ROSHAN Versus THE STATE

1. QAISER KHAN, J .-(1) Roshan son of Khawaja, (2) Saee son of Hassan, (3) Anara son of Ahmad Khan, (4) Salehon son of Hussain, (5) Saee son of Raja, (6) Mutalli son of Roshan, (7) Ghulam son of Hassan, (8) Inayat son of Muhammad, (9) Bahadur son of Khawaja, (10) Muhammad son of Raja, (11) Muhammad son of Maulu, (12) Bahadur son of Ismail. (13) Maulu son of Bahawal, (14) Sardara son of Hasham. (15) Shera son of Maulu, (16) Ismail son of Sahebo, (17) Shabu son of Maulu, (18) Qadir son of Sardara, (19) Nadir son of Hasham, (20) Baqri son of Suba, (21) Baqri son of Khushi, and (22) Nadir son of Khawaja, all residents of village Chorand, Police Station, Phalia of the Gujrat District were tried by the Additional Sessions Judge, Gujrat, on charges under sections 302/149, P. P. C. six counts, 307/149, P. P. C. one count and 148, P. P. C. By his judgment dated the 11th of December 1971 he acquitted Baqri son of Khushi and Muhammad son of Raja accused and convicted and sentenced the remaining twenty as follows ;

(1) All the 20 were convicted under section 148, P. P. C. and sentenced to two years' rigorous imprisonment each.

(2) All the 20 were convicted under section 307/149, P. P. C. on one count and sentenced to four years' rigorous imprisonment each.

(3) All the 20 were convicted and sentenced under section 302/149, P. P. C. on six counts, though six counts are not specifically mentioned.

(4) Roshan and Mutalli, Ghulam son of Hassan and Nadir son of Khawaja were sentenced to death and the rest to transportation for life.

2. All the convicts filed a joint appeal in the High Court against their convictions and sentences while Mehdi complainant filed a revision petition against the acquittal of Baqri son of Khushi and Muhammad son of Raja accused. The learned Additional Sessions Judge also made a reference regarding the death sentences of the four accused mentioned above. The appeal, the revision petition and the reference were all disposed of by the learned Judges of the Lahore High Court by the same judgment dated the 8th of February 1974. The convictions and sentences of Roshan, Mutalli. Ghulam son of Hassan, Nadir son of Khawaja and Saeed son of Hassan were upheld while the appeal of the others was accepted and their convictions and sentences set aside. The revision petition of Mehdi complainant was dismissed and the death sentence of the four convicts were confirmed.

3. The five convicts (appellants herein) filed a petition for special leave to appeal against the aforesaid judgment of the Lahore High Court dated the 8th of February 1974. Leave to appeal was granted on the 10th of June 1974 to consider whether the convictions of the petitioners rested on sound principles regarding the appreciation of evidence in the administration of criminal justice.

4. The facts of the case are as follows. The relationship of the six deceased and the prosecution witnesses as gleaned from the prosecution evidence is given in the pedegree-table below ;

5. Common ancestor

6. Allakho (Allah Bakhsh) Makhan

7. Khuahi Jano

8. Hayat Mirza

9. Jan Muhammad Atta Ghulam Ali

10. Muhammad deceased Muhammad deceased

11. Khano saee Mehdi Hako Soni

12. P. W. 8

13. Mst. Rehmat injured

14. P. W. 9

15. Rajo Noor

16. P. W. 10 P. W. 3

17. Mst. Shahni

18. Fatima

19. Mst.

20. Aisha Ali Mst Ghulam deceased Bahadur Aisha deceased

(wife) deceased

21. Saro Anara Abbasa Mohsan

22. Mst. Rehmat P. W. 9 is the wife of Mirza.

23. The relationship of the 22 accused Inter se as gleaned from the prosecution evidence is given in the following pedegree-table (A), (B), (C) and (D).

(A) Common ancestor

24. Khawaja Raja

25. Muhammad Saco accused accused

26. Another Mst. Mst. Babadur Nadra Roshan Ahmad daughter Sardaran Fatima accused accused accused Khan

27. Mutalli Anara accused accused

(B) Common ancestor

28. Bahawal

29. Hasham

30. Maulu accused

31. Nadira Sardara Ghulam accused accused Nabi

32. Mst. Mst. Muhammad Shera Sbahu

33. Jhalan Bahishtan accused ,accused accused

34. Inayat accused

(C) Common ancestor

35. Suba Sardar Sahabo

36. Qadra Ismail accused accused

37. Daughter Baqri fist, Rabia accused

38. Bahadur accused

(D) Common ancestor

39. Hassan Khushi

40. Baqri accused

41. Ghulam Saee Salebon accused accused accused

42. Mst. Sardaran daughter of Khawaja is the wife of Maulu accused. Mst. Fatima the daughter of Khawaja is the wife of Shahu accused. Mst. Bahishtan daughter of Maulu accused is the wife of Roshan accused. Mst. Rabia the daughter of the sister of Baqri accused is the wife of Ghulam Nabi brother of Sardara and Nedra accused. Mst. Jhalan the daughter of Maulu accused is the wife of Baqri son of Khushi accused.

43. The parties belong to village Chorand, but they have constructed Deras in their land at a distance of 1i miles from the village where they live. The Deras of the deceased and the prosecution witnesses and the Dera of Roshan accused are at a distance of about 100 karams from each other.

