' SH. IJAZ NISAR, J.---This appeal by leave of the Court is directed against the judgment, dated 17-1- 1993, passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Criminal Appeal No,103 of 1991/BWP and Murder Reference No,36 of 1991/BWP.
2. The facts, in brief, are that on 8-6-1990, at 4.00 p.m. a case under section 302/307/452/34, P.P.C.
Was registered with Police Station Qaimpur, Bahawalpur, at the behest of Pehlwan complainant P.W.8 for the murder of Aqil Muhammad deceased. On the day of-occurrence, at about 1.30 p.m.
Muhammad Irshad and Muhammad Aslam, the appellants herein, alongwith Imam Bukhsh co- accused, father of the Muhammad Irshad appellant, and Muhammad Akram came to the house of Muhammad Mumtaz and tried to drag out his wife Mst. Zahoor Mai P.W.9. She raised alaram which attracted a number of persons including Muhammad Aqil deceased, his brother Pehlwan (P.W.8), Muhammad Nawaz (P.W.10) and Muhammad Riaz (P.W.11). They tried to rescue Mst. Zahoor Mai and in the process of a scuffle took place between the parties. Muhammad Akram gave a jack blow on the head of Pehlwan P W. And Imam Bakhsh threw a brick on the head of Muhammad Raiz P.W. The appellants then left for their houses. But, shortly afterwards they returned in the company of Imam Bukhsh and Muhammad Akram armed with guns. They opened fire and killed Muhammad Aqil deceased. As a result of firing and hurling of brick-bats a number of persons were hurt. The occurrence was reported to the police by Pehlwan P.W.
3. The motive of the offence was that about 4 years prior to the occurrence Muhammad Iqbal son of Imam Bakhsh had divorced Mst. Zahoor Mai, After about 2 years she contracted marriage with Mumtaz, brother of Muhammad Nawaz and Riaz P. Ws, for which the appellants bore grudge and also because Mumtaz had got Imam Bakhsh and others arrested for the murder of his father.
4. The learned Additional Sessions Judge, Bahawalpur, vide judgment, dated 21-10-1991, held that the prosecution had proved its case against the appellants. They were, accordingly, convicted under section 302/34, P.P.C. And sentenced to death with a fine of R.15,000 plus compensation of Rs,25,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The appellants were also convicted under section 323, P.P.C. And sentenced to one year's imprisonment.
5. On appeal, filed by the appellant, a Division Bench of the Lahore High Court, vide judgment, dated 17-1-1993, maintained their conviction under section 302, P, P.C. But altered their death sentence to the imprisonment for life, plus fine.
6. Leave to appeal was granted to the appellants by this Court vide order, dated 4-5-1994; the relevant portion whereof is re-produced below:- "In support of this petition it is contended that the eye-witnesses were inimical and for that reason their statements should, not have been accepted without independent corroboration. Apart from that there is conflict between the medical evidence and the version given by the eyewitnesses. In this context, it is pointed out that the injuries found on the body of the deceased had blackening around. This observation by the doctor was at variance with version of the eye-witnesses, for, according to them the deceased had been fired at from a considerable distance.
' The contentions raised in support of this petition need examination. Leave to appeal is granted."
7. Learned counsel for the appellants vehemently argued that the learned Judges of the High Court did not appreciate the evidence on record and the attending circumstances in true perspective resulting in the miscarriage of justice, necessitating a reappraisal of evidence by this Court. He further argued that the facts and circumstances of the case are consistent with the probability, that on seeing the complainant party approaching their Haveli with aggressive design, the appellants became apprehensive and acted in self-defence, He next argued that as per post- mortem examination, all the injuries on the person of the deceased had "blackened margins" showing that firing was made very close range which belies the ocular version.
8. The learned High Court did not believe the motive as set up by the prosecution and observed that the genesis of the fight leading to the murder of Aqil Muhammad could not be spelt out from the material brought on record. The recoveries were also held to be of no consequence as the crime empties recovered from the spot did not match with the guns of the accused and further that it is not understandable what grudge the appellants could have against the complainant- party over the marriage of Mst. Zahoor Mai P.W. With Mumtaz after she had been divorced by Muhammad Iqbal, brother of Muhammad Irshad appellant, 4 years prior to the occurrence, and that too after the death of Muhammad Iqbal.
Mumtaz, who is a brother of Nawaz and Riaz P.Ws. Had ever earlier got a case registered under section 148/452/506/149, P.P.C. Against Irshad and Imam Bakhsh appellants etc., for committing house trespass and causing injuries to Riaz P.W. The said case was found to be false during investigation, as a result of which Mumtaz aforementioned was proceeded against under section 182, P.P.C. And on his confession was convicted on 26-8-1990. Furthermore, about a month before the occurrence Mst. Zahoor Mai, Muhammad Nawaz and Muhammad Riaz P.Ws. Had instituted a civil suit against Muhammad Irshad, Muhammad Again, Muhammad Akram and Imam Bakhsh appellants etc., regarding a shop, which, too, ended in the dismissal of the suit for want of proof. It is evident from these circumstances that the complainant-party was inimically disposed towards the appellant. TO eye- witnesses examined by the prosecution are closely related to one and other and the rule of prudence required that there should have been some independent corroboration available for placing implicit reliance on their testimony but the same is' lacking and it would be highly unsafe to act upon the uncorroborated testimony of eye-witnesses examined by the prosecution, particularly when it is full of material contradictions. It is in conflict' with the medical evidence, also with regard to the distance from which the deceased and the injured P.Ws. Were reportedly fired at. The deceased and the eye-witnesses were not persons of good antecedents as apparent from record, showing them involved in several criminal cases.
9. According to the appellants, the motive set up by he prosecution that they wanted to abduct Mst. Zahoor Mai is falsified by her father Haji Allah Ditta D.W.1 and her brother Dur Muhammad.
D.W.2. They supported the version of the appellants that the fight between the parties took place on account of a dispute over the widening of a road between Allah Wasaya and his brother Allah Jawaya one side and Pehlwan complainant, his brother Aqil deceased, Riaz and Nawaz P.Ws. Etc. On the other side and that Aqil had died in the said incident. There appears to be no reason as to why the father and real brother of Mst. Zahoor Mai should depose falsely against her interest, particularly when she was married in that family. They could not be expected to have a soft corner for the appellants, nor could the appellants take the risk examining them in their defence if they would not have been sure that they would speak the truth.
10. As already stated above, the learned High Court had disbelieved the motive set up by the prosecution that Aqil deceased was killed when he put up resistance to the attempt of abduction of Mst. Zahoor Mai. It is a settled proposition of law that evidence on the capital charge must come from an unimpeachable source or be supported by strong circumstances that -might remove inherent doubt attaching to the evidence of the interested and partisan witnesses. In the instant case Muhammad Riaz P.W. Was disbelieved by the Courts below in respect of his own injuries resulting in the acquittal of Imam Bakhsh. In this view of the matter it would be highly unsafe to accept his . Testimony against Muhammad Irshad and Muhammad Aslam appellants on a capital charge. They were disbelieved on the point of motive by the learned High Court and in the circumstances narrated above we consider it unsafe to act upon their uncorroborated testimony qua the appellants.
Accordingly, giving Muhammad Irshad and Muhammad Aslam appellants the benefit of doubt we accept their appeal and acquit them of the charges. They shall be released forthwith provided they are not required in any other case.
' These are the reasons for our short order, dated 11-2-1999.