SHERA Versus STATE
1. MUSHTAQ HUSSAIN, J .‑‑Shera son of Sardara, aged 20 years, his brother‑in‑law Akbar Son of Ghulam Rasul, aged 22 years Sohni son of Rehman, aged 17 years, Bati son of Tehman, aged 18 years and Rehman son of Muhammad aged 50 years, the father of the two last‑named persons and paternal uncle of the two first‑named, stood their trial before the learned Additional Sessions Judge, Gujrat, for having committed the murder of Rehman on 21‑2‑6g at degarwela in the area of village Chatke, District Gujrat at a distance of 10 miles from Police Station Kuthiala Sheikan were F. I. R. Exh. P. A. was lodged by Jahana (P, W. 2), brother of the deceased, at 7‑30 p. m. and was recorded by Khurshid Ahmad (P. W. 11).
2. By his order dated 16‑1‑1971, the learned Additional Sessions Judge, Gujrat, acquitted Sohni, Bati and Rehman of the charges against them and convicted Shera under section 302 and Akbar under section 302/34, P. P. C. He sentenced Shera to death and Akbar to transportation for life. Both these convicts have filed an appeal against their conviction and sentence and we also have the case of Shera before us for confirmation of the death sentence under section 374, Cr. P. C.
3. The prosecution case is that 1 years before the occurrence, Rehman deceased assaulted and injured Sardara son of Shera appellant. Rehman etc., were ehallaned and were sentenced to one year's R. I., each but were acquitted by the trial Court. To avenge this, all the appellants got together with the common object of killing Rehman.
4. On the fateful day at degarwela Rehman deceased was proceeding to the house of Saco son of Muhammad for collecting subscription for a school and he happened to pass through the lane where the haveli of Shera son of Sardara is situated. Jahana (P. W. 2), brother of the deceased, left the house of his brother Rehman and came out in the lane when be found that his brother Rehman was coming back through that gala. When he reached near the havrli of Shera appellant, Shera, Sohni, Bati, Akbar and Rehman emerged shouting lalkaras from the haveli of Shera appellant. Shera Sohni and Bati were armed with spears, Akbar had a hatchet while Rehman was armed with a sort. All of them opened an attack on Rehman deceased who took to his heels to save his life from them. He was, however, followed and when they reached the field of Saee and Dosso sons of Shahu where the wheat crop was growing, Shera appellant hit Rehman with his spear on his ear, Akber delivered a blow on the head of Rehman with his hatchet. Rehman fell down and Bati and Sohni then gave him blows on his legs while Akbar injured the left leg of Rehman with the wrong side of the hatchet breaking his lea. Rehman continued to exhort them. Before the occurrence started. Jahana (P. W. 2) had also reached the spot and since he was making a noise, Saee (P. W. 3), Khushi son of Rehman, and Gulla (P. W. 4) also reached the spot and witnessed the occurrence with their own eyes.
5. Jahana (P. W. 2) went to the Police Station, Kuthiala Sheikhan and lodged F. I. R. Ex. PA at 7‑30 p.m. which as has been stated above, was recorded by Khurshid Ahmad, S. I (P. W. 11).
6. Khurshid Ahmad (P. W. 11) thereafter went to the spot and started the usual investigation. He arrested the accused on the 24th of the month when they presented themselves to him. Bati, Solmi and Shera accused produced their weapons of offence, namely, ballams P. 1, P. 3 and P. 2 respectively before him. They were blood‑stained and they were sealed into parcels vide memo. Exhs. PC PE and PD respectively. Akbar produced hatchet Exh. P. 4 which was taken into possession vide memo. Exh. PF. This was also blood‑stained. The investigation having been completed, the Sub- Inspector challaned the accused persons with the result already indicated above.
7. At the trial all the accused denied having anything to do with the occurrence and claimed to be tried. The prosecution produced 11 witnesses in support of its case while the defence examined none.
8. Dr. Ghulam Ahmad appeared as P. W. 1 who testified to having performed the autopsy on the dead body of the deceased on 22‑2‑1968 at 11‑30 a.m. and having found 5 incised wounds, 2 contusions, 2 lacerated wounds and 2 abrasions on his body. He found that the stomach had 8 oz. of semi‑digested food material and the urinal bladder had 6 oz. of urine. He found that the deceased breathed his last as a result of injuries Nos. 1 to 6 and No. 8 which were sufficient in the ordinary course of nature to cause death.
9. The recoveries were made in the presence of Khan Muhammad (P. W. 5), Khurshid Ahmad, S. I. (P. W. I1) and Mutalli. Mutalli was not produced as a witness. Khan Muhammad (P. W. 5) stated before the Court that all these weapons had been produced before the Sub‑Inspector when he was sitting in the dera and a large number of people were there. He stated that the accused came there with their respective weapons in their hands and produced them before the investigating officer. He did not know if any other person was asked to thumb mark or sign the recovery of weapons. According to him, these recoveries took place on the third day after the occurrence.
10. As against that, Khurshid Ahmad, S. I. (P. W. 11) has stated that he came to know that the four accused A ere sitting on their well and he consequently proceeded to that place. He found all of them there, he arrested them and they produced the weapons of offence. He made it clear that the well is at a distance of one square on the south‑eastern side of the Village abadi and that there was no other person except five accused on the well. He also made it explicit that they produced the weapons from the adjoining khola. Khanoo and Mutaili P. Ws. accompanied him to that place and other persons also went with him. The recovery memos made no mention of the place from which the recoveries were made or the manner in which the recoveries were made. The two recovery witnesses contradict each other on both these points in an irreconcilable manner We, therefore, agree with the learned Additional Sessions Judge in his conclusion that all the recoveries of weapons were doubtful. In fact, we would be prepared to go a step further and say that these recoveries have not been proved and cannot be used at ail against the appellants.
11. Jahana, Saee and Gulla eye‑witnesses are all related to the deceased. Jahana is a brother of the deceased, Saee (P. W. 3) and Gulla (P. W. 4) are near relations and there is enmity between the appellants, the deceased and his family as has already been shown above. The weapons in the hands of each individual have been specified in the E. I. R as have been the parts played by each one of them in the occurrence and the injuries, inflicted by them. Sobni aged 17 Bati aged 18 and Rehman have already been acquitted by the learned Additional Sessions Judge on the basis of the evidence of these very witnesses. In the absence of corroboration in any shape, it would be most imprudent to convict the appellants on the testimony of these three witnesses who have been proved to be liars in the case of Shoni, Bati and Rohman whom they implicated in the case without any factual basis; in fact the learned Addl. Sessions Judge has held that Bati and Sohni were not present at all at the time of occurrence, inter alia, because:‑---
12. "If they had used the ballam from sharp‑edged side there could not be incised wounds or lacerated wounds as discussed above this way not a case so far as the medical evidence was concerned and that they had been falsely implicated."
13. He has gone on to say that Rehman had also been involved falsely due to long and old‑standing enmity. In this state of the evidence, it is not possible for us to base any conviction on the statements of these three untruthful witnesses who had no compunction in making false statement, before the Court and falsely implicating persons who were not present at the scene of occurrence and ascribing specific parts to them.
14. The appeal is, therefore, accepted, the sentence of death against Shera son of Sardara is not confirmed and the Reference under section 374, Cr. P. C. is rejected. The convictions of Shera under section 302 and that of Akbar under section 302/34, P. P. C. are set aside. They have a1rcady been directed to be released if they are not require in any other case.
15. Appeal allowed.