1. DORAB PATEL, J.----This is an appeal against a judgment of a Division Bench of the Lahore High Court and the relevant facts are somewhat compli--cated. Four persons were murdered in Lyallpur District on the morning of 1st July, 1964. Three of the victims Bahoo, Noora and Riaz were brothers whilst the fourth victim Anwar was their nephew. According to the prosecu--tion, ten or twelve years earlier, there had been a dispute over water rights between the said Bahoo and his brothers on the one hand and Sardool (deceased) the brother of the appellant on the other. Bahoo deceased and his brothers were tried for the said Sardool's murder, but, as they were acquitted, the prosecution case is that the appellant Sohni was waiting for an opportunity to avenge his brother's murder, and this opportunity came on 1-7-1964, because the for victims of the occurrence and P.
2. Ws. Bahadur, Attaoo and Shahabal, brothers of the said Baboo, Anwar and Riaz deceased, as well as P. W. Sajwara, a cousin of the said deceased, were on their way to attend the Court of a Magistrate in Kamalia for proceedings under section 107, Cr. P. C. Further, according to P. Ws.
3. Babadur, and others, these proceedings had been instituted against the family of P. W. Bahadur by the appellant Sohni, therefore, as this appellant knew that they would be leaving their homes to go to Kamalia, he conspired with the other accused to ambush them. Bahoo deceased was going to the Court with P. W. Bahadur and as they approached the garden of one Hafizullah in Killa No. 18 of Square No. 48 of Chak No. 263/G. B., P. W. Bahadur, who at that time happened to be a little ahead of his brother Baboo, saw the appellant coming armed with other assailants. So, without thinking of his brother, he ran and took shelter. The appellant Sohni was accompanied by his son Machhia, and his nephew Bahli (one of the appellants before us) and according to the F.
1. R. Which he (P. W.
4. Babadur) lodged, the appellant Sohni was also accompanied by his nephew Nukra. By Sardool son of Suhla and by two other unknown persons who were later identified as Muhammad Yar alias Nama and Ramzan. The assailants were heavily armed. The appellant Machhia had a barchhi whilst Sardool had an hatchet. All the other assailants were armed with rifles or guns, and the appellant Sohni, who was leading them, gave a lalkara that he had come to avenge his brother's death. Bahoo (deceased) tried to run, but the assailants killed him by firing at him and also inflicting hatchet and spear blows to him. The assailants had come on horses and after they had gone away, P. W. Bahadur came out from where he was biding and saw that his brother was dead.
5. But as he heard a gun report and as he knew that his other brothers were also on the way to Kamalia and might have been attacked, he rushed in the direction of Chak No. 262/G-B. As he reached the bank of a canal, he saw his brother Anwar lying dead. And, according to the F. I. R., his brother P. Ws. Atta Muhammad and Shahabal informed him that the same assailants bad murdered Anwar. As they also told him that they had heard an alarm from the side of Chak No. 261/G. B., P. W. Bahadur went towards that Chak and he found that his brother Noora was lying murdered. He learnt that Noora had been murdered by the same assailants. He then ,decided to go and see what had happened in his house, but, on the way, his brother Sohni informed him that their brother Riaz had been murdered in .Chak No. 260/G. B. Near the house of one Chiragh. He, therefore, decided to go to the police station, and his F. I. R. Was recorded by M. H. C. Ghulam Haider, at Rajana Police Station, Lyallpur.
6. P. W. Nazir Ahmad, S. I. Police Lines, Lyallpur who was informed of the murders` by M. H. C. Ghulam Haider, commenced investigations, but as the investigations were prolonged, other Police Officers were also associated with these investigations. It is, however, sufficient to state here that the appellant Machhia and Sardool son of Suhla were arrested on 5-7-1974 and in due course the barchhi and the hatchet used by them in the occurrence, were produced at their instance. The shirts which they were wearing were also blood-stained, therefore, they were secured and forwarded to the chemical analyser with the crime weapons. All these recoveries were found to be stained with human blood. Next, as to the appellant Bahli, he was arrested on 23-10-1966 near Pull Bhawani in the area of Police Station Harrappa, and as he was in possession of an unlicensed gun and cartridges the same were secured. The appellant Sohni was arrested in Jhang District on 20- 12-1966 and the rifle and cartridges which he had in his possession were secured. Finally, although Ramzan and Muhammad Yar have not filed appeals, I would point out here that the former was arrested on 16-2-1965 and the latter on 28-4-1966, and a rifle and cartridges were recovered from the former.
7. After completing the investigations, the appellants and others were challaned together with Moharram, the grandson of Sohni (who died during the course of the trial.), and Farid and Nazu, the brother and nephew of the appellant Sohni respectively. Further all the accused were charged under section 120-B read with section 302, P. P. C. For the for murders and the appellants together with Moharram, Ramzan, Muhammad Yar and Sardool son of Suhla were also charged under section 148, P. P. C. And under -section 302/149, P. P. C., and a charge under the Arms Act was also framed against the appellant Machhia.
8. In support of its case, the prosecution examined eye-witnesses to prove each of the for murders, but,, contrary to P. W. Bahadur's statement in the F. I. R. None of the eye-witnesses, not even P. W.
