' Jamb IQBAL, J.-Bagga, aged 41 years, Rehman, aged 38 years, both sons of Ghulam Rasul and brothers as well as Boota son of Fateh Muhammad, aged 35 years, their cousin, had been convicted under section 302/34, P. P. C. For the murder of Ghulam Haider, and Bagga and Rehman were sentenced to death whereas, Boota was sentenced to transportation for life vide judgment dated the 22nd of September, 1971, of the Sessions Judge, Sheikhupura. Their appeal as well as reference for the confirmation of death sentence awarded to Bagga and Rehman are being taken up and disposed of together by this judgment.
2. The occurrence is stated to have taken place at 10. a. m. On the 11th of March, 1970, within the area of village Lubanwala, at a distance of 12 miles from Police Station Ferozewala, District Sheikhupura. Statement (Exh. P. B.) of Muhammad Tufail P. W. 10 was recorded by Mukhtar Ahmad S. I, P. W. 13 on the spot at 11-30 a.m. On the same day and on the basis of this statement formal F. I. R.
(EA. P. E./1) was registered at Police Station, Ferozewala at 12-30 p.m. On the same day by Muhammad Yaqub Khan A. S. I. P. W.
3.
3. The motive as disclosed in the F. I. R. Is that 8/9 years prior to the occurrence Labba, brother of Bagga and Rehman appellants had been murdered by the cousins of the deceased who were subsequently acquitted. It is stated that the appellants murdered Ghulam Haider in order to take revenge. It may be pointed out at this stage that Ghulam Haider deceased was not an accused person in that murder case, It is also on record that during the past 8/9 years the cousins of Ghulam Haider deceased and the accused party never quarrelled. It is so stated in the cross- examination of Muhammad Tufail P. W. Anyway, Ghulam Haider deceased was neither directly nor indirectly concerned with the murder of Labba. Therefore, had the accused party been moved by a sentiment of revenge they could have taken it much earlier and from the cousins of the deceased.
In our view, therefore, the motive for once in this case is too remote and far-fetched. We attach no significance to it.
4. The occurrence is reported to have taken place in the following manner : The deceased along with Muhammad Tufail, Muhammad Nawaz and Taj P. Ws. Went out from the village in a rairha in order to get jhamb (used for distilling water) for their well. When they reached opposite village Lubanwala, they met the appellants. Rehman appellant was armed with a pistol, Bagga appellant with a hatchet and Boota appellant with a laths. The three of them were riding on two mares.
Bagga appellant on seeing them raised a lalkara to the effect that they had come to take revenge of the murder of their brother. Thereupon, Muhammad Tufail, Muhammad Nawaz and Taj P. Ws.
Along with Ghulam Haider deceased jumped down from the rairha. Muhammad Nawaz, Taj and Muhammad Tufail P. Ws. In order to save their lives ran towards Lubanwala School and Ghulam Haider deceased ran straight towards the chhapper. Bagga and Rehman appellants handed over their mares to Boota appellant and themselves chased Ghulam Haider deceased. The two of them caught hold of him. Bagga appellant gave a hatchet blow on the head of Ghulam Haider deceased and Rehman appellant fired at him with his pistol. Ghulam Haider fell down near the chhapper. Thereafter, Rehman appellant fired at him 3/4 shots and Bagga appellant inflicted 9/10 hatchet injuries to him in the fallen position on his head, jaws, face, neck, etc. Ghulam Haidhr died on the spot. Throughout this period Boota appellant was raising laikaras that they should finish Ghulam Haider. Then Bagga and Rehman appellants asked Boota appellant to bring the mares so that the dead body of Ghulam Haider could be taken on a mare for the purpose of drowning it in the river. The eye-witnesses went on raising hue and cry and in the meantime on hearing their alarm as well as pistol fire teporti Shafi (given up as having been won over) was attracted to the scene of occurrence who also witnessed the occurrence. The appellants changed their mind about taking away the dead body of the deceased and leaving him there left the scene of occurrence.
Muhammad Tufail P. W. Was about to proceed to the police station in order to lodge the report when the investigating officer, namely, Mukhtar Ahmad S. I. P. W. 13, came to the spot himself on getting information respecting the occurrence and recorded his statement.
5. The prosecution has produced three eye-witnesses In this case, namely, Muhammad Tufail P. W.
10, who is brother-in-law of the deceased, 1. e. His sister is married to the deceased, Muhammad Nawaz P. W. 11, who is the son of the brother of the deceased and Taj P. W. 12 who is tenant of the deceased and his brothers for the past 8/10 years. Shafi, the only unconnected and independent witness cited in the F. I. R. Who had witnessed the occurrence was not produced at the trial and was given up as having been won over. It may be noted that the three eye-witnesses of the occurrence produced by the prosecution are closely related to the deceased.
6. All the appellants were arrested by Mukhtar Ahmad S. I. P. W. On the 13th of March 1970, i. e. Two days after the occurrence, no recovery was effected from Boota appellant. From Rehman appellant was recovered revolver P. 7 and taken into possession vide memo. Exh. P. H. Dated the 28th of March, 1970 This recovery was made from him 16 days after his arrest. From Bagga appellant was recovered blood-stained hatchet P. 6 which was taken into possession vide memo. Exh. P. G., dated the 26th of March, 1970. This recovery was made from him 14 days after his arrest. The attesting witnesses of both these recoveries besides Mukhtar Ahmad S. I. P. W. Are Noor Hussain and Asghar Ali P. Ws. 6 and 7. Both these witnesses lived at a distance of 10/11 miles from the place of occurrence. These recoveries were neither sent to the Chemical Examiner or Serologist nor to the Firearms 'Expert. The Sessions Judge has correctly not relied upon these recoveries and has given his reasons in para. 9 of the judgment.
