Asadullah alias Sadullah son of Muhammad A.I Khan, aged 51 years, his brother-in-law Mushtaq, aged 41 years and Muhammad Iqbal alias Bala, aged 51 years, both sons of Doley Khan, his nephew Muhammad Ashraf son of Barkat A.I, aged 36 years, Tufail Muhammad alias Tufaila son of Ghulam Muhammad, aged 25 years, and Mehr Shah son of Ganj Bakhsh, aged 71 years, have been convicted under section 302/149, P. P. C. For the murder of Khurshid and each of them was sentenced to transporta--petition for life, vide judgment dated the 27th of April 1971, of the Additional Sessions Judge, Sargodha. They were also convicted under section 148, P. P. C. And sentenced to two year' R. I. Each. The sentence awarded to them have been ordered to run concurrently. The appeal of the convicts except Tufail Muhammad alias Tufaila is before me, which is being disposed of by this judgment.
2. The occurrence took place at sun-rise time (6 a.m.) on the 9th of July 1968, in Chak No. 130 Janubi, at a distance of 8 miles from Police Station Sillanwali, District Sargodha. Statement (Exh. P.
G.) was made by Abdul (P. W. 6), brother of the deceased, to Ghulam Qadir S. I. (P. W. 14), on the same day at 12-35 p.m. In Chak No. 121 G. B. Which is at a distance of 8/9 miles in the North from the place of occurrence as well as from Police Station, Sillanwail, where Ghulam Qadir S. I. Was stated to be on investigation duty. Formal F. I. R. (Exh. P. G./I) based on this statement, was registered at Police Station, Sillanwali at 4 p.m. On the same day by Sarfraz Khan N. M. (Y. W. 4).
3. The motive for crime as set up by the prosecution is that Mehr Shah appellant while drunk had behaved in a disorderly manner in the village and against his behaviour a report was lodged with the police by the deceased on the 13th of June 1968. Besides this incident there is a long history of criminal litigation of the appellants against the partisans of the deceased.
4. The eye-witnesses produced by the prosecution in this case are Abdul (P. W. 6) brother of the deceased, Mehndi Hassan (P. W. 8), a shop--keeper, not mentioned as an eye-witness in the F. I. R., but stated to be a partisan of the complainant party. Niamat A.I (P. W. 9) also stated to be a partisan of the complainant party, and inimical towards the appellants; and Bashir Ahmad (P. W.
10), employer of the deceased. Muhammad Ashraf son of the deceased had been cited Qs an eye- witness in the F. I. R. And was produced before the Committing Magistrate but was given up as unnecessary at the trial. However, he was got examined as C. W. 1.
5. The appellants were arrested on the 11th of July 1968.
The recoveries in this case are not of any corroborative value. However, these are as follows: gun P.
6 and five live cartridges recovered from Asadullah appellant and taken into possession vide memo. Exh. P. F., lathi P. 5 (not blood-stained) recovered from Mushtaq appellant and taken into Possession vide memo. Exh. P. E., lathi P. 2 not (blood-stained) recovered front Muhammad Ashraf appellant and taken into possession vide memo. Exh. P. A. Lathi P. 4 (not blood-stained recovered froze Tufail Muhammad and taken into possession vide memo. Exh. P. D., and khunda P. 3 (not blood-stained) recovered from Mehr Shah appellant and taken into possession vide memo. Exh. P.
C. The attesting witnesses of these recoveries are Arsala Khan S. I. (P. W. 7) and Sardar Ahmad (P.
W. 5) also stated to be a partisan. Hamit Khan, the third attesting witness was not produced. Id may be noted that no blood-stained earth was picked up from the spot in this case nor there are any crime empties.
6. Dr. Abdul Shakoor (P. W. 1) performed post-mortem examination on the, dead body of the deceased at 3 p.m. On the 10th of July, 1968, and found on his parson 35 injuries in the form of contusions, abrasions, con--tused wounds, on the head forehead, face, shoulders, neck, right and left temples, eyes, arms, chest, buttocks, thighs, feet, knee joints and elbows In his opinion, the cause of death was shock produced by multiple injuries on the body of the deceased collectively.
All the injuries had been caused by blunt weapon. It may be pointed out that the deceased had sustained nor incised injury nor incised injury which could have been caused by a khunda.
7. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They disowned the recoveries made from them except gun P.
