1. MUHAMMAD AKRAMJ.-The three appellants herein namely Nazir Ahmad, Bashir Ahmad and Ali Ahmad along with their father Khushi Muhammad were tried under section 302/34, P. P. C. For the double murder of Ghulam deceased and Wazir deceased but were acquitted by the Additional Sessions Judge, Lyallpur on the 21st of December 1967. The State went up in appeal against the acquittal of the three appellants and a Division Bench of the Lahore High Court at Lahore, in reversing the judgment of the trial Court, has convicted them under section 302/34, P. P. C. And sentenced them each to transportation for life and a fine of Rs. 3,01)0 on each of the two counts.
2. This is their direct appeal under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan, 1973 from their convictions and sentences by the High Court.
3. To begin with it shall be helpful to narrate in some detail and outline of the prosecution case as disclosed in the evidence. The incident proper took place at about 9/10 a.m. On the 3rd of April 1966 in the area of Chak No 591/GB commonly known as village Gangapur, Police Station Lundianwala, District Lyallpur. Ghulam deceased was a tenant of Sardar Rashid Ahmad Khan in Chak No. 635/GB and used to reside there with his family. Similarly, Khushi Muhammad, acquitted accused was also his tenant in the same Chak and used to reside there. In about the year 1960-61, Nazir Ahmad appellant developed illicit intimacy with Mst. Zohran, wife of Ghulam deceased and this was responsible for creating bad blood between the two families. Ghulam deceased therefore, decided to return to live in Chak No. 569/GB and settled there. About one and a half years later Khushi Muhammad and his sons also left Chak No. 635/GB and migrated to village Gangapur. In this manner the two families were separated.
4. In spite of this, Ghulam deceased seems to have entertained the grudge and on the 1st of December 1965, he allegedly gave a beating to Nazir appellant while he was on his way to school in the area of Chak No. 635/GB for which he was being prosecuted under section 308, P. P. C. This case against him was still pending in the District Court, at Lyallpur and was fixed for hearing for the 4th of April 1966, when this unfortunate incident happened.
5. It is alleged that before the date of hearing in that case, on the 2nd of April 1966, Khushi Muhammad, father of the appellants and Ghulam Ahmad Gujjar (P. W. 11) resident of Chak No. 591/GB (Gangapur) together saw Muhammad Akbar Khan (P. W. 9) resident of Chak No. 569/GB', at his arhit shop at Jaranwala and requested him to bring about a compromise between the two parties in that case. On this Mohammed Akbar Khan assured them that he would contact Ghulam deceased and bring about the desired compromise between them. It may be stated here that at the relevant time both Ghulam Ahmad and Muhammad Akbar Khan (P. Ws.) were the Chairmen of their respective Union Councils and had also their separate arhat shops in Jaranwala.
6. Accordingly, Muhammad Akbar Khan (P. W.) on his return to his own Chak No. 569/GB is stated to have summoned Alam khan (P. W. 13) resident of Chak No. 568/GB through a messenger sent for the purpose. In response to this Alam Khan (P. W.) came on bicycle to Chak No. 569/GB to see Muhammad Akbar Khan (P. W.) very early in the next morning on the aid of April 1966. But on arrival there he found that Muhammad Akbar Khan was not at his dera and had already left the village in some other connection. He was however, met by Ghulam deceased and his brother Hussain complainant (P. W. 12) who were waiting for him at his dera and they apprised him of the purpose for which he had been sent for by Muhammad Akbar Khan in order to bring about a compromise between the parties in the criminal case pending in the Court against Ghulam deceased. Soon afterwards the three left for the errand to see Ghulam (P. W. 11) in his Chak No. 591/GB (Gangapur) for bringing about the desired compromise through him with Khushi Muhammad and his sons. On the way Alam Khan P. W. Decided to call on Wazir deceased and Muhammad Ayub (P. W. 14) residents of Chak No. 8/GB and they took them along so as to form a panchayat to call on Ghulam Ahmad (P. W.) at Gangapur for bringing about the desired compromise. In Chak No 8/GB Alam Khan P. W. Left his bicycle at the Dera of Muhammad Ayub Khan (P. W.) and while Wazir deceased and Ghulam deceased both got on to the mare, their other three companions made for Gangapur on foot.
7. So all the five of them namely Ghulam deceased, Wazir deceased, Hussain complainant, Alam Khan and Muhammad Ayub Khan (P. Ws.) arrived in Chak No. 591/GB (Gangapur) on 3rd of April 1966 in the morning. According to the prosecution evidence at the trial, Ghulam deceased and Wazir deceased riding on the mare called on Ghulam Ahmad (P. W. 11) at his Dera in the village, while their three companions waited for them outside at some distance. Ghulam Ahmad P. W. Told them that the criminal case against Ghulam deceased was already fixed for hearing on the next day for the 4th of April 1966 and they should contact him again in the premises of the District Courts, Lyallpur where in the presence of the parties the compromise could be effected between them. On this they decided to return to their villages.
8. All the five namely Ghulam deceased and Wazir deceased on the back and Hussain complainant, Alam Khan and Muhammad Ayub (P. Ws) following them on foot left Gangapur. At a distance of about one square from the village abadi the four accused suddenly emerged out of a wheat field and confronted them. According to the F.
1. R. Nazir was armed with a revolver, Bashir with a toka, Ali Ahmad had a hatchet and Khushi Muhammad a lathi. Khushi Muhammad caught hold of the bridle of the mare and Nazi. Ahmad opened the fire and Wazir deceased and Ghulam deceased were dragged down from the mare. At first Bashir and Ali Ahmed inflicted toka and hatchet blows at Wazir deceased and then Nazir fired twice at him resulting in the injuries to him. On this Ghulam deceased ran for his life but Nazir, Bashir and Ali Ahmad followed and' over--took him and encircled him at a distance of about one and a half squares and the;! Then inflicted injures on him with the pistol, toka and hatchet. Thereafter, Khushi Muhammad with the mare and the other three accused with their respective weapons of offence left the place. Hussain complainant, Alam Khan and Muhammad Ayub P. Ws. Had witnessed the occurrence. They were empty-handed and did not go near to rescue their companions for fear of their own lives. After the accused had left they found that both Wazir Khan and Ghulam had died at the two respective places. Hussain complainant deputed Ayub Khan and Alam Khan (P. Ws.) to keep a watch at the two dead bodies and himself left for the Police Station Lundianwala in order to lodge the report there.
