1. RAJA AFRASIAB KHAN, J.---On 3rd of December, 1987 at 9-50 a.m., a case under section 302/307/148/149 P.P.C. Was registered on the statement of Muhammad Azim with Police Station Ugoki, District Sialkot against Zahoor Elahi alias Joori, Muhammad Younas alias Bhola, Muhammad Majid alias Majid (hereinafter called without their assumed names), Sultan AhrUad, Muhammad Hanif, Muhammad Bashir and Karam Bakhsh for the murder of Muhammad Amin and making murderous assault on Muhammad Azim (complainant). Muhammad Amin, a brother of Muhammad Azim contested local bodies election from Camp Garha, Halqa No.25 on 30th of November 1987. He defeated Muhammad Bashir and Mehar Muhammad Munir in the said election.
2. Muhammad Bashir, Sultan Gujjar, Karim Bakhsh and Muhammad Hanif had said the and again that they would not leave Muhammad Amin alive because he had defeated them in the election. On the day of incident at 7-30 a.m., Muhammad Azim was standing near the first Gate just in front of Election Hall. Bashir Ahmad and Noor Ahmad were standing near their vehicle. Muhammad Amin had hardly come out after taking bath from a public bath when, suddenly, Zahoor Elahi armed with 12-bore gun while Muhammad Younas, Muhammad Majid, Muhammad Bashir, Muhammad Hanif and Sultan carrying revolvers emerged from the Election Camp. Karim Bakhsh was empty -- handed. They shouted and opened attack. Zahoor Elahi fired which hit Muhammad Amin on his back. He fell down. Muhammad Younas fired which injured .The left shoulder of complainant.
3. Muhammad Majjd fired at the complainant which missed. Sultan; Muhammad Bashir and Muhammad Hanif had indiscriminately been firing. On alarm, they ran away with their weapons.
4. Muhammad Azim and Muhammad Amin were taken to hospital but the latter died on his way. In support of its case, prosecution produced Syed Sajjad Ali P.W.1, Ashiq Ali P.W.2, Muhammad Ashraf P.W.3, Nek Alam PWA, Talib Hussain P.W.5, Ahmad Din P.W.6, Akhtar Naqash Draftsman P.W.7, Muhammad Iqbal P.W.8, Muhammad Yousaf P.W.9, Muhammad Azim P.W.10, Bashir Ahmad P.W.11, Abdul Hamid P.W.12 and Fazal Hussain P.W.13. The accused denied the allegations against them in their statements under section 342, Cr.P.C. They pleaded their innocence but did not lead any evidence in their defence. On 21-3-1989, learned Sessions Judge, Sialkot convicted Zahoor Elahi under section 302, P.P.C. For the murder of Muhammad Amin and sentenced him to death and fine of Rs.10,000 or in default, to suffer six months' R.I. The legal heirs of the deceased were ordered to be paid the fine as compensation, in case, it was recovered. Muhammad Younas was convicted under section 324, P.P.C. For causing injuries to Muhammad Azim and sentenced to undergo R.I for to years and fine of Rs.5,000 or in default to undergo R.I for three months. It was also ordered that fine, if recovered, would be paid to Muhammad Azim as compensation, Learned Judge, nevertheless, acquitted Muhammad Majid, Sultan Ahmad, Muhammad Hanif, Muhammad Bashir and Karim Bakhsh on the same set of evidence by giving diem-benefit of doubt. On appeal and reference, a Division Bench of Lahore High Court maintained their conviction but did not confirm the death sentence of Zahoor Elahi on the plea that he acted to defend the honour of his father. Leave to appeal was granted to the convict With the following order:----- "Seven persons including the petitioners were tried by the Sessions Judge at Sialkot on charges under sections 302 and 307 read with sections 149 and 148 of the Pakistan Penal Code for causing the death of Muhammad Amin, deceased, making murderous assault upon his brother Muhammad Azim and rioting. The learned Additional Sessions Judge acquitted five of the accused but convicted Zahoor Elahi alias Joori and Muhammad Younas alias Bhola. It may be mentioned that Zahoor Elahi alias Joori was convicted only under section 302 and Muhammad Younas alias Bhola was convicted only under section 324. Zahoor Elahi alias Joori was sentenced to death while Muhammad Younas alias Bhola was directed to suffer rigorous imprisonment for to years. Both convicts filed a joint appeal before the High Court. The trial Court also made a reference to the High Court for the confirmation of the sentence of death. A Division Bench of the High Court upheld the conviction of both petitioners, but reduced the sentence of Zahoor Elahi alias Joori to imprisonment for life. The petitioners seek leave to appeal from this Court."
