' ASLAM RIAZ HUSSAIN, J.-This order shall dispose of Criminal P. S. L. A. No, 45-P of 1984 filed by Zulfiqar Ahmad against his conviction and Criminal P. S. L. A. No, 46-P of 1984, filed by the State against the acquittal of Haji Nisar Ahmad alias Pahar Baba and Manzoor Ahmad, (respondents in that petition).
2. Facts giving rise to the present case are briefly, that Zulfiqar Ahmad (petitioner in Criminal P. S. L.
A. No, 45-P of 1984) was accused, alongwith Haji Nisar and Manzoor Ahmad (respondents in Criminal P. No, 46-P of 1984) and their nephew Zia Ahmad, for murdering Fazal Nabi alias Gul Ji, at 11 a.m. On 22-12-1981, at the shop of Rahim Bakhsh in Bazar Kalan, Peshawar City.
3. The motive for the offence is stated to be an old blood feud between the parties.
4. The occurrence as narrated by the prosecution is that Fazal Nabi (deceased) and his brother Mustafa (complainant), were employed at the shop of Rahim Bakhsh Tandoorwala, in Bazar Kalan, Peshawar City. On 22-12-1984 at 11 a.m. When Mustafa (complainant) was busy near the oven and his brother Fazal Nabi alias GuiJi was sitting on the plank of the shop, Zulfiqar alias Zulfiqar Ahmad alongwith his two brothers Manzoor Ahmad and Nisar Ahmad and their nephew Zia Ahmad son of Mukhtar Ahmad, came there, duly armed. On the Lalkara of Nisar Ahmad to kill Fazal Nabi (deceased), Zulfiqar accused-petitioner fired a shut with a Tamancha, hitting Fazal Nabi who fell down. All the remaining accused then fired with their respective famancha and decamped from the place of occurrence. Some of them were arrested after a period of one month and others after two months, and were sent up for trial.
' Fazal Nabi was badly injured, but had not died. He was immediately removed to the Lady Reading Hospital. The police was informed and after sometime Mazahar Hussain A. S. I. Reached the Casualty Ward, where he recorded the statement of Mustafa P. W. Which was then sem. To the police station as murasla. An F. I. R. Under section 307, P. P. C. Was recorded on the basis of the said statement of Mustafa P. W. Fazal Nabi died the next day and the offence in the F. I. R. Was converted into one under section 302, P. P. C.
' One of the accused namely Zia Ahmad was, however, murdered by the opposite party during the pendency of the trial. Consequently, only the remaining three accused were tried.
5. In support of its case the prosecution produced two eye-witnesses namely Mustafa (P. W. 7)
(real brother of the deceased) and Salahuddin (P. W. 8) (an admitted partisan of the complainant party). No recovery, connecting the accused with the offence had been made. The only other evidence relied upon by the prosecution is the motive, i,e, blood feud between the parties, medical evidence. i.e that a single fire-arm injury was found on the person of the deceased and the evidence of abscondance of the accused.
6. The learned trial Court tide its judgment, dated 15-10-1985, convicted all of them and sentenced Zulfiqar petitioner to death and the remaining two accused were sentenced to imprisonment for life. All of them filed an appeal before the High Court which by its judgment, dated 13-6-1984, acquitted Haji Nisar Ahmad and Manzoor Ahmad co-accused, but maintained the conviction of Zulfiqar. It also confirmed the ientence of death awarded to him. Hence the present petition, one by the convict-accused against his conviction and the other by the State against the acquittal of the two acquitted accused.
7. We have heard the learned counsel for the petitioners. He has referred to the following observation of the High Court in paragraph 14 of its judgment :- "In this case it can hardly be disputed that both the belligerent parties are after the blood of each other, Mustafa P. W. 7 is a highly interested witness being the brother of the deceased and an accused of the murder of Zia Ahmad deceased-accused Salahuddin is partisan and in a way a chance witness ; that the ocular evidence as to the killing of Fazal Nabi supported by the medical evidence is that the deceased had only one injury on his person, a bullet having been recovered from the wound which had charring. There is, however, dispute as to the role given to each of the three accused by the prosecution and about the ascendance of all the accused after the occurrence."
' He pointed out further that in paragraphs 15 and 16 of its judgment, the High Court has made the following observations, with regard to the credibility of 2 eye-witnesses :- ,.(15) .At the trial, however, though both Mustafa and Salahuddin P. Ws. Are consistent in attributing Lalkaras to Nisar Ahmed and a fatal shot to Zultiqar but they have made a marked departure as to firing by the other three accused in that, at the trial both of the witnesses deposed that the three accused fired a shot each in the air............................................................................................................................................................. "
"(16) The change in the version at the trial was obviously necessitated because had the three accused also fired at the deceased who were within 4 to 7 feet from the deceased he would have definitely received more injuries on his person or for the matter of that Mustafa P. W. Who was then at a distance of 8 to 10 feet from the three accused would have also been hit but it is not so. .. . . .
