MUHAMMAD SADIQ Versus THE STATE

1. MUHAMMAD AKRAM, J. -On the 21st October 1 )68, the Sessions Judge, Multan, convicted, Fateh Muhammad, Allah Ditta, Khushi Muhammad and Muhammad sadiq accused and sentenced them each to transportation for life under section 302/34, P. P C. for the murder of Faiz Ahmad and hi: son Nazir Ahmad and seven years R. I. each under section 201/34, P. P. C. for causing disappearance of the evidence of the offence by putting their dead bodies on fire. Muhammad Sadiq accused filed Criminal Appeal No. 841 of 1968 against his conviction and sentences while the remaining three convicts preferred separate Criminal Appeal No. 872 of 1968 against their convictions and sentences. On the 28th of September, 1972, a learned single Judge of the Lahore High Court a! Lahore, while dealing with the two appeals issued suo motu notices to the accused (in Criminal Revision No. 466 of 1973) to show cause why their sentences under section 302/34, P. P. C. should not be enhanced. Fateh Muhammad convict died in jail during the pendency of his appeal in the High Court. A Division Bench of the Lahore High Court at Lahore disposed of the three matters by a single judgment announced on the 16th of January 1976. The Court maintained the convictions of the accused under section 302/201/34, P. P. C. but enhanced the sentences against each of them to death. In these circumstances Muhammad Sadiq convict has filed Criminal Appeal No. 20 of 1976 and Allah Ditta and Khushi Muhammad have filed Criminal Appeal No. 21 of 1976 against the judgment in this Court under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973.

2. We have heard the learned counsel for the parties in both these appeals. The three principal accused namely, Khushi Muhammad, Allah Ditta and Fateh Muhammad alias Fatta (since deceased) and Faiz Ahmad deceased and his son Nazir Ahmad deceased are related to each other. Sardara and Allah Dad were two brothers. Of these Allah Dad had died while Sardara is still alive. Allah Dad was married to Mst. Imam Bibi giving birth to Allah Ditta and Fateh Muhammad alias Fatta accused. Sardara was married to Mat. Rahmatey giving birth to Faiz Ahmad deceased. After the death of Rehmatey. Sardara contracted a second marriage with Mst. Imam Bibi, widow of his brother Allah Dad and Khushi Muhammad accused was born to her from this wed-lock. Faiz Ahmad deceased was a consanguine brother of Khushi Muhammad accused. Sadiq accused is stated to be a bosom friend of Khushi Muhammad accused and is not otherwise related to the family.

3. The incident in question took place at about mid-night during the night between the 4th arid 5th April 1967 in the dhari of Fair Ahmad deceased situated in square No. 52, Chak No. 515/EB, in the area of Police Station Borewala, District Multan. The report about it was lodged at the Police Station situated at a distance of three miles at 4-00 a. m. on the 5:h of April 1967 by Imam Din (P. W. 12) and was recorded by P. W. 14 Ghulam Muhammad A. S. I. Imam Din informant has his land situated in Square No. 53 (wrongly mentioned as Square No. 51) contiguous to the land comprised in Square No. 52. At the time he along with Mehr Din (P. W. 13) were sleeping in the bahni for cattle situated in his square. At about midnight, he heard an alarm raised by Faiz Ahmad deceased and they both rushed to his dhari On arrival there they saw thjt a lantern was on in a kacha room in the dhari of the deceased and a still was running for distillation of liquor in the light of the lantern. Allah Ditta accused had a toka in his ban d and Sadiq accused was armed with a hatchet and they both inflicted injuries on Faiz Ahmad deceased who fell to the ground because of the injuries Thereupon Allah Ditta accused inflicted further injuries at his neck. Fateh Muhammad alias Fatta had a kapa (a butcher's knife) and Khushi Muhammad accused who was empty handed was holding Nazir Ahmad deceased to the ground. Fateh Muhammad inflicted kapa injuries Et his neck and Allah Ditta gave toka blows to him. The two died at the spot as a result of the injuries inflicted on them. It is stated that the two eye-witnesses on their arrival at the spot hiked the accused to desist from murdering them. But Allah Ditta and Sadiq accused warned them to go away for the sake of their own lives. On this they went round to the back of the room and watched the incident by peeping through two big holes in the wall at the back. Allah Ditta and Sadiq got hold of the dead body of Faiz Ahmad deceased by the legs and similarly Fatta and Khushi Muhammad accused got hold of the dead body of Nazir Ahmad by the legs and dragged them to a nearby dhari sarkanda (thatched hut) They then asked Khushi Muhammad to set the dead bodies on fire. On this Khushi Muhammad accused collected khort (dried leaves of sugarcane) lying at the place and placed them on the dead bodies which were set on fire. In the meantime on seeing the fire Khan Muhammad (P. W. 11) also came there and he too saw all the four accused present near the fire. 1n the F. I. R. it is further stated that thereafter the three namely Imam Din, Mehr Din and Khan Muhammad left for the Cbak and informed Mutalli and Muhammad Khan Lambardars about the occurrence who then sent for Barkat Ali Chowkidar and deputed him with Imam Din P. W. to proceed to the Police Station to lodge the report. About the motive it is stated in the F. I. R. that the two brothers Allah Dad and Sardara owned a square of land in the village. After the death of Allah Dad his half share had devolved on his two sons namely Allah Ditta and Fateh Muhammad alias Fatta accused. Sardara owned the remaining half square of the land. Out of this Faiz Ahmad deceased who was his eldest son, took forcible possession of 61 Killas of the land and bad also turned out his brother Khushi Muhammad and father Sardara from the village. Because of this Khushi Muhammad accused bore a grudge against Fair Ahmad deceased and he, in consultation with his brothers Allah Ditta and Fateh Muhammad accused and with the help of Sadiq Bhatti, their bosom friend killed Fair Ahmad and set their two dead bodies on fire, so that they may not be able to share with him in the land.

