' KHALIL UR RAHMAN, J.-Appellants Kaura and Sona sons of Karim Bakhsh resident of Chak Nasirabad, District Rahimyarkhan, have filed appeal against their conviction and sentence of death to each, under section 302/34, P. P. C. Awarded to them by the Additional Sessions Judge, Rahimyarkhan by his judgment dated 15th July 1976. The case has also been sent to this Court under section 374, Cr. P. C. For confirmation of the sentence of death. This judgment will dispose of both, Criminal Appeal No, 53 of 1976 (BWP) and Murder Reference No, 25 of 1976/BWP.
2. The incident resulting in the conviction mentioned above, took place on 11th July 1974, at about 12-00 noon in the area of village Wazirahmad Abad, Police Station Bhong, District Rahimyarkhan.
The prosecution case as disclosed in the police report (Exh. P. A.) lodged by Chauhar P. W. 6 and recorded by Rana Abdul Ghafoor A. S.
1. P. W. 4, at the Police Station, seven miles away from the place of occurrence at about 2-00 p.m., is that a year before, Allah Diwaya deceased a cousin of the complainant, had contracted second marriage with Mst. Shahro, sister of Kaura appellant. This was an exchange marriage as Mat. Lalan, sister of the deceased was married to appellant Kaura. A day before, at about 8/9 a.m. Kaura appellant, came to take Mst. Shahro (D. W. 1) to his house. Deceased Allah Diwaya demanded that he should, in the first instance, send his sister Mst. Lalan and then he (the deceased) would send his wife Mst. Shahro with him. This infuriated Kaura appellant who after some quarrel with the deceased over the issue, went back and while going back he had threatened the deceased. This incident was witnessed by Bhoral Mazari and Mathal Dahar (not produced at the trial). On the day of occurrence the deceased a little after sunrise, went to the field of Pir Bakhsh Mazari for helping him in the plantation of paddy seedlings. His first wife Mst. Asoodi had also accompanied him. After sometime Mst. Asoodi returned home. At about 12-00 noon, the two appellants armed with hatchets came to the house of the deceased. On account of the incident of the previous day, they began to maltreat deceased's first wife Mst. Asoodi and his mother. Anwar, a brother of the deceased conveyed the information to the deceased in the fields where he was working that the two appellants were beating his wife and his mother. At this Allah Diwaya deceased, with a soti in his hand, ran towards his house. The deceased was on his way when the two appellants left his house and proceeded towards him. On approaching the deceased the two appellants attacked him with their respective hatchets. The complainant who was grazing cattle at a distance of about one acre from the place of occurrence and Belawal P. W. 7 and Laik P. W. 10 who were ploughing fields at a distance of about one and a half acres, were attracted to the place of occurrence. All of them witnessed the occurrence. Each of the appellants, gave a hatchet blow on the head of the deceased which felled him to the ground. When he was lying prone, both the appellants gave a hatchet blow each on the chest of the deceased. In all appellant Kaura gave three hatchet blows on the face and Sona appellant inflicted two blows on the face and one hatchet blows on the left arm of the deceased. The witnesses attempted to overpower the assailants but they were threatened by them. It is, however, alleged that in this attempt the complainant Chaur gave two soli blows on "their head." The assailants succeeded in escaping away. When the witnesses approached the injured person, he had already expired.
3. Rana Abdul Ghafoor A. S. L P. W. 4, after recording the F. I. R. Proceeded to the spot. He conducted the preliminary investigation; prepared the injury statement Exh. P. E. And inquest report Exh. P. D. ; des-patched the dead body of the deceased to the hospital, for post-mortem examination. He took into possession blood-stained earth from the place of occurrence vide memo. Exh. P. F. At this juncture Ahmad Ali, S. H.
0. P. W. 9, reached the spot and took the investigation into his hands. He got site-plans Exh. PB. And Exh. PB/1 prepared from Saghir Ahmad Patwari P. W.
1. He could not arrest the assailants as they had absconded. He obtained warrants of their arrest Exh. PM and Exh. PM/1 from Magistrate First Class, Sadiqabad. He also applied to the Magistrate for taking action under section 87/88, Cr. P. C. Against the appellants vide memo. Exh. P. N. The appellants were arrested in another Case No, 126/74 under section 302/34, P. P. C. Of Police Station Kot Sabzal, on 27-9-1974, by Sh. Muhammad Hayat S. I. P. W. 12, the then S. H.
0. Of Police Station, Kot Sabzal. In that case Kaura appellant led to the recovery of blood-stained hatchet P. 2 which was taken into possession vide memo. Exh. P. H. And Sona appellant, also, got recovered blood-stained hatchet P. 3 which was taken into possession Fide memo. Exh. 1'. J. They were formally arrested M this case also.
