' MIAN BURHANUDDIN KHAN, J.-This order will dispose of both the above-mentioned Criminal Appeals which are directed against the judgment and order dated 5-3-1979 of the learned Lahore High Court passed in Criminal Appeal No, 708 of 1978 and Murder Reference No, 211/1978.
2. Muhammad Boota, Mahmood Ahmad, Muhammad Haneef and Mehdi Khan were tried by the learned Additional Sessions Judge, Sialkot under section 302/34, P.P.C. For the murder of Rana Muhammed Yaqub, Muhammad Boota and Muhammad Hanif were convicted and sentenced to death under section 302, P. P. C. Subject to confirmation by the High Court. Mahmood Ahmad and Mehdi Khan were sentenced to life imprisonment but no fine or compensation was awarded.
Appeal was filed in the High Court and Murder Reference was also placed before the learned Judges who confirmed the death sentence of Muhammad Boota and acquitted Mahmood Ahmed, Muhammad Hanif and Mehdi Khan.
3. Jail Petition No, 80/R/1979 was filed against his conviction and sentence and leave was granted vide order of this Court dated 16-10-1979 while Noor Muhammad brother of deceased Rana Muhammad Yaqub also filed Criminal Petition for Leave to Appeal No, 251/79 against the acquittal of the accused and leave in this petition was also granted vide order dated 9-11-1980.
4. According to the prosecution case, on 4-7-1976 Nur Muhammad P. W. Alongwith his brother Rana Muhammad Yaqub were proceeding on bicycles, from Qila Sobha Singh to their village Lala at about 6 p.m. As soon as they reached near the tube-well of Meraj Din Arain, accused/appellants appeared. Muhammad Boota and Muhammad Hanff, who were armed with revolvers, started firing at the deceased Rana Muhammad Yaqub who was bit and fell to the ground while Mahmood Ahmad and Mehdi Khan, who were armed with daggers, started giving blows to the deceased Rana Yaqub. Complainant Nur Ahmad raised alarm which attracted Tufail and Nazir Ahmad P. Ws.
Who witnessed the occurrence. According to the complainant, Muhammad Hanif had secured allotment of some land fraudulently. Rana Muhammad Yaqub gave information in this behalf to the authorities concerned and because of this grudge Muhammad Hanif alongwith others attacked the deceased.
5. Nur Muhammad proceeded to Police Station Qila Sabha Singh, District Sialkot and lodged the report Exh. P. A. Which was recorded by Ramzan All Shah P. W. 14 then S. H.
0. At the said Police Station. The injured Rana Muhammad Yaqub was sent to Civil Hospital, Narowal where Dr. Fahmida P. W. 2 found 3 circular wounds with burnt edges, three stab wounds and four incised wounds of various dimensions on various parts of the person of the injured Yaqub, during his medical examination she conducted on 4-7-1976 at 810 p. m. And finding the condition of the injured to be serious she referred him to Aliama lqbal Memorial Hospital, Sialkot wherefrom the injured was further referred to Mayo Hospital, Lahbre where Dr. Muhammad Aslam Javaid P. W. 3 operated upon the injured Rana Muhammad Yaqub on 5-7-1976 but he succumbed to his injuries at 12-45 p. m on 5-7-1976, Dr. Tahir Anis P. W 15 performed the post-mortem examination on 6-7- 1976 and found the following injuries on the body of Muhammad Yaqub deceased
(i) A lacerated peneterating wound 1/3' x 1/4' over left front outer chest with margins slightly blackened and inverted.
(ii) Penetrating lacerated wound 1/8" x 1/8" over outer front mid left arm with inverted blackened margins.
(iii) Penetrating lacerated wound 1/3' x 1/4" over inner back lower left arm with margins communicating with injury (ii).
(iv) Incised wound 5/8" x 1/8' muscle deep over mid left cheek.
(v) Incised wound 1/2' x 1/8" muscle deep over mid right over lower eye-lid.
(vi) Penetrating lacerated wound 1/.3' x 1/4" over left forehead with inverted blackened margins.
(vii) Stitched incised wound 1'1/2" long over front lower part of right arm horizontal.
(viii)Stab 11/4" long partly stitched over mild lower abdomen. (i.t) Stab 3/4" long partly stitched over mid upper abdomen.
(x) Stitched sharp-edged vertical wound 11" long over right side of abdomen.
