' MIR HAZAR KHAN KHOSO, J.---Leave to appeal was granted to Sher Muhammad (60), Muhammad Anwar (35) and Muhammad Sarwar (40) against the judgment dated 16-5-1993, passed by a Judge in Chamber of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby their appeal challenging their conviction and sentences awarded to them by the learned Sessions Judge, Bahawalpur, on 28-11-1987, for offence under section 302/34, P.P.C. Imprisonment for life and fine of Rs,5,000 each, in failure whereof to suffer R.I. For one year more and under section 323/34, P.P.C. To undergo R.I. For one year and fine of Rs,1,000 each, in default to suffer R.I. For six months more and the fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., was dismissed.
2. The facts as disclosed by complainant Muhammad Hussain in his F.I.R. No,91/87, registered at Police Station, Yazman, are that his father was Lambardar of Chak No,100/DB. His father's cousin appellant Sher Muhammad alongwith his family lived in the same Chak. Their lands were adjacent .To each other. 26/27 years back his father Nazar Muhammad had married Mst. Rasoolan Bibi, sister-in-law of Sher Muhammad. Sher Muhammad's wife's name is Mst. Hakim Bibi, who had a son by name of Muhammad Sadiq from her first husband. Dispute between Sher Muhammad and Muhammad Sadiq over share of land had erupted. Nazar Muhammad used to help him. Sher Muhammad and his sons appellants Muhammad Anwar and Muhammad Sarwar asked him to resist from helping Muhammad Sadiq. Nazar Muhammad did not give heed to their protest. The disputed land was entered in the name of Muhammad Sadiq by Tehsildar. Appeal filed by Sher Muhammad was dismissed by A.C. The assailants as such were highly aggrieved from Nazar Muhammad. On the night between 11th and 12th May, 1987 Nazar Muhammad after `Taravee' prayers went to his Dera to look after his cattle. At about 12-00 midnight Muhammad Mansha informed Muhammad Hussain that 'Naka' of water course was broken and water had entered into his lands. The complainant, therefore, went to his father. At about 12-30 a.m. When he reached near his father he heard his cries. In the light of moon he saw that Sher Muhammad and Muhammad Anwar armed with `Lathis' and Muhammad Sarwar, armed with hatchet were beating his father and declaring that they would chastise him for his help to Muhammad Sadiq. The complainant raised cries but Sher Muhammad and Muhammad Anw'ar also gave him beating. On his cries Abdul Qadir and Muhammad Boota also arrived there. They saw the incident. Muhammad Boota and Abdul Qadir tried to apprehend the assailants but they successfully escaped from the scene.
Immediately thereafter Nazar Muhammad succumbed to his injuries. Ali Muhammad and Allah Rehm also came there. The complainant sent such information to one Sher Muhammad, Lambardar of Chak No,90/DB. On arrival of Sher Muhammad the complainant alongwith him went to the Police Station Yazman and got registered F.I.R. No,91 of 1987. Muhammad Abdullah S.I. Took investigation of the case. He went to the spot alongwith Muhammad Hussain and Sher Muhammad Lambardar. At the site he prepared injury statement and inquest report of deceased Nazir Muhammad and sent his dead body for post-mortem to hospital at Bahawalpur. He took into possession blood-stained earth, pillow, Khais' and pair of shoes of the deceased. He got examined Muhammad Hussain from Medical Officer. He handed over investigation to Munawar Alam, Inspector. On 20-5-1987 Munawar Alam arrested appellants Muhammad Anwar and Muhammad Sarwar. On 24-5-1987 he arrested Sher Muhammad. Sher Muhammad, Muhammad Anwar and Muhammad Sarwar led to recovery of their respective weapons but the same were not stained with blood. He challaned appellants Sher Muhammad, Muhammad Anwar and Muhammad Sarwar to face trial for the offence. Their case came up for trial before the Court of the learned Sessions Judge, Bahawalpur, where they did not plead guilty to the charge and claimed trial. The prosecution as such examined in all twelve witnesses. The appellants denied the allegations and canvassed innocence. They examined one Allah Ditta in defence. However, the learned Sessions Judge found them guilty for the offence under section 302/323/34, P.P.C. Convicted and sentenced them for the same on 28-11-1987 as stated hereinabove. They filed appeal before Lahore High Court, Bahawalpur Bench, Bahawalpur. The complainant also filed revision petition for enhancement of their sentences before the same Court. The appeal as well as the revision petition were dismissed by the High Court on 16-5-1993. The appellants filed Criminal Petition for Leave to Appeal before this Court which was granted on 3-5-1994 in the words as under:-- "Leave to appeal is granted to consider whether the principles governing appraisal of evidence as laid down by this Court were correctly followed by the Courts below and the evidence of three relation-cum-chance witnesses, who claim to have witnessed the occurrence at dead of night in the moon light, could form a safe basis for conviction."
