1975 P Cr (PLP)

"Section 162 is widely drawn, but how far the Legislature intended it to have operation may be open to argument." Their Lordships of the Judicial Committee did not decide this question because in that case after excluding the statement objected to, there was still ample evidence. Muhammad Munir, C. J., taking the clue from the above observation by the Judicial Committee, examined the question in some detail in Ibrahim Bhak and another v. The Crown (2) and held that the statement of an accused person mentioning certain places and his act of subsequently pointing out the same, to a police officer during the investigation would not be barred under section 162, Cr. P. C. because of section 27, Evidence Act; and similarly, the statement made by a witness and in pursuance thereof his pointing out of some places to the Investigating Officer would not be hit by section 162, Cr. P. C. In this behalf, it was held that "what section 162 of the Code excludes in a statement, and that proof of the manner in which a witness's knowledge of certain places was tested during the investigation does no more amount to proof of a statement made in the course of police investigation than the result of a relevant experiment performed by the Investigating Officer," and also that the statement made by a witness followed by his pointing out of an accused person to the police officer during investi gation would not be hit by section 162, Cr. P. C. because "such evidence may be rightly given under section 9 of the Evidence Act in proof of the identity of the accused." His Lordship concluded the observations in this behalf by making the following statement of law ‑ "I do not think that section (162) of the Code is a "specific provision to the contrary" within the meaning of section 1, subsection (P L D 1955 F C 113) of that Code so as to exclude such evidence of identity." Subsection (2) of section 1, Cr. P. C. reads as follows:‑ "It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." Reading the above quoted provision with the aforesaid statement of law, the meaning becomes clear that if anything of the type mentioned in that pro vision is contained in any other law mentioned therein, that shall not be affected by any provision of the Code unless there is a "specific provision to the contrary" contained therein (the Code). In particular, the reference was to the law provided in the Evidence Act as contained in section 9 there of; and, as I understand, it was held that the said provision of the Evidence Act would have its full operation because section 162, Cr. P. C. was not a specific provision contrary to it, i.e. the aforesaid section 9 of the Evidence Act. On this reasoning, certain other provisions of the Evidence Act may need examination in proper cases, in order to find out whether they have been superseded by and to be necessarily read subject to section 162, Cr. P. C. Before doing that it is necessary to refer to another ruling of their Lordships of the Supreme Court where general guidelines for interpreting section 162, Cr. P. C. have been provided. The case is Shahmad v. The State (P L D 1956 S C (Pak.) 238) At page 242 of the report it was observed that section 162, Cr. P. C. is a provision which excludes certain pieces of evidence which otherwise are available under the law of evidence. Therefore, it has to be construed in the narrowest possible sense. In this case section 8 of the Evidence Act requires examination vis- -vis section 162, Cr. P. C. It was held by a Full Bench of Madras High Court in the case of Syarno Maha Patro (A I R 1932 Mad. 391) that section 162 dues not control the former provision. There appears to be a, slight deviation (though without reasons) from this view by a Single Bench and a Division Bench of the same Court in Krishna lyer and another (3) and In re: Vridhichand Sowcar and others (A I R 1943 Mad. 527). The earlier Full Bench Madras view appears to have been followed (without saying so) by the post‑Partition Calcutta High Court in Arun Kumar Banjerjee and another v. The State (A I R 1935 Mad. 479). In this latter case, an indirect support was sought to be gained from one Indian Supreme Court judgment in Anant Chintaman Lagu v. The State of Bombay (A I R 1960 S C 500). Proceeding in accordance with the guidance found in the pronouncements of our own Supreme Court, I am of the view that section 8 of the Evidence Act is not controlled by section 162, Cr. P. C. The two decisions of the Madras High Court in cases of Krishna lyer and Vridhichand Sow car, which precede on the contrary assumption, I say with respect, have not followed the correct law. Under section 8 of the Evidence Act, the conduct of an accused person is relevant if it influences or is influenced by any fact in issue or relevant fact, whether previous or subsequent thereto. In Explanation 1, the word "conduct" has been defined so as to exclude statements unless; those state ments accompany and explain acts other than statements; and explana tion 2 provides that when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is also relevant. Illustration (e) to this section provides an example; in that the facts, that an accused person provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant. On the reasoning followed by their Lordships of the Supreme Court in the case of Shahamad, subsection (2) of section 1 of the Code would not allow the use of section 162 thereof as a "specific provision" contrary to section 8, Evidence Act. This supposition finds support from another of their Lordships in the case of Muhammad Bashir Alam v. The judgment a witness before the State (1?‑ The evidence as to the statement made by while identifying S. culprit was used as a part of conduct not with police with he bar contained n section 162, Cr. P. C. The question was standing in discussed at some length with reference to the law in other countries, and in that process an observation by the Judicial Committee in the case King‑ Christie (2) was not noticed with approval. In the latter case it s observed that a statement as "an act of the mind" is to be distinguished was a statement simpliciter. Their Lordships of the Supreme Court used fro distinction in reaching the conclusion that the statement by a witness this the time of identification that "that is the man" apart from being at statement is also an act of the mind. Therefore, considering the fact that section 162 of the Code of Criminal Procedure is merely an application of the general rule against hearsay, it was held that such statement would have to be treated as a part of conduct and it would not be hit by the bar of section 162, Cr. P. C. The rule laid down in the case of Ibrahim Bhak was also reiterated, though of course with a warning, to the police agency and the judiciary, with regard to the acceptance of the evidence in respect h identification. It appears from the above that the conduct of and of such which included as its part a statement by that witness, was held witness, presumably under section 8 of the Evidence Act notwithstanding admissible, There is another reason for admitting the bar of section 162, Cr. P. C. a statement before the police. Section 162, Cr. P. C. bars the admis sion evidence about a statement. The rule laid down in the case of son Shamdad is that narrowest possible construction is to be placed on

162. Therefore, the term "statement" is to be given restricted meaning. To be precise the words or things stated or formal account of facts should be distinguished from an act or deed or process of doing on the one hand and behaviour on the other. In section 162, the term "state ment" is used in the former sense only. When it is behaviour, e.g., uttering of abuses, a statement obviously would be treated as conduct. Similarly, a statement may become involved in the process of doing an act, e.g., a protest by a woman on accusation of prostitution, if accompanied by an explanation of her being the wife and mother of respectable persons, will be treated as an act or deed of protest and will not be described as a statement simpliciter. Explanations 1 and 2 to section 8 read with section 5 of the Evidence Act make such statements relevant and admissible because they are not only statements but they also form part of behaviour, conduct or the process of doing an act. The mixed type of statement, therefore, strictly speaking, would not be barred by section 162 because it is not covered by the term "statement" as used in it. It needs to be stated as a warning that the evidence which is not barred under section 162, may still be inadmissible because of the bars contained in the Evidence Act, e.g. sections 24, 25, 26 thereof. Therefore, the above interpretation of section 162, when intended to be used against an accused person will have to be adopted with care. There is yet another aspect of the matter. If silence of an accused person, on accusation of an offence, is relevant as conduct, protest by him accompanied by a rejoinder or explanation would also be relevant. But it is always to be kept in mind that the initial burden of proving the case always remains on the prosecution and no amount of inaction on the part of the accused can, by itself, take the place of proof of guilt. (1) (2) 1914 A C 545

19. Applying the law as interpreted above to the present case, it would be seen that most of the pieces of evidence which have been used by the learned trial Judge in favour of the acquitted accused are not inadmissible. They showed a conduct in the very initial stages of investigation, presumably on accusation, which amounts to protest on assumption of innocence on their part. At that time a statement as to their absence from the spot would amount to rejoinder and thus would become mixed up with the act of protest The details of alibi, however, would become the formal account of certain facts and would be barred as a statement under section

162. Their conduct of producing a number of witnesses in support of their plea before the police is indisputably covered by illustration (e) to section 8 of the Evidence Act. But the statements made by these witnesses would be barred under section

162. Similarly, the fact that the co‑villagers in general appeared before the police on their side is also relevant notwithstanding the exclusion of the details of their statements under section

162. The fact that the police initially interrogated them for recovering the weapons but stopped doing so on their protest of innocence, and, further, on support thereof by other persons together with the fact that the interrogation continued in respect of the remaining accused, are relevant under section 8, Evidence Act because the conduct of investigation which is undoubtedly by itself relevant, was influenced by the conduct of these accused. The conduct of investigation and its having been influenced by certain factors including the statements and conduct of the witnesses and accused during the investigation was used as one of the basis for maintaining the conviction by the Supreme Court in the case of Allah Ditta v. The State (PL D 1958 S C (Pak.) 290). The relevant observations in this behalf are on pages 296, 297 of the report and read as follows :‑ "Alongwith these circumstances it is necessary also to consider the manner in which the names of the culprits came to be known to the relatives of the deceased, and the manner in which the information was conveyed to the authorities, coupled with the conduct of the investi gating authorities towards the accused persons and Allah Ditta in particular, and the conduct of Allah Ditta while in the custody of the police . . . . . . . These are entirely natural processes, and the evidence regarding them has been given in a manner calculated to attract confidence. (P. 296) . . . . . . it seems to us that bearing in mind the very natural way in which all the evidence in the case has appeared, without loss of time or delay such as might indicate the possibility of fabrication, a chain of evidence is established against him upon which a strong case for direct participation in the murder of Bahara can justly be based". See also Shamir v. The State (P L D 1958 S C (Pak.) 242). I have already noticed the case of Plara Dusadh in which the Federal Court took note of the trend of investigation by the policy and gave due benefit thereof to the accused. It was held in the State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147) that the decisions by the pre Partition Federal Court are of binding effect. It is necessary, however, while admitting this type of evidence, to make distinction between the opinion of an Investigating Officer about the innocence or otherwise of the accused and the acts in and conduct of the investigation. While the former is inadmissible, the latter is clearly admissible. This disposes of the question of admissibility of items No. (iv) to (viii) enumerated in paragraph 17 above as having been used in favour of the acquitted accused. With regard to relevancy and admissibility of items No. (1) to (iii), there is no dispute.

