MUHAMMAD ZAFARULLAH, J.-Shabbir Ali 35, his nephew Muhammad Salim 16 and their collateral Muhammad Yasin 30 were convicted under section 302/34, P. P. C. By Sardar Ghulam Farid, the learned Additional Sessions Judge, Sargodha, vide his judgment dated 19th May, 1979 for the murder of Muhammad Sadiq 20. They were also convicted under sec--tion 323/34, P. P. C. For causing simple injuries to Muhammad Azam P. W. During the same occurrence. Shabbir Ali appellant was sentenced to death, under section 302/34, P. P. C., subject to confirmation by the High Court, and to a fine of Rs. 10,000 or in default to suffer rigorous imprisonment for a period of two years. Muhammad Salim and Muhammad Yasin were sentenced under section 302/34 to imprisonment for life and to a fine of Rs. 5,000 each or in default to suffer one-year rigorous imprisonment. The fine if realised, is to be paid as compensation to the heirs of the deceased. The appellants were also sentenced, under section 323/34, P. P. C., to one-year rigorous imprisonment each. Murder Reference No. 172 of 1979 has been received for the confirmation of death sentence of Shabbir Ali appellant. The three appellants have also filed appeal against their conviction and sentence (Criminal Appeal No. 598 of 1979). Mohammad Azam P. W. Has also moved a Revision Petition No. 760 of 1979 praying for enhancement of sentence. The revision petition has been ordered to be heard alongwith other two matters. The three matters are being taken up together in this judgment.
2. According to the prosecution the occurrence took place at about 4-30 p.m. On 8th December 1977 in village Hadah. Police Station Mitha Tiwana, Which is at a--- distance of 8 miles from the place of occurrence. Mohammad Azam P. W. Is stated to have removed Mohammad Sadiq in an injured condition to the hospital at Jauharabad, which is six miles away. Dr. Muhammad Afzal examined Mohammad Sadiq at 8-30 p.m. Mohammad Azam met Ghulam Hussain, A. S. I. (P. W. 8) at Chowk Jaubarabad at 9-10 p.m. When he produced medical certificate before his statement Exh. P. H. Was recorded. Formal F.I.R. P. H./1 was recorded at 11-00 P.m. At-the police station.
3. The motive for the occurrence, as alleged by the prosecution is that five months prior to the present occurrence a case of hurt was registered against the deceased, Mohammad Azam: and Sher Mohammad P. Ws. For causing injuries to Shabbir appellant etc. It was on account of this grievance that Shabbir, Saleem and Yasin appellants decided to even the score and caused injuries to the complainant party which resulted in the death of Sadiq and injuries to Azam P. W.
Mohammad Azam complainant has stated that he was returning to his house carrying meat in the company of his brother Sadiq deceased and his father Sher Mohammad, the meat being required the following day for the wedding of his sister, when the appellants who were armed with sofas attacked Sadiq deceased. Shabbir appellant gave .The fist blow followed by Salim appellant and then all the three appellants started beating the deceased. When Azam intervened to save his brother, he was also beaten. On the alarm raised by Sher Mohammad P. W. Some people gathered and the appellants ran away.
4. According to the medical evidence two injuries on the head, attri--buted to Shabbir and Salim appellants, proved fatal. All the injuries were caused by blunt weapon. They were nine in number including four bruises Injuries Nos. 5 and 6 were swellings while the remaining were contusions.
Seven injuries were found on the person of Azam P. W. They were all simple and caused with blunt weapon. Injuries Nos. 1 to 6 are swelling and injury No. 7 is a bruise.
5. The plea taken by the defence is that they have been falsely implicated due to enmity. It has been stated that the motive alleged by the prosecution is false as the occurrence referred to as motive had taken place not between them and the complainant party, but between Anwar etc., and the complainants. Shabbir appellant and his brother Nazir, father of Salim appellant were merely witnesses in that case. Even otherwise that case had been compromised and Shabbir appellant and his brother had made obliging statements in favour of the complainant party two months before the present occurrence on 3rd October, 1977, as a result of which they were acquitted. It has also been suggested during cross--examination that the deceased was a bad character and may have been done to death by some unknown persons and the appellants roped in due to enmity.