9. On arrival at the Railway Station Buchiana he learnt that the police was already present a: Chak Naroan in some other connection. He therefore, went there and made his statement (Exh. P. A.) at Chak Naroan which was recorded by Mumtaz Hussain, Head Constable at 11-45 a.m. On the basis of this statement the formal F. I. R. (Exh. P. A./ I) was afterwards recorded at the Police Station, Lundianwala, situated at a distance of 12 miles ,from the place of occurrence at 1-30 p.m.
10. After having recorded the statement of the complainant, Mumtaz Hussain, Head Constable came to the place of occurrence at 12-00 noon to start the investigation and complied with the necessary formalities at the spot. He despatched the two dead bodies under escort to the mortuary for their post-mortem examinations. He secured the blood-stained earth from the two respective places where the dead bodies of Wazir Khan and Ghulam deceased were lying murdered and sealed them into separate parcels. He also found two chaddars lying near the dead body of Wazir deceased and secured them vide memo. Exh. P. M. In addition to them, he found two more chaddars lying at a short distance from the dead body of Wazir deceased and they were also separately secured vide memo. Exh. P. L. These recoveries memos. Were attested by Amir Aslam Khan (P. W.) resident of chak No. 569/GB and Ghulam Ahmad (P. W. 11) (Member, Union Council Chak No. 591/GB). He also took into his possession the mare from the house of Khushi Muhammad accused vide memo. Exh. P. E. Which was attested by Amir Aslam Khan and Akbar Khan P. Ws. Residents of Chak No. 549/GB.
11. On the same day, Abdul Haq Bajwa, Sub-Inspector reached the spot at about 8-00 p.m. And took over charge of the investigation into the case. On the next day, on a secret information received by him, he arrested Nazir Ahmad appellant from near the Buchiana Railway Station. On his personal search he recovered the revolver (Exh. P. 1) containing two empty cartridges and one missed cartridge in its chamber and made them into a sealed parcel vide memo. Exh. P. B. At the time of his arrest Nazir accused was wearing the blood-stained shirt (Exh. P. 13) and blood-stained chaddar (Exh. P. 14). These were also got removed and taken into possession vide memo. Exh. P. C.
12. On the same day Ghulam Ahmad (P. W. 11) produced Khushi Muhammad accused and Bashir appellant before the Sub-Inspector who arrested them. Bashir led to the recovery of the blood- stained 1 toka (Exh. P. 4) from a heap of dung cakes in his house which was also made into a sealed parcel vide memo. Exh. P. D. These recovery memos. Were attested by Amir Aslam Khan and Muhammad Akbar Khan (P. Ws.) both residents of Chak No. 569/GB and Sardar Muhammad, resident of Chak No. 591/GB (not produced). Ali Ahmad accused appellant was not traceable and could not be arrested until on the 30th of April 1966.
13. On the 4th of April 1966 at 9-00 a.m. Doctor Ahmad Ghulam Muhammad (P. W.) Medical Officer, District Headquarters Hospital, Lyallpur, conducted the post-mortem examination on the dead body of Wazir deceased. In all it had 14 injuries. These consisted of one gunshot wound, two bullet wounds one of which was the entry and the other exit wounds, 10 incised wounds caused by sharp- edged weapon and two abrasions caused by blunt weapon. In the opinion of the doctor the stomach of the deceased contained semi-digested food material. The probable time that had elapsed between the injuries and death was few minutes and the probable time that had elapsed between the death and the post-mortem examination was about 23/14 hours. On the same day at 10-30 a.m. The same doctor also conducted the post-mortem examination on thedead body of Ghulam deceased. It had in all eight injuries on it. These consisted of five incised wounds and two superficial linear cuts caused by sharp-edged weapon and an abrasion caused by blunt weapon.
14. The stomach of the deceased was found to contain semi-digested food. In the opinion of the doctor the probable time that had elapsed between the injuries and death was few seconds to half a minute and between the death and the post-mortem examination was about 24/25 hours.
15. In support of its case at the trial the prosecution relied on the ocular evidence of the three eye- witnesses namely Hussain (P. W. 12), Alam Khan (P. W. 13) and Muhammad Ayub Khan (P. W. 14) corroborated by the evidence of the motive and the recoveries of the revolver and blood-stained clothes from Nazi, appellant and the blood-stained toka from Bashir appellant.
16. All the four accused pleaded not guilty to the charges. Nazir appellant admitted that Ghulam deceased wrongly suspected him for having contacted illicit relations with his wife. He also admitted that about 6/ 7 years back Ghulam deceased and his family had shifted from Chak No. 635/GB, and thereafter he and his family also migrated from that Chak to village Gangapur. He further admitted that Ghulam deceased had attacked him for which a case was registered against him under section 308, P. P. C. Which was pending at the time of the occurrence to the District Court at Lyallpur. These facts were also admitted by the other accused as well. But they professed innocence and stated that they had been falsely implicated due to enmity. They however, did not lead any evidence in defence.
