P L D 1971 Lahore 292 (PLP)

10. It will be seen that, apart from sharing the common intention of the other assailants, Salehoon is alleged to have actively participated in these murders by inflicting hatchet injuries on Manzoor, Mst. Fateh Bibi and Haji Haibet. In support of these allegations the prosecution has relied upon the ocular evi dence of the first informant Muhammad Moosa (P. W. 15), a neigh bour named Isa (P. W. 16), Yaqoob (P. W. 17) and Muhammad (P. W. 18). Then there is the recovery of a blood‑stained hatchet (Exh. P. 15) at the instance of Salehoon on the very next day of the incident, although on chemical examination the origin of the blood could not be ascertained as the same had disintegrated. Finally, reliance is also placed on the surrounding circumstances, namely, the community of motive, the admitted presence of Salehoon in his house at the time of the murders and his failure to make any efforts whatsoever to dissuade his sons and other relations from wiping out the family of his brother Haji Haibet.

11. In his statement under section 342, Cr. P. C. Salehoon admitted that his daughter Mst. Jannat Bibi was issueless, but stated that his deceased son‑in‑law Manzoor had never asked him about a second marriage, adding that he would have agreed to such a proposal, if approached in this behalf. In reply to all the other questions he simply denied the allegations, stating that he had been implicated due to the enmity of the prosecution witnesses. He did not produce any evidence in defence. During the course of his statement before the committing Magistrate, Salehoon had admitted that his daughter Mst. Jannat Bibi had returned to his house and his sons Muhammad Khan, Bashir and Muhammad Ashraf had sent away their wives to their parental home seven or eight months before the occurrence.

12. The main contention raised on behalf of the State is that there is no reason whatsoever for disbelieving the eye, witness account given by Muhammad Moosa (P. W. 15) and Isa (P. W. 16), whose evidence is clearly sufficient to warrant the conviction of Salehoon without any further corroboration. It is submitted that they are equally related to both the parties and had no motive to falsely implicate Salehoon who is admittedly an elderly person of about 70 years of age. It is next contended that even if any corroboration was required, it was available in the recovery of the blood‑stained hatchet and the other surrounding circumstances appearing on the record, which establish beyond reasonable doubt that Salehoon was very much a party to the crime.

13. Before entering upon the merits of the case I would like to deal with the preliminary question touching the duty and powers of the third Judge acting under section 429 of the Criminal Procedure Code. It is submitted by Ch. Fazal Elahi, the learned counsel for the respondent Salehoon, that in the event of one of the Judges of the Division Bench forming an opinion favourable to the accused the third Judge should lean in favour of acquittal as a matter of prudence, especially when the difference of opinion has arisen in an appeal against acquittal. In support of this proposition the learned counsel has placed reliance on Re: Narsiah and others (A I R 1959 Andh. Pra. 313) which, in turn, appears to be based on Empress v. Debt Singh (1886 A W N 275) and Khetri Bewa v. The State (A I R 1952 Orissa 37).

14. The relevant observations in the Andhra Pradesh case relied upon by the learned counsel for the respondent are:- "Under sections 378 and 429 the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion. The words 'after such hearing, if any, as he thinks fit' entitle him in appropriate cases to limit the scope of the hearing. Unless there are strong and compelling reasons to come to the conclusion that the opinion of the Judge favouring an acquittal is perverse, the golden rule to be followed by the third Judge is to give the benefit of doubt to the accused. The observance of such a rule does not amount to an abdica tion of his functions as a Judge under sections 378 and 429 of the Criminal Procedure Code."

15. Although this view derives support from the two cases mentioned above, yet it runs counter to the view taken in Empress v. Bundu (1887 A W N 125) and Re: Ravipati Sitaramayya (A I R 1953 Mad. 61). In this last mentioned case it was observed that "it is the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him for his opinion. Neither section 378 nor section 429 contemplates the dice being loaded heavily in favour of either view. The opinion expressed by some Judges, namely, that the normal disposal by a third Judge should be one of agreement with the opinion of acquittal, is not correct. 'It would be tantamount to a judgment of acquittal in practice prevailing over a judgment for conviction".

