' JAVID IQBAL, J.-Nine persons, namely, Naseer Din alias Naseera, aged 30 years, Ghulam Muhammad, aged 46 years, Muhammad Sharif, aged 45 years, Ghulam Nabi, aged 36 years, Muhammad Akram alias Gung, aged 25 years, all residents of Badhoke Gosayan, Allah Ditta, aged 35 years, resident of Kotli Sabu, Muhammad Nasar, aged 20 years, resident of Rahwali, Muhammad Akbar, aged 35 years, and Muhammad Ali, aged 33 years, both residents of Gulab Pura, have been convicted under sections 148, 302/149, P. P. C. On two counts for the murders of Faiz Ahmad and Hassan Din vide judgment dated the 7th of March 1972, of the Additional Sessions Judge, Gujranwala, and were sentenced as follows: Naseer Din was sentenced to death as well as fine amounting to Rs, 1,000 or in default to undergo one year's R. I. Under section 302, P. P. C. On each count. He was also sentenced to three years' R. I. Under section 148/149, P. P. C. The sentence of imprisonment was to become operative if death sentence was commuted and it was ordered to run concurrently with any other sentence. Each of the other eight was sentenced on each count to transportation for life as well as each of them was fined Rs, 1,000 in default of which each was to undergo one year's R. I. Under section 302, P. P. C. Each of these eight was also sentenced to three years' R.I. Under section 148/ 149, P. P. C. All the sentences were ordered to run concurrently. It was further ordered that if the amounts of fine are realized from them, half of the same, would be paid to the legal heirs of both the deceased in this case in equal shares. Their appeal as well as reference for the confirmation of death sentence awarded to Naseer Din are being taken up and disposed of together by this judgment in which Criminal Revision No, 516 of 1972, filed by Muhammad Azam, step-brother of Faiz Ahmad deceased, for the enhancement of sentence to death in the case of the appellants other than Naseer Din shall also be considered.
2. The occurrence is reported to have taken place at 6 a.m. On the 2nd of November 1969, at Chah Rohiwala, at a distance of ten miles in the direction of East from Police Station Ahmad Nagar, District Gujranwala. The F. I. R. (Exh. P. A.) was lodged by Muhammad Azam P. W. 8, stepbrother of Faiz Ahmad deceased on the same day at 8-30 a.m. And it was recorded by Qamar-ul-Zaman Khan S. I., P. W.
13.
3. The motive for offence as given in the F. I. R. Is that 14 years prior to the occurrence Naseer Din appellant had abused Mst. Nawaz Begum, wife of Faiz Ahmad deceased for keeping wet cow-dung cakes on the common wall of Naseer Din appellant and in retaliation Faiz Ahmad deceased and his servant Hassan Din deceased had slapped Mst. Sakina Bibi wife of Naseer Din appellant. The matter was reported to the police and both Naseer Din appellant and Muhammad Azam P. W. Were bound down to maintain peace for one year, Naseer Din appellant had a grudge that his wife had been maltreated by Faiz Ahmad and his servant Hassan Din and in order to take revenge he alongwith other appellants in furtherance of their common intention armed themselves and committed the murders of Faiz Ahmad and his servant Hassan Din. The record also indicates that the complainant and the accused parties were inimical to one another and criminal litigation was going on between the two parties initiated by one or the other as is clear from the statements of Muhammad Azam P. W., the first informant and Muhammad Mansha P. W. 9, son of Faiz Ahmad deceased.
4. In the F. I. R. Three persons were mentioned as eye-witnesses of the occurrence, namely, Muhammad Azam P. W., step-brother of Faiz Ahmad deceased and the first informant, Muhammad Mansha P. W., son of Faiz Ahmad deceased and Nasir Ahmad, also brother of Faiz Ahmad deceased (given up as unnecessary). Sardar Khan P. W. 10 was produced as a witness who saw Naseer Din appellant alongwith the other appellants carrying their respective arms shortly after the occurrence. It is stated by him that Naseer Din appellant made an extra-judicial confession before him to the effect that they had murdered Faiz Ahmad and Hassan Din and that he should convey this to the wife of Faiz Ahmad deceased. But learned Additional Sessions Judge did not advert to the testimony of this witness, firstly, because he was not produced before the committing Magistrate by the prosecution and secondly, because he too was related to Faiz Ahmad deceased.
