1. ' DORAB PATEL, J.-The six appellants were tried with six other accused by an Additional Sessions Judge, Jacobabad, for the murder of Mir Muhammad, Sanwalo, Bhagio and Ghous Bux, and for causing injuries to :ten other persons including six eye-witnesses. And, by his judgment dated .31- 3-1975, the learned Additional Sessions Judge convicted all the accused, including the appellants, under section 302/149, 324/149, 326/149 and 148, P. P. C. And sentenced all of them to transportation for life on the first count, to one year's R. I. On the second count, to three years' R. I. On the third count and to one year's R. I., on the last count. Fines were also imposed, and three of the appellants were also sentenced to one year's R. I. Under section 13-D of the Arms Act. All the accused filed an appeal against their conviction in the Sind & Baluchistan High Court, and this appeal was heard by a Division Bench of the Sind High Court. By their Judgment, dated 11-3-1978, the learned Judges of the Sind High Court dismissed the appeals of the appellants, but allowed the appeals of The six other accused, therefore, the appellants filed a petition for leave in this Court. Leave was granted and we have now heard the appeal with the assistance of Mr. Junejo, who appeared on behalf of the appellants and the learned Advocate-General assisted by the Assistant Advocate-General of Punjab, who appeared on behalf of the State.
2. ' According to the prosecution, the occurrence took place in village Shah Bakhsh Talani in deli Jacobabad and this village is about two furlongs from Jacobabad city. As to the motive for, the occurrence it was stated in the F. I. R. Lodged by Abdullah that he had met the party of the appellants in Jacobabad in the morning on 2-7-1971, and the appellants had complained that they (the party of Abdullah) had complained to their Nekmard that the appellants had stolen cattle, therefore, the appellants had threatened to take revenge. Further, according to the F. I. R., all the accused including the appellants came to the village of the complainant, the same evening at 6.00 p. m., and after giving the usual lalkara : "Daulat fired a shot which hit Mir Muhammad. Loung fired a gunshot which hit Sanwalo, Shafi Jatoi fired a gunshot which hit Bhagio as a result of which they fell down. Thereafter lathi-fighting took place and they gave lathi blows to all the witnesses Chhutto, Nabo and Muhammad Hassan son of Dado received gunshots as a result of which they fell down. Thereafter Shah Bux Talani arrived there. He requested them in the name of Holy Qur'an. Thereafter accused persons went away towards their village. During the quarrel accused persons have also received blows."
3. ' After recording the F. I. R., the Police commenced investigations and for the purpose of this appeal it is sufficient to state that three empties were recovered from the vardat and the first two appellants produced after their arrest the guns which they were supposed to have used in the occurrence. We may however, explain that the other appellants were alleged to have been armed with lathis, whilst the acquitted accused were also alleged to have been armed with lathis and guns. And the medical evidence corroborates the prosecution case that the deceased and the other witnesses had been attacked by fire-arms and lathis, but it is relevant to point out that the party of the appellants had also received very serious injuries. One Jummo succumbed to the injuries inflicted on him by the party of the complainant, whilst the third, fourth and fifth appellants also received injuries. The third appellant had received, according to the medical evidence, three blows from a blunt weapon, whilst the fourth appellant had five injuries of which one was grievous and another was an incised wound. Finally, the fifth appellant had received eight injuries including one fire-arm injury, Therefore, it is not surprising that the fifth appellant also had lodged a counter F. I. R, And the claim of the appellants in this counter F. I. R. Was that the appellants were cultivating the land of one Mir Muhammad Baluch and that as the cattle of the party of the complainant had trespassed on this cultivated land and damaged it, they were taking the cattle to the local pond.
4. Meanwhile the party of the complainant including the deceased and' prosecution witnesses arrived armed with lathis and guns and two of the prosecution witnesses (Nuruddin and Chhoto) fired at them (the appellants) whilst others members of the party of the complainant attacked them with hatchets and lathis. This report was lodged about half an hour after the report lodged by Abdullah and as Jummo had not yet succumbed to his injuries, the report was under sections 307/147, 148/149, and section 24, P. P. C. Finally, in order to appreciate the peculiar view taken by the Courts below, we have to point out that investigations were commenced on the report thus filed by the fifth appellant and the learned Advocate-General very fairly conceded that the investigations proved that the land of Mir Muhammad Baluch showed signs of damage by the trampling of cattle and there was even blood on these fields. Similarly the evidence of Dr. Moolchand proves beyond all doubt that the party of the complainant had also attacked the party of the accused with hatchets, lathis and at least one gun. Therefore, it is obvious that the occurrence had not taken place in the manner described by the six eyewitnessses and that there was a clash between the party of the accused and the party of the complainant.
