1968 P Cr (PLP)

M. JAMIL ASGHAR, J.-Khushi Muhammad, Muhammad Ismail sons of Bakhsh, Qaim Din, Nazir alias Bra. Ghulam Muhammad, Muhammad Siddique and Bashir Ahmad appellants were convicted and sentenced by the learned Additional Sessions Judge, Lahore, as under:- (1) (a) Khushi Muhammad sentenced to death under section 302/149, P. P. C. for the murder of Bhuddoo deceased ; (b) two years rigorous imprisonment under section 148, P. P. C. ; (c) five years rigorous imprisonment under section 449, P. P. C. ; (d) four years rigorous imprisonment under section 326/149, P. P. C. for causing injuries to Sohni (P. W. 14); (e) Two years' rigorous imprisonment under section 325/149, P,. P. C. for causing injuries to Nawab Din (P. W. 16) ; ( f ) seven years' rigorous imprisonment under section 201, P. P. C. The latter sentences were ordered to run concurrently and were to take effect if his death sentence was not confirmed. (2) (a) Qaim Din, Muhammad Ismail and Nazir alias Jira sentenced to transportation for life each under section 302/149, P. P. C. for the murder of Bhuddoo deceased ; (b) two years' rigorous imprisonment each under section 148, P. P. C. ; (c) three years' rigorous imprisonment each under section 450, P. P. C. ; (d) four years' rigorous imprisonment each under section 326/149, P. P. C. for causing injuries to Sohni P. W. ; (e) two years' rigorous imprisonment each under section 325/149, P. P. C. for causing injuries to Nawab Din P. W. ; (f) seven years' rigorous imprisonment each under section 201, P. P. C. All these sentences were ordered to run concurrently. (3) (a) Ghulam Muhammad, Muhammad Siddique and Bashir Ahmed sentenced to two years' rigorous imprisonment each under section 148, P. P. C. ; (b) eight years' rigorous imprisonment each under section 307/149, P. P. C. for the attempted murder of Bhuddoo deceased (c) three years' rigorous imprisonment each under section 450, P. P. C. ; (d) two years' rigorous imprisonment each under section 325/149, P. P. C. for causing injuries to Nawab Din P. W. ; (e) four years rigorous imprisonment each under section 325/149, P. P. C. for causing injuries to Sohni P. W. ; (f) seven years' rigorous imprisonment each under section 201, P. P. C. All these sentences were ordered to run concurrently. These three appellants were, however, acquitted of the charge of murder. Muhammad Ishaq, Ilam Din, Alam Din and Babu alias Bavi, who were also tried along with the appellants, were, how ever, acquitted. The appellants, against their convictions and sentences have preferred this appeal. The learned Additional Sessions Judge, has made a reference under section 374, Cr. P. C. for the confirmation of death sentence awarded to Khushi Muhammad appellant. Muhammad Ismail son of Bhuddoo deceased had also filed a revision (Criminal Revision No. 588 of 1967) for enhancement of sentences of Muhammad Ismail son of Bakhsh, Qaim Din and Nazir alias Jira appellants. Since the appeal, reference and the Revision arise out of the same judgment, they will be disposed of together by this order.

3. All the appellants and acquitted accused except Babu alias Bavi are related inter se. Khushi Muhammad and Muhammad Ismail are brothers being the sons of Muhammad Bakhsh. Qaim Din's sister is the wife of Khushi Muhammad. Nazir alias Jira and Bashir Ahmad are brothers being the sons of Khushi Muhammad. Ghulam Muhammad and Qaim Din are also -brothers being the sons of one Balanda. Muhammad Siddique is the son of aforementioned Ghulam Muhammad. Muhammad Ishaq is the son of Qaim Din. Ilam Din and Alam Din are brothers being the sons of one Hassan Din. Their niece was married to a son of Khushi Muhammad. They all are residents of village Jahman, District Lahore.