' According to Ahmad Ali S. I. P. W. 9, the date of arrest is shown as 31-8-1974 which appears to be incorrect as according to Sh. Muhammad Hayat S. I. P. W. 12, they were arrested on 27-9-1974. We have seen the original statement of P. W. 9 Ahmad Ali and it appears that date of arrest was originally shown as 1-9-1974 but was later shown as 31-8-1974. In this case, the S. I. Also recorded the statements of Khan Muhammad and Allah Diwaya P. Ws. Who were the recovery witnesses of hatchets in Case No 126/74 of Police Station, Kot Sabzal.
4. Dr. Abdul Sattar P. W. 5, Medical Officer District Headquarters Hospital, Rahimyarkhan, performed the autopsy on the dead body of Allah Diwaya deceased and found the following injuries on his person "(1) Lunar shaped incised wound making 2/3 of a circle on head top running 2" above and behind left ear overhead top and anterior end finishing 3" anterior and medial to its other end. It was cutting scalp, skull, membranes and part of brain, the wound was inflicted obliquely.
(2) Antero posterior incised wound over left shoulder on the top 5" x 14" spindle shaped cutting bone underneath.
(3) Transverse incised wound over left angle of jaw 2" x 4 x r.
(4) Anteroposterior incised wound along lower border of left jaw below angle 14' x x 4".
(5) Oblique incised wound 9k" x 1" over centre of chest in front running from 2' above medial end of clavicle cutting clavicle sternum and ends at the 8th costal cartilage at right costal margin. Lung visible through it.
(6) Incised wound 1" x 4" x 4" on right forehead.
(7) Abrasion over nose.
(8) Anteroposterior contusion with parallel line 6" x 1" over right pectoral muscles on right anterior axillary border.
(9) Vertical incised wound 14" >t 4" x r below left acromion."
' In thorax, sternum was cut oblique throughout vertical length. Pleura was cut under the anterior lung margin. Stomach was half full and contained semi-digested food matter. The cause of death, in the opinion of the doctor, "was shock and hemorrhage with injury to the brain and chest resulting from sharp and blunt weapons". All injuries were ante-mortem. In the ordinary course of nature, they were sufficient to cause death. Probable time between injuries and death was immediate, the time between death and post-mortem was about 24 hours. While under cross-examination, the witness is of the view that injuries Nos. 7 and 8 were caused with a blunt weapon. Injury No, 1 could be caused by a hatchet and the same could also be caused by a sharp-edged kassi.
5. Appellant Sona when examined under section 342, Cr. P. C. Denied the occurrence and pleaded that he has been involved in this case on account of his being real brother of Kaura appellant.
However, Kaura appellant gave his own version of the occurrence. He stated that a week before the occurrence he had gone to Wazir Ahmad Abad and met Allah Diwaya deceased. He told him that his sister Mst. Lalan appellant's wife, was of low character and requested the deceased that he should tell her to =end her ways. The deceased promised accordingly. However, the deceased did not visit his house. So the appellant again visited his house on the day of occurrence. He was alone.
He repeated his earlier request in the presence of his sister Mst. Shahro D. W. 1, wife of the deceased.
This time the deceased again gave the same reply. When the appellant was returning home, the deceased Allah Diwaya and his wife Mst. Shahro, accompanied him to some distance. The appellant told the deceased that if he did not visit his house and his sister Mst. Lalan did not mend her ways, he would kill her. At this deceased Allah Diwaya got infuriated and gave the appellant a stick blow on his head telling him that how did he dare to say that he would murder his sister. The appellant started bleeding. The deceased gave a second blow on his head. The appellant apprehending death at his hands, in his self-defence, gave him hatchet blows, as a result of which he fell down unconscious. According to the appellant none except Mst. Shahro, witnesses the occurrence. The appellant proceeded that thereafter he went to his house and saw that Mst. Lalan.
Mst. Karam Khatun, his wives and Mst. Mehar Khatun, his brother's wife were murdered in his Kotha.
He examined Shahro D. W. 1 in support of his version. She supported the stand of Kaura appellant in all the necessary details. According to her the occurrence took place one and a half kanals away from the house of the deceased. She states that after Kaura appellant had given the first hatchet blow to the deceased, she fainted and when she regained consciousness, she saw that Allah Diwaya was breathing his last and Kaura appellant was not there. She claims that none else, except her, had witnessed the occurrence. She admits in cross-examination that Anwar, Mst.
Asoodi, also lived in the house of Allah Diwaya. Kaura and Allah Diwaya deceased talked in regard to the character of Lalan in her presence and none else heard the talk. Kaura appellant came to the house of the deceased at about 8/9 a.m. On the day of occurrence and stayed in the house till his departure. She admits that Kaura appellant had a hatchet with him. She has also admitted that Kaura appellant did not name any person with whom Mst. Lalan was carrying on She also denied the suggestion that Kaura appellant was annoyed as the deceased had refused to allow the witness (Mst. Shahro D. W.) to visit her parent's house.
