1987 PCr (PLP)

IJAZ NISAR, J.‑‑Tariq (20), his father Ghulam Muhammad (70) and his uncle Muhammad Ali (75) were tried for the murder of Allah Ditta (18). The learned Additional Sessions Judge, Gujranwala by his judgment, dated 10‑9‑1983 convicted Tariq appellant under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs.10,000 or in default to undergo two years' R.I. Ghulam Muhammad and Muhammad Ali accused were given the benefit of doubt and acquitted. Tariq appellant has challenged his conviction and sentence. The learned trial Court has also made a reference for confirmation of his death sentence while Muhammad Nazir complainant has filed a revision against the acquittal of Ghulam Muhammad and Muhammad Ali. All these matters are being disposed of by this judgment.

2. The prosecution case is that about two months prior to the occurrence Arshad, brother of Muhammad Arif P.W.7 had given Sota blows to Meraj Din son of Muhammad Ali accused (since acquitted). Though a compromise had been effected between them through respectables of the village but the accused bore a suspicion that Arshad had beaten Meraj Din at the instance of Allah Ditta deceased and Muhammad Arif P.W. On 23‑10‑1980 Allah Ditta deceased accompanied by Muhammad Nazir P.W. 6, Muhammad Arif P.W.7 and Ghulam Murtaza P.W.8 had gone to the fields for planting garlic. After that they left homewards. Allah Ditta deceased, Muhammad Arif and Ghulam Murtaza P.Ws. were riding a Rehra while Muhammad Nazir P.W. was going on foot. When they reached near the Haveli of the accused, Tariq appellant armed with a Chhuri. Ghulam Muhammad accused armed with a hatchet and Muhammad Ali accused empty‑handed came out. Muhammad Ali raised a Lalkara to the effect that Allah Ditta and Muhammad Arif should not be spared whereupon Ghulam Muhammad accused tried to inflict a hatchet blow on Muhammad Arif P.W.6 but he escaped by receding. Tariq appellant caused a Chhuri blow to Allah Ditta deceased on his chest as a result of which he died instantaneously. The accused then fled away from the spot alongwith their weapons. Besides the above‑mentioned persons, Muhammad Ashraf C.W.I had also witnessed the occurrence. He was given up by the prosecution as unnecessary but was examined as a Court witness.

3. Muhammad Nazir P.W.6 left for Police Station Kamoke and lodged F.I.R. Exh.P.C. on the same day at 1‑5 p.m. The distance between the spot and the police station being four miles. After recording the F.I.R. Muhammad Ashraf S.I. proceeded to the spot, prepared the inquest report Exh.P.E. and injury statement Exh.P.F. of the deceased. He arrested all the accused on the same day. Tariq appellant while in police custody led to the recovery of blood‑stained Chhuri P.3 from underneath an iron box lying in a room of his house. It was seized through memo. Exh.P.H., dated 23‑ 10‑ 1980 attested by Abad Ali and Bashir Ahmad P.Ws. (not examined) and S.I. Muhammad Ashraf P.W.10. Human blood was found on the Chhuri vide Serologist's report Exh.P.M. After completing the investigation he challaned the accused.

4. Dr. Gulzar Ahmad P.W.9 conducted the post‑mortem examination on the dead body of Allah Ditta deceased (18) on 24‑10‑1980 at 1‑15 p.m. and found the following injury on his person:‑

"Incised wound 2 c.m. x 1 c.m. x going deep at union of abdomen and thorax in the middle between rib margins:" On internal examination it was found that wound had passed through the right side of lower end of sternum which had entered the pericardial cavity and right pleural cavity. Right lung was injured. Pericardium and heart were also injured at the right side. The death was due to shock and haemorrhage as a result of the above injury which was ante‑mortem. The injury was caused with a sharp‑edged weapon. The probable time between the injury and death was immediate and that between death and post‑mortem about 24 hours.

5. The appellant denied the prosecution allegations. Muhammad Ali accused stated that he had been implicated on account of his close relationship with the other accused so that there was no one to pursue the case. Ghulam Muhammad accused also made a similar statement. Tariq appellant denied the occurrence, the motive and the recovery of Chhuri P.3 at his instance and made a statement in writing Exh.D.D. He also submitted certified copies of the statements of Bashir Ahmad and Abad Ali in case under section 13 of the Arms Ordinance and attested copies of Khasra Girdawari and of Jamabandi. The statement Exh.D.D. is to the following effect:‑

No oral evidence was examined in defence.

6. The prosecution examined ten witnesses to prove its case. Of them, Muhammad Nazir P:W.6, Muhammad Arif P.W.7 and Ghulam Murtaza P.W. 8 furnished the ocular account. Dr. Gulzar Ahmad P.W. 9 conducted the post‑mortem examination on the dead body of Allah Ditta deceased while Muhammad Ashraf S.I. carried out the investigation. The other witnesses were of formal nature. Muhammad. Ashraf cited as an eye‑witness in the F.I.R. was given up as an unnecessary but was examined as a Court witness. While appearing as Court witness he stated that on hearing a noise from the Haveli of Tariq appellant he went there and saw Allah Ditta deceased and Muhammad Arif P.W. and one boy whose name he did not know abusing Tariq appellant. Within his sight Allah Ditta deceased and Muhammad Arif P.W. grappled with Tariq and threw him on the ground. While lying underneath, Tariq appellant gave a knife blow to the deceased. Allah Ditta deceased had asked Muhammad Arif P.W. to lift Mst. Sughran, sister of Tariq appellant. After inflicting injury on the deceased the accused ran away. According to him the occurrence had taken place inside the Haveli of Tariq appellant.

