P L D 1977 Supreme Court 462 (PLP)

Walaiti (Bazu) Aslam Mst. Bakhat Ashraf accused Nemat accused Mst. Goharan, sister of Mst. Siftan mother of the deceased was married to Karam Khan, brother of P. W. Misri. On his death she married Khaki Khan another brother of P. W. Misri. The daughter of Mst. Gohran, namely, Mst. Shahjahan is married to Ghulam Muhammad brother of P. W. Mahmood. Mst. Sardar Khanam, sister of P. W. Misri is married to Sher Khan and is mother of Mahmood P. W. Fazal Khan P. W. besides being a cousin of Misri P. W. in the second degree is also the son of his paternal aunt. On the other hand Kala is the son of the sister of Asbraf, and Nemat accused is the son of Ashraf accused. One Basu is a cousin of Ashraf accused. (1) One Karam Khan had filed a complaint of mischief against Miari P. W. and his cousin Hayat etc. Bazu a cousin of Ashraf accused is the brother-in-law of Karam Khan and Misri P. W. was bound down with that Karam Khan. (2) Misri P. W. had filed a complaint under section 447, P. P. C. against Kala and Ashraf accused. (3) A few years back Misri P. W. filed a case under section

307. P. P. C. against Bazu the cousin of Ashraf accused in which Mst. Siftan, the deceased Muhammad Aslam, Sher Khan and Fazal P. W. were the prosecution witnesses. (4) The brother of Misri P. W. on the one hand and Bazu on the other hand were bound down under section 107, Cr. P. C. (5)The share of Walaiti Khan brother of Mst. Siftan inherited by him from his father was mutated under custom on his death in favour of Lis mother Mst. Bhago. Mat Bago gifted her property in the names of her three daughters Mst. Khurshid, Mst. Siftan and Mst. Goharan and this gift wars challenged by Kala and his brother alongwith Sher Khan and it was cancelled. (6) Ashraf accused was charged for murder in which he was acquitted. It was alleged that Sher Khan was a witness against Ashraf in that case. This is denied by Misri P. W. but he has admitted that in that case he was bound down with Bazu a cousin of Ashraf. (7) Ghulam Khan was murdered and Sher Khan who reported the matter charged one Atai for the murder. This report was found false and Sher Khan was convicted for making a false report. One Godar brother of Miskeen agent of Mst. Khurshid P. W. and Mst. Makho wife of Muzaffar maternal uncle of Mst. Siftan and Mst. Khurshid were tried for the said murder. Godar was sentenced to death and executed. (8) Sher Khan had instituted a suit for partition of land against Kala and others. (9) It is in the statement of Mst. Khurshid that at the time of his murder Ghulam was living with the mother of Kala accused and not with MO. Bhago mother of Mst. Siftan and Mst. Khurshid. (10) Khan Muhammad the father-in-law of Hayat brother of Fazal Khan P. W. was murdered and the sister of the said Khan Muhammad charged the three accused for the murder. The case however cancelled and the sister of Khan Muhammad teas proceeded against under section 182 of the Pakistan Penal Code. The above therefore shows that there had been clear regimentation, the deceased and the prosecution witnesses going on one side and the accused on the other and that the relations of the two parties wire very much strained. It was under these circumstances that both the trial Court and the High Court rightly came to the conclusion that it would not be safe to rely on the statements of Mst. Siftan and Mahmood without independent corroboration. Now without discussing the statements of these two prosecution witnesses, namely, Mst. Siftan and Mahmood in the first instance I would like to go into the question whether there was any independent corroboration of their statements on file. So far as the motive is concerned there was apparently no motive for the accused to kill the deceased. The property of Ghulam Khan was inherited by his son Walait Khan to the extent of 1/4th share. On the death of Walait Khan his mother Mst. Bhago inherited this share as limited owner under custom. She gifted this share to her three daughters and this gift was set aside on the suit of Kala etc. In 1962 on the termination of limited estates this 1/4th share went to the Muhammadan Law heirs of Walait Khan and Mst. Khurshid got only 1/3rd of the 2/3rd shire, i e. to say ?/9th share of it. Her share in the property o: her father therefore came to 2/9th of 1/4th 1/8th. Now this Mst Khurshid had two sisters and mother and three consanguine brothers Kala could therefore get 1/3rd of 1/6th share in this 1/18th share in the even of death of Mst Khurshid. This 1/324th share could hardly come to a few kanals for which Kala could not be expected to kill any body. Furthermore by killing the deceased he was certainly to annoy Mst. Khurshid to the extreme and he was not likely to get anything from Mst. Khurshid for she could see that nothing of her property went to Kala. As a matter of face Mst. Khursbid has already started selling the land as is evident from her statement. If Kala was at all to kill any body to get a share in the property of Mst. Khurshrd it should have been Mst. Khurshid and not Muhammad Aslam. Muhammad Aslam bad been adopted by Mst. Khurshid since very long and it is not understood as to by did it dawn on him so late in the day to kill Muhammad Aslam. .As a matter of fact the statement o1 Mst. Khurshid shows that Kala and Shera had been collecting their share, of the produce from the tenants and giving it to them, the three sisters, There was therefore no animosity between the parties on that account Besides it is highly improbable that a maternal uncle who is a Lumbardar and an Ex-B. D. Member alongwith his young son would join hand with his nephew who is also a Lumbardar owning extensive landed property to kill a young boy for a few kanals of land. From the above it is therefore