1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the four convicts under sections 302/148/149, P.P.C., to reappraise the evidence as it had certain special features requiring closer scrutiny.
2. The deceased Zafar Ali alias Marru aged 24/27 years was a resident of village Bhagwanpura, Police Station Manawan, District Lahore. The appellants and the acquitted accused Ajmal and Saddiq Masih were also residents of the same village. The relations between the complainant party and that of the appellants had taken a turn for the worse on 1-5-1977 when to criminal cases were got registered one by each against the other. In one F.I.R. No.81/77 P.S. Manawan Abdul Wahid the father of Akram appellant and Ajmal the acquitted accused, had complained against ineffective firing by the deceased and his brother Mushtaq. Mst. Hussain Bibi P.W.6, the mother of the deceased, had also got a report registered F.I.R. 82/77 P.S. Manawan complaining of an offence under section 506, P.P.C. Against the father and uncle of the appellant Akram. This was followed on 12-5-1977 by another report F.I.R. 90/77 P.S. Manawan lodged by Muhammad Akram appellant complaining of effective firing on him. These cases were pending trial and the parties were not on speaking terms.
3. On the night of 25th and 26th July, 1978 the deceased Zafar Ali alongwith his younger brother Muhammad Aslam aged 11 years P.W.8 had gone to village Pir Naseer for attending a fair. It was 21 miles from Village Bhagwanpura. Mst. Husain Bibi P.W.6 had also left her house and wanted to pass the night at the house of her other son Mushtaq who was out in the fields that night. At the house of Mushtaq, Rashid P.W.7 a son-in-law of Mst. Husain Bibi was staying as guest and also one -Ali Muhammad. In the fair Akram appellant is stated to have taken the deceased aside for a talk and thereafter with his five companions forced him to accompany them to their Village Bhagwanpura.
4. On way near the house of Mushtaq and the fields of one Mairaj Din when the deceased tried to raise an Warm and to escape from their clutches, Ajmal and Saddiq Masih the acquitted accused caught hold of him while Akram and Mushtaq armed with hatchets and Afzal and Waris armed with Lathis inflicted blows on him. The noise raised by the deceased and Muhammad Aslam attracted Mst. Husain Bibi P.W.6 and Rashid P.W.7 from the house of Mushtaq. They saw the appellants inflicting blows with their respective weapons and when he expired, they lifted his dead body and removed it to the Haveli of Akram. At 4.30 a:m. Mst. Husain Bibi P.W.6 in the company of one Bashir (not produced) went to the Police Station Manawan and lodged a report about the occurrence at 5.30 a.m. Abbas Khan, Sub-Inspector P.W.12 recorded the report and came to the spot. From the field of Mairaj Din he recovered the blood-stained earth and a pair of shoes of the deceased. He prepared the injury statement and the inquest report and sent the dead body for medical examination. Dr. Imtiaz Ahmad Bhatti performed the post-mortem and found the following ante-mortem injuries:- "(1)Lacerated wound 71 cm. x bone deep over back left side of head.
5. (2)Lacerated wound 5) cm. x 1 cm. x bone deep over back left side of head below and outer to injury No. 1.
6. (3)Lacerated wound 11 x 3/4 cm. x bone deep over bridge of nose.
7. (4)Abrasion 11 cm. x 3/4 cm. Over angle of left lower jaw.
8. (5)Lacerated wound 2J cm x 1 cm x bone deep over left lower leg with deformity of left leg.
9. (6)Contusion 30 cm. x 7 cm. Over front of right forearm.
10. (7)Contusion 24 cm. x 8 cm. Over back of right forearm.
11. (8)Contusion 26 cm. x 6 cm. Over whole of left forearm.
12. (9)Lacerated wound 41 cm. x 1/2 cm. x bone deep over inner lower right leg.
13. (10)Multiple abrasions over an area of 6 cm. x 4 cm. Over front left knee.
14. (11)Contusion 4 cm. x 21 cm. Over inner right knee."
15. According to the doctor, injuries Nos.!, 2 and 5 were sufficient in the ordinary course to cause the death.
16. Akram appellant was arrested on 26-7-1978 and his shirt and Banyan were found to be stained with blood on the back side. These were taken into possession. On 28-7-1978 he led to the recovery of the blood-stained hatchet Exh.P.3. Afzal's blood-stained shirt Exh. P.10 was also taken into possession. The shirt and Chaddar of Mushtaq were also found to be blood-stained and were taken into possession. Afzal lead to the recovery of the Lathi, Mushtaq lead to the recovery of the blood-stained hatchet P.4 and Waris also led to the recovery of a Lathi.
17. Akram, appellant explained the case against him in the following words:- "After the occurrence, I came to know that Zafar Ali deceased and to others had come to my Haveli to commit theft. Muhammad Afzal and Siddique accused were present at my Haveli while they were sleeping there. They got up and raised alarm, which attracted some other people to my Haveli. Zafar All deceased and his companions also inflicted injuries to Afzal and Siddique accused.
18. The other people who were attracted to the spot tried to capture Zafar Ali deceased and others who had tried to escape and in that process those people caused injuries to Zafar Ali deceased.
