TUFAIL ALI A. REHMAN, C. J.-Seventeen persons were tried by the learned .Additional Sessions Judge, Larkana, on the charges under sections 148, 302, 149, 324 and 149 of the Pakistan Penal Code and sections 13-D and 13-E of the Arms Act ; their names are as under:- 1.Pissand son of Bachal.
2.Muhammad Saleh son of Azizullah.
3.Qadan alias Kadan Jurio son of Wali Muhammad.
4.Muhammad Salik son of Khudadino.
5.Khudadino son of Muhammad Sadiq.
6.Mithal son of Lal Khan.
7.Mian bux son of Wali Muhammad.
8.Karamullah son of Sanwai.
9. Soihro son of Sohharo.
10. Arzi son of Haibat.
11. Liaquat son of Mangio.
12. Abdul Nabi son of Haji Abdullah.
13. Wali Muhammad son of Sherdil.
14. Allahjurio son of Sherdil.
15. Gulan son of Abdul Nabi.
16. Kaman son of Sanwal.
17. Sadiq son of Khudadino.
Of these 17 persons the learned Judge acquitted four namely:- 1.Muhammad Saleh son of Azizullah.
2.Khudadino son of Muhammad Sadiq.
3. Mithal son of Lal Khan.
4. Arzi son of Haibat.
The remaining 13 persons were convicted under section 148 and under sections 302 and 324 both read with section 149 of the Pakistan Penal Code. For the offences under section 324 and 148 be sentenced each of the accused persons to two years' rigorous imprisonment but for the offence under section 302 read with section 149, of the Pakistan Penal Code he sentenced Pissand, Muhammad Dalik, Karamullah, Sojhro, Liaquat, Abdul Nabi, Wali Muhammad and Muhammad Sadiq to death, while the others to transportation for life. All the sentences of rigorous imprisonment including the sentences on the condemned prisoners, if the death sentence was not confirmed by this Court, were ordered to run concurrently. The present is an appeal against these convictions and sentences; the record of the case is also before us for the purposes of confirmation of the death sentences of the condemned prisoners.
2. At the conclusion of the arguments in this case I was unable to hold that the prosecution had made out any case beyond reasonable doubt again any of the appellants other than Pissand, Qadan alias Kadan, Jurio and Muhammad Salik that is to say appellants 1, 9 and 3 respectively. In regard to these three, although I considered them guilty of some offences, I was not persuaded that they were guilty of the offence of murder and I thought that the offence of which they would be guilty would be either punishable under section 304(1) read with section 34 of the Pakistan Penal Code or under section 326 read with the section 34 of the same Code. From the point of view of the assessm ent of the sentence it male little difference under which of these sections they were to be convicted since either offence is punishable with a maximum of transportation for life or 10 years' rigorous imprisonment. Accordingly, section 367(3) of the Criminal Procedure Code permitting such a course of action, I propos-d that they be convicted alternatively under the two sections and, deeming the sentence of 7 years' rigorous imprisonment a proper sentence under all the circumstances of the case, I proposed to sentence them to that period of rigorous imprisonment.
My learned brother, Mr. Justice Fakhruddin, concurring in this course of action we announced judgment to that effect, against these three appellants while acquitting the remaining ten leaving our reasons to be recorded later. What I am about to say is the record of reasons which induced me to follow this course.
3. The prosecution party were resident at the relevant time of a village called Pirajaj in Taluka Warab in the district of Larkana. The accused party also are residents of the same village, or in some case, of the village of Jamak or Wagan, which, it would seem, are so very near the village of Pirajaj as to make no very great difference. The incident itself took place at a distance of about 300 paces from village Hithayan Boohar which is about a mile from the village of Pirajaj and about six miles from the Drigh Police Station. The accused party are all entirely related inter se though it is unnecessary to set out the specific relations as also is the prosecution party inter se; I use the expressions Accused Party", "Prosecution Party" as including not only the actual accused persons in this case or the deceased persons and the witnesses, as the case may be, but others whose names might transpire in the context of previous motives but, from general description, must be excepted, accused Muhammad Saleh son of Azizullah Tunio who is among the four persons acquitted by the learned Judge. Both the accused party and prosecution party it will be noticed are Chandios by case while this Azizullah is a Tunio. It would appear, and indeed it is the prosecution case as to the motive, that some land belonging to one Gujran was being cultivated by the prosecution party. Thereafter Khudadino, one of the acquitted accused and father of Muhammad Salik, an accused who has been sentence to death and who is the first Informant in the counter-case took the land or claimed to have taken the land from Gujran for cultivation on lease. Accordingly, he, Khudadino, asked the prosecution party there--after to continue to cultivate that land but to treat him as the landlord and to take seed from him, but the prosecution party entirely refused to do so and they said that neither would they cultivate the land on behalf of Khudadino nor would they allow anybody else to do so. On this account there was apparently a fight between the two parties and this had resulted in counter-cases which were pending between them in the Court-of Resident Magistrate, Kamber, when the present incident took place.
4. On the day of the incident that is 5 September 1970, a Kabaddi Match was scheduled to take place in the village of Boohar at about Biprihri time. From amongst the prosecution party, according to themselves, three deceased persons Qurban, Anwar and Allah Jurio and two of the witnesses namely, Lal Bux and Dino left their village for witnessing the Kabaddi Match. Now these other witnesses are the only two injured persons upon the prosecution side and it may well be that although they expressly mention only these five in the first instance, others from among the prosecution party might also have gone for the some purpose; indeed they themselves mention Ghulam Hussain and Lutif A.I who also came along to see the Kabaddi Match but they say that these two followed behind it, might be noticed that of these Lutif A.I is, but Ghulam Hussain is not, a prosecution witness. Although the prosecution witnesses do not expressly say so, it would not seem unlikely that the accused party also knew that a match was going to be held at Boohar and that some of them also might have come there for the purpose of seeing the match. Be that as it may, the case of the prosecution then goes on to the effect that, after having witnessed the Kabaddi Match at about Mirri Tipahri time, which would mean three or four p.m. The three deceased and the two injured left for their village on foot and were followed again by Ghulam Hussain and Lutif A.I.