4. The occurrence, in this case, took place, on the 31st of May 1965, at 3 p. m. in the haveli of Gulab a paternal uncle of Bhuddoo deceased. A day prior to the occurrence, under consideration, at about 9-30 a.m. Mehraj Din (P. W. 13) came to the chemist's shop belonging to one Noor-ud-Din in village Jahman. At that time Karim-ud-Din (P. W. 11) a son of Noor-ud Din, who worked in the shop, was present. Mehraj Din P. W. got sodamint tablets from Karim-ud-Din F. W. as he complained of stomach-ache. Bhuddoo deceased also arrived there. When both of them, i.e., the deceased and Mebraj Din P. W. were talking to each other in the varandah of the shop, Khushi Muhammad appellant passed by and asked them as to why they bad not contributed towards the collection of grains for the Moulvi of the mosque in the village. They replied that the Moulvi was immoral and as such they, had refused to say prayers behind him and, therefore, they were not prepared to contribute anything for the said Moulvi. Upon this Khushi Muhammad appellant abused them and the deceased also abused him in return. There after both of them started grappling with each other. At that time one Muhammad Latif, whose shop is close by, came there and he as well as Karim-ud-Din intervened and separated them. Khushi Muhammad appellant while leaving the shop threatened that be would teach the deceased a lesson for abusing him. Since the appellants and the co-accused were responsible for bringing the Moulvi to the village and getting him appointed as the Imam of the mosque, they felt very annoyed with the deceased and Mehraj Din P. W. for refusing to contribute their share of grain for the Moulvi. According to the prosecution this constituted the motive for the occurrence, under consideration.

5. On the day of occurrence at about 3 p.m. Muhammad Ismail (P. W. 12) brother of the deceased, Mehraj Din (P. W. 13), Sohni (P. W. 14), another brother of the deceased, Nawab Din (P. W. 16), father of the deceased, Rehmat (P. W. 15), and the deceased were sitting in the haveli of one Gulab, where his son Ali Muhammad (not examined) was present, smoking huqqa when all the appellants and the acquitted accused turned up there. Khushi Muhammad, Muhammad Ismail, Qaim Din, Nazir alias Jira and Ghulam Muhammad were armed with spears. Muhammad Siddiq and Bashir Ahmad were armed with takwas. Muhammad Ishaq and Babu alias Bavi were armed with guns and Alam Din and Ilam Din were armed with rifles. Khushi Muhammad appellant shouted that Bhuddoo should be killed. The assailants, who were armed with firearms, stood at the entrance of the haveli and the others came inside. Khushi Muhammad gave a spear blow in the middle of the chest of the deceased, while Ismail, Qaim Din and Nazir alias Jira caused him injuries in his abdomen with spears. The four assailants, who were armed with firearms, while standing at the entrance of the haveli shouted that if anyone attempted to come out, he would be shot down. Bhuddoo deceased fell down after receiving the injuries. Sohni P. W. got up to intervene, but was given a takwas blow on his left hand by Muhammad Siddique. Ghulam Muhammad then gave him a spear blow below the right knee. Sohni P. W. managed to snatch the spear from Ghulam Muhammad appellant and when Khushi Muhammad came towards him, he struck his spear in his left axilla. There after Khushi Muhammad struck a spear blow on the dorsum of left hand near the root of the thumb of Sohni P. W. Nazir alias Jira then dealt him a spear blow on his right arm. Qaim and Ismail also tried to assault him, but he managed to run away by scalling over the small wall close to the khurli. Before leaving, however, the spear, which he had snatched from Ghulam Muhammad had dropped from his hands. The assailants then left the spot, taking their weapons with them. Soon after that Mehraj Din P. W. and Ali Muhammad (not examined) had also left the spot. Thereafter Gulab, uncle of the deceased came there from his fields. The mother of the deceased also arrived there at the same time. Muhammad Ismail P. W. leaving his parents and Rehmat P. W. with the dead body of the deceased, went to Police Station Burki, reaching there at about 5-15 p.m. and lodged first information report Exh. P. A. which was recorded at his dictation by Sub-Inspector Ch. Muhammad Siddiq (P. W. 22). The distance between the haveli of Gulab and the police station would be about 10 miles. About 20 minutes or half an hour after the occurrence, while Muhammad Ismail P. W. was still away, all the 11 assailants turned up there. Khushi Muhammad was unarmed, while the rest had the same weapon with them. They had also brought two mares, one of which was ridden by Khushi Muhammad. Khushi Muhammad, Ilam Din, Alain. Din, Muhammad Ishaq and Babu alias Bavi remained outside the haveli, while the remaining six came inside and picked up the dead body of Bhuddoo, who had died by then and placed it on a khes. Nawab Din P. W. and his wife resisted the removal of the dead body by falling on it. Muhammad Ismail pulled both of them aside and Muhammad Siddique and Bashir Ahmad gave one blow each with the blunt side of their takwas on the hands of Nawab Din and then managed to remove the dead body of the deceased from there, by wrapping it in the khes. The dead body -was first placed on the thara outside the deohri of the havell and was then placed on the mare, which Khushi Muhammad was riding. The assailants thereafter left the spot, taking the dead body with them. The second mare was ridden by Ilam Din and Alam Din. On the same day at about 4 p.m. Chanan (P. W. 21) was grazing his cattle near Burki Canal known as new canal and saw Khushi Muhammad, Nazir alias Jira, Muhammad Siddique and Alam Din coming from the side of village Jahman. Khushi Muhammad was riding a mare on which there was a bundle wrapped in a white khes and some blood was dripping out of it. Chanan P. W. also saw a human foot protuding out of the bundle. Alam Din, armed with a rifle was accompanying Khushi Muhammad on foot, while Muhammad Siddique armed with a gun, and Nazir alias Jira armed with a spear, were riding the other mare. Khushi Muhammad, however, was unarmed. Chanan P. W. proceeded to the house of Muhammad Ismail P. W. and learnt that he had gone away to the police station. Chanan P. W. appeared before the police on the next day.

