TAJ MUHAMMAD Versus MUHAMMAD YUSUF

1. SALAHUDDIN AHMED, J. ‑This is an appeal by Taj Muhammad by special leave of this Court, and it is from an order of a Divisions Bench of the then High Court of West Pakistan. Lahore Seat, whereby respondents Muhammad Yusuf and Ali Muhammad were acquitted of a charge under section 302 read with section 34 of the Pakistan Penal Code.

2. Leave was granted to re‑examine the evidence in view of certain patent facts on record.

3. The two respondents are brothers. It appears that 3/4 months before the occurrence the respondents had informed P. W. Taj Muhammad, father of Muhammad Ishaque deceased, that the respondents suspected Muhammad Ishaque of having illicit intimacy with their sister and that the deceased should be stopped from coming to their house, and that if he approached the house they would murder him. The deceased was, accordingly, reprimanded by his father and relations and he was asked not to visit the house of the respondents. It may be stated here that according to the prosecution this was the motive for the incident.

4. On the 23rd of September 1965, at about 9 a. m. while the aforesaid Muhammad Ishaque left his house and was proceeding to help his uncle P. W. Ghulam Haider in harvesting his crop, he was waylaid and attacked by the respondents, each of whom was armed with a spear. Three persons namely, Ilahi Bakhsh (P. W. 15), Lal Bakhsh (P. W. 16) and Muhammad Ramaaa (P. W. 17) who were present in the vicinity of Sultan Minor in connection with their normal work, heard an alarm coming from a distance of 2 acres. They all rushed towards the spot, and each of them saw from a distance of one kanal the two accused respondents engaged in striking with spears Muhammad Ishaque (the deceased), who was lying on the slope on the bank of Sultan Minor adjoining a road. On the approach of the three witnesses the respondents escaped with their weapons. Muhammad Isbaque was found lying in a pool of blood. P. W. llahi Bakhsh went and informed P. W. Taj Muhammad, father of the deceased, about the occurrence, and returned to the scene of occurrence alongwith P. W. Tai Muhammad after having travelled a distance of about one bigha.

5. It is said that the said Muhammad Ishaque told the witnesses that he had been attacked with spears and injured by the two respondents . A first information report was lodged by P. W . Taj Muhammad, who had been accompanied by P. W. Ghulam Haider, at Police Station, Kot Samaba, District Rahimyar Khan, situated at a distance of 8 miles from the spot on the same day at 2 p. m., and it was recorded by the Station House Officer Sardar Nabi Bakhsh, Sub‑Inspector (P. W. 19). The Sub‑Inspector proceeded to the place of occurrence alongwith the complainant and Ghulam Muhammad (P. W. 9), and recovered blood‑stained earth from the bank of Sultan Minor. The two respondents were arrested on the 24th of September 1965, i. e. the following day of the occurrence at 4 p. m. from an abandoned Khola situated near their house. A blood stained shirt and a blood‑stained chaddar were recovered from the person of each of the two respondents. Each of the two respondents led to the recovery of a blood‑stained spear from his residence. All the blood‑stained articles were subsequently found to be stained with human blood. These recoveries were witnessed by Ghulam Muhammad (P. W. 9) and Bakht Ali (P. W. 10).

6. The respondents denied their guilt as well as the recoveries made from them or at their instance. They said that they had been implicated falsely because P. W. Taj Muhammad and his relatives had been forced to give up possession of certain land in favour of the father of the respondents.

7. The learned Sessions Judge, Rahimyar Khan, relied on the evidence of the three eye‑witnesses, namely, P. Ws. Ilahi Bakhsb, Lai Bakhsh and Muhammad Ramzan as corroborated by the recovery of the blood‑stained clothes from the persons of the two respondents and the two blood‑stained spears recovered at their instance as well as by the oral dying declaration of Muhammad Ishaque deceased, and convicted the two respondents under section 302 read with section 34 of the Pakistan Penal Code, and sentenced respondent Muhammad Yusuf to death and respondent Ali Muhammad to imprisonment for life. Respondent Ali Muhammad was given the lesser punishment because he was younger and in the opinion of the learned Sessions Judge had acted under the influence of his elder brother, respondent Muhammad Yusuf.

