MUHAMMAD SHAFI Versus STATE
M. SIDDIQ, J ----According to the version as given by Sajawal complainant the brief facts of the case are that on 20-6-1973 at Digarwala his son Bashir Ahmad deceased left his house by saying that he was going to Kot Adu for the repairs of his radio and also to get his clothes ironed. He loft for Kot Adu on a cycle. In the evening, Allah Bakhsh P. W. came to Sajawal P. W. and informed that Bashir Ahmad had been murdered near Bungalow Shah Jamal. He rushed to the place of occurrence and saw the dead body of Bashir Ahmad lying on the kucha road. Many persons had assembled there. Rahim Bakhsh, Muhammad Bakhah and Qadir Bakhsh P. Ws. told him that his son Bashir Ahmad deceased was caught by Piara appellant from his arms and was inflicted injuries by Muhammad Shafi appellant with his knife. After collecting this information, Sajawal along with Noor Muhammad P.W. proceeded to Police Station Kot Adu and lodged the F. I. R. (Exh. P. A.) at 8‑30 p. m. on the same day, namely, 20‑6‑1973. Head Constable Ghulam Shabbir P. W. after recording the report proceeded to the spot. On reaching there, be prepared the inquest report (Exh.PH.) and injury statement (Exh. P. H. 1) of Bashir Ahmad deceased and despatched dead body to the mortuary for post-portem examination. He took into possession blood stained earth from the spot and sealed it into a parcel vile memo. Exh.P.C. He also took into possession cycle (Exh. P. 1), radio (Exh. P. 2), shirt (Exh.P.3), shalwar (Exh.P.4) and banyan (Exh. P.5) vide memo. Kh. P. D. He also got prepared the site plan (Exh. P. K.) by the Patwari. The case was partly investigated by Sher Ali Khan, Supervisor Inspector of Police Station Kot Adu." On 21-6-1973, he arrested the present appellants. While in police custody, Muhammad Shafi appellant led to the recovery of blood‑stained knife (Exh. P. 8) from jowar field which was taken into possession vide memo. Exh. P. F. Muhammad Shafi appellant further got recovered bloodstained shirt (Exh. P. 9) and bloodstained chadar (Exh. P. 10) belonging to him from his house and the some wore taken into possession vide Memo. P.G. Similarly, Piara appellant while in police custody, got recovered bloodstained shirt (Exh. P. 6) and blood-stained chadar (Exh. P. 7) belonging to him from the Sarkanda heap lying in the courtyard of his house and the same were taken into possession through memo. Exh. P.E after the usual investigation, the police challaned the present appellants, under section 302/34, P. P. C:. They, were tried by the Sessions Judge, Muzaffargarh, who vida the impugned judgment dated 5‑9‑1974 found them guilty under sections 302/34. P. P. C. for the murder of Bashir Ahmad and sentenced Muhammad Shafi appellant to death subject to confirmation by this Court to life imprisonment and a fine of R s. 1,000.00 of in default of payment of the fine to undergo further rigorous imprisonment for one year. The appellants have challenged their convictions and sentences through the present appeal. The case is also before us under section 374, Cr. P. C. for confirmation of the death sentence awarded to Muhammad Shafi appellant by the trial Court. This judgment will dispose of both the criminal appeal as well as the Murder Reference.
2. Dr. Muhammad Aslam On 21‑6‑1973, at 5 p.m. performed the post‑mortem examination on the dead body of Bashir Ahmad and found the following injuries on it :‑
(1) A stab wound, '' x '' x 5 on the right super clavicular region.
(2) A stab wound '' x '' x '' near injury No. 1
(3) A stab wound 1 '' x 1/3'' x 3'' deep in the epigastrium.
(4) A stab wound '' x 1/5' x " on the left coastal area front side
(5) A stab wound '' x 1/3'' x 1'' on the right deltoid region.
(6) A stab wound 1 '' x '' x 1 '' on the back of the right lumber region.
(7) A stab wound 1'' x '' x 1'' on the back of the right lumber region.
(8) A stab wound 2/3'' x 1/5'' x 1'' on the back of the left chest lower part,
(9) A stab wound '' x '' x 1'' on the right back of shoulder.