6. Sub-Inspector Ch. Muhammad Siddique P. W. after recording the report went to the scene of offence and found the dead body of the deceased missing. He prepared the injury statements Exhs. P. GG. and P. HH. of Sohni and Nawab Din P. Ws. respectively, and sent them to Rural Dispensary Hadyara for medical examination. The Sub-Inspector found blood lying inside the haveli as well as on the thara outside the deohri, close to the scene of offence. He secured blood-stained earth from inside the deohri vide memo. Exh. P. J. and from the thara outside the deohri vide memo. Exh. P. K. and made them into separate sealed parcels. He also saw a trail of blood on the eastern wall of the haveli as well as on the khurli. He collected bloodstains from both the walls and the khurli. The appellants were not in the village and so he deputed A. S. I. Abdul Wahid to look for them. The Sub-Inspector arrested all the appellants except Khusbi Muhammad, Muhammad Ismail and Alam Din on the next day, i.e., the 1st of June 1965. On the same day Qaim Din produced spear Exh. P. 4 from his house, which the Sub-Inspector took into his possession vide memo. Exh. P. U. A mare from the house of Qaim Din was also taken into his possession by the Sub-Inspector on the same day. Ghulam Muhammad produced spear Exh. P. 5 from his house, which the S. I. took into his possession vide memo. Exh. P. W. Muhammad Siddique produced takwa Exh. P. 6 from his house, which the S. 1. took into his possession vide memo. Exh. P. Y., Bashir Ahmad produced takwa Exh. P. 7 from his house, which the S. 1. took into his possession vide memo. Exh. P. Z. None of these weapons was stained with blood. On the same day the house of Muhammad Ismail was searched and in his absence the Sub -Inspector recovered rifle Exh. P. 8 and 28 live bullets Exh. P. 11, vide memo. Exh. P. AA. The Sub-Inspector also recovered gun Exh. P. 9, and 15 cartridges, Exh. P. 10, as well as the licence of the gun from the house of one Nawab alias Bahali, father of Babu alias Bavi, vide memo. Exh. P. BB. On the 2nd of June 1965, Khushi Muhammad appeared before the Sub-Inspector in village Jahman and he arrested him. Since he was injured, the S. 1. prepared his injury statement Exh. P. KK. and sent him to Rural Dispensary Hadyara for medical examination. Before sending him he had recovered blood-stained spear Exh. P. 3 from his (Khushi Muhammad's) kotha at his instance, vide memo. Exh. P. L. and made it into a sealed parcel. According to the report of the Serologist the blood on the said spear was dis integrated and, therefore its origin could not be determined. On the same day Khushi Muhammad led the S. I. to a place on the Canal bank and pointed out some blood lying there. The S. I. took the same into his possession vide memo. Exh. P. M. and made it into a sealed parcel On the 3rd of June 1965, one Talib produced Alam Din before the S. I , who arrested him. On the 4th of June 1965, Muhammad Ismail appeared before the S. I. at the Police Station and he arrested him. He also produced gun Exh. P. 1, two cartridges and the licence of the gun as well as his mare, which the S. 1. took into his possession vide memo. Exh. P. B. On the. 5th of June 1965, Hassan Din, father of Alam Din, produced rifle Exh. P. 2, which the S. I. took into his possession vide memo. Exh. P. L.