5. The occurrence took place on 3-12-1987 at 7-30 a.m. It was alleged by the prosecution that at the relevant the the deceased had come out of the local Hamam after taking a bath. His brother Muhammad Azim was also present in the locality. Suddenly; the petitioners and the co-accused came there. Zahoor Elahi alias Joori was holding a shotgun while the others had revolvers with them. On seeing the deceased Zahoor Elahi alias Joori raised a Lalkara and immediately thereafter fired at the deceased. The deceased was hit. Muhammad Younas fired with his revolver on Muhammad Azim, the other co-accused to indulged in some ineffective firing. After the occurrence the deceased was taken to the hospital at Sialkot but he died on the way. The occurrence was reported at Police Station Agoki by Muhammad Azim at 9-50 a.m.
6. As regards the motive, it was stated by the prosecution that in the election held to the local council on 30-11-1987 the deceased was a candidate. He was opposed by Muhammad Bashir belonging to the accused party. The deceased won the election whereupon the accused party threatened to kill him.
7. The case of the prosecution against the petitioners rested entirely upon the ocular testimony furnished by to eye-witnesses, namely, Muhammad Azim (P.W.10) and Bashir Ahmad (P.W.11). The trial Court as well as the High Court accepted their testimony as substantially true in so far as the petitioners were concerned but rejected the same with regard to the other co-accused.
8. In support of this petition it is inter alia contended that the eye--witnesses produced by the prosecution were entirely unreliable and in this context reference has been made to the following observations of the learned Sessions Judge:-- "This confirms my apprehension that in this case also, the ugly and unhealthy practice of associating some innocent persons has been followed. I, therefore, find that the case of Muhammad Majid alias Majid, Sultan Ahmad, Muhammad Hanif, Muhammad Bashir and Karim Bakhsh alias Bashani is not free from reasonable doubt. Karim Bakhsh is an old man of about 80 years and it is not likely that he would participate in this blood-shed with empty hand. Likewise, Muhammad Bashir accused was injured and his injury was not explained though he stated that he suffered the same during the occurrence. He remained in hospital and has practically become almost handicapped as he was standing and moving about in the Court with crutches.
9. The High Court did not disagree with these observations 1n the circumstances, the ocular account was riot to be accepted without independent corroboration. As none was available the petitioners' conviction could not be supported.
10. The contentions raised in support of this petition need examination, Leave is granted."
11. Learned counsel submits that Muhammad Azim and Bashir Ahmad P.Ws. Were not believed by the trial Court while acquitting Muhammad Majid and 4 others and as such, Zahoor Elahi and Muhammad Younas could not be convicted on the said evidence unless it was corroborated by evidence of unimpeachable character. It is added that case of appellants was at par with that of their acquitted co-accused. There is force in the argument of learned counsel. Muhammad Azim, P.W. Is the brother of Muhammad Amin, deceased while Bashir Ahmad is also related to him. The enmity was admitted because both the parties participated in the election held in the year 1987 'and they had thus developed ill-will against each other. Muhammad Amin (deceased) defeated his rival candidates. It is, therefore, difficult to believe Muhammad Azim and Bashir Ahmad P.Ws.
12. Unless they were corroborated by some independent evidence which was missing. It may by noticed that benefit of doubt was given to five acquitted accused under similar circumstances. No cogent reasons could be given by the Courts below in order to convict the appellants in the same situation. Learned counsel falls to distinguish the case of the appellants from that of the acquitted accused. Prosecution story appeared to be indivisible because all the accused had come armed to finish the complainant party in execution of their common object. The eye-witnesses are interested being related to the deceased. It is well settled that a related/interested witness cannot corroborate another biased partisan witness. Bashir Ahmad P.W. Was said to be independent and as such, was held to corroborate Muhammad Azim P.W. The following observation of the High Court would negate its own reason and support that of the appellants that Bashir Ahmad P.W. Was also related to the deceased:-- "The second eye-witness, i.e. Bashir Ahmad (P.W.11) who corroborated the testimony of Muhammad Azim gave cogent reasons for being present at the spot. He made a confidence inspiring statement free of bias or malice. Although he was related to the deceased through inter- marriages, but the relationship was not that close for which he would have been prepared to make false charges against the appellants. "
13. This being so, relationship of Bashir Ahmad with the deceased could not be disputed. We hold that there was no evidence available to corroborate the interested testimony of Muhammad Azim and Bashir Ahmad. Their evidence, in our view, is deficient to convict the appellants in this case of capital charge for safe administration of criminal justice. It may be pertinent to notice that the State or the complainant did not challenge the validity of judgment of acquittal of Muhammad Majid and 4 others on the same set of witnesses. It had, accordingly, attained finality qua acquitted accused. If those accused were acquitted on the basis of this evidence under discussion, it would not be safe to convict the appellants on the same evidence. In these circumstances, benefit of doubt shall also be given to the appellants to meet the ends of justice. They are acquitted of the charge and shall be released forthwith provided, of course, they are not needed is some other criminal case. The appeal succeeds and is allowed.