ASLAM RIAZ HUSSAIN, J.--Nawab aged 46 years, Ali Ahmad aged 31 years, Noor Ahmad aged 33 years, and Rashid Ahmad aged 29 years, were tried by Sheikh Abdul Waheed, Additional Sessions Judge (1), Sahiwal, for an offence under section 302/34, P. P. C. For the murder of Khurshid Ahmad deceased, in further--ance of their common intention, on the night between 13th and 14th July 1968, when he was sleeping in the compound of his house in Chak No. 31 S. P., Tehsil Pakpattan, District Sahiwal. The learned trial Judge vide his order dated 19th April 1969, found all of them guilty of the above-noted offence. He sentenced Nawab and Ali Ahmad to death and Noor Ahmad and Rashid Ahmad to transportation for life. All the four appellants have filed a joint appeal against their conviction and sentence. The case has also been referred to us for confirmation of the death sentence awarded to Nawab and Ali Ahmad appellants. This order shall dispose of the criminal appeal as well as the murder reference.
2. The prosecution story, briefly stated is as follows: Wali Muhammad (P. W. 7) and his elder brother Khurshid Ahmad deceased used to reside together.
Their maternal uncle Muhammad Sadiq had no male issue. He had only one daughter named Mst.
Bashiran whom he had engaged to Wali Muhammad P. W. In childhood. He, therefore, took Wali Muhammad P. W. To his own house, as a palak, saying that he would bring him up and then marry him to Mst. Bashiran. When Mst. Bashiran attained marriageable age, the appellants, who were the brothers---in-law of Muhammad Sadiq, wanted her to be married to Muhammad Hussain, son of Nawab appellant, but Muhammad Sadiq did not agree to this proposal. Mst. Sharman, the mother of Mst. Bashiran, however, insisted that- she would give her daughter in marriage to the son of her brother Nawab appellant.
The relations between Muhammad Sadiq and his wife became strained over this issue, and Mst.
Sharman turned out Wali Muhammad P. W. From her house. The latter then came to reside with his brother Khurshid Ahmad deceased at Chak No. 31 S. P., Tehsil Pakpattan, District Sahiwal. After some the, when Mst. Bashiran (P. W. 8) came to know that she was to be married to Muhammad Hussain, she went over to Wali Muhammad P. W. Of her own free will. Wali Muhammad and Khurshid Ahmad deceased took her to Chunian, where her statement was got recorded in the Court of a Magistrate.
She then got married to Wali Muhammad P. W. Whereafter all three of them shifted to Mauza Makhna Trida. Her father Muhammad Sadiq, however, got a case under section 363, P. P. C.
Registered against Wali Muhammad P. W. Khurshid Ahmad deceased and some others, and they were arrested by the police with the help of the four appel--lants. Mst. Bashiran was recovered and handed over to her father Muhammad Sadiq. Wali Muhammad P. W. And Khurshid Ahmad were challaned and prosecuted. The appellants appeared as prosecution witnesses against them, but they were acquitted by the Court. Rashid Ahmad appellant also got a case under the Arms Ordinance registered against the deceased in 1967, but he (i. e. The deceased) was acquitted in that case also. About 4/5 months before the occurrence, Mst. Bashiran P. W. Again left her parents; went over to Wali Muhammad and started living with him. Khurshid Ahmad deceased used to help Wali Muhammad P. W. an4 protected him in this connection. The appellants therefore, had a grouse against him and felt that they would never be able to recover Mst. Bashiran in the presence of Khurshid be deceased. This provided the motive for the offence.
