1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a Division Bench of the High Court of West Pakistan, Peshawar Seat, upholding in appeal and reference the convictions of the appellants under section 302/34 of the Pakistan Penal Code but altering the sentences from death to transportation for life.
2. The appellants, who are both real brothers, were cha with the murder of their co-villager, Mir Akbar, at 9-00 a.m. Of the 18th of May 1965, in village Tatrila, within Donga Gali, district Hazara. It appears that the appellants had brought under plough some Government barren land over which passed the village path from Tatrila to Kala Bagh and had, in spite of the objections of -the deceased, also put up a hedge around the land thus preventing him and other villagers from using the village path. The deceased had also brought some lands, contiguous to this land of the appellants, under cultivation and had been insisting upon asserting his right to use the village path. Over this there was an altercation between the deceased and the appellants some 15 days before the occurrence and the matter was even brought up to the elders of the village for settlement.
3. While this was pending the deceased, who was a dealer in cloth at Sunny Bank, Murree, one day started out for Rawalpindi accompanied by his nephew Sakhi Zaman (P. W. 1), who also is a pedler dealing in cloth in Murree with the help of his uncle, the deceased. The deceased, it is said, had Rs.
4. 8,000 with him and wanted to proceed to Kala Bagh by the village path with the intention of boarding a bus for Rawalpindi from there. When he and his nephew reached a place called Baglota, at a distance of 2 or 2 --furlongs from the village, after crossing over the hedge set up by the appellants they were accosted by the appellants who suddenly emerged armed with single- barrelled guns from behind a boulder.
5. The appellant Khushal asked the deceased as to why, in spite of his repeated warnings, the deceased was still persisting in using the pathvay through his land. The deceased again asserted his right to do so, as the village path was common property. Thereupon, tile appellant Kala told his brother Khushal that the deceased should be killed and Khushal at once fired a shot at tile deceased. Almost simultaneously Kala also fired with his gun and the deceased fell down to the ground. His nephew, Sakhi Zaman, after the second shot, ran from the place raising alarms, but when he looked back to see if he was being followed, he noticed that Khushal and his son, Suleman, were searching the person of the deceased.
6. Ajab (P. W. 2), who was ploughing his fields at a distance of some 50 paces from the place, saw Sakhi Zaman running. He stopped him and enquired as to what was the matter. Sakhi Zaman told him that the appellants had killed his uncle, Mir Akbar, and that the appellant Khushal and his son Suleman had also taken some money from the deceased. They were joined at this stage by Lal Akbar (P. W. 3) who was also attracted by the alarms. He too was informed of the occurrence and all the three then went back to the place of occurrence where they saw the deceased lying in an injured condition, though still alive and in proper senses, They enquired from the deceased as to what had happened and he too told them that the appellants bad injured him by gun shots and that Khushal and his son Suleman had robbed him of a sum of Rs.8,000. Sakhi Zaman then proceeded for the police station accompanied by Lal Akbar. On the way at the village Kala Bagh, however, they met the Sub-Inspector Sajjad Hussain and reported the incident to him at 12-45 p. m.
7. It was formally registered at Donga Gali Police Station, which is 9 miles away, at 4-00 p. m.
8. Kala Bagh is some 5 or 6 miles away from the place of the incident which is situtated within 110 paces of the house of the appellant Khushal.
9. During the course of the investigation the Police Officer was handed over a dying declaration (Exh.
10. P. W. 2/7), which was said to have been recorded by Saidan (P. W. 4). He also seized blood-stained earth and a blood-stained stone from where the dead body was lying, a cane stick (Exh. P. 5) a copper-ring (Exh. P. 4), a sack (Exh. P. 6) and a pellet (Exh. P. 3). He also found there an empty cartridge ease (Exh. P. 1) and an unfired cartridge (Exh. P. 2) both of .12 bore. Another A. S. I. Khan Afsar, who partially investigated the case, recovered a wad (Exh. P. 11) from a point at a distance of about 10 paces to the north of the place where the dead body was lying and another at a distance of about 29 paces to the west thereof.
