MUHAMMAD AFZAL CHEEMA, J.-Vide his judgment dated 22nd May 1968, the Additional Sessions .Fudge. Sargodha, con--victed the three appellants Shera (38), Bashira (38) and SaeeD (58) for an offence under section 302/34, P. P. C. With an award of the sentence of death to each of them. He, however, acquitted their four co-accused whose acquittal has not been challenged before us. The three convicts have appealed against their conviction and sentence and we have also before us a reference under section 374, Cr. P. C. For confirmation of their sentences of death. This judgment will dispose of both the appeal as well as the murder reference.
2. The simple facts of the case are that the parties who were Gondals of village Khan Muhammadwala of Police Station Bhera, District Sargodha, have an admitted background of blood feuds dating back to about three decades. About twenty-eight years ago, one Mahla father of Shida, the deceased in this case, was murdered, by Bati, father of Shera appellant, Karam A.I, the father of Nazira, the acquitted co-accused and one Lala. The accused were acquitted by the Sessions Judge. Later in the year 1945, Manak, an uncle of Shera appellant was murdered and Sohni an uncle of Shida deceased and six others were challaned who were also acquitted by the Court of Session. In 1954, the aforesaid Lala who was the sister's son of Bati, father of Shera appellant, was murdered and Shera complainant, Shida deceased and four others were tried for the murder. They were also acquitted by the learned Sessions Judge. A month prior to the occurrence, proceedings under section 107/ 151, Cr. P. C. Had been resorted to by the police against members of both the parties on the complaint of Shida deceased.
3. It is in this background of a long standing enmity that on 22nd April 1966, at degerwela when Shida deceased was returning from Killa No. 11 of square No. 57 carrying a load of fodder on his head, that Shera appellant whose behk was close by at point No. 2 of the- site plan (Exh. P. C.`, caught hold of him from his waist and threw him on the ground. The bundle of fodder P. 1 which was tied in the safa P. 2 of the deceased naturally fell from his head. At this juncture, the other six accused including Bashira and SaeeD appellants suddenly emerged from the wheat crop in the adjacent Killa No. 19 of Square No. 57. Bashira appellant was armed with hatchet, SaeeD with a lathi, Amir had a spear while Nazira, Dosa and Mutalli were empty handed and confined only to exhortation. Bashira appel--lant opened the attack by giving a hatchet blow on the neck of Shida deceased while the deceased was lying on the ground. In the meantime, Shera appellant also picked up a hatchet from his behk and-gave hatchet blows to the deceased. Bashira and SaeeD gave more blows to him while only one spear blow was attributed to Amin The occurrence was seen by Shera complainant (P. W. 5) sister's husband of deceased, Mst. Bano P. W. 6 wife of Manak, a brother of the deceased and Gulla P. W. 7 another brother. According to the prosecution, they had a joint behk in Killa No. 11 of square No. 57 and it was to this place that the deceased was returning with a load of fodder on his head when he was suddenly attacked. According to the prosecution version, Mst. Bano who had assisted the deceased in the cutting of fodder in Killa No. 14 followed him at some distance whereas Shera and Gulla P. Ws. Remained at the behk in Killa No. 11. They rushed to the spot and raised an alarm. On seeing them, the accused persons ran away towards the Dera of Shera appellant. Shida having received 21 injuries of which 8 were incised wounds mostly on the neck died almost instantaneously. Leaving Gulla and Mst. Bano P. Ws. At the spot, Shera ran to the village Khan Muhammadwala, sent Muhammad Akbar Lambardar P. W. 8 to the spot and himself proceeded to the Police Station Bhera where he lodged report Exh. P. L. At 8-5 p.m.
At a distance of 7 miles, which was recorded by Malik Muhammad Hayat, Sub-- Inspector. The latter was examined by the Committing Magistrate but died before the commencement of the trial and as such his statement was transferred to the Sessions file under section 33 of the Evidence Act.
After having recorded the report Exh. P. L., Malik Muhammad Hayat, Sub-Inspector reached the spot at 10-15 p.m. The same night, prepared injury statement and inquest report of the deceased and sent the dead body for post-- mortem examination under the escort of Muhammad Afzal F. C. P. W.