3. On the night between 13th and 14th July 1968, Khurshid Ahmad deceased, Wali Muhammad, Mst.
Bashiran P. Ws. And one Hayat son of Mehanga were sleeping in the courtyard of the house of the former, when some the after mid-night, all the four appellants entered the courtyard. Nawab appellant was armed with a hatchet and Ali Ahmad appellant with a toka, while Noor Ahmad and Rashid Ahmad appellants were empty handed. Noor Ahmad appellant caught the legs of Khurshid Ahmad deceased and Rashid Ahmad appellant caught hold of his arms, while Nawab and Ali Ahmad appellants inflicted blows on his face and neck with their respective weapons. The inmates of the house woke up on hearing a shriek of the deceased and witnessed the occurrence in the moon light. None present could however, help the deceased as the assailants, who were armed with deadly weapons, threatened them with dire consequences. After fulfilling their mission, the appellants ran away with their respective weapons. On hearing the alarm raised by the 'P. Ws.
Muhammad Sarwar P. W., Imam Ali Chaukidar and some other persons reached the spot. Wali Muhammad P. W. Narrated .The incident to them. Thereafter, Wali Muhammad P. W. Left for police station Malka Hans, where he lodged the first information. Report, Exh. P. D. At 5-30 a.m., which was recorded by Muhammad Aslam Sub-Inspector (P. W. 10). As Khurshid Ahmad was still alive, a report under section 307, P. P. C. Was recorded in the first instance.
On reaching' the spot, the Sub-Inspector prepared the injury statement of Khurshid Ahmad and sent him to Civil Hospital; Pakpattan, for medical treatment. Blood-stained earth from the spot was taken into possession by him vide memo. Exh. P. A. He also took into possession the cot Exh. P. 1, on which the deceased was sleeping at the the of the attack. Khurshid Ahmad deceased expired at 10-00 a.m. In the hospital. On receiving this informa--tion, vide ruqa Exh. P. L. The investigating officer reached the hospital, prepared the inquest report of the deceased and despat--ched the dead-body to the mortuary for post-mortem examination. No weapon used in the commission of offence was recovered.
4. The autopsy was conducted by Doctor Farooq Ahmad P. W. 1 at 5-00 p.m., who found the following injuries on his person:
1. An incised would 3--" x 1-- mandible bone completely cut over the right cheek. The wound was transversely present. It was in the line of mouth.
2. An incised wound 1--" x -- x skin deep below the right side of the chin.
3. An incised wound 3" x 1--" x 1--" over the front of the neck below the thyroid cartilage. The trachea, esophagus, muscles of the deck were completely cut.
4. An incised wound 1" x 1/8" x 1/4" over the left side of the neck 3/4' below injury No. 1.
5. An incised wound 2-- x 1--" over the right side of the front of the neck. Underneath carotid arteries and other vessels were completely cut. The trachea and esophagus was cut completely.
In the opinion of the doctor, death was due to shock and haemor--rhage on account, of the above noted injuries. Injuries Nos. 3 and 5 were found to be sufficient to cause death in the ordinary course of nature individually. Injury No. 1 was found to be grievous. The the that elapsed between the death and injuries was about eight to ten hours. The stomach was found to contain four ounces of semi-digested food. All the injuries were caused by sharp-edged weapons. According to the doctor, all of them could not be inflicted with one weapon.
5. The appellants, when examined under section 342, Cr. P. C. Denied their guilt and pleaded innocence. They stated that they have been falsely involved due to enmity and suspicion. They further stated that Mst. Bashiran was a girl of loose character and they had never asked for her hand for Muhammad Hussain. They admitted that a case under section 363, P. P. C. Had been registered against Wali Muhammad P. W. And Khurshid Ahmad deceased, but said that the complainant in that case was Mohammad Sadiq and not the appellants. They also denied having appeared as prosecution witnesses in that case. They, however, admitted that Rashid Ahmad appellant had got a case registered against Khurshid Ahmad deceased under the Arms Ordinance. No evidence was produced in defence.
During the cross-examination, a suggestion was made to both the eye-witnesses, that in fact Wali Muhammad P. W. Had himself murdered his elder brother on account of a suspicion that he (the deceased) had developed illicit relations with Mst. Bashiran P. W.
