' MUHAMMAD MUNIR KHAN, J.---This criminal appeal with leave of the Court arises from the facts that in the occurrence which took place on the night between 19th/20th April, 1988 at 12-15 a.m. On a path, five/six Killas away from village Bhullor and six miles from Police Station Motra, District Sialkot, the appellants Basharat and Ghulam Mustafa sons of Muhammad Shall allegedly killed their maternal uncle Muhammad Sharif by causing injuries with a Chhuri and pistol respectively, in presence of Akbar All P.W.11, Muhammad Yousaf P.W.12 and Liaquat All P.W. (not produced). The F.I.R.
Exh.PF/1 registered at Police Station Motra on 20-4-1988 at 2-35 a.m. Is based on the statement Exh.PF of Akbar All P.W.11 recorded by Ahmad Hassan S.H.O. P.W.13 on the same night at 2-15 a.m. In Chowk Bhallowali. According to the F.I.R., Mst. Ruqqayya Bibi told Akbar All complainant on 19-4- 1988 at about Isha time that her husband Muhammad Sharif had left noon time for the house of Basharat and Ghulam Mustafa appellants for realising the amount he had spent in pursuing the murder case registered against them, but had not come back. On this Akbar All went to the house of the appellants situate in village Aada on a Motorcycle alongwith Muhammad Yousaf P.W.12 and Liaquat All (not produced). Reaching there, he found the deceased and the appellants quarrelling over the payment of Rs,15,000 being claimed by the deceased. After arrival of the complainant and others it was decided that the matter be got settled from Inayat resident of village Bhullar. So, all of them left for village Bhullar. Akbar All and his son Liaquat Ali were riding the motorcycle driven by Muhammad Yousaf P.W.12. The appellants and the deceased were riding on another motorcycle.
When they were at a distance of five/six Killas from village Bhullar, Basharat stopped the motorcycle saying plug of his motorcycle was not in order. Muhammad Yousaf also got down from the motorcycle but kept its lights on to enable Basharat to clean the plug. As soon as Muhammad 'Sharif got down from the motorcycle, Ghulam Mustafa taking out revolver from fold of Chadar fired two shots at him hitting the chest and near the ear. Basharat gave him Chhuri blows on different parts of his body. The prosecution witnesses tried to interfere but Ghulam Mustafa scared them away pointing revolver towards them.
2. The motive allegedly was that a year before the present occurrence, the appellants were challaned in a murder case. Muhammad Sharif deceased pursued their case and spent Rs,15,000 from his pocket. Basharat and Ghulam Mustafa were acquitted in that case about six months before this occurrence. Muhammad Sharif deceased demanded the money spent by him which was resented by them.
3. Dr. Zafar P.W.8 who conducted post-mortem examination found two fire-arm injuries and 31 incised wounds on the dead body of the deceased which were sufficient to cause death in ordinary course of nature.
4. Basharat appellant was arrested on 28-4-1988 by Ahmad Hassan S.H.O., P.W.13 from Chowk Bhallowali, while driving Motorcycle SKA-5845 (P.6) which was seized vide Memo. Exh.PH. On 30-4- 1988, he got recovered blood-stained Chhuri P.5 from his house in presence of Mushtaq Ahmed P.W.6 and Chaudhry Allah Ditta P.W.9. The same police officer arrested Ghulam Mustafa on 17-8- 1988 and recovered revolver P3 and four bullets P.7/1-4 from his personal search which were taken into possession vide Memo. PQ attested by Ghulam Haider P.W.15, Nazir Ahmed P.W. (not produced).
5. To prove its case, prosecution produced 17 witnesses in all. Akbar All and Muhammad Yousaf are the eye-witnesses of the occurrence. Mushtaq Ahmed P.W.6, Allah Ditta P.W.13, Ghulam Haider P.W.15 are the witnesses of the recovery of weapons from the appellants. Dr. Muhammad Zaffar P.W.8 proved post-mortem examination report of the deceased. Aftab Ahmed F.C. P.W.10 was entrusted with warrants of arrest of Ghulam Mustafa. He returned the warrants with the report that the accused was not traceable. He was then given proclamation Exh.PK issued by the Magistrate and after completing the formalities, the same was returned with his report Exh.PK/1. The rest of the evidence is of formal nature.
' When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. In answer to question No,9 as to why he was involved in the case, Basharat appellant stated:-- "I am innocent and have been falsely involved in this case by Akbar All complainant with the connivance of his son Liaqat All (given up P.W.) and Mst. Ruqqyya Begum wife of the deceased.
Said Mst. Ruqqyya Begum is the daughter of my real uncle Ilam Din. Mst. Rasoolan Bibi the mother of Mst. Ruqqyya Bibi had got divorce from Ilam Din and had married with one Ashiq Hussain Barber resident of Chak No,104 Sargodha. Mst. Ruqqyya Begum was firstly married in village Dholaywali, Tehsil Daska. Mst. Rasoolan Bibi got divorce of her daughter Mst. Ruqqyya Begum from Dholaywali and married her with Muhammad Yousif Barber the real brother of aforesaid Ashiq Hussain Barber.
