JAVID IQBAL, J.---Jamal Din alias Mahla son of Umar Din, aged 80 years, armed with hatchet, has bees convicted under section 302, P.P.C. For the murders of Safdar All, aged 30 years, and Naheed Khalid, aged 12/13 years, both brothers inter se and Safdar Ali deceased being tenant of the appellant, and vide judgment dated 6th May, 1979 of the Additional Sessions Judge, Faisalabad, he was sentenced to death on each count plus fine of Rs. 1,000 on each count or in default to undergo six months, rigorous imprisonment with a direction that if the fine was realized from him, it should be paid as compensation to the heirs of the deceased. The appeal of the convict as well as Reference for the confirmation of death sentence awarded to him are being taken tip and disposed of together by this judgment.
The appellant had made a request for personal appearance from the Jail which was allowed. He was present in Court in the course of hearing of the appeal and he appears to be 80/85 years old, is infirm, weak-sighted and an old person.
2. The occurrence took place at 6-20 a.m. On 24th June, 1976 in Killa No. 15, square No. 6 of Chak No. 84/GB, at a distance of six miles from Police Station Sattiana, District Faisalabad. F.I.R. Exh. P.K. Was lodged by Muhammad Tariq P. W. 7, brother of the deceased, at 8-2 a. m. On the same day and it was recorded by Muhammad Hussain, S.I. P.W. 9.
3. The motive for the commission of crime, as stated in the F.I.R. Is that Safdar Ali deceased used to cultivate the land which had been allotted to the appellant as a tenant. Two months before the present occurrence he was asked by the appellant to vacate the said land as the appellant had suspected that he might not claim adverse possession of the same. Since he had not done so, it is stated that the appellant murdered both Safdar Ali and his younger brother Naheed Khalid.
4. The prosecution has produced two eye-witnesses of the occur--rence, namely, Muhammad Tariq P.W. 7, brother of the two deceased --and Hidayat P. W. 8, collateral of the two deceased.
Bashir Ahmad, father of the two deceased, was named in the F.I.R. As an eye-witness but was given up as unnecessary. According to the defence both the eye--witnesses produced were chance witnesses.
5. In the F.I. R. The occurrence is reported to have taken place in the following manner : On the fateful day both the deceased had gone to the disputed land in order to plough the same. Naheed Khalid deceased started ploughing the land and Safdar Ali deceased was standing there. The appellant came there armed with a hatchet and told Safdar Ali deceased that he had already been stopped from culti--vating and ploughing the said land and that he would be taught a lesson for ploughing the same. Then the appellant gave a hatchet blow which fell on the head of Safdar Ali deceased and thereafter he gave successive hatchet blows to Safdar Ali deceased on the neck and the head and he fell down. In the meantime Naheed Khalid deceased left the plough and advanced forward in order to rescue Safdar Ali deceased. But he was also attacked by the appellant. The appellant gave him a hatchet blow which fell on his head and he fell down.
Thereafter, he was given successive hatchet blows by the appellant. At that time Muhammad Tariq P. W. 7 was at a distance of 41 Karams from the spot and behind him were coming Bashir Ahmad (not produced) and Hidayat P. W.
8. They at one rushed to the scene of crime and raised alarm pleading the appellant that he should not be so cruel. The appellant waived his hatchet and threatened them that they should not come near, otherwise they would meet the same fate, Thereafter, the appellant ran away. The two deceased died on the spot and the occurrence was witnessed by Muhammad Tariq and Hidayat P. Ws. As well as Bashir Ahmad (not produced).
Leaving behind the two of them to guard the dead bodies Muhammad Tariq P. W. Proceeded to lodge the report.
6. The appellant was arrested on the following day, i.e. On 25th August, 1976. At his instance blood- stained hatchet P. 5 was recovered and taken into possession vide memo Exh. P. C. Dated 25th August, 1976. The attesting witnesses are Ghulam Muhammad P. W. 5, Fazal Ahmad (not produced) and Muhammad Hussain S. I. P. W.
