' AJMAL MIAN, J.--- The above appeals are with the leave of this Court upon petition for leave filed by the complainant and also a separate petition for leave filed by the State against the acquittal judgment dated 6-10-1983 passed by a Division Bench of the High Court of Sindh in Confirmation Case No,14 of 1981 and Criminal Appeals Nos.79 and 81 of 1981,, whereby the convictions and sentences awarded by the ex-officio Additional Sessions Judge, Khairpur, through his judgment, dated 5-3-1981, namely, death sentences under section 302 read with section 34, P.P.C. To the three respondents and imposing a fine of Rs,3,000 each under section 544-A, Cr.P.C. With the direction that if the fine was realised, the same was to be paid as compensation to the heirs of the deceased, four years' R.I. Under section 449, P.P.C. And to pay Rs,1,000 each as fine and in default, to further undergo R.I.For six months, and the sentence of one year awarded to respondent No,1 under section 13-D of the West Pakistan Arms Ordinance, were set aside and the Reference made by the learned Additional Sessions Judge for confirmation of death sentences was rejected and the appeals filed by the respondents were accepted.
2. Leave to appeal was granted to consider the question, whether by acquitting the respondents the High Court had kept in view the sound' principles of criminal justice.
3. The brief facts are that P.W.1 Bakhshan son of Noor Muhammad Shaikh, who was working as a Driver for the deceased Naseem Ahmed Khan Kharal on his jeep for nearly 15 years at the time of incident, lodged F.I.R. (Exh.17) at 4-00 a.m. At Gambat Police Station on 14-7-1978. The version given by him was that the deceased owned land in Deh Saidi Bala in Taluka Gambat, where he had come about 7 days before his murder and was living in his Otak to look after his land as well as to settle dispute as to Raj people. It was averred that the complainant also came with the deceased and was living with him in his Otak which was surrounded by a wall of Pacca bricks with entrance in the East. It was further alleged that during night time, the deceased Naseem Ahmed Khan Kharal, the complainant Bakhshan, deceased's Munshi Gul Muhammad Shaikh and his servant Ayoob Abro, used to sleep in the courtyard where there was an electrict bulb. It was averred that on the night between 13 and 147-1978, the deceased was sleeping in the courtyard of Otak, the complainant, Munshi Gul Muhammad Shaikh, and servant Ayoob Abro, were also sleeping on separate cots near the cot of the deceased, when at about 2-00 a.m. The complainant woke up on account of some sound and found on the electric light respondent No,1 Rab Rakhio armed with a pistol and respondent No,2 Saleh son of Jumo, armed with a hatchet standing towards the head side of the cot of deceased Naseem Ahmad Khan Kharal, he also found that, respondent No,3 Attu alias Atta Muhammad, also armed with a hatchet, was standing in the courtyard near the entrance. He also witnessed placing of pistol on the left cheek of the deceased by respondent No,1 Rab Rakhio and firing of the same at him. Thereupon, he raised cries and on his cries as well as on firearm report, P.Ws. Gul Muhammad Shaikh and Ayoob Abro woke up and found the above accused persons in the Otak, who threatened them not to get up from their cots otherwise they would also be murdered. After that, the respondents ran away. The complainant and above P.Ws.