16. This question was considered at some length by A. S. Faruqui, J. in Khurdoo and others v. The State (P L D 1963 Kar. 92) and the conclusion reached was:‑ "I am, therefore, of the view that having regard to the clear provisions of the two sections of the Code, which are identical, when the case is laid before the third Judge on difference of opinion the whole case is before him, and while there is no doubt that he is bound to give due consideration to the fact that another Judge of the same Court had reached the conclusion in favour of the accused, I am not prepared to say that he cannot hold otherwise except upon a finding that that view is perverse."

17. I find myself in respectful agreement with the view taken by Faruqui, J. in the case just cited. Speaking with great respect to the learned Judge who decided the case Re: Narstan and others in the Andhra Pradesh High Court, it seems to me that there is an inherent contradiction in saying, on the one hand, that the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion; and, on the other hand, laying down the "golden rule" that he should favour the opinion of acquittal recorded by one of the differing Judges before whom the case comes to in the first instance. It is clear that such a rule would have the necessary effect of circumscribing the powers and judgment: of the third Judge in violation of the clear language of the statute. It is also further clear that such a rule would, in effect, amount to prescribing that in the event of a difference of opinion between the two Judges comprising the Court of Appeal the accused shall either be acquitted or that his acquittal shall not be interfered with in an appeal under section 417 of the Code. Such an interpretation is not warranted by the statute, and would in fact render nugatory the provisions contained in sections 378 and 429, Cr. P. C. T consider, therefore. that in the present reference I have the power, and it is my duty, to examine the whole case afresh so as to form my own opinion with regard to the guilt or innocence of the respondent Salehoon. It goes without saying that due weight has to be attached to the reasons given by the two learned Judges of the Division Bench in support of their respective opinions.

18. As the matter relates to an appeal against acquittal under section 417 of the Code of Criminal Procedure, it is appropriate at this stage to refer to the rule laid down by their Lordships of the Privy Council in Sheo Swarup and others v. King‑Emperor (A I R 1934 P C 227 (2)) a rule which still holds the field‑that "It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code, and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weaken ed by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who bad the advantage of seeing the witnesses."

19. I now turn to an examination of the evidence available on the record to connect the respondent Salehoon with the crime. As already stated, there is, in the first instance, the ocular evidence of four persons, namely, Muhammad Moosa (P. W. 15), Isa (P. W. 16), Yaqoob (P. W 17) and Muhammad (P. W. 18). The trial Court as well as the two learned Judges of the Division Bench have disbelieved Yaqoob and Muhammad. Nothing has been said before me by the learned counsel appearing for the State against this view. However, the evidence of the remaining two witnesses has been accepted throughout, and I see no reason to hold otherwise.

20. Muhammad Moosa (P. W. 15) is the person who made the first information report at Jaranwala Police Station at 9‑30 a.m. after covering a distance of eight miles. The occurrence having taken place at about 7‑00 a.m., the report was made without any avoidable delay, and all the necessary details of the crime were mentioned therein. During lengthy cross. examination nothing whatsoever has been brought out to discredit, or to show any inherent weakness in his testimony. He is a paternal cousin and next‑door neighbour of Salehoon as well as the deceased Haji Haibet. It is conceded by the learned counsel for the respondent that this man bad no motive whatsoever to falsely implicate Salehoon or the other members of his family. The only criticism made against him is that he is somewhat more closely related to the deceased Haji Haibet than to Salehoon on account of the fact that he is the son of Mst. Fateh Bibi daughter of Ismail who was a cousin of the deceased Mst. Khan Bibi. It is submitted by Ch. Fazal Elahi that this aspect of the matter has been overlooked by both the learned Judges who have dealt with this case in the first instance. I am not at all impressed by this argument for the reason that Muhammad Moosa having no motive or enmity whatsoever to falsely implicate Salehoon and his sons etc., the fact that from his mother's side he is somewhat more closely related to the murdered wife of Haji Haibet does not, in any manner, affect his credibility. It has been laid down time and again that in order to describe a witness as an interested witness one has to see not merely his relationship with one party or the other, but also the fact whether he has any motive for false implication of the accused. Moosa being more or less equally related to the parties from his paternal side, I think he has rightly been regarded as a dependable witness. He has seen the occurrence from the beginning to the end and he has ascribed a specific part to the respondent Salehoon, as to the other accused persons involved in this case.

