1999 PLP 1220 (SCMR)

ABDUR REHMAN KHAN, J.‑‑‑The two appellants alongwith Muhammad Safdar and Mirza Khan were tried under section 302/34, P.P.C. for the murder of Muhammad Bashir. By judgment dated 1‑9‑1991 the learned trial Court found the appellants guilty, and on conviction under section 302/34, P.P.C. each of them was sentenced to death and a fine of Rs.50,000 or to suffer two years' R.I. Muhammad Safdar accused was given benefit of doubt and acquitted while Mirza accused had died before the start of the trial.

2. The appeal filed by the appellants was dismissed by a learned Division Bench in the High Court through the impugned judgment delivered on 29‑11‑1995.

3. Leave was granted in the following terms:‑‑ ? "(i) In support of the above petition Ch. Afrasiab Khan learned Advocate Supreme Court appearing for the petitioners, has vehemently contended that the above conviction is founded on the testimony of two alleged eye‑witnesses, namely, Muhammad Younas (P.W.5) and Ikram Hussain (P.W.11), brother‑in‑law and a maternal cousin of the deceased, respectively, without any corroboration. According to him, since there was admitted enmity between the parties inasumcuh as there was past criminal litigation, of which F.I.Rs. were produced by the petitioners in their statements under section 340(2), Cr.P.C., the convictions could not have been recorded and the death sentences could not have been awarded to them without having reliable independent corroborative piece of evidence. (ii) We are inclined to grant leave to consider the question, whether the above convictions and sentences were warranted on the basis of evidence brought on record by the prosecution keeping in view the aforementioned F. I.Rs. produced by the petitioners."

4. Ikram Hussain (P.W.11) reported the occurrence to the police do the (Abdur Rahman Khan, J) spot. It was stated therein that he alongwith Muhammad Bashir (deceased) Muhammad Younus (P.W.5), Altaf Hussain (abandoned as unnecessary) in order to attend the hearing of a criminal case, proceeded from the village to Chakwal and when reached Dhatta Kot Chak and were waiting there to catch a bus, at 8‑00 a.m. Muhammad Khan (appellant No. l) armed with 12 bore gun and Muhammad Ashfaq (appellant No.2) armed with a rifle, Mirza Khan (acquitted accused) armed with a revolver and Muhammad Safdar (deceased) armed with a rifle came there. Mirza Khan raised Lalkara and said that Muhammad Bashir should be taught lesson for conspiring/planning the murder of Karam Elahi and that he should not escape. On this Muhammad Khan fired at Muhammad Bashir which hit him in his chest and simultaneously with that Muhammad Ashfaq fired with rifle at his head and Muhammad Bashir fell down. Muhammad Safdar with his rifle and Mirza Khan with his revolver fired in the air. Muhammad Ashfaq gave butt blow to Muhammad Bashir on his head while he was lying on the ground. Muhammad Bashir then succumbed to the injuries on the spot. Motive for the crime was stated to be the involvement of the deceased in the murder case of Karam Elahi and he was on bail in that case in those days.

5. The learned trial Court found the eye‑witnesses reliable as against the appellants and held their abscondence, motive for the crime and medical evidence as confirming their guilt. The learned High Court agreed with the conclusion of the trial Judge in these words:‑‑ "Both the complainant as well as Muhammad Younus P.W.5 gave very reasonable, convincing and plausible explanation for their presence at the scene of occurrence, as they had accompanied the deceased, who was going to attend the Court at Chakwal in connection with a criminal case."

6. It is to be noted here that the prosecution founded the guilt of the appellants on the following items of evidence:‑‑ (a) Ocular account given by Muhammad Younus (P.W.5) and Ikram Hussain (P.W.11). (b) Abscondence of the appellant, (c) Medical evidence. (d) Motive. (e) Recovery of crime weapon at the behest of the appellants.

