RIAZ AHMAD Alias RAJOO AND Another vs THE STATE

1. MUHAMMAD AFZAL ZULLAH, J.----Riaz alias Raju, aged 33, Mushtaq, aged 38, Mumtaz alias Mehr, aged 30 and Altaf Ahmad alias Gonga, aged 27, sons of Itam Din, residents, of Haveli Mian Khan, stood trial for offences under sections 302/34, 201/34 and 392/34, P. P. C., in connection with the murder of Fateh Muhammad, aged 45, at a place known as 9-A Shah Alam Market in Lahore City, on 30 November 1967, at 7-45 p.m. By his judgment, dated 25th March 1969, the learned Additional Sessions Judge, Lahore acquitted Mumtaz and Altaf. He convicted and sentenced Riaz and Mushtaq as follows:- Under section 302/34, P. P. C. Death to each; Under section 201/34, P. P. C. Five years' R. I.; Under section 392134, P. P. C. Five years' R. I. To each.

2. The sentences of imprisonment were ordered to run con--secutively; of course, in case the sentence of death was not confirmed. The convicts have appealed. The State has filed an appeal against acquittal of Mumtaz and Altaf which was admitted to hearing on 24th September 1969.

3. Zulfiqar A.I, son of the deceased, has also filed a revision petition against the acquittal of the aforesaid Mumtaz and Altaf which was ordered to be heard along with the State appeal. The reference under section 374, Cr. P. C. For the confirmation of death sentences is also before us. All these matters are being disposed of by this judgment.

2. Briefly stated, the facts of the case, as disclosed in the statement of an eye-witness Muhammad Ehsan alias Bhola who is also the first informant, are as follows:-- The deceased was the maternal uncle of Ehsan. About six or seven years before the occurrence, the deceased sold his house in Haveli Mian Khan to Muhammad Yaqub and Muhammad Akram (P.th Ws. 12 and 13 respectively). The four accused persons also were interested in the purchase of that house. Therefore, they felt annoyed on the aforesaid sale and for this reason Riaz and Mushtaq appellants used to abuse the deceased. On 30th November 1967, at about 11-30 a.m, the deceased, Dr. Yaqub (P. W. 16), Sh. Lqbal (P. W. 14) and Ehsan P. W. Went to see the wall of the house of Ghulam Rasool, a cousin of the deceased, in Haveli Mian Khan. It is mentioned in the F. I. R. That there was some dispute about this wall and these persons had gone to settle that dispute.

4. When the party was returning from Haveli Mian Khan, Riaz appellant, who was standing near his shop at the Rate of the said Haveli, started abusing the deceased. The deceased also abused Riaz appellant. Dr. Yaqub, Sh. Iqbal and Ehsan intervened and avoided the bad situation. Riaz appellant, however, at that time remarked that he will teach a lesson to the deceased. On the same day at about 7-30 p.m., the deceased was sitting on a chair in the Verandah of building known as 9-A Shah Alam Market, near the tea-stall of Naqi (P. W. 22), when one Salah-ud-Din, the uncle of the accused, came and had some talk with the deceased which was not listened to by Ehsan. Salah- ud-Din went away. After about 5/10 minutes; all the four accused came there. Riaz and Mushtaq appellants were armed with pistols while Altaf and Mumtaz were armed with knives. Riaz appellant opened the attack by firing a pistol shot at the deceased which was followed by another pistol shot by Mushtaq appellant. On having been hit by the first shot, the deceased fell down whereupon Riaz and Mushtaq appellants fired three or four more slots at him. Fateh Muhammad expired at the spot. At about the same time, a tonga driven by Ghulam Muhammad (F. W. 23) came from the side of Shah Alam Gate. Mumtaz accused pushed Ghulam Muhammad out of the Tonga. Riaz and Mushtaq appellants and Altaf accused put the dead body in the Tonga and all four of them drove away the Tonga towards Rang Mahal. Some shots were fired from the Tonga when it was being taken away from the spot. Ehsan, one Saleem (not produced), Naqi P. W. And Ghulam Muhammad aforesaid witnessed the occurrence. Shortly after the accused persons had decamped with the dead body of the deceased, Muhammad Shafi and Muhammad Hafiz (P. Ws. 28 and 29 respectively) reached the place of occurrence. They told Ehsan that they had seen all the four accused persons taking away the dead body of the deceased in a Tonga. Shaft had seen them near Chowk Rang Mahal while Hafiz had seen them near Sua Bazar.

5. Ehsan proceeded to Police Station Lohari Gate, which is at a distance of three furlongs from the place of occurrence and lodged the F.

1. R. (Exh, PO) at 8-15 p.m. Which was recorded by Muhammad Ashraf Khan, S. I. (P. W. 30). The F. I. R. Discloses substantially the same facts as narrated above. It is also mentioned therein that the accused persons having murdered the deceased "have taken away the dead body in a Tonga for concealing it somewhere". The description of the clothes which the deceased was wearing and which were on the dead body, when it was taken away, was also given in the F. I. R., presumably for guidance of the police to find out the dead body.

6. Ehsan appeared before the committing Magistrate and made a statement as P. W. 10 on 13th and 31st July 1968. He was murdered thereafter and, therefore, could not appear at the trial. The learned trial Judge transferred his statement under section 33 of Evidence Act, by his order, dated 20th February 1969. That statement has been read as evidence and the number given to Ehsan, in the list of P. Ws. Is P. W.

33. The above facts have been taken from the said statement.

3. Muhammad Ashraf Khan, the Investigating Officer (P. W. 30), after recording the F. I. R, came to the spot. He took the blood-stained stones, gravel, etc., by breaking the floor of the Verandah at the spot, vide memo. (Exh. PE). A spent bullet (Exh. P5), which was blood-stained, was taken into possession, vide memo. (Exh. PF). Two empties of .32 bore (Exh. P6/1-2) were also taken into possession from the spot, vide memo. (Exh. PG). A live cartridge of .32 bore (Exh. P7) was taken into possession, vide memo. (Exh. PH). A brown pair of makeshan shoes (Exh. P8/1-2) belonging to the deceased, which was but at the spot when the dead body was taken into possession, vide memo.

7. (Exh. PJ). On the same night, Tonga No. 2091, which was snatched from Ghulam Muhammad P. W.

8. And was used in taking away the dead body, was found parked in the bus stand at Badami Bagh.

9. The Tonga along with the mare was taken into possession, vide memo. (Exh. PM). Some hair, which were blood-stained, were clipped from the body of the mare and taken into possession, vide memo. (Exh. PK). A metallic piece (Exh. P9) inside the Tonga, which was blood--stained, was also removed and taken into possession, vide memo. (Exh. PL). A search was made for the accused persons during the night but they were not available.

10. On the next day, i.e. 1st December 1967, Riaz appellant and Mumtaz accused surrendered before the Ilaqa Magistrate and requested for an identification parade, vide application (Exh. PV). They were sent to the judicial lock-up by the said Magistrate, for the purpose of identification. On 2nd December 1967, Ehsan, Hafiz, Naqi, Ghulam Muhammad, Shafi P. Ws. And Saleem were taken by the Investigating Officer to jail for participation in the identification parade which was to be held by the Duty Magistrate. Riaz appellant and Mumtaz accused, however, declined the identification parade.

11. The record of proceedings, in this behalf, conducted by the Duty Magistrate in the jail on 2 December 1967, is Exh. P. W. 15/B.

12. After their refusal in respect of identification parade, the police took Riaz appellant and Mumtaz accused in custody on the same day, i.e. 2nd December 1967. On their request, they were got medically examined, vide medico-legal reports (Exhs. P. W. 30/A and P. W. 30/B). The reports do not reveal anything significant. On interrogation, Riaz appellant offered to lead the police to the place where the dead body was lying and took the police to a place near Furrakhabad village on the bank of River-Ravi; and from a ditch which was full of water, he got recovered the dead body from inside a gunny bag (Exh. 1/A) lying in the ditch. Shalwar (Exh. P1), shirt (Exh. P2), bunian (Exh. P3) and coat (Exh. P4) belonging to the deceased were also found in the same gunny bag which was tied with the string (Exh. I/B) of the trousers. The place of recovery of the dead body, according to the Investigating Officer, is 200/300 yards from village Furrakhabad. The dead body was lying naked in the gunny bag. The inquest report (Exh. PV/2) and the injury statement (Exh. PV/t) were prepared and the dead body was sent for post-mortem examination. Ehsan P. W. Had reached the place of recovery before the gunny bag was opened There he identified the dead body as that of his maternal uncle Fateh Muhammad deceased. After the post---mortem examination, Hakim A.I, F. C.

13. (P. W. 21) produced some sealed bottles, one containing three spent bullets which were recovered from the dead body, and the others containing the tips of the fingers of the two hands of the deceased (presumably for identification purposes) which were taken into possession, vide memo.

14. (Exh. PN). On 5th December, licence of the Tonga (Exh. PC/1) was produced by its owner Zulfiqar A.I Shah (P. W. 26) which was taken into possession, vide memo. (Exh. PC/2).

