' MUHAMMAD AFZAL ZULLAH, J.-By judgment dated 17-1-1976 a learned Additional Sessions Judge, Sialkot convicted Muhammad Munir aged 31 and Muhammad Hussain aged 50 for the murder of their co-villager, Muhammad Sadiq, under section 302 read with section 34, P. P. C. And sentenced them to death and a fine of Rs 1,000 each. In default of payment of which, each was to undergo further R. I for one year. Half of the fine, when recovered, was directed to be paid as compensation to the heirs of the deceased. Four others, namely, Hakim Ali, his son Muhammad Sarwar, Khadim Hussain and his brother Muhammad Sarwar sons of Chiragh, who were also tried together with Muhammad Munir and Muhammad Hussain for the murder of Muhammad Sadiq and murderous assault on Muhammad Riaz, Muhammad Siddique and Fazal Ahmed P. Ws. Were, however, acquitted. The convicts have challenged their conviction through Criminal Appeal No, 167 of 1976, the State has challenged the acquittal of Hakim Ali, Khadim Hussain and his brother Muhammad Sarwar under section 417, Cr. P. C. Through Criminal Appeal No, 957 of 1976; and Murder Reference No, 158 of 1976 for confirmation of sentences of death is also before us. They are being disposed of together.
2. The occurrence took place on 6-1-1974 at 3-30 p.m. F. I. R. Exh. P. A. Was lodged by Muhammad Shafi, P. W. 14, at 5 p.m. At Police Station Sialkot, which is at a distance of 5 miles from the place of occurrence-near a Chhapper in the area of village Gadarey.
3. Muhammad Shafi, P. W. 14, is not only the first informant but also first cousin and sister's husband of the deceased. He himself claims to be an eye-witness and when appearing as witness gave the prosecution version as follows :- "The witness accompanied by the deceased had gone to the latter's well known as Chah Noshanwala. After staying there for sometime they were returning in the company of Siddique, Fazal and Riaz P. Ws. When near a Chhapper, Munir and Muhammad Hussain appellants, Hakim Ali and his son, Muhammad Sarwar, another Muhammad Sarwar son of Chiragh Din and Khadim Hussain, acquitted accused, came out of a school building. Munir raised a lalkara {{URDU TEXT}} Munir and Muhammad Hussain were armed with 12 bore guns while all others had dangs.
Muhammad Hussain advanced towards the deceased and fired hitting the deceased on the right side of his chest. Then Munir fired hitting the deceased on his left temple. Sadiq deceased fell down and died on the spot. The other accused, who were armed with dangs caused injuries to the three eye-witnesses. Khadim Hussain gave a dang blow to Riaz P. W. On his head. Both Sarwars accused gave dang blows to Siddique P. W. On his head. Hakim All gave a dang blow on the head of Fazal A hmed P. W. Riaz P. W. Snatched the dang from Sarwar son of Hakim Ali and hit the same dang on Sarwar's head. Said Sarwar retrieved the dang from Riaz. Meanwhile Inayat, a given up P. W. Came running from the village. He had a 12 bore gun with which he fired at Hakim Ali accused and injured him. Safdar and Muhammad Khan had also witnessed the occurrence. After the assailants went away, Muhammad Shafi P. W. Left for the police station and lodged the F. I. R. As noted above."
4. The motive as disclosed in the F. I. R. And formally supported at the trial was that Muhammad Shafi, a brother of Munir was the depot-holder of village Gadarey. Muhammad Sadiq deceased lodged a complaint against him on behalf of the villagers with regard to improper distribution of ration quota; on which an Assistant Food Controller came to the village and held an enquiry.