4. After recording the F. I. R. P. W. 14 Ghulam Muhammad, A. S. I. arrived at the spot at r-00 a. m. for the investigation. After completing the necessary formalities he despatched the two dead bodies under escort to the mortuary for their post mortem examination. He removed the blood stained earth from the two places where Faiz Abroad and Nazir Ahmad were murdered in the katcha room. He also cook into his possession the lantern (Exh. P. 1) in addition to other articles found at the place. He also removed some of the bloc,-stained ashes from the places where the two dead bodies were burnt. In the course of the day he arrested all the four accused who appeared before him. He took into his possession the blood stained loin clothes from the person of Fateh Muhammad, Sadiq and Allah Ditta (Exhs. P. l I to P. 13). At the instance of Fateh Muhammad accused he recovered the blood stained kapa (Exh. P. 8) from his field from under a stack of cotton sticks. Sadiq accused led to the recovery of bloodstained hatchet (Exb. P. 9) from near a tree buried in the ground. Similarly Allah Ditta accused led to the recovery of blood-stained aoka (Exh. P. 10) froth underneath an iron box in his Kotha. All these recoveries were witnessed by P. W. 7 Muhammad Khan and P. W. 8 Mutalii. In due course these articles were made into separate parcels and according to the report submitted by the Chemical Examiner they were found to be stained with human blood.

5. The post mortem examination on the two dead bodies was carried out by P. W. 1 Doctor Mushtaq Ahmad. Medical Officer, Civil Hospital, Vehari. About the dead body of Faiz Ahmad deceased he observed that the skin and the soft tissues were burnt all over the body and that the bones of the arms acid the legs were naked. The abdomen was also burnt on the left side and the intestines were coming out of it. The dead body was found to bear in all nine incised wounds on the head, neck, shoulders, back and face, caused by sharp edged weapon. Likewise the skin and soft tissues all over the dead body of Nazir Ahmad were found to have been burnt and the bones of the arms and legs were naked and the dead body was found to bear the following injury:

6. "An incised wound 3' x 2' on the front of neck cutting trachea and the left carotid artery above the level of thyroid cartilidge. There was clotted blood present in the wound."

7. The Medical Officer in his cross-examination was unable to opine as to whether these injuries on the two dead bodies were caused during sleep or not. He, however, admitted the injury on the dead body of Nazir could be caused in sleep while the victim eras in the lying position facing towards the sky and the assailants must have been on the side of the victim.

8. P. W. 12 Imam Din and his servant P. W. 13 Mehr Din appeared as the two main eye-witnesses who deposed to the occurrence. According to Imam Din at the time they were sleeping in the bheni of his brother situated in Square No. 53 keeping a watch on his own cattle tethered there. go heard the alarm and both of them ran towards the bheni of Faiz Ahmad deceased situated in the contiguous Square No. 52 and saw the occurrence. It was elicited from him in his cross-examination that he had half share of land comprised in Square No. 15 and half share in Square No. 52 in the chak. He admitted that he had effected partition of the joint land comprised in Square No. 5.1 with his brother and the eastern half had fallen to his share. He further admitted that he had leased out his share of the land in Square No. 53 to one Amir Din who was in possession of the same at the time of the occurrence. He had no bheni of his own in Square No. 53. He further deposed that half of the other Square No. 15 was under his cultivation. According to the witness two squares intervened between his Square No. 53 and the Abadi of the Chak and that his Square No. 15 was situated at a distance of two squares from the Abadi on the opposite side.

9. P. W. 11 Khan Muhammad stated that on the eventful night, at about 1 or 2 a. m. he was going to his village from his dera. On the way he saw from a distance that the dhari of Allah Ditta accused and Sardara was on fire. He ran towards the place and met Imam Din and Mehr Din P. Ws. outside the dharL On his enquiry they told him that Allah Ditto, Sadiq. Fateh Muhammad and Khushi accused had murdered Faiz Ahmad anti Nazir deceased and put their bodies on fire The witness admitted that he did not sea any of the accused present at the time. In his cross-examination he explained that he had already purchased 7/8 seers of mats seed for sowing which was lying in the chak, and watered his land which vas ready for sowing. and that at the time, at about mid-night, he was going to the chak to fetch the seed for sowing his land, when he saw the fire from a distance.

10. From the place of occurrence, the three of them namely Imam Din, Mehr Din and Khan Mohammad P. Vas. then came to the Chak and told Mohammad Khan (P. W. 7) that the four accused bad killed Faiz Ahmad and his son Navir deceased and burnt their dead bodies. He then sent for his uncle Mutalli (g. W.) who was a Lambardar and they deputed Barkat Chowkidar with Imam Din P. W. to lodge the report about the occurrence. On arrival of the police at the spot at about 6/7 a. m. Mohammad Khan and Mutalli (P. Ws.) joined the investigation and witnessed the recoveries made by A. S. I. Ghulam Mohammad (P. W.) at the instances of the accused after their arrests.

11. The prosecution also relied on the evidence of Sadiq P. W. 10 in support of its case. He deposed that on the fateful night while coming from Burewala on foot for his village he happened to pass by the dhari of Allah Ditto accused and bad seen the four accused and the two deceased alive amoking a huqqa.

12. P. W. 6 Hameedan is the widow of Faiz Ahmad deceased and deposed to the motive for the murder of her husband. According to her Sardara .wanted to give .his half square of land to Khushi Mohammad accused to the exclusion .of Faiz Ahmad deceased. Out of this land 64 Killas was under cultivation with the deceased and the remaining 61 Killas was under cultivation with the accused. Faiz Ahmad deceased used to give maintenance to Sardara and Mst. Imam Ribi in lieu of the ? Killas under his cultivation. The witness further deposed that Sardara wanted to give the whole of his land to Khushi Muhammad accused but Faiz Ahmad was not willing for It and therefore, he was killed by the accused. She also stated that at Kuftanwela Sadiq Bhatti accused came to their house and took away Faiz deceased with him. Next morning she learnt that Faiz Abroad and Nazir bad been murdered.