6. The prosecution relies on the ocular account given by Mohammad Azam (P. W. 5) and Sher Mohammad (P. W. 6). Mohammad Azam, who also lodged the F.I.R. Was injured during the occurrence. He is a brother of deceased. Sher Mohammad P. W. Is the father of the deceased. They have supported the story which was narrated in the F.I.R. And have alleged that the appellants attacked Sadiq deceased at 4-30 p.m. In village Hadah when he was returning home carrying meat along with the P. Ws. Azam has stated that when he tried to intervene he was also injured. The appellants went away only when a number of people were attracted to the place of occurrence on the alarm raised by Sher Mohammad P. W.
7. The prosecution also relies on the evidence of recovery of sofas from the three appellants.
Mohammad Azam complainant, Zafar Ali and the Investigating Officer were cited as witnesses to the recovery. Out of them Zafar Ali was not produced. He was produced instead by the defence as D. W.
2. This evidence does not advance the case one way or the other, as the sofas bear no stains of blood. The deceased and the injured witness did not bleed, the injuries being contusions and abrasions, even though Azam P. W. Has stated that Sadiq deceased was lying in a pool of blood.
8. As far as the eye-witnesses are concerned, it is obvious that they are both interested witnesses.
Not only are they closely related to the deceased being the father and the brother of the deceased, but also they had enmity with the appellants who had been cited as eye-witnesses in a case of hurt against them. The presence of Sher Mohammad P. W. At the spot is also doubtful. It is improbable that while one of his sons was killed and the other received 7 injures. Sher Mohammad should have escaped without a scratch in the occurrence. He did not intervene and was content with raising an alarm. Such a conduct is unnatural. The presence of Azam P. W. On the other hand cannot be excluded as he has received 7 injuries and the medical evidence lends support to the fact that the injuries were received during the same occurrence although the defence has tried to show otherwise, stating that Azam was not examined at the time when Sadiq deceased was examined in an injured condition. It has been pointed out that the chit written by Dr. Mohammad Afzal P. W. Informing the Police mentions the name of only Sadiq and not of Azam P. W. The doctor however says that Azam and Sadiq were examined on the same day Azam, nevertheless is an interested witness, and it is necessary that his statement finds independent corroboration before he could be believed. As stated above, the recovery of sotas does not provide any corroboration, as the soras could not be connected with the occurrence. On the other hand, the evidence of motive instead of providing corroboration for the testimony of the eye-witnesses recoils on the entire prosecution evidence as the motive has been proved to be false by documentary evidence produced by the defence. The criminal case which had been mentioned as the motive of the present occurrence had been compromised more than two months before the present occurrence. Shabbir Ali appellant and his brother Nazir, the father of Salim appellant had made statements in the Court, as a result of which the P. Ws. Were acquitted. It may, however, be added that Azam P. W. In spite of the documentary evidence insists that the appellants had made their statements after the present occurrence. He is, therefore, telling a deliberates lie.
9. The defence has also produced evidence to show that the story of carrying meat for the wedding of the sister of the deceased is not true as Bashir D. W. 1, from whom the P. Ws. Had purchased meat has stated that he sold no meat to the P. Ws. On that occasion. The statement of Ghulam Hussain A. S. I. (P. W. 8) to the effect that he found no signs of a scuffle on the place of occurrence is significant and it supports the contention of the defence that the occurrence did not take place in the manner in which the prosecution alleges.
10. As a result of the above discussion the presence of Sher Mohammad P. W. Is not established at the place of occurrence. Mohammad Azam P W. Was no doubt present but he is an interested witness. His evidence finds no corroboration from an independent source. Such corroboration was necessary in the light of rule laid down A by the Supreme Court in the case of Sher Bahadur and anther v. State (1972 SCMR 651)
11. In view of the above considerations, the appeal is accepted and the conviction and sentence is set aside. The revision petition is also dismissed. The sentence of death of Shabbir Ali is not confirmed. The appellants are in custody. They shall be set at liberty forthwith if they are not wanted in any other case.