1. MUHAMMAD AFZAL ZULLAH, .J.-This appeal through special leave arise out of the judgment by the Lahore High Court in Criminal Appeal No. 608 and Murder Reference No. 182 of 1973, whereby the conviction of the two appellants namely Ghaus Muhammad alias Ghausa and Sardar A.I alias Sardara for an offence under section 302, P. P. C. And award of sentence of death to each of them by a learned Addl. District Judge at Sargodha for the murder of their co-villager Muzaffar Khan, were upheld and confirmed. Four persons were accused in the F. I. R. Two of them are the appellants, the third one named in the F. I. R. Namely Hafeez died before the trial and the fourth, person namely M. Amir who was sentioned in the F. I. R. As all unidentified person, was acquitted by the learned trial Judge by extending benefit of doubt to him.
2. The occurrence took place near a village graveyard at about 11-30 a. m. On 12-1-1967. The F. I. R.
3. Was lodged by M. Amir, a step-brother of the deceased on the same day at 12-30 p. m. At the police station at a distance of 1-1/2 miles. M. Amir died before he could be, examined as a witness.
4. In the absence of M. Amir, the first informant, as a witness at the trial, the prosecution story can be constructed from the deposition of Akhtar A.I P W. 10, a brother of the deceased who was examined as a witness of motive and Noor Muhamrrad P. W. 11 who appeared as an eye-witness. Ghzus Muhammad appellant is the son of the father's sister of the deceased. His sister Mst. Nur Khatoon was married to Akhtar All P. W. She was murdered about four years prior to the occurrence in this case. Although her-in-laws accused Ghaus Muhammad appellant for her murder but the latter had lodged a formal report in this regard against the father, the brother and two nephews of the deceased. It is not clear from the record as to what was the result of the trial, if any. One Mst. Sunar Khatoon was married to a brother of Hafeez accused. She was abducted by the deceased. After obtaining a Court divorce, he married her. Mst. Sunar Khatoon was later on murdered. Ghaus Muhammad appellant, Hafeez deceased, his brother Saeed and one Amir Abdullah were prosecuted for this murder. Ghaus Muhammad appellant was on bail in the said murder case, when (2/3 months prior to the occurrence in this case) four members of the family of Muzaffar deceased, namely Muhammad Khan, Sahib Khatoon, his father and sister respectively, and his son and daughter were murdered. Mst. Sahib Khatoon was married to a brother of Ghaus Muhammad accused. It would appear from the above facts that Mst. Nur Khatoon and Mst. Sahib Khatoon (who were both murdered) were married to individuals of opposite-parties in the same family through `watta' arrangement. The appellants were not arrested in the last-mentioned quadruple murder case. Ghous Muhammad, Hafeez and some others were alleged to have belaboured A.I Akhtar P. W.
5. And a case under section .325, P. P. C. Was registered against them. The appellants and their companions were absconding and had also been formally proclaimed so when the occurrence in this case took placa. Ghaus Muhammad appellant is not related to Hafeez accused (deceased) whose sister-in-law Mst. Sunar Khatoon was abducted by the deceased. Sardar appellant and Amir, the acquitted accused, also are not related to the other accused.
6. Nur Muhammad the eye-witness stated that although he belonged to another village 6/7 `kos' away, he, on the day of occurrence, had come to the village of the deceased to pay a courtesy call to the deceased and his brother Amir, and had also to offer condolence on the demise of the relations of the deceased. It was the Eid day. (It is stated that in the rural areas of Punjab people do visit each other on .Eid days to offer condolence on recent demises). The witness was informed by Amir P. W. Since dead that Muzaffar had gone to the graveyard for offering Fateha on the grave of his father. (This i5 also stated to be a practice that on Eid days people, visit graveyard to offer Fateha for their departed relations). The witness accompanied Amir to see the deceased. From a distance of about a killa, he saw Ghaus Muhammad and Hafeez, armed with revolvers and Sardara and Amir, armed with guns, emerging out of the bushes in the graveyard. They rushed towards the deceased and raised `lalkaras'. The deceased ran towards opposite direction but was overtaken by the assailants, He had made some 15 karams from the grave of his father, when the deceased was fired at by the accused as a result of which he fell down. His pistol and holster were removed by the accused from his person. Ata Muhammad P.W. 12 also had arrived at the scene of occurrence and had witnessed the same. These two P. Ws. Remained on the spot while Amir, since dead, went to the police station and lodged the report. Ata Muhammad P. W. Gave substantially the same account of occurrence as given by Nur Muhammad P. W. In his deposition. Apart from these two eye-witnesses, the prosecutionexamined one Muhammad Khan as Waj Takkar witness who claimed to have seen all the four accused near a hillock (after the occurrence) when they were carrying fire arms. He also claimed to have heard them saying "Muzaffar had been murdered."
