JAVED IQBAL, J.-Shan-la son of Hayat, aged 18 years, Dhani Bakhsh son of Khano, aged 26 years, Qaim Din son of Hayat, aged 17 years, and Gandhi son of Pir Bakhsh, aged 26 years, have been convicted under section 302/34, P. P. C. For the murder of Faqir Bakhsh, vide judgment dated the 16th of September 1971, of the Sessions Judge, D. G. Khan, who sentenced Shamla and Dhani Bakhsh to death and Qaim Din and Gandhi to transportation for life. Shamla and Qaim Din are brothers.
Dhani Bakhsh and Gandhi are their cousins. Their appeal as well as reference for the confirmation of death sentence awarded to Shamla and Dhani Bakhsh are being taken up and disposed of together by this judgment.
2. The occurrence is stated to have taken place at Mighribwela on the 2nd of September 1970, in the area of Kotla Ghulam Murtaza Shah, at a distance of 8 miles from Police Station Kot Mithan Sharif, District D. G. Khan. F. I. R. (Exh. P. B) was lodged by Wahid Bakhsh P. W. 9, maternal uncle of the deceased at 2-15 a. m. On the 3rd of September 19,0, at Police Station Kot Mithap Sharif and it was recorded by Dil Sher Khan S. I. P. W. 11.
3. The motive for offence as disclosed in the F. I. R. Is that three days prior to the occurrence the deceased had given a slap to Shamla appellant because his cattle had damaged the crops of the deceased. Hayat, the father of Shamla appellant had complained to Wahid Bakhsh P. W. That the deceased should not have done so as the consequences of the same would not be gold. It is stated that on account of this incident the appellants committed the murder of the deceased.
4. In the F. I. R. The occurrence is reported to have taken place in the following manner; Wahid Bakhsh P. W. Along with Faqir Bakhsh deceased was returning from the tube-well of Khuda Bakhsh Shah. The deceased was taking his pair of bullocks with him. On the way Wahid Bakhsh P. W. Sat down in order to make water and the deceased went on proceeding. When the deceased had covered a distance of 20/25 karams and had arrived within the area of Kotla Ghulam Murtaza Shah then suddenly from behind a grove of date trees emerged the appellants. Shamla and Dhani Bakhsh appellants were armed with hatchets whereas Gandhi--and Qaim Din appellants were empty-handed. Gandhi appellant ran forward and held the deceased in a japha from behind thereby felling him down straight on the ground. He then held his legs and arms whereas Qaim Din appellant held him from the hair of his head. The deceased raised hue and cry. Dhani Bakhsh and Shamla appellants then gave him successive hatchet blows which feel on his neck. Wahid Bakhsh P. W. Raising alarm ran in order to rescue the deceased. In the meantime, Farid P. W. 10 and Faiz (cited in the F. I. R. But given up as having been won over) also rushed to the scene of occurrence in order to rescue the deceased. The; appellants raised a lalkara to the effect that if any one came near he would be done to death. Since these three eye-witnesses were empty-handed they witnessed the occurrence from a distance out of fear. Thereafter, Qaim Din and Gandhi appellants held the deceased from the arms and Dhani Bakhsh and Shamla appellants held him from the legs and took him .Towards Chah Mod Wala. In the meantime, on hearing their alarm Nabi Bakhsh, Khuda Bakhsh, Qadir Bakhsh, his servant (none of them was produced) and many other people came there. The eye-witnesses proceeded to Chah Moti Wala and at a distance of about one acre in the direction of East of Chah Moti Wala they found the dead body of Faqir Bakhsh lying in an unused watercourse.
5. The prosecution has produced two eye-witnesses in this case, Wahid Bakhsh P. W. 9, the first informant and maternal uncle of the deceased and Farid P. W. 10, his uncle Bahadur P. W. 7 was married to the sister of the wife of tile deceased. The third eye-witness is Faiz Muhammad who was cited in the F. I. R. But was given up as having been won over. No other person mentioned in the F. I.