6. The prosecution, at the trial, relied on the following pieces of evidence :---
(i) the motive as disclosed by Chouhar P. W. 6 and Belawal P. W. 7 ;
(ii) the ocular evidence given by Chauhar P. W. 6 (complainant), Belawal P. W. 7 and Laic P. W. 10 ;
(hi) the recoveries inter alia of weapons of offence i,e, hatchet P. 2 recovered from Kaura appellant and hatchet P. 3 recovered at the instance of Sona appellant
(iv) the medical evidence, and
(v) the ascendance of the appellants."
7. The learned trial Judge has disbelieved the evidence of motive. The prosecution sought to prove motive from the statements of Chauhar P. W. 6 and Belawal P. W.
7. According to these witnesses, Kaura appellant visited the house of the deceased, a day before the occurrence and wanted to take his sister, Mst. Shahro with him. The deceased demanded that he should send his sister Mst. Lalan back to the house of the deceased before he could permit Mst.
Shahro D. W. To go to her parents. This annoyed Kaura appellant who while leaving the house of the deceased had threatened him. Chauhar P. W. 6 was supported by Belawal P. W. 7 in this aspect of the case. The name of neither of them has been mentioned in the F. I. R., according to which Bhoral Mazari and Mathal Dahar were present in the house of the deceased at this occasion. They have not been examined as the prosecution witnesses. In my view, therefore, the trial Judge was justified in disbelieving this part of the prosecution case. He then found that the ascendance of the appellants has been established and this circumstance could be used against them. Recovery of the incriminating articles was made in case F. I. R. No, 126/74 of Police Station Kot Sabzal and there was no evidence in this case that these weapons were, also, used in the occurrence in question. He has, therefore, rejected the evidence of recovery. He is of the view that the medical evidence corroborates the ocular testimony. In the ultimate analysis of the evidence, however, he has mainly relied on the ocular evidence to base conviction. He has rejected the defence version as according to him Mst. Shahro D. W. 1 being sister of the appellants, is not an independent witness. Her husband having died in the occurrence, she had a motive to save her brothers. In any case, according to the learned trial Judge, even if it be assumed that the deceased had caused two simple injuries with a soli, the assault was not sufficient enough to provide apprehension of death or grievous hurt to Kaura appellant so as to justify the killing of Allah Diwaya deceased.
8. Learned counsel appearing for the appellants has addressed double pronged arguments, pointing to a number of circumstances. In the first place he has argued that the prosecution case suffers from inherent infirmities and therefore, the prosecution version shall have to be rejected in toto. In the second place he contended that the defence version is not only plausible but finds support from the prosecution evidence. In any case, according to him, even if the defence has been able to create reasonable doubt as to the plausibility of the defence version, the benefit of doubt should go to the appellants. He referred to Safdar Ali v. Crown (1). In elaborating his first contention he referred to the following circumstances :- "(a) The three eye-witnesses are closely related to the deceased and are therefore, interested.
Chauhar P. W. 6 is the first cousin of the deceased and his first wife Mst. Asoodi is the sister of this witness. Laik P. W. 10, is the first cousin of Chauhar P. W. Whereas Belawal P. W. 7 is real brother of Chauhar P. W.
(b) Two persons, namely Bhoral Mazari and Mathal Dahar mentioned in the F. I. R. As the witnesses of the incident of a day before the actual occurrence which according to the prosecution provided motive of the crime, had not been produced. The presumption would be that if produced they would not have supported the prosecution case.
(c) According to Belawal P. W. 7, Sardar Ghulam Rasul and so many other persons of the locality came to the spot after the occurrence and incident was narrated to them, yet none of them has been examined as a witness. The house of Kalu Kosh is close to the place of occurrence, yet he has not been produced. The witnesses have given sequence in which the injuries were inflicted so meticulously that it should be presumed that the F. I. R. Was lodged after the post-mortem examination of the deceased. He sought strength from the circumstances that Chauhar P. W. 6 has admitted that the police had obtained (1) PLD 1953 FC 93 his thumb-impression on a writing, at the spot. He concluded that in any case, the F. I. R. Was lodged at the spot after full deliberations.
(d) The location of the place of occurrence when judged in the light of the statements of the eye- witnesses, is not the place of occurrence as given in the site-plan Exh. P. B. According to Chauhar P.
W. 6, the place of occurrence is 4/5 acres away from his house. According to P. W. 1 Saghir Ahmad Patwari, the houses of Chauhar and Laik P. Ws. Are 1 i/2 acres away towards the west of the Basti of Allah Diwaya deceased. According to the site-plan the place of occurrence is towards the south east of Basti of Allah Diwaya. According to Belawal P. W. 7, Chauhar complainant P. W. 6 and the witness lived in the same house and their houses are two acres away from the house of the deceased towards east. He was sloughing field one acre away from his house towards the west.
The occurrence took place one acre away from his field towards the east and was one acre away from his house towards the east. He denied that he was ploughing the cotton field. According to site-plan Exh. P. B., two witnesses, namely Belawal and Laik, are shown ploughing cotton field at Point No, 3.
(e) In the F. I. R., the complainant Chauhar P. W. 6 stated that : {{URDU TEXT}} ' At the trial however, this witness omitted this fact in the examination-in chief. During cross- examination he admitted to have caused 1/2 blows to Kaura on his head and these blows were given to Kaura when he and Sona appellants were running away from the place of occurrence.
