TUFAIL ALI A. RAHMAN, C. J.-At the end of the hearing of this appeal we announced judgment, allowing the appeal and acquitting all the appellants, and I now proceed to record my reasons for following this course.
2. The deceased Muhammad Ashraf, the injured Zulfiqar A.I, who is also the first informant and the three eye-witnesses Ashraf A.I, Sardar Khan and Imamuddin are closely related inter se and lived at the material time in village Ghulam Shah Mari which is at distance of about four miles from the Police Post Udero Lal in District Hyderabad. Zulfiqar A.I is a brother-in-law of the deceased while Imamuddin is the father of Zulfiqar A.I and Sardar Khan a brother of Imamuddin. Asghar A.I is a brother of the deceased who was the son of Pir Muhammad, who, although not a witness, nevertheless needs to be mentioned as a material name in the story leading to the present case.
The five appellants-and one Iqbal, who was also accused with them but died before the trial are, on the other hand, closely related amongst themselves and live some three or four acres away from the houses of the prosecution party. It is the case of the prosecution that two months prior to the present incident one of the appellants, namely, Muhammad Akram had filed a case against the first informant Zulfiqar A.I and others of his relations but that this case was not sent up since the police was satisfied that it was a false case. On the 3rd June 1970 the appellants Mukhtar Ahmad, Ghulam Sarwar, Mohammad Aslam and the deceased Muhammad Iqbal are said to have trespassed into the house of Pir Muhammad and Pir Muhammad lodged a first information report as to this offence at the Police Post Udero Lal on the 4th. In connection with the investigation of this case the attendance of witnesses was required by the police on the 5th June 1970 and accordingly at about 7-30 a.m. The first informant Zulfiqar A.I and the deceased Mohammad Ashraf set out for Udero Lal followed by the witnesses Asghar A.I, Sardar Khan, Imamuddin and Mohammad A.I, a brother of Sardar Khan and of Imamuddin. Although the learned Judge in the course of his judgment refers to Mohammad A.I as P. W. Muhammad A.I does not seem on the record that he has been examined nor am I able to discover any explanation for his non-examination. In the 'circumstances of the present case, however, this is not very material, since Muhammad A.I is admittedly a relation of the others and such criticism as might be available against them would be available against him also and his evidence, therefore, even if it was on record, would not have added materially to the weight of the testimony against the appellants.
3. When the deceased and the injured Zulfiqar A.I reached the field of Haji Gahanwar Khan Katiar, they found the five appellants and the said Iqbal standing in wait for them and of them while Muhammad Aslam and Iqbal were armed with hatchets the rest carried guns. They attacked the two with the result that both suffered gunshot injuries but Zulfiqar A.I was able to make good his escape to a banana garden nearby. In the meantime the rest of their party came up and, very soon thereafter, Muhammad Asghar came and told Zulfiqar A.I that Muhammad Ashraf had died as a result of the gunshot injuries. Thereafter Muhammad Asghar went to Tando Adam, from where he procured a jeep and in this jeep took Zulfiqar A.I to the Police Post, Udero Lal where Zulfiqar A.I's first information report was recorded at 11-40 a.m. By the Assistant Sub-Inspector of Police, Muhammad Laik, who then sent the first informant to the Medical Officer, Matiari and then proceeded to the scene of offence himself. At the scene, he carried out an investigation which of course included the examina--petition of the witnesses and in the course of which he recovered some empty cartridges from the scene of offence. It is claimed that thereafter a gun was secured from one Mansha A.I and three guns from one Muhammad Hussain: the connection of these two persons with the appellants had not been brought out in the evidence but from the mashirnama it appears that the former is a hari of Mohammad Aslam while the latter is the father of Muhammad Akram. The investigation was then taken up by the S. H. O. Ahmad A.I but, beyond the fact that he recorded a gun from the appellant Mukhtar the remaining investigation, that he carried out, appears to be of a formal character. The five appellants were then sent up for trial, Iqbal having died on the day of the incident itself, In an accident and were eventually tried by the learned Ist Additional Sessions Judge. Hyderabad, who has convicted them all under sections 302 and 307 of the Pakistan Penal Code both read with section 149 of the same Code awarding a sentence of imprisonment for life for the former offence and also a fine and imprisonment for three years and a fine for the latter offence.
