' Akram Masih son of Inayat Masib, aged 25 years, and Warris Masih son of Allah Rakha, aged 22 years, both relatives, have been convicted under section 302/34. P. P. C. For the murder of Mukhtar Masib, aged 35 years, and vide judgment dated the 26th of January 1976, of the Sessions Judge, Lyallpur, each of them was sentenced to imprisonment for life plus fine of Rs, 1,000 or in default to undergo six months R. I. And if the fine was realised from them it was ordered to be paid as compensation to the heirs of the deceased. The appeal of the convicts is before me which is being disposed of by this judgment.
2. The occurrence took place at about 9-00 p.m. On the 17th of October 1973, in 'B' Block, Peoples Colony, Lyallpur. Statement Exh. P. A. Was made by Sardar P. W. 1 brother of the deceased at Police Post Peoples Colony, at 9-30 p,m. On the same day and it was recorded by Muhammad Sued, S. I,.
P. W.
7. On the basis of the said statement formal F. I. R. Exh. P. A./1 was registered at Police Station Peoples Colony by Ghulam Muhammad MASI (not produced) at 10 p.m. On the same day.
3. The motive for crime as stated in the F. I. R. Is that a month before the present occurrence wife of one Sherif Ranjah was abducted and amongst the accused persons one Sadiq, paternal uncle of Warris Masih appellant was mentioned. It is stated that the deceased was on friendly terms with this Sherif Ranjah and helped him in the prosecution of that case and on that account the appellants were annoyed with him and had threatened him of dire consequences. At the trial stage it was stated by Sardar P. W. That he was so threatened when he appeared as eyewitness in the trial of that case. But according to Malik Muhammad Khan, S. I., P. W. 8 the challan in the abduction ease was put up on the 26th March 1974, and if that be the case then the deceased could have not appeared as an eye-witness in that case since it was much after the occurrence. In any case, the trial Court has disbelieved the motive version for the reasons given in para. 14 of the judgment which are quite cogent. The motive version is not supported by any independent person except Sardar P. W. Who is brother of the deceased.
4. The prosecution has produced three eye-witnesses of the occurrence. They are Sardar P. W. 1, brother of the deceased. Yaqub Masih P. W. 2 an independent person who did not support the prosecution version at the trial stage and Rehmat Masih P. W.
3. Father-in-law of the deceased. Four other independent persons were cited as eye-witnesses of the occurrence, namely Muhammad Sherif, Muhammad Shea, Khan Masih and Payara Masih but they were given up as having been won over. Yaqub Masih P. W. Had stated in the cross- examination that he found the deceased lying dead at night, that thereafter he went to the house of Sardar P. W. And knocked at his door, and that he told him about this incident. In any case, the prosecution version is supported only by two eye-witnesses, namely, Sardar and Rahmat Masih P.
Ws. Who are closely related to the deceased.
5. The appellants were arrested on the 18th October 1973, by Malik Muhammad Khan. S. I. P. W.
8. Blood-stained clothes of Akram Meath P. 1 and P. 2 were removed from his person at the time of bis arrest and taken into possessicn vide memo Exh. P. B. Likewise bloodstained clothes of Warrls Masih P. 3 and P. 4 were got removed from his person at the time of his arrest and taken into possession vide memo Exh. P. C. Blood-stained chhuri P. 5 and blood-stained chhuri P. 6, were recovered at the instance of the appellants respectively and taken into possession vide memo. Exh.
P. D. And &h. P. E. These recoveries were made on the 18th of October 1973, and the attesting witnesses are Sardar P. W. 1, Payara Masih (not produced) and Malik Muhammad Khan, S. I. P. W.
8. The recoveries have been disbelieved by the trial Court for the reasons stated in paras. 12 and 13 of the judgment, although according to the report of the Serologist these were found to be stained with human blood. The reasons for disbelieving the recoveries given by the trial Court are quite cogent. The appellants could have not been found moving about in blood-stained clothes on the following day when they were arrested and they could have not kept the blood-stained chrris in their possession in that form after 24 hours of the occurrence. Furthermore the recoveries have been attested only by Sardar P. W. Besides the investigating officer and the only independent witness in respect of the same, namely, Payara Masih has not been produced.
