' Khizar Hayat, J.--This appeal has been filed by Khaira son of Umar Din, Caste Virk, aged 70 years, resident of Chughian Lodhra, Police Station Chunian, District Kasur. He was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Sahiwal, who, by his judgment dated 18th March, 1980, convicted and sentenced him to death for committing the murders of Abdul Aziz and Bakhu deceased on 22nd July, 1978 at 11-30 a. m. In the factory shed, lhata No, 2 of Central Jail, Sahiwal, where the appellant and the two deceased were serving their sentences. The reference under section 374, Cr. P.C. For confirming the sentence of death is also before us.
2. The report of the incident was made by P.W.6 Khawaja Nazir Ahmad, Superintendent Central Jail, Sahiwal, who had sent a letter Exh. P.B. Addressed to the District Magistrate, Sahiwal, and copy was endorsed to the S.H.O. Police Station 'A' Division, Sahiwal, among others on 22nd July, 1978. The letter was not dated, but it appears to have been written on 22nd July, 1978, because an endorsement thereon by Ghulam Farid S.I. P.W.11 shows that this letter was received by him in Court premises of Sahiwal on 22nd July, 1978 at 1-30 p.m. He had sent this letter to the Moharrir directing him to register a case and then sent the file to him. The contents of this letter are being reproduced with advantage:- "At about 11-30 a.m., Khaira son of Umar Din, convicted to Transportation for Life has allegedfy killed a convict Bakhoo son of Chulam and injured another convict Aziz son of Nizam Din grievously when they were asleep in the factory shed.
' You are, therefore, requested to kindly depute a Magistrate for holding an inquest into the incident immediately as required vide para. No, 747 of the Punjab Jail Manual."
' There is nothing on record to show if any Magistrate has ever held an inquiry into the incident.
However, on the basis of this letter a formal F.I.R. Exh. P.B/1 was drawn up by Barkat Ali, Moharrir Head Constable P.W.5 and then the file was received by S.I. Ghulam Farid through Khushi Muhammad Constable No, 1147 for investigation.
3. Ghulam Farid S.I. Reached Central Jail, Sahiwal, at 2 p.m. And took up the investigation. He found the dead body of Aziz lying in the Deorhi of the jail. He prepared the inquest report and sent it to Civil Hospital through Khushi Muhammad Constable for post-mortem examination. He then went to the lhata where the dead body of Bakhu was lying. He prepared the injury statement and inquest report of Bakhu deceased and sent the dead body through Abdul Shakur Constable for post- mortem examination. During the spot inspection, he collected blood-stained earth from two different places where the deceased were attacked and injured. The blood-stained iron weights weighing 2 seers each were taken into possession vide memos. Exh. P.D. And Exh. P.E. And one blood-stained iron weight weighing 10 seers was seized through memo. Exh. P.F. These recoveries were attested by Muhabbat P.W.7 and Naseer (not produced). The Chemical Examiner reported that blood-stained earth and the iron weights were stained with blood, vide report Exh. P.N, and the Serologist's report Exh. P.O. Confirmed that the blood was of human origin. The appellant was arrested by Muhammad Aslam S.I. Ghulam Farid S.I. Who after completing the investigation challaned him and sent him up for trial.
14. Dr. Lqbal Asghar P..W.9 had performed the autopsy on both the dead bodies of Abdul Aziz and Bakhu deceased on 22nd July, 1978 at 6-00 p.m. And 6-30 p.m. Respectively. He observed the following injuries on the dead body of Abdul Aziz:--
(1) A contused wound 1-1/2"x 1/2" x bone deep on the left side of head 3" above the left ear.
(2) A contusion 1-1/2" x 1" on the back of left ear (Pinna).
(3) Multiple abrasion- in an area 2" x 1" on the left side of forehead just above left eye-brow.
(4) Abrasion 1" x 1/2" on the left cheek 1" below left eye.
(5) A contused wound 3/4" x 1/4" x muscle deep in left side of upper lip outer part.
' There was haematoma under scalp under injuries No, 1 and 3, fracture of left temporal bone under injury No,1, depressed fracture of left frontal bone under injury No,3, fracture line extended to base of skull in anterior fossa and both middle cranial fossa. There was fracture of left maxilla bone under injury No,4 and a haematoma outside the membrane under injury No,
3. Brain matter was congested. The death in the opinion of the doctor occurred due to shock and haemorrhage caused by injuries Nos. 1 and 3. All the injuries were ante-mortem and were caused by a blunt weapon. Injuries Nos.1, 2 and 14 were grievous while injuries Nos. 2 and 5 were simple in nature.