According to Belawal P. W. 7, Chauhar T. W. Gave two soli blows on the head of Kaura when the accused were giving blows to the deceased. According to Laik P. W. 10, Chauhar P. W. Caused 1/2 blows to Kaura appellant from behind.
(f) According to Laik P. W. 10, the soli of Allah Diwaya deceased was lying at the spot and it was blood-stained. This soli however, was not taken into possession by the police. According to the learned counsel this was with the design to shelve the defence version.
(g) P.W. 7 Belawal, admitted before the Committing Magistrate that Kaura appellant was bleeding from his forehead. At the trial he denied this fact but he was duly confronted with his statement made before the Committing Magistrate."
9. Elaborating the second aspect of the argument that the defence version is more plausible, he pointed out that presence of Mst. Shahro D. W. 1 at the place of occurrence was admitted by Belawal P. W. In his statement before the Committing Magistrate. Although he denied this fact at the trial yet he was duly confronted with his statement made before the Committing Magistrate.
Mst. Shahro's presence being admitted, the version of the occurrence given by her as D. W. 2, cannot be lightly ignored. She was the wife of the deceased and therefore, even at the risk of the involvement of her own brothers, would not lie so as to designedly save the murderers of her own husband. The defence version from the start of the trial was put to the prosecution witnesses. When confronted with the situation that the suggestion made to Chauhar P. W. 6 that Kaura appellant came to the house of Allah Diwaya deceased, 'a day' before the occurrence to inform him that his sister Mst. Lalan was a bad character and that he should ask her to mend her ways, rather supports the prosecution version, the learned counsel stated, at the bar, that he was counsel for the appellants at the trial and he, in fact, had put a suggestion 'seven days' before the occurrence and not 'a day' before the occurrence as recorded in the statement. He explained that after he had obtained the copy of the statement, he pointed out the error to the learned trial Judge but he did not correct the statement of the witness. Learned counsel wants us to read "seven days before the, occurrence" instead of "a day before the occurrence" in the suggestion made to this witness. He contended that the motive as alleged by the prosecution having been rejected, the defence version remains to be considered. It was highly probable that a brother when informed that his sister would be killed on account of her being a woman of bad character, would retaliate to it.
10. Learned counsel for the appellants criticized 'that the learned trial Judge was not justified in using the factum of the abscondence of the appellants against them. He pointed out that although the prosecution had I led evidence to show that the accused remained absconded for some time, yet the circumstance was not put to the appellants when they were examined under section 342, Cr. P. C. We are inclined to agree with the learned counsel for the appellants and hold that the factum of abscondence cannot be used against the appellants.
10.
11. The learned counsel for the State, on the other hand, argued that both sides having admitted the occurrence, the essential aspect of the case which would fall for consideration will be whether the prosecution has been able to prove its case or whether Kaura appellant has been able to make out a case of acting in the exercise of his right of self-defence. He pointed out to a number of circumstances to argue that the learned trial Judge was justified in rejecting the defence version and that the prosecution has been able to bring home guilt to the two appellants. He contended that time of occurrence is not in dispute. The F. I. R. Was lodged promptly in which both the appellants were named and specific part was attributed to each of them. The sequence in which the injuries were inflicted was given in a meticulous detail which corroborates the ocular version. It was a day time occurrence. The prosecution witnesses have not been shown to be interested to falsely implicate the two appellants. There has not even been a slightest suggestion that there was any acrimony between the parties much less an element of animosity. Even if it be accepted that Kaura appellant alone had come to visit the house of his sister, there was no occasion for him to be armed with such a lethal weapon like a hatchet with 9' blade. Any minor discrepancy in the statements of the witnesses as regards the description of the place of occurrence, is not sufficient to hold B that the eye-witnesses had not seen the occurrence. In this part of the country the people do not reside in the main villages but have their abodes in their respective land. The place of occurrence is among the land of the deceased and the witnesses. The natural witnesses of the occurrence would therefore, be the relations of the deceased. P. W. 8 Rahimun is a witness of the recovery of the blood-stained earth. This witness is not shown related to the deceased. The statement of this witness belies the statement of Mst. Shahro D. W. That the occurrence took place at a distance of 1 kanals from the house of the deceased.
11. We have given our considered thought to the arguments addressed at the bar and have gone through- the record of the case carefully. In cases where two versions of the o ccurrence are put forward it is as necessary to place the defence version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the proper estimation of the extent to which the charges may be held to have been proved as it is to examine the prosecution case side by side with defence case, in reaching a decision on the accused's special pleadings. Reviewing the evidence the Court will keep in view the principle that while the burden of proving the general issue of the accused's guilt lies, from first to last, upon the prosecution, it is no duty of the prosecution as embodied in section 105 of the Evidence Act, to examine all possible defences that might be taken on behalf of the accused, and to prove that none of these defences would be of any assistance to him. After an examination of the whole evidence, as laid down in Safdar Ali's case
(1) if the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. It will be in the light of this formulation that we propose to consider the probabilities of the two versions.
