Mehdi, Ashiq, Muhammad, Noora and Bharpura were tried by an Additional Sessions Judge, of Sheikhupura under section 302/149, P. P. C. For committing the murder of Bhulla. By his judgment dated 7th January, 1978 the learned trial Judge convicted Muhammad, Ashiq and Mehdi accused under section 302/34, P. P. C. And sentenced them to imprisonment for life each and to pay a fine of Rs. 3,000 each or in default of payment of fine, to further rigorous imprisonment for six months each. In case of realisation of the fine, a sum of Rs 6,000 was ordered to be paid as compensation to the legal heirs of Bhulla deceased under section 544-A, Cr. P. C. Noora and Bharpura accused were given the benefit of doubt and acquitted. The joint appeal filed by the convicts is now before me for disposal.
2. The brief facts of the case are that on the 27th of September, 1977 i. e. The day of occurrence, Mst.
Sahlan complainant and her son Bhulla deceased visited Sangla Hill for shopping. At about 5-00 p. m. They left Sangla Hill for their village. Sadkana. Just outside the Railway Station Sangla Hill, they came across Muhammad Yar P. W. 10 and Sultan P. W.
9. The four of them started on foot towards village Sadkana. There was a katcha pathway alongside the Rajbah of Jhor Mughlan. They reached near the bridge of Rajbah. At that time, the sun was setting. All of a sudden from near the bridge of Rajbah, Muhammad, Ashiq, Mehdi, Bharpura and Noora accused emerged. Mehdi accused was armed with a hatchet. The remaining four accused were armed with spears. They attacked Bhulla deceased. The deceased ran to save his life. The accused chased him. Ultimately, they overtook him and encircled him, and started causing him injuries. Bhulla deceased suffered serious injuries and fell down. The accused continued causing him injuries. The accused raised lalkaras during the course of occurrence that they had taken revenge for the murder of Shamir and Baghela. Then the accused ran away. Bhulla died on the spot. The motive for the occurrence was that 31 years back Shamir a brother of Muhammad accused and one Baghela were murdered. Baghela aforesaid was a relation of Muhammad accused. Fu, that murder, Bhulla (the deceased of the present case), his two brothers, Ghulam and Anwar, and a few others were challaned by the Police. Anwar and Jahana were sentenced to life imprisonment in that case. Bhulla deceased was sentenced to two years' R. I. He was on bail on the day of occurrence. Muhammad Yar P. W. 10 (of the present case) and Ghulam (a brother of Bhulla deceased) were acquitted. Mst. Sahlan lodged F. I. R. Exh. P. A. At police station Sangla Hill regarding the said occurrence, which was recorded at 7-30 p.m. By Muhammad Yaqoob S.I. P. W.
13. The Investigating Officer then reached the spot and collected blood-stained earth from the place of occurrence, vide memo. Exh. P. D. After preparing the necessary papers, he sent the dead body for post-mortem examination.
3. On 28th September, 1974 at 4 p.m. Dr. Muhammad Aslam Chaudheri P. W. I conducted the post- mortem examination on the dead body of Bhulla deceased and found eight incised wounds, five stab wounds, a bluish contusion and an abrasion on various parts of the body. The incised wounds were declared to be caused by sharp-edged weapon and the stab wounds by a sharp-edged pointed weapon. The other two injuries were held to have been caused by blunt weapon. Death, in the opinion of the doctor, was due to shock and haemorrhage, arising out of the four incised wounds on the neck and face of the deceased; which were sufficient to cause death in the ordinary course of nature. The duration between injuries and death was within a few minutes to an hour and between death and post-mortem about 20/24 hours.
4. On 29th September, 1974 Mehdi, Ashiq and Muhammad accused were arrested by Muhammad Yaqoob S. I. P. W.
13. Mehdi accused led to the recovery of a blood-stained hatchet P. 6 from his residential house which was taken into possession vide memo Exh. P. K. Ashiq accused led to the recovery of a blood-stained spear P. 7 from the rafters of the roof of his house, which was taken into possession vide memo. Exh. P. G. Muhammad accused led to the recovery of a spear P. 9 from his residential Kotha which was taken into possession' vide memo Exh. P. F. The said recoveries were witnessed by Manzoor P. W.
