P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Mella, Habib and Ramzan, residents of village Mochiwala, District Montgomery, were sentenced to death by an order dated the 23rd of May j 961, passed by Mirza Bashir Ahmad, the then Sessions Judge, Montgomery for the murder of Jahan Khan, a co‑villager of theirs. They have presented this appeal jointly, and the case has been referred to this Court by the learned trial Judge under section 374 of the Code of Criminal Procedure, for confirmation of the three sentences of death passed by him. The appeal and the reference for confirmation will be disposed of by this order.

2. The prosecution case against the appellants was that, in the prosecution of their common intention, they had, in the afternoon of the 5th of July 1960, caused injuries to Jahan Khan with hatchets in village Mochiwala and had thereafter run away. The motive was stated to be a dispute between the deceased and the appellants over a piece of land and its produce. First information report about the occurrence was made on the same day at 8 p.m. at Police Station Renala Khurd, which is at a distance of about 10 miles from the scene of the occur rence by Ghulam Qadir Bhatti, son of Muhammad Khan (P. W. 6), a resident of Chak No. 7/1‑A‑L, which, though in the district of Montgomery, is separated from the scene of the occurrence by about two miles. In the report it was said that besides the informant, the incident had been witnessed by Mokha, Mst. Sabiran, and Ghulam Qadir Wattu, son of Qamar Din who, like the informant, is a resident of Chak No. 7/1‑A.L., District Montgomery.

3. At the trial, the prosecution produced Ghulam Qadir Bhatti, Mokha, Mst. Sabiran and Ghulam Qadir Wattu as the 6th, 7th, 8th and 9th witness for the prosecution respectively. The depositions of all these witnesses were in accord with the first information report and with each other in all material res pects. Ghulam Qadir Bhatti (P. W. 6) stated that he was with the deceased at the time of the occurrence and had come with him to village Mochiwala from Chak No. 7/1‑A. L. to look after a piece of land which he (the witness) had taken for cul tivation in village Mochiwala and added that the three appellants caused injuries to the deceased near his house. Ghulam Qadir Wattu (P. W. 9) stated that he was a tenant of the father of Mokha (P. W. 7) in four kanals of land which was situated in Chak No. 8/1‑A. L. and that on the day of the occurrence he and Mokha (P. W. 7) were working in that field when they heard an alum and on looking in the direction from which the alarm was coming saw Jahan Khan deceased running, pursued by Mella and Habib appellants, both of whom carried hatchets. He added that as Jehan Khan was about 40 yards from his own house, Ramzan appellant came out of his own cattle-shed, armed with a hatchet, and tried to bar the way of Jehan Khan. The deceased however, ran in another direction, but was caught up soon after by the three appellants and given blows with hatchets. The statement of Mokha P. W. 7. as that of Mst. Sabran P. W. 8 was to the same general effect as those of the two Ghulam Qadirs. The prosecution also led evidence with regard to the motive which the appellants had to attack the deceased. Besides the above‑mentioned evidence, the prosecution produced evidence to the effect that when arrested on the 6th of July 1960, each of the appellants was found to be wearing a shirt and a chaddar and each of them gave information which led to the recovery of a hatchet from his house and that all these articles, i.e., the clothes and the weapons, when subjected to chemical examination, were found by the serologist to the Govern ment of Pakistan to be stained with human blood.

4. When questioned by the committing Magistrate and by the learned trial Judge to explain the prosecution evidence against them, the appellants protested innocence and ascribed the case to enmity. The enmity put forward by them as a motive for their being falsely implicated was the same as the prosecution put forward as the motive for the attack by the appellants. No evidence was produced in defence.