13. Great emphasis has been laid to contend that as the three witnesses of the spot are related to the deceased, they are therefore, in the category of interested witnesses and their testimony cannot be accepted unless subjected to the well-settled tests of credibility i,e, corroboration from independent source etc. The question has often been raised in the past. To our mind mere relationship of a witness with the deceased does 4ot render him an interested witness unless it is shown that the witness has some motive to falsely implicate the accused. Even in the case of an interested witness it cannot be laid down as a rule of universal application' that uncorroborated testimony of such a witness shall have to be rejected in all such cases. In Niaz v. State (2) the rule laid was :- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it.
' In Shihab Din v. State (3) it was observed :- "The mere relationship of witnesses does not necessarily render a
(1) PLD 1953 FC 93
(2) PLD 1960 SC 387
(3) PLD 1964 SC 177 ' Witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed."
' In a more recent case namely Roshan v. State (1) the view taken was :- ' there is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that was so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was a rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness."
14. However before discussing the ocular account it is necessary to observe that, as earlier noted, the mainstay of the prosecution case is the deposition of three eye-witnesses. The supporting so- called independent corroboration is not forthcoming. Prosecution has miserably failed to prove the alleged motive. Two witnesses in that behalf-Bhoral Mazari and Mithal were not examined. Instead, it was sought to be introduced and proved through serious improvements in the depositions of two eye-witnesses Chauhar and Belawal. They were duly confronted with their previous statements.
Otherwise too, the motive part of the prosecution case does not inspire confidence. It has rightly been rejected by the trial Court. Similarly, the recoveries of hatchets have also been rightly kept out of consideration. There was no evidence not even any formal statement, that they were used in the occurrence. The alleged recovery is some months after the occurrence from an open place. There is no certainty that the blood would not have disintegrated unless planted afresh. Even if blood was found, there is no certainty that it was not the blood qua the other. Occurrence. Recoveries having once been rejected, it would not be proper tore-introduce them in any other form either to discredit the defence version or to support the eyewitnesses. As would be presently shown, otherwise too on merits, it would not be possible to do so. After excluding abscondence, as corroboratory factor for reason mentioned in Para. 10 above and also for the reason that abscondence might be in connection with the other triple murder case in which we have maintained the conviction, it was less likely in this case wherein Kaura had from the beginning an arguable case of self-defence on account of his having admittedly suffered head injuries ; the main element in the prosecution case to be considered now is the statements of three eye-witnesses.
15. A dent has no doubt been made in the prosecution case by its failure to prove the alleged motive. It depends upon the circumstances of each case as to what should be its effect. In this case, the plea of self-defence is not flimsy one. On every step, prosecution felt difficulty in meeting it. As in every such case, in this case also the fact as to who had the motive to attack, would be a highly relevant fact. The prosecution alleged (I) PLD 1977 SC 557 a cause for attack a bizarre version of previous day's visit of Kaura appellant (both the appellants visited according to the version at the inquest stage) and threat to the deceased, but failed to prove it. It withheld evidence in this behalf of Bhoral and Mithal and also failed to produce the three important witnesses of the alleged follow-up, i,e,, beating to Mst. Asoodi and Mst. Siani. They and Anwar, important witnesses, have been withheld without explanation. All this would react on the prosecution in a general way.
There is no need to go into the technicality as to methods of use of motive, evidence in that behalf and/or absence thereof.
16. Kaura admittedly suffered two injuries on his head with lathi there was bleeding also. The first to come in contact with him was the deceased. He admittedly had a sota with him. This sofa, as admitted by Laik P. W. 10 was blood-stained. It was also admitted by this witness as also by Chauhar P. W. 6 that it was lying at the spot after the occurrence. Indeed it was the prosecution case in the F. I. R. As also upto suggestions to the defence witness that the deceased had a soti.