8. The learned Judges of the High Court, however, did not take into consideration the oral dying declaration in view of the medical evidence that the deceased could not have spoken after having received as many as 25 injuries. It is of advantage at this stage to say that P. W. Dr. Mueen Siddiqi, Medical Officer, Rahimyar Khan, who held the post‑mortem examination on the dead body of Muhammad Ishaque deceased on the 24th of September 1965, found that the deceased was a well‑built youngman and had sustained altogether 25 injuries, six of which were incised wounds of the following description:‑

9. "(1) An incised wound 1" x " x " on right shin.

(2) An incised wound 1" x " x " two fingers below injury No. 1.

(3) An incised wound 2" x 1' x " one finger below injury No. 2.

(4) An incised wound 2 " x 1' x " on the left shin.

(5) An incised wound 1" x " x " on the left leg.

(6) An incised wound 1" x " x " on the left shin."

10. The rest of the injuries were contusions caused on the different parts of the body three of which were grievous, and were as follows:‑

11. "Injury No. 7‑contusion 2" x 2" two inches above the left ankle fracturing the underneath bones of the left leg;

12. Injury No. 8.‑contusion 1 " x 1" on the nose, the nasal bones having been completely crushed into pieces; and

13. Injury No. 25.‑contusion 1 " x 1' on the a'adomen left hypochondium." Injuries Nos. 1 to 6 were caused by a sharp‑edged weapon, and the rest by some blunt weapon. In the opinion of the doctor death was due to shock and some haemorrhage due to rupture of the spleen and fracture of the left leg bones. In his opinion injury No. 25 individually and the rest of the injuries collectively were sufficient to cause death in the ordinary course of nature. The doctor said that injuries Nos. 7 to 25 could be caused by spears P. 7 and P. 8 if their handles had been used. In cross examination the doctor said that the edges of spears P. 7 and P. 8 were not sharp and that he did not find any penetrating and gaping wound on the dead body. He further said that injuries Nos. 1 to 6 could more probably be caused by a sharp‑edged weapon such as a hatchet, The doctor also said that after sustaining these 25 injuries the deceased possibly had shock and it was correct that after having received all these injuries and having had shock the deceased could never have spoken after having received all those 25 injuries. The doctor gave the probable time between injuries and death as half as hour in the maximum. The other contusions found on the body of the deceased were one of 6" x 5'1 on the right side of the forehead and face; one on the lateral and upper most part of the right thigh; one on right elbow; one on the lower and front part of the neck; five on the chest; one on the left shoulder; two on the buttock: one on the upper most part of the left thigh; one on the left ankle; one on the left lumber region; and one on the right scapular region. It seems to us there is hardly any injury which may be said to have affected the deceased's power of speech.

14. It is pertinent to mention here that the learned Sessions Judge had examined the two spears and found that their blades were sharp, and that by no stretch of imagination could it be said that the blades of the spears were blunt. The learned Sessions Judge was further of the opinion that there was no reason to think why injuries Nos. 1 to 6 could not have been caused by the two spears, the blades of which were sharp. These observations of the learned Sessions Judge appear to have completely gone unnoticed by the learned Judges of the High Court with the result that they failed to give due weight to the opinion of the learned Session Judge as they were required to do according to the well settled principles laid down by this Court in Noora's case (PLD 1973 SC 469). It is also obvious that if the learned Judges had carefully examined the nature of the injuries found upon the deceased and had scrutinized the evidence of the doctor in the light of the aforesaid observations of the learned Sessions Judge, they would not have put such implicit reliance upon the medical eviden as they did, and which ultimately led them to disbelieve the categoric and unchallenged evidence of the three eye‑witnesses that the respondents were armed with spears and had struck the deceased with them.

15. The learned Judges of the High Court disregarded one of the important principle governing the appreciation of evidence, and this led them to commit a serious defect in the process by which they discarded the dying statement which, according to the categorical statements of three eye‑ B witnesses, namely, P. Ws. Taj Muhammad, Qadir Bakhsh and Sachu, was made by the deceased. Nevertheless, these witnesses also said that soon after he had spoken the deceased fainted, and therefore giving due weight to the opinion of the learned Judges of the High Court we ourselves deem it prudent not to rely upon the dying statement of the deceased.

16. The learned Judges of the High Court failed to appraise the evidence of the three eye‑witnesses in the light of probabilities and omitted to give due consideration to the absence of any reason on their part to falsely implicate the respondents. The omission of the learned Judges to notice the aforesaid observations of the learned Sessions Judge in regard to the medical evidence further vitiated their approach to the ocular evidence. All the three eye‑witnesses were natural and probable persons to have witnessed the incident inasmuch as they lived near the spot and at the " relevant time were busy with their normal work near the scene of occurrence. Their presence at the spot at the relevant time has gone unchallenged. It was not put to any one of them that they did not see the occurrence. None of them is related to the deceased or the complainant party. There is no suggestion of enmity between any of them and the respondents. The witnesses denied that they gave false evidence against the respondents.

