1969 PLP 786 (SCMR)

S. A. RAHMAN, J.‑This is an appeal by Special leave by Khuda Yar from a judgment of the High Court of West Pakistan. The learned Judges confirmed his conviction for the murder of one Sajwara and the sentence of death awarded to him by the trial Judge. At the same time, an appeal by the State, challenging the acquittal of Khan, Basara and Gahra, by the trial Judge in the same case, was dismissed. According to the prosecution story, on the 6th of September 1957, at about sun‑set time, Sajwara deceased and his nephew, Khan (P. W. 6), were returning from their well, known as Chah Darbarwala, to their houses in the village, carrying milk‑pots on their heads. As they approached the outskirts of the village, close to the house of Amir butcher, the four accused are said to have come up, and after throwing a challenge to Sajwara, proceeded to attack him. Gahra carried a lathi, while the other three were armed with chhavis. Sajwara threw his milk pot on the ground and took to his heels. He was pursued by Khan, Basara and Khuda Yar, who are all sons of Gahra, and was overtaken at some distance. Gahra gave two or three stick blows to Khan, the companion of the deceased, but Khan who followed in the footsteps of Sajwara. He tried to intervene and save his uncle Sajwara from the attack. In the process, he was hit with the blunt side of his weapon, by Kbuda Yar, on the head Khan ran to the village, raising an alarm. He met Fazil (P. W. 7), brother of Sajwara deceased, outside the village and told him what was happening. Both then came towards the spot and from a distance, saw Sajwara being given the last blow by Khuda Yar with his weapon. Sajwara was lying on the ground. Dara, Sarwar and Said P. Ws., who happened to be passing, also arrived at the scene and saw a part of the assault on the deceased. The accused persons left Sajwara dead on the spot and escaped. The first information of the incident was conveyed to the Police Station by Fazil (P. W. 7) at 12‑5 a.m. the same night. He had travelled a distance of 14 miles on foot and lodged the report. The murder was said to have been committed as the result of a blood feud. Some ten years earlier, Shera, a brother of Sajwara deceased, was killed by Yasin and Amin, sons of Gahra, and their brother‑in‑law, Ashiq, as he was suspected of illicit sexual relations with a daughter of Gahra. The trial of the culprits ended in their acquittal. Some 21 years later Yasin, one of the acquitted accused, was murdered and this time, Sajwara deceased, his brother Fazil P. W., and two others were prosecuted. Sajwara was acquitted, while Fazil and the two other co‑accused were sentenced to three years' rigorous imprisonment each. It was suggested that Sajwara's murder was a link in this chain of vendetta. The medical evidence established that the deceased had sustained as many as ten incised wounds, two of which were sufficient in the ordinary course of nature to cause death, two others being grievous in nature. Death, according to the doctor, must have been instantaneous on the receipt of these injuries. Khan P. W. was also found to bear, on medical examination, four injuries caused with a blunt weapon. One of these was a contused wound on the left side of the forehead, 1" above the eyebrow. All his injuries were simple in character. Three chhavis were said to have been surrendered to the investigating officer by Khuda Yar, Khan and Basara accused, respectively. A shirt was taken possession of by the police from the person of Khuda Yar. The chhavi of Khuda Yar and his shirt, were proved to have been stained with human blood, by expert evidence. The other two chhavis were evidently free from such stains. The prosecution story was supported at the trial by Khan. Fazil, Chakar, Dara, Sarwar and Said P. Ws. The trial Judge held that Dara, Sarwar and Said P. Ws. had probably not seen the occurrence at all. He, however, relied on the evidence of Khan and Fazil coupled with the recovery of a blood‑stained chhavi and a blood stained shirt from Khuda Yar and convicted him. There being no confirmatory circumstantial evidence available against the other accused, the learned Judge gave them the benefit of the doubt and acquitted them. In the High Court judgment, it was observed that the reasons given by Dara, Sarwar and Said for their presence at the spot at the material time were not entirely unconvincing. As however all three. of them deposed to the arrival of Khan and Fazil P. Ws. near the spot prior to the departure of the accused there from (a circumstance which was criticised and improbable) the learned Judges did not consider it safe to accept the claim of these three P. Ws. to being eye‑witnesses of the incident. With regard to Khan P. W. the learned Judges had not the slightest doubt that he had witnessts the assault on the deceased and had been injured in the same transaction which led to Sajwara's death. In respect of Fazil, their opinion seems to have been that it was unlikely for this witness to have arrived in time near the site of occurrence, to see any part of the attack on the deceased. In view of the longstanding enmity between the parties, the learned Judges, zts a rule of caution, insisted on independent corroboration of the oral testimony before deciding on the question of the guilt of any of the accused. This corroboration they found in the recovery of the blood‑stained chhavi and the shirt against Khuda Yar and, therefore, his conviction and sentence were upheld. In agreement with the trial Court, the benefit of the doubt was extended to the other three accused, whose acquittal had been challenged by an appeal. Mr. Mahmud Ali, who appeared for the appellant before us, suggested that Khan was not really an eye‑Witness of the occurrence, but that the injuries on his person had been fabricated, after the murder, in order to establish his bona fides as an eye‑witness. In support of his argument, the learned counsel referred