When they have gone some distance, which is variously described as 300 or 400 paces from the place where the match was played, the 17 accused persons came out from an ambush in an uncultivated piece of land and were identified by the witnesses because they were previously known to them. So far as Muhammad Saleh Tunio is concerned however there is a discrepancy as to his presence between the evidence of the various witnesses and the first information report to which I shall revert). Of the accused persons Khudadino is said to have been armed with a pistol, Mithal with a gun while the remaining were all armed with hatchets; on any version of the matter Muhammad Saleh Tunio was not armed at all. Khudadino is then said to have fired in the air and instigated the remaining accused persons to kill Lai Bux, Allah Jurio, Anwar, Qurban and Jumo. All the accused are then said to have pounced upon the prosecution party and inflicted several and severe blows with the sharp side of the hatchets as a result of which it said that Anwar and Qurban died on the spot, while Allah Jurio, Lai Bux and Jumo were injured. Allah Jurio is also a deceased person but it is not alleged that lie died at the scene this again is a point which is controversial and I shall deal with the controversy at a more appropriate stage. On the cries of the victims Latif A.I and Ghulam Hussain ran up and they also saw the whole incident with their eyes and entreated the accused party to stop fighting as a result of which the accused finally went away taking with them their weapons. Some of the accused party were also injured and quite severely and these injuries are sought to be explained in the deposition of the witnesses as having been inflicted by them in pure self-defence, but no such explanation was put forward in the first information report which indeed makes no mention of any such injuries at all. Latif A.I was then deputed to go to inform Shah Nawaz who is a relation of the prosecution witnesses and also their Naikmard. Lutif A.I apparently went to Shah Nawaz and, having informed him of all the facts, brought him back to the wardat. By this time it is alleged that it was already Somhani time. Allah Jurio was nevertheless stated to be conscious and he, as well as Lai Bux Jummo, are stated to have narrated the entire incident to Shah Nawaz giving him also names of the accused persons. Shah Nawaz then sent for some cots from the village upon which the injured persons were placed and then proceeded towards the Drigh Police Station. At the Khosa village, which from the context, it is clear is on theth way from the scene to the Drigh Police Station he hired a bullock cart in which the injured persons were placed, the rest of the journey was accomplished, the injured being in the bullock-cart, and the others proceeded on foot. They reached Drigh Police Station at 3 a.m on 6th September 1970, and at that time the first informa--petition report, lodged by prosecution witness Lai Bux, was registered and recorded by Assistant Sub-Inspector Police, Muhammad Nawaz.
5. Muhammad Nawaz then accompanied the witnesses to the scene of offence and commenced an investigation. Before doing so, however, at the police station itself recorded the statements of Jummo, Allah Jurio and Shah Nawaz. Be it noted that Allah Jurio is, still stated to be conscious and the statement that he gave them to the police has been treated in the case as his dying declaration. However, he was then sent to tile Kabbar dispensary for examination but died on the way before he could reach the Dispensary. Nothing of note has been done by the Assistant Sub- Inspector at the scene but that would seem to be quite understandable because, in the meantime, a counter first information report had been registered by the appellant Muhammad Salik at 11 p.m.
And having been registered by the S. H. O. Himself, namely Saeed Ahmed, the latter was already at the scene and the Assistant Sub-Inspector of Police thereafter handed over the papers to him for further investigation of both cases. There is no controversy between the parties as to the place where the incident occurred. According to the both first information reports and according to the case of both the parties at the trial the scene was the same. The case put up in the counter first information report was that the appellants Muhammad Salik accompanied by Kadir and Muhammad Pissand had come to see the match and, having seen it, were coming back towards their own house accompanied by the accused Muhammad Saleh son of Azizullah Tunia when they were set upon by 8 persons namely Adam, Misari, Soomar. Qurban, Anwar, Laloo, Allah Jurio and Jumo. It would be noticed that from amongst his own side Muhammad Salik mentions himself and Muhammad Pissand from amongst those who were eventually accused in this case besides Muhammad Saleh son of Azizullah Tunio. From amongst those who are now either prosecu-- petition witnesses or deceased persons in this case he mentions only Qurban, Anwar. Allah Jurio and Jummo. He claims that they were attacked and given injuries with the sharp side of the hatchets and that upon their cries several persons came up, among whom might he mentioned particularly Karamuliah, who is now among the convicted accused, and he then goes on to state that they narrated all these facts to one Maulvi Abdul Khaliq and then came to lodge the report.
The report, of course is substantially earlier in point of time than the one which was made by the first informant Lai Bux in the present case. The motive given for the incident is also the same as is assigned by the prosecution. During the course of the investiga--petition no recovery was made excepting that the licensed guns of the accused Khudadino and Mithal were produced as also hatchet from the accused Mian Bux but this latter had not been found by the Chemical Examiner to be stained with blood. On different dates the accused persons in this case as also those in the counter case were arrested and both the cases sent up for trial. These proceeded before the same learned Judge and, although the judgment in this case does not say so, we are informed at the bar that in the counter case the accused persons were acquitted and indeed the reasoning of the judgment in the present case would seem to indicate that that must have been so.
6. In dealing with a case in which an appeal lies both on law as well as on facts it is only proper that an appellate Court should give great weight to the findings of the trial Judge who had the great advantage of seeing and hearing the witnesses giving their evidence and of observing their demeanour. The appellate Court will not lightly substitute its own appreciation of the evidence for that of the trial' Judge. But that is of course not to say that the findings of the trial Judge are, in any sense, conclusive or binding on the appellate Court. Where the appellate Court comes to the conclusion that those findings are vitiated by the application of improper or incorrect modes of assessm ent or the failure to notice important aspects of the case or to give them their due weight the appellate Curt will not, and must not, refuse to give effect to its own conclusions. I am not of course attempting to say that these are only reasons which would justify an appellate, Court in reversing a trial Court, but I am emphasising the duty of an appellate Court to render a judgment which it considers just upon the case often giving full weight to the opinion of a Judge who has the advantage over the appel--late Court of having seen the case grow and the witnesses give their evidence. Where sentences of death are involved the duty of the appellate Court is even greater; it is not merely a Court of appeal but is also a Court of confirmation and is, to that extent, performing functions more akin to those of a trial Court although on evidence nevertheless which is not given before itself. In the present case I have reached conclusions so entirely different from that of the learned trial Judge not only upon the question as to what the decisions of the case are to be upon almost every point relating to the credibility of the witnesses and the findings of fact as to what actually occurred, that I think that the more convenient course to follow in this case would be first to examine the judgment of the learned Judge and the reasoning upon, which the material part of it proceeds before I go on to state my own assessment of the evidence and the results to which that assessm ent have led me.
