1. SHAFIUR RAHMAN, J.-Out of four convicts each sentenced to death (three counts) and life imprisonment (three counts) leave to appeal was granted only to the two namely Rab Nawaz and Ahmed Hayat to examine whether in their case the witnesses being interested and inimical, required corroboration was at all available to sustain their conviction and sentence.
2. A dispute over a volley-ball match had led on 3rd of March, 1976 to the murder of Muhammad Amir, a brother of Ahmed Hayat appellant and injuries to Sarfraz and Abdur Razzaq co-accused of the appellants. For this Fateh Muhammad deceased, his son Ijaz, Atta Muhammad husband of Bakht Begum, complainant in this case, Akhtar and Zummarrad were charged under section 302/307/34, P. P. C. And their case was pending trial. 15th of April, 1976 was a date fixed in that trial at Chakwal where among others Mss. Bakht Begum (P. W. 17), her daughter Munazza Jabeen aged 7 years, the three deceased of this case, Fateh Muhammad, Sultan, and Riaz and the two injured Allah Yar and Choghatta had gone to attend the proceedings. The Court hours during those days were from 8-00 a.m. To 2 p.m. After attending the Court they were returning by bus to their village Ranjha and got down at village Roopwall in order to walk to their village by the shortest route. When they reached near the kotha of Abdul Ghani they found the appellants and their five companions emerging from the kotha. Safdar and Aslam were armed with guns and all others with pistols. They started firing. Rab Nawaz fired at Sultan. Safdar fired at Riaz and Fateh Muhammad. Thereafter more injuries were inflicted by the butts of the guns which in the process got broken and they by knives which were also carried by there. They left three persons namely Fateh Muhammad, Sultan and Riaz dead at the spot and three others namely Allahyar, Choghatta and Munazza Jabeen injured. Mst. Bakht Begum (P. W. !7) went to the village, obtained the assistance of the Chowkidar and lodged the report in the village Suheri where Khadim Russain (P. W. 21) was on patrol duty. It was recorded at 5-40 p.m. And formal F. I. R. Registered at the Police Station which was at a distance of six miles. Allah yar injured (P. W. 18) had been removed to the hospital. Doctor Asghar Hameed (P. W. 1) informed the S. H. O. Chakwal about his being a medico-legal case whereupon Murid Ahmed Shah, the S. H. O. Chakwal (P. W. 10) after getting the usual certificate about his fitness to 'make a statement recorded his statement. Khadim Hussain (P. W. 21) went to the spot, attended to the dead bodies and prepared the injury statement of Choghatta and Mst. Munnazza who were available at the spot. He inspected the spot in the morning and took into possession the blood- stained earth from there. Six pieces of broken butts, four crime empties of .32 bore, two live cartridges, three crime empties of .12 bore gun and pieces of wads were recovered from near the dead body of Fateh -Muhammad. These were sealed into parcels. Ahmed Hayat appellant was arrested on 20-4-1976 and led to the recovery of knife (P. 30) from village Ranjah on 2-5-1976 which was reported by the Serologist to be stained with human blood. Rab Nawaz after his arrest on 20th April, 1976 led to the recovery of the revolver on 26-4-1976 and the same matched with the three empties (P. 7 to P. 9) recovered from the spot. There were other incriminating recoveries effected from the other co-accused of the appellants.
3. Dr. Asghar Hameed Qureshi who performed the post-mortem on all the three dead bodies found on the person of Riaz 16 incised or stab wounds, one fire-arm bullet wound and one lacerated wound. On the dead body of Sultan he found two incised wounds, 5 lacerated wounds and one pellet (fire-arm wound). On the dead body of Fateh he found two stab incised wounds, 1 fire-arm wound and 6 lacerated wounds. Allahyar injured had three incised wounds, two lacerated wounds- abrasions and 33 pellets (fire--arm) wounds. Choghatta injured had one fire-arm wound while Munnazza had two.
4. The appellants admitted their relationship. Ahmed Hayat had admitted that his brother Muhammad Amir had been murdered by the deceased Fateh Muhammad and his relatives in March, 1976. However, both the appellants alleged that they had been falsely implicated on account of enmity. Both denied the recoveries at their instance.
