Muhammad Ali Sayeed, J.--Appellants Gul son of Sabjal, Ramzan son of Khuda Bux, Abdullah son of Murad, Saeed Khan son of Muhabat and Muhammad Sharif son of Sohbat were tried by the learned Sessions Judge, Sukkur, for the murder of Kako son of Dur Muhammad and convicted under sections 302/ 149 and 148, P. P. C. Each of the appellents was sentenced to transportation for life under section 302/149, P. P. C. and two years' R. I. under section 148, P. P. C. The appellants have appealed against the said judgment of conviction and sentence.
2. The incident in question occurred on the 24th of February 1969 at about sun-rise time near the watercourse known as Mirza Wah in the land of Pir Bux situated in taluka Shikarpur District, Sukkur.
Deceased Kako, it is alleged, had set out on the morning of the fateful day on his journey to Shikarpur for attending the Court of the Resident Magistrate, Shikarpur in connection with a case filed against him by some of the appellants. He had hardly travelled a short distance from his house when prosecution witnesses Manwath Kamber and Abdur Rehman as well as one Kandho (the last of whom has not been examined), heard cries from deceased Kako. They ran in the direction from which the cries came and witnessed the appellants delivering hatchet blows to Kako. Before they could reach to his side the appellants had fallen Kako and ran away carrying the crime weapons with them. Kako immediately succumbed to his injuries. Leaving the other eye- witnesses with the dead body of Kako, P. W. Kanwath proceeded to Rustam Police Station which was at a distance of 21 miles from the wardat to lodge the F. I. R. The F. I. R. (Exh. 6) was recorded by the S. H. O. Imam Bux (P. W. 7). He proceeded immediately to the scene of the crime reaching there within half an hour and found the dead body of Kako lying near the Mirza Wah in a pool of blood. He secured the blood-stained earth from the spot under mashimama Exh. 10 and prepared the inquest report. After sending the dead body to the Medical Officer, Shikarpur for post-mortem examination he examined P. Ws. Kamber, Abdur Rehman and Kandho. The appellants were not available in their villages. Thereafter on the 6th March 1969 he arrested the appellants. Appellant Gul conducted the S. H. O. and mashirs Ghulam Rasool Khan and Muhammad Hussain to a cluster of date trees at a distance of about 30 or 40 paces from the wardat and brought out a blood- stained hatchet from inside the cluster. The hatchet in question was seized by him and secured under mashimama Exh.
12. The hatchet along with the blood-stained earth secured from the scene of occurrence was later sent to the Chemical Analyser for examination and report. On the same day the Investigating Officer secured hatchets from each of the other appellant, namely. Saeed Khan, Abdullah, Sharif and Ramzan. But none of these hatchets was found to be stained with blood, nor does it appear that any mashimama in respect of the seizure was prepared. The investi gation being complete the appellants were sent tip to stand their trial.
3. The evidence of the Medical Officer, Dr. Abdul Kadir (Exh. 21), discloses that deceased Kako had 5 injuries on his person which could have been caused by a sharp cutting weapon such as a hatchet. Injury No. 1 which was an incise wound f/xl' extending from the medial part of the left eye- brow towards the top of the skull causing fracture of the middle frontal bone was individually sufficient to cause death in the ordinary course of nature. He has also opined that the other injuries were collectively sufficient to cause death. When ques tioned in cross-examination the doctor was further of the opinion that the death of the deceased could have taken place at any time after 2-00 a. m. the same morning.
4. In their statements under section 342, Cr. P. C. the appellants have denied being connected in any way with the murder of Kako, and they attribute their implication to enmity with the prosecution witnesses. They have filed a few documents in the Court to suggest that there were, prior to the incident, cases and cross between the deceased and some of the appellants. Appellant Gul has further denied having produced any blood stained hatchet.
