1. DORAB PATEL, J.---Isab Khan was shot dead on the roof of his house in village Wandha Dhanianwala Dakhli Musakhel, District Mianwali a about 8-00 a.m. On 9-12-1970. The wife of the appellant (who was the brother of Isab deceased) also received fire-arm injuries, therefore, the appellant lodged a F. I. R., at Musakhel Police Station in District Mianwal in which he named the first two respondents in this appeal together wit, eight other members of their family for the murder of his brother Isab Khan and for the attack on his wife. I may point out here that the party of the accused and the party of complainant are closely related to one another, but, according to the F. I.
2. R., there was long-standing enmity between the two parties. The first two respondents and the eight other accused were tried under sections 302/307/149 and 148 of the Penal Code and by his judgment dated 24th April 1973, the Sessions Judge, Mianwah acquitted Rustam Khan and Alam Khan. The Sessions Judge however convicted all the other accused, including the first two respondents, under section 302/149, P. P. C. And sentenced the first respondent Sultan Khan to death whilst all the other accused, including the second respondent Saifullah Khan, were sentenced to transportation for life on this count. Further these eight accused, including the respondents Sultan Khan and Saifullah Khan, were sentenced under section 307/149 to seven years R. I. And to two years' R. I. Under section 148, P. P. C. All these accused were also fined Rs. 1,000 each.
3. All of them filed an appeal in the Lahore High Court which was heard with the reference from the Sessions Court under section 374 of the Criminal Procedure Code and the Revision filed by the appellant for the enhancement of the sentences passed under section 302/149, P. P. C. Against Saifullah Khan and the other seven accused. By their judgment dated 1-10-1974, the learned Judges of the High Court dismissed the appellant's Revision, rejected the reference from the Sessions Court and acquitted the respondents as well as other six accused on all the counts for which they had been convicted. The appellant challenged this judgment of the Lahore High Court in a petition for leave, and on the 3rd February 1976, this Court granted leave only against the acquittal of the two respondents Sultan Khan and Saifullah Khan.
4. The respondents and all the other accused denied all the charges against them and said that they had been falsely implicated on account of the long standing enmity between them and their relations, namely the party of the appellant. It was also suggested in the cross-examination of the eye-witnesses that the deceased and the appellant had many other enemies, and the murder of the deceased as well as the injuries to the appellant's wife had been caused by those other enemies during the night when it was not possible to identify the assailants. The accused also produced documentary evidence in support of their allegations of enmity.
5. The attention of the learned Sessions Judge was drawn to the enmity between the party of the appellant and the party of the accused and to the admitted delay in lodging the F. I. R. He, however, held that the delay in lodging the F. I. R. Was not relevant, because the appellant had not been cross-examined about this delay, and although the Sessions Judge pointed out that even according to the F. I. R., there was enmity between the eye-witnesses and the accused, he observed that the appellant, his wife, and his sister were "extensively cross-examined" but there were no material discrepancies in their evidence. He also held that these three witnesses were natural witnesses as the occurrence had taken place in their house, and that the evidence of these three witnesses was supported by the lower Court statement of D. W. Noor Khan. The Sessions Judge apparently accepted the claim of the prosecution that this witness was not related to the appellant and was a disinterested witness. The Sessions Judge also held that the ocular evidence was supported by the circumstantial evidence because, according to P. W. Ghulam Nadir, S. H. O.
6. There were 26 marks of firing on the walls of the house of the appellant, and, according to the Session Judge, this proved that a large number of assailants had participated in the occurrence.
7. The Sessions Judge, further, observed that the ocular evidence was corroborated by the evidence of motive, and by the evidence of abscondence of all the accused, which he stated was "a strong circumstance against them". He accordingly convicted eight out of the ten accused, but as Rustam Khan and Alam were minors at the date of the occurrence, he acquitted them on the ground that the possibility that these accused had been falsely implicated could not be ruled out.
