' GULBAZ KHAN, J.-Sultan son of Gahla, caste Wattoo,iagad 58 years, and his two sons Bagh All egad 32 years, and Falak Sher, aged 30 years, all residents of Bhani Awana, Village Amruka, were convicted by the learned Sessions Judge, Bahawalnagar, on 16-6-1973, under section 302/34, P. P.
C. Falak Sher was sentenced to death while Sultan and Bagh All to life imprisonment. Falak Sher, Bagh Ali, and Sultan filed an appeal against their convictions and sentences. The case was referred to this Court for the confirmation of death sentence of Falak Sher. This judgment would dispose of this criminal appeal as well as the murder reference.
2. On 6-12-1971, at 10-00 a.m. Muhammad Yar son of Mohnt. (P. W. 6) was grazing goats in his field.
Abdul Sattar deceased was grazing cattle nearby. Two aircrafts came from India side. Muhammad Yar P. W. And Abdul Satiar deceased laid in the water course. The cattle got frightened and entered the cotton field of Sultan accused. After the danger was over, Muhammad Yar (P. W. 6) and Abdul Sattar deceased got up and looked for the cattle and found the cows of the deceased in the cotton field of Sultan accused. The cattle were rounded up by Sultan, Falak Sher and Bagh Ali. Suleman (P.
W. 7) and Yara (P. W. 9) also reached the spot. When Abdul Sattar deceased reached near his cattle, he was attacked by Falak Sher, Bagh All and Sultan accused. Falak Sher accused inflicted stick blow to the deceased on his head. Bagh All and Sultan accused gave stick blows to the deceased on the shoulder. The deceased fell down. The occurrence was witnessed by Muhammad Yad (P. W. 6), Suleman (P. W. 7) and Yara (P. W. 9). The three eye-witnesses reached the spot running. The three accused fled away. Sajwara (P. W. 8), Farzand All and Ahmed Din came to the spot on hearing noise. Abdul Sattar fell unconscious on account of injuries. He was put on a cot and taken to the Police Station, Mcleod Ganj, which was 14 miles from the spot of occurrence.
3. Muhammad Yar lodged F. I. R. Exh. P. A, on 6-12-1971, at 4-00 p. Tn. Under section 307/34, P. P. C.
Which was recorded by Muhammad Anwar S. H.
0. Injury statement of Abdul Sattar was prepared and heivas sent to hospital for medical examination. Abdul setter expired the same day, at 10-30 p.m. And offence 307, P. P. C. Was changed to 309, P. P. C. The S. H.
0. Recovered blood-stained earth from the spot and sealed it into a percel vide memo Exh. P. C. He arrested Sultan accused on 10- I 2-1971, who produced stick P. I, which was taken into possession vide memo Exh. P. C/1. The three accused were challaned and after enquiry, committed to the Court of Session.
4. The prosecution examined ten witnesses in order to prove the case. Doctor Manzoor-ul-Haq first medically examined Abdul Sattar, on 6-12-1971, at 5-30 p.m. And found a lacerated wound on the scalp, reddish contusion mark over the right scapula and another reddish contusion mark on the back of the chest. According to the doctor, Abdul Sattar was in deep comatose condition. Injury No, 1 which was on the scalp, was kept under observation and X-ray was advised. Injuries No, 2 and 3 were simple. All had been caused with blunt weapon. The same doctor conducted post-mortem examination on the deed body of Abdul Sattar, on 7-12-1971 at 10-00 a.m. He found haematoma present on the top and both sides of under surface on the scalp and over the skull. Right parietal bone was fractured. Right parietal suture "long and left parietal suture 54" long opened up.
Membranes on the left side of brain were congested. Blood clot was present over the right side of brain corresponding to injury No,1 and blood clot was present over all the surface of left side of the brain. In the opinion of the doctor, the death was due to severe shock and haemorrhage over the brain resulting in compression of brain due to injury No, 1 which was sufficient to cause death in the ordinary course of nature.
