SHAUKAT ALI, J.-The six appellants, namely, Muhammad Shafi alias Shaft (29), Khalil Ahmad alias Khalil (33), Umar Hayat (24), Abdul Aziz (31), Latif (51) and Khurshid (40/41), have been convicted under sections 302/149 and 148, P. P. C., by the Sessions Judge, Lyallpur Division, Lyallpur. Umar Hayat was sentenced to death under section 302/149, P. P. C. While Muhammad Shafi, Khalil Ahmad, Abdul Aziz, Latif and Khurshid to transportation for life and a fine of Rs. 1,000 each, or in default of payment of fine to undergo further R. I. For one year each. . All the six were sentenced to suffer one year's R. I. Each under section 148, P. P. C. The sentence of imprisonment in the case of Umar Hayat was to take effect only and to run concurrently if his death sentence was not confirmed. The sentences of imprisonment of the remaining five appellants were ordered to run concurrently. Muhammad Sharif, who was tried under section 302/149, P. P. C., was acquitted of the charge. The convicts have appealed against their convictions and sentences and there is usual reference for the confirmation of the sentence of death passed on Umar Hayat. This judgment will dispose of the appeal and the reference.
Khalil Ahmad and Muhammad Shafi are brothers. Umar Hayat is the maternal cousin of Muhammad Shafi and Khalil Ahmad. Muhammad Sharif is uncle of Umar Hayat. Abdul Aziz is their close relation. Khurshid and Latif are in the -employment of Muhammad Shafi, Khalil Ahmad, Umar Hayat and Abdul Aziz.
2. Briefly summarized, the case of the prosecution is this. On the 4th of February 1965, Abdul Ghaffar also known as patanga, who was the husband of the sister of Khalil Ahmad and Muhammad Shafi, was murdered. Ten persons including Sultan Mahmood deceased were arrested in connec--tion with the said murder. Sultan Mahmood was admitted to bail in the course of enquiry proceeding, Muhammad Shafi, Khalil Ahmad, Umar Hayat and Muhammad Sharif, who were related to Abdul Ghaffar were aggrieved by his release on bail. They also suspected that Shamshad deceased had also hand in the murder of Abdul Ghaffar. This, it is alleged motivated the murders Shamshad. The case of the murder Criminal Appeal No. 407 of 1967 tit Murder Reference separately.
3. On the 17th of October 1965, Sultan Mahmood deceased alongwith Ataullah and Barkat Ali, was returning from Chak No. 735/G. B. After spending the whole day, where they had gone for collecting quilts for Kashmir Refugees Tar Efforts, at 5-30 p. m., they are said to have alighted from a bus 'at Kamalia and having alighted they proceeded in the dera of R.I Ghulam Qadir, where the three spent a few minutes with him. Thereafter they resumed the journey towards Kamalia Town. When they reached near the field of Bahawal Khan Kharral, they were surprised by Umar Hayat, Khalil Ahmad, Muhammad Shafi, Abdul Aziz, Latif and Khurshid from behind a kasha wall abutting on the field of Bahawal Khan Kharral. All the six were armed with fire-- arms. Khalil Ahmad is said to have given a lalkara and simultaneously all the six appellants fired at Sultan Mahmood, but was not hit.
Sultan Mahmood then tried to run away, but was given a chase by Umar Hayat. While running Umar Hayat fired at him and he was hit in the back, whereupon he fell down. The occurrence, it is alleged, was witnessed by Ataullah. Barkat Ali, including Umar Din and Khan Muhammad of Chak No. 715/G. B. The accused fired a few shots in the air .And decamped from the scene of crime.
Sultan Mahmood. Was taken to Kamalia Hospital by Ataullah P. W, Before Ataullah P. W., proceeded to lodge the report the dead body of Shamshad, which is the subject-matter of Murder Reference No. 101 of 1967, was brought in the hospital by his brother Jamshed and others, who told Ataullah P.
W. On his enquiry that Shafi, Umar Hayat, Khalil, Latif and Abdul Aziz came together and Muhammad Shafi fired at Shamshad near his house resulting in his death. Ataullah P.. W.
Proceeded to Police Station, Kamalia, which is at a distance of one mile from the place of occurrence and lodged the report Exh. P. A., which was- recorded by Ghulam Muhammad S. H. O.
(P. W. 25), at 7-20 p.m., the same day.
4. Ghulam Muhammad Sub-Inspector, immediately pro--ceeded to Civil Hospital, Kamalia and reached there at about 8.00 p. I m. Sultan Mahmood deceased was lying seriously injured. He prepared his injury statement Exh. P. S. And despatched the injured alongwith Exh. P. S. To the D. H.