6. In support of its case, the prosecution relied on:
(i) the ocular evidence of Wali Muhammad P. W. 7 and his wife Mst. Bashiran P. W. 8 ;
(ii) the evidence of motive; and (i.e) the medical evidence.
7. Wali Muhammad (P. W. 7) and Mst. Bashiran (P. W. 8) have been produced as eye-witnesses in support of the prosecution case. Hayat, the brother-in-law of Wali Muhammad P. W. Who is also said to have been sleeping in the courtyard of the house of the deceased on the night of the occurrence, was given up as unnecessary and was, therefore, not produced.
Learned counsel for the appellants attacked the impartiality of these to witnesses on the ground that Wali Muhammad P. W. Is the real brother of the deceased while Mst. Bashiran P. W. Is the wife of Wali Muhammad P. W., and though a close relative of the appellants, (who are her maternal uncles) she had thrown her lot with Wali Muhammad P. W. She eloped with him in 1964. When Wali Muhammad and Khurshid Ahmad deceased were prosecuted under section 363, P. P. C., she was produced as a prosecution witness, but at the trial she deposed in their favour, as a result of which both of them were acquitted. After some the she again left her parents and went over to Wali Muhammad P. W., against the wishes of her family. It can, therefore, be safely presumed that her sympathies lay on the complainant side.
8. The learned defence counsel urged further that there is an old enmity between the parties. It is in evidence that Wali Muhammad P. W. And his brother Khurshid Ahmad deceased were prosecuted for the abduction of Mst. Bashiran. The appellants helped the police in their arrest and the recovery of Mst. Bashiran and appeared as prosecution witnesses in that case against Wali Muhammad and the deceased. It is also an admitted fact that on 8th April 1967, Rashid Ahmad appellant had lodged a report against Khurshid Ahmad deceased for keeping an unlicensed pistol. That report is printed as Exh. P. J. At page 19 of the paper-book. It is recorded therein that Rashid Ahmad appellant had also beaten Khurshid Ahmad deceased with lathies before handing him over to the police.
9. Old enmity between the parties is, therefore, established and, as already observed, Mst. Bashiran (P. W. 8) has demonstrated by her conduct that she had completely identified herself with the complainant. In view of these circumstances, both Wali Muhammad and Mst. Bashiran P. Ws. Can be described as interested witnesses. As a measure of precaution, therefore, their evidence should not be accepted without independent corrobora--tion.
10. The contention of the defence counsel was that in fact, the to eye-witnesses did not identify the assailants and have involved the appellants merely due to suspicion. He supported his contention firstly, by emphasising the delay in lodging of the first information report: According to him, the occurrence took place between 10 and 11 p.m. On the night between 13th and 14th July 1968, and not at 2 or 3 a.m. As stated by the prosecution witnesses. His argument in support .Of this contention was that the deceased had admittedly taken his last meal at sunset the, which on that day was at 7-11-p.m. During the course of post--mortem, four ounces of semi-digested food was found in his stomach. According to the doctor Farooq Ahmad, who performed the autopsy, the deceased had taken his last meal about three or four hours prior to his death. It may be noticed that the deceased did not die immediately, but survived till 10-00 a.m. Next morning. Some food must have got digested during this period also, although according to the books on Medical Jurisprudence, the process of digestion is considerably impaired in the state of profound shock or coma. In other words, at the the of the infliction of injuries, the deceased had probably a greater quantity of food in his stomach than 4 ounces. The estimate that the deceased had taken, his last meal three to four hours before the infliction of injuries therefore, appears to be correct. This would place the the of occurrence between 10 and 11 .p.m. The first information report was made at 5-30 a.m. At police station Malka Hans, which was only at a distance of four miles. Thus there is a delay of about five hours (assuming that 1-- hours was taken in going to the police station), which has not been properly explained by the prosecution. Apart from this, there are indications on the record that. The first information report was, in fact, recorded by Muhammad Aslam S. 1. (P. W. 10) on the spot and not at the police station. Mst. Bashiran has stated during her cross-examination that the Investi-- gating Officer recorded their statements after coming to the place of occurrence. She has deposed as follows at page 31 line 49 of the paper-book.
