1. HAMOODUR RAHMAN, C. J.-This direct appeal under Article 58 (2) (b) of the Constitution of 1962 arises out of a judgment of a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, in a State appeal against the acquittal of the three appellants herein who were tried under sections 302/34 and 323/34 of the Pakistan Penal Code by the Additional Sessions Judge, Gujrat.
2. The High Court allowed the State appeal, convicted them under the aforesaid charges and sentenced them to transportation for life under section 302/34 of the Pakistan Penal Code and to one year's R. I. Each under section 323/34 of the Pakistan Penal Code. The sentences were, however, made to run concurrently.
3. The prosecution case against the appellants was that on the 8th of April 1962, at about Fajarwela whets the deceased was sitting in his Behk, situated about a bigha away from their well Darweshwala, smoking Hucca along with his two brothers, Ghulam Rasul (P. W. 2) and Naztr Muhammad (P. W. 3), a lad of 12 years, the appellants came armed with sofas from their own Behk, situated about 8/9 killas away, and when they were 2/3 karams away from the Behk of the deceased, raised lalkaras. Hearing this the deceased and his two brothers ran towards their well Darweshwala. The appellants pursued them and overtook them in the tobacco field of Ghulam Rasul near the well. The appellant Hayat Muhammad gave a sota blow on the head of the deceased and felled him down. Thereafer, it is alleged, appellants Ahmad Khan and Haji Ahmad gave more sota blows to the deceased and he became unconscious. They next attacked Ghulam Rasul (P. W. 2) and inflicted injuries on him with their respective weapons. Ghulam Rasul also fell down after receiving 2/3 sota blows. Mst. Bahishtan, the mother of the deceased, who was coming to the Behk from the village with her son-in-law, Muhammad Din, to get some milk, saw the appellants pursuing her sons from a distance of a few fields from Darweshwala well. She also saw the attack on her sons and joined them in raising a hue and cry.
4. The appellants after they had felled down the deceased and Ghulam Rasul, ran away towards their own well Satianwala taking their sotas with them.
5. The hue and cry raised attracted other villagers to the spot but they arrived after the appellants had fled. They carried the deceased and Ghulam Rasul to the hospital, situated at a distance of about a mile from the place of occurrence. The deceased, Sardarai was alive, though unconscious, when he was brought to the hospital. He was examined at 7-30 a.m. And according to the medical officer then posted at Phalia the injuries were found to be fresh and appeared to have been caused within three hours. Ghulam Rasul was examined at 7-45 a.m. And according to the doctor his injuries too were fresh and had been inflicted within the same period.
6. After obtaining the medico-legal reports, Ghulam Rasul went to the Phalia Police Station, situated about 4 killas away from the hospital, and lodged the first information report. This shows that it was recorded at 9-15 a m.
7. Sardar Khan died at 2-00 p.m. Without regaining conscious--ness. His autopsy was performed at 4-15 p.m. And it revealed three contusions on the head and 2 others on the left fore-arm and the left thigh respectively. On dissection, the scalp was found to be lacerated under the injuries, there was comminuted fracture of the frontal bone on its left side and fractures on both the tables of the left parietal, the left temporal and the left side of occipital bones. Membranes of the brain were congested and big blood clots were present under and over the membranes on the left side. The brain was also depressed under the injuries. Death, in the opinion of the doctor, was caused by compression of the brain as a result of blood clots which were due to fracture of the skull bones.
8. Two of the injuries were, according to this doctor, sufficient in the ordinary coarse of nature to cause death. The time between injuries and death was, according to him, about 9 to 12 hours.
9. At the time of the post-mortem examination it was also found that a white muslin turban and a blue chadar placed on the body of the deceased were stained with blood.
