P L D 1977 Supreme Court 413 (PLP)

MUHAMMAD AKRAM, J.-Respondents Nos. 2 to 9 were tried by the Additional Sessions Judge, Sukkur, on charges tinder section 302/307 read with sections 148 and 149, P. P. C. and section 13 (d) of the Arms Act. He convicted respondents Nos. 4, 6 and 7 under sections 302/34 and 307/34, P. P. C. but acquitted the other respondents. The three convicted persons went up in appeal to the High Court and the sentences of death awarded against them were also referred to the High Court for confirmation. The State also appealed against the acquittal of the other five respondents. The High Court dismissed the appeal by the State and allowed the appeal of the three convicted persons and they were ordered to be set at liberty. This is an appeal by special leave by Shahzado complainant against the judgment of the High Court. The incident, according to the prosecution, occurred on the 17th of July, 1967 at about 7-30 a. m. at the bus stand on the Sukkur-Shikarpum Road, near village Soomar, within the area of Police Station, Bagerji. It is alleged that Shahzado appellant and his party were waiting at the bus stand in order to catch a bus to go to Sukkur. Except for Umer Daraz, they had to attend the Court of Mukhtiarkar and F. C. M., Sukkur in connection, with the 107, Cr. P. C. security proceedings pending against them. While they were sitting at the bus stand, the accused party, respondents 3 to 9, came there in a green coloured jeep from Sukkur side. The jeep passed by them and stopped at a distance of about 20-25 paces Haji Jumo, Mohammad Hashim, Nazo, Warial Abdul Hamid, Behram and Faiz Mohammad respondents Nos. 2 to 8 respectively alighted from the jeep armed with guns. Gbulam Abbas respondent No. 9 who was the driver of the jeep did not get down and drove it away. Thereafter on the instigation of Abdul Hamid all the accused fired from their guns at the complainant party and they ran helter skel r to save their lives. taut Umar Daras, Gal Mohammed and Saffar receive fatal injuries and died at the spot. Shahzado appellant also sustained a pellet injury on his left cheek. He ran towards the rice husking machine of his uncle Gal Mohammed. Abdul Hamid and Naze. accused pursued him firing at him. He toot, shelter in the machine premises where he saw Haji Ramzan lying injured in a room while Ishaque was also present there. Ishaque and Haji, Ramzan told him that on having heard gunshot reports they looked through the window and saw Nazo and Abdul Hamid accused standing at about 20-25 paces from the machine premises. Abdul Hamid fired a gunshot at them which hit Haji Ramzan P. W. at his cheek near the left ear. No one went to lodge a report of this incident. As it happened one Wajid Ali (C. W. 1). Reader of Civil Judge and F. C. M.. Ghotki was on his way from Shikarpur to Ghothki in a taxi. He stopped at this place and was informed by other persons standing there that the dacoits were committing murders but he saw no dacoits there. He however, saw one person lying in a Khama (ditch) about 20 feet deep. Without inquiring any further, he left by the same taxi and reached Sukkur. He hurriedly went and informed Nazeer Hussain, P. W., Reserve Inspector, Police Lines, Sukkur about what he had seen and heard. His statement was not recorded. But the Inspector Incharge telephoned to Jehan Shah (P. W. 18), S. H. O., Bagerji Police Station and informed him that three murders had taken place near Soomar village within his jurisdiction. This message was recorded in daily diary by Jehan Shah at 8-30 a. m. He then went to the place of occurrence and met the appellant at the rice husking machine and recorded his statement on a sheet of paper at 9 a. m. This was sent to the Police Station where the F. f. R. was formally recorded. The motive alleged by the appellant for the incident was that about two years before it father of Behram accused had been murdered and for that his relations namely Gal Mohammed and others were tried and were sentenced to death and their appeals against the judgment were pending in the High Court. Again a year before this occurrence, father of Abdul Hamid accused was murdered in which relations of appellant were sent up and the case was pending in the Court of Session. It was to avenge these murders that the accused persons mounted this attack on the appellant them and his companions, killed three persons and injured two of them. At the spot Jehan Shan S. H. O. prepared the Mashirnamas of the injuries on Shahzado and Mohammad Ramaan P. Ws. and sent them for medical examination. He also saw the dead bodies of Umar Daraz, Saffar and Gal Muhammad deceased lying at the site. The dead body of Gal Mohammad was lying on a heap of stones by the side of the road. The dead body of Umar Daraz was lying at 10 paces from the dead body of Gail Mohammad on the Kataha road leading to Soomar village. The third dead body of Saffar was lying in a ditch by the side of the road at 62 paces to the south from the dead body of Gal Mohammed. The Investigating Officer collected the blood-stained earth from the places where the dead bodies were lying. He also prepared the inquest reports and sent the ,dead bodies under escort to the Civil Hospital, Sukkur for post-mortem examinations. He also recovered two .12 bore empty cartridges lying two paces away from the dead body of Gul Mohammed. He made all these into separate sealed parcels. The Investigating Officer also visited the room in the premises of the machine belonging to Gul Mohammed and saw Mohammad Ramzan lying injured there and found blood-stained marks on the straws and grains in the room and secured them into a parcel. He also saw pellet marks on the outer side of the wall of the room and secured one pellet from the wall. At a distance of about 25 paces from the premises of the machine he :Pound one .12 bore empty cartridge of Eley Company from the plantation in between the road and the machine. He made these articles also into sealed parcels, On the 18th of July, 1967 S. H. O. Jehan Shah secured the licensed gun of Haji Mehr father of Warial accused vide memo. Ezh 22/10. According to the licence Warial accused was shown as a retainer for the gun. The gun was made into a parcel and sealed in the presence of the Mashirs, Haji Abdullah and Gul Mohammad. Next day on the 19th of July, 1967 Ghulam Abbas accused appeared before him in Sukkur. On interrogation he led to the recovery of the jeep bearing No. KAE 2227 standing in the street in Warita Road, Sukkur said to belong to Haji Juma Khan accused. He took the jeep into his possession vide memo. Exh. 8/1 prepared in the presence of Jan Mohammad and Mir Mohammad. as the Mashirs. After holding an identification test he arrested Ghulam Abbas, driver. On 23-7-1967 he arrested Haji Jumo accused who appeared at the police station and produced his gun and licence in the presence of the witnesses. On the 17th of July, 1967 Ghulam Mohammad A. S. I. In-charge Police Post Lakhi also came to the spot and the D. S. P. ordered him to .effect the arrest of the accused in the case. He arrested Abdul Hamid Nazo Hashim. Warial and Faiz Muhammad accused from the house of Abdul Hamid in Soomar village but nothing incriminating was secured on their personal search. On interrogation Nazo produced a single barrel shot-gun with his licence and 5 live cartridges from house of Abdul Hamid accused vide memo. Exh. 22/7. Likewise accused Abdul Hamid produced his double barrel .12 bore shot-gun, his licence and 4 live cartridges vide memo. Exh. 22/8. Hashim accused produced one single barrel shot-gun, four cartridges and a licence in the name of his father in which he was shown as a retainer. He made all these into separate sealed parcels. Nothing incriminating was recovered at the instance of Warial and Faiz Mohammad. On the same day be also went to Mungerani village of Behram accused but he wag not available there. In his absence Dilmurad, his brother, produced a double barrel .12 bore shot-gun and the licence in the name of the accused and two live cartridges of .12 bore. The gun appeared to be freshly cleaned. He made these articles into sealed parcels