4. Neither in the trial Court nor before us, did the prosecution place any reliance upon the recoveries although the evidence of the Ballistics Expert was to the effect that the empty cartridges were fired from the guns recovered from Mansha A.I, and Mukhtar. There were good reasons for this and the learned Judge has also briefly mentioned the fact without commenting upon it further and the convictions of the appellants must, therefore, stand or fall on the view that is taken of the reliability of the eye-witnesses. That tiding so, it is unnecessary to consider the argument which learned counsel put forward that the evidence of Mohammad Laik, not having been recorded in the Court of Session, his deposition in the committal Court, without any proper evidence as to his alleged serious illness, is not admissible inasmuch as the provision of section 33 of the Evidence Act have not been strictly complied with. It appears to me prima facie that there is force in the contention of learned counsel but nothing depends upon the reception or otherwise of this evidence and I do not, therefore, propose to advert to the matter any further.
5. Now of the four eye-witnesses produced, two did not support the prosecution that is to say, Sardar Khan and Imamuddin. They were, therefore, treated as hostile witnesses by the prosecution and, with the permission of the Court, were cross-examined by the learned Public Prose--cutor; their depositions recorded in the Court of the committing Magistrate were also exhibited under the provisions of section 288 of the Criminal Procedure Code in the Court of Sessions. Now, it is true, of course, than when such a course is followed, these depositions become substantive, evidence in the trial, but it must always be a matter of critical examination for the Courts to consider which of the two conflicting versions, put forward by such a witness, if any, should be accepted as the truth.
It does not always and necessarily follow, that the earlier version should be accepted all that the law permits, by reason of section 288, is that, by way of exception to the general rule, such a deposition is substantive evidence and not merely a previous statement which can be used for the purpose of contra--diction or corroboration. It is as if the witness has stated the same thing before the Court of Session but this does not mean that the deposition in the Court of Session can be wholly ignored and, while of course, the fact that the committal Court statement was earlier in point of time is some reason for preferring it, that would not be a conclusive consideration and the Court must attempt, as best it can, to see which is the true version. If it is satisfied upon the circumstances of the case that a particular version is true beyond reasonable doubt, then of course, it would accept it but that would be a finding of fact as any other finding not dependent upon the application of any principle of law. In the present case, however, I am really relieved of the necessity of attempting even such an examination.
6. The evidence of Sardar Khan in the Court of Session was sub--stantially to the effect that he himself was working in the field when Mansha (who it will be remembered is a hari of Aslam) came and informed him that Ashraf had been murdered. He did not claim to be an eye-witness at all. In the committal Court, it is true that be did say that he was an eye-witness but went on to add that the culprits had muffled faces and that he could not, therefore, identify any of them 'and that he had no talk with the first informant, Zulfiqar, at all. This may not be true and indeed, I do think, that what he then said was not worthy of belief. The essential question, however, is not really whether he was lying then or later but whether there is substantive evidence on the record which implicates the appellants and which the Court can accept. Clearly, on either version, there is not. Any further speculation, therefore, as to which of these statements gives a truthful account and whether the witness had been tampered with and, if so,-at what stage, is really superfluous.
7. Imamuddin, the father of the first informant and brother of this Sardar Khan, did say in the Court of Session that he saw six persons of whom he identified four that is the appellants Muhammad Akram, Ghulam Sarwar and Mukhtar and the deceased Iqbal, claiming that each of them bad a gun in his hand. But he then goes on to say that he cannot say which of them fired any gun and that he only heard gunshot reports. In his case also, the statement recorded before the Magistrate was brought up under section 288, Criminal Procedure Code and the witness treated as a hostile witness. In that statement he said that Iqbal gave hatchet blows to Ashraf, the deceased but the deceased had no hatchet blows on his body. There were other discrepancies also but, in the case of Imamuddin, at least, the statement in the Court of the Magistrate did implicate alt the appellants and I pause for the time being to consider the depositions of Zulfiqar A.I and Asghar A.I before commenting further upon the evidence of Imamuddin either as recorded in the Court of Session or in the committal Court.
