ZAKIUDDIN PAL, J.--Gulla son of Muradi (aged 55 years), Jehana son of Muradi (aged 70 years)
Ghulam Hussain son of Gaman (aged 50 years), Saee Muhammad son of Nawab (aged 80 years).
Rashid son of Karam (aged 30 years). Amir son of Jahana (aged 16 years), Sardara son of Shera (aged 40 years), Sardara son of Khan (aged 35 years), Nazra son of Mutalli (aged 45 years), Mutalli son of Raja (aged 60 years), Murtaza son of Ghulam Hussain (aged 25 years) and Bashir son of Shera (aged 35 years), all Jat Gondal by caste, cultivators, residents of village Harria, Tehsil Phalia, District Gujrat, have been found guilty under S. 148, P. P. C. For rioting being armed with deadly weapons and under S. 302/149, P. P. C. For committing the murders of Dari and Ata Muhammad, their co-villagers, in furtherance of the common object of the unlawful assembly. All of them, except Saee son of Nawab and Amir son of Jahana, have been sentenced to death. Amir and Saee have been sentenced to transportation for life on account of their ages. The appellants have filed Criminal Appeal No. 95 of 1971 for setting aside their respective convictions and sentences while the matter has also been referred to us by the learned Sessions Judge, Gujrat for the confirmation of the death sentence. This judgment will dispose of both, the appeal and the reference.
2. The F. I. R. (Exh. P. F.) in this case was lodged by Mst. Salhee (P. W. 7), sister of Dari (deceased) at 7 a.m. On 29th of May, 1967, at P. S. Malikwal, which is at a distance of five miles from the place of occurrence, while the occurrence took place on the same day at sunrise. The F. I. R. Was recorded by Malik Muhammad Masood (P. W. 14), S. H. O., Police Station, Malikwal. He after recording the same, went to the place of occurrence by a tonga. He reached there at about 8-30 a.m. He visited the spot where Dari (deceased) was alleged to have been murdered and found blood there. He took it into possession and made it into a sealed parcel vide memo. Exh. P. A. He then inspected the place of murder of Ata Muhammad (deceased) and found blood there. He scrapped the blood and made the same into a sealed parcel vide memo. Exh. P. B. He also found blood-stained chaddar (P. 1) near the place of murder of Dari (deceased) and made it into a sealed parcel vide memo. Exh. P. C. He also found blood-stained turban (P. 2) from near the place of murder of Ata Muhammad (deceased), took it into possession and made the same into a sealed parcel vide memo. Exh. P. D. Two empty cartridges of '12 bore gun (P. 3/1-2) were found by him near the place of occurrence which he took into possession and made them into a sealed parcel vide memo. Exh. P.
E. Jahana, appellant, was produced before him by A. S. 1. The S. -H. O. Arrested him. He found washed stains of blood on chaddar (P. 6) and shirt (P. 7) of Jahana, appellant. He took both the articles into possession and made them into a sealed parcel vide memo. Exh. P. H. According to this witness, Jahana appellant led him and the Police Party to the path through which the dead bodies.
Of the deceased persons were taken to the river side. The Investigation Officer found trial of blood right from the place of occurrence up to the bank of river Jhelum. At a distance of 2/3 furlongs from the spot towards river Jhelum. The witness found sufficient blood near a deserted road Roller. He scrapped it and made the same into a sealed parcel vide memo. Ex. P. U/1. Blood in sufficient quantity was also found by him towards the east of the dera of Jahana, appellant, which was scrapped by the witness and made into a sealed parcel vide memo. Exh. P. S. The witness further collected the blood-stained sand and straws from the bank of river Jhelum and made them into a sealed parcel vide memo. Exh. P. T. He also found few pieces of human bones, hair and skin near the bank of the river, which he took into possession and made them into a sealed parcel vide memo. Exh. P. V. The S. H. O. Further found two live bullets (P. 15/1-2) from near the bank of the river took them into possession and made into a sealed parcel vide memo. Exh. P./1. At the instance of P.
W. 14, the place near the bank of river Jhelum was photographed by Manzur Elahi (P. W. 9). These photographs and their negatives were taken into possession by the S. H. O. vide memo. Exh. P. Y.