9. Bahadur, stated that Nukra was even present at the time of the for murders, but in his place the eye-witnesses implicated the said Moharram. The prosecution also examined two witnesses, including a relation of the appellant Sohni, who both said that on the day prior to the murders, they had overheard the appellant "Sohni telling the other accused who was related to him that they should avenge his brother's murder but that Nazu, Nukra and Farid should not take part in the actual killing. Both these witnesses further stated that they had, therefore, immediately gone to Bahoo deceased and warned him that he and his brothers "were going to be attacked by the accused party."' The prosecution also produced evidence about the recovery of blood--stained clothes and weapons from Sardool and from the appellant Machhia, and the recovery of fire-arms from the appellants Sohni and Bahli and from Ramzan and Muhammad Yar. The various Police Officers who had conducted the investigations recorded statements, arrested the accused and effected recoveries from them, were also examined, as well as the Magistrates who had supervised the identification tests of Ramzan and Muhammad Yar.
10. The plea of the appellants and of the other accused was one of total denial and it is sufficient to state here that according to them they had been falsely implicated on account of enmity, and further all the accused denied, the recoveries alleged to have been made from them. They also denied that they had absconded, but the appellant Bahli admitted that he had not been at his village because he bad taken his father to Sahiwal for treatment,. Further Ramzan and Muhammad Yar also challenged the validity of their identification tests, but none of the accused produced any evidence in their defence.
11. The learned Additional Sessions Judge, Lyallpur, who heard the case, acquitted Fareed, Nukra and Nazu. None of the eye-witnesses implicated these three accused in the commission of the actual murders. The only evidence against them was on the charge of conspiracy, and this evidence was rejected as false. Next, as to the for murders, the prosecution had examined witnesses for each murder, and the learned Additional Sessions Judge held that the prosecution case was sufficient to prove the guilt of the appellants and of Sardool, Ramzan and Muhammad Yar for the murders of Bahoo de--ceased, Anwar deceased, Noora deceased and Riaz deceased because the ocular evidence of these for murders was corroborated by the evidence of motive, by the evidence of the recovery of the crime weapons (except for the recovery of a revolver from Ramzan which was held to be false) arid by the fact that the appellants as well as three other accused had absconded. He, accor--dingly, convicted the appellants and the three accused under section 148 read with section 302/149, P. P. C. However, on the ground treat there was enmity between the parties, he sentenced them to transportation for life and to a fine of Rs. 1,000 each or in default three years' rigorous imprisonment The appellant Machhia was also convicted under the Arms Act and' sentenced to one year's rigorours imprisonment. The sentences were to run concurrently.
12. The appellants filed an appeal in the Lahore Seat of the West Pakistan High Court against their convictions and they further stated that the appeal was filed on behalf of the other three accused also. A revision was also filed for the enhancement of sentences passed against the appellants and the other accused by P. W. Bahadur son of Allah Yar. But by a judgment dated 2-3-1972, a Division Bench of the Lahore High Court dismissed both the revision filed by P. W. Bahadur as well as the appeal filed by the appellants. However, whilst the learned Additional Sessions Judge had convicted the appellants and other three accused for all the for murders, the learned Judges of the High Court acquitted them on the charge of the murder of Baboo deceased but upheld their convictions for the murders of Anwar deceased, Noora deceased and Riaz deceased. Hence this appeal.
13. Mr. Bilal advanced a legal objection to the trial of all the accused in the case. This was that all the accused had been tried for for murders, in addition to other charges, in the same trial, therefore, the trial was illegal, because it was contrary to the mandatory provisions of section 234 of the Criminal Procedure Code, which prescribed that not more than three offences of the same kind committed in the space of one year could be tried together. But the charge against all the accused was also under section 120-B of the ' Pakistan Penal Code, and section 235 of Cr. P. C. Expressly permits the trial of a person for "more offences than one" if the offences have been committed in the course of the same transaction. And further as nine persons were tried together, the provisions of clause (d) of section 2.39, Cr. P. C. Would also be relevant.
14. Now sections 234 to 239, Cr. P. C. Are to be found in Granter XIX of the Criminal Procedure Code under the part which deals with the joinder of charges, and section 233, Cr. P. C. Read;--- "233. Separate charges for distinct offences.-For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.
15. Section 234, Cr. P. C. Reads; "(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences (whether in respect of the same person or not), he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) .------------------------------------------------ ".
16. Section 235, Cr. P. C. Reads: "(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) Offences falling within two definitions.----If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences, are defined or punished the person accused of them may be charged with, and tried at one trial for, each of such offences.
(3) Acts constituting one offence, but constituting when combined a different offence.---If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any one or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal, Code, section 71."
17. Section 236, Cr. P. C. Deals with the situation in which it is doubtful', what offence has been committed whilst the next two sections deal with the question of conviction. Finally, section 239, Cr.
18. P. C. In so far as it is relevant roads; "239. What persons maybe charged jointly.-The following persons may' be charged and tried together, namely
(a) persons accused of the same offence committed in the course of the same transaction ;
(b) .---------
(c) .----------
(d) persons accused of different offences committed in the course of the' same transaction;
(e) . ---------------------------------;
(g) . -----------------------; As the appellants as well as all the other accused in the case under appeal were charged under section 120-B, P. P. C., the obvious question which arises for determination is whether the case under appeal fell under section 234 Cr. P. C. Or under clause (d) of section 239, Cr. P. C. And in order to bring the case under the latter provision, the prosecution had to show that the offences for which the appellants and all the other accused were tried had been committed by them "in the course of the same transaction". TV further question then is of the meaning of the words "the same transaction". And as observed by Lord Wright in Babulal Chaukjrani v. King-Emperor (AIR 1938 P C 130) the question as to what constitutes the same transaction must be determined "on the basis of what appears on the face of the accusation". What appears on the face of the accusation in the instant case is that the appellants had conspired with the other accused to commit a series of offences in order toy wreak vengeance on the family which was responsible for the murder of the brother of the appellant Sohni. Would this not prima facie mean that the offences had been committed in the course of the same transaction? The charges in Babulal's case also included the charge under section 120-B, P.P.C., as in the instant case, and Lord Wright, who pronounced the judgment of the Judicial Committee, observed at page 133; "Whatever scope of connotation may be included in the words 'the same transaction', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt tacts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pur--suance of it."