13. All the four accused in their respective statements before the Committing Magistrate as well as at the trial in the Sessions Court denied the recoveries and the charges against them. Khushi Mohammad accused denied that his father Sardara wanted to give the whole of his half square of land to him to the exclusion of Faiz Ahmad deceased against his wishes. Rather he wanted to give half the land to him and half to the deceased. The accused denied that the deceased did not want to leave 6? Killas of land in his possession and that therefore, he was aggrieved against him. He pleaded that he was innocent and that Mohammad Khan P. W. had for unknown reasons got him falsely duplicated in this case. Allah Ditta accused also made a somewhat similar statement. According to him Mohammad Khan P. W. and his companions had beaten Yaqub Again and appeared as a witness against them but they were acquitted and because of this grievance he has falsely implicated him in this case. Fateh Mohammad accused also made a similar statement in Court. Sadiq Bhatti accused also denied the allegation and submitted that he has been falsely implicated. He has nothing to do with the land belonging to Sardara. Faiz Ahmad deceased had enmity with many others because he' was keeping Mst. Hameedan P. W. in his house. In the Sessions Court he stated that Mohammad Khan P. W. is the sisters husband of Imam Din P. W. He (the accused) was a candidate in the last election but Mohammad Khan got his name cancelled on the ground that his age was 23 years. On account of this enmity Imam Din and Mohammad Khan got him falsely implicated in this case.

14. In this case, in relying on the evidence of P. W. 6 Mst. Hameedan, the learned Sessions Judge observed that Sardara had two sons namely Faiz Ahmad deceased and Khushi Mohammad accused and both of them were cultivating his half square of land that he gave to them in equal shares. It was, therefore, hardly believable that he wanted to deprive Faiz Ahmad of the land. From this circumstance the trial Court held that the prosecution bad failed to prove any motive on the part of the accused for this double murder. Indeed in the opinion of the Court if at all Sardara wanted to deprive Faiz Ahmad of the land then the motive was for him to have removed Khushi Mohammad from his way and not vice versa. At any rate there was absolutely, no motive assigned for the murder of Nazir Ahmad.

15. The learned Sessions Judge repelled the contention advanced before him on behalf of the defence to the effect that the eye-witnesses account of this occurrence was belied by the medical evidence. In that connection he observed that Nazir deceased had an incised wound on the front of his neck. He was a boy of fourteen years in age and according to the eye witness Khushi Mohammad accused held him by the arms so that he could not offer any resistance and !n this state of affairs it was not at all impossible for Fateh Mohammad accused to have inflicted the kapa blow at his neck. Mehr Din stated before the police that Allah Ditta accused also gave a toka blow to Nazir Ahmad deceased at his neck but at the trial he deposed that only Fateh Mohammad gave one blow found at the neck of the deceased. In the opinion of the trial Court this descrepancy in his statements did not go to show that he did not witness the occurranace. it could be attributed to the shook suffered by the witness at the sight of the gruesome murders and in the heat of the moment he was not able to differentiate properly as to who was beating whom The Court also observed that this witness stated before the Committing Magistrate that Khushi Mohammad accused was holding the legs of Nazir deceased but at the trial he deposed that Khushi Mohammad was holding his arms. But in the opinion of the Court this was not a material discrepancy at all. The Sessions Judge repelled the contention advanced in defence to the effect that it was Impossible for the eyewitnesses after having heard the alarm raised by Faiz Ahmad deceased, to have covered the distance in arriving at the spot in time to actually see the occurrence. 1n this connection in the opinion of the Court the learned counsel for the defence failed to bring on the record and elicit from the cross-examination of witnesses the distance between their dhari and the place of occurrence. But according to the site plan, the place of occurrence would be situated at a distance of about 100 Karams only, which was by no means a sufficiently long distance for them to reach in time to actually see the injuries being inflicted on the deceased. In conclusion the trial Judge observed :hat there were no improbabilities in the evidence of the two eye-witnesses and that it could not be held that they had not seen the occurrence.

16. The trial Judge observed that there was enmity between Allah Ditta accused and Mohammad Khan P. W. Who is related to Imam fin (eyewitness). But in the opinion of the Court the evidence of Imam Din P. W. was sufficiently corroborated on the record and it could not be held that he had falsely implicated the accused because of the enmity. One Shot Mohammad Arain was beaten by Allah Ditta accused and others who were challaned under section 325, P. P. C. and Mohammad Khan P. W. appeared as a prosecution witness in the case. Even otherwise, these facts did not go to show that there was any enmity directly between Imam Din P. W. and Allah Ditta accused. Mehr Din P. W. was the servant of Imam Din P. W. and had witnessed the occurrence with him. It could not be said that he did not speak the truth just for the sake of his master. He too had no enmity with the accused. In the circumstances the Sessions Judge saw no reason to discard the testimony of the two eye-witnesses. Khan Mohammad P. W. also reached the spot Just after the occurrence and he was informed all about it by the two witnesses. He too had no enmity with any of the accused to falsely implicate them. In the light of this discussion the learned Sessions Judge found the accused guilty and convicted and sentenced them under sections 302/::01/34, P. P. C.

17. The High Court towards the end of pars. 3 of its judgment observed that the motive for this double murder was stated to be that out of the half square of land belonging to Sardara, his son Faiz Ahmad deceased hall taken forcible possession of Q acres of land and due to thin high handedness on his part, Sardara and Khushi Mohammad appellant had turned him out of the Chak. Khushi Mohammad appellant was always chaffing of this high handedness on the part of Faiz Ahmed deceased who had deprived him and his father from this piece of land and, due to this annoyance, he with the help of his other brothers Allah Ditta and Fateh Mohammad and his bosom friend Mohammad Sadiq, planned the double murder of Faiz Ahmad ant his son Nazir Ahmad, and then burnt their dead bodies in order to remove them once for ever and grab the land.

