S.A. NUSRAT, J.--The appellants were tried along with one Muhammad Ramzan for the murder of Khushi Muhammad under section 302/34, P.P.C and were convicted and sentenced by the learned Sessions Judge, Muzaffargarh by his judgment dated 6th August, 1975 to imprisonment for life and to pay a fine of Rs.1,000 or in default to undergo one year rigorous imprisonment. Muhammad Ramzan was sentenced to death. The appellants filed appeal against their conviction and sentence, and so did Muhammad Ramzan from jail. The death sentence was also referred for confirmation. The learned High Court by its judgment, dated 13th April, 1976 dismissed the appeal of the appellants and accepted that of Muhammad Ramzan to the extent that his sentence was commuted to life imprisonment and a fine of Rs.1,000 or in default one year rigorous imprisonment.
The death sentence was not confirmed.
2. The appellants have now come up in appeal against the judgment of the High Court by Special Leave of this Court which was granted on the consideration that re-appraisal, of evidence was necessary in the case.
3. The case of the prosecution was that on 8th of January, 1974 at 8.00 p.m., Muhammad Altaf (P.W.12) son of deceased Khushi Muhammad was present in his house when Ghulam Qadir (P.W.13) came to him and informed him that his father had been killed by the appellants and Muhammad Ramzan in rectangle No.39 and that he (Ghulam Qadir P.W.13'), Muhammad Sharif (P.W.14) and Muhammad Shafi (P.W. 9 in the Court of the Committing Magistrate) had seen the occurrence having been attracted to the spot on hearing a noise. Thereupon Muhammad Altaf and his brother Muhammad Aslam alongwith Ghulam Qadir P.W. Went to the spot and saw their father lying dead where Muhammad Shafi and Muhammad Sharif were also present. Leaving the dead body and the others on the spot, Muhammad Altaf started for police post Munda, situated at a distance of about 3 miles from the spot but allegedly met Mansab Ali, A.S.I. (P.W.15), on the bus stand at a distance of a furlong from the police post to whom he reported the matter at 11-15 p.m. The A.S.I. Sent this report to the police station Dera Din Panah, 27 miles away, on the basis of which a case under section 302/34, P.P.C. Was registered by Aziz Ahmad, H.C.(P.W.14) at 00.15 hours on 9th of January, 1974. All the accused were arrested by Mansab Ali, A.S.I. On 14th of January, 1974. Thereafter, on 18th January, 1974 he allegedly recovered a revolver with an empty and three live cartridges at the instance of Mohabbat Ali, a blood-stained hatchet at the instance of Abdul Aziz and a blood- stained Sota at the instance of Muhammad Ramzan. These were the three arms with which, according to the prosecution witnesses, the accused were armed and which they had used against the deceased.
4. Dr. Saeedullah, P. W. 1, who conducted the post-mortem examination on the dead body found a bruise on the top of the head, a grazing firearm wound on the left ear which was charred and an incised wound on the face with front of nose missing upto the margin of upper lib (whole cartilage of nozal bone was absent). According to the doctor, the deceased had died as a result of the head injury caused by a blunt weapon. After the completion of investigation, the accused were challaned to the Court of the illaqa Magistrate from where they were committed for trial to the Court of Sessions and were convicted and sentenced as mentioned above.
5. The motive alleged for the offence was that the deceased had been a lessee of the disputed land belonging to one Ghulam Haider from 8/9 years whereas B9ohabbat Ali appellant was his tenant for about to years. During the course of his lease the deceased had constructed houses on the said land where he was residing. About to years before the occurrence Mohabbat Ali took this land on lease from Ghulam Haider and started pressing the deceased to vacate the houses constructed by him on the land. The deceased did not vacate the land, which resulted in criminal litigation between the parties. A complaint against the deceased and others was filed at the instance of Mohabbat Ali under section 4481427134, P.P.C. On 29th March 1973. Thereafter on 13th August 1973 on the application of the deceased proceedings were taken under section 107/151, Criminal Procedure Code against the present appellants and others. The case of the prosecution, therefore, was that the deceased was murdered at the hands of the appellants for not vacating the houses on the disputed land and for starting criminal litigation against them. Although Mohammad Ramzan was not directly connected with the motive but was said to have joint cultivation with the appellants.
6. The prosecution relied upon the ocular testimony of three eye--witnesses, namely, Ghulam Qadir (P.W.13), Muhammad Sharif (P.W.14) and Mohammad Shafi, who had appeared as P.W. 9 before the Committing Magistrate but since he had died before the trial his statement was transferred to the Sessions' file.
