1. WAHIDUDDIN AHMAD, J.-This judgment will dispose of Criminal Appeal No. 1 of 1970 and Criminal Appeal No. 2 of 1970. These two appeals are by special leave against the judg--ment of the High Court of West Pakistan, Lahore, in Criminal Appeal No. 548 of 1968 (Murder Reference No. 172 of 1968), dated the 10th February 1969.
2. Dalmir, Mohammad Rafiq and Mohammad Munir who are real brothers, were tried for the murder of Ibrahim on the night between 15th and 16th May 1967. The Sessions Judge, Lyallpur by judgment dated the 29th June 1968, convicted them under section 302/34, P. P. C. Dalmir was sentenced to death. Mohammad Rafiq and Mohammad Munir were sentenced to trans--portation for life and a fine of Rs. 2,000 each or in default of pay--ment of fine to suffer further rigorous imprisonment for two years each. The appellants challenged their conviction in Criminal Appeal No. 548 of 1968 (Murder Reference No. 172 of 1968), but their conviction was upheld by the High Court.
3. The prosecution case is that Ibrahim deceased had his cattle--shed in Killa No. 3 of Square No. 18 of Chak No. 139/R. B. His brother Mohammad Din P. W. Had his cattle-shed in Killa No. 5 of Square No. 19 of the said Chak. The two deras were at a distance of 150 karams from each other. On the 15th May 1967, at about 11-30 p.m. Mohammad Din P. W. 4, his son Hidayat P. W. 6 and Mohammad Siddiq P. W.5 were going towards their dera. It was moonlit night. When they ap--proached the dera of Ibrahim, they heard outcries of Ibrahim. Mohammad Din and others hurried to the spot and found that Mohammad Rafiq and Mohammad Munir appellants had caught hold of Ibrahim from legs and hands, and Dalmir appellant was giving hatchet blows to Ibrahim on his right leg.
4. Mohammad Din and his companions challenged the assailants who left Ibrahim and ran away towards their house. The assailants were pursued to some distance but they managed to escape.
5. Thereafter, Ibrahim informed Mohammad Din and his companions that he was half asleep when the appellants had arrived, that Mohammad Rafiq and Mohammad Munir held him down on the cot and that Dalmir had given him hatchet blows on his right leg.
6. The motive against the appellants is that of enmity. It is alleged that one Khuda Bakhsh was prosecuted for causing hurt to Mohammad Rafiq appellant. The deceased appeared as defence witness and Khuda Bakhsh was acquitted. It is further alleged that 3/4 months before the occurrence, Mohammad Rafiq and Ibrahim and others sat in ambush to assault Ibrahim.
7. Ibrahim was carried to the Hospital at Salar Wala at a distance of about 2 -- miles.The Parties reached their at about 3 : 00 a.mIbrahim succumbed to the injuries at 6-30 a.m. The same day.
8. Mohammad Din P. W. Lodged the first information report at Police Station Chak Jhumra at a distance of about 10 miles at about 9-00 a.m. The report was recorded by S. 1. Atta Mohammad Khan, P. W. 13.
9. S. I. Atta Mohammad Khan reached the Hospital at about 1-00 p.m. And prepared the injury-sheet and inquest report and sent the dead body for post-mortem examination. He then went to the spot and reached there at about 5-00 p.m. He took into possession blood-stained cot and blood- stained earth from under-- death the cot where the dead body of the deceased was lying, vide Memo. Exh. P. B. Dalmir and Mohammad Rafiq were arrested on the 17th May 1967. Key Exh. P. 6, was recovered from the person of Dalmir vide Exh. P. E. Thereafter, Dalmir led the police to his cattle- shed and opened the lock, Exh. P. 8, and pro--duced the hatchet, Exh. P. 7, which was lying concealed on a beam. The hatchet was taken into possession vide Memo. Exh. P. D. The recovery was witnessed by Mohammad Hussain P. W. 9 and Shah Mohammad P. W.
10. Mohammad Munir was arrested by A. S. I. Nazar Sadiq P. W. 3 on the 19th June 1967 from Lahore. The report of the Chemical Examiner shows that the hatchet was stained with human blood vide Exh. P. R. The Serologist's report shows that the earth and scrapings from the hatchet were stained with human blood. The deceased was examined by Dr. Mohammad Nawaz who found six injuries on his person.
