ABDUL WAHEED, J.--Rashid alias Sheeda, aged 20 years, Rafique alias Feeka, aged 14/15 years and their father namely Ramzan, aged 60 years were tried for criminally trespassing into the Haveli of Muhammad Ali, aged 50 years and his son namely Amanat Ali, aged 23 years and committing their murder by the Additional Sessions Judge, Kasur who vide his judgment dated 29th of April, 1984, convicted all of them under section 452/34, P.P.C. And sentenced each of them to suffer R.I. For two years and to pay a fine of Rs.1,000 or in default to undergo R.I. For a further period of one year and under section 302/34, P.P.C, and while Rashid alias Sheeda and Ramzan were sentenced to death, Rafique alias Feeka on account of his young age was sentenced to imprisonment for life. They were also sentenced each to pay a fine of Rs.5,000 or in default to suffer R.I. For a further period of two years. In the case of Rafique alias Feeka, the sentences were to run concurrently. It was directed that the fine, if realized, be paid to the legal heirs of the deceased as compensation. All the three have filed an appeal against their convictions and sentences. The trial Court also has submitted a reference under section 374, Cr.P.C. For confirmation of death sentence awarded to Rashid alias Sheeda and Ramzan. This judgment shall dispose of the appeal as well as the reference.
2. The occurrence took place on 1st of July, 1982 at 10-00 p.m. In the Haveli of the deceased situate in the fields in the area of village Raja Jang, about one and a half miles away from Police Post Raja Jang and twelve miles away from Police Station Mustafa Abad, Tehsil and District Kasur. It was reported on 2nd of July, 1982 at 12-15 a.m. At Police Post Raja Jang by Mst. Inayat Begum P.W. 7 vide statement Ex.P.K. It was recorded by A.S.I. Muhammad Aslam P.W.10. On the basis of this statement, a case under sections 452 and 302 read with section 34, P.P.C. Was registered at Police Station Mustafa Abad on 2nd of July, 1982 at 1-30 a.m. Vide formal F.I.R. Ex. P.K./1 drawn by S.I. Ghulam Nabi P.W.11 who was then posted there as S.H.O.
3. Muhammad Ali deceased was the brother of Ramzan appellant. They had their Havelis adjacent to each other in the fields. The prosecution case briefly was that about nine or ten months prior to the occurrence, an altercation had taken place between the two on a dispute over the partition of their land. In the altercation, Muhammad Ali deceased and Sheeda and Feeka appellants, sons of Ramzan appellant had sustained injuries. In view of the close relationship however, no proceedings were taken by them against each other and they reconciled on the intervention of their Bradari.
Ramzan appellant left his Haveli and he along with his family started living with Ibrahim, his elder brother. About one and a half months prior to the occurrence, Ramzan appellant along with his family came back to his Haveli and started living there. A day before the occurrence at Degarwela, all the three appellants had abused both the deceased and insisted on the partition of their land.
The deceased, however, kept quiet. Prior to that also, the parties had verbal altercation twice or thrice. Khushi Muhammad P.W. (given up at the trial as having been won over) is the son-in-law of Muhammad Ali deceased. He is also the nephew of Muhammad Ali deceased as well as Ramzan appellant. He was sent for by Muhammad Ali deceased for rapproachement between the parties.
4. On 1st of July, 1982 at 10-00 p.m. Both the deceased along with Mst. Inayat Begum P.W.7, widow of Muhammad Ali deceased, Mst. Surraya Bibi P.W.8, widow of Amanat Ali deceased, Nawab Din P.W.
(given up at the trial as having been won over), son of Muhammad Ali deceased and the said Khushi Muhammad were present in their Haveli sitting on their cots. They were talking to each other. Amanat Ali deceased went out to urinate. Soon after all the appellants came there abusing and raising Lalkaras that they would kill Muhammad Ali and Amanat Ali Ramzan and Sheeda were armed with hatchets while Feeka was carrying a spear. They attacked Amanat Ali who tried to escape raising an alarm. However, Feeka gave a spear blow to Amanat Ali in his abdomen as a result of which he fell down. Then all the there inflicted injuries on him with their respective weapons. He became unconscious. Muhammad Ali deceased stepped forward to save his son. All the three appellants attacked him as well. He out of fear ran inside his Haveli. All the three appellants chased him inside the Haveli. Sheeda gave a blow to him with his hatchet. Muhammad Ali warded off the blow with his Dang. Ramzan also gave him a blow with his hatchet. That blow too was warded off on the Dang. Muhammad Ali deceased ran inside the room of the Haveli and shut it from inside. The appellants broke open the room and entered therein. A lantern was burning there.
