' GULBAZ KHAN, J.--Said Ahmed, Rafaqat and Muhammad appellants were tried alongwith Akbar and Muhammad Riaz for offences under sections 148, P.P.C. and 302/149, P.P.C., for committing the murders of Hayat Muhammad, Meharban and Qurban, by the learned Additional Sessions Judge, Rawalpindi, who vide judgment, dated 29-5-1980 acquitted Akbar and Muhammad Riaz but convicted Said Ahmad, Muhammad Rafaqat and Muhammad appellants under section 302/34, P.P.C. Said Ahmad and Rafaqat were sentenced to death and a fine of rupees five thousand each or in default in payment of fire to undergo R.I. for two yeaRs, Muhammad appellant was sentenced to imprisonment for life and a fine of rupees five thousand or in default to undergo R.I. for two yeaRs, The fine, if realized, was ordered to be paid to the legal heirs of the deceased in equal shares. The appeal filed by Said Ahmad, Muhammad Rafaqat and Muhammad, the murder reference and the revision petition filed by Ali Muhammad are being disposed of by this judgment.
2. On the night between 2/3-7-1978, at about Isha time, Hayat Muhammad deceased and his brother All Muhammad complainant were present in front of their courtyard situated in village Mera Akkoo, two miles from Police Station Golra Sharif. Noor Illahi (father of said Ahmad appellant), Muhammad appellant and his brother Akbar acquitted accused came there, Noor Illahi complained to Hayat deceased and Ali Muhammad complainant that their nephew Muhammad Saeed son of Gulzaman had made advances towards his daughter Mst. Abida. Noor Illahi told them that they would be responsible for the consequences, if Muhammad Saeed was not checked.
Hayat Muhammad deceased assured Noor Illahi that he would teach lesson to Muhammad Saeed but the aforesaid three persons were not satisfied and they left grumbling. Shortly thereafter, it started drizzling. Hayat Muhammad deceased and Ali Muhammad complainant entered the Kotha of Hayat Muhammad deceased and slept in that Kotha. A lantern was lit, in the window. At about mid-night, Ali Muhammad complainant woke up on hearing the noise of the cattle. He saw Said Ahmad and Rafaqat appellants standing towards the leg side of the cot of Hayat Muhammad deceased armed with guns. Two shots were fired at Hayat Muhammad deceased, which hit him on the chest and head. Muhammad Ashraf (P.W .8) and Noor Muhammad (not produced who also lived in the same courtyard), reached the spot. Akbar, Riaz acquitted accused and Muhammad appellant remained in the courtyard. Akbar was armed with 7 mm rifle while Muhammad appellant and Riaz accused had hatchets. After the occurrence, the appellants and the acquitted accused left the spot. They headed towards Railway Station Golra Sharif. Relatives of Ali Muhammad complainant lived at a Dhoke near Railway Station Golra Sharif. The complainant apprehending danger to the lives of his relatives, left for the Dhoke. When he was at some distance, he heard reports of fire shots. On reaching near the house of Meharban deceased, he came across Nazeer (P.W.10) and Mst. Aksar Jan (P.W.11) who informed him that Said Ahmad, Rafaqat and Muhammad appellants, Akbar and Riaz acquitted accused, who were armed with firearms and hatchets, had murdered Meharban in the courtyard of his house and Qurban in the Verandah of the shops cf Pir.
Leaving Noor Muhammad with the dead body of Hayat Muhammad and Nazeer with the dead bodies of Meharban and Qurban, Ali Muhammad complainant reached Police Station Golra Sharif, at 3.00 a.m. and lodged the F.I.R. Exh.P.H., which was recorded by Riaz Hussain Shah Muharrir (P.W.5).
3. Nasrullah Khan A.S.I. (P.W.12) was attached to Police Post Pir Wadhai. He was present at G.T.Road for patrolling, on the night between 2/3-7-78. He received copy of the F.I.R. He reached village Mera Akkoo and prepared inquest report of Hayat Muhammad deceased. He took into possession two empties P.27 and P.28 from near the cost of Hayat 'Muhammad deceased and sealed them into a parcel. He took into possession a blood-stained mud from the cot of Hayat Muhammad deceased and sealed it into a parcel. He prepared memo. in respect of the lantern which was stated to be lit in the house of Hayat Muhammad deceased at the time of occurrence. The A.S.-I. then reached the place of murders of Meharban and Qurban. He prepared the inquest reports of said two deceased.
