' KAMAL MUSTAFA BOKHARI, J.-- Jaffar, aged 50 years, son of Karam alongwith two others, namely, Gui Muhammad alias Gullu son of Qadir Bakhsh and Ashfaq son of Allah Dad, was tried for the murder of Hafiz Riaz Ahmad aged 25/26 years and for murderous assault on Rustam P.W. The Additional Sessions Judge, Multan on 21-12-1981, acquitted Gul Muhammad alias Gullu and Ashfaq and convicting Jaffar under section 302, P.P.C. sentenced him to death subject to confirmation by this Court and imposed on him fine of Rs, 10,000 and in default of its payment to further undergo R.I. for one year. If realized, half of the fine was ordered to be paid to the heirs of the deceased as compen sation under section 544-A, Cr.P.C. This judgment will dispose of appeal of Jaffar against his conviction and sentence as well as reference made by the trial Court for confirmation of his death sentence.
2. On the night between 14th and 15th of August, 1979 Rustam P.W. and Riaz Ahmad deceased after saying their Taraweeh prayer, slept on separate Charpais in front of the Baithak room of the deceased in village Barhamanwala. At about 2 a.m. on 15-8-1979, Rustam P.W. was awakened by the cries of deceased. It was a moonlit night of 21st of the month of Ramzan-ul-Mubarik. He saw that Jaffar appellant, resident of Chak Jhandwala Mauza Khaggeywala was giving Khanjar blows to the deceased. The deceased resisted two blows with his left hand and suffered injuries.
Thereafter, the appellant delivered Khanjar blow in his chest. The appellant was accompanied by two other accused whose description was given. They carried a Sota each and were raising alarm that the appellant should not spare the deceased. When Rustam P.W. stepped forward to rescue the deceased the two unidentified accused (since acquitted) caused him injuries which fell on his head, back, waist, buttocks and left side of chest upon which Rust am P.W. fell down. The cries raised by them attracted Khuda Bakhsh P.W. of the same Mauza who witnessed the occurrence.
The appellant with Khanjar and his two co-accused with Sota escaped. After the occurrence had taken place Nazar Hussain P.W., Muhammad Asghar, Malik Chiragh, Bashir Ahmad Shah and Ghulam Muhammad also reached the spot. The deceased and Rustam P.W. in injured condition were carried in a tractor trolley to Rural Dispensary Makhdum Rashid but the deceased died of injuries on arrival in the Dispensary while Rust am P.W. was admitted.
' The motive given in the F.I.R by Rustam P.W. was that the appellant had forcibly taken possession of 34 Bighas of land belonging to Hafiz Manzoor Ahmad, his first cousin, after death of the father of latter. About 2 or 3 years before the occurrence the deceased through Punchayat had got the possession over the said land restored to Hafiz Manzoor Ahmad which annoyed the appellant.
Another motive was that Mst. Faizan mother of Hafiz Manzoor Ahmad, was suspected of having illicit liaison with the appellant. After dispossessing the appellant from aforementioned land the deceased had developed illicit relations with Mst. Faizan.
' Safdar Hussain Nasar P.W. S.H.O. Police Station Makhdum Rashid recorded statement of Rustam P.W. in the Rural Dispensary Makhdum Rashid on 15-8-1979 at 8-45 a.m. on which formal F.I.R. was registered at the Police Station on the same day at 8-55 a.m. The place of occurrence, Barhamanwala and Police Station Makhdum Rashid were situated seven miles apart.
3. After recording statement of Rustam P.W. in the Rural Dispensary Makhdum Rashid. Safdar Hussain Nasar S.H.O. P.W. sent it for registration of the F.I.R. and himself despatched the deadbody to the mortuary for autopsy after completing formalities. He secured blood stained clothes of Rustam P.W. in the dispensary. He went to the spot and took into possession blood-stained Dohr P.11, pillow P.12 and cot P.10 of the deceased. He arrested the appellant on 27-8-1979 when Nasar Hussain P.W. produced the appellant before him. The acquitted co-accused of the appellant, Gul Muhammad alias Gullu and Ashfaq were produced before him by the same Nazar Hussain on 28- 8-1979 and he arrested them. Gul Muhammad produced before him blood-stained Sota P.7 which was taken into possession. Ashfaq acquitted accused produced his blood-stained Sota with which he caused injuries to Rustam P.W. and also produced purse P.4 of the deceased containing identity card of the deceased which were secured vide Memos. Exhs. P.E. and P.F respectively. On 31-8-1979 appellant led the Investigating Officer to recovery of blood-stained dagger (P.13) from his residential Kotha which was taken into possession vides Memo. Exh. P.R. On 18-10-1979 the Investigating Officer applied for identification of the two acquitted accused who were picked up in the parade by Rustam P.W. After completing investigation the appellant and the two acquitted accused were challenged in Court per final report. Dagger of appellant Sota of Ashfaq, bed-sheet and pillow of deceased were reported to be stained with human blood.