15. On 6th December 1967, Mumtaz accused led the police to his house wherefrom he produced from underneath a wooden box, toka (Exh. P10) wrapped in blood-stained clothes shirt (Exh. P12) and dhoti (Exh. P11) which were taken into possession, vide memo. (Exh. PU). On the same day, i.e. The 6th December Riaz appellant led the police to his house wherefrom under a cot, he produced .32 bore revolver (Exh. P13) with its eight live cartridges (Exh. P17/t-8) and blood-stained clothes shirt (Exh. P14) and dhoti (Exh. P15). They were taken into possession, vide memo. (Exh. PT/5).

16. Mushtaq appellant surrendered before the City Magistrate on 11th December 1967 and requested for an identification parade, vide application (Exh. PX). He was sent to the judicial lock-up. The Investigation Officer made an application (Exh. P W 8/A) for identification by Ehsan, Naqi, Shafi, Hafiz and Ghulam Muhammad P. Ws. He made a note that Saleem (not produced) who, according to him, had joined hands with the accused party, should not be included in the identification parade. This parade was held on 15th December 1967 in the jail premises by a Magistrate 1st Class.

17. The record of proceedings by the Magistrate is Exh. PX/2. Out of the aforesaid witnesses, only Ehsan and Ghulam Muhammad were able to identify Mushtaq appellant. Ehsan stated at thend identification parade that the accused picked up by him in the parade had fired pistol shots at the deceased. Ghulam Muhammad, while identifying Mushtaq appellant, stated that he had dragged the dead body from inside. In respect of Ehsan, Mushtaq appellant objected that the witness was his close relation and that Ghulam Muhammad knew him before the occurrence. Altaf accused was arrested on 17th December 1967, from near Haveli Mian Khan. The site plan of the place of occurrence was prepared by Inam A.I Shah (P. W. 11) and is Exh. PS. On an application by the Sub- Inspector, the statements of Ghulam Muhammad, Naqi, Hafiz and Muhammad Bashir P. Ws. Were recorded under section 164, Cr. P. C. By a Magistrate 1st Class on 15th December 1967.

4. At the trial the reports of the Chemical Examiner and the Serologist were tendered in evidence.

18. The following articles were found to have been stained with human blood:- The clothes shirt (Exh. P 11) and dhoti (Exh. P 15) recovered from Riaz appellant; Toka (Exh. P10) and clothes dhoti (Exh. P 11) and shirt (Exh. P 12) recovered from Mumtaz accused. The metallic piece from the Tonga and the hair of the mare.

19. The pebbles and spent bullet found at the spot.

20. The medical evidence is contained in the statement of Dr. Nusrat Ullah (P. W. 16) before the committing Magistrate, who performed the autopsy on 3rd December 1967 at 3 p.m. The dead body was identified as that of Fateh Muhammad deceased, by his son Zulfiqar A.I and Ehsan P. W.

21. He found the following injuries:- "(1) Whole face and front of neck was crushed.

(2) Lacerated wound --" x 4--" left temporal region 2" above the ear.

(3) Lacerated wound --" x --" left temporal region 1" in front of injury No. 2.

22. "(4) Lacerated wound --" x --" in front of injury No. 3, it was in front and --" above injury No. 3.

(5) Lacerated wound 1" x --" occipital region --" to the left of mid line. Edges of injury Nos. 2, 3, 4 and 5 were charred, blacked and inverted.

(6) Laceration 3" x 2" left shoulder in front.

23. On opening the skull there was haematoma underneath the injuries Nos. 2 and 5. Haematoma had infiltrated the surrounding area. Skull under the injuries Nos. 3 and 4 was absent (destroyed and crushed). Corresponding to injury No. 2, there was hole in the temporal bone --" x --". The margins on outer aspect were fine but in the inner aspect were irregular. There was corresponding hole in the duramater, temporal lobe of the left hemisphere, flax ceretri, temporal lobe of right hemisphere, duramater on right side and had fractured the temporal bone on the right side 1" x --". The bullet bad deflected back on the posterior side after hitting and fracturing the right temporal bone and was found in the parietal lobe (right) of the lobe.

24. Corresponding to injury No. 3, there was hole occipital bone 1" x --" on the left side. The bullet had pierced the duramaters, tentorium cerebelli after piercing the posterior lobe of left hemisphere.

25. There were two bullets lying in the left parietal lobe having the same track as stated which indicated there were two fires keeping the fire-arms at the same position of injury No. 5. There was subdural haemorrhage over the surface of both the hemisphere of brain."

26. The face was crushed. Lower jaw, upper jaw, maxilla, and frontal bone were broken into pieces. The skin of the face and neck, front part was absent. The edges of the skin over the forehead and lateral sides of head and neck were sharply cut at various places and at some places it was crushed. The edges of the upper part of chest were also cut. Mud was present all over the body. The palmer aspect of feet and both palms and dorsal aspects of hands were wrinkled.

27. Both the sides of heart were empty. The stomach was empty. Large intestines contained faeces and bladder was empty. The cause of death was cardio-respiratory failure due to extensive and sudden damage to the brain caused by injuries Nos. 2 and 5, which were individually sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 3, 4 and 5 were ante-mortem and were caused by firearms. Injury No. 1 was post-mortem and was caused by a blunt and heavy weapon after removing the skin by sharp-edged weapon. Injury No. 6 was ante-mortem and was caused by a blunt weapon. On a Court question, the doctor opined that this injury could be caused by the body sliding over hard and rough surface. Under cross-examination, the doctor stated that from injury No. 5, two bullets went into brain substance and that it was on occipital region. He further stated that this injury was possible if the victim was lying "face ward" and the assailant was holding the firearm over the occipital region within a distance of three feet. At one stage, the doctor said that "injury No. 6 was not possible by a fall on the floor from the chair after receipt of the bullet injury". But that statement, it appears, was modified on Court question as mentioned above. The duration between injuries and death was a few minutes and that between death and post-mortem was about 67 hours. If calculated backward from the time of post-mortem examination, the time of occurrence would be about 8 p.m. On 30th November 1967. Exh. PR is the post---mortem report.

28. Muhammad Nazir, Washerman (P. W. 3), Muhammad Amin, Tailor (P. W. 4) and Haider A.I Siddiqui (P. W. 1) were produced to prove that the dead body recovered was that of Fateh Muhammad deceased; though Ehsan P. W. Also deposed to the identification of the dead body at the time of recovery as well as at the time of the post-mortem examination. Ashfaq Hussain, A. S. I. And Muhammad Nazir, F. C. (P. Ws. 7 and 9 respectively) deposed about the custody of the parcels which were given to P. W. 7 by the Investigating Officer. No link in this behalf is missing. Muhammad Yaqub and Muhammad Akram P. Ws. 12 and 13 respectively) reposed about the sale of the house by the deceased; while Iqbal, another Yaqub and Ghulam Rasool (P. Ws. 14, 16 and 17 respectively) appeared to prove the incident in which the deceased and Riaz appellant exchanged abuses and the said appellant thereupon threatened the deceased at about midday on the day of occurrence.

29. Muhammad Hanif (P. W. 25) is the witness of the recoveries from the houses and at the instance of Riaz appellant and Mumtaz accused. The Investi--gating Officer (P. W. 30) has also proved these recoveries. Muhammad Sarwar and Saeed Gul Khan (P. Ws. 24 and 32 respectively) are Fire-arms Experts who stated that two crime empties (Exh. P-6/1-2) recovered from the spot were fired from the revolver (Exh. P. 13) recovered from Riaz appellant. Muhammad Hussain and Muhammad Nawaz (P. Ws. 18 and 20 respectively) were produced to prove the recovery of the dead body of Fateh Muhammad from near the bank of River-Ravi at the instance of Riaz appellant; but they did not support the prosecution arid, therefore, they were allowed to be cross-examined by the Public Prosecutor and their statements made before the committing Magistrate were also transferred to the Sessions file under section 288, Cr. P. C. In those statements before the committing Magistrate the witnesses fully supported the prosecution. However, Ehsan P. W. And the Investigating Officer have also proved the aforesaid recovery of the dead body. Four Magistrates appeared as prosecution witnesses. The evidence of two of them (P. Ws. 8 and 15) is in connection with the identification parades; while P. W. 19 stated about the surrender of Riaz appellant and Mumtaz accused on 1st December 1967 and Mushtaq appellant on 11th December 1967. They all requested for their identification by the P. Ws. According to the witness, they had muffled their faces at the time that they appeared before him and he further directed them to keep their faces concealed till the identification parade was over. As to what happened: on the identification parades subsequently held, has already been noted in paragraph 3 above. P. W. 31 only recorded the statements of some of the witnesses under section 164, Cr. P. C. The site plan (Exh. PS) was prepared by Inam A.I Shah (P. W. 11). The Investigating Officer had also prepared an inspection note immediately on his arrival at the spot which has been proved by the defence in the cross- examination of that witness and is Exh. DF. It is pertinent to note that according to this inspection note, there were two electric bulbs at the shop of Muhammad Naqi P. W. And in the Verandah (at the place of occurrence). It is also noted therein that there was sufficient light from these two bulbs.

30. The various points about the place of occurrence, particularly those from where the witnesses saw the occurrence and from where the Tonga was snatched from Ghulam Muhammad P. W., are vividly described. P. Ws. 5, 6 and 7 have deposed about the licensed Tonga of Zulfiqar A.I Shah P. W.