According to this witness, he took into possession two mares-one red in colour and the other green in colour, vide memo. Exhs. P. J. And P. K. Respectively, at the pointing out of Jahana, appellant, on 31st of May, 1967. The appellants Saee, Rashid, Amir, Sardara son of Shera, Sardara son of Khan alias Khanu, Nazra, Mutalli, Murtiza, and Bashir were arrested by him on 1st of June, 1967. According to the witness, Mutalli, appellant, led to the recovery of blood--stained barchhi (P. 8) from his house, which the S. H. O. Took into possession vide memo. Exh. P. L. On 3rd of June, 1967. Murtiza appellant also led the S. H. O. To the recovery of a spear stained with blood (P. 9) buried under the ground near his chhan, which was taken into possession by the witness and made into a sealed parcel vide memo. Exh. P. M. Similarly at the pointing out of Rashid, appellant, spade (P. 10) stained with blood was recovered from the roof of his house. It was taken into possession by the S. H. O. And made into a sealed parcel vide memo. Exh. P. N. Rifle (P. 11) belonging to Jahana, appellant. Was recovered at his instance from the box lying at his house. The same was taken into possession and made into a sealed parcel vide memo. Exh. P. O. Gulla and Ghulam Hussain, appellants, were arrested by the S. H. O. On 4th of July 1967. Blood-stained toka (P. 13) and blood-stained Jhol (P. 12) were recovered from the Dera of Gulla, appellant, at his instance. They were taken into possession and made into sealed parcels vide memo. Exh. Exh. P. O, and Exh. P. O./B Jhol (P. 14) stained with blood was also recovered from the kotha of Ghulam Hussain. Appellant, and was taken into possession and made into a sealed parcel vide memo. Exh. P. R. According to P. W. 14, every possible effort was made to find out the dead bodies or pieces of the dead bodies of the deceased persons, but to no avail. It is admitted in this case that the dead bodies could not be traced out.
3. The prosecution case as set out in the F. I. R. Is that 22/23 years ago when Bati son of Dari was plucking the melons from the field of Dari (deceased) both the persons along with their companions fought against each other and used sotas in the fight. Saee son of Shahu, Dari (deceased) Mutalli son of Shera and Khanun son of Maulu, all residents of Harria, belonging to the party of the complainant, Mst. Saihee, were challaned as a result of this fight. They all were convicted and sentenced to three months' R. I. Each by the Court. After about four years of this incident. Bati son of Dari, Mutalli son of Raja. Saee son of Shahu, all residents of the same village, inflicted injuries on the body of Dari (deceased) with sotas. The all four were challaned and found ' guilty and sentenced to pay fine for committing theoffence. After two years of this incident, there was again fight between the two factions in which Dari (deceased) was injured while Bati died on account of the injuries. In this case of murder, Nazira son of Saee. Bashir son of Saee, Qadir son of Karam, Gullu son of Khanun, all belonging to the faction of Dari (deceased) were challaned, convicted and sentenced to death by the Sessions Judge, Gujrat. However, the sentence of these persons was altered in appeal by the High Court to transportation for life.
On the day of occurrence, complainant Mst. Salhee and her brother Dari (deceased) went to their behak at sunrise. Ata Muhammad (deceased) who was related to the complainant, was also residing there for the last about two years. According to the complainant, she had been deserted by her husband for the last 14/15 years and was thus putting up along with her brother Dari (deceased). At the time of sunrise when they reached their behak, they saw that Gulla son of Murad armed with rifle, riding a mare, Jahana son of Murad armed with gun, riding a mare, Nazra son of Mutalli armed with rifle, riding a mare, Dari son of Bashira armed with gun, riding a mare, Mutalli son of Raja armed with balam riding a mare, Amir son of Jahana armed with a balam, Ghulam Hussain son of Gama armed with a balam. Sher son of Karam, armed with balam, Murtaza alias Muhammadu son of Hussain armed with balam. Bashir son of Shera armed with balam, Sardara son of Khanun armed with balam and Saee son of Nawab armed with balam came out of the havell of Gulla, meant for cattle. They all were raising lalkara and reached the behak where the complainant, her deceased brother, Dari, and Ata Muhammad (deceased) were present. Gulla and Jahana, appellants, fired with their rifle and gun, respectively, at Dari (deceased) who fell down on account of the injuries, Nazra and Dari, appellants, with their rifle and gun, respectively, fired at Ata Muhammad (deceased), who also fell down on account of that. The rest of the appellants, who were armed with balams inflicted injuries upon the bodies of Dari and Ata Muhammad (deceased) with their weapons. They both were killed at the spot. The complainant raised alarm on this incident and Ghulam Hussain son of Nawaz and Inayat son of Bati were attracted to the spot. Thereafter Nazra and Gulla appellants placed a bundle of the dead body of Dari (deceased) at one of their mares while the dead body of Ata Muhammad. (deceased) was placed by Amir and Jahana, appellants, on the other mare. All the appellants then went away along with the dead bodies towards river Jhelum.
