' MUHAMMAD ISHAQ KHAN, J.-Pasharn Khan aged 27/28 years and his brother Mir Hatim Khan aged 26 years, sons of Azad Khan, Ahmad Khan aged 30/40 years son of Ibrahim Khan, Aslat Khan aged 26/27 years son of Mohabbat Khan, Mohabbat Khan aged (not given) and his brother Waris Khan aged 35/36 years son of Faizullah Khan, Haji Muhammad Ali aged 5.V56 years son of Haji Amir Khan and Haji Dur Muhammad aged . 48/50 years son of Haji Ibrahim Khan, all residents of Ahmad Khel, Tebsil Lakki, district Bannu stood their trial in the Court of Additional Sessions Judge, Bannu at Lakki under section 302/307/404/148/149, P. P. C.Tegistered vide F. I. R. No, 77, dated 15-5-1981, P. S. Lakki Marwat. All the accused were convicted under section 148, P. P. C. And were sentenced to undergo R. I. Three years each and to pay a fine of Rs, 2,000 or in default r" payment of fine to suffer S.
1. For three months each. They were also convicted under section 302/149, P. P. C. For the murder of Ghulam Muhammad deceased and sentenced to death and also to pay fine to the tune of Rs, 5,000 each or in default of payment of fine to undergo S. I. For three months. All the accused were further convicted under section 302/149, P. P. C., for the murder of Abdul Baqi deceased and sentenced to death each and a fine of Rs, 5,000 or in default to suffer S. I. For three months each.
They were further convicted under section 404/149, P. P. C. (two counts) and sentenced to undergo R. I. For three years and a fine of Rs, 2,000 on each counts, or in default of payment of fine to suffer S. I. For three months. All the accused were also convicted under section 307/149, P. P. C. And sentenced to under R. I. For seven years and a fine of Rs, 5,000 or in default further S. I. For three months. It was directed by the trial Judge that the fine if realised under sections 302/149, P. P. C.
(two counts) and section 404/149, P. P. C. (two counts), 1/4th thereof shall be paid to the legal heirs of Ghulam Muhammad deceased and 1/4th to the L. Rs, of Abdul Baqi deceased and the remaining amount shall go to the State. It was further ordered that out of the fine if recovered under section 307/149, P. P. C. Half of it shall be paid to P. Ws. Taj Muhammad Shadi Khan and Maazullab, and the remaining amount shall go to the State. The trial Judge further ordered that the death sentences are to be executed subject to confirmation by the High Court. The judgment was pronounced on 19-6-1983.
2. The convicts have filed the present appeal against their conviction and sentences and there is also Murder Reference (No, 3 of 1983) for the confirmation of the death sentences awarded to the convicts. Besides this Haji Taj Muhammad has filed a revision petition for the enhancement of the sentences passed under section 307/149, P. P. C. And the amount of compensation payable to the heirs of the two deceased and the three P. Ws. As all the three matters arise out of the same judgment, therefore, we will dispose them of by this single judgment.
3. According to the prosecution story on the eventful day i,e, 15-5.1981 the complainant Taj Muhammad P. W. 10, Shadi Khan P. W. 11, and Maazullab P. W. (not produced) alongwith Ghulam Muhammad and Abdul Baqi deceased went out from their village Ahmad Khel for the hills of Zarifwal for hunting; that out of them, Ghulam Muhammad and Abdul Baqi deceased were armed while the remaining three P. Ws. Were unarmed; that Ghulam Muhammad deceased was armed with a D. B. Shot-gun and a bandolier containing 25 live cartridges while Abdul Baqi deceased had on his person an S. B. Shot-gun with a bandolier containing 25 live cartridges, that after the hunting they were returning to their village and when reached at a place known as `Khula Tangi'. The eight appellants, naniely, Mohabbat Khan, Aslat Khan, Mir Hatim, Muhammad Ali, Dur Muhammad, Waris Khan, Ahmad Khan alias Amand and Pasham Khan appeared with guns that at that time both the deceased were going ahead of the three P. Ws. That seeing them, Mohabbat Khan appellant raised his voice saying that the chance was available and on this, Mohabbat Khan, Waris Khan, Aslat Khan and Mir Hatim appellants fired at Ghulam Muhammad who was bit and fell to the ground; that the remaining appellants Muhammad Ali, Dur Muhammad, Ahmad Khan alias Amend and Pasham Khan at once fired at Abdul Baqi deceased, who was also bit and fell down to the ground; that thereafter all the appellants fired at the complainant and P. Ws. Shadi Khan and Maazullah but luckily they escaped unhurt; that as the three P. Ws. Were empty handed, they ran away to save their lives; that after having run for some distance they looked back .Towards the appellants and saw that they were standing by the side of Ghulam Muhammad and Abdul Baqi deceased; that when the appellants left the place, the P. Ws. Went back to the two deceased and found them dead ; that the appellants took away with them the fire-arms which were in possession of the two deceased ; and that as the deceased were attacked suddenly by the appellants, they could not fire on them in their defence. The motive given in the F. I. R. Is blood-feud enmity and attempted murders between the parties.