5. The learned trial Judge discarded the statements of Ghulam Qadir Bhatti (P. W. 6), Mokha (P. W. 7) and Ghulam Qadir Wattu (P. W. 9). However, his finding is not clear as to whether he had held that it would be unsafe to rely on their statements or that they were proved to have given false evidence, because in one part of the judgment he would appear to have said that the three witnesses had given false evidence, while in another part he would appear to nave held that it was not safe to act on their depositions. The main reason for not relying on Ghulam Qadir Bhatti (P. W. 6) and Ghulam Qadir Wattu (P. W. 9) was that they belong to another place, namely, Chak No. 7/1‑A. L. which, as already mentioned is at a distance of about two miles from the scene of the occurrence, while the main reason for not accepting the statement of Mokha (P. W. 7) was given to be that he was related to the deceased. The statement of Mst. Sabiran (P. W. 8), who is the widow of Jehan Khan deceased, was however, relied upon by the learned trial Judge and he held that that statement, taken in conjunction with the tell‑tale recoveries of clothes from the person of each of the appellants and of a weapon at the instance of each one of them, was sufficient to justify the conviction of the three appellants.

6. Learned counsel for the appellants urged that the find ings given by the learned trial Judge were contradictory, because if Ghulam Qadir Bhatti (P W. 6) Mokha (P. W. 7) and Ghulam Qadir Wattu (P. W. 9) had given false evidence and were not in fact present at the scene of the occurrence, as was held by the learned trial Judge to be‑ the case, the statement of Mst. Sabiran (P. W. 8) who, amongst other things had said that these three witnesses had seen the occurrence, should not have been relied upon because she should have been held to have been proved to have told lies with regard to a matter which could not be considered to be immaterial for the purposes of the case. It is not the law in Pakistan that if a witness is proved to have given false evidence with regard to some detail, the whole of his deposition must be held to be unreliable. It would however, depend on the circumstances of each case whether the false portion of the statement would suffice to make the entire statement of the witness unreliable for the purposes of the Court. I have already mentioned that the finding of the learned trial Judge with regard to Ghulam Qadir Bhatti (P. W. 6), Mokha (P. W. 7) and Ghulam Qadir Wattu (P. W. 9) is not clear on the point as to whether he had held that they had told lies or that it was unsafe to rely on their depositions because they could not be considered to be entirely independent. The finding of the learned trial Judge with regard to Ghulam Qadir Bhatti (P. W. 6), Mokha (P. W.7) and Ghulam Qadir Wattu (P. W. 9) would not have had any great significance for the purposes of the appeal had it not been for the fact that learned counsel for the appellants vehemently urged that the statement of Mst. Sabiran (P. W. 8) must be rejected on the ground that she had supported the false claim of those three witnesses that they had seen the occurrence, but in view of this contention of the learned counsel it appears necessary to consider whether the reasons given by the learned trial Judge for holding that these three witnesses were not reliable were cogent.

7. With regard to Mokha (P. W. 7), the main ground taken by the learned trial Judge was that the witness was closely related to Jehan Khan deceased and had been bound down along with the deceased for keeping the peace. The mere fact that a witness is related to the victim of a crime is no ground for holding that he had given false evidence though, as a matter of caution, Courts would generally require some corroboration of such a witness against an accused person if the witness happens to be related to the victim and there was some enmity between the accused and the witness or the victim. It can be said with' regard to Mokha (P. W. 7) that he was not only inimical towards the appellants but also related to the victim of the crime in relation to which he gave evidence. These facts, however, cannot suffice for giving a finding that the witness had told a lie when he deposed in Court that he had seen the appellants causing Injuries to the deceased, though, as a matter of prudence, the Court would be justified in not relying on the statement of the witness unless it were corroborated in material particulars. It should be borne in mind that the decision of the question whether or not a witness should be relied upon must depend on the circumstances of the case, and the mere fact that a witness is interested that is that he had grounds for entertaining inimical feelings against an accused person cannot by Itself be sufficient for throwing out his statement on the ground that it was unreliable. If, for example, a man, whose honesty and integrity, could not be doubted by any one, were to depose against a person against whom he may have a motive which would suffice in the case of an ordinary witness for inducing false evidence, the Court will not reject the statement of the witness on the ground that he was interested. I do not say that Mokha (P. W. 7) is proved or known to be a man of such sterling character that in spite of the fact that he can be said to be interested, his statement should be acted upon, but I do say that the things proved against him, which the learned trial Judge took into consideration when discussing his evidence, could not prove that the statement he made as a witness was necessarily false.