3. Kh. Muhammad Sharif, Advocate Supreme Court, appeared for the appellants whereas Ch. Muhammad Akram, Advocate Supreme Court, appeared for the State.
4. I At the very outset the learned counsel for the appellants heavily criticized the inordinate delay in lodging of the F.I.R. And took us through it showing that the incident had taken place at 12-30 a.m. And the report thereof was lodged at 6-30 a.m. On the same day. The distance between the site and the Police Station being 8 kilometres could have been very easily covered within an hour or so but strangely six hours have been consumed. To justify his delay the learned counsel contended that complainant has taken shield of initially informing the incident to Lambardar Sher Muhammad. But therefor also complainant has taken contradictory stands. In F.I.R. He has said that he sent some one to Lambardar Sher Muhammad who came at the spot, took him to the Police Station and got recorded his complaint. In his statement recorded before the Court he has taken turn over and stated that he had gone himself. They both set on foot to Police Station and reached there at 6-00 a.m. The learned counsel contended that his explanation being self-contradictory could not be relied upon.
5. It was then contended by the learned counsel for the appellants that the incident has taken place during night time. It was a blind murder. Defence witness Allah Ditta, who was in his fields, found him lying dead. He informed the event to his son Muhammad Hussain, who after consuming six hours in deliberations and consultations introduced himself and close relatives Abdul Qadeer and Muhammad Boota as eye-witnesses. The learned counsel further contended that the abovesaid three witnesses are not only related inter se but closely related to the deceased, and essentially chance witnesses. They have falsified themselves by suppressing inter se close relationship. Prosecution has miserably failed to prove their presence at the spot. Their evidence is not credit-worthy. It cannot be relied upon without strong corroboration which lacks. In the attending circumstances the medical evidence would not lend any support to ocular account.
Then the learned counsel severely criticized presence of Muhammad Hussain and sustaining injuries at the spot. To prove his presence the learned counsel reiterated the complainant introduced theory that Mansha had informed him that a breach had occurred in the watercourse and water was gushing there. To establish it Mansha was material witness but he has not ben examined. Besides, no breach of watercourse or water and pointed out in fields. Regarding injuries of Muhammad Hussain the learned counsel stated that he had claimed to have fallen on his father Nazar Muhammad to save him from assault when the appellant and his companions caused him injuries, but surprisingly he received injury on his hands and legs but not on other parts of his body.
The injuries reflect to be either self-suffered or suffered by friendly hands. Besides the complainant has claimed that his clothes and the articles pillow, Khes etc. Of deceased were stained with blood.
He did not produce his clothes. The articles of deceased did not contain blood stains. It belies his evidence. The learned counsel submitted that the dispute regarding correction of Revenue record was finally decided by Assistant Commissioner three years back, there was no immediate cause for the appellants for having killed the deceased. The motive is farfetched. To prove it, the best witness was Muhammad Sadiq who has not been examined. The learned counsel contended that the deceased was of uncompromising nature and had dispute with so many persons of the vicinity. Their names have been brought on the record. Thus possibility of his having been killed by his other adversaries could not be ruled out. The incident has taken place during night. It was either dark night or moonlit night. Identification of assailants in either case was not possible. In such view of the matter the learned counsel reiterated that the case against the appellants was not proved beyond reasonable doubt. They as such be acquitted of the charge. In support of his contentions the learned counsel relied upon the following cases:-
(1) Daud alias Dadan and another v. The State reported in PLD 1964 (W.P.) Kar.
