1. HAMGODUR RAHMAN, C. J.-This appeal is directed against the judgment of a Division Bench of the former High Court of West Pakistan, Lahore Seat, whereby the seven respondents herein. Who had been convicted by the learned Additional Sessions Judge, Lahore, on various charges, were alt acquitted.
2. According to the prosecution, the occurrence took place at 3 p.m. Of the 31st of May 1965 inside the deorhi of one Gulab in village Jahman within Police Station Barki, District Lahore. In this incident, one Budhoo was, killed and two others, namely, Sohniand Nawab Din (P. W. 16} were murderously assaulted and injured. After causing these injuries, the. Assailants, it is said, went away but returned some 20 or 30 minutes later with a mare and carried away the dead body of Budhoo. They were seen later at 4 p.m. Going towards the new canal, where allegedly the body was, dismembered and thrown into the canal. Subsequently, only two human legs were recovered, which some of the witnesses attempted to identify as those of the deceased but even the trial Court did not accept this evidence due to a clear conflict in the opinions of two doctors examined in the case; one by the prosecution and the other by the defence.
3. For this incident, the seven respondents herein were charged along with four others under sections 148, 449, 201 and 302/325/326 read with section 149 of the Pakistan Penal Code. The trial Court gave the benefit of doubt to four of the accused on the ground that "in cases where a number of persons from the same family are involved, it is always prudent and safe as well to give benefit of doubt to those accused who are not alleged to have actively participated in the offence, so as to eliminate every possibility of conviction of an innocent person". kumhar by case, are all telis and are closely related to each other. The respondents. Nos. 1 and 2, Khushi Muhammad and Ismail, are brothers. The respondents Nos.4 and 7 are the sons of respondent No. 1, Khushi Muhammad. The respondents Nos. 3 arid 5, who are brothers inter se, are respondent Khushi Muhammad's wife's brothers. Respondent No. 6, Mohammad Sadiq (or Siddique) is the son of Respondent No. 5, Ghulam Mohammad. Out of the acquitted accused, Ishaq is the son of respondent No. 3, Qaim Din, Ilam Din and Alam Din are brothers. inter se and the daughter of another brother of theirs is married to a son of respondent Khushi Mohammad.
4. The houses of the deceased and the accused are close to each other an& it does not appear that any serious previous enmity existed between the parties, but it is alleged that on the day prior to the incident, while the deceased and one Meraj Din (P. W. 13) were talking in the chemist shop of one Karimuddin (P. W. 11) the respondent Khushi Muhammad came there and asked the deceased and Meraj Din as to why they had not contributed towards the payment of the salary of Lal Din, the Imam of the local mosque. The deceased and Meraj Din both replied that they would not contribute anything for the said Imam as the latter was an immoral person. This. Remark against the Imam was resented by respondent Khushi Muhammad who abused the deceased. The latter also abused Khushi Muhammad and a quarrel ensued between them in the course of which they also exchanged blows. At this stage, they were separated by Karimuddin, the owner of the chemist shop, and Mohammad Latif, a neighbouring shopkeeper.
5. According to the prosecution, the next day when the deceased was sitting in the deorhi of his uncle Gulab, situated on the ground floor of a two-storied premises, enjoying Hukka along with his father, brother and other relations, all the 11 accused entered the deorhi variously armed. Ishaq and Bavi were armed with guns, Ilam Din and Alam Din with rifles, Bashir and Siddique with hatchets and the remaining five with spears.
6. The accused with firearms stood guard at the entrance of the deorhi, Khushi Mohammad raised lalkara, thrust his spear in the chest of the .Deceased, and called upon his companions to kill the deceased. Ismail, Qaim Din and Nazir alias Jira followed by giving a spear blow each to the deceased. Sohni (P. W. 14), a consanguine brother of the deceased got up to entreat the accused to spare the deceased but he was dealt a Takwa blow on his left hand by respondent Sadiq (Siddique). Then respondent Ghulam Mohammad gave him a spear blow little below the right knee. Sohni managed to snatch the spear from the hands of Ghulam Mohammad. Khushi Mohammad moved to tackle Sohni but the latter caused Khushi Mohammad an injury on the left auxila. The respondent, Nazir, then came to the rescue of Khushi Mohammad and injured Sohni on the right arm which forced the latter to drop the spear. Sohni then took to his heals and tried to scale the wall of the deorhi. No one followed him but since B udhoo was by this time dead the attacking party left the place. Mohammad Ismail, leaving his father Rehmat (P. W. 16) at the site rushed to the Police Station ten mils away, although the evidence discloses that there was a Police Post within 4 or 5 miles and a Rangers Post and Military Post within the village itself. All along the canal the Military were also stationed.
