RIAZ AHMAD, J.--The appellants Murid son of Kaloo, resident of Mitha Dandam, Tehsil Sadiqabad, District Rahimyar Khan, Laloo son of Matara, Qasim son of Moose, Guloo son of Sachana, all Swautra by caste, residents of Meuza Rajree, Tehsil Sadiqabad, District Rehimyar Khan, were tried by Additional Sessions Judge, Rahimyar Khan, .On a charge under section 302 read with section 34 of the P.P.C. For having caused the murder of Riaz Ahmed deceased. The learned Additional Sessions Judge, vide his judgment, dated 7-12-1983 found all the appellants guilty on the said charge, and thus sentenced each of the appellants to death, and to pay a fine of Rs.5,000 each, and to suffer six months' R.I. In the event of default of payment of fine. It was further ordered, that half of fine if realised shall be paid to the heirs of Riaz Ahmed deceased.
2. The appellants have assailed their conviction by filing an appeal (Crl. Appeal 104/1983) and the case has also been referred to this Court, under section 374, Cr.P.C. For confirmation of the death sentence. We propose to dispose of the Criminal appeal as well as the murder reference by this order.
3. The unfortunate occurrence resulting into the murder of Riaz Ahmed deceased took place on 15- 6-1980 et about 6 p.m. Within the area of village Mitha Dandam situated at a distance of 7 miles from Police Station Sadder, Sadiqabad. The occurrence was reported by Ghazi Muhammad P.W.2 real brother of the deceased to Muhammad Hussain, Sub-Inspector Police, Post Ahmedpur Lemma, who recorded the statement of Ghazi Muhammad P.W.2 which is Exh.P.B. In village Ahmedpur Lemma, on a bus stand and the formal F.I.R. Exh.P.B./1 was drawn at the Police Station at 8 p.m. By Nisar Ahmed, Muharrar Head Constable P.W.10. In his statement the complainant Ghazi Muhammad P.W.2 stated, that he was resident of village Ahmedpur Lemma and his brother Riaz Ahmed deceased and one Muhammad Shafique son of Muhammad Latif jointly owned one square of land in village Mitha Dandam, which was being cultivated by the tenants namely Matara and Nabi Bakhsh. The complainant further stated, that about five months before the occurrence, the said Meters alongwith Murid, Gaman had committed theft of a tree from the land of Riaz Ahmed deceased, whereupon the deceased Riaz Ahmed had got a case registered for its theft against Matara, Murid and Gaman, who were challaned by the police. According to the complainant all the aforesaid accused persons in the theft case, were allowed bail on 15-6-1980 i.e. The day of occurrence resulting into the murder of Riaz Ahmed deceased. The complainant further stated, that or the fateful day at about 6 p.m. Riaz Ahmed deceased had proceeded to take a round of his land in village Mitha Dandam, when the appellants Murid, Guloo alongwith one Karam Ali (who was not tried in this case) armed with hatchets, while appellants Qasim son of Moose, and Laloo son of Meters armed with Sotis abused Riaz Ahmed deceased and remarked, that he will be taught a lesson, for getting the appellants arrested and involved in the theft case, and soon thereafter, an attack was launched upon the deceased. According to the complainant, the hue and cry raised by the deceased, attracted him, and he reached the scene of occurrence alongwith Muhammad Rafique a brother of the deceased Muhammad Yakub, Muhammad Bakhsh and Muhammad Iqbal.
The complainant asserted, that within his view, Karam Ali (not challaned) gave a hatchet blow from its wrong side on the head of the deceased, while Murid appellant and Guloo appellant inflicted one blow each with their hatchets on the right and left leg of the deceased. As a result of these blows the deceased fell down, whereupon Qasim and Laloo appellants inflicted blows on the various parts of the body of the deceased with their Sotis. The complainant could not interfere on account of the arm carried by the appellants, and thus after injuring the deceased, all the appellants took to their heels. The deceased was being taken to the hospital on a cot, when on their way, complainant and the witnesses came across Muhammad Hussain, Sub-Inspector P.W.9, who as stated earlier, recorded statement of the complainant on the basis of which formal F.I.R. Was drawn.
4. The deceased was taken to Sadiqabad Hospital, where he was examined by Dr. Abdul Wahab on 15-6-1980 at 11 p.m. The injured Riaz Ahmed died at 1 a.m. On 16th June, 1980. The said Doctor conducted post-mortem examination of the dead body of the deceased and the following injuries were noticed by him:- (1)A stalled shaped contused wound 1 --" x --" x scalp deep on the right side of head 2" above the right eye-brow.
(2)A contusion 2" x 1" on the front of right shoulder.
(3)Three contused wound 1"-1--" x -- " x muscles deep on the left leg. Leg fibula fractured.
(4)An incised wound 1 --" x 2/3" x bone deep on the right leg 5" below the right knee. Tibia was cut.