428. The Court has taken the view:-- "(a) Witness---Testimony of chance witness---To be examined with great care and caution.
(b) Witness---Mere presence of injury, simple in nature and probably self-suffered, on person of alleged eye-witness---Does not make his testimony reliable.
(c) Witness---Not inimical to accused---Testimony, nevertheless, not relied upon where case against accused not above suspicion."
(ii) 1974 PCr.LJ Note 10 at p.7 (1. Muhammad Shafi 2. Allah Ditta v. The State) In head note (b) the Court has observed:-- "(b) Pakistan Penal Code, 1860 (XLV of 1860), S.304, Part I---Occurrence witnessed by chance and related witnesses---Their presence at or near the spot not satisfactory accounted for--- Prosecution case on the basis of such eye-witnesses account, held, not free from doubt-- Accused/appellants given benefit of doubt setting aside their conviction and sentence."
(iii) 1985 PCr.LJ 1987 (Bashir v. The State). In headnotes (a) and (c) the Court has said:-- "(a) S.302---A double-edged weapon---Cuts both ways---Held: Motive could also be reason for false implication of accused, on account of enmity or suspicion---Benefit of motive not given to prosecution.
(c) S.302---Eye-witnesses---Credibility of---Chance witnesses---Two eyewitnesses found by High Court as chance witnesses---These witnesses also related to deceased---Evidence of chance witnesses giving smell of enmity with accused and inclination towards prosecution---Their statements showing that they gave evidence with a motive other than that of telling truth---Eye- witnesses either denying or pleading want of knowledge of things which they were presumed to know--One of eye-witnesses making inconsistent statement-Testimony of such eyewitnesses discarded by High Court."
6. The learned counsel for the State vehemently controverting the contentions raised by the learned counsel for the appellants submitted that no enmity existed between the witnesses and the appellants earlier. Witnesses had no reason to falsely implicate them. They resided near to each other. They were related inter se. There could be no mistaken identity. The trial Court as well as the Appellate Court have properly assessed their evidence and reached at right conclusions.
Their judgments as such be maintained and the appeal be dismissed.
7. Before dilating upon the contentions raised by the learned counsel for the parties, we are inclined to depart from our old practice and start with our own way by examining the evidence of defence witness Allah Ditta first. The necessity to follow this procedure is that Allah Ditta has claimed to have seen the deceased lying dead at his Dera. He informed his son Muhammad Hussain who reported the matter to police. It will be useful to reproduce his statement:-- "About 6-1/2 months ago, I was irrigating my land at about 12-05 midnight. Before I had completed my turn, Ali Muhammad who was tenant of my brother Sardara, forcibly diverted water, although I had yet to irrigate for half an hour more out of my turn I then proceeded to the Chak for informing the Lambardar Nazar Muhammad deceased about it. I called out at his house. Muhammad Hussain son of Nazar Muhammad deceased came out of the house. Muhammad Hussain P.W. Told me that his father Nazar Muhammad deceased was at his Dera. (Objected to by learned counsel for the complainant). Said Muhammad Hussain P.W. Is now present in Court. Then I proceeded to the Dera of Nazar Muhammad deceased. I called out twice to Nazar Muhammad. There was no reply. I then proceeded forward and saw that he was lying dead. I then returned to the Chak and went to inform Muhammad Hussain about it (objected to because this part of the statement was not put to Muhammad Hussain). I then informed Muhammad Hussain that his father was lying dead. I alongwith Muhammad Hussain and others then went to the Dera. Muhammad Hussain saw his father lying dead. Thereafter Muhammad Hussain went to the Police Station for informing the Police."