44. On the 17th of November 1967 soon after sunrise Mehdi complainant P. W. 8, Abbas, Anara, Saro, Hayat, Rajo P. W. 10, Shahna, Sam Ali Bahadur, Ghulam son of Mehdi, Ghulam Ali and Atta Muhammad son of Mirza, Mst. Rehmate and Mst. Aisha and Mst. Fatima were sitting in the open in their Dera when from the eastern side Nadir son of Khawaja armed with a shot-gun. Roshan son of Khawaja armed with a rifle, Ghulam son of Hassan armed with a shot-gun, Saee son of Hassan armed with a spear, Salehon son of Hassan armed with a spear. Mutalli son of Roshan armed with a shot-gun, Anara son of Ahmad Khan armed with a spear, Inayat son of Muhammad armed with a spear. Baqir Ali son of Kbushi armed with a spear, Babadur son of Khawaja armed with a spear, Saee son of Raja armed with a spear, Sardara son of Hasham armed with a pistol, Maulu son of Bahawal armed with a spear. Babadur son of Ismail armed with a spear, Nadir son of Hasham armed with a club, Shera son of Maulu armed with a spear, Ismail son of Sahebo armed with a spear, Bahadur son of Sardara armed with a shot-gun, Bagir Ali son of Suba armed with a shot-gun, Muhammad son of Raja armed with a spear, Shahu son of Maulu armed with a spear, and Muhammad son of Maulu armed with a club came there. On seeing them coming armed Mehdi P. W. 8, Abbas, Hayat, Raju P. W.10, Anara, Saro, Shahna, Soni, Ali, Bahadur and the two Ghularrs ran towards the nearby sugarcane crop and took shelter there. Ali, Atta Muhammad, Mst. Aisha, Mst. RahmaU BIN and Mst. Fatema ran towards the nearby Kotha of Ali. Roshan accused fired at Atta Muhammad and hit him in the chest. Mutalli accused fired at Ali and hit him in the chest. Roshan accused fired another shot at Mst. Aisha and hit her in the back. All the three fell down. Thereafter all the 22 accused started injuring them with their respective weapons. Mst. Fatema, however, ran and entered the Kotha of Ali. All the 22 culprits after murdering Ali, Atta Muhammad and Me. Aisba went towards the sugarcane crop where Mehdi and his companions had taken shelter and from where they were witnessing the occurrence. On seeing the accused coming Mehdi and his companions started running towards Kojifar Camp 1i furlongs away to save their lives. All the culprits after searching Mehdi and his companions in the sugarcane crop went In their pursuit towards the Kojifar Camp. In the Kojifar Camp Roshan fired at Ghulam and hit him on his face. Ghulam fell down and then all the culprits injured him. The rest of the companions of Mehdi complainant bad taken shelter is the various tents of the Camp. All the culprits went on searching the tents and at last reached the tent where Ghulam and Ali Babadur sons of Mebdi bad taken shelter. Ghulam and Ali Babadur came out of the tent and started running for their lives. Ghulam son of Hassan, Roshan son of Khawaja, Mutalli son of Roshan and Nader son of Khawaja fired a shot each at them as a result of which the two fell down. Thereafter all the culprits started injuring the two. Mst. Rahmat widow of Mirza came running towards the Kojifar Camp raising hue and cry but Saee accused stabbed her with a spear and injured her. Mehdi and the rest of his companions had taken shelter in a tent and witnessed the occurrence from there. After murdering Ali Babadur and Ghulam all the accused started searching Mehdi and the rest of his companions but Mehdi and the rest of his companions went out of the Camp and entered the nearby sugarcane crop for saving themselves. All the accused entered the sugarcane crop in search of Mehdi and his companions and started firing in the crop. Mehdi and his companions however returned to the Camp after the accused had left. After leaving Raju P. W., Anara, Saro, and Mst. Rahmate injured at the place where the two deceased Ghulam an3 Ali Babadur were lying and Shahna, Sace and Hayat at the place where the deceased Ali Babadur, Atta Muhammad and Mst. Aisba were lying Mehdi went to Police Station Phalia distant 9 miles from the spot where he reported the matter to the above effect at 8-15 a.m.

45. The motive for the offence given by Mebdi was that some forty years back his father Makhan and uncle Allah Bakhsh had murdered Maulu the father of Nader etc. accused for which his uncle Allah Bakhsh was hanged. Besides a year back Jan Muhammad brother of Ali Muhammad etc. deceased had enticed Mst. Sardaran the wife of Ghulam son of Hassan accused which was returned a month later by Mehdi and others. On account of that enmity Mehdi and his son bad applied for the binding down of the accused on which action had taken under section 107/151 of the Code of Criminal Procedure. Furthermore a day before the occurrence at Degar time the cattle of Mutalli accused had trespassed into the cotton crop field of Mehdi whereupon Ghulam son of Mehdi deceased had beaten Mutalli.

46. The aforesaid report Exh. P. A. was recorded by Sikandar Hayat, S. H. O., P. W. 17 on the basis of which be registered a case. The case was investigated by him who was also assisted by Ghulam Ali. A. S. I . P. W. 15 and Aurangzeb, Inspector, P. W.

16. The material points of the investigation are that twelve '12 bore empty cartridges and five '303 bore empty shells were found at the two spots and the accused who were arrested during the period 21st of October 1967 to 23rd of October 1967 all except Nader son of Hasham and Muhammadoo son of Maulu who were alleged to have been armed with sticks led to the recoveries of the respective weapons which they allegedly had at the time of the occurrence.

47. The Fire-Arms Expert Muhammad Sarwar P. W. 18 found the '303 empty shells to have been fired from the rifle of Roshan accused and the '12 bore empty cartridges to have been fired from the '12 bore pistol and shot-guns recovered from Baqir son of Suba, Nader son of Khawaja Ghulam son of Hassan, Mutalli son of Roshan, Sardar son of Hassan and ,Qadir son of Sardar accused.

48. The medical evidence of Dr. Ghulam Ahmad P. W. 1 revealed the ,following

(I) Atta Muhammad deceased had a bullet, a shot-gun and four incised wounds l

(ii) Mst. Aisha deceased had one bullet wound ;

(iii) Ghulam son of Mehdi deceased bad three bullets and three incised wounds besides a few abrasions ;

(iv) Ghulam son of Mirza deceased had one shot-gun, one bullet and one incised wound ;

(v) Ali Babadur deceased bad one bullet, one shot-gun and three incised wounds besides a few abrasions ;

(vi) Ali Muhammad deceased bad three or four shot-gun wounds 1

(vii) Mst. Rehmate P. W. had one stab wound.

49. At the trial the prosecution relied upon the ocular testimony of Mehdi

50. F- W. 8, Mst Rehmate P. W. 9, Raju P. W. 10 and Allah Ditta P. W. 11 B corroborated by the recoveries, the statement of the Arms Expert, medical evidence and motive.

51. The learned trial Judge relied upon the aforesaid evidence and convicted and sentenced all of the accused except Baqir son of Khushi and Muhammad son of Raja. These two were acquitted as they successfully proved their alibi of having been in District Jail, Gujranwala on the day of occurrence undergoing imprisonment.

52. The learned Judges in the High Court found that the evidence of the recoveries was such that it did not inspire confidence, that the prosecution witnesses were related to the deceased and inimical towards the accused, the independent evidence about the incident at the Camp though available was not produced, that the medical evidence regarding the number of injuries on the deceased and injured did not conform to the ocular evidence .and that at least two of the accused who were acquitted by the trial Court bad wrongly been implicated. They however came to the conclusion that most of the accused though rot all had taken part in the occurrence in view of the statements of the ocular witnesses whose presence on the spot could not be doubted. The assignment of specific roles to the accused by the prosecution witnesses was taken as test by the learned Judges for finding out as to which of the accused had with certainty taken part in the occurrence. Since the five appellants had been assigned specific roles by the ocular witnesses their convictions and sentences were therefore upheld while :all the rest were acquitted.

53. Mr A. K. Brohi, learned counsel for the appellants and Mr. Riaz Ahmad, Assistant Advocate General for the State heard at length and the record perused.

54. So far as the recoveries are concerned the learned Judges of the High .Court came to the conclusion that these could not be relied upon. Personally I too am of the opinion that they were perfectly right in coming t7 ;o the said conclusion. The circumstances under which the recoveries were made and the evidence regarding them clearly suggest that all the recoveries were fake. According to the ocular witnesses two out of the 22 accused had sticks while the rest bad spears and guns. Now the mere fact that every weapon assigned to the 22 accused in the first information report was recovered itself casts doubt on the genuineness of the recoveries. But irrespective of this there are some strange features of these recoveries which make their genuineness very much doubtful. 14 of the accused, namely, Shera, Sbahu, Bahadur son of Ismail, Ismail, Maulu, Salebon, Salehon, Saee son of Raja, Babadur son of Khawaja. Anara, Baqri son of Khushi, Mubammadoo son of Raja, Ghulam son of Hassan, R4utalli and Sardar sons of Hasham themselves appeared before the police to be arrested but strangely enough they brought their respective weapons themselves to be taken possession of by the police. Eleven of them had spears, two shot-guns and one '12 bore pistol. It does not stand to reason that a person accused of a murder while surrendering himself to the police for arrest would bring with himself the weapon with which he is alleged to have committed the murder Besides since these weapons were not recovered at the instance of the accused while they were in custody, the recoveries could not be used as evidence against them under section 27 of the Evidence Act. So far as the spears are concerned the recoveries have no value whatsoever as these have not been found to be connected with the occurrence and such like spears can be found in any house.

