P L D 1993 Supreme Court 251 (PLP)

SAJJAD ALI SHAH, J.‑‑Appellant Munawar Ali was put on trial alongwith Ashiq, Hidayat and Arif for offence under section 302/34, P.P.C. in the Court of learned Additional Sessions Judge, Kasur for committing murder of Manzoor ‑Hussain in furtherance of their common intention. Trial Court convicted all the four of them and sentenced each for life imprisonment and fine of Rs.3,000 or in default R.I. for one year. Lahore High ('(;urt vide judgment dated 28‑11‑1990 dismissed appeal of Munawar and Arif giving them benefit of section 382‑B, Cr.P.C. and acquitted Hidayat and Ashiq on the ground that the case against them was doubtful. Both convicts filed petition in this Court for leave to appeal which was refused in the case of Arif and granted in the case of Munawar on the grounds that he had no motive and there was no corroboration of ocular testimony against him.

2. Prosecution case briefly stated is that incident took place on 7‑10‑1985 at 12‑15 p.m. in front of shop of Muhammad Sadique vegitable seller in the bazar of Kot Mirbaz Khan in Kasur..Deceased Manzoor Hussain alias Baggar was sitting on the bench outside the shop of Muhammad Sadique, when appellant and his three co‑accused named above appeared all armed with carbines. They raised Lalkara that Manzoor Hussain was to be killed as revenge of murder of Muhammad Sadiq, Manzoor got up but Arif fired at his chest. Manzoor tried to run but fell down and Hidayat fired shot, which hit him below right ear. Munawar fired shot, which ‑hit him on left shoulder and then Ashiq fired shot, which"hit him on abdomen. Lastly Munawar fired second shot which hit Manzoor on chest. Incident was witnessed by complainant Muhammad Hussain, Khushi Muhammad, Mairaj Khalid and Asghar. Manzoor died at the spot. Complainant proceeded to police station. for report leaving behind other witnesses to guard the dead body. S.I. Muhammad Aslam of P.P. No.8, Kagur met complainant on the way and recorded his statement. Motive as stated is that Sadiq brother of Ashiq, Hidayat and Arif (co‑accused in the trial Court) was murdered in which case Manzoor and six others were challaned but they were bailed out. On that account revenge of murder of Sadiq was taken.

3. S.I. Muhammad Aslam after recording statement of complainant sent it to the police station for registration of formal F.I.R. He visited place of occurrence and examined dead body and then sent it to the hospital for post mortem examination. He recovered blood‑stained earth and crime bullet from the spot and got site plan prepared. He recorded statements of witnesses and took other steps in the investigation. He handed over investigation to S.H.O. Abdul Shakoor‑of P.S. City Kasur. During investigation appellant and other co -accused were taken in custody and they with the exception of Ashiq produced their carbines and two live cartridges each. After completion of investigation challan was presented in the Court. 4. in the trial Court, prosecution examined 16 witnesses in support of its case. P.W.1 Jamat Ali identified dead body in the hospital. P.W.2 Sanaullah signed recovery memo. Exh./P.A. whereby clothes of deceased and Vial were handed over to 1.0. P.W.3 Constable Muhammad Aslarn is corpse‑bearer. P.W.4 H.C. Allah Bux, Head Muharrir registered formal F.I.R. and kept in custody in Malkhana sealed parcels. P.W.5 Ghulam Nabi is recovery witness of weapon and live cartridges from Hidayat vide memo. Exh.P.C. P.W.6 Khurshid Muhammad is recovery witness of weapon and cartridges of Arif. P.W.7 Habibullah F.C. brought report of complainant to P.S. for ‑registration of formal F.I.R. ‑ and he also delivered sealed parcels at the laboratories safely. P.W.8 Muhammad Ahmad Anwar is draftsman, who prepared site plans Exh. P.E. and PEC/1. Ocular evidence is furnished by three witnesses namely P.W.9 complainant Muhammad Hussain, P.W.10 Khushi Muhammad and P.W.11 Meraj Khalid. P.W.12 Mehr Din attested recovery memo. Exh. PJ. whereby Carbine P.11 was recov i ered from the house of appellant Munawar alongwith two five cartridges. P.W.13 is Dr. Wahid Bakhsh Bhatti, who conducted post‑mortem examination. P.W.14 Inspector Abdul Shakoor and P.W.15 S.I. Muhammad Aslam investigated the case. P,W.16 S.H.O. Haq Nawaz arrested Ashiq on 11‑10‑1985 on secret information by raiding the house. Other witnesses were given up as unnecessary. Prosecution also produced reports of ballistic expert and chemical examiner.

