ANWARUL HAQ, C. J.-The three appellants, namely, Sami, his younger brother Lehru. And their cousin Jabbar, have been convicted under section 302 of the Pakistan Penal Code, read with section 34 of the same Code, by the learned Additional Sessions Judge, Sahiwal, for the murder of their co-villager Muhammad Rafiq alias Kulli, and sentenced to undergo transportation for life.
2. The incident is alleged to have taken place during the night between the 15th and 16th of July 1967 at Chah Churrian--wala comprised in village Qila Tara Singh in the jurisdiction of Police Station Depalpur. The matter was reported at the police station without delay at 3 a. m. By Shamir Ahmad (P. W. 6), the elder brother of the deceased. The appellant Sami and Jabbar were arrested the same day by Station House Officer Muhammad Aslam (P.W.12), whereas the appellant Lehru was apprehend the next day.
3. The appellants as well as the deceased who was an unmarried young man, were all residing at the Chah. The appellants suspected that the deceased had developed illicit relations with appellant Sami's wife Mst. Alsha. It is said that one day before the occurrence the appellants had complained of this to Shamir Khan and his uncle Chhotey Khan. On the night of the occurrence, which was hot and sultry, the accused, the deceased, as well as the witnesses were all sleeping on charpoys under the open sky, at a few feet from each other. Suddenly Mst. Kapuri (P. W. 7), mother of the deceased, saw the three appellants standing towards the head of the charpoy of the deceased. Lehru was carrying a hatchet whereas the remaining two were empty-handed. Mst.
Kapuri called out to her son Shamir Khan and his wife Mst. Rehmani (F. W. 8), but before these two parsons could act, Lehru gave a hatchet below at the neck of the deceased. On receiving the blow the deceased jumped up from the bed, fell on the ground and died. Thereafter the appellants escaped from the spot.
4. The autopsy of the dead body of Muhammad Rafiq, performed by Dr. Aftab Ahmad, Medical Officer, Depalpur, showed that the death was due to shock and haemorrhage caused by an incised wound 3 -- " x 1 -- " oblique on the font and right side of the neck extending on to the right side of the lower jaw. The same doctor found that the appellant Jabbar had three injuries on his person, namely, a contusion mark 1-- " x -- ' on the inner side of the left upper lip, a scratch 5` oblique on the outer and upper part of front of the left chest, with two incised wounds on the scratch, each bang skin deep, and a swelling on the lateral side of the lift ankle. The left central incisor tooth was shaky, with an abrasion I' in diameter on its outer surface and the left side of the upper lip was swollen. In the opinion of the doctor these injuries could be self-suffered and caused by a friendly hand.
5. The appellants Sami and Jabbar are said to have made extra-judicial confessions before Mal Khan (P. W. 9) and Sultan (P. W. 10). These two witnesses produced the appellants before the Investigating Officer who recovered a blood-stained shirt from the person of Lahbar. As already stated, the appellant Lehru was arrested on the 17th of July 1967 and he led to the recovery of a blood-stained hatchet in the presence of Lambardar Muhammad Attique (P. W. 11) and Chhotey Khan, who however did not appear at the trial. The origin of the blood found on the hatchet as well as the shirt could not be determined as the Chemical Examiner reported that the blood had disintegrated.
6. All the three appellants pleaded not guilty at the trial, but did not produce any evidence in defence. They asserted that they had been falsely implicated as they lived in the same Ihata where the murder took place. Jabbar explained his injuries by saying that he had been beaten by the police.
7. It will be seen that the case for the prosecution rests on:-
(a) the ocular testimony of Shamir Khan (P. W. 6), his mother Mst. Kapuri (P. W. 7) and his wife Mst.
Rehmani (P. W. 8);
(b) the extra judicial confessions made by the appellants Sami and Jabbar before Mal Khan (P. W.
9) and Sultan (P. W. 10);
(c) the recovery of the blood-stained hatchet at the instance of appellant Lehru; and
(d) the recovery of a blood-stained shirt from the person of the appellant Jabbar.
The learned trial Judge has not, however, placed reliance upon the recoveries and the extra- judicial confessions.
8. Before we deal with the ocular evidence it will be well to dispose of the evidence furnished by the extra-judicial confessions and the incriminating recoveries. As already stated, the learned trial Judge has not placed reliance on the extra---judicial confessions said to have been made by Sami and Jabbar before Mal Khan and Sultan. The learned Advocate appearing for the State has not contested this finding of the trial Court, and rightly so, as the confessions appear to have been jointly made by the two appellants without clearly specifying the part played by each of them.
9. As regards the recoveries, we find that in the first information report no mention was made about the hatchet. However, in his examination-in-chief at the trial Shamir Khan asserted that Lehru had taken away the hatchet with him, but he is contradicted on this point by his wife Mst. Rehmani who stated before the committing Magistrate that the hatchet was left at the spot when the assailants ran away. Mst. Kapuri got out of the difficulty by saying that she could not remember whether the hatchet was taken away or not. If the benefit of the state--ment made by Mst. Rehmani before the committing Magistrate is given to the accused, as it should be, then it would appear that the hatchet was thrown at the spot before the assailants escaped. If this was so, then no question arose of its recovery at the instance of Lehru who was arrested one day after the occurrence.
10. It has been seen that Jabbar had injuries on his person when he appeared before the investigating officer. One of the injuries was on the chest, and it is therefore possible that the blood found on his shirt was his own blood, and not that of the deceased. The origin of the blood not having been determined, benefit must again go to the accused in this matter. It appears therefore that the recovery of the blood-stained shift from the person of Jabbar cannot be used as incriminating evidence to) connect him with the crime.