Muhammad Sadiq deceased appeared as a witness against Muhammad Shafi, on which the quota of village Gadarey was allotted to Riaz Ali son of Fazal Ali, another depot-holder. According to the prosecution, this gave annoyance to Munir appellant, the brother of Muhammad Shafi depot-holder and on account of this grudge Munir and his party did not receive sugar quota from Riaz Ali on the previous Eid which quota he had distributed from the Baithak of Muhammad Sadiq deceased. It is strange that despite denial from the accused side at the trial as also before the Committing Magistrate no evidence was produced with regard to the enquiry held by the Food Department nor Riaz Ali, the other depot-holder was examined as a witness. The prosecution relied on the verbal statement of the complainant, which was contradicted by the accused. Another motive, however, showing some reason for implication of Munir appellant has been admitted by the P. Ws. Namely, that Rafaqat, brother-in-law of Safdar P. W. Was murdered. Nazir, a brother of Munir was one of the accused. He became approver and secured the conviction of Nawaz, a nephew of Safdar as also Rafaqat's wife. He himself obviously earned his acquittal by deposing against Nawaz and Rafaqat's wife. According to the defence, this was the main cause why Munir was implicated in this case. The said Rafaqat was a nephew of Siddique and Riaz P. Ws.
5. Although Muhammad Shafi P. W. Stated that all the accused belong to one-brotherhood, no specific relationship has been mentioned except that Muhammad Sarwar and Khadim Hussain are brothers inter se while the other Sarwar is son of Hakim Ali. Muhammad Hussain and these four accused are Bhatti by caste but Munir is Khokhar. There is nothing to show as to how the Khokhar is related to the Bhattis. Besides Muhammad Shafi, four other persons appeared as eye-witnesses.
They are: Muhammad Siddique P. W. 15, Muhammad Riaz P. W. 16, Fazal Ahmed P. W. 17 and Muhammad Safdar P. W.
18. The first three are injured. All the eye-1 witnesses including Muhammad Shafi are closely related inter seas also A with the 'deceased. All of them fully supported the prosecution case. Inayat an important witness and a party man of the deceased was not examined. He was involved in some other cases and remained absconder. Muhammad Khan, another eye-witness, although closely related to the deceased, was given up as won over.
6. Excepting Muhammad Sarwar son of Hakim Ali, who was an Army employee and was arrested from his unit on 20-3-1974, all the accused were arrested on 11-1-1974. Two 12 bore guns were recovered from Muhammad Munir and Muhammad Hussain. No crime empty was recovered from the spot. Otherwise too, there is nothing on the record to show any connection of the recovered guns with the crime. The police recovered a dang each from the remaining accused but none of them is shown to have been connected with the crime. They were not even blood-stained. The police had reached the spot at 4-30 p.m. Though strangely enough the F. I. R. Is stated to have been recorded at police station at 5 p.m. On inspection of the spot, blood-stained earth was taken into possession from two places.
7. On autopsy the following injuries were found on the dead body of Muhammad Sadiq deceased "(1) A punctured fire-arm wound of inlet 1-2 x 1-4 brain deep left temporal region of head.
(2) A fire-arm wound of inlet 1-2" x 1-4" x muscle deep front of right chest 1" above the nipple.
Blackening arround the wound was present.
(3) A fire-arm wound of outlet 1.1-4 x 1-2" x muscle deep on right side of chest outer aspect.
' Note.-Injuries Nos. 2 and 3 were through and through with each other."
' The skull was fractured and pellet was recovered from the right side of the head under the skin.
Brain was damaged under Injury No, 1 which was grievous. Others were simple. They were all caused by fire-arm.
8. Hakim Ali accused had following injuries on his person : "(1) Six scabbed wounds 1/8" X 1/8" size on abdomen. One pellet was removed from the left side of abdomen and was handed over to police.
(2) Two scabbed wound 1/8" x 1/8" size front left knee lower part.
(3) Two scabbed wounds 1/8" x 1/8" size outer aspect of left thigh.
(4) Three scabbed wounds 1/8" x 1/8" size outer aspect of left leg."
' Injury No, 1 was kept under observation. All others were declared simple. They were all caused with fire-arms.
9. The three eye-witnesses suffered the following injuries :-
(i) Muhammad Siddique P. W. 15-
(1) Lacerated wound 2" x x bone deep right side of head.
(2) Lacerated wound 1.1-2" x 1-4" x bone deep on right occipital parietal region of head.
' Both the injuries were kept under observation and X-ray of skull was advised. The injuries were caused by blunt weapon.