"In my presence, my statement and that of my husband Wali Muhammad was recorded. My husband is illiterate. The S. I. Got my thumb-impression and that of Wali Muhammad. P. W. On our statements."
The learned defence counsel, therefore, argued and with some justification, that the first information report was recorded by the police at the spot. According to him, the real reason for the delay in lodging the F. I. R. Was that the eye-witnesses had not identified the assailants and that it was only after considerable deliberations that Wali Muhammad P. W. Decided to name the four appellants on account of enmity and a story was evolved giving details of the parts played by each of the appellants.
11. The crucial point in the present case, in fact, is whether or not, Wali Muhammad and Mst.
Bashiran, P. Ws. Were able to identify the assailants. No doubt Wali Muhammad P. W. Is the real brother of the deceased and has a grouse against the appellants and Mst. Bashiran (as already noted above), is inclined towards the complainant party, yet they are both natural witnesses. The occurrence took place in the house of the deceased, with whom both the above noted witnesses were residing. They are therefore, bound to have been present at the the of the occur--rence. Both of them knew the appellants previously and would definitely have been in a position to recognise and identify them, if there was any moon light at the the of the occurrence as alleged by the prosecution. This gives rise to the question whether or not there was any moonlight at the the of the occur--rence. According to the calendar it was 16th of the lunar month and the moon was in its fourth quarter on the night of the occurrence. The moon had risen at 21-47 hours (i.e. 9-47 p.m.) and had set at 8-19 a.m. Next morning. In other words, the moon was present in the sky throughout the night. It is also in evidence that it rained during that night. The question as to when the rain started and what was its extent also has an important bearing on the case because if it had started raining early in the night, it can legitimately presumed that the sky was over-cast; the moon could not be visible and the night must, therefore, have been a dark one. Wali Muhammad P.
W. Has stated that it started raining at about the morning Azan the and that it only drizzled. ,Muhammad Aslam Sub-Inspector (P. W. 10) has stated that it started raining at about 4 or 4-30 a.m. And that it was a medium rain, while Mst. Bashiran (P., W. 8) has stated that the rain started when Wali Muhammad P. W. Had left for the police station and that it rained heavily so much as that the rain water was flowing from their courtyard- towards the lane. According to the learned defence counsel, even if it be presumed that the rain had started at 4-30 a.m., it must have been cloudy throughout the night. The learned counsel for the State on the other hand, argued that during the monsoon, it could start raining suddenly and it need not have been cloudy throughout the night. The problem has, however, been resolved by Anwar Ali, Foot Constable (P. W. 4), who after wavering a bit, stated that the rain had, in fact, started at about 6-00 p.m. On 13th July 1968, i.e. On the evening preceding the night of occurrence. He could not say when the rain stopped, but stated that it rained heavily. If this was so, the night would certainly have been a cloudy one and, there could .Be no moon light. It was, therefore, trot possible for the witnesses either to see the occurrence or to identify the assailants, specially in view of the short period in which the five injuries found on the person of the deceased must have been inflicted by to persons. It could be argued that if it had rained during the night, the P. Ws. Could not have slept in the courtyard as stated by them. We, however, feel that they have stated so, probably, in order to be able to say that they could identify the assailants in the moon light. They have, in fact, gone to the extent of saying that the cot on which the deceased was lying was not removed from the courtyard even after it started raining ;that they had covered the dead body by placing a quilt over it and that the cot was lying in the courtyard even when the Investigating Officer arrived at the spot. Muhammad Aslam, the Investigating Officer has however started stated categorically that when be reached the spot, the deceased was lying injured on the cot inside he khota and that was not lying in the courtyard with a quilt over him.
11. There are also some other indications do the record to show that the witnesses had not been able to see the occurrence.
