ATAULLAH SAJJAD, J.-This judgment will dispose of Criminal Appeal No. 847 of 1970 and Murder Reference No. 89 of 1971.
2. The appellants in this case are four in number. Bahadur and Ghulam Ali are brothers inter se while Shera and Saee are father and son respectively. Shera is the paternal uncle of Bahadur and Ghulam Ali. All of them have been convicted under section 302/34, P. P. C. For causing the death of Sher Muhammad. Bahadur and Saee have been sentenced to death and other two to transportation for life. The appellants were tried along with Bahadur son of Sajawal, Akbar and Aslam sons of Sardara who are brothers inter se. These three co-accused of the appellants were acquitted by the learned Sessions Judge.
3. The occurrence took place on 14th of September 1967, at about nimazwela in village Nain, Police Station Kuthala Sheikhan, Tehsil Phalia in the District of Gujrat. The first information report was lodged by Salehoon Muhammad (P. W. 7) and was recorded by Sub-Inspector Mahmood Ahmad (P. W. 11) at 7 a.m. The distance between the place of occurrence and the police station is eight miles.
4. The evidence is that on the morning of 14 of September 1967 at about nimazwela, the accused came to the joint behak of Shera deceased, the brother of Salehoon Muhammad (P. W. 7). Bahadur and Saee appellants were armed with guns while the others were armed with lathis. Shera deceased was asleep on his cot when Bahadur appellant fired a shot from his gun hitting the deceased on the right side of his chest. Saee appellant then fired from his gun with the result that the deceased was hit on his belly. The other accused raised lalkaras exhorting their companions to finish the deceased. Thereafter, the accused ran away carrying their respective weapons.th
5. On the night of occurrence, Salehoon Muhammad (P. W. 7) his son Saee alias Anwar (P. W. 8) and Hayat (P.W.10), a first-cousin of the deceased, slept, at the behak. At about nimazwela, Salehoon Muhammad P. W. Went to a nearby sugarcane field to urinate. Hayat who has direct enmity with the appellants is said to have been changing the places where he used to sleep at night. He had his own dera, but on that particular night he slept at the behak of Salehoon Muhammad, but left at sehriwela for his own dera. Saee alias Anwar P. W. Was asleep at the dera and saw the occurrence The occurrence was also seen by Saee son of Muhammad (P. W. 9) who was going on a horse- back to village Bosal for purchasing a buffalo. Hayat (P. W. 10) a cousin of the deceased came back from his dera after learning about the occurrence. Leaving the dead body in the charge of Hayat, the first informant proceeded to the police station.
6. The Sub-Inspector on reaching the spot sent the dead body for post-mortem examination. He collected the blood-stained earth from the spot and also found an empty of a 12 bore gun and four pellets from the spot. Bahadur appellant after his arrest got recovered from his bajra field gun Exh.
P. 4 on 25th of September 1967. The only witness of the recovery produced at the trial is Mahmood Ahmad (P. W. 11), the investigating Officer. The gun and the empty were sent to the Ballistics Expert but the result received was in the negative.
7. The medical evidence shows that there is a gunshot wound of entrance --" x 1' on the right side of the chest. The shots had entered the body en masse and passed through the lower part of upper lobe of right lung destroying the heart and damaging the lower lobe of left lung. There were nine wounds of exit as against this injury. There was another wound of entrance on the left side of the abdomen, as a result of which 7th rib was fractured on the back. There was also a contusion mark with the shape of word 'C' on the left side of the face just outer to the left angle of the face. The death occurred due to the injuries Nos. 1 and 2 which had resulted in the destruction of the heart and extensive injuries to lung, liver and stomach. These injuries were found to be sufficient to cause death individually in the ordinary course of nature. Injury No. 3 was the result of a blunt weapon.
8. There is a background of enmity between the parties. Five or six years before the occurrence, Malka a brother's son of Shera appellant and a cousin of the other three appellants was murdered.
In that case, apart from Hayat (P. W. 10), Nazra son of Sada and Shana and Maria sons of Murad Ali were prosecuted. About three years before the above incident Malka deceased along with Bahadur and Shera appellants had given a beating to Khana a son of Murad . Murad is the uncle of Nazra who is the sister's husband of Hayat (P. W. 10). The trial of bitterness appears to have continued and we find from the evidence of Salehoon Muhammad P. W. That a few months before the present occurrence Shera deceased, Salehoon Muhammad (P. W. 7), Hayat (P. W. 10) and his brother Mathela were bound down for keeping peace as against Bahadur, Shera, Saee and Ghulam Ali appellants.
9. The learned Sessions Judge in the process of analysing the evidence took note of the fact that according to the medical opinion the stomach of the deceased was empty and there was faecal matter present in the small and large intestines. He, therefore, came to the conclusion that the time of the occurrence, as alleged by the prosecution, was correct. He further observed that there were about twenty-five heads of cattle including a mare, a horse and a she-donkey, and the deceased could not be left to sleep alone at the behak, especially, in view of the estranged relations of the complainant party with the accused. He observed that it was natural that these two witnesses would get more persons to sleep at the behak, in order to liquidate "any design of theft or attack by enemies."
As to Saee (P. W. 9) he observed that he was an indepen--dent witness and had no direct enmity with the accused. The promptitude with which the F. I. R. Was lodged also impressed the learned Sessions Judge to a very great extent. Referring to the question raised by the defence that the evidence was interested in this case, the learned. Sessions Judge held Saee v an independent witness. In this connection he referred to Nazir and others v. State (PLD 1962 SC 269) wherein it was observed at it is not an inflexible rule that the statement of an interested that cannot be accepted without corroboration. The learned witness trial judge, commenting on the evidence of two interested witnesses, further observed as follows :- No doubt Salehoon P. W. 7 has enmity with 13ahadur accused son of Jahana, Ghulam Ali alias Gulla, Shera and Saes accused but that does not mean that he has perjured himself to rope in altogether innocent persons as he is the natural witness of the behak. Same is the case with his son Saes alias Anwar P. W. 8, who is only aged about 19 years and is still at the threshold of his life."