8. The learned Assistant Advocate-General and Mr. Fazal-i-Haq, who appeared for the appellant, submitted that the High Court had erred in law in interfering with the appreciation of evidence by the Sessions Court. But as the ocular evidence was heavily tainted by enmity, the appreciation of evidence by the High Court can be challenged only if the learned Judges have misread the evidence about the enmity between the parties, and I would, first refer to the observations of the Sessions Court on this aspect of the case. The learned Sessions Judge observed:---- "The motive for the commission of the offence, as stated by the complainant appearing as P. W. 11, was the long standing enmity between the a parties. The accused and the deceased are collaterals, having Muhammad Khan their common ancestor. Samand Khan son of the said Muhammad Khan was the father of the deceased and Haq Nawaz complainant. His real brother Sodullah Khan was father of Sultan Khan and Khan Mir accused while Hayat Khan another real brother of Samand Khan was the grand-father of Pirain Khan, Bahadur Khan, Khan Mir Khan, Hayat Khan, Saifullah Khan accused and Alam Khan father of Khalas Khan (accused). In 1955 maternal grand-father of Sultan Sikandar P. W. Got a case under section 307, P. P. C. Registered against Saifullah, Hayat Khan, Bahadur Khan and Khan Mir son of Fateh Khan accused. In that case Haq Nawaz P. W. Appeared as an eye-witness against the above-mentioned accused. Two or three years thereafter Khan Mir and Sultan Khan accused sons of Sadullah Khan assaulted the complainant and his cousins Akbar and Sardar Khan and a case was registered against the said two accused. In 1959 Sadullah Khan father of Khan Mir and Sultan Khan accused was murdered and Samand Khan father, and Nawaz brother of the deceased and the complainant alongwith two others were challaned and tried for that murder. Two or three years after the murder of Sadullah Khan, his sons Sultan Khan and Khan Mir accused injured Mst. Hayat Bibi daughter of Haq Nawaz complainant and were sentenced to two years R. I. Each. In 1965 Alam Khan father of Khalas Khan accused was murdered and Isab Khan deceased, his brother Muhammad Nawaz, father Samand Khan alongwith his cousins Abbas Sardar and Sher Khan were convicted and sentenced. They were released after the expiry of their sentences in 1968. So these hostilities resulted in the murder of Isab Khan and a murderous assault on Mst. Alam Khatun."
9. Even on the view taken by the Sessions Court about the enmity between the parties, it is difficult to see how there is any error of law in the appreciation of evidence by the High Court.
10. However, the learned Assistant Advocate-General and Mr. Fazal-i-Haq both submitted that the eye-witnesses had consistently stated that only Sultan Khan and Saifullah Khan had fired the shots which had hit the deceased and the appellant's wife, therefore, according to both the learned counsel this part of the evidence of the eye-witnesses was reliable. Now in every criminal case the question is of the veracity of the witnesses, and even an inimical witness might be a witness of truth whilst a disinterested witness might utter falsehood for money. Therefore, the" nature of the corroboratory evidence required in any particular case to prove the guilt of the accused must depend not only upon the question whether the witnesses are interested or disinterested, but also upon the question whether the witnesses are witnesses of truth or not and with this observation I would briefly examine the ocular evidence.
11. The appellant said that-he was living in Karachi but he had returned to his village for Eid, and as on the day of the occurrence, he was going to catch the train for Karachi in the evening, he had got up early. At the time of the occurrence, he was sitting in the courtyard of his house with his wife, his sister, his father, his nephew P. W. Noor Khan (deceased) and two other persons when the ten accused suddenly appeared. His brother Isab Khan was sitting on a cot in the courtyard with a gun.
12. There was a stair-case which led to the roof of the house and, on seeing the accused, Isab Khan went up the roof armed with this gun which he had with him in order to frighten the accused and to protect his family members." the gun which Isab Khan had with him was loaded according- to the appellant but Sultan Khan fired at Isab Khan with his rifle. Isab Khan was hit on the head by this shot and later succumbed to his injuries. P. W. Zohran Khatoon although unarmed had also gone up to the roof with her brother but she did not receive any injury. The appellant then said in his cross-examination "I remained present in the courtyard till Isab Khan and Mst. Alam Khatoon were injured by the assailants and thereafter I took shelter behind threshhold of a Kotha and started firing at the accused in self-defence. I was holding a licensed gun while sitting in the courtyard, but did not fire a single shot till I remained in the courtyard. All the accused had fired three or four shots each before I took refuge. When they were firing, they were visible to me. The accused sere firing towards us". I would observe here that the description of the occurrence by the appellant's wife and sister of P. Ws. Mst. Alam Khatoon and Zohran Khatoon, was similar except that the latter said "I had come down from the roof to save my brother Haq Nawaz in the courtyard. I sept on running in the courtyard during the course of the entire occurrence to save my brother Haq Nawaz". This statement is difficult to believe the more so as neither the appellant nor his wife said that P. W.
