1. SALAHUDDIN AHMED, J.-.Five persons were tried under section 302 of the Pakistan Penal Code for the murder of Nazir Ahmad by the learned Additional Sessions Judge, Gujrat, but appellant Muttali alone was convicted and sentenced to death under section 302 of the Pakistan Penal Code on 7-7- 1969, and the rest were all acquitted.
2. The occurrence took place on 31-8-1967 at peshhvela in a street near a mosque in village Saida, P.
3. S. Qaderabad, District Gujrat, while Nazir deceased accompanied by his cousin, P. W. Muhammad Khan were returning to their houses from the' shop of Salehoon blacksmith. As they arrived near the mosque, the appellant and his companions Ghulam Qadir, Nazra and Nadir, sons of A.I Ahmed , and their uncle Bahawal suddenly emerged from their ambush and attacked Nazir Ahmad deceased. Nadir was the first to strike the deceased on the head with a hatchet. The deceased fell down and Ghulam Qadir and appel--lant Muttali struck with their hatchets on the right and left legs respectively of the deceased. Nadir gave another blow on the head of the deceased. Bah exhorted his companions not to spare the deceased. P. W. Muhammad was warned by Bahawal not to come near on pain of being killed. The witness, however, raised alarm which attracted to the spot P. W. 14, Nazra P. W. 15, Shana, and Salehoon who entreated the assailants to spare Nazir deceased. It may be stated here that Salehoon was given up as unnecessary by the prosecution at trial. The assailants then left the scene. Injured Nazir was taken to the Civil Hospital, Phalia where he was examined by P. W. 18, Dr. Ghulam Ahmad at 7 p.m. The doctor sent a note to Police Station, Phalia and an Assistant Sub-Inspector of Police came to the hospital and recorded at 7-10 p.m. The statement of P. W. Muhammad Khan on the basis of which the formal First Information Report was recorded. Nazir Ahmad died in the hospital in the early hours of the morning on the 1st September 1967. The medical officer of the hospital found on the deceased the following two incised wounds on the head :- "(1) An incised wound 5---x 1' into bone underneath com--pletely cut on right side of head, starting from the right ear going vertically inward, the right ear was divided into two parts completely.
(2) An incised wound 1-- x 1/4' x scalp deep on the right side .Of the head 1' inner to injury No. 1. It was oblique in direction."
4. The Doctor also found one incised wound completely cutting the scapula and an incised wound on the left leg. The right lower leg was cut completely. There were also two abrasions on the nose and on the left cheek. The deceased was found unconscious and in a precarious condition and his pulse was quick and feeble.
5. The motive for the crime was stated to be an occurrence which took place about one year before the occurrence which resulted in the registration of a case under section 307, P. P. C. Against, among others, Muhammad Khan P. W. And Nazir deceased. In the earlier occurrence the buffaloes of Nadir, Ghalam Qadir and Nazir accused persons had damaged the crops of Muhammad Khan P.
6. W. And Nazir Ahmad deceased and they, therefore, gave stick blows to Nazra accused. Eventually the criminal case ended in acquittal. It has, therefore, been rightly observed by the trial Court that the motive affects appellant Muttali only remotely inasmuch as he is not related to the other accused persons. The admission of P. W. 3 in cross-examination that appellant Muttali appeared as a P. W. In the earlier criminal case which ended in acquittal does not make any substantial difference.
7. All the five accused were implicated in the First Information Report for the murder of Nazir deceased and it was stated therein that the offence were committed with hatchets. The Police Officer arrived at the scene shortly after and recovered from there bloodstained earth. The accused had absconded and they, including the appellant, were arrested on the 7th November 1967. It is said that the appellant led the Police accompanied by P. W.-11, Mutalli, and P. W. 12, Muhammad Khan, to his house and produced from there a blood-stained hatchet and a" blood- stained chaddar. It was subsequently found that both the articles were stained with human blood.