Feeka gave the first blow with his spear hitting Muhammad Ali deceased in his abdomen, felling him down. Sheeda appellant picked up a Kassi which was lying inside the room and started causing injuries with it to Muhammad Ali deceased. Ramzan and Feeka also caused injuries to the deceased with their respective weapons. When the appellants became sure that Muhammad Ali deceased had died, they came out of the room and started inflicting more injuries on Amanat Ali deceased. On making sure that Amanat Ali deceased had also died, all the three appellants raising Lalkaras left the spot with their weapons. Mst. Inayat Begum P.W. 7 along with Khushi Muhammad P.W., her son-in-law, leaving the dead bodies at the spot went to Police Post Raja Jang to lodge a report.
5. A.S.I. Muhammad Aslam P.W.10 investigated the case. On reaching the spot on the night of occurrence, he prepared injury statements Exs.P.L. And P.N. And inquest reports Exs.P.M. And P.O. In respect of the dead bodies of Amanat Ali and Muhammad Ali and sent the dead bodies to the mortuary for post-mortem examination. He collected blood-stained earth from two places where the dead body of Amanat Ali and that of Muhammad Ali were lying and sealed the same into two parcels vide memo. Exs.P.Q. And P.R. He also seized from there blood-stained Kassi P.9 lying near the dead body of Muhammad Ali deceased and made it into a sealed parcel vide memo. Ex.P.S. A blood-stained Dang P.10 was also lying near the dead body of Muhammad Ali deceased. He recovered the same also and made it into a sealed parcel vide memo. Ex.P.T. He took into possession from there a lantern P.11 vide memo. Ex.P.U. He arrested Sheeda and Feeka appellants on 5th of July, 1982. On 7th of July, 1982, Sheeda while in custody got recovered blood-stained hatchet P.7 from his residential Kotha. He took it into possession and made it into a sealed parcel vide memo. Ex.P.H. Similarly Feeka accused while in custody got recovered blood-stained spear Ex.P.8 from the same residential Kotha and he made it into a sealed parcel vide memo. Ex. P.J. On 11th of July, 1982, he arrested Ramzan appellant. On 16th of July, 1982, this appellant while in custody got recovered blood-stained hatchet P.6 from the same residential Kotha and A.S.I. Muhammad Akram P.W.5 took the same into possession and made it into a sealed parcel vide memo. Ex.P.F. The site plan Ex.P.E. And its duplicate Ex.P.E./1 of the place of occurrence were prepared by Muhammad Din Patwari P.W.4.
6. The Chemical Examiner vide his reports Exs.P.Z. And P.Z./1-5 and the Serologist vide his reports Exs.P.AA and P.AA/1-5 observed that blood-stained articles recovered in this case were stained with human blood.
7. After the investigation of the case, all the appellants were challaned.
8. On 2nd of July, 1982 at 5-00 p.m. Dr. Sadiq Hussain Naqvi P.W.1, Medical Officer, District Headquarters Hospital, Kasur conducted post--mortem examination on the dead body of Muhammad Ali deceased and found the following injuries:-
(1) A cut wound on right side of head at fronto-paristel bone area size 8 c.m. x 3 c.m. x scalp was cut and underneath corresponding bones were cut. Brain matter had protruded out.
(2) A cut wound on right side frontal bone area size 6 c.m. x 2 c.m. x scalp and bone was cut.
(3) A cut wound on right side cheek and zygomatic bone area size 8 c.m. x 2-1/2 c.m. x soft tissues and bones were cut. Upper and lower jaws were also cut into pieces.
(4) A cut wound on right cheek size 5 c.m. x 3 c.m. x soft tissues and bones were cut.