31. Who himself appeared as P. W.

26. They have proved that the Tonga and the mare in question belonged to Zulfiqar A.I and that on the day of occurrence, Ghulam Muhammad P. W. Was plying the Tonga as servant of Zulfiqar A.I Shah. According to Zulfiqar A.I Shah, the Tonga was missing from 30th November to 5th December 1967.

32. The defence plea was that of denial and false implication due to a previous quarrel by Riaz and Mushtaq appellants with Ehsan P. W. On account of which the witness is said to have had a grudge against all the four brothers. Riaz appellant further stated that Ehsan wanted to marry the daughter of Fateh Muhammad deceased who was engaged to one of her relations in Kucha Kundigran; and that the deceased was not willing to marry her to Ehsan; and further that Ehsan married her after the death of Fateh Muhammad. The vague innuendo in this statement is that Ehsan might have killed the deceased. Riaz appellant has denied the recovery of the dead body at his instance. Riaz appellant and Mumtaz accused have denied the recoveries from their houses at their instance; nor have they admitted the ownership of the recovered articles. Mushtaq appellant also pleaded alibi; in that on the day of occurrence, he had gone to Khewra in connection with his business and was not present in Lahore. No evidence in defence was produced.

5. The learned trial Judge disbelieved the statement made by Naqi P. W. At the trial. He did not rely on the statement made by Ghulam Muhammad because the witness could not identify the accused. He also disbelieved the statements made by Muhammad Shafi and Muhammad Hafiz, the Vajaker witnesses, on account of relationship as well as for the reason of their being chance witnesses. The evidence of the Expert and a trainee from the Forensic Science Laboratory was also discarded as the learned trial Judge thought that it was a weak type of evidence; and further that in the manner the empties were tested by the trainee and Muhammad Sarwir Expert, he was unable to rely upon their opinion. It may be mentioned that while discarding the statement of Naqi P. W. Made at the trial, the learned Judge preferred, and believed not only the statement made by that witness before the committing Magistrate but also, strange enough, the other statement made by him under section 164, Cr. P. C. The evidence which has not been disbelieved and which has been relied upon by the learned trial Judge is, therefore, contained in the ocular account given by Naqi P, W. In his two earlier statements, Ehsan P. W. In his before the committing Magistrate read as evidence under section 33, Evidence Act, the recovery of the dead body at the instance of Riaz appellant and the recoveries of the blood-stained clothes from Riaz appellant and Mumtaz accused from their houses and the statements made by various witnesses about motive. The other circumstances have also been taken note of by the learned trial Judge which provide the res gestae in the case. He did not discuss the specific effect of the main items of evidence on which he relied and gave his finding in the following generalised form:- "My above discussion would show that it stands proved beyond reasonable doubt that Mushtaq and Riaz alias Rajoo committed the murder of Fateh Muhammad by firing. It also stands proved that they took away the dead body in Tonga of Ghulam Muhammad which they snatched by extortion. It also stands proved that they having committed the murder concealed the dead body in River Ravi."

33. On the basis of the above finding, he convicted the two appellants, as stated in the opening part of this judgment. He acquitted Mumtaz and Altaf accused because, as he put it, "Ghulam Muhammad tonga driver was not made to identify Mumtaz alias Mehr whom alone of all the accused he had seen from a close quarter. As regards the part played by Altaf accused the P. Ws. Have not attributed any role to him. I would, therefore, acquit them of all the charges."

6. The use of the Tonga, which was being driven by Ghulam Muhammad P. W., by the culprits has been proved by sufficient material on the file which has been mentioned above and need not be discussed here. The name of Ghulam Muhammad as the Tonga driver is mentioned in the F. I. R.

34. And he is also an attesting witness of the recovery memos. Which were prepared on the arrival of the police soon after the occurrence. Ghulam Muhammad has not been otherwise proved to be inimical towards or, in any way, interested against any of the accused persons. There is no doubt about that part of his statement in which he stated to be present near the place of occurrence. The learned trial Judge has not relied on the statement of this witness, for the reason that he could not identify even that culprit (said to be Mumtaz accused) who snatched his Tonga from him and who must have been seen by him from very close quarters. Though the witness, on a direct question by the Public Prosecutor, pointed towards all the accused persons sitting in Court to be the culprits, yet the fact remains that immediately before that he was unable to point out Mumtaz accused and twice picked up a wrong man in the person of Riaz appellant. This would show that the witness cannot be depended upon in respect of his pointing out the A four accused persons in Court. This is particularly so because, according to the statement made by this witness, Mumtaz accused, whom he failed to identify, not only snatched the Tonga from him but also threw him down and caused him one or two fist blows. His pointing out towards Riaz as the culprit who snatched the Tonga from him, may raise only a suspicion against that accused as having been seen by the witness at the spot; butt it cannot be treated as legal proof. The learned counsel for the accused pointed out that in the F. I. R. The eye-witnesses apart from Ehsan are specifically named as Saleem and Muhammad Naqi and that the name of Ghulam Muhammad is not mentioned as an eye-witness.

35. His name is only mentioned in the context of the Tonga. According to him this shows that immediately after the occurrence, Ghulam Muhammad did not inform the first informant that he had seen the occurrence or had seen the culprits. The learned counsel has also brought to our notice that according to the statement of Ghulam Muhammad, he had turned his Tonga towards the opposite lane at a place considerably away from the place of occurrence and that the place where his Tonga was snatched is still farther away; and further that he must be facing towards the opposite direction of the place of occurrence; therefore, it was not likely that he may have actually seen the culprits firing at the deceased and thus he could not identify them. He also pointed out that from the place where the Tonga was snatched from witness he could not see the place of occurrence. On this last point, the witness made two contradictory statements in his cross- examination. But this suggestion made in an indirect way has been denied by the Investigating Officer who made a detailed inspection note of the spot. It is, no doubt, clear that according to the prosecution evidence there was light of two bulbs at the time of occurrence but it is nowhere in the evidence that at the place where the Tonga was snatched from the witness, there was sufficient light for identification. And he himself has not stated that he advanced from that place towards the place of occurrence where the dead body was loaded in the Tonga and that he then identified the culprits. For all these reasons, we are of the view that the failure of the witness to identify a particular accused person can be due to the reason that he did not identify the culprits at the time of the occurrence. Therefore, agreeing with the learned trial Judge, we consider that it will not be safe to rely on the statement of this witness in respect of the identity of the culprits and, therefore, discard the same.

36. There is another part of the statement of this witness which implicates the four accused as the culprits. He stated in examination-in-chief that Shafi, Saleem, Hafiz, Bhola and Naqi P. Ws. Saw the occurrence and that Bhola (Ehsan named the four accused persons at the spot as assailants). He repeated this assertion in cross-examination and added that Naqi P. W. Also told him the names of the assailants. Not only this, he stated that Ehsan had given the names of two persons who were carrying the knives. Contrary to the statement made by this witness that Bhola saw the occurrence, he had earlier stated that Shafi, Saleem, Hafiz and Bhola came a little while after the occurrence.

37. Though the statement made later in time, in examination-in-chief, shows that Bhola and Saleem had seen the occurrence, yet the fact remains that this witness made a discrepant statement on this point. There can be two reasons for the witness having made such a statement. As will be presently shown, several other witnesses made such statements as concession to the accused persons and demonstrably with motives other than that of telling the truth. This witness also stated in his cross-examination that his life was threatened by the accused persons and that for that reason he felt so afraid that he left Lahore and went to Layallpur after the occurrence. He might have created this discrepancy intentionally. There can be another reason also. He stated in cross- examination that he did not know whether some articles like chairs and tables had fallen close to the place of occurrence because, as he explained, he was away from that place from where such fallen articles could be visible. He also stated that he could not give the approximate distance between the persons standing close to the two persons who were armed because he was at a little distance. It may be that due to the fear, the witness remained at some distance till he was sure that there was nothing to be afraid of and it was then only that he went near the place of occurrence and, at that time, saw the eye-witnesses mentioned above present there; and that earlier to that and after the departure of the culprits during the time that he spent away from the spot, he did not either notice or care to notice as to who saw the occur--rence and from which place. He could not have, at the time that the occurrence took place, noticed Ehsan P. W. Because, according to his position at the spot, he was towards opposite side of the place of occurrence and still farther away from this witness. According to this explanation, it is possible to reach the conclusion that the witnesses he has named as eye-witnesses were present at the spot; but with regard to the face as to what names of the culprits were mentioned, this witness cannot be depended upon. Therefore, we consider it safe to exclude this part of his statement also from consideration.

38. The only remaining part of his statement which has some bearing in the case is that of his having been a witness to the recoveries from the spot which include the two crime empties. That part of his statement has not been specifically challenged in cross-examination. Moreover, it is supported by the various recovery memos including Exh. PG which relates to the two crime empties. His presence at the spot, it has already been noticed is proved and is not in doubt. These circumstances combined together show that he is a genuine witness of the recoveries from the spot. Therefore, we rely on this part of statement of the witness only and discard his statement so far as it purports to implicate, directly, the appellants or the acquitted accused.