19. The to companions of the deceased succeeded in making good their escape. I and my co- accused have been falsely implicated in this case because of previous enmity, with the connivance of police."
20. Afzal also explained the case against him in the following words: - "Siddique accused and I were sleeping in the Haveli of Muhammad Akram accused on the night of occurrence. Zafar Ali d4ceased accompanied with to others came there to commit theft. Siddique and I got up and raised alarm. Some other people were also attracted to the spot. While Siddique and I raised alarm, Zafar Ali and his companions attacked us while they were trying to escape and inflicted us injuries."
21. Siddique Masih the acquitted accused explained the case against him as follows:- "I was also present at the Haveli of Akram accused on the night of occurrence. Zafar Ali deceased and his to companions had arrived there to commit theft. Afzal accused and I raised alarm, which also attracted some other people to the spot. Zafar Ali deceased and his companions in a bid to escape from the spot attacked Afzal co-accused and me and also inflicted us injuries on that account. I have been falsely implicated in this case".
22. All the appellants and the acquitted accused denied the recoveries and alleged their implication due to enmity. They produced five witnesses in defence and a few documents to establish that the deceased was a habitual burglar; that Shaffi the sole recovery witness produced was an accused in at least three theft cases and was effectively under the thumb of the police. The to witnesses residents of the village Bhagwanpura supported the versions set out by three of the appellants explaining the circumstances in which the deceased came to be killed.
23. The trial Court rejected the evidence of Mst. Hussain Bibi on the ground that she had not satisfactorily accounted for her presence at the house of Mushtaq in the vicinity where the murder had taken place and her statement was full of contradictions and was uninspiring. Rashid P.W.7 was also disbelieved for the reason that he was a resident of another place, had failed to account for his presence in the vicinity and did not appear to be a truthful witness. The child witness Muhammad Aslam P.W.8 was found to be truthful and his statement got support from the recoveries which were believed. The version of the appellants was found implausible. The trial Court also observed that:- "It would also be relevant to point out here that if under any stretch of imagination, it is a case of self-defence the said right has been clearly exceeded as after the deceased was encircled by a large number of persons and captured there was no occasion to give him a merciless beating and cause his death."
24. The trial Court found all the six accused guilty under section 302/149, P.P.C. Convicted and sentenced Akram to death and all others to life imprisonment and a fine of 86.2,000 each or in default one year's R.I. They were also found guilty of the offence under section 148, P.P.C. And sentenced to one year's R.I.
25. While considering the question of confirmation of the death sentence to Akram and appeal of others, the learned Judges of the High Court upheld the conclusion of the trial Court that Rashid (P.W.7) was not creditworthy. As regards Mst. Husain Bibi, the learned Judges observed that her presence in the house of her son cannot be doubted merely because she left her unmarried daughter alone in her house. She was believed as an eye-witness of the occurrence alongwith Muhammad Aslam P.W.B. At the same the the learned Judges allowed the benefit of doubt to Ajmal and Saddiq Masih on the following reasoning:- "The consideration of evidence on record reveals that the cases of Ajmal and Siddique Masih appellants are distinguishable from the rest of the appellants. Both of them were empty-handed.
26. They had no direct motive to kill Zaffer Ali. Muhammad Ajmal was only thirteen years old at the relevant the. He was arrested on 29-7-1978, i.e. Three days after the occurrence. The injuries suffered by Sadiq Masih were superficial. The prosecution appears to have laid a wider rope to involve as many persons as possible. We give them benefit of doubt and acquit them. Ajmal appellant is on bail. His bail bond stands discharged. Sadiq Masih appellant shall be released forthwith, if not required in any other case."
27. The death sentence of Akram was confirmed and while dismissing the appeals of Afzal, Mushtaq and Waris nothing was said about their convic--tion under. Section 148, P.P.C. Nor was their conviction under sections 302/149, P.P.C., resettled as one under section 302/34, P.P.C.
28. The learned counsel for the appellants has contended that the prosecution case was manifestly as improbable and confused as was the case of appellants, if not more. The manner in which the deceased was accosted at the fair; the method by which he was made to accompany the appellants for a long distance of 2--miles, coming across people and villages on the way, and the murder being committed close to the Abadi of the village, very close to the house of Mushtaq are all circum--stances which on no reasoning or material on record can be considered sufficient to prove the case against the appellants. The antecedents of the recovery witness and his helplessness before police has been highlighted with a view to find fault with the evidence of recovery of the weapons of offence as well as the clothes allegedly taken of the person of the appellants.
