1. MUHAMMAD HALEEM, J -Respondents Nos. 1 and 2, alongwith Muhammad Ashraf were tried by the earned Sessions Judge, Campbellpur for the murder of Muhammad Aslam and while Muhammad Ashraf was acquitted, the respondent No. 1 was sentenced to death and to pay a fine of Rs. 3,000 or in default to suffer rigorous imprisonment for one year. Respondent No. 2 was sentenced to imprisonment for life and to pay a fine of Rs. 2,000 or icy default to suffer rigorous imprisonment for one year, by judgment dated 30-4-1974. Both the respondents appealed while the Sessions Judge made a reference for the confirmation of sentence of death passed on respondent No. 1. The petitioner preferred a revision seeking for the enhancement of the sentence passed on respondent No. 2. A Division Bench of the Lahore High Court by judgment dated 9-5-1975, accepted the appeal and acquitted the respondents. In consequence thereof the murder reference and the Criminal Revision were rejected, the appeal of respondent No. 2 against his conviction under section 1 3 of the Arms Ordinance, 1965 was also accepted and his conviction and sentenced were set aside. The petitioner now seeks special leave to appeal against that judgment.
2. The parties are related inter se. Ghulam Muhammad Khan, a Lambarda; died in 1939, leaving his surviving three widows, Mst. Bago, Mst. Akbar Jar, and Mst. Bakht. From Mst. Bago he had a son named Walayat who died issueless in 1947 and 3 daughters, Mst. Khursheed, Mst. Siftan (mother of Muhammad Aslam) and Mst. Goharjan. From Mst. Akbar Jan he had a son named Sher Khan, who is the father of Mahmood Khan P. W. 13, an eye--witness in the case. From Mst. Bakht he had two sons, Kala Khan and Yak; Khan. The acquitted accused Muhammad Ashraf is the brother of fist.
3. Bakht and respondent No. 2 is his son.
4. Walayat having died issueless the inheritance devolved under the Customary Law on his mother Mst. Bago who gifted the property to her three daughters in 1951 and this led to litigation. Kala Khan, Sher Khan and Yaki Khan filed a suit for a declaration that the gift was ineffective qua their reversionary rights in the event of the death or re-marriage of Mst. Bago which was decreed in 1952. Muhammad Ashraf in that suit acted as next friend of Kala Khan and Yaki Khan. Mst.
5. Khursheed did not marry and brought up Muhammad Aslam as her own child and got him educated till the graduation level. He used to reside with her and looked after her interests. The immediate cause for the murder was said to be that he was getting the house in which he was residing with Mst. Khursheed renovated which was disliked by Kala Khan who tried to dissuade Mst.
6. Khursheed two or three times not to get the house renovated, as he apprehended that she might give that house to the deceased, but she did not listen to him.
7. It was the prosecution case that on 2-11-1972, which corresponded to 25th of Ramzan and happened to be Thursday. Mst. Siftan went in the morning along with her son Muhammad Aslam and nephew Mahmood for Ziarat to the shrine of Baba Misar Shah in the area of village Dordad. On their way back after paying homage as they reached the place called Chhoi, the respondents Nos.
8. 1 and 2 and Ashraf came in front of Muhammad Aslam, duly armed with hatchets and a knife.
9. Respondent No. 1 gave a hatchet blow on the head of .The deceased. The second hatchet blow was given by Muhammad Ashraf which too landed on the same spot. As Muhammad Aslam was about to fall, respondent No. 2 gave a knife blow. Both Kala and Ashraf caused further blows with hatchets to Muhammad Aslam as he lay on the ground. Thereafter, they decamped to their village Arang.
10. Besides Mst. Siftan and Mahmood, one other person named Sardar Bahadur who was following them, also witnessed the incident. The deceased expired at the spot. Thereafter, Mst. Siftan scat Mahmood to inform her husband, Misri Khan who on getting the information came to the spot and from there he went to the police Station, Sadar Campbellpur where he lodged the First Information Report at 2-15 p. m. The same day. On being arrested the same day, both the respondents produced the crime weapons, namely, the hatchet and the knife which were reported to be stained with human-blood.
11. At the trial the prosecution examined Mst. Siftan P. W. 12, Mahmood Khan, P. W. 13, and Sardar Bahadur P. W. 14, to furnish ocular testimony. Evidence in regard to the recovery of the incriminating articles was also led in support of the ocular testimony. Mst. Khurshid P. W. 10 was examined to furnish evidence of motive. The trial Court accepted the motive impugned to respondent No. 1 but held qua the acquitted accused Ashraf and respondent Nemat that `no direct motive' was attributed to them. As to the ocular testimony the trial Court did not place reliance on Sardar Bahadur as his name did not transpire in the First Information Report. The trial Court was impressed by the evidence of Mst. Siftan and Mahmood but in view of the strained relations between the parties the trial Court held that it -required corroboration. It found such corroboration not only from the seizure of crime weapons which were stained with human-blood but also from the motive and the nature of injuries found on the deceased.
12. The trial Court held that the case of Muhammad Ashraf was distinguishable for the reason that neither motive was attributed to him nor was any recovery of incriminating articles made at his instance. In addition to it, the medical evidence suggested that the hatchet injuries could have been caused by the same weapon. All this created doubt and he was given the benefit of it and acquitted.
13. A Division Bench of the High Court upon scrutiny of the evidence held that the ocular testimony could not be relied upon without independent corroboration. The learned Judges disbelieved the evidence of the recovery of crime weapons because the attesting witness, Fazal Khan, was held to be related to the complainant party and as such could not be regarded as a dis--interested witness Another reason given by the learned Judges was that the recovery was made on the last day of the remand and there was no explana--petition as to why the recoveries could not be made earlier. The learned Judges did not feel inclined to rely on the evidence of the Police Officer who affected the recoveries. On this view of the matter the learned Judges held that there was no corroboration of the ocular testimony. As for motive it was held that it could not lend assurance to the ocular testimony in view of the bitter enmity between the parties. The injuries too were not relied upon as a place of corroborative evidence for, in the opinion of the learned Judges of the High Court they could not fix the identity of the assailants. Concluding the learned Judges felt doubtful about the participation of respondents Nos. 1 and 2 in the context of the material elicited in cross-examination of the prosecution witnesses and the defence evidence led by the respondents and the acquitted accused.
14. It was urged by the learned counsel for the petitioner that the learned Judges of the High Court have, for inadequate reasons discarded the evidence of recoveries of crime weapons. He further contended that mere relationship through a common ancestor was not sufficient to hold that the attesting witness Fazal Khan was partial. Again it was urged that there was no good reason to entertain doubt simply on the ground that the recovery was made on the last day of the remand.
15. Lastly, it was urged by the learned Counsel that the trial Court had given good reasons for accepting the evidence of the recovery of crime weapons and the learned Judges while disbelieving the evidence did not pay due regard to the reasons given by the trial Court.
16. The State counsel also supports the petition.
17. There is no divergence of opinion as to the presence of Mst. Siftan ands Mahmood. The High Court has differed from the trial Court in regard to the acceptance of the evidence of recovery of the crime weapons for reasons which require examination, lest there may not be a miscarriage of justice. We would, accordingly, grant leave to appeal to the petitioner. Non-Bailable warrants to issue against respondents Nos. 1 and 2, returnable to the District Magistrate, Campbellpur.