8. The prosecution relied on the evidence of three eye-witnesses, viz. P. W. 13, Muhammad Hussain, P.
9. W. 14, Nazra and P. W. 15, Shana and the recovery of a blood--stained hatchet and a blood-stained chaddar to prove its case against the appellant. The trial Court, who had the benefit of watching the demeanour of the witnesses, felt that none of the eye-witnesses inspired confidence and was, therefore, not trust--worthy. The Court gave reasons for rejecting their evidence and the reasons cannot be described as perverse. P. W. 13, Muhammad Hussain is the cousin of Nazir deceased. Mst.
10. Rasoolan, sister of the deceased is wife of the P. W. Muhammad Hussain. The house of this witness is one killa from the place of occurrence. He gave different reasons for his presence at the place of occurrence and thus appeared to be a chance witness. He is also an interested witness.
11. P. W. 14 Nazra also failed to inspire confidence. He con--tradicted himself on the question as to how he came to be present near the place of occurrence when as a matter of fact he was expected t be at his well where his cattle were kept one mile off from the lace of occurrence.
12. P. W. 15, Shana has also fared no better. Although P. W. 13 admitted that A.I brother of P. W. Shana married fist. Sardarn another sister of Nazir deceased, P. W. Shahna denied this. P. W. Shahna lived 4/-1 killas from the place of occurrence. The different reasons he gave for his presence at place of occur--rence led the trial Court to hold that he too was a chance witness. The learned Judges of the High Court felt no hesitation in up--holding the finding of the trial Judge that these three witnesses were not truthful and were therefore, rightly disbelieved. In any event, in spite of their evidence all the four other accused persons were held not guilty and acquitted by the trial Court and the State did not challenge their acquittal before the High Court. So far as the evidence of the eye-witnesses is concerned, the matter must rest there for in my opinion this Court ordinarily and in accordance with its established practice will not go out of its way to override the considered opinion of both the trial Court and the High Court.
13. The evidence of the eye-witnesses having been rejected the recovery of the blood-stained hatchet and chaddar from the house of the appellant is of no avail to the prosecution for the p pose of corroboration of the ocular evidence. The recovery of the said articles by itself does not prove the case against the appel--lant. The trial Court has, however, relied on the evidence of recovery for the purpose of corroborating the oral dying statement sought to be proved by C. W. Qutab Din, a Canal Patwari. The evidence of this witness is now the sole basis for the conviction, and sentence of the appellant. -Leave to appeal was granted in this case to consider whether consistent with the safe administration of justice this evidence was good enough to sustain the conviction and sentence of the appellant. In my opinion the leave granting order makes this quite clear.
14. This Court should not, therefore, constitute itself as a second appellate Court of facts so as to enable it to appraise afresh and to accept the evidence of the very witnesses who have been dis-- carded by the trial Court as well as the High Court.
15. Court witness Qutab Din has stated that he lived in the house of P. W. 14, Nazra. On the date of occurrence, some time after having said his Zohur prayer he had gone out in search of his 4/5 years' old son who was missing. He could not find the boy and while returning he came near his house and heard someone calling "Maulvi Jee Pani". Lie saw a young man sitting on the ground in a kneeling position with his face covered with blood. The witness could not recognize the young man.
16. Mst. Sakina Bibi, who lived in another part of his house, arrived on having been called by him and she said that the injured was Nazir son of Rahman, their neighbour. Mst. Sakina went to bring water and during her absence upon an inquiry made by the C. W. As to who had beaten him, the injured said "Muttali son of Yara." However, when Mst. Sakina returned with water followed by Mst.Rasulan wife of brother of Nazir Ahmad deceased, the deceased went unconscious and he card not drink water put at his mouth, The statement of the witness was recorded by the Police on the following day of the occurrence. The witness said he did not find any person anywhere near the injured man although he was there for about 4/5 minutes. He said he dis--tinctly remembered that the deceased uttered the name of Muttali and his father Yara. He proceeded to state as follows : "I did state before the C. M. That the deceased told me the name of Mutalli and his father as his assailant-but I do not know whether the C. M. Recorded the name of the father of Mutalli or not.
17. (Confronted with his statement before the C. M. Where the parentage of Mutalli is not there). I did not state before the C. M. That I had only heard from Nazir one name like that of Mutalli about his assailant and during his that utterance he fell unconscious. (Confronted so recorded): The deceased never spoke after uttering the name of Mutalli and his father. I did not state before the C.