18. In this connection the High Court refused to accept the finding by the trial Court to the effect that the prosecution had failed to establish sufficient motive on the part of the accused for the double murder. The High Court observed that the F. I. R., prepared a few hours after the occurrence showed that Khushi Mohammad appellant was "on the horns of dilema" as to how to oust Faiz Ahmad deceased from his forcible possession of 6? Killas of land. The Court further observed that it was also stated in the F. I. R. that Faiz Ahmad had incurred the displeasure of his father Sardara and "was turned out by him from the village". In this connection the learned Judges of the High Court held that:

19. "We do not find any reason to doubt this version given at the earliest opportunity before the police as we find that the maker of it was an independent person who had got no personal enmity against any of the appellants and must have stated that which was made known to him either immediately or after the occurrence by the relations of the deceased or it was a fact within his knowledge as member of the same village community."

20. According to the High Court this aspect of the case on this "all important issue of motive" was not considered by the trial Court which has also failed to consider the evidence of P. W. 12 Imam Din about the motive. In conclusion the High Court was convinced that the evidence of Imam Din P. W. 12 and Mst. Hammeedan P. W. 6, fully established that Khushi Mohammad appellant was beat upon removing Faiz Ahmad deceased from his way to grab the land under possession.

21. The High Court also observed that the delay in lodging the report at the Police Station was nothing but natural in the peculiar circumstances of the case and did riot detract from its veracity. The Court remarked that this delay stood explained "in view of the unwillingness of Sardara, the father of Faiz Ahmad deceased to initiate the proceedings against Khushi Mohammad, his own son and his other uterine brothers. This reluctance on his part was quite natural as already having suffered loss of a son and a grand-son, he would not be willing to charge another son with capital crime. This reticent behaviour on the part of this old man would have entailed loss of time this is why we find a neutral person like Imam Din 1'. W. reporting the matter to the police."

22. The High Court found no cogent reason to differ with the Sessions Judge in relying on the ocular testimony of Imam Din P. W. 12 and Mehr Din P. W.

13. The Court observed that both these witnesses were in the neighbourhood at the time of the occurrence and their arrival at the scene was quite natural. In the opinion of the Court there was nothing to show that these witnesses bad any direct hostility with the appellants and therefore. it was hard to disbelieve them merely because Imam Din P. W. was related to Mohammad Khan P. W. who had sometime in the past a criminal litigation against one of the appellants.

23. According to the High Court the injuries on the deceased as stated by the eye-witnesses were fully borne out by the medical evidence which showed that they were caused by sharp edged weapons with which the accused were armed. The High Court did not attach much importance to the criticism levelled about the manner of the injuries indicted on -the deceased as stated by the witnesses. In that connection the Court observed that it was quite understandable that the witnesses who bad rushed to the place of occurrence would not be very exact in their narration because of the baste with which they arrived at the venue and the confusion caused by the assailants, by launching attack on two different persons. Moreover, the murders were committed at the dark hours of the night and what these witnesses saw was only under the light of a lantern and if they missed the details and provided the same with the assistance of their own imagination, this would not result in any reflection against their integrity.

24. The High Court also relied on the recoveries of the blood-stained respective weapons of offence at the instance of Mohammad Sadiq, Patch Mohammad and Allah Ditta accused and the blood stained loin clothes worn by them. These recoveries were witnessed by Mohammad Khan P. W. 7, Mutalli P. W. 8 arid S I. Ghulam Mohammad P. W.

14. Even if the evidence of Mohammad Khan P. W. 7 was excluded because of his alleged enmity with Allah Ditta, there was no reason to discard the remaining evidence on the point.

25. In conclusion the High Court maintained the convictions of all the four accused but enhanced the sentences against each of them from transportation for life to death under section 302/31, P. P. C.

26. On the face of it the High Court acted illegally in relying on the version about the motive contained in the F. I. R. ass the substantive piece of evidence in the case In Salim v. Bahadari P L D 1962 S C 111 this Court held that the first information report is never substantive evidence in any case. Similarly it Haji Mohammad v. State P L D 1966 Lah. 334 the High Court observed that it is accepted principle of law that the first information report is not a substantive evidence.

27. It is alleged in the F. I. R. that Sardara owned half a square of land in the Chak. Out of this his eldest son Faiz Ahmad deceased had forcibly taken possession of 6? ? Killas of land and had also turned out of the Chak his brother Khushi Mohammad accused and his father Sardara. It was therefore, that ichusbi Muhammad accused nursed a grievance against his brother Faiz Ahmad deceased and he in consultation with his two other -brothers namely Allah Ditta and Fatta and with the help of his bosom friend Sadiq accused murdered Faiz Ahmad deceased and his son Nazir Ahmad deceased and also set on fire their dead bodies so that they may not have any share in the land belonging to Sardara. In connection with the motive, Imam Din P. W. 12, the maker of the F. I. R. deposed in his examination-in-chief that Faiz Ahmad deceased and Khusbi Muhammad accused were step brothers and they owned half square of land. Two, two and a half, six months, one year or one month before the occurrence, Faiz Ahmad deceased took possession of that half square of land and that was why they were murdered by the accused. This land actually belonged to Sardara and not to The two step brothers. There is nothing in the statement of this witness in Court that Faiz Ahmad deceased bad turned out his brother Khushi Muhammad and big father from the Chak. Indeed there is absolutely no evidence in support of the allegation that Faiz Ahmad bad any time turned out his brother and parents from the Chak. The statement of Imam Din P. W., in big examination-in-chef, that two, two and a half, six months, one year or one month before the occurrence Faiz Ahmad deceased had taken possession of the half square of land is much too vague to be believed. It was admitted by Mst. Hameedan (P. W. 6) that the half square of land in fact belonged to their father Sardara and out of this he gave 6 1/2 Killas to Faiz Ahmad deceased and 61 Killas to Khushi Muhammad accused for cultivation and that in lieu of this Faiz Ahmad deceased used to give maintenance to Sardara and Mst. Imam Bibi. This clearly belies the version in the F. I. R. that Faiz Abroad deceased bad taken forcible possession of the land. Mst. Hameedan has, however, further deposed that Sardara wanted to give the whole of his land to Khushi Muhammad accused but Faiz Ahmad deceased was not agreeable to it and wag, therefore, killed by the accused.. This pact of her statement cannot be accepted as it is nowhere in the P. I. R. that Sarjara wanted to deprive Faiz Abmed deceased of the land It is alleged in the F. I. R. that Faiz Ahmad deceased had turned out Khushi Mohammad accused and his father Sardara from the Chak. But there is not even an iota of evidence in support of this allegation. In her cross-examination, P. W. 6 Mst. Hameedan merely admitted that Sardara and Khushi Muhammad accused bad leased out their lands and taken residence at Chak No. 473/6. B about twenty days before the occurrence. In my opinion the prosecution has failed to prove the alleged motive for the murder of Faiz Ahmad deceased and to establish any motive whatever for the murder of his son Nazir deceased. There is no trust-worthy evidence to prove that Sadiq accused was a bosom friend of Khushi Muhammad accused.

