1. SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from an order of a Division Bench of the Peshawar High Court, setting aside the convictions and sentences of the appellants (respondents Nos. 1-3 herein) passed under section 302 of the Pakistan Penal Code (two counts) and under section 307 of the Code (three counts).
2. Originally seven persons, including the three respondents were tried by the Additional Sessions Judge, Peshawar, under sections 148, 302/ 149 (two counts) for committing the murder of Jehanzeb and Farid and under section 307/ 149 for attempting on the lives of Sarfraz and P. Ws. Muzammal and Alamzeb ; under section 436, P. P. C. For burning the kotha of Sher Afzal P. W. And under section 404 of the Code for removing the licensed gun and bandolier of Jehanzeb deceased after he had been killed.
3. The complainant and his party belonged to the Muslim League while the respondents and their men belonged to the Red Shirt Organization. The relations of the two parties had not been cordial since 1930. 9 months 2 years before the occur--rence, Abdul Rehman, a brother of Sarfraz and cousin of P. W. Alamzeb and Jehanzeb deceased had been murdered and respondents Naqeebullah and his son Shamsur Rehman, and respondents Hamidullah (since dead) and his son Ahmedullah were tried for the murder but acquitted. Both the parties, however, were bound down in security proceedings.
4. On 20th May 1968, about 8 a.m., P. W. Alamzeb and his cousin Sarfraz accompanied by Jehanzeb deceased, who was armed with a Double Barrel shot gun and a bandolier, were proceeding to Cham Dheri in order to see their fields. P. W. Muzarnmil and Farid deceased, who were also proceeding towards their fields, joined them on the way. When the party arrived at the path adjacent to the kotha of P. W. Sher Afzal, the respondents and their companions, variously armed with fire-arm, suddenly emerged from the door of the kotha, and attacked the complainant party.
5. Tahirur Rehman and Ahmadullah tired one shot each from their firearms and hit and injured Jehanzeb deceased who fell down at the spot. Hamidullah (deceased) and Inayatullah each fired at and hit Farid deceased.. Farid ran for shelter towards the nearby kotha of Faiz Talab. The kotha had a burj (tower). These two assailants also fired at and injured P. W. Muzammil, and the last named took shelter in the nearby lakhiai (water course). P. W. Alamzeb and Sarfraz took shelter in the tobacco barn of Saifoor.
6. The accused persons took away Jehanzeb deceased's gun and bandolier and then dragged his dead body to P. W. Sher Afzal's kotha and set fire to the kotha. They all then ran after Farid to the kotha of Faiz Talab and there was firing in the tower of the kotha. Farid was subsequently found lying dead in the said tower. The accused fired from their firearms indiscriminately to keep away the people who had started collecting. The Police arrived after about 1 --to 2 hours.
7. The Statement of P. W. Alamzeb was recorded by P. W. 17, Azimullah Khan, Assistant Sub-Inspector on the spot at 11 a.m. And on the basis of the statement a case was registered at Shahbazgarh Police Station, five miles away, at 3 p.m. The same day.
8. It may be stated here that none of the live clime empties was found by the Arms Expert to have been tired from the said rifle.
9. Four accused persons, viz. Ahmadullah, Hamidullah, Naqib--ullah and Shamsur Rehman were arrested on 20-5-1968 and Tahirur Rehman, Qiraytullah and Inayatullah were arrested on July 22, 1968.
10. The post-mortem examination on the two dead bodies were held on the same day and it revealed the following injuries :- On Jehanzeb "(1) An inlet wound on the sternum, lower part, 3/4' x 1/4" x 3/4" x 1" underlying sternum fractured and the chest and abdomen had second degree burns. The wound was directed backward. All the scalp was burnt. Skull bone and right clavicle, were burnt. Both the hands were burnt and missing.
11. Right lower limb below .The mid-thigh was burnt and absent. Only small pieces of the back of chest and abdomen were healthy. Second degree burn of the rest of the body was present. , The cause of death was injury to heart, second to third degree burns of body, shock and haemorrhage."
12. On Farid "(1) Thirty-six wounds of entrance on the front of chest in the middle lower part and epigas trum each 1/5' x 1/5' x 3/4". There was no charring present.