Q. Hospital, Lyallpur, under the care of Muhammad Malik F. C. He proceeded to the place of occurrence. He took blood. Stained earth from the spilt and made it into a sealed parcel vide memo. Exh. P. B. Three empties of .12 bore, to drat of .303 rifle and one lead bullet were found at one point near the place of occurrence. These were takers into posses--sion and made into separate sealed parcels vide memo. Exh. P. C.
On the arrival of Sultan Mahmood in D. H. Q. Hospital the Medical Officer informed Civil Lines Police, Lyallpur,. Muhammad Ayub Gul, A. S. I. (P. W. 16), proceeded to the hospital and enquired from the doctor as to whether the injured was in a fit condition to make a statement, but he was replied in the negative. The doctor informed the con--cerned Police Station Civil Lines, Lyallpur, that Sultan Mahmood had succumbed to the injuries in the hospital at 3-45 a.m. The same night, whereupon Muhammad Ayub Gul A. S. I. Went to the hospital, prepared the inquest report and despatched .The dead body to the mortuary for post-mortem
5. On the 18th of October 1965, Muhammad Bakhsh A. S. I. (P. W. 6), arrested Khalil Ahmad from his house. He took into possession his licensed gun along with licence and 26 cartridges in a bandolier, vide memo. Exh. P. Q. He made the gun into a sealed parcel. Ghulam Muhammad, S. H. O. Arrested Muhammad Sharif on the 20th of October. 1965, Khurshid and Latif were arrested on the 7th of November 1965, while Abdul Aziz was arrested on the 11th of January 1966. Muhammad Siddique Head Constable (P. W. 10), arrested Umar Hayat and Muhammad Shall on the Ist of December 1965, 'from the area of village tukra when they were alighting from a truck on Toba-Kamalia road. They had guns with them. Muhammad Shafi was carrying gun P. 5 and three live cartridges while Umar Hayat had gun P. 6, and three cartridges. The same were taken into possession and made into a sealed parcel vide memos. Exhs. P. L. And P. M., respectively. The report Exh. F. V., of the Serologist to the Government -of West Pakistan, Lahore, shows that the blood-stains on the earth recovered from the spot were disintegrated and its origin could not be determined. Shah Jahan Khan, Fire- Arms Expert P. W. 24, in his report Exh. P. W. 24/3, has stated that the to .12 bore crime empties 'C-3' and `C-4' were fired from gun P. 6.
6. Doctor Munawar-ud-Din, Medical Officer, D. H. Q. Hospital, Lyallpur, conducted the post-mortem examination on the dead body of Sultan Mahmood on the 18th of October 1965, at 9-30 a.m., and found the following injuries thereon :-
(1) A lacerated wound, 4" from umbilicus of left side of abdomen, 1--" x 3/8", not probed.
(2) A lacerated wound lumber region, 1--" x 1/3" opening into abdominal cavity with comminuted, fracture of the hip bone.
In the opinion of the doctor both the injuries were danger--as to life and had been caused by a fire-arm. Death in the opinion of the doctor was due to severe haemorrhage id shock as a result of the injuries which were sufficient individually and collectively in the ordinary course of nature to cause death.
On a query made by the police, the doctor stated that the wounds on the deceased could be the result of one fire. He stated that he did not consider it necessary to describe it in the, post-mortem report Exh. P. J., which of the to injuries was a wound of inlet or exit.
7. Umar Hayat when examined the prosecution allega--tions. He stated that he had been falsely implicated by the prosecution witnesses due to old enmity and that Mehr Muhammad Khan of Buche Ki produced him before the police and that the Head Constable never arrested him along with the unlicensed gun. The other accused also denied the prosecution allegations and impleaded that they had been impli--cated in this case on account of enmity. Mehr Muhammad Khan was examined in defence.
8. In appeal, learned counsel for the appellants argued, firstly that the witnesses were of, partisan character and that their evidence should not be accepted without independent corroboration, secondly, that the sun-set the on the 17th of October 1965, was 5-30 p.m., and the moon-rise at 11- 27 p.m. And that the occurrence, as alleged by the pro--secution, took place at 6-00 p. m., therefore, there was not sufficient light to enable the witnesses 'to identify the assailants and to witness the occurrence, thirdly that the. F. I. R, Exh. P. A., was certainly not recorded at the the that it purports to have been recorded, as it was borne out by the record that Ghulam Muhammad, S. H.