to the fact that in the F. 1. R. given by Fazil, the accused Khan was said to have been armed with a spear, but while giving evidence in Court, the witnesses changed this weapon into a chhavi to make their testimony consistent with the medical evidence. It was this accused who had given the first blow to the deceased in the abdomen and felled him to the ground according to the prosecution case. The F. 1. R. was said to have been based on what Khan P. W. had communicated to Fazil. Secondly, it was pointed out that Khan had merely simple injuries caused with a blunt weapon on his person as contrasted with the incised wounds on the person of the deceased. This, according to the learned counsel gave an indication that Khan did not receive his injuries at the hands of the same persons who were responsible for the death of the deceased. Thirdly, it was contended that the F. 1. R. had been delayed and this gave enough time to the p. Ws. to concoct a story and fabricate the injuries on the person of Khan P. W. With respect to the first contention raised by the learned counsel, it is significant that the suggestion was not even put to Khan in the witness‑box that he had told Fazil that Khan accused carried a spear. Fazil himself, when questioned on the point, made varying statements and tried to create the impression that he was not quite certain 1s to what Khan lead said to him in this regard. The learned Judges of the High Court have also observed in this connection that the possibility of the nature of the weapon carried by one accused being mistaken in the twilight; by Khan and the other witnesses could not be excluded. Be that as it may, the material on the record is quite sufficient to contradict the story of Khan as told in Court. The second point based on the nature of injuries suffered by Khan has also not much substance. Khan had never been involved in any previous incident between the parties. He was no doubt a nephew of the deceased, but he had not personally given any cause for offence to the accused party. If, therefore, his intervention in the interest of Sajwara merely entailed three or four injuries with the lathi carried by Gahra and with the handle of another weapon carried by one of the accused, in order to deter him from interference, the account cannot be said to be unnatural one. The main target of the attack was Sajwara and the accused persons apparently confined their attention mainly to him. It is also noteworthy that in the cross‑examination of Khan, the genuineness of his injuries ‑was never challenged. Indeed it was suggested to him that he and the deceased were set upon while coming from their well after it had grown dark, by some unspecified persons. The defence case, therefore, was that Khan was certainly accompanying the deceased at the relevant time. The criticism that the first report was delayed also appears lo be devoid of force. The incident is said to have taken place at about sun‑set time. The sun set that day at 6‑23 p.m. Fazil deposed that he left for the police station at about steeled which may be roughly equated with about 8 p.m. by which ‑time it must have grown quite dark. He covered a distance of 14 miles on foot. If, therefore, the F. I. R. was recorded at the Police Station at 5 minutes past midnight, it cannot be said that there was any undue delay in contacting the police ‑authorities. The recovery of a broken pitcher from near the site of ‑the murder, by the A. S. I., Rana Abdur Rahman (P. W. 13), on the morning following the night of the occurrence, was a very important circumstance bearing out the account given by Khan P. W. Moreover, the number and nature of injuries on the person of Sajwara pointed to more than one assailant being involved in the incident. Prima facie, therefore, the version given by Khan bore the impress of truth. The recovery of the bloodstained hatchet and the shirt from the appellant rests on the evidence given by Dara (P. W. 10) and .the A. S. I. Rana Abdur Rahman (P. W. 13). Mr. Mahmud Ali attacked the evidence of Dara on the ground that he had been disbelieved by the trial Judge in his role of an eye‑witnesses. It may be mentioned that the High Court has not excluded him from the category of eye‑witnesses, although they preferred not to reply on his testimony without corroboration. No foundation was laid in the cross‑examination of Dara or of Rana Abdur Rahman for casting doubt on the genuineness of the recoveries in question. The Courts below were, therefore, justified in passing them into service for resolving; any doubts that might have arisen in their minds concerning the complicity of Khuda Yar. The appellant denied the recoveries attributed to him when,: questioned in the Courts below. He put forward the version, that in fact a fight had taken place between Sajwara and Khan and some other persons on one side and four men on the other, who did not include any of the accused persons. It was, suggested by him that the real culprits were let off by the complainants party on receipt of Rs. 8,000 and the accused falsely substituted for them. No attempt was, however, made to adduce any evidence in support of this allegation. The prosecution case thus remained unrebutted by any credible evidence produced in defence. The allegation is inherently improbable and fails to carry conviction. After carefully going through the evidence on record, we find no ground for interference with the orders of the Courts below. The appreciation of evidence by them appears to have erred, if at all, on the side of caution in so far even Gahra who was alleged by Khan to be one of his own assailants, was acquitted and the benefits of the doubt was moreover extended to two of his sons. We understand that even Khud Yar's sentence has been commuted to one of transportation of life in the recent general amnesty ordered by Government. The conviction of the appellant is plainly right and we dismiss his appeal. Appeal dismissed.