' MUHAMMAD RAW) TARAR, J.---This appeal by Niaz alias Niazoo and Muhammad Anwar convicts with the leave of this Court is direced against the judgment of a learned Division Bench of the Lahore High Court dated 6-5-1990 whereby death sentence awarded to them by the trial Court under section 302/34, P.P.C. Was altered to imprisonment for life and with this modification their appeal was dismissed. The leave grant order reads as under:-- "The two petitioners alongwith Karim Bakhsh were tried under sections 302/34 and 109, P.P.C., by the Sessions Judge, Rahimyar Khan, for the murder of Subhan Ali, who vide his judgment dated 23-4- 1989 sentenced the petitioners to death and to pay a fine of Rs,5,000 each, or in default to suffer further R.I. For one year each. Karim Bakhsh accused of conspiracy was however, acquitted. On appeal, the High Court vide judgment dated 6-5-1990 under challeng in this petition for leave to appeal, altered the sentences of death awarded to the petitioners into life imprisonment.
2. The occurrence took place on 7-12-1984 at 3-00 p.m. In the area of village Sinawar, at a distance of 15 miles from the Police Station Saddar, Sadiqabad, and the F.I.R. Was lodged by Khawand Bakhsh (P.W.9), who is brother-in-law of the deceased, within 2 hours of the occurrence. The prosecution case is that on the date of occurrence the deceased alongwith the complainant and Usman (P.W.10), while in the area of village Sinawar, on his way to his land in Chak No,163/P, was shot dead by the petitioners, who were sitting in ambush. The motive was that about 7 years ago the deceased alongwith 2 others had committed the murder of Muhammad Hanif son of Karim Bakhsh. The petitioners are nephews of the latter and in conspiracy with him they assassinated Subhan. The petitioners in their statements under section 342, Cr.P.C., denied the charge.
3. The trial Court founded the conviction on the ocular evidence of Khawand Bakhsh and Usman P.Ws., the medical evidence of Dr. Abdul Wahab and the recovery of guns (P.8 and P.9) with which the empty cartridges recovered from the place of occurrence tallied.
4. The High Court doubted the recoveries of the empties from the spot and guns from the petitioners, but considered the ocular evidence which found corroboration from the evidence of motive and medical evidence, as sufficient to establish the petitioners' guilt. As in the opinion of the learned Judges in the High Court, the possibility that the petitioners, who were below 26, acted under influence of their maternal-uncle, Karim Bakhsh, could not be ruled out, they were awarded life imprisonment.
5. The learned counsel has taken us through the evidence of the two eyewitnesses to show that they are closely related to the deceased and nourished a grudge against the petitioners. It is in the statement of Khawand Bakhsh that there was enmity between the complainant side and the petitioner's party and that Ismail a relative of Karim Bakhsh (acquitted accused) got a case of murderous assault registered against him (the witness) which was then pending. The police also initiated proceedings under section 107, Cr.P.C. Against him and the accused party. It was contended that after the rejection of the evidence of recoveries it was not safe to rest the conviction on the discrepant evidence of the two eye-witnesses, who are closely related to the deceased and manifestly inimical towards the petitioners.
Leave to appeal is granted to examine the issue as to whether, in the circumstances of the case, the petitioners' conviction is in conformity with the principles governing the safe dispensation of justice in criminal cases."
2. Learned counsel for the appellants has reiterated the submissions made at the leave stage. The learned State Counsel on the other hand defended the impugned judgment for the reasons stated therein.
3. Admittedly there was background of enmity between the parties and they had strained relations prior to the present occurrence. About 10/11 years before the occurrence Muhammad Hanif son of acquitted accused Karim Bakhsh was murdered for which Subhan deceased and two others were prosecuted, convicted by the trial Court to suffer life imprisonment and were ultimately acquitted in appeal. The appellants are cousins inter se and nephews of aforesaid Karim Bakhsh. Khawand Bakhsh complainant admitted that there was enmity between them (the complainant party and accused persons) after the murder of Hanif and they were not on visiting or speaking terms with the accused party. He further admitted that after the acquittal of Subhan deceased security proceedings were initiated by the police against both the parties and that one Muhammad Ismail, a relative of the acquitted accused Karim Bakhsh, got a case for murderous assault registered against him and others which was pending. Khawand Bakhsh complainant is the brother of the widow of Subhan deceased while Usman P.W. Is the son of the sister of the deceased. It, therefore, stood fully established that there was severe enmity between the parties. Enmity however cuts both ways; it may be the reason for the assault and at the same time it may induce the complainant party to falsely implicate their enemies. Both the eye-witnesses being highly interested, their evidence, in order to be accepted, would require corroboration from an independent and unimpeachable source.
4. The learned Judges of the High Court discarded the evidence regarding recoveries for valid reasons which need not be recapitulated. They were however of the view that ocular account was corroborated by the motive and medical evidence.
' As regards the motive we have already observed that previous enmity could also be pleaded as a motive for false implication. In the present case it is in evidence that three co-accused of Subhan deceased in the murder case of Hanif were living in the same village for the last 7 years after their acquittal in the said case. There is nothing on the record to show why the accused waited for such a long time and particularly chose the deceased for taking the D revenge. In the circumstances of the present case the motive alleged by the prosecution, therefore, lends no corroboration to the ocular account.
The medical evidence also does not provide the requisite E corroboration. Injury No,1 on the abdomen was attributed to Niaz appellant. It consisted of 6 entry wounds, out of which one was of 1 inch diameter and remaining were of 1/3" diameter. Remaining two entry wounds on right cheek and right side of face were attributed to both the appellants. These were of the same dimension i.e, 1 inch diameter and could well be caused by one assailant/weapon. The medical evidence, therefore, does not help even in determining the number of assailants/weapons used for causing injuries found on the dead body.
5. According to the prosecution the deceased was attacked while on way to Chak No,236-P (not Chak No,163-P as mentioned in the leave order). In examination-in-chief Khawand Bakhsh complainant stated that he also owned land in Chak No,236-P and they (the witnesses and the deceased) were proceeding to that Chak "in order to see and look after my lands" but in cross- examination he had to admit that he owned land only in Chak No,163-P and had no land in Chak No,236-P. Likewise Usman P.W. Whose house was three miles away from the place of occurrence, stated: "I alongwith Khawand Bakhsh P.W. And Subhan deceased were proceeding from Chak No, 163-P to Chak No,236-P in order to see our lands" but in cross-examination he had to admit that only Subhan deceased had land in that Chak. This witness categorically stated that he did not come to the hospital at all and remained at the spot alongwith Madad Khan P.W. Strangely enough he also did not know "when the dead body was brought in the village" nor he offered `Namaz-e- Jinaza' of the deceased who was his real maternal-uncle. However, according to his counterpart Khawand Bakhsh he alongwith Madad Khan etc. Was with him in the hospital and all of them left with the dead body at 3-00 p.m.
6. After examining the evidence we find that not only the statements of the highly interested witnesses go uncorroborated but even their presence at the spot also remains unexplained.
For the foregoing reasons the prosecution has not been able to prove its case against the appellants beyond a reasonable doubt and they are entitled G to acquittal. Consequently we allow the appeal, set aside the conviction and sentence of the appellants and acquit them of the charge.
They shall be set at liberty forthwith if not required to be detained in any other case.