GHULAM MUHAMMAD Versus THE STATE

1. SALAHUDDIN AHMED, J.‑‑ I his is an appeal by special leave of this Court from an order of the Lahore High Court and calls in question the convictions of the three persons, namely, Ghulam Muhammad, Saeed Ahmad and Rehmat Ali under sections 302/34 and 307/34 of the Pakistan Penal Code and the sentences of transportation for life plus a fine of Rs. 5000 each under the former section and the sentences of four years' rigorous imprisonment each under the latter section. Originally ten accused had been tried and convicted of murder and of murderous assault by the learned Additional Sessions Judge, Sahiwal, and four of them had been sentenced under section 302/149 of the Pakistan Penal Code to death and the rest to transportation for life. They were further convicted under section 307 read with section 149 of the Code and sentenced to four years' rigorous imprisonment each for having made a murderous assault on P. W. Riasat Ali. They were also convicted and sentenced under section 148 of the Pakistan Penal Code. On reference under section 374 of the Code of Criminal Procedure and on appeal by the ten convicts the High Court maintained the convictions of the three appellants only, but altered them to those under section 302/34 of the Pakistan Penal Code, and commuted their death sentences to transportation for life each, and sentenced them to pay a fine of Rs. 5,000 each in default to suffer 3 years' rigorous imprisonment. The rest of the convicts were acquitted and their convictions and sentences set aside. The convictions of all the convicts under section 148 of the Code were also set aside.

2. Leave was granted to consider whether there was no point of distinction at all between those whose convictions were maintained and those who were acquitted by the High Court. Furthermore that the High Court had merely on conjectural grounds picked up the three convicts and maintained their convictions.

3. The three appellants are inter‑related. Appellant Ghulam Muhammad is father of appellant Saeed Ahmad. Appellant Rehmat Ali is son‑in‑law of Ghulam Muhammad appellant. Of the seven persons who have been acquitted two of them, namely, Mahboob Subhani and Muhammad Ali are not related to any of the accused persons. The rest of the five, namely, Yara, Atta Muhammad alias Atta, Zafar Sarwar and Muhammad Yar alias Mammi, belong to Khichi caste, and were alleged to be the tenants of appellant Ghulam Muhammad.

4. The incident took place on the 19th of November, 1967, at about 1‑30 p.m. in the oil agency jointly owned by P. Ws. Riasat Ali and Nasrullah Khan and deceased Muhammad Shafi, situated in Cnak No. 120/9‑L in Kamir Tehsil within Police Station Dera Rahim in the District of Sahiwal, A written first information report was sent to the Police Station situated 10 miles away from the place of occurrence, and it was recorded on the same day at 4‑30 p.m.

5. According to the prosecution case there was a business rivalry over the existence of their respective oil agencies between the complainant party and the accused party particularly the three appellants. The two oil agencies were situated very close to each other. Appellant Ghulam Muhammad had started his oil agency first and it was followed by the opening of another oil agency by the complainant and his men. On the fateful day when P. Ws. Riasat Ali and Nasrullah and Shaft deceased were present in course of their business at their agency and their employee Jhanda deceased was also present there, P. Ws. Nazir Ahmad and Mian Khan came to take oil. At the time of the incident P.Ws. Riasat Ali and Shaft deceased were sitting on a cot in the courtyard while Jhanda deceased was sitting on the ground near them. Suddenly all the ten accused including the three appellants having been armed with different kinds of firearms appeared at the complainant's oil agency. A lalkara was raised. Appellant Ghulam Muhammad armed with a gun, Saeed Ahmad armed with a rifle and Rehmat Ali armed with a pistol/revolver along with accused Mahboob Subhani and Zafar Sarwar armed with a gun and rifle, respectively, they all aimed at P. W. Riasat and Shaft deceased. Jhanda deceased stood up and implored them to desist from firing, but this was not heeded and they fired from their weapons and hit Jhanda and Shafi deceased. These five accused also shouted to the remaining five co‑accused who were armed with a rifle and guns to fire also and the latter fired. P. W. Riasat jumped off the cot, and took cover in a ditch near the gate of the agency. In the meantime Shaft deceased also got off the cot and took cover behind the shutter of the gate, In course of the firing the shutter of the gate as well as a tractor stationed outside the agency were hit by the missiles. P.W. Riasat, who had a licensed revolver with him, fired six shots in the air in order to scare away the assailants, and the latter retreated towards appellant Ghulam Muhammad's oil agency firing all the time. During the incident P.Ws. Nasrullah Khan. Mian Khan and Nazir Ahmad (and one Muhammad Hussain not examined) hid themselves behind the drums of oil inside the complainant's agency. Jhaiida died at the spot but Shaft was alive and was taken to Sahiwal D. H. Q. Hospital for treatment. P. W. Nasrullah wrote the report Exh. P. A. at the dictation of P. W, Riasat Ali, and it was sent to Police Station Dera Rahim through another Riasat (P. W. 9), and on the basis of this report a first information report Exh. P. A/1 was recorded. Assistant Sub‑Inspector Muhammad Hanif (P. W. 21) was away from the Police Station at the time. He was, subsequently, informed and arrived at the spot the same day at Sotewala. In course of the investigation blood‑stained earth from three places, a blond‑stained cot, a shutter of the gate with blood‑stains and pellet marks on it, a tractor with firing marks on it, and six empties of revolver from a ditch were recovered from the spot. From the agency of Ghulam Muhammad five drums with pellet marks on them, some pellets and some nozzles were seized.

6. On the 25th of November, 1967, appellants Ghulam Muhammad and Saeed and some other co‑accused were arrested, and among others, Ghulam Muhammad produced a gun. , On the 5th of December, 1967, appellant Saeed led to the recovery of a gun from behind the drums in the agency of appellant Ghulam Muhammad. On the 8th of December, 1967, appellant Rehmat Ali was arrested and he produced a revolver.

7. Shafi deceased was examined by the medical officer of the hospital on the 19th of November, 1967, at 3‑30 p.m and two fire‑arms injuries were found on his body. He died the same day at 5‑30 p.m. and autopsy on his body was held the following day at 9 a.m. During the post‑mortem examination the following wounds were found on his body:

(1) An inlet wound "x 1/3 " oval situated on the left side of upper abdomen going into the abdomen and opening to the right flank outer side 3" above the iliac crest. There was an exit wound 3' x 2" and omentum was found coming out.

(2) A wound of inlet " with an exit wound 1/4' circular with averted margins.

8. The medical officer gave the time between the injuries and death as five hours and said that injury No. 2 was the result of a different shot.

9. Post‑mortem examination on the body of Jhanda deceased was held on the 20th of November, 1967, at 1 p.m. and the following injuries were found on his body:

(1) A fire‑arm wound 1''x " on the front of left lower chest 2 " below the nipple.

