' The four appellants in this case have been convicted under sections 148 and 307 read with 149 of the Penal Code and have been sentenced to rigorous imprisonment for one year and four years respectively. One Gullan Shah was also accused with them but he died after the committal of the case to the Court of Sessions but before the trial. With the exception of appellant Ghulam Mustafa, who is a Memon by caste, the appellants are Seed by caste and closely related inter se. The three principal witnesses in this case are also very closely related as the first informant Sher Shah is the father of the other two witnesses, Baqar Shah and Khuddan Shah. Although Sher Shah denies that they are also related to the appellants, clearly that is not so for he himself admits that he is related to the appellant Jumnian Shah and it is also an admitted position that parties lived within the same enclosure. This is hardly likely except between relations and particularly among Syeds. The prosecution case is that at about 1 a.m. On the 4th May 1971 when the first informant and his son Khuddan Shah, the injured, and his younger son, prosecution witness Baciar Shah, were sleeping at their dera in order to watch their wheat, he woke up to see five persons whom he identified to be the present appellants and the deceased Gillian Shah inflicting hatchet and lathi blows on Khuddan Shah. Khuddan Shah who had been attacked in his sleep became unconscious immediately thereafter and Sher Shah, after going to the village, went to one Pir Hajan Shah.
Immediately outside the village he met one Muhammad Awan to whom he narrated the whole story but could not tell Pir Hajan Shah because the latter was not available. He then went and informed Jam Abdul Khaliq who is their Zamindar and, on his advice, carrying the injured, went to the police station where his first information report was recorded at 7-30 a.m. In the course of the investigation that ensued no recoveries were made nor any kind of circumstantial evidence has been discovered and the only matter that needs mention is that the injured himself was not examined by the police until the 1st June because he was unconscious. The appellants were duly sent up to Court with the result that I have already stated.
2. Now the prosecution case rests upon the evidence of the three eyewitnesses including the injured himself and the corroboratory oral evidence of Muhammad and Abdul Khaliq whom I have mentioned. The real question, therefore, in this case is whether this evidence is of that character which may without external corroboration be safely accepted particularly as to the identity of each of the culprits.
3. The motive which the prosecution attribute to the appellants for this crime is that there was, about fifteen days prior to the incident, an altercation between the first informant and Dinal Shah, a brother of the appellant Arbab Shah, who worked on the weighment of the produce and this is glaringly referred to in the first information report where it is stated that two of the appellants said to the first informant that since he had insulted them on that occasion, they would kill his son.
Learned counsel for the appellant argues that this is far too slight a motive for the present crime but of course, where a motive is involved, it is difficult to say what kind of motive will be sufficient and that is why, as a matter of law, the prosecution are not bound to establish a motive. Having said so, however, I do feel that the question of motive cannot be brushed aside in all cases as entirely irrelevant. Much would depend upon the facts of each particular case. Where a motive is in fact attributed, it might be worth examination to see whether it could really be any incitement for the commission of the crime. Whether or not the motive was adequate, it was one which would give a sense of grievance to the appellants against the first informant himself. In the absence of the first informant, no doubt, they might well attack some relation of his but it seems curious that they should, in his presence, attack his son and warn him to keep away lest they might do him harm also. Besides, this is not a murder case where a deceased person, who might be supposed to know more about the motive than the witnesses, cannot speak and Khuddan Shah having been examined, does not add to our knowledge either.
4. The defence have, however, themselves brought out the fact that there was civil litigation between the parties and while this does furnish evidence of hostility, for which purpose the defence elicited the fact, it might equally well take the place of motive. What result, this will have upon the reliability of the witnesses is a different matter to which I shall presently come.
5. The distance from the scene of offence to the Police Station was only 2i miles and the prosecution have made no attempt to explain what, prima-fade, would appear to be a fair amount of delay in lodging the first information report. Delay in the lodging of the first information report is not, of course, a matter which is necessarily fatal to the prosecution case but it must B be taken into consideration in assessing the evidence. It will be recalled that the first informant says that he first went to inform one Pir Hajan Shah who was not available and then went to his Zamindar Jam Abdul Khaliq. The distance from the scene to the residence of these two persons is not stated by the prosecution ; if it was and the distance was comparatively long, this might well explain the delay. In the absence, however, of any evidence on the point it would seem probable that these distances cannot be great. Jam Abdul Khaliq, being their own Zamindar, is likely to be residing fairly nearby and if the first informant preferred to go to Pir Hajan Shah first I think it must be assumed, in the absence of any special reason, that Pir Hajan Shah resided even nearer. These visits, therefore, do not explain the delay in this case and it is to be remembered that we are dealing with a case where the witnesses, although natural, are nevertheless hostile.
6. In his first information report as also in his deposition the witness has stated that on the way he met Muhammad Awan as also one Bachayo Awan. What these persons were doing at that time of the night is not explained but, in the absence of any cross-examination on the point, I do not propose to take this fact as one affecting their credibility. Of these two witnesses, however, only Muhammad Awan has been examined and as to him the first informant himself admitted that there were cases pending between the appellants and Mohammad under section 107, Criminal Procedure Code.
7. Against Jam Abdul Khaliq, no doubt, no such attack can be made but Jam Abdul Khaliq says that no names of any culprits were given to him at all. The net result, therefore, is that of the two witnesses who corroborate the first informant one to whom the names were given is as hostile as the first informant himself while the other does not say that the names were given to him. If then the names were not given to him, the delay in the first information report must be regarded as a significant factor.
8. Now besides the first informant the other eye-witnesses are the injured himself and Baqar Shah who is a boy of fifteen and who used to bring the meals of his brother and father and then spend the night at the dera with them. The evidence of the injured himself is not one upon which a great deal of reliance can be placed. It is claimed that identification took place by moon light but, admittedly, this was the 8th or the 9th of the lunar month and the moon would not be giving light after midnight on such a date. The injured was attacked while he was sleeping and did not regain consciousness until many days thereafter. No doubt the appellants were known to the witnesses before and at a close distance, even in the dark, they would be identified but so far as the injured is concerned, in these circumstances his memory can hardly be safely relied upon.
9. The case of the defence was that nobody, except the injured himself of course, witnessed the occurrence and the father, finding that the son did not return in the morning, went to the dera and found him unconscious where after he has implicated the appellants. I would not have lightly believed this but there is one circumstance at least which gives plausibility to this theory and that is that when the police came to the scene, they found two cots at the scene. According to the prosecution case, there were indeed originally two cots on one of which the injured slept while the other was occupied by the first informant and his younger son. One cot, out of these, however, was used for the purpose of carrying the injured to the hospital and, therefore, there ought, when the police came, to have been only one cot. The first informant explains this by saying that after the injured had been left at the hospital he brought back the cot by having it conveyed in a taxi to his village and from there brought it to back to the scene of offence. Clearly it would cost more to engage a taxi to bring back the cot than the price of the cot itself and this seems to be an explanation got up in order to explain the presence of two cots. The mashirnama of the scene of the offence refers to the other cot as the one upon which the first informant and Baqar Shah were sleeping.
10. The medical evidence discloses sixteen injuries upon the injured and clearly this was the work of more than one man. But six of these were only abrasions or lacerations and I don't think it shows that there were as many as four or five persons present. Even if, therefore, the first informant and Baqar Shah did witness the crime and some of the persons they implicate are the true culprits, there is clear danger of their implicating innocent person as well. As I have shown, there is no corroboratory evidence against any of the appellants.
11. In the result, not considering it safe to uphold these convictions, I allow this appeal, set aside the convictions and sentences and acquit the appellants.