P L D 1983 Lahore 195 (PLP)

RUSTAM S. SIDHWA, J.-Ghulam Rasul and his brother Muhammad Ibrahim were tried by the Sessions Judge, Dera Ghazi Khan, under section 302/34, P. P. C. for the double murder of their brother Abdul Sattar, deceased, and his wife Mst. Saleeman, deceased. The learned Sessions Judge, by his judgment dated 14-4-1980, convicted both the accused under the said section and sentenced each of them to death; subject to confirmation by this court, and to pay a fine of Rupees Three Thousand (Rs. 3,000), or in default thereof to undergo rigorous imprisonment for two years. Half of the fine, if recovered, was ordered to be paid to the legal heirs of Abdul Sattar and Mst. Saleeman, deceased, as compensation under section 544-A, Cr. P. C. The appeal Cr. A. 537 /80 of both the convicts and the connected murder reference (M. R. 1.19/80), are both now before us for consideration and will be disposed of by this judgment.

2. The prosecution case is that Muhammad Yaqub, complainant, P. W. 5 resided in Kotla Ahmad where he cultivated land. His sister Mst. Saleeman, deceased, was living with her husband Abdul Sattar, deceased, at a distance of three squares from his house in mauza Fazilpur Becharagb. On the fateful day i.e. 28-10-1978 at about 9-00 p.m. he went to the house of Abdul Sattar, deceased, in order-to secure Rs. 50, as a loan. He saw a lamp burning and hanging on the peg outside the wall of his kotha. Ghulam Rasul, accused, who was armed with a stick, and Muhammad Ibrahim, accused, were present outside the said kotha and they were telling their brother Abdul Sattar, deceased, that as Ghulam Rasul, accused, had not been given his share of the land by his father, so they should sell the land in question and give him his share. Abdul Sattar, deceased, bluntly refused to do that. On this, Ghulam Rasul, accused, who was armed with a soti, inflicted an injury on the head of Abdul Sattar, deceased, whereupon he fell down on the ground. Mst. Saleemaa, deceased, rushed out of her house to rescue her husband from the accused, whereupon, Ghulam Rasul and Ibrahim, accused, with chaku and chhurl respectively pounced upon Mst. Saleeman Bibi and Abdul Sattar, deceased, and they inflicted many injuries with their respective weapons on their person. Muhammad Yaqoob P. W. 5 raised alarm, which attracted Muhammad Akram P. W. 6 and his brother Farzand Ali (given up P. W.), residents of Fazilpur Becharagb, who were coming from a flour mill after having had their wheat ground. They saw the occurrence with their own eyes. They challenged the accused persons, but the accused ran away with their respective weapons. When Muhammad Yaqub P. W. 5 alongwith other witnesses reached near the two injured, they had breathed their last. Muhammad Yaqub P. W. 5 then proceeded to the Police Station, Rajanpur where he lodged F.

1. R. Exh. P. A. on 29-10-1978, just after mid-night at 00-45 a.m. which was recorded by Muhammad Rafiq S. I. P. W.

8. The Investigating Officer then proceeded to the spot where, after preparing the necessary papers he sent the dead bodies for post-mortem examination. He also collected blood-stained earth from underneath the place where the two dead bodies of Mst. Saleeman and Abdul Sattar were lying, vide Memo. Exh. P. H.

3. On 30-10-1978 at 3 p.m. Dr. Hasnain Pitafi P. W. 9 conducted the post-mortem examination on the dead body of Mst. Saleeman, deceased, and found the following injuries on it : (1) An incised wound 5'' x 2'' on interior side of neck cutting the blood vessels, wind pipe and oesophagus. (2) An incised wound 1"x '' x '' on interior side of head. (3) A stab wound 1" x " x going deep on back of middle of left chest. (4) An incised wound 1 x " x "on back of middle of chest. (5) A stab wound 1' x " X going deep on back of left side of abdomen. (6) Three incised wounds each 1 x x 1 on outer side of back of left chest. (7) A bruise 2''x 2'' on top of left shoulder. (8) A bruise 1'' X 1'' on top of right shoulder. (9) A stab wound I'' x '' x 1'' on middle of right thigh. The left lung was found injured under injury No. 3 and the peritonium was found injured under injury No.