(2) A fire‑arm wound of entrance 'x " on the front and upper part of left chest 2 above the nipple.

(3) A fire‑arm wound of entrance "x " one inch medial to injury No. 1.

10. The medical officer gave the time between death and post‑mortem as 24 hours.

11. The accused pleaded not guilty to the charges and said that they were falsely implicated. Appellant Ghulam Muhammad during his statement in the committing Court said that he was falsely implicated due to business rivalry with P. W. Riasat Ali. At the trial, however, he denied this, He admitted his relationship with appellants Rehmat Ali and Saeed and disowned any relationship with Zafar Sarwar and Mahboob Subhani. He also did not admit that the five Khichi accused were his tenants. He said he was not present at the occurrence. Appellant Saeed's statement under section 342 of the Code of Criminal Procedure was also similar. He, however, added that the relatives of P. W. Riasat, namely, Shad deceased and Jhanda deceased and some others had raided the agency of Ghulam Muhammad with fire‑arms and bad fired at the agency. Saeed said be was then not present at the agency and that Shaft deceased and Jhanda deceased were wounded in course of this incident. . Appellant Rehmat Ali denied his presence at the place of occurrence and said that he had been falsely implicated. No witness was examined on behalf of the defence.

12. In support of its case the prosecution relied upon the evidence of four eye‑witnesses, namely, Riasat Ali (P. W. 12), Nasrullah Khan (P. W. 13), Mian Khan (P. W. 14) and Nazir Ahmad (P. W. 15). They also relied upon the evidence of Sher Muhammad (P. W. 16) who had not been mentioned in the first information report. P. W. Sher Muhammad sought to prove that he had seen the appellants retreating from the complainant's agency and firing at their own agency (appellant Ghulam Muhammad's agency), and hitting the gate and the drums there. In pursuance of this statement recorded on the very day of occurrence that the gate, some drums bearing pellet marks and some pellets and nozzles were recovered from the agency of appellant Ghulam Muhammad.

13. The learned Additional Sessions Judge relied on the evidence of all these five witnesses and come to the finding that the prosecution had proved its case against all the ten accused. The learned Judge observed as follows about Nazir (P. W. 15)

14. "An attempt has been made to show that Nazir Ahmad IP. W. 15) is also somehow related to the complainant but this attempt has not fructified as it has not been proved on record that he is also related to any of the deceased or the complainant .............................

15. Nazir Ahmad (P. W. 15), as pointed out above is an impartial witness as it has not been proved that he is in any way connected with the deceased or inimical towards the accused."

16. As regards the other three eye‑witnesses the learned Additional Sessions Judge found that the presence of P. Ws. Riasat Ali and Nasrullah at spot at the time of the incident was quite natural because they were the partners with Shafi deceased in the diesel oil agency. Mian Khan (P. W. 14) and Nazir Ahmad (P. W. 15) were also very natural witnesses because as was manifest from the record, they had come to the agency to purchase diesel oil. All the four eye‑witnesses were mentioned in the complaint Exh. P. A. In regard to the first information report the learned Additional Sessions Judge was of the opinion that the promptness with which the report was lodged ruled out the possibility of prior consultation. In regard to Sher Muhammad (P. W. 16), he was of the opinion that he, too, had not been shown to have had any grudge or ill‑will against the accused. This witness, however, was not mentioned in the first information report and the learned Judges of the High Court gave reasons for holding that has evidence should not be relied on, and I see no reason to disagree with them.

17. The learned Judges of the High Court, however, committed two errors of a fundamental character. First, they in the absence of any evidence on the record observed as follows about Nazir Ahmad (P. W. 15)

18. "We have gained an impression that Nazir Ahmad, Mian Khan and Sher Muhammad are, apart from the relationship of Mian Khan and possibly of Nazir Ahmad also with him, the party‑men of Riasat Ali. Thus on proper analysis, it has been found that all the eye‑witnesses and Sher Muhammad are connected with each other.

19. The above inter se connection of the material witnesses has a direct bearing on the question whether they can be relied upon without corroboration against all the appellants who cad be divided into three groups: "

20. I have carefully examined the evidence of P. W. Nazir and I do not find anything in his evidence to give the slightest indication that he was in any way related to the complainant party, or was an interested person. He is a cultivator and comes from a different Chak, namely, Chak No. 28/13. B. He said he was not a supporter of any party as he was a poor man. He yeas a natural and probable witness a, he had come to the complainant's agency for taking delivery of oil. His presence at the agency at the relevant time was not challenged. No enmity or ill‑will between him and any of the accused was even suggested to the witness. He was mentioned in the first information report which was lodged promptly. He joined the investigation on the evening of the very day of occurrence and was examined by the Police the same day. In these circumstances, I think that the assessment of his evidence by the learned Additional Sessions Judge who had the additional advantage of watching his demeanour was in accord with the evidence, and should not have been brushed by the learned Judges of the High Court merely on the ground of speculation and in the absence of any evidence to support their view that P. W. Nazir Ahmad was, in some way, connected with the complainant party or the deceased person or Ives an interested person. The evidence of P. W. Nazir Ahmad, thus, did not require any corroboration if it was otherwise found acceptable. The learned Judges of the High Court committed a grave error in appraising the evidence of P. W. Nazir with the result that his evidence was not relied on as corroboration of the three eye‑witnesses.

21. Second, the learned Judges of the High Court committed an error of a fundamental nature when without any evidence they found that the com plainant party had first attacked the agency of appellant Ghulam Muhammad, and that only as a retaliatory measure the accused party later attacked the complainant party at their agency. There was no counter first information report in regard to this earlier incident. No such suggestion was ever put to P. Ws. Nazir Ahmad. Riasat Ali and Mian Khan. P. W. Nasrullah denied the suggestion that on the day of occurrence deceased Shafi's brother Bashir, Ashraf Nazir son of Fateh Khan, Jhanda deceased and Muhammad Hussain P. W. went to the agency of Ghulam Muhammad and opened fire there, and that fire was exchanged between them. The witness further denied that in that firing Ashraf etc. retreated and some fire came from house top and hit Jhanda deceased. He also said that it was incorrect that deceased were injured in this firing outside the agency and that Ashraf, etc. picked up Shafi and Jhanda and carried them inside the agency. It may be noted here that it was not suggested to P. W. Nasrullah that the alleged incident in the agency of appellant Ghulam Muhammad had taken place prior to the incident of the present case. In these circumstances the observations of the learned Judges of the High Court that something did take place probably immediately before the occurrence are based on no evidence. The mere fact that on they very day of occurrence upon the statement of P. W. Sher Muhammad a gage of the agency, some drums bearing pellets marks and some pellets and nozzles were recovered from the agency of appellant Ghulam Muhammad did not and could not lend any support to such observations. These recoveries could only corroborate P. W. Sher Muhammad if he had been relied on. It was, however, not stated by any person at that point of time or even when the accused had been examined before the first eye‑witness, namely, P. W. Riasat Alt, was examined, that the complainant party had earlier fired at the agency of appellant Ghulam Muhammad. As has been noticed already such suggestion was never put to P. W. Riasat Ali whose examination concluded on the 29th of October, 1969. A suggestion about an incident at the agency of appellant Ghulam Muhammad was put to P. W. Nasrullah for the first time on the 18th of November, 1Y69, but then again the suggestion or any suggestion that the present occurrence had been preceded by an earlier incident at the agency of Ghulam Muhammad was not put to P. Ws. Mian Khan and Nazir Ahmad

22. Mention may also be made of the inconsistent observations of the learned Judges of the High Court appearing at‑pages 218 and 223‑224 of the judgment.