10. The first was incised wound, 3-- " x 3/4" about 1-- " deep cutting the bone partially on the front and outer side of right leg, 1--" below the right knee joint. The second was an incised wound, 2--" x -- x 1-- ", about 1" below injury No. 1 on the right leg on the front and outer side. The 3rd was an incised wound, 2-- x -- x --' on the front side of the right leg just below injury No. 2. The fourth was an incised wound, 5" x 1" x 1--", cutting tibia bone partially and cutting blood vessels and muscles also on the front and outer side of the right leg about ----- below injury No. 3. The fifth was an incised wound, 4--" x ----- x 1--", on the outer and front of right leg just below injury No. 4. The sixth was an incised wound, 3--" x -- x --", on outer and front of right leg 1" below injury No. 5. Injuries Nos. 1 and 4 were grievous ; other injuries were simple. The condition of patient was dangerous. He was unconscious and expired at 6-30 a.m.
11. Post-mortem examination was performed by Dr. Munawar--ud-Din who found the same injuries as had been noticed by Dr. Mohammad Nawaz. In his opinion the death was due to severe haemorrhage and shock caused by the injuries. Injury No. 4 was fatal individually in ordinary course of nature.
12. All the appellants denied their participation in the crime and pleaded that they have been falsely implicated out of enmity. Mohammad Munir claimed that on the night of occurrence he was not present in the Chak.
13. The prosecution case is supported by the evidence of Mohammad Din P. W. 4, Mohammad Siddiq P. W. 5 and Hidayat P. W.
6. Mohammad Din deposed that his dera was situated in Killa No. 5 of Square No. 19 while the dera of the deceased was situated in Killa No. 3 of Square No. 18 and the distance between the two deras is about 100 karams. He had to pass near the dera of the deceased while going towards his dera from the Chak. On the night of occurrence, it was a moonlit night, he and Hidayat left for the dera in the Chak at about 10 or 10-30 p.m. Mohammad Siddiq P. W.
14. Joined them at a distance of 1 killa from the Chak. He was going towards his land. When they reached at a distance of 13/14 karams from the dera of the deceased he heard the noise raised by Ibrahim deceased who was shouting `mar ghai, mar ghai'. He ran towards the spot along with Hidayat and Siddiq. When he reached at, a distance of 2 karams from the deceased, he saw that Mohammad Munir accused was pressing the head of the deceased and Mohammad Rafiq accused was holding the legs of the deceased while Dalmir accused was giving hatchet blows to the deceased on the right leg. He challenged the accused. The accused ran away. He and others two eye-witnesses chased them but failed to catch them. He and the said two witnesses returned to the deceased. The deceased was in his senses at that time. The deceased told him and the other eye-witnesses that he was half asleep when Mohammad Munir and Mohammad Rafiq accused pressed him while Dalmir gave him hatchet blows. The deceased further told that in case he and other witnesses had not reached in time the accused would have murdered him. He further deposed that 2 or 3 years before the present occurrence, one Khuda Bakhsh gave beating to Mohammad Rafiq accused and was challaned. Ibrahim deceased appeared as defence witness and he was acquitted in that case. He also deposed that about two years before the occurrence, Dalmir accused was challaned under sec--tion 430, P. P. C. On the oath of Ibrahim deceased. He also deposed that at about 3/4 months from the present occurrence, Dalmir accused and others way-laid the deceased but the deceased was saved due. To his arrival in time. The evidence of this witness was corroborated by Hidayat P. W. 6 and Mohammad Siddiq P. W. 5.
15. The conviction of appellant Dalmir is also based on the recovery of hatchet which was found to be stained with human blood by the Serologist. The appellants challenged their convic--tion in these two appeals before us.
16. Leave; was granted in this case to consider as to whether the evidence against the appellants has been appreciated upon correct principles after taking into consideration all the circumstances in their favour, as also to consider as to what offence, if any, has been committed by the appellants upon the facts proved.
17. I will first take up the case of Dalmir appellant. Direct evidence against him is of Mohammad Din P.
18. W. 4, Mohammad Siddiq P. W. 5 and Hidayat P. W.
6. All of them had deposed that when they were on their way to dera, they heard the outcries of the deceased at a distance of about 13 to 14 karams from his dera. They went towards the dera of the deceased and when they were at a distance of about 2/3 karams, they saw Mohammad Munir accused held the deceased from the head side and Mohammad Rafiq accused held the deceased from the legs side while Dalmir accused inflicted hatchet blows to the deceased on his right leg.
