' JAVID IQBAL, J.-Khan Mir Khan aged 37 years, Piran Khan, aged 60 years and Bahadur Khan, aged 50 years, sons of Fateh Khan, Khalas Khan son of Alam Khan, aged 29 years, Sultan Khan, aged 25 years and Khan Mir, aged 36 years, sons of Saadullah Khan and Saifullah Khan, aged 40 years and Hayat Khan, aged 45 years, sons all inter-related, have been convicted under section 302/149, P. P.
C. For the murder of Isab Khan, their relative and were sentenced as follows : Sultan Khan was sentenced to death. He was also convicted under section 307/149, P. P. C. And sentenced to seven years R. I. For murderous assault on Mst. Alam Kbatoon (P. W. 12), wife of Haq Nawaz (P. W. 11), brother of the deceased. He was also convicted under section 148, P. P. C., and sentenced to two years' R. I. With a fine of Rs, 1,000 under section 544-A, Cr. P. C., to be given as compensation to the deceased and to Mst. Alam Khatoon P. W. In equal shares. All the others were sentenced to imprisonment for life. They were also sentenced to seven years' R. I. Each under section 307/ I 49, P.
P. C , for murderous assault on Mst. Alam Khatoon P. W., two years' R. I. Each under section 148, P. P.
C., and a fine of Rs, 1,000 each under section 544-A, Cr. P. C. To be paid as compensation to the heirs of the deceased and Mst. Alam Khatoon P. W. In equal shares. Their two co-accused, namely, Aslam Khan son of Piran Khan, aged 18 years, and Rustam Khan, son of Hayat Khan, aged 17 years, were acquitted. The judgment in this case dated the 24th of April, 1973, has been passed by the Sessions Judge, Mianwali. The appeal of the convicts as well as reference for the confirmation of death sentence awarded to Sultan Khan are being taken up and disposed of together by this judgment along with Criminal Revision No, 773 of 1974 filed by Haq Nawaz P. W. Complainant praying for enhancement of the sentence of -the convicts other than Sultan Khan to death.
2. The occurrence took place at 8-00 a. m. On the 9th of December, 1970 in village Wandha Dhedianwala, at a distance of 31i miles from Police Station Musa Khail, District Mianwali. F. I. R. (Exh.
P. A) was lodged by Haq Nawaz (P. W. 11), brother of the deceased as well as an eye-witness at 1-15 p. m. On the same day and it was recorded by Ghulam Qadir S. I. (P. W. 15) at Police Station Musa Khail.
3. The motive for crime as set up by the prosecution is long-standing bitter enmity and blood feuds between the complainant and the accused. Parties. However, no immediate cause of occurrence is disclosed or suggested in the record.
4. The prosecution has produced four eye-witnesses of the occurrence, namely, Haq Nawaz (P. W.
11) brother of the deceased and Noor Khan (he died after having got his statement recorded before the Committing Magistrate as (P. W. 10) and subsequently at the trial stage his statement :,as transferred to the Sessions file under section 33 of the Evidence Act and read as evidence).
According to the prosecution he is an independent witness but the case of the defence is that he being an old tenant of Haq Nawaz P. W. Was a partisan and interested witness ; Mst. Alam Khatoon (P. W. 12), injured wife of Haq Nawaz P. W. And Mst. Zohran Khatun (P. W. 13), sister of the deceased as well as Haq Nawaz P. W. Two more eye-witnesses were cited in the F. I. R. Namely, Memraiz Khan, brother of Noor Khan P. W. And Muhammad Akbar Khan. But they were given up as having been won over. Three other eye-witnesses cited in the F. I. R., namely, Samand Khan, Sultan Sikandar Khan and Hayat Ullah Khan, who were closely related to the deceased, were given up as unnecessary. It may be pointed out at this stage that three out of four eye-witnesses produced by the prosecution are very closely related to the deceased, and therefore, they are partisan and interested witnesses in the background of long-standing bitter enmity between the two parties. So far as the fourth eye-witness, namely, Noor Khan, P. W. Is concerned he too appears to be partisan and interested as shall be explained later.
