P L D 1962 (W (PLP)

FAIZULLAH, J.‑Sardar Khan, son of Shahwali, aged 18 years, Ahmad Khan, son of Sultan Khan, aged 30 years, Adam Khan, son of Sultan Khan, aged 40 years, Muhammad Azam, son of Allah Dad, aged 40 years and Muzaffar Khan, son of Allah Dad, aged 35 years, Pathans of village Sultanwala Sharqi, were tried by Mr. Muhammad Anwar, Sessions Judge of Mianwali, for offences under sections 148 and 302/149 of the Pakistan Penal Code for having constituted an unlawful assembly on the 24th of November 1960, at digarwela, and in prosecution of the common object of that unlawful assembly caused the death of Zarif Khan of village Sultanwala Sharqi with firearms. Sardar Khan and Ahmad Khan were convicted under section 302/34 of the Pakistan Penal Code. The former was awarded transportation for life while, the latter was sentenced to death, subject to confirmation by this Court. The remaining three accused were acquitted as the learned Sessions Judge thought that they had been falsely involved and that, at any rate, the case against them was very doubtful. Ahmad Khan and Sardar Khan have preferred a joint appeal and the record of the case is also before us under section 374, Criminal Procedure Code, for confirmation of the sentence of death impos ed on Ahmad Khan. This judgment will dispose of the appeal as well as the reference. It may be pointed out here that the State had preferred an appeal against the acquittal of the three accused, but the appeal was dismissed by us in limine on the 13th of Novem ber 1961.

2. The prosecution story as revealed at the trial may be shortly narrated. About two years back, Shahwali, father of Sardar Khan appellant, was murdered. Saadullah, Sher Ali and Amir Khan, sister's sons of Zarif Khan deceased, were charged for the offence. Amir Khan, besides being the sister's son of Zarif Khan, was also his son‑in‑law. All the three aforesaid persons were, however, acquitted. Zarif Khan deceased, who being closely related to the three accused, would naturally be very much interested in their defence. The prosecution alleged that the accused, who are closely related to each other, felt very much annoyed with Zarif Khan for arranging the defence of the accused. It will be convenient here to give the relationship of the five accus ed inter se. Muhammad Azam and Muzaffar Khan accused are brothers and they are the brothers of the mother of Sardar Khan accused‑appellant. Ahmad Khan and Adam Khan are first cousins of Sardar Khan appellant.

3. On the day of occurrence, Zarif Khan deceased, at about peshi time, visited the Wandah of one Zaman Khan to enquire about his health as Zaman Khan was said to have an ulcer in the leg. Sultan (P. W. 10) and Muhammad Nawaz (P. W. 11), brother and nephew respectively of the said Zaman Khan, were also present when the deceased visited Zaman Khan. At about digar time, Zarif Khan deceased took leave of Zaman Khan and proceeded towards his Wandah. Sultan and Muhammad Nawaz P. Ws. went to see off Zarif Khan deceased up to a distance of about 140 karams from their Wandah and then took leave of Zarif Khan and were returning to their Wandah, and had hardly covered 13/14 karams when they heard the challenge of Sardar Khan appellant, saying that they would not let Zarif Khan escape for having helped in the murder of his father. They looked round and saw the five accused, all armed with firearms, running towards Zarif Khan. The latter in vain be sought the accused not to do him any harm, for Ahmad Khan accused fired at the deceased which bit him and felled him to the ground, and then the other four accused also fired shots which, however, missed the deceased. Sultan and Muhammad Nawaz implored the accused not to do any further harm to the deceased, as he was already dead. Amir Khan (P. W. 8) and Ayyub Khan (P. W. 9), sons of the deceased, who were plucking water melon vines from their field at a distance of about 100 karams were attracted by the challenge of the accused and witnessed the assault from a distance of 30 karams. When Sultan, Muhammad Nawaz, Ayyub Khan and Amir Khan went to the deceased, they found that he was dead.

