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Criminal Appeal No. 39 of 1967, decided on 10th July 1970.

S. 32‑Dying declaration-- Murder‑All eye‑witnesses present in hospital when dying declara tion was being recorded‑Possibility that deceased was tutored by them could not be ruled out.

Ss. 302 & 325-- Murder‑Parties inimically bent towards each other; dying declaration tutored and statements of eve‑witnesses found exaggerat ed‑Benefit of doubt given to some accused but others convicted under S. 325/149, P. P. C. on ground that some prosecution witnesses bearing injuries on their persons assigned specific part to these accused. (Sajjad Ahmed, J. contra).

In the present case it was found that the complainant and the accused parties were inimically bent towards each other. The dying declaration of the deceased was also found to be tutored. The High Court, in circumstances, gave benefit of doubt and acquitted all accused. On appeal against acquittal the Supreme Court agreed with the High Court that the dying declaration was not reliable and that there was no love lost between the complainant party and the accused. The Supreme Court, therefore, maintained the acquittal of a number of accused but as regards others their Lordships observed:

"There is no satisfactory reason to acquit the other respon dents. It is true that the injured persons are related inter se and are on inimical terms with the accused party but that by itself is no reason to discard their evidence. We are inclined to hold that the prosecution story as a whole is false one. There may be some exaggeration in the statements of the eye‑witnesses but their statement that they were attacked and beaten by the respondents in front of the house of Muhammad Hussain should not have been lightly ignored. The occurrence also took place at the place from where the blood‑stained earth was taken. The mere fact that the blood was found disintegrated does not prove that the occurrence did not take place at that place. There is sufficient evidence on the record to show that Sadiq respondent No. 3, Rashid son of Sardar Khan respondent No. 4, Dewan Ali respondent No. 5, Allah Rakha respondent No. 6, Muhammad Khan son of Sardar Khan respondent No. 7, Barkat Ali respondent No. 8, Farman Ali respondent No. 9 and Bashir son of Farman Ali respondent No. 10 have inflicted injuries to the above mentioned eye witnesses. The Sessions Judge, on this evidence, was justified in convicting these persons under section 325/149, P. P. C. and sentencing them to seven years' rigorous imprisonment each. He was further justified in convicting them under section 148, P. P. C. to three years' rigorous imprisonment each. The High Court has not separately considered the cases of these respondents and have simple absolved them of the charges made against them on the ground that Muhammad Hussain has been falsely roped in. The reason given by the High Court does not apply to these accused persons. We would, therefore, restore the order of the Sessions Judge about the conviction of these persons under the above mentioned provision of law with this modification that the sentences under sections 325/149 and 148, P. P. C. will run concurrently."

His Lordship Sajjad Ahmed, J., while sharing the doubt expressed by the majority regarding complicity of accused in the crime, found it "extremely difficult to differentiate" case of rest of accused from that of acquitted accused. His Lordship's view was:

"When a criminal case presents a difficulty such as this, where on sifting of the evidence of witnesses it becomes doubtful in regard to some of the accused person, but on some consideration not so with regard to others, its acceptance against those others must be supported by material corroboration from independent sources indicating that any or all of them had participated in the crime. It is not safe to rely on the same evidence against some of the accused persons which has been rejected against their co -accused in the absence of any confirmatory circumstance to prove the guilt of the former. In the present case, there is no reliable confirmatory evidence whatsoever against any of the respondents and we are made to depend on the verbal statements of witnesses of proved hostility which, as discovered, are a mixture of truth, untruth and half truth, thus compelling the necessity to divide their integrity for convicting some of the accused and acquitting the others, which, will be an arbitrary exercise in the situation as created. The mere fact that specific parts have been ascribed by the witnesses to the respon dents 3 to 10 hardly adds to the veracity of these witnesses. In fact, it exposes their effort to pin‑point the accused whom they want to be convicted. When a number of assailants surround their victims and start giving blows indiscriminately, it is not easy at all for the victims to know with certainty as to who caused which injury to whom. The other difficulty which I feel in not having been able to agree with my learned brother in disturbing the acquittal of respondents 3 to 10 is that this is an appeal against an acquittal order recorded by the High Court. It may be that the judgment of the High Court is not wholly satisfactory but it cannot, at the same time, be said to be fanciful or arbitrary or devoid of reasons altogether to warrant interference by this Court. It is not normally the function of this Court to engage itself in a fresh appraisement of the evidence unless some evidence is found to have been excluded from consideration or has been misinterpreted by tearing it out of its text or context. The doubts expressed by the Judges of the High Court in the prosecution evidence in this case inhere in the nature and character of the evidence itself and I, therefore, feel reluctant to reverse their conclusion."

