1. ' By this judgment I propose to dispose of Criminal Appeal No, 112 of 1992 preferred by appellant Khanan son of Usman Dahar and Criminal Appeal No, 113 of 1992 filed by appellants Ghulam Hussain and Bago both sons of Umar Dahar. They were tried separately by the learned Additional Sessions Judge, Naushero Feroze who by his common judgment dated 26-4-1992 convicted all the appellants under section 302/149, P.P.C. And sentenced each of them to imprisonment for life and fine of Rs,20,000 or in default to suffer R.I. For one year more for the murder of deceased Ahmed Khan. All the appellants are also convicted under section 302/149, P.P.C. For the murder of deceased Din Muhammad and sentenced to suffer imprisonment for life and fine of Rs,20,000 or in default to undergo R.I. For one year more. The sentences for the two counts of murder were ordered to run consecutively. By the same judgment co-accused Nawab and Kazi Qamar were acquitted while co-accused Ibrahim was also acquitted having compromised with the legal heirs of the deceased. The appellants kaye challenged their conviction and sentence under these appeals.
2. ' The facts of the case are that on 9-7-1982 complainant Khuda Bux son of Ranjho lodged FIR No, 99 of 1982 at P.S. Moro alleging that on the same day he had gone to Deparja Town and on his way back Ahmed Khan, Din Muhammad, Muhammad Idrees, Muhammad Bachal, Sher and Rahim Dahar accompanied him. At about 11 a.m. When they reached near the garden of Rais Muhammad Yakoob, at that time accused Bago and others emerged from the bushes. At that time Bago, Khanan and Manzoor were armed with guns while accused Ghulam Hussain alias Salahuddin, Ibrahim, Nawab and Kazi Qamar were armed with hatchets. Accused Bago fired directly at Ahmed Khan, then Khanan fired directly at Din Muhammad while Manzoor fired at Idrees. Thereafter accused Ghulam Hussain gave hatchet blows to Ahmed Khan, Ibrahim gave hatchet blows to Din Muhammad, Nawab caused hatchet blows to Idrees and Ghulam Hussain also caused hatchet blows to Bachal. The complainant, P.W. Sher and P.W. Rahim had taken shelter behind the trees while the accused persons went away raising slogans. The complainant and others saw that Ahmed Khan and Din Muhammad had expired while Idrees and Bachal were injured. After they removed the injured to hospital Moro, the complainant went and lodged the report at P.S. Moro.
3. ' The report lodged by the complainant was recorded by P.W.10 Muhammad Hassan S.H.O. P.S. Moro who himself took up the investigation of the case. He proceeded to the Government Hospital Moro where he noted the injuries on the person of Idrees and Bachal in presence of witnesses Naban and Ghulam Muhammad under memo. Exh.14-A and also recorded their statements. He then proceeded to the place of Wardat which was pointed out by the complainant, he inspected the Wardat in the presence of same witnesses and prepared memo. Exhs.14-B. In the presence of same witnesses, he prepared Inquest Reports Exhs.14-C and 14-D in respect of the deceased and then he sent the dead bodies of Ahmed Khan and Din Muhammad for postmortem examination. On 10-7- 1982 he arrested accused Nawab, Ibrahim, Kazi Qamar and Ghulam Hussain alias Salahuddin in presence of Mashirs Jamoon and Bagh Ali under Mashirnamas Exhs.19-A and Exh.19-B. They also produced hatchets which were also secured by him under memo Exh.19-C and Exh.19-E and the same were also sealed at the spot. On 12-7-1982 he also arrested accused Manzoor who produced a gun, which was secured under memo. Exh.J and Exh.K in the presence of same witnesses.
4. Accused Bago was arrested on 16-7-1982 who also produced a gun, he secured the same under memo. Exh.19H and Exh.19-I respectively attested by the same Mashirs. After completing the investigation, he handed over the papers to his successor as he was transferred. Before his transfer, he had sent the incriminating articles to the Chemical Examiner, he received the report Exh.23-A. He had also sent the fire-arms to the expert for report, he received the same Exh.23-B. The challan was submitted by his successor.