10. Ghulam Rasul (P. W. 2) had as many as 13 injuries on his person. 11 of these were contusions and two abrasions. Out of the contusions three measuring 4' x 1', 8' x 1" and 6' x 1" were on the back of left chest, another measuring 9' x 1' on the back of both sides of the chest and a third 5' x 1' on the back of the left buttock. These were all simple injuries caused by blunt weapons and as already stated they appeared to have been inflicted within three hours of the examination which was conducted at 7-45 a.m. During cross-examination the doctor was asked whether the injuries on Ghulam Rasul could be self---inflicted. He pointed out that five of the injuries could not be self-inflicted or caused by a fall on the ground but there was a possibility of their being "self-suffered".
11. The prosecution, in support of its case, examined three eye-witnesses; namely, the two brothers Ghulam Rasul (P. W. 2) and Nazar Muhammad (P. W. 3), and the mother Mst. Bahishtan Bibi (P. W.
12. 4). Muhammad Din, the brother-in-law, who was said to have accompanied Bahishtan Bibi to the Behk, was not, however, examined. . The Public Prosecutor gave him up as being unnecessary.
13. The oral testimony was also sought to be supported by the recovery of two blood-stained sotas at the instance of the appellants Hayat Mohd. And Ahmad Khan, who were taken under arrest on the 9th of April 1962. The appellant Hayat Muhammad led the police to his wheat field and pointed out a sota (Exh. P. 5) which was taken into possession. Similarly, the appellant Ahmad Khan led the police to his well Satianwala and pointed out a sota (Exh. P. 6) lying underneath the reeds. This also was taken into possession. Both of these were found by the Chemical Examiner to be stained with blood but the origin of the blood could not be determined by the Serologist due to disintegration.
14. The appellant Haji Muhammad who arrested three days later on the 11th of April 1962, but no recovery was made at his instance.
15. The motive set up by the prosecution for this crime was that sometime prior to the occurrence resulting in the death of Sardar Khan, one, Mst. Nawab Begum who was betrothed to the deceased, had been murdered and for this murder the deceased had lodged an information as an eye- witness. On the basis of this report Nawab, Sai, Salabat, Lal and three others were sent up for trial.
16. Before the Committing Magistrate the deceased and his brother Ghulam Rasul, who also claimed to be an eye--witness, had given evidence to the effect that they could not identify the assailants, as the night was dark and the assailants had muffled their faces. That case was pending trial before the Court of Session and the deceased and Ghulam Rasul had both been cited as witnesses to give evidence in that case. The appellants, who are relations of Nawab, Sai, Salabat and Lal had, it is alleged, wanted the deceased and Ghulam Rasul not to support the prosecution in that case but they had refused to accede to their request. Hence the assault on them.
17. The appellant Haji Ahmad is the father of the appellant Ahmad Khan and the appellant Hayat Muhammad is the former's first cousin. They all denied the allegations made against them by the prosecution. According to them, they had no enmity whatsoever with the deceased or Ghulam Rasul, for, actually neither of them had supported the prosecution case in the Committing Court in the case started for the murder of Nawab Begum. They alleged that the deceased and Ghulam Rasul were on inimical terms and had quarrelled with each other, because, the deceased was not giving to Ghulam Rasul the latter's share in the lands left by their father. According to the defence, therefore, the possibility was that the deceased was murdered by Ghulam Rasul but at the instance of the mother, Mst. Bahishtan, the appellants had been falsely implicated.
18. They admitted, however, that the accused in the case for the murder of Mst. Nawab Begum were their distant collaterals but maintained that they were not on friendly terms with them, for, the brothers of Sai, Salabat and Lal had filed a suit against the appellants Ahmad and Hayat for the lands of one, Rasul Bibi, and that the said case was pending at the time of the occurrence. Ahmad Khan and Hayat Ahmad also denied the recovery of the dangs at their instance.
19. The trial was held with the aid of three assessors who all agreed that the appellants were responsible for the injuries on the deceased and Ghulam Rasul, but two thought that they did not intend the murder of the deceased Sardar Khan.
