ATAULLAH SAMAD, J.-The six appellants, namely, Muhammad Aslam, Abdul Ghani, Akbar Ali, Ghulam Ahmad, Ghaus Muhammad and Ghulam Khan have been convicted under sections 148 and 302/149, P. P. C. By Sheikh Bashir Ahmad, Additional Sessions Judge, Sialkot. They were awarded a sentence of three years' R. I. Each on the first count. Akbar Ali was sentenced to death and the other appellants to transportation for life, on the second count. They have filed Cr. Appeal No. 86 of 1970 against their convictions and sentences. Akbar Ali was also tried separately for an offence under section 13 of the Arms Act and was awarded a sentence of three years' R. I. Against this latter conviction and sentence he has filed Cr. Appeal No. 13:4 of 1970. There is also a usual reference under section 374, Cr. P. C. Namely, Murder Reference No. 76 of 1970 before us foe confirmation of the death sentence passed on Akbar Ali. This order shall dispose of all the three matters.
2. Akbar Ali, Abdul Ghani and Ghulam Ahmad alias Ghulam Nabi alias Gami appellants are brothers Inter se. Muhammad Aslam is the son of Abdul Ghani appellant. Ghaus Muhammad is their collateral. Ghulam Khan Pathan is not related to the other appellants, but is said to have joined hands with them for motives which remain undisclosed.
3. The occurrence took place on 21st of January 1969, in village Verowala, Police Station Sambrial in the District of; Sialkot. According to the F. I. R. The appellants other than Ghulam Khan were armed with dangs. They made a concerted attack on Bashir deceased. Ghulam Khan according to the F. I.
R. Is said to have arrived with Sardar (P. W. 11) at the spot. The allegation against him is that he was firing from his revolver in order to deter the eye-witnesses from possible intervention.
4. Akbar Ali appellant had purchased two and a half minis of wheat from Bashir deceased but had not paid for it. About a fortnight before this occurrence, Akbar came to the well of the deceased and took away his two bullocks in the presence of Mst. Sardar Bibi (P. W. 9) the mother of the deceased alleging that Bashir owed him a sum of Rs. 200. He is said to have disposed of these bullocks for Rs. 900. The record does not show that the deceased took any action against this act of highhandedness on the part of Akbar Ali appellant.
5. On the day of occurrence the deceased had gone for a hair cut at Adda Adamke where he met Akbar appellant and, demanded from him the money that had been realised on account of the sale of -the bullocks. Akbar promised to pay the money on the same day. The deceased then returned to his house and while he was taking his meals, Ghaus Muhammad appellant came there at about 12 noon and asked him to accompany him to receive his money from Akbar Ali appellant after settling the accounts. Mst. Sardar Bibi (P. W. 9) the mother of the deceased and Mst. Surayya Bibi (P. W. 10) the sister of the deceased followed him. In the way they met Muhammad Shafi (P. W.
12), a paternal uncle of the deceased. The mother had said that she followed her son because she was apprehensive of some danger to him at the hands of the appellants. His sister, however, said that they had followed him so that he might not make any undue concession to Akbar Ali appellant in settling the accounts. When the deceased and Ghaus Muhammad reached near the field of Ghulam Rasul, Ghaus Muhammad appellant clasped him and shouted for his companions. The other appellants then came and started belabouring the deceased.
6. I have said above that according to the first information report all the appellants except Ghulam Khan Pathan were armed with longs. In the evidence, however, it is stated that Akbar and Ghulam Ahmad alias Gami were armed with Bangs while Aslam alias Achha was armed with a ghawaa.
Ghant accused was, armed with a hatchet like dung. It may also be noted that while in the F. I. R. It is said that Ghulam Khan Pathan arrived at the stage when Sardar P. W. Appeared at the scene but in the narration of facts before the Court, the witnesses said that all the accused had come together.
7. After receiving the injuries Bashir fell down, He was dragged to the Shatala field of Abdul Ghani appellant and was given blows. He was further taken to another Shatala field belonging to the same appellant where he was given more beating and ultimately he was taken to the tubewell of Akbar appellant where further beating was administered to him. Sardar P. W. Was returning from village Pasia when he happened to see the occurrence. He is a neighbour of the deceased and is s co-sharer in the well where the deceased had cultivation.
8. The F. I. R. Exh. P. N/1 is based on the statement of Mst. Sardar Bibi (P. W. 9) recorded by S. H. O.
Anwar-ul-Haq (P. W. 14) at 7-45 p. m. In the Patwarkhana of village Virowala. This police officer was on patrol duty and Mss. Sardar Bibi after learning that he was in the village, lodged the report. The Investigating Officer went to the well of Akbar appellant where the dead body of Bashir deceased was lying. After preparing the necessary documents he sent the dead body for post-mortem examination under the escort of Haider Khan Constable (P. W. 1).
Ghulam Nabi appellant produced a blood-stained moongli Exh. P. 5, Akbar Ali produced pistol Each.
