1983 P Cr (PLP)

The next point for consideration is whether appellant had fired the fatal bullet resulting in death of the deceased. On this point the prosecution have led ocular evidence, circumstantial evidence, and evidence of recovery of weapon of crime. The ocular evidence is furnished by Kaloo Mian (P. W. 7) an Muhammad Usif (P. W. 3). They have stated with one voice that whil they alongwith the deceased and the accused were sleeping in the carpe factory, they woke up on noise and saw that the accused was attempting to commit sodomy with the deceased. According to them as the deceased resisted; the accused took out revolver from folds of his dhoti, and fired a him prima facie their evidence appears to be unbiased. It is not motiva ted by any ill‑will or animus which is completely missing. In fact the accused was unknown to them prior to the incident. In the circumstances they have no motive to falsely implicate the accused. But when their evidence is examined in the light of the circumstance surrounding the incident it is rendered doubtful. The first circumstance which creates doubt in our mind is their choice to sleep in the factory. Both Kaloo Mian and Mohammad Usif are young boys of 18 years of age. They admittedly lived in the same `mohala'. Apparently they had no compelling reason to sleep in the factory in preference to their house on the night of incident. In the course of cross‑examination it was suggested to Kaloo Mian that they used to sleep there for immoral purposes. Although he has denied the suggestion, the possibility cannot be altogether ruled out that if the boys of their age prefer to sleep away from gaze o their family members in an isolated place like the factory without an apparent justification, they might do so for indulging in illicit activities. We therefore feel that their moral character, cannot be rated as above board. No safe reliance can therefore be placed on their word. It is an admitted position that the place where the above eye‑witnesses had slept is a hall covered with tin sheets. It is also admitted there was pitch darkness inside the ball and no source of light was available. In such a situation the boys could not have seen the face of the appellant when he jointed them at an odd hour of the night. Even prior to the incident he was not known to them and therefore they were not familiar with his face. It is also difficult to believe that they could have seen the movements connected with the alleged attempt of committing sodomy including taking out of the revolver by the accused from folds of his 'dhoti', when all this had admittedly happened in the cover of darkness. The next circumstance that we have noted as suspicious is that after commission of the murder at 2‑00 or 3‑00 Clock at night, the accused instead of running away to place of safety, chose to stay back until appearance of the day light. In our opinion the course chosen by the appellant is not consistent with ordinary human conduct which would have rather forced him to take the advantage of the cover of dark ness and secure to himself a place of safety. The doubts raised by above circumstances become deeper and even graver when we find that the story of the incident allegedly brought to the notice of the deceased's parents does not get support from them. According to both the eye‑witnesses, the parents of the deceased, were apprised fully of the circumstances in which the death of their son had occurred. The prosecution have produced in evidence both Sultan (P. W: 1) father of the deceased's boy and the latter's mother Mst. Belwa (P. W. 2). The material portion of the evidence of the complainant (father of the deceased) is to the following effect :‑ It was morning prayer time when one person whose name I do not remember came to me and informed that my son Meer Qasim was lying dead in the factory of Carpet, I then went to that place where my son used to go for apprenticeship in the factory. I found him lying dead with fire‑arm injuries on his body. Nobody told me how, he was killed and by whom. I went to police station and lodged my report about the murder. Even though this evidence given by the complainant in Court is entirely different from his version in the F.I.R. the prosecution apparently accepted his Court version in preference to the material contained C in the. F. I. R. This explains why the A. P. P. (Mr. Imdad Kazi) who was Incharge of the case and had examined the complainant in the Court did not bother to declare him hostile or confront him with what he had earlier stated in the F.I.R. We have, in these circumstances no rea son to doubt the complainant's court evidence. Even if his earlier statement contained in the F. I. R. is correct, it cannot be taken into consideration as substantive piece `of evidence. It is used either for corroboration or for contradiction. The question of corroboration simply does not arise, in view of the complainant having completely resiled from the version given in the F. I. R. Since the complainant was not confronted with the F. I. R. even contradictions, if any, between the complainant's Court evidence and the F. I. R. have not been brought out. Coming to the evidence of the deceased's mother Ust. Belwa (P. W. 2), it is found that she too has deposed more or less in the