P L D 1963 (W (PLP)

On being cross‑examined on this point, he has stated further that "Muhammad Panah accused asked us to leave the village on account of my son's misbehaviour."

12. Another cause of friction between his family and appellant Mubarik has also been spoken about by Haji Din Muhammad. This had its origin in his claim to part of Survey No.

248. His version on this point is as follows :‑ "It is not correct that Survey No. 248 was in possession of Mubarik accused. It is 10 jaribs. Out of these 10 jaribs half are mine, while half belong to Mubarik accused. I wanted the 5 jaribs of Mubarik as compensation for my daughter whom I gave to Mubarik accused. My said daughter died 5 or 6 years ago. I had given her in marriage abo::t 20 to 22 years back. I had been demanding 5 jaribs of land from Mubarik accused ever since then in compensation and he has been persistently refusing." Having carefully considered his version regarding the motive for the commission of the murders under consideration, along with the evidence referred to and discussed later, we have come to the conclusion that the relations of the appellants and acquitted accused on one side and Haji 'Din Muhammad, his sons and relations on the other, bad become so strained that both parties were prepared to go any length in order to finish off their opponents.

13. In connection with the occurrence under consideration also Haji Din Muhammad has referred to his visit along with his sons to Mubarik village for the purpose of reaping his paddy crop in the following words :‑ "About four or five months ago I had come alone to Mubarik village to my lands from Veebar where we had shifted from Mubarik village about 3 or 4 years back. I got cultivated paddy in my land by accused Allah Rakhio and Abdul Karim accused present in Court, I got it harvested. I stayed there for 5 to 8 days in my own house when my three sons Uris Mubarram and Janan came there. They had brought a door in the bullock‑cart. They came at about noon time and they had also brought a bag of mattars. They asked me to go to the land with the spade. I went there and got the spade from Lal Bakhsh P. W. I went and directed the water to my land, but the water did not flow. In the meantime my said sons brought the bullock‑cart on the road with the bag of mattars. My sons told me that as the water was not flowing, they would better go back and in the meantime fix the door in the house. At that time Mubarik and Dosoo accused were standing on the road. They said that they were going to inform the Zamindar and it was just by chance that we had fallen into their hands. They then went away to the village."

14. In course of the cross‑examination, he has gone further and stated "it is not a fact that we had gone to take produce of those 5 jaribs or so which I had been demanding from Mubarik. The scene of offence is on the public road coming from Miro Khan to Bhatti. Five jaribs of Mubarik accused had been cultivated by Haji Allah Rakhio accused. He was not engaged as hart by me." it may be mentioned here that in his statement before the committing Magistrate he had stated to effect that Haji Allah Rakhio had forcibly occupied the said piece of land which belonged to him.

15. In connection with the consideration of this version it is also necessary to refer to the evidence of Tapedar Habibullah ?. W. 1). According to him, Survey No. 248 belonged to one Dur Muhammad, a cousin of appellants Mubarik and Dosoo. Haji Din Muhammad has admitted that appellants Mubarik and Dosoo are cousins of Dur Muhammad who, according to him, was his nephew, but he does not say that they (appellants Mubarik and Dosoo) were also similarly related to him. As referred to above, he has deposed to the effect that half of Survey No. 248 (5 jaribs out of 10 jaribs of this survey number) belonged to him. The basis of his claim to the ownership of these 5 jaribs has already been referred to in his own words. It was apparently in the disputed 5 jaribs of Survey No. 248 that paddy crop had been raised and reaped and it was in connection with the removal of the paddy crop that had been reaped thrashed and stored there that a clash had taken place between the two parties in this case.