abundantly clear that there was no motive for the murder but on the other hand there could be a motive for false charge because in view of the strained relations between the parties the accused could be charged on suspicion. Now coming to the medical evidence as remarked by the learned Judges of the High Court it did not and could not prove that the injuries if these; were caused with a hatchet and knife had been caused by any particular person. As a matter of fact the statement of the doctor regarding the nature of the injuries does not clearly support the prosecution version because it was 4 hers he was summoned for the second time that he stated that ore of' the ie. juries on the deceased was caused by a sharp-edged weapon, In his statement in the first instance he had stated that all the injures were caused with a sharp-edged weapon and no mention was made of any weapon much less of a pointed weapon. In this connection it would not be out of place to mention that both Kala and Ashraf are Lumbardars and big land owners and that Ashraf was also an Ex-B. D. Member. It has been admitted ,by the prosecution witnesses that both had licences for shot guns and revolvers in their names and ordinarily such like persons would not resort to using hatchets. The only corroborative evidence which could be seriously taken into consideration was the recovery of the weapons at the instance of the two accused, namely, Kala and Nemat and now I proceed to discuss it. The accused were arrested on the 3rd. They remained with the police till the 4th. On the 4th they were remanded to Police custody up to the 6th. During thin period they were interrogated by two Police Officers but no recovery was made. They were again remanded to Police Custody for four days which was to last till the 9th. During this period they were interrogated by Muhammad Ashraf A. S. I. (P. W. 15) and it was only on the last day that is to say the 9th that the recoveries were made. There is no reason why they led to the recoveries on the last day of the remand when they withstood the interrogation for six days, and when they could assume, two of them being Lumbardars, that no further remand to Police Custody would be given. This recovery on the last day of remand speaks for itself. Further. more the A. S. 1. had interrogated them for three days and it is very strange that he could not get two respectable independent persons on the locality to witness the recoveries. Fazal Khan (P. W. 6) besides being a cousin of Misri (P. W.) father of the deceased is also the son of his paternal aunt. and he was a witness along with Misri, Sher Khan and Mst. Siftan in a 307, P. P. C. case against Bazu a cousin of Ashraf accused. His brother Hayat had also been bound down as against the said Bazu. Khan Muhammad the father-in-law of his brother Hayat was murdered and the sister of Khan Muhammad charged the present three accused for the said murder. That case was cancelled and the sister of Khan Muhammad was proceeded against under section 182 of the Pakistan Penal Code. This P. W. Fazal was therefore not only a close relation of the deceased but was on inimical terms with the accused. So far as Aurangzeb (P. W. 7) is concerned he belongs to quite a different village and he has admitted that he was a Basta `B" Badmash having been bound down under section 109 of the Code of Criminal Procedure. There is no doubt that he alleged that it was before Partition, but he has further admitted that he was convicted in 1955 under the Arms Act acid was challaned under section 397/379/458/147 of the Pakistan Penal Code in 1960. He has also admitted that he was challaned under section 307, P. P. C. in 1963. Such like persons are always under the surveillance of the police and are always available to the police for such like recoveries. No reliance could therefore be placed on the statements of these two witnesses as held by the learned Judges in the High Court. When these statements are key out of consideration then it is highly unsafe to rely on the statement of the A. S. I. in the circumstances of the case already mentioned above. It is highly improbable and it does not stand to reason that any body much less a big Zamindar and a Lumbardar like Kala and the son of a big Zamindar, Lambardar and Ex-B. D. Member like Niamat would after committing murder keep blond-stained hatchet and knife used in the murder in the houses to be recovered therefrom. After all what was the difficulty fore them in putting a few drops of water over the weapon to remove the blood stains therefrom. Unless the two were insane which we know they were not they could never have kept blood-stained weapons in their houses. In view of the above I therefore perfectly agree with learned Judges of the High Court that the evidence regarding the recovery of weapons was not free from genuine doubts and could not be relied upon. At any rate in view of the authorities reported in P L D 1975 S C 160 and P L D 1977 S C 4, I am of the opinion that the findings of the High Court in this respect are reasonable and have not been arrived at by disregard of any accepted principles regarding appreciation of evidence. The mere fact that a different, view could be taken of the evidence is not sufficient to overrule the findings of the High Court. So far as the ocular testimony of Mst. Siftan and Mahmood is concerned I am not at all impressed by it and have great doubts about its truthfulness taking into consideration the time of occurrence given by the prosecution in the light of the statement of the doctor, the time of report and Time of the arrival of the police at the spot, but I am not going into the details of these statements as both the trial Court and the High Court have held that the statements of these two prosecution witnesses in the circumstances of the case could not be relied upon without independent corroboration. Since I have come to the conclusion that there was no independent corroboration of their statements I would therefore dismiss the appeal. MUHAMMAD HALEEM, J.