MUHAMMAD AKRAM Versus THE STATE

AFRASIAB KHAN, J .--The appellants, Muhammad Ashraf, son of Inayat ali, aged 19 years, Muhammad Rafique, son of Chiragh Din, aged 18 years, Muhammad Akram son of Chiragh Din, aged 39 years, and Muhammad Nazir son of Nabi Bakhsh, aged 19 years, were convicted under section 302/149, P.P.C. for the murder of Ghulam Rasul alias Kaku, aged 19 years, and were sentenced to death and a fine of Rs.5,000 each and in default thereof to undergo one year's rigorous imprisonment, by the learned Additional Sessions Judge, Sialkot, vide his judgment dated 23-9-1984. They were further convicted and sentenced to two years' rigorous imprisonment each under section 148, P.P.C. It was ordered that if the fine was recovered, half of the same shall be paid to the heirs of the deceased. However, the learned trial Court acquitted Farman Ali co-accused by giving him the benefit of doubt vide the same judgment. The appellants have come up before us in appeals against their conviction and sentence. The case is also before us under section 374, Cr.P.C. for confirmation of the sentence of death awarded to the appellants. This judgment will dispose of both the Criminal Appeals (Cr.A. No. 572/84 filed by Muhammad Akram and Muhammad Nazir and Cr.A. No. 21-J/84 filed through Jail by Muhammad Ashraf and Muhammad Rafique appellants) and the Murder Reference together.

2. Briefly, the facts of the prosecution case as narrated by Allah Ditta (P.W. 4) in his statement (Exh.P.A.) are that two months before the occurrence, i.e. 16-4-1982, there was a quarrel between Ghulam Rasul alias Kaku deceased, son of the complainant, and Muhammad Rafique, one of the appellants in which the deceased felled appellant Muhammad Rafique on the ground and as a result thereof Muhammad Rafique appellant got an injury on his arm. The complainant submitted that he tendered an apology to the father of Muhammad Rafique appellant as well as to his relatives. This dispute was patched up on the intervention of Muhammad Hussain, son of Sain, and Saleem son of Suba, residents of village Fatehgarh District Sialkot. However. Muhammad Rafique appellant nourished a grudge and used to say that he will definitely take revenge from the deceased Ghulam Rasul alias Kaku. The complainant stated that marriage party of his nephew Munir, son of Muhammad Sadiq, had to come in the house of Nazir son of Kaka from Sialkot city and in this connection the complainant wanted to serve the members of the marriage party with cold drink. In order to bring bottles of aerated water, on 16-4-1982 at 4-00 p.m., the deceased Ghulam Rasul alias Kaku and Abdul Latif (P.W. 7) went on their bicycles to Kallowal-Marala Road, but as their return was delayed. therefore, the complainant Allah Ditta (P.W. 4) and Muhammad Ismail (P.W. 6) at about 5-30 p.m. went to enquire about them. When they reached near the tubewell of Hafiz Nasir Ahmad, they saw that the acquitted co-accused Farman Ali, son of Nizam Din, was standing at the dera of Bashir. In the meantime both sons of the complainant, namely, Abdul Latif (P.W. 7) and Ghulam Rasul alias Kaku deceased came there carrying crates of bottles on bicycles. Farman Ali acquitted co-accused seeing them, shouted that Kaku has come and he should be caught. Thereafter, from a nearby wheat crop field, the appellants Muhammad Rafique armed with Khanjar, Muhammad Akram armed with Sua, Muhammad Ashraf alias Gunga armed with Chhuri and brother-in-law of Muhammad Akram, namely, Billa armed with Chhuri emerged and encircled Ghulam Rasul alias Kaku deceased on the road. The appellant Muhammad Rafique opened the attack and caused a Khanjar blow on the left side of the head of deceased Ghulam Rasul. On the receipt of the injury the deceased fell down from the bicycle. Second blow with Chhuri was caused by appellant Muhammad Ashraf alias Gunga on the back side of the head of the deceased. Appellant Muhammad Akram caused Sua blows on the mouth of the deceased. Billa accused also caused Chhuri blows on the head of the deceased. It is stated by the complainant that all the appellants further caused blows on the head and face of the deceased with their respective weapons. The occurrence besides the complainant Allah Ditta (P.W. 4), was witnessed by Muhammad Ismail (P.W. 6), a cousin, Abdul Latif (P.W. 7) son of the complainant, and Ch. Barkat Ali (not produced). The witnesses raised a hue and cry whereupon the assailants ran away towards village Lalewali. It is disclosed by the complainant that Abdul Latif and Muhammad Ismail P.Ws. chased the appellant Muhammad Ashraf and caught him red-handed with the blood-stained Chhuri. Ghulam Rasul died at the spot as a result of the injuries received by him.

