' MUHAMMAD HALEEM, J.-Appellants Raham Ali, Mitho, Ghulam Kadir and Jumo, cousins inter se, were tried for the murders of Rehan and Yousuf, convicted under section 302 read with section 34, P. P. C. And sentenced to imprisonment for life by the learned First Additional Sessions Judge, Nawabshah, vide judgment dated 25th April 1974. The appellants have appealed to assail their conviction and sentence.
2. According to the prosecution case, the incident occurred at 3 a.m, on 26th May 1966 in the house of the deceased in Mohalla Gharibabad in the town of Daur, District Nawabshah. Of the two deceased Rehan was the brother of Gut Muhammad while Yousuf was his son. On that night, Mir Muhammad and Ali Gohar had stayed with Gul Muhammad and the two deceased in the same house. Ali Gohar was in the Army and had come a week before on leave and resided in his village, which is two miles away. Mir Muhammad lived 12 miles away from the place of incident in village Makhno. Ali Muhammad had gone to meet Ali Gobar who was intending to visit Daur and so Mir Muhammad also accompanied him. The two deceased, Gul Muhammad and the two guests, Mir Muhammad and Ali Gohar, who are the nephews of Gul Muhammad, slept in the courtyard. At that time cattle were tethered in the courtyard and a lamp was said to be burning. Gul Muhammad woke up on hearing some noise and he saw the four appellants, of whom Raham Ali and Mitho were armed with guns while Ghulam Kadir and Jumo with hatchets. He and the other two, namely Mir Muhammad and Ali Gohar, rushed to the room and bolted the door from inside. From the space in the planks of the door they saw Raham Ali and Mitho each standing near the cost of Rehan and Yousuf while Ghulam Kadir and Jumo causing hatchet blows to Yousuf and Rehan respectively. On cries being raised from inside the room the appellants scaled over the wall firing shots in the air and escaped. Ali Sher in the meantime, on hearing the gun report, managed to enter the courtyard after breaking open door of the courtyard, and on seeing him Gul Muhammad, Mir Muhammad and Ali Gohar came out of the room and they saw the two deceased lying dead with hatchet injuries. Other neighbours also came to the house who were informed of the incident. Thereafter Gul Muhammad went to Police Station Daur, which is a furlong and half away and lodged the F. I. R.
At 4 a.m. The same day which was recorded by Ghayur Abbas S. H.
0.
3. After recording the report, he repaired to the vardat where he saw the two dead bodies lying on separate cots. He secured the blood-stained earth from there. He noticed a small staircase, one in the courtyard and the other outside the courtyard, which were used by the appellants for entering the house and for escaping from there. He also noticed a broken door of the courtyard and also a small room with a door made of wooden planks. He also secured two crime empties from the street by the side of the wall of the courtyard. He then despatched the dead bodies for post- mortem examination and thereafter examined Mir Muhammad, Ali Gohar, Ali Sher and Imamdin.
Lastly, the S. H.
0. Took into possession the lantern produced by Gul Muhammad. He looked for the appellants but could not arrest them until 4th June 1966. Appellants Raham Ali and Mitho produced their licensed guns which were secured under mashirnamas, Exhs. 18 and 19. Again, Ghulam Kadir and Jumo produced one hatchet each from their houses which were secured vide mashirnamas, Exhs. 20 and
21. The bloodstained earth and the two hatchets were sent for chemical analysis but the report only disclosed human blood on one of the hatchets and earth. The two crime empties and the guns were, however, not sent for matching to forensic laboratory and there is, therefore, no evidence that the two crime empties were fired from either of the two guns.
4. The autopsy on the bodies of the two deceased was performed by Dr. Abdul Majid. On the body of Yousuf, he noticed the following injuries :- "(1) An incised wound 5" x 3" x bone deep horizontal on the right shoulder-joint and right side of base of neck. Underlying structures were cut. Seventh cervical vertebrae were also cut.
(2) An incised wound 10" x 2i" x maxilla deep obliquely on the front of face, nose, right maxilla, right temporal bone were cut.
(3) An incised wound 13" x 5" x bone deep vertically on the right side of the face frontal bone lift maxilla tongue and mandibler ramus were cut.
( ) Chopping off right side of frontal bone and right parietal bone. Over an area 2k" in diameter, brain matter is also chopped."
' In his opinion, the injuries were caused by a sharp cutting weapon such as hatchet, that they were 8 hours old and that injury No, 4 was sufficient to cause death in the ordinary course of nature.
(5) On the body of Rehan, he noticed the following injuries :- "(1) An incised wound 4" x 2 x skin deep horizontally on the front of right shoulder-joint.
(2) An incised wound 5i" x 2" x facia deep vertically on the right side of the neck.