8. Against the veracity of Ghulam Qadir Bhatti (P. W. 6) the finding of the learned trial Judge was based mainly on the fact that it was not satisfactorily established that Jehan Khan deceased had any reason to go to Chak No. 7/1‑A.L., where the witness deposed he had gone on the previous day. Lal Khan, a brother of the deceased, who appeared as the 10th witness for the prosecution, gave evidence that Jehan Khan deceased had taken some land in Chak No. 7/1‑A. L. from Raja Maula Dad of that Chak. The learned trial Judge said that as the prosecution had not cared to establish by means of the best available evidence that Jehan Khan deceased had taken some land on lease from Raja Mania Dad, it could not be held that Ghulam Qadir Bhatti (P. W. 6) was accompanying Jehan Khan deceased at the time of the occurrence. The learned trial Judge appears to have acted in a manner which the circumstances of the case did not justify. Ghulam Qadir (P. W. 6) had appeared to give evidence about a matter which he claimed to have seen and unless called upon by the learned trial Judge to produce evidence that Jehan Khan deceased had actually taken some land in Chak No. 7/1‑A. L. it was not his duty to come armed with documents to show that he had actually taken some land in Chak No. 7/1‑A.L. on lease. The learned trial Judge appears to have overlooked that he was trying a case of murder and not one of the existence or otherwise of a lease executed by Raja Maula Dad in favour of Jehan Khan deceased. If the learned trial Judge wanted to give a finding against Ghulam Qadir on the grounds on which he has done so, he should have called upon Ghulam Qadir (P. W. 6) to produce cogent evidence with regard to the lease in favour of deceased by producing either the lease deed or the lessee, or copies of entries in some revenue records, or should himself have summoned Court witnesses. The prosecution had not been called upon to substantiate the existence of a lease stated to have been taken by the deceased from Raja E Maula Dad and, therefore, absence of evidence on that point which did not directly arise and could not be considered to be very material for the purposes of the case should not have been used against Ghulam Qadir Bhatti (P. W. 6). But, at any rate, even if what the learned Sessions Judge said about Ghulam Qadir Bhatti (P. W. 6) were correct, one fails to see how the conclusion that Ghulam Qadir Bhatti (P. W. 6) had given false evidence could be arrived at. All that could be said was that it would not be safe to rely on the evidence of the witness which would be an entirely different thing from saying that the witness had perjured himself in the witness‑box. Before the learned trial Judge evidence was led by the prosecution in the form of the statement of Muhammad Sadiq, Revenue Patwari Halqa Islamabad, who was the 6th witness for the prosecution, that Ghulam Qadir Bhatti (P. W. 6) had cultivated some rice in village Mochiwala. The learned trial Judge considered the entries in the revenue records to be unreliable, I am clear in my mind that the learned trial Judge had acted on insufficient evidence for giving this finding about the records.

9. With regard to Ghulam Qadir Wattu (P. W. 9), the learned trial Judge said that as this witness was related to Ghulam Qadir Bhatti (P. W. 6) in so far as the mother of the former is the sister of the father of the latter, no reliance could be placed on his deposition. If this view of the learned trial Judge were to be accepted, it will have to be held that soon after the occurrence, information was sent to Ghulam Qadir Bhatti (P. W. 6), who went to the police station to lodge a report and mentioned therein the name of Ghulam Qadir Wattu (P. W. 9) as one of the eye‑witnesses. If the learned trial Judge had examined this theory of his carefully, he could not but have come to the conclusion that it is not more probable than the case set up by the prosecution, namely, that besides Mst. Sabiran, whom the learned trial Judge accepted as what he termed "a genuine witness", the attack on Jehan Khan deceased was witnessed by three other persons who were mentioned in the first information report as the eye‑witnesses. Ghulam Qadir Wattu (P. W. 9), like Ghulam Qadir Bhatti (P. W. 6), stated that he had taken a piece of land in village Mochiwala, in which piece of land he had cultivated rice for his personal use. This was held by the learned trial Judge to be an assertion made simply to explain the presence of Ghulam Qadir Wattu (P. W. 9) at the hottest hour of a hot summer day in a village which is two miles removed from the one in which he resided. It is common knowledge that residents of villages In Pakistan work at hours at which it would appear that working was not possible, and, therefore, I am clear in my mind that the fact that the incident took place at about noon of a summer day would not show conclusively that the persons produced by the prosecution had not witnessed it. Another reason given by the learned trial Judge for not relying on the statement of Ghulam Qadir Wattu (P. W. 9) was that six or seven years earlier he had been convicted of an offence of theft and had for some time thereafter remained under the surveillance of the police. I am not prepared to hold that a person who had been convicted of an offence of theft or had remained under the surveill ance of the police, or has both the above‑mentioned things against him, is incapable of telling the truth. Consequently, I cannot accept as cogent the grounds on which the learned trial Judge thought fit to discard the deposition of Ghulam Qadir Watt (P. W. 9).

