1. MUSHTAQ HUSSAIN, J.--Muhammad Bakhsh, son of Wassan, aged 28 years and Mst. Bahar widow of Faizu deceased, aged 45 years, have been convicted under, section 302/34, P. P. C. For: having murdered Fair Bakhsh, husband of the latter, of the night between 29/30-3-1970 in Kasba Muhammad Pur in the house of the deceased at, past mid-night. By order dated 18-9-1971, the Additional Sessions Judge, Dera Ghazi Khan, sentenced both the appellants to death. By the same order, Mst. Amiran wife of Abdul Rashid and daughter of MO. Bahar, aged about 18 years was acquitted of the same charge. F. I. R. (Exh. P. A.) was lodged by Abdul Ghafoor (P. W. 7) at Police Post Muhammad Pur at about 3 a.m. On 30-3-1970 and was recorded by Ashiq Muhammad A. S. I. (P. W.
2. 12). The formal F. I. R. (Exh. P. A/1) was recorded on its basis on the same day at 4 a.m. At Police Station Jampur by one Ahmed Bakhsh, A. S. I. They have filed an appeal against their conviction and- sentence and the case is also before us under section 374 of the Criminal Procedure Code for confirmation of the sentence of death.
3. The facts of the prosecution case as disclosed in the F. I. R. Are that Mst. Bahar wife of Faizu is a wayward woman. She had developed an illicit liaison with Muhammad Bakhsh appellant who belongs to Basti Malaria. With a view to developing these relations with her, Muhammad Bakhsh had ostensibly picked up a friendship with Faizu, her husband to be present in the house of Faizu on the fateful night. He had been seen there by Abdul Ghafoor P. W. Abdul Ghafoor (P. W. 7) and Bashir (P W. 8) who were going to Kotla Mughlan at dhali ra'at on 30-3-1970. When they reached the irrigation channel outside the town of Muhammad Pur, they heard hue and cry being raised in the house of Faizu deceased. Both of them ran to the house. Meanwhile, Nabi Bakhsh (P. W. 9) who is the resident of the same town also reached there. They found that the door of toe kotha was open and a lantern was burning inside. They found Mst. Babar appellant wife of the deceased with a dagger in her hand and Muhammad Bakhsh appellant with a kulhari. Both bf them were, showering blows upon Faizu deceased. Mst. Amiran daughter of the deceased had caught hold of the legs of the deceased. The tree witnesses shouted the lalkaras and they were answered back by Muhammad Bakhsh appellant warning them that they would be dealt with if they came near.
4. These persons, therefore, remained f L a respectable distance. Faizu died at the spot. Mst. Bahar and Mr. Muhammad Bakhsh appellants made good their escape towards the rear of the kotha and took their weapons with them. Abdul Ghafoor P. W. Left Bashir Ahmad and Nabi Bakhsh P. W. At the place and proceeded to P dice Post Muhammad Pur where he made statement Exh. P. A. To Ashiq Muhammad (P. W. 12) A. S. I. Who sent it to Police Station Jampur where formal F. I. R. Exh. P. A/I was recorded by Ahmad Bux A. S. I. At 4 p.m. The police station, is. At a distance of 13 miles from the scene of occurrence.
5. Ashiq\Muhammad (P. W. 12) reached the spot and went through the usual formalities. He arrested Mst. Amiran who was present at the spot and as she had injuries on her person, an injury statement Exh. P. O. Was also prepared. Her shalwar P. 3 and shirt P. 4 being blood-stained were taken into possession tide memo. Exh. P B.
6. On 31-3-1970 he arrested Mst. Bahar appellant and prepared her injury statement and got her medical examined. Mst. Bahar led him to a brick-kiln wherefrom she got recovered blood-stained dagger Exh. P. I which was found buried at that place. The same was taken into possession vide memo. Exh. P. I. From the same place at the pointing out of Mst Bahar the recovered blood-stained shirt P. .10 and shalwar P. 11 which were taken into possession vide memo. Exh. P. G.