-I regret to differ from the judgment proposed to be delivered by my learned brother Qaisar Khan, J. Leave to appeal was granted to examine the reasons given by the learned Judges in the High Court for rejecting the evidence of the recovery of crime weapons in the face of the acceptance of such evidence by the trial Court. Nevertheless the learned counsel for the first two respondents supported the judgment of acquittal substantially for the same reasons which persuaded the learned Judges to acquit them. It will not be necessary to repeat the facts which have been sufficiently stated in the judgment of my learned brother Qaisar Khan, J. I would. however, allude to those which have influenced me to conclude on the merits of the case. Not only the respondents and the acquitted accused Muhammad Ashraf ere related inter se, but they are also closely related to the complainant party. One Ghulam Muhammad Khan, a Lambardar had three wives viz. Mst. Bago, Mst. Akbar Jan and Mst. Bhago. From Mst. Bhago he had a son named Walayat and three daughters, Mst. Khurshid, Mst. Siftan and Mst. Gohar Jan. From Kist. Akbar Jan he had a son named Sher Khan who is the father of Mahmood (P. W. 13), an eye-witness in the case ; from Mst. Bakht he had two sons, Kala Khan and Yakki Khan. The second respondent is the son of the acquitted accused Muhammad Ashraf who is the brother of. Mst. Bakht. Ghulam Muhammad Khan died in 1939 and Walayat died issueless in 1947. Litigation ensued on the death of Walayat Khan. Under the Customary Law the inheritance devolved on his mother Mst. Bhago who gifted the property to her three daughters, Mst. Khurshid, Mst. Siftan and Mst. Gohar Jan in 1951. Sher Khan Muhammad Ashraf as neat friend of Kala Khan and Yakki Khan filed a suit for a declaration that the gift was ineffective qua their reversionary right in the event of death or remarriage of Mst. Bhago which was decreed in 1952. There is also some background of civil and criminal litigation between Sher Khan and the first respondent and also between Sher Khan and the acquitted accused. According to the prosecution case Muhammad Aslam was murdered in broad daylight on a public track which incident was witnessed by his mother Mst. Siftan, Mahmood and one Sardar Bahadur. In the First Information Report it was alleged that Mst. Khurabid, who is the step sister of the first respondent, being unmarried bad brought up the deceased as her own son and as she owned large properties, the first respondent apprehended that he might inherit her property as an heir and, therefore, killed him with the help and assistance of the second respondent and the acquitted accused. I would first deal with the evidence of motive. The prosecution examined Misri Khan and Mst. Khurshid to establish it. In rebuttal the first respondent pleaded that the house in which Mst. Khurshid resided along with the diseased and her mother Mst. Bhago belonged to Ghulam Muhammad Khan and that neither Mst. Khurshid was in exclusive possession of this house nor its owner and, therefore. the first respondent who is a reversioner had nothing to lose even if it was being renovated, for, on the death of Mist. Bhagu he would have inherited a share in the house as an heir of Ghulam Muhammad. As such the motive imputed was denied. The learned trial Court while assessing the evidence held 'that the question which requires determination apparently is not as to whether Mst. Khurshid is owner of the said house or not, but as to whether Mst. Khurshid had brought up the deceased as her own son. and therefore, the first respondent could have apprehended that she 'would give her property' to the deceased and for this reason he had asked her not to get the house rebuilt. The trial Court upon scrutiny of the evidence held that the first. respondent was actuated by the apprehension that he might he deprived of the inheritance for the deceased could 'easily succeed in securing a gift or any other form of transfer in his favour like that Mst. Bhago did in favour of. her daughters'. Consequently, the first respondent felt aggrieved by the house being rebuilt. It, therefore, took motive as a piece of corroboratory evidence against the first respondent. The learned Judges in the High Court did not agree with this finding but held that the evidence in regard to motive is not supported by any independent or disinterested witness. In holding so they did not place reliance on the evidence of Mst. Khurshid as she was regarded as being inimical towards the first respondent. In the alternate the learned Judges held that 'motive like double-edged sword can be used both for the prosecution and the defence' and as such it cannot be used to corroborate the ocular testimony in view of the bitter enmity between the parties. On behalf of the first two respondents it was urged that Mst. Siftan had a motive to falsely implicate them on the basis of her admission that if the first respondent were to die then Sher Khan, herself and her sisters would be his heirs. The learned counsel for the appellant, however, contended that this admission was due to some confusion as the first respondent is married and has children and she could not have been ignorant about it as being a close relative of the first respondent. However, no attempt was made to resolve the confusion. Be that as it may, it appears to be rather far-fetched to assume that an illiterate woman belonging to a rural society would for this object let off the real culprit and instead substitute the first two