18. M. That the deceased was not per--fectly in consciousness when he was uttering some words (Confronted so recorded)."
19. None of the two women has been examined to support the evidence of the C. W.
20. It is evident that the C. W. Mentioned the name of the father of Muttali for the first time- before the Additional Sessions Judge. I have checked up his statement before the police in this regard. Even if it be conceded that the learned Additional Sessions Judge and the learned Judges of the-High Court may have been right in holding that the C. W. Is .a truthful witness, the question, is whether having regard to the fact that he mentioned that name of Muttali for the first time before trial Court, and there was certainly more than one Muttali in the village (for example P. W. 11 Mutalli), it was prudent and safe to uphold the con--viction of the appellant upon the solitary evidence of the C. W. Without any corroboration by some other reliable evidence. By way of corroboration the trial Court sought to, rely on the evidence of recovery of the blood-stained hatchet and the chaddar.
21. The learned Judges of the High Court, however, chose to discard this evidence and relied solely on the evidence of the C. W. To maintain the conviction of the appellant. Their reasons for rejecting this evidence are two-fold, firstly, because none of the three Lambardars or six B. D. Members of the locality, who should have been normally available to the Police, was associated with the recovery, and secondly, the two witnesses of recovery, namely, P. W. 11, Mutalli and P. W. 12, Muhammad, Khan did not inspire confidence. The former because he could not say whether the hatchet P. 1 was the same that was recovered from the house of the appellant, and because he deliberately tried to suppress certain relationship which he had already admitted before the committing Magistrate ; and the latter because he was a resident of village Dhal, 3 miles off from the place of occurrence and also because he too .Tried to suppress certain relationship. As regards the 1st reason given by the High Court, it has transpired in the evidence of P. W. 11, Mutalli that there were three Lambardars, and six B. D. Members and a Chairman in the village of occurrence. P. W. 16, Sub-Inspector of police who seized the hatchet and the chaddar admitted that, no Lambardar or B. D. Member was present at the seizure. There is nothing to show they were not available.
22. Added to this may be yet another reason which though patent did not seem to strike to the learned Judges of the High Court. Appellant Mutalli was implicated in the crime in the very first information report, and yet his house was not searched until after his arrest nine days after the occurrence. The abscondence of the appellant was no reason for not searching his house. Further--more it seems improbable that all this time the appellant will keep the implicating articles in his possession and not do anything to do away with the tell-tale blood stains on them. This is incon--sistent with normal human conduct of a guilty person concerned for his safety. The second reason may not be very convincing, but in the face of the evidence that more respectable witnesses might have been available to witness the seizure and .Yet their help was not sought by the police was not an unreasonable ground for not relying on the evidence of recovery. This is again a matter in which this Court in my opinion, should not seek to impose its own opinion even if it feels that a different view should have been taken. Thus bereft of the recovery evidence there is hardly anything left to support the oral dying statement as deposed to by the C. W.
23. Apart from the recovery, the story as narrated by the C. W. Seems unreal and does not satisfy the test of probability. The occurrence took place in a street near a mosque where there are houses around, and in broad daylight. It is also natural that the victim must have raised continuous alarms. And yet the C. W. Would have the Court believe that there was none around the place of occurrence when he was the injured sitting in the street. The injured had named only one person as his assailant also does not appear to be consistent with the medical evidence which shows that more than one person was likely to have been involved in the assault. Again having regard to the nature of the injuries and the medical evidence it seems to me reasonably doubtful whether the deceased was able to speak.
24. For all these reasons and consistent with the principles of safe administration of justice I think it should be held that the prosecution has failed to prove it's case against the appellant beyond any reasonable doubt.
25. I would, accordingly, allow the appeal and set aside the con--viction and sentence of the appellant, and direct that he be set at liberty forthwith, if not wanted in connection with any other matter.
26. I would, however, like to observe that the investigations of the case leave much to be desired, and that if they had been conducted efficiently the result of the case might have been different.
27. MUHAMMAD YAQUB ALI, A. C. J.-I agree.
28. WAHEEDUDDIN AHMAD, J. -I agree.