AJMAL MIAN, J.-By this judgment, we intend to dispose of the above Criminal Appeal and the Criminal Revision Application.
The relevant facts leading to the filing of the above appeal and the Cr. Revision are that the present two appellants Safar son of Tagio Khoso and Alisher son of Ali Goher Khoso were charged with the murder of Khuda Bux and Shafi Mohammad alongwith 4 co-accused, namely, Wasayo son of Sajhro Khoso, Gul Hasan son of Rasul Bux, Khudadad son of Ghulam Kadir and Ghulam Hussain son of Mongio under sections 148, 302/149, 307/149, P. P. C. Three of the accused namely, Gul Hassan and Khudadad and Ghulam Hussain were murdered during the trial of the case before the Sessions Court and so also the complainant Buxial, who lodged the F. I. R. In question. The trial proceeded against the present two appellants and aforesaid Wasayo son of Sajhro Khoso. The learned Additional Sessions Judge through his judgment dated 28th March, 1981 acquitted said Wasayo, but convicted the present two appellants, under section 302/34 and awarded life imprisonment and also imposed a fine of Rs. 2,000 each, in default of payment of fine to undergo R.
I. For 2 years. It was also ordered that if amount would be paid, the same shall be payable to the heirs of both the deceased in equal share under section 544-A, Cr. P. C. The appellants being aggrieved by the above judgment filed the present appeal, whereas the complainant party filed the aforesaid Cr. Revision for enhanc--ing the sentence on which notice was issued.
2. The prosecution case was that on 25th May, 1972 at 7-30 a.m. When deceased Khudabux and deceased Shati Mohammad (who was armed with ,double-barrel gun) by caste Khoso, were going on cycle to the school, where deceased Khudabux was a teacher, tttree persons, namely, Ali Sher, Wasayo and Gul Hassan emerged from the western side of the road from lal bushes. It was alleged that Wasayo was armed with a gun and the other two were armed with hatchets. It was further alleged that from the eastern side of the road also three persons emerged namely, Ghulam Hussain, Saffar and Khudadad. Ghulam Hussain and Khudadad were armed with guns, whereas Saffar was armed with hatchet. The above accused bred upon the deceased and thereafter, hatchet injuries were inflicted by the accused, who were armed with hatchets. It was also the prosecution case that the above incident was witnessed by Buxial son of Sher Mohammad, the complainant and two other eye--witnesses, namely, P. W. 2 Ghulam Nabi and P. W. 9 Nek Mohammad. It may be pertinent to observe that the complainant Buxial's statement was recorded by the committal Court, which was brought on record of the Sessions Court under section 33 of the Evidence Act as the complainant was also murdered as stated hereinabove before his state-- ment could be recorded by the learned Additional Sessions Judge. The F. I. R. Was lodged by Buxial at 8.30 a.m. At Khairpur Nathan Shah P. S., which is situated at about 4 miles from the ' place of the incident.
3. (a) The prosecution has relied upon the ocular testimony of the above three eye-witnesses and also on the evidence of the Investigating Officer P. W. 7 Abdul Majid, the medical evidence, the recoveries, Chemical Analyser's report and the statements of the mashirs to the recoveries and to the arrest. Prosecution has also brought on record the ballistic expert's report Exh. 34 in respect of the three alleged guns recovered from two of the accused, namely, Khudadad and Ghulam Hussain and the third from Wasayo, who has been acquitted by the learned Additional Sessions Judge.
