Talib Hussain (33) son of Allah Ditta, Lai Mahmud (48) son of Muhammad Khan, Manzur (31) son of Ali Muhammad and Muhammad Bakhsh (63) son of Ramzan, caste Kablani, residents of Hamunwala. Police Station Fazilpur, District D. G. Khan, were tried by the learned Additional Sessions Judge, D. G. Khan, under section 302/34, P. P. C., on the allegations that on 7th May, 1975, at about 8 a. m., in furtherance of their common intention, they committed the murders of Wahid Bakhsh deceased and his wife Mst. Mithan, 'in the area of village Fazilpur. By judgment dated 22nd April, 1977, all of them were convicted on the said charge and sentenced to imprisonment for life and a fine of Rs. 500 each for each murder and in default of payment of fine to undergo R.I. For one year each with the direction that both the sentences shall run concurrently. They were further ordered to pay Rs. 2,000 each to the legal heirs of each deceased as compensation or in default in the payment thereof to suffer R. I for six months each.
2-9. [Factual narration and medical evidence omitted].
10. The learned counsel for the appellants contended that medical evidence indicates that occurrence had taken place in the dark hours of night and not at 8 a. m., as alleged by the prosecution. He further submitted that the F. I. R. Was recorded at the spot after the preliminary investigation and the alleged eye-witnesses were imported at a belated stage. He further argued that the reason given by the prosecution for the presence of the complainant and the deceased persons at the spot is completely falsified by the defence evidence. He also assailed the evidence relating to motive and recoveries and contended that the appel--lants have been implicated merely on suspicion, therefore, their convic--tion is unsustainable.
11. According to the prosecution, the occurrence took place on 7th May, 1975 at 8 a. m. The post- mortem examinations on the dead bodies of Mst. Mithan and Wahid Bakhsh deceased were conducted at 4-30 p. m. And 6 p., m. Respectively. The doctor stated that rigor mortis usually starts after six hours and in case of both the deceased persons it was present only is the legs. According to him, it was starting on both the dead bodies at the time of post-mortem examination. The learned counsel for the appellants contended that the above statement of the doctor was not correct and in fact rigor mortis was disappearing at the time of post-mortem examinations because in this part of the coun--try rigor mortis starts one to two hours after death in summer and its usual duration is 18 to 36 hours, therefore, in all probability the occurrence had taken place at least 18 hours before the post-mortem examinations during the dark hours of the right. In support of this contention he referred to Modi---s Medical Jurisprudence and Toxicology (21st Edition) wherein at page 121, it is stated that in Northern India the usual duration of rigor mortis is 18 to 36 hours in summer and generally it commences 1 or 2 hours after death, is well developed from head to foot in about twelve hours, is maintained for about twelve hours and passes off in about twelve hours. The learned author further says that it first occurs in the muscles of the eyelids, next in muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extrimities, lastly it extends downwards to the muscles of the abdomen and lower extrimities and then passes off in the same sequence. In the circumstances, the contention of the learned counsel for the appellants that in fact rigor mortis had disappeared from the upper extrimities and was about to completely fade away at the time of post--mortem examinations, has sufficient force and the statement of the doctor that it was starting at the time of post-mortem examinations (8-- to 10 hours after deaths) cannot be accepted. The probability thus goes in favour of the view that deaths of both the deceased might have occurred much before 8 a. m.
During dark hours of night, and this view finds further support from the statement of the Patwari that he was asked by the Police before sunrise to prepare the site plans.
12. The prosecution version of the occurrence is supported by Allah Bakhsh (P. W. 1) and Bakhsha (P.
W. 3). Another eye-witness of the occurrence, namely, Shafi Muhammad did not support the prosecution version at the trial and was cross-examined by the learned Additional Public Prosecutor with the permission of the Court: The learned coun--sel for the appellants contended that Allah Bakhsh P. W. Had tried to suppress some material facts including his relationship with Wahid Bakhsh deceased and Bakhsha P. W. Is purely a chance witness of the occurrence, therefore, their evidence was not sufficient to warrant the conviction. Allah Bakhsh P. W. Stated that he was not related to Wahid Bakhsh deceased. He, however, admitted that one Budha was the uncle of Wahid Bakhsh deceased but denied the suggestion that his sister Mst. Sabal Mai was -married to aforesaid Budha. Faiz Bakhsh (P. W. 7), brother of Wahid Bakhsh deceased, admitted that Mst. Sabal Mai was the wife of his uncle Budha and daughter of Nabi Bakhsh but added that Nabi Bakhsh father of Allah Bakhsh P. W. Was not the same person who was the father of Mst. Sabal Mai. He further stated that he did not know any other son or daughter of Nabi Bakhsh father of Mst. Sabal Mai. Relying on these statements the learned trial Judge rightly observed that Allah Bakhsh complainant and Faiz Bakhsh P. W. Had tried to conceal the relationship of the former with Wahid Bakhsh deceased. It is unbelievable that Faiz Bakhsh P. W. Had no knowledge about the other daughters and sons of Nabi Bakhsh, father of Mst. Sabal Mai and he seems to have made this statement to conceal the relationship of the complainant with Wahid Bakhsh deceased.