Of course, as already discussed, the first information report was lodged after a -delay--of about five hours during which, most probably, a story had been evolved, assigning specific part to each of the appellants, according to which Rashid Ahmed appel--lant had caught hold of the arms of the deceased while standing on the head-side of the cot of the deceased and Noun Ahmad appellant caught hold of his legs. Ali Ahmad appellant, armed with a toka was standing on the right side of the deceased while Nawab appellant, armed with a hatchet, was alleged to be standing on his left. A strong indication, that this story was fabricated subsequently, is to be found in the following statement of Muhammad Sarwar (P. W. 6), who is stated to have come to the spot on hearing the alarm raised by Wali Muhammad and Mst. Bashiran P. Ws. :- "Nobody told me as to which part was played by whom in the commission of the offence, i.e. Who caught Khurshid from his legs, who from his arms and who gave hatchet and toka blows. In fact, nobody told me that one of the accused caught Khurshid from his legs, some one caught him from his arms and the others caused him injuries by hatchet or toka blows."
It is also interesting to note that before the Committing Magist--rate, Wali Muhammad P. W. Stated that Nawab and Ali Ahmad appellants were standing together on the same side, i.e. The south of the cot of the deceased. This is materially different from the version given in the first information report and at the trial. This is not a minor discrepancy. Had Wali Muhammad P. W., in fact, witnessed the occurrence, he could not have made this mistake. Another indication of the fact that the above noted story was evolved subsequently, is that Muhammad Aslam Sub-- Inspector (P. W.
10) who has stated that on receiving the informa--tion about Khurshid's death in the hospital at 12- 30 a.m., he went there and, amongst other things, prepared the Inquest Report Exh. P. F. He has admitted during the cross-examination that column No. 12 of the Inquest Report is meant for entering the weapons used in the commission of the offence. A look at this report, however, shows that he has only written the words "Ala tez dahar" in the relevant column although, according to the first information report, which had admittedly been recorded much earlier at 5-30 a.m., toka and hatchet had been used in the commission of the offence. This shows that at the the of preparation of the Inquest Report (after the death of the deceased at 10 a.m. Next morning) the story that toka and hatchet were, used in the murder had not yet been evolved.
There is also an inherent improbability in the account of the incident given by the eye-witnesses. If the appellants had come all the way to kill Khurshid Ahmad deceased and to of them, namely, Nawab and Ali Ahmad were armed with a hatchet and a toka respectively, where was the necessity for Rashid Ahmad and Noor Ahmad appellants to hold the arms and the legs of the deceased. The blows that were given on the neck of the deceased could have been inflicted straightaway, without going through this elaborate exercise. In fact, the manner in which Rashid Ahmad appellant is stated to have held the arms of the deceased could only have resulted in injuries being caused to him, i.e. Rashid Ahmad, because according to Mst. Bashiran P. W. The arms of the deceased were stretched along with his body, towards the legs; Rashid Ahmad appellant could, therefore, hold his arms from head-side of the cot, only by bending over the deceased. In that case, the toka and hatchet blows aimed at the neck of the deceased would have certainly fallen over Rashid Ahmad appel--lant. The account of the incident given by the witnesses is, therefore, obviously false.
12. The motive has been proved through Wali Muhammad and Mst. Bashiran P. Ws. But motive is a double edged weapon. As urged by the learned defence counsel, Wali Muhammad P. W. Has named the appellants due to suspicion thinking that as they had a motive to kill Khurshid, they must be the assailants.
13. As regards the medical evidence, it cannot provide any corroboration if it is found that the eye- witnesses did not identify the assailants.
14. We are .Of the view that the prosecution case is not free from doubt. The eye-witnesses could not have identified the assailants in the absence of moon light and the four appellant's were most probably named due to suspicion against them. We, therefore, give the appellants benefit of doubt and accept their appeal. The order of the learned trial Court is set aside and all the four appellants are acquitted.
15. This also disposes of the murder reference.