17. The learned Additional Sessions Judge disbelieved the prosecution version to the effect that Khushi Muhammad accused and Ghulam Ahmad P. W. Had approached Akbar Khan P. W. At Jaranwala on the 2nd of April 1966 and that under his instructions the eye-witnesses and the two deceased had gone-to Chak No. 591/GB (Gangapur) in order to negotiate a compromise with the appellants through Ghulam Ahmad P. W. According to the trial Court Ghulam Ahmad P. W. Did not support the prosecution version to the effect that he along with Khushi Muhammad had ever gone to see Muhammad Akbar Khan (P. W.) at Jaranwala and had requested him to bring about this compromise. In that connection he merely deposed that about 15/20 days prior to the occurrence Khushi Muhammad accused had requested him for bringing about a compromise between the parties and he wanted to contact Akbar Khan P. W. But could not see him. In the Committing Court Akbar P. W. Stated that Alam Khan P. W. Came to his Dera on the 2nd of April 1966 and had stayed with him for the night. But at the trial he gave out that he came to his Dera only on the morning of the 3rd April 1966 in his absence after he had already left the village. Even otherwise there was no earthly reason and discernible anxiety on the part of Alam Khan P. W. To have left his own Chak to arrive at the Dera of Akbar Khan very early while it was still dark. Moreover, according to Akbar Khan, Alam Khan was related to Ayub Khan P. W. And Wazir Khan deceased who had cordial relations with Ghulam Ahmad P. W. He had therefore, sent for him (Alam Khan) so that he would introduce Ghulam deceased and Hussain complainant to them (Wazir Khan deceased and Muhammad Ayub (P. W.) and they in turn would prevail upon Ghulam Ahmad P. W. To intervene and bring about the desired compromise. In this connection Alam Khan (P. W.) however, gave a different version. He stated that the message sent to him by Akbar, Khan was only this much that he had to effect a compromise between Ghulam deceased and the appellants and that on his way to Gangapur, he of his own thought it proper to associate Wazir Khan deceased and Muhammad Ayub P. W. And requested them to accompany him to Gangapur. Moreover, the trial Court found it hard to believe that Ghulam deceased and Hussain P. W. Were present at the Dera of Akbar Khan when Alam Khan came there at the early hours of the morning on the day of the occurrence. There was nothing in the evidence of Akbar Khan to show that he had called them to his Dera for sending then with Alam Khan to see Ghulam Abroad for the purpose. In conclusion the Court held that the evidence led by the prosecution was not worthy of credit on this part of the case to the effect that Alam Khan, Ghulam deceased and his brother Hussain P. W. Bad started from the Dera of Akbar Khan very early w the morning of the fateful day. In the ordinary course, according to the learned Additional Sessions Judge Alam Khan and Muhammad Ayub Khan, both- - being elderly persons should have travelled by mare from Chak No. 8, but it was not understandable as to why they were made to go on foot while the mare was occupied by the two comparatively younger persons namely Ghulam and Wazir. In the opinion of the learned trial Judge there was yet another infirmity in the prosecution case. In the Committing Court the three eye-witnesses had stated that they and the two deceased persons had a meeting with Ghulam Ahmad P. W. At Gangapur for about half an hour in connection with their mission for arriving at the compromise. But Ghulam Abroad did not support this version. In his evidence before the Committing Court be deposed that only the two deceased persons namely Ghulam arid Wazir had come to him and had a talk with him for about five minutes. In the presence of this apparent contradiction, the prosecution thought it fit to make an improvement in this version and at the trial the three eye-witnesses changed their stand to depose that on arrival in Gangapur both Ghulam and wazir Khan who were riding the mare ahead of them, had gone inside the Dera of Ghulam Abroad and had a talk with him for five minutes only The trial Judge further observed that even the arrival of Ghulam and Wazir Khan at the Dera of Ghulam Abroad on the fateful morning was highly doubtful. In his opinion no reliance could be placed on the evidence of Ghulam Ahmad P. W. On the point. He admitted that he had friendly relations with Muhammad Akbar Khan and he had made this incorrect statement either under his influence or on account of his strained relations with the accused party. In conclusion the Court held that neither the three eve-witnesses nor the two deceased had gone to see Ghulam Ahmad P. W. On 3-4-1966. In dealing with the actual occurrence, the learned Additional Sessions Judge observed that the story woven by the prosecution round it was so improbable that it could not be believed. There was no evidence to show that the accused had any prior knowledge that the trio deceased would be going to village Gangapur. There was also no reason to believe that the accused could have anticipated in advance that they would pass by the wheat field in which they were lying in ambush for them.
18. Moreover, according to Alam Khan he took Wazir Khan and Ayub Chan with him partly because he apprehended danger at Gangapur because Ghulam deceased was inimical towards the accused party and therefore, in the opinion of the trial Curt, there was no reason for the five of them to have gone there unarmed. Even otherwise, according to the learned Additional Sessions Judge, there were contradictory versions given by the witnesses before the police, in the Committing Court and at the trial about the actual occurrence at the spot. In the opinion of the Court these contradictions were so glaring as to lead one to believe that the eye-witnesses had not even seen the occurrence.
19. Also, according to the trial Court the attitude of the accused and the conduct of the eye-witnesses as narrated by them was quite abnormal and strange and this conveyed the impression that they were not in fact present at the place of occurrence and had not seen it. In the absence of any independent evidence, the Court also doubted the recoveries of the revolver as well as the blood- stained clothes from Nazir accused and the blood-stained toka from Bashir Ahmad accused. In conclusion the learned Additional Sessions Judge was of the opinion that the evidence produced by the prosecution was completely false and fabricated. As such the prosecution failed to bring home the guilt to all the four accused who were therefore, acquitted.
20. In the High Court the learned State Counsel in support of his appeal argued that the ocular account of the occurrence furnished by the three eye-witnesses was fully corroborated by the evidence relating to the motive and the recoveries and that the reasons given by the trial Court for acquitting the accused were wholly artificial. He submitted that the occurrence bad taken place in broad daylight when there could be no possibility of any mistaken identity of the accused.
21. According to him Alam Khan and Muhammad Ayub (P. Ws.) bad absolutely no motive to falsely implicate them and there was no reason to discard their testimony. On the other hand, the learned counsel for the accused contended that the prosecution story was a patent concoction, the prosecution witnesses were interested and unreliable, the recoveries were bogus and there was no independent corroboration of the ocular evidence.
