ALI NAWAZ AND 2 OTHERS Versus THE STATE

1. The appellants and co-accused Mir Hassan and Mehram were charged under sections 302, 387, 147, 148 and 149, P.P.C. and were tried before the learned Ist Additional District and Sessions Judge, Nawabshah, who has convicted appellants Ismail and Ali Hassan under section 302/34/149 P.P.C. and sentenced them to suffer imprisonment for life and fine of Rs.5,000 each in default to undergo further R.I. for one year, appellants Ali Nawaz, Ismail alongwith Ali Hassan have also been convicted under section 307 read with section 34, P.P.C. and sentenced to suffer R.I. for seven years and fine of Rs.5,000 each or in default to suffer further R.I. for six months. The fine if recovered, 50% of the same was to be paid to the legal heirs of deceased Qurban Ali. The appellants were allowed concession under section 382(B) Cr.P.C. All the sentences were ordered to run concurrently.

2. The brief facts of the prosecution case are that on 1-10-1983 one Samandar Khan lodged a report at P S. Kazi Ahmad District Nawabshah, inter alia, alleging therein that Hakeem and Lal Bux by caste Abro are his Haris. About two months back a quarrel had taken place between Lal Bux Abro and Mir Hassan over widow Abdur Rehman Abro named Mst. Sahabzadi and her daughters Mst. Pathani Mst. Sarn and Arbab Zadi. The above women were produced before the Court of Civil Judge, Sakrand, and the Court handed over the custody of the women to Lal Bux. On this Mir Hassan and others were annoyed. They came to the complainant and others and asked them to eject Lal Bux from land. The complainant told them that "you both the parties are related inter se, they have nothing to do with any one." On which they observed that it will not be good for them. Today in the evening, the complainant, his brother Qurban Ali, and Ahmad son of Allah Dine Abro were returning on Motor Cycle. When they reached Inspection Path of Ujjah Canal near land of Sirai Ismail Parhyar they found that branches of trees were placed ahead on the Inspection Path. They alighted from Moter Cycle and started removing the branches. In the meanwhile at about 5-30 p.m. Mir Hassan son of Darya Khan and Mehram son of Khanu armed with country-made pistol. Ali Nawaz son of Dino armed with hatchet. Ali Hassan son of Dino and Ismail son of Ibrahim all caste of Abro armed with Lathis emerged out from burrow-pits. Mir Hassan abused and observed that they had prevented the complainant party from backing Ahmad and others, saying so Mir Hassan and Mehram fired on them point-blank and Qurban Ali and Ahmad were injured. Ali Nawaz inflicted hatchet blows to Ahmad. Ali Hassan and Ismail inflicted Lathi blows to Ahmad and Qurban. They raised cries on which Mohammad Bachal and Mohammad Urs Parhyra came running raising cries. They also witnessed accused inflicting blows to Qurban and Ahmad. The accused then went away abusing through the burrow pits. Thereafter they saw that Qurban Ali had sustained pistol shots on his abdomen, arms and other parts of his body. He had also received Lathi blows on his head from which he was bleeding. Ahmad had sustained hatchet and Lathi injuries on his head and other parts of his body. Leaving the above witnesses at the dead body, he carried injured to hospital Kazi Ahmad. After leaving the injured there, he went to the police station and lodged the report.