13. In cross-examination Allah Bakhsh complainant admitted that two real brothers of Wahid Bakhsh deceased were murdered at different times and the persons challaned for their murders were acquitted by the Courts. He expressed ignorance if his own son Nazar Muhammad was a complainant in any of those cases. Here again he seems to have made an attempt' to conceal his connection with Wahid Bakhsh deceased by giving an evasive reply.
14. Allah Bakhsh complainant stated that Wahid Bakhsh deceased was never challaned or convicted in any criminal case. 1t was put to him that from the year 1951 to 1964 he was convicted in several cases and sentenced to different terms of imprisonment but he denied all such suggestions as incorrect. The defence has produced as many as twelve conviction-slips showing that he was convicted in a number of cases. The Investigating Officer admitted that he was a bad character, history---sheeter and was convicted by the Courts in several cases. The com--plainant thus seems to have tried to suppress the truth with a view to meet the arguments of the defence that Wahid Bakhsh deceased being a bad character, had many enemies and might have been killed by some one else.
15. In the F. I. R. Allah Bakhsh complainant stated that he and both the deceased persons were returning to their houses after seein--g their relatives at Kotla Isan. At the trial he came up with the version that they were going back to their houses after attending the `Qul cere--mony' of Noor Muhammad, son of Khuda Bakhsh, Lashari by caste, which took place a day before the occurrence at Chah Dubwala. He admitted that there was no other person by the name of Nur Muhammad son of Khuda Bakhsh at Chah Dubwala and denied the suggestion that aforesaid Nur Muhammad was alive. Bakhsha P. W. On the other hand, admitted that one Nur Muhammad, son of Khuda Bakhsh, Wasuvana by caste, of Chah Dubwala was alive and no other person by that name and parentage was residing at the said Chah. Faiz Bakhsh (P. W. 7), brother of Wahid Bakhsh deceased, denied the suggestion that Nur Muhammad, son of Khuda Bakhsh was his maternal-nephew but admitted that he was related to him. He further stated : "Noor Muhammad son of Khuda Bakhsh had 3/4 brothers. Gul Muhammad deceased and Mureed Bakush are brothers of said Noor Muhammad.
The said Noor Muhammad resides in Chah Dubwala Mauza Kotla Isan. My brother deceased Wahid Bakhsh had gone to attend the Quls of one Noor Muhammad Lashari and not the above-named Noor Muhammad, son of Khuda Bakhsh who is by caste Wasuvana. Both the persons by name Noor Muhammad resided near to each other at Chah Dubwala. I had also gone ' to Chah Dubwala. The deceased Noor Muhammad Lashari has also 3/4 brothers but 1 do not know their names. I do not know the name of father of deceased Noor Muhammad Lashari. I do not know the name of any relation of deceased Noor Muhammad Lashari. It is incorrect that Noor Muhammad which we allege to have died is alive and I have wrongly described two persons by name Noor Muhammad.
The appellants examined Muhammad Ramzan, Chowkidar of village Kotla Isan as D W.
4. He appeared with the register of deaths of Kotla Isan and stated that there was no entry in the register relating to the death of any person Nur Muhammad by name during the year 1974 or 1975. Nur Muhammad, son of Khuda Bakhsh, caste Wasuvana appeared as D. W. 6 and stated that one Nur Muhammad, son of Khuda Bakhsh caste Lashari used to come to his Chah known as Aliwala at the time of harvesting of crop and that he had died. He further stated that aforesaid Nur Muhammad was not a permanent resident of that area. The witness was declared hostile and was cross- examined by the learned defence counsel. In cross-examination he admitted that he had come to the Court on the request of the complainant party as they told him that his evidence was required.
After discussing the evidence on this point, the learned trial Judge observed that: "There is no evidence to show that Lashari and Wasuvana is a same caste or Wasuvana is sub- caste of Lasharis. The cross--examination of prosecution witnesses shows that the deceased Noor Muhammad was Lashari by caste and the Noor Muhammad who is stated to be alive is Wasuvana by caste and said Noor Muhammad as defence witness has clearly stated that he is not Lashari and the entry in the Khasra Girdawari Exh. D. N. Is of no avail to the accused because the entries can be recorded by influencing a Patwari and the mere fact that in Khasra Girdawari Exh. D. N. D. W.