17. The evidence of these witnesses were assailed on the ground that from the site plan it appeared that they were not in a position to see the occurrence from where they were supposed to be, and that the manner of the occurrence described by them was inconsistent with the medical evidence. The site plan mentioned certain points against the names of the three eye‑witnesses. The patwari, who prepared the site plan, stated in his examination‑in‑chief that he had prepared the site plan on the asking of the police and at the pointing out of the witnesses. In cross‑exami nation he stated:

18. "Wherever I have shown the presence of the witnesses in these site plans it is from those spots that the witnesses saw the incident."

19. The site plan itself, however, does not mention that it was from those spots they had seen the incident. The patwari P. W. 6 Ali Muhammad merely relied on his memory to make the aforesaid statement in cross examination. It is true that the witnesses said that they had showed to the patwari the spot wherefrom they saw the occurrence, but they were not questioned with reference to the site plan itself although each one of them had categorically made the unchallenged statement that he had seen the occurrence from only one kanal off the spot. Again, it is true that the witnesses stated in cross‑examination about having seen all the 25/26 injuries having been given by the respondents to the deceased. The learned Sessions Judge had rightly observed that it was not expected of an eye witness to give details of each and every injury particularly when the number of the injuries was so large. The learned Sessions Judge having found! the witnesses to be independent and disinterested who had no reason whatsoever to falsely implicate any one of the respondents rightly relied . on their evidence as a whole, and the learned Judges of the High Court omitted to give due weight to such opinion of the learned Sessions Judge. In .disbelieving the three eye‑witnesses the learned Judges relied more on specula tions than on the evidence.

20. Upon an analyses it appears that the learned Judges were mainly influenced by the medical evidence and the site plan to throw enbloc the evidence of the three eye‑witnesses. We have noticed already that none of these grounds is valid. The nature of the Incised injuries particularly their size show that they could be caused by spears which had sharp :blades, and not by such a heavy weapon as a hatchet. It was hardly realised that the site plan itself is not a substantive piece of evidence which, could be used to contradict or discredit the unchallenged evidence of the three eye‑witnesses.

21. In our opinion no reasonable ground existed for the learned Judges ,to discard the evidence about the recovery of not only the blood‑stained ,clothes from the persons of the respondents, bat also of the recovery of the two blood‑stained spears at the instance of each of them. The evidence of recoveries was discarded mainly on two grounds. One. that one of the witnesses of the recoveries Ghulam Muhammad P. W. was admittedly a relation of Taj Muhammad P. W. 2, Taj Muhammad P. W. bad stated that Ali Muhammad respondents was arrested on the 23rd of ,September 1965. None of the two grounds is true. The so‑called admission does not exist. P. W. Ghulam Muhammad was not asked anything about his relationship with Taj Muhammad P. W., P. W. Taj Muhammad had only said in cross‑examination that Ghulam Muhammad 'P. W. belonged to his baradari. The evidence of the other witness of .,recovery, P. W. Bakht Ali and of the Investigation Officer in this connection was not referred to or considered at all. No reason was given as to whether evidence of these two witnesses should not be. relied on. As regards two, the said statement of Taj Muhammad P. W. had been made before the committing Magistrate which was not substantive evidence. Besides, Taj Muhammad was not a witness of the arrest of the respondents. We shall revert to their arrests hereafter.

22. Merely because of the patently erroneous view that the doctor took .about the nature of the weapons that caused the incised injuries it was not reasonable to exclude from consideration the support given to the ocular evidence by the said recoveries. If only the learned Judges had read the aforesaid observations of the learned Sessions Judge about the sharpness of the blades of the two spears they could have themselves examined the spears, which were till then available to determine whether the doctor or the learned Sessions Judge was right in regard to the fact ,that the blades of the spears were sharp or not. It is very likely that if ,the learned Judges had carefully examined the nature of the injuries found .upon the deceased and the true character of the blades of the spears they would neither have thrown over board the unchallenged ocular evidence of the independent and disinterested witnesses nor excluded from .consideration the aforesaid recoveries which lent support to the ocular ,evidence.