5. ' The trial against the appellants commenced when charge Exh.2 was framed against all the accused, to which they did not plead guilty and claimed to be tried.
6. ' At the trial, the prosecution examined P.W. Khuda Bux, complainant P.W. Naban Mashir, P.W. Sher Muhammad eye-witness, P.W. Abdul Rahim another eye-witness, P.W. Atta Muhammad corpse- bearer, P.W. Abdul Karim Noorani, Medical Officer, P.W. Bagh Ali Mashir, P.W. Faiz Muhammad Tapedar, P.W. Muhammad Ismail process-server and P.W. Muhammad Hassan Investigating Officer. Thereafter the prosecution closed its side vide Exh.35.
7. ' After the conclusion of the prosecution case, the statements of all the accused were recorded under section 342, Cr.P.C. Accused Ghulam Hussain alias Salahuddin Exh.37, Kazi alias Qamardin Exh.38, Ibrahim Exh.39, Nawab Exh.40, Khanan Exh.41 and Bago Exh.42. All the accused have denied the prosecution allegations. They have denied the recovery of incriminating articles and they state that the witnesses have deposed due to enmity. None of them either wished to be examined on oath or wanted to examine any witness in their defence. After the conclusion of the trial, the present appellants were convicted while the others were acquitted as already mentioned hereinabove.
8. ' I have heard Mr. A.Q. Halepota, learned counsel for the appellants and Mr. S.Z.A. Qureshi, Advocate for A.-G. For the State. The latter has supported the judgment of the trial Court.
9. ' It has been submitted by the learned counsel for the appellants that enmity between the parties is admitted, therefore the evidence will have to be scrutinized with greater care and caution as there is no independent witness in this case. He further submits that the three eye-witnesses are closely related to each other and the deceased, while the two injured witnesses Bachal and Idrees have not been examined by the prosecution. He further submits that on the same evidence the trial Court has disbelieved the witnesses so far as accused Nawab and Kazi Qamar are concerned, while the same set of witnesses have been believed against the appellants. This line of action is not permissible without independent corroboration which is not available on the record.
10. ' I have gone through the evidence available on record with the assistance of the learned counsel and I have carefully applied my mind to the circumstances of the case. The appellants have been convicted by the trial Court on the strength of ocular evidence corroborated by medical evidence and further corroborated by the evidence of recovery. The ocular evidence comprises of P.W.
11. Khuda Bux, P.W.3 Sher Muhammad and P.W.4 Abdul Rahim. The medical evidence has come on the record through P.W.6 Dr. Abdul Karim Noorani, while the recoveries are sought to be proved through the evidence of P.W.2 Nabban in whose presence police secured one crime empty from the place of Wardat and P.W.7 Bagh Ali in whose presence the accused were arrested and various recoveries were made.
12. ' Before discussing the evidence, it may be noted that the three eyewitnesses are related inter se and also related to the deceased. According to complainant Khuda Bux, both the deceased Ahmed Khan and Din Muhammad were his cousins. P.W. Abdul Rahim is also a cousin of the complainant while P.W. Sheral (Sher Muhammad) is a nephew of the complainant. Mashir Bagh Ali is brother of P.W. Abdul Rahim. Again according to P.W. Sher Muhammad, the complainant Khuda Bux, P.Ws. Idris, Bachal, Rahim and he himself are all closely related to each other. P.W. Sher Muhammad has further stated that his father and Ramzan father of deceased Ahmad Khan are cousin brothers. This means P.W. Sher Muhammad and deceased Ahmad Khan are first cousins. He has stated that deceased Din Muhammad is nephew of Ramzan, as such, deceased Din Muhammad is also his cousin as mother of Din Muhammad is sister of Ramzan and cousin of father of Sher Muhammad. He also says that Mashir Bagh Ali is also nephew of Ramzan. Similarly P.W. Abdul Rahim says both the deceased were his cousins. Mashir Bagh Ali is his real brother. It will thus appear from the evidence of the three eye-witnesses, that not only they are closely related to each other, but they are also closely related to both the deceased as well as Mashir Bagh Ali.