P. I and sang Exh. P< 6, Ghaus Muhammad produced a Bang Exh. P. 7, and Aslam produced a ghawan Exh. P.
3. All these articles were found to be besmeared with human blood by the Serologist. These recoveries were effected on 22nd of January 1969, and were testified by Muhammad Shafi (P. W. 12) and Lai Din (P. W. 13). Ghulam Khan Pathan was arrested on 4th of February 1969. An application was made for his Identification parade and Syed M. A. Niazi, Naib- Tehsildar (P. Vii. 3) fixed it far 14th of February 196). The police informed the said officer on that date that the presence of the witnesses could not be secured and the identification parade was held on the 18th of February 1969. All the prosecution witnesses identified Ghulam Khan Pathan as the person who was firing from his pistol at the time of the occur--rence. Ghulam Khan said that he had been shown to the witnesses and that he had been identified because he had a very prominent mark between his eye-brows.
9. According to the medical opinion, the deceased had twenty-seven blunt weapon injuries on his person. The doctor opined that the time between the injuries and death was three to six hours. He also found that the stomach contain six ounces fluid.
10. The plea of the accused was thatBashir deceased was abad character and he heed committed '& theft in the shop of Akbar Ali who is a cloth merchant. The goods worth Rs. 8,000 were stolen but the police had not taken action. On the day of the occurrence Akbar Ali was coming in a tongs when Bashir deceased stet him at Adda Adamke asked the tonga driver to stop the tongs. He came near Akbar Ali and aimed the pistol at him. On the intervention of Ghulam Rasul and Faiz Tonga--wala, Akbar Ali was saved. He returned from Daska at about 3-30 p. m. Whey he learnt that Bashir had been done to death. Ghulam Ahmad alias. Gami appellant who is a brother of Akbar Ali, handed over revolver Exh. P. 13 to him saying that this had been snatched from Bashir when he was firing act Aslant. Akbar Ali admitted that he had produced this revolver before the investigating Officer. Aslam and Ghulam Nabi (Gami) stated just on the day of the occurrence Bashir deceased came to Aslant and asked about the whereabouts of Akbar Ali appellant and on his expressing ignorance about this, attacked him with a revolver and followed him. During this pursuit the servants of the appellant caught hold of Bashir and Ghulam Ahmad (Gami) gave so a blows on his legs. In the meanwhile, some other persons came and caused injuries to Bashir in order to save Aslam, and as a result of these injuries he lost his life. Ghaus Muhammad appellant stated that his father had fought an election against the brothers of Dr. Sultan Ahmad and had been declared successful. It was on this ground that he had been involved in the case. He maintained that Bashir was a bad character and was beaten by Dr. Sultan Ahmad and his family for their own purpose3.
Actually, the main defence of the appellants was that they had been involved on account of the hostility of Doctor Sultan Ahmad towards them. There is, however, no positive evidence of the fact that Doctor Sultan Ahmad influenced the course of investiga--tion. Ghulam Khan appellant stated that he worked at a tube--well In Kamoke and as he showed his ignorance as to the where-- abouts ref two absconders, the Sub-Inspector involved him. He further stated that he was brought to Sambrial and shown to the witnesses in this case. Aslant appellant was found to have the following injuries on his person: --
(1) A reddish bruise 3/4' x -- on the back of left elbow joint.
(2) An abrasion 2/3' x. -- on the left side of the abdomen, 2-- from the umblicus and 2' from the midline.
His case was that these injuries had been caused by the bullet fired from the revolver of the deceased. The doctor however, was of the opinion that these injuries had been caused by a blunt weapon. He did not find any hole or tear on the vest of Muhammad Aslam.
11. The leaned Additional Sessions Judge was impressed by the evidence of the eye-witnesses particularly that of Sardar (P. W. 11) whom he held to be an independent witness. He further observed that the recoveries of various weapons in the case corroborated the prosecution story.
On a deeper analysis of the evidence we find that the conclusions arrived at by the learned Additional Sessions Judge are not correct.
12. There is sufficient material on the record to show that the F. I. R. Was recorded after preliminary investigation. We, find it in the statement of Haider Khan (P. W. 1) that Alit, A Sardar Bibi P. W. Had visited the Police Station and it was after her visit that the Sub-Inspector accompanied by some constables including Haider Khan reached the spot. Then again, we find in the statement of Mir.
Sardar Bibi that the Thanedar went to the place of occurrence before recording her statement. She also said that the police had prepared some papers at the spot in the light of a lantern. It is, therefore, not difficult to infer chat this accidental presence of the Sub-Inspector at Virowal on patrol duty is not as convincing as it is being given out. There is a clear indication on the record that the F. I. R. Was drawn up after deliberations.
13. The doctor who performed the post-mortem examination found at the time of the post-mortem examination the dead body had an empty bandolier around it. The encounter between Akbar and the deceased at Adda Adamke is admitted by both the parties. We find a note "In Zimni No. 13 marked Exh. D. B. 'that according to Sardar Ahmad Patwari the deceased bid borrowed five live cartridges of a revolver from one Master Nafia Ahmad and was wearing a revolver at that time. The Patwari at the trial went back on this statement. The fact that the deceased borrowed five live cartridges may not be true, but we are sure that the deceased was not wearing an empty bandolier as an ornament. The story of the defence that the revolver eras snatched from the deceased receives support from his fact.
