ATAULLAH SAJJAD, J.-The appellants, who are four in number, were convicted under sections 302, 307 land 436 read with section 149, P. P. C. By Mr. Bashir Ahmad, Additional Sessions Judge, Lahore, by order dated 26th of January 1971. Their fifth co-accused Rashid alias Shani escaped from the District Courts during the inquiry and was shot dead by the police in an encounter. Abdul Latif was sentenced to death under sec--petition 302/ 149, P. P. C. And a fine of Rs.
100. In default of payment of fine he was directed to undergo one month's R. I. He was sentenced to transporta--petition for life under section 307, P. P. C. The three other appellants, namely, Munir, Inayat and Alif Din were sentenced to transportation for life under section 302/149, P. P. C. And to ten years' R. I. Each under section 307/149, P: P. C. They were also directed to pay a fine of Rs. 100 each. In default of payment of fine they were to undergo one month's R. I. Each. The appellants were further sentenced to ten years' R. I. And a fine of Ifs. 100 each under section 436/149, P. P. C. In default of payment of fine they were directed to serve one month's R. I. Each.
2. This judgment shall dispose of the appeal as well as the murder reference which is before us for confirmation of the sentence of death passed on Abdul Latif appellant.
3. It appears from the judgment of the learned Additional Sessions Judge that Nur Muhammad, the father of Munir, Latif and Inayat appellants had married three wives. Latif appellant is a full brother of Rashid alias Shani, the deceased accused, while Munir and Inayat appellants are his consanguine brothers, having been born from two different wives of Nur Muhammad. Alif Din appellant is the maternal uncle of Munir appellant.
4. The occurrence which took place on 18th of January, 1968, at about 8 a.m. Resulted in the death of Abdul Rashid. The prosecution story is that Abdul Rashid deceased, his brother Nazir Ahmad (P.
W. 15) who is the first informant in this case, and his uncle Abdul Hamid (P. W. 17) were going from their village Keet to Kot Mela Ram for milking the cattle. Barkat A.I son of Hakim A.I (P. W. 16) who actually belongs to village Ucha Ladheke and had paid a visit to his relative Abdul Hamid P. W. Was also accompanying them. When they reached near the culvert which is in bet--ween the villages Keet and Kot Mela Ram, the four appellants along with their deceased co-accused, Rashid alias Shani, emerged from the Kacha Kotha of Sudhan Khan Meo. Shani and Alif Din were armed with rifles while Muhammad Munir and Inayat had pistols. Abdul Latif appellant had a single barrel '12 bore gun. They attacked the members of the party of the deceased who retreated towards village Keet. Abdul Rashid turned to one side and was pursued by the appellants. Munir, Abdul Latif and Inayat fired at him as a result of which he fell in the field of Sube Khan. After that Rashid alias Shani and Alif Din fired at him with their rifles and he breathed his last there and then. The companions of the deceased ran to the latter's haveli but were constantly looking back and they saw the occurrence. Apart from the witnesses named above, the incident of firing was also seen by Lai (P.
W. 18) and Mst. Saidan (P. W. 19) the widow of the deceased. After hearing the gun-fire, Lai who lives in a kotha in the haveli of the deceased went on his roof and saw the accused firing at the deceased. Mst. Saidan came out of her house after hearing the gun-fire and also witnessed the attack on her husband.
5. The accused after finishing Abdur Rashid came towards the haveli where he and his other relatives resided in different kothas. They went on the roofs of the deceased, Hameed P. W. And his brother Sharif. They dug out a part of these roofs and after throwing kerosene oil put fire to thom.
This incident of arson was witnessed, apart from the witnesses named above, by Faqir Hussain (P.
W. 11) and Amanat A.I (P. W. 12).
6. After the accused had departed, Nazir and Faqir Hussain, P. Ws. Proceeded to the place where the deceased had been done to death. Barkat son of Nawab (P. W. 10) who resides at a distance of three killas from the village towards east also came to the spot. Meanwhile Hamid P. W. And Sharif had also reached the spot. The dead body was taken out of the field and placed on a cot on the boundary of the field.