in the presence of Mashirs, Ghulam Mustafa and Amir Bakhsh vide memo. Exh. 9/1. He then produced all these accused and the articles thus secured by him before the S. H. O. Jehan Shah. On the 18th of July 1967, Behram accused was arrested from his village in the presence of the Mashirs Ghulam Mustafa and Amir Bakhsh but nothing incriminating was recovered from his person. The Investigating Officer sent the crime weapons, the six guns. three crime empties and the 12 live cartridges for test to the Fire-Arm Expert for his examination and report. In this connection it may be stated that Shah jehan Khan (P. W. 3) Fire-Arm Expert, examined the three crime empties and compared them with the test empties, by firing the live cartridges from the guns in question. The crime empties were found to match with the guns that were attributed to NaZO, Abdul Hamid and Behram accused. Dr. Khursheed Muhammad (P. W. 18) examined the two injured and also conducted the post-mortem examination on the dead bodies of the three deceased. He found the following injuries on Shahzado appellant: (1) An oval shaped abrasion " x " on the left cheek. (2) A pea-sized abrasion on the left earinna. The two injuries were in a line, simple in nature and appeared to have been caused by fire. arms. Likewise the doctor found the following injuries on Haji Mohammad Ramzan on medical examination: (1) Pea-sized contused wound with no charring on the left temporomendivular joint. (2) Pea-sized slightly bigger than injury No. 1 wound on and below the tragun of the right ear with no charring. According to the doctor the injured was received in a shock and there was bleeding from his mouth and the wounds. His pulse was weak and blood pressure was low. The injured remained as indoor patient for 22 days from 17-7-67. No fracture or bonely deformity was discovered. Post-mortem examination revealed that Saffar deceased had 4 fire-arm injuries, Umar Daraz deceased had 9 fire-arm injuries and Gul Mohammad had 4 fire-arm injuries on their bodies. These injuries, in the opinion of the doctor, were sufficient to cause their deaths. The prosecution produced the ocular evidence of Shahzado. Mantharo Nabi Bakhsh, Mohammad Qdsim and Sanwlo (P. Ws. 6 to 10) to depose to the main incident that took place at the bus-stand on Shikarpur-Sukkur Road. They were sitting at the bus-stand waiting to catch a bus for Sukkur as they all, except deceased Umar Daraz, had to appear in the Court of Mukhtiarkar and F. C. M., Sukkur for hearing in security proceedings under section 107, Cr. P. C. A. green coloured jeep came from the side of Sukkur and passed by them. It stopped at 20-x5 paces away from them and respondents Nos. 2 to 7 armed with guns alighted from the jeep. At the instigation of Abdul Hamid accused, they opened fire on them. The complainant party ran away to save their lives. Saffar, Umar Daraz and Gul Mohammad died at the place of occurrence of the fire-arm injuries sustained by them at the hands of the accused. Shahzado appellant was also injured. He ran towards the machine of Gul Mohammad and Nazo Abdul Hamid chased him firing at him. He managed to take shelter in the premises of the mills. He saw that Ishaq and Haji Ramaan P. Ws were looking through a window of a room of the premises. Haji Ramzan also sustained gunshot injuries as he was watching from the window. He then met Ishaq and Haji Ramzan who told him about the injuries sustained by Ramzan. The ocular evidence substantially supports the prosecution version. In the F. I. R. Shahzado complainant attributed motive to the accused for the triple murder. According to him about two years before this incident Karim Bakhah Mehar, father of Behram accused was murdered and his relations, Gul Mohammad and others, ware tried, convicted and sentenced to death, and their second appeal against it was pending. Also about one year prior to this incident Ghous Bakhah brother of Abdul Majid accused was murdered and his relations, Kadir Bakhsh and two others, were standing trial. It was alleged that to avenge these murders the accused have committed the triple murders in this case before us. Shahzado in his evidence as a witness has testified to this motive. The accused in their examination in Court admitted about the two murders. They, however denied to have any motive to commit these murders in revenge. In this case the admitted position is that all the eye-witnesses are not only interested but also inimical towards the accused. The accused are related inter se and belong to a rival political party. The relationship of the deceased with the prosecution witnesses is also admitted. The Additional Sessions Judge, Sukkur relied on the ocular evidence of Shahzado, Mantbar, Nabi Bakhsh, Mohammad Wasim and Sanwelo P. Ws. Shahzado was himself injured and made the report about this incident. He and the other eye-witnesses deposed to the occurrence and supported the prosecution. Ishaq and Haji Ramzan P. Ws. also corroborated a part of the testimony of Shabzado. Haji Ramzan P. W.. was also injured at the machine premises. The learned Additional Sessions Judge observed that in the instant case all the eye-witnesses were not only interested but were also inimically disposed towards the accused. All the accused were related inter se and belonged to a rival political party. Similarly the prosecution witnesses and the deceased inter se were related. The relationships between the parties were strained. Ghous Bakhsh was the head of a rival political group. He and Gul Mohammad has contested the last B. D. elections against each other. Ghous Baghsh brother of Abdul Hamid accused was murdered and Abdul Hamid was the first informant to lodge the report. Kadir Bakhsh, Hote and Bagh, accused for the murder case of Ghous, were Shahzado's relations. Kadir Bux was also related to deceased Saffar in this case. Karim Bakhsh father of accused Babram was murdered about two years before the present incident and in that case Gul Mohammad and Nabi Bakhsh, his uncles along with three others were accused and were convicted and sentenced to death. In these circumstances the Additional Sessions Judge, followed the prudent rule of criminal law for the safe administration of justice in case of capital charges to the effect that before any reliance can be placed on the evidence of interested and inimical witnesses, the Court must look for the necessary corroboration for recording a conviction. In this connection the learned Additional Sessions Judge observed that P. W. Haji Abdullah is a Mashir of the vardat. He supported the recovery of two empty cartridges from the place of the main incident near the bus-stand and another empty cartridge from the rice plantation on the katdha road near to the machine premises. These recoveries were made into sealed parcel in the presence of the Mashirs and a Masbirnama Exh. 22/1 was also prepared. According to him the statement of the Mashir, Haji Abdullah P. W. about the recovery of the empties and sealing them has gone almost unchallenged. He admitted that Qalandar Bakhsh, the other Mashir is his distant relation. In the opinion of the Court, he appeared to be an honest witness and relied on his testimony in support of those recoveries. The Additional Sessions Judge further observed that Nazo accused produced his .12 bore single barrel gun and the licence from the house of Abdul Hamid. It was secured and sealed in the presence of Mashirs vide Masbirnama Exh. 22/7. Abdul Hamid accused also produced his double barrel .1z bore licensed gun which was secured and sealed on the spot vide Mashirnama Exh. 22/B in the presence of Mashirs. A. S.1. Ghulam Mohammad (P. W.) on the 17th of July, 1967 had gone to village Mungerani in search of Behram accused. But be was not available at his house there. In his absence, Dilmurad his brother produced a double barrel .12 bore shot-gun and the licence for it in the name of the accused. These were secured and sealed vide Mashirnama Exh. 9/1 in the presence of two Mashirs, namely Ghulam Mustafa and Amir Bux P. Ws. In the opinion of the Additional Sessions Judge the assertion of the two witnesses (Haji Abdullah and A. S.

