1. CORNELIUS, J.-The appellants are Sardar, Ahmad and Mutalli, sons of Salehon, and two d1stant relations and partisans of theirs, namely; Baqri and his nephew Muhammad Bakhsh, all residents of Miana Gondal in the Gujrat District, and they stand convicted under section 148, and sections 302 and 325 read with section 149, Pakistan Penal Code for the murder of one Muhammad alias Kill among other offences. The circumstances of the murder were somewhat unusual. It took place at a short d1stance outside the town of Malakwal which is some 24 miles d1stant from Miana Gondal.
2. Muhammad Killi may rightly be described as a bad character. Several witnesses for the prosecution who were related to him have admitted that he had escaped conviction in more than one case of murder and that at the time when he was killed, there were at least two cases, viz. For murder and for theft pending against him. It was in connection with the theft case that he had to come to Malakwal on the day in question, to appear before a Magistrate, Mr. Lodhi who was holding Court at the rest-house in that town. The enmity between the parties is traced to the murder of Mirza, a brother of Sardar appellant some three years earlier, for which it is admitted that Muhammad Killi was responsible, but escaped punishment through being acquitted on appeal about a year before he was himself murdered. Some nine years before, he had escaped conviction in a trial for the murder of one Allah Bakhsh; father-in-law of Muhammad Bakhsh accused. There had been security proceedings, and being the man he was, Muhammad Kiln never went abroad unaccompanied. On this occasion, he was accompanied by his nephew Yusuf (P. W. 4), his son-in- law Muhammad son of Gehna (P. W. 5) and a Kameen Muhammad son of Khanu (P. W. 6). They performed the journey on three mares which it is said were left with Mughli (P. W. 7) at his house in village Midh which is about a mile from Malakwal. The proceedings before Mr. Lodhi who gave evidence as P. W. 3 continued till about mid-day. The local thanedar, who was also the investigating officer in this case, Syed Ghulam Murtiza Shah, (P. W. 15) attended the Magistrate's Court till about mid-day when he left for his house. He next went to the Police Station which is some 100 yards away from the rest-house at about 2-30 p. m., and shortly after, Yusuf and Muhammad son of Gehna arrived there, the former in a wounded condition, and a report was made to the effect that Muhammad Killi had been killed by the five accused persons, within the sight of Yusuf who had been attacked and severely injured and within the sight also of Muhammad son of Gehna and Muhammad, son of Khanu who were lagging some 60 karams behind the other at the time of the attack. The assailants had come out from behind the masonry of an abandoned well by the side of the road, and fallen upon Muhammad Killi who was in front. Sardara had a churra, Muttali a spear, and the other three had sofas. These three proceeded to seize Muhammad Killi and lay him on the ground, where he was held by Ahmad by the hair and Baqri and Muhammad Bakhsh by the legs, while Sardara with his churra cut off Muhammad Killi's head starting from the back of his neck.
3. Yusuf, advancing to the aid of his uncle, was given lathi blows by Baqri and Ahmad and a spear blow by Muttali. Having severed Muhammad Killi---s head, and knocked Yusuf down, the assailants escaped. The injuries found bear out the account given by the eye-witnesses very closely. Yusuf had a hole through his upper lip and the weapon also carried away a portion of the left upper incisor tooth. The weapon was obviously a spear, and all the injuries clearly resulted from a single blow. He had also five contused wounds on the head and a contusion over the left forearm where the bone was fractured. These injuries were clearly caused by blows with lathis. As for Muhammad Killi whose head was completely severed from the body, apart from the cuts on the neck and the surrounding areas where the churra was likely to touch the body as the man struggled for life, there were a number of cuts on fingers of his right hand showing an attempt by him to push away the knife with which his head was cut, As there is no doubt that the attack was made in broad daylight, there need not be the slightest difficulty in believing that the severing of Muhammad Killi's head could not have been performed unless he was held down very firmly .And this certainly required the number of persons indicated by the prosecution evidence.