7. The statements of Muhammad Shafi and Muhammad Hafiz P. Ws. Who can be described as the Vajtaker witnesses have been discarded by the learned trial Judge. Though he has not given sufficient reasons for discarding those statements, yet on a further scrutiny we find that there are additional reasons for not relying on their statements. Muhammad Shaft claimed in the examination-in-chief that he knew the four accused persons because they had family relations; but when he was made to identify Mushtaq appellant in the identification parade, he failed to pick him up. At the trial, he explained that he had pain; therefore, he could not properly identify the culprits. This hardly is the reason for failure to identify and has not impressed us. Moreover, if it is believed that photograph of Mushtaq was being shown to the persons who were to identify him as claimed by Ghulam Muhammad P. W. It is difficult to imagine that the photograph may not have been shown to this witness also; and if that is so, his failure to identify Mushtaq appellant may not be without some important reason. This suspicion about the witness is strengthened by another fact also. Even in his examination-in-chief, he tried to concede that Ehsan came to the spot after five minutes of the arrival of the witness and that on the enquiry of the witness he (Ehsan) told him that Ch. Fateh Muhammad had been killed but he had not named the assailants. On the contrary, the witness claimed that he gave the names of the culprits to Ehsan. But towards the closing part of his examination-in-chief, he had again changed sides and stated that when he reached the spot, it was Ehsan who told him that Fateh Muhammad had been murdered by Raju (Riaz), etc. Earlier in the very first sentence of the cross-examination, he stated that it was incorrectly recorded in his examination-in---chief that Ehsan had not named any assailant to him when he had asked him as to what had happened and clarified that his subsequent statement to the effect that Ehsan told him about Raju, etc, having murdered Fateh Muhammad was correct. But immediately thereafter, he appears to have changed his position again and on a leading question, he stated: "It is correct to suggest that before the arrival of Bhola the people collected there, were showing their inquisitiveness as to the assailants. In my presence none of the persons collected there named any person who caused that murder". So many omissions and discrepancies in respect of his statements before the police, one made under section 164, Cr. P. C. And the other made before that committing Magistrate were also brought out in the cross---examination. He also made two different statements in respect of the position of the dead body in the Tonga in his evidence at the trial. For all these reasons, he is an unreliable witness and cannot be depended upon for any purpose.

39. So far as Muhammad Hafiz P. W. Is concerned, he appears to be an independent witness and, it appears, has tried in his examination-in-chief to state what was the correct position. He stated that out of all the four accused he personally knew only Riaz and Mushtaq. On the day of occurrence, he saw a Tonga coming at high speed from Shah Alam Chowk which went towards Chowk Surjan Singh; and that Raju (Riaz) and one other were sitting on the front seat. The Tonga was being driven by Raju. Two other persons were occupying the rear seat. On Court question as to where Mushtaq appellant was sitting, the witness appears to have given an honest reply that he did not care to particularly note Mushtaq; therefore he could not say whether Mushtaq was occupying the rear seat. If, according to the prosecution, the incident that he saw is to be visualised, the above statement would appear to be very natural. It would be possible for a bystander to pick out and notice a person who is driving the Tonga when it is known that some offence had been committed and the fires were being shot. The witness in that commotion and hurry, however, would not be able to notice all the passengers in the Tonga carefully. Therefore, it appears that, in this behalf, he (the witness) made a correct statement. Thereafter, he stated that a dead body was lying in the Tonga with feet hanging outside. This part of the statement also cannot be considered to be doubtful. The feet may have been dangling outside the Tonga. His deposition proceeds that thereafter he reached the place of occurrence where he saw Ehsan, Ghulam Muhammad, Naqi, Shafi P. Ws. And Saleem. Ehsan was weeping and saying that Fateh Muhammad (his uncle) having been murdered had been taken away. At that moment, the witness did not hear Ehsan uttering the names of the persons who had committed the murder or had taken away the dead body. This also appears to be a natural statement and does not, in any way, contradict the prosecution version. It was not necessary for Ehsan if he was weeping at that time to mechanically repeat first the name of the deceased person and then go on repeating the names of the culprits; it is quite possible that when this witness reached the spot; Ehsan was weeping and wailing and was in that mode giving out the name of his deceased uncle. The witness states that he told Ehsan that Raju, etc. Had taken away the dead body. This does not mean that Ehsan did not know that Raju, etc. Had taken away the dead body. This appears to be an additional information because the witness claimed to have come from the side towards which the Tonga was taken away. On this Ehsan made this witness and others stand on the spot and himself went to fetch the police. In cross-examination, the witness stated that when the Tonga was going towards Surjan Singh, the person occupying the front seat beside Raju was firing in the air. It appears that till this stage the witness was taking care that no person about whom he had any doubt should be named by him and he named only one person. i.e., Riaz. But soon after on the asking of the defence to point out Riaz appellant, the witness pointed at Altaf accused. He also admitted that earlier at the identification parade he had not been able to identify Mushtaq appellant. A discrepancy was brought out in the cross-examination with respect to his statement under section 164, Cr. P. C., relating to the position of legs of the deceased person in the Tonga; but that is an insignificant discrepancy. Effort was also made to show that it was not possible for this witness to have been present in Chowk Sua Bazar near which he saw the culprits taking away the dead body. But the answers given by him do not shake his credit on that account. The fact, however, remains that he failed to identify the two appellants, as the culprits, he had seen taking away the dead body in the Tonga. As noticed above, according to this witness the prosecution case about Ehsan's presence and other witnesses at the spot before the arrival of this witness is supported by his statement in examination-in-chief. The fact that Ehsan was not specifically giving out the names of the culprits, we have already noticed, does not go against the prosecution. The impression created by the different parts of the statement made by this witness is that he did identify Riaz appellant as one of the persons who took away the dead body in the Tonga. However justified and strong this impression may be, it will not be in safe dispensation of justice to ignore his failure to identify the appellants. And if he could not identify the two appellants, it will be more unsafe to rely on his statement in respect of the remaining accused persons about whom he said that he did not know them personally. It was vehemently argued by the learned Assistant Advocate-General that such like concessions were made by some of the witnesses with particular purpose of helping the accused persons and were not statements of truth. That might be so and many circumstances in this case also point towards that suggestion (some of which we have already noted). But it will be dangerous to ignore very important part of the statement of this witness. Doing so will be highly prejudicial to the accused persons. Therefore we, although with reluctance yet in the interest of justice, discard the statement of this witness also.

40. It may be mentioned that the learned counsel for the accused vehemently contended that that part of the statement of Muhammad Shafi P. W, be accepted as true where, at one stage, he stated that Ehsan P. W. Came at the spot a little later. We have already discussed that part of the statement of that witness and have come to the conclusion that lie made variant statements on that question, one of them being that Ehsan was, in fact, present at the spot when the witness reached there and that he told him about the names of the assailants. However, we have discarded the entire statement of the witness for various reasons already mentioned. There is no reason for us to take out one or two sentences of the entire statement made by Shafi P. W., on which particularly he contradicted himself several times. We may, however, remark that if Shafi P.

41. W. Is to be believed, in that case all the four accused have been directly implicated by him as having been seen in the Tonga and as also having been seen by those persons who saw the occurrence. But for reasons already stated, we are not ready to believe any part of the statement of that witness. Same applies to the suggestion of the learned counsel in respect of the statement of Hafiz P. W.; in that he did not hear Ehsan P. W. While he was weeping, to have named the assailants.

8. The learned trial Judge has believed the statement made by Naqi P. W. Before the committing Magistrate and read it as evidence at the trial by virtue of section 288, Cr. P. C. He also treated the statement of the witness under section 164, Cr. P. C. e as evidence at the trial. But that is clearly illegal. After carefully going through all the statements made by Naqi P. W., we have come to the conclusion that he is not the type of witness who can be depended upon for any purpose. It cannot be said about him that he might have told the truth while appearing at the commitment stage and may have changed his position only at the trial stage. The impression created by the deposition of this witness is that he has absolutely no respect for truth or for the oath under which he made the three statements. Though there is sufficient indication in his statement that he changed his position several times at the instance of and in order to favour the accused persons, yet his conduct is such that it cannot be said that when he made any statement in favour of the prosecution, he may not have done it on the asking of or at the request of some other person or the police. He is the type of a witness who can make statement in favour of any person regardless of the fact whether it is true or false. The statement made by him at the trial is so full of falsehood and self-contradiction on very important and material points that it is unnecessary to narrate all of them. It may have sufficed to say that we have no reason to differ with the learned trial Judge about the statement at the trial of this witness. To cite only one instance about a part of the statement of this witness, it may be mentioned that after giving some particulars about himself, the witness made a categorical statement as follows:- "I do not know the accused personally "

42. When asked to point out the four persons who had come at the spot as assailants, he made another categorical statement as "identification is impossible". On this the learned Public Prosecutor was allowed to cross-examine the witness as he had made a departure from his statement before the committing Magistrate where he had not only stated that he knew the culprits but had also mentioned their names and their relationship inter se. On cross-examination by the Public Prosecutor, he started giving the statement in support of the prosecution as he had made before the committing Magistrate and deposed about his being an eye-witness and all the four accused persons being the culprits; the presence of Ehsan P. W.; the conduct of the bystanders to naming the four accused persons as culprits; the arrival of the Vajtaker witnesses: and their having seen the four accused persons as having taken away the dead body; Ehsan having gone to the police station for making report; the arrival of the police, and the recoveries from the spot in his presence; and also about the recovery of the Tonga in his presence He further strengthened the above deposition by stating that he had made a statement under section 164, Cr. P. C. And that he had correctly named the four accused persons as being the culprits. But in the very first sentence of his cross-examination, probably on a leading question, he answered as follows:- "I correctly recorded in my earlier portion of my statement recorded today that the accused were not known to me."