Noor Muhammad is shown as Wasuvana almnroof Lashari does not mean that he is Lashari when he himself is denying this fact."
I am constrained to say the learned trial Judge has unnecessarily given too much importance to the statement of Nur Muhammad P. W. 6 and tried to stretch the evidence in favour of the prosecution. Accord--ing to Faiz Bakhsh (P. W. 7), brother of Wahid Bakhsh deceased, Nur Muhammad (D. W. 6) is related to them. Allah Bakhsh complainant and Bakhsha P. W. Categorically stated that besides Nur Muhammad, son of Khuda Batchsh, caste Lashari, no other person by that name and parent--age was residing at Chah Dubwala. In Khasra Girdawari Exh. D. N. Nur Muhammad, son of Khuda Bakhsh is mentioned as Wasuvana almaroof Lashari by caste. There is no evidence on the record to show that at the entries in the khasra girdawari were manoeuvred by influencing the patwari and the finding of the trial Judge to that effect is wholly conjectural.
16. The evidence on the record shows that in order to cover one false statement of Allah. Bakhsh complainant that he and the deceased persons were returning home after attending the Qul ceremony of Nur Muhammad son of Khuda Bakhsh, the prosecution had to indulgb in a large number of falsities to show that aforesaid Nur Muhammad son of Khuda Bakhsh was a different person than Nur Muhammad D. W. 6 Nur MuhAmmad (D. W. 6) stated that Nur Muhammad Lashari died at Chah Aliwala at about 9 a.m. When his brothers were with him. His dead body was taken away on the same day to the western side of Tehsil Rajanpur and after that his brothers did not return to his Chah. If that was the position then question of any Qul ceremony at Chah Dubwala could not, arise and there was absolutely no occasion f-or the complainant or the deceased persons to have gone to that Chah for attending the so-called Qul ceremony. Faiz Bakhsh P. W.
Brother of Wahid Bakhsh deceased stated that he had also gone to Chah Dubwala but he could not tell the names of the brothers, father or any other rela--tives of Nur Muhammad Lashari, who, according to the prosecution, had died at that Chah. There is nothing on the record to show that he had any relationship with the deceased persons or Allah Bakhsh com--plainant necessitating their participation in the alleged Qul ceremony. The reason given by Allah Bakhsh complainant for his own presence and that of the deceased persons at the spot is, thus, nothing but a pure fabrication.
In the circumstances, I am not inclined to place any reliance on his evidence.
17. The next eye-witness produced by the prosecution is Shafi Muhammad (P. W. 2) He did not support the prosecution at the trial and was cross-examined by the Additional Public Prosecutor with the permis--sion of the Court. To the cross-examination of the defence counsel he stated that he could not identify the accused as they had muffled their faces and their names were told to him by Allah Bakhsh complainant. The evidence of a hostile witness normally loses all its evidentiary value and it can neither be used in favour of the prosecution nor against it. The evidence of Shafi P.
W. 2 therefore does not advance the case of the prosecution.
18. The last eye-witness Bakhsha (P. W. 3) is a resident of Kotla Isan, situate at a distance of 13-14 miles from the spot. In cross-examination he stated that Kaura son of Sajju of Chah Jamal Wala had advanced him Rs. 300 to purchase a bullock for him but he could not find one and had gone to Chah Jamalwala to return the amount to Kaura. He claims to have seen the occurrence when he was on his way to Fazilpur after seeing Kaura at Chah Jamalwala. Appearing as D. W. 3 aforesaid Kaura stated that he had never advanced any money to Bakhsha P. W. For purchasing a bullock nor he had come to him on the day of occurrence or a day before. Bakhsha P. W. Is, thus, a chance witness and his presence at the spot is not established.
19. Ismail Patwari (P. W. 5) stated that during the days of occurrence the servants of Ikram Bodla used to reside in their house tube-well on the Northern side of the place of occurrence and tenants of Allan Drishik were residing at his well situate at a distance of 30-40 karams from the spot.
Bakhsha P. W. Stated that no person was attracted to the spot from the tube-well situate near the place of occurrence. If the occurrence had taken place at 8 a m., as alleged by the prosecution many persons residing in the vicinity must have been attracted to the spot but no such person was cited as an eye-witness in this case.