3. Rana Ahmad Hussain (P.W. 10) was the S.H.O. of Police Station Head Marala on 16-4-1982. The witness stated that on the day of occurrence at about 7-00 p.m. he was present at Kallowal Head Marala Road on patrol duty. Allah Ditta (P.W. 4) met him and made a statement before him (Exh. P.A.) which was reduced into writing. On the statement of Allah Ditta, Abdul Rashid M.H.C. (P.W. 1) registered the formal F.I.R. (Exh. P.A./1) on the same day at 7-30 p.m. The witness went to the spot and prepared the inquest report (Exh. P.E.) and the injury statement (Exh. P.F.) and sent the dead body to the mortuary for post-mortem examination under the care of Maqbool Ahmad Constable No. 508 and Chan Pir Shah Constable No. 938. Blood-stained earth was collected from the spot by the witness and the same was taken into possession vide Memo Exh. P.G. He took into possession three blood-stained stones vide memo Exh. P . H . Six bottoms of the broken bottles P.6 to P. 11 and 40 pieces of broken bottles were taken into possession vide memo Exh. P.J. Bicycle P. 52 and crate P. 53 of bottles containing 15 bottles of Cocacola P. 54 to P . 68 as also three broken bottles P . 69 to P . 71 were taken into possession vide memo Exh. P.K. The witness prepared the site plan of the place of occurrence (Exh. P.L.). Appellant Muhammad Ashraf alias Gunga was produced before the witness by the complainant, Muhammad Ismail and Abdul Latif P.Ws. at the spot. The said appellant was arrested and blood-stained Chhuri P.5 was recovered from him which was in his hand at the time of his arrest. It was taken into possession vide memo Exh. P.D. Maqbool Ahmad Constable produced before the witness the last worn clothes of the deceased, namely, shirt P. 1, Shalwar P.2, vest P.3 and a locket P.4 on 17-4-1982, which articles were taken into possession vide memo Exh. P.B. Chaudhary Muhammad Ibrahim Draftsman prepared the site plan Exh. P.M. The handwriting and signatures of the draftsman were identified by the witness. Muhammad Rafique led to the recovery of dagger P. 75 from his residential house which dagger was blood-stained and was taken into possession vide memo. Exh. P.N. On the same day appellant Muhammad Nazir alias Billa while in custody, led to the recovery of blood-stained Chhuri P. 76 from underneath a culvert near the tubewell of one Qaim Din and the same was taken into possession vide memo Exh. P.O. On the same day appellant Muhammad Akram led to the recovery of Sua P. 77 from his residential house and the same was taken into possession vide memo Exh. P.P. According to the report of the Serologist (Exh. P.R.), the blood-stained articles were found to be stained with human blood.

4. Dr. Muhammad Hanif (P.W. 5) on 17-4-1982 conducted the post-mortem examination on the dead body of Ghulam Rasul alias Kaku deceased and found the following injuries on his person:--

(1) Lacerated wound 3" x 1" x bone fracture deep transversely oblique back top left head 1/2" left to midline.

(2) Lacerated wound 3" x 1" x bone deep transversely oblique top back head, on midline.

