1. HAMOODUR RAHMAN, C. J--The five appellants in this case were tried in respect of charges under section 302/149 of the Pakistan Penal Code by the Additional Sessions Judge, Jacobabad, who, on the 29th of February 1970, convicted them and sentenced each of them to death, as also imposed a fine of Rs. 300 each, or, In default, rigorous imprisonment for one month. Three of the appellants, namely, Qalab A.I, Washlo and Ahmad A.I were further convicted under section 13(d) of the Arms Act and each of them was sentenced to two years' rigorous imprisonment on this count.
2. On appeal and reference, the High Court of Sind & Balu--chistan, on the 10th of June 1971, dismissed their appeal and confirmed their death sentences.
3. Leave was granted by this Court on the 16 of August 1971, to consider whether the ocular testimony of three eye-witnesses who were closely connected inter se as well as with the deceased persons, could be safely relied upon, In the absence of any corroborative evidence whatsoever and certain inherent improba--bilities in their evidence which had not been taken note of by the High Court.
4. The prosecution case was that at about morning-prayer time of the 16th of October 1967, the appellants variously armed with guns and hatchets attacked the deceased Ghulam Rasool and Jalal while they were ploughing the field in survey No. 59 of Dah Saleh, Taluka Garbi Khairo, within Dodapur Police Outpost, In the District of Jacobabad, and killed them.
5. The first information report with regard to this incident was lodged by Shah Murad (P. W. 3) at 11 a.m. Of the same day at Dodapur Police Outpost, three miles away. He claimed that he was ploughing his own field towards the west of his house at a distance of about 200 paces from the field towards the north, which was being ploughed by the deceased. All of a sudden, he heardth reports of gun fire from the west and went running in that direction. There he saw the appellants Ahmad All, Qaloo and Washlo armed with guns and the other two armed with hatchets. He claimed to have seen them shoot at the deceased. Both of them fell down and then the appellants armed with hatchets came up and gave hatchet blows to the deceased Ghulam Rasool. He also claimed that Hadi Bux and Iqbal, who were ploughing the field bearing petty survey No. 59, too came up and saw the Incident. The appellants threatened that, if they came near, they too would be killed. At this they stopped and the appellants ran away with their respective weapons. They found that both Jalal and Ghulam Rasool were dead and, therefore, they posted Shah Murad's father, Pir Khan, to watch over the corpses and, Shah Murad himself went to Dodapur Police Outpost to report the incident.
6. The deceased Ghulam Rasool was a son of his maternal uncle and the deceased Jalal was his paternal cousin. The other two witnesses were also closely related to the deceased Ghulam Rasool.
7. Hadi Bux was his paternal cousin and Iqbal was his own brother.
8. Although in the first information report it was clearly stated that "the accused had no revenge to take" yet, In his examina--petition-in chief, Shah Murad suggested that Ghulam Rasool had been murdered to avenge the killing of one Hakim A.I, a brother of the appellants Washlo and Qalab A.I, who was murdered 1 1/2 years before the present incident. For this murder Allah Rakhio, Raham All, Ghulam Haider and Jumo were challaned. Out of them Jumo alone was let off but the others were convicted. This Jumo, it was said was related to the deceased Ghulam Rasool but the exact relationship was not mentioned.
9. It was also suggested to him that no one bad seen the inci--dent as they had heard the gun report from their respective houses. When they carne out and reached the spot, the culprits bad already disappeared. They falsely implicated the appellants because of the previous enmity on account of the murder of Hashim, a brother of Jumo, for which Hakim A.I and Ghulam Murtaza were challaned.
10. Hakim All, as already stated, was the brother of the appellants Washlo and Qalab A.I, and Gbulam Murtaza is the brother of appellant Ghulam Nabi. In retaliation for this murder, Hakim A.I was murdered and Jumo was tried but was acquitted.
11. The witness Shah Murad, of course, denied these suggestions; but the defence managed to elicit some confirmation for their suggestions from Jeeand (P. W. 5). He was not an eye-witness of the occurrence but he was made a mashir by the police. He admitted, in cross-examination that he was a maternal cousin of Shah Murad (P. W. 3) and that the deceased Jalal was also his `'marot".
12. He also admitted that Kandero, who was convicted for the murder of Moula Bux Brohi, was related to Shah Murad. The latter was Kandero's Khaloo. He, however, contradicted Shah Murad regarding the place of residence of the other two witnesses, Hadi Bux and Iqbal. According to him, these two witnesses lived in another village, near Begari canal, and not in the village of Shah Murad, but they came for cultivating and ploughing their lands there.
13. On the basis of his evidence, the learned counsel for the appellants has contended that Iqbal and Hadi Bux (P. Ws. 7 and4) are not witnesses of the occurrence at all, because, neither Iqbal nor Hadi Bux possessed any lands near the place of the incident or lived in the village of Shah Murad.
14. So far as Hadi Bux (P. W. 4) is concerned, it is pointed out that though he tried to support the prosecution story in his examination-in-chief he could not in cross-examination give even the name of the person from whom he had purchased the lands, which he claimed to ploughing in this village. All that he could say was that the sale was oral some 15 or 16 years back and that the vendor was a katohar. He could not also give the survey cumbers of these fields. The lands were not mutated in his name and he on his own admission did not pay the land revenue. The Tapedar (P. W. 1) also confirmed that these two, were not Khatedars in Deh Saleh. The witness had to admit that Iqbal did not possess any land in Deh Saleh and that his own village was some 3 or 4 miles away from Deh Saleh, near Bagari Canal.
15. So far as Iqbal (P. W. 7) is concerned, he was, of course related both to Ghulam Rasool and Jalal; the deceased Ghulam Rasool was his brother and Jalal was his maternal uncle. He also admitted the previous murders of Hashim, a brother of Jumo, and Hakim All, a brother of Washlo and Qalab A.I, in retaliation for the murder of Hashim and also suggested that the murders now under consideration were committed, because, Jumo was let off after being tried for the murder of Hakim All.