43. About two pages of the cross-examination then show the bankruptcy of the witness in respect of oath or truth. He contradicted himself on almost every item of his deposition. The same can be said about his entire statement at the trial.

44. The learned counsel for the appellants accused argued that the learned trial Judge did not correctly appreciate the statement made by this witness before the committing Magistrate; in that, according to the learned counsel, even before the committing Magistrate the witness had not supported the prosecution. We, rather, are inclined to agree with the learned counsel. The witness was examined by the learned committing Magistrate as P. W. 11 on two different dates. On the first date he had named all the four accused persons as the culprits and as having been seen by him to have caused the murder of Fateh Muhammad but he made a slight variation from the prosecution version, in that he named Mushtaq appellant as the person who snatched the Tonga from Ghulam Muhammad. In all other particulars, he fully supported the prosecution version in examination-in---chief. About his failure to identify Mushtaq appellant in jail, he gave the explanation that he was nervous about the murder. But he admitted that he did not state this mental condition to the Magistrate who conducted the identification parade. He admitted that he had been challaned by the police along with Ehsan P. W. In a smuggling case about a year before be made the statement; which would come to about couple of months before the occurrence. On the first day, i.e., 31st July 1968, when he was examined and cross-examined, the Tonga had not been brought to the Court by the Superdar. Therefore, his examination and cross-examination on that point. (It is speci--fically so mentioned in the note by the learned Magistrate which is made in the deposition of this witness) was postponed to another date. The witness was again examined by the prosecution on 19th August 1968, on the point of the identity of the Tonga and its recovery, subsequently in the presence of the witness from Badami Bagh vide recovery memo. (Exh. P. M.) which he admitted to have signed. In cross-examination, however, after putting some questions about the point on which the witness was to be examined and cross-examined on that day (the Tonga), the Cross-examiner started putting questions, about the occurrence, to the witness; and it was on the third question that the witness started making concession to the accused persons by saying that he saw Ehsan P. W. Near the place of occurrence about ten minutes before the deceased came, that when the firing started he ran several paces away, and that when the culprits had left the spot with the dead body he only then came back to his shop and at that time saw Ehsan P. W. Standing there and this was seven or eight minutes after the departure of the culprits.

45. After having stated so which means that he did not remain present at the spot during the occurrence, the witness further conceded to the defence that the deceased was fired at by the accused from a distance of three to four yards. This, it is obvious, was contrary to what the medical evidence showed that the shot may have been fired from a close distance of about three ft. On this the prosecution appears to have reminded the Court and the defence that, according to the earlier note of the Court, the witness had already been examined and cross-examined about the occurrence and was not to be questioned in that behalf on that day; whereupon, the learned committing Magistrate made a note about the objection having been raised by the prosecution in the following words:- "It has been objected by the prosecution that the witness should not be questioned about the details of the incident other than the recovery and identification of the Tonga. This objection was raised before the witness was cross---examined."

46. The witness was not cross-examined any more. The above narrative is self-explanatory. We are of the opinion that even at the commitment stage the witness had departed from the path of truth and had decided to make statement on considera--tions other than the desire and compulsion for telling the truth. In these circumstances, after carefully considering all the aspects of the evidence given by this witness, we have come to the conclusion that he cannot be depended upon for any purpose and it is not safe to rely upon any of his statements. Therefore, while agreeing with the learned trial Judge that his statement at the trial should be discarded, we disagree with him on the question of the value of his statement before the committing Magistrate and decide to discard that statement as well being that of a person who is not a truthful witness.

9. The statement made by Ehsan P. W. Before the com--mitting Magistrate and transferred to and read at the trial under section 33 of Evidence Act, has already been noticed in paragraph 2 of this judgment. The value of this statement needs to be examined. The learned counsel for the appellants/accused criticised that Ehsan P. W. Being a close relation of the deceased and being a resident of a place about two miles away from the place of occurrence, his statement should not be believed for the twin reason of he being a relation and a chance witness. In order to see whether such a statement is to be believed or not, it is to be seen, whether he witnessed the occurrence or not. The only fact that he is stated to be present at the spot by chance cannot detract from his veracity so long c as his presence at the spot does not become improbable; because some element of chance is always present in such like situations. The attending circumstances do not show that his presence at the spot is improbable. The most important circumstance to be noticed is that, the occurrence is said to have taken place at about 7-45 p.m. There is no, doubt about the fact that whosoever the culprits were, they snatched the Tonga of Ghulam Muhammad, brought it at the place of occurrence, loaded the dead body and then went towards Rang Mahal side. This must have taken some time. It is probable that the person who was to make the report must have started from the place of occurrence after all this had happened. The Police Station is no doubt at a distance of three furlongs but the F. I. R. Was lodged at 8-15 p.m. Therefore, it will have to be held that the F. I. R. In this case was lodged with a great amount of promptitude. Two conclusions are immediately drawn from this finding: firstly that the eye-witnesses mentioned therein D could not have been procured in such a short time if they had not seen the occurrence; and secondly that the person who runs to the Police Station immediately after the occurrence must have had some connection with it; may be as an eke-witness. It is true that in his cross-examination it was elicited that his house is at a distance of two miles from the place of occurrence. Nowhere it is suggested that if not present at the place of occurrence, he was available at some shorter distance from where he could be summoned so as to be made into an eye--witness and also to act as first informant. The very fact that his place of residence is at about two miles militates against the supposition that he may have been summoned from his house and thereafter without witnessing the occurrence may have posed himself as an eye-witness. It was almost impossible, in the short span of time which elapsed between the occurrence E and the lodging of the F. I. R., for someone to have brought Ehsan from his house for lodging the F. I. R. It is more particularly so because no one at the spot other than Ehsan was, in any way, interested for having gone to the house of the witness so soon as to make him into an eye-witness. It was brought out in the cross-examination of Ehsan that during the days of occurrence, the deceased and his son Zulfiqar used to reside with the witness. It was suggested to Muhammad Shafi in cross-examination by the defence that the daughter of Fateh Muhammad deceased was married to the witness after the occurrence. Riaz appellant also made his statement to that effect at the trial. This would show that the witness was not only a close relation of the deceased but during the days of occurrence (if not already promised) at least wanted the hand of the daughter of the deceased for himself. In such a background if he claimed to be with the deceased at the time of occurrence, it will not be unusual and unnatural. The fact that he provided company to the deceased in those days has been independently proved by several persons who have been examined in connection with the incident that took place between the deceased and Riaz appellant on the day of occurrence at about noon time. We have no doubt about the credibility of those witnesses and, as is discussed hereinafter, we are of the view that the said incident did take place in the manner deposed to by those witnesses.

47. Ehsan P. W. Figures in that incident also as a person who accompanied the deceased. It is in evidence that 9-A Shah Alam Market, the building where the occurrence took place, belonged to the deceased. According to the statement made by Sh. Muhammad Iqbal (P. W. 14) one of the above-mentioned witnesses, the deceased had not rented out one of the shops in this building and was using it as a sitting place (baithak) and persons within the sphere of acquaintance of the deceased used to come and sit with him at that place. It appears from the statement of that witness as well as from the other aforesaid witnesses that Ehsan was one of those persons. These circumstances also show that the presence of Ehsan at the place of occurrence is not by pure chance and is not, in any way, improbable.

48. There is another important and significant circumstance in the statement of Ehsan which has not been challenged in the cross-examination. He stated that one Salah-ud-Din, the uncle of the accused, came there, i.e., at the place of occurrence, shortly before the attack and "had some talk with the deceased"; but the witness did not devote any attention to that talk. This circumstance was not introduced for the first time in the Court but finds mention in the F. I. R. Also. It must have happened in the manner as stated by the witness. None is aware as to what that talk was. There is an indication in the evidence and a statement to that effect has also been made by Mushtaq appellant at the time of the identification parade that, the parties, i.e., the deceased and Ehsan on the one hand and the accused persons on the other, have some relationship with each other. It is not unusual and impossible that some relation of the accused might have been on good terms with the deceased and might have had something to tell to the deceased which needed to be talked in secret. We cannot surmise that it must have had some connection with the then expected attack on the deceased. But the fact remains that this circumstance was noticed by Ehsan and has not been challenged by the defence. If Ehsan would not have been present at the time of occurrence, there was no need of introducing the above circumstance because apparently it is not a piece of inculpatory evidence against the accused persons and Ehsan would not have introduced it on the asking of somebody else; if it would not have been true. The effect produced by all the above circumstances and the general impression created by the statement made by this witness is that he was present at the time of occurrence and did witness it. We examined the statement with sufficient care with this particular aspect of the case in view and found nothing inherent in the statement to suggest that Ehsan had not witnessed the occurrence. Therefore, we are not ready to accept the contention of the learned counsel that the statement of this witness should be rejected out of the hand simply because he is related to the deceased and has been described by the learned counsel to be a chance witness. On the contrary, we find that even though he is a relation of the deceased, the effect whereof we will discuss hereinafter, his presence at the spot at the time of occurrence cannot, in any way, be doubted.