2. He took into possession blood-stained earth from the spot vide memo. Exh. P. D. Witnessed by Muhammad Akbar P. W. 8 and Shera complainant. He also took into possession from the spot bundle of fodder P. 1, safa of the deceased P. 2 with which it was tied and a pair of shoes P. 3/1-2 vide memo. Exh. P. E. Attested by the aforesaid witnesses. On 23rd April 1966, the same Muhammad Akbar P. W. 8 produced before the Sub-Inspector all the seven accused at the spot. A rather unique and interesting feature of case is that at the time of their production before the Sub-Inspector, the accused carried their respective weapons of offence with them. Bashir appellant allegedly produced hatchet P. 4 which was taken into possession vide memo. Exh. P. F. Shera appellant produced hatchet P. 5 which was secured vide memo. Exh. P. G. SaeeD appellant produced lathi P.
6 which was secured vide memo. Exh. P. H. Amir the acquitted co-accused produced spear P. 7 which was taken into possession vide memo. Exh. P. W. 10/B. The clothes on the person of Shera appellant, i. e. Shirt P. 8 and Chadar P. -9 which appeared to be blood-stained were also taken into possession by memo. Exh. P. J. All the recoveries were simultaneously made on 23rd April 1966, and were attested by the same set of witnesses mentioned above. On the same date, Muhammad Afzal F. C. P. W. 2 produced before the Sub-Inspector the blood-stained clothes of the deceased, i.e. Chadar P. 10, shirt P. 11 and vest P. 12 which were handed over to him by the doctor. These were secured vide memo. Exh. P. K. The Sub-Inspector got prepared site plan Exh. P. C. By Muhammad Anwar Patwari P. W.
4. All the six parcels relating to the blood-stained earth, the weapons recovered from the accused and the blood-stained clothes of Shera appellant, were received in the office of the Chemical Examiner on 26th April 1965. Vide Chemical Examiner's report Exh. P. O. The earth and the two hatchets recovered from Shera and Bashir appellants were found to be stained with blood while the clothes of Shera appellant, the spear produced by Amir co-accused and the stick produced by SaeeD appellant were not found to be so stained. The blood on the scrapings from hatchet P. 4 produced by Bashira appellant was found to be disintegrated and as such its origin remained undeter--mined whereas the blood on the earth and the scrapings from hatchet P. 5 produced by Shera, appellant was found to be of human origin vide Serologist's report Exh. P. Q.
4. On 23rd April 1966, at 12 noon, doctor Safdar A.I, Medical Officer, Civil Hospital, Bhalwal performed post-mortem examination on the dead body of Shida deceased and rile his report Exh. 1'. M. He found it to be dead body of a well built young man aged 25/26 years with the following injuries on his person :-
(i) An oblique incised wound 3--" x --" bone deep on the right side of neck 1" below the right car, cut fracture of the right lower jaw was present.
(ii) An oblique incised wound 3" x --" x vertibral column deep on the right side of neck communicating with injury No. 1. All the vessels, muscles, nurves till the vertibral column were cut along with the spinal cord.
(iii) An incised oblique pound 3--"x 1" vertebral column deep on the hinder part of injury No 2 and merging with it. All the nurves, vessels, muscles and bones (vertibral column) wore cut.
(iv) An incised wound 22" x 2" x skin deep on, the upper part of injury No. 3 on the occipital region of head, right side parallel with injury No. 3.
(v) An incised wound 3" x 1" into skin deep on the right side of neck on the lower part and parallel to injury No. 3.
(vi) An oblique incised wound 1" x --" muscle deep on the right side of neck near the trunk.
(vii) An incised wound 2--" x --" x skin deep on the right side of tire neck 2" above the middle of clevicle.
(viii) An abrasion 5" x 4--" on the top of the right shoulder.
(ix) An abrasion 1" x --" on the back of right shoulder.
(x) An oblique contusion mark 7" x 1" on the back of right chest below the scapula.
(xi) An abrasion --" x --" on the right renal angle.
(xii) An abrasion --" x --" on the outer side of right hip.
(xiii) Two abrasions of the right index finger first phalanx.
(xiv) An incised wound 3" x --" skin deep on back of left shoulder transvers in direction.
(xv) A contusion mark 3--" x 1" on the back of right elbow.
(xvi) A contused wound --" x -- skin deep on the right side of the head parietal region 2--" above the right ear.
(xvii) A contused wound oblique in direction 2" x --" scalp deep 2--" behind injury No. 16 on the right occipital.
(xviii) An oblique contusion mark 2--" x --" on the inner side of right thigh middle part.
(xix) An abrasion --" x --" on the right thigh 5" below injury No. 18.
(xx) An abrasion 1--" x 2" x --" on the right leg lower 1/3rd part.
(xxi) An abrasion --" x --" below the right knee joint.