55. As regards the shot-guns and rifle recovered on the 26th, 27th and 28th from Qadir, Baqri son of Suba, Roshan and Nader, the recovery evidence besides the statement of the Inspector consists of the statements of Muhammad Aslam P. W. 13 and Raju P. W. 10 Muhammad Aslam is a witness to the recovery of two shot-guts one each from Qadir and Balri son of Suba and Raju is a witness to the recovery of a rifle from Roshan and shot-gun from Nader. Ghulam Ali the other witness to the first recovery and Sher Alam the other witness to the second recovery, were not produced at all. Now it is very strange that in the whole village no Lambardar or any independent person was found to witness these recoveries. Rain. P. w. 10 who is an ocular witness is closely related to the deceased and on inimical terms with the accused and since he was out in view of his statement to get the accused convicted, it :s not understood as to how he was made a witness to the recoveries and as to how reliance could be placed on his statement so far as the recoveries were concerned. Similarly Muhammad Aslam' p W. 13 is the grand son of Mehdi P. W. and the nephew of Ali Babadur and Ghulam deceased. His statement regarding the recoveries, too, could therefore have no value whatsoever. So far as the statement of the Inspector is concerned in the facts and circumstances of the case his statement alone cannot be considered sufficient for proving the genuineness of the recoveries.

56. So far as the empty cartridges and empty shells are concerned Mehdi P. W. In his report and in his statement has admitted that he was witnessing the shooting of the deceased at both the places and that he visited the deceased at both the places after the accused had left and posted persons there to look after the dead bodies, but it is very strange that he did not notice any empty on the spot as no mention of any empty cartridge or shell was made by him in his report. The next important thing in this respect is that the empty shells and cartridges were taken into possession on the 17th that is to say on the day of occurrence but it is very strange that these were not sent to the Expert till the arrest of Qadir, Baqri son of Suba, Roshan and Nadir on the 23rd from whom the shot-guns and rifle were allegedly recovered. It is also worth noting that the other two shot-guns and the '12 bore pistols were also produced by the accused Ghulam son of Hassan, Mutalli and Sardar on the 23rd the date on which the empties were sent to the FireArms Expert. These empty cartridges and shells were sent allegedly on the 23rd but were received by the Fire-Arms Expert on the 25th. Taking all these facts and circumstances into consideration it is abundantly clear that no reliance can be placed on such recoveries.

57. As regards the medical evidence the learned Judges in the High Court have remarked that it did not support the statements of the ocular witnesses so far as the number of assailants were concerned, and they were, in my opinion, perfectly justified in this. All the prosecution witnesses have stated that when the deceased were shot and they fell down all the 22 culprits attacked them and gave them injuries with their respective weapons. It is however very strange that only 11 or 12 stab and incised wounds were found p on the persons of all the deceased and injured despite the fact that 13 of the accused were armed with spears. Furthermore five of the accused had shotguns, one a 12 bore pistol and one a rifle and the total number of firearm injuries on the person of the deceased are not more than 13 which clearly shows that the culprits were not so many as given by the prosecution witnesses. The medical evidence thus does not support the prosecution version so far as the number of culprits is concerned.

58. There is no doubt that the motive was there for the accused to attack the deceased but then motive is a double-edged weapon and it could also be the reason for charging some of the accused falsely. The main question is as to who were the assailants and as to whether the prosecution witnesses were deposing to the number of the accused correctly. In this connection I now proceed to deal with the ocular evidence.

59. All Ditta P. W. 8 is a witness regarding the incident which took place at the Kojifar Camp. He may have been present at the spot as he was alleged to be in service there, but the material thing to be determined is as to whether he knew the accused and as to whether he saw all of them acting in the manner in which he has alleged. He belongs to quite a different village distant 8 miles from the spot and he was therefore not expected to know the accused. As a matter of fact a perusal of his statement reveals that he actually did not know the accused. He could not name all the accused o at the trial and he even failed to identify some of them in Court. He could not name all of them even before the police or in his statement recorded under section 161 of the Code of Criminal Procedure or before the committing Magistrate. It was therefore very much essential that the accused should have been got identified through him in a regular identification parade before a Magistrate which was not done. Besides it is highly improbable as I shall re presently discussing it with respect to the statements of the other prosecution witnesses that this witness could have been in the Camp through the tents each accused acting in the manner in which he has alleged in his statement.

60. So far as the remaining three prosecution witnesses, namely, Mehdi, P. W. 8, Mst. Rehmat P. W. 9 and Raju P. W. 10 are concerned their presence on the spot was natural and it could not be denied. It is however to be seen as to whether they noticed all the accused on the spot and have given a correct version of the occurrence. The statements of Mehdi and Raju P. Ws]8 show that theirs was a family of Badmashes and since they had a number of enmities admittedly one with the accused they must necessarily have had arms in their houses. These two prosecution witnesses were sitting in their Deras with at least 11 more male members of their family and since they could not get any chance of having resort to their arms it clearly shows that the assailants came all op a sudden and surprised them. This is also evident from the statement of Mehdi P. W. who has said that they saw the accused when the accused were only 15 karams away from them. Under these circumstances the deceased, the prosecution witnesses and their companions must naturally have all at once on seeing the assailants coming armed taken to their heels for saving their lives. This is also clear from the statements of the three prosecution witnesses when they stated that they did take to their heels on seeing the accused. In such a situation it was therefore impossible for the prosecution witnesses to have noted all the accused, counted their number, much less noted the weapon, each one of them was carrying.) According to the three prosecution witnesses four out of them, namely, Ali, Atta Muhammad, Mst. Aisha deceased and Mst. Fatima, ran towards the Kotha of Ali while the rest of them numbering 11 including Mehdi and Raju P. Ws. ran towards the nearby sugarcane crop. Since the accused were allegedly 22 in number all armed it does not stand to reason that all the 22 ran in pursuit of the four out of whom two were women and none went in pursuit of the I1 who were all men. Most of the accused must naturally have rushed after the 11 and under these circumstances the question of Mehdi and Raju P. Ws along with their other companions standing by the side of the sugarcane crop watching the killing of Ali. Atta , Muhammad and Mst. Aisha did not arise. Even if all the accused had gone' after the aforesaid four persons, it is preposterous to assert as alleged by the prosecution witnesses that the remaining 11 remained standing at the little distance watching the killing and then started running when all the 22 assailants turned towards them. The statements of the P. Ws. to the effect that after Roshan and Mutalli had fired at the three deceased, namely, Ali. Atta Muhammad and Mst. Aisha all the 22 accused fell on them and caused injuries to them. Now this assertion of this is belied by the statement of the doctor according to whom there were only 11 injuries on the persons of the 3 deceased in all. If 22 persons had fallen on the 3 deceased then the 3 deceased would certainly have had a large number of injuries on their persons. Similarly the statement of Mehdi and Raju to the effect that they remained standing in the tents watching the 22 accused murdering Ali Bahadur, Ghulam son of Mehdi and Ghulam son of Mirza, and when the accused had finished the three and turned towards them then they ran away is again preposterous. Besides the number of injuries on these three deceased which according to the doctor were 14 in all is again inconsistent with the statement of the prosecution witnesses according to whom all the accused used their weapons against the three deceased.