(5) A cut wound on right side chest size 3 c.m. x 1-1/2 c.m. x muscle deep.
(6) A cut wound on front of neck size 4 c.m. x 2 c.m. x muscle deep.
(7) A cut wound on front of left shoulder size 3 c.m. x 1 c.m. x muscle deep.
(8 to 10) Three cut wounds on outer side of left shoulder size 4 c.m. x 2 c.m. x muscle deep to 3-1/2 c.m. x 2-1/2 c.m. x bone deep.
(11) A cut wound on back of left elbow size 4 c.m. x 2 c.m. x muscle deep.
(12) A cut wound on front of left forearm upper part size 6 c.m. x 3 c.m. x muscle deep.
(13 & 14) Two cut wounds on top of right shoulder size 6 x 2 c.m. x bone deep and 4 c.m. x 2-1/2 c.m. x bone deep.
(15) A cut wound on outer side of right shoulder size 6 x 2 c.m. x muscle deep.
(16 & 17) Two cut wounds on back of right elbow size 4 x 2 c.m. x muscle deep and 3 x 2 c.m. x muscle deep.
(18 & 19) Two cut wounds on back of right forearm size 6 c.m. x 2 c.m. x muscle deep and 3 c.m. x 1- 1/2 c.m. x muscle deep.
(20) Right hand index finger was cut from base and attached with skin flap.
(21 to 23) Three cut wounds on back of right hand sizes 3 c.m. x 2 c.m. x muscle deep 2 c.m. x 2-1/2 c.m. x muscle deep and 3-1/2 c.m. x 2 c.m. x bone deep.
(24 & 25) Two stab wounds on abdomen above umblicus size 6 c.m. x 2 c.m. x paritoneal cavity, 3 c.m. x 2 c.m. x peritoneal cavity.
(26) A stab wound above the umblicus and below injuries Nos. 24 and 25 size 6 c.m. x 4 c.m. x peritoneal cavity. Intestines were protruding out.
(27) A stab wound on front of left thigh upper part size 3 c.m. x 1 c.m. x muscle deep.
(28 to 32) Five stab wounds on back of chest at middle of both sides of vertebral column near midline sizes from 2-1/2 c.m. x 1-1/2 c.m. x chest cavity to 2 c.m. x 1 c.m. x chest cavity deep.
(33) A big cut wound on back of trunk above the pelvis at middle and left side. Size 12 c.m. x 6 c.m. x pelvis deep.
(34 to 36) Three stab wounds on outer side of left side abdomen above the pelvis size 4 c.m. x 1-1/2 c.m., 2-1/2 c.m. x 1 c.m. And 3-1/2 c.m. x 1-1/4 c.m. All abdominal cavity deep.
(37 to 39) Three incised wounds on left buttock outer side sizes 6 c.m. x 1-1/2 c .m. x muscle deep, 4 c.m. x 1 c.m. x muscle deep and 3-1/2 c.m. x 1 c.m. x muscle deep.
(40) A cut wound on left buttock near calf size 3 c.m. x 1-1/2 c.m. x muscle deep.
(41 to 43) Three cut wounds on back and outer side of left ankle sizes 5 c.m. x 2 c.m. x soft tissue and bones cut, 3 c.m. x 2 c.m. x muscle deep and 2-1/2 c.m. x 1-1/2 c.m. x muscle deep.
(44) A cut wound on outer side of left foot size 6 c.m. x 1-1/2 c.m. x muscle deep.
(45) A cut wound on outer side of left foot little toe was cut and attached with skin flap.
(46) A cut wound on medial size of left ankle size 6 c.m. x 2 c.m. x underneath bone was cut.
(47) A cut wound on medial size of left foot at middle size 2-1/2 c.m. x 1-1/2 c.m. x bone was cut.
9. In the opinion of the Medical Officer, the deceased had died due to shock and extensive internal and external haemorrhage and injury to the brain as a result of the above injuries which were collectively sufficient to cause death in the ordinary course of nature. These injuries were ante-- mortem and had been caused by sharp-edged weapon. The probable interval between the injuries and the death was immediate and between the death and the post-mortem examination within 24 hours. Ex.P.A. Is the post-mortem examination report.