4. The report about the occurrence was recorded by Abdul Hamid Khan A. S.-l. P. W. 12, which' was incorporated in the F. I. R. No, 77 dated 15-5-1981 at 2100 hours. The time of occurrence has been given in this report as `Dopehr Wela'.
5. The complainant took the dead bodies of the two deceased to the police station with the help of co-villagers through Bus No, BNA-1555. Abdul Hamid Khan, A. S. I., P. W. 12, after recording the report of the complainant, prepared injury sheets Exh. P. C. And Exh P. F. In respect of Abdul Baqi and Lihulam Muhammad deceased respectively. He also prepared their inquest reports Exh. P. D. And Exh. P. G. He then sent the dead bodies to the mortuary for post-mortem examination, under the escort of Dila war Khan and Muhammad Nawaz, constables, P. Ws. 8 and 9 respectively. He then left for the spot alongwith other police officials and the complainant, but as it was dark, he remained in village Katta Khel for the night and on the following morning conducted the house search of the appellants, who were absent. He then inspected the spot in presence of the complainant and other P. W. And prepared the site plan, Exh. P. B. He took into possession blood-stained earth from the spot vide recovery memo. Exh. P. M. In respect of deceased Ghulain Muhammad and sealed it accordingly. Similarly, he also took into possession blood-stained earth in respect of Abdul Baqi deceased vide memo. Exh. P. N. And sealed the same in presence of the marginal witnesses. He took into possession a live cartridge marked S. G. Of *12 bore from the spot vide memo. Exh. P. J. The cartridge in Exh. P. 10, which was sealed into a parcel vide the same memo. Vide recovery memo Exh. P. H., the I.
0. Recovered from other points shown in the site plan two spent bullets Exh. P. 7, two pieces of lead Exh. P. 8 and one brass metal piece Exh. P.
9. As the appellants were not available in the village, he applied for the warrants of arrest under section 204, Cr. P. C. In respect of Aslat Khan, Mir Hatim, Ahmad Khan and Pasham Khan vide application Exh. P. W. 12/4 dated 3-6-1981. He also applied for proclamation under section 87/88, Cr.
P. C. Against the said appellants vide application Exh. P. W. 12/5 dated 7-6-1981.
6. Dr. Muhammad Yunus, P. W. 6, performed the autopsy on the dead body of Abdul Baqi deceased and found the following injuries on external examination :- (1)Entrance wound at the middle of right posterior axillary line, size r x r
(1) Exit wound on the front of the chest at the middle of the sternal body size 2' x
(2) Entrance wound on the lateral side of left shin (lorant), size r x 1'.
(3) Exit wound at the left calf (middle) size 2' X 2".
(4) Entrance wound at the left elbow joint lateral side, size f" x 1".
(5) Exit wound at the medial side of left elbow joint, size 1' x 1'.
(6) Lacerated wound at the tip of left big toe, size X ' On internal examination the doctor found the pleura, right lung, heart and pericardium to be injured. The sternum, left elbow and left tibia were found fractured. In the opinion of the doctor, the deceased died due to injuries to the vital organs and profuse haemorrhage. The time that elapsed between injuries and death, according to the doctor, was 10 to 15 minutes a d between death and post-mortem examination, 16 to 19 hours. The same doctor also performed post-mortem examination on the dead body of Ghulam Muhammad deceased and on external examination found the following injury les on his person :-
(1) Entrance wound on the lower end of the lateral side of the left thigh, 3" above the knee joint, size ir x }".