' In cross-examination the witness has given strange replies. The answers are:--
(i) I do not know if the name of my father-in-law is Mutalli.
(ii) I do not know the name of my wife.
(iii) I do not know where is the Dera of Sher Muhammad accused.
(iv) I did not come to know if the case of the murder had been registered against Sher Muhammad and his two sons.
(v) I do not know Sadiq Pichhlag of Sher Muhammad.
(vi) I do not know if there was any land dispute between Sher Muhammad accused and Sadiq.
' His negative attitude inevitably not only adversely effects on.His conduct but on his credibility too.
In examination-in-chief absolutely he did not face any disability to give absolute affirmative replies. In cross-examination demon over awed him. His demeanour is certainly not above the board. In cross-examination I.O. Muhammad Abdullah definitely has said that he saw Allah Ditta at the spot but he did not inform him that he had seen the dead body. 342, Cr.P.C. Statements of the appellants are monotonously simpliciter and dumb in nature, except in reply to question No,3, Sher Muhammad has explained:-- "The relationship between Sadiq and myself is correct and so is the dispute about the land but it is incorrect that Nazar Muhammad deceased helped said Sadiq or that I had asked him not to help him."
' In answer to question No,8 he further explained that he was involved; "due to enmity and suspicion". The appellants obviously remained unconcerned regarding the firsthand knowledge of Allah Ditta about seeing dead body of the deceased in their 342, Cr.P.C. Statements. It cannot be lightly ignored that appellant Sher Muhammad is son of paternal aunt of Allah Ditta. He is thus equally related to the appellants. He lived in the same Chak where the complainant, the witnesses and the appellants lived. Being very close relative of the appellants and living in the same vicinity ordinarily he should have disclosed the incident to the appellants or their other near relatives.
However, to minimize effect of his silence he scrupulously denied of having even knowledge of registration of case against Sher Muhammad etc. The abovesaid cluster of circumstances eked with belated appearance of the witnesses in the arena reflect that his introduction is not only afterthought but sinister one also.
8. Coming to the prosecution case it may be observed that the place of incident and murder of the deceased have not been disputed. Even otherwise from the site blood-stained earth was taken into possession. It has been certified to be human blood. There is evidence on the record that dead body of the deceased was taken from there to mortuary for autopsy. Medical Officer conducted post-mortem on it and certified that some of the injuries on his person were sufficient in ordinary course of nature to cause his death. We, therefore, feel it not necessary to go into its depth further.
9. The prosecution alleges that the incident had taken place at 12-30 a.m. The report was lodged at 6-30 a.m. At the police station. Complainant Muhammad Hussain was examined by Medical Officer, Dr. Muhammad Sher-uz-Zaman Bhatti at 10-00 a.m. He opined that injuries caused to him were 9 to 10 hours old. The same doctor conducted autopsy on the dead body at 2-30 p.m. He opined that time between post-mortem and death may be 13/14 hours. The abovesaid approximate timings given by the Medical Officer coincides with the timing of the incident given by the prosecution. The number and the nature of injuries on the person of the deceased and injured Muhammad Hussain not only affirms the ocular version but commensurates with the number of assailants. Thus the medical evidence as such could be used as strong supporting circumstance.
Complainant has justified delay of six hours in consuming to inform Lambardar Sher Muhammad and pedestrianising to police station. In respect of the mode of conveying message to Lambardar the defence manoeuvred to make mountain from the mole. The F.I.R. And the police note appended thereon reflect that Lambardar Sher Muhammad accompanied complainant Muhammad Hussain to the police station. In their statements before the Court Muhammad Hussain and I.O. Muhammad Abdullah have affirmed it. The mode of communication is thus immaterial and will not in any way dent complainant's explanation. Non-examination of Mansha as such is of no consequence.