20. The next question that arises is as to what is the effect of the facts noted by the learned trial Judge (out of which some have been held above to be admissible) as being helpful to the four, acquitted accused. "Proved" means 'A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. "Disproved" mutatis mutandi has similar definition. But "Not proved" has been defined as "A fact is said not to be proved when it is neither proved nor disproved". (Sec. 3, Evidence Act). It is pertinent to note that the term "evidence" which is specifically defined in the same section, has not been used in the above definitions of 'proved' and 'not proved'. It does not mean that proof or otherwise of a fact is not to be based on evidence; but at the same time it is assumed that probabilities, inferences, suppositions and beliefs derivable there from; even though by themselves may not fall within the strict definition of evidence, yet if they are deducible from the evidence may be treated as the basis of a finding of 'proved' or 'disproved' or at any rate of 'not proved'. In a criminal case, an accused is entitled to acquittal if he is able to show that the prosecution case is 'not proved; though he may have failed to 'dig prove' it. It is in this context that the dependence in the judgment of a 'pru dent man' is recognised as a legal sanction for the use of 'probabilities' as the basis of a decision. In other words the proof of a fact depends not upon the accuracy of statements but also upon the probabilities of its having existed. This principle of law of evidence underlies so many provisions of Evidence Act, and the illustrations given thereunder; but it is most clearly demonstrated in the definition of "proved", "disproved", "not proved" and in the expressions used in subsection (2) of section

11. One corollary that follows from above is that probabilities etc. can give rise to doubts and when a doubt is reasonable, its benefit is given to the accused ; though the same is denied to the prosecution on the basis of sound policy. No hard and fast rule can be laid down as to the quantum of probabilities/improbabilities or reasonable doubts. Prudence is the only guide and yardstick. The sum total of evidence, probabilities and inferences, in the circumstances of each case, create a belief, of course in a prudent man', which ultimately becomes the foundation of decision. It is in this light that the judgment of the learned trial Judge is to be seen. Having taken note of the admissible part of the reasons relied upon by the learned Judge, it will not be reasonable to hold that these four accused have been able to show that they have been falsely implicated; but all these circumstances are sufficient to create a reasonable doubt about their guilt. Even if I would have differed on the question of the strength of these circumstances qua the benefit of doubt to be given to the accused, this difference of view alone would not have been sufficient for upsetting the acquittal which, it is now an established rule, is not to be interfered with lightly. In a recent case, their Lordships of the Supreme Court held after analysis, that the evidence in support of plea of alibi of an accused did not inspire confidence but refused to set aside the acquittal on the basis:‑ "However, as the evidence given by the D. Ws. was not challenged by the prosecution, it could be urged with some force that Idrees Khan was at least entitled to the benefit of doubt". The acquittal of Idrees Khan, therefore, was maintained. See Usmon Khan and others v. The State (PLD1962SC293). In another case Rhal Khan and another v. The State (PLD 1969S;C;101) their Lordships doubted the evidence in support of plea of alibi of two of the accused therein, namely, Khuda Bakhsh and Rafique. It was, however, held that their acquittal, ordered by the trial Court, not being entirely based on plea of alibi, "but also on the additional circumstances that they belonged to a different caste; resided in their dera at a distance of 1 I miles from the place of occurrence; and had no common motive to join in the assault", was not ‑liable to be set aside and, therefore, the order of acquittal was maintained. It is pertinent to note here that at the trial these four accused were not asked any question about the motive. These two rulings undoubtedly support them. Learned counsel for the State argued that the number of murder slim juries suggest that the assailants must have been large in number and therefore, the possibility that they might have participated in the occurrence cannot be excluded, Mr. Saleem replied that this argument is fallacious and cited the example of the Battle of Badar. This consideration, in the view that I have taken of the acquittal of these accused, is not of much importance in this case. The assailants could be eight in number, but it is not possible to hold that they could not 'at all' be less even by 'one'. And the suspicion, however, strong cannot take the place of such probability which should create a 'belief' in a 'prudent man'. Considering all the circumstances, therefore, I maintain the order of acquittal in favour of Umra, Noor, Mansha and Yousaf and dismiss the State appeal against them. But it is reiterated that there is no justification for the finding by the learned trial Judge that they had been falsely implicated. That finding, consequently is modified; in that they are entitled to the benefit of reasonable doubt and their acquittal is maintained on that basis only.

21. The case of Salehon accused‑respondent, however, stands on a different footing. He is the father of the three appellants and was residing with them. Therefore, he cannot be treated at par qua motive and likelihood of joining the three appellants in the offence, with the other four acquitted accused. The two motives, one rising out of dispute about the appellants sister and wives and the second about the latter's suspected infidelity, could be a motive also for Salehon accused because of his direct involvement, close relationship and his residence in the house adjacent to that of Haji Haibat. His case is also distinguishable; in that he did not take any plea at any stage that he was present in his house at the time of occurrence nor did he produce any evidence before the police. The only circumstance brought out in cross‑examination of the Investigating Officer is that his earliest version was that he was reading the Holy Quran when he learnt about the occurrence. His house is adjacent to that of Haji Haibat where a number of shots were fired and three murders were committed. According to the Draftsman (P. W. 6), the common wall between the two houses is 5 ft. high. It is not possible that Salehon would not have known as to what was happening in the house of his brother, and further that he did not know as to who were committing the offence. The victims being his real brother and his family and the assailants being his sons, it is not possible for me to accept the position that if he was not himself participating in the attack, he would not have either dissuaded his sons from killing his brother and wiping out his family or from making some effort, in saving the lives of the victims. His relationship is such that he could not be a mere spectator; rather had he not joined hands with his sons, he might himself have been injured in, at least, separating the parties. I am conscious of the fact that he is of about 70 years of age and has almost completely white beard. But it is significant to note that he did not appear to be weak in physique. He walked and stood straight and has a well‑built body. I cannot accept even for a moment that a person in his health and age was incapable of causing injuries with a hatchet. He having a white beard does not necessarily mean that he is, in fact, 70 years of age. Keeping in view his general health and physical condition, he might well be less than 70 years of age and we are aware of persons in that age group to be fairly active in normal habits. To my mind, the factor of age itself is of no consequence so far as this accused is concerned. It is also to be noticed that in the case of the other four acquitted accused the course of investigation was influenced by their conduct; and no effort was made by the police for effecting recoveries after the initial stages of investigation. But in the case of Salehon a blood‑stained hatchet (Exh. P. 15) was, in fact, recovered at his instance from his house on the very day of his arrest i. e. 16th October 1966. Though the blood had disintegrated by the time that the hatchet reached the Serologist, yet the fact remains that the trend and conduct of investi gation from the very beginning was entirely different in his case, as compared to the other (four) acquitted accused. The learned trial Judge while giving him the benefit of doubt has relied on the facts; that his relationship with the victims was very close and he had no motive to cause their deaths, and further that no blood‑stained clothes were recovered from him and the stains on his hatchet were not proved to have human origin. He noticed that before the police he had taken the plea that he was reading the Holy Quran when he came to know about the occurrence. And lastly that there was no corroboration of the eye‑witnesses qua him. I have already discussed the question of motive, and the other circumstances; (except of course the lack of corrobora tion which is to be dealt with separately). They are of no consequence. The reasons given by the learned trial Judge in support of the acquittal of the other four accused are strong and distinguishable from those given in support of the acquittal of Salehon which are conjectural.

22. So far as the lack of corroboration of the eye‑witnesses qua Salehon is concerned, the learned trial Judge fell in error: firstly because of his finding about false implication; and secondly because he also, like many others, might have felt constrained to proceed in a certain manner because of the assumed rigidity of law and practice as to corroboration. The latter is a very important question and needs to be examined in the light of the case‑law relating to the divisibility of credit of witnesses in criminal cases. Mr. Saleem vehemently contended that even if out of several, some accused are acquitted by giving them only benefit of doubt, it would not be possible to convict the remaining accused without independent corrobora tion. To my knowledge, the earliest ruling in Pakistan, in which the principle of falsest in un falsest in omnibus was discussed in detail fn the light of the conditions prevailing in this part of the country, is Ghulam Muhammad and others v. The Crown (P L D 1951 1ab. 66) Muhammad Munir, C. J., who wrote the judgment v, as pleased to observe as follows: "Generally when it is proved that some innocent persons have been dishonestly implicated in a crime, the Court is entitled, and it safer, to acquit even those who have not been able to prove that they were falsely implicated. The rule, however, is not absolute, and its indiscriminate application in ties province is as dangerous told the administration of criminal justice as the general application of the contrary rule, that in such cases the only persons against whom the evidence of the witnesses may be rejected are those who succeed in proving their innocence. Judges with vast and intimate experience of the administration of criminal justice in this country have often felt that where falsehood has been intentionally, mixed with truth, they are under no obligation to winnow the grain of truth from the chaff of falsehood. Others with equal experience and keen insight into the character and mentality of witnesses who generally give evidence in criminal cases in this Province have emphasised the grave danger of miscarriage of justice if oral evidence were judged by maxim of falsus in unto, falsus in omnibus, and have considered proof of perjury on a material point by itself not to be a sufficient reason to reject that portion of the evidence which appears to be true . . . . . . . . . . . . . . . . . . . I have always felt that the question or questions for the Judge in such cases, is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases and it seems to me that if you can do that, the result need not be determined by any general rule. It may be that the greater and clearer the falsehood, the more difficult the task of extracting the truth, but that is the real task before a Judge. I have never felt uncertainty about it I cannot, therefore, accept Mr. Saleem's con tention that since it is proved in this case that the witnesses have involved at least two men who could not have taken any parting the murders, their evidence against the other accused must for that reason alone be rejected. (Underlining* is mine). It was held that the witnesses were natural and there was nothing to negative their claim that they were present when the occurrence took place. And if they saw the occurrence they could not have possibly omitted to mention the names of the actual murderers though they might have included some persons who did not in fact take part in the crime. As earlier it had been observed that two persons were in a police lock‑up of Police Station Jhelum city when the murders were committed in a village named Dhulian, therefore finding was given that those two persons had been intentionally falsely impli cated by the eye‑witnesses. On that account it was considered safe to see whether the deposition of the same eye‑witnesses received "such degree of corroboration as might persuade us safely to hold that a particular person did take part in the crime". It is clear from the facts of the case and observations quoted above that when the eye‑witnesses intentionally implicated innocent persons, in to maintain conviction of some of the accused it would be safe to seek corroboration. But it does not at all follow that if there is no proof any finding that any innocent person has been knowingly and intentionally implicated by the eye‑witnesses and that if some persons are given only benefit of doubt, still the deposition of witnesses would need corroboration. This general rule and practice appears to have been followed, though with*[Here In italics)‑varying emphasis on the first or second part thereof depending upon the circumstances of each case for about two decades. Some of the cases which can be cited in this behalf are : Muhammad Sher and another v. The Crown (PLD 1954FC84) Muhammad Afsar v. The Crown (PLD1954FC170) ; Muhammad Akhtar v. The State (P L D 1957 S C (Pak.) 297) ; Muhammad Raz Bakhsh v. The Queen (P L D 1959 P C 24) ; Rehmat and others .v. The State (P L D 1959 S C (Pak.) 109) Ahmad Khan and another v. The State (P L D 1962 Lah. 390) ; Taleb alias Telebor and another v. The State (P L D 1967 S C 16) Shahadat v. The State (1968 P Cr. L J 68) ; Sardara and .another v. The State (1968 P Cr. L J 321) and the two latest rulings of the Supreme Court, which have already been referred to above in another connection, are Bhat Khan and another v. The State (P L D 1969 S C 101 ) and Usman Khan and others v. The State (P L D 1969 S C 293). From the reading of the case‑law on the point,‑ particularly the .practice followed by their Lordships of the Supreme Court, in my view the subject involved should be approached without any rigidity as to the course .to be followed. It is feared that it (rigidity) may lead to unfortunate results in unjustified acquittals/convictions on "decahedra assumptions' as A. R. Changez, J. put it in the case of Darghahl (P L D 1958 Lah. 300). Except in respect of approver (See section 114, Evidence Act with illustrations the requirement as corroboration of a witness is not a rule of law but is only a Judge‑made G rule of guidance. Therefore, this guidance, in the test and use of prudence, should not be given any more importance than the prudence itself.

