MUHAMMAD MUNIR FARUQUEE, J.-Ghulam and his brother Haider (appellants) were tried along with Haider, son of Salehon and Ghulam Ali son of Baqri by the Additional Sessions Judge, Gujrat, for the murder of Suba (deceased) who acquitted their companions but convicting them under section 302/34, P. P. C., sentenced Ghulam (appellant) to transportation for life and Haider (appellant) to death on the 3rd of June 1968. They have filed this appeal to question the correctness of the order of their conviction and there is also before us the usual reference under section 374, Cr. P. C. For the confirmation of death sentence. We propose' to dispose of the to matters by this judgment.
2. The incident, involving the death of Suba (deceased) took place on the 21st of July 1966, at chhawela on the Gujrat-Phalia Road, in. The area of village Luk, Police Station Phalia, District Gujrat.
3. The prosecution case, ink brief, is that Suba (deceased) and Bahawal P. W. Were going towards the behk of the former, situate at a distance of one killa in the north of Phalia-Gujrat Road on the night of 19/20th of July 1966, at about Isha prayer the and found Ghulam (appellant) cutting a fallen kiker tree on the road side. Suba (deceased) objec--ted to it and gave a few slaps to him in reprimand which greatly annoyed the appellant who threatened him with dire consequences.
Ghulam (appellant) seems to have later instigated his brother Haider (appellant). And the' to acquitted accused to avenge this insult and in' furtherance of this common intention they decided to deal with Suba (deceased) on his way back to the village.
4. It so happened that the Assistant Consolidation Officer was in camp in village Luk on the fateful day and Suba (deceased), leaving his brother Sardar with their cattle at the behk proceeded to the village at about chhawela and as he reached the main road the to appellants Ghulam and Haider accompanied by Haider son of Salehon and Ghulam Ali son of Baqri way laid him. They had hid themselves in a cluster of trees in a nearly khatan and seeing him approach the road side they turned out of the ambush and surrounded him. They were armed with lathis. Ghulam (appellant) gave a lalkara exhorting the others to kill Suba (deceased) who planted a blow each on his head and felled him to the ground. Haider (appellant) and Haider' son of Salehon (acquitted accused) also administered a blow each on his right arm after his fall. The hue and cry of Suba. (deceased) attracted the notice of Sardara P. W. From his behk; and Inayat and Nawab from their respective behks at the same the and seeing them approach the to appellants made good their escape. They found Suba lying unconscious in a pool of blood so they immediately carried him to Civil Hospital, Phalia, where Dr. Ghulam Ahmad examined him at 2-00 p.m. On the same day i.e. 21st of July 1966, and found the following injuries on his person :-
(1) A contused wound 1" x --" scalp deep on the left side of head, just behind the left ear, and oblique in direction:
(2) A contusion 3" x 3--" on the left side of head, just above left ear.
(3) A contusion 3" x 1" on the right forehead, 3" above the outer end of the right eye-brew.
(4) A contused wound 1" x --" x bone deep on the inner side of right elbow at the inner condile of right humerus bone.
(5) A contusion 1" x 1" on the outer side right elbow joint.
Both the eyes were swollen and tightly closed. The colour of the lids were bluish: The tight elbow joint was swollen. There was bleeding from the left ear and both the nostrils. The patient was unconscious; restless and in a precarious condition. Injury Nos. 1 and 4 were bleeding profusely..
Pulse was 60 per minute. All the injuries were kept under observation and were caused with a blunt weapon in a few hours. The medico-!..Gal report Exh. P. J. Was sent by the doctor through Sardara P.
W. 'to the police station where Muharrir Head Constable Akbar Ali P. W. Recorded the state--ment Exh. P. C. And registering this case at 2-30 p.m. Forwarded the formal report to A. S. I. Mahmood Ahmad P. W. Who was on a Gasht in the neighbourhood of village Luk at that the, through F. Cs.
Muhammad Ashraf and Mehr Khan.
