1976 P Cr (PLP)

K. M. A. SAMDANI, J. ‑This judgment will dispose of Murder Reference No. 112 of 1973 and Criminal Appeals Nos. 252 and 253 of 1970. Criminal Appeal No. 252 has been field by Allah Bakhsh convict while No. 253 by five persons Bakhar, Ilahi Bakhsh, Muhammad Bakhsh, Musa and Faqira out of whom Bakhar appellate died In Jail. These six persons were convicted on the 27th of April 1970, by Mr. Muhammad Hussain, Additional Sessions Judge, Dera Ghazi Khan under sections 148, 302 and 307, P. P. C. read with section 149 of the Code. The learned Additional Sessions Judge sentenced each of them to death under section 302 read with section 149, P. P. C. with the sole exception of Bakhar appellant who is no more whom he sentenced to transportation for life in view of his advance age. The appellants were also sentenced to 7 years' and 3 years' R. I. each under sections 307 and

148. P. P. C, respectively. The appellants had been tried, alongwith another person Bahar who was acquitted, on the charges of murdering four persons, namely, Ahmad Bakhsh, Ghulam Hussain, Mewa and Nabi Bakhsh and causing hurt to Sohna P. W. after having armed themselves with deadly weapons and formed themselves into an unlawful assembly.

2. The facts leading to the conviction, as brought on record by the prosecution, are as follows :‑ Ghulam Hussain deceased had a wife Mst. Bharawan by name who developed illict relations with one Ramzan and eloped with him. But two or three days after the elopment, she was restored to Ghulam Hussain deceased. However, according to the tribal custom of the Blochis, Ghulam Hussain deceased and his relatives demanded com pensation in cash or in kind from the said Ramzan and his tribe. The latter refused to compensate them. Thereupon, the matter was taken to the Khosa Sardars of the area for settlement. On the 28th of November 1968, the fateful day, the elders of either party went to Bahadur Garh to meet the Sardars in connection with the same dispute but as the elders of the appellants returned and those of the deceased did not. Siddique P. W. (complainant) alongwith Ahmad Bakhsh, Ghulam Hussain, Mewa and Nabi Bakhsh deceased and Sohna and Hassan P. Ws. set out to find out the cause of delay in the return of their relatives. When they reached near Dajli Bund, they were way laid by the six appellants Allah Bakhsh, Ilahi Bakhsh, Muhammad Bakhsh, Moosa, Faqira and Bakhar alongwith Babar, the acquitted accused, Ramzan, with whom Mst. Bharawan had eloped, and one Ghulam Haider. They were all variously armed with swords and guns. The appellants and their companions attacked the complainant party, injured Sohna P. W. and Nabi Bakhsh deceased and killed Ahmad Bakhsh, Ghulam Hussain and Mewa deceased on the spot. However. Nabi Bakhsh deceased also succumbed to his injuries later but Sohna P. W. survived and recovered. In the course of, the incident the said Ramzan and Ghulam Haider also sustained injuries, according to the F. I. R., but it was later admitted by the prosecution that Ghulam Haider had also lost his life on the spot while Ramzan to his injuries later. Then either party approached the police and reported the incident in their own way. The two versions are con siderably different from each other. The defence version as contained in the statement of Faqira appellant is that on the fateful day Ghulam Hussain and Mewa deceased had murdered Mst. Bharawan by strangulating her after her restoration to her husband Ghulam Hussain deceased‑ When Faqira appellant and Bahar accused came to know of this murder, they proceeded towards the Police Station to inform the police. But they were way laid on their way by Mewa, Nabi Bakhsh. Ghulam Hussain and Ahmad Bakhsh deceased alongwith Hassan. Sohna and Siddique P. Ws. near Bund Dajwala who started firing at them. Hearing the reports of the fire‑arms Ramzan and Ghulam Haider were attracted to the spot. They were armed with swords. A fight ensued and then, it is to be presumed, as a result of the fight four persons from one side and two from the other lost their lives and some sustained injuries. From the medical evidence on record it is clear that Mst. Bharawan was strangulated on the same day as the other six homicides were committed. But it is significant that there is no mention of the death of Mst. Bharawan in the first information report although she was the source of the whole trouble. Secondly, the mention of the death of Ghulam Haider is also conspicuously missing from the first information report. It has no doubt been stated that Ramzan and Ghulam Haider sustained injuries in the course of the fight but there is no explanation as to how they came by their injuries while it appears from the report that the complainant and his companions were proceeding towards Bahadur Garh very innocently with no weapons on their persons. Subsequently however, the eye‑witnesses examined at the trial tried to fill up these gaps but without much success. Out of the five persons, namely, Sohna, Hassan, Siddique, Gehna and Khuda Bakhsh, who admittedly witnessed the occurrence, only three were examined, namely, Siddique (P. W. 13) the com plainant, Gehna (P. W. 14) and Hassan (P. W. 15). Sohna P. W. was given up for reasons best known to the prosecution. Out of these three witnesses Siddique and Hassan were amongst the accused persons in the cross case. It is, therefore, obvious that reliance could not be placed on their testimony without independent corroboration. Being accused of murders themselves, they laid, as could be expected, the entire blame at the door‑steps of the appellants. Gehna P. W. was not accused one way or the other. But he admits that Ghulam Hussain and Ahmad Bakhsh deceased were his first cousins. It is, therefore, evident that he is also an interested witness. However, despite his relationship with two of the deceased and despite the involvement of the other two witnesses in the cross‑case, their testimony could be taken into consideration for whatever it would be worth had they not made it absolutely worthless by making improvements over their previous statements and creating inconsistencies. The most important thing in the statements of these witnesses is the manner in which they explain the injuries and deaths of Ramzan and Ghulam Haider. According to their depositions before the trial Court, Ahmad Bakhsh deceased hit Ghulam Haider with a sota on his head and killed him on the spot but this fact was neither mentioned before the police nor before the committing Magistrate. Secondly, they insist that only Mewa deceased amongst them was armed and the weapon that he carried was a sword and that it was the said Mewa who injured Ramzan fatally. But again, there is no mention of Mewa being armed with a sword either in their statements before the police or before the Committing Magistrate. Thirdly, Hassan (P. W. 15) stated before the Committing Magistrate that it was he and the other P. Ws. who had assaulted Ghulam Haider and Ramzan in self‑defence. This statement made before the Committing Magistrate is so completely inconsistent with the defence version put forward at the trial that it renders the entire explanation regarding the deaths of Ramzan and Ghulam Haider unbelievable.

3. We are, therefore, of the view that on the basis of the evidence adduced by the prosecution it is not possible to hold that the appellants and their companions were the aggressors. Thus we are left with two other possibilities only i.e. either the complainant party was the aggressor and the appellants and their companions acted in self‑defence or both had come armed with weapons to Bund Dajiwala for a test of strength and a final show‑down over the questions of Mst. Bharawan's abduction, her murder and the claim of compensation arising there from. But there being no evidence to indicate what had actually happened, we cannot send the appellants to the gallows on the basis of conjectures, or even to the prison for that matter.

4. Accordingly we refuse to confirm the sentences of death, accept the appears, set aside the convictions and sentences and acquit the appellants. Appeal allowed.