(b) Complainant Buxial in his statement before the Committal Court has deposed that about 5 months back he, P. Ws. Ghulam Nabi, Nek Mohammad were returning from the shrine of Mian Nasir Mohammad, where they had gone for Ziarat and that when they reached Bahadurpur and Gozo at 7.30 a.m., they saw from a distance of half furlong that deceased Khudabux and deceased Shafi Mohammad were going to the High School on a bicycle. He has also stated that after they covered about 10/ 15 paces, they saw accused Gul Hassan, Wasayo and Ali Sher emerging from lal bushes from the eastern side of the kutcha path, Wasayo was armed with a gun, whereas the other two were armed with hatchets. He has further stated that accused Saffar, Khudadad and Ghulam Hussain emerged from the western side of the path, accused Saffar had a hatchet, whereas the other two were armed with guns. It was also been stated by him that accused Khudadad, Wasayo and Ghulam Hussain fired at deceased Khudabux and Shaft Mohammad after challenging them. It has been further deposed by him that on this he and P. Ws. Nek Mohammad and Ghulam Nabi raised cries and challenged the accused persons, whereupon the accused also fired upon them and threatened them that they would come close to them. Thereupon, they fell down on the ground to save themselves and, therefore, the fire-arm shots missed them. It has been further deposed that when the accused had gone for about -- furlong they went near the deceased, and there they found a bicycle, one gun, dead bodies and a belt of cartridges tied around the waist of deceased Shaft Mohammad. It has also been stated by him that he left P. Ws. Ghulam Nabi and Nek Mohammad to watch the dead bodies and went himself to lodge the report with the Police Station, Khairpur Nathan Shah, which was read over to him by the. Police. It has also been stated by him that deceased Shafi Mohammad used to accompany Khudabux as he was having a gun and that they apprehended danger as prior to this one Kaiser Khoso brother of accused Ali Sher was murdered in which Saleh and Imambux brothers of the deceased Khudabux were accused and that the accused persons had a doubt that Kaiser was murdered by the brothers of deceased Khudabux and, therefore, they murdered deceased Khudabux and deceased Shafi Mohammad.
(c) The testimony of the other two eye-witnesses is more or less identical to the above statement of the complainant Buxial. However, there are certain contradictions in their statements brought out by the defence in the cross-examination as to the detail of the visiting of the shrine and as to the seeking of meals etc.
(d) P. W. 3 Jalal is a mashir to the alleged recovery of the blood--stained hatchet from appellant Saffar and also mashir to the mashirnama of wardat, inquest report and the mashirnama of arrest.
In his deposi--tion he has not supported the recovery of blood-stained hatchet from appellant Saffar.
(e) P. W. 4 Ghulam Ali is nekmard of both the parties and was examined as he was an alleged a mashir to the recovery of the blood--stained hatchet from appellant Ali Sher. He has also not supported the prosecution as to the recovery of the blood-stained hatchet.
(f) P. W. 7 Abdul Majid was the Investigating Officer, who has deposed that on 25th May, 1972, he was posted as the S. H. O., Khairpur Nathan Shah P. S., when complainant Buxial came to the P. S. At 8.30 a. m. For lodging the F. I. R. He has deposed that he recorded the F. I. R. Of the complainant as dictated by him and obtained his left thumb--impression after reading its contents. He goes on to state that on reach--ing the wardat, he found the two dead bodies of Khudabux and Shafi Mohammad, a gun and its licence in the name of deceased Shafi Mohammad and a bandolier containing 3 live cartridges, a bicycle, a cap stained with blood and 6 empty shells. He has also stated that he found the wrist watch on the arms of deceased Shafi Mohammad in addi--tion to his fountain-pen, and that he procured all these articles under mashirnama. He sent the dead bodies to the Medical Officer K. N. Shah hospital for post-mortem through P. W. Police constable Ghulam Rasul and he also examined P. Ws. Ghulam Nabi and Nek Mohammad, who were present at the wardat. After that he went to the village of the accused for arresting them. He has also stated that accused Gul Hassan, Ghulam Hussain, Saffar and Khudadad voluntarily appeared before him in the village in the otak of Ghulam Kadir, thereupon he arrested them in the presence of the mashirs under Exh.
11. He interrogated accused Saffar, who allegedly voluntarily led him to his house and produced a hatchet lying in the bedding over the cot, which was blood-stained. He secured the same under Exh.