3. The above F.I.R. was recorded by Naseer Hussain Shah A.S.I.P. and the same has been produced as Exh.13. On 2-10-1983 Naseer Hussain Shah visited the Wardat which was near Mashaikh Shakh, prepared Mashirnama of Wardat and secured one empty and ore live cartridge and sealed the same. He also secured blood-stained earth from the Wardat, prepared such Mashirnamas which has been produced as Exh.27. Due to election he could not visit the site on 1-10-1983. He had prepared inquest report of the dead body of deceased Qurban Ali which has been produced as Exh.36. He had also visited Civil Hospital Kazi Ahmad on 1-10-1983 and prepared Mashirmana of injuries on the person of Ahmad and the same has been produced as Exh.26. He sent the dead body for post-mortem. He examined PWs Mohammad Bachal and Mohammad Urs at the Wardat. He went to the houses of the accused but they were not available there. He searched the houses of accused Mir Hassan and Ismail but nothing was recovered he prepared such Mashirnama which have been produced as Exhs.37 and 38. On 19-10-1983 he sent a letter to Tapedar for Site Inspection. On 22-10-1983 accused Mir Hassan, Ali Nawaz and Mohammad Ismail were produced at P.S. by Gulah Jam, he arrested them under Mashirnama which has been produced as Exh.39. On interrogation accused Ali Nawaz agreed to produce one hatchet and led him and the Mashirs to his house, produced the same from the western side of his hedge. The hatchet was not blood stained. He prepared such Mashirnama and the same has been produced as Exh.29. Accused Mohammad Ismail produced Lathi which was also not blood-stained. He secured the same, prepared such Mashirnama which has been produced as Exh.28. On 4-11-1983 he arrested accused Mehram and Ali Hassan from Kazi Ahmad Bus-stand in presence of Mashirs and prepared such Mashirnama which has been produced as Exh.22. After interrogation accused Mehram led him and the Mashirs to Jungle near Railway Line, Kazi Ahmad, and produced a pistol from reed bushes. He secured the pistol, sealed it, and prepared such Mashirnama which has been produced as Exh.23. Accused Ali Hassan led Police and Mashirs to his house and produced Lathi from his hedge which was not blood-stained, he prepared, such Mashirnama and the same has been produced as Exh.24. On 5-11-1983 he produced PWs Mohammad Urs, Mohammad Bachal. and Ahmad before Mukhtiarkar, Nawabshah and got their statements under section 164, Cr.P.C. recorded. The accused were also brought before the Mukhtiarkar for cross- examination, but no notice was given to them in writing. He had filed a separate case under section 13-D of Arms Ordinance against accused Mehram. After investigation the accused were challaned before the Court.

4. A forma: charge was framed against the appellants and the co-accused to which they pleaded not guilty.

5. At the trial prosecution examined complainant Samandar Khan P.W.1, he has produced the F.I.R. as Exh.13, Ahmad an injured eye-witness PW.2, Mohammad Urs an eye-witnesses P.W.3, he has produced his 164, Cr.P.C. statement as Exh.16, Mohammad Bachal an eye-witness P.W 4, he has produced his 164, Cr.P.C. statement as Exh.18, PC, Ahmad Khan P.W.5, Mashir Ali Mohammad P.W.6, he acted as Mashir of arrest of accused Mehram and Ali Hassan and has produced the same Mashirnama as Exh.22. Accused Mehram had produced pistol from reed bushes under Mashirnama which he has produced as Exh.23. Accused Ali Hassan has produced Lathi with iron plate from northern hedge of his house which was not blood-stained. Police secured it and prepared such Mashirnama, which he has produced as Exh.24. Mashir Hakim Ali P.W.7, had acted as Mashir of injuries on the person of injured Ahmad and the Mashirnama has been produced as Exh.26. The police had visited the Wardat and prepared such Mashirnama in his presence which has been produced by him as Exh.27. Accused Ismail had led Police and Mashirs to a place and produced one Lathi in his presence which was not blood-stained. He has produced the said Mashirnama as Exh.28. Accused Ali Nawaz produced hatchet from reed bushes in the west of his house. The hatchet was not blood-stained, such Mashirnama was prepared, and he has produced the same as Exh.29. Dr. Mukhtiar PW.8 had conducted post-mortem on the dead body of Qurban Ali and the post-mortem has been produced as Exh.32. He had also examined injured Ahmad and has produced the initial medical certificate as Exh.33 and final medical certificate as Exh.34. A.S.I.P. Naseer Hussain Shah PW.9 he had conducted the investigation and challaned the case. Tapedar Mohammad Ibrahim P.W.10, he had prepared the sketch of Wardat and the same has been produced as Exh.44.