10. On the same date at 6-00 p.m. The above Medical Officer conducted autopsy on the dead body of Amanat Ali and observed the following injuries:-
(1) A cut wound on left side tempo-parietal bones area size 7-1/2 c.m. x 2 c.m. x scalp and bones were cut, brain matter and membranes were also cut.
(2) A cut wound on back of head at left side occipito-parietal bone area size 6 c.m. x 2-1/2 c.m. x scalp and bones were cut, brain matter and brain membranes also cut.
(3) A cut wound on top of head at midline of both parietal bone area size 6 c.m. x 2-1/2 c.m. x scalp and bones were cut, brain matter and membranes were also cut.
(4) A cut wound on front of chest at upper end of sternum size 6 c.m. x 3 c.m. x soft tissues and underneath bone cut.
(5) A cut wound on top of left shoulder size 4 c.m. x 2-1/2 c.m. x soft tissues and bone was cut.
(6) A cut wound on outer side of left arm upper part size 4 c.m. x 2-1/4 c.m. x muscle deep.
(7) A cut wound on outer side of left forearm upper part size 4 c.m. x 1-1/4 c.m. x muscle deep.
(8) A cut wound on below left axilla in the mid axillary line size 5 c.m. x 2 c.m. x muscle deep.
(9 & 10) Two cut wounds on back of left arm abova elbow size 3 c.m. x 2 c.m. x muscle deep and 3 c.m. x 1-1/2 c.m. x muscle deep.
(11 & 12) Two incised wounds on back of left wrist size 2 c.m. x I c.m. x muscle deep and 1-1/2 c.m. x muscle deep and 1-1/2 c.m. x 1 c.m. x muscle deep.
(13) A cut wound on back of right shoulder size 8 c.m. x 1-1/2 c.m. x soft tissues and bone was cut.
(14) A cut wound on outer side of right elbow size 3-1/2 c.m. x 1-1/2 c.m. x soft tissues and bones were cut.
(15) A cut wound on back of right hand size 3-1/2 c.m. x 2 c.m. x bones were cut.
(16) A cut wound at base of right hand thumb size 3 c.m. x 1-1/2 c.m. x muscle deep.
(17 & 18) Two cut wounds on forehead size 2-1/2 c.m. x 1 c.m. x bone was cut, 3 c.m. x 1-1/4 c.m. x soft tissue and bones were cut.
(19) A stab wound on outer side of left side chest at middle size 3 c.m. x 1-1/2 c.m. x chest cavity deep.
(20) A cut wound on right side chest front size 4 c.m. x 2 c.m. x chest cavity deep.
(21) A stab wound on right side abdomen at iliac fossa and outer side size 4-1/2 c.m. x 3 c.m. x abdominal cavity deep and intestines had protruded out.
(22) A cut wound on outer side of right side chest at middle size 3 c.m. x 1/2 c.m. x muscle deep.
(23) A cut wound on back of right shoulder size 4 c.m. x 2-1/2 c.m. x muscle deep.
(24) A cut wound on back of left side chest at scapular bone area size 6 c.m. x 2-1/2 c.m. x soft tissues and bone was cut and chest cavity deep.
(25) A cut wound on back of right side chest at middle size 6 c.m. x 2--1/4 c.m. x soft tissues and bones were cut and chest cavity deep.
(26) A stab wound on back of chest right side at middle near midline size 2-1/2 c.m. x 1-1/4 c.m. x chest cavity deep.
(27) A cut wound on back of right side chest below lower ribs level, size 4 c.m. x 1-1/2 c.m. x abdominal cavity deep.
(28) A cut wound on right buttock size 3 c.m. x 1 c.m. x muscle deep.
(29) A cut wound on back of right thigh at middle size 6 c.m. x 1-1/2 c.m. x muscle deep.
(30) A cut wound on front of left knee size 6 c.m. x 1-1/2 c.m. x muscle deep.