(ii) Muhammad Riaz P. W. 16-
(1) Lacerated wound 1 3,'4" x 1/4" x bone deep right side of head. The injury was kept under observation and X-ray skull was advised. The injury was caused by blunt weapon.
(iii) Fazal Ahmed P. W. 16-
(1) Lacerated wound 3/4" x 1-4" x 1-4" on the middle of forehead at the hair line margin. This injury was caused with blunt weapon and was simple in nature.
It is obvious from the medical evidence that the deceased suffered the chest injury from a very close range because there was blackening around it but c the eye-witnesses' account runs counter to it. The doctor thought that Injuries Nos. 1 and 2 on the deceased were "probably" by separate shots. He clarified that he was not sure about it. Regarding Injury No, 1 on the abdomen of Hakim Ali the doctor further clarified under cross-examination, that they were in fact six separate injuries and that he had "for the sake of convenience mentioned that as Injury No, 1", which he further opined, was "most probably caused by one shot". He, however, did not rule out the possibility of there being more than one shot for causing these six injuries on the abdomen. He did not rule out such a possibility with regard to the injuries Nos. 2, 3 and 4 as described by him. It may be mentioned here that the doctor wrongly stated the number of pellets recovered from the dead body as 26. It was on account of misreading of his report at the time of recording the statement. In fact there was only one pellet in the sealed bottle handed over (after the post-mortem examination) to the police.
10. All the accused except Hakim Ali, denied their participation in the occurrence. Sarwar son of Hakim Ali pleaded alibi. The main defence version is contained in the statement of Hakim Ali and is as follows :-- "Sadiq deceased accompanied by Riaz, Siddique and Fazal Ahmed P. Ws. Forcibly let loose their cattle in our fields and damaged the crops. Myself accompanied by my three sons, namely, Ashraf, Aslam and Islam seized those cattle and were taking them to the cattle pound for having them impounded. The said four persons including the deceased attacked us. When we resisted their attack to retrieve their cattle, we gave them some stick blows in defence. These four persons shouted their relative Muhammad Inayat P. W. For help, who came running from his house armed with a gun and started indiscriminate firing from a close range. It was almost an evening time. As a result of reckless firing by Muhammad Inayat P. W. Sadiq deceased and myself were seriously injured. The story as concocted by the complainant party in conspiracy with the police is absolutely false. Muhammad Inayat P. W. Absconded immediately after the occurrence and thereafter he was not traceable. He was not even produced by the prosecution in the committing Court because he had left his village for fear of implication in this incident. I drew the attention of this Court to the report of Asghar All Constable dated 9th December 1975 on the summons dated 8th December 1975, issued by this Court for the attendance of Muhammad Inayat P. W. This summons and the report is on the record which show that Muhammad Inayat P. W. Is not traceable and is an absconder in various criminal cases."
' Earlier in answer to two other questions he had stated "as a matter of fact myself and Sadiq deceased received gunshot injuries as a result of indiscriminate firing by Inayat P. W. The allegations as put, are incorrect;" and "myself and Sadiq deceased were injured on a reckless firing of Muhammad Inayat P. W. Blood might have trickled down from my injury or those of Sadiq deceased." All the accused including the appellants professed innocence and attributed false implication to party faction in the village. Munir had specifically denied the motive part of the prosecution as alleged against him in his statement before the Committing Magistrate. Sarwar son of Hakim Ali had specifically pleaded alibi before the Committing Magistrate by stating that he was (at the time of occurrence) in his regiment at Dargai in Mala Kand Agency at about 350 miles away from his village. He also raised similar plea at the trial and produced his Commanding Officer, Lt.-Colonel Muhammad Hussain as D. W.