4. Dr. Muhammad Ashraf P.W. medically examined Rustam P.W. on 15-8-1979 at 6-50 a.m. and found eleven injuries on his person caused within duration of six houRs, All injuries were simple in nature caused by blunt weapon except injury No, 7 which was declared grievous because according to the X-ray report and Radiologist there was fracture of 8th rib.
5. The dead body of Riaz Ahmad deceased reached Dr. Munawar Tahir Hussain P.W. on 15-8-1979 at 6 p.m. and since it had become dark and he was not supposed to hold autopsy in artificial light the doctor conducted post-mortem examination when he found the following four injuries on it:-
(1) An incised wound 21 c.m. x 1 c.m. which was a wound of entry on the proximal phalanx, on the dorsum surface of the left hand index finger.
(2) Exit wound of injury No,1 located between Index and middle finger of left hand palmer aspect, 1 c.m. x c.m. in size.
(3) A stab wound 3 c.m. x 1 c.m., 4 c.m. below the right nipple and 8 c.m. from the right nipple, going into the chest cavity.
(4) Just c.m. below injury No,3 there was a stab wound 12 c.m. x 1 c.m. reaching 8 c.m. above the umbilicus. The whole wound length was extending on the right side of chest and abdomen. The lower part was externally stitched.
' In the opinion of doctor the death resulted due to injuries Nos. 3 and 4 on lung and liver and also due to injury to the blood vessels inside the abdomen which were sufficient to cause death in the ordinary course of nature. All injuries were reported caused with sharp-edged pointed weapon. The time between injuries and death was within six hours and that of between death and post-mortem was given as between 30 to 36 houRs,
6. The prosecution examined Rustam first informant (P.W.1) and Khuda Bakhsh (P.W.2) as eye- witnesses and the former also gave motive while Nazar Hussain (P.W.3) was produced as a Wajtakkar witness who also deposed about the extra-judicial confession of the appellant before him on 22-8-1979 and that of his two acquitted co-accused made on 28-8-1979. The recoveries of incriminating Sodas, watch and purse of deceased from the two acquitted accused were proved by same Nazar Hussain, Muhammad Asghar (P.W.9) and the Investigating Officer Safdar Hussain Nasar S.H.O. (P.W.11). The recovery of blood-stained dagger (P. 13) from the appellant was proved by Allah Bakhsh (P.W.10) and the same Investigating Officer, Safdar Hussain Nasar.
7. The appellant pleaded not guilty to the charge. The acquitted accused denied the recoveries and stated that they had been falsely implicated and police had previously shown them to Rustam P:W. who picked them up in the identification parade. The appellant also denied the recovery of Khanjar at his instance and stated that the same was fake. He denied to have been produced before the police and stated that he had been illegally detained and false date of his arrest had been shown. According to the appellant the case against him was false, witnesses were interested and prosecution story had been fabricated after deliberations. The appellant examined Abdul Waseh, Deputy Superintendent of Police as D.W.1 who deposed that he found appellant innocent in his investigation and placed his name in column No, 2 of the final report under section 173, Cr.P.C.
8. The testimony of Khuda Bakhsh was ruled out of consideration by the trial Court. The testimony of Nazar Hussain P.W. who claimed to have seen the appellant and his co-accused running away was not relied upon. The evidence of extra-judicial confession by the two co-accused and their identification in parade were discarded by the trial Court who were given benefit of doubt and acquitted. The appellant was convicted on the testimony of Rustam, first informant, extra-judicial confession made by the appellant, recovery of dagger and motive alleged by the prosecution.
