1. MUSHTAQ HUSSAIN, J.-----(1) Mukhtar Ahmad, aged 51, (2) Rashid Ahmad, aged 29, (3) Javid, aged 23 and son of appellant No. 1, (4) Muhammad Sarwar, aged 30, and (5) his brother Maqbool, aged 46, have been convicted under section 302/149 and section 1L8 of the Pakistan Penal Code.
2. Under section 302/149, Mukhtar Ahmad has been sentenced to death while the others to transportation for life; while under section 148 all of them have been sentenced to one year's rigorous imprisonment by order dated 26-6-1971 passed by the Sessions Judge, Sheikhupura, for having committed the murder of Sanaullah on 4-9-1969 in the area of village Jewan Gorraya at 4- 15 a.m. At a distance of 9 miles from Police Station, Narang in the District of Sheikhupura where F.I.R.
3. Exh. P. B. Was lodged on the same day by Muhammad Akhtar (P. W. 11) at 10-15 a.m. And was recorded by Muhammad Sharif (P. W. 14) initially under section 307, P. P. C. It was converted to section 302 when the news of the death of Sanaullah reached the Sub-Inspector.
4. The prosecution story is that the deceased Sanaullah and his son Muhammad Akhtar (P. W. 11) lived in village Jewan Gorraya. They left their house at about 3-45 a.m. On two horses towards the Railway Station, Mehta Suja. The deceased was involved in a smuggling case which was fixed for hearing on that day at Sheikhupura. They were being followed by Muhammad Ashraf (P. W. 13) at some distance. When they reached at a place on the western bank of the B. R. B. Siphon at a distance of about 3/4 killas at 4-15 a.m., they saw the appellants emerge from the trees oppo--site where they had been lying in ambush. Mukhtar Ahmad was armed with a hatchet, Javid with a dang, Maqbool with a dang, Sarwar also with a hatchet, and Arshad with a hatchet. Mukhtar appellant shouted a lalkara and exhorted his companions to ensure that Sanaullah did not go alive. In a moment, Mukhtar Ahmad hit the head of Sanaullah with his hatchet inflicted a serious blow on it causing blood to flow out. Sanaullah fell down from the horse and while he was so falling down Sarwar bit him on his head with his hatchet while Javaid and Maqbool started belabouring him with dangs. Rashid did not lag behind and inflicted kulhari blows on his left arm, both legs and the rest of his body.
5. The outcries of P. W. 11 attracted Faujdar (P. W. 12) and Muhammad Ashraf (P. W. 13). The assailants thereupon made good their escape. Ashraf and Faujdar witnessed the occurrence. Sometime later, Nazar also arrived who was then sent by P. W. 11 to the village to inform the latter's brother Anwar of the occurrence. P. W. I 1 and his brother Anwar and Inayat A.I took their father on a charpoy to Railway Station Mehta Suja wherefrom Anwar and Muhammad Ashraf proceeded to the Mayo Hospital, Lahore, with the injured.
6. The motive is stated in the F. I. R. As enmity arising out of the theft of the complainant's mare a year before the occurrence and the suspicion expressed by the complainant party against Mukhtar Ahmad, Maqbool, Sarwar and Rashid.
7. The complainant proceeded to Police Station, Narang where he found that the A. S. 1. Muhammad Sharif was absent. The Head Constable on duty sent for him and when he returned two hours later, Muhammad Sharif A. S, I. (P. W, 14) recorded F.I.R. Exh. P. B.
8. Muhammad Akhtar (P. W. 11) detrained at Narang Railway Station at 8-30 a.m. And must have traversed 1-- furlongs from the Railway Station to the Police Station in about 10 minutes. The report was, however, not taken down till 10-15 a.m. And we are asked to swallow the illusory expla--nation that the Constable took about two hours in calling the A. S. I. Even if it could be believed that the A.
9. S. I. Was away from the Police Station, there is always a Muharrir to take down any F. I. Rs. That are sought to be lodged. When confronted with this situation, Muhammad Sharif (P. W. 14) the A. S. I. Did not say that the Muharrir was absent from the police station. He only stated that he did not remember whether he was there or not. In the normal course in such a situation, that in the absence of the A. S. I. The Muharrir would have been there and should have taken down the F. I. R.