4. The time of the recording of the report is given as 3 p.m., and the distance to the thana is said to be about a mile. Yusuf and his companions have stated that after leaving the Magistrate's Court they sat under a tree smoking for a while, and then proceeded along the road to Midh to recover their mares. The companions of Yusuf stated that immediately after the attack he lost consciousness.
5. After regaining consciousness he lapsed into unconsciousness again several times, and it was only when he finally became fully conscious and capable of movement that he went to the thana taking Muhammad, son of Gehna, while Muhammad son of Khanu remained-- on the spot. It appears that the news of the murder spread very quickly, and a large number of people collected on the spot. The news also reached Mr. Lodhi. He said this was about an hour or so after the departure of Muhammad Killi from his Court, and that "about an hour or so after" he himself went to the spot and found the body of the Muhammad Killi lying there with the head severed, and Yusuf also lying there unconscious and bleeding. Mr. Lodhi said he went to the spot "to record the dying declaration of the injured if that could be possible," Such a proceeding was possible only in the case of Yusuf, but he was unconscious. Mr. Lodhi stayed on the spot for "an hour or so", apparently waiting in case Yusuf should regain consciousness, and then returned to the rest-house. In the Committing Court, he said that he had stayed on the spot for an hour and a half. These periods of time mentioned by Mr. Lodhi are of crucial importance in determining the value of his statement, in relation to the other evidence on the record. If the intervals he gives are accepted as correct, then at 3 p. m. Or even later Yusuf was completely unconscious, and a doubt is thrown over the evidence which he and his companions and the thanedar have given namely that at 3 p. m. He was at the thana, fully conscious, and there made a full report of the occurrence. Mr. Lodhi was candid enough to admit that on the spot he did not choose to enquire as to who were the murderers because that was not his function, nor did any one come forward to .Give' that information to him. His statement as recorded in the Committing Court gave the impression that he had enquired at the spot who the murderers were, but Mr. Lodhi Was clear .That this impression was due to the form in which the question had been put to him, most likely, and that in fact he, never made any enquiry.
6. In this case, we have undertaken a task which is entirely unusual for this Court, namely, to re- examine the, evidence, in order to resolve the conflict which arises from the evidence, given by Mr. Lodhi, when read with the remaining evidence as to the condition of Yusuf at 3 p. m. On the day, in question. The treatment of the matter to the judgment of the High Court was not as clear as it could have been. Indeed, by discarding the evidence of Muhammad, son of Gehna and Muhammad, sots of Khanu, on grounds which we find to be hardly adequate for that purpose, the learned Judges had given a degree of acuteness to the conflict which placed an obligation upon them to resolve it satisfactorily if they were to hold, beyond reasonable doubt, that the appellants before them were guilty of a capital offence.
7. A factor of very great importance in assessing the turth of the prosecution case is that the occurrence undoubtedly took place in broad dayling, and at a place over 20 miles from the village to which the principal actors belonged. A report of the occurrence was undoubtedly made within an hour or two of the occurrence, so that there was clearly no time for procuring witnesses from the village to be named in the report:. The witnesses were examined almost immediately after the report was recorded. Again, in those circumstances, it is inconceivable that the flames of the culprits should be stated in the report at a mere guess, for there would in that case be a very grave risk of one of more of them being able to establish a water-tight alibi. The case in which Muhammad Killi appeared before the Magistrate did not involve the present appellants. It is said to have been a theft case. Therefore, the other possibility is also excluded that the presence of the accused persons at Malakwal may have been known to Yusuf and his companions through their having appeared in the same Court that day. The story that Muhammad Killi never went unaccompanied owing to the ever present danger to his life may be accepted without difficulty having regard to his past record, and there need be no difficulty in believing that his companions were his nephews, Yusuf and Muhammad son of Gehna, and a Kameen Muhammad son of Khanu.
