1. M. R. KHAN, J.-Falak Sher, Hashim and Allah Ditta (res--pondents Nos. 1 to '3) were tried by the Sessions Judge, Multan, under section 302/34 of the Pakistan Penal Code for committing the murder of Ahmad Bakhsh. They were con--victed for the offence of murder. Of them, Falak Sher was sentenced to death, but Hashim and Allah Ditta were sentenced to transportation for life and were also fined Rs. 200, each and, in default, rigorous imprisonment for six months, each. On appeal and reference, the High Court of West Pakistan, Lahore, set aside their convictions and sentences and acquitted them.
2. The parents of Ahmad Bakhsh, deceased made a petition for special leave to appeal against the High Court's order acquitting the respondents Nos. 1 to 3. In view of some special features of the case, leave was granted to re-examine the evidence for safe dispensation of justice. After the grant of leave, the learned Advocate-General appeared on behalf of the State to support the present appeal.
3. The occurrence took place on the Ist of May 1965, at about peshiwela, in Chak No. 5/9-R, District Multan. A short-while, before the incident, Ahmad Bakhsh, deceased was threshing wheat in their threshing floor, and his father Nur Muhammad was clearing weeds from his nearby field. At that the, Allah Ditta (respondent No. 3) came there and took away Ahmad Bakhsh, deceased for smoking huqqa. They went towards the bhaini of Muhammad Nawaz. , Soon thereafter, Nur Muhammad followed them, thinking that they would otherwise waste the. Hardly had he covered a kanal or so, he heard cries coming from the bhaini of. Muhammad Nawaz. When he was at a distance of about one kanal from that bhaini, he saw Hashrm and Allah Ditta throwing the deceased on the ground with his face downwards. By that the, Mst. Bakhan and Dost Muhammad were also attracted by the cries. All of them saw Hashim and Allah Ditta holding the arms of the deceased and Falak Sher inflicting blows on his head with a toki. On seeing them, the culprits ran away. Ahmad Bakhsh expired on the spot.
4. Leaving Dost Muhammad near the dead body, Nur Muhammad proceeded towards the police- station. On the way, he met the Sub-Inspector of Police in Chak No. That a distance of about 3 miles and lodged the F .I, R , there at 7-00 p.m. The Sub-Inspector went to the spot and took N up the investigation. He sent the dead body of Ahmad Bakhsh to the mortuary for post-mortem examination. At night, the three respondents were produced before him. It was alleged M that Falak Sher produced one blood-stained told and that one blood-stained shirt and chadar were removed from the person of Allah Ditta. These were found on examination by the Serologist to be stained with human blood.
5. On post-mortem examination, three incised -wounds were found on the head of the dead body and three other incised wounds were found on the right hand which cut to fingers. The death, in the opinion of the doctor, was due to the injuries inflicted on the head.
6. The prosecution, case was sought to be supported by the ocular evidence of Nur Muhammad (P.
7. W. 9), Dost Muhammad (P. W. 10) and Mst. Bakhan (P. W. 11). And the recovery of the blood-stained toki from Falak Sher and the blood-stained shirt and chadar from Allah Ditta. The learned Sessions Judge discarded the evidence of Nur Muhammad altogether for which be gave convincing reasons. He, however, believed the evidence of P. Ws. Dost Muhammad and Mst. Bakhan. Relying on their evidence and the recovery of the blood-stained toki, shirt and chadar; the learned Sessions Judge found the three respon--dents guilty of the offence of murder.
8. The learned Judges of the High Court, however, disbelieved not only the evidence', of Nur Muhammad but also that of Dost Muhammad and-Mst. Bakhan. Moreover, the alleged recovery of the blood-stained toki, shirt and chadar, in the opinion of the learned- Judges, was highly improbable and unconvincing. Accordingly, the learned Judges set -aside the con--victions and sentences of the respondents.
9. The respondents Nos. 1 to 3 are inter-related. Falak Sher and Hashim are uterine brothers. Allah Ditta is the cousin of Falak Sher and Hashim. P.W. Nur Muhammad admitted that he had abducted Mst. Sato, the mother of Falak Sher and Hashim some 30 years ago. She was, however, returned to her husband Lal at the intervention of others. Nur Muham--mad further admitted that three or four years' after this abduction, there was' a fight between him, his father and brother on one side and the fathers of Falak Sher, Hashim and Allah Ditta on the other. In that fight, Lal, the father of Hashim was killed. For this offence, P. W. Nur Muhammad, his father and brother were convicted, and they suffered imprisonment for various terms. Thus, there was long-standing enmity between the complainant party and the respondents. The enmity between them was so much so bitter that they, according to the evidence of Dost Muhammad and Mst. Bakhan, were not on visiting terms. In view of this pre-existing enmity, it was highly unlikely on the part of Allah Ditta to go to the threshing floor of Ahmad Bakhsh, deceased to take him away for smoking huqqa. It was also highly unlikely on the part of Nur Muhammad, the father of the deceased, who was working in his nearby field, to allow his son to be taken away by Allah Ditta, an enemy on the pretext of smoking huqqa. This aspect of the matter was not at all taken into consideration by either of the Courts below. However, this streng--thens the opinion of both the trial Court and the High Court that Nur Muhammad had not seen the occurrence, although the learned Judges of the High Court may not be quite correct in their view that an alarm is not audible from a distance of 200 yards.