(10) A stab wound " x 1/3" x " on the upper side of the right shoulder.
(11) A stab wound 2/3'' x 1/3'' x 1 '' on the right upper back of chest.
(12) A stab wound 2/3'' x 1/3'' x 1 on the right upper back of chest.
(13) A stab wound '' x '' x 1 '' on the middle of the upper side of the back of chest.
(14) A stab wound '' x 1/5" x 1 '' left upper back of the chest.
(15) A stab wound '' x 1/3'' x 1'' on the root of neck of left back.
(16) A stab wound '' x 1/5' x 1 '' about half inch away from injury No. 15.
(17) A stab wound 1 '' x 1/3'' x 2 '' on the back of the left number region.
In the opinion of the doctor death was caused due to injuries Nos. 6, 7, 12 and 17 to lungs leading to internal haemorrhage. These injuries were suffi cient to cause death in the ordinary course of nature. All the injuries were caused with sharp knife. Probable time between injuries and death was immediate and the time between death and post‑mortem examination was about 24 hours.
3. The appellants when examined under section 342 Cr. P. C. denied the prosecution allegations. Muhammad Shafi appellant however, admitted that Piara appellant was his uncle. When asked why this case was made against him, Muhammad Shafi appellant stated as under:‑
"After the death of my grandfather Mohd. Bakhsh, my grandmother Mst. Bharawan contracted marriage with Lakhi. Mst. Bakhtan the daughter of Lakhi contracted marriage with Sajawal P.W. Sajawal P.W. killed Mst Bakhtan with iota. My father Ghulam Hussain got the case of murder of Mst. Bakhtan registered against Sajawal and due to this grivance I have been falsely involved by Sajawal P. W. in this case. Noor Muhammad P. W. is in related to Saiawal P. W. Ghulam Hussain of Noor Muhammad P. W. was murdered. Noor Muhammad got me and my co‑accused Piara joined in the investiga tion of that case as suspects and this case has been registered against us by Sajawal and Noor Mohd. P. Ws."
Similarly Piara appellant when asked why this case was made against him, stated as under:‑
"Noor Muhammad and Sajawal P. Ws. are related with each other. The daughter of Sajawal P. W. is married to my son. Sajawal P, W. demanded divorce for her. My daughter‑in‑law did not want to get divorce nor my son wanted to divorce her. Due to this fact there was altercation between me and Sajawal P. W. and I had also given beating to him. I had asked Bashir deceased that he should restrain his father from demanding divorce. Bashir deceased had fought with Sajawal. Due to this dispute Bashir deceased left the house o1 his father and started living separately. Due to said enmity I have been falsely involved in this case by Sajawal. I and my co‑accused has been joined as suspects in the murder case of the maternal uncle o1 Noor Mohd. P. W. and due to this reason Noor Muhammad was also inimical with me and he has also falsely involved me in this case it collusion with Sajawal P. W."
When asked if he would produce defence, he stated as under :‑
I produce in defence the certified copy of the order of the Assistant Commissioner, Kot Adu, dated 30th August 1973 Exh. D. C. and certified copy of the sanctioned Warabandi of Chah Pacharwala of village Bj?ubhar Exh. D. H. I do not want to produce any oral evidence in defence.
4. In support of its case, the prosecution produced three eye‑witnesses namely, Muhammad Bakhsh (P. W. 9), Qadir Bakhsh (P. W. 10) and Rabin Bakhsh (P. W. 11). The recoveries in this case are supported by Noon Muhammad (P. W. 5) Ghulam Hussain (P. W. 6) and Muhammad Al (P. W. 8) in addition to the Investigating Officer. The trial Court believed the ocular account given by the eye‑witnesses and also the recovery of blood stained shirt (Exh. P. 6), bloodstained chadar (Exh. P. 7) of Piara appellant and bloodstained shirt (Exh. P. 9) and chadar (Exh. P. 10) of Muhammad Shafi appellant. However, the recovery of bloodstained knife (Exh. P. 8) at the instance of Muhammad Shafi appellant was disbelieved by the trial Court. The learned Sessions Judge convicted and sentenced the appellants under section 302/34, P. P. C. as mentioned above.
