1. M. R. KHAN, J.-This appeal, by special leave granted at the instance of the State, is directed against the judgment and order of a Division Bench of the High Court ' of West Pakistan, Lahore, setting aside the convictions and sentences of the six respondents herein, under sections 302/149 and 148 of the Pakistan Penal Code and acquitting them of the charges under those sections.
2. The respondents Khan Beg, Dildar, Shah Beg, Zilla, Langu and Mammu were convicted under section 302/149 of the Pakistan Penal Code by the Sessions Judge of Sargodha for committing the murders of Shahu and his two sons Salabati and Mohabati and each of them was sentenced to death on three counts for those murders. They were also convicted under section 148 of the Pakistan Penal Code and sentenced to one year's rigorous imprisonment, each. On appeal and reference, the learned Judges of the High Court set aside the convictions and sentences and acquitted all the respondents, giving them the benefit of doubt.
3. A petition for special leave to appeal against the High Court's order of acquittal was made on behalf of the State. Leave was sought mainly on the ground that some inadmis--sible evidence was relied on by the learned Judges in discrediting the evidence of the eye-witnesses in this case.
4. As the point raised did not appear to be without substance, leave was granted to re-examine the evidence.
5. Of the six respondents Khan Beg, Dildar, Shah Beg and Zilla are brother, The respondents Langu and Mammu who are uterine brothers are the sister's sons of Khan Beg and his brothers. Sometime in the year 1955, Langu married Mst. Gami, a daughter of Shahu, deceased. Two sisters of Langu were married to Salabati and Mohabati, the deceased sons of Shahu, deceased. Thus the respondents and the deceased were inter-related.
6. Ali (P. W. 17), Shahadat (P. W. 18), Muhammad (P. W. 19) and Sarja (P. W. 20) are related inter se.
7. They were also related to the deceased persons. P. W. Ali is the wife's brother of Shahu, deceased and maternal uncle of the deceased Salabati and Mohabati. P. W. Shahadat is the brother of Shahu, deceased. P. W. Muhammad is the first cousin of Shahu, and P. W. Sarja is the son of P. W.
8. Shahadat.
9. The respondents are residents of Chak No. 30 N. B., Tehsil and District Sargodha which is adjacent to Chak No. .75 Alif S. B. Where the deceased Shahu, Salabati and Mohabati and also P. W. Shahadat had their deras and behks. A passage runs between Chak No. 30 N. B. And Chak No. 75 Alif S. B. The place of occurrence, according to the prose--cution, was at a distance of about one karam from the said passage towards, north in Killa No. 20, square No. 57 of Chak No. 30 N. B.
10. About 10 years prior to the present occurrence, Khan Beg, who had married Mst. Allo, a daughter of Shahu, deceased had divorced his wife. It was on account of that divorce that the relations between Khan Beg and Shahu, deceased were said to be strained. Langu, a nephew of Khan Beg was staying with him with his wife. It was alleged by the prosecution that three days before the present occurrence, Langu gave a beating to his wife Mst. Gami and turned her out of the house.
11. Mst. Gami went away to the house of her father Shahu, deceased and told him as to what had happened. Shahu, deceased then sent his brother P. W. Shahadat to Khan Beg to request him to persuade Langu to take back his wife: P. W. Shahadat approached Khan Beg with this request and the latter agreed to come to the dera of Shahu, deceased on the third day to settle the matter. On the third day which was the 12th day of March 1965, P. Ws. Ali, Shahadat, Muhammad and Sarja were present at the behk of P. W. Shahadat and smoking huqqa shortly before the sunset time.
12. Shahu, deceased and his two sons Salabati and Mohabati deceased were then at their own behk which was at a distance of about 4'8 karams from the behk of P. W. Shahadat. At that time, the respondents Dildar and Langu came to the behk of Shahu, deceased empty-handed and took him to the northern side where there was a growth of kabli keekers. Soon thereafter there was a hue and cry of Shahu, deceased from that side. On hearing the hue and cry, P. Ws. Ali, Shahadat, Muhammad and Sarja ran towards that direction. Also Salabati and Mohabati ran towards the spot from where the hue and 'cry of their father Shahu was coming. The witnesses claimed to have seen Langu and Dildar armed with spears and Khan Beg, Shah Beg, Zilla and Mammu armed with sticks.
