1. SHAFI-UR-REHMAN, J.-The four appellants along with three others were charged for the murder of Zafar Ahmad, for voluntary causing hurt to Habib with a sword and for causing simple injury to Muhammad Afzal with a dang on the 20th of March, 1972, in the area of village Fassipur, District Sialkot. The trial Court convicted all of them under section 148, P. P. C. And sentenced them to two years' R. I. Each. All of them were also convicted under sec--tion 302/149, P. P. C. And the appellant Sahib Masih was sentenced to death and the others to life imprisonment and a fine of Rs. 1000 each or in default to undergo one year's R. I. They were also convicted under sections 324! 149, P. P.
2. C. And 323/149, P. P. C. And for the former sentenced to one Year's R. I. And for the latter to six months' R.
1. The sentences were ordered to run concurrently.
3. On appeal and while deciding the reference with regard to the confirma--tion of the death sentence, the High Court by its Judgment dated 24-2-1976 confirmed the death sentence of Sahib Masih, set aside the conviction and sentence of one of the accused Babu Masih on all the; charges against him. Allah Ditta and Khushi Muhammad were acquitted the charges under sections 302,/148!149, P. P. C. And instead they were found guilty under sec--tions 323 and 324, P. P. C. And the sentences already undergone by them, were held to be sufficient. The conviction and sentences of the appellants were altered from .102!149, P. P. C. To one under section 302/34, P. P. C.
4. But their conviction and sentences under section 323!324,; 149;148, P. P. C. Were set aside.
5. Zafar Ahmad deceased was the younger brother of Muhammad Bashir P. W.
10. The latter was employed as a Clerk of an Advocate at Narowal. He had serious enmity with the appellants and their other associates. In April, 1970, he was allegedly injured by Sahib Mash appellant and Babu Masih acquitted accused along with others and his legs were fractured. Bashir had been appearing as witness in criminal cases against the appellants and their associates. He was so apprehensive of his enemies that he was keeping his residence at Narowal and only occasionally visited his original village Fassipur and whenever he thought of doing so he never undertook the journey alone but in company. On the 20th of March, 1972, which happened to be a Sunday, he planned a visit his village and sent a message to Muhammad Afzal P. W. 11, his cousin, to come to Narowal and accompany him to the village. Muhammad Afzal P. W. 11 came to Narowal for that purpose but certain pre-occupations of Muhammad Bashir P. W. 10 prevented him from undertaking the journey to the village. Muhammad Afzal P. W. 11 had in the ordinary course came to Narowal and had to return alone to the village but in Narowal he met Zafar Ahmad deceased, Habibullah P. W. 14 and Devia P.W. 15 all residents of the same village and they decided to go together. They boarded a bus at about 7 p. m. At Narowal and after about half an hour's journey, got down at Jassar and were walking together on foot to their village Fassipur when all of a sudden from inside the wheat crop emerged the four appellants and their three companions. Sahib Masih appellant was armed with a sword, Gamman with a darant, Rafiq with a sword, Gulda Ali with a hatchet, Babu Masih with a dang, Khushi Muhammad also with a dang and Allah Ditta with a sword. Sahib Masih gave a sword blow to Zafar who fell on the ground and thereafter more blows were given by the appellants and their companions. Muhammad Afzal and Habibullah who were not so close to their assailants and their associates managed to run away and while they were running away with a view to take refuge in the wheat crop and before they could do so, Khushi Muhammad gave a dang blow hitting Muhammad Afzal and Allah Ditta gave a sword blow to Habibullah hitting him on the hand. Devia P. W. 15 escaped injury because he was at some distance and had taken cover in the crops. Muhammad Afzal P. W. 11 went to the police station and lodged the report at 9-30 p. m. The accused persons were arrested soon after the occurrence except for Sahib Masih, appellant who was arrested on 17-4-1972 and Babu Masih who was declared a proclaimed offender, was later arrested on 31-10-1972. A sword was recovered from the house of Sahib Masih but it presented no incriminating feature.
6. Dr. Abdul Khaliq found 16 incised wounds, one being composite. On the dead body of Zaffer Ahmad.
7. Lady Doctor Nasreen A. Rana P. W. 12 examined Muhammad Afzal and found "one simple blunt weapon injury on the left side of upper back just below the scapula 3--- x 3/4' (a contusion)".
8. Habibullah was also examined by the same doctor and an incised wound 1' x 1/10" in the outer side of palm of right hand was found.
9. The appellants and their associates denied t1ieir participation in the occurrence and pleaded enmity as the reason for roping them together on a false charge.