22. The High Court observed that Ghulam Abroad (P. W.) who was a co-villager of the accused did not fully support the prosecution version. He was declared as a hostile witness and was cross- examined by the Public Prosecutor. There were also some discrepancies and contradictions pointed out in the statements of P. Ws. With regard to certain events which had taken place before the occurrence on which reliance was placed by the trial Court in concluding that the eye- witnesses and the two deceased persons did not go to village Gangapur to see Ghulam Ahmad P.
23. W. On the day of the occurrence. But in the opinion of the High Court these discrepancies were not sufficiently material and too much importance could not be attached to them to belie the version of .The prosecution on this part of the case. In the opinion of the High Court the learned trial Judge in forming his opinion had ignored certain important and admitted facts which went a long way to show that the visit of the deceased persons and their companions to Ghulam Ahmad P. W. Was natural and probable. According to the High Court it was an admitted fact that Ghulam deceased had injured Nazir Abroad appellant and a case under section 308, P. P. C. Was registered against him. In his cross-examination Akbar Khan (P. W.) admitted that Khushi Muhammad accused had told him that he was a poor man and so was Ghulam deceased and therefore, he should arrange a compromise between them as he was unable to bear expenses of the criminal case. Even Ghulam Ahmad (P. W.) who did not fully support the prosecu--tion version and had made a number of obliging concessions in his cross-examination by the defence, stated that 15/20 days prior to the occurrence Khushi Muhammad had asked him to bring about a compromise between him and Ghulam deceased. This, in the opinion of the High Court was sufficient to show that Khushi Muhammad accused wanted to get rid of the criminal case as he was unable to bear its expenses and Ghulam deceased being an accused in that case was also deeply interested in the compromise. Admittedly, the next date of hearing in the case had been fixed for 4th of April 1966 and therefore, Ghulam deceased was naturally anxious to arrive at a compromise before it. He was a resident of Chak No. 569/GB situated at a distance of 7/8 miles from the spot and Wazir Khan belonged to Chak No. 8/GB situated at a distance of 21 miles from the place of occurrence. It was not denied that both of them ware killed in the area of village Gangapur to which the accused belonged, According to the High Court the prosecution came forward with a definite version of the purpose of their visit to the village and this version was sufficiently corroborated from the circumstances narrated above, and there was no evidence on the record to show that they had any other business at Gangapur. In that connection the. High Court observed that. a suggestion was however, put to Hussain complainant that the deceased had gone to village Gangapur to commit theft and were murdered during the dead of the night. But he repudiated the suggestion as incorrect. In the opinion of the Court there was nothing on the record to show that any of the deceased persons was ever involved or convicted in any theft case. Even otherwise this suggestion put to the witness was too vague to deserve any serious attention. As a result of this discussion the High Court concluded that the deceased persons had in fact gone to village Gangapur for negotiating a compromise through Ghulam Ahmad (P. W.) The Court observed that there was nothing unusual in Alam Khan (P. W.) visiting the dera of Akbar Khan (P. W.) in the early hours of the morning while it was still dark on the 2nd of April 1966 and the reason for it was not far to seek. Alam Khan had to go to village Gangapur situated at a distance of about 7/8 miles and had left his house early so as to reach Gangapur in time to, contact Ghulam Ahmad (P. W.) before he could leave his place. The High Court further observed that the plan of the place of occurrence showed that a private path passed by the field in which Wazir deceased was lying murdered. The deceased persons were on a mare and the eye-witnesses on foot and therefore, they could) not have adopted any pathway at their convenience. Even otherwise the eye-witnesses were not cross- examined about it as to why they had adopted the private path to furnish the necessary explanation for it. In the opinion of the High Court the prosecution was not at all bound to show as to how the accused came to know about the visit of the deceased persons to village Gangapur and that they would follow the private path along the wheat field for their return journey. The Court observed that it is in the evidence that the eye-witnesses were empty-handed and had seen the occurrence from some distance. Ghulam deceased was 'murdered at a distance of about one square from the place where Wazir was lying murdered. Before the police the eye-witness made a general statement that Nazir Ahmad, Bashir Ahmad and Ali Ahmad appellants had chased Ghulam deceased up to a distance of about one and an half squares and injured him with the pistol, hatchet and toka. In the committing Court all of them were consistent that the fire shot by Nazir Ahmad appellant had missed Ghulam deceased and their statements at the trial were also to the same effect. As the eye-witnesses were at some distance and in the confusion of the attack when Ghulam deceased was running ahead of the three appellants the eye-witnesses were not expected to observe with absolute precision whether the fire had hit Ghulam deceased or not. But in the opinion of the High Court from this discrepancy is the evidence it was difficult to conclude that the eye-witnesses were not present at the spot and had not seen the occurrence. In such a cast it was the duty of the Court to sift the evidence and arrive at the truth. The High Court did not find anything wrong in the conduct of the eye-witnesses at the time at the spotand was constrained to observe that the learned trial Judge did not fully apply his mind to all the facts and circumstances of the case and his findings were based on conjectures and surmises. In the opinion of the High Court the occurrence took place at about 9/10 a.m. And the statement of the complainant was recorded without any delay at 11-45 a.m. In Chak No. 561 (Naroan) while the formal F. I. R. Was recorded at the Police Station Lundianwala at 1-30 a.m. In case the complainant was not present at the spot as alleged by the accused it could not have been possible for him to make his statement in village. Naroan by 11-45 a.m. According to the High Court the deceased persons had gone to Ghulam Ahmad for negotiating a compromise and they must have taken some other persons along with them for the purpose, Akbar khan (P. W.) was the Chairman of the Union Council during those days and so was Ghulam Ahmad (P. W and they both had arhat shops at Jaranwala. Ghulam deceased was a tenant of Akhar Khan and in the circumstances it was understandable that the latter had deputed Alam Khan (P. W.) to approach Ghulam Ahmad in order to arrange for the compromise. Hussain complainant and Muhammad Ayub were likely to accompany the deceased persons because the former was a real brother of Ghulam deceased and the latter was a cousin of Wazir deceased. Therefore, in the opinion of the High Court the presence of the e3e-witnesses and the deceased person at the place of occurrence was probable.