respondents as the assailants of her son. Accordingly this submission is without substance. It was again pressed into service that the motive attributed by the prosecution could not be a reason to move the first respondent to kill the deceased as he was one of the heirs of Ghulam Muhammad to whom the house belonged and would have inherited a share in it on the demise of Mst. Bago. Examining the evidence on this aspect of the case, I find that Mst. Khurshid is possessed of large properties. She had along with the others, sold 70 kanals of land and had received her share. The fact that she owned property jointly or in her own right has not been denied and to this extent what was alleged as a motive against the first respondent, can hardly be doubted. In their statements both these witnesses have stated that the first respondent had objected to the house being rebuilt. This could not be without a reason, for, it is possible that Mst. Khurshid could have laid a claim for the amount she had spent in getting the house renovated which was not liked by the first respondent. Therefore, it was inconsequential even if she was not the owner of the house. Such allegation could also be the immediate cause for killing the deceased. As held in State v. Rah Nawaz PLD1974SC90, motive is a 'matter of speculation, for it is a fact within the special knowledge of the accused' and 'in criminal cases motive more often'. than not remains shrouded in uncertainty' and 'therefore, the mere fact that the prosecution case as to motive has been disbelieved by the Courts below is no reason for disbelieving direct evidence on the main incident, which has to be judged on its own merits, and if such evidence is creditworthy, it can form a valid basis for conviction, obscurity of motive .notwithstanding. To the same effect are the observations of this Court in Mushtaq Ahmad v. Siddiqullah P L D 1975 S C

160. Judging from this angle the learned Judges in the High Court erred in concluding that the evidence of motive be relied upon. I fail to see how Mst. Khurshid can be said to be inimical towards the first respondent if she had adopted the deceased as her own son, and had a leaning towards Misri Khan. Except for the partition suit which was filed after the incident, nothing was elicited in her evidence to show that she had harboured a grudge against the first respondent. It is also incorrect to assess such evidence on the same principle on which inimical evidence is assessed, for safe dispensation of justice, to exclude any possibility of false implication. This being so, what Misri Khan stated in the F. I. R. and was later brought out in the evidence was on the footing of a speculation which could justly be made from what transpired in the evidence and, therefore. a likely reason to motivate the first respondent to kill the deceased. The High Court failed to consider the evidence of motive from this angle but on a bald consideration of enmity rejected this piece of evidence which I aria inclined to accept. The next piece of evidence to which I would now advert to is the seizure of incriminating articles. The trial Court accepted the evidence furnished on this point by Fazal Khan and Muhammad Ashraf, A. S. 1. commenting on the evidence of Fazal Khan the trial Court held that he was a Lambardar of the village of the first two respondents and that nothing was elicited in his evidence to show that he had any personal enmity against them and, therefore, his evidence could not be rejected merely on the argument that he was procured to give evidence out of enmity. As for Aurangzeb the trial Court held that even if his evidence was ignored because of his bad character, still it was not possible to reject the consistent testimony of Fazal Khan and Muhammad Ashraf, A. S. I. Accordingly the trial Court ruled out the possibility of the weapons having been planted. The trial Court even went so far as to observe that the evidence of A. S. I. alone was sufficient to establish the seizure of incriminating articles in the absence of any foundation in his evidence to show that he was in any manner biased against these respondents. The learned Judges in the High Court held that Fazal Khan was 'clearly a partisan and cannot be treated as an independent or disinterested witness.` In holding so the learned Judges have taken into consideration the relationship of this witness with Misri Khan whose grandfather was the real brother of the grandfather of Fazal Khan and also the fact that in proceedings for 'keeping the peace' instituted by Misri Khan against Walayat alias Bazoo and others, his brother Hayat Khan was bound down under section 107, Cr. P. C. from the side of Misri Khan. This only leads to an inference that his brother had a leaning towards Misri Khan but it was not an admission by him of enmity against the first two respondents who have not been shown to be in any way connected with those proceedings. Hence witness cannot be regarded as a partisan merely because of his relationship with Misri Khan through a common ancestor: Accordingly, I see no element of enmity to doubt his credibility. Therefore, this consideration which persuaded the learned Judges to disbelieve him is artificial. The other two reasons for rejecting the seizure of the incriminating articles, namely' the failure to seize the lock and key and the place from where the articles, were seized being in joint possession, are also devoid of any substance, for, it was not a case of the recovery of the crime weapons as a result of search conducted under section 102 ; Cr. P. C. in which case the element of joint possession has significance Again even if the lock and key were not taken into possession , that would not by itself militate against the seizure of the incriminating articles . I may state here that on this aspect of the case the learned Judges nave on the one hand held that this was, an improvement and on the other an omission of some consequence so, that as it ma',, it is difficult to accept that the crime weapons could have been planted in the house joint ' occupied by others. What is of consideration is the conduct of these respondent in tending to the recovery of the crime weapons in the context of the knowledge they had of the place where the weapons were concealed. Thus for these reasons the learned Judges in the High Court' were wrong in doubting the recovery of the crime weapons. Another factor which persuaded the learned Judges to discredit this piece of evidence was that the prosecution had failed to explain as to why these articles were recovery on the last day of remand, 1 e. 9th November, 1972. Muhammad Ashraf A. S. 1. had stated in cross-examination that he had interrogated the respondents for days and on the last day of the remand then led to the recovery of the articles, Nothing further was suggested in the cross-examination to la ,j a foundation as to the weapons being planted. In its absence even if these respondents had not earlier led to the recovery, it can only be that they were not disposed to produce the crime weapons. What further material could have satisfied the learned Judges, I am unable to comprehend. On this view of the matter it was unreasonable to suspect the bona fides of the recoveries. Again it is not correct to assume as the learned Judges did that Muhammad Ashraf A. S 1. being concerned with the investigation of the case, was an interested witness in the absence of any bias against the respondents. His evidence could not on this basis be treated with suspicion. The trial Court did not place any reliance on the evidence of Aurangzeb and rightly so by way of abundant caution. Even if his evidence is ruled out of consideration, yet there is nothing to doubt the other evidence as to the seizure of the crime weapons. Lastly is the ocular testimony of Mst. Siftan and Mahmood. As to their presence at the slot, the trial Court held that they have given a reasonable explanation for their presence and despite a their lengthy cross examination they have remained consistent in giving out the details of the incident. The demeanour of these two witnesses is thus stated ; "The version given by them also does not suffer from any infirmity. I am, therefore, to hold that it is quite cogent and impressive." Having scrutinized their evidence I am inclined to agree with this opinion. it is difficult to accept that of all persons Mst. Siftan would figure as an eye-witness at an uninhabited place if she had not herself witnesses the incident. However, the trial Court in the background of enmity did not rely on their evidence but rested conviction only after it had found corroboration an against these respondents This was the correct approach having regard to the principle; of safe dispensation of justice. The trial Court, however, did not place reliance on the testimony of Sardar Bahadur and rightly s.;, for his name was not disclosed in the First Information Report and accordingly the trial Court did not evaluate his evidence. The learned Judges in the High Court also did not place reliance one his evidence, for the same reason. As regards the other two witnesses the learned Judges held that there was enmity between the parties on account of Civil and Criminal litigation and, therefore, their evidence could not be accepted without independent corroboration. However, the learned Judges further scrutinized the evidence of Mst. Siftan and held that her assertion that her clothes had become blood-stained and that she had suffered bruises was belied by the Investigating Officer who had not noticed either blood on her clothes or any injury on her person. This was an improvement intended to cover up the motherly conduct which she had failed to demonstrate either by falling on him or intervening otherwise. They also rejected her explanation that as she wanted to cover the deceased by falling on him, she was pushed aside. It is obvious from her testimony that she was 8 to 10 paces behind the deceased in which case it could not have been possible for her to intervene at the time when the blows were being given in quick succession. The so-called improvements were elicited in cross-examination. What Muhammad Ashraf A. S. 1. had stated was that Mst. Siftan had no shown her blood-stained clothes to him. This answer does not show that her clothes were not blood-stained or that she had not suffered bruises. However, the other eye-witness Mahmood has stated that she had not intervened while the blows were being given to the deceased. On this aspect of the case her evidence is not consistent but nothing can turn on it even if it be regarded as an improvement. Again to insist that no independent witness was produced even though the incident occurred at 10 a. m. On a public track is to lose sight of the fact that witnesses hardly come forward to give evidence in a murder case. Even otherwise it is not established on record that the incident was witnessed by any other disinterested person who has been withheld from giving evidence. As such this reason cannot be pressed into service to doubt the prosecution case. Another feature which has weighed with the learned Judges is that in the inquest report the correct time was not mentioned nor any reference was made to a knife injury. Such omission cannot disprove the time at which the first information report was recorded on the nature of the injury sustained by the deceased. The learned Judges have held that 'it is not positively established that the First Information Report was recorded after the inquest report' yet they have