1. ANWARUL HAQ, J.-This appeal, by the lease of the Court, seeks to call in question the conviction and sentence of transportation for life recorded against the appellants by the Additional Sessions Judge, Multan, and upheld by a learned Judge of the Lahore High Court, for the murder of their co- villager Ahmed Nawaz.
2. The appellants are related inter se in the sense that Mohammad Akram, Dilshad and Nazir Ahmed are cousins and all are nephews of Abdul Ghafoor. According to the prosecution, they suspected that the deceased was carrying on an illicit liaison with appellant Abdul Ghafoor's daughter Mst.
3. Bholi, and accordingly they decided to finish him.
4. The incident is said to have taken place at about 6-30 a.m. On the 7th of July 1971 in a lane of Chak No. 80/10-R, in the jurisdiction of police station Khanewal. At that time, the deceased, accompanied by his cousin Abdul Manaf (P. W. 6), was returning to the village from their lands and when they approached near the Baithak of appellant Abdul Ghafoor, all the appellants emerged armed with various weapons. Mohammad Akram and Dilshad were carrying hatchets, whereas Nazir had a Lathi, and Abdul Ghafoor was apparently empty-handed. Abdul Ghafoor raised a Lalkara, urging the other three accused to kill the deceased so as to teach him a lesson for his immoral conduct.
5. Thereupon, Mohammad Akram and Dilshad gave him hatchet blows, and Nazir beat him up with his Lathi. They caused as many as twelve injuries to the deceased, including the fracture of the frontal and parietal bones. The nature of the injuries revealed that both blunt and sharp-edged weapons had been used. The deceased expired at the hospital at 9-15 a.m. Without regaining consciousness. The incident was witnessed by not only Abdul Manaf but also by two other persons named Mohammad Haroon (P. W. 7) and Zafar (P. W. 8), as well as by one Miskeen.
6. The appellants were arrested on the 9th of July 1971. At the instance of Akram a blood-stained hatchet as well as his blood-stained shirt and Chaddar were recovered from near the Baithak of his grand father Karim Bakhsh, where they had been buried underground. Similarly, the appellant Dilshad led to the recovery of a blood-stained hatchet, which was wrapped in a Kurta, and had also been buried underground. Nazir also led to the recovery of a blood-stained sota as well as a blood-stained shirt from under--neath a bedding lying in the Baithak of the aforementioned Karim Bakhsh. All these recoveries were witnessed by Mohammad A.I (P. W. 3), Abdul Manaf (P. W. 6) and the Investigating Officer, Saeedullah (P. W. 9), besides two persons by the name of Ghulam Mustafa and Jamadar Bundoo Khan who were, however, not produced at the trial. The reports of the Chemical Examiner and the serologist showed the presence of human blood on these articles.
7. While denying the prosecution allegations and pleading not guilty at the trial, the appellants contended that the deceased was a man of immoral character, and had made many enemies.
8. They asserted that he had in fact been killed during the hours of darkness, and the appellants implicated owing to suspicion and enmity In support of these assertions, they placed on the record copies of certain first information reports showing that the deceased and his cousin Abdul Manaf (P. W. 6) were involved in several criminal case. They also placed on the record a copy of the Khasra Girdawari (Exh. D H) for Kharif 1971 to show that at the relevant time no Chari crop was standing in the land cultivated by Haroon (P. W. 7), thus negativing his claim that he and Miskeen had gone to the fields for measuring the Chad crop.
9. The learned trial Judge discarded the evidence of Haroon (P. W. 7) and Zafar (P. W. 8), but placed reliance on the eye-witness account furnished by Abdul Manaf (P. W. 6). He also rejected the incriminating recoveries except that of the blood-stained hatchet at the instance of Dilshad. The learned Judge in the High Court has upheld the finding of the trial Court regarding Haroon and Zafar, but has reversed his finding as regards the genuineness of the incriminating recoveries. He has, of course, also placed reliance on the evidence of Abdul Manaf.
10. Leave to appeal was granted in this case to examine the contention that it was not safe to rely on the solitary testimony of one related and partisan witness, especially when he was materially contradicted by the medical evidence as to the time of the occurrence. Reference in this behalf was made to the condition of the intestines and the bladder of the deceased as disclosed by the post-mortem examination, namely, that the intestines contained gases and faecal matter, and the bladder was full, in spite of the fact that Abdul Manaf had stated at the trial that the deceased had performed his morning exercise and had taken a bath at a tube-well. Notice was taken of the normal practice of villagers to answer the call of nature before taking the morning bath.
11. As the prosecution has asserted that this was a witnessed crime, the first question is whether, the relevant witnesses had any reason or motive falsely implicate the appellants, or any of them. If not, then it will have to be seen whether their presence at the spot was probable or natural, and whether their evidence suffers from any inherent weakness or contradiction which might make it unsafe to rely upon the same.
