1976 P Cr (PLP)

(6) Two firearm wounds of entry ' x ' each, just along injury No.

5. Blackening present. (7) Two firearm wounds of entry each ' x ' on the right side of scrotum. Blackening present. (8) Four firearm wounds of exit each measuring ' x on the posterior and left side of scrotum. (9) Four firearm wounds of entry each measuring ' x ' on the inner side of uppermost part of left thigh, in continuation of scrotal injuries, over an area of 2' x 2'. (10) An abrasion ' x ' on the prominence of right cheek. There pellets were recovered from the scrotum and one from the right side of chest. Eighth and 9th ribs on left aide were found fractured at the back. Peritoneum, diaphragm, stomach, liver and small intestines were punctured. In the opinion of the doctor, death was due to shock and haemorrhage. All the injuries except No. 10 were caused by firearm and were ante‑mortem. Injuries Nos. 3 and 4 were sufficient to cause death in the ordinary course of nature. The doctor further opined that the death had occurred within half to two hours after receipt of injuries. In cross‑examination, the doctor stated that the deceased must have remained alive at least for half an hour after receiving the injuries. He further stated that injuries Nos. 3 to 9 were fired from front and that these injuries could have been caused when the deceased was lying on the ground and the assailant was standing.

7. To support its case the prosecution examined thirteen witnesses in all, its main stay being the ocular testimony of Alam Sher, Mst. Bakhat Bhari and Falak Sher P. Ws.

8. The appellants pleaded not guilty to the charge." They however, admitted their relationship inter se. They also admitted that Muhammad (father of Muhammad Ramzan appellant) was murdered about fifteen or sixteen years prior to the occurrence and Muhammad Sher deceased of this case and some others were prosecuted for that murder, but were acquitted. Muhammad Ramzan appellant added that Malook. P. W. 6 (brother of Muhammad Sher deceased and the complainant of this case), a co‑accused of Muhammad Sher deceased, had fired the effective shot on his father while the other two accused, namely, Muhammad Sher deceased of this case and his brother Fateh Sher P. W. (since dead), had not inflicted any injury to his father. Ata Muhammad appellant produced a copy of the Register Nikah khani and a copy the birth‑entry of Mst. Bakht Bhari. The first‑mentioned document shows that the Nikah of Muhammad Sher deceased was performed with Mst. Sahib Khatun, mother of Mst. Bakht Bhari P. W., on 26th March 1957, and the birth‑entry (Exh. D. D.) shows that Mst. Bakht Bhari, daughter of Muhammad Sher deceased, was born on 28th December 1950. These documents were produced to show that the deceased had kept Mst. Sahib Khatun in his house for a long time without any. Nikah. No other evidence was led in defence. The learned trial Judge disbelieved Falak Sher P. W. and excluded his statement from consideration He believed the testimony of Alam Sher complainant and Mst. Bakht Bhari P. W. and found its corroboration in the medical evidence, and on the basis of this material found the appellants guilty of murder. He, however acquitted Muhammad Khan and Ghulam Muhammad accused on the ground that they had no direct motive against the deceased and one of them was empty‑banded. He also took notice of the fact that both these accused were found innocent during the Police Investigation and their names were shown in column No. 2 of the challan.

9. The learned counsel for the appellants contended that both the eye‑witnesses, namely Alam Sher complainant and Mst. Bakht Bhari P. W. were interested against the appellants as they had inveterate enmity with them, therefore, their uncorroborated testimony was insufficient to warrant the conviction of the appellants. He further contended that their evidence was belied by the medical evidence on the record and the finding of the learned trial Judge that the medical evidence corroborated the ocular account was misconceived.

11. We have gone through the entire evidence with the help of the learned counsel for the appellants and the State, and have given our careful consideration to the arguments addressed by them. It is admitted by the appellants that about fifteen or sixteen years prior to the occurrence Muhammad, father of Muhammad Ramzan appellant, was murdered and Muhammad Sher deceased of this Base and his brothers Malook (P. W. 6) and Fateh Sher P. W. (since dead) and the latter's son Sher Muhammad were prosecuted for that murder, but were acquitted. The F. I. R. of that case has been placed on the record as Exh. P. W. 9/A. According to this F. I. R., Malook who was armed with a gun had fired the fatal shot at Muhammad. This document does not show that Muhammad Sher (deceased) of this case) his brother Fateh Sher, and latter's son Sher Muhammad had cause any injury to aforesaid Muhammad, The learned counsel for the appellant coextended that according to Exh. P. W. 9/A the part played by Muhammad Sher deceased of this case and his brother Fateh Sher was the same, therefore, if the appellants and the acquitted accused wanted to take revenge of the murder of aforesaid Muhammad they would not have spared Fateh Sher P. W. (since dead) who, according to the prosecution's own showing, was available at the place of occurrence. The contention is not without force. Apart from the above incident of murder, the parties had enmity on other scores as well which will be detailed hereinafter. From the evidence on the record it is established that there was severe enmity between the parties. The enmity, however, cuts both ways. It may be the reason for the attack and at the same time it may induce the complainant to falsely implicate his enemies.

