' The appellants Farzand Ali, Bashir Ahmed, Riaz Ahmed and Muhammad Mahmood alongwith four others namely, Saif alias Saffal, Muhammad Tufail, Abid Russian and Muhammad Mansha, were tried under section 307/326 etc., of the P.P.C. By a Magistrate 1st Class exercising the powers under section 30 of the Code of Criminal Procedure, Sheikhupura. By his judgment, dated 3-4-1988, the learned trial Magistrate acquitted Abid Hussain accused but convicted the appellants and co- accused Saif alias Saffal and Muhammad Tufail under section 148 of the P.P.C. And sentenced them to suffer R.I. For one year each and under section 326/149 of the P.P.C. And sentenced them to suffer R.I. For six years, and to pay a fine of Rs,5,000 each, and in default of payment thereof to suffer R.I.
For one year each. Out of the amount of fine, if recovered, Rs,10,000 was directed to be paid to Habib Hussain injured 43.W. The appellants and their co-accused were also allowed to have the period of detention in jail during the trial counted towards their sentence.
2. Muhammad Mansha co-accused, it is noteworthy, had been killed during the trial and the learned trial. Judge did not pronounce upon his guilt or innocence. Saif alias Saffal and Muhammad Tufail convicts have not appealed.
3. The appellants Farzand and Bashir Ahmed are real brothers; Mahmood appellant is stated to be their first cousin and Riaz Ahmed is stated to be their servant.
4. The incident, in which Habib Hussain (P.W.1) was injured occurred at about 2-00 p.m. In a field in Mauza Cheemay within the limits of Police Station Khanqa Dogran, District Sheikhupura, on 6-8- 1984. The first information of the incident was laid by Habib Hussain P.W. Before Muhammad Nawaz A.S.I. (P.W.6) when former lay admitted in the Civil Hospital, Khanqa Dogran, at 6-35 p.m. On the same day. Dr. Abdul Qayyum (P.W.3), who had attended the injured Habib Hussain P.W., found the following injuries on his person:-
(1) 3 incised wounds 1' x 1/6' x skin deep each on the left upper eyelid bleeding.
(2) An incised wound 1/4 x 1/10 x skin deep about 1/2 inch below the left eye bleeding. 1" x 1/8" x skin deep each about.
(3) Two incised wounds 1" below injury No,2 Horizontal in direction bleeding.
(4) An incised wound the all-round inside the left socket with profuse bleeding the eye ball has been fresh endarteritis and is absent from the eye socket.
(1)
A contused wound 2% inch x 1/2 inch x scalp deep on the parietal bone anteroom posterior in direction.
(6) A contusion mark 1/6" x 1/4" on the back of the ring finger of the left hand. The distal interphalynall joint is fractured here.
' The doctor kept injury No, 5 under observation. Injuries Nos. 4 and 6 were grievous and the remaining injuries were simple. Injuries Nos. 1 to 4 had been caused by sharp-edged weapon.
Injuries Nos. 5 and 6 were caused by blunt weapon. In the opinion of the doctor injuries Nos. 1 to 4 could not have been caused with hatchet.
5. The prosecution case as deposed to at the trial by Habib Hussain (P.W.1) was as follows.
Sometime before the occurrence, Muhammad Din, a brother of Habib Hussain P.W., was killed by Sabir Hussain, a brother of Farzand Ali appellant. Habib Hussain P.W. Was an eye-witness to the incident. The case was pending trial and the appellants and their co-accused had caused injuries to Habib Hussain to prevent him from appearing as P.W. In that case. Before that they suspected that Habib Hussain had been carrying on with a master of Mahmood appellant. The appellant and their co-accused had then caused injuries depriving him of his right eye.
6. On the day of the incident Habib Hussain and Muhabbat Ali P.W. Were working in their field. Habib Hussain felt thirsty and went to drink water from the Dera of one Muhammad Sharif leaving Muhabbat Ali P.W. Behind. After having taken water, Habib Hussain was returning towards his field; when he was passing by the field of one Abdul Raheem Kamboh, the appellants and their co- accused emerged from the Chari crop. Muhammad Mansha and Riaz Ahmad were armed with carbines, Abid Hussain and Mahmood were armed with guns, Farzand Ali was armed with a hatchet, Saif carried a Chhuri, Muhammad Tufail had a knife and Bashir Ahmed had a Sota.
Muhammad Mansha shouted that Habib Hussain was witness in the murder case of his brother and that he should be killed. Farzand An gave a hatchet blow on the head of Habib Hussain; he fell down and Bashir Ahmad gave a Sota blow on the finger of his left hand; the finger was broken.
Then Bashir Ahmad caught him by his arms; Riaz Ahmad caught him by his legs, Muhammad Tufail sat on his chest and started giving blows on his left eye with a view to taking out his eye. When he failed his object, Saif told him to hold him by his head and thus Saif was able to take out the eye- ball of his left eye with his Chhuri. Habib Hussain raised an alarm which attracted his father Shah Muhammad and his maternal uncle Muhabbat All P.Ws. They however could not save Habib Hussain.
