1. MUSHTAQ HUSSAIN, J.---The learned Sessions Judge, Dera Ghani Khan, has convicted Ata Muhammad son of Gulzar Khan, aged 55 years and his son Kamal, aged 25 years, under section 302/34, P. P. C. And by his order dated 28-7-1971 has sentenced both of them to death for the murder of Noor Muhammad son of Hussain aged 18 years on 28-5-1970 at sun-set in a Gali of village Yaru at a distance of 3 miles from Police Station Batil.
2. By the same order, the learned Sessions Judge has acquitted their co---accused Sobha, Noor Ahmad and Muhammad Ishaq. The convicts as well as the acquitted accused are all related and the acquittal is based on the finding that the prosecution failed to prove its case against them.
3. The prosecution case is that Ghulam Hassan (P. W. 11), Ahmad Khan, Ishaq, Ata Muhammad and Noor Ahmad jointly owned land at Chah Dorattawala in village Yaru. This joint holding was partitioned orally by way of a family settlement. Ata Muhammad appellant and Muhammad Ishaq acquitted accused, however, went back upon this agreement and they wanted the land to be divided again. Ghulam Hassan (P. W. 11) and his nephews, however, declined to agree.
4. On the fateful day at peshiwela Ata Muhammad appellant and Ishaq started watering the land of Ahmad Khan, nephew of P. W.
11. They wanted to plough it and to cultivate it. P. W. 11's other nephew, Noor Muhammad and Chakar came to know of it, went to the spot and asked the trespassers to desist from whatever they were doing. Ishaq and Ata Muhammad, however, replied that the entire land was jointly held and it was open to them to till any plot out of it. They categorically stated that they were not prepared to abide by the family partition. This led to exchange of abuses. Ata Muhammad said that he would teach them a lesson while Ishaq warned that Noor Muhammad will not be able to set his foot on that land again if Ishaq remained alive.
5. Noor Muhammad and Chakar returned to Ghulam Hassan (P. W. 11) and informed them of the occurrence. Ghulam Hassan decided to place the matter before the biradri.
6. At about sun-set time, however, P. W. 1 I heard a hue and cry while he was sitting in his own house.
7. He came out and found that Noor Muhammad, his nephew, was trying to run into his house through the back wall. Ata Muhammad son of Sobha, Kamal son of Ata Muhammad. Ishaq son of Abdullah Khan who were armed with katis and Noor Ahmad son of Karam Khan armed with a kulhari had encircled him; Ata Muhammad and Ishaq were inflicting blows with their katis on the abdominal region of Noor Muhammad while Sobha and Kamal were shower--ing blows with their katis on Noor Muhammad's chest.. Noor Ahmad stood guard with the hatchet in his hand and did not allow anybody to come near. The noise attracted Chakar and Ibrahim P. Ws. 12 and 13 who are both brothers. Noor Muhammad meanwhile fell down on the ground, but all the four assailants continued to inflict blows upon him even when he had fallen down. Noor Muhammad then tried to drag Ata Muhammad into the door of his house. They were challenged by P. Ws. 11, 12 and 13 and consequently they ran away leaving the dead body there. Noor Muhammad died at the spot.
8. Ghulam Hassan (P. W 11) then repaired to Police Station Batil where he lodged F. I. R. Exh. P. A. At 7-50 p.m. Which was taken down by Mushtaq Hussain Shah, Assistant Sub-Inspector Police (P. W. 14).
9. Having recorded the F. I. R., P. W. 14 reached the spot, prepared the in--quest report and injury statement and went through other formalities of investigation. He arrested Ata Muhammad, Sobha, Kamal and Noor Ahmad accused on the following day. He recovered shirt P. 3 and chaddar P. 4 were blood-stained, from the person of Kamal accused who also carried injuries on his person. He consequently prepared his injury statement Exh. P. L. Since Ata Muhammad was also injured, the A.
10. S. I. Prepared his injury statement, as well. He recovered blood-stained kati P. 1 from a kotha at the instance of Kamal accused and another blood-stained kati P. 6 at the instance of Ata Muhammad from another kotha. Sobha accused got blood-stained kati P. 7 recovered from a brick-kiln at Chah Dorattawala. Noor Ahmad led to Chah Chattehwala and had kulhari P. 8 recovered from a kotha there, Having completed the investigation he challaned the accused.
11. At the trial Ata Muhammad claimed that he and his son Kamal were present in the Court of Syed Sabir Hussain, Magistrate First Class, in connection with security proceedings, against Kamal and returned home after sun-set time. He heard an alarm and saw that Noor Muhammad deceased, who had a kati, and Kamal accused were grappling. The former was trying to injure him while the latter was parrying his blows. Ata Muhammad tried to snatch the kati from Noor Muhammad and injured palm of his right hand in the bargain. Finding himself helpless, he ran to fetch help and when he returned Kamal told him that he had been able to snatch the kati from Noor Muhammad deceased who had died at his hands. Sobha pleaded innocence. Kamal supported the story given out by his father, Noor Ahmad. Muhammad Ishaq also professed to know nothing about the matter.
