1. MUHAMMAD HALEEM, J.---This judgment disposes of Criminal Appeal No. 27 of 1977 and Jail Petition No. 49 of 1973.
2. The appellants, Shera and Anara, sons of Dari, and Anara son of Jahana were tried along-with Jahans son of Khawaja, Dari son of Muradi and Rasula son of Muradi for the murder of Salehon at Degawela on 29th March 1968, in a lane in front of the house of Lala in village Daftar, District Gujrat, and by judgment dated 29th July 1970, the learned Additional Sessions Judge, Gujrat convicted the appellants under section 302 read with section 34, P. P. C and sentenced Anara Bon of Jahana and Shera to death and Anara son of Dari to transportation for life. The other three were acquitted, which conclusion was challenged by the complainant, Muhammad Akram, in Criminal Revision No. 237 of 971. This revision was heard along-with the murder reference rind the appeal filed by the appellants and by a common judgment dated 22nd May 1973, a Division Bench of the Lahore High Court confirmed the convictions of the appellants and the sentences imposed there --for and remanded the case of Jahans, Rasula and Dari for retrial to the trial Court.
3. Leave to appeal was refused to Jahana Rasula and Dari but it was granted to the appellants as it was considered necessary to re-appraise the evidence for tits reason that "the High Court attached higher probative value to the ocular evidence than was dune by the learned trial Judge."
4. According to the complainant as he seas proceeding from his house towards his Dera, he saw from near the hose of Shahabul, Salehon coming from the side of the Dera towards his house with a pitcher on his head and Akbar 15 to 20 karams behind him. He then noticed Shera and Anara, sons of Dari. Anara son of Jaharna, Rasula and Dari sons of Muradi and Jahana son of Khawaja armed wish spear, emerging from the building of the Primary School, raising Lalkera and running towards Salehon and from amongst them Shera son of Dan gave the first spear blow which struck him on the right side of his chest followed by Anara son of Jahana who caused another sear blow on the left side of his chest. Salehon fell to the ground thereafter" Rasula inflicted a appear blow on his abdomen. Dari son of Muradi, Jahana son of Khawaja, Anara son of Dari inflicted spear blows on him as he lay on the ground. Salehon succumbed to his injuries. The complainant, Akbar and Muhammad, who was in the lane near the gate of the school, raised cries upon which the appellants and the others decamped from there proclaiming that they had avenged the murder of Dari. The motive imputed was that 10 to 12 years before the present incident Salehon and his other relatives, Ghulam, Nawab and Sardara, were tried for the murder of Dari but they were acquitted.
5. The complainant further stated that try avenge that grievance some five years before the present occurrence another incident occurred in which Shera and others had tied and beaten him in his Kotha at night about which he got a case registered. Subsequently they compromised and the case ended in acquittal.
6. The F. I. R. Was lodged by the complainant at P. S. Malikwal at 10-30 aim. The ram: day. Front the spot broken pieces of pitcher and blood-stained earth was secured. Anara son of Jahana and Anara son of Dari appeared before the investigating officer on 1st April 1968, and produced their blood stained spears which were taken into possession in the presence of Lala (P. W. 7) and Fateh Muhammad (P. W. 8) and on an examination by the Serologist the were found to be stair-d with human blood. The deceased suffered as many as twenty wounds which were stated by the doctor to have been caused b one type of sharp-edged weapon.
7. The appellants denied their involvement in the crime and pleaded that they were implicated due to enmity over the acquisition of ownership rights of 70 acres of land which was previously in the possession of the prosecution witnesses as occupancy tenants. In regard to the motive alleged against them it was pleaded that Dari was murdered by his tenants but by mistake the name of the de eased was mentioned as one of the culprits. They also denies that they had patched up with Akram and alleged that they were acquitted in the case because they were found innocent.
