' Muhammad Latif son of Rahmat Khan (18), Allah Ditta son of Ahmad Din (65), Nazir Ahmad son of Mithoo Khan (23), Muhammad Hussain son of Rahim Ali (251 and Muhammad Sadiq soil of Ramzan (70), all residents of village Langaryal, Teh. Kharian, District Gujrat, were tried by the learned Additional Sessions Judge Gujrat under sections 302/148/ 149, P. P. C. For forming an unlawful assembly and in the prosecution of the common object thereof, committing the murder of Muhammad Rafi son of Rahmat Khan of the same village. The learned trial Judge vide his judgment dated 12-7-81 while acquitting Nazir Ahmad and Muhammad Sadiq, convicted and sentenced Muhammad Laic, Allah Ditta and Muhammad Hussain under section 326, P. P. C. To ten years' R. I., with a fine of Rs, 2,000 each or in default thereof to undergo further one year's R.
1. Each.
2. The convicts have filed the present appeal.
3. The occurrence took place on 5-5-1980 at degarwela in village Langaryal, 12 miles away from Police Station Lalamusa. Munawar Hussain complainant (P. W. 9), a maternal nephew of the deceased reported the matter at Police Post Kikaryali on the same evening at 6.45 p. m. Which was reduced into writing vide Exh. P. L. By Shafqat Hussain Shah Head Constable and a case was registered vide F. I. R. Exh. P. B. Formally drawn by Ameer Akbar at Police Station Lalamusa under section 307/148/147, P. P. C. Which was later on altered to one under section 302, P. P. C. On the death of the deceased.
4. The facts of the case briefly stated are that Munawar Hussain complainant was posted as a teacher in village Langaryal. On the fateful day he alongwith Muhammad Rafi deceased, Rahmat Khan his maternal grandfather (P. W. 11) was present at his Khalwara 'situated towards the north east of the village. The Khalwara of Muhammad Latif appellant was also there at some distance.
The two goats belonging to him entered in the Khalwara of the complainant and started consuming the wheat. The deceased turned out the goats from the Khalwara and reminded Muhammad Latif to take care of his goats upon which Muhammad Latif appellant abused the deceased. The deceased in return also abused. Then. Muhammad Latif went towards his Khalwara.
After a while the three appellants accompanied by the acquitted co-accused, all armed with triangles forming themselves into an unlawful assembly, raising Lalkaras came over to the Khalwara of the complainant and attacked Muhammad Rafi deceased. Muhammad Latif appellant was the first who inflicted a triangle blow to Muhammad Rafi on the head. The second blow was given by Allah Ditta appellant hitting the deceased on the right side of his head. Muhammad Rafi then fell on the ground. While the deceased was lying prone, Muhammad Hussain appellant gave a triangle blow on the left side of his head. Nazir Ahmad acquitted co-accused caused an injury on the back of the deceased. Muhammad Sadiq acquitted co-accused remained there instigating the other accused to kill Muhammad Rafi deceased. Muhammad Rail became unconscious. An alarm raised by the complainant attracted Muhammad Ashraf (P. W. 10) to the spot who also witnessed the occurrence. The P. Ws. Got the deceased freed from the clutches of the accused by entreating them.
' The motive for the attack is stated that 3/4 days prior to the occurrence the cattle of Muhammad Latif appellant also damaged the wheat crop of Muhammad Rafi deceased which culminated in the exchange of abuses between the parties.
5. On 5-5-80 the complainant along with the deceased who was in an injured condition was on his way to Police Post Kakaryali for making a. Report as to the incident when Shafqat Hussain Head Constable met him in Langaryal Chowk where his statement Exh. P. L. Was recorded. The Head Constable then sent the complaint to Police Station Lalamusa for a formal registration of the case.
He prepared the injury statement Exh. P. N. Of Muhammad Rafi deceased and thereafter sent the deceased in the accompany of two constables to A. B. S. Hospital Gujrat and he himself went to the spot. There he recorded the statements of the P. Ws. A supplementary statement of the complainant was also recorded. On the next day he visited the hospital. He made an application Exh. P.
0. Requesting the doctor for recording the statement of the deceased but the doctor vide his report Exh. P. K./1 endorsed that the deceased was not in a fit condition to make a statement. Similarly on his application as to the result of injuries kept under observation the doctor reported that Injuries Nos. 1 and 2 were grievous and dangerous to life. Later on the deceased was shifted to the General Hospital Lahore and on 8-5-80 Shafqat Hussain Shah Head Constable went there for recording his statement but the doctor reported that the deceased was not capable of giving any statement.