23. It was observed at page 218:

24. Though there could be a business rivalry between these two parties yet there is no evidence that the rivalry, if any was serious or that it led to any earlier incident, not even an un-significant one. Even if there was a clash of business interest, the evidence is not enough to hold that this alone could furnish motive for Ghulam Muhammad and his family members to kill any one from the complainant party. There is no evidence that there was an existing enmity between the parties on this accounts ..All this in a way shows that till the day of occurrence there was no motive for Ghulam Muhammad and his relations to kill any body from the complainant's side and also, the eye‑witnesses to have falsely implicated them, namely, Ghulam Muhammad, Saeed Ahmad and Rehmat Ali."

25. Nevertheless the learned Judges proceeded to observe thus at pages 223‑224:

26. "We, therefore, hold that the attack was launched at the complainant's agency in all probability, in retaliation to an earlier firing by complainant party on the agency of Ghulam Muhammad."

27. These two observations seem to be inconsistent for, if there was no existing enmity between the parties on account of any business rivalry there was no reason either why the complainant party would go to the agency of appellant Ghulam Muhammad and fire there ineffectively.

28. As regards the implication of the three appellants by the other eye witnesses of the occurrence the learned Judges of the High Court have observed as follows:

29. "We are not convinced that there was any long standing enmity between the complainant party and these appellants so as to assume any motive on the part of the eye‑witnesses to falsely implicate in so far as these appellants are concerned on them, the ocular account given by the witnesses does not need any strong corroboration; neither for the reason that some other accused have been acquitted, because they have only been given benefit of doubt, nor on the ground of so‑called, interestedness. We have no doubt about the presence of the eye‑witnesses in the complainant's agency at the time of occurrence Riasat Ali and Nasrullah are owners of the agency. Their presence is not unlikely. Nazir and Mian Khan are their usual customers. Their presence was also not unlikely. In the very lengthy cross‑examination of all these witnesses, the defence has not been able to throw any doubt in so far as their presence is concerned. They must have seen the occurrence, i.e., that part of firing in which the two deceased got injured . . . . . . . . . . . . . . . In this behalf, there is no reason for us to differ with the assessment of their evidence by the learned trial Judge."

30. The learned Judges of the High Court held that there was no doubt that the two deceased and P. W. Riasat had been fired at in the complainant's oil agency. This view received support from the various recoveries from the said agency as well as the fact that deceased Jhanda was found lying there. The learned Judges also held that there was no substance in the assertion of appellant Saeed Ahmad that during the firing on Ghulam Muhammad's agency, the two deceased .got injured from cross firing by two persons, namely, Haitem and Ramzan. It was rightly observed that if it was so these two persons would have been named among the culprits. The learned Judges proceeded to observe that the highest number of shots fired was seven, and this could as well have been fired by the three appellants only. The learned Judges further said "Even if we assume some clash of business interest, they were the most likely persons to have attacked." This assumption was of course, unnecessary as not only was there the evidence of such business rivalry between the complainant. P. W. Nasrullah and Shafi deceased on one side and appellant Ghulam Muhammad and his relations on the other side, but also the admission of Ghulam Muhammad himself before the committing Magistrate irrespective of his denial before the Additional Sessions Judge.

31. I agree with the appraisal of the evidence of the three eye‑witnesses, namely, P. Ws. Riasat Ali, Nasrullah and Mian Khan by the learned Judges of the High Court. Upon the facts of the case there is no doubt that they were natural and probable witnesses. I am of the opinion that the recovery a of six empties of a revolver from a ditch in the complainant's oil agency also lent support to the presence of P. W. Riasat Ali at the occurrence. I am further of the opinion that these three witnesses also received strong support from an independent and reliable quarter, namely, P. W. Nazir Ahmad.

32. The medical evidence referred to earlier is not inconsistent with the prosecution story. The total number of injuries upon the two deceased has been given as five. Then there is the evidence that the shutter of the gate as well as the tractor were also hit by fire‑arms. In these circumstances the prosecution case that the five accused including the three appellants had first tired and injured the two deceased and thereafter the other five accused fired and hit the tractor and the shutter of the gate could not be said to have been altogether improbable. There was also the probability that some of the shots might have gone stray. In view of these facts and circumstance I do not find any inconsistency between the medical evidence and the prosecution case. Be that as it may the learned Judges have given the benefit of doubt in this respect to the seven convicts and acquitted them.

33. The prosecution case as disclosed by P. W. Sher Muhammad that the assailant while retreating had also fired at their own agency presumably with a view to create a case of right of private defence. This defence was not accepted because the learned Judges of the high Court that they could not rely upon the evidence of P. W. She: Muhammad. The fact, however, remains that it was in pursuance of the statement made by P. W. Sher Muhammad that drums bearing pellets marks and pellets and nozzles were recovered from the agency of appellant Ghulam Muhammad on the same day. These recoveries., as I have already indicated, could not be used in support of the defence case as claimed by appellant Saeed because such defence had 'F not been taken earlier nor was it put to three of the four eye‑witnesses. Disregard of the evidence of P. W. Sher Muhammad does not, in my opinion, in any way affect the truth of the prosecution case.

34. In my opinion, the learned Judges of the High Court have given good reasons for putting the accused in three categories and in distinguishing the case of the appellants from the case of the accused of the other two categories. So far as the five Khichi accused are concerned, the learned Judges have rightly given the benefit of doubt to them on the ground that they live elsewhere and that they were not directly concerned in the business rivals between the complainant party and the three appellants. Besides the only evidence against them is that they, too, had opened fire with their weapons in towards the agency of the complainant after the initial firing hit the two deceased persons and after they had been asked to fire by the other five accused. The allegation that these five were tenants of Ghulam Muhammad rested on the bare statement of complainant P. W. Riasat Ali. The five accused denied that they were tenants of appellant Ghulam Muhammad. The learned Judges have observed that some, of these five accused were Zamindars in their own right and one of there was a Lambardar and a Member of the local council. The learned Judges also observed that of all these persons bad indiscriminately fired at the agency there would have been innumerable pellet and bullet marks on the walls, gates and the drums.