5. On receipt of the report Exh. P. C. Mahmood Ahmad A. S. I. Reached the spot at 4-30 p.m. On the same day. He inspected the spot arid taking the blood-stained earth into his possession, sealed it into a parcel vide Memo. Exh. P. B. And later recorded the statements of the relevant witnesses. He stayed in the village for the night for completing the investigating of the case. Suba; (deceased) succumbed to the injuries on the 23rd of July 1966, at 7-30 a.m. And the A. S. I. Was informed about it vide ruqqa Exh. P. K. He accordingly went to the hospital and despatched the dead body to the mortuary after the preparation of necessary inquest report Exh. P. W, and injury statement Exh. P.
F./1. On the same day he received back the clothes of the deceased Exhs. P. 1 to 3 from the mortuary through the foot-constable 10uhammad Akbar who had accompanied the dead body and took them into possession vide Exh. P. A. He deposited all the Scaled parcels at the police station on the 24th of July 1966. He also got prepared the site plans Exhs. P. G. And P. H. Through Muhammad Feroze Patwari and putting his notes in red ink on the same signed it in token of its correctness.
6. Mehr Ahmad Khan S. I. Reached the spot on the 23 July 1967, and relieved the A. S. I. Of the investigation of this case. He arrested Ghulam and Haider sons of Hussain and Haider son of Salehon on the 24th of July 1967. Haider son of Salehon (acquitted accused) led the S. I. To his house and got recovered blood stated dang P. 1 which was sealed into a parcel vide Memo. Exh. P.
D. Thereafter Haider son of Hussain led the S:
1. To the recovery of blood-stained lathi P. 5 which was taken into possession vide Memo. Exh P. E. He arrested Ghulam Ali acquitted (accused) on the 26th of July 1965. Nawab Khan (P. W. 11) produced before the S. 1. a copy of his report Exh. P. M. On the 27th of July 1966, which was taken into possession vide Exh. P. M./1. The to sealed parcels of lathisrd were deposited `for safe custody in the Police Station Malkhana. The blood-stained earth and lathis P. 4 and 5 were found stained with blood by the Chemical Examiner vide his report Exh. P. Q. The blood on lathi F. 5 recovered from Haider son of Salehon had disintegrated so its origin could not be determined while the origin of the blood on the earth and lathi P. 4 of Haider (appellant) was that of human vide report of Serologist Exh. P. R.
7. The same doctor had held the autopsy on the dead body of the deceased on, the 23rd of July 1966, at 1-00 p. m. Idle Exhs, P. L. And P. L/1 and noted the same injuries on the dead body its mentioned by him in his medico-legal report Exh. P. J. On internal examination he found clotted blood under injury No. 1 and there was subdural haemorrhage coverings the whole surface of cerabral hemisphere. The left occipital, temporal and parietal bones were depressed and fractured into many pieces. As a result of injury No. 2 the right parietal bone was also fractured into to pieces which was continuous with the left parietal bone. The anterior cranial fossa was fractured into three parts. All the internal organs were, healthy. The stomach was empty. The small intestines were empty. The large intestines contained fluid like material at places. The bladder was empty. "In the opinion of the doctor the cause of death was shock and compression of the brain due to depressed fractures of skull bones and subdural haemorrhage covering the surface of the brain, resulting from injury Nos. 1 and 2. These injuries were Sufficient to case death in the ordinary course of nature and were grievous in nature. Injury No. 4 was also grievous. Injury Nos. 3 and 5 were simple. All the injuries were caused by blunt weapon and were ante-mortem. Probable the that elapsed between injury and death. Yeas about 44 hours and between death and post-mortem was 5-- hours. The evidence of this witness has established beyond any shadow of doubt that death of Suba (deceased) was the result of violence.
8. The to appellants and their companions (the acquit--ted' accused) had denied all the allegations made against them and averring false implication due to enmity with the prosecution witnesses had pleaded not guilty to the charge but led no evidence in defence.
9. At the trial the prosecution has relied on the testi--mony of Sardar P. W. 8, Inayat ' P. W. 9, Nawab P. W. 10 for the eye-witness account of the occurrence, Sardar P. W. 8, Nawab Khan (Forest Guard)
P. W. 11, Baliawal P. W. 12 and Mushtaq Ahmad P. W. 13 for the motive, Muhammad Zaman P. W. 14 and Noor Muhammad P. W. 15 for the recoveries of blood-stained dangs P. 4 and P. 5 at the instance of Haider son of Salehon (acquitted accused) and Haider (appellant) respectively. Each of these witnesses of these three sets have duly supported the prosecution case as narrated above, and in addition, we have the evidence of the medical witness, which leave no room for doubt that the death of Suba (deceased) had resulted from violence.