12. Alam Sher P. W. admitted in cross‑examination that eleven years age Muhammad Khan acquitted accused, Skier Muhammad father of Ata Mohammad accused and otters except Muhammad Ramzan accused were prosecuted under section 307 of the Pakistan Penal Code for firing at Muhammad Sher deceased, but were acquitted. In his statement before the committing Magistrate with which he was duly confronted he had stated that Muhammad Ramzan appellant was also challaned in that case. He admitted that he and his brother Malook had appeared as P. Ws. in that case. It is also in his statement that six or seven years before the occurrence he and his brothers Malook P. W. and Muhammad Sher deceased were convicted under section 307 of the Pakistan Penal Code for makiniz murderous assault on Mst. Fateh Khatun, sister of Ghulam Muhammad (acquitted accused) and sentenced to five years rigorous imprisonment each. He further admitted that the accused were their old enemies. In view of the background of long‑standing enmity between the parties, the evidence of Alam Sher and Mst. Bakht Bhari can be accepted only if it finds corrobora tion from an independent and unimpeachable source.

13. The learned trial Judge found corroboration of the testimony of Alam Sher and Ms:. Bakht Bhari in the medical evidence. While discussing their evidence he observed as under:‑ "They had stated that they as well as the deceased did riot take meals after the morning meals which they took in their own village and that they had simple tea in WanBachran. This part of their statements finds support front the medical evidence because the doctor detected only traces of food in small intestines of the deceased. Moreover the time of the death told by the two eye-witness tallies with the one given by the doctor" The mere fact that these P. Ws. had stated that the deceased did not take meals after the morning meals and the doctor detected only traces of food in small intestines of the deceased was not sufficient to clothe these witnesses with credibility. The doctor stated that time between death and post‑mortem was from 12 to 18 hours. The post‑mortem examination was conducted on 5th September 1971 at 9 a.m. which would mean that according to the doctor the death had occurred between 3 p.m. and 9 a.m. on 4th September 1971. This evidence in no way shows that the time of death told by the eye‑witnesses corresponded with the one given by the doctor:

14. The doctor's evidence as to the seat of the injuries, the position of the victim end that of the assailants rather contradicts the eye‑witness account and the evidence shows that both the eye‑witnesses made improvements at the trial in order to bring their testimony in line with the medical evidence. Injury No. I was a firearm wound of entry on the back of upper part of left forearm and injury No. 2 that of exit on the front of middle of left forearm. The doctor found charring over an area of 3 x 2' around injury No. 1 which indicated that the shot was aired from a close range. In order to bring their testimony in line with the medical evidence Alam Skier arid Mst. Bakht Bhari P. Ws. stated in examination‑in‑chief that Muhammad Khan (acquitted accused) fired at the deceased from a distance of one foot hitting his arm. Alam Sher was confronted with his statement before the police and the committing Magistrate wherein the distance from which Muhammad Khan had fired at the deceased was not mentioned. Mst. Bakht Bhari was also confronted with her police statement wherein the distance from which Muhammad Khan had fired was not mentioned. Injuries Nos. 5, 6 and 7 were wounds of entry on the scrotum and blackening was present on these wounds. In examination‑in-chief Alam Sher complainant stated that Muhammad Ramzan appellant fired a pistol shot art the deceased from a distance of half foot which hit his buttocks. He was confronted with the F. I. R and his statement before the committing Magistrate wherein the distance from which Muhammad Ramzan appellant had fired at the deceased was not mentioned. These witnesses improved their statements at the trial by introducing the distance from which the shots were fired obviously with a view to bring their evidence in conformity with the medical evidence. In the F. I R. the complainant stated that when they reached near Muhammad Sher deceased they found that he had already succumbed to his injuries. At the trial, he changed his statement and in his examination‑in‑chief stated that when they were near the deceased he was unconscious and had died after half an hour. Mst. Bakht Bhari also made a similar statement in her examination‑in‑chief. Both of there were confronted with their statements before the police and the committing Magistrate wherein it was not so stated Mst. Bakht Bhari denied having stated before the committing Magistrate and the police that when they (the eye‑witnesses) reach near Muhammad Sher he was dead. Sher was confronted with both the statements where it was so recorded. Alam Sher complainant also denied having stated before the committing Magistrate that when they reached near Muhammad Sher deceased he had already died. He was confronted with his statement where it was so recorded. This version seems to have been introduced by the P. Ws. at the trial in order to bring their testimony in line with the evidence of the doctor who stated that "the deceased must have lived at least for half an hour after receiving the injuries".