Muhammad Sher v. The Crown P L D 1944 F C 83 ref.

Dilawar Mahmood, Assistant Advocate‑General West Pakistan Mohammad Jaffar, Advocate with him) instructed by Ijaz Ali, Advocate‑on‑Record (on 28‑5‑70) for Appellants.

Mian Hamiduddin, Advocate Supreme Court instructed by Abdul Karim, Advocate‑on‑Record for Respondents.

Dates of hearing : 27th and 28th May 1970.

‑This appeal by special leave is directed against the judgment of the High Court of West Pakistan, Lahore, in Criminal Appeal No. 220 of 1964 (Murder Reference No. 134 of 1964), dated the 7th October 1965. By this judgment, the High Court gave benefit of doubt to the respondents and acquitted them of all the charges.

Respondents Muhammad Hussain, Muhammad Bashir, Sadiq, Rashid, Dewan Ali, Allah Rakha, Muhammad Khan, Barkat Ali, Forman and Bashir son of Farman Ali Bhatti were tried along with Muhammad Alam, Qurban Ali Ashiq and Barkat Ali son of Ahmad Khan, on the allegation that they, on the 23rd December 1962 at about degarwela, in the area of Mouza Mahlu Khokhar, formed an unlawful assembly and in prosecution of the common object of that assembly, committed the murder of Muhammad Khan and caused grievous and simple injuries to Muhammad Hussain, Khushi Muhammad son of Sultan, Abdullah, Mian Khan and Sardar Khan P. Ws. The learned Additional Sessions Judge, Gujrat, by judgment dated the 21st March 1964, acquitted Muhammad Alam, Qurban, Ashiq and Barkat Ali son of Ahmad Khan of all the charges. Muhammad Hussain was found liable for the murder of Muhammad Khan and sentenced to death under section 302, P. P. C. The remaining nine respondents were convicted under section 325/149, P. P. C. and sentenced to seven years' rigorous imprisonment each. All the respondents were convicted under section 148, P. P. C. and sentenced to three years' rigorous im prisonment each, This sentence was ordered to run consecutively with that awarded under section 325/149, P. P. C. The sentence awarded to Muhammad Hussain was to come into operation in case his death sentence was not confirmed by the High Court.

The respondents filed appeal against their conviction and a Division Bench of the West Pakistan High Court, Lahore, in the above mentioned Criminal Appeal and confirmation case, gave them benefit of doubt and acquitted them of all the charges. A revision petition filed against the acquittal of the four persons was also dismissed by the said order.

Muhammad Latif son of Dewan Ali obtained leave for appeal on the 6th April 1966 in Criminal Petition for Special Leave to Appeal No. 193 of 1965. Leave was granted to the appellant as it was found that there are certain features in the case which require re‑examination of the evidence on which the prosecution case was based.