6. At the trial, Nur Muhammad, P. W. 1 brother of the deceased gave the prosecution story as narrated in paragraph 4 above and produced certified documents showing the case of double allotment made by Mohammad Hanif and that the deceased Rana Muhammad Yaqub had given secret information about this to the authorities concerned. Muhammad Tufail, P. W. 9 also gave ocular account of the occurrence. According to him, on the day of occurrence he was coming back to Qila sobha Singh after collecting money from village Dholan, Rajpura. When he reached near the place of occurrence he saw the accused Muhammad Boota, Muhammad Hanif, Mahmood alias Babi and Mehdi Khan who were armed with pistols and daggers. Rana Muhammad Yaqub deceased, alongwith his brother Nur Muhammad were coming from the side of Qila Sobha Singh towards village Lala on bicycle. He further stated that Muhammad Hanif raised a lalkara saying that 'they would deliver' possession of the land to him on that day' and opened fire which hit the deceased Rana Muhatnmad Yaqub who fell from the bicycle and ran for about ten paces but fell down again. The other accused started attacking the deceased with daggers: Hazir Gujjar was also accompanying him (the witness) Nur Muhammad raised alarm. Baggu alias Mahmud and Muhammad Boota ran towards the West and the other accused towards the south. Later on, people from the village arrived. The deceased was still alive. A cot was brought and the injured Rana Muhammad Yaqub was placed on it and Was carried towards Qila Sobha Singh Nur Muhammad left for the Police Station while the villagers carried the injured to the Narowal Hospital.
7. Ramzan All Shah P. W. 14 then S. H.
0. Qila Sobha Singh recorded the F. I. R. Exh. P. A. At about 6-30 p. m. He then visited the spot collected blood-stained earth vide Memo. Exh. P. K. a pair of shoes belonging to the deceased vide Memo. Exh. P. 3/1-2 and bicycle Exh. P 4 lying at the spot. He arrested Muhammad Boota on 6-7- 1976 and at his instance, recovered revolver P. 5 with four empties Exhs. P. 6 to P. 9 and two live bullets Exh. P. 10 and P. 11 in the chamber of the revolver and sealed them into a parcel. Boota accused also led to the recovery of a bayonet Exh. P. 12 from a sugarcane field where he had concealed it along-with the aforementioned revolver P.
5. On 8-7- 976 he arrested Mahammad from the bus-stand Alipur on whose personal search the witness recovered from him revolver P.
13. Which was found loaded with four cartridges P. 14/1-4 which were also taken into possession and were sealed into parcel vide Memo. Exh. P. C. Subsequently the investigation had been conducted by Mr. Ghulam Dastgir Inspector, Crimes Branch and on 16-11-1977 Mirza Ghulam Haider, Inspector C. I. A. Took over the investigation and took into possession photostat copies of certain documents produced by Nur Muhammad P. W. Complainant.
8. The learned trial Court placed reliance on the testimony of Nur Muhammad and Muhammad Tufail P. Ws. Plus the recovery of the weapons of offence and held all the four accused guilty and sentenced them as mentioned in paragraph 2 above, on the following reasoning ; given in the judgment dated 8-7-1978 "So far as, the sentence 'is concerned, we find from the medical evidence that the death was due to' coma resulting from injury No, 6 and shock and bleedings caused by injuries Nos. 1, 8 and 9 which were sufficient to cause death in the ordinary course of nature. Now so far as the injuries Nos.
1 and 6 are concerned, we are certain that they were caused by fire-arm and the accused who fired at the spot were Muhammad Hanif and Muhammad Boota. They are, therefore, liable to suffer death penalty. So far as the injuries Nos. 8 and 9 are concerned they were injuries with daggers.
Now the complainant in his testimony, does not state as to who caused those two specific injuries out of five injuries by a sharp-edged weapon. In this view of the matter, Mehdi Khan and Mahmood Khan who were carrying daggers at the time, deserve the lesser punishment than the principal accused with revolvers. In their case 1 feel that the ends of justice would be met if sentence of life imprisonment is awarded to them. Order accordingly."
9. On appeal, the learned Judges of the Lahore High Court observed in the impugned judgment in para. 14 thus "There is no incriminating recovery against Muhammad Hanif and Mehdi Khan appellants. They were placed in column No, 2 on being found innocent in three successive investigations which include the investigation held by Ghulam Dastgir, Inspector and Mirza Ghulam Haider Inspector, Crimes Branch. Noor Muhammad P. W. Admitted in cross-examination that he had no complaint against the investigation of Gbulam Dastgir Inspector, nor did he make any complaint against the investigation of Mirza Ghulam Haider Inspector "
' The learned Judges proceeded to examine the case of Mehdi Khan and his nephew Muhammad Hanif and observed that strong corroboration for recording a conviction on a capital charge against these two persons is lacking and thus giving both of them the benefit of doubt, allowed their appeal, set aside their conviction and sentences and acquitted them. Regarding Mahmood Ahmad it was observed that the recovery of revolver Exh. P. 13 does not advance the case of the prosecution for maintaining his conviction on the charge of murder as according to the F. I. R. And the evidence at the trial, Mahmood Ahmad appellant at the time of incident was armed with a khanfar and he used the same weapon and none other. Hence, extending the benefit of doubt the conviction and sentence of Mahmood Ahmad was also set aside.
