1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by Special Leave, is against the acquittal of the respondents, Muhammad Hussain and Bhag, by the Lahore High Court, Lahore, by judgment dated 14th of June, 1975.
2. According to the prosecution case, the incident occurred at noon on 30th of March, 1971, in village Chak Boota, District Lahore, in which Muhammad Hussain son of Elahi Bakhsh lost his life in consequence of two spear blows inflicted by the first respondent. Earlier in the day, the deceased had quarrelled with this respondent and but for the intervention of Jiwan this incident would have taken an ugly turn. Later, at the stated time, Akbar passed in front of the Dera of the deceased to which exception was taken by him which led to an exchange of abuses and the deceased slapped Akbar. Thereafter, the deceased left his Dera to fetch a plumber who was repairing a band-pump in the house of Hidayat. After conversing with him he left for his house but on the way the respondents and their accomplices Sardar and Akbar accosted him and respondent Muhammad Hussain inflicted two spear hlows on the deceased which caused him to fall on the ground. Bhag was also armed with a spear while Sardar and Akbar had dangs. The part attributed to others was that they had given a lalkara to finish of the deceased. The deceased expired at the spot. This incident was witnessed by Talehmand, Imam Din, Hassan Muhammad and Hidayat. Hassan Muhammad, thereupon, proceeded to Police Station, Kahna where he lodged the first information report at 2-45 p.m.
3. The respondents were arrested the same day. Respondent Muhammad Hussain, thereafter, led to the recovery of a blood-stained spearhead anti the handle of a dang which was not blood- stained. No recovery was made at the instance respondent Bhag.
4. On the deceased the doctor noticed one spear blow while on respondent Bhag and the acquitted accused Muhammad Akbar he observed injuries with sharp-edged and blunt weapons respectively. One of the injuries on Shag was more than 48 hours old. Further, these injuries were simple in nature.
5. At the trial the prosecution examined Talehmand (P. W. 10), Imam Din (P. W. 11), Hassan Muhammad (P. W. 12) and Hidayat (P. W. 13). All these witnesses were related to the deceased. Talehmand (P. W.
6. 10) and Hidayat. (P. W. 13) were his cousins in the second degree; Imam Din was his distant collateral; and Hassan Muhammad was his real brother.
7. Respondent Muhammad Hussain stated, in his defence, that he was innocent and had been falsely implicated. Respondent Bhag stated before the inquiry Magistrate that the injuries on his person were received while doing "Zamindara" work but at the trial he changed his statement and pleaded that as he, "was given Kirpan blows by Muhammad Hussain deceased". He acted in self-sdefence.
8. Akbar explained the injuries on his person stating that he had received them while doing "domestic" work.
9. The trial Court held that the presence of Talehmand, Imam Din and Hidayat was plausible as their houses were situate at or near the place of occurrence but it found a discrepancy in regard to the number of blows caused to the deceased. In the F. I. R., and in his testimony, Hassan Muhammad stated that Muhammad Hussain gave two Barchhi blows to the deceased but the medial evidence showed that he suffered only one such injury. On this aspect of the case, the other witnesses in their statements, recorded under section 161, Cr. P. C., only mentioned about one Barchhi blow but subsequently in their testimony they toed the same line. The trial Court nonetheless held that this was the only exaggeration in their statements but in all other respects they were consistent not only in regard to the assailant who gave the Barchhi blows but also as to the part attributed to Bhag, Sardar and Akbar. Accordingly, it accepted the ocular testimony and the motive imputed for this murder. As to their being interested on account of their relationship, the trial Court held that mere relationship would not be sufficient to exclude their testimony when otherwise their evidence was corroborated by the recovery of the blood-stained earth and the blood-stained spearhead at the behest of Muhammad Hussain. As for Bhag, he admitted his presence but had failed to establish his plea of self-defence as the two injuries on his right hand could not be explained on the hypothesis of an attack by a formidable weapon such as Kirpan. Similarly, as against Akbar, the injuries were also .Not given any credence as they could not have been sustained in the context of the fact that no resistance was offered by the deceased and he had not taken part in attacking the deceased with his weapon. The trial Court, however, gave the benefit of doubt to Sardar and Akbar as no injury with a blunt weapon was found on the deceased and the Lalkara attributed to them was not established. Accordingly, it convicted Muhammad Hussain and Bhag under section 302, P.
10. P. C. Read with section 34, P. P. C. And sentenced Muhammad Hussain to death and Bhag to transportation for life.
11. On appeal and reference, the High Court held that not only the plea of self-defence, raised by Bhag, was probable but also the ocular version was improbable and false. In giving credence to the plea of Bhag, the High Court observed :- " . . . However, that portion of the statement of Hidayat, P. W. 13, made before the Committing Magistrate, wherein he stated that the deceased after receiving injuries had inflicted datri blow to Bhag appellant, is not believable, because the nature of the injury received by the deceased was such that he could not have been able to give any injury after receiving the fatal injury. The blade of the spear ran in the chest through and through cutting rib No. 4 and piercing through the lung and the heart. So the inference is irresistible that the deceased had caused injuries to Bhag appellant before himself receiving injury No. 1."
12. This conclusion rested on the further consideration that the deceased had not visited the house of Hidayat for the purpose as was brought out in the prosecution; case and that the deceased, therefore, was not attacked on his way back to the house. The High Court again, on the appraisal of the evidence held that Bhag was unarmed for if he had a spear, he would not have allowed the deceased to cause to him injuries Nos. 1 and 3 with his dranti. The High Court next concluded that it were the respondents who were attacked with they happened to pass near the house of the deceased and it was after Bhag had received the injuries that one of his relatives brought out a spear and caused the injury with it to the deceased.