24. There was also a background of enmity between Ghulam deceased and the accused but there was no bad blood between them and Wazir deceased and even though Hussain P. W. Might be nursing grouse against them, but as far as Alam Khan and Muhammad Ayub P. Ws. Were concerned, there was nothing on the record to show that they had any ill-will or malice against the accused. All the three eye-witnesses supported the prosecution versions and- corroborated each other on the main features of the case and the trial Judge was, therefore, not justified in discarding their evidence According to the High Court the evidence of the rye-witnesses was fully corroborated from the circumstantial evidence as well. Both the deceased persons were pulled down from the mare and Ghulam deceased had a scuffle with the appellants to secure his release.
25. The medical evidence showed that there was no loin clothes on any of the dead bodies. The recovery of four chaddars from the spot lent support to the view that the chaddara and the loin clothes of the two deceased persons had fallen off when they were pulled down to the ground and Ghulam deceased also struggled for his release. The Court believed the recoveries of the unlicenced revolver and blood-stained clothes from Nazir appellants and that of blood-stained toka from Bashir Ahmad accused and these lent further support to the ocular account and provided confirmatory evidence of their participation in the occurrence. These recoveries were supported by Akbar Khan and Amir Aslam P. Ws. And Abdul Ha Investigating Officer, There was nothing unusual in the conduct of Nazir-accused in keeping the revolver with him for 24 hours after the occurrence. Akbar Khan and Amir Aslam P. Ws. Were from the brotherhood of Wazir Khan deceased but had no relations with him. There was no previous enmity between Wazir Khan deceased and the accused and consequently the persons from his brotherhood and even his relatives had no motive to falsely implicate the accused. In these circumstances on an examination of the evidence, the High Court was satisfied that the findings recorded by the learned trial Judas were t wholly artificial and untenable.
26. I have largely reproduced above from the impugned judgment passed by the High Court in order to bring into focus the reasons that have weighed with it in reversing the decision by the trial Court.
27. I however, regret to find that unfortunately certain obvious and salient features of this case have altogether escaped the notice of both the Courts and I say so with respect that their judgments are based on considerations of comparatively lesser importance to the fate of this case. I would, therefore, first deal with those more important and salient features of the case, which deserve serious consideration.
28. In this case according to the prosecution version disclosed in the F. I. R. The police statements of the eye-witnesses and their evidence at the trial, at the place of occurrence the accused had picked up Wazir Khan deceased as ' the first target of their attack and had mercilessly butchered him at the spot. The post-mortem examination of his dead body shows that it had one gunshot, two bullets and nine incised wounds and two abrasions, in all 14 wounds, as compared to five incised, one abrasion and two superficial cuts found on the dead body of Ghulam deceased. It is admitted in the impugned judgment of the High Court and even otherwise it was common ground before us that the accused party had no previous enmity towards wazir Khan deceased. Rather according to the prosecution case he was a stranger to the accused. As the story goes he along with Muhammad Ayub Khan was picked up by Alam Khan (P. W.) on their way to village Gangapur as a member the party formed for bringing about compromise between the accused and Ghulam deceased. Therefore, his role was essentially that of a peace maker and friend of both the parties.
29. He had nothing to do even remotedly with their differences. Neither in the F. I. R. Nor even in the evidence any motive whatever was attributed to the accused for his murder. The first question that surpasses all comprehension is as to why and how was it that he was so mercilessly done to death at the spot. This circumstance raises considerable doubts about the prosecution version put in Court.
30. According to the prosecution this occurrence took place at 9/10 a.m. On the 3rd of April 1966 when the two deceased were done to death at the spot. The post-mortem examination, conducted on the dead bodies revealed that their stomachs contained "semi-digested food material". Alam Khan (P-. W. 13) stated that he left his own Chak No. 568/GB and arrived at the dera of Akbar Khan (P. W.) situated in Chak No. 569/GB very early in the morning while it was still dark, They then left for Gangapur when it was still dark. On the way they picked up Muhammad Ayub Khan (P. W.) and Wazir deceased from their Chak No. 8/GB and reached Ganga ur at about 8-30 or 9 a.m. In the morning. Hussain complainant (P. W) deposed that he along with his brother Ghulam deceased and Alam Khan P. W. Left Chak No. 569/GB for Gangapur at the morning prayer time when Azan had been given. According to him he had taken lasi before leaving his village. He however, did not know about the others if they too had taken anything before leaving the village. On their way to Gangapur they took along with them Muhammad Ayub Khan and Wazir deceased. They did not take anything from the house of Wazir deceased where they had just stayed for 5 or 10 minutes only. On arrival in village Gangapur they met Ghulam Ahmad P. W. At sunrise time. Muhammad Ayub Khan (P. W.), the third eye-witness of the occurrence deposed that when Alam Khan along with his two companions came to their dera in the morning of 3rd of April 1966, at time the sun was rising and they did not take anything on the way. According to him Ghulam and Wazir Khan met Ghulam Ahmad P. W. In his dera in Gangapur and remained with him for hardly one or two minutes only. It is not the case of the prosecution that after this meeting the three eye-witnesses, and the two deceased persons ha stayed on with anybody in village Gangapur and had taken any meal there. Indeed, the impression gathered from the evidence of the eye-witnesses is that they must have left the village on their return journey soon after having met Ghulam Ahmad (P. W.) without waiting any longer there. I this part of the prosecution story is to be believed, then it is difficult t explain about the presence of the semi-digested food found in the stomachs of the two deceased persons except on the hypothesis that in ail probability this occurrence at the spot did not actually take place at the time mentioned by the prosecution at 9/10 a.m. On 3-4-1966. On the other hand, in al e probability it could have happened much earlier in point of time during the preceding night about 2/3 hours after the deceased had taken their evening meals, At any rate this circumstance raises a grave doubt concerning the prosecution -version as to time of this occurrence. In this connection I am fully conscious that according to the same doctor who conducted the post- mortem examination on the two dead bodies at 9-00 a.m. And 10-50 a.m. On 4-4-1966, the time that had elapsed between these deaths and the pest mortem examination was between 23/24 and 24/25 hours. But this at least, according to medical jurisprudence, is an approximate opinion only and the assessm ent of the supposed time of death depends upon a number of factors. One of these is the coling of the dead body. In this connection according to the "Medical Jurisprudence and Texicology" by John Glaister (Tenth Edition), on page 111, under average conditions, at room temperature clothed adult body of good nutrition will have reached the temperature of the surrounding medium in about twenty to thirty hours. Environmental circum--stances exert a very important controlling effect. These include water, clothing, bedding heated atmosphere, outside exposure and seasonal variations. Indeed the discrepancies noticed above in the statements of the eye witnesses about the actual time of their arrival in village Gangapur casts a serious doubt on their integrity and fortifies me in the belief that they were not speaking the truth and perhaps they had not even seen the occurrence.