1. Ghulam Mohammad) about the arrest of the accused and the recovery of the guns and the sealing thereof were not challenged in their cross-examination. Nazo and Abdul Hamid accused admitted in their statements under section 342, Cr. P. C. that they had produced their licensed guns and the licences before the police at their asking. In respect of the third licensed gun belonging to Behram accused A. S.1. Ghulam Mohammad and Mashir Ghulam Mustafa P. Ws. stated that at the time of recovery Behram was not at his house in his village. In his absence Dilmurad, his brother, produced the licensed gun of Behram. However the Mashir Ghulam Mustafa deposed that the police did not seal the gun at the time. In his cross-examination he further deposed that the police had fired two cartridges from this gun. But in the opinion of the Court it was rather hard to believe that police would have fired the cartridges in the presence of the Mashirs. The statement of the witnesses was contradictory and it was hard to believe him. Haji Amir Bux the other Mashir had died and his statement recorded in the lower Court was brought on the file under section 33 of the Evidence Act on the application made by the defence counsel. He too had deposed to the recovery of this gun, two live cartridges and one licence and according to him these articles were made into seated parcels. In quest of his search for corroboration the Additional Sessions Judge observed that according to P. W. Shah Johan Khan Fire-Arms Expert he compared the three crime empties with the test empties prepared by him by firing the live cartridges from the guns recovered by the Police, and found that the crime empties had been fired from respective three guns produced by Nazo, Abdul Hamid and Dilmurad belonging to Behram accused. The Additional Sessions Judge relied on the opinion of the Fire-Arms Expert and held that there was this reliable corroboration against the three accused Nazo, Behram and Abdul Hamid through the recoveries of their guns and the association of the crime empties with them. But in the case .of the remaining five accused no corroborative evidence was forthcoming against them. As such their participation was not free from doubt and the possibility that the complainant party implicated them by way of revenge in the triple murder could not be ruled out. In conclusion the learned Additional Sessions Judge convicted Nazo. Abdul Hamid and Behram, respondents Nos. 4, 6 and 7 respectively ,as under: (i) Under section 302/34, P. P. C. for the triple murders of Saar, Umar Daraz and Gal Mohammad deceased and sentenced them each to death. .(ii) Under section 307/34, P. P. C. for attempted murder of Shahzado and sentenced them each to 10 years' R.1. and a fine of Rs. 1,000 or in default to further R. 1. for one year. Abdul Hamid and Nazo were also convicted under section 307/34, P. P. C. for the attempted murder of Haji Mohammad Ramzan and sentenced them each to ,undergo 10 years' R. I. and a fine of Rs. 1,000 or in default to suffer further R. I. for one year. The State appealed against the acquittal of the five co-accused and the ,case also came up for the confirmation of the death sentences against the three convicts. A Division Bench of the High Court of Sind at Baluchistan at Karachi dismissed the State appeal and refused to confirm the death sentences awarded to Nazo, Abdul Hameed and Behram respondents 4, 6 ,and 7 respectively. In coming to this conclusion the High Court on going through the evidence observed that except for Ghulam Abbas the remaining accused were related inter se, Nazo and Faiz Mohammad are brothers while Abdul Hamid and Warial are cousins inter se. Abdul Hamid is the maternal uncle of Nazo and Faiz Mohammad. Behram is the brother-in-law of Abdul Hamid and Hashim closely related to them. Haji Jumo is married to the sister's daughter of Behram s father. Likewise deceased Saffar and Cal Mohammad were brothers inter se while deceased Umar Diraz was the uncle . In soomar village, where the parties resided, there were two political groups, one represented by the complainant side and the other by the appellants and the acquitted accused Karim Bux father of Behram wag murdered and in that case Gul Mohammad, uncle of Shabzado and the head of a political group, Nabi Bux who is also his uncle, Soahoro. Nawab and Mir Mohammad were tried and convicted for that murder. Their appeal in the Supreme Court also failed but the Provincial Government commuted their death sentences to transportation for life. Also a year prior to the present incident, Ghous Bakbsh brother of Abdul Hamid, was murdered. He was the head of the group to which the accused belonged. In the last B. D. elections he was defeated at the hands of Gul Mohammad. For that murder Kadir Bakhsh, Hote and Bagh, relations of Sbabzado, were sent up to face their trial and the case against them was still pending when this incident occurred. This Kadar Bakhah was related to Saffar deceased. The prosecution witnesses, the appellants and the acquitted accused admitted enmity on account of these murders and political rivalry. In these circumstances, the High Court observed that P. Ws. as held by the trial Court are interested witnesses. It was for this reason that the trial Court made the distinction in convicting the three accused and acquitting the rest. In this background the High Court proceeded to dwell upon what according to it, were the suspicious features of this case. In the opinion of the High Court the first suspicious feature of this case is that neither Shahzado nor for the matter of that any other person belonging to his party, made any attempt to lodge a report. about this incident at the Police Station,. Bagerji fur some two hours. It was only Wajid Ali C. W. who happened to pass that way in 'a taxi that be gave a veiled information about the occurrence to the Inspector Headquarters Police Station, Sukkur. According to him he had heard persons at the spot saying that dacoits were committing murders and that he also saw a person lying in a 'Khama' (ditch) about 20 feet deep but he was unable to say whether that person was alive or dead. According to the High Court surprisingly enough, Nazeer Hussain, to whom this information was given, stated that Wajid Ali had told him that "certain persons were lying killed". This information conveyed by Wajid Ali was not recorded and he then left for Ghotki as he was in a hurry to attend the Court. Nazeer Hussain, on the other hand, passed on the information to the S. H. O., Bagerji Police Station which was recorded in the station diary. In that connection the High Court observed Oat this entry spoke about three murders. The High Court posed a query a3 to how was it that from one person about whom it was not known whether he was alive or dead, which was all the information that was thus conveyed, information about indefinite number of persons and that too having been killed, was substituted and conveyed on telephone, to the S. H. O., Bagerji Police Station and again a definite number of those killed, that is three, was shown as the information that was entered in the station diary. The S. H. O. could not have any information about it unless communicated to him by Nazeer Hussain who too must have learnt about it from Wajid Ali. In this connection the High Court adverted to the evidence of Wajid' Ali (C. W.). In his cross-examination the witness admitted that he had' stated before the lower Court that the villagers did tell him that three persons had been killed. He deposed that be might have stated before the Police that those persons told him that three persons of theirs had been killed by the dacoits. They did not give him any names of those dacoits nor did they tell him that they had come in a jeep. In conclusion from the above the High Court observed that it was clear that persons from the complainant side had communicated with Wajid Ali (C. W.) but had refrained from either giving the names of the assailants or those killed and injured and the version of incident. How was it that they had concealed facts and gave the version that dacoits had committed the murders. In the opinion of the High Court this feature cumulatively taken has left room for doubt not only as to the veracity of the version put forward in Court but also as to the participants. The High Court next doubted even the very presence of the P. Ws., the three deceased along with others, in all 17 of them on the 17th of July,. 