8. At the trial the prosecution relied on the ocular testimony of Muhammad Akram (P. W. 9), Muhammad Akbar (P. W. 10) and Muhammad (P. W. 11) and the recovery of the weapons. In assessing the guilt the trial Court held that the testimony required corroboration which was available in the case of the two Anaras as they had produced the, blood-stained spears and as for Shera, there was consistent evidence that it way he who caused the first spear blow on the deceased Which found support from the medical evidence as he had the prime motive along-with his brother to avenge the murder of his father. Accordingly the trial Court convicted them as aforementioned. In regard to Jahana, Rasula and Dari, no such corroboration was available and therefore they were acquitted.
9. The High Court held the testimony of Muhammad as being that of a disinterested witness and the credibility of the ocular testimony as unexcep--tionable. The High Court further found the ocular testimony to be corroborated by the motive, the medical evidence, the broken pieces of the pitcher found at the spot and lastly the participation of the appellants and the others being consistent with the number of injuries suffered by the deceased. On this view of the matter the High Court ordered retrial of Jahana, Rasula and Dari and upheld the convictions of the appellants.
10. Before I advert to the submissions, it will be of advantage to indicate here the relation: hip of the appellants and their accomplices inter se and so also the relationship of the P. Ws. With the deceased. As earlier stated Shera and Jahana are the sons of Dari who was murdered. Deceased Dari was the maternal uncle of Anara son of Jahana. Khawaja, the father of Jahana. And Muradi are brothers whose eons pro Dari and Rasula.
11. The prosecution witnesses, Muhammad Akram and Muhammad Akbar, are closely related to the deceased who was the paternal uncle of Muhammad Akram and husband of the sister of Muhammad Akbar's father. The deceased's sister was harried to Ghulam, an uncle of Muhammad Akbar. Muhammad was not related to the deceased. It appears in the evidence that Muhammad's cousin's (Mst. Dari) husband Muhammad Akbar is a brother of Sardara who is married to the niece of Shara whose daughter-in-law, Mst. Rabia was abducted by Anwar, brother of Dari and Rasula and therefore it-was alleged that ha was inimical towards them. Similarly it also transpires that Jahana, an accomplice of the appellants, figured as a witness in the murder case of Mamara against the distant relatives of Muhammad and therefore he was said to be inimical towards him and his son Anara.
12. The learned counsel for the appellants contended that the presence of the eye-witnesses as doubtful was trey had failed to give a plausible reason for their presence in the village stress at the stated time. The same contention was raised before the trial Court and was repelled. Muhammad Akram has stated that he was proceeding to his Dera from his house which was two acres from the spot when he witnessed the incident. In cross-examination the purpose of his visit to the Dera was probed into and he stated :-- "I was going to the Dera for protection of my cattle. During day time our servants looked after the cattle. During night I protected the cattle. We are six brothers. Muhammad Aslam present in Court is my elder brother. It is incorrect that my elder brother Muhammad Aalam protected the cattle to those days my father was admitted to a hospital in Lyallpur. Muhammad Aslam had gone there:"
13. Apparently there is nothing unusual in the explanation as it is a common practice that the villagers, do keep an eye on their cattle against cattle lifting which is of common occurrence in the villages or to prevent them from wandering away. It is not suggested that he had no cattle and therefore I do not see any reason to doubt his explanation. Similarly Muhammad Akbar had stated that he was returning from his Dera which was 1 1/2 squares from the spot towards his house when ho saw the incident. No question was suggested to him as to what he was doing at the Dera at that time and the reason which prompted him to leave the Dera for his house. In its absence the argument as to his presence being improbable becomes speculative for there is no material to doubt its correctness. Muhammad has stated that he was proceeding to contact Hayat Faqir as he was required to serve the guests at the marriage ceremony of Mat. Rasula, the daughter of Qasim.
14. However, on the basis of his admission that Nikah was performed at noon and Rukhasti bad taken place before the occurrence, it was contended that there was no reason for him to contact Hayat Faqir as nothing was left to be done and therefore his presence could not be regarded as plausible.
