P L D 1963 Supreme Court 40 (PLP)

FAZLE‑AKBAR, J.‑In this appeal by special leave there are two appellants Thoba and Shera whose convictions under section 302 read with section 34 of the Pakistan Penal Code, and sentences of death have been confirmed on appeal and reference by a Division Bench of the High Court of West Pakistan at Lahore. The case against them was that in prosecution of a blood feud they, armed with hatchet and spear, attacked Thiraj at a spot which is about 45 karams from the abadi of village Killa Asian so that he died on the spot. It was alleged that on the 25th July 1960, Thiraj alongwith his wife Mst. Shameem and brother Raja had come to Killa Asian to the house of Ahmi, uncle of Mst. Shameem to realise the price of a bullock which he had sold to him about two months before the occurrence. At about late digarwela they left Ahmi's house. Thiraj was going 20 karams ahead of Raja and Mst. Shameem when he was attacked by Shera and Thoba, who after inflicting injuries with hatchet and spear ran away. Rana, Rahmatullah and, Muhammad who were then at their betak, while going to the spot on hearing the alarm, saw these appellants running away armed with the hatchet and spear. After the alleged attack Raja went to Chiniot Police Station which is about 12 miles from the place of occurrence and lodged First Information Report at 1‑30 a.m. on 26th July 1960. The defence was that the deceased had been killed at night by some unknown persons and these appellants were falsely implicated in this case out of enmity. The prosecution case rested on the evidence of eye‑witnesses Mst. Shameem and Raja and on the evidence of Ahmi, Rana, Rahmatullah and Muhammad, who said they saw the appellants running away with spear and hatchet immediately after the occurrence. The trial Judge relying on the evidence of these witnesses convicted and sentenced the accused. The convicted persons appealed to the High Court, The learned Judges of the High Court considered it unsafe to rely on the evidence of partisan witnesses, Rana, Rahmatullah and Muhammad. They however, relied on the evidence of Raja, Mst. Shameem and Ahmi. It should be mentioned that according to the plan, there was a turn in the village path between Thiraj and the two first mentioned persons, when the attack was commenced, and that Ahmi came from his house, further back from where Raja and Mst. Shameem were, on hearing the alarm. The last named three witnesses and the deceased are closely connected inter se and are also inimical to the appellants. 7 here was also a blood feud between the deceased and these appellants. Therefore, in approaching the question of the extent to which credence can be given to the eye‑witnesses in the present case the first and foremost consideration to be borne in mind was that there might be false implication of the persons who were known to be sworn enemies of the deceased. Some 8 or 9 years back the appellant Shera' s father and uncles were prosecuted for the murder of Thiraj' s father, but they were acquitted. Further, 4 or 5 years ago Thiraj and his brother Raja were tried for the murder of the uncle of appellant Shera and in that case the appellants Shera and Thoba were the eye‑witnesses, but that case also ended in acquittal. Hence the need for caution in accepting the evidence of the partisan and interested witnesses in this case cannot be over‑emphasised. The learned Judges of the High Court in dealing with evidence of these witnesses observed :‑ "Since we have already come to the conclusion that the occurrence took place shortly before sunset, as alleged by the eye‑witnesses, this is intrinsic evidence that they are telling the truth. We think it is fair to come to the conclusion that Raja and others saw the occurrence. This is borne out from the statement of Ahman Chowkidar. This belief in our mind is further confirmed by the mention of spear as one of the weapons of offence by Raja in the first information report which he lodged without undue delay at Police Station, Chiniot, which is twelve miles from the scene of the tragedy. Had Raja not seen the actual assault on his brother, it would have been pretty difficult for him to have credited one of the assailants of Thiraj with a spear. Raja had clearly stated in the first information report that the injury near the right ear of the deceased was given by Thoba with the spear, and this part of his statement is amply corroborated by the statement of the medical witness. The deceased had a cut, , x 1/3x 1/6, on the border of the right ear in its middle. Raja could not have‑ been definite about the nature of the weapons used, unless he had actually seen them being used. Had Raja been a false witness, it would have been impossible for him to have described this particular injury to have been caused by means of a spear. In the circumstances, we are prepared to rely on the evidence of Raja, and as he says that Mst. Shameem and Ahmi were also present at the time of the occurrence, we are inclined to accept it as correct". In our opinion this mode of approach to the evidence adopted by the, learned Judges of the High Court was wholly unsuitable to the formation of a correct conclusion in a case of this character. In view of the partisan character of these witnesses, the learned judges, were, right to look for some confirmatory circumstance in support of their evidence. They found one such circumstance in the fact that the story was "borne out" by the evidence of Ahman Chowkidar. This man had gone