19. I am, therefore, satisfied that there was no defect in the trial of the appellants.
20. Mr. Bilal then submitted that section 235, Cr. P. C. Was subject to section 234, Cr. P. C., therefore a person could not be tried for more than three offences even though they had been committed in the same transaction. But, the question before us is of clause (d) of section 239, Cr. P. C. And not merely of section 235. Cr. P. C. However, if section 235, Cr. P. C. Is subject to section 234, Cr. P. C. Then section 239. Cr. P. C. Also should be subject to section 234. Cr. P. C. Now these sections follow section 233, Cr. P. C. And are exceptions to the general rule laid down in section 233, Cr. P. C. That a person shall be tried separately for each charge. Further, sections 234 and 235, Cr. P. C. Deal with different situations and are independent of each other. I am fortified in my opinion by Lord Wright's judgment in Babulal's case. There, with reference to clause (d) of section 239, Cr. P. C.
21. Lord Wright observed; "The clause is expressly an exception from section 233 and enables a plurality of offences to be dealt with in the same trial. But it does not import either expressly or by implication the limitation set out in section 234 according to which not more than three offences of the same kind committed within the space of 12 months can be tried together or the limitation contained in section 235 (1), under which more offences than one committed by the same person can only be-- tried together if they are in one series of acts so connected together as to form the same transaction, in which case there is no specific limit of number. Nor is there any limit of number of offences specified in section 239 (d). The one and only limitation there is that the accusation should be of offences 'committed in the course of the same transaction'."
22. In my humble opinion, these observations state the correct law and I am unable to agree with the view taken by the East Pakistan High Court in Abdus Salam v. The State (PLD 1969 Dacca 425) and in Arshad Ali Khan v. The State (PLD 1960 Dacca 41) on which Mr. Bilal relied.
23. Turning now to the merits of the case, I would recall here that according to the Sessions Court, the ocular evidence against the appellants and the other accused was corroborated by the prosecution case for motive against them, and that motive was the desire of the appellant Sohni to avenge his brother's death. But as motive is double edged weapon Mr. Bilal submitted that the Sessions Court had erred in ignoring this aspect of the case. The submission is correct but the question was re-examined in the High Court, and the learned Judges have rightly pointed out (I say so with respect) that the ocular evidence was strongly tainted by enmity. This is because after the murder of the brother of the appellant Sohni, one Lai, the nephew of P. W. Babadur, who lodged the F. I. R. In the instant case, was murdered in 1957 or 1958, and the cousins of the appellant Sohni were tried for that murder but were acquitted. Then one Arif, another cousin of P. W. Babadur was murdered. Finally one Afzal Gaddi of Chak No. 264 was murdered shortly before the occurrence and the section 1.07, Cr. P. C. Proceedings instituted against P. W. Bahadur and his brothers bad been instituted, according to P. W. Bahadur, at the instance of the appellants, therefore, it is obvious that P. W. Bahadur and the other eye-witnesses of the for murders were extremely inimical to the appellant Sohni and his family. As admitted by P. W. Attaoo in his cross-examination "the accused are our staunch enemies". And the hatred of the eye-witnesses towards the appellants is proved by the fact that P. W. Bahadur bad falsely implicated Nukra. Farid and Nazu. The ocular evidence is, therefore not fit to be accepted without strong corroboration by independent and reliable evidence, and the question in this appeal is whether there is such corroboration of the ocular evidence.
24. The first of the for murders was that of Bahoo deceased, and the prosecution examined P. Ws.
25. Bahadur and Rajbah as eye-witnesses of the occurrence, but P. W. Rajbah had not been named as an eye-witness by P. W. Bahadur in the F. I. R. The Sessions Court held that P. W. Bahadur's failure to mention P. W. Rajbah's name in the F. I. R. Was because P. W. Bahadur had not seen the occurrence and had falsely claimed to be an eye-witness. It, however, accepted the evidence of P. W. Rajbah and convicted the six accused for this murder on the basis of P. W. Rajbah's evidence. The High Court in a careful appreciation of evidence held that P. W. Rajbah's evidence was also not fit to be believed, and, unlike the Sessions Court, it rightly did not place any reliance on the evidence of the recoveries including the recovery of firearms etc., therefore, it gave the benefit of doubt and acquitted all the accused of the murder of P. W. Bahoo deceased. Accordingly, the question before us is whether the prosecution has proved its case for the other three murders, and I would now briefly turn to the prosecution evidence in this respect, but as the case against Ramzan and Muhammad Yar also turns on the question of their identification, I will examine this aspect of the case after examining the ocular evidence of the murders.