15. It is not possible to conclude from this statement that nothing else was needed to be done after Mst. Rasula had left the house. There would be still some guests to be fed and many odd jobs to toe done. Accordingly there is nothing unusual if Muhammad was deputed to procure a helping hand.
16. At least I am unable to comprehend that a rustic villager like Muhammad would coin a reason it there was no truth in it. The trial Court while dealing with this contention has held that the incident occurred in broad day light and the presence of Muhammad Akram and Muhammad Akbar cannot be regarded as unnatural. As for Muhammad, the trial Court held that even if Rukhsati had taken place it did not mean that nothing was left to be done and if Muhammad had been sent to fetch Hayat Faqir there was nothing exceptional to doubt his presence. The learned Judges in the High Court also accepted the explanations furnished by these witnesses for their presence in the village streets at the time of the occurrence and held them to ham witnessed the incident. On this aspect of the case the Courts below have given a consistent finding which I am inclined to accept in the absence of any substantial reason to disagree with it.
17. The learned counsel next contended that the learned Judges of the High Court have erred in placing reliance on the medical evidence, motive and broken pieces of the pitcher as lending support to the ocular testimony in so far as it tended to confirm the identity of the assailants. It cannot be denied that the appellants and their accomplices who were related inter se were actuated to avenge the murder of the father of Shera and Anara and for the reason motive has a bearing qua the participation of the appellants and the others. It is from this angle that motive assumes significance.
18. The next feature is the number of injuries found on the deceased which is consistent with the participation of the number of the assailants charged with the crime and therefore the possibility of any exaggeration is reduced to a minimal. Consequently I see no error in the finding of the High Court on this aspect of the case. As for Muhammad he was regarded as a disinterested witness by the High Court. Exception was taken to it at the hearing and it was contended that he was wrongly described as such, for, he was inimically disposed towards Dati and Rasula as their brother Anwar had abducted Mst. Rabia, the daughter-in-law of his relative Shera. Similarly he was also inimically disposed towards Jahana and his son Anara for the former bad figured as a prosecution witness in the murder case of Mamara against his relatives.
19. I have no hesitation in holding that not only is his relationship indirect but it is also far fetched to assume that he would have had any grudge against them. In a village community, such indirect relationship is not uncommon and if that is to be made a ground for urging interestedness or animosity then something substantial should have been brought on record to challenge his impartiality. In its absence nothing turns on it. Therefore, it cannot be said that the High Court went wrong in saying so in the facts and circumstances of the present case.
20. About the credibility of the recovery witnesses, We High Court held that it was unlikely that the two Anaras would have retained the weapons for four days without washing the blood-stains and much less to have voluntarily produced them. These witnesses were related to the deceased and there for their evidence was not free from doubt. Having examined the reasons give by the High Court. I am inclined to agree with this finding. Nevertheless the ocular testimony is of a quality which brings home the guilt to the appellants.
21. It was contended that the deceased had taken a second wife ham Bashiran who was betrothed to Akbar son of Moonda who would have had a reason to kill him. However, there is no material to substantiate it nor e is there any reason for us to hold that the deceased was killed by his tenants as was suggested to Muhammad in his cross-examination. It is also fallacious to plead that Dari wags killed by his tenants arid deceased Salehon was wrongly implicated. This defence was taken to minimise 'the effect of motive alleged against them which however wag duly Proved and was rightly relied by the Courts below, Concluding therefore, it was established that' it was a witnessed crime and the ocular testimony was of a quality to inspire confidence which found support from the motive and the medical evidence as the number of injuries on the deceased assured the participation of the appellants.
22. The learned Assistant Advocate-General contended that the rule of corroboration ova; net an inflexible rule and in support of his contention he relied on some reported cases of this Court which it is not necessary to consider as on the evidence, as it stands, the degree of corroboration required is met by the other circumstances consistent with the principle stated therein.