5. All the injuries were ante-mortem. Injuries Nos. 7 and 8 were caused by blunt weapon, whereas the rest were caused by sharp-edged weapon. Death was due to shock and haemorrhage as a result of injuries Nos. 1 and 3, which were fatal and sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was intantaneous and that between death and post-mortem examination was about 40 to 44 hours.

4. The same day at 4-00 p.m. Dr. Hasnain Pitafi P. W. 9 also conducted the post-mortem examination on the dead body of Abdul Sattar, deceased, and found the following injuries on it : (1) Multiple bruises on face. (2) Multiple bruises on right side of head. (3) Multiple bruises on left side of head. (4) A bruise 4' x 1' fracturing the left lower jaw. (5) A bruise 1' x 1' on left shoulder. (6) A stab wound 1" x I' x I' on left side of neck. (7) A stab wound 1' X "X "' going deep on anterior side of left abdomen. (8) An incised wound 1' x " x " on left abdomen J' below injury No. 7. (9) An incised wound I' x " x " on lower part of anterior side of left chest.

10. An incised wound I' x " X "on left chest. Spleen was injured under injury No.

7. All the injuries were ante-mortem. Injuries Nos. 1, 2, 3 and 4 were caused by blunt weapon, while the rest were caused by sharp-edged weapon., Injuries Nos. 7 and 4 were fatal and grievous respectively, while the rest were simple. Death was due to shock and haemorrhage as a result of injury No. 7, which was sufficient to cause death in the ordinary course of nature. Probable duration between injuries and death was 1 to 2 hours and between death and post-mortem examination about 40 to 44.

5. On 31-10-1978 both the accused were produced by a Zamindar before the Investigation Officer, who arrested them.

6. On 3-11-1978 Muhammad Ibrahim, accused, led to the recovery of his blood-stained shirt P. 6 and blood-stained chhuri P. 7, from a bhoosa stack, which were taken into possession by the police vide memo. Exh. P. K. Likewise, Ghulam Rasul, accused, led to the recovery of blood-stained knife P. 8, his blood-stained chaddar P. 9 and a blood-stained stick P. 10 from the residential kotha of his landlord, which were taken into possession by the police, vide memo. Exh. P. L. All these recoveries were witnessed by Asghar Ali P. W. 7 and Arsbad Ali (given up P. W.). All these articles, as also the blood-stained earth recovered earlier, were found to be stained. with human blood.

7. After completing the necessary investigation, challan against both the accused was sent up.

8. At the trial, the prosecution produced Muhammad Yaqoob P. W. 5 to prove the motive, the said witness and Muhammad Akram P. W. 6 in proof of the ocular account, Asghar Ali P. W. 7 and Muhammad Rafiq S.1. P. W. 8 in support of the recoveries and Dr. Hasnain Pitafi P. W. 9 to corroborate the medical testimony.

9. Both the accused denied all the accusations that were levelled against them, including the recoveries alleged to have been effected at their instance. In their statements under section 342, Cr. P. C. both of them stated that some burglars had entered the house of their deceased brother Abdul Sattar to commit theft, in which process they had killed their brother and his wife and had stolen away a pair of bullocks belonging to them. The occurrence was unwitnessed. In the morning, one Muhammad Ismail D. W. 1 found the two deceased lying murdered with their infant baby crying. Muhammad lsmail D. W. 1 brought the baby to their house and informed them about the death of the two deceased persons. They both stated that they had been falsely involved by the complainant party because they had previously refused to give the hand of a girl to the complainant in exchange for the marriage of Mst. Saleeman, deceased, with their brother Abdul Sattar. They also stated that the complainant party was informed by Muhammad Hussain D. W. 2 about the death of the two deceased persons.

10. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical testimony, convicted and sentenced both the accused, as stated in para. 1 above.

11. We have heard the arguments of the learned counsel for the appellants .and the State and have also perused the record. The evidence as regards motive is furnished by Muhammad Yaqoob P. W.