O. Did not describe in Exh. P. S., the manner in which Sultan. Mahmood suffered the injuries, though he was required to state so-in view of clause 3 (b) of Form No. 25.39 of the Police Rules. He demons--trated by; referring to the injury statement of Shamshad Exh. P. G. And 'the inquest report Exh. P. H., in Murder Reference No. 101 of 1967, that the police officer was con--versant with the police instructions as he had stated the manner in which the death of Shamshad was supposed to have been caused, therefore, it was urged that it was a belated report and the first informant had enough the to fabricate the story to his convenience and to name as many of his enemies as he could, fourthly, that the recovery of the empties at the spot was fabrication as it was not alleged in the F. I. R., or in the evidence that the assailants un--loaded their fire-arms and left their empties at the spot, and fifthly, that the wounds on the deceased were not circular and that the dimensions were such that it would not have been caused with a .12 bore gun or a 303 rifle and that they were caused with a spear or a dagger.
9. Learned counsel appearing on behalf of the State pointed out that the, eye-witnesses should be believed as they were quite independent and the eye-witness account in main has been supported by the attending circumstances and the evidence of recovery of gun P. 6 and that there was the evidence of the doctor and the Fire-arms Expert that the injuries were the result of the fire- arm which corroborated the ocular account.
10. Possibly, the strongest piece of evidence which we have in this case consists of the testimony of the eye-witnesses, namely, Ataullah P. W. 13, Barkat Ali P. W. 14 and Khan Muhammad P. W. 15. -They support the case of the prosecution in toto, Ataullah P. W. In cross-examination states :- "I own no land in Kamalia. Sultan Mahmood deceased was my nephew in relationship. I, the deceased and Barkat Ali, P. W. Originally belonged to Talwan in East Punjab . . . . . . It is a fact that Inayat Khan father of Umar Hayat accused and Mushtaq a cousin of Umar Hayat, were eye-- witnesses against Sultan Mahmood deceased in the murder case relating to, the death of Ghaffar.
Khurshid accused to was an eye-witness in this case. It is correct that Khalil and Latif accused were also witnesses in that case against the other accused and not Sultan Mahmood . . . .Sultan Mahmood had been falsely implicated in the murder of aforesaid . Ghaffar. I have appeared as a P.
W. In four or five cases. I was proceeded against under section 193, P. P. C. For attesting a surety bond. This bail bond related to Ejaz Kharral, the co-accused of Sultan Mahmood in the murder of Abdul Ghaffar aforesaid, I and Sultan Mahmood were chahaned under section 307 together, about 4-5 years ago . . . . . Sultan Mahmood was entered, in Register No. 10 of the police as a badmash. I do not know if he' was ever challaned under the Goondas Act, or bound down to keep peace by the District Magistrate, Lyallpur,' for a period of to years. It is correct that Sultan Mahmood was prosecuted under section 216, P. P. C. For giving shelter to the proclaimed offenders. It is a fact that one Sadoo Mirasi was involved in a dacoity case wherein Sultan Mahmood stood surety for him.
Sadoo absconded and the surety bond of Sultan Mahmood was forfeited but the proceedings were dropped later on. It is a fact that Sadoo Mirasi was entered as badmash in Bundle A of the police. I do not know if Sharif Shah, Shamsher Ali, Labh Din, Ejaz Hussain who were co-accused of Sultan Mahmood in Ghaffar's murder case, were entered as badmash No. 10 of the police register. I have no knowledge of the involvement of Sultan Mahmood in a smuggling case in 1959. In November 1964, Sultan Mahmood deceased, Ejaz Hussain, Ashiq Hussain and Khadim Hussain brothers of Sadoo Mirasi and Labh Din and Shamsher All were challaned under section 12/13 of the Criminal Law Amendment Act as against Abdul Ghaffar, Khalil Shah and Aziz accused. It is a fact that Ubaid Ullah son of Sultan Mahmood deceased had got a case registered under section 148/149, P. P. C.
Against Umar Hayat, Muhammad Shafi, Khurshid and Latif accused, who were challaned in that case. My servant Noora was got challaned by Shafi accused under the Arms Act and he appeared as a P. W. In that case. I appeared as a D. W. In that case. The above case was the result of the enmity of Shafi accused and the deceased."