10. Without any delay. It would, therefore, be correct to assume that the F. I. R. Was recorded at the spot after deliberation and investi--gation.
11. Having recorded the F.I.R. And obtained the signatures of Muhammad Akhtar (P. W. 11) the Sub- Inspector immediately proceeded towards the spot reaching there at 11-30 a.m. On the same day.
12. He collected blood-stained earth and made it into a staled parcel. Hs then went to the Mayo Hospital, Lahore, where he arrived at 5-30 p.m. And was informed that the deceased had expired before his arrival. He prepared the injury statement Exh. P G and forwarded the dead body for autopsy. He went through the formalities of investigation and converted the case to one under section 302, P. P. C. Because of the demise of the injured. He challaned the case.
13. At the trial, all the appellants professed complete innocence and claimed to be tried. The prosecution produced 14 witnesses in all in support of its case while the defence produced none.
14. The result has already been indicated above.
15. The prosecution case is based upon the medical evidence and the ocular testimony. Before we begin an analysis of the evidence before us, we would like to point out that the ocular testimony in this is fur--nished by Muhammad Akhtar (P. W. 11) son of the deceased, Faujdar (P. W. 12) a partisan of the complainant party and an enemy of the appel--lants and Ashraf (P. W. 13) again a close relation of the complainant. It has also to be born in mind that longstanding enmity existed between Sanaullah, Muhammad Akhtar, Ashraf and Faujdar on the one hand and the appellants on the other, as would be pointed out from the testi--mony of the witnesses when the same is under scrutiny. No recoveries had been made in this case, there is no extra-judicial confession, there is no dying declaration, there is no circumstantial evidence either do not mean to say that any one of these pieces of evidence is necessary or a pre-condition for conviction of an accused in a murder case, but as has been very lately observed in Bagh A.I v. State (PLD1973 SC 321)
16. "As has been pointed out by this Court in the case of Thoba v. The State PLD 1963 SC 40, the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeacable source. If such source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
17. Dr. Nusratullah (P.W. 2) testified that on 5-9-1969 at 4-00 p.m. He con--ducted the post-mortem examination on the dead body of Sanaullah. He found the following injuries on his person:---
(1) A contused wound 2' long bearing six stitches in the middle of parital region, situated obliquely.
18. Haematoma was present under the scalp. There was depressed and communicated fracture of both parital, both frontal and right temporal bones, left black eye was the result of this fracture.
19. Extensive extra-durable and sub-dural haemorrhage was present on both the sides of the brain.
20. Brain was compressed at the fracture site.
(2) A contused wound --' x 1/8" x scalp deep --' in front of injury No. 1.
(3) A contused wound --' long bearing three stitches left forearm medial aspect in middle 1/3 muscles were bruised and bones were intact.
(4) A stitched wound 1/3' long bearing one stitch, left thigh anterior aspect lower part. Surrounding area of the wound was bruised. Muscles were bruised.
(5) A bruised swelling left knee. Bones were intact ligaments were lacerated and blood was present in the join cavity.
(6) A compound fracture both bones were left leg in the middle 1 /3rd there was contused wound 1' long at the anterior aspect. Muscles were bruised lacerated and infiltrated with clotted blood.
(7) A contused wound --' x 1/8' x bone deep right leg anterior aspect lower 1/3rd bones underneath were healthy.
(8) A bruise 2--' x 2' medial aspect of right knee.
21. The cause of death in his opinion was compression of brain due to intra carnial haemorrhage and depressed fracture of vault caused by injury No. 1 which was sufficient in ordinary course of nature to cause death, Injuries Nos. 5 and 6 were found to be grievous and remaining were simple. The testimony of this doctor proves that Sanaullah died a violent death on account of injuries received by him, and none of which was caused by a sharp-edged weapon. In other words, if hatchets were used only the blunt sides thereof seem to have been utilised.
22. Muhammad Tufail (P. W. 7), a resident of Jewan Goraya, testified that he joined police investigation in this case and that the police took into his possession blood-stained earth from the spot vide memo. Exh. P. C. His testimony proves that the occurrence took place at the spot indicated in the plan.
