BASHIRUDDIN AHMAD, J.-Five persons, namely, Sultan alias Sullah (46), Shahmand (31), Gami (29), Farid (33) and Muhammad (31) were tried on charges under sections 148 and 302/149, P. P. C. By the Additional Sessions Judge, Lyallpur at Jhang, who .Acquitted Muhammad of both the charges.
The result was that the charge under section 148, P. P. C. Against the rest also fell through. He convicted Sultan alias Sullah, Shahmand, Gami and Farid under section 302 of the Pakistan Penal Code. Sultan, Gami and Shahmand were sentenced to suffer death. Farid was awarded the lesser punishment provided under section 302, P. P.C. And was sentenced to transportation for life.
2. The convicted persons have appealed and the case of Sultan, Gami and Shahmand is also before us on reference under section 374, Cr. P. Code for confirmation of sentence of death. This judgment will dispose of the appeal as well as the reference.
3. Farid and Muhammad are real brothers. They are Naul by caste and are the residents of village Habib. Gami and Shahmand are brothers and Sultan is their real paternal-uncle. They are Mochis and belong to village Thatha Mustafa, District Jhang.
4. Fifteen or sixteen years before the present occurrence, Hayat, a maternal-uncle of Sardool, the deceased person in this case, abducted Mst. Mundan, daughter of Kaura Naul, who was the father's sister's daughter of Farid accused. Mst. Mundan died within a couple of days of her abduction.
5. Ten or eleven years prior to the occurrence under consideration. Farid accused and Allahditta, son of Salehon Naul Murdered Mst. Nuri, the wife of said Khizar Hayat. They were challaned is that connection, but were acquitted. Eight or nine years before the occurrence, which is the subject- matter of this case, Allahditta the father of Farid accused was put to death. In that case, Sardool deceased along with his maternal-uncle Khizar Hayat Rajab, a brother of Sardool and Mahni Naul were challaned, but they got acquitted.
Five or six years before the occurrence, Mst. Nuro, wife of Muhammad Mochi, was abducted by Khizar Hayat. He took her to Chak No. 215 and settled there. Muhammad, the husband of Mst. Nuro and his relatives did their best for the restoration of Mst. Nuro, but Khizar Hayat proved to be adamant with the result that Muhammad Mochi along with his brother Sulla, Shahmand and Gami, his nephews, gave up their residence at village Habib and migrated to village Thatha Mustafa.
5. On 8-3-1967, a little after sunrise, Ahmad had gone to enquire after the health of Sardool, who had in a kabaddi match fractured his collar bone. Sardool was present in the courtyard of his house. Ahmad was still present there when Muhammad Naul visited the shop of Sharif in order to make purchases. Ahmad engaged himself in conversation with Muhammad Naul. Sharif was already present at his shop. Mst. Rani, a niece of Ahmad, was busy with the household work when the appellants together with Muhammad, since acquitted, came there. Farid and Sulla Mere armed with shot guns. Muhammad carried a pear while Shahmand and Gami had hatchets. They attacked Sardool. Farid and Sullah fired at the victim, Shahmand and Gami caused him injuries by means of hatchets, while Muhammad gave him spear injuries, Ahmad and other raised art alarm.
Ahmad son of Hasta and Kha,t reached the spot after the assailants had fled. They saw them running from the spot. Sardool died instantaneously.
6. After the occurrence, Ahmad went to the house of village Chaukidar and asked him to guard the dead body of Sardool. Thereafter, he proceeded to Jhang Saddar Police Station at a distance of six miles from the spot and reaching there at 9-30 a. m. Lodged the report, Exh. P. A. The same day.
7. After scribing the report, S.I. Abdur Rehman (P. W. 16) visited the spot, took into possession blood- stained earth and sealed it into a parcel. He also recovered a .12 bore empty from the spot and made it into a sealed parcel. The S. 1. Prepared the injury-sheet and the inquest report, relating to Sardool, and then despatched the dead body to the mortuary for post-mortem examination.
Ahmad Nawaz (P. W. 7) and Manak (P. W. 8) were associated with the investigation and on March 13, 1967, the investigating officer recovered from Farid a gun, Exh. P. 2, bandolier, Exh. P. 4 and 10 live cartridges, Exhs. P. 3/1-10 at the time of his arrest, which were taken into possession, vide memo.
Exh. P. E. The gun, Exh. P. 2, was sealed into a parcel. Sultan alias Sullah was arrested on March 13, 1967. He was interro--gated. He took the police to the bela of river Chenab and got recovered the gun, Exh. P. 5, from underneath a heap of reeds.
It was taken into possession and sealed into a parcel in the presence of Ahmad Nawaz (P. W. 7) and Ahmad (P. W. 9). Gami and Shahmand were apprehended on 13-3-1967.