Again on 24-5-80 he visited the hospital for the aforesaid purpose but the doctor's reply was in the negative.
' On 27-5-80 the Head Constable arrested Muhammad Sadiq acquitted co-accused who while in police custody led to the recovery of Triangle P.
4. It was taken into possession vide memo. Exh. P. G. He got prepared site plan Exh. P. A. And PA/1 by the Patwari and inserted his notes With red ink.
' Ameer Muhammad Shah S.-I. (P. W. 13) partly investigated this case. On 6-6-80 he received an information as to the death of Muhammad Rafi in the General Hospital. On 9-6-80 he went to Lahore and got the copy of the post-mortem report from the incharge of Police Station Factory Area Lahore.
' Muhammad Akbar A. S.-I. (P. W. 14) also investigated this case. On 10-5-80 he arrested appellants Muhammad Latif, Allah Ditta and co-accused Nazir Ahmad. While in police custody Muhammad Latif appellant got recovered Tringle P. 5 from a Kothri of the house. It was taken into possession vide memo. Exh. P. H. Similarly Allah Ditta appellant and Nazir Ahmad co-accused led to the recovery of Tringles P. 6 and P. 7 which were taken into possession vide memo. Exhs. P. I. And P. J., respectively. On 22-5-80 he arrested Muhammad Hussain appellant, who later on got recovered Tringle P. 3 which was taken into possession vide memo. Exh. P. F.
6. Doctor Rashid Javid Ch. (P. W. 8) while posted as a Medical Officer in Aziz Bhatti Shaheed Hospital Gujrat, medically examined Muhammad Rafi deceased who was in an injured condition on 5-5-80 and found the following injuries on his person:-
(1) A tender swelling x 21" on right side of head in temporal region.
(2) A tender swelling on top of head.
(3) A tender swelling 3" x 2" on left side of head in the temporal region.
(4) A tender swelling with bruise on back of chest.
' The deceased was unconscious. The doctor declared that the aforesaid injuries were caused with a blunt weapon. He, however, kept the injuries under observation out of which Injuries Nos. 1 and 2 were returned as grievous and dangerous to life.
' The deceased died on 4-6-80 at 12.25 p. m. In the General Hospital Lahore. However, bus post- mortem examination was conducted by Dr. Sabir All (P. W. 12). The injuries earlier found on the person of the deceased while he was in an injured condition were not present at the time of postmortem examination. The doctor found that under surface of .The scalp over the frontal parietal region and both the temporal regions were found ecchymosed. The front parietal bone was found nibbled in area 13 x c. m, by the surgeon, the superior sagittal sinus was found repaired and one sponge stone was found lying over it. The wound of the skull was neither septic nor there was any bleeding in the cranium. Two linear fractures were arising from the nibbled area going on to the frontal bone. Anteriorly another linear fracture was arising from the right end of the nibbled area and it was going towards the right temporal bone. There was fissured fracture arising from the left end of the nibbled area and was going towards the left temporal bone. There was a separate fissured fracture of the right temporal bone.
' In the opinion of the doctor, the injuries were ante-mortem inflicted by some blunt weapon and the injury to the brain was sufficient to cause death in the ordinary course of nature. As to the cause of death, the doctor further opined that the cause of death was toxaemia due to septic process in the right lung. The duration between injuries and death was about one month and between death and post-mortem was a day only.
7. Dr. Riaz Ahmad Ch. (P. W. 16) on 7-5-80 medically examined Rehmat Khan P. W. And found the following'injuries on his person:-
(1) A scalped wound r x on left side of scalp.
(2) A scalped wound 1" x f' on top of scalp.
'Complained of pain on left shoulder. All the injuries were caused with a blunt weapon. Those were kept under observation.
8. In support of its case the prosecution at the trial relied upon the following pieces of evidence.
(i) The evidence of motive given by Munawar Hussain (P. W. 9), Muhammad Ashraf (P. W. 10) and Rehmat Khan (P. W. 11).
(ii) The ocular evidence furnished by the aforesaid three P. Ws. Out of whom Rahmat Khan P. W.
Was injured in the incident.
(iii) The incriminating recoveries; and
(iv) The medical evidence.
