1. JAVID IQBAL, J.--The appellant was tried for offences under section 302/307/34 of the Pakistan Code along with his brother Ajoon, Faqir and Safir by the Sessions Judge, Manschura, who vide his judgment, dated 6th November, 1978 convicted the appellant and Safir under section 302/34, P.P.C for the murder of Kala deceased and sentenced each of them to imprisonment for life. Both of them were also convicted under section 307/34, P. P. C for the murderous assault on Chan Zeb and each of them was sentenced to suffer four years' R.I. They were further sentenced to a fine of Rs.1,000 each under section 544-A, Cr.P.C. Or in default to undergo six months' R.I each. If the fine was realized it was directed to be paid to the legal heirs of Kala deceased as compensation. Their co-accused were acquitted. Both the appellant and Safir filed separate appeals against their convictions and sentences in the Peshawar High Court, Peshawar where learned Judges of the Division Bench accepted the appeal of Safir and acquitted him, but the convictions as well as sentences awarded to the appellant by the trial Court were maintained.
2. Leave to appeal was granted to the appellant through hail jai petition on the ground that when the appellate Court had entirely demolished the prosecution case then was there any justification left on which the appellant's guilt on the serious charge of murder could bell founded?
3. Briefly the facts of the case are that on 21st November, 1977. At Deegar Qaza Wela, Mutwalli complainant a resident of village Mongar was present in the Verandah of his cattle Bandi when Kala deceased and Chan Zeb who were sons of his sister came to him from their Bandi in order to proceed together to the village. In the meantime the appellant, his brother Ajoon, Faqir and Safir who were residents of the same village came from the village side. The appellant and Safir were armed with knives while Ajoon and Faqir had sticks in their hands. On reaching the spot they attacked Kala deceased with knives and sticks. Faqir and Safir also attacked Chan Zeb with knife and stick. Both the victims fell on the ground and Kala deceased expired on the spot. The occurrence was witnessed besides Mutwalli complainant and Chan Zeb by Sakhi Sultan who was attracted to the spot. The prosecution case further is that both Mutwalli and Sakhi Sultan tried to separate the parties. However the appellant and his companions left the spot due to the alarm raised by the eye-witnesses. Thereafter other people also assembled there. Eventually Mutwalli proceeded to the police station in order to lodge the report.
4. The motive alleged in the F.I.R. Was that a month prior to the present occurrence Chan Zeb was injured by Faqir and Safir etc. And thereafter, a domestic Jirga took place which brought about a compromise between the parties on payment of Rs.600 to Chan Zeb by the accused party. The accused party had maintained grudge on this account and the present occurrence took place in order to take revenge. It may be noted here that according to the F.I.R. The fight had taken place between Chan Zeb on one side and Faqir and Safir on the other. Thus, although the appellant, who is stated to be closely related to Faqir and Safir, did not have any direct motive as against Kala deceased. The next point which should be taken note of here is that F.I.R. In the present case was lodged by Mutwalli on the same day after the lapse of couple of hours and the police station was at a distance of about 6/7 miles away. It may further be noted that both the accused and the complainant party are also closely related to each other. Kala deceased and Chan Zeb are sister's sons of Mutwalli. Humayun appellant and Ajoon are brothers inter se, and Faqir is their uncle while Safir is son of Faqir. Faqir is also an uncle of the appellant while the appellant and his brother Ajoon both are also sister's sons of Mutwalli. Kala deceased was married to the daughter of Mutwali.
5. No recoveries were effected from the appellant or his companions. The prosecution case is based on the ocular testimony of Mutwalli, injured' Chan Zed and Sakhi Sultan. Khushhal Khan was produced to prove the motive.
6. According to the medical evidence Kala deceased had nine incised wounds on the neck. Spine, left side of the back, front of chest, right hypochondrium, three injuries in the abdomen region and on the right leg as well as three abrasions on the right shoulder and right upper arm. The death in the opinion of the Medical Officer had occurred due to shock and haemorrhage as a result of the injuries to the heart and lungs. These injuries were individually and collectively sufficient in the ordinary course of nature to cause death of the deceased.
7. According to the medical evidence Chan Zeb injured had five incised wounds on the lower chest, right forearm, right middle phalynx, left lumber region and left side of the occiput. The injuries were caused with sharp-edged weapon and all these were simple in nature. The doctor also opined that the sharp-edged weapon injuries found or the persons of Kala deceased as well as Chan Zeb could have been caused possibly one and the same weapon.
8. The appellant was also medically examined on 24th November 1977 at 10-55 a.m. When he was produced by the police. He had received one swelling 2" x 1" behind the head and he complained of pain in the right wrist joint. The injury was simple in nature caused with blunt weapon and its duration was to be 3/4 hours. The Medical Officer in this case was recalled as Court witness and her statement was recorded wherein she explained that the duration recorded as 3/4 hours in the report was due to typing error and that actually it was 3/4 days.
9. So far as the appellant is concerned he in his statement before the trial Court admitted the previous incident i.e. That Chan Zeb was injured and the dispute was patched up on payment of Rs.600 to Chan Zeb by the accused party. He also asserted that Chan Zeb was not pacified by the settlement. About the injury on his head he explained as having been caused by a Danda of the police. It may be pointed out that the case of the prosecution was based mainly on the ocular testimony of three eye-witnesses supported by the motive version and medical evidence, but the learned Judges of the Division Bench of the Peshawar High Court Peshawar, in appeal as well as the trial Court had disbelieved the ocular testimony of Sakhi Sultan whereas the learned Judges of the Division Bench had held that all the eye-witnesses produced by the prosecution were closely related to the deceased.