5. According to his testimony, Ghulam Rasool, appellant, was not given any share of land by his father Jamal Din, who had transferred his land in the name of his other son. Ghulam Rascol, appellant, demanded his share from Abdul Sattar, deceased. 1t was decided in the baradri that the whole land of Jamal Din should be sold and new land should be purchased, which should be divided amongst the brothers and Ghulam Rasool, appellant, should also be given a share therein. Abdul Sattar, deceased, however, refused to sell his own land, because of which the two appellants committed the murder. The statement of Muhammad Yaqoob P. W. 5 shows that Jamal Din had transferred his land "in the name of his other son" and the further narrative suggests that the said son was Abdul Sattar, deceased, and that Ghulam Rasool, appellant, was demanding his .share from him. However, if one reads the F.

1. R Exh. P. A. of the said Muhammad Yaqoob P. W. 5, it appears that Jamal Din had four sons, including Ghulam Rasool, appellant, and he disinherited the said Ghulam Rasool and transferred his land in the names of his three other sons, from whom Ghulam Rasool demanded his share. Ghulam Hussain Patwari P. W. 1, in cross-examination, stated that the place of occurrence was in Killa No. 9/25 which was owned by the two appellants, their deceased brother Abdul Sattar and their father in equal shares and that in all they only owned ten Killas of land in the village, which was all at one place. In the light of these statements, there appears to be a total discrepancy as regards the facts constituting the motive. The statement of Muhammad Yaqoob P. W. 5 about motive as given in the F. I. R., conflicts with that given by him at the trial, which otherwise also stands belied by the statement of Ghulam Hussain Patwari P. W.

1. In these circumstances, much reliance cannot be placed on the solitary statement of Muhammad Yaqoob P. W. 5 in this respect. No member of the Panchayat was produced to support the motive.. In these circumstances, we feel somewhat reluctant to accept the evidence of motive as established in this case.

12. The ocular account in this case is furnished by Muhammad Yaqoob P. W. 5 and Muhammad Akrani P. W.

6. The former is the real brother of Mst. Saleeman, deceased, whereas the latter is a maternal cousin of the former. The brother of Muhammad Yaqoob P. W. 5 was also cited as a witness in this case, but ultimately was given up as unnecessary at the trial. All the three eye-witnesses are related to both the deceased and, if we may refer in passing to a sidereal fact, the two recovery witnesses, namely, Asghar Ali P. W. 7 and Arshad (given up P. W.), are also related to the two deceased persons. Muhammad Yaqoob P. W. 5, on the fateful day at Isha Prayer time, had gone to the house of Abdul Sattar, deceased, tp recover Rs. 50 from him, which the deceased had borrowed on the occasion of the birth of his daughter, when he saw both the appellants quarrelling with Abdul Sattar, deceased outside the room of his Kotha and whereafter the occurrence arose. Muhammad Akram P. W. 6 and Farzand Ali (given up P. W.) were returning to their homes from a chakki, where they had had their wheat ground, and whilst they were proceeding with their she-donkey loaded with the ground wheat, they heard alarm when they were near the house of Abdul Sattar, deceased, and rushed to the spot, where they found both the appellants inflicting injuries to the deceased. Both the eyewitnesses apparently appear to carry a semblance of being natural witnesses A and admittedly both the witnesses have no enmity with any of the appellants. However, their evidence requires deeper scrutiny as the incident took place at night on a wintry day and the occupants of the bastis of Behram, Ghulam Ali, Sulebani, Ghulam Rasool Shah and Ghulam Hussain, which Bastis were two to three acres away from the place of occurrence, and who would have heard the commotion and run up to the Kotha of the deceased and seen the occurrence, have not been produced. Muhammad Yaqoob P. W. 5 stated that he went to the house of the deceased on the fateful day at Isha Prayer time to recover Rs. 50, which the deceased had earlier borrowed from him on the occasion of the birth of his daughter. He required the said amount as his son Mahmood, who was studying in school at Kotla Nazir, had demanded the money for payment of tuition fee, which he had to pay the next day in school. However, in his F.