7. After a narration of the prosecution case and that of the defence the learned Judge has framed, as was only proper, the points for considera--petition. The second of these which he considered first he has couched in the following language: "Whether murders of Anwar, Qurban and Allahjurio were committed by intentionally causing their deaths by inflicting them injuries with sharp sides of hatchets as alleged?"
Now of course although this was an important question for, unless the trial answered in the positive, there could be no question of murder at all in the present case, it was for the purpose of judgment almost of a formal character. Toe death of these three persons and the fact it was caused by the injuries alleged could hardly in the circumstances of the case, be denied. Nevertheless quite apart from the elaborate statement of the medical evidence the learned Judge recites the evidence of the eye-witnesses as also the dying declaration to which I have earlier referred, the evidence of the Constable who took the corpse to the dispensary and the evidence of the inquest report as also the fact that the blood-stained earth was recovered from the scene of offence duly sealed and, after examination by the Chemical Examiner, found to be stained with human blood. After having reached the conclusion that the question must be answered affirmatively the learned Judge goes on to observe "The aforesaid evidence adduced by the prosecution is natural and con--vincing and at all been discredited and challenged by the accused side. So under these circumstances I place my implicit reliance on the afore--said evidence adduced by the prosecution. In the result my findings on this point are positive."
Now, I am wholly unable to understand, how merely because the evidence of the eye-witnesses was corroborated and corroborated conclusively by the medical evidence upon the question that the deceased persons had indeed met their death in homicidal fashion the learned Judge is on that account able to "place his implicit reliance on the aforesaid evidence." It seems to me a little premature at this stage to have recorded his entire belief in the veracity of the eye-witnesses. That upon the particular question then under consideration they could be fully believed I entirely agree.
That as a result of the examination of the rest of the case the learned Judge might have been able to rely upon that evidence also is possible but it is entirely beyond any known canon of reasoning to hold that, there having been established to the witnesses of truth on this point, they were necessarily therefore witness of truth on all points. Possibly the learned Judge meant only that to the extent death by homicidal means was required to be proved he is willing to believe the prosecution implicitly and to that extent of course the reasoning suffers from no flaw but the language in which it was expressed might well have been more happily chosen. Curiously enough .However, later in the judgment upon a far more crucial question, namely whether the deceased Allah Jurio could have given a dying declaration at all he rejects the medical evidence which was to the effect, that the death must have taken place within a few minutes of the injury being inflicted, upon the flimsiest of reasoning ; indeed the reason is no more than this that it conflicts with the oral evidence.
8. The learned Judge then describes the injuries which were found upon the injured witnesses Jummo and Lai Bux and this might be a con--venient stage to summarise what the medical evidence in this case was. The deceased Anwar had as many as 8 incised injuries, most of them extremely serious and covering almost his entire body, being on the head, the cheek, the chest, the neck both the arms, the ribs and one of the thighs, Allah Jurio bad three incised injuries, one on the chest, one on the left thigh and third on the left side of the back which extended from the third thoracic vertebrae towards the left scapula cutting the 3rd, 4th and 5th ribs leaving the chest cavity open. The deceased Qurban had five injuries; the most serious of these was an incised wound 7' x 2' cutting the muscles of the vertebral column and the spinal cord at the level of the first thoracic vertebral up to the 4th thoracic vertebra and extending from the left side of the back towards right side and this injury the doctor described as being individually sufficient to cause death in the ordinary course of nature. The other injuries were comparatively less serious though they could hardly be described as being simple. They were on the left shoulder joint, upon the left side of the chest, on the lateral side of the left shoulder joint, upon the left side of the chest, on the lateral side of the left axilla and on the root of the right axilla. In regard to the other two deceased persons also there was of course at least one injury which was sufficient in the ordinary course of nature to cause death, though most of them were extremely serious. The injured Jummo had four injuries, all of an incised character but while their dimensions were large enough two of these were only skin deep or muscle deep but cartilage of the upper portion of the right ear and another was 4' deep and extended from the right eye to the right ear.
9. Of the accused persons Qadan, who had also been described as Kadan Jurio had a simple injury 2 -- ' x 1' muscle deep on the left bids of the neck while the accused Pisand had four injuries three of which were grievous; they were an injury 8' x 1 -- cutting the muscle and the vertebrae exposing the spinal cord and extended from the first libar vertebrae up to the sacral portion of the right illiac bone and. An incised wound 3' x 1' cutting the muscles of the left scapula, had left shoulder joint and one which was 2' x 1' cutting scalp deep on the right side of frontal bone extending from the forehead up to right eyebrow. The fourth which was simple was -- ' x -- ' muscle deep and upon the bridge of his nose. The accused Muhammad Salik also had three injuries of which one only was grievous being 9 -- ' x 2 -- cutting the muscles of the head of left femur, left scapula and clavicle shoulder joint and while the other two on the lower jaw and right ear were simple in character.
Finally the 4th of the accused to be injured, who has been acquitted, namely Muhammad Saleh Tunio had one injury which was simple being an incised wound 2' x -- ' muscle deep on the lower 1/3 of the left arm.
10. Having taken up the main questions for consideration in this case after having recited the medical evidence, though without stating the injury upon the accused persons the learned Judge gives a summary of the evidence of the eye-witnesses and that of Shah Nawaz, who claims to be a corrobora--tive witness, and at the end of that paragraph, not as a recital of the prosecution case, but as a finding though without any statement of reasoning, the learned Judge observes that the first informant, the deceased Anwar and the deceased Qurban were armed with hatchets and they inflicted blows with hatchets to the accused persons in exercise of their right of private defence of their persons. Now, in this case it being obvious that both sides bad sustained injuries the question of the examination of the right of private defence certainly arose but nowhere throughout therd judgment, excepting in this passage and in this perfunctory fashion does the learned Judge deal with this question at all. His reliance upon the - prosecution witnesses' evidence is implicit indeed.