The stomach was empty containing only an oz. Of water fluid. The urinary bladder contained no urine. In the opinion of the doctor, death had been caused due to injuries Nos. 3 and 4 as a result of shock and haemorrhage. Injury No. 1 was grievous and the rest mere simple. Injuries Nos. 1 to 7 and 14 were inflicted with sharp-edged weapon and the rest were with blunt weapon. Injuries Nos. 3 and 4 were sufficient individually and collectively in the ordinary course of nature to cause death. The probable time between death and post-mortem examination was between 12 to 24 hours. Injury No 6 could have been the result of a spear blow. Since only one injury was attributed to Amir, the acquitted co-accused who was armed with a spear, it was presumably for this reason that in order to bring the medical evidence in accord with the prosecution version, the Public Prosecutor sought to bring on the record the aforesaid opinion of the doctor in respect of injury No. 5. On cross- examination by the defence, however, the doctor stated as follows :- "As far as I remember no query was made from me by the police about injury No. 6 of having been caused by a spear. There is no such query on the duplicate file of the case. It is correct that the spear blows generally cause penetrating, spindle shaped or punctured wounds. Such wounds are described as punctured wounds. I have not described any of the injuries on the dead body of Shida deceased as punctured wound. I correctly described my observation of the injuries in the post- mortem examination report. It is correct that I would have described a punctured wound as punctured wound if I had observed any one. The abrasions were the result of friction against some hard substance. The duration described by me of the injuries is 12 hours minimum and 21 hours maximum. I cannot fix the exact time of death."
At the trial, from the trend of cross-examination and the suggestions made therein to the prosecution witnesses, it was sought to be indicated that the deceased had some other enemies also in the village; that 5/6 years prior to the occurrence Shida deceased and his brother Manak were challaned for the murder of one Muhammad son of Hayat Gondal of their village; were convicted in the first instance but were ultimately acquitted by the Supreme Court. It was also suggested to Shera complainant that Killa No. 11 where at the relevant time, his cattle were stated to have been tethered, did not belong to him but to others, namely, Gahra, Lala and Sardara and that the story of behk in Killa No. 11 was merely a concoction and was introduced to justify his presence as well as that of Gulla P. W. It would be pertinent to refer to the cross-examination directed against Akbar P. W. (who had obviously played a significant role in the case firstly as having reached the spot on the intimation by Shera complainant, secondly for his association with investigation of the case and thirdly for having produced the appellants before the Sub-Inspector with their respective weapon).
It was admitted by Shera complainant that Akbar P: W. Be--longed to his party and was bound down under section 107/151, Cr. P. C. Alongwith the complainant and others be one side and the accused persons including the appellants on the other but this according to Shera happened 16/17 years before. It was again admitted that Manak father of Muhammad Akhtar P. W. Had appeared as a prosecution witness against the accused in the abduction case of Mst. Fatima, a sister of the deceased. Akbar P. W. 8 had also to admit his enmity with the appellants and their co-accused. He stated that one Fatta uncle of Bashir appellant and Nazir acquitted co-accused had purchased some land from one Sohni and that he (Akbar) had brought a suit for pre-emption of that land which was still pending. He admitted that at the time of the occurrence he was not a Lambardar and that Khan Muhammadwala was a big village. However, it would be useful to reproduce what appears to us to be the most interesting and rather preposterous part of his statement wherein he admitted to be inimical towards the appellants and yet successfully manoeuvr--ed to make them surrender to him for being produced before the Sub-Inspector and also persuaded them to go and bring back their weapons and blood-stained clothes "I was alone with the police when I was directed by S. I. To produce the accused. I did not tell the S. I.
That as I was inimical to the accused I should not be deputed to go to their deras so that I may not get murdered. I was deputed to bring the accused by the S. I. When he was present at the spot.
Dera of Karamali is at a distance of half a mile from the spot. The accused persons were not present at that Dera when I reached there Karam A.I was alone there. Karam A.I told me to sit at his Dera till he could bring the accused. I sat at the Dera of Karam A.I for half an hour till the accused were produced before tine. I do not know from where Karam A.I had brought the accused. I told the accused that they had to put the blood--stained clothes which they were wearing at the time of occurrence and had to also carry the weapons with which they had committed the murder. The accused told me that the blood--stained clothes and weapons were lying at the Dera of Shera from where they picked up the blood-stained clothes of Shera accused and the respective weapons of the respective accused. The accused were then taken by me to the S. I. Shera accused produced the blood-stained clothes which he had carried from his Dera before the S. I. The accused including Shera also produced the weapons that they had carried with them."