Any way, there are only two eye-witnesses of the occurrence produced by the prosecution, namely, Muhammad Azam and Muhammad Mansha who are closely related to Faiz Ahmad deceased.
Since the enmity between the complainant and the accused parties is established, corroboration is necessary.
5. The occurrence as stated in the F. I. R. Took place in the following manner: On the fateful day Muhammad Azam P. W. Alongwith Nasir Ahmad and Muhammad Mansha P. W. 9 were cutting into pieces parali fodder with the toka machine while Faiz Ahmad and Hassan Din deceased were sitting nearby and smoking how. At about 6 a.m. Naseer Din appellant armed with a pistol and a dang, Ghulam Muhammad appellant armed with a dang, Muhammad Sharif appellant armed with a dang, Ghulam Nabi appellant armed with a dang, Muhammad Akram alias Gung appellant armed with a pistol and a dang, Allah Ditta appellant armed with a dang, Muhammad Nazar appellant armed with a dang, Muhammad Akbar appellants armed with a dang and Muhammad Din appellant armed with a hatchet came from the direction of East. Naseer Din appellant raised a lalkara and then he, Ghulam Muhammad, Muhammad Sharif, Ghulam Nabi and Muhammad Akram alias Gung appellants attacked Faiz Ahmad with their respective weapons whereas Allah Ditta, Muhammad Nazar, Muhammad Akbar and Muhammad Ali appellants attacked Hassan Din with their respective weapons. The first five gave blows with their respective dangs on the head, arms, belly, legs and back of Faiz Ahmad. Faiz Ahmad fell down. Thereupon Naseer Din and Muhammad Akram alias Gung appellants continued firing from their respective pistols at Faiz Ahmad and thus Faiz Ahmad was killed on the spot. The remaining four gave blows with their respective aangs and hatchet on the hands, arms, legs and back of Hassan Din until he was dead.
Thereafter, the appellants ran away alongwith their respective weapons towards the East. The occurrence was witnessed by Muhammad Azam P. Ws. Nasir Ahmad, also brother of Faiz Ahmad deceased (given up as unnecessary) and Muhammad Mansha P. W.
6. The appellants were arrested on different dates and recoveries were made from them after their arrest. Naseer Din appellant was arrested on the 7th of November 1969, by Qamar-uz-Zaman Khan S. I., P. W. From his possession revolver P. 14 was recovered alongwith live cartridges P. 15/1-5 which were taken into possession vide memo. Exh. P. S., dated the 7th of November 1969, the attesting witnesses besides the Investigating Officer being Nawab Khan P. W. 11 and Riasat Ali (given up as having been won over). From Naseer Din appellant was also recovered blood-stained dang fitted with a spike P. 5 two days later i,e, on the 9th of November 1969, and taken into possession vide memo. Exh. P. H./1, the recovery witnesses besides the Investigating Officer being Nawab Khan P. W.
And Ghulam Haider (given up as having been won over). According to the report of the Serologist since the blood stains on the scrapings from dang P. 5 had disintegrated their origin could not be determined-(Exh. P. EE).
' Muhammad Akram alias Gung appellant was arrested on the 8th of November 1969, by Qamar- uz-Zaman Khan S. I., P. W. From his possession was recovered revolver P. 16 and live cartridges P.
17/1-4 which were taken into possession vide memo Exh. P. T. Dated the 8th of November 1969, the recovery witnesses besides the Investigating Officer being Nawab Khan P. W. And Riasat Ali (given up as having been won over). From Muhammad Akram alias Gung appellant was also recovered blood-stained dang fitted with a spike P. 8, five days later i,e, on the 13th of November 1969, and taken into possession vide memo Exh. P. L., the recovery witnesses besides the Investigating Officer being Nawab Khan P. W. And Ghulam Haider (given up as having been won over). According to the report of the Serologist the scrapings from dang P. 8 were found to be stained with human blood- (Exh. P. EE.).
' Ghulam Muhammad appellant was arrested on the 8th of November 1969, by Qamar-uz-Zaman Khan S. I., P. W. And three days later i,e, on the 11th of November 1969, was recovered at his instance blood-stained dang P. 6 which was taken into possession vide memo Exh. P. J./1, dated the l Ith of November 1969, the recovery witnesses besides the Investigating Officer being Nawab Khan P. W.
And Ghulam Haider (given up as having been won over). According to the report of the Serologist the scrapings from dang P. 6 were found to be stained with human blood-(Exh. P. EE).