23. In practice, we come across a large variety of cases wherein the question of divisibility of credit of witnesses arises in' one or the other form, In respect of the implication by witnesses of persons who are found inno cent, and its effect on the remaining co‑accused the cases may be divided into three categories, namely:‑ (i) Where the eye‑witnesses have intentionally and knowingly implicated one or more innocent person. (ii) Though there is no proof that a witness has falsely implicated a particular person, yet due to some doubt in respect of the nature of the statement made by him, one or more accused are acquitted or the acquittal takes place because he had a strong motive to falsely implicate one or more accused. (iii) When there is no defect in the statement of a witness qua general credibility or particular circumstances deposed to by him, but an accused by producing evidence or relying on independent circum stances, other than the deposition of that particular witness, is able to create sufficient doubt about his participation in the crime and is acquitted only on account of benefit of doubt. So far as the cases in the first category are concerned the rule laid down in the case of Ghulam Muhammad no doubt, for the time being has been applied. This, however, (Now) may be subject to some concep 4ional changes brought about in the later years in the various constitutional documents; whereby emphasis came to be placed on Islamic law as contained in the Quran and Sunna. It remains to be seen whether in, the absence of any provision in any law to the contrary, a witness who demonstrably, falsely, maliciously, intentionally and knowingly implicated an innocent person can, in any circumstance, be believed in respect of the other persons involved in the same case; or in respect of tiny circumstances deposed to by him, at any time, in any other case. There is nothing in an Evidence Act to bar the rejection of the statement of such a witness, in its entirety, notwithstanding the finding that being a natural witnesses he must have seen the occurrence. The principle (Islamic) being that a basically dishonest man, who ha: no respect for truth and oath, cannot be depended upon with regard to any thing, that he states. No amount of corroboration may, in that case, help the prosecution unless of course the same by itself is sufficient to sustain a conviction. However, the exception created in section 288, Cr. P. C. will, in this context, need serious consideration. In this case, however, the question does not arise. I have not agreed with the learned trial Judge that Musa and Isa P. Ws. have, intentionally, falsely implicated the four accused. Therefore, it does not fall in the first category. The cases falling fn the second category may be (a) an accused is founds not guilty but without a finding that the witness involved him falsely with the knowledge that he was innocent, e.g. when ‑ there is a doubt about or failure in, identification of an accused by the witness; (G) an accused is acquitted because of a possibility of his false implication on the finding of a motive with the witness to do so, but again, without a finding of conscious false implication on his part; (c) an accused is acquitted due to benefit of doubt relating to his part or participation in the occurrence which can also arise out of important discrepancies (qua him) between the statements of' witnesses. In the cases like aforementioned, the question of corroboration may depend upon the character and type of the witness. If his statement inspires full confidence of a prudent man, the same may be believed against the remaining accused without corroboration. In some cases, however,. particularly of the second type in this category, prudence may require caution to reach satisfaction ;for which corroboration may be needed. But, the confirmatory circumstances need not be of a particular type nor of any measured probative force. It is enough if they confirm the witness in some material particulars in such a way as to remove the anxiety of caution and re‑assure a prudent man about safety of conviction. Beyond this, the practice qua corroboration may get converted from caution to mandate; which was never intended by the Legislature even in respect of an approver (See section 133, Evidence Act). The present case does not fall under this category either; because the doubt of which benefit has been given to the four acquitted accused does not arise out of anything contained in the statements of the eye‑witnesses. On the contrary, there are circumstances including probabilities, independent of those depositions, as a result of which it has been considered safe to give them benefit of doubt. In the third category would fall all those cases in which .the benefit of doubt is given to an accused on the basis of independent probabilities etc. The finding in such a case is not that the acquitted accused was intentionally falsely implicated by, nor that he is found innocent due to any other weakness in the deposition of a witness (cases of first and second categories). On the other hand, the finding is that accused is acquitted due to benefit of doubt arising out of circumstances independently of any weakness in the depositions of the witnesses. The acquittal in such like cases does not lead to a necessary supposition that he was not involved in the commission of) the crime. Such a reasoning might not satisfy the norms of a logicians on the basis of rules of syllogism but is accepted in almost every civilized system of administration of criminal justice on basis of sound public policy. It is in this behalf, Le the question of benefit of doubt, in criminal jurispru dence, that the difference between technical rules of logic and administration of justice is highly pronounced. A very vivid demonstration of the practical application of the rule of benefit of doubt is found in Sher Hassan v. The State (P L D 1959 S C (Pak.)). In a case involving abetment and vicarious liability the High Court held that Rough an accused in that case, namely, Sher Afzal was present with the main culprit Sher Hasan at the spot, yet it was not possible to hold that "Sher Hasan was given the pistol by Sher Afzal and only fired upon being ordered to do so by the latter". Therefore, the latter was given the benefit of doubt. The question before their Lordships of the Supreme Court was whether Sher Hasan could be given benefit, of a lesser sentence on the hypothesis that he fired the pistol only when it as given to him and he was ordered by Sher Afzal to fire, in spite of the fact that this part of the prosecution case had not been believed on account of some doubts. It was held that the fact that Sher Afzal was given the benefit of doubt, in respect of the aforesaid allegation of the particular conduct at the spot, did not mean that because of this finding on the basis of doubt it was proved that Sher Afzal was not responsible for that conduct, and that the alternative possibility of the prosecution version being true and still available to Sher Hasan, he was entitled to the lesser penalty. At page 484 of the report the following observations are of great importance:‑ "But they (Judges of the High Court) have not adjudged the effect of the doubt on this point in relation to Sher Hasan. The doubt being whether one of two possibilities represents the truth, the possibility that Sher Afzal did not hand over the revolver or order Sher Hasan to shoot is one of which the benefit must go to Sher Afzal. But that is no reason why the alternative possibility, namely, that being on the spot Sher Afzal did produce the revolver and order Sher Hasan to shoot with it, should not be given its due legal effect in relation to Sher Hasan. He is entitled in law to ask that the decision on the matter of sentence, which tends to effect him vitally, should be based on the supposition that he did act under the influence of his elder brother." (Underlining* is mine). This observation, in my view, particularly the underlined* portion, is the crux of the entire basis of and philosophy behind the rule of benefit of doubt in criminal jurisprudence and the effect thereof. Applying it to the present case, the picture that emerges is that benefit of doubt, arising out of certain probabilities and other circumstances not directly affecting the credibility of the witnesses, has been given to four accused" but that is no reason why the alternative possibility should not be given its due legal effect", and "in Law" the effect of the alternatives possibility would be based on the "supposition" that they may have participated in the occur rence. If that is so it will be entirely wrong to say that they are definitely innocent and have been falsely implicated by the witnesses. Therefore, the whole basis for seeking corroboration of, the deposition of the witnesses becomes non‑existent. It is pertinent to note that the Supreme Court has itself, thought without saying so in so many words, followed the rule laid down in the case of Sher Hasan, in the two recent rulings in the cases of (1) 481 Bhai Khan and Usman Khan already cited above. In these (Murder) cases some accused persons were given the benefit of doubt of the type as has been given in this case and the remaining accused persons were convicted without seeking any independent corroboration to confirm the statements of the eye‑witnesses. On the above view of the matter, I hold that the fact that the four accused namely, Umra, Noor, Mansha and Yousaf have been given the benefit of doubt does not make it necessary that corroboration should be sought for, in respect of each of the remaining accused persons. Therefore, even if there is no corroboration against Salehon appellant of the type which is normally treated as "independent" corroboration, I hold him guilty on the finding and basis that the two eye‑witnesses, namely, Musa and Isa were the natural witnesses ; they had no motive to falsely implicate Salehon ; they did see the occurrence and hav. spoken the truth, therefore setting aside the order of acquittal passed by the learned trial Judge, convict him under section 302/34, P. P. C. on six counts for the murder of Manzoor, Mst. Khan Bibi, Mst. Sahib Bibi, Mst. Fateh Bibi. Haji Haibat and Mst. Aimna Bibi. So far as the three appellants namely, Muhammad Khan, Ashraf and Bashir are concerned, their conviction by the learned trial Judge, is based on the statements, of the two eye‑witnesses and other corroboratory circumstances. The learned Judge sought for the corroboration of the eye witnesses because of his finding of false implication in respect of the four acquitted accused. I have come to the conclusion that their acquittal is justified only by giving them the benefit of doubt. Therefore, there is no need for corroboration qua the three appellants as well. However, in addition to the eye‑witnesses, there is the evidence of extra judicial con fession against Muhammad Khan appellant and of incriminating recoveries against Ashraf and Bashir appellants. The offence of murder on six counts has been proved against them and finding there guilty, I maintain their conviction under section 302/34, P. P. C.

