K. M. A. SAMDANI, J.----This judgment will dispose of Murder Reference No. 113 of 1970 and Criminal Appeal No. 499 of 1969, both arising from the judgment dated 20th June, 1969, of Kh. Muhammad Ashraf, Additional Sessions Judge, Gujrat, whereby he convicted all the four appellants under section 302/307/323/324, P. P. C. Read with section 34 thereof. While awarding sentences, however, the learned Addl. Sessions Judge, sentenced appellant No. 1 Bashir son of Fateh Muhammad to death under section 302, P. P. C. And the other appellants to transportation for life under that section. Hence the reference in respect of Bashir son of Fateh Muhammad. For the other offences, the appellants have been uniformly sentenced to 2 years' R. I. Each under section 307, P. P. C., 1 year R. I. Under section 324, P. P. C. And 6 months' R. I. Each under section 323, P. P. C.
2. The prosecution case is as follows:--- On the 18th of May 1967, at dopeherwela Muhammad Amin complainant (P. W. 11) was informed that the cattle belonging to Fateh Muhammad, the father of Bashir Ahmad appellant, were damaging his crops. Thereupon the complainant went to his field, collected the cattle and started driving them towards the cattle pound. Riaz son of Fateh Muhammad who was there to look after the cattle ran away to inform his own people that the cattle were going to be impounded. When the complainant got near his own khilwara, he was challenged from behind by Anwar appellant, when he turned back he found Anwar appellant armed with a pistol, Bashir son of Nur Alam and Bashir Ahmad son of Fateh Muhammad appellants armed with spears and Azam appellant armed with a sota, mounted on two mares approaching him. Anwar appellant fired at the complainant but missed him as he ducked and threw himself fiat on the ground. Then Anwar appellant fired at Ahmad Din P. W. Which hit him on the right side of his chest as result of which he fell down. Anwar appellant also fired a third shot but it went astray. Azam appellant hit the complainant with his sota. Bashir son of Nur Alam appellant dealt a spear blow to Charagh Din P. W. Which injured his left hand. He also gave a second spear blow to Charagh Din which landed on his left shoulder. Azam appellant also hit Charagh Din on his right shoulder with his sota. Bashir Ahmad son of Fateh Muhammad appellant attacked Muhammad Latif deceased with a spear and the blow dealt by this appellant proved fatal. These injured witnesses and the deceased were with the complainant when he had been first informed of the damage to the crop and the prosecution case appears to be that they followed him when he drove the cattle towards the cattle pound. However, after injuring their adversaries the appellants are said to have run away from the scene leaving their mares behind. The mares and the cattle in question were later siezed by the police.
As against this, the defence version is that Muhammad Amin, Ahmad Din and Charagh Din P. W.
Alongwith Muhammad Latif, deceased and one Muhammad Sharif had committed dacoity and snatched away two mares, one buffalo, and three calves belonging to the appellants and in order to forestall possible prosecution they brought this false case against the appellants. The fact that Muhammad Latif deceased died and the witnesses sustained injuries on or about the 18th May 1967, is not denied by the defence. But their explanation is that the deceased was killed by his enemies, Lal and his brothers Sultan and Sardara who also injured the prosecution witnesses but subsequently Lal and his brothers patched up with the complainant party thus affording them an opportunity to substitute the appellants for the real culprits.
3. The defence version may not sound very plausible or convincing enough to persuade this Court to dismiss the prosecution case out of hand. But a close scrutiny of the prosecution evidence has revealed such irreconcil--able inconsistencies in the prosecution case as are sufficient to raise a reasonable doubt as to whether Muhammad Latif deceased met his death and the injured P. Ws.
Came by their injuries at the hands of appellants.
4. Muhammad Amin, Ahmad Din and Charagh Din P. Ws. Are brothers inter se and Muhammad Latif deceased was the brother-in-law of Ahmad Din P. W. Thus it is clear that the three eye-witnesses examined in this case are closely related to the deceased. It is true that mere relationship with the deceased is not sufficient to discard the testimony of the witnesses particularly when, as in the present case, no previous enmity existed between the parties. But the fact remains that two independent persons, namely, Fateh Muhammad and Nazar Muhammad were mentioned in the F.