5. ' Reverting however to the prosecution case in order to prove the occurrence, the prosecution examined Abdullah, Chhoto, Nuruddin, Arbab, Naseer and Ilahi Bakhsh as eye-witnesses of the occurrence, Ilahi Bakhsh is the son of Sanwalo, deceased, whilst the other five witnesses are sons of Mauj Ali, and whilst all the six witnesses had supported the prosecution case in the committal Court, except Abdullah, all the other eye-witnesses were declared hostile in the Sessions Court and their lower Court statements were brought on the record. However, it is necessary to emphasize here that all the six eyewitnesses denied that they had inflicted any injuries whatever on the party of the accused and all of them said that they were unarmed at the time of the occurrence.
6. Reverting, however, to the evidence examined by the prosecution, the prosecution examined the Police Officer, who carried out the investigations and the Mashers of the recoveries, because two guns were produced at the instance of the first two appellants and the three empties recovered from the vardat matched with the gun produced by the first appellant. Finally, it is sufficient to observe here that the prosecution also relied on the evidence of Dr. Moolchand, who had carried out the post-mortem ,of all the dead, and had also examined the persons injured on both sides.
7. ' Turning now to the case of the accused, all of them said that they had been falsely implicated on account of enmity. But the three appellants, who were injured in the occurrence admitted their presence and said that they and Jummo had been attacked by the party of the accused in their fields and that. Jummo had been killed in this attack. They, therefore, relied on Dr. Moolchand's evidence which proved Jummo's death and the injuries inflicted on them and they also produced evidence to show that the fields of Mir Muhammad Baluch had been damaged as claimed by them in their counter F.
1. R. But they did not produce any evidence to show that they had been cultivating these fields at the time of the occurrence. , All the other accused denied their presence at the occurrence.
8. ' The learned Additional Sessions Judge examined the evidence of Abdullah, who had lodged the F.
9. I. R. In the case under appeal and observed that Abdullah had no motive to- "falsely implicate any of the accused persons in this offence, nor any such question has been put to this witness in his cross-examination from the accused side. Nothing worthwhile could be elicited from him in his cross-examination."
10. ' Then after explaining why he had brought the lower Court statements of the other five eye- witnesses on the record under section 288 of the Criminal Procedure Code, the learned Additional Sessions Judge observed: "these witnesses have no previous enmity with the accused party, nor any motive to falsely implicate any of the accused. In these circumstances, I find that lower Court depositions of these witnesses ... Can be relied upon and their testimony in the lower Court coupled with the testimony of complainant Abdullah is sufficient for holding that fight took place between both the parties and that all the above accused participated in that fight and they caused injuries to the above witnesses and four deceased persons."
11. ' Now, according to Abdullah's evidence and the lower Court statements of the other five eye- witnesses, the occurrence had taken place only, in survey No, 164 near their houses, and although according to the learned Additional Sessions Judge, this ocular evidence was reliable, he rejected as false the evidence of these witnesses that the occurrence had taken place only near their houses in Survey No,
164. This was because he was impressed by the evidence of . Damage in the fields of Mir Muhammad Baluch and by Dr: Moolchand's evidence of the many injuries inflicted on the party of the accused. Similarly, although he showered eulogies on the witness Abdullah, he rejected his evidence about the motive for the occurrence and held that the occurrence had begun in the manner stated in the counter F. I. R. Lodged by the accused, and that because the accused had been attacked by the party of the complainant, they had, after collecting their followers, and arming themselves with guns and hatchets, gone to the village of the complainant and attacked them in Survey No,
164. As the learned Additional Sessions Judge thus rejected the ocular evidence on particulars crucial to the, prosecution case, we are unable to understand how he was so highly impressed by the ocular evidence, the more so, as five out of the six witnesses had repudiated their lower Court statements. But having thus squared the circle, in his own mind, he convicted all the accused on the basis of this ocular evidence and sentenced them as pointed out by us earlier.