4. All the appellants belong to village Harria, P. S. Malikwal, District Gujrat. Gulla and Jahana, appellants, are real brothers, Mutalli appellant is their cousin brother. Amir appellant is son of Jahana appellant. Saee appellant is the uncle of Gulla and Jahana appellants. Ghulam Hussain, Rashid and Nazra appellants are cousins inter se and Murtaza appellant is the son of Ghulam Hussain appellant. All these persons are not related to the previously mentioned appellants, but they are alleged to be their party men. Sardar son of Shera and Bashir appellants are brothers while Sardar son of Khanun appellant is their brother-in-law. They are also stated to be party men of Gulla and Jahana, appellants.
5. The ocular evidence in this consists of the statements of Mst. Salhee (P. W. 7) and Muhammad Inayat . (P. W. 8). Both of them have supported the prosecution version in all material respects. It has been argued that presence of Mst. Salhee (P. W.) on the spot at the time of occurrence is highly doubtful. It is submitted that if she had been deserted by her husband as alleged by her then Ghulam Qadir would not have pursued the case so diligently as he has been doing after the commission of the crime of the murders. According to Mst. Salhee (P. W.) her husband had married a second wife since long and she had been putting up thereafter along with her brother Dari (deceased). It has not been denied that her husband, Ghularn Qadir, has married second wife and in the presence of this fact explanation given by Mst. Salhee (P. W.) appears to be correct. Nothing else has been brought on record to show that Mst. Salbee (P. W.) has not been residing with her brother. As such the contention of the learned counsel for the appellants in this respect has no force. The presence of Muhammad Inayat at the place of the occurrence (P. W. 8) has also been challenged on the ground that the land which he was allegedly ploughing at the time of the incident was never shown in his occupation as tenant. The explanation as given by him with regard to this aspect of the case is that the land in question belonged to Anara. Mst. Fatima and Mst.
Resulan and he was working as their tenant for the last two years before the occurrence. According to him, he continued to be their tenant even two years after the occurrence and thereafter the said land was taken away from them on account of consolidation proceedings. Muhammad Inayat (P.
W.) has further submitted that he was not shown as tenant in the revenue record because the owners preferred to be shown as self-cultivators of the land in question. It has not been denied by the learned counsel for the appellants that at present many of the land owners do not allow their tenants to be shown as such in the revenue record for the reason that in case of any dispute between the tenants and then the ejectment of a person shown as tenant cannot be easily effected under the law. It may be mentioned here that the appellants did not put any further question about Muhammad Inayat (P. W.) to the other witnesses belonging to the same village as to whether the said witness was tilling the land of Anara. Etc., in the village or not. It is apparent that if there was any doubt with regard to the factual position, then the same could be got clarified from other P. Ws. Belonging to the same village or by producing some persons in defence.
6. The old enmity between G ulla and Jahana, appellants and the deceased Dari and his other relations is admitted by the appellants in their statements under section 342, before the Committing Magistrate as well as before the Sessions Judge. About 25/26 years ago, Bati, brother of Gulla and Jahana, appellants committed a theft of melons belonging to Dari, deceased. This led to fight among them. Dari, deceased and his three other co-assailants assaulted Bati and his father Muradi. On account of this fight Dari, deceased and his co-assailants were challaned, convicted and sentenced to three months rigorous imprisonment each as mentioned above. This incident created enmity between Gulla and Jahana on the one side and the deceased party on the other side. Thereafter Dari, deceased was assaulted by Bati, real brother of Gulla and Jahana, appellants and few others. All these assailants were challaned but were not convicted. Two years before the present occurrence, Bati, brother of Gulla and Jahana, appellants, was murdered and Bashir, Nazir, Nadir and Gulla, close relatives of Dari, deceased were challaned and prosecuted.
They were sentenced to death by the Sessions Judge out on appeal to the High Court their death sentence was altered into transportation for life. All these facts have been admitted by the two appellants, Gulla and lahana in their statements. It is the prosecution case that the other appellants participated in the assault on Dari and Ata Muhammad, deceased along with these two appellants. This allegation has been denied by all the accused persons. We are, however, to sift out the true position out of the evidence brought on record, and to see as to how many of them are responsible for the crime of their murder, P. W. 7 Salhee, sister of Dari, deceased has clearly stated the incident involving the death of his brother Dari and his near relation. Ata Muhammad at the hands of the appellants. Her statement has been fully corroborated by P. W. 8 Muhammad Inayat who is not related to the deceased person in any manner. He is an independent witness and nothing has been brought on record to discredit his version. The circumstances of the case show that Mst. Salhee and Muhammad Inayat are the natural witnesses and not the B chance witnesses as alleged by . The defence. The incident took place a sunries and the F. I. R. Was lodged by P. W. 7 at 7-00 a. m. On the same day. The version as given in the F. I. R. Has been fully corroborated by P.