(3) Incised wound 1" x 1/4" x bone vertically oblique 2/4" behind left ear.

(4) Incised wound 3" x 1/2" x bone deep transversely oblique outer back left head.

(5) Lacerated wound 2" x " x bone deep underlying bone fractured vertically oblique on outer right head 3" above right ear.

(6) Lacerated wound 1/2" x 1/8" x bone deep underlying bone fractured depressed with contusion 1 " x 1" around it on outer back right head.

(7) Lacerated wound 2" x I" x bone deep underlying bone fractured depressed vertically oblique back mid-head with contused swelling 3" x 1" around it.

(8) Incised wound 1" x " x bone deep, vertically deep outer to right eye-brow.

(9) Incised wound " x 1/8" x skin deep, transversely deep above inner right eye-brow.

(10) Incised wound " x 1/8" x skin deep vertically oblique right forehead " to the right to the midline.

(11) Incised wound " x 1/8" x skin deep vertically oblique right forehead " below No. 10.

(12) Incised wound " x 1/8" x skin deep transversely oblique 3/4" above outer right eye-brow.

(13) Contused swelling 2" x 1" right and mid-upper lip with laceration 1/4" x 1/8" on inner surface, right to midline with right upper first incisor dislocated.

(14) Contusion 2" x 1" right and mid-lower lip.

(15) Abrasion 1/2" x " back left wrist.

(16) Abrasion " x " back 2" above left wrist.

(17) Lacerated wound " x 1/8" x skin deep transversely oblique back proximal left middle finger.

(18) Contusion 4" x 1" vertically oblique, back lower left shoulder blade.

(19) Contusion 2" x 1" vertically oblique back upper right shoulder blade.

(20) Abraded contusion, 2" x 1.3/4" with marks of 4 teeth impression on back side of right shoulder blade.

(21) Abraded contusion, 2" x 1.3/4" with impression of 4 teeth bites on back of left shoulder blade.

The doctor opined that as a result of injuries Nos. 1, 2, 5, 6 and 7 the underlying skull bones were fractured. In his opinion, all the injuries were ante-mortem and injuries Nos. 1, 2, 5, 6 and 7 were sufficient to cause death in the ordinary course of nature. Injury No. 13 was grievous prior to death. Injuries Nos. 3, 4, 8, 9, 10, 11 and 12 were caused by a sharp-edged weapon, whereas the rest of the injuries were caused by a blunt weapon except injuries Nos. 20 and 21 which were caused by teeth bite. Probable time that elapsed between injuries and death was soon after the injuries and that between death and post-mortem examination was within a day. Death in the opinion of the doctor occurred due to injury to brain, haemorrhage and shock.