49. Now we notice some other arguments, by the learned counsel, advanced in support of the contention that the presence of this witness at the spot should not be believed. It was contended that according to Naqi P. W. And some other witnesses. Ehsan P. W. Reached the spot after the occurrence. Particular stress was laid on the statements of Muhammad Shafi and Muhammad Hafiz, the two Vajtaker witnesses. We have already thoroughly discussed those statements. We do not agree with the learned counsel that sum total of the statement of each of these witnesses produces an effect that Ehsan was not present at the time of occurrence; though effort was made to create such an impression. In fact each one of them while denying at one place accepted at another the position that Ehsan was a witness of the occurrence. However, we do not want to rely on the statements of any of these witness because, as discussed above it is not safe to do so. They cannot by depended upon whether for inculpatory or for exculpatory purpose. Position of Ghulam Muhammad P. W. Is slightly different. We have relied upon his statement in connection with the recoveries from the spot. And about Naqi P. W., we have already made comment that he has absolutely no respect for truth. Therefore, we cannot agree with the learned counsel that the statement made by a straightforward witness like Ehsan should be judged with a yardstick provided by the statements of such witnesses who cannot at all be depended upon as truthful witnesses. It was next contended that according to the witness he was in the side lane for the purpose of urinating, when the occurrence took place and, therefore, he could not have witnessed the same. The place from where he saw the occurrence is shown in the site plan as being at a distance of 11 ft. Both the places fall on a straight line and there is absolutely no material to suggest that there was any obstruction in the view of Ehsan so far as his having witnessed the attack on the deceased is concerned. Moreover, when such an occurrence takes place, it cannot be imagined that the witness would be fixed to a single position and would not move even a little for placing himself in such a position as to see the occurrence when the attack is by fire-arms and is on a close relation. The Investigating Officer was cross-examined by the defence in respect of an inspection note prepared by him immediately on arrival at the spot and it was not exhibited by the defence as Exh. D. F. Nothing favourable to the defence comes out of either the cross-examination or from the inspection note (Exh. D. F.) A small discrepancy has been pointed out in the statement of Ehsan when compared with his statement con--tained in the F. I. R. (Exh. P. O.), in respect of the fact whether or not he was urinating at the time of occurrence in the lane. It was not mentioned in the F. I. R. That he was urinating in the lane; while in Court he stated so. We have carefully examined the statement made by him in the Court as well as that contained in the F. I. R. Firstly, there is no such discrepancy, and secondly the so-called variation in the statement is an unimportant omission. The statement of the witness is that he was in the lane in connection with urinating and when the firing started he was tying the string of his trousers. Therefore, we are unable to find any force in the contention of the learned counsel that the position of the witness at the time of the occurrence does not support his claim that he saw the occurrence. It was also contended that it is usually with the defence counsel not to fully cross-examine an important witness during the commitment proceedings; therefore, the statement of this witness transferred under section 33 of Evidence Act should not be attached much importance. The aforesaid provision of law has fully been complied with in this case. It has been proved by prosecution evidence that Ehsan had died before he could be examined at the trial and this fact, no doubt, has been admitted by the defence also. The explanation to section 33 clearly says that a criminal trial or enquiry shall be deemed to be proceedings between the prosecutor and the accused within the meaning of that section.

50. Therefore, the condition about the proceedings being between the same parties, by the very nature of those proceedings, stands satisfied. Another condition is about the questions in issue being substantially the same in both the proceedings. There is no dispute about it. And the third condition is that it must be shown that the adverse party "in the first proceedings had the right and opportunity to cross-examination". There is ample authority in support of the view that when the right and opportunity to cross-examination is proved, the fact that the party having the right and opportunity failed to cross-examine, will not affect the use of the statement under section 33 of Evidence Act. However, it is not necessary to give any considered opinion on that aspect of the interpretation of section 33, in this case; IF because we find, as a matter of fact, that Ehsan P. W.

51. Was cross-examined by the defence in the commitment proceedings The cross-examination is not short and material points have' been dealt therein. We have also noticed that the defence did not follow the usual rule of reserving the cross-examination on important witnesses at commitment stage, in this case. It has already been noticed that important admissions were obtained by the defence from Naqi P. W. During cross-examination at the commitment stage and the cross-examination on that witness is also fairly lengthy. Another circumstance to be noticed in this behalf is that Ehsan P. W. Was examined before the committing Magistrate on 13th July 1968 and he was cross-examined on 31st July 1968. This would show that the accused and the learned counsel for defence had more than sufficient opportunity to cross-examine the witness in any manner they liked, and it cannot be said that the defence counsel had insufficient time to prepare for cross---examination. Therefore, we find no force in this contention of the learned counsel either.

52. The result is that looked at from whatever angle, the statement of Ehsan P. W. Cannot be discarded on the basis either that the witness did not see the occurrence or that it is, by its nature, a weak type of evidence.

10. The next question that arises is whether the statement of Ehsan P. W. Should be believed in respect of all the accused persons or that the rule of caution should be applied and that corroboration should be sought qua each accused person, in order to give a finding of guilty in this case. It is true that there is no other evidence except the statement of Ehsan that all the four accused persons wanted to purchase the house sold by the deceased to Yaqub and Akram P. Ws.

53. And that for that reason the accused party felt annoyed with the deceased. But the fact remains that this statement has been made by the witness who is a relation of the deceased. Therefore, it cannot be entirely ignored. According to him the sale took place 6/7 years before the occurrence.

54. But a more certain statement has been made by another directly connected witness, i.e. Ghulam Rasool (P. W. 17), who had the complaint in respect of the nuisance that he suffered due to a projection in that house. He, in his cross-examination, stated that the house was sold in 1963, i.e. About four years before the occurrence. Ehsan P. W. Also stated that Riaz and Mushtaq appellants used to abuse the deceased due to the above-mentioned annoyance. He, admittedly, is a close relation of the deceased and it is in evidence that he has married his daughter subsequent to the occurrence. It is also in evidence that on the day of occurrence there was a serious altercation involving exchange of abuses between the deceased and Riaz appellant at about noon time. All these circumstances would show that Ehsan is in the position of an interested witness in this case.

55. The rule of prudence is that in order to avoid any risk of an innocent person being convicted, independent corroboration should be sought in respect of each accused person. In this case, this rule of prudence has a pronounced application because all the accused persons are real brothers.

56. Therefore, in order to exclude every possibility of an error about any accused who may have been falsely implicated due to any interest against him because of his own position or his position of being the brother of another person who may be guilty, we proceed to examine those pieces of circumstantial evidence which are generally considered to be corroboratory.

11. The first important piece of such evidence is the immediate cause of the occurrence. Yaqub (P.

57. W. 12) and Muhammad Akram (P. W. 13) are real brothers and are absolutely independent witnesses. They have proved the purchase of the house from Fateh Muhammad deceased. It was purchased in the name of the wife of Akram P. W. Yaqub P. W. Stated that the stairs leading to the second storey of the house were slightly projected towards the adjoining house of Ghulam Rasool.

58. Sh. Iqbal (P. W. 14), Muhammad Yaqub (P. W. 16) and Ghulam Rasool (P. W. 17) all deposed that on the day of occurrence they went with the deceased to the house of Yaqub (P. W. 12) so that the question of projection which was causing nuisance to Ghulam Rasool P. W. Should be settled. As Yaqub could not be contacted, these persons together with the deceased and Ehsan P. W. Were coming back when an encounter took place between the deceased and Riaz appellant. It is in this encounter that both of them not only exchanged abuses but, according to some of the witnesses, Riaz appellant also gave some threat to the deceased. According to Sh. Iqbal P. W, in order to avoid the ugly situation he and the other witnesses took Fateh Muhammad deceased aside. It is to be noticed that this witness made a very careful statement and avoided anything which could even be considered as exaggeration. For example, in examination-in-chief he stated as follows:- "I do not remember who abused first, but most probably Rajoo abused first. While Rajoo was abusing he did not get down of the tharra."

59. Then he stated that they took the deceased aside. It means that he did not, in any way, reduce the part played by Fateh Muhammad deceased. In cross-examination also, he adopted the same attitude and stated that he "did not hear Rajoo throwing any challenge that he would settle with Fateh Muhammad." In cross-examination, he admitted that in 1947 he had joined in business with the deceased for one year. This admission also appears to be very straightforward but it does not, in any way, make the witness as an interested one. He has explained in cross-examination as to why he had gone to Shah Alam Market on the day of occurrence. He stood the test of cross- examination and nothing has been brought out to show that he was not telling the truth. We can ignore the statements of other witnesses in respect of threat, by way of abundant caution; though the possibility cannot be ruled out that the threat uttered by Riaz appellant may not have been heard by Muhammad Iqbal and at the same time may have been heard by the other witnesses.

60. But it will be safe to exclude that part of the statements of these witnesses because of the statement made by Muhammad Iqbal. After the exclusion of the threat part of that incident, the remaining circumstance that the deceased and Riaz appellant had altercated and the situation had reached such a pitch that Fateh Muhammad had to be physically taken aside by the witnesses shows that the said incident could be considered as an immediate cause of the occurrence. And if Riaz appellant has been named as one of the assailants, that incident is a corroboratory circumstance against the said appellant.

12. The learned trial Judge has discarded the evidence of the two Experts from Forensic Science Laboratory, on insufficient and untenable grounds. Therefore, that piece of evidence needs re- examination. As already- noticed, that part of the statement of Ghulam Muhammad which relates to the recovery of empties (P6/1-2) from the spot, cannot be ignored. That recovery has also been proved by the Investigating Officer. The recovery memo. Is Exh. P G which is attested by Ghularr.