R. As a witness yeas produced.
6. The appellants were, arrested by Dil Sher Khan S. I. P. W. On the 4th of September 1970. At the instance of Shamla appellant was recovered blood-stained hatchet P. 9 which was taken into possession vide memo. Exh. P. H. Dated the 4th of September 1970. At the instance of Dhani Bakhsh appellant was recovered blood-stained hatchet P. 10 which was taken into possession vide memo.
Exh. P. K., dated the 4th of September 1970. From the person of Shamla appellant was removed blood-stained loin cloth P. 7 which was taken into possession vide memo. Exh. P. G., dated the 4th of September 1970. From the person of Dhani Bakhsh appellant was removed blood-stained cheddar P. 8 which was taken into possession vide memo, Exh. P. J., dated the 4th of September 1970. From the person of Qaim Din appellant were removed blood-stained shirt P. 4 and blood-stained chaddar P. 5 which were taken into possession vide memo. Exh. P. E. Dated the 4th of September 1970. From the person of Gandhi appellant was removed blood-stained shirt P. 6 which was taken into possession vide memo. Exh. P. F. Dated the 4th of September 1970. The attesting witnesses of all these recoveries besides Dil Sher Khan S. I. P. W. Are Nabi Bakhsh P. W. 6, husband of the widowed mother of the deceased and Bahadur P. W. 7, who is married to the sister of the wife of the deceased and is also uncle of Farid P. W. In the report of the Serologist (Exh. P. Q.), scrapings from hatchets P. 9 and P. 10 as well as cloth cuttings of shirt P. 4 and chaddar P. 5, and shirt P. 6 were found to be stained with human blood. In respect of cloth cuttings from an additional cheddar, his report is also to the effect that it was found to be stained with human blood. But because of the absence of any stated control it cannot be ascertained as to whom did it belong i.e. It could either be the loin cloth P. 7 of Shamla appellant or it could be cheddar P. 8 of Dhani Bakhsh appellant.
Anyway, these recoveries have been rightly disbelieved by the trial Court and the reasons for the same are given in paras 20, 21 and 22 of the judgment. It is indeed correct that the recovery witnesses are closely related to the deceased, there are serious discrepancies in their statements, and although the respect--ables of the area were present at the time when these recoveries were made, they were not made to attest these recoveries. In the circumstances, no reliance can be placed on the recovery evidence.
7. The prosecution case against the appellants is based entirely on the account of two eye- witnesses who are also closely related to the deceased besides being wajtakkar witnesses, interested and partisan.
8. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They disowned the weapons of offence as well as clothes recovered from them and stated that they had been involved due to suspicion and party faction.
9. Dr. Muhammad Sharif P. W. 1 conducted post-mortem examination on the dead body of Faqir Bakhsh at 5-30 p. m. On the 3rd of September 1970, and found four incised wounds on the right, left and front sides of the neck which had cut the main blood vessels, trachea, oesophagus and spinal cord. In his opinion, death was due to shock and haemorrhage caused by the cutting of the aforementioned vital parts of tile neck region. All the injuries had been caused by sharp -edged heavy weapon and each of the injuries was sufficient to cause death in the ordinary course of nature. The time between death and injuries was instantaneous.
10. We have carefully perused tie record arid heard learned counsel for both the sides in detail. The case of the prosecution against the appellants is based solely ors the account of two eye- witnesses. Wahid Bakhsh P. W. Had stated in the F. I. R. As well as in the statement before the Committing Magistrate that he along with the deceased was returning from the tube-well of Khuda Bakhsh Shah. However, before the trial Court he stated that he was returning from Kotla Ghulam Murtaza Shah to his village and on the way hr met the deceased. Further he stated in the F.