18. On 3rd June, 1972 he got 164, Cr. P. C. Statements of P. Ws. Nek Mohammad and Ghulam Nabi recorded in the Court of R. M. Dadu and on 3rd June, 1972, he submitted interim challan.
He has further stated that accused Gul Hassan, Ghulam Hussain and Khudadad have died during the pendency of the case and that on inter--rogation accused Gul Hassan had produced a blood- stained hatchet while accused Ghulam Hussain had produced his licensed gun, accused Khuda-- dad had also produced a licensed gun of his father. In cross-examination certain contradictions were pointed out to him by the defence to the above witness. He has stated that he sent the dead bodies before 10.30 a. m. From the place of wardat, which is about 7/8 miles from the town of Khairpur Nathan Shah. He has denied the suggestion that the F. I. R. Was lodged at 1-00 p. m. And that he changed the time to 8-30 a. m. Or that he reached the wardat at 2-00 p. m.
(g) P. W. 1 Ghulam Rasul has stated in his cross-examination that the dead bodies were given to him by the S. H. O., P. W. 7 at 12 noon and that the distance between the wardat and Khairpur Nathan Shah would be about 4 miles. He goes on to state that the S. H. O. And others had gone to the wardat in a jeep and left wardat with the dead bodies at 12 noon and reached Khairpur Nathan Shah hospital at about 2 p. m. His attention was drawn to the fact that before the committal Court he had stated that-he reached Khairpur Nathan Shah at about 6.00 p. m. He denied the suggestion that the S. H. O. Had reached the wardat at about 12 noon. He has also stated that he does not remember if the dead bodies of both the deceased were given to him by the S. H. O. At the wardat at about 3/4 p. m.
(h) P. W. Jan Mohammad who was the Medical Officer K. N. Shah hospital has stated that on 25th May, 1972 at 6-00 p. m., he received the two dead bodies through P. W. Ghulam Rasul. Thereupon, he started post-mortem examination at 6.5 p. m. On the same day on the body of Shaft Mohammad and finished it at 6-50 p. m. He found the following injuries :-
(1) Head was completely separated from the body at the junction of the neck with the tongue.
(2) Circular pellet shot wounds ----- in dia. Each
(i) on the mid-sturnum.
(ii) on apisturnum.
(iii) on anterior fold of Lft. Axilla.
(iv) on Rt. Cheek.
(3) Gapping incised wound 1----- x 1/4" deep up to muscle on the top of left shoulder.
(4) Incised wound 1--- x 1/4" deep upto muscle on the same shoulder lateral to Injury No. 3.
(5) Pellet shot wound 3/4" x 1/5" on the chest back right side infra--scapular region.
(6) Penetrating pellet shot wound in the hole of left eye-ball."
He opined that Injuries Nos. 1, 3 and 4 'appeared to have been caused with hatchet, whereas Injuries Nos. 2, 5 and 6 with guns.
He has further stated that he started the post-mortem on the dead body of deceased Khuda Bux at 7 p.m. And finished the same at 8 p.m. And found the following injuries on his person "(1) Multiple incised wound in area of 7" x 4" x 2-3/4" deep in the head and neck on the posterior and left lateral aspect of neck cutting the muscles, Blood vessels and the upper survival region occipital bone of the skull at its left and posterior region and the left ear in its middle.
(2) One pellet shot wound 1/4" in diameter on the anterior aspect of right shoulder.
(3) Circular penetrating shot wound 1/4" in diameter on the forehead middle.
(4) Circular pellet shot wound I/4" in diameter above the right eye."
He opined that Injuries Nos. 2, 3 and 4 were caused by fire-arm like a gun which were all ante- mortem and that injuries Nos. 1 and 3 were individually and all the four collectively were sufficient to cause death.
(i) It may be observed that the ballistic expert's report Exh, 34 is in negative, whereas the Chemical Analyser's report Exh. 37 is in the positive.