10. The learned High Court Judges, however, believed the recovery of pistol, Exh. P. 5 at the instance of Muhammad Boota appellant and relied on the testimony of Ramzan Ali Shah, Sub-Inspector P.
W.
14. It is on the record that the attesting witness of this recovery namely Inayatullah was declared hostile at the request of the prosecution. In his cross-examination by the defence he stated that he was sitting at the Police Station at the time of occurrence when neither the S. H.
0. Nor the A. S. I. Were present in the Police Station. The Muharrir was there and in his (witness's) presence Muhammad Aslam of village Dholan, P. W. In this case had come to the Police Station and informed about the occurrence. He informed that Rana Yaqub had been murdered within the area of village Maan ; that on his inquiry, he further informed him that he could not identify the assailants who were two in number ; that after hearing about the occurrence, he and the Muharrir ran towards the spot where the Muharrir met the villagers of Maan village and Bhehlolpur who were pursuing the assailants' that he saw about 100 people chasing the assailants. Now, Inayatullah being a prosecution witness and declared hostile, his evidence cannot be totally brushed aside in its entirety unless there is reason to hold that he has prevaricated in order to help the accused/appellant but no such facts had been admitted by him in his cross-examination by the prosecution except that he had a lambardari dispute with the father of the deceased about 16 years back. A witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the Court ; that the witness's answer to certain question is in direct conflict with evidence of other witnesses and is not and can A never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined. However, section 154, Evidence Act in no way fetters the discretion of the Court to permit leading questions to be put by a party to his own witnesses ; the Court has unfettered discretion to allow the prosecutor to cross-examine the prosecution witnesses.
11. We may now have a glance at the F. I. R. Wherein Nur Muhammad, P. W. 1 stated that Muhammad Boota and Muhammad Hanif fired with revolvers at the deceased who fell to the ground. It is nowhere stated in this report that Muhammad Boota was armed with a bayonet. There is difference between a bayonet and a khanjar. Recovery Memo. Exh. P. M. Would show that Muhammad Boota led the police to the recovery of a revolver, Exh. P. 5 and Akbar Ali and Inayatullah were attesting witnesses to the Memo. Inayatullab's evidence has already been discussed while Akbar Ali was given up. In recovery Memo. Exh. P. N. We find that Muhammad Boota led the police to the recovery of a bayonet which was found bloodstained. Prosecution has not produced the Serologist's Report but the learned Judges of the High Court, at the time of hearing of the appeal, placed reliance on this report and treated it as evidence in the case while the fact remains that the bayonet was never shown to be in possession of Muhammad Boota nor it is the prosecution case that Muhammad Boota had used a bayonet after firing at the deceased. Nur.
Muhammad, P. W. 1 at the trial also never made any such allegation that Muhammad Boota had a bayonet. All what he stated is that four persons came out of the reeds of which Muhammad Hanif, and Muhammad Boota were armed with revolvers while Mahmud and Mehdi were carrying daggers. Muhammad Boota and Hanif opened fire on the deceased Muhammad Yaqub with their revolvers and hit the deceased who fell, while he was so lying, Mehdi Khan and Mahmud started giving blows with daggers.
12. We find that the learned Court attached disproportionate weight to the circumstantial evidence of the recovery of pistol , &b. P. 5 from Muhammad Boota. This revolver cannot be connected with the crime because no empty shell was recovered from the spot to match with the revolver allegedly recovered at the instance of Muhammad Boota. It is unsafe to convict a man for murder merely because a blood-stained dagger bayonet was recovered at his instance when the evidence is that other people had also access to the place of recovery i,e, the sugarcane field.
Moreover, the villagers, as transpires from the record, were well aware of the identity of the murderers but whether it was because the murderers were favourites of the Police or the prosecution had involved innocent people with the guilty ones? For these reasons we accept the appeal of Muhammad Boota appellant and acquit him of the charge of murder and he shall be set at liberty forthwith, if not required in any other case.
13. As regards the acquittal of Mehdi Khan, Muhammad Hand and Mahmud Ahmad (in Criminal Appeal No, 263 of 1980) that they had joined Muhammad Boota appellant in the commission of offence. It has been disbelieved by the learned High Court Judges and rejected too for the reason that there was no corroboration of the ocular testimony of Nur Muhammad P. W. 1 and Muhammad Tufail, P. W.
9. Muhammad Tufail has not, C established his presence at the spot at the crucial time by in unimpeachable evidence. Agreeing with the finding of the High Court we find no merit I this appeal, which is, consequently, dismissed.