12. ' In these circumstances, it is not surprising that the appellants challenged their conviction in an appeal in the High Court, and the appeal was pressed on two principal grounds. 'the first was that in the circumstances of the case, the lower Court had erred in relying on the lower Court statements of the five eye-witnesses, who had repudiated those statements in the Sessions Court, and the learned Judges have referred to this submission in their judgment and to the case-law cited by the learned counsel for the appellants. But after referring to this submission, they have held, without giving any reasons, that the view taken by the trial Court was correct. The second main ground, on which the appeal was pressed, was that the eye-witnesses were obviously not witnesses of truth because the Sessions Court had rejected as false the evidence of the eye- witnesses about the origin of the occurrence, and also the statements of all the six eye witnesses that neither they nor their party had inflicted any injuries whatsoever on the party of the accused, therefore, the submission was that the ocular evidence was not fit to be accepted without corroboration, but there was no such corroboration: The learned Judges repelled this submission with the observation that:-- "All the prosecution witnesses appeared to be related inter se. Since the witnesses were injured, their presence at the place of occurrence cannot be doubted. They were present in their houses, where they were expected to be and they were natural witnesses. They had no motive to falsely implicate the appellants, leaving out the real culprits. We, therefore, see no reason to doubt their veracity."
13. ' However, as in the next paragraph of their judgment, they held that the Sessions Court had erred in rejecting the evidence of the recovery of the first appellant's guns, it may be that the learned Judges of the High Court were of the view that the evidence of this recovery corroborated the ocular evidence. In any event, having held for whatever reasons, that the evidence of the eye- witnesses was reliable, the learned Judges acquitted six out of the twelve accused, although they had been fully implicated by all the eyewitnesses. And as the six appellants were not so lucky as their six co-accused, they have come in appeal in this Court.
14. ' As the Sessions Court was of the view that the first incident had taken place in the fields of Mir Muhammad Baluch which the accused were cultivating, Mr. Junejo submitted that there was no evidence in support of the finding of the Sessions Court that there were two separate incidents and therefore, learned counsel's submission was that there was only one occurrence, and that was that the party of Abdullah had come and attacked the party of the accused and got the worst of it. Now, the attention of the learned Judges of the High Court was also drawn .To this hypothesis of two separate incidents, but they merely observed that "it is possible that the first incident may have taken place as is stated by Darya Khan (the fifth appellant)". This more careful approach on the part of the High Court was correct, because although there was evidence to show that there was damage by cattle in the fields of Mir Muhammad Baluch, there was absolutely no evidence to show that the accused were cultivating the fields .Of Mir Muhammad Baluch,- and so we are unable to accept the hypothesis of two separate incidents, but this does not help the case of the appellants, because even Mr. Junejo did not attempt to argue That the evidence of the Investigation Officer and of the Mashirs of the vardat was not sufficient to establish that there had been a fight, almost a pitched-battle, near the houses of the party of the complainant in Survey No, 164, as claimed by the prosecution. Therefore, we are satisfied that the occurrence took place in Survey No, 164, but it is also clear that the occurrence did not take place in the manner claimed by Abdullah and the other eye-witnesses. Abdullah, as well as the other eye-witnesses emphatically denied having caused any injuries whatever to the party of the appellants and what is worse for the prosecution, all the witnesses emphatically stated that there was no question of inflicting injuries on the party of the appellant, because they were all unarmed. But, the medical evidence proves beyond all doubt that the party of the complainant had killed Jummo and inflicted injuries on the party of the appellants with hatchets and it is also clear tint some one from the party of the complainant had fired a shot or shots which had hit the fifth appellant. In these circumstances, the only possible inference from the circumstantial evidence is that there was a sudden fight between the parties, therefore, neither the location of the vardat nor the medical evidence are of any corroborative value, because they cannot throw any light on the question as to how this fight between two groups of heavily armed men began and with these observations, we now turn to the ocular evidence, because the prosecution case rests solely on the evidence of eye-witnesses.
