1. MUHAMMAD GUL, J.-This appeal by special leave is from the judgment of a Division Bench of the High Court of Sind & Baluchistan dated 30-8-1971, maintaining the convictions and sentences of the five appellants herein, under section 302 read with section 149 and under section 148 of the Pakistan Penal Code. Under the first count, three of them, namely, Haji Qadir Bakhsh and Kechi have been sentenced to death each and the other two namely, Reham Ali and Karam Ali, to transportation for life each, and on the second count, all the five appellants to one year's rigorous imprisonment each.
2. The parties are residents of village Hussain kalwar police Station Pano Aqil District Sukkur. The case for the prosecution is that on 29-9-1969, at about 6-30 a.m., Nur Muhammad and All Khan deceased went to plough and sow land of their cousin and also father-in-law of the former, Muhammad Bachel (P. W. 1). On the previous day, Nur Muhammad deceased, had requested Abdul Karim (P. W. 2) and Mendhro (P. W. 3) for a helping hand in sowing the field and they responded to the request. Nur Muhammad and Ali Khan were engaged in ploughing the field, and Abdul Karim and Mendhro in yoking their oxen when the five appellants appeared from a nearby jawar field. Of them, Haji had .12 bore DBBL gun, Qadir Bukhsh and Kochi a SBBL gun each, while Rehman Ali and Karam Ali had an axe each. Qadir Bakhsh appellant challenged Nur Muhammad and Ali Khan, Appellant Haji then fired at Nur Muhammad who was hit and be fell down. Ali Khan seeing the danger tried to run away towards Jawar field, but appellants Qadir Bakhsh and Kochi ran after him and fired at him. He was also hit and he fell down in the jawar field. Haji then fired another shot at Nur Muhammad when belay injured on the ground. As the appellants left the scene of occurrence they fired a few shots in the air. On the report of repeated gun fire and the cries of the victims; Muhammad Bachel who was going to Pano Aqil, and Bakhshan (P. W. 4) and one Mohabbat, bastened to the spot. The witnesses found both Ali Khan and Nur Muhammad dead. Abdul Karim and Mendhro who had seen the entire incident apprised Muhammad Bachel, of its details.
3. Leaving the witnesses and the two dead bodies at the spot, Muhammad Bachel went to lodge the F. I. R. At the Police Station Pano Aqil, which was done at 8-15 a.m. This was recorded by S. H. O. War Ali.(P. W. 10). The F. I. R. Also contains statement as to the motive for the crime. About 13/1S years prior to the incident Nur Muhammad deceased along with a number of others including Muhammad Bachel, P. W. Were tried for the murder of one Sanwan, a brother of the appellant Kochi, also a nephew of appellant Qadir Bakhsh and a cousin of the remaining three appellants, Nur Muhammad deceased and one Muhammad Daud were convicted and sentenced to transportation for life each in that case and others including Bachel were acquitted: Nur Muhammad deceased after serving out his sentence was release, about a year prior to the incident. After his release through the good offices of Sardar Muhammad Hassan Khan (P. W. 5), a Nekmard of the locality, a settlement was brought about between the parties by which Rs. 2800 were paid by Muhammad Bachel to Qadir Bakhsh appellant as compensation for the murder of Sanwan. About two days prior to the incident! Qadir Bakhsh and Kochi however demanded from Muhammad Bachel the hand of a woman in marriage in addition to the monotary compensation already paid. This was refused by the latter and Kechi and Qadir Nakhgh theatened retaliation.
4. Muhammad Bachel complained to the Nekmard about the unreasonable demand of Kechi and Qadir Bakhsh. The Nekmard sent for them, but found them adamant.