1. R. Exh. P. A. he had stated that he went to Abdul Sattar, deceased, to secure a loan of Rs. 50 and he did not refer to the fact that his son had made any demand from him for school fee. In cross-examination, he admitted that he did not arrange for his son's tuition fee for three days. The reason for his laeing present at the house of the deceased so late in the night is more than fortuitous, if not suspicious. Muhammad Akram P. W. 6 stated that he and Farzand Ali (given up P. W.1 were returning at the relevant time from a chakki with their ground wheat loaded on she-donkeys, and were proceeding to their homes, when near the house of the deceased ;hey heard alarm and ran to the spot and saw the occurrence. In cross-examination, however, he stated that though he had gone to the said chakki about 4 or 5 times prior to the date of occurrence to get his wheat ground, yet he neither knew the name of the owner of the said chakki, nor the name of the well or mauza in which the said chakki was located, nor they had taken the police to the said chakki to get their presence there verified, nor did the police ask them to take them to the chakki, nor did they produce before the police the donkeys or the wheat that was ground. He also admitted in cross-examination that they also used to go to Rajanpur in order to have their wheat ground. It is improbable that a villager would not know the name of the owner of a chakki where he has been four to five times before to have his wheat ground. It is also unbelievable that he would not know the name of the well or the Mauza where the chakki was situated, and further still unbelievable that the police would not have requested them to take them to the said Chakki for the purpose of verification of their story. The reason given by him for his presence at the spot also appears to be more than fortuitous, if not suspicious. Further, their account of the occurrence also does not seem to ring true. In the F. I. R. Exh. P. A. Muhammad Yaqoob P. W. 5 stated that when he reached the Kotha of the deceased he heard the altercation about the demand of Ghulam Rasool, appellant, about his share of the land, which when refused, Ghulam Rasool, appellant, inflicted a Lathi blow on the head of Abdul Sattar, deceased, and when AN. Saleemart came out of the Kotha tq rescue her husband, both the appellants with their chaku and chhuri fell upon both of them and started inflicting injuries on them indiscriminately. At the trial, he repeated the story with the difference that when Mst. Saleeman, deceased, came out of the room to rescue her husband, Ghulam Rasool, appellant, gave her some stick blows and then he pulled out a knife from his Dub and then both the appellants with their knife and chhuri respectively started injuring both the deceased. In cross-examination however, he stated that he was at a distance of a killa from the place of occurrence when he heard a dhar dhar and about five to six kararns away from the same, when he saw the appellants giving blows to both the deceased he further stated that Ghulam Rasool, appellant, threw his stick on the ground after giving blows to Abdul Sattar, deceased. then started giving knife blows to him, then again picked up the same stick and injured Mst. Saleeman, deceased, with it. He further stated that after both the appellants had given injuries to his sister Mst. Saleeman, deceased, Ghulam Rasool, appellant then gave one or two blows with the stick to Mst. Saleeman deceased, and be gave further injuries with a knife holding the stick in his other hand. Muhammad Akram P. W. 6, in his statement. Exh. D. A. before the police initially stated that he and Farzand Ali (given up P. W.) heard dhar dhar, went to the spot, where they saw Ghulam Rasool and Ibrahim, appellants, inflicted injuries on Abdul Sattar, deceased, with their respective chaku and chhuri and that when Mst. Saleeman came out to the Kotha to rescue her husband, both started inflicting injuries on her and felled her and that when they shouted a Lalkara to the appellants, they ran away. At the trial, Muhammad Akram P. W. 6 stated that when he. and Farzand Ali (given up P. W.) reached the Kotba of the deceased, he saw Ghulam Rasool, appellant, armed with a stick and knife, anti Muhammad Ibrahim, appellant, with a chhuri, injuring Abdul Sattar, deceased, and that when b1st. Saleeman, deceased, ran out of the Kotha to rescue her husband, she was also injured by them, whereafter the appellants ran away from the spot. In cross-examination, he stated that Ghulam Rasool, appellant; was having a stick in one hand and knife in the other and was giving stick blows to Mst. Saleeman, deceased, when they reached there, and that thereafter Ghulam Rasool; appellant, gave knife blows to Abdul Sattar, deceased, who fell on the ground before Mst. Saleeman, deceased. He further stated that Ghulam Rasool, appellant, did not throw his stick on the ground. The version given by each before the police, at the trial in examination-in-chief and in cross-examination, appears to be contradictory and the version of one does not fit in with that of the other. The inference that both the witnesses did not actually see the occurrence, but rather spun out a story with their imagination, cannot be rejected. Both asserted that a lantern was burning and hanging on a peg on the wall outsid the Kotha of the deceased when the occurrence took place, but both admitted that the police did not take into possession the said lantern. Muhammad Akram P. W. 6 rather asserted that the lantern and the infant child of the deceased were taken away by the father of the appellants, but the police did not ask the said person why he had done so or that be should bring both the infant child and the lantern back to the spot. Muhammad Rafique S.