28. As already stated above, the High Court in disagreeing with the trial Court observed that it has come on the record from the very inception in the F. I. R. (Exh. P. A.), a document which was prepared a few hours after the commission of the crime, that Khushi Muhammad accused was "on the horns of dilemma" as to how to oust Faiz Ahmad deceased from his "forcible possession of 6? Killas of land" and that it is stated in the F. I. R. that Faiz Ahmad deceased had incurred the displeasure of his father Sardara and "was tinned out by him from the village. From these bare allegations in the F I. R the learned Judges in the High Court jumped to the conclusion and remarked that, "we do not find any reason to doubt this version given at the earliest opportunity before the police as we find that maker of it was an independent person who had no enmity against any of the appellants and must have stated that which was made known to him either immediately or after the occurrence by the relations of the deceased or it was a fast within his personal knowledge as a member of the same village community."

29. It appears to me that although the High Court regarded this as the "all important issue of motive" yet it has omitted to carefully examine the evidence of the two witnesses Mst. Hameedan P. W. 6 and Imam Din P. W. 12 on the point and has also erred in basing its findings in this' connection on the averment of the prosecution contained in the F. I. R. B and on no evidence. Rather its finding is also based on a misreading of the F. I. R. in bolding that Faiz Ahmad deceased had incurred the displeasure of his father Sardaran and was turned out by him from the village. ribs adverse finding against the accused appeals to have affected their judgment against them.

30. It was argued before us that the occurrence had taken place at about midnight while the F.

1. R. was registered after a considerable delay at 4-00 a. in. on the 5th of July 1967 at the Police Station Burewala, situated at a distance of three miles only. In this connection the High Court as already stated observed that this delay stood explained because of the unwillingness of Sardara, the father of Faiz Ahmad deceased, to initiate the proceedings against Khushi Muhammad, his own son and his other uterine brothers. According to the High Court this reticent behaviour on the part of the old man must have entailed loss of time and that was why a neutral person like Imam Din P. W. eventually reported the matter to the police. To say the least these findings by the High Court were based on conjectures and on no evidence. It is nowhere in the evidence that Sardara father of Faiz Ahmad deceased and grandfather of Nazir Ahmad deceased was at all informed of this occurrence during the night or that he was reluctant to lodge the report in the unfortunate plight in which he found himself. Indeed the only evidence brought on the record is that after having seen the occurrence Imam Din, Meter Din and Khan Mohammad P. Ws. went to the house of Mohammad Khan P. W. where Mutalli Lambardar P. W. was also called and they without informing any of the relatives of the deceased not even Mst. Hameedan widow of Faiz Ahmad deceased who was living in the same village, not far off from them, decided of their own to lodge the report at the Police Station. Therefore, this explanation for the delay in the F. I. R. was wholly untenable.

31. Now turning to the ocular evidence, it appears to me that Imam Din end Meter Din had no plausible reason for their presence in the vicinity during the night at the time of the occurrence. In this connection according to Imam Din P. W. he along with his servant Mehr Din were present in his square of land (Muraba) at about 12 mid-night when they heard the alarm and rushed to the Kotha of Faiz Ahmad deceased and saw the occurrence his cross-examination shows that he has only one-half share of land comprised in Square No. 15 and one-half share in Square No. 53 In the Chak. This Square No. 53 was jointly owned by Imam Din and his brother and they had effected partition of the land comprised in this square. so that the eastern half of Square No. 53 fell to the share of the witness. He admitted to have leased his own half share to Amir Din who was in cultivating possession of his share of this lard at the relevant time. He further admitted that he was himself in cultivating possession of the other half Square No. 15 belonging to him. It further transpires from the ceoss-examination of this witness that two squares intervene between his Square No. 53 and the Abadi and that his square No. 15 is also situate at a distance of two squares from the Abadi but on the opposite side. Now this occurrence took place in the dhari situated in Square No. 52 and the eastern side of Square No. 53 adjoins Square No. 52 according to the site plan. Admittedly, according to the witness he had no bheni of his own in his share of Square No. 53 which was already in the cultivating possession of his tenant. But according to the witness his brother had his bheni situated in his portion and at the time he (the witness) was sleeping along with his servant in the bheni of his brother where he had his cattle, four bullocks and two buffaloes tethered there during the night. The witness also stated that in those days all the cultivators had their bhenis in their fields.

32. It is thus clear from the evidence of Imam Din P. W. that at the time his own half share of land comprised in Square No. 53 was on lease with one Amir Din and that be bad no land at all under his cultivation in this square. Even he had no bheni of his own in this square. On the other band he was cultivating his half share of land comprised is Square No. 15 Admittedly, according to him in these days all the cultivators had their bakkik in their fields. In these circumstances it is not believable that during the eventful night bad his cattle, four bullocks and two buffaloes at the bheni of his brother. In fact he bad no reason to keep his cattle there for the night contrary to the usual practice of the cultivators who had their bahiks in the fields in their cultivating possession thus supplying ready manure to them. The prosecution has failed to assign any special reason for the presence of those cattle in the bhent belonging to the brother of Imam Din P. W. situated in square No. 53 at the time. It is, therefore, not believable that Imam Din P. W. along with his servant Mehr Din P. W. were sleeping in the bhent of his brother when they were awakened by the alarm raised by Faiz Ahmad deceased.

