ATAULLAH SAMAD, J.-The two appellants, namely, Jeewan and Ghulam Rasul are brothers inter se.
They have been convicted by Mr. Muhammad Husain, Additional Sessions Judge, Dera Ghazi Khan, by order dated 22nd of September 1970, under sec--tion 302/34, P. P. C. For causing the death of one Haji Imam Bakhsh to a jungle in the area of village Ganji, Police Station Batil, District Dera Ghazi Khan. Jeewan was sentenced to death while Ghulam Rasul was awarded a sentence to transportation, for life.
There is also a usual murder reference before us under section 374, Cr. P. C. For confirmation of the sentence of death passed on Jeewan. This judgment will dispose of the appeal as well as the murder reference.
2. The occurrence took place on the night following 8th of September 1969. According to the two eye-witnesses, namely, Muhammad Ramzan (P. W. 6) and Noor Muhammad (P. W. 10), half a pehar before the close of the night they heard dhar dhar raised by Haji Imam Bakhsh deceased who was sleeping near them. Ghulam Rasul appellant had caught hold his legs while Jeewan who was armed with chhurri gave two or three blows to the deceased. The culpritsmade good their escape.
Muhammad Ramzan P. W. Went to Khair Muhammad (P. W. 5) a cousin of the deceased who has his tube well at a distance of three miles from the place of occurrence. He reached there half an hour after sunrise. Khair Muhammad came to the spot. Haji Imam Bakhsh was carried to Shah Sadar Din where he was placed in a truck and take to Civil Hospital, Dora Ghazi Khan.
3. The doctor examined the injured person and found two incised wounds in the region of the head on or about the left ear. As a result of these injuries, the left eyelids were echymosed and the eyeball showed sub-conjectival haemorrhage. The doctor sent a ruqqa to the S. H. O. Dera Ghazi Khan at 11-45 a. m, intimating to him the dangerous condition of the patient. The S. H. O. Appears to have marked it to Allah Dad (P. W. 3) Head Constable of Police Post No. 3. He came to the hospital and made enquiries as to whether the deceased was in a fit condition to make a statement. The answer given by the doctor at 5-45 p.m. Was in the negative. Thereafter, the Head Constable recorded the statement Exh. P. A. Of Muhammad Ramzan (P. W. 6). This was sent to the Police Station Batil in the jurisdiction of which the occurrence had taken place for registration of a formal F. I. R. Which was registered on 10th of September 1969, at 3-20 a. m.
4. The motive alleged by the prosecution is that the deceased Haji Imam Bakhsh was clearing the jungle for cultivation and on 8th of September 1969, there was an altercation between him and the two appellants as to the ownership of the land which Haji Imam Bakhsh was clearing off. While Haji Imam Bakhsh claimed that the land belonged to him, the appellants asserted that it was in their possession. After the altercation the appellants are said to have left in a menacing mood.
5. In the F. I. R. It was stated by the first informant that half a pehar before the expiry of night the deceased raised a noise, and the first informant and Nut Muhammad (P. W. 10) who is the son-in- law of the deceased, identified the two culprits in the light of the moon and the stars. At the trial however, Muhammad Ramzan said that the occurrence took place after midnight. Nur Muhammad P. W. Stuck to the position that the occurrence had taken place when night had still half a pehar to go.
6. Jeewan appellant was arrested on 12th of September 1969. He was produced by Qadir Bakhsh Kurai before the Sub-Inspector. On the same day he led to the recovery of chhurri P. 3 vide memo.
Exh. P. D. Which was witnessed by Khair Muhammad (P. W. 5) and one Muhammad Yusaf who was not examined. The serologist found that the chhurri was stained with human blood. Ghulam Rasul was produced before the Sub-Inspector by one Sardar Khan Chandia on 15th of September 1969.
