' IJAZ NISAR, J.--Muhammad Hussain alias Dhali son of Khan Muhammad (25) was tried alongwith his brothers Ghulam Hussain (23) and Pehlwan (70) for the murder of Muhammad Hussain deceased (22) with a hatchet and sota in the area of village Bara Meel, P. S. Kabirwala, District Multan on the night of 25th April, 1980, by the learned Sessions Judge, Multan and convicted under section 302, P. P. C. And sentenced to death and a fine of Rs, 5,000 or in default to undergo R. I. For one year. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr. P. C. Ghulam Hussain and Pehlwan co- accused were, however, given the benefit of doubt and acquitted.
' We have before us the appeal filed by Muhammad Hussain alias Dhali and the connected murder reference.
2. The prosecution case is that Muhammad Hussain deceased married Mst. Shamim Mai real sister of the appellant and Ghulam Hussain accused (since acquitted) without the knowledge and consent of her brothers. A suit was got filed by her questioning the legality of her nikah. A criminal case was also got registered against the deceased for forgoing nikahnama with Mst. Shamim Mai.
' On the night of 25th April, 1980 the deceased was sleeping in front of his shop at 3-30 a. m. His brothers Zahoor Ahmad P. W. 7 and Rab Nawaz P. W. 8 and their guest Rajab Ali P. W. 9, who were sleeping in the courtyard of their house woke up on the alarm of the deceased. They rushed to the spot and saw the appellant and acquitted accused armed with hatchet and sotas encircling the cost of the deceased. The appellant inflicted a hatchet blow on the right side of the head of the deceased. On the lalkara raised by the P. Ws. The appellant and his companions fled away. The deceased expired there and then. Zahoor Ahmad P. W. 7 left for P. S. Kabirwala, District Multan where he lodged the F. I. R. Exh. P.
0. With Raja Muhammad Basharat S.-I. P. W. 11 in the easly hours of the said morning.
3. After recording the F. I. R. The S.-I. Reached the spot and prepared the inquest report Exh. P. C. And injury statement Exh. P. D. Of the deceased. He took into possession blood-stained earth and other articles from the spot. He got prepared the site plan Exh. P. F. And Exh. P. F./1 and arrested the accused. On 12th May, 1980 the appellant led to the recovery of blood-stained hatchet P. 5 from his khokha through memo. Exh. P. E. Attested by Ahmad Nawaz P. W.
5. The hatchet was sent for Chemical Examination and was found to be stained with human blood, vide Serologist's report Exh. P. M.
4. Dr. M. A. Rafi P. W. 4 performed the post-mortem examination on the dead body of Muhammad Hussain deceased on 25th April, 1980 at 12 Noon and found the following injury thereon :- "An incised wound 6i" X 2" x brain cutting deep on the right side of head from the outer margin of the right orbit to the back of the right parietal region, longitudinal in direction. The right eye-brow, frontal parietal bone were cut through."
' The death occurred due to brain injury which was fatal. It was ante-mortem, caused by a sharp- edged weapon. The time between injury and death was sudden and that between death and post- mortem examination about 8 hours. The stomach was empty. Small intestines contained food material while the bladder contained 4 ozs. Of urine. Exh. P. B. Is the post-mortem report and Exh. P.
B./1 is diagram of the injury.
5. The appellant and his companions pleaded not guilty to the charge and denied the prosecution allegations. The appellant stated that nikahnama pertaining to deceased and his sister was forged and a criminal case was got registered at P. S. Kabirwala against the deceased and another which was still pending. He denied that his sister had eloped with the deceased and stated that he had filed a suit for dissolution of marriage against Muhammad Hussain deceased questioning the validity of the nikahnama dated 28th June, 1979. He stated that Zahoor complainant had filed an application Exh. D. D. Before the D. I.-G. P. S. Multan exonerating him and his co-accused and that he had also filed a writ against the S. H.
0. P. S. Kabirwala exculpating them. He produced copy of Writ Petition No, 5771/80 Exh. D. F. And copy of the order Exh. D. G. Passed thereon on 27th May, 1980 by the Lahore High Court. He did not call any oral evidence in defence.
6. At the trial, Zahoor Ahmad P. W. 7, Rabnawaz P. W. 8 and Rajab Ali P. W. 9 appeared as eye- witnesses. Ahmad Nawaz P. W. 5 testified to the recovery of blood-stained hatchet P. 5 at the instance of the appellant.
' Rajab Ali P. W. 9 stated that on the fateful night be had gone to village Mohripur and on his return met Zahoor Ahmad P. W. On the way. On his invitation he had stayed at his house for the night. The other two eye-witnesses are real brothers of the deceased. According to them they were sleeping in their house while the deceased was sleeping in front of his shop and that they came to the street on hearing the alarm and saw Pehlwan and Ghulam Hussain acquitted accused holding the deceased from his legs while the appellant inflicted a hatchet blow on his head which proved fatal.
7. The learned trial Court, relying on the motive, the ocular and the medical evidence, convicted and sentenced the appellant as stated above. The recovery of hatchet was disbelieved on the ground that Ahmad Nawaz P. W. 5 was a stock witness and that the prosecution had failed to produce any witness from the locality. The other accused were, however, given the benefit of doubt and acquitted.
8. Learned counsel for the appellant- contends that the prosecution has miserably failed to connect the appellant with the crime, that the ocular evidence is interested, discrepant and the motive improbable.
9. Admittedly the eye-witness have been disbelieved qua the other accused and believed against the appellant only. Excepting their evidence, there is no other circumstance on which the conviction of the appellant has been based.