7. After Ismail had left for the Police Station, the accused, it is alleged again returned to the deorhi of Gulab with their respective weapons but this time respondent Khushi Mohammad was riding a mare. The accused armed with firearms again stood guard outside the deorhi. The rest went in to remove the dead body. Nawab (P. W. 15) tried to resist but he was, pulled inside and caused injuries by accused Sadiq or Siddique and Bashir with the blunt sides of their hatchets. One of these injuries fell on the little right finger of Nawab which got fractured. The dead body was then removed to the thara outside, wrapped up in a white khes and placed on the mare which respondent Khushi Mohammad was riding. They then carried the dead body away.
8. Mohammad Ismail reached Burki Police Station at 5-15 p.m. And after his statement was recorded the S. I. Left for the place of the incident. He .Collected blood-stained earth from the thara outside the deorhi and from inside the deorhi, and examined the injuries on Sohni (P. W. 14) and Nawab ..(P.
9. W. 15) who were then sent to the Dispensary at Hudiara for medical .Examination. This was carried out by Dr. Najam-ud-Din Aziz (P. W. 20) at 7 a.m. On the next day. On this day, all the accused excepting Khushi Mohammad, Ismail and Alam Din were also taken under arrest. Khushi Mohammad was arrested on the 2nd of June and Alam and Ismail were arrested on the 3rd of June respectively. A mare was recovered from the house of Khushi Mohammad and the latter also led to the recovery of a blood-stained spear. It was sent for chemical examination but the origin of the blood could not be ascertained due to its disintegration. A number of other weapons were also recovered from the other accused, but as none --f them appeared to be blood-stained they were not sent for chemical examination. It is not necessary, therefore, to recount these discoveries..
10. On the 4th of June 1965, a left human leg cut near the knee joint was retrieved from Wan Khara distributary by one Mohammad Yousaf (P. W. 7) and A. S. I. Mohammad Siddique (P. W. 6) and on the 5th of June 1965 another right human leg was recovered from the same distributary by the A. S. I. Mohammad Siddique. The latter leg was identified by Mohammad Ismail, the complainant, as that of his brother Budhoo on the basis of a scar mark on the dorsum of the right foot.
11. Channan (P. W. 21) also came forward, at this stage, to depose that he had seen Khushi Mohammad, Nazir, Siddique and Alam proceeding from village Jahman to Burki canal which is also known as new canal. At this time, Khushi Mohammad was riding one mare and Siddique and Nazir were jointly riding another mare. Khushi Mohammad was carrying a human body wrapped in a bundle from which a human foot was dangling.
12. The Police also claimed to have recovered blood-stained earth from a place on the canal bank on the pointing out of Khushi Mohammad on the 2nd of June 1965.
13. The actual incident itself was deposed to by five witnesses who claimed to have been present at the time of the incident. Two of these, Sohni and Nawab were also injured in this very incident.
14. On the basis of this evidence, all the eleven accused were sent up for trial. They denied the charges and claimed that they had been falsely implicated on account of previous enmity due to the fact that complainant Mohammad Ismail had been prosecuted for smuggling at the instance of the respondent, Khushi Mohammad. The complainant Ismail, it is said, was opposed in the last elections to the Basic Democracies by the respondent Ismail and had ultimately to withdraw from the contest. The witness Sohni, it is said, had deposed against them as on the basis of information provided by respondent Khushi Mohammad a sten-gun had been recovered from his house and Gamma, another brother of the deceased, had been prosecuted for the theft of toria crop again at the instance of Khushi Mohammad.