11. In the opinion of the Medical Officer, the death of the deceased had occurred due to shock and extensive internal and external haemorrhage and injuries to the brain as a result of the above injuries which were collectively sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and had been caused by sharp--edged weapon. The probable interval that elapsed between the injuries and the death was immediate and between the death and post- mortem examination within 24 hours Ex.P.B. Is the post-mortem examination report.
12. The appellants pleaded not guilty to the charge framed against them under sections 452/34 and 302/34, P.P.C. When examined under section 342, Cr.P.C., they denied the prosecution case and the recoveries attributed to them. Ramzan, appellant pleaded as follows:- "I and Muhammad Ali deceased were jointly cultivating the same land. Muhammad Ali deceased and other members of the family wanted that I should sell the land to them but I refused to do so.
Lon$ time prior to the occurrence I left the Haveli along with my family and started living with my another brother Ibrahim at Andhian Wali Haveli. There we started cultivating land belonging to Ahmad Khan. We came to know about this occurrence through Muhammad Latif early in the morning, then we went to Raja Jang and informed about the occurrence to Mst. Inayat Bibi, Mst.
Surriya Bibi, Nawab, Tai Muhammad and others, then we went to the P.P. Raja Jang and reported the matter. The police accompanied us to the place of occurrence after an hour of our reaching the spot. A doubt was created that Muhammad Ali and Imanat Ali were murdered by the persons belonging Surtian Wali Haveli. The police arrested Imanat Ali, Rafique, Muhammad Rashid s/o Muhammad Shafi, Bagg and one Bashir s/o Manda. The police let off the actual culprits with the connivance of the complainant party for receiving the illegal gratification of Rs.16,000.
Subsequently we were involved in the instant case on the asking of Mst. Inayat Begum, Mst. Surriya Begum, Nawab and other P.Ws. This case has been staged against me due to enmity. Many persons appeared in my defence before the police and their statements were recorded by the D.S.P. I was at that time at Raja Jang when the incident took place. My brother Muhammad Ali deceased was a man of bad character. He had illicit relations with the wife of Nawab P.W. And the sister of one Imanat Ali. The persons belonging to Surtian Wali Haveli also stole away the bullock belonging to Muhammad Ali some time prior to the occurrence and they were also inimical towards Muhammad Ali and his son Imanat Ali. It was a blind murder case. We have been falsely implicated in this case due to enmity with Mst. Inayat Begum and P.Ws:'
13. The plea of Sheeda appellant was as under:- "The family of Muhammad Ali deceased was inimical towards me and my co-accused because the), wanted to take over the possession of the land which was in the sare of my father Ramzan accused who refused to do so and long ago prior to the occurrence left the Haveli and started living at Andhian Wali Haveli with another brother of my father Ibrahim and started cultivation there. We came to know about this occurrence early in the morning when my father was at Raja Jang. This incident was narrated to us by Latif. We went to Raja Jang and informed about the occurrence to Mst. Inayat Bibi, Mst. Surriya Bibi and Taj Muhammad and other relations. Then we returned to the P.P. Raja Jang and reported the matter and along with the police early in the morning we went to the place of occurrence where we were hauled up due to the enmity with the P.Ws. It was night occurrence. Nobody has seen the occurrence and due to the enmity we have been falsely implicated in this case:'
14. Feeka appellant adopted the statement of Sheeda appellant. Sheeda and Feeka did not adduce any evidence in defence. However, Ramzan appellant tendered in evidence affidavits Exs. D.E. To D.M. Of certain persons in support of his plea.
15. At the trial, the prosecution in support of its case examined eleven witnesses who included Dr. Sadiq Hussain Naqvi, P.W. 1, who performed post-mortem examination on the dead bodies of the deceased, Muhammad Rafique P.W.6 who deposed to the recoveries at the instance of the appellants and Mst. Inayat Begum P.W. 7 and Mst. Surriya Bibi P.W.8, widows of Muhammad Ali and Amanat Ali deceased respectively who testified to the motive and also furnished the ocular account. Taj P.W.9, about ten years old grandson of Muhammad Ali deceased also deposed to the occurrence. The learned trial Court after appraising the evidence, believed the prosecution case and recorded convictions and sentences of the appellants as mentioned above.