23. Another factor which influenced the learned Judges in disbelieving the prosecution case was that in their opinion the first information report had not been recorded at the Police Station but at the Eid Gah. The learned Judges came to this finding on the basis of a previous statement made by P. W. Ilahi Bakhsh to the effect that the statement of P. W. Taj Muhammad was recorded by the police at the Eid Gah on his arrival at 12 noon. The previous statement could only be relied upon for the purpose of. contradicting P. W. Ilahi Bakhsh but it could not be relied upon as substantive evidence to hold that in fact the statement of P. W. Taj Muhamma in the F.

1. R. was recorded by the police at the Eid Gah. The learned Judges of the High Court arrived at the said finding totally oblivious of the material evidence on the point furnished by the complainant, and the S. H. O. who recorded the first information report. Both P. W. Taj Muhammad and the S. H. O. P. W. Sardar Nabi Bakbsh said that the first information report was recorded at the Police Station. Both these witnesses said that the police came to the spot at Asar prayer time. The first information report itself shows that it was recorded at the Police Station at 2 p. m. on the 23rd of September 1965. Again, although P. W. 19 S. H. O. who recorded the first information report said that he had recorded the first information report himself, the learned Judges of the High Court held that the first information report had been recorded by the Munshi and not by the S. H. O. himself. And this the learned Judges did in spite of the fact that they had the means to compare the handwriting of the witness with the writing in the first information report in order to determine whether the S. H. O. did record the first informa tion report in his own hand.

24. Again, in regard to the date of the arrest of the two respondents, although the evidence is not only unchallenged but overwhelming that the two respondents were arrested on the 24th of September 1965, i. e., the following date of the incident, the learned Judges chose to rely on an inadmissible piece of evidence, viz, the statement of Taj Muhammad P. W. before the committing Magistrate to hold that respondent Muhammad Ali was arrested on the 23rd of September 1965, i. e. on the very day of occurrence. P. W. Taj Muhammad had made an ambiguous statement before the committing Magistrate that Ali Muhammad respondent was arrested on the first day. It may be remembered here that P. W. Taj Muhammad. never said he was present when respondent Ali Muhammad was arrested. The material witnesses on the point of arrest included P. W. 18 A. S. I. Nasiruddin who had actually effected the arrest. P. W. Nasiruddin said that the respondents were arrested on the 24th of September 1965, i. e. the following day, and the witness was not at all cross‑examined on this point. The witness is corroborated on his point by P. W. 19 S. H. O. Sardar Nabi Bakhsh who, too, was not cross‑examined on this point. Thus the erroneous finding of the learned Judges of the High Court led them to build an entire superstructure that blood had been planted on the clothes of not only one respondent but of both the respondents and that the police had fabricated false evidence against them.

25. It is, thus, seen that the learned Judges of the High Court committed serious breach of the principles that required to be observed in the matter of appraisement of evidence, and that they even suffered from misconception of facts and law while appraising the evidence, and thus they caused a failure of justice in the present case.

26. Having regard to the facts and circumstances of the case mentioned above, we agree with the appraisement of evidence as made by the learned Session Judge and disagree with that made by the learned Judges of the High Court. The incident took place in an open place, and in broad daylight, and thus was not likely to have gone unnoticed. The three eye‑witnesses, who say that they saw the incident in which the two respondents had attacked and injured the deceased with spears as a result of which he died, were natural, independent and thoroughly disinterested persons. Their evidence had not only gone unchallenged but had received ample corroboration and support from the recovery of the blood‑stained clothes from their persons as well as the recovery of the blood‑stained spears at their instance. The prosecution has also succeeded in proving the motive for the crime. The evidence of motive has gone unchallenged.

27. We, accordingly, allow the appeal and set aside the order of acquittal in respect of both the respondents and convict them both under section 302 read with section 34 of the Pakistan Penal Code.

28. There remains for us to consider the question of sentence. The occurrence took place in the year 1965, and the order of acquittal was passed in the year 1967. Today is the 11th of December 1975. The motive proved by the prosecution itself indicates that the respondents complained that the deceased bad liaison with their sister. The fact that his father and relatives in fact reprimanded the deceased showed that there might be some truth in the allegation. In these circumstances, w think that the extreme penalty of law should not be imposed upon the two respondents. In our opinion the ends of justice will sufficiently met if we sentence each of them to suffer imprisonment for life, and we order accordingly.

29. The respondents are on bail. They must surrender to their bail bonds forthwith and serve out the sentences now imposed on them. s. A. H.

30. Appeal allowed.