6. Which was licensed in the name of Asadullah appellant and stated that they had been falsely implicated due to enmity of the complainant faction. They also produced Ch. Iftikhar Hussain Naib Moharrir of Police Station, Sillanwali as D. W. 1 to prove the F. I. R.'s establishing the enmity of the P. Ws. Against the appellants and their partisanship.
8. In the F. I. R. The occurrence reported to have taken place in the following manner: on the fateful day Abdul P. W, and Muhammad Ashraf (son of the deceased who had been given up) were coming together towards the chowk of Chak No. 130 Janubi when they noticed. That the appellants and Tufail Muhammad armed with sotas and Asadullah appellant armed with gun had come there. The deceased had gone to the chowk for taking fire. The appellants shouted at him and after abusing him said to him that the deceased had given evidence before the Sillanwali Police against Muhammad lqbal and Mehr Shah for being goondas. Thereafter. Mehr Shah appellant gave a sang blow to the deceased which fell on his head. Abdul P. W. Thereupon raised alarm on which Assadullah appellant shouted at them loudly that let the deceased be lifted from there and taken to their house for murdering him. In the meantime, Bashir Ahmad (P. W. 10) and Niamat A.I (P. W. 9) had also been attracted to the scene of occurrence. The P. Ws. Went on raising alarm but Asadullah appellant pointing his gun towards them threatened them not to come near. Thereafter, all of them took the clef-eased to the house of Muhammad Ashraf appellant in order to murder him. The deceased was taken inside the haven of Muhammad Ashraf appellant arid there was beaten by dangs, and hit by gun-fire until he was murdered. While the appellants were beating the deceased inside the haveli the occurrence was witnessed by Bashir Ahmad, Niamat A.I and Abdul P. Ws.
9. I have heard learned counsel for both the sides in detail and have carefully perused the record.
The testimony of Muhammad Ashraf (C. W. 1), son of the deceased read alongwith that of Ch. Iftikhar Hussain (D. W. l) indicates that the parties were inimical and hostile to one another. It is also borne out by the record that they had a long history of criminal litigation, the appellants being on one side and the partisans of the deceased being on the other. The eye-witnesses in this case, therefore, are partisan and interested. Their testimony can only be accepted if it is corroborated by independent evidence which is not forthcoming in the present case as the evidence of recoveries is of no corroborative value. What one is left with is the tainted testimony of the eye-witnesses against the appellants. At any rate, even the version given by the prosecution of the occurrence is rather strange. In the F. I. R. It is stated by Abdul P. W., brother of the deceased, that the appellants attacked the deceased in the village chowk and Mehr Shah appellant gave him a sang blow on the head. The occurrence, accord--ing to him, was witnessed by himself, Niamat A.I, and Bashir Ahmad P. Ws. As well as Muhammad Ashraf C. W. However, in the statements before the trial Court some of these witnesses had stated that Mohr Shah appellant had given a blow on the head of the deceased with a khunda which he carried. Again in the F. I. R. It is stated that the deceased was done to death by the appellants with dangs, and he was also fired at. The account of the occurrence given in the F. I. R. Is in conflict with the medical evidence for there is neither any incised injury on the person of the deceased nor he has sustained any fire-arm injury. However, it is not clear from the account given in the F. I. R. As to whether only Niamat A.I and Bashir Ahmad P. Ws.
Had seen the second part of the occurrence. The F. I. R. Is silent on this point. But before the trial Court, the prosecution version is that first part of the occurrence i.e. Lifting of the deceased from the village chowk and one injury having been caused to him on the head by Mohr Shah appellant was witnessed by Abdul, Niamat A.I and Bashir Ahmad P. Ws. And Muhammad Ashraf C. W. The F. I.
R. Does not mention the name of Mehndi Hassan P. W. As an eye-witness. He was introduced subsequently and the only explanation given by Abdul P. W. For not mentioning him in the F. I. R. Is that he forgot to do so. Accord--ing to the statements made in the trial Court by the P. Ws., Niamat A.I and Bashir Ahmad P. Ws. Followed the appellants when they took the deceased to the house of Muhammad Ashraf appellant for the purpose of murdering him. But Abdul, Mehndi Hassan P. Ws.