10. It has already been pointed out that Ajoon and Faqir co-accused of the appellant had been acquitted by the trial Court as there was no corroboration of the prosecution evidence as against them. But the learned Judges at the appeal stage also allowed the appeal of Safir co-accused and acquitted him for the reason that there was likewise no corroboration of the prosecution evidence as against him and that the reasons which prevailed with the trial Judge for disbelieving the prosecution evidence against Ajoon and Faqir co-accused were applicable with equal force in the case of Safir co-accused whose presence on the scene of crime or participation in the offence was not free from doubt. Nevertheless the convictions and sentences awarded to Humayun appellant were maintained on the ground that the prosecution evidence as against him was being corroborated by the evidence respecting motive version as welt as the injury on his head.
11. "There could also be no denying the fact that medical evidence contradicts the prosecution version of attack on Kala and Chan Zeb both by all the accused with daggers and sticks. None of them has received any such injury as may be attributed to sticks or a blunt weapon. The nature of the injuries on the persons of the deceased and Chan Zeb P. W. Is such as was rightly opined by the medical expert as possibly having been caused by one weapon and, therefore, by the hand of one man. The ocular evidence coming from interested and Criminal witnesses requires very strong corroboration by any piece of circumstantial or other evidence. The corroboration to the role attributed to Humayun appellant is provided firstly by the injury on his person and secondly by the evidence of motive. The incident prior to the occurrence of the offence charged of stands admitted in which Chan Zeb was injured at the hands of Humayun. It is also admitted rather brought on record by the prosecution itself in the evidence of the only disinterested witness Khushhal Khan that P. W. Chan Zeb had openly declared that he will avenge himself against Humayun. By weighing all the pros and cons of prosecution evidence, it transpires that as a consequence of the earlier incident, some sort of altercation took place between Chan Zeb P.W. And Humayun accused in which while Humayun was beaten by sticks etc., the deceased and Chan Zeb received dagger injuries from his hands resulting in the death of Kala. The presence of Mutwalli on the spot is also not free from doubt."
12. A perusal of these findings clearly indicates that the appellate Court totally demolished the prosecution case which was primarily based on the ocular testimony, by holding it as untrustworthy because all the three eye-witnesses were closely related to the deceased, there existed previous enmity between the parties, Sakhi Sultan had been disbelieved by the trial Court as well as the appellate Court and about the role of Mutwalli also the appellate Court was of the opinion that his presence on the spot was not free from doubt. The learned Judges of the Division Bench also arrived at the conclusion that there was inordinate delay in the lodging of the F.I.R. And that the first informant had spent sufficient time in concocting the story and in involving those persons who had not actually participated in the occurrence. It was further held that the medical evidence contradicted the prosecution version of attack at Kala deceased and Chan Zeb by all the members of the accused party including the appellant with daggers and sticks because none of them had received any such injury as may be attributed to sticks or a blunt weapon. It was likewise held that the doctor had rightly opined about the possibility that both the deceased and Chan Zeb were caused injuries by one weapon and by the hand of one man. Despite of this assessment of the ocular testimony the learned Judges of the Division Bench proceeded to maintain the convictions and sentences only of the appellant on the ground that the ocular testimony or the prosecution evidence in his case was finding corroboration. Firstly, by the injury on his head, and secondly, by the evidence of motive. It is a well-established principle of administration of criminal justice that the nature of evidence in respect of the motive or medical expert was not a corroborative piece of evidence but only supporting evidence. However, in the present case if the ocular testimony is to be considered as entirely unreliable being interested, then supporting evidence in the` nature of 'motive or medical evidence would have no corroborative value. Again so far as the medical evidence is concerned, the injury noticed on the head of the appellant in the opinion of the Medical Officer was only 3/4 hours old but later on when she was recalled as a Court witness, the duration of the injury recorded in the report was changed to 3/4 days old. The appellant in his statement before the trial Court had stated that the head injury on his person was caused by the Danda of the police and that version might have been considered as correct for it was in conformity with the first opinion of the doctor i.e. That the duration of the injury was only 3/4 hours old. So in this state of medical evidence no reliance should have been placed on it as a corroborative piece of evidence. Then so far as the motive version is concerned, even if we were to arrive at the conclusion that in the earlier incident Chan Zeb had caused injuries to the appellant and that he was not satisfied with the compromise then the target of the appellant should have been Chan Zeb and not Kala deceased who was not directly involved in the previous quarrel, but it is strange that Chan Zeb only received simple injuries at the hands of the assailant whereas Kala deceased received twelve injuries out of which at least four were individually as well as collectively sufficient to cause death in the ordinary course of nature. Thus, both the motive version and the medical evidence on which reliance had been placed by the appellate Court as corroborative ocular evidence, was not a safe and sound basis on which the guilt of the appellant on a serious charge of murder could be founded, particularly when the ocular testimony had been considered as totally unreliable and had been disbelieved in respect of the parts attributed to the three co- accused.