1. MUHAMMAD AFZAL CHEEMA, J.---Hussain A.I appellant herein was one of the seven accused tried by the Additional Sessions Judge, Sheikhupura, for offences under section 148, 302/149, P. P. C. In relation to the murder of one Mehbub A.I. Only Hussain A.I and two others namely Yousaf and Qutab Hussain were convicted with an award of a sentence of transportation for life to each while their four co-accused were acquitted.
2. The facts of the case briefly are that on the day of occurrence, namely, 2.i-5-1969 at about 7 a.m., Mehbub A.I deceased, his brother Riaz, his cousin Bashir and his tenant Khushi Muhammad complainant had to attend the Court of a Magistrate in Sheikhupura in connection with security proceedings pend--ing against them and proceeded from their village on foot towards Sharqpur.
3. As they crossed the culvert in the area of village Arainwala the six assailants including three gunmen, namely, Hussain A.I appellant, Yousaf and Qutab with three others armed with dangs suddenly emerged from a cluster of trees behind a mound. The three gunmen fired at Mehbub A.I who was hit and fell to the ground whereupon Yousaf went closer and fired at his head from a point blank range killing him at the spot. The attack was allegedly the result of the conspiracy hatched by Gharib Alam the seventh accused who was in jail at that time in another case of murder. The case was registered on the statement of Khushi Muhammad at Police Station, Sadar Sheikhupura, on 23-5-1969 at 8 a.m. In view of the admitted background of political rivalry, blood-feuds and previous litigation between, the parties both the trial Judge as well as the learned Judges of High Court cam to the conclusion that the ocular testimony of five eye-witnesses, namely, Khushi Muhammad complainant (P. W. 14), a tenant of the deceased, Ahmed Khan (P. W. 15) uncle of the deceased, Riaz Ahmed (P. W. 17) brother of the deceased and Bashir Ahmad (P. W. 18) cousin of the deceased could not be relied upon to bring home the charge of murder to the accused unless it received independent corroboration from an unimpeachable source. Nawab Din, Kumhar (P. W. 16) who appeared before the Police the day after the occurrence and even otherwise, was a chance witness was however, disbelieved. On the view taken by the trial Judge such a corroboration was furnished by medical evidence against Hussain A.I appellant, Yousaf and Qutab, all the three of whom were armed with guns and had fired at the deceased hitting him in the back. The deceased was found to have sustained only two gunshot injuries in the back and according to the learned trial Judge one of the gunmen might have missed him. The specific role attributed to You, namely, that after the deceased had fallen to the ground on receipt of injuries, this accused went close to him and fired on his forehead from a point blank range was also found to have been confirmed by an injury on the forehead of the deceased with blackening of edges resulting in his instant-- aneous death. The admitted recovery of two '12-bore gun at the instance of Hussain A.I appellant of which gun P. 8 was his licensed gun and P. 9 the licensed gun of his son and acquitted co-accused Jamil, and the recovery of gun P. 12 at the instance of Qutab Hussain accused were also found to have lent further corroboration to the ocular testimony of interested-cum---hostile witnesses.
4. Since according to the prosecution version one of the two guns recovered at the instance of Hussain A.I appellant was used` by his brother Yousaf, the evidence of recoveries was also used against him, and consequently all the three gunmen including Hussain A.I appellant were convicted. Of the remaining four co-accused Gharib Alam the leader of the accused party and the political adversary of Mehbub A.I deceased was in jail at the relevant time on charge of murder and the allegation against him was confined only to that of conspiracy. The charge against him fell through for want of convincing evidence while Jamil, Ghulam Haider and Ahmad who were armed with dangs and confined themselves only to Lalkara were acquitted for want of corroboration of the ocular testimony in their case.
5. Criminal Appeal No. 69 of 1972 filed by Hussain A.I appellant and the two other convicts and Criminal Revision No. 97 of 1972 filed by Khushi Muhammad complainant for enhancement of sentence and award of compensation under section 544-A, Cr. P. C. Came up before a D. B of the Lahore High Court and were disposed of together, vide impugned judg--ment dated 27-5-1975 by which corroboration of ocular testimony was accepted only against Hussain A.I appellant whose conviction and sentence were maintained while it was discarded in respect of the other two convicts, namely, Yousaf and Qutab who were acquitted.
6. Leave was granted by this Court to examine the contention that the inscription "spherical ball" borne on the two empty cartridges recovered from the spot did not match with the pellets recovered from the body of the deceased during post-mortem examination and thus the two recoveries, namely, of the gun at the instance of Hussain A.I and the two empty cartridges were rendered conspicuously devoid of confirmatory value and therefore, on that account Hussain A.I appellant was also entitled to acquittal.
7. It would not be out of place to mention in this context that petition for special leave to appeal No. 253 of 1975 filed by Khushi Muhammad complainant against the acquittal of Yousaf and Qutab and the enhancement --of sentence of Hussain A.I appellant was dismissed by a Bench of this Court, vide order dated 16-4-1976.
