1. SALAHUDDIN AHMED, J.-This is an appeal by special leave of this Court from the judgment and order of a Division Bench of the Peshawar High Court dismissing the appeal of the appellants. The two appellants now stand convicted and sentenced under sections 302 read with 34 and 307 of the Pakistan Penal Code. The sentence of death passed on appellant Sher Bahadur was confirmed by the High Court, while the sentence of death passed on his younger brother, appellant Shamaraz Khan, was commuted to -transportation for life. The sentences on both the appellants for attempted murder were also maintained.
2. The appellants had been tried along with three other co-accused, namely, Jalil Khan, Jaryaz Khan and Bazad Khan, by vie learned Sessions Judge, Derajat Division, under sections 148/302/149 and 307/149 of the Pakistan Penal Code, and they were all convicted of all the charges, and while the two appellants were sentenced to death the rest were sentenced to transportation for life each for the murder of Gul Baz Khan. All the accused were also sentenced to various terms of imprison-- ment on other charges.
3. On appeal and reference under section 374 of the Code of Criminal Procedure, the High Court maintained the convictions of the appellants only, while it acquitted the rest. The Court also dismissed a revision petition for enhancement of the sentences passed on the convicts.
4. The prosecution case is that on the 30th April 1968, at 2-30 p.m., the deceased anti his sonP.W. 2 Badiuz Zaman were taking tea at their balakhana in 13aonu City when the appellants and the co- accused appeared on the roof of the adjacent shop of Muhammad Ayaz. The two appellants were each armed with a D. B. Shot-gun, while their companions were carrying S. B. Shot-guns. They fired towards Gul Baz Khan and his son P. W. Badiuz Zaman as a result of which both of them were injured. The appellants then descended the stairs and disappeared. The two injured persons were taken to the Civil Hospital, Bannu, and their statements were recorded by Assistant Sub-Inspector Riaz Hussain, who having learnt of the occurrence at the Bazar went to the Civil Hospital. Gul Baz Khan succumbed to his injuries on the same day at about 10 p.m., and the usual inquest report was prepared and his body was sent for post-morteen examination. Appellant Sher Bahadur was arrested on the 13th May 1968, while Shamaraz Khan was arrested on the 9th April 1969. The motive advanced by the prosecution for the crime against the two appellants was that the deceased had bought a shop and balakhana over it in which the occurrence took place, against the wishes of the appellants because Muhammad Ayaz, father of appellant Shamaraz owned the adjacent shop in which he was selling opium, and he wanted to buy the shop and the balakhana himself. A different motive was advanced so far as the three acquitted persons were concerned and this motive was mentioned both in the First Information Report and the dying statement of the deceased.
5. All the accused pleaded not guilty to the charges framed against them. With regard to his abscondence, appellant Sher Bahadur stated that he bad never absconded and that he was all the time present in his village and had also appeared thrice during the period in another murder case against him in the Court of E. A. C. No. II Bannu while he was on bail. He also pleaded alibi, and said that he had gone to Lakh on the day of occurrence at noon time to pay the remainder of the sale price to the then Assistant Commissioner, Lakki, Mr. Muhammad Zaman Khan (D. W. 1).
6. Appellant Shamaraz Khan, too, denied his abscondence and said that he had left his house for Karachi on account of his strained relations with his father about a year before the occurrence arid that he returned to Pannu earlier on the day on which he was arrested from a picture house.
7. It appears that the trial Court as well as the High Court relied on the solitary ocular evidence of P. W.
8. 2 Badiuz Zaman, and the dying statement of Gul Baz Khan deceased for convicting the appellants.
9. Mr. Manzoor Qadir, learned counsel appearing on behalf of the appellants, has contended that the learned Judges of the High Court were not justified in believing the discrepant evidence of P. W.
10. Badiuz Zaman, who was an interested witness. He has further contended that inasmuch as the statement of this witness, bad been partly disbelieved with regard to the three acquitted accused, his evidence should not have been implicitly relied on for the purpose of convicting the appellants without any reliable corroboration. The learned counsel ha; also contended that the dying statement appears to have beer prompted and it, too, came from an interested person and, therefore, required corroboration from an independent source Lastly, the learned counsel has contended that there was an indication of maneuvering by the prosecution inasmuch as the original statement of P. W. Badiaz Zaman made on the spot to a thanedar was suppressed.
11. Before we proceed to discuss the aforesaid contentions, vie should like to state here one noteworthy feature of the case. It is, indeed, curious that the motive attributed to the appellants at trial was never mentioned either in the First Information Report lodged by P. W. Badiuz Zeman or in the ding statement of the deceased Gul Baz Khan. The only motive which was mentioned in these two documents is one concerning the three acquitted accused persons only, and this motive, if true, indicated that the three acquitted persons did have strong reasons to commit the crimes. The motive was that the two brothers and a cousin of the three acquitted accused persons had been previously murdered by Gul Biz Khan deceased and his brother and their sons and for this murder the deceased and P. W. Badiuz Zaman and his two paternal uncles together with Sarfaraz were tried but Gul Baz Khan deceased and his brother Gul Nawaz were alone convicted and sentenced to transportation for life. The two convicts were, subsequently, acquitted by the Supreme Court.
12. Sometime after their acquittal, Bazad Khan (an acquitted accused) and others waylaid them and in that incident P. W. Badiuz Zaman, among others, was injured.
13. As regards the first two contentions of Mr. Manzoor Qadir, it may be stated that admittedly P. W. 2 Badiuz Zaman Is an interested witness being the son of Gul Baz Khan deceased. His evidence in so far as it implicated the three acquitted accused persons was not found acceptable by the trial Court as well as the High Court. In these circumstances, prudence required that his evidence should have been accepted only if it was corroborated by some other reliable evidence, and that the same yardstick that was applied to his evidence in regard to the three acquitted accused persons should also have been applied in the case of the two appellants. The evidence of P. W.