6. After close of the prosecution case the statements of the accused were recorded in which they denied the allegations, and further stated that they were innocent and were implicated due to enmity. The accused examined one Ahmad in their defence. When the case was fixed for judgment two of the accused namely Mir Hassan and Mehram absconded, and, therefore, the process was issued against them but the same could not be served, therefore the judgment was passed against present appellants on 11-8-1986 by which they have been convicted as described above. The present appeal is directed against the above judgment of conviction.

7. Dr. Mukhtar Ahmad who had conducted post-mortem on the dead body of deceased Qurban Ali had found the following injuries on his person on external examination:-

(1) Lacerated punctured wound 1.5 cm in diameter over the left side of arm. The wound was traversed internally in muscular tissue. There was no charring.

(2) Lacerated punctured wound 1 c.m. in diameter over the left side of chest, below the axilla. Wound traversed deep in the chest. No charring, no sooting present. Margins were inverted. (wound of entrance).

(3) Lacerated punctured wound 1 cm in diameter over the right side front of lower abdominal wall. No charring, no sooting present. (Wound of entrance).

(4) Lacerated punctured wound 1.2 cm in diameter. Margin everted, over the back side of the injury No.3 wound through and through (wound of exit).

(5) Lacerated wound 1.5" x 1/2" x scalp deep over the right side of forehead,

(6) Lacerated wound 1.5" x 1/2" scalp deep over the occipital region of scalp.

8. On internal examination he found the following damage:-

9. The right side of abdominal wall was ruptured by punctured wound of pallet and muscle was torn. The wall of the chest was punctured by pallet below the axilla on the left side wound was dissected internally. The left pleurae was ruptured at the upper level and it was filled with blood. The wound was through and through. The left lung was also found lacerated and punctured causing the damage to the vital tissue. The left lung was swollen filled with blood due to rupture of pulmonary vessels. The pallet was found at the left hum of left lung. The stomach was empty, small intestines were containing liquified food material. The scalp was lacerated at the right side frontal region and occipital region.

10. From the external as well as internal examination the Doctor was of the opinion that the cause of death was injury to vital organs such as lung causing severe internal haemorrhage and shock. Injuries Nos. l, 2, 3 and 4 were caused by fire-arm within the range of 30 feet, while injuries No.5 and 6 were caused by hard and blunt substance such as Lathi. All the injuries were ante-mortem in nature. Injury No.2 was sufficient to cause death, while all the other injuries collectively in normal course of life. The death was instantaneous in nature. The time which elapsed between the death and post-mortem was about 16 hours. He issued such post-mortem report and the same has been produced as Exh.32. He had also examined injured Ahmad and found the following injuries on his person:-

(1) Lacerated punctured wounds of 1 cm over (i) Right forearm (ii) front of right shoulder joint, (iii) right dorsum of right little finger, (iv) front of right side chest, (v) gutter-shaped laceration top of right shoulder. Marging inverted, no charring, no sooting present.

(2) An incised wound 7 cm x 1.5 cm x scalp deep curve shaped over the right parieto-occipital region of scalp.

(3) An incised wound 5 cm x 1 cm x muscle deep over the right eye-brow.

(4) Lacerated wound irregular shaped 4 cm x ? cm x scalp deep over the frontal region of scalp.

(5) Lacerated wound 4 cm x 1 cm x scalp deep over the top of the scalp.

(6) Lacerated wound left parietal region of scalp 4 cm x 1 cm x ? scalp deep

11. According to him injury No.1 was simple in nature caused by fire arm. Injuries Nos.2 and 3 appeared to have been caused by a sharp cutting weapon and were grievous in nature. Injuries Nos.2 and 3 were caused by a sharp cutting weapon, whereas the remaining injuries were caused by hard and blunt substance. All the other injuries were simple in nature except Injuries No.2 and 3. The shots were fired within the range of 20 feet. X-ray, chest right shoulder shows pallet and X-ray skull shows the right parietal bone and depressed fracture of left parietal bone. He issued such certificate. He has produced the initial certificate as well as final certificate as Exhs.33 and 34.