1967 at the bus-stand at the time of the incident. This according to the High Court was another suspicious feature of the case. According to the prosecution they had assembled there in the morning to catch a bus for Sukkur to attend the hearing in a case under section 107, Cr. P. C. against all of them, excepting Umar Daraz deceased, pending in the Court of Mukhtiarkar and F. C. M., Sukkur. Umar Daraz was not himself a party to those proceedings but was just accompanying them. But in the opinion of the High Court the prosecution failed to establish beyond doubt that any such case against them was fixed for the 17th of July, 1967 in the Court of the Mukhtiarkar and F. C. M., Sukkur. According to the High Court in support of its assertion the prosecution has relied simply on the oral testimony of the interested witnesses, namely Shabzado, Sanwalo, Wasim Nabi Bakhsh and Mantber P. Ws. on whom no reliance could be placed in the absence of any documentary evidence produced on the record. In this connection Bheemandas (P. W. 15) appeared in the witness-box to depose that he was working as a clerk in the Court of Mukhtiarkar and F. C. M,, Sukkur since 1966, that the record of the case entitled "State v. Shahzado" under section 107, Cr. P. C. summoned from him was not traceable and had been destroyed when the building had collapsed due to rain, and that in the absence of the record the proceedings were ultimately dropped. In his cross-examination the witness admitted that he could not say if the 17th of July, 1967 was a date of hearing fixed in the case before the Mukhtiarkar and F. C. N4., Sukkur. The Investigation Officer Jahan Shah, S. H. O. also appeared as a witness to state in that connection that en the 18th of July. 1967 he had sent report (Exh. 24/8) to the Mukhtiarkar and F. C. M.., Sukkur about this incident as proceedings under section 107, Cr. P. C. between the parties were pending in his Court, for cancellation of the surety. But even in this report there was no indication to show that that case was fixed for hearing in Court for 17-7-1967. The High Court, therefore, observed that the prosecution could have obtained and produced documentary evidence to support its version that the P. Ws. along with others were waiting at the bus-stand to catch a bus for Sukkur in order to appear in Court in the security proceedings against them fixed for the 17th of July, 1967. The High Court was not impressed by the observation of the trial Court to the effect that from the trend of the cross-examination of the prosecution witnesses it appeared that their statements on the point in support of the prosecution case that the hearing in the case was in fact fixed for that day, bad gone unchallenged. The High Court therefore, expressed its inability to subscribe to this view formed by the trial Court. In the opinion of the High Court no reliance could be placed on the testimony of these interested witnesses in the absence of the necessary corroboration by the documentary evidence. In the same connection the High Court also noticed what according - to it was another doubtful feature of this case negativing the very presence of these P. Ws. at the place of occurrence. The High Court observed that in the F.

1. R. it is stated that all the assailants bad collectively fired from a "distance of two paces" at the three deceased, the prosecution witnesses and those who had gathered there, in all 17 in number. But in the opinion of the High Court it was difficult and highly improbable to believe that although they were sitting together yet only three persons received fatal injuries and Shahzado escaped with a superficial injury on his person and none else was injured, although attacked by the seven assailants armed with guns from a close range. Moreover if they bad been sitting together at the bus-stand, then their bodies would have been near to each other. Then how is it that the dead body of Gut Mohammad was found on a heap of stones while the dead body of Umar Daraz lay 10 paces away on the Katcha road leading to Soomar village and that of Saffar lay in a Khania 62 paces away from the dead body of Gut Mohammad, especially when according to the medical evidence these deaths were caused instantaneously. In the opinion of the High Court the only possible explanation as to how the body of Saffar lay in a Khama was that he must have s-.en the assailants from a distance and ran to hide himself under the "lai" bushes. As for Umar Daraz he also tried to run but was hit as he had reached the Katcha road. Moreover, according to the F. I. R. the accused had fired from a distance of only two paces but this was belied by the medical evidence which showed that the gunshot injuries on the three deceased were both from a close range as also from a distance. In particular the Court was sceptical about the injuries on Shahzado. They were not explicable on the basis of what is given out in the F. I. R. It was Nazo who had fired his gun at him, yet he sustained merely two abrasions in one line which appeared to have been caused by a pellet. If the testimony of Shahzado is to be believed he should have been hit by a large number of pellets. According to High Court it was idle to speculate as to how he had suffered the superficial injuries found on his person. It was in the evidence of the P. Ws. that about 40-60 shots were fired but that was not consistent with the lesser number of the injuries found on the deceased and Shahzado. Therefore, in the opinion of the High Court, these inherent improbabilities go to belie the version given out by the prosecution in the F. I. R. and at the trial, and that it was doubtful whether such a version could be given by persons who claimed to be the eye-witnesses in this case. The High Court further observed that it was possible on the evidence on the record to sustain that the witnesses had collected at the mill before the arrival of the police and they continued to remain there till their statements were recorded, by the Investigating Officer. There was, therefore, in the opinion of the High Court scope for inferring that they gave their version only after deliberation and consultation. Nonetheless, according to the High Court, the circumstances go to falsify every detail of the account given by the witnesses. Neither the version of the incident nor -the names of the assailants were divulged, at the earliest opportunity on the spot to Wajid Ali (C. W.) who merely gave a veiled information about the incident at the Head-quarter Police Station. This circumstance according to the High Court rendered the presence of the witnesses all the more doubtful. The High Court therefore, declined to accept the testimony of the eye-witnesses for holding the accused guilty on the capital charge. The trial Court while acquitting Ghulam Abbas accused respondent has held that neither the identity of the jeep nor that of its driver was established. This finding was not assailed by the learned counsel for the State before the High Court. In that connection the High Court observed that it was alleged that the assailants had come in the jeep, stopped two paces away and then they alighted from it armed with guns. As such there could not have been any difficulty in identifying the jeep and its driver who were seen by the eye-witnesses from a close distance, but, in the opinion of the High Court, in the circumstances of the case this version of the prosecution was rendered doubtful and it was not possible to say if at all the assailants had come in the jeep and how far they had stopped to make their identification possible. Moreover, according to the High Court nothing was known as to what had happened to this jeep after the assailants had got down from it.. The High Court was also not satisfied with the account of the prosecution concerning the second incident that took place in the mills premises in which Mohammad Ramzan P. W. was injured. In addition to him Ishaq and Shahzado P. Ws. have also deposed to it. In the F. I. R. it was stated that Nazo and Abdul Hamid accused had fired shots at Mohammad Ramzan and Ishaq but in the evidence only Abdul Hamid was singled out a3 having fired the shot at them. Shahzado had not himself seen this firing and his evidence to that effect was based on what Ishaq and Mohammad Ramzan had told him Mohammad Ramzan P. W. in his evidence at the trial admitted that he was not able to see and added that he could see very little with both eyes. He however deposed that at the time of incident his eye-sight was intact, and that he lost it because of the injuries received by him. There was no medical opinion to confirm this loss of the eye-sight because of the injuries. He admitted in his cross examination that except for Nazo and Abdul Hamid no other assailant was known to him. But he even failed to identify Abdul Hamid when he was asked to point out to him present in Court and instead he placed his hand on Fazal Mohammad. In the opinion of the High Court, therefore it was not possible to rely on his testimony. As for Ishaq P. W. he was the mistry working at the mill. He was not injured although according to him he was standing along with Haji Mohammad Ramzan looking out of the window. In the absence of any other circumstances connecting him with the incident, the High Court expressed and entertained doubts about his very presence at the premises at the time. In these circumstances the High Court was not satisfied with the solitary testimony of Mohammad Ramzan P. W. which was doubtful and not convincing. The High Court observed that the trial Court had failed to weigh the improbabilities of the version given by the prosecution witnesses and has instead gone on to hold that the relations between the parties were highly strained due to the political rivalry and previous murders and that the P. Ws. were related inter se with the deceased. Similarly all the accused were related inter se and also to Ghous Bakhsh and Karim Bakhsh who were -earlier murdered. In arriving at this conclusion the trial Court after looking for the necessary corroboration recorded the conviction against respondents Nos. 4. 