26. The prosecution examined P. Ws. Attaoo, Shahabal and Saadullah as eye-witnesses of the murder of Anwar deceased. P. W. Attaoo and Shahabal said that they were going to Kamalia with Anwar deceased to attend the case against them in the Court of the Magistrate at Kamalia and when they reached the bank of the canal they saw "seven persons on for mares racing towards us.
27. Anwar deceased was a little behind us". Both the witnesses then said that they identified the assailants as their enemies so, without any regard for Anwar and without even giving him a warning, they ran for safety by wading through the canal and took shelter behind some trees.
28. Similarly. P. W. Saadullah said that when he saw the assailants coming be was on the canal service road, but Anwar deceased was "at a distance of one and a half killa from him". Therefore, he took shelter behind some trees. Further, according to the three eye-witnesses except for Sordool and Machhia the other five assailants were armed with rifles and guns, and these five assailants first fired at Anwar deceased and after Anwar had fallen down, Sardool and Machhia gave him kulhari blows and barchhi blows. Then the assailants rode away, and after some time P. Ws. Attaoo, Shahabal and Saadullah came out of thier hiding place. P. W. Bahadur arrived after some time and they informed of what had happened, and he informed them of Bahoo's murder.
29. According to the post-mortem of Anwar deceased, the deceased has eight wounds of which only one was a gunshot wound. The other wounds were stab wounds and incised wounds. These wounds are consistent with then evidence of the eye-witnesses that two of the assailants had hit the deceased with a barchhi and a kulhari. But the medical evidence is inconsistent with the unanimous assertion of the three eye-witnesses that all the five assailants had fired at the deceased. This discrepancy escaped the attention of the trial Court, whilst the learned Judges of the High Court were of the view that it was not material because the three eye-witnesses had, in order to save their own lives taken shelter behind trees. Therefore, they were not in a position to see how exactly the deceased had been killed. But the discrepancy is not between what the witnesses saw and the medical evidence but between what they beard and the medical evidence. According to the map (Exh. P. B.), prepared by P. W. Hidayatullah, the witnesses were only twenty or thirty karoms from the place of occurrence, whilst P. W. Attaoo claimed to have been only five or ten karams away. Be that as it may, whether the witnesses were hiding at a distance of five or thirty karams in view of what they said there was no possibility of confusing a shot or a couple of shots with the shots fired by all the five assailants.
30. There are also other circumstances which cast doubt on this ocular evidence. According to the prosecution. P. Ws. Sultan and Hameed had warned P. W. Babadur that the appellant Sohni and the other accused were planning to avenge the murder of Sohni's brother. Therefore, it was unlikely that Anwar would go alone to Kamalia. Further, both P. Ws. Attaoo and Shahabal said that they and Anwar had left together for Kamalia, but that at the time of the murder they were one and a half kills ahead of Anwar. This is very difficult to believe, and it is significant that these witnesses had not said so in their police statements. It is also difficult to believe that these witnesses, who were the brothers of Bahoo, would have been spared if they bad been anywhere around the place of the murder. It is true that P. W. Saadullah might have been spared because he was also related to the appellant Sohni. But the difficulty in accepting the evidence of this witness is that his name was not mentioned by P. W. Bahadur in the F. I. R. And, as the witness was also related to the appellant Sohni, the question of his presence required careful examination. The learned Judges of the High Court appear to have been of the view that the witness was a disinterested' witness, because be was related to one of the appellants, and as to the omission of his name in the F. I. R. As one of the eye-witnesses of Anwar's murder, the learned Judges were of the view that this omission was not material because P. W. Bahadur bad not seen the murder. But P. W. Bahadur did not claim to have seen the murder in the F. I. R. He only advanced the claim of being an eye-witness of the murder of his brother Bahoo, and he then referred to the other murders together with the names of the eye-- witnesses of those murders. Further, in his evidence, P. W. Bahadur clarified that he had never claimed to have seen Anwar's murder, but he said that when he arrived at the spot where the dead body of his brother was lying, he was informed by the witnesses, including P. W. Saadullah, of the murder. P. W. Saadullah supported this evidence so did P. Ws. Attaoo and Shahabal, the brothers of P. W. Bahadur. In these circumstances, the omission of P. W. Saadullah's name in the F. I. R. Cannot but cast doubt on his claim to have been an eyewitness of Anwar's murder, the more so, in view of the equivocal position taken by him to explain his presence at the scene of the crime. Ha only claimed to have been on his way to Kamalia when he saw the assailants coming. The Sessions Court took this statement to mean that as the witness had been challaned in the security proceedings in the Court of the Magistrate at Kamalia, he was a natural witness, and the High Court agreed with this finding. But what the witness said was "about for years ago at about 7 a.m. I was going to Kamalia and was on the canal bank of Pir Mahalcanal at a distance of about five squares from my village. At that time I saw Anwar deceased coming from the east towards that canal." I cannot read this evidence to mean that the witness had been challaned in the security proceedings or that he was going to attend them. Therefore bearing in mind the fact that he was not mentioned as a witness in the F. I. R. And the fact that P. W. Shahabal had not said to the police that the witness had seen the occurrence and had come to the scene of the murder after the departure of the assailants, a statement which P. W. Shahabal falsely tried to repudiate in the Sessions Court, the presence of P. W. Saadullah at the scene of the murder is very doubtful.