5. The eye-witness account has been provided by Allah Ditta (P.W. 4), father of the deceased Ghulam Rasul alias Kaku, Muhammad Ismail (P.W. 6), cousin of Allah Ditta complainant, and Abdul Latif (P.W.7), son of the complainant and real brother of the deceased. Ch. Barkat Ali, son of Nathu, was another eye-witness but he was not produced by the prosecution. The complainant Allah Ditta stated that the appellant Muhammad Rafique and Muhammad Akram are the sister's sons of Farman Ali acquitted co-accused. The appellant Muhammad Ashraf is nephew of Farman Ali, acquitted co-accused and Muhammad Nazir alias Billa appellant is brother of the wife of Muhammad Akram appellant. The witness submitted that the deceased Ghulam Rasul and Abdul Latif (P.W.7) his sons, had gone to purchase bottles of cold drink from village Lalewali as the complainant had to entertain the marriage party of his nephew with cold drink. Since they did not come back soon, therefore, Allah Ditta (P.W. 4) alongwith Muhammad Ismail (P.W.6) went towards village Lalewali to find out as to why their arrival was delayed. The witness disclosed that when they reached near the tubewell of Bashir Ahmad, he saw Abdul Latif P.W. 7 and Ghulam Rasul deceased coming on bicycles. Farman Ali, acquitted co-accused, was standing near the Dera of Bashir Ahmad and when the deceased Ghulam Rasul reached near him, the acquitted co-accused Farman Ali shouted that he should not go alive and should be done to death today. On this all the four appellants armed with respective weapons, as stated earlier, emerged from the nearby wheat crop field of Hafiz Nasir situate on the southern side of the road. The appellant Muhammad Rafique gave a Khanjar blow which landed on the left side of the head of the deceased. On the receipt of the injury, the deceased fell down from his bicycle. The appellant Muhammad Ashraf then gave a Chhuri blow on the back side of the head of the deceased. The appellant Muhammad Akram gave a Sua blow on the mouth of the deceased. Appellant Muhammad Nazir alias Billa gave Chhuri blow which landed on the head of Ghulam Rasul deceased. After this, all the accused started inflicting injuries to the deceased with their respective weapons at his head and face. The witness further disclosed that the appellants also caused injuries with stones and bottles to the deceased. In cross-examination the witness admitted that the police had got his thumb impression after making inquiry from him at the spot. On the clarification of the Court, the witness again said that at Bahadurpur village the police recorded his statement and got his thumb-impression. The witness said that he was at a distance of one Killa when the appellants attacked his son. The witness admitted that the road on which the occurrence took place was metalled road. There were 40 to 50 persons who collected at the place of occurrence when the police had reached there. He stated that the appellant Muhammad Ashraf was still holding the chhuri in his hand and the same chhuri was recovered from him by the police. The witness conceded that all the fifteen bottles were broken after hitting the body of the deceased. The witness submitted that he had also stated before the police that the accused had given blows with their respective weapons after the deceased had fallen and also he was given blows with stones and bottles. However, this statement was confronted with Ex. P. A . wherein this fact is not mentioned that the deceased was injured by the accused with stones and bottles. The witness disclosed that Kallowal road remains busy on account of regular traffic till evening. About the earlier quarrel between Muhammad Rafique appellant and the deceased Ghulam Rasul, the witness deposed that the said occurrence took place in the bazar of village Kallowal. Again said, the quarrel took place outside the village towards eastern side and then again said that the occurrence in fact had taken place towards the northern side of the village and the said place is situated near the houses of Christians and butchers inside the village Abadi. The witness conceded that five to seven persons were present at the time of quarrel between Muhammad Rafique appellant and Ghulam Rasul deceased. The witness admitted that appellant Muhammad Rafique did not lodge any complaint with the police about the previous occurrence. Almost to the same effect are the statements of Muhammad Ismail (P.W.6) and Abdul Latif (P.W.7). Muhammad Ismail (P.W.6) admitted that the complainant Allah Ditta (P.W.4) is his cousin. He also conceded that the wife of Allah Ditta is the daughter of his father's sister. The witness admitted in cross-examination that Sua held by Muhammad Akram appellant was 4" in diameter and Muhammad Akram appellant had given more than one Sua blows on the mouth of the deceased. The witness conceded that he cannot estimate number of the Sua blows. The witness admitted that there were heaps of stones lying there on the road side. Ch. Barkat Ali (not produced) was standing at a distance of about one Karam towards the East at the time of occurrence. The witness candidly admitted that neither he nor Allah Ditta Abdul Latif and Barkat Ali P . Ws . had pelted stones or bottles on the accused to save the life of the deceased. The road where the occurrence had taken place was under construction. He stated that he alongwith other P.Ws. raised alarm for about fifteen minutes, but none on their alarm came at the spot from the village. He admitted that none of the people who were passing on that road at that time was attracted to the spot on their cries. The witness submitted that appellant Muhammad Ashraf is of stout body. The witness did not deny the suggestion that Farman Ali acquitted co-accused was of 80 years in age. The witness stated that about 50 to 60 persons had joined them in pursuing the accused persons. The witness disclosed that appellant Muhammad Ashraf was made to sit at the spot and the chhuri remained in his possession. He further stated that appellant Muhammad Ashraf was neither tied nor confined in any room. On the contrary, he was sitting very freely. Abdul Latif (P.W.7), the real brother of the deceased and son of Allah Ditta complainant (P.W.4) has deposed in line with the prosecution story. This witness has given an improved version of the prosecution story like other witnesses. He deposed that the appellants caused injuries to the deceased with stones, which were lying on the road side which was under construction at that time. The witness stated that the police came at the spot after about one and a half hours after they had brought appellant Muhammad Ashraf at the spot. The witness submitted that 8 to 10 persons were present at the spot when Muhammad Ashraf appellant was apprehended and was brought back at the place of occurrence. However, the witness did not mention the names of those persons.

