ASLAM RIAZ HUSSAIN, J.-Yousaf Khan, aged 60 years and, his brother Muhammad Imran, aged 39 years, Pathans by case, Zamindars of village Jalalia, Police Station Hazro, District Attock, were tried by the learned Sessions Judge, Campbellpur, for the murder of their co-villager Mir Afsar. The learned trial Judge vide his judgment dated 21-1-1970, found both the accused persons guilty of the said offence and convicted them under section 302/34, P. P. C. He sentenced both of them to death. They have filed an appeal against their conviction and sentence. The matter has also been referred to us under section 374, Cr. P. C., for the confirmation of the death sentence awarded to the appellants. We propose to dispose of both the appeal as well as the reference by a single judgment.
2. The facts of the case as stated in the F. I. R. Briefly, are that about months prior to the occurrence Fazal Khan, the mother's father of the deceased, who resided in Malaya, died leaving some landed property in village Jalalia and village Alu. The entire property was mutated in the name of his wife Mst. Saber Jan (Mother's mother i.e. Nani of the deceased). About 6 or 7 years prior to the occurrence Hasham Khan, the father of the two appellants, who is a first paternal cousin of Mst.
Sakina Jan, the mother of the deceased purchased the entire land in village Jalalia from Mst. Saber Jan. About two years prior to the occurrence dust. Sakina Jan filed a suit against Hasham Khan in the Court of the Senior Civil Judge, Compbellpur, with regard to this sale contending that she too had a share in the land left by her father Fazal Khan. Mir Afsar deceased used to pursue the case on behalf of her mother, The case was fixed for hearing on the day of occurrence. i.e. 17-4-1968, and Mir Afsar deceased had to go to Campebll--pur in connection therewith. He, therefore, went to the house of his brother, Haq Nawaz, P. W. 10, early in the morning while the latter was yet asleep. He woke him up, gave him the key of his cattle-shed and said that he was going to Campbellpur in connection with the civil suit and that he (Haq Nawaz P. W.), should look after his cattle. After about 45 minutes of his departure Ahmad Jan Lambardar P. W. 7 came to Haq Nawaz P. W. 10 and told him that his brother had been killed by the two appellants.
3. The facts of the actual occurrence, as disclosed by Ahmad Jan P. W. 7, are that on the day of occurrence (i.e. 17-4-1966) when prayer was being offered in the mosque, he was proceeding from village Jalalia to Churgusht on foot. When he reached a place known as Dhadukian Ashraf Khan P.
W. 8 and Banaras Khan P. W. 9, who were following him at a distance of 10 to 12 paces, shouted at him. He thereupon stopped and the above-mentioned two witnesses joined him, as they were also proceeding in the same direction. When they reached near the well of Dilawar, they saw that Mir Afsar deceased was also following them at a distance of 10 to 12 paces. Yousaf Khan and Muhammad Imran appellants were following the deceased at a similar distance. The two appellants suddenly challenged Mir Afsar saying that they would set him right and that he will not be spared to attend the civil Court. Yousaf Khan appellant was armed with a stick while Muhammad Imran appellant was armed with a hatchet. In order to save himself, Mir Afsar deceased started running towards the well of Dilawar which is situated on the west of the road. The appellants chased him and caught up with him in the wheat field of their father Hasham Khan.
Yousaf Khan appellant gave a stick blow to Mir Afsar deceased, which fell on his left arm. The deceased fell in the neighbouring field of Dilawar whereafter both the appellant started inflicting injuries to him with their respective weapons. The incident was witnessed by Ahmad Jan P. W. 7, Ashraf Khan P. W. 8 and Banaras Khan P. W.
9. When they advanced towards the spot. The appellants warned them not to come near. Thereafter the appellants left the place alongwith their weapons. Leaving Ashraf Khan and Banaras Khan P. Ws. To guard the body, Ahmad Jan P. W. 7, went to the house of Haq Nawaz P. W. 10, the brother of the deceased and informed him about the incident. The latter thereupon accompanied Ahmad Jan P. W. To the spot. His brother Mir Afsar had, however, died by that time. Haq Nawaz P. W.10, then proceeded to the police station to lodge a report but Tahawar Zaman S. I. P. W. 11, met him in the way at a place called Nartopa Chawk, which is at a distance of 1-- miles from Police Station Hazroo and 4-- miles from village Jalalia. He made a statement Exh. P. A. At 8 a.m. Before the S. I. Which was sent by the latter to the police station for the recording of the formal F. I. R. Exh. P. A./1. The S. I then accompanied Haq Nawaz P. W. To the spot reaching there at 9-30 p.m. He took into possession a pair of Chappals P. 6/1-2 belonging to the deceased lying near the dead body vide memo. Exh. P. C.3. He also searched the person of the body and recovered a plastic paper containing currency notes, the details of which are as follows
(1) One note of denomination of Rs. 5-P. 4.
