' IJAZ NISAR, J.--Allah Wasaya (35) and his brother Dost. Muhammad (30) sons of Ghulam Haider, caste Jumwani, resident of Basti Jumwani Tehsil and District D.G. Khan were tried by the learned Sessions Judge, D.G. Khan for the murder of Fazal Ali deceased. Vide his order, dated 21-11-1982 he convicted both of them under section 302/34, P.P.C. Allah Wasaya appellant was sentenced to death while Dost Muhammad was sentenced to imprisonment for life. They were also fined Rs,5,000 each or in default to suffer R.I. For one year. They were further ordered to pay a sum of Rs,5,000 each as compensation to the legal heirs of the deceased or in default to suffer 6 months' imprisonment.
2. The appeal filed by them and the connected murder reference will be disposed of by this order.
3. Sajjad Hussain P.W.6 son of the deceased had abducted Mst Zohran, sister of the appellants which led to the occurrence. On the fateful day Fazal Ali deceased had gone to D.G. Khan alongwith his wife Mst. Shahzadi P.W.7 for appearing in Court in connection with a case. Mst. Shahzadi had accompanied him for consulting a doctor. Both of them came back by a bus and reached Shadan Lund Bus Stand at about 4-00 p.m. Shortly after alighting from the bus they set out for their house.
They had hardly covered a few paces when Allah Wasaya appellant armed with a Kati (Churri) P.4 and Dost Muhammad appellant armed with a stick P.5 attacked the deceased. Dost Muhammad inflicted a stick blow on his head while Allah Wasaya gave Kati blows to him, as a result of which he fell injured and died instantaneously. Sajjad Hussain son of the deceased P.W.6 who was incidently present at the bus stand and Tagia another relation of the deceased witnessed the occurrence.
Sajjad Hussain proceeded to Police Station Kala and lodged the F.I.R. Exh.P.G. On the same evening at 4-30 p.m. The distance between the spot and the police station, being 8 miles.
4. After recording the F.I.R. Haq Dad, S.I. Reached the spot, prepared the injury statement Exh.P.H.
And the inquest report Exh.P.J. Of the deceased and secured blood-stained earth from the spot through memo. Exh.P.D. On 2-10-1981 Azeem Khan Lambardar produced the appellants before him.
He arrested them. On 3-10-1984, Allah Wasaya led to the recovery of blood-stained Churri P.4 from a brick kiln near Darbar Shah Kamal which was secured and sealed into parcel through memo. Exh.
P.E. On the same day Dost Muhammad appellant led to the recovery of stick P.5 from a Jal tree near Darbar Shah Kamal which was taken into possession through memo. Exh.P.F. Ghulam Hassan P.W.5 and Ijaz (given up) attested the recovery. After investigation the appellants were challaned.
5. Churri P.4 was found to be stained with human blood by the serologist vide his report Exh.P.L.
6. Dr. Capt. Ghulam Farid P.W.1 conducted post-mortem examination on the dead body of Fazal All deceased on 1-10-1981 at 9-30 a.m. And found the following injuries thereon:-
(1) A lacerated wound 5" x 1" x brain deep on the back and left side of the head, the underlying bones, brain and membrane lacerated and badly injured. There was compound communited fracture of the skull.
(2) An incised wound 1" x 1/3" x visceral deep on the front of the left lower chest. The mesentry was coming out of the wound and it was oblique in direction.
(3) An incised wound (stab wound) 1" x 1/3" x visceral deep at the left hypochondrium. The intestine was coming out of the wound and cut.
(4) A stab wound 1" x 1/3" x visceral deep near and to the left side of injury No,3.
(5) A stab wound 1" x 1/3" x visceral deep on the front of the left half of the abdomen, about three inches to the left of the umblicus.
(6) A stab wound 1" x 1/3" x visceral deep on the front of left lower chest, the underlying ribs cut and intestines coming out of the wound.
(7) Four stab wounds each measuring 1". x 1/3" on the left side of the lower chest in an area of 2" x 2".
(8) Four stab wounds each 1" x 1/3" visceral deep on the left side of the Dhest on its lower part in an area of 2" x 2".
(9) An incised wound 11/2" x 1/4 x muscle deep on the front of the left side of the abdomen, above the anterior superior iliac spine.
(10) An incised wound 1/2" x 1/4" x muscle deep on the outer aspect of the left thigh in its upper part.
' The skull, membrane, brains and thorax wall were injured. Stomach was healthy and almost empty. Bladder was full of urine. All the injuries were anti-mortem. Injury No,1 was caused by blunt weapon and the rest by sharp-edged pointed weapon. Injuries Nos.9 and 10 were simple while injuries Nos.1 to 8 were individually and collectively fatal. Death was due to shock, haemorrhage and injuries to the vital organs. The duration between injuries and death was immediate and that between death and post-mortem 12 to 18 hours. Exh.P.A. Is the post-mortem report. Exh.P.A./1 and P.A./2 are the diagram of the injuries.