16. According to Haji Din Muhammad, Ali Nawaz and Allah Bakhsh (who have supported his version to a certain extent] it were the appellants and their companions who had throughout played the part of the aggressors in this base. The version of Haji Din Muhammad regarding the occurrence under consider?ation is as follows :‑ "About two or four minutes after, 20 persons including Mubarik and Dosoo, who are present in Court except Ghaus Bakhsh. Muhammad (otherwise known as Saffar) Ghulam Nab: and Roshan accused came there. Muhammad Pariah accused had a gun, Ghulam Rasul accused had a butcher's knife, while the rest had hatchets. Out of those 20 accused persons Ghaus Bakhsh, Ghulam Nabi, Roshan and Saffar accused were not there at all. Muhammad Pariah accused present in Court then instigated the other accused to slaughter us. Muharram accused present in Court snatched the chhuri from Ghulam Rasul's hands and Wasan accused present in Court caught hold of Uris by hair and Ghulam Rasul, Muharram and Wassan threw Uris down. Then Muharram accused slaughtered Uris by the said chhuri. After this the rest of the accused except the four accused persons, gave him hatchet blows. Then my other two sons Muharram and Janan were also slaughtered by the butcher's knife by Muharram, and other accused also caused injuries to both of them?.

17. Ali Nawaz (P. W. 5), however, has given out substantially different version, involving appellants Mubarik and Ahmad and four others, in the following words :‑ "about seven months ago it was about 4 p.m. I was returning to my village from Bhatti village. When I reached near the Wardat I heard cries. I saw six accused persons, Ghulam Nabi, Roshan, Mubarik, Ghaus Bakhsh, Saffar and appellant Ahmad, present in Court, armed with hatchets assaulting Janan, Muharram and Uris with hatchets and causing them injuries."

18. It would thus be noticed that Haji Din Muhammad has implicated the three appellants and 17 others, excluding accused Ghulam Nabi, Ghaus Bakhsh, Saffar and Roshan, while P. Ws. Allah Bakhsh and Ali Nawaz have involved appellants Mubarik and Ahmad (and not appellant Dosoo) and the four accused named above (Ghaus Bakhsh, Ghulam Nabi, Saffar and Roshan) and not spoken about the presence of the other accused catching hold of any one of the three deceased and slaughtering him as deposed to by Haji Din Muhammad. They have, as a matter of fact, as already noted, only stated to the effect that these culprits (appellants Mubarik and Ahmad and accused Ghaus Bakhsb, Ghulam Nabi, Saffar and Roshan) had attacked the deceased with their hatchets and killed them. It is thus clear that the versions given out by Ali Nawaz and Allah Bakhsh is very much different from what Haji Din Muhammad has deposed to, although all of them have made the statements involving the appellants and others in the murders of the three deceased in this case. Such omnibus statements as have been referred to above, involving a large number of persons could hardly be accepted safely against the appellant unless and until they are otherwise found sufficiently corroborated by reliable evidence, particularly when there had been ill‑feeling at least between appellant Mubarik and his brother appellant Dosoo on one side and the family of the deceased on the other for some years before the occurrence under consideration. As observed in Pandurang Tukia and Bhillia v. The State of Hyderabad (P L D 1956 S C (Ind.) 176), ?"people do not ordinarily act in unison like a Greek chorus and, quite apart from dishonest ; this is a favorite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say `all' even when they only saw `some' because they are too lazy, mentally to differentiate. Unless, therefore, a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value."

19. As has already been pointed out, Haji Din Muhammad had for some time before the occurrence under consideration, been entertaining a grudge against appellant Mubarik and his family. From his version it appears that on account of his being driven out of the village along with his family he had not only beep entertaining a grudge against accused Ghulam Rasul whose wife was alleged to have been enticed away by his son Uris, but also against Muhammad Panah, the Zamindar of the village who had taken the leading part against him. Due to this development, it seems, he was almost cut off from the village people, most of whom being under the influence of accused Muhammad Panah had turned, against him and his family. That was why he had indiscriminately involved as many as 20 persons including the three appellants in the commission of the murders of his sons and assigned to some of them prominent parts in the perpetration of the outrage. On the other hand, as already pointed out, Ali Nawaz and Allah Bakbsh, who had tried to support his case to a certain extent, have implicated appellants Mubarik and Abmad and four other accused, namely Ghaus Bakhsh, Ghulam Is abi, Saffar and Roshan, who have particularly been excluded by Haji Din Muhammad from participation in the murders of his sons. Haji Din Muhammad, bad, no doubt, told many lies in course of his disposition .as is evident from the versions given out by All Nawaz and Allah Bakhsh who had tried to support him to certain extent. They bad apparently done so, because they were interested in him and, therefore, were naturally ill‑disposed towards the appellants and their supporters, although they have tried to show that they were quite independent witnesses. It may be pointed out here, that Allah Bakhsh is admittedly a cousin of Haji Din Muhammad and that is why, like Ali Nawaz, he tried to support his version to a certain extent.

