MUHABBAT KHAN Versus FATEH MUHAMMAD

1. MUHAMMMAD AKRAM, J .---Fateh Mohammad and Ahmad Khan respondents Nos. 1 and 2 were tried along with one Sultan for offences under sec tions 302/34 and 307/.14, P. P. C. for causing the death of Ramzan and making. . murderous assault on Muhabbat (P. W. 11), a paternal uncle of the deceased. The trial Court convicted the two respondents under section 302/34, P. P. C. and sentenced them to death. They were also convict-d under section 323,. P. P. C. for injuries caused to Muhabbat and were ordered to undergo six. months' imprisonment each on this count. the sentence of imprisonment was directed to take effect only in case death sentences against them were not confirmed by the High Court. Sultan, the co-accused, was convicted only under section 323, P. P. C. for injuries caused to Muhabbat and was sentenced to six months' rigorous imprisonment. On the 5th March, 1971, a Division Bench of the Lahore High Court at Lahore accepted the appeal of the two respondents and set aside their convictions and sentences and did not confirm their death sentences. This is an appeal, by special leave, filed by Mubabbat from the order of acquittal of the respondents passed by the High Court.

2. The prosecution case, as disclosed in the First Information Report, lodged at the instance of Haq Nawaz complainant, is that on 31-10-1968 after Isha prayer he along with his brother Bashir Ahmad, their father Mohammad Ramzan deceased besides Muhabbat P. W., were present at their behni in village Shah Sadiq Nehang keeping a watch on their crops out in their fields. All of a sudden Fateh Mohammad and Ahmad Khan respondents and Sultan co-accused armed with dangs appeared at the behni and opened the attack. Fateh Mohammad and Ahmad Khan accused each, gave Bang blows at the head of Mohammad Ramzan and Sultan gave a Bang blow to Muhabbat at his head. Mohammad Ramzan fell unconscious as a result of injuries sustained by him. Fateh Mohammad and Ahmad Khan accused also be laboured Muhabbat. On this Bashir Ahmad, Haq Nawaz complainant and Muhabbat P. Ws. raised an alarm. This attracted Rustam P. W., Noor Muhammad and Machia P. W. from the nearby fields who came running to the spot. They then managed to overpower the three accused and apprehended them at the spot. In the course of this struggle Haq Nawaz complainant also received some injuries. It is alleged in the F. I. R. that earlier at about degerwela on the same day while Haq Nawaz complainant along with his father Mohammad Ramzan and Muhabbat P. W. were present at their behni, the three accused came there and without their permission they started plucking the maize cones from their field. In spite of their protest they persisted in plucking the maize cones and also abused them. On this Ramzan deceased and Muhabbat beat Fateh Mohammad accused. In the meantime, Faqir Bashir Ahmad P. W. and Mohammad Bashir Jat by chancy came there and separated them. But the three accu3ed, while leaving, threw out a challenge that they shall soon avenge for this and teach them a lesson. It is alleged that because of this grudge the three accused, in consultation with each other, assaulted Ramzan and Muhabbat P. W. Ramzan was fatally injured and lay unconscious at the spot.

3. After the occurrence, Haq Nawaz proceeded to the village Shah Sadiq Nehang situated at a distance of about two squares from the spot to lodge the report. In those days, the police was stationed in the office of the Union Council in connection with the Mela of Shah Sadiq Nehang being held in the village. The Head Constable Imdad Hussain on duty recorded the statement (Exh. P-A) in the office of the Union Council at 10-30 p.m. There and then the Head Constable also prepared the injury statement (Exh, P-10/E) of Haq Nawaz. He despatched the report (Exh. P-A) through Chowkidar to the Police Station, Shorkot situated at a distance of ten miles from the village, where a formal F. I R. was recorded by Ghulam Qadir Muharir Head Constable at 11-30 p.m. on 31-10-68.

4. Head Constable Imdad Hussain started his investigation of the case and: proceeded to the place of occurrence. Before his arrival at the spot, Mohammad Ramzan bad died. He prepared the Inquest Report (P. W-10/Aland injury statement (Exhs. P. W-10/B) of the deceased. The investigating Officer also prepared the injury statement of Muhabbat (P. W-10/D). He took into his possession tile blood-stained earth. He also took into his, possession a Huqqa (Exh. P. 1). Bashir Ahmad P. W. produced the dangs (Exhs. P-2 to P-4) and were taken into possession by the Investigating Officer. Two Bangs were blood-stained and made into a parcel. He also found injuries on the person of Fateh Mohammad accused and prepared the injury statement (Exh. P. W.-10/C). The site plans prepared by the Patware. are Exhs. P-10/F and P-10/G. He apprehended the three accused who had been over-powered by the witnesses at the spot. He also despatched tile dead body under escort to the mortuary.

5. Dr. Abdul Qayyam P. W. performed the post-mortem examination of the dead body of Ramzan deceased on the 1st November, 1968 at 12-15 p.m. He found in all five injuries on it. Two of these were abraded wounds in the region of the head and a swelling 4 x 3' over the right temple. The fourth injury was an abrasion on the back of the right fore-arm lower part and the fifth an abrasion on the inner aspect of the right knee. The doctor found that as a result of the head injuries, there was a fracture of the left parietal bone and the multiple fracture of the scalp and the compres sion of the brain proved fatal for the deceased.

6. Mubahbat P. W. had in all four injuries. Two of these were lacerated wounds on the scalp and two were contusion marks, one on the left scapular region and the other on the right shoulder. All the injuries were simple in nature and were caused by blunt weapon.

