This appeal arises from the judgment of the learned Sessions Judge, Dera Ghazi Khan. Whereby, he on 26-5-1979 convicted Ghulam Hussain, Rasool Bakhsh, Paira and Mehinwal appellants under section 302/34, P. P. C., for causing the death of Nazar Hussain and sentenced them to imprisonment for life and a fine of Rs, 2.000 in default thereof one years' R. I., each and under Section 307/34, P.P.C. And sentenced them to 7 years' R. I. And a fine of Rs, 500. In default thereof 6 months' R. I. Each with the diretcion that the fine if realized half of it to be paid to the heirs of the deceased and Liaqat Hussain P. W. As compensation. All the sentences were to run consecutively.
2. The occurrence took place on 16-12-1978 at Maghrab time near the canal bank of Kalu Wah, village P.Akh Fazil Wah. The F. I. R. Exh. P C. Was lodged by Atta Muhammad P. W. 5, the cousin of the deceased at 8-30 p. m. On the same day at Police Station, Fazilpur and was recorded by Malik Umar Hayat S. H.O., P. W.
9. The distance between the place of occurrence and the police station is 4+ K. M.
3. The motive as alleged by the prosecution is that 4 months before the occurrence, Nazar Hussain deceased and Liaqat Hussain P. W. 6 had given fists and kicks blows to Mehr, father of Ghulam Hussain, Raul Bakhsh and Paira appellants in his quarrel over playing of cards. It has been alleged that to take the revenge of that insult, the appellants killed Nazar Hussain and launched murderous assault upon Liaqat Hussain.
4. The prosecution case is that on the fateful day, the deceased alongwith Atta Hussain P. W. 5, and Liaqat Hussain P. W. 6 had gone to the shop of Buddhan Commission Agent for settling the accounts and at Maghrab time when they were on their way to their houses, they were attacked by the appellants near the Canal Bank of Kalu Wah.. Ghulam Rasool, Rasul Bakhsh and Paira armed with hatchets and Mehinwal with dang emerged from the reeds. Ghulam Hussain and Rasul Bakhsh inflicted hatchet blows on the person of the deceased and that when Liaqat Hussain intervened to save Nazar Hussain, he too, was injured by Paira and Mehinwal with their respective weapons The prosecution case is that Paira appellant was also injured by Liaqat Hussain P. W. In self-defence.I Nazar Hussain succumbed to the injuries on the spot. This occurrence was seen by Hussain Bakhsh P. W. Who has been given up as having been won over.
5. On 17-12-1978, Dr. Sher Muhammad Kaleem conducted the postmortem examination on the dead body of the deceased and found the following injuries on his person.
(1) An incised wound 44-" x 1" x bone cut on the left side extending from 34-' behind the outer end of left eyebrow and going downwards and backwards towards the neck, cutting the left ear and underlying bone.
(2) An incised wound 5" x 14" x bone cut on the lower part of neck over the spine seventh cervical in transverse direction.
(3) An incised wound 54-" x 2" x bone cut on the back of left shoulder over the spine of scapula.
Spine cut.
All these injuries were grievous and were caused by sharp-edged weapon. In the opinion of the doctor, the death was due to these injuries which were sufficient to cause death in the ordinary course of nature. Injuries Nos, 1 and 2 were even individually fatal. The death was immediate and the time between death and post-mortem was 18 to 24 hours.
On the same day, the same doctor examined Liaqat Hussain and found the following injuries on his person : -
(1) An incised wound 34-" x bone deep on the left side of head 21" above the left ear, the underlying bone cut.
(2) An incised wound 2' x x bone deep on the right deltoid region/ underlying bone cut. Wound is in transverse direction.
(3) A bruise 21" x I' on the back of left shoulder.
Injuries No4. 1 and 2 caused by sharp-edged weapon were grievous in nature. Injury No, 3 was caused with blunt weapon and was declared simple.
On 19-12-1978, the same doctor examined Rasul Bakhsh appellant but did not find any injury on his person :- On 20-12-1978, the same doctor examined Paira appellant and found the following injuries on his person.
(1) An abrasion 1" x 1/6" on the back of middle of right fore-ana. He also feel pain and there is tenderness.
(2) An abrasion ly x r on the lower part of left deltoid region.
These injuries were declared simple and were caused by-pointed type of weapon. In the cross- examination, the doctor opined that injury No, 3 of Liaqat Hussain could be caused by blunt side of hatchet and that the injuries on the person of Paira were caused by pointed type of weapon which could be by goding with a walking stick and these could also be caused by thin police baton.
6. P. W. 9 Malik Umar Hayat inspected the spot. He took into possession broken piece of hanule of hatchet Exh. P 3 from the spot and made into sealed parcel vide memo. Exh. P.K. He arrested Ghulam Hussain, Rasul Bakhsh and Mehinwal appellants. On 18-12-1978, Rasul Bakhsh produced hatchet Exh. P. 8 which was taken into possession vide memo. Exh. P. N. Ghulam Hussain produced blood-stained hatchet Exh. P. 9 with its broken handle which was made into a sealed parcel vide memo. Exh. P O. Mehinwal produced stick Exh. P. 10 which was taken into possession vide memo.
