1974 PLP 419 (SCMR)

Both the respondents were sent up for trial. The evidence against them was mainly oral and it was furnished by four persons who claimed to be eye‑witnesses, namely, Inayat Ullah, the brother of deceased (P. W. 6), Muhammad Hussain (P. W. 7), Bashir (P. W. 8) and Qasim Ali (P. W. 9), who claimed that they were sitting at that time outside the shop of the milk seller Ramzan close to the shop of Inayat Ullah. Their story was that they had come to purchase milk from Ramzan about an hour earlier but Ramzan had already gone away after closing his‑shop. They, however, kept sitting there although there were two other milk shops nearby, because, they had been told that Ramzan had gone to fetch milk. The last named three. witnesses, though not related to the deceased or Inayat Ullah, were related inter se, and it was suggested to them that they belonged to the party which opposed the respondent Shafi in the last B. D. elections. The trial Court found nothing unnatural in the conduct of these witnesses in awaiting the return of Ramzan, the milk‑seller, because "certain customers", it thought "remain associated and attached with the shop keeper so intimately that they do not like to purchase articles from any other shop keeper". Furthermore, since no enmity was alleged against them, their evidence could be accepted as reliable. The High Court, on the other hand, took the view that none of these witnesses was either independent or disinterested. According to the High Court, "there was no reason for these three P. Ws. to have stayed on there and, therefore, their presence at the spot has become doubtful." The eye‑witnesses were also found by the High Court to have con tradicted each other in material particulars both as to the time of the incident and the manner of its commission. In fact, the High Court felt that these witnesses were not there and that they were procured witnesses whose statements were recorded on the second or third day after the occur rence. Benefit of doubt was, therefore, given to the accused persons and they were acquitted of the charges levelled against them. Inayat Ullah, the brother of the deceased, who is also the person who lodged the first information report, carne up to this Court for special leave to appeal. Leave was granted to him to re‑examine the evidence in order to ascertain whether the acquittals had been based upon principles consistent with the safe dispensation of criminal justice. The principal accused in this case, namely, respondent Muhammad Shafi, has since died during the pendency of the appeal. The appeal has thus abated as against him, and it now remains to consider this appeal only so far as the respondent Muhammad Yusuf is concerned. He was at the time of the incident only a boy of 15 years, and the only part that was ascribed to him was that he exhorted his father to kill the deceased. None of the witnesses state the precise words used by him. Inayat Ullah (P. W. 6) says that he only said "mar du" and the others say that he merely "raised lalkara". Even at the time of the trial in 1967 Muhammad Shafi was described as a person of about 50 years of age and Muhammad Yusuf as about 18 or 19 years of age. In the circumstances it is difficult to appreciate how a young man could remain content by merely exhorting his old father to attack. If he was present there and had come out deliberately armed to attack Inayat Ullah and his brother then yusuf too would have participated it the attack instead of remaining behind and merely exhorting his old father. Again, it is difficult to appreciate why the blow was delivered on Ata Ullah and not on Inayat Ullah. The grudge was against Inayat Ullah for demanding payment of the outstanding amount. There is no evidence to show what part Ata Ullah took to be made the butt of the attack. The presence of the three unrelated witnesses was also, in our view, considerably doubtful. It was extremely unusual on their part to remain wasting at the shop of Ramzan, even though the shop was closed and the shop‑keeper was not present, merely in the hope of getting milk from him when he returned and that too for over an hour. Actually they never purchased any milk at all. In the circumstances, it is not possible for us to say that the High Court was wrong in taking this factor into account in assessing the evidence of these three unrelated persons. The searching cross‑examination to which they were subjected, also suggested that they were not as disinterested as they pretended to be. The place of incident was a busy market place and it is difficult to accept the story of the witnesses that at the time when the respondents came out armed to attack the deceased and his brother, no one else, apart from these three witnesses, was present. Inayat Ullah had in fact admitted before the committing Magistrate that 15 to 20 other persons were present but none of them were called. Learned counsel appearing in support of this appeal has contended that since the accused were related to the deceased and his brother and there was no previous enmity between them, they had no reason to falsely implicate their own relations. The tendency on the part of witnesses; to implicate as many of the relations, of the other side as possible cannot be overruled. In the circum stances, the implication of Muhammad Yusuf by ascribing to him only a lalkara has to be examined with great care and caution. It the respondent Muhammad Yusuf had in fact been present, we feel that he would have taken a more active part in the incident, rather than allow his father to be involved as the principal accused. The High Court was, in our view, also right in pointing out that neither the place nor the time nor the manner of the occurrence bad been correctly disclosed by the prosecution witnesses. The absence of blood‑stains at the place of the incident cannot be ignored. Even assuming that the place way a busy market place, it is not likely that persons present there would have allowed the blood stains to be obliterated by the footsteps of passers‑by. Normal precautions would have been taken to cover up the area where tee blood had stained the earth. According to Inayat Ullah, the deceased had bled profusely and, therefore, there should have been a fairly large area covered with blood, and such a large area would not have disappeared so mysteriously within a few hours. The discrepancies in the evidence of the eye‑witnesses cannot also be passed over as mere minor discrepancies. The discrepancies were not only with regard to minor details but also with regard to broad facts which could not possibly have been missed by persons who were present at the scene of the incident. It is also significant that no one in this case went to the police‑station to have the first information report recorded. The Police Officer came to the hospital after receiving the medical report regarding the admission of the injured person and there recorded the statement of Inayat Ullah. By this time Inayat Ullah bad had sufficient opportunity of discussing the matter with those who had helped him to carry the deceased to the hospital, and they were the only persons who were examined as independent eye‑witnesses in this case. These facts speak for themselves and it is unnecessary to dilate upon them. Keeping these facts in view, it is not possible for us to say that the High Court acted either perversely or unreasonably in giving the benefit of doubt to. Muhammad Yusuf who was only made vicariously liable on the basis of e the ubiquitous lalkara said to have been raised by him. We see no reason, therefore, to interfere. This appeal is, accordingly; dismissed as against the respondent Muhammad Yusuf and it is declared to have abated as against respondent Muhammad Shafi. Appeal dismissed.