15. ' Both the Courts have been impressed by the evidence of Abdullah, who lodged the F. I. R., and as the Sessions Court went to the length of saying that there were no discrepancies in this witness's evidence, Mr. Junejo submitted that the findings of the Sessions Court were inconsistent. The submission is correct, because the Sessions Court rejected as false Abdullah's evidence both about the motive and about the origin of the occurrence and similarly as it also rejected Abdullah's evidence that his party had not inflicted any injuries on the party of the accused, we are unable to understand how the . Sessions Court was impressed by the evidence of this witness. However, as the findings of the Sessions Court are not sacrosanct, we have examined the evidence in support of these findings and we have no hesitation in agreeing with the view of the Sessions Court that Abdullah gave false evidence about the motive for the occurrence and this is a circumstance which cannot, but react against his veracity. Next, as to the absence of discrepancies in the witness's own evidence, as rightly submitted by Mr. Junejo, the witness had stated in the F. I. R. That the first appellant had shot and killed Mir Muhammad, whilst the second appellant had shot and killed Sanwalo. But, in his evidence the witness stated that the second appellant had killed both Mir Muhammad and Sanwalo. And the witness did not in his evidence attribute any specific shot to the first appellant, Daulat. But, contrary to the position taken by him in the F. I. R. And in his evidence in the Sessions Court, Abdullah had said in the lower Court "each of the accused fired 3-4 shots". Now; according to this witness, three of the accused were armed with guns, but as only three empties were recovered from the vardat, in order to bring his evidence into line with his recoveries, he repudiated his lower Court statement in his evidence in the Sessions Court. Again, he stated in his examination-in-chief that only twelve or thirteen persons had come and attacked them, but he also stated that some of the assailants had muffled their faces. But, as the witness had named thirteen assailants in his F. I. R., this means that in addition to these thirteen persons there were other assailants, who had muffled their faces, therefore, the witness said in his cross-examination that about thirty persons had attacked them and for reasons which will presently become apparent, this discrepancy is not so immaterial. Finally, whilst, the witness was emphatic that the assailants who were armed with guns had fired at their victims from distance of ten to twelve paces, 'Dr. Mool Chand said in his evidence that three out of four persons hit by fire-arms, namely, Chhoto, Sanwalo and Ghagio had wounds showed signs of charring. It is obvious that these three persons had been hit by shots fired from few feet, and not from a distance of ten or twelve paces.
16. This is important because the trial Cdurt was impressed by Abdullah's detailed description of the occurrence, but if Abdullah could not give a correct description of a material particular of the occurrence, namely, the fire-arms injuries, would it be safe to rely on his description of the occurrence? Additionally, whilst the witness professed to be exact about the injuries inflicted on other members of his party, he could not say how he had been injured and he had also received grievous injuries. In this connection, he said in his cross-examination "I cannot say, who gave me lathi and hatchet injuries. After receiving lathi and hatchet injuries, I was in my senses and I was also able to walk". As the witness was not able to identify his own assailants, was he really able .To identify the assailants of the other members of his party? And if this witness, who impressed both the Courts as much was not able to identify the Persons, who had attacked him from close quarters, were the Courts justified in rejecting the evidence of some of the other witnesses in the Sessions Court on the ground that these other witnesses had not in their evidence in the Sessions Court identified all the assailants? We will presently revert to this aspect of the case. But this- discussion is sufficient to show that Abdullah's own evidence was not free from Material discrepancies.
17. ' However, the circumstance which casts the utmost doubt on Abdullah's evidence, is his claim in the Sessions Court that his party had not inflicted any injuries whatever on the party of the accused, and in this connection, the witness said "we had not inflicted any injuries to accused party, because we were empty handed". Not only was this evidence false, but the witness had said in the committal Court. "Three or four persons from the accused side were injured. Their names are Bux Ali, Bakho Bahram, Ismail ana Darya Khan". Here we have to observe that we are very poorly impressed by the attempt of the witness to repudiate the admission which he had thus made in the committal Court, but he was confronted with his statement in the Committal Court which was duly brought on the record, therefore, it is very clear that the witness deliberately perjured himself in order to give evidence on lines which would ensure the conviction of the twelve accused on a charge for murder. Additionally, all the other eye-witnesses also falsely denied that the members of their party had inflicted any injuries on the party of the accused. Therefore, this dishonest repudiation by the eyewitnesses of the injuries inflicted by their party is a clear case of preconcerted perjury and in the circumstances, even on the assumption that the evidence of Abdullah shoul I be accepted on the principle of sifting the grain from the chaff, it is clear that his evidence cannot be accepted without corroboration by independent evidence of a very reliable nature.