12. Complainant Samandar Khan P.W.1 has supported the contents of his F.I R and has further deposed that he went on Motor Cycle upto five miles Bus stop on National Highway, and brought Datsun Pick-up from there He took injured in that Pick-up of Kazi Ahmad Hospital leaving P.Ws. Urs and Bachal over the dead body. Then he went to P.S. and lodged his report. In cross-examination he has admitted that sister of P.W. Urs is married with his brother Bahi Khan Mitto is his cousin. Hakeem Mashir is brother of P.W. Urs. The deceased Qurban Ali and P.W. Urs and Bachal used to reside in the same village Their village will be about one and half furlongs away from the place of incident. There are about 100/150 houses in their village and people of different castes reside there. There are houses of Punjabis about one Furlong away from the place of incident. The accused had fired four shots at them. The ladies named by him above were related to the accused. He has admitted that about 14/16 months after this incident Mst. Arbab Zadi was murdered. Khan father of accused Mehram had made an application to authorities alleging that before them the complainant party had killed her. He has admitted that before this incident 107, Cr.P.C. proceedings were also registered against the persons of both the parties. Khamiso his cousin was murdered about 14/15 months back and Siddique Dayo was accused in that case. He denied that his brother Qurban had got Siddique implicated in this case. It was possible that the gun shot reports and cries might have been heard at their village. When he had returned back from P.S. during the night, many persons had collected there.

13. P.W. Ahmed has deposed that there was dispute between them and accused over the widow of Abdur Raheem Abro and her daughters. Court had handed over those ladies to Lal Bux and Hakeem. Hakeem is his cousin while Lal Bux is his uncle. His further evidence is identical to that of complainant. He has admitted in cross-examination that his wife has filed suit for dissolution of marriage against him but it was filed about two months after this incident. The ladies were at P.S. for about one week: Ladies had made complaint against accused, and then the police had come in motion. PW Bachal was not cousin of complainant Samandar Khan but he is related to him.

14. P.W. Mohammad Urs has deposed that he was cutting grass from his Harap land when the present incident took place. PW Mohammad Bachal was also cutting grass with him. Immediately after PW. Mohammad Bachal started cutting grass they heard cries of 'murder' murder' towards Rain Shakh. They rushed towards that side. When they reached at the inspection path they saw accused Mir Hassan and Mehram armed with pistols, Ali Nawaz had hatchet, while Ismail and Ali Hassan had Lathis. Mehram and Mir Hassan fired at Qurban Ali and they were injured. Ali Nawaz gave hatchet blows to Ahmad, Ismail and Ali Nawaz gave Lathi blows to Ahmad and Qubran. Complainant Samandar Khan was standing at some distance on his Moter-cycle He was raising cries. They gave 'Hakal' to accused asking them not to murder persons but the accused threatened them. The injured then fell down and the accused went away. The complainant then went to bring vehicle leaving him and P.W. Bachal at injured Ahmad and deceased Qurban Ali. He then brought Datsun Pick-up and took injured Ahmad Khan leaving them over the dead body. Many persons had collected at the Wardat during night. Complainant had returned back during night but police came in the morning. In cross-examination he has deposed that he did not know in whose name his Harap land is entered in the record of rights, but he is Hari of the family of Nibhao Khan. The Guwar cultivation where they were cutting the grass will be about 30/35 paces from the place of incident. They heard cries and rushed towards that side whereafter the shots were fired. He denied to have stated in 164, Cr.P.C. statement that they heard cries and firing then rushed towards Wardat. Voluntarily stated that they heard cries and shots were fired thereafter. There is no note by the Court that in 164 Cr.P.C. statement it is stated that shots were fired and cries were raised then they went towards there. His sister was married with Bhai Khan brother of complainant. P.W. Bachal was not related to him but was his caste fellow. Bachal works as carpenter at Kazi Ahmad. He had not cultivated grass. Samandar Khan had also come at the injured persons running and reached at them. Mashir Hakim is his brother. He did not remember if Ismail and Nibhao Khan had also come at the place of incident during night. He denied a suggestion that incident had taken place at 8-30 p.m. He knew Sadiq Unar. Ahmad Sial was his driver on his tractor, Ahmad Sial sometimes resides at his village and sometimes in the village of Sadiq Unar. His village is about one mile away from the place of incident. He denied that Ahmad Sial driver had seen the injured and deceased lying, and informed them and complainant at their village, and thereafter they went there. He denied that he was deposing falsely at the instance of complainant. He also denied that he was not the Hari of Nibhao Khan.