31. However, on the view taken by the Sessions Court and the High Court that the witness had been challaned with P. W. Bahadur and his brothers and cousins in the criminal case at Kamalia, he could not be a disinterested witness, because he would not have `been challaned unless he was inimical toappellants, the more so, as according to P. W. Bhadur and big brothers, even the case against them had been falsely instituted at the instance of the appellant. Further although related to the appellants, he was more closely related to P. W. Bahadur, and his claim to have run for safety at the sight of appellants itself means that he looked upon them as his enemies. Therefore, in my humble opinion, the finding that the witness was a disinterested witness is contrary to the evidence.
32. In the result, as the ocular evidence is tainted by enmity and is not reliable, it is not fit to be accepted without proper corroboration. Sh. Riaz Ahmad submitted that it was properly corroborated as held by the High Court, whilst Mr. Bilal's submission was that it was not, and that the High Court had erred in law in holding that the corroboratory evidence was sufficient to cure the infirmities in the ocular evidence.
33. As the eye-witnesses in the instant case are positively inimical to the appellants, it is obvious that their evidence cannot be accepted without corroboration. Next, as to the nature of the corroboratory evidence I cannot do better that to quote here a passage from this Court's judgment in Nazir and others v. The State (PLD1962SC269). There, Kaikaus, J. Observed ; "It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration.
34. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, there--fore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstances that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a cage which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circum--stances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question."
35. Then, on the facts of the case cited, the Court held that the ocular evidence though interested, was sufficiently corroborated by the fact that the number --of culprits implicated was reasonable and the further fact that the persons implicated were the enemies of the deceased, but this was on account of the express finding of the High Court that the eye-witnesses, though interested, were reliable witnesses. In the instant case, there is no such finding by the High Court with regard to the three witnesses whose evidence has been examined. And I am satisfied that the evidence of these witnesses is not reliable. Secondly, the enmity between the parties in the case cited had led to a round of litigation between them, whilst the enmity between the parties in the instant case has led to a chain reaction of murders. Therefore, on the rule laid down in the case cited, it wound not be safe to accept the evidence of P. W. Attaoo, Shahabal and Assadullah without corroboration by independent evidence of a reliable nature. And I would now examine the view of the Sessions Court and of the High Court on this question.
36. The Sessions Court was impressed by the fact that the prosecution had proved tae motive for the crime, but as rightly observed by the High Court, there was a blood feud between the parties, therefore, the eye-witnesses also had a strong motive for falsely implicating the appellants. This was a circumstance ignored by the Sessions Court, and further, on their own admissions some of the eye-witnesses appear to have lived on the fringes of the law and had other enemies also. In this background, the High Court was not impressed by the evidence of motive, and no exception can be taken to this view.
37. The Sessions Court was also impressed by the recoveries from the appellants, but beyond referring to them the High Court has not placed any reliance on them. The recoveries effected were numerous, and as I pointed out, on 5-7-1954 the appellant Machhia and the accused Sardool had produced their blood-stained kurtas. However, P. W. Beg and Sultan, who were the witnesses of these recoveries, were both closely related to P. W. Bahadur. This was unfortunate, as the murders had taken place in three Chaks and according to the prosecution there were for Lambardats who could have attested these recoveries, yet they were attested by the close relations of the first informant. It is true that P. W. Sultan was also related to the appellant Sohni, but the High Court was perhaps not impressed by these recoveries, because of the subsequent conduct of the investigations. Thus, according to the prosecution, nine days after their arrest, the appellant and the said Sardool offered to produce their blood-stained barchhi and kulhari which were thereafter recovered at their instance. The explanation for this delay in the recoveries only made matters worse for the prosecution. P. W. Hameed, one of the witnesses of the recoveries, said in his cross- examination that the appellant "Machhia and the said Sardool had offered to produce their weapons to the police on the third day of the murders but actually produced ten or twelve days after the murder . . . The Thanedar said to them that he was very busy and would get the weapons from them when he will have some free time." The explanation is ridiculous, the more so, as the third day of the murders would mean 4th July whilst the appellants and Sardool were arrested a day later. Additionally, P. W. Hameed was the witness examined by the prosecution to prove the case of conspiracy against the acquitted accused, and the Sessions Court held that the witness was totally dishonest. Therefore, I am astonished that the Sessions Court relied on the evidence of this very witness on an aspect of the prosecution case so crucial as the recovery of the blood- stained weapons. Next, as to the other witnesses of the these recoveries, he also was closely related to P. W. Bahadur, therefore, it is not surpirising that the High Court did not place any reliance on these recoveries. But the prosecution also claimed to have recovered fire-arms from the various accused and empties from the vardats. The recovery from., the accused Ramzan was, in the opinion of the Sessions Court, planted, but save for this item, the Court appears to have been impressed by the recovery of the fire-arms and the empties. It escaped the attention of the Sessions Court that the fire-arms and empties had not been sent to a fire-arm expert and further, despite the importance of the recovery of the empties, I have to state with regret that the witness of these recoveries, P. W. Lal son of Dilmir, was again a witness who was very closely related to the party of the P. W. Babadur, therefore the High Court rightly disregarded the evidence of all these recoveries.