4. (a) Messrs Ali Mohammad Qureshi and Azizullah Shaikh, learned counsel for the appellants have made the following submissions
(i) That the three alleged eye-witnesses are close relations to the complainant party and are on inimical terms with the accused party and, therefore, independent corroboration is required in order to sustain conviction.
(ii) That since the mashirs have not supported the recoveries the statement of the S. H. O. In respect of the recoveries cannot be relied upon and, therefore, the alleged recoveries cannot furnish the requisite independent corroboration to the above testimony of the hostile and interested witnesses.
(iii) That the three alleged eye-witnesses have been planted and that they appear to be chance witnesses.
(b) Mr. Ghulam Ali Agha, learned counsel for the State has candidly submitted that he was not supporting the judgment as admittedly the three alleged eye-witnesses were on inimical terms with the accused party, independent corroboration was required for maintaining the conviction, which is lacking in the instant case.
(c) On the other hand, Mr. Hayat Junejo, learned counsel for the complainant party and the applicants in Cr. Revision No. 46/81 has urged as follows:
(i) That the recoveries cannot be discarded as the S. H. O's. Statement alone is sufficient to prove the recoveries in spite of the fact that the two mashirs to two recoveries have not supported the prosecution.
(ii) That three eye-witnesses cannot be said to be chance witnesses but they are natural witnesses and, therefore, their testimony cannot be doubted.
(iii) That the reasons found favour with the learned Additional Sessions Judge for awarding lesser punishment of life imprisonment to the two appellants instead of capital punishment of death sentence are not sustainable.
5. (a) Mr. Azizullah Shaikh, learned counsel for the appellants, in support of his above submissions, has referred to the case of Sikandar v. State (PLD 1963 SC 17), the case of Thobo and another (PLD 1963 SC 40), the case of Jhando and another v. State (PLD 1969 Kar. 196), the case of Baghali and 4 others (PLD 1973 SC 331), the case of Thanghai v. State (1969 P Cr. L J 439) and the case of Lashkari and 4 others (PLD 1981 Kar. 1).
On the other hand, Mr. Junejo has referred to the case of Muhammad Khan v. Dost Mohammad and 17 others (PLD 1975 SC 607).
(i) With reference to PLD 1963 SC 17, it may be stated that in the above case there were discrepancies between the statements of one P. W. Muhammad Ramzan and P. W. A. S. I. Cornelius, C. J. While dealing with the above discrepancies has made the following observation : "In reaching this conclusion it is perfectly clear that the learned Judges have ignored one of the cardinal principles applicable to the resolution of all material questions arising in a criminal proceeding, namely, the principle that the benefit of every doubt must go to the accused. It-being a question whether the A. S. I. Was to be believed or Muhammad Ramzan was to be believed, the only course open to the learned Judges in accordance with this recognised rule applicable to criminal justice was to hold in favour of the accused, namely, that it was doubtful whether Muhammad Ramzan was a true witness. Materials have been brought on the record by the defence to indicate that he was not free from the influence of the family of the accused."
(ii) Reverting to PLD 1963 SC 40, it may be stated that in the above case also the three witnesses were related to the deceased and were connected inter se and were on inimical terms with the appellants. There was blood-feud between the deceased and the appellants. In the above background of the facts the Supreme Court observed that in approaching the question as to the extent to which credence can be given to such eye--witnesses, the first and foremost consideration to be borne in mind was that there might be false implication of the persons, who were known to be the enemies of the accused and, therefore, it needed caution before accepting the evidence of such interested witnesses.
(iii) Referring to the case reported in PLD 1969 Kar. 196, it may be observed that a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, comprising of Ellahi Bux Khamisani and Dorab Patel, JJ. Made the following observations as to the evidentiary value of the recovery, which is not supported by private mashirs "The only evidence in corroboration of the evidence of these witnesses brought on record is the evidence of the production of hatchet by Jbando on 9th August, 1964, and lathi by Jurio on 14th August, 1964, which were secured under Mashirnamas Exhs. 17 and 20 in the presence of Mashir Shah Ali P. W.