(2) Exit wound on the medial side of the left thigh two ches above the knee joint, size 1" x 1".
(3) Entrance wound on the right knee joint (medial side), size ID x ii.
(4) Entrance wound on the back of right side (middle), size r x i..
(5) Exit wound in the right iliac fossa, size 1' x I".
(6) Entrance wound in the chest (back) right side one in behind the right posterior axillary line, size i" x I".
(1) Entrance wound No, 7 in the chest (back) one inch above he wound No, 6, size i" x r.
(2) Exit wound in the neck (right side) base, size 1" X 1'.
(3) On internal examination the doctor found that the pleura, large intestine liver alongwith peritoneum were injured. The s found healthy with 30 c.c. Of fluid contents. The left thigh fractured.
In the opinion of the doctor the deceased died du done to the vital organs and produced haemorrhage. In his opine time between injuries and death was 30 to 45 minutes and between post-mortem examination between :4 and 18 hours. This witness that the injuries on the person of Ghulam Muhammad decease which could cause instantaneous death and similar is the case of deceased. Right lung, so much was found to damage n, probable death and also stated were such Abdul Baqi
7. In order to prove their case the prosecution examined as many as twelve witnesses, which include the statements of the doctor and the Police officers and officials. Taj Muhammad P. W. 10 and Shadi Khan P. W. 11 are the only eye-witnesses who appeared at the trial. Maazu lah Khan was, however, not produced by the prosecution, for reasons best known to them, at the trial.
8. Taj Muhammad complainant appeared as P. W. 10 at the trial and stated the same story as given in the First Information Report, Ex . P. A. But with some improvements. He also gave the relationship inter se tween the appellants and the prosecution witnesses. He stated that Aslat ppellant is the son of Mohabbat appellant. Warts appellant is the brother of Mohabbat appellant, whereas Mir Hatim and Pasbam Khan appellants are the sister's sons of Mohabbat appellant as well as his `tarboors'. He further stated that Muhammad Ali appellant and Mohabbat appellant are cousi s inter se. Dur Muhammad and Ahmad Khan alias Amand appellants, according to the witness, are Tarboors of Mohabbat and Muhammad Ali v.-Hants. He further stated that Ghulam Muhammad deceased was his brother Abdul Baqi deceased was his Tarboor. Shadi Khan P. W. Is the uncle of the witness while Maazullah P. W. Is his Tarboor.
9.Shadi Khan P.W. 11 testified the same details which w re given by Taj Muhammad P,W. 10 in his statement. But both the win have made certain improvements in their statements, to which we would make reference in the following paragraphs of this judgment.
10. At the close of the prosecution case, all the eight appellants were examined under section 342, Cr. P. C. And after having admitted their relationship infer se, they denied the remaining questions.
They, however, did not wish to produce any defence.
11. After hearing the arguments of the learned counsel for the accused-appellants and the State, the trial Judge convicted and sentenced all the eight appellants vide his judgment dated 19.6-1983, as already indicated above.
12. Messrs Zahoor-ul-Haq, Bar-at-Law and Muhammad Ishaq Khan Kundi, Advocates, appeared for the appellants; Haji Saadullah Khan Mian Khel, Assistant Advocate-General appeared for the State and Mr. Muhammad Karim Anjum Qasuria, Advocate represented the complainant before us. The learned counsel for the appellants attacked the impugned judgment of the trial Judge on the following grounds : ' That the learned trial Judge has not only misread the evidence recorded at the trial, but his entire approach and appreeiation of evidence disclose a pre-conceived notion about the facts of the case; that the trial Judge has completely misunderstood the concept of "chance witness" and his observations in para. 29 of the impugned judgment need no comments. Actually in this case the entire prosecution evidence consisted of the statements of two persons; viz. Taj Muhammad P. W.