Had he been fired at by the three accused also then some of the spent bullets would have found their places either on the walls of the shop or must have let some sort of marks on the walls of the shop. Since the alleged firing by the three appellants did not leave any mark on the person of the deceased or his brother or anywhere on the walls of the shop, the prosecution twisted the matter and firing in the air was introduced at the trial.................."
' Referring to paragraph 17 of the impugned judgment, the learned counsel pointed out that the learned High Court had disbelieved the evidence regarding the alleged ascendance of the three accused persons. Relevant portion of this para. Reads as under :- "(17) . This shows that the three accused did not flout the law and the arguments of the learned Additional Advocate-General that the three accused had, absconded after the occurrence which showed their guilty conscious falls to the ground."
8. Counsel then adverted our attention to the following observations by the High Court :- `,(18) .It seems to be an act of one man and as the parties are locked in blood feud, therefore, the complainant has widened the net to enrope as many people as possible from the side of the accused. We, therefore, discard the evidence of the two so-called eye-witnesses as for Nisar Ahmad and Manzoor are concerned and by so holding the application of section 34, P. P. C. Also fails."
' The learned counsel emphasized that the use by the High Court of the word "so-called eye- witnesses" is very significant because it reveals the true state of mind of the learned High Court as regards their credibility.
9. The counsel then argued that from the fact that only one injury was found on the dead-body, it is evident that only one person had shot at the deceased. But the question is, who was that person ?
' The learned High Court has itself observed that the parties are "after each other's blood" and that the complainant party has, therefore, tempted to involve as many as persons as possible from the accused party (three of whom are brothers inter se, and the fourth Zia Ahmad was their nephew).
' The learned counsel argued that since nobody was prepared to become an eye-witness in a case of murder between two parties involved in a blood feud Mustafa and Salahuddin, P. Ws. Who had not actually seen the occurrence set themselves up as eye-witnesses and in view of their admitted connection with the deceased, their testimony should be looked upon with suspicion. The learned High Court has itself expressed serious doubt as to their being present at the spot by calling them "so-called eye-witnesses". Moreover, the High Court has also disbelieved their testimony with regard to the majority of the accused persons.
' The counsel pointed out that in a large number of cases it has been held by the superior Courts that credibility of the witnesses is not divisible and if the eye-witnesses are disbelieved with regard to the majority of the accused, it should not be believed with regard to the remaining accused unless independent corroborative evidence qua those accused is available on the record.
10. Of course, there are cases where the testimony of even a singl witness has been relied upon for conviction of the accused but in each case it depends on various, factors e.g., where the presence of the witness at the time of occurrence is natural; his statement is consistent, the version o incident given by him is natural ; his character is above suspicion ; he has stood the test of cross- examination and his testimony is unimpeachable. The Courts have, however, emphasized, over and over again, the necessity of observance of well-established rule of caution that where the testimony of an eye-witness has been disbelieved with regard to some of the accused, B it can be used against the remaining accused only when some independent corroboratory evidence is available on the record to support their testimony qua those accused.
' The counsel submitted that in view of the deep rooted hostility between the parties as also in view of the doubt regarding the so-called eye-witnesses expressed by the High. Court itself, the observance of this rule of caution was all the more necessary. But as already noticed above no corroboratory evidence supporting the testimony of the two so-called eye-witnesses, against Zulfiqar Ahmad petitioner, is available on the record. The evidence of abscondance has been disbelieved by the learned High Court itself. The evidence of motive is equally applicable to each of the accused and it cannot, therefore, be said that it corroborates the testimony of the eyewitnesses with regard to Zulfiqar Ahmad. As for the medical evidence i,e, the fact that only one injury was found on the person of the deceased, this is of no value because the F. I. R. Was got recorded after the deceased had been removed to the hospital and got medically examined, by Mustafa complainant. Since he came to know that only one injury was found on the body of the deceased, he naturally mentioned that only one fire was effective and the remaining shots fired by other accused did not hit anyone. In any case, the presence of injury did not by itself show that it had been caused by Zulfiqar petitioner.
11. As for the question as to why did the complainant chose Zulfiqar Ahmad as the person who fired the shot, the counsel argued that the fact Zia Ahmad was murdered by the complainant party soon after this incident shows that the case has been so tailored as to ensure that an important member of the family of the opposite party should be got hanged through the legal process by attributing the main role of firing the fatal shot, while they intended to deal with Zia Ahmad, the actual murderer, whenever an opportunity presented itself.
12. We feel that there is considerable force in the aforementioned contentions. We, therefore, grant leave to consider whether the well-established principles of appreciation of evidence in criminal cases has been observed in this case.
13. As for Criminal P. S. L. A. No, 46-P of 1984, filed by the State against the acquittal of Haji Nisar Ahmad and Manzoor Ahmad, we feel that since leave has been granted to consider the case of Zulfiqar Ahmad, leave should also be granted in this case. Leave is, therefore, granted in this case to consider whether the two respondents were wrongly acquitted by the High Court. Bailable warrants in the sum of Rs, 20,000 with two sureties in each case, shall issue against them to the satisfaction of District Magistrate, Peshawar.