6 and 7 and acquitted the rest of the accused in the absence of any .satisfactory corroboration to implicate them. But in the opinion of the High Court, after having reached at the conclusion that the eye-witnesses were unreliable, it was not safe for the trial Court to rely on the recoveries to bring home the guilt against the convicted accused. Having reached the conclusion that the ocular evidence was unreliable, the High Court held that the matching of the crime empties with the guns of respondents Nos. 4, 6 and 7 was not sufficient to establish their guilt. Even otherwise in the opinion of the High Court the evidence as to the recoveries, was not convincing. Only three crime empties were left at the vardat although as many as 40-60 cartridges were fired and precaution was taken not to abandon the others. Moreover according to the High Court the two crime empties which were lying two pacts away from the dead body of Gul Mohammad deceased, were reported to have been fired from two different guns. This in the opinion of the High Court was an unlikely feature for no two persons would have fired from different guns from a very close range as only one assailant was enough to do the job. Similarly according to the High Court the recovery of the third crime empty from the transplantation near to the machine was also not free from doubt as assailants would not have discarded a cartridge in that fashion and abandoned it. The High Court observed that Ghulam Mustafa Mashir of the recovery of the gun of Behram accused, admitted that the police had fired two cartridges from the gun in his presence. He also stated that the gun was not sealed. The other Mashir Haji Amir Bakhsh contradicted him on the point but be was declared hostile and the prosecution did not rely on him. Therefore, In the opinion of the High Court from what Ghulam Mustafa had stated the suggestion was that one of the crime empties that matched with the gun of Behram was fired after its recovery. Moreover, the prosecution selected Haji Abdullah to act as a Mashir of recovery of not only the empties but also that of the guns He in the opinion of the High Court was an omnibus witness related to Shahzado being the son of his maternal! uncle. In the absence of any impartial witness available, his evidence as to the recoveries was considerably weakened. The High Court, therefore, held that these recoveries were not free from doubt. In conclusion the High Court gave the benefit of doubt to the three convicted respondents Nos. 4, 6 and 7 as well and acquitted theca. The High Court while accepting their appeal, rejected the one filed by the State against the acquitted accused. It will be seen from the above that the trial Court as well as the High Court unanimously held that the relations between the parties were highly strained due to political rivalries and the enmities between them on account of the two previous murders of Ghous Bakhsh and Karim Bakhsh. The P. Ws. are related inter se and to the deceased. Likewise the accused were related to each other and also to Ghous Bakhsh and Karim Bakhsh who were murdered earlier. In this state of affairs the trial Court did not out rightly reject the testimony of the eye-witnesses merely because they were partisans. In its opinion the direct evidence of eye-witnesses must be considered in the light of the judicially accepted principle of criminal law for the safe dispensation of justice in case of capital charges to the effect that the evidence of the interested and inimical witnesses cannot be relied upon in the absence of trustworthy and independent corroboration of their testimony in material particulars. In that connection the Court found reliable corroboration against Nazo Abdul Hameed and Behram accused in the form of the three crime empties recovered from the place of occurrence which respectively matched with their guns. On this finding therefore, the trial Court convicted there three accused, and acquitted the rest of them in the absence of any corroborative evidence available to connect them with the crime. However, in the opinion of the High Court there were inherent improbabilities pointed out by it, in the statements of the eye-witnesses and therefore, no reliance could be placed on their testimony and the corroboration of their evidence, if any, was not sufficient to record the conviction even against Nazo, Abdul Hameed and Behram, the three convicted accused. The improbabilities on which the High Court relied in finding that the case of the prosecution was doubtful, have already been noticed above. According to the High Court the first suspicious feature of this case is that Shahzado or any other person belonging to his party, did not make any attempt to lodge the report at the police station. It was only one Wajid Ali (C. W.) who happened to pass that way in a taxi, that he laid the information with Nazir Hussain (P. W.) Inspector, Headquarter Police Station. Sukkur. According to him as he was travelling in a taxi, at about 7-20 a. m. he saw 8 or 10 persona standing on the road side at the place of occurrence. The people standing there wire saying that dacoits were committing murders. But he did not himself see any of the dacoits there. He also saw a person lying in a "Khama" (ditch) about 20 feet on the left side of the road while coming from Shikarpur. He could not say whether the man in the ditch was dead or alive or even injured. He explained that he was in a hurry to go to Ghotki where he was posted to, report for duty there and had stayed at the place of occurrence for about 7-8 minutes only. On arrival in Sukkur he stopped just to give the verbal information about what he had heard and seen at the Head-quarter Police Station and then resumed his onward journey for Ghotki. In this connection Nazir Hussain (P. W.) who was then posted as Reserve Inspector, Police Lines, Sukkur admitted that Wajid Ali had met him to lay the information. According to him Wajid Ali had said that "certain persons were lying killed" on the road near Soomor village. He then passed on the information on telephone to Bagerji volice Station concerned. P. W. Jahan Shah, S. H. O., Bagerji Police Station produced a copy of the relevant entry (Exh.24/1) kept in the Roznamcha. According to this entry recorded at 8-30 a. m. on 17-7-1967, at the police station, the Reserve Inspector lead informed him on telephone that three murders had taken place. On receipt of this information, a police party was deputed for going to the place of the wardat for getting the detailed information. In this connection the High Court posed a query as to how was it that from one person, about whom it was not known whether he was alive or dead, which was all the information that was conveyed information about indefinite number of persons and that too having beers killed was substituted and conveyed on telephone to the Police Station, Bagerji and again a definite number of those killed, that is threw, was shown in the information that was then entered in the Roznamcha. But in this connection it may be remembered that Wajid Ali (C. W.) had merely conveyed verbal information about that he saw and heard. In his cross-examination he admitted that he had stated in his lower Court deposition that the villagers did tell him that three persons had been gilled. He farther admitted that he might have stated before the Police that those persons told him that three persons of theirs had been killed by the dacoits. This information given to the witness three persons had been killed was consistent with the proved facts and what was actually entered in the Roznamcha on receipt of the telephonic message at the police station, soon after the occurrence. In these circumstances