Despite that both the investigators (P. Ws. 4 and 9), when questioned in this behalf, stated that they did not find this sod at the spot : nor any soti was produced before them. This is not all. Chauhar complainant had also a sod which has allegedly used by him in causing injuries to Kaura appellant ; and there were two more sotis with Belawal and Laik P. Ws. (admitted by Laik P. W. 10). All these four sotis, one of which belonging to the deceased was blood-stained, were admittedly not produced before the police. It was highly relevant as to what was the shape of these sods and how much was the blood on the soti of the deceased. There is no explanation. Due benefit in this behalf cannot be denied to the accused. One highly reasonable hypothesis is that sod of the deceased was used in the occurrence. None else, other than the deceased, would have used it. As observed above, it must have happened before he himself suffered injuries. That being so, the prosecution must suffer the consequence in this behalf as well. If rulings in criminal matters were to be followed without regard to the circumstances of each case, in water tight composition, the prosecution having failed on two highly important questions involved in this case and discussed in the two preceding paragraphs, the case has failed on general issues ; and as held in Hakim Ali v. State (1) the accused should be given the benefit of doubt. But there is much more to it : "(1) All the eye-witnesses are closely related to the deceased. Chauhar P. W. Is his first cousin as also the brother of his first wife Mst. Asoodi, who allegedly was beaten by the accused shortly before the occurrence. She is also the saukan of the sister of the accused and after the death of Allah Diwaya, the common factor, there must be breakage of all ties. Belawal P. W. Is real brother of Chauhar and Laik P. W. Is their first cousin. Even otherwise, if some reliance could be placed on such witnesses on the basis of general suppositions, it would not be without serious risks to do so in the circumstances of this case even if the rules laid down in the cases of Niaz Shahab and Roshan were to be followed in routine manner. In the case of Niaz, it was observed that if there is anything, making it unsafe, the statements of such witnesses should not be accepted without corroboration, obviously, of a type different from the elements stated in that case. In the case of Shahab Din, their Lordships never meant that the statements of such witnesses should only be tested on the (1) 1971 SCMR 432 standard of what the accused allegedly did they are also to be judged qua their own conduct as to what they (the eye-witnesses) did, or did not do. In this case what was the conduct of the complainant side with four sotis remained a riddle, never solved on the basis of the prosecution version. The difficulties visualized in the case of Roshan (if the search for purely independent witnesses was. To be pursued to irrational limits, there would be complications) were solved, for the cases like the present one, in the same ruling when laying down the two tests; one, why has the witness offered to testify has he seen the occurrence? Two, if so, has the witness a motive to implicate a person who was not among the culprits, or to exaggerate the part played by any one of them? Even when these tests are satisfied, the Court has to watch the general conduct of. The witness in order to judge the quality of his evidence. In this case, all the three eye-witnesses were interested in exaggerating the role of the accused side because of the motive and defence plea factors, in the context of their connection with the deceased. They were not likely to tell the truth and dub him, their own kith, as an aggressor and wrong doer. In that exercise of justifying the conduct of the deceased, it was not unlikely that where they make other improvements and exaggerations, they also increase the number of culprits from one to two, thereby roping another brother of the enemy. This rationalization is not to be treated in isolation of other factors of weakness in the prosecution case.
(ii) All the eye-witnesses are chance witnesses. They were there near the place of occurrence by chance. The discrepancies on distances and directions as also unnatural conduct qua the occurrence show their failure to explain the chance presence.
(iii) Other more natural independent witnesses must have seen the occurrence but they have not been produced. Belawal P. W. 7 G admitted that house of Kalu Kosh is near (at one acre) from the spot. He did not deny the suggestion that Kalu saw the occurrence. Chauhar P. W. 6 admitted that Kalu came to the spot after the occurrence but that does not mean without seeing the occurrence.
Not only this, Kalu was also, as admitted by one investigator (P. W. 4), made to join the investigation. Wadera Gul Muhammad was also in the same position and Belawal P. W. Mentioned Sardar Muhammad and others in this behalf. Chauhar P. W. Admitted that some Punjabis lived at a nearer place than their own houses. None of the independent persons was examined, even as a wajtakar witness. They might have refused to support the prosecution version as put forward.
(iv) Mst. Asoodi, Mst. Siani and Anwar (who, it was admitted by Belawal, also saw the occurrence) were important witnesses of what happened immediately before the occurrence. They have not been examined. Belawal admitted before the committing Magistrate that Mst. Shahro D. W. Saw the occurrence. She, understandably, was not examined by the prosecution.
(v) The F. I. R. Was not recorded at the Police Station. The prosecution version, it appears, was perfected at the spot and then was put in the report. The distance of Police Station is seven miles. F.
I. R. Was shown recorded at 2 p.m. While occurrence is of 12 noon. This shows too much of promptitude. But in reality the position; it appears, is different. Chauhar admitted before the committing Magistrate that he rushed to the Police Station on a mare and brought the police to the spot at 1 p.m. He further admitted at the trial that his statement was recorded at the spot and that his thumb-impression was also obtained on a writing though he feigned ignorance about the contents of the writing. On the entire record, there is not a single document other than the F. I. R.
Which bears the thumb-impression of Chauhar. Even the inquest report was not thumb marked by him. Belawal also admitted Chauhar having recorded his statement at the spot and having thumb marked it. There is no reason not to draw correct conclusions. The A. S. I. Did not consider it safe for the official `prosecution' to adopt half-baked and immediate version of the case wherein plea of self-defence, it could be visualized then, might be raised confidently. This supposition gets support from the contents of the inquest report and the injury statement Exhs. P. D. & P. E. Respectively. Both were prepared at the spot ostensibly after the recording of F. I. R. Exh. P. E. Does not mention even the number of the F. I. R./case which, it is accepted practice, is put in the peshani of every such document, as is apparent from other documents on record. The facts portion of Exh. P. D. Contains erases and overwriting at three places in the first half but none in the second half. They relate to : one, name and particulars of Sona accused : two, the words "har do mulzaman bale and three, name of Chauhar when occurring for the first time. A possibility cannot be excluded that this part remained under completion for some time before reaching its second half there were significant changes. It is not without importance that the two parts of inquest report which normally is one big sheet folded at the middle, are now in two separate (torn in the middle) sheets. The usual contrivance seems to have been used. The first sheet of inquest report and the injury statement, without any reference to case, might have been sent with the dead body to the doctor (retaining second sheet of inquest report for the time being only and completing the formalities thereon soon thereafter). It is interesting to note that in the inquest report drawn by the same A. S. I. Who wrote the F. I. R., there are major discrepancies. Sona appellant is not mentioned in the one as having visited the deceased a day earlier to the occurrence ; while in the other, he is shown having accompanied Kaura. And there is no mention of Chauhar's soti and his role in the occurrence either.