35. As regards the other two acquitted accused, namely, Mahboob Subhani and Zafar Sarwar, there was some evidence to show that the eye‑witnesses except of course P. W. Nazir were inimical and interested qua these two deceased, and therefore it was not considered safe to rely on their evidence implicating these two co‑accused without any corroboration. Having already gone wrong in the appraisement of the evidence of P. W. Nazir, it was obviously not relied on as corroboration.

36. The result was that these seven convicts were given benefit of doubt. Earlier while granting leave to appeal this Court refused to interfere with their acquittal, and the matter must rest there.

37. I may add here that none of the two Courts having found that the evidence of the eye‑witnesses implicating the seven acquitted accused were false, a mere disregard of that part of the evidence of the witnesses that implicated the seven accused as a matter of prudence, did not in any manner affect their evidence with regard to the three appellants before us. In any event in the case of the appellants the evidence of motive furnished corrobora tion from reliable sources.

38. There is no substance in the contention advanced on behalf of the appellants that some material witnesses have not been examined and therefore an inference adverse to the prosecution must be drawn. Except for one person, namely, Muhammad Hussain who was mentioned in the first information report as among the other eye‑witnesses it does not appear from evidence that besides the four eye‑witnesses any one else saw the occurrence. No such person has been suggested on behalf of the defence to any witness. The mere fact that the occurrence took place in an Abadi inhabited by a large number of persons is not any reason to lead to the conclusion that some other persons also saw the occurrence, and if so who they were. On the contrary, P. W. Riasat said in cross‑examination that the Police recorded the r statements of all the neighbours of their agency and that none was a witness in the case because nobody saw the occurrence as it happened inside the agency. The investigating officer A. S. I. Muhammad Hanif (P. W. 21) has also stated that be interrogated toe persons residing in the neighbourhood and that none of them was an eye‑witness.

39. In the facts and circumstances of the case non‑examination of Muhammad Hussain is not a reasonable ground for drawing the adverse inference asked for. Muhammad Hussain was among the five eye‑witnesses mentioned in the first information report. Except him the other four have been examined. Muhammad Hussain among some other persons was given up by the Assistant Public Prosecutor on the ground that he had been won over.

40. Having regard to the facts mentioned above, I am unable to find any fault with the convictions of the three appellants and the sentences passed f on them. The charges have been adequately proved against them, and the High Court has correctly distinguished their case from the cases of the seven acquitted convicts on reasonable grounds.

41. I would, accordingly, dismiss the appeal.

42. HAMOODUR RAHMAN, C. J.‑ --This appeal has come before the Court by special leave granted on the 23rd January, 1973. Mr. learned brethern constituting the Bench hearing the appeal along with me have unfor tunately taken diametrically opposite views. While Salahuddin Ahmed, J. has taken the view teat the appeal should be dismissed, Muhammad Afzal Cheema, J, has come to the conclusion that the appeal should be allowed and convictions and sentences of the appellants set aside. In view of this conflict in their opinions, it has become necessary for me to express my own views.

43. In this case, the facts of which have been elaborately set out by Salahud din Ahmed, J., in the opinion proposed to be delivered by him, there are certain special features to which Muhammad Afzal Cheema, J, has, not unjustifiably, attached considerable importance. I will not repeat the facts of the case in any detail except to point out that in this case ten persons, including the three appellants now before us, were charged for the murder of two persons and the attempted murder of another. Out of these 10 accused, only the three appellants before us were related to each other; being father, son and son‑in‑law. They were 'Arains' by caste. Two other accused, who were also ascribed leading roles on the basis of their political rivalry with the complainant‑party, were 'Gujars' by caste and the rest belonged to the 'Khichi' tribe, living in a different village at some distance. They were brought in as tenants and party-men of Ghulam Muhammad appellant.

44. Out of the two killed, 'Jhanda' was only a servant and the other, namely; Shaft ran an Oil Agency in a co‑partnership with Riasat Ali (P. W. 12) and Nasrullah (P. W. 13).

45. The prosecution story briefly was that at about 1‑30 p.m. of the fateful day, namely, the 19th November, 1967, while Shaft deceased and Riasat Ali were sitting on a cot in the courtyard of their Oil Agency and Jhanda deceased, their servant, was sitting on the ground near them, Nasrullah, the third partner, was dealing with the three customers, Mian Khan (P. W. 14), Nazir Ahmad (P. W. 15) and Muhammad Hussain (not examined at the trial on the ground that he had been won over), all the ten accused, armed with guns, rifles and pistols, suddenly appeared there from the oil Agency belonging to the appellant, Ghulam Muhammad. The latter, along with Mahboob Subhani (acquitted accused) raised a lalkara whereupon Jhanda stood up and implored the assailants not to open fire. In spite of that, all the three appellants, Mahboob Subbani and Zafar Sarwar, the two Gujars, fired their respective weapons causing injuries to Jhanda Shafi and then called upon the remaining accused also to open fire. They resorted to indiscriminate firing.

46. Even though five persons opened fire at first Riasat Ali (P. W. 12), who was sitting next to Shafi miraculously escaped unhurt. He jumped from the cot and took cover in a ditch, only 1 feet deep, near the gate of the Agency. The other witnesses, namely, Nasrullah, Mian Khan and Nazir Ahmad concealed themselves behind some drums. Then Riasat Ali, who was carrying his licensed revolver started firing in the air from the ditch in which he had taken shelter. He fired six shots and the ten accused who were also armed with deadly weapons, such as, guns, rifles and pistols, took to their heels out of fear but while retreating, they continued firing and even at their own agency fired on the empty drums there.

47. As a result of this firing by as many as ten persons Shafi received only two injuries and Jhanda three i.e. only one injury per accused. The injuries found on Jhanda, however, had no corresponding exit wounds although the shots were tired from across the road. The injuries on both, according to the description given by the Doctor, on the other hand, suggest that they must have been caused by rifle shots, because, a bullet was actually recovered from beneath the injury on the chest of Jhinda, embedded in the soft tissue. The injuries on Shafi show that the exit wounds were much larger in size than the wounds of entrance and had averted margins. This again indicates that the injury was caused by a rifle shot.

48. It is, nevertheless, curious that no corresponding exit wounds were found on the body of Jhanda. This would seem to indicate that the shots fired at him must have been fired from a very long distance; otherwise it is difficult to appreciate how the bullet would be found embedded in the soft tissues.

49. The first information of this incident was registered at the Police Station Dera Rahim at a distance of 10 miles from the place of the incident at 4 p.m. The curious thing again about this report, which runs into nearly 2 pages, is that it was first dictated by Riasat Ali (P. W. 12) to Nasrullah Khan (P W. 13). Then it was handed over to another Riasat Ali (P. W. 19), who carried it to the Police Station.

