1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of the High Court of West.
2. Pakistan at Bahawalpur acquitting the first two respondents who had been convicted and sentenced to death by the Additional Sessions Judge, Rahimyar Khan under section 302/34 of the Pakistan Penal Code for the murder of one Jam Rahim Bakhsh Lambardar.
3. The leave was granted to consider whether the mode of appreciation of the evidence adopted by the learned Judges of the High Court was wholly unsuitable to the formation of correct conclusion in a case of the present character, and whether they did not fully discuss the evidence of eye- witnesses.
4. The occurrence took place in a field on the 19th of February 1964, at 3 p.m. And a First Information Report was lodged at Police Station Shidani, 6 miles away from the spot on the same day at 6-15 p.m. According to the prosecution case the respon--dents killed the deceased Lambardar because the latter had prevented the former from committing thefts and complained to the authorities against their misdeeds. Three eye-witnesses, viz. P. W. 8 Faqir Bakhsh, P. W. 9 Sher Mohammad and P. W. 10, Pir Bakhsh, deposed that they saw the two respondents, armed with hatchets, along with another co-accused, Karam Din, armed with a stick, emerge from a wheat field and attack the deceased.
5. P. W. Faqir Bakhsh was the companion of deceased Rahim Bakhsh and he has stated that although he implored the accused persons with folded hands not to kill Rahim Bakhsh, respondent Ahmad Din raised hatchet at the witness but the latter escaped. Then the same accused ran up to the deceased who was standing with folded hands before the former and gave a hatchet blow with its blunt side to the deceased which hit his hands. Respondent Manzoor then gave a hatchet blow with blunt side on the Bakhsh and this was followed by co-accused Karam Din who gave several lathi blows on the back of the head of Rahim Bakhsh when he had fallen on receipt of a blow from respondent Manzoor. The witness raised cries and P. W. Sher Muhammad and Pir Bakhsh came to the scene of occurrence. The evidence of P. W. Sher Muhammad and Pir Bakhsh is that they were returning home from Khanbela at about Zohar time and passed by the wheat field of Murad Ghasura. They found the three accused persons, including the two respondents coming out of the wheat field with hatchets in the hands of the two respondents and a sota in the hand of co- accused Karam Din, and attacking Rabim Bakhsh. According to P. W. Sher Muhammad, P. W. Faqir Bakhsh was present there, and respon--dent Ahmad Din struck Rahim Bakhsh and the blow fell on the hand of Rahim Bakhsh as he put out his hands to defend himself. Then respondent Manzoor struck with his hatchet on the head of Rahim Bakhsh, and co-accused Karam Din gave a sota blow to Rahim Bakhsh which brought him down in the watercourse. Co-accused Karam Din then struck several blows to the fallen Rahim Bakhsh. P. W. Pir Bakhsh stated that respondent Ahmad pin gave the first blow to Rahim Bakhsh with his hatchet and respondent Manzoor gave the second blow with his hatchet and co-accused Karam Din gave several sota blows before Rahim Bakhsh had fallen down.
6. Lambardar Rahim Bakhsh was taken to Khanbela Dispensary at 4-50 p.m. By complainant P. W.
7. Faqir Bakhsh and P. Ws. Sher Muhammad and Pir Bakhsh and the deceased ultimately succumbed to his injuries in the hospital at 6 p.m. The medical evidence disclosed the following injuries on the deceased :----
(1) A contused wound with four small contused wounds close to it as shown in the figure. It was situated on the fore--head in the middle. The margins of the wound were lacerated and swollen.
8. The measurements of the wound were 4" x 2" and skin deep.
(2) A contused wound 3" x --" and skin deep. It was situated obliquely on the top of the head in the middle. The margins of the wound were reddish and contused.
(3) A contused wound 2" x -- " and skin deep situated on the back of the root of his right index finger.
(4) An abrasion 3" x 8" on the point of the right shoulder. It was crusted and dark in colour.
9. The deceased died as a result of injuries to the brain and hemorrhage and shock. In the opinion of the P.W. 9, Doctor Abdul Marian, injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature.
10. The accused persons were arrested on the next morning and respondents Ahmad Din and Manzoor, in pursuance of their undertaking, produced blood-stained hatchets, Exhs. P. 1 and P. 2, respectively.
