1. MUHAMMAD HALEEM, ACTG. C. J.-These appeals, by special leave, arise from the judgments of the Lahore High Court, Lahore, both dated 13th of April, 1976, by which Criminal Appeals Nos. 491 and 492 of 1975 were dismissed. Criminal Appeal No. 178 of 1977 is against the convictions of Abdur Rahman; Ghulam Muhammad and Ghazi for the murder of Sher Zaman and attempted murder of Gul Muhammad while Criminal Appeal No. 179 of 1977. Is against the conviction of Ghulam Muhammad under section 13 of the Arms Ordinance, 1965: According to the prosecution, Alam Khan alongwith Sher Zaman, Gul Muhammad and Muhammad Zaman got down from the bus for proceeding towards their Dera, on 8-9-1972 at 5 p.m. And as they came near the tube-well of Rana Abdur Rahim, within the limits of Mauza Chorwala, the appellants Sher Muhammad, Sher Khan and Afzal, all armed with shot-guns emerged from the bushes and from amongst them Sher Khan gave a Lalkara to Sher Zaman and moments later, fired a shot which proved ineffective followed by Ghulam Muhammad who fired the second shot which proved effective and the deceased fell to the ground. Ghazi fired the third shot which struck Gul Muhammad on his head and he also fell down. Thereafter, all the others fired simultaneously at the deceased and finally Abdur Rahman went near him and fired the last shot in the region of his right ear. Alam Khan and Muhammad Zaman beseached them not to do any further harm upon which they decamped from there. Alam Khan next proceeded to Police Station, Musa Khel, District Mianwali where he lodged the F. I. R. At 8 p.m.
2. The reason for this murderous attack was that three years before the present incident, Pehalwan, the father of Abdur Rehman, was murdered by Jahan Khan and Gul Khan, uncles of the deceased.
3. Abbas and Jilani, who were tried and sentenced to imprisonment for life.
4. From the spot blood-stained earth was recovered. Ghulam Muhammad was arrested on 20th of September, 1972, and he led to the production of an unlicensed gun and 14 cartridges from his house on 4th of October, 1971, for which he was tried separately and convicted as afore stated.
5. There were six fire-arm injuries on the deceased out of which three were exit wounds. Injuries 3 and 4 were also stated to be relatable to injuries 1 and 2. Further, there were 6 to 7 ounces of semi- digested food. On Gul Muhammad there was an entry . Wound and an exit would and both were simple in nature.
6. At the trial, the prosecution examined Alam Khan; P. W. 10, and Gul Muhammad P. W. 11, to furnish ocular testimony. Muhammad Zaman who was also an eye-witness, was abandoned. The trial Court accepted the presence of Gul Muhammad, who was an injured witness. As for the presence of Alam Khan who had given the reason that he had accompanied the deceased to sell four hens at the cattle fair at Wan Bhachran, the trial Court believed it for the further fact that being an elder, he would have accompanied the deceased to help him in the purchase of a bullock. The trial Court was next impressed by the promptness with which the F. I. R. Was lodged which could not have been possible if he bad not been with the deceased on his return journey.
7. Adverting to the enmity imputed on account of the murder of Pehalwan, the trial Court held that as those responsible for his murder were convicted the complainant party would have had no reason to falsely implicate the accused. The trial Court further held that qua Ghulam Muhammad. Gul Muhammad was not impartial on account of his having abducted. Mst. Pathani who was related to this witness, but this factor could not have prompted him to substitute his name for the real assailant. Further, while convicting Sher Muhammad, the trial Court held that the testimony of these two eye--witnesses could not be "safely accepted as a safe basis for his conviction"; and in observing so the trial Court relied firstly on the circumstance that no positive role was imputed except for his firing an ineffective shot from a close range at the deceased which could not have gone astray ; and secondly, because of the enmity resulting from a murderous attack on Fateh Khan a relative of Ghulam Jilani, one of the assailants of Pehalwan. Lastly, the trial Court held that the abscondence of the others corroborated the ocular testimony in the context of the motive which was satisfactorily proved. The trial Court, accordingly, recorded convictions and sentences against others under sections 148, 302 and 307 read with section 149, P. P. C. Abdur Rehman and Ghulam Muhammad were sentenced to death and also to pay a fine of Rs. 1,000 each on the count of murder. Sher Khan, Afzal and Ghazi were each sentenced to life imprisonment and to pay a fine of Rs. 500. Ghazi was sentenced to 7 years' R. I. On the count of attempted murder and further to pay a fine of Rs. 1,003 while the others on this count were sentenced to suffer R. I. For 3 years and also to pay a fine of Rs. 200 each. All of them were further sentenced to suffer R.
1. For one year and to pay a fine of Rs. 200 each or in default to suffer simple imprisonment for two months on the count under section 148, P. P. C.
8. On appeal and reference, the High Court acquitted Sher Khan son of Sultan and Afzal and altered the convictions of Abdur Rehman and Ghulam Muhammad from section 302 read with section 149, P. P. C. To section 302 read with section 34, P. P. C. And maintained their death sentences and the fine imposed. Ghazi was acquitted on the murder count but his con--viction under section 307 was maintained. He was further ordered to undergo R.