13. It is now a settled principle of law that mere relationship of the witnesses, inter se or with the deceased is no ground to "dub" them as "interested witnesses". But where the witnesses are so related and there is deep-rooted enmity between the accused and the complainant party, in that event the relation witnesses become "interested witnesses" and the evidence of such interested witnesses cannot be relied upon unless the same is corroborated by an independent sources ' In the present case there is established enmity between the complainant party and the appellants. ,In the cross-examination of the three eye-witnesses, material particulars have been brought on the record to show there was deep-rooted enmity between the parties. P.W.1 Khuda Bux has admitted in his cross-examination that firstly one Ghulam Nabi who was a cousin of the appellants was murdered in which Ramzan uncle of the complainant alongwith Hussain and deceased Ahmed Khan were accused. Thereafter Punhal brother of Ramzan and uncle of complainant Khuda Bux was murdered. After the murder of Punhal, one Rahim brother of the appellants was murdered and in this case one of the co-accused was deceased Ahmed Khan.
14. After the present case was registered, the brother of the complainant lodged a criminal case under section 436, P.P.C. Against the relatives of the appellants.
15. ' From the above discussion it is clearly established that the ocular account of the incident is being furnished by witnesses who are not only closely related to each other and the deceased, but there is deep-rooted enmity beween the complainant party and the appellants. In this view of the matter the evidence of the eye-witnesses can only be accepted if the same is corroborated by an independent source.
16. ' In the above circumstances it will have to be seen whether the ocular evidence is believable or not, and if it is to be believed, then is there any other evidence available which can be used for the purpose of corroborating the ocular version. #TBS Vol. XLV #TBE ' The three eye-witnesses P.W.1 Khuda Bux, P.W.3 Sher Muhammad and P.W.4 Abdul Rahim have all stated in one voice that on the day of Wardat complainant Khuda Bux, Sher Muhammad, Abdul Rahim, Din Muhammad, Ahmed Khan, Idris and Bachal were all coming together from Deparja Town towards their village and at about 11 a.m. When they reached the garden of Heras, they saw accused Bago, Khanan, Manzoor, Ibrahim, Salahuddin, Kazi and Nawab who came out of the bushes. At that time Bago, Khanan and Manzoor were armed with guns while the remaining accused were armed with hatchets. Accused Bago fired from his gun which hit deceased Ahmed Khan. Khanan also fired from his gun which hit deceased Din Muhammad. Accused Manzoor also fired from his gun which hit Idris. Then accused Ibrahim gave hatchet blows to Din Muhammad, accused Salahuddin gave hatchet blows to Ahmed Khan, accused Nawab gave hatchet blows to Idris and accused Kazi gave hatchet injuries to Bachal. The accused persons had caused injuries due to old enmity. In the cross-examination of all these witnesses, the learned defence counsel has brought on record the details of the relationship between the witnesses and also the admitted enmity between them. The cross-examination was directed on these lines for the purpose of showing that no implicit reliance can be placed on the eye-witness account due to established enmity between the parties.
17. ' The learned trial Judge has relied on the evidence of the three eyewitnesses in the following words:--- "Thus the ocular account of this incident is fully supported by all the P.Ws. Examined in this case whose evidence is trustworthy and cannot be brushed aside due to relationship."