Barkat Ali states as under in cross-examination : - "I live at a distance of 200 or 250 karams from the house of Sultan Muhmood towards North of the abadi. House of Sultan Mahmood is towards the South of the abadi House of Ata Ullah P. W. Is 50 karams towards that West of the house of Sultan Mahmood----------I had no friendship with Sultan Mahmood, but as he belonged to my native village Talwan, we would meet each other quite often. I have no affiliation with any party, out of parties of our town. . , . . . . Dera of Ghulam Qadir is at 2 furlong from the place of occurrence. The sun was about to set when we reached that dera. It had not, set as yet when we left that place. There are houses having their opening near the kacha wall abutting on the field of R.I Bahawal Khan. The sun had set at the the of the occur--rence but darkness had not yet set in. We could not make out which of the accused fired the first shot. It appeared just as if all had fired at onetime. The accused were not in a formation at the the of firing.
Khalil and Umar Hayat accused were on the front while the others were behind them. I cannot say whether the first round of fires had been fired in the air or aiming at Sultan Mabmood. We were on one side, towards the North of the accused, at a distance of 10 karams . .. . .. . Umar Din P. W. Was at a distance of 25 karams and Khan P. W. At a distance of 35 karams at the the of occurrence. Khan Muhammad P. W. States as under in cross-exami--nation : - "I have no property in Kamalia town, nor have I any business there. I had only come to purchase household articles. I have no relative in Kamalia either .......I own 9 killas of land in Chak 715 G. B. And cultivate it myself . . . . . . I had sold a he-goat to Nazoo Butcher and had' to recover part of its price from him. I had already received Rs. 50 from him at the the of sale of the he-goat about a month prior to this occurrence. There was no writing about this transaction. I had no other business in Kamalia on that day. I had gone from Lyallpur and do my way back to the check I went to contact the Butcher aforesaid. It is incorrect that I had advanced this amount to Nazoo Butcher' and had to recover that amount from him. (The witness volunteered, that the part payment of the price of 1 the he-goat is also treated by us a "Udhar" (loan) and that is why he had stated before the police that he had to- recover the amount loaned by him to Nazoo). I had stated before the Committing Magistrate that it was not a fact that I had gone to realise the loan that I had advanced to Nazoo before and bad not stated so before the police . . .. I was examined by the police on the third day of the occurrence . ... .. . After the occurrence I did not accompany the P. Ws., to the hospital as I was getting late and proceeded to my village on foot."
11. We have read the prosecution evidence very carefully and have reproduced some portions from the depositions of the eye-witnesses which have bearing on the decision of this case. One fact which is admitted by Ataullah P. W. Is that there was party faction, Ataullah P. W. And the deceased on the one side and the accused on the other. Barkat Ali P. W: to admits of the party faction in the town. The deceased, Barkat Ali, Khan Muhammad and Ataullah P. Ws, originally belong to village Talwan in East Punjab and after the Inde--pendence of the sub-continent, the deceased, Ataullah and Barkat Ali are living in the same abadi. It is true that enmity cuts both ways and could be the motive for the appellants to attack Sultan Mahmood, but it-is also possible that Ataullah P`. W., who is a relation of the deceased and in the matter of that for other persons interested in the prosecution to throw the whole burden on the appellants who were the enemies of the deceased.
No doubt, the evi--dence of Barkat Ali and Khan Muhammad P. Ws. Cannot be discarded merely on the ground that these witnesses have association with Ataullah P. W. However, their- past associa- -tion cannot be said to be insignificant and in the entire background we have to see whether Ataullah; Barkat Ali and Khan Muhammad P. Ws., were present at the the of the occurrence and whether their evidence can be relied upon for the conviction of the appellants. Ataullah P. W., is a relation of the deceased and is inimical to the appellants. If he was present at the spot, the accused would not have spared him. Surprisingly, none of the appellants fired at him.
12. Barkat Ali P. W. Appears to be a man of no consequence. He owns 6/7 canals of land jointly with his brother and admitted that he was not cultivating the land. He further stated that he was running a karyana shop which he gave up and started the business of chillies and gur. When questioned whether he maintained any accounts he replied in the negative. We, therefore, think that he is a man without a profession. The narrative of the occurrence by him seems to indicate that he was not there, 'as stated by him '`that Khalil Ahmad and Umar Hayat were on the front while the others were behind. If that was .So the appellants would have injured their own companions. It appears (hat Ataullah thought of naming him as the eye-witness on account of his association with him. Khan Muhammad P: W. Did. Not belong to Kamalia. He is a resident of a check which is at a distance of four miles. He is a chance witness and in order to show his presence he came forward with a story that he had sold a he-goat to one Nazoo Butcher. The story. Of the sale of the he-goat was not stated by him before the police or before the Committing Magistrate. In our opinion he has coined this story to show his presence at the the, of the occurrence. His conduct after the occurrence is also unnatural. He left for his village and was examined by the police on the third day of the occurrence. If he would have been an eye-witness of the occurrence, his statement should have been recorded by the police immediately. He or the police did not give arty explanation for recording his statement at a belated stage. He is one of the principal witnesses for tion, therefore, the defence has rightly asked that of this witness should be discarded inasmuch as sufficient the and opportunity of his being tutored.