14. Badiuz Zaman obviously suffers from at least this improvement that he introduced a motive implicating the two appellants which he never did in his First Information Report. He also never mentioned anything about this motive in his supplementary statement (Ex h, D. A.; made an the 1st of May 1968. Furthermore, the witness stated at trial that he was sitting towards the tail of the cot white his father sat towards the head of the cot when the occurrence took place. In the committing Court, however, he appears to have said that be was sitting on a "murah" towards the tail of the said cot. P. W. 4 Sarfaraz also stated in his cross-examination that Badiuz Zaman was sitting on a murah close to the tail of the cot on which Gul Baz Khan was sitting and was facing the deceased.
15. This is a material inconsistency. We may state here that the precise reason given by the learned Judges of the High Court for relying on the evidence of P. W. Badiuz Zaman is more favourable to the appellants than to the prosecution. The reason given by the High Court is that neither P. W.
16. Badiuz Zaman, nor his father (deceased Gul Baz Khan) had any previous enmity with the two appellants nor did they have any motive to falsely implicate the appellants. If that be so, there was no motive for the appellants to participate in the murder of Gul Baz Khan deceased and in the murderous assault on P. W. Badiuz Zaman. As regards the belated allegation of a motive against the two appellants, besides what we have already raid in this respect, we may add that if Muhammad Ayaz was really anxious to purchase the shop and the balakhana why did he not participate in the auction by the Settlement authorities and bid for the property. How could Ayaz ever expect to get the property without attending the auction and bidding for the property.
17. As regards corroboration of the evidence of P. W. Badiuz Zaman, in the facts and circumstances of the case, the motive attributed to the appellants can by no means be regarded as a corroboration.
18. Similarly, abscondence cannot be regarded, at all, as a corroboration so far as appellant Shamaraz is concerned, for, admittedly he bad already been absconding in connection with a previous murder case. Appellant Sher Bahadur denied that he was absconding and stated that he had attended the Court of the E. A. C. No. 11, Bannu thrice during the period of the occurrence in connection with another murder case in which he was on bail. In the facts and circumstances' of the case his abscondence cannot be regarded as a good piece of corroboration.
19. As regards the dying statement of the deceased, it also suffers from the infirmity that the motive now attributed to the appellants was never mentioned therein. As a matter of fact reading the dying statement and the First Information Report one gets the impression that the real culprits were the three acquitted accused persons. The dying statement is undoubtedly the statement of an interested person, and in the facts and circumstances of the case it also required corroboration before it could be accepted. The evidence of P. W. Badiuz Zaman and the dying statement both having come from interested persons, one cannot be regarded as the corroboration of the other, for this would not be an independent corroboration. There is no independent corroboration available for the dying statement.
20. Furthermore, it appears from the evidence of P. W. A. S. I. Riaz Hussain that he recorded the dying statement of Gul Haz Khan in the Emergency Room where other people were present.
21. The witness did not remember whether they were the relations of the deceased. P. W. Badiuz Zaman, however, was present in that room and his charpoy was lying side by side with that of the deceased. The witness admitted that this was his first investigation and that was the reason why he did not take the precaution of ousting the people frosts the room before recording the dying statement. Although the witness has stated that P. W. Badiuz Zaman and the deceased did not interfere in the statement of each other, he does not say any such thing about the other people. All that can be said about the B dying statement is that it was not taken in conditions that totally excluded the possibility of any prompting on the part of any person.
22. 'As regards the last contention, P. W. Badruz Zaman cate--gorically stated in his evidence at trial that a thanedar came to the spot after the occurrence along with others and that the witness informed the thanedar about the occurrence. Although the witness denied that his statement was not recorded there on the spot, it appears that he told the committing Magistrate that when he narrated the incident to the thanedar on the spot, the latter was seen writing the same and the thumb-impression of the witness was taken on the spot. P. W. 3 Sakhi Zaman stated as follows; "It is correct that the police party had a thanedar among them when they came to the spot . . . . . . ."
23. This witness, however, denied having made the following statement before the committing Magistrate although it was so recorded: "My father and Badiuz Zaman, who were quite in senses narrated the incident to the thanedar which was recorded by him or that the thanedar took thumb-impression from them."
24. P. W. 4 Sarfaraz stated in his evidence at trial that many people then came to the spot including a thanedar and 2/3 constables to whom they informed of the occurrence. In his cross--- examination, P. W. Sarfaraz said : "When the thanedar came. I did not inform him of the occurrence. He was informed by Gut Baz Khan and Badiuz Zaman . . . . . The thanedar recorded a brief statement of Gul Baz Khan on the spot as well as that of Badiuz Zaman but I do not know if he obtained their thumb --impressions on their statements. In the Civil Hospital, Bannu, however, thanedar recorded the full statements of both of them."
25. All these facts legitimately give rise to a reasonable doubt that there was a previous statement made by P. W. Badiuz Zaman and or the deceased and this statement has been suppressed from Courts. The defence is thug entitled to ask the Court that an inference adverse to the prosecution should be drawn that if the statement had been produced it would not have supported the prosecution. We should like to observe here that although it is true that the evidence of P. Ws. 3 and 4 have not been relied on by both the trial Court and the High Court, there is no reason why any circumstance favourable to the defence appearing in their evidence should not be taken into consideration by the Court.
26. The appeal is allowed and the convictions and sentences of the two appellants are set aside and they are acquitted. We direct that they be set at liberty forthwith, if not wanted in connection with any other matter.