33. According to the evidence of Imam Din P. W. the bhent of his brother is situated on the western half portion of his Square No. 53. The prosecution has failed to indicate the exact location of thin bheni on the site plan (Exh. P. X), where the two eye-witnesses were allegedly sleeping at the time. But from tie description given by the witness and on reference to the plan it can be concluded that the bheni where the two eye witnesses were said to be sleeping was situated at a distance of at least four Killa (more than 220 yards) from the Kacha room in the bheni of Faiz Ahmad deceased situated is Square No. 52 from where he is said to have raised the alarm which allegedly attracted the two eye-witnesses. In this connection the F trial Court seems to have incorrectly reckond this distance as only 100 karams about (166 yards). It is doubtful if in the circumstances of this case the two eye-witnesses could have possibly heard during their sleep and were awakened by this call for help made by the deceased from the scene of occurrence from inside the Kotha situated at such a great distance.

34. Even otherwise there is sufficient intrinsic evidence in the statement of Imam Din P. W. to conclude that he had not in fact witnessed tile occurrence. In the F. I. R. lodged at his instance it is stated that on arrival at the site in the room he saw that Khushi Muhammad accused, who was empty handed. was holding Nazir Ahmad deceased lying to the ground and Fatta accused gave kapa blows on his no-,k and Allah Ditta also gave toka blows. It is also stated in the F. I. R. that after Faiz Ahmad and Nazir Ahmad had died at the spot because of the injuries, the accused then caught hold of the dead bodies from their legs and dragged them to the dhari sarkanda (thatched hut) where they were set on fire. It is further stated in the F. I. R. that after the dead bodies had been put on fire Khan Muhammad P. W. 11 also arrived at the spot and saw the four accused standing near the fire.

35. But contrary to this Imam Din P. W. 12 in his evidence at the trial deposed that he saw that Fatta and Khushi accused were belabouring Nadir deceased. In this way that Khushi was holding the arms of Nadir and Fateh Muhammad was giving "blows" with kapa. In his cross-examination the witness explained that when he and Meter Din P. W. entered the room they saw that Faiz Ahmad was "standing" and was receiving the injuries. Nazir Ahmad was also standing and was beaten in their presence. He received only one injury in their Presence. The witness also deposed that after the two had expired at the spot. Faiz Ahmad deceased was "lifted" by Allah Ditta and Sadiq accused and Nazir Ahmad deceased wag "lifted" by Khushi Muhammad and Fateh Muhammad accused and they tools them to the Jhugi where the dead bodies were put on fire. The witness stated that after the dead bodies were put on fire Khan Mohammad P. W. pissed from there and they told him about the occurrence. but he did not depose that he also saw the four accused standing near the fire at the time. In my opinion this was a deliberate omission on his part because Khan Mohammad P. W. 11 in his examination-in-chief had already appeared in the witness b..)x to state that on arrival at the spot he did not see any of the accused present there.

36. From the above it would appear that the version of the occurrence contained in the F.

1. R. recorded at the instance of Imam Din P. W. as that given by him while appearing as a witness at the trial in Court are contradictory and inconsistent with each other in material particulars In giving the details of the gruesome murders, in the F.

1. R. according to him three accused had participated in disposing of Nazir deceased while Khushi Muhammad accused held him down flat on the ground and Patta accused slaughtered him by giving kapa blows at his neck and Allah Ditta accused also inflicted blows on him with his toka. But the witness in his testimony in Court deposed that Fatta accused gave blows with his kapa at Nazir and contrary to the recitals in the F. I. R. he did not implicate Allah Ditta accused as having also inflicted blows at the deceased with his toka. According to the medical evidence Nazir deceased had only one incised wound 3' x 2' on the front of his neck cutting trachea and the left carotid artery above the level of thyroid cartilage. In this connection Dr. Mushtaq Ahmad (P. W. 1) who performed the post-mortem examination on the dead body of the deceased, stated in his cross-examination that the injury on Nazir could be caused in sleep, while the victim was in lying position facing towards the sky. But it is note worthy that contrary to the F. I. R. and medical evidence, Imam Din P. W. in the witness-hex stated that while Nazir Ahmad deceased was standing. Khushi Muhammad accused held his arms and Fateh Mohammad accused gave kapa blows at him. As already mentioned above, in the F. I. R. Imam Din stated that after the two victims had died at the spot, Allah Ditta and Sadiq accused caught hold of the dead body of Faiz Ahmad deceased. and Fatta and Khushi Mohammad accused caught hold the dead body of Nazir deceased, by their legs and dragged them to the nearby dhari where they were put on fire. But in his testimony inn -Court the witness modified his statement obviously in a deliberate attempt to reconcile it with the medical evidence which did not show any signs of dragging on the dead bodies) arid deposed that the dead body of Faiz Ahmad deceased was lifted by Allah Ditta and Sadiq accused and that' of Nazir deceased was lifted by Khushi Mohammad and Fatta accused and they took them to nearby jhuggi where these were put on fire. Also as stated above according to the F. I. R. while the fire was burning Khan Mohammad P. W. also appeared at the spot and also saw all the four accused namely Allah Ditta, Sadiq. Fatta and Khushi Mohammad at the dhari near it. But in his evidence in Court Imam Din P. W. merely deposed that Khan Mohammed 11. W. also passed from them and he just informed him about the occurrence. Khan Mohammad P. W. 11 in his examination-in-chief categorically denied having seen any of the accused there at the time.