7. On the 4th of June 1965, while A. S. I. Muhammad Siddiq (P. W. 6) Incharge of Police Post Chhanga Manga and Foot Constable Muhammad Yousaf (P. W. 7) were on petrol duty in the forest of Chhanga Manga one Muhammad Yaqub met them and took them to Upper Bari Doab Canal, where a left leg of a human being had already been retrieved by two persons, namely Muhammad Yousaf and Muhammad Sharif (not examined). The leg was then taken into possession by the A. S. 1. and sent to the mortuary through Foot Constable Muhammad Yousaf P. W. for post-mortem examination. On the next day, i.e. the 5th of June 1965, the same A. S. 1. noticed a right human leg floating in the same canal about a furlong further from the spot from where the left leg had been recovered. The A. S. 1. also took this leg into his possession and sent it to the mortuary for post-mortem examination. The skin of the second leg, except on the foot, had peeled off. Hidayat Ullah (P. W. 9) had witnessed the recovery of the second leg on the 5th of June 1965.

8. Doctor Muhammad Azeem Qureshi (P. W. 1) on the 5th of June 1965, at 12-45 p m. performed post-portem examination of left leg of a human being and found it in a state of decomposition with skin peeling off and maggots crawling in the knee joint. The leg seemed to have been cut just above the condyle of the femur bone. He made the following observations :- (1) That the leg was of a human body ; (2) That the leg had been detached from the rest of the body within about a week. (3) That the age of the deceased was probably between 20 to 35 years ; (4) that the leg appeared to be of a male body ; and (5) that the leg had been removed from a dead body. The length of the leg as measured from medical malleolus to the upper and was one foot 8 inches. On the 6th of June 1965, at 9 a.m. the same doctor held post mortem examination of a completed right leg. The leg was in a state of decomposition with skin peeled off. On the dorsum of the foot a scar mark measuring 1 x was present. The leg had been cut from the thigh at the level of condyle of right femur bone. Maggots were crawling inside the joint and over the leg. He made the following observations (1) That the leg had been detached by sharp-edged weapons from the rest of the body within about a week ; (2) that the age of the deceased seemed to be within 20 to 35 years ; (3) that the leg appeared to be of a male dead body ; (4) that the leg had been removed from the body after the death of the person and not before ; and (5) that the leg belonged to the same dead body of which the left leg was examined by him a day before. The length of the right leg as measured from the medial malleolus to the upper cut and was one foot 6 inches. In other words this right leg was shorter than the left leg by 2 inches.