61. So far as Mst. Rehmate P. W. 9 is concerned the injury on her person and the nature of it is shrouded in mystery. Ghulam Ali, A. S. I., P. W. has stated that her injury sheet was prepared by the Sub-Inspector while Sikandar Hayat, Sub-Inspector, P. W. has stated that it was prepared by the A. S. I. This injury sheet is missing and could not be found in the file at the trial. Sikandar, Sub-Inspector, has stated that he accompanied the A. S. I. and Mehr Khan, Foot-Constable to the hospital in the same truck in which the dead bodies and Mst. Rehmate were taken but the statements of the A. S. I. and Mehr Khan do not show that the Sub-Inspector accompanied them to the hospital. The statement of Mehr Khan even does not show the going of the A. S. 1. with him to the hospital. The statement of the doctor shows that Mst. Rehmate was semi-conscious and could not make a statement. The statement of the A. S. 1. shows that Mst. Rehmate was in fact admitted in the hospital but the statement of ttris witness beforer the committing Magistrate with which he was confronted however shows that after her examination by the doctor he brought her to the spot where she was examined by the Sub-Inspector. On the other hand the statement of Mst. Rehmate shows that she was admitted in the hospital and was not brought back to the spot from the hospital. The statement of the A. S. I. shows that Mst. Rehmate was sitting at the Dera when the 5.

13. O. examined her and directed him to take her to the hospital while Mst. Rehmate has stated that she was lying near the dead bodies at the Kojifar Camp when the police arrived. Now if this lady had been seriously injured near the Kojifar Camp and was semi-conscious when she arrived in the hospital it is not understood as to how did she come to Dera and was found sitting there by the police to be examined. On the other hand if she was injured at the Dera then it was not possible for her to. come to the Kojifar Camp. At any rate she could not have reached the Kojifar Camp following the accused to witness the occurrence in the Kojifar Camp in detail. According to the F. I. R. which was admitted by mehdi P. W. to be correct she ran with All, Atta Muhammad, Mst. Aisha and Mo. Fatima to the Kotha of Ali. Two of her sons Ali Muhammad and Atta Muhammad and her first cousin Mst Aisha were murdered there and under the circumstances it was not possible for her to have left that place to follow the 22 accused who bad gone running in pursuit of the 11 persons. It was also impossible for her to have reached the Kojifar Camp two furlongs away in time to note In detail what happened there. The assertions of P. Ws. Mehdi and Raju in their statements at the trial that Mst. Rebmate had run with them towards the crop also does not stand to reason as females would naturally under such circumstances run towards the houses as was done by the other two females, Mst. Aisha and Mat. Fatima, and not towards the crop fields.. In view of the above no reliance could therefore be placed even on the statement of Mo. Rehmate. The story put forth in the F.

1. R. and by the prosecution witnesses at the trial is further belied by the fact that there were a large number of serious discrepancies. and contradictions in the statements of the prosecution witnesses at the trial and their statements before the police and the committing Magistrate.

62. It appears and is only natural and plausible that on seeing the accused the deceased, the prosecution witnesses and their companions took to their heels, that some of the assailants shot and stabbed the three deceased in the Dera and the rest pursued the others and overtook tree of them near the Kojifar Camp where they were killed while the rest succeeded in making good their escape. In view of the circumstances of the case the standing of the prosecution witnesses or any one of their companions at any place for watching the killing is nothing but of a cock and bull story.

63. In view of the total number of injuries found on the persons of the deceased the accused could not be 22 in number. It is highly improbable that old fathers aged 70, 80 and 90 years could have joined with their young sons in the attack. But even if it be assumed that the accused were 22 in number as alleged by the prosecution witnesses, then it was not possible under the circumstances of the case for the prosecution witnesses to have noted all of them much less noted the weapon in possession of each. The presence of the three prosecution witnesses Mehdi, Raju ands Mst. Rehmate in their Dera cannot be denied as it was natural for them to have been there but the main point is as to how many accused attacked them and as to who were they. It cannot be denied that the prosecution witnesses must have noted some of the accused but then it cannot be fond. out from their statements as to who those some were. The test applied by the learned Judges of the High Court in coming to the conclusion as to which of the accused actually took part in the occurrence, was no test at all bemuse specific role is assigned in such like cases to a particular accused not because of the fact that he had taken part in the occurrence but because of his importance and the need for his elimination. The assigning of specific role to the accused could not therefore prove that the said accused did take part in the occurrence. Since all the accused admittedly did not take part in the slaughter and since it could not be ascertained from the statements of the prosecution witnesses as to which of them actually took part in the slaughter the benefit of doubt is therefore to be given to all of them.

64. I would therefore accept the appeal, set aside the convictions and sentences of the appellants and acquit them.

65. MUHAMMAD YAQUB ALI, C. J .--I have had the advantage of reading the judgment proposed to be delivered by my brother Qaisar Khan, J., and regret my inability to agree with the conclusions recorded in it.

66. In my opinion the charges against the five convicts have been proved beyond a reasonable doubt, and it will result in a grave miscarriage of justice if we were to now raise our own doubts in the third Court and acquit them in a state of uncertainty of mind.

67. The facts briefly are that Ata Muhammad, Ali Muhammad, Mst. Aisha; Ali Bahadur, Ghulam son of Mirza, and Ghulam son of Mehdi of village Churand, Distt. Gujrat, were killed on the morning of 17th October, 1967, in the presence of four eye-witnesses, of whom, P. W. Mst. Rehmate, was herself injured by a spear blow- inflicted on her left side by Saee appellant.

68. Twenty-two accused, including the 5 appellants herein, were prosecuted for the offences under sections 302, 307 read with 149 and section 148 of the Penal Code, for rioting, killing the 6 deceased persons and causing injuries to Mst. Rehmate. Of them the Additional Sessions Judge, Gujrat, acquitted Baqri, son of Khushi, and Muhammad, son of Raju and convicted the remaining 20 for the offences charged and sentenced as under :

(i) All 20 were sentenced to 2 years' R. I. under section 148 and 4 years R. I. under section 30 7 / 149.

(ii) Roshan. Mutalli, Nadir and Ghulam, appellants, before us, were sentenced to death under section 302/149, P. P. C. and the remaining 16 accused were sentenced to transportation for life.

69. On appeal by the convicts and Reference under section 374, Cr. P. C., a Division Bench of the Lahore High Court gave the benefit of doubt to IS of the convicts and acquitted them of all the charges. The conviction arid sentences of the remaining five who are appellants herein. were maintained.

70. Before embarking on an examination of the evidence; on record, it i necessary, in a case of this nature. to examine certain background detail in order to achieve a more realistic perspective. The occurrence took place in October, 1967, and the accused were brought to trial in May, 1971, nearly 3# years. At the trial rustic witnesses, including Mst. Rehmate, were subject to lengthy and grueling cross-examination extending over periods ranging from two to four days each, by counsel who has acquired a reputation for employing brow-beating tactics on witnesses and was criticised for this practice in a case which came before the Curt some years ago. Under these circumstances, it should come as no surprise to discover that the cross-examination of the prosecution witnesses brought out certain contradictions between the statements made by them at the trial and the statements .recorded earlier by the committing Magistrate and the police.