7. The F. I. R. Exh. P. E. Was lodged by Nazir Ahmad (P. W. 15) in Police Station Kahna Kachha at 9 p.m.
1 he distance between the place of occurrence and the police station is seven miles. It was recorded by A. S. I. Sabir Husain Shah (P. W. 20). He came to the spot and recovered blood--stained earth from underneath the cot on which the dead body was lying. He then sent the dead body for post-mortem -examination after drawing up the necessary documents. During the inspection of the spot, he took hold of a '12 bore crime empty Exh. P. 4 from near the cot on which the dead body of Rashid was lying. He also recovered an empty cartridge of '303 rifle Exh. P. 15 which was lying on the pagdandi and below the western bannah of the field of Suba. Two more empty cartridges of -303 rifle were found in the middle of the path referred to above. The '12 bore empty was sealed into a parcel and another parcel was prepared for the '303 empties. These recoveries have been witnessed by Barkat A.I son of Hakim (P. W. 16) and Abdul Hamid (P. W. 17). The Investigating Officer also observed during the inspection of the spot that the roofs of the houses of Abdul Rashid deceased, Muhammad Sharif and Abdul Hamid had been dug out and set on fire. He took into possession a kassi and an empty tin of kerosene oil from the roof of the house of Abdul Hamid and Muhammad Sharif P. Ws. But no burnt material was collected.
8. The deceased accused Shani was arrested on 22nd of January 1915'8. Munir and Alif Din appellants were arrested on 23rd of January 1968. Latif and Inayat appellants were arrested on 1st and 5th of February 1968, respectively. On interrogation, Latif and Munir led to the recovery of a gun and a pistol vide memos. Exh. P. C. And P. D., respectively. The gun had been taken out by Latif from a heap of rubbish from near a pond. A. S. I. Muhammad Masud (P. W. 21) admitted that the heap of rubbish was outside the haveli of Latif appellant. Faqir Hussain (P. W. 11) maintained that the heap of rubbish was inside the haveli. This assertion is against the contents of memo. Exh. P. C. And the statement of the S. I. Referred to above. It may also be pointed out that Faqir Hussain had not deposed to this recovery before the committing Magistrate.
Munir led to the recovery of a '12 bore pistol from the palls of chaff in his field. Both the weapons were sealed into separate parcels. These recoveries were witnessed by Faqir Hussain (P. W. 11) and Amanat A.I (P. W. 12) besides S. I. Muhammad Masud (P. W. 21).
9. The complainant and the accused party are related to each other but it appears from the record that there was acute enmity between them. On 4th of May 1967; Shani (the dead accused). Alif Din and Latif appellants and Said, their relative, set fire to the barley crop of Rashid deceased. A case under section 435/440, P. P. C. Was registered against them at the in--stance-of the deceased. The copy of the F. I. R. In that case is Exh. P. S. On this record. On 11 of December 1967, while the above case was pend--ing, Mst. Pahna, the father's sister of Abdul Rashid deceased was allegedly done death by hour persons, namely, Shani, Nur Ahmad, Bashir and Said. Said was sentenced to death and his case has recently been disposed of by a Bench of this Court. Shani, as mentioned above, had escaped even during the Pahna's case and it is said that in order to eliminate the evidence against him in that case, he alongwith his co-accused committed the murder of Abdul Rashid.
There were also security proceedings between the deceased and Alif Din appellant before the present occurrence.
