1968 P Cr (PLP)

M. JAMIL ASGHAR, J.

Muhammad Zaman and Ghaus Muhammad appellants were convicted under section 302 read with section 34, P. P. C. and each of them was sentenced to death for the murder of Muhammad Khan by ,the learned Additional Sessions Judge, Bahawalpur at $ahawalnagar. The appellants against their convictions and sentences have preferred this appeal. The learned Additional Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentences awarded to the appellants. Since both the appeal and the reference arise out of the same judgment they will be disposed of together by this order.

2. The appellants are residents of Chak No. 94/17, Tahsil Chishtian, District Babawalnagar. The deceased also used to reside in the same Chak. Ghaus Muhammad appellant suspected that the deceased had illicit relations with his wife Mst. Sultan Bibi. About six months prior to the occurrence under considera tion Sardar Muhammad (P. W. 6), paternal uncle and father- in-law of the deceased, reported against one Ahmad Nawaz, brother of Muhammad Zaman, appellant, that he had diverted canal water and this resulted in the detention of Ahmad Nawaz for some time. According to the prosecution this constituted the motive for the occurrence under consideration.

3. Both the appellants were class-fellows of approver, Sikandar (P. W. 10), and they had friendly relations with each other. One Muhammad Khan is the mother's sister's son of the approver (Sikandar P. W. 9). His wife and the wife of the deceased are real sisters and that is how the approver was related to the deceased. About 4 to 5 days prior to the occurrence under consideration both the appellants decided to murder the deceased and about one or two days prior to the occurrence they asked the approver to join them for carrying out their design and he agreed. The appellants asked the approver to bring Muhammad Khan deceased to Chishtian on the pretext of seeing a cinema show. On the evening of the 3rd of May 1966, the appellants changed their minds and asked the approver to bring the deceased to Bahawalnagar instead of Chishtian. On the 4th of May 1966, the approver went to the baithak of the deceased when his brother, Alam Khan (P. W: 7) was present. The approver asked the deceased to accompany him to Chishtian for a film show. The deceased agreed to go with him. Before leaving the approver told Alam Khan P. W. that the deceased would return after the film show, while he would proceed to Layallpur. Both of them rode on a cycle and went to Railway Station Bakhshan Khan. There they left their cycle with a shopkeeper and sat at the bus-stand to wait for the bus. In the meanwhile Ali Muhammad and Ghulam. Muhammad (not examined) residents of Chak No. 94/17 came there and they ail went in the same bus to Chishtian On reaching Chishtian Ali Muhammad went away while Ghulam Muhammad asked the approver to have his application for remission of school fee attested by some Magistrate. Thereafter the approver the deceased and Ghulam Muhammad went together to Tahsil Office and got the application of Ghulam Muhammad attested by the Tahsildar. After that Ghulam Muhammad went away. The approver and the deceased then went to Bahawalnagar b bud. At about 5 p.m. both the appellants met them in a bazar while they were roaming about. This meeting had taken place in accordance with the agreed plan. After that all of them went together to Mughlia Hotel sand took some tea and then again started roaming about in the bazar. At about 7 pm. they alt took their meals together at Baghdad Hotel. After that at the suggestion of Muhammad Zaman appellant they event to red -light-area and remained there till 8-15 p.m, listening to songs of the dancing girl. Thereafter at the suggestion of Muhammad Zairian appellant they went to Basti Nizampura and after crossing it they passed on to Battawali minor and eased themselves on the southern side of a garden. The appellants and tire approver had previously decided to commit the murder of the deceased at that place. After casing themselves, when they were returning to the town, the deceased and tine approver were walking ahead, while the appellants swore following there a short distance behind. Both, the appellants took out their knives, attacked the deceased, inflicted several injuries to him and felled him down. The approver also inflicted one or two blows to the deceased with a knife while he was lying on the ground. Tine deceased died at the spot. The approver hid arts knife in a reed growth while the appellants hid their knives somewhere else, after that all three of them came to the Cinema and started seeing a film show. In the interval Muhammad Zaman appellant told his companions that his heart was sinking and that they should Brave the Cinema anti go out. They then came out of the Cinema hail and went to passengers waiting hall of Bahawalnagar Railway Station and kept sitting there till 2-35. A.m.. when they boarded a train for Samasatta. The approver got dowry from the train at Chishtian, while the appellants proceeded to Bakhsan Khan. From Chishtian the approver went to Layallpur by a. bus in order to see his ailing sister and stayed there for about 2 or 3 days. After that he returned to Chak No. 94/17.