13. These P. Ws., according to the prosecution, saw Khan Beg, Shah Beg and Mammu inflicting stick blows on Shahu, deceased. As Mohabati approached the place of occurrence, he was given spear blows by Langu and Dildar and also stick. Blows by Khan Beg. Salabati who had reaches the spot after Mohabati was given stick blows by Zilla and Marnmu. On seeing the said four witnesses who were at a distance of 7 or 8 karams from the spot, the respondents raft away with their respective weapons. P. Ws. Ali, Shahadat Muhammad and Sarja found all the three injured persons alive and they brought them to the dera of Shahu, deceased. Shahu died soon after he was taken to his dera Salabati and Mohabati who were then still alive were in a precarious condition... P. W. Ali then left for Sargodha at about 7-00 p.m. And lodged an F. I. R. There at about 3-30 a.m. Mean--while, P. W. Raja Muhammad Ashraf came to the dera of Shahu, deceased and came to know of the occurrence from, the witnesses. P. W. Shabadat remained with the dead body of Shahu. Raja Muhammad Ashraf and others then carried the injured Mohabati and Salabati to Sargodha Hospital on cots.
14. Salabati died at 4-00 p.m. On the 13th March 1965, and Mohabati died at 1-30 p.m. On the 14th March 1965, at the hospital. The police took up the investigation and sent the dead bodies to the mortuary for post-mortem examination. On the 14th March 1965 Langu, Dildar and Shah Beg were arrest---1 Khan Beg and Zilla were arrested the next day,' 1, and "ammu was arrested on the 16th March 1965: On the 19th March 1965, Langu led to the recovery of a blood-stained spear. Shah Beg and Dildar produced lathis before the police which, however, were not found to be stained with blood. It may be mentioned here that the origin of the blood on the spear could not be determined as the blood-stains had disintegrated.
15. On the 13th March 1965, at .5-30 a.m., Dr. Riazuddin (P, W. 1) examined Salabati while he was still alive and found a swelling on his head in an area of 13" x 10". The same injury was found on post- mortem examination on the dead body of Salabati. In the opinion of the doctor, the death of Salabati was due to the aforesaid injury which was sufficient in the ordinary course of nature 'to cause death. Mohabati was also examined by the same doctor while he was alive. On examination, two stab wounds were found in his abdomen. Besides, a swelling in an area of 8' x 6" on the left side of his head ryas found. The left eye of Mohabati was found ecchymosed and swollen. The same injuries were found on post-mortem examination of the dead body of Molzabati. The stab wounds and the head injury, in the opinion of the doctor, caused his death.
16. The post-mortem examination of the dead body of Shahu revealed a swelling 13" x 10" situated on the whole of the scalp extending from one ear to the other and from forehead to neck. Besides, two abrasions were found. The death, in the opinion of the doctor, was due to the head injury which was sufficient in the ordinary course of nature to cause death.
17. All the six respondents were committed to the Court of Session to stand their trial for committing the murders of Shahu, Salabati and Mohabati and for rioting with deadly weapons. They were charged under sections 302/149 and 148 of the Pakistan Penal Code. The Sessions Judge of Sargodha convicted all the six respondents tinder section 302/149 of the Pakistan Penal Code and sentenced each of them to death on three counts for the murders of Snalm, Salabati and Mohabati. They were also convicted under section 148 of the Pakistan Penal Code and sentenced' to one year's rigorous imprisonment, each The convictions of the respondents rested on the ocular testimony of the four eye-witnesses all of whom were more closer, related to the deceased persons. On appeal and reference, the learned Judges of the High Court; on an appraisal of the evidence of the eye-witnesses, took the view that the presence of these witnesses at the scene of offence way doubtful and accordingly they gave all the respondents the benefit of doubt and acquitted all of them of the charges of triple murders and rioting.
