Appellants Sardar alias Dari aged 33 years, his brother Siddique aged 31 years sons of Shera, Khushi Muhammad son of Mahla aged 60 years and Nabi Bux son of Fazal Din aged 35 years, all residents of Chak No. 61/15/L, Police Station Mian Channu, were tried by the Additional Sessions Judge, Multan on charges under section 302/34, P.P.C. Vide judgment dated 21st. February 1977, appellant Sardar has been con--victed and sentenced to imprisonment for life and a fine of Rs. 2,000 or in default to undergo further R. I. For one year while the remaining appellants have been convicted and sentenced to five years' R. I. Each under section 325/34, P.P.C. The deceased in this case was resident of Chak No. 6a/15-L of the same Police station. They have preferred as appeal,
2. Occurrence allegedly took place at about 7.00 a. m. In the outskirts of Chak No. 61/15 I. On 11th July 1974. Police Post Chab Kalan is at a distance of one mile from the place of occurrence. The matter was reported at the Police Post by Faiz Muhammad (P. W. 5) where his statement Exh. P. B. Was recorded by Nazir Abmad S.I, (P. W. 10) at about 1-00 p, m. On the same day; this later formed the basis of formal F. I. R. Exh. P, B./1 prepared by Muhammad Rashid Moharrir Head Constable (P, W. 4) at 2-30 P. M. At Mian Channu Police Station, The case was originally registered under section 307/34, P.P,C. The deceased succumbed to the injuries in the evening on the same day when the offence was altered to one under section 302/34, P.P.C.
3. Prosecution case as disclosed in the police report in brief is that Faiz Muhammad P. W. Was bringing clay for the village mosque in the morning on the day of occurrence. He came across appellant Nabi Bux of Chak No. 61/15-L and wanted him to enter into a exchange bargain of their goats. The latter showed his willingness. At this, complainant Faiz Muhammad said that his goat was superior. He asked as to what extra money the latter would give to him along with his goat.
Appellant Nabi Bux came out with an answer that he (Faiz Muhammad P. W.) should give his sister also along with the goat. Faiz Muhammad gave him slaps. Haji Muhammad Ramzan Lambardar of the Chak (not examined) intervened and separated the two. Appellant Nabi Bux left for his house abusing Faiz Muhammad P. W. Who resumed his work. After an hour or so all the four appellants armed with dangs came to Chak No. 64/15-L. They declared that he (Faiz Muhammad) would not be left alive. Faiz Muhammad alighted from his rehri and raised alarm. This attracted Khurshid Ahmad deceased. Sabir (P. W. 7), Suleman (P. W. 8), Ahmad Yar alias Ahmad (D. W. 1) and Ghulam Muhammad (D. W. 2) to the spot. They beseeched the assailants to spare Faiz Muhammad P. W.
And were, able, to save Faiz Muhammad. After this incident Khurshid Ahmad deceased went away to look after his goats which he was earlier, grazing near the village abadi. All the four appellants, however, followed the deceased. Faiz Muhammad P.W. And the reb2ain--ing witnesses suspecting that the appellants might not cause harm to the deceased, also, followed them. As appellants approached Khurshid Ahmad deceased they raised lalkara saying that brother of Faiz Muhammad P. W. Should not be spared. Sardar gave a dang blow on the head of the deceased. He fell down with his face downward. The remaining three appellants then inflicted blows on the back of the deceased. The deceased became unconscious. He was bleeding-from his mouth. He had also got his teeth fractured on account of the fall on the ground. The deceased in state of unconsciousness was transmitted to Civil Hospital, Katcha Khoh where he was examined medically by Dr. Shamshad Hussain (P. W. 1). Faiz Muhammad P. W. Produced the medico-legal report at Police Post, Chab Kalan where his statement as noticed above was recorded by Nazir Ahmad, S. I.
4. The case was partly investigated by Abdul Majid S. L.W. W. 6). He arrested the appellants on 13th July 1974, when they were produced before him. Sardar appellant produced blood-stained sots P.
W. 6, which was taken into possession, made into a sealed parcel vide memo. Exh. P. W. 6/E.
Appellants Khushi Muhammad, Siddique and Nabi Bux produced sotis Exhs. P. 4, P. 5 and P. 3, which were also taken into possession vide memos, Exhs, P. W. 6/C, P, W, 6/D and P. W, 6/E.
5. Dr. Shamshad Hussain (P, W. 1) examined the deceased when he was alive. Dr. Allah Nawaz (P. W.
11) conducted post-mortem examination on the dead body. The deceased was found to have sustained six injuries one contused stitched wound 2--" on right front side of skull the second upper right incisor tooth and lower left canine tooth were found missing. The remaining three injuries were on the back. Frontal bone of right, side was fractured. 7th and 8th ribs of left side were fractured posteriorly. There was a big haemotoma on the right side of the skull. Injuries Nos. 1, 2, 3, 4 and 5 were grievous while injury No. 6 was simple. Death in the opinion of the doctor occurred due to injury No. 1 Which was sufficient to cause death in the ordinary course of nature.
6. Appellants at the trial pleaded not guilty and refuted the allega--tions. A counter version was suggested. According to them deceased was a man of bad character and used to tease the women of Musallis living outside the village abadi. In the earlier hours of the morning he was injured by Musallis. They examined two witnesses in their defence. Ahmad Yar who was cited as an eye-witness in the F. I. R. Has been examined as D. W.