Gul Muhammad Shaikh and Ayoob Abro found Naseem Ahmed Khan Kharal lying murdered and the blood was oozing out from his injuries. It was also alleged that on the fire-arm reports and cries, P.W. Taj Muhammad and other Haris of the deceased were also attracted to the place of Wardat, to whom P.Ws. Gul Muhammad Shaikh and Ayoob Abro narrated the incident. The complainant and the above P.Ws. Also found one empty cartridge of .12 bore pistol lying in the courtyard near the wall towards northern side of the cattleshed. The complainant left the above persons near the dead body and he went himself in the jeep to Gambat Police Station for lodging of the F.I.R. The motive as disclosed in the F.I.R. Was, that during the month of last December, Abdul Razzaq Kharal, a relation of the deceased Naseem Ahmad Khan Kharal, filed a dacoity case against respondents Nos.1 and 2 Rab Rakhio and Saleh, and their relatives at Gambat Police Station which had proceeded before the Military Court and about four months prior to the incident in question, the above accused persons were acquitted. They had nourished grudge against the deceased because he had helped his relative Abdul Razzaq Kharal in that case.. The above FIR. Was recorded at 4-00 a.m. By P.W. Rasul Bakhsh Rahoo, who was working as Sub-Divisional Police Officer at Gambat and was the Incharge of that police station. He proceeded to the place of Wardat and prepared the Mashirnama of Wardat in presence of Mashirs Muhammad Saleh and Ibrahim. He found that the dead body of Naseem Ahmed Khan Kharal was lying in the courtyard having injuries of fire-arm on the left cheek. He also found blood mark on the pillow, bed-sheet' and Ajrak of the deceased and so also on the ground near the cot and on the Chappal of the deceased. He also found one empty cartridge of .12 bore lying near the door of the cattle pen in the Otak. He secured it and sealed the same, so also the blood-stained sample of the earth of the place of incident. He prepared inquest report, sent a request to the Medical Officer, Dr. Rahim Bakhsh Bhatti, Medical Officer, Gambat, to carry out post-mortem at the Otak of the deceased instead Government Dispensary in order to avert law and order problem. He recorded the statements of P.Ws. Ayoob, Gul Muhammad, Taj Muhammad, Khuda Bakhsh, Ramzan, Nihal, Head Constable Muhammad Ramzan, Amir Bakhsh and Police Constable Allah Bakhsh. On 15-7-1978, he recorded the statement of P.W. Pir Bakhsh Narejo. After that, he handed over the investigation papers to Mr. Aslam Soomro, S.H.O. Of Gambat Police Station, who had resumed his duty by then. P.W. Muhammad Aslam Soomro arrested respondent No,1 on 25-7-1978 from his house situated in Mitho Khuhro. He also arrested on the same day Saleh son of Jumo from the same place, who voluntarily led to the recovery of weapons, namely, respondent No,1 an unlicensed country made pistol and' respondent No,2, unblood-stained hatchet in presence of Mashirs Photo and Nooral, whereas respondent No,3 Attu alias Atta Muhammad was arrested by him on 27-7-1978 from his house situated in village Khairiri in presence of Mashirs Kadir Dad and Yar Muhammad. As respondents Nos.1 to 3 were tried with seven other co-accused, who were acquitted by the learned Additional Sessions Judge, they were also arrested on various dates. The present respondents and the other co-accused also allegedly made judicial confessions. Upon completion of the investigation, the challan was submitted as follows:--
(i) The present respondents and seven co-accused were charged under section 120-B, P.P.C. For conspiring to murder the deceased;
(ii) the present three respondents were charged under section 449, P.P.C. For committing trespass at night;
(iii) the present three respondents alongwith one Piroo alias Piral were charged under section 302 read with section 34, P.P.C.;
(iv) respondent No,1 Rab Rakhio was also charged under section 13-D of the West Pakistan Arms Ordinance.
4. The prosecution, in support of the case, examined the complainant Bakhshan, who produced F.I.R. (Exh.17), P.W. Gui Muhammad Shaikh (Exh.18), P.W. Ayoob Abro (Exh.21), P.W. Taj Muhammad (Exh.23), Kadir Bakhsh (Exh.25), Head Constable Muhammad Ramzan (Exh.26), P.W. Ramzan son of Ghullan (Exh.27), Dr. Raheem Bakhsh Bhatti, who carried out post-mortem and prepared post- mortem report (Exh.30), P.W. Nihal (Exh.32), P.W. Pir Bakhsh son of Haji Illahi Bakhsh (Exh.33), P.W. Haji Allah Wassayo (Exh.35), P.W. Madad Ali, Tapedar (Exh.36), who produced the sketch of the place of Wardat (Exh.37), P.W. Muhammad Saleh Shaikh (Mashir) Exh.38, who produced Mashirnama of the Wardat (Exh.39), inquest report of the dead body (Exh.40) and two simple copies of the Mashirnama of the Wardat (Exhs.41 and 42), P.W. Photo Mashir (Exh.43), who produced the Mashirnama of arrest of respondents Nos.1 and 2, Rab Rakhio and Muhammad Saleh, Mashirnama of recovery from respondent No,1 (Exh.45), the Mashirnama of recovery of hatchet of accused Saleh (Exh.46), and the Mashirnama of arrest of accused Saleh (Exh.47), the Mashirnama of arrest of accused Moula Bakhsh' (Exh.48). A number of other witnesses were examined to prove the arrest and Mashirnama of arrest of the other co-accused. P.W. Zafar Ali, a Magistrate was also examined, who supervised the footprints tests of the present respondents (Exhs.59 and 60). The above aforesaid police official Rasul Bakhsh Rahoo and Muhammad Aslam were also examined, so also P.W. Ghulam Abbas, Director, Forensic Science Laboratory, Karachi, who produced composite photographs of the crime and test empties (Exh.74). P.W7Abdul Majid, Mukhtiarkar and First Class Magistrate, was also examined to prove the judicial confessions of the present respondents (Exhs.78, 79 and 80) and of accused Piroo alias Piral (Exh.81). The respondents and the other co- accused in their statements under section 342, Cr.P.C. Denied the factum of having committed the offence, they alleged that they were falsely implicated on account of enmity. Respondent No,1 also produced a number of documents. He also pleaded that at the time of murder, he was in Hyderabad.