21. More or less the same remarks apply with regard to the other eye‑witness Isa. He is also related to the parties from his paternal side, being the grandson of Daim, who was the brother of Qaim, the father of the deceased Haji Haibet and the respondent Salehoon. It was, however, submitted by the learned counsel for the respondent that here again there was closer rela tionship between this witness and the family of the deceased for the reason that Isa's mother Mariyam is the daughter of Khan, a brother of the deceased Mst. Khan Bibi. I have already observed, while discussing the evidence of Muhammad Moosa, that this relationship, by itself, is not sufficient to cast any doubt on the credibility of the witnesses for the reason that they have no motive whatsoever to falsely implicate Salehoon who is an elderly uncle to them, by relationship, from their paternal side. No inherent contradiction or weakness has been brought out on the record in the evidence of this witness as well.

22. I consider that on the basis of the ocular evidence of Muhammad Moosa and Isa, Salehoon should be convicted. The question is whether any justification is made out, in the peculiar circumstances of the case, not to accept the eye‑witness account given by these two men as regards the part played by Salehoon in the entire transaction.

23. In the first place, there is, of course, the fact that the acquittal of four of the accused persons, namely, Mansha, Umra, Yusuf and Noor Muhammad, is being maintained by both the learned Judges of the Division Bench by giving them the benefit of doubt. I have already stated that in this behalf they have modified the finding recorded by the learned trial Judge to the effect that these four persons were falsely implicated. This is, therefore, not a case where the ocular evidence is being reject ed in respect of any of the accused on the ground that they were knowingly and intentionally falsely implicated by the prosecution witnesses. In these circumstances, I am in respectful agreement with Zullab, J. that it is not necessary to insist on corroboration of the evidence given by the eye‑witnesses.

24. However, even if as a rule of precaution and safety one were to look for corroboration, it is to be found in the several circumstances proved on the record against the respondent. The first and foremost is the community of motive between Salehoon and his sons. It is clear that the respondent was aggrieved by the desire of his brother Haji Haibet and his family to arrange a second marriage for the deceased Manzoor, to the detriment of Salehoon's daughter Mst. Jannat. It is in evidence that negotia tions for setting the matter had failed, primarily owing to Haji Haibet's refusal to transfer some land to Mst. Jannat for her maintenance in the event of her husband's second marriage. A further consequence of the break‑down of negotiations between the two families was that the wives of three sons of Salehoon had gone away from their husbands. These circumstances must have clearly created bitterness between the two families, and this bitterness could not be confined merely to the three convicted sons of Salehoon. In the context of our social environment Salehoon could not have remained unaffected by all these circumstances.

25. The second motive brought out at the prosecution, namely, the immorality of the three daughters‑in‑law of Salehoon, is also one which must have affected the respondent. It has been stated in the evidence that the deceased Haji Haibet and his son Manzoor as well as his wife Mst. Khan Bibi did not stop the visits of Mst. Khan Bibi's two nephews even though protests were lodged in this behalf by the husbands of the three murdered women. The two brothers' houses being next‑door to each other and each family being fully involved in the matrimonial disputes which had unfortunately arisen between them, I cannot accept the conten tion that Salehoon was unaware of this state of affairs. I am, there fore, of the view that Salehoon must have fully shared the motives and desires of his sons in this matter.