5. After recording the F. I. R. The S. H. O. War Ali repaired to the s66n6 of occurrence for investigation.
6. He sent the two dead bodies for post., mortem examination, He recovered from the wardat five empties, four lying near the dead body of Nur Muhammad and the fifth near the dead body of Ali khan. I-I6 also found the bullocks in yoke and gram-seed at the snot. On 30-9-1963 at the instance of Haji appellant, the investigating Officer recovered a DBBL .12 bore gun with its licence buried in a heap of rubbish under a date tree at a distance of two furlongs from Hussain Kalwar, vide Mashirnama Exh.19. This among others was witnessed by Abdullah Khan (P W. 8). The license was in the name of Haji appellant himself. On 3-10-19691 the Investigation Officer also recovered an unlicensed SBBL 12 bore gun at the instance of appellant Kechi, vide mashirnama Exh. 20 from a well in village Dilmurad. The empties and guns were sent to the Ballistics Expert Mukhtiar Ali mad (P.
7. W. 11). On examination he found that three .12 bore crime empties marked C. I, C. 3 and C. 4 were fired from .12 bore SBBL gun which was recovered at the instance of Kechi. The remaining two empties marked C. 2 and C. 5 Were found not to have been fired from any of the two recovered guns.
8. According to the autopsy, there were five gun shot entrance injuries and one exit injury on the person of Nur Muhammad deceased. Of these, injury No. 2 consisted of 11 ganshot wounds, and injuries No. 2, 4 and 5 of two gunshot wounds each, Injuries I to 3 in the opinion of the doctor were individually and collectively sufficient in the ordinary course of nature to cause death.
9. The autopsy on the person of Ali Khan revealed one gunshot injury consisting of sit entrance wounds on the left axilla and tine exit wound, besides a grazing wound on the back of the left arm.
10. Under the first injury, left 7th and 8th ribs and the right 9th rib were fractured. Pleurae was holed and both lungs were slightly congested. The left ventricle of the heart was also holed. In the opinion of the doctor death was due to shock and haemorrhage due to injury No. 1, which was sufficient in the ordinary course of nature to cause death. In the opinion of the doctor post-mortem examination was performed within 18 hours of the injuries though he conceded a margin of four hours in his estimate.
11. Both the trial Court and the High Court believed the evidence of the two eye-witnesses, Abdul Karim and Mendhro and the confirmatory evidence of Muhammad Bachel and Bakhshan who reached the spot immediately after the incident. The latter had also seen the five appellants decamping from the scene of the incident' with their respective weapons. The two Courts also relied upon the medical evidence, the evidence relating to the recovery of two guns vide mashirnamas Exhs. 19 and 20 and the matching of three crime empties with the gun recovered at the instance of Kechi which in their opinion furnished sufficient corroboration of was ocular evidence. The evidence about the motive for the crime was also accepted.
12. Leave to appeal was granted because certain features in the medical and other corroborative evidence relied upon by the Courts below required further scrutiny to see whether the convictions of the five appellants were consistent with the safe administration of justice?
13. Mr. Muhammad Hayat Junejo learned counsel for the appellants argued that the two Courts below were wrong in treating the two eye-witnesses in the case as independent. He submitted that the very fact that the witnesses responded to the Wangar of Nur Muhammad showed that they were partisan. Learned counsel also criticised reliance by the two Courts below on evidence relating to the recovery of the two guns as corroborating the ocular evidence to furnish a safe basis for the conviction of the appellants. The further argument wag that the cases of the five appellants were distinguishable from each other, which was completely overlooked. Finally, it was also submitted that the ocular evidence was contradicted by the medical evidence, in that, according to the statement of the doctor, post-mortem examination was per--formed about 18 hours after the death of the two deceased which according to the learned counsel had the effect of relegating the incident to have taken place between 9 p.m. And 2 a.m. On the night between the 28th and 29th September 1969, and not at day-break on 29-9-1969, as alleged by the pro--secution. From this the inference dawn was that it was an unwitnessed crime and no reliance whatever could be placed on the two eye-witnesses in the case.