same terms in which her husband (complainant Sultan) has given evidence: Thus both the parents of the deceased who should rather be more interested than any one else in seeing the assailant responsible for their son's murder punished have not supported the eye‑witness. They have said nothing to implicate the accused. On the contrary they have shown complete ignorance about real culprit who perpetrated the heinous crime of their son's murder. They are neither related nor in any way connected with the accused. There is also no indication on record what made them change their original version. In absence of such material, the only presumption that can be drawn will be that they have given true evidence. Their evidence may are may not be true, it does create doubts which are clearly fatal to the prosecution case. Our attention has also been drawn to certain contradictions appearing in the evidence of the aforesaid two eye‑witnesses. According to P. W. Muhammad Usif even after the accused left the factory premises they did not go and inform anybody about the incident. He says it was accused lmdadullah himself who informed the parents of the deceased. In the first place it is incredible that appellant himself would apprise the deceased's parents of the incident. Secondly neither of the parents supports this story. Again if he really brought the incident to their notice, the question would arise in what words he described it. Did he confess to them having killed their boy? But it is not the prosecution case that the accused made extra‑judicial confession to anybody muchless to the deceased's parents. Alternatively he might have told them that either the culprit was unknown or some specified person was responsible for the murder. In this connec tion the admission made by P. W. Muhammad Usif that as soon as parents of the deceased arrived at the vardat, they started beating him appears to be significant. Of course he has not clarified why he was subject to beating. It is however his own statement that parents of the deceased came to the vardat on receiving information from the accused. It seems as if the accus ed had given them the name of Mohammad Usif being responsible for the murder and that is why they had severely beaten this witness. In any case this aspect of the case which is not free from doubt cannot be easily overlooked. On the other band Mohammad Usif a contradicted by Kaloo Mian, another eye‑witness who makes a definite statement that after departure of the accused from the factory he and Mohammad Usif both had gone to inform the deceased's parents. He has also not referred to the alleged beating given to Mohammad Usif by them. Mohammad Usif and Kaloo Mian are also inconsistent as to how they went to sleep in the factory. The evidence of Kaloo Mian shows as if all the three of them namely, he himself, Usif and Mir Qasim went together to sleep in the factory. How ever Mohammad Usif has given a totally different story. He states that he had returned after seeing the last show of the movie, and as he did not succeed in having the door of his house opened despite his repeated knocks at the door, he happened to meet Kaioo Mian in the street, who offered to sleep with him in the factory. The witness readily accepted the offer and this is how they went and slept together in the factory. As for the deceased Mir Qasim, he has said., that he joined them subsequently. As pointed out earlier, these details given by P. W Usif do not find mention in the statement of Kaloo Mian. The learned defence counsel is therefore correct in arguing that the eye‑evidence is discrepant and hence unreliable. It does not find corroboration from any source. On the contrary the circumstances discussed above have completely belied it. In this connection reference may be made to Nazir Muhammad alias Nazir Ahmad v. The State (P L D 1974 Kar. 274). It was held :‑ It may, however, be observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely, the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been repeatedly disapproved by the superior Courts." In support of the view expressed above, their Lordships placed reliance on Pir Mohammad Khan v. The State (P L D 1970 Kar. 399.), wherein it was observed :‑ With regard to the evidence of these witnesses the learned Additional Sessions Judge observed that they had no grouse against the appel lants and their evidence was substantially corroborated by circum stances and independent evidence and therefore they could not be disbelieved. We feel no hesitation in saying that the treatment of the evidence of the witnesses was rather artificial. Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without consid ering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief." Similarly in the case reported as Bashir Ahmad v. Muhammad Azam (P L D 1969 S C 469). it was pointed out by the Supreme Court that even if witnesses are not related to the deceased "it does not mean that they are witnesses of truth. Ultimately the said test of the veracity of a witness is the inherent merit of his own statement". In view of the principle enunciated in the above authorities, the evidence of the two eye‑witnesses examined in the instant case cannot be believed as true merely because they have no motive to falsely implicate the accused. It is clear from above discussion that they have not been able to stand the test of cross‑examination. Some very glaring contradictions have been divulged in their evidence, which reflect on their veracity. Besides, the circumstances surrounding the whole incident which have been examined in the foregoing paragraphs in some detail have also given rise ‑to grave doubts about the truth of the eye evidence. P. W. Abdul Rashid (P. W. 4) has been examined by the prosecution in an attempt to corroborate the ocular evidence. No doubt this witness who is brother of the deceased boy, has corroborated the eye‑witness inasmuch as that he had taken the appellant Imdadullah to the factory for sleeping purpose, and that in the following morning he learnt from Kaloo Mian that his brother Mir Qasim was murdered by the accused. There is nothing in his evidence to show why the accused committed the murder of his brother. His evidence is absolutely silent in this regard. He does not say that he was told that accused had attempted to commit sodomy on Mir Qasim or that on the latter having resisted the same he was shot dead by the accused. This witness admits that the appellant is not friendly with him nor does he possess any knowledge as to where he is em ployed. These admissions on his part clearly indicate that there had been only casual acquaintance between the two. The nature of their relationship casts a shadow of doubt on the whole story that P. W. Abdul Rashid responded to the accused's call at an odd hour of the night and went all the way long to get him sleeping space in the factory. It is also doubtful that he would pay no heed to the boys' resentment and would on the contrary persuade them to accommodate the accused. Thus the evidence of Abdul Rashid is not free from doubt and therefore cannot be relied upon to corroborate the ocular evidence which, as pointed out above, itself has not inspired confidence and is held as doubtful. Lastly there is evidence of recovery of the revolver from accused's possession. The S. H. O. Mohammad Sarwar (P. W. 10) and moshir Shakir (P. W. 5) have proved by their evidence the arrest of accused from a drain in the Burmee Colony and recovery of revolver from his possession. According to them revolver contained two bullets and four empties. As discussed above the eye‑evidence being doubtful, the evidence of recovery of the revolver is of no consequence. We were informed in Court by the learned State Counsel that accused had been convicted separately for possession of unlicensed revolver and sentenced to imprisonment which he has already undergone. Since no appeal was prefer red from the said conviction for the unlicensed possession of the revolver the accused obviously accepted the Court's verdict. Accordingly we have no doubt that the revolver in question was recovered from accused's possession. What we are concerned with in this case is whether the accused had used the revolver in committing the murder of Mir Qasim. No crime empty was secured from the vardat. The matching of the empties found in the chamber of the revolver at the time of its recovery from the accused does not prove that they were empties at the vardat. According to the evidence on the record, only one shot was fired. But the presence of four empties in the chamber of the revolver remains unexplained, raising doubt as to the place other three were fired. According to the doctor he had extracted a piece (metallic head) of bullet from the wound of the deceased and had forwarded the same to the police. It appears this piece alongwith the revolver and other bullets and empties were sent for opinion of the expert whose report (Exh. 22) is positive, indicating that all the four empties and the piece of bullet were fired from the said revolver. So far four empties are concerned, they do not link the accused with ‑the commission of the offences. Of course a piece of bullet which the medical officer has described as a metallic head of bullet was extracted from the wound of the deceased. We had sent for the tiny piece in court and examined it carefully. We did not find any mark on it as the empties carried. We also did not notice any trace of other evidence showing that the said piece was part of the bullet fired from the revolver in question. The expert has, however, given his opinion that it was fired from the said revolver. But to view of the ocular evidence having been disbelieved, hi opinion taken in isolation is of no help to the prosecution. May be, the eye‑witness Usif who according to his own admission, was beaten by the deceased's parents had fired the shot by stealthily taking the accused's revolver in darkness of the night. In fact such question was put to him in cross‑examination, even though he answered the same in the negative. After considering the whole mass of material available on record and hearing the arguments advanced at bar, we are inclined to feel that, the prosecution have failed to bring guilt home to the accused beyond any reasonable doubt. The benefit of doubt always goes to accused. Accor dingly we accept the appeal and acquit the accused. Consequently the reference is rejected. We direct that accursed shall be set at liberty forth with if he is not required in any other case. Appeal accepted