11. The learned Judge goes on then to mention the fact that very many details are now given in the course of the depositions during the trial as to who struck whom but that all these details are missing both from the first information report and from the statements of the witnesses given to the police during the course of the investigation. If the learned Judge had then said that, in the course of an incident of this kind, it is usually not possible to be precise about the attribution of specific parts to each culprit and that, if later the prosecution witnesses attempt to give such details, then this is not a matter which necessarily affects their veracity unless it can be shown that the purpose of the attribution was to cover up some other fault or was motivated by a desire to exaggerate the case against any one individual culprit, I should probably not have disagreed with him on that score. But there was more here guns were said to have been used and fired in the air but, admittedly; no body, either on the prosecution side or on the accused side, received any injury whatever, excepting by a hatchet. What is more, the person who is first said to have used the gun is said to have instigated the others not to leave the prosecution witnesses; if, as is the prosecution case, the accused party bad come there and were waiting in ambush for the purpose of murdering the prosecution witnesses, what instigation did they need? If they did, did it had to be given by firing a shot into the air? The learned Judge, however, winds up this part of the discussion by observing:-- "I find that it is a common practice in this part of the country to exaggerate the facts and to implicate as many relatives of the real accused as possible. Under these circumstances it is the duty of the Court to find out to exaggeration and to discard those exaggeration and to find out the real facts. The fact that the witnesses make exaggerations in connection with the incident does not mean that the evidence of the witnesses should be disbelieved in to (sic). Under these circumstances it is the duty of the Court to find out the real facts and to believe the witnesses on the real facts and discard the exaggerations."
But then the learned Judge is really holding that these very witnesses are not only exaggerating or, at least, capable of exaggerating but even of implicating as many relatives of the real culprits as possible. It is difficult to reconcile this finding with his earlier finding, repeated over and over again in the judgment that he is able to place implicit reliance upon the evidence of the witnesses.
12. It is strange that the accused person who is said to have fired a pistol and thus instigated the remaining accused persons to commit this murder has been acquitted by the learned Judge, indeed in the very para--graph which follows that which I have just quoted. I do not myself disagree that Khudadino ought to be acquitted. But that would be, as I would presently show, upon the principle that there being the danger of exaggera--petition in this case, one ought to look for corroboration, external to the evidence of the eye-witnesses before one convicts any one individual accused person; upon the reasoning that the learned Judge has given I can see no reason why he made no exception of the accused Khudadino.
13. He then goes on expressly to state that this version of the prosecu--petition, meaning the instigation by Khudadino is so highly exaggerated that he cannot believe it. In clear terms he has held that the prosecution party have exaggerated the case by implicating Khudadino and therefore acquitted him. It seems to have escaped the notice of the learned Judge that, if he is acquitting one accused person upon the ground that the witnesses have, and not merely, could have, falsely implicated him, then surely he incon--sistent in his reasoning if he convicts any body else upon the testimony of the same eye-witnesses alone without any external corroboration whatever.
14. He then deals with the case of accused Mithal and Mitbal too, it is to be recalled, is said to have used a gun at the deceased Anwar who of course had no gunshot injury. Upon much the same reasoning as in the case of Khudadino therefore he acquits Mithal also, indeed holding expressly that Mithal was not even present at the wardat; that this affects the veracity, not merely of the ocular testimony but the dying declaration of Allahjurio, who has mentioned Mithal as being present at the scene and as having fired his gun at deceased Anwar again seems to have escaped the notice of the learned Judge altogether.
15. In precisely the same fashion be then deals with the case of the accused Arzi, who too was said to be armed with a pistol which he is said to have fired at Allahjurio and which, according to the prosecution witnesses resulted in injuries on Allahjurro, but Allahjurio's corpse of course bore no mark of firearm injury. Trusing the evidence of the Medical Officer rather than that of the eye- witnesses he therefore rejects this part of the evidence. Although the learned Judge does not mention it in this particular paragraph, the dying declatation of Allah Jurio however does mention that Arzi fired at him, namely Allah Jurio. Now while it might have been possible to argue that Allahjurio could not observe the effect of the firearm shot upon Anwar surely, in his own case, it might be reasonable to expect that he would have a clearer recollection. Again the learned Judge comes to the positive conclusion that Arzi was not present at the scene.
16. Finally the learned Judge observes that none of the eye-witnesses or the corroborative witness, Shah Nawaz, mention Saleh Tunio whose name does not occur in the first information report either.
Again he comes to the positive conclusion that this particular accused person did not participate in the present incident and therefore acquits him. It is a matter which provokes some curiosity how accused Muhammad Saleh's name came into the case at all if none of the eye-witnesses mentioned him or even the corroborative witness, Shah Nawaz, and it is the theory of the learned counsel for defence, who appeared before us on behalf of the appellants, that he was deliberately made an accused person so as to deprive the accused of the opportunity of examining him as a defence witness. It is to be remembered that he i3 not a Chandio but a Tunio by case and learned counsel claims that his evidence would have supported the defence and could have relied upon them as being that of a disinterested witness. It did riot come up on the record for me to reach any positive finding but certainly learned counsel's argument does appear to me to be plausible.