' Allah Ditta appellant was arrested on the 8th of November 1969, by Qamar-uz-Zaman Khan S. I., P.
W. And four days later i,e, on the 12th of November 1969, was recovered at his instance blood- stained dang P. 7 which was taken into possession vide memo Exh. P. K., dated the 12th of November 1969, the attesting witnesses besides the Investigating Officer being Nawab Khan P. W. And Ghulam Haider (given up as having been won over). According to the report of the Serologist the scrapings from dang P. 7 were found to he stained with human blood-(Exh. P. EE).
' Muhammad Sharif appellant was arrested on the 12th of November 1969, by Qamar-uz-Zaman Khan S. I., P. W. And two days later i,e, on the 14th of November 1969, was recovered at his instance blood-stained dang P. 9 which was taken into possession vide memo Exh. P. M., dated the 14th of November 1969, the attesting witnesses besides the Investigating Officer being Nawab Khan P. W.
And Ghulam Haider (given up as having been won over). According to the report of the Serologist scrapings from dang P. 9 were found to be stained with human blood.
' Ghulam Nabi appellant was arrested on the 8th of November 1969, by Qamar-uz-Zaman Khan S. I., P. W. And fifteen days later i,e,, on the 23rd of November 1969, was recovered at his instance blood- stained dang P. 10 which was taken into possession vide memo Exh. P. N., dated the 23rd of November 1969, the attesting witnesses besides the Investigating Officer being Nawab Khan P. W.
And Ghulam Haider (given up as having been won over). According to the report of the Serologist, the scrapings from dang P. 10 were found to be stained with human blood-(Exh. P. DM, Muhammad Akbar appellant was arrested on the 29th of November 1969 by Qamar-uz-Zaman Khan S. I., P. W.
And two days later i,e, on the Ist of December 1969, he led to the recovery of blood-stained dang P.
11 which was taken into possession vide memo Exh. P. W., dated the 1st of December 1969, the attesting witnesses besides the Investigating Officer being Nawab Khan P. W. And Ghulam Haider (given up as having been won over). According to the report of the Serologist the scrapings from dang P. 11 were found to be stained with human blood-(Exh. P. GG).
' Muhammad Nazar appellant was arrested on the 29th of November 1969 by Qamar-uz-Zaman Khan S. I., P. W. And three days later i,e, on the 2nd of December 1969, he led to the recovery of blood-stained dang P. 12 which was taken into possession vide memo P. Q., dated the 2nd of December 1969, the attesting witnesses being the same as stated above. According to the report of the Serologist the scrapings from dang P. 12 were found to be stained with human blood-(Exh. P.
GG).
' Muhammad Ali appellant was arrested on the 29th of November 1969, by Qamar-uz-Zaman Khan S. I., P. W. And four days later i,e, on the 3rd of December 1969, he led to the recovery of blood- stained hatchet P. 13 which was taken into possession vide memo Exh. P. R., dated the 3rd of December 1969, the attesting witnesses besides the Investigating Officer being the same as stated above. According to the report of the Serologist the scrapings from hatchet P. 13 were found to be stained with human blood(Exh. P. GG.).
7. Dr. Imtiaz All Cheema P. W. 1 conducted the post-mortem examination on the dead body of Faiz Ahmad at 11 a.m. On the 3rd of November 1969, and found 54 injuries in all on his person in the form of contused wounds, abrasions, punctured and incised wounds on the head, arms, legs, back and hands. The stomach contained semi-digested food. Large intestines contained faecal matter, bladder was full of urine. Four injuries on his person were grievous and were caused with blunt weapons. One injury was grievous and was caused with sharp-edged weapon. Seven injuries were caused with sharp pointed weapon and were simple. Other injuries which had been caused with blunt weapon were also simple. The cause of death in his opinion was due to shock and haemorrhage and as a result of grievous injuries which were sufficient to cause death in the ordinary course of nature.
' On the same day at 1-30 p.m. He conducted the post-mortem examination on the dead body of Hassan Din and found 14 injuries in all on his person in the form of incised wound, abrasions and contusions. The stomach contained semi- digested food. Large intestines contained faucal matter.
The bladder was 1/2 full of urine. One injury was caused with sharp-edged weapon and was grievous. Rest of the injuries were caused by blunt weapon. Death in his opinion was due to shock and haemorrhage as a result of injuries on the scalp, fracture of ribs and rupture of spleen. These injuries were sufficient to cause death in the ordinary course of nature.