31. Moreover, according to the F. I. R. Registered at the instance of Hussain P. W. (who claims to be an eye-witness of the occurrence) Nazi accused was armed with a pistol, Bashir with a toka and Ali Ahmad had a hatchet and Khushi Muhammad (acquitted accused) had a dang. The three eye- witnesses of the occurrence also deposed to it in their evidence at the trial. But the post-mortem examination conducted on the dead body of Wazir Khan deceased, shows that it had at least one gunshot wound in addition to the two bullet wounds, nine incised wounds and two abrasions. This in itself is sufficient to show that at least one of the assailants at the time was also armed with a gun and this raises their number to five contrary to the prosecution allegations. Otherwise there is no explanation whatever forthcoming on the entire record for this gunshot wound. This sufficiently belies the prosecution case and the version given by the eye-witnesses including the complainant all of whom had in all probabilities not even seen the occurrence, The High Court did not even advert to this important aspect apparent on the face of the record.
32. I am further fortified in this conclusion from the fact that in the F. I. R. It is also alleged that after Ghulam deceased tried to escape be was pursued by the three appellants, who overtook him at a distance of about one and a half squares, they then encircled him and inflicted injuries at him wit the pistol, hatchet and the toka. But the post-mortem report of Ghulam deceased does not show that his dead body bad any fire-arm injury on it. In this connection the three eye-witnesses have made deliberate improvements in their evidence at the trial in an obvious attempt to bring it in line with the medical evidence. At the trial they deposed that while pursuing Ghulam deceased as he tried to run away, Nazir accused hail also fired a shot, which missed him. But they were confronted with their police statements to the effect that Nazir accused had also injured him with the pistol. It seems to me that all the eye-witnesses gave this deliberate twist to the evidence at the trial with little regard for truth. In this connection the High Court appears to have explained away the objection rather lightly with the remarks that in the heat of the moment the witnesses might have been confused. But their evidence cannot be looked at in isolation on the point and when read as a whole leaves much to be desired and does not inspire confidence.
33. There is yet another startling future of this case which requires serious consideration. . The recovery memos. Exhs. (P.M. And P. L.) go to show that an 3-4-1966 the blood-stained loin cloth (Exh. P. 7) of Wazir deceased and the loin cloth (Exh. P. 5) of Ghulam deceased were picked up from the spot during the course of the investigation. According to these memos. The N o join clothes had fallen off in the course of the tussel between the deceased and the accused at the spot. According to the Investigating Officer Mumtaz Hussain (P. W.) the two loin clothes (chaddars) were lying near the dead body of Wazir Khan deceased at a distance. In this manner the two dead bodies were found lying naked stripped of their loin clothes at their respective places at a distance from each other in broad daylight. But there is no mention about it either in the F. I. R. Or an evidence of the eye- witnesses. In case the eye-witnesses had seen this occurrence they could not have omitted to make a mention of this unusual; and most extraordinary scene and as to how it had at all happened. It is not easy to accept the version that the loin clothes of both the deceased persons must have fallen off when they were dragged down from the mare. But this conclusion is not supported by any legal evidence on the reword and is conjectural. This circumstance is by itself shrouded in mystery and there may be something more to it at the back. But the prosecution has failed to make a deeper probe into it in order to arrive: at the truth. It therefore, raises a doubt about the prosecution version put in Court: The cumulative effect of the above discussion lends support to the conclusion that in all probabilities the witnesses produced by the prosecution had not seen the occurrence and it was a case of the two blind murders. I' am further fortified in this conclusion by the fact that according to Hussain P. W. The complainant, after the incident, be had deputed Alam and Ayub P. Ws. To keep a watch on the two dead bodies at the spot while he himself left for the police station to lodge the report. But in this connection Ghulam P. W. Stated that he came to know about the double murder at 10/ 11 a.m. And went to the place of the occurrence. At that time he did not see Alam and Ayub there. He accordingly, deputed the Chowkidar to keep a watch on the dead bodies. This considerably militates against the evidence that the two witnesses were actually present there and bad seen the occurrence.
34. In addition to the above the prosecution story otherwise appears to be improbable and suffers from inherent fallacies. According to Muhammad', Akbar Khan P. W. On the 2nd of April 1966, Khushi Muhammad acquitted accused accompanied by Ghulam Ahmad P. W. Came to him at his arhart shop at Jaranwala for effecting a compromise between his sons and Ghulam deceased. On this the witness promised that he would "contact Ghulam deceased and would effect the compromise".
35. 1n his cross-- examination the witness reiterated that Ghulam Muhammad and Khushi Muhammad had both seen him in that connection. He was however, confronted with his statement before the police (Exh. DB) in which he had stated that only Khushi Muhammad had come to him for the purpose. He at first admitted that he did not know why Khushi Muhammad wanted to effect a compromise nor did he disclose the reasons for it to him. But in the very next breath he further stated that Khushi Muhammad had told him that he was a poor man and so was Ghulam deceased and he was unable to bear the expenses of the criminal litigation. Ghulam Ahmad P. W.