4. A cot was brought from the village of the deceased and the deceased was taken on it to the police station by Amir Khan (P. W. 8), while Ayyub Khan (P. W. 9) remained on the spot. Amir Khan (P. W. 8), lodged the first information report Exh. P. A. at Police Station Musakhel, at 6‑45 p.m., at a distance of about seven miles from the scene of occurrence, substantially giving the prosecution story as given above. Haq Nawaz Khan, Station House Officer (P. W. 12), after recording the first information report, prepared the injury statement Exh, P. G. and the inquest report Exh. P. H. and then proceeded to the scene of occurrence, reaching there at 10‑45 p.m. The following day, five empty shells Exhs. P. 2 to P. 6 were recovered from the scene of occurrence by Amir Khan (P. W. 8) and delivered to the Station House Officer who took the same under recovery memo. Exh. P. B. The Station House Officer on the 27th of November 1960 recovered the rifle Exh. P. 7 and five live cartridges Exhs. P. 8 to P. 12 at the instance of Sardar Khan accused from the heaps of jawar. The rifle and the five empties recovered from the scene of occurrence were sent to the Forensic Expert. The report of the Forensic Expert was received and placed on the record, but for reasons best known to the prosecution, he was not called to prove the report.

5. Dr. M. Z. Khan (P.W. 1), who performed the post mortem examination on the 25th of November 1960 at 12 noon, found the following injury on Zarif Khan's dead body:‑ (1) A wound of entry, " x 3/8" on the left side of the chest, 4" from the axillary pit and 3 ' from nipple in the mid‑axillary line. It went forwards and inwards and made an exit, 2 " x 1 " on the right side of the chest through and around the nipple. It was mostly on the inner and lower part. (2) In the thorax, fifth rib on the left side had been fractured at the entrance, and third, fourth, fifth and sixth ribs had been fractured on the right side at the exit side. The pleaurae were wounded, left pierced through and through and right smashed at the site. Both cavities contained left two pounds and right three pounds of blood mostly fluid. The right lung was smashed on the middle and lower lobes. The left lung pierced through the upper lobe and lower part. The pericardium and the heart had been smashed and were coming cut through the exit wound. Death, in the opinion of the doctor, was due to shock and hae morrhage caused by rupture of the heart and injury to the lung.

6. Amir Khan (P. W. 8), his brother Ayyub Khan (P. W. 9), Sultan (P. W. 10) and Muhammad Nawaz (P. W. 11) appeared as eye‑witnesses in the case and substantially repeated the prosecu tion story as narrated above. Ghulam Hussain (P. W. 2) is Chowkidar of village Sultanwala Sharqi. He was produced by the prosecution primarily to prove the recovery memo. in regard to the collection of blood‑stained earth from the spot, the recovery of the rifle Exh. P. 7 and five live cartridges at the instance of Sardar Khan accused. On cross‑examination, to quote the language of the learned Sessions Judge, he sprang a surprise by saying that he was in Wandah Alikhel when he heard the report of gun‑fire. People from that Wandah went to the spot on hearing that report. He ran towards the scene of occurrence and was the first to arrive on the spot and saw Zarif Khan deceased lying dead on the path. Within a minute or a half of his arrival Amir Khan and Ayyub Khan, sons of the deceased, and Sultan and Muhammad Nawaz arrived from their respective Wandahs. None of the aforesaid prosecution witnesses mentioned having seen the occurrence. The witness was declared hostile and on cross‑examination by the Public Prosecutor he stated that he was working as Chowkidar for about last twenty years and was living in the house of Zaman Khan Lambardar and that his main‑stay was his employment as a Chowkidar. The witness did not know if there was any contest between Zarif Khan deceased and Zaman Khan in regard to a Lambardari. The witness, on cross‑examination by the defence, stated that he had not seen any empty shell at or near the spot of occurrence where he remained till the arrival of the Station House Officer.

7. All the accused pleaded not guilty to the charge and stated that they had been charged on account of enmity. Ahmad Khan accused in reply to question No. 12 stated as follows:‑ "I am innocent. I made an application to the District Magis trate, Mianwali, against Saadullah, Sher Ali and Amir Khan and requested that an appeal against their acquittal be filed before the High Court. The appeal was actually preferred in the High Court as a result of which all these three persons were re‑arrested."

8. The learned Sessions Judge rejected the testimony of Amir Khan and Ayyub Khan as false witnesses. The reason which prevailed with him in recording this conclusion is better repro duced in the language of the learned Sessions Judge himself when in para. 7 of the judgment he observed: ‑ "The third ground is that the story of their having come to the melon field for removing the vines has been proved to be incorrect from the revenue records. According to Ayyub Khan (P W. 9), he and his brother Amir Khan had come at the melon field about two days before the day of occurrence and had removed the vines from that field from an area of about two kanals. The khasra girdawari Exh. D. A. shows that the water melons had been sown in that field in only about 15 marlas of land. This evidently means that if Ayyub Khan and Amir Khan had already removed vines from this field there could be no occasion for them to have gone again in that field for the removal of the vines. I agree with the learned counsel for the accused that the presence of Amir Khan and Ayyub Khan near the spot of occurrence is a matter of extreme doubt. I do not place any reliance on the statements of those witnesses."