Ws. 7 and 8 in their statements. Their version further gets corroboration from the circumstantial evidence. When P. W. 14 Malik Muhammad Masood, Investigation Officer reached the spot after having recorded the F. I. R. He found blood there on the places where Dari and Ata Muhammad, deceased had been murdered. He also found blood-stained Chaddar Exh. P. 1 near the place of murder of Dari and blood-stained Turban, Exh. P. 2 near the place of murder of Ata Muhammad. He further found two empty cartridges of '12 bore, Exh. P. 3/1-2 near the place of occurrence. He also found trail of blood right from the place of occurrence up to the bank of river Jhelum. At a distance of 2 or 3 furlongs from the spot towards the river Jhelum, sufficient blood near a deserted Road Roller was found. He also found blood in sufficient quantity towards the east of Dera of Jahana, appellant. When P. W. 14 reached the bank of river Jhelum, he found lot of blood--stained sand and straws. P. W. 11 arrested Jahana, appellant on the same day at about 12-00 noon and found washed stains of blood on Chaddar, Exh. P. 6 and shirt Exh. P. 7 belonging to Jahana, appellant. It is admitted that the dead bodies of both the deceased persons have not been found, but the circumstances leading' to their murder as detailed in the F. I. R. Get full corroboration from the circumstantial evidence as discussed above` P. W. 14 Malik Muhammad Masoad, Investigation Officer reached the spot at about 8-30 a. m.. In the morning on the same day and found the above mentioned circumstantial evidence available there. All this leaves no doubt that Dari and Ata Muhammad deceased were murdered.
7. It has been argued that P. W. 8 Muhammad Inayat has admitted in his statement before the Sessions Judge that after he had ploughed one kanal of land, the occurrence took place. He has further admitted in cross- examination that when he reached his field for ploughing, the sun had just come out of the horizon. The incident took place on 20th of May, 1967, at sunrise. According to the learned Sessions Judge sun rose on that day at 5-05 a. m. It is argued that when the incident took place at sunrise and P. W. 8 reached his field after sun had just come out of the herizon and according to him he had ploughed one Kanal of land when the incident took place, then in the circumstances he could not witness the occurrence being not present there. This contention has no force. One kanal of land can be ploughed easily within an hour or so. If P. W. 8 reached his field from where he witnessed the occurrence at the time when sun had just come out of the horizon meaning thereby that the sun was still rising, then the occurrence at the most may have taken place by 6-00 a. m. It has been argued that if the incident took place at 6-00 a. m. Then it was not sunrise at that time. We see no force in this argument. It is clearly stated in the F. I. R. That the sun had already arisen when complainant Salhee and her brother Dari, deceased reached their behak.
As such the presence of P. W. 8, Muhammad Inayat at the spot cannot be doubted. It has been further argued that according to the site plan prepared by the Patwari, the field from where-P. W. 8, Muhammad Inayat was shown to have witnessed the occurrence belonged to Mehram and Salam and not to Anara and others. It is argued that the site plan does not show any field in the ownership of Anara and others and as the field bearing Khasra No. 1618/2 from where P. W. 8 saw the occurrence is owned by Mehram and Salam, therefore, his presence at the time of occurrence at the spot as mentioned above is not proved. We see no force in this contention. P. W. 8 has stated in his statement that he was ploughing his field belonging to Anara and others as their . Tenant at the time when he saw the accused persons coming towards the deceased persons raising lalkara. On seeing this he stopped his work and went towards the behak of the deceased. He never said that the field from where he witnessed the occurrence belonged to Anara and others. C Nothing has been brought on record to show that Anara and others did not own any land near the place of occurrence. In the circumstances, the presence of P. W. 8 is fully established at the time when the occurrence took place.
