The four appellants, Muhammad Nawaz son of Sher Muhammad, aged 50 years, Bahadur son of Ata Muhammad aged 25 years, Muhammad Nawaz son Sultan. Aged 32 years and Ali Muhammad son of Khan Muhammad, aged 30 years were convicted under section 302/34, P. P. C. And sentenced to transportation for life each on 7th July 1971, by Mr. Muhammad Azam, then Additional Sessions Judge, Sargodha, for committing the murder of Sohna (deceased) in furtherance of their common intention on the night between 10/11th November 1963, in village Gujranwala of Police Station Shahpur Sadar, District Sargodha. They have preferred the present appeal to question the correctness of this order.
2. Muhammad Yousaf, a brother of Ali Muhammad appellant, was murdered by Bakhsha (P. W. 17), a on of Sohna (deceased), and one Khan Muhammad in 1957; who were acquit--ted of that charge on their trial by the Sessions Court and in order to settle their account of this old blood-fend the four appellants are said to have joined hand in this act of retaliation and revenge.
3. It was alleged that said Bakhsha (P.W.17) his brother Saleh Muhammad (P. W. 15) along with their first cousin Haji Ahmad (P. W. 14) were sleeping inside the kotha on the eventful night while their father Sohna (deceased) had spread his cot in the courtyard in front of the door which they had left open for ven--tilation. At about 3 a.m. They woke tip on hearing the hue and cries of their father and on coming cut they saw the four appel--lants bodily lifting him away in the lane at a short distance from the door of their house. They had identified them as it was a moonlit night and tried to follow there, but Muhammad Nawaz (son of Sher Muhammad), who eras armed with a gun, fired a shot towards them which proved ineffective as they succeeded in taking shelter behind a wall near the turning of this lane. The appellants were then in front of the house of Jumma Kumar, where they threw down Sohna (deceased) on the ground anti Bahadur, Ali Muhammad 'and Muhammad Nawaz (son of Sultan), who were carrying hatchets hacked him to death. The alarm so raised attracted Dad and Mehra (not produced) who witnessed the occurrence. On their arrival they left Sohna (deceased) there and made good their escape. After their departure the aforesaid prosecution witnesses rushed to the spot, but Sohna had succumb--ed to his injuries in the meanwhile. Saleh Muhammad (P. W. 15) found a wooden plate of the butt-end of a gun (P. 1) lying near, which he took into his possession and leaving the others to guard the dead body he proceeded to the police station in a tongs and reaching, there at 5-0 a.m. Lodged his report Exh. P.
G. About this occurrence which was recorded by Riaz Hussain, A. S. I. (P. W. '16). He also produced the aforesaid wooden plate of the butt--end of a gun bearing No. 24934 before the A. S. I., which he took into his possession vide Exh. P.H.
4. After the formal registration of the case the Assistant Sub-Inspector proceeded to the spot and on reaching there despatched the dead body. To the mortuary of post-mortem examination after the necessary inquest vide Exh. P. L. And the injury statement Exh. P.M. He also secured blood- stained earth from underneath the dead body and sealed it into a parcel vide Exh. P. A. He also took into his possession gadela, pillow, parka, chadar, a pair of shoes, quilt and the cot from the court-- yard of the house of the deceased vide Exh. P. B.
He arrested the four appellants on the 12th of November 1963. Muhammad Nawaz (son of Sher Muhammad) appellant got recovered a gun along with a belt containing two live cart-- ridges and one empty cartridge as also the relevant licence from his house which were taken into possession vide Exh. P. C. The gun and the cartridges were sealed into separate parcels. Bahadur appellant got recovered a blood-stained hatchet from underneath the heap of Bhoosa lying in the courtyard of his house, which was sealed into a parcel vide Exh. P. D. Ali Muhammad appellant got recovered a blood-stained hatchet from his kotha, which was sealed and taken into possession vide Exh. P. E.
Muhammad Nawaz (son of Sultan) got recovered a blood-stained hatchet from his residential kotha which was taken into possession and sealed into a parcel vide Exh. P. F. He deposited all the sealed parcels with Muhammad Khan (P. W. 8), Moharrir Head Constable for safe, custody in the Malkhana on the same day which were sent to the Chemical Examiner and the Forensic Science Laboratory in due course. He also got prepared site plan Exh. P. K. And its duplicate Exh. P. K./1 from Sheikh Noor Muhammad Draftsman (P. W. 4) and after putting his notes in red ink on the same signed it in token of its correctness. According to the report of the Chemical Examiner Exh. P. O. The earth and the three hatchets were found stained with blood, but its origin could not be known as the report of the Serologist was withheld by the prosecution. Tajammal Hussain (P. W. 18) Fire-arms Expert had compared the '12 bore crime empty recovered from the belt taken into possession from Muhammad Nawaz appellant (son of Sher Muhammad) with the single barrel shot-gun No. 24934 and was of the opinion that it had been fired from that shot-gun vide his report Exh. P. W. 18/A. The basis of his examination is the composite micro-- photograph (Exh. P. W. 1R/8) indicating the points of similarity between them.