13. Zohran Khatoon had kept running around in order to save the appellant and indeed the plea is absurd because the appellant had a gun which even according to P. W. Ghulam Qadir, S. H. O., he had fired in self-defence.
14. Mr. Nasim Hassan, referred us to many discrepancies between the statements of the eye- witnesses and the circumstantial evidence but I will only refer to those discrepancies which cast doubt on the veracity of the eye-witnesses.
15. Mr. Nasim Hasan tried very hard to persuade us that Isab Khan had been murdered at night and that the murder was an unwitnessed crime. He relied in support of this plea on the evidence of P. W.
16. Dr. Nasir Ahmad who had carried out the post-mortem of the deceased, on the evidence of P. W.
17. Mrs. Dr. Ghulam Rasool who had examined and treated P. W. Mst. Alam Khatoon and on the further circumstance that the deceased had been shot dead on the roof of his Kotha. Taking first the medical evidence, P. W. Dr. Nazir Ahmad had given an estimate of the time between the injuries received by the deceased and his death and the post-mortem and similarly the other Doctor had said that "the duration of the injury could be upto 16 hours at the time of my examination." On the basis of these estimates, learned counsel wanted us to hold that the occurrence had taken place well before 6-00 a.m., but the estimates given by the two witnesses were of a very tentative nature and there is no evidence about the submission of these doctors, therefore, I am not impressed by this submission, the more so as according to P. W. Dr. Nazir Ahmad "the stomach of the deceased) contains 5 oz fluid mixed with partially digested food material". Clearly therefore, the occurrence took place at least an hour, if not more, after the deceased had taken breakfast, at first sight the medical evidence supports the claim of the eye-witnesses that the occurrence had taken place at 8-00 a.m. But as the appellant, his sister and his wife said that on the day of occurrence they had all got up early because the deceased had to catch a train for Karachi, the submission was that the deceased must have taken breakfast before 6-00 a.m., in order to catch the connecting train for Karachi which according to learned counsel was at 7-15 a.m. This sub mission cannot be accepted because the accused failed to produce the E railway time table which would have shown the time at which trains were running. Nonetheless, I am compelled to observe here that these three witnesses gave an evasive answer about the time at which they and the deceased had taken breakfast and further in the F. I. R. Which was lodged at least five hours after the occurrence, the appellant had stated that Sultan Khan and the other nine accused had come immediately on the deceased finishing his breakfast. The appellant however, said in his evidence in the Sessions Court that the assailants had come "half an hour after our taking meals". This statement was obviously an attempt to improve the prosecution case in order to bring it in line with the medical evidence.
18. However, merely from this we would not be justified in holding that the occurrence had taken place in the dark.
19. I turn now to the appellant's conduct during the occurrence, and as his evidence was more or less the same as that of the other eye-witnesses, I would observe here that according to the appellant after Sultan Khan had raised a Lalkara "Isab Khan, deceased, went on 'the roof of the Kotha, Mst. P.
