Muahmmad Munir Farukee, J.--The two appellants Sardar Khan and his brother Ghulam Rasul were convicted under section 302/34, P. P. C. on the 5th of December 1967 by Mr. Rasool Bakhsh Khan Leghari, then Additional Sessions Judge, Multan, who sentenced them to transportation for life with a line of Rs.1,000 or in default further rigorous imprisonment for 6 months each for committing the murder of Dewan deceased, their immediate neighbour and a close relation, in furtherance of their common intention on 18th of October 1966 at digerwela in his cattle-shed in Chak No. 83/15-L Police Station Mian Channu.
2. The prosecution case as originally reported to the police by Ramzan (P. W. 2) vide his statement Exh. P. A. was that he and his brother Ghulam Qadir (P.W. 3) were plastering their Chhapper assisted by their father Dewan deceased who was passing on the mud to them from the ground when the two appellants came there and taking exception to it told him to cut off the portion extending over their cattle-pen as it would be a nuisance for them. Ramzan P. W. replied that he would comply with the suggestion made by them after finishing the plastering but Sardar Khan appellant pulled him down and abused him. His father Dewan deceased intervened asking them to behave but the appellants did not approve and planted a blow each on his head from the wrong side of the hatchet carried by each of them. This dropped Dewan to the ground unconscious and the appellants made good their escape. Sarwar (P. W. 4) had also arrived in the meanwhile and witnessed this occurrence. They put Dewan, the injured person, on a cot and carried him towards the hospital but he succumbed to his injuries at a short distance. So they brought him back and placed his cot at the spot and Ramzan (P. W. 2) then set out for lodging a report at Police Post Chhab but he came to know on the way that the Sub-Inspector had gone to Multan. So he went to Police Station Mian Channu and reaching there at 11-58 p.m. during the night reported the matter.
After the formal registration of the case Syed Raza Rizvi, Sub-Inspector reached the scene of occurrence at about 6 a.m. on the next morning, after covering a distance of 23 miles. He found the dead body lying near the Chhappar and after the formal inquest report Exh. P. B. despatched it to the mortuary vide the injury statement Exh. P. C. under the escort of Abdur Rehman. He then secured blood-stained earth from there and made it into a sealed parcel vide Exh. P. D. He arrested Ghulam Rasul appellant who produced blood-stained hatchet P. 1 which was sealed into a parcel vide Exh. P. E., Likewise, Sardar Khan appellant, while in custody, led to the recovery of blood-stained hatchet P. 2 which was taken into possession and sealed into a parcel vide Exh. P. F., Abdur Rehman F. C. brought back the last worn clothes of the deceased P. 3 and P. 4 from the mortuary and produced them before the Sub-Inspector who secured them vide memo. Exh. P. G.
Ghulam Nabi draftsman prepared the site plan Exh. P. H. with its duplicates Exh. P. II./1 and P. H./2 which bear the notes in red ink of the Sub-Inspector with his signatures.
3. Dr. Muhammad Ikram Qureshi, M. O. Khanewal, performed the autopsy on the dead body of Dewan deceased on 19-10-66 at 5 a. m. and found the following two injuries:--
(1) A contused wound ' x * bone deep over the left side of the fore-head.
(2) A contused wound T x bone deep over the right side of the head, 6" above the right ear, with fracture of the bone underneath.
Injury No. 1 was simple while injury No. 2 was grievous. According to doctor, both the injuries were caused by blunt weapon and were ante-mortem in nature. The death was caused due to coma, intracranial haemorrhage and fracture of the skull bones due to injury No. 2, as, in the opinion of the doctor, this injury was sufficient to cause death in the ordinary course of nature. The doctor further opined that these injuries could be caused with the blunt side of the hatchet.
4. At the trial the two appellants denied all the above allegations including the production of their respective bloodstained hatchets and stated that they were falsely implicated in this case on account of enmity.
5. The prosecution, in its turn, relied on the testimony of Ramzan (P. W. 2), his brother Ghulam Qadir (P. W. 3), and their uncle Sarwar (P. W. 4) (husband of the sister of their father), who have supported the above narration in its broad outlines but have made some concessions in cross-examination which has changed the entire complex of the prosecution case. Each one of them admitted that Dewan deceased had actually assaulted Ghulain Rasul appellant with the spade he was using in transferring the mud into the Karahi before Ghulain Rasul appellant gave him a blow with a hatchet on his head. They had further admitted that he wielded the spade over the head of Ghulam Rasul appellant and in order to save himself he kneeled down on the ground and succeeded in dodging the spade blow. It was then that he delivered a blow on the head cf Dewan deceased in order to disable him for causing further harm to him. Sardar appellant is married to the sister of Dewan deceased like Sarwar (P. W. 4) and with a view to help him further he stated that the second blow was given by Sardar appellant to Dewan deceased with the sharp side of the hatchet which is in conflict with the medical evidence as the doctor Mr. Ikram Qureshi did not find any sharp- edged injury on the dead body. They had thereby dubbed Dewan deceased as an aggressor and conferred the right of self- defence on the two appellants. They had also admitted that a large number of their neighbours, namely, Imam Din, Qutab Din, Suhhan Din, another Diwan and some others were also attracted to the spot and witnessed the occurrence but none of them was mentioned in the calendar of the witnesses. Sarwar (P. W. 4) had also conceded another important factor which lend a serious taint to his testimony. He stated that after the death of Nawab, the father of Dewan deceased, Mst. Jannat the sister of the later and the wife of Sardar appellant was denied her share in the property left by her father by these prosecution witnesses on acount of which her husband, Sardar appellant, moved the Tehsildar and recovered the share of his wife from them which had created bad blood between the parties.
6. In view of this enmity between the parties emanating from the above litigation between them the evidence of the three prosecution witnesses required corroboration from some independent source which was not forthcoming in this case. Even otherwise their testimony has lost all its sting as the initiation of the assault had been transferred by them to Diwan deceased, who was given one blow by Ghulam Rasul to repel the same in exercise of his legal right, which he never exceeded as the second simple injury was apparently a result of his fall on the ground on receipt of the first blow. The case was thus not free from grave doubts the benefit of which cannot be denied to the appellants. We have, therefore, to accept this appeal and setting aside their conviction and sentences direct that they shall be set at liberty forthwith if not required in any other case. .