1. No other evidence was led in his defence. The Commanding Officer deposed that he knew Muhammad Sarwar son of Hakim Ali. He was a Naik (Surveyor) in his Headquarter Battery at Dargai He was on leave till 6-1-1974 but according to the Unit record he had joined duty on the same day i,e,, 6-1-1974 at 5 p.m. And remained on duty till next morning. The witness explained the distance between Sialkot and Dargai and demonstrated that it was impossible for Muhammad Sarwar to have reached Dargai after participating in the occurrence as alleged by the eyewitnesses. He also mentioned how an A. S. I. Had arrested the accused and D the manner in which he had, after making investigation, sent confidential communications Exh. D. A./1 and Exh. D. B./1 certifying the presence of Muhammad Sarwar on his duty at the time of occurrence." The learned trial Judge believed the plea of alibi raised by Muhammad Sarwar and held that he was "not present at the time of occurrence". Although the motive part of the prosecution case was not disbelieved but the learned Judge when dealing with the contention of the defence regarding non-production of the documentary evidence in this behalf observed that the weakness of the motive "does not destroy the prosecution case". The F. I. R. Was treated as having been promptly lodged excluding the possibility of concoction but the learned Judge did not adequately deal with the solid criticism from the defence side that at least 3 witnesses had admitted that the police had reached the spot at or about 4-30 p.m. When the F. I. R. Is shown to have been registered at the police station at 5 p.m. There was nothing in the evidence to reconcile this major flaw. It will thus be not correct to say that there was no possibility of concoction. The recoveries of so-called weapons of offence were believed and relied upon but the learned trial Judge did not show as to how they were connected with the crime. Hakim Ali's defence version was rejected by making reference to, what the learned Judge thought as, improbabilities therein. The clear acceptance of plea of alibi of Muhammad Sarwar and his acquittal, it appears, presented some difficulty for the learned Judge regarding reliability of the eye-witnesses who had deposed against him (Sarwar) as also the other accused.
But the learned Judge got over the same in two ways : (i) when acquitting all the accused other than Munir and Muhammad Hussain he used the phrase "are given benefit of doubt" in a rather loose sense ; and (ii) by trying to show that there was corroboration against the other accused in the recovery of blood-stained earth, weapons of offence, medical evidence and the serologist's report regarding earth that it was stained with human blood. If these items could be, as thought by the learned Judge, treated as corroboratory piece of evidence, then Muhammad Sarwar and Khadim Hussain sons of Chiragh Din and Hakim Ali could not have been acquitted ; nevertheless they were acquitted because the learned Judge thought that they had no intention to kill Muhammad Sadiq deceased and further that the injuries on the P. Ws. Were, as put by him, "simple and very minor in nature". If the learned Judge was convinced that they had participated in the occurrence they could have been convicted under section 148, P. P. C. For which they had duly been charged and in any case under section 323, P. P. C. This is particularly so regarding Hakim Ali.
Learned Judge had himself thought that he bore, as he described, the stamp of injuries ; but in reality it appears that the learned Judge thought it better to convict two persons as they were allegedly armed with guns and were alleged to have fired at the deceased. May be that he was not convinced regarding the participation of some of the other accused.
12. Learned counsel for the appellants has vehemently criticised the approach of the learned trial Judge. He also highlighted the admissions of the eye-witnesses regarding their relationship inter se and pointed out the motive for them to falsely implicate Munk. He also analysed the ocular account given by them of what had actually happened at the spot and as to how each one of them had come there. The role of Inayat, who it appears, deliberately remained an absconder, so that he may not be examined as a witness, was severely criticised. The recording of the F. I. R. At the spot was demonstrated by making references to the admissions of the witnesses regarding arrival of the police at the spot at such a time that the F. I. R. Must have been recorded thereafter. He also pointed out that the injured eye-witnesses, like Inayat, tried to avoid appearance before the police for two days after the occurrence and that is why they were medically examined on 8-1-1974 ; because as the learned counsel thought, they were at that stage convinced that they were the aggressors qua Hakim Ali who had suffered serious injuries including six gunshots in his abdomen.