26. The learned trial Judge has expressed the view, in para graph 72 of his judgment, that Salehoon could not have any motive to cause the deaths of his brother and his own son‑in‑law, as they were closely related to him. In expressing this opinion the learned trial Judge seems to me to have completely overlooked the fact that Salehoon being the head of his family, was fully involved in the dispute that was going on between his daughter and son‑in‑law, and the resultant dispute between his sons and their wives. If indeed the relationship between the parties was a deterrent against the commission of the murders in question, it should have equally applied to the sons of Salehoon who stand convicted of these murders. The learned trial Judge has himself accepted the allegation that the three sons of Salehoon murdered their own wives as well as their paternal uncle and his wife, and their paternal cousin Manzoor. In these circumstances, it cannot be said that Salehoon had no motive whatsoever to cause these deaths. The fact that by assisting in the murder of Manzoor, Salehoon would be widowing his own daughter is not such as could, in my view, falsify the direct ocular evidence of persons who had no motive to falsely implicate this old man. Once the entire back ground of this tragedy is kept in mind, it becomes impossible to hold that Salehoon would not be inspired by the same motives as his three sons.

27. The next circumstance, which lends support to the ocular evidence, is the fact that Salehoon's house is admittedly next‑door to that of Haji Haibet, and the intervening wall is only five feet high. It is, therefore, clear that he could not have been unaware of what was happening in and around that house, especially when it is remembered that his own three sons and sons‑in‑law etc., were participating in the crime. Both the learned Judges of the Division Bench have regarded as admissible in evidence the state ment made in cross‑examination by the investigation officer to the effect that during the course of investigation Salehoon had taken the plea that at the time of the incident he was present in his house and was reciting the Qur'an. I consider that even this earliest plea by Salehoon goes to show that he was admittedly present in the vicinity and, therefore, in the natural course of human conduct he must have intervened either to assist in the crime or to prevent his sons from going to the extent to which they did. There is no indication on the record that he moved even his little finger to dissuade his sons from murdering the entire family of his brother. When this circumstance is looked at in its proper perspective, the conclusion becomes irresistible that Salehoon was a party to the designs of his sons and must have participated in the crime as stated by the eye‑witnesses.

28. Then there is the recovery of the blood‑stained hatchet at the instance of Salehoon, even though on chemical examination the blood was found to have disintegrated. In Ghulam Rasul v. Ali Akbar and others (P L D 1965 S C 363) the learned Judges of the Supreme Court observed that the recovery of the blood‑stained hatchets and clothes, even though the blood had disintegrated, served to support the direct evidence which was accepted by the Courts below.

29. It was, however, contended by Ch. Fazal Elahi that the recovery of the blood‑stained hatchet was of a doubtful value in this case for another reason also, namely, that the hatchet was not produced voluntarily by Salehoon, but on a demand having been made by the police in this behalf. The learned counsel referred to the statement of Shah Muhammad (P. W. 13), one of the recovery witnesses, to the effect that "then the police demand ed the hatchet from Salehoon. Salehoon offered to lead the Police for recovery of hatchet". It seemed to the learned counsel that the recovery was thus forced by the police. I see no merit in this argument. The entire evidence of Shah Muhammad is couched in the words that the police demanded the hatchet from this accused and then from that accused and that these men then brought out the incriminating articles. This is only a manner of statement, and the substance is that the accused persons concerned led to the recovery of the incriminating articles. The recoveries were clearly within the meaning of section 27 of the Evidence Act.

30. As against the circumstances mentioned above, emphasis was laid by the learned defence counsel on the fact that no blood stained clothes were recovered from the person, or at the instance, of Salehoon and, therefore, it should be held that he did not attack the deceased persons with a hatchet. This circumstance was sought to be contrasted with the recovery of blood‑stained clothes from the persons of two of the convicts who had used guns and were, therefore, not as close to the deceased persons as Salehoon. The non‑recovery of blood‑stained clothes has also been made a ground of acquittal by the learned trial Judge.