5. The learned Additional Sessions Judge, after recording of the evidence and hearing of the learned counsel for the State and the accused, acquitted the other seven co-accused from the charges referred to hereinabove, but convicted the present three respondents in the above terms.
Thereupon, the aforesaid reference for confirmation of death sentences awarded to the respondents was made by the learned Additional Sessions Judge to the High Court, whereas the respondents filed the aforesaid 'appeals, which were allowed and the Reference was rejected. After that, the above two petitions for leave to appeal were filed in which leave was granted to consider the above question.
6. None appeared for the respondents. We have heard Mr. Abdul. Ghafoor Mangi, learned Additional Advocate-General for the petitioner.
7. It seems that the High Court set aside the conviction of the present respondents inter alia for the following reasons:--
(i) That inaction on the part of the three alleged eye-witnesses, P.Ws. Bakhshan, Gul Muhammad and Ayoob Abro, not to save their master, belies their presence;
(ii) the presence of P.Ws. 2 and 3 Gul Muhammad and Ayoob was doubtful as they would have awakened if they would have been present in the Otak as P.W.1 had Woken up on account of sound;
(iii) that there was only one cot lies, !Es the cot of the deceased which was allegedly used by P.W.
Ayoob and, therefore, the presence of P.Ws. Bakhshan and Gul Muhammad is doubtful;
(iv) that the P.Ws. Gul Muhammad and Ayoob have filed criminal cases and/or appeared as witnesses at the behest of the deceased;
(v) that the recovery of the pistol could not have been relied upon, firstly, as the Mashir to the recovery of the same was not a local resident from the place from where the recovery was made; and secondly, the empty found from the place of' Wardat was not despatched immediately to the Ballistic Expert, but was sent after the recovery of the pistol and that too, after delay of more than two months.
8. Adverting to the above first reason that inaction on the part of the three alleged eye-witnesses, Bakhshan, Gul Muhammad and Ayoob Abro, not to save their master; belies their presence, it may be pertinent to reproduce the relevant observations of the High Court, which read as follows:-- "Bakhshan was a quiet spectator of the entire view and he did not react into raising an alarm or challenging the assailants which was natural and compelling under the circumstances. Bakhshan being the true servant of the deceased, should have jumped at the entry of the assailants and should have thwarted their attempt to kill his master. This is the only natural impulse even in a case of coward. His inaction at the time when he is required to save his master is criticized vehemently by the learned counsel Mr. Azizullah Shaikh and he points out that the witness has either not seen the assailants or he was not sleeping at the Vardat. Even the reflex movement of Bakhshan would come into play and he would grapple the assailants, no matter what the consquences be. Other witnesses Munshi Gul Muhammad and Ayoob Abro were also victims of the same lethargy and inaction while counteracting the assailants in order to catch them. There were three strong witnesses sleeping around the deceased and they could not do anything to save their master."
We are unable to subscribe to the above reasoning of the High Court. The conduct of the alleged witnesses not to intervene or catch the assailants, who were armed with deadly weapons, seems to be a normal conduct keeping in. View that the above witnesses were unarmed and they woke up on account of the above incident.