12. The prosecution produced 14 witnesses in all in support of its case with the result already indicated above.
13. Dr. Muhammad Sharif Abbasi appeared as P. W. 1 and testified to having performed the post- mortem examination on the dead body of Noor Muhammad. He found 41 incised or stab wounds on the dead body. The wounds ranged from 7----- to 1/3' in length and from 2----- to --' in width.
14. The doctor was of the view that injuries No. 3 and 13 could be caused with hatchet P. 8 while the others were caused by some cutting weapon. He further found that there were no drag marks on the person of Noor Muhammad deceased at the time of the examination. The evidence of the doctor proves that Noor Muhammad died a violent death as a result of a large number of injuries sustained by him from more than one kind of weapon one of which could be a hatchet. It also proves that the deceased was not dragged as the prosecution would have us believe.
15. Dr. Saleem Beg Mirza appeared as P. W. 2 and stated that on examining Kamal on 31-5-1971 he had found 7 minor injuries on his person. Only two of which had length as well as breadth while the other three had only length but no breadth. He also found that all these injuries were encrusted.
16. He also examined Ata Muhammad on the same day and found two linear incised wounds --' long on the thumb and base of little finger, on both of which the crust had already formed. He was of the view that injury No. I upon the person of Kamal could not be self-suffered or self---inflicted. The F: I.
17. R. Does not mention any injuries on the person of the accused. Dragging of Noor Muhammad deceased by the accused persons has been positively alleged in the F. I. R. But the doctor has found no drag marks whatsoever on it.
18. Ilahi Bakhsh (P. W. 7), Qadir Bakhsh (P. W. 8) and Syed Mushtaq Hussain Shah (P. W.14) the Sub- Inspector, appeared to prove the recoveries of kati P. 6 from Ata Muhammad and P. 5 from Kamal.
19. In paragraphs 24, 25 and 26 the learned Sessions Judge has dealt with the recovery evidence and has on the basis of very cogent reasons disbelieved the recoveries of these weapons. We have no quarrel with the finding arrived at by him in this regard and agreeing with him we hold that the recoveries are ill-founded and were not effected from or at the instance of the appellants. So far as the blood-stained clothes are concerned, although Ata Muhammad, appellant is said to have been wearing them, they were, not taken into possession. In any case, since the arrests were made a day after the incident it will be highly preposterous even to suggest that the assailants would have continued to clad themselves in clothes smeared with blood and thus proclaim to the world that they had committed a murder.
20. The ocular testimony has been provided by Ghulam Hassan (P. W. 11), Chakar (P. W. 12) and Ibrahim (P. W. 13). Ghulam Hassan, the complainant, is the husband of Chakar's sister; Chakar and Ibrahim are real brothers; and their other sister is the widow of the deceased. Admittedly parties are at daggers drawn. Ghulam Hassan (P. W. 11) had admitted in his examination-in-chief that Noor Muhammad deceased on the one side and Muhammad Ishaq accused on the other were proceeded against under section 107, Cr. P. C, 4/5 days before the occurrence. Ata Muhammad, appellant, had made an application to the Superintendent of Police pray--ing that Ghulam Hassan (P. W. 11), Noor Muhammad deceased, Chakar (P. W. 12) Ibrahim (P. W. 13) and Lai Khan (P. W. 9) be bound down to keep the peace. On the basis of this application, the police proceeded against Ahmad brother of Noor Muhammad deceased and Chakar P. W. On the one hand and Ata Muhammad on the other. On the day of occurrence, Allah Diwaya, a servant of Noor Muhammad deceased, on the one hand, and Kamal, on the other, put in bonds of appearance in proceedings under section 107, Cr. P. C. The cause of this dispute was admitted to be joint holding served by the well, known as Chah Dorattawala.
21. Not only are the witnesses and the complainant party closely related, but there is unimpeachable evidence to prove active hostility between the parties. Prudence, therefore, requires that no conviction should be based upon the tainted testimony unless it could be corroborated in material particulars. We have already found that the evidence of the so-called recoveries is tarnished and has been rightly disbelieved by the learned Sessions Judge. There is no corroborating evidence on the prosecution side at all.
22. We are now left with the admissions made by the two appellants in their statements. The medical evidence having disproved the theory of dragging and the F. I. R. Having not mentioned any of the injuries sustained by the appellants, the version given by the prosecution cannot be believed. In these circumstances, even if we were to accept the statements of the appellants it would make out a case of self-defence of person and nobody would be prepared to say that in doing so they exceeded their right. Viewed from whichever angle, therefore, the appellants cannot be saddled with culpability and we have no option but to accept the appeal, set aside the convictions and sentences and reject the Reference.
23. We have already by a short order directed that they shall be released if they are not required in any other case.