The contradiction between the medical evidence and the eye-witnesses account was also made the subject of comment. According to the spot analysis done by the learned counsel, the defence version of cattle trespass asserted by Hakim Ali was more probable. One reason being that land of Hakim Ali, it was discovered during cross-examination, was adjacent to the spot. On the contrary, it was shown from the admissions of the P. Ws. That the complainant party are not the land owners near the spot where the blood was found. He made pointed references to further admissions, in cross-examination, by the P. Ws. That as the learned counsel put it, they were gang of criminals, that is why, they were involved in several criminal cases of illicit arms. They were facing prosecution for robbery-cum-attempted murders and forest robberies. As already noted the motive part of the prosecution case was challenged on the basis that although Munir had specifically denied it before the Committing Magistrate, no attempt was made at the trial to produce documentary evidence. Instead, oral statements made by the highly interested witnesses only, were depended upon. On the other hand, admissions by the P. Ws. That Nazir, a brother of Munir, was involved in the murder of Rafaqat, a relation of the eye-witnesses, and that he had turned approver against their other relations, according to the learned counsel, provided ample proof and motive for them to falsely implicate Munir. He also argued that there was no community of interest between Munir who is a Khokhar and the other accused, who are Bhatti by caste. And above all, learned counsel made full use of the acceptance of alibi of Muhammad Sarwar son of Hakim Ali and his acquittal-a base for condemnation of all the eye-witnesses as unworthy of any credit in so far as the remaining accused are concerned. He also pointed that there was no independent corroboration of such a type so as to connect each accused with the crime; and regarding Hakim Ali's admission of participation and injuries, it was argued that the same could not be read out of context of the defence version and more so, when the eye-witnesses cannot be depended upon.
13. Learned counsel for the State argued that all the eye-witnesses were not previously involved in criminal cases nor they had a strong motive on account of Rafaqat's murder case to falsely implicate Munir appellant. He also thought that, despite the admissions to the contrary, the relationship of the eye-witnesses should not be treated as close. With regard to acquittal of Muhammad Sarwar son of Hakim Ali, learned counsel tried to show that his acquittal could be described as one on account of benefit of doubt and that being so, it could not be a cause for any reflection on the testimony of the eye-witnesses. He thought that there was no serious contradiction between the medical evidence and the eye-witnesses' account and further that Inayat's absconsion might be due to the fear of arrest in other cases. With regard to the defence version, learned State Counsel observed, that it was, as he thought, more conjectural than real; and lastly on account of his view about Muhammad Sarwar's acquittal, learned State Counsel thought that there was no need for the corroboration of the eye-witnesses. He, therefore, while opposing the appeal of Munir and Muhammad Hussain pressed for setting aside the acquittal of Hakim Ali, Khadim Hussain and Muhammad Sarwar sons of Chiragh. He, however, did not make any comment with regard to the acceptance by the State of the acquittal of Sarwar son of Hakim Ali and resultant failure to file an appeal against him.
14. With the help of the learned counsel, we have gone through the evidence. Three main aspects of the case need particular consideration :
(i) Plea of alibi of Muhammad Sarwar son of Hakim Ali, its proof and acceptance ;
(ii) Effect of the acceptance of the said plea ;
(iii) There being two parallel versions, what would be the result, if they are put in juxtaposition.
15. Sarwar son of Hakim Ali pleaded alibi before the Committing Magistrate as also at the trial. Exhs.
D. A/1 and D. B/1 show that long before the submission of challan Exh. D. C., his Commanding Officer who ultimately appeared in his defence had, after due investigations, endorsed his plea of alibi.
Thus, it was not an afterthought. The police did not make any serious effort to take into possession the documents from his Unit showing his presence at Dargai, several hundred miles away, at or about the time of occurrence. If there would have been anything suspicious about the documents, they would certainly have been taken into possession to contradict him. Otherwise too, it is unlikely that Sarwar, if present in the occurrence, would have fled away when his father Hakim Ali had received serious gunshot wounds in the abdomen, and he himself had not been attributed a major role. This is not all. The ocular account indicated that he was injured by Riaz P. W. With a clang. Had it been so, the Commanding Officer or any other concerned person from his Unit could be asked whether on his return from leave he was found in injured condition. He was not medically examined so as to confirm the statements of the eye-witnesses. The explanation that arrest took place after about two months would not make any difference. The doctor could have been asked to conduct examination for discovering scars/healed wounds of about two months' duration. It appears that the prosecution, on account of the strength of alibi, had not done all that was necessary to disprove it. And this also seems to be the reason why when challenging the acquittal of Hakim Ali, Khadim Hussain and Sarwar son of Chiragh under section 417, Cr. P. C., the State did not question the acquittal of Sarwar son of Hakim Ali. The learned trial Judge accepted his plea of alibi without any reservation. His findings in this behalf are in most certain terms. It was held as follows :- "He (the D. W.) also proved the letters Exhs. D. A/1 and D. B/1 which were addressed by him to the District Administration. I believe the witness because there is no reason for him to tell a lie in the Court. He is a respectable Officer of the Army and he made a straightforward statement. Hence, I hold that Muhammad Sarwar son of Hakim All (accused) was not present at the time of occurrence."