entertained an element of doubt and have resolved it in favour of the respondents. This approach was wholly erroneous for it is the benefit of a real doubt which can be given and not a doubt about which the learned Judges themselves were not clear in their minds. From the injuries noticed on the deceased at least one incised wound in the right groin close to the root of penis appears to be on the face of it an injury by a sharp pointed weapon having regard to its dimension viz. 3/4' x 1/8' x 2'. Even if the doctor had not clarified it in his earlier statement that would not be a factor to discredit his testimony. Such injury could not have been caused by a hatchet. There cannot therefore, be a doubt that two kinds of weapons were used which goes to support the prosecution version. Again the learned Judges in the High Court expressed a doubt that it is probable that the deceased might have been murdered early in the morning while it was still dark and no body had witnessed the crime. This conclusion is based not only on the statement of the Doctor that 'it is possible that the deceased may have died at about 6 or 7 a. m. on 2-11-1970 if he was keeping fast,' but also because he had not eased himself. As to why the p deceased was killed about two miles away at au uninhabited spot, while it was still dark cannot be explained on this hypothesis. It could not be that be bad gone there to ease himself. If it was for some other purpose, then that purpose has not been specifically brought on record. The trial Court repelled this contention holding that there was no evidence on record to show that he was fasting that day and that further he state of digestion was not a safe guide in assessing the tune of death. Both these reasons are cogent and I feel no hesitation in holding that the learned Judges had erroneously entertained a doubt as to the time of his death when otherwise the doctor had on the examination of the body held that he died at or about the time stated in the F.

1. R. In this context the learned Judges further erred in giving weight to the evidence of Abdul Jabbar (D. W. 1) and Karamat Hussain (D. W. 2). According to Abdul Jabbar he was 11 or 12 paces away from the place where the dead body lay and busy loading earth on his she-donkey when he was called out by Yaqub to identify a dead body lying on the Katcha track. Having seen it he left to unload his she donkey. It is surprising that being so close to the dead body he failed to notice it. He was confronted with his committal Court statement in which he had not stated that Yaqub had called him to identify the dead body or that Yaqub had identified it in his presence. His statement on the face of it appears to be absurd and is not entitled to any consideration. As for Karamat Hussain he stated that at Campbellpur Misri Khan had come to him and stated that he was not aware as to who were the assailants of his deceased son as he was killed at night. He further suspected Ashraf, Kala Khan and Nemat and requested him to accompany him to S. Mumtaz Ali Khan, Advocate to seek his help in getting the case registered. In cross examination he was confronted with his committal Court deposition in which he had not stated that Misri Khan wanted to implicate Ashraf, Kala Khan and Nemat. He further admitted that he neither informed the Police nor the Advocate that Misri Khan was trying to implicate them. His evidence too does not inspire confidence and appears to be concocted to make out a probable defence. Having lodged the F. I. R. there was no earthly reason v for Misri Khan to go to this witness and express his suspicion and if what he stated was correct. then there was no obvious reason for him to keep silent till such time as his evidence was recorded. The learned Judges have not correctly appraised the evidence of these two witnesses and reached an unreasonable conclusion that the defence case was probable as to the time at which. the deceased was killed and hence it was an un- witnessed crime. Having scrutinized the evidence I am of the opinion that the conclusion of acquittal is based on an unreasonable appreciation of evidence for doubts have been entertained when none existed and the evidence has been stained to an extent that unreasonable inferences have been drawn therefrom which has resulted in miscarraige of justice. Accordingly, I would set aside the judgment of the High Court and restore that of the trial Court and allow the appeal, and confirm the sentence of death awarded to Kala Khan. ANWARUL HAQ, J.-After having perused the judgment proposed to be delivered in this case by my learned brother Qaisar Khan, J., and the dissenting opinion recorded by my learned brother Muhammad Haleem, J., I find myself in respectful agreement with the views expressed by the letter. Both my learned brothers have concurred with the view expressed by the learned Judges in the High Court that in view of the background of considerable civil and criminal litigation between the parties, it would not be safe to rely on the ocular evidence of the mother of the deceased Muhammad Aslam, namely, Mst. Siftan (P. W. 12). and her nephew Mahmood (P. W. 13) without satisfactory corroboration, Qaisar Khan, J., has, however, taken the view that the recoveries of the incriminating weapons have not been proved satisfactorily on the record by independent evidence, nor has the motive been brought home for the reason that the deceased was not likely to inherit any considerable property from her unmarried aunt Mst. Khurahid, whereas the respondent Kola Khan is a man of considerable landed property besides being a Lambardar. Muhammad Haleem. J., has taken a contrary view on both these points. I shall first take up the question of motive. The property, which has formed the bore of