50. The motive alleged for the crime was three‑fold. Firstly, there was some business rivalry on account of the opening of the complainant's Oil Agency. Secondly, the appellant Ghulam Muhammad suspected that the deceased Shafi was carrying on en illicit affair with his daughter, the wife of the appellant. Rahmat Ali and sister of Saeed Ahmad and, thirdly, that the complainant‑party and the acquitted accused, Mahboob Subhani and Ghulam Muhammad, had political rivalries.

51. The rest of the five accused, as already stated, were said to be tenants of Ghulam Muhammad and party‑men of Mahboob Subhani.

52. Apart from the injuries on the two deceased, pellet marks were also found on the shutters of the gate of the Agency, and on a tractor standing there. No other injury on any wetness or any other pellet marks were discovered in spite of the alleged indiscriminate firing by ten persons. Nevertheless, it appears that on the same day when the police arrived there to investigate, they also went to the Agency of the appellant, Ghulam Muhammad and took into possession five drums having pellet marks on them, some pellets and some nozzles, presumably of bullets.

53. From the place of incident, only six revolver empties, said to have been ejected from the revolver shots of Riasat Ali fired in the air, we recovered. No other empty was recovered from any other place, but after their arrest the accused produced four guns, four rifles and one revolver These were duly taken into possession by the police but none of these were sent to the Ballistics Expert, even for examination as to whether they had any smell of gun‑powder or showed traces of having bee a recently used.

54. The prosecution in the F. I. R. offered no explanation for the pellet mark found at the oil agency of the appellant, Ghulam Muhammad, but sub sequently a person called Sher Muhammad (P. W. 16), who was not named in the F. I. R., was produced to depose that he had seen the appellant retreating from the complainant's agency and firing at their own agency and hitting the drums there.

55. The ocular testimony in this case was furnished, apart from Riasat Ali (P. W. 12), by Nasrullah Khan (P. W. 13), a partner of the deceased, as also a brother‑in‑law of Riasat Ali (P. W. 12), another partner and a nephew of the deceased Shafi, Mian Khan (P. W. 14), and alleged customer, as also a first cousin of the deceased Shafi, Nazir Ahmad (P. W. 15), who is not related to the deceased and finally Sher Muhammad (P. W. 16), who only saw the appellants retreating after the incident and firing at their own agency.

56. Notwithstanding the above‑mentioned inherent improbabilities in the prosecution story the trial Court accepted the same and convicted all the ten accused. Five, namely, the three appellants. Mahboob Subhani and War Sarwar were sentenced to death and the rest to transportation for life, but on appeal and reference the High Court took the view that since all the prosecution witnesses were not only related and interested but they had been guilty of casting the net too wide and roping in a large number of persons who could have bad no possible connection with the incident, maintained the conviction of only the three appellants now before us and acquitted the rest.

57. Apart from this the prosecution, witnesses were also found to have exaggerated the number of shots fired at the complainant‑party and prevaricated with regard to the status of the 'Khichi' accused. One of them was found to be a Lambardar and the others were actually Zamindars and not mere tenants, as alleged by the prosecution, either of Ghulam Muhammad, appellant, or any one else.

58. The High Court, however, while substantially rejecting the prosecution story and partly accepting the defence version, set up a theory of its own to the following effect:‑

59. "The above discussion shows that Ghulam Muhammad. Saeed Ahmad and Rehmat Ali were the most likely persons to have attacked the complainant party in the latter's Agency as a measure of retaliation of earlier ineffective firing by the complainant party at their Agency... It appears to us that it was a sudden flare up in which the complainant party acted indiscreetly and then there was the retaliatory firing at their Agency. All this in a way shows that till the clay of occurrence there was no motive for Ghulam Muhammad and his relations to kill anybody from the complainant's side and also the eye‑witnesses to have falsely implicated them namely, Ghulam Muhammad, Saeed Ahmad and Rehmat Ali. Even accord ing to the statement made by S teed Ahmad about the sudden attack on their Agency, they were the most likely persons to counter attack."

60. This also shows that the motives alleged for the crime were not accepted by the High Court.

61. The High Court, having found that the witnesses were related and interested, rightly took the view that and unless such evidence was corroborated by other independent evidence, it could not form the basis of conviction of the accused‑and gave the benefit of doubt to as many as seven of the accused persons.

62. Nevertheless, it maintained the conviction of the three appellants purely on the surmise that:‑‑

63. "The time of occurrence is such that Ghulam Muhammad his son and son‑in‑law were the likely persons to be present in their own Agency to sell their merchandise."

64. Because of this possibility it carne to the curious conclusion that the ocular account given by the same witnesses, who, were not only related and interested, but had also been guilty of exaggeration and prevarication did not need any strong corroboration, either "for the reason that some other accused have been acquitted", because they have only been given benefit of doubt; or on the ground of so‑called interestedness. I regret my Inability to accept such a novel proposition. If corroboration of oral testimony of a witness is necessary then such corroboration must come from the independent evidence, either oral, documentary or circumstantial but pot from mere conjectures. It would indeed be a dangerous principle if we were to convict persons merely on the presumption that because they are related they must have participated in the crime.

65. In spite of this quality of the evidence, my learned brother, Salahuddin Ahmad, J., has taken the view that since Nazir Ahmad is neither related to nor interested in the deceased his evidence furnishes adequate corroboration of the evidence of the other witnesses.

66. It appears, however, that Nazir Ahmad lives in the same village as Mian Khan (P. W. 14) and as pointed out by the High Court, Riasat Ali (P. W. 12) avoided answering a number of questions put to him to establish that Nazir Ahmad was his party-man and bad been cited as a witness by him In several criminal cases. The High Court has, from this, concluded that Nazir Ahmad (P. W. 151 is also an interested witness. Unfortunately my learned brother has not noticed this evidence.

67. Apart from the question of the interestedness of the witnesses, soy personal view in this case is that neither Nazir Ahmed nor any other witness was a reliable witness in so far as they all had supported the prosecution case with regard to the implication of all the ten accused and had been equally guilty of prevarication. If, as stated by Nazir "suddenly all the accused came and stood in front of the Agency across the road and opened fire from there", then the number of injuries and pellet marks actually found p clearly establish exaggeration. The possibility of shots having gone astray, as has been surmised by my learned brother, Salahuddin Ahmed, J., is difficult to accept in such a situation. Even if they had gone astray, there would have been many more pellet marks near or upon the walls of the Agency and the drums lying there and again if, in fact, ten persons armed with guns, rides and revolvers had come there to kill their enemies not a single person would have escaped., The story that the shots fired by Riasat Ali in the air scared them away is unbelievable. Even if Riasat Ali at first escaped, they could have followed him and. finished him as well if the motive alleged by the prosecution had any basis at all. People armed with rifles and guns could have fired at hire effectively even from a distance well outside the range of a revolver.