20. Moreover, Ali Nawaz, an immediate neighbour of Haji Din Muhammad, if not his relation, was apparently a chance witness, as according to his own version he had gone to Bhatti village for the first time (and did not remember for what purpose) and while returning to his own village had come upon the scene of offence and witnessed the occurrence from a distance of about a call (about two furlongs). He does not, however, speak about the presence of P. W. Allah Bakhsh. Probably he had tried to support Haji Din Muhammad's version against the appellants and others, because he was very much interested in him and had admittedly been entertaining a grudge against them for some time before the occurrence under consideration.

21. Besides, Allah Bakhsh has stated to the effect that he was at a distance of about 50 paces away from the scene of offence at the time when he had witnessed the occurrence. From the evidence of Tapedar Habibullah it appears that there were trees and shrubs on the banks of the canal near the scene of offence and probably obstructed the view of Allah Bakhsh while he was, according to his own version, standing near his land (which according to Tapedar Habibullah was about 770 feet away from the scene of offence) and witnessing what was going on there. Therefore, even if it is believed for a moment that he was standing near his land it is quite likely that he had not been able to identify the culprits and notice what exactly they were doing at the scene of offence. It appears from the evidence of Haji Din Muhammad recorded during the trial of the appellants that neither he himself nor his sons were armed at the time when they had come across appellants Mubarik and Dosoo on their way to their own land, although he had admitted in course of his statement before the committing Magistrate that he himself and his son Muharram were armed with hatchets and his sons Uris and Janan had lathis in their hands at that tim‑.. It may also be noted here that according to prosecution witness Allah Bakhsh, Janan was armed with a pistol, Uris with a gun and Muharram with a hatchet at the time of the occurrence. As already noted, according to mashirs Muhammad Bakhsh and Sub‑Inspector Fateh Muhammad, among other things, a gun and a pistol and 5 empties (shell of cartridges) were found at the scene of offence, Allah Bakhsh does not, like Haji Din Muhammad, however, go so far as to say that any one of them had used his weapon against his opponents in course of the occurrence. It has, however, to be remembered that one of the accused namely, Roshan, son of appellant Ahmad (who has been acquitted) was found, in course of the investigation, to be having ten incised wounds on his persons, appellant Ahmad himself one incised wound lad appellants Mubarik and Dosoo one contusion at the time when they were arrested. When questioned in course of their examination during their trial, appellants Mubarik and Dosoo denied that they had any injuries on their persons at the time of their arrest, while appellant Ahmad went so far as to say that he had received the injury, that was found on his person, in course of a fight with accused Roshan one day before the day of the occurrence. In view of the medical evidence, however, there is no doubt that the injuries referred to above at the time when they were arrested. It has also been pointed out by the learned counsel for the State that the afdafdasdloin cloth of appellant Mubarik, which was secured from his person at the time when he was arrested, was found by Chemical Examiner to have been stained with human blood. Therefore, it is urged that this was an additional factor to indicate that liv, had participated in the commission of these murders. The learned Additional Sessions Judge has, however, not relied on this piece of evidence against him on the ground that according to mashir Muhammad Bakhsh, appellant Mubarik along with his son accused Roshan had helped others in the removal of the dead bodies from the scene of offence. Therefore, it was likely that his clothes, had become blood‑stained while he had handling with them. We see no reasons to take a different view on this point. (23 sic). Having gone through the prosecution evidence we find that Haji Din Muhammad and his sons had been having a quarrel with appellant Mubarik, brother of appellant Dosoo for some time before the occurrence under consideration. According to Haji Din Muhammad this quarrel had its origin in his promise to give him 5 jaribs of his land from Survey No. 248, about 20 years ago when he was married to his daughter. Mubarik, however, had not fulfilled his promise during her lifetime on one excuse or tLe other. He had, in spite of his persistent demand, evaded acting upon that promise even after she had died about five years before the occurrence under consideration. That is why the relations of Haji Din Muhammad and his sons on one side and Mubarik and his relations on the other, had become rather strained even before they had been forced to leave the village on account of the enticement of Ms t. Kouri by Uris. After her enticement, it appears, a demand was being made by her husband, Ghulam Rasul, for compen?sation. In order to satisfy him, it seems Haji Din Muhammad had been pressing appellant Mubarik to act upon his promise and to pass on the five jaribs of Survey No. 248 on behalf of his family to Ghulam Rasul as compensation for what Uris had done.