7. Muhammad Bakhsh was also arrested on, the same day by Muhammad Hussain, S. I. While he was in custody he led him to the same deserted brick-kiln and from near a palm tree, dug out blood- stained hatchet P. 2 which was taken into possession vide memo Exh. P. H. His blood-stained chaddar P. 12 and shirt P. 13 were also recovered from the same place and were taken into possession vide memo. Exh. P. J. Having completed the investigation, the witness challaned the case with the result already indicated above.
8. At the trial, Muhammad Bakhsh appellant pleaded innocence and stated that he had been implicated on account of enmity. Mst. Bahar appellant also pleaded innocence. She further stated that on the night of occurrence. She had gone to the house of Mst. Amiran, her daughter. She was arrested from there. On coming to the site. She had found her husband murdered and her household effects plundered.
9. Mst. Amiran the daughter of Mst. Bahar admitted that Muhammad Bakhsh appellant had illicit relations with her mother Mst. Bahar and used to visit her house. She, however, denied having entered into any conspiracy with the appellants to do away with the deceased. She informed the Court that she had not caught hold of the deceased by his legs and that she was, in fact, sleeping in her kotha along with her mother. Faizu was sleeping on his bed. During the night she was awakened on the alarm raised by her father. Muhammad Bakhsh appellant had entered the kotha earlier at about 9 p.m. With the permission of her father Faizu and stayed overnight. Mst. Bahar was, according to her, present in her house. After about mid-night when she heard the alarm, she found Mst. Bahar with dagger P. 1 in her hand and Muhammad Bakhsh with hatchet P.
2. This hatchet belonged to her father. Both of them inflicted injuries upon the deceased while Mst. Amiran tried to rescue him and was also assaulted. The appellants then changed their clothes and ran away leaving the dagger and hatchet at the spot. She went to the Police Post Muhammad Pur along with the dagger P. 1 and informed the police about the occurrence. None of the P. Ws. Had witnessed the occurrence. Her explanation about blood on her clothes was that they had got soiled when she was trying to extricate her father from the clutches of her mother and her paramour. She also deposed that Faizu deceased was her paramour. She also deposed that Faizu deceased was her step-father. They claimed to be tried.
10. The prosecution examined 12 witnesses in support of its case, while the defence examined none.
11. P. W. 11 Dr. Khurshid Ahmad, Medical Officer, testified to having per--formed the post-mortem examination on the body of Faiz Bakhsh deceased He found the following ante-mortem injuries present on his body:--
(1) Incised wound 3' x -- x bone deep on the mid line of head.
(2) Incised wound 5' x 1' x -- ' on left half of head.
(3) Incited wound 4' x 1' x -- ' on right left side of face.
(4) Incised wound 2 x 1' x -- ' on right lateral surface of neck.
(5) Incised wound 1 -- ' x -- x skin deep on top of right shoulder joint.
(6) Incised wound 1 1/3 x x 3' on back of upper part of right chest.
(7) Incised wound 1 -- x 1/3 x 2' on back of left half of chest.
(8) Incised wound 1' x -- ' x 3' on back of right half of chest, lower part.
(9) Incised wound 1' x 1/3 ' x 2' on back of right upper arm.
(10) Incised wound 1' x x 2' on outer side of right upper arm.
(11) Incised wound 2' x -- x skin deep on back of right upper arm lower third.
(12) Incised wound 1' x 1/3' x skin deep on front of right elbow joint.
(13) Incised, wound 1' x -- ' x 1' on front side of upper third of right forearm.
(14) Incised wound 3' x 1 x 1 -- ' on outer side of right forearm.
(15) Incised wound 1' x 1/3 ' x skin deep on back of left elbow.
(16) Incised wound 1 -- ' x -- ' x -- ' on back of left forearm.
(17) Incised wound 1' x x skin deep on the space between thumb and index finger, of left hand.
(18) Incised wound 1 -- x -- ' x 1' on left lateral side of neck.
(19) Incised wound 3' x 1 -- ' x 1' on front of right half of chest.
(20) Stab wound 2 -- ' x 2' x 3' on the epigastrium.
(21) Incised wound 1' x 1/5' x 2' on right half of chest on front.