I and my family members abused and reprimanded the aforesaid ladies after marriage with Moeens. Ultimately Mst. Ruqqyya Begum was divorced by Muhammad Yousaf Barber. Akbar Ali complainant then married Mst. Ruqqyya Begum with my maternal uncle Muhammad Sharif deceased. At the time of occurrence Mst. Ruqqyya Begum was of the age of about 27/28 years and Muhammad Sharif was about 40/45 years at the time of his murder. Liaquat (given up P.W.) aged about 27/28 years had developed illicit relations with Mst. Ruqqyya Begum. I and my co-accused brother had abused time and again Liaquat All and Mst. Ruqqyya Begum and directed them to discontinue their bad relations but they did not do so. A quarrel and exchange of abuses took place between us and Liaquat All P.W. I or my co-accused brother have no grudge, grouse or enmity against Muhammad Sharif deceased. The motive part of the story is also fabricated one.
According to my information it was a blind murder. The complainant party received information about the death of the deceased in their village in the morning and after due deliberations, consultation and aforesaid dresting in the mind of Liaquat All and Ruqqyya Begum they got a false case registered with the connivance of the police. I am absolutely innocent."
' Ghulam Mustafa adopted the statement made by his co-accused. The appellants in disproof of the charge had themselves appeared and stated on oath that they were innocent. They did not examine any other witness in defence.
6. Learned trial Court vide its judgment dated 28-9-1989 convicted the appellants under section 302/34, P.P.C. And sentenced them to death and a fine of Rs,5,000 each or in default to undergo one year's R.I. Each. Appeal filed by them before the Lahore High Court, Lahore, against their conviction was dismissed on 2-6-1992 and the sentence of death was confirmed. Feeling aggrieved thereby, they filed a petition for leave to appeal in this Court which was granted on 16-1- 1993.
7. Learned counsel for the appellants has argued that it was an unseen murder; the claim of Akbar All and Muhammad Yousaf P.W.3 to have seen the occurrence was not true; that the complainant party received information about the murder of the deceased in the morning and falsely involved appellants at the instance of Mst. Ruqqyya Begum and Liaquat All P.W. With whom they had a quarrel and exchange of abuses few days before the occurrence.
' Learned counsel for the State has supported the impugned judgment.
8. Having carefully considered the arguments of the learned counsel for the parties in the light of the evidence on record and circumstances of the case, we feel that although the eye-witnesses were not inimical towards the appellants yet the case as a whole appears to be doubtful for the reasons that the F.I.R. In this case was not lodged at the police station. According to the prosecution case, Akbar All complainant met Ahmad Hassan S.H.O. At Chowk Bhallowali and his statement was recorded there at 12-15 a.m. In cross-examination Akbar All complainant stated that he accompanied the police to the place of occurrence reaching there at about 2-00 a.m. Muhammad Yousaf P.W.12 stated that the police recorded his statement on 20-4-1988 at 12-00/1-00 midnight at Adda Bhallowali. So, it is very much clear that the police had reached the place of occurrence mush before 2-15 a.m. And there remains no doubt whatsoever that the time of the recording of the statement of Akbar Ali as 2-15 a.m. Mentioned in the F.I.R. Was not correct. The statement Exh.PK was not written at the place and time as it purports. So, the investigation was dishonest from the beginning. No doubt, the prosecution case cannot and should not be thrown away on this score alone but this infirmity in the prosecution case will certainly put the Courts on guard while appreciating the prosecution evidence.
9. Akbar All and Muhammad Yousaf P.Ws. Had no motive to involve the appellants falsely in the case. The absence of enmity, however, will not stamp their statements with truth. It is to be seen whether the statements made by them are in consonance with probabilities and materially fit in the circumstances of the case and are confidence inspiring. The occurrence took place at a path, at considerable distance from their house. Muhammad Sharif deceased reached the house of the appellants before the arrival of the eyewitnesses. It is a strange coincidence that after Isha time when the eyewitnesses reached the house of appellants, they found the deceased demanding return of Rs,15,000 from the appellants. It also does not appeal to reason that the deceased and the eye-witnesses would leave for the village of Inayat for settlement of the dispute at odd hours of the night. The deceased being real maternal uncle of the appellants, could wait for the settlement of the dispute at least till next day. Presence of 33 injuries on the dead body of the deceased shows that the same were inflicted in at least fifteen minutes as is admitted by the complainant. It means that the culprits had no fear of any interference and they inflicted injuries at leisure and to their satisfaction. Had the eye-witnesses including the brother of the deceased been present on the spot, the culprits would have not been able to cause so many injuries without any interference by the prosecution witnesses. The conduct of the eye-witnesses of not interfering in the occurrence and the conduct of the appellants of inflicting 33 injuries with Chhuri in the presence of the close relatives of the deceased run counter to natural probabilities. There is no judicial certainty or circumstantial guarantee about the presence of the eye-witnesses on the spot. On the other hand, there are cogent reasons to doubt that the eye-witnesses were present on the spot and had seen the occurrence. So, there is no option but to exclude the ocular evidence from consideration.
10. The presence of 33 injuries caused with sharp-edged weapon on the person of the deceased shows that the culprits were highly provoked against him. The motive alleged by the prosecution in the case does not fit in the manner in which the deceased has been done to death.
11. The occurrence took place on 20-4-1988. Basharat appellant was arrested on 28-4-1988. The blood-stained Chhuri was allegedly recovered from his house on 30-4-1988. It is not believable that he would have kept blood-stained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it. After disbelieving the alleged motive, exclusion of the ocular evidence and the rejection of the incriminating recovery, there remains circumstance of abscondence of Ghulam Mustafa which per se is not sufficient for conviction under section 302, P.P.C.
12. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellants, the appeal is accepted, the appellants are acquitted and shall be released forthwith if not required to be detained in any other case.
' We had allowed the appeal and ordered the release of the appellants by our short order dated 30-4-1995 and these are the reasons therefor.