MUHAMMAD HASSAN SIADHER, J.-Ahmad Khan (55) son of Allah Ditta, caste Tarar (Jat) and his servant Manzoor Ahmad (40) son of Jewan, Mirasi by caste, residents of Chak No. 33, Tehsil Phalia, District Gujrat have been held guilty by learned Sessions Judge, Gujrat, for the offence under section 302/34, Pakistan Penal Code for having on 24th June, 1974 at Chhahwela I(7/7-30 a.m.) committed murder of Bashir Ahmad deceased in a field at short distance from the village. Ahmad Khan was condemned to death plus fine of Rs. 500, in default rigorous imprisonment for one year.
Manzoor Ahmad who had played equally effective role in the crime was, however, awarded alternate and lesser sentence of imprisonment for life with fine of Rs. 500 and also ordered to suffer further imprisonment for one year in case of non-payment of fine. The accused have appealed to challenge judgement of learned Sessions Judge tad the case is also before us for confirmation of sentence of death imposed on Ahmad Khan. Muhammad Arif complainant in the case, and a real brother of the deceased has also, filed Revision for enhancement of sentence of Manzoor Ahmad appellant also to that of death. The appeal, the reference and revisional application are disposed of by this judgment.
2. The case as put forth by the prosecution seas that Mst. Sakina Bibi a sister of Bashir deceased was married to Sardaf Khan, a younger brother of Ahmad Khan appellant nine-ten years before this incident allegedly in exchange of the hand of Mst. Maqsood Bibi a young daughter of the appellant whose nikah was performed with the deceased but not entered formally in the relevant register as required by law. Mst. Maqsood Bibi was about four years old at the time of her alleged nikah with the deceased. After she came of age, she lived with the deceased for 2,14 days about three months before the occurrence and then returned to the house of her parents. Bashir Ahmad deceased and his father went to bring back Mst. Maqsood Bibi a few days before the occurrence which Ahmad Khan appellant had declined. The deceased had instituted a suit in the Court of Civil Judge at Mandi Baha-ud-Din and got a stay order restrain--ing Mst. Maqsood Bibi from contracting second marriage. At the tint of incident the deceased accompanied by his young r brother Muhammad Arif (P. W. 10) was proceeding to their Dera to milk) the cattle which is at a distance of 4-5 furlongs from the village. A ta reached close to the Bank of Jahan Khan and Muhammad Ali (P, Ws. 11-12) in the field of Sultan Muhammad Arif stopped to Court ate and the deceased proceeded onward. Ahmad Khan appellant armed with '12 bore double barrel gun and Manzoor having knife in his hand emerged from the side of a water course. Ahmad Khan appellant shouted at the deceased that be will not be spared today and fired at him to the chest. The deceased turned towards the east and tried to run away but the appellant repeated the shot which hit the deceased in the back dropping him on the ground. Ahmad Khan appellant exhorted Manzoor Ahmad accused and the latter jumped over the watercourse and dealt an injury to the deceased in the left flank. The deceased had raised his hands to ward off the blow aimed at him by Manzoor appellant and got a few injuries on his hands also. The occurrence was also witnessed by Jahan Khan and Rafiq (P. Ws. I 1-12) who were attending to their cattle in the Bank close to the place of incident. Ahmad Khan reloaded the gun and both the appellants ran away. The deceased expired shortly afterwards. Muhammad Arif (P. W. 10) left for Police Station, Kuthiala Sheikhan to report the jucident which is at a distance of six miles from the site. First Information Report (P. D.) was recorded by Raja Abdul Rasheed Sub-Inspector (P. W. 13) at 12-00 Noon. On reaching the site the Sub-Inspector collected blood--stained earth by means of memo (P. B.). Two empty cartridges of 12 bore (P. 1/1-2) which Ahmad Khan appellant had allegedly discarded at the site when he had re-loaded the gun were (taken into possession and made into sealed parcel vide memo (P. C.).