15. The evidence of P.W. Mohammad Bachal is similar to that of P.W. Mohammad Urs. In cross-examination he has deposed that he had stated before police that he had come to cut grass from the cultivation of P.W. Mohammad Urs. He denied to have stated before police that he and Mohammad Urs were working in the land of Sir Mohammad Ismail. They are four brothers. Their father is also alive. They all reside in village Nibhao Khan, the village where the complainant also resides. He had admitted that he works as carpenter in Kazi Ahmad Town. The cries and gun reports could be heard at their village from the place of Wardat. Many persons of nearby villages had collected there after the incident but he could not say after how much time after the incident. They might have arrived before or after half an hour at the place of incident. He denied that incident took place at 8-30 p.m. He also denied that Ismail Siyal driver Sadiq Unar had informed them that Qurban Ali and Ahmad were lying injured and unconscious. Voluntarily stated that Ismail is not driver of Sadiq Unar. Previously Ahmad Siyal was driver on tractor of Sadiq Unar. During the days of incident he was not driver of Sadiq Unar on his tractor. He denied a suggestion that he had not seen the incident. In reply to the question put by the Court he stated that he works as carpenter at Kazi Ahmad Town. That he usually returns back to his village in the evening and goes there in the morning. Sometimes he used to cut grass for his cattle and sometimes some of his brothers as they were joint with each other.

16. P.W. Ali Mohammad Mashir has deposed that police had arrested accused Mehram and Ali Hassan in his presence at Kazi Ahmad Bus Stand, The Mashirnama has been produced by him as Exh.22. Accused Mehram led them and the police had produced one country-made pistol from reed bushes. The place was about 7/8 miles away from Kazi Ahmed. It was sealed in his presence and such mashirnama was prepared which he has produced as Exh.23. Thereafter accused Ali Hassan led the Mashirs and the police to his house and produced iron-plated Lathi from the northern hedge of his house. It was not blood stained. Police prepared such Mashirnama which he has produced as Exh.24. In cross-examination he has admitted that there are hotels and shops at Bus stand at Kazi Ahmad, petrol pump is also near the Bus-stand. People are also available on shops or reeds in between two places. Co-mashir Punhoo is his brother: Their village is about 7/8 miles away from Kazi Ahmad. They had gone to Kazi Ahmad for shopping. Investigating Officer was knowing them before. They were picked up by police while they were sitting in hotel, for arrest of the accused. While passing from the Bus-stand they say' the accused and informed the police that the required persons were available there. The village of the accused is 7/8 miles away from Kazi Ahmad. He denied that on that date he was already in custody of Kazi Ahmad police in connection with one dacoity investigation. But according to him 10/15 days before that he was detained by Kazi Ahmad police as suspect in connection with one highway robbery, but he was found innocent and released. He denied that he was giving false evidence at the instance of the complainant.

