1. MUHAMMAD YAQUB Ali, J.-This appeal calls in question the order of a Division Bench of the Lahore High Court, setting aside the acquittal of Khalil and Ashiq, appellants herein, of offences under sections 302, 323 and 324 read with section 34, P. P. C. And sentencing them to life imprisonment each for committing the murder of their co-villager Wazir Ali and a sentence of two years each for causing injures to his son Maqbul Ahmad, P. W. 8.
2. The occurrence took place at about noon time on 17th June 1966, In the area of Village Langoke, District Lahore. The First Information Report of the incident was lodged by Maqbul Ahmad, P. W. 8, at 1-30 p.m. At Police Station, Raiwind, 51 miles distant from the place of occurrence.
3. It was stated in the report that the informant and the deceased were returning to the village from their fields where they had gone to collect fodder for the cattle when the appellants and the acquitted co-accused. Muhammad Anwar, waylaid them near the public path. Khalil was armed with a Toka, Ashiq with a Churri and Muhammad Anwar with a pistol. Ashiq was the first to take the deceased in his grasp whereupon Khalil gave him repeated blows with the Toka. After the deceased had fallen on the ground, Ashiq took out the Churri and caused injuries with it on the neck of the deceased, literally slaughtering him like a goat. During the assault, Muhammad Anwar stood nearby, armed with a pistol, to ward off would be rescuers of the deceased.
4. Maqbul Ahmad, P. W. 8, tried to intervene but was given blow by Khalil on the bead with the handle of the Toka. As he tried to ward of the blow, the palmer side of his left hand and fingers were injured by the grazing of they Toka blade. Besides Maqbul Ahmad P. W. 8, the occurrence was witnessed byMuhammad Sadiq, P. W . 9 and Bashir Ahmad, P. W. 10 who happened to be nearby.
5. The appellants were arrested on the 20th June 1966, whereupon the; led to the recovery of the crime weapons namely, Toka, P.5, at th4 instance of Khalil, appellant, and Churri, P. 8, at the instance of Ashiq Appellant. They also led to the recovery of the clothes P. 6, P. 7, P. 9 ant Id'. 10 which they were wearing at the time of assault on Wazir Ali, deceased tan examination, all these articles were found by the Serologist to be stained with human blood.
6. At the trial, direct evidence of the assault on the deceased was give Maqbul Ahmad, P. W. 8, Muhammad Sadiq, P W. 9, and Bashir Ahmad P. W.
10. Their evidence was corroborated by, (1) injuries found on the person of Maqbul Ahmad, P. W. 8, which, in duration, synchronized wit the injuries suffered by his deceased father ; (it) medical evidence which indicated that the deceased was caused injuries by two different sharp edged weapons like Toka and Churn ; (W) incriminating recoveries mentioned above ; and (iv) evidence of motive on the part of the appellant deposed to by P. W. 7, Muhammad Tufail.
7. The trial Judge brushed aside the entire evidence produced by the prosecution and acquitted the appellants and their co-accused Muhammad Anwar by order dated 21-12-1967. He discarded even the presence o; 1'sqbul Ahmad who had suffered injuries ht the hands of the appellants of Chi finding that these injuries were self-suffered.
8. The State filed an appeal against the acquittal of all the three accused which was dismissed in limine against Muhammad Anwar and admitted against Khalil and Ashiq, appellants herein.
9. Muhammad Anwar had no participated in the assault on the deceased or Maqbul Ahmad, P. W. 8, but had allegedly stood nearby holding a pistol to ward off. Be rescuers u any of the victims.
10. The appeal was accepted by another Division Bench on 8th Maret 1972. The acquittal of the appellants was set aside and they were; convicted and sentenced as aforementioned. The learned Judges further formed the opinion that Muhammad Anwar was equally guilty under section 302 read with section 31, P. P. C. But expressed their inability to review the order by which the State appeal against his acquittal had been earlier dismissed in limine.
11. This appeal by Khalil and Ashiq, accused, boht3 --s of right, we have re-examined the evidence and heard their learned counsel at length. The pivotal fact in the case is whether Maqbul Ahmad, P.
12. W. 8, was present when his father was murdered. If the answer is in the affirmative, the; prosecution case stands proved by his testimony beyond any reasonable doubt. It was a clay light occurrence on a public path near the village Abadi. The identity of the culprits could not, therefore, be mistaken by Maqbul Ahmad. The number of assailants was proved by two different types of weapons used in causing injuries to the deceased. There were also incriminating recoveries which were proved by reliable evidence.
13. Maqbul Ahmad, P. W. 8, was little over 15 years of age when his father was murdered. Although there was bad blood between his father and the; accused, bit this young boy hardly knew the details of the animosity and was not personally involved in any act of enmity. The First Infor-- mation Report was lodged by him with expedition which excluded the possibility of false implication. Indeed, if Maqbul Ahmad eras so motivated, he could, in view of large number of injuries found on the person of his deceased father, include Muhammad Anwar also as one of the assailants.
14. The account given by Maqbul Ahmad was consistent throughout. He was subjected to a lengthy and unfair cross-examination by the defence counsel. The same questions were repeated in order to unnerve him and to create discrepancies in his statement. Towards the close of the cross- examination, a suggestion was made that Maqbul Ahmad bad not witnessed the occurrence and had not suffered injuries in the transaction in which his father had lost his life. The trial Judge was impressed by the plea and in accepting it he gave the following reasons in para 8 of the judgment :- "Maqbool. P. W., being an eye-witness of the occurrence is belied also by the circumstance that if present, the assailants would not have spared him so as to be a witness against them and by the ridiculous account of injuries that he was given Toka blow with the wooden handle and that too on the back side of the head and that he got his hand injured in an attempt to snatch the Toka. It Khalil were ready to give a blow, it would be from the sharp side on the front of the body of the P. W.