"None was present at the Dera of Shera when I took the accused there. I stood at the door of courtyard of Shera accused when the accused went inside and brought out the weapons. I do not know from where the accused had picked up their respective weapons. Many people were present near the police when I produced the accused persons before the Sub---Inspector."
"Shera accused was wearing the blood-stained clothes when he appeared before me and was later taken to the Sub--lnspector."
5. The position taken up by the appellants was that one of denial simpliciter. They pleaded innocence, ignorance and absence raising no specific plea in defence. No evidence was led in defence.
6. While otherwise placing full reliance on the testimony of the three witnesses who were admittedly interested and inimical towards the accused, the learned Additional Sessions Judge, acquitted Dosa, Mutalli and Nazira to whom only exhortations were attributed, for want of corroborative evidence. Amir was also acquitted for the reason firstly that the existence of a punctured wound on the dead body of Shida was doubtful and secondly that the spear produced by him was not found to be stained with blood. As regards the present appellants, the evidence of the recoveries of hatchets P. 4 and P. 5 and lathi P. 6 was found to offer sufficient corroborative evidence notwithstand--ing the disintegration of blood on hatchet P. 4 allegedly produced by Bashir appellant. Reliance was placed in this regard on PLD 1965 SC 363 and 1968 P Cr. L J (April 1968). In this view of the matter, the offence was considered to have been fully brought home to the present appellants who is stated earlier were convicted under section 302/34, P. P. C. With an award of death sentence each.
7. The learned counsel for the appellants raised the following contentions before us :-
(i) That when four out of the seven accused had been acquitt--ed on the basis of the same evidence, the principle of indivisibility of credibility could be justifiably invoked in the case.
(ii) That the three eye-witnesses were interested and inimical towards the appellants and their testimony could not have formed the basis of conviction without independent and unimpeachable corroborative evidence which was not available.
(iii) That the evidence of recoveries was simply absurd and incredibly false and as such no reliance could be placed on it.
8. Having considered the contentions raised by the learned counsel, we find a good deal of susbtance in them. From the perusal of the impugned judgment, it appears that the three eye-- witnesses, namely, Shera, Gulla and Mst. Bano have been fully relied upon and it was only for want of independent corroborative evidence that the acquitted accused were considered entitled to benefit of doubt and as such the invocation of the principle of indivisibility of credibility would not be justified but one cannot lose sight of the unique feature of the case that the proverbial Lalkaras were attributed not to one or two but to three of the seven accused persons which is something extremely unusual and difficult to believe. Accordingly, at the very outset, the possibility of the false implication of at least some of the accused persons in the F. I. R. Cannot be ruled out. On the other hand there appears to be no doubt or dispute regarding the time and place of occurrence.
Furthermore, the assessm ent of the testimony of the eye-witnesses even though interested, made by the trial Court which has the advantage of studying their demeanour cannot be lightly brushed aside. The crux of the mater, therefore, is as to whether independent corroborative evidence of an unimpeach--able character, on which the Courts have invariably insisted in such cases as a rule of prudence is available in the case justifying an order of conviction. In Wasiullah v. Mirza A.I and others (PLD 1963 SC 25) of which the facts also appear to be somewhat similar, it was observed by their Lordships as follows: "On further examination, it appears that the case is not free from doubts of a general character these are caused by (1) the false inclusion of the name of Hassan All at the outset, and the circumstances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged crime empties and (3) the dubious manner of the arrest of five of the accused persons, and of the recovery of weapons and cartridges, both live and empties from them. When such be the case, and the main direct evidence be also that of interested persons, i. e. Enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons beyond reasonable doubt."
The same principle was reiterated by their Lordships in Thoba and another v. The State (PLD 1963 SC 40), it was observed by their Lordships as follows :- "In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source or if such a source be not available, it must be supported by some strong circumstance, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected."
