1984 P Cr (PLP)

Jafar and Iqbal were tried by the Sessions Judge, Faisalabad, under section 302/34, P. P. C. for the murder of Bajid, deceased. The learned Sessions Judge, by his judgment, dated 3rd February, 1980 convicted both Jafar and Iqbal, accused, under the said section and sentenced them to suffer life imprisonment each with a fine of Rupees Five Thousand (Rs. 5,000) each. In default of payment of fine by either, the said convicts were directed to suffer further rigorous imprisonment for two years. Half of the fine, if realised, was ordered to be paid to the legal heirs of the deceased. The joint appeal (Criminal Appeal No. 283/80) preferred by both the convicts against their conviction and sentence is now before me for disposal. 2 The case of the prosecution is that on 3rd June, 1978 Bajid, deceased, accompanied by his brother Farid P. W. 5, first informant, went to attend the Court of Resident Magistrate, Tandlianwala. They were free at about 2-30 p. m. They went to the Railway Station for catching a train for village Jhok Ditta, from where they could proceed to their houses in Chak No. 436/G. B. The train was late. There was a tree towards the East of the Platform at the Railway Station, Tandlianwala. They took seats under the shade of the said tree where they were joined by Altman P. W. 6 Mumman P. W. 7 who also were waiting to catch the same train. Bajid., deceased, proceeded northwards to urinate. All of a sudden Jafar and Iqbal alias Bala, accused, both armed with chhurfs, came from the western side and raised lalkara that they had come to take revenge for the murder of Agra. The deceased was pushed by Jafar, accused, and he fell on the ground, whereafter Jafar, accused, slaughtered him by inflicting a blow on his neck. Farid P. W. 5 and his companions rushed up and tried to intervene, but they were threatened with dire con sequences. Meanwhile, Iqbal alias Bala, accused, caused a chhuri blow on the abdomen of the deceased, who instantaneously died. The accused then ran away with their crime weapons. The motive of the offence was described as old enmity between the parties, which had originated out of the murder of Agra in the year 1966 at the hands of certain persons, including Bajid deceased. The accused in that case were condemned to death by the Court of Sessions, , but on appeal they were acquitted. Agra was father of Jafar accused and maternal-uncle and father- in-law of Iqbal accused.

3. Leaving Mumman P. W. 4 and Ahman P. W. 6 guard the dead body Farid P. W. 5 went to Police Station Tandlianwala, where he lodged the F. I. R. Exh. P. E. at 3-00 p. m. which was recorded by Nasir Ahmad S.-I. P. W.

9. The Investigating Officer then proceeded to the spot where after preparing the necessary papers he sent the dead body for post-mortem examination. He also recovered blood-stained earth from the spot which he took into possession vide memo. Exh. P. F.

4. The same day at 6-00 p. m. Dr. Ahmad Saeed P. W. I performed the autopsy on the dead body of Bajid, deceased, and found an incised wound 6" x 1" x bone deep in front of the neck just above the thyrod cartilage and a stab wound " x " peritonial cavity deep on front of abdomen, and some distance above umbilicus. The trachea, the big vessels of both sides of the neck, the peritoneum, the oesophagus the small intestines were cut. Death was due to the incised wound on the neck which was individually sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and that between death and post-mortem examination was about six hours.

5. On 4th Juno, 1978 the accused appeared before Nasir Ahmad S.I. 9 who arrested them. Jafar accused led to the recovery of blood-" stained chhuri P. 5 from underneath the ground near northern wall of Mandi Mawaishian-which was taken into possession by the police vide memo. Exh. P. G. and thereafter lqbal accused led to the recovery of bloodstained chhuri P. 6 from underneath the earth near northern wall of Mandi Mawaishian at some distance from the first recovery, which weapon was taken into possession by the police, vide metro. Exh. P. H. Both the recoveries were witnessed by Muhammad Hussain P. W. 8, Nasir Ahmad S.-I. P. W. 9 and Habib (given up P. W:). The blood-stained earth recovered from the spot and the two blood-stained chhuris recovered at the instance of both the accused were found to be stained with human blood, when they were sent to the Chemical Examiner and the Serologist for examination. After completing the necessary investigation, the challan against both the accused was sent up.

6. At the trial, the prosecution produced Farid P. W. 5 to prove the motive, the said witness and Ahmad P. W. 6 and Mumman P. W. 7 in proof of the ocular testimony, Muhammad Hussain P. W. 8 and Nasir Ahmad S.-I, P. W, 9 in support of the recoveries and Dr Ahmad Saeed P.W. 1 to corroborate the medical testimony. The learned trial Judge, lying upon the motive, the ocular account and the medical testimony, evicted and sentenced both the accused as stated above.

7. I have heard the arguments of the learned counsel for the appel lants and the State and have also perused the record. The evidence as guards motive is furnished by Farid P. W.

5. According to his testimony Agra, father of Jaffar appellant and maternal-uncle and father-in-law of Iqbal, appellant, was murdered about 12 years prior to the occurrence, in 1cspect of which case Bajeed, deceased, and his brother Jalla were challaned. The said Agra was murdered because one Mst. Bakhtoan, a sister of Iqbal, appellant, was abducted by Habib, a brother of Bajid, deceased. Agra, as maternal-uncle of the said lady, tried to secure her restoration, whose efforts were viewed with disfavour by Habib and his brothers, including Bajid, deceased, and for which reason they had killed Agra. The learned trial Court convicted Bajeed, deceased, and his brother Jalla, but in appeal they were acquitted. Exh. P. D., a copy of the F. I. R. relating to the said case, also establishes the said story. The evidence of Farid P. W. 5 is not controverted in any manner as regards votive. The prosecution has, therefore, successfully established the 1z:otive against both the appellants.