5. The learned Sessions Judge disbelieved the claim of Mst. Bakbt (P. W. 17) to be an eye-witness because she was not injured, she had omitted to mention certain facts in the P. 1, and because Munnazza was not with her but with another adult male in the group. Muhammad Yar was also not accepted as an eye-witness of the occurrence. However, full reliance was placed- Lyn the statements of the two injured witnesses namely Allah Yar (P. W. 18) and Choghatta (P. W. 20). The recoveries were believed and found to be incriminating. On this, the trial Court held all the seven accused guilty of the offence under sections 302/307/149, P. P. C. (three counts) and under section 148, P. P. C. All the seven were sentenced to death under section 302/149, P. P. C. (three counts) and a fine of Rs. 2,000 each on each count. They were all sentenced to life imprisonment under sections 307/149 (three counts) and a fine of Rs. 1,030. They were convicted under section :48 and sentenced to two years' R. I.
6. When the appeal and the case for confirmation of death sentences came up before the High Court it was found that Abdur Razzaq convict had died in the Jail. Muhammad Aslam and Khizar Hayat were given the benefit of doubt and were acquitted. The remaining accused were held guilty by .
7. The trial Court and their sentence was kept intact. The High Court accepted the recovery of the knife at the instance of Ahmed Hayat and its being stained with human blood notwithstanding the fact that it was secreted in a dung heap and the High Court's attention was drawn to an observation in Muhammad Ilyas and 5 others v. The State (PLD 1967 SC 443) with regard to the eviden--tiary value of such a recovery. Tae recovery of the revolver at the instance of Rab Nawaz was also believed as also matching of the three empties recovered from the spot notwithstanding the fact that the revolver had a chamber for used bullets and ejection of the empties was not in the ordinary circumstances required or necessary.
8. The eye-witnesses against the appellants are all interested, The husband of the complainant Mst.
9. Bakhto Begum (P. W. 17) was facing the charge on murdering Amir Khan brother of Ahmed Hayat appellant. So was Ijaz A.I brother of Allah Yar (P. W. 18) and Mohammad Yar (P. W. 19). Choghatta is real uncle of Mst. Bakht Begum. There was therefore need for indepen--dent corroboration. The trial Court was convinced of the enmity of the prosecution witnesses but overcame the need for independent corroboration by holding as follows :- "No recovery has been effected from Mohammad Aslam and Khizar Hayat accused and as against them we have only the eye-witnesses account furnished by Allah Yar and Choghatta (P. Ws. 18 and 20). After the murder of Muhammad Amir there developed enmity between the parties, but the two witnesses have been believed with respect to the other accused anal so there seems to be no reason why they be not believed with respect to Khizar Hayat and Muhammad Aslam accused as well. It was a broad day occurrence and the investigators have not been cross-examined, nor any defence plea of non-participation was raised on behalf of Khizar Hayat and Muhammad Aslam.
10. Muhammad Aslam accused is a close relative of Amir deceased of previous murder case while Khizar Hayat accused is real brother of Sarfraz accused, he was injured alongwith Amir deceased and so these two had also strongest possible motive to participate in the occurrence. This motive part of the story is a corroborative factor to the eye-witnesses accused as against these two accused as well."
11. The learned Judges in the High Court found in the case of Mohammad Aslam and Khizar Hayat, no independent corroboration, gave them the benefit of doubt and acquitted.
12. As against Rab Nawaz appellant, two conspicuous deficiencies in the prosecution case were pointed out. Firstly the prosecution case consistently was that Rah Nawaz was arced with a revolver, was the first to open fire and fired at Sultan deceased who fell down on receiving his shots.
13. It was found that Sultan had no bullet injury on his person at all. The learned judgesin the High Court explained this deficiency by holding as follows:- "We do not find. Any force in this contention for the reason that when several persons start firing, it is not possible for the witnesses to state precisely as to whose shot hit whom."