9. Muhammad Ismail P. W. appeared before the doctor and identified the right leg by the scar mark as that of his brother, Bhuddoo deceased. According to him the deceased had received a scar as a result of burning while he was a boy. From the size of the two legs and their appearance the doctor came to the conclusion that both the legs were of a male body and had been cut from the same dead body. According to him the reason why there was difference of two inches in the length of two legs was that one bad been cut at the site of condyle and the other two inches above.

10. Doctor S. M. Najam-ud-Din Aziz (P. W. 20) on the 1st of June 1965 examined Sohni P. W. and found the f6howing injuries on his person :- (1) A clean cut incised wound with clean cut margins. measuring, 2 ' x " x1', on the Palmer side of the left hand at the route of the thumb near the wrist joint, with soft clotted blood present on the wound and on the surrounding area. (2) A punctured incised wound with clean cut margins measuring, 1 ' x 3/16' x 2" at the web on the dorsal side, between left thumb and index finger with soft clot of blood formed on the wound and on the surrounding area. (3) A fusiform perforated punctured incised wound with inverted clean cut margins with entry wound measuring 1 x 8/16' x 5` on the dorsal side of right forearm. Proximal part just near elbow joint with exit wound measuring 1 " X 6/16" x perforated fusiform punctured incised wound with everted margins clean cut and smooth. The wound was bleeding and a soft clot formed on the wound and the surrounding area. Part inflammed painful and tender, movement restricted. (4) A transverse fusiform punctured incised wound with clean cut smooth margins measuring 10/ 18' x 4/ 16' on the front lateral side of right left upper part near knee joint. As a result of X-ray done by Muhammad Muzammil Mufti Radiologist (P. W. 18) injury No. 3 was declared to be grievous and the rest of the injuries were simple. On the same day at 7 a.m. the doctor examined Nawab Din P. W. and found the following injuries on his person :- (1) A contused transverse wound with irregular margin measuring 4/10' x 1/10' x superficial skin deep on the dorsal side of proximen inter-phalangeal joint of the left ring finger with reddish inflammation of the joint. (2) An oblique bruise reddish in colour measuring 1" x 1/2' on the dorsal side of left little finger part inflammed. It was painful and tender. (3) An oblique reddish bruise measuring, 2 ' x ", on the dorsal side of left hand on metacarpal bones of ring finger and little finger. Its part was inflammed, painful and tender. As a result of X-ray done by Dr. Muhammad Muzammil Mufti P. W. a fracture was found under injury No. 2 and so it was declared to be grievous and the rest of the injuries were found to be simple. On the 2nd of June 1965, Dr. S. M. Najam-ud-Din P. W. examined Khushi Muhammad appellant and found an oblique fusiform punctured incised wound with clean cut smooth margins measuring 12/16" x 4/16' x 1' on the posterior border of the left armpit. The wound was clean from the surrounding area and watery fluid was oozing out of it. There was no inflammation pre sent on the surrounding area. The wound was slightly scabbing at the end. In the opinion of the doctor the injury was simple and bad been caused with double edged sharp pointed weapon.