5. After hearing the counsel for the parties and going through the relevant material available on the record, we entertain serious doubts about the prosecution case which we discuss below.
6. According to the F. I. R. Bashir Ahmad deceased left his house or a cycle for Kot Adu at. As mentioned above, this report way lodged by Sajawal, father of the deceased. This witness in his statement before the trial Court changed this rime and at one place he mentioned and at another as. He was duly confronted with his statement in the F. I. R. Muhammad Bakhsh P. W. has stated in cross that the occurrence took place at evening time. In his statement Cr. P. C. he stated that the occurrence took place in the Wednesday last. Similarly, another eyewitness Qadir Bakhsh (P. W. 10) has stated that the occurrence took place before the evening time. In his statement under section 161, Cr. P. C. this witness mentioned the time as. The last eyewitness Rahim Bakh3h (P. W. 11) has stated that the occurrence took place at digarwela. Thus, we find that there is no unanimity as to the time of occurrence. The occurrence took place on 20‑6‑1973. On that day, sunset time would be about 7‑30 p. m. The various terms used by the P. Ws. as evening time and adversely affect the prosecution case, as these terms indicate different timings. It is suggested by the defence that the prosecution has taken this stand during the trial for a purpose. The doctor who performed the post‑mortem examination, found that stomach was mostly empty and contained small amount of semi‑solid food material. Small and large intestines were full of gas and fluid. Sajawal P. W., father of Bashir Ahmad deceased has stated that his son had taken his last meal on the morning of the day of occurrence. If the deceased had taken his last meal in the morning of the day of occurrence, then by the evening time his stomach would be completely empty. The change in time according to the learned counsel for the appellants has been made deliberately to bring it in line with the medical evidence. However, we find that the prosecution has not been able to establish any specific and positive time of the occurrence. According to the medical evidence, the deceased was done to death round about at 1 p. m. Perhaps, it was for this reason that the witnesses introduced the term which is about Zohar time. However, the time given in the F. I. R. which is the earliest docu ment, is. This directly conflicts with the medical evidence. To meet this difficulty the witnesses subsequently tried to change this time and used different expressions. However, the fact remains that the prosecution has not been able to establish any positive time as to when the deceased left his house for Kot Adu and when he was done to death.
7. According to the F. I. R. the motive alleged by Sajawal complainant is that Piara appellant was father‑in‑law of Bashir Ahmad deceased. This appellant suspected that the deceased had illicit relations with Mst. Zohran niece of this appellant and wife of Rahim Bakhsh. Said Mst. Zohran is also step‑mother‑in‑law of Muhammad St:afi appellant. Due to this fact Piara appellant used to demand divorce for his own daughter Mst. Zahida from her husband Bashir Ahmad deceased. However, when Sajawal appeared gas P. W. in this case, he did not say a single word about the said motive. The prosecution has got this fact from the eyewitnesses who do not disclose the source of their information. About the motive, another a astonishing circumstance is that according to the eyewitnesses, the age of said Mst. Zohran was about 50/60 years and that she was married about 30 years back. On the other hand, Bashir Abmad deceased at the relevant time was about 25/26 years of age. Rahim Bakhsh is the husband of said Mst. Zohran and this Rahim Bakbsh and Sajawal (father of Bashir Ahmad deceased) are real brothers. Muhammad Bakhah P. W. has admitted in cross‑examination that he had not seen Mst. Zohran and Bashir Abmad deceased together and it came to his notice after the murder that Bashir Ahmad deceased had illicit intimacy with Mst. Zohran. He has further admitted that he cannot tell the name of any person who had told this fact to him and he did not verify whether it was true that Bashir Ahmad deceased had actually illicit intimacy with Mst. Zohran, Rahim Bakhsh P. W. has also made a similar statement. Confronted with this situation, the learned State counsel has tried to argue that it is not necessary for the prosecution to prove motive in every case and that there can be a murder even without a motive. The stand taken up by the prosecution at the earliest stage of this case through the F. I. R. was that the appellants had a motive to kill the deceased. Subsequently, the prosecution could not substantiate the same. Sajawal P. W. who was the proper person to prove the motive being the father of the deceased, failed to mention this fact in his statement before the trial Court. The eye‑witnesses, as mentioned above, did not disclose the source of their informa tion about the motive. Moreover, as one of the eyewitnesses has stated that he learnt about this motive after the occurrence, it belies the prosecution assertion made in the F. I. R. Even otherwise, it appears to be unnatural and unbelieved that a married young man of 25 would have illicit intimacy with an old woman of 50/60 years who is also closely related to him being his aunt.