5. The evidence against the appellants consists of the ocular testimony of Kanwath (P- W. 1) who is the first informant in the case, Kamber [P. W. 2) and Abdur Rehman (P. W. 3). The only piece of corroboration available is against appellant Gul, who produced the blood-stained hatchet from the cluster of date trees.
6. We shall first deal with the evidence of Kanwath (P. W. 1). He claims to be a cousin of deceased Kako and describes P. Ws. Abdur Rehman, Kamber and also Kandho as his caste-fellows. It may, however, be mentioned that the evidence of these witnesses shows that they were also related to deceased Kako. At the time of the incident P. W. Kanwath whose house was at a distance of one furlong from the wardat was standing near his house when he heard Kako raising cries of murder.
Re went running in that direction. P. Ws. Kamber, Abdur Rehman and Kandho also came running thence. P. W. Kanwath saw all the 5 appellants running after deceased Kako and giving him hatchet Mows. Kako fell down to the blows and the appellants ran awav to the west after completion of their mission. Bv the time the prosecution witnesses reached Kalto's side he had breathed his last. Leaving Abdur Rehman, Kandho and Kamber at the wardat P. W. Kanwath went to lodge the report at the Rustam Police Station. This witness learnt later on from P W Abdur Rehman that deceased Kako was on his wav to attend the hearing of the criminal case filed bv appellant Ramzan a oaf net him at Shikarpur. This was a case under section 307/34, P. P. C. in which appellant Ramzan had alleged that TCako had given blows to him.
7. The evidence of the other two eye-witnesses namely Kamber and Abdur Rehman is more or less in the same terms as that of Kanwath. Tn relation to appellant Gul the testimony of the eye- witnesses is corroborated by the fact that on 6th of March 1966, be conducted the Police Party and mashir, Wadero Ghulam Rasool (P. W. 4) to a cluster of date trees near about the wardat and produced from it a hatchet which appeared to be stained with blood. The recovery of the hatchet is deposed to by the S. H. O. Imam Bux (P. W. 7) and supported by P. W. 4 Ghulam Rasool, the latter of whom acted as a mashir. The mashtmama in respect of the recovery is Exh.
12. The hatchet as stated earlier was sealed and sent to the Chemical Analyser for ex amination. According to the Chemical Analyser's report (Exh. 17) the hatchet was found to be stained with human blood. Although testimony of a corroborative nature was totally lacking as against the other appellants the learned Sessions Judge proceeded to convict all the appellants and perusal of the judgment would indicate that in doing so the learned Sessions Judge was chiefly influenced by the existence of a strong motive. The motive in brief was the enmity between the deceased and the accused party as evidenced by the counter- cases between them.
8. In so far as the case against appellant Gul is concerned we have no doubt in our mind with regard to his guilt since the ocular testimony against him finds powerful corroboration in the production by appellant Gul of a blood-stained hatchet. This evidence is supported by the testimony of Ghulam Rasool (P. W. 4) who acted as a mashir in the case. He is also a Jatoi by caste and owns 500 jareebs of land. He is a member of the Union Council at Panwar. His evidence in Court has not been shaken in cross-examination, and we have no reason to look at it with any suspicion. We have, therefore, no doubt in our mind, with regard to the guilt of appellant Gul. His appeal, therefore, stands dismissed.
9. We have given our anxious consideration to the cases against appellants Ramzan, Abdullah, Saeed Khan and Muhammad Sharif. As observed earlier the main feature which influenced the learned Sessions Judge in holding against them was the existence of motive as evidenced by the history of counter-cases between deceased Kako and the accused party.