20. They trial Court, disagreeing with the opinion of the assessors, disbelieved the entire prosecution case and acquitted all the accused. The main reasons given for coming to this conclusion were as follows :-
(1) that the motive set up by the prosecution was false ;
(2) that there was inordinate delay in the lodging of the first information report ;
(3) that no reliance could be placed on the oral testimony of the eye-witnesses, because,-
(a) they were not natural witnesses,
(b) they had not given a truthful account of the occurrence and had been guilty of making embellishments upon their previous statements,
(c) they had fabricated evidence with respect to the injuries received by Ghulam Rasul (P. W. 2) and
(4) that the recoveries of the sotas (Exhs. P. 5 and P. 6) were of no assistance to the prosecution, because, the origin of the blood on them could not be determined.
21. On appeal, the High Court disagreed with the trial Court on almost every point. It held that : -
(1) it did not necessarily follow from the fact that the deceased and Ghulam Rasul had given evidence which did not support the prosecution in the committing Court in the case for the murder of Mst. Nawab Begum that they would give the same evidence in the Court of Session ;
(2) in the facts and circumstances of this case there was no inordinate delay in the lodging of the first information report,
(3) the witnesses of the incident were natural witnesses,
(4) there were no material discrepancies in their respective statements and they had not been guilty of making any embel--lishments, and
(5) the recoveries of the blood-stained sotas did furnish adequate corroboration of the oral testimony.
22. The High Court, accordingly, set aside the order of acquittal, convicted the appellants both under sections 302/34 and 323/34 of the Pakistan Penal Code but having regard to the fact that they had been acquitted by the trial Court on the 11th of December 1962, i.e. More than three years before the pronouncement of the High Court's decision, they were given the lesser sentence of transportation for life.
23. Learned counsel appearing in support of this appeal has urged the same grounds which weighed with the trial Court and has contended that this appeal should be allowed and the convictions set aside.
24. Learned counsel contends that the prosecution case is from the start wholly improbable. It is suggested that the story of all the male members of the house sleeping at the Behk or cattle-shed about half a mile away from the village leaving a guest, namely Muhammad Din, and the womenfolk alone in the house, should not be accepted. If they were so afraid of their cattle being stolen that it became necessary for three male members to sleep at the Behk, it is still more improbable that they would be sleeping there without any kind of weapon for their protection against thieves or a watch dog.
25. These are, however, all conjectures, for, there is no evidence before us that it is unusual for male members in a village to sleep in the cattle-shed. As a matter of fact, if we were to speculate then one could equally well say that it is not unnatural for male villagers to sleep in the cattle-shed, particularly, when work has to be done in the fields early in the morning, during the sowing or harvesting seasons. Apart from this, in the present case, there was one male person in the house, namely, Muhammad Din. We have, of course, no evidence before us as to whether they had any kind of weapon or not. It may well be that even though they could have protected themselves with such weapons as would normally be available at a Behk, the deceased and his brothers got so frightened that they took their heels immediately on hearing the lalkaras of the appellants. We are, therefore, in agreement with the High Court that the brothers of the deceased could not, in the present case, be described as being unnatural witnesses, for, it was in every way natural for them to be with their brother, the deceased, at the Behk.
26. We also find it difficult to accept the suggestion that Ghulam Rasul, the injured witness, was not there at all. A great deal of argument has been advanced on the basis of the evidence of the doctor that the injuries found on Ghulam Rasul could be either "self-inflicted" or "self-suffered". The doctor as a truthful witness admitted this theoretical possibility, for, where only simple injuries are found on a person the possibility of these being self-inflicted or self-suffered cannot be altogether excluded but this possibility must be considered in the light of the number, the nature and the location of the injuries found and the circum--stances of the case. In the present case, even if it be assumed, that the incident took place sometime between 4-45 and 5-00 a.m. Of the morning, as suggested by the learned counsel for the appellants, there was not enough time for Ghulam Rasul to manufacture as many as 13 injuries on his person and reach the hospital by 7-15 or 7-20 a.m.
