SHAUKAT ALI, J.-Khuda Bakhsh . (47) and his brother Muhammad Khan (absconder) are alleged to have murdered Umar Siddiq, Panah Ali, Yaqub, Muhammad Sharif, Ata Muhammad and Abdul Wahid. Khuda Bakhsh was tried by the Additional Sessions Judge, Multan, and was sentenced to death for the said murders. Abdullah Khan and Imam Bakhsh, who were tried under section 302/149, P. P. C., for abetting the offence of murders of Umar Siddiq and five others named above, were acquitted of the charge. The condemned person has appealed and there is a usual reference for confirmation of the sentence of death.
2. The prosecution case is as follows. O the 11th of December 1964, the six deceased, namely, Umar Siddiq, Panah Ali, Yaqub, Mohammad Sharif, Ata Muhammad and Abdul Wahid along with eight others committed an assault on Khuda Bakhsh appellant and his brother Ilahi Bakhsh. The eyes of the latter were completely gouged with a knife while the former suffered injuries on the eyes resulting in a permanent loss of vision of the left eye. A case under sections 307/326/149 and 148, P.
P. C., was pending against the deceased and eight others in the Court of the Sub-Divisional Magistrate, Lodhran, and was fixed for hearing on the 426th of January 1966. This, it is alleged, motivated the present occurrence.'
3. On the 25th of January 1966 at dopehrwela Ghulam Rasul P. W. Along with Umar Siddiq, Panah Ali, Ata Muhammad, Abdul Wahid, Yaqub and Muhammad Sharif deceased, and Wazir P. W. Were proceeding to Railway Station, Karor Pacca, in order to board a train for Lodhran, as they were to appear in the Court of the Sub-Divisional Magistrate, Lodhran, on the 26th of January 1966, in the said case. They were followed by Ghulam Qadir, Ghulam Ali, Abdul Shakoor, Sardar Ali and Muhammad Hussain, who too were to go to Lodhran. When they reached near Chah Shor Wala in the area of village Bahawalgarh, Khuda Bakhsh appellant and his brother Mohammad Khan absconder, who were armed with rifles, started firing from behind the trees. It is said that the first shot of Khuda Bakhsh hit Ata Muhammad deceased on his forehead while the shot of Muhammad Khan hit Muhammad Sharif. Both of them fell down on the ground. Thereafter, the appellant and the absconder continued firing. Ghulam Rasul P. W. And others laid themselves on the ground.
Panah Ali who had a '12 bore gun with him fired in return. Panah Ali, Umar Siddiq, Yaqub and Abdul Wahid suffered injuries as a result .Of the firing and succumbed to the injuries at the spot. Ghulam Rasul and Wazir continued crawling in the channel and succeeded in saving themselves. Both the accused came to the spot where the dead bodies were lying. They fired and inflicted knife blows on them. While decamping from the scene of crime, they took away the gun of Panah Ali deceased.
Ghulam Ali, Ghulam Qadir, Abdul Shakoor, Muhammad Hussain and Sardar Ali hid themselves in a sugarcane field and witnessed the occurrence.
It may be stated here that out of these eye-witnesses the pro--secution did not examine Wazir, Ghulam Qadir, Abdul Shakoor and Ghulam Ali.
4. Ghulam Rasul P. W. Proceeded to Police Station Karor Pacca, which is at a distance of three miles from the place of occurrence and lodged the report Exh. P. A., which was recorded at 2-30 p.m., by Mohammad Hayat Khan. Sub-Inspector P. W.
19. The S. H. O. At once went to the spot and commenced the investigation. On inspection of the spot he found the dead bodies of Yaqub Ali, Umar Siddique, Ata Muhammad, Muhammad Sharif, Panah Ali and Abdul Wahid. He prepared their injury statements and the inquest reports and despatched the dead bodies 'to Lodhran mortuary for post-mortem examination. He took blood-stained earth from six places corresponding to the said dead bodies and made them into sealed parcels. He picked up eight empties and made them into a sealed parcel vide memo. Exh. P. D. Likewise, he collected seven empties of '303, ten empties of .303 bore and six empties of .12 bore vide memos. Exh. P. C., P. B., and P. E., respectively. He arrested Khuda Bakhsh appellant on the 26th of January 1966, and at that time he was carrying gun P.1 of '12 bore. It was taken into possession and made into a sealed parcel vide memo. Exh. P. G.
The appellant led to the recovery of rifle P. 2 from his house. It was taken into possession along with three live cartridges vide momo. Exh. P. H.
5. The statement of the doctor who conducted the autopsy on the dead bodies of the deceased indicates that the injuries received by the six deceased were lacerated, punctured and cut wounds.