10. The empty recovered from the spot reached the Forensic Laboratory on 3rd of February 1968.
Again, on 13th of February 1968, three parcels were delivered in the Forensic Laboratory. The first parcel delivered on 3rd of February 1968, contained a '12 bore crime empty which was marked by Muhammad Sarwar (P. W. 22), Firearms Expert, as `C-1'. One of the three parcels received on 13th of February 1968, contained three crime empties of 303 bore and were marked as `C-2' to `C-4'. The second parcel contained the '12 bore single barrel shot-gun and the fourth parcel con--tained a '12 bore pistol. Another parcel contained one `303 rifle. The comparison made by the Firearms Expert shows that the 12 bore crime empty marked 'C-1' received on 3rd of February 1968, in the Laboratory was wedded to the '12 bare SBBL shot-gun.
11. The learned trial Judge who convicted the appellants observed that there was no contradiction in the narrantion given by the eye-witnesses and that all the appellants bad taken part in attacking the deceased. He further observed that Abdul Hamid and Barkat A.I son of Hakim P. Ws., in any case, were not inimical witnesses and their testimony being in line with the statements of other witnesses was worthy of reliance. He also relied upon the recoveries of firearms from Latif and Munir.
12. The defence version in this case was that Shani, the deceased accused, along with some other companions (not the appellants) had attacked Abdul Rashid during the night while he was watering this fields. The learned counsel in this connection invited our attention to the post- mortem report, according; to which the stomach of the deceased was found empty. It was his contention that if the store of the prosecution that the deceased left his house along with his companions at about 8 a.m. Is correct, then he could not have gone for work on an empty stomach, Mst. Saidan, the widow of the deceased, when questioned as to whether her husband had eaten something that morning or not, said that she could not say anything positively.
We find from the statement of Nazir Ahmad (P. W. 15) that the turn of water of the deceased started on Wednesday night and finished on Thursday at 11-45 a.m. Eighteenth of January 1968, happens to be Thursday. In the circumstances of tile case it cannot be said that the defence theory that the deceased had been done to death while irrigating his own land is without substance.
13. In respect of the contention that the deceased had been attacked lay Shani and his companions other than the appellants, the learned counsel invited our attention to the statement of Abdul Hamid P. W. Wherein he admitted that Nur Muhammad had turned out his son Shani fromth his house for his bad deeds and that lie was absconding in connection with the murder case of Mst. Pahna. He argued that it could not be said that the three brothers of Shani and Atif Din would join hands with an outcaste and commit a murder. It was also the alternative case of the defence that the deceased might have been done to death by the Meos, because Nur Muhammad Meo had been murdered by Rashid deceased and Abdul Hamid
14. We are not quite sure whether the first information report in this case was lodged in the police station as is claimed by the prosecution. Abdul Hamid (P. W. 17) made a significant admission that the police had recorded the statements of Nazir and other P. Ws., including himself, at the spot and that Nazir had signed his statement. The learned trial Judge repelled the contention of the defence in this respect mainly on the ground that the witness had not positively said that the F. I. R. Had been recorded at the spot. We have looked up the record and we do not find that there is and other statement recorded by the police which bears his signa--tures, except the F. I. R. This admission by a prosecution witness was, therefore, rightly pressed into service by the learned counsel for the defence. There are also clear indicators on the record that the P. Ws. Did not know the names of the perpetrators of the crime soon after it was discovered. Barkat son of Nawab (P. W. 10) said that when he reached the place where dead body was lying, he found Faqir Hussain and Nazir present there. They did not tell Lim as to who had killed the deceased and it was only after the arrival of the police that he knew that Shani had done the deceased to death.
Faqir Hussain (P. W. 11) the son of Mst. Pahna, who was allegedly done to death by Shani and other members of his family, had stated before the committing Magistrate that he was told that the deceased had been done to death by Shani and his companions. He left the companions of Shani unnamed before the committing Magistrate. He had also not stated before the committing Magistrate that when he went to the spot lie found Nazir present there. On the other hand, he told the committing Court that he along with Barkat and some women were present at tile spot. The story told at the trial that Nazir and Hamid were also present at the spot is not supported by the earlier statement of this witness. If Hamid and Nazir were present in the haveli as they claim to be, there is no reason why they should not have reached the spot with Faqir Hussain. The occurrence is said to have taken place at 8 a.m. And the police arrived at 10 a. m. It is, therefore, permissible to conclude that Nazir and Hamid were not present b at the time of occurrence and were introduced as eye-witnesses after deliberation.