10 and Shadi Khan P. W. 11, who are admittedly close relations of the two deceased e. g. Taj Muhammad is the brother of Ghulam Muhammad deceased and Shadi Khan P. W. a real uncle of the said deceased, therefore, both were 'chance witnesses' par excellence. The trial Judge has misdirected himself on a most crucial point, leading to a gross miscarriage of justice; th't no recoveries were made from any of the appellants and there is absolutely no support for the charges under section 404/149 or 307/149, P.P.C. That the learned trial Judge has failed to appreciate the glaring conflict between the medical evidence and the prosecution case, which is further supported by the location- of recovered spent bullets on the spot. The learned trial Judge has tried in vain to explain away all the awakward facts and circumstances, which must have stared him in the face; that the learned' trial Judge has simply relied on the bare statements of the two prosecution witnesses. Taj Muhammad P.W. 10 and Shadi Khan P.W. 11, without making any effort to scrutinize their testimony in accordance with the well-established principles of criminal jurisprudence. The back ground of blood-feud, the close relationship, the clear unexplained delay in lodging the F.I.R., their extraordinary claim of being in the company of the two deceased, without any rhyme or reason (only to figure as witnesses at the trial) have all been brushed aside or ignored; that the allegation of abscondence has been given undue importance without caring for the quality of basic evidence which is sought to be corroborated by it; that inherent improbabilities of the prosecution case have received scant attention. The implication of the testimony of the I.O., Abdul Hamid A.S.-1. P.W. 12, and admissions made in cross-examination have damaged the prosecution case beyond repair; that the nature of motive alleged by the prosecution also throws a cloud of doubt over the entire pattern of prosecution story. Obviously it was an unwitnessed crime and the entire enemy clan has been roped in; and that the site plan is also in direct conflict with the prosecution evidence. The learned counsel for the appellants also cited case-law in support of their arguments, to which reference will be made in due course.
13. First of all we 'take the statements of the alleged two eye-witnesses, ,t namely Taj Muhammad P.W. 10 and Shadi Khan P.W.
11. We have giveni our anxious consideration to these two statements found that the same are full of improvements when compared with the first information report, Ex. P. A., lodged by Taj Muhammad P.W.
10. In the F.I.R., they stated that all the eight appellants emerged are once and started firing at the deceased simultaneously, whereas in his statement raj Muhammad P.W. 10 stated that the appellants, who were in two groups, fired at the two deceased one after the other. He also stated in the F.I.R. That they left for hunting early in the morning but in his statement Taj Muhammad P. W. 10 stated that they collected in the `Baithak' at sunrise time, which, usually, is not the time for hunting.
In the F.I.R., the time of occurrence has been shown as `Dopehr Wala' but in his statement Taj Muhammad P.W. 10 has given it to be `afternoon' time. This P.W. Also stated that after the occurrence he left for his village in order to bring 'cots' and left the two P.Ws. Shadi Khan P.W. 11 and Maazullah (abandoned) with the dead bodies but the I.
0., Abdul Hamid Khan, A.S.-I., P. W. 12, whose statement we will discuss later on, has contradicted him on this point. It is also in the statement of Taj Muhammad P.W. 10 that he had seen the appellants rising from the bushes and soon after their rising, they started firing at the deceased who were hit and fell down to the ground. It is also in his statement that at the time of firing all the P.Ws. Were facing the assailants but strangely enough none of them was hit. This witness also stated that after the firing they started running and after covering some distance they looked back and when saw that the appellants had ICI the spot, they came back to the deceased and found them dead. But the doctor, whose statement will be referred later on, has given sometime between the injuries and death of the two deceased. Similar is the statement of Shadi Khan P.W. 11 who has also given the time of occurrence to be afternoon. This witness has also given the distance, which they bad covered after the firing, to be 80/100 paces. It is also in the statement of Taj Muhammad P.W. 10 that deceased Ghulam Muhammad was his brother, Abdul Baqi deceased was his `Tarboor'.