17. Having thus acquitted four of the accused persons, not merely upon some doubt as to their presence or participation in the incident, but upon a far more positive finding that they were not present, even though one of them,, namely Saleh Tunio was injured. The learned Judge does not proceed to consider whether these matters affect the veracity of the witness as to the remaining accused persons. Instead he then goes on to discuss the conflict between the medical evidence as to time of the death of Allah Jurio and that of the eye-witnesses and its effect upon the likeli--hood of having made a dying declaration at all. According to the doctor Allahjurio probably died within a few minutes of the injuries that he sustained. Clearly, if this was so, there could be no question of his having given a dying declaration to the police at Drigh. No question whatsoever had been put .To the doctor, either by the counsel for the prosecution or by the Court, much less by the defence, who of course would not have been interested in putting such question, that this particular opinion of his was false or dishonest. Yet, upon no basis whatever without either having given the doctor any opportunity to explain this or stating any reason why this statement should not be believed, the learned Judge, in bald terms, says that he will not believe the doctor. He then goes on to say that he is fully convinced that the doctor has given this obliging statement in order to favour the accused. The reason he gives for this is that Allahjurio undoubt--edly gave a dying declaration and therefore the medical evidence must necessarily be false. While I am not suggesting that doctor can never lie, in the circumstances of this case this seems to be not only, wholly unreason--able but extremely special pleading by the learned Judge. It is normally to test the veracity of the eye- witnesses by the consistency of their evidence with e medical evidence. This must be a rare case indeed where, without any foundation being laid for suggesting dishonesty in a doctor in the credibility of his evidence the converse course has been adopted. The doctor's evidence is otherwise perfectly in accord with the known circumstances of the case; he per--formed the post- mortem examination from 9 a.m. To 10 a.m on 6th September 1970, and gave it, as his opinion, that death has occurred within the previous 24 hours. That certainly is in accord with the time given by the prosecution witnesses themselves as to the attack; common experience shows that, if the doctor could have narrowed the time interval further, he would have used some such expression as "within the last 4 hours" and not merely said within 24 hours. The post-mortem examination report mentions the presence both of post-mortem rigidity and post-mortem lividity; matters which again fit in with the time of attack though they are not inconsistent with what the witnesses say about the time of death. I am wholly unable to understand why, on a point like this, the learned Judge should have adopted so curious a piece of reasoning and condemned the evidence of a professional man without any basis whatever. Yet this very paragraph ends with the expres--sion: "So under these circumstances I place my implicit reliance on this evidence of these witnesses".
The expression is growing somewhat monotonous on my ears but I cannot help feeling that the learned Judge's determination to place implicit reliance upon the prosecution witnesses was not to be shaken by any circumstance whatever.
18. Having thus dealt with the case of the persons whom he acquitted and having discussed the dying declaration, the learned Judge goes on to record the finding that the remaining accused persons are therefore guilty. It is only after that he stated that the evidence of the witnesses is natural and convincing and has not at all been discredited by the accused; upon this statement he does not enlarge but I can only feel that he has treated with the trustworthiness of these witnesses as so axiomatic that, except where the accused persons have, in the opinion of the learned Judge, been able to prove their innocence, it follows that the rest are guilty.
19. He then mentions that he might have said before, although in my opinion it does not very much add to the weight of the evidence for the reason which the learned Judge advances for accepting their evidence, that the names of these accused transpire in the first information report and that 'the persons are known to the witnesses' and the incident took place in the broad daylight, there can be no question of a mistake in identity. But the same reason applied as much to the acquitted accused and this only confirms my belief that he has acquitted only those whom he considered as having established a case of innocence rather than convicted those about whom the prosecution had established, beyond reasonable doubt, a case for conviction.
20. Almost as an afterthought he then takes up the question of the delay in lodging the first information of the crime. It will be recalled that the incident occurred at Mirriri Tipahri time, which is about 3 or 4 p.m. And that the Drigh Police Station is about -six miles away. True it is that according to the witnesses they first went to Shah Nawaz, their relative and Naikmard, and brought him back to the scene of offence; considering the fact that Shah Nawaz is said to live two miles away from the scene of offence, this would add four miles to the total distance to be covered making it, in all 10 miles. It is also true that at Khosa village bullock-carts were hired but it is clear on the record that this village is on the way from the scene to Drigh Police Station, although the distance is not specified, Even if one takes that time of Mirriri Tipahri as four p.m. Rather than three p.m. Is thus a laps of 11 hours in covering 10 miles. Due allowance being given to the concentration that must have caused to the witnesses and the slow pace at which the bullock-carts must have travelled there yet seems to me to be a great deal of unexplained delay in lodging the first information report. As to the effect of this I should presently come, at the moment I am only dealing with the manner in which the learned Judge has considered the case and he winds up his discussion on the point by stating "a little delay, if any made by the prosecution in lodging the first information report of this crime, has been well explained by the prosecution by giving a very plausible and cogent explanation "What this plausible and cogent explanation" was, we are not told.
21. Having then recorded these findings, the learned Judge moves on a discussion of the defence case or rather to a discussion of the counter-case. He has quoted freely from the evidence of the witness in that case although it was not brought on the record of this case. He criticises the evidence in that case as being full of contradictions, contradictions of no more serious a character than those which he has brushed aside in the present case. Whether he was right in assessment of that evidence or not is not the question before us just now. There is no appeal from the counter- case and we are entirely unconcerned with the result of that case. I am, however, amazed that the learned Judge should have thought it was not a part of the record of this case. The remarkable, thing however, is that, quoting from the evidence of that case, he comments upon the evidence, in that case, of Muhammad Saleh Tunio, whom he is acquitting as an accused in this case, and observes:- "So far the counter-case is concerned, I find that mast material and important witness who is au eye-witness to the incident of counter-case is Muhammad Saleh Tunio. He is the most independent and disinterested witness. He is neither connected with the accused party nor he is con--nected with the prosecution party. He in his evidence has not supported the prosecution version in the going to his village and he travelled a distance of about 60 or 70 paces when he in his evidence says that after seeing the Kabaddi match at village Boohar he was going to his village and he travelled a distance of about 60 or 70, paces when he saw many persons standing there who cried out that fight was being taking place and accordingly he went running in the crowd. He received injury on his left arm but he is not able to say as to who caused him the injury. So I find that this most material, important and disinterested witness has not supported the prosecution and has not implicated the accused in the counter-case."
I can only say that it is remarkable that he should have been able (1) to hold in this case that the evidence of Muhammad Saleh Tunio did not support the prosecution in the counter-case and (2) that on that account the defence in the present case failed. As I have stated earlier, at no place in the judgment; has he given any consideration whatever to the case which the defence put forward, namely that of the private defence.