20. W. Zohran Khatoon also followed him". Then according to the appellant and the other eye- witnesses Sultan Khan fired the fatal shot at the deceased, then Saifullah Khan fired the shot which bit P. W. Mst. Alam Khatoon and it was only after this that the appellant fired the gun which he claimed was in his possession. To say the least, the appellant's conduct in not firing immediately is very strange, and it was in order to overcome this lacuna in the evidence that P. W. Zohran Khatoon had stated that she bad kept running around in order to protect the appellant. I have no doubt that this statement was false. But why did the appellant not use his gun immediately ? Neither Mr. Fazal- i-Haq nor the Assistant Advocate-- General threw any light on this question, but, according to Mr. Nasim Hasan, as the appellant and the witnesses were sitting in the courtyard of the house, they could not possibly have seen which of the ten assailants had fired the fatal shot. This submission receives some support from the site-plan according to which the eye-witnesses v ere standing at Point No. 3 whilst Sultan Khan was at Point No. 4 and it does seem to me that it would have been very difficult for persons standing at Point No. 3 to identify the assailants at Point No. 4. Additionally, according to P. W. Dr. Nasir Ahmad, the deceased bad a fire-arm wound of entrance on the right side of head 2" above the right ear and the wound of exit was on the left side of the head 2" above the left eye-brew and 3" above the left ear. Obviously, therefore, the deceased was not facing his assailant when the shot was fired as suggested by the eye-witnesses. He was either not looking in the direction in which the assailant who shot at him was standing, or he had turned his face to look at some one else. In either case, it seems impossible for the three eye-witnesses, who were in the courtyard, to identify the assailants who had fired the fatal shot. And it was for this reason that they all said that P. W. Zohran Khatoon had followed her brother to the roof of the house. But whilst the deceased was said to be armed with a gun, as it is no body's case that P. W. Zohran Khatoon had a gun with her, it is difficult to believe that this lady had followed her brother upto the roof of the house. But on the other band, if she was on the roof of the house near her brother, she would have been in a position to identify which of the ten assailants had fired at her brother. Mr. Nasim Hasan, therefore, referred us to the discrepancies between her evidence in the Sessions Court and her statement in lower Court. Learned counsel also referred us to the statement of P. W. Ghulam Qadir, S. H. O., that there "were 14 marks of firing on the wall of the Kotha on which Isab Khan was injured".
21. The submission was that the witness could not possibly have escaped unscathed if 14 shots had been fired near where she was, the more so as according to the eye-witnesses Sultan Khan was able to hit the deceased with the first shot fired by him. The argument is not without force, I have to observe that I am not impressed by the evidence of P. W. Ghulam Qadir, S. H. O. He has tried to improve on the prosecution case and the statement that 14 shots had been fired appears to be an exaggeration. However if P. W. Mst. Zohran Khatoon was with her brother, it is not possible to believe that the assailants would have spared her as any person on the roof would have been a very easy target. And, here Mr. Nasim Hassan referred us to another circumstance which escaped the Sessions Court's attention. The F. I. R. Was lodged after a delay of five hours but the appellant did not state in it that P. W. Zohran Khatoon had followed her brother to the roof of the house nor did P.
22. W. Noor Khan say so in his statement. In these circumstances, it is not possible to believe the claim of the three eye-witnesses that P. W. Mst. Zohran Khatoon had gone up to the roof with her brother, and the High Court rightly held that in the circumstances of the case, the eye--witnesses could not possibly have been able "to pinpoint as to which of the (accused) caused injuries to the deceased . . . . ." In any event, the conclusion thus reached by the High Court is supported by evidence.
23. There is yet another aspect of the case which is difficult to understand. Mr. Nasim Hasan stated that the claim of the eye-witnesses that the deceased had gone up to the roof of the house was too absurd to be, believed, because, in view of the number of assailants any person going to the roof in broad day light would have been a very easy target, as the wall of the roof was only a few inches high. As the appellant's explanation was that the deceased had gone up to the roof with his gun in order to protect his family, Mr. Nasim Hasan submitted that the appellant, his wife and his sister had deliberately and falsely stated that the appellant had gone up to the roof of the house armed with a gun whilst the learned Assistant Advocate-General and Mr. Fazal-i-Haq invited us to believe the statement of the eye-witnesses. However neither the learned Assistant Advocate- General nor Mr. Fazal-i-Haq was able to tell us what happened to the gun of the deceased. And further although P. W. Ghulam Qadir, S. H. O. Said that the deceased had gone to the roof of the house armed with a gun, he admitted that he had not found any gun on the roof when he went to the appellant's house and began investigations, and strange though it is although the appellant's claim was that the gun of the deceased was the deceased's licensed gun. P. W. Ghulam' Qadir, S. H.
24. O. Neither secured that gun nor the alleged license of the deceased nor did the prosecution produce evidence to prove this alleged license. But it was for the prosecution to produce this gun or to explain what happened to it and it is significant that the appellant did not state in, the F. I. R.
