ASLAM RIAZ HUSSAIN, J.--The six petitioners namely: Nazar A.I; Shah Muhammad; Muhammad Iqbal; Muhammad Ayub; Abdul Ghani and Muhammad Shaft, were accused alongwith Hakim A.I and Liaqat A.I, for the murder of Muhammad Siddiq (deceased), and making murderous assault and injuring Ghulam Rasul (PW.9); Shah Rasool (PW.10) and Abdul Maleek (PW 12), at 9 a.m. On 15- 7-1979, in Chak No.158/9-L Police Station Dera Rahim, District Sahiwal. The FIR was lodged by Ghulam Rasul PW9 (son of the deceased) who was himself an eye-witness.
2. The prosecution case briefly stated is that on 15-7-1979 at about 8-30 a.m. Ghulam Rasul complainant (PW9) alongwith his father, Muhammad Siddiq, (deceased), Shah Rasul (brother) and Abdul Maleek (uncle), both injured P.Ws. Were sitting outside their Dhari situated in Killa No.25 of square No.62 of Chak No.153-9/L. Abdul Aziz son of Nizam Din PW had come there in order to take their tractor for ploughing his field and another Abdul Aziz son of Muhammad Hayat (given up PW) had also come there to request for some Bhoosa. They were all sitting and talking with each other, when the complainant noticed that the cattle of Muhammad Shafi accused-petitioner were damaging the Jawar crop of Ghulam Rasul who drove out the cattle from his field. In the meanwhile Shaft petitioner accused also arrived there Ghulam Rasul asked Muhammad Shafi (petitioner) to take care of his cattle upon which the latter abused Ghulam Rasui and said that he would get his crop damaged by the cattle and would also avenge for cutting the insult and molestation of Mst. Gurri.
On the same day at about 9 a.m. Shah Muhammad, Muhammad Ayyub, and Nazar A.I accused- petitioners armed with gandasas, Abdul Ghani petitioner armed with hatchet, Muhammad Iqbal, Muhammad Shaft, Hakim A.I and Liaqat A.I accused arrived there armed with sticks raising lalkaras that none of them (i.e. The complainant party) would be spared and shall be done to death.
Shah Muhammad petitioner-accused inflicted a gandasi blow at the head of Muhammad Siddiq (deceased); Nazar A.I accused also inflicted a Gandasi blow on the backside of head of Muhammad Siddiq (deceased) who fell down; Thereafter Muhammad Ayyub accused inflicted a gandasi blow on the backside of head of Muhammad Siddiq (deceased) on his right arm.
Abdul Maleek P.W. (uncle of the complainant and brother of the deceased) stepped forward to rescue Muhammad Siddique (deceased) whereupon Abdul Ghani accused inflicted a hatchet blow on the head of Abdul Maleek P.W.
Muhammad Ayyub accused also inflicted a gandasi blow, hitting Abdul Maleek PW at the backside of his head, on which Abdul Maleek PW fell down; whereupon Liaqat A.I accused inflicted a lathi blow to Abdul Maleek PW hitting him on the right side of his head and Hakam A.I accused also inflicted a lathi blow to Abdul Maleek PW hitting him on the right side of his mouth near the eye.
Muhammad Shafi accused inflicted a lathi blow on the head of Ghulam Rasul (PW.9) complainant.
Iqbal accused also inflicted a lathi blow on the right arm of Ghulam Rasool complainant PW.9. Hafiz Abdul Aziz PW and Abdul Aziz son of Muhammad Hayat PW (since given up) residents of the same village tried to intervene to rescue them but the accused threatened that if they interfered, they would be dealt with similarly. The said P. Ws. Did not therefore attempt to rescue victims of the attack due to fear. The accused then ran away with their respective weapons.
The accused were arrested and during the investigation Gandasa (P.1) was recovered from Shah Muhammad; Gandasa (P2) from Muhammad Ayyub, Hatchet (P3) from Abdul Ghani and Dangs (P.4 to P7) were recovered from Liaquat A.I, Hakam A.I, Muhammad Iqbal and Muhammad Shaft, while Gandasi (P8) was recovered from Nazar A.I. None of these articles was sent to the Chemical Examiner to determine whether or not they were stained with human blood. As such the recoveries are not of much use.
3. The prosecution case rests mainly on the ocular testimony of three eye-witnesses. Namely Ghulam Rasul (PW7), Shah Rasul (PW.10), and Abdul Maleek (PW.12), all of whom had been injured during the incident. It also relied on the evidence of motive and the medical , evidence.