Two punctured (cut) wounds on the dead body of Umar Siddiq, two punctured wounds on the dead body of Ata Mohd. a punctured and a cut wound on the dead body of Muhammad Sharif were described by the doctor as post-mortem injuries. The injuries on each of the deceased were sufficient in the ordinary course of nature to cause death.
6. The appellant when examined stated that Muhammad Khan absconder is his brother and that he lodged report Exh. P. A./G., on the 11th of December 1964, against Umar Siddiq and five other deceased of this case at Police Station Karor Pacca. He denied the prosecution allegations and stated that he had been falsely implicated due to enmity and that lie could not see beyond a few yards. He examined Doctor Refiullah in defence.
7. The prosecution in support of its case examined Ghulam Rasul P. W. 1, before the Committing Magistrate, Ihsan P. W. 11, Sardar Ali P. W. 13 and Muhammad Hussain P. W. 14, as eye--witnesses. It may be stated here that Ghulam Rasul was murdered during the pendency of this case and his statement recorded by the Committing Magistrate was transferred to the Sessions' File.
Ghulam Rasul, Sardar Ali and Muhammad Hussain P. Ws., stated that as soon as the deceased reached in the area of Chah Shor Wala, the appellant and his brother Muhammad Khan started firing at them resulting in their, death. Ihsan P. W. 11, stated that he heard the report of the fire and came out of his house and saw, the appellant and Muhammad Khan at a distance of one Killa that they were armed with rifles. He stated that he saw that the gun of his cousin Panah Ali was with Khuda Bakhsh.
Ghulam Rasul P. W. Was the principal accused in the case under. Sections 307/326/149 and 148, P. P.
C., lodged by Khuda Bakhsh appellant in which the eyes of Ilahi Bakhsh were gouged and Khuda Bakhsh suffered injuries on both of his eyes. He is" an inimical witness. He improved upon his statement in the Court and' stated that the accused inflicted knife blows on the dead bodies though he did not state so in the first information report. Being an inimical witness as a matter of prudence, we have to look for corroboration.
8. Sardar Ali and Muhammad Hussain P. W's. Are first cousins. Mst. Alam Khatoon daughter of Muhammad, mother of Sardar Ali P. W. Was the real sister of Panah Ali and Umar Siddiq deceased.
As such, Sardar Ali P. W. Was closely related Panah Ali and Umar Siddiq deceased. It is true that Sardar Ali P. W. And his uncle Akbar Ali were the prosecutiaa-wtcrTe5Ws n the case under sections 307/326/149 and 148, P. P. C., registered to the instance of Khuda Bakhsh, therefore, it was urged by he prosecution that this witness as not hostile to the accused this witness started that it was incorrect that he turned hostile as a prosecution witness in the criminal case under sections 307 326/149 and 148, P. P. C., and did not support the prosecution story. On examining his statement Exh.
D. E. At page 51 of the paper book it transpired that he did not support the case of the prosecution and stated that the assailants had muffed their faces, He was cross-examined by the P. S. 1.
Likewise his uncle Akbar Ali too was cross-examined. Sarder Ali stated that Khuda Bakhsh appellant took away the gun of Panah Ali, he did not state so before the police and the Committing Magistrate by him. He stated that he and Muhammad Hussain P. Ws. Were going to Vehari to Chak No. 83/W. B., to meet one of their relations. He was confronted with this statement before the Committing Magistrate and the police where it was not so stated. On the contrary, in his statement Exh. D. B./1 he stated that he along with the deceased was going to Lodhran to -attend the Court.
He stated that Ihsan Ali, Abdus Samad, Sher Muhammad, Sharif, Ahmad Bakhsh and Zulfiqar had seen the occurrence, but he had been contradicted by Muhammad Hussain P. W. Who stated that these persons were not present at the spot at the time of the occurrence and that they had not witnessed the occurrence.
9. Muhammad Hussain P. W. 14, denied at the trial that he along with Ghulam Rasul complainant, Umar Siddiq, Pariah Ali, Abdul Wahid, Yaqub and Ata Muhammad deceased and Wazir, Sardar Ali, Ghulam Ali, Abdul Shakoor and Ghulam Qadir P. Ws. Were going together in connection with the hearing of the case at Lodhran. He was confronted with his statement Exh. D. D., where it was so recorded. He stated that his father Akbar Ali was a witness in the case of Khuda Bakhsh, but he did not know if he had turned hostile and joined hands with the accused: The statement Exh. D. F. Of his father at page 51 of the paper book shows that he did not support the prosecution case and was cross-examined by the P. S. I. He stated that the accused took away the rifle of Panah Ali while decamping. He did not so state before the police and the Committing Magistrate. He stated that he saw the occurrence at a distance of two Killas from the place of incident along with Sardar Ali.