(2) Fifteen-inlet wounds on the front of left arm each 1/5" x 1/5" x 3/4". There was no charring present.
(3) An inlet wound on the front of forehead 1/2" x 1/4" x 1" directed backwards. There was no charring present.
(4) An exit wound on the whole of both parietal regions and upper part of occipital region 3" x 3" x 4". Brain matter was completely washed away and the skull bone was fractured."
13. The same day P. W. 1, Dr. Sharif Gul Khan found on P. W. Muzammil a simple injury on the back of the calf muscle of the right leg caused by fire-arm.
14. The same doctor found Hidayatullah, an accused, injured with firearm. There was an inlet wound with ragged margin in the upper flank 6" to the right of the median plank round about the costal margin area of the size 3" x 3". There were charring marks around the wound.
15. Hidayatullah died on 22-5-1968 at 10-40 a.m. The post--mortem examination disclosed "7th rib on the right side at the maximum canvexity was fractured. The right costophrenic angle of the right pleurae was injured and the right pleural cavity contained blood.
16. Abdomen.-The upper right flank area of the abdomen was injured 1/2" and the rest 2 --"comes, in the chest. The peri--toneum was injured in the upper right area. The momentum was injured. The diaphragm was injured in the upper right angle. The stomach was intact only little fluid was present. The small intestines were intact. Some bleeding areas were present in the mesentery. The large intestines was intact, and contained little faucal matter. The right lobe of the liver on its top was injured up to the depth of 3". The length of the wound on the liver was 6" x 3' deep.
17. The cause of death was due to severe injury to the liver with haemorrhage and shock. The nature of the weapon used was fire-arm. The pellet removed on operation were sealed into bottles and handed over to F. C. 823."
18. The accused persons pleaded not guilty to the charges framed against them and said that they were falsely implicated out of enmity. Tahirur Rehman and Inayatullah denied that they absconded and said that they had gone to the Cattle fair and when they heard about the occurrence they surrendered in Court.
19. It appears that one of the accused persons, namely, Hidayatullah had also been injured with a fire- arm on the date of occurrence, as the result of which he died a day or two after the occurrence.
20. Hidayatullah himself had registered a case and some of the witnesses in the present case were accused in the cross-case.
21. The prosecution case rests on the evidence of four eye--witnesses namely, Alamzeb (P. W. 12), Muzammil (P. W. 13), Haleemzada (P. W. 14) and Sher Afzal (P. W. 15).
22. P. W. Alamzeb is brother of Jehanzeb deceased and is a accused in the cross-case. P. W.
23. Haleemzada is his collateral. Sarfraz, companion of Alamzeb on the date of occurrence, is brother of Abdur Rehman who had been murdered previously for which some of the accused persons had been , tried and acquitted. The learned Judges of the High Court rejected the reason that P. W.
24. Alamzeb gave for going to his field, namely ; in order to see whether the tenants looked after the land properly or not. Although the witness had arms in his possession, he said he was proceeding to his field unarmed. This again the learned Judges of the High Court found improbable having regard to the admitted enmity between the parties. The witness was materially contradicted by his statement before the committing Magistrate. Although at trial lie denied that P. W. Muzammil and Farid deceased were his party men, in the committing Court he admitted that they were their party men.
25. P. W. Haleemzada, and his brother Faiz Talab in whose tower Farid deceased had taken refuge in course of the occurrence are accused in the cross-case. The witness was also a prosecu--petition witness in the murder case of Abdur Rehman. His uncle married the paternal aunt of Sarfraz, brother of the said Abdur Rehman.
26. Both these witnesses, therefore, are not only connected with the complainant but also inimically disposed towards the accused party on account of the murder of Abdur Rehman.
27. Brother of P. W. Muzammil is a gardener in the service of the said Sarfraz, P. W. Muzammil is also an accused in the cross-case. He has no land but worked as a labourer. He did not tell the Police or the committing Court that he was proceed--ing to his field. He was injured at the occurrence. It is, however, difficult to say why he should have been injured if he had no enmity with the accused.