9. All the appellants in their statements under section 342, Cr. P. C. Denied the allegations against them including the incriminating recoveries allegedly made at their instance. In an answer to a question that why the case was made against them, all the appellants stated:- "The real facts are that the dispute occurred between the deceased and Bashir brother of Nazir accused in the Khalwara of said Bashir, who in connivance with the police managed to proceed abroad and in his absence in connivance with the police we have been falsely implicated in this case for being his relatives ' All the appellants are related inter se. Appellant Muhammad Latif is paternal cousin of Nazir Ahmad co-accused who is maternal nephew of Allah Ditta appellant. Muhammad Hussain appellant is paternal cousin of Allah Ditta appellant. Muhammad Sadiq co-accused is brother-in- law of Muhammad Hussain appellant. The appellants did not lead any evidence in defence.
However, Muhammad Latif appellant produced a school leaving certificate Exh. DD. In order to show that he was at that time a school going by.
10. The learned trial Judge disbelieved the motive by observing:- "Had the accused any intention or common object to commit murder they could have easily attacked upon the deceased at some early hours when they were already in their Khalwara alongwith Tringles with which they were working. Had the goats of Latif not come to the Khalwara of the deceased, then there was no question of any mis happening between the parties. For these reasons, I can safely conclude that the accused had no motive at all for the commission of this murder."
' As to the ocular evidence he believed the testimony of Munawar Hussain (P. W. 9) and Muhammad Ashraf (P. W. 10) and came to the conclusion:- ' the allegation against him (Sadiq co-accused) is that he inflicted injury to Rehmat Khan P. W. But as I have already discussed the injuries upon the person of Rehmat Khan P. W. Do not prove to have been received at the time of occurrence, so in view of this legal position, I find that the prosecution case against Nazir Ahmad and Muhammad Sadiq accused is not proved beyond shadow of doubt.
14. Now the question arises that in these circumstances whether the statements of the eye- witnesses should be believed or not so far as the other accused are concerned. I will refer to 1973 SCMR 162, in which it has been laid down that the maxim 'false in one thing false in all' is not applicable in this country in context of the conditions prevailing here. Courts have to sift grain from the chaff and the mere fact that evidence of eye-witnesses being not relied upon on one of the accused would not react on the credibility of evidence against the other accused. So I find that the ocular evidenee is reliable so far as Latif, Allah Ditta and Muhammad Hussain accused are concerned."
11. The learned trial Judge discussing the evidence of recovery in Paras. Nos. 15 and 16 of his judgment came to the conclusion that the same were not worth relying and he rejected this piece of evidence. Finally the learned Additional Sessions Judge relying upon 1976 P Cr. L J 869, found the appellants guilty of an offence under section 326, P. P. C.
12. The learned counsel for the appellants has assailed the validity of the impugned judgment by maintaining that after having disbelieved the witnesses on important aspects of the case qua the acquitted accused it was not safe to rely upon the evidence of such witnesses in respect with the appellants. In these circumstances it is necessary to go for corroboratory evidence from an independent and unimpeachable source. In this case the witnesses went up to the extent of involving innocent persons without themselves having witnessed the occurrence. The reasons on which the learned Additional Sessions Judge has rejected a part of the evidence of the witnesses can be applied to the evidence which has been believed by him, hence the same is also liable to be rejected. The appellants are entitled to acquittal because of the complete absence of the corroboratory evidence since recoveries have not been relied upon by the learned Additional Sessions Judge. The medical evidence belies the ocular account. The witnesses state in their evidence that the fingers of the triangles were used in causing the injuries while it is in the medical evidence that as to the injuries blunt weapon had been used, so according to the learned counsel, the conviction, if at all possible cannot be maintained under section 326, P. P. C. As the injuries were proved to have been caused with a blunt weapon then the case falls under section 325, P. P. C.
13. As to the requirement of independent corroboration in a case where an ocular account vis-a- vis certain accused is disbelieved the learned counsel has relied upon. Ahmad v. The State (1), Muhammad Sher v. The State (2), Imam Bakhsh v. The State (3), Muhammad Siddique v. The State (4), Ghulam Rasool v. The State (5) and Muhammad and another v. The State (6).