1. For 6 months in case of default in the payment of fine. While entertaining doubt in regard to the acquitted accused Sher Khan and Afzal, the High Court held :- ". . . . However, we cannot exclude the possibility of adding few more persons with the actual culprits as due to long-standing enmity, the tendency of this sort always comes into display. From the point of view of safe dispensation of criminal justice and as a matter of abundant caution, we can accept the contention of the defence counsel that possibility of Afzal and Sher Khan, appellants, like Sher Muhammad co-accused, who has been acquitted by the trial Court, being roped in, cannot be excluded. These persons have not been attributed any specific part and the nature of allegations against them is vague and general."
9. The High Court while maintaining the convictions of Abdur Rehman, Ghulam Muhammad and Ghazi, as afore stated, held that there was no reason to accept that the incident took place in the dark hours of the night so as to make the identification doubtful ; and that as the incident had taken place, as stated by the prosecution witnesses, in the day light, there was no possibility of any mistaken identity or the substitution of the appellants for the real culprits. It was further held that the prompt registration of the F. I. R. And the age of the injuries qua the time stated further strengthened the belief as to the happening of the incident during day light and the presence of Alam Khan and the injured witness. The High Court also rejected the defence submission that the injury on Gut Muhammad was self-inflicted. However, in evaluating the evidence of the two eye- witnesses, the High Court was conscious of the enmity towards the appellants and in this background had proceeded to examine their testimony with "abundant caution" andcam; to the conclusion that though they were inimical and interested witnesses, yet they were present and had spoken the truth.
10. Leave to appeal was granted to consider as to whether implicit reliance could be placed on the ocular testimony of two witnesses, qua the guilt of the appellants in the context of the false implication of three persons one of whom was acquitted by the trial Court and the other two by the High Court without independent corroboration.
11. Consequent upon the conclusion of the Courts below that Sher Muhammad Sher Khan son of Sultan and Afzal were falsely implicated, the foundation for deliberation to involve innocent persons was laid in the F.
1. R. The reason for this is not far to seek as the Courts below were not able to reconcile the three effective shots fired at the deceased and Gut Muhammad with the number of the participants and, therefore, they entertained a serious doubt as because of the long standing enmity between the parties, the possibility of adding few names could not be excluded.
12. The High Court, accordingly, discounted their presence while convicting Abdur Rehman and Ghulam Muhammad for murder by reason of common intention. However, the conclusion seriously impaired the veracity of the eye-witnesses not only as regards the number of the participants but also as to the other details of the occurrence. The High Court nonetheless accepted their evidence without any corroboration by relying on the motive, the positive role attributed to the appellants and the evidence being consistent with the presence of the fire-arm injuries on the deceased and Gut Muhammad. The High Court, in its appraisal, also held these witnesses to be truthful which conclusion, in itself, was contradictory as the Courts disbelieved their ipse dixit as to the participation of those acquitted. They had, therefore, deliberately, perjured in implicating them.
13. The reliance on motive was illusory as the Courts below held it to reason for the false implication of those acquitted. How can then the benefit of if be withheld qua the appellants as the implication of all the' persons by the eye-witnesses was because of their relationship with each other.
14. Accordingly, a room for doubt is left in the absence of any yardstick to judge motivation which in any case was speculative for the further fact that there were other enemies of the deceased or the prosecution witnesses. Further, as to the enmities as brought out in the evidence, the deceased had abducted the sister of Suleman who was still kept in confinement and it was, therefore, that he was made the subject of an attack by Suleman. Sher Muhammad, Wasawa Kundi and Sher Tarukhel, who were tried and convicted but acquitted on appeal by the High Court. Again, Mst.
15. Pathani, who is a petrer of Alam Khan P. W. 10 and Gut Muhammad, P. W. 11, was abducted by Ghulam Muhammad, one of the appellants, and this provided a reason for these witnesses, to be inimical towards him. Next, Fateh Khan an uncle of Alam Khan was prosecuted for the murder of one Zaman who had abducted Mst. Dolat Khatoon, a petrer of Fateh Khan which provided a reason for their families to be inimical towards each other. Gut Muhammad had accepted his enmity with Ghulam Muhammad but Alam Khan denied the deceased's enmity with Suleman as according to him they had patched. Up their differences which of course could not be accepted as Mst. Pathani had not been retrieved.
16. While conceding that other enmities also existed, the High Court held that it could not be a case of substitution in the wake of the occurrence having taken place at 4 or 5 pm. In the background of deliberation, this finding is presumptuous as the prosecution failed to establish unequivocally that the incident had taken place during daylight. The prosecution witnesses are at variance in regard to the actual time of the occurrence which is also not consistent with the other material on record.
17. In this connection I would refer to what Alam Khan has stated in his cross-examination :- "I have lodged the F. I. R. Little before Maghrib prayers. Only one F. C. Had accompanied me to Shadia with a copy of the F. I. R. I cannot say as to how long after the occurrence the sun had set in.