24. The question of sentence in this case is not, in any way, less complicated. Two motives have been suggested in the prosecution case; one was mentioned in the F. I. R. and the other has emerged at the trial in the evidence. There is no dispute about the fact that the wife of Manzoor deceased had gone to the house of his father and brothers and the wives of the three appellants had, in retaliation gone or been sent to the house of their brother and father. This, of course, must have created some estrange ment between the two families. But the statement of Musa P.W. shows that in spite of that they were on speaking terms before the occurrence. An effort at rapprochement was also being made and only two days before the occurrence a meeting was arranged between the parties by some persons who had acted as Panchayat. In that meeting, it appears that discussion in the form of negotiations took place between the two parties during which Salehon had demanded that in case Manzoor deceased was to marry a second wife, some land should be transferred to Mst. Jannat Bibi, leis daughter (wife of Manzoor), presumably as a security for her maintenance. Haji Haibat had refused to accept this condition; therefore, the compromise did not take place and the respectable were to reassemble about a week thereafter. It is also in the statement of Musa P. W. that the parties had never quarrelled or fought with each other before the occurrence, It is nowhere in the statement of any of the witnesses that the wives of the three appellants had any hand in estrangement between Manzoor and his wife. on account of the farmer s intention to remarry. No doubt something in that direction is stated in the F. I. R., but this circumstance it conspicuous by its absence from the substantive evidence. It appears from the trend of negotiation' between the two brothers, 3. e., Haji Haibat and Salehon that the former may have, in all probability, wanted his son to remarry ; particularly because he had no other son, and from the wedlock of Manzoor and Mst. Jannat Bibi of about five years existence, no issue was born. It is also unlikely that in this desire of Manzoor which was supported by his father, his mother would pot be a supporting party. Therefore, it is apparent that during the negotiations the three appellants and their father came to realise that Manzoor wanted to remarry and neither he nor his parents were willing to secure the peaceful life for Mst. Jannat Bibi by giving her some land. This would show that all four of them had a motive against those three persons. As to what was the strength of that motive so as to justify the killing of all three of them, is a matter of speculation and depend ing upon the temperament of an individual, can range from, a desire to harm them physically as a chastisement, to kill them in desperation. The fact that the respectable wanted to continue the negotiations and were (in themselves) certain that on the next meeting they would be able to arrange a reconciliation, would not detract from the fact that the appellants and their father felt annoyed with the three aforementioned deceased. There is yet another circumstance which supports this supposition. It was suggested in cross‑examination to Jehana (P. W. 14), the witness about motive, that Haji Haibat had in fact transferred his land in the name of his son. It was also suggested to him that the appellants wanted to take it1eir wives along but it was Haji Haibat who was preventing the ladies to live with their husbands, a it is correct that Haji Haibat had transferred the Lind to Manzoor or there was some such intention on his part, which had Become known, it may have given rise to an impression that the land of Haji Haibat would, in any case, go to Manzoor and if the latter remarried the land would go to the issues of Manzoor in the line of her would‑be second wife; and in that eventuality that land may have gone out beyond in control of Salehon and his sons. The fact that the question of land also as in their minds gets support from the explanation given by Muhammad khan appellant at the trial, as to why he had been involved in the case. The ewer was that the in‑laws of Haji Haibat wanted to usurp the land. Similarly, Ashraf appellant explained that Muhammad Khan Lambardar .a; anted to grab the land. The second suggestion about the role of Haji ‑What in not allowing her daughters to live with their husbands was denied by Jehana P.W; but that denial may not be based on the intimate know ledge of the facts which were known to both the parties. It is very likely that so long as the question of Manzoor's second marriage and the demand of land for his first wife, i.e., Mst. Jannat Bibi, was not settled. Haji Haibat would not have liked her daughters to go back to their husbands. These circumstances also constitute a motive with Salehon and his sons against Haji Haibat, his son and his wife. These circumstances by themselves, keeping the human nature and normal conduct in view, were not sufficient as a motive against the three wives of the three appellants, so as ‑ to kill them in a mass murder. It is pertinent to note that the appellants each one of them, according to the eye‑witness account which I have believed, directly took part in the assault on and killed their respective wives. It is also in evidence that, at least, two of the appellants had children from their wives. All the other elements constituting the other motive discussed above would tend to show that whether in respect of land or in respect of the demand of the appellants for the return of their wives to their houses, it was not at all necessary or likely that they would have killed their wives. This, in fact, runs counter to that motive. And it does not appal to reason that no other circumstance contributed towards the killing of these three ladies. This brings us to the second motive suggested in the prosecution evidence itself. T he details of that motive have been admitted in the statement of Ahmad Khan (P. W‑ 10); in that two persons, namely Yousuf and Gullu, had developed illicit relations with Mst. Fateh Bibi wife of Muhammad Khan and Mst. Sahib Bibi wife of Ashraf; and that in spite of the protest from the side of the appellants, Haji Haibat and Manzoor had refused to dissuade those two men from visiting their house. The witness, however, denied the suggestion that he knew that the aforesaid Yousuf and Gullu had spent in the house of Haji Haibat on the night preceding the occurrence. Earlier dealing with the question of time of occurrence, I have doubted the statement of this witness as, (in some particulars), having been influenced by a motive to support the defence. He denied at the trial the recovery of the basket and grass from near the place where Mst. Khan Bibi was murdered and further that only two and not four crime empties were recovered from the courtyard of Haji Haibat; while in the committing Court he had specifically stated to the contrary, These concessions, particularly that relating to the grass and the time of the occurrence appear to have been made to create confusion about the entire prosecution case. Therefore, it will ‑ not be safe to rely on the statement of this witness so far as the second motive is concerned. Apart from his statement, there are other circumstances which tend to show that the suggestion about the bad character of the wives of Muhammad Khan and Ashraf appellants may not be incorrect. It was brought out in the cross‑examination of Muhammad Sher P. W. (whose statement as to extra judicial confession has already been accepted by me as true) that the second motive which was disclosed on the morning of the 16th October 1966, i. e., the next day of the occurrence, was that the three appellants killed their wives on account of the immoral connections of the two ladies. Naurang and Jehana P. Ws. unwed this suggestion. But that denial is neutralised by the fact that the‑, agnail swabs taken from the dead bodies of three wives of the appellants, on chemical examination were found to have been stained with semen. Admittedly, the three appellants had no access to their wives on the night preceding or some days before the occurrence. Therefore, it will have to be accepted as a fact that all these three deceased women had illicit connections with some men. The learned counsel for the State in this behalf contended that the semen, appeared to have been planted in order to help the defence. There is no such indication nor even a suggestion in the entire evidence. It is an admitted position that a suggestion in respect of the immoral character of, at least, two ladies was made by or on behalf of the appellants on the morning of 16th October. The autopsies were conducted on the 15th October and the reports of the Chemical Examiner were made about two weeks thereafter. In the absence of any circumstances to support the supposition of the learned tinsel for the State, it is against the accepted principles of appreciation of evidence in a criminal case to suppose that the semen must have been planted in order to help the appellants. Neither in the memos nor in the statements of the police officers, there is anything which may show that these persons wanted to help the appellants. Therefore, considering all the circumstances, particularly the fact that the three appellants and their father had no other motive to kill these three ladies, I hold that something happened, prior to the occurrence and after the negotiations (of about ,two days earlier), which made them believe that these ladies had developed illicit connections. A possibility cannot be excluded that somebody in the house of the appellants which, as already noted, is adjacent to the house of Haji Haibat with an intervening wall of 5 feet height, might have on one or more nights during the intervening period, noticed one or more outsiders having slept in the house of Haji Haibat in an objectionable manner so as to confirm the suspicions of the appellants; and their father and thereafter not knowing as to whose wife was involved, they thought that all three of them were immoral and planned to kill them. I have already held that the circumstances of the case do not show that Salehon had not made himself a party with his sons. Therefore, in my view, it is in the entire background of the two motives with their various ramifications, that the six murders took place. If the killing of the three ladies (the wives of the appellants) only is kept in view, all of them become entitled to the benefit of the lesser sentence. But, in my view, the motive for killing Haji Haibat, his son and his wife cannot, in any way, be associated with the question of honour. They were killed because of the first motive discussed above which cannot, at all, be considered as laudable. The elements of greed, qua land; revenge, qua proposed remarriage of Manzoor; and chastisement/retaliation, qua the attitude of Haji Haibat, his son and his wife in the family dispute, are involved in that motive. Thus the culprits do not deserve any leniency. The fact that the killing of the three ladies was on account of sense of honour cannot and does not make the crime of killing the other three persons, in any way, less heinous. Keeping these circumstances in view, all four of them, i. e. Salehon and his three sons, the appellants, should be held to have deserved the extreme penalty of death under section 302, P. P. C. But the matter does not end here. After giving anxious thought to the ‑question of sentence qua Salehon accused, I have come to the conclusion that he should be given lesser penalty. The considerations which have weighed with me are; (i) The three grown‑up sons of Salehon decided to wipe out the entire family of his brother. The determination of the three sons in this behalf must have had great influence on this accused (an old man of advanced age) and it was partly due to that influence that he participated in the crime. There is ample authority to support the view that if a murder is committed by a person under an influence of his elders (close relations), this might be a justification for imposition of the lesser sentence. The principle underlying the practice is that when the volition of a person is, to some degree, influenced/controlled by another closely connected person or persons of stronger will and greater interest in the matter, the responsibility of the former qua the quantum of sentence gets reduced; though in a small degree. There is nothing on the basis of this reasoning to deny this benefit to a person who can avail it, simply because he is elder in age. In this case it appears that Salehon was under the influence of his sons who had greater stake in the matter and may have been more determined to commit the crime. Therefore, he, in my view, having acted under the influence of his three sons, should be given the lesser penalty. (ii) Salehon was acquitted by the learned trial Judge on 3rd April 1968. He has enjoyed the lease of life for a period of about one year and nine months. This, by itself, may not be sufficient fir imposin g the lesser sentence in all cases; but coupled with the circumstance noted earlier, it becomes an additional ground. For the above reasons while convicting Salehon accused under section 302/34, P. P. C. I sentence him to transportation for life and the State appeal against him is accepted. There being no justification for the lesser penalty in respect of Muhammad Khan, Ashraf and Bashir appellants, the sentences of death awarded to them are confirmed and their appeals are dismissed.

25. Before closing this judgment, I must acknowledge the valuable assistance rendered by Mr. Saleem, the learned counsel for the appellants accused. During the lengthy but relevant arguments, for about six days in this complicated case, he exhibited complete mastery over the facts and grasp of all the questions involved; and but for his undoubted and scrupulous fairness it may not have been easy to resolve the various controversies of facts and law that this case presented. MUHAMMAD AFZAL CHEEMA, J.‑Having carefully gone through the judgment written by my learned brother Muhammad Afzal Zullah, J., characterized by a minute analysis of the evidence and detailed examination of the legal issues involved in the case, which has really impressed me, I have by and large agreed with it, particularly to regard to the dismissal of the appeal of Muhammad Khan, Ashraf and Bashir appellants, whose sentences of death have been confirmed, and the dismissal of the State Appeal against the acquittal of Umra, Mansha, Yousaf and Nur Ahmad accused. Likewise. I have no hesitation in the view taken by my learned brother that the acquittal of Umra, Mansha, Yousaf and Nur Ahmad accused can be justified on the ground of their entitlement to bent‑fit of doubt and not because of trial Court's positive finding in regard to their false implication, which we have found difficult to uphold.

2. I have not, however been able to persuade myself to agree with my learned brother in the conviction of Salehoon, one of the five acquitted accused, against whom alone the State appeal against acquittal has been accepted with an award of a sentence of transportation for life. The relevant discussion of the case of Salehoon who was acquitted by the learned trial Judge is contained in paragraph No. 72 of the latter's judgment and is, reproduced below:‑ "