(vi) The so-called eye-witnesses have no qualms of conscience when changing their solemn statements. They are infested with discrepancies, / improvements/denials and falsehoods. Laik P.
W. Had no difficulty in denying on oath before the committing Magistrate that the deceased was related to him, notwithstanding the admitted fact as disclosed by himself at the trial that he was his first cousin. Similarly Belawal and Chauhar when confronted with a difficult position of two witnesses of motive having refused to support the prosecution, without any hesitation offered to fill the gap by adding few more lines to their depositions. They are basically dishonest witnesses, not worthy of any reliance.
(vii) The conduct of the so-called eye-witnesses is not of normal human] beings Chauhar was told by Anwar that Mst. Asoodi and Mst. We're being beaten by two men, the accused. One of them is his real sister and the other, her mother-in-law as also his aunt. He did not show any interest- reaction, not that of even an animal. Rather he waited to become a witness after the deceased came, to do what he was also supposed to do. Similarly, Belawal and Laik, if they were at a place in-between the place of occurrence and the house of the deceased as shown in the site plan, did not show any interest in the earlier occurrence/affair as if they were dumb and blind. Their behaviour at the spot also is most unnatural. As admitted by one of them, they were four in number and fifth was the deceased. As discussed earlier, almost all had soils. Before their very eyes, the deceased their own blood relation was being done to death-excepting one Chauhar, none is even shown to have moved forward to defend or save him. Chauhar's so-called attempt to do so is also an attempt at false explanation of the injuries to Kaura accused which, in all probability, were caused by the deceased.
(viii)With regard to injuries on side of accused, Chauhar P. W. Stated in the F. I. R. That he, in order to apprehend the culprits, gave blows to both of them on head. As already noted, he is not attributed any such role in the detailed prosecution version contained in the inquest report prepared within a couple of hours. It can be safely presumed that till that stage these injuries could be explained on one hypothesis only i,e,, the deceased must have caused them. However, this is not all. Chauhar changed his position at the trial and stated that he caused one or two blows on the head of Kaura only. He also added this time that he did so when he himself was assaulted by the accused.
Belawal P. W. On the other band said that Chauhar gave blows to Kaura when the latter was injuring the deceased. Before the police his position was that Kaura was injured when he was running away after the occurrence. Belawal tried to resile from his statement before the Committing Magistrate that Kaura was bleeding from his head, but he was duly confronted with it.
There are other conflicting statements also. It is enough to observe here that it is all due to an attempt at false explanation of Kaura's bleeding, head wounds ; and that is why Chauhar was unable to deny the suggestion that the deceased gave blows to Kaura.
(ix) On a point like place of occurrence, the eye-witnesses have not agreed that it was 4/5 acres away from the Basti of the deceased. If Bela wal is believed it must be within one acre of the Basti of the deceased because, as he said, it was one acre frinn his field which he was ploughing and it is within 1/2 acres of the house of the deceased. Site plan of Patwari gives a different picture, which is totally belied by Laik P. W. Who described the place as 'vacant site close to jungle having small shrubs'. ' It is not that no one place existed where it actually took place, but it is so because of the fact that the prosecution witnesses had not seen the occurrence and they had no respect for truth.
(x) Although the medical evidence gets explained but looking at the prosecution case for its acceptance or otherwise on general issues, it cannot be ignored, that the doctor mentioned three weapons : one kulhari two, blunt weapon (sot!) ; and three, kassi for the (2/3 of a circle) lunar shape injury."
17. If all the above noted circumstances are taken into account and due benefit thereof is given to the accused (because out of conflicting explanations and possibilities, those doing against the accused cannot be adopted in the safe administration of criminal justice), then the accused must be extended the benefit of doubt and the result will be acquittal.
18. However, in the circumstances of the case, the defence version of self-defence also satisfies the test laid down in Safdar All's case provided it is considered in juxtaposition of what has been discussed above, as the prosecution case, and not in two separate watertight compartments.