8. Dr. Muhammad Hussain (P. W. 1) conducted the autopsy on the dead body of Sardool deceased on March 9, 1967, at 10-30 a.m., and found the following injuries :-
(1) Incised wound 3" x -- " x bone deep, cutting half of the right ear and extending to the right side of the head.
(2) Incised wound 1--"x -- " x bone deep and -- " behind injury No. 1.
(3) Incised wound 1 -- " x -- " x skin deep situated on the left temporal region and 1" away from the left eye.
(4) Incised wound 1" x -- " x. Bone deep on the inner1/3 " of left clavical.
(5) Fire-arm wound 1 --" x 1" passing through and through, situated on the right chest,-- " below the right shoulder.
(6) Three abrasion marks covering in area of 1" x 1" and situated on the front of meek.
(7) Lacerated wound on the inner side of left elbow and was 4 -- " x 2" x bone deep.
(8) Firearm wound 1" x -- " on the left shoulder blade passing through and through.
(9) Abrasion mark -- " x -- " on the back of neck.
(10) Two fire-arm wounds each about -- " in diameter on the right upper back and 1" below the neck.
(11) Abrasion mark 2 -- " x -- " on the left side of chest in the axillary line.
(12) Two fire-arm wounds each about -- " in diameter, on the right back of shoulder.
(13) Abrasion mark -- " x -- " on the inner side of right knee.
(14) Abrasion mark 1" x 1" on the front of left knee.
(15) Abrasion mark -- " x -- " on the lower third of front of left leg.
The cause of death, according to the doctor, was the rupture of both the lungs.
9. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity between the parties. It was asserted that proceedings for the breach of peace had been started against Sardool and his father at the instance of one Akhtar Husain. Explaining the circumstances which led to their implication in the case, the appellants except Farid made the following statement :- "Our masters Saleh Shah and Qalundar Shah are big landlords and very ferocious. They on their own accord have been demanding the hand of Mst. Nuro from Khizar Hayat and all the Nauls including Sardool who were close relations of Khizar Hayat had made up a point of honour that since Mst. Nooran had been married to Khizar Hayat and had a daughter front her as well as a son.
If the daughter who was restored that will be an insult to the entire Nauls tribe. SG grave animosity developed between Nauls and Syed Shah 3ewana who also took it as their personal insult that they had been refusing the hand of Mst. Nooran by Nauls. The Syeds of Shah Jewana are very influential persons. They had been made to join the police investigation and were let off through the intervention of the big people of Shah Jewana, Since the occurrence took place in the early hours of the morning and the deceased along with his mother were the only two persons in the house because there had been some cases of murders between cur family and that of the deceased, so we were roped in, Moreover, two murders had taken place in the area of Police Station Mochiwala and the two F. I. Rs. Are the verbatim copies of each other. These reports were lodged after due consultation "
10. No evidence was produced in defence.
11. At the trial Ahmad (P. W. 9), Mst. Rani (P. W. 11), Sharif (P, W. 12) and Muhammad (P. W. 13) furnished direct evidence. Ahmad is a paternal-uncle of the deceased and on the morning of the fateful day had gone to the house of Sardool to enquire, after his health as the latter had in a kabaddi match fractured his collar bone. Msto Rani is the sister of the deceased, She is married to Dulla. His house is in the same ihata. Sharrif is the brother of the deceased. He has a retail shop in the ihata in which the occurrence took place. Muhammad had gone to by tea from the shop of Sharif. The four of them were present there when the appellants and their co-accused appeared on the scene. Sultan and Farid were armed with guns. Muhammad had a spear, while Shahmand and Gami carried hatchets. Sultan and Farid fired at the deceased, who was hit and fell down.
Muhammad gave a spear injury to Sardool after he had fallen. Shahmand and Game injured the deceased with sharp and blunt sides of their hatchets. Ahmad and others raised an alarm. Khan P.W. 141 and Ahmad (not produced) came to the spot after the assailants had fled. Ahmad and others narrated to them the entire incident and they confirmed that they had seen the assailants running.
12 There has been long-standing enmity between the parties in this case and as such it is not possible to rely on the ocular evidence unless it is corroborated by some independent piece of evidence on the record. The relevant portion of the statement of Ahmad (P.. W. 9) admitting various enmities with the accused is reproduced below for the sake of convenience :- "Mst. Mundan, the father's sister of Farid accused was abducted by Khizar Hayat, the real maternal- uncle of the deceased about 15 or 16 years back. She died 1--months after her abduction. She died when she was with Khizar. Four or five years after this abduction, Khizar Hayat married Mst. Nuran.
Farid accused and Allahditta, his father, murdered Mst. Nuran and were challaned in that case.
