1. SHAFI-UR-REHMAN, J -Leave to appeal was granted to examine whether the ocular testimony adduced against the appellants convicted of the offences under sections 302/323/34, P. P. C.
2. Required independent corroboration and, if so, whether that independent corroboration was available in respect of each convict.
3. The appellant Ahmed, an uncle by relation of Hayat deceased, suspected the latter of maintaining illicit relations with his daughter Mst. Rasoolan. Efforts of Hayat and his other relatives to convince Ahmed that it was not so had failed. On the 9th of April, 1974 at about 10 a.m. The deceased Hayat alongwith his wife Mst. Maqboolan (P. W. 7) and their relative Rahmat was returning to the village from the dhari. Hidayat (P. W. 5), a brother of Hayat deceased, was at some distance behind them.
4. Ahmed appellant came across them while they were on the path leading to village abadi. He called out to his companions asking them to finish Hayat as he had played havoc with his honour.
5. The two sons of Ahmed, Abbas armed with a gun And Arifwith a soti, appeared on the scene alongwith Nemat (acquitted accused) also armed with a gun and Karamat appellant armed with a soti. Abbas fired the first shot hitting Hayat on the back of his chest. Hayat fell. Rehmat, companion of the deceased Hayat, raised alarm and implored the appellants not to be so cruel.
6. Nemat (the acquitted accused) then fired at Rehmat deceased injuring him in the abdomen.
7. Abbas appellant thereafter fired the second shot at Hayat who was lying on the ground hitting him on the head. Nemat also fired a second shot hitting Rehmat on the head. Arif then gave a sota blow on the forehead of Hayat. When Mst. Maqboolan advanced to save Hayat, Karamat gave three sota blows to her. Hidayat (P. W. 5) went to the Police Station War Burton at a distance of 2 1/2 miles from village Jilani Klan where the occurrence had taken place and lodged the report at 11 a.m. From the spot four empties of '12 bore were recovered, two from the spot where Hayat was lying dead and two where Rehmat was lying dead. The appellants were arrested on 15-4-1974 and at their instance a gun Exh. P. 6 was recovered from Abbas and another P. 7 from Nemat on 18-4- 1974 and a soti from Arif. The empties recovered from the spot were despatched to the expert on 13-4-1974 received by him on 15-4-1974 and the guns recovered from Abbas and Nemat were received by him on 23-4-1974. He found and so reported that all the four empties recovered from the spot had been fired from the gun Exh. P. 6 recovered at the instance of Abbas. Mst. Maqboolan had received two lacerated wounds of small dimensions and there was a painful swelling in the parietal area. All the injuries found on her person were simple. The post-mortem of Hayat and Rehmat showed that they had received fire-arm wounds from a close range resulting in instantaneous death. Ahmed on his arrest was also found to have a healing wound on the left lumbar region and Arif had a wound caused within 48 hours of his examination, which took place on 16-4-1974.
8. The appellants denied he motive, their participation in the occurrence and alleged that they had been falsely implicated in the case.
9. The trial Court implicitly believed the ocular evidence with regard to the firing by both Nemat and Abbas, rejected the recovery of guns from Abbas and Nemat and found the expert evidence with regard to the use of empties from the same gun Exh. P. 6 of no consequence. On the basis of ocular evidence the four appellants as well as Nemat were found guilty of offences under sections 148, 302/149 (two counts) and 323/149, P. P. C. And convicted accordingly. Nemat and Abbas were sentenced to death, others to life imprisonment on the murder charges.
10. On appeal and while dealing with the, confirmation of the death sentence, the learned Judges in the High Court believed the recovery of the empties and the guns and the opinion of the expert relating thereto and gave Nemat the benefit of doubt and acquitted him. As regards the ocular testimony, it was held that as the witnesses were not interested corroboration was not necessary, yet found corroboration in the motive and the medical evidence. In view of the acquittal of Nemat conviction under section 148, P. P. C. Was set aside and under the substantive offences it was altered from one read with section 149, P. P. C. To one read with section 34, P. P. C. In other respects the sentence awarded by the trial Court was maintained.