5. The prosecution examined Muhammad Yar son of Mohna (P. W. 6) Suleman (P. W. 7). Sajwara (P.
W. 8) and Muhammad Yar son of Pathana (P. W. 9) as the eye-witnesses of the case. The four eye- witnesses are closely related to the deceased, Muhammad Yar son of Mohna (P. W. Is a cousin of the deceased. Suleman is a maternal uncle of the deceased. Muhammad Yar son of Pathana P. W.
Is a cousin of Suleman P. W. Sajwara P. W. Is a real brother of the deceased. Muhammad Yar (P. W.
6) and Suleman (P. W. 7) supported the prosecution case at the stage of the trial. Both these witnesses had not supported the prosecution case when their statements were recorded by the Committing Magistrate. \t the request of the learned counsel for the accused, the statements of the said two witnesses were transferred to the Sessions file under section 286, Cr. P. C. Those statements are to be treated as substantive evidence. Muhammad Yar (P. W. 6) stated before the Committing Megistrate that when he got up after the danger was over, he found Sultan accused standing over Sattar, who was lying murdered. He also stated that he saw 10/12 persons including Falak Sher and Bagh Ali running away. The witness was allowed to be cross-examined on the request of the A. P. P. During cross-examination by the A. P. P. The witness categorically stated that he did not see Falak Sher, Bagh Ali and Sultan accused inflicting stick blows to the deceased.
During cross-examination by the learned defence counsel, the witness admitted that it was correct that all those persons were muffling their faces and he had not seen their faces. He further stated that Sultan accused was apprehended at the spot and taken to the police station. It was quite contradictory to the position of the ,witness taken up in the F. I. R. The witness had clearly mentioned in the F. I. R. That Sultan, Bagh Ab and Falak Sher accused had run away from the spot.
The witness contradicted the F. I. R. Several times. In the F. I. R. He had mentioned that he was grazing/ goats in his own field while at trial he stated that he was grazing cattle in the field of Sattar deceased. The witness stated before the trial Court that the deceased brought out his cattle from the field of Sultan and the three accused came there armed with sotas, but in the F. I. R. He had mentioned that the three accused rounded up the cattle and when Abdul Sattar reached near them, they assaulted the deceased. It was also mentioned by Muhammad Yar P. W. In the F. I. R.
That the three accused ran away from the spot and on hearing noise, Farzand Ali, Sajwara and Ahmad Din reached there. The witness took up a strange position by stating that the occurrence was also witnessed by Sajwara P. W. In the F. I. R. He had clearly mentioned that he, Suleman and Yara had seen the occurrence. This fact will show that Muhammad Yar P. W. Made effort to introduce Sajwara P. W. As an eye-witness in this case. The witness denied to have stated before the Committing Magistrate that after half an hour when he came out from the shelter, he saw Sultan standing and Sattar deceased lying on the ground and Sultan was standing over him and 10/12 other persons including Falak Sher and Bagh Ali accused running. He was confronted with his earlier statement where it was so recorded. The witness admitted that he was declared hostile and cross-examined by the A. P. P. The witness tried to explain away the contradictory position taken up before the Committing Magistrate by stating that he had made that statement under coercion. By coercion he meant that his cousin had been murdered and he was not in his senses. This explanation is not at all convincing and cannot be accepted. This witness had made two contradictory statements on oath. He had not supported the prosecution case while making statement before the Committing Magistrate. He is not a trust worthy person and no reliance can be placed on his testimony. His statement is rejected.