27. With the unconscious Sardar Khan, who was being carried on a cot, even if the hospital was only a mile away from the place. Sometime must have elapsed in bringing the cot either from the Behk or from the village and then carrying the injured upon it to the hospital. They must have reached there at least sometime before Sardar Khan was actually examined at 7-30 a.m. In this short time it could not have been possible for Ghulam Rasul not only to inflict several injuries upon his own person but also to get someone else to cause several other injuries on such portions of his body which he could not himself reach. As admitted by the doctor himself he could not have inflicted the injuries on his buttock and the back of his chest himself. He would have needed the assistance of another person for causing such injuries and this would not have been possible after the villagers had collected. The suggestion that the large number of injuries found on Ghulam Rasul were either self-inflicted or self-suffered is too fantastic to be accepted. Thus his presence is established beyond any doubt. He must have been at the B2hk at the time and he too must have been injured in the same incident.
28. 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 Ghulam 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 prosecution. 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 the instance of appellants 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.
29. Learned counsel for the appellants, however, argued that having regard to the nature of the injuries found upon Ghulam Rasul and the deceased there was no possibility of the sotas being blood- stained, as none of the injuries was such as could have led to any bleeding. We are unable to accept this contention, because, the medical evidence shows that the deceased had, in fact, bled and not only his muslin turban but also the blue chadar in his wearing were blood-stained. A great deal of argument was advanced on the question as to whether there could be any bleeding from any contusion or abrasion. But having looked at the original medico-legal report we find that the actual words used in the vernacular are "Phata Hua Zakham". This has been translated in English "as a contused wound". It would, therefore, suggest that the contused wound described in the case was an open wound which could have bled. In any event, in a case of this kind where as a result of lath! Blows struck on the head, the scalp is fractured and the brain is depressed, there would be concussion of the brain and as a result of such concussion of the brain there would be considerable bleeding both from the ears and the nose. In the present case, the post-mortem report confirms that there were big blood clots on the brain and the membranes were congested.
30. The possibility of there being bleeding through the nose and ears cannot, therefore, be excluded.
31. This, in our opinion, satisfactorily explains the blood--stains on the turban and the chadar as well as on the ground where the incident took place as also on the sotas recovered at the instance of two of the appellants.
32. Modi in his book on Medical Jurisprudence (13th Edn.) at p 259 states that the symptoms observed in fractures of the base of the skull are :- "(i) Signs of concussion or compression of the brain.
(ii) Effusion of blood in the sub-conjunctival tissue, or in the sub-occipital and mastoid regions.
(iii) Bleeding, or discharge of cerebro-spinal fluid from the nose, mouth, or one or both ears.
(iv) Lesions of the nerves issuing from the base of the skull giving rise to paralysis or loss of sensation of the parts supplied by them."
33. The possibility of the deceased having bled profusely as a result of the fractures of both tables of his skull from top to bottom cannot, therefore, be excluded.
34. Learned counsel has also attacked the veracity of Mst. Baheshtan (P. W. 4) on the ground that it is wholly improbable that an old woman like her would at this time of the morning be going to the Behk to fetch milk, particularly, when the son-in-law was present in the house and was actually accompany--ing her. We are, however, unable to agree, for, the evidence is that the son-in-law had come there to assist the deceased and his brothers in the tobacco and sugarcane cultivation and it is quite possible that he was going to the Behk to join the deceased and his brothers to go to the fields and in this event the mother would be coming back with the milk to the house. There is nothing unnatural in this.
35. Reliance has, in this connection, also been placed on the evidence of Nazar Muhammad (P. W. 3) that normally the mother went to the Behk with food for her sons and at that time she brought back the milk with her. In the present case, there is no evidence that she took any food nor that the deceased or the witnesses had taken any food. The medical evidence is to the effect that the deceased had taken no food before he died. The stomach only contained four ounces of water. The intestines contained chyme and faecal masses. Bladder was full of urine. This would suggest that no food was taken and the deceased had not even answered the call of nature in the morning.
