RUSTAM S. SIDHWA, J.--Sher Muhammad and Muhammad Shafi were tried by an Additional Sessions Judge of Sahiwal under section 302/34, P.P.C. For the murder of Ghulam Mustafa, deceased. Whilst Muhammad Shafi was acquitted, Sher Muhammad was convicted under section 302, P.P. C. And sentenced to death, subject to confirmation by this Court, and to pay a fine of Rupees five thousand (Rs.5,000) or, in default thereof, to undergo further rigorous imprisonment for two years, if the death sentence was not confirmed. The fine, if realized, was ordered to be paid to the legal heirs of the deceased as compensation. The appeal (Criminal Appeal 46 of 1983) preferred by Sher Muhammad convict against his conviction and sentence and the reference submitted by the trial Judge for the confirmation of the death sentence awarded to the convict, are both now before us for disposal.
2. The brief facts of the case are that Ghulam Mustafa, deceased, brother-in-Law of Muhammad Aslam complainant P. W.5, was employed in the Nursing Medical Corps of the Pakistan Army at Combined Military Hospital, Okara Cantt. On 13-3-1981 at about 5 p. m. Ghulam Mustafa, deceased, came to his house in Chak No. 22/14-L on one day's leave. At about 6 p.m. Ghulam Mustafa deceased, went outside his house to ease himself and when he reached near the house of Kameer son of Basara Kathie, Sher Muhammad, accused, armed with a hatchet, and Muhammad Shafi, accused, empty-handed, who were sitting concealed, ambushed the deceased. When Ghulam Mustafa, deceased, came near, Muhammad Shafi, accused raised a Lalkara that he should be killed, whereupon Sher Muhammad, accused, gave a hatchet blow to Ghulam Mustafa deceased hitting him on his head. On the alarm of the deceased, Noor Muhammad Lambardar (won over P.
W.) and Ahmed P. W.6 came running and rescued Ghulam Mustafa, deceased, by entreating the accused. Ghulam Mustafa, deceased, was removed to the Civil Hospital Kassowal, where he was medically examined by Dr. Rana Allah Ditta P.W.1, who found an incised wound on his head, which was declared grievous.
The motive for the offence was that Ghulam Mustafa, deceased, had divorced Mst. Jannat Bibi, sister's daughter of the two accused, which had provided a grouse to the accused persons to kill Ghulam Mustafa by acting in concert.
3. Muhammad Aslam complainant P. W.5 proceeded to Police Station Shah Kot on 14-3-1981, where he lodged F.I.R. Exh.P.B. At 6-30 p.m. Which was recorded by Muhammad Siddique M. H. C. P. W.2.
4. The Investigating Officer proceeded to the spot from where he recovered blood-stained earth from the place of occurrence, vide memo. P.C. After having recorded the statements of the witnesses and prepared the rough site plan, he proceeded to the Combined Military Hospital at Okara, when he learnt that Chulam Mustafa had been transported there. However, when the Investigating Officer reached the hospital, he found that the deceased had already died and Dr. Major Mirza Muhammad Dawood P. W.10 had already conducted the post-mortem examination at 12-30 noon, where he had found the same incised injury on his head, as the doctor at Kassowal had found earlier.
5. On 15-3-1981, both the accused were produced by Noor Muhammad Lambardar (won over P. W.) and Holey Khan before Abdul Razaq S. I. P. W.9. The same day, Sher Muhammad accused, led to the recovery of a blood-stained hatchet P. W.4, which was taken into possession vide memo. P.D., in the presence of Ghulam Sarwar P. W.
7. Abdur Razaq S.I. P.W.9 and Muhammad Ameer (given up P.W.).
6. At the trial, the prosecution produced Muhammad Aslam P. W. 5 and Ahmad Bakhsh P. W.6 in proof of the motive and the ocular testimony Ahmad Bakhsh P.W.6, Ghulam Sarwar P.W.7 and Abdur Razaq S.I. P. W.9 in support of the recoveries and Dr. Rana Allah Ditta P. W.1 and Dr. Major Mirza Muhammad Dawood P.W.10 in corroboration of the medical testimony.
7. Both the accused in their statements under section 342, Cr.P.C. Denied all the accusations that were levelled against them, including the recovery alleged to have been effected at the instance of Sher Muhammad. Both the accused stated that it was an unseen murder which took place during the dark hours of the night and they had been falsely involved due to enmity and suspicion and that the prosecution witnesses had deposed against them falsely. Sher Muhammad, accused, tendered an affidavit of Muhammad Aslam complainant P.W.5, which he had executed on 6-6- 1982.
8. The learned trial Judge, relying upon the motive, the ocular account, the recovery and the medical testimony, convicted and sentenced Sher Muhammad, accused, as stated in para. 1 above, and acquitted Muhammad Shafi.
9. We have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The evidence as regards motive is furnished by Muhammad Aslam complainant P. W.5 and Ahmad Bakhsh P. W.6. In the F.I. R. Exh. P. B. Lodged by Muhammad Aslam P.W.5, only one motive was given, namely, that Ghulam Mustafa, deceased, had divorced his wife Mst. Jannat Bibi who happened to be the niece of Sher Muhammad and Muhammad Shaft, accused. This motive is also supported by Ahmad Bakhsh P.W.6. Nothing has been brought out on the record to suggest that the deceased did not divorce his wife. This motive, therefore, stands established. At the trial, Ahmad Bakhsh P.W.6 also introduced a second motive, namely that on the day of occurrence after the Jumma prayers, Ghulam Sarwar P.W.7, the father of the deceased, and the two accused had quarrelled in the village mosque, where the accused had stated that as Ghulam Sarwar's son had divorced their niece, they would teach him a lesson for it. In cross- examination Ahmad Bakhsh P.W.6 submitted that he and a number of other people who were present in the mosque had separated the accused and Ghulam Sarwar P.W.7. Strangely Ghulam Sarwar P.W.7 does not support the story. This motive, therefore, cannot be accepted, being introduced at a late stage. We would, therefore, hold that whilst the first motive stands established, the second, which was set up at the trial stage, cannot be accepted with any degree of safety.