10. The incident has taken place in odd hours of the night. More or less at dawn time report is lodged. During the dead hours of night who could have aided the complainant to fabricate the evidence and foist false case upon the appellants. However, in cross-examination defence has put question to Muhammad Hussain that he went to Bahawalpur and consulted lawyers who advised him to get himself injured, become an eye-witness and claim to have been injured during the occurrence. The suggestion on face of it not only seems to be improbable but absurd one also.
Nowadays in the attending circumstances in dreadful hours of the night if not impossible but at least difficult to knock at the door of an Advocate to awake him and to ask him for advice. The suggestion itself not only rules out but negates the probability of deliberations, consultations and preliminary investigation and self-infliction of injuries on the person of Muhammad Hussain or infliction of injuries at the friendly hands. Besides, the injuries on his person reflect that firstly with his hands he tried to repel the attack of the assailants. In such attempt he received three injuries on his hand i,e, one on left wristjoint, one on left fore arm and one on left middle finger. The rest of the three injuries; one on back of his left shoulder; one on the back of left leg and one on the top of the mid of left leg, he may have received while lying on the body of his father. The injuries Nos.5 and 6 on the person of deceased seems to have been inflicted him while he was sleeping on the cot. On receiving the injuries he seems to have got up, tried to protect himself by using hands and he received injuries on his hands. He then fell on ground. The rest of injuries he received while saving himself by giving his back to the assailants. The complainant has affirmed that some injuries the deceased received on cot and some injuries on ground. Injury No,1, which is caused by hatchet could have bleeded. It seems to have been caused when the deceased had fallen on the ground. It is obviously the reason that pillow, Khes etc. Of the deceased which were lying on the cot were not stained with blood, but his shirt and trouser were stained with blood and the blood was traced on the ground.
11. The complainant in unequivocal words in the F.I.R. Has disclosed the motive for the commission of the murder. We need not to repeat it. In their statements recorded before the Court Muhammad Hussain and Abdul Qadeer have reaffirmed it. In 342, Cr.P.C. Statement the appellant, Sher Muhammad, has admitted that there existed dispute between him and Muhammad Sadiq over land. He, however, has denied if he had restrained the deceased from helping Muhammad Sadiq or had taken it ill. But without reservation, in unequivocal words in cross-examination defence has suggested to complainant Muhammad Hussain that Muhammad Asghar and Muhammad Youths sons of appellant Sher Muhammad had caused injuries on the person of the deceased. This suggestion of the defence and statement of Sher Muhammad if are read in conjunction it would establish that fire of ill-will was conceiving in the minds of Sher Muhammad and his sons. It had not ceased, even with the passage of time. With that the possibility of some body else might had killed the deceased is negated by this suggestion of the defence. Even otherwise phenomenon of substitution is not recognised by the Superior Courts of this Country. In these circumstances non- examination of Muhammad Sadiq is not fatal. The record reveals that complainant Muhammad Hussain, Abdul Qadeer, Muhammad Boota, the deceased and the appellants are related by one way or the other. They resided near each other in the same vicinity. They have Deras their there.
The incident has taken place within the Chak in the Dera of the deceased. Their presence in the area is natural.
12. Muhammad Hussain received injuries when saving his father. He has explained the delay in lodging of the F.I.R. With the sunrise he lodged the F.I.R. And brought the law into motion. Names of the eye-witnesses, the assailants, the weapons they carried, the part they played is mentioned in the F.I.R. The witnesses were immediately examined by investigating officer. Parties are related inter se. The witnesses had no cause to falsely implicate the appellants. Their presence at the spot is established. They have stood to . The acid test of lengthy cross-examination. It may not be out of place to mention that firstly the purpose of cross-examination is to test credibility of a witness. And then to bring true facts on the record which he has either not brought on the record or has deliberately concealed. The object of the cross-examination is not to exhaust a witness and in state of his helplessness to get something which a counsel, who is an expert on the subject, intends to get. Such practice has been depreciated by this Court in the case of Muhammad Shafi etc. v.