10. Motive may no doubt provide a judicially acceptable corroboration of the ocular and other testimony but where the alleged motive tends to be co-extensive with enmity, it seems to us that the Courts will have to be more circumspect before accepting it as sufficient corroboration particularly so when other types of corroboration, are lacking. It has rightly been observed that enmity is a weapon which may cut both ways. Tf the enmity between the accused and the deceased can fairly be looked upon as motive for the crime it can, we suppose, provide an equal justification to the relations of the deceased for false implication of the accused. In the case of Wasiullah v. Mirza All and others (1) their Lordships of the Supreme Court stated that where the evidence of eye-witnesses consisted of enemies of the per sons charged, it was proper to ask that the evidence in corrobora tion should be exceptionally strong and almost if not quite, sufficient by itself to establish the guilt of individual accused persons beyond reasonable doubt. The same view was re-affirmed by the Supreme Court in the case of Thoba and another v. State (2) in which their Lordships were of the view that where the ocular evidence was of interested and partisan witnesses such ocular evidence, to carry a conviction on capital charge, must be supported by some strong circumstances such as might serve to overcome the inherent doubt by which such evidence is necessarily affected. "The above view was followed by a Division Bench of our own Court in Khurshid Ahmad v. Maqbool Ahmad (3). The same proposition was
(1) PL D 1963 SC 25 (2) PLD 1963 SC 40
(3) PLD 1964 Kar. 356 restated by the Supreme Court in HazratuUah and another v. The State (1) when they observed that it was unsafe to base a convic tion of an accused person on a capital charge only on testimony of highly interested witnesses uncorroborated by independent evidence. The accent on corroboration, it would seem, is in relation to independent evidence. The same view was taken by a Division Bench of the High Court at Lahore in GhuIam feelmi v. State (2).
11. We do not wish to be understood as laying down a rule that the evidence of an interested witness must necessarily be rejected. But where the interest of the witness is referrable to evidence of positive enmity the immutable rule of prudence has always been that the testimony of such a witness should not be accepted without independent corroboration. Such an indepen dent corroboration cannot be looked for in the existence of motive alone. For, in cases of established enmity, motive is but another name for enmity and it is the existence of this very enmity which has disqualified the ocular testimony from being accepted without independent corroboration. It seems quite obvious to us that acceptance of enmity as providing corroboration of inimical witnesses tantamounts to defeating the very object which the rule of corroboration is designed to achieve.
12. Considering now the evidence of the three eye-witnesses as against the appellants other than Gul we would like to observe that the documents produced by the accused persons themselves, their statements made under section 342, Cr. P. C. and the admissions of the prosecution witnesses in their own depositions point to the existence of inveterate enmity between the deceased and the appellants. The eye-witnesses are all close relations of the deceased. The appellants had filed 107 proceedings against deceased Kako and also a case under section 307/34, P. P. C. The deceased himself had filed a case under section 364, P. P. C. against some of the appellants. On the day when deceased Kako was killed he was actually going to attend to a case under section 307/34, P. P. C. in which he was an accused person and the evidence of Nazir Ahmad (P. W. 8) a clerk of the Resident Magistrate, Sltikarpur, shows that on that particular day the case was fixed for hearing and the deceased was marked absent. We do not see how in the circumstances it became necessary for Ramzan and the other appellants to kill the deceased since the deceased was an accused person in a criminal trial facing a possibility of being convicted. The conduct of the appellants should have been more understandable if the deceased was the complainant in a case against the appellants or a material witness against them. This aspect has been referred to by us only in an attempt to demon strate that even the theory of motive does not stand the test of a rational approach.
13. In the view that we are inclined to take of the existence of proof of enmity between the deceased and the accused party, the close relationship between the deceased and the eye-witnesses,
(2) 1970 P Cr. L J 1619 and the total lack of corroborative evidence, we think it would be unsafe to sustain the conviction of appellants Ramzan, Abdullah, Saeed Khan and Muhammad Sharif.
14. In the result, we would dismiss the appeal of appellant Gul son of Sabjal and maintain his conviction and sentence. The remaining appellants, that is, Ramzan, Abdullah, Saeed Khan and Muhammad Sharif, are given the benefit of doubt. Their appeals are allowed and they stand acquitted. They may be released forthwith, if not required in any other case. .