it seems that this confusion to which the High Court has referred, was introduced by the witness only in his testimony in Court, merely, as an afterthought for reasons best known to him. With due deference I find that the High Court has also drawn an unwarranted conclusion from the statement of Wajid Ali (C. W.) in his cross examination re-produced in its judgment. In his testimony read as whole, the witness deposed that on his way, at the place of incident, at about 7-30 or 7-40 a. m., he saw 8 or 10 persons standing on the road side. The people standing there were saying that the dacoits were committing murders. According to the witness he did not himself see the dacoits and he did not know any of the persons who were present at the spot and were saying that the dacoits were committing the murders. In his cross-examination the witness deposed that apart from 8-10 persons who were saying that dacoits were committing murders there were also passengers of the two taxies which were already standing there. In continuing his narration the witness further deposed in his cross-examination as under ; "I do not remember if those persons told me that the dacoits had killed three persons of theirs. The persons standing there did not tell me that dacoits had also fired in the village. I had stated in my lower Court deposition that villagers did tell me that three persons had been killed. I may have stated before the Police that those persons told me that three persons of theirs have been killed by the dacoits." The underlining is by me. Read as a whole, according to this statement 8-10 persons who were present there at the spot were not known to him. He took them as the villagers who had told him that three persons of theirs had been killed by dacoits. Apart from its admissibility in the evidence, the statement is susceptible of the only interpretation that those villagers had told him that three of their villagers had been killed. At any rate there was no justification for the High Court for drawing the conclusion from this that the "persons from the complainant side had communicated with Wajid Ali" and had concealed the fact from him at the time, for ulterior motives. The conclusion thus drawn by the High Court was fallacious. Moreover this part of the statement by Wajid Ali as to what he had heard from those 8 to 10 unknown persons, who were not examined in Court. amounted to hearsay only, which was not admissible in evidence. In this connection it may be stated that according to the F. I. R. this incident took place at about 7-30 a. m. Wajid Ali (C. W.) deposed to have passed by the place at about 7-30 a. m. to 7-40 a. m. on his way to Sukkur. It means that he must have arrived there soon after the actual firing at the spot. As such the possibility cannot be excluded that at the time the members of the complainant party had all run away from the place for fear of their lives and it was only the accused or their sympathizers who were present there who met Wajid Ali and falsely gave their own direction and currency to the story that the dacoits were committing the murders. This would also account for the fact that before Shahzado or any of members of the complainant party, could sufficiently compose themselves and had time to recover from the shock because of the sudden attack due to which they had to run for safety of their lives, and after they were sure that the danger to them was all over, Wajid Ali (C. W.) who was proceeding by taxi bad lad the information at Head-quarter Police Station at Sukkur and the initial information which was recorded at P. S. Begerji at 8-30 a. m., and the Police actually arrived at vardat soon afterwards. ?he High Court fell into another error in arriving at its finding. According to the High Court the prosecution raise in the F. I. R. was that all the seven assailants armed with guns had collectively fired at the complainant party consisting of seventeen persons from a distance of two paces. In the opinion of the High Court, it was highly improbable that if the assailants had fired from such a close range, only three deceased persons received fatal injuries and Shahzado suffered one superficial injury and all the rest of them escaped unhurt. But in the F. I. R. on the original record, read out to us, ft is stated that the jeep in which the accused had come to the place of incident passed by them and stopped at 20 paces away, not merely 2 paces away wrongly shown in the printed paper book of High Court. The seven accused armed with guns got down from the jeep and immediately afterwards collectively fired at complainant party who were sitting at the Bus Stand. Generally according to the eye-witnesses the jeep had stopped at a distance of 20-25 paces when the accused had fired. It is also not possible to believe that the group of seventeen seeing the danger remained there like sitting duck. On hearing the warning from Abdul Hamid accused they must have run scattered in all directions for the sake of their lives. This misreading by the High Court has adversely affected the judgment of the High Court at more than one places. This also explains for the fact; that the dead bodies of the three deceased were found lying at different places at a distance from each other. In this connection the High Court has also drawn an erroneous conclusion by observing that although according to the post-mortem report the death of the three deceased had occurred instantaneously yet how was it that their dead bodies were found lying at different places. From the above discussion it follows that the High Court was not justified in holding that the prosecution case was improbable in this respect. The High Court has also held that the prosecution has failed to account for the presence of a large number of persons including the deceased, the eye-witnesses and others who were not examined, at the place of incident at about 7-30 a. m. on 17-7-1967. According to the prosecution except for Umer Daraa they had all assembled there at the Bus Stand on the road in order to catch a bus for Sukkur to attend the hearing of the security proceedings pending against them under section 107, Cr. P. C. in the Court of Mukhtiarkar and F. C. M., Sukkur and that U'mar Daraz deceased was accompanying them at the time as their sympathiser. Shahaado, Sanwalo. Qasim, Nabi Bakhsh and Manthar P. Ws. deposed that on 17-7-1967 they had to appear in Court at the hearing in the security proceeding. According to the trial Court the evidence of these witnesses on the point has gone unchallenged and from the trend of their cross-examination it appears that the proceedings under section 107, Cr. P. C. were in fact going on between the parties. In the circumstances of this case the trial Court relied on the testimony of the witnesses in holding that those persons had assembled there to appear at the hearing in the case pending at Sukkur between the parties. But according to the High Court the trial Court was not justified in accepting the ,apse dirt of the witnesses and the prosecution had failed to produce any documentary evidence on the point. In this connection Bheemandas Y. W. who was working in the Court of the Mukhtiarkar and P. C. M.,. Sukkur was examined as a witness by the prosecution. He deposed that the original record of the case Re : State v. Shahzado was not traceable and was destroyed when the Court building collapsed due to rains and oven the security proceedings had to be dropped by the Court in the absence of the records. In his cross-examination the witness was unable to say if the case was fixed for hearing in Court for 17-7-1967. Investigating Officer Jehan Shah, S. H. O. also deposed that on 18th July 1967, he sent a report Copy Exh. 2418) to the Mukhtiarkar and F. C. M., Sukkur as proceedings under section 107, Cr. P. C. between the parties were pending in that Court. But the report does not indicate any date of hearing for which the case was pending. In the opinion of the High Court the prosecution has failed to prove by any documentary evidence that the case was fixed for hearing in Court on 17-7-1967. Of course the prosecution is required to produce the best available evidence in support of its case. But the Court record had been destroyed and the prosecution relied on oral evidence for the purpose. In the copy of the report Exh. 24/8 sent by the Investigating Officer addressed to the Mukhtiarkar at Sukkur on 18-7-1967, immediately after this occurrence, it is stated that a case by Abdul Hameed Aahar .against Allahwasayo and 30 other persons was pending before him under section 107, Cr. P. C. Murders have again taken place between the parties. Abdul Hamid and six other accomplices committed three murders of the opponent-party of Shahzado and others and an F.