5. Appellant and his co‑accused in the trial Court denied prosecution allegations and proclaimed false implication in their statements under section 342, Cr.P.C. Arif stated that because in the murder case his brother Sadiq deceased Manzoor was named as accused, relatives of deceased falsely implicated him in this case, when he was not present at the place of occurrence at the time of incident. He also stated that deceased had many enemies and there was conflict between deceased Manzoor and Sheri, who was also named as accused in the murder case of Sadiq. Hidayat and Ashiq co‑accused in this case in the trial Court took same stand as their brother Arif. Appellant Munawar in his statement under section 342, Cr.P.C. stated that he had been involved falsely in this case because deceased Manzoor had committed Zina with daughter of Khushi Muhammad and on that account his (appellant's) father condemned father of deceased in the open meeting and that was reason for complainant to falsely implicate appellant. Secondly appellant stated that he was not related to the other co‑accused brothers and therefore had no motive to kill deceased. Thirdly appellant stated that he did not reside in Kasur and did not participate in the incident and produced defence witness Raja Muhammad Nawaz Khan.

6. Trial Court believed ocular evidence by holding that P.W.9 complainant Muhammad Hussain had seen, the incident as he had given detailed account. of incident in F.I.R. which was lodged without delay. Complainant was corroborated by two other eye‑witnesses P.W.10 Khushi Muhammad and P.W.11 Meraj Khalid, who are not related to the complainant. This evidence was supported by medical evidence and motive. Additionally reliance was placed on evidence of recovery of weapons. Trial Court convicted all accused put on trial and sentenced them as stated above.

7. After evaluation of evidence in appeal High Court held that complainant Muhammad Hussain, father of deceased was present at the sp and saw the incident. He was Qanungo/Girdawar and explained his present on the day of incident at the spot as on that day he had taken one day's leave go to Lahore where his daughter was admitted in hospital. His evidence w further corroborated by P.W.10 Khushi Muhammad and P.W.11 Meraj Khali who are not related to the complainant and their presence'at the spot is w accounted for. Both these witnesses demonstrated moral courage by giving evidence when all other persons who were present at the spot at the time incident ran away and even shops were closed. P.W.14 S.H.O. Abdul Shake admitted in cross‑examination that persons from the locality were not prepar to become witnesses.

8. High Court was also deeply impressed by the evidence of motive deceased Manzoor who was an accused in connection with murder Sadiq brother of Hidayat, Arif and Ashiq was released on bail and came from jail (in the day of incident. This fact as such was not denied by accu persons in the trial Court that deceased Manzoor was accused in the. case murder of Sadiq and had come out from jail on the day of incident, High Co had to look for corroboration for the reason that ‑ocular evidence was conflict with medical evidence in respect of injuries allegedly caused to deceased by Hidayat and Ashiq, According to prosecution case Hidayat fired shot which hit deceased below his right ear. Postmartem report showed that injury No.6 on the face was on the left side. Pellets recovered from the d body were not linked with carbine recovered from Hidayat. Crime em recovered from the spot did not match With carbine of Hidavat. Similarly of the prosecution is that Ashiq fired shot which hit deceased on his abdomen Post‑mortem report did not show any injury on abdomen and four pet recovered from abdomen had entered through entry wounds at other pla Secondly no weapon was recovered from Ashiq. In such circumstances f Court gave benefit of doubt to both Hidayat and Ashiq and acquitted them.

