1. SALAHUDDIN AHMED, J.-There are two appeals before us: Criminal Appeal No. 83 of 1970 is by Salehon, and it is ass of right. The appellant had been acquitted by the learned Additional Sessions Judge Lyallpur. The State filed an appeal from the order of acquittal and a Bench of two Judges of the Lahore High Court heard it. As the Judges were equally divided ' in their opinion about the guilt of this appellant, the matter was referred to a third Judge who found the appellant guilty and convicted and sentenced him to transportation for life under section 302/34 of the Pakistan Penal Code.
2. Criminal Appeal No. 59 of 1971 is by Muhammad, Bashir and Ashraf, the three sons of appellant Salehon. They were convicted and sentenced by the learned Additional Sessions Judge, Lyallpur under section 302 read with 34 of the Pakistan Penal Code and sentenced to death. Their convictions were maintained and their sentences of death confirmed by the High Court. Leave was granted to these three appellants in view of the fact that the appeal of the co-convict Salehon was already before this Court under consideration.
3. The occurrence took place on the 15th October 1966, at 7 a.m. Appellant Salehon and Haibat Khan deceased are real brothers. Manzoor deceased son of Haji Haibat deceased had married Mst.
4. Jannat Bibi, daughter of appellant Salebon. The three daughters of deceased Haji Haibat Khan deceased, namely, Mst. Fateh Bibi deceased, Mst. Amino Bibi deceased and Mst. Saheb Bibi deceased had been married to appellants Muhammad, Bashir and Ashraf, respectively.
5. The prosecution case is that the said Mst. Jannat Bibi was issueless and therefore, Manzoor deceased wanted to remarry. This offended Mst. Jannat Bibi and she came over to live with her parents. As a result of this the three daughters of Haibat Khan deceased also left their husband's house and came to live with their father. This happened 7/8 months prior to the present occurrence. The house of both the parties are adjacent to each other. Two days prior to the unfortunate occurrence, which took toll of six lives, there was a Panchayat for the, purpose of effecting a reconciliation between the parties. Appellant Salehon appeared to have agreed to send back his daughter Mst. Jannat Bibi to Manzoor deceased provided some land was transferred to her, but this was not accepted by Haibat Khan deceased. The Panchayat accordingly adjourned to re-assemble for another effort to compose the differences. On the date of occurrence at 7 a.m. Mst.
6. Khan Bibi deceased, wife of Haibat Khan deceased, was going out to their fields, carrying a basket of Swank grass on her head. She was preceded by her son Manzoor Ahmad deceased. When they proceeded to some distance from their house all the four appellants along with their four other relatives, namely, Umra and Yousuf (both are sons-in-law of Salehon appellant), and Mansha and Noor (both are nephews of Salehon), appeared from the side of a flour mill. Appellants Muhammad and Ashraf, were armed with a D. B. Gun and a S. B. Gun, respectively whlle the rest of the accused were armed with hatchets. Appellant Muhammad shouted a lalkara at Manzoor deceased and then fired at him. The latter crossed the nearby watercourse but ho was fired again twice once by appellant Muhammad and a second time by appellant Ashraf. The victim fell down and his mother Mst. Khan Bibi deceased threw her basket and having crossed the watercourse, proceeded towards her son and she was fired upon by appellant Muhammad. She too fell down and the other six accused persons who were armed with hatchets, crossed the watercourse and struck the two victims with their hatchets.
7. All the eight accused then proceeded towards the house of Haji Haibat Khan deceased. On their way however, they came -across Mst. Saheb Bibi deceased wife of appellant Ashraf. Appellant Ashraf shot at her and injured her and she fell down on the ground. Appellant Muhammad also fired at her. It is alleged that the four acquitted accused persons also struck Mst. Saheb Bibi with their hatchets. All the eight accused then went into the house of Haji Haibat Khan deceased where Mst. Fateh Bibi wife of appellant Muhammad was churning curd, Mst. Amina Bibi, wife of appellant Bashir, was sitting in front of the eastern room and Haji Haibat Khan and P. W. 17, Yaqoob were sitting on a cot. The inmates of the house got up on seeing the accused. Appellant Muhammad fired two shots at his wife Mst. Fateh Bibi. Appellant Ashraf fired a shot at Haji Haibat Khan. Mst.
