MAZHAR UL HAQ, J.-Muhammad Rafiq (40), Muhammad Latif (25) and Nawab Din (70) have been convicted for the Murder of Muhammad Siddique. They have been sentenced to death under section 302 read with section 34 of the Pakistan Penal Code. Their appeal and the connected murder reference are before us.
2. Muhammad Siddique deceased was a nephew of Nawab Din accused (brother's son). Nawab Din accused owned six killas of agricultural land in Square No. 109, Chak No. 159/R. B., District Layallpur. Adjacent to the land of the accused, Khan Muhammad (P. W. 8) and Sultan Ahmad (P.W.
9) and Muhammad Siddique deceased also owned six killas of land. Though closely related to one another, the relations between the accused and the complainant party were strained on account of warabandi (turn of water) and also because the cattle of the accused used to damage the crop ox the complainants.
3. On 29th June 1970, Nawab Din and Muhammad Latif accused tried to cross the complainant's field with their ploughs and bullocks on the way to their fields. The deceased and his brothers Muhammad Khan and Sultan P. Ws. Prevented them from doing so. This was resented by the accused, who went back abusing them and threatening them with revenge. The threat of revenge was repeated by Muhammad Latif accused the same evening when Muhammad Khan happened to meet him near the village. The same night (right between 19th and 20th June.) Muhammad Khan, Sultan P. Ws. And Muhammad Siddique deceased were sleeping on separate and scattered cots at their Balak, when at about 2-30 a.m. Muhammad Latif accused armed with a toka.
Muhammad Rafiq and Nawab Din accused with at hatchets turned up, and began to attack Muhammad Siddique deceased. Khan Muhammad and Sultan Ahmad P. Ws. Got up and saw the attack. They advanced towards the accused to rescue their brother, but Nawab Din accused incited the co-accused to kill them also. The witnesses receded, and the accused went towards their dera. After their departure, Khan Muhammad and Sultan Ahmad P. Ws went near the deceased and found him dead. Khan Muhammad went to the village next morning and informed Muhammad Hussain Lambardar about the occurrence. He sent for the Chaukidar and went with him to the spot . . . . Leaving Sultan Ahmad and the Chaukidar with the dead body, Khan Muhammad left with the Lambardar for the police station. On the way, they learnt that Ashiq Hussain A. S. I. Was present in Chak No. 161. They went there and Khan Muhammad made statement Exh. P. A. On the basis of which F. I. R. P. A/1 was registered at Police Station Chak Jhumra. Ashiq Hussain A. S. I. Reached the spot at 7.30 a. m. And sent the dead body for its post-mortem examination after preparing the necessary documents.
4. The accused appeared before the A. S. I. On 3rd July 1970 with their weapons. He took hatchet Exh.
P. 1 from Nawab Din, hatchet Exh. P. 2 from Muhammad Rafiq and toka Exh. P. 3 from Muhammad Latif accused. These recoveries were attested by. Tali Hussain (P. W. 7) and Muhammad Hanif.
5. Autopsy was held by Doctor Muhammad Asghar, Medical Officer, Chak Jhumra (P. W. 1), on 1st July 1970. He found the following injuries on the person of the deceased:-
(1) An incised wound 1 -- x -- ' x bone cut on the right side of the head, 1-1/3 above right ear.
(2) An incised would 3' x 8' x mandible cut on the right cheek, 2' in front of right ear.
(3) An incised would 1 -- ' x -- ' x wound cut and fractured on the right temple.
(4) An incised would 3' x 8' x mandible cut on the right side 1' below injury No. 2.
(5) An incised wound 5' x 4' x mandible wound cut just above chin.
(6) An abrasion -- ' x 8' below the chin.
(7) Three liner abrasion -- ' x 1/8 ' each in 1' x 1' area on the gap of left hand.
(8) Three linear abrasions -- ' x 1/8 ' each in 1' x 1' area on the back of left forearm just above wrist joint ulna bone fractured.
(9) Two contused wounds 2' x 1/8' x bone deep on the outturn and inner side of left elbow-joint.
Right temporal, frontal and right parietal bone were fractured. There was a cut on the bone under injury No. 1. The membrane and the brain were congested and were crushed on the right side.
There was also a cut under injury No. I.
6. In the opinion of the doctor, death was due to shock sad haemor--rhage. Injuries Nos. 1 and 3 were sufficient in the ordinary course of nature to cause death. Injuries Nos. 1 to 5 and 8 were grievous. Injuries Nos. 6, 7 and 9 were caused with a blunt weapon while the remaining injuries were caused by a sharp-edged weapon.
7. The accused denied guilt and ascribed the case to enmity. Nawab Din accused denied that his relations with the deceased were strained. Muhammad Rafiq and Muhammad Latif accused, however, admitted that their relations were strained with the deceased and his brothers, over the turn of water. The accused did not produce any evidence in defence.
8. There are only two eye-witnesses and both are the brothers of they deceased. Many people were admittedly present in the vicinity of the Behak, but none turned up in response to the alarm raised by the witnesses. Their evidence about the use of a sharp-edged weapon by each accused is belied by medical evidence which shows that the deceased had two contused wounds, and seven abrasives also. Their story that when they went towards the accused, the latter ran towards their dera without giving them a single blow is not convincing. Muhammad Siddique deceased had not taken any prominent part in the dispute between the parties and it is not clear why he was selected for murder. As the complainant party had a house in the village, all the three brothers were not likely to have stayed away from there every night. Since their object of staying at the behak at night was to guard the cattle, they were not likely to be without any weapon. As stated above, no one came to the spot during or after the occurrence. It was only in the morning that Muhammad Khan went and brought the Lambardar. The explanation of the eye-witnesses that they did not leave the behak for informing people in the village or in the vicinity because they were afraid of the accused, is not plausible because they were disposed to a greater danger at the behak than if they bad gone out to seek help and shelter elsewhere. It appears that Muhammad Siddique deceased was probably sleeping alone at the behak then taking advantage of a dark and cloudy night, he was killed by some unknown assailants. No one came to the spot from the vicinity probably because there was nobody at the behak to raise an alarm--- The story of the eye-witness that they stayed at the behak till early next morning seems to have been invented to meet the argument that the murder was not reported earlier because it was discovered next morning when people started moving about. The possibility of the implication of the accused on account of mere suspicion cannot be ruled out.
9. The alleged production of weapons by the accused did not materially, advance he prosecution case. These weapons were not stained with blood and they are said to have been produced four days after the occurrence.
10. As the case against the accused is not free from doubt, we accept their appeal and acquit them. Their conviction and sentences are set aside. The sentences of death are not confirmed.