The prosecution case is that on the 23rd December 1962 at about degarwela, Muhammad Hussain P. W. 14, Khushi Muhammad son of Sultan P. W. 15, Abdullah P. W. 16 and Sardar Khan P. W. 18, along with Muhammad Khan deceased were coming from the bailna (sugarcane crushing machine) of Muhammad Hussain situated in his land towards the north of the village. The bailna jointly belonged to Muhammad Hussain p. W. and Muhammad Khan deceased. Khushi Muhammad P. W. had also his bailna in the same vicinity. They had hardly covered a distance of 1 furlongs and when they reached near the village in front of the house of Muhammad Hussain son of Lal, all the fourteen accused came out from inside the kotha and attacked them. Out of them, accused Muhammad Hussain, Muhammad Alam, Barkat Ali son of Ahmad Khan, Bashir son of Muhammad Hussain and Ashiq were armed with spears. Allah Rakha, Farman Ali and his son Bashir and Dewan Ali were armed with hatchets. Muhammad Khan and his brother Barkat Ali, Rashid and Sadiq and Qurban Ali were armed with sow. They attacked the complainant party, Allah Rakha inflicted an injury on Abdullah P. W. with kulhari hitting him on his left foot. Dewan Ali caused an injury with the blunt side of kulhari to Sardar Khan P. W. Khushi Muhammad P. W. was given blows by Farman Ali and Allah Rakha with hatchets. Muhammad Hussain respondent gave a blow with spear to Muhammad Khan deceased hitting him in the abdomen. Barkat Ali respondent gave an injury to Muhammad Hussain P. W. 14 on his head with sota. Bashir son of Muhammad Hussain respondent caused an injury to Mian Khan P. W. Muhammad Khan respondent also gave a stick blow. The occurrence was witnessed by Muhammad Hussain, Khushi Muhammad, Abdullah and Sardar Khan who were given beating by the respondents. Mian Khan P. W. had also reached the spot on hearing the alarm and he was also be-laboured by the respondents. Khushi Muhammad P. W. 19 and Allah Ditta P. W. 20, who‑also reached the scene of crime rescued the complainant party. Muhammad Khan deceased had become unconscious. He was placed on a cot and carried to his house. From there he was taken to Gujrat City Hospital Muhammad Hussain P. W. proceeded to Police Station, Jalalpur Jattan situated at a distance of 9 miles from the scene of crime and lodged the First Information Report, Exh. P. A. at 6‑00 p. m.

Dr. Abdul Qayum Malik P. W. 1, examined Muhammad Khan deceased on the 23rd December 1962 and found four incised wounds on his person. Injury No. 1 was an incised wound 1" x 1/3" with omentum on the right side of the nevel, 1 " above lateral hit. The wound was like a slit. Second injury was an incised wound, 1 " x 1 " x 3, cutting the back muscles on the right side of the limber spine. The third and fourth injuries were simple and caused on the left middle finger on the first phalynz on the front side and on the front of the tip of the left thumb.

On the 24th December 1962, Ch. Imtiaz Ahmad P. W. 4, Magistrate, recorded the dying declaration, Exh. P. C./3, of the deceased at 7‑25 a.m. The account given in the dying declara tion about the occurrence was almost the same as is the First Information Report. Muhammad Khan succumbed to his injuries in the Hospital on the 27th December 1962.

Mian Khan P. W. 17, Sardar Khan P. W. 18, Abdullah P. W. 16, Muhammad Hussain P. W. 14, were examined by the doctor and injuries were found on their persons. Blood‑stained earth was also taken into possession from the places and made into a sealed parcel vide Memos. Exhs. P. C. and P. D. Out of the respondents, Bashir was arrested on the 25th December 1962. He led the Police to his house and got recovered spear, Exh. P. 3. The Serelogist's report shows that the blood on the spear could not be determined due to disintegration. Sadiq res pondent and Qurban Ali produced lathis which were taken into possession by the Sub‑Inspector. Ashiq also produced the spear, Exh. P. 7, which was taken into possession and made into a sealed parcel vide Memo. Exh. P. J.

The prosecution case was supported by Muhammad Hussain P. W. 14, Khushi Muhammad P. W. 15, Abdullah P. W. 16, Mian Khan P. W. 17 and Sardar Khan P. W. 18. All of them stated that the respondents and the persons acquitted by the Sessions Judge, had caused injuries on their persons. They further stated chat Muhammad Hussain respondent No. 1 had inflicted injuries on the person of Muhammad Khan deceased by a spear which hit him in the abdomen and resulted in his death. They also gave detailed account as to the part played by each of the respondents. Khushi Muhammad son of Muhammad Ali, P. W. 19 and Allah Ditta P. W. 17 also deposed that on hearing the alarm they reached the scene and saw the occurrence. But their evidence has been disbelieved by the Sessions Judge on the ground that they were chance witnesses.