They were acquitted. About seven or eight years back, Allahditta, father of Farid accused, was also murdered. In that case, Khizar Hayat, Mahni, Rajab and Sardool deceased were challaned and they were also acquitted. About five or six years ago, the said Khizar Hayat abducted Mst. Nuro, wife of Muhammad Mochi. She is the brother's wife of Sultan accused and the aunt of Shahmand and Gami accused. Khizar Hayat took Mst. Nuro in a Chak in the area of P. S. Mochiwala. Sultan, Shahmand and Gami Mochi and the husband of the woman tried for her return, but Khizar Hayat refused to return her."
It is also in the statement of Ahmad that Mst. Allah Jawai is the sister of Muhammad P. W. She is the wife of Ghulam Farid son of Namdar. Mst. Sakina, the daughter of Mst. Allah Jawai is married to Mahni son of Umar Hayat. The said Mahni is the sister's son of Ahmad P. W., who is married to Mst.
Nooran. She has two sisters. One of her sisters, namely, Niamat is the wife of Sher. The deceased was married to Mst. Mai, a daughter of Sher son of Samail. Mst. Saidan, the daughter of the said Sher is the wife of Muhammad P. W. He is the grand father of Ahmad Nawaz, who is one of the recovery witnesses. Mst. Saban is the mother of Muhammad Ahmad P. W. Is the son of Mst. Bhagan.
He was not in a position to deny that his mother is the sister of Mst. Bhagan.
13. We have it further in the evidence of Ahmad that Mst. Mundan daughter of Kaura was abducted by Khizar. Sher is the son of said Kaura and a sister of Ahmad P.W. Is married to the said Sher, Mst.
Mundan, who was abducted, had been betrothed to Islam, a brother of Ahmad. Sultan, a brother of Ahmad, was put to death. In that case, Khizar Hayat was also challaned. Muhammad son of Salehon was murdered and in his murder case Ahmad P.W. And his brother Pehlwan were challaned. Pehlwan was sentenced to ten years' R. I. Ahmad was awarded a sentence of two years.
Manak, Umar and Ahmad are the three brothers of Muhammad, who was murdered. Raja, Shahadat and Bahadur are the sons of said Manak. Umar has got five sons. Ahmad has got two sons. They are all grown-ups. Mst. Nooran, who was put to death along with Khizar, was the daughter of. Hasta, who belonged to village Korai.
14. Ahmad, according to his own showing cultivated land at Chah Jehanewala, which is less than a mile from village Habib, where the occurrence took place. Ahmad has no male issue. His only daughter is married. Ahmad admitted that he himself cultivated the land, Ahmad deposed that his son-in-law cultivated his land. He denied that he guarded the cattle during the night. It is not believable that the cattle were left unattended at Chah Jehanewala during the night. The possibility about this witness having come to the spot on hearing of the occurrence could not be ruled out. It is not necessary to dilate on the evidence of Mst. Rani and Sharif in view of their close relation-- ship with the deceased and admitted enmity between them and the appellants. The presence of Muhammad (P. W. 13) at the time of the occurrence is not free from doubt. He is married to Mst. Saidan. She is the daughter of Sher. Another daughter of said Sher is the widow of Sardool deceased. Muhammad admitted that Mst. Sakina is his niece. She is the wife of Mahni, who is the sister's son of Ahmad P. W. Muhammad has no land in village Habib. He does not own any house in this village. He stated that he lived in the house of Master Ghulam Farid at Chah Pakewala, which is at a distance of one or two killas from the abadd of village Habib. His parents live at the tube-well of Thaeems. Muhammad is not shown to be a tenant of land atChair Pakewala. He admitted that his name was not entered in the Khasra Girdawari of village Habib. The witness admitted further that he used to live at Chah Baharwala in the area of village Lakhnana, but explained that he lived there prior to his coming to village Habib and taking up residence with Master Ghulam Farid. The witness is married in Kot Lakhanana. In the circumstances, we doubt very much if Muhammad actually lived at village Habib when the present occurrence took place. Even if it be assumed that he lived there, still his presence on the spot at the time of the occurrence is not free from doubt. The reason given by hire for his presence at the shop of Sharif is not borne out from the police statement of either Sharif or Ahmad, They did not say so even in their statements before the Committing Magistrate. Even Mst. Rani (P. W. 11) omitted to mention in her police statement that Muhammad had visited the shop of Sharif in order to purchase some tea when this incident took place.