9. The learned Sessions Judge also disbelieved the recovery of the five empty shells (Exhs. P. 2 to P. 6) and held that this piece of evidence was a concoction, as indicated from the follow ing excerpt from para. 6 of his judgment, which reads thus: ‑ "So far as the factum of the recovery of the empty shells, Exhs. P. 2 to P. 6, from near the spot of occurrence is concerned, I entertain no doubt about the fact that this piece of evidence is a concoction. Out of the four eye‑witnesses, Ayyub Khan (P. W. 9) states that he had seen these empty shells near the spot of occur rence before the arrival of the police. It is surprising that he did not point out these empty shells to the S. H. O. when that officer arrived at the spot of occurrence the same night. It did not require much of light for these empty shells to be pointed out by Ayyub Khan to the Police Officer. Moreover, there could possibly be no object in the culprits unloading their firearms at that place and throwing away the empty shells when they had already killed Zarif Khan. The occurrence had taken place at digarwela and yet none of the other eye‑witnesses claims to have seen these empty shells near the dead body at the time. I take it that these shells were placed by Ayyub Khan or by some one at his instance near the spot of occurrence from where they were subsequently recovered by the police officer."

10. The learned Sessions Judge thought that Sultan (P. W. 10) and Muhammad Nawaz (P. W. 11) were present on the spot at the time of the occurrence. While admitting that Zarif Khan had friendly relations with Sultan and the members of his family held that "that by itself is no ground to disbelieve him and his brother's son Nawaz. In paragraph 12 of the judgment the learned Sessions Judge, while considering the question of the guilt of the five accused, reached the conclusion that only two out of the five accused, namely Sardar Khan and Ahmad Khan, had participated in the crime and the other three had been falsely implicated. The material portion of the paragraph reads thus: "Zarif Khan was an old man of about 60 years and did not have a strong constitution. He had no weapon on him when he had gone to inquire of the health of Zaman in the southern Wandah and had no weapon on him when he was coming back to his own Wandah. It did not require five gunmen to kill an old man like Zarif Khan who had no weapon on him. I have stated above that the story that five empty shells were recovered from near the spot of occurrence is a concoction. The witnesses have stated that after Zarif Khan had been injured by the fire shot by Ahmad Khan accused, the other four accused also fired at Zarif Khan when he was falling down but all of them missed their aim. I consider that in stating the names of all the five accused as the assailants of Zarif Khan and in further stat ing that after the shot of Ahmad Khan accused, the other four also fired shots at Zarif Khan, the witnesses have not stated the truth. The empty shells were sent to the Forensic Expert but his report was left unproved. The accused are within their right to say that if the Forensic Expert had been produced he would have made a statement favourable to them in this that these shells had not been fired from different firearms and had been fired by one firearm. I am of the view that only two accused had gone to commit the murder of Zarif Khan. One of them was Sardar Khan whose father Shahwali had been murdered about two years back and who had a strong complaint against Zarif Khan that he had helped in getting the accused of that case acquitted. This Sardar Khan is a young boy of about 18 years and is of a weak constitution. Presumably he did not possess enough guts and courage to commit the murder and, therefore, enlisted the help of his cousin Ahmad Khan accused. Both the eye‑witnesses state that it was Sardar Khan accused who shouted the challenge and that it was Ahmad Khan accused who fired the fatal shot. The other three accused appear to have been falsely involved. At any rate, the case against those three is very much doubtful."

11. With regard to Ghulam Husain (P. W. 2) the learned Sessions Judge disbelieved him on the point that he was the first person to reach the scene of occurrence and that the four eyewit nesses had reached after him. The reasons for which this witness was disbelieved were (1) that he was a marginal witness for certain recovery memos ; (2) that perhaps he was giving the evidence at the instance of Zaman Khan Lambardar who had litigation about 30 years back with Zarif Khan in regard to Lambardarship, and (3) that Wandah Alikhel was at a greater distance as compared to the Wandah of the four eyewitnesses, and, as such, the witness could not have been the first to arrive at the spot.