He collected two empties P.22 and P.23 from near the cost of Meharban deceased and sealed them into a parcel. He took into possession lantern which was stated to be lit at the house of Meharban deceased. He took into possession blood-stained earth from the place of murder of Meharban and sealed it into a parcel. He also collected bloodstained earth from the place of murder of Qurban and sealed it into a parcel. He recovered empty cartridge P.25 from near the cost of Qurban deceased and sealed it into a parcel. The A.S.I. took into possession the clothes of the three deceased. He also took into possession the cost of Meharban deceased, blood-stained Chadar, blood-stained pillow and blood-stained quilt of Hayat Muhammad deceased.
' Lal Hussain, S.H.O. Police Station Golra Sharif took over the investigation of this case from Nasrullah Khan, A.S.-I. He arrested the appellants and the acquitted accused on 5-4-1978. He recovered blood-stained hatchet P.13 from Riaz accused, on 13-7-1978. lie recovered blood-stained hatchet P.14 from Muhammad appellant. He recovered gun P.15 from Said Ahmad appellant and 7 rrm rifle P.21 from Akbar acquitted accused. He added notes in red ink on the site plan. He submitted challan against the accused.
4. Dr.Mubarik Ali Shahid conducted post-mortem examination or the dead body of Meharban, on 3-7-1978 at 2.00 p.m. and found the following injuries:-
(1) Lacerated wound with margin blackened on the left index and middle finger dorsal surface. The wound was 3" x 3".
(2) Lacerated punched in wound of entry 3" x 24" going deep on left chest front.
' In the opinion of doctor, the injuries had been caused with fire-arm. Injury No,2 was sufficient to cause death in the ordinary course of nature. Death was on account of shock and hemorrhage.
Time between injuries and death was a few minutes and between death and post-mortem about half a day.
' On the same day at 3.30 p.m., the same doctor conducted autopsy on the dead body of Qurban and found the following injuries:-
(1) Lacerated punched in wound of entry 2" x 1" on right position.
(2) Lacerated punched in wound of entry 14" x 1" on right back of head.
(3) A lacerated punched out wound of exit on left parietal region of head. The wound was 4" x 1" placed anterior-posteriorly. Brain matter was seen coming out of it.
(4) Lacerated punched out wound of exit on right nastily region of head. The wound was placed vertically oblique. Brain matter was coming out through it.
(5) Incised wound 3" x 1" or right lateral part of shoulder. The wound was placed anterior-posteriorly.
(6) Abrasion 10 cm x 0.5 cm on the right aspect of right upper arm placed almost vertically.
' Injuries Nos. 1 to 4 were the result of fire-arm while No,5 had been caused with sharp-edged weapon and No,6 with blunt weapon. Injuries Nos. 1 to 4 were sufficient to cause death in the ordinary. course of nature. The death had occurred due to destruction of brain. The time between injuries and death was immediate and between death and post-mortem about half a day.
' On the same day at 5.00 p.m. the same doctor conducted post mortem examination on the dead body of Hayat Muhammad and found the following injuries on his person:-
(1) Lacerated punched in wound of entry 11" x 11" x going deep on left chest front. The wound was 2" from the left nipple and at 7 o'clock position. There was blackening around the wound.
(2) Lacerated punched in wound of entry 11" x 11" or the anterior part of left pterion. The wound was going deep, into the skull.
' In the opinion of the doctor, both the injuries had been inflicted by fire arm and were individually sufficient to cause death in the ordinary course of nature. Death had occurred due to shock and hemorrhage. Time between injuries and death was immediate and between death and post- mortem half a day.
5. Ali Muhammad complainant (P.W.7) and Muhammad Ashraf (P.W.8) were examined as eye- witnesses with respect to the murder of Hayat Muhammad deceased, while Mian Khan alias Khana (P.W.9) Muhammad Nazeer (P W.10) and Mst. Aksar Jan (P.W.11) were examined as eye witnesses regarding the murders of Meharban and Qurban which had taken place at Dhoke near Railway Station Golra Sharif. Noor Muhammad who had witnessed the murder of Hayat Muhammad deceased and Mst. Kaneez which had witnessed the murders of Meharban and Qurban were given up as unnecessary. Ali Muhammad complainant had also deposed about the motive of this case, Mansab (P.W.6) had attested memos. with regard to the recoveries of blood-stained hatchet P.13 from Riaz acquitted accused, blood-stained hatchet P.14 from Muhammad appellant, 12 bore gun and eight live cartridges from Said Ahmad appellant, rifle 7 mm bore, five live cartridges and a licence from Akbar acquitted accused. Nasrullah Khan A.S.-l. (P.W.12) and Lal Hussain S.H.O. (P.W.13) had supported the investigation. The doctor Mubarik All Shahid who had conducted autopsy, on the three dead bodies was examined as P.W.1. Rest were the formal witnesses.