36. Having carefully read the evidence of the eye-witnesses with the assistance of learned counsel we find it impossible to agree with him that the witnesses were totally unworthy of credit or that they had been guilty of making embellishments upon their earlier statements. There are no doubt some discrepancies as regards the details of the attack and as regards the particulars of the locations of the blows which were struck by each appellant on the victims respectively. But this was only to be expected, for, in such circumstances when the victims were being belaboured after a chase it was not possible for them to give the precise details.
37. The opinion of the trial Court that Ghulam Rasul was a completely unreliable witness, because, he had made no effort to save his brother, is unfortunately based on a misreading of the evidence.
38. This question was actually put to him during cross-examination and he stated that "while the accused were beating Sardara deceased I tried to rescue my brother". He was then confronted with his first information report in order to point out that he had not mentioned this fact there, but this is not a contradiction. It was not such an important fact that it should have been stated in the first information report.
39. We are also unable to agree with the learned counsel that there was any undue delay in the lodging of the first information report. Namazwela or Fajarwala, no doubt, is the morning prayer time which is normally sometime before sunrise and certainly before the sun's reddish glow can be seen on the eastern horizon. On the 8th of April 1962, as the Courts below had ascertained, the time of sunrise was about 5-45 a.m. So the morning prayer time could be up to 5-00 or 5-10 a.m. Even assuming that the incident occurred before this time and the injured arrived at the hospital, a mile away, a little before 7-30 a.m., it cannot be said that there was any inordinate delay. The time of the incident given by the witnesses is also supported by the medical evidence which gives the age of the injuries at about 3 hours. We cannot agree that a delay of three hours in bringing the victim to the hospital after the incident, which took place a mile away, is necessarily unusually long or suggests that there has been time to fabricate not only a false story but also false Injuries on one of the witnesses.
40. We cannot also agree that there was any undue delay fn the lodging of the first information report after the medical examination which, according to the trial Court itself, was concluded at about 8- 00 a.m. The report was lodged at 9-15 a.m. The witnesses were not giving evidence according to the watch. It was not possible, therefore, to expect them to be precise as to the time given by them.
41. Due allowances had, in such cases, to be made for possible errors but after making such allowances we think that there was no such great delay in the present case as to cast a suspicion over the entire prosecution story. There could be no reason for Ghulam Rasul to wait even after obtaining the medico-legal report. He must have gone to the Police Station without any undue delay. It is hardly likely that the medical report was given immediately after the medical examination or that the F. I. R. Was recorded immediately after the witness reached the Police Station.
42. So far as the question of motive is concerned there can be no doubt that it is of a weak nature, for, the deceased and his brother, Ghulam Rasul had actually not supported the pro--secution in the Committing Court in the case for the murder of Mst. Nawab Begum, but if the other evidence is reliable, the presence of motive is not necessary. In the present case, according to the view we have taken the eye-witness account, at any rate, so far as it was corroborated by the recoveries, did implicate two of the appellants ; namely. Ahmad Khan and Hayat Muhammad. There is no corroborative evidence so far as Haji Ahmad is concerned. He is an elderly person of 50 years and is the father of Ahmad Khan. In the present case, even though we accept the ocular testimony we think that out of abundant caution we should insist upon some corroboration of that testimony, particularly, since it comes from the mouths of very closely related witnesses, namely, brothers and mother. Since there is no corroboration in the case of Haji Ahmad we should give him the benefit of doubt. We, therefore, accept his appeal, set aside his convictions and sentences and acquit him of both the charges under sections 302/34 of the Pakistan Penal Code and 323/34 of the Pakistan Penal Code. He should be set at liberty forthwith if not required in any other case.
43. As for the other two, we are of the opinion that they have been rightly convicted and sentenced.
44. Their appeals are, accordingly, dismissed.