10. We have been taken through the evidence by the learned counsel for the parties and find that all these witness--ses are closely related to Suba (deceased). Ata Muhammad Lambardar P. W. 2, has stated that his first cousin Muhammad Zaman P. W. 14 is the son-in4aw of one Sattar of village Shadiwal and Mst. Rajan, a resident of the same village is the mother of Suba (deceased) and Sardar P. W. 8 while Inayat P. W. 9 is their nephew and Nawab P. W. 10 as well as Bahawal P. W. 12 are their cousin. We also find from his evidence that there was party faction in the village and the appellants' party and the complainant-party were in opposite camps. He had deposed that aforesaid Muhammad Zaman P. W. 14 contested the last B. D. Elections against Amanullah Luk, an Advocate of their village and the com--plainant-party on account of their relationship had sided with Muhammad Zaman while all the accused had voted for Ch. Amanullah Luk, who was incidentally their defence counsel in this case. The evidence of this Lambardar had further reveal-- ed that most of these witnesses were not favourably disposed to some of the accused. He has stated that one Inayat son of Raja had promised the hand of his sister Mst. Naziran to Inayat P. W. 9, but the former went back on his promise and married this girl to Khan Muhammad, an uncle of Ghulam Ali (acquitted accused) in exchange for the marriage of Mst. Amina, a sister of aforesaid Ghulam Ali with himself. This at had naturally annoyed Inayat P. W. 9 and his father Bahawal P. W. 12 who out of this spite had made a written complaint to the Union Council that Mst. Naziran and Mst.
Amina had been married in their minority in violation of the provisions of Family Laws as has been admitted by Muhammad Zaman P. W. 14, the Nikah Registrar of their illaqa. There is another important circumstance which cautioned against blind-fold acceptance of their evidence.
Muhammad Zaman P. W. 14 had disclosed that sometime before this occurrence Mukhtar Ahmad S. 1. And Banaras Khan A. S. I. Formerly posted at their police station were involved in the murder of a rice smuggler. Ghulam (appellant) and Suba a brother of Haider son of Salehon the acquitted accused) were prosecu--tion witnesses against them and many respectables of the illaqa had been dissuading them from deposing against the to police officers but they did not succumb to their pressure and gave evidence against them in the course of an inquiry held by a local Magistrate.
11. In fact these peculiar features of the evidence had not escaped the notice of the learned trial Judge who, after the necessary scrutiny had come to the following conclusion :-
(I) That the eye-witnesses of the occurrence are inter--related.
(2) That the eye-witnesses of the occurrence were inimical towards Ghulam Ali, son of Baqri accused.
(3) That certain police officers were annoyed with Haider son of Salehon (acquitted accused) and Ghulam son of Hussain (appellant).
(4) That the complainant-party had voted for Muhammad Zaman P. W. Whereas the accused party had cast their votes in' favour of Amanulla Luk, Advocate, the rival candidate of Muhammad Zaman P. W. In the last B. D. Elections.
12. The learned trial Judge was also not satisfied with the evidence of recoveries of the to dangs P. 4 and P. 5 at the instance of Haider son of Salehon (acquitted accused) and Haider appellant, and observed that although the S. H. O. Had made recoveries of sotas the attesting witnesses of the recovery memos were asked to attest the relevant memos. At some later stage. On the basis of this analysis--the-learned trial Judge had concluded that there were obvious reasons for the, false implication of Ghulam Ali son of Baqri and Haider son of Salehon (acquitted accused) and giving them the benefit of these doubts he had acquitted them. He had, however, attached no importance to the fact that the to parties were in different camps in the last B. D. Election, and had regarded this choice of the candidates as a routine affair with no unpleasant repercussions on their relations and relying on the evidence of the three eye-witnesses Sardar P. W. 8, Inayat P. W. 9 and Nawab P. W. 10 coupled with the motive he convicted Ghulam and Haider appellants.