8. The contentions raised before us by the learned counsel were mainly confined to the relevant circumstances of the recovery of the two crime empties from the spot. It was contended that although it was a case of day-light occurrence and the initial report was lodged by an eye-witness, yet the reference to the presence of two crime empties at the spot was conspicuous by its absence in the F. I. R. It was next submitted that none of the persons who were left at the spot to guard the dead body of the deceased and should presumably have been present at the time of the arrival of the police, was a witness to the recovery of the two crime empties whose presence was not even mentioned in the inquest report. As regards the credibility of the evidence of recovery, it was submitted that of the two witnesses of recovery from the public, Sardar was not produced while Ghulam Muhammad (P. W. 9) was the paternal uncle of the deceased. It was contended that all these circumstances taken together rendered the fact of recovery extremely doubtful. The next submission made in this context was that according to the Ballistic Expert's report, the two empty cartridges recovered at the spot were found to have been fired from gun P. 9 reco--vered at the instance of Hussain A.I appellant which was the licensed gun of his son Jamil and was allegedly wielded by Hussain A.I and yet the latter was not questioned on this important point during his examination under section 342, Cr. P. C. And therefore, no adverse inference could be drawn against him in this regard. The Blast but not the least contention urged in the regard was that although the empty cartridges recovered at the spot positively bore the inscription "spherical ball" indicating that they contained big size lead balls which were quite distinguishable from the pellets recovered from the dead body of the deceased, this unresolved and in fact irreconcilable discrepancy went a long way to show that the empties were planted by the Police.
9. The omission of any reference to the empties in the F. I. R. Or the inquest report if considered in isolation would not be very material and in fact could possibly be explained away on one hypothesis or the other. In that agitated state of mind the first informant might have missed to se or mention them. The Sub-Inspector was not questioned regarding the absence of any reference to the empties in the inquest report and if as ked might possibly have offered some explanation.
10. But the rather baffling aspect of the matter is the total irreconcilability between a "spherical ball" a explained by the Expert and the eight pellets recovered from the dead boo of which one was round and seven of irregular shape. In order to satisfy ourselves, we sent for the empties and the pellets recovered. Learned counsel for the appellant also produced before us a "spherical ball". It was conceded by the learned Assistant Advocate-General that only one "spherical ball" was contained in a cartridges and the pellets though equally round in shape were never described as such, the two being distinctly separate. Sheik Muhammad Din, Examiner Fire-Arms, Forensic Science Laboratory, Lahore, who appeared as P. W. 3 was elaborately questioned on this point an although according to him the two crime empties were found to have been fired from gun, Exh. P. 9 he positively stated in cross-examination that "In a 12-bore cartridge "spherical type theft will be only one shot, the shape of which will be round and its diameter will be internal diameter of the cartridge. Not one of the pellets Exh. P. 7/1-10 (recovered from the dead body) was a "spherical hall"." It is written m bold letters on crime empties Exhs. C. 1 and C. 2 that these are "spherical balls".
11. "He further stated that round pellets were contained either in S G or L G cartridge: According to him, there were six pellets in L G and eight or nine pellets in S G Cartridge. Thus apart from the fact that no incriminating question was put to Hussain A.I appellant regarding the use of his son's licensed gun by him the conflict between empties recovered at the spot and the pellets recovered from the dead body remains wholly unresolved and in fact the learned Assistant Advocate-General frankly conceded this position before us. He, however, contended that in this case of broad day-light occurrence in which the presence of the eye-witnesses at least three of whom, namely, Khushi Muhammad complainant, Riaz and Bashir had to appear alongwith Mehbub A.I deceased in the Court of a Magistrate at Sheikhupura in connection with security proceedings insistence on the corroboration of their testimony was wholly unjustified. Reliance was placed in this regard on Muhammad Nazir's case (PLD 1962 SC 269). I am afraid in the admitted background of political rivalry, blood-feuds and litigation between the parties coupled with the undenied connection of the P. Ws. With the deceased, the trial Court as well as the High Court rightly took the view that it was not safe to place implicit reliance on the ocular testimony in the absence of independent corroboration. The well-known ruling of this Court in Muhammad Nazir's case proceeds on wholly distinguishable facts.
12. Learned counsel for the appellant also tried to take advantage of this Court's order dated 16-4-1976 dismissing Khushi Muhammad's petition for special leave to appeal No. 253 of 1975 against the order of acquittal of Yousaf and Qutab and seeking enhancement of the sentence of Hussain A.I appellant. It was submitted that this order amounted to the confirmation of the view taken by the High Court. Although for reasons detailed earlier I am clearly of the view that the pellets recovered from the dead body remain--ed wholly unmatched with the crime empties recovered at the spot resulting in complete forfeiture of their evidentiary value there being no other corroboration of the ocular testimony against Hussain A.I appellant, yet with the utmost respect, I am not inclined to attach much importance to the above order of refusal to grant leave to appeal. If I may say so with respect, a specific allegation consistently brought by all the eye-witnesses against Yusuf having fired at the head of Mehbub A.I deceased from a point blank range after he fell injured, received full confirmation from medical evidence which revealed a wound of entrance on the forehead with blackening of edges as also one of exit and yet in spite of this glaring corroborative circumstance leave to appeal was refused even in his case. There is, however, no review petition pending against that order and the matter should, therefore, rest at that.
13. As a result of the foregoing discussion, the appeal of Hussain A.I appellant must also inevitably succeed. I accordingly allow the same. He shall be released from the Jail forthwith, if not required m any other case.
14. ANWARUL HAQ J.-I agree.
15. MUHAMMAD AKRAM, J-I agree.