(2) Two notes of the denomination of Re. 1 each--P. 5/1-2.
The S. I. Also recovered some parched grain P. 9 from the pocket of the deceased. He took these articles into possession vide memo. Exh. P. F. He then prepared the injury statement and the inquest report relating to the dead body and sent it (the body) to the mortuary for post-mortem examina- -petition. Thereafter he inspected the spot and recovered some blood-stained earth and wheat ear P. 3 from the field of Hasham Khan and sealed it into a parcel vide memo. Exh. P. C: Similarly from the clover field of Dilawar he collected blood-stained earth from two places and sealed the same separately vide memos. P. D. And P. E. Both the appellants appeared before the S. I. On 20-4- 1968, who arrested them. It may be mentioned that no recovery of any weapon of offence or any other incriminating articles like the blood-stained clothes of the appellants were recovered in this case.
Dr. Abdul Majid P. W. 1 who conducted the post-mortem examination on the dead body of Mir Afsar on 18-4-1968, at 7 a.m., found a large number of injuries on his person. The number given in his statement is 36 but in fact the number of injuries is more because some of the injuries have been described as multiple abrasions or contusion marks, and injury No. 25 has been described as four incised wounds. Out of these injuries, 14 were caused by a sharp weapon while the remaining were caused by a blunt weapon. Injury Nos. 1, 2, 3, 14, 15, 21 and 22 were grievous while rest were simple.
Death in the opinion of the doctor was due to shock and haemorrhage. Injury Nos. 1, 2, 3, 14, 21 and 22 were sufficient to cause death in the ordinary course of nature.
5. After the completion of the investigation, the accused persons were challenged and were ultimately committed to stand their trial before the Court of Session. The result of the trial has already been stated above.
6. At the trial, the prosecution produced 11 witnesses in support of its case and relied mainly on the evidence of motive, the ocular evidence, the evidence of recoveries and the medical evidence.
7. The appellants when examined, pleaded innocence, and stated that they had been involved due to enmity. They did not produce any witness in their defence.
8. We have heard the learned counsel for the appellants and the learned State Counsel and have also gone through the entire record with their help.
The learned counsel for the appellants submitted that majority of the important witnesses are closely related to the deceased and inimical towards the appellants, that even otherwise their statements are discrepant and do not inspire confidence and that there is no evidence to corroborate the ocular testimony. He argued that the murder had in fact been committed during the night or in the early hours of the morning and that none of the eye-- witnesses had seen the occurrence and that the body of the deceased was discovered subsequently whereupon a false story was evolved by the P. Ws. After consultation. He urged further that the testimony of the eye- witnesses should be rejected as false and that in any case since their statements do not inspire any confidence the appellants should be given the benefit of doubt and acquitted. The learned State counsel argued, on the other hand, that the prosecution has brought home the charge to the appellants beyond any reasonable doubt.
We have considered the evidence on the record in the light of the above--mentioned contentions and are inclined to agree with the learned counsel for the appellants. As is apparent from the narration of facts, the alleged motive itself shows that there was hostility between the family of the deceased and the appellants over the land left by Fazal Khan, which was the subject matter of the litigation. Moreover, the defence proved a number of judgments or orders showing previous litigation and ill-will between the parties, t these shall be discussed later). It will be noticed further that Haq Nawaz P. W. 10, the first informant, is not himself an eye-witness of the occurrence. The eye-witnesses are Ahmad Jan P. W. 7, Ashraf Khan P, W. 8, and Banaras Khan P. W.
9. It is admitted by Izzat Khan P. W. 5, whose brother Zabtan Khan is the father-in-law of the deceased that Ahmad Jan, Banaras and Haq Nawaz P. Ws. And he himself were members of the same family. Ahmad Jan P. W. 7 has also admitted this fact during the cross-examination, though indirectly. It is also admitted that Banaras P. W. 9, another eye-witness, is a nephew of Ahmad Jan P. W. 7, another eye-witness, i3 a nephew of Ahmad Jan P. W.