23. Accordingly I would maintain the judgment of the High Court and dismiss the appeal as well as the Jail Petition.
24. ANWARUL HAQ, C. J-I agree.
25. QAISER KHAN, J.-After going through the judgment proposed by my learned brother Muhammad Haleem, J. To be delivered in this case, it is with respect that I have to state that I do not find myself in agreement with it. I, therefore, proceed to record my own judgment. The facts of the case need not be reiterated as these have already been given by my learned brother in detail in his proposed judgment I straight away proceed with the discussion of the prosecution evidence.
26. The prosecution evidence consists of the following pieces;
(1) The ocular testimony of Muhammad Akram P. W. 9, Muhammad Akbar P. W. 10 and Muhammad P. W. 11.
(2) Bloodstained spears produced by Anara son of Jehana and Anara son of Dori accused on the 1st of April 1968.
(3) Medical evidence.
(4) Motive for the offence.
27. Before dealing with the ocular evidence I would like to deal with the corroboratory pieces of evidence first. So far as the production of the bloodstained spears by the two Anaras is concerned the evidence regarding this has been disbelieved by the High Court and rightly too on very good grounds. The prosecution evidence is that these two accused themselves produced the two blood- stained spears. Now this a nothing but doing violence to common sense to hold that the two accused who were charged for murder kept the blood-stained spears in their house: and then produced them to the police themselves blood-stained on the fourth day of the occurrence.
28. Besides in the whole village the police found only Lala P W. 7 and Fateh Muhammad P. W. 8 the most interested persons to witness the recovery. The deceased was the son of the real aunt of Lala P. W. And the daughter of his uncle Khuda Bakhsh Mst. Bashiran was the wife of the deceased.
29. Similarly the wife of Fateh Muhammad P. W. And the wife of the brother of the deceased were real sisters. Both of them were very much interested and besides there are many serious discrepancies in their statements which need not be referred to. Their statements with respect to the recoveries could have no evidentiary value whatsoever. The statement of the investigating officer could not, therefore, be of any importance as it appears that he intentionally avoided making independent persona as witnesses.
30. Now coming to the medical evidence there la no doubt that the doctor found twenty punctured and stab wounds on the person of the deceased but then how does this show that these injuries could be caused by eight persona and neither more nor less or that these were caused by the accused. This would at the utmost show that the culprits were more then one, for in the case of a serious type of enmity even 2/3 persona may cause a large number of injuries to their victim. At the same time the injuries could also by caused by ten persons or more each giving a blow or two. The medical evidence, therefore, does not show that the injuries to the deceased were caused by eight persons which included the accused. It could at the utmost show that these were caused by more than one person. The medical evidence is no corroboration of the statements of the ocular witnesses is the sense that since that had alleged to have seen the deceased being stabbed with spears and spear injuries were found on the deceased by the doctor their statements stood corroborated. The P. Ws. Were alleged to have been present on the spot but whether that is correct or not it is no body's case that they did not come to tie spot even after the occurrence. Now if they had come to the spot after the occurrence they could naturally have seen the injuries on the person of the deceased before the lodging of the report. They had therefore to give the nature of the injuries which they had seen on the dead body and the finding of those type of injuries on the person of the deceased by the doctor would not corroborate the factum of their presence on the spot at the time of the occurrence. The medical evidence in this case is, therefore, no corroboration of the statements of the ocular witnesses.
31. Now coming to the motive for the offence it its admitted by both the parties that there was serious enmity between them. The father of Shera and Anara accused, namely, hart had been murdered in 1951 for which the-- deceased, his brother Shahu and their cousins Ghulam, Nawab and Sardara were charged. Muhammad Akram P. W. Had also charged Suera and others for trying to abduct him some five years before the occurrence and Shera accused had allegedly injured Muhammad Nazir a first cousin of Muhammad Akram P. W. The case regarding the abduction of Muhammad Akram by same of tire accused appears to be a. Cock and a bull story, for if they. The accused, wanted to avenge the murder of their father they would straightaway have stabbed him during the night and would not have tried to take him away by allowing him to make noise and be released.