6. The appellants in their statements before the trial Court made under section 342, Cr.P.C. denied the prosecution allegations against them. Appellant Muhammad Akram took the stand that he has been falsely involved in the case being the first cousin of appellants Muhammad Ashraf. He stated that at the relevant time he was present in his house and during investigation he had produced several witnesses including Hafiz Nasir Ahmad, in his defence in order to establish his innocence. He stated that his defence plea was bound reliable and convincing and accordingly he was declared innocent. Similarly Muhammad Nazir appellant took the plea that on the day and time of the occurrence he was present in Sialkot and from 4-00 p.m. to 6-00 p.m. he attended the funeral ceremony of Shaukat son of Taj Din alongwith Ibrahim, Muhammad Salim, Abdul Majid, Qazi Muhammad Arif, Muhammad Akram, Maulvi Muhammad Hanif, Muhammad Ilyas, Kalimullah etc. in the ground of Hazrat Imam Sahib, Sialkot. He stated that the funeral prayer was led by Hafiz Muhammad Alam at 5-30 p.m. on 16-4-1982 and the funeral ceremony came to an end at about 6.30 p.m. Appellant Muhammad Ashraf while making the statement deposed that he did not know anything about the occurrence and in fact he was apprehended on 16-4-1982 during night time by the police from his house and he stated that chhuri did not belong to him. He categorically denied that he was arrested by the witnesses. He submitted that he has been involved in the case because of his relationship with Farman Ali, acquitted co-accused. Muhammad Rafique appellant while making his statement deposed that he has been falsely implicated in the case because the acquitted co-accused Farman Ali is the Councillor and his political opponent Barkat .Ali (not produced) has falsely involved him. The appellants also produced three defence witnesses, namely, Muzaffar Ali (D . W . 1) , Muhammad Hanif (D . W . 2 ) and Munir Ahmad (D.W. 3). Muzaffar Ali (D.W.1) stated that Farman Ali acquitted co-accused remained present with him while attending the proceedings of the Punchayat which was attended by about 35 other persons. Muhammad Hanif (D.W. 2) stated that he knew Muhammad Nazir appellant and that Muhammad Nazir appellant joined the funeral ceremony of Shaukat Ali on the day of occurrence from 4-00 p.m. to 6-00 p.m. He stated that 'about 500 people joined the funeral ceremony referred to above. They witness submitted that after the funeral ceremony was over, appellant Muhammad Nazir came back with him to his residence. Munir Ahmad (D.W.3) stated that Muhammad Akram appellant was known to him and that on the day of occurrence at about 5-15 or 5-30 p.m. the said appellant had come to his shop to purchase milk and that Muhammad Akram appellant remained at his shop for about 15/20 minutes. The witness stated that he heard from the bazar that Ghulam Rasul alias Kaku had been murdered about 5 to 10 minutes earlier on Kullowal Head Marala Road.