12. I have already stated that the only motive alleged by the prosecution is that the deceased was suspected of having developed illicit relations with the daughter of appellant Abdul Ghafoor, who is the uncle of the other three appellants. This position was asserted by Abdul Manaf from the very beginning, i.e. At the time of the lodging of the first information report, and was reiterated and elaborated at the trial. In answer to certain questions in cross-examination, he explained that two or three times appellant Abdul Ghafoor and his son Hanif had asked him to curb the immoral activities of the deceased. The Courts below appear to me to have rightly accepted this evidence, which not only establishes the motive for the present crime, but also shows that there was no other enmity or ill-will between the parties, such as could persuade the relations or friends of the deceased to falsely implicate the appellants. In this background, there does not appear to be any reason for rejecting the ocular account as coming from interested or partisan witnesses. If at all there could be any motive for false implication, then it should have been against Abdul Ghafoor's son Hanif and not against his nephews, who had not previously played any part at all in connection with the illicit affair in question.
13. Abdul Manaf was not only a cousin of the deceased, but also apparently an associate in his various activities, thus making it quite natural for the two to move together. They were residing in the same Ahata and the houses of the other two witnesses namely, Haroon and Zafar are also located in the same vicinity. In these circumstances, their presence at the spot could be regarded as natural, as observed in M. A. Jalil v. The State (1), unless, of course, there are present on the record some circumstances to show that this could not be so. The presence of Abdul Manaf has been accepted by both the Courts below, and nothing was said at the Bar, except with reference to the medical evidence, with which I shall deal later, to show that this concurrent finding was not sustainable on the record. There does not appear to be anything unnatural or improbable in the deceased turning up in the lands of Abdul Manaf early in the morning, taking his morning exercise and bath and then returning with him to his home in the village. It may be stated that the path to the houses of Abdul Manaf and the deceased passes by the house of appellant Abdul Ghafoor.
14. It seems to me that the learned Assistant Advocate-General is right in saying that the trial Court took far too artificial a view as regards the presence of Haroon and Zafar and rejected their evidence on mere conjectures and surmises. The learned Judge in the High Court did not examine this aspect of the case at all, apparently for the reason that the counsel for the State might not have questioned this finding of the trial Court.
15. As already stated, both these witnesses lived in the same locality, and there would be nothing unnatural about their moving about in the lane at 6-30 in the morning in the month of July. It is of some significance that Abdul Manaf mentioned their names in the first information report which was lodged promptly after the arrival of the deceased at the hospital in an injured condition. There is no material at all to hold that these two witnesses were willing to lend themselves to a conspiracy to falsely implicate the appellants, even though they had not witnessed the occurrence.
16. They are admittedly neighbours of appellant Abdul Ghafoor and could not have become) instrumental in putting up a false case against him and his nephews.
17. Haroon (P. W. 7) had stated that earlier in the morning he had gone to his fields, along with one Miskeen (who was also named in the F. I. R. As an eye-witness but later given up by the prosecution) for the purpose of measuring his Chari crop which he had sold to Miskeen. The learned trial Judge referred to the certified copy (Exh. D H) of the Khasra Girdawari of Haroon's land for Kharif 1970 to Rabi 1972 and observed that this document did not show any standing Chari crop in Rabi 1971. It has to be pointed out that in July 1971 it would be the Kharif crop, and that judicial notice can be taken of the fact that ordinarily Chad fodder is grown by the villagers during Kharif, and there would be standing Chari crop in the month of July even if for any reason the necessary entry does not appear in the Khasra Girdawari. No presumption of correctness attaches, under the law, F to entries in the Khasra Girdawari, unlike those appearing in the Jamabandi. I am, therefore, of the view that the reason given by Haroon for having gone to his fields in the company of Miskeen earlier in the morning is not necessarily negatived by the Khasra Girdawari entries incorporated in Exh. D H. In any case, he being a resident of the same locality, any discrepancy about the reason for his being present at or about the place of occurrence is not fatal, to the account given by him, especially when it is kept in view that he had no reason whatsoever to falsely implicate the appellants. He has no particular connection with the deceased, nor any animus against the appellants.
18. Similarly, the evidence of Zafar (P. W. 8) was also rejected by the trial Court for completely untenable reasons. This man had stated that he had gone to the village saw mill to find out if it was working or not because he had some wood for sawing. The learned trial Judge rejected his evidence for the reason that before the committing Magistrate he had stated that h had taken the wood along with him to the saw mill but the sawing could no be done as the mill was found locked, but at the trial he stated that he had gone to find out if the mill was working. The discrepancy relied upon by the learned Judge appears to me to be more apparent than real, as the statement made by this witness in cross-examination is to the effect that "I did not state before the committing Magistrate that I had gone to the saw mill to have my wood sawn but could not do so as the saw was not working and was locked." There is a note by the learned Judge that the witness was confronted by his previous statement where it is so recorded. Now, it will be seen that the statement with which he was confronted does not explicitly state that the witness had in fact taken the wood along with him; all that he is saying is that he had gone to the saw mill to have his wood sawn but could not do so as the mill was not working. I am of the view that on the basis of this apparent discrepancy the evidence of an otherwise independent and neutral witness, who was a resident of the same locality, could not be rejected. The other reason noticed by the learned trial Judge was that the man was not sure whether at the time of the occurrence the sun had arisen or not, as he had made a contradictory statement on this point. This again to my mind is an inconsequential aspect of his evidence, as he had clearly stated at the trial that the sun had already arisen when the occurrence took place, whereas before the committing Court he had stated that the sun had not arisen but it was not dark and there was sufficient light. I consider, therefore, that reliance could safely be placed even on the testimony of Zafar (P. W. 8) as to the identity of the culprits, and the manner in which the deceased was murdered.