8. The ocular account in this case is furnished by Farid P. W. 5, Ahmad P. W. 6 and Mumman P. W.

7. Farid P. W. 5 is the real brother of the deceased. The other two witnesses are not related to the deceased. The story, which is somewhat consistent, has been detailed in para. 2 above and need not be repeated. However, Farid P. W. 5 is inimical tax the appellants, as is apparent from the story regarding motive, as stated in para. 1 above. Further, Mst. Fateh Bibi, his first cousin, was abducted by Mokha son of Bulanda, in respect of which a case was registered against the said Mokha. This case was compromised. Sister of Agra, deceased, is married to one Sultan, a brother of the said Mokba. Msr., Hajran, a daughter of Agra deceased, is married to lqbal, appellant. This incident also proves the enmity of Farid P. W. 5 against the appellants. Still further, a case was registered against Zakir, Zawar and Khalid, brothers of Jaffar, appellant and Abbas and Ilyas, brothers of Iqbal, appel lant, for attempt made by them on the life of Jalla, brother of Farid P. W.

5. Hameed, a brother of Ahmad P. W. 6, was a witness and Shameet, tt first cousin of Mumman P. W. 7, was the first informant in the said case, This brings out not only the enmity of Farid P. W. 5 against the appel lants but also of Ahmad P. W. 6 and partisanship of Mumman P. W. 7 with the complainant party, if not enmity against the appellants. It was further sought to be proved that Mst. Saban, a sister of Ahmad P W. 6, who was married to one Pehelwan, had eloped with Iqbal, appellant, and was thereafter restored to her husband, but subsequently she was killed by her husband Pehelwan and her brother Ahmad P. W . 6, in respect of Which these two persons were challaned under section 302!

34. P. P. C. for her murder. However, Ahmad P. W. 6 admitted the story except that lqbal, appellant, had abducted his sister Mst Saban. He tried to suggest that Iqbal, appellant, did not live in Chak No. 433/G, B. However, F. I. R. Exh. P. D. relating to the case of Agra, deceased, shows that Iqbal, appellant, lived in Chak No. 433/G. B. It therefore, appeared that Ahmad P. W. 6 falsely tried to deny that Iqbal appellant did not live in Chak No. 433/G. B. and seduced Mst. Saban, his sister. This further proves the enmity of Ahmad P. W. 6 against the appellants. Lastly, the evidence shows that Jaffar son of Nawab and Ali Sher son of Sadiq were challaned for the murder of one Nazar Muhammad Vains and that Mumman P. W. 7 is a cousin of the said Jaffar soa of Nawab. It is suggested that since both the appellants and the said Nazar Muhammad deceased were Vains by caste, the involvement of Jaffar in the murder of the said Nazar Muhammad Vains clearly establishes the enmity of Mumman P. W. 7 with the appel lants. As stated earlier, Mumman P. W. 7 is not a totally disinterested witness, but appears to be a partisan of 'the complainant party. This incident also supports the said inference. In these circumstances, corro boration of the eye-witnesses is necessary in the instant case, before any of the appellants can be safely convicted for the offences imputed them.

9. The corroboration offered in this case is the recovery of the blood stained chhuris effected at the instance of the two appellants and the medical A testimony. The recoveries of the blood-stained chhuris was disbelieved by the trial Judge. In addition to the reasons given by the trial Judge in this con nection, it would also appear that no evidence has been led to show on what date the sealed parcels containing the blood-stained chhuris were finally sent by the Muharrir of Police Station Tandlianwala to the office of the Chemical Examiner, Lahore. The recoveries were made on 4th June, 1978. Naseer Ahmad Alvi, S. H. O., P. W. 9, deposited the sealed parcels containing the blood-stained chhuris with Muhammad Sharif M. H. C. P. W. 4 on 5th June, 1978. On 18th June, 1978, Muhammad Sharif M. H. C. P. W. 4 delivered the said sealed parcels to Maula Bakhsh F. C. P. .W. 3 for onward transmission to the office of the Chemical Examiner, Lahore. The said Foot Constable carried the parcels to the office of the Chemical Examiner, Lahore, but reaching the office late, he brought back the parcels to Police Station Tandlianwala on 19th June, 1978. He there after did not again take them to the office of the Chemical Examiner, Lahore. No evidence appears to show who then took the sealed parcels from Police Station Tandlianwala after 19th June, 1978 to the office of the Chemical Examiner, Lahore. Even the initial despatch of the parcels to the office of the Chemical Examiner, Lahore, after 14 days of their recovery, leaves much to be desired. In these circumstances, the recoveries cannot be accepted with safety. The medical testimony, however, does not demonstrate with certainty the participation of the particular appel lants, who are charged with the crime. At best, it only shows that the deceased died of two incised injuries of a nature, which could be caused either by one person or two, with sharp-edged weapon.

10. The upshot of the above discussion is that though there is motive,) the ocular account is interested, for which there is no corroboration whim can safely be accepted for proving the participation of the appellants in respect of the crime in incident. In these circumstances, the appellants are entitled to the benefit of doubt.

11. For the foregoing reasons, this appeal is accepted and the convic tions and sentences of the appellants are set aside. They shall be set at liberty forthwith, if not required in any other case. Fines, if any recovered from them, shall be refunded to them. B. A. Appeal accepted.