1. P. W. 8 asserted in cross-examination that there was no lantern burning at the spot when he reached there, nor was he told about the same by any witness, though a Chimni was burning inside the Kotha, which he did not feel necessary - to take into possession. The night being dark, the lantern appears to have been introduced to create identification, but assuming a lantern was there it would have been definitely taken into possession by the police. The fact that no lantern was taken into possession only shows that there was no such lantern burning at the spot outside the Kotha of the deceased at the relevant time. The conduct of the two witnesses at the scene of occurrence also appears to be unnatural. Muhammad Yaqoob C P. W. 5 and Farzand Ali (given up P. W.) were the real brothers and Muhammad Akram P.. W. 6 was the maternal-cousin of Mst. Saleeman, deceased, yet none of them made any attempt to either intervene or to apprehend any of the appellants. Muhammad Yaqoob P. W. 5, when questioned on this point in cross-examination, stated that when Ghulam Rasool, appellant, threw away his stick, he did not have the courage to pick it up and defend the deceased persons because at that time he was raising alarm with his back side towards the scene of occurrence. It hardly seems a natural conduct for a brother, who is seeing his real sister being murdered at the spot. The fact that they did not even run to apprehend the appellants is more startling than real. In fact the behaviour of all the three eyewitnesses is unnatural. . It is also contended by the learned counsel for the appellants that the names of the appellants were not known till some time on 30-10-1978, when the injury statement and the inquest report were finally written up. In this connection, the evidence of Allah Bakhsh F. C. P. W. 2, who stated that he escorted the dead bodies of the deceased to the mortuary on 30-10-1978, was pressed into . service. However, the evidence of Muhammad Yaqoob P. W. 5, which appears to be more true and natural, suggests that the dead bodies were removed to the hospital the day following the murder. The Zimini, as referred to by the learned counsel for the State, supports his evidence, which Zimini, however, we cannot take into consideration. Nevertheless, the fact that the dead bodies were received in the mortuary on 29-10-1978 also stands established from a question in crossexamination put by the learned counsel for the appellants to Dr. Hasnain Pitafi P. W.

9. He was asked that if be had been given the papers at 7-00 or 8-00 a.m. on the date he conducted the examination (i.e. 30-10-1978), whether he would have done so at that very time, which .question he answered in the affirmative. Obviously, the dead bodies must have been in the mortuary on 29-10-1978, otherwise such a question would not have been put to the doctor. The answer given by the doctor impliedly shows that he waited till the afternoon of 30-10-1978 before conducting the autopsy, as he had not received the papers. The delay in the submission of the injury statement and inquest report to the doctor with the dead bodies raises an element of doubt, as suggested by the learned counsel for the appellants, that the identity of the appellants was not known for quite some time till 30-10-1978. It is further submitted by the learned counsel for the appellants that as the names of the accused, the witnesses, the weapons carried by the accused etc., were not mentioned in the Aoznamcha report Exh. D. B. recorded in the Police. Station Diary on 29-10-1971 by Muhammad Rafique S.