10. The trial Court was alive to the requirement of the situation and observed that "the fate of this case hinges primarily on the ocular testimony of the prosecution witnesses". There was evidence on the record to show that Muhammad Afzal, the maker of the first information report had instead of going straight to the police station for lodging the report came to Muhammad Bashir the arch enemy of the appellants and taken him long to the police station and then lodged a report. The contention that the F. I. R. Was lodged after consultation with such a person, was dealt with by the trial Court hold--ing that on going through the record, I find that this contention has no force because the Sub-Inspector Nazir Ahmad Khan (P. W.) has not been asked if Muhammad Bashir influenced him or he provided the names' of the accused at the time of the lodging of F.
1. R. In any case neither has Muhammad Bashir (P. W.) himself been asked if he provided the names of the accused to the Sub-Inspector recording the F. I R. In any case, there is nothing to show on the record, that Sub --Inspector Nazir Ahmad Khan (P. W. 16) was in any manners influenced by Muhammad Bashir (P. W.) when the names of the accused persons were incorporated in the F. I. R.
11. Even assuming for the sake of the argument that Muhammad Bashir (P. W.) was present at the time of lodging of the F.
1. R. As conceded by Nazir Ahmad Khan, Sub Inspector (P. W. 16), it is no avail to the accused persons because there is nothing to show if Muhammad Bashir (P. W.) exerted any influence on the Sub-Inspector to incorporate the names of the accused."
12. Taking the F. I. R. To be prompt and the injury witness to have been present at the time of the occurrence and in a position to identify the assailants the trial Court found corroboration of their testimony in the medical evidence and the motive. The objection that no lathi injury was found on the dead body though the allegation was that even those of the accused persons who had dang had inflicted injuries, the trial Court held: The witnesses have categorically stated that all the accused gave injuries to the deceased but they have not been able to say the manner in which Babu Masih accused used the spiked dang whether by way of dang or by way of thrust blow. It is quite possible that the thrust blow given by Babu Masih might have submerged under the other injuries given to the deceased by other accused and was thus not mentioned as a thrust wound in the post-mortem examina--tion .
13. Placing reliance on such an evidence, the trial Court convicted all the seven accused persons in the manner already indicated.
14. With regard to the visibility, the rims of occurrence and the possibility of identification of the culprits the learned Judges in the High Court had come to the conclusion that :- "In this case the witnesses would be able to know their assailants while the sun was setting on the evening of 20th March, 1978, at about 6-30 p. m. As there would have remained sufficient light in the rural areas for considerable time even after the sun has gone down the horizon "
15. Muhammad Afzal and Habibullah were considered to be the eye-witnesses to the occurrence because they were injured and they could identify the culprits "even if they had their faces muffled specially when there is nothing on the record to show that the muffling was of a type which completely concealed the faces of the appellants and made it impossible for the witnesses to identify them. The very fact that the names of all the appellants find mention in the F. I. R. Which was recorded with prom--ptitude along with weapon of offence held by them, completely destroys the premises which the defence has tried to build from this one isolated line in the entire lengthy cross-examination of Habibullah P.W.14...".
16. The learned Judges of the High Court rejected the arguments raised by the learned counsel for the appellants and convicted and sentenced them in the manner already indicated.
17. There are certain features of the case which deserve particular reference and attention. Firstly, Muhammad Afzal P. W. 11 cousin of the deceased and Muhammad Bashir who was the object of enmity and attack positively, denied that before lodging the F. I. R. He had gone to Muhammad Bashir P. W. Or that Muhammad Bashir P. W. Had accompanied him to the police station at the time of the lodging of the F. I. R. Muhammad Bashir P. W. 10 admitted that Afzal P. W. Had come to him after making a report at the police station and that he had accompanied Afzal to the police station and there from the police to the place of occurrence. Nazir Ahmad Khan, Sub. Inspector who recorded the F. I. R. Admitted that Muhammad Bashir had accompanied Muhammad Afzal when Muhammad Afzal came to lodge the F.
1. R. Significantly, he also stated that Muhammad Bashir P.
18. W. Had asked him that his name should not be mentioned in the F. I. R. As one of these who accompanied Muhammad Afzal. Nevertheless, this police officer recorded his name in the police diary and this he did because he was apprehensive that there may be some motive behind this request". There would not have appeared something very unusual in Muhammad Afzal's coming to the town and contacting Bashir the more knowledgeable person and their going together to the police station for lodging the report but this effort on the part of Bashir to be a companion and yet to attempt her complete attachment would make one suspicious. The explanation attempted by the trial Court and as reproduced above would hardly appear to be a satisfactory one for the consultation and promptings if at all they had to take place, would have taken place on way to the police station and before reaching the police station and not inside the police station.