61. Muhammad and Naqi P. Ws. We have already excluded the statement of Naqi P. W. There is nothing in the statements of Ghulam Muhammad and the Investigating Officer, or for that matter in the recovery memo. (Exh. P G) which should put us in any doubt about this recovery. The only criticism that there was no need for any of the culprits to have ejected the empties from the revolver is not based on any cogent reason. Though it is in evidence that three or four shots were fired at the spot to accomplish the act of killing the deceased, yet it is nowhere stated by anybody that the shots were not fired after the occurrence at the spot in order to scare away the people who must be present in numbers in the Bazar. In order to agree with the learned counsel that there was no need for ejecting the empties (Exh. P6/1-2), one would have to Imagine that the revolvers were fully loaded before they were used at the spot. May be that after firing some shots, the culprit needed reloading for the purpose of effecting the departure from the spot and taking away of the deceased. Therefore, we find no force in this criticism. The recovery of the revolver (Exh. P. 13) from the house of Riaz appellant at his instance has been proved by Muhammad Hanif (P. W. 25) and the Investigating Officer. Nothing has been brought out in the cross-examination to discredit Hanif P. W. Except that he is a labourer. In absence of any other circumstance to doubt his veracity, we will not discard his statement due to the only fact that he is a labourer. He appears to have made an honest statement. When asked in cross-examination whether the articles recovered from Mumtaz accused were blood-stained, he stated that he did not remember because at that time he had not cared to see the blood stains on those articles. He was subjected to a fairly lengthy cross-- -examination and the defence has not been able to elicit anything favourable from him. Of course, the witness admitted that when he was asked to point out Riaz appellant and Mumtaz accused at whose instance the recoveries had taken place, he could not point them out. This is explainable.

62. The witness had seen these accused persons only for a while in connection with the recoveries. He was examined after about nine months in the committing Court. Therefore, it was quite natural that he was not in a position to make identification. However, his statement is clear that in this very case two persons led to various recoveries. According to the statement of the Investi--gating Officer, those persons are Mumtaz accused and Riaz appellant. Therefore, the combined effect of the statements by these two witnesses is that the recovery of the revolver (Exh. P. 13) has been proved against Riaz appellant.

63. The evidence about the transmission of the crime empties (Exh. P6/1-2) and the revolver (Exh. P. 13) to the Forensic Laboratory and the receipt thereof in an untampered condition has been proved by the prosecution and the learned counsel has not pointed out any circumstance to show that any link was missing. Saeed Gul (P. W. 32) who held the rank of a Sub---Inspector Police was working as a Trainee in the Forensic Science Laboratory in the month of December 1967. When he received the case (he means the parcels), the seals were intact. He was not cross-examined on this part of the statement. He marked the crime empties as `C/1' and 'C/2' and also put signatures on the body of the revolver. Nothing has been pointed out to show that these very marked articles are not the exhibits presented in Court; nor has it been shown that these articles were not subsequently examined by Muhammad Sarwar (P. W. 24), the Expert. Saeed Gul examined the articles in the capacity of a Trainee. He noted the points of similarity. He also prepared photograph which is Exh.

64. P. W. 24/A and recorded the note of his inspection (Exh. P. W. 32/B). The result of the examination by this witness was checked by the Director, Forensic Science Laboratory, and Muhammad Sarwar P.

65. W., and all three of them concurred in the opinion. In cross-examination, he stated that he had passed F. Sc. Examination and that when he joined service, he was 20 years of age. Earlier in examination-in-chief, he stated that he was posted in the Laboratory in August 1967, i.e., he was already working as 4 Trainee for about four months when he dealt with this case. He, of course, admitted in cross-examination that when he examined the articles in this case, by that time he had not appeared as a witness in any case. The above is the gist of his entire evidence in examination-in-chief as well as in cross-examination. This would show that the defence did not challenge the identity of the exhibits examined by this witness nor was it challenged that the photograph (Exh. P. W. 24/A) did not relate to any of these exhibits.

66. According to Muhammad Sarwar (P. W. 24), he is a Fire-arms Expert and he examined hundreds of fire-arms and has appeared in different Courts as a Ballistic Expert. He stated about the receipt of the parcels of the above mentioned articles with seals intact in the Laboratory. The crime empties which he examined bore the marks `C/1' and `C/2' and he examined them for the opinion whether or not they had been fired from the revolver (Exh. P. 13). In his opinion, the two crime empties were fired from the revolver (Exh. P. 13) and he gave the following points of similarity for his opinion:- "(1) There were breach face marks shown as A and F in the photograph.

(2) There was depression of its own nature shown at point B in the photograph.

(3) There was a curved dent shown at point C in the photograph.

(4) There was a rectangular mark shown at point D in the photograph.

(5) There was an inclined ridge shown at point E in the photograph.

(6) There was an inclined dent on the rectangular mark shown at point G in the photograph."

67. He deposed about the photograph (Exh. P. W. 24/A). He gave his own report which is Exh. P. W. 24/B.

68. The photograph is the composite photograph of crime empty 'C/1' and one test empty which was prepared from revolver (Exh. P. 13). He was thoroughly cross-examined and the answers given by him show that he is a fairly experienced Expert. The Cross-examiner did confront him with some of the views of Major Jerrard Berrard but the witness gave answers with full confidence and stated that he had studied his work. He admitted that he had no record of similarity except as given in Exh.

69. P. W. 24/A but denied the suggestion that it was only in Court, for the first time, that he was interpreting the points of similarity. He then stated that be had an office copy of the photograph and had marked the points of similarity on that copy and that those points were marked by him immediately after the photographs were taken. He, however, admitted that in the photograph, half of the test empty is slightly higher to the crime empty. But in the next answer, he categorically stated that all the signs, i.e., (1) to (6) above are infallible factors. There is a note in his cross- examination by the learned trial Judge to the following effect:- "Sometime was spent in asking the witness as to how many points of similarity are essential when an expert can be definite in his opinion. The witness avoids to answer the question directly and started showing the different kinds of similarity."

70. This circumstance has been noticed by the learned trial Judge as something detracting from the credibility of the witness. We are sorry to comment that we do not agree with the assessment by the learned trial Judge. 'The question put to the witness and the answer that he wanted to give have not at all been understood by the learned trial Judge. When an expert witness is asked a question as to how much similarity is sufficient for a definite opinion and he starts answering by giving the kinds of similarity, the witness is fully justified in giving the type of answer indicated above and the fact that he paused for a while before answering such a hypothetical question is also very natural.

71. It was elicited in the cross-examination of this witness that the sealed parcels were received and opened by Saeed Gul P. W., the Trainee S. I. And also that the latter tested the crime empties with the test empty and gave his opinion in writing. It is then that the witness made a very significant statement, (on a question put in cross-examination) and that is "I was then directed by the Director to again check up. The writing on Exh. P. W. 24/A is mine and denotes my observation". He admitted that the photo-micrograph was prepared by Saeed Gul P. W., and we have already noted that the proof about that photograph has been furnished by Saeed Gul P. W. Himself. According to Sarwar P.

72. W., the photograph is, by the standards of the Laboratory, a good photograph in spite of the fact that two parts of the two empties are not in one line. He again categorically stated that in points of similarity shown by him, there could be no chance of a mistake. He admitted that a weapon produces same type of mark on the percussion cap on each bullet used although depth can vary.

73. And then he stated that the depth in the test empty is deeper to the crime empties and also mentioned about the difference of location of the depth in the two crime empties and in the test empty. The test empties, according to this witness, were also prepared by Saeed Gul P. W. This fact has been admitted by Saeed Gul P. W. Also. But it does not make any difference. So far as the two points of difference admitted by Sarwar P. W. And noticed above are concerned, they do not detract from the authenticity of the opinion based on the points of similarity mentioned in the examination-in-chief of the witness and his uncontroverted assertions that his opinion was infallible. The two differences pointed out can be the result of various factors including that of the nature of the powder and the normal variations in the make of cartridges. Looked at from whatever angle, the statements made by these Expert witnesses are straightforward and free from any embroidery or embellishment. We have rather noticed that in respect of the spent bullets recovered from the spot, the opinion expressed by these witnesses supports the view that they were not out to falsely support the police in this case. No opinion could be given about those bullets because they had been found to have been mutilated and were lacking in sufficient identifiable data. The defence did not challenge the facts deposed to by Saeed Gul P. W. About the receipt of the articles, their identity, the preparation of the test empties and the photograph prepared by, him. On the above material, he gave his opinion and on the same material the other witness gave his opinion. Therefore, disagreeing with the learned trial Judge on the question of assessm ent of this evidence, we hold that the two crime empties (Exh. P. 6/1-2) recovered from the spot were proved to have been fired from the revolver (Exh. P. 13)1 which was recovered during the investigation at the instance of. Riaz appellant. Therefore, this is another corroboratory circum-) stance against him.