7. The learned counsel appearing for the appellants referred to the grounds of appeal and submitted that he impugns the correctness and legality of the conviction and sentence of the appellants on the reasons as given therein. These reasons/objections put precisely would be as under:‑‑

(a) Delay in reporting the occurrence to the police. (b) Conflict in the medical evidence and ocular account. (c) Interested and partisan character of the eye‑witnesses. (d) Improbable, unreasonable and illogical nature of the evidence of the eye‑witnesses and the improvements made by them in their statements so as to bring it in accord with the medical evidence and other materials on record. (e) Absence of reliable corroboration of the eye account. In nutshell these objections mean that none of the alleged eye‑witness had seen the incident and that the incident was an unwitnessed occurrence.

8. The learned counsel appearing for the State and complainant on the other hand supported the impugned judgment and they were of the view that the eye‑witnesses were present on the spot and have given a truthful and confidence inspiring account of the occurrence.

9. We have studied the record in the light of the points raised from the appellants' side and the reasons given in the judgment of the trial Court and High Court in support of the findings of guilt.

10. We would first scrutinise and weigh the objection of delay in making the report and its implication in the present case. The incident, according to the F.I.R., occurred at 8‑00 a.m. but it was reported on the spot by Ikram Hussain (P.W.11) at 9‑30 a.m. as the note of its scribe, Ghulam Hussain, S.I. (P.W.15) on the bottom of the F.I.R. and his Court statement indicates. In another place this witness in his Court statement stated: "I was informed about the occurrence at about 7‑00 a.m." It is in the statement of P.W.5 (eye‑witness): Before the arrival of the police .15/20 persons from village Arrar reached the place of occurrence. It is incorrect that I had not seen the occurrence and came to the place of occurrence much later. The persons who came from village Arrar were from the ' Bratheri' of the deceased. It is correct that Niamat, 'Khalazad' of the deceased, Haji Muhammad Khan, brother of Ahmad Khan, brother‑in‑law of the deceased, my brother Muhammad Yousaf, Aftab and Parvez ' Khalazad' of the deceased had come to the spot before arrival of the police. Malik Bostan, Member District Council, resident of Khairpur' and Malik Altaf Hussain, Councillor of Bharpur, Police Station Kallar Kahar also arrived at the spot before arrival of the police". The other eye‑witness, P.W.11, also stated "After about 45 minutes of the occurrence 4/5 persons from the village Arrar came to the place of occurrence". It is in the evidence of the eye‑witnesses that village Arrar is about one Kilometre from the spot. The investigating officer stated: "It is correct that village Arrar is visible from the place of occurrence". It is also in the statements of both the eye‑witnesses and the investigating officer that there are shops near the place of occurrence. It is, thus clear that at least one of the eye‑witnesses out of the three as shown present on the spot at the time of occurrence, could go to police station for report. The explanation that has been offered for not proceeding for lodging the report is that they feared the accused. It is absurd reason, because they showed their presence on the spot during the firing till the accused decamped from the spot, therefore, the cause for their fear is not understandable. This laxity on the part of the eye‑witnesses without any? convincing justification creates doubt in their presence at the relevant time.

11. It is next to be seen whether the eye‑witnesses have offered reasonable explanation for their presence on the spot. It is stated in the F.I.R. that they were proceeding to Chakwal for P.W.5 stated, "I alongwith Ikram Hussain. Altaf Hussain and Muhammad Bashir was present at Dhatta Kot for coming to Chakwal in connection with the case of Muhammad Bashir". In cross‑examination, he explained: "He had told us that he had to appear as a P.W. in a case under section 13 of the Arms Ordinance against Muhammad Khan accused present in Court". P.W.11 explained his presence on the spot in these words, "On that day, Muhammad Bashir had to meet certain persons who remained with him in jail. He had to meet Haji Zahoor of Police Station Neela". The prosecution could place some documents from the case file in which the deceased was to appear as a witness or as an accused, but it has not been done. So, in view of the varying statements of the eye‑witnesses on this count and in absence of any documentary proof about the pending case at Chakwal in which the deceased was to appear, it is doubtful that the eye‑witnesses were accompanying the deceased to the Court.