8. The main plank of the prosecution case is the ocular evidence in this case. The prosecution produced three eye witnesses, namely, Muhammad Bakhsh, Qadir Bakhsh, and Rahim Bakhsh P. Ws. Muhammad Bakhsh and Qadir Bakhsh are first‑cousins and Rahim Bakhsh P. W. is nephew of Qadir Bakhsh P. W. The wife of Rahim Bakhsh P. W. is cousin of Muhammad Bakhsh P. W. The wives of Muhammad Bakhah and Qadir Bakhsh P Ws. are real sisters. Noor Muhammad (P. W. 5) is brother of the wife of Rahim Bakhsh. According to the defence, it is this Noor Muhammad who has got enmity against the appellants and he got them falsely implicated in this case and secured Muhammad Bakhsh, Qadir Bakhsh and Rahim Bakhsh as eye witnesses. We have minutely scrutinized the statements of these eye witnesses. According to Muhammad Bakhsh P. W., he was standing on a culvert when Bashir Ahmad deceased passed by him on a cycle. After a short while, be heard an alarm and when rushed towards that side, he saw that Piara appellant had caught hold of Bashir Ahmad deceased, while Muhammad Shafi appellant was inflicting injuries with a knife. Qadir Bakhsh and Rahim Bakhsh P. Ws. were also attracted to the spot and they also witnessed the occurrence. Bashir Ahmad deceased fell on the ground and died. The accused threatened the P. Ws. and then ran away. According to him, he was irrigating his land at that time. In cross‑examination, he has stated that his warabandi is a sanctioned one and his turn of water falls on Mondays and remains for three days. In examination‑in‑chief, he stated that it was about digarwela when he was irrigating his field. In cross‑examination, however, he has stated that the occurrence took place at evening time. When asked whether the accused persons had come on cycles or on foot etc. He has stated as under:--
"I cannot say whether the accused had come to the place of occurrence on cycles or on mares' back or on foot. I also cannot say whe ther the accused had left from the spot on foot or on cycles or on mares' back."
It may be mentioned here, that according to another eyewitness namely. Qadir Bakhsh (P. W. 10), Muhammad Shafi and Piara appellants had come on cycle and had run away on cycle. If Muhammad Bakhah P. W. had been present on the spot and had witnessed the occurrence, he would have been in a position to say whether they were on foot or on cycle or on mare's back. The occurrence having taken place in broad daylight, there could be no difficulty to see how the appellants reached the spot. In any case, on this very point, he is directly belied by another eyewitness, namely. Qadir Bakhsh P. W. Further, the witnesses claim to have seen the occurrence from a very close range and from such a short distance there could not be any difficulty to see a cycle or a mare etc. This circumstance is most damaging to the prosecution case. According to these eye witnesses, the deceased was caught by Piara appellant, while Muhammad Shafi appellant inflicted knife blows to the deceased. The deceased at that time was going to Kot Adu on a cycle. The prosecution is silent as to whether the appellants had any previous intimation that the deceased would be going from village Bhudher to Kot Adu at that particular time and that they planned to kill him. In other words, there is nothing on the record to show how the appellants and the deceased happened to meet at the place of occurrence at the relevant rim ‑ whether it was by chance or it was pre‑arranged. The prosecution has not explained this aspect of the case. However, as regards the manner how the injuries were inflicted to the deceased, according to the eye‑witnesses, one appellant caught the arms of the deceased, while the other inflicted blows with a knife. If the deceased was going on a cycle, these witnesses are silent as to how he was taken from the cycle and caught by his arms by Piara appellant. It is not clear whether he tried to run away on the cycle or on foot in order to save his life. In any case, judged from ordinary human conduct point of view, should not have easily surrendered