25. That the deceased had gone to the roof of the Kotha armed with a gun. Similarly P. W. Noor Khan said in his police statement that the appellant had a gun with him which he fired but he did not say that the deceased was also armed with a gun. In these circumstances, it is impossible to believe the statement of the eye-witnesses that the deceased had a gun with him, and even Mr. Fazal-i- Haq did not attempt to argue that the deceased had gone to the roof unarmed. Now the plea that the deceased would have gone up to the roof unarmed, in broad-day light when his house was surrounded by ten armed assailants is too absurd to be believed, and, on the other hand the appellant had to admit in his cross-examination that he had other enemies. Therefore, the High Court observed; "The possibility could not be ruled out that the deceased was murdered by a bullet fired at him by some unknown enemy from any of the adjoining or nearby Kothas and that he could neither be seen nor identified.- However the Sessions Court held that P. W. Noor Khan was a dis--interested witness, therefore, his evidence furnished corroboration of the evidence of the other three eye-witnesses who were admittedly hostile to the party of the accused. I regret to observe that the finding of the Sessions Court is based on a misreading of evidence. It is true that P. W. Noor Khan had attempted to pass off in his examination-in-chief as a totally disinterested witness. He had denied that he was the appellant's tenant and had claimed that he had land of his own. The appellant in his evidence also had attempted to pass off this witness as an independent witness, but the appellant's wife admitted in her cross-examination that P. W. Noor Khan has their tenant. Additionally, the case of the accused was that Isab Khan had murdered one of the members of their branch of the family and that when be was absconding to escape his trial for this murder, P. W. Noor Khan had given refuge to Isab Khan. The witness was cross-examined on this allegation and he first pretended to deny it by saying that he had given shelter to one Isab Khan. It was only on further cross- examination that he admitted that he had given shelter to Isab Khan and had been prosecuted for so doing. Mr. Nasim Hassan also referred us to the evidence of P. W. Alam Khan according to whom P. W. Noor Khan was a distant relation of the appellant. The appellant of course pretended ignorance of this kinship. This means that the appellant deliberately gave false evidence, and the view of the Sessions Court that P. W. Noor Khan was a disinterested witness, was based on a misreading of the evidence. I agree with the view of the High Court that this witness too was a very partisan and hostile witness. And as the ocular evidence is tainted both by long standing enmity and by deliberate falsehoods, no exception can be taken to the view of the High Court that it cannot be accepted without strong corroboration by evidence of an independent and reliable nature.
26. The Sessions Court was of the view that the ocular evidence was corroborated by evidence of motive, and it is clear from the admissions made by the appellant and his wife that Sultan Khan and Saifullah had greater reason for enmity towards the deceased than the other accused because of the criminal litigation between their immediate relations and the deceased shortly before the occurrence. But this is a case in which motive is a double-edged weapon, and just as Sultan Khan and Saifullah Khan harboured enmity towards the deceased, the deceased and his family had a grudge against Sultan Khan and Saifullah Khan, therefore, the High Court was not impressed by the plea that the ocular evidence was corroborated by the evidence of motive, and in my opinion, this view is the correct view.
27. I had pointed out that the Sessions Judge was of the view that the circumstantial evidence corroborated the ocular evidence and this finding had reference to the evidence of P. W. Ghulam Qadir, S. H. O. According to the witness there were 4 bullet marks on the front wall of the Kotha, 14 marks of firing on the eastern wall of the Kotha on which Isab Khan had been injured and 6 marks of firing on the western wall of the Kotha. As the Sessions Court inferred from this evidence that there were eight or ten assailants, Mr. Nasim Hassan had submitted that 26 shots could easily have been fired by three or four assailants. That is obvious and I have no doubt that Rustam Khan and Alam Khan have been falsely implicated. I have also no doubt that it did not need eight persons to cause the bullet marks and pellet marks which the Investigation Officer claimed to have seen. But it is not necessary to discuss this aspect of the case further because this Court refused leave against the acquittal of the six accused who had been acquitted by the High Court. This means that a very large number of assailants had been -deliberately implicated by all the eye-witnesses on account of their long standing enmity. In this background, I do not see how it can be contended that the view taken by the High Court is based on a misreading of evidence.
