SAEEDUR RAHMAN, J.---The appellant Ghulam Rasul (aged, 70 years; was convicted by a learned Sessions Judge at Multan of an offence under section 302 of the Pakistan Penal Code for causing the death of Anwarul Haq deceased. For this offence he was sentenced to death and also asked to pay a fine, of Rs. 2,000 in default of payment of fine he was directed to suffer rigorous imprisonment for a period of one year. Seventeen other persons, namely, Muhammad Amin, Allah Wasaya, Farida, Ghulam Rasool son of Hayat Noor Ahmad, Yasin, Karim Bakhsh, Muhammad Shafi, Allah Bakhsh, Muhammad Bakhsh alias Mammi, Fazal Ahmad, Charagh, Ghulam Sarwar, Bashir Ahmad Shabbir alias Shamira, Muhammad Nawaz and Abdul Rehman were also tried together with the appellant but they were acquitted The appellant has preferred this appeal against his conviction and sentence and the learned Additional Sessions Judge has also made a reference to this Court under section 374 of the Code of Criminal Procedure for the confirm--ation of the sentence of death imposed upon him. This judgment will despose of both these matters.
2. The case of the prosecution was that on 16-7-72 at about 12 noon, Allah Nawaz Khan (P. W. 2) a practising Advocate of Multan, accompanied by Shahid Ahmad Khan (P. W. 3), Khalid Sherazi (P. W.
4), one Malik Nasir Abroad and Anwarul Hag deceased went on a pleasure trip to the bank of river Chenab in the area of mauza Arjwain Sharif within the jurisdiction of Police Station, Mumtazabad.
After half-an hour of joy-ride on the boat of one Yasin boatman, when they were going to disembark at the ferry, the appellant together with seventeen other persons named above, some of them armed with sticks, arrived there. They raised lalkara that none should be spared. The appellant and six of the acquitted co-accused namely, Yasin, Karim Bakhsh, Farida, Ghulam Sarwar, Allah Wasaya and Noor Ahmad who were all empty handed, entered the river and started pushing the boat into the deep water. Apprehending danger, Allah Nawaz Khan (P. W. 2) and his companions jumped out of the boat and ran towards the bank. The appellant and six of the acquitted co-accused named above, caught hold of the deceased and pushed him into the deep water who was swept away by a the waves. The rest of the acquitted co-accused started beating Allah Nawaz Khan (P. W. 2) and his other companions. Allah Nawaz Khan (P. W. 2) brought out his revolver from the diggi of his scooter and fired 3 shots in the air, which made the assailants run away. As a motive, it was alleged that all the assailants were the tenants and partymen of one Saad Ullah Khan who together with the appellant had enmity with Allah Nawaz.
3. Allah Nawaz Khan (P. W. 2) presented a written complaint (Exh. P. B.) to S. 1. Muhammad Abdul Latif (P. W. 9), the S H. O. Of Police Station Mumtazabad, which was eight miles away from the place of occurrence, and on its basis F.1. R. Exh. P. B./I was registered on the same day at 1.30 p.m, The Sub-Inspector investigated the case. He continued search for the dead body and ultimately on 20- 7-1972 found it from the bed of the river near the bhaini of one Allah Bakhsh Baloch in the area of District Muzaffargarh.
4. Dr. Muhammad Aftab Iqbal who was, at the relevant time, the Medical Officer, Civil Hospital, Multan on 21-7-1972 at 11-30 a.m. Performed the post-mortem examination of the deceased. As the doctor was not available at the trial, the post-mortem report. (Exh. P. K.) was proved by Khadim .
Hussain (P. W. 11) who had worked with him as a compounder and could identify his handwriting and-signatures. According to the postmortem report (Exhs. P. K.), the doctor found the dead body in an advanced stage of decom--position. He found an abrasion 2" x 1" on the right side of the head 2--" above the right ear. As to the cause of death, he opined that it was due to asphxia on account of drowning. He further opined that the death had occurred soon after drowning and the time lag between death and post--mortem was about six days.