37. These are some of the glaring discrepancies and material contradictions in the narration of the same incident by Imam Din P. W. recorded in the F. I. R. at his instance and in Court at the trial in the course of his evidence. The two Courts have even failed to carefully notice some of the glaring discrepancies. It is by no means easy to reconcile these discrepancies as the two Courts would have us believe on the hypothesis that the two witnesses had come rushing to the spot and in that baste. confusion and shock they were bewildered and that it might nest have been possible in that state of affairs for them to be very accurate in their narration of the occurrence and that the murders were committed during the dark hours of the night and the witnesses had seen the occurrence under the light of the lantern and might have missed the details. In this connection the trial Court further observed that Mehr Din P. W. stated before the Committing Magistrate that Khushi Muhammad accused was holding the legs of Nazir deceased but at the trial he stated he was holding the are of the deceased. In the opinion of the trial Court this discrepancy was immaterial and could be reconciled if the arms of Nazir deceased were held when they were "hanging and close to the legs" and it could be then said that the arms and legs were held together. But with due deference to the two Courts it is not so easy to explain away all those contradictions and discrepancies on these hypothesis and mere conjectures. In this connection, in my opinion the two Courts have laboured in vain in their attempts at reconciliation of the contradictions and discrepancies in the evidence. They have also failed to advert to some of the facts mentioned above. I am, therefore, not impressed by the testimony of P. W. Imam Din. He does not appear to be a truthful witness who could be safely relied upon and in whom confidence could be reposed. In all probability he was not present at the spot to have seen the occurrence for himself. For had he done so he would not have so badly contradicted himself on at least the broad features of the case, leaving aside the minor details. I cannot shed the impression formed by me that P. W. Imam Din has in his testimony in Court made a calculated and deliberate attempt in improving upon hi version in the F. I. R. in bringing it in line with the medical evidence and other evidence on the record, without any regard for the truth.

38. Imam Din P. W. admitted that Mohammad Hanif son of Shah Mohammad was his son-in-law but professed that ha did not remember if the said Shah: Mohammad was an co-accused with Mohammad Khan P. W. 7 and others in the case in which one Mohammad Yaqoob was beaten. He is admittedly the husband of a sister of Mohammad Khan P. W. who in turn admitted that he along with others bad allegedly beaten Yaqoob Arain. He was challaned in that case and that Allah Ditta accused had appeared as a prosecution witness against him. Also one Sher Mohammad Arain was beaten by Allah Ditta accused and others and in that case under section 325, P. P. C. Mohammad Khan P. W. appeared as prosecution witness against the accused. This would at least show and it is reasonable to infer that there were these party factions in which the relatives of the complainant including Mohammad Khan P. W. were arrayed on one side and Allah Ditta accused on the other. As such and because of his affiliations the two Courts were riot justified ire putting absolute faith in the testimony of Imam Din P. W. as a wholly independent witness, instead of having critically examined his evidence and made a more cautious approach to it, warranted under the circumstances.

39. Mehr Din P. W. was only a servant of Imam Din. He had no independent status and bad no reason of his own to be present at the place of occurrence at the time. His evidence is nothing better than his master's voice. He made a baiting and contradictory statement in his cross-examination when asked if the accused were present at the spot when his statement was recorded by the police in the morning. His statement is also marred by the contradictions with his previous statements recorded by the Committing Magistrate and the police. He admitted in his statement before the Committing Magistrate that he was keeping his family in the ahata of Mohammad Khan P. W. brother-in-law of Imam Din. To me the witness appears to be unworthy of credit, but the two Courts did not even advert to these facts and circumstances apparent from his evidence. It stems probable that both these prosecution witnesses had not actually seen this occurrence and that it was an unwitnessed occurrence.

40. It appears that both the trial Court as well its the High Court have disposed of the evidence of the two eye-witnesses without having examined the same fully and in greater detail. In this connection it was argued before the trial Court that their statements were belied by the medical evidence having regard to the number and location of injuries found on the two dead bodies. But the Court repelled the contention with the observation that these discrepancies did not show that the witness did not see the occurrence. According to the trial Court when one sees such high-handedness and that too at night and particularly when he is threatened with dire consequences, he becomes so bewildered that he might not have understood as to who was beating whom. In disposing of this objection the High Court merely observed that the injuries on the deceased as stated by the eye-witnesses were "fully borne out by the medical evidence" as having been caused by sharp-edged weapon such as toka, hatchet and kapa. In this connection the Court further observed that the criticism about the manner of the injuries inflicted by the appellants as stated by the witnesses was not of much significance and that it was quite understandable that witnesses who had rushed to spot would not be very accurate in their narration under the confusion and heat of the moment during the dark hours of the night. This was to say the least, nothing but a cursory disposal of evidence. Moreover as already discussed above, the tyro Courts did not even notice some of other aspects of the case.

41. The prosecution, in an attempt to provide another link in the chain with a view to fully inculpate the accused. also produced P. W. 10 Sadiq in .corroboration of the ocular evidence. He is a resident of Chak No. 513/E. S. and deposed that on the eventful night he was returning on foot to his -village from Burewala where he had gone to recover some money due to his brother from a Commission Agent. On the way he happened to pass by the dhari in question. In there he saw a lamp and the four accused along with the two deceased smoking huqqa. He sat there for a while and then left the place. The witness was however, confronted with his statement (Exh. D. A,) recorded by the police on the following morning after the occurrence and denied that at the time he wrongly gave his residence as in Chak No. 515. In his cross-examination the witness reiterated that he had gone to Burewala for recovering some money from a Commission Agent there. But then he was again confronted with his statement recorded by the police wherein he had stated that he had gone to make purchases. He did not state before the police that all the four accused and the two deceased were present at the dhari in question and according to him only two of the accused, namely Fateh Mohammad and Allah Ditta were present at the time in the Kotha smoking the huqqa. He behaved like a tutored witness who made the improvements in Court, without least regard for the truth, by deposing that at the time he had seen the four accused and the deceased at the place of occurrence. The two Courts did not even advert to the testimony of this witness and altogether discarded the sane. But this connection I cannot help to observe that this was evidently an unseemly attempt at padding in which the prosecution appears to have indulged.

