1. DORAB PATEL, J.-Fazal, the father of Muhammad Sadiq was shot dead in village Usman Khatar in Rawalpindi District on the night of the 27th July, 1972 and Mohammad Sadiq was also injured in the occurrence. The respondent Mohammad Sarwar and Fateh Mohammad who were cousins were tried under sections 302 and 307 read with. Section 34, P. P. C. For this occurrence in the Sessions Court, Rawalpindi, and by his judgment dated 29-5-1974, the learned Sessions Judge convicted both the accused under sections 302 and 307 read with section 34, P. P. C. And sentenced them to death. Fines were also imposed, half of which were. To be paid to the heirs of the deceased and to Mohammad Sadiq.
2. The accused challenged their conviction in an appeal in the Lahore High Court which was heard by a Division Bench of the High Court with the reference under section 374 of the Criminal Procedure Code. By their judgment dated 5-3-1975, the learned Judges of the Lahore High Court dismissed Mohammad Sarwar's appeal against his conviction for the murder but allowed his appeal against his conviction for injuring Mohammad Sadiq, therefore, they set aside the conviction under section 307/34, P. P. C. But upheld his conviction for murder. However, as the learned Judges were of the opinion that even according to the prosecution, there were mitigating circumstances in favour of Mohammad Sarwar, they rejected the reference, reduced the sentence to imprisonment for life and also reduced the fine imposed upon Mohammad Sarwar. Next, as to Fateh Mohammad, the learned Judges of the High Court allowed the appeal of this respondent against his conviction for murder but as they were of the view that he had injured Mohammad Sadiq by firing at him with a gun, they altered his conviction to section 326, P. P. C., reduced the sentence against him to the sentence already undergone and also reduced the fine imposed on him to the nominal amount of Rs. 100.
3. Mohammad Sadiq was aggrieved by the acquittal of Fateh Mohammad to the charge of murder and by the alteration of his conviction to section 326, P. P. C. And he was also aggrieved by the acquittal of Mohammad Sarwar on the charge of firing at him and by the refusal of the High Court to confirm the sentence of death against him, therefore, he filed this petition for leave in this Court against the judgment of the Lahore High Court and leave was granted to examine his contentions.
4. Neither Fateh Mohammad nor Mohammad Sarwar who were the first two respondents in this appeal had challenged their conviction even though Mohammad Sarwar bad not served the sentence of imprisonment passed against him. However, during the course of arguments before us, he filed a time-barred petition for leave against his conviction and I will by this judgment dispose of Mohammad Sadiq's appeal as well as Mohammad Sarwar's petition for leave.
5. The motive for the crime, according to Mohammad Sadiq was that his mother Mst. Bagh Jan had deserted his father 12 years before the occurrence and had married Mohammad Sarwar. However, Mst. Bagh Jan had deserted Mohammad Sarwar about two months before the occurrence and according to Mohammad Sadiq, as Mohammad Sarwar had suspected that he and his father were responsible for his wife's deserting him, he had taken his revenge by attempting their assassination.
6. Turning now to the occurrence, according to the F. I. R. Mohammad Sadiq and his father had taken the above fellow at about 7-30 p.m. On 27-7-72 to a pond for giving him water and as they were returning home, the respondents Mohammad Sarwar and Fatah Mohammad suddenly appeared armed with guns and Mohammad Sarwar raised a !Althea and fired at Fazal. Fazal was hit on the chest and fell down. Then the other respondent Fateh Mohammad fired at, Mohammad Sadiq who was also hit in the chest. Next, Mohammad Sarwar fired a second shot at Fazal which hit him on his chest. The other respondent Fateh Mohammad then fired again at Mohammad Sadiq and he was hit on his chest and left side. Finally, after firing more shots, the appellants ran away. Meanwhile, on the lalkara raised by Mohammad Sadiq, three persons Mohammad Hussain , Fazal Elahi and Mohammad Iqbal had arrived and witnessed the occurrence. Leaving the dead body of his father under the care of one Ghulam Haider, Mohammad Sadiq went to lodge the F. I. R. At Sangjani Police Station. The F. I. R. Was recorded at 10-30 p.m. By Mohammad Nazir who thereafter forwarded a copy to the Police Post Taxila, presumably because the F. I. R. Should have been lodged at the Police Post. Mohammad Ashraf, A. S. I., who was on duty at Taxila Police Post proceeded to the spot, commenced investigations and it is relevant to observe here that five empties were secured. The respondents were arrested in due course and the police recovered Mohammad Sarwar's licensed gun from him on his arrest. The empties and this gun were for--warded to the Ballistic Expert and the Ballistic Expert's report was that the empties had been fired from this gun.