5. On 11th November 1963, at 3 p.m. Dr. Muhammad Sharif (P. W. 1) performed autopsy on the dead body of Sohna and found the following injuries vide Exh. P. N. :--
(1) An incised wound 2' x 1' cutting the main blood vessels and muscles on the right side of the neck.
(2) An incised wound 4' x 1--cutting the clavical and first rib on the right side of the chest just below the right clavical.
(3) An incised wound 1--' x 1' x cutting the right honorous bone cutting below the right shoulder- joint.
(4) An incised wound 2' x 1--' x skin deep, two inches below injury No. 3.
(5) An incised wound 4' x 1--x cutting the back bone and the muscles of the back on the middle of the back.
(6) An incised wound 6' x 1--' x cutting the right parietal bone and occipital bone on the right side of the head. There was 3' deep cut into the brain, the brain was going out through this bone.
Small intestines contained some digested food, large intestines some faecal matter and stomach some semi-digested food. The bladder was empty and the other organs were healthy. Death in his opinion was due to shock and haemorrhage caused by injury to the brain and the cutting of the main blood vessels on the right side of the neck. All the injuries were anti-mortem and were caused by sharp-edged weapon. Injuries Nos. 1 and 6 were indivi--dually sufficient to cause death in the ordinary course of nature. Time' between injuries and death was immediate and between death and post-mortem 13/14 hours.
6. The four appellants pleading not guilty to the charge denied the allegations averring their false implication in the case on account of enmity, but led no evidence in defence.
7. The prosecution in its turn had relied on the testimony of Haji Ahmad (P. W. 14), Saleh Muhammad (P. W. 15) and Bakhsha (P. W. 17) for the ocular account of the occurrence and Khan Muhammad (P. W. 13) and Riaz Hussain Assistant Sub---Inspector (P. W. 16) for the above recoveries in addition to the medical evidence, which has been accepted by the learned trial Judge in convicting the four appellants and assailed by their learn--ed counsel as insufficient to bring home the charge against either of them in view of the admitted enmity between the parties arising out of abduction, murder and security proceedings and lack of corroboration from any independent source. On being, taken through the record I am inclined to agree with these contentions of the learned counsel for the appellants.
8. Sultan (P. W. 12) had frankly conceded at the trial that Mst. Bawl, his wife, was a daughter of Sohna (deceased) and Muhammad Yousaf, a brother of Ali Muhammad, appellant, had abducted her on account of which said Muhammad Yousaf was murdered by his brother Khan and Bakhsha (P. W. 17) son of Sohna (deceased), who were acquitted after the trial by the learn--ed Sessions Judge. Sub-Inspector Shah Wali Khan (P. W. 6), who had registered this case about the murder of aforesaid Muhammad Yousaf had also confirmed that there was enmity about this abduction and the murder between the parties and he had taken preventive measures against them.
Ali Muhammad and Muhammad Nawaz (son of Sultan) appellants are cousins inter se and so are Bahadur and Muhammad Nawaz (son of Sher Muhammad) appellants. Mst. Sattan, the mother of Muhammad Nawaz appellant (son of Sultan) is pater--nal aunt of Bahadur appellant. The four appellants being; close relations of each other would be equally sharing the animus of Ali Muhammad appellant with the complainant party on account of the murder of their cousin, Muhammad Yousaf at the hands of Khan and Bakhsha (son of Sohna deceased). This Bakhsha is (P. W. 17) in this case while his brother Saleh Muhammad is (P. W. 15). They are the sons of Sohna (deceased) while Haji Ahmad (P. W. 14) was the nephew of the latter and the paternal cousins of the ether witnesses. They were thus related inter se as also with the deceased and were inimical to the four appellants. Their evidence in the above background could only be acted upon if it received corroboration from any independent source which is not at all forthcoming in this case.
9. The prosecution had sought to rely on the recovery of a gun along with two five cartridges arid one crime empty at the in--stance of Muhammad Nawaz (son of Sher Muhammad) appellant from his residential kotha vide Exh. P. C., the three blood-stained hatchets at the instance of Bahadur, Ali and Nawaz appellants vide Exhs. P. D. P. F. And P. F. Respectively. All these recoveries were effected in 'the presence of Khan (P. W. 13) and Ali, his sister's husband (not produced), but none of these articles were produced at the trial as -these were said to have been destroyed after the original decision of this case by a Tribunal under the Criminal Law (Amendment) Act, which was bet aside by this Court on a Writ Petition (No. 909 of 1965) these recoveries could therefore, be of no avail to the prosecution in this case. More--over the report of the Serologist about the origin of the blood allegedly found on the hatchets mentioned above was not produc--ed by the prosecution so it can be safely presumed that it did not support the prosecution about the origin of the blood. Reliance is placed on Khushi Muhammad v. The State (PLD 1966 Lah. 835).