13. Learned counsel for the appellants has urged that the B. D. Elections had divided the village community in different parties everywhere and this village could be no ex--ception to the election party faction which had certainly strained the relations of the complainant with the accused- appellants and that the learned trial Judge was not correct in ignoring the partisan character of the prosecution witnesses. He further contended that credibility of the witnesses being indivisible he could not have accepted their evidence in respect of the to appellants after having rejected the same against to of their co-accused and referred us to Araz Khan v. The State (PLD 1965 Kar.. 119) and some other cases on that point; but we cannot endorse this contention of the learned counsel after the authoritative pronouncement of their Lordships in Tawaib Khan and others v. The State (PLD 1970 SC 13) that the maxim, falsus in uno falsus in omnibus, is no longer a rule of universal application and the Courts of this Country have to -sift the evidence led in each case to separate the grain from the chaff.
14. On a re-assessm ent of the prosecution evidence we, however, find that the alleged motive was a made-up affair. After having excluded from consideration the evidence of Sardar . P. W. 8, Nawab Khan P. W. 11 and Mushtaq P. W. 13 in respect of the motive: as hearsay and having given a definite finding that the challan form copy Exh. P. M. Was later fabricated by the aforesaid Forest Guard at the instance of the police to strengthen the evidence of motive the learned trial Judge should not have relied on tainted testimony of Bahawal P: W. 12 about it as he was .One of the witnesses of that faked document. , If this witness could lend his thumb to prepare a false document he could have certainly lent his tongue to support a made-up story about it, especially when he was found to be interested in deposing against Ghulam Ali son of Baqri (acquitted accused) on account of the above referred to matrimonial affair of his son Inayat P. W.
15. In finding that the alleged motive did exist learned trial Judge seems to have been carried away by the fact that the altercation between Suba (deceased) and Ghulam (appellant) about the cutting of this fallen kiker tree in the presence of Bahawal P. W was mentioned in the F. I. R., but having once dubbed the evidence of Sardar P. W. The author of this F. I. R., about this motive as hearsay, the mention of this incident in this F. I. R. Was of no -consequence. This affair of tree cutting by Ghulam (appellant) is even otherwise not free from doubt, as no such kiker tree was taken into pos--session during the investigation of the case although it was said to be lying with the village chaukidar on superdari. Its stump which had been left in the ground was not even got removed in token of the correctness of this part of the story. It was not even shown in the site-plan and the Patwari had admitted that no such tree or stump was pointed out to him by any witness.
The Sub-Inspector of Police who had investigated the case had not seen the fallen kiker tree but had only noticed its stump 'and conceded that he had not shown the stump either to the Patwari.
The failure of- the prosecution to prove these collateral factors in support of the alleged motive went a long way to negate the existence of any such motive for Ghulam or Haider appellants to assault Suba (deceased).
16, In fact the alleged motive rendered -the prosecution case improbable as Ghulam (appellant) was said t0 have arranged the alleged ambush in order to wreak vengeance on Suba (deceased) for beating him at that very place a few days earlier how could he be expected to content himself with a lalkara only although armed with a lathi like his co-accused while Suba (deceased) was at their mercy. He would have rather spearheaded this assault and himself opened the attack by a violent blow to appease his venom against Suba (deceased). We, therefore, hold that no such incident had taken place between Suba (deceased) and Ghulam (appellant). With ' this finding about the alleged motive the lalkara attributed to Ghulam (appellant) looses its sting as no element of abetment can be deduced from it and it is reduced to the proverbial lalkura or an embroidery in the case which the Courts have always ignored. His case even otherwise was on a better footing than that of Haider soar of Salehon (acquitted accused). The learned trial Judge had given to the latter benefit of one circumstance only that his younger brother Suba had deposed against the former police officers of their police station in the aforesaid magisterial inquiry and those police officers might have been shadowing the investigation of this case, while Ghulam appellant had been denied the benefit of the circumstan--ces although he had personally figured in that affair and defying the respectables of the illaqa had given evidence against those police officers in the same inquiry. Taking this view, of the matter we give the benefit of doubt to Ghulam (appellant) as well and setting aside his conviction acquit him of the charge levelled against him.
17. We are then left with the -case of Haider (appellant) which should offer no difficulty in view of the above-detailed infirmities of the prosecution case. The participation of three of the four assailants of Suba (deceased) has been found doubtful, the evidence of the recoveries of dangs P.