And Muhammad Ashraf C. W. Remained in the chowk and did not follow them. Thereafter, the prosecu--petition version is that after 1-- or 2 hours Niamt A.I and Bashir Ahmad P. Ws. Returned to the chowk to inform the other P. Ws, that the appellants had murdered the deceased inside the house of Muhammad Ashraf appellant and then Abdul P. W. Proceeded to the Police Station to lodge a report. This version is strange in more than one ways. Firstly, it is difficult to understand as to why only Niamat A.I and Bashir Ahmad P. Ws. Followed the appellants and not his brother and son, namely, Abdul P. W. And Muhammad Ashraf C. W. Secondly, it is difficult to accept that they waited in the chowk for 1f or 2 hours during which period the appellants gave beating to the deceased in the house of Muhammad Ashraf appellant and when they had killed him only then Niamat A.I and Bashir Ahmad P. Ws. Returned to the chowk to inform Abdul P. W. And Muhammad Ashraf C. W. That the deceased was murdered by the appellants. Obviously, if the appellants had taken the deceased to the house of one of them for murdering him, the son and the brother of the deceased could have not remained in the chowk. They should have followed them. If they were afraid of their lives, then during 1-- or 2 hours they could have got assembled the whole of the village and taken many other helpers to the house of Muhammad Ashraf appellant where the deceased was being killed. Their behaviour is most unnatural. Apart from this there are material discrepancies in their statements i.e. There is no consistency in the account of the eye-witnesses as to whether the deceased was given a khunda blow on the head by Mehr Shah appellant or a danda blow. Similarly, the version in the F. I. R. Is to the effect that even fire-arm was used at the deceased whereas subse--quently in order to bring the statements of the P. Ws. In conformity with the medical evidence, the position taken by Niamat A.I and Bashir Ahmad P. Ws. Was that after having killed the deceased with dang blows, the appellants fired in the air. This also makes the version quite improbable.
Further, it is difficult to understand why Abdul P. W. Went to Chak No. 121/G. B. To lodge the report, i.e. The place being at a distance of 8/9 miles in the north of the place of occurrence as well as from Police Station, Sillanwali. According to him, he did not go to Sillanwali because some one (not produced as P. W.) had informed him that no police officer was present at Sillanwali Police Station, although it is on the record that there were more than one police officer attached to Police Station Sillanwali. The occurrence took place at about 6 a.m., but the statement of Abdul P. W. Was recorded at 12-35 p.m. The delay in lodging the report also makes the prosecution story doubtful.
The defence version is that the deceased was a badmash, that he was murdered outside the village by some unknown assailants, unwitnessed by any one and that his dead body was thrown into the courtyard of the house of Muhammad Ashraf appellant. It may be noted that there is no blood-stained earth picked up in this case to determine the venue of the occurrence. It is, therefore, not possible to say definitely as to where the deceased was done to death. It is also not clear that if the appellants wanted to kill the deceased, why did they not kill him in the chowk. But if they had lifted the deceased from the chowk, brought him to the house of Muhammad Ashraf appellant and murdered him there, then they could have subsequently thrown the dead body of the deceased outside in the street instead of leaving it in the courtyard of Muhammad Ashraf appellant. The defence version, therefore, is that the appellant, had been falsely implicated in this case because the P. Ws. Were all inimical and hostile towards them besides being interested and partisan.
I have carefully considered the arguments raised by learned counsel for the appellants. The prosecution version of the occurrence raises many doubts. According to the site plan, there is a broken wall on one side of the courtyard of Muhammad Ashraf appellant. It is reasonably probable that the body of the deceased was thrown into the courtyard from there, even if it be assumed that the door to the courtyard was bolted from inside. In the light of what has been discussed above, it is doubtful if any of these eye--witnesses had really seen the occurrence for even according to the prosecu--petition version they came to the village chowk as chance witnesses. Further, since they are partisan and interested, it would not be safe to rely on their testimony unless and until it finds independent corroboration. But there is no corroborative evidence in this case. The version given in the F. I. R. Is certainly in conflict with the medical evidence, since the testimony of these interested witnesses is uncorroborated, in my opinion, it would not be safe to rely on them. In the circumstances, the learned trial Court should have given the benefit of doubt to the appel--lants which I hereby give to them. Their conviction and sentences are accordingly set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case.
10. I note that Tufail Muhammad alias Tufaila, one of the co-convicts, has not filed an appeal, but relying on Ghulam Mustafa v. The State (PLD 1960 Lah. 290) as I am acquitting all the appellants in this case by giving them the benefit of doubt. Tufail Muhammad alias Tufaila co-convict who has not preferred an appeal and whose case is identical is also given the benefit of doubt, his conviction and sentences are likewise set aside and he is acquitted. He shall be released from jail forthwith if not wanted in any other case.