12. Mr. M. Saleem, on behalf of the appellants, made a three‑fold submission : Firstly, that P. Ws. Sultan and Muhammad Nawaz were not truthful witnesses and that they had supported the prosecution case being partisans of the deceased. Secondly that even if their presence on the scene of occurrence was believed, they were not worthy of credit, for they had givers a most exaggerated version of the occurrence by deliberately Implicating at least four innocent persons out of the five accused, assuming that one out of the five was the assailant. It was further argued that in view of the partisan character of P. Ws. Sultan arid Muhammad Nawaz and the fact that their evidence had been disbelieved in respect of the three accused it was not safe to believe their evidence in regard to the two appellants in absence of some independent corroboration. Sardar Zafarullah, Advocate for the State, argued that P. Ws. Sultan and Muhammad Na>va; were truthful witnesses, and the fact that they had been disbelieves. in respect of the three accused would not justify the rejection of their testimony with regard to the two appellants. Sardar Zafar ullah when confronted with the question as to whether he could point out any difference between the case against the acquitte6 accused and the two appellants, merely suggested that Ahmad Khan was stated to have fired the fatal slot.

13. The decision of the case, in my view, mainly hinges on the credibility of Sultan and Muhammad Nawaz P. Ws. The first question which calls for decision was as to whether the two witnesses were present at the time of the occurrence. I have given this question my very anxious thought and 1 have formed the opinion that the two witnesses were not present on the scene of occurrence and that they have come forward to support the prosecution evidence being the satellite of the complainant party. I now proceed to give my reasons in support of this view. There is no denying the fact that Sultan and Muhammad Nawaz P. Ws. are chance witnesses, and but for the suggestion that they accompanied the deceased up to the scene of occurrence, they could not be expected to be present on the scene of occurrence. I own to serious doubts as to whether Zarif Khan deceased visited the Wandah of Zaman Khan at all. The pro secution might have been expected to produce Zaman Khan who allegedly had an ulcer in his leg and for that reason the deceased had allegedly visited him. Haq Nawaz, Station House Officer; P. W. 12), stated that he went to Ahmad Khelanwala and recorded the statement of the said Zaman Khan. It is, however, surprising that the prosecution should not have produced Zaman Khan to testify to the fact that the deceased had called on him to enquire about his health. It is admitted by Sultan (P. W. 10) that one Khan Beg of Muhammad Khel had snatched a gun from Amir Khan. Thereafter he, his brother Zaman, Amir and his father Zarif and some others were prosecuted for the abduction of Khan Beg. Sultan P. W. also owned the fact that in the year 1947, in a civil case, Zarif Khan had given evidence in his favour and that Hayatullah, a relation of Ahmad Khan and Adam Khan accused had appeared for his consanguine brother. Exhibit D.B, is the certified copy of the statement of Zarif Khan deceased. 11 follows from the above that Zarif Khan deceased and P. Ws, Sultan and Muhammad Nawaz were on very friendly terms and it could not be coincidence that the deceased along with his ‑ son should be a co‑accused with Sultan in the abduction case of Khan Beg, and again Sultan should support them and Zarif Khan should appear as his witness in a civil litigation against his consanguine brother. Lastly but not least, the suggestion that the deceased should be seen off to the scene of occurrence does not ring true. Generally, a visitor is seen off at the most to the outskirts of the village, and, as such, there was no occasion for the deceased to be accompanied as far as 140 karams out of the village. It is not the prosecution case that Sultan and Muhammad Nawaz P. Ws. wanted to see the deceased safe up to his village. Assuming, without conceding that Sultan and Muhammad Nawaz were present, the question still remains as to whether they are worthy of credit. I have given this question my earnest consideration and I am of the view that both the witnesses stand completely discredited and it would not be safe to believe their testimony in regard to the two appellants. It is a well‑established rule of prudence that when prosecution witnesses are discredited in respect of majority of the accused, it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corroboration in respect of the each accused.. This rule of prudence is rendered all the more essential when it is proved that witnesses have deliberately committed perjury as In the present case. There is no denying the fact that Sultan and Muhammad Nawaz P. Ws., have falsely sworn that P. Ws. Ayyub Khan and Amir Khan were present on the scene of occurrence. I am fortified in this view by many authorities. Reference may be made to the following decisions. Shukul and others v. Emperor (A I R 1933 All. 314) and Man Singh and others v. Emperor (A I R 1933 All. 401). It was ruled in these authorities that where it 1s definitely proved that a witness has deliberately committed perjury in falsely implicating many accused, it is impossible to accept his evidence against the other accused. These decisions were assented to by a Bench of the Lahore High Court in Ghulam Rasul v. Emperor Cr. App. No. 320 of