28. P. W. Sher Afzal does not appear to be a disinterested witness. The accused party had a civil suit against Sarfraz, maternal uncle of P. W. Sher Afzal in which P. W. Sher Afzal was a party. One Aslam is cousin of the said Sarfraz and the accused was involved in a civil litigation with Aslam. The witness stated that he saw the accused including Hidayatullah, since dead, firing at his kotha. If Jehanzeb deceased had been killed on the path, there was no point in firing at the kotha of P. W.
29. Sher Afzal. The medical evidence is that Jehanzeb died of his injuries instant--aneously. It is thus evident that neither P. W. Muzammil nor P. W. Sher Afzal can be regarded as an absolutely disinterested person.
30. It is the prosecution case that a large number of persons had collected at the place of occurrence and they were kept at bay by the accused persons' firing at them indiscriminately. The failure on the part of the prosecution to produce a single disinterested witness is a point that goes against the prosecution. In the' absence, therefore, of any corroboration of the evidence of the said eye- witnesses, it was not safe to place implicit reliance on their evidence.
31. It is important to note that the trial Court did not rely on the evidence of these witnesses so far as four out of seven accused persons are concerned. The said four accused persons are Naqeebullah, Qiratullah, Hamidullah and Shamsur Rehman. They were acquitted by the trial Court and the learned Judges of the High Court dismissed the revisional application preferred against their acquittal. This Court also did not grant leave to appeal against them.
32. Apart from the credibility of the witnesses the prosecution case suffers from certain inherent improbabilities and material defects.
33. To begin with the motive, as alleged by the prosecution, far from supporting the prosecution case, tends to support the defence case, that the complainant party was in fact the aggressor. It appears that P. W. Sher Afzal along with the said Aslam and some others, were bound down under section 107 of the Code of Criminal Procedure for three years at the instance of the accused party.
34. The witness admitted this before the committing Court. If this be true, it was unlikely that the accused persons could consider the kotha of P. W. Sher Afzal as a safe place for lying in ambush for attacking the complainant party. Besides there is no evidence to show that the accused party had known before hand that the complainant party were likely to pass that way at that time.
35. Furthermore, if eight persons fully armed with fire-arms lay in ambush and attacked the complainant party unaware and suddenly for the motive alleged, it was curious that Sarfraz and P.
36. W. Alamzeb, brother and cousin, respectively, of the murdered Abdur Rehman, escaped injury.
37. One of the accused, namely, Hidayatullah, was killed as a result of the injury sustained on the date of occurrence. None of the prosecution witnesses says how Hidayatullah was killed. This shows that the witnesses were not telling the entire truth before the Court.
38. Another curious thing that is noticed by us is that Farid deceased has been shown by the prosecution to be absolutely unconnected. The medical evidence shows that Farid had received 36 wounds of entrance on the front of chest, 15 inlet wounds on the front of left arm and an inlet wound on the front of fore-head, and an exit wound covering the entire parietal regions. According to the prosecution evidence Farid had been shot at and presumably received some injury on the path and then he fled to the said tower of Faiz Talab. Subsequently after Jehanzeb's body had been taken to the kotha of P. W. Sher Afzal and the kotha set on fire, all the accused persons ran after Farid deceased to the tower and attacked and injured him there. The number and nature of wounds sustained by Farid as well as the accused party going in pursuit of him indicated that Farid was not so unconnected as alleged by-the prosecution, and this receives support from the fact that in his evidence before the committing Court P. W. Alamzeb stated that Muzammil and Farid were their party men and started with them from the village to their field in Chain Dheri.
39. There is another matter which the prosecution has failed to explain. If Jehanzeb had been killed on the path, what was the necessity of putting the kotha of Sher Afzal to fire.
40. One on the most glaring facts that stares in the face of the prosecution is that the Investigating Officer did not recover any blood at all from the path where Jehanzeb deceased was fired at and killed and Farid deceased was first fired at. On the contrary the evidence is that blood was recovered from two places only, namely, from the courtyard of the kotha of P. W. Sher Afzal and from the steps leading to the tower of Faiz Talab and from inside the tower. There were also marks of bullets inside the tower.