8. The learned counsel for the appellant has not denied the occurrence. His main stress has been on the point that the appellants were not responsible for these murders. Now we have to see from the material placed on record as to whether the appellants are connected with these murders or not. The old enmity between Gulla and Jahana, appellants on the one side and Dari, deceased on the other side has not been denied. It has, however been argued that Dari, deceased did not kill Bati, brother of Gulla and Jabana. The prosecution case is that Dari, deceased was also involved in the incident which led to the murder of Bati. He was also injured but he was neither challaned nor convicted. The four persons, i. e. Bashir, Nazar Qadir and Gulla, who were found responsible for the murder of Bati, were convicted and sentenced to death by the Sessions Judge, but their death sentence was converted into transportation for life in appeal by the High Court. Gulla and Jahana in their statements have asserted that the said four persons who killed Bati were nearer relations of P. Ws. In the case than Dari, deceased, while the prosecution has alleged that they were close relations of Dari. It is however, admitted that they were quite near to Dari, deceased. Since Dari had been the moving figure during the last 25/26 years in many incidents arising out of enmity between the parties, therefore it cannot be said with certainty that he was not responsible for the murder of Bati. Moreover the circumstances of the case show that appellants always took him as responsible to this crime of murder. Therefore, the naming of Gulla and Jahana, appellants among the other accused persons in the F. I. R. By P. W. 7 being responsible for the murder of Dari and Ata Muhammad, deceased appears to be correct. It is admitted that Gulla, Jahana and Bati, deceased are real brothers. Muttali, appellant is their cousin. Amir is son of Jahana, appellant and Saee is uncle of both Gulla and Jahana. The remaining appellants are alleged to be belonging to their faction. Gulla and Ghulam Hussain, both have raised plea of alibi in their statements. According to them both were travelling by train which left Haryia at 3-30 a. m. On the day of occurrence for Gujranwala via Lala Musa. This train reached Gujran--wala at 8-45 a. m. During the journey pocket of Gulla was picked and their tickets which were lying in the pocket were stolen there. According to both the appellants when they reached Gujranwala, both of them were apprehended at the railway station by two Ticket Collectors and were handed over to Police who produced them to the Railway Magistrate before whom they confessed their guilt and were fined to pay 10 rupees each or in default to undergo imprisonment for four days. Since they had no money on them, therefore, they did not pay the fine and were sent to the jail. In ,support of this alibi, D. Ws. 1 to 3 have been produced. D. W. 1 Faizullah Khan, Head Ticket Collector, Railway Station, Gujranwala, has stated that both the appellants Gulla and Ghulam Hussain were caught by Abdul Hafeez, Ticket Collector and Muhammad Saleem Bhatti then Head Ticket Collector while travelling without ticket at Gujranwala Town Railway Station on 29th May, 1967, at 8-55 a. m. It was further stated by this witness that Abdul Hafeez, Ticket Collector has gone to England and Muhammad Saleem Bhatti was posted at Sukkur and after that he did not work with any of them nor he saw them writing or signing. Memo No. 696642 Exh. DD and Memo. No. 696643 Exh. D. E. Were prepared for the recovery of railway fare from Gulla and Ghulam Hussain, respectively by the said Ticket Collectors. Since they could not pay the amount, therefore they were handed over to D. W. 2 Ghulam Sbah, the then Incharge, Railway Police Post, Gujranwala who arrested them and produced them before the Railway Magistrate. D.
W. 2 admitted in cross-examination that Ghulam Haider, Head Constable, Railway Police was real brother. Of Gulla and Jahana, appellants. He further admitted that at the time when Gulla and Ghulam Hussain were apprehended at the Gujranwala Railway Station, Ghulam Haider was posted at-Sargodha. He also admitted that neither Gulla nor Ghulam Hussain made any report about the theft of their money or tickets nor he ever appeared before the Police during the course of investigation of the murder of Dari and Ata Muhammad. D. W.
3. Muhammad Yousaf, Assistant Superintendent Jail, Gujranwala deposed that both the appellants Gulla and Muhammad Hussain were lodged in the Gujranwala Jail on the same day when they were apprehended. D. W. 3 admitted in his cross-examination that both the appellants did not thumb-mark the register in his presence and they also refused to file appeal against their conviction and sentence by the Railway Magistrate. He further admitted that neither the register was ever produced before the Police nor he himself appeared in order to give statement in connection with the murder of Dari and Ata Muhammad deceased. The learned counsel for the appellants has argued that if the murder took place at sunrise at village Haryia, Police Station Malakwal, District Gujrat, then it was impossible for Gulla and Ghulam Hussain to be pre$ent at Gujranwala Railway Station at 8-55 a. m. On the day when the occurrence took place. The distance between Gujrat and Gujranwaja is about 30 miles.