68. In so far as Nazir has supported such a story, I am inclined to think that his credibility too is doubtful.

69. I am also inclined to take the view that Riasat Ali (P. W. 12) was not there at all at the time of the incident, but he came later. If there was no apprehension of any danger and the attack by the accused party was a sudden one then, why was he armed with a revolver and again why was his revolver not taken into possession and sent to the Ballistics Expert to fine out if the bullets recovered from the ditch did in fact match? This would have been very strong corroboration of his presence at the spot. The fact that the Investiga ting Agency omitted to do so would seem to smuggest that perhaps he came there later and then after deliberation prepared the F. I. R. roping in as many of his enemies as he possibly could.

70. The crude attempt made to explain the pellet marks arid the recoveries from the Oil Agency of the appellant, Ghulam Muhammad, through the evidence of Sher Muhammad, has been rightly, in my view, rejected by the High Court.

71. I regret, however, that I cannot agree with the High Court that the degree of corroboration required in such cases differs according to the possibility of the presence of the accused at the place of the incident. The sole reason given by the High Court for maintaining the convictions of the appellants is that their presence at their Agency at this time of the day was probable in connec tion with the sale of their merchandise. Even if there be any possibility of the father and son being there why should the son‑in‑law be also present at the shop of the father‑in‑law. The mere fact that he is a son‑in‑law, does not necessarily involve him in the business of his father‑in‑law. The conjecture made was itself, in my view, wholly unreasonable.

72. I have no manner of doubt in my mind that the prosecution witnesses in this case, who roped in a large number of innocent persons who had no connection whatsoever with the crime and were guilty of exaggerating the slumber of shots fired at the place of the incident and suppressing the' manner in which the incident began had deliberately concealed the truth and could not, therefore, be relied upon.

73. For these reasons, I would support my learned brother, Muhammad Afzal Cheema, J., that the appeal has to be allowed, the convictions of even these appellants set aside and they be set at liberty forthwith, if mot required in any other connection.

74. MUHAMMAD AFZAL CHEEMA, J.‑ I have had the advantage of going through the judgment recorded by my learned brother Salahuddin Ahmed. J. but have not been able to pursuade myself to concur in my Lord's ,findings.

75. The three appellants herein namely, Ghulam Muhammad, his son Saeed and dais son‑in‑law Rehmat Ali were tried alongwith seven other co‑accused for the murders of Shafi and Jhanda deceased arid the attempted murder of Riasat Ali P. W.

12. The occurrence took place at the Diesel Oil Agency of Shafi deceased and Riasat Ali P. W. on 19‑11‑1967, at 1‑30 p. m. in village Kamir, ten miles away from Police Station, Dera Rahim, District Sahiwal. Riasat Ali P. W. who escaped unhurt, instead of himself going to the Police Station adopted a rather unusual procedure and sent a detailed report in writing through his name sake Riasat Ali P. W. 19 who was examined for the first time at the trial. The F. I. R. was recorded at 4.00 p. m. at the Police :Station.

76. The ten accused formed an unusual assortment falling into three categories, the first set being that of the appellants who were closely related Enter se and were Arains by caste, the second was that of Mehboob Subhani and Zafar Sarwar accused who had political rivalry with the complainant party being Gujjar by caste, and the third comprised five accused of Khhichi tribe who lived in a different village at some distance and were allegedly the tenants and hirelings of Ghulam Muhammad appellant. The learned trial Judge convicted all the ten accused of whom five, namely, the three appellants and Mehboob Subhani and Zafar Sarwar were sentenced to death while the five Khhichis were awarded the lesser penalty of transportation. The High Court acquitted seven accused and maintained the conviction of the three appellants, commuting their death sentence to transportation for life and awarding a fine of Rs. 5.000 each. They filed appeal No. 142 of 1972 in order to challenge their conviction and sentence. Riasat Ali complainant also challenged the acquittal of the seven accused through petition No. 180 of 1972 which was dismissed in limine. A revision petition No. 3 of 1973, was then filed which too was not pressed at the time of arguments and thus stood disposed of.

77. Leave was granted to consider the contention that the uncorroborated evidence of partisan character resulting in the acquittal of seven co‑accused, did not warrant the conviction of the appellants whose case was identical with that of the acquitted accused.

78. The facts of the prosecution case find a detailed narration in the judg ment of my learned brother and therefore, do not need an elaborate production. Suffice it to say that ten accused armed with rifles, guns and pistols allegedly launched the attack at midday at the Oil Agency of Shall deceased and his nephew Riasat Ali P. W. when they were sitting on a cot smoking huqa with Jhanda their servant sitting on the ground in front of them. The attack was opened by the three appellants, Mehbub Subhani and Zafar Sarwar who effectively fired at Shall and Jhanda deceased when the latter in vain, implored them not to attack. Jhanda received three shots and died instantaneously while two shots hit Shafi who succumbed to his injuries later. The other accused also opened fire and all the ten then fired indiscriminately. Riasat Ali P. W. took shelter in a ditch and fired six shots with his pistol in self defence. Bullet and pellet marks were found at the gate, the shutters and. the walls of the Agency as also on the tractor parked there.

79. The occurrence was witnessed besides Riasat Ali who is the nephew of Muhammad Shafi deceased, by Nasarullah P. W. 13, a brother‑in‑law of Riasat Ali, Mian Khan P. W. 14, a cousin of Muhammad Shafi deceased and Nazir Ahmad P. W. 15, their partymen. Mian Khan and Nazir Ahmad P. Ws. and one Muhammad Hussain who had reportedly come to purchase oil from the Agency which was being supplied to them by Nasarullah P. W. when the attack was launched and they alt took shelter behind the drums lying inside the Agency.

80. A three‑fold motive, namely, business rivalry, political rivalry and the suspicion of Shall deceased having illicit connection with the daughter of Ghulam Muhammad appellant was alleged in the F. I. R.

81. In the course of investigation, some bullet marks were also seen by the Police on the drums lying in front of the Oil Agency of Ghulam Muhammad appellant which is not far away from the scene of the occurrence, namely, the Agency of Muhammad Shall deceased and Riasat Ali P. W. There were sought to be explained away by Sher Muhammad P. W. 16, whose name was not mentioned in the F. I. R. as an eye‑witness. According to him, the assailants while retreating to the Oil Agency of Ghulam Muhammad kept on firing and some of the shots hit the drums lying in their own Agency.

82. Medical exidence revealed four fire arm wounds, two of inlet and two of outlet on the person of Muhammad Shafi. The first inlet wound was x 1/3' on the left side of upper abdomen 2" below the last rib with an exit wound on the right flank 3" above the iliac crest 3"x 2" (omentum was coming out). The second inlet wound was circular situated on the hack of left wrist above the joint opening on the front aspect of the forearm in causing am exit wound '' with averted margins.