4 and P. 5 and that of the motive has been eliminated. We have thus the oral testimony of only three eye-witnesses, Sardar P. W. 8, Inayat P. W. 9, and Nawab P. W. 10 who are closely related to Suba (deceased) and inter se as well; Inayat P W, had a personal grouse against Ghulam Ali son of Baqri (acquitted accused) on account of the break up of his first engagement with Mst. Naziran while, Sardar and Nawab P. Ws. Are his uncle Sardar P. W. Has been disbelieved with respect to the alleged motive and had made material improvements in his statement at the trial about the eyewit--ness account of the occurrence. He had originally stated is the F. I. R. That on hearing the alarm he ran towards 'the road and within his sight on the exhortation of Ghulam (appellant)
Haider son of Salehon (acquitted accused) Haider son of Hussain (appellant) Ghulam Ali son of Baqri (acquitted accused) gave three lathi blows simultaneously on the head of Suba (deceased) which felled him on the ground and then both the Haider gave to lathi blows en his right arm. He made the same statement in the commitment Court bus at the trial Sardar P W introduced a definite sequence of the three lathi blows on the head of Suba (deceased). He had specifically attributed the first blow 'on the left side of his heed to Raider son of Salehon (acquitted accused), second blow on the same side to Haider son of Hussain (appellant) and the third blow on the right side or the head to Ghulam Ali son of Baqri (acquitted accused). He contradicted himself when confronted with the F. I.
R. And his statement in the commitment Court by claiming that he had given these details in those earlier statements. He had specifically men--tioned the dates of the earlier incidents in the F. I. R.
And the date of the fatal incident in commitment Court statement but he went back in the trial Court and denied to have given any such dates in any of these statements saying that he was illiterate. He had also introduced in his statement at the trial that the assailants had come out of a khatan and insisted that lie had also mentioned in the F. I. R. And in his statement in the commitment Court while it was not found mentioned in any of these statements. He had also exaggerated the alleged incident of the altercation between Suba (deceased) and Ghulam although he had not seen it.
18. Inayat P. W. 9 as stated above, was inimical towards Ghulam Ali son of Baqri (acquitted accused) who admittedly had a joint behk with the to appellants. He had also introduced the ambush and the khatan although he had men--tioned it in his earlier statements. This witness had told another lie which apparently indicated that he had not all seen the occurrence. He had stated before the commitment Magistrate that Suba had died instantaneously at the spot which was incorrect according to the medical report and then he disowned the statement at the trial.
19. Nawab P. W. 10 had attributed both the injuries of the right arm of Suba (deceased) to Haider son of Salehon (acquitted accused). In the commitment Court he had denied any knowledge about the clothes of the assailants of the deceased by saying that he could not say what sorts of clothes the accused were wearing and he did not remember if they were having langotas or not but he had the audacity to give the details of each wearing apparel of the individual assailants of the deceased. He had even given the colour and shades of each separate item of their clothing. He had stated that Haider son of Salehon was having a loin cloth, a banyan and a bohdhani on his head, Haider son of Hussain was also having a loin cloth, a banyan and a bohchani on his head, Ghulam accused was wearing a kurta, a loin cloth and a turban of Mulmul on his head, Ghulam Ali son of Baqri had a loin cloth and a kurta but was bare headed. The to kurtas were white but were in dirty condition and the loin cloth of Haider son of Salehon was Sawa and that of the other Haider was of Paghvi colour and that the loin cloth of Ghulam was also Sawa and that of Ghulam Ali was of red colour and that the to banyans were white. Alt this indicated that he had been duly briefed about the type and the colour of the clothes of the assailants of the deceased before he came to make a statement at the trial. With these impro--vements and embellishments in their statements and there being no other evidence to corroborate the testimony of these related-cum-inimical witnesses we cannot place any implicate reliance on them especially when it has not been considered safe to rely on their testimony in respect of the three of the four assailants in the case.
We have, therefore, no option but to give the benefit of these doubts to Haider (appellant) as well and setting aside the order of his conviction acquit him of the charge levelled against him.
20. The upshot of the above discussion is that the appeal is accepted and both the appellants are acquitted. They should be released from custody forthwith provided they are not required in any other case.
21. The sentence of death is not confirmed. The reference is answered accordingly.