contention between the parties, was owned by Ghulam Muhammad Khan, father of respondent Kala Khan. This gentleman had three wives, and children from all of them. It is true that on a strict calculation the share of Mst. Khurshid Begun, a step-sister of respondent Kala Khan, who had adopted the deceased as her own son, would not appear to amount to a considerable area of agricultural land, yet it is common ground between the parties that the previous litigation bad arisen owing to the fact that the step mother of this respondent had gifted a large area of agricultural land in favour of her three daughters including Me. Khurshid Begum, who had remained unmarried. Sometime before the present occurrence Mst. Khurshid Begum had started renovating the house in which she and her mother Mst. Bago were living, and this renovation was being supervised by the deceased as the adopted son of his Khala, Mst. Khurshid. Right from the beginning it is the case of the prosecution that respondent Kala Khan bad objected to this renovation, but Mst. Khurahid had, nevertheless, gone ahead with her plans. On the termination of the limited interest of Mst. Bago, the house would undoubtedly revert to all the heirs of Mst. Bago's husand Ghulam Muhammad, yet any alteration in the ,meantime in the character of the property was not to the liking of Kala Khan. The part played by the deceased in carrying out this renovation, and the possibility of his securing the property by way of a gift from his aunt Mst. Khurshid may not ostensibly appear to be of such a compelling nature as to provide motivation for the murder of the deceased, yet, in the background. of the hostility that had been created between the step children of Ghulam Muhammad Khan over the devolution of his property, these circumstances must have caused considerable annoyance to Kola Khan. The statements made in this regard by Mst. Kburshid and Mst. Siftan, the step sisters of respondent Kala Khan, appear to be reasonably convincing and probable. I am, therefore, of the view that the learned trial Judge was right in thinking that the real question in the case was not whether Mst. Khurshid Begum owned the house which was being renovated under the supervision of the deceased, or whether she was in fact to inherit a large area of agricultural property which she could possibly have gifted to the deceased, but it was whether the circumstance were such as to inimically dispose the respondents towards him. In the peculiar facts and circumstances of the case, I find that such a motive did exist. The learned Judges in the High Court were seriously in error in ignoring the evidence of both the step sisters of Kala Khan. I find that the story narrated by Mst. Siftan and her nephew Mahmood as to the nature of the injuries caused by the respondents to the deceased stands corroborated by the medical evidence. Although initially Dr. Ataur Rehman, who bad performed the autopsy on the dead body of the deceased, had not indicated as to which of the incised injuries found on the body had been caused by a hatchet and which one by a knife, yet this could be easily ascertained by a reference to the description of the injuries themselves, Muhammad Haleem, J has rightly pointed out that injury No. 5, namely, an incised wound 3/4"x1/8" x 2.' on the right groin close to the root of the penis, was a knife injury . Even in the first information report it bad been asserted that while respondent kala Khan & and his co-accused Muhammad Ashraf had used hatchets the respondent Nemat Khan had caused a knife injury to the deceased. To this extent, therefore, the medical evidence supports the ocular testimony and provides useful corroboration thereof. As to the time of the assault and consequent death of the deceased, the Doctor had mentioned in the post-mortem report that the time between death and post-mortem examination was about twenty-four hours. The autopsy having been performed at 9 a.m. on the 3rd of November 1972, the time of death would appear to be about 9 a.m. on the previous day, which fits in with the ocular testimony. The learned Judges in the High Court, however, chose to take note of the statement made by the medical witness in cross-examination that in view of the presence of faecal matter in the small and large intestines of the deceased, it could be said that he may have died at about 6 or 7 a. m. on the previous day if be was keeping a fast. Now, it is well established that the timings indicated by the medical witnesses are not precise assessments, and cannot be used to contradict satisfactory ocular evidence and the other attendant circumstances of the crime. In the present case, the body of the deceased was found at a distance of about two miles from his own house, and near the Mazar which, according to the prosecution, he had gone to visit in company of his mother and cousin. There is evidently no explanation, nor even an indication, as to why and how the body should be found at that particular place, unless we accept the story narrated by Mst. Siftan, namely, that she had gone to the Mazar along with her son and nephew in the early hours of that morning in the month of Ramzan. It seems to me, therefore, that the learned Judges in the High Court attached an altogether exaggerated importance to a mere expression of opinion by the medical witness in disregard of the other proved circumstances of the case. Coming now to the main item of corroboration relied upon by the prosecution, the question is whether the recovery of the bloodstained hatchet at the instance of Kala Khan, and of the blood-stained knife at the instance of Nemat Khan has been proved on the record beyond any reasonable doubt. The recoveries were mode on the 9th of November 1972 as a result of interrogation by A. S.