72. Saleboon is the father of three accused namely, Muhammad Bashir and Asbraf. He had no motive to cause death of six persons who were closely related to them. The very first attack was made on Manzoor who was the nephew of Salehoon. Manzoor was also the son‑in‑law because he was married to the daughter of Salehoon. In this way it does not appear that he should have started with a common object with his sons to cause death of Manzoor. The last man who died was Haji Haibat Khan. He was the brother of Salehoon. I do not believe that Salehoon accused had arty motive to cause these deaths. It was admitted by Raja Qurban Ali (P. W. 20), that at the very first instance Salehoon took the plea that he was studying Holy Quran when he came to know about the occurrence. No blood‑stained clothes were recovered from him and it was not proved that the hatchet recovered was stained with human blood. As there is no corroboration, therefore, the ocular evidence cannot be accepted against him. I give him the benefit of doubt." An analysis of the above discussion would show that four factors weighed the learned trial Judge to persuade him to give a verdict of acquittal in favour of Salehoon, namely, (i) the absence of motive to be a party to six murders including those of his real brother and nephew‑cum‑son‑in‑law, (ii) the Admission on the part of the Investigating Officer Raja Qurban Ali, P. W. 20 that Salehoon bad taken the plea before him that he was studying the Holy Qur'an when be learnt about the occurrence, (iii) that his clothes were not found to be blood‑stained and (iv) lastly, that the origin of the blood on the hatchet recovered at his instance remained undetected. It is clear that the ocular evidence was discredited in his case for want of corroboration and as such he was given the benefit of doubt. The above finding of the learned Judge has been criticised by my learned brother Muhammad Afzal Zullah, J., from different aspects. The relevant discussion is contained in paragraph No. 21 of the judgment which is reproduced in extenso:‑ "The case of Salehoon accused‑respondent, however, stands on a different footing. He is the father of the three appellants and was residing with them. Therefore, he cannot be treated at par qua motive and likelihood of joining the three appellants in the offence; with the other four acquitted accused. The two motives, one arising out of dispute about their (appellants') sister and wives and the second about the latter's suspected infidelity could be a motive also for Salehoon accused because of his direct involvement, close relationship and his residence in the house adjacent to that of Haji Haibat. His case is also distinguishable; in that he did not take on v plea at any stags that he was not present in his house at the time of occurrence nor did he produce any evidence before the police. The only circumstance brought out in cross‑examination of the Investigating Officer is that: his earliest version was that he was reading the Holy Quran when he: learnt about the occurrence. His house is adjacent to that of Haji Haibat where a number of shots were fired and three murders were committed. According to the Draftsman (P. W. 6), the common wall between the two houses is 5 ft. high. It is not possible that Salehoon would not have known as to what was happening in the house of his brother, and further that be did not know as to who were committing the offence. The victims being his real brother a: d his family and the assailants being his sons, it is not possible for me to accept the position that if he was not himself‑participating in the attack, he would not have either dissuaded his sons from kiting his brother and wiping out his family or from making some effort, in saving the lives of the victims. His relationship is such that he could not be a mere spectator; rather had he not joined hands with his sons, he might himself have been injured in, at least, separating the parties. I am, conscious of the fact that he is about 70 years of age and has almost completely white beard. But it is significant to note that he did not appear to be weak in physique. He walked and stood straight and has a well‑built body. I cannot accept even for a moment that a person in his health and age was incapable of causing injuries with a hatchet. He having a white beard does not necessarily mean that he is, in fact, 70 years of age. Keeping in view his general health and physical condition, he might well be less than 70 years of age and" we are aware of persons in that age group to be fairly active in normal habits. To my mind, the factor of age itself is of no conse quence so far as this accused in concerned. It is also to be noticed that in the case of the other four acquitted accused the course of investigation was influenced by their conduct; and no effort was made by the police for effecting recoveries after the initial stages of investi gation. But in the case of Salehon a blood‑stained hatchet (Exh. P. 15) was, in fact, recovered at his instance from his house on the very day of his arrest, i.e., 16th October 1966. Though the blood had dis integrated by the time that the hatchet reached the Serologist, yet the fact remains that the trend and conduct of investigation from the very beginning was entirely different in his case, as compared to the other (four) acquitted accused. The learned trial Judge while giving him the benefit of doubt has relied on the facts; that his relationship with the victims was very close and he had no motive to cause their deaths, and further that no blood‑stained clothes were recovered from him and the stains on his hatchet were not proved to have human origin. He noticed that before the police he‑had taken the plea that he was reading the Holy Qur'an when he came to know about the occurrence. And lastly that there was no corroboration of the eye witnesses qua him. I have already discussed the question of motive, and the other circumstances ; (except of course the lack of corrobora tion which is to be dealt with separately). They are of no consequence. The reason given by the learned trial Judge in support of the acquittal of the other four accused are strong and distinguishable from those given in support of the acquittal of Salehon which are conjectural." The reasoning as to the culpability of Salehon given by my learned brother could be analysed as follows:‑‑ (i) Community of motive with his sons because of his direct involvement in the matter, close relationship with his co‑accused and contiguity of his house to that of Haibat Khan, which was the scene of three murders. (ii) His failure to take the plea of alibi before the police precisely to the effect that he was not present in his house. (iii) Probability of Salehon having knowledge of the murders. (iv) Salehon's failure to make any efforts to dissuade his sons to wipe out the family of his brother. (v) The probablity of his having been injured in the course of the assault if he himself were not a participant. (vi) His capability to wield a hatchet despite his old age. (vii) Recovery of blood‑stained hatchet P. 15 at his instance on 16‑10‑1966, the day of his arrest. According to his Lordship, the finding given by the trial Court regarding false implication of Umra, Yousaf, Mansha and Nur Ahmad and its uncalled for insistence on corroborative evidence led to an erroneous view resulting in the acquittal of Salehon. While trying to distinguish the case of Salehon from that of other acquitted co‑accused his Lordship after examining con siderable case‑law on the point of corroboration came to the conclusion that it was by no means a rule of law but merely a rule of prudence to look for corroborative evidence which, too, was not absolute in nature to be rigidly ob3erved or applied in all cases. In his Lordship's opinion, no such corroboration was called for in the case of Salehon the reasons for whose culpability were summarised in paragraph No. 24 of the judgment as follows:‑ (i) that Musa and Isa were natural witnesses of the occurrence, (ii) that they did see the occurrence, (iii) that they spoke the truth, (vi) that they had no motive to falsely implicate Salehoon.

2. Before discussing the above finding of his Lordship and the reason ing advanced in support thereof, I would like to observe in the first instance that I am in respectful agreement with my Lord that it is not at all necessary to look for corroborative evidence in every case nor can it be regarded as an absolute and Indispensable rule to be rigidly applied to all cases. Again, the Courts have not found it possible to lay down any positive standards by which sufficiency of corroborative evidence is to be measured, the variability being dependent on the circumstances of each case. (i) There may be cases where the credibility of natural eye‑witnesses is so unimpeachable that the Courts find no hesitation in placing implicit reliance of their testimony to make it the basis of conviction without looking for corroboration, not withstanding the plea taken by the accused and supported by evidence which has not been able to shake the confidence of the Court in the veracity of the witnesses or otherwise to create a reasonable doubt in its mind as to the complicity of the accused. (ii) There may be another category of cases where the Court is not sufficiently satisfied that the witnesses did see the occurrence. Obviously, no amount of corroboration would be helpful to the prosecution in a situation like this and the accused would be entitled to acquittal. (Iii) In the third category of cases the Courts may be reason ably satisfied that the witnesses did see the occurrence and may be prepared to believe their testimony and yet in view of certain circumstances, as a matter of abundant caution might consider it safer to insist on corro borative evidence before convicting an accused person. Typical examples of such cases may be where the witnesses are either interested, or are chance witnesses or where in view of a cast‑iron defence such as an established plea of alibi one or two of accused persons though mentioned in the F. I. R. have been found to be innocent. (iv) In addition to the above classification, there may be yet another category of cases, where the witnesses have been believed and nevertheless the Courts have considered it safer to acquit some of the accused rather than convict them in view of certain circumstances favourable to them. The case of Salehon in my Opinion falls in this category. This view appears to have been actuated by a feeling that in this country witnesses seldom hesitate to perjure themselves even in cases of murder, and cleverly invented falsehoods have successfully carried con viction. It is for this reason that some Judges went to the extent of suggesting abolition of capital punishment in undivided India which in European countries is motivated by other considerations such as the con sciousness of inherent weaknesses of human nature sought to be cured by lesser and reformatory forms of punishment. However, it is difficult to give a comprehensive catalogue of such cases, nor can any hard and fast rule be laid down in this regard. In fact, one comes across a variety of case‑law and authorities where in more or less similar situations the Courts have come to divergent conclusions of acquittal and conviction. But very often on a closer examination of the authorities, it has not been found difficult to reconcile and explain away the apparent inconsistency of views. In fact the existence of one little circumstance in one case and its absence in the other would make all the difference. Here lies the danger in the indis criminate invocation of authorities. Mr. M. Salim referred us to the following observation made by Lord Somervell of Harrow in Qualcast (Wolverhampton), Ltd. v. Haynes ((1959) 2 All E L R 38). "A Judge naturally gives reasons for the conclusion formerly arrived at by a jury without reasons. It may sometimes be difficult to draw the line, but if the reasons given by a Judge for arriving at the conclusion previously, reached by a jury are to be treated as `law' and citable, the precedent system will die from a surfeit of authorities." In the same judgment, Lord Denning observed:‑ "My Lords, in 1944, Du Pareq, L. J., gave a warning which is worth repeating today: There is a great deal of danger, if I may say so, particularly in these days when very few cases are tried with juries, of exalting to the status of propositions of law what really are particular applications to special facts of proposition of ordinary good sense."

3. Coming now to the case of Salehon, I 'shall mostly fall back on the research conducted by my learned brother, Muhammad Afzal Zullah, J., himself. In the first instance, I will deal with the reasoning given by his Lordship. The first consideration which weighed with my Lord is the community of motive between Salehon and his sons. With utmost respect, I have not been able to find complete identity in this regard between the father and sons. Haibat Khan deceased was the brother of Salehon and as such nearer to him than to his sons, who were, at least, remoter by one degree. Manzoor deceased was not only his nephew being the son of his real brother Haibat Khan, but was also his son‑in‑law. Normally it would be difficult to believe that Salehon, who was smarting under the apprehen sion or threat of rivalry to his daughter in the event of Manzoor taking a second wife should have gone to the extent of killing his only brother and his nephew and this by his own act have also widowed his daughter into the bargain. As regards the second motive which did not find mention in the F. I. R., namely, illicit connection of two deceased wives of Muhammad Khan and Ashraf appellants, which in all probability led to this gruesome and fratricidal massmurder, Salehon would certainly have felt perturbed about it, but it is rather doubtful that a seventy years old man like him would have been so worked‑up as to play such a leading role in this bloody drama. It may be kept in view that according to the prosecu tion when Manzoor fell down as a result of gun shot injuries, Salehon attacked him with his hatchet alongwith Mansha and Bashir. He then accom panied his co‑accused to the house of Haibat Khan and gave hatchet blows to Mst. Fateh Bibi who had already been injured by the gun‑shot fired by her husband Muhammad appellant. He did not stop at this and proceeded to inflict the 'unkindest cuts of all on his real brother Haibat Khan. However, while appreciating on the one hand that there could certainly be some community of motive between Salehon and his sons, I cannot over look the considerations of variance and the difference in their level of intensity.

5. The next consideration which found favour with my learned brother in giving a verdict of guilty was the failure on the part of Salehon to lead evidence in support of his plea of alibi. It is in evidence that in support of his protestations of innocence before the Investigating Officer, San had stated that he was reading the Quran at the relevant time in his house. Having examined considerable case‑law as to whether such a statement would be hit by section 162 of the Cr. P. C., my learned brother has held it admissible under section 8 of the Evidence Act and rightly so, as a part of the conduct of the accused. I am in respectful agreement with this. By taking this stand before the police, Salehon not only denied his presence as a member of the assailant party but took a definite plea of alibi though it was not his case that he was at some place other than his house. In so far as his failure to lead evidence in defence at the trial is concerned, apparently his Lordship does not seem to have this in view, but nevertheless it is common knowledge that production of defence evidence in murder cases is a risky affair fraught with considerable danger and as such it is rarely that the accused have adduced evidence in defence. No wonder, therefore, that Salehon also did the same, presumably, on the advice of his counsel. In my humble opinion, no adverse inference could be drawn against him on this account.