8. Amina Bibi raised an alarm and appellants Muhammad and Ashraf fired one shot each at her.
9. Thereafter the victims in Haji Haibat Khan's house were struck with hatchets by appellants Bashir and Salehon and also by Umra, Mansha, Noor and Yousuf. According to the prosecution the occurrence was witnessed by P. W. 15, Muhammad Moosa Khan, P. W. 16 Isa son of Bagga, P. W. 17, Yaqoob, P. W. 18, Muhammad son of Ghulam Muhammad and a witness who was given up by the prosecution, namely, Muhammad son of Kathan. P. W. Muhammad Moosa lodged a First Information Report on the same day at 9-30 a.m. At the Police Station, eight miles off from the place of occurrence, and the Investigating Officer arrived at the spot at 10-30 a.m. He recovered blood-stained earth from each one of the six spots where the dead bodies were found lying.
10. Several crime empties were also recovered from several spots in the place of occurrence. All the four appellants were arrested on the 16th October 1966, and certain recoveries were made on 17- 10-1966 at the instance of appellants Salehon, Muhammad and Bashir. A blood-stained chaddar and a double barrel gun were recovered at the instance of appellant Muhammad, a blood-- stained hatchet and a shirt, a chaddar and a pair of shoes, all blood-stained, were recovered at the instance of appellant Bashir. A blood-stained hatchet was recovered at the instance of appellant Salehon. On the 19th October 1966, appellant Ashraf pro--duced three pieces of blood- stained clothes and a single-barrel gun.
11. Post-mortem examination on all the dead bodies were held on the 16th October 1966, by Dr. Habibur Rehman Medical Officer, Jaranwala. As Dr. Habibur Rehman died in a car accident before the preliminary enquiry had started, the post--mortem reports were exhibited and the writings and the signatures on the reports were proved by Dr. Iftikhar Ahmad Piracha, Assistant Medical Officer, Jaranwala (P. W. 9). The prosecution also relied on an extra judicial confession made by appellant Muhammad Khan.
12. The trial Judge acquitted four of the accused persons, namely, Umra, Noor, Mansha and Yousuf on the ground that they had been falsely implicated. He also gave benefit of doubt to appel--lant Salehon and acquitted him for want of corroboration of ocular evidence. The three sons of appellant Salehon namely, appellants Muhammad, Ashraf and Bashir were, however, con--victed and sentenced to death under section 302 of the Pakistan Penal Code on six counts of murder.
13. The State filed an appeal before the High Court from the order of acquittal of appellant Salehon and the other four persons, namely, Umra, Noor, Mansha and Yousuf. The three convicted persons also preferred an appeal before the High Court from their convictions and sentences. A Division Bench of the Lahore High Court dismissed the appeals of the aforesaid three convicts, namely, appellants Muhammad, Ashraf and Bashir, and main--tained their convictions and confirmed their sentences of death. The Division Bench dismissed the State's appeal against Umra, Noor, Mansha and Yousuf. The Bench, however, was equally divided on the question of the guilt of appellant Salehon and his case was accordingly referred to- a third Judge. The learned third Judge found Salehon guilty and convicted and sentenced him to transportation for life under section 302 read with section 34 of the Pakistan Penal Code on all the six counts of murder.
14. The appellants totally denied the occurrence and stated that they were falsely implicated on account of enmity. They relied on the admission of some of the witnesses for prosecution, who said that the wives of appellants Muhammad and Ashraf had illicit relationship with Yousuf and Gulla.
15. The appellants relied upon the report of the Chemical Examiner in support of this admission.
16. As regards the three sons of appellant Salehon namely, Muhammad Ashraf and Bashir, the trial Court relied on the two eye-witnesses, namely, P. W. 15 and P. W. 16 as well as on the evidence of recovery of certain articles at their instance. In addi--petition, the trial Court relied on the extra judicial confession of appellant 'Muhammad as proved by Muhammad Sher (P. W. 8) Lambardar.