32. For the stabbing of Muhammad Nazir cousin of P. W. Muhammad Akram there is no evidence worth the name on file because it was not mentioned even in the first information report. Now apparently the murder of 1951 could not be the motive for the accused to commit the murder of the deceased in 1968 in the manner in which they' are alleged to have committed it. It appears to be the result of some other recent motive for which there is a suggestion by the defence and which finds support even from the evidence. Salehoon deceased was about 50 years of age and Mst. Bashiran the daughter of his maternal uncle Khuda Bakhsh was his second wife who was more than 15 years younger to him and whom he married only five months before the occurrence. According to the defence it was suggested to Lala P. W. 7 though he denied it that Mst. Bashiran was betrothed to Akbar son of Monda a maternal uncle of Mat. Bashiran. Lala P. W. 7 has, however, admitted that the deceased was killed in the street in front of the hou4e of Monda and since the occurrence which I shall, presently be showing took Place after sunset and not at Deegar time as alleged, the possibility of the deceased having been attacked by Akbar and his brothers Ali and Umra could not be excluded. a that an it may, if the accuses bad a motive for attacking the deceased that relations of the deceased had equally a motive for falsely charging the accused on suspicion or at least roping in as many innocent people as they could. The motive in this case would not, therefore, further the prosecution case in any way so far as identity of the accuse was concerned.
33. We are therefore, left with the ocular evidence only which consists of the statement of Muhammad Akram P. W. 9, Muhammad Akbar P. W. 1 and Muhammad P. W.
11. Now there is no dispute that two of the three witnesses, namely, Muhammad Akram and Muhammad Akbar are very much interested and could not be relied upon without independent corrobora--tion. Muhammad Akram is the nephew of the deceased. Muhammad Akbar P. W is the cousin of the deceased and his aunt was the first wife of the deceased. The sister of the deceased was the wife of the uncle of this P. W.
34. Akbar. The Courts below have attached much value to the statement of Muhammad P. W. 11 describing him as an independent person, but I am of the opinion that the two cannot be termed as independent. Mst. Behari his first cousin is married to Akbar son of Rahman While the sister of Monda who is maternal uncle of Mst. Bashiran wife of the deaced is married to Sardara brother of the aforesaid Akbar. Besides the wife of Modi first cousin of Monda maternal uncle of Mst. Bashiran had been abducted by Anwar brother of Rasula and Dari accused. The statement of Fatah Muhammad P. W 8 coupled with the statement of the Jehana accused at the trial further shows that the father of Muhammad P. W. Was an accused for the murder of one Momar in which case jehana accused was a prose--cution witness. There is no doubt that these relationships and enmities are somewhat distant but then in villages such relationships and enmities do count and people do come forward on that account at least to give evidence in cases. Muhammad P. W.
35. Could not. Therefore, be strictly termed as independent witness but on the other band an interested person. At any rate after going through the statement of Muhammad very carefully I harm come to the conclusion that be had no business to be on the spot at the time of the occurrence and that ho could easily be termed' as chance witness. His house is situated at a distance of a furlong from the soot on the opposite aide and the reason given by him for going to the spot is so flimsy that no reliance whatever could be placed on it. According to him on the day of occurrence the marriage of his cousin Mst. Rasulan took place. Meals were served at 12 noon and the Rukhsati took place in the afternoon. !t was thereafter that he alleges to have gone to the house of Hayat Faqir for informing him for rendering service in connection with the marriage of Met.
36. Rasulan. Now- this reason on his for going towards the spot does not require much argument to discard it as false and fabricated. The marriage had already been finished and there was no reason for him to summon any body to serve in the marriage.