15. With a considerable force. Here also the P. W. Is confounded of his falsehood. Supposing Khalil caught hold of the handle of the Toka, the blade side towards himself as Bashir P. W. 10 says, the blow on the back of the bead of the P. W. Would prevent the P. W. From catching hold either of the blade or the handle. And to these absurdities, the fact of the late examination of Maqbool P. W. And that too in Kasur Hospital instead of Raiwind, it conies out that the injuries of Maqbool were caused by friendly hand."
16. Maqbool Ahmad was examined by Dr. Haji Fazai Elahl, Medical Officer, Kasur, on 18th June 1966, at 1- 15 p.m. Soon after performing autopsy on the dead body of his father. He found the following injuries on his person :----
(1) A contusion mark 2 -- ' x -- ' over left side occiput running transversely, part swollen.
(2) A cut 1/2':c l/16---x 1/6" over velar aspect of right thumb.
(3) Two cuts -- " x -- --- each superficial over velar aspect right hand palm at base of right thumb.
(4) A superficial cut 1/2'x 1/16' over the palmer aspect of right hand thumb at its base.
17. Duration of the injuries was 25 to 26 hours which tallied with the tame, when the deceased was murdered. The nature and locale of these injuries amply make out that the suggestion made to Maqbul Ahmad that 11be injuries were self-suffered was absurd. The first injury was era the occipital region. If a little more force was applied, it would have proved fatal. Indeed, there were other safer parts of the body ion which tell-tale injuries could have been caused by friendly bands. As to injuries Nos. 2 and 3, the explanation given by Maqbool Ahmad was perfectly, correct. It was natural for him to raise his band to ward off tube blow aimed at his head by Khalil, accused. Though the injury on the head was caused by the blunt side of the Toka, the finger and the palm of the right hand of Maqbul Ahmad grazed against the blade and resulted in injuries Nos. 2 and 3. The opinion expressed by the doctor to which our attention was drawn by the learned counsel for the appellant: that these injuries could not possibly be caused by Toka, P. 5, was misconceived. What he meant probably was that if a direct blow was given by the sharp slide of the Toka, the injury caused would have been much deeper andnot superficial.
18. The third reason given by the trial Judge in rejecting the testimony of Maqbul Ahmad that he got himself examined late at Civil Hospital. Kasur, and not at Chunian, where he had lodged the F. I. R. Is equally erroneous. Ch. Bashir Ahmed, P. W. 14, A. S. L, who recorded the F. I. R at Police Station at 1-30 p.m,. Examined the injuries found on the person of Maqbul Ahmad and prepared the statement Exh.
19. P. K/ t before his departure for village Longoke. The injuries were not of such a serious nature as to call for an immediate examination and attendance by a doctor. Maqbul Ahmad accompanied the A. S. I. To the village and later on left with the dead body of his father to the mortuary which is at Kasur and not at Chunian. His injuries were examined there immediately after autopsy was performed. This explained amply why the injuries were examined late and why in the Civil Hospital, Kasur and not at Chunian.
20. Once the presence of Maqbul Ahmed is accepted, there is no cogent reason to disbelieve the other two eye-witnesses namely, Muhammad Sadiq, P. W. 9 and Bashir Ahmad, P. W. 10, whose names were mentioned in the F. I. R. They were present at the spot when the A. S. I. Came there and he recorded their statements under section 161, Cr. P. C. Muhammad Sadiq was unconnected with the deceased while Bashir Ahmad was related to him and admitted that he belonged to the party faction of the deceased. The occurrence having taken place along a public path the presence of these witnesses was not unnatural. The evidence given by them was con--sistent and fully corroborated the account given by Maqbool Ahmad, P. W.
21. The learned Judges in the High Court have also accepted the evidence of incriminating recoveries made at the instance of the appellants namely, blood-stained Toka, P. 5, Cheddar, P.6 and shirt, P.7, blood-stained Churr4 P.
8. Cheddar, P. 9 and shirt, P. 10: The blood on these articles was found by the Serologist to be of human origin. Muhammad Ashiq, P. W. 6 Ghulam Haider, P. W. y and Abdul Hamid, P. W. 15, S. H. O., Raiwind, who had effected the recoveries on 20th June 1966, soon after the arrest of the two appellants, deposed to these recoveries. We have read the testimony of these P.
22. Ws. And find ourselves in agreement with the learned Judges of tire High Court that there was no proper reason to doubt the genesis of these recoveries.
23. On our own analysis, the reason given by the trial Judge in discarding the, presence of Maqbul Ahmad vas far-fetched and fanciful. His presence was established by the injuries found on his person. The F. I. R. Was lodged by him without loss of any time which eliminated the possibility of fabrication on the part of a boy of 15 years of age. There was animosity between his father and the accused but he was riot personally involved in it so as to falsely charge the appellants for the murder of his father. Once his presence was established, it was not reasonable to infer that he substituted the appellants and their co-accused for the real culprits. The evidence given by Maqbul and the other two aye-witnesses owes, as seen, amply corroborated by the incriminating recoveries mentioned above. The learned Judges in the High Court have relied on them send on our own appraisal, we have found the evidence relating to the recoveries as trustworthy.
24. In the result, we agree with the High Court that 'he appellants have been guilty of committing the murder of Wazir Ali and causing injuries to Maqbul Ahmad, P. W. Their convictions and sentences under sections 302, 323 and 324, P. P. C. Are upheld and the appeal dismissed.