7. The appellants pleaded not guilty to the charge and denied the prosecution allegations. They also denied the recoveries at their instance. They attributed the case to enmity. Allah Wasaya appellant produced copy of the complaint Exh.D.A. Filed by the Local Council Shadan Lund on 15-5- 1981 and copy Exh.D.B. Of the interim order passed by the City Magistrate D.G. Khan, dated 30-9- 1981. Exh.D.A. Is the complaint against Allah Wasaya appellant for solemnizing second marriage during the subsistence of his former marriage without necessary permission in violation of the Family Laws. Exh.D.B. Is a copy of the interim order showing the presence of Ghulam Haider appellant in the Court of Magistrate 1st Class, D.G. Khan in connection with the complaint filed against him under the Family Laws Ordinance.
8. The prosecution examined Sajjad Hussain P.W.6 and Mst. Shahzadi P.W.7 as eye-witnesses while Ghulam Hassan P.W.5 was examined to prove the recoveries from the appellants. Tagia a nephew of the deceased who was also said to have witnessed the occurrence was given up as having been won over. Sajjad Hussain and Mst. Shahzadi P.Ws. Also furnished the motive. Ghulam Hassan P.W.5 testified to the recoveries of Churri and Soti from the appellants. Ijaz, the other recovery witness was given up being unnecessary. Haq Dad, S.I P.W.8 investigated the case and deposed about recoveries.
9. Relying on the ocular evidence, the medical evidence, the motive and the recoveries, the trial Court convicted and sentenced the appellants as stated above.
10. Impugning the judgment, the learned counsel for the appellants states that the eye-witnesses are interested, and inimical, independent witnesses though present were not examined. The medical evidence contradicts the ocular testimony, the F.I.R. Was concocted and lodged after deliberations. The time of occurrence was advanced to show that the occurrence had taken place during daylight. The recoveries also do not stand established through independent evidence.
11. Sajjad Hussain P.W.6 is son of the deceased while Mst. Shahzadi P.W.7 is his widow. As regards existence of enmity between the parties the material on record shows that the deceased had complained to the Chairman, Union Council that Allah Wasaya appellant had solemnized a second marriage in the presence of his first marriage without the permission of the Union Council. He used to pursue that case and appeared in the Court on various dates of hearing. He felt aggrieved because the first wife of Allah Wasaya appellant was his daughter. Sajjad Hussain P.W. Admitted that Haji a brother of Allah Wasaya appellant had got a case registered at Police Station Kala against him, his deceased father, his mother and sister for having abducted Mst. Zohran, sister of the appellant. He further admitted that Mst. Zohran had been recovered from his house. According to him he had moved the High Court that Mst. Zohran had been illegally kept in Darulaman and she be set at liberty and restored to him. The said petition was rejected and Mst. Zohran was handed over to her father. Sajjad Hussain P.W.6 had also moved the Family Court for restitution of conjugal rights. The case regarding the abduction of Mst. Zohran was still pending when this occurrence took place. Sajjad Hussain admitted that his sister Mst. Hajran alias Rugia did not go to the house of Allah Wasaya appellant after the registration of Zina case against them. According to Sajjad Hussain P.W. Allah Wasaya appellant was sentenced to one year's R.I. Under the Family Laws Ordinance for solemnizing second marriage in the presence of his first wife. According to him Mst.
Ruqia filed a suit for dissolution of marriage against Allah Wasaya appellant which is still - pending.
He categorically admitted that during the day of occurrence both the parties were at daggers drawn with each other.
' Learned counsel for the appellants states that the deceased was not a person of good character.
Sajjad Hussain P.W. Admitted that the deceased had litigation against Khosas and Buzdars in connection with land. Ghulam Hassan P.W.5 stated that the deceased had abducted Mst. Shahzadi P.W. Who was married to one Miroo Shah, got her marriage dissolved from a Court and then married her. Miroo Shah aforementioned is still alive. Sajjad Hussain P.W. Could not deny the suggestion that the deceased had brought a case under section 325, P.P.C. Against one Zareen and his uncle Nabi Bakhsh. According to Sajjad Hussain, there may be 800/900 inhabited houses in Shadan Lund. He admitted that hundreds of buses, trucks, cars and other vehicles passed through the place of occurrence and there were some shops which were open at that time and had customers. According to him the shopkeeper and the persons present in the bazar had also seen the occurrence. Mst. Shahzadi also admitted that some persons from Bazar had also come running and raising alarm but strangely none of those persons had been examined by the prosecution. The Investigating Officer made a damaging statement by admitting in cross-examination that he had examined the Lambardar and Member Union Council Shadan Lund who claimed to have seen the occurrence but could not give any satisfactory explanation for not citing them as witnesses. Sajjad Hussain P.W.6 could not give any satisfactory explanation for his presence at the spot. According to him he had gone to the bus stand to find out as to why his father had become late. Tagia P.W. Was already present there per chance, he said. Mst. Shahzadi P.W. Stated that she had accompanied the deceased because she was suffering from multifarious diseases which she could not tell and further that on earlier occasions she used to go to D.G. Khan alone. According to her there was a big hospital in Shadan Lund wherefrom she had been getting treatment. She stated that on the day of occurrence the doctor at D.G. Khan who was consulted by her had not given her any prescription.
