1. DORAB PATEL, J.-The two appellants are brothers. They were tried with their father Faujdar and nine other persons under section 302/ 149, P. P. C. For the murder of Muhammad Deen, under section 307/149 on three counts for making an attempt on the lives of Muhammad A.I, Faiz and Said all eye-witnesses, under section 326/149 for causing grievous hurt to Dost Muhammad, the father of Muhammad Deen deceased, and under section 323/149 on four counts for causing hurt to four other persons. The Sessions Court held that the prosecution had totally failed to prove the charges under section 149, P. P. C. Therefore, it rightly held that each of the accused could be held liable only for the acts committed by him and after examining the ocular evidence and the other evidence produced by the prosecution, the Sessions Court acquitted Faiz and two other accused. All the other accused were convicted on various counts and as we are only concerned with the appeal of the appellants, I have to point out that Barish A.I was convicted under. Section 302, P. P. C. And sentenced to transportation for life "for causing the death of Muhammad Deen" whilst the other appellant was convicted under section 324, P. P. C. For firing at Mst. Noor Elahi and sentenced to one year R. I. Fines were also imposed.
2. The appellants and the other accused who were convicted filed appeals in Lahore Seat of the West Pakistan High Court and in the event that happened, these appeals were heard and dismissed by a learned Judge of the Lahore High Court by his Judgment dated 4-9-1972. Only the two appellants challenged the dismissal of their appeals, and leave was granted by this Court on 22-11-1972 on the ground that the cases of the appellants "require scrutiny by this Court in the interest of justice", the more so, as the conviction of the appellant Barish A.I for murder appeared to beinconsistent with the finding of Sessions Court that the murder had been committed in the heat of the moment and in a sudden and unpremeditated fight.
3. The occurrence took place in Village Deewasingh on Eid day and the trouble began at a kabaddi Match in the village. According to the prosecution, the party of the accused were inimical to the party of the complainant, and as both the parties were present at this Kabaddi Match, Baggi (one of the nine accused convicted by the Sessions Court) attacked Zulfiqar son of Dost Muhammad with a hatchet and hit him on the arm. Apparently this incident led to the break up of the Kabaddi Match and everybody returned home. Now, both the party of the complainant and the party of the accused lived in the same village and as they were returning home, according to the prosecution Sarja, another son of Dost Muhammad, was attacked by Faujdar and three other accused with hatchets and Dangs, therefore, the party of the complainant rushed home and told ' their father Dost Muhammad about the two attacks on them. Then according to Mr. Rizvi, Dost Muhammad went with his sons and relations to Faujdar's house to get his explanation about the two attacks on the sons of Dost Muhammad, But, according to the prosecution, instead of giving an explanation, Faudjar and the other accused attacked Dost Muhammad and his party with fire-arms, hatchets and Dangs. And in the course of this attack, Muhammad Deen was hit by a shot fired by the appellant Barish A.I, who was armed with a pistol and although Muhammad Deen was hit by a Single pellet, he died. Further, according to the prosecution, other members of the party of Dost Muhammad were also hit by fire-arms, blunt weapons and sharp-edged weapons. But I would pause to point out here that three of the accused also received injuries in the occurrence and Mr. Riaz admitted that the appellant, Taj had a fire--arm injury.
4. Turning now to the facts of the prosecution case, the prosecution examined eight eye-witnesses; Dost Muhammad (the father of the deceased), Jehangir, Shaikh Muhammad, Sarja, Zulfiqar, Said, Faiz and Muhammad A.I, but I have to point out here that Faiz and Muhammad A.I, though closely related to Dost Muhammad, did not support the prosecution case against Barish A.I.
5. The motive for the occurrence, even according to the prosecution, was the enmity between the party of the accused and the party of Dost Muhammad, because two years before the occurrence, Yasin and Yara (who were acquitted by the Sessions Court) and two other accused (who were convicted by the Sessions Court) had broken the arm of Muhammad Deen (deceased) for which they were tried and acquitted. There was also a cross case between Muhammad Deen and Sarja but this case was also dismissed. Additionally, according to the F. I. R. Faujdar, the father of the appellants, suspected Sarja of having illicit relations with his daughter, and I may point out here that Sarja is one of the brothers of the deceased.
6. Whilst, I am on the question of motive, I may also point out that the cross-examination of the eye- witnesses established other grounds of enmity. Thus for example, Jehangir, who is one of the crucial eye-witnesses in the case, had been prosecuted under section 326, P. P. C. At the instance of Faujdar together with one Muhammad Khan. This Muhammad Khan too was Jehangir's cousin and their cousin had contested an election against Faujdar. Again the cross-examination of the witnesses proved that one of the recovery-witnesses, Rehmat A.I, was a cousin of Noor Ahmad who had taken part in proceedings under section 107, Cr. P. C. Against Faujdar, the father of the appellants.