5. Khan Mir, Khalas Khan and Bahadur Khan appellants were arrested by Ghulam Qadir S. I. (P. W.
15) on the 23rd of December, 1970. All the other appellants were arrested by the same police officer on the 8th of January, 1971. There is no recovery of any consequence or value either from the spot or from the appellants.
6. Dr. Nazir Ahmad Nazar (P. W. 14) performed post-mortem examination on the dead body of the deceased on the 10th of December, 1970, at 9-00 a. m. And found on his person a lacerated fire- arm wound of entrance r x i" on the right side of head, 2" above the right ear and lacerated fire-arm wound of exit 2" x 1" over the left side of head, z" above the left eye-brow and 3" above the right ear.
In his opinion, death was due to injury to brain haemorrhage as a result of this injury, which was caused by a fire-arm and was sufficient in the ordinary course of nature to cause death. Lady Doctor Mrs. Ghulam Rasool (P. W. 0 medically examined Mst. Alam Khatoon P. W. At 5-45 p. m. On the 9th of December, 1970, and found two injuries on her person. A lacerated wound with inverted edges about r x on the left knee-joint, and lacerated wound about 21",- 1" on lateral side of thigh above left knee-joint. Both the injuries were declared simple. They were caused by fire-arm within 12 hours duration.
7. The appellants in their statements before the trial Court denied having participated in the occurrence. They stated that they had been falsely implicated due to enmity with the P. Ws.
8. In the F. I. R. The occurrence is reported to have taken place in the following manner : on the fateful day Haq Nawaz P. W., his son Hayat Ullah Khan, nephew Sultan Sikandar Khan, sister Mst.
Zohran Khatoon (P. W. 13), father Samand Khan and the deceased were present at their dera. Haq Nawaz P. W. And the deceased had just finished eating their meals when they witnessed that in the southern direction of their dera were standing Sultan Khan, Saifullah Khan and Khan Mir Khan appellants whereas on the west were standing Khan Mir, Bahadur Khan appellants, Rustam Khan, Aslam Khan acquitted co-accused and Khalas Khan appellant. Sultan Khan appellant raised a lalkara that Haq Nawaz P. W. And the deceased should be aware for he had come to avenge the murders of his father and nephew. On hearing this the deceased climbed the roof. Then Saifullah Khan appellant also raised a lalkara and Sultan Khan appellant fired from his rifle the shot of which hit the head of the deceased. The second shot was fired by Saifullah Khan appellant and it bit the left leg of Mst. Alam Khatoon P. W. Thereafter, all of them, 10 in number, started firing. Haq Nawaz P.
W. Had a licensed gun. He fired shots from the same in self-defence. The occurrence besides others was also witnessed by Noor Khan P. W. Memraiz Khan and Muhammad Akbar Khan who pleaded the accused persons to spare the members of the complainant party. The appellants eventually decamped. The deceased as well as Mst. Alam Khatoon P. W. Were taken on the cots in an injured condition to the police station. However, the deceased died on the way.
9. We have heard learned counsel for both the sides and have carefully perused the record. It may be pointed out at the outset that there are no recoveries of any consequence or value in this case.
In other words, there is no corroborative evidence. The parties have a long-standing bitter enmity and blood feuds between them. As against the appellants therefore there is no other evidence except the oral testimony of the eye-witnesses and the medical evidence. We would first assess the value of oral testimony. Noor Khan P. W., according to the prosecution, is an independent witness but according to the defence is a partisan of the complainant party. In his statement before the Committing Magistrate transferred to the Sessions file he stated that on the fateful day he and Memraiz Khan had gone to meet Haq Nawaz P. W. And the deceased and while they all were sitting in the courtyard the appellants and the acquitted co-accused came there. Sultan Khan appellant raised a lalkara saying that he had come to avenge the murders of Saadullah Khan and Alam Khan. But the P. Ws. Begged him to spare the members of the complainant party. In the meantime, the deceased took a gun and climbed the roof. The first shot was fired by Sultan Khan appellant which hit on the head of the deceased who fell down. Mst. Alam Khatoon P. W. Was hit by the shot of Saifullah Khan appellant. _Thereafter, all of them opened fire. Haq Nawaz P. W.