1. Muhammad Ashraf (P. W. 15) and they were witnessed by lambardar Fazal Khan (P. W. 6) and Aurangzeb (P. W. 7). The evidence of Aurangzeb has been rejected by the Courts below on the ground that be was shown to be a man of infamous character having been involved in several criminal cases. However, the trial Court placed reliance on the evidence of Fazal Khan and the Investigating Officer. The first criticism against the recoveries is that they are highly suspicious for the reason that they were made on &e last day when the remand of the accused persons was to expire. I have carefully perused the statement of A. S.I. Muhammad Ashraf, and I confess that I have not bran able to discover any reason to doubt the genuineness of the recoveries simply on the ground that they were made on the last day of the expiry of the period of remand. It appears that the accused persons were interrogated in the first instance by some other Police Officers, who did not succeed in persuading them to disclose the whereabouts of the incriminating weapons. Y he matter was then taken in hand by A. S. I. Muhammad Ashraf, and as a result of his interrogation the respondents Kala Khan and Nemat Khan led to the recovery of their respective weapons. There is nothing unusual or unnatural in one investigating Officer succeeding where others had previously failed in eliciting the necessary information from the accused persons. In the cross-examination of A. S. I. Muhammad Ashraf nothing was brought out to show that he had acted dishonestly or unusually in relation to these recoveries. The learned Judges in the High Court clearly misdirected themselves in taking the view that the Investigating Officer was an interested witness. Such a sweeping condemnation can only be justified if there is any material on the record in support thereof, but there is none in the present case. It is not shown at all that the Investigating Officer had any ulterior motive or interest in the case, apart from his professional and official duty to perform. In such a case, as observed by this Court in Muhammad Khan etc. v. Dost Muhammad P L D 1975 S C 607 the evidence of a Police Officer alone can be accepted. However, even the testimony of Fazal Khan cannot be brushed aside, simply for the reason that he is a cousin of Misri Khan, the father of the deceased, and his brother Muhammad Hayat bad been siding with Misri Khan in certain disputes. It is to be remembered that the contending parties are closely related to each other, the murdered young man being a son of a step-sister of respondent Kala Khan. In these circumstances, the mere fact of relationship with one side or the other cannot be the determining factor, and it must be ascertained whether the witness concerned had in fact aligned himself so closely with one party so as to be inimical and interested against the other. In the case of Fazal Khan, there is not evidence to show that he had been involved In the feud which was going on between the step children of Ghulam Muhammad Khan. As he was the Lambardar of the; village from which the recoveries were made, there was nothing suspicious in the Investigating Officer calling upon him to witness the same. On this, view of the matter, I am inclined to agree with the trial Court as well as ~ my learned brother Muhammad Haleem, J., that the evidence of Fazal Khan as to the genuineness of the recoveries could be safely relied upon. I As a result, I have come to the conclusion that the ocular testimony of Mst. Siftan and her nephew Mahmood stands satisfactorily corroborated by the evidence of motive, the medical evidence as well as the recovery of the weapons of offence at the instance of the respondents. The learned Judges in the High Court have rejected these corroborative pieces of evidence on grounds which cannot be sustained on the record, and this rejection has led to a grave miscarriage of justice. I would accordingly accept this appeal, set aside the judgment of the High Court and restore the convictions and sentences recorded against the respondents by the trial Court, and confirm the sentence of death awarded to Kala Khan. ORDER OF THE COURT According to the view of the majority, this appeal is accepted, the judgment of the High Court is set abide and the convictions and sentences recorded against respondents Nos. 1 and 2, Kala Khan and Nemat Khah, by the trial Court are restored. The sentence of death awarded to Kala Khan is confirmed. S. A. H. Appeal accepted.