The State reported in PLD 1967 SC 167. It has been observed:-- "There is a regrettable practice among class of lawyers to use prolonged cross-examination for the purpose of leading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the form of leading questions has thereby been reduced.
Such a practice is plainly designed not for the disclosure of truth, but for the manipulation of error, and we take this opportunity of expressing our entire disapproval of the use of such methods."
13. In F.I.R. The complainant implicitly has said that he identified the assailants on moon light but in examination-in-chief it was missed. But during cross-examination the witness was asked about the source of identification and he voluntarily explained that it was on moonlight. Witnesses Abdul Qadeer and Muhammad Boota have affirmed such statement. The appellants and the witnesses are related to each other. They resided in the same vicinity. The witnesses had seen the appellants at a close distance on moonlight, hence there can be no mistaken identity.
14. A very few minor contradictions were pointed out in the evidence of eye-witnesses. Most of them relate to facts brought in cross-examination by defence but not in examination-in-chief. In a question when defence did not receive the expected reply he immediately put another question that he did not say so before the police. We would quote examples of such facts herein as under:-- "In examination-in-chief Muhammad Hussain has said that in attempt to save his father he received injuries. In reply to a question in cross-examination he explained 'when I had fallen down on the body of my father to save him the accused has also given me injuries'. Defence seems to have put question to him whether he had said so before police the witness replied. 'I had stated before the police officer that I had fallen on the body of my father to save him'. The note of the Court is 'confronted with statements Exh.PE not so recorded'. In examination-in-chief witness has said that he received injuries at the hand of the assailants. In cross-examination witness explained that he received 6/7 injuries. Feeling that his reply gets support from medical evidence he put another question whether he had said so before the police. The witness replied that 'I had stated in my statement before the police that I had suffered 6/7 injuries'. The Court remarked `confronted not so recorded in Exh.PE'. In examination-in-chief the witness said that Abdul Qadeer and Muhammad Boota came on cries. But in cross-examination the witness explained that they were working on the sugarcane crushing machine at a distance of 2-1/2 Killas from the place of occurrence. Feeling disturbed the defence seems to have put question to the witness if he had said so before police. He replied `I had stated to the police that the P.Ws. Abdul Qadeer and Muhammad Boota were working on the sugarcane crushing machine at the distance of 2-1/2 Killas from the place of occurrence'.
The Court has remarked that 'confronted where the distance is not mentioned')."
15. Similar contradictions have been brought on the record in evidence of witnesses Abdul Qadeer and Muhammad Boota. We feel it not necessary to repeat the same.
16. It may be observed that section 162 of the Criminal Procedure Code authorizes an accused person to contradict a witness with his statement recorded by police under section 161 of the Code.
The scope of contradiction is visualized in Article 140 of the Qanun-e-Shahadat Order, 1984. It would be advantageous to reproduce both the section and the Article for better understanding:-- "162.---(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such 'statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: ' Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination: ' Provided, further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, it shall record such opinion (but not the reasons therefor) and shall exclude such, part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 or to affect the provisions of section 27 of that Act.
' Article 140 of the Qanun-e-Shahadat Order, 1984.
"140. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
17. Article 140 of the Qanun-e-Shahadat envisages that a witness may be contradicted with his previous statement. There is no cavil on the proposition. The question is whether certain facts which had been brought on the record by the defence himself through cross-examination could be equated with a previous statement. A bare reading of the abovesaid two sections of the Criminal Procedure Code and Qanun-e-Shahadat will say no. It is not all, besides, the contradictions pointed, out being of minor nature would not affect the material evidence of eye- witnesses.
18. The contentions raised by the learned counsel for the appellants have no bearing and as such have been repelled. The authorities relied upon by him also do not come to the rescue of the appellants. We have perused the record of the case and the judgments passed by the trial as well as the appellate Court. There is nothing wrong with the impugned judgments which may call for interference of this Court in appeal. There is no merit in the appeal which is dismissed accordingly.