himself and allowed Piara appellant to catch him by his arms to facilitate Muhammad Shafi appellant to cause knife blows. When Piara appellant may have tried to catch the deceased by his arms, the latter must have struggled to have himself freed from the clutches of his enemies. In any case, he must have struggled hard and may have made some movements to save his life. He was a young man of 25, whereas Piara appellant was 50 years of age and as such, he could not easily capture the deceased. The eye‑witnesses do not say a word about the struggle made by the deceased before he was made helpless and done to death. Further, it is not clear from the eye‑witness account whether the hands of the deceased were caught by Piara appellant from behind his back or in front. It is nobody's case that the hands of the deceased were tied by the appellants. Whether his arms were caught from behind the back or in front, before the deceased fell down or became unconscious, he must have tried to ward off the blows of the knife and must have made some movements. In that situation, there was every likelihood that Piara appellant who was holding the arms of the deceased, would have received some injuries on his person. However, it is an admitted fact that there was no injury or even a scratch on the person of Piara appellant. According to the doctor, there were five injuries on the front side of the body of the deceased, while 12 were on the back side of the body. It is not clear as to how these injuries could be caused if the arms of the deceased were caught by one accused and the other was inflicting the blows. According to Muhammad Bakhsh P. W., the deceased received some injuries while he ass standing and the rest while be bad fallen down. He had fallen down with his face upward. In that situation, it is not clear how injuries could be inflicted on The back side of his body. This witness further states that be did not raise any alarm during the occurrence as the accused bad threatened the witnesses, but be bad not stated se in his statement under section 161, Cr. P. C. Thus, the manner how tire deceased was inflicted injuries is also not free from doubt. It may be mentioned that Qadir Bakhsh P. W. did not mention the fact of Piara appellant catching Bashir Ahmad deceased by arms either in his statement under section 161 or 164, Cr. P. C. He was duly confronted with the same. Thus, this part of the prosecution case that the deceased was caught by Piara appellant by his arms seems to be an improvement introduced by these witnesses subsequently before the Court. The learned defence counsel has also criticised tire following statement of Qadir Bakhsh P. W. in order to show that in fact it was not possible for him to see the details of the occurrence :--
I had not noticed whether Shaft accused had injured the deceased with knife. Again said I had seen Shall accused injuring tile deceased with knife. I cannot tell the length of the blade of the knife. My eye‑sight was all right at the time of occurrence, but now I have developed cataract. Now 1 cannot see behind four feet, I cannot see from one eye in which the cataract had fully developed. During the days of occurrence, nothing was visible to me in the darkness."
According to the counsel for the appellants, it was not possible for this witness suffering from cataract to see the occurrence minutely. His eye -sight being weak, it was not possible for him to see the details as he claims to have seen. This witness has further belied the presence of Muhammad Bakhsh P. W. in the following words :‑
Muhammad Bakhsh P. W. was not cultivating his land during the days of occurrence. His tenants cultivated his land."
If this part of the statement is believed, then presence of Muhammad Bakhsh P. W. on the spot at the relevant time becomes doubtful. The third eye‑witness Rahim Bakhsh P. W. has introduced the dragging of the deceased by the accused in jantar field. He has stated in cross‑examination as under:--
"Bashir deceased was dragged by the accused in juntar field and there too he was injured."