13. The next question that arises is whether of collection of the quilts was a true one or a Unfortunately, no question was put by the defence aspect of the case but the to prosecution claimed to have accompanied the deceased for have not said as to whether they had collected if so, where were they dumped after they got the bus with the deceased. The prosecution failed Ghulam Qadir at whose dera the deceased prosecution witnesses are said to have stopped on their way to the town. This is another link missing in the chain of prose--cution story.
14. We have it in evidence that Sultan Mahmood injured was sent by Ghulam -Muhammad S. H. O., from Kamalia hospital to D. H. Q. Hospital, Lyallpur, through Muhammad Malik F. C. After he had prepared the injury statement Exh. P. S. In this document the nature of the injuries of Sultan Mahmood has not been described. It is not even mentioned that these injuries had been caused by a fire-arm although the Sub-Inspector was required under the Police Rules to do so. He merely mentioned that there were to injuries on the person of Sultan Mahmood from which blood was dripping. If the, Sub-Inspector had registered the case by that the he would have certainly mentioned in Exh. P. S. The manner in which Sultan Mahmood had suffered the injuries.' This was not stated therein, This omission lends support to the; plea of the defence that Ghulam Muhammad, Sub-Inspector, 'prepared the first, information report after he had taken the investigation is hand and he was not sure when he sent Sultan Mahmood for treatment as to by which weapon the injuries had been caused, and as such, it is difficult to - hold that the first information report was recorded at the the as alleged by the prosecution.
15. We may say that we are also not impressed by the manner in which the gun P. 6, is said to have been recovered Muhammad Siddique H. C., P. W. 10, stated that on the Ist of December 1965, when he reached in the area of Tukra, he saw Umar Hayat and Muhammad, Shafi accused alighting from a truck on Toba-Kamalia road and they started walking towards him. He arrested them and recovered guns and the cartridges. He stated that the area in which these guns were recovered falls within the jurisdiction of Police Station Pir Mahal, but he did hot make any report in the said police station. It was incumbent upon Muhammad Siddique H. C., as required under rule 25.3 of the Police Rules to report this occurrence to the concerned police station. No explana--tion whatsoever is forthcoming on the record why this was not done. This reflects on the genuineness of the recovery of the gun from Umar Hayat appellant. Ghulam Muhammad Sub-Inspector admitted in cross-examination that he asked Mehr Muhammad Khan to produce the absconding accused, who expressed his inability to produce Umar Hayat and Muhammad. Shafi on the 28th of November 1965. Mehr Muhammad Khan, who is a Chairman of Union Council Buche-ki appeared as D. W. 1, and deposed that as promised he produced Umar Hayat and Muhammad Shafi before the Sub --Inspector of Police Station Kamalia, on the 29th of Novem--ber 1965, and at that the they had no gun with them. On reading the evidence of Ghulam Muhammad Sub-Inspec--tor and Mehr Muhammad Khan D. W. We are clear in our mind that the recovery of gun P. 6, as alleged by the prosecution, was a fabricated one. We exclude the evidence of recovery from consideration.
16. We need not advert to the last argument of the learned counsel as we have disbelieved the ocular account and the evidence of recovery.
17. It has been held the and again by this Court and the Supreme Court of Pakistan that where there is ocular evidence of interested or inimical witnesses, the evidence on capital charge must come from unimpeachable source or be supported by strong circumstances that might remove any inherent doubt attaching to the evidence of such witnesses. In the instant case it is in evidence that there are residential houses and several people were examined by the investigating officer, but curiously enough, not a single witness of the locality was produced to support the charge.
18. For the reasons given above, we accept the appeal, set aside the convictions and the sentences of the appellants and acquit them. The sentence of death of Umar Hayat is not confirmed. We further direct that the appellants should be set at liberty forthwith, provided always they are not required in any other case. The fine is remitted and if paid shall be refunded to Muhammad Shafi, Khalil Ahmad, Abdul Aziz, Latif and Khurshid.