16. As regards the motive, Mst. Inayat Begum P.W.7 deposed that the appellants used to reside in the Haveli adjacent to their own Haveli situate in the fields. There was some dispute over land between the parties. About nine or ten months prior to the occurrence, in an altercation between Muhammad Ali deceased, her husband and Ramzan appellant, the former sustained injuries.
However, a compromise was effected between the two. About one and a half months before the occurrence again the two quarrelled over the partition of land. According to her, it was as a seql4el of the above dispute that the appellants committed the crime. She, however, did not elaborate the nature of the dispute or how much land was involved in the dispute. Mst. Surriya Bibi P.W. 8 also testified to the above motive. In her cross-examination, she said that she was not aware as to how much land was the subject of the dispute or how much land was in possession of the deceased and how much in that of the appellants. Muhammad Din, Patwari of the Halqa was examined as P.W.4. He said in his cross---examination that the land of Muhammad Ali deceased and that of Ramzan appellant was situate in a joint Khata but they used to cultivate their shares separately and he did not hear any dispute between them over the land. The evidence of Mst. Inayat Begum P.W.7 and Mst. Surriya Bibi P.W.8 on the motive besides itself being inherently weak is further diluted by the testimony of the Patwari. No witness was examined in support of the allegation that about nine or ten months and again about one and a half months prior to the occurrence, the parties had quarrelled over the partition of their land. If there had existed any such dispute or altercation had taken place between them, some independent witness would have been available to support the same at the trial. Moreover, the number of the injuries found on the dead bodies of the deceased manifestly betray that the crime was committed by persons who harboured a very deep, a very intense enmity. A person even if having a dispute with his brother over partition of land would not normally be rendered so devoid of compassion as to commit his murder so callously, so ruthlessly as in the present case. Therefore, the motive for the crime as alleged by the prosecution cannot be relied upon.
17. So far as the recovery of the incriminating articles is concerned, A.S.I. Muhammad Aslam P.W.10 deposed that he arrested Sheeda and Feeka appellants on 5th of July, 1982 and on 7th of July, 1982 both of them while in custody separately got recovered blood-stained hatchet P.7 and blood- stained spear P.8 respectively from their residential Kotha and he took them into possession vide memo. Exs.P.H. And P.J. According to him, he arrested Ramzan appellant on 11th of July, 1982. A.S.I.
Muhammad Akram P.W.5 stated that on 16th of July, 1982, Ramzan while in custody got recovered blood-stained hatchet P.6 from the same residential Kotha and he took it into possession vide memo. Ex.P.F. The above recovery memoranda were attested by Muhammad Rafique and Sher Muhammad. Both of them are the brothers of Mst. Inayat Begum P.W.7 as admitted by her in her cross-examination. Sher Muhammad was given up at the trial as having been won over. Rafique P.W.6, however, supported the recoveries. He is a resident of District Vehari while the recoveries were effected from the area of village Raja Jang situate in Kasur District where the occurrence took place. No one from the locality of the place of recoveries was associated to witness the same.
Therefore, the testimony of Rafique P.W. As rightly observed by the learned trial Court cannot be safely relied upon. The statements of A.S.I. Muhammad Aslam P.W.10 and A.S.I. Muhammad Akram P.W. 5 also become dubious in view of the statement of Muhammad Rafique P.W.6 in his cross- examination that the Thanedar after obtaining his thumb-impressions and those of Sher Muhammad on the recovery memoranda had gone to the place of recoveries and that after obtaining their thumb-impressions on the recovery memoranda, they were let free by the Thanedar. Besides, the occurrence took place on the night between 1st and 2nd of July, 1982. Out of the appellants, two were arrested on 5th of July, 1982 and the third on 11th of July, 1982. It is highly, improbable that during the interval between the commission of the offence and their arrest, the appellants scrupulously kept the articles in' their house in-tact. In these circumstances, these recoveries also cannot be accorded any corroborative value.