(22) Incised wound -- ' x 1/3 ' x skin deep 2 -- " above injury No. 1.
(23) Incised wound 2 -- ' x --' x -- ' on left thigh on front.
(24) Abrasion mark 3'x 1/5' on right thigh on front.
(25) Multiple abrasion marks on neck.
(26) Multiple abrasion marks on left chest and left shoulder joint.
12. Three out of them were found to be caused by a blunt weapon and the others by asharp-edged weapon. In the doctor's opinion death was due to injuries Nos. 2 and 20 which were caused by sharp-edged weapons.
13. On 31-3-1970, I.e. a day later, he examined Mst. Bahar appellant and found the following two injuries on her person:-
(1) Two small abrasions on palmer side of middle finger of left hand.
(2) Incised wound 1' x x -- ' on right thigh on inner side on its lower third. Both were simple. No. 1 was caused by blunt weapon and No. 2 was caused by sharp weapon.
14. At about the same time, he also examined Mst. Amiran who had the following injury on her person
(1) Incised wound -- ' x -- ' x skin deep on back of left hand.
15. It was simple caused by sharp weapon.
16. The testimony of this doctor proves that Faizu met with a violent death as a result of having received no less than 26 injuries on his body. It also proves that Mst. Bahar appellant and Mst.
17. Amiran the acquitted accused also bore injuries.
18. The ocular evidence in this case. Rests upon the testimony of Abdul Ghafoor (P. W. 7), Bashir (P. W.
19. 8) and Nabi Bakhsh (P. W. 9). These three witnesses have been disbelieved by the learned Addl.
20. Sessions Judge on the ground that their testimony does not inspire confidence, that threw were pot natural witnesses and that there ware material discrepancies to their statements. Besides that Abdul Ghafoor (P. W. 7) was a stock witness to the extent that he admitted that he used to join in the investigation of cases by Ashiq Muhammad A. S. I. He even admitted that he had not seen the appellants inflicting any blows on Faizu deceased and in any case they had their faces muted. The reason for their presence near about the house given by this witness was in contradiction to the one given by Abdul Ghafoor P. W. Nabi Bakhsh (P. W. 9) is a police razakar. The other detailed reasons contained in paragraph 15 of the judgment of the learned Addl. Sessions Judge are also cogent and, substantial. We have gone through the testimony of these witnesses and have arrived at the same conclusion on the same basis and, therefore, we do not place any reliance upon the testimony of these so---called ocular witnesses.
21. The learned Addl. Sessions Judge has convicted the appellants on the basis of the evidence of recovery and the statement of Mst. Amiran. Mst. Amiran has not been found to be guilty. Her statement is only exculpatory and it passes our comprehension as to how an exculpatory statement made by a co-accused could be used against another co-accused. Reference in this connection may be made to Sher Gul v. Emperor (AIR 1935 Lah. 671) where it has been observed:- "After disbelieving all the eye-witnesses the Sessions Judge proceeded to deal with the case of Shergul appellant and convicted him solely on his own statement. It was contended on behalf of the appellant that if his conviction is to be based solely on his statement the statement must be taken in its entirety and that it is not open to the Court to rely on the incriminating portion of the statement of the appellant and to exclude from consideration the exculpatory part thereof. This contention has great force and must prevail. It was held by a Full Bench of the Allahabad High Court of which one of us was a member in Emperor v. Balmakund (1931 All. 1), that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the, confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible,. We hold, therefore, that in the present case, the statement of Shergul must be taken as a whole."
22. We are now left only with the evidence of recovery. It is difficult for us to believe that they would have gone to the brick-kiln to undress and bury their clothes as well as the weapons of offence in separate pits. They could have done so only if 'they were masters of the law of evidence and knew that there will be legal flaws in the admissibility of the evidence if all the weapons and clothes are recovered from the same pit. It may in passing be mentioned that according to Mst. Amiran these two appellants had left their clothes and the weapons at the house and that the weapons had, in fact, been taken by the girl to the police post. It is not possible and in any case highly unsafe to base the conviction of any of the appellants on the flimsy evidence furnished by the doubtful recoveries.