71. The occurrence took place at the Dora of Mehdi, P. W., in the area of village Churand in Distirict Gujrat. The six deceased and the P. Ws. alongwith .other family members resided at the Dora. On the 17th October, 1967. at about b-30 a.m. some of the inmates of the Dera were sitting on Charpies on the south-western corner of the Dora while some were engaged in household .chores when the 22 accused approached from the eastern side. The accused were seen when they were at a distance of about 14 or 15 karams from .the group. They raised a Lalkara at which Ata Muhammad, Ali Muhammad and Mst. Aisha ran towards the Kotha of Ali Muhammad on the western aide of the Dera, while the rest ran south to take shelter in the nearby sugarcane and Bajra fields. When they reached the Banna of the sugarcane field, they turned to see how the others were faring. The accused followed AU Muhammad, Ali Muhammad and Mst. Aisha. Roshan, appellant, fired at Ata Muhammad and Mutalli, appellant, fired at Ali Muhammad. Both were hit on the chest and fell down near the Kotha of Ali Muhammad. Roshan fired another shot at Mst. Aisha which hit her in the back and she too fell to the ground. After these killings the assailants went in search of the group who had taken shelter in the crops. On seeing them. Mehdi and his companions ran towards the Khojifar Camp which is situated about 400 yards south of the Dera of Mehdi. The assailants followed in hot pursuit. Ghulam, son of Mirza was shot by Roshan at the entrance of the Camp. He fall and was set upon by the other accused. The assailants then entered the camp in search of the others who had managed to take shelter in the tents there. One of the accused Ismail informed the others that Ali Babadur and Ghulam, son of Medhi were in a particular tent. When they approached that tent, Ali Bahadur and Ghulam, came out and attempted to flee. Ghulam, son of Hassan, Nadir, Roshan and Mutalli, appellants before us, each fired a shot at them. They fell and the rest of the accused fell upon them. Mst. Rehmate entreated with the accused to spare them whereupon Saee, appellant, gave her a spear blow in her side at which she fell. The accused then went in search of Medhi and the others who bad, in the meantime, fled from the camp and taken shelter in the sugarcane fields. There was some firing in the sugarcane fields, but no one was hit. The accused soon gave up the search and left the place of occurrence firing in the air as sign of victory.

72. As mentioned earlier, there were four eye-witnesses to the occurrence: Mehdi Khan, P. W. 8; Raju. P. W. 10; Mst. Rehmate, P. W. 9; and Allah Ditta, P. W.

11. The last named deposed only to the killings at the Kojifar Camp. The presence of those witnesses at the place of occurrence is natural; Medhi, Raju and Mst. Rehmate habitually resided at the Dera of Medhi where the first three victims were shot dead ; and Allah Ditta was employed as a Chowkidar at the Kojifar Camp where the remaining three deceased were killed and Mst. Rehmate was inured. The presence of these P. Ws. has been accepted by the trial Court and by the High Court. My brother Qaiser Khan, J. has also held that the presence of the first named three witnesses cannot be denied as it was natural for them to be at their Dora.

73. The recovery of blood-stained earth from the Dora of Mehdi and the Kojifar Camp established that the killings had taken place there. According to the ocular evidence the time of occurrence was a little after sunrise. This is supported by the medical evidence according to which the probable time between death and the post-mortem examination of the deceased indicated that the deaths had occurred around 6-30 a. m. The appellants and the P. Ws., are resident of the same village and were, therefore, well known to each other. It is evident, therefore, that the eye-witnesses who were present at the Dora of Mehdi would find no difficulty in identifying their assailants.

74. The eye-witnesses account was, however, not fully accepted by the High Court and has bees rejected by my brother Qaiser Khan, J., on the ground inter alia, that the witnesses were all related to each other and to the deceased and that they had obviously exaggerated the sequence of events in order to implicate as many of the. opposite camp as possible. It is further considered improbable for the eye-witnesses to recall the names of the 22 assailants and to describe the weapons which each one of them carried at the time of the assault. Reliance is placed in this context on the contradictions found in the statements of the four eye-witnesses.

75. It is likely that at the onset of the attack conditions of pandemonium and panic prevailed at the Dera of Mehdi and it may not have been possible under these conditions for the P. Ws. to have noticed with exactitude the numb-.r of accused and the nature of the arms carried by them. This, however, does not mean that they were unable to register the identity of sonic of the assailants p at the beginning of the assault particularly those who took the leading part in the attack and of the others at the latter stage. It is equally obvious that in the raiding party some members would be out in front, more prominent than others, especially those armed with guns. An examination of the statements of the eye-witnesses reveals a consistent pattern. All of them; stated that the attack was launched by Roshan appellant who fired at Ata Muhammad and Mst. Aisha while Mutalli fired at Ali Muhammad ; when these three fell the rest of the accused fell upon them with their respective weapons. Similarly at the Kojifar Camp, Roshan fired at Ghulam, son of Miraa who fell and was then set upon by the other attackers with their respective weapons. As regards Ali Bahadur and Ghulam, son of Mehdi, they were fired at by Roshan, Ghulam, Mutalli and Nadir. When they fell, they too were set upon by the remaining accused. When Mst. Rehmate attempted to intervene she was given a spear blow by Saee. It is clear, therefore, that the attack at the Camp was led by Roshan. Mutalli, Nadir, Ghulam and Saee. This is the rationale on which the High Court has based its specific role test in maintaining the convictions of the five appellants.

76. The events narrated bring out that the assault by the accused had lasted for nearly half an hour if not more. This provided the inmates of the Dera of Mehdi and Allah Ditta who was present at the Kojifar Camp ample time to identify the 22 assailants and to register the weapons which P each of them carried as well as the part played by each. The contention that it was not probable for the eye-witnesses to remember the names of the 22 assailants and the arms which they carried is therefore, not very sound.

77. The principal eye-witness is Mst. Rehmate, P. W. 9; her presence is fully vouched by the spear injury suffered by her at the hands of Saco, appellant, at the Kojifar Camp. My brother Qaisar Khan, J., has not fort inclined to place any reliance on her evidence four the reasons a (i) That there was no clear indication which of the two police officers involved in the investigation of the case had prepared Mst. Rehmate's injury-shoot. In their respective statements each officer ascribed the preparation to the other. The injury-sheet was missing and could not be found on the file before the trial Court ; (ii) S. I. Sikandar Hayat's statement that he accompanied A. S. I. Ghulam Ali and Mehr Khan. F. C., in the truck which took Mst. Rehmate and the dead bodies to the hospital is not supported by the A. S. I. nor Mehr Khan, P. C.; (iii) The A. S. 1. contradicted Mst. Rehmate's statement that she was admitted to the hospital. He had stated that she was brought back to the Dera after the medical examination ; (iv) The A. S. I. stated that Mst. Rehmate was at the Dera when the police arrived, whereas she stated that she was lying near the dead body of her son at the Kojifar Camp when the police arrived there ; (v) In the F. I. R., Mchdi bad stated that Mst. Rehmate ran with Ali Muhammad, Ata Muhammad, Mst. Aisha and Mst. Fatima towards the Kotha of Ali Muhammad, in that case it was not possible for her to cover 2 furlongs from there to the Kojifar Cart. p in time to witness the killings there ; and finally (vi) The statements by Mehdi and Raju, P. Ws. that Mst. Rehmate ran with there towards the sugarcane field do not stand to reason because women would naturally, in such circumstances, ran towards the houses as was done by the two other females, Mst. Aisha and Mst. Fatima and not towards the fields. I have anxiously considered all these points and cannot induce myself to agree with the reasons which have commended themselves to my brother.