7. Dr. Muhammad Akhtar Hussain Chatha P. W. 9 conducted post-mortem examination on the dead body of Ghulam Haider at 9-00 a. m. On the 12th of March 1970, and found on his person five pistol shot wounds, eleven incised wounds and three contusions. These injuries are located on the head, face, jaws, nes3k and upper chest and back parts of the body. According to him, the, 'death had resulted because the lungs were punctured from the upper lobes and juglar veins were cut.
Similarly, trachea was cut, vertebra was cut along with the spinal cord and left parietal bone was fractured. The deceased died of excessive haemorrhage and shock. From the injuries on the person of the deceased it appears that injuries received by him were caused by three types of weapons t. e. Firearm, sharp-edged and blunt weapons. There are in all 19 injuries sustained by the deceased.
8. The prosecution case against the appellants is based on uncorroborative testimony of three eye-witnesses, namely, Muhammad Tufail, Muhammad Nawaz and Taj P. Ws. Who were either closely related or connected with the deceased.
9. The appellants in their statements before the trial Court totally denied having participated in the occurrence. Bagga appellant disowned hatchet P. 6 and Rehman appellant disowned revolver P.
7. They stated that they had been falsely implicated on suspicion by the P. Ws. Who were inimical towards them. A suggestion had also been put on behalf of the defence to the eye-witnesses that the deceased was carrying on illicit relations with one. Mst. Fatima and that the menfolk of that woman were suspected for having murdered the deceased and that the police had joined the in- laws of Mst. Fatima in the investigation of this case as suspects. This suggestion was denied as incorrect by Muhammad Tufail P. W.
10. We have gone through the record carefully and heard learned counsel for both the sides in detail. The prosecution case rests entirely on the ocular testimony of three eye-witnesses.
Muhammad Tufail P. W., the first informant and brother-in-law of the deceased had stated in the cross-examination befori the trial Court that the accused had muffled their faces and they kept their faces covered till they ran away after the occurrence. He was declared hostile and the statement made by him before the committing Magistrate was transferred under section 288, Cr. P.
C. He had stated that he, Taj and Muhammad Nawaz P. W. Were by chance sitting with the deceased when the deceased asked them to accompany him in his rairha in order to get the jhamb was contradicted by the other eye-witnesses. According to him they stayed at the place of occurrence after the death of the deceased for I hours and yet during this period they did not send any one to the Police Station. Muhammad Nawaz P. W. Had stated that during the occurrence they remained concealed in the school and that the spot was visible from the school. He stated that they saw the occurrence as they were standing in the school at a distance of 20 karams away. He further stated that the ,deceased alone had, asked him to accompany him while he was at his house. He stated that the rairha was standing on the spot when the police arrived, there and that they showed the rairha to the police. He did not know how the police came to the spot. Taj P. W.
Stated that the accused ran after them on their mares. In the cross-examination he answered this question after a pause that it was incorrect that the accused had muffled their faces. He further stated that there were houses intervening between the spot and the place where they were standing. This would indicate that they could have not seen the occurrence. Mukhtar Ahmed S. I. P.
W. Stated that he was present on Muharram duty in Mauza Awan Par when he got information about the occurrence. Mamma Awan Par was 7/8 miles away from the spot. He reached the spot on his own accord and recorded the statement of Muhammad Tufail P. W. He stated that he got the information about the murder of the deceased but could not tell the name of the person who informed him nor did he take him to the spot. When he reached the spot many persons were present there. He did not enquire about the rairha and nobody showed him the rairha. The residents of the houses which were situate near the spot were called by him but he did not record their statements. This is the entire evidence against the appellants. We find that the ocular testimony in this case does not only have material contradictions but it is also interested and partisan. The only independent and unconnected witness namely, Shaft, had not been I produced.
The three eye-witnesses produced, firstly, do not agree as to how they went with the deceased in a rairha. Secondly they stated that the rairha was pointed out by them to the investigating officer but the investigating officer contradicts them. There are also discrepancies in their statements as to how the occurrence took place. Furthermore, the ocular testimony is not corroborated by any independent piece of evidence. In the circumstances, in our view, it would not be safe to rely on the ocular testimony alone which is anyhow interested. After a careful perusal of the statements of the eye-witnesses we have arrived at the conclusion that it was doubtful if they had witnessed the occurrence. It is quite probable that the deceased may have been done to death by some unknown assailants and his body was subsequently found near the chhappar. If the motive for offence advanced by the prosecution was that the appellants wanted to take revenge of an occurrence that had taken place 8 years before, then they could have taken revenge from the persons concerned and much earlier. The deceased was not one of the accused persons in the murder of the brother of the appellants. We have already pointed out that we do not attach any importance of the motive. It is strange that the prosecution has produced a police officer, namely, Abdul Wahid, A. S. I. P. W. 8 as a wajtakkar witness before the occurrence. He stated that he met the appellants earlier in the morning on the 11th of March 1970, while the three of them riding on two horses were proceeding towards the pacca road. Bagga appellant exchanged greetings with him and told him that they were proceeding to village Lobanwala. He further stated that Bagga appellant was holding a hatchet. He did not remember having stated so before the committing Magistrate because he had not stated so in his statement before the committing Magistrate. He did not tell the investigating officer at that time that he had seen the three appellants going towards the village. The testimony of this witness casts a shadow of doubt on the entire prosecution version. In our opinion the prosecution has not succeeded in establishing its case against the appellants beyond reasonable doubt.
' In the light of what has been discussed above the appellants should have been given the benefit of doubt which we hereby give them. Their conviction and sentence are set aside and they are acquitted. Their appeal is accepted. They shall be released horn jail forthwith if not wanted in any other case.
11. Reference for the confirmation of death sentence awarded to Bags and Rehman appellants is rejected.