19. The other aspect of the case, which required understanding and explana--tion, was that Muhammad Bashir had to be taken to the village because in view of the large number of enemies and the nature of enmity, he could not dare to go alone. He had asked the assistance of only one person, his cousin Muhammad Afzal who had made special journey for it. It was per chance that others also met him and they all decided to return together without Muhammad Bashir. The nature of enmity, the extent of threat and type of precaution taken by Muhammad Bashir, required that the person whose protection he was seeking was not himself completely unprotected. Whether Muhammad Afzal was to act as an escort or not decisive. The nature of threat, its magnitude and gravity determined the nature of the precaution to be taken and the precautions would have included arming oneself with a view to effectively defend. All of them could not be in such an undefended state as they claimed to have been at the time of occurrence.
20. The injury on the person of the witnesses is ordinarily the hallmark of their presence provided it is received in the same occurrence. For determining whether the injuries were caused in the same occurrence, one has not only to look to the nature of the injuries but also to the circumstances in which it came to be caused. The injuries on the person of the deceased give the impression that the assailants had time and opportunity to inflict as many injuries as they liked uninterrupted or unchallenged from any quarter. On the other hand, the injuries on the person of the two witnesses who claim to have been present with the deceased are of a different character. The doctor who examined them has stated that they could be self-inflicted. They are not the injuries which would be caused by enemies fully armed lying in ambush and attacking by surprise overtaking the victims. The other companion Devia could also not be left unharmed in the occurrence. Keeping in view the nature of the injuries and the enemies who are allegedly said to have caused them it is rather doubtful whether they can be said to have been received in the same occurrence. As regards the facility of identification and the time of occurrence, the evidence on the record shows that it took place at 7-30 p.m. When the sunset used to take place at 6-16 p. m. After an hour and a quarter of sunset even in a rural area, the sunlight will not be available in the form of twilight to remove the darkness of the night. Muhammad Afzal is the only witness who has stated that the culprits had muffled their faces. There is absolutely no reason why this witness should make a concessional, statement being that what it is taken to be. The muffling of the faces would itself establish the anxiety of the culprits to hide their identity as best as they could or to make their identification difficult. In such a situation while the witnesses were anxious to run away from the spot with a view to save their own skin, they could not be watchful or witness as to what happened while they were running away in the darkness.
21. The medical evidence if at all detracts from the consistency of the prosecution case, the prosecution case was that the deceased had been given injuries by diverse weapons like sword, hatchet, darant, dang and dang having a spike. There was no injury found on the dead body, which could directly be attributed either to a dang or a dang with a spike. The trial Court in an effort to reconcile this variance in the medical evidence, carne out with an explanation of its own which got no support from the record namely that the dang may have been used for causing thrust blow.
22. In the case of interested witnesses, as all the three eye-witnesses in this case happened to be, one expects that their statements ring true or are not intrinsically unsound or inconsistent. When that test is satisfied, then in the case of ordinary interested witnesses, independent corroboration of some sort is looked for and ensured. The motive by itself in a case like this, serves as a double- edged weapon. It could prompt false implication. It could as well prompt revenge in the form of aggression. In determining the intrinsic worth consistency of the statement of eye-witnesses, the mere presence of motive is not sufficient. We find that there are certain features which have been discussed which reduce the intrinsic value of the statements of these witnesses and make them suspicious and instead of finding corroboration, the medical evidence somewhat contradicts the prosecution case. What has intrigued us is that the learned Judges in the High Court had come to the conclusion that there was an embush by at least those of the accused who had armed them-- selves with deadly weapons and their motive was to attack and kill Muhammad Bashir, and the learned Judges also observed that if the witnesses "would not have been fleet-footed, they would have suffered the same fate at the hands of their assailants as was meted out to Zafar Ahmad deceased", and yet held that section 149, P. P. C. Was not applicable nor 148, P.P.C. And that the case of the three other companions of the appellants, stood on a different footing than that of the appellants.
23. We find that in accord with the principles well-recognized for the safe administration of criminal justice, the testimony of the interested witnesses in this case remains uncorroborated and is not found intrinsically sound enough to be sufficient to warrant conviction and sentences of the appellants. Their appeal is, therefore, accepted and their convictions and sentences are set aside.
24. They shall be released forthwith unless their detention is required in some other case.