9. We have been taken through the evidence in this case which we have ourselves read and considered in the light of submissions made by the learned counsel for the parties.
10. There is no doubt left in our mind that Hafiz Riaz Ahmad died as a result of violence at about 2 a.m. of 15-8-1979. The trial Court has believed only Rustam P.W. as eye-witnesses. The medical evidence shows that he suffered injuries at the time deceased was injured. He claims to have seen the occurrence in the moonlit night from a distance of 4/5 paces where the deceased was given dagger blows by the appellant. According to Rustam P.W. he suffered injuries at the hands of Gul Muhammad alias Gullu and Ashfaq co-accused of the appellant. Rustam did not name them but only gave their description in the F.I.R. which was registered on his statement. Evidently he did not identify them. An identification parade held on 4-11-1979 in which Rustam picked up both the aforementioned acquitted accused. At the trial Rustam deposed that the appellant and Gul Muhammad acquitted accused were cousins inter se while Ashfaq Ahmed acquitted accused was their friend. He deposed in cross-examination that none of the accused had muffled his face and he had seen their faces and had identified them at the place of occurrence. He further deposed that he knew for about 15 to 20 years that the appellant and Gul Muhammad acquitted accused were first cousins and also knew of the friendship of Ashfaq Ahmad acquitted accused with them for about two yeaRs, According to Rustam P.W. he lived at a distance of five Killas from the place where Gul Muhammad acquitted accused lived. Ashfaq Ahmad was resident of the same village in which Rustam P.W. lived. Rustam P.W. also deposed in cross-examination that he knew Ashfaq Ahmad acquitted accused since long time as also knew his father Allah Dad and paternal-uncle Khuda Bakhsh P.W. Therefore, we are satisfied that Rustam P.W. personally knew the appellant and the two acquitted accused but for some reason best known to him did not mention names of the acquitted accused in his statement on which F.I.R. was registered. The trial Court has not believed him qua the acquitted accused. He is not a truthful witness. No reliance can be placed on his testimony for convicting the appellant. It is probable that he did neither see the appellant causing injuries to the deceased nor could identify him. He deposed that he was sleeping at a distance of 13 Karams from the deceased and claimed to have witnessed the injuries being caused by the appellant from a distance of 4/5 paces although no such distance was given by him in the F.I.R. His testimony is discrepant and he has made improvements on substantial points. No blood-stained earth was recovered from the spot where deceased was done to death. It is in evidence that, he fell on the ground and was placed' back on the cot where he was sleeping.
11. The motives alleged by the prosecution were given by this witness alone. The motive of restoration of possession through Panchayat was of four years prior to the occurrence and nothing happened in between this period. The motive of illicit liaison between the deceased and Mst. Faizan was 'neither taken to the Panchayat nor was it disclosed to any member of the family although it is stated to be four months old. We are of the view that the motive alleged in the case has not been established by the prosecution.
12. The appellant allegedly made extra-judicial confession before Nazar Hussain (P.W.3). Nazar Hussain was a Wajtakkar witness and claimed to have seen accused running away. The trial Court did not rely upon his testimony. Nazar Hussain was also not believed by the trial Court as regards the extra-judicial confession made before him by the two acquitted accused. We do not consider it safe to rely on his testimony that the appellant made extra-judicial confession before him on 27-8- 1979, after 12 days of the occurrence. The recovery of dagger was sought to be proved by Allah Bakhsh (P.W.10). The trial Court did not fully rely upon his testimony and found that the recovery stood proved by the testimony of Investigating Officer, Safdar Hussain Nasar, S.H.O. alone. The dagger was allegedly produced by the appellant before Investigating Officer Safdar Hussain Nasar on 27-8-1979 but he deposited it in the Malkhana on 5-9-1979 for which no explanation was given.
The Investigating Officer has not been believed for recoveries of Sotas from the acquitted accused.
We do not consider it safe to rely on the recovery of dagger from the appellant. On the evidence on record the prosecution has failed to prove its case against the appellant beyond reasonable doubt.
' For the foregoing reasons we accept the appeal set aside the conviction and sentence of the appellant and acquit him. By a short order appellant had been ordered to be set at liberty if not required in any other case.
' Death sentence of appellant is not confirmed.