8. Hayat P. W. 11 and Yaqoob S. I. P. W. 13.
5. On 4th October. 1974 Noora and Bharpura accused were arrested by Muhammad Yaqoob S. I. P.
W. 13.
6. On 10th October, 1974 Noora accused led to the recovery of a spear P. 8 from the roof of his residential kotha, which was taken into possession vide memo Exh. P. H. The said recovery was witnessed by the same three persons who had witnessed the earlier recoveries.
7. After completing the investigation, the challan against the accused was sent up.
8: At the trial, the prosecution produced Mst. Sahlan P. W. 4 and Sultan P. W. 9 to prove the motive, the said two witnesses and Muhammad Yar P. W. 10 in proof of the ocular testimony, Sarfraz Ahmad P. W. 3 Manzoor P. W. 8, Hayat P. W. 11 and Muhammad Yaqoob S. I. P. W. 13 in support of the recoveries and Dr. Muhammad Aslant Chaudheri P. W. 1 to corroborate the medical testimony. At the trial all the accused denied the accusations levelled against them. Noora accused stated that he was falsely implicated because of enmity. Mehdi and Ashiq accused stated that they were implicated because of suspicion and party faction. Muhammad accused stated that he was implicated because of the enmity against him due to the murder of his brother by Bhulla deceased and his brothers, in which case they were challaned. Bharpura accused stated that in the same murder case he had appeared as P. W. Against Bhulla deceased and his brothers and he was, therefore, falsely implicated out of enmity. The accused examined Atta Ullah D. W. 1 in their defence.
9. At the trial Muhammad Yar P. W. 10, an eye-witness, and Muhammad Manzoor P. W. 8, a recovery witness, turned hostile. Mst. Sahlan's statement as an eye-witness could not be recorded because she had died before the trial. Her statement made before the Committing Magistrate was transferred to the Sessions. The learned trial Judge relying upon the evidence of Mst. Sahlan P. W. 4 and Sultan P. W. 9 with regard to the motive and the ocular account, the statements of Hayat P. W.
11 and Yaqoob S. I. P. W. 13 with regard to the recoveries and the evidence of Dr. Muhammad Aslam Chaudhari P. W. I in support of the medical testimony, convicted and sentenced three accused and acquitted the rest, as stated in para. 1 above.
10. I have heard the arguments of learned counsel for the appellants: and the State and have also perused the record. The evidence as regards motive is furnished by Mst. Sahlan P. W. 4 and Sultan P. W.
9. The same is reproduced in the brief facts submitted in para 2 above, which need not be repeated. Muhammad Ashiq and Mehdi appellants, in their statements recorded under section 342, Cr. P. C. Have admitted the same. The motive, therefore, stands adequately proved as against Muhammad appellant only. However, at this stage it may be mentioned that Baghela deceased who was murdered with Shamir, was not the father of Mehdi appellant. Sultan P. W. 9 stated in cross-examination that Baghela was father of Mehdi accused, but did not state that he was the same Baghela who was murdered. The learned Judge when he examined the appellant did not refer to Mehdi appellant as the son of Baghela who was murdered but merely stated that Shamir who was murdered was the brother of Muhammad appellant and that Baghela who was murdered was his relation.
11. The eye-witness on ocular account in the case is furnished by Mst. Sahlan P. W.
4. Sultan P. W. 9 and Muhammad Yar P. W.
10. Muhammad Yar P. W. 10 turned partly hostile by excluding the presence of Mehdi appellant and his statement recorded before the Committing Magistrate was transferred to the trial Court's file. Mst. Sahlan P. W, 4 is the mother of the deceased. Sultan P. W. 9 is remotely related to the deceased. Sona, father of Bhulla deceased was alleged to be his remote maternal-uncle. Muhammad Yar P. W. 10 is also remotely connected with the deceased, hailing from a common ancestor. Though it may be stated that Mst. Sahlan P. W. 4 and Muhammad Yar P.