Fired from his gun in self-defence at them. When the assailants had left the deceased and Mst.
Alam Khatoon P. Ws. Were taken to the hospital. The deceased died on the way. In the cross- examination he stated that he and Memraiz Khan were real brothers. He stated that it was incorrect that both of them were tenants of Samand Khan father of the deceased and Haq Nawaz P. W. He had no concern with the deceased or Haq Nawaz P. W. According to him they had gone to meet the deceased and Haq Nawaz P. W. Only because they were employed in Karachi and from them information could be obtained of the possibilities of finding service in Karachi. He further stated that it was correct that against him a case was registered under section 216, Cr. P. C. For providing refuge to Isab Khan deceased while he was fugitive in a murder case. On the basis of this statement it is argued on behalf of the prosecution that Noor Khan P. W. Was independent witness as he was not connected in any way with the complainant party. But a perusal of the statement of Mst. Alam Khatoon P. W. Wife of Haq Nawaz P. W. Would show that this was not correct. She had stated in the cross-examination that she knew Noor Khan P. W. Before the present occurrence and that he was known to her because he used to visit her house since a year before the present occurrence. She further stated that Noor Khan P. W. And Memraiz Khan were their tenants. If that was so then Noor Khan P..W. Being a tenant of the' complainant party would also be considered as a partisan and interested witness. The other eye-witnesses, namely, Haq Nawaz brother of the decease Mst. Alam. Khatoon P. W. Injured wife of Haq Nawaz P. W. And sister-in-law of the deceased and Mst. Zohran Khatoon P. W., sister of Haq Nawaz P. W. And the deceased are closely related to the deceased, partisan and interested witnesses. It could be said that they being members of the household and being inmates of the house when the occurrence took place were the natural witnesses. May be that was so. But the question which requires determination is that since they were interested witnesses and their hostility to the accused party was well established, their testimony would have to be considered with great caution and it would not be safe to accept the same without independent corroboration. It has already been observed that independent corroboration is not forthcoming in this case, and, therefore, we are left with nothing else except the ocular testimony of interested witnesses who have a motive to falsely implicate as many persons from the rival side as possible. In the present case, they implicated ten persons in all, all inter-related and members of the same family out of which two were acquitted by the trial Court, namely, Aslam Khan aged 18 years and Rustam Khan aged 17 years only on the ground that they were too young and it was improbable that they could have participated in the occurrence, although the evidence against the acquitted co-accused was exactly the same as that against the appellants. Anyway, the eye-witnesses were disbelieved in respect of their participation. The important question which arises in this case is as to how credible is the version of the eye- witnesses of this occurrence. It may be noted that according to the eye-witnesses ten assailants including the appellants and acquitted co-accused armed with fire-arms surrounded the house of the complainant party and all of them opened fire. According to Mst. Alam Khatoon P. W. She could not tell exact number of shots fired by the accused party. However, each one of them had fired four or five times. If we were to rely on her testimony in this respect, it would mean that 40/50 rounds must have been fired by the accused party besides the shots which may have been fired by the complainant party. But it is strange that the Investigating Officer did not find a single empty on the spot. Learned counsel for the State is of the view that they may have picked up the crime empties before leaving the place of occurrence. But this is improbable particularly when Haq Nawaz P. W.
Was firing shots at the appellants from his gun. If the appellants were picking up or collecting crime empties from the spot before leaving the place, it is probable that they would have been fired at by Haq Nawaz P. W. Anyway, the record does not indicate that any crime empty was picked up from the spot although there was exchange of firing between the two sides. The next point which requires careful examination is that according to the prosecution version the deceased took his gun and went to the roof of the house in order to scare away the appellants. This would mean that the deceased was at a much higher level than Sultan. Khan appellant when he was fired at by Sultan Khan. According to the medical evidence the deceased had a fire-arm wound of entry on the right side of head 2" above the right ear and he had an exit wound on the left side of head, 3' above the left ear. Thus according to the medical evidence it appears that there was only an incline of 1" so far as the head injury was concerned. Learned counsel for the appellants argues that the incline in the present case of the injury was so little that it could not have been caused by a shot of fire-arm fired by a person who stood in the courtyard at the other who stood on the roof.