6. The point next considered by his Lordship was that if Salehon was not a member of the assailant party, but was instead reading the Quran as asserted by him before the police, in his house adjacent to the house of his brother Haibat Khan deceased which was the scene of three murders, it was inconceivable that he would not have rushed to the spot and tried to save his brother, nephew and nieces and in all probability would have sustain. ‑ed injuries in such an event. It may be submitted with the utmost respect that though by and large human behaviours may conform to certain known patterns described as the normal course of human conduct yet human reactions may not always be same or similar. We often come across a variety and complexity of unexpected aberrations in normal persons. The possibility or even probability envisaged by my learned brother may not always materialise in such circumstances, for a man may be too timeorous to go ahead and may be completely unnerved or may be overwhelmed by the suddenness and intensity of shock. Even otherwise, the probability of Salehon being injured and that too at the hands of his sons would not be a foregone conclusion or an inevitable certainty.

7. His Lordship next referred to the state of Salehon's health and the capability of his wielding a hatchet. Here, again, it may be submitted with respect that human reactions are not always identical and having looked at this accused in Court, particularly in view of his age, trembling head and white beard it is rather doubtful that he would have played such a leading role so as to have physically participated in the murder of at least three victims of this ghastly attack by personally giving hatchet blows to them. Even if he had fallen to the lowest abyss of becoming in the Quranic sense meanest of the mean (ASFAL SAFLAN) such a beastly perform ance certainty appears to me to be doubtful, if not a complete physical impossibility. But what is really much more significant is the conspicuous absence of blood stains on his clothes unlike those on the garments of his sons Ashraf and Bashir appellants. It would be pertinent to refer in this context to the observation made by my learned brother in paragraph No. 14 of the judgment at page 44 wherein his Lordship has believed the evidence in regard to the presence of blood stains on the garments of Ashraf and Muhammad Khan appellants who unlike Salehon had used guns and obviously from a comparatively greater distance than from where the use of hatchet by Salehon could be envisaged. The relevant observation is as follows:‑ "The blood stains on the garments of Ashraf and Muhammad Khan appellants (in latter's case disintegrated) were in the form of specks. Such staining, in the circumstances, is highly probable." Again in paragraph No. 16, while summing up the conclusions arrived by his Lordship as to the credibility of evidence of recoveries, it .vas observed as follows:‑ "The other recoveries, i.e., of a double‑barrelled gun and a blood‑stained chadar from Muhammad Khan appellant; a blood‑stained hatchet from Salehon appellant (the blood on last mentioned two items found to have been disintegrated); and a single‑barrelled gun from Ashraf appellant, have not been directly connected with the crime. The learned counsel for the State, however, contended that the fact that these articles were recovered from accused persons should also be used against them. But in my view, it will not be safe in this case, to rely on the recovery of such articles which have not been directly connected with the crime, even though they do tend to create some amount of inference against the accused." While obviously excluding the incriminating recovery of a blood‑stained hatchet, strangely enough, his Lordship appears to have inadvertently gone back on the above observation in paragraph No. 21 of the judgment. In distinguishing the case of Salehon from that of the other acquitted co‑accused, it was observed at page No. 76 as follows:‑ It is also to be noticed that in the case of the other four acquitted accused the course of investigation was influenced by their conduct; and no effort was made "by the police for effecting recoveries after the initial stages of investigation. But in the case of Salehon a blood‑stained hatchet (Exh. P. 15) was, in fact, recovered at his instance from his house on the very day of his arrest, 16th October 1966 Though the blood had disintegrated by the time that the hatchet reached the Serologist, yet the fact remains that the trend and conduct of investigation from the very beginning was entirely different in his case, as compared to the other (four) acquitted accused." From the above extract, I have not been able to avoid the impression that consciously or unconsciously, his Lordship was to some extent influenced by the recovery of blood‑stained hatchet even though it had not been specifically mentioned as forming one of the bases of conviction.

8. No doubt the case of Salehon cannot be placed on the same footing with that of the other acquitted co‑accused for reasons detailed in the judgment of my learned brother and he definitely stands on a weaker wicket, nevertheless, I am clearly of the view that in view of the foregoing discussion, it would not be safe to convict him. In fact, according to my interpretation Usman Khan and others v. The State (P L D 1969 S C 293) an authority examined by my learned brother could be directly invoked in support of this view. In that case one Usman Khan, his brother Azam Khan and two sons Sardar Khan and Idrees Khan were acquitted by the Additional Sessions Judge Peshawar of charges under section 302/34, 307/34 P. P. C. Accepting the appeal filed by the State, the High Court sentenced them to transpor tation for life and five years. R. I. each on the two counts respectively. They preferred an appeal before the Supreme Court under Article 58 (2) of the Constitution. Their Lordships upheld the convictions and sentences of Usman Khan, Azam Khan and Sardar Khan appellants, but acquitted Idrees Khan giving him the benefit of doubt. Idrees Khan, who was a Sub‑Inspector in the Special Branch Office Peshawar, had raised the plea of alibi that at the relevant time he was present at Bannu 150 miles away from the scene of occurrence. The plea of alibi was not found to be convincing by their Lordships, inter alia, on the grounds : (i) that the F. I. R. naming Idrees Khan as one of the assailants was lodged immediately after the occurrence which eliminated the possibility of concoction, (ii) that an important witness, though available, was not produced in support of the plea of alibi, (Iii) that two witnesses produced were his fellow officers and (Iv) that no departure report was made by him before leaving Peshawar for Bannu nor did he make an arrival report at Bannu. Notwithstanding the finding that the evidence of alibi did not inspire confidence, their Lordships nevertheless considered Idress Khan to be entitled to the benefit of doubt on the sole ground that the evidence given by the D. Ws. was not challenged by the prosecution. The relevant observation is reproduced as follows:‑ "However, as the evidence given by the D. Ws. was not challenged by the prosecution, it could be argued with some force that Idrees Khan was at least entitled to the benefit of doubt." It may be observed at the risk of repetition that the conviction of other co ‑appellants, Sardar Khan, Azam Khan, and Usman Khan, was upheld, obviously, for the reason that the eye‑witnesses were fully believed in their case. In the case before us, in addition to the points discussed above where conviction is sought to be based on the testimony of two witnesses, Musa and Isa, who are cousins inter se, and claim to be equally related to the parties, when four persons have already been found entitled to benefit of doubt though on different grounds, in my humble view, it would not be safe to convict Salehon in the absence of corroborative evidence who is entitled to benefit of doubt and as such his acquittal should be maintained.

9. Since, however, there has been a difference of opinion between me and my learned brother on this point, the case may be placed before my Lord the Chief Justice for being referred to a third Judge for final decision. ANWARUL HAQ, C. J.‑This case has been laid before me under section 429 of the Code of Criminal Procedure on account of a difference of opinion having arisen between my learned brothers Muhammad Afzal Cheema, J. and M. A. Zullah, J. on the question whether the acquittal of respondent Salehoon of an offence falling under section 302/34, P. P. C. be set aside or not.

2. The relevant facts are that on the morning of the 15th of October 1966 six members of the same family, namely, Haji Haibet, his wife Mst. Khan Bibi his son Manzoor, and his three daughters Mst. Fateh Bibi Mst. Amna Bibi and Mst. Sahib Bibi, were murdered in quick succession in or near their house in Chak No. 357/G. B. in the jurisdiction of Police Station Jaranwala in the Lyallpur District. The prosecution alleged that the murders were committed by the respondent Salehoon, his three sons Muhammad Khan, Bashir and Muhammad Ashraf, his two sons‑in‑law Umra and Yusuf, his brother‑in‑law's son Noor Muhammad and his nephew's son Mansha. The learned Additional Sessions Judge at Lyallpur, who tried the case, convicted only the three sons of Salehoon and sentenced them to death, but acquitted Salehoon, Umra, Yusuf, Noor Muhammad and Mansha. He held that Salehoon was entitled to the benefit of doubt, whereas Umra, Yusuf, Noor Muhammad and Mansha had been falsely implicated.

3. When the case came up before a Division Bench of this Court for confirmation of the death sentences under section 374, Criminal Procedure Code, and for the disposal of the appeal filed by the convicted persons, the learned Judges directed the issuance of a notice to the acquitted accused to show cause why they should not be re‑tried. In the meantime, the State also filed an appeal against their acquittal.

4. Both the learned Judges, before whom all these matters came up for final hearing, are agreed that the conviction of the three sons of Salehoon, namely, Muhammad Khan, Bashir and Muhammad Ashraf, under section 302, read with section 34 of the Pakistan Penal Code should be maintained and their death sentences should be confirmed. Their Lordships are further agreed that the finding of the trial Court that Umra, Yusuf, Noor Muhammad and Mansha were falsely implicated could not be sustained, but the acquittal of these four persons was, however, justified on the ground that they were entitled to the benefit of doubt. With regard to Salehoon the conclusion reached by M. A. Zullah, J. is that his acquittal should be set aside, he should be convicted under section 302/34, P. P. C. and sentenced to transportation for life; whereas the opinion expressed by Muhammad Afzal Cheema, J. is that in the absence of corroborative evidence it would not be safe to convict Salehoon and, therefore, his acquittal should be maintained.

5. In view of the very elaborate judgment delivered by my learned brother M. A. Zullah, J. it is not necessary for me to describe at any length the details of the crime and of the evidence relied upon by the prosecution, except to the extent necessary for resolving the difference of opinion with regard to the guilt of Salehoon. The deceased Haji Haibet was a brother of Salehoon and his three, murdered daughters Mst. Fateh Bibi, Mst. Amna Bibi and Mst. Sahib Bibi were married to the three convicted sons of Salehoon. Salehoon's daughter Mst. Jannat was married to Haji Haibet's son Manzoor deceased. However, Mst. Jannat had not born any child during five years of marriage, with the result that her husband and his family had started contemplating a second marriage for Manzoor, especially because he was their only son. This led to bad blood between Manzoor and Mst. Jannat, and the latter came away from her husband's house to live with her father and brothers. This incident is said to have happened seven or eight months before the present tragedy. The houses of the two brothers Haji Haibet and Salehoon are separated only by an intervening wall. As is usual to such exchange marriages, the three sons of Salehoon also sent away their wives to their parents. It is said that two days prior to the occurrence Muhammad Khan Lambardar (P. W. 12), Jehana (P. W. 14) and Yaqoob (P. W. 17) constituted themselves into a panchayat so as to effect a conciliation between the parties. During the parleys the respondent Salehoon agreed to send his daughter to the house of her husband Manzoor deceased provided Haji Haibet agreed to transfer some land in her name, presumably as a security for maintenance as her husband was wanting to re‑marry. It is stated that this condition was not acceptable to the late Haji Haibet, but the negotiations were not broken off, and the panchayat dispersed so as to meet again. It was during this recess in the negotiations that the present murders were committed, wiping out the entire family of Haji Haibet.