7. Relying on the testimony of the eye‑witnesses, the motive and the recovery of Chhuri at the instance of Tariq appellant, the learned trial Court convicted and sentenced the appellant as described above. Ghulam Muhammad and Muhammad Ali accused were acquitted on the ground that being old aged persons and close relations of_ Tariq appellant they might have been falsely roped in and further that no injury either to the deceased or to any of the P.Ws. had been attributed to them.

8. Criticising the judgment learned counsel for Tariq appellant has argued that all the three eye‑witnesses were interested against the appellant and there is absolutely no corroboration of their testimony. Barkat Ali and Muhammad Ashraf cited as eye‑witnesses in the F.I.R. were not examined. Abad Ali and Bashir Ahmad, the public witnesses of recovery of blood‑stained Chhuri P.3 at the instance of Tariq appellant were given up as having been won over. Muhammad Ashraf cited as an eye‑witness was examined as a Court witness and he supported the defence plea put forward by Tariq appellant, his father Muhammad Ali and uncle Ghulam Muhammad were falsely roped in, it is stated.

9. Conversely learned counsel for Muhammad Nazir complainant has argued that Ghulam Muhammad and Muhammad Ali accused were acquitted on flimsy grounds. Due weight was not given to the mentioning of their names in the F.I.R. which was promptly lodged. They shared the common intention with Tariq appellant and had a strong motive against the deceased, it is added.

10. The motive alleged by the prosecution seems to be obscure and far fetched. Tariq appellant was not directly concerned with the beating given to Meraj Din. He had been beaten up by one Arshad, brother of Arif P.W.7. The prosecution case is that the accused suspected that Arshad had beaten Meraj Din at the instance of Allah Ditta deceased and Arif P.W. Had it been so the target would have been Arshad and not the deceased. The deceased had not beaten Meraj Din son of Muhammad Ali nor was he alleged to be present at the relevant time. The prosecution has not brought anything on the record to show the cause of assault on Meraj Din or the motive had by the deceased against him. Muhammad Nazir P.W.6 is a first cousin of the deceased while Ghulam Murtaza P.W. 8 is real brother of the deceased. Muhammad Arif though not related to the deceased is said to be a servant of Muhammad Nazir complainant. Muhammad Ashraf and Barkat Ali the unconnected witnesses cited in the F.I.R. were not examined by the prosecution. No witness from vicinity of the occurrence was produced. The presence of Muhammad Nazir complainant at the relevant time appears to be improbable. He is a businessman and runs an ice factory. Being summer season the ice factory must have been working and as such his accompanying the deceased for planting garlic and following the Rehra on foot appears to be highly improbable. It is, therefore, not considered safe to place implicit reliance on the testimony of eye‑witnesses examined by the prosecution in the absence of any positive corroboration because of an attempt on their part to falsely implicate father and uncle of Tariq appellant. If the accused had really intended the murder of Allah Ditta, Muhammad Ali would not have gone empty‑handed just for raising the Lalkara. Furthermore, Ghulam Muhammad would not have stood idle after his attempt to cause a hatchet injury to Arif had failed. He could have tried again and struck blow either to Arif or to the deceased but the fact that no blow is attributed to him throws a cloud of suspicion on his participation in the offence. So far as Tariq appellant is concerned, there is no corroboration of the testimony of the eye‑witnesses. A blood‑stained Chhuri is said to have been recovered at his instance in the presence of Abad Ali and Bashir Ahmad but both the public recovery witnesses were not examined by the prosecution and were given up as having been won over. The recovery was proved only through the evidence of S.I. Muhammad Ashraf P.W.10. Since he was the investigating Officer and had remained associated with the investigation throughout the case, we do not consider it safe to place implicit reliance on his sole testimony. No doubt the testimony of police official is as important as that of another person but when out of three witnesses two are not examined it puts the Court on caution to look for some corroboration of such witness which is not available in the present case. This corroboration was all the more necessary when the eye‑witnesses had been disbelieved qua two co‑accused namely Ghulam Muhammad and Muhammad Ali. The, recovery of Chhuri at the instance of Tariq appellant cannot be said to lend any corroboration to the ocular testimony because it itself required corroboration and it is well‑settled that a piece of evidence itself requiring corroboration cannot corroborate other pieces of evidence. For the reasons discussed above we are of the opinion that the prosecution has failed to prove its case against Tariq appellant beyond all reasonable doubt. In view of the failure of the prosecution to prove its case we need not go into the truthfulness or otherwise of the defence plea raised by Tariq appellant because onus always lies on the prosecution to prove its case. Accordingly, we accept the appeal, set aside the conviction and sentence of Tariq appellant and acquit him of the charge. He shall be set at liberty, forthwith, if not required in any other case. The death sentence awarded to him is Not confirmed. In the light Pf the above discussion the revision automatically fails and is dismissed accordingly. S.A./T‑6/L Appeal accepted.