9. The above reasons Nos. (ii) and (iii) are inter-linked and, therefore, can be conveniently dealt with together. It is true that in the Mashirnama of the place of Wardat, reference has been made to the two cots and not to four cots. However, the Mashir M. Saleh son of Ghulam Hussain, whose house was situated at about 100 paces from the place of Wardat and against whom nothing substantial has been brought on record except that be was cultivating the deceased's land to indicate that he was an interested witness, has stated 'in all four cots were lying at the Wardat'. It is possible that in the Mashirnama, this is an omission. Since the deceased had enmity with a number of persons, it is highly probable that he would have ensured that his employees would sleep at night at his place. The presence of P.W.1 Bakhshan (the Driver of the deceased) cannot be doubted as he was not the resident of the village where the incident had taken place. Secondly, he was the complainant who lodged the F.I.R. At 4-00 a.m. In the morning at the Police Station Gambat, which was situated at a few kilometres from the village. Similarly, the presence of the other two witnesses, P.Ws. Gui Muhammad and Ayoob, cannot be doubted as they were very much present at .The place of Wardat immediately after the incident had taken places
10. Reverting to the above fourth reason that the P.Ws. Gul Muhammad. And Ayoob have filed criminal cases and/or appeared as witnesses at the behest of the deceased, it may be stated that the factum that the above witnesses either filed or had appeared in the criminal cases at the behest of the deceased, would make them interested witnesses necessitating independent C corroboration of their evidence, as in the present case, more than one person was implicated. In this regard, reference may be made to the case of Niaz v. The State PLD 1960 SC 387 and the case of Nazir and others v. The State PLD 1962 SC 269.
' In the above first case, this Court while dilating upon the question as to who is an interested person, has held that in cases where interested witnesses charged one person only with the commission of offence or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may be in the absence of anything making it unsafe to do so, be accepted without corroboration, but if the Court found that the number mentioned by interested persons may have been exaggerated, their word cannot be made the basis of conviction and the Court, will have to look for some additional circumstances which corroborates their testimony and this circumstance needs not be such that it can of its own probative force bring home the charge to the accused. Whereas, in the above second case, the judgment of the above first case was explained and it was held that there cannot be an inflexible rule that a statement of an interested witness can never be accepted without corroboration and that if the Court finds interested witness as incapable of falsely implicating an innocent person, his testimony can be relied upon but he will be an exceptional witness. It has been further held that so 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. Since in the present case the learned Additional Sessions Judge himself rejected a number of pieces of evidence, for example, retracted confessions and testimony of P.W.
Pir Bakhsh on the factum of conspiracy etc. And as ten persons were roped in by the prosecution, rule of prudence demands, that there should be some reliable corroborative piece of evidence.
Against respondent No,1, there is recovery of the country-made pistol which matched with the empty recovered from the place of Wardat and also with three pellets recovered from the body of the deceased during postmortem.
11. This leads us to the aforesaid fifth reason found favour with the High Court, namely, that the recovery of the pistol could not have been relied upon, firstly, as the Mashir to the recovery of the same was not a local resident from. The place from where the recovery was made; and secondly, the empty found from the place of Wardat was not despatched immediately too the Ballistic Expert, but was sent after the recovery of the pistol and that too after delay of more than two months. In this regard, it may be observed that the learned Additional Sessions Judge has recorded the following reasons on the question, as to why a resident of locality could not be made Mashir to recoveries:- "76. The learned defence counsel had attacked the recovery of country made pistol from accused Rab Rakhio. In this respect it was argued that both the Mashirs before whom the recovery was made, were not the persons of the locality, and they were chance witnesses. As I have already discussed in this case, that the police had first arrested accused Rab Rakhio and Saleh son of Jumo from the village of Mitho Khuharo in Taluka Ratodero, District Larkana. The recoveries were not made at that place. It was flood season and both the Mashirs were picked by Mr. Muhammad Aslam Soomro, S.H.O. From Ripri Bridge while he went to arrest the accused persons, It has come in his evidence that at some place they had gone on foot and at other place they had gone by boat to the village of the accused. Therefore, in such situation the S.H.O. Was right in securing the two Mashirs before he went to arrest accused Rab Rakhio and Saleh son of Jumo, who were at large since the time of incident."
12. From the abovequoted portion of the judgment of the learned Additional Sessions Judge, it is evident that there was cogent reason for not having a Mashir of the locality from where the recovery was effected at the pointation of respondent No,1. Even if we were to ignore the evidence of P.W. Photo for the above reasons, the testimony of the S.H.O., namely, of P.W.19 Muhammad Aslam Soomro remains in the field, which can be relied upon as has been held by this Court in the case of Muhammad and others v. The State PLD 1981 SC 635, wherein inter alia it has been held that testimony of a policeman as to witnessing recovery of articles from an accused cannot necessarily be disbelieved merely because of his being policeman.