' These findings have not been challenged in appeal. We find no justification to upset the same and thus affirm them.
16. After the above categorical acceptance of the plea of alibi of one of the accused, it was unfair to him as also to his other co-accused to give him only a 'benefit of doubt', as done by the learned trial Judge. He was entitled to clean and honourable acquittal. Not only this, his co-accused were also entitled to rely on the fact that one of the accused who had allegedly taken part in the attack was found to have been falsely implicated by the same eye-witnesses who deposed against them.
We, therefore, hold that Muhammad Sarwar son of Hakim Ali having succeeded in clearly establishing his plea of alibi, his acquittal is not on the basis of benefit of doubt. He did not participate in the occurrence and that he was falsely roped in the case by the eye-witnesses may be for the same reason as visualised b the learned trial Judge, namely : "it is common practice in this country to implicate few innocent relatives of the real culprits. .. . . ...... . ". We do agree that the superior Courts have not so far accepted the principle of falsus in uno, falsus in omnibus and the theory of indivisibility of credit' and instead have tried to 'sift the grain from chaff' ; but never without serious reservations and doubts about the witnesses who deliberately involved an innocent person in a charge of capital nature. When, in such a case, the acquittal is clean, the Courts insist upon independent and strong support-circumstantial or otherwise, for giving finding of guilty against the co-accused of the innocent victim of false implication by the same eyewitnesses. The supporting evidence must at least tend to prove the participation of each one of the other accused. Of course, it might not be essential if the acquittal in the circumstances is on the basis of benefit of doubt, because in that finding the possibility of participation is not excluded in definite terms. In this case, as the acquittal of Sarwar so of Hakim Ali, as discussed above, is clean and absolute, and not on account of benefit of doubt, the remaining accused could not be convicted on the testimony of same eye-witnesses who falsely implicated him, without Independent and strong corroboratory evidence, tending to establish their participation beyond reasonable doubt.
17. The learned trial Judge probably was conscious of the need for corroboration in this case. That is why he mentioned some circumstances as furnishing the same. They are : recovery of bloodstained earth ; recovery of the weapons of offence ; and the medical evidence. The additional factor of reports on blood analysis is not an independent circumstance. They only show that the earth was stained with human blood. The so-called weapons of offence as already noted are not connected with the crime in this case. Their so-called recovery from the accused is nothing more than completion of a formality by the police. The medical evidence and recovery of blood-stained earth from the spot are also of no help to the prosecution in this case ; because they fit in with the parallel defence version of Hakim Ali. If the same is put in juxta-position to his version, it would be impossible to hold that these two items (blood-stained earth and medical evidence) would falsify the defence version and support only the prosecution version. In both the versions, the place of occurrence is almost the same and the weapons alleged to have been used are also similar.
Medical evidence rather contradicts the eye-witnesses qua the distance from where Muhammad Hussain fired the shot. It is true that if Inayat (not examined) fired his gun in aid of the complainant party, it would be unlikely that he would aim at his own party man, i,e,, the deceased. But his non- production, rather proved abscondence, shows that his statement might have weakened the prosecution case. If, as held by the learned trial Judge, the deceased was shot at from distance and not close range, this would tend to support the defence version. L All the accused were within the dang-hitting distance from the complainant party. Only Inayat was at a distance. If, as alleged by the defence, he opened indiscriminate firing towards fighting factions as given in Hakim Ali's version of cattle-trespass, it is not impossible that two of the pellets from his 'indiscriminate firing' hit the deceased also, in addition to the injuries to Hakim Ali. Be that as it may, it would not be possible to give a definite finding in this behalf without the examination of Inayat who being the party man of the complainant would be presumed to have avoided appearance and been held back, so as to deprive the defence of a major benefit. Moreover, admittedly, according to the prosecution evidence, several persons came from the village at or about the time when Inayat came armed with a gun and they also saw the occurrence. Some of them, at least, must b independent persons. None has been produced by the prosecution. Instead, all closely related persons were examined as eye-witnesses. These circumstances instead of supporting the prosecution case tend to weaken it. Regarding the place of occurrence vis-a-vis the recovery of blood-stained earth, suffice it to observe that discrepancies in the statements of the eye-witnesses qua the sequence and cause of their being present at the spot make their version doubtful. On the other hand, the defence version does not suffer from any infirmity on account of the spot analysis ;instead, it gets strengthened by the admission of Muhammad Siddiq (P. W. 15) that Shafi, brother of Hakim Ali, owned land adjacent to the spot.