The learned Sessions Judge has believed the statement of Muhammad Hussain P. W. 14, Khushi Muhammad P. W. 15, Abdullah P. W. 16, Mian Khan P. W. 17 and Sardar Khan P. W. 18 as they were injured persons. But the learned Judges of the High Court have discarded their evidence on the following observation

"As already stated, the parties were on inimical terms with each other. No independent evidence was produced in this case, Muhammad Hussain son of Ahmad Khan, who has been assigned the major role of having inflicted injury with a karchhi on the abdomen of the deceased, is aged 70 years. This Muhammad Hussain recently defeated his rival Karam Dad, brother of Muhammad Hussain P. W. 14, in the Basic Democracies Elections. It is difficult to believe that Muhammad Hussain who is an old man, caused an injury with a karchhi to Muhammad Khan deceased, whereas others, who were closely related and were armed with karchh1s and hatchets stood as idle spectators. It is apparent that he has been selected because he defeated his rival candidate in the Election."

The learned Judges of the High Court also discarded the dying declaration, Exh. P. C/3 on the ground that Mian Khan, Sardar Khan, Khushi Muhammad and Abdullah P. Ws. were all present during the night between 23rd and 24th December 1962, in the Hospital where the deceased was lying in an injured con dition. They were of the opinion that all these witnesses who were inter se related had prompted the deceased to implicate as many person as possible. They further disbelieved the prosecu tion case on the ground that the allegation that the occurrence bad taken place in front of the house of Muhammad Hussain son of Lal, was not proved by any independent evidence. According to them, the origin of the blood on the earth said to have been taken from the spot at two places could not be determined due to disintegration.

Mr. Dilawar Muhammad, Assistant Advocate‑General, has urged before us that the eye‑witnesses' account should not have been disbelieved because they were injured persons and are not expected to implicate those persons who had nothing to do with the crime. He further contended that the dying declaration should have been accepted as there was no reliable evidence to show that the deceased was tutored before he made it. It will, however, be noticed that the complainant‑party and the respondents have been at logger heads and there were number of cases pending in Court against each other. Both the learned Sessions Judge and the High Court have observed that they were on inimical terms with each other and there was no love lost between them. According to the prosecution, about 7/8 months prior to the occurrence in dispute, Mst. Sughra Bibi, daughter of Dewan Ali, sister of Mian Khan P. W. 17 had been abducted by Rafiq, brother of Ashiq respondent. She was restored to her parents after sometime. It is also alleged that after her return, Muhammad Hussain respondent, along with his brother Muhammad Alam and four others, gave beating to Gul Muhammad and Khushi Muhammad who are nephews of Dewan Ali, father of abducted girl. They were hauled up under section 325/452, P. P. C. Muhammad Khan deceased was a prosecution witness in that case. It is alleged that Muhammad Hussain respondent No. 1 and his companions had asked Muhammad Khan deceased not to give evidence against them but he refused to do so. It is also alleged that after that Muhammad Khan deceased had applied for the cancellation of bail of Muhammad Hussain and his brother Muhammad Alam and this was resented by Muhammad Hussain respondent. This case was pending before a Magistrate when the present occurrence took place. There was a case under section 107/151, Cr. P. C. and the parties had been bound down under these provisions of law on two occasions, namely, on the 28th June 1962 and on the 18th July 1962. There is also evidence that in the Basic Democracies Election, the brother of Muhammad Hussain P. W. 14 was rival candidate of Muhammad Hussain respondent who was declared as successful in the Election. In these circum stances, the High Court was perfectly justified in observing that the evidence of the prosecution should have been considered with caution.

In my opinion, the observation of the High Court that the respondents Muhammad Hussain and Muhammad Bashir who are father and son have been roped in and a major role has been assigned to them because Muhammad Hussain happened to be the head of the family of the respondent‑party appears to be well founded. Muhammad Hussain is aged 70 years and the possibility that he has been implicated in the case because he defeated Karam Dad in the Basic Democracies Election and was head of the family of the respondent‑party cannot be ruled out. Similarly, his son might have been roped in for the same reason. I am, therefore, satisfied that the High Court was perfectly justified in acquitting these two persons on charges under sec tions 302 and 325/149, P. P. C. Their conviction under sec tion 148, P. P. C. was also rightly set aside. I am also not inclined to place reliance on the dying declaration of the deceased. As has been pointed out, all the eye‑witnesses were present on the night of 23rd and 24th December 1962 in the Hospital when the dying declaration of the deceased was recorded. Therefore, the possibility that the deceased was tutored by these persons cannot be ruled out. It may be that on account of tutoring, the major role of the occurrence in dispute was placed on Muhammad Hussain.