4. On the 5th of May 1966, at about 8 a.m., Subedar. Wale Muhammad resident of Basti Nizampura, District Bahawalnagar (P. W. 111, went outside into the fields to answer the call of nature. When he had gone for a distance of about two killas from his house, he saw a dead body of a man lying in the third killa. The dead body had injuries and all clothes were stained with blood. He sent written report Exh. P. A. through his servant Babu (not examined) to Police Station Bahawalnagar; informing them of the discovery. He could not identify the dead body as that of the deceased because the deceased was not known to him. Sub-Inspector Raja Nawazish Ali (P. W. 14) received written report Exh. P. A. at 8 a.m., on the 5th of May 1966, and drew up formal first information report Exh. P. A/1 on its basis. After that he proceeded to the spot, reaching there at about 9 a.m. and found the dead body of a male lying near Basti Nizampura. Subedar Wali Muhammad (P W. 11), Jalilur-Rehman (P. W. 9) and one Sultan Ahmad (not examined) were found present there. The sub-inspector prepared injury statement Exh. P. M. and inquest report Exh. P. G. of the dead body and directed Foot Constable Barkat Ali (P. W. 4) to take it to the mortuary for post-mortem examination. Sabar Hussain Shah (P. W. 3) in the presence of Foot Constable Barkat Ali P. W. took photograph Exh. P. C. of the dead body while it was lying near the mortuary. Photograph Exh F. C was identified by Sub-Inspector Raja Nawazish Ali, Jalil-ur-Rehman and Subedar Wali Muhammad P. Ws. as of the same person whose dead body was found lying near Basti Nizampura. Alam Khan (P. W. 7), the brother of the deceased, and Sardar Muhammad, (P. W. 6), father-in-law of the deceased, identified photograph Exh. P. C. as that of the deceased.

5. After the arrival of the approver at Chak No. 94;/F, the police also reached there and the approver disclosed to his uncle the details of this occurrence. On the 10th of May 1966, the approver and both the appellants were produced before the police. Raja Nawazish Ali P. W. interrogated them till 6 p.m. and arrested them on the next day, i.e. the 11th of May 1966. On that very day the approver first led the Sub-Inspector to a place at a distance of about 32 karams from the spot, where the dead body had been lying, and from a reed growth produced blood stained knife Exh. P. 10, which was taken into possession by the Sub-Inspector vide memo. Exh. P. D, and made into a sealed parcel. Then on the same day Ghaus Muhammad appellant led the Sub-Inspector to a place about 88 karams from the scene of offence and from the base of a date produced blood-stained knife Exh. P. 11, which the Sub-Inspector took into his possession vide memo: Exh. P. E. and made it into a sealed parcel. There after on the same day Muhammad Zaman appellant led the Sub-Inspector to a date-tree at a distance of about 19 karums from the scene of offence and after digging the place took out from the root of the tree blood-stained knife Exh. P. 12, which the Sub-Inspector took into his possession vide memo. Exh. P. F. and made it into a sealed parcel. All the above recoveries were witnessed by Subedar Wali Muhammad (P. W. 11) and Bahadur Khan (P. W, 12). According to the approver he was also present when the knives were recovered. Report Exh. P. Y. of the Serologist shows that the blood on the knives had disintegrated and, therefore, its origin could not be determined.

6. On the 5th of May 1966, at 4-30 p.m., Doctor Gulzar Muhammad Dogar (P. W. 1) performed post-mortem examina tion of the dead body of the deceased and found the following injuries (1) An incised wound, 1 " x " x muscle deep on the right side of the face near the mouth. (2) An incised wound, 1 " x " x trachea and oesophagus which were rut in front of neck transversely. (3) A stab wound, 7/8` x 3/8" x lungs on the front of chest on the left side below the left sterno clavicular joint. (4) A stab wound, 7/8" x 3/8" x lungs on the left side of front of chest near the left anterior axillary line. (5) A s0ab wound, 7/8" x 3/8' x lungs 2' lateral to the left areola. (6) A stab wound, 7/8' x 3/8" x up to bone on the sternum in the middle. (7) A stab wound, 7/8" x 3/8" x lungs on the front of cheat 1' medial to the right nipple. (8) A stab wound, 7/8" x 3/8" x lungs on the right side of the chest, 6" below the right axilla. (9) A stab wound, 7/8" x 3/ 8" x peritonial cavity over the right hypochondrium. (10) A stab wound on the right arm, 7/8" x 3/8" x up to muscle. (11) Four stab wounds on the back of the chest below the left scapula, close to each other, 1 " x 3/8" x lungs deep. Dimensions of the others were same. (12) An incised wound on the back over the left lumbar region 1 " x " muscle deep. (13) An incised wound on the left shoulder, 1 " x " x muscle deep. (14) A stab wound on the left side of the chest over the posterior axillary line, 7/8" x 3/8" x deep up to lung. On internal examination it was found that the walls of thorax were stabbed. Pleurae were injured by stab wounds. The trachea was found cut on the right side near the larynx. Right lung had multiple stab wounds and the pleural cavity was full of blood. Left lung. had multiple stab wounds and pleural cavity was full of blood. Pericardial cavity was full of blood. Blood vessels where found cut. Walls of the abdomen and peritoneum were found stabbed and full of blood on the 'right side. In the opinion of the doctor the death of the deceased was due to shock and haemorrhage as a result of injuries Nos. 2, 3, 4, 5, 7, 8, 9, 11 and 14, which were sufficient in the ordinary course of nature to cause death.