9. According to the report of the Serologist Exh. P.Q. At page 11 of the Paper Book the said hatchet was found to be stained with human blood.
7. Dr. Abdul Haleem Sahota P.W. 6 conducted post-mortem examina--tion on the dead body of Naheed Kbalid at 9-CO a.m. On 25th August, 1976 and found the following injuries on his person :- (1)Incised wound 1-1/4" x 1/4" x muscle deep on the back of acromial part of right clavicle.
(2)An incised wound 1-3/4--- x ----- x muscles. The wound was situated on the right side of neck near the angle of mandible and was running transversely.
(3)An incised wound 1'' x 1 /3'' h skin over back of the right side of the neck. Wound was running transversely.
(4)A wound with clean cut margins 4" x 1-1/4" x bone cut from the left mastoid extending upto the posterior of the neck. The mastoid and first cervical vertebra were found cut.
(5)An incised wound 4'' x 1-1/4" x bone cut on the left side of head running anteroposterior. The parietal bone was found cut, and two cracks were in the occipital bone.
His stomach was empty. Bladder and small intestines were also crnpty. Death, in the opinion of the Medical Officer, occurred due to injuries 4 and 5 which proved fatal instantaneously and were sufficient to cause death in the ordinary course of nature. All the injuries had been caused by a sharp-edged weapon.
On the same day at 10-00 a.m. He conducted post-mortem examination on the dead body of Safdar Ali and found on his person the following injuries :- (1)A wound with clean cut edges 6" x 1-1/4" in the depth the bone was found cut. The hard pellet was also cut. On the left side of face, forehead and scalp starting from anterior and on the upper lip near mid line. Half of the left alae was separated. The hard pellet, the maxillary process were found cut. Left lower lid about 3/4" was separated and half of the left upper eye lid was separated. The left eye-brew was separated over 1/3". There was a cut present in the frontal bone also.
(2)An incised wound 4" x 1/2" x bone and muscle deep on the right side of face starting from outer end of right eye brew, cutting the lobule of right ear ending at the angle of mandible. The maxillary process on the upper and lateral part was found cut.
(3)An incised wound 2-1/4" x 1/2" x bone the left side of head, running obliquely. Half inch broad flap of periosteum was elevated on the left parietal bone.
(4)An incised wound 1-1/4'' x 1/4" x muscle on the left anterior of neck running from transversely with a tall half inch on the anterior of neck.
(5)An incised wound 3-1/4--- x 1/2" x upto vertebrae below the chin above the hyoid bone. The oesophagus and trachea were completely cut.
(6)Two wounds with clean cut edges intermingling each other on the left side ofneck.
Measurement was 6" x 2" x vertebrae was found cut. '
(7)An incised wound 2-3/4--- (intermingling with injury No. 6) x a cut in the mastoid bone and a 1" long cut through and through in the left pinna.
(8)An incised wound 2-1/4--- x 1/3" x muscle deep on the left middle finger extending upto the dorsum of the hand between 2nd and 3rd matacarpal bones.
His stomach contained four ounces of blood-stained liquid and bladder contained six ounces of urine. Death, in the opinion of the Medical Officer occurred due to the above injuries especially Nos.
1 to 7 which proved fatal on the spot and were sufficient to cause death in the ordinary course of nature. The injuries had been caused by a sharp-edged weapon. He stated in the cross- examination that injury No. 6 might have been caused by slaughtering with a chhuri and that the same could be said about injury No. 7.
8. The appellant, in his statement before the trial Court, admitted that Safdar Ali deceased used to cultivate the land which had been allotted to him but the rest of the motive he denied. He stated that Safder Ali deceased and Naheed Khalid deceased used to cultivate his land as he being an old man was unable to cultivate it himself. He had no apprehension that their possession as tenant would affect his allot--ment adversely. He totally denied having participated in the occurrence and disowned the recovery stating that he had been falsely implicated due to enmity. He further stated that he was innocent and that it was a blind murder as the occurrence had taken place during the night. He stated that he was present in Chak No. 66/JB on that night. Sardar Muhammad was enemy of Safdar Ali deceased because he had caused hatchet blows to his wife on 20th December, 1973. In this connection he produced copy of F.I.R. Exh. D.B. Which is at page 44 of the Paper Book. He likewise produced Exh. D.C., i. e. Lease deed of the disputed land in his favour which is at page 47 of the Paper Book. He stated that the complainant-party had falsely implicated him in the instant case in order to grab his land, because he was issueless. He was infirm due to old age and was unable to assault two men like Safdar Ali and Naheed Khalid deceased.
