1. SAJJAD AHMAD, J.-This is an appeal, by special leave, by Gul Muhammad, appellant, who, along with his co-accused, Ghulam Qadir and Ghulam Akbar, was found guilty by the learned Sessions Judge, Sahiwal at Mianwali, for the murder of Abdul Aziz, deceased. Ghulam Qadir was sentenced, to death and Gul Muhammad, appellant and Ghulam Akbar were both sentenced to transportation for life. All of them, in addition, were sentenced to pay a fine of Rs. 200, or, in default, to suffer 3 months' R.
1. On appeal and reference, the High Court acquitted Ghulam Akbar and maintained the conviction and sentence of Ghulam Qadir and Gul Muhammad. Both filed a petition for special leave to appeal in this Court. The petition of Ghulam Qadir was rejected but that of Gul Muhammad was accepted.
2. The occurrence took place early in the morning of the 11th of April 1966, when the deceased Abdul Aziz, in the company of his father, P. W. Amir Khan, and his uncle, P. W. Fateh Khan, was on his way to Railway Station, Piplan, to catch a train for Mianwali where he had to attend a case under section 307/34, P. P. C. Brought against him at the instance of the appellant (Gul Muhammad). Gul Muhammad had sought cancellation of the bail, which had been granted to Abdul Aziz in that case. According to the prosecution case, all the three accused emerged from a wheat field and wanted to attack the complainant party, which ran towards the railway station and took shelter in a room of the Assistant Station Master. The accused entered the room by breaking open the door.
3. Ghulam Akbar tried to stab the deceased, and both the appellant and Ghulam Qadir fired shots at the deceased with their pistols, killing him on the spot.
4. The ocular testimony in the case was furnished by Amir Khan, Fateh Khan, Ghulam Hassan and Muhammad Rafiq.
5. The present occurrence was a sequel to a long-standing enmity between the parties. The learned Judges in the High Court have totally discarded the evidence of Ghulam Hassan and Muhammad Rafiq, but believed that of Amir Khan and Fateh Khan, who were present at the time of occurrence.
6. However, even in regard to the evidence of Amir Khan and Fateh Khan, they found it unsafe to base the conviction upon that evidence without corroboration. In the case of Ghulam Qadir, the corro-- borative evidence was available, as according to the opinion of the Ballistics Expert, the empties recovered from the spot matched with the pistol, Exh. P. 8 which was produced by Ghulam Qadir. A chadar and shirt were also taken from his possession, which were found to be blood-stained.
7. Against Gul Muhammad, the learned Judges of the High Court found that the recovery of blood- stained clothes at his instance, furnished a tell-tale evidence of his participation in the crime.
8. Ghulam Akbar was acquitted as there was no item of corroborative evidence against him.
9. We were taken through the record of the case by the learned counsel for the appellant in support of his contention that no blood-stained clothes were recovered from Gul Muhammad, as mentioned in the judgment of the High Court. There is no recovery memo. Of these clothes nor have the three Investigation Officers, namely, Fazal-ur-Rahman, Muhammad Yaqub and Muhammad Khurshid, said anything of the recovery of these clothes from the person of the appellant. Obviously, the High Court has upheld the conviction of the appellant on misreading the evidence. As there is no corroborative evidence against the appellant, he is entitled to acquittal on the test as laid down in this case by the High Court for the appraisement of the evidence of interested witnesses.
10. The result is that we accept this appeal and set aside the con--viction and sentence of the appellant, who shall be released forthwith, if not wanted in any other case.