P L D 1954 Federal Court 84 (PLP)

AKRAM, J.--‑Fourteen persons including the two brothers who are the present appellants, Muhammad and Sher, were put upon their trial before the Sessions Judge of Jhelum, for the double murder of Ali Muhammad and Ghulam Muhammad alias Gulla, on the 2nd September, 1951, and for rioting and ‑causing disappearance of the evidence of murder. The learned Session Judge acquitted one of the accused by name Mumtaz but convicted the remaining thirteen persons for the offences charged and sentenced seven of them including appellant Muhammad to death and the remaining six including appellant Sher to transpor tation for life under sections 302/149 ; he also sentenced all these thirteen persons to three years' rigorous imprisonment under each of the sections 148 and 201/149 of the Penal Court the sentences to run concurrently. Upon appeal the High Court of Judicature at Lahore, acquitted all the appellants except the present appellants Muhammad and Sher, in whose case it set aside the conviction and the sentence under sections 201/149, but otherwise dismissed their appeal and confirmed under section 374 Cr. P. C. the sentence of death passed on the appellant Muhammad. From this judgment Muhammad and Sher preferred the present appeal after obtaining our leave. Briefly stated, the case for the prosecution was that the two deceased persons, Ali Muhammad and Ghulam Muhammad. accompanied by Ali Haider (P. W. 2) were returning from the field of cultivation belonging to Ghulam Muhammad when the fourteen accused merged out of a lane, heavily armed, and attacked Ali Muhammad and Ghulam Muhammad, with the result that Ali Muhammad died on the spot, while Ghulam Muhammad died in hospital some time later ; that thereafter they removed the dead body of Ali Muhammad and then cutting it into pieces, threw the same into the river Jhelum. P. Ws. 2 to 6 gave evidence in the case as eye‑witnesses of the actual occurrence. The motive for the order was said to be a long standing enmity between the parties. The defence of the accused was that they had been falsely implicated on account of the bitter enmity existing between them and the witnesses. Counsel for appellants pointed out to us that on account of the special features and circumstances of the case, the High Court in the course of its judgment had made the following observations :‑ " As the relations between the prosecution witnesses and Nadir and his relatives have been very bitter, it is obvious that the statements of the witnesses will have to be scrutinized very carefully so that no innocent persons get punished. In such cases, statements of interested witnesses are not accepted unless there is some corroborative evidence connecting each of the accused with the crime alleged. Of such corroboration, there is, in the present case, a complete absence , and judging the evidence by the above standard had come to the conclusion that :‑ " The number of the persons involved is so large that it is difficult to say with regard to the appellants with whom the Prose cution witnesses have enmity, that all of them had taken part in the double murder or the disposal of the body ". that it had accordingly acquitted eleven of the appellants, but bad sought to differentiate the case of the present appellants as standing on a different footing by observing :‑ " The cases of Muhammad son of Fateh Ali and his brother, Sher, however, stand on a different footing. The eye‑witnesses produced by the prosecution have no motive to falesly depose against these two appellants, who are not related to any of the other appellants and against whom the prosecution witnesses have no animus "; omitting to notice thereby that the eye‑witness P. W. 2 had expressly stated in his deposition :‑ " We have long standing enmity with the accused ................ The accused attacked us on account of the previous enmity "; and had also mentioned in his First Information Report :‑ " Nadar, accused due to this grudge having collected all the accused have committed this occurrence ; it was, therefore, urged that the evidence on the record was misapprehended by the High Court as there was clear evidence of enmity between the parties ; further that the absence of relationship with the other appellants was not a criterion for the purpose of determining the guilt of the appellants. Stress was also laid on the fact that the testimony of the eye‑witnesses against the eleven appellants was regarded as unworthy of credence and they were acquitted, and it was suggested that it was injudicious and unsafe to rely upon such evidence for the purpose of the conviction of the present appellants ; furthermore that in the absence of any evidence that besides the fourteen accused persons there were also others who took part in the crime, the‑conviction of the appellants under sections 302/149 was not sustainable in law after the order of acquittal as regards twelve of the accused had been made ; that it should also be noted that there was no finding that any specific injury was inflicted by the appellants. Upon examining the evidence as a whole by the standard adopt ed by the High Court, we are of opinion that the conviction of the present appellants on the charge of murder cannot be sustained as the existence of enmity had been clearly established by the prosecution evidence. We are further of opinion that 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 A witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance. The above are the main reasons which we now give for the setting aside of the convictions and sentences of the appellants by our order dated the 7th December, 1953. A. H. Appeal allowed.