42. As already discussed above, according to the F. I. R. Khan Muhammad (P. W. 11) on arrival at the spot bad also seen the four accused standing near the fire at the dhari where the two dead bodies were burnt. But Imam Din P. W. did not substantiate this part of the F. I. R. in his testimony in Court. Khan Muhammad P. W. also unequivocally admitted that he did not see any of the accused present there. According to him at the time at about 1 or 2 a. m. during the night he was going to the village from his dera. He saw the dhari in question on fire from a distance. He, therefore, rushed towards the place and found Imam Din and Mehr Din P. Ws. only at the place. On enquiry they told him that the four accused bad murdered Faiz Ahmad and Naair Ahmad deceased and put their dead bodies on fire. From there he along with the two eye-witnesses went to the dera of Muhammad Khan P. W. who sent for Mutalli Larnbardar (P. W). They then deputed Barkat Ali Chowkidar with Imam Din P. W. to proceed to the Police Station, Burewala to lodge the report at 4-00 a. m. in the morning of the 5th of July 1967. In his cross-examination Khan Mohammad (P. W.) explained that at the time he was going to his village at about 1 or 2 a. m. in order to fetch maize seed for sowing and ? that for the purpose had already watered his land which was ready for sowing. Possibly this sowing of the seed could be done only after the day-break and not during the dead of the night in the darkness. As such there was no pressing reason for the witness for going to the village to fetch the maize seed at mid-night. In the circumstances, this explanation. furnished by the witness for his presence at the time at the spot on his way to the M village, appears to be rather far-fetched and untenable. As such even his presence at the time appears to be doubtful and its benefit must be resolved to favour of the accused.

43. The prosecution case is that after the occurrence Imam Din, Mehr Din and Khan Mohammad P. Ws. left the place and came to the house of Mohammad Khan P. W. In the Chak at midnight to inform him about the double murder at the hands of the accused. He then sent for Mutalli P. W. at his dera. In there they decided to lodge the report at the police station and deputed Barkat Chowkidar with Imam Din P. W. for the purpose. It is indeed curious that the report was thus lodged after deliberations between the witnesses, without even informing the relatives of the deceased about the occurrence and taking them into confidence. In this connection the High Court erred in observing that Sardara, father of Faiz Ahmad deceased and grand-father of Nazir Ahmad deceased was reluctant in lodging any report against his ether son Khushi Mohammad accused. But there is barely any evidence on the record to show that these witnesses had at any time informed him about the two unfortunate murders. `These observations by the High Court are based or conjectures and surmises. It was admitted by Imam Din P. W. that he did not inform Mst. Hameedan widow of Faiz Ahmad deceased about the occurrence. Although his house was situated at a distance of 1 ? or 2 Killas from the house of `Mohammad Khan P. W. as was admitted by him. She only learnt about it afterwards in the morning. Then is no explanation for this willful failure and callous disregard on the part of all those who had gathered at the dera of Khan Muhammad P. W. to apprise the near relatives of the deceased about this tragedy that had thus befallen them. As already discussed above there were party factions between the relatives of Imam Din complainant including Khan Muhammad P. W. on tine one hand and the accused on the other. Mutalli (P. W. 8) is the uncle of Khan Muhammad (P. W. 11). He admitted that Khan Mohammad had unsuccessfully brought a suit for restitution of conjugal rights against his wife in which Allah Ditta and Sadq accused had appeared as witnesses against him. All the four witnesses appear to have made it a common cause in making the report at the police station through the complainant after deliberations about this double murder without even informing the near ones of the deceased about it. There appears to be a hush about the manner in which the four witnesses proceeded in reporting this matter to the police. The two of them namely Mutalli and Muhammad Khan P. Ws. joined the investigation and also acted as the recovery witnesses on the next morning. It may be that one of them was the Lambardar and the other bad joined as the Sarbarah Lambardar of the of the village. According to the statements of Allah Ditta, Khushi Mohammed and Fateh Mohammad accused in the two Courts they have been falsely implicated in this case at the instance of Mohammad Khan P. W. on account of the enmity.

44. Although Khushi Mohammad accused was stated to be the villain for whose sake the two ghastly murders were committed, yet he was assigned a comparatively less atrocious part in the whole drama. He was empty handed and no recoveries were at all made from him-not even of any of the clothes worn by him at the time, unlike the other co-accused from whom the blood-stained loin-clothes worn by them were taken into possession. In case he :red played the part assigned to him, it cannot be imagined that his wearing clothes did not receive any stains of blood on them in the process- This circumstance renders his participation further doubtful and in turn renders the entire prosecution case all the snore doubtful.

45. Moreover in this connection as already stated above, there is no reliable evidence to establish that Sadiq accused is a bosom friend of Khushi Mohammad and had participated in these murders at his behest. Otherwise he had nothing to do with the disputed land or the allegedly sordid affairs of the family of Sardara. According to Mst. Hameedan P. W. he was last seen with Faiz Ahmad deceased when he left the house at night in company, with him. But this evidence by itself is not sufficient to bring home the guilt to him.

46. I find that according to F. C. Siraj Din (P. W. z), Sadiq and Fateh Mohammad accused were present at the place of occurrence when he reached there in the morning. Mehr Din P. W. also admitted that Sadiq, Khushi Mohammad and Fatta accused were present there at about 7-00 a.m. after the arrival of the police. But they were not arrested until about noon-time.

47. In arriving at my conclusions I am conscious that Ordinarily this Court does not interfere with the findings of fact recorded by the High Court provided they are not otherwise found to be vitiated. In this case, .however, as already discussed above, the High Court has not only misread the record but has also based its findings on the averment in the F. I. R. also on conjectures and surmises and on no evidence. It Las failed to critically discuss the evidence of the witnesses connected with the incident and its disposal of the evidence was cursory.

48. On the above finding that these were unwitnessed murders, the evidence of Mst. Hameedan of having last seen Faiz Abroad deceased with Sadiq accused is not by itself sufficient to record the conviction against arm. g Nor are the alleged recoveries of the incriminating articles at the instance of the accused alone sufficient to find them guilty beyond reasonable doubt.

49. In conclusion, as a result of the above discussion, I would accept these two appeals, set aside the convictions and sentences of Khushi Muhammad, Allah Ditta and Sadiq appellants. They are allowed the benefit of doubt and are acquitted. They may be set at liberty at once, if not otherwise required in any other case.

50. ANWARUL HAQ,J--I agree.

51. DORAB PATEL, J.-I agree.

52. S. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.