1. SHAHABUDDIN, J.-The five appellants were convicted by the Additional Sessions Judge, Gujrat, under sections 148 and 302/149, P. P. C. In respect of the murder of one Muhammad Anwar; and the sentence imposed on them for the murder was transportation for life except in the case of Murad who was sentenced to death. They were also sentenced to rigorous imprisonment for two years for the offence of rioting. The High Court of West Pakistan, Lahore, confirmed their convictions and sentences and dismissed their appeal; and this is an appeal by special leave from the judgment of the High Court.
2. The case for the prosecution was to the following effect. Anwar and the fathers of Aslam (P. W. 6) and Nadir (P. W. 7) had jointly cultivated the field where the occurrence took place and the deceased and these witnesses were sleeping in that field at night, as there was paddy in the field.
3. On the morning of 21st November 1956 at nimazwela, the appellants came to the field in question variously armed and at the instigation of Ghulam Ali appellant the other appellants attacked Anwar and caused him injuries as a result of which he died at the spot. The fatal injuries which were on the head were inflicted with a chhavi by Murad appellant. Receiving these injuries the deceased tried to run away but appellant Bahawal who had a chhavi Hakim who had a sota and Walayat who had a spear attacked him and caused him several injuries. P. Ws. 6 and 7 saw the appellants come and surround the deceased, but when Murad hit the deceased with a chhavi these witnesses ran away. P. W. 2, Ahmad Khan, who was in his field closely and had come on the scene hearing the disturbance as well as P. Ws. 3 and 4 Fateh Mohd. And Fazal Dad whose fields adjoin the place of occurrence and who also came there hearing the noise, saw the entire occurrence including the !a, accused leaving the spot after committing the crime. P. W. 5 Mushtaq Ahmad another eye-witness who happened to pass near the field of occurrence when it was taking place stated that he reached the spot on hearing the disturbance. First Information Report which contains the names of all the eye-witnesses was made by P. W. 2 at 8-15 a.m. At the police station which is four miles from the place of occurrence.
4. The motive alleged against the appellants was that about 3 years prior to the occurrence the deceased and four others, who had caused injuries to appellant Ghulam Ali, were sentenced to five years' rigorous imprisonment on a charge under section 307, P. P. C. But that nine months before the murder, Anwar and one of the other accused in that case were acquitted on appeal. All the appellants were related to each other. The statements of the appellants were to the effect that they had no motive to attack Anwar as it was another person and not Anwar who had caused injuries to Ghulam Ali in the prior occurrence and that nothing was done to the other accused who was acquitted with Anwar in the above-mentioned case. According to the appellants the deceased was a badmash and had several enemies. Their defence was one of denial and false implication. No witnesses were examined for them.
5. The trial Court believed all the eye-witnesses, but the High Court on a careful analysis came to the conclusion that Mushtaq was a chance witness and could not be relied upon. As regards Fateh Muhammad and Fazal Dad their finding was that it was not safe to act on their evidence. As regards the remaining evidence the learned Judges accepted it especially the evidence of Aslam and Nadir. But the latter two witnesses had been examined on the 22nd and not on the 21st, the explanation for it being that they had gone to another village. In the First Information Report they were mentioned as sleeping in the field and not as having seen the occurrence. While P. W. Aslam said that the occurrence took place at sarghiwela, witnesses Nadir and Ahmad Khan fixed the hour of murder as nimazwela. But the medical evidence with reference to the contents of the stomach of the deceased was that he had his last meal 3 to 4 hours prior too death. In view of these aspects of the evidence leave to appeal was granted to consider the question whether the High Court in appraising the evidence followed the principles which were consistent with the safe administration of justice in such cases. The argument advanced in support of the petition for special leave to appeal as well as during the hearing of the appeal was that in the circumstances stated above P.
6. Ws. 6 and 7 cannot be said to be disinterested and that P. W. 2 being an uncle of the deceased and there 'being no circumstances implicating the accused persons, 3 it could not be said that' the ' case for the prosecution wits established beyond reasonable doubt. It was pointed out that according to the medical evidence the occurrence must have taken place at about midnight hour that P.W.2 had stated that the moon at the time was overhead which indicated that the hour was about 1 a.m. As that night the moon rose at 8-12 p.m. And set the next morning at 9-20 a.m. And that, therefore, there was inordinate delay in making the information report to the police. Reference was also made to the evidence of P. W. 3 that the moon at the time of the occurrence was in the same position as the sun at peshevela. The theory suggested by the learned Advocate for the appellants was that the deceased was murdered at night when none was present and that later in the morning the accused were implicated on account of enmity and that was the reason why there was delay in giving information to the police.
7. Having been taken through the evidence by Mr. Nazir Ahmad Knan and after considering the various points raised by the learned Advocate we find that there was no violation of any of the principles applicable to the appraisement of evidence. On the other hand. We agree with the conclusions reached by the learned Judges of the High Court. The mere fact that the fathers of P.
8. Ws. 6 and 7 were partners of the deceased in cultivation does not make their testimony interested.
9. In the nature of things, these witnesses must have been sleeping in the field at night. 1t is true that the F. I. R. Does riot state in so many words that P. W. 2 saw them at the time the occurrence took place, but it is clear from that statement that P. Ws. 6 and 7 were sleeping there that night, There is no reason to think that they went away at midnight or that when the other witnesses heard the disturbance and came there from the adjoining fields these two witnesses did not were up and see the commencement of the attack on the deceased by the appellants. As stated already, their evidence was that seeing Murad hitting the deceased on the head with a chhavi and the other appellants surrounding him they ran away. That was obviously the reason why P. W. 2 did not specifically say that these two witness also saw the occurrence. Their non-examina--tion on the 21st does not justify the inference that they were persuaded. To give false evidence. It may be that they went to another village on important business or for fear of false implication because their fathers were partners in cultivation of the field and it is not unusual to suspect such partners in similar circumstances. As regards the hour of occurrence the evidence of all the witnesses except P. W. 7 was that the deceased was attacked in the morning at nimnzwela and the F. I. R. Mentions that hour. As sun rose that morning at 6-30 a.m., nimazwela could safely be taken as 5 to 5-30 a.m.
10. And, as stated already, F. I. R. Was made at 8-15 a.m. Having regard to the distance between the scene of occurrence and the police station it cannot be said that there was avoidable delay in giving information to the police, P. W. 2 at the end of the cross-examination did say that the moon was overhead at the time of occurrence, but that can hardly be taken as an accurate statement of the moon's position because the time of occurrence stated by him in the F. I. R. As well as in the evidence was nimazwela which, as stated already, could be only 5 to 5-30`h.m. P. W. 3's statement regarding the position of the moon at the time of the occurrence takes us nearer nimzwela than I a.m. The medical evidence to the effect that boiled rice water like fluid was found in the stomach does not prove that there was undigested or partly digested food in the stomach. It may be that the deceased drank some liquid about 3 to 4 hours before nimazwela. In the circumstances, the estimate of the doctor that the deceased must have had his last meal 3 to 4 hours prior to death cannot be accepted as correct.
11. The appeal is, therefore, dismissed.