18. ' It is obvious that the learned trial Judge clearly fell in error as he has come to the conclusion that the evidence of the eye-witnesses cannot be brushed aside due to relationship, but the learned Judge lost sight of the fact that it was not merely relationship alone, but there was abundant evidence on record to show that apart from relationship there was deep-rooted enmity between the witnesses and the appellants therefore the eye-witnesses were in fact "interested witnesses" and their evidence could not be relied upon without independent corroboration. In this regard the learned trial Judge has made a further observation as follows:--- "Thus the ocular testimony is corroborated by the medical evidence which is further supported by recoveries and expert evidence."
19. The above observation made by the learned trial Judge is clearly based on misreading of evidence and law which I shall presently explain. It may be noted that under the law, medical evidence by itself cannot throw any light on the identity of the accused. In the case of the evidence of interested witnesses, if the medical evidence is consistent with the ocular evidence it may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses have spoken the truth, but this will be in special circumstances. On this point reliance is placed on the case reported in PLD 1976 SC 695.
20. ' The learned trial Judge has not given any reasons to show that from the medical evidence an inference can be drawn that the eye-witnesses have spoken the truth. On the contrary it has been noticed that the medical evidence is not consistent with the evidence of the three witnesses. All the three eyewitnesses have stated that appellant Bago fired at deceased Ahmed Khan which hit him.
21. It is nobody's case that any of the appellants fired at Ahmed Khan for the second time, yet the medical evidence shows there are two firearm injuries on the person of deceased Ahmed Khan.
22. One injury is on his right forearm and the other on his right leg. Similarly the witnesses have stated that the accused armed with hatchet gave blows with hatchet, this was in a plural form, yet there is only one hatchet injury on Bachal and twelve (12) incised wounds on deceased Din Muhammad. All this will go to show that the medical evidence was not consistent with the evidence of the eye- witnesses and therefore the medical evidence could not even furnish limited corroboration in this case.
23. ' I will now refer to the evidence of recovery and the reports of the experts-available on record.
24. P.W.2 Nabban is the Mashir in whose presence the place of incident was inspected by the police and in his presence the police had secured one crime empty from the place of Wardat under Mashirnama Exh.14-B. The crime empty was also sealed at the spot. P.W.7 Bagh Ali is the Mashir in whose presence the appellants and other accused were arrested and thereafter various recoveries were made by the police. On 10-7-1982 police arrested Ghulam Hussain alias Salahuddin and Kazi alias Qamaruddin in the presence of P.W. Bagh Ali under Mashirnama Ddi.19-A. On the same day accused Ibrahim was also arrested in the presence of the same Mashir under memo. Exh.19-D. On 16-7-1982 accused Ghulam Hussain, Kazi Qamaruddin and Ibrahim while in custody, led the police to the recovery of hatchets which were secured in the presence of same Mashir under separate Mashirnamas Exhs.19-B, C and E respectively. In the presence of same Mashir accused Nawab was also arrested under memo. Exh.19-F and he also led to the recovery of a hatchet which was secured under memo. Exh.19-G. On 12-7-1982 accused Bago was arrested in the presence of same Mashir under memo. Exh.19-H and he produced a gun which was secured under memo. Exh.19-I.
25. Police also arrested accused Manzoor in the presence of same Mashir under memo. Exh.19-J and he also produced a gun which was secured under memo. Exh.19-K.
26. ' From the above discussion it will appear that from accused Ghulam Hussain alias Salahuddin, Kazi alias Qamaruddin, Nawab and Ibrahim hatchets were recovered in the presence of Mashir P.W.7 Bagh Ali. From accused Bago and Manzoor police secured guns from each of them. All the recoveries were made in the presence of Mashirs Jumos and Bagh Ali by the investigating officer P.W. 10 Muhmmad Hassan. Out of the two Mashirs only P.W. Bagh Ali has been examined, as such the prosecution heavily relies on the evidence of P.W. Bagh Ali in order to prove tbe factum of recoveries from the appellants. Unfortunately P.W. Bagh Ali is also an interested witness and his evidence will also require corroboration. P.W. Bagh Ali is closely related to the deceased and so also the complainant party as admitted by him in his cross-examination relevant portion is being reproduced as under:-- "It is correct that deceased Ahmed was my sister's husband. It is correct to say that deceased Din Muhammad was my cousin. It is correct to say that P.W. Rahim is my real brother."