1. P. W. 8, it must be presumed that the eye-witnesses neither saw the occurrence nor the assailants who committed the offence were known. In this connection, learned counsel has cited section 44 of the Police Act, 1861, and referred to the case of The Additional Advocate-General, West Pakistan v. Abdul Qadir (1972 P Cr. L J 309). Section 44 of the Police Act, 1861, states that it is the duty of every police officer in charge of a Police Station to keep a general diary in such form as is prescribed by the Provincial Government and to record therein all complaints plaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that have been taken from their possession or otherwise and the names of the witnesses who have been examined. This section gives the impression that the whole of the F. I. R. has to be recorded in the diary. However, section 154 of the Code of Criminal Procedure, 1898, which is a provision from a later enactment, is silent about the register in which the whole of the first information report has to be copied, though it does refer to the prescribed book in which the "substance" thereof has to be recorded. Rules framed under the Police Act, 1861, clarify the matter more clearly. The Punjab Police Rules, 1934, which, we understand, also apply to the Sind Province, are relevant in this respect. They are also of a period much later than 1861. Under sub-rule (1) of rule 24.1 of Chapter XXIV of the Punjab Police rules, 1934, Vol. III, every information relating to an offence, whether cognizable or non-cognizable has to be reduced to writing as' provided in sections 154 and 155 of the Code of Criminal Procedure. The distinction between the two forms of reports, as defined by the Punjab Chief Court, is found printed under the said sub-rule. The said text states that every information under section 154, Criminal Procedure Code, has to b reduced to writing as provided in that section and the substance thereto should be entered in the Police Station Diary and that only information which raises the reasonable suspicion of the commission of a cognizable offence should compel action under section 157, Cr. P. C. Under sub-rule (2) of the same rule 24.1, all information relating to cognizable offences, other than those mentioned in rule 24.10 which may be recorded in the register of petty offences, should be entered in full in the First Information Report Register. Under sub-rule (1) of rule 24.4 of the same Chapter, where an Officer on receipt of any information or intelligence has reason to suspect that no offence is committed, as alleged, he need only enter the substance thereof in the Police Station Diary. The First Information Report Register and the Police Station Diary are two of the various registers which are mentioned in rule 22.45 of the Punjab Police Rules, 1934, Vol. III and which are provided by the Provincial Government to be maintained at all police stations. Considering that section 154, Cr. P. C. and the Police Rules on the subjec are of a later date, as compared to the Police Act of 1861, we are of the opinion that the whole of the F. I. R. has not to be copied out in the Police Station Diary (or the Roznamcha Register, as this book is called in the Punjab). The words "substance thereof" in section 154, Cr. P. C. obviously do not mean the whole or material part of the F. I. R. What they mean is a brief gist thereof, with relevant particulars. Since under the Police Rules, copies of all F. I. Rs. relating to cognizable cas-.s and copies of all Police Station Diaries have to be sent to the office of the Superintendent of Police each day, a practice has grown up in the Punjab to record the substance of all F.

1. Rs. in the Police Station Diaries in the brief manner as recorded in Ex. D. B. Though this practice is a breach, rather than a fair compliance, of the Rule, we would not give this matter much importance, because of the long usage attaching to this practice and the thin perceptual margin that divides a recording which can fairly be said to be a "substance" of an information given, from one which is short and cryptic, as in this case. Even otherwise, the total omission to record the substance of the F. I. R. in the Police Station Diary, where the F. I. R. otherwise has been properly recorded in writing, as in this case, is not an illegality which would vitiate a trial. (See Hafiz Muhammad's case (32 Cr. L J 638). We now turn our attention to the case cited. It is urged on the basis of the decision of the Sind case, i.e. The Additional Advocate-General, West Pakistan v. Abdul Qadir (1972 P Cr, L J 309) that the words `.`substance thereof" under section 154, Cr. P. C. mean "the relevant and the most material part of the facts constituting the criminal offence" and that the statement in the Police Station Diary should be such "that it should make out the commission of a criminal offence against the implicated accused persons and should also give the names of the eyewitnesses and other material witnesses". In the first instance, we would humbly submit with respect, that the Karachi case does not make a proper distinction between the two registers that have to be maintained by the Police i.e. the F.

