P L D 1957 Supreme Court (Pak (PLP)

CORNELIUS, J.‑

This case clearly falls within the principle laid down by the Federal Court of Pakistan in two recent cases. The earlier case that of Muhammad and Sher (PLD1954FC84) from which it will be sufficient to quote the following short extract:‑ "Where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of confirmatory circum stances." The convictions in the present case are for offences of simple hurt punishable under sections 323 and 324, P. P. C. but they principle enunciated above is none the less directly applicable on that account. The allegations in this case too were of a joint assault by three persons, viz. Muhammad Anwar and his sons Muhammad Akhtar and Muhammad Asghar, upon an enemy Chiragh Din, in the course of which‑ (1) Chiragh Din had a tooth knocked out as the result of a slap delivered by Muhammad Anwar; (2) Chiragh Din was then seized by Muhammad Anwar and his son Muhammad Akhtar and dragged from the spot towards their own house; (3) in the assault and dragging Muhammad Asghar also assisted; (4) in the course of the dragging, Muhammad Akhtar gave blows with a knife to Chiragh bin on his thigh ; and (5) Chiragh Din was rescued before he could be dragged into the house of his assailants. The trial Court convicted all three accused persons, whose appeal to the Sessions Court was rejected. We note here, with regret, and wish to draw the attention of the High Court to the fact that the Sessions Judge's judg ment is for the most part a verbatim copy of considerable portions of the trial Court's judgment. In our typed foolscap record, the Sessions Judge's judgment covers 9 pages. Of this matter except for 9 lines at the commencement and 18 lines at the end, the remaining 7 pages are copied, word by word, from the trial Court's judgment. In this copy, there are reproduced several paragraphs commencing with such words as the followings: "The learned counsel for the defence has laid considerable stress on the fact that etc., etc., "it is again contended by the learned counsel for the defence that etc., etc." The arguments referred to were presented before the trial Court and it surprises us to find them being represen ted as having been placed before the Sessions Court, in the very words used by the trial Court. The con tribution made by the Sessions Judge to ascertainment of facts upon appreciation of the evidence appears to be negligible. A judgment of this kind delivered by an appellate Court cannot be regarded as proper and is of doubtful validity. It does not represent an honest discharge of its duty a by the appellate Court. The case next came before a learned Single Judge of the High Court sitting in revision, who acquitted Muhammad Anwar and Muhammad Asghar, but confirmed the convictions ,and sentences of the present appellant Muhammad Akhtar upon the following basis of reasoning. The learned Judge found that the eye‑witnesses besides being partisan were discrepant in their accounts of the occurrence, and had moreover left two matters unexplained, viz., (1) that no tooth of Chiragh Din had in fact been knocked out at the spot and (2) that Muhammad Anwar had received injuries at or about the sams time when Chiragh Din was injured. He went on however to say‑-- "The picture, I can gather from the facts of this case, appears to be that an altercation and a fight took place between Chiragh Din P. W. and Muhammad Anwar accused in the course of which they gave each other first blows. Muhammad Akhtar joined in the fight later on and gave a blow with a knife to Chiragh Din P. W. The story that the accused dragged Chiragh Din to the threshold of their house appears to be exaggerated, because the occurrence took place during day time and in presence of so many residents of the mohalla who were none too friendly towards the accused. The name of Muhammad Afzal, another son of Muhammad Anwar accused, was also included in the list of Chiragh Din's assailants, but the trial Magistrate discharged him because there was no satisfactory evidence that he had joined in the fight. In my view the same applies to the case of Muhammad Asghar accused and his name was included to rope in as many members of Muhammad Anwar's family as possible. The defence version that Chiragh Din and some of his companions tried to attack Muhammad Anwar by forcing entry into their house appears to be equally exaggerated although two witnesses were examined to support it. Muhammad Anwar had himself suffered six injuries during the course of the occurrence and it cannot be safely determined whether he or Chiragh Din P. W. was the aggressor. So far as Muhammad Asghar is concerned, as mentioned above, he does not appear to have participated in the fight resulting in any injury to Chiragh Din P. W. On this view of the facts of this case, I allow the petition of Muhammad Anwar and Muhammad Asghar accused and acquit them. The petition of Muhammad Akhtar who had already been dealt with very leniently in the matter of sentence is, however, dismissed." It is clear that the prosecution evidence composed of the statements of eye‑witnesses was disbelieved against three of the four accused persons (including Muhammad Afzal who was discharged by the trial Court.) The learned Judge could not rely upon it to reach a finding as to whether, in the initial fight which he had found to have taken place, Chiragh Din or Muhammad Anwar was the aggressor. He disbelieved the story of the dragging of Chiragh Din, which he described as an "exaggeration". He thought both Muhammad Afzal and Muhammad Asghar had been falsely accused in order "to rope in as many members of Muhammad Anwar's family as possible." Yet, on the evidence of the same witnesses whose versions were found to be false or unreliable in regard to these substantial questions, the learned Judge found it possible to maintain the convictions of Muhammad Akhtar not only for R the knife injuries but also for the other hurt falling under section 323, P. P. C. There is here a clear departure from the principle enunciated in the case of Muhammad and. Sher cited above, for no confirmatory circumstance has been sown to exist which could serve to corroborate the prosecution case against Muhammad Akhtar. In a case of this kind, it is essential for the safe dispensation of justice that one or more confirmatory circumstances should exist, in order to satisfy the Court of the guilt of one or a few persons out of a large number, against whom evidence has been given which has been found to be generally defective, by reason of partisanship or otherwise. The second precedent case is that of Bhalu (P L D 1955 F C 432), where six persons had been brought to trial on charges of rioting, hurt and attempted murder. It was there observed as follows:‑‑ "We think that the learned Judge having disbelieved the evidence of‑ the prosecution witnesses on the main facts of the incident, could not have acted upon the theory of a sudden fight which was not supported by any evidence. The fact that the prosecution case was false and exaggerated in material particulars did not necessarily lead to the in ference that there must have been a sudden fight between the parties, because on the rejection of the prosecution version, the hypothesis of self‑defence still remained a possi bility. In these circumstances we feel that on the findings arrived at by the learned Judge as to the credibility of the prosecution witnesses, the proper conviction". to be made was one of acquittal and not of conviction . In the present case as well, there is a theory accepted which, taken with the doubt as to whether, in the first instance, Chiragh Din or Muhammad Anwar was the aggressor might have given rise to a plea of self‑defence in favour of Muhammad Akhtar. It is however unnecessary to press that analogy further. It is sufficiently clear that on the findings reached in the High Court, the safe dispensation of justice required that as to Muhammad Akhtar's convictions, they should not be confirmed, while those of his co‑accused were being set aside, unless there was a confirmatory circumstance of some kind to corroborate true prosecution evidence as against him. There being no such circumstance, the convictions cannot be main tained, and we hereby allow the appeal of Muhammad Akhtar and direct that he be acquitted. A.H. Appeal allowed.