6. The appellants denied the prosecution allegation and attributed the case to enmity. Said Ahmad appellant had produced written statement marked "A". No witness was examined in defence.
7. The learned counsel for the appellants submitted that the murder of Hayat Muhammad had been committed at Mera Akkoo whereas Meharban and Qurban were done to death at their Dhoke situated near Railway station Golra Sharif and the distance between two places was more than two miles and thus one charge could not be framed for the three murders and there should have been separate trials. It is provided under section 233, Cr.P.C. that for every distinct offence of which any person is accused there shall be separate charge, and every such charge shall be tried separately except in the cases mentioned in sections 234, 235, 236 and 239. The learned Additional Sessions Judge should have framed separate charge for each murder. He had framed only one A charge for the three murders but he did not commit any illegality. The accused had sufficient knowledge that they were facing trial for the three murdeRs, The present case was covered under the provisions of sections 235 and 239, Cr.P.C. as offences had been committed in the course of the same transaction. The legal objection raised was without any force.
8. It was contended by the learned counsel for the appellants that the prosecution failed to prove link amongst the two sets of accused; that the prosecution was unable to prove motive; that the eye witnesses were closely related to the deceased; that the F I.R. had been recorded at the spot after preliminary investigation; that the eye-witnesses except Mst. Aksar Jan were chance witnesses; that the lanterns had been shown for the purpose of identification; that the statements of eye witnesses were contradicted by the medical evidence; that the gun recovered from Said Ahmad appellant did not match with the empties recovered from the spot that the eye-witnesses materially contradicted each other; that name of Mian Khan P.W. was not mentioned in the F.I.R.; that the learned Additional Sessions Judge rejected the statements of the eye-witnesses qua Muhammad Akbar and Muhammad Riaz and hence their statements could not be accepted against the remaining accused without independent corroboration; that there was no corroboration against the appellants; that the recovery of blood stained hatchet from Muhammad appellant did not stand proved; that the prosecution was unable to show that hatchet recovered at the instance of Muhammad appellant was stained with blood.
9. The learned counsel fog' the State argued that the statements of the eye-witnesses could not be rejected on the ground of relationship; that the presence of the two eye-witnesses namely, Ali Muhammad and Aksar Jan was quite natural and being the inmates of the house they were present and had witnessed the occurrence; that the case was promptly registered at the Police Station and there was no time for deliberation and concoction of a false version; that the statements of the eye-witnesses were fully corroborated by the medical evidence; that the presence of the lantern at the spot was not unnatural; that the motive stood proved through evidence furnished by All Muhammad complainant.
10. Hayat Muhammad deceased was a brother of Ali Muhammad complainant (P.W.7), Muhammad Nazeer (P.W.10), Noor Muhammad (not produced), Mst. Zeenat wife of Muhammad Ashraf (P.W.8) and Gulzaman. He was father of Mian Khan (P.W.9), Meharban deceased and Qurban deceased were brothers inter se. The sister Mst. Kaneez was married to Muhammad Nazeer P.W. Meharban deceased was married to the daughter of Noor Muhammad P.W. named Mst. Aksar Jan, All Muhammad complainant who had witnessed the murder of Hayat Muhammad was a real brother of the said deceased while the other eye-witness, named, Muhammad Ashraf was married to the sister of Hayat Muhammad deceased. The third eye-witness Noor Muhammad was a real brother of Hayat Muhammad deceased but Noor Muhammad was not examined in Court. Mst.
Aksar Jan, Muhammad Nazeer and Mian Khan were examined as eye-witnesses in respect of the murders of Meharban and Qurban, which had taken place at their Dhoke. Mst. Aksar Jan, daughter of Noor Muhammad P.W. was a widow of Meharban deceased. Muhammad Nazeer P.W was married to Mst. Kaneez, a sister of Meharban deceased. All these relationships had been admitted on the record. It would show that all the eye-witnesses examined in this case were closely related to the deceased. There was nothing on the record to indicate the relationship of the accused inter se. The only fact brought on record was that Muhammad appellant and Muhammad Akbar acquitted accused were sons of Ahmad while Muhammad Riaz acquitted accused was son of Muhammad Akbar. The relationship of the other accused had not been brought on the record.