I am, however, of the opinion that there is no satisfactory reason to acquit the other respondents. It is true that the injured persons are related inter se and are on inimical terms with the accused‑party but that by itself is no reason to discard their evidence. I am not inclined to hold that the prosecution story as a whole is false one. In my opinion, there may be some exaggeration in the statements of the eye‑witnesses but their statement that they were attacked and beaten by the respondents in front of the house of Muhammad Hussain should not have been lightly ignored. The occurrence also took place at the place from where the blood‑stained earth was taken. The mere fact that the blood was found disintegrated does not prove that the occurrence did not take place at that place. The presence of the eye -witnesses on the spot cannot be doubted. According to Khushi Mohammad P. W. 15, Allah Rakha respondent gave a kulhari blow to Abdullah P. W. on the left foot. Dewan Ali gave a hatchet blow from the blunt side to Sardar Khan. Farman Ali gave a Kulhari below to Khushi Muhammad on his left hand. Allah Rakha also gave a hatchet below to him on his band. Bashir son of Farman Ali also gave a hatchet blow on his hand. Barkat Ali son of Murad gave a sofa below to Muhammad Hussain P. W. 14 on the head. Bashir son of Farman Ali gave a Khulhari blow to Mian Khan P. W. This blow fractured his leg.

According to Abdullah P. W. 16. Allah Rakha accused gave a hatchet blow to him on the foot. Barkat Ali accused son of Murad also gave him sofa blow on the head. Dewan Ali gave a hatchet blow from the blunt side to Sardar Khan on the bead. Barkat Ali son of Murad gave a sofa blow to Muhammad Hussain P. W. 14 on the head. Farman accused son of Murad gave a hatchet blow to Khushi Muhammad on the hand. Bashir accused son of Farman Ali gave a hatchet blow to Mian Khan P. W.

According to Sardar Khan, Allah Rakha accused gave a kulhari blow on the left foot. Dewan Ali accused gave a hatchet blow from the blunt side to him on the head. Farman accused gave kulhari blow to Khushi Muhammad P. W. Barkat Ali son of Murad gave a sofa blow to Muhammad Hussain on the head. Bashir son of Farman also gave a sofa blow to Mian Khan. Sadiq also gave a sofa blow on this witness on the back.

According to Mian Khan on his arrival at the spot, Bashir son of Farman Ali gave a kulhari blow on his left hand. Rashid gave him a dang blow on his head when he fell down.

Thus there is sufficient evidence on the record to show that Sadiq respondent No. 3. Rashid son of Sardar Khan respondents No. 4, Dewan Ali respondent No. 5, Allah Rakha respondent No. 6, Muhammad Khan son of Sardar Khan respondent No. 7 Barkat Ali respondent No. 8 Farman Ali respondent No. 9 and Bashir son of Farman Ali respondent No. 10 have inflicted injuries to the above mentioned eye‑witnesses. In my opinion, the learned Sessions Judge, on this evidence, was justified in con victing these persons under section 325/149, P. P. C, and sen tencing them to seven years' rigorous imprisonment each. He was further justified in convicting them under section 148, P. P. C. to three years' rigorous imprisonment each. The High Court has not separately considered the cases of these respondents and have simply absolved them of the charges made against them on the ground that Muhammad Hussain has been falsely roped in. The reason given by the High Court does not apply to these accused persons. I would, therefore, restore the order of the learned Sessions Judge about the conviction of these persons under the above mentioned provision of law with this modification that the sentences under sections 325/149 and 148, P. P. C. will run concurrently.

In the result, I would accept the appeal against respondents Nos. 3 to 10 and dismiss the appeal against Muhammad Hussain and Muhammad Bashir respondents Nos. 1 and 2. .

‑I agree.

