ALI SHER Versus THE STATE

1. ANWARUL HAQ, C. J.-In this case leave to appeal was granted by this Court on thin 18th of April, 19'75, to examine whether the acquittal of respondents Muhammad Hussain, Talib Hussain and Abdul Hameed of the charge of murdering appellant Ali Sher's son-in-law Suleman, was in accordance with established principles of administration of criminal justice. The petition for leave to appeal was dismissed as against Khadim Hussain, who had also been convicted by the trial Court alongwith the three respondents named above, and sentenced to undergo transportation for life.

2. At the hearing of the appeal. It transpired that Mr. D. M. Arb Advocate, who had appeared for the appellant at the leave stage, had died. Although notice was sent to the learned Advocate-on-Record, but he ha not appeared to prosecute the appeal. The appellant is also absent. However, we have decided to proceed with the hearing of the appeal on merit with the assistance of the learned Assistant Advocate-General, Punjab, and the learned counsel appearing for the respondents, in accordance with the practice and procedure outlined by this Court in Farid v. Aslam and 4 others (1), in. matters of appeals against acquittal.

3. (1),PI, D.1977 S C 4

4. The incident, resulting in the death of Suleman, deceased, occurred on 11-7-1969 at 12.00 noon in the area of Chak No. 354 W. B., at a distance of four miles from Police Station Dunyapur in Tehsil Lodhran of the Multan District. The F: I. R. was lodged by appellant Ali Sher (P. W. 9) at 2-30 p. m. He stated that differences had arisen between the parties owing to the share of the water of the tube-well and also due to the fact that one Mst. Nazeeran, a niece of accused Khadim Hussain, had developed illicit relations with one Muhammad - Yousuf, a nephew of the deceased. Ali Sher alleged that at the relevant time Suleman deceased was sitting under a tree alongwith Nazeer Ahmad (P. W. 12) and Din Muhammad (P. W. 14) if front of the house of Nawab (P. W. 11), when ten persons including the three respondents arrived at the spot, variously armed. Khadim Hussain, Talib Hussain and Muhammad Hussain were carrying hatchets ; whereas respondent Abdul Hameed was armed with a Sua Rukan Din was empty handed, and the remaining accused persons were carrying Sotas and shouting Lalkaras. Talib Hussain, Khadim Hussain and Muhammad Hussain gave hatchet blows to Suleman, while accused Abdul Hameed caused him injuries with his Sua. Witnesses Nazeer Ahmad and Din Muhammad were also injured during the incident, and the deceased and witness Din Muhammad had caused injuries to the three accused persons, namely, Talib Hussain, Muhammad Hussain and Muhammad Tufail. The deceased expired at the spot.

5. The respondents were arrested on the 13th of July, 1969, and at the instance of Talib Hussain and Muhammad Hussain blood-stained hatchets were recovered on the same day by Investigating Officer Muhammad Hayat (P. W. 14) in the presence of Abdul Latif (P. W. 7). Human blood was found on both the hatchets. No recovery could be effected at the instance of respondent Abdul Hameed.

6. While pleading not guilty at the trial, respondents Muhammad Hussain and Talib Hussain raised a plea of self-defence, asserting that they had been attacked by the deceased Suleman alongwith witnesses Nazeer Ahmad and Din Muhammad when they were returning to their houses.

7. At the trial, ocular evidence of the incident was given by appellant Ali Sher appearing as (P. W. 9), and by Mst. Safia,(P. W. 10), Nawab (P. W. 11), Nazeer Ahmad (P. W. 12) and Din Muhammad (P. W. 13). As already stated, Nazeer Ahmad and Din Muhammad were injured during the incident, and, therefore, their presence at the spot could not be doubted. Although the witnesses were related to the deceased, yet the trial Court accepted their testimony, and rejected the defence version. The learned trial Judge, however, did not place reliance on the incriminating recoveries as the same were not supported by the non-official witness Abdul Iatif (P. W. 7). The learned trial Judge also took note of the nature of the Wuries suffered by the deceased, which included punctured wounds by a Sua attributed to respondent Abdul Hameed. He convicted only four persons, namely Muhammad Hussain, Talib Hussain, Abdul Hameed and Kbadim Hussain, but acquitted the remaining six accused persons.