Hence the evidence of motive was only available against Said Ahmad appellant.
11. All Muhammad complainants (P.W.7) was the only witness, who had deposed about the motive of this case. It was stated by him that Noor Illahi (father of Said Ahmad appellant), Muhammad appellant and Akbar acquitted accused had come to his house where Noor Illahi complained that Saeed son of Gulzaman had made advances towards his daughter Mst. Abida. If this had been the motive for the commission of the murder then the same motive was available against all the eye - witnesses and the accused would not have spared them. It was frankly conceded by Mian Khan and Muhammad Nazeer that had the accused known about their presence they would have killed them. Saeed son of Gulzaman was alleged to have teased Mst. Abida. Said Ahmad appellant could have motive against Saeed who lived in the same Haveli along with his father Gulzaman, where Hayat deceased and Ali Muhammad complainant lived. In the ordinary course of events, Noor llahi should have lodged protest with Gulzaman and not with Hayat Muhammad deceased and All Muhammad complainant. Saeed or his father would have been the first target but no harm was caused to them. All Muhammad stated that Noor Illahi, Akbar and Muhammad had come to his house at Ishawela and lodged protest with him and Hayat Muhammad deceased when they were present in the common courtyard. His statement stood belied by Muhammad Ashraf P.W.8 who stated that he remained in the courtyard of Noor Muhammad, which was a common courtyard, till he went to sleep at 10.00 or 10.30 p.m and during the period none came in the courtyard except the residents of the house of the Haveli. He further stated that All Muhammad complainant kept sitting with him from evening prayer time till 9.00 p.m. It stood established from the statement of Muhammad Ashraf that from sunset time till 9.00 p.m. Ali Muhammad complainant kept sitting with him. His statement further showed that after 9.00 p.m. till he went to bed at 10.00 or 10.30 p.m. none came in that courtyard. He materially contradicted the statement of All Muhammad complainant with regard to motive. All these circumstances led us to believe that the prosecution had set up a false motive in this case, All Muhammad complainant stated that he went to Police Station Golra Sharif and lodged the F.I.R. Muhammad Ashraf deposed that police came to the spot at 3.00 a.m.; that first of all police recorded the report of Ali Muhammad at the spot which was read out to him and his thumb impression was obtained. It was clear from the statement of Muhammad Ashraf that the statement of All Muhammad was recorded by the police at the spot and his thumb-impression obtained thereon. In view of this evidence we hold that the case had been registered after preliminary investigation. Nasrullah Khan A.S.-1. stated that he first reached the place of murder of Hayat Muhammad and then visited the places where the other two murders had been committed. It was challenged by the defence and according to defence version the police had first visited the places of murders of Qurban and Meharban. Our attention was drawn to the statement of Mubashar Hussain F.C. (P.W.3) wherein he stated that he accompanied by Nasrullah Khan A.S.-I and Izzat All F.C. proceeded to the place of murder of Meharban deceased and remained there for three/four houRs, It was further admitted by Mubashar Hussain F.C. that Riaz Hussain Shah Muharrir of Police Station GoIra Sherif was present at the place of murder of Meharban before they arrived. The said Constable stated that he left with the dead bodies of Meharban and Qurban at about noon time and Nasrullah Khan A.S. I. had left for the place of murder of Hayat Muhammad about half an hour prior to his departure. The inquest reports of Meharban and Qurban did not contain the number of the F.I.R. whereas the inquest report of Hayat Muhammad did contain the number. In the presence of this evidence we agree with the learned counsel for the appellants that the inquest reports of Meharban and Qurban were prepared prior to the inquest report of Hayat Muhammad. The absence of number of the F.I.R. on the inquest reports of Meharban and Qurban indicated that the case had been registered subsequent to the despatch of the dead bodies to the mortuary.