7. The respondents were, therefore, tried for the murder and for firing at Mohammad Sadiq in the Sessions Court and in support of its case, the prosecution examined Mohammad Sadiq, Fazal Elaht and Mohammad Hussain as eye-witnesses of the occurrence. Mohammad Iqbal who was also an eye-witness was, however, dropped. The prosecution also examined the Ballistic Expert and other officers who had conducted the investigations. Dr. Khalid Javed who had carried out the post- mortem of the deceased and Dr. Muhammad Akram Tariq who had examined Mohammad Sadiq shortly after the midnight of 27-7-1972 at the District Headquarters Hospital, Rawalpindi, were also examined.
8. Both the respondents denied the allegations against them and in this connection it is necessary to point out that Mohammad Sarwar denied the allegation that his wife had deserted him and that he had, therefore, suspected the deceased "of having a hand in her disappearance". On the contrary, he was emphatic that she "was living with him when the alleged occurrence took place". He, however, admitted the recovery of gun but pointed out that it was his licensed gun and his further plea in this connection was that in fact the police had recovered it from his house with live cartridges on the morning after the occurrence. He did not examine any witnesses in his defence nor the other respondent who had denied all the allegations of the prosecution. However, although the respondents did not examine witnesses they produced no documentary evidence to prove that Mohammad Sadiq had the other enemies in the village and that he was not on good terms with members of his own family. Further, in view of the arguments advanced before us, it would be convenient to point out here that the accused cross-examined deceased Mohammad Sadiq on the suggestion that he and his father had other enemies, and Mohammad Sadiq was compelled to admit that he had been tried for the murder of one Aslam and acquitted. Similarly, Mohammad Hussain admitted, but only in cross-examination, that he had disputes with his sisters, including Mst. Bagh Jan, on the question of succession to their father's landed property. Next, Mohammad Sadiq was cross-examined on the basis of the circumstantial evidence, that he was not with his father at the time of the occurrence and that he had been fired at separately. Finally, as the three eye-witnesses, including Mohammad Sadiq, claimed to have seen and identified the accused, they were cross-examined on the suggestion that the occurrence had taken place in the dark and, therefore, they had falsely claimed to have seen and identified the assailants.
9. I would now briefly examine -the evidence of three eye-witnesses, but would first make a few observations on the question of the motive for the crime. The prosecution case was that Mst. Bagh Jan had deserted her husband, the accused Mohammad Sarwar, a couple of months before the occurrence and this accused had suspected that his wife had deserted him at the instance of Mohammad Sadiq and his father. Although Mohammad Sarwar had not admitted, in the committal Court, that his wife had deserted him, the prosecution relied, in support of this plea of desertation, only on the evidence of the three eye-witnesses, yet the learned Sessions Judge took the view that their evidence of motive furnished corroboration of the ocular evidence. I have, therefore, to observe here that the view of the Sessions Court was totally erroneous. As I will presently show the evidence of the eye-witness is not fit to be accepted without corroboration, therefore, the evidence of these very eye--witnesses about the motive for the offence cannot possibly furnish any corroboration of the description of the occurrence. It is true that Mohammad Hussain was the brother of Mg. Bagh' Jan and one would normally rely on the evidence of a brother about his sister. But apart from his money disputes with Mst. Bagh Jan, although the witness stated that his sister had left her husband, he said in cross-examination "I cannot say as to why Mst. Bagh Jan left the house of Mohammad Sarwar accused. I also do, not know as to where she remained after coming from the house of Sarwar accused". I find it impossible to believe that if his sister had really deserted Mohammad Sarwar accused, the witness would not have known where his sister was living after she had deserted her husband. It is, therefore, not surprising that when pressed further about the whereabouts of his sister, the witness had to admit: "it was rumoured in the village that Mst. Bagh Jan had left the house of Mohammad Sarwar accused. I do not re-collect if Ihad gone to the house of Sarwar accused to find out if she was there or not or had actually deserted him". Such evidence cannot inspire confidence, and I am astonished that the Sessions Court accepted such evidence about the motive for the offence. It is true that the High Court has not at all relied on the evidence of motive, there--fore, the submission of Mr. Iqbal and Mr. M. A. Wahid was that this was fatal to the prosecution case. I cannot agree with this submission either. The fact that the prosecution has failed to prove the motive of the crime is only a circumstance which reacts against its case, and as prosecution put forward, in the instant case, a motive for the crime which It totally failed to prove, it would only mean that the ocular evidence required to be scrutinised with great caution. And I venture to' think that the High Court too might have taken different view of the ocular evidence if its attention had been drawn to this aspect of the case.