15. Again all the eye‑witnesses stated that the deceased started running and Ghulam Muhammad (acquitted accused) caught hold of him whereupon Muhammad Ramzan appellant fired a pistol shot on the deceased which hit him on the buttocks. Alam Sher complainant stated that this snot vas fired on the deceased from behind. According to the medical evidence, injuries Nos. 5, 6, 7 and 9 were wounds of entry on the scrotum and injury No. 8 was the wound of exit on the posterior and left side of scrotum. The doctor stated that injuries Nos. 3 to 9 were fired from front. Therefore, the evidence of the eye‑witnesses that Muhammad Ramzan appellant fired a pistol shot hitting the deceased on his buttocks stands belied by the medical evidence. While dealing with this aspect of the case the learned Sessions Judge observed that the deceased was running in order to save his life and he might have taken many turns when the accused fired at him. Tile approach of the learned trial Judge does not seem to be correct because all the eye‑witnesses were unanimous that Muhammad Ramzan appellant had fired at the deceased when Ghulam Muhammad (acquitted accused) had already held him, therefore, there was no question of taking any turn.

16. The eye‑witnesses stated that Ata Muhammad appellant fired at the deceased hitting his left flank when the deceased had fallen down. Injuries Nos. 1 and 2 were on the left firearm, Nos, 3 and 4 on the front of left side of chest and Nos. 5 to 9 on the scrotum. The doctor stated that injuries Nos. 3 to 9 could not have (seen caused when the deceased was lying on the ground and the assailant or assailants were standing. The medical evidence has thus belied the ocular account on every step.

17. Alam Sher complainant and Mst. Bakht Bhari are not truthful witnesses as they denied certain patent facts. In cross‑examination Alam Sher P. W. in the first instance denied that Fateh Sher P. W. bad been appearing as a witness for the complainant party previously, but when further cross‑examined he had to admit this fact. He admitted that Malook P. W. (brother of the complainant) was also injured during the occurrence in which Muhammad, father of Muhammad Ramzan appellant, was murdered and a cross‑case under section 307, P. P. C, was registered against Dost Muhammad, husband of the sister of Ghulam Muhammad accused, and Falak Sher P. W. appeared as a witness against Dost Muhammad in that case. He also admitted that Falak Sher appeared as a witness of Mst. Bakht Bhari, daughter of Malook P. W., in a suit for dissolution of marriage. Mst. Bakht Bhari also denied that Falak Sher P. W. was on visiting terms with his uncles and father for the last twelve years. She stated that she only recognised him because his lands were adjacent to theirs. She denied having stated before !he committing Magistrate that Falak Sher had old friendship with her deceased father and uncles or that he had been visiting their house for the last fifteen to twenty years. She was confronted with her statement before the committing Magistrate where it was so recorded. Falak Sher P. W. stated. "By chance I had been present at the time of the occurrence relating to the complainant party and, therefore, I had been appearing as their witness in various cases". These statements clearly show that Alam Sher and Mst. Bakht Bhari tried to suppress their connection with Falak Sher P. W. who was at the back and call of the complainant party and was always available as a witness in their causes. He was, therefore, rightly disbelieved by the learned trial Judge. The evidence of Alam Sher complainant and Mst. Bakht Bbari P. W. stands belied by the medical evidence and does not inspire any confidence.

18. There is no other evidence on the record to connect the appellants with the commission of crime. The investigating Officer Mir Zaman Khan (P. W. 12) stated that Muhammad Ramzan appellant has led to the recovery of pistol (Exh. P 7) in the presence of Alam Sher and Malook P. W's. Both of them did not utter a word about the recovery of this pistol. According to the report of the Firearms Expert (Exh. P.L.), .12 bore empty recovered from the spot had not been detained from tine pistol in question.

19. For all the foregoing reasons, we are of the view that their prosecution has failed to bring home the charge to the appellants and they are entitled to acquittal. We, therefore, accept this appeal, set aside the conviction arid sentence of the appellants and acquit them of the charge against them. They shall be set at liberty forthwith if not required to be detained in any other case. Appeal accepted.