7. Hatchet and lathi produced by the appellants were sent to the Chemical Analyser whose report Exh. 29 shows that there was human blood on them. Shah Ali Mashir P. W. 7, however has given a go-by to the pro--secution and has stated that the hatchet was not produced by appellant Jhando in his presence. According to his evidence, the Police had shown him that hatchet and had told him that it had been produced by the appellant Jhando. The production of hatchet in these circumstances allegedly made by appellant Jhando would have no evidentiary value against him for the purpose of corroborat--ing the evidence of the witnesses. So far as the production of the lathi by Jurio is concerned, the evidence of Shah Ali P. W. 7 is that it was not produced by appellant Jurio but was secured by the Police on search of his house. The fact of lathi said to have been produced by Jurio, therefore, in view of what has been stated by Shah Ali will not be of much consequence in as far as its cor--roborative value is concerned. The net result, therefore, of the evidence on record will be that the evidence of the witness cannot be construed to have been corroborated by any other evidence on record even against the present appellants."
(iv) As regards PLD 1973- SC 321, it may be stated that the Supreme Court while considering the evidentiary value of ocular testimony, it was observed in order to carry conviction on capital charge on the basis of ocular evidence, it must come from unimpeachable source or must be supported by some strong circumstances. It was further observed that if such a source is not available then in order to overcome the inherent doubt which such evidence necessarily creates, there must be some strong circumstances.
(v) With reference to 1969 P Cr. L J 439, it may be mentioned that in the above case a Division Bench of Karachi reiterated that in a case where the prosecution witnesses are not only related to one another, but they are hostile to the appellant, because of enmity, reliance cannot be placed on their evidence unless it can be corroborated by, independent evidence.
(vi) Referring to PLD 1981 Kar. I, it may be pertinent to refer to para. 11 of the judgment, which reads as follows :- ---(11) It would thus be seen that the three eye-witnesses are deeply interested and inimical to appellants Lashkari, Guloo and Murad Ali. The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of caution has virtually ripened into a rule of law.
The Supreme Court has, on numerous occasions, stated the rule and cautioned against acceptance of such testimony without corroboration for the reason that false implication is not very rare in this country. One has no hesitation in saying that a murder in such society infuses in the mind of the family of murdered person a desire to avenge and thus a series of emmurders had taken place. When feelings between the parties become embittered false implication or inflation in the number of accused very often is resorted to. It is precisely for such reason that the Courts are to be on guard and normally look for some corroboration lending an assurance to the evidence of witnesses."
(vii) As regards PLD 1975 SC-607, it may be observed that reliance has been placed by Mr. Hayat Junejo on the observation contained at p. 621 as to the credence of the S. 1. P's. Evidence as to the recovery, which reads as follows :- "The recovery memoranda Exhs. P. J., P. K., P. L., P. M., P. N., P. O., P. Q. And P. S. Had been duly proved by the evidence of the S. I. P. (P. W. 16). These also bear the signatures of two attesting witnesses, namely Sarwar and Yaqub Lambardars the former of the village of the parties and the latter of a neighbouring village. The S. I. P. However stated on oath that the witnesses have not been produced because they have been "won over by the defence". This part of his statement has gone unchallenged and therefore, there is no reason to doubt its veracity. This evidence when read with the contents of the various recovery memoranda, leaves no manner of doubt that the requirements of section 103, Cr. P. C. Were duly complied with. However, it must be conceded that - the provisions of section 103, Cr. P. C. Are mandatory and are designed to guard against possible chicanery and concoction. But the argument is not that the requirement had not been complied with in this case : the argument on the other band is, that no credible evidence has been produced in proof of due compliance with the above requirement. The fact that the recoveries of incriminating articles were made in the presence of two respectable witnesses of the locality is amply proved by the oral testimony of the S. I. P. Read with the recovery memoranda and failure to produce the best evidence has been amply explained.