17. Mashir Hakim Ali has deposed that he owns Datsun Pick-up which plies on National Highway between Sakrand and Kazi Ahmad. He had acted as Mashir in that case about 2 years back. On that day at about 5-30 p.m. complainant Samandar Khan had hired Datsun for bringing the passengers from Sakrand. They went to the place of Wardat and brought injured to. Kazi Ahmad Hospital. Dead body of deceased Qurban Ali was not taken by them. Police had seen the injuries on the person of injured Ahmad in his presence and prepared such Mashirnama which he has produced as Exh.26. Then he went in the morning to the place of Wardat. Police inspected the Wardat, secured blood-stained earth and sealed the same. Dead body of deceased Qurban Ali was lying there. Police had also secured one live and one empty cartridge from there. He did not remember if one was sealed or both. They had also seen thorns lying on the inspection path. Such Mashirnama was prepared which he has produced as Exh.27. About 20 or 21 days thereafter he had parked his vehicle at Kazi Ahmad Bus-stand in the morning. A constable came and took him to P.S., as vehicle was required by police. They went there and police brought accused Ismail and Ali Nawaz from the lock-up and put them in their Datsun. They came to the village of the accused. Accused Ismail came down and led them and police produced one Lathi from the cattle dungs. It was not blood stained. Police prepared such Mashirnama which he has produced as Exh.28. Thereafter accused Ali Nawaz led the police to his house which was about 2/3 furlongs away from the village of Ismail. He led the police and Mashirs to a place in the northern side of his house and produced hatchet from reed bushes. It was not blood stained. Such Mashirnama was prepared which he has produced as Exh.29. In cross-examination he has deposed that P.W. Urs is his brother. PW. Mitto is cousin of complainant Samandar Khan. The cartridges were lying on the inspection path at the distance of 9/10 paces from the dead body of the deceased. He did not know from where accused Ismail and Ali Nawaz were arrested. There were 5/6 houses alongwith houses of accused Ismail, There were about 50 houses in the village where house of accused Ali Nawaz was situated. He denied a suggestion that he was deposing falsely at the instance of complainant:

18. A.S.I.P. Naseer Hussain Shah PW has deposed that on 1-10-1983 he was A.S.I.P. at Kazi Ahmad. At about 8-00 p.m. Samandar Khan complainant came and lodged the report which he recorded at his dictation, F.I.R. Exh.13. was the same. The rest of the investigation carried on by him has been mentioned in the earlier part of this judgment. In cross-examination he has deposed that Hakim Ali and Mitto Mashirs of injuries of Ahmad are also Mashirs of Wardat, and inquest report. Mashir Hakim Ali is driver of Datsun which he had hired for investigation while Mashir Mitto met them in the hospital. Next day of same Datsun was hired, Mashir Hakim Ali was driving the Datsun, while Mitto was standing on Bus-stand Sukhio Manahio wh'ich is six miles away from P.S. The compiainant after lodging the report was asked to go and to come in the morning. He came in the morning and accompanied with them. None else was present at the Wardat except Urs and Bachal and one constable. The PWs did not show him the place where they were cutting the grass. When he had searched the houses of the accused the same Mashirs were taken. On 3-10-1983 Hakim Ali was with them in Datsun while co-Mashir Mitto was taken from the same Bus-stand. The pistol was produced by accused Mehram from a distance of 3 miles away from P.S. He could not say as to when these articles were sent to Ballistic Expert but the S.H.O. had sent these articles to Ballistic Expert. He denied that he had foisted pistol in order to implicate the accused. He denied a suggestion that no empty or live cartridges were secured from the Wardat. He denied that all the accused were arrested from their villages. He denied that all the Mashirnamas were false.