(5)A contused wound 1 --" x 1" x bone deep on the right leg 3", above the right ankle inner side.
(6)Multiple contused wound in an area of 6" x 4" on the middle of right leg, mixed with each other.
Right tibia was broken into pieces and parts were missing. Muscles were lacerated.
5. On 18th June, 1980 all the appellants were produced by the Zimandar before Muhammad Hussain, Sub-Inspector, P.W.9 at the Police post Ahmedpur Lemma and they were arrested on the same day. On the same day Murid appellant while in police custody led to the recovery of blood- stained hatchet P.6 from his house, which was taken into possession vide memo Exh P.L. Guloo appellant on the same day led to the recovery of blood-stained hatchet P.7 from his house, which was taken into possession vide memo Exh.P.M. Qasim appellant also led on the same day to the recovery of blood-stained Stick P.4 from his house in Mauza Rajri, which was taken into possession vide memo Exh. P.J. Laloo also led to the recovery of Soti P.5 from his residential Kotha in village Mitha Dandam and it was taken into possession vide memo Exh.P.K. All these memos were attested by Muhammad Rafique P.W.8 and Muhammad Iqbal (not produced), besides the Investigating Officer, Muhammad Hussain, Sub-Inspector P.W.9.
6. At the trial, the prosecution placed reliance upon ocular testimony furnished by Ghazi Muhammad P.W.2 and Muhammad Rafique P.W.B. The other eye-witnesses namely Muhammad Iqbal and Muhammad Bakhsh were given up. The prosecution also placed reliance upon the recoveries of the weapons, because all these articles were found to be sustained with human blood, vide reports of the Serologist Chemical Examiner.
7. We have gone through the evidence on the record and we have heard the learned counsel for the parties at length. Our impression at the very outset is, that both the eye-witnesses namely Ghazi Muhammad P.W.2 and Muhammad Rafique P.W.8 had not seen the occurrence. Their testimony stands falsified by other circumstances on the record. In the very first instance, we cannot be oblivious of the fact, that the first informant named one Karam Ali as one of the assailant in the F.I.R., not only he was named, but specific role for having caused a blow with a hatchet on the head of the deceased, was attributed to Karam Ali assailant. Few days after the lodging of the F.I.R., the first informant and the other eye-witnesses swore an affidavit exonerating the said Karam Ali, and the explanation was; that by mistake. They had named Karam Ali, as one of the assailant. It is further pertinent to mention, that according to the complainant P.W.2. He had also Witnessed utterances of the appellant to the effect, that they had remarked, that they had come to teach a lesson to Riaz Ahmed deceased. In the same breach, the first informant stated, that he had reached the scene of occurrence only after hearing the hue and cry raised by the deceased. If it was so, then by all standards laid down for the appraisal of evidence, the first informant cannot be expected to be the witness of such utterance or remark before the launching of attack. It is further important to note, that Muhammad Rafique P.W.8 happens to be the nephew of first informant, Muhammad Bakhsh given up eye-witness is father-in-law of Riaz deceased, while the other given up eye-witness Muhammad Iqbal was nephew of Muhammad Bakhsh. The record also shows that the scene of occurrence was visible from Chok Swautra, a bus stand situated at a distance of not more than 6 to 7 acres from the place of occurrence. The record also indicates, that the said Chows Swautra is a bus, bus stand and surprisingly the occurrence way not witnessed besides the first informant and their relatives.
8. We are not convinced with the explanation offered by P.W.2 Ghazi Muhammad, the first informant about his presence at the scene of occurrence. The explanation is most unsatisfactory. The witness stated, that he was a Barber and was present at his shop when the deceased informed him, that he was proceeding to his land and the, witness should follow him. According to the first informant or the direction of the deceased, he alongwith Muhammad Rafiq P.W.8 and the given up eye- witness followed Riaz Ahmad deceased. Surprisingly the first informant did not state this fact in the F.I.R. The perusal of his statement in Court reveals, that he had improved upon the F.I.R. And his statement recorded under section 161, Cr.P.C. To convince the; trial Court about his presence. The witness stated, that the deceased was two Acres ahead of him when hp heard the alarm. The witness I further stated, that he and the other eye-witnesses, saw the occurrence; from a distance of half a Kills. In our view, such important facts would have been deposed to by an eye-witness at the earliest, rather than in the trial Court. We are thus convinced, that the occurrence; was not witnessed by the first informant.
