1984 PLP 1467 (MLD)

All the organs of the body were healthy. The stomach contained about four oz. of semi-digested food material. The intestines contained gases and faecals. The bladder contained two oz. of urine. In his opinion the death occurred due to haemorrhage and shock as a result of injuries Nos. 1 to

4. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were individually fatal. All the injuries were caused with sharp-edged weapons and were ante-mortem. The death occurred immediately after the injuries and the probable duration between the death and post-mortem was between 12 and 18 hours.

6. In support of its case the prosecution at the trial relied upon the following pieces of evidence-- (i) the ocular evidence furnished by Muhammad Akbar P.W.6 and Muhammad Hanif P.W.7 read with the F.I.R. Exh. P.H. lodged by Muhammad Hayat complainant who had died before the commencement of the trial; (ii) the evidence as to motive given by Muhammad Akbar P.W.6 and Muhammad Hanif P.W.7; (iii) the recoveries attested by Muhammad Akbar P.W.6, Muhammad Hanif P.W.7, Muhammad Irshad S.I. P.W.9 Ihsan-ul-Haq S.I. P.W.10 and Ahmad Khan and Sadiq Hussain who attested the recovery as to hatchet but were not produced; (iv) the medical evidence furnished by Dr. Nazir Ahmad Anwar P.W.1. The remaining witnesses were formal witnesses.

7. At the trial the appellant and the acquitted co-accused in their statements under section 342, Cr.P.C. admitted their relationship inter se. Muhammad Iqbal appellant however refuted the allegations levelled against him. As to motive ire stated that he was a suckling child at the time of the death of his father and he never knew who murdered him and who was sentenced. He was a student of 6th class at the time of the present occurrence. He disowned the recovery of the hatchet at his instance. He further stated that on account of enmity the witnesses had deposed against him. In an answer to a question he stated:-- "I am innocent. I was a student of sixth class at the time of occurrence. I am the eldest son of my father and I have been involved due to the grudge borne out against us by the complainant party because of their conviction in the murder case of my father". He led no evidence in defence except the production of a pedigree-table Exh. D.D. to show the relationship of the deceased with the P.Ws. Mst. Rasoolan acquitted co-accused the mother of the appellant, similarly denied all the allegations and stated: "The deceased was of a bad character, he had divorced his wife, he was carrying on illicit connection with Mst. Fatima wife of Saee Mochi and he was murdered for this reason. My husband was murdered and the complainant party was convicted. For the same, they bore grudge against us and to ruin the future of our family, they have involved myself anti my elder son Muhammad Iqbal".

8. The trial Judge dealt with the evidence of motive in paragraph No.7 of his judgment and believed the same by observing:

The social conditions prevailing in the society are such that it is very seldom that near relatives of a murdered person forget the murder. On the other hand it has very often happened in this part of the country that a murder in a village/family gives rise to successive murders committed to take revenge of the earlier one. Further it is something personal for the relatives of a deceased to take revenge for him or to forgive and to forget". He analysed the ocular evidence of Muhammad Akbar P.W.6 and his son Muhammad Hanif P.W.7 in paragraphs Nos. 11 and 12 of his judgment. He believed the testimony of those witnesses and repelled the suggestions put on behalf of the appellant. Similarly while relying on the statement of the Investigating Officer only he sought corroboration from the recovery of blood-stained hatchet at the instance of the appellant although the witnesses who attested the ..and ultimately convicted the appellant. However he gave the benefit if doubt to Mst. Rasoolan Bibi co-accused and acquitted her.

9. The learned counsel for the appellant has contended that no reliance could be placed upon the testimony of Muhammad Akbar P.W.6 and Muhammad Hanif P.W.7 because they were the chance witnesses and as independent persons though present had not been produced. The same evidence which was rejected qua Mst. Rasoolan acquitted co-accused, could not be acted upon without corroboration. The deceased was in the house of Saee Muhammad Mochi when he was done to death by someone since he had illicit relations with the wife of the aforesaid Saee Muhammad therefore, in the month of June there was no question of the deceased sleeping in the compound of the house of Saee Muhammad Mochi so as to provide the deceased with any shadow to sleep. According to the learned counsel there was delay in the lodging of the F.I.R. The occurrence took place at Peshi Wela while the report was made at 4-00 p.m. Though both the alleged eye-witnesses have denied the relationship with the complainant, yet the pedigree-table Exh. D.D. produced in defence amply shows that Muhammad Akbar P.W. is related to the complainant through his step-mother Aisha who is the first cousin of the father of P.W. Muhammad Akbar. The house of Saee Muhammad Mochi was bounded by walls as such it cannot be said that the witnesses could observe from the place they were shown to have done so. The investigation was dishonest. Muhammad Irshad P.W.9, the Investigating Officer, had said in his statement that he had not recorded the statements of the inmates of the house of Saee Muhammad and after consulting the case diary he stated that he had recorded the statement of the inmates of the house of said Saee Muhammad Mochi. In the inquest report as to the weapon used it was simply mentioned that the weapon used was a sharp-edged, that means that the F.I.R. was not recorded by that time. As to the quantum of sentence the learned counsel has addressed that the appellant was born on 5-12-1960, according to the birth entry as led in defence, his age was 15 years 5 months and 3 days on the day of occurrence, therefore, this can be treated as a mitigating circumstances so as to reduce his sentence of life imprisonment to a lesser one.

10. The learned counsel for the State in reply has submitted that the motive has been fully proved by the evidence. The occurrence has been proved by the ocular account towards which the medical evidence as well as the evidence of recovery stand as corroboratory. The prosecution case stands as fully proved. As to the sentence the appellant has already been dealt with leniently as the capital sentence has been withheld by the learned Additional Sessions Judge and there is no concept under section 302, P.P.C. for further reducing the sentence because the appellant happened to be a minor one at the time of the commission of the offence.