14. The other deficiency pointed out was with regard to the recovery of three empties (P. 7 to P. 9) from the spot which matched with revolver recovered from this appellant. The revolver had a chamber which could accommodate six live bullets or empties. Even if a few were fired by him during the occurrence (which fact is contradicted by ocular evidence read with medical evidence) there was no question of empties being ejected out of it. The learned Judges in the High Court explained it by observing as follows :- "There-is no denial of the fact that four .32 bore revolver empties (P. 7 to P. 10) bad been recovered from the spot by Khadim Hussain Shah S. H. O. (P. W. 21) and the same were sealed into a parcel: The presence of these empties clearly prove that revolver of .32 bore had been used in the commission of murder. Three empty cartridges of .32 bore .Revolver (P. 7 to P. 9) were found to have been fired from P. 19 which was produced by Rab Nawaz appellant. It appears that Rab Nawaz reloaded the revolver at the spot. In order to reload the revolver the used empties are to be ejected out of the weapon."
15. The complainant had stated categorically in the F. I. R. That Rab Nawaz was the first to fire one after the other shots at Sultan who fell down. She owned this part of the statement in Court. Allah Yar (P.
16. W. 18) was confronted with his police statement wherein he had stated that Sultan was the first to fire successive shots at Sultan. Chogatta (P. W. 20) stated "Rab Nawaz fired at Sultan from a distance of ten paces, when Sultan was running and the shot was fired from behind. Rab Nawab fired thrice at Sultan but I cannot say at which particular place each shot hit Sultan." It is certain from the medical evidence that Sultan had no bullet injury, no fire-arm injury at all on his dead body.
17. The explanation given by the learned Judges would hold good only if the allegations related to events during the course of melee, confusion or turmoil. In noticing the very opening of the attack, the initiation of the aggression, the very first shot fired, ordinarily no such mistake, discrepancy or inconsistency could take place. The witnesses are very positive and clear about the role attributed to Rab Nawaz and equally glaring becomes the discrepancy or the inconsistency for which there is no satisfactory explana--petition.
18. At the time of its recovery the revolver of Rab Nawaz had no bullet or empty in it chamber. There was no evidence of its reloading at the spot or of unloading. This makes it very unlikely that the empties would have been ejected from the revolver, when the very evidence of its having been used in firing in the manner alleged by the prosecution is highly suspected. Such evidence cannot be safely accepted as corroborative.
19. The only corroborative evidence against Ahmed Hayat was the recovery of blood-stained knife from a cow-dung heap at his instance on 2-5-1976. When the attention of learned Judges of the High Court was drawn to an observation on the subject in Muhammad Ilyas and S others v. -The State (PLD 1967 SC 443) they distinguished it by observing as follows :- "It is true that recovery had taken place sixteen days after the occurrence but there was no evidence to show as to when this knife was kept in the dung heap and without this fact we cannot assume that he had buried the knife in the dung heap on the day of occurrence."
20. A noticeable feature of the two public witnesses proving recovery from Rab Nawaz and Ahmed Hayat appellants is that they are casual, chance and stray witnesses. Khan Amir (P. W. 16) proving recovery from Ahmed Hayat appellant stated "I came to Chakwal about three months ago, where Aurangzeb of my village came across me and asked me to the -Police Station to find out the progress of the case." Mohammad, Aslam (P. W. 15) proving the recovery from Rabnawaz stated "on 26th April 1976 I went to Chakwal where Samunder Lambardar met me and asked me to go to the.
21. Police Station to find out if any recovery had been effected from the accused". Samundar Lambardar and Aurangzeb were held back, Samunder as having been won over and Aurangzeb not cited at all.
22. The recovery from Ahmed Hayat bad taken place towards the end of the period of his police remand. Ahmed Hayat having been- arrested on 19-4.1976 the knife must have been, on prosecution's own case, hidden in the cowdung heap then or earlier. It is unlikely though not impossible that the blood stains on the knife would have remained intact to make is origin detectable. All these factors taken together would rather indicate' that a more positive corroborative evidence apart from motive was still required to satisfy the demands of safe administration of criminal justice-proof beyond all reasonable doubt. That degree or quality of corroboration is not forthcoming in the case of these two appellants. Viz. Ahmed Hayat and Rabnawaz. Hence their appeal is accepted, conviction and sentence set aside. They shall be released forthwith unless their detention is required in some other matter.