15. The story that the deceased was proceeding to Kot Mela Ram along with Nazir his brother and Abdul Hamid (P. W. 17) to much cattle, does not get corroboration from any circumstance in this case. Faqir Hussain P. W., a cousin of the deceased, stated at the trial that he did not know the errand which took Rashid out of his house. Both Abdul Hamid and Nazir said that they were carrying utensils while the deceased was carrying a garvi and a basket. They said that they threw away their utensils while they were being pursued, but found that those utensils had disappeared after the arrival of the police. They have not said anything as to what happened to the garvi and the basket that the deceased was carrying. It is not the case of the prosecution that these utensils were carried away by some people in their absence. The witnesses claimed to have arrived at the spot immediately after the incident. The garvi and the basket which were allegedly in the band of the deceased must have fallen near the place where he fell dead.
16. It is also the case of the prosecution that when the deceased had fallen, all the assailants went near him and fired. The deceased had only gun shot injuries and the statements of the eye- witnesses who said that ail'' the assailants I ad fired from their weapons is belied by the medical evidence. This clearly shows false involvement.
17. It has not been proved with certainty that the deceased was shot dead in the field of Suba as alleged by the prosecution witnesses. The In--vestigating Officer took possession of the blood from underneath the cot on which the dead body was lying, but he did not take any blood from the spot where the deceased was attacked and done to death. Khushi Muhammad Patwari (P. W. 2) who prepared the plan did not see any blood at the alleged place of occurrence. The collection of blood-stained earth from the spot is a very material evidence to locate the actual venue of the incident. In this case it has not been done.
18. We have said that parties are related. The phuphi of the deceased was married to Meraj, the brother of Nur Muhammad father of Latif, Munir and Inayat appellants. Mst. Saidan the widow of the deceased is the daughter of aforesaid Meraj and is thus a first cousin of the aforesaid appellants.
Amanat A.I (P. W. 12) the witness of recovery of the gun and pistol is a brother of Mst. Saidan. Both Saidan and Amanat were the witnesses for prosecution in the murder ease of Mst. Patina. It was also admitted by Nazir Ahmad P. W. That there was enmity existing between them and the accused and that there had been security proceedings between his deceased brother and Alif Din appellant. Abdul Hamid P. W. Further bore testimony to this enmity when he said that even before, the javi crop of the deceased was set at fire, there was enmity between Shani accused and Rashid deceased.
19. Reference has been made above to the observation of the learned trial Court that Barkat A.I son of Hakim (P. W. 16) and Abdul Hamid (P. W. 17) were not inimical witnesses. We do not think that this observa--petition of the learned trial Court is factually correct. Abdul Hamid is a first cousin of Abdul Wahab a maternal uncle of the deceased. The wife of Lal P. W. Is the niece of this Wahab while Saidan the widow of Abdul Rashid is the sister's daughter of Abdul Wahab. It is, therefore, clear that Abdul Hamid is closely related to the deceased. Barkat son of Hakim is a Wajtakkar witness. He comes from village Uche Ladheke. He stated at the trial that he had come to ask after the health of the mother of Abdul Hamid P. W. But he had not mentioned this fact before the committing Magistrate. He is also related to the complainant as his brother is married to the sister of Abdul Hamid (P. W. 17). It, therefore, cannot be said that Hamid and Barkat A.I son of Hakim were unattached witnesses and could not have been influenced by the enmity that existed between the parties. The scrutiny of their evidence is to be made subject to the same conditions which apply to the testimony of inimical witnesses. We have found above that the F. I. R. Was drawn up at the spot after deliberation and the story of these two witnesses that they accompanied the deceased along with Nazir is doubtful. Their word can be made the basis of capital punishment only when very strong corroborative evidence is available.
