1969 PLP 875 (SCMR)

The acquittal of the six co‑accused, as already observed, appears to have been due not so much to disbelieving the prosecution witnesses, as to the extreme caution exercised by the learned Judges in seeking for corroboration of the fact that the appellant was present at the incident, just to be on the safe side. in view of tendency in certain places to rope in the innocent along with the guilty. The Judges ultimately remarked in the case "it cannot, however, be said with cer tainty that the assailants were five or more in number." Next, it was argued that after setting aside the convic tion under section 302/149, the conviction of the appellant under section 302 alone was bad in law, but it was observed‑ "The first five injuries were stated by the doctor to be individually fatal and there can be no manner of doubt that the person or persons who caused those injuries intend ed to kill the victim. As Jahangir appellan' is proved to have taken part in the fatal assault on Muhammad Yar deceased, he was, in our view, rightly convicted of murder and we, therefore, uphold his conviction on that charge." I do not think there is any ground for our interference with the decision of the courts below. I dismiss the appeal. SHAHABUDDIN, J.‑I agree that the appeal be dismissed. I should however like to add some observations of my own. The version of the prosecution, briefly stated, was that on the morning of 10th March 1952 at about sunrise in Hadali when deceased Muhammad Yar was going past the baithak of one Jamadar Nur Muhammad, an uncle of the appellant, the appellant and the acquitted six accused came out of that baithak and inflicted on Muhammad Yar serious injuries with hatchets, as a result of which he died on the spot, and that the appellant fired a pistol twice to scare away those who were witnessing the outrage. There were in all 17 injuries on Muhammad Yar of which five were indi vidually fatal. Three of these fatal injuries were on the head and the other two on the neck. Rest of the injuries were abrasions, contusions and minor incised wounds. Dost Muhammad (P. W. 2), Muhammad Khan (P. W. 3) and Rab Nawaz (P. W. 9) deposed to the details of the occurrence and P. W. 2 gave the First Information Report at the police station. The evidence of P. W. 2 and Sub‑Inspector Riaz Ahmad (P. W . 12) who came to the spot with P. W. 2 was that on their way from the police station they met the appellant coming with a pistol and blood‑stained hatchet, that seeing him P. W . 2 drew the attention of the Sub‑Inspector who asked the appellant to stop, arrested him and seized from him the pistol and the hatchet. The motive for the murder was said to be that the deceased had adopted his brother's daughter Mst. Sarwar Khatun whom the brother of the appellant abducted to Rawalpindi, that the deceased went there and brought her back and though the appellant lodged a complaint before the police and the Magistrate no action was taken and that therefore he came from Rawalpindi to Hadali and gathered the other six accused who were all inter‑related and also related to the appellant and committed the murder to take revenge. The defence of the acquitted accused seas that they were innocent and had been implicated due to enmity, but the appellant set up a plea of self d'‑fence and adduced evidence. His version as disclosed from the statement recorded from him at the trial under section 342, Cr. P. C. as well as the evidence adduced for the defence was to the following effect. D. W. 1, Ghazni Khan, brother of the appellant is a Dafedar in the Army. He had been bethrothed to Mst. Sarwar Khatun and on her writing to him that her parents would not consent to the marriage and that he should there fore take her away, he came to Hadali and took her to Nowshera where he was then undergoing training and married her there. Six months later on bin transferred to Lahore he left her with the appellant at Rawalpindi where the latter was employed as a clerk. The deceased came to Rawalpindi with a relative and took away Mst. Sarwar Khatun while the appellant was absent from his house He complained to the police and then sent a petition to the District Magistrate and though a case was registered it was ultimately dropped. The appellant then received a letter from Mst. Sarwar asking him to come to Hadali and take her to Rawalpindi. In response to this the appellant came to Hadali when lie received a message from her that his murder had been planned. He therefore sought the help of his brother Muhammad Nawaz and his cousin Sher Muhammad (D. W. 4) who along with four or five others spent the night with him in the baithak referred to above. At about 4 or 5 a.m. he came out and while he was urinating a pistol shot was fired which missed him. A second shot was fired at D. W. 4 but it did not go off. Whereupon that witness went up to and hit with the hatchet the deceased who had fired the pistol. The compa nions of D. W. 4 other than the appellant also inflicted injuries on the deceased with hatchets and sotas and then fled into the jungle. No one witnessed this occurrence. The appellant, who had not participated in the attack took the pistol from the hand of the deceased when he was lying dead and then proceeded to the police station to give a report but there instead of recording his statement the police locked him up. At about 10 a.m. one S. P. Malik Rab Nawaz Khan and P. W. 2 and others came to the police to make a report and then the appellant was taken to the spot. It may be mentioned here that it is in evidence for the prose cution that Malik Rab Nawaz Khan and his brother Malik Haq Nawaz Khan who are S. Ps. in the Province of Punjab are the sons of one Nawab Ghulam Muhammad between whom and Jamadar Nur Muhammad there was a civil suit. The suggestion of the defence was that the First Information Report was drawn up under the influence of Malik Rab Nawaz Khan. The Sessions Judge rejected this suggestion but he held that it was probable that the First Information Report was recorded not at the police station but at the spot after investi gation. He was not prepared to accept the version that the appellant was arrested in the way as stated by P. W. 2 and the Sub‑Inspector. His view was that the appellant did go to the thana but his report was not recorded. The Sessions Judge however accepted the evidence of eye‑witnesses parti cularly P. Ws. 3 and 9 whom he did not regard as interested in the prosecution. He therefore convicted all the accused but sentenced them to transportation for life. The learned Judges of the High Court did not interfere with the findings of the trial Court regarding the First Information Report and the arrest of the appellant, but they took the view that it was not safe to act solely on the evi dence of the eye‑witnesses as they were interested. They observed that their evidence could be acted upon only if there was strong corroboration and as they did not find such corroboration in respect ~f the other six accused, they acquitted them giving them the benefit of doubt, but as regards the appellant they held that there w