(3) An incised wound 9" x 3i" x bone deep vertically on the right side of neck and face. Right maxilla, right mandibular ramus and tongue was cut.
(4) An incised wound 7' g lr x brain deep horizontally on the right side of skull, the frontal bone on right side, right temporal bone were cut.
(5) An incised wound 13" x 5" x bone deep obliquely on the back of neck right ear upper too cervical vertibrae and medulla oblongate (part of brain) were cut through and through.
(6) Right little, ring, middle fingers were cut over the promixial, middle and terminal premises."
' In his opinion, they were caused by a sharp-cutting weapon such as hatchet, that they were 8 hours old and that death was caused due to shock and injury to the brain.
6. The appellants denied the prosecution case and pleaded enmity for their false implication. In answer to the question as to what he had to say, Raham All gave out as follows :- "The complainant party bore a long-standing grudge against me. There was a faisla on Holy Book by which we abided and we thereafter had no grievance against the deceased. The complainant party did not forget their grievance and kept in mind the same against me.
' The two witnesses Mir Muhammad and. Ali Gohar are closely related to the complainant. We had absolutely no cause or reason to kill Rehan and Yousuf. The complainant and his witnesses have implicated us because of the previous enmity between us. The complainant party later on learnt that the two murders had been committed by their own relatives Daud and Yakoob over matrimonial affairs and thereafter P.W. Mir Muhammad committed the murder of Daud, who has been convicted and is still serving the sentence. The allegations against me are false. I am innocent."
' The other appellants adopted the same defence. Ghulam Kadir and Jumo further denied the recovery of the hatchets.
7. There is no doubt that there was deep-rooted enmity between the parties who are related to each other. According to the prosecution case, Gal Muhammad and his brother, Rehan, originally resided in village Makhan, Taluka Moro. Some six years back, there was a fight, in which Ali Muhammad, father of Ghulamadir, and Nabi Bux, brother of Jurno, were killed and Gul Muhammad and Rehan were implicated in that murder case. While the case was pending in the inquiry Court, Ghulam Kadir, Mitho and Jumo murdered their cousin, Ghulam Husain, and all the three were implicated in that murder case. That case was also pending in the Court when the parties settled their dispute at the instance of Ghulam Muhammad Jamaal They changed their statements with the result that the prosecution was not able to establish its case against the accused in either case and they were acquitted. Thereafter Gul Muhammad and Rehan shifted to Daur where Gul Muhammad did tailoring work while Rehan sold silk. Gul Muhammad, however, stated that in spite of the faisla the appellants were nursing the grudge and it was for this reason that they had shifted from their village. It is because of that grudge that they had killed the deceased.
8. The trial Court while discarding the evidence of recoveries held as under :- "The blood-stained hatchets were sent to the Chemical Analyser but from the report it transpires that these hatchets which were sent to the Chemical Analyser are reported to have been secured from the vardat near the dead bodies of Yousuf and Rehan as mentioned in the report of the Chemicl Analyser. The other evidence against the remaining two accused, namely Raham Ali and Mitho is the recovery of a gun from each of them. Unfortunately these guns do not appear to have been sent to the ballistic expert and it has not been established that the empty cartridges secured from the vardat had been fired from these guns."
' For the purpose of resting conviction, the trial Court relied on the interested ocular testimony of Gal Muhammad, Mir Muhammad and Ali Gohar. After narrating their evidence in detail, the trial Court held that it was very much impressed by the evidence of these three witnesses, and that in spite of the admitted enmity their lengthy cross-examination did not reveal any material to suggest that either of the three witnesses had given false evidence against the appellants or had falsely implicated any one of them. One other feature, which weighed with the trial Court, was that the F.I.R. Was lodged without any delay giving out the facts in detail, which further lent support to the ocular testimony. Finally the trial Court observed :- "I have, therefore, no hesitation whatsoever in my mind in placing implicit reliance upon the evidence of these three eye-witnesses."
' The rule requiring independent corroboration of interested evidence was not adhered to in the context of the observations of the trial. Court as follows :- "The mere fact, therefore, that these witnesses had previous enmity with the accused party would by itself be no ground for doubting the veracity of any of these witnesses."