9. We have heard learned counsel, and carefully perused the record. The appellant had appeared before us and as it has been obser--ved, he did not only appear to be about 85 years old but had weak eye-sight, was infirm and was definitely an old man. The occurrence, in the instant case, is reported to have taken place about four years ago. Even at that time in our estimate he could have been an old and infirm person, incapable of wielding a hatchet and causing 13 injuries there--with to the two deceased, in the instant case, and thereafter when two of the eye-witnesses as well as father of the two deceased rushed to the scene, he offered a threat to them by waiving his hatchet and warning them not to come near, otherwise they would meet the same fate and then running away. The prosecution version is given by a brother of the two deceased and a collateral. Bashir Ahmad, father of the two deceased, was given up as unnecessary. They are closely " connected with the deceased and it has been vehemently argued before us that they were not present at the tithe of the occurrence, had not witnessed the same, were merely chance witnesses, had a motive to falsely implicate an old man in the commission of crime and that, therefore, their testimony should be disbelieved. Muhammad Tariq P.W. Stated in the cross-examination that according to the entries in Khasra Girdawari Exh. P. L. Land allotted to the appellant was being cultivated by Safdar Ali deceased. He stated that his father owned 12 acres of land in square Nos. 49, 50 and 64.
These squares were towards the South of square No. 6 whereas square No. 6 was situated towards North of t1he village Abadi. Squares 49 and 50 were towards the South of the village Abadi and square No. 64 was towards the last of the village Abadi. These squares were at a distance of 3/4 mile and four squares from the village Abadi. Square No. 6, where the occurrence took place, was 9 square away from square Nos. 49 and 50 and square No. 64 was 10 squares away from square No.
6. Hidayat P. W. Stated in the cross-examination that he owned four killas of land in square No. 50 and he used to cultivate his land himself. He stated that he saw the occurrence from South-Eastern side of square No. 6. Muhammad Tariq P. W. Was leading him as well as Bashir Ahmad (not produced). He was present in the field of someone else in order to cut fodder from square No. 8.
When the occurrence took place he, Muhammad Tariq P. W. And Bashir Ahmad rushed to the spot but the appellant held out the hatchet towards them and threatened them not to approach near.
Gin the basis of these statements it was argued by learned counsel that when the land belonging to Muhammad Tariq P. W. And his father as well as that which belonged to Hidayat P. W. Was situated so far away from square No. 6 in which the land was allotted to the appellant and was being cultivated by Safdar Ali deceased, then how could they be expected to be present early in the morning near the spot where the occurrence is stated to have taken place. The argument is that ordinarily if the occurrence took place at 6-20 in the morning, then these eye-witnesses should have been present on their own land. It was submitted that no cogent explanation had been given by Muhammad Tariq P. W. As to why and how he was present at a distance of 41 Karams from the spot and that Hidayat P.W. As well as Bashir Ahmad, his father were following him.