18. ' We now turn to the evidence of the other eye-witnesses who were all declared hostile by the Sessions Court, because they had partially or completely gone back on their statements in the committal Court in which they had implicated all the accused. But a circumstance which escaped the attention of the committal Court was that all these witnesses were closely related to the deceased, therefore, it is doubtful if the Sessions Court was justified in assuming that these witnesses had succumbed to the approaches of the accused merely because they did not. "stand by the position taken by them in the committal Court. The trial Court also overlooked another circumstance. Although these five witnesses repudiated partially or wholly their statements in the committal Court, they all stated categorically that their party was unarmed and had not inflicted any injuries on the party of the accused. In other Words, even in the Sessions Court the witnesses had resorted to deliberate perjury in order to bolster up the prosecution case against the accused.
19. But the Sessions Court failed to notice that this was a circumstance which went against its hypothesis that all the five eye-witnesses had succumbed to the approaches of the accused.. And, further if the Sessions Court had examined the evidence given before it by each of the five witnesses carefully we venture to think that it would not have declared all of them hostile but the Sessions Court failed to examine the evidence of each witness carefully, and as the High Court also made no attempt to rectify the error of the Sessions Court, it becomes our duty to examine the question whether the Sessions Court was justified in declaring all the other five witnesses hostile.
20. ' Although Chhoto and Naseer had supported the prosecution case in the committal Court, both of them stated in the Sessions Court that they were not able to identify any of the assailants, and in this connection Chhoto went to the length of saying that he had identified the assailants in the committal Court only on suspicion. Both of them also said that they were in their houses at the time of the occurrence and had come out only after they had heard a commotion. Now as it is not the prosecution case that Abdullah and his party were waiting for the accused because they had decided to have a show-down with the accused, we see nothing improbable in the statement of these witnesses that they had come out of their houses on hearing a commotion, and we are inclined to believe this part of their evidence in the Sessions Court. But, as they expressed inability to identify any of the assailants, it was open to the Sessions Court, in the exercise of its discretion, to declare them hostile.
21. ' However, we are disturbed by the manner in which the other three eyewitnesses were declared hostile, because these three eye-witnesses did not take the position that they were not able to identify any of the assailants. And, for example, Nuruddin had implicated in the Sessions Court, the first and the sixth appellants and two of the other accused. Arbab had identified the first, second, third and sixth appellant in the Sessions Court, whilst Ilahi Bux had identified three of the acquitted accused. It is true that these witnesses had further said in the Sessions Court that they had come out of their Houses only after hearing a commotion and that they saw a very large number of assailants. But, as we explained, merely because the witnesses said that they had come out of their houses after hearing a commotion, this would not mean that they were falsely trying to damage the prosecution case. Next, as to the question of the number of assailants, we pointed out earlier, that Abdullah whose evidence impressed the Courts so much, had made contradictory statements in the Sessions Court about the number of assailants, who had attacked his party. Therefore, the Sessions Court was not justified in declaring Nuruddin.Arbab and Ilahi Bux hostile, because these three witnesses stated that they had been attacked by a very large number of assailants. Finally, as to the question of the identification of the assailants, we pointed out that Abdullah was not able to identify the assailants, who attacked him with lathis and hatchets. Similarly, as both the Courts preferred the lower Court's statements of these five witnesses, it is relevant to point out that Naseer, and Ilahi Bux had received injuries, but even in their lower Court statements they had not been able to identify their assailants. In these circumstances, it is obvious that either because of a dust-storm as claimed by some of the eye-witnesses or because large numbers of men were attacking one another, it was not really possible for an honest witness to identify, all the assailants. Therefore, the Sessions Court was not justified in declaring Nuruddin, Arbab and Ilahi Bux hostile. But after they were declared hostile, they went out of their way to damage the prosecution case and so we would ignore this part of their evidence. However, we have to emphasize here that the Sessions Court had erred in declaring these three witnesses hostile and there was no case for bringing their lower Court statements on the record under section 288 of the Criminal Procedure Code.