6. The appellants in their statements before the trial Court denied having participated in the occurrence. They stated that they had been implicated due to enmity. They did not produce any defence.
7. Dr. Bashir Hussain Kahloon P. W. 7 conducted post-mortem examination on the dead body of the deceased at 9-00 a.m. On the 19th of October 1973, and found on his person five incised wounds on the neck, two incised wounds on the clavical, six incised wounds on the chest, seven stab wounds in the abdomen and two incised wounds on the back of elbow. According to the doctor, death occurred due to .Shock and haemorrhage as a result of neck, chest and abdomen injuries which were sufficient to cause death in the ordinary course of nature. The injuries were caused by sharp- edged weapon.
8. In the F. I. R. It is stated that some of the eye-witnesses mentioned in para. 4 were present sitting outside in the open talking to each other when Yaqub Masih P. W. Passed by them and shortly thereafter, raised an alarm that at some distance the appellants armed with chhuris were causing injuries to the deceased. On this the other P. Wa. rusLed to the spot and saw that the appellants had fallen the deceased down and were causing injuries to him with their respective weapons.
When they were challenged by the P. Wa. They ran away from the scene of crime. The deceased died on the spot. Leaving Rehmat Masih to guard the dead body, Sardar P. W. Went to lodge the report.
9. I have heard learned counsel for the appellants and perused the record. Learned counsel for the State is absent. As is evident, motive in this case as well as recoveries have been disbelieved rightly. What is left in the field is only the eye-witnesses' account of the occurrence--as given by Sardar and Rehmat Masih P. Ws. I have already pointed out above that Yaqub Masih P. W. Did not support the prosecution version. It is rather strange that if the number of the P. Ws. Mentioned- in the P. R. Is counted, it comes to seven persons and thus seven persons if they had seen the occurrence, could have not allowed the two appellante to run away from the scene of crime without chasing or apprehending them. All the independent witnesses in this case who could have supported the prosecution version if they had seen the occurrence, were either not produced or the one who was in fact produced did not support the prosecution version. The trial Court has relied on the ocular testimony of Sardar and Rehmat Masih P. Ws. Observing that although they were closely related to the deceased, they had no motive to falsely implicate the appellants. Consequently, the Sessions Judge accepted their testimony but has awarded lesser penalty to the appellants for the reason that the motive could not be established. It has been argued by learned counsel that the medical evidence indicates that the deceased was done to death while asleep as numerous Injuries had been caused to him which must have taken quite some time. Therefore, whosoever had murdered him, had sufficient time to do the job. It was further argued that there was no injury on the hands or forearms of the deceased to indicate that he attempted to ward off or resist the attack. It was, therefore, probable that the occurrence might have taken place while he was asleep, unwitnessed by any one by some unknown assailants. It was argued that it was further probable that Sardar P. W. Was subsequently informed that the deceased was lying dead and that Sardar and Rehmat Masih P. Ws. Being closely related to the deceased implicated the appellants on suspicion. There is A substance In the arguments of learned counsel. The eye-witnesses in the field are closely related to the deceased. The circumstances indicate that it was a night occurrence and whosoever did the job had sufficient time to do so. Furthermore, seven persons were named in the F. I. R. As eyewitnesses, out of which, five who are independent, have not come forward to support the prosecution version. It is reasonably probable that Sardar and Rehmat Masih P. Wa. Had implicated the appellants merely on suspicion. In any case, it is not sate to rely on their testimony which is uncorroborated, in the circumstances of the case. I am, therefore, of the considered opinion that their conviction as well as sentence were not proper and they should have been given the benefit of doubt which I hereby given to them.
' The result is that thier conviction as well as sentence are set aside and they are acquitted. Their appeal is accepted. They shall bo released from Jail forthwith if not wanted in any other case.