934. This view was also approved in the decision or Jit Singh v. Emperor (A I R 1935 Lah, 922). Reference may also be made with ad vantage to the decision of Mahla Singh v. Emperor (A I R 1931 Lah. 38), where Dalip. Singh, J., agreeing with Harrison, J., observed at page 46 as follows: "As rightly remarked by one of the learned Judges in appeal, when witnesses have been disbelieved about five persons out of six alleged to have taken part in a murder, their evidence would have to be particularly convincing before the sixth person could be convicted and sentenced to death on such evidence. I have had occasion once before to point out that though the maxim "falsus in uno falsus in omnibus" does not apply with full force in this province, nevertheless prosecution witnesses who delibera tely set about implicating innocent persons run a grave risk of finding that their evidence may be disbelieved in toto even against persons who the Court may have reason to suspect had taken part in the crime. It is impossible for a Judge of this Court to be able to sift the evidence with such certainty that be can positively reject the false part and distinguish it from the true part with that certainty which is necessary before a man can be sentenced to death. Of course there may be exceptional circumstances where it is so possible, but I do not think after giving my best attention to the matter that this is one of those cases." In the case of Nihal Singh Dewa Singh and others v. Emperor (A I R 1940 Lah.157) Young, C. J at page 158 observed "If we had no doubt about the eye‑witnesses' evidence it is obvious that we would need no corroboration of that evidence. It is only where there is some doubt about a witness that the rule of prudence demands corroboration of his evidence. With regard however to Harnam Singh and Tarlok Singh, the only evidence against them is that of the four eye‑witnesses. There being no corroboration of these witnesses' evidence as regards Harnam Singh and Tarlok Singh, we must accept their appeal." In Ashraf and others v. The Crown (P L D 1956 F C 86), all the three Judges agreed that when the impartiality of the eye‑witnesses were doubted for being partisan, there should be some corroboration in respect of each accused, though there was some difference of opinion between Muhammad Munir, C. J. and the other two learned Judges in regard to the quantum of corroboration. Munir, C. J. held that the true rule governing such situations was that the corroborative evidence should at least tend to show that the evidence of the witnesses when they name the accused as taking part in the crime is true. Shahabuddin and Muhammad Sharif, JJ., on the other hand, held that the corroboration must be such as would remove the doubt that the accused had been falsely implicated. Mr. Salim relied on the decision of the Supreme Court in Rehmat and others v. The State (P L D 1959 S C (Pak.) 109), Cornelius, J. as his Lordship then was at page 118 summed up the position thus: - "In our opinion, the approach of the learned Judges to the appraisement of the evidence of individual witnesses was not based upon a full comprehension of all the circumstances appearing in the case, from the making of the initial report, up to the recording of evidence at the trial. When the evidence of the eye‑witnesses is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the eleven persons accused in the case was based, not upon direct knowledge of their participa tion, but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye‑witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by Itself may suffice to show beyond reasonable doubt, his implication in the crime. No.1 circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence." I would wind up the examination of the authorities by quoting some observations of Lord Tucker in the decision of the Privy Council in Mohammad Faiz Bakhsh v. The Queen (P L D 1959 P C 24). At page 27 his Lordship while delivering the judgment observed "If these statements afforded material for serious challenge to the credibility or reliability of these witnesses on matters vital to the case for the prosecution it follows that by cross examination‑or by proof of the statements if the witnesses denied making them‑the defence might have destroyed the whole case against both the accused or at any rate shown that the evidence of these witnesses could not be relied upon as sufficient to displace the evidence in support of the alibis. Their credibility cannot be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question it cannot be right to accept their verdict against one and re‑open it in the case of the other. Their Lordships are accordingly of opinion that a new trial should have been ordered in both cases.