10. When dealing with the evidence of a witness Courts have to determine whether or not his statement should be accepted. The statement of a witness is either accepted or rejected, but if it is rejected, the reason may be that it is believed unsafe to rely on it or that the witness was proved to be a liar. The statement of a witness may not be relied upon for a number of reasons, but before a Court of law gives a finding that a witness had given false evidence, the reasons for such a finding have to be cogent. If, for example, there is evidence on the record which proves conclusively that the witness, who claims to have seen the occurrence, did not see it, the finding that the witness had perjured himself would be justified. But I am clear in my mind that a finding to that effect would be entirely unjustified when a Court comes to the conclusion that though it was not established definitely that a witness had told a lie, it would be unsafe to rely on his deposition. If this distinction between the two reasons on the score of which the statement of a witness may not be accepted by a Court are not clearly kept in view, the results may be unsatisfactory for the purposes of the administration of justice.1 The fact should not be lost sight of that if a witness is proved to have given false evidence, a case for having him tried for perjury is made out. No one can, however, say that the fact that it would be unsafe to rely on the statement of a witness would by itself be sufficient for holding that his statement was entirely false. As the finding of the learned trial Judge in this case was not clear, Le., he had not said clearly whether Ghulam Qadir Bhatti (P. W. 6), Mokha (P. W. 7) and Ghulam Qadir Wattu (P. W. 9) had given false evidence or whether it would be unsafe to rely on them, I consider it necessary to add that when a statement of a witness is discarded, a clear finding must be given whether it is being discarded on the ground that he was being held to have indulged in lies or for the reason that it was unsafe to rely on his statement. Such a finding would be of great assistance to the Courts which hear appeals or revisions against the order of the Court before whom the witness bad appeared.

11. As mentioned by me already, the finding of the learned trial Judge with regard to the evidence of Ghulam Qadir Bhatti (P. W. 6), Mokha (P. W. 7) and Ghulam Qadir Wattu (P. W. 9; was not clear in the sense that it was not possible to say whether he had held them to be perjurers or merely persons whose statements it would be unsafe to rely upon. If the finding of the learned trial Judge was that the three witnesses had given false evidence, I would say that the finding has no evidence to support. It follows, therefore, that the learned counsel for the appellants cannot succeed in having the statement of Mst. Sabiran (P. W. 8) kept out of consideration on the ground that she had with regard to their presence at the scene of the occurrence at the time when her husband was attacked, supported the claim of the three above‑mentioned witnesses that they witnessed the attack when they have been proved not to have done so, Speaking for myself, I do not find any sufficient ground for discarding the depositions of Ghulam Qadir Bhatti (P. W. 6), Mokha (P. W. 7) and Ghulam Qadir Wattu (P. W. 9), but as the learned trial Judge has not accepted their depositions, the safer course would be that those depositions should not be accepted by this Court either. I would, therefore, proceed on the assumption that the only pieces of evidence against the appellants were those on which the learned trial Judge had based their conviction.

12. Learned counsel for the appellants urged that Mst. Sabiran, being the spouse of the deceased, should not be considered to be a disinterested witness and her deposition could not be sufficient for the conviction of the appellants. It is not necessary to consider whether, in the circumstances of the present case, the statement of Mst. Sabiran would by itself have been sufficient for recording the conviction of the appellants, because her statement has other evidence to support it. This other evidence consists of the recovery of clothes stained with human blood from the person of each of the appellants and the recovery of a hatchet stained with human blood at the instance of each of them.