9. Against the background of enmity, the ocular testimony of Gul Muhammad, Mir Muhammad and All Gohar has to be appraised, who are closely related to the deceased. Gul Muhammad, of course, cannot be said to be wholly reliable for, according to his own version, he had perjured on oath and changed his statement pursuant to a settlement so as to secure acquittal of appellants Ghulam Kadir, Mitho and Jumo. According to his version and that of his other two witnesses, a lamp was said to be burning in the courtyard and it was in the light of the lamp that they were able to identify the appellants. Although, it cannot be denied that in almost every house in the Mufassil, there will be a lantern, but whether in the instant case it was burning at the time of the incident, appears to us to be doubtful. Such lanterns are usually kept at a place where cattle are tethered for detection of cattle lifters. Again, it is usual that even otherwise vicks are lowered to give dim light with a view to conserve oil. In the above context, Gul Muhammad stated in cross-examination that at the time of the incident "two buffaloes and two young ones of the buffaloes were tethered in the courtyard", but denied that he woke up to tether them. All Gohar while denying this fact was confronted with his admission in the committal Court which was duly proved. According to it, he had stated in the committal Court that he, Gul Muhammad and Mir Muhammad had got up on the movement of untethered buffaloes and that he and Mir Muhammad were still on the cot when Gul Muhammad, while tethering the buffaloes, shouted 'thief'. However, when the S. H.
0. Arrived at the wardat, he did not see the buffaloes. Where they had disappeared, no one has explained. If there were no buffaloes in the courtyard, we fail to see why a lamp was kept burning and that too, without the wick being lowered. It is also not certain as to where the lamp was hanging. While there is no mention in the F. I. R. As to where the lamp was kept, the witnesses have stated that it was hanging on a 'nem' tree, but the investigating officer found a pole, on which the lamp was suppose I to be hanging. The position of the lamp appears to have been changed possibly to bring it nearer to facilitate identification, if at all it was burning. If we were to accept that they had committed no mistake in the identification of the appellants then there was no purpose for interrogating Yaqub and Dawood as it is not the case of the prosecution that there were more than four assailants. It is also in evidence that three months after the incident, P.W. Mir Muhammad killed Dawood, for which he was prosecuted, convicted and sentenced to life imprisonment. At least some suspicion was entertained about two of them even at that stage and in that eventuality their names must have been given in the F. I. R. On suspicion. These factors thus leave for doubt that either the lamp was not burning at all or that it gave dim light if it was burning to make the identification difficult. Besides, there are other improbabilities in the case. Since no buffaloes were found tethered in the courtyard, it is not clear from the evidence as to the noise that awakened not only Gul Muhammad but also Mir Muhammad and All Gohar keeping in mind that the two staircases were used for scaling the wall. Again, if they had enough time to rush into the room why did they not awaken the two deceased for taking them along into the room? We are of the view that the natural instinct would have been to awaken them also which course was not adopted which appears to us to be rather suspicious. There is also in the evidence of Mir Muhammad that a gun was lying on the bad of deceased Rehan, which was not found by the investigating Leer, This obviously was said to give an impression that he expected trouble and for that reason as a precautionary measure he kept his gun on his bed, but that impression now stands belied. Again, one hour was spent at the wardat before Gui Muhammad went to lodge the report, though the trial Court has stated that the F. I. R. Was lodged without any delay. Why he wasted that much of time, is not free from suspicion, particularly when the names of the assailants were known. It is, therefore, not possible to resist the inference that some suspicion was being entertained about the identity of the appellants. Lastly why Dawood was murdered by Mir Muhammad, has not been satisfactorily explained and which murder could equally be for the reason to avenge the murder of the deceased.
10. It is true that Ali Gohar and Mir Muhammad were examined by the police soon after the occurrence, but their presence alone could not make them reliable witnesses when there is a possibility of false implication on account of enmity. All Sher, who is said to have come to the house of the deceased immediately after the occurrence, was not examined, though his name was disclosed in the F. I. R. On the ground that he was won over. Similarly, Imamdin, though not mentioned in the F. I. R. Was given out in the evidence to have come after All Sher. He too was not examined on the same ground. The prosecution, therefore, was not able to get corroboration of the ocular testimony from these two witnesses as well.
11. Why the prosecution had not sent the crime empties for matching, has not been explained as that would have provided firm evidence against appellants Raham All and Mitho if they had matched with the guns. Similarly one of the two hatchets was found to be stained with human blood which, otherwise, could not have been fastened as incriminating evidence either against Ghulam Kadir or Jumo in the absence of evidence as to the description of the hatchets secured from either of them. Again, it has been observed by the trial Court, there is a mention of the fact in the report that the hatchets were secured from' the wardat. In that event, the hatchets cannot be incriminating evidence against either of them.
12. In the circumstances it is not possible to dispense with the rule o prudence, namely that to sustain conviction on a capital charge, the ocular testimony to carry conviction must come from an unimpeachable source, which is not the case here. There is only ipse dixit of interested witnesses, against whom there is admitted enmity without any corroboration from any independent source. It would, therefore, be unsafe to rely on them for purposes of resting conviction.
13. In the result, for the foregoing reasons the prosecution has failed to establish its case against the appellants. Giving them the benefit of doubt, we acquit them, They should be set at liberty fourthwith unless required in some other case. The appeal is thus allowed.