10. I now turn to the description of the occurrence by the witnesses. They all said in the Sessions Court that it had taken place before sunset and that as Mohammad Sadiq and his father were returning with their buffalo from the village pond, the two accused suddenly appeared, armed with guns, from a garden and fired at Mohammad Sadiq and his father. As Mohammad Sadiq claimed to have been walking with his father when the assilants. Suddenly appeared, he has given a more detailed version of the occurrence and stated that the first shots were fired by the two accused from a distance of a few feet, that Mohammad Sarwar had then advanced towards his father and fired "from a distance of about 6 inches". Next, as to the shots fired at him, the witness said: . . . . .
11. "My wounds bled profusely before I ran towards the hotel of Haider and blood fell in little quantity on the way also. It is incorrect to suggest that I was not injured where may father was injured, but I received the injuries near the hotel of Haider whereas my father was injured where his dead body was found lying and that the occurrence took place in the dark hours of night. I had stated before the Committing Magistrate that after receiving the injuries, I ran and fell down near the hotel of Haider. (Confronted, not so recorded in Exh. P. A.) It is incorrect to suggest that we have made the two separate occurrences into one, so that my evidence may be given due weight being an injured witness------------The deceased had fallen injured within my sight and was still breathing when Iran away from the spot. I had asked Haider Zaman to guard the dead body of my father before starting for the P. S. I. Had stated so before the police as well as before the Committing Magistrate.
12. The witness was asked to clarify as to why this inconsistency appeared in his statement that in the above statement he stated that he left his father in an injured condition, whereas in the F. I. R. It was recorded that he had succumbed to the injuries and he left for the P. S. Leaving Ghulam Haider near the dead body but he has not been able to advance any satisfactory explanation . . . ."
13. Fazal Elahi and Mohammad Hussain supported, in broad outlines, Mohammad Sadiq's description of the occurrence, and Mohammad Hussain claimed to have seen it from a distance of 20-25 yards whilst Fazal Elahi stated that he had seen the occurrence from a distance of about 80-90 paces.
14. A casual perusal of the evidence would suggest that it was riddled by absurdities, therefore, I am surprised that both the Courts were impressed by it, and as far as I can see, they were impressed by it because the accused had failed to prove their allegation that the eye-witnesses were hostile to them. Now, there can be no dispute about the proposition that as a rule of prudence, the evidence of a hostile witness in a criminal case requires corroboration, but the primary question in a case is not whether the witness is a hostile witness or a disinterested witness, but whether he is an hones witness or a dishonest witness. Sometimes, even a hostile witness may speak the truth, whilst a totally disinterested witness may be bribed or pressurised into giving false evidence, therefore, if I may be permitted to say so, the test of enmity is a rule of thumb method for ascertaining the veracity of a witness, and the question will always be of the veracity of the witness, and therefore, in addition to the question whether a witness is interested or hostile or disinterested, the Courts should also examine the question whether the evidence is inherently probable and whether it is consistent with the circumstantial evidence.
