accused were not believed saying that "the story of wearing blood‑stained shirts on the 6th day of the occurrence is quite unnatural and is not believed". Recoveries of weapons of offence, Pahora' and ' Kassi' too were discarded by the learned trial Court for the reason that Muhammad Afzal P.W.4 who supported these recoveries was brother‑in‑law of the deceased and further the recoveries were effected from the residential houses which were not proved to be in exclusive possession of the accused. Be that as it may, the learned trial Court convicted the appellant and Munir accused under section 302/34, P.P.C. and sentenced them as aforesaid. Lesser penalty was awarded to Munir accused as no fatal injury was attributed to him. He was said to have caused only a simple injury to the deceased. The other three accused namely Muhammad Rafi, Manzoor and Maqbool were, however, acquitted as they were found innocent during the investigation and were discharged by the Ilaqa Magistrate and no recovery was made from them nor was there any other independent evidence to corroborate the testimony of eye witnesses involving them in the crime.

7. On appeal filed by the convicts and the reference received from the trial Court for confirmation of death sentence of the present appellant, the learned Judges in the High Court upheld the conviction of the appellant and confirmed his death sentence but acquitted Munir accused holding that "Notwithstanding the fact that we have believed the claim of the eye‑witnesses that they had witnessed the occurrence, we do not consider it safe to maintain the conviction of Munir under section 302/34, P.P.C., as, in his case, the medical evidence clearly contradicts the ocular account. He was alleged to have given a blow with the Pahura on the forehead of the deceased. The Pahura is made of wood. The injury resulting from a blow with Pahura could (sic) have been an incised wound. The deceased was found to have suffered only incised injuries on the head region of the deceased. Although the doctor had found multiple abrasions resulting from blunt blow, but they were on the chest and right shoulder. In view of the clear contradiction of the ocular account and the medical evidence, we are inclined to extend the benefit of doubt to Munir by way of abundant caution".

8. Leave in this case was granted "to examine whether the acquittal of the other co‑accused on the same evidence does not react adversely on the whole / prosecution case and whether in the form of motive and the number of injuries attributed to the petitioner a case for mitigation in the sentence of death was not made out.

9. Learned counsel appearing in support of this appeal assailed the appellant's conviction by contending that both the eye‑witnesses whose testimony has been believed by the Courts below were highly interested witnesses being close relatives of the deceased and having a background of enmity against the appellant. Not only that, on the same evidence, three co- accused of the appellant were acquitted by the trial Judge and Munir accused, the brother of the appellant has been acquitted by the High Court. In the circumstances, it was contended by the learned counsel ‑that the ocular evidence required exceptionally strong and independent corroboration to sustain the conviction of the appellant on a capital charge but the learned Judges in the High Court did not look for such a corroboration nor was any corroboration forthcoming from the record. It was submitted that the incriminating recoveries have been disbelieved by both the Courts below and medical evidence, too, could not furnish any corroboration as there were serious discrepancies between the ocular account of the occurrence and the medical evidence. Learned counsel pointed out that according to the complainant P.W.5, the appellant had inflicted one blow i.e. injury No.1 which severed the neck of the deceased from his body but according to the Doctor P.W.1, injury No.1 was the result of more than one blows. Learned counsel further contended that the prosecution story of dragging the deceased to the ' Bhana' of the accused was not believable because medical evidence shows that the deceased was nearly killed by injuries Nos.3 and 4 which according to the medical evidence were sufficient individually and collectively to cause his death. Learned counsel argued that there was no point in dragging the deceased to ' Bhana'. If the appellant was to inflict any blow to the deceased, he could have done so on the road side where first part of the occurrence allegedly took place. Learned counsel pointed out that there was no trail of blood from the place of first part of occurrence to ' Bhana' which, too, belies the prosecution version. Learned counsel for the respondent, of course, supported the impugned judgment of the High Court.