7. The appellants in their statements before the trial Court denied their participation in the crime.
They disowned the recoveries and stated that they had been falsely implicated on account of enmity, and that Ghulam Qadir, who wanted to take the land in question on lease from Ghulam Haider, murdered the deceased. A further plea set up in the defence was that Khushi Mohammad deceased had refused to accept the hand of Mst. Hafeezan, dtughter of Ghulam Qadir, P.W., for his son P.W. Altaf saying that she was of immoral character and therefore, Ghulam Qadir was annoyed with the deceased and he had himself murdered him and falsely implicated the appellants in the case. Corroboration was sought from the medical evidence according to which the nose of the deceased Khushi Mohammad was missing having been cut of by sharp-edged weapon. This, according to the defence indicated that the murder of Khushi Mohammad was the result of some issue regarding Ghairat.
8. The learned counsel for the appellants contended that the crime was in fact not witnessed by anyone and the entire prosecution story was concocted and false. It was pointed out that the occurrence was stated to have taken place at 8.00 p.m., but the report was lodged at 11.15 p.m., outside the police post at the bus stand, a short distance away, to the A.S.I. Mansab Ali, who was found to be available there. There was thus inordinate delay in the lodging of the report which goes to show that the police instead of recording the report at the police post had gone to the spot, made investigation and recorded it after consultations and deliberations. No explanation was furnished by the prosecution for the delay in lodging the report. It was further contended that the prosecution story on the face of it was full of inexplicable improbabilities and the appellants were falsely implicated in the crime due to enmity.
9. We have gone through the to judgments in the case and the evidence on the record. The complainant Mohammad Altaf, who had promptly gone to the scene of occurrence after receiving information for the commission of the offence from Ghulam Qadir, P.W., did not furnish any explanation for the delay in lodging the F.I.R. Having stated that the occurrence had taken place at 8.00 p.m. According to him, he had come to report the matter leaving his brother Mohammad Aslam, Ghulam Qadir, Mohammad Sharif and Mohammad Shafi with the dead body showing that he had promptly acted in the matter. Surely it would not have taken 3J hours the for the complainant to report the matter to the A.S.I., who was found to be present about 1--furlongs away outside police post at the bus stand. This aspect of the cases appears to have been clearly overlooked by the learned to Courts below. As regards the recoveries are concerned, the revolver had nor been connected with the crime and it was improbable, almost impossible, that the appellant and the other to accused could have kept the incriminating articles at their house intact viz. The spent cartridge and the revolver and the hatchet and Sota blood-stained until 18th oil January, 1974 to be readily -available by the police when the occurrence itself had taken place on 8th January, 1974 and they had been arrested on 14th of January, 1974. The deceased was done to death at a distance of about one mile from his shop in rectangle No. 39 which was located at Muzaffargarh- Mianwali Road and belonged to. Ghulam Qadir, P.W. According to P.W. Ghulam Rasul, Patwari, who had prepared the site plan, there was no path near the place of occurrence and according to P.W. Ghulam Qadir, there was wheat crop standing at the place of occurrence which was about one foot high and blood was seen on the wheat crop. Mohammad Sharif (P.W.14) also stated that he had also seen the blood on the wheat crop. Admittedly the blood-stained wheat' crop was not taken into possession by the police. Mr. Mansab Ali, A.S.I. (P.W.15) admitted that no passage had been shown in the site plan near the place of occurrence nor mention of any passage was made by him in the red notes in the site plan. Why did the deceased go to a field having one foot high wheat crop on a cold night at 8.00 p.m., leaving the regular path is a matter which the prosecution has failed to explain. It is highly improbable that in the cold month of January, almost about three hours after sunset, the deceased may have taken the risk of going out of way in a cultivated field with stand--ing crop. According to all the eye-witnesses, they were at their houses when they were attracted to by some noise and had rushed to the scene of occurrence. The deceased was done to death at a distance of more than a furlong from houses of the witnesses and it was not possible for them to have promptly reached the spot in the to see the occurrence. According to the witnesses each of the to accused had given one blow and the third one had fired only one shot and as such the entire occurrence must have finished within seconds.
Therefore, in the circumstances, the reaching of the prosecution witnesses on they spot and having seen all the accused surrounding the deceased anti the prosecution witnesses entreating the accused not to kill the deceased is a story, which is hardly believable. Further at 8-00 p.m., in the month of January, three hours after sunset, the witnesses in the village must be naturally been inside their Kothas behind closed doors and the story that they heard the noise from a distance of more than a furlong is again something which does not stand to reason being highly improbable.
In the circumstances, the evidence furnished by the alleged eye-witnesses cannot be relied upon nor any reliance can be placed on the alleged recoveries as mentioned above.
10. In view of the above discussion, we are satisfied that the prosecu--tion has failed to establish the case against the appellants beyond reasonable doubt. We would, therefore, allow the appeal, and acquit the appellants, who should be set at liberty forthwith unless required in connection with some other case. As regards the non-appealing convict, Muhammad Ramzan, we direct that the benefit of acceptance of this appeal shall also be extended to him who shall stand acquitted, and will be set at liberty forthwith if not required in any other case. In granting such benefit to Muhammad Ramzan, we are supported by a decision of this Court in the case of Muhammad Aslam and 5 others v. The State 1972 SCMR 194.