23. Allah Bakhsh appeared as P. W. 8 and stated that he is employed in Veternary Hospital in village Jewan Goraya. He admitted that he resided in village Bhagian which is three miles away from the hospital. He normally goes back to his village in the evening. On the evening pre--ceding the occurrence, however, he did not go to his village Bhagian and was instead passing by the house of the deceased when he asked him to bring a saddle for him from one Muhammad A.I. The deceased informed him that he was going to catch the first morning train on the morrow. While this witness was bringing the saddle from Muhammad A.I, Mukhtar and Sarwar appellants happened to meet him and enquired from him about the place where he was taking it. The witness told them that he was taking the saddle for Sanaullah as he was catching the train on the next morning. When cross-examined the witnesses failed to give any reason for having stayed back in village Jewan Goraya instead of having gone to his house in village Bhagian on that very particular day. He also admitted that the deceased had young sons and had many servants. He also admitted that he saw two mares in the house of the deceased and that he had two saddles also.
24. No reason whatsoever having been given by the witness about his choosing that particular evening for staying on in village Jewan Goraya it is difficult for us to believe that he was, in fact, present in that village. Even otherwise, his position would not be better than that of a chance witness because, at the best, it could be said that he has stayed back in village Jewan Goraya by chance. The testimony of chance witnesses have not been looked upon with favour by Courts or men of prudence. Even if it were to be believed that he was present there and even if his statement was not discredited on account of his being a chance witness, the fact still remains that there is no explanation whatsoever for Allah Bakhsh having particularly chosen to go and fetch a saddle when the deceased admittedly had young sons and many servants. There is no reason why, he would not have utilised the services of any one of these persons. In any case, Allah Rakha admits that the deceased had two mares and two sad--dles, the reason for sending for a third one is again not available and to that maybe added the fact that Muhammad Akhtar (P. W. 11) has admitted in his statement that on the day of occurrence they had only one saddle which means that one of the two went on the bare back of a mare. What happened to the saddle which had been borrowed from Muhammad A.I and what happened to the other saddle in the house is not known.
25. The testimony of Allah Rakha becomes all the more unworthy of credit because he admits that he did not talk about the saddle to anybody except the deceased, Mukhtar and Sarwar appellants, Riaz son of Nasrullah and Muhammad A.I from whom it was borrowed. All the same he ap--peared before the police on the day of occurrence at about 10 a.m. And the Thanedar at that moment enquired about him and when he came for--ward and said that he was Allah Rakha, he told the police about the borrowing of the saddle. How the police came to know about it is a mystery because the appellants did not go to tell this and Sanaullah has in any case to be excluded because dead man tell no tales. So far as Muhammad A.I is concerned, he has neither been produced nor is there anything on the record to show that be had gone and informed the police about it.
26. We are, therefore, constrained to hold, but we are not doing so casually, that Allah Rakha was not present in the village and in any case the story of the borrowing of the saddle and his talking about it to Mukhtar and Sarwar accused is a figment of the investigator's imagination. We may, before parting with the testimony of this witness, also take note of the fact that though he admits to having told Muhammad A.I that the deceased was to catch the next morning's train for Sheikhupura he does not make any mention whatsoever of having told Mukhtar and Sarwar about the direction of the train which the deceased was supposed to take. Mukhtar and Sarwar, therefore, did not come to know about the intention of the deceased to go to Sheikhupura on the following morning. All that they could have known, even if the story of Allah Rakha was to be believed, would be that the deceased was going to catch the morning train and whether there were or were not one morning train in either direction and the time at which each one of them passed through Mehta Suja is not known.
27. S. I. Riaz Ahmad (P. W. 10) informed the Court that he arrested Mukhtar and Sarwar on 7-10-1969 and the other appellants on other days, but he was not definite as to the dates on which the other persons were arrested.
28. Muhammad Akhtar (P. W. 11) is the son of the deceased. He admits that his father Sanaullah was a smuggler. He also admits that they were on inimical terms with the family of Fateh Muhammad and that there had been murder cases in which these two families had been involved. Though he suggested there was a compromise between them about 10 years ago, he could not deny that the grand-son of Fateh Muhammad was challaned only 5 years ago for assaulting Akhtar's brother. He also had to adroit that there were some Kammies who were against his father. The deceased, therefore, had a number of other enemies who could have as well wreaked vengeance upon him.
