1. ' ZAFFAR HUSSAIN MIRZA, J.-Leave was granted in this case to consider if the order of acquittal of the respondents passed by the Lahore High Court, Lahore, is based upon safe principles of dispensation of criminal justice.
2. ' The respondents herein, namely, Abdul Hamid alias Majid Muhammad Ramzan, Gulab Khan, Shafaat Hussain, Altaf Hussain, Muhammad Banaras, Abdul Aziz and Zahoor Ahmad were tried by the Additional Sessions Judge, Rawalpindi, on charges under sections 148, 302 and 307 read with section 149, Pakistan Penal Code, on the allegation that they along with acquitted accused Mansabdar formed an lawful assembly and in prosecution of the common object of the said assembly, they caused the death of Bashir, Munir and Muhammad Razaq, made murderous assault on Mehrban Khan (P. W. 13) and Jamshed Akhtar (P. W. 14), and committed the offence of rioting. Besides acquitting co-accused Mansabdar as earlier stated, the learned trial Judge also acquitted all the said respondents of the charge of murder in respect of deceased Muhammad Razaq.
3. ' The learned Additional Sessions Judge, however, convicted the first three respondents under section 302, P. P. C. For the murders of Bashir and Munir and sentenced them to death and a fine of Rs, 1,000. He also convicted respondents 4 to 6 for the murder of Bashir and sentenced them to life imprisonment. He convicted Abdul Aziz (Respondent No, 7), under section 325, P. P. C. For causing grievous hurt to Mehrban (P. W. 13) and sentenced him to two years' rigorous imprisonment. He further convicted Zahoor Ahmad (respondent No, 8) under section 323, P. P. C. Sentencing him to one year's R. I. For having caused injuries to Jamshed (P. W. 14).
4. ' From the judgment of the learned Additional Sessions Judge two appeals were preferred by the respondents, before the Lahore High Court as also the reference under section 374 of the Code of Criminal Procedure for confirmation of the sentences of death imposed upon Abdul Hamid alias Majid, Gulab Khan and Muhammad Ramzan was made by the trial Court. A Division Bench of the High Court by its impugned judgment, dated 25-2-1979 accepted the appeals and set aside the convictions and sentences of the respondents, acquitting them of all the charges on which they were tried.
5. ' The occurrence in this case took place on 28-10-1973 at about 12-30 p. m., which was the day of Eid-ul-Fitr. The place of occurrence is said to be near the gate of Ilahi Cotton Mills situated in the area of village Jorian, two miles away from the Police Station, Mandra.
6. ' The case of the prosecution is that on the day of occurrence at about noon-time, Mehrban Khan (P. W. 13) and Jamshed Akhtar (P. W. 14) arrived at the gate of Ilahi Cotton Mills in order to catch a bus for Mandra. At about 12-30 p. m., they were joined at the gate by Bashir and Munir deceased.
7. Suddenly, all the respondents alongwith Mansabdar appeared at the scene. Abdul Hamid eas Majid, Gulab Khan and Muhammad Ramzan were armed with '303 bore rifles, Abdul Aziz, Altaf, Banaras, Shafaat and Zahoor were having hatchets, whereas Mansabdar was carrying a lathi with him. The assault opened with a lalkara by Mansabdar to the effect that this was a good opportunity to finish Bashir deceased. Upon this Abdul Hamid alias Majid and Gulab Khan fired .At him with their rifles. Bashir was hit on the chest and fell to the ground. Muhammad Ramzan fired at Munir deceased who was hit in the back and also fell down. At this stage, Mehrban Khan (P. W. 13) and Jamshed Akhtar (P. W. 14) tried to intervene but they were given hatchet blows by Abdul Aziz and Zahoor Ahmad respondents. While Bashir Ahmad was lying on the ground, he was further given hatchet blows by Shafaat, Banaras and Altaf respondents. Razaq deceased was present nearby. He is said to have begged the assailants not to attack Bashir deceased whereupon he was fired at by Gulab Khati respondent. He was also hit. In the meantime, Subedar Mehr Ali (P. W. 16) father of Bashir deceased, on hearing the gunshots came running out of his house to the scene of occurrence being armed with a shot-gun. On reaching the scene, he saw his son Bashir and son- in-law Munir lying on the ground in injured condition and being overwhelmed with emotional shock he callapsed at the spot. His gun was picked by Muhammad Ramzan respondent. Munir and Razaq deceased died at the spot while Bashir deceased was taken by Subedar Mehr Ali (P. W. 16) to a hospital in Rawalpindi in a car which was passing by the scene of occurrence at the time. Bashir died in the hospital a few hours later. Shortly after the occurrence, Mehrban Khan (P. W. 13) went to the Police Station, Mandra, at a distance of two miles from his village reaching there at 1-45 p. m.