11. On the 22nd of May 1965, the appellants as also Suleman, the son of the appellant Khushal, were taken under arrest but before this on the 18th of May 1965, the house of Kala had been searched and from inside a box in his living room a single-barreled '12 bore gun (made in U. S. A.), bearing No. 100-H, was seized along with a box containing 28 live cartridges, and on the 20th of May 1965, the wife of the appellant Khushal had produced an old single-barrelled muzzle loading gun from inside her house which was in a rusty condition and stated that this was the licensed gun of Kala. These guns along with the empties were sent to the Ballistics Expert (P. W. 15) who found that the empty cartridge recovered from the spot had been fired from the .12 bore single-barrelled gun of U. S. A.
12. Make bearing No. 100-H, which was recovered on the search of the house of Kala.
13. On the 22nd of May 1965, however, Suleman, after his arrest, made a confessional statement before Mr. Muhammad Younis Khan Sethi (C. W. 1), Magistrate, to the following effect:- "About four days back at morning tea time in village Tatrila my mother Suppo Jan and my sister Safdar Jan were grazing their cattle. Mir Akbar deceased and Sakhi Zaman were removing the fence round our field. My mother and sister objected to this at which Mir Akbar and Sakhi Zaman started beating them and dishonouring them. On hearing the noise I also saw them, I took the licensed shot-gun of my uncle and went to the spot. I asked Mir Akbar and Sakhi Zaman to stop but they wanted to attack me on which I fired two shots at Mir Akbar. I then ran away from the spot.
14. There was none-else on the spot except the persons mentioned above."
15. On the basis of this statement the Police challaned Suleman alone for the murder of Mir Akbar and placed the appellants Khushal and Kala only in column No. 2, but the Enquiry Magistrate joined the appellants also in the enquiry proceedings and ultimately committed all three to stand their trial in the Court of Session on charges under sections 302/34 and 394 of the Pakistan Penal Code. The trial Court acquitted Suleman of all the charges as also acquitted all the three accused In respect of the charge under section 394 of the Pakistan Penal Code but convicted the appellants now before us under section 302/34 of the Pakistan Penal Code and sentenced them to death. There was no appeal against the acquittal of Suleman but the convicted persons preferred an appeal to the High Court and their sentences were also referred to the High Court for confirmation under section 374 of the Pakistan Penal Code. Mst. Hanifa, the wife of the deceased, also filed a criminal revisional application praying for the enhancement of the sentences of the appellants by the imposition of a heavy fine and the award of compensation to her and her minor child.
16. The case for the prosecution was supported at the trial Court by the direct ocular testimony of Sakhi Zaman (P. W. 1) corroborated by the matching of the empty recovered from the place of the incident with the gun, No. 100-H (made in U. S. A.), found on the search of the house of Kala, the medical evidence, the dying declaration recorded by Saidan (P. W. 4), and the testimony of the witnesses Ajab, Lal Akbar and Saidan to the extent that immediately after the incident both Sakhi Zaman and the deceased told them that Khushal and Kala had killed the deceased. When they came to the place of the occurrence along with Sakhi Zaman they found the deceased still in his senses and he too told them that Kala and Khushal had fired shots at him.
17. The appellants set up the plea that they were not present at the scene of the incident but it was Suleman who had, in the circumstances stated by him, killed the deceased.
18. There is no doubt that the deceased was shot at the place where his body was found. The only question, therefore, is whether he was shot in the circumstances alleged by Suleman or whether he was shot in the circumstances alleged by the prosecu--tion ? The defence in support of its case examined three witnesses who tried to support Suleman's story. Out of these Sarwar Khan (D. W. 1) admitted in cross-examination that the deceased was alive, though injured, when other people arrived there and asked him as to how he was injured and the deceased replied to them. He also admitted that Sakhi Zaman, Lal Akbar and Ajab P. Ws. Also reached the spot, and the accused rushed off straight to their house from where they did not again come towards the deceased.
19. After this admission we see no reason to disbelieve the evidence of Saidan who was, in no way, related to the parties and there is no suggestion that he was, in any way, inimical to the appellants.