15. Unfortunately, however, the Sessions Court only examined the question whether the evidence of the three eye-witnesses was consistent, and as it held that the discrepancies in their evidence were not material, it did not examine the circumstantial evidence and the evidence of the other witnesses examined by the prosecution. This was unfortunate, and I would now examine the discrepancies between the ocular evidence and the other evidence.
16. The learned counsel for the accused submitted that there was a material discrepancy between the F. I. R. And the evidence of the witnesses about the time at which the occurrence had taken place.
17. According to the F. I. R. Mohammad Sadiq and his father had taken their buffalo for a drink to the village pond at about 7-30 p.m., and as the witness said that it had taken them more than ten minutes to reach the pond and as the occurrence took place as they were returning from the pond, it is obvious that according to the F. I. R. The occurrence took place at about 8 p.m. 8 p.m. Would be about an hour after sun set, it would be impossible for any person to see and identify other people at a distance of 80-90 paces, but that was Fazal Elahi's claim and because identification would be impossible from that distance, he and Mohammad Sadiq as well as Mohammad Hussain said that the occurrence had taken place before sun set. Mohammad Sadiq was, therefore, cross-examined on his F. I. R. Statement, but as he could not give any explanation of the discrepancy about the time of the occurrence as stated in the F. I. R. And as contended by him in the Sessions Court, I am satisfied that he and the other two witnesses deliberately committed perjury about the time of the occurrence but unfortunately this material discrepancy in the prosecution case escaped the attention of both the Courts.
18. However, according to the learned counsel the occurrence had taken place even after 8 p.m.
19. Perhaps at 8-30 or 9 p.m. When it was pitch dark so that no one could have seen the assailants, not even Mohammad Sadiq. In support of this submission, the learned counsel pointed out that Sangjani Police Station where the F. I. R. Was recorded was only about eight miles from the place of occurrence, therefore, as the F. I. R. Had been recorded at 10-15 p.m. There was gross delay in recording it, and this meant that the occurrence had taken place long after 8 p.m. The first limb of the submission that the police station was eight miles from the place of occurrence is correct and is supported by the evidence of the Police Officers. Next, as according to the Foot Constable Mohammad Sadiq, Mohammad Sadiq the eye-witness had gone by a station wagon to Sangjani Police Station, the submission was that it could not possibly have taken two hours to reach the police station in a station wagon but the Sessions Court was not impressed by this plea and observed. "The P. Ws. Carried Mohammad Sadiq P. W. To Police Station Sangjani in a tonga". Now as submitted by the learned counsel, this observation is based on a misreading of evidence because all that Mohammad Sadiq the eye-witness said was that he had been carried from the place of occurrence to Tonga Stand in the village and not that he had gone to the police station by a tonga.
20. Obviously, then the witness did not need two hours to reach the police station if he was able to obtain a station wagon promptly. But as there is no evidence to show how long the witness had to wait for the station wagon, it is not possible to accept the submission of the learned counsel that there was no proper explanation of the time taken by Mohammad Sadiq the eye-witness in reaching the police station.
21. The learned counsel then submitted that the conduct of Mohammad Sadiq, the eye-witness, in lodging the F. I. R. At the Police Station Sangjani invited suspicion, because the police station was 8 miles from the place of occurrence whilst the Police Post, Taxila, which was on the way to Sangjani Police Station was only three miles from place of occurrence. Further, according to the evidence of the police officers, even the report lodged by Mohammad Sadiq at Sangjani Police Station had been forwarded to the Taxila Police Post, and Mohammad Ashraf, the A. S. I. Incharge of that Post had, on receiving the F. I. R., immediately proceeded to the place of occurrence to commence investigations. This evidence would suggest that the F. I. R. Should have been lodged at Taxila. On being cross-examined on this aspect of the case, Mohammad Sadiq said that the F. I. R. Was lodged at Sangjani Police Station because there was a hospital in Sangjani. But according to the evidence of police officers, there was also a hospital at Taxila, therefore, the witness has failed to explain why he deliberately went to report the occurrence at a police station which was much farther away from the place of occurrence than the Police Post at which the F. I. R. Should have been lodged, and as I will presently show the recovery of 'Mohammad Sarwar's gun at Sangjani police station invites the utmost suspicion.
