K. M. A. SAMDANI, J.-This judgment will dispose of Murder Reference No. 146 of 1971 and Criminal Appeal No. 525 of 1971, arising from the judgment dated 13th of July 1971 of Mr. Muhammad Amir Malik, Addi--tional Sessions Judge, Lyallpur, whereby he convicted Khurshid appellant, a young ,man of 25, resident of Chak No. 422/J. B. Of Lyallpur District under section 302, P. P. C. And sentenced him to death for the murder of Shaukat deceased another young man, aged 20 years, of the same village.
2. According to the prosecution, the deceased and the appellant had a quarrel at 10-00 a.m. On the 21st of October 1970, and exchanged abuses. However, two older persons, namely, Abdul Karim and Rana Abdul Waheed, intervened whereupon the appellant went away declaring his intention to settle the score soon. The same day at 4-00 p.m. When the deceased was returning to his own dera from the dhari of one Siddiq, he came face to face with the appellant near a culvert. The appellant was armed with a knife and he challenged and attacked the deceased within the sight of P. Ws. Fateh Muhammad, Bashir Ahmad and Manzur Hussain. He caused two injuries to the deceased and ran away. A couple of hours later, the deceased succumbed to his injuries.
The case of the appellant is that he is innocent and has been involved in the case on account of suspicion. According to him, the witnesses have lied.
3. Out of the three eye-witnesses cited, only two, namely, Fateh Muhammad an uncle and Bashir Ahmad a younger brother of the deceased were examined at the trial. The third namely, Manzoor Hussain, a distant uncle of the deceased, was given up by the prosecution but examined as a Court witness. Now, Fateh Muhammad P. W. Is the man who lodged the First Information Report in this case. According to this, report the deceased took to his heels when he was challenged by the appellant near the culvert. Nevertheless the appellant managed to stab him in the back with his knife whereupon the deceased caught hold of the appellant and took him into his grip. But the appellant successfully extricated himself from the grip of the deceased by stabbing his right hand and then ran away. But Fateh Muhammad P. W. Gave a different version of the incident when he appeared in the witness-box before the trial Court. In his statement before the Court, there is no mention of the attempt of the deceased to run away from the appellant on being challenged.
Instead the witness stated that the deceased caught hold of the legs of the appellant whereupon the latter gave a knife blow to the deceased and hit him on one of his wrists. Having thus been injured, the deceased released the appellant whereupon the appellant ran away. It appears from this statement that Fateh Muhammad did not witness the appellant stabbing the deceased in the back. This discrepancy between the two statements of Fateh Muhammad P. W. Has remained unreconciled.
Further, according to Fateh Muhammad P. W. The deceased was in a position to walk after having sustained the injuries. Therefore, he was taken to the dera of one Abdul on-foot. It was only after reaching the dera that his condition worsened and so he was taken from there to Gojra on a tonga.
In these particulars Fateh Muhammad P. W. Stands contradicted by Bashir Ahmad P. W. According to whom the deceased fell down on the spot and lost consciousness. So he was placed on a cot which had been brought to the spot and then he was taken from the spot to Gojra on a tongs.
4. These inconsistencies in the statements of the two witnesses, closely related to the deceased, create a reasonable doubt as to their presence near the scene of occurrence and the testimony of Manzur Hussain C. W. Confirms this doubt. For, according to him, none of the so-called eye-- witnesses witnessed the occurrence. It was he from amongst the witnesses, who happened to reach the spot first. There he found the deceased lying near the culvert and his mother present by his side. On his query Manzur Hussain was told by the deceased that he had a fight with the appellant and that he had also been injured by the appellant with a knife. This witness has also belied Fateh Muhammad and Bashir Ahmad P. Ws. On other points. However, even this witness is not reliable as he did not state either before the police or before the committing Magistrate that the deceased had charged the appellant with stabbing.
5. A possible conclusion, therefore, is that nobody witnessed the deceased being attacked and that there is no direct evidence to connect the appellant with the crime. This conclusion stands supported by the admissions of Bashir Ahmad (P. W. 9) and Manzur A.I Sub-Inspector (P. W. 10), who investigated the case, to the effect that an attempt was made by the police on their arrival at the scene of occurrence to preserve the foot-prints found there. This indicates that the police had no idea as to who the assailant was and so they wanted to trace the assailant with the help of the foot-prints.
We, therefore, conclude that none of the eye-witnesses examined in this case knew for sure the identity of the culprit.
6. The police, however, managed to produce a knife in this case as the weapon of offence allegedly recovered at the instance of the appellant and found to be stained with human blood. The witnesses to the recovery are Abdul Karim and Rana Abdul Waheed P. Ws. 5 and 6 besides Manzur A.I, the Sub-Inspector. But Abdul Karim P. W. Has denied that the knife was stained with blood.
However, the learned counsel appearing for the State has asserted that the testimony of Abdul Waheed (P. W. 6) who is an independent witness is by itself sufficient to prove the recovery. But even this witness has clearly stated that he and the Sub-Inspector waited outside the field while the appellant was taken into the field by a constable who then brought out a knife from there and showed it to them. It was a sugarcane field. This witness has further stated that before the constable went into the sugarcane field, he had not been searched. Therefore, the possibility of the constable producing the knife from his own possession cannot be ruled out. At any rate, such recoveries have seldom inspired confidence and rarely carried conviction, of ever.
Thus we are left with no reliable piece of direct or indirect evidence to maintain the conviction.
7. We accordingly refuse to confirm the sentence of death, accept the appeal, set aside the conviction and sentence and acquit the appellant.