to the dhari of one Ahmad at some 120 karams from the spot, where persons had gathered on account of one Mandu having been bitten by a snake. There he learnt that Thiraj had been murdered. When he reached the spot he found Mst. Shameem, Ahmi, Rana, Rahmatullah and Muhammad near the dead body. When Raja went to lodge a report at the Police Station, he remained to guard the dead body. This witness does not even say that when he reached the spot he was informed by any one that these appellants were responsible for the death of Thiraj. Hence the observation that the prosecution story receives support from the statement of Ahman Chowkidar has really no basis for it. The second circumstance which the learned Judges have emphasised with some repetition is that the eye‑witness Raja in the first information report said that "the injury near the right ear of the deceased was given by Thoba with a spear". The description of this injury is certainly not characteristic of a spear or any other penetrating weapon, for the depth is only one‑sixth of an inch. There were three other punctured wounds on the body, to speak of the use of a spear, and the fact of this small cut which might more probably have resulted from contract with a part of the blade of a hatchet being attributed to a spear would go against, rather than in favour of believing Raja's account. In this particular. Raja's version is not unequivocally supported by the physical facts found. The learned Judges, however, omitted to notice that though according to the prosecution many other persons came there immediately after the occurrence yet they could only examine three of them naively, Rana, Rahmatullah and Muhammad who were admittedly not on good terms with the appellants, and who were allegedly attracted to the spot from a great distance. On the other hand, it is proved that there were many persons at a nearer place, viz., the dhari of Ahmad, to enquire about Mandu' s health, but none of these people was examined in this case. True support to "bear out" the prosecution version might have come from one of these persons. As for the support afforded by the injuries, we cannot fail to observe that 13 contused wounds, three punctured wounds, a cut and multiple abrasions afford proof that the assailants dealt with Thiraj in unhurried fashion, showing no indication that they were under observation, or that they must effect an escape to avoid capture by their direct enemies. The indication is that the attack was made in the dark or at least when no one was about. Further, when only two weapons, namely a spear and a hatchet were used, and there was a long score of past injuries to settle with Thiraj, the absence of a single characteristic cut injury with a hatchet gives the lie to Raja's claim to have witnessed the attack. Far from there being any reason to use only the blunt end, there was every reason to employ the sharp‑edge with the greatest effect, especially if time was of the essence. For, it appears clearly from the evidence that Thiraj was a man of thoroughly bad character. He had been prosecuted for murder; was convicted in a dacoity case; and had been a suspect in a number of other murder cases. The defence suggestion that he was a professional murderer is not without foundation. The possibility of his having been killed at night by some unknown enemies stands out clearly, and it leads to the possibility that the two accused in this case were named either on conjecture or after some kind of private enquiry. There was a sufficiently long interval of time available before the making of the report to gather information in this way. Moreover, Raja lived with Thiraj in an abadi only some six squares = 1200 karams away, and could have quickly reached the spot on getting information. Discrepancies in the evidence of the eye‑witnesses regarding the colour of the bullock sold by the deceased to Ahmi was thought by the learned Judges not very material. It is difficult to believe that the eye‑witnesses Mst. Shameem and Raja who lived with the deceased would have made a mistake in giving the colour of the bullock, which according to them, was with Thiraj for about a year. The above discrepancies cast a doubt upon the story of the sale of the bullock and of these witnesses accompanying the deceased to Ahmi' s house for realising the price of the bullock. Thiraj may well have gone alone, on some less innocent errand. It is thus clear that the appraisement of the evidence of eye witnesses was not based upon full consideration and evaluation of all the circumstances appearing in the case. This was pre eminently a case where, in the total absence of physical circumstances to connect the two accused persons with the crime, and there being no proximate motive for the attack, the existence of a feud‑based enmity operated as strongly to explain the ''implication of the two accused persons, as it did to support the allegation of an unprovoked attack by them upon a feudal enemy. In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available, it must be supported by some strong circumstance, such as might serve to over come the inherent doubt by which such evidence is necessarily affected. We find that it is not consistent with the safe administration of justice to accept the evidence of the eye‑witnesses in this case, as by itself sufficient to prove the charge against the accused beyond reasonable doubt, and we accordingly allow this appeal and acquit the appellants. K. B. A./A. H. Appeal accepted.