1. R. to that effect was lodged on 17-7-1967 at the Police Station. The S. H. O. therefore, requested the Court to cancel the surety of the accused in the case against them. This report coupled with the statements of Beheemandas and the Jehan Shah, S. H. O. leaves no doubt that the security proceedings under .section 107, Cr. P. C. were in fact pending between the parties in the Court .of Mukhtiarkar and F. C. M., Sukkur in those days, but the original record had been destroyed due to rains. That the case was actually fixed for hearing .for 17-7-1967 in Court is proved only from the oral testimony of witnesses. The eye-witnesses deposed that 17-7-1967 was the date of hearing fixed in the case and they had assembled at the Bus Stand waiting for a bus to take them to Sukkur when this incident occurred. As observed by the trial Court these witnesses were not even cross examined and their statements have gone unchallenged on the point. This statement of the trial Court was not even questioned by the High Court in its judgment. In the circumstances of the case and in the absence of any such cross-examination of the witnesses on the point, the trial Court was justified in relying on their testimony to the effect that the case against them way in fact fixed for hearing in Court for 17-7-1967. There is no doubt that the witnesses were interested in the prosecution of the accused and inimical against them. But that fact alone is not sufficient to altogether discard their evidence. It has to be properly sifted and weighed with the necessary care and caution before rejecting the chaff and accepting the grain in the light of the fact of each case. The trial Court had the opportunity to watch the demeanour of witnesses and form first hand impression about their deposition and due importance should be attached to its conclusions drawn from their evidence. In the circumstances the High Court was not justified in insisting upon corroboration of the testimony of the eye-witnesses in each and every detail in this case and thus reject their evidence on the point. I have already held above that the high Court was misled into thinking that the assailants had fired from a close range of two paces only. This circumstance has also adversely affected the judgment of the High Court in discounting the' presence of the group of the complainant party at the place of occurrence. The High Court has further observed that it was in the evidence of the P. Ws. that in all 40 to 60 shots were found but this was not consistent with the lesser number of injuries found on the deceased and Shahzado. This criticism of the evidence by the High Court presumably suffers from the same mistaken assumption that the seven assailants had collectively fired from a distance of two paces only on a group of 17 persons sitting there and .:that it was not possible to believe that they could have escaped with the lesser number of injuries. Moreover, in this connection at the trial the prosecution was able to prove beyond doubt that only three of the convicted assailants were primarily responsible for the injuries and the participation of the acquitted accused was not proved beyond reasonable doubt. There was thus no room for doubt that the prosecution might have possibly Indulged in exaggeration and thrown the noose rather loose in order to also rope in others who were acquitted. Similarly, the fact that three empties recovered by the prosecution were found at the spot does not per se detract from the recoveries and no adverse conclusion could be legitimately drawn from that circumstance alone. Now I should turn to the later part of the incident at the mills premises in which Haji Ramzan P. W. was injured. According to the F. I. R. registered at the instance of Shahzado, Abdul Hameed and Nazo accused had pursued him and had both fired 5 or 6 shots at him, while he took shelter in the premises of the mill. All these shots missed him. But in the evidence only Abdul Hameed was singled out for having fired a shot. Shabzado had not himself seen the firing at him and he was merely told about what Haji Ramzan and Ishaq P. Ws. had told him. Mohammad Ramzan in his evidence admitted that he could see very little from his both eyes. So much so that he was not even able to identify Abdul Hameed accused present in Court and actually placed his hand on a wrong person. His statement that his eye sight was adversely affected as a result of the injury sustained by him in this occurrence, was not corroborated by the medical evidence on the record. The High Court doubted the very presence of Ishaq, the other witness at the mill premises at the time. It was, therefore, not proved to the satisfaction of the High Court that Abdul Hameed and Nazo accused were responsible for the injury found on the person of Haji Ramzan P. W. In this connection there is no corroboration of the oral evidence from any independent source about the participation of Nazo accused in the second incident. According to the evidence the injury found on the parson of Haji Ramzan sustained at the mill premises was directly attributed to Abdul Hameed and not to Nazo accused. Therefore, the conviction of Nazo accused under section 307/34. P. P. C. for attempted murder of Haji Ramzan is not free from reasonable doubt. This part of the case against Abdul Hameed accused will be considered hereafter separately. As already stated above only three crime empties were recovered from the spot, two from the place near to the dead body of Gul Mohammad fired from two different guns and the third one from the plantation to the north of the Kacha road towards the mill premises. Ghulam Mustafa P. W. deposed to the recovery of the li:ensed gun of Behram accused. produced by his brother Dilmurad before Ghulam Muhammad, A. S. L, in the absence of the accused from his house situated in village Mungerani. According to this witness the Police did not seal the gun in his presence at the time and that the police had also fired two cartridges from the gun in his presence. The other attesting witness of the recovery was Haji Amir Bux. He was a nekmard of the village Mungerani. His statement was recorded by the Magistrate during the course of the enquiry and he deposed that the articles then recovered by the police were duly sealed in his presence. The witness was declared hostile at the request of the A. P. P. for the rest of his statement. He had died by the time his statement could be recorded at the trial and his earlier statement was, therefore, brought on the record in accordance with section 33 of the Evidence Act. Ghulam Mohammad A. S. I. deposed to having effected these recoveries. He denied that the licensed gun of Behram accused was not sealed or that after the recovery two shots were fired by the police. He, however, deposed that the gun was seen freshly cleaned. All this considerably weakens the corroborative evidence brought on the record against Behram accused. The gun was actually produced by Dilmurad and not recovered at the instance of the accused himself. From the evidence of the Fire-arm Expert, it wasp shown that the third crime empty recovered from near the premises of the mills had matched with this gun, but that circumstance alone was not sufficient to bring home the guilt to Behram, without any shadow of doubt. He must, therefore, be allowed the benefit of doubt. This circumstance also exculpates Abdul Hameed accused in respect of the injuries sustained by Haji Ramzan as a result of the later part of the incident. Nor is there any corroboration of the eye-witnesses available against him in that connection. The other two crime empties recovered from the place of first incident at the Bus Stand from near the dead body of Gut Mohammad deceased were found to match with the guns admittedly produced by Abdul Hameed and Nazo on 17-7-1967 after their arrests. The recoveries of these two crime empties were witnessed by Haji Abdullah who deposed to them and the Mashirnama prepared in that connection. The trial Court was impressed with his evidence as an honest witness. He admitted that Qalendar Bakhsb,. the other Mashir was a distant relation of his and Shahzado. Investigating Officer Jehan Shah, S. H. O. also supported these recoveries. The High Court criticised the selection of Haji Abdullah to act as a Mashir of the recoveries not only of the crime empties but also of the guns. He in they opinion of the High Court is an omnibus witness related to Shahzado being the son of his maternal uncle, which fact weakens his evidence of recoveries. However the evidence of the witness is further fortified by the evidence of the investigating Officer himself who effected the recovery of the two empties. The High Court does not appear to have even adverted to his evidence at all, on which the trial Court had also relied. In the circumstances the High Court was not justified in lightly reversing the findings of the trial Judge. These proved recoveries of the two crime empties sufficiently corroborate the evidence of the eye-witnesses against Abdul Hameed and Nazo for the triple murder and the injuries to Shahmado. The medical evidence further fortifies us in concluding that the prosecution had succeeded in bringing home the guilt against Abdul Hmmeed and Nazo accused, respondents Nos. 4 and 6 respectively for the triple murder arid injury sustained by Shabzado. According to Halsbury's Laws of England (Third Edition), Volume 15, paras. 