83. Jhanda was found to have sustained three‑fire arm wounds of enterance on the front of left lower chest 2 " below the nipple, 1 "x " on the front of left lower chest x " and another x ' one inch medial to injury No. 1, 1 " x ". A bullet found embedded in the left kidney was removed by the Doctor.

84. Before coming to the precise point for determination arising in this case, it is necessary to examine some extraordinary and rather peculiar features of the case which in my humble opinion are quite relevant having a direct bearing on the point in issue. As mentioned earlier, a three pronged motive was mentioned in the F. I. R. for the alleged assault, namely, business rivalry, political rivalry and the suspicion of a liasion between Muhammad Shafi deceased and Ghulam Muhammad appellant. This latter part of tae motive was disbelieved by the High Court. The two‑fold rivalry was not something new which should have suddenly erupted but was in existence for quite sometime past and apparently, therefore, did not offer an immediate motivation for the attack. As rightly observed by the High Court, there must have been an immediate motive and something must have transpired to spark off the incident. Surprisingly enough, a reference is conspicuous by its absence in the entire prosecution version to the immediate cause which may be anybody's guess. It would not be out of place to refer in this context to the relevant portion of the statement of Riasat Ali who appeared as P. W.

12. In answer to questions cut to him by Qazi Aziz Ahmad, defence counsel, he observed "Before the occurrence no dispute arose between us and Ghulam Muhammad accused on the opening of the Agency by us. On the day of the occurrence also no such dispute had occurred. The accused were in search of any opportunity when I and Shafi deceased should be together at our Agency and since I and Shafi deceased happened to be together at our Agency on the day of occurrence, the accused launched an attack on us. The accused wanted to murder me and Shafi deceased. I and Shafi deceased had been together at our Agency prior to the day of the occurrence also but the accused did not attack us probably because they did not get together". This hardly carries conviction. Rather it inevitably follows that the prosecution has suppressed an important aspect of the incident which if revealed would have gone a long way to help in the appreciation of the correct position and a presumption adverse to the prosecution could be justifiably raised on account of this suppression.

85. Another glaring fact which at once attracts attention is the rather unusual conduct of and the course of action adopted by Riasat Ali, the first informant who is a star witness of the prosecution in the case being also a witness of most of the recoveries in addition to being an eyewitness. On his own showing, at the relevant time, he was sitting on the same cot with Shafi deceased when both were smoking huqa while Jhanda deceased, their servant was sitting on the ground in front of them. They were surprised by a contingent of ten armed men carrying fire arms five of whom, namely, the three appellants, Zafar Sarwar and Mehboob Subhani fired at them after taking aim. Shafi and Jhanda were killed while Riasat Ali had a hairbreadth escape by jumping into a ditch 1 feet in depth and fired in self‑defence six shots with his revolver which he incidentally happened to carry. All the four eye‑witnesses, namely, Riasat Ali (P. W. 12), Nasarullah (P. W. 13) Mian Khan (P. W. 14) and Nazir Ahmad (P W. 15) of whom Nasrullah brother‑in‑law of Riasat Ali who would have been an equally welcome target for the assailants, escaped unhurt three having taken shelter behind the drums. It does not stand to reason that ten assailants armed with tire‑arms having come with the avowed object of killing Shall and Riasat Ali after prior ascertainment of their presence with Jhanda, should not have crossed the gate of their Oil Agency and after having killed Shah should not have pursued Riasat Ali to the bitter end who on his own showing was able to take shelter in feet deep ditch close to the gate of the Agency. But the matter does not end here. The subsequent conduct of Riasat Ali assumes a rather extraordi nary posture straining credulity to the utmost. As a leading member of the complainant party being himself an eye‑witness of the bloody drama one would normally expect him to personally rush to the Police Station and promptly lodge the report giving an eye‑witness account, leaving the other eye‑witnesses to look after the dead bodies. He does nothing of the kind and neither proceeds himself nor sends his brother Ghulam Sarwar to report the matter at the Police Station, nor even drafts the report. On the other hand, he adopts a rather extraordinary course and sits down to dictate the report to Nasrullah P. W. giving the minutest details of the occurrence including the names of the assailants, the weapons wielded and their calibre, of course found to be incorrect in some cases, and the role individually played by each of them. He denied the suggestion made to him during cross‑examination that he had adopted this novel procedure to justify the presence of Nasrullah P. W. Having reduced into writing this detailed report running into 2 typed pages, he entrusts it to another namesake of his merely to act as a messenger for carrying the report to the Police Station. Surprisingly enough, this second Riasat Ali (P. W. 19) was withheld during inquiry and was produced for the first time in the Sessions Court during trial. What really prevented P. W. 12 from adopting a more normal and natural course remains unexplained and one is inevitably led to think that this star witness of the prosecution was labouring, under a strong inhibition. He had admittedly read upto the 5th or 6th Class whereas Nasrullah P. W. whom he dictated the report had studied upto Intermediate. It was suggested to him that in fact the F. I. R. was dictated by Ahmad Bakhsh Thanedar, who was already present at the spot. Of course the suggestion was denied by him. Be that as it may, however this unusual conduct certainly calls for a cautious and rather sceptical approach.

86. Another outstanding fact which stands established beyond doubt is that in his well‑considered and carefully drafted report, Riasat Ali complainant had tried to cast the net as wide as possible. I have already referred to the three different sets of accused roped in. The occurrence took place at 1.00 p. m. and the report was lodged after three hours at a distance of six miles which could have been covered on cycle within an hour or so. Although according to the prosecution case, after the attack was opened by the batch of five accused including the three appellants, all the ten assailants fired indiscrimi nately with their respective weapons, yet this position does not appear to be established by the extent of damage done. No report of the Forensic Expert was placed on the record to establish that the empties, the pellets and the pieces of lead picked up from the spot were wedded to the various arm recovered at the instance of the accused. Not a word has been brought on the record to show as to how were all the tin accused belonging to different sets, tribes and villages brought together at the Oil Agency of Ghulam U Muhammad appellant before the occurrence which took place at midday in a populous locality. Again it is the case of the prosecution that Riasat Ali P. W. was the main target and before opening fire not only had the appellants challenged Shafi deceased and Riasat Alt P. W. that they were going to be killed, but all the three aimed at Riasat Ali who had a miraculous escape by taking shelter in a 1 feet deep ditch close to the gate of the Agency. Surpris ingly enough having got the opportunity of a life tine to kill their archenemy the assailants do not chase him. The empties allegedly fired from his licensed revolver in self‑defence and later stated to have been recovered by the Police in the evening were not sent to the Forensic Expert alongwith the revolver for purposes of comparison. The five Khhichis who belong to the party of Ghulam Muhammad and were also stared to be his tenants had been specially summoned from their village for this mission. The two sets of other accused namely, Ghulam Muhammad, his son Saeed and his son‑in‑law Rehmat Ali appellants, and Mehboob Subhani and Zafar Sarwar Gujjars also allegedly joined hands to take this opportunity of setting their own score. The five Khhichis and two Gujjars were acquitted by the High Court as their participation was not found free from doubt. The damage done, the empties recovered and the bullet and pellet marks go a long way to establish that the number of assailants was less than ten and in all probability some innocent persons had been deliberately roped in by the complainant.