7. The appellants denied their guilt and declined to produce any defence. Muhammad Zaman appellant made the following statement:- "After the death of the grand-father of Sikanda approver his father was appointed-as Lambatdar. My father contested and was appointed as such. This annoyed Sikandar's family. Ibrahim son of Wazir Khan, a close relative of mine, had committed a murderous assault on Muhammad Hayat Khan son of Mehar Khan, real brother of Sikandar approver. A case under section 307, P. P. C. was registered against Ibrahim. Ibrahim was acquitted. This was also-not taken with a good taste by Sikandar and his family: Allah Dad Khan is a cousin of Sikandar approver. He appeared as a prosecution witness to give an ocular account. Zarif Khan is my sister's husband. Manzoor Khan is my nephew, Ibrahim Khan is also my nephew and Fateh Khan is my cousin. This was a case under section 302, P. P. C. and the deceased Ibrahim Khan was the real brother of Sardar Khan P. W. The accused were acquitted in that case. The complainant party filed an appeal in the High Court in which warrants were issued against the accused persons. Eventually that appeal was also dismissed. For the aforesaid reasons, Sikandar was inimical to me and he has falsely involved me in this case." Ghaus Muhammad appellant made the following statement:- "Muhammad Khan, uncle of the deceased, stood trial under section 307, P. P. C. as he had shot at one Muhammad Hayat brother of Sikandar approver. In this way the approver was on inimical terms with the deceased. We had fought with Sikandar approver on the turn of water on a number of times. Our cattle trespassed into his land and destroyed the crop, the land being adjoining to each other. For these reasons Sikandar and his family have involved me in this case."

7. The prosecution case against the appellants rests entirely on the evidence of Sikandar (P. W. 10), the approver in this case coupled with the recoveries of blood-stained knives at the instance of the appellants. Sikandar P: W. made the following statement:-- "Ghaus Muhammad and Muhammad Zaman accused are my friends. They were also my class-fellows. One Muhammad Khan is my mother's sister's son. Wives of Muhammad Khan and Muhammad Khan deceased are real sisters. Ghaus accused suspected that Muhammad Khan deceased had illicit relations with his wife, Mst. Sultan Bibi. Sardar Khan P. W. is the father-in-law of Muhammad Khan deceased. He had made a report against Ahmad Nawaz, a brother of Muhammad Zaman accused, about the diversion of canal water. On this account relation between the deceased and Muhammad Zaman were also strained. About four or five days before the occurrence Muhammad Zaman accused and Ghaus Muhammad accused decided to kill Muhammad Khan and they apprised me of this proposal one or two days before the occurrence and asked me to join them in carrying out their design. I consented. Muhammad Zaman and Ghaus Muhammad accused asked me to bring Muhammad Khan deceased to Chishtian on the pretext of seeing a film show. On the evening of 3rd of May 1966, both the accused asked me to bring Muhammad Khan deceased to Bahawalnagar instead of Chishtian. On the 4th May 1966, I went to the Baithak of Muhammad Khan deceased. His brother Alam Khan P. W. was also present there. I asked the deceased to accompany me to Chishtian for a film show. I told Alam Khan P. W. that the deceased will come back after seeing the film show and I will proceed to Lyallpur. Both of us then rode a cycle and came to Railway Station Bakhshan Khan. I placed my cycle with a shopkeeper at Bakhshan Khan Bus-stand and kept sitting there for the bus. In the meanwhile Ali Muhammad and Ghulam Muhammad, two persons of the village, also came there. I and the deceased then came to Chishtian on bus. Ali Muhammad and Ghulam Muhammad also travelled in the same bus. On reaching Chishtian Ali Muhammad went away and Ghulam Muhammad asked me to have his application for remission of school fee attested by some Magistrate. Myself, the deceased and Ghulam Muhammad aforesaid then went to Tahsil Office Chishtian, and got the application of Ghulam Muhammad attested by the Tahsildar. Ghulam Muhammad also went away. Myself and the deceased then came to bus -stand at Chishtian and from there we came to Bahawalnagar by a bus. We started roaming about in the town. At about 5 p.m. Ghaus Muhammad and Muhammad Zaman met us in a bazar. They had arrived in Bahawalnagar in accordance with the agreed plan. We then went to Mughlia Hotel and took tea. We then strolled and at about 7 p.m. we had our meals at Baghdad Hotel. Muhammad Zaman told us that we should proceed to red-light-area for enjoying songs from the dancing girls. We then went to that place and remained there till 8-15 p.m. Then Muhammad Zaman accused proposed that we should go out of the city to make water. Both the accused, myself and the deceased, then went to Basti Nizampura and after crossing it we passed on to Bahawali minor and eased ourselves on the southern side of a garden. We had agreed to commit the murder of the deceased at that place. While returning I and the deceased were walking ahead of the accused. Ghaus Muhammad and Muhammad Zaman then attacked the deceased with their knives, as a result of which he fell down. The accused gave many blows with their knives. When the deceased fell down I also inflicted one or two blows with a knife on his person. I have seen the three knives. Muhammad Zaman inflicted the blows with knife Exh. P. 12, Ghaus Muhammad accused had knife Exh. P. 11 with which he inflicted injuries on the person of the deceased. I inflicted injuries with knife Exh. P.