Shadi Khan P.W. I is his (Taj Muhammad's uncle while Maazullah P.W. Is his Tarboor. In these circumstances and keeping in view the contradictory statements of the two P.Ws. We hold that no reliance should be placed on such statement of highly interested witnesses. If any authority is needed in support of our observations, reference case conveniently be made to a case reported in Sahib Masih and others v. The State (1) wherein their Lordships of the Supreme Court of Pakistan hay observed as follows :- ' S. 302/324/323/149-(Murder case)--Appreciation of evidence-Injuries such as could not be said to have been inflicted in same occurrence and also stated by doctor to have been likely to be self- inflicted-One of prosecution witnesses stating accused having muffled their faces-Witnesses also alleged to be anxious to run away from place of occur recce to save their own skin-Witnesses in such situation not likely to be watchful as to what happened particularly when running away in darkness-Medical evidence detracting from consistency of prosecution case-Prosecution alleging deceased having been given injuries by diverse weapons like sword, hatchet, Darant and Dang with spike but no injury on person of deceased attributable directly to Dang or Dang with spike- Prosecution witnesses interested -Certain features of case reducing intrinsic value of statements of witnesses and making them suspicious-Held, testimony of interested witnesses being uncorroborated and not being found intrinsically sound, not sufficient, to warrant conviction and sentences of appellants." {{FOOT NOTE}}
(I) 1982 SCM R 17$ {{FOOT NOTE}}
14. Taj Muhammad P.W, 10 has given the distance between his village and the spot to be 5/6 miles and between the village and the police station between 12/13 miles. It is also in his statement that the dead bodies were brought to the P. S. In a Bus. The occurrence according to the F.I.R. Took B place at noon time whereas the report was lodged at 2100 hours, for which no satisfactory explanation is forthcoming in the statement of the prosecution witnesses. Therefore, we are of the view that there is unexplained delay in lodging the first information report, which also reacts on the prosecution case.
15. Next we come to the site plan, Exh. P.B. Prepared by Abdul Hamid Khan, A. S.-I. P.W.
12. In this site' plan, presence of the two deceased has been shown at points 1 and 2, whereas the three alleged eye-witnesses have been shown at points 3, 4 and 5. The eight appellants are shown to be present at points 6 to 43. Point No, 14 is the place to which after the firing the eye-witnesses have reached after covering 80 paces. Points 'A' and 'B' are the places from where the 1.
0. Had recovered four pieces of lead bullets lying in an area of three feet. Point 'C' lying towards East in the site plan denotes the place wherefrom one bullet was taken into possession by the 1.
0. From point 'D' the I.
0. Had recovered one live cartridge 'of 12-bore S. G. ELEY. It is important to note that points 'A' and 'B' are at a height of 15 feet from the ground level whereas point 'C' is at a height of 7 feet. If we keep the recovery of four lead bullets recovered from points ',V and '13' in view, then it would mean that the shots at the two deceased and complainant party were fired from East and West, which is n- the prosecution case. The pictorial diagrams of the two deceased Exh. P. E./1 of Abdul Baqi and Exh.
P.
0./i of Ghulam Muhammad, show that the direction of the injuries were from downwards to upwards because the entrance wounds on both the deceased are at a lower level whereas their exits are at a higher level. Moreover, the deceased were fired at either from back or right side.
Besides this, it is nobody's case that the assailants were on the eastern direction of the deceased, therefore, the recovery of four lead bullets from points 'A' and 'B' his not been explained by the prosecution. The venue of occurrence is locate in the mountains and keeping in view the location of the points shown by the I.
0. Inference could be drawn that the assailants were sitting at a lower level while the complainant party was at a higher level, therefore, the possibility of the assailants having been gone unnoticed by the prosecution witness cannot be ruled out.
16.It is in the statement of Abdul Hamid Khan, A. S.-I., P. W. 12, that he had not observed the presence of Maazullah and Shadi Khan P. Ws. At the time of recording the report of Taj Muhammad P. W. In the police station. He further stated that after recording the report of the complainant, he had inquired from him about the presence of Maazullah and Shadi Khan P. Ws., who told him that they had not come with the complaint to the P. S. He (1.
0.) stated that as it was dark, therefore, he postponed the spot inspection till next morning and himself went to village Kata Kbel for spending the night there, and next morning came back to village Ahmad Khel and conducted the house search of the accused-appellants. In the said statement at another place, the I.
0. Admitted that after the house search of the accused-appellants he started towards the `Chowk' of the complainant party, where the complainant alongwith Maazullah and Shadi Khan P. Ws. Were present but he did not record the statements of Maazullah and Shadi Khan I) Ws. And straightaway accompanied them to the spot. All the above instances show that the I. Co, had not investigated the case fairly otherwise he would have recorded the statements of Maazullah and Shadi Khan P.
Ws. At the first available opportunity. It is in his statement that when he came to village A hmad Khel, both Maazullah and Shadi Khan P. Ws. Were not present and he directed the complainant to make them available next morning, but next morning in spite of the fact that both the said P. Ws.