13. The recoveries of the above‑mentioned articles stained with human blood were deposed to by Muhammad Hussain (P. W. 11), Pir Bakhsh (P. W. 12) and Muhammad Khan, Assistant Sub- Inspector of Police (P. W. 15). The first‑named two witnesses were not residents of village Mochiwala but of a neighbouring village, and this fact was sought to be used by the learned counsel for the appellants for his contention that the recoveries were not established. Muhammad Khan (P. W. 15), who investigated the case, was not asked the reason for selecting persons of another village in preference to persons of village Mochiwala to witness the recoveries and it is obvious, therefore, that the fact that the persons who deposed about the recoveries and signed the relevant memos. did not belong to village Mochiwala can be of no avail to the appellants. The investigating officer may have had some very good reasons for selecting outsiders as witnesses of the ii recoveries and as he was not given an opportunity to explain why he chose residents of another village to be witnesses of recoveries, it would not be proper to discard the evidence of the two witnesses, namely, Muhammad Husain (P. W. 11) and Pir Bakhsh (P. W. 12) with regard to the recoveries which evidence, as already mentioned, is supported by the deposition of Muhammad Khan, Assistant Sub‑Inspector of Police (P. W. 15), whose evidence cannot be discarded on the ground urged by the learned counsel for the appellants, namely, that he was the officer who investigated the crime.

14. There is no doubt that the occurrence took place near the house of Jehan Khan deceased, nor can there be any doubt that Mst. Sabiran had told nothing but the truth when she said that at the time of the occurrence she was at her house and had an opportunity to witness the occurrence from the beginning to the end. The mere fact that she happened to be the wife of the deceased cannot prove either that Mst. Sabiran did not witnessed the occurrence or that she had named any of the appellants falsely as an assailant. The statement of Mst. Sabiran (P. W. 8), corroborated as it is by the recoveries of bloodstained clothes and bloodstained weapons, establishes beyond all reasonable doubt that it was at the hands of the three appellants that Jahan Khan received injuries which resulted in his death.

15. The doctor, who performed the post‑mortem examination on the dead body of Jehan Khan, appearing as the first witness for the prosecution at the trial, deposed that he found on the dead body the following six injuries :‑ (1) An incised wound, 6 " x 1" x 2", on the right side of head from before backwards, 3" above the right ear, completely cutting the skull bones with fracture the membranes and brain were also cut and the brain matter was coming out of the wound. The injury was grievous and caused by some sharp weapon. (2) An incised wound, 3" x " x 2", on the right temple, 1" below injury No. 1 from before backwards and slightly downwards. The underlying temporal bone was completely cut and fractured. The injury was grievous. (3) An incised wound, 5" x " x 2", on the right side of face and head from before backwards, cutting the right ear in its middle. There was complete fracture of right maxille and zygomatic arch. The injury was grievous. (4) An incised wound, 4" x 1" x 3", on the right side of neck, just below the right ear from before backwards, cutting the right lower jaw, the vessels of the neck and right side of (5) An incised wound, 3 " x 1 " x 2 ", on the back and middle of chest from above downwards, cutting and fracturing the underlying two thoracic vertebrae and the spinal cord. (6) An incised wound, 1 " x 1 ", on the lower third outer side of left arm. Of these six injuries, only one, i.e., the one shown at No. 6 above was simple in character. The manner of the assault and the number and nature of injuries caused would clearly establish not only that the three appellants had acted in concert in the prosecution of their common intention but also that their common intention was to cause the death of the victim. The conviction of the three appellants under section 302/34 of the Pakistan Penal Code was, therefore, entirely justified and is maintained. The only question left is that of the appropriate sentence. It is true that if the sentences imposed by the learned trial Judge are maintained, three human beings would lose their lives for having taken one but that is no reason for showing leniency in sentence either to all the three appellants or to any one of them. Consequently, I would, dismissing the appeal in its entirety, confirm the three sentences of death. SHAKIRULLAH, J. ‑I agree. K. B. A. Appeal dismissed.