11. It was stated by Muhammad Akbar P.W.6 that he alongwith his son Muhammad Hanif P.W. had gone to Mandi Baha-ud-Din in the morning of the day of occurrence for purchasing cotton seeds, Khall, etc. They were returning from Mandi Baha-ud-Din and were at a distance of one furlong from their village at Peshi Wela when Muhammad Hayat complainant met them and proceeded alongwith them. They saw Muhammad Iqbal appellant inflicting injuries with a hatchet upon the deceased at the shop of Saee Muhammad Mochi. On their seeing injured Muhammad Inayat was breathing his last and he expired at the spot, Mst. Rasoolan co-accused was standing by the side of her son Muhammad Iqbal appellant and was also urging her son to take the revenge of the murder of his father. They were 10/12 Karams short when Muhammad Iqbal had started inflicting injuries to the deceased. On their reaching near the appellant and his co-accused ran towards their house which was situated nearby. The appellant had taken away the hatchet with him. Muhammad Inayat deceased had received four injuries on his face and neck In his cross- examination Muhammad Akbar P.W. admitted that their Dera was at a distance of 1 miles from the village where they had their cultivation. Muhammad Hanif P.W.7, stated that he and his father Muhammad Akbar P.W. had gone to Mandi Baha-ud-Din to purchase cotton seeds and Khall, etc. After they returned from Mandi Baha-ud-Din and reached near the village they saw Mst. Rasoolan and Muhammad Iqbal appellant going ahead. Mst. Rasoolan co-accused urged her son Muhammad Iqbal appellant to take the revenge of the murder of his father. They were at a distance of one furlong from the village when they saw the two accused. Muhammad Hayat complainant had also met them on the way at a distance of one furlong from the village. The two accused were going near the sugarcane fields towards the house of Saee Muhammad Mochi. Muhammad Iqbal appellant inflicted four injuries with his hatchet on the neck of Muhammad Inayat deceased who was lying on a cot at the shop of said Saee Muhammad which was in his house. After murdering Muhammad Inayat the appellant and his co-accused went away. Muhammad Iqbal appellant took away with him his hatchet. Now it is on the record that these witnesses were putting up at a distance of 1 miles from the village in which the occurrence took place. They chanced to pass by the village Garha Hashim since they were returning after having made certain purchases from Mandi Baha ud-Din, so it was all per chance that they met Muhammad Hayat complainant (since dead) and they observed the appellant killing the deceased, therefore, they are nothing but chance witnesses. This is established on the record though the P.Ws. denied that they were related to the complainant and as such with the deceased through Mst. Aisha, the step-mother of the complainant.

12. It is a cardinal principle in the matter of appreciation of evidence that when a prosecution case is made to depend upon chance witnesses belonging to another locality, then their testimony is to be construed strictly as to their presence and the account which they professedly witness. Their testimony is acted upon only if from the consistency of their account it strikes to the mind that they are truthful witnesses, as such, worthy of belief and credit or there happens to be any other thing within the circumstances of the case which confirms their presence and the truthfulness as to their testimony so as to assure that the account of evidence rendered by them can be depended upon towards the conviction of a person. This case is being proceeded with keeping this principle in mind. Though the maker of the F.I.R. had not appeared as a witness yet the F.I.R. and its contents were proved by Muhammad Irshad S.I. (P.W.9) as having been made by Muhammad Hayat complainant, so it can be looked into for a limited purpose that on which facts the machinery of law was moved and by whom, as to who were the witnesses who were named in it and how they came across and what facts were alleged to have been witnessed by them from the beginning to the end. This is going to be done by keeping in view that an F.I.R. can be invoked either by the maker in corroboration of his evidence or by the defence to contradict the maker of the F.I.R when his statement at the trial conflicts with it.

13. Had Muhammad Hayat complainant been alive and produced as a witness he would have decidedly stuck to the facts as he narrated for the purposes of the F. I. R. then in that event in view of his evidence. it could have been said that the above said witnesses had not said anything as to the facts as stated by him, that when they reached in front of the shop of Saee Muhammad Mochi there the appellant was watering his fields and his mother Mst. Rasoolan (acquitted co-accused) stood near by him and within their sight all of a sudden Muhammad Iqbal appellant who had 8 hatchet in his hand and Mst. Rasoolan as empty-handed ran towards the shop of Saee Muhammad Mochi where Muhammad Inayat deceased was sleeping and they would have been found as lacking the full perspective of the facts preceding the occurrence and that would have effected the value of their evidence.

14. The testimony of Muhammad Akbar and Muhammad Hanif P.Ws. as it is, is not consistent with each other's as to the perceiving of the appellant and the co-accused by them and the facts preceding the killing and following that, therefore, their presence at the place of occurrence is doubtful. As noticed, earlier in para. 7 of this judgment Muhammad Akbar and Muhammad Hanif P.Ws. are also witnesses of the motive and part of the recoveries. In the circumstances it is not safe to rely upon the testimony of Muhammad Akbar and Muhammad Hanif P.Ws. for upholding the conviction of the appellant. The recovery of hatchet at the instance of the appellant by itself is not sufficient to prove the commission of the offence. It can be invoked as a corroboratory piece of evidence provided the case is otherwise established as to the fact in issue. The learned Additional Sessions Judge did not subject the evidence of these chance witnesses to a keen scrutiny.

15. For the foregoing reasons this appeal is accepted; the conviction and sentences of the appellant are set aside and he is acquitted. He shall be released forthwith if not required to be detained in connection with any other case. S.G.D. Appeal accepted.