16. His version with regard to the lands being ploughed by the deceased is also somewhat different, because, he claimed that the deceased were ploughing riot their own lands but lands of Shah.
17. Murad and that he and Hadi Bux were also ploughing the lands in the same number in which the deceased were ploughing. If this be so, then the version of Shah Murad and Had! Bux that they were at some distance would not be correct.
18. Learned counsel also relies strongly upon the evidence of the Head Constable Abdul Haque (P. W.
19. 6), who was the first Police Officer to arrive at the spot after recording the first information report lodged by Shah Murad, to show that none of the witnesses, who now claim to be eye-witnesses were present there when this Police Officer arrived.
20. The said Police Officer stated that he reached the wardat at about 12 noon but he did not record the statement of any witness at the wardat, because, "the witnesses were not available" and, therefore, he waited for the Sub-Inspector of Police to arrive. According to this witness, "Hadi Bux and Iqbal had not come there" while he was there. He is categorical that he "did not see Iqbal or Hadi Bux at the wardat" up to the time ha handed over the corpses to the constable for taking them to the morgue.
21. The Sub-Inspector of Police reached there at about 5 p.m and it was ho who examined the witnesses Hadi Bux and Iqbal, and according to his version, lqbal had stated more him "that after the incident they became busy in their work". This was the officer who arrested all the accused persons except Ahmad A.I on the 18 of October 1967. Ahmad A.I was arrested on the Bash A.I following day. But nothing incriminating was recovered from any one of them.
22. The Head Constable had, however, found 12 empty cartridges of 12-bore and 16-bore, at a distance of about 40 paces from the two dead bodies. Out of them, 10 were of 12-bore and 2 were of 16-bore (vide mashirnama-Exh. 10). But since no weapons were recovered from the accused these were not sent to the Ballistics Expert.
23. The case of the prosecution depended entirely upon the ocular testimony of Shah Murad, Hadi Bux and Iqbal without any independent corroboration. The High Court, nevertheless, found the evidence worthy of credence, because no direct enmity had been established between the witnesses and the appellants.
24. Learned counsel appearing In support of this appeal has however, contended that there was enough material on the record to establish that the witnesses were not only partisan but also inimical, as there was a history of several retaliatory murders. Indeed, although no motive was alleged in the first information report, the prosecution itself had introduced a motive through the oral testimony of the witnesses and each witness had maintained, that the deceased had been killed to avenge the acquittal of Jumo in the case relating to the murder of Hakim A.I who was himself murdered in retaliation for the murder of Hashim, a brother of Jumo.
25. The deliberate effort made by the prosecution witness Shah Murad to conceal his relationship with Kandero has also been, severely commented upon and the presence of the other eye-witnesses Hadi Bux and Iqbal has been seriously challenged. It is contended that their evidence should not be accepted at all. It would also be highly unsafe to convict upon the solitary evidence of Shah Murad.
26. The medical evidence, it is contended, also does not support the prosecution story. Similarly the recovery of as many as 12 empties from the place of the incident belies the prosecution version asth the Doctor found that only 5 gunshot injuries were caused to the deceased. As such it is difficult to reconcile them with the large number of empties recovered.
27. The medical evidence shows that there were in all 9 gunshot Injuries on the person of Ghulam Rasool and 2 gunshot injuries on the person of Jalal, deceased. The doctor opined that the 9 injuries on Ghulam Rasool could be caused by 3 gunshots and the injuries on Jalal by 2 gunshots, thus making a total of only 5 gunshots. Again, tine doctor was of the opinion that the gun-shot injuries on Ghulam Rasool had been caused by the "dis--charge of fire arms at a distance within one foot". Similarly the injuries on Jalal deceased, which showed charring round the edges, which were inverted, could not have been caused from a distance of 40 ft., as stated by the witnesses.
28. The incised wounds on the face and neck below the right pinna transversely and on the fifth cervical vertibrae on the back of the neck transversely, could, according to the learned counsel, hardly have been caused to the deceased after he had fallen down, as stated by the witnesses.
29. The High Court has unfortunately made no attempt to re--concile these apparent conflicts between the medical evidence and the oral testimony but we are of the opinion that, In the face of such glaring conflicts, the oral version of the witnesses could scarcely be relied upon, particularly since there were other con--tradictions too with regard to details between the testimonies of the witnesses inter se. We are also unable to agree that the witnesses were not inimical to the appellants. Having regard to their close relationship with the deceased and inter se and the-- previous retaliatory murders the witnesses could not be considered to be either disinterested or impartial.
30. The implication of as many as five persons closely related with each other two brothers and three cousins-for the murder of two unarmed persons with gun shots also suggests false implica-- petition of several innocent members of 'the enemy' family. Indeed the whole case bristles with inherent improbabilities and apparent contradictions which render implicit reliance on oral testimony alone practically impossible and extremely hazardous.
31. As has been pointed out by this Court In the case of Thoba v. The State (PLD1963SC40), the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a toto absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance, which would enable the Court to overcome the inherent doubt, which such evidence must necessarily create.
32. We regret to say that in the present case the High Court has not followed this salutary principle laid down for the safe dispen--sation of criminal justice. In this case not only were there no supporting circumstances to corroborate the ocular testimony of three witnesses, who were not only partisan but also inimical, but their evidence was also by no means of an unimpeachable char--acter. It suffered from so many inherent improbabilities and other serious infirmities, as pointed out earlier in this judgment that we consider it wholly unsafe to rely upon the same. th of February 1973.
33. The appellants should now be set at liberty forthwith, If not required in any other case.
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