1974 P Cr (PLP)

6. Ali Muhammad at the trial admitted that he had given a beating to Ibrahim P. W. on the question of pruning of the shisham trees. He denied that Yaqub P. W. had come to their dera to make d complaint but admitted that he had given beating to Yaqub in some other context. As to the actual occurrence he stated that he was coming out with a bag of flour on his head when he was chased by Yaqub and Khushi P. Ws., Rehmatullah deceased and Natha and Sardara who are respectively father and nephew of Khushi P. W. All of them according to him were armed with deadly weapons. Jan Muhammad appellant sad some others came to his rescue. During this incident, the deceased and other members of the complainant party and Jan Muhammad appellant received injuries. To substantiate this plea the defence applied to the A. D. M. for medical examination of the injured members of the complainant party vide application Exh. U. A. dated 21st of November 1958. This application was marked to the S. H. O. who to turn marked it to A. S. I. Muhammad Hussain who at the trial disowned say knowledge about this application. The fact, however, stands that the injury statement Exh. D. F. of Natha father of Khushi P. W. was drawn up by A. S. I. Yaqub Masih on 30th of November, 1968, and he medically examined on the same day at S p. m. The doctor found a completely healed contused wound on his head of a duration of three weeks. The record also shows that Ghulam Nabi son of Elahi Bakhsh, Sardar Muhammad son of Fazla and Khushia son of Mandhoo were examined by a doctor on 2nd of December, 1968, but he did dot find any external injury on their persons.

7. Nur Muhammad, Ghulam Muhammad, Muhammad Sharif and Rehmatullah appellants were arrested on 15th of November 1965, Ali Muhammad and Jan Muhammad were arrested on 15th of November, 1968. Ali Muhammad was examined for his injuries. The doctor after examination on 16th of November, 1968, found four abrasions around his left knee and one abrasion on the inner side of the left ankle. The duration of these injuries was stated to be about seven days. There is no record of the a fact whether Jan Muhammad was medically examined or not, but Khushi Muhammad P. W. had admitted before the Committing Magistrate that Jan Muhammad had also received injuries. Jan Muhammad asserted at the trial that he was examined for his injuries by the Jail doctor but no evidence was produced to that effect.

8. Sotis were recovered at the time of the arrest of Sharif, Rehmatullah and Ali Muhammad appellants and a Kulhari at the instance of Jan Muhammad appellant. These recoveries are inconsequential because the weapons so recovered do not indicate that they were used in the commission of the offence.

9. The post‑mortem report shows that the deceased had three contused wounds on the left parietal region and one swelling on the right parietal region. There was an abrasion measuring 1 ' x on the left parieto frontal region near injury No.

1. Muhammad Yaqub P. W. had received five injuries out of which one was a contused wound on the head, two contusion marks and one abrasion on the right knee. He had also received an incised wound measuring 1 ' x 1/6' x 1/3' on the head. All these injuries were found to be simple. Khushi Muhammad P. W. had one contused wound on the left parietal region. There was swelling on the left forearm and the back of the right ear.

10. At the trial apart from the two injured eye‑witnesses, Ghulam Muhammad (P. W. 11) and Ghulam Nabi alias Mamma (P. W. 12) also appeared to give eyewitness account. Ibrahim (P. W. 8) and Yaqub deposed to the motive part of the prosecution story.

11. Ch. Nazir Ahmad Khan argued that all the witnesses in this case were interested because Muhammad Yaqub had been given a beating by Ali Muhammad and Rehmatullah. Khushi Muhammad admitted that Jan Muhammad appellant had beaten his brother Fazal. He also pointed out to the evidence of Khushi Muhammad before the Committing. Magistrate where he admitted that Ali Muhammad appellant had moved the authorities for registration of a case under the Arms Act, against Ghulam Nabi alias Mamma. P. W. Khushi Muhammad had also admitted before the Committing Magistrate that Ghulam Nabi P. W. had abducted a girl which was got restored by Ali Muhammad appellant who also contrived to have Ghulam Nabi exiled from the village. Ghulam Muhammad P. W. claimed to have seen the occurrence when he was proceeding to the village from his lands. It was urged that he was not only a chance witness but was aligned with a party which was siding with the opponent of the cousin of the accused in an election campaign. It was the contention of the learned counsel that under the circumstances before the convictions are maintained, the Court should be certain that each one of the accused had participated in the commission of the offence.

12. The learned Sessions Judge found that there were a number of contradictions in the statements of the two injured witnesses and that natural witnesses of the occurrence who were available had not been produced. But, after analysing the prosecution evidence, and the defence plea, be came to the conclusion that all the accused had taken part in the commission of the offence.

13. The rule of law which the Courts have evolved from time to time is, that where the evidence is not unimpeachable and witnesses are hostile, the Court has to look for corroboration in order to give a verdict of guilty in respect of each accused.

14. Before dealing with the two injured eye‑witnesses, I would like to make comment on the evidence of Ghulam Muhammad and Ghulam Nabi alias Mamma (P. Ws. 11 and 1.2 respectively) Both of them were neighbours of the deceased who lived at a distance of five killers from the place of occurrence. They bad reasons to be against the accused party. Ghulam Muhammad in any case is a chance witness. He said that he was coming back from his field when he saw the occurrence. I find that his evidence is on the pattern of a usual chance witness. Ghulam Nabi alias Mamma is a neighbour of the deceased and claims to have reached the spot after hearing the alarm from a distance of five kolas. It is hard to believe that the accused waited for the commission of the offence till this witness had traversed all this distance. I am, therefore, not disposed to rely on the evidence of Ghulam Muhammad and Ghulam Nabi because of their hostility to the accused as also because of the improbability of their presence at the spot at the time of the occurrence.