9. The mainstay of the witness in support of his presence at the scene of occurrence was, that by following the instructions of the deceased, he had proceeded to village Mitha Dandam. The witness admitted, that he and others had no other business in Mitha Dandam. Strangely enough the witness came out with another explanation by stating, that he and his companions had to take the deceased alongwith them for proceedings to Mauza Rajri in connection with Warabandi, because they needed the help of the deceased to irrigate their land. The witness Ghazi Muhammad P.W.2 further stated, that he alongwith the eye-witnesses named in the F.I.R. Owned land measuring 131 Acres in Mauza Rajri, out of which 5/7 Acres were being cultivated by their tenants. No documentary evidence was brought on the record by the prosecution to prove the said ownership and, therefore, we are of the view, that these explanations have been fabricated by Ghazi Muhammad P.W.2 to establish his presence. He is a Barber by profession and' runs a shop in village Ahmedpur Lamma. He has no land, or house, or any business in village Mitha Dandam, and, therefore, no occasion could arise for following Riaz Ahmad deceased to the aforesaid village.
Village Ahmedpur Lamma is at a distance of 4/5 miles from village Mitha Dandam, the place of occurrence, while the so-called land owned by the first informant situated in Mauza Rajri is a distance of half a mile from the place of occurrence, the natural course of event would be to go straight to Rajri instead of going via Mitha Dandam.
10. P.W.2 Ghazi Muhammad, the first informant is belied by the Muhammad Rafique P.W.9 on the question of having followed Riaz deceased on his instruction to village Mitha Dandam. Muhammad Rafique, eye-witness P.W.8 in cross-examination stated as under:-- "Riaz deceased had not met me on the day while proceedings to Basti Mitha Dandam. I cannot say as to when Riaz met Ghazi Muhammad and what time he had left for Mitha Dandam."
11. Muhammad Rafique eye-witness tried to corroborate Ghazi Muhammad P.W.2 on the question of the ownership of land in village Mauza Rajri, but was unable to tell the rectangle number, Khata number, or Kills number of the said land. He further deposed. That the only purpose to join Riaz Ahmad deceased, was for taking him to village Mauza Rajri to irrigate the land. It is not intelligible to us, as to why Ghazi Muhammad P.W.2 and Muhammad Rafique P.W.8 and the given up eye- witnesses wanted to take Riaz with them for irrigating their land, when admittedly 5 to 7 Acres of the said land was being allegedly cultivated by the tenants. The prosecution also did not produce any document or record as to the Warabandi to establish, that it was the D turn of complainant and the co-owners to irrigate the land and therefore, we consider such assertion as devoid of truth.
12. The statement of Muhammad Rafique read in conjunction with the statement of the complainant has convinced us, that these witnesses had not seen the occurrence, because, according to Muhammad Rafique, he alongwith complainant and the given up eye-witnesses, had boarded a bus for proceedings to Mitha Dandam and after getting down the bus at Chowk Swautra, they did not proceed straight away to the land of Riaz Ahmad deceased, but reached at his Dera/shop. Admittedly, the deceased had proceeded earlier, than the complainant and the other witnesses. There is nothing on the record to show the time, and the manner, in which Riaz Ahmad deceased had proceeded to village Mitha Dandam. If we believe the prosecution version, then it would mean that there was only interval of few minutes, between arrival of Riaz Ahmad deceased and the complainant and the other witnesses in village Mitha Dandam. By no stretch of imagination we can believe the prosecution version, because otherwise we have to infer, that Riaz Ahmad and the complainant had reached simultaneously which is not the case of witnesses. Since the complainant and his associate had boarded a bus, therefore, considering the normal course of events, the deceased would f have also boarded a bus. It is not possible to believe, that both buses had reached Chauk Swautra simultaneously. The prosecution has not taken us into confidence and, therefore, we are constrained to deduce that it was improbable on the part of the complainant and the eye-witnesses to have seen the occurrence.
13. We are also doubtful about the prosecution version as to the manner, in which the statement of Ghazi Muhammad P.W.2 was recorded on a bus stand in village Amedpur Lamma by Muhammad Hussain, Sub-Inspector P.W.9. It was admitted by the complainant, that Police Post Ahmedpur Lamma was located in the said town. It was admitted, that if one has to go Ahmedpur Lamma from Mitha Dandam, the police post would fall in the way. The bus stand is also located in the town of Ahmedpur Lamma and the police post was hardly at a distance of 50 to 60 yards from the bus stand. When cross-examined, the complainant had to admit, that the Sub-Inspector had met them at the bus-stand and he had directed the complainant and others to reach the police post, and thus at reaching the police post, the statement of the complainant was recorded by the Sub- Inspector. These facts cast doubt about the genuineness of the F.I.R. We are of the view, that it was recorded after preliminary investigation and deliberations, because the G statement of other eye- witnesses were recorded in hospital. That is why, the name of Karam Ali, an innocent persons finds mentioned in the F.I.R.
14. Considering all these circumstances, we are convinced, that the prosecution had miserably failed to establish its case beyond any shadow of doubt. Consequently, the appeal filed by the appellants must succeed Accordingly, we hereby set aside the conviction and the sentence of death awarded to the appellants. The reference made to us for the confirmation of death sentence under section 374, Cr.P.C. Is answered in negative.