17. So far as the place of occurrence and the murder of the afore--said six persons are concerned, they are not disputed. The recovery of blood-stained earth from the several places where according to the prosecution the victims were attacked and killed, fully establishes the place of occurrence. The recovery of crime empties as well as the basket and Swank grass which Khan Bibi was carrying at the time also fix the place of occurrence. P. Ws. 15 anti 16 are equally related to both parties and there appears no reason for them to falsely implicate appellants Muhammad, Bashir and Ashraf. Their evidence against these three appellants have been relied upon by the trial Court as well as the High Court. It is true that these two witnesses also impli--cated the four acquitted persons, namely, Umra, Yousaf, Noor Ahmad and Mansha, but their evidence so far as these three appellants are concerned, have received ample corroboration by the medical evidence as well as the evidence of recoveries. The medical evidence shows that Manzoor deceased had 17 injuries including eight incised and the rest gunshot injuries. Mst. Khan Bibi deceased had three incised injuries and two gunshot injuries. Mst. Sahib Bibi deceased had seven incised and four gunshot injuries. Mst. Amina Bibi had three incised and six gunshot injuries: Mst. Fateh Bibi had three incised and three gunshot injuries. Haji Haibat Khan had two incised and three gunshot injuries. As regards appellants Ashraf and Bashir, blood-stained articles of wear which were found to contain human blood afforded good corroboration to the evidence of the said two eye--witnesses. The recovery of a blood-stained hatchet from Bashir was also found to be stained with human blood and the recovery of a single-barrel gun from appellant Ashraf from which, accord--ing to the Arms Expert, one of the crime empties had been fired, also lend strong corroboration to the ocular evidence implicating appellants Ashraf and Bashir. The corroborative evidence in respect of appellant Muhammad is the extra judicial confession which has been relied on by the trial Court as well as the High Court. P. W. 8, Muhammad Sher Lambardar who has proved the extra-judicial confession, has no animus against appellant Muhammad and had no motive to oblige the police. He also did not appear to have any interest in the deceased persons. The recovery of a blood-stained chaddar has not been relied on by the Judges of the High Court for the reason that on account of the disintegration of the blood its origin could not be determined. Similarly the double-barrel gun said to have been produced by the appellant was not relied on because there was no evidence that any crime empty recovered from the places of occurrence matched the gun. The failure on the part of the prosecution to avail of these evidence of recovery does not affect its case against appellant Muhammad. The ocular evidence as corroborated by his extra judicial confession is enough to sustain the conviction of appellant Muhammad. The presence of motive further supports the prosecution case against Muhammad, Bashir and Ashraf.
18. It may be borne in mind here that although the trial Court had held that the four acquitted accused persons were falsely implicated by the witnesses, the learned Judges of the High Court disagreed with this finding, and said that the said four accused persons could only be given the benefit of doubt on the ground that the cases against them were not proved beyond any reasonable doubt. The reasons that weighed with the learned Judges of the High Court, so far as this point is concerned, were that there was no motive on the part of these acquitted persons to participate in the occurrence. They lived separately and they were not dependent upon the family of Salehon and had no enmity with Haji Haibat Khan and his family. Furthermore, that no recoveries were made from them and that some of the prosecution witnesses had admit--ted that these accused persons had pleaded alibi, and in support of it produced evidence before the police. We accordingly hold that the High Court was right in maintaining the conviction and sentences passed upon appellants Muhammad, Ashraf and Bashir.