36. Was positive that he did not actually see Muhammad Akbar P. W. In that connection. According to him about 15/20 days before the occurrence Khushi Muhammad had requested him to get the compromise effected. On this although he wanted to ask Akbar Khan for it, but he could not in fact see him in that connection. In this manner the very starting point in the whole prosecution story suffers from these infirmities and contradictions in evidence of two of its witnesses. Needless to emphasize here that Muhammad Akbar Khan P. W. When confronted with his previous statement (Exh. D. B) was falsified in his deposition at the trial to the effect that Ghulam Ahmad had gone to him for the compromise. This was quite compatible with the evidence of Ghulam Ahmad that he could not set him in that connection. Although the trial Court allowed an c-2portunity to the A. P. P.
37. To cross-examine the witness, for sore undisclosed reason, but actually he was not even cross- examined in this connection. In the circumstances the High Court was not justified in discarding leis testimony and reversing the judgment of the trial Court on the point for cogent reasons.
38. Even if the statement of Muhammad Akbar Khan P. W. Is accepted that "Ghulam Ahmed P. W. And Khushi Muhammad accused had gone to him at his shop in Jaranwala for the compromise, then according to his own showing he had promised with them that he would". In the circumstances, nothing was easier for him than to have sent for Ghulam deceased who was his own tenant, on return to his Chak No. 569/GB and apprise him of the offer made to him by Khushi Muhammad.
39. According to the prosecution; both the parties were ready and willing for the compromise, which could have been clinched by Muhammad Akbar Khan P. W. Himself on his return to his village after consultation with Ghulam deceased the circumstances, there was hardly any occasion for him to have sent for Alam Khan P. W. From a different village to form a party and undertake the long journey in order to see Ghulam Ahmad P. W. In village Gangapur for negotiating the compromise through his intervention. Indeed the prosecution has failed to explain as to how and why this process in the negotiations of the compromise had to be reversed contrary to the unequivocal promise made by Muhammad Akbar Khan P. W. To the effect that he shall bring about the compromise for which there were not insurmountable difficulties in his way and why was it that afterwards he appears to have just receded in the background instead of himself playing the role entrusted to him.
40. According to Muhammad Akbar Khan (P. W. 9), for bringing about the compromise, he had sent for Alam Khan P. W. From his Chak No. 568/GB and received the message from him that he shall see him morning. The witness denied the suggestion that Alam Khan had come to him and stayed with him for the night. He was however, once again confronted with his statement made before the Committing Magistrate in which he admitted that Alam Khan had stayed with him for the night. For one thing this shows that Muhammad Akbar Khan is not a truthful witness and his statement must be accepted with caution. In this connection Alam Khan (P. W. 13) at the trial appears to have towed the line with Muhammad Akbar Khan (P. W. 9) in deposing that on the day of the occurrence he arrived at his dera in Chak No. 569/GB very early in the morning at Azan time so as to reach Gangapur at sunrise time. There does not appear to be any earthly reason assigned on this record and it seems highly improbable for Alam Khan to have left his own house situated in Chak No. 568/GB at that odd hour very very early in the morning so as to arrive at the dera of Muhammad Akbar Khan P. W. In Chak No. 569/GB before the morning Azan while it was still dark and from there go to Gangapur via Chak No. 8/GB so as to reach their destination, after having covered a distance of more than 8 miles, by sunrise as admitted by Hussain complainant (P. W. 12). Indeed Hussain complainant at the trial deposed that Alam Khan had himself come to Chak No. 569/GB and he denied the suggestion put to him it was they who had gone to his Chak No. 568/GB to fetch him.
41. But then he was confronted with his statement before the Committing Magistrate in which it is recorded that they had gone to Chak No. 568/GB and from there they had taken Alam Khan with them. All this put together reacts strongly against the prosecution case and its witnesses.
42. According to Muhammad Akbar Khan (P. W.) he had sent for Alam Khan (P. W.) from his village and received the message in reply that be shall be coming to him in the next morning on 3-4-1966. It is therefore, not understandable as to why Muhammad Akbar Khan did not keep up the appointment and had left even before his arrival in the village on the next morning. Indeed his statement on the point does not inspire confidence. When cross-examined he deposed that he did not exactly remember where be had gone when Alam Khan came to his house and that presumably he might hate gone to the Thana. The witness further deposed that as Alam Khan was related to Ayub Khan P. W. And Wazir Khan deceased therefore, he bad sent for Alam Khan for effecting the compromise.
43. According to him the two were not known to Ghulam deceased and his brother and therefore he had sent for Alam Khan to introduce them he further stated that Ayub and Wazir had cordial relations with Ghulam Ahmad and they could then take Ghulam deceased and Hussain P. W. To him for bringing about the compromise. According to the witness there was no other purpose for sending Alam Khan with them and there was no body else in the village who could do the job. But Alam Khan (P. W.) does not support him in this behalf. According to him on the way when they reached the dhari of Wazir and Ayub in Chak No. 8/GB be thought it proper to take them along with them because they were going in the form of "Mela". In this connection Muhammad Ayub P. W.
44. Stated that Ghulam Ahmad was "acquainted to him" and that be bad no influence with him. On the top of it, if Muhammad Ayub P. W. Had cordial relations with Ghulam Ahmad P. W. As stated by Akbar Khan, then it was at least expected of him to have called on him (Ghulam Ahmad) at his dera in village Gangapur instead of merely waiting outside it. It may not be out of place to mention here that Alam Khan admitted having abducted an Awan woman and was keeping her in his house without valid marriage and was prosecuted for it. He was also challaned and convicted for keeping an unlicensed arm. Admittedly, according to him he bad no special relations with Ghulam Ahmad, Chairman, although he had influence with him and was known to him previously. He further deposed that he was selected to go to Ghulam Ahmad because he was a respectable person to some extent. What a choice for this so called respectable person to be selected for this purpose and on the top of it he too did not see Ghulam Ahmad on arrival in his dera for the purpose. All these weaknesses in the prosecution case make it all the more doubtful.