7. Apart from the afore-noted items of evidence, the Investigating Officer made statement about what he saw in the graveyard as an indication of the presence of the culprits prior to the arrival of the deceased. He collected 4 stubs of cigarettes and an empty cigarette packet from underneath a tree at some distance from the grave of the father of the deceased. He also collected as evidence of burning fire, from an abandoned kotha in the graveyard. These recoveries were intended to show that the culprits had spent the night or part thereof in the kotha and had been sitting under the tree in the expec--tation that someone from the complainant party-might be the deceased-- would come to the grave for offering Fateha on the Eid day. Defence plea was of denial.
8. The learned trial Judge acquitted Amir accused because some doubt had cropped up regarding the testimony of Ata Muhammad P. W. In connection with Amir's identification as a culprit.
9. Muhammad Khan the wajtakkar witness was not believed but Nur Muhammad and Ata Muhammad P. Ws. Were treated as independent witnesses and placing reliance upon their state-- ments, he found the two appellants guilty. The learned Judges in the High Court also discarded the statement of wajtakkar witness. In this connec--petition, they subjected to some amount of doubt the claim of Ata Muhammad P. W. To have come to the graveyard by chance. However, they held the view that even if he is disbelieved, there was no reason why the testimony of Nur Muhammad should be discarded, "when he stood supported by the account of occurrence given by M. Amir in the F. I. R. And is corroborated by motive, the medical evidence, as well as the abscondence of the appellants and their companions." The trial Court judgment was accordingly upheld.
10. Learned counsel for the appellants has criticised the depositions of Nur Muhammad and Ata Muhammad with a view to show that they, on account of certain infirmities including improbabilities, were unreliable witnesses and that they had not seen the occurrence. The second main argument advanced by him is that none of these witnesses can be considered as 'independent' and on account of their partisan character, it was necessary to look for corroboration. He analysed each one of the items of corroboration relied upon from the prosecution side and contended that they are of no assistance to the prosecution and that they cannot be used against the appellants.
11. The learned Assistant Advocate-General tried to show that notwithstand--ing the friendship of Nur Muhammad and Ata Muhammad with the family of the deceased and the former's sympathies for the latter, they had no motive of their own to falsely implicate the appellants. Therefore, their testimony is worthy of credence. He also contended that the arrest of the appellants nearly one year after the occurrence, is a clear proof of abscondence with regard to which two police officers also made specific statements. Therefore, this circumstance could be used as furnishing strong corrobora--petition if at all it was needed. He, however, agreed that contents of the F. I. R. The maker of which has since died, cannot be used as corroboration of the statements by any of the other witnesses but the fact that the names of the accused and the witnesses are mentioned in the F. I. R. Can be taken note of as a part of res-gestae. He also relied on the medical evidence and motive as the supporting circumstances.
12. Although it is not one of those cases of blood feud going on for decades, in which the testimony of the witnesses, from each side, is brought under strict scrutiny in order to avoid risk of false implication, yet it cannot be safely observed that the murder and other cases including abduction and divorce cases between two families involved herein were of such type and nature that they do not permit any complacency with regard to the role witnesses who might be produced by -either side. In the circumstances, we would not place this case in a category different from that of "blood feud"' cases. On principle, therefore, the testimony of these witnesses would have to be subjected to the same tests'as applied to those cases. It has first to be seen whether the presence of Nur Muhammad and Ata Muhammad at the spot is probable. Ata Muhammad's claim that he witnessed the occurrence' is not free from doubt. It was Eid day the prosecution evidence shows that everybody was engaged in the Eid festivities and rituals (Fateha and condo-) lences) while Ata Muhammad stated that he was having round of his `fields so as to see whether some damage had been done to the crop. The wheat crop was then only few inches high. Even if it be assumed that he had gone to his fields, the location of his land vis-a-vis the graveyard is such that it is highly improbable that he would have been present in or near the graveyard. This witness was also a witness in some other cases launched from the complainant side against the accused. We agree with the High Court that it would not be safe to rely on his testimony. Nur Muhammad is the only witness whose testimony has been used as substantive piece of evidence. It is not improbable that Nur Muhammad being a friend of the family of the C &-ceased might have come to their house on the Eid day for offering condolence qua the quadruple murder committed 2/3 months earlier. We, therefore, do not agree with the learned counsel that he should be disbelieve able simply because on Eid day it could not be expected from a villager to go away from his own house and family. But that, by itself, is not enough to place implicit reliance on this witness qua the implication of each accused. His deposition contain several elements which give a clear indication that h is a partisan witness. In addition to his professed friendship with the de case he always sided with the complainant party.