14. Taking the last limb of the argument first, Dr. Nisar Ahmad who con--ducted the post-mortem examination on the dead bodies, stated in his evidence that the stomach of Ali Khan was empty.
15. This was not possible if he had been killed between 9 p. m. To 2 a.m. In the next morning. In that event stomach should have had contained undigested or semi-digested food. The fact that the stomach was empty tends to support the prosecution version that incident had taken place at about day-break, when the deceased had not yet taken breakfast.
16. As to the credibility of the two eye-witnesses, it is true that in the judg--ments of both the trial Court and the High Court, they are referred to as independent witnesses in the sense of not being related to the deceased or the informant. But it is clear enough from the two judgments that learned Judges did not entirely base their conclusions on the direct evidence of the two eye- witnesses rather reliance was equally placed upon recovery of the two guns and the matching of the three crime empties with gun recovered at the instance of Kechi. And this was perfectly understandable against the background of enmity between the parties going back to 12 years' before the present incident. Indeed, in that context one has to be on guard against possible false implication, or at least a deliberate exaggerated version of the incident, and the evidence produced in corroboration of direct evidence assumes particular importance. Therefore, it becomes necessary to look for corroborative evidence against each appellant apart from the direct evidence of the two eye-witnesses implicating all the five of them. And in that respect there is substance in the argument of learned counsel for the appellants. .
17. This at once makes the case of Rehman Ali and Karam Ali. Both of whom were allegedly armed with hatchets, distinguishable from those of the other three who were armed with guns. The outstanding fact operating in favour of these two appellants is, that no incised injury caused by a sharp-edged weapon was discovered on the bodies of the deceased. Even the two eye-witnesses did not assign any definite part to them. The hatchets were not recovered either. Therefore, their participation in the transaction becomes doubtful. We must however, enter a caveat. We must not be understood as laying down that for the purpose of their conviction for vicarious criminal liability, an overt act, beyond their physical presence with the relevant knowledge is essential.
18. The case against Haji and Qadir Bakhsh is not altogether free from doubt either, although, the eye- witnesses assign to each of them definite Parts. As against Haji, the prosecution relied strongly on the recovery of his .12 bore DBBL gun along with its licence at his pointing out from under heap of rubbish. It appears incredible that he should have taken his licensed gun along with its licence for burial under a heap of rubbish to escape detection or punishment. It might have been accepted if the burial had been of the gun only. But to bury it along with its licence makes the exercise spurious. Add to it the fact that none of the five crime empties recovered from the spot matched this gun.
19. As against Qadir Bakhsh, the prosecution does not rely on any corro--borative evidence. On a parity of reasoning his participation in the commission of offence is also not free from doubt.
20. The case against Kechi appellant stands on a different footing besides being implicated by the two eye-witnesses, there is the evidence of recovery of gun at his instance vide mashirnama Exh. 20.
21. And the most significant piece of evidence against him is that the three crime empties recovered from' the spot according to Ballistics Expert were fired from this gun. The ocular evidence connecting him with gunshot injuries to Ali Khan coupled with the evidence relating to matching of crime empties with the gun recovered at his instance, establishes the case against him beyond doubt.
22. On the above analysis we hold that the case against Haji Bakhsh Rehman Ali and Karam Ali is not proved beyond reasonable doubt, and we accept their appeal and set aside their convictions and sentences. They shall be set at liberty unless they are required to be detained in any other case.
23. The appeal of Kechi is however, dismissed subject to the modification that though his death sentence is maintained, his conviction is altered to that under section 302 read with section 34 P. P.
24. C., for the murder of the two deceased. The evidence of Ballistic Expert establishes it positively that in the course of the transaction five shots were fired from at least two guns, though the identity of the person roe persons who fired from the other gun or as the case may be guns is not satisfactorily established. But that would slot avert the application of section 34, P. P. C. On that view of the matter. Kechi's conviction and sentence under section 148 P. P. C. Cannot be maintained and is set aside.