8. The appeal filed by the convicts was accepted by a learned Judge of the Lahore High Court by his order dated the 16th of April, 1974, mainly on the ground that all the eye-witnesses were related to the deceased and were inimical to the accused, and, accordingly, their testimony could not be accepted without satisfactory corroboration, which was not forthcoming. The learned Judge also observed that there was a conflict between the ocular testimony and the medical evidence inasmuch as the two injured witnesses had stated that they had given Bang blows to Talib Hussain and Muhammad Hussain as well as Tufail accused, but the first named two persons were found to have sustained incised wounds, thus showing that to this extent the version of the two injured witnesses was not correct. Finally, the learned Judge was also influenced by the fact that the case of the convicts before him was not distinguishable, in any manner, from that of the acquitted accused, who were not less than six in number.

9. In support of this appeal, it is submitted by Mr. Riaz Ahmad, the learned Assistant Advocate-General, appearing for the State, that the learned Judge High Court was in error in thinking that there was no corroboration available as against the three respondents, namely, Muhammad Hussain, Talib Hussain and Abdul Hameed, inasmuch as Muhammad Hussain and Talib Hussain bore injuries as a mark of their participation in the incident ; and the medical evidence showed that the deceased had suffered sua injuries, which were consistently attributed to respondent Abdul Hameed. Mr. Riaz Ahmad also submits that the incident having been admitted by the defence, the High Court was under an obligation to examine whether any right of private defence had accrued to the respondents ; and if so whether it had not been exceeded, but the learned Judge has failed to advert to this aspect of the matter. He submits that the learned Additional Sessions Judge had rightly rejected the plea of self-defence, as the very basis of this plea, namely, that the accused persons were returning from the police station after lodging a report against the complainant party, was found to be false, as the previous report of the accused persons had been filed on the 10th of July, 1969, whereas the present occurrence had taken place on the next day, i. e. the 11th of July, 1969. Finally, it is submitted that the evidence of recoveries of the blood-stained hatchets has also been rejected by the High Court on untenable grounds, and that it provided very strong corroboration of the ocular account given by the prosecution witnesses.

10. On behalf of the respondents, it is submitted by Mr. Iqbal Kaukab that as all the prosecution witnesses were interested and hostile, their evidence could not be accepted without satisfactory corroboration, specially because they had implicated all the male members of the family of the accused. He contends that even the injured witnesses cannot be relied upon as they have not given a correct version of the injuries caused to Muhammad Hussain and Talib Hussain respondents. The learned counsel further contends that the defence version given by the accused cannot form the basis of their conviction, and, therefore, the prosecution case should stand or fall on its own strength. He contends that even if injuries on the persons of Muhammad Hussain and Talib Hussain be held to provide corroboration as to their participation in the incident, yet no such corroboration is available as against respondent Abdul Hameed, who did not sustain any injury during the incident, and had no motive to take part therein.

11. Mr. Kaukab Iqbal has referred us to Muhammad Fazlul Karim v. The State and another (1), Sadiq v. The State (2), Wali Muhammad v. The State (3) and Muhammad Ismail v. Khushi Muhammad etc., (4), for the proposition that even if the defence version is found to be unconvincing, it cannot lead to a conviction of the accused person, and the case against him must still proved by the prosecution. We consider that there can be no cavil with this proposition, and we find that the conviction recorded against the respondents by the learned trial Judge was not based on his rejection of the defence version, but on the positive acceptance of the ocular account of the incident given by the prosecution witnesses.

(1) P L D 1964 S C 792 . (2) P L D 1967 S C 356

(3) 1969 S G M R 612 (4) P L D 1974 S C 37

12. After a careful consideration of the evidence brought on the record, we are left in no doubt that this was an incident which took place in broad day light in front of the house of Nawab (P. W. 11), and the eye-witnesses, including the two injured witnesses Nazeer Ahmad and Din Muhammad, were the natural witnesses of the occurrence. As the witnesses were variously related to the deceased person, and there was a background of enmity between the parties, the learned trial Judge was right in looking for corroboration, and he found the same in the presence of injuries on the persons of respondents Talib Hussain and Muhammad Hussain, besides the acquitted accused Muhammad Tufail, whose case is not now before us. The defence version put forward by Talib Hussain and Muhammad Hussain were rightly rejected by the trial Court, and it is unfortunate that the learned Judge in the High Court did not advert to the same. The presence o injuries on the person of Muhammad Hussain and Talib Hussain provided clear corroboration of their participation in the incident. The medical evidence showing that the deceased had suffered incised wounds on his neck, back and top of the head clearly indicated that hatchets had been used. Left parital bone and part of the right parital bone had been cut, thus showing that heavy sharp-edged weapons had been used. There was thus corroboration available against Muhammad Hussain and Talib Hussain by virtue of the presence of injuries on their persons, and also because of the nature of incised injuries found on the deceased.