29. Muhammad Akhtar admitted that Rashid accused had lodged a false report against the witness's brother. He also admitted that Mukhtar, Javaid, Maqbool and Sarwar did not appear as witnesses for Rashid against his brother. He also admitted that Faujdar P.W. Had appeared as an eye-witness for the prosecution in the case against Rashid and some others in that case. He recollected that Mukhtar, Sarwar and Maqbool were challaned for smuggling of cloves. He also admitted that it was he and his father who supplied information to the police about it whereupon Mirza Izzat Beg, Sub- Inspector, raided their place and registered a case against them. He also admitted that sometime ago their mare was stolen and that they lodged a report expressing their suspicion against all the five appellants. He further stated that all the appellants belong to one party. He topped it all by admitting that it was correct that there is enmity between the complainants on the one side and all the accused for the last 10/11 years and they were not on speaking terms. Faujdar (P. W. 12) himself admitted that he was a witness against the son of Maqbool appellant in a pending case. The sister of Ashraf is married to Sarwar son of the deceased.
30. According to Muhammad Akhtar (P. W. 11) the train which the father was to catch used to leave the railway station Mehta Suja at 5 in the morning. According to the calendar the sun was to rise on that morning at 5-38. To catch the 5 o'clock train they must have left early enough because they have to traverse a distance of six miles during the rainy season when according to P. W. 11 detours had to be made en-route and the track could not be good, of course, there was no road. The deceased and P. W. 11 would, therefore, be at the spot when the occurrence took place at about 4 and to say that there would be light at all or in any case enough for the purpose of identification at about 4 o'clock more than an hour and a half before sunrise is too credulous to be countenanced.
31. We have, therefore, no option but to hold that it was dark when the occurrence took place. P. W. 11 would, how ever, have us believe that the day was dawning when they started from his house for the railway station. Faujdar (P. W. 12) would even go a step further and state that it was day time.
32. On the other hand, Ashraf (P. W. 13) is positive that it was about 3-45 a.m. When he heard an alarm on reaching near the siphon. Could anybody believe that at that time it will be possible for the two witnesses, Faujdar and Ashraf, to identify the assailants particularly when they were about two killas away when they heard an alarm. We have already noted the injuries and if the statements of the witnesses were to be accepted five persons were responsible for causing these injuries, the whole incident could not have taken even a minute. We dare say that it must have taken much longer than one minute for Faujdar and Ashraf to run the distance of two killas and reach the spot and see the assailants un--less, of course, they claimed to be Olympic runners which, of course, they are not.
33. A smuggler and his son who have many enemies are traversing a lonely road on a night on horse back and it is only natural to presume that they must have been sufficiently armed against surprise attacks. Despite that, Muhammad Akhtar (P. W. 11) saw his father being hacked to death without even taking the trouble of alighting from his mare and rescuing him from the hands of his would-be assassins. It was only when they made good their escape that Muhammad Akhtar went near his father and found him unconscious. It is also strange that although admittedly the appellants were inimical towards P. W. 11 also he remained sitting on his mare without the assailants taking any notice of him or making short shrift of him also instead of leaving a potential eye-witness of their alleged misdeeds alive to tell the tale before a court of law.
34. The deceased could not be expected to go bare-headed to appear before a Magistrate. At least that is not how villagers behave. No turban or head-wear had been recovered by the police and it would be difficult to explain why it was not recovered because the injuries had been sustained on the head and there must have been a blood-stained head-wear if the story that he was going to attend Court was correct. Akhtar (P. W. 11), therefore, took it upon himself to narrate an incredible explanation by saying that the kulla and turban of his father was being carried by his son in a bag and that he gave the bag to Nazar when he sent him to his brother. The evidence about the head- wear in this case is not just incidental. It is an integral part of the prosecution story. We are afraid we are not prepared to accept this totally baseless explanation given by Muhammad Akhtar (P. W.
35. 11).
36. We have already held that Faujdar and Ashraf could not have possibly seen the occurrence.
37. We consequently accept the appeal, set aside the order of the learned lower Court, quash the conviction, refuse to confirm the sentence of death and acquit all the appellants of the charges under sections 302/149 and 148, P. P. C.
38. We have already by a short order directed that they shall be released if they are not required in any other case.