13. Both the appellants were involved in the earlier occurrence of murder and Nur Muhammad was a witness against them from the opposite side. The fact that he was to depose about a recovery only, will not make any difference in this case. The earlier occurrences were admittedly of recent past.
14. He had played an active role from the complainant side almost like a family member. And indeed his having come to the village of the deceased on Eid day and that too from a distance of about 9 miles, also shows his very close association with the complainant side. The further fact that he accompanied Amir with the purpose of going to the grave of the father of the deceased, in the context of other circumstances, would also show his complete alignment with the complainant party. Moreover, he from his own admission, appears to be a person of controversial and doubtful antecedents. He was involved in nearly a dozen criminal cases. It was due to these elements in the testimony of Nur Muhammad that the learned Judges of the High Court also felt the necessity of mentioning several corroborative factors for placing reliance on him. We are of the view that although it is probable that Nur Muhammad was present at the scene of occurrence, he cannot be depended upon regarding implication of each accused without any independent corroboration.
15. The maker of the F. I. R. Has died. It cannot be used as corroboration of the testimony of another person, namely Nur Muhammad P. W. At best the prosecution can use it for showing that the name of Nur Muhammad is mentioned in the F. I. R. But that by itself would not advance the prosecu-- petition case. It is true that the appellants avoided arrest for nearly a year after occurrence and could, in this context, be treated as absconders, but there is no evidence or circumstance to show that their abscondence was not con--nected with the earlier quadruple murder case. Nothing has even been relied upon from the prosecution side to show that: after the present occurrence they had become aware of the fact that they had, in addition to the earlier murder case, been involved in this case, and that they were needed by the police in two cases. If such evidence would have been led, it might have made this case distinguishable from the one in the Sher Bahadur and another v. State (1972 SCMR 651). As there is no such evidence available, we would not treat the- abscondence of the appellants as relatable to this case. The motive in the peculiar circumstances of this case also does not furnish corroboration qua the appellants. Sardar A.I appellant had no independent motive of his own to murder Muzaffar. He, however, being the friend of Ghaus Muhammad, would have to be bracketed with him, in this behalf. He earlier was accused, along with Ghaus Muhammad, in connection with earlier. Cases. If he and Ghaus Muhammad had this motive to kill Muzaffar presumably to help their friend Hafeez; there is an equally strong probability that Nur Muhammad, on account of his above-explained connection with the complainant party, had motive to falsely implicate them. Therefore, the motive, in the circumstances of this case, does not furnish corroboration. The same would apply to the medical evidence. Although the learned counsel for the appellants contended that the Doctor's testimony contradicts Nur Muhammad' with regard to the place from where the appellants allegedly fired at the deceased (the deposition of Nur Muhammad does not fit in with the blackening on one wound) we would ignore this circumstance as the learned Courts below, while appreciating the evidence, did not consider it as a contradiction. However, the mere fact that the deceased suffered gunshot wounds would not fix the identity of the assailants Thus this item of corroboration also in this case, does not tend to 'connect the appellants with the crime.
16. As statements of Muhammad Khan and Ata Muhammad are of no credence and the testimony of Nur Muhammad. P.W. Cannot be relied upon qua participation of the appellants without corroboration, which is not forthcoming, therefore, both the appellants are entitled to benefit of doubt. Extending the same to them, we accept the appeal, set aside the convictions and, sentence of the appellants namely Ghaus Muhammad son of Nur Muhammad and Sardar Muhammad son of Ghulam Husain and direct that they be released forthwith if not required in any other matter.