18. On behalf of the State, the judgment of the High Court was assailed mainly on' the ground that in rejecting the evi--dence of the eye-witnesses the statement of Raja Muhammad Ashraf (P. W. 12) made before the police was used by the learned Judges as substantive evidence and that the reliance placed on the police statement of Raja Muhammad Ashraf which is inadmissible in evidence caused grave miscarriage of justice. It is true that the learned Judges referred to the statemdr5t of P. W. Raja Muhammad Ashraf, made before the police Exh. D. A. And noticed that in that statement Raja Muhammad Ashraf did not mention that P. Ws. Shahadat, Muhammad and Sarja had informed him about the commission of the murders of Shahu, Salabati and Mohabati by the six res--pondents. No doubt, the statement of Raja Muhammad Ashraf before the police could not be used as substantive evidence. But it appears from a careful perusal of the judgment of the High Court that the learned Judges,' on an analysis of the evidence of the eye-witnesses, were unable to believe their presence at the scene of offence for which they gave reasons and that they referred to the police statement of Raja Muhammad Ashraf apparently to add strength to the reasons already given by them for discrediting the evidence of the eye-witnesses. Had the learned Judges relied only on the police statement of Raja Muhammad Ashraf for disbelieving the presence of the eye-witnesses, their judgment would have surely suffered from serious illegality for treating the said police statement as substan--tive evidence.
19. There were four eye-witnesses in this case namely, Ali (P. W. 17), Shahadat (P. W. 18), Muhammad (P. W. 19), and Sarja (P. W. 20). These witnesses, other than Ali stated at the trial that after the arrival of Raja Muhammad Ashraf' (P. W. 12) at the dera of Shahu, deceased they told him that the six respondents had assaulted Shahu, Mohabati and Salabati, deceased. P. W. Raja Muhammad Ashraf, of course, stated at the trial that P. Ws. Shahadat, Muhammad and Sarja gave out to him that the six respondents had committed the murder of Shahu and inflicted injuries to Mohabati and Salabati. He was, however, confronted with his statement before the police in which he did nut say so. P. W. Raja Muhammad Ashraf admitted in cross-examination that he did not tell the committing Court that the said three eye-witnesses had told him -the names of' the assailants. Thus the evidence of Raja Muhammad Ashraf at the trial was of no importance to the prosecution.
20. It is in evidence that village Ajnala is lz miles away from the place of occurrence. In his first information report, P. W. Ali described himself as a resident of viilage Ajnala, but at the trial he gave his residence in Chak No. 30 N. B. In cross-examination, however, he stated that he was living in his dera in the area of Chak No. 75 Alif S. B. P. W. Ali stated at the trial that Shahu, deceased had earlier asked him to come to his dera on the day appointed by Khan Beg for talk about reconciliation between Langu and his wife. The said appointed day, as already stated, was the day of occurrence.
21. It appears from the evidence of Shahadat (P. W. 18) that Khan Beg, though he had told him that he would come to the dera of Shahu, deceased on the appointed day; for talk of compromise, no exact time was fixed by Khan Beg for such talk. That being so, it remained unexplained as to why P.
22. W. Ali came to the behk of P. W. Shahadat exactly before sunset on the date of occurrence and not earlier. In his examination-in-chief, Ali stated that Salabati, deceased was inflicted a stick injury on his head by the respondent Zilla. In cross-examination, he was confronted with his statement in the committing Court wherein he stated that Zilla had been armed with a spear. This is a material contradiction as regards the weapon held by Zilla. Ali stated that when they heard the hue and cry of Shahu, deceased, they saw him being beaten by the respondents while they were still in the behk of Shahadat. In this regard, he was contradicted by Shahadat (P. W. 18) who stated that while running towards the direction of the spot of occurrence they saw Shahu being inflicted injuries not by ill the respondents but by Khan Beg, Shah Beg and Mammu. It is in evidence that the distance between the behk of Shahu, deceased and the place of occurrence is about 68 karams and that the behk of P. W. Shahadat is 48 karams further away from the behk of Shahu, deceased. Thus the behk of P. W. Shahadat was rather at some considerable distance from the exact place of occurrence. That being so, it might not be probable from the witnesses assembled at the behk of P.
23. W. Shahadat to see the assault while they were still in the behk of P. W. Shahadat, as stated by P. W.
24. Ali.
25. P. W. Shahadat stated that he and his companions were running from his behk 'in the direction of the place of occur--rence and while so running saw Shahu being inflicted injuries. In cross- examination, he was confronted with his police statement wherein he had stated that he had seen the occurrence only after reaching the spot. Moreover, his evidence in this regard was in conflict with the evidence of P. W. Ali who stated that they first saw the occurrence while they were still in the behk of P. W. Shahadat. P. W. Shahadat stated at the trial that he had told P. W. Raja Muhammad Ashraf the names of the six respondents as the assailants of the three deceased persons. In cross-examination his attention was drawn to his statement before the police and the com--mitting Court. In those statements, he did not say that he had told the names, of the respondents to- P. W. Raja Muhammad Ashraf as the assailants. Shahadat deposed that P. W.