13. Further corroboration was available in the recovery of the bloodstained hatchets at the instance of these two respondents. It is true that Abdul Latif (P. W. 7) had tried to undo the effect of these recoveries by making damaging concessions in his cross-examination, when he stated that the hatchets were not blood-stained at the time he saw them being recovered. He also stated that the hatchets were not made into sealed parcels. In his examination in chief he had made exactly contradictor statements, fully supporting the fact of the recovery of blood-stained hatchets, and their having been made into sealed parcels. If the evidence of Abdul Latif is rejected, on account of the clearly false statements made by him in cross-examination, there was still the evidence of the Investigating Ofce Muhammad Hayat (P. W. 14), supported by the relevant recovery memos. We find that in cross-examination the only suggestion made to this Office was that he had recovered the blood-stained hatchets when they were lying in the Balthak of Nawab in the open, but he repudiated that suggestion. From a persual of his evidence, we are fully satisfied that the recoveries were, in fact, genuinely made ; that the hatchets recovered at the instance o respondents Talib Hussain and Muhammad Hussain were stained with blood at the time of recovery ; that they were made into sealed parcel at the spot and on chemical examination it was found that they were stained with human blood. It it clear to us that the learned Judge in the High Court fell into serious error in ignoring the effect of these incriminating recoveries.

14. As to the participation of respondent Abdul Hameed, it is true that he did not sustain any injuries during the incident, but the fact that the deceased had sustained three punctured wounds, clearly caused by a weapon like a sua. Provided satisfactory corroboration of the ocular account against Abdul Hameed. Here again the learned Judge in the High Court was in error in ignoring the effect of this part of the medical evidence.

15. The contention that the nature of the injuries sustained by the two accused persons is not in accordance with the ocular account given by the injured witnesses Nazeer Ahmad and Din Muhammad does not, in any manner, negative the prosecution case against the respondents Talib Hussain and Muhammad Hussain for they themselves admit their participation in the incident, although giving a different version thereof.

16. Relying upon the minority observations in Mehr All and others v. The State (1), a point was sought to be made by Mr. Kaukab Iqbal that as the location or position of the prosecution witnesses was not shown in the site plan prepared by the Investigating Officer, we must, therefore hold that their presence at the spot was doubtful.

17. We have perused the observations appearing in the minority judgment delivered by Cornelius, C. J., in the case referred to by Mr. Kaukab Iqbal, and we are of the view that those observation have relevance only to the peculiar facts of that case, and do not purport to lay down any rule of general application. The mere omission of the position of the prosecution witnesses in the site plan cannot per se lead to an irresistible inference that the witness were not present, when it is found that the presence of the witnesses at the time of the incident and at the place indicated would be natural in the circumstances. In the present case, the occurrence had taken place in the lane in front of the house of Nawab, the presence of relations of the deceased was only natural, and even if the Investigating Officer has omitted to indicate: their position in the site plan, it cannot lead to an inference that they were not present.

18. For the foregoing reasons, we are clearly of the view that learned Judge in the High Court fell into serious error in setting aside the convictions and sentences recorded against the three respondents, namely, Muhammad Hussain, Talib Hussain and Abdul Hameed by the trial Court for the murder of Suleman, under section 302 of the Pakistan Penal Code read with section 34 thereof. Besides the ocular evidence there was satisfactory corroboration available against the three respondents to confirm beyond doubt that they have participated in this crime. We would, accordingly, accept this appeal, set aside the acquittal of the respondents and restore the convictions and sentences recorded by the trial Court on the 5th of July, 1971.

19. At the conclusion of arguments, Mr. Kaukab Iqbal submitted that in case we were inclined to accept this appeal, we should grant to the respondents the benefit of the provisions of section 382-B of the Criminal Procedure Code, for the reason that the respondents were arrested in 1975 under the orders of this Court, when leave to appeal against their acquittal was granted.

20. The section referred to by the learned counsel contemplates that : "Where a Court decides to pass a sentence of imprisonment on an account for an offence, it may take into consideration the period, if any, during which such accused was detained in custody for such offence". It would appear that although the section is not attracted, in strict terms, to the present cage, a we are not passing an original order of conviction and sentence, but mere restoring the judgment of the trial Court, yet the benefit contemplated by this section must clearly be made available to the respondents, who have been in custody for several years under the orders of this Court during the pendency of this appeal against acquittal. We, accordingly, direct that while computing the period of total imprisonment, which the respondents have to undergo in connection with the sentence of transportation for life imposed upon them by the trial Court, the period of their detention in custody under the, orders f this Court shall be duly taken into account.

(1) 1968 S C M R 161

21. S. A. H. Appeal dismissed.