7. Additionally, as rightly submitted by Mr. Jamil Hussain Rizvi, all the eye-witnesses are closely related because they are either the sons of Dost Muhammad or his cousins, therefore, the ocular evidence is heavily tainted by enmity, and as it was not fit to be accepted without corroboration, the prosecution relied on corroboratory evidence on the recovery of a .12 bore pistol from Barish A.I.
8. But although no recovery was made at the instance of the appellant Taj, the Sessions Court was impressed by this evidence, as also by the evidence of motive, and convicted the appellants as stated. However, as according to the Sessions Court, the prosecution4 had failed to prove the charges under section 149, P. P. C., it rightly held a that each accused was liable only for the crime committed by him, and the view of the Sessions Court was that Barish had fired the fatal shot. But in view of the admission made by the eye-witnesses in their cross-examination, the Sessions Court held, and in my opinion rightly, that the occurrence in which Muhammad Deen died was "not a premeditated one and started all of a sudden in the heat of passion". In all these circumst--ances, to say the least, it is somewhat surprising that the Sessions Court held that Barish A.I was guilty of the murder. Therefore, an appeal was filed in the High Court and pressed inter alia on the ground that findings of the Sessions Court were inconsistent, because an accused, who had fired in the sudden fight in the heat of passion, could not be held guilty of murder.
9. The learned Judge did not examine this submission, perhaps because he did not agree with the finding that the occurrence was unpremeditated, but this is far from clear. Be this as it may, the learned Judge re-examined the evidence and rejected the evidence of the recovery of the pistol from the appellant Barish A.I. But the plea of the appellant was that the ocular evidence could not be accepted, because it was heavily tainted by enmity, therefore, the learned Judge observed that the ocular evidence against Barish A.I was corroborated by the fact that "the dead body was recovered from near the door of his house which goes to show that he was on his retreat when he was fired. This proves that the accused party was the aggressor". And in view of this conclusion, the learned Judge also held Tai to be guilty and dismissed his appeal also.
10. Mr. Rizvi submitted that the finding of the learned Judge that the party of the appellant was the aggressor was contrary to the evidence on the record, and I would recall here that, according to the prosecution, the occurrence was the consequence of the two previous attacks on the party of the complainant by some of the accused. The first of these attacks, was by Baggi at the Kabaddi Match. It is obvious that many villagers must have been present at the Kabaddi Match. But to prove this occurrence, the prosecution only examined Jehangir, who was a highly interested and unreliable witness, therefore, I agree with Mr. Rizvi that the failure of the prosecution to examine independent witnesses is fatal to its plea that Baggi had attacked Zulfiqar as alleged by the prosecution.
11. The second incident before the major occurrence was the fight between the parties on their way home from Kabaddi Match, and as once against the prosecution case about this occurrence is based on the evidence of Jehangir and other highly interested witnesses, I agree with Mr. Rizvi that it would not be safe to accept the case of the prosecution that Faujdar and others had attacked Sarja, as alleged by the prosecution. However, the failure of the prosecution co prove that the party of the complainant had been attacked before the occurrence, would not be fatal to its case because the role attributed to the appellants is in the major occurrence which was definitely outside Faujdar's house. And I now turn to Mr. Rizvi's criticism of this part of the prosecution case.
12. Mr. Rizvi relied on the fact that two of the prosecution eye-witnesses Faiz and Muhammad A.I did not support the prosecution case against the appellant Barish A.I. Secondly, as submitted by learned counsel, the prosecution eye-witnesses admitted that Taj had received a fire-arm injury whilst two other accused by the name of Bashir and Sharif had also been' injured in the occurrence.
13. Bearing in mind the fact that the occurrence) took place outside the house of Faujdar, as proved by the recovery of blood outside his house, it ii obvious that the parties had attacked one another, yet none of the witnesses could explain how these two accused had been injured. Thirdly, according to the eye-witnesses, five to six shots were fired, and in this connection Jehangir and Dost Muhammad further said that after the appellant Barish had fired at Muhammad Deen, the appellant had gone towards Muhammad Deen's house and fired in the door o. The house, yet no empties or pellets whatsoever were recovered. This cannot but cast doubt on the ocular evidence.
