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Criminal Appeal No. 853 of 1979, decided on Ist December, 1980.

-----S. 410 read with Penal Code (XLV of 1860), S. 302-Appeal (criminal)---Murder--Evidence, appreciation of - Alleged eye-witnesses of occurrence not at all reliable and two of such four witnesses though named in F. I. R. yet not examined by prosecution-Medical evidence inconsistent with oral testimony of interested eye-witnesses-Genuineness of recovery of alleged weapons of offence extremely doubtful-Deceased allegedly way laid on road not usually followed by them but question as to how accused came to know about it, remaining unanswered-Convic tion and sentence set aside in circumstances.-[Evidence].

Rana Abdur Rahim for Appellant.

Sher Ali for the State.

Dates of hearing :16th, 17th and 22nd November, 1980.

---This judgment shall dispose of Criminal Appeal No. 853 of 1979, Criminal Appeal No. 884 of 1979 and Criminal Revision No. 978 of 1979 all arising from the judgment dated 20th January, 1979 of Additional Sessions Judge, Sheikhupura, whereby he convicted Haider (aged 25) the appellant in Criminal Appeal No. 853 of 1979 alongwith the six appellants in the other appeal, namely, Ahmed (65), Barba (40), Inayat (35). Sattar (35), Baghila (70) and Mokha (35) under sections 302 and 148, P. P. C. and sentenced each of them to life imprisonment on the first count with a fine of Rs. 2,000 and to one year R. I. on the second, while acquitting the remaining two accused, namely, Dara aged 30 and Walayat aged 45.

2. The charge against the nine accused was that they formed an unlawful assembly armed themselves with deadly weapons and in furtherance of the common object of the said assembly murdered Sahib Khan deceased aged 35 and his brother Mukhtar deceased alias Mokha aged 32 on 21st July, 1976 at about 1 p. m. at Shahkot on the road leading to the Darbar Naulakha Hazari Baba within the jurisdiction of Police Station, Mananwala in District Sheikhupura.

3. The appellants seek their acquittal while the revision petitioner, i.e., the complainant in the case seeks death penalty for the appellants and prays that the acquitted accused "be dealt with in accordance with law".

4. Ahmad and Barba appellants are brothers inter se. Similarly. Inayat and Sattar appellants are also brothers inter se arid cousins of Ahmed and Barba appellants. Baghila appellant is also a cousin of the said Ahmed and Barba appellants while Mokha appellant is a nephew of Baghila appellant. Haider appellant, who chose to file a separate appeal, is the brother of the wife of Inayat appellant. Out of the two acquitted accused Dara is a brother of Ahmed and Barba appellants and Walayat is a brother-in-law of Barba appellant, his sister being married to the said Barba.

5. The complaint was lodged in this case by Allah Ditta P. W. who happens to be the son of a sister of the two deceased. He reported the incident to the Police, according to the record, at Police Post, Shah Kot at 1-30 p. m. the same day as it took place. According to him he accompanied the two deceased on the fateful day from their village Chak No. 63JR.,B. Police Station, Khurrianwala, District Faisalabad to village Shah Kot, where they were going to find out who in that village had excess ration-cards. It may be mentioned here that Sahib Khan deceased was a depot-holder. However, when the two deceased and the complainant crossed the turning of the Darbar Road and covered a distance of about a hundred yards towards the Darbar, they were waylaid by the nine accused who were variously armed with fire-arms, spears and a hatchet. Only Data accused carried no weapon. The accused attacked only the two deceased and killed them while the complainant, a young man of 22, was not injured at all. The incident was witnessed besides him by Baja P. W. and two others, namely, Muzaffar and lkram who have not been examined as witnesses by the prosecution, After the assault, the assailants are said to have run away towards the Darbar. Dara accused only kept exhorting the other members of the unlawful assembly to finish the two deceased while Walayat accused merely, fired in the air. Haider appellant is said to have dealt more than one blow on the back of Sahib Khan deceased with his spear. Barba appellant also stabbed Sahib Khan deceased with his spear on his chest. Inayat appellant who was carrying a hatchet hit Sahib Khan deceased on his head. Mokha appellant attacked the same deceased with his spear which hit the deceased on one of his hands. As to the attack on Mukhtar deceased, it is said that Baghila appellant fired at him which hit him on his chest. Ahmed appellant also fired at Mukhtar deceased and hit him on one of his arms. Baghila and Ahmed appellants were both armed with guns. Sattar appellant was armed with a carbine .who shot Mukhtar deceased therewith, as a result of which. he sustained an injury on his head fell down.