13. The conflict in the eye‑witness account and medical evidence is: obvious. It is in the F.I.R. that Muhammad Ashfaq gave butt blow to Muhammad Bashir on right side of his head when he had fallen. No such injury has been shown in the post‑mortem report. On the other hand injuries shown therein as Nos.3 to 5, on the person of the deceased, have not been mentioned in the F.I.R. It is in the statement of P.W.2 (Doctor) "It is correct that there was no injury with 'butt' of the rifle on any part of head of the deceased" having been made conscious of this omission in the post‑mortem report the two eye?witnesses improved/changed their testimony on this count to bring it in line with the medical evidence. P. W.5 in his Court statement omitted to mention 'butt' injury on the head but made effort to explain injury on shoulder which he had not shown in his statement before the police. He stated in cross‑examination: "The butt blows were not inflicted at the place where the fire‑shots had hit the deceased. The place where the deceased sustained fire‑shots and had fallen the butt blows were inflicted to him there. I have not correctly stated that the butt blows were not inflicted at the same place where the fire‑shots had hit the deceased. I had stated before the police that Ashfaq accused had inflicted two butt blows to the deceased. (Confronted with Exh. DA where it is recorded that Ashfaq inflicted a butt blow). It is incorrect that I have mentioned the number of but blows yesterday to make my statement in line with the medical report. I had mentions the location of both the butt blows at back side of the right shoulder to the police. (Confronted with Exh. DA, where it is not so recorded). I had not stated before the police that butt blow was inflicted by Ashfaq accused which hit the head as well as the back of the right shoulder of the deceased (Confronted with Exh.D.A. where it is so recorded). It is incorrect that I have been tutored to make such‑like statement so that it should be in conformity with the medical report". Cross‑examination of P.W.11 on this count is as under: "I stated before the police in the F.I.R. that Ashfaq accused fired at the deceased hitting him on the right side of his head. (Confronted with Exh. PD where there is no mention of right side of the head of the deceased with regard to the fire shot injury). Bashir deceased had sustained only one injury on his head. He did not receive any injury of butt of the rifle on his head. I did not state in the F.I.R. that Ashfaq accused inflicted a butt blow hitting on the right side of the head of Muhammad Bashir deceased. (Confronted with Exh. PD, where it is so recorded)". It was also stated by P.W.11: "It is incorrect that I did not mention the location of the injury of Muhammad Bashir deceased on his head as I did not know by what type of weapon it was caused. It is incorrect that we had deliberations and mutual consultation and in our estimate the injury on the head of the deceased was caused by blunt weapon and for that reason I stated in the F.I.R. that the injury on the right side of the head of the deceased was inflicted by rifle butt blow. It is incorrect that as the injury was stated to have been caused by fire‑arm in the post‑mortem report, so it was mentioned in that way in the Court today. It is incorrect that I have intentionally changed my version and made a false statement to make it in line with the post‑mortem report, and changed the location of the injury with butt of the rifle. I stated in the F.I.R. that two rifle butt blows were inflicted on the back of the shoulder of the deceased (confronted with Exh.PD, where it is not so recorded). When Bashir (deceased) had fallen, his back was visible and was seen by us and he had fallen on his left side. I had seen the said injury on the back of the deceased, before the police arrived there." In this state of record it can justifiably be held that eye‑witnesses made changes and improvements in their statements so as to bring them in accord with the post‑mortem report. The relationship between the P.Ws. and the deceased is admitted in this way by P.W.5 "Ikram and Altaf P.Ws. are real brothers and they are maternal cousins of Bashir deceased and Khuda Bakhsh son of Murid Khan. Bashir deceased was my brother‑in‑law (husband of my wife). Bashir deceased was second degree cousin of my father".