11. We are thus left with the ocular evidence which ascribes the fatal blow to Lehru and asserts that Sami and Jabbar were present along with Lehru when he attacked the deceased. The question is whether this evidence has been rightly accepted by the learned trial Judge. There is no doubt that all the three witnesses are closely related utter se as "ell as to the deceased, but this relationship by itself cannot militate against their credibility. There is no indication on the record that there was any previous enmity between the parties or that the witnesses had any motive whatsoever to falsely implicate any of the appellants, They are natural witnesses of the occurrence, as they were admittedly sleeping in the same compound, There was some argument at the bar as to whether the night was moonlit or not, but this has no material bearing on the identification of the three appellants as they were obviously intimately known to the witnesses by virtue of their residence in the same locality, and would certainly' have been identified from close quarters even if there was no moon-light at the time. We consider therefore that no reason ha been made out on the record for not placing full reliance on the evidence of the three relations of the deceased.
12. It was however contended by the learned counsel for the appellants that the witnesses being interested, their evidence needed corroboration. In support of this proposition he referred us to Thoba and another v. The State (PLD 1963 SC 40) and Haji Ahmad and 2 others v. The State (1971 SCMR 326). We find that in the first --mentioned case the eye-witnesses were found to be interested and partisan, and for that reason it was observed that their evidence must be supported by some strong circumstance such as might serve to overcome the inherent doubt by which such evidence is necessarily affected. In the second case, his Lordship the Chief Justice, who delivered the judgment of the Court, observed that;- "In the present case, even though we accept the ocular testimony we think that out of abundant caution we should insist upon some corroboration of that testimony, particularly, since it comes from the mouths of very closely related witnesses, namely, brothers and mother. Since there is no corroboration in the case of Haji Ahmad we should give him the benefit of doubt."
13. The question as to who is an interested witness so as to require corroboration of his evidence was discussed by their Lordships of the Supreme Court in Nazir and others v. The State (PLD 1962 SC 169) and, it was held that an interested witness was one who had a motive for falsely implicating an accused person. Their Lordships further observed, explaining the dictum in Niaz v. The State (PLD 1960 SC 387) that they had no intention of laying down an inflexible rule that the statement of an interested witness could never be accepted without corroboration. They added that, however,' in order to be satisfied that no innocent person was being implicated along with the guilty, the Court would in the case of an ordinary interested witness look for some circumstance that gave sufficient support to his statement so as to create that degree of probability which could be made the basis of convic--tion, but for corroboration it was not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. So far as we are aware this view continues to prevail, even though it has been amplified and elaborated in subsequent cases. The two judgments relied upon by the learned counsel for the appellants do not constitute a departure from the rule enunciated in this case.
14. As regards relationship, it is well-settled that mere relationship with the deceased is not by itself sufficient to discredit a witness, unless it be shown that he has a motive to falsely o implicate any accused person, in which case he would have to be regarded as an interested witness requiring corroboration We may mention in this behalf Shihab Din v. The State (PLD 1964 SC 177), Muhammad Hussain v. The State (PLD 1969 Lah. 733), Azmat Khan v. The State (PLD 1969 Lah. 738), Muhammad Bakhsh v. The State (PLD 1969 Lah. 842), Mohd. Hussain v. The State (1969 SCMR 64), Muhammad Iqbal alias Bala v. The State (1970 1970P Cr.L J 111) and Muhammad Bashir alias Shikra v.
The State (1970 SC 114 R 351).
15. The remarks of his Lordship the Chief Justice, in the case of Haji Ahmad and 2 others, referred to earlier, must there--fore be regarded as being confined to the peculiar facts of that case, and not in the nature of enunciation of a new rule con--cerning witnesses who are related to the deceased but are other--wise natural witnesses and have no motive for false implication.
16. For the foregoing reasons we are of the view that the learned trial Judge was fully justified in placing reliance on the ocular evidence of the three witnesses available in this case, without requiring any corroboration. However, the final question remains, namely, whether this evidence establishes the presence of a common intention on the part of Sami and Jabbar who admittedly were empty-handed and did not inflict any injury on the deceased. It is true that the lady involved in the case is the wife of Sami, but he does not appear to have taken any active steps in the matter and it was left to his younger brother Lehru to inflict the fatal blow on the deceased. Their Lordships of the Privy Council observed in Mahboob Shah v. Emperor (AIR 1945 P C 118) that:- "Common intention within the meaning of section 34 implies a pre-arranged plan. To convict the accused of an offence applying section 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual, it has to be inferred from his act or conduct or other relevant circum--stances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides `their bounds' is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case."
Applying this test to the facts of the instant case we find that it will not be safe to burden Sami and Jabbar with the common intention of murdering the deceased. They were also sleeping in the same compound and it is possible that they woke up when Lehru intended to launch the fatal attack. The mere fact that they were seen standing near the charpoy of the deceased along with Lehru would not show, beyond reasonable doubt, that they were parties to a pre-arranged plan to murder the deceased. On this view of the matter we think that the conviction recorded against Sami and Jabbar by the application of section 34 of the Pakistan Penal Code cannot be sustained.
17. As a result, the appeal succeeds in so far as Sami and Jabbar are concerned. Their convictions and sentences are set aside and they are acquitted. They shall be released forthwith if not requires to be detained in any other connection. The appeal is, however, rejected in so far as it concerns Lehru appellant. His conviction and sentence are upheld.