11. The appellants denied their guilt. Khushi Muhammad appellant explained the injury on his person by stating that he had received it at the hands of the police, who had tied him upward. He stated :- "Ismail complainant and Bhuddoo deceased used to smuggle goods from across t8e Indian border. I had reported against them to the police. Ismail was prosecuted. A sten gun was recovered from the house of Sohni on the information provided by me to the police. Sohni and his wife were prosecuted. Gama a brother of the deceased had stolen our toria crop. He was also prosecuted at my instance. I had no quarrel with the deceased or Sohni, etc. Ismail complainant contested election against my brother Ismail accused. The complainant had to withdraw from the contest, for lack of support in the village. My brother returned unopposed. We had no relationship with the complainant. My sister had passed away about 15 years back. We had no further relations with the complainant side. I have been falsely implicated in this case so that the complainant party can indulge in smuggling without difficulty." Muhammad Ismail appellant made the following statement "I contested elections to the basic democracies I was being opposed by Ismail complainant. He had to withdraw from the contest as none in the village supported him. He was aggrieved. Khushi Muhammad accused, is my brother. He informed the police that Sohni had unlicensed arms. A sten gun was recovered from the house of Sohni P. W. He as well as his wife were prosecuted. He is also aggrieved with us. I had the intention to contest election to the office of the Chairman Union Council, We had helped Bahali, brother-in-law of Bavi accused, against Abdur Rahim, blacksmith. The latter had lost to Bahali to the election. Rehmat and Abdul Rahim hail from the same village in India. Mebraj Din P. W. is related to Abdul Rahim. We had also prosecuted Gama, a brother of the deceased, for theft of toria crop. All the witnesses have conspired to implicate us falsely in this case. I am innocent." He also added: "The complainant party lives on smuggling. Smugglers are generally killed at the border in an encounter with the police etc. It is a false case against me. All adult members of my family have been roped in." Qaim Din appellant made the following statements:- "Khushi Muhammad accused is my brother-in-law. Muhammad Ismail complainant is aggrieved with us on account of election disputes. We had prosecuted Gama, a brother of Ismail complainant, for theft. Sohni was prosecuted at the instance of Khushi Muhammad for having been in possession of unlicensed arms. I had appeared as a witness against Gama, brother of the deceased. Mehraj Din and Rehmat P. W. are in the party of complainant and under his influence." He also added: "The complainant and all of his brothers live on smuggling. The deohri of Gulab is not meant for residence or used as a cattle-pen. That deohri is meant for receiving smugglers from across the Indian border." Ghulam Muhammad appellant made the following statement :- "I am brother-in-law of Khushi Muhammad accused. Com plainant is aggrieved with us on account of election. Sohni was prosecuted at the instance of Khushi Muhammad. We had also prosecuted Gama, brother of the deceased. Abdul Rahim is annoyed with us. Rehmat and he come from the same village in India. Mehraj Din is related to him. All the witnesses have made false statements against me." He also added "Siddiq accused is my son. He had appeared as a witness against Gama, brother of the deceased. I have been involved in this case on account of enmity and relationship with Khushi Muhammad accused. The complainant and all of his brothers are smugglers." Muhammad Siddique appellant made the following statement:- "The complainant and his brothers are aggrieved with me. I had appeared as witness against Gama, a brother of the deceased, about three or four months before this occurrence. Khushi Muhammad accused, is my uncle. The complainant and the witnesses are annoyed with him. They have made false statements against me." Bashir Ahmad appellant made the following statement:- "The complainant is inimical towards my father, Khushi Muhammad accused. The complainant also had a dispute with my uncle, Ismail, over election. My uncle had prosecuted Gama, a brother of the deceased. My father got Sohni P. W. arrested. We had helped Bahali, brother-in-law of Nawab alias Bavi accused, in his election against Abdul Rahim, black smith. Rehmat is under the influence of Abdul Rahim. Mehraj Din is related to him. The police has fabricated this case and created false evidence against us." He also added: "The complainant and his brothers live on smuggling. The deceased was a notorious smuggler. He had possibly been killed on the Indian border. The complainant has falsely implicated us in this case. If a person is killed at the border his dead body is not claimed by, the persons related to him, lest they should be pestered by the authorities. The deceased had also been killed in the like manner." Nazir alias Jira appellant made the following statement :- "The complainant is aggrieved with us on account of election. He opposed my uncle Muhammad Ismail accused during the last election to basic democracies. He had to withdraw from the election for lack of support in the village. My uncle was returned unopposed. Sohni was prosecuted at the instance of my father. We had also prosecuted Gama, a brother of the deceased. Bahali, brother-in-law of Bavi accused, contested election against Abdul Rahim. 'We had helped the former. Mehraj Din is related to Abdul Rabim. Rehmat comes from the native village of Abdul Rahim in India. The witnesses have made false statements against me." He also added "The complainant and his brothers live on smuggling. We have been falsely involved in this case so that none checks them for smuggling." In their defence they examined Dr. Abdul Aziz Khan, Surgeon Ganga Ram Hospital, Lahore, and Professor of Surgery Fatima Jinnah-Medical College, Lahore (D. W. 1), who completely belied Dr. Muhammad Azeem Qureshi P. W. because according to him the scar mark was not identifiable.