10. The ocular account in this case is furnished by Muhammad Aslam complainant P.W.5 and Ahmad Bakhsh P.W.6. Their version of the occurrence already stands reproduced in para. 2 above and need not be repeated. Both are not independent witnesses, but happen to be the brothers-in- law (Hamzulf) of the deceased. Noor Muhammad Lambardar, who apparently was an independent witness, is not produced, as having been won over. The evidence of the two eye-witnesses does not inspire confidence. Muhammad Aslam P. W.5 resides in Chak No. 5/8 A.R.(Kot Amarat) which is fifteen miles away from the place of occurrence. Likewise, Ahmad Bakhsh P.W. Resides in village Tolamba, which is twenty miles from the place of - occurrence. Both of them have not explained how they came to be present in Chak No. 22/14-L, where the incident occurred, or what brought them there. Their narrative only starts with the story that they happened to be present at the Baithak of Noor Muhammad Lambardar (won over P. W.) smoking Huqqa just before the time of occurrence. Ahmad Bakhsh P.W. 6 in cross-examination admitted that he had no business with Noor Muhammad Lambardar (won over P.W.) on the day of occurrence to go to his Baithak. Their presence in Chak No. 22/14-L remains unexplained. If they were so present, they would have accompanied Ghulam Mustafa injured to the Primary Health Centre, Kassowal, and at least one of them would have rushed to Police Station Shah Kot to lodge the F.I.R. Ahmad Bakhsh P. W.6 in cross- examination states that after the occurrence, when Ghulam Mustafa injured P. W. Was removed to the hospital, he went to his house. It is surprising that he would have gone to his house immediately after the occurrence, when his wife's brother had been severely wounded in the head. Muhammad Aslam complainant P.W.5 admitted in cross-examination that he had executed affidavit Exh. D. A.
On 6-6-1982, but that the entire statement recorded therein was false. However, he had to admit in cross-examination that in the said affidavit he had stated that the occurrence was unwitnessed, as it had taken place during the dark hours of the night, and that he was not present at the time of occurrence and that he had come to know about the incident half an hour after the occurrence.
Strangely, whilst repudiating his affidavit Exh. D. A., dated 6-6-1982 at the trial, he furnished to the appellants another affidavit on 13-12-1982, which was tendered by Sher Muhammad, appellant, in his statement under section 342, Cr.P.C. Though the same was not exhibited by the-learned trial Judge. In view of the two affidavits submitted by Muhammad Aslam P.W.5 in favour of the appellants, he appears to be a liar of the first order and it is not possible to accept his statement, even subject to corroboration. As regards Ahmad Bakhsh P.W.6, he appears to have made improvements from the original case set up in the F.I. R. In the F.I.R. It was not stated that the two appellants passed by the house of Noor Muhammad Lambardar, where they were seen by him and his two companions. In his statement at the trial he referred to the said fact and also to the fact that Sher Muhammad, appellant, was carrying a Kulhari, which was not even stated by Muhammad Aslam P.W.5. In the F.I.R. It is mentioned that the deceased went outside his house to ease himself, whereas in his statement at the trial, Ahmad Bakhsh P. W. 6 stated that on their inquiry the deceased informed them that he was going to answer the call of nature. In the F.I.R. It is mentioned that the two accused, whilst acting in concert, were sitting concealed near the house of Kameer in order to ambush Ghulam Mustafa, deceased. In his statement at the trial Ahmad Bakhsh P.W.6 kept quiet about this fact. In the F.I.R. It is mentioned that when the deceased came near the two accused, Muhammad Shafi, accused, raised a Lalkara that he should be killed whereupon Sher Muhammad, appellant, inflicted the hatchet injury on him and thereafter, when the deceased raised alarm, he and his companions ran to rescue the deceased. At the trial Ahmad Bakhsh P.W. 6 stated that they heard alarm, whereupon he and his companions ran towards the spot and saw and heard Muhammad Shafi, accused raising Lalkara, followed by Sher Muhammad, appellant, who gave hatchet blow to Ghulam Mustafa, deceased, felling him to the ground. The contradictions in the story of Muhammad Aslam complainant P.W.5 and Ahmad Bakhsh P.W.6, the peculiar behaviour of the two witnesses at the spot and the absence of explanation on their part as to how they happened to be in the village on that date and time, clearly shows that they were not present in the village at the time of incident and that they appear to have been imported later to act as eye-witnesses. This also accounts for the fact why the F.I. R. Was lodged with delay. In these circumstances, we cannot accept the testimony of the eye-witnesses.
11. The evidence as regards the recovery of the blood-stained hatchet P.4 at the instance of Sher Muhammad, appellant, is furnished by Ghulam Sarwar P. W.7 and Abdur Razaq S.I. P. W.9. According to the testimony of the former, both the accused, whilst in handcuffs, were taken by the police to the Ihata, wherefrom the recovery of the hatchet was effected. In this view of the matter, the recovery cannot be accepted with any degree of safety.
12. The upshot of the above discussion is that though the motive stands proved and the medical testimony may also be taken as supporting the prosecution case, the ocular account and the recovery cannot be accepted with any degree of safety. In these circumstances, we are not in a position to maintain the conviction and sentence of the appellant.
13. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Sher Muhammad, appellant, is set aside. He shall be released forthwith, if not required in any other case.
The fine, if any recovered from him, shall be refunded to him. The death sentence is not confirmed.