19. We now proceed to consider the case of appellant Salehon which stands by itself. He is a fairly elderly person, his age having been given as 70 years in the committing Court and 90 years in the Sessions Court. He is the real brother of Haji Haibat Khan deceased. Another deceased Manzoor was his own son---in-law. The three deceased females, namely, Mst. Saheb Bibi, Mst. Amina Bibi and Mst. Fateh Bibi deceased were his own daughters-in-law. The trial Court in acquitting him relied on the ground that he could not have any Motive to kill all the six persons who were closely related to him including his own brother, nephew and son-in-law and daughters-in-law. Further-- more that the origin of the said blood on the hatchet recovered at his instance could not be fixed as the blood had disintegrated. The trial Court also considered it curious that although Salehon was alleged to have taken part in giving hatchet blows to no less than three persons, namely, Manzoor, Mst. Fateh Bibi and Haji Haibat Khan, there is no evidence of any blood having been seen on his clothes or any blood-stained clothes recovered from him although in the cases of some of the other appellants, namely, Muhammad, Ashraf and Bashir blood-stained garments were in fact recovered. P. W. 20, Raja Qurban A.I, Investigating Officer admitted that Salehon had stated that he had been reading the Holy Quran when he came to know about the occurrence. This fact is also taken into consideration by the trial Court.
20. The Division Bench of the High Court was equally divided as 0 the guilt of appellant Salehon. While one of the Judges held that P. Ws. 15 and 16 were natural witnesses and there was no motive on their part to falsely implicate Salehon, and, there--fore, it was not necessary to require any corroboration of their evidence. The evidence of these two witnesses were accordingly relied on by him without any corroboration although it was observed that nevertheless the corroboration was furnished in the shapa of community of motive on the part of Salehon and the recovery of the blood-stained hatchet at his instance. The other learned Judge, however, fully agreed with the appraisal of evidence as made by the trial Court. He observed that there was no community of motive and that the defence was not obliged to adduce any evidence in regard to Salehon's plea of alibi and there could be no adverse presumption from the non-production of such evidence.
21. The learned third Judge however, agreed with the opinion of the learned Judge of the Division Bench who held Salehon guilty. It appears, however, that the learned third Judge based the conviction of Salehon solely upon the ocular evidence of P. Ws. 15 and 16, Muhammad Moosa and Isa respectively. The learned Judge has observed as follows:- "I consider that on the basis of the ocular evidence of Muhammad Moosa and Isa, Salehon should be convicted."
22. Subsequently, however, the learned Judge proceeded to observe as follows :- "However, even if as a rule of precaution and safety one were to look for corroboration, it is to be found in the several circumstances proved on the record against the respondent . . . .
23. The learned Judge has then proceeded to repeat the reasons given by one of the Judges of the Division Bench, namely, the community of motive including the allegations of immorality of the three daughters-in-law of Salehon as suggested on behalf of the defence. The learned Judge has also taken into consideration that Salehon's house being next door to that of Haji Haibat Khan intervened by a wall 5' high, Salehon could not have been unaware of what was happening in and around the house of Haji Haibat Khan. Finally the learned Judge also relied upon the recovery of a blood-stained hatchet at the instance of Salehon. So far as this recovery is concerned, it may be mentioned that it was rejected by the trial Court as well as the two Judges of the Division Bench. As regards the community of motive it appears that the learned third Judge took pains to discover a motive for Salehon to commit crime. In our opinion the facts and circum--stances weighed more heavily in favour of the improbability on the part of Salehon to have committed the murders of his very near relations. The only material piece of evidence upon which corroboration was founded was the recovery of a blood-stained hatchet at the instance of Salehon. Inasmuch as, however, the trial Court as well as both the Judges of the Division Bench did not feel it safe to rely upon such evidence and it being an appeal from an order of acquittal, the learned third Judge should not have relied upon this piece of evidence for the purpose of corroborating the two eye-witnesses. If the recovery evidence is therefore, removed from consideration, only the ocular evidence of P. Ws.
24. 15 and 16 remains against Salehon. We have already observed that in view of the fact that both the witnesses had named four persons who had been found not guilty and acquitted, consistent with the principles of safe administration of justice it was necessary that there should have been reliable corrobora--petition of their evidence before it should have been accepted. We accordingly hold that applying the said principles it is not safe to maintain the conviction of appellant Salehon.
25. The appeals of Muhammad, Bashir and Ashraf are, however, dismissed.