13. The High Court also did not place any reliance on the recovery of the spearhead at the instance of Muhammad Hussain as it was effected from a place which was in the joint possession of the respondents and the acquitted accused in which case it could not be said that it was in the exclusive possession of Muhammad Hussain; and at best only this much could be imputed that he had the knowledge about the spearhead lying at that place. Lastly, the High Court held that although the prosecution witnesses had stated that respondent Muhammad Hussain had caused two barchhi blows yet only one such injury was established which evidently showed that they bad not witnessed the occurrence and it was only after they had observed two injuries on the deceased that they spoke about two barchhi blows having been caused to him. For all these reasons the High Court gave to them the benefit of doubt and acquitted them.
14. Leave to appeal was granted to consider the case of only Muhammad Hussain against whom there was consistent evidence that he had caused the solitary fatal blow to the deceased which was corroborated by the recovery of a blood-stained spearhead. As for Bhag the relief as against him was refused as no other act was attributed by any of the eye-witnesses and, therefore, it was not considered proper or justifiable to re-open his case merely on the basis of a "self incriminating statement."
15. The High Court while conceding the plea of self-defence raised by Bhag has held that neither he nor Muhammad Hussain were armed with any weapon; and that further it were they who were attacked by the deceased being armed with a dranti with which he caused injuries Nos. 1 and 3 to Bhag and it was one of the relatives of Bhag who hid, thereafter, brought out a spear and caused a blow with it to the deceased. This finding rested on the consideration of the other features in the evidence which were found to be unsustainable.
16. In assessing the credibility of the prosecution evidence it ins difficult to believe the ocular testimony in regard to the blows caused to the deceased. Talehmand stated that respondent Muhammad Hussain gave one blow on the chest and the other on the back of the deceased. The others have also toed the same line and not only this but Hassan Muhammad who had lodged the F. h. R. Had also mentioned about the respondent Muhammad Hussain causing two barchhi blows to the deceased. The 'High Court while appreciating this fact has held that the witnesses had lien in stating the number of blows; and if at all they had seen the incident there was no reason for them to make this mistake. Apparently it seems to us that the barchhi blow went through and through and left two openings, one on the chest and the other on the back. It was, therefore, that the witnesses who saw the two injuries on the deceased after the incident spoke of two blows not realising that the other was caused by the force with which the weapon was thrust on the chest of the deceased. This discrepancy leaves room for doubt as to whether they in fact saw respondent Muhammad Hussain causing the spear blow.
17. Again, it was brought out in the prosecution case that immediately before the incident the deceased had gone to the house of Hidayat to converse with the plumber for repairing his hand- pump but Hidayat did not say so in his statement recorded under section 161, Cr P. C. And therefore, the High Court held that this feature was introduced in the case by Hassan Muhammad when in fact the incident occurred while the deceased had come out of the house and not on his return from the house of Hidayat. This finding cannot be regarded as unreasonable in the context of the discrepant statements of Hidayat and Hassan Muhammad. Again, the Lalkara imputed to Sardar and Akbar, the acquitted accused, was disbelieved not only by the trial Court but also by the High Court and we see no reason why they would have accompanied the respondents if neither they had raised the Lalkara nor done any overt act. It is difficult to believe that they were three at all and to this extent the prosecution evidence appears to be incredible.
18. Further, Imam Din has not stated in his statement recorded under section 161, Cr. P. C. About the presence of Hassan Muhammad, Talehmand, Rafiq and Hidayat. Similarly, Hidayat has not stated about the presence of Talehmand, Imam Din and Muhammad Hassan in his police statement as well as before the inquiry Magistrate although their names are mentioned in the F. I. R. But we do not find any reason as to why they would omit to mention the names of the other witnesses in their statements recorded shortly after the occurrence. Be that as it may, if this omission in regard to the presence of witnesses is kept in juxtaposition with the number of barchhi blows attributed to respondent Muhammad Hussain, it leaves room for doubt that the witnesses had at all seen the main incident. In this background, the conclusion of the High Court that Bhag sustained injuries Nos. 1 and 3 as a result of dranti attack by the deceased cannot be regarded as unreasonable for at least two witnesses have ostensibly admitted the factum of injuries but did not say as to how Bhag received those injuries. Then fact therefore, that the deceased was armed with a dranti was plausible ; and that if either Bhag or respondent Muhammad Hussain were armed with a spear then we do not see how the deceased could inflict injuries for I in that event one of the two respondents would have attacked with his spear in case they had apprehended an attack by the deceased. The finding of the High Court that none of them was armed also fits in the defence plea.
19. The over all examination of the prosecu--tion evidence leads us to conclude that they had not only falsely implicated the acquitted accused but also their testimony was not free from falsehood which apparently reflected on their credibility in regard to the part attributed to respondent Muhammad Hussain.
20. Now, as to the recovery of the spearhead, the High Court has nor disbelieved Its recovery but has not placed reliance on it on the ground that respondent Muhammad Hussain could not be said to have been in exclusive possession of the spearhead as it was recovered from the Jhulani of the house where not only he but the acquitted accused and Bhag also resided. It held that only its knowledge could be imputed to Muhammad Hussain which conclusion is also sustainable as the recovery could not be exclusively fastened on him. Accordingly, this piece of evidence cannot corroborate the part attributed to him for establishing his guilt. If, as a High Court has held, that one of the relatives of Bhag had caused the fatal injury is accepted then the presence of the spearhead in the house cannot bring home the guilt to Muhammad Hussain if he had pointed it out for that weapon was not established to have been used by him. For all these reasons, the High Court could tale the view as it did which we do not regard as unreasonable.
21. Accordingly, we would uphold the judgment of the High Court and dismiss the appeal. Respondent Muhammad Hussain should be set at liberty forthwith if he is not required in any other case.