38. The learned Judges of the High Court, however, agreed with the view of the Sessions Court that the ocular evidence was corroborated by the medical evidence. I may, therefore, repeat here that according to the eye--witnesses the assailants had fired guns and rifles at the deceased and had also given him blows with a hatchet and a spear in order to kill him. Now, as according to P. W. Dr. Abdul Ghafoor, who carried out the post mortem of the deceased, the deceased had a gun shot injury and eight stab wounds or incised wounds, the Courts were of the view that the medical evidence was consistent with the ocular evidence and therefore corroborated it. But, as I explained earlier, the gun shot injury is somewhat discrepant with the medical evidence, especially as the High Court has not accepted the evidence, of the recoveries. However, even on the assumption that the medical evidence is consistent with that of the eye-witnesses, can medical evidence corroborate ocular evidence which is tainted by enmity ? Medical evidence by itself end without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses have spoken the truth. This however, would be in special circumstances which definitely do not exist in the instant case. This is because the body of the deceased was lying in the open and because of the nature of the injuries to him which were apparent to the naked eye. The result was that any passerby who had seen the body of the deceased would have been able to say that the murderers of Anwar bad used a fire-arm and a weapon such as a hatchet. And further as all the eye-witnesses were the brothers or very closely related, and as they had ample time and opportunity to meet before their police statements were recorded, the mere fact that P. Ws. Attaoo, Shahabal and Saadullah were able to describe the occurrence in a manner which was consistent with the medical evidence would not, in my opinion, be of any corroborative value whatsoever. It is true that they had attributed specific roles to the assailants, and the roles thus assigned, which are consis--tent with the medical evidence, are those attributed to the appellant Machhia and to the accused Sardool. But P. W. Babadur had also attributed identical roles to Macbhia and to Sardool, and the witnesses admitted that they had exchanged informations with one another about t he two murders. Further, the description of the number of Bahoo deceased by P. W. Bahadur is almost identical to the description of the murder of Anwar deceased by these witnesses, yet the High Court had no hesitation in holding that P. W. Bahadur had not seen the murder of his brother Bahoo deceased. I agree with the concurrent view of the Courts that P. W. Bahadur had not seen the murder of Bahoo deceased, but he was nonetheless able to give a plausible descrip--tion of the murder, presumably from the injuries to his brother and from what he had heard. As a matter of fact, this exercise in reconstructing the occurrence by P. W. Bahadur was more accurate than the description of Anwar's murder, because the medical evidence was more consistent with it inasmuch as Bahoo deceased had seven gun shot wounds. And if P. W. Bahadur could describe the occurrence without having witnessed it, so could the other witnesses, therefore, the medical evidence In the instant case is of absolutely no corroborative value, and. In my humble opinion, the learned Judges erred in holding that it corroborated the ocular evidence.
39. The learned Judges of the High Court also agreed with the view of the Sessions Court that the abscondence of the appellants before them corroborant--ted the ocular evidence. But as Sardool and Machhia were arrested within for days of the murder, nothing turns on their absconsion. It is true that the other accused had absconded for longer period but, at best, absconsion is a very weak form of corroboratory evidence. As observed by Cornelius and Sbababuddin, JJ. In Mesal and another v. The Crown (1971 SCMR 239)
40. "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged, such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequences of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if the crime is allegedly committed in the prosecution of a feud, as in the present case."
41. These observations are fully applicable to the instant case, because, as pointed out by the learned Judges, there was a blood feud between the family of P. W. Bahadur and the family of the appellants. In these circumstances, the evidence of absconsion is clearly not sufficient to cure the many infirmities in the ocular evidence. But the learned Judges have not relied on any other corroboratory evidence, nor was Sh. Riaz able to refer to any other corroboratory evidence.
42. Therefore, as the ocular evidence is not fit to be accepted without corroboration, the prosecution has failed to prove the guilt of the appellants and of the other accused for the murder of Anwar deceased.
43. I now turn to the prosecution case for the murder of Noora deceased. It is based on the evidence of P. W. Sajwara, the brother of Anwar deceased, and of P. W. Murad, and unlike the evidence of P. Ws.
44. Attaoo, Shahabal and Saadullah, the High Court has given an express finding that these two witnesses were reliable witnesses. P. W. Sajwara was a natural witness but an inimical witness. As he had been challaned in the security proceedings at Kamalia, he said that he was going with Noora deceased to Kamalia, and unlike P. Ws. Attaoo, Shababal end Saadullah he was with the deceased at the time of the murder. He said that he saw some people riding towards them, and as they approached, he and Noora identified them, therefore, Noora tried to rush and "entered the herd of sheep of Murad at which the sheep and the mares got frightened. Noora picked up a gandali. The accused persons opened their fire on him. Noor fell down. Noora had struck a gandali blow on the head of Sohni before he was fired at . . . ." The witness then stated that Machbia and Sardool bad caused kulhari and barchhi blows to Noora deceased and that the assailants had then all ridden away on their mares. The High Court was impressed by this evidence the more so, as it was corroborated by the recovery of the gandali Further, the evidence of the witness is not in any way inconsistent with the medical evidence, because, according to the post mortem carried out by Dr. Abdul Ghafoor, the deceased bad for gun shot wounds and ten incised wounds or stab wounds- It is also not without significance that the evidence of this witness, which has impressed the Court and impresses me, is not inconsistent with the medical evidence.
45. Additionally, the prosecution had also examined P. W. Murad as an eye-witness of the occurrence He was a natural witness, as he was looking after sheep at the place where the occurrence took place, and as the deceased was chased by the assailants, he ran into the flock of sheep owned by the witness. Obviously the witness was in a position to see the occurrence, and his evidence fully supports that of P. W. Sajawara. Further, although the witness was related to the family of P. W.
46. Bahadur, he was more closely related to the family of the appellants, and his statement that the appellant Sohni and the accused Farid were his masairs was not challenged in cross. Examination.