14. The stomach of the deceased contained fluid and the allegation made in the F. I. R. That he was taking his meals when Ghaus Muhammad came to decoy him is belied by the medical opinion. No solid food was found therein. The witnesses change their position at the trial and said that he was about to take his meals when Ghaus Mohammad came to decoy hire. This change was made in view .Of the medical opinion regarding the emptiness of the stomach of the deceased.
15. The conduct of the eye-witnesses in this case is strange. Three of the witnesses were none else than the mother, sister ante the paternal uncle of the deceased. They stood still and did nothing to save his life. True that according to the statement of these witnesses at the trial, Ghulam Khan was firing from leis revolver, but according to the F. I. R. He came to the spot when the fight had already started. According to Mst. Strrayya Bibi (P. W. 10), the deceased was taken away front his house at 12 noon. She said that the deceased was given beating right from this time till the evening, When he was removed from the Shatala field, the witnesses got an impression that he was already dead, but even then they did not stir from their places and try to inform the people in the village about this incident or to ask for some help for be poor victim. If the deceased was being continuously beaten from 12 till the dusk, there would have been innumerable injuries on his person.
16. It appears that after the encounter with Akbar at Adamke Adda, the deceased never came back to his house. The story that Ghaus Muhammad had come to decoy the deceased from his house does not carry conviction. While Mst. Sardar Bibi and Mst. Surayya Bibi said that they remained at the spot till darkness set in. Muhammad Shafi P. W. Stated in his cross---examination that the last blow by Akbar was given to the deceased at about degarwela. If this is so, it is not known what these witnesses were doing after the matter had furnished at degarwela. The village Abadi, shown at No. 7 in the plan which is at a distance of about one furlong from the place of occurrence. The witnesses say that they were raising a hue and n cry all along and it is strange that no one from the village was attracted. Even if the cries of the witnesses fell on deaf ears, one of them Muhammad Shafi could have run back to the village and bring some help for the rescue of the victim.
17. Sardar has been described as an independent witness by the trial Court. He is a neighbour of the deceased and was also a partner in the well which was jointly owned by the deceased along with others. He said that he was returning from village Pasia where he had gone to see a buffalo. He had not taken any money to purchase the buffalo. After the incident, he pur--poselessly stayed in the graveyard for some time and then proceeded to his well. The village falls in the way and he met a number of persons but did not inform anybody about the incident. He proceeded straight to his well where he found some persons and told them of the incident. He then proceeded straightaway from the well to village Ssdake Chak in Gujrat District where his sister resides. He admitted that on the way to his destination, Police Station Sambrial falls on the road-side. He did not care to stop there for a few minutes and inform the police about this incident. He appeared before the police on the fourth day of the occurrence. The disappearance of Sardar Khan after seeing this incident is not only a negation of his sense of good neighbourliness but also indicates that this witness was not present at the time of the occurrence and his name was given with the confidence that he would make a statement in favour of his neighbour.
18. There was no description of Ghulam Khan appellant in the F. I. R. He was described as a Pathan.
No empties were found at the spot. The revolver alleged to have been used by him was recovered from Akbar appellant. According to the accused this revolver belonged to the deceased. Ghulam Khan was arrested on 4th of February 1969, and it is not known for what reasons the Naib-Tehsildar who ultimately conducted the identification parade, fixed 14th of February, for identification. The police during these ten days were not able to procure the presence of the witnesses and the identification was held on the 18th of February 1969. Since this identification was held about a fought after his arrest and possibility cannot be excluded) that the witnesses had seen this man, we do not place any reliance on this identification parade. Ghulam Khan Pathan said that there was a prominent scar on his forehead and this could have made the witnesses to identify him. He had no connection with the other appellants. He was working at a tubewell and his plea was that he bad been falsely involved. According to the F. I. R. He came at the stage when the fight was on and even it he was present and had fired, it could be argued that he did so in order to deter the accused from carrying on their nefarious design.
19. It has been found that the F. I. R. Wets drawn up after preliminary investigation. The entire prosecution case because doubtful. The conduct of the eye-witnesses is quite unnatural and it cannot be believed that they stood from 12 noon till the setting of the sun at the spot watching motionlessly the violence, being done-to the deceased. The evidence against the appellants is, therefore, unconvincing and unbelievable. We have no alternative but to allow this appeal. The learned counsel for the State said that the defence set up by Aslam appellant was false because the injuries on his person had not been caused by the firearm, but this argument does not carry the case of the prosecution any further. The prosecution have to prove their case beyond any reasonable doubt and any infirmity in the case of the defence will not lend support to the case of the prosecution. We, therefore, set aside the convictions and sentences passed on the appellants and direct that they shall be released forthwith unless they are lawfully required to be detained in connection with some other case.
20. The result is that both the appeals are allowed. The sentence of death passed on Akbar Ali is not confirmed.