18. I cannot give the exact time which I had taken in reaching the police station from the spot. I cannot' describe this time even in Pehrs. I was not given any copy of the F. I. R. For my personal use. We had reached. Shadia by a bus, a little after call for Maghrib prayers was made. Shadia may be at a distance of 4/5 miles from Wan Bhacbran."
19. From the above only one fact is assertive, and that is, that the F. I. R. Was lodged a little before Maghrib prayers. In this connection the version of Gul Muhammad was that the sun was still one or two reeds high on the Western horizon when the occurrence took place, put before the Inquiry Magistrate, he conceded that the occurrence took place when the sun was setting. In the face of this concession and the further vague statement of Alam Khan as to the time taken in reaching the police station and the interval of time between the occurrence and the setting of the sun it becomes difficult to accept his assertion that he could have reached the police station before sunset time after covering a distance of 13 miles from the spot and then to have reached Shadia just before the call of Maghrib prayers for delivering the copy of the F. I. R. To the Investigating Officer who was contacted at the Bus Stand. The presence of the Investigating Officer at the Bus Stand was also not said to be for any purpose. Therefore, it becomes difficult to accept as to why the copy of the F. I. R. Was sent to him at Shadia. All that was stated was that he was on patrol duty and if this was so then his presence at Shadia could not be known to any one at Musakhat Police Station. In that case he would have had to be searched out. This part of the prosecution story appears to be doubtful and moreso if the testimony of Muhammad Azim, F. C: which stands in conflict with it, is taken into consideration. According to his version he accompanied the Sub- Inspector from the Police Station at 8 or 9 p.m. And came to the spot alongwith the complainant at 10 p. m. This account discounts the journey of the complainant alongwith the Constable to Shadia for handing over the copy of the F. I. R. To the Investigating Officer. It was, in my opinion, introduced to provide time for deliberation which has come on the surface. If all that is stated. By Alam Khan is appraised in its true perspective, then it is difficult to explain the movement of Alam Khan from the spot to Shadia via the police station and back to the spot in the context of his estimation of the time at which the journey was undertaken and completed. It, therefore, becomes difficult to conclude, in the absence of any clear cut evidence, as to whether the occurrence had taken place at 4/5 p.m. Or later in the dark hours of the evening.
20. The lodging of the F. I. R. At 8 p.m. Also becomes suspicious. There are other factors which support this conclusion. According to the medical expert, the deceased had taken meals 3/4 hours before the occurrence as he found 6/7 ounces of semi-digested food in his stomach, Alam Khan has said that the deceased had consumed the morning meal at Wan Bhachran which does not stand to reason as this meal should have been taken before he had left for the cattle fair. Further, it does not appeal to reason as to why be delayed taking it until 2/3 p.m. It seems to me to be more consistent with meal having been taken by the deceased at his Dera at 2/3 p.m. And not at the cattle fair.
21. Next it was asserted that the deceased had taken Rs. 500 for purchasing a bullock at the cattle fair, but this amount was not found on his person. Alam Khan had given his explanation that the deceased had given this money to him as he was his elder. This is nothing but an attempt to explain the absence of money on his person which otherwise could have created a doubt as to the purpose of his visit to the cattle fair. The deceased was also found without his shoes and turban, and if at all be bad gone to the cattle fair, be would not have gone barefooted. Even otherwise he would not have been without shoes but the significance of it was not taken note of by the Court below. To me it strikes out that, in a bid to escape, he had discarded his shoes in haste at some spot and his turban must have, also fallen from his head. The injuries on his back show that he was shot at while running. Further, as to the appellant Ghazi having fired a shot at Gul Muhammad from a distance of 30 Karams, it is not believ--able that only one pellet would have struck him in the context of the spreading of the pellets from such a distance. The probability is that he was hit by a stray pellet without any aim having been taken at him.
22. All this shows that the journey to Wan Bhachran and back was doubtful and that the incident had not taken place in the manner suggested b these two witnesses. Therefore, the positive role attributed to the appellant was on no higher footing for if they could perjure on other important aspects of the case, they could equally impute false parts to the appellants. Abdur Rahman and Ghulam Muhammad. The High Court erroneously held the witnesses to be truthful while holding them guilty in total disregard of this consideration. Even in regard to their roles, the witnesses are no consistent as Gul Muhammad in his cross-examination admitted that it was a Ghulam Muhammad who bad fired the first effective shot followed by the second shot from a distance of 1 or 2 Karams which excluded the positive role of Abdur Rehman. This is a case which eminently requires, independent corroboration as to the participation of the three appellants in the wake of perjured evidence which the Courts below did not consider necessary in the interest of sole dispensation of justice. While holding them guilty, the High Court applied different standards which was not a correct approach for the decision of the case. Accordingly, the appellants are entitled to be acquitted.
23. As to the recovery of the fire-arm at the behest of Ghulam Muhammad it is difficult to accept this evidence after a long delay of 14 days in the background of the evidence as it is. He is entitled to the benefit of doubt in this case as well.
24. Accordingly, while allowing both the appeals. I would acquit the appellants and set aside the impugned orders. They shall be set at liberty forth-with unless required in some other case.