6. At the trial another motive was brought out in cross‑examination by Ahmad Khan (P. W. 10) to the effect that the wives of the convicts Muhammad Khan and Muhammad Ashraf were carrying on an illicit liaison with their cousins Yusuf and Gulla (sons of their maternal uncle) who used to visit them at the house of Haji Haibet. Vaginal swabs taken at the time of post‑mortem examination of the dead bodies of the three daughters of Haji Haibet were found, on chemical examination, to be stained with semen, thus giving support to the allegation that all the three daughters were indulging in extra‑marital sexual relations, after separation from their husbands.

7. According to the prosecution, Manzoor Hussain and his mother Mst. Khan Bibi were the first to be attacked when they were proceeding from their house to their field, and were passing by the Flour Mill of one Rashid Ahmad situate a little beyond the house of Isa (P. W. 16). The assailants were Salehoon and the remaining seven accused persons, out of whom Muhammad Khan and Ashraf were armed with guns whereas the rest were carrying hatchets. The initial challenge was thrown by the convict Muhammad Khan by shouting to Manzoor that they would arrange his second marriage that day. It is alleged that when Manzoor and his mother Mst. Khan Bibi fell down after receiving gun‑shot injuries, Salehoon and Mansha accused gave hatchet injuries to Manzoor deceased, whereas Umra, Yusuf and Noor Muhammad inflicted similar blows on Mst. Khan Bibi.

8. The second phase of the incident relates to the murder of Haji Haibet's daughter Mst. Sahib Bibi who was married to the convict Muhammad Ashraf. It is alleged that having finished Manzoor and his mother Mst. Khan Bibi all the accused persons were proceeding towards the house of Haji Haibet, declaring that they would finish the entire family, when they saw that Mst. Sahib Bibi was coming towards them. She was fired upon by tier husband Ashraf, followed by Muhammad Khan. She was subsequently attacked with hatchets by Umra, Yusaf and Noor. No overt act seems to have been assigned to Sulehoon with regard to the murder of Mst. Sahib Bibi.

9. All the accused persons then reached the house of Haji Haibet, who was at that time sitting on a charpoy in the courtyard alongwith his wife's brother Yaqoob (P. W. 17). Haji Haibet's daughter Mst. Fateh Bibi deceased was churning milk in the same courtyard and his daughter Mst. Amna Bibi was sitting outside the eastern room. It is alleged that Muhammad Khan convict fired two shots at his wife Mst. Fateh Bibi, whereas Muhammad Ashraf convict fired at Haji Haibet. At that time Mst. Amna Bibi deceased raised an alarm, whereupon she was also fired at by Muhammad Khan and Muhammad Ashraf. It is said that Salehoon and others then inflicted hatchet injuries on Mst. Fateh Bibi as well as on Haji Haibet. The assailants are said to have carried away an infant son of Mst. Sahib Bibi and a minor daughter of Mst. Fateh Bibi.

10. It will be seen that, apart from sharing the common intention of the other assailants, Salehoon is alleged to have actively participated in these murders by inflicting hatchet injuries on Manzoor, Mst. Fateh Bibi and Haji Haibat. In support of these allegations the prosecution has relied upon the ocular evidence of the first informant Muhammad Moosa (P. W. 15), a neighbour named Isa (P. W. 16) Yaqoob (P. W. 17) and Muhammad (P. W. 18). Then there is the recovery of a blood‑stained hatchet (Exh. P. 15) at the instance of Salehoon on the very next day of the incident, although on chemical examination the origin of the blood could not be ascertained as the same had disintegrated. Finally, reliance is also placed on the surrounding circumstances, namely, the community of motive, the admitted presence of Salehoon in his house at the time of the murders and his failure to make any efforts whatsoever to dissuade his sons and other relations from wiping out the family of his brother Haji Haibet.

11. In his statement under section 342, Cr. P. C. Salehoon admitted that his daughter Mst. Jannat Bibi was issueless, but stated that his deceased son‑in‑law Manzoor had never asked him about a second marriage, adding that he would have agreed to such a proposal, if approached in this behalf. In reply to all the other questions he simply denied the allegations, stating that he had been implicated due to the enmity of the prosecution witnesses. He did not produce any evidence in defence. During the course of his statement before the committing Magistrate, Salehoon had admitted that his daughter Mst. Jannat Bibi had returned to his house and his sons Muhammad Khan, Bashir and Muhammad Ashraf had sent away their wives to their parental home seven or eight months before the occurrence.

21. The main contention raised on behalf of the State is that there is no reason whatsoever for disbelieving the eye‑witness account given by Muhammad Moosa (P. W. 15) and Isa (P. W. 16), whose evidence is clearly sufficient to warrant the conviction of Salehoon without any further corrobo ration. It is submitted that they are equally related to both the parties and had no motive to falsely implicate Salehoon who is admittedly an elderly person of about 70 years of age. It is next contended that even if any corroboration was required, it was available in the recovery of the blood stained hatchet and the other surrounding circumstances appearing on the record, which establish beyond reasonable doubt that Salehoon was very much a party to the crime.

13. Before entering upon the merits of the case I would like to deal with the preliminary question touching the duty and powers of the third Judge acting under section 429 of the Criminal Procedure Code. It is sub mitted by Ch. Fazal Elahi, the learned counsel for the respondent Salehoon, that in the event of one of the Judges of the Division Bench forming an opinion favourable to the accused the third Judge should lean in favour of acquittal as a matter of prudence, especially when the difference of opinion has arisen in an appeal against acquittal. In support of this pro position the learned counsel has placed reliance on Re: Narish and others (A I R 1959 Andh. Pra. 313) which, in turn, appears to be based on Empress v. Debi Singh (1886A W N 275) and Khetri Bewa v. The State (A I R 1952 Orissa 37).

14. The relevant observations in the Andhra Pradesh case relied upon by the learned counsel for the respondent are: "Under sections 378 and 429 the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion. The words `after such hearing, if any, as he thinks fit' entitle him in appropriate cases to limit the scope of the hearing. Unless there are strong and compelling reasons to come to the con clusion that the opinion of the Judge favouring an acquittal is perverse, the golden rule to be followed by the third Judge is to give the benefit of doubt to the accused. The observance of such a rule does not amount to an abdication of his functions as a Judge under sections 378 and 429 of the Criminal Procedure Code."

5. Although this view derives support from the two cases mentioned above, yet it runs counter to the view taken in Empress v. Bundu (1887 A W N 125) and Re: Ravipati Sitasumayya (A I R 1953 Mad. 61) In this last mentioned case it was observed that "it is the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him for his opinion. Neither section 378 nor section 429 contemplates the dice being loaded heavily in favour of either view. The opinion expressed by some Judges, namely, that the normal disposal by a third Judge should be one of agreement with the opinion of acquittal, is not correct. It would be tantamount to a judgment of acquittal in practice prevailing over a judg ment for conviction."

16. This question was considered at some length by A. S. Faruqui, J. in Khurdoo and others v. The State (P L D 1963 Kar. 92) and the conclusion reached was:‑ "I am, therefore, of the view that having regard to the clear provisions of the two sections of the Code, which are identical, when the case is laid before the third Judge on difference of opinion the whole case is before him, and while there is no doubt that he is bound to give due consideration to the fact that another Judge of the same Court had reached the conclusion in favour of the accused, I am not prepared to say that he cannot hold otherwise except upon a finding that that view is perverse.

17. I find myself in respectful agreement with the view taken by Faruqui, J. in the case just cited. Speaking with great respect to the learned Judge who decided the case Re: Narsiah and others in the Andhra Pradesh High Court, it seems to me that there is an inherent contradiction in saying, on the one hand, that the whole case is before the third Judge and he is of at liberty to examine the whole evidence for himself and deliver his opinion; and, on the other hand, laying down the "golden rule" that he should favour the opinion of acquittal recorded by one of the differing Judges before whom the case comes up in the first instance. It is clear that such a rule would have the necessary effect of circumscribing the powers and judgment of the third Judge in violation of the clear language of the statute. It is also further clear that such a rule would, in effect, amount to prescribing that in the event of a difference of opinion between the two Judges com prising the Court of Appeal the accused shall either be acquitted or that dais acquittal shall not be interfered with in an appeal under section 417 of the Code. Such an Interpretation is not warranted by the statute, and would in fact render nugatory the provisions contained in sections 378 and 429, Cr. P. C. I consider, therefore, that in the present reference I have the power, and it is my duty, to examine the whole case afresh so as to form my own opinion with regard to the guilt or innocence of the res pondent Salehoon. It goes without saying that due weight has to be attached to the reasons given by the two learned Judges of the Division Bench in support of their respective opinions.

18. As the matter relates to an appeal against acquittal under section 417 of the Code of Criminal Procedure, it is appropriate at this stage to refer to the rule laid down by their lordships of the Privy Council in Sheo Swarup and others v. King‑Emperor (A I R 1934 P C 227(2))‑‑a rule which still holds the field‑that: "It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has `obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such `distorted con clusions as to produce a positive miscarriage of justice, or has in some other way so conducted or mis-conducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code, and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matter as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a pre sumption certainly not weakened by the fact that he has been ac quitted at his trial ; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

19. I now turn to an examination of the evidence available on the record to connect the respondent Salehoon with the crime. As already stated, there is, in the first instance, the ocular evidence of four persons, namely, Muhammad Moosa (P. W. 15), Isa (P. W. 16), Yaqoob (P. W. 17) and Muhammad (P. W. 18). The trial Court as well as the two learned Judges of the Division Bench have disbelieved Yaqoob and Muhammad. Nothing has been said before me by the learned counsel appearing for the State against this view. However, the evidence of the remaining two witnesses has been accepted throughout, and I see no reason to hold otherwise.

20. Muhammad Moosa (P. W. 15) is the person who made the first information report at Jaranwala Police Station at 9‑30 a.m. after covering a distance of eight miles. The occurrence having taken place at about 7‑00 a.m., the report was made without any avoidable delay, and all the necessary details of the crime were mentioned therein. During lengthy cross‑examination nothing whatsoever has been brought out to discredit, or to show any inherent weakness in his testimony. He is a paternal cousin and next‑door neighbour of Salehoon as well as the deceased Haji Haibet. It is conceded by the learned counsel for the respondent that this man had no motive whatsoever to falsely implicate Salehoon or the other mem bers of his family. The only criticism made against him is that be is some what more closely related to the deceased Haji Haibet than to Salehoon on account of the fact that he is the son of Mst. Fateh Bibi daughter of Ismail who was a cousin of the deceased Mst. Khan Bibi. It is submitted by Ch. Fazal Elahi that this aspect of the matter has been overlooked by both the learned Judges who have dealt with this case in the first instance. I am not at all impressed by this argument for the reason that Muhammad Moosa having no motive or enmity whatsoever to falsely implicate Salehoon and his sons etc., the fact that from his mother's side he is same what more closely related to the murdered wife of Haji Haibet does not, in any manner, affect his credibility. It has been laid down time and again that in order to describe a witness as an interested witness one has to see not merely his relationship with one party or the other, but also the fact whether he has any motive for false implication of the accused. Moosa being more or less equally related to the parties from his paternal side, I think he has rightly been regarded as a dependable witness. He has seen the occurrence from the beginning to the end and he has ascribed a specific part to the respon dent Salehoon, as to the other accused persons involved in this case.