15. The defence further suggested that Budhoo was a notorious smuggler and had probably been killed while engaged in such nefarious activities somewhere else across the Indian border and it is for this reason that his dead body had not been recovered even up to this day.
16. The trial Court considered the ocular testimony reliable as, according to it, almost all the witnesses were "disinterested and impartial". The scene of the incident was fixed by the recovery of blood from the deorhi and thara of Gulab. Acting on this ocular testimony, the evidence of motive and the recovery of blood-stained earth from the deorhi and the thara, the Court found the allegations to have been established beyond any reasonable doubt against the present respondents, but gave the benefit of doubt to the other four accused who had not been ascribed any active role in the commission of this crime.
17. The evidence as to the identification of the legs was not accepted nor was the evidence as to the recovery of blood-stained earth from the canal bank on the pointing of Khushi Mohammad. The evidence of Channan (P. W. 21) who claimed to have seen Khusbi Mohammad carrying the dead body on a mare next day was also not accepted. He was considered to be a wajtakar witness and a liar. Even the State Counsel did not rely on his evidence. The evidence of the other witnesses was held to have been corroborated by the injuries on Khushi Mohammad. The trial Court, therefore, convicted Khushi Mohammad, Qaim Din, Mohammad Ismail and Nazir alias Jira under section 302/149, sentenced Khushi Mohammad to death and the other three. To transporation for life. The other three respondents, viz., Ghulam Muhammad, Sadiq and Bashir alias Bashir Ahmad were only convicted under section 307/149 for the murderous assault on: Budhoo and sentenced to eight years' rigorous imprisonment each.
18. It might be mentioned here that all the seven respondents were also convicted under sections 148, 201, 326/149, 325/149, 449 and 450, P. P. C. And sentenced to various lesser terms of rigorous imprisonment which were all to run concurrently with the maximum sentences imposed as aforesaid.
19. The High Court agreed with the trial Court that the identification of the right leg by Ismail as belonging to the deceased and the opinion, of Dr. Mohammad Azim Qureshi who performed the post-mortem examination of that leg could not be relied upon because, as pointed out by Dr. Abdul Aziz Khan (D. W. 1), a renowned surgeon of the Ganga Ram Hospital and a Fellow of the International College of Surgeons, Geneva, nobody couldi say by examining two legs separately at different times as to whether they belonged to the same person or even as to whether they belonged to a male or a female, particularly, where putrification had already set in and scar-mar `~ tissues in the skin as well as in the underlying muscles had become difficult to identify. No doctor, it was said by Dr. Abdul Aziz, could identify two legs seen on two different days separately as belonging to one and the same person. The High Court also agreed that the recoveries of the weapons were useless. It also agreed with the trial Court as to the evidence of Channan (P. W. 21). It was held that it could not be accepted as he was clearly a waitakar witness who had not come forward until after the arrest of Khushi Mohammad to disclose what he had seen to anybody.
20. The recovery of blood-stained earth from the canal bank at the instance of respondent Khushi Mohammad was also disbelieved. Hence, the High Court found itself left only with the uncorroborated ocular testimony of five eye-witnesses of whom it is true that two were injured, namely ; Sohni (P. W. 14) and Nawab (P. W. 16) but they were both closely related to the deceased.
21. Nawab is the father of the deceased and Sohni is not only his consanguine brother but also a real brother of the complainant. Only two of the eye-witnesses were according to the High Court unrelated. Namely, Rehmat (P. W. 15) and Meraj Din (P. W. 1 3 , but even their testimony could not be treated as completely disinterested evidence or unimpeachable, particularly, since they too had falsely implicated as many as four persons and had not informed any Lambardar or Chowkidar of the village of this incident until the Police came to record their statements.