19. The presence of Mst. Shahro D. W. 1 at the spot, as noted earlier, was admitted by one prosecution witness. In view of this circumstance, much importance cannot be given to the distance she gave (between the spot and the house). Moreover, as demonstrated above, the prosecution evidence on question of distance and direction is no better. It also becomes insignificant as to why she and the party walked so much distance to see off Kaura. If motive alleged by the prosecution is rejected, there is no impediment at all in accepting what Mst. Shahro gave as motive and it also gets explained by what happened in Kaura's house on the same day involving the killing of Mst. Lalan on account of question of honour. In any case, it is not impossible that the three of them might have continued the discussion while walking ignoring the distance they had covered.
20. We are also unable to agree with the criticism from the prosecution side, that the deceased would not have gone without a shirt "(i) for such a distance ; and
(ii) to see off his brother-in-law."
' It was sweltering noon of high summer days in Bahawalpur region. No wonder many cultivators do not wear the shirt throughout the day, though some carry it along on shoulders or otherwise.
Nothing is in record to contradict this reasonable possibility and this circumstance, thus, cannot be used against the accused. We are also unable to adopt the prosecution suggestion that the kulhari used by Kaura was big one with 9" blade. No doubt kulhari (P. 2) said to have been recovered from him had 9" blade ; but it is not possible to re-introduce this factor indirectly, against the accused after the rejection of the recovery of this kulhari as weapon used in this case. Otherwise too, it is not certain whether such a kulhari was used at all. If it were, so, out of remaining six incised wounds, at least one or two would have been of same length. Moreover, a wound on the fleshy parts of chest like injury No, 5, if caused by 9" blade after due contraction of the skin and flesh, would be slightly less and not more than V. It is important to note that liver and lung were not injured under this injury in other words it was not deep enough to reach those organs which are almost adjacent to ribs. If the full length of the blade of the kulhari would have gone in the body to cause a long injury, its curve about 3" in depth would have gone into the wound cutting both the organs. The probable reason why it was not so is that a blow with ordinary kulhari on the left clavicle on a standing person when going downward and outward would have reached the end by slashing the chest downward with a shallow last portion. The details of the injury fit in with this possibility. This supposition also gets support from the fact that the doctor noted another 'spindle shape' shorter injury on the body of the deceased. It confirms the exclusive style of the assailant which produces peculiar wound, deep on one side and shallow on the ending portion. Therefore, no advantage can be given to the prosecution in this behalf. The number of injuries on the deceased is also not such as to impel the Court to hold that the assailants were two. If blunt weapon abrasion and contusion as also other smaller injuries are counted as in any skirmish, there are three major injuries left to be counted against the head, bleeding wounds of Kaura. If complainant's explanation is excluded and it is held that the deceased gave blows to Kaura, it is not known an to what was the number and nature of blows ; that is, probably, why the police did not get him medically examined.
21. True, the record shows that the defence suggestion to the complainant was that Kaura visited the deceased one day earlier to the occurrence. But the learned counsel made a confident explanation that he had suggested one weak and that there was a typing mistake which was brought to the notice of the learned trial Judge, only, after receipt/reading of the copy and further that the learned Judge had assured him that he need not bother on that account. It seems, for the same reason the learned Judge did not use it against the accused. On our asking, learned counsel explained that he has served at the bar for more than a decade. There is no reason to doubt his statement. Indeed, there is nothing to contradict it. Otherwise, such a suggestion cannot be allowed to negate the defence specifically pleaded by the accused himself and deposed to by his witness. When they say one week counsel's suggestion of one day would not weaken the defence, Counsel has no such preference over his client's position. In any case, the prosecution version of motive including the part that Kaura had visited the deceased a day earlier having been rejected in toto, it would not be fair to re-introduce the same, in the above explained circumstances, on account of a disputed, retracted and explained, suggestion by the defence counsel.
22. The defence version of motive is more plausible. It gets support from the murder of Mst. Lalan the same day. In this context; the rejection of the prosecution version cannot be ignored. That being so, the circumstances as explained by Mst. Shahro D. W. Were such that the deceased was most likely to use his soti against Kaura. The prosecution evidence itself supports this supposition. If the deceased could carry a soti no sinister design can be attributed to Kaura if he carried an ordinary kulhari simply because he had no kulhari on the earlier visit he might then have carried something else. This last question was not asked from the defence witness. In this background and situation, when the actual number of injuries and their nature and location on the accused is not known, it would not be safe to imagine that he might have exceeded the right of private defence.
The weight and type of-the soti of the deceased having been concealed from the Court by its non- production, it is not possible to hold that the extent of danger then visible was not such as to give right of private defence to Kaura. Nor it is possible in this case to hold that when the fight was on, he was able to weigh his defensive moves in golden scales as the oscillation must have been swift and sudden. There is no medical evidence to show that the deceased was incapacitated after a particular injury or that any such injury was inflicted at a particular stage.
23. After careful consideration of the case, it is held that: one, the prosecution has failed to establish its case on general issues beyond reasonable doubt; and two, the defence version when put in juxtaposition to prosecution case seems reasonably possible. That being so, the appeal is allowed.
The convictions are set aside and the accused are acquitted. The sentences of death, accordingly, are not confirmed.