7. Haq Nawaz complainant had two contusion marks on the back of the right side of his chest.

8. Fateh Mohammad accused had a contused wound 1/3" x 1/5" on the back of the scalp, a contusion mark on the back of the left fore-arm, a tender swelling 3/4" all around the tip of the left little finger with bluing of the nail and an abrasion on the left knee. All these injuries were simple caused by blunt weapon. In the opinion of the doctor, the duration of these injuries on the accused as well as those on the above P. Ws. were contemporaneous.

9. According to the defence, there was rivalry in the village between Pir Mohammad Khurshid Sajjada Nashin of the Khankah of Shah Sadiq Nehang and Pir Talib Hussain Sajjada Nashin of the Darbar Pir Bahadur Shah. Fateh Mohammad owed allegiances to Pir Talib Hussain who adopted him as his Khalifa. It also appears from the statement of Fateh Mohammad accused that the behni of the complainant party bad been set on fire and their pair of bullocks was also stolen from there sometime back and the complainant party suspected that Talib Hussain was responsible for the commission of these, offences. According to the accused on the night of the occurrence some unknown persons bad caused injuries to Ramzan deceased and Muhabbat P. W. Fateh Mohammad respondent was arrested from the Darbar of Pir Bahadur Shah and brought to the office of the Union Council at Shah Sadiq Nehang at about midnight. He was given a beating there by the police and when Ahmad Khan and Sultan accused tried to intervene on his behalf they were also involved in the case.

10. Faqir Bashir Ahmad (P. W. 6) is an important witness. He deposed to the first incident that took place at the behni of Ramzan deceased at the degarwela and is stated to have also joined the investigation at the spot. He deposed at the trial that as he was going from village Farid Mahmud, he saw people collected at the land of Ramzan deceased and he directed himself to the place. On enquiry from Ramzan he was informed that Fateh Mohammad accused had plucked some maize cones and he had been admonished. Ramzan deceased also stated to have slapped Fateh Mohammad accused. The witness intervened and separated them. But before leaving, according to the witness, Fateh Mohammad held out a threat that lie would soon avenge and teach them a lesson for this insult to him. This part of his statement was at variance with his statement before the police and the committing Magistrate with which he was confronted. He had stated that the was having a round of the field when he saw the first incident. He did not mention that the accused while leaving the spot after the first incident had held out any threat to settle the score. The trial Court as well as the High Court disbelieved the version of Faqir Bashir (P. W. 6), Haq Nawaz (P. W. 9), and Muhabbat (P. W. 11) about the first incident.

11. In this connection the Additional Sessions Judge doubted the presence of Faqir Bashir P. W. at the spot at the time of the first incident. He was inclined to hold from the evidence that there was no threat held out by the accused at the time to avenge for this insult to them and that this was altogether a subsequent innovation introduced by the prosecution. In the opinion of the trial Court, there was merely a scuffle that took place between the parties over the plucking of the cones. It was just a minor incident which did not provide sufficiently strong motive for the accused to have taken the life of Ramzan. But in the opinion of the High Court, there was no satisfactory evidence brought on the record with regard to the first incident and has altogether disbelieved the prosecution version on this part of the case. The High Court agreed with the trial Court in disbelieving that Faqir Bashir P. W. was present at the time of the first incident. In this ,connection, the High Court also observed that according to the investigating officer he was shown the field of maize but he did not even inspect the field or take possession of the cones which according to the P. Ws. bad been thrown in the field. On careful consideration, I see no reason to disagree with the conclusion at which the High Court arrived on appreciation of the evidence on the record.

12. The ocular evidence about the second occurrence after Isha prayer consists of the statements of Haq Nawaz complainant (P. W. 9), Muhabbat .(P. W. 11) and Bashir Ahmad (P. W. 10), supported by the testimony of Machia (P. W. 7) and Rustam (P. W. 8). They generally supported the prosecution version and implicated the three accused. In their evidence, Haq Nawaz (P. W. 9) and Bashir (P. W. 10) also stated that the two respondents had belaboured Ramzan after he bad fallen and that Muhabbat P. W. also received a beating at their hands. Their testimony in this behalf was not borne out from the medical evidence and the trial Court, therefore, disbelieved them on the point. The Court held that they had made exaggerations in deposing to this. Muhabbat P. W. was also partly disbelieved in this connection. But the Court saw no good reason to outright reject their entire evidence and held that the three eye-witnesses (P. Ws. 9 to 11) should be believed to the extent that their testimony was corroborated by the medical evidence as well as from that of the unrelated independent witnesses, namely, Rustam and Machia who deposed to the apprehension of the accused with the help of the P. Ws. and overpowered them at the spot. In conclusion the Additional Sessions Judge held that the prosecution was successful in establishing that Fatch Mohammad and Ahmad Khan gave one blow each to Ramzan deceased at his head and Muhabbat received simple injuries at the hands of the three accused. But there was no evidence about the injuries found by the doctor on the person of Haq Nawaz complainant (P. W. 9). In the opinion of the Court Ahmad Khan and Fateh Mohammad accused were guilty of the offence under section 302/34, P. P. C. for the murder of Ramzan deceased but Sultan accused did not share in the common intention with them for the murder. In addition to this the three accused were also convicted under section 323, P. P. C. for the simple injuries caused to Muhabbat P. W.