‑I am persuaded to share the doubt expressed by my learned brother Wahiduddin, J. regarding the complicity in this crime of Muhammad Hussain, respondent, who has made principally responsible by the prosecution for the murder of Muhammad Khan, deceased, on the allegation that he gave him a spear blow in the abdomen. The motive for his implication is definitely more pungent as he is the head of the family of the accused persons and had defeated his rival from the complainant‑party in a recent contest for election to the basic democracies. The same is my reaction in regard to the guilt of his son Bashir respondent who has also been included as a member of the unlawful assembly, and who, like his father, has been acquitted by my learned brother on a benefit of doubt. But this doubt, which relates to the principal charge and the principal culprit and his son, has prevaded my mind to travel further, casting a cloud of suspicion on the entire prosecution case, to a point where I find it extremely difficult to differentiate the case of respondents 3 to 10 whom my learned brother has been pleased to convict. As held by him, the ocular evidence in the case is interested and hostile and one has to be on guard in accepting it. It is true that some of the prosecution witnesses, namely, Khushi Muhammad, Abdullah, Sardar Khan, Mian Khan and Muhammad Hussain bear marks of injuries on their persons to denote their presence in this occurrence. But the question which confronts one in this case is, that after the prosecution has been found to have spread its not very widely naming 14 culprits to begin with four of whom were acquitted by the trial Judge and the rest by the High Court, by extending to them the benefit of doubt and my learned brother has also confirmed that doubt with regard to the two of the latter lot, where is the guarantee that so far as the remaining respondents are concerned, the same prosecution witnesses in speaking about them have adhered to the whole truth without exaggaration as to their number or their roles. The dying declaration of Muhammad Khan deceased has been doubted by my learned brother on the suspicion that these very witnesses who were present in the hospital with the deceased, may have possibly tutored him. Their zeal to support the prosecution case against all the accused persons is thus apparent and could not have been subject to any restraint by any regard for truth in the making of their own statements. It may be that some out of the respondents and the acquitted accused did participate in this crime, but how many and who is any body's guess.

When a criminal case presents a difficulty such as this, where on sifting of the evidence of witnesses it becomes doubtful in regard to some of the accused persons but on some consideration not so with regard to others, its acceptance against those others must be supported by material corroboration from independent sources indicating that any or all of them had participated in the crime, the reason, is, as held by this Court in the case of Muhammad Sher v. The Crown (P L D 1944 F C 83), that it is not safe to rely on the same evidence against some of the accused persons which has been rejected against their co‑accused in the absence of any confirmatory circumstance to prove the guilt of the former. In the present case, there is no reliable confirmatory evidence whatsoever against any one of the respondents and we are made to depend on the verbal statements of witnesses of proved hostility which, as discovered, are a mixture of truth, untruth and half truth, thus compelling the necessity to divide their integrity for convicting some of the accused and acquitting the others, which, to my mind will be an arbitrary exercise in the situation as created. The mere fact that specific parts have been ascribed by the witnesses to the respondents 3 to 10 hardly adds to the veracity of these witnesses. In fact, it exposes their effort to pin‑point the accused whom they want to be convicted. When a number of assailants surround their victims and start giving blows indiscriminately, it is not easy at all for the victims to know with certainty as to who caused which injury to whom. The other difficulty which I feel in not having been able to agree with my learned brother in disturbing the acquittal of respond ents 3 to 10 is that this is an appeal against an acquittal order recorded by the High Court. It may be that the judgment of the High Court. It may be that the judgment of the High Court is not wholly satisfactory but it cannot, at the same time, be said to be fanciful or arbitrary or devoid of reasons altogether to warrant interference by this Court. It is not normally the function of this Court to engage itself in a fresh appraisement of the evidence unless some evidence is found to have been excluded from consideration or has been misinterpreted by tearing it out of its text or context. The doubts expressed by the learned Judges of the High Court in the prosecution evidence in this case inhere in the nature and character of the evidence itself and I, therefore, feel reluctant to reverse their conclusion.

I consider that in the circumstances of this case as depicted above, the case of respondents 3 to 10 cannot be treated with a different year stick from the one applied to respondents Muhammad Hussain and his son Bashir, whom my learned brother has been pleased to acquit. It may be that on appraisal of the evidence, another view of the case is also possible different from the one which has been adopted by the High Court, but that by itself does not provide a justification for this Court to reverse the acquittal of the respondents, as recorded by the High Court.

In the light of this thinking, I have no option but to extend the benefit of doubt to all the respondents, and dismiss this appeal in its entirety.

In accordance with the view of the majority, we accept this appeal against respondents Nos. 3 to 10 and dismiss the appeal against Muhammad Hussain and Muhammad Bashir respondents Nos. 1 and 2.

K. B. A. Appeal partly accepted.

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