Injury statement of the deceased and the inquest report (P. H/P. J.) were prepared and the dead body was forwarded to Phalia through Zahoor 4ussain (P. W. 2), where it reached late during the night. Post-mortem examination was conducted by Dr. Nazir Ahmad Anwar (P. W. 0 next day at 8- 00 a.m. Following injuries were noticed on the dead body:--
(1) A fire-arm wound of in let 1---x 1" x going into the chest 2 --" above and medial-to right nipple, between second and third rib. Right lung was pierced. A pellet was recovered from this area.
(2) A fire-arm wound of in let 1--- x 1" going into the chest on the left side of back between fifth and sixth rib, 3" away from mid line.. Half of the middle portion of right lung was damaged. Fifth and sixth ribs were fractured. Two pellets were recovered from this area.
(3) Penetrating incised wound, --" x --" going into the chest between 10th and 11 ribs over the left lateral side of chest.
(4) An incised wound --" x 1/6" x 1/6" over the palmer side of first phylanx right little finger.
(5) An abrasion -- " x 1/6'' over the palvic side of left index finger.
The first two injuries were caused by fire-arm find the rest with sharp pointed weapon. Death was in the opinion of the doctor caused by shock and haemorrhage resulting from Injuries Nos. 1 to 3 which were fatal in the ordinary course of nature. The appellant appeared before the Sub--- Inspector next day of the incident and produced licensed gun (P. 2) which was secured and made into sealed parcel (P. F.). Manzoor appellant had same day led to the recovery of blood-stained knife (P. 3) from a kotha at the dera of Ahmad Khan appellant which was also made into sealed parcel (P. G). These two parcels along with the two parcels containing blood--stained earth and crime empties (P. 1/1-2) which the Sub-Inspector had already with hi were deposited with Safdar Ali Head Constable (P. W. 3), on 25tilt June, 1974, the day the recoveries alleged against the appellants were made. Safdar Ali had in his turn banded over these parcels to Khan Muhammad (P. W. 4) on 2nd July, 1974 for onward transmission to the relevant offices. Knife (P. 3) was found to be stained with human blood (P. L/P. M). Examiner of fire-arm had reported that the crime empties (P. 1/1-2) were fired from the two barrels of gun (P. 2).
3. Thirteen witnesses in all were examined on the side of the prose--cution. Bashir Ahmad (P. W. 6) is witness of recovery of' crime empties from the site. Jalal and Ghulam Haider (P. Ws. 8/9) are the witnesses of production of gun (P. 2) by Ahmad Khan appellant and recovery of knife (P. 3) at the instance of Manzoor Ahmad appellant. Muhammad Arif, Jehan Khan and Muhammad Rafiq (P. Ws 10 to 12) are eye-witnesses. Raja Abdul Rasheed (P. W. 13) the last witness on the side of the prose-- cution is the Investigating Officer. The appellants had in their statements under section 342.
Criminal Procedure Code repudiated the charge as false. Ahmad Khan appellant had stated that Mst. Sakina Bibi sister of the deceased was abducted by his brother Sardar Khan and Mst Maqsood Bibi was never married to the deceased nor even nikah was performed. Gun (P. 2) licensed in his name was produced by his father before the Sub---Inspector. He was falsely implicated in the case due to enmity for reason of abduction of sister of the deceased by his brother Sardar Khan and that he was a witness of divorce of Mst. Fatima Bibi a maternal aunt of the deceased, a real sister of Ghulam Haider (P. W. 9) and mother-in-law of Jehan Khan (P. W. 11). Some documents were tendered in defence by the appellant to which reference will be made as and when necessary. The plea of Manzoor Ahmad appellant was that of false implication due to enmity with the witnesses.