It was argued that Bashir Ahmad as well as Muhammad Tariq P.W. At that time should have been present in their own squares i.e. Nos. 49, 50 or 64. It was pointed out that Hidayat P.W. Had come out with an explanation that he was present in square No. 8 at some distance from the spot in order to cut fodder, although his land was situated in square No. 50, which was towards the South of the village Abadi. When he cultivated his own land himself, according to his statement, why should he go to somebody else's land for cutting fodder. On the basis of this evidence it was pointed out that since these witnesses were closely related to the deceased, they were interested and appeared as chance witnesses, who had no reason to be present near the spot at the time of occurrence. It was then submitted that both these witnesses were liars as both of them in their cross-examination had denied that one Sardar Muhammad of the Chak had lodged F. I. R. Under section 326, P. P. C. Three years before the present occurrence against Safdar Ali deceased with the allegation that he had caused injuries with hatchet to his wife. Learned counsel submitted that this F. H. R. Was produced in defence and is Exh. D. B. At page 44 of the Paper Book. Being brother and collateral of Safdar Ali deceased they should have known that such F. I. R. Was lodged. How--ever, they categorically stated that the suggestion was incorrect. It was submitted that from this an inference can be drawn that they had a motive to falsely implicate the appellant and while siding with Safdar Ali deceased they could even go to the extent of telling a lie. It was next submitted that the version given by the prosecution was impro--bable. According to the ocular testimony, the appellant, who was a very old man, was seen causing injuries not only to Safdar Ali deceased but also to Naheed Khalid deceased. The number of injuries caused to both the deceased, in the instant case is 13. It would have taken some time to cause these injuries. The statements of the eye-witnesses are to the effect that when the appellant was causing injuries to the deceased with his hatchet, the three of them rushed to the scene of crime. It was argued that these three persons, had they rushed to the scene of crime and saw that their two close relatives were being attacked with a hatchet, they certainly would have apprehended an old and infirm man like the appellant because they were three as opposed to one. It was submitted that the version or the fact that the appellant also threatened them not to approach near was improbable because being an old man the appellant could have been overpowered by the eye-witnesses who were three in number, had they been present at that time. Thus, it was submitted that the eye--witnesses, in the instant case, did not witness the occurrence at all but had come forward to give evidence because they were closely related to the deceased and had a motive to falsely implicate the appel--lant. Furthermore, they were chance witnesses, who had no reason to be present near the spot at the time of the occurrence. It was then submitted that even the motive, as set up by the prosecution, was not convincing. The appellant, in his statement before the trial Court, had admitted that Safdar Ali deceased was cultivating his land which was allotted to him vide lease deed Exh. D. C. At page 47 of the Paper Book. A perusal of this document indicated that it was State land and conse--quently there was no apprehension on the part of the appellant that the deceased could claim adverse possession of the same. The name of Safdar 'Ali deceased was entered in the Khasra Girdawari and there is nothing on the record to show that the appellant had the apprehen--sion that Safdar Ali deceased might claim ownership of the said land except the statements of the two eye- witnesses, in the instant case, who were interested witnesses and had a motive to falsely implicate the appellant. They had stated that two months before the present occurrence the appellant had asked Safdar Ali deceased to vacate the land because he was under the impression that his possession might not affect the allotment. However, Hidayat P. W. Had stated that Safdar Ali deceased had told the appellant that he would vacate the said land after harvesting the next Rabi crop. Had this been the position, then how could the appellant had a grudge against Safdar Ali deceased for having refused to vacate his land. It was next submitted that according to the Investigating Officer on 24th June, 1976 i. e. On the day of the occur--rence he did not arrest the appellant as he got the information that the appellant had gone towards Chak No. 66/JB. However on the follow--ing day i. e. 25th June, 1976 he arrested the appellant from his house in Chak No. 84/GB. It was submitted that had the appellant been the assailant, in the instant case, and if he had gone to the adjacent Chak on 24th June, 1976 after the commission of crime in order to avoid his arrest, there is no reason why he should return to his house in the village in the evening so that he could be arrested from his house on the following day by the Police. It was then submitted that if the ocular testimony was disbelieved as unreliable, then the recovery evidence, by itself, would not be sufficient to sustain conviction and sentence in the ins--tant case. Consequently, it was argued that the recovery evidence was fake and must not be considered to have any corroborative value because the ocular testimony consisted of chance witnesses, who were interested and inimical. It was further submitted that there were other enemies of Safdar Ali deceased as is apparent from Exh. D. B. Who could have committed the crime. Thus, it was argued that it was an unwit--nessed occurrence and the appellant had been falsely implicated due to suspicion/ enmity. It was also pointed out that even if the eyewit--nesses were not considered as inimical, it could not necessarily mean that what they had stated was not untrue. The truth or falsity of the statements of the eye-witnesses, in the instant case, largely depended upon the circumstances. If they were closely related to the deceased and were chance witnesses, the credibility of their testimony would be affected as it was only on the scrutiny of their evidence in the light of the circumstances that it was possible to say with certainty that their testimony was immune from all taints and was worthy of believing. Reliance in this connection was placed on Pir Muhammad Khan v. State (PLD 1970 Kar.