' Taking up the above second limb of the above fifth reason, it may be pointed out that the defence has not brought out anything on record through the cross-examination to indicate that the sealed parcel of the empty was tampered with before the recovery of the pistol or after the recovery of the pistol, nor anything has been brought out through the cross-examination to cast doubt as to the recovery of the pistol from respondent No,1. There is no doubt that there was dely in despatching of the above parcel to the Ballistic Expert,' but simpliciter delay cannot nullify the evidentiary value in the absence of attending circumstances casting doubt as to the genuineness of the recovery. In this regard, reference may be made to the following portion of the judgment of this Court in the case of Sikandar and 2 others v. The State PLD 1981 SC 477:- "Coming to the fourth and the last contention of Mr. Brohi, relating to the delay in sending the blood-stained articles to the Chemical Analyser, the High Court has been pleased to repel the same in these words:-- `From the record it "appears that the articles are first sent by the S.H.O. To the Deputy Superintendent of Police who forwards them to the Government Chemical Analyst. There is no cross-examination of the Investigating Officer or the S.H.O. And nothing has been brought out to suggest that the police had played foul and had created false evidence in the case. In our view, the delay in sending the articles for analysis has not materially affected the merits of the case.'
' Mr. Brohi, however, invited our attention to the case of Wazir v. State PLD 1960 Kar. 676 in support of his contention that delay simpliciter must result in rejection of evidence of the Chemical Analyser. In this case, however, the evidence of the Ballistic Expert was not accepted,. Because there was no evidence that the empty cartridges from the crime weapons recovered were made into sealed parcels at the spot coupled with the fact that there was inordinate delay in sending the crime empties and the weapons to the Expert.
' In a recent case of Noor Alam v. State PLD 1978 SC 137 the evidence of the Expert was accepted, notwithstanding the delay in forwarding the crime weapon and the empties to the Expert, for the reason:-- `... There is also no evidence to show that the empties and the gun were not kept in sealed parcels, as soon as they were secured. The delay in forwarding them has to be considered in this background. There is no evidence that the sealed parcels were tampered with. And, on the other hand, as there might have been an explanation for the delay in forwarding the sealed parcels, the appellant should have cross-examined P.W. Nek Muhammad Khan about the delay in forwarding the gun and the empties. As he did not, the cases cited do not help the appellant's case, and we agree with the view of the High Court that the recoveries have been proved....'
' As in the case of Noor Alam, the evidence in the present case is that the articles found stained with blood were secured under a proper Mashirnama and properly sealed and there was not even a suggestion. Of any tampering. The Investigating Officer was also not cross-examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence:
13. It may be observed that P.W.20 Ghulam Abbas, Director, Forensic Sindh Police, Karachi, has appeared as a witness and in his report, he has given seven reasons for opining that the empty recovered from the place of Wardat, was fired from the pistol recovered from respondent No,1. He also opined that the three pellets recovered from the dead body, correspond to the crime empty.
14. Even if we were to ignore the corroborative evidence of P.Ws. Taj Muhammad and Khuda Bakhsh, who allegedly reached the place of Wardat immediately on hearing gun report and the cries of the eye-witnesses, the evidence of above three eye-witnesses corroborated by the recovery of pistol, crime empty, three pellets from the dead body, read with the evidence of the above P.W.20 Ghulam Abbas, Forensic Expert, with his report and the evidence of P.W.8 Dr. Raheem Bakhsh, proves the case beyond doubt at least against respondent No,1 as there is no recovery of the nature from the other two respondents which can be used as corroborative piece of evidence.
15. We are mindful of the fact that we have seized the matter in an acquittal appeal in which approach is somewhat different from an appeal arising out of conviction. This Court cannot interfere with an acquittal merely because on re-appraisal of the evidence, it comes to the conclusion different. From that of the Court acquitting an accused provided both the conclusions are reasonably possible, but if the conclusion reached by the Acquitting Court is such that no reasonable person would conceivably reach, the Court would interefere. In this regard, reference may again be made to the case of Sikandar and 2 others v. The State (supra).
16. In the present case, the learned Additional Sessions Judge has given cogent reasons for recording conviction. The High Court was not justified in setting aside the conviction at least against respondent No,1 as there was reliable corroborative evidence available against him. The reasons found favour with the High Court referred to hereinabove, in our view, were not such which warranted the acquittal of respondent No,1. The view taken by the High Court in respect of the above respondent No,1, seems to be such which could not have been conceiveably reached by a reasonable person. We would, therefore, partly allow the above appeal to the extent of respondent No,1, Rab Rakhio, and set aside the judgment of the High Court and would restore the judgment of the learned Additional Sessions Judge, with the modification that death sentence would be substituted by life imprisonment.