37. There is no corroboration whatsoever of the statement of all the three P Ws. On file but on the other hand there are circumstances which belie their statements and their statements cannot stand the test of close scrutiny. All the three P. Ws. Have stated that the accused had taken shelter in the school compound and that they came out of it for attacking the deceased According to the site plan prepared at their instance the compound wall of the school towards the south was 4 -- feet high and much higher towards the west near the gate. The deceased was allegedly stabbed on point No. 1 of the site plan according to the P. Ws. Now if the deceased was stabbed at point No. 1 then it means that he was seen by the accused at a sufficient distance from point No. 1 towards the east, as the accused covered a distance of about 150 feet to meet him at point No. 1 which clearly belies the statements of the P. Ws. As no point beyond No. 1 towards the east could be seen from the school on account of the intervening houses. Besides it is the prosecution evidence that the accused came out of the school compound challenging the deceased. Now if the accused had challenged the deceased from the gate of the school when the deceased was at point No. 1 or further away from it towards the east, then it was not possible for the accused to have stabbed the deceased at point No.1 as the deceased must naturally have run away towards the east for saving himself. The statements of the P. Ws. Suggest as if the deceased was a clay duck placed at point No. 1 to be shot raised from any place. If an unarm man had to be killed then what was tire need of eight persons joining together to kill him. He could easily be killed by 2/3 persons at that almost.
38. Furthermore it is highly improbable that Jehana or his son Anera or their cousins Rasula and Dari could have joined Shera and hare sons of Dari as they bad no close relationship with the two. Even if it be assumed that eight persons including a young boy namely Anara son of Dari lined together to kill the deceased then why did they select the village where people could be present to see the occurrence,he deceased had allegedly gone to his Dera and he could easily be backed outside the village on the way where no body could be present. It is very strange that despite the fact that the place of occurrence is surrounded by buses only three persons closely connected with the deceased happened to be present on the pot. It is also not understood as to haw and why did the accused when trey were eight in number spare Muhammad Akram and Muhammad Akbar P. Ws.
39. When they were equally on inimical terms with them. They were close relations of Salehoon the deceased. Some of the attackers could easily have dealt with them as well. The fact that they were not touched clearly suggests that they were not present there.
40. There is yet another aspect of the cane which also has a great bearing on the case. The occurrence according to the prosecution took place at Deegar time, that is to say 4 p.m., best report in the police station ten miles away was lodged at 10-30 p.m. It is a pity that the reporter Muhammad Akram was nit cross-examined on this point, but it can safely be assumed that he did go to the police station either in a tonga or bus or at least on a mare because it was not possible for him to have traveled for 10 miles on foot and then at night. The statement of Yousuf S. I. P. W. 13 shows that Barmusa was at a short distance from the spot where buses and trucks could be found.
41. But even if we assume that bit Muhammad Akram went to the police station on foot then the ten miles should not have been covered by him in 6 -- hours. The statement of Mian Khan F. C. P. W. 3 shows that he and others reached the sec at 3 a.m. On foot. Now if he and his companions could cover the distance on foot in 4 hours for they must have started from the police station at 11 p.m.
42. There is no reason why Muhammad Akram did not reach the police station in 4 hours to report at 8 p.m. This' clearly suggests that either the occurrence was reported after prolonged consultations and deliberations or it had taken place after sunset in dark. In each case the P. Ws. Are belied.
43. Ghulam P. W. 4 is a collateral of the deceased and identified the dead body. He lives in the same village an according to him be learnt of the occurrence at mid night and when cam to the spot saw the three P. Ws. Still present there. Lala P. W. 7another close relation of the deceased who also invest in the same village has stated that he came to know of the murder at Sotewela. Now it; the occurrence had taken place at Deegar lime as alleged by the P. Ws. Then it was not possible that the relations of the deceased living in the same village would not have come to know of it almost at the same time. It is therefore quite clear that the recurrence did not take place at Deegar time as alleged the P. Ws. Since all the three P. Ws. Were interested and appear to b chance witnesses and since there was no corroboration whatsoever of their statement on file, I am, therefore, of the opinion that the charge has nail been brought home to the accused or any one of them beyond a reasonable doubt.
44. I, therefore, giving the appellant the benefit of doubt, accept their appeal, set aside heir convictions and sentences and acquit them.
45. ORDER OF THE COURT In accordance with the view of majority, both the appeal as well as the Jail petition are hereby dismissed.