811 and 813, in certain cases the Court in practice does not, act upon evidence which is not supported or confirmed in some material respect by other independent evidence, direct or circumstantial but not itself requiring corroboration. According to the learned author there are cases where evidence is of little weight unless it is corroborated. But at the same time when corroboration is required as a matter of practice. the greatest caution must be exercised in coming to a conclusion. Corroboration must proceed from a source independent of and extraneous to the person whose evidence is to be corroborated. It may consist of direct or circumstantial evidence H and it need not amount to confirmation of the whole of the story of the witness to be corroborated. so long as it corroborates such evidence in some respects material to the issue or the charge under consideration. Lord Hewart, C. J., in R. v. Whitehead (1929)1 K B 99 remarked that: "in order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated." In Lim Yom Hong and Co. v. Lam Choon & Co. A I R 1928 P C 127 the Privy Council remarked that it is impossible to treat the statements by a witness as corroborating his own evidence. According to Corpus Juris Secundum, (Volume 32, section 106) corroborative or corroborating evidence has been defined as additional evidence of a different character to the same point ; evidence which would tend to establish the disputed facts by other circumstances is evidence which tends to confirm and strengthen, or to show the truth or probability of truth of the testimony of a witness sought to be corroborated. The extent and degree of corroboration rests in the judicial discretion of the Court and necessarily varies with the facts and circumstance of each case. But the general rule is that the facts proved must b.3 incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. In Ashraf and others v. The Crown P L D 1956 F C 86 this rule of prudence requiring corroboration of partisan evidence was accepted by their Lordships of the Federal Court of Pakistan. In this connection in Niaz v, State P L D 1960 S C 389 the Supreme Court observed that whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication. with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed. and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated, their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may by sufficient as corroboration must depend on the particular circumstance; of each case. However the circumstance itself must be proved beyond all reasonable doubt. Strictly speaking this is a rule of prudence though not of law, for safe dispensation of criminal justice in such cases. The question often arises as to the nature and extent of corroborative evidence required in such cases. In Moor Nabi Aga v. The State P L D 1972 Kar. 292 a Division Bench of the Court observed that one tainted piece of evidence cannot corroborate another tainted piece of evidence. In that case reliance was placed on an earlier case of the High Court of West Pakistan (Karachi Bench) reported as Wazir and others v. The State P L D 1960 Kar.

674. In that case the enmity between the parties was proved and the motive for the conflagration was not satisfactorily established. But the evidence of eyewitnesses or of the approvers, or of the confessing appellants, or that furnished by the recovery of a certain incriminating article was not such as could individually form the basis of a conviction. Each of these pieces required corroboration in material particulars and a question arose as to whether they could be used to corroborate each other. In that case on a review of the case-law a Division Bench of the Court observed:- "We are clearly of the view that we would be departing from the well established rule of prudence if we were to hold that one piece of weak evidence, itself requiring corroboration, can be used as corroboration of another similar piece of weak evidence. It would be highly unsafe, in fact dangerous, to base a conviction on an aggregation of such weak evidence. Applying this standard to the present case, we find that the conviction cannot be sustained against any of the appellants. The eye-witnesses are inimical-, interested and otherwise undependable for the reasons already indicated in body of this judgment. The evidence of the approvers, and the circumstances surrounding the grant of pardon to them, do not inspire confidence and there is in fact a strong probability that their statements are the result of a previous concert. The retracted judicial confessions of the appellants Khairo and Shaman suffer from two infirmities, namely, that they are substantially exculpatory in nature, and secondly, the confessing accused persons were delivered back to police custody after their confessions were recorded. The recoveries of incriminating articles are inconclusive as there has been a considerable delay in sending the weapons of offence and the crime cartridges to the Ballistic Expert for examination, and also because in one case the test applied by the expert was far from reliable. Lastly, we have already stated that even the immediate cause which is alleged to have led to the murders is not satisfactorily established on the record." In a converse case, in Asadullah v. Mohammad Ali and others P L D 1971 S C 541 the Supreme Court held that recovery of the crime empties sufficiently corroborated the ocular evidence in that case six persons were killed by gunshots and Lathis while they were asleep in their house during the fateful night. At the trial amongst others, two of the inmates of the house appeared as eyewitnesses to depose against the accused. Empties recovered from the scene were found by the Ballistic Expert to match with the gun recovered from one of the accused and the rest of the articles including the Dangs and the clothes recovered from the person of the four respondents were on examination by the Chemical Examiner and the Serologist, found to be stained with human blood. The trial Judge relied on the testimony of the two inmates coupled with the incriminating recoveries, and convicted the respondents. But on appeal by the convicts the High Court took the view that the two inmates could not have identified them during the darkness of the night and therefore, excluded their evidence and acquitted the respondents. Leave to appeal was granted by the Supreme Court to the private complainant against the order of acquittal. On going through the facts in that case this Court observed that the judgment and the order of the High Court had resulted in gross miscarriage of justice. In the opinion of this Court the presence of the two inmates of the house, who appeared as the eyewitnesses of the incident, wan not doubted and they had ample opportunity to identify the accused. On a close examination of the ocular evidence furnished by these witnesses and the attending circumstances the Court was left in no doubt that recoveries on which the prosecution relied were genuine, the trial Court relied on them and the High Court did not pass any adverse criticism against the recoveries. As such, according to the Supreme Court, the ocular evidence of the two inmates was fully corroborated by the recoveries on which the prosecution relied. In this state of affairs this Court in accepting the appeal against the order of acquittal of the respondents by the High Court remarked: "The learned Judges further fell in error in isolating the ocular evidence furnished by Mst. Rajan and Mst. Munawar Bibi from the corroborative evidence comprising of the incriminating recoveries to which reference has been made earlier. The learned Judges in the first instance rejected the evidence of Mst. Rajan and Mst. Munawar and then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused persons within the crime "more particularly as the entire ocular evidence had not been believed." The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case. Indeed it would be anomalous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be the basis of conviction. The view formed by the learned Judges that the evidence of recoveries did not connect the accused persons with the crime was, therefore, plainly fallacious." In conclusion I find that the order passed by the High Court in this case in acquitting Nazo and Abdul Hameed, respondents Nos. 4 and 6 respectively has resulted in grave miscarriage of justice. Both of them are held guilty of the triple murders of Gul Muhammad, Safdar and Umar Daraa under section 302/34. The judgment of the High Court qua them is set aside and that of the trial Court is restored and their convictions and sentences to death are affirmed. They are also found guilty for the attempted murder of Shahtado under section 307/34, P. P. C. and I uphold the award of sentence to each of 10 years' R. I. and fine of Re. 1,000 or in default to suffer further rigorous imprisonment for one year each. They are however, acquitted of the charge under section 307/34, P. P. C. for the attempted murder of Haji Muhammad Ramzan P. W. and their conviction and sentences awarded on that count are set aside. The appeal is dismissed as against Behram, and his acquittal by the High Court is maintained. He may be set at liberty at once, if not wanted in any other case. ANWARUL HAQ, J.-I agree. Muhammad GUL, J.-I agree. S. A. H. Order accordingly.