12. Hayat Muhammad deceased, Ali Muhammad complainant, Noor Muhammad P.W. (not produced), Gulzaman (father of Saeed) had a common courtyard. Kotha of All Muhammad complainant was contiguous to the Kotha of Hayat Muhammad deceased. Hayat Muhammad deceased had a son, named, 'Mien Khan and daughter-in-law, while Ali Muhammad complainant had two sons, one daughter and a wife who lived with him. It was admitted by All Muhammad complainant that his family was in his room while the family of the deceased was in the room of the deceased. This admission was clearly against the prosecution version as according to the prosecution version, Hayat Muhammad deceased and All Muhammad complainant were sleeping in the room where Hayat Muhammad was done to death. The complainant failed to give reason as to why he was sleeping in the room of Hayat Muhammad deceased. In the ordinary course of events the complainant would have slept in his room along with the other family membeRs, From these circumstances we get an indication that All Muhammad complainant was not sleeping in the room of Hayat Muhammad deceased and he had shown his presence there in order to become an eye-witness. The other eye-witness named Muhammad Ashraf (P.W.8) was a chance witness. He had a house at a distance of fifty/sixty yards. He gave explanation about his presence in the court-yard of Noor Muhammad by stating that he had gone there in connection with the ailment of the grand-daughter of Noor Muhammad and as it had become late he was asked by Noor Muhammad to stay there. This explanation was neither satisfactory nor convincing. He had gone to the house of Noor Muhammad after evening prayer. He could conveniently leave the house of Noor Muhammad after an hour or so. Even if it had become late, he could go to his house as it was situated hardly at distance of fifty/sixty yards. We are not satisfied about the presence of Muhammad Ashraf P.W. in the courtyard of Noor Muhammad at the time of occurrence. All Muhammad complainant had made improvement with regard to the first two shots. He had not mentioned in the F.I.R., that Said Ahmad and Rafaqat had fired one shot each at Hayat Muhammad deceased. His position in the F.I.R., was that two shots were fired one after the other within his view.
It was an improvement on the F.I.R. Lantern had been introduced for the purpose of identification. It was not a moonlit night. The complainant mentioned in the F.I.R. that the lantern was hanging against the window and it was lit at the time of occurrence. Same was his position when he made statement. Muhammad Ashraf made similar statement. He also deposed that the lantern was hanging on the window. The complainant and Muhammad Ashraf were contradicted by Nasrullah Khan A.S.-I., who stated that no lantern was hanging on the window inside the room of Hayat Muhammad deceased. He had however, taken into possession a lantern and prepared memo Exh.P.K. It was simply mentioned in the recovery memo. that a lantern was taken into possession from the house of Hayat Muhammad deceased and it was stated to be lit at the time of occurrence. It is a matter of common observation that people do not keep the lantern lit during night time. The lantern was introduced for the purpose of identification. The two empties had been recovered from near the cot of Hayat Muhammad deceased. The prosecution failed to adduce evidence to the effect that the two empties had been fired from different weapons. A gun had been recovered from Said Ahmad appellant but no report of Fire-arms Expert was tendered in Court. The only inference which could be drawn was that the report was not in favour of the prosecution. For the foregoing reasons, we hold that Ali Muhammad complainant and Muhammad Ashraf had not witnessed the occurrence of murder of Hayat Muhammad.
13. The second occurrence in respect of the murders of Meharban and Qurban was witnesssed by Mian Khan alias Khana (P.W.9), Muhammad Nazeer (P.W.10), Mst. Aksar Jan (P.W.11) and Mst. Kaneez (not produced). Mian Khan (P.W.9) stated that he was present in the Verandah of his shop along with Nazeer. He further stated that Qurban deceased was sleeping in the Verandah of PiRs, He had given his profession as hotelier at Railway-Station Golra Sharif. During cross-examination he stated that his hotel was contiguous to the shop of Aslam. A glance at the site plan would indicate that this witness was not sleeping in front of his hotel but was sleeping in front of the shop of Fazal Ilahi.
Mian Khan P.W. was not mentioned as an eye-witness in the F.I.R. nor his name figured anywhere in the inquest reports. Statement of Muhammad Nazeer (P.W.10) proved that Mian Khan resided in the Abadi where his father Hayat Muhammad deceased lived. He was introduced as an eye-witness at subsequent stage of the investigation.
' Muhammad Nazeer P.W. was a brother of Hayat Muhammad deceased and resident of Mera Akkoo. He was a chance witness. He stated that he had returned late after selling the milk and for that reason he stayed in the house of his in-laws. The statements of Mian Khan and Muhammad Nazeer were discrepant. The former stated that Muhammad Nazeer had met him at Rawalpindi and Nazeer had gone to the spot earlier to his arrival there but Muhammad Nazeer stated that he was accompanied by Mian Khan from his village. The statement of Mian Khan and Muhammad Nazeer stood contradicted by the medical evidence Both these witnesses stated that Muhammad and Muhammad Riaz inflicted hatchet blows to Qurban deceased. Their position before the police was that Muhammad and Muhammad Riaz accused had inflicted hatchet blows to Qurban deceased one after the other. (l'ai-Dar-Pai). According to medical evidence, Qurban deceased had one injury with sharp-edged weapon. Since both the witnesses were not present at the time of occurrence they could not give the correct version of the occurrence. In view of the above discussion, we hold that Mian Khan and Muhammad Nazeer were not present at the spot.