22. ' However, as the lower Court statement of Naseer and Chhoto were properly brought on the record, the question is whether they are fit to be relied upon, and whilst, the High Court has not given any reasons for preferring these statements, the lower Court has given two reasons for preferring these statements. The first was that Abdullah was a very reliable witness, and the lower Court statements of these other eye-witnesses were in accordance with Abdullah's evidence. The second was that the accused had failed to prove that the eye-witnesses were hostile to them. We regret our inability to agree with the two reasons thus given by the Sessions Court and as we have explained, the view of the Sessions Court about Abdullab's evidence is based on a total misreading of that witness's evidence, and also suffers from inherent contradictions. Therefore, as Abdullah's evidence is not fit to be accepted without strong corroboration, it cannot possibly lend any support to the lower Court statements of Naseer and Chhoto. Then as to the second ground given by the Sessions Court for preferring the lower Court statements, it is, true that the accused had failed to prove that the eye-witnesses had some specific grudge against them. But, they had proved beyond all doubt that the eye-witnesses had given false evidence against them. And, in a criminal case which rests on ocular evidence alone, the only question before the Court is of the veracity of the eyewitnesses, and as the accused have proved that the eye-witnesses were not witnesses of truth, nothing turn on their failure to prove enmity on the part of these eye-witnesses. And this means that the Courts below erred in relying on the lower Court statements of the witnesses, Naseer, Chhoto, Arbab and Nuruddin.
23. ' We observed earlier that the learned Judges of the High Court had taken the view that the prosecution had proved the recoveries of the three empties from the vardat and we would now examine the question whether these recoveries can furnish any corroboration of the ocular evidence, According to the prosecution, the empties matched the gun which the first appellant, Daulat, is alleged to have produced. But, as rightly submitted by Mr. Junejo not a sing e witness had said that this appellant fired more than one shot. Therefore, the only inference from the recoveries is that the eye-witnesses had given false evidence or that the empties were planted. In these circumstances, the learned Advocate-General very fairly conceded that far from corroborating the ocular evidence, the evidence of the recoveries cist doubt on the evidence of the eye-witnesses.
24. The learned Advocate-General also admitted that he could not refer us to any evidence which could corroborate the ocular evidence, and we have also not been able to find any such evidence.
25. ' With these observations, we turn to Mr. Junejo's last submission. Mr. Junejo pointed out that although the ocular evidence relied upon by the High Court implicated all the twelve accused, the learned Judges had acquitted six of the twelve accused and upheld the conviction of the appellants, although there was not a shred of evidence to corroborate the ocular evidence against the appellants. The submission is correct. And, further the learned Judges have not given any reasons for holding that the ocular evidence was sufficient to support the conviction of the appellants, but insufficient to support the conviction of the other accused, therefore, we have to grope in the dark about the reasons which led them to this conclusion. It may be that the learned Judges were influenced by the disparity in the injuries inflicted by the two parties on each other.
26. But, if so, with respect, we have to observe that this disparity in the injuries inflicted by the two parties cannot throw any light on the identity of the assailants. And, although, we are also disturbed by this disparity, in the peculiar circumstances of the case and the unfortunate fact that all eye-witnesses have resorted to perjury, it is not possible to determine how the occurrence began. And, on the other hand, we cannot ignore the injuries inflicted by the party of the complainant. They had killed Jummo with hatchets blows on the head and although the other appellants survived their injuries, the appellant Ismail had received three blows on the head.
27. Similarly, the fifth appellant had received eight injuries of which five were on the head one was caused by a firearm and the observation to the contrary by the learned Judges is not supported by the medical evidence. Finally, the appellant, Behram had five injuries of which two were grievous. In these circumstances, Mr. Junejo submitted that the injuries by the party of the accused had been inflicted in a sudden fight and although the party of the accused had got the better of the opposite-party, they had not taken any undue advantage or acted in a cruel or unusual manner, therefore, he submitted that the conviction of the appellants should be set aside.
28. The learned Advocate-General stated that in the circumstances of the case, he was unable to defend the conviction of the appellants. As the case rests on ocular evidence and as this evidence is full of infirmities, the statement of the learned Advocate-General was the only proper course to be adopted by the State and as we are satisfied that the prosecution has failed to prove the guilt of the appellants, we allow the appeal and set aside the conviction of the appellants.