24. Mubarik, it appears, had refused to listen to his protest and threats and that was why on the day of the occurrence Haji Din Muhammad, accompanied by his three sons, Janan, Muharram and Uris, had gone in a cart to the disputed piece of land where appellant Mubarik and his brother, appellant Dosoo, had raised paddy crop which had been reaped and thrashed and was ready for being removed from the thrashing floor. They had, according to his version before the committing Magistrate, as already pointed out, gone there armed, although he had not disclosed that they had any deadly weapons in their hands. His own cousin Allah Bakhsh, however, has gone so far as to say that he had found Uris armed with a gun, Janan with a pistol and Muharram with a hatchet at the time of the occurrence. They do not, however, appear to have been able to make any effective use of their weapons against their opponents. Probably they were either terrified on account of the number of their opponents or had been over‑powered by them before they could pick up sufficient courage to make use of their firearms. On the other hand, the culprits had, in all probability, appeared at the scene of offence in a body in order to drive them out and finding that some of them had deadly weapons in their hands, had rushed upon, attacked and killed.

25. Moreover, it appears that even Haji Din Muhammad was not present at or near the scene of offence at the time of the occurrence under consideration. If he were with his sons, it is quite unlikely that he would have been spared altogether and succeeded in getting away without any scratch, particularly when he was head of the family, and as a matter of fact, according to his own version, it was he who had throughout been quarrelling with appellant Mubarik regarding the five jaribs of land which he thought he was entitled to on the basis of the alleged promise made by him at the time of marrying his daughter.

26. As already indicated, both Ali Nawaz and Allah Bakhsh were, in one way or the other, interested in supporting Haji Din Muhammad and in implicating the appellants and others falsely in these murders. Their evidence, as has been indicated earlier, is discrepant and full of material contradictions. If they were present at the scene of offence at the time of the occurrence, all of them would have agreed at least on material particulars, such as the way in which the deceased had been done to death, and the persons, who had played prominent part in murdering them. But they have given entirely divergent versions, both as regards the persons who actually responsible for their deaths, and the manner in which they had been put to death. The word of such witnesses in support of a version like that of Haji Din Muhammad could hardly be accepted as reliable against the appellants.

27. It is no doubt true, as has been emphasised at an earlier stage, that every one of the three appellants was found to be having an inquiry on his person. These injuries, according to Dr. Qadir Bakhsh, who examined them in course of the investigation were simple and could have been either self?-inflicted or self‑suffered. All the three appellants were naturally questioned about their injuries. Two of them, namely, appellants Mubarik and Dosoo, denied that they had any contusion or mark on their person, while Ahmad said that his injury was due to a fight he had with Roshan, one day earlier. Even if their version is not considered as acceptable, there is no doubt that their injuries, as found by Dr. Qadir Bakhsh were only simple but also almost insignificant and trivial in their nature, and, therefore, could hardly have been the result of the blows given by their opponents with lathis or hatchets in course of an occurrence of the type under consideration in this case. We do not, therefore, think that these injuries give support to the evidence of Haji Din Muhammad, Ali Nawaz and Allah Bakhsh who have been examined as eye‑witnesses of the occurrence in this case.

28. In view of these considerations, we allow this appeal and acquit the appellants, setting aside their convictions and sentences including the sentences of death passed upon in this case. K. B. A./A. H. Appeal accepted.