' It is in the evidence of Mst. Shahzadi that she and the deceased had taken meals before mid-day at the house of their Advocate at 1-00 p.m. Before they left for Shadan Lund. According to the prosecution the occurrence had taken place at 4-00 p.m. This version stands belied by the medical evidence because stomach of the deceased was found almost empty. According to the Investigating Officer the F.I.R. Was recorded at 4-30 p.m. The police station was at a distance of 8 miles from the spot. It is difficult to believe that the F.I.R. Could be lodged within 1 hour of the occurrence. These circumstances lend support to the argument of the learned defence counsel that the time of occurrence had been changed to show that the occurrence had taken place in the daylight. The other circumstance which makes the presence of Sajjad Hussain P.W. At the spot highly doubtful is that it was he who had abducted the sister of the appellants but he was not at all touched by them. There was nothing to prevent them from attacking him when he was present so near them. He was available to them even before the deceased had alighted from the bus. It is not understandable as to why he was spared. The number of injuries found on the person of the deceased also shows that it was an unwitnessed occurrence and the assailant had been giving injuries at will. This would not have been possible had the occurrence taken place in a thickly populated area having bazar, bank and other public places.
12. The recoveries are also assailed on the ground that no independent witness was examined to prove them. Stick P.5 allegedly recovered from Dost Muhammad appellant was not stained with blood. Ghulam Hassan P.W. 5 who was examined to prove the recoveries is closely related to the deceased being his cousin. The deceased's widow Mst. Wasai is his real sister. He was not a resident of that locality but lived at a distance of 8/9 miles from place of recovery. According to him Islamia Madrasa was at a distance of half a mile from the place of recovery where the pupils and teachers lived but none of them was associated in the recoveries. Ijaz, the other recovery witness was not examined by the prosecution. According to the S.I. Both the recovery witnesses had come to the police station just per chance from where he took them. The place of recovery is deserted place and was at a considerable distance from the house of the appellants. Furthermore, it was an open and accessable place and was not in the exclusive possession or occupation of the appellant.
There appears to be ample force in the argument advanced by the learned counsel for the appellant that motive being a double-edged weapon in the background of enmity between the parties cannot be treated as corroborative of the interested ocular testimony. Enmity is a weapon which cuts both ways. If the enmity between the accused and the deceased can be looked upon as motive for the crime, it can provide an equal justification for the false implication of the accused. In case of Wasi Ullah v. Mirza All and others, their Lordships of the Supreme Court observed that where the evidence of eye-witnesses consisted of enemies of the persons charged, it was proper to ask for exceptionally strong corroboration sufficient by itself to establish the guilt of the individual accused person beyond all reasonable doubt. The same view was re-affirmed by the Supreme Court in case of Thoba and another v. The State PLD 1964 SC 40. Independent corroboration of the interested testimony often stressed by the Courts cannot be looked for in the existence of motive alone for, in the cases of established enmity, motive is, but another name of enmity and it is the existence of this enmity, which disqualifies the ocular testimony from being accepted without independent corroboration.
13. Learned counsel for the State submits that it frequently happens that independent onlookers are not prepared to say in Court what they had seen to avoid the risk of animosity of assassin or his partisan. We are conscious of this growing tendency and general apathy in our society of the independent persons not coming forward to depose about the incident taking place within their sight but nevertheless the legal requirement of the corroboration of interested and inimical testimony cannot be dispensed with. It would be highly unsafe to act upon the testimony of interested persons i,e, enemies of the person charged in the absence of corroboratory evidence sufficient by itself to establish the guilt of individual accused, beyond all reasonable doubt.
14. In the circumstances discussed above, the ocular evidence is not of sufficient intrinsic quality to sustain the prosecution case.
15. In view of what is stated above, it is our considered opinion that the prosecution has failed to prove the case against the appellants beyond all reasonable doubt. Accordingly, we accept their appeal, set aside their conviction and sentence and acquit them of the charge.
' They shall be released, if not required in any other case.
' The death sentence of Allah Wasaya is not confirmed.