26. Muhammad came to his behk on the day of occur--rence in order to smoke huqqa. He was confronted with his statement before the committing Court wherein he stated that P. W.
27. Muhammad came to his dera on the morning of the day of occurrence to help him in the plantation of sugarcane crop.
28. P. W. Muhammad, according to the evidence of P. W. Ali, is a resident of village Ajnala at a distance of 1-- miles from the place of occurrence. He stated at the trial that on the day of occurrence, at degarwela, he was smoking huqqa in the behk of P. W. Shahadat.. It does not stand to reason that P. W. Muhammad having his residence at a distance of 1 t miles would be coming to the behk of P.
29. W. Shahadat only for the purpose of smoking huqqa. At any rate, he was confronted with his statements before the police and the committing Court wherein he did not say that he had come to the behk of Shahadat for smoking huqqa. There is no evidence to show that P. W. Muhammad was also invited to participate in the alleged compromise talk. Hence, his alleged presence in the behk of Shahadat at the relevant time for the purpose of smoking huqqa was rather unusual. This witness stated that his clothes were smeared with blood when he lifted injured Mohabati. His clothes alleged to have been smeared with blood would have furnished corroborative evidence, but these were not produced.
30. Sarja (P. W. 20), the last eye-witness in this case is the son of P. W. Shahadat. According to this witness, all the six respondents had encircled Shahu, deceased, but no other eye-witness said so.
31. He stated that he also had told P. W. Raja Muhammad Ashraf that the six respondents, were the assailants, but in his statements before the police and the committing Court with which he was confronted, he did not say that he had told Raja Muhammad Ashraf the names of the respondents as the assailants of the deceased persons. When the witnesses heard the hue and cry of Shahu, deceased it was only natural for them to pick up whatever weapon was readily available in order to rescue Shahu, but none of the witnesses went to, the place of occurrence with any weapon. This was also something unnatural.
32. The above analysis of the evidence of the four alleged eye-witnesses may give rise to some reasonable doubt as to whether they were actually present at the scene of offence and saw the occurrence. The learned Judges of the High Court relied on most of the facts and circumstances as noticed above for which they found it difficult to believe the presence of the witnesses at the scene of offence.
33. The police station is at a distance of 7 or 8 miles from the place of occurrence. The F. I. R. Was lodged by P. W. Ali at 3-30 a.m. Having regard to the distance between the place of occurrence and the police station, the delay in lodg--ing the F. I. R. Was rather considerable. P. W. Ali offered an explanation that he covered a distance of 3' miles to a railway station on foot to catch a train there for Sargodha and that on his missing the train he waited till mid-night for catching another train.
34. This explanation was found to be untenable by the learned Judges as Ali could have covered the distance much earlier even if he had proceeded to Sar--godha on foot. Besides, no such cause of delay was stated in the F. I. R.
35. As regards the motive, both the trial Court and the learned Judges of the High Court found that the alleged motive for the murders was insufficient and unconvincing. Langu's two sisters were married to Mohabati and Salabati, and he himself married a daughter of Shahu. Khan Beg who had married another daughter of Shahu, deceased had divorced a his wife long 15 years ago. It cannot, therefore, be said that the respondents had any strong motive to bring to an end the lives of Shahu and-his two sons.
36. The principles which have been consistently followed by this Court for justifying interference with orders of acquittal passed, by the High Courts are that this Court will be reluc--tant to interfere with such orders unless it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported to acquit is at all supportable, even though upon the evidence on record a different conclusion might be arrived at. In this regard, reference may be made to the decisions of this Court in the cases of Lalu v.The State (PLD 1959 SC (Pak.) 258), Fateh Muhammad v. Bhagoo (PLD 1960 SC 286) and Siraj Din v. Kal a (PLD 1964 SC 26).
37. The order of the learned Judges of the High Court acquitting the respondents, as has been stated earlier, is based on certain grounds furnished by the evidence on record. The elimination of the statement of P. W. Raja Muhammad Ashraf made before the police which is inadmissible as substantive evidence will make no difference inasmuch as other materials were there on record to form the foundation of the learned Judges' conclusion that the presence of the alleged eye- witnesses at the scene of offence was doubtful. In the result our interference with the order of acquittal is not called for. The appeal is accordingly, dismissed.