20. This also establishes the genuineness of the dying declaration recorded by Saidan and furnishes strong corrobora--tion of the evidence of Sakhi Zaman, the solitary eye-witness. His evidence has been corroborated by so many reliable circum--stances that it is impossible to reject it altogether.
21. But even accepting this evidence we are not convinced that the participa--tion of the appellant Khushal has been established beyond any reasonable doubt. The gun recovered from his house was a muzzle loading gun which was licensed in the name of appellant Kala. No empty has been matched with this gun. There is also nothing to corroborate the version given by the prosecution witnesses or in the dying declaration that two shots were fired at the deceased. Only one empty cartridge was recovered. The other cartridge recovered was a live cartridge or one which had misfired. The medical evidence also did not exclude the possibility of all the injuries found on the deceased spreading from the middle of the epigastrium to the medial aspect of the left thigh being caused by a single shot if fired from a distance. There was no charring or blackening present around the wounds. The shot must, therefore, have been fired from a considerable distance. The evidence of Sakhi Zaman also shows that the shots must have been fired from a distance of about 10 paces, for, he states that the two appellants were at a distance of 20 paces from him at the time and he was about 10 or 12 paces behind the deceased. The number of injuries (eight) found on the deceased are also consistent with the number of pellets in an L. G. Cartridge. Such a cartridge usually contains nine pellets. The ninth pellet (Exh. P. 3) was also recovered from the place.
22. We have considered it necessary to look for corroboration, because, in one material respect both the testimony of Sakhi Zaman and the dying declaration have been disbelieved, namely, as to the robbery of Rs. 8,000 which the deceased was said to have been carrying at the time. The accused were all acquitted in respect of the charge under section 394 of the Pakistan Penal Code but no appeal was preferred by the State against this acquittal. There is also no evidence to show from where the deceased acquired so much money apart from the statement of his nephew Sakhi Zaman. The High Court has not also accepted the story that the killing was done with the intent of committing the robbery but appears to have been inclined to believe that the deceased might have caused annoyance to the appellants by disturbing their hedge or crossing over it and entering their ploughed field. We agree with this view of the High Court and are of the opinion that since the evidence of the prosecution witnesses has not been found acceptable in this particular respect it would not be safe to rely upon their testimony unless it is corroborated by other independent reliable evidence with regard to the implication of each accused in the crime. This corroboration is lacking in the case of the appellant Khushal. We are, therefore, of the view that so far as the appellant Khushal is concerned, the benefit of doubt must be given to him.
23. Learned counsel appearing for the State has, however, argued that in view of the admissions of even the defence witnesses and Suleman himself that two shots were fired, one of the shots must be attributed to Khushal, particularly, since the medical evidence does not absolutely rule out the possibility of the injuries being caused by two shots. We are, however, unable to agree, for where there are two possibilities open upon the evidence, the possibility which is more favourable to the accused must be accepted, if it otherwise fits in with the facts and circumstances of the case. As we have endeavoured to show the possibility of the injuries, found on the deceased, being caused by a single shot, is supported not only by the medical evidence but also by the recovery of only one empty cartridge and the number of injuries being consistent with the number of pellets normally contained in such a cartridge. It cannot, there fore, be said with certainty that the injuries were caused by two shots and not by one. The benefit of this doubt must go to the accused and not to the prosecution.
24. The learned counsel for the appellant, it may be mentioned here, had also urged that the trial had been vitiated by reason of misjoinder of charges in so far as the appellants had been tried along with Suleman who set up a mutually exclusive story. The question of misjoinder has to be judged on the basis of the accusations made and on that basis the provisions of section 239 of the Criminal Procedure Code were fully attracted in the present case. The accused were charged for the same offences committed in the course of the same transaction and not for different offences committed in the course of the same transaction. But even if the latter was the case, they could be tried together and there was no defect at all in this joint trial. The mere fact that Suleman has been acquitted does not render the trial void.
25. In the result we dismiss the appeal of Kala and allow the appeal of Khushal, as already indicated in the short order dictated on the 16th of Maren 1971. The appellant Khashal must be set at liberty forthwith if not required in any other connection. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.