19. After close of prosecution case the appellants were examined under section 342, Cr.P.C. in which they denied the allegations and have examined witness Ahmad in their defence. He has deposed that he knew deceased Qurban Ali and P.W. Ahmad. He is tractor driver on the tractor of Mohammad Sadiq Zamindar. About 3 years back he was going on tractor to his village and when he reached at Rain Shakh at 8-00 p.m. he saw Qurban Ali lying dead and Ahmad lying unconscious and was bleeding. He then informed complainant, his brother Bhai Khan, P.W. Urs and Bachal as they were present in the Otaq of complainant. The village of the complainant was about 3/4 miles away from the Wardat. Complainant also came with him at the Wardat. P.W. Ahmad was still lying injured and unconscious. The injured was taken away at about 9-30 p.m. and so also dead body at 11-00 p.m. In cross-examination he had deposed that his village is more than 2 miles away from Sadiq's village by road and otherwise one mile. He was taking away tractor to his village from Sadiq's village. He did not pick the injured but he informed the complainant party. One Khuda Bux is his father-in-law and maternal-uncle. He did not know if wife of Khuda Bux was 'Phuphi' of accused Ismail. He knew Usman uncle of accused Ismail. He did not know his relationship with Khuda Bux. He did not know if he is father-in-law of Khuda Bux. He admitted that wife of Ahmad had filed a case of dissolution of marriage against Ahmad. He had heard that she is sister of accused Ismail. He denied that accused Ismail had promised with him that he will give the hand of his sister to him. He (witness) was already married having children. Accused are not his caste-fellow. They are Abro while he is Siyal by caste. He denied that the Abro and Siyal are of one caste. He denied that Mohammad Sadiq had turned him out five months prior to this incident, and one Mevo was engaged as new driver. He did not know about any dispute between the parties. He denied that he was giving false evidence at the instance of the accused.

20. I have heard Mr. A.Q. Halepota Advocate for the appellants, Mr. Zaheer Qureshi, Advocate for the State, and have gone through the R & P of the case.

21. It was contended by the learned counsel for the appellants that the ocular evidence was interested, inimical, contradictory and unreliable. That the F.I.R. was belated and there was no sustainable explanation for the same, and therefore the logical conclusion was that the story was concocted one. The Mashirnama of Wardat does not show that there were any marks of wheels of motor-cycle nor any motor-cycle was recovered from the Wardat. Even P.W.s Mohammad Urs and Bachal have stated in their 164, Cr.P.C. statements that complainant Samandar Khan came running after they had reached at the place of Wardat. P.W. Bacnal was a carpenter and used to work at Kazi Ahmad, he had four brothers who were joint with him and therefore the story that he had gone for cutting grass was absurd and unreliable. That there were no incriminating recoveries from the present appellants and the learned trial Judge had erred in convicting the appellants solely on ocular evidence.

22. The learned Advocate for the State has contended that the ocular evidence was independent, natural and could form basis for conviction.

23. As far as the ocular evidence is concerned, complainant Samandar Khan has admitted that sister of P.W. Urs is married with his brother Bhai Khan. Mashir Hakeem is brother of P.N. Urs, while Mitto is cousin of complainant. P.W. Ahmad is nephew of Lal Bux and cousin of Hakeem Abro who are his Haris. He has denied that P.W. Bachal is related to complainant Samandar Khan. The enmity between P.W. Ahmad and the accused has been admitted and it is the case of complainant Samandar Khan that the accused had asked them to eject Hakeem and Lal Bux from their Harap. On which their relations had become strained, therefore, this is a case where admittedly there is a back-ground of enmity between the parties. P.W. Bachal used to work as carpenter at Kazi Ahmad Town which was about 7/8 miles away from the place of Wardat and it was his case in cross-examination that he used to come to his village in the evening leave for Kazi Ahmed in the morning. That he has three other brothers and a father. That sometimes he used to go for cutting grass, and sometimes his brother used to go for cutting grass. The land from where he was cutting the grass did not belong to him, and therefore, he could very well be said to be a chance witness. So far as P.W. Urs is concerned, he has deposed in Examination-in-Chief that he was Hari of Haji Ismail Parhyar. In cross-examination he has deposed that he was Hari of the said Zamindar since about 10/12 years, but he could not say in whose name his Harap land was entered in record of rights. The Investigating Officer Naseer Hussain Shah has stated in cross-examination that he was not shown the place where P.W.s Mohammad Bachal and Mohammad Urs were cutting the grass at the time of incident. The 164, Cr.P.C. statement of P.W. Mohammad Bachal shows that 'after the accused went away, they went and saw that Qurban Ali had died and Ahmad was seriously Inured. Thereafter Samandar Khan came and made him and Mohammad Urs to sit over the dead body and took injured Ahmad for report'. The 164, Cr.P.C. statement of Mohammad Urs shows that they went to the place of Wardat and entreated the accused not to kill the deceased on which accused told them not to come near otherwise you will be killed, and they went away eastern side in 'Huri' and sugarcane. Thereafter he and Bachal came to injured Ahmad and Qurban out of whom Qurban Ali had died while Ahmad was injured. Samandar Khan also came running and reached there. Samandar Khan left him and' Bachal at the dead body and took injured Ahmad for report. The Mashirnama of Wardat does not show that there were wheel marks of motor-cycle at the place of Wardat or nearabout the same.