The argument is that if the prosecution version was to be accepted as correct, then the incline should have been much more than I'. Learned counsel is of the view that since the incline was insignificant, the spot may have been fired at by some assailant who was in a lying position on an adjoining roof at the time of firing the shot at the deceased. Learned counsel further submits that the nature of the injury caused to the deceased was by a bullet probably tired from a rifle and that Mst. Alam Khatoon P. W. Had sustained bullet injuries which may have been caused by shot-gun. It is submitted by learned counsel that no crime empty was picked up in this case although ten assailants were stated to have opened fire. It is submitted that it was so because the prosecution version about the occurrence was false and that the deceased was probably fired at by some unknown assailant from an adjoining roof as a sniper without having been seen or identified by any one. Learned counsel further argues that the possibility could not be ruled out that the number of assailants may have been two, one armed with a rifle and the other with a shot-gun. It is submitted that according to the prosecution version both the deceased and Mst. Alam Khatoon P.
W. Were hit by shots of fire-arm, although Mst. Alam Khatoon P. W. Had sustained pellet injuries which could have been caused by a shot fired from a gun. It is submitted that if the number of the assailants was more than one or possibly two, they could have fired the two shots from their respective fire-arms at the deceased and Mst. Alam Khatoon P. W. From the roof of the adjoining house, but since the eye-witnesses in this case were interested and hostile, they attemped to rope in as many members of the accused patty as they could because of their hostility and suspicion. It is further submitted .By learned counsel that according to Hag Nawaz P. W. All the accused persons had fired three or four shots each before he took shelter behind thresh-hold of a kotha and stared firing at them in self-defence. However he had stated that he remained sitting in the courtyard with his gun without firing the same until the deceased and Mst. Alam Khatoon P. W. Were injured and it was only thereafter that he took refuge. According to this version, by this time the assailants had fired many shots and it could 1:e inferred that had he been sitting in the courtyard during this period, he could have not been spared. We have carefully gone through the statements of eye- witnesses in this case but since there is long-standing bitter enmity between the complainant and the accused parties, it would not be safe to convict or sentence the appellants on the basis of uncorroborated and tainted testimony of interested partisan and hostile witnesses. It cannot be definitely said as to whether all the appellants or some of them were assailants in this case. It is also difficult to pinpoint as to which of them caused injuries to the deceased and to Mst. Alam Khatoon P. W. The possibility could not be ruled out that the deceased was murdered by a bullet fired at him by some unknown enemy from any of the adjoining or nearby kothas and that he could neither be seen nor identified. But since there was hostility of the complainant party with the accused party, almost all the members of the accused party were roped in on suspicion. Anyway, from whichever angle we look at this case we find that the prosecution version is not free from doubt. In the peculiar circumstances of this case when the trial Court disbelieved the prosecution version regarding the two acquitted co-accused although the evidence against them was the same as against the appellants; on the same ground the appellants should also have been given the benefit of doubt as it was not safe to convict them on the basis of tainted testimony of interested and partisan witnesses which even conflicted with the medical evidence. In the circumstances, therefore, we are of the considered opinion that the convictions and sentences awarded to the appellants 'were not proper. The appellants should have been given the benefit of doubt which we hereby give to them. Their convictions and sentences are hereby set aside and they are acquitted. Their appeal is accepted. They shall be released fro n Jail forthwith if not wanted in any other case.
10. The death sentence awarded to Sultan Khan appellant is not confirmed.
11. In the light of the above discussion, we do not find any merit in Criminal Revision No, 773 of 1973, which is hereby dismissed.