8. These being the probability, the question may well be asked. If at 3 p. m. Yusuf ,was lying unconscious, what reason could there be for the thanedar to make it appear that the report was given by Yusuf and riot by his companion Muhammad son of Gehna. Yusuf was bleeding from five contused wounds on his head and in the absence of a proper medical examination, it was not possible for a layman to be sure that he had not suffered fracture of the skull; and therefore 'night never recover consciousness. The additional danger in recording a statement as from the mouth of Yusuf, supposing he was unconscious, would lie in the possibility that after medical examination, it might appear quite clearly that the injuries were such that after receiving them he could not have spoken at all. In those circumstances, the natural thing would be to record a report by Muhammad son of Gehna, for to record it as from the mouth of Yusuf would lead to needless risk affecting the entire case.
9. These probabilities arise clearly out of the known facts, and in our view they require that any party which contends that Yusuf was unconscious at the time when the report was recorded should carry the burden of proving the fact. Mr. Nazir Ahmad Khan for the appellants relies exclusively on the statement of Mr. Lodhi, and it therefore becomes necessary to examine that witness's statement for credibility. Mr. Lodhi has not chosen to state the exact time when he was on the spot.
10. He has preferred to state the time by dividing into three intervals the period which had elapsed since the conclusion of the hearing in Muhammad Killi's case. An element of inexactness enters into the matter at once. If, through vagueness of recollection, or otherwise, these intervals have been exaggerated in his statement then it might well be that Mr. Lodhi went to the spot much earlier than 3 p. m. That is what is suggested on this question by the rest of the evidence. The thanedar who examined Mr. Lodhi as a witness in the investigation twenty days after the occurrence, i.e. On the 30th November 1957 has stated that up to that time Mr. Lodhi "had not conveyed to me any information that he knew anything about this case". That is certainly extraordinary in a Magistrate, and particularly in an 1llaga Magistrate. Mr. Lodhi stated that his purpose in going to the spot was to record the statement of any injured person, if that were possible, This contrasts with his statement that on the spot he mace no enquiries as to the identity of the culprits, giving the very good reason that that was not his function. If he felt that there was any proper function which he could perform on the spot, it may be predicated without hesitation that the first step he would take would be to send for the thanedar having jurisdiction before proceeding to the spot. The thana was a mere 100 yards away from the rest-house and such a proceeding would have taken no time at all. Mr. Lodhi has stated that he went to the spot with his Prosecuting Inspector, a Police Officer who did not have Jurisdiction in the case. We find. It necessary to say, with regret, that Mr: Lodhi's assertion that he went to the spot to record statements is not credible. Indeed, he said that he had it in mind that he would record the statement of Muhammad Killi. The passage in his evidence reads as follows :- "The information I got was that Muhammad alias Killi had been murdered. I do not. Remember whether 1 was informed that any other person was lying injured at the spot. I stated before the Committing Magistrate that Killi had been killed. I went to the spot'with the idea that Killi might be still ali,vf_--and be able to make some dying declaration."
11. That is a statement which cannot be believed at all, Firstly, if Mr. Lodhi had any such intention, he would necessarily have sent for the thanedar to accompany him to the spot, or at any, rate have made sure that the thanedar was there, and secondly. Having heard that the man had been killed, it is altogether at, exaggeration of behaviour to have acted in the expectation that he might still be alive. These matters are mentioned because they have a bearing upon Mr. Lodhi's further statement than he stayed on the spot for an hour and a half hoping to be able to record a statement by Yusuf. Everything points to his having gone to the spot immediately after hearing of the murder, not is order to exercise any mag1sterial functions, but merely out of interest to take the rare opportunity which presented itself of seeing the scene of afresh crime.
12. The three eye-witnesses all say that many persons came to the spot while they were there, but they did not know whether any of those persons was a Magistrate, and no officer asked any of the persons present to give him information about the occurrence. Some light is thrown upon the matter by the statement of Mughli (P. W. 7) a man who has no axe to grind against the accused persons, that he heard at about peshhvela that Muhammad Killi had been murdered near the boundary of village Midh, and he went there and found only Muhammad son of Khanu present who told him that Yusuf and Muhammad son of Gehna had gone to the Police Station. This witness made some incons1stent statements regarding the return of the mares which had been left behind at his house, from which the impression is gained that he had tried to conceal the mares from the notice of the Police Officers. This may have been done in order to prevent them from being seized and retained at the thane as evidence in the case, to the detriment of the owners, but it affords no reason for doubting his statement as to what he saw on the spot.
