I. MAHMOOD, J.---This judgment will dispose of these two criminal appeals of the appellants, Ghulam Haider son of Sono (Criminal Appeal No 58 of 1971) and Criminal Appeal No. 85 of 1971 respectively. The appellants (along with 3 other persons), namely Allah Rakhio son of Habib Ali; Ranjho son of Mohammad Khoso and Allah Bachayo son of Sahib, were tried for the murder of one Fazil son of Ali her, by the learned Additional Sessions Judge. Nawab Shah. The appellants were convicted under sec--tion 302 read with section 34, P. P. C. And sentenced for trans--portation for life, and a fine of Rs. 1,000 each, or in default to suffer farther R. I. For two years. The other three accused were acquitted.
2. The case of the prosecution is that on 27th December 1968, at about S p.m. Complainant Mm.
Gori was sitting in her house along with her two sons, deceased Fazil and Ali Bux. One Raaniho sore of Muhammad son of Muhammad Khoso carne to per house and called for Fazil outside as he had some work with him. The deceased Fazil, went away with Ranjho. Soon after Ali Nawaz (1'. W. 7) and Ghulam Kadir (P. W. 8) his nephew who were living in a village 15 or 16 miles away, came to visit Fazil but could not meet him as he bad previously left the house with Ranjho a short while ago. They decided to stay there for the night. Ali Nawaz is a cousin of deceased Fazil and Ghulam Kadir is a nephew of Ali Nawaz. Deceased Fazil did not return. 1 After taking meals, the complainant Mst. Gori and Ali Bux, her son (P. W. 6), Ali Nawaz (P. W. 7) and Ghulam Kadir (P. W. 8), were chit-chatting, when about 10-30 p.m. They heart: cries of "murder murder", of Fazil. Then the complainant, Ali Bux, Ali Nawaz and Ghulam Kadir went running towards the West from where the cries came, arid saw the two appellants along with Allah Rakhio, Ranjho, and Allah Bachayo armed with hatchets inflicting injuries to the deceased Fazil, with their hatchets on his body and head. The place of the incident was at a distance of about one athas away from the deceased's house. These few eye-- witnesses identified all the five accused, including the present two appellants, although it was moonlight. After murdering Fazil, they ran away but took with them the turban of Boski and Ajrak oaf the deceased.
3. On the following morning, at about 8-30 a.m. Mst. Gori, the mother of the deceased, went to Police Station Kazi Ahmed, which was about 6 miles away from her house and lodged the F. I. R.
Which was recorded by S. H. O. Gul Mohammad (P. W. 20). This office: went to the scene of offence and secured blood-stained earth, and prepared inquest report in the presence of mashirs. He then sentthe body for post-Mortem examinations to the Medical Officer. Sakrand. After carrying out the necessary investigations and interrogation, he secured one blood-stained shirt from the person of appellant Ghulam Haider son of Sono, in the presence of Mashirs Haji Muhammad Pinjal and Haji Khan under Exh. 33 and also one hatchet from this appellant which was not blood-stained under mashirnama Exh.
34. From the other appellant, Ghulam Haider son of Saifal, he recovered one blood-stained shirt and one hatchet which was not blood-stained under mashirnama Exh. 36 in the presence of the same mashirs. He also recovered the turban of Boski of the deceased from the acquitted accused Allah Bachayo and the deceased's Ajrak from the acquitted accused Allah Rakhio. The report of the Chemical Analyser stated that the shirts recovered from the two appellants were stained with human blood.
4. The motive for the murder put forward by the prosecution was that a month before the murder of Fazil all the five accused went to the house of the deceased', mother, Mst. Gori and asked for the hand in marriage of Mst. Nasima, the niece of Mst. Gori for Allah Bachayo (the acquitted accused) which Fazil refused and that the accused murdered the deceased because of refusal.
5. The prosecution relied in support of its case on the ocular evidence of Mst. Gori and Ali Bux (P. W.
6), Ali Nawaz (P. W. 7), and Ghulam Kadir (P. W. 8). The prosecution also relied on circumstantial evidence which comprised of the motive for the murder and also the recovery of the blood-stained shirts.
6. In their statements before the committal Magistrate as well as before the trial Court, the appellants denied the case of the prosecution and stated that the prosecution witnesses have deposed against their, due to long standing enmity.
7. The trial Court determined the points in issue and came to the conclusion that in view of the medical evidence of Mr. Zahid Hussain, who conducted the post-mortem examination, his finding was that the deceased was murdered. Although he appears to have been impressed with the ocular evidence of the four prosecution witnesses, he observed that they were closely related and also that there was enmity between them and the accused, which was long standing as well as the enmity recently created because of the dispute over the hand in marriage of Mst. Hasina.
Accordingly, the trial Court observed that it would not be prudent to base his conviction on such interested evidence of these witnesses unless there is corroboration. We have ourselves consi-- dered the evidence of the four eye-witnesses and are not prepared to accept it. In view of the material discrepancies and contradictions in the evidence of Mst. Gori and Ali Bux, her son, it is difficult to believe that Ranjho, who came to the house to Ball the deceased and who admittedly was on inimical terms with him, should go out to meet him, or that his muter and brother did not try to stop him. We also think that it is unlikely that the eye-witnesses could have reached the scene of offence in tithe on hearing the cries to see the accused give hatchet blows to the deceased. In fact, in her cross-examination the complainant Mst. Lion said that before they reached there, the accused had already given blows and killed the deceased. She again said that when they reached there the deceased was already dead. It also seems strange to us that despite the cries of the deceased nobody from the neighbourhood came upon the scene. It seems also odd that the F. I. R.
Was lodged the next day at Police Station Kazi Ahmed which was only 6 miles away by the deceased's aged mother, when it would appear more convenient that her son Ali Bux aged 21 years, should have done so. It also seems to us that A P. Ws. Ali Nawaz and Ghulam Qadir are chance witnesses who have travelled 15-16 miles to meet the deceased without any specific object. For these reasons we are not inclined to accept the testimony of the eye-witnesses.
8. We are, however, in full agreement with the trial Court that the corroborating evidence of recoveries of articles from the persons of the two appellants is not satisfactorily proved because the mashir of recovery Muhammad Pinjal (P. W. 11) stated that no recoveries were made in his presence of the blood-stained shirts and the hatchets from the persons of the two appellants. The other mashir was not examined to prove the recovery. That left the trial Court with the evidence of the Investigating Officer S. H. O. Gul Mohammad. The trial Court thought that he was a truthful witness without bias or enmity and that the recovery of the blood-stained clothes from the person of the two appellants by him in his opinion was sufficient corroboration of the ocular evidence of the eye-witnesses. We have already observed that we are not prepared to believe the evidence of the eye-witnesses. In the circumstances, the conviction of the appellants cannot be upheld.
Accordingly, we set aside the conviction of the two appel--lants before us and allow these appeals. We order that they be acquitted and released forthwith, if not required in connection with any other case.
9. In view of the acquittal of the appellants, the Suo Moto Reference No. 13 of 1971 for enhancement of sentence is withdrawn.