29. The fact that there existed enmity of serious nature is brought out from the statements of the three appellants. The three reports referred to, and the pending criminal cases were proof positive of the fact that there was bad blood between the parties, and the statement of Mst. Hussain Bibi P.W.6 establishes that they were not on speaking terms. In this background, what Muhammad Aslam P.W.8 and the prosecution allege is that at the fair at about mid-night Akram arrived with hatchet and while the deceased and Muhammad Aslam were completely unarmed, took the deceased aside on the pretext of talking to him. The deceased accompanied him, notwithstanding that Akram appellant was at that the in the company of five others one of whom was armed with hatchet, to with Lathis and to were empty-handed. Thereafter the deceased and Muhammad Aslam were asked to walk in terrorem to and a half miles towards their village for no obvious purpose. There is no indication in the evidence of any protest or attempt to end such a state of affairs till they reached the field of Meraj Din close to the Abadi. We have different versions on the record as to how such a thing was accomplished. Muhammad Aslam P.W.8 at first stated as follows: - "Akram accused had asked my brother to listen to him while we were in the Mails and took my brother Zafar from Mails to Bahgwanpura. When Akram accused took Zafar from the Maila and went towards the village the other accused also accompanied him. I also followed them. When we reached near the village, Akram accused threatened Zafar deceased and told him that he would be put to death. My brother tried to escape, but the accused started inflicting him injuries. Boora accused held the deceased from his right arm..."
30. In cross-examination he stated that:- "Zafar deceased was forcibly removed from a distance of to Killas from the place where Mails was being held. Zafar did not raise alarm when the deceased captured him as they did not permit him to do so. When I raised alarm the accused also threatened me. I did not return to Maila when my brother Zafar was captured by the accused ...."
31. Finally, he stated that:- "My brother Zafar was taken to the spot from the place where he was captured by accused in Japha held by Akram accused..."
32. Rashid Ahmad stated about the same matter in the following words:- "P.W. Aslam had also told me that when Zafar deceased and he were brought to the spot from the Maila, the accused had even then put their hands on their mouths, while passing through the village Terra..."
33. Such an explanation as has been given by the prosecution for the presence of the appellants, the deceased and Muhammad Aslam P.W.8 and their coming together is uninspiring to say the least.
34. We are in agreement with the assessment of the trial Court with regard to the presence of Hussain Bibi P.W.6 and Rashid Ahmad P.W.7 at the the of occurrence. The inconsistencies in their statement are to numerous to be explained on any acceptable hypothesis.
35. As regards, the exact place where the dead body was found Nazir Ahmad F.C. P.W.1 stated that:-- "The dead body was lying near the school in village Baghwanpura from where I took it to the mortuary."
36. Azeem Khan F.C. P.W.2 stated that:-- "We had reached the spot at 7 a.m. From the police station for the first the. The police party consisted of Abbas Khan S. H .0. Nawab Khan A.S.I., Muhammad Yousaf A.S.I and three Foot Constables. Nawab Khan A.S.I. And Muhammad Yousaf A.S.I. Did not take any proceedings before the dead body was made over to us. After the dead body was given to us Nawab Khan A.S.I. Left the spot to arrange a truck for the dead body. As I was sitting outside with the accused I do not know what proceedings did Nawab Khan S.I take. The Sub-Inspector was sitting in the school whereas I was present in the house of the accused. These to places are at a distance of ten paces from each other."
37. Muhammad Aslam stated that:-- "The police came to our village at about 8/9 a.m. At that the my mother Mst. Hussain Bibi was also present at the school where the police had come. The police party consisted of to Thanedars and some foot constables whose number 1 do not remember at present. The accused were brought to the school at about 12 noon, where they were arrested and handcuffed by the Thanedar. The accused were taken to the police station from the school, in the noontime. The dead body of my brother was taken into possession by the police at about 12 in the noon.."
38. Abbas Khan (P.W.12) stated as follows:- "After that I proceeded to the spot where I collected blood-stained earth vide recovery memo.
39. Exh.P.K. The earth was also made into a sealed parcel. After that I took into possession a pair of shoes Exh.P-7/1-2 of the deceased vide recovery memo. Exh.P.L. After this I prepared the inquest report Exh.P.B. And injury statement Exh.P.P. In respect of Zafar Ali deceased..."
40. The site plan shows the recovery of the dead body from the Haveli of Akram appellant. The inquest report also mentions so. The investigating officer could find no trace of dragging, or trail of blood on the ground anywhere near the spot where he found the shoes and the blood-stained earth.
41. Considering that the school is only across the: lane and close to the house of Akram; it cannot be said that on such statements the recovery of the dead body from inside the Haveli of the appellant is proved. The statement of the appellants to does not lead to any such inference.
42. There is, finally the recovery of blood-stained clothes and the weapons used. The only witness from the public produced in the case is Muhammad Shaft P.W.9 who is involved in numerous theft cases and was effectively under the influence of police. By itself the recoveries or the statement of Muhammad Shaft is not such as to prove the case of the prosecution.
43. As regards the defence version much need not be said except that Hussain Bibi P.W. 6 the mother of the deceased identified the hatchet allegedly recovered from Akram appellant as one belonging to her son. She states that:-- "The hatchet with which Akram accused had caused injuries to my son was that of Zafar Ali deceased which was snatched from him by Akram accused. The significant mark of that hatchet is that it had a 'patri' on its handle."
44. On a consideration of the entire evidence on record we are satisfied that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. They are entitled to acquittal. Accepting their appeal against conviction and sentence, we set aside the judgment of the High Court and acquit them of all the charges. They shall be released forthwith unless their detention is required in some other case.