1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of the High Court of Sind & Baluchistan, Karachi maintaining the conviction of the appellants under section 302 read with section 34 of the Pakistan Penal Code and the sentences of death passed on them thereunder. The High Court also main--tained the conviction of two of the appellants, namely, Saindad and Piran Jurio under section 13-D of the Arms Act.
2. Leave has been granted to consider the question whether the evidence of the two eye-witnesses, Miral and Udhal, who are interested persons, should have been accepted without any satisfactory corroboration of their evidence and particularly in the presence of the medical evidence which is inconsistent with the account of the occurrence as given by the eye-witnesses.
3. According to the prosecution the occurrence took place on the 26th January 1968, at Kachri Manjan, i.e. Early noon, on an uncultivated land, about a furlong from the residence of the deceased, while Dadan deceased, accompanied by P. W. 3, Mira] and P. W. 4, Udhal, was proceeding to attend a fair called Misri Shah. The deceased was on horse's back and he was being followed by the said two witnesses. Appellants Saindad and Piran Jurio were armed with guns while the appellant Ghulam Rasul was armed with a hatchet.. They had laid in ambush and suddenly fired gun at the deceased with the result that he fell down after the horse had taken him to some distance. All the three appellants then ran to the deceased, and appellant Ghulam Rasul gave two hatchet blows to the deceased. A first information report was lodged at Police. Station Shahdad Kot, seven miles off by Miral the same day at 3-30 p.m.
4. It appears from the evidence of one of the two eye-witnesses, namely, P. W. 4, Udhal that the deceased had taken breakfast before they left for the fair. The witness is corroborated by P. W. 8 who said that they left the house after breakfast. The other eye-witness P. W. 9, however, staled that although he and P. W. Udhal had taken breakfast before leaving for Shahdad Kot, he did not know whether deceased Dadan had taken the breakfast. The medical evidence has disclosed that the large intestine of the deceased was full of faucal matter and that the deceased had taken his last meal about 10 or 12 hours before the death. It further stated that for complete digestion of the food in the stomach about 6 hours' time was, required. The medical evidence further shows that there were five incised wounds on the body of the deceased caused by some sharp-cutting weapon such as a hatchet.
5. The, guns and the hatchets alleged to have been used by the assailants were not recovered with the result that some-empties seized from the place of occurrence were not of any assistance so far as corroboration of the ocular evidence in regard to tile identity of the assailant is concerned.
6. The prosecution case rested solely on the evidence of the two eye-witnesses, P. W. 3, Miral and P.
7. W.. 4, Udhal. The former is a cousin and the latter is another cousin of Dadan deceased. Their evidence have been sought to be corroborated by P. W. 6, Bachal, a nephew of the deceased and P. W. 8, Abdur Rehman, a cousin of the deceased. P. W. Bachal was not mentioned in the first information report: It is thus evident that the witnesses are' interested and it wits advisable, in the facts and circumstances of the case, to find some corroboration of their evidence before they should hake been accepted. Far from corroborating their evidence, however, the medical evidence mentioned above is contrary to their evidence. The absence of any food in the stomach is clearly inconsistent with the prosecution case that the occurrence took place at early noon while the deceased was proceeding to the fair, after having taken his breakfast. P. W. 6, Bachal, gave the time of occurrence as 8 a.m. Similarly the medical evidence which says that there were five incised wounds on the body of the deceas--ed caused by some sharp-cutting weapon such as hatchet, is inconsistent with the evidence of the two eye-witnesses that only two hatchet blows were given to the deceased by appellant Ghulam Rasul. In our opinion the learned Judges of the High Court were swa yed more by speculations than actual evidence in brushing aside the medical evidence. These inconsistencies are enough to hold that the prosecution failed to prove its case against the appellants beyond any reasonable doubt.
8. There are, however, other unsatisfactory features of the case. The occurrence having taken place in the open and in broad daylight, it is indeed curious that no independent witness was produced to support the prosecution case. P. W. Miral who lodged the First Information Report stated in the report as well as in his evidence before the Court of Sessions that he resided in village Bhambho Khan Chandio. He, however, tried to pass off as a natural witness and said that he and deceased Dadan and P. W. Udhal resided in the same village in which accused Saindad and Piran Jurio resided, namely, village Tando Misri. P. W. Miral has stated in the First Information Report that he visited Tando Misri to enquire from Dadan deceased about the cultivation of his land in Deh Mena and Deh Koor Kari in Taluka Shalidad Kot, but in his evidence the witness stated that he, P: W. Udhal and the deceased left "our village" for Shahdad Kot in order to see the fair of Misri Shah. All these make it doubtful ' whether P. W. Miral was indeed a natural witness as he claimed to be. Again both P. Ws.. Miral and Udhal have stated that they observed marks of blood on the horse and the saddle.
9. Assistant Sub-Inspector Abdul Fahim (P. W. 7), however, stated that he did not notice such marks of blood. No such blood was seized.
10. Having regard to the facts and circumstances mentioned above we think that principles consistent with safe administration case. Upon the evidence the appellants were entitled to the benefit of doubt and we give them this benefit. The appeal is accordingly allowed, the conviction and sentences passed upon the appellants are set aside and they are directed to be set at liberty forthwith, if not wanted in connection with any other matter.