9. High Court dismissed appeal of Arif and maintained his conviction and sentence for the reason that prosecution case stood proved against him the basis of ocular evidence; medical evidence, motive and circumstantuial evidence of recovery of carbine from him with positive report of ballistic e that crime empty recovered from the spot matched with crime we recovered from him. This Court at petition stage refused to grant leave in case of Arif and dismissed his petition.

10. It is urged before us that High Court also dismissed appeal . Munawar Ali although his case is at par with Hidayat and Ashiq who have been acquitted by the High Court. In this contest it is submitted that on crime empty was recovered from the spot which according to the report ballistic expert matched with carbine recovered from Arif. We have an evidence on the record against appellant Munawar in the light of contention the counsel mentioned above. Reasons assigned by the High Court, dismissing appeal of appellant Munawar are that as alleged by the prosecution he had fired two shots as claimed by the complainant, who had no particular reason to falsely implicate him. It is, therefore, observed by the High Court that in respect of injuries to the deceased attributed to the appellant, there is corroboration in medical evidence. We do not feel inclined to agree with the reasons assigned by the High Court. In our view appellant Munawar had no motive to kill Manzoor as the remaining three co‑accused put on trial as their, I B brother Sadiq was murdered in which case Manzoor was named as accused and was released on bail and had come out from jail on the date of incident. Appellant Munawar is not related to Hidayat, Ashiq and Arif.

11. Medical evidence is corroboration to show that injuries were caused in 1 a particular manner , with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but, medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries. Question of medical evidence as corroboration came up for consideration before this Court in the case of Machia and. others v. State PLD 1976 SC 695 and it was observed that medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration. because danger in relying on, ocular evidence in such cases, is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that medical evidence is consistent with the ocular evidence, may furnish some limited corroboration of the ocular evidence. if it can lead to the inference that the eye‑witnesses have spoken the truth. In the case of Shamsherwan v. State 1985 SCMR 34 it was held that medical evidence is merely corroborative evidence but conviction cannot be recorded merely on basis of presence of injuries on dead body without there being any evidence on record that accused had caused the same.

12. Legal position is settled that in a criminal trial, when an eye‑witness compromises his integrity and makes a false statement by way of addition or improvement in his deposition and on that account one or more accused in that case are acquitted, then in such circumstances great care and caution is to be exercised in dealing with evidence of such witness for the purpose of evaluation in respect of conviction of other accused and is to be accepted only when it is supported by independent corroboration. In this context reference can be made to the case of Ghulam. Sikandar and others v. Marnaraz Khan and others PLD 1985 SC 11 in which this Court has held in unequivocal terms that where it is found that witness has falsely implicated one accused, ordinarily he would not be relied upon with regard to the other co‑accused in the same transaction unless his testimony is corroborated by very strong and independent circumstances, regarding each one of the other accused. In the instant case three assailants were armed with carbines and the crime‑ empty recovered from the spot matched with carbine recovered from Arif, hence in the absence of positive finding of fire‑arm expert against appellant reliance cannot be placed on medical evidence to prove that specific injuries attributed to E Munawar were caused by him. In support reference can be made to Sarwar and others v. State PLD 1987 SC 624.

13. Lastly High Court has observed* that appellant did not pick up courage to Make statement on oath under section 340(2), Cr.P.C. Be that as it may, it is not open to draw adverse inference if accused declines to make statement in is defence on oath. Appellant Munawar produced defence witness Raja Muhammad Nawaz, who stated that appellant was working with him in Chakwal and was produced by him before police after the incident. But High Court held that his evidence did not inspire confidence and it was not believable that appellant would go as far as Chakwal to do labour work for a petty amount of Rs.600 p.m. when he could easily earn much more money by labouring in city. In this context we would like to say that it is the duty of the prosecution to. prove case against accused beyond shadow of reasonable doubt and prosecution cannot take benefit from weakness of defence plea. In this I case, we are of the view that against Appellant prosecution has not proved case I beyond doubt hence we give him benefit of doubt and set aside his conviction and sentence. Appeal is allowed and in the result appellant is acquitted. He may be released at once, if not wanted in any other case. i N.H.Q./M‑1717/S Appeal allowed.