The village Haryia is connected with Gujrat and Lala Musa by a metalled road. Keeping in view the fact that the means of communication are swift these days, possibility cannot be ruled out that both the appellants could reach Gujranwala even if they had started from the place of occurrence at 7-00 a. m. Moreover the fact that Ghulam Haider, Head Constable, Railway Police who is brother of Gulla and Jahana, appellants casts doubt about the genuineness of the plea of alibi raised by both the above-mentioned appellants. This Ghulam Haider was challaned but was later on discharged. In the circumstances of the case the possibility that he helped both the accused persons in the creation of alibi cannot be ruled out. Moreover the conduct of both the appellants Gulla and Ghulam Hussain makes their case doubtful. They did not lodge any report with the Police about the theft of their money and tickets nor they filed any appeal against the conviction and sentence awarded by the Railway Magistrate. It appears as if they wanted to remain in jail for some purpose. If they were the genuine travellers then they could arrange the payment of Rs. 20 as fine imposed upon them in order to avoid going to jail. Even while in Jail they could send message to their relations for the payment of the fine so that they could come out of jail, as early as possible.
No such effort was ever made by them. This all shows as if they had manoeuvred to get into the Jail.
9. The circumstantial evidence in the form of recoveries further corroborates the version of P. W. 7 and P. W. 8 and also connects some of the appellants with the murder of the two persons. In addition to the recoveries of blood -stained earth from the place of murder, chaddar P. 1 and Pagri P. 2 belonging to Dari and Ata Muhammad, deceased respectively and two empty cartridges P. 3/1- 2 vide recovery memos. Exhs. P. A., P. B., P. C., P. D. And P. E. Respectively, three other recoveries from the appellants D connect them with the murder of the deceased persons. Jahana, appellant was arrested at 12-00 noon on the day when the occurrence took place. He was wearing chaddar P. 6 and shirt P. 7, washed stains of blood were found on both of them. Both the articles were taken into possession vide memo. Exh. P. H. He further produced before the Police two mares on 31st May, 1967 vide Memos, Exh. P. J. And P. K. Mattali, appellant led to recovery of barchhi Exh. P. 8 from his house.
It was taken into possession vide memo. Exh. P. L. Murtaza, appellant led to the recovery of blood- stained spear buried in the ground near his chhan. This was taken into possession vide memo, Exh.
P. M. Rashid led to. The recovery of blood-stained barchhi from the roof his house and the same was taken into possession by the Police vide memo. Exh. P. M. Jahana, appellant, led to the recovery of his rifle lying in the box at his house which was taken into possession vide memo. Exh. P. O. Gulla and Ghulam Hussain were arrested on the 4th of July, 1967. Gulla led to the recovery of his blood- stained toka and Jhol at his dera on 15th of July, 1967 and both were taken into possession vide memos. Exhs. P. Q and P. G./B respectively. Ghulam Hussain, appellant similarly led to the recovery of blood-stained jhol from his kotha and the same was taken into possession vide memo Exh. P. R.
The names of all these persons have been mentioned in the F. I. R. Which was lodged within an hour or so from the time when the occurrence took place. The part played by them has also been ascribed in the report by P. W.
7. According to the report of the serologist the blood on all the articles as mentioned above was found to be human. It has been argued that even if it is accepted that some of the appellants had some motive to kill the deceased persons then the number of the assailants has been exaggerated by the prosecution. It may be so. The tendency in our country to include the names of innocent persons among the accused cannot be ruled out. But from the material o the record, the circumstances of tae case and the corroborative evidence in the form of recoveries clearly indicate that Gulla, Jahana, Mattali, Murtaza, Rashid and Ghulam Hussain are connected with the murder of Dari an Ata Muhammad, due. The learned Sessions Judge has rightly found them guilty under section 302/149 for committing the murder of both the deceased persons.
The death sentence awarded to them is hereby confirmed. In the case of the remaining appellants their connection has not been proved by any corroborative evidence. Nothing has been recovered from them also by the Police. Amir, appellant was admittedly of 12/13 years of age at the time of occurrence. Similarly Saee, appellant was of 80 years of age. I cannot be believed that with such ages they could participate in the incident which led to the murder of both the deceased persons.
We, therefore, giving the benefit of doubt, acquit them of the charge and direct that they shall be set at liberty at once unless they are required lawfully in any other case. The appeals of Sardara son of Shera and Sardara son of Kbanu, Nazra, Bashir, Amir and Saee are accepted. The reference is answered accordingly.