18. Although the learned trial Judge has not specifically used the motive alleged by the prosecution as a corroboratory factor, we have not ignored this aspect of the case. He was of the view, despite formally accepting the motive as alleged, that "the weakness of the motive does not destroy the prosecution case". It might be so in some cases. In the present case, however, if the motive alleged against Munir appellant fails, so many questions of vital importance would crop up. He alone is Khokhar by caste, others are Bhatti. The binding factor between them would then have to be discovered. There is none. Thus, Munir's assertion in his statement under section 342, Cr. P. C., would get strengthened ; that he was involved falsely due to party faction. It has been established in cross-examination that Nazir, a brother of Munir was involved in a murder case, he turned approver and got convicted Nawaz a nephew of Safdar P. W. 18, who appears to be the pivot in, and master- mind behind, the prosecution case. The defence suggestion is not an impossibility ; therefore, the prosecution case on motive needed a closer scrutiny. The deceased, it is alleged, filed a complaint against Shafi, a brother of Munir regarding his sugar depot. He also appeared against him before an Assistant Food Controller in an enquiry and got the depot cancelled. The quota was then allotted to Riaz Ali son of Fazal Ali. Munir denied all this before the Committing Magistrate. The witnesses were challenged and cross-examined on this issue. It was also denied at the trial. It remains unexplained as to why, if best documentary evidence was available, the prosecution relied on weaker oral statements of highly interested witnesses. In view of other enmities, the character of the eye-witnesses and also in view of a definite counter version about the cause of occurrence and cause of false implication, it would, in these circumstances, be unsafe to accept the motive as alleged by the prosecution. Undoubtedly, the exclusion thereof further weakens the case against the remaining accused.
19. Learned trial Judge took note of, as he put it, the 'stamp of injuries' on some eye-witnesses and Hakim Ali accused. In the circumstances of this case, as discussed earlier, it would not make any difference. Despite their presence at the spot proved by their injuries, the P. Ws. Did depose falsely qua one accused. There is no certainty that they have not done so regarding one or other accused.
Hakim Ali's injuries do support them to the extent that he participated in the occurrence. But this does not improve their credibility, because Hakim Ali never denied his participation. There is no surety that they told the truth about what Hakim Ali did at the spot. It is not possible, in view of the character of the evidence furnished by the eye-witnesses, to hold that Hakim Ali's version is false or that it is so incompatible with proved facts that it must be rejected. Therefore, even against Hakim Ali the prosecution case remains as weak as against the others. There are several other infirmities in the prosecution case, e.g. Qua the recording of the F. I. R , its timing, incompatibility of the medical evidence and spot analysis with prosecution case, the possibility of some eye-witnesses being at places other than the spot, the involvement of Inayat and other prosecution witnesses in criminal cases and relationship and enmities affecting the prosecution witnesses. But we do not consider it necessary to deal with them. The foregoing discussion shows that Sarwar son of Hakim Ali was falsely implicated and the case against the other accused including the two appellants has not been established beyond any reasonable doubt. They are all entitled to acquittal. We accordingly accept the appeal against conviction, dismiss the appeal against acquittal and acquit Muhammad Hussain and Muhammad Munir appellants. Death sentences are not confirmed. They shall be released forthwith if not required to be detained in any other case.