10. We must observe that the learned Sessions Judge has not properly appreciated the dictum of their Lordships of the Supreme Court in so far as requirement of corroboration of interested testi-- mony is concerned. The observation relied upon by the learned Sessions Judge finds place in the last para of page 274 of the report but it is further amplified in the lines that follow it. Their Lordships said:--- "There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, to far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will, in the case of an ordinary interested witness, look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction."
The reasons given by the learned Sessions judge for departing from the salutary rule requiring corroboration of inimical testimony in respect of Salehoon and his son Saee alias Anwar may indicate his faith in the goodness of human nature but is not in consonance with the rue of prudence firmly laid down by the superior Courts of the country for safe dispensation of justice.
What is factual foundation for the observation of the learned trial Judge that Salehoon will not go to the extent of involving innocent persons and his son Save alias Anwar will not perjure himself because-of his youth? These are mere conjectures and con--jectures however well-intentioned cannot take the place of legal evidence. In the ordinary cases, the rule of prudence requires that there should be corroboration of interested testimony. It can be said that Sate (P. W. 9) provides corroboration of the testimony of the interested witnesses. After going through the evidence of Sae we find that he is not as reliable as the learned Sessions Judge thought him to be. Questions were put to him to show that he was related to the complainant party but he denied these suggestions.
He said that he did not know the name of the sister of his father. He ultimately admitted that his sister was married to one Qadra and his brother Fatta was married to the sister of Hayat (P. W. 10).
He resides at a distance of two and a half squares from the place of occurrence but said that he was proceeding to village Bosal in order to purchase a buffalo. He admitted that he was convicted in a theft case. We get an impression that his refusal to tell the name of the sister of his father was a crude attempt to conceal his relationship with the complainant party. He ultimately admitted some relationship with the complainant party. We, therefore, feel that he is not only a chance witness but is also related to the complainant party and his previous conviction for theft further detracts from the value of his evidence. We hold that Saee (P. W. 9) had not seen the occurrence.
11. Salehoon Muhammad and Hayat P. Ws. Admitted that they had licensed guns. Saes (P. W. 9) was on a horse-back and we have also in evidence that there was a horse and a mare at the dera of the deceased. If these witnesses had seen the occur--rence, there is no reason why they should not have pursued the assailants and tried to capture them. We have also a clear impression that the story that Saee alias Anwar (P. W. 8) and Hayat (P. W. 10) had slept that night at the dera of the deceased is not correct. Saee (P. W. 8) said that four or five minutes after his father left for the police station, he also left the spot. He was not able to say as to what was the imperative nature of the business which took him from the spot leaving there the dead body of his uncle. In the inquest report is mentioned that only one Zakir Hussain Shah was found near the dead body.
12. There was a purpose in mentioning that Hayat P. W. Had slept that night at the behak of Salehoon Muhammad P. W. As has been seen above, Hayat was one of the main accused in the murder of Malka. It has also been stated by Salehoon (P. W. 7) that out of fear of his life he used to sleep at different places. We can clearly. See that the purpose of mentioning the fact that Hayat P.
W., slept at the behak of Salehoon P. W. On the night of the occurrence was to suggest that the accused had actually come to kill Hayat P. W. But finding him not there committed the murder of Shera deceased.
13. The occurrence did take place in the latter part of the night but it cannot be positively held that it took place at about nimazwela. We are, however, doubtful if the alleged eye-witnesses had seen the occurrence. We have held above that Saee (P. W. 9) was not present when the occurrence took place. Even if we had found that Salehoon and his son Saee alias Anwar were there, we would not uphold the conviction of the appellants in the absence of any corroboration. The allegation is that two appellants, namely, Bahadur and Saee, separately fired from their guns. These two shots could be fired by one man Where is the guarantee that each one of these appellants fired separately. In the absence of positive evidence to that effect it is not possible for us to believe the evidence of hostile witnesses.
14. The learned Sessions Judge in acquitting Bahadur son of Sajawal, Aslam and Akbar, observed that they had no direct motive and they might be the innocent associates of their co-- accused.
We may point out that when some persons go armed along with others who are equipped with firearms for the purpose of commission of an offence, they cannot be said to be innocent associates of their co-accused. Under the law, they are vicariously liable for the offence committed by their co-accused. But the pre-requisite for such a finding is that the evidence produced by the prosecution should create that degree of probability which irresistibly leads to that conclusion of the culpability of the accused.
15. We have found that the evidence in this case is hostile and unreliable. The learned Sessions Judge himself acquitted three accused. Bahadur son of Sajawal, the acquitted accused and his son Anwar had appeared as prosecution witnesses against Salehoon P. W. And Shera deceased in a theft case. There is no doubt that the prosecution had spread their net too wide. We do not find any point of distinction between these three acquitted accused and the other accused who are not said to have used their arms. We find no corroboration of the hostile testimony against the two appellants who are said to have used their arms. We give the appellants the benefit of doubt and set aside the convictions and sentences. We direct that they shall be released forthwith unless they are lawfully required to, be detained in connection with some other case. We: refuse to confirm the sentence of death passed on Bahadur and Saee appellants. The appeal and the murder reference are decided accordingly.