Injuries Nos. 1 and 3 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature. Time between injuries and death was about 2 hours and between death and post-mortem examination about 4-1/2 hours.
5. The same doctor observed the following injuries on the dead body of Bakhu:--
(1) A lacerated wound 1-1/2" x 3/4" x bone deep on the inner part of left eye-brow with depressed contusion x 4" on the left side of face. There was a depressed fracture of left frontal bone, left and right maxilla and nasal bones.
(2) A lacerated wound 2-1/2" x 3/14" x bone deep on the right side of forehead, 1/2" above right eye- brow. There was fracture of right frontal bone underneath.
(3) A lacerated wound 3/14" x 1/4" x bone deep on left side of chin. There was fracture of mandible underneath. Scalp injury to scalp under injuries Nos. 1 and 2, there was fracture of both frontal left parietal, left temporal bone, alongwith multiple fracture of interior and middle cranial fossa at the base of scalp under injuries Nos.1 and 2. Injuries to membranes and brain matter under injury No,1.
The death in the opinion of the doctor was caused due to shock and haemorrhage caused by injuries Nos. 1 and 2. All the injuries were ante-mortem in nature caused by blunt weapon and were grievous in nature. Injuries Nos. 1 and 2 individually and also collectively could cause death in the ordinary course of nature. The duration between injuries and death was immediate and between death and post-mortem examination about Li to 8 hours.
6. The motive for the offence has been described to be that a day before occurrence, both the deceased had quarrelled with the appellant upon the distribution of labour (Mushaqqat) and in sequel to this quarrel, the appellant had committed their murders.
7. The prosecution case rests on the evidence of motive, ocular account furnished by Muhabbat P.W.7 and Ghulam Farid P.W.8, the recovery of blood-stained iron weights allegedly used for committing the murders proved by P.W.7 and P.W.11 and the medical evidence.
8. The appellant's case is that of denial simpliciter. He did not produce any evidence in defence.
9. Muhabbat P.W.7 and Ghulam Farid P.W.8 were serving their sentence as life convicts at the relevant time. They stated that a day before the occurrence the appellant and the two deceased namely, Bakhu and Abdul Aziz had quarrelled with each other on the question of doing labour (Mushaqqat). No details of the quarrel were furnished by them. On the other hand, Muhabbat P.W.7 conceded in cross-examination that such quarrels were of routine nature and frequently took place among the prisoners in the jail. Evidently, a quarrel of trivial nature as stated by the aforementioned P.Ws. Could not motivate the appellant an old man of seventy years, to cause the death of his two fellow prisoners. This motive does not find mention in the letter Exh. P.B. Which forms the basis of the F.I .R. In this case. It is difficult to appreciate how the Superintendent of Jail, who ordinarily must have made inquiries and collected details before the despatch of letter Exh. P.
B. Failed to mention the cause which led to the murder of two persons by the appellant. To us it appears that the story of the appellant's quarrelling with the deceased persons a day before the occurrence has been introduced to provide a motive for the offence to strengthen the prosecution case.
10.
10. The ocular account in this case, as noticed above, has also been furnished by Muhabbat P.W.7 and Ghulam Farid P.W.8. They stated that they were present in lhata No, 2 (place of occurrence) alongwith Naseer and Shabal in order to pick up some wool lying there, when they saw that both the deceased were asleep and Khaira appellant was present there on duty, in their presence and view, the appellant struck an iron weight of 20 seers on the left side of the head of Bakhu deceased.
He then picked up another weight of 20 seers and struck the same on the left side of the head of Aziz deceased. They also stated that when the appellant was picking up another weight of 10 seers, they with the help of Naseer and Shabal caught hold of him and then produced him before the Deputy Superintendent Jail, who subsequently produced him before the police on their arrival.