7. The learned counsel for the appellants argued that it is established on the record that the eye-witnesses were not present at the spot so as to witness the occurrence. Learned counsel submitted that the occurrence is an unwitnessed one. It is next argued that the appellants had caused all the injuries to the deceased with Khanjar and Sua. There is no mention of any injuries caused by stones or bottles. Learned counsel submitted that the post-mortem examination report (Ex.P.C.) shows that injuries Nos. 3, 4, 8, 9, 10, 11 and 12 were caused by a sharp-edged weapon, whereas the rest were caused by a blunt weapon and injuries Nos.20 and 21 were caused by teeth bite. The learned counsel vehemently submitted that there is no injury which has been caused by Sua. Learned counsel maintained that except injury No.4, none of the injuries seems to have been caused by Chhuri or Khanjar. The injuries could have been caused by broken bottles. Learned counsel stated that at the trial stage the eye-witnesses had introduced an improved version inasmuch as they stated that the appellants caused injuries to the deceased with Sua, water bottles and stones. Learned counsel stated that the teeth bite injuries have not been explained at all. On the basis of the nature of injuries as mentioned by the witnesses and the medical evidence will lead to positive inference that the eye-witnesses were not present and they did not see the occurrence. The learned counsel submitted that all the eye-witnesses are closely related to one another. Learned counsel stated that if they were present at the spot they could repel the aggression of the appellants by pelting stones and bottles which were available to the witnesses on the spot and thus the appellants must have been injured at the spot. The witnesses did not take any action to save the life of the deceased. The learned counsel submitted that the prosecution story appears to be improbable inasmuch as according to the prosecution version Muhammad Ashraf appellant, a young man armed with Chhuri, was chased and caught by the eye-witnesses but the acquitted co-accused Farman Ali, aged 80 years, could not be caught by them. The learned counsel argued that this aspect of the case is highly improbable and unnatural. He stated that if the eye-witnesses were in a position to catch any of the appellants, Farman Ali acquitted co-accused who is an old man, could be caught very easily. Learned counsel stated that the trial Court did not believe the prosecution evidence while acquitting co-accused Farman Ali and, therefore, the same set of eye-witnesses could not be believed qua the other appellants. Learned counsel submitted that motive as set out by the prosecution, has not been proved. He stated that the recoveries of weapons of offence on the face of it appear to be fake and bogus. The recovery witnesses were not produced and were given up as having been won-over. In the absence of the recovery witnesses, the recoveries stand unproved. Lastly the learned counsel argued that the F.I.R. was recorded at the spot after having completed the investigation of the case. Learned counsel for the State has half-heartedly supported the conviction and sentence awarded to the appellants by the trial Court.