21. More or less the same remarks apply with regard to the other eye‑witness Isa. He is also related to the parties from his paternal side, being the grandson of Daim, who was the brother of Qaim, the father of the deceased Haji Haibet and the respondent Salehoon. It was, however, submitted by the learned counsel for the respondent that here again there way closer relationship between this witness and the family of the deceased for the reason that Isa's mother Mariyam is the daughter of Khan, a brother of the deceased Mst. Khan Bibi. I have already observed, while discussing the evidence of Muhammad Moosa, that this relationship, by itself, is not sufficient to cast any doubt on the credibility of the witnesses, for the reason that they have no motive whatsoever to falsely implicate Salehoon who is an elderly uncle to them, by relationship, from their paternal side. No inherent contradiction or weakness has been brought out on the record in the evidence of this witness as well.

22. I consider that on the basis of the ocular evidence of Muhammad Moosa and Isa, Salehoon should be convicted. The question is whether any justification is made out, in the peculiar circumstances of the case, not to accept the eye‑witness account given by these two men as regards the part played by Salehoon in the entire transaction.

23. In the first place, there is, of course, the fact that the acquittal of four of the accused persons, namely, Mansha, Umra, Yusuf and Noor Muhammad, is being maintained by both the learned Judges of the Division Bench by giving them the benefit of doubt. I have already stated that in this behalf they have modified the finding recorded by the learned trial Judge to the effect that these four persons were falsely implicated. This is, therefore, not a case where the ocular evidence is being rejected in respect of any of the accused on the ground that they were knowingly and intentionally falsely implicated by the prosecution witnesses. In these circumstances, I am in respectful agreement with Zullah, J. that it is not necessary to insist on corroboration of the evidence given by the eye witnesses.

24. However, even if as a rule of precaution and safety one were to look for corroboration, it is to be found in the several circumstances proved on the record against the respondent. The first and foremost is the community of motive between Salehoon and his sons. It is clear that the respondent was aggrieved by the desire of his brother Haji Haibet and his family to arrange a second marriage for the deceased Manzoor, to the detriment of Salehoon's daughter Mst. Jannat. It is in evidence that negotia tions for settling the matter had failed, primarily owing to Haji Haibet's refusal to transfer some lance to Mst. Jannat for her maintenance in the event of her husband's second marriage. A further consequence of the break‑down of negotiations between the two families was that the wives of three sons of Salehoon had gone away from their husbands. These circumstances must have clearly created bitterness between the two families, and this bitterness could not be confined merely to the three convicted sons of Salehoon. In the context of our social environment Salehoon could not have remained unaffected by all these circumstances.

25. The second motive brought out at the prosecution, namely, the immorality of the three daughters‑m‑law of Salehoon, is also one which must have affected the respondent. It has been stated in the evidence that the deceased Haji Haibet and his son Manzoor as well as his wife Mst. Khan Bibi did not stop the visits of Mst. Khan Bibi's two nephews even though protests were lodged in this behalf by the husbands of the three murdered women. The two brothers' houses being next‑door to each other and each family being fully involved in the matrimonial disputes which had unfortunately arisen between them, I cannot accept the contention that Salehoon was unaware of this state of affairs. I am, therefore, of the view that Salehoon must have fully shared the motives and desires of his sons in this matter.

26. The learned trial Judge has expressed the view, in paragraph 72 of his judgment, that Salehoon could not have any motive to cause the deaths of his brother and his own son‑in‑law, as they were closely related to him. In expressing this opinion the learned trial Judge seems to me to have completely overlooked the fact that Salehoon being the head of his family, was fully involved in the dispute that was going on between his daughter and son‑in‑law, and the resultant dispute between his sons and their wives. If indeed the relationship between the parties was a deterrent against the commission of the murders in question, it should have equally applied to the sons of Salehoon who stand convicted of these murders. The learned trial Judge has himself accepted the allegation that the three sons of Salehoon murdered their own wives as well as their paternal uncle and his wife, and their paternal cousin Manzoor. In these circumstances, it cannot be said that Salehoon had no motive whatsoever to cause these deaths. The fact that by assisting in the murder of Manzoor, Salehoon would be widowing his own daughter is not such as could, in my view, falsify the direct ocular evidence of persons who had no motive to falsely implicate this old man. Once the entire background of this tragedy is kept in mind, it becomes impossible to hold that Salehoon would not be inspired by the same motives as his three sons.

27. The next circumstance, which lends support to the ocular evidence, is the fact that Salehoon's house is admittedly next‑door to that of Haji Haibet, and the intervening wall is only five feet high. It is, therefore, clear that he could not have been unaware of what was happening in and around that house, especially when it is remembered that his own three sons and sons‑in‑law etc., were participating in the crime. Both the learned Judges of the Division Bench have regarded as admissible in evidence the statement made in cross‑examination by the investigation officer to the effect that during the course of investigation Salehoon had taken the plea that at the time of the incident he was present in his house and was reciting the Qur'an. I consider that even this earliest plea by Salehoon goes to show that he was admittedly present in the vicinity and, therefore, in the natural course of human conduct he must have intervened either to assist in the crime or to prevent his sons from going to the extent to which they did. There is no indication on the record that he moved even his little finger to dissuade his sons from murdering the entire family of his brother. When this circumstance is looked at in its proper perspective, the conclusion becomes irresistible that Salehoon was a party to the designs of his sons and must have participated in the crime as stated by the eye‑witnesses.

28. Then there is the recovery of the blood‑stained hatchet at the instance of Salehoon, even though on chemical examination the blood was found to have disintegrated. In Ghulam Rasul v. Ali Akbar and others (P L D 1965 S C 363) the learned Judges of the Supreme Court observed that the recovery of the blood‑stained hatchets and clothes, even though the blood had disintegrated, served to support the direct evidence which was accepted by the Courts below.

29. It was, however, contended by Ch. Fazal Elahi that the recovery of the blood‑stained hatchet was of a doubtful value m this case for another reason also, namely, that the hatchet was not produced voluntarily by Salehoon, but on a demand having been made by the police in this behalf. The learned counsel referred to the statement of Shah Muhammad (P. W. 13), one of the recovery witnesses, to the effect that then the police demanded the hatchet from Salehoon. Salehoon offered to lead the police for recovery of hatchet". It seemed to the learned counsel that the recovery was thus forced by the police. I see no merit in this argument. The entire evidence of Shah Muhammad is couched in the words that the police demanded the hatchet from this accused and then from that accused and that these men then brought out the incriminating articles. This is only a manner of statement, and the substance is that the accused persons concerned led to the recovery of the incriminating articles. The recoveries were clearly within the meaning of section 27 of the Evidence Act.

30. As against the circumstances mentioned above, emphasis was laid by the learned defence counsel on the fact that no blood‑stained clothes were recovered from the person, or at the instance, of Salehoon and, therefore, it should be held that he did not attack the deceased persons with a hatchet. This circumstance was sought to be contrasted with the recovery of blood‑stained clothes from the persons of two of the convicts who had used guns and were, therefore, not as close to the deceased persons as Salehoon. The non‑recovery of blood‑stained clothes has also been made a ground of acquittal by the learned trial Judge.

31. While it is true that blood‑stained clothes have not been recovered from, or at the instance of, Salehoon, yet it is clear that this omission does not, in any manner, suffice to falsify the ocular evidence. Salehoon was produced before the police officer on the next day of the occurrence at 9‑00 a.m. by Lal Khan Lambardar. Thus twenty‑four hours had elapsed between the occurrence and the arrest of Salehoon, allowing him sufficient opportunity to discard the clothes which he was wearing at the time of the incident. It is not the duty of the prosecution, in such circumstances, to show as to what happened to the clothes in question. If they had been recovered and had been found to be stained with blood, they would have provided valuable corroboration, but their non‑recovery does not, in any manner, reflect upon the truthfulness of the eye‑witness account. During the time that elapsed between the incident and the arrest of Salehoon he had ample opportunity to do away with his clothes, if they had indeed been stained with blood. I cannot, therefore, agree with the learned trial Judge that the non‑recovery of these clothes was a factor entitling Salehoon to acquittal.

32. One other factor to which attention must be drawn is the advanced age of the respondent. I have already stated that he is said to be about 70 years old. At the time he appeared before me in Court during the hearing of this appeal, he did seem to be ailing and infirm. The incident happened nearly four years ago. In the absence of positive evidence to the contrary, I am not prepared to hold, merely on the basis of speculation and conjec tures, that on the 15th of October 1966 Salehoon was indeed physically unable to wield a hatchet in the manner alleged by the prosecution. One cannot help remarking that since the incident Salehoon must have suffered by remorse at the tragedy, his own implication in this case and the con viction of his three sons who have been condemned to death by the trial Court. All these factors must have resulted in deterioration of his health. 1, therefore, regard it as completely unsafe to base any finding on the present state of his health and age, in the presence of unimpeachable evi dence regarding his participation in the crime. It must not be forgotten that out of the fifty‑three injuries found on the six deceased persons twenty six had been caused by hatchets, thus showing that the prosecution story about the wielding of hatchets by a number of accused persons is fully sup ported by the medical evidence.

33. My conclusions may be summed up by saying that I consider the ocular evidence of Moosa and Isa to be reliable and sufficient to warrant conviction of Salehoon. To this extent therefore the learned trial Judge was in error in thinking that the case was not proved against Salehoon. The mere fact that four of the accused persons stand acquitted by being given the benefit of doubt did not mean that the oral evidence could rot be acted upon, as against Salehoon, in the absence of corroboration. The learned trial Judge was clearly misled in taking such a view. Further even if corroboration was to be looked for, it was available in the surrounding circumstances of the case, namely, the community of motive between Salehoon and his sons, the presence of Salehoon in the vicinity at the time of the commission of the crime, and the recovery of a bloodstained hatchet at his instance, even though the origin of the blood could not be ascertained due to disintegration. The negative circumstances urged on behalf of Salehoon, namely, his old age and physical infirmity and the non‑recovery of blood‑stained clothes, are merely in the nature of speculative conjectures which cannot be allowed to nullify the effect of the direct evidence of wit nesses, who are more or less equally related to the parties and who had no motive whatsoever to falsely implicate this elderly man of 70 years of age. Being relations and neighbours they were the natural witnesses of the crime.

34. For these reasons I would accept the State appeal, set aside the acquittal of Salehoon and convict him under section 302 read with section 34, Pakistan Penal Code, for the murders of Haji Haibet, his eon, his wife and his three daughters. In view of the old age of the respondent and the ex pectancy of life entertained by him owing to his acquittal at the trial, I would sentence him to transportation for life on each count, to run con currently, He is on bail and shall be arrested to undergo this sentence. Acquittal set aside.