47. It is also significant that he had neither been challaned in the security proceedings at Kamalia, not was he going to attend them. Perhaps because he was a very old man, he had kept out of the family feuds between the two families to both of which he was related. He was a disinterested witness, and the High Court has rejected as minor such discrepancies as there were between his evidence in the Sessions Court and his statement in the lower Court. As the evidence of the witness is thus not of as interested witnesses, it furnishes sufficient corroboration of the evidence of H. W.
48. Sajawara. Therefore, in the circumstances of the case, there would be no justification for interfering with the concurrent finding of the Sessions Court and of the High Court that the prosecution hard proved beyond reasonable doubt the guilt of the appellants for the murder of Noora deceased.
49. I now turn to the fourth and last murder of Riaz deceased. In order to prove this murder, the prosecution examined as eye-witnesses P. W. Falak Sher, the brother of Riaz deceased, P. W. Mst.
50. Sabban, the sister of Riaz deceased, and P. W. Lal. On an examination of the discrepancies between the evidence of P.W. Falak Sher and his earlier statements, the Sessions Court reached the conclusion that P. W.. Falak Sher had falsely claimed to have seen the occurrence, and as the High Court agreed with this finding, the prosecution cage must rest on the evidence of P. Ws. Mst.
51. Sabban and Lal. P. W. Mst. Sabban lived near her brother's house and she said that on the morning of the occurrence she heard the cry of her brother from outside her house. She came out and she saw her brother Riaz running from the west towards the north. She saw the appellants Bahli and Machhia chasing him. Riaz entered the house of P. W. Lal. Therefore, the appellants Babli and Machhia also entered that house. She also ran to P. W. Lai's house. Meanwhile her brother had jumped into the house of one Chiragh over the wall and got into Chiragh's kotha which he chained from inside. The appellants followed him into that house and broke the chain of the kotha.
52. Meanwhile the other assailants came armed with rifles and guns. They were riding on mares. They jumped off the mares. Meanwhile, the appellants Bahli and Machhia had broken the door of Chiragh's kotha and the assailants dragged Riaz out. The witness then described how the assailants attacked her brother and killed him.
53. Mr. Bilal drew our attention to the discrepancies between the evidence of the witness in the Sessions Court and her earlier statements. There are, no doubt, some discrepancies between the statements of the witness, but, in any case, as she was the sister of the deceased and in view of the enmity between her family and that of the appellants, her evidence cannot be accepted without corroboration, therefore, the prosecution had examined P. W. Lai. As this witness died before the case began in the Sessions Court, his lower Court statement was duly brought on record. P. W. Lai (deceased) had said in the lower Court that he was present in his house when he heard an alarm: "whereupon I went out. Riaz deceased . . . . . Came running and raising the alarm. He rushed into my 'Ihata. He was phased by Sihna absconder, Bahli accused and Machbia accused. The three accused persons were on foot. Sohni and Babli had been armed with rifle and gun respectively.
54. Whereas Machhia accused had been armed with a 'Barcha' . . "" The witness also said that there were for persons outside, but he could not recognise two of them. The witness then said that Riaz deceased scaled the wall of his house into the Ihata of Chiragh's house and locked himself in the kotha of Chiragh, but the assailants broke open that door, dragged Riaz out and murdered him.
55. Although this evidence was damaging to the case of the accused, the witness was not cress- examined even about his presence at the occurrence, therefore, it would be sufficient to corroborate the evidence of P. W. Mst. Sabban, unless of course it was tainted by enmity. Now, the witness was not directly related to the family of P. W. Bahadur, but he said that his mother-in law was the sister of the mother or the mother-in-law of P. W. Attaoo. The precise relationship about which the witness was cross-examined is not clear from the evidence recorded. Be that as it may, even if the mother-in law of the witness was the sister of the mother of P. W. Attaoo, the relationship of the witness to the family of the first informant was too remote and distant to make him an interested witness. Accordingly, I agree with the concurrent view of the Courts that that the prosecution has proved the guilt of the appellants for the murder of Riaz deceased also, therefore, the appeal must fail, despite the failure of the prosecution to prove the guilt of the appellants for the murder of Anwar deceased.
56. I now turn to the question of the identification of the two assailants who were not known to the eye- witnesses at the time of the murders, but were later identified as Muhammad Ramzan and Muhammad Yar. As according to the Sessions Court, these assailants were hired assassins, I can only express my astonishment that they were awarded the lesser sentence in a conviction for for murders. Be that as it may, the case against these accused turns on their identification, and Mr. Bilal submitted that the identification tests were not properly conducted. The prosecution had examined the Magistrates who had conducts these tests and the concurrent finding of both the Courts is that these tests were properly conducted. I see no reason for holding that these tests were not properly conducted. But the question of the identification of an unknown assailants does not depend only on the care with which the authorities may hold an identification parade, but also on other circumstances, such as the veracity of the eye-witnesses who have to identify the assailants, and Mr. Bilal pointed out that the identification parade of Muhammad Ramaan was held. On 22-2-1965 and that of Muhammad Yar in July, 1966. Therefore, he submitted that it was not possible for the eye-witnesses to identify the assailants after such a long period of time.