7. During the course of investigation Farzand Ali, Bashir Ahmad and Mahmood were arrested on 8- 8-1984; and Riaz Ahmad appellant was arrested on 11-8-1984. On 11-8-1984, Farzand Ali allegedly led to the recovery of hatchet P.1, Bashir Ahmed allegedly led to the recovery of Sota P.2, Mahmood appellant led to the recovery of gun P.11 from his house on 15-8-1984 and Riaz Ahmad was stated to have led to the recovery of carbine P.8 from his house on 15-8-1984. The hatchet and the Sota stated to have been recovered from Farzand Ali and Bashir Ahmad were not blood-stained; nor were the fire-arms stated to have been recovered from Riaz Ahmad and Mahmood appellants in any way connected with the crime.
8. The prosecution case primarily rested upon the testimony of Habib Hussain (P.W.1) and his maternal-cousin Muhabbat Ali (P.W.2). Shah Muhammad P.W. Was given up as unnecessary. The learned trial Judge believed their testimony, he was also in recording conviction influenced by the fact that the appellants had a motive for the offence. He also believed the recovery of the weapon of offence mentioned above.
9. From what has been stated above, there should be no doubt that Habib Hussain and Muhabbat Ali P.Ws. Were inimically disposed towards the appellants and were, therefore, interested witnesses.
As has been noticed above, Farzand Ali and Bashir Ahmad appellants are real brothers, and Mahmood appellant is their first cousin. Riaz Ahmad appellant is their servant. Sabir Hussain, a brother of Farzand Ali and Bashir Ahmad appellants had killed Muhammad Din a real brother of Habib Hussain P.W. At the date of the incident that case was pending trial. It was stated before me that Sabir Hussain was later convicted and sentenced to life imprisonment. In an earlier incident Habib Hussain had allegedly been deprived of his right eye by the appellants, and though the incident was reported to the police, yet it did not reach the Court. It is obvious, therefore, that in order to act upon the testimony of Habib Hussain and Muhabbat Ali P.Ws. The Court must look for corroboration. As has been noticed above, the weapons of offence stated to have been recovered from the appellants could not furnish the necessary corroboration, for the hatchet and the Sota allegedly recovered from Farzand Ali and Bashir Ahmad were not besmeared with blood, and there was no evidence that the fire-arms recovered from Riaz Ahmad and Mahmood appellants were used in the commission of the offence. In the opinion of the learned trial Judge the injuries suffered by Habib Hussain P.W. Afforded the necessary corroborative evidence. But as was held in Machia and 2 others v. The State PLD 1976 SC 695 medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies.
' As has been seen above, Habib Hussain had suffered six injuries; four of them were incised wounds and could not, as opined by the doctor, have been caused with a hatchet. As regards injuries Nos. 5 to 6 both were blunt weapon injuries. It was said that injury No, 5, which was a contused wound scalp deep on the parietal bone had been caused by Farzand Ali appellant, who was, according to prosecution, armed with a hatchet. The evidence is not clear, if Farzand Ali had used the right or wrong side of the hatchet. Then Habib Hussain P.W. Said in so many words that Muhammad Mansha accused had exhorted his co-accused to kill him. Thus the declared object of their assault upon Habib Hussain P.W. Was to kill Habib Hussain P.W.; but what they actually did was to deprive him of his left eye. Indeed, this could not be accomplished by one or two persons. But that by itself is no reason to hold that the appellants had joined with their co-accused to perpetrate the offence. According to Habib Hussain P.W., the appellants and their co-accused's object was to prevent him from giving evidence against Sabir Hussain. This means, and as has been seen above, this was the declared object of the appellants and their co-accused, that the appellants wanted to kill him. But it is not clear why they stopped short by depriving Habib Hussain 9.W. Of his left eye. These circumstances, in my opinion tend to show that what had moved the perpetrators of the crime to do why they did was something different.
10. The Chari field where Habib Hussain P.W. Was subjected to beating adjoined the field where Habib Hussain, Muhabbat Ali and Shah Muhammad were working. The evidence was that nobody had seen the appellants and their co-accused entering into the Chari field, and concealing themselves in that field. Though it was a daylight occurrence, and there must be people working in their fields, yet nobody else was attracted to the spot. Significantly enough, even the alleged recoveries from the appellants and their o-accused were witnessed by Muhabbat Ali and Shah Muhammad, and the prosecution had no explanation to offer why no independent respectable of the locality was not associated. The report of the incident was made at 6-35 p.m. To Muhammad Nawaz A.S.I. Who himself went there for recording the F.I.R. Habib Hussain. P.W. Admitted that before his statement was recorded by Muhammad Nawaz A.S.I. Muhabbat Ali P.W. Had been to the police station. No reason, however, appears why Muhabbat Ali P.W. Did not act as the first informant. This, in my view, seriously affects his claim that he was an eye-witness to the incident.
11. For the above reasons, I am of the view that the case against the appellants was not proved beyond a reasonable doubt. I would, therefore, accept E the appeal, set aside their conviction and sentence and acquit them. They shall be released forthwith unless required in any other case.