Exh. P.Q. All these memorandas were arrested by Muhammad Hussain P. W. 8 and Muhammad Khan (not produced). On 19-12-1979, he arrested Paira accused who produced hatchet Exh. P. 11 which was takan into possession vide memo. Exh. P. R. Attested by Ata Hussain P. W. 5 and Sadiq (not produced). The Serologist Report Exh, P.V. Shows that the broken piece of handle of the hatchet and the hatchet were stained with human blood.
The appellants when examined under section 342, Cr. P. C. Denied the incriminating circumstances and stated that they were involved on account of enmity. Paira appellant when asked to explain his injuries stated that he was not injured by Liaqat Hussain P. W. But was beaten by the police. The appellants examined Ghulam Sarwar Shah in defence who stated that no alteration took place between Nazar Hussain deceased and Liaqat P. W. On one side and Mehr Khan on the other side that the deceased and Liaqat had not given fist or kicks blows to Mehr Khan at Darbar Jamal Shah.
7. The learned counsel for the appellant has submitted that the prosecution has failed to prove its case beyond reasonable doubt. Ata Hussain P. W. Was not present at the post; Liaqat Hussain P. W.
Although present on the spot but is not a truthful witness ; that the occurrence did not take place at Maghrab time but it took place after about Isha time; that the real culprits could not be identified by Liaqat Hussain P. W. And that the occurrence did not take place in a manner as allged by the prosecution.
As against this, the learned counsel for the State has defended the judgment of the learned trial Court on the grounds that it was not a night occurrence ; Liaqat Hussain being injured witness was very much present on the spot and that the substitution, in the circumstances of the case was not possible.
8. After hearing the learned counsel and going through the record, I propose to appreciate this case in the light of the guiding principles laid down by Supreme Court in case Niaz v. The State which read as under :- "Whenever interested persons claiming to be eye-witness of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only worth the commission of the offence, of where the number of persons whom they name does not exceeds that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence."
9. After having appreciated the ocular evidence in the light of the principles as stated above. I find that the presence of Liaqat Hussain P. W. 6 is proved by the fact of injuries on his person.Ata Hussain P. W. 5 is cousin of the deceased. He used to reside near the house of the deceased and has given cogent reasons of his having accompanied the deceased at the time of occurrence and as such cannot be termed as a chance witness. The occurrence having taking place at Maghrab time, and the witnesses being close relatives of the appellants, there was hardly any difficulty for the identification of the assailants. As for the third test i,e, credibility of the witnesses. I find that the eye-witnesses namely, Ata Hussain P. W. 5 and Liaqat Hussain P. W. 6 have to be believed for the reasons that mere relationship with the deceased would not bring therd in the category of the "interested witnesses" unless some enemous or rancour is proved against them. Ata Hussain being1 the first cousin of Ghulam Hussain appellant is equally related to the appellants. The defence has not been able to prove the enmity or the of these witnesses with the appellants. The eye-witnesses have stood the test of cross-examination. Except for some minor and insignificant omissions and contradictions the defence could not elucidate anything advantageous. The evidence of these witnesses appears to be in consonance with the probability, materially fits in with the other evidence and inspires confidence. The learned counsel has tried to make capital out of the non- examination of the third eye-witness namely, Hussain Bakhsh, I, however, find that he has been given up as having been won over; that he being the cousin of the appellants is closely related to them and as such the reason as to why he was not prepared to support the prosecution is very much obvious and that the appellants also did not pick-up the courage to produce him as defence witness The statement of D. W, 1 that there was no quarrel between Mehr Khan, the father of Ghdlam Hussain appellants and the deceased at Darbar Jamal Shah, does not demolish the testimony of the eye-witnesses. Furthermore, it is a case of prompt F. I. R. Wherein the motive, the names of the appellants, the name of the witnesses and the weapon used by the appellants are mentioned. The learned counsel for the appellants has not been able to show that this F.I.R. Is not a genuine piece of documents. For these reasons, the submissions made by the learned counsel do not hold water.
10. Although for the conviction of the appellants implicit reliance can be based on the evidence of these eye-witnesses yet since 3 real brothers are involved in the case, therefore, as a matter of abundant caution and for the safest administration of justice, I propose to look for corroboration qua each appellant. As against Mehinwal and Ghulam Rasool I find no corroboration. As for Paira appellant I find confirmatory circumstance in the shape of injuries on his person. His explanation that these injuries were the result of beating by the Police appears to be after-thought inasmuch as Malik Umar Hayat, S. H.O., P. W. 9 was not cross-examined on the point. This circumstance, i. e.
The injuries on the person of Paira appellant has satisfied my mind as to his participation in the occurrence. So far as Ghulam Hussain appellant is concerned, his participation in the murder is confirmed by recovery blood stained hatchet with broken handle which stands proved by the statement of Muhammad Hussain P. W. 8 and the Investigating Officer. It is remarkable that the broken piece of handle of hatchet lifted from the spot has also been found stained with human blood. I am clear in my mind that these two additional confirmatory circumstances do exclude the possibility of the false implication of Paira and Ghulam Hussain.
11. For what has been stated above, the appeal to the extent of Ghulam Hussain and Paira appellants is dismissed. Their conviction and sentences are upheld. As for Rasool Bakhsh and Mehinwal, without disbelieving the ocular evidence but giving the benefit of doubt, I acquit them of the charges. They shall be released forthwith, if not required in any other case. PLD 1960 C 387