' Position of Suleman P. W. Was the same. He did not support the prosecution case before the Committing Magistrate and was allowed to be cross-examined by the A. P. P. He, however, supported the prosecution case during the trial. The witness deposed before the Committing Magistrate that three persons had given beating to Sattar deceased with sticks and that he was unable to identify them. He had mentioned the names of the three accused as assailants in his statement recorded under section 164, Cr. P. C: He gave explanation before the Committing Magistrate that he was told the names of three accused by Muhammad Yar and thus he had mentioned their names. He further stated that he did not know personally and was unable to identify them by the faces while he could identify them only by the clothes. At the trial, the witness denied to have stated before the Committing Magistrate that the three persons whom he could not identify came there and gave sota blows to the deceased. He was confronted with the said statement where it was so recorded. He denied that he was declared hostile before the Committing Magistrate and was cross-examined by the A. P. P. He did not make correct statement in that respect. In fact he was declared hostile and cross-examined by the A. P. P. The witness stated that he mentioned the name of Sajwara P. W. As being present in his statement before the Committing Magistrate. He was confronted with that statement, where it was not so recorded. The witness denied to have stated before the Committing Magistrate that he named the accused persons in his statement under section 164, Cr. P. C. At the instance of Muhammad Yar P. W. And that he did not know them personally and identified the accused from their clothes and not from the faces. He was confronted with that statement, where it was so recorded. In view of the total departure from the statement made before the Committing Magistrate, no implicit reliance can be placed on the statement of the witness made during the trial.
' The statement of Sajwara (P. W. 8) cannot be considered for the reason that he had reached the spot after the accused had fled away. This was the position of Muhammad Yar P. W. In the F.
1. R. Subsequently, an effort was made by the witnesses to introduce Sajwara P. W. As an eyewitness. Suleman P. W. Did not name Sajwara as being present in his statement before the Committing Magistrate. In the site plan Exh. P. 17/1 also, the presence of Sajwara was not indicated.
Statement of Sajwara was recorded under section 164, Cr. P. C. He denied to have mentioned in his statement recorded under section 164, Cr. P. C. That he saw Falak, Bash Ali and Sultan running away after giving blows to Satter. He was confronted with that statement, where it was so recorded.
Position of the witness in his statement recorded under section 164, Cr. P. C. Was that he had seen the three accused running away after inflicting injuries to the deceased, but before the trial Court, he gave an eye account of the occurrence. The witness stated that sticks had been recovered from all the three accused. This is again incorrect because according to the prosecution case, only Sultan accused had produced the stick. The witness insisted that he mentioned in his statements under section 164, Cr. P. C. And before the Committing Magistrate that the sticks were recovered from all the three accused. He was confronted with both the statements where it was not so recorded. He is a real brother of the deceased. We discard his statement.
' Now we are left with the statement of Muhammad Yar son of Pathana. The witness mentioned before the Committing Magistrate that there were two other persons whom he saw running but those could not be identified by him. Another fact would show that this witness was also not present at the spot. The witness stated at the trial that Sultan accused was apprehended at the spot by Muhammad Yar and Suleman P. Ws while the other two accused had run away, He further stated that Sultan accused, who had a sota with him was then taken to the Police Station along with sota P. 1: The complainant had mentioned in the F. I. R. And in his statement before the trial Court that the accused ran away after the occurrence. Position of Suleman (P. W. 7) was the same this respect before the trial Court. Sultan accused was arrested on 10-12-1971 1 e. Four days after the occurrence and according to the Investigating Offices he produced stick on that day. This would amply prove that Muhammad Yar made false statement in this regard. The witness denied to have stated before the Committing Magistrate that it was correct that 10/12 persons had run away from the spot and they had muffled up their faces and that they had sticks with them. He was confronted with that statement where it was so recorded. These facts conclusively prove that Muhammad Yar (P. W. 9) did not come out with the truth.
6. We have already rejected the statements of the four eye-witnesses. There is no corroborative piece of evidence or incriminating circumstance to prove the guilt of the accused.
7. The accused had denied their participation in the occurrence, who attributed the case due to enmity. They did not lead any evidence in defence.
8. In view of the above discussion, we hold that the case was not proved against the accused and they are entitled to acquittal. We, accordingly, accept this appeal, set aside the judgment of the trial Court and acquit Falak Sher, Sultan and Bagh Ali accused. They shall be set free forthwith, unless wanted in some other case. The death sentence passed upon Falak Sher accused is not confirmed.