However, that may be, the requirement of section 103 is not absolute in the sense that failure to comply with it, will make the search illegal. As observed already the object is to guard against possible chicanery and concoction. Therefore Courts will ordinarily insist on a strict compliance with this requirement and view its non--compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court."
(b) From the above-cited cases, it is evident that by now it is a well--settled principle of law that if the alleged eye-witnesses are interested and are on inimical terms with the accused, their testimony cannot be solely relied upon for the purpose of recording conviction. Their evidence requires independent corroboration which will remove doubt which is inherent in the testimony of such interested and hostile witnesses. It is also a well-settled principle of law that recovery of the crime weapons with blood stains can be relied upon as a piece of corroborative evidence provided there is no doubt as to the recovery relied upon. It is in admitted position that both the private mashirs to the two recoveries in question have not supported the prosecution. The solitary evidence to the recovery is of P. W. 7 Abdul Majid, the Investigating Officer. In our view, the discrepancy in the statement between the private: mashirs and the Investigating Officer particularly in view of the fact that P. W. Ghulam B Ali who was a Nekmard for both the complainant and the appellants' parties has not supported the prosecution; has created doubt as to the recovery itself and, therefore, cannot be relied upon as a piece of independent sufficient corroborative evidence to lend support to the testimony of the interested and hostile witnesses, as to sustain the conviction. The case relied upon by Mr. Hayat Junejo reported in PLD 1975 SC 607 in distinguishable from the instant case inasmuch as in the aforesaid Supreme Court case the two mashirs had not come forward to depose on oath before the trial Court. The statement of the S. I. P.
Was that they were won over, which statement was not challenged in the cross-examina--tion. In the present case, the two mashirs have appeared as witnesses and have stated on oath that the recoveries were not made in their presence. In this view of the matter, we are inclined to hold that the above Supreme Court case has no application to the instant case. If we discard the recoveries against the two present appellants, there is no other independent/sufficient corroborative piece of evidence on record to corroborate the testimony of the aforesaid three interested end hostile witnesses.
(c) We may also observe that it was vehemently urged by M/s. Ali Ahmed Qureshi and Azizullah Shaikh that three alleged eye-witnesses are chance witnesses. In support of the above statement, it was pointed out by them that it is highly improbable that these three -witnesses would have gone to visit the shrine when there was no meta or any other ceremony for a period of two days and that they would have returned in the morning and would have reached at the place of incident right at the time when the above incident had taken place and that surprisingly they were spared by the accused though the same animosity existed between them and the accused. It may be observed that the distance of the shrine from the place of wardat is about 10/12 miles and it is the case of the prosecution that the above alleged eye-witnesses had covered the distance on foot. It has been further urged by the learned counsel for the appellants that the correct fact seems to be that these three eye--witnesses after having heard the news about the murder in the village which is located about 1/2 a mile have reached the place of wardat. On the other hand it was vehemently urged by Mr. Junejo that the above witnesses are natural witnesses and that the circumstances of the case belied the above defence version. To re-enforce the above argument it has been pointed out by Mr. Hayat Junejo that according to the tapedar the place of wardat is situated about 2 miles from the witness' village and that the incident had taken place at about 7-30 a.m., whereas the F. I.
R. Was lodged at 8.30 a.m. At the police station situated about 4 miles from the place of wardat, and, therefore, it was not possible to cover the above distances after hearing of the murder in the village. It will suffice to observe that even if it is to be held that the above witnesses are not chance witness, the fact remains that they are interested and hostile witnesses in. As much as even the complainant was murdered during the trial of the case and that three accused were murdered by the complainant party and, therefore, independent corroboration is required to re-enforce their testimony in order to sustain the convictions, which is lacking in the instant case.
7. For the aforesaid reasons, we allow the appeal and set aside the convictions and order that the appellants be released forthwith if not required under any other law for any other offence.
In view of the above result of the appeal, the revision application has become infructuous and, therefore, it is dismissed as having become infructuous.