22. Having discussed the judgment of the learned Judge at some weary length it is now my duty to consider, upon the evidence, what case the prosecution has been able to establish against any of the accused persons or at least, such of them as are appellants before us. Much of what I would have to say upon these points is substantially covered by discussion of the learned Judge's judgment and I can therefore afford to be brief and refrain, except where absolutely necessary, from reiterating what I have already said. Before I go on to deal with the merits of the case it is necessary to refer to a question that was raised before us as to the admissibility of the evidence of witness Shah Nawaz: The witness was admittedly not an eye--witness having been informed by Lutif A.I and his evidence is admissible, if it is admissible at all, under the provisions of section 157 of the Evidence Act which reads as under:- "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."
It would be recalled that the incident took place at about 3 or 4 p.m. And that Shah Nawaz came to the scene at about Sohnani time, which consider--ing that the incident took place in the month of September I would put at about 10 p.m; since he came from a distance of 2 miles he was probably informed at 9 p.m. Or a little later. Some five hours or so, therefore elapsed between the crime and the time when he was informed and it was therefore argued that this was not "at or about the time when the fact took place", within the meaning of section 157 9f the Evidence Act. Reliance was placed in this connection upon the Supreme Court decision in Habibullah v. The State (PL D 1969 SC 127). The incident in that case took place at 9.30 p.m. The sole eye-witness in the case was one Khuda Bux and the question raised in Court was, whether the evidence of one Muhammad Hassan Jamali, who had come to the scene and had been informed by the eye-witnesses, was admissible even though admittedly he had informed others earlier who were not produced by the prosecution.
Two of their Lordships who heard the case held that the evidence was not admissible. His Lordship the Chief Justice, who disagreed with the majority on this question, held that the evidence was admissible though he agreed that the weight of the evidence was nil. Mr. Justice Sajjad Ahmed Jan delivering .The judgment of the majority observed:- "The former statement of a witness to furnish corroboration under section 157 can be proved only if it was made at or about the time" when the fact took place. The factor of these mentioned in this section is very important to serve as a safeguard against fabrication of false evidence. The words "at or about the time" mean that the statement must reasonable opportunity for making it presents itself. The object is to, permit the use of such statements which are made at the time when the mind of witness is still so freshly connected for reflection passes between the event and the subsequent statement, the latter is not only useless, but on account of dangerous to allow its admission."
Now left to myself, I should have thought the words "at or about the time used in the section were used deliberately in preference to a more precise phrase so that it should be up to the Court to decide, in each given case, whether the case at which the statement was made could be included in the period of time so described, Their Lordships who constituted the majority in the case, really thought that the period of time was intended to be prescribed with more accuracy and within narrower limits; that the time is to be, within certain limits, elastic is a thought which appears to have weighed in the minds of their Lordships is evident from their use of words "when a reasonable opportunity for making it presents itself." Now it may be that in a given case such an opportunity is not presented for a long time. I humbly venture to think therefore, that the language used by the Legislature was, although of course intended to describe a period of time, was yet intended to make allowance for the opportunity to lack of it for the state--ment to be made. A case is after all authority for what it decides and upon the fact found; it is evident from the report of the case that there were other persons to whom the witness Khuda Bux is stated to have imparted the information earlier and that they were not examined by the prosecution. Indeed the prosecution alleged that the witness came from the scene to the village, passing through, the village of the witness to whom the statement was subsequently made and passed by the otak of this very witness, raising cries but failed to contact him. Speaking with a great sense of deference, it seems to me that these facts might have played a not inconsiderable part in inducing their Lordships to hold that the evidence was inadmissible.
His Lordship the Chief Justice on the other hand, while agreeing that the appeal should be allowed, dissented, from the majority that the evidence of the witness was inadmissible under section 157 of the Evidence Act because it was made about half an hour after occurrence. His Lordship went on to point out that the weight to be attached to the piece of evidence is a matter entirely different from its admissibility, and he goes on to lay down the meaning of section. 157 in language which I can hardly hope to emulate but with which I express my entire humble and very respectful agreement "The use of the words "about the time" unmistakably postulates that some interval of time may well elapse between the fact and the statement. As to what should be this length of time is a question about which no hard and, fast rule can be laid down nor can any rule of thumb be adopted, but all final can be said is that it must be made either at once or at least as soon thereafter as a reasonable opportunity presents itself. What is reasonable must inevitably be question of fact to be determined in the light of the evidence to such case. But it is essential to remember that there is a material difference between this section and section 6 of the Evidence Act which only makes declaration accompanying acts admissible. Even in this case though the contemporaneousness must be substantial it will be appreciated that it cannot be literal.
The question, therefore, that has to be determined when pronouncing upon the admissibility of evidence as compared to its weight is as to whether the statement sought to be put in as a corroborative statement under section 157, was made as speedily as could reasonably be expected in the circumstances of the case. Otherwise, merely taking into consideration the time factor may lead to dangerous results. The onus, it must also be remembered, of proving the conditions of admissibility of such evidence under section 157 is clearly on the prosecution and it must establish those conditions by clear and unequivocal, evidence before it can be allowed to put such a statement in. But after such a statement had been rut in, then the question will arise as to what weight is to be given to it. Even though it may be legally admissible, it may well be what the weight to be attached to it may be nil which was, in my opinion, the position in the present case.
Although the evidence of Jamali was admissible in evidence under section 157, weight to be attached to it was nil, because he had sought to corroborate a person who had himself been found to be a liar."
24. In stating what I have just said, I am conscious of the very great respect which is due to that august tribunal which is the highest Court of the country and of my duty to apply the law as their Lordships of the Supreme Court have found it. It may, however, I thought, be permissible without presumption, while loyally following the decision of the Supreme Court to give expression to some doubts which disturbed my own mind. I of course neither have nor can have any intention whatever of attempting to decide this case upon a principle of law rejected by the Supreme Court. I therefore hold that evidence of Shahnawaz in the present case was inadmissible, As I shall presently show however, in the present case, it make no practical difference whatever whither Shah Nawaz's evidence is to be regarded as being inadmissible or as of little weight by reason of the lapse of time which took place before the news was communicated to him; even if the weakness did not exist in his evidence, it does not appear to me that his evidence really affects the case at all. It appears to me that the first question that arises for determination in this case is when and. Where did the incident, which is alleged to constitute the offence in, this case take place.