10. Ihsan P. W. 11 is the first cousin of Panah Ali deceased. He stated that h6 saw the appellant and the absconder running away with rifles and taking away the gun of Panah Ali. This he did not state before the police or the Committing Magistrate.
11. The above discussion of the evidence of the witnesses would go to show that Ghulam Rasul is an inimical witness and that the remaining two, namely, Sardar Ali and Muhammad Hussain are his partisan. They improved upon their statements and gave a discrepant account of the occurrence.
Even the very presence of Sardar Ali and Muhammad Hussain P. Ws. At the time of the incident is doubtful as they gave a different versions before the police and at the trial to show their presence at the spot. It is difficult to accept the tall claim of Ihsan that he saw the accused absconding from the place of crime, as it was for the first time at the trial that he stated so. His statement Exh. D. B.
Shows that he identified the dead bodies.
12. The only thing certain about this case is, that six persons were shot dead at dopehrwela at the spot where their dead bodies were found, but the evidence that they were murdered by the appellant before us is not satisfactory and convincing. It is the prosecution's own case that the occurrence took place at dopehrwela in the open field and a number of other persons; namely, Muhammad Sharif, Abdus Samad, Sher Muhammad, Ahmad Bakhsh and Zulfiqar Ali, who owned land around the place of occurrence witnessed the incident. They were the natural witnesses oddly enough they were not examined by they prosecution. As observed earlier, the witnesses who appear1 in support of the case for the prosecution are interested in the complainant Ghulam Rasul and also gave an exaggerated and contradictory statements at the trial. It is true that the incident of the nature put forward by the prosecution did take place, but in view of the partisan character of the evidence and in view of the doubt regarding the very presence of Sardar Ali and Muhammad Hussain at the spot, we consider, we cannot say with any degree of reasonable certainty that the appellant took part in the occurrence which resulted in six murders. We may say that we are also not impressed with the evidence of recovery of the gun of Panah Ali deceased and the rifle at the instance of the appellant. The mere fact of taking away the gun of Panah' Ali deceased after the murder is doubtful. The witnesses of, recovery, namely, Wahid Bakhsh P. W. 12 and Ghulam Murt4a P.
W. 16, were the prosecution witnesses against Akbar, husband of Mst. Bakhtawar, sister of the appellant in a case under the Arms Act. Apart from this, they gave a discrepant account of the recovery of rifle P. 2 from the house of the appellant. Wahid Bakhsh P. W. Stated that the rifle P. 2 was recovered from a kotha, which was meant for bhusa and that there was no lock on the door nor was there any woman. Ghulam Murtaza stated that Khuda Bakhsh obtained a key from his wife with which the lock was opened and from there the rifle was recovered and that the lock and the key were with the Sub---Inspector after he had opened the door. The evidence of recovery being discrepant no implicit reliance can be placed on the recovery.
13. At the trial, it is the case of the prosecution that, the deceased were given knife blow by the assailants after they had fallen down on account of fire-arm injuries. Ghulam Rasul, the first informant, did not so state in the first information report. Before the Committing Magistrate he stated that knife blows were given to the deceased. The other two witnesses of the occurrence, namely Sardar Ali and Muhammad Hussain deposed to the same effect. On the dead body 'of Umar Siddiq there were two cut wounds on the right hypochondrium and right epigastric region.
Two injuries of Ata Muhammad, three of Yaqub and one of Muhammad Sharif were punctured wounds. One injury of Panah Ali was a punctured wound, but it was stated by the doctor that it was caused by a fire-arm. The doctor described the punctured wounds of Umar Siddiq, Ata Muhammad and Sharif as post-mortem injuries. Unfortunately, he was not cross-examined on this aspect of the case, and we find it difficult to agree that they were post-mortem, because the doctor has not given any reason for his opinion. It was perhaps in order to come in line with the medical evidence that the witnesses stated that the deceased were given knife blows.
14. As stated above, the first informant did not depose in the F. I. R., that knife blows were inflicted on the deceased it appears that when the medical opinion was known this improvement was effected in the prosecution story. The omission on the part of the prosecution to explain the incised wounds at the earliest opportunity weighs heavily against it and leads us to believe that the witnesses who now claimed themselves to be the eye-witnesses of the occurrence, had not witnessed it.
15. It is unfortunate that six murders committed in the broad daylight remained unpunished, but if the investigating agency chose only to produce interested and inimical witnesses, and did not make any effort to produce those who witnessed the occurrence, the prosecution itself is to blame.
16. The result of the entire discussion is that in our opinion there is sufficient amount of doubt in the case, and giving the benefit of that doubt to the appellant, we accept his appeals, set aside his conviction and the sentence and acquit him. The sentence of death is not confirmed. He shall be set at liberty forthwith if not required in any other case.