1. R. Register and the Police Station Diary and does not state in which the whole or the substance of the first information report has to be entered. The case being, therefore, distinguishable, the observations made therein with regard to the word "substance," cannot be taken as a safeguide for determining what constitutes a fair summary transcript of a first information report that has to be made in the Police Station Diary. In these circumstances and in view of what we have earlier stated about the lave on the subject, we would not, therefore, consider the absence of the names of the accused, the weapons of offence . carried by them and the names of the witnesses from the Roznamcha report Exh. D. B. as fatal to the prosecution case. However, taking all circumstances into consideration, namely, the relationship of the eye-witnesses to the deceased persons, their unnatural explanation for their presence at the spot, their highly contradictory account of the occurrence, their attempt to introduce a burning lantern to create ground for identification, their unnatural conduct at the scene of occurrence in meexly witnessing the murder of their nearest relatives without demur and the delay in the autopsy due to the late submission of papers to the doctor, all taken together, do not give us the courage to bring ourselves to believe that the witnesses' were present at the spot and saw the occurrence, as alleged. Their evidence is unnatural and unconvincing and does not ring true. For all these reasons, we cannot help but reject the ocular testimony.

13. In view of the rejection of the ocular account, nothing further remains to be discussed in the case. However, we would like to discuss the recovery evidence for whatever it is worth. The evidence as regards recoveries is furnished by Asghar Ali P. W. 7 and Arshad Ali (given up P. W.) the maternal cousin and real brother respectively of M.st. Saleeman deceased. As earlier stated, all the witnesses including the eye-witnesses and the recovery witnesses are all closely related to the deceased. According to the testimony of Asghar Ali P. W. 7. the appellants were arrested on the third day of the occurrence when Qul Khawani of the deceased was held, that on that very day he joined the police investigation, that he was sitting in the Qul ceremony when he was informed that the appellants were being taken to their houses by the police, that he and Arsbad Ali (given up P. W.) went to the police of their own accord, that it was just afternoon time when they joined the police at a place 2/3 Killas away from the place of the appellants and that it was Muhammad Ibrahim appellant from whom the recovery was effected first, after which the recovery was made from Ghulam Rasul, appellant. If this testimony is treated as correct, then the arrest of the appellants and the recoveries were made on 30-10-1978, that being the date when the Qul ceremony would normally have taken place. However, the testimony of Muhammad Rafique S.

1. P. W. 8 shows that both the appellants were arrested on 31-10-1978 and the recovery memos. Exhs. P. L. and P. K. and the testimony of Muhammad Rafique S. I. P. W. 8 clearly shows that the recoveries of the blood-stained clothes and the blood-stained weapons of offence from the appellants were effected on 3-I1-1978. No person from Mauza Fazilpur Becharagh was summoned to witness the recovery. Asgbar Ali P. W. 7 stated that recovery was first made from Muhammad Ibrahim, appellant, and then from Ghulam Rasool, appellant, whereas Muhammad Rafique S. I. P. W. 8 stated in cross-examination that Ghulam Rasool, appellant, was first to effect the recovery. Though it is the case of the prosecution that the stick P. 10 recovered from Ghulam Rasool, appellant, was blood-stained, the recovery memo. Exh. P. L. does not refer to the same being blood-stained. The blood-stained clothes and weapons of offence were not sent to the Chemical Examiner till 13-1-1979 for which there is no reasonable and plausible explanation. From the statement of Muhammad Azam H. C. P. W. 4, it appears that the articles were handed over by him to Abdul Majid F. C. P. W. 3 on 9-1-1979 for onward transmission to the office of the Chemical Examiner, Lahore, and though he took four days to get a docket from the office of the S. P., his movements were not recorded in the Roznamcba register at the police station. For all these reasons, the testimony of the recovery witnesses cannot be safely accepted as corroborative evidence.

14. The upshot of the above discussion is that neither the motive stands established, nor the ocular account, nor the recovery can be safely accepted G as proved. The appellants are, therefore, entitled to the benefit of doubt. `

15. For the foregoing reasons, this appeal is accepted and the conviction and sentence of the appellants are hereby set aside. They shall be released forthwith, if not required in any other case. The fine, if any recovered from them, shall be refunded to them. The death sentences of Ghulam Rasool and Muhammad Ibrahim appellants, are not confirmed. M. A. K. Appeal accepted.