13. But the High Court was not at all satisfied with this evidence. It entertained grave doubts as to when and where the statement of Haq Nawaz complainant (Exh. P-A) was actually recorded by Head Constable Imdad Hussain (P. W. 12) and how it was sent to the Police Station Shorkot for the formal registration of the F. I. R. there. In the opinion of the High Court it was impossible to believe that Chowkidar, if one was at all sent, should have reached police station before 11-30 p .m. to enable Ghulam Qadir Head Constable (P. W. 3) to draw up the formal F. I. R. (Exh. P. A/1). Ghulam Qadir admitted that in Exh. P. A/1 he did not mention the name or the fact of the Chowkidar bringing the report Exh. P. A. to him nor did he draw up any zimni in this connection. In the opinion of the Court, the fact that the arrival of the Chowkidar and his name was not mentioned in Exh. P. A/1, coupled with the statement of Foot Constable Talib Hussain (P. W. 4) to the effect that he did not know whether Head Constable Imdad Hussain had deputed any Chowkidar to the police station showed that the report (Exh. P. A.) was not sent to the police station through any Chowkidar. From the evidence, the High Court was inclined to hold that the statement (Exh. P. A.) of Haq Nawaz was recorded by the police at the spot and not at office of the Union Council in the village at 10-30 p.m. as alleged by the prosecution. The High Court held than the presence of Machia, Rustam and Bashir P. Ws. at the spot was extremely, doubtful. If Rustam and Machia were having a round of their fields. watching against the possible thefts, they must have been carrying some arms especially during night time. Moreover, according to the High. Court, keeping in view the number of injuries on the deceased and the two injured, it would have been possible for the accused to run away from the place of occurrence before they could reach there. The Investigating Officer, Imdad Hussain, stated before the Committing Magistrate that he arrested Fateh Mohammad respondent at the spot and he did not say go -about the two other accused. This statement contained at least an implied admission that the other two namely Ahmad Khan and Sultan were not` present at the spot at the time when he arrived at the spot for his investigation. In the opinion of the Court, the story that the three accused were arrested` at the spot was not as convincing as the prosecution would have them believe. If there were six armed persons as against three unarmed persons, they were sure to have received more injuries in capturing the assailant. There was no satisfactory evidence to prove the first incident. On these findings the High Court held that the origin of the fight remained undiscovered and the prosecution case bristled with falsehood and embellishments and found it difficult to hold that the charge had been brought home to the respondents. The Court observed that the dung of Ahmad Khan was not found besmeared with blood and there was no injury on his person. He was, not proved to have been arrested on the spot. So far as Fateh Mohammad was concerned, he had injuries on his person which were contemporaneous to the injuries on the persons of Haq Nawaz and Muhabbat, but all the eye witnesses denied having given any injuries to him. In the circumstances. it was obligatory on the prosecution to have given an explanation of the injuries on Fateh Mohammad. One of the injuries on him was on the head and there was a contusion mark on the left arm which was apparently caused by a lathi. In the opinion of the High Court it was not possible to hold how the fight started and who was the aggressor. In these: circumstances, the High Court gave the benefit of doubt to the two respondents and set aside their convictions and sentences.

14. This Court granted leave to Muhabbat to appeal from the judgment of the High Court. According to this Court the occurrence was witnessed by four eye-witnesses, two of whom, namely (P. W. 7) Machia and (P. W. 8) Rustam, both neighbours, were independent persons who did not appear to bear any enmity with the respondents, who were apprehended on the spot along with their weapons and then made over to the police at the spot. (P. W. 9) Haq Nawaz, (P. W. 10) Bashir, both sons of the deceased and (P. W. 11) Muhabbat Khan, brother of father of the deceased, were the other eye-witnesses of the occurrence. P. W. Haq Nawaz and h-1uhabbat Khan, had injuries on their person. They were all supposed to be guarding their fields because of the mela being held in the locality and were the most natural and competent witnesses. But the High Court disbelieved the prosecution evidence including that of the independent and disinterested witnesses, namely, Machia and Rustam, without having discussed their evidence and apparently for no good reason. The evidence of recoveries as well as arrests of the respondents at the spot was rejected for reasons that called for further scrutiny.

15. It is in the evidence that Pir Mohammed Khurshid is the Sajjada Nashin of the Khankah Shah Sadiq Nehang and Rustam, Muhabbat, Machia P. Ws. and Ramzan deceased were his tenants before the management of the lands attached to the Khankah was taken over by the Auqaf Department. At the time of the occurrence they were cultivating the land as tenants under the Auqaf Department. Faqir Bashir Ahmad (P. W. 6) is the son of a brother of Pir Mohammed Khurshid. Syed Talib Hussain Shah is the Sajjada Nashin of Darbar Pir Bahadur Shah and Fateh Mohammad accused is his Khalifa at the Darbar. At the relevant time he along with the other two co-accused were living there at the Darbar. Muhabbat P. W. admitted in his cross-examination that prior to the occurrence their pair of bullocks was stolen and their behni was also set on tire. He, however, stated that they did not suspect any one for this. Nonetheless, he admitted that they had a suspicion that the three accused had been sent by Talib Hussain of Darbar Pir Bahadur Shah for plucking their maize cones in dispute. According to Faqir Bashir Ahmad (P. W.), there was a public announcement made on the loud speaker at the meld at 9/9-30 p .m. that Ramzan had been injured and that he along with the respectable people then reached the spot. The Inquest Report (Exh. P. W. 10/A) is witnessed by Faqir Khurshid Hussain and Faqir Ijaz Haider brother of Faqir Bashir Ahmad. The members of the Faqir family shadowed and joined the investigation to lend their weight against the accused, who owed their allegiances to Syed Talib Hussain Shah. All this lends support to the defence version that there was rivalry in the village between Pir Khurshid Sajjada Nashin of the Shrine of Shah Sadiq Nehang and Pir Talib Hussain of Darbar Pir Bahadur Shah.