13. The recovery from the house of Riaz appellant has already been discussed in connection with the revolver. According to the Sub-Inspector, shirt (Exh. P. 14) and dhoti (Exh. P. 15) were blood- stained. The recovery memo. Is Exh. P. T./5. Both the articles have been found on chemical examination to be stained with human blood. These are wearing apparels and it is in evidence that the culprits lifted and loaded the dead body in the Tonga. Therefore, there is ample chance that whosoever participated in that occurrence, his clothes may have been blood-stained. Thus the recovery of these clothes from the house and at the instance of Riaz appellant, in the absence of any other explanation for the stains being of human blood, is another corroboratory circumstance against that appellant.

14. On the next day of the occurrence, Riaz appellant and Mumtaz accused surrendered before the Ilaqa Magistrate and made an application for the identification parade. The application is Exh. P. V.

74. They were sent to the judicial lock up and on 2nd December 1967, when a Magistrate went to the jail for con--ducting the identification parade, the aforesaid accused persons refused to join the identification parade for reasons already noted. It was after the proceedings in jail that the Sub- Inspector took them into police custody. According to the Sub-Inspector, the accused persons made an application to the Magistrate for their medical examination. They were taken to the doctor where they were examined and the medico---legal reports are Exh. P. W. 30/A and Exh. P. W.

75. 30/B. It is natural that after this examination, the interrogation must have started. And it is on the same evening that Riaz appellant led to the discovery of the dead body tied in a gunny bag and lying in a ditch near the bank of River-Ravi. The above circumstances show that apart from a most unusual coincidence, there is no basis to imagine that some persons unconnected with the case found the dead body and informed the police about that at a time when the police had obtained the custody of Riaz appellant and was interrogating him for the purpose of the discovery of the dead body. The fact that the recovery took place at a time when darkness had set in would further show that no such supposition can be made in favour of Riaz appellant without any cogent and substantial reasons.

76. Muhammad Hussain (P. W. 18), Muhammad Bashir and Muhammad Nawaz (P. W. 20) signed the recovery memo. (Exh. Y. C.) about the recovery of the dead body. Muhammad Hussain and Muhammad Nawaz who were produced as P. Ws. Resiled from their statements made during the commitment proceedings and the same were transferred to the Sessions file under section 288, Cr.

77. P. C. They had, in those statements, clearly supported the prosecution case about the recovery of the dead body at the instance of Riaz appellant. At the trial also they have not denied about the attestation by them of the recovery memo. The admissions made by them in examination-- in- chief as well as in cross-examination in favour of the appellants are clearly contrary to their depositions in the committing Court and also to the contents of the recovery memos. Which were, admittedly, attested by them. Therefore, those admissions cannot be seriously taken note of.

78. Obviously, they were made with a motive other than the desire to tell the truth. The fact that one of these witnesses is from the locality and the further fact that they have deposed at the trial in favour of Riaz appellant do not make any difference because they stand contradicted by their own previous statements. Both of these witnesses were allowed to be cross-examined by the learned Public Prosecutor. They admitted in cross-examination that they correctly made the statements before the committing Magistrate: but vaguely explained that it was at the instance of the police.

79. No details were given by them as to who, amongst many police men, had asked them to depose, as it is, before the committing Magistrate. Therefore, we attach no importance to the admissions made by these two witnesses in favour of Riaz appellant. On the contrary, the recovery of the dead body at his instance has been proved by the statement of Sub-Inspector and also by Ehsan P. W.

80. We have already noticed that the circumstances leading up to the recovery of the dead body at the instance of Riaz appellant are very natural and the conduct of investigation officer in this behalf appears to be free from any doubt. At least, nothing suspicious in this behalf has been brought out in the evidence. It is true that the recovery memo. Of the dead body has not been attested by Ehsan but his presence at the time of the recovery of the dead body is proved by independent circumstance. The Sub-Inspector has stated that not only that Ehsan P. W. Was present at the time of the recovery of the dead body but also that his name is mentioned as one of such persons (who were present) in the inquest report. His name is mentioned along with Zulfiqar A.I who was present at that time. Therefore, the absence of the name of Ehsan from the recovery memo. As an attesting witness does not make any difference. In this connection, we have also taken note of the fact that there is no justification to imagine that the police was, in any way, interested in foisting the recovery of dead-body on Riaz appellant in particular. The recovery took place after about 48 hours of the occurrence. The claim of the prosecution that it was made at the instance of Riaz appellant is not negatived by a lapse of long time after its disposal at the place from where it was discovered and the time when, in fact, it is shown to have been discovered. We are convinced that Riaz appellant did lead to the recovery of the dead body from the place alleged by the prosecution.

81. It is not such a place that Riaz would have gained knowledge about it in any usual manner. He was sent to jail on 1st December 1967. Therefore, he could not have possibly come across the dead body in any innocent manner. Thus this circum--stance also is a very strong corroboration against Riaz appellant.

82. Learned counsel for the appellants had, in this connection contended that the place of recovery of dead body is such that the villagers of Farrukhabad (the locality near the place of recovery) would have, in all probability, found it and would have informed the police; and that the police had the knowledge of the dead body before the alleged recovery. There is no material on the file to support such a supposition. The two witnesses, i.e. Muhammad Hussain (P. W. 18) and Muhammad Nawaz (P. W. 20), we have already noticed, cannot be relied upon in respect of various admissions made by them in favour of the appellants. The Sub-Inspector, on the contrary, in cross---examination has stated about the place of recovery as follows : -- "It is incorrect to suggest that village Farakhabad is only 60 yards from the place wherefrom the dead body was recovered. The distance in no way can be less than 200 yards. It is incorrect to suggest that the place wherefrom the dead body was recovered is frequented and that the villagers go there to answer the call of nature or to water their cattle. When we went to the spot wherefrom we recovered the dead body there was water in the ditch and the gunny bag could be seen as it was 2/3 inches above the water level in that ditch. The bank of the river close to this ditch would be about 20 feet high. No water flows permanently over this ditch. The bed of the river is at a little distance. I do not know where the villagers take their cattle for water."

83. The above statement about the place, particularly the gunny bag being in the water and there being a bank, 20 ft. High near the ditch, is indicative of the fact that it was not very easy for a casual passerby to have noticed the dead body. We, therefore, attach no importance to the criticism by the learned counsel.

15. Sufficient number of independent circumstances which are, of course, proved by evidence, have been indicated above which corroborate the statement made by Ehsan in respect of Riaz appellant. Therefore, we hold that the prosecution has been able to prove the case against him; and finding him guilty, we maintain his conviction under section 302, P. P. C. Nothing has been urged in respect of the sentence. We have also examined this question. There are no extenuating circumstances in favour of Riaz appellant. For the same reasons which have been discussed above, we maintain his convictions and sentences under sections 201 and 392, P. P. C. His appeal is dismissed and the sentence of death awarded to him is confirmed.

16. So far as the other accused persons are concerned, there is nothing in the evidence to provide independent corrobo--ration. It is true that a specific part has been attributed to Mushtaq appellant, in that he also fired at the deceased and was directly responsible for the murder. But it will be too dangerous to rely on the circumstance of specific part being attributed to an accused person in a case like the present one. It is not necessary to examine in any detail the cases in which it may be possible to use such a circumstance as corroboration. In this case, suffices it to say that the other accused persons are real brothers of Riaz appellant. Therefore, it will not be safe to take note of the allegation of specific part against the other brothers. Another circumstance which can be considered as a corroboratory circumstance is the recovery of a blood-stained toka (Exh. P. 10) and the blood-stained clothes at the instance of Mumtaz accused from his house. Undoubtedly a suspicion can arise that the clothes may have been besmeared with the blood stains of the deceased. It is in evidence that at the time of recovery, the toka was found wrapped in the clothes.

84. There is absolutely no evidence, not an iota of it, that the toka was used in connection with the crime in this case. And if the toka was blood-stained and it was wrapped in the clothes, the possibility cannot be excluded that the stains found on the clothes (wrapped around the toka) may have been found there because of their having come in contact with the toka. And if the blood on the toka cannot be connected with the occurrence in this case, the blood on the clothes cannot, on the same reasoning, be connected with it. Therefore, we hold that the said circumstance cannot be treated as an independent corrobo--ration against Mumtaz accused. The fact that Mumtaz accused was also attributed a part in respect of snatching the Tonga at the time of occurrence, also, is of no avail to the prosecution because of the considerations which have weighed with us in respect of the attribution of specific part to Mushtaq appellant. About Altaf, admittedly, there is not independent corroboration connecting him with the occurrence. Therefore, we hold that there is no independent corroboration of the statement of Ehsan so far as Mushtaq appellant, Mumtaz and Altaf accused persons are concerned. Thus giving them the benefit of doubt, we hold that they cannot be held to be guilty of the murder of Fateh Muhammad. On the same reasoning, none of them can be held guilty in respect of the snatching of the Tonga from Ghulam Muhammad P. W.

85. Nor in respect of the disposal of the dead body. Indeed except for Riaz appellant, there is no evidence on the file connecting any of the other accused persons with the disposal of the dead body. Therefore, we set aside the conviction of Mushtaq appellant, accept his appeal and acquit him of all the charges. The sentence of death awarded to him is not confirmed. We also hold that Mumtaz and Altaf, the acquitted accused persons, being entitled to the benefit of doubt, cannot be held guilty of charges framed against them. The appeal filed by the State and the revision filed by Zulfiqar A.I against their acquittal are dismissed. All these persons, i.e. Mushtaq appellant and Mumtaz and Altar accused shall be released forthwith, if not required to be detained in any other matter.