Before the police, their case was that they were placing wool in a room .Situated on the southern side of the place of occurrence and when they were returning from there, they had seen the occurrence, but at the trial Muhabbat P.W.7 stated that he was picking up the wool from the eastern side of the lhata and storing it on the western side when he saw the occurrence while Ghulam Farid P.W.8 stated that he and Muhabbat P.W.7 were storing the wool in a room situated on the western side of the place of occurrence. Both Muhabbat P.W.7 and Gh-ulam Farid P.W.8 categorically denied that they had stated in their statements Exh. D.A. And Exh. D.B., respectively that they were returning after storing the wool in the room situated on the southern side of the place of occurrence when they had seen the occurrence. They were confronted with their statements wherein these portions existed. The site-plan Exh. P.A. Does not show any wool store on the south of the place of occurrence. This discrepancy in the statements of the eyewitnesses and the non-existence of any wool store in the south of the place of occurrence renders the presence of the P.Ws. At the spot doubtful. There is no doubt that towards the west of the place of occurrence there is a wool store but the question remains as to wherefrom they were lifting the wool, so that it could be inferred whether or not the place of occurrence fell in their way.
11. The learned counsel for the appellant has argued that the ocular evidence is in glaring conflict with the medical evidence inasmuch as the number of injuries found on the person of both the deceased do not correspond with the number of blows said to have been given by the appellant.
Muhabbat P.W.7 has stated that. The appellant had struck the iron weight once on the head of Abdul Aziz deceased whereas according to Ghulam Farid P.W.8, two blows were given, but the doctor lqbal Asghar P.W.9 had observed as many as five injuries on the dead body of Abdul Aziz. He has stated in his cross-examination that each injury on the person of Abdul Aziz deceased was the result of separate blow. Similarly, there are three injuries on the dead body of Bakhu but according to the eye-witnesses the appellant had struck him only once with an iron weight. We have looked at the diagram of Bakhu deceased and have noticed that injury No, 1 has been shown on and around the left eye, while injury No, 2 on the right side of the forehead little above the right eye- brow and injury No, 3 on the left side of the chin. These injuries could under no circumstance be caused with one blow, because nose intervenes in between injuries .Nos. 1 and 2 and if the iron weight was struck in the manner that it caused injuries Nos. 1 and No, 2, the nose must also have been injured. So, the injuries of Bakhu appear to be the result of three separate blows, whereas the claim of the eyewitnesses is that the appellant had struck Bakhu deceased only once with an iron weight. Similarly, the diagram of injuries of Abdul Aziz shows that five injuries on his person could not be the result of one or two blows. We, therefore, conclude that the so called eye-witnesses have not witnessed the occurrence and that is why their evidence did not fall in line with the medical evidence.
12. There is yet another important aspect of this case, which belies the prosecution story. According to the site-plan, the two deceased were sleeping at a distance of 70 feet from each other. The appellant is admittedly 73 years old. The witnesses are said to be present at a distance of 18 feet from the place where Abdul Aziz was alleged sleeping. The prosecution case is that the appellant had first attacked Bakhu deceased and then he carried the two 20 seer iron weights and one 10- seer iron weight with-him to the place where Abdul Aziz was sleeping and then struck him with those weights. In the first place, it not believe-able that when Bakhu was attacked and killed. Abdul Aziz kept enjoying nd sleep and if it was so and the witnesses were also present only 18 away from Abdul Aziz, then how it happened that after .Killing Bakhu we of the witnesses, he was able to carry these heavy weights with the such an ability that by covering 70 feet he was able to strike him twice and kill him before he was overpowered by the witnesses. We feel that had these witnesses (who are certainly younger to the appellant) been present at the spot, then they must have captured the appellant while carrying the weights towards Abdul Aziz before he could do any harm to him. These circumstances have completely knocked the prosecution case out of bottom and make us believe firmly that these so-called eyewitnesses have not at all witnessed the occurrence and that they are just the, put-up witnesses of the jail authorities.
13. The recoveries of blood-stained iron weights and the reports of the Chemical Examiner and the Serologist containing positive results are of no avail to the prosecution, firstly, because these recoveries were also attested by the same witnesses whom we have disbelieved earlier and, secondly, for the reason that when the ocular evidence falls through the evidence of recovery which is admittedly circumstantial evidence, even if believed, would not help the prosecution.
14. For what has been stated above, we are of the view that the prosecution has failed to bring home the charge to the appellant beyond reasonable doubt. We, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him. The sentence of death is, accordingly, not confirmed.