1968 PLP 1261 (SCMR)

SAJJAD AHMAD, J.‑The appellant, Muhammad Hayat along with 4 others who are real brothers namely Ghulam Muhammad, Ghulam Haider, Ghulam Qadir and Akbar Ali were convicted by a section 30 Magistrate, Lyallpur, under section 307/149 (two counts) 342 (two counts) and 148 of the Pakistan Penal Code. The sentences awarded were 7 years' R. I., for each of the two counts under section 307/149, P. P. C. 3 months' R. I., on each count under section 342, P. P. C. and 6 month' R. I. under section 148, P. P. C. The sentences were ordered to run concurrently. The prosecution case was that the convicts had formed an unlawful assembly armed with deadly weapons and in prosecu tion of the common object of that assembly had committed rioting and attempted on the lives of P. Ws. Muhammad Siddiq and Ghulam Nabi and had also put them under wrongful confine ment. All the convicts preferred an appeal to the High Court which was dismissed by a learned Single Judge. The appellant alone moved an application to this Court for special leave to appeal which was granted on the 28th of January 1966, to' consider the contention raised that the conviction of the appellant was based on insufficient and biased evidence which stood uncorroborated from any other quarter. The occurrence took place at about 6‑00 p.m., on the 15th of July 1962, when P. W. Ghulam Nabi in company with his friend Muhammad Siddiq P. W., were going from their Chak No. 208/G. B., towards Basti Nurpur to collect cart‑wheel which Muhammad Siddiq P. W., had given to a carpenter for repairs. When they reached the Dhari of Ghulam Muhammad accused the appellant and his co‑accused confronted them, dragged them inside the Dhari and beat them severely. They were armed with lethal weapons‑the appellant Muhammad Hayat with a hatchet. The medical examination of Siddiq and Ghulam Nabi P. Ws. showed that both of them had sustained sharp weapon and blunt weapon injuries which included 4 grievous wounds on the person of Muhammad Siddiq and 3 on that of Ghulam Nabi. The leg of Muhammad Siddiq P. W., who was a student at the time had to be amputated because one ‑of the incised wounds which he had received on the right shin with the bone underneath fractured, became infectious. The injured P, Ws. were immediately taken to the hospital of their Chak wherefrom the Doctor in charge sent a Ruqqa to the police station on which the police contacted the injured in the hospital and registered a case on the basis of their statements on the 16th of July 1962. The motive for the attack was the longstanding enmity between Ghulam Nabi's family and both sets of the accused persons, i.e. the 4 convicted brothers mentioned above and the present appellant Muhammad Hayat. Muhammad Siddiq, P. W. is stated to be a friend of Ghulam Nabi with no blood relationship. The trial Court accepted the prosecution case on the basis of the testimony of the two injured P. Ws. i.e., Ghulam Nabi and Muhammad Siddiq and two other eye‑witnesses namely Ghulam Qadir (P. W. 3) and Sher Muhammad (P. W. 4). It also relied on the recoveries of the weapons of offence from some of the accused persons at their instance. The recovery of blood‑stained earth from the Dhari of Ghulam Muhammad accused was found to establish beyond doubt that the occurrence had taken place in the aforesaid Dhari mentioned by the prosecution: In the appeal proceedings, the learned single Judge in the High Court considered that the two eye‑witnesses, viz., Ghulam Qadir and Sher Muhammad could not be believed as they were chance witnesses. Similarly recoveries of weapons were found to be ineffective as there was no circumstantial indication existed to prove their user in the crime. The conviction and sentences of the convicts were upheld on the view that the presence of Ghulam Nabi and Muhammad Siddiq P. Ws. on the spot, who were injured could not be denied. It was further observed :- "There may have been some previous dispute between Ghulam Nabi P. W., and the appellants but there is nothing on the record to show that Muhammad Siddiq P. W., had any reason to falsely implicate the appellants and therefore there is no reason to disbelieve his testimony. The evidence of the interested witness Ghulam Nabi thus stands fully corroborated by the evidence of Muhammad Siddiq P. W., who has fully implicated the appellants." This approach to the case by the learned Single Judge in the High Court in holding the evidence of Ghulam Nabi to be interested due to his enmity with the convicts, which was non theless accepted because it was corroborated by the evidence of Muhammad Siddiq who did not have any apparent motive for falsely implicating the appellant and his co‑accused furnished the main argument to the learned counsel for the appellant for the rejection of the case against him. It was submitted that Muhammad Siddiq could not be regarded as a disinterested witness so far as the appellant was concerned. He referred us to the statement of D. W. 7 Ch. Bashir Ahmad, Deputy Collector Irrigation to show that in July 1960, Muhammad Hayat appellant had moved an application against Shah Muhammad, father of Muhammad Siddiq P. W., for obtaining irrigation water on the false pretext that it was needed for an orchard that he had reared. The witness had made inquiries as a result of that complaint but he did not state what was the ultimate outcome of that complaint. It was further argued by the learned counsel that Muhammad Hayat could not have possibly joined hands with the other 4 convicts in the commission of this crime as he was himself having strained relations with them. For this argument the learned counsel referred to Exh. D/D on record which is a report made by Muhammad Hayat appellant at the Summundari Police Station on the 11th of July 1957, accusing among others one Haider for an assault on him. It was submitted that this Haider is the one who has been convicted in this case along with the appellant. It may be said, however, that no effort was made at the trial to prove this allegation. The learned trial Judge has very carefully considered this aspect of the case and has come to the conclusion that on the appellant's own showing he had extremely strained relations with the complainant party and there was nothing unusual on his part to have joined hands with his co‑accused against a common adversary. It may be mentioned here that while the enmity of the appellant with his co‑accused was not established, it was stated by Ghulam Nabi in the course of evidence, which was not challenged by the defence that Muhammad Hayat appellant belonged to the Bradari of the other accused persons. Ghulam Nabi P. W., has charged the appellant for giving him 3 blows with hatchet on the head which he used from both sides, sharp and blunt. The injuries on Ghulam Nabi support this allegation. The testimony of P. W. Muhammad Siddiq also leaves no room for doubt about the complicity of the appellant in the crime for causing hatchet injuries to Ghulam Nabi P. W. The learned trial Judge on a careful appreciation of the evidence has found the appellant guilty along with his co‑accused and the learned Single Judge in the High Court has confirmed that finding although in our view he was not quite right in thinking that the evidence of Ghulam Nabi was unacceptable without the corroboration as supplied by the evidence of Muhammad Siddiq. The evidence of each of the injured witnesses was worthy of acceptance, on its own merits and both supplemented each other. In the absence of any indication that the appellant was falsely charged and there being no reason to discredit the testimony of the two injured eye‑witnesses namely Ghulam Nabi and Muhammad Siddiq we find no valid justification to interfere. We dismiss the appeal. Leave refused.