28. Mr. Nasim Hassan also submitted that the evidence of P. W. Ghulam Qadir S H. O. Was not fit to be believed because not a single bullet or R pellet had been recovered. The learned Assistant Advocate-General and; Mr: Fazal-i-Haq submitted that P. W. Ghulam Qadir could not secure any bullets or pellets because they had been embedded in the walls and any attempt to secure there would have damaged the walls. The question is of evidence, and P. W. Ghulam Qadir that he had probed the holes but not found any bullets or pellets in those holes. Now if the holes had really been caused by the shots fired from rifles and guns as alleged by the prosecution, it is absolutely impossible to believe that no bullet or pellet whatsoever would have been recovered. Secondly, the appellant claimed to have fired his gun from the courtyard of his house, but .The pellets of these shots were also not recovered. Thirdly, according to the appellant and his wife, the assailers had fired at least 40 or 50 shots. And even according to the ocular evidence either 2 or 3 shots being the first shots fired, had hit the deceased and the appellant's wife. It is, therefore, a little difficult to believe the claim of the prosecution that Sultan Khan and Saifullah Khan displayed remarkable marksmanship in firing their first 2 or 3 shots and that the other 30 or 40 shots only hit the walls of the house. Fourthly, none of the eye-witnesses have said that the assilants had picked tip the empties of the shots fired before they left, therefore, the learned Judges of the High Court were of the view that the number of shots attributed to the assailants was false and that the prosecution's failure to recover a single empty or a single pellet or bullet cast doubt on the ocular evidence. I agree with this view and in any case it cannot reasonably be argued that there is an error of law in the conclusions reached by the High Court.
29. As the circumstantial evidence is also inconsistent with the ocular evidence, the only evidence which could possibly furnish corroboration of the ocular evidence is the alleged abscondence of Sultan Khan and Saifullah Khan. Mr. Nasim Hassan pointed out that as according to the prosecution other 8 accused were also alleged to have absconded, the abscondence of Sultan Khan and Saifullah Khan was not of any corroboratory value. There is force in this submission.
30. Learned counsel also submitted that's abscondence was a very weak piece of evidence and referred us to the pro--nouncements of this Court on this question. The learned Assistant Advocate-- General and Mr. Fazal-i-Haq on the other hand submitted that abscondence could furnish corroboration of the ocular evidence, and cited authorities in support of their submission. I do not consider it necessary to examine the case law on the effect of the abscondence for two reasons. In the firs; place, the alleged abscondence was hardly one month. Secondly both Sultan Khan and Saifullah Khan denied that they had absconded, and they said that they themselves appeared before the police on 8-1-1971. P. W. Ghulam Qadir, S. H. O. Admitted, but in his cross- examination, that these; two respondents bad themselves appeared before him on 8-1-1971.
31. However, in order to support the prosecution case, he said that he had entrusted warrants of arrest for the arrest of the accused to a constable by the name Asif Khan, who had also submitted a report that the accused were absconding, therefore, he (the witness) had applied "for the issue of proclamations on the strength of the reports made by Asif Khan . . . . " As the witness did not claim that he had gone to arrest any of the accused, his statement that they bad absconded is not fit to be accepted on the short ground that it is hearsay. In order to overcome this difficulty, the witness stated that he had made applications before the Magistrate for the issue of warrants against the accused on the ground that they were obsconding, but although he was cross-examined on these allegations, the prosecution did not produce these warrants. And further, he had not stated before the lower Court that he had applied for the issue of proclamations against the accused. He even went to the length of falsely denying the admission made by him in the lower Court, but he was confronted with that statement. In these circumstances, the High Court was entitled, in it appreciation of evidence, to reject the evidence of this witness. In any event, in view of his cross- examination, the prosecution should have examined the constable who according to the witness had gone to arrest the accused. As it did not, there is no evidence of abscondence and the High Court rightly dissented from the view taken by the Sessions Court.
32. MUHAMMAD HALEEM, J.-I agree.
33. ANWARUL HAQ, J.-I agree.