10. We have considered the submissions of the learned counsel for the appellant in the light of the evidence on record. It is an admitted position that both the eye‑witnesses are closely related to the deceased. As stated above, Nazir Ahmad complainant/P.W.5 is the real brother of the deceased while the other eye‑witness Bashir Ahmad P.W.6 is his first cousin. Not only that, there was also a background of enmity between the complainant party and the accused persons. It was in fact the prosecution's own case that some eight months prior to the murder of Mushtaq deceased, Hakim Ali, a cousin of the appellant was murdered alongwith Mst. Shahida Parveen and in that case, Muhammad Ramzan, a brother of Mushtaq deceased and his other close relatives were challaned. In the circumstances, learned counsel for the appellant was right in contending that the ocular testimony being of partisan and hostile character required independent corroboration to sustain the conviction of the appellant. The rule requiring corroboration is doubly attracted in the instant case as all the co‑accused of the appellant who were specifically involved in the case by the eye‑witness attributing definite inculpatory role to them have been acquitted by the Courts below. As noted above, learned Trial Judge finding it necessary to look for corroboration of the ocular testimony found it in the motive, the medical evidence and the recovery of the blood‑stained earth and the dead body of the deceased from the ' Bhana' of the appellant. The learned Judges of the High Court, however, did not seem to have specifically addressed themselves to the question of need for corroboration and they appeared to have placed implicit reliance on the testimony of eye‑witnesses qua the appellant even though they found "clear contradiction of the ocular account and the medical evidence" in the case of the appellant's brother and co‑accused Munir who was acquitted for that reason. It is true that the motive set up by the prosecution has been accepted by the learned Judges of the High Court though they have not specifically held that it was corroborative of the ocular testimony. Even otherwise, the motive as alleged namely that the deceased was pursuing the case of his brother Muhammad Ramzan who alongwith others was facing trial for the murder of Hakim Ali, a cousin of the appellant and on account of this grudge, he was done to death by the appellant and his co‑accused, was not good enough to be of any corroborative value as it is admitted by Nazir Ahmed P.W.5, who too, is a brother of Muhammad Ramzan that "I had also been visiting the Court in connection with the trial of the previous murder case relating to the murder of Hakim Ali. I was not assaulted during the occurrence". Yet another circumstance which renders the motive part of the‑story still weaker is that the father and two real uncles of Hakim Ali deceased were very much alive who should have been more aggrieved of the conduct of Mushtaq deceased if his pursuing the case of his brother could at all be a cause for grievance but they never assaulted him nor did they participate in the occurrence. Medical evidence, too, did not corroborate the eye‑witness account qua the appellant. It in fact contradicted the prosecution case. According to the prosecution, the appellant had inflicted only one 'Kassi' blow to the deceased which separated his neck from the body. It was so stated by the complainant when appearing. as P.W.5 but the Doctor who had conducted post‑mortem examination of the body of the deceased stated categorically that injury No.1 (attributed to the appellant) was the result of more than one blow. Significantly enough, P.W.6 obviously in order to bring the prosecution case in line with the medical evidence stated that the appellant "dealt 2/3 blows on the neck of Mushtaq with a ' Kassi' and separated the same from the body". In fact, there existed several discrepancies between the ocular account and the medical evidence as observed by the learned Trial Judge and one very serious contradiction with respect to ' Pahura' blow attributed to Munir accused was noticed by the learned Judges themselves. Adverting to the evidence of recoveries, suffice it to observe that the recoveries of incriminating articles such as blood‑stained shirts of the appellant and of his brother/co‑accused Munir and the weapons allegedly used by them which could possibly furnish the requisite corroboration to the ocular evidence have been disbelieved both by the trial Court and learned Judges of the High Court. The recovery of blood‑stained earth and the mere fact that the dead body was found in the ' Bhana' of the appellant do not in our view provide sufficient corroboration in the facts and circumstances of the case.

11. We also agree with the learned counsel that the story of dragging the deceased to ' Bhana' was not quite believable. It is in evidence that the deceased was given as many as ten injuries on the roadside and according to the medical evidence, two of those injuries were sufficient individually and collectively to cause his death. The deceased as rightly contended by the learned counsel was almost killed on receiving the aforementioned injuries and there was no good reason at least none has been disclosed on record as to why should he have been dragged to ' Bhana' which according to the evidence was situate in ' Abadi'. Another circumstance which belies this part of the prosecution story is the absence of any trail of blood from the mettalled road to the ' Bhana . It is to evidence of P.W.6 that the deceased started bleeding profusely at the place of occurrence on the roadside and it continued till the arrival at the 'Bhana'. According to this witness, "The blood of deceased was falling on the ground when he was being dragged to the 'Bhana'." The Investigating Officer P.W~.8, however, did not mention about the presence of any trail of blood either in the site plan or in his inspection note and stated that "If there had been any such trail of blood I would have mentioned the same in my inspection note as well as in the site plans". To the same effect is the statement of the Draftsman who appearing as P.W.7 has deposed "I have not mentioned any trail of blood from point No.1 to point No.6 in the site plan because the same were not disclosed to me either by the P.Ws. or by 1.0." We have also not been persuaded to accept the prosecution version that the appellant gave the Kassi' blow to the deceased at the ' Bhana'. If the appellant armed with a ' Kassi' was present with his co- accused where the first part of the occurrence allegedly took place on the roadside, he would certainly have caused injuries to the deceased there and then. There is no explanation whatever as to why he refrained from inflicting blows to the deceased where his co‑accused had caused him as many as ten injuries. Viewed in this context, the part attributed to the appellant is highly improbable,

12. Upshot of the above discussion is that we do not consider it safe to maintain the conviction of the appellant on a capital charge on the uncorroborated testimony of interested witnesses. This appeal is, therefore, allowed, the conviction and sentence of death awarded to the appellant is set aside and it is directed that he shall be released forthwith if not wanted in any other case. The appeal was in fact allowed by a short order and reasons have been recorded in this judgment.` N.H.Q./M‑3326/S Appeal allowed.