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Criminal Appeal No. 47 of 1959, decided on 21st October 1959.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 8th May 1959, in Criminal Appeal No. 392 of 1958 (Murder Reference No. 179 of 1958).

‑Ground‑High Court acquitted some and maintained conviction of others on same evidence‑Leave granted‑Constitution of Pakistan (1956), Art. 160.

‑High Court on same evidence acquitting some accused and maintaining convictions of others‑Supreme Court on appeal upheld order of High Court re: accused whose convictions had been maintained‑(Quaere) Order of acquittal whether improper.

‑Interested‑Statement of disinterested witness may be read as corroboration.

Abdul Majid Asghar, Senior Advocate Supreme Court (Ala Ullah Sajjad, Advocate Supreme Court, with him), instructed by Maqbool Ahmad, Attorney for Appellants.

Jamil Husain Rizvi, Advocate‑General West Pakistan (Iftikhar‑ul‑Haq Khan, Advocate Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 21st October 1959.

.‑This is a criminal appeal from a judgment of the High Court of West Pakistan at Lahore.

Six persons were convicted by the Sessions Judge, Gujranwala for the murder of Ali Ahmad, alleged to have been committed on the morning of 18th June 1957, in village Wadala in the house of Jahan Khan. On appeal the High Court acquitted Bahadur and Khushi but upheld the conviction and the death sentences of Jahan Khan, Muhammad Saleh, Muhammad Shah and Rehmat who were granted special leave by this Court to appeal, on the ground A that on the same evidence the High Court had acquitted some and maintained the convictions of others.

Ali Ahmad is said to have been murdered by the appellants because he himself had murdered one Muhammad Bashir, brother of Muhammad Shafi and brother‑in‑law of Jahan Khan appellants, and his prosecution had failed. According to the evidence, on the day of the occurrence Ali Ahmad was going with one Karam P. W. through a village street when the six accused persons of whom Muhammad Saleh was armed with a hatchet attacked him. Rahmat caught hold of him while the others started beating him with sticks and a hatchet. The victim succeeded in extricating himself from Rahmat's grip and from the shop of Fazal Muhammad butcher ran towards the shop of Fazal cobbler where he was again caught by Rahmat and beaten by the others. From there he was lifted and taken to the house of Jahan Khan where his head was practically severed with a spade by Muhammad Shah at the instance of Jahan Khan.

There were four eye‑witnesses of the occurrence who gave evidence for the prosecution. These were Karam, Nazar Muhammad. Ghulam Qadir and Fazal Muhammad butcher. Of these the first three were related to the deceased but the fourth was a completely disinterested person. The High Court took the view that despite their relationship with the deceased the evidence of the three eye‑witnesses could be accepted. Dealing with the evidence of Fazal Muhammad butcher the learned Judges said.

"The objection raised against the evidence of Fazal Muhammad Qasab, P. W. 16, also appears to us to be without any force. There is nothing on the record to show that this witness was under the influence of the complainant party. The few dis crepancies in his evidence to which we find it unnecessary to make a detailed reference, are not such which could materially affect the value of his evidence. So far as the remaining three witnesses are concerned they were all agreed on material parti culars and even if the evidence of Fazal Muhammad be ignored there would still remain on the record the testimony of the remaining witnesses whom we see no reason to doubt and whose account of the occurrence appears to us to be substantially correct."

The grounds for the acquittal of Bahadur and Khushi are to be found in the penultimate paragraph of the judgment, which is as follows: -

"The last contention raised by the learned counsel for the appellants was that considering the interested nature of the prosecution evidence, it would not be safe to uphold the con victions and sentences of the appellants, unless the oral evidence of the principal witnesses is corroborated by some independent evidence. As stated above, three of the alleged eye‑witnesses, no doubt, are relatives of the deceased, but on this ground alone, their evidence cannot be rejected as being untrustworthy. It is, in our opinion, not necessary, in the circumstances of this particular case, to look for independent corroboration of the testimony of these witnesses against all the appellants. Even assuming that such corroboration is necessary against Muhammad Shafi appellant stands out the fact that a kassi, stained with human blood, was recovered at his pointing out and against Jahan Khan is the fact that the dead body of Ali Ahmad was recovered from his house for which he did not offer any ex planation. Salehon and Rahmat appellants are tenants of Jahan Khan appellant, and are not related to the other appellants. If they had not taken part in the occurrence it is unbelievable that they would have been named by the prosecution witnesses as being the offenders. We cannot be certain about the participation of Bahadur and Khushi appellants. We do not, however, feel the slightest doubt about the guilt of the remaining four appellants and are of the opinion that they did take part in the occurrence. We are also of the opinion that these four appellants did have a common intention, within the meaning of section 34 of the Pakistan Penal Code and as two of their co‑accused are being acquitted, we consider it safe to alter their conviction to section 302, read with section 34, instead of section 302, read with section 149 of the Pakistan Penal Code."

We have had some difficulty in following this reasoning. The learned Judges assume that three of the witnesses were interested and although they expressly say that on that ground the evidence of these witnesses could not be rejected they seek to discover some corroborative evidence against each of the convicted persons. In thus approaching the case they lose sight of the fact that the fourth witness Fazal Muhammad Qasab was a completely disinterested witness and that his evidence had not been rejected in the earlier passage in the judgment. We take the view that no grounds whatsoever existed for ignoring the evidence of this witness and if his evidence was accepted there could be no question of seeking any corroboration against any of the accused persons and that if any corroboration of the testimony of the three witnesses who were related to the deceased was necessary it amply existed in the evidence of Fazal Muhammad butcher. It seems to us therefore that if the same test of judging the evidence had to be applied to all the convicted persons, Bahadur and Khushi were lucky in persuading the High Court to think that there was any distinction between their cases and those of the others whose convictions were upheld. We have examined the evidence of Fazal Muhammad butcher and counsel has said nothing, which could throw any suspicion on his testimony. He is a refugee and not entangled in any of the village factions. The occurrence took place in broad daylight almost in front of his shop and no reason whatsoever has been suggested why he should give false evidence. We therefore consider that the High Court was right in upholding the convictions of the appellants. Something may possibly be said in favour of Muhammad Saleh and Rahmat on the question of sentence, but we are unable to hold that in the circumstances of the case the capital sentence was wrongly awarded to these two appellants. It is for the Government to consider whether, not having taken part in the actual killing of the deceased, they should or should not be hanged.

A. H.

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