78. We must first look to the nature and locale of the- injury suffered by Mst. Rehmate. The occurrence had taken place at about 6-30 a. m. at Churand, 9 miles away from Phalia where she was examined by Dr. Ghulam Ahmad, Medical Officer, Civil Hospital on 17-10-1967 at 1-45 p. m. He found on her person "a stab wound on left side chest outerside in lower part 1" x x abdominal cavity deep." Exh. P. TT is the medico-legal certificate. The omentum was protruding outside the wound which was oblique in direction. The patient was semi-conscious and was unable to depose coherently. A cut mark was seen on her shirt which corresponded to the injury. The shirt is P. W. 15/1. Exh. P. TT/1. is the sketch of the injury. According to the entry in the certificate, she was taken to the hospital by Malik Ghulam Ali, A. S. 1., P. W. 15 at 1-30 p. m. In the opinion of the doctor the injury was about 6 hours old and caused by a sharp-pointed weapon i.e., spear. The doctor was cross-examined by the defence counsel but not a single question was put to him to cast doubt on the result of the examination of Mst. Rehmate or the time or the date on which she arrived at the hospital or about the nature of the injury suffered by her and whether it was self-suffered or not, although such a suggestion would have been absurd in view of the very nature of the injury. If the blade of the spear had travelled a little more into the cavity it would have resulted in her death. Viewed in this perspective it is immaterial whether the injury statement prepared by the A. S. I. was traceable on the record or not and whether it was prepared b) one or the other police officer. The medical evidence placed on the record left no doubt that Mst. Rehmate was caused the spear injury on her flank by one of the assailants who were responsible for killing her three sons in the same transaction as the contradiction to whether Mst. Rehmate was admitted S into the hospital or allowed to go back is also of no consequence in this respect. I would believe that she disregarded even her own injury and the advice given by the doctor and came back to the village to mourn over the dead bodies of her three sons and the other members of the family.

79. The same is true of the other two grounds which have appealed to my learned brother in rejecting her testimony to toto. It is not difficult to visualise that Mst. Rehmate was, as a mother more concerned with the safety of her son who had run towards the sugarcane and Bajra fields and onwards to the Kojifar Camp rather than to take shelter in the adjoining Kotha at the Dera as did Mst. Fatima. Again we may recall that her statement was recorded after a lapse of 3J years and no human memory can be so perfect as to avoid contradictions like whether she lay near the dead bodies at the Kojifar Camp when the police arrived there or she was at the Haveli.

80. On a proper appraisal of her statement I entertain no doubt that Mst. Rehmate was present both at the time of the initial attack by the accused at the Dora of Mehdi and the follow up at the Cojifar Camp. Her statement corroborated as it is by the three other P. Ws., and the circumstantial evidence in the case furnishes sufficient material to maintain the convictions of the five appellants.

81. As to the contradictions in the statements of the eye-witnesses on which the defence has placed so much reliance, I may point out that some counsel devote all their energies to create such contradictions and to this end lengthy cross-examination Is conducted for hours and days which is intended to confuse, even an intelligent person, and is not calculated to elicit any useful information. This exercise is undertaken because Courts give undue importance to contradictions found in the statements of the prosecution witnesses. To my mind, the primary consideration in appraising the evidence given by a witness is to determine, firstly, why has be offered to testify ? Has he seen the occurrence ? If so, has the witness a motive to implicate a person who gas not among the culprits or to exaggerate the part played by any of them ? If a witness satisfies these two tests. then the Court R should watch the general demeanour of the witness in order to judge the quality of his perception and his faculty to recall the past incidents. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory or the confusion caused in his mind by b relentless cross-examiner. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether be knows the answer to it or not. It is not uncommon that the cross-examine) puts words in the mouth of witnesses and the presiding officer is not vigilant enough to check it. I: is also common experience that, without any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it more than others. Mere contradictions, therefore, do not lead to the result that whatever the witness has said on the salient features of the case and which conforms to the other evidence on the record is to be thrown overboard.

82. I have appraised the evidence of Mehdi, Raju and Allah Ditta in the same way as I have dealt with the testimony of Mst. Rehmate. There is no doubt that there was hostility between the parties, and that at one time or another there had been open clashes between them, over disputes concerning land or the abduction of each others women-folk. Two months prior to the occurrence both parties were bound down to keep the peace. But were these disputes sufficient to induce Mehdi and Mst. Rehmate to falsely implicate the appellants for the murders of their sons and let off the real killers unless, of course, it was open to doubt whether the occurrence had taken place in daylight and seen by these P. Ws. This, of course, is not to.

83. While Mehdi and Raju are related to the deceased, Allah Ditta is a wholly independent witness. He was employed as Chowkidar at the Kojifar Camp. His presence was, therefore, natural when the appellants and their companions killed Ghulam, son of Mirza, Ali Bahadur and Ghulam, son of Mehdi, in the Camp. The suggestion that he was related to Mehdi was repudiated by Allah Ditta and no material was brought on the record to the contrary. It was then said that Medhi had helped him in securing employment of the Kojifar Camp. But that was no ground for him to falsely depose against the accused. The account given by him is :-

