1. HAMOODUR RAHMAN, C. J.-The appellant was tried along with three others, namely, Suleman, Jehana and Lai, for the murder of one Sultan Ahmad, by the Additional Sessions Judge of Sahiwal who acquitted Jebana and Lai but convicted Suleman and the present appellant under section 302/34 of the Pakistan Penal Code. Suleman was sentenced to death, but the appellant was sentenced to transportation for life and a fine of Rs. 500 or--- in default, further imprisonment for six months. These two were also convicted under section 325/34 of the Pakistan Penal Code and sentenced to five years' rigorous imprisonment each along with a fine of Rs. 200 or, in default, further imprisonment for three months.
2. On appeal and reference, a Division Bench of the High Court of West Pakistan dismissed the appeals of Suleman and the present appellant as also confirmed their sentences but at the same time issued a suo motu Rule under section 439, Criminal Procedure Code, calling upon the acquitted accused, Jehana and Lai, to show cause as to why their acquittals should not be set aside.
3. Suleman and the present appellant obtained leave from this Court for re-examination of the evidence.
4. Both the appeals were heard together by this Court on the 2nd of April 1969. The appeal of Suleman was, after an exhaustive examination of the evidence, dismissed, but the appeal of the present appellant was adjourned, at the request of the learned counsel appearing on his behalf, till the disposal of the suo motu Rule pending against Jehana and Lai in the High Court--- as it was contended that the present appellant's case stands on, the same footing. Thus, if the appeal of the present appellant is dismissed by this Court, then the case of the two acquitted accused; Jehana and Lai, might be seriously prejudiced in the High Court. .
5. The suo motu" revision in the High Court has since been disposed of on the 24th of June 1971. The High Court has accepted the opinion of the trial Court that, as a measure of abundant caution, it would be safer to give the said two accused, Jehana and Lai, the benefit of doubt. In any event, the High Court was "inclined to think that the order of re-trial after the lapse of five years would not be justified in a case of this nature".
6. In view of the dismissal of the suo motu revision, the appeal of the present appellant has now been reposted before us for disposal.
7. Learned counsel appearing in support of this appeal has endeavoured, in spite of the previous judgment of this Court, to re-argue the entire case. He has contended that the occurrence did not take place in the manner or at the time alleged by the prosecution, the witnesses relied upon by the prosecution were not present at the time of the incident and were not eye--witnesses at all and their testimony has been clearly contradicted by the medical evidence. Strong reliance has in this connection also been placed on the evidence of Foot Constable Khuda Bakhsh (P. W. 2) who, though called only as a formal witness,. Had, in cross-examination, disclosed that "the dead body was lying to the north of the tubewell . . . . . . . . . . . . At a distance of 2/3 squares from the tubewell".
8. With regard to the evidence of this witness, this Court, in its previous judgment, observed that the evidence of P. W. 2, the Foot Constable, cannot, in the circumstances, be relied upon. It is not unlikely that he tried to oblige the defence".
9. This witness was contradicted by the Police Officer Mushtaq Ahmad (P. W. 11), and after examining their evidence, this Court did not consider the evidence of the constable reliable. We see no reason to change our opinion. It is not an uncommon feature now to find that subordinate Police officials, examined only as formal witnesses by the prosecution, attempt to oblige the defence in cross- examination, for reasons best known to themselves.
10. It would appear from the evidence of the Police Officer Mushtaq Ahmad (P. W. 11) that, on the date of the incident when he arrived at the place of occurrence, nobody informed him that the occurrence had, in fact, taken place near the house of accused Suleman. It was only two days later, on the 10th of May 1966, that for the first time this disclosure was made to the D. S. P. When he came to the spot, and it was then that the witness went to the house of Suleman accused and seized some blood-stained earth, from near that place, where a few drops appeared to have fallen. He also belied the statement of the Foot Constable that the accused had appeared before him on the same day at about 4 p.m. And produced their respective weapons. If the accused including Suleman had, in fact, appeared before the Police Officer on the date of the occurrence at 4 p.m. In an injured condition, he would have been immediately sent for medical examination, but the evidence of the doctor (P. W. 1) is that he medically examined Suleman at 8 p.m. On the 9th of May 1966 when Suleman was admitted as an indoor patient in the hospital. This supports the statement of the A. S. I. (P. W. 11) that he was informed at the spot that Suleman had already been taken to the hospital and he examined Suleman on the 11th of May 1966, at the hospital, after getting a certificate (Exh. PL/1) from the doctor that he was in a fit condition to make a statement.
