P L D 1984 Lahore 385 (PLP)

Ijaz NISAR, J.

‑Faqir Hussain son of Akbar (32) and Jaber son of Ghulam Farid (30) Dogars by caste, resident of Chak No. 12 Gobind Garb, Police Station, Khanqah Dogran, District Sheikhupura were tried alongwith eight others (since acquitted) by the learned Additional Sessions Judge, Sheikhupura for committing the murder of .Faqir Hussain deceased and for murderously assaulting Muhammad Naveed, Hamid Ali, Muhammad Rafiq, Muhammad Boota and Ashraf P. Ws. with daggers, Takwas and Sotas on 1‑2‑1980 at 9/10 a. m. and have been convicted and sentenced on 8‑9‑1981 as follows: Faqir Hussain convicted under section 323, P. P. C. and sentenced to R.I. for 6 months. Jaber (a) convicted under section 302, P.P.C. and sentenced to death and a fine of Rs. 5,000 or in default to undergo further R. 1. for 2 years. Half of the fine, if recovered, was to be paid to the heirs of the deceased. (b) convicted under section 324, P.P.C. and sentenced to one year's R. I. The convicted accused have filed separate appeals which alongwith murder reference and the revision filed by Muhammad Naveed for setting aside the acquittal of the co‑accused of the appellants shall be disposed of by this order.

2. The prosecution case is that on 14‑11‑1979 Jaber and Faqir Hussain appellants alongwith others assaulted Muhammad Rafiq (P. W. 11) and others for not voting for Haji Fateh Muhammad in the Local Bodies Election. A case under section 307, P.P.C. was registered against the accused party. Muhammad Rafiq P. W. 11 was a witness in the said case. The accused party pressurized Faqir Hussain deceased father of Muhammad Rafiq P. W. to prevail upon the latter so as to refrain from appearing as a witness against them to which the deceased did not agree. Two days prior to the occurrence i.e., 29‑1‑1980 Nazir Hussain son of the deceased was manbandled by Jaber appellant and his brother, The deceased complained to Ghulam Farid and Mubarak (since acquitted) but they refused to take any notice of the same.

3. On the day of occurrence i.e., 1‑2‑1980 at 9‑10 a. m. Muhammad Naveed P. W. 10 and his fatber, Faqir Hussain deceased were returning to their Village after irrigating their land. When they reached near the village pond, laber appellant, Aslam, Mubarak and Ashiq (since acquitted) armed with d iggers, Faqir Hussain appellant, Sanawar (since acquitted) armed with takwas Riasat. Riaz and Farid (since acquitted) armed with sotas and Rashid (since aquitted) armed with a gun suddenly emerged from behind kikar trees and attacked the complainant party with their respective weapons. Faqir Hussain gave a takwa blow to Muhammad Naveed P. W. on his head, Jaber appellant gave a khanjar blow on his left arm, Sanawar gave a takwa blow on his left thumb while Riaz and Riasat caused sota blows to him. Sanawar gave a takwa blow to Faqir Hussain deceased on his shoulder, Jaber appellant gave a khanjar blow on the left side on the back of his shoulder. Ashiq gave a khanjar blow on the back of the left shoulder of the deceased while Aslam gave a dagger blow on his back. The deceased fell down. Mubarak gave injuries to the deceased on his chest and left shoulder. On hearing the alarm of the deceased Muhammad Naveed P. W. 10 and Muhammad Rafiq P. W. 11 (sons of the deceased), Muhammad Boota P.W. 12 nephew of the deceased, Ashraf and Hamid (not produced) arrived at the spot. Muhammad Rafiq and Muhammad Boota P. Ws. were also injured by the appellants and their companions. Rashid accused (since acquitted) continued firing during the course of occurrence to scare away the P. Ws. but nobody was hurt. The accused fled away after the occurrence with their respective weapons. The deceased died at the spot. Muhammad Younus A. S. 1. reached the spot on learning about the occurrence and recorded the statement Exh. P.A. of Muhammad Naveed P. W. 10 at 11 a. m. on 1‑2‑1980, on the basis of which the formal F.

1. R. Exh. P.A./1 was recorded.

4. The A. S. I. prepared the inquest report P. N. and the injury statement P. O. of the deceased and arrested the accused. Jaber appellant led to the recovery of dagger P. 6 through memo. Exh. P. F. on 1 I‑2‑1980. On the same day, Faqir Hussain appellant led to the recovery of takwa P. 7 from his residential kotha through memo. Exh. P. G. Sanawar, Aslam and Ashiq accused got recovered dangs P. 8, P. 9 and P. 10, respectively through memos. Exh P. Q., P. R. and P. S. Mubarak accused led to the recovery of gun P. 5 through memo. Exh. P.D. The dagger recovered from Jabar and takwa recovered from Faqir appellant were found to be stained with human blood by the Serologist, vide his report Exh. P.U. Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 attested the recovery memos. S.

1. Zafarullah Khan got prepared the site plan Exhs. P. C. and P. C. 1.

5. Dr. Manzoor Hussain Kazmi who performed the post‑mortem on the dead body of Faqir Muhammad deceased could not be examined personally as he was reported to have left for Iraq. Secondary evidence was led to prove the post‑mortem report Exh. P.H. and the diagram Exh. P.H. 1 of the injuries. Similarly secondary evidence was led to prove the medico‑legal reports Exhs. P.J., P.K. and P.L. of Muhammad Naveed P. W. 10, Harnid Ali (not produced) and Muhammad Rafiq P. W. 11 respectively as Dr. Khalid Yazdani who had examined them was reported to have left for Iran.