19. I now turn to the implications of the medical evidence, on which much stress has been laid by the learned counsel for the appellants. This evidence discloses that at the time of the post-mortem examination, the body was found clothed in a Bunyan and an underwear; that the stomach was empty but the bladder was full, and the intestines contained gases and stools. The argument of the learned counsel is that from the dress worn by the deceased at the time of the occurrence it can be infered that he must have gone out on some nocturnal errand during the course of which be was killed by some of his other enemies during the hours of darkness, and that this position finds confirmation from the fact that his bladder was full of urine and he had also not evacuated, which he should have ordinarily done if indeed he had taken his morning exercise and bath . As stated by his cousin Abdul Manaf.
20. As to the clothes worn by the deceased, it is correct that the doctor found that the body was clothed in a Bunyan and an underwear, but Abdul Manaf has stated that over these scanty garments the deceased had wrapped a Chadder, which fell down when he was assaulted by the appellants. It is true that the Chaddar was not produced at the trial as apparently it had not been taken into possession by the Investigating Officer from the spot, but considering that it was the hot month of July it is probable that the deceased may have gone out in Bunyan and underwear as apparently he was used to taking morning exercise and bath. I cannot, therefore, persuade myself to hold that from the nature of the dress worn by the deceased at the time of the incident an irresistible conclusion flows that he must have gone out during the hours of darkness for an immoral purpose. According to Abdul Manaf, even some of the appellants were wearing only an underwear with a Chola on the body.
21. It is true that ordinarily a person would urinate and evacuate his bowels before taking the morning exercise, but the question is whether reliable ocular evidence is to be rejected on the basis of something which should ordinarily have been done, but may not have been done on this particular morning by the particular individual concerned. It is to be noticed that although Abdul Manaf stated that the deceased had taken his morning exercise followed by a bath at a tube-well, yet he did not positively state that the deceased had also evacuated before commencing his exercise. It is, therefore, possible that on this particular morning the deceased may not have emptied his bladder and bowels due to a variety of reasons. It was precisely in these circumstances that the Court was constrained to observe in Usman Khan v. The State (PLD 1969 SC 293) that "of late a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While one can appreciate the anxiety shown by the Judges to test the credibility of the eye-witnesses with reference to the circumstances attending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these platters. It is desirable, therefore, to summon the doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert".
22. For the foregoing reasons I consider that both the Courts below were justified in placing full reliance on the eye-witness account furnished by Abdul Manaf (P. Nr. 6) and that the learned trial Judge was in error in, rejecting on artificial grounds, the disinterested evidence of Haroon (P. W. 7) and Zafar (P. W. 8).The learned Judge in the High Court failed to consider the question whether the evidence of these two eye-witnesses had rightly been rejected by the learned trial Judge. On the basis of this ocular evidence, the guilt of the appellants stands fully proved.
23. However, corroboration is also available in the incriminating recovery already mentioned. While the learned trial Judge did not place reliance on these recoveries, except the hatchet attributed to appellant Dilshad, the High Court has accepted the genuineness of all the recoveries and had also taken note of the fact that human blood was found on the weapon of offence and the articles of clothing recovered at the instance of the appellants other than Abdul Ghafoor. Nothing of any consequence was said by Mr. Shaukat A.I to challenge the correctness of the finding recorded in this behalf by the learned Judge in the High Court. The High Court has rightly observed that the discrepancy in the evidence of the recovery witness Muhammad A.I (P. W. 3) as to whether the shirt recovered at the instance of Nazir Ahmad was half-sleeved and that recovered at the instance of Mohammad Ikram was full-sleeved or it was the otherwise round, was not such as to throw doubt upon the genuineness of the recoveries as deposed to by this witness as well as by Abdul Manaf (P.
24. W. 6) and the Investigating Officer, Saeedullah (P. W. 9). There does not appeal to be any reason at all to hold that the Investigating Officer went to the extension of planting on the appellants these articles stained with human blood.No doubt, there was no recovery at the instance of Abdul Ghafoor but apparently had the direct motive to launch the assault, and it was he who incited his nephews to finish the deceased.
25. As a result, I am satisfied that all the four appellants been rightly convicted and sentenced. I would accordingly dismiss this appeal.
26. MUHAMMAD AFZAL CHEEMA, J.-I agree.
27. MUHAMMAD HALEEM, J.- I agree.