I. R. That while he sat down to make water, he saw the deceased being attacked and done to death by the appellants at a distance of 20/25 karams ahead of him. Before the trial Court, however, he stated that after making water he got up and followed the deceased. Then he heard the alarm of the deceased and run to the spot. Again in the F. I. R. He had stated that when he along with other eye-witnesses proceeded to Chah Moti Wala they found the dead body of Faqir Bakhsh lying in an unused watercourse at a distance of one acre in the direction of East from Chah Mote Wala. But in his statement before the trial Court he put it differently. He stated that the deceased was carried away by the appellants to Chah Moti Wala where they placed his dead body in a water. Course.
Likewise, the description of motive in the F. I. R. And before the trial Court is different. He stated that there was no dispute or enmity between the deceased and the appellants before the incident of slapping. He also stated that he had assured Hayat that there would be no further quarrel on that account. He further stated that it had grown dark at the time of occurrence and that there was a trail of blood between the place of occurrence and the place where the dead body of the deceased was lying in the watercourse. This trail of blood was shown by him to the police but the investigating officer did not take any blood from between the two places. He also stated that the police did not take the bullocks into possession.
We lave already pointed out that this witness is closely related to the deceased apart from being wajtakkar witness. There is evidence on the record to indicate that in the village there are two rival factions i.e. Of Gamun Shah and of Kbuda Bakhsh Shah, and that the deceased belonged to the faction of Khuda Bakhsh Shah whereas the appellants were the tenants of Gamun Shah. The eye- witnesses in this case being closely related to the deceased belonged to the faction of the deceased and are, therefore, interested and partisan. The testimony of Wahid Bakhsh P. W.
Therefore, which has material discrepancies, appears to be tainted.
Farid P. W. Is likewise closely related to the deceased and is a wajtakkar witness as well as interested and partisan. He also stated that it was dark when the incident took place. According to him Khuda Bakhsh Shah. Nabi Bakhsh and Qadir Bakhsh (the witnesses who were rot produced) did not see the appellants carrying the deceased or laying him down in the watercourse. He stated that he could not give number of blows given by the appellants to the deceased and that when the deceased rags being carried by the appellants be was still alive and was writhing in pain. It may be pointed out that the medical evidence is to the effect that death was instantaneous in this case. He is not certain as to when the appellants were produced before the police. Before the committing Magistrate he stated that they had appeared before the police; on the next day of the occurrence whereas before the trial Court tie stated that they were produced on the third day of the occurrence before the police. Before the committing Magistrate he did not state that the appellants had thrown the deceased in the watercourse. He had also not stated before the committing Magistrate that they were attracted to the scene of crime because of the alarm. He stated that they saw the deceased being killed from a distance of 5/6 karams and that before they reached the spot and stood at a distance of 5/6 karams the appellants had already given hatchet blows to the deceased. In view of material discrepancies in his statement, besides the aforementioned factors, this, witness is unreliable and this testimony does not inspire confidence. It is interesting to note that Nabi Bakhsh P. W. 6, one of the recovery witnesses, who is also closely related to the deceased, had stated in the cross-examination that he came to know of the murder at about Maghrib time. Wahid Bakhsh P. W. 9, Farid P. W. 10 and Faiz Muhammad as well as himself went to the spot together. There the dead body of the deceased was lying. The dead body was lying in the area of Chah Moti Wala. From this statement it is evident that the two eyewitnesses may have gone to the scene of occurrence after it had taken place and found the dead body of Faqir Bakhsh lying in the watercourse. It is, therefore, probable that the deceased was done to death by some unknown assailants, unwitnessed by any one and his dead body was found by the eye-witnesses subsequently lying in the water--course and further they implicated the appellants on suspicion as well a on account of party faction in the village. If the recovery evidence was disbelieved by the trial Court because the testimony of the attesting witnesses was regarded as tainted, then, on the same basis, it was not safe to rely on the uncorroborated and tainted testimony of the interested and partisan eye-witnesses.
11. Reference for the confirmation of death sentence awarded to Shamla and Dhani Bakhsh appellants is rejected.