W. 10 had a motive to implicate Muhammad appellant or Bharpura acquitted accused due to the previous murder case, but the same cannot be said for Sultan P. W.
9. In any case all three were natural witnesses. Just before the occurrence, they were proceeding to their village Sadkana. Mst.
Sahlan with her son Bhulla deceased had visited the market at Sangla Hill earlier that day. Sultan P.
W. 9 had made some purchases at Sangla Hill market. Muhammad Yar P. W. 10 had collected some money due to him from some Arthis at Sangla Hill. Both Sultan P. W. 9 and Muhammad Yar P. W. 10 joined Mst. Sahlan P. W. 4 and the deceased while leaving Sangla. Hill. They are natural witnesses and their presence cannot be doubted, Their testimony as regards the occurrence is constant. The story of the occurrence is given in the brief facts stated in para, 2 above and need not to be repeated.
There is some contradiction in their testimony with regard to the weapons of offence carried by the three appellants as against what was previously recorded by Mst. Sahlan in her F. I. R, Exh. P. A. At the trial all the three witnesses stated that Muhammad appellant carried a hatchet whereas Mehdi and Ashiq appellants carried spears, whereas in the F. I. R. Mst. Sahlan submitted that Mehdi carried a hatchet whereas Muhammad and Ashiq appellants carried spears, but this mistake in the F. I. R.
May be due to the fact that Mst. Sahlan made a bona fide mistake whilst having her statement recorded, due to the shock she had suffered. In view of the fact that two accused named by the eye-witnesses have been acquitted, it is necessary to look for corroboration in the instant case.
12. The evidence as regards recoveries is furnished by Manzoor P, W. 8, Hayat P. W. II and Muhammad Yaqoob S. I. P. W.
13. Manzoor Ahmad P. W. 8 was declared hostile as he tried to show that Mehdi appellant led to the recovery of a sofa instead of a spear. His evidence may, therefore, be left out. Hayat P. W. 11 clearly stated that Muhammad Ashiq and Mehdi appellants led to the recoveries of blood-stained hatchet P. 6 and blood-stained spears P. 7 and P. 8 respectively, which were taken into possession by the police vide memos, P. F., P. G. And P. K. Respectively. However, Yaqoob S. I. P. W. 13 submitted that Muhammad, Ashiq and Mehdi appellants led to the recoveries of blood-stained spears P. 9 and P. 7 and hatchet P. 6 respec--tively, vide memos Exh. P. F., P. G. And P. K. Respectively. Unfor--tunately, the testimony of the two recovery witnesses regarding the weapons of offence recovered at the instance of Muhammad and Mehdi appellants does not tally, but that recovered at the instance of Ashiq appellant does so. Muhammad Hayat P. W. Ii is not a witness of the locality. He lives six miles away from Sadkana. He initially suppressed his relationship, but later it was proved that Jahana was his maternal-uncle. Since Jahana was previously arrayed as an accused in the double murder case of Shamir and Baghela, he cannot be treated as a disinterested witness qua Muhammad appellant. At best, his testimony as against Ashiq appellant alone can be treated as of an independent nature. However, considering that one recovery witness has turned hostile and the testimony of the remaining two, including the Police Officer, is contradictory pua two appellants, it would not be safe to rely upon this testimony at all. In these circumstances, the three appellants are entitled to the benefit of doubt.
13. The medical testimony in this case does show that Bhulla deceased suffered many incised and stab wounds and one contusion, which would show that the number of assailants was at least more than three and they were armed with hatchets, spears and Bangs, but this testimony by itself cannot fix the distinct participation of any of the three appellants to the crime.
14. The upshot of the above discussion is that though there is ocular testimony which can be accepted, subject to corroboration, there is no confirmatory circumstance as against each appellant to clearly fix his participation in the crime.
15. For the foregoing reasons, this appeal is accepted and the conviction and sentences of the appellants are set aside. They shall be released forthwith, if not required in any other case. Fines, is recovered, shall be refunded to them.