24. From the above discussion it is clear that complainant Samandar Khan was not present at the Wardat at the time of incident and he had come later on from his village after hearing gun shots and cries. This is further confirmed by the fact that he did not receive any injury although according to him he was driving the motor-cycle and was sitting in the front, therefore there was no reason for the accused to spare him. Under these circumstances I am of the considered view that complainant Samandar Khan was not present at the Wardat. As far as Mohammad Bachal PW was concerned he was a chance witness and was related to the deceased as well as the complainant. Same is the position with regard to PW Mohammad Urs. So far PW Ahmad was concerned, no doubt he has injuries on his person, and therefore his presence at the Wardat at the time of incident could not be doubted, but mere stamp of injuries on his person will not prove that what he says is nothing but truth. The allegation against accused Mir Hassan and Mehran was that both had fired at the deceased but only one empty was secured from the Wardat. The medical certificate Exh.33 shows that he had arrived at the hospital at 8-00 p.m. and Dr. Mukhtiar Ahmad has deposed in cross-examination that the age of injuries of Ahmad at the time of examination was within 24 hours and therefore there was really no certainty as to whether, P.W. Ahmad had received injuries at 5-30 p.m. on the same day as alleged by the prosecution or had received injuries earlier in some other incident. Looking to the above circumstances of the case and the back-ground of enmity, the ocular evidence in order to form basis for conviction required independent corroboration.

25. As far as the recoveries were concerned, the hatchet recovered from appellant Ali Nawaz and the Lathis recovered from Ismail and Ali Hassan were not blood stained. Even the chemical report Exh.40 does not show that any weapon was sent to the chemical examiner for examination. So far the recovery of pistol was concerned, it was recovered from co-accused Mehram who is not before me.

26. In the case of Lashkari and 4 others v. The State PLD 1981 Kar. 1 it was observed by a Division Bench of this Court that:

27. "Evidence Act Section 7 -- Corroboration, Rule in regard to corroboration of evidence of interested and inimical witness although ,rule of caution yet virtually ripened into a rule of law. "

28. In the case of Ghulam Sikandar and another v. Mimraz Khan and others PLD 1985 SC 11, it was observed by their Lordships of the Supreme Court that:

29. "Where a witness is interested and also inimical and is thus likely to falsely implicate one or the other accused, it was essential to seek independent corroboration regarding each one of other accused."

30. As far as the motive was concerned, it is a double edges weapon and is a second name of enmity. In the case of Lashkari and 4 others v. The State mentioned (supra) it was observed that"- "no doubt in Law motive can oftenly be used as corroboration but in cases of this nature motive is just a second name of enmity and in relying on such motive which is borne of enmity the trying Judge followed a wrong process of appreciation of evidence."

31. In view of the above discussion I am of the clear view that the ocular evidence was interested, inimical and there were circumstances to show that complainant was not present at the Wardat at the time of incident. PW Mohammad Bachal was a chance witness and therefore the ocular evience required independent corroboration which is lacking in the present case. I, therefore, while giving benefit of doubt to the appellants allow this appeal, set aside their conviction and sentence and acquit them of the charges. They shall be released forthwith if not required in any other case.

32. I had allowed this appeal on 19-5-1987 by a short order, and these are the reasons for the same.

33. S.S./A-268 Appeal accepted.