6. Sattar appellant was allegedly arrested soon-after the incident and his carbine was recovered from his person alongwith the cartridges. His shirt which is also said to have been stained with blood was 'taken by the police off his body. About 3 weeks later a spear is alleged to have been recovered froth Mokha appellant. No other weapon was recovered from any other accused.

7. The motive alleged by the prosecution in this case is that about 14 years before the incident in question a brother of Mokha appellant, Data by name, was murdered by Sahib Khan deceased and others but those murderers were acquitted by the Sessions Court. And about a month and a quarter before the incident in question one Amir was murdered and some members of the complainant party were accused thereof but they were found innocent by the Police and released. This provided a further cause of grievance to the accused in the present case. So they attacked the two deceased and killed them.

8. It is an admitted fact that there is bad blood between the two parties and they arc involved in a chain of criminal litigation. Therefore, while the accused can be said to have had a motive to kill the deceased the complainant can be said equally to be tempted to rope in as many persons of the opposite-party in this case of double murder as, possible. The Court should, therefore, exercise great caution while scrutinizing the evidence on record to see that no innocent person is punished alongwith the guilty. It has been brought on record from the side of the defence through the cross-examination of some of the prosecution witnesses that the appellants, who are all related inter se, and the acquitted accused, who are also related to them, were not the only persons around interested in killing the deceased, as the deceased and their relatives have other enemies, too, Therefore, the first question for determination will be whether any of the appellants were at all involved in the crime in question.

9. As is evident from the facts and circumstances of this case, much depends upon the reliability of the direct evidence on record. The circumstantial evidence relating to the recovery of two of the alleged weapons of offence is too unsatisfactory to carry conviction or even to lend any meaningful support to the direct evidence. The carbine could not be connected with the crime and the spear which was found by the Serologist to be stained with human blood was recovered more than three weeks after it was allegedly used in the commission of the crime. The genuineness of the recovery is, therefore, extremely doubtful.

10. As to the eye-witness account, it may be noted that, apart from the improvements or discrepancies which characterize it, it fails to explain some very important aspects of the prosecution version. Firstly, according to the prosecution itself this was a case of ambush. All the nine accused lay in wait behind a fuel-wood stall and launched the attack as soon as the deceased came within their reach. But it was a matter of chance that the deceased happened to pass that way on their way to Shah Kot. It was not their usual beat nor was it in pursuance of their normal vocation that they were going to Shah Kot on the fateful day by that route. So the question that has not been answered by the prosecution is as to how the accused knew the programme of the deceased for that day i.e., 21st July, 1976. It would be understandable if the accused had just been visiting the place and come across the deceased on the way and attacked them at the spur of the moment. But that is not the case of the prosecution.

11. Secondly, the medical evidence on record shows that Sahib Khan deceased. was given at least ten blows with sharp-edged weapon, but in the eye-witness account only 5 of them have been mentioned. While in the witness-box the complainant attributed two spear blows on the back of Sahib Khan deceased to Haider appellant. But the medical officer who examined the deceased post-mortem found only one stab wound on the back. Similarly, no ore-arm injury was found on the head or Mukhtar deceased while according to the prosecution version he was hit on the head by a shot fired from the carbine. The prosecution did attempt to explain away this inconsistency by making such a clumsy suggestion to the medical officer, when he appeared as a witness, that the inconsistency became all too glaring and the attempt failed.

12. In short, In view of what has been stated above, it is clear that the so-called eye-witnesses are not at all reliable. And the fact that two of the four eyewitnesses named in the F. I. R. hale not been examined by the prosecution militates further against the credibility of the prosecution case. It will be a useless exercise to state and discuss the other witnesses examined in this case.

13, As for the accused, they have completely denied any Involvement in the crime in question.

14. For the reasons recorded above we find that the case against the appellants is full of sty many doubts that it is not possible to maintain their conviction and sentences on any Count. We, therefore, accept the appeals, set aside the conviction and sentences, acquit the appellants and consequently dismiss the revision petition.

Appeal allowed.

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