5. Dr. Sayed Altaf Hussain Gardezi (P. W. 7) on 16-2-1972 examined Allah Nawaz Khan (P. W. 2), Khalid Sherazi (P. W. 4) and Nasir Ahmad and found some minor abrasions and contusions on them which were all simple in nature.
6. The appellant pleaded not guilty to the charge an denied the allegations against him. He attributed false implication due to enmity. He alleged that Allah Nawaz Khan (P. W. 2) had asked Allah Wasaya, the acquitted co-accused, to take his friends for a joy-ride, lout as his boat was already loaded with passengers and camels he did not agree. Allah Nawaz Khan (P. W. 2) insisted upon having the boat vacated which led to an altercation when Allah Nawaz Khan (P. W. 2) started firing which scared the camels on board, resulting in the capsize of the boat. Later on, he learnt that one of the companions of Allah Nawaz Khan (P. W. 2) was missing. He led no evidence in defence.
7. The case of prosecution rests entirely on the ocular account provided by Allah Nawaz Khan (P. W.
2), Shahid Ahmad Khan (P. W. 3) and Khalid Sherazi (P. W. 4). Malik Nasir Ahmed and Yasin boatman also cited in the F. I. R. As eye-witnesses were given up by the prosecution as having been won over. Allah Nawaz Khan (P. W. 2), admittedly bad strained relations with the appellant who was his tenant. He ejected him from the land two years before the occurrence. He also got registered some criminal cases against him and his sons which were found to be false and cancelled. Thus his enmity with the appellant stands established. He had made deliberate improvements at the trial. He stated at the trial that the appellant snatched an oar from Yasin the boatman, and struck it on the head of the deceased which resulted in his drowning. But he admitted that he did not mention this fact in the F.
1. R. He has introduced the story about the hitting of the deceased, obviously with a view to bring his statement in con--formity with the medical evidence. He has deliberately attributed a specific role to the appellant whereas he made no such allegations in the F. I. R. According to the F. I. R. His position was that seven of the assilants drowned the deceased but at the trial he tried to single out the appellant without giving any reason. Therefore, for the reasons stated above, we cannot place any credit on this witness.
8. The testimony of the other two eye-witnesses does not advance the prosecution case. Shahid Ahmad Khan (P. W. 3) was only a visitor from Hyderabad. He did not know the assilants. He learnt their names from Allah Nawaz Khan (P. W. 2). It is rather strange that he would remember the name of the appellant and also be able to identify him in Court while he could neither remember the names of the other seventeen nor identify them, particularly when there was no specific or special role attributed to him. Thus, it is hard to believe that he would be able to remember his name or identify him after five years. The position of Khalid Sherazi (P. W. 4) in this regard is no Letter. The appellant and ten of the acquitted co-accused challenge identification by these witnesses. S. I.
Muhammad Abdul Latif (P. W. 9) admitted that he had received orders from the Illaqa Magistrate for arranging an identification parade, but as he could not procure the attendance of the witnesses, no identification parade was held. In the circumstances, an inference can justifiably be drawn that the witnesses would not have been able to identify the appellant, if identification parade was held. The testimony of these witnesses also suffers from the same improvement and it is not possible for us to place any reliance upon it either.
9. The learned Additional Sessions Judge has also not accepted the ocular account in respect of the seventeen co-accused. In the case of Muhammad and another v. Crown (PLD 1954 FC R4) their Lordships of the Supreme Court have laid down that "where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remining accused in the case of that offence in the absence of any confirmatory circumstance". The case of the appellant is not distinguishable and we do not find any confirmatory circumstance connecting the appellant with the commission of the crime.
10. Thus, it is not possible for us to maintain the conviction and the sentence of the appellant as recorded by the learned Additional Sessions Judge. Accordingly we accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in any other case. The sentence of death is not confirmed.