16. As already discussed above the testimony of Faqir Bashir Ahmad (P. W. 6) in connection with the first incident at degarwela, which is the starting point of the prosecution case, was thoroughly disbelieved by tire trial Court and the High Court, both doubted his very presence at the spot at the time of the first incident. According to the witness he had also joined the investigation conducted by the Investigation Officer Imdad Hussain P. W. at the spot during the night. Indeed the memos prepared by the Investigation Officer for the recoveries of the blood-stained earth, tile hukka and the three dings (Exhs. P/B, P/C and P/D) are all signed by him as one of the attesting witnesses of the recoveries. But in this connection P. W. 8 Rustam and P. W. 7 Machia have both deposed that they did not see Pir Bashir Ahmad at the place of the occurrence throughout the night. The only irresistible conclusion that flows from this admission is that in fact none of these recoveries were made in his presence and that he had signed those memos only afterwards. This circumstance while on the one hand shakes the credit of the witnesses, it at the same time reacts strongly against the authenticity of the entire investigation made by the police at the spot. Significantly Faqir Bashir Ahmad P. W. had gone to the spot with the police yet he does not significantly even depose to the presence of the accused at the spot. He stated that all the three dings recovered at the spot were blood-stained although admittedly one of them was not blood-stained. In his cross examination he deposed that the dings (Exhs. P. 2 to P. 4) were not weighed. On the other hand, according to P. W. 10 Bashir Ahmad and P. W. 12 Investigating Officer Imdad Hussain these dangs were weighed and their weights are mentioned in the respective recovery memos (Exhs. P. B., P. C. and P. D.). All this shows that Faqir Bashir Ahmad was not pr.-sent at the place of occurrence at the time of the investigation and he had no first hand information about the state of affairs at the spot.

17. In this connection I would like to mention here that P. W. Machia in his examination-in-chief deposed that he along with Rustam, Noor Mohammad, Haq Nawaz, Muhabbat and Bashir P. Ws. had overpowered the accused at the spot. In his cross-examination, he stated that he did not know whether Bashir P. W. arrived at the scene. He did not see him there. In the context while in the examination-in-chief, he was referring to P. W. 10 Bashir Ahmad son of Mohammad Ramzan deceased but his statement in cross-examination was in relation to P. W. 6 Faqir Bashir Ahmad son of Faqir Mohammad Sharif. In this connection the High Court appears to have confused (P. W. 10) Bashir son of Ramzan with Faqir Bashir (P. W. 6) in observing that according to Machia he was not present at the time of the assault by the accused.

18. Faqir Bashir Ahmad (P. W. 6) in his cross-examination stated that at 9/9-30 p.m. there was a public announcement through loud-speaker at the mela that Ramzan had been injured. On this he, the police and respectable reached the spot. According to him he reached the spot at 1.0/10-30 p.m. and the statement of Haq Nawaz P. W. was recorded at the spot. But in his re-examination, it was elicited from him that the report was made to the police by Haq Nawaz P. W. in village Shah S3diq Nehang. In this connection, as discussed above, I have already held that his presence at the spot during the fateful night was not proved. But there is no denying the fact that he had heard the announcement about the injuries to Ramzan at 9/9-30 p.m. in the meld on the loud speaker. He was with the police at the mela till after 10-30 p.m. when the police eventually proceeded for the place of occurrence. Surely if in the meantime Haq Nawaz P. W. had appeared before the police in the village and made the statement (Exh. P. A) attributed to him, then P. W. Faqir Bashir Ahmad would not have missed to mention the same in his examination-in-chief. Notwithstanding what was extracted from him in his re-examination, his statement read as a whole conveys the impression that the police had proceeded to the spot in response to information conveyed through that announcement on the loud-speaker and not in pursuance to the statement (Exh. P. A) made by Haq Nawaz (P. W). In this connection, (P. W. 2) Mohammad Akbar, Foot Constable, stated in his cross-examination that he was on duty at the meld at Shah Sadiq Nehang on the 31st October, 1968. Imdad Hussain, Head Constable, brought the three accused in custody at 12 in the night to the office of the Union Council where he was sitting. He also deposed that in his presence no F. I. R. was recorded in village and that Imdad Hussain, Head Constable, had proceeded to the place of occurrence at 10/10-30 p m. Similarly, P. W. Talib Hussain, Foot Constable stated that he was posted on duty at the mela at Shah Sadiq Nehang in October, 1968. He could not recollect as to when and where he first saw the accused for the first time. He had accompanied the Investigating Officer, Imdad Hussain Head Constable to the spot. He did not recollect whether Imdad Hussain Head Constable took anything into writing before proceeding to the spot or that he had deputed any Chowkidar or a Constable to the police station in the night.

19. According to Head Constable Imdad Hussain (P. W. 12) after recording the statement (Exh. P. A) of Haq Nawaz he also prepared his injury statement (Exh. P. W. 10/E) in the village before proceeding to the spot. But in his evidence as a witness, Haq Nawaz (P. W. 9) was altogether silent on the point. Moreover, a comparison of the injury statement of Fateh Mohammad accused (P. W. 10/C), the injury statement of Muhabbat (P. W. 10/D) and the injury statement of Haq Nawaz (P. W. 10/E) will show that all of them were prepared with the same pen and ink in one sitting. This evidence also arouses one's suspicion that Exh. P. W. 10/E was not prepared in the village and fortifies the belief that the statement of Haq Nawaz (Exh. P.A) was not recorded in the village but at the place of occurrence.