22. The present appeal has been filed by Mohammad Ismail, the complainant in the case. It is not supported by the State. The learned counsel appearing for the State concedes that this case suffers from certain inherent inconsistencies which the prosecution has not succeeded in satisfactorily reconciling. Indeed, according to him, the prosecution has not even disclosed the true manner in which the incident took place. If as many as four persons carried firearms and they all intended to kill Budhoo then he should have been killed instantly and his body carried away immediately. There was no reason for the accused persons to have first run away from the place after killing the deceased and then return 20/30 minutes later to carry away the dead body in the view of every one. This, it is said, does not suggest that the murder was a premeditated affair. In the circumstances, it cannot be said that the High Court had acted perversely or unreasonably in acquitting the accused.
23. The learned counsel has relied on the judgment to this Court in the case of Ghulam Mohammad v.
24. Mohammad Sharif (PLD 1969 SC 398) to support his contention that in a case of this nature where the dead body has not been recovered ,p there must be some other circumstance or evidence to connect the accuse persons with the crime. A conviction can no doubt be based only on the ocular testimony, but this ocular testimony must be of an absolutely unimpeachable character. In the present case, the evidence is not of such high quality that it can be safely acted upon. Each of the witnesses has been found to have attempted to improve upon the first version given by him to the Police and to have made a conscious effort to rope in as many. Members of the family of the accused as possible.
25. The learned counsel appearing in support of the appeal has, on the other hand, contended that in a case of this nature where direct evidence has been furnished by as many as 5 witnesses who were all natural witnesses and of whom two were actually injured in the same incident and two were unrelated there was no reason to diebelieve them.
26. The learned counsel has also drawn our attention to the fact that in this case the parties were related inter se and, as such, it was not likely that relations would be implicated in such a heinous crime even though there was no serious enmity between them. He too has relied on several decisions of this Court. The first is in the case of Jahan Khan v. State (PLD 1959 SC (Pak. 488) where it was held that the evidence of interested witnesses could be corroborated by the evidence of the disinterested witnesses. In this case, there were two unrelated witnesses even on the High Court's own finding. There was, therefore, no reason for ignoring the evidence of these witnesses.
27. The next is in the case of Niaz v. State (PLD 1960 SC 387). We can find nothing in this case to support the contention of the learned counsel that the ocular testimony had been rejected on incorrect principles. Indeed, in the presen case, the witnesses were clearly guilty of exaggeration and at least four persons had been falsely implicated. According to the principles enunciated C in this case, therefore, the word of such witnesses could not be made the basis of the conviction of even the others without some additional circumstance lending corroboration to their testimony.
28. This decision was explained again in the subsequent case of Nazir and others v. State (PLD 1962 SC 269) and it was pointed out that it was not an inflexible rule that the statement of interested witnesses can never be acted upon without D corroboration. The Court had first to be satisfied that no innocent person had been implicated along with the guilty. If this had been done, the ordinary prudence required that the Court should be satisfied that the witnesses so falsely implicating some were rightly implicating the others. It was, therefore, in these circumstances, necessary to took for some additional guarantee of the reliability of the witness. Normally, this guarantee could be obtained if the number of culprits mentioned was such as would be required for an attack of the kind which was the subject-matter of the proceeding or the persons named as culprits were such as might be expected to join in the attack.
29. There is no dispute as to the principles enunciated in these cases, but the question is as to whether those principles have been correctly applied in the present case by the High Court.
30. The learned counsel appearing for the respondents has in an elaborate argument supported the reasonings of the High Court on each and every aspect of the matter. He has pointed out to us that the prosecution story is so palpably improbable that no reasonable person can be expected to accept it. It is emphasised that a very peculiar circumstance in this case is that although in broad daylight as many as 11 persons attacked the deceased in the deorhl of his uncle armed with deadly weapons, nobody raised any hue and cry or called out for help. The house of Gulab, as admitted by Ismail (P. W. 12) himself, is in the middle of the village and is surrounded by several other houses, yet the witnesses would have us believe that no one from these houses came out even when they saw the accused persons boldly marching down the street either at the time of committing the crime or at the time when 20 minutes later they came back with a mare, dragged out the dead body, placed it on the Thara, wrapped it in a khes, placed it on the mare and marched away from the place towards the new canal.
31. It is further said that it is not without significance that Ismail, the first informant, himself did not go either to the Rangers Post or the Military Post situated in the village or to the nearest police post situated at Heir, only 4 or 5 miles away, but went to the police station 10 miles away to lodge the first information report.