13. The theory of the prosecution regarding the visit to the spot of Mr. Lodhi is that he came and left before Yusuf had . Regained consciousness, and in our opinion that theory is cons1stent with Mr. Lodhi's own statement provided only that the intervals of time which he mentioned are not accepted. In our view, Mr. Lodhi's evidence does not have the effect of detracting from the truth of the prosecution evidence that Yusuf made the report at about 3 p. m. It was mainly on the strength of Mr. Lodhi s statement that the learned Judges of the High Court entertained doubts regarding the presence of Muhammad son of Gehna and Muhammad son of Khanu on the spot. In doing so they appear to have misread Mr. Lodhi's evidence as the following passage from their judgment clearly shows:- "We are of the opinion that so tar as the two Muhammads (P. Ws. 5 and 6), are concerned, their presence at' the scene of occurrence has not been satisfactorily established. When Mr. Iqbal Ahmad Lodhi, the Magistrate of the 1llaqn arrived at the scene of occurrence about two hours after the incident he found many people assembled there. He made attempts to find out if any body amongst those present could give him any account of this occurrence, but none came, forward with a word."
14. Pausing there, it is necessary to observe that Mr. Lodhi denied having made any attempt to find out on the spot who were the culprits, because that was not his function. The learned Judges proceeded to say :-- "The only man to whom approach could for that purpose be made was Yusuf (P. W. 4), who was lying unconscious. According to Yusuf's evidence the two Muhammads (P. Ws. 5 and 6), were present there at that time, and if they had in fact been present they would have told the Magistrate that they were witnesses to the crime and would have given to him an account of the incident."
15. Pausing again at this point, if the two Muhammads were at the spot, then it is wrong to say that Yusuf was the only person who could give the Magistrate information about the occurrence. When the Magistrate did not ask for information, and when the witnesses say that they did not know that any Magistrate had come to the spot, it is unfair to conclude that they are falsified on the point of their presence by the fact of their not having spoken up before the Magistrate. The learned Judges then proceed to discount the evidence of the two Muhammadsona further ground which they have stated as follows :- "It is also said that they were following the deceased at a d1stance of about 60 karams. If the deceased was afraid of his enemies and had taken an escort of three persons, Yusuf and two Muhammads (P. Ws. 5 and 7), for protection, sense demanded that the escort should have been by his side and not scattered behind him at long d1stances. If two Muhammads had in fact in attendance upon the deceased for his protection, they would have been as, close to him as Yusuf (P. W. 4). In our view the presence off Muhammad son of Gehna (P. W. 5) and Muhammad son of hanu (P. W. 6) .On the scene of occurrence is not credible.--- Here, it is necessary to state that the Magistrate has given the d1stance of the spot from the test- house as two or three hundred yards. We find no difficulty', in believing that this group of persons while they were still within the sight of the Court-house should have been temporarily cuff their guard, and consequently if Muhammad Killi was left for a short time with only one person to protect him, that was not unnatural in the circumstances. Had their sense of danger been acute these persons would all have been carrying weapons at the time, but the evidence is clearly to the effect that they had no weapons.
16. Something was made in the argument of the allegation that Baqri and Muhammad Bakhsh have grounds for being inimical to the other three appellants. The point might have been of importance had there been any, close relationship of blood between these two persons and Sardara and his brothers, but there is none. The affair having taken place in daylight and believing, as we do, that the three eye-witnesses were actually on the spot we can attach no importance to the circumstance of the suggested enmities. Both sets of accused persons had a strong grudge against Muhammad Killi. The enmities between these two groups were the sole matter mentioned on the factual side by the accused persons in their statements. For the rest, they denied the charge and ascribed the case to the' enmity of the prosecution witnesses. None of them lied any evidence in their defence.
17. Having ourselves analysed the circumstances of the case as well as the evidence led, we find that the prosecution case, as held proved by the Courts below, is in no way affected by the cid cc of the Magistrate, Mr. Lodhi which we have discussed vi en in detail above, and we accordingly dismiss this appeal.