ASLAM RIAZ HUSSAIN, ACTG. C. J.-This petition is being disposed of after having been converted into appeal. - ' Muhammad Azam and Muhammad Akbar, petitioners who are real cousins, inter se, have sought Leave against the judgment of a learned Single Judge of the Lahore High Court dated 2-2-1980, dismissing their appeal in a case under section 302/34, P. P. C. And upholding their sentence of imprisonment for life and a fine of Rs, 3,000 each and or to undergo further R. I. Of 2 years in default of payment of fine.
' The two appellants who are accused of the murder of Muhammad Raman (deceased) at the Tonga Stand in Village Okbli Mohla, Tehsil Khushab, District Sargodha, at about 11-30 a.m. On 30-6- 1974. The matter was reported to the police by Muhammad Hayat (P. W. 8), brother of the deceased at Police Station Gunjial vide F. I. R. No, 111 dated 30-6-1974.
3. The facts of the prosecution case, briefly, are, that on the day and time of the occurrence Muhammad Hayat (P. W. 8), Muhammad Ramzan (deceased) and Muhammad Aslam (not produced), all of whom are tonga drivers, had parked their tongas at adda in Village Okhli Mohla and were sitting under the nearby chhappar. Muhammad Qasim (P. W. 9) was present there in order to catch bus. Muhammad Nawaz (P. W. 11) a cousin of Muhammad Hayat (P. W. 8) also happened to reach there. The two appellants suddenly turned up there armed with guns and fired at the deceased from a distance of 5/6 karams (25 to 30 feet) which hit Muhammad Ramzan and he fell down. Thereafter they fired more shots at him, while approaching Muhammad Ramzan, Azam accused fired another shot at his place placing the muzzle of the gun at a distance of 1" from his (Ramzan's) cheek. Muhammad Ramzan died at the spot and the accused ran away with their respective guns. Muhammad Hayat lodged the F. I. R. At the Police Station Gunjial as mentioned earlier.
4. The motive for the offence is stated to be that about 8/9 years prior to the occurrence Noor Muhammad, an uncle of the accused, had abducted the sister of Muhammad Hayat (P. W. 8) and about 4/5 years thereafter Muhammad Ramzan (deceased) had murdered the said Noor Muhammad for which he (Muhammad Ratnzan), Muhammad. Aslam P. W. And 3 others were challaned but were ultimately acquitted. It is alleged that the present murder was to avenge that murder.
5. After recording the F. I. R. Muhammad Afzal, S. I. (P. W. 12) went to the spot and apart from the blood-stained earth, recovered 6 empty '12 bore cartridges from the spot. The accused were arrested 3 days later on 3-7-1974 and each of them led to the recovery of one gun thereafter, the Investigating Officer sent the empty cartridges and the guns to the ballistic expert for examination, who found that some of the empty cartridges matched with each of the guns. The dead body of Ramzan had been sent to the mortuary for post-mortem examination and as many as 10 fire-arm injuries were found on the dead body. According to the doctor who conducted the post-mortem examination, all the wounds of entry had tatooing and blackening around them.
6. At the trial the prosecution relied on the testimony of 3 eyewitnesses, namely, Muhammad Hayat (P. W. 8), Muhammad Qasim (P. W. 9) and Muhammad Nawaz (P. W. 11) ; the evidence of recoveries as well as the medical evidence and the motive.
7. The appellants/accused pleaded not guilty but led no defence. The Trial Judge found them guilty vide his judgment dated 6-5-1977 and sentenced each of them to imprisonment for life and a fine of Rs, 3,000 or in default to undergo further R. I. For two years each. Both of them appealed to the High Court which was, however, dismissed vide the impugned judgment.
' The appellants, therefore, filed the present petition for Leave to Appeal. We issued notice to the Advocate-General and after converting it into appeal we are proceeding to dispose it of as such.
8. After hearing the learned counsel for the parties we feel that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt. Our reasons for this view are as follows : According to the eye-witnesses even the first shot fired by the appellant from a distance of 5/6 karams had hit the deceased as a result of which had fallen down. It is thereafter that they came nearer and fired further shots. The medical evidence, however, contradicts this version because an already observed the doctor found all the wounds of entry to have tattooing and blackening around them, which showed that they had been fired from less than for feet. The assertion that one of the injuries was caused by a shot fired while the muzzle of the gun was placed at a distance of 1' from the face of the deceased is-also not supported by the medical evidence. The injury in question is described in the post-mortem report as injury No. 1 and we find that it does not conform to the description given by th Modi's Medical Jurisprudence, of an injury which would have been caused from a distance of V, because in that case black as well as whitish gun powder would have been present around the injury. Evidence of recovery is also not altogether free from doubt because the investigating officer chose to make two cousins of the deceased as the witnesses of recoveries. As to the eye-witnesses, two of them, namely, Muhammad Hayat (P. W. 8) and Muhammad Nawaz (P. W. 11) are admittedly closely related to the deceased (being his brother and first cousin respectively) and had the same enmity with the accused party. Muhammad Hayat, P.
W. Was himself an accused in the case relating to the murder of Noor Muhammad alongwith Muhammad Ramzan (deceased) and had he been present at the spot he would also have been shot at by the assailants. Muhammad Nawaz P. W. Besides being a cousin of the deceased is merely a chance witness and the reasons for his presence have not been satisfactorily established.
As for Muhammad Qasim (P. W. 9), although he is not related to the deceased yet he is evidently a stock witness, because the defence has brought out during his cross-examination that he had appeared as a prosecution witness in a number of cases. As such before it can be relied upon, the testimony of these 3 witnesses would require independent corroboration, which is not forthcoming from the record of this case, ' In view of that has been observed above the appeal is accepted and conviction of the appellants is set aside. They shall be set at liberty if not required in any other case