4. Learned Sessions Judge has held that the motive alleged against Ahmad Khan was established and he accepted as reasonably true the contention on the side of prosecution that Ahmad Khan had given the hand of his daughter Mst. Maqsood Bibi in marriage with Bashir Ahmad deceased in exchange of the marriage of Sakino Bibi a sister of the deceased with Sardar Khan brother of the appellant. The appellant had declined to accede to the request of the deceased and his father that Mst. Maqsood Bibi who had now become of age should live with the deceased. Institution of a civil suit by the deceased in the, Court of Civil Judge, Mandi Baha-ud-Din had created a bad blood which had led to this unfortunate incident of murder of the deceased -by the appellants. Learned Sessions Judge also held that the three eye witnesses were natural witnesses of the occurrence and there was no "serious enmity" between the witnesses and Ahmad Khan appellant so as to impel them to level a false charge against both the appellants. Evidence of the said witnesses was also corroborated by medical evidence. Learned Sessions Judge, however, did not advert to the recoveries of crime empties (P. 1 / 1-2) from the site and knife (P. 3) alleged against Manzoor Ahmad appellant. In view of his finding on motive and direct evidence in the case as corrobo-- rated by medical evidence, learned Sessions Judge held that the case was proved against the appellants beyond any shadow of reasonable doubt and answered the charge against them with the penalties as indicated in the opening para of the judgment.
5. Bashir Ahmad (P. W. 6) had deposed to the collection of blood--stained earth and two crime empties (P. 1/1-2) from the site (PB/PC). Jalal and Ghulam Haider (P. Ws. 8/9) had confirmed the version of the Investigating Officer that Ahmad Khan appellant had produced gun (P. 2) and Manzoor appellant had in their presence led to the recovery of blood--stained knife (P. 3) from a kotha at the Dera of Ahmad Khan appellant (PF-PG). Muhammad Arif (P. W. 10) had testified to the facts which formed the basis of charge against the appellants as set-out above. Jahan Khan (P. W.
11) had said that he along with Muhammad Rafiq (P. W. 12) was present at the Bank. The deceased and Muhammad Arif (P. W. 10) --came from the side of the village. Muhammad Arif sat down to urinate while the deceased proceeded onward. The appellants emerged from ambush on the western side of the water-course. Ahmad Khan fired at the deceased twice with gun in his hand.
Manzoor Ahmad appellant jumped over the watercourse and stabbed the deceased in the flank.
Ahmad Khan appellant re-loaded the gun and gave them threat that anyone who tried to intervene will be dealt with likewise. Similar is the statement of Muhammad Rafiq (P. W. 12). The proceedings taken by the Sub. Inspector (P. W. 13) during investigation have already been stated in the foregoing lines.
6. Having scrutinized carefully material evidence in the case we find ourselves unable to endorse the conclusion arrived at by learned Sessions Judge. The three eye-witnesses are closely related to the deceased. Muhammad Arif (P. W. 10) is real brother of the deceased, Jehan Khan (P. W. 11) is a maternal cousin of the deceased and Muhammad Rafiq (P. W. 12) is a first cousin of the deceased.
The finding that the witnesses did not have "serious enmity" with Ahmad Khan appellant is based tan misreading of evidence. It is clear from the statement of Bashir Ahmad (P. W. 6) that the complainant side had long-standing enmity and serious grievances against the said appellant, Mst. Fatima Bibi a maternal aunt of the deceased and mother-in-law of Jehan Khan (P. W. 11) was married to Bahawal Bakhsh (since dead). The latter had served a notice of divorce of Fatima (DE) which was signed by Ahmad Khan appellant as a witness. Rafiq a son of Bahawal Bakhsh from another wife of Bahawal Bakbsh named Mst. Rahmat had a dispute with Mst. Fatima. The said Rafiq had also filed a suit that he was entitled to the property left by his father to the exclusion of Mst.