7. Ahmad 'fan P, W. Has admitted that Sher Afzal son of Namdar was his cousin and that Muhammad Daud is the latter's brother. He denied, however, that Yousaf Khan appel--lant had brought a case under section 382, P. P. C. Against the said Sher Afzal, his son Muhammad Umar, his brother Muhammad Daud and his maternal uncle Muhammad Hayat. But the defence, produced a judgment (Exh. D. H. Printed at page 25 of the paper-book, by Ch. Faiz Ahmad, M. I. C., Campbellpur, relating to the above-mentioned cease against Sher Afzal etc. The judgment shows that Yousaf Khan appellant was the com--plainant while Sher Afzal etc. Were the accused persons. The witness; however, admitted that in 1965 security proceedings were initiated against the aforesaid Sher Afzal and others at the instance of Yousaf Khan appellant.
During the cross-examination it was suggested to Ahmad Jan P. W. 7 that in 1967 there was a case under section 371/34. P. P. C. Against the same Sher Afzal, Muhammad Daud and Muhammad Umar etc. (for beating on Ghafoor Khan, who has been admitted by Banaras P. W. 9 to be a brother of the two appellants, which was sent to the Union Council Jalalia that he appeared as a representative on behalf' of Sher Afzal and Muhammad Daud etc. In the Conciliation Court; that a compensation of about Rs. 50 was awarded to Ghafoor Khan and that he (Ahmad Jan P. W. 7) had disagreed with the verdict and dissented with it. Ahmad Jan P. W. 7, however, stated that he did not remember any of these facts, but the defence, produced s copy of a judgment (Exh. D. N. Printed at page 31 of the paper-book) of the Conciliation Court Jalalia, which shows that all the suggestions trade to Ahmad Jan P. W. Were correct: This dices .Not oily go to show that Ahmad Jan P. W has no respect for truth but also that, he has told deli--berate lie at the trial. It also shows that he has been siding with his cousin her Afzal and his relatives as against the appellants' ramify, in the above noted litigation. It can, therefore, be safely presumed that tie was not cats the best of relations with the appellants.
Thus it is obvious that he is not only related to the deceased but has also strained relations with the appellants' family.
9. As for, Banaras P. W. 9, he is a nephew of Ahmad Jan P. W.
7. He has admitted that his wife is a daughter of aforesaid Sher Afzal and also that his mother and the wife of the said Sher Afzal are real sisters inter se. Of course he denied vehemently that any criminal case had been instituted by Yousaf Khan appellant against Sher Afzal and his son Muhammad Umar etc., but it has already been mentioned that the defence produced a judgment relating to this case showing that Yuosaf Khan had indeed instituted such a case (under section 382, P. P. C ). From this it can safely .Be inferred that this witness too has no respect for truth and has deliberately attempted to suppress the facts in order to strengthen the pro--secution case by trying to show that he was an independent witness and his relations (Sher Afzal etc.) had no litigation with the appellants. As already mentioned he is related to the deceased party. No doubt the deceased, the appellants and these witnesses belonged to the same family but the above--mentioned facts, go to show that, within the family; the relations between Ahmad Jan and Banaras P. W. And the two appellants are quite strained, and that they are inclined to help the complainant party as against the appellants.
They can, therefore, be called interested witnesses, Moreover, they are chance witnesses. Their testimony would have to be 'scrutinised with care and would also require corroboration.
10. Ashraf Khan P. W. 8, the third eye-witness, is of course no related to the deceased but his statement, reveals that he is a friend of Banaras P. W.