84. "I am employed in Cojifar Company for the last 1J years. During the days of occurrence' Cojifar Company had taken the contract of construction of canal near village Churand. The company remained in Churand for about 2i years. Some people of village Churand used to supply milk to the employees of the company. Mehdi, P. W. and other P. Ws. and the deceased persons and the accused persons also used to supply milk to the employees of the company. All these persons used to coma to the camp for supply of the milk. I know the accused. On the day of occurrence I remained on duty up to the 11 a. m. My duty had started from 3 a. m. I am the original resident of village Pindi Kaloo which is at a distance of 8 Kos from Churand. The occurrence in the camp took place after about 15 or 20 minutes of the sunrise. I was standing in front of my tent after having made the round. I heard 2 or 3 gun reports from the northern side. Shera Operator and Mian Dost Muhammad, Imam Masjid. also arrived at the place where I was standing. After this there were more reports of fires from the north. I saw Makins (Makins is a tribe) coming running. Ali Bahadur. Ghulam, son of Medhi, Ghulam, son of Mirza, Raju, P. Ws., Anara, P. W., Saroo, P. W., Basu, Sate and two or three other persons were these Makins. They ran some distance and then showed their speed. Then they again started running fast. Except Ghulam son of Mirza, the others entered the camp. When Ghulam son of Mirza was about to enter the camp and was near the Saloon of the Incharge of the Camp, Roshan accused fired at him. On this he fell down. There were 21 other persons with Roshen. I can take the names of 13 accused and identify all the 22 accused persons present in Court. After Ghulam son of Mirza fell down all the accused started beating him and killed him. After that the accused proceeded towards the tents and Mst. Rehmate also came after them. She was pushed aside. I, Mian Dost Muhammad and Sher Muhammad Operator ran towards the accused and asked them not to kill, persons in the Camp. Three persons, namely, Baqri, Qadir, Sardar accused armed with pistols again said that only Sardar was armed with pistol and the remaining two were armed with guns and they went in the third tent from the western side. Roshan armed with rifle, Mutalli son of Roshan accused, Nadir and Ghulam armed with guns entered the tent from tie eastern side. On seeing them Ali Bahadur and Ghulam, son of Mehdi ran out of the tent. Roshan, Nadir, Mutalli and Ghulam accused fired at them on which they fell down and then all the accused started beating them and murdered them. Adalat, a labourer came out of his tent and some body fired which hit him. We were hit by the pellet. When Mst. Rehmate came forward to save Ali Bahadur and Ghulam, sons of Mehdi, Nadir, son of Khawaja accused asked Sate accused to hit her on which she was hit by him with balam. On receiving balam blow she fell down. After Ali Bahadur and Ghulam fell down the accused started Bhangra dance and they also dragged their dead bodies and threw the same at distance of 6/7 Karams. Then the accused again entered the camp and seeing the tent they went towards the westwards sugarcane field. We heard seven or eight gun reports from there while I, Mian Dost Muhammad and Shera were standing. Then the accused ran away with their respective weapons. The police arrived in the camp at 11-15 am. or 11-30 a.m. My statement was recorded by the police on the same day.

85. He was subjected to cross-examination for 3 days but nothing material was elicited to discredit his testimony. He has been relied upon by the trial Judge and by the learned Judges in the High Court and I see no reason to differ with them.

86. As regards the testimony of Mehdi and Raju, P. Ws. there is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. if that were so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other V independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where this Court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness.

87. In Niaz v. The State P L D 1960 S C 387, Kaikaus, J., observed :-

88. "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they came does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it . . :"

89. Similarly in Shihab Din v. The State P L D 1964 S C 177 Cornelius, C. J., observed :-

90. "The mere relationship of witnesses does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed."

91. One of the arguments urged vehemently before us by the learned) counsel for the defence was that a wide net has been thrown to implicate every able-bodied member of the accused family. In the present case the Dera of Mehdi was inhabited by a large number of persons. A good few of whom were registered Badmashes with previous records of violence. V It is evident, therefore, that a successful attack at the Dera would require a large body of well-armed men. The account given by the eye-witnesses that their assailants numbered 22 is, therefore, not at all an improbable fact. The naming of the twenty-two accused, in particular, the present appellants and the part played. by them is indeed a circumstance corroborate in the ocular evidence. See Nazir v. The State PLD 1962SC269, in which this Court observed ;-

92. "It will be observed that the learned Judges have relied upon two circumstances t (i) That the number of culprits mentioned was such as would be required for an attack of the kind which is the subject-matter of these proceedings; and (ii) that the persons named as culprits were such as would be expected to join in the attack. Without saying so the learned Judges have acted upon what was lard down in Niaz v. The State for they have found the number of persons charged appeared to be the true number of culprits and it has been laid down in that judgment that in such a case the statements of interested witnesses can be acted upon. We are in agreement with the learned Judges that the number of culprits named was the probable number that would be required from such an attack and we also agree that the second matter on which the learned Judges have relied is not an irrelevant consideration."

93. Lastly the ocular evidence is amply corroborated by the recoveries of the empty cartridges and shells from the two spots, the recovery of arms I, from the present appellants, the evidence of the Arms Expert, the medical evidence and the evidence of motive.

94. The Investigating Offices recovered two empty '303 calibre shells and four empty '12 bore shot-gun cartridges from the Dera of Mehdi and 3 empty '303 shells and 8 empty '12 bore cartridges from Kojifar Camp. The recoveries were witnessed by Raju, P. W. 10, Shehna and the Investigating Officer. The empties were scent to the Forensic Laboratory on 23rd October and received by them on the 25th October.

95. Roshan, Nadir and Saee, appellants, were arrested on the 23rd October. On the 26th October, Rashan led to the recovery of a rifle (P/25) from his cattle shed. On the same day Nadir led to the recovery of a '12 bore shotgun (P/26) from his house and Saee led to the recovery of a spear from his house. These recoveries were witnessed, by Raju, P. W. 10., Muhammad Aslam, P. W. 13, and the Investigating Officer. On the 23rd October Mutalli while in custody led to the recovery of shot-gun (P/27) and Ghulam, eon of Hassan led to the recovery of shot-gun (P/29).

96. The recoveries of the empties and the weapons were rejected mainly on the grounds that the witnesses were related to the deceased and inimical towards the appellants. And further that some of the guns were recovered on the day the crime empties were sent to the laboratory. The Investigating Officer has stated-in cross-examination that none of the officers of Kojifar Camp were present on the day he recovered the fire-arms from Roshan and Nadir and the spear from Saee. We do not know who were the respectables of the locality but it is sufficient to note that the investigating Officer, though cross-examined for 2 days, wag not asked a singly question on this point. It is important to note, however, that the recoveries at the instance of Roshan and Nadir, namely, the rifle (P/Z5) and shot-gun (P/26) were made on the 26th October, one day after the sealed parcel containing the crime empties had reached the Fire-Arms Expert at Lahore. The x Fire-Arm Expert, Muhammad Sarwar, P. w. 18, deposed that the empty '303 shells received by him on; the 25th October were fired from the rifle (P/25), recovered from Roshan on the 26th October, similarly the '12 bore cartridges were fired from the shot-gun P/26 recovered from Nadir. This evidence could not be faked and it endorses the reliability of the evidence of the Investigating Officer, with respect to the other recoveries from the remaining appellants. In the absence of any evidence of bias on the part of Investigating Officer, there is no valid reason to disbelieve his evidence.

97. As regards the medical evidence, it is obvious that where one party comes under a mass attack it is not possible to state with any certainty the t number and nature of injuries inflicted upon the victims. Roshan was armed with a rifle, Nadir, Mutalli and Ghulam had shot-guns and Saee was armed with a spear. The post-mortem examination on the deceased revealed total of 7 bullet wounds ; 8 shot-gun wounds and 12 incised wounds. Thus, one is to discount some exaggerations of the accounts given by the P. Ws., there is a general conformity of the ocular evidence with the number and nature of the injuries found on the deceased and Mst. Rehmate.

98. Towards the end, the learned counsel for the appellants argued that since several of the deceased were registered Badmashes, it was possible that they had been killed by some of their other enemies. There is no evidence to support this suggestion. Nor it is possible to accept that Mst Rehmate and Mehdi would falsely implicate the appellants and allow the real killers of their dear ones to escape.

99. In the result I entertain no doubt about the guilt of the accused for the offences with which they were charged and sentenced by the trial Judge. The appeal is dismissed.

100. DORAB PATEL, J. -I have read the judgment to be pronounced by my learned brother Qaisar Khar, J. I regret my inability to agree with it, because, in my opinion, we would not be justified in interfering with the concurrent finding of guilt against the appellants.