18. The ocular account furnished by Mst. Inayat Begum P.W.7, Mst. Surriya Bibi P.W.8 and Taj P.W.9 also bristles with improbabilities. The' statement of Taj P.W.9 was not relied upon by the learned trial Court on the grounds that his name was not mentioned in the F.I.R. Ex.P.K. As an eye-witness and that he admitted in his cross-examination that at the time of occurrence he hid himself under a cot out of fear and that he was tutored by his counsel for five times and he had made the statement according to what he was tutored. According to the F.I.R. Ex.P.K., Nawab Din and Khushi Muhammad were also present at the spot at the time of occurrence and after the occurrence Mst.
Inayat Begum went to the police post in the company of Khushi Muhammad to lodge a report. As already mentioned above, Nawab Din is the son and Khushi Muhammad is the son-in-law of Muhammad Ali deceased. The fact that they were given up at the trial as having been won over recoils on the whole of the prosecution case. Mst. Inayat Begum P.W.7 said in her cross- examination that after the occurrence, she had gone to Police Post Raja Jang all alone. If Nawab and Khushi Muhammad had been present there at the time of occurrence, they Or either of them would have gone or accompanied Mst. Inayat Begum P.W. To the police post to report the occurrence. A.S.I. Muhammad Aslam P.W.10 who recorded the F.I.R. Stated that when Mst. Inayat Begum came to the police post, she was accompanied by some persons. He did not say that those persons included Nawab or Khushi Muhammad. The A.S.I. Would not have omitted to mention the names of Khushi Muhammad and Nawab being close relatives of the deceased if they or any of them had accompanied Mst. Inayat Begum to the police post. Moreover, in the presence of Nawab and Khushi Muhammad, Mst, Inayat Begum would not have felt the necessity of herself going to the police post. It means that Khushi Muhammad and Nawab were not present at the spot at the time of occurrence. The presence of Mst. Inayat Begum and Mst. Surriya Bibi P.Ws. Also at the spot at the time of occurrence does not appear to be above board. Mst. Inayat Begum P.W. Stated in her cross-examination that at the time of occurrence, she and Mst. Surriya Bibi did not intervene but only raised hue and cry and after the occurrence, both of them lifted Amanat deceased and put him on a cot and she touched the dead body of Muhammad Ali deceased but in spite of that their clothes did not become blood stained. This conduct is highly unnatural. Mst. Inayat Begum was the wife of Muhammad Ali and Mst. Surriya Bibi was the wife of Amanat, son of Muhammad Ali. If they had been present, they in view of their relationship with the deceased would naturally have jumped in the fire to save the deceased or at least would have raised such out-cries as would have attracted people from the adjoining Havelis. She admitted that none came from the adjoining Havelis. Even they did not let their clothes to become blood-stained when they lifted one of the deceased and one of them touched the body of the other deceased after the occurrence. This fact alone is sufficient to negate their presence at the spot. It appears from the number of the injuries found on the dead bodies that the assailants committed the crime leisurely and uninterruptedly, without any fear of detection. In the presence of the witnesses, the assailants would not have perpetrated the crime in such a fearless manner. The ambient circumstances indicate that it was a blind murder. This inference is fortified by the statement of Taj P.W. 9 in his cross-examination that Mst. Inayat Begum, Mst. Surriya, Nawab, Ibrahim and Khushi Muhammad used to reside at Raja Jang during the days of occurrence and Ibrahim, Mst. Inayat Begum, Mst. Surriya Bibi and Nawab came to know of the occurrence on the following morning of the night of occurrence. From the statements of Mst. Inayat Begum P.W. 7 and Mst. Surriya Bibi P.W.8 in their cross-examination also, it transpires that their normal residence was at Raja Jang. The other circumstance which militates against the veracity of the eye-witnesses is that Feeka at the time of occurrence was only 12 or 13 years old. It is hard to believe that Feeka at that age would have been associated in the commission of the offence. For all these reasons, implicit reliance cannot be placed on the ocular account.
19. In the result, we hold that the prosecution has failed to bring home to the appellants their guilt beyond doubt. Accordingly, we accept this appeal, set aside the convictions and sentences of the appellants and giving them the benefit of doubt acquit them. Ramzan and Rashid alias Sheeda are in jail. They shall be released forthwith if not wanted in any other criminal case. The sentence of death imposed on them is not confirmed.
20. Rafique alias Feeka is on bail. He is discharged from his bail bonds.