8. In the cross-examination he stated that a punctured wound is mostly caused with a sharp pointed weapon and that in his opinion none of the injuries found on the persons of both the deceased had been caused by fire arm. He also stated that the food became semi-digested in the stomach after 2 or 2i hours.
9. All the appellants in their statements before the trial Court disowned the respective weapons.
They denied having participated in the occurrence and stated that they had been implicated due to enmity of the complainant party.
10. Learned counsel for the appellants argues that the enmity existing between the complainant and the accused parties was clearly borne out by the record. It is submitted that there were only two eye-witnesses of the occurrence produced by the prosecution who were closely related to Faiz Ahmad deceased, Hassan Din deceased being servant of Faiz Ahmad deceased. It is pointed out that Muhammad Azam P. W. The first informant was step brother of Faiz Ahmad deceased whereas Muhammad Mansha P. W. Was his son. The testimony of Sardar Khan P. W. To the effect that he saw the appellants carrying their respective weapons after the occurrence and that Naseer Din appellant told him that they had murdered the deceased was not adverted to by learned Additional Sessions Judge as he was not produced before the Committing Court. It is submitted that the testimony of Sardar Khan P. W. Was rightly discarded and that the testimony of the two eye-witnesses should be considered with caution firstly because they were clearly related to Faiz Ahmad deceased, secondly, because they were inimical to the appellant and their testimony was not supported by any corroboratory piece of evidence, it was even in conflict with the medical evidence, and thirdly, because they were merely chance witnesses who claimed to have been present at the scene of occurrence at that early hour of the morning (6 a.m.) while their village was 3/4 mile away. It is submitted that they could have not possibly seen the occurrence. It is also argued that the recoveries in this case stated to have been made at the instance of the appellants were false, Nawab Khan P. W. The only attesting witness produced besides the Investigating Officer being admittedly a stock witness. The case of the appellants is that the occurrence must have taken place some time in the middle or later part of the night and that the deceased had been murdered by unknown assailants unseen by any witness. It is submitted that the presence of urine in the bladder of the two deceased as well as semi digested food in the stomach indicated that they were murdered much earlier than 6 a.m. As alleged by the prosecution.
11. The arguments of learned counsel have force. The enmity between the accused and the complainant parties is clearly established from the record. There are only two eye-witnesses of the occurrence, namely, Muhammad Azam and Muhammad Mansha P. Ws. Who are closely related to the deceased and inimical to the appellants. It is stated in the F. I. R. By Muhammad Azam P. W.
That the appellants were armed with two pistols, eight Gangs and one hatchet. There is no mention in the F. I. R. That the two dangs carried by Naseer Din and Muhammad Akram alias Gung appellants were fitted with spikes. This improvement was subsequently made by the eye-witnesses in order to bring their statements in conformity with A the medical evidence which was to the effect that there were found some punctured wounds on the dead body of Faiz Ahmad. It is also stated in the F. I. R. That Naseer Din and Muhammad Akram alias Gung appellants, were armed with pistols although subsequently revolvers P. 14 and P. 16 were recovered from them. It was stated in the F. I. R.