' Mst.Aksar Jan was a natural witness but she had not given the true account of the occurrence and toed the line of the complainant. She was sleeping in the courtyard along with her husband Meharban deceased. She woke up on hearing the fire shots. She had not seen any accused firing shots at Meharban deceased. The said deceased had two fire-arm injuries. The doctor stated in cross-examination that if the deceased was sleeping or lying with his left hand on his chest, injuries Nos.1 and 2 could be possible with one shot. She stated that when she woke up, she saw Said Ahmad and Rafaqat armed with 12 bore guns, and Akbar with rifle near the cot of deceased while Riaz and Muhammad were on the roof armed with hatchets. She further stated that Said Ahmad, Rafaqat and Akbar left for the house of Qurban and she along with Mst. Kaneez followed them; that Said fired shot which hit Qurban deceased on the right ear: that Qurban was sleeping at his shop; that Muhammad and Riaz inflicted hatchet blows to Qurban; that Rafaqat fired a shot which hit Qurban at back side of head. This was in conflict with the evidence of Mian Khan and Muhammad Nazeer, according to whom, Qurban was first inflicted hatchet blows and then fired at by Said Ahmad and Rafaqat. The statement of Mst. Aksar Jan was contradicted by medical evidence. She admitted in cross-examination that she did state before the police that Qurban deceased had received injuries in quick succession. Qurban deceased had only one injury with sharp-edged weapon. Thus Mst. Aksar Jan stood contradicted by the medical evidence. Mst. hksar Jan stated that the lamp was lit at the time of occurrence. The investigation conducted by Nasrullah A.S.-I. was not honest. Copies of police statements of Mien Khan Exh.D.D, Muhammad Nazeer Exh.D.E. and Mst. Aksar Jan D.E. were supplied to the accused. They contained narration that lantern was taken into possession. It was the last sentence in the statements. At the request of the counsel, the trial Court examined the original file and it was found that this last sentence was not mentioned in the statements of the said three witnesses on the original file. This last sentence about the possession of the lantern was a fabrication and the lantern had been introduced only to make the identification possible. Since the witnesses had not seen the occurrence, the details of the injuries of Meharban and Qurban had not been given and it was simply recorded therein that Rafaqat, Said Ahmad, Akbar, Muhammad and Riaz caused injuries to Meharban and Qurban with fire-arms and hatchets. Akbar and Riaz had been acquitted. Akbar was stated to be armed with rifle. None of the deceased had any injury with rifle. No empty of rifle had been recovered from the places of murders of Hayat Muhammad, Meharban and Qurban. Out of all the injuries of the three deceased, only one had been caused to Qurban deceased with sharp-edged weapon. Neither the State filed appeal against the acquittal of Akbar and Riaz, nor the complainant filed revision petition against them. The finding of the trial Court was accepted. The eye-witnesses made false statements in respect of the two acquitted accused. There is an independent corroboration of the statements of the eye-witnesses. Report of the Serologist was not tendered in order to prove that the hatchets recovered from the accused were stained with human blood. The prosecution failed to link the hatchet recovered at the instance of Muhammad appellant with the commission of murder. The recovery of hatchet at the instance of Muhammad was supported by Mansab P.W.6 only, who was also a close relative of Meharban and Qurban deceased. A real sister of the said two deceased was married to the brother of Mansab P.W. It was admitted by Mansab P.W., that at the time of recovery of Muhammad, none from the village came there nor the police summoned any person from the adjoining houses. The recoveries made at the instance of the accused did not advance the case of the prosecution.
14. For the foregoing reasons, we hold that the occurrence had taken place during the darkness of the night; that Ali Muhammad, Muhammad Ashraf, Mien Khan, and Muhammad Nazeer were not present at the time of murders, that Mst. Aksar Jan had not made a correct statement and her statement was contradicted by medical evidence; that the report was recorded at the spot after preliminary investigation, that the motive in this case was shrouded with, mystery.
' As a result of the above findings, we accept this appeal, set aside the impugned judgment and acquit Said Ahmad, Rafaqat and Muhammad appellants of the charges. They shall be set free forthwith, if not required in any other case.
' The death sentences of Said Ahmad and Rafaqat are not confirmed.
' The revision petition filed by Ali Muhammad is dismissed.
' Suo motu notices issued on 20-11-1983 to the appellants are recalled.