9. Moreover, like Ahmad Jan and Banaras P.
Ws. He is merely a chance witness and the explanation given by him, and the eye-witnesses for their presence near the place of occurrence is not very convincing. Apart from this his statement is full of discrepancies, which renders the same doubtful and unreliable. He stated at the trial that he alongwith Banaras P. W. Was going to purchase Ammonium Sulphate from village Jalalia to the Mandi of one Aslam, situated on Hazro-Tarbela Road where one Dilawar had stored the same. He, had, however, not stated so before the police. In his statement before the police, he had taken up the position that he was going in connection with his `own personal business'. Moreover, he stated at the trial that the Mandi of Aslam mentioned by him is situated "within the area of village Jalalia", whereas before the police he had stated that he was going from village Jalalia all the way to Ghurgushti in connection with his personal business. Before the committing Magistrate, however, he had stated that he and Banaras P. W. Were going to buy the fertiliser from Ghurgushti. It will be noticed that there has been a gradual change in his statement. At first before the police he said that ire was going to Ghurgushti for his personal business. Before the committing Magistrate he said that he was going to buy fertiliser from Ghurgushti. At the trial, however, he improved his statement further and stated that he was going to: buy Ammonium Sulphate from the mandi of one Adam, situated in a place within the area of village Jalalia and that he was not going to Ghurgushti Banaras P. W. 9 also made similar improvements in his state--ment. The reason for this appears to be that if one has to go from JaIalia to Ghurgushti, or any place situated on the road leading to Ghurgushti, i.e. On Ghurgushti-Tarbela Road, the nearest way is different from the one that these witnesses had taken. This is evident from the following portion of his statement made by him during the cross-examination:- " . . . There is a pucca road in between Jalalia and Ghurgushti. Ghurgushti Bus Stand is known as Miskinabad. It is correct that if one has to go to a place on Ghurgushti-Tarbela Road from any village, the nearest road will be the one which links my village and Miskinabad by the said road -- -."
Realising that they can be criticised as to why they did not take nearest route to Ghurgushti, which is Ghurgushti-Tarbela Road, via Miskinabad he introduced an improvement that they were going only to the mandi of Aslam which lies within the area of village Jalalia itself. It may also be mentioned here that Ahmad Jan P. W. 7 made the following statement with regard to the route taken by him and the other eye-witnesses:- "Had I proceeded to Ghurgushti from my village via Miskinabad, the spot does not fall on the way."
This admission by Ahmad Jan P. W. Also supports the contention that Ashraf Khan and Banaras Khan P. Ws. Improved their statements to furnish a com--paratively plausible reason for going by the road on or near which the occurrence took place. From this as well as the other improvements made by Ashraf Khan P. W. 8 with regard to the actual occurrence, we feel that he too has no respect for truth.
The statements of the other two eye-witnesses, namely, Ahmad Jan P. W. 7 and Banaras Khan P. W.
9 suffer from similar defect and also cannot be relied upon. Moreover, as shown above, they had strained rela--tions with the two appellants and corroboration of their testimony, qua the accused persons is required. But no such corroboration, in the shape of the recovery of blood-stained clothes or weapon of offence is forthcoming on the record. However, even if there were such recoveries, they would have not advanced the case of the prosecution inasmuch as we are not) inclined to believe the statements of the above-noted witnesses.
11. It may also be pointed out that there are inherent defects in the prosecution story. According to the prosecution the three eye-witnesses were about 10 or 12 paces ahead of the deceased and the two appellants were following him at a similar distance. When they raised a lalkara, the natural thing for the deceased should have been to run towards the three eye-witnesses in order to seek protection rather than running towards the field of the appellants' father Hasham Khan. Moreover it is also unnatural that the appellants should have tarried at the place of occurrence to inflict as many as 40 or more injuries. To cause so many injuries must have taken a considerable time. It can reasonable be, assumed that a person attacking another with a view to kill him would not like to take so much time in inilicting unnecessary injuries on him as that would only mean delay and a possibility of being caught by some one in the act. The anxiety of the assailants in such cases, always is to do the job as quickly as possible and then escape without being detected or apprehended. The number of injuries found on the person of the deceased indicates that the murder was committed at leisure which shows that it was probably committed during the night or in the early hours of the morning, when it was still dark and no one was around to see the occurrence. Since we have disbelieved the eye-witnesses, the other evidence on the record, namely, the statements of Haq Nawaz P. W. 10, the first informant, who has proved the F. I. R., the investigating Officer, the doctor and the formal witnesses need not be con--sidered because the same is not sufficient, by itself, to bring home the charge R to the appellants.
12. The not result of the above discussion is that we feel that the prosecution case has not been proved beyond reasonable doubt. We, there--fore, accept the appeal, set aside the impugned judgment and acquit the appellants. They should .Be released forthwith if they are not wanted in any other case. This disposes of the appeal as well as the reference.