31. While it is true that blood‑stained clothes have not been recovered from, or at the instance of, Salehoon, yet it 9s clear that this omission does not, In any manner, suffice to falsify the ocular evidence. Salehoon was produced before the police officer on the next day of the occurrence at 9‑00 a.m. by Lal Khan Lambar dar. Thus twenty‑four hours had elapsed between the occurrence and the arrest of Salehoon, allowing him sufficient opportunity to discard the clothes which he was wearing at the time of the incident. It is not the duty of the prosecution, in such circum stances, to show as to what happened to the clothes in question. If they had been recovered and had been found to be stained with blood, they would have provided valuable corroboration, but their non‑recovery does not, in any manner, reflect upon the truth fulness of the eye‑witness account. During the time that elapsed between the incident and the arrest of Salehoon he had ample opportunity to do away with his clothes, if they had indeed been stained with blood. I cannot, therefore, agree with the learned trial Judge that the non‑recovery of these clothes was a factor entitling Salehoon to acquittal.

32. One other factor to which attention must be drawn is the advanced age of the respondent. I have already stated that he is said to be about 70 years old. At the time he appeared before me in Court during the hearing of this appeal, he did seem to be ailing and infirm. The incident happened nearly four years ago. In the absence of positive evidence to the contrary, I am not prepared to hold, merely on the basis of speculation and conjectures, that on the 15th of October 1966 Salehoon was indeed physically unable to wield a hatchet in the manner alleged by the prosecution. One cannot help remarking that since the incident Salehoon must have suffered by remorse at the tragedy, his own implication in this case and the conviction of his three sons who have been condemned to death by the trial Court. All these factors must have resulted in deterioration of his health. I, therefore, regard it as completely unsafe to base any finding on the present state of his health and age. in the presence of unimpeachable evidence regarding his participation in the crime. It must not be forgotten that out of the fifty‑three injuries found on the six deceased persons twenty‑six had been caused by hatchets, thus showing that the prosecution story about the wielding of hatchets by a number of accused persons is fully supported by the medical evidence.

33. My conclusions may be summed up by saying that I consider the ocular evidence of Moosa and Isa to be reliable and sufficient to warrant conviction of Salehoon. To this extent therefore the learned trial Judge was in error in thinking that the case was not proved against Salehoon. The mere fact that four of the accused persons stand acquitted by being given the benefit of doubt did not mean that the oral evidence could not be acted upon, as against Salehoon, in the absence of corroboration. The learned trial Judge was clearly misled in taking such a view. Further, even if corroboration was to be looked for, it was available in the surrounding circumstances of the case, namely, the community of motive between Salehoon and his sons, the presence of Salehoon in the vicinity at the time of the commission of the crime, and the recovery of a blood‑stained hatchet at his instance even though the origin of the blood could not be ascertained due to disintegration. The negative circumstances urged on behalf of Salehoon, namely, his old age and physical infirmity and the non‑recovery of blood‑stained clothes, are merely in the nature of speculative conjectures which cannot be allowed to nullify the effect of the direct evidence of witnesses, who are more or less equally related to the . parties and who had no motive whatsoever to falsely implicate this elderly man of 70 years of age. Being relations and neighbours they were the natural witnesses of the crime.

34. For these reasons I would accept the State appeal, set aside the acquittal of Salehoon and convict him under section 302 read with section 34, Pakistan Penal Code, for the murders of Haji Haibet, his son, his wife and his three daughters. In view of the old age of the respondent and the expectancy of life entertained by him owing to his acquittal at the trial, I would sentence him to transportation for life of each count, to run concurrently. He is on bail and shall be arrested to undergo this sentence. S. G. D./S. A. H. Acquittal set aside.