Quite apart froth the question as to which was the guilty party and who from guilty party, are to be held liable in this case. There is really no dispute between the parties as to when and where the occurrence took place. The scene shown by both parties is the same that is to say at a few hundred feet from the place where the match was being played. Even otherwise tie location of the scene could hardly had been a matter of dispute, there was a fair quantity of blood and the corpses of the deceased Qurban and Anwar were also lying there. Upon this question at least, therefore, whether Shah Nawaz's evidence was inadmissible or entitled to no weight. The prosecution case affected not at all; on the other hand, even if it was admissible and entitled to very great weight, it was supervious inas--much as the fact was well established and beyond dispute.
25. As to the time of the occurrence there is a little discrepancy for while the first information report lodged by the prosecution witness Lai Bux places the time as Kirriri Tipahari time that lodged by the appellant Mohammad Salik places the time at sun set. There is of course a discrepancy of about two hours or perhaps a little more. But in the circumstances of the present case it is a discrepancy which does not in the slightest, affect the veracity of the witnesses or the conclusions of facts which might properly be made upon the evidence. A point against the prosecution in this case which I shall presently discuss is that of the delay in lodging the first information report and here curiously enough, the time given by the prosecution is earlier and not later than which is given by the defence; if there is then unexplained delay it is the version of the prosecution which makes the delay longer and not shorter. On this point too, therefore, the evidence of Shah Nawaz is of little value.
26. The first real serious question that arises therefore in this case is which of the two parties were the aggressors. The prosecution no doubt claims they have gone peaceably to tree the Kabaddi match and that the other was waiting in ambush on account of an antecedent enmity which both parties attribute to the same motive. If this question had to be decided by reference only to the oral evidence of the parties I am afraid that there is little to choose between the two. Nor are there in this case any of those circumstances, which either by themselves conclusively established which party was the aggressor or at least learnt such some circumstantial support to the version of one or the other as to make it safe for the Court to rely upon that version. If the fight has taken place upon the land of one, that circumstance might well have been sufficient to held that they were not the aggressors or at least to be the foundation of an initial presumption, unless displaced, that they were the innocent party. The scene however, is not only in the land of either party but only a few hundred feet away from the place where a Kabaddi match was admittedly being played that day, a spectacle which could well attract version if from the immediate neighbour--hood. Both parties do live in the immediate neighbourhood and indeed it is the case of both parties that they bad come for that purpose. Nor again is this one of those cases where one party is completely unarmed while the other so heavily armed that one naturally inclines towards the presumption that the party which carried arms came, if not with the intention of committing murder, at any rate, with the intention of offering violence of some kind. Both the parties were admittedly armed with Latchets in this case and while it is possible, and indeed I intend to show that it is probable, that part at least of the reason of carrying the hatchets was to be ready for some such contingency as in fact occurred, the mere carrying of hatchets in the mofussil is not a circumstance which can be said to be incriminatory or piece of unusual conduct. The prosecution no doubt allege that guns were being carried by some of the accused party, but in discussing the evidence on that point in the course of my examination of the judgment of the learned Judge, I have said enough to show that I am entirely unable to accept the allegation that any gun was in fact carried.
As I have already shown that there was undoubtedly a great deal of delay in lodging the first information report in this case. In cases where first information reports are delayed and delayed as inordinately as in this case of necessity, the two principal dangers which the Court has to guard against, are the possibility of a wholly concocted case or the possibility that a number of innocent people have been added to those who bid part in the incident. That the present is wholly concocted is, of course, fantastic; as many as three persons died on the prosecution side besides two who were in--jured and, upon the appellants side also three were injured to say nothing of the injuries upon Muhammad Saleh son of Azizullah Tunio, apart from the injuries upon the deceased persons, the other injuries were serious. The danger really, therefore, is one exaggeration of number or, at any rate of any exaggeration as to the identify of individual persons. The pr; sent is not a case merely where such a danger exists; it is a case where such exaggeration has been shown to have actually occurred. Upon this point the evidence of Shah Nawaz, if it was available at all, could hardly have benefited the prosecution party. In the main the prosecution witnesses have referred to Shah Nawaz as their Nekmard case-fellow and have glossed over the fact that he is also their relation. Prosecution witness Lai Bux, however, does vaguely say that he is related though he does not describe the exact relationship and the sentence in a passage where he is detailing the relation ship of all the others. Shah Nawaz himself was questioned but denied it in terms which leave it ambiguous whether lie is related or not. He said "it is not a fact that as the prosecution party is related to me so I have given false evidence." This could of course mean, that although related he is not giving false evidence on that account or it could mean that he is not related at all.
The witness Kamal who acted as mashir in this case, however, in cross-examination categorically admitted that Shah Nawaz is the uncle of the decease d Qurban. Now Shah Nawaz himself was undoubtedly informed about the incident quite late and it might well be that the plan to implicate innocent persons had already been formed; the other equally reasonable possibility is that, being a relation, he was himself a party to that plan. Obviously on a point like this his credibility stands upon more higher a footing than that of the other prosecution witnesses who are related and inimical to the accused party. So upon the most crucial question in this case, Shah Nawaz's evidence, looked at in any fashion, is of no value at all.
27. I have already dealt with the dying declaration attributed to Allahjurio and have come to the conclusion that it is quite unlikely that he made a dying declaration at all. Even if he did, however, it can hardly be argued that the evidence of this dying declaration, even though it come from a Police Officer, trade in the presence of the same prosecution witnesses whose evidence is now under examination, can hardly be treated as evidence of any higher worth. If he had survived it would have been subjected to the same criticism, with equal justice, as that which applied to the prosecution witnesses. In these circumstances a statement uncross-examined, as it of necessity was, hardly induces a higher degree of belief, merely because it was made by a person who was severely injured and likely to die when he made the statement. I do not think therefore, that the dying declaration adds to the value of the prosecution evidence either.