' We have, therefore, to see as to whether the eye-witnesses are impartial and the account given by them of the occurrence is worthy of belief. Rajab Ali P. W. 9 is not a resident of the village where the occurrence had taken place. According to Zahoor Ahmad P. W. 7 he was a resident of Nawa Shahr, Kabirwala which is about 7 miles away from the spot. He admitted that Rajab Ali had never stayed in their house previous to his stay on the night of occurrence. He further admitted that a pacca road passed at a distance of about two furlongs from his house leading to Kabirwala on which buses ply round the clock.
10. As regards the inimical disposition of the eye-witnesses towards the appellant, the learned counsel for the appellant has referred to the cross-examination of Zahoor P. W. 7 wherein he admitted that prior to the occurrence both the parties were proceeded against under section 107/ 151, Cr. P. C. According to him despite the compromise they had been apprehending danger at the hands of the accused because they had been holding out threats to them. According to Rabnawaz P. W. 8 it was a dark night and that he had identified the voice of Pehlwan accused without any difficulty. According to Zahoor Ahmad P. W. They were sleeping at a distance of 20 Karams from the place of occurrence and on hearing the alarm rushed to the spot. Rabnawaz stated that the acquitted accused namely Ghulam Hussain and Pehlwan had caught hold of the legs of the deceased with one hand while holding sticks in the other hands. Rab Nawaz P. W. 8 further admitted that they were challaned for forging nikahnama between the deceased and Mst.
Shamim Mai and the said case was still pending when this occurrence took place. Rajab Ali P. W. 9 stated that there was a little light when the occurrence took place because the night was dark and that they had identified the accused in that light and not by their voices alone.
10. Zahoor Ahmad P. W. 7 was asked in the cross-examination as to whether the application Exh. D.
D. Addressed to the D.
1.-G., Multan for a fresh investigation and arresting the real culprit bore his thumb-impression. He could not deny or affirm it. A reference to Writ Petition No, 5771/80 filed by Zahoor Ahmad against Raja Muhammad Basharat S. H.
0., P. S. Kabirwala in the Lahore High Court will also not be out of place here. Zahoor Ahmad had stated in the said petition that Raja Muhammad Basharat S. H.
0. P. S. Kabirwala had registered a false case against Muhammad Hussain appellant, Pehlwan and Ghulam Hussain by letting off the real culprits. According to him he had raised suspicion against Muhammad Nawaz son of Khan Baig, Allah Ditta and Khuda Bakhsh sons of Nawab and Ghulam Ahmad son of Noor Muhammad,but the S. H.
0. Recorded something different and got his thumb-impression on some papers and he was not informed as to what had been written thereon nor was a copy or the same supplied to him. The said writ petition was disposed of by Mr. Justice Shamim Hussain Kadri, Actg. C. J. (as he then was) on 27th May, 1980 with the following order :- "The petitioner complains that a case has been registered against certain persons about the murder of his brother. He submits that the original culprits are not being dealt with.
' Mr. Tanvir Ahmad Khan, Assistant Advocate-General is present in Court. He shall direct the respondent to act in accordance with law during the investigation of the case. The writ petition is disposed of."
12. Zahoor Ahmad complainant denied having instructed Mr. Zafar Yasin, Advocate, for filing the above writ petition in the Lahore High Court. It does not appeal to reason that the accused or any other person acting on their behalf would get the said writ petition filed for damaging the prosecution case.
13. There is sufficient material available on the record to suggest that the complainant party might have involved the appellant falsely because of his initiating civil as well as criminal litigation against them over the preparation of nikahnama between the deceased and Mst. Shamim Mai sister of the appellant. Zahoor Ahmad P. W. 7 admitted that the accused party had got cases of forgery registered at P. S. Kabirwala against him, Rabnawaz and Muhammad Hussain deceased and that they were challaned in the said cases. He further stated that Mst. Shamim Mai had contracted marriage with the deceased and their she was restored to the accused through punchayat and further that the suit for dissolution of marriage filed against the deceased was pending at the time of the occurrence. Rabnawaz P. W. 8 stated differently. According to him Mst.
Shamim Mai had never eloped with the deceased nor had she ever come to live with him and that they had never concealed her nikah with the deceased. It is not understandable as to why Mst.
Shamim Mai should file a suit challenging the genuineness of her nikah, had she willingly contracted the same. The complainant party has not denied the filing of the suit by Mst. Shamim Mai as also the initiation of criminal proceeding against them in respect of the forged nature of nikah. As already stated above Zahoor Ahmad P. W. 7 has admitted in the course of cross- examination that both the parties had initiated proceedings under section 107/151, Cr. P. C. Against each other. The learned trial Court had acquitted the co-accused because the P. Ws. Were found to have made improvements in attributing the part to them. Initially the prosecution case was that they were encircling the cot of the deceased but at the trial they stated that they held the deceased by his legs. The recovery of hatchet from the appellant has been disbelieved by the trial Court.
14. In these circumstances, there is no independent circumstance to corroborate the ocular testimony which comprises of interested, inimical and chance witnesses. The occurrence admittedly having taken place in a dark night, the possibility of the complainant party making mistake about the identity of the assailant cannot be ruled out.
15. For the foregoing reasons the prosecution case is not free from doubt and the appellant is entitled to acquittal. Accordingly, we accept his appeal, set aside his conviction and sentence and acquit him of the charge. He shall be set at liberty forthwith if not required in any other case.
' The death sentence is not confirmed.