The patent absurdity of the evidence regarding the production of the accused persons including the appellants by Muhammad Akbar P. W. 8, their sworn enemy who should be the last person and whom they could not trust does not only call for a closer and cautious examination of the evidence that has also completely shaken our confidence in the honesty and straightforwardness of the investigation. The evidence of recovery in our opinion is not worth a moment's consideration particularly in view of the preposterous and unprecedented rehearsal resorted to by the appellants and other at the instance of Muhammad Akbar which unmistakably furnished direct incriminating evidence against them. We have yet to see a mere clumsy fabrication which has com--pletely exposed the hollowness of the investigation and yet strangely enough this evidence appears to have been unhesitating--ly accepted by the learned trial Judge despite the fact that stick P. 6 was not found to be stained with blood at all and the origin of blood on hatchet P. 4 allegedly produced by Bashir appellant had remained undetermined owing to disintegration. Ghulam Rasul v. A.I Akbar and others (PLD 1965 SC 363) relied upon by the learned trial Judge in this regard proceeds on entirely different facts. In that case, their Lordships of the Supreme Court bad found the evidence of recoveries completely reliable and obviously, there--fore, nothing hinged upon the report of the Serologist who was unable to analyse the blood-stains owing to disintegration. The following observation of their Lordships would make the position quite clear :- "As to the question of the correctness of the conviction we are fully satisfied after reference to the record that the evidence of the eye-witnesses in this case is unimpeachable. In addition, there is evidence of the recovery of blood-stained clothes from the persons of A.I Akbar accused when he was arrested on the 20th December 1961, and of the recovery of a blood-stained hatchet from the possession of Inayat who was also arrested on the same day. A toka was recovered from the possession of A.I Akbar and another from the house of Bashir, but these were found not to bear any blood-stains on the clothes and hatchet because by the time these articles reached him the blood had disintegrated. However, so far as they go these recoveries serve to support the direct evidence which we find was accepted by the Courts below and as to which counsel for the accused has not been able to advance any reason why it should not be believed."
Again the two authorities relied upon by the learned Additional Sessions Judge, in accepting the evidence of the recoveries, Nawab and three others v. The State (PLD 1965 SC 522) and Sardar A.I and others v. The State (PLD 1967 SC 217) proceed entirely on distinguishable and different facts.
The last mentioned authority deals with two aspects which are relevant for the purposes of the instant case. In the first instance owing to delay in the analysis of the blood-stained exhibits the origin of blood could not be determined by the Serologist but since there was otherwise a sufficient evidence on the record to warrant conviction the Serologist's report failing to determine the origin of blood was not allowed to stand in the way of conviction.
It was observed by their Lordships as follows :- "As, it happens, in this case, the direct evidence is of such a degree of reliability that support from such circumstantial evidence of material exhibits was not entirely necessary for accepting the version sworn to by Abdul Ghani. "
The second point adverted to by their Lordships relates to the surrender of accused persons to respectables for being present--ed before the police in order to avoid rigours of investigation. It was observed by their Lordships :- ". . . . . It is not unnatural that such persons should make over incriminating evidence, so that further pressure upon them or their relations should cease."
We respectfully obey this observation of the Lordships but the question is whether the circumstances of the instant case parti--cularly in view of the enmity of the appellants with Muhammad Akbar P. W. The factum of their surrender to him could be accepted as true. Coupled with this, is the novel mode of rehearsal resorted to by the accused at the behest of Muhammad Akbar which is simply preposterous. In this authority their Lordships had also considered an earlier authority Nawab and others v. The State (PLD 1965 SC 522). The following observations of their Lordships would clearly distinguish the facts of the two cases :- "The evidence of Mir Khan has been rejected in part, that is as to the extra judicial confession, by the trial Judge and in whole by the learned Judges of the High Court. No good ground appears why this evidence should have received such treatment. There is no doubt that he produced the accused persons before the police, and it is equally true that accused persons, in such case, who feel that there is some justification for their crime, often take such steps so as to be produced before the police by some person, such as a nekmard, whose intervention they expect would save them, and possibly their families as well, from the rigours of investigation. Mir Khan is a tenant of Nur Muhammad Shah, but this is immaterial, for Nur Muhammad Shah is not shown to be an enemy of the accused persons, and moreover a great deal of the land in the area is owned by him.
There is nothing unnatural about Mir Khan's statement, and even though by itself, in respect of the confession it might not be regarded as sufficient for sustaining the case against the accused persons, yet there would seem to be no good reason why the whole of his evidence should have been discarded."
9. The upshot of the discussion, therefore, is that in view of the possibility of the false implication of some of the accused at the very outset in the case with the unique feature of attribution of exhortations to three of them, coupled with the doubtful existence of a spear injury on the person of the deceased and lastly the conspicuous lack of independent and unimpeachable) evidence, we are clearly of the view that the appellants are fully entitled to the benefit of doubt. In consequence, we allow the appeal and set aside their convictions and sentences. The appel--lants be released forthwith from the Jail, if not wanted in any other case. The sentence of death is not confirmed.