12. The prosecution case against the appellants rests solely on the testimony of Muhammad Ismail (P. W. 12), Mehraj Din (P. W. 13), Sohni (P. W. 14), Rehmat (P. W. 15) and Nawab Din (P. W. 16). The recoveries of spears and takwas from some of the appellants have no corroborative value as none of them was found to be stained with human blood and as such it cannot be said with judicial certainty that they were used in the commission of the offence. Similarly the recoveries of the firearms are also of no consequence because none of them was used in the commission of the offence. The evidence of wajtaker witness, namely, Chanan (P. W. 21) and the recovery of the blood-stained earth from the canal bank at the instance of Khushi Muhammad appellant were disbelieved by the learned Additional Sessions Judge, for carious reasons mentioned in his judgment. The view taken by him regarding their evidence has not been disputed by the learned counsel for the state. We see no reason to disagree from the learned Additional Sessions Judge as regards his appreciation of their evidence.

13. As already mentioned above two human legs were recovered, one of which was identified by Muhammad Ismail P. W. as that of Bhuddoo deceased. He had identified the leg by the presence of a scar mark on the dorsum of right foot. That scar was also noticed by Dr. Muhammad Azeem Qureshi P. W., who performed post-mortem examination of that leg. The doctor was of the opinion that both the legs were of a male body and belonged to one person- aged between 20 to 35 years. According to Muhammad Ismail P. W. the age of the deceased at the time of his death was about 26 years. Doctor Abdul Aziz Khan (D. W. 1), who is a Surgeon of Gauga Ram Hospital, and Professor of Surgery, Fatima Jinnah Medical College, Lahore, for the last 14 years, and has been in the profession for the last 37 years, completely belied Dr. Muhammad Azeem Qureshi P. W. Doctor Abdul Aziz Khan P. W. is also a Fellow of not only of Royal College of Surgeons Edinbrough, but also a Fellow of International College of Surgeons Geneva. He stated that the scar on the dorsum of right foot could not be identified because of the decay etc. He also stated that unless there was scientific examination of the bones, i.e., cutting them length wise, nobody could say whether both the legs were of the same person or they were of a male or a female. He further added that no estimate of the age by looking at the legs could be given because according to him the bones of the legs stop growing at the age of 17.19 years and, therefore, it is not possible to determine the age of a person beyond 19-20 years on the basis of the examination of legs only. He also stated that the changes of purification will also effect the scar tissue in the skin as well as in the underlying muscle and the changes in both are likely to be un discernable for the purpose of identification. According to him as soon as state of peeling off of the skin commences, it becomes very difficult to identify the scar mark even though the skin at the site of the scar mark had not peeled off. Further according to him if both the legs had. been seen together at one time then alone a doctor could say whether they are of the same person. In the present case Dr. Muhammad Azeem Qureshi P. W. saw one leg on the 5th and the second leg on the 6th, therefore, it was not possible for him to say that they belonged to one and the same person. Doctor Abdul Aziz Khan is more qualified than Dr. Muhammad Azeem Qureshi and, therefore, the learned Additional Sessions Judge rightly preferred- the opinion of Dr. Abdul Aziz Khan as against the opinion expressed by Dr. Muhammad Azeem Qureshi P. W. Thus it has not been established that the legs, which were recovered, were that of the deceased.