11. The learned Additional Session Judge found that P. W. Faqir Bakhsh had admittedly no relationship with the deceased and no hostility with the accused persons. P. W. Sher Muhammad frankly admitted that he was maternal uncle of P. W. Karim Bakhsh (an ordinary witness in the case), who was step-brother of the deceased, and, therefore, not closely related to the deceased. P. W. Pir Bakhsh had no relationship with the deceased and no grudge with the accused. Having discussed the inconsistencies in the evidence of the witnesses the learned Sessions Judge was of opinion that these were not such contradic--tions as to discredit any of the three eye-witnesses. The learned Sessions Judge also relied on the recovery of blood-stained hatchets at the instance of the two respondents although it could not be ascertained whether it was human blood.
12. The learned Judges of the High Court, however, at once discarded the evidence of recovery of the blood-stained hatchets on the ground that in the absence of evidence about the human origin of the blood it could not be said with judicial certainty that they had been used in the commission of the offence. As regards the ocular evidence, the learned Judges found that the evidence of the eye-witnesses were highly discrepant.
13. Their discussions of the evidence of the 3 eye-witnesses are as follows :- "Faqir Bakhsh P. W. In his statement Exh. P. A. Mentioned that the deceased only received two blows, one at the hands of Ahmad Din appellant, the other at the hands of Manzoor Ahmad appellant. He also mentioned that Karim Bakhsh gave a sota blow to the deceased, while he was lying on the ground. The only part assigned to him was that he was exhorting his companions to kill the deceased. He further stated in Exh. P. A. That he was not sure as to whether Manzur Ahmed hit the deceased on his forehead with the blunt side or the sharp side of his hatchet. In the trial Court he improved upon his previous statement. He stated that both Ahmed Din and Manzur Ahmad hit the deceased with the blunt sides of their hatchets. He also stated that after the deceased had fallen down on the ground, Karam Din gave some lathi blows to him. In other words he also assigned a specific part to Karam Din, which he had not done in his statement Exh. P. A. In his cross- examination he stated that when Sher Muhammad and Pir Bakhsh, P. Ws., arrived at the scene, the deceased had already fallen down and the assailants were running away. In other words they arrived after the occurrence. Sher Muhammad P. W., on the other hand, stated that after three blows had been received by the deceased at the hands of Ahmad Din, Manzur Ahmad and Karam Din, respectively, the deceased fell down in the watercourse and then Karam Din gave one or two more blows to him. In cross-examination he stated that after the deceased had fallen down, Karam Din gave him two or three blows. Before the C. M. However, he stated that Karam Din had given the deceased 5/7 sota blows. According to him the blows given by Karam Din were on the back of the deceased. Pir Bakhsh P. W. Stated that only three blows were received by the deceased before he fell down and after that the assailants ran away. Sher Muhammad P. W. Also stated that they had met Faqir Bakhsh and the deceased in Khan Bela Town, but this fact is denied by Faqir Bakhsh. The fact that Faqir Bakhsh in his statement Exh. P. A. Mentioned that he was not sure whether the deceased received injuries from the blunt side or the sharp side of the hatchet shows that he was waiting for the report of the doctor regarding injuries before committing himself and after that when the doctor's report had been received, he made a statement in Court that the blunt sides of the hatchets were used in inflicting injuries to the deceased, in order to bring his statement in conformity with the medical evidence on the record. Moreover, we also find that the evidence of these eye-witnesses is not corroborated by the medical evidence on the record because none of them stated that the deceased had also received an injury on his head as mentioned by the doctor. Taking all these aforementioned circumstances into consideration we find that these witnesses did not actually witness the occurrence."
14. It may be pointed out here that the learned Judges of the High Court clearly misconceived the evidence on two points. Firstly that P. Ws. Sher Muhammad and Pir Bakhsh arrived at the spot after the occurrence. Secondly, that the evidence of eye-witnesses was not corroborated by medical evidence.