399). It was next submitted that since the eye-witnesses were chance witnesses, their testimony has to be examined with great care and caution. Reliance was placed on Daud v. State (PLD 1964 Kar. 428). It was also submitted that Khalil son of Sher Muhammad owned the adjoining land to the field where the occurrence took place. But the Investigating Officer, according to his statement, did not make him join the investigation or interrogate him. Since in the instant case no independent witness of the actual occurrence was forthcoming and the two eye-witnesses were both related to the deceased persons and chance witnesses, then the Investigating Agency should have made efforts to see that independent people residing in the area or having cultivation around the place of occurrence were examined. In this connection reliance was placed on Umedu v. The State (PLD 1959 Kar. 2573). It was submitted that evidence on capital charge must come from unimpeachable source or be supported from strong circumstances that might remove inherent doubt attaching to the evidence of interested witnesses. Learned counsel relied on Thoba v. State (PLD 1963 SC 40).
To sum up it was argued that since the ocular testimony, in the instant case, was not reliable, no reliance should be placed on the same.
We have carefully considered all the aspects of this case with the assistance of learned counsel and we are of the considered opinion that there is force in his arguments. The appellant is an old man and even at the time of occurrence he was old and infirm. It is difficult to believe that he would wield a hatchet and cause 13 injuries and thereby committed a double murder. Then when the eye-witnesses and the father of the deceased, who were close relatives of the deceased rushed to the spot, he could also threaten them to keep away and managed to escape without being apprehended by three stout men. So far as the ocular testimony is concerned, we have carefully scrutinized the same and in our opinion the two eye-witnesses were chance witnesses who had no reason to be present near the spot. In that view of the matter, in our view, they did not see the occurrence but since they were closely related to the two deceased, they implicated the appellant merely because he happened to be the lease-holder of the land which was being cultivated by Safdar Ali deceased as tenant. If no reliance is placed on the ocular testimony, then the recovery evidence, by itself, is not sufficient to sustain conviction and sentence. The motive version is also nut very convincing. If the appellant had asked Safdar Ali deceased to vacate his land and he had agreed to do so after the Rabi crop, there was no occasion on his part to murder the two deceased in the instant case. Thus, the motive as set up by the prosecution, is also not established. In any case, ii has been put up again by the two eye-witnesses, the credibility of whose testimony is doubtful. It is evident on the record that three years before the present occurrence Safdar Ali deceased had caused injuries with hatchet to the wife of one Muhammad Hussain of the same village and a case was registered against him under section 326, P. P. C. Thus, it is evident that there were other enemies of Safdar Ali deceased in the village. In the state of the record, as it is, we are of the con--sidered opinion that it was an unwitnessed occurrenc e but since it had taken place on the land which was in the occupation of the appellant, the appellant was implicated on suspicion/enmity. There is nothing on the record to show that the two deceased, in the instant case were present on the land in question in order to plough the same because the police did not taken into possession any ploughing implements from the spot. Therefore, there is uncertainty as to why the deceased were present on the spot at the time of the commission of crime.
In the light of the above discussion, we are of the view that the prosecution has not succeeded in establishing its case as against the appellant beyond any shadow of doubt. In the circumstances, he should have been given the benefit of doubt which we hereby give to him. The result is that the conviction as well as sentence awarded to the appellant is hereby set aside and he is acquitted.
The appeal is accepted. The appellant should be released forthwith from the jail if he is not wanted in any other case.
The death sentence awarded to him is not confirmed.