22. Mohammad Sadiq said in his evidence that the two accused had given a lalkara from a distance of 4 or 5 yards and then opened fire. It is clear from the medical evidence as well as the ocular evidence that the deceased had been fired at almost point blank range and as it was the prosecution case that Mohammad Sadiq was at that time walking "shoulder to shoulder" with his father, it is obvious that the assailant had fired at him from a distance of two yards or at the most three yards. Further, the claim of Mohammad Sadiq, which is fully supported by the medical evidence, was that both the shots had hit him in the chest. As the weapon alleged to have been used by the assailant was a double-barrelled gun, it . Is obvious that if the occurrence had taken place in the manner claimed by Mohammad Sadiq and the other so-called eye-witnesses, the injuries to Mohammad Sadiq would have been extremely serious, if not fatal. Therefore, the idea that he could have run 200 paces, raising a hue and cry, to the hotel of Haider is absurd and cannot be believed. How then did Mohammad Sadiq receive his injuries? The Sessions Court did not examine this aspect of the case whilst, as I pointed out, the learned Judges were of the view that the witness had managed to run 200 paces after he had been hit. It is obvious that Mohammad Sadiq could have run in the manner claimed by him only if the injuries to him had been very minor, which would mean that the shots had been fired from a considerable distance.
23. And this is proved beyond all doubt by Dr. Mohammad Akram Tariq's evidence. This witness described the injuries to Mohammad Sadiq as follows:-
(I) Seven punctured wounds on the left side of chest a little above and to the left of nipple.
(2) Nine punctured wounds with lacerated edges and blackened on the left side of upper chest, just above and to the right of left nipple.
24. The injuries to the witness were so trivial that he was not admitted into hospital even for the night, but as the trivial nature of these injuries cannot be reconciled with the witness's claim that Mohammad Sarwar had fired at him from a distance, of two or three yards, we invited Mr: Zafar Mahmood to assist us on this aspect of the case. Learned counsel submitted that on the basis of a passage in Modi's Medical Jurisprudence that the accused must have fired at Mohammad Sadiq from a distance of 30 feet, and even the learned Assistant Advocate-General submitted that the distance between the assailant and Mohammad Sadiq could not have been less than 30 feet. On the other hand, the learned counsel for the accused submitted that the injuries to the witness were so trivial that the distance between him and the assailant must have been more than 30 yards.
25. Estimates of this nature are very approximate as they turn on imponderable and neither party has led any evidence in the trial Court in support of the plea now advanced by it, therefore, I would only observe that it is overwhelmingly clear from the medical evidence to the injuries to Mohammad Sadiq that the shot which hit him had been fired from an ineffective distance. This necessarily means that the witnesses who claim to have been walking shoulder to shoulder with his father at the time of the occurrence were absolutely false. Similarly this also means that both Fazal Elahi and Mohammad Hussain had deliberately given false evidence that they had seen Mohammad Sadiq walking with his father at, the time of the occurrence.
26. There is yet another circumstance, not decisive by itself, which casts doubt on the ocular evidence and which escaped the attention of both the Courts. Mohammad Sadiq's explanation of being with his father at the time of the occurrence was that they had taken their buffalo to the village pond for a drink. The other two eye-witnesses also claimed to have seen the father and the son with their buffalo. As both father and son were alleged to have been injured by a succession of shots fired almost simultaneously from guns, the learned counsel for the accused submitted that if Mohammad Sadiq and his father had really had their buffalo with them, the buffalo would not have escaped unhurt. But Mohammad Sadiq's explanation in his cross-examination was that the buffalo had run for safety when the accused gave his lalkara. Presumably, the lalkara of the accused had sounded like a clap of thunder, so that this lucky buffalo ran for safety. To say the least, the prosecution evidence borders on the ridiculous, and here the evidence of Abdullah Khan, the Patwari, is very relevant. This witness said in his cross-examination that there was a watercourse "which ran throughout the year and which runs through the courtyard of the cattle shed of the deceased". As the water--course ran through their cattle shed, the story of Mohammad Sadiq that he and his father had taken their buffalo for a drink at the village pond is patently false, and was invented in order to support his false claim that he was with his father at the time of the murder of his father.