8. We have heard learned counsel for the parties at great length and have perused the record very minutely. We are of the view that the prosecution has not at all been able to prove its case against the appellants beyond any reasonable doubt. We are not prepared to accept the testimony of Allah Ditta (P.W.4), Muhammad Ismail (P.W.6) and Abdul Latif (P.W.7). To begin with, the testimony of these eye-witnesses is admittedly interested. Allah Ditta (P.W.4) is the complainant being the father of the deceased Ghulam Rasul. Muhammad Ismail (P.W.6) is the cousin of the complainant and Abdul Latif (P.W.7) is the real brother of the deceased and the son of the complainant. Testimony of these eye-witnesses who are closely related inter se, cannot be implicitly relied upon in the case for variety of reasons, Allah Ditta (P.W. 4) the maker of the F.I.R., has given an improved version of the prosecution case before the trial Court in order to remove the fatal and inherent defects in the case of the prosecution. The version of the eye-witnesses before the police was that the appellants while armed with Khanjars, Chhuris and Sua caused injuries on the person of the deceased with their respective weapons and murdered the deceased at the spot. However, this eye-witness account is in direct conflict with the medical evidence. There are as many as 21 injuries found by the doctor while conducting the post-mortem examination on the dead body of Ghulam Rasul deceased. We have carefully seen the medical evidence and find that there are no teeth bite injuries on the person of the deceased. Secondly, there are no injuries on the person of the deceased caused by a pointed weapon like Sua, and thirdly except injury No.4, other injuries on the person of the deceased appear to have been caused by blunt weapon. Similarly all other injuries alleged to have been caused by sharp-edged weapon could have been caused by broken bottles. This glaring contradiction of medical evidence with that of the eye-witness account persuades us to come to a conclusion that Allah Ditta (P.W.4), Muhammad Ismail (P.W.6) and Abdul Latif (P.W. 7) the so-called eye-witnesses, were not present at the spot when the occurrence had taken place. In our view, in all probability, the occurrence in hand had taken place much earlier than the arrival of the eye-witnesses at the spot. As observed earlier, the eye-witnesses are closely related to the deceased. If they were present at the spot, they would have under all circumstances physically intervened so as to save the life of the deceased Ghulam Rasul from the attack of the appellants. To begin with, this is in the evidence of the prosecution that there were heaps of stones lying on the road near the place of occurrence in addition to the crates of bottles which were in possession of the deceased and Abdul Latif (P.W. 7). These bottles as well as the stones could be used as effective weapons in order to repel the` aggression launched on them. However, the fact remains that the eye-witnesses did not move an inch to save the life of the deceased. They did not use the stones either which were lying in heaps near them. They also did not use the bottles which were immediately available to them. The mere fact that the appellants were not injured, will go a long way ~to show that the eye-witnesses were not present at the spot at the time of occurrence. Under all these circumstances, we reject the eye-witnesses account and come to the conclusion that the occurrence was not at all witnessed by the aforesaid eye-witnesses. Additionally, there was another independent eye-witness Barkat Ali who has not been produced by the prosecution for unknown reasons. The presumption in law is that if he had been produced, he would not have supported the prosecution case but in fact would have deposed favourable to the appellants. The occurrence took place on 16-4-1982 and by this time, harvesting season had started. It is a common knowledge that large number of people are employed to harvest, the wheat crop. Therefore, many such people would have been present near the place of occurrence. Further, it is in the evidence that the people were passing on the road. No such person has appeared as an eye-witness. All the facts taken together creates considerable doubt in the truthfulness of the prosecution story.

9. The motive part of the prosecution story has also not at all been proved by the prosecution beyond reasonable doubt. There was no such serious quarrel having been taken place between the deceased Ghulam Rasul and the appellant Muhammad Rafique two months earlier to the occurrence. According to the prosecution version, in the earlier occurrence there was a fight between the deceased Ghulam Rasul and Muhammad Rafique appellant in which Muhammad Rafique appellant received an injury on his arm We are not prepared to accept that part of the story of the prosecution inasmuch as the matter was never reported to the police, nor a complaint was filed before the competent Court of law against appellant Muhammad Rafique. It is also in the evidence that Muhammad Rafique appellant was injured in the occurrence but he was not medically examined. Apart from this, the prosecution version is that the dispute was got compromised by the efforts of Muhammad Hussain, son of Sain, and Salim, son of Suba. In order to prove the motive, the evidence of these witnesses was very essential, but they, have not been produced by the prosecution. Again, the inference is that no such quarrel took place and it has been concocted so as to provided motive for this occurrence. There is no evidence whatsoever to prove the motive. The recovery of Sua is not helpful to the prosecution either. The prosecution version is that Muhammad Ashraf appellant was apprehended at the spot by the P.Ws. We find this part of the story of the prosecution as improbable. Appellant Muhammad Ashraf is man and of stout health. He could not be expected to be apprehended by the unarmed witnesses. He could have very easily run away. Even the conduct of the eye-witnesses, as observed earlier, was such that they did not physically intervene at the spot so as to save the life of the deceased. If they had not taken any part in the fight earlier and they stood like silent spectators at the spot, they cannot be believed to have chased the appellant Muhammad Ashraf in order to apprehend him. Obviously, the eye-witnesses are not telling the truth and their evidence is full of contradictions and discrepancies.

10. The prosecution has not come with true facts of the case and they have concealed the material facts from disclosure. The prosecution version is wholly different from the one they have placed before the police than the one they have relied upon before the trial Court.

11. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. We accordingly proceed to accept the appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith if they are not required in any other criminal case. The sentence of death awarded to the appellants is not confirmed.

M.Y.H./M-424/L Appeal accepted.