14. Now we are left with the uncorroborated testimony of the aforementioned eye-witnesses and, therefore, their evidence has, to be scrutinized with care. Out of the aforementioned eye witnesses only two, namely, Rehmat and Mehraj Din are not related to the deceased. Sohni P. W. is a real brother of Muhammad Ismail, P. W. while the deceased was his consanguine brother. Nawab Din P. W. is the father of the deceased. Muhammad Ismail P. W., in the first information report, did not mention that Khushi Muhammad appellant also received injuries at the hands of Sohni P. W. At the trial, however, he stated that Sohni P. W. had snatched the spear from Ghulam Muhammad appellant and when Khushi Muhammad appellant advanced towards him, he gave him a spear injury and after that Sohni, P. W. dropped the spear and ran away by scaling over the wall. The other eye-witnesses including Sohni P. W. have also stated the same thing. From the medical evidence we find that the injuries received by the appellant were given from behind and so if Khushi Muhammad had advanced towards Sohni P. W., how could he have caused that injury. 1n any case if Sohni P. W. had actually snatched the spear from Ghulam Muhammad, he would have given him an injury, because Ghulam Muhammad was quite close to him. In any case, there were so many men armed with spears and, therefore, how they could have allowed Sohni P. W. to snatch the spear from Ghulam Muhammad appellant. Further with so many assailants about it is very difficult to believe that they would have allowed Sohni P. W. to run away from there. We also find that there has been an inordinate delay in the lodging of the first informa tion report. Police Station Burki, where the first information report was lodged is about 10 miles from the scene of offence, while Police Post Heir is only 4 or 5 miles away. There is no explanation forthcoming on the record as to why Muhammad Ismail P. W. instead of going to police post went to the police station, which was much further away from the scene of offence. According to the prosecution we find that one day prior to the occurrence Khushi Muhammad appellant had a row with Bhuddoo deceased and Mehraj Din P. W. when they were at the shop of Karim-ud-Din P. W. and this led to the occurrence, under consideration. If that is so, it is difficult to understand why none of the assailants attacked Mehraj Din P. W., who was equally involved with Bhuddoo deceased. In any case the story of the prosecution is highly improbable because of a petty quarrel Khushi Muhammad appellant would not have brought such a large number of armed men to avenge the insult. Thus the motive for the occurrence has also not been proved.

15. Further the version that after about 20 minutes or half an hour of the occurrence all the assailants came back to the place of occurrence armed with the same weapons and carried away the dead body of the deceased, does not appear to be plausible. If they wanted to take away the dead body, they would have taken it at the first instance and would not have come back for it later because by doing so they were creating more evidence against themselves, as by that time many other villagers must have collected at the spot and would have seen them. Thus it is clear that the occurrence did not take place in the manner as alleged by these eye-witnesses. In any case it will not be safe to base conviction on their uncorroborated testimony, when it has been established that they had falsely implicated four persons, namely, Muhammad Ishaq, Ilam Din, Alam Din and Babu alia Bavi. In case, Muhammad Faiz Bakhsh v. The Queen (P L D 1959 P C 24) it was held "That the credibility of witnesses could not be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question it could not be right to accept the jury's verdict against one and re-open it in the case of the other." The same view was followed by our High Court in case Ahmad Khan and another v. The State (P L D 1962 Lah.390). In case Abdur Razaq v. The State (P L D 1964 Pesh. 67) it was observed :- "It is well-established principle of law that the veracity of a witness is not `divisible' and in case a witness is not believed in regard to some accused, he cannot be believed in regard to others without independent corroboration in material particulars in regard to the each of the remaining accused." In case Rehmat v. The State (P L D 1959 S C (Pak.) 109) it was observed :- "Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the grounds that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence." In the present case there is also no circumstantial evidence or admission of guilt by any of the accused persons, and, therefore, each of the appellants is entitled to acquittal.

16. In the result giving benefit of doubt to the appellants, we accept their appeal, set aside their convictions and sentences and acquit them. They should ;,be released forthwith, if not wanted in any other case.

17. Since the appeal has been accepted, the Revision is dismissed.

18. Before parting with the judgment we wish to point out that the learned counsel for the defence also contended that the convictions of the appellants under some of the sections were illegal, even if the evidence of the eye-witnesses was believed, but since we have not relied on their evidence, we do not consider it necessary to go into this matter. Appeal accepted.