8. And lodged his F. I. R. Which was recorded by Sub-Inspector Arshad Hussain. During the investigation, no crime empty was recovered from the spot. A rifle was, however, recovered from Gulab and a gun was produced by Ramzan which admittedly belonged to Mehr Ali (P. W. 16). The rifle recovered from Gulab respondent, who is said to be a person of very advanced age of 91 years, admittedly a licensed weapon.
9. ' At the trial, ocular testimony was furnished by Mehrban (P. W. 13), who is married to the sister of Bashir deceased, Jamshed Akhtar (P. W. 14) who is also related to deceased, Muhammad Iqbal (P.
10. W. 15), whose paternal aunt is the sister of Mehrban as well as the paternal aunt of Bashir deceased, and Mehr All (P. W. 16), who is the father of Bashir deceased and father-in-law of Munir deceased.
11. ' The motive for the offence as disclosed in the prosecution evidence was that about two or two and a half months prior to the occurrence, Bashir deceased bad stabbed respondent Shafaat and a case under section 307, P. P. C. Relating to this incident was pending against him. Additionally, it was alleged that 2 or 3 days before the occurrence, Bashir deceased had passed along the well of Mansabdar acquitted accused who had objected to his passing thereby on the ground that the women-folk of his family came to the well for fetching water. This had resulted in an altercation between the two.
12. ' The medical evidence brought on record through Doctor Abdul Majid (P. W. 1), Medical Officer, District Headquarters Hospital, Rawalpindi, disclosed the following injuries found by him on the persons of the deceased and the injured witnesses :-
(i) Muhammad Bashir, deceased:
(1) A punctured wound on the left side of the chest front, at 9 O'clock to the right nipple and 2" from it, 1/3" x 1/3 corresponding hole over the shirt and bunian was present.
(2) A punctured wound on the left chest front at 7 O'clock to the nipple and 3' from it ; corresponding hole over' the shirt and bunian was present.
(3) A punctured wound over the right back 2' x 2"; corresponding hole over the shirt was present.
(4) A contused wound right side forehead 1 r X f x bone deep transverse in direction and near the hairy margin.
(5) A contused wound on the left side forehead, oblique, near hairy line 1" x i" x f".
(6) A contused wound right side forehead oblique 1" x f" x r.
(7) A contused wound on the head back 1" xi' .
(8) An incised wound right side back 3' X x 1".
13. The Doctor also secured a bullet from the body of Bashir lying in the left cavity.
(ii) Munir Ahmad deceased:
(1) An inlet wound f xr on the left chest back 1f' from the middle line on the upper part.
(2) An outlet wound on the right chest front adjacent to mid line 1' x 1', 3" from the right nipple and at 3 O'clock to it ; corresponding hole over the shirt and bunian was present.
(iii) Muhammad Razaq deceased.
(1) An inlet wound on the left shoulder blade lower part 1/3' x 1/3".
(2) An ' inlet wound right shoulder back 1/3" x 1/3' x injury No, 3, margins were inverted.