10. P. W. Dost Muhammad is a nephew of Nur Muhammad and P. W. Mst. Bakhan is the aunt of Nur Muhammad. Thus; both Dost Muhammad and Mst. Bakhan were highly interested prosecution witnesses. Their evidence should, therefore, be carefully scrutinised before it is accepted as true.
11. The learned Sessions Judge, however, accepted their evidence with--out any scrutiny. Dost Muhammad said that he heard cries of Ahmad Bakhsh, deceased from the bhaini of Muhammad Nawaz which is close to his bhaini and that while he was, at a distance of 2 kanals from the bhaini of Muhammad Nawaz he saw that Ahmad Bakhsh was lying on the ground with face downwards and Hashim and Allah Ditta were pressing him down. He further said that when he was at a distance of one kanal from Muhammad Nawaz's bhaini he saw Falak Sher hitting Ahmad Bakhsh with toki on the back of his head. Mst. Bakhan, in her turn, said that while she was at a distance of one kanal she saw Ahmad Bakhsh falling can the ground and that while he was being held by Hashim and Allah Ditta, Falak Sher gave 4 or 5 blows on his head with a toki. Amir (P. W. 8) admitted in cross-exami--nation that the bhaini of Muhammad Nawaz had a compound wall. NQ attempt was made on behalf of the prosecution to ascertain the height of the compound wall -by re- examination of P. W. Amir. However, the fact remains that the bhaini of Muhammad Nawaz had a compound wall. A question then arises whether it was possible for Dost Muhammad to see from a distance of 2 kanals and for Mst. Bakhan to see from a distance of one kanal how Ahmad Bakhsh deceased was felled on the ground and how he was held and by whom. In view of the existence of the compound wall, there arises a doubt if these to witnesses did, in fact, seethe occurrence as narrated by them. This doubt should go to the benefit of the respondents. The trial Court did not take notice of the existence of this compound wall, but this rightly weighed with the learned Judges' of the High Court.
12. According to the evidence of Dost Muhammad, Mst. Bakhan was ahead of him. It is significant that Mst. Bakhan deposed about the injuries inflicted on the head of the de--ceased with a toki, but did not say anything about the injuries found on the hand of the deceased. Dost Muhammad, of course, said that the deceased pulled his arm and placed it on his head when he was struck with a toki. This was how he tried to explain the injuries on the hand of the deceased, but his statement loses strength if it is examined in the light of the other evidence on record. Nur Muhammad stated that ' as he entered the bhaini of Muhammad Nawaz he saw Falak Sher injuring the hand of the deceased. Mst. Bakhan; however, said that as soon as Dost Muhammad and Nur Muhammad entered the compound, the respondents ran away, but she did not say anything if any injury had been inflicted on the hand of the deceased at that the. About the injuries on the deceased's band, the evidence of Dost Muhammad is that these injuries had been caused before all the injuries on the head were inflicted and that he had seen the infliction of all those injuries from a, distance of one kanal and not after entering into the compound. Thus, there are material contradic--tions with regard to the injuries on the hand of the deceased.
13. According to Mst. Bakhan, many cultivators were working in their fields at the the of the incident, but none of them appeared at the scene on her cries nor was any of them examined in this case.
14. Mst. Bakhan said that a short-while before the occurrence, Ahmad Bakhsh, deceased and Allah Ditta passed by her side. In answer to a question of the Court, she admitted that neither Nur Muhammad nor his family members used to visit the accused persons, nor the accused persons used to visit Nur Muhammad's house. In view of this strained relationship between the parties, it was hardly likely that Ahmad Bakhsh, deceased would be moving in the company of Allah Ditta.
15. Wali Dad (P. W. 7) and Amir (P. W. 8) who claimed to have witnessed the recovery of toki; shirt and chadar were not believed by the learned Judges. Both these witnesses, on their own ' admission, have been appearing as prosecution wit--nesses in challan cases. Moreover, the respondents, as admitted by P. W. Wali Dad, caused his annoyance over his getting a licence for Zuljinnah.
16. From what has been discussed above, it appears that there are materials on record to. Justify the order of acquittal and that at least some of the reasons given by the learned Judges are plausible. -That being so, the order of acquittal does not call for interference.
17. The appeal is, accordingly, dismissed.