57. Unfortunately, neither the Sessions Court nor the High Court have referred to this aspect of the case and appear to have assumed that the witnesses were in a position to recollect the two assailants whom they had seen only once in their lives, a and that in very unusual circumstances. This assumption would, in my humble opinion, be justified for the identification parade of Muhammad Ramzan accused, because it was held within , even or eight months of the occurrence, but as the identification parade of the other accused was held more than two years after the occurrence I am disturbed by the possibility that the witnesses could not possibly have recalled the face or personality of a complete stranger after more than two years, and this apart from the question of the veracity of the witnesses. Further, a comparison of the results of the two identification parades only increase my doubts.
58. The identification parade of Muhammad Ramzan accused was conducted by Mr. H. M. Chauhan, resident Magistrate, Toba Tek Singh on 22-2-1965 and out of ten persons who attended the parade, eight identified Muhammad Ramzan. The identification parade of Muhammad Yar was conducted on 11-7-1966 by Raja Hassan, Naib Tehsildar, Toba Tek Singh, and only five of the nine persons who attended the parade were able to identify Muhammad Yar. It is obvious that this striking difference in the results of the two identification parades is connected with the lapse of time between the dates of the occurrence and the identification parades. Another circumstance which disturbs me is that although the Courts held that P. Ws. Babadur and Falak Sher were not eye-witnesses of the occurrence, they appear to have relied on the identification of Muhammad Ramzan and Muhammad Yar by these very witnesses. . Thirdly. P. Ws. Attaoo, Sbababal and Saadullah claimed to have seen the occurrence from their hiding place behind trees, and the view of the High Court was that as these witnesses were biding behind trees they were not able to see clearly whether the assailants were armed with rifles or guns. I pointed out earlier that I agree with this view, but it necessarily means that the witnesses had the same difficulty in identifying the assailants. I would repeat here that they claimed to have seen the assailants from a distance of more than a killa, and at that distance they could only have recognised familiar faces. Then they claimed to have run for shelter and seen the assailants from behind trees at a distance of twenty or twenty-five karams. As they were not able to distinguish the fire-arms used by the assailants because of the trees behind which they were hiding, they were necessarily not in a position to see any strangers so clearly that they would be able to identify them after months or years, and it is significant that the description of these assailants by P. Ws. Attaoo and Shahabal in their police statements was solely by reference to the colour of their complexion. It would, therefore, be hazardous in the extreme to rely on the evidence of these three witnesses about the identification of any strangers, but it escaped the attention of the learned Judges that this was the necessary corollary of their finding that these three witnesses were not in a position to see the occurrence clearly from their hiding place.
59. I would now examine the results of the identification parades in the light of this discussion, and, taking first that of Rarnzan accused, according to the prosecution, he was identified by eight out of ten witnesses, who bad seen the occurrence. But if the evidence of P. Ws. Babadur, Falak Sher, Attaoo, Shahabal and Saadullah is excluded, the accused was identified only by P. Ws. Lal and Mst.
60. Sabban and by Mopal (who was not examined). On the other hand, P. Ws. Sajwara and Murad did not identify him and identified some innocent stranger: Now, the prosecution cannot rely on the identification by Mopal because he was not examined, therefore, the result is that two witnesses identified him, and two did not. But amongst the two who identified this accused was P. W. Lal whose evidence impressed the High Court and has impressed me also. It must also be borne in mind that this identification parade was held within seven or eight months of the occurrence, therefore, in the circumstances discussed, whilst I might be inclined to a different view myself, the question is only of the appreciation of evidence, and we would not be justified in interfering with the concurrent finding of both Courts that the prosecution had proved the identification of the accused Ramzan. However, the identification of the accused Muhammad Yar is another matter. In the first place, even according to the prosecution, he was identified by only five eye-witnesses whilst for others identified innocent strangers. This was an extremely relevant circumstance which escaped the attention of both Courts. But according to both Courts, two witnesses had falsely claimed to have seen the murders, and if we exclude their evidence and that of P. Ws. Attaoo, Shahabal and Saadullah, the result of the identification parade was that Muhammad Yar was identified only by P.
61. W. Sajwara, whilst Mopal and P. Ws. Murad and Lal identified innocent strangers. This evidence is patently insufficient to prove that Muhammad Yar was one of the assailants. But taking the prosecution case as it is, and, even if we do not exclude the evidence of any of the alleged eye- witnesses, only five witnesses had identified Muhammad Yar, whilst for had not. And the for, who did not, include two witnesses who were held to be reliable witnesses. Bearing in mind the fact that the identification parade was held more than two years after the occurrence, it would be contrary to the settled law to hold that Muhammad Yar's identity bad been reasonably proved. Accordingly, in any view of the matter, in my humble opinion, the High Court erred in convicting Muhammad Yar.
62. I am aware that this Court cannot interfere in matters relating to the appreciation of evidence, but with the utmost respect, I have to state that the attention of the High Court does not appear to have been drawn to the relevant evidence. However, the difficulty in the way of this accused, Muhammad Yar, is that he did not file a petition even from the jail against the dismissal of his appeal by the High Court, nor was Mr. Bilal able to account for the failure of this accused to file al petition from jail. Therefore, we would not be justified in exercising our powers under rule 6 of Order XLIX of the Rules of this Court, the more so in view of the provisions of Chapter XXIX of the Code of Criminal Procedure. However, as in my humble opinion, there has been a mis--carriage of justice with regard to this accused, I venture to think that the Provincial Government will pass appropriate orders under Chapter XXIX o the Criminal Procedure Code.
63. With these observations the appeal is dismissed.
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