(3) An outlet wound right shoulder back 2" from injury No, 2 and r x injury No, 2, margins were averted. A pellet was recovered from right chest front under the skin higher than injury No. 1.
(iv) Jamshed Akhtar, injured (P. W. 14): ' A contused wound on the (sic) side head 4" above the right ear, lr x I X bone deep.
14. ' Doctor Abdur Rahim, Medical Officer, who had examined Mehrban Khan (P. W. 13) was not available at the time of the trial. But his report (Exh. P. F.) was proved in the evidence according to which he had found the following injury on the person of Mehrban "One incised wound 3' x f" X bone deep oblique in direction on left side of top of skin. The shell bone underneath wound is cut through and through. The wound is bleeding."
15. ' All the respondents had in their 342, Cr. P. C. Statements denied the charges and pleaded their innocence asserting false involvement out of enmity, except Muhammad Ramzan respondent, who gave his version of the incident, which may be reproduced in his own words :- "The fact is that Mehrban, Bashir, Muneer and Jamshed armed with the dbbl. Gun belonging to Sub.
16. Mehar Ali father of Bashir deceased. Bashir fired at me and Razzaq deceased which hit Razzaq and killed him. Before Bashir could fire a second shot I fired shots at him and gun fell down. It was picked up by Muneer but before he could turn round and fire at me I fired a shot at him. Before Meharban could pick up the gun I ran picked up the said gun and in the process Meharban hit me and caused the injury. I produced this gun at the police station before the Station House Officer which was sent to the Ballistic Expert."
17. The case against the respondents before the trial Court rested primarily upon ocular testimony, as already observed, furnished by Mehrban (P. W. 13), Jamshed Akhtar (P. W. 14) and Muhammad Iqbal (P. W. 15). Out of them, the first two had sustained injuries in the transaction. Subedar Mehr Ali (P. W. 16), according to his own evidence at the-trial came to the scene of offence after the main incident when Bashir and Munir deceased had already received the fatal injuries and, therefore, he is not an eye-witness. There is no circumstantial evidence against the respondents in view of the fact that no empties were secured and the rifle secured from respondent Gulab was a licensed one. The case, therefore, turns on the credibility and the value of the ocular testimony of the three eye-witnesses above-mentioned.
18. ' Now the learned trial Judge adopted an approach to the question of the appraisal of evidence which should have been avoided, inasmuch as he chose to first take up the defence version disclosed by respondent Muhammad Ramzan in bis statement for consideration. On examining this version and assessing its value primarily with reference to the medical evidence on record, he came to the conclusion that the defence version was wholly untenable. The learned Judge further disbelieved the statement of respondent Muhammad Ramzan on the ground that although there was admitted enmity existing between the parties, there was no reason for Bashir and Munir deceased and his relatives to kill Razaq deceased against whom they had no animosity.
19. ' The learned trial Judge took the view that although Mehrban (P. W. 13) and Jamshed Akhtar (P. W.
20. 14) were close relations of the deceased, this circumstance alone was not sufficient to reject their testimony which had withstood the test of a searching cross-examination and no discrepancies had occurred in their evidence. He held that Muhammad Iqbal (P. W. 15) being an independent witness, his testimony was implicitly reliable. Which fully corroborated the testimony of Mehrban and Jamshed Akhtar (P. Ws.) in all material particulars. Besides his name was disclosed in the F. I. R.
21. Which was promptly lodged. The learned trial Judge also took into consideration the admissions made by respondent Muhammad Ramzan that he inflicted the injuries on Bashir and Munir deceased. But his plea of self defence was found to be untenable. From the nature of injuries appearing in the medical evidence, the learned Judge concluded that respondent Ramzan was assisted by at least two other persons, one armed with a sharp-edged weapon and the other with a blunt weapon. The learned counsel for the respondent placed much emphasis on an observation in the judgment of the trial Court, which reads as follows "There is however one instance which indeed casts a serious doubt on the prosecution story relating to the last scene of the occurrence i. e. The circumstances in which Razzaq was done to death because it is the defence version that he was done to death by the complainant party by causing him a fire shot injury with a gun and this view finds full support from the medical evidence which shows that on the internal examination Dr. Abdul Majid took out a pellet from the right side of his chest which goes to establish that Razzaq deceased was done to death with a gun and not with a rifle as alleged by the prosecution. This difficulty may however be explained away, if it is believed that there are double barrel guns with a rifle barrel. The prosecution produced in evidence a similar weapon before me and my personal experience shows that such weapons do exist."