That when Faiz Ahmad deceased had fallen down Naseer Din and Muhammad Akram alias Gung appellants continuously fired at him from their respective pistols and thus Faiz Ahmad was murdered. However, according to the medical evidence no bullet injury on the dead body of Faiz Ahmad was found. No empty had been picked up from the spot. It is, therefore, obvious that by the eye-witnesses the punctured wounds found on the person of Faiz Ahmad deceased were taken to be bullet wounds. There is also another aspect and, that is, that the appellants belonged to different tribes, different castes and were residents of different places. It is difficult to accept that they had collected together somewhere and planned the murders of the deceased and then in furtherance of their common intention all of them armed themselves and appeared together at the scene of occurrence at 6 a.m. The two eye-witnesses had stated that their village was at a distance of 3/4 mile from the scene of occurrence and that at the place of occurrence they were cutting parali fodder with the toka machine at 6 a.m. While the two deceased were smoking huqqa at the chah. According to Muhammad Azam P. W. He and Muhammad Mausha P. W. Had reached the chah at nimazwela on the day of occurrence and that Faiz Ahmad and Hassan Din deceased were also there as they had spent the night at the well. But it is difficult to accept that the two eye- witnesses came at nimazwela to the place of occurrence from their village at a distance of 3/4 mile in order to cut parali fodder. It appears that besides being closely related to Faiz Ahmad deceased and also being inimical to the appellants they were chance witnesses. The testimony of Sardar Khan P. W. Was rightly discarded by learned Additional Sessions Judge for he had not been produced before the Committing Magistrate. His testimony, therefore, is not of any help. Now the question remains as to whether the testimony of the interested and inimical eye-witnesses is corroborated by any independent piece of evidence. Their statements are in conflict with the medical evidence. They have made improvements in their statements before the trial Court by stating that two of the appellants were carrying dangs fitted with spikes which were not so described in the F. I. R. Their statements to the effect that Naseer Din and Muhammad Akram alias Gung appellants fired from their respective pistols at Faiz Ahmad when he had fallen down are also not supported by the medical evidence which is to the effect that no fire-arm injury was found on the person of Faiz Ahmad deceased. In the circumstances it would be unsafe to rely on their testimony. Furthermore, the contents of the stomach a well as bladder of the two deceased indicates that they may have been murdered either at mid-night or the later part of the night i,e, much before the time (6 a.m.) as stated by the prosecution. If we assume that the deceased took the last meal at around 9 or 10 p.m. On the preceding evening, the food in the stomach would have been semi-digested after approximately three hours. This would mean that they were murdered either around 12 or 1 a.m. Or probably at 2 or 3 a.m. Since, according to the eyewitnesses, both the deceased spent the night at the chah it is reasonably probable that they were attacked by unknown assailants at the dead of night and were done to death. There is only one recovery witness who has been produced by the prosecution, namely, Nawab Khan P. W. Besides the Investigating Officer. The other witnesses of the recoveries from the appellants were given up as having been won over. Nawab Khan P. W. Is admittedly a stock witness. It is also strange that Naseer Din appellant is arrested on the 7th of November 1969, five days after the occurrence and revolver P. 14 is recovered from his person on the same day but Bang fitted with spike P. 5 is not recovered on the same day. He leads to this recovery two days later i,e, on the 9th of November 1969. Similarly, Muhammad Akram alias Gung appellant is arrested on the 8th of November 1969, and revolver P. 16 is recovered from him on the same day but human blood-stained clang fitted with spike P. 8 at his instance is recovered five days later 1.e, on the 13th of November 1969. Ghulam Muhammad appellant is arrested on the 8th of November 1969, but he leads to the recovery of human blood-stained dang P. 6 three days later i,e, on the 11th of November 1969. Allah Ditta appellant is arrested on the 8th of November 1969, but he leads to the recovery of human blood- stained dang P. 7 four days later i,e, on the 12th of November 1969. Muhammad Sharif appellant is arrested on the 12th of November 1969, but he leads to the recovery of human blood-stained dang P. 9 after two days i,e, on the 14th of November 1969. Ghulam Nabi appellant is arrested on the 8th of November 1969, but he leads to the recovery of human blood-stained dang P. 10 after fifteen days i,e, on the 23rd of November 1969. Muhammad Akbar, Muhammad Nazar and Muhammad Ali appellants are arrested on the 29th of November 1969, but they lead to the recovery of human blood-stained dangs P. 11, P. 12 and hatchet P. 13 after two, three and four days respectively. The investigation in this case must have started on the 2nd of November 1969, and throughout the time before the appellants were arrested on different dates, they should have known that the investigation was being carried out and yet on considerable intervals after their arrest they led to the recoveries of human bloodstained weapons of offence and did not think of disposing them of. It is, therefore, doubtful if these recoveries were genuine, particularly when the only one recovery witness, namely, Nawab Khan P. W. Besides the Investigating Officer is admittedly a stock witness.
The recoveries, therefore, are not of any value in this case. In our considered opinion is it reasonably probable that the two deceased were murdered some time in the night long before 6 a.m. By unknown assailants and the occurrence was not witnessed by any one. In the circumstances, the appellants should have been given the benefit of doubt. Their convictions and sentences, therefore, were not proper. We accordingly set aside their convictions and sentences and acquit the appellants. Their appeal is accepted. They shall be released forthwith from Jail if not wanted in any other case.
12. In the light of what has been discussed above Criminal Revision No, 516 of 1972 is dismissed.
13. Reference for the confirmation of death sentence awarded to Naseer Din appellant by the trial Court is hereby rejected.