10. Khan Muhammad (P. W. 13) solitary recovery witness was likewise inimical to the appellants as he admitted that his brother Dosa was murdered for which Muhammad and Ahmad were challaned and a daughter of said Muhammad is the wife of Muhammad Nawaz (son of Sultan appellant). There were other cases of murder between the family members of this witness and that of the appellants but he had tried to evade the suggestion put to him about it so his evidence did not inspire confidence which is even otherwise inconsistent with that of Riaz Hussain, Assistant Sub- Inspector (P. W. 16), who had effected the recoveries. According to Khan Muhammad P. W. He had joined the police party in pillage para at rotiwela, where the police was already present with the appellant and 15/20 other persons including Ali (given up P. W.) and had voluntarily joined the Assistant Sub---Inspector for the recoveries while the Assistant Sub-Inspector bad deposed that as soon as he reached the dera of the accused the two witnesses, namely, Khan Muhammad (P. W.
13) and Ali Muhammad (given up P. W.) arrived there and it was at his ask--ing that they agreed to attend the recoveries. The Assistant Sub---Inspector had also excluded the presence of any one else at the diara of Rehman Lambardar or that of the accused-appellants when he arrived there for the recoveries. He had thereby belied Khan P. W. In this respect in an attempt to shut out independent evidence about it. The third witness namely, Ali Muhammad did not enter the witness- box, so there was no satisfactory evidence about these recoveries.
11. The direct evidence supplied by Haji Ahmad, Saleh Muhammad and Bakhsha P. W. Having thus remained uncorro--borated from any independent source could not have been relied upon against the appellants in this case, especially when two independent witnesses Mehr and Dad, named in the first informa--tion report as having witnessed the occurrence had not been produced at the trial to support the prosecution. The statement of Sheikh Zulfiqar Ahmed Piracha, A.P.P. Had revealed that Mehr was produced before the Enquiry Magistrate and had not supported the prosecution. Over and above these infirmities in the pro--secution case the version of the occurrence put forth by the prosecution witnesses was extremely improbable and unnatural in the circumstances of the case. If the four appellants had entered the courtyard of the kotha of Sohna (deceased) unnoticed by any one with the intention of committing his murder there was no reason why they should have lifted him bodily from the bed and taken him in that manner through a populated lane where his hue and cry would have certainly attracted the residents of the locality to be testimony to this crime. They could have easily shut the three prosecution witnesses inside the kotha by chaining the door from outside and then finishing him in his bed with a few hatchet blows quietly slip away without being noticed by any one of them. They would never have used the gun as the report of the shot would wake up the entire mohallah who would have rushed out of their houses to interfere and save the deceased from their clutches and frustrated their mission. They could scare away these wit--nesses by oral threats pointing the gun at them. Anyhow the absence of any crime empty or any pellet from the alleged spot of this fire shot, although the gun was admittedly reloaded there, belied this part of the story.
It also does not appeal to reason that the three prosecution witnesses were present there on the eventful night as each of them had their own family living in separate houses quite removed from the scene of occurrence. Haji Ahmad (P. W. 14) resided at a dis--tance of only 1-- or 2 squares from that place and claimed to have come to the house of the deceased at digerwela to enquire about the health of the wife of Salehoon (P. W. 4) who was delivered of a child a few days earlier. It was strange why-he had stayed on during the eventful night. He had given altogether a different purpose for going to the house of the deceased in his statement be--fore the Tribunal where he had deposed that he had come to see the deceased only and slept there and had no special business. He had not at all mentioned in his statement about the illness of the wife of Salehon and having come there to enquire about her. This inconsistency in the, statement of Haji Ahmad P. W.
Would show that he had no business to be present to the house of Sohna (deceased) on the night of the occurrence. Saleh Muhammad (P. W. 15) and Bakhsha (P. W. 17) would certainly be living with their family members in their respective houses and not in the house of the deceased on the fateful night. If either of them, Saleh Muhammad and Bakhsha P. Ws. Had pursued the appellants in the lane they would never have spared them as they were the real enemies of the appellants. It was strange that they had contended themselves At firing only an ineffective shot to scare them away although they could have killed any of them to avenge the murder of aforesaid Muhammad Yousaf. In view of these inherent improbabilities and absence of independent corroboration, implicit reliance could not be placed on the evidence of the three prosecution witnesses in this case so the conviction of the appellants could not be sustained. I have, therefore, to accept this appeal and setting aside their conviction and sentence direct that they shall be set at liberty forthwith, if not required in any other case.