45. It was admitted by Hussain and Muhammad Ayub Khan P. Ws. That there is a Government sanctioned path leading from Chak No. 8/GB to Gangapur. But they did not follow that route and were instead returning along a "Banns" (shown as a private pakdandi in the plan) by the side of the wheat field where the accused were lying in ambush and this incident took place. There is nothing on this record to show that the accused had any prior information about the visit of the complainant party in Gangapur or about the route followed by them on their return journey. But the observations made by the High Court on the point are hardly intelligible. In its opinion the prosecution was not at all bound to show how the accused had come to know about the visit of the deceased persons to village Gangapur and was under no obligation to explain how the accused party came to know that the deceased persons would adopt the private pathway for their return journey. The fact of the matter is that ail along the onus rests on the prosecution to prove its case beyond any shadow of doubt. As such it was for the prosecution to clear the doubt as to how was that the accused had way-laid the two deceased at the spot in the absence of any prior information with them about their arrival in the village and the course followed by them on their return journey.
46. There are also many a contradiction in the prosecution evidence of the witnesses about the actual occurrence and the sequence of its events. These have been highlighted by the learned Additional Sessions Judge in his judgment. In the face of those contradictions and the conduct of the eye- witnesses at the time he entertained grave doubts about the prosecution version. In respect of the actual occurrence, he observed that the first prosecution version before the police was that Khushi Muhammad caught hold of the bridle of the mare and Nazir Ahmad fired one shot and then Wazir Khan and Ghulam deceased were pulled down. They were beaten by all the four accused and Nazir had fired two shots at Wazir Khan, when he was lying on the ground. At the trial however, it was stated that the shots on Wazir Khan were fired while he was on the back of the mare. About Ghulam deceased it was stated before the police as well as the Committing Magistrate that the three accused namely Ali Ahmad, Nazir Ahmed and Bashir Ahmad had chased him and that after over taking him Nazir Ahmad came in front of him and fired a shot at him. But at the trial Nazir Ahmad was stated to have fired the shot at Ghulam deceased from behind which missed him. This contradiction, in the opinion of the trial Court was so glaring that it could easily be concluded that none of the eye-witnesses and in fact seen the occurrence. Moreover, before the police as well as in the Committing Court the version of the eye-witnesses was that they had remained stationary at one place, observed the entire occurrence from a distance and did not go near the accused because they were empty-handed, while the accused were armed with dangerous weapons.
47. According to them they had moved from the place only after all the Accused had left. They at first went to the spot where Wazir Khan was lying and found him dead and thereafter they bad gone to the place where Ghulam was lying and he too had died by the time. But this version was entirely changed at the trial and according to them when the three accused were following Ghulam deceased they had also followed them. They reached near Ghulam who was decd and then they returned to Wazir and he was also seen lying dead. However, the high Court has tried to explain away these contradictions found in the prosecution case with the remarks that the eye-witnesses were at some distance and therefore, in the confusion of the attack when Ghulam deceased was running ahead of the three appellants, they were not expected to observe with absolute precision the occurrence in its minute details. On its own analysis of the eye-witnesses, according to the High Court, there was no material discrepancy in their evidence and findings thus recorded by the trial Judge were wholly untenable. In this connection the gullible case with which the High Court has examined away the contradictions found by the trial Court in the prosecution version appears to me to be untenable.
48. Alam khan admitted in his cross-examination that on going to village Gangapur belonging to the accused he had apprehended danger. But in spite in spite of this, strangely enough, none of the five persons who undertook this journey to that village was at all armed. The eye-witnesses produced by the prosecution have come from far off distances. The case of the prosecution is that this occurrence had taken place in broad daylight at about 9/10 a.m. In a fairly inhabited place and must have been witnessed by the inhabitants yet not even a single witness of the locality was produced to depose to it, who learned trial Judge who had also the advantage of recording the evidence and watching the demeanour of the witnesses at the trial was in a better position to appraise their evidence and judge their testimony and the High Court was not justified in lightly interfering with his findings.
49. The learned Additional Sessions Judge was also not satisfied with the recoveriesparticularly the recovery of the revolver (Exh. P. 1)' containing two empty cartridges and one missed cartridge in its chamber from the possession of Nazir accused and his blood-stained shirt and chaddar which he was allegedly wearing at the time of his arrest on 4-4-1966. In the opinion of the learned trial Judge it was hardly, believable that the accused who was a literate person should have kept the revolver and was wearing the blood stained clothes even after 241 hours of the occurrence. Moreover, no independent witness has come forward to prove these recoveries. But in the opinion of the High Court the statements of the recovery witnesses were not seriously challenged in their cross- examination and they had no motive to falsely implicate the accused. In this connection the investigating Officer gave the explanation by saying that he did not cite the witnesses from the nearby decay because they were co-villagers of the accused and were not prepared to appear as prosecution witnesses. In the opinion of the High Court, the conduct of Nazir Ahmad appellant "was not in any way unnatural" in keeping the revolver with him far 24 hours after the occurrence. In this connection it is however, submitted, that the human nature as it Is, the probabilities are that the accused could not have retained the incriminating evidence of the revolver and the blood-stained clothes on is person for till these 24 hours when be had, ample time and opportunity to got rid of them in the meanwhile. The circumstance raises considerable doubt about the genuineness of the recoveries wade from Nazir appellant. At any rate after the rejection of the ocular eye-witness, these recoveries also cannot advance the For the foregoing reasons in my opinion the prosecution case suffers from infirmities and is doubtful and this appeal is bound to succeed. I therefore, accept this appeal, reverse the judgment of the High Court and restore that of the trial Court in allowing the benefit of doubt to the appellants. Their convictions and sentences are therefore, set aside, and they may be set at liberty at once if not required in any other case.