If the deceased was dragged, then there should have been some signs of dragging on his person, but the medical evidence is completely silent about. It is not denied by the learned counsel for the State that if a person is dragged by the assailants through the field, there are bound to be some scrautches at least on his person. According to the post‑mortem examination report there were only stab wounds found on the person of the deceased and no scratches or otherwise signs of dragging were witnessed by the doctor. Thus, this part of the statement of this witness is sufficient to demonstrate that in fact he had not witnessed the occurrence. Morever, dragging is not mentioned by the other two eyewitnesses. Another circum stances which makes the ocular testimony doubtful is the conduct of these eyewitnesses. They were three against two. According to the prosecution, only Muhammad Shafi was armed with a knife. There is nothing on the record to show whether Piara appellant had any weapon offence with him. Muhammad Bakhsh P. W. claims that he was batting his sugarcane field at that time and, therefore, it can be safely presumed that he was carrying a kassi, because irrigation without it is not possible. Qadir Bakhsh P. W. claims that he was grazing buffaloes in his land at the relevant time. Therefore, he must also be carrying at least a stick if not any other weapon, because for grazing the animals, people generally carry sticks with them. These three eyewitnesses should have tried to capture the assailants because they were not armed with deadly weapons like firearms. A person with a kassi could be in a better position than the one having a knife. These eyewitnesses did not even raise alarm. They made no attempt to save the deceased from the clutches of the assailants. Thus, the conduct of these eyewitnesses is also doubtful, as they did not behave like ordinary human beings. These eyewitnesses are also not quite independent as they claim to be. Rahim Bakhsh P.W. has admitted that Qadir Bakhsh P.W. is his uncle, while Qadir Bakhsh and Muhammad Bakhsh P. W. are first‑cousins inter se and Noor Muhammad P. W. is related to them and is brother of the wife of Rahim Bakhsh P. W. Noor Muhammad appeared as P. W. 5 in support of certain recoveries. He has admitted in cross‑examination as under:‑
"Mst. Bharawan is the daughter of my maternal uncle. She is the daughter of my maternal uncle Ghulam Hussain. It is correct that Mst. Bharawan and Bashir deceased are maternal cousins.
Moosa is my brother. A pre‑emption suit has been filed against him by Muhammad Bakhsh, son of Allah Wasaya. I do not know whether this Muhammad Bakhsh is the uncle of Shafi accused or not. Said Muhammad Bakhsh is, however, from the baradari of Muhammad Shall. I have been asking Muhammad Bakhsh to withdraw the pre‑emption suit. Ghulam Hussain my maternal uncle was murdered at night time. The son‑in‑law of Ghulam Hussain was challaned in that case. I do not know whether Piara and Shafi accused were also joined as suspects by the police in that case or not."
Rahim Bakhsh P. W. in cross‑examination has stated as under:‑
"I do not know whether Bashir deceased had enticed away Mst. Bharawan from the house of Noor Muhammad P. W."
On the basis of this material, it is vehemently argued by the learned defence counsel that Noor Muhammad had direct enmity with the present appellants and, therefore, he got them falsely implicated in the present case and secured the eyewitnesses of his choice who were related to him. The learned State counsel is not in a position to rebut the same. After going through the statements of these eyewitnesses and keeping fn view the background of the case, the claim of the eyewitnesses to have witnessed the occurrence appears to be doubtful and they are also not independent and disinterested witnesses, but rather related to and under the influence of Noor Muhammad P. W. who has got enmity against the appellants. Moreover, it is an admitted fact that the place of occurrence is surrounded by five Abadis, but not a single witness of the locality has been produced by the prosecution. In these circumstances, it is not fie safe to rely upon the testimony of these eyewitnesses. In any case, their testimony would require independent corroboration which is missing in the case. The learned State counsel has tried to use the recovery of blood‑stained clothes of the appellants as independent corroborative piece of evidence. We are not inclined to attach much importance to the recoveries of these articles, for the simple reason that one of the attesting witnesses is the same Noor Muhammad (P. W. 5) who is inimical towards the appellants. The recovery attested by another interested and inimical witness cannot be termed as independent piece of corroboration. Further, we find that according to Noor Muhammad P. W. the chadar of Muhammad Shafi appellant was of red colour and his shirt was of yellow colour. According to another recovery witness Ghulam Hassan (P. W. 6), the chador of Muhammad Shafi appellant was of yellow colour and his shirt was white. Thus, there is direct conflict regarding the colour of these articles. In such circumstances, it is not safe to rely upon such evidence as the recovery of these clothes seems to be doubtful. It may be mentioned that the other recovery of bloodstained knife (Ex. P. 8) has already been disbelieved by the trial Court. None of the recovery witnesses belongs to the locality, although the place of occurrence is surrounded by various Abadis.
9. After hearing the counsel for the parties at length and going through the relevant material available on the record, we are clearly of the view that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. We find that element of doubt exists at every stage of the case. In these circumstances, the appellants, are entitled to the benefit of that doubt. Accordingly, while giving the benefit of doubt to the appellants, we accept this appeal, set aside their convictions and sentences and acquit them. They shall be set at liberty forthwith if not required in connection with any other case.
Appeal allowed.