20. Machia and Rustam P. Ws. and Ramzan deceased were tenants of the neighbouring lands in their respective possession under Pir Muhammad Khurshid before their management was taken over by the Chief Administrator of Auqaf. There are party-factions in the village. While these P. We. and the deceased appear to belong to the party led by Pir Muhammad Khurshid of the Khankah of Shah Sadiq Nehang, the accused owed their allegiance to Pir Talib Hussain of Darbar Bahadur Shah. As such, Machia and Rustam cannot be trusted as independent witnesses. Even otherwise, there are inherent infirmities in their testimonies. According to the F. I. R., they arrived at the spot after the accused had already administered the beating to Ramzan and Mubabbat and only after Haq Mawaz, Muhabbat etc. had raised an alarm. This is consistent with the testimony of Haq Nawaz and Muhabbat P. Ws. and they do not depose that Machia and Rnstam saw the beating administered by the accused to Ramzan and Muhabbat. Machia was at a distance of one acre and Rustam two acres from the place of occurrence. It is therefore, not possible to believe them when Machia P. W. deposed that he saw the three accused giving Bang blows to Ramzan deceased and Muhabbat P. W., and Rustam P. W. stated that he saw Ahmad Khan beating Ramzan. Sultan accused gave Bang blow to Mubabbat and Fateh Muhammad accused gave dang blow to Ramzan. Ali this happened at night time. The only part assigned to them in the F. I. R. is that they were helpful in simply apprehending the accused at the spot. To me, their testimony does not at all inspire confidence.

21. I have already discarded the evidence of P. W. 6, Faqir Bashir Ahmad one of the important witnesses of the recoveries and commented adversely on the conduct of the Investigating Officer Imdad Hussain in falsely obtaining his signatures as a recovery witness although he was not present at the spot at the time. The other witnesses of these recoveries are Haq Nawaa complainant and his brother Bashir Ahmad (P. W. 10) sons of Rawzan deceased. The trial Court as well as the High Court have concurred in holding that they were not trustworthy witnesses and could not be relied upon without independent corroboration. It may also be seen that according to Haq Nawaz P. W. they had snatched the dangs from the accused, but in the recovery memo (Exh. P. D.) they are shown to have been recovered by the Investigating Officer from the possession of respective accused. In my considered opinion, the prosecution has failed to prove these recoveries by any reliable evidence.

22. In the circumstances of this case, the trial Court found it difficult to believe that the Chowkidar, despatched with the report, would have covered the distance of ten miles in an hour for the formal registration of the F. I. R. (Exh. P. A./1) at the Police Station at 11-30 p.m. Likewise, in the opinion of the High Court, it was impossible under the circumstances of the case, that the Chowkidar, if one was at all sent, should have reached the police station before 11-30 p.m. to enable Ghulam Qadir, Head Constable (P. W. 3) to draw the formal F. I. R. It was admitted by Ghulam Qadir in his evidence that he did not mention in the F. I. R. the fact of the Chowkidar bringing the report (Exb. P.A) to him, nor did he draw up any Zimni in that connection. The High Court adverted to the statement of Talib Hussain (P. W. 4) and concluded that one could not be sure as to whether and when the report (Exh. P. A.) was written and bow and when it was sent to the police station. The High Court has thus drawn its own conclusion from facts and was not satisfied with the doubtful nature of the evidence, on the point.

23. According to the prosecution, Haq Nawaz, his brother Bashir Ahmad, Muhabbat (P. Ws.) and the deceased, Ramzan, were present at the place of occurrence when the three accused came there armed with dangs and launched their attack. In the F. I. R. (Exh. P. A./1), it is alleged that Fateh Muhammad and Ahmad Khan accused both gave one dang blow each at the head of Ramzan who fell unconscious. Sultan accused gave a blow to Muhabbat on his bead and Fateh Muhammad and Ahmad Khan also be laboured him. It was only after this that Haq Nawaz, Basher Ahmad and Muhabbat P. Ws. raised the alarm which attracted Rustam, Noor Ahmad and Machia, who came running to the spot from the nearby fields situated, at a distance of one and two killas respectively. Even if this version is believed, the three accused had all the time at their disposal to keep Haq Nawaz, Bashir and Muhabbat who had been injured and practically put out of action, at bay with the dangs in their possession and make good their escape before the arrival of Rustam, Noor Ahmad and Machia at the spot. With their arrival they were six unarmed persons trying to capture and overpower three accused armed with dangs. It is difficult to believe that in the tussel that ensued they had so easily surrendered without inflicting further injuries to any one of them excepting Haq Nawaz. One would have expected a number of injuries on the P. Ws. like those sustained by Haq Nawaz in consequence of the resistance offered by the armed accused to overpower them. It is also difficult to believe that P. Ws. were unarmed. According to the prosecution they were guarding their respective fields for fear of theft or damage to their crops. Bashir Ahmad (P. W. 10) stated that they were at their behni keeping watch on their cattle and the crop and also apprehended damage to the crop by jackals. Rustam (P. W.) deposed that he bad an apprehension about the theft of cotton from his fields. In the circumstances, it is unbelievable that they should be unarmed while guarding their crops during the night. It is proved from the evidence of Dr. A. A. Qayyum (P. W. 13) that Fateh Muhammad accused had at least four injuries on his person caused by blunt weapon. One of them was on the head and the other was a tender swelling 3/4' all around the tip of the left little finger with bluing of the nail. He had also a contusion mark on the left arm evidently caused by a club. There is no explanation for these injuries on the person of Fateh Muhammad accused.