14. The learned counsel for the State has in reply submitted that the medical evidence corroborates the ocular account as to the injuries. The recoveries have been wrongly disbelieved by the learned Additional Sessions Judge. So far as the present state of the case is concerned the appellants' case is distinguishable from that of the acquitted accused. As to the appreciation of evidence in such a situation the learned counsel has submitted that the mere fact of evidence of eye-witnesses being not relied upon against an accused, will not react on the credibility of the evidence against the other accused and for this the learned counsel has relied upon Samano v. The State (7). In this decision the learned Supreme Court has observed as to the maxim falsus in uno falsus in omnibus,' that this maxim is not being followed by the Courts of this country within the context of conditions prevailing here. The Courts have their duty to sift the grain from the chaff. As to the conflict of evidence regarding the use of the weapon the learned counsel has submitted that no doubt a Tringle is a blunt weapon meaning {{FOOT NOTE}}
(1) 1982 SCMR 1049
(5) 1979 P Cr. L J 493 (2) 1982 P Cr. L J 534 (4) 1981 P Cr. L J 149 (6) PLD 1954 FC 84 (7) 1973 SCMR 162 {{FOOT NOTE}} ' thereby that it is made of wood but its one part which pertains to fingers happens to be the sharp part of it with which piercing cuts and injuries can be caused and with this part a tringle can be regarded as an instrument within the contemplation and scope of section 326, P. P. C. As to the sentence the learned counsel for the State has addressed that the learned Additional Sessions Judge has already taken a lenient view and has not convicted the appellants under section 302, P.
P. C. According to him the appeal merits dismissal.
14. The main address of the learned counsel for the appellant is towards, `appreciation of the evidence', therefore, for a just disposal of the present appeal it is necessary to examine the way the learned Additional Sessions Judge has approached the case. He has rejected the evidence of P. W.
Rahmat Khan, one of the eye-witnesses of the occurrence. He has given as many as eight reasons towards the rejection of his evidence. The predominant reason among which is that after five minutes of the occurrence the witness had gone to village Buzargwal and remained stuck there until the third day of the A occurrence despite the fact that immediately after the occurrence his son in an unconscious state was admitted in the hospital. As to the appreciation of the evidence of this witness I agree with the conclusion of the trial Court.
15. It is an admitted fact that the complainant is son of the sister of the deceased but as to the relationship of the deceased with Muhammad Ashraf P. W. 10 the learned Additional Sessions Judge has observed that it "remains unproved". As to a related witness the learned trial Court has right/ 1B observed that a related witness is not always an unworthy , witness. However the evidence of Munawar Hussain (P. W. 9) is the same on the material points as has been alleged by him in the F. I. R. His presence at the spot does not strike as unnatural since according to the site-plan his Khalwara is at a distance of five Karams from the place of occurrence, nor it has been shown as is observed by the learned Additional Sessions Judge that the witness had some motive to falsely implicate the present appellants. The learned Additional Sessions Judge has rightly applied the dictum of 1978 SCMR 136 that the witnesses related to the deceased will not normally allow the real murderer to escape by implicating an innocent person and C 1968 P Cr. L J 407, that substitution of a real murderer is a thing of rare occurrence.
The narration as to facts of occurrence by P. W. 10 Muhammad Ashraf is more or less in the same weight as that of the complainant. He also does not appear as an unnatural witness because his Khalwara is also situated, as shown in the site-plan, at a distance of 12 Karams. In respect with this witness there is nothing to suggest on the record that he had any motive to falsely implicate the appellants, therefore, reliance of the learned Additional Sessions Judge on the evidence of this witness qua the appellant is not misplaced.
16. To deal with the contention of the learned counsel for the appellants that the witnesses were disbelieved as to the co-accused and as to the evidence was not worth relying against the appellants. The matter requires examination from the point of view that whether the witnesses have been rightly disbelieved in respect with the co-accused namely Nazir Abmad and Muhammad Sadiq. The learned Additional Sessions Judge has observed that the case has not been fully proved rather it is doubtful against Nazir Ahmad and Muhammad Sadiq co-accused.
The reason which the learned trial Judge has given is that because during the cross-examination the complainant stated that after receiving first two injuries on the head when Muhammad Rafi deceased fell on the ground his face was upward, so the learned Judge is of the view that when the face of the deceased was upward how blow with a tringle could be given on his back by Nazir Ahmad co-accused and on this the learned Judge has concluded that the prosecution case against Nazir Ahmad was much doubtful. The reason which has been accorded by the learned trial Judge as to the doubtfulness of the case against Nazir Ahmad co-accused is not a strong one. It is never incumbent in proving a particular case on the prosecution in such matters to lead evidence with mathematical accuracy. Once it is proved that the accused person are present on the scene of occurrence and they participate equally in attacking a deceased with their respective weapons then resultant injurie are attributable to all of them by virtue of there being a joint attack. It had not been asked from the witness that at the time Nazir Ahmad co-accused gave his blow what was the position of the deceased. It had been simply stated by this witness that after receiving the first two blows the deceased fell down with his face upward but that does not mean that remained so throughout. As a matter of course when a person receives certain blows he passes through a state of convulsions by which the possibility of the turning of the body, either way cannot be ruled out.
