' SAAD SAOOD JAN, J.---The appellants, Lal Bakhsh, Ghulam Mustafa and Ghulam Sarwar, real brothers, were convicted by the Additional Sessions Judge, Rahim Yar Khan of offences under section 302 (two counts) read with section 34, Pakistan Penal Code, for causing the death of two persons, namely, Gul Bashar and Almar Khan, and were sentenced to death under each count and also directed to pay fine and compensation. On appeal and reference, the High Court upheld their convictions on the charges under section 302, ibid. It reduced their substantive sentences to imprisonment for life but enhanced the amount of fine. They have come in appeal by special leave to this Court.
2. The occurrence took place in the early hours of 14-10-1987 (2-00 or 3-00 a.m.) in village Hakra at a distance of three kilometres from Police Station Khanpur. According to the prosecution the appellants attacked the two deceased, Gul Bahar and Almar Khan, as they were sleeping in front of the shop of Gulzar Ahmed (P.W.2). At the time of the attack Gulzar Ahmed (P.W.2) was sleeping inside his shop after latching the door. Lal Bakhsh and Ghulam Mustafa were armed with hatchets while Ghulam Sarwar was carrying a Chhuri. Both Gul Bahar and Aimar Khan died at the spot. Apart from Gulzar Ahmed (P.W.2) the occurrence was stated to have been witnessed by Khan Muhammad (P.W.3) who was attracted to the spot by the noise.
3. The motive for the occurrence was stated to be the intrigue which Gul Bahar was allegedly carrying on with the wife of Lal Bakhsh.
4. The occurrence was reported at Police Station, Sadar, Khanpur, on the following morning at 7-00 a.m. By Gulzar Ahmed (P.W.2).
5. The post-mortem examination of the two deceased was carried out by Dr. Muhammad Mansha (P.W.7). He found two incised wounds on Gul Bahar and three incised wounds on Aimar Khan. Gul Bahar had his neck almost severed. Aimar Khan died as a result of a head wound.
6. After their arrest the appellants were described to have assisted the police in recoverying their respective blood-stained weapons.
7. The appellants pleaded not guilty at the trial. They alleged that the occurrence was an unwitnessed one and that they had been falsely involved on account of suspicion.
8. The main evidence against the appellants was provided by Gulzar Ahmed (P.W.2) and Khan Muhammad (P.W.3). They claimed that they had seen the occurrence. They ascribed the fatal injuries found on the two deceased to the appellants. The trial Court as well as the High Court found their accounts substantially true and accordingly convicted the appellants.
9. Leave to appeal was granted to the appellants with the following observations: "The prosecution version is supported by two eye-witnesses namely Gulzar Ahmed complainant P.W.2 and Khan Muhammad P.W.3. The occurrence took place at 2-00 a.m. There is no mention of any light in the F.I.R. The complainant made material improvements at the trial and Khan Muhammad's house was at a distance of three Kanals from the place of occurrence.
In my view it is a fit case for the grant of leave to examine whether the principles of criminal administration of justice have been observed for recording the conviction."
10. As would be noticed the occurrence took place at night when the two deceased were sleeping in the open. Considering the number of injuries found on their bodies the attack on them could not have been lasted for more than a few minutes. Even though both eye-witnesses stated that they were related to the appellants and had no enmity with them, but, then taking into account the time and place of the occurrence and the number of injuries that the two deceased received a serious question arises for consideration whether the said witnesses had seen the occurrence as it was taking place and if so, they were in a position to identify the culprits. Khan Muhammad (P.W.3) admittedly lived at some distance from the scene of crime. Gulzar Ahmed (P.W.2) on his own admission was sleeping in the shop after latching the door. They must have taken a few minutes to reach to the noise created by the attack. It was not the case of the prosecution that the assailants had tarried at the spot after the occurrence. It is therefore somewhat unlikely that the so-called eye-witnesses had seen the appellants in the act of attacking the deceased. It was not the case of the prosecution that before leaving the scene of the crime the assailants had raised any Lalkara or done anything which might have given any indication about their identity. In the circumstances, to be on the safe side it would seem to be a fit case where corroboration for the ocular account should have been sought before the appellants were convicted on capital charges.
11. There is a significant feature of the case which may be noticed here. In the first information report Gulzar Ahmed (P.W.2) stated that it was he who was being suspected of carrying on an affair with the wife of Lal Bakhsh. If that were indeed so he should have been ordinarily the main target of attack by Lal Bakhsh and his brothers. On the other hand, the persons killed were the brother of Gulzar Ahmed (P.W.2) and a stranger even though according to his own showing he was present at the spot. To get over this apparent incongruity in its version the prosecution changed its story at the trial by alleging that the suspicion of carrying on an intrigue with the wife of Lal Bakhsh fell on Gul Bahar, deceased.
12. The trial Court was not convinced with regard to the credibility of the recovery evidence.
Accordingly, it rejected the same. However, the High Court found the same reliable enough to support the ocular testimony without stating the reason why it had elected to reverse the finding of the trial Court. We do not regard the reason given by the trial Court for rejecting the recovery C evidence as insubstantial; accordingly We are not prepared to place any reliance on it.
13. As the ocular testimony does not receive confirmation from any other reliable evidence on the record we are unable to support the convictions of the appellants as recorded by the Courts below.
We would accordingly set aside their convictions and sentences and acquit them of the charges against them. They shall be set at liberty forthwith if not required in any other case.