1. Similarly Ghulam Muhammad who was also named as eye-witness has been examined as D. W.
2. According to Ahmad Yar when he was going outside the chak abadi to answer the call of nature before sun rise be found Khurshid Ahmad deceased lying in an injured condition. He was unconscious. Ghulam Muhammad D. W. Was also with him. He sent Ghulam Muhammad to the house of Khurshid Ahmad to bring Faiz Muhammad P.
W. Who had not seen the occurrence. Ghulam Muhammad D. W also deposed on the same lines.
7. Prosecution at the trial relied on the ocular testimony given by Faiz Muhammad P. W. 5, Sabir P. W.
7 and Suleman P. W. 8; recoveries of dangs at the instance of the appellants; motive and the medical evidence.
8. Learned trial Judge accepted the ocular evidence and found support to it from the medical evidence and recovery of incriminating weapons of offence. He was in doubt as to the motive set up by the prosecution.
9. The learned counsel for the appellants in support of this appeal argued that both Sabir and Suleman P. Ws. Did not support the prosecu--tion case before the Committing Magistrate. They were declared hostile he remaining two witnesses viz. Ahmad Yar, Ghulam Muhammad similarly did not support the prosecution case and have been examined as defence witnesses. Faiz Muhammad P. W. Is the younger bother of the deceased. His evidence cannot be accepted unreservedly. If the case of the prosecution as deposed by him is accepted, his presence at the spot is rendered doubtful. Appellant Nabi Bux, if at all, had a grudge, the same was against him, He should have been attacked first. The recoveries in the case were effected in a dramatic way. It is unexpected that the accused persons involved in a case on capital charge would keep the weapon of offence blood-stained after the occur--rence and produce the same before the police on its asking. Witnesses of the recovery namely, Sabir and Ahmad Yar, by their conduct, have rendered themselves unworthy of credit: Ahmad Yar has not been examined by the prosecution. He appeared as D. W.
1. Sabir did not support the prosecution case before the Committing Magistrate.
Medical evidence, if examined closely, is rather in conflict with the ocular version. For accepting that the deceased had suffered fracture of two of his teeth by merely falling on the ground, requires lot of imaginations. Two of his teeth were found missing on the medical examination. It was concluded that the prosecution has not been able to establish his case beyond reasonable doubt against any of the appellants.
10. Learned State Counsel on the other hand argued that the prosecution has been able to bring home the guilt to the appellants beyond doubt. Even if the evidence of Sabir and Suleman is looked with suspicion there is nothing wrong to sustain conviction on the evidence of Faiz Muhammad alone. Under section 134 of the Evidence Act no particular number of witnesses is required for the proof of any fact. In any case some corroboration is provided by the medical evidence. There was nothing unusual that the deceased had his teeth fractured by falling with his face downward on receipt of the head injury, Prosecution in this case, as noticed earlier relied on five persons as the witnesses of the. Spot. Ahmad Yar alias Ahmad and Ghulam Muhammad have been examined as defence witnesses. Sabir and Suleman P. Ws. Did not support the prosecution before the Committing Magistrate. However they have implicated the appellants at the trial. An explanation is sought to be given that as there was a compromise between the parties they deposed in favour of the appellants. Whatever the reasons, they have taken up two different positions on oath at two stages of this case. I am not impressed of the reasons of the learned trial Judge that since they are natural witnesses and are consistent in their evidence, this aspect should be over looked. It would not be safe to rely on such persons unreservedly; and particularly is the situation where two of the remaining eye-witnesses have even at the trial not supported the prosecution version and have been examined as defence witnesses. Faiz Muhammad P. W. No doubt has been consis--tent at every stage of the proceedings yet in his case also it will not be, quite safe to maintain conviction without looking for some supporting evidence. He is real brother of the deceased. He allegedly is the main source of trouble between the parties. It cannot easily be accepted that the assailants would have spared him and dealt with the deceased only because he was the brother of this witness. I am therefore constrained to hold that conviction cannot be sustained unless there is corroboration of the type as laid down in Wasiullah v. Mirza, Ali and others (PLD 1963 SC 25) of the ocular testimony.
11. This brings me to the other pieces of evidence. Motive alleged has not been established by any independent evidence. Only Faiz Muhammad P. W. Hays deposed about the motive. Haji Muhammad Ramzan Lambardar who stately intervened in quarrel between Faiz Muhammad and the appellant Nabi Bux has not been examined. This piece of their evidence therefore would not provide the required corroboration. Medical evidence, as noticed earlier is rather in conflict with the ocular evidence, question of using this piece of evidence as corroboration does not arise.
Recoveries of incriminating articles at the instance of the appellants are of little use in this case.
Ahmad Yar and Sabir are the witnesses of these recoveries. Only stick i. e. Exh. P. 6 recovered at the instance of Sardar was found stained with blood Ahmad Yar has not supported these recoveries.
He appeared as a defence witness. The conduct of Sabir P. W. Has already been considered as he has also been examined as an eye-witness. Recoveries in the case too therefore, would not provide necessary corroboration.
12. For all that has been stated above I. Find that the prosecution has not been able to establish his case against any of the appellants beyond reasonable doubt. This appeal is accordingly allowed.
The conviction and sentences awarded to the appellants are set aside. They will be released forthwith if not required in any other case.