6. According to the post‑mortem report the following injuries were found on the dead body of Faqir Hussain deceased: (1) An incised wound 3 cm. x 0.5 cm. x 1 cm. on the back of left shoulder. (2) A stab wound 3 cm. X I cm. x deep to the cavity of the chest situated on the right of the middle line in‑between the two shoulders weapon travelled and injured the middle lobe of the left lung 1 cm. x 0.5 cm. X 0.5 cm. (3) A stab wound 3 cm. X 0.5 cm. X deep to the cavity of the abdomen on the back of the left flank middle part weapon went deep in the cavity and injured the left kidney 0.5 cm. X 0.3 cm. X 0.6 cm. on the lower pole. (4) An incised wound 3.5 cm. X 1 cm. x deep to the bone on the back of right shoulder middle region. (5) An incised wound 3 5 cm. X 1.5 cm. X skin deep on the front of the top of left shoulder. (6) A stab wound 3 cm. X 1 cm. X deep to the cavity of the chest on the front and left side 4 cm. below the outer end of left clavicle.. (7) A stab 4.5 cm. x 2.5 cm. a deep to the cavity of the chest in front and on the left side 3 cm. below the middle of left clavicle weapon went deep in the cavity of the chest and injured the upper lobe of the lung 1.5 cm. X 0.5 cm. x 1 cm. (8) An incised cut linear 1.5 cm long on the right cheek. Injuries Nos. 2, 3 and 7 were individually and collectively fatal. Death occurred due to severe shock and haemorrhage. All the injuries were ante mortem and were caused by sharp‑edged weapon. The probable time between injuries and death was 1 to 3 hours and that between death and post‑mortem examination 24 hours.

7. Jaber and Faqir Hussain appellants and the acquitted accused pleaded not guilty to the charge and denied the prosecution allegations. They stated that they bad been falsely involved. No evidence was led in defence.

8. The prosecution examined Muhammad Naveed P. W. 10, Muhammad Rafiq P. W. 11 and Muhammad Boota P. W. 12 to prove the occurrence. All of them are injured and they deposed about the motive and the occurrence. Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 were examined to prove the recoveries from the appellants and the acquitted accused.

9. The learned trial Court observed that the eye‑witnesses were interested and inimical against the accused and considered it unsafe to act upon their testimony unless corroborated by some other circumstance. In its opinion the required corroboration was forthcoming so far as Jaber and Faqir Hussain appellants were concerned from the evidence of Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 the recovery witnesses and for this reason convicted them only and acquitted the rest of the eight accused. 9‑A. Learned counsel for the appellants has assailed the convictions of the appellants on the grounds that the evidence admittedly is of interested nature, the F. I. R. having been recorded at the spot was the result of mutual deliberations and consultations. The recovery witnesses are inimically disposed towards the appellants and there was no mis‑match or distinction between the acquitted accused and the appellants so far as the ocular testimony and the evidence of the recoveries is concerned, and lastly that the eye witnesses having been disbelieved against the majority of the accused should not have been believed against the appellants without any independent corroborations.

10. Muhammad Naveed and Muhammad Rafiq P. Ws. are sons of the deceased while Muhammad Boota P. W. is a nephew of the deceased. Admittedly, the relations between the parties were strained. Ashraf and Hamid named as eye‑witnesses in the F. I. R. have not been examined. The F. I. R. was recorded on the spot. Muhammad Rafiq P. W. against whom the accused are said to be bearing a grudge was not seriously assaulted. A contusion and painful swelling was found on his person. Rashid, the acquitted accused, who was said to be carrying a gun would not have kept behind by just firing in the air if he had shared the common intention/ object with the other accused in committing the murder of Faqir Hussain deceased. Muhammad Bashir P. W. 6 and Muhammad Boota P. W. 7 the recovery witnesses who have been held to be an independent persons by the trial Court and are said to have corroborated the eye‑witnesses do not appear to be completely disinterested persons. Muhammad Bashir P. W. admitted in cross‑examination that there are various groups in their village and that he was affiliated with the complainant party. He further admitted that other disinterested persons also lived there but the police did not associate any of them. Furthermore, he admitted that the kur of Ghulam Farid (since acquitted) father of Jaber appellant from where the dagger P. 6 was recovered was lying open. Likewise, Muhammad Buota P. W. 7 admitted that Aslam acquitted accused a relative of the appellants was challaned for stealing earnings of his brother's wife and later on acquitted. He too admitted that some disinterested and respectable persons lived in their village. In the cross‑examination, he stated that the havell from where dagger P. 6 was recovered was lying open and isolated. He further admitted that other sons of Ghulam Farid (acquitted accused) also lived in the said haveli. The recoveries were effected 10 days after the occurrence. The appellants were not likely to have kept the weapons of offence in their houses for such a long period when they could have easily destroyed or disposed them away. For the above reasons, we do not think that the recoveries provide any corroboration or support to the ocular testimony. In consequence, we hold that the prosecution has failed to bring home the guilt to the appellants beyond all reasonable doubt. Accordingly, we accept their appeal, set aside their convictions and sentences and acquit them of the charges. Jaber appellant shall be set at liberty forthwith, if not required in any other case. Faqir Hussain appellant who is on bail is discharged from the bail bonds. The revision stands dismissed. The death sentence of Jaber appellant is not confirmed. M. Z. M. Appeal accepted.