I. R. As eye-witnesses and they were not produced to support the prosecution case. This circumstance alone is enough to show that this is not a case of clean prosecution.
Further, according to the F. I. R. Bashir Ahmad son of Fateh Muhammad appellant hit the deceased with a spear on his abdomen. But the medical evidence shows that the deceased sustained the injury on his back. It may be mentioned here that only one injury was found on the body of the deceased. It is true that while deposing before the trial Court, the witnesses did state the deceased had been hit on his back but it was obviously an attempt to cover up the inconsistency between the F. I. R. And the medical testimony. This is, however, not the only somersault that the complainant and the other eye-witnesses have taken in this case. If it were so, it could be explained away as a slip of the tongue on the part of the complainant. But he also stated in the F. I. R. That acting m self- - defence he had hit Azam appellant with a tarangal but no injury was found on the person of Azam appellant. Instead Anwar appellant was found to have sustained a lacerating wound on his forehead at about the same time as the occurrence is stated to have taken place. Again, the witnesses had to contradict the F. I. R. In order to bring their testimony in line with the medical evidence. It is hard to believe that the events became clearer in the memory of the witnesses eleven months after the occurrence i. e. At the time of the trial, than they were on the day of the occurrence when the first report was lodged.
6. It is also an admitted fact in this case that the bullet which had been recovered from the chest of Ahmad Din P. W. And delivered to the police was never sent to the Forensic Expert for an opinion as to whether it matched with the pistol (P. 1) which is said to be the crime weapon used by Anwar appellant. This failure on the part of the prosecution does not appear to be merely the result of negligence or inefficiency when viewed in the independent eye-witnesses. It clearly indicates that at least a part of the truth has been concealed from the Court. And no conviction can be based on part truth.
It has further been brought to our notice that according to the prosecu--petition Muhammad Latif deceased did not die on the spot. He was taken to the hospital alive where he was examined by a doctor ante-mortem. He died subsequently on the 19th May 1967, in the hospital. But Abdullah Khan F. C. (P. W. 4) stated unequivocally that he escorted the dead body from the spot to the mortuary on the 18th of May 1967, and the post---mortem examination was held on the 19th. This clearly indicates that Muhammad Latif deceased died not only on the 18th of May 1967, but also on the spot. No attempt was made by the prosecution to explain this inconsistency. Abdullah Khan P. W.
Could have been cross-examined by the prosecutor on this point. This may just be an oversight on the part of the Prosecutor but the benefit of the doubt arising from the testimony of this constable will have to be given to the appellants.
7. As for the motive that the appellants attacked Muhammad Amin complainant, his brothers and the deceased in order to rescue their cattle, we think that it has not been satisfactorily established either. For, accord--ing to Muhammad Amin P. W. He was challenged and attacked near his khilwara while he was driving the cattle belonging to the appellants from his field where the crop had been allegedly damaged to the cattle pound but the admitted in his cross-examination that his khilwara did not fall on the way to the cattle pound from his field in which the crop had been allegedly damaged. It is, therefore, not clear as to why he had to go to his khilwara at all. Further, he says that when the assailants ran away after the attack he took hold of their mares and the cattle and handed them over to Ghulam Rasul P. W. For safe custody. This Ghulam Rasul has appeared as P. W. 10 in the case and stated that people of the village were holding the cattle until he went there and took over the cattle from them. Therefore, the story of motive also appears to be a cock and bull story.
8. In view of the flaws in the case discussed above, we are of the opinion that the possibility of substitution or at least of distortion of facts cannot be ruled out. Consequently we accept the appeal, set aside the convictions and sentences recorded by the Additional Sessions Judge, and acquit all the four appellants. The sentence of death is not confirmed.