20. There is also substance in the contention that the F. I. R. Was recorded at a belated stage after the preliminary investigation. At the trial, Allah Bakhsh complainant could not tell the name of the father of Bakhsha P. W. And stated that prior to the occurrence Bakhsha P. W. Was not even known to him and he saw him for the first time at the time of occurrence. Bakhsha P. W. Stated that before going to the Police Station, Allah Bakhsh complainant did not ask him about his name or parentage. The name, parentage, caste and place of residence of Baaksha P. W. Is, however, clearly mentioned in the F. I. R. The question, therefore, arises how the name and other particulars of Bakhsha P. W. Could find mention in the F. I. R. When he was not even known to the complainant prior to the occurrence nor he had asked him about his particulars before going to the police station. One can find the answer in the statement of Bakhsha P. W.
3. He stated that the investigating officer asked him about his name, father's name and place of residence when he reached the spot for the investigation of the case. According to the prosecution, the F. I. R. Was lodged at 8-45 a.m. The statement of the Patwari shows that the Police was present at the spot at about sunrise time. These facts go a long way to show that the F. I. R. Was recorded at the spot after due deliberation and the alleged eye-witnesses were imported from distant places at a belated stage.
21. The evidence relating to the recoveries of blood-stained weapons and blood-stained clothes from the appellants also does not inspire confidence. According to the prosecution Haji Aziz (D W 1) pro--duced Talib Hussain and Manzur appellants before the Sub-Inspector on 10th May, 1975 and they produced blood-stained hatchet and blood--stained dang before him. It is further alleged that they were wearing blood-stained clothes which were removed from their persons by the Sub- --Inspector. On 16th May, 1975 Haji Aziz also produced Muhammad Bakhsh and Lai Mahmud appellants before the Sub-Inspector who produced blood-stained dang and blood-stained hatchet before him and all these articles were made into separate sealed parcels. These recoveries were witnessed by Allah Dad (P. W. 9) and Hazur Bakhsh (not produced). Allah Dad P. W.
Is a resident of village Gujranwala, situate at a distance of 3-4 miles from village Hamunwali, where the recoveries were allegedly effected. It is in evidence that a large number of persons of village Hamunwali were present at the time of recoveries but none of them was cited as a witness of these recoveries. The Sub-Inspector stated that he did not take the recovery witnesses from Hamunwali because the accused belonged to that village. He admitted that he did not record "this impression in the Police diary". Recoveries from Muhammad Bakhsh and Lai Mahmud appellants were effected six days after the recoveries from Talib Hussain and Manzur but strangely enough on both the occasions same persons who belonged to distant places were cited as recovery witnesses. Haji Aziz who, according to Sub-Inspector, is a respectable person appeared as D. W. 1 and stated that he had never produced any of the accused before the Police on 10th May, 1975 or 16th May, 1975.
Even otherwise it is difficult to believe that three days after occurrence Talib Hussain and Manzur appellants were going about with blood--stained clothes on their persons. In the circumstances, no reliance can be placed on the evidence relating to the recoveries.
22. The motive alleged by the prosecution is that 4-5 years prior to the occurrence Wabid Bakbsh deceased had abducted Mst. Mithan Mai deceased upon which her husband Khadim Hussain, brother of Talib Hussain appellant, divorced her and she contracted marriage with Wahid Bakhsh deceased over which the appellants who were closely related to Khadim Hussain and Mst. Mithan Mai, got annoyed Talib Hussain appellant admitted that Mst. Mithan Mai was the wife of his brother Khadim Hussain. He also admitted that Wahid Bakhsh had abducted her but added that she was never divorced by Khadim Hussain. Muhammad Bakhsh appellant admitted that Mst. Mithan Mai was his step-sister. The remaining appellants denied their relationship with Khadim Hussain and Mst. Mithan Mai. The incident of abduction of Mst. Mithan Mai by Wahid Bakhsh deceased took place 4-5 years prior to the occurrence. The most aggrieved person on that score was Khadim Hussain who is not an accused in this case. If the appellants had any grudge against the deceased persons due to abduction or re-marriage of Mst. Mithan Mai they would not have waited for such a long time to take the revenge. On the other hand, there is abundance of evidence on the record to show that Wahid Bakhsh deceased was a bad character and was con--victed in several cases. In the circumstances, possibility of the murders having been committed by some other enemy of Wahid Bakhsh deceased cannot be ruled out. The learned State counsel contended that except e the appellants no other person had any motive to kill Mst. Mithan Mai deceased. Talib Hussain appellant, brother of Khadim Hussain, and Muhammad Bakhsh appellant, step-brother of Mst.
Mithan Mai, may have a grievance against her because of abduction and re-marriage but this does not necessarily mean that they alone had the motive to commit her minder. The assailants, whosoever they were, might have killed her in order to destroy the evidence of the murder of Wahid Bakhsh deceased.
23. For all the foregoing reasons I feel inclined to the view that the prosecution has not been able to bring home the charge to any of the appellants and they are entitled to acquittal. Consequently, I allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They shall be set at liberty forthwith if not required to be detained in any other case.