32. It has been brought out in evidence that the village of Jahman is a very big village and has as many as 7 Lambardars of whom at least two live in the village itself. Even so no one from the house of Gulab went to any one of these Lambardars. The owner of the house Gulab himself was, it is said, not present at the time but his son A.I Mohammad, though cited as a witness, was ultimately abandoned. The prosecution witnesses, it is further alleged, tried to suppress the real enmity between the parties and set up a false motive which has been disbelieved by both the Courts below.
33. Rehmat and Meraj Din, the so-called unrelated witnesses were also not natural witnesses. It has been elicited from Rehmat that he had no particular reason to be there. He had only by chance arrived on the scene about 10 minutes before the incident "while loitering in the village". In fact, he was not a habitual smoker of hukka nor even a habitual visitor of the deorhi. He had admitted before the committing Court that this was the first time that he had smoked a hukka in his life.
34. The house of Meraj Din, the other unrelated witness (P. W. 13), was situated in a different Patti. He admitted that he was not on visiting terms with the complainant side, but that he went there whenever he was required for some work as he was a Mistri. He was not regularly engaged by the complainant side. It was only when their own blacksmith was not available that they engaged him.
35. Hence, he too had no particular business with the deceased or any other P. W. At the time of the incident and on his own admission he "had gone to the site just by the way for a smoke".
36. His disinterestedness is also doubtful. He was one of the persons who had been accosted at the chemist's shop by Khushi Mohammad and asked a: to why he had refused to contribute towards the payment of the salary of the village Imam and he admits in his examination-in-chief that he had replied in the same manner as the deceased. It is surprising, therefore, that he should have been left untouched when Khushi Mohammad turned up with his relations to avenge the incident in the chemist's shop. This, it is said, would seem to suggest that he was not there at all. In any event it can, in the circumstances, hardly be accepted that he was a completely disinterested witness.
37. It is unnecessary to go through each and every circumstance, so ably pointed out by the learned counsel for the respondents, which casts a serious doubt on the prosecution story, but it will be sufficient to say that the salient features to which reference has already been made are sufficient to establish that the High Court neither took a perverse view of the evidence nor acted unreasonably in acquitting the respondents. The prosecution case bristles with improbabilities which has not been resolved by the prosecution. The ocular testimony was neither consistent nor of such a character as to inspire confidence. In the circumstances, we cannot consistently with the principles laid down by this Court repeatedly in they case of Siraj Din v. Kala (PLD1964SC26and Bashir Ahmad v. Mohammad Azam PLD1969SC469 say.that the acquittal by the High Court was unjustified.
38. Apart from the fact that there was considerable delay in the lodging of the F. I. R. And the prosecution witnesses bad been guilty of introducing embellishments in their subsequent versions in the trial Court and suppressing material facts. In the F. I. R. It was not disclosed that Khushi Mohammad had also received an injury nor was the history of the previous enmity, now amply established by the evidence, given. Even when they tried to explain the injury on Khushi Mohammad at the trial they did so in such an unconvincing manner that the medical evidence falsified their testimony. It is difficult to believe that if Sohni had snatched the spear from Ghulam Mohammad and injured Khushi with it he would have been allowed to escape. The evidence, however, is that no one followed him when he ran away and scaled the wall. Similarly the story of the accused returning later to carry away the dead body appears to be fantastic. The manner in which the incident took place has not been truthfully disclosed by these witnesses. These and the other circumstances to which reference has earlier been made raised serious doubts as to the whole prosecution case and if the High Court has given the benefit of these doubts to the accused can it be legitimately argued that the High Court has acted unreasonably ? We think not.
39. This appeal', is, accordingly, dismissed. The respondents will now be discharged from their bail- bonds and set at liberty forthwith. Before parting with this case it has also to be pointed out that during the pendency of the appeal in this Court, the respondent Khushi Mohammad, and his son Nazir had died. The appeals against them have, therefore, in any event, abated and are dismissed as such. The application for bail filed by Khushi on the 5th of June 1971 has, in the circumstances, now also become infructuous.