22. ' In this view of the matter, the learned Judge came to the conclusion that the respondents had no reason to kill Abdul Razaq whose death was a mystery which could not be resolved from the prosecution evidence. He, therefore, discarded the evidence relating to the death of Abdul Razaq as doubtful but nonetheless found ample evidence against the respondents that they had deliberately caused the death of Bashir and Munir deceased and injured the P. Ws. He, however, found no evidence to extend the application of section 149, P. P. C. To respondent Aziz, who caused simple injuries to Mehrban (P. W. 13) and Zahoor, who caused simple injury to Jamshed Akhtar (P.
23. W. 14). No injuries were, however, caused by these respondents to any of the deceased, which fact, in the view of the learned Judge excluded any possibility of these respondents sharing the common intention or the common object of killing the deceased.
24. ' In substance the convictions of the respondents were based on the ocular testimony of the three eye-witnesses supported by the medical evidence and the admission of respondent Muhammad Ramzan.
25. ' The learned Judges of the High Court, however, took a different view of the evidence produced by the prosecution. In their opinion, Muhammad Iqbal (P. W. 15), who stated that he witnessed the occurrence while he was sitting at a hotel at a distance of 300/400 yards from the gate of the Mill, was held to be a chance witness. In view of the close relationship of the other eye-witnesses with the deceased and the admitted fact of strained relations between the parties, the learned Judges thought that the ocular account required to be closely scrutinised. In this context, much importance was given to the fact that two of the alleged assailants, namely, Mansabdar a man of 80 years and Gulab Khan, a man of 90 years of age, were also involved as active participants in the occurrence which was considered highly improbable. The version of the prosecution regarding the manner in which Razaq deceased received the fatal shot appeared doubtful and unbelievable, as it was stated by the witnesses that Gulab Khan had fired this shot with a rifle, whereas in the post- mortem examination a pellet was recovered from the body of the deceased indicating that the shot was fired with a shot-gun. The evidence produced by the prosecutton, that there are weapons which are a combination of a shot-gun as well as of a rifle to be the weapon used by Gulab Khan was disbelieved by the learned Judges. Particular notice was taken of the fact that the father of Razaq deceased was a witness for the prosecution in the case registered against Bashir deceased and that Sheraz brother of Razaq deceased had gone to the Police Station soon after the occurrence and had accused the complainant party of causing his death. Subsequently, he filed a private complaint with regard to the death of his brother against, inter alia, Mehrban Khan (P. W.
26. 13), Subedar Mehr Ail (P. W. 16) and Jamshed Akhtar (P. W. 14). All these facts combined with the admission of the prosecution witnesses that Subedar Mehr Ali (P. W. 16) had brought a shot-gun, according to the learned Judges, made it highly probable that this very gun had been employed to kill Razaq deceased. However, no explanation was given by the prosecution about the circumstances under which this gun had been fired. These circumstanees on the record prompted the learned Judges to hold that the eye-witnesses were withholding the whole truth and, therefore, the learned Judges rejected their evidence on the additional consideration that a large number of persons of the same family had been implicated. According to the learned Judges this type of evidence could not be relied upon safely without independent corroboration with respect to each of the respondents for convicting them on a capital charge.