24. In his evidence at the trial, the Investigating Officer Imdad Hussain (P. W.) was confronted with his statement before the committing Magistrate to the effect that he arrested Fateh Muhammad accused at the spot. He did not state anything about the arrest of the other two accused at the time and by necessary implication it meant that he did not arrest them at the spot. The dang of Ahmad Khan accused was not found stained with blood and he had no injuries on his person. It is, therefore, doubtful if he was at all apprehended at the spot. On the other hand, Fateh Mohammad had injuries on his person which were contemporaneous to the injuries on the person of Haq Nawaz and Muhabbat. But all the eye-witnesses denied having given any injuries to him. There is no explanation forthcoming from the side of the prosecution for these injuries found on the person of Fateh Mohammad accused. In the circumstances of this case the High Court rightly observed that the origin of this fight remains undiscovered. It was obligatory on the prosecution to have resolved all doubts and tendered some explanation for the injuries on Fateh Mohammad accused but failed to do so. It is, therefore, not possible to hold how this fight started and who was the aggressor.

25. I agree with the High Court in holding that this case bristles with' falsehood and embellishments. There are many a doubtful features of this case which remain unexplained on the record. The High Court on apprecia tion of the evidence on the record, gave the benefit of doubt to the respondents and set aside their convictions and sentences. It cannot be held from the evidence that their conclusions on facts drawn from the evidence were unreasonable or palpably wrong and erroneous. There is no violation of any principle of appreciation of evidence by the High Court brought to my notice. In Zafar Ali v. State (PLD1962SC320), it was held that if there be no violation of a principle by the Courts below in the assessment of the evidence before them, the Supreme Court would not interfere, for it is not the practice of this Court to enter into an appreciation of evidence in criminal appeals. Also is Mohammad .Khurshid v. State (PLD 1963SC157), it was observed that in the absence of anything to shoe that the view formed by the High Court from the evidence was either unreasonable or opposed to any principle or rule governing appreciation of evidence, Supreme Court will not reappraise it. Similarly, an Fazal Khan v. The State (PLD 1964SC54), this Court held that it is not the function of this Court to re-assess the evidence on points of facts which did not prevail with the. Courts below. Also in Noora v. State (PLD 1973SC469), it was observed that as .an ultimate Court, the Supreme Court must give due weight and considera tion to the opinion of the Courts below and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not E arrived at by disregard of any accepted principle regarding the appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below.

26. For the foregoing reasons there is no force in this appeal which is dismissed. The respondents; if under arrest, may be set at liberty at once unless they are wanted in any other case.

27. SALAHUDDIN AHMED, J .----I regret I am unable to agree with the judgment proposed to be delivered by my learned brother Muhammad Akram, J.

28. The present appeal is by special leave of this Court.

29. The occurrence took place on the 31st October, 1968, after Isha prayer at the Bahni of Muhammad Ramzan deceased and his two sons Haq Nawaz (complainant) and Basher Ahmad, and appellant Muhabbat Khan. A meld was being held in the village and they were keeping watch over their corn crop to prevent the mela visitors from plucking maize cones. Respondents Fateh Muhammad and Ahmad Khan along with co-accused Sultan arrived there having been armed with dangs and attacked Muhammad Ramzan and the appellant. Fateh Muhammad and Ahmad Khan each gave a dang blow on the bead of Muhammad Ramzan and he fell down unconscious. Sultan, too, gave a dang blow on the head of the appellant. This was followed by Fateh Muhammad and Ahmad Khan giving more brows to the appellant. The incident was witnessed by P. Ws. Bashir Ahmad, Haq Nawaz and the appellant. The alarm raised by them brought to the scene P. Ws. Rustam, Noor Muhammad and Machia from the nearby fields. The respondents and co-accused Sultan were over-powered on the spot, but in the struggle for capture P. W. Haq Nawaz got injured. P. W. 2 Haq Nawaz went to village Shah Sadiq Nihang, which is at a distance of 2J squares from the spot, and lodged a report with P. W. 12 Imdad Hussain, Head-Constable, who along with some other police officers was present there in connection with the arrangement of the meld. The report was recorded at 10-30 p.m. in the office of the Union Council, and it was sent through a chaukidar to police station Shorkot at a distance of 10 miles from the village, and the formal first information report was drawn up there by P. W. 3 Ghulam Qadir, Head- Constable, at 11-30 p.m. The injury statement of P. W. Haq Nawaz was also prepared in the office of the Union Council. Head Constable Imdad Hussain, thereafter, proceeded to the spot and found Muhammad Ramzan dead. Injury statement of P. W. Bashir Ahmad was prepared at the spot and he and P. W. Haq Nawaz were sent for medical examination. Somer blood-stained earth and a broken huqqa were recovered from the spot. The Head Constable took into possession at the spot dangs P. 2 to P. 4 produced by P. W. Bashir and said to belong to the accused persons. Two of the dangs P. 2 and P. 3 said to belong to Fateh Muhammad and Sultan accused, were blood-stained. It may be stated here that subsequently Fateh Muhammad's dang was found to be stained with human blood.

30. The motive given for the crime in the first information report was that earlier on the day of the incident at digarwela, the two respondents and co-accused Sultan had come to the field of the accused and started plucking maize cones without their permission. On being asked not to do so, the accused abused and went on plucking maize cones whereupon Muhammad Ramzan appellant beat respondent Fateh Muhammad. P. W. Bashir came and separated them, and the three accused left threatening revenge to the complainant party.