28. Unable therefore, to hold upon the evidence that either side was the aggressor I have then to decide who participated in the incident and of what offences, if any, they would be guilty. It might be possible of course, to take the view that, since there is a doubt upon the question as to who the aggressors were it should be resolved in favour of the accused party and it should be held that the prosecution party were the aggressors. In the present case I do not think that that would be a proper conclusion; although it is not possible for me to hold that the accused were the aggressors, it does not follow by any means that the prosecution party necessarily were the aggressors or even that there is such doubt upon that question as would entitle the accused persons to the benefit of the general exceptions within confer the rights of private defence. It is obvious that I cannot resolve the question upon any acceptance or rejection of the evidence of the prosecution witnesses or the statements of the accused as to the number involved on either side. Both versions are necessarily suspect. Upon the prosecution party, however, there were as many as 22 injuries, all with the sharp side of the hatchet and the great majority of them very serious. On the other hand the appellant Qadan had only one injury which was quite simple. Pissand no doubt bad four injuries, three of which were grievous, while Muhammad Salik had three injuries only one of which was grievous. I say nothing of the injury on Muhammad Saleh because it is, by now, com--mon ground that he received an injury only because he tried to intervene and not because he was a member of either side. With this dis-proposition between the injuries, it seems to me so highly improbable that the prosecution party should b: the aggressors that I am unable to bold that there is even a doubt upon the question, As a result therefore I have come to the conclusion the neither side can be said, with safety, to be the aggressors in this case. Yet an incident took place and in that incident three persons died besides others who were injured. That fight took place between the prosecution party and the accused party (again using the word "party" in the general sense without implying the presence of any individual person) not only admits of no dispute but is an admitted position. It seems to me therefore established upon the evidence beyond reasonable doubt that both parties came to see the Kabaddi match fully realising that their opponents were also likely to be present.
Neither it be held, came with the intention of committing murder or even starting a fight but both, quite clearly, came prepared to meet such a contingency, if it occurred. The present, therefore, is really a case of free fight. In such a case ordinarily of course only the persons established to have taken part in that fight would be liable and that only for their own individual acts without recourse being had either to section 149 or to section 34 of the Pakistan Penal Code. That either of these sections might, however, play a part to which. I shall presently revert. It is more convenient I think to settle first who, among the accused persons can be safely held to have taken part in the incident at all. Clearly for this purpose to rely upon the ocular testimony alone is Impossible; the danger of false Implication is so apparent that before liability can be taxed upon any indivi--dual person some evidence, external to the evidence of the eye-witnesses, which would lend assurance to the fact of the presence of the accused person and of his participation in the incident must be available. Now, in the present case excepting the fact of injuries there is admittedly be no corroborative evidence against any of the accused persons. Tee three persons who are injured are appellants one, nine and three, namely, Pissand, Qadan and Mohammad Salik. Each of them not only admits the injury, but admits also his participation in the incident, though of course each of then says that they were the victims of aggression by the prosecution party. In regard to the appellant Mohammad Salik furthermore, he had lodged the first information report, which too, he admits though on the basis of course that the as to the presence of these three persons and I entertain no reasonable doubt. It is true that Mohammad Saleh son of Azizullah Tunio was also injured, but his case; as has been seen stands on a special footing; in any case the learned Judge has acquitted with anal his case is therefore not before us.
29. Now upon the facts as I have found, then it does not of course follow that even though we are sure that these three persons participated no others did. These others may have been five or more and it is therefore necessary to consider that whether there can be any question of as unlawful assembly in the present case. On the facts, as I have held them, they certainly did not come from their homes with any such intention as would constitute the assembly, an unlawful assembly. If, therefore, there was an unlawful assembly, it was one which came into being immediately before the incident. Now, it is not alleged by the prosecution that apart from those whom they have named there were any other associates of the accused party whom they did cot identify. Of necessity, therefore, any doubt that is avail--able as to the presence of the other named persons will also recoil upon the question whether there were in fact five persons at all who participated I still think that even though I am sure of the identity of the three persons who participated it does not necessarily follow that others of the accused party were not there. Upon that finding, it would be at least, doubtful whether they would be members of an unlawful assembly. Their mere presence, without participation, would not make them such. I must hold therefore, that the charges under section 148 of the Pakistan Penal Code and the charges under any of the other sections of the Penal Code read with section 149 cannot be sustained.
30. There is next the question of the application of section 34 of the Penal. Code. Now, that section no doubt requires a common intention but that 1s not to mean necessarily that there must be a premeditated concert much in advance of the actual incident. A common intention may develop at the spot. In the present case for reason which I have already stated, it is quite impossible to hold with any degree of certainty as to which accused person injured which of the witnesses or the deceased. Having regard, however, to the savageness of the attack upon the deceased and their companions end the fact, which is perfectly clear I think, that those who participated acting in concert each of them would be liable for acts of the others by reason of section 34. Under section 34, however, when a criminal act is done by several persons, ea-h of such persons is liable for that act in same manner as if It was done by him alone only if it is in furtherance of the common intention of all. Now a common intention is in nature of an agreement which obviously in the vast majority of cases cannot Le established by any direct evidence of consultation and agreement but has to be inferred, if inferred at all from what actually takes place. In other words it is an inference from circumstantial evidence and in accordance with the principles which govern the appreciation of circumstantial evidence, the Court can draw the minimum necessary inference and no more. In the present case I am quite unable to say that the common intention vv as to kill anybody. Nor coo I think that it would be safe to attribute either the intention or the knowledge referred to in three other clauses of section 300. In my view, therefore, a conviction for murder, even read with this section 34 cannot be sustained in the present case.
31. Certainly however the common intention which actuated the culprits was not merely to inflict some light chastisement, it would well be at least with the knowledge that death was likely-to ensure. In any case parties were using hatchets and, considering that almost all the injuries upon the deceased or the injured are very serious, at any rate, the common intention of causing grievous hurt must be attributed to them. I therefore hold that the convictions of appellants Pissand, Mohammad Salik and Kadanjurrio be filtered to one alternatively under section 3040) or section 326, a P. P. C. Each read with section 34 and that their sentences be reduced to seven years' rigorous imprisonment. With regard to the remaining ten appellants I thought no case had been made but against them and therefore I set aside their convictions and sentences altogether and acquitted them.