11. There were in this case four eye-witnesses. Mst. Maqboolan, the injured eye-witness, was the wife of Hayat deceased. Hidayat (P. W. 5) was the brother of Hayat deceased. Masta (P. W. 6) was a former tenant of Hayat while Muhammad Ashraf (P. W. 14) was a son of Hayat deceased aged about nine years. All these eye-witnesses had consistently charged Nemat for firing at Rehmat deceased with a gun which was said to be different from that used by Abbas appellant. In believing the recoveries and the expert opinion and giving effect to the same, the learned Judges in the High Court rejected a material part of the statements of all these eye-witnesses m so far as the implication of Nemat was concerned. This fact itself detract from the intrinsic worth of their testimony as ocular witnesses. The coal conclusion that could naturally be drawn after so rejecting a part of then evidence was that either they were not present at all at the spot and had no witnessed the occurrence, or that they had implicated falsely others who had not participated in the occurrence. As the occurrence had taken place during the morning hours of April, not very late in the day and on a village path, it is natural that there should have been people present. Mst.
12. Maqboolan and others had properly accounted for their presence and both the Courts had believed their presence at or near the spot at the time of occurrence. This much having been established, their testimony, of necessity, required independent corroboration because it had been found to be a variance in material particulars in so far as they had implicated Nemat.
13. Corroboration has to be looked for and found not only where the witness are interested but also in cases where by itself the ocular testimony is not s sound and doubt-free as to independently suffice for the conviction of the accused.
14. The learned trial Judge disbelieved the recovery and the strongest reason that weighed with him was that Sarwar, the recovery witness, was an uncle of the deceased. In respect of ocular evidence such a relationship, or even a closer one, was present but this was not in itself considered sufficient to taint the statements of the eye-witnesses. In case of recovery witness the relationship of the recovery witness with the deceased was given undue consideration for discarding his statement.
15. No intrinsic defect was found in the testimony of Sarwar. He was a Nambardar and could participate in the recovery. It was not noted by the trial Court that the empties recovered from the spot had been handed over to Muhammad Mansha, Foot Constable, on 13-4-1974 and as he could not get the docket on that very day, he had deposited them back with the Muharrir of Police Station Sadar and handed them over to the expert on 15-4-1974. The empties recovered from the spot were beyond the reach of the Investigating Officer when the recoveries of the guns from Abbas and Nemat took place. In this background there was hardly any reason to reject the recoveries or the opinion of the expert in the matter. The motive provided corroboration only in respect of Hayat and not for the murder of Rehmat. Hidayat had attributed three gunshot injuries to Hayat deceased at the bands of Abbas. Rut at the trial he improved upon his statement. All these infirmities of the prosecution case made it imperative that there should be independent corroboration available of the ocular evidence for sustaining the conviction of the appellant. It was available only against Abbas in the form of the expert opinion so far as the murder of Hayat was concerned, and there was none in respect of Rehmat's murder.
16. In the circumstances and for the foregoing reasons the appeal is accepted in so far as Arif, Ahmed and Karamat appellants are concerned and their conviction and sentence on all charges is set aside. The conviction of Abbas for the murder of Hayat is maintained under section 302, P. P. C. As, according to the prosecution case itself, except for the family honour there was no other/ reason which occasioned the murder, it was a case. Where death sentence should not have been imposed in so far as the murder of Hayat was con--cerned. So while maintaining his conviction under section 302 we set aside the sentence of death and substitute it by life imprisonment and a fine of Rs. 5,000, or in default of fine 3 years' R. I. In case the fine or any part of it is recovered it shall be paid as compensation to the heirs of Hayat deceased. The other appellants whose conviction and sentence have been set aside shall be released forthwith.