10. Muhammad Khan died at the spot. I placed my knife in a reed growth. Ghaus and Muhammad Zaman accused also hid their knives some where. We then came to the Cinema. We started seeing a film show but in the interval Muhammad Zaman accused told us that his heart was sinking and he was perplexed and asked us to leave the Cinema and go out. We left the Cinema hall and went to the passenger's waiting hall at Bahawalnagar Railway Station. We kept sitting there. At 2-35 a.m. we boarded a train bound for Samasatta. I alighted from the train at Chishtian, while the two accused proceeded to Bakhshan Khan: From Chishtian I went to Layallpur by a bus. I went to Layallpur in order to see my sister who was ailing and to bring her to my Chak. I stayed at Layallpur for two or three days. I then returned to Chak No. 94/F. The police arrived in the village and I disclosed to occurrence. My uncle produced me before the police. The police arrested me. Muhammad Zaman and Ghaus Muhammad were also arrested and brought to the police station. I told the Sub-Inspector the details of the occurrence. I was then taken to the spot. I produced knife Exh. P. 10 before the police. It was lying in the reed growth where I had placed it. It eras lying to the north-east of the spot. The knife was blood-stained. The police made it into a sealed parcel and took it into possession. I have seen the photograph Exh. P. C. It is of Muhammad Khan deceased. Articles Exhs. P. 1 to P. 9 belong to the deceased and were on his person at the time of occurrence:" It is a well-established rule of caution that no conviction should be based on the testimony of the approver unless it is corroborated by some other evidence on the record: There is no corroboration of the statement of the approver that the appellants were also seen in the company of the deceased. Neither the shopkeeper at Bakhshan Khan Bus-stand nor Ali Muhammad and Ghulam Muhammad were examined by the prosecution. Even the persons present at the Tahsil Office at Chishtian were not examined where the approver is alleged to have got the application of Ghulam Muhammad attested by the Tahsildar, in the presence of the deceased. The persons present at Mughlia Hotel, Baghdad Hotel and red-light-area were also not examined. If they hail been examined they could have provided corroboration of the statement of the approver. The story that they went half a mile away to ease themselves also does not appear to be plausible, because the approver stated that there were fields about 15 or 16 karams away from the red-light-area. Munshi Muhammad Bakhsh Patwari (P. W. 2) also stated that the dead body was lying at a distance of about half a mile from the red-light-area, and that in between the two places there was a garden of one Haji Naseer Din. Under these circumstances it is difficult to believe that during the night they would travel such a long distance merely to ease themselves. In any case the deceased knew that Ghaus Muhammad appellant suspected him of having illicit connections with his wife, and, therefore, he would not have kept company with him for such a long time. From the medical evidence on the record we find that there were as many as 14 stab wounds on the dead body of the deceased, which shows that the deceased must have bled most profusely and the clothes of the appellants and the approver would have certainly got smeared with blood, and as such they could not have gone and seen the Cinema show, while wearing the same clothes. If they had actually committed the murder, then the normal course would have been for them to have disappeared after the occurrence and not seen together in the Cinema, especially when Alam Khan P. W., the brother of the deceased, had seen the approver taking the deceased out of his house. Thus the whole version given by the approve appears to be untenable. The approver before the Committing Magistrate definitely stated that the appellants were not present at the time of the recovery of knives and, therefore, these recoveries have no corroborative value. In any case the origin or blood on the recovered knives could not be determined and, therefore, it cannot be said with judicial certainty that they were used in the commission of the offence. Taking all these circumstances into consideration we find that the statement of the approver, even if it is believed, stands uncorroborated.

8. We, accordingly, accept the appeal, set aside the convictions and sentences o: the appellants and acquit them. They should be released forthwith, if not wanted in any other case. The sentences of death awarded to the appellants are not confirmed. Appeal accepted.