31. The respondents pleaded not guilty to the charge framed against them. Their case was that there was rivalry between Pir Khurshid of Shah Nihang and Pir Talib Hussain, Sajjada Nashin of Darbar Pir Bahadur Shah, to whom Fatch Muhammad had pledged allegiance and had become his khalija. The complainant party suspected Pir Talib Hussain for setting their Behni on fire and stealing a pair of bullocks. Some unknown persons had injured the deceased and P. Ws. Muhabbat and Fateh Muhammad respectively. The respondent was arrested from the Darbar of Pir Bahadur Shah and brought to the office of Union Council of Shah Sadiq Nihang at midnight, and was beaten there, and when respondent Ahmad Khan and Sultan accused intervened they were also involved in the case. It may be stated here that the defence suggestions put to the witnesses concerning the aforesaid defence,, were denied. There is no evidence of any rivalry between Pir Khurshid and. Pir Talib Hussain nor was any such suggestion given to any witness.

32. The learned Sessions Judge who tried the accused did not believe the motive but convicted and sentenced the two respondents under section 302/34 of the Pakistan Penal Code to death for the murder of Muhammad Ramzan,, and under section 323 of the Code to six months' rigorous imprisonment each for injuring the appellant.

33. The High Court allowed the appeals of the convicts and acquitted them of both the charges.

34. Leave to appeal was granted by this Court against the two respondents alone to satisfy itself whether the High Court acted on correct principles applicable to the safe dispensation of criminal justice in disbelieving the prosecution evidence and in interfering with the trial court's assessment of the evidence. Non-bailable warrants were directed to issue for the arrest of respondents Fateh Muhammad and Ahmad Khan.

35. I have carefully perused the High Court judgment, and I have found that the Court instead of considering the evidence as a whole has picked up an omission here and an omission there, and relied on some obliging statement made by formal witnesses called to prove some formal matters in order to throw over-board the uncorroborated statements of independent and dis interested witnesses. These formal witnesses are foot constables P. Ws. Muhammad Akhar and Talib Hussain, and I shall advert to their evidence presently. This manner of treatment of the evidence besides being in contravention of the accepted principles applicable to appraisement of evidence has caused a flagrant miscarriage of justice which must be prevented in the interest of justice. The High Court also failed to give due weight to the assessment of the witnesses by the trial Court.

36. On the point of motive the trial Court believed that at the digarwela on the day of occurrence there was a scuffle on the land of Ramzan deceased between the accused and the complainant party consequent upon the plucking of maize cones and the exchange of harsh words and even the slapping of Fateh Muhammad by Ramzan deceased and P. W. Muhabbat. It, however, held that this did not constitute sufficient motive for killing Ramzan. The High Court said that even if it was further believed that on the plucking of the maize cones respondent Fateh Muhammad had been slapped by the deceased the motive could not be regarded as sufficient for causing the murder of the deceased. Curiously, however, the High Court went on to observe that if the altercations and slapping were true, they might furnish sufficient motive. The High Court then proceeded to say without any reasonable ground that these have not been proved by the prosecution. The matter was left there, and the Court failed to consider that the witnesses who proved the motive were hardly challenged about the digarwela incident. This incident found mention in the first information report which was promptly lodged by P. W. Haq Nawaz. P. W. Haq Nawaz deposed about this incident at the trial, and denied that the version as to plucking of maize cones was false. P. W. Faqir Bashir Ahmad, who had intervened and separated Ramzan deceased and Fateh Muhammad accused, proved this incident. It was not put to him that the scuffle between the accused and Fateh Muhammad was false. P. W. Muhabbat also proved this incident and it was not put to him that it did not take place. On these evidence it was unreasonable for the High Court to hold that the prosecution failed to prove the digarwela incident.

37. The High Court next went on to hold that the first information report was not recorded or drawn up at the time and spot purported to have bean done. This is against the weight of evidence, and the finding of the learned Additional Sessions Judge. Complainant Haq Nawaz said he immediately left to inform the police at the mela and having found them sitting in the office of the Union Council made the report there which was recorded by Head-Constable Imdad Hussain P. W.

12. This statement of the complainant has gone unchallenged. P. W. Imdad Hussain deposed that the complainant made the report to the former at 10-30 p.m. while he was on duty at the mela in village Shah Sadiq Nibang and the report was sent through a chaukidar to police station Shorkot for drawing up a formal first information report. This evidence, too, has not been challenged. Both the complainant, and P. W. Imdad Hussain received support on this point from the first information report Exh. P. A/1 drawn up by P. W. 3 Read Constable Ghulam Qadir. P. W. 3 said the report was drawn up at 11-30 p.m. and denied the suggestion that it was recorded in the morning.

38. There is no reason why should P. W. Imdad Hussain and Ghulam Qadir have deposed falsely against the respondents. As against these evidence P. W. Faqir Bashir, who was examined to prove the dtgarwela incident and the recovery of blood-stained earth and the crime dangs obliged the defence in cross-examination and said that the report of P. W. Haq Nawaz was recorded at the spot. In re-examination, however, he said the report was made to the police in village Shah Sadiq Nihang. P. W. 2 Akbar, a foot -constable, was examined to prove that he was given certain sealed parcels to be carried to Lahore. He said in cross-examination the report was not recorded in his presence in village Shah Sadiq Nihang. P. W. Talib Hussain, another foot constable, was called to prove that he escorted the dead body for post-mortem examination. He said in cross-examination he did not recollect whether P. W. Imdad Hussain took any thing in writing before proceeding to the spot. The evidence of P. W. Faqir Bashir, and the two foot constables P. Ws. Muhammad Akbar and Talib Hussain were, however, preferred by the High Court to the unchallenged evidence of the complainant and Head-Constable P. W. Imdad Hussain and the first information report, and the evidence of another Head-Constable P. W. Ghulam Qadir, and the Court held that the prosecution failed to prove when and where the first -information report was recorded. It is pertinent to quote here the following observations of this Court in the case of Bagu v. State (P L D 1972 S C 77) :---

39. "Before parting with this case, vie cannot help observing that the frequency with which cages are coming up before us wherein formal witnesses, particularly foot constables, are found to be obliging the defence in cross-examination with regard to matters wholly unconnected with the part the witnesses took in the investigation, is causing us some concern. We entirely agree with the observations of one of the learned Judges of the Peshawar High Court in the case of Sikandar Shah v. The State that the obliging concessions made by such witnesses in cross-examination cannot be considered to be of any value. We also hope that the Provincial Governments will take note of these obser vations and take steps to check such propensities on the part of their own subordinate Police Constables."