27. Additionally, as both the other two eye-witnesses have supported Mohammad Sadiq's claim of being with the lucky buffalo at the time of the alleged occurrence, it is clear that both these witnesses deliberately committed perjury, therefore, nothing turns on the fact that the accused failed to prove that these witnesses were hostile to them, because at the risk of being tedious, I would repeat that the question always is of the veracity of a witness, and as like Fazal Elahi, Mohammad Hussain has also deliberately given false evidence about the occurrence, with respect, the learned Judges of the High Court erred in relying on his evidence merely because the accused failed to prove that the witness was hostile to them.
28. Mr. Zafar Mahmood then submitted that the ocular evidence was corroborated by the evidence of the recoveries. But no recoveries were made at the instance of Fateh Mohammad. The prosecution, however, claims that the other accused Mohammad Sarwar had produced his licensed gun when he surrendered to the police and as the empties recovered from the place of occurrence (which was near where the deceased had fallen) matched with this gun, Mr. War Mahmood submitted that this furnished strong corroboration at least of the case against Mohammad Sarwar. But both the accused are alleged to have fired, more or less, the same number of shots, so to say the least, the fact that all the empties matched with Mohammad Sarwar's gun, which was the only gun recovered, invites suspicion, and the plea of this accused was that the police had raided his house on the morning after the occurrence and taken away his licensed gun. It is true that Mohammad Ishaq, the Head Constable of Police Station, Sangjani, has denied this allegation, but his performance in cross---examination is one of the strangest I have come across. The following passage in the witness's cross-examination speaks for itself:.-.
29. "It is incorrect to suggest that the gun in question was recovered from the house of Sarwar accused on the day of occurrence, and not on 12th August 1972 as stated by me. It is correct that the recovery memo. Exh. P. J. Does not bear the attestation of any public witness. Volunteered, because none was present in the P. S. At that time. The S. I. Did not call any public man to attest the recovery memo."
30. As the recovery of the gun was made in brazen disregard of the mandatory provisions of the law, the recovery is of no evidentiary value whatsoever, therefore, it is not necessary to examine the other infirmities about this recovery on which the learned counsel for the accused relied and it is sufficient to observe that far from supporting the ocular evidence, this strange recovery cast doubt on the prosecution case, because to say the least, the investigation was conducted in a most deplorable manner. I am, therefore, surprised that both the Courts were impressed by this recovery, but it is apparent that they had failed to notice the startling admission made by Mohammad Ishaq in his cross-examination.
31. Mr. Zafar Mahmood naturally stressed the fact that there was a concurrent finding of guilt against the accused, but as I have shown, both the Courts have misread the circumstantial evidence and ignored the evidence which was fatal to the veracity of the so-called eye-witnesses, and this means that the concurrent finding of the two Courts was reached without taking into consideration all the circumstances which affected the credibility of the eye-witnesses. But as observed by Hamoodur Rahman, C. J., in Noora and another v. The State (PLD 1973 SC 469), at p. 296 whilst allowing Noora's appeal "this was clearly a departure from the cardinal principle that not only evidence going in favour of the prosecution should be taken into consideration but also that which went in favour of the accused." Therefore, the conviction of the accused has led to a miscarriage of justice.
32. I pointed out earlier that Mohammad Sarwar had filed a grossly time---barred petition for leave, therefore, we had given notice to the learned Assistant Advocate-General on this and the other questions raised in the appeal, and the learned Assistant Advocate-General referred us to this Court's judgment in Sadiq v. The State (PLD 1967 SC 356). The facts in this case were that whilst hearing arguments in an appeal, the Court was of the view that the accused should have filed an appeal, therefore, it directed the jail authorities to instruct the accused to file a jail petition. The facts in this case are much stronger in Mohammad Sarwar's favour, because be has filed his petition for leave before the conclusion of arguments before us. It is true that the petition is time- barred, but as rightly submitted by Mr. Riaz, this Court generally condones delay in criminal cases, therefore, we condone the delay, the more so, as we are satisfied, Mohammad Sarwar's conviction was illegal.