15. From the above, it is clear that the eye-witnesses and the deceased are closing connected inter se and are also inimical to the appellant. The ocular evidence in order to carry conviction on a capital charge must come from an unimpeachable source. See Thoba v. The State (PLD 1963 SC 40). The trial judge considered Ahmad, Mst. Rani, Sharif and Muhammad to be natural witnesses arid found their corroboration from the testimony of Khan. We now proceed to examine whether it is safe to accept the evidence of Khan in this case. He is a resident of village Patwana, which is half a mile away from village Habib where the occurrence took place. Khan stated that just after sunrise he had gone to the house of Ahmad son of Hasta from whom he had purchased wheat. He heard the reports of two gunshots and ran in that direction. He was still at a distance of 20 or 30 karams from the spot when he came across the assailants. They were shouting that they had avenged the murder of their father. Khan omitted to mention in his statement to the police- that he had purchased wheat from Ahmad son of Hasta. The well on which Khan has his land is at a distance of half a square from the abadf of village Habib. Khan omitted to mention in his statement before the Committing Magistrate that he heard reports of two gunshots. The witness stated, at the trial, that Ahmad and others, who were present at the spot, narrated to him the incident. He did not say so either in his statement before the Police or to the Committing Magistrate. It is also in his statement that he mentioned to them that he had seen the assailants going in the street. Khan did not transport wheat to his house on that day. The witness in cross-examination modified his statement and said that he had borrowed wheat from Ahmad son of Hasta. The prosecution did not examine Ahmad son of Hasta as a witness. Khan was unable to deny that his father and uncle had a fight against Muhammad son of Namdar. He expressed ignorance if Ahmad, father of Shahmand and Gami accused, had appeared as a witness in that case on behalf of the prosecution. The witness also expressed ignorance regarding imprisonment of Ahmad Mochi for six months in the theft case relating to a, bullock belonging to the father of Khan. The witness, however, admitted that Ahmad is the brother of Sultan Mochi. All these circumstances make the presence of Khan on the spot at the time of the alleged occurrence highly doubtful. Therefore, the observation of the trial Judge that the prosecution story receives support from the statement of Khan P. W. Has really no basis for it.
16. As regards recoveries, it may be stated at the very out--set that the trial Judge did not rely on this piece of evidence. We also find that the recoveries in this case cannot be taken as a confirmatory circumstance to corroborate the testimony of the eye-witnesses. 'The existence of the crime empty at the spot was not mentioned in the first information report. The investigating officer did not mention the existence of an empty cartridge at the spot in column No. 23 of the inquest report. The witnesses to the recovery of the empty cartridge, Exh. P. 1, from the spot are Ahmad (P.
W. 9) and Khan (P. W. 14). We have already given our reasons for refusing to accept their evidence.
17. Apart from these considerations, we fired that while the empty cartridge, Exh. P. 1, was recovered from the spot on the 8th March 1967 and the gun, Exh. P. 2, was taken into possession from Farid appellant on the 13th March 1967, still the gun and the empty cartridge were not submitted to the Ballistics Expert promptly. The two sealed parcels remained in the Police Malkhana till March 27, 1967, when they were handed over toF. C. Muhammad Taj, for taking them to the, Ballistics Expert.
The office of the Ballistics Expert mixed up the crime empty, Exh. P. 1 with the crime empties of another case in which Fared appellant was also concerned and although the opinion of the Ballastics Expert is to the effect that crime empty marked as C. 1 been fired from .12 bore S. B. B. L.
Shotgun of Fared appellant, we do not consider it as a sufficiently strong circum--stance to overcome the inherent doubt affecting the evidence, in this case, because the murder of Khizar Hayat took place the previous evening and the gun, Exh. P. 2, of Ghulam Farid was also alleged to have been used by him in that transaction. The possibility of any one of the crime empties recovered in that case having got mixed up with that in the present case could not be ruled out to moral certainty. In words of their Lordships of the Supreme Court in Thoba v. The State evidence on a capital charge must come from an unimpeachable source or if such source be not available, it must be supported by some strong circumstance that might remove inherent doubt attaching the evidence of interested or partisan witnesses. Judged by this test, it cannot be said that the charge against the appellants has been proved beyond any reasonable doubt.
18. There are houses of Hamad, Noor; Ahmad, Murad, Maulvi Muhammad Husain, Allahyar Lambardar, Bulla, Rajah, Barkhurdar, Ahmad Khan retired Patwari, Muhammad son of Lehna, Shahmand, Hassan, Ahmad son of Alawal Muhammad Alyas, Sultan, Sadullah and Lal Patwari, Mst.
Niamat, paternal--aunt of the deceased and the houses of the barbers and Merasis surrounding the place of the occurrence, but the prosecution was unable to produce a single disinterested witness from the locality which speaks for itself.
19. For the above reasons, we consider it highly unsafe to maintain the conviction of the appellants.
We accept the appeal set aside their conviction and sentences and order them to be acquitted.
They are in jail and we direct that they be set at liberty forthwith, if not wanted in any other case.
The death sentences, so far as Sultan, Gami and Shahmand are concerned, are not confirmed.