20. The learned Additional Sessions Judge found corroboration as against Latif and Munir because a gun and a pistol had been recovered from them and that the 12 bore empty found at the spot had been wedded to the gun recovered from Latif. The witnesses of these recoveries are Amanat and Faqir Hussain who are admittedly inimical to the accused Faqir Hussain is the son of Mst.
Pahna for whose murder Shani and other 9 members of his family were prosecuted while Amanat A.I is the sister's son of Mst. Pahna and was a prosecution witness in the case relating to her murder. Amanat A.I had stated before the committing Magistrate that the gun was recovered from a kotha belonging to Said accused. According to the Investigating Officer the gun was recovered from a heap of rubbish outside the haveli of Latif. Imam Din (P. W. 7) who is the witness of the arrest of Shani deceased stated that a gun was recovered from Shani, although the case of the prosecution is that a rifle was recovered from him. The gun was recovered from a heap of rubbish near a pond outside the house of Latif. It, therefore, cannot be said that he had the exclusive knowledge of the presence of the gun there. The Investi--gating Officer said that he could not get better evidence and, therefore, he joined these two hostile witnesses in the investigation at the time of the recoveries. The recovery of pistol from Munir is inconsequential because no empty was found wedded to it.
21. The prosecution evidence is also not uniform as to the date on which the gun recovered from Latif appellant was delivered in the Forensic Laboratory. The recoveries according to the memo.
Exh. P. C. And P. D. Were effected on 5th of February 1968. Sabir Hussain Shah (P. W. 20), however, stated that Malik Muhammad Masud had delivered to him on 3rd of February 1968, two sealed parcels containing a gun and a pistol separately in two parcels. He said that he gave the parcels containing the blood-stained earth and the empties recovered from the spot to Shah Muhammad Constable on 3 of February 1968. Shah Muhammad Con--stable (P. W. 3), however, stated that he received three parcels on 3rd of February 1968, from Moharrir A. S. I. Sabir Hussain and delivered two of them in the office of .The Forensic Laboratory while one was delivered in the office of the Chemical Examiner. If what Sabir Hussain has stated is correct, then the whole story of recovery of the gun and pistol on 5th of February, 1968, falls down. The gun and the empty were delivered to Sabir. Hussain for safe custody on 3rd of February, 1968. The argument of the learned counsel that there was a possibility that the empty was fired from the gun before the gun and the empty were consigned in the Malkhana on 3rd of February 1968, does not appear to be without substance. The evidence of recovery according to us, therefore, does not-corroborate the eye-witness account.
22. As to the incident of arson, it is not known as to how the kerosene oil and the kassi were taken to the roofs of the witnesses. There is no evidence whatsoever to indicate as to which of the accused was carrying it. Lal (P. W. 18) stated that he did not know as to which of the accused was holding the kerosene oil and who had the kassi. Mst. Saidan stated that her roof had been dug out to the size of a cot whereas A. S. I. Sabir Hussain states that the place covered by two or three rafters had been dug out and the rafters had also got fire to some extent. Nazir P. W. Was not able to say whose roof was set on fire first and by which of the accused. He said that the accused had climbed the roof through his stairs but Nawab son of Hakim was not able to say through which stairs the accused climbed the roof. Nazir was not able to say on which roof the tin containing kerosene oil was left and whether it contained any oil or not. In our view, the story of burning of the roofs was introduced to show that the witnesses had a full view of the criminals. It is to be pointed out that no burnt rafters were taken into possession by the police. The charge of arson against the " appellants, therefore, also stands unproved.
23. The result is that we, allow this appeal and set aside the conviction of the appellants on all the counts as well as sentences passed upon them. They shall be set at liberty, forthwith unless they are lawfully required to be detained In connection with some other case. The sentence of death passed on Latif appellant is not confirmed. The murder reference is also answered accordingly.