Were present in'D the Chowk of the complainant party alongwith Taj Muhammad P. W. 10, yet the I.
0. Did not record the statements of Maazullah and Shadi Khan P. Ws. The statement of the I.
0. When read as a whole contradicts the prosecution case itself and, therefore, we hold that the prosecution case is not free from reasonable doubts.
17. Lastly, we come to the statement of Dr. Muhammad Yunus, P. W. 6, who conducted autopsy on the dead bodies of the two deceased. He had clearly stated in his statement that time between injuries and death with regard to Abdul Baqi deceased was 10 to 15 minutes, whereas with regard to Ghulam Muhammad deceased was 30 to 45 mintues. But when we look at the statement of Taj Muhammad and Shadi Khan P. Ws. We find that both these witnesses have categorically stated in their statements that after the firing they started running and after covering about 80 paces when they returned to the place where both the deceased were lying, they found them dead. This reference shows that the medical evidence contradicts the statements of the two eye-witnesses. A reference to pictorial diagram of the two deceased, Exh..P. E./1 andzExh. P. G./1 also shows that entrance wounds received by the two deceased were at lower level whereas their exits were at a higher level. This admitted position of the seats of injuries goes a long way to prov that the assailants were sitting at a lower level while firing at the decease party, therefore, the inference and the only inference which could be drawn in such like situation is that the complainant party had not seen the assailants. The medical evidence clearly contradicts the statements of the prosecution witnesses and we would like to reproduce below the relevant portion of the statement of Dr. Muhammad Yunus P. W. 6, which is as follows :- "The major injury on the body of Abdul Baqi deceased is the one with the entrance wound No, 1 with the exit wound No,
2. It is correct that the exit wound is slightly on the higher level than the entrance.
It is correct that the injury No, 1 may have been caused from the right side or may have been caused from the back side but it is definitely from the right side. Injury No, 3 has not been caused from The front. Its exit is on the back of left calf. Entrance of injury No, '3 has been caused from left side. It is in the middle of front and lateral part of the body. Injury No, 5 with exit wound No, 6 is also caused from the left side. It is correct that injuries Nos. 3 and 5 are minor injuries as compared to injury No, 1 but it is wrong to suggest that injuries Nos. 3 and 5 cannot be fatal. It is correct that on receipt of injury No, 1, the victim could not remain in standing position. However, if he had received injuries Nos. 3 and 5 prior to injury No, 1, it would be possible for him to remain in standing position.
In the case of deceased Ghulam Muhammad, injury No, 7 is the entrance wound of exit wound No, 8, exit injury No, 8 is on the right side at the base of neck while its entrance wound No, 7 is also on the same 'side on the lower level than the exit wound. Entrance wound No, 6 has got no exit wound and a bullet was recovered from the body of the deceased. Injury No, 4 is on the right thigh on the back. Its exit is No, 5 which is in the right iliac fossa and is at a higher level than its entrance wound No,
4. It is correct that injuries Nos. 4, 6 and 7 are on the right side back of the body. Except wound No, 6, all the other wounds described above have got their exists on a higher level than their entrances which have been caused. From the right back side. Injury No, 1 is separate than those injuries. Injury No, 1 has got its exit No, 2 and it is caused from left to right. Injury No, 3 has got no exit wound. -It is on the right knee joint which also appears to have been caused from the left side. It is correct that injuries Nos. 1 and 3 are minor injuries as compared to other injuries. Injuries Nos. 1 and 3 can also be fatal. Instantaneous death cannot be caused from injuries Nos. 4, 6 and 7 and a man could remain in standing position with injuries for some .Time. In case if both the deceased namely Ghulam Muhammad and Abdul Baqi have been fired upon through one, volley of shots at the same time, then their injuries would have been caused from more than one side and not from one side. Normally when the exit wound of an injury happens to be at upper level than the entrance, the possibility and probability of such case could be that the injury has been caused by a person shooting from a level than the level of the victim."
' The statement of the doctor clearly shows that both the deceased have received entrance wounds on the back with their exits on the front, which again contradicts the prosecution story viz. That at time of occurrence both the deceased and the complainant alongwith the P. Ws. Were going to their village when the appellants emerged from the bushes and fired at them. Taj Muhammad P. W. 10 has clearly stated that at the time of firing the appellants were facing them.