87. An equally baffling circumstance in the series is the existence of bulle marks on five drums lying outside the Oil Agency of Ghulam Muhammad appellant. A piece of lead P. 7 a nozzle P. 7‑1, two pieces of brass P. 8/1 2, and eight pellets P. 9/1‑8 were recovered by the Police from within these drums. Besides the gate of the Oil Agency of Ghulam Muhammad also bore 11 bullet marks. All this was sought to he explained away by the pro secution through the statement of Sher Muhammad P. W. according to which the assailants while retreating kept on firing and probably fired at their own drums with a view to concoct the defence version. Neither the F. I. R. despite W its embellishment and elaboration contained any reference to these marks or explanation thereof nor for that matter was Slier Muhammad mentioned as one of the eye‑witnesses as he subsequently claimed to be. No doubt, soon after his arrival at the spot, the Sub‑Inspector recorded the statement of this witness but in view of the fact that the F. I. R. was an extraordinarily elabo rate and carefully drafted document, the omission of the name of Sher Muhammad as one of the eye‑witnesses assumes special significance and does not stand satisfactorily explained away by the fact that he appeared before the Police soon after its arrival. The learned Judges of the High Court listed in their judgment as many as eight grounds for disbelieving Sher Muhammad one of these being that admittedly in a murder case in which Sher Muhammad was a complainant, Riasat Ali and his partymen bad appeared as prosecution witnesses. But even though some of the grounds taken by the High Court might be capable of being explained away, others would still be good enough to justify the rejection of the testimony of this witness. It would be pertinent to mention in this context that while rejecting the explanation offered by Sher Muhammad of the existence of marks on the drums and the gate of the shop of Ghulam Muhammad appellant, the learned Judges expressed the view that in all probability, the complainant party had taken the initiative and fired towards the shop of Ghulam Muhammad appellant hitting the drums and the shutters and the accused party had attacked them in retaliation. This hypothesis, it may be observed with respect, bas neither any basis in the record nor in common sense. If in point of fact the complainant party had, taken the initiative, they would have been fully prepared to take on the retaliatory attack and to meet all eventualities. On the other hand, it is the prosecution's own case that Shafi and Jhanda deceased were shot almost like sitting ducks.

88. Lastly, it may be pointed out that according to the prosecution version as it finally crystallized the shots fired by Zafar Sarwar and Mehboob Subhani had hit Shafi deceased and yet despite this particularization and direct fixation of responsibility, both were acquitted by the High Court.

89. It is in the context of the above background that the correctness or other wise, of the view taken by the High Court in distinguishing the case of the three appellants from that of their acquitted co‑accused has to be examined. All the eye‑witnesses were found to be interested and in accordance with the rule of prudence, which by consistent observance has almost assumed the status of a rule of law, it was considered necessary to look fo independent corroboration before placing reliance on their testimony. No corroboration whatever was available in the case of the seven acquitted accused. However, the learned Judges distinguished the case of the three appellants on the ground that they shared the motive and their participation appeared quite probable. Reliance was placed in this regard on Nazir's Case (P L D 1962 S C 269). Surprisingly enough in that case wherein nine accused were tried for six murders, the tenth having turned an approver, six were convicted by the Sessions Judge. The conviction based on the testimony of interested witnesses vas upheld by the High Court as having been corroborated by these circumstances:

90. Firstly, that the number of accused named appeared to be in accordance with a reasonable requirement of the situation, and

91. Secondly, that the persons named as culprits were such as would be ex pected to join in the attack. The Supreme Court upheld the conviction of five out of six, giving benefit of doubt to one of the convicts owing to tender age, although the assault was made to avenge the murder of his father. On the contrary, in the instant case seven out of ten accused have been acquitted by the High Court and the balance has been tilted against the three appellants by the existence of a comparatively stronger motive and the probability of their participation on that account, whereas I have already referred to the possibility of false implication of some innocent persons.

92. Having already referred to a host of doubtful circumstances in the case, I am humbly and respectfully of the view that mere probability of participation on account of the existence of a strong motive is too insignificant to outweigh them so as to set at rest genuine suspicions which should assail the judicial mind in the circumstances of the case. The foundation of the case was laid by Riasat Ali P. W. who was not only an interested witness in every sense of the term but was also demonstrably falsified by making futile efforts to suppress patent facts, including his relationship with Shafi deceased. His miraculous escape when ten gunmen bad allegedly come with the definite object of taking his life, three having taken the aim at him, the delay in the lodging of the report, the novel procedure adopted by him in dictating it to Nasrullah P. W. and sending it through a stranger despite the availability of five eye‑witnesses, its inherent weaknesses and improba bilities such as the suppression of the genesis of the occurrence, omission o any reference t6 the bullet and pellet marks on the drums lying outside the oil Agency of Ghulam Muhammad appellant, the roping in of all his enemies and the probability of false implication of some, Zafar Sarwar one o the acquitted accused having been placed in column No. 2, and lastly, the conspicuous absence of a single disinterested witness of this midday occurrence which took place in a most frequented part of the locality, strongly militate against the correctness of the prosecution version. One would not be surprised if this star witness was not at all present at the spot and bed subsequently arrived from his village only a mile and a half away from, the scene of occurrence, and then came out with a fabricated and distorted version in collusion with the local Police.

93. In my humble opinion, therefore, there is hardly any analogy between this case and the case of Niaz (P L D 1960 S C 387) explained in that of Nazir (P L D 1962 S C 269). In fact the principles laid down in Muhammad Sher and another v. The Crown (P L D 1954 F C 84). Thoba and another v. The State (P L D 1963 S C 40) and Bagh Ali and 4 others v. The State (P L D 1973 S C 321) are more relevant and can be appropria tely invoked in the circumstances of the case. In view of the acquittal of seven out of ten accused, for the maintenance of the conviction of the three appellants on the basis of testimony of interested witnesses, insistence on independent corroboration became all the more imperative which is tact forthcoming. In fact, as discussed earlier, the entire case appears to have been built on a very weak foundation.

94. As a result of the above discussion, I would accept this appeal and set aside the conviction and sentences of the three appellants.

ORDER OF THE COURT

95. In accordance with the opinion of the majority, the appeal is allowed, the conviction and sentences of the three appellants are set aside and they are set at liberty forthwith, if not required in any other connection.

96. S. A. H. Appeal accepted.