Had the answer been to a question that by the time Nazir Ahmad co-accused hit him what was the position of the deceased then the statement of the complainant could be regarded of some value.
Moreover when a participation is prove an inaccuracy about such a detail, does not contribute much so as to detract from the value thereof therefore, the learned Additional Sessions Jud G in his approach is wrong that Nazir Ahmad's case is doubtful when he has been equally implicated along with the appellants as a participant. Sin there is no appeal or revision against the acquittal of Nazir Ahmad and the matter is not before me, therefore, the matter ends as it is but with the result that the appreciation of evidence in this regard by the learned Additional Sessions Judge is not correct.
17. As to Muhammad Sadiq co-accused the reasoning of the learned Additional Sessions Judge is also shaky. While assessing the liability as to Lalkaras, to observe that proverbial Lalkaras are frequently alleged to implicate innocent persons cannot be treated as a rule for all the cases. The assessm ent of such a liability depends upon the facts of each case. The learned Additional Sessions Judge irrespective of the referred rule ought to have assessed upon the liability of Muhammad Sadiq co-accused in keeping with the circumstances availing in this case. In view of what has been said immediately above here the evidence of Munawar Hussain (P. W. 9) and Muhammad Ashraf (P. W. 10) cannot be regarded as dis believable in respect with the co-accused except that whether the Lalkara attributed in the circumstances as to Muhammad Sadiq co- accused per se could give rise to any liability in law since his case is also not before me, a further probe is not required, therefore, it is not available to the learned counsel for the appellants to maintain that an independent corroboratory evidence I required in this case to corroborate the witnesses in respect with the appellants since in my view it is not a case of divided veracity. The learned Additional Sessions Judge has wrongly found that the prosecution has not been able to prove its case against the co-accused, therefore, the decision cited by the learned counsel for the appellants are of no help to him because the case does not need any further corroboration as the witnesses appear to be truthful so far as goes the implication.
18. The prosecution has succeeded in proving its case through the ocular account of two P. Ws.
Even if it is regarded that the recoveries and motive have been rightly rejected. The learned counsel for the State is right in his submission that the ocular account as to the injuries stands corroborated by the medical evidence. The defence of the appellants appears to be fantastic so it has been rightly rejected by-the learned trial Court.
19. The learned trial Judge has convicted the appellants under section 326, P. P. C. On the ground that the cause of death as expressed in the post-mortem report was toxaemia due to septic process in the right lung and no injury had been caused to the right lung of the deceased. It is, no doubt, also expressed in the post-mortem report that the injury caused to the brain was sufficient to cause death in the ordinary course of nature but in the opinion of the learned trial Judge it had not been proved that the deceased died of head injury because of the cause of death distinctly stated and the injuries having been healed up before his expiry after a month.
20. The deceased appears to have died out of the diseased sung and not due to the injuries inflicted upon him. So the appellants incur only the liability causing grievous hurt in a joint venture.
But even then an exception can be taken to the conviction of the appellants under section 326, P. P.
C. As the weapons used in causing the injuries have been described as blunt weapons. No injury is attributable with the piercing part of the tringle i.e. Wooden fingers. So the resultant injuries cannot be contemplated within the scope of section 326, P. P. C. And in this behalf of the submission of the learned counsel for the appellants is acceptable that if the conviction is maintainable as to grievous hurt then the offence against the appellants falls as covered by section 325, P. P. C.
Because of the weapons used and the nature of the injuries.
21. For the foregoing reasons Cries appeal is partly accepted; the conviction and sentences of the appellants under section 326/34, P. P. C. Are set aside. However they are convicted under section 325/34, P. P. C. For having caused grievous injuries with blunt weapons. As to the sentence, the appellants' have already undergone a period of two years and eight months, therefore, it will meet the ends of justice if the same is treated as the sentence under section 325/34, P. P. C. It is ordered accordingly. The appellants shall be released forthwith if not required to be detained in connection with any other case.