Had the deceased been facing the appellants, the entrance wounds must have been on the front portion of their bodies and the exits on their backs, which is not the case in hand. Besides this, as earlier stated, the doctor has given time between injuries and death of Abdul Baqi deceased to be 10 to 15 minutes and between injuries and death of Ghulam Muhammad deceased, to be 30 to 45 minutes but both the witnesses Taj Muhammad P. W. 10 and Shadi Khan P. W. 11 have unanimously stated at the trial that when the accused decamped form the spot after the firing, they came back after covering a distance of 80 paces and found both the deceased already dead. As such, here also the statements of the eye-witnesses" have been contradicted by the medical evidence.
Another important factor which emerges in the statement of the doctor is that the dimension of the injuries sustained by the two. Deceased would show that three types of fire-arms F were used in the commission of the offence but the complainant party had charged eight persons for the same, which shows that they had put the net so wide so as to involve whole male member of the accused family.
18. In view of the above discussions we hold that the prosecution case is replete with major doubts.
There is unexplained delay in lodging the first information report in the police station, the statement of the prosecution witnesses have been contradicted by the medical evidence and the site plan.
There is previous enmity between the parties, therefore, the possibility of a false charge cannot be ruled out.
19. Learned counsel appearing for the appellants have cited Maz v. The State (1) in support of their contentions. The observations made therein are as follows :- "Evidence-Pakistan or interested evidence-When may be relied upon-without corroboration and when corroboration necessary-Nature of corroboration Rule of prudence.
' Whenever interested persons claiming to be eye-witnesses of an occur Fence charge persons against whom they have some motive for false
(1) PLD 1960 SC 387 ' implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one personally with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt.
' Where, in a case of partisan ocular evidence, the High Court felt it necessary to look for corroborative evidence, and having found such evidence in the alleged circumstance, that these witnesses had mentioned the names of the accused to the Lambardar of the village (who was a prosecution witness) an hour after the occurrence, the High Court did not proceed to test the veracity of the corroborative statement but just assumed its correctness, considering only .The effect of its acceptance and on appraisal of the evidence in the Supreme Court, the corroborative statement was found to be "false" or "contradictory : ' Held, that the conviction of the accused was not justified."
In another authority cited by them which is reported in Nawaz All and another v. The State (1), their Lordships of the Supreme Court have observed as under :- "S. 302-Evidence, appreciation of-Eye-witnesses stating' three shot having been fired by three assailants but five empties recovered from spot-Distance of firing stated to have been five paces but four of five entrances of wounds having charring marks-Eyewitnesses emphatic as to assailants having fired at deceased when deceased in act of walking towards them but one of entrance wounds found on back of deceased-Cause of death haemorrhage but no blood found at piece of falling of deceased-Testimony of witnesses, held, doubtful in circumstances of case."
' In the last authority reported in The State v. Ashraf and others (2), the following to meet observations have been made :- ' S. 302-Murder - Evidence appreciation of 7 Eye-witnesses highly {{FOOT NOTE}}
(1) 1981 SCM R 132 (2) 1983 P Cr. L J 2566 {{FOOT NOTE}} ' interested being close relations of deceased and at the same time also inimical towards accused on account of a previous murder-No corroboration provided by medical evidence to such ocular evidence-Crime chhuris allegedly recovered from accused not bloodstained and as such not connecting them with offence-Prosecution, held, failed to bring home guilt of accused beyond reasonable doubt, in circumstances."
20. Accordingly, while in respectful agreement with the above-cite judicial pronouncements of the superior Courts and keeping in view the circumstances of the case, we hold that the prosecution has miserably failed to bring home the charges to the appellants beyond reasonable doubts, the benefit of which must go to the appellants. As such, we accept this appeal, set aside the conviction and sentences of the eight appellants and acquit them. The death sentences passed on them are not confirmed. We further direct that they be set at liberty forthwith if not required in any other case.
21. For the above reasons, the revision-petition for enhancement of the sentences of the eight appellants and amount of compensation automatically fails and is hereby rejected.
Murder reference No, 3 of 1983 is answered in the negative. .01.1111,.....1