14. In view of the documentary and oral evidence on record it could not be refuted that the eye‑witnesses have partisan character. Therefore, the evidence of IF this type of witnesses requires thorough scrutiny to determine its probative value. It is in the statements of the eye‑witnesses that they were near the deceased when the accused appeared on the spot and started firing. It was stated by P.W.5: "We all were standing in a group facing towards East. Bashir deceased was also facing towards East and standing with us. The accused came from the side of village Arrar and came in front of us facing towards West. The Lalkara was made from the distance of 20 feet and fire was opened from a distance of 10 feet from the deceased. The accused stepped forward initially for 10 feet and then opened fire. It took hardly one minute in raising Lalkara and opening fire by the accused". P.W.11 also admitted that he was near the accused and the deceased at the time of firing. It is also in the statement of the P.W.5 that "Safdar accused fired 3/4 shots. The empties of the fire shots of Safdar had fallen on the ground. (Volunteered, later on they were picked up by him). I stated before the police that the empties were picked up by Safdar accused (confronted with Exh.DA not so recorded). Mirza Khan accused (since dead) also fired 3/4 shots. There was no hindrance or obstruction between the accused and the deceased including us at the time the accused were firing shots. As we apprehended danger to our lives, so we did not step forward to rescue the deceased or to overpower the accused, rather we reiterated. When the attack was made, we and the deceased were standing on the Western side of the road leading to Dalwal". P.W.11 stated: "Muhammad Khan accused remained standing at the place where he was originally standing and he had fired at Muhammad Bashir only once. Thereafter he fired in the air. He fired 4/5 shots in the air. The empties were taken away by Safdar accused from the spot in my presence. I had stated before the police that the empties were taken away by Safdar accused from the spot in his bag. (Confronted with Exh.PD, where it is not so recorded). (To Court question:‑‑ I stated before the police that Safdar accused had taken away the empties in his bag in my supplementary statement). It is correct that I made the supplementary statement regarding the aforesaid fact after two minutes of my making statement Exh.PD". And again "The empty was taken out by Ashfaq accused and then he reloaded his rifle and started firing in the air. Ashfaq accused fired 4/5 shots in the air. At that time he was at a distance of about 7/8 feet from the deceased. At the time Ashfaq accused fired first shot, I was at a distance of about 1‑1/2 feet from him. Younas and. Altaf P.Ws. were standing alongwith me at that time. Ashfaq accused fired in the air and then after each fire he used to re‑load the rifle. I did not state in the F.I.R. that Ashfaq accused fired in the air re‑loading after every shot. It is correct that Muhammad Khan and Ashfaq accused could fire more shots at the deceased if they so liked, as there was no impediment in‑between. Safdar and Mirza Khan accused had fired 4/5 shots each in the air. We stepped behind for 6/7 feet when the accused fired at the deceased and we were still facing the deceased. Safdar and Mirza Khan accused used to re‑load after every shot. Again said that Mirza Khan did not re‑load his revolver. Mirza Khan accused did not eject the empties. I did not state before the police about re‑loading of rifle by Safdar accused and ejecting the empties by Mirza Khan accused". It is, however, curious that how it was possible for the accused to collect all these empties at that tense time and when particularly the spot is Adda and is admittedly surrounded by shops and when some of the shopkeepers and the three eye‑witnesses were already there. This improvement in the statement was made so as to justify the non‑recovery of empties in face of the numerous shots fired by the accused.

15. It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. It is unfortunate that neither the trial Court nor the High Court thoroughly studied the record so as to reach correct conclusion, rather they dealt with the matter in a very cursory manner which naturally resulted in miscarriage of justice. As noted above, the eye‑witness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it. The alleged abscondence of the appellants had not been proved as according to P.W.9 who was entrusted with the execution of warrant of arrest; the warrant of arrest issued against the appellants, was not before him when he was examined in Court. Similarly, the Investigating Officer also stated: "It is correct that the warrant of arrest of Muhammad Khan and Safdar accused are not on the file". In any case abscondance can never remedy the defects in the prosecution case as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt. Therefore, we allow this appeal by giving benefit of doubt to the appellants and, accordingly, while setting aside the impugned judgments acquit the appellants. N.H.Q./M‑269/S???????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.