Fatima. Ahmad Khan as well as his brother Muhammad Khan had appeared as witnesses on the side of Muhammad Rafiq which was however, dismissed (DD). The witness has further admitted that he was on the side of Mst. Fatima. He, Arif, Jehan Khan (P. Ws. 10-11) and the deceased on one side and Rafiq, son of Bahawal, his brother-in-law Sharif on the other side were proceeded against under section 107/151, Cr. P. C. Bashir Ahmad had also admitted that Ahmad Khan appellant was a witness in case under section 323/324, Pakistan Penal Code against Lal a brother of the witness and few others, and the appellant was also a witness on the side of the prosecution in a case against father and uncle of the deceased under section 307/325, Pakistan Penal Code in which they both were convicted with a sentence of rigorous imprisonment for two years each.
In the circumstances, it is difficult to say that the witnesses were not partisan or interested against the appellants or in the words of learned Sessions Judge they had no "serious enmity" with Ahmad Khan appel--lant. Speaking broadly, an interested witness is a person who has a grievance against the accused and a motive for falsely implicating him. Evidence on a capital charge must come from an unimpeachable source or if such source is not available it must be supported by some strong circumstances such as might serve to overcome the inherent doubt by which such evidence is necessarily affected. It is an accepted rule of prudence that: it is not safe to base conviction on the testimony of interested witnesses if it is not corroborated on all material particulars by any other independent and unimpeachable evidence not only upon facts of the crime but also upon implication of the accused. The statements of these three eye-witnesses cannot be used for corroboration inter se. A tainted piece of evidence cannot corroborate other equally tainted evidence. Therefore. A we will have to look forward for corroboration of statements of eye---witnesses from other sources, direct evidence or circumstances in the evidence which should tend to lend assurance to the claim of the witnesses that they bad seen the occurrence.
7. Recovery of crime empties (P. 1/1-2) which could have served as an effective corroborative evidence against Ahmad Khan appellant must be discarded for more than one reason which are equally forceful. Bashir Ahmad is also an interested witness. He is connected with the family of the deceased. Muhammad Hussain a brother of the witness was married to Mst. Rasoolan a sister of Jehan Khan and first cousin of the deceased. The allegation that Ahmad Khan appellant had re- loaded the gun dis--carding the used cartridges before he had left the site does not find mention in the first information report, nor in-the inquest report (PJ) which was prepared immediately after the Sub-Inspector had reached the site, nor in the statements of the witnesses under section 161, Criminal Proce--dure Code recorded same day. There is no explanation why this important fact was omitted persistently in all these three important documents. This leads to the conclusion that' the Investigating Officer had hit upon the idea of fabricating crime empties for use as confirmatory circumstance for the statements of eye-witnesses in the case. The Sub-Inspector had kept the crime empties with him until the appellant had produced the gun allegedly next day of the incident. The Sub-Inspector had said that he had despatched first diary (zimni) to the police station on the day of incident through a chowkidar. The empties should have also been sent to the Police Station through one of the two constables accompaning the Sub-Inspector for immediate transmission to the laboratory if it' were not proper to entrust crime empties to the chowkidar for delivery at police station. Where the empties are sent to laboratory after recovery of gun, no value could be attached to the report of fire-arm expert for the reason that possibility of fabrication of empties could not be ruled out. This view further strengthened by another circumstance also.
Bashir Ahmad (P. W. 6) had admitted in his statement before the inquiry Magistrate that the gun was produced by Ahmad Khan appellant before the Police on the day of occurrence which fact he had, however, denied in his statement at the trial. The witness has obviously done so under instructions so as to exclude a forceful contention on the side of the defence that the Sub--- Inspector had kept th-- gun to fabricate crime empties and the recovery was thus shown next day when the empties were deposited at the police station.
Recovery of knife (P. 3) attributed to Manzoor Ahmad appellant is not proved satisfactorily. Jalal (P.