15. As regards the first point, the evidence of both P. Ws. Sher Muhammad and Pir Bakhsh is clear that they saw the accused persons emerging from the wheat field and attacking the deceased. It was not even suggested to P. W. Sher Muhammad that he was not present at the spot. P. W. Pir Bakhsh categorically denied the suggestion that he was not present on the day of incident. The presence of these two witnesses finds mention in the First Informa--tion Report lodged soon after the occurrence. P. W. 18, Muhammad Sharif, S. -H. O., Police Station Shidani recorded the statements of both these witnesses at the Dispensary whereto immediately after the occurrence the deceased had been taken. So far as the 2nd point is concerned, broadly speaking the evidence of the eye- witnesses has been fully corroborated by the medical evidence. P. W. Faqir Bakhsh stated in his evidence at trial that respondent Manzoor struck on the head of the deceased with the blunt side of a hatchet. In his first information report he stated that he could not say whether the blow on the head was with sharp or blunt side of the hatchet. In cross-examination he stated that he did not remember whether before the committing Court he said that the blow was with the blunt side of the hatchet. P. W. Sher Muhammad said that respondent Manzoor struck on the head of the deceased with a hatchet. In cross-examination he said that he could not say whether the deceased was given blows with blunt or sharp side of the hatchet but that he was given the blows with corner of the blade. He found the hand of the deceased cut and the hatchet penetrated the head but the skin of the head was not cut. He, however, stated before the com--mitting Court that there was cut on the head of the deceased. P. W. Pir Bakhsh stated that respondent Manzoor gave the 2 blow with a hatchet and that the witness saw injuries on the thumb and head of the deceased but saw no cuts. In the com--mitting Court, however, he stated that the hands and head of the deceased were cut.
16. The medical evidence, reproduced elsewhere, shows that there was in fact an injury on the head of the deceased, but it was caused by a blunt substance. It is thus not inconsistent with the prosecution evidence that the said injury was caused by the blunt side of a hatchet. P. W. Faqir Bakhsh, companion of the deceased, can hardly be said to be inconsistent though the criticism that he had improved upon his statement in the First Information Report in this respect may not be unjustified. The evidence of P. Ws. Sher Muhammad and Pir Bakhsh regard--ing the cut nature of the said injury can hardly be termed inconsistent for the contused wound on the-head with its margins lacerated and swollen might be called cut by a lay person. It is true there was no injury on the thumb of the deceased, but it is not unlikely that the thumb coming into contact with the bleeding injury on his index finger, acquired some blood which was mistaken for an injury on the thumb.
17. In my opinion the inconsistencies referred to by the learned Judges of the High Court are of inconsequential nature and they cannot reasonably be considered as good grounds for disbelieving independent and disinterested witnesses. If importance be given to such insignificant inconsistencies there can hardly be any conviction in this country for seldom is there a, witness whose evidence does not suffer from such inconsistencies.
18. In considering these inconsistencies the learned Judges of' the High Court do not appear to have given due weight to the opinion of the learned Sessions Judge in the matter of appreciation of the evidence of the three eye-witnesses, and it is here the High Court has failed to act up to the well- established principle governing the review of criminal proceedings.
19. There was no reason or ground for disbelieving these indepen--dent and disinterested witnesses.
20. Their evidence without the aid of any corroboration is itself sufficient to maintain the conviction of the respondents.
21. We may, however, add that the entire evidence including the evidence of corroboration, should have been considered as at whole and not in isolation and failure to act on this principle perhaps let the learned Judges of the High Court to discard the evidence of recovery of blood-stained hatchets altogether on the t ground that the blood could not be found to be of human origin. In the case of Haji Ahmad v. State (1971 SCMR 326) the learned Chief Justice has observed as follows :- "There are no doubt some minor discrepancies in his evidence but this is not sufficient to label him as a completely untruthful witness as has been done by the trial Court, particularly, since his evidence has received corroboration by the recovery of the blood-stained sotas. The trial Court was completely wrong in taking the view that because the origin of the blood on these sotas could not be ascertained the recovery was useless. As pointed out by the High Court, this Court has, in the case of Ghulanz Rasul v. Ali Akbar and another PLD 1965 SC 363 not accepted the proposition that if the origin of the blood on a weapon of offence cannot be ascertained due to disintegration by the time the weapon reaches the Serologist, the recovery of the blood-stained weapon is of no assistance to the prosecu--tion. The actual recovery has not been doubted by the trial Court. In the circumstances, we do not see why it should not be accepted that the sotas recovered at thend instance of appellant Ahmad Khan and Hayat Khan were in fact blood-stained as certified by the chemical examiner and that this corroborated the evidence of the eye-witnesses that the deceased and Ghulam Rasul were hit by the sotas."
22. Similar view has been expressed in the case Abdul Khaliq v. The State (PLD 1970 SC 166).
23. The occurrence took place in broad daylight and there could be no mistake about the identity of the assailants, nor has any such mistake been suggested.
24. I would, therefore, allow the appeal, set aside the order of acquittal and convict the said two respondents under section 302/34, P. P. C., but having regard to long time that has elapsed between the date of occurrence as well as between the date of acquittal, and this day, I think the ends of justice will be sufficiently met if they are sentenced to transportation for life.