7. The appellants denied the charge and said that-they had been involved due to enmity.
8. The learned counsel for the appellants has pressed two points. He submits that the deceased was examined by the doctor at 11-45 a. m. And no reasonable explanation is forthcoming for the fact that the statement of Muhammad Ramzan was recorded at 7 p. m. He in this connection refers to the statement of Head Constable Allah Dad (P. W.13) who stated that Khair Muhammad (P. W. 5) bad been an employee in the criminal Courts of the District. It is the suggestion of the learned counsel that this delay urea actually a manoeuvre on the part of the prosecution to cook up a story possibly with the help of Khair Muhammad and to decide as to who were to be named as accused persons and who were to, be cited as eye-witnesses.
9. Ramzan P. W. Claimed that he was a tenant of the deceased and fuss helping him in clearing the jungle. It is not can the record as to since when the deceased had started clearing the jungle and how long Ramzan had remained with him. He in his statement only referred to the altercation which took place on 5th of September 1969, and also stated that on the neat morning he was due to leave for his village. He further admitted that he had his own land measuring about 16/ 17 kanals in Mauza Pakki. It is, therefore, not clear under what circumstances this man claimed to be a tenant of the deceased.
10. As described above, Nur Muhammad P. W. Is the son-in-law of the deceased. He said that he had come to the deceased in order to ask him for a loan of Rs. 200 as he wanted to purchase a bullock. He admitted that the deceased usually visited his house in village Dau which is at a distance of about 1/8 miles but some time would stay in the jungle. We do not find this was a good reason for Nur Muhammad to come to his father-in-law as he could not expect that money could be given to him in the jungle. Actually, his own case is that when he asked for loan he was told that the deceased would arrange for it next morning. The conduct of this witness also does not inspire confidence.
11. It was admitted by Ramzan P. W. That the houses of Qadir Bakhsh and Azim etc. Were at a distance of 300/400 karams from the spot. There is another habitation at a distance of 500 karams. He admitted that he and Nur Muhammad raised no noise when they saw the occurrence.
He said that when the cot of the injured was being carried away from the spot, Qadir Kurai happened to come to the spot of his own accord. We do not believe that if these witnesses had actually seen the occurrence they would watch it silently and would not have even raised hue and cry. There were habitations around and in any case they were two against two and it was natural that they should have followed the culprits. They did nothing of the sort. In order to show that they had no arms with them they said that they had borrowed axes for cutting the jungle from Qadir Kurai and had returned the same to him. If the deceased had the intention to cut the jungle there leas no point in his returning the axes back to Qadir Kurai.
12. There is another significant admission which indicates that these witnesses did not see the occurrence. Muhammad Ramzan said that he reached the tube-well of Khair Muhammad P. W.
Half an hour after sunrise. If the occurrence had taken place as alleged by Muhammad Ramzan half a pehar before the expiry of the night, the news would have reached Khair Muhammad much earlier than half a pehar after sunrise. According to the F. I. R. The deceased lost his consciousness when he reached the hospital but Nur Muhammad said that he had become unconscious after receiving the injuries. In any case, there does not appear from tile record that these, two witnesses made any attempt to bring him to consciousness or to give him any sort of first-aid. We are also of the opinion that the part ascribed to Ghulam Rasul appellant is just to involve him in the case as is the unfortunate trend in criminal cases. He was not holding any arm and is said to have caught hold of the legs of the deceased.
13. The learned counsel for the State stressed mainly on the impartial quality of the evidence. It is true that the two witnesses have no enmity with the accused. The impartiality of a witness is a very relevant factor in assessing the value of his evidence but it has to be seen in the context of the whole prosecution evidence and the conduct of the witnesses. Here in this case, the witnesses silently watched the occurrence. There was abadi around. No help was called. None is informed.
Even Qadra Kurai their friend, came of his own accord when the cot was being carried. The indication is that even if Ramzan P. W. Was there, he came to know of these injuries some where in the morning, and then went to inform about it to the witnesses.
14. In view of the above discussion, the evidence of recovery becomes inconsequential but we may point out that out of the two recovery witnesses only one, namely, Khair Muhammad appeared at the trial and as stated above, he is a cousin of the deceased. The evidence of recovery is, therefore, not as impartial as the prosecution wants us to believe.
15. For the foregoing reasons we allow this appeal, set aside the conviction and sentences passed on the appellants and direct that they should be released forthwith unless they are required to be lawfully detained in some other case. The sentence of death is not confirmed.