14. Fourthly, as submitted by learned counsel, the six eye-witnesses, who implicated the appellants were hostile witnesses because they were either the sons or very close relations of Dost Muhammad. Additionally, apart from Dost Muhammad's hostility to the appellants, Dost Muhammad was compelled to admit in his cross---examination that he had been declared by the police as a bad character but he professed not to know whether his name was still "in the bundle of the bad characters". It is difficult to believe that the witness did not know whether he was registered as a Badmash on the date he gave his evidence, therefore, at the risk of being tedious I would hold that there is force in Mr. Rizvi's submission that the ocular evidence is not fit to be accepted unless it is corroborated by independent and reliable evidence. But although the lengthy F. I. R. Lodged by Dost Muhammad stated that the occurrence had been witnessed by two other persons who were independent witnesses, the prosecution did not examine these two witnesses nor there is any explanation of its failure to examine these two witnesses. To say the least, all these circumstances react against the prosecution case.
15. With these observations, I turn to Taj's appeal. When we enquired about the basis of this appellant's conviction, both the learned Assistant Advocate-General and Mr. Rizvi stated that he was convicted under section 324, P. P. C. For having fired at Mst. Noor Elahi. But whilst Sheikh Muhammad and another eye-witness said that Mst. Noor was hit by a shot fired by the appellant Taj, the prosecution did not dare to examine her, and on the contrary, according to the medical evidence, she had only a simple injury caused by a blunt weapon, therefore, as it is not alleged that Taj had any weapon other than a pistol, it is clear that the eye-witnesses had given false evidence, and I have further to observe with regret that this appellant's conviction is based on a mis--reading of the evidence, accordingly the learned Assistant Advocate-General very fairly conceded that he could not defend this appellant's conviction and his appeal must be allowed.
16. I now turn to the appeal of the other appellant, Barish A.I. I pointed out that the finding of the Sessions Court was that this appellant had fired in the heat of the moment and without any premeditation. On they assumption that the ocular evidence was fit to be relied upon, the question which required examination was whether this appellant's case fell under Exception IV to section 300, P. P. C. But the Sessions Court failed to examine this question, and as the High Court did not, presumably because it took the view that the party of the appellants were the aggressor, Mr. Rizvi submitted that the view of the High Court was contrary to the evidence on the record and that the view of -the Sessions Court was correct. Now in reaching the conclusion that the occurrence took place "in the heat of the moment", the Sessions Court had relied on the admissions of some of the eye-witnesses that there had been a fight outside Faujdar's house. Secondly, the only place from which blood was recovered was outside Faujdar's house and this was proved by the evidence of "Rehmat A.I, who witnessed the recoveries made by the Police. Unfor--tunately, both these circumstances escaped the attention of the High Court.
17. However, in reaching the conclusion, which he did, the learned Judge observed that the dead body of Muhammad Deen "was recovered from near the door of his house which goes to show that he was on his retreat when he was fired." According to Mr. Rizvi, these observations were not supported by evidence whatever, but I find that Jehangir had said that the deceased "wanted to enter his house but was hit with the fire--arm by Barish A.I. " However, none of the other witnesses have said so, and, on the contrary, the Jehangir's evidence is inconsistent with that of Dost Muhammad, Zulfiqar, Faiz and Muhammad A.I. Further, as I pointed out, the only spot from which blood was recovered was from outside Faujdar's house. Thirdly, as the medical evidence proves that the deceased was hit in the chest and not from behind, he was not hit as "he was on his retreat".
18. Therefore, with all respect to the learned Judge, his finding that the deceased was hit outside his own house is not correct and is based on a misreading of the evidence.
19. How then was Muhammad Deen hit? It is impossible to answer the question because according to the eye-witnesses Faujdar had fired a gun. Similarly, Barish, Taj, Bashir and Lala are also alleged by the eye-witnesses to have fired pistols. Thus the pellet which hit the deceased could have been fired from the pistol of the other accused also. And indeed as the deceased was hit, according to the medical evidence, by a single pellet, this suggests that he was hit by a stray shot. Accordingly, in all the circumstances discussed, even if we were to assume that the evidence of the eye- witnesses is fit to be accepted, which it is not, the ocular evidence fails to prove that the fatal shot had been fired by Barish A.I. But as I said the ocular evidence cannot be accepted without corroboration, and the evidence of motive cannot furnish such corroboration, because it is a case in which motive is a double-edged weapon, therefore the Sessions Court had erred in relying on this evidence. However, the Sessions Court had also relied on the evidence of the recovery of this appellant's pistol at his instance, but Muhammad Khan, who witnessed this recovery, said in his evidence that "the pistol produced by Barish A.I. Was lying with the police at the place of recovery" when he went to the Police Station. In view of this admission, the learned Judge rightly held that the recovery of this pistol was not fit to be relied upon. But the result of this finding was that there is no corroboration of the ocular evidence which is tainted by enmity riddled by material discrepancies.
20. Accordingly, I would hold that the prosecution had failed to prove beyond reasonable doubt this appellant's guilt also.