101. According to my learned brother, the claim of the eye-witnesses that they had identified 22 assailants and noted the weapons which each one of them was carrying was false because the eye-witnesses were pre-occupied with the necessity of saving their own lives and were therefore not in a position to see in such detail who the assailants were and how they were armed. This was one of the contentions raised by the appellants in the High Court, and in repelling it the learned Judges pointed cut that the eyewitnesses knew all the assailants and that there had really been two occurrences, one at the dera and the other at the Kojifor Camp, therefore, they B held that the eye-witnesses had sufficient time and opportunity to identify B the assailants and to notice the weapons carried by each of the assailants. These reasons cannot be said to be arbitrary or perverse, and as we are not sitting as the first Appellate Court, in my humble opinion, we would not be justified in this final appear to hold that there has been any error of law in the concurrent finding that the occurrence took place broadly in the manner described by the eye-witnesses.

102. However, the learned Judges of the High Court expressly agreed with the finding of the Sessions Court that two persons had been falsely implicated. They also held that more persons had been falsely implicated and acquitted two of the twenty appellants before them, with the further observation "that most of the appellants had taken pact in the occurrence". I venture to think that it would have been better if the learned Judges could have given a more precise finding on the question of the number of assailants who had participated in the occurrence, and further in view of this observation it appears somewhat strange that they acquitted 15 out of the 20 appellants before them. Be this as it may, the learned Judges upheld the convictions of the other five appellants (who are the appellants before us because these appellants had been given specific roles in the occurrence by all the eyewitnesses. Now, according to Mr. Brohi, the learned Judges had held that the eye-witnesses were not witnesses of truth, therefore, learned counsel's submission was that the learned Judges could not pick up a part of the evidence of these very witnesses and base a conviction on it, merely because a part of this unreliable evidence was not of a general nature. The submission has the merit of logic, but it seems to me that the real difficulty in the case is that the learned Judges have made somewhat inconsistent observations about the ocular evidence.

103. I would, therefore, explain here that the case of the appellants in the High Court, as before us, was that the ocular evidence was riddled with discrepancies and falsehoods and was, so to say, saturated with enmity, because P. Ws. Rajju and Noora and one Anara had been convicted at the instance of the first appellant. The learned Judges accepted these submissions only to the extent of holding that the eye-witnesses were inimical on account of the section 10i, Cr. P. C. proceedings between the parties and that there were some exaggerations in the description of the occurrence by the eyewitnesses. Having given anxious thought to these findings, it seems to me that the learned Judges rejected the plea of enmity in the form in which it was advanced by the appellants, and they were of the view that the case was like most others in which the eye-witnesses were interested witnesses and had resorted to the sort of exaggerations which illiterate people resort to, therefore, they were of the view that the corroboratory evidence required to sift the grain from the chaff did not have to be of a high probative value. And, though the matter is far from clear, it seems to me that the extremely lengthy and gruelling cross-examination to which the eye-witnesses had been subjected may have led the learned Judges to reach the conclusion which they did. And here I have to observe with regret that the cross-examination of the eye-witnesses was almost a form of third degree, yet, bearing in mind C the fact that they were illiterate persons, they did not fare too badly in their C cross-examination, therefore, the cross-examination has damaged the case of the appellants, because the manner in which the eye-witnesses withstood the ordeal to which they were thus subjected suggests that, despite their enmity, they had perhaps described truthfully the manner in which their six relations bad been killed.

104. However, in view of the evidence that P. Ws. Rajju and Noora and one Anara had been convicted at the instance of the appellants, I agree with Mr. Brohi that strong corroboration of the ocular evidence was necessary. therefore, merely because the eye-witnesses attributed specific roles to the appellants before us, which were corroborated by the medical evidence, would not be sufficient to sustain the conviction of the appellants. But there was the evidence of the recoveries which had been accepted by the Sessions Court as reliable. The learned Judges however observed that they would not rely on it because the recovery witnesses were not disinterested witnesses. With respect, the question required a more careful examination.

105. The witnesses of the recoveries from the second and the third appellant were different from the recovery witnesses of the recoveries from the other three appellants, therefore, the case of these two sets of appellants stands on a different footing, except that the Investigation Officer in all the cases o was the same, namely P. W. Sikandar Hayat. The recoveries from the second and the third appellant were witnessed by P. W. Lal Shah and another and were proved by the Investigation Officer and P. W. Lal Shah. Now, the allegation of enmity against P. W. Lal Shah was that he was a cousin of one Karamat, who had contested the local elections against one Abdullah, but as the first appellant, who was a member of the Union Council, had supported Abdullah against Karamat, P. W. Lal Shah was inimical to the appellants. But P. W. Lal Shah denied the suggestion of enmity and stated that Karamat was only a collateral of his of the third or fourth degree. in view of the distant relationship of the witness with Karamat, it is not possible to believe that he would have given false evidence in a murder case against so many persons. In my humble opinion, the evidence of enmity against this witness is flimsy, and the view of the learned Judges is contrary to the law declared by this Court, therefore, I am satisfied with the evidence of the recoveries against these two appellants furnishes sufficient corroboration of the ocular evidence, and, with the utmost respect, I cannot agree with my learned brother's view.

106. However, the case of the other three appellants stands on a different footing altogether because the prosecution case of the recoveries against these appellants is based on the evidence of the Investigation Officer and of P. W. Raja. I am aware that despite a gruelling cross-examination, the appellants failed totally to show that the Investigation Officer was hostile to then. Another circumstance in support of the prosecution case is that the recoveries of the empties had been made on the day of the occurrence, and the empties had been forwarded to the fire-arm Expert before the recovery of the fire-arms from the first and the fourth appellant, and, as submitted by the learned Assistant Advocate-General, these circumstances were ignored by the High Court. But there is another circumstance on which my learned brother has rightly placed great stress. Why did the Investigation Officer select P. W. Raju as a recovery witness ? He was a highly interested witness, and I deprecate very strongly the practice, which has been growing in recent years. of associating such witnesses in the investigations. Further, although P. W. Raju was also facing a prosecution when he gave evidence, I will assume that the Investigation Officer did not know this and did not also know of the witnesses' earlier convictions. But the witness was also on tire register of Badmashes of the local police station, and it is difficult to believe that the Investigation Officer did not know this, therefore, the presumption would be that he had dishonestly associated P. W. Raju in the investigations. Now if this presumption is correct, it would be fatal to the evidence of the recoveries, and if this evidence is not accepted, in the circumstances of the case, it would mean that the prosecution had failed to prove the guilt of these appellants. However, the Investigation Officer had been subjected to a prolonged and merciless cross examination and, having examined that cross-examination carefully, I am of the view that he had, in associating P. W. Raja in the investigations, acted very foolishly, but not dishonestly. Therefore, I have reluctantly reached the conclusion that we cannot in this final appeal interfere- with the concurred finding of guilt against these appellants, Accordingly with the utmost respect, I am unable to agree with the judgment to be pronounced by Qaisar Khan, J. and I would dismiss the appeal.

ORDER OF THE COURT

107. In accordance with the view of the majority, we affirm the convictions and sentences of death to Roshan, Mutalli, Ghulam, son of Hassan, and. Nadir, son of Khawaja and the sentence of transportation of life awarded to Saee, Eon of Hassan, by the trial Court.

108. S. A. H. Appeal dismissed: