' KHIZAR HAYAT, J.-All the eight appellants have filed this joint appeal (Cr. A. No, 727/80) challenging their convictions recorded by Additional Sessions Judge, Dera Ghazi Khan, vide his judgment, dated 25th June, 1980 whereby he sentenced all of them to 2 years' rigorous imprisonment and a fine of Rs, 500 each, in default whereof to undergo 6 months' rigorous imprisonment each under section 148, P. P. C. For rioting. Lal son of Meeru and Hamid son of Massoo have been sentenced to death and a fine of Rs, 4,000 each, in default whereof to undergo 3 years' rigorous imprisonment each ; and the remaining six, appellants to life imprisonment and a fine of Rs, 2,000 each, in default whereof to undergo 2 years' rigorous imprisonment each under section 302/149, P. P. C. For the murder of Umar son of Malik Musa aged 25 years. Besides this appeal learned Additional Sessions Judge has referred the case to this Court under section 374, Cr. P. C , for ,confirming the death sentence of Lal and Hamid. Also the complainant Mehr Ali has filed a revision (Cr. R. No, 754/80) praying that the sentence of those six appellants who have been awarded life imprisonment be enhanced to death. By this single judgment we propose to dispose of the criminal appeal, the murder reference as well as the criminal revision as they arise out of the same order.
2. The incident took place in the morning of 21st August, 1976 at Bund Walidadwala in the vicinity of village Meh Wah, Tehsil Jam pur, at a distance of about 5 miles from Police Station Harrand. Report in this case was made by Mehr Ali P. W. 5, brother of the deceased, about 3 days after the occurrence i,e,, on 24th August, 1976 at 12-45 p.m., to S.-I. Allah Nawaz P. W. 9 at Mud Machhiwala.
The Sub-Inspector recorded his statement Exh. P. A. And sent the same to Police Station Harrand for formal registration of the case whereupon H. C. Faiz Muhammad P. W. 3 drew up formal F. I. R. Exh. P.
A./I, the same day at 12-45 p.m.
3. On the fateful day at morning time Umar deceased went in the company of his maternal uncle Allah Dad P. W. 6 and maternal-cousin (Khalazad) Manzoor Hussain P. W. 7 to Bund Walidadwala for sowing Bajra. As soon as they arrived on the Bund all the appellants armed with sticks appeared there. Hamid appellant opened attack by giving first stick blow on the head of Umar. Lal appellant followed suit whose blow landed on the left side of his head. As a result thereof Umar fell down. During the infliction of these injuries the remaining six appellants held Allah Dad and Manzoor Hussain P. Ws , in order to prevent them from rescuing Umar. Thereafter the appellants disappeared with their weapons. Umar was removed to Civil Hospital, Rajanpur in an injured state where Dr. Ehsan Ahmad Qureshi P. W. 11 examined him at 1-30 p.m. The same day. As he was spitting blood, therefore, he was admitted as indoor patient for treatment. He died in the hospital at 12-30 p.m., on 23rd August, 1976 due to injury No, 1 as underneath it the scalp bones of the right parietal region had fractured. The doctor informed the police about the death of Umar through Rukka Exh. P. R. In response thereto S.-I. Muhammad Anwar P. W. 2 reached the hospital prepared inquest report and injury statement of the deceased. The dead body was post-mortem by the same doctor who observed two injuries on the person of the deceased and opined that the death had occurred due to the fracture of scalp bones of parietal region whereas the other injury on the left side of bead was found simple in nature. The motive was stated to be that about a millionth before the occurrence Qabool son of Allah Dad (maternal-cousin of the deceased) went to Bund Meh Wah where Lal appellant gave him beating with sticks saying as to why he had not brought his other men for work at the Bund. Some 10/12 days later, Umar deceased found Lal appellant roaming in Hajipur Bazaar, gave him stick blows and avenged the earlier beating to Qabool. Due to this grievance the appellants attacked and killed Umar on the fateful day.
4. At the trial prosecution examined as many as 12 witnesses and mainly relied on ocular evidence furnished by Allah Dad P. W. 6 and Manzoor Hussain P. W.
7.
5. In their statements under section 342, Cr. P. C., Kabir and Allah Bakhsh appellants stated that the complainant party was aggressor as they having armed with deadly weapons trespassed into their house in Meh Wah and injured them. Allah Bakhsh appellant stated that his one arm was broken in the incident and incapacitated for ever. Lal appellant also made a similar statement and claimed to have got a case registered against the complainant party on 23rd August, 1976.
6. S.-I. Allah Nawaz P. W. 9 investigated and challaned both the cross-cases. He conceded that on 23rd August, 1976 Lal appellant lodged a report under section 307/326/325/148/149, P. P. C. At Police Station Harrand against Umar deceased and 14 others including Allah Dad and Manzoor Hussain P.
Ws., alleging that they having armed with deadly weapons like guns, hatchets and sofas trespassed into his house, attacked and injured Kabir and Allah Bakhsh appellants as well as one Ghulam Sarwar. Report of this case was lodged with him by Mehr Ali brother of deceased when he was going for investigating Lars report.
7. It may be stated that Dr. Ehsan Ahmad Qureshi P. W. 11 admitted in cross-examination that he examined Kabir, Allah Bakhsh appellants and one Ghulam Sarwar on 23rd August, 1976. He found one incised wound 3" x 3/4" x fracture of radius of right forearm on the person of Allah Bakhsh ; three circular wounds on the feet of Ghulam Sarwar son of Malik Musa and one lacerated head injury, a contusion on the back and another contusion on the left parietal region, on the person of Kabir appellant. He also admitted that their injuries and those of Umar deceased were sustained at one and the same time.
8. The learned trial Judge believed the entire prosecution case and in result convicted and sentenced all the appellants as described in para. Graph 1 of this judgment.
9. With the assistance of the learned counsel for both the parties we have gone through the entire evidence on record and also heard their viewpoint at length.
10. Learned counsel appearing on behalf of the appellants argued that report in this case had been lodged with a delay of three days ; that the eye-witnesses being closely related to the deceased are not reliable ; that the complainant party was in fact the aggressor as they caused grievous as well as simple hurt to Allah Bakhsh and Kabir appellants and also to their relative Ghulam Sarwar and that it was Ghulam Sarwar alone who while acting in self-defence gave two stick blows to Umar deceased. He therefore, urged that the appellants committed no offence and deserve to be accfuitted.
11. As against this the learned counsel for the State assisted by the learned counsel for the complainant submitted that the prosecution story is more probable as compared to that of the defence version ; the prosecution has established that the occurrence took place at Bund Walidadwala wherefrom blood had been collected and the defence story that the complainant party had attacked the appellants by having trespassed into their house falls through for the added reason that Ghulam Sarwar who allegedly gave injuries to Umar deceased in the exercise of right of self-defence has not entered the witness-box to support this plea. Learned counsel for the complainant submitted that it is a fit case for enhancing the sentence of life convicts to death sentence in the circumstances of the case.
12. The broad features of the case are that during the occurrence only one person on the complainant side i,e,, Umar deceased was injured who suffered in all two injuries, both on the head.
Of them, one proved fatal which is attributed to Hamid appellant whereas the other attributed to Lal appellant is simple in nature. On the appellants' side, three persons are injured who suffered 7 injuries including 3 injuries of Ghulam Sarwar which are the result of fire-arm whereas the injury of Allah Bakhsh found on his hand is grievous in nature caused with a sharp-edged weapon. Both the parties claim to have dishonoured "elder man" of the other party and was attacked by that party in revenge. It is also admitted that both the parties were challaned and tried simultaneously. Each case has to be decided independently on the basis of legal evidence available on its record without being influenced by the evidence in the other case. In view of this principle we have to see whether the evidence on record of this case is sufficient and can be safely relied upon against the appellants for basing conviction on capital charge.
13. The main evidence in this case is that of the two eye-witnesses, namely, Allah Dad P. W. 6 and Manzoor Hussain P. W.
7. According to them, Umar deceased was in their company at the relevant time at Bund Walidadwala where they had gone for sowing Bajra. All the appellants armed with sticks came there to avenge the beating given to Lal appellant by Umar deceased about 10 days earlier. Lal and Hamid each caused one injury to Umar while the remaining appellants caught hold of them (Allah Dad and Manzoor Hussain P. Ws.) preventing them from rescuing Umar deceased. They did not cause even a scratch to the deceased or the P. Ws. It is not understandable that the appellants other than La! And Hamid having themselves armed with sticks went to Bund Walidadwala, a place far off from their residences, with an avowed purpose to kill Umar yet they did not cause any injury to the deceased rather felt content by holding the prosecution witnesses only. They neither abused nor raised a lalkara exhorting their co-accused to finish the deceased or the prosecution witnesses. No role whatsoever has been ascribed to Allah Bakhsh appellant. The reason for it is not far to seek. They appear to have realised that since Allah Bakhsh got his one arm incapacitated, he was not capable of taking anybody in his grip as alleged by the prosecution. They failed to explain injuries of Kabir and Allah Bakhsh appellants and also of Ghulam Sarwar in their statements before the police.
' Their attempt to explain them at the trial, perhaps under legal advice, affects their veracity adversely. Allah Dad P, W. Did not explain the injuries of Kabir as well as of Allah Bakhsh appellants even at the trial. Fie stated that at the time of occurrence Umar deceased was armed with a Kassi which he used against Lal and Hamid appellants. He stands falsified because neither the Investigating Officer nor the doctor observed any injury on their persons. Manzoor Hussain P. W. On the other hand explained that the appellants after their arrival at Bund Walidadwala started quarrelling with Umar who took lead in the attack by giving Kassi blow to Allah Bakhsh and broke his arm whereupon Lal and Hamid dealt him one stick blow each on his head. Allah Dad P. W.
Stated that the deceased gave Kassi blows to Lal and Hamid but after he had fallen down on account of the stick blows be did not cause any injury to any person. It means that Umar deceased received injuries after he had inflicted Kassi blows and caused injuries to some person (may be Allah Bakhsh, though denied by the witness). Manzoor Hussain P. W. Has completely supported the cross-version in his statement Exh. D. B. Made to the police. At the trial he disowned the statement attributed to him in Exh. D. B. But was successfully confronted with it by the accused's counsel.
Having realised that his version before the police is at variance with that he had made at the trial, he volunteered an explanation saying that "the police took Rs, 45,000 from the accused, therefore, they altered our statements and lodged a false case against us." This explanation weighed with the learned trial Court who in paragraph 27 of his judgment held the investigation as dishonest and also held the cross-case registered against the complainant party as false. We have noted that this allegation against the police was made for the first time at the trial. Also the complainant party felt shy of asking the Investigating Officer about it when he appeared as witness. This omission on the part of the prosecution speaks volumes about the hollowness of the allegation and we cannot help saying that the trial Court's observation was not based on legal evidence on record.
14. Apart from these infirmities both the eye-witnesses are highly interested against the appellants for variety of reasons, e.g. They are challaned in the cross-case ; they are inimically disposed towards the appellants ; and they are closely related to the deceased. Their testimony, therefore, cannot be relied upon in the absence of strong corroboration coming through some independent and unimpeachable source which is not available in this case. Furthermore, they have deliberately suppressed the injuries of the appellants during the investigation as well as at the trial. Manzoor Hussain P. W. Though tried to explain the injuries of Allah Bakhsh appellant yet the injuries of Kabir appellant and also gunshot injuries of Ghulam Sarwar entirely remained unexplained. We find that both the witnesses found themselves in a dilemma as for explanation of the injuries of the appellants are concerned. They talked about it with utmost reservation. According to them, Umar deceased alone wielded "Kassi", whereas the medical evidence shows that the appellants suffered injuries with three different weapons.
15. There is unexplained delay of 3 days in making the report to the police which has cast grave doubts about the genuineness of the prosecution story and the credibility of the eye-witnesses.
Had these witnesses seen the occurrence, who are kith and kin of the deceased, they would have not delayed the report till after the death of Umar who was admitted in the hospital at Rajanpur where the police was available at hand. It is significant to note that S.-I. Muhammad Anwar on receipt of information about the death of Umar reached there on 23rd August, 1976 and found Mehr Ali complainant (brother of Umar deceased) present near the dead body yet he did not inform the Sub-Inspector that Umar was attacked atd injured by any of the appellants, that is why the inquest report is particularly silent about the occurrence. It shows that by then the complainant party was still busy deliberating to weave a story and also 1/4 decide about the persons to be involved with a specific role. We are, therefore, led to the view that the prosecution story is the outcome of c, lengthy deliberations wherein eight persons have been involved for only two injuries suffered by the deceased.
16. We are not impressed by the defence story either. The appellants have not specifically pleaded self-defence, nor any evidence has been led to support the defence theory. Even Ghulam Sarwar who allegedly caused injuries to Umar deceased in exercise of his right of private defence avoided to appear in Court. Suffice it to say that onus lies heavily on the prosecution to establish its case beyond reasonable doubt independent of the weaknesses of the defence. In this case, it failed r to discharge its onus successfully. The eye-witnesses who appeared in this case are found to be highly interested and incredible and their testimony', deserves to be rejected.
17. For what has been stated above, we find that the judgment of conviction recorded by the learned trial Court is not sustainable. Con- p sequently, we accept this appeal and acquit the appellants. The reference is rejected and the criminal revision automatically fails.