It may be mentioned here that apart from the injuries on the person of the deceased and the three injured witnesses, the medical examination also revealed 7 injuries on the person of Muhammad Shaft accused-petitioner, which are described as follows:-
(1) A swelling 2" x 2" on the back and upper part of right elbow.
(2) Contusion mark 7" x 2" on the right upper part back chest.
(3) Contusion mark 10" x 3" on the back of the upper part of chest.
(4) Scaped abrasion 1" x 1/2" on the back of left abdomen.
(5) Contusion mark 4" x 1/2" on the back lower chest and abdomen.
(6) Abrasion 1" x 1/2" on the outer side of the right knee joint.
(7) Swelling 4" x 3" on the outer side of right ankle joint.
4. The trial court by its judgment dated 28-1-1981 acquitted Hakam A.I and Liaqat A.I on the ground that they had established the plea of alibi, but convicted the remaining 6 accused (the present petitioners) under sections 302/307/148 and 149, P.P.C. And sentenced them as follows: - Under section 302, P.P.C. Nazar A.I was sentenced to death, while it sentenced petitioners 2 to 6 to imprisonment for life.
Under sections 307/149, P.P.C. All the six petitioners were sentenced to 3 years' R.I. And under section 148 all the six petitioners were sentenced to 2 years' R.I. Each.
The petitioners then filed an appeal before the High Court which dismissed it but reduced the sentence of Nazar All petitioner under section 302 PPC from death to imprisonment for life.
They have now come for leave to appeal before this Court.
5. Learned counsel for the petitioners urged that the accused admit that the occurrence had, in fact, taken place, but have given a different version of the manner in which it took place. In this connection the statement of Muhammad Shafi petitioner under section 342 Cr.P.C. May be reproduced for facility of reference:- "On the day of occurrence Ghulam Rasul PW, who is a man of bad character had outraged the modesty of Mst. Ghurri, daughter of Shah Muhammad accused in the morning when she was going for call of nature. Ghulam Rasul PW, for the consummation of his criminal designs dragged her to his Dhari on the day of occurrence. I had my turn of water to irrigate my land. I and Hakam A.I s/o Mehr Din were attracted at the shrieks of Mst. Ghurri while she was being dragged by Ghulam Rasul PW. On my intervention Muhammad Siddique (deceased), Abdul Maleek and Shah Muhammad alongwith Ghulam Rasul PW started beating me with Sotas. I alongwith Hakam A.I s/o Mehr Din and some other persons of the village who were also attracted at the spot caused injuries to Muhammad Siddique deceased, Abdul Maleek, Shah Rasul and Ghulam Rasul PWs. We caused injuries to them in order to save my life and to save the honour of Mst. Ghurri without any intention to kill anyone of them. The alleged co-accused Shah Muhammad, Muhammad Ayub, Muhammad Iqbal, Abdul Ghani, Liaqat, Nazar and Hakam A.I s/o Imam Din were not present at the spot at the time of occurrence."
6. The counsel submitted further that the very fact that the learned trial Court held, (t) that Hakam A.I and Liaqat A.I were not guilty and acquitted them on the ground that they were not present at the spot at the time of occurrence; (ii) that the eye-witnesses had deliberately enlarged the number of the accused persons and falsely involved some innocent persons as having taken part in the incident, is sufficient to show that the testimony of these witnesses is not reliable and should not have been believed with respect to the remaining accused (petitioners) as well, without there being some independent corroboratory evidence qua each of them showing that they were present at the spot at the relevant and had taken part in the incident.
He submitted further that the High Court had erred in using the recoveries of dangs and hatchets from the accused persons as corroboratory evidence although the trial Court had rejected the testimony of the recovery witnesses. 'He pointed out that even otherwise the recoveries did not, in any way, advance the prosecution case, as they did not connect the accused with the commission of the crime in question because none of the weapons recovered was found to have been stained with human blood and further that 'dandas' and hatchets etc. Are in possession of almost every villager in the Punjab.
He submitted further that one of the accused petitioners namely Muhammad Shafi had sustained as many as 7 injuries during the incident but the complainant party suppressed these injuries in the FIR lodged by it. He also pointed out that strangely enough the police had recovered dangs even from two acquitted accused whom it found to be innocent. If these recoveries were false and were disbelieved the recovery from the other accused persons did not stand on any better footing and should also have been disbelieved.
He submitted further that the High Court has not given due weight to the injuries on Muhammad Shaft accused in considering the possibility that the defence version might be correct.
7. We feel that the above-noted contentions need further consideration. Leave is, therefore, granted to consider whether the well-established principles of appreciation of evidence in criminal cases have been followed in this case.