8. Of the other two witnesses Zulfiqar A.I did clearly implicate all the appellants to the full and, whatever might be stated against the other witnesses, the presence of this witness at least cannot be doubted inasmuch as he has received injuries and he also had lodged a first information report very soon after the occurrence. However, it, is the story as put forward by this witness that after two of the appellants instigated the others to kill both himself and Ashraf, he attempted to run away and, therefore, it does not seem likely that he should have seen the actual firing of shots on Muhammad Ashraf. On his own case he was injured while he was running away and was later informed that Muhammad Ashraf had met his death. It does not seem to me, therefore, that this witness is giving a wholly truthful account of the- matter and confining himself only to what he saw.
9. The last of the eye-witnesses is Asghar A.I who does not claim that he bad to go to the police station on that day but merely that he was going to see his injured father, that is to say Pir Muhammad, and that, because the route to the bus-stand was the same, he was following the deceased and Zulfiqar A.I at a distance of about two acres. Now if he was following at a distance of about two acres, he could hardly have seen, as he claims to have seen, the assault upon the deceased and Zulfiqar A.I. This admission on the part of the witness, therefore, not only casts serious doubt upon his own veracity but upon that of Imamuddin and Sardar Khan, assuming that either one or both of them are supporting-the prosecution. As has already been seen, Sardar Khan has not really supported the prosecution in either Court but Imamuddin has in the committal Court. According to himself and even according to the other two witnesses, it was only the deceased and Zulfiqar A.I, who were going ahead and the rest were following behind and it is from this witness that we get an idea of the distance at which they were following the first two.
10. The not result of an examination of the depositions of these four witnesses, therefore, is that while Zulfiqar A.I is clearly a person whose presence at the scene is proved, there is no real reason to-doubt that the other three were following them but not at such a close distance as to be able to see the occurrence from the beginning at any rate. The fact that Sardar Khan even in the earlier stages of the case did not support the case against the appellants on the basis that he did not identify them makes the entire evidence suspicious. It is true no doubt, as I have already stated, that the likelihood is against what Sardar Khan is stating but the fact does remain that he did so state and that, it being broad day-light and the appellants being known to the witnesses before, it is in the highest degree unlikely that they would not be identified even if their faces were muffled. In all the circumstances, therefore, I do not think it safe to rely upon the evidence of these witnesses. A conviction in a criminal case, particularly for a capital charge, if based upon oral evidence, must be founded upon the evidence of witnesses of such unimpeachable character that there is no reasonable doubt that they are speaking the entire truth and such, I do not think, is the present case.
11. In any event, if I am wrong in my assessment of the evidence of these witnesses, it must still be remembered that there is an admitted background of hostility between the parties making it extremely unsafe to convict any one individual person upon the basis of their testimony without corroboration. Now the only corroboration in this case was the one to which I have already referred briefly and that is the recovery of some guns found by the Ballistics Expert to have been used in the crime. Quite apart from the fact that the prosecution had not relied upon these, it is to be remembered that of the two guns, so found to be used, one was not recovered from any of the appellants but from one Mansha said to be a hari of Aslam, Clearly, therefore, this- cannot be used against Aslam. The other gun no doubt was recovered from Mukhtar but it is a gun licensed in the name of his father and any of the family could well have had access to this gun. In the present case, the other persons accused are also members of the same family making it all the more unsafe to use this piece of evidence against Mukhtar.
12. In all the circumstances, therefore, I think that the guilt of none of the appellants is established beyond reasonable doubt. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.