27. ' Since there was a corroboration in the case of Muhammad Ramzan respondent, who admittedly had been injured during the occurrence, his case was dealt with specifically. In this behalf, it was stated that Muhammad Ramzan had presented himself alongwith the brother of Razaq deceased at the Police Station with an alternate version shortly after the complainant party reached there.
28. But the Investigation Officer did not get him medically examined, nor was he immediately put under arrest. Since, therefore, the eye-witnesses had not come out with the whole truth, the learned Judges thought it unsafe to uphold the conviction and sentence of Muhammad Ramzan respondent as well.
29. ' We have examined the entire evidence on record with the assistance of the learned counsel and having given careful consideration to it, I am unable to hold that the High Court's appraisal of evidence was in any way fallacious.
30. ' It has been urged in support of this appeal, that there was no motive for the complainant party to kill Razaq deceased. Learned counsel for the appellant endeavoured to show that the finding of the trial Court exonerating the respondents of the murder of Razaq was not well-founded. In this behalf he argued that the size of the injury found on the body of Razaq deceased, did not appear to be the result of an ordinary pellet fired from a shot-gun, that if a gun had been fired from close quarters, the resultant damage would have been much more than single wound. Additionally, it was argued that there can be no doubt about the presence of the injured eye-witnesses at the scene of occurrence, and that this was further strengthened by the admission of one of the accused, namely. Ramzan, who has admitted the occurrence and presence of the said eye- witnesses, which, in the submission of the counsel, excluded the possibility of substitution of the real assailants. The judgment of the High Court was criticized on two counts :- Firstly, it was argued that old age of respondent Gulab without evidence of incapacity was not a relevant consideration for judging his culpability ; and Secondly, that the High Court had not dealt with the case in regard to the murder of Bashir and Munir deceased.
31. A careful reading of the evidence of eye-witnesses in the context of other circumstances on record shows certain inherent infirmities in the account of B the occurrence deposed to by these witnesses. The injured eye-witnesses have attributed the injuries suffered by them to their attempt to intervene in order to save Bashir. However, according to their account Razaq deceased came on the scene when the entire occurrence had taken place, but nevertheless he was fired upon and shot dead by Gulab Khan respondent, because he was asking the assailants not to kill Bashir. There is thus an inherent contradiction in this version. This is also the case with regard to the father of Bashir deceased, namely, Mehr Ali, who was armed with a gun and still no harm was done to him while be approached the scene of occurrence. These aspects of the account furnished by these eye-witnesse do not appeal to reason and are apparently inconsistent with common course of human conduct.
32. ' The circumstances surrounding the prosecution version as to how the gun of Mehr Ali (P. W. 16) came to be in possession of the respondents also raises doubts as to the presence at the spot of Mehr Ali (P. W. 16) in the manner asserted by him. His version is not convincing as to why he came armed with the gun from his house merely because he heard the sound of gun reports in the vicinity. The medical evidence shows that a pellet was recovered from the chest of Razaq deceased "from the right chest front 1' from the mid-line under the skin at a higher level to injury No. 1'. Razaq appears to have received two injuries, besides this pellet, a penetrating wound while the other through and through. The eye-witnesses speak of only one shot, having been fired at him.
33. The presence of the pellet clearly indicates shot-gun fired at him, whereas the version of the prosecution in the F. J. R. As well as in ocular testimony is that only the first three respondents out of the respondents were armed with rifles and the rest with hatchets. The prosecution has made an attempt to explain away this material contradiction in its account with the medical evidence by producing evidence that there are weapons which are a combination of a shot-gun and a rifle. But sue weapons, even if they do exist are a rarity and there is no convincing evident that any of the assailants was armed with such a weapon. In any case the injuries inflicted upon Razaq deceased are attributed to Gulab Khan respondent and the only weapon recovered from him is an ordinary rifle. The part of the prosecution account relating to the manner in which Razaq deceased received the injuries, has been disbelieved concurrently by both Courts below. The only part assigned to Gulab Khan respondent is that he shot at Razaq and none whatsoever as to causing injuries to the other two deceased. There is no motive shown against the respondents for killing Razaq and as pointed out earlier, on the contrary there is an inherent contradiction, in describing the behaviour of the assailants, in sparing the lives of other intervenors who are close relations of the deceased and killing Razaq who was not even a relation. On the other hand, it is on the record that the father of Razaq deceased was a witness against Bashir deceased in a pending case under section 307, P.