40. The findings of the High Court were highly unreasonable and against the' evidence. The High Court did not give due weight to the opinion of the trial judge. The observation of the High Court that the learned trial Judge took it for granted that the statement of P. W. Haq Nawaz was recorded by P: W. Imdad Hussain at 10. 30 p.m. was uncharitable, and not justified.

41. Next the High Court disbelieved the unchallenged evidence of P. Ws. Rustam and Machia, which received full support from P. Ws. Head Constable B Imdad Hussain, Haq Nawaz and Bashir teat the two respondents were caught at the spot and made over to the police Both the P. Ws Rustam and Machia arc disinterested persons and bad no reason to falsely implicate the two respondents. Head Constable Imdad Hussain categorically stated that the accused were taken into custody at the spot and denied the suggestion that they were arrested elsewhere. No reason has been suggested to him why he should falsely depose in the matter. His omission to mention in the committing Court about the arrest of Ahmad respondent is no contradiction and could not be used as substantive evidence to hold that Ahmad was not captured at the spot. P. W. Haq Nawaz (complainant) who was injured while capturing the accused stated that they were captured at the spot and mentioned this fact in the first information report. 'The learned Sessions Judge upon these evidence held that the respondents were captured on the spot and the High Court having disregarded this finding merely on speculation and conjecture failed to give due weight to the opinion of the Sessions Judge.

42. The presence of P. Ws. Rustam and Machia at the spot has not been challenged. Their names are mentioned in the first information report which was promptly lodged. Their statements were recorded on the same day. They are residents of village Shah Sadiq Nihang and they both were out to keep watch over cotton/maize crops on their land situated at a distance of 2 killas/one square from the behni of Ramzan deceased. They should not have been disbelieved merely because they said they had no arms with them. P. W. Haq Nawaz and Mubabbat were injured at the occurrence and the doctor found them injured. The High Court said there was not enough material to bold that their injuries were fabricated as contended on behalf of the defence. The doctor who examined their injuries was not asked whether the injuries were fabricated. P. W. Imdad Hussain prepared their injury -statements on the same day. The Sessions Judge, therefore, rightly found that they were present at the occurrence. The High Court, again merely relied on conjecture and most unreasonably held that they were not present.

43. P. Ws Rustam and Machia are independent and disinterested witnesses. The three other eye-witnesses P. Ws. Haq Nawaz, Bashir Ahmad and Muhabbat (60 years old) had no enmity with the two respondents. The ocular D evidence, therefore, was adequate and reliable, and proved the prosecution case.

44. Respondent Feteh Muhammad was found to have received the following injuries by the doctor :----

(1) A contused wound x 1 /5' on the back of the scalp left side 1f away from the left ear.

(2) A contusion mark 3' X on the back of the left fore-arm lower part.

(3) Tender swelling 3/4' all around the tip of the left little finger with bluing of the nail.

(4) An abrasion 1/10' x 1/10" on the left knee.

45. The High Court said that inasmuch as the prosecution witnesses failed to give any explanation for the respondent's injuries the entire prosecution case was adversely affected by the failure. The injuries received by the respondent are simple and caused by a blunt weapon. The evidence discloses that there was a struggle between him and his captors. That being so it is not quite true to say that there is absolutely no explanation for the respondent's injuries. The injuries are such that they may escape the notice of witnesses particularly at night when the occurrence took place. In presence of the overwhelming evidence of unimpeachable character in support of the prosecution case, this failure was immaterial.

46. It is, therefore, manifest that the reasons given by the High Court in upsetting the order of conviction passed by the learned Additional Sessions Judge is not based on any unreasonable ground.

47. I may sum up the prosecution evidence thus : Both the trial judge as well as the learned Judges of the High Court came to the finding that there was a digarwela incident which took place prior to the occurrence in question. Both the courts however were of the opinion that it did not constitute sufficient motive for committing murder. There have been cases where for lesser incidents murders have been committed. Besides, one never knows the to commit murder. Be that as it may there true reasons chat impels a person is ocular evidence furnished by no fewer than five persons two of whom were injured in the occurrence, in support of the prosecution case and, therefore, their presence could not be doubted. Two others are independent and disinterested witnesses. The ocular evidence has received ample support from the medical evidence as well as from the fact that the respondents were captured at the spot and made over to the police.

48. Having regard to the facts and circumstances mentioned above the impugned order of acquittal by the High Court is unreasonable, and has in my opinion occasioned a failure of justice, and should therefore be set aside. I do not find any extenuating circumstance in favour of the lesser sentence.

49. I would accordingly allow the appeal, set aside the order of acquittal and restore the order of conviction and sentence of death passed on the two respondents, Fateh Muhammad and Ahmad Khan by the learned Sessions Judge.

ORDER OF THE COURT

50. Since the opinion of the Judges are equally divided, the judgment of the High Court, giving the benefit of doubt to the respondents herein and acquit them, remains in the field. This appeal, is, therefore, dismissed.

51. S. A. H. Appeal dismissed.