19. Ch. Nazir Ahmad Khan, learned counsel for the appellants has argued that the prosecution witnesses are interested. P. W. 5 Mohammad Siddiq was a chance witness and no reliance should be placed on his evidence. He further contended that the case of the prosecution that the occurrence took place at 11-30 p.m. On a moonlit night which was 5th of the moon, is not correct.
20. That there was a very little moon light and the witnesses in the darkness could not identify the assailants. He further contended that the presence of a number of trees in the dera of the deceased would still further reduce all chances of visibility. According to him, the occurrence had taken place at dark hours of the night when the identification was not possible. The contention of the learned counsel has not impressed me. The timing given in the calendar of the High Court shows that on the 5th of the lunar month, the moon-rise was at 10-42 p.m. And the moon-set was at 12-07 p.m. The witnesses identified the accused from a distance of 2 or 3 karams and in my opinion they could easily identify them from a distance of 2 or 3 karams. The fact that there were trees in the dera of the deceased would not reduce all chances of visibility.
21. The contention that the witnesses are interested and related to the deceased appears to be quite true. In my opinion, the witnesses appear to have witnessed the scene of occurrence but for safe dispensation of justice the corroboration of their evidence is necessary. In the case of Dalmir appellant, a blood-stained hatchet was recovered at his instance from his cattle-shed. P. W. 9 Mohammad Hussain, P. W. 10 Shah Mohammad and P. W. 13 Atta Mohammad Khan Sub-Inspector are the witnesses of the recoveries. It was urged on behalf of the appellant that Mohammad Hussain is a relative of the deceased and no importance should be attached to his statement so far as the recovery is concerned. There is, however, no such allegation against Shah Mohammad.
22. He is an independent witness and is not related to the deceased. The only criticism of his evidence is that Hussain Bakhsh brother of ,Shah Mohammad filed a suit against the further of the accused before the Conciliation Court for the recovery of Rs. 500 which was dismissed on the 8th February 1963. Shah Mohammad denied to have any knowledge about the said suit. There may be a petty case between Hussain Bakhsh and the father of the accused and it may not be within the knowledge of this witness. In my opinion Shah Mohammad is a disinterested witness and there is no reason to disbelieve his statement. The recovery therefore is a genuine one. In these circumstance no exception can be taken so far as the conviction of the appellant Dalmir is concerned.
23. It was next urged by the learned counsel for the appellants that Dalmir should not have been death sentence because he had no intention to kill the deceased. According to the learned counsel the injuries themselves show that there was no intention to kill the deceased. He contended that the pattern of the injuries was such that it could only manifest an intention on the part of the assailants to maim the victim and not to kill him. He con--tended that if the appellant had the intention to kill the deceased there was nothing to prevent the assailants armed with hatchet to strike a blow on the neck of the deceased. This contention also has no force. The case of the appellant Dalmir is covered by clause (3) of section 300, P. P. C. Clause thirdly provides that if the act by which the death is caused is done with the inten--tion of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course- of nature to cause death, then culpable homicide is murder. In the present case, the appellant Dalmir caused number of injuries on the leg of the deceased with a sharp-edged weapon. One of them was grievous and was given on the tibia bone of the right leg. According to the doctor, this injury was quite sufficient in the ordinary course of nature to cause death. I am, therefore, satisfied that appellant Dalmir has been rightly convicted for the murder of deceased Ibrahim.
24. So far as the case of Mohammad Rafiq and Mohammad Munir appellants is concerned, it stands on a different footing. The only evidence against them is of the three eye-witnesses who are interested in the deceased and inimical towards the appellants. There is no corroborative evidence against them as in the case of Dalmir. The possibility that the complainant-party has roped in all the three brothers for the murder of the deceased cannot be ruled out. I would, therefore, give them benefit of doubt in the absence of any corroboration. The conviction of these two appellants is set aside and they are ordered to be released if not required in any other case.
25. MUHAMMAD YAQUB ALI, J.-I agree.
26. SAJJAD AHMAD, J.-I agree.
27. M. R. KHAN, J.-I-agree.