14. Judged in the light of the above authorities, the conviction of the appellants cannot be sustained. For one thing, as already remarked, the learned Sessions Judge has rejected the evidence of P. Ws. Ayyub Khan and Amir Khan as untruthful witnesses. The learned Sessions Judge has also held the recovery of the five crime shells as concoction. He has also disbelieved the evidence of Sultan and Muhammad Nawaz P. Ws. in respect of three out of the five accused, and the appeal of the State against their acquittal has also been dismissed as unmeritorious. It is also in evidence that a rifle Exh. P. 7 was allegedly produced by Sardar Khan, but it is remarkable, as already indicated, that the rifle was sent along with five empty shells to the Ballistic Expert, but for reason best known to the police, the report of the Ballistic Expert was not proved and, as rightly remarked by the learned Sessions Judge, the accused are entitled to insist that the Court should presume, under section 114, Illustration (g), that all the five crime shells were fired from one rifle and, at any rate, the rifle Exh. P. 7 was never used. In other words, the recovery of the rifle Exh. P. 7 at the instance of Sardar Khan is another attempt by the prosecution at procuring false evidence. I cannot help remarking that the practice of the prosecution in sending crime shells to the Ballistic Expert and then withholding the report, is to be strongly depreca ted in that it is the duty of the prosecution to produce all the l material evidence of an independent nature, like that of the Ballistic Expert. The interests of justice demanded that the report of the Ballistic Expert should have been proved so that the Sessions Judge and the Appellate Courts should have been able to form a correct opinion as to whether five empty shells were fired (1) from one firearm or more. The inevitable result of failure of the prosecution to prove the report of the Ballistic Expert was that the Sessions Judge rightly drew an inference against the prosecu tion that all the crime shells had been fired from one firearm. The learned Sessions Judge has, however, in my opinion, erred in holding that more than two assailants were concerned in the murder of the deceased. As indicated, the deceased had one bullet injury on his person and, in the circumstances of the case, the only reasonable inference to be drawn was that only one assailant was concerned in the murder of the deceased. If only one person was the assailant, it is impossible to say which of the five accused was the real assailant, (even if it Is assumed that only one of the five was the assailant). It was contended with some emphasis that since Ahmad Khan has been attributed the fatal shot, it was to be presumed that the deceased had received the gunshot injury at the hands of Ahmad Khan. I am unable to accede to this argument in that if one accused was responsible for the fatal injury to the deceased it is difficult to hold that Ahmad Khan is proved to have been the assailant, simply because he is being attributed the fatal shot. One other aspect of the case requires consideration and it is that it has been admitted by Haq Nawaz, Station House Officer (P. W. 12) that there was jawar crop towards east of the spot of occurrence and he had made some person lie down in the crop and found that a person walking on the foot‑path could not see the person lying in the jawar crop. He had further stated that there were some traces in that jawar crop of certain persons having previously concealed themselves by lying down, because some jawar canes appeared to have been pressed down by weight. Though the Station House Officer gave the height of the jawar to be one foot, the Patwari has, on the other hand, stated that the height of jawar near‑by everywhere was about five feet. The site plan (Exh. P. F.) would reveal that in field No. 1276 there was jawar and the nearest point of this field where the deceased was killed is about 40 karams. The reasonable possibility of the assailant, having fired at the deceased from this field, therefore, cannot be excluded.

15. The last point which requires consideration Is the evidence of Ghulam Husain Chowkidar (P. W. 2). The learned Sessions Judge had disbelieved this witness on the point that zee was the first to arrive at the scene of occurrence and that the four eye‑witnesses arrived soon after his arrival. It is, however, inter esting to note that in paragraph 13 of the judgment Ghulam Hasain Chowkidar was treated as disinterested. The material portion of the judgment reads: - "The memo. Exh. P. D. about the recovery of the rifle and the cartridges was attested by Ghulam Husain Chowkidar (P. W. 2) and Sultan (P. W. 3), both of whom are disinterested witnesses and prove the factum of recovery." It stands to be explained how this witness is disinterested in regard to the recovery of the rifle and the cartridges and he becomes interested when he deposed in favour of the defence. The principal reason for disbelieving his testimony was that the witness was under the influence of Zaman Khan Lambardar, who, thirty years back, had laid a claim to the Lambardari of Zarif Khan. The only basis for this finding is that Sultan (P. W. 3) had stated in cross‑examination that thirty years back there was a contest between Zarif Khan and Zaman Khan in regard to the Lambardarship. Assuming that Sultan made a correct statement, I do not think it to be a sufficient reason for Ghulam Husain to tell lies and speak in favour of the defence at the risk of losing his job if he were not a truthful witness.

16. It follows from the above discussion that the prosecution has failed to bring home the guilt to both the appellants beyond reasonable doubt, and giving the benefit of doubt I would accept the appeal and acquit both the accused‑appellants. The death sentence awarded to Ahmad Khan appellant is, therefore, not confirmed. ORTCHESON, J.‑I agree. K. B. A. Appeal accepted.