27. ' In view of the blood feud between the parties the evidence of the witnesses who are all relatives being interested witnesses, their evidence required to be corroborated from some independent source. The three appellants in this case are Khanan, Ghulam Hussain alias Salahuddin and Bago.
28. From appellant Khanan nothing has been recovered. In fact P.W. Bagh All and the investigating officer P.W. Muhammad Hassan are both silent even about the arrest of appellant Khanan. As such, so far as appellant Khanan is concerned, there is no evidence to show when he was arrested and nothing has been secured at his instance. The learned trial Judge erred in putting the question to appellant Khanan in his 342, Cr.P.C. Statement that on 10-7-1982 police recovered one blood- stained hatchet from his possession, when in fact nothing at all was recovered from appellant Khanan.
29. ' So far as appellant Ghulam Hussain alias Salahuddin is concerned, a hatchet has been recovered from him in the presence of P.W. Bagh Ali, but the same is not proved as P.W., Bagh Ali is an interested witness and there is no other independent evidence to corroborate his evidence.
30. Moreover as per Mashirnama of recovery Exh.19-B, the hatchet recovered from appellant Ghulam Hussain alias Salahuddin had a broken handle, but the chemical report Exh.23-A does not indicate receipt of a hatchet having a broken handle. Even otherwise the alleged recovery was made on 16- 7-1982 but it was received by the Chemical Examiner on 14-4-1983 that is, after about nine months of recovery. This delay has also not been explained by the prosecution. In these circumstances, the evidence of recovery cannot be used for the purpose of corroborating the ocular evidence so far as appellant Ghulam Hussain alias Salahuddin is concerned.
31. ' So far as appellant Bago is concerned, he was arrested on 12-7-1982 and on the same day he produced a S.B.B.L. (single-barrel gun) before the police which was secured under memo. Exh.19-I in the presence of P.W. Bagh Ali. As already mentioned, P.W. Bagh Ali is an interested witness, but so far as recovery of gun from appellant Bago is concerned, the evidence of P.W. Bagh Ali is corroborated by the evidence of P.W.2 Nabban and the recovery of one crime empty from the place of Wardat. According to P.W.2 Nabban police had secured one crime empty from the place of Wardat in his presence as mentioned in the memo. Of Wardat Exh.14-B. This crime empty and the gun recovered from the appellant Bago were sent to the ballistic expert who has clearly opined that the said crime empty was fired from the gun recovered from appellant Bago. As such the evidence of P.W. Bagh Ali is corroborated by the evidence of P.W.2 Nabban and also by the ballistic expert's report Exh.23-B, therefore, recovery of gun from appellant Bago stands satisfactorily proved. As such, the ocular evidence stands corroborated by the evidence of F P.W. Bagh Ali and also by the ballistic report so far as appellant Bago is concerned.
32. In the light of my above discussion, I am of the considered view that the conviction and sentence of appellant IChanan son of Usman Dahar is not sustainable, accordingly I allow his appeal (Cr.
33. Appeal No,112 of 1992) and set aside the conviction and sentence of appellant Khanan who is to be released forthwith if not required in any other case. So far as Criminal Appeal No,113 of 1992 is concerned, the conviction and sentence of appellant Bago son of Umar Dahar is maintained while the conviction and sentence of appellant Ghulam Hussain alias Salahuddin is hereby set aside and he is to be released forthwith if not required in any other case. Criminal Appeal No,113 of 1992 is partly allowed to the extent of appellant Ghulam Hussain alias Salahuddin son of Umar Dahar only.
34. ' By a short order, dated 6-12-1992 I had disposed of the two appeals, these are the reasons for the same.