34. P. C.
35. ' From these circumstances on record it cannot be argued legitimatel that the High Court was wrong in holding that in all probability Razaq deceased was fatally wounded with the gun of Mehr Ali (P. W. 16), especially when the Ballistic Expert, in his report confirmed that the empty found lying in one of the barrels of the gun at the breech end had been fired from the gun. It i, pertinent to note that Syed Arshad Hussain Shah (P. W. 17), the Investigating Officer has stated that after recording the F. I. R. Lodged by Mehrban Khan (P. W. 13), he had made a note at the end of the report that the "other party" meaning thereby Ramzan respondent and Sheraz F brother of Razaq deceased had also reached the Police Station. This shows that Ramzan came up with the counter version, almost immediately after recording of the F. I. R. In this case and produced the gun.
36. ' The death of Razaq deceased which has been criticised by the trial Court as a 'mystery' and the circumstances pointed out from the prosecution evidence, about the manner of his death, indeed reflect and react seriously upon the credibility of the ocular testimony and the High Court was not wrong in drawing the inference that the eye-witnesses are not speaking the whole truth. It is clear from the earliest version of the prosecution in the F. I. R. As well as the evidence of eye-witnesses that Razaq deceased was claimed to be a party-man of the complainant side. They cannot turn round now and disown this fact without explaining the real circumstances of his death and without damaging the truthfulness of their testimony.
37. I find nothing wrong in the High Court's refusal to rely on the testimony of the eye-witnesses on the ground, that they were all closely related to deceased Bashir and Munir as well as inter se, and that there was serious animosity existing between the parties. It is a well-accepted principle of appraisal of evidence that testimony of partisan witnesses especially when there is a background of any enmity between the parties, cannot as a rid of prudence be relied upon without independent corroboration.
38. ' Muhammad Iqbal (P. W .15) is not an independent witness as held by the trial Court. He has admitted that he is very closely related to Mehr All (P. W. 16) father of Bashir deceased and that his real nephew Zia was a co-accused in the pending case filed by the father of Razaq deceased against Bashir.
39. The argument relating to the nature of wounds found on the body of Razaq deceased is also devoid of force. In this behalf, it is pertinent to note that the pellet recovered from the body of Razaq deceased and the bullet recovered from the body of Bashir deceased was not sent to Ballistic Expert for examination and opinion. On the other hand an effort was made to secure evidence of the existence of weapons which are a combination of a shot-gun and a rifle. This reflects upon the honesty of the investigation and, therefore, the Court has to be on guard to scrutinize the ocular testimony with greater caution. In any case the medical evidence alone cannot furnish the required corroboration to connect the accused with the crime, if the ocular testimony is not of an unimpeachable character. Similar is the position with regard to the submission relating to the admission of Ramzan respondent. It has been rightly held by the High Court that if the prosecution evidence is full of improbabilities and is rejected as unreliable in regard to other respondents, it cannot be made a valid basis for conviction of Ramzan respondent safely. The overall impression gathered from the prosecution evidence is that the true facts had been withheld from the Court, which if truthfully disclosed would not have left the prosecution account with the improbabilities pointed out above and would have enabled the Court to determine the guilt of each respondent.
40. ' For the foregoing reasons, I would dismiss this appeal. The respondents, who are in jail would accordingly be set at liberty forthwith, if not required in any other case and the bail bond of respondents who are on bail shall be cancelled.
41. ' MUHAMMAD HALBEM, ACTG. C, .1.-1 agree.
42. ' MIAN BURHANUDDIN KHAN, J.-I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.