W. 8) and Ghulam Haider (P. W. 9) are respectively uncles of the deceased from paternal and maternal side. It is in evidence that 9-10 persons were present at the time of recovery but none of them was joined to attest the recovery. Nazeer another Lambardar in the villa-a who is not connected with either side was not joined in the recovery. In cases where disinterested persons are excluded, presumption would be inevitable that the recovery was fake and fictitious Finding of learned Sessions Judge on motive is based on conjectural hypothesis He had presumed without a real basis that Mst. Maqsood Bibi must have been given in marriage to the deceased in exchange of marriage of Mst. Sakina Bibi a sister of the deceased with Sardar Khan a brother of the appellant.
It is not always true that all marriages in rural areas should be exchange marriages. The plaint filed by the deceased in the Court of Civil Judge at Mandi Bahauddin and the interim prohibi--tive order restraining Mst. Maqsood Bibi from contracting marriage with any one else were not produced in evidence. The allegation that Mst. Maqsood Bibi had lived with the deceased 2-4 days about three months before the incident for consumption of marriage is after-thought The First Information Report clearly gives a different impression that Mst. Maqsood Bibi had never joined the deceased with whom she was allegedly married. Prosecution has in our view also failed to establish motive against Ahmad Khan appellant by convincing evidence.
Medical evidence in the case does not furnish the requisite corrobora--tion upon implication of the appellants in the crime.
8. Besides, evidence of eye-witnesses is otherwise also doubtful and could not be accepted without a grain of salt. We cannot believe that the deceased and Muhammad Arif (P. W. 10) were proceeding to their Dera to milk the cattle at Chhahwala viz. Three hours after sun-rise. It is not to draw on wild imagination in saying that, ordinarily, cattle are milked much before sun-rise. The milk-pot which the deceased was carrying with him was also not taken into possession by the Sub-Inspector. We also fail to understand why two persons were required to milk the cattle. All the three witnesses had suppressed the fact that Ahmad Khan appellant was a witness of notice of divorce served on Mst. Fatima a maternal aunt of the deceased and Muhammad Arif (P. W. 10) and also mother-in-law of Jehan Khan (P. W. 11), that her step son Rafiq had filed a suit against her and Ahmad Khan was a witness for the plaintiff (Rafiq), that they had supported her and that there had been proceedings under section 107/ 151 Criminal Procedure Code As said above the allegation made by the witnesses that Mst. Maqsood Bibi daughter of Ahmad Khan appellant had lived with the deceased for a few days for consumation of marriage was also not true. According to the first zimni recorded by the Sub-Inspector he had arrived at the site at 2-30 p.m. He had said that the necessary formalities to despatch the dead body were completed by him within one or one and a half hour viz. Three hours before sun-set. But the dead body had reached mortuary late in the night. The fact that the dead body was despatched late from the site also gives rise to an inference that there had been consultations to fix identity of tile assailants and arrange witnesses of occurrence. The incident had taken place at a public path leading to the fields. Prosecution wants us to believe that none else the witnesses who were so closely related to the deceased was there at the time of incident. The prosecution version is that the deceased was fired at by Ahmad Khan from a distance of four-five karams when they had emerged from the ambush by the side of watercourse. Jehan Khan (P. W. 11) bad said that the grass on the banks of the watercourse was inches to one foot in height. According to the Sub-Inspector, the bank of the watercourse was 9 inches to one foot higher than the ground. The allegation that the appellants had been concealing themselves is thus absolutely false. The deceased and the witnesses could have noticed easily that the appellants armed with gun and knife were present by the side of watercourse and could have challenged them. The deceased could not have proceeded towards the appellants and gone so close to them to facilitate attack on him.
9. On the above analysis of evidence, we are not satisfied that the deceased was killed in the circumstances alleged by the prosecution and these three eye-witnesses were present at the time of incident or in any case their evidence could not be accepted as safe basis for finding of guilty against the appellants in the absence of proper corroboration which was not available. We allow the appeal, set aside convictions and sentences of the appellants and acquit them by giving them benefit of doubt. They shall be released forthwith if not desired to be detained in any other case.
Consequently, Revision Petition for enhancement of sentence of Manzoor Ahmad appellant stands dismissed.