15. Muhammad Yaqub claimed that the mother of the deceased was the first‑cousin of his father but he was not able to tell her name either before the Committing Magistrate or in the trial Court. He, therefore, lay a false claim to the relationship of the deceased in order to cover up the interest that he had been taking in the incidents which preceded the murder. He was given beating by the accused and his evidence cannot be accepted without corroboration. Khushi Muhammad is a Machhi by caste and has no apparent relation ship with the deceased but he has a grouse against the accused. He admitted before the Committing Magistrate that Ghulam Muhammad appellant had given a beating to his elder brother when he found him stealing sugarcane. Khushi Muhammad had admitted before the Committing Magistrate that the police was looking for his father Natha in order to have him medically examined but denied this fact at the trial. The medico‑legal report of Natha was produced at the trial. It appears to me that Khushi Muhammad and his father alongwith the deceased had come to the house of Yaqub as his sympathisers but were attacked there. His claim that he came to the spot from his house cannot be accepted for the same reasons which I have given for rejecting a similar claim by Ghulam Nabi P. W. who is a neighbour of the deceased and Khushi Muhammad. There are other contradictions in his statement. He had admitted before the Committing Magistrate that a criminal case for misappropriation of money was proceeding against him at Lahore but denied this fact at the trial. He had denied before the Committing Magistrate that anybody else was attracted to the spot along with him but stated at the trial that there were five or seven other persons. He had also admitted before the Committing Magistrate that both Jan Muhammad and Ali Muhammad had been injured, but went back on his statement at the trial.

16. Both Muhammad Yaqub and Khushi Muhammad made a calculat ed attempt at the trial to involve Jan Muhammad directly in the murder of the deceased by saying that this appellant had used the blunt side of his hatchet in giving an injury to the deceased. This was not the case of the prosecution at the very start. It would, therefore, appear that both these witnesses, apart from their animosity against the family members of the accused, have no regard for consistency or truth.

17. In my view these witnesses were also guilty of exaggeration and it: deciding this case I should be very careful against the possibility of false inculpation. In the F. I. R. Muhammad Yaqub had said that after receiving injuries at the hands of Ali Muhammad and Rehmatullah appellant, the deceased fell down and the accused (Mulziman) then gave him morel injuries. He did not specifically state that all the accused armed with dangs gave further injuries to the deceased. Similarly, Khushi Muhammad had not specifically mentioned in his police statement that all the accused who held dangs had taken part in giving injuries to the deceased. These statements read in their natural context would, therefore, indicate that the case of the prosecution at the initial sage was that only Ali Muhammad and Rehmat ullah had given blows to the deceased. The deceased in all received five injuries out of which four injuries excluding one abrasion can be said to have been inflicted with dangs. The dimensions of the abrasion indicate that he must have received this injury by friction with the hard ground. The claim of the eye‑witnesses at the trial that all persons who were holding dangs, and there were five of them, inflicted injuries on the deceased is, therefore, not correct.

18. The two injured witnesses are consistent on the point that the attack on the deceased was opened by Ali Muhammad and Rehmatullah. Ali Muhammad and Jan Muhammad have admitted their presence at the spot but it is asserted by them that the deceased and the witnesses received their injuries at the hands of Jan Muhammad who was armed with a hatchet and from other unnamed rescuers of Ali Muhammad. The presence of Ali Muhammad and Jan Muhammad at the spot is, therefore, established.

19. There is no corroboration of the participation of the other appel lants in the commission of the offence. True that the witnesses have consistently named Rehmatullah as one of the two accused persons who opened the attack, but it has to be remembered that they have a special reason to involve Rehmatullah who played prominent part in the first two incidents of the beating of Ibrahim and Muhammad Yaqub. Consistency in hostile witnesses in naming a particular accused and ascribing particular acts to him does not give rise to judicial certainty. It may indicate the zeal of the hostile witnesses to give a prominent part to a particular accused. There may be one other persona alongwith Ali Muhammad who admits his presence at the spot in a different context, but on, this record it is not possible to arrive at any conclusion with judicial certainty as to who that accused was.

20. It was pointed out that Ghulam Muhammad is an old man and i the head of his family. All his sons except one, who according to the suggestion of the defence was an imbecile, have been involved. Ghulam Muhammad had not been specifically named as having taken part in the commission of the offence. It as at the trial that Khushi Muhammad 6 named him as his assailant alongwith Sharif appellant. Yaqub P. W. however, made a different statement and said that Nur Muhammad and Sharif had given injuries to the deceased. The benefit of this contradiction in the statements of the two witnesses should go to Ghulam Muhammad.

21. The result is that I find Ali Muhammad and Jan Muhammad guilty. I give the benefit of doubt to Ghulam Muhammad, Muhammad Sharif, Rehmatullah and Nur Muhammad and set aside their convictions on all counts and the sentences awarded to them. Ghulam Muhammad is on bail. He shall be discharged of his bail bonds. The appeal on behalf of Ali Muhammad and Jan Muhammad is dismissed in view of the fact that I have found that only two appellants are guilty, their conviction and sentence tinder section .148, P. P. C. is set aside. Their convictions under sections 302/149, 307/1 49 and 323/149 are altered to those under sections 302/34, 307/34, P. P. C. and 323/34. The appeal is decided accordingly. Order Accordingly.