11. Learned counsel has also drawn our attention to the difference between the ages of the injuries on Suleman and Munshi Khan (P. W. 9). While the doctor stated that the injuries on Suleman had been caused "within the duration of 24 hours", the duration of injuries on Munshi Khan "was within 48 hours". From this, it is argued that the injuries on witness Munshi Khan (P. W. 9) were caused much earlier, and, therefore, the present appellant, who is charged with having caused these injuries did not participate in the occurrence resulting in the death of Sultan Ahmad. His conviction under section 302/34 of the Pakistan Penal Code was thus illegal as he could not have shared the common intention of Suleman.
12. This aspect of the matter also received consideration by this Court in the appeal of Suleman where this Court had held that the difference in the ages of the injuries, as given by the doctor, was not sufficient to "cast any serious doubt on the direct evidence of the prosecution witnesses", because, the durations of the injuries given by the doctor were only an approximate estimate of the ages of the injuries. They could not, as such, "outweigh the direct evidence on the point", as a margin of error has, from the very nature of things, always to be allowed in such cases. We are still of the same view and are not impressed by the contention which has again been reiterated with some vehemence.
13. Learned counsel next drew our attention to the evidence of the Patwari (P. W. 4) to show that the place, from where the blood-stained earth was seized, was near the house of Suleman accused.
14. This, according to him, was also supported by Khan Muhammad (P. W. 8) who admitted in cross- examination that "the blood of Suleman accused fell on the back side of his house as he received the blows at the time of the occurrence". The suggestion on the basis of this evidence is that the present appellant had not participated in the incident resulting in the death of Sultan Ahmad but might have participated in some earlier incident in which the complainant party were the aggressors. We are unable to accept this story which is in direct conflict with the defence set up by Suleman himself. Suleman, it will be recalled, admitted the presence of the witnesses Munshl Khan (P. W. 9) and Khan Muhammad (P. W. 8) at the time of the incident. The presence of these two witnesses is also confirmed by the injuries on their own person. It is not possible to accept, therefore, the contention of the learned counsel that there was an earlier incident which was wholly unconnected with the incident resulting in the death of Sultan Ahmad. The pro--babilities on which the learned counsel has sought to rely, seem rather to support the prosecution version, and if that version is accepted, the participation of Bagu, the present appellant, in the incident, is clearly established beyond any doubt and he was rightly convicted constructively under section 302/34 of the Pakistan Penal Code, even though he did not cause any injuries to the deceased himself. By attacking others and preventing them from coming to the aid of the deceased, he shared the common intention of Suleman who actually attack--ed the deceased. In the circumstances, we are satisfied that the prosecution had established beyond doubt the participation of the appellant Bagu and he was rightly convicted.
15. His appeal is, accordingly, also dismissed. We see no reason also to interfere with the sentence imposed upon him which is a lawful sentence.
16. Before parting with this case, we cannot help observing that the frequency with which cases are coming up before us wherein formal witnesses, particularly foot constables, are found to be obliging the defence in cross-examination with regard to matters wholly unconnected with the part the witnesses took in the investigation, is causing us some concern. We entirely agree with the observations of one of the learned Judges of the Peshawar High Court in the case of Sikandar Shah v. The State (PLD 1965 Posh. 134) that the obliging concessions made by such witnesses in cross- examination cannot be considered to be of any value. We also hope that the Provincial Governments will take note of these observations and take steps to check such propensities on the part of their own subordinate Police Constables.