1994 PLP 6 (SCMR)

(8) Incised wound 1 c.m. x 1/2 c.m. x muscle deep right leg inner side. (9) Incised wound 1 c.m. x 1/2 c.m. x muscle deep inner side right leg, middle 1/3rd. (10) Incised wound 1 c.m. x 1/2 c.m. x muscle deep left leg upper one third. (11) Incised wound 1 c.m. x 1/2 c.m. x muscle deep left leg lower one‑third. (12) Incised wound 1 c.m. x 1/2 c.m. x scalp deep top of head." The doctor was of the opinion that injury No.1 was given by sharp‑edged pointed weapon while the remaining were given by sharp edged not pointed weapons except for injury No.7 which was caused with blunt weapon.

3. A case was registered at Police Station Factory Area, Faisalabad at 6‑50 p.m. on a report of the occurrence received from outside the Police Station recorded by Akhtar Ali S.I. The investigation was taken up by Ghulam Muhammad S.I. Masood Ahmad and Ashraf the two appellants were arrested on 11‑6‑1986. Masood led to the recovery of Khanjar (Exh.P.8) on 13‑6‑1986 while Ashraf led to the recovery of Dagger (Exh. P.6) on 21‑6‑1986 which were on examination found to be stained with human blood. Similarly, recoveries were effected from the three other co‑accused of the appellants.

4. The appellants denied having participated in the occurrence or to have led to the recoveries. They alleged false implication.

5. The trial Court found all the five accused guilty of the offence, convicted them and sentenced Masood to death and others to life imprisonment and fine. On appeal the High Court acquitted the three co -accused of the appellants but maintained the conviction of the appellants not confirming the death sentence of Masood and instead substituting it with life imprisonment. Benefit of section 382‑B, Cr.P.C. was also allowed to them.

6. Mr. Aftab Farrukh, Senior Advocate, the learned counsel for the appellants has contended that in this case benefit of acquittal was given to the three , co‑accused in very unusual circumstances. They had themselves surrendered before the Magistrate soon after the occurrence. They claimed that their identification by the eye‑witnesses be arranged. The complainant as well as the investigating agency resisted that application. The Magistrate declined to get the identification parade conducted. Even a criminal revision filed by these accused failed. According to the learned counsel this positive reluctance on the part of the eye‑witnesses and the prosecution to have the culprits identified 'reacted on their entire evidence as eye‑witnesses. It only showed that they had not witnessed the occurrence, they had not identified the culprits, they were not in a position even after getting the report recorded to identify those whom they had named in the F.I.R. Not only the three who made such an application and did not succeed but in respect of others without strong independent corroboration conviction could not be recorded on the evidence of such eye‑witnesses. Their credibility as eye‑witnesses stood shattered by their own conduct which finds justification neither in law nor in propriety. Reliance has been placed on Rehmat and others v. The State (PLD 1959 SC 109 at page 118) and Muhammad Aslam and others v. the State (1988 SCMR 940 at 943). The learned counsel has further pointed out the close relationship of the eye‑witnesses, the intrinsic infirmity of their evidence and its inconsistencies with the medical evidence.

7. The learned counsel for the State (Raja Abdul Ghafur, Advocate) has in meeting the submissions of the learned counsel for the appellants pointed out that the identification parade request was resisted by the prosecution and the complainant because they feared that with some collusion with the Jail authorities the accused could succeed in avoiding identification. Besides, the eye‑witnesses were natural witnesses. Being neighbours and relatives, the accused were known and had been named. There was no further need for identification. The ocular testimony was supported by the recoveries from the appellants.

8. The learned Judges in the High Court have considered in great detail the implications of the refusal of the prosecution and the complainant to identify the co‑accused in a formal identification parade and concluded as hereunder:‑ "We are, therefore, of the opinion that the conduct of the complainant and the investigating agency in insisting against the holding of an identification parade was not justified either in law or on facts and we are constrained to draw inference against the prosecution on this account. The benefit of this suspicious conduct of the prosecution has to go to these three accused persons."

9. The legal question arising in the case is whether the benefit of such a conduct on the part of the complainant and the prosecution would be restricted to those three co‑accused of the appellants who were ready to face identification but the prosecution witnesses were not prepared for it, or it will react on their entire testimony as eye‑witnesses. Individual roles had been attributed to the three co‑accused., in laying in ambush, in starting the attack and in inflicting the injuries. If we come to the conclusion that they were not in a position to identify those persons, identification of the others would be equally open to challenge and doubt.

10. The enmity between the parties is alleged by the prosecution itself. In that case the mere suspicion with regard to the accused could have aroused them to leave a charge against their suspected enemies. There are certain intrinsic inconsistencies in the statements of these eye‑witnesses. For example, Nazeer Ahmad (P.W.7.) stated that a hatchet blow with the wrong side was given on the left flank of the deceased and Ramzan (P.W.11) also stated that it was given on left Wakhi (in English record it is written as right flank) but no such injury was found on the deceased. The only one to be found was on back of right knee. The ocular evidence suggested that only one hatchet injury was given and the remainder were of dagger blows. The doctor's opinion with regard to the incised injuries is that only one injury was given by the pointed sharp‑edged weapon, the others were given by sharp‑edged not pointed weapons. The witnesses say that they had come alongwith Zaheer outside the house in order to ensure that the compromise took place in their presence and with there participation and the deceased did not enter into a compromise by himself. If that was the real reason then they would not have allowed the. deceased to be taken across the road all by himself by the appellant Masood Ahmad. By going across the road there could be no doubt that destination could be anywhere even out of sight of these witnesses. If only he wanted to talk with him or by himself, he could do so by stepping aside remaining on the same side of the road a bit removed. The nature of enmity that existed between the parties appeared to be serious because Nazeer Ahmad (P.W.7) stated as hereunder:‑ "It is correct that our relations with each other were completely ruptured and we were not on speaking terms with each other. The incident of causing damage to scooter was not reported by us to the police. The damage was caused by Masood to the scooter in our presence. It is correct that after the altercation of hot words between the parties, the relations were further affected." With this background of enmity if they had been purposely present, they would not have allowed the deceased to be taken across the road to an unknown destination at that hour.

11. According to the evidence when the attack on the deceased started, the witnesses did not go over by crossing the road in order to intervene, to provide assistance or to avoid the repetition of the blows that were given. The medical report shows that sufficiently larger number of blows were given and if these were given in the sight and view of the witnesses they would have rushed to the scene nothing to deter them from going closer. It is a fact admitted by all of them that none of them crossed the road for defending or intervening in the matter.

12. The High Court has taken the view that it was natural for Nazeer Ahmad (P.W.7) and Muhammad Ramzan (P.W. 11) to be present where they were Le, in .the House and at the shop respectively. To be present in the house and at the shop is one thing and to witness the occurrence taking place outside while in company is another. The presence of Naseer Ahmad (P.W.7) and Iqbal Muhammad (P.W. 10) in the company of the deceased at the time when the occurrence took place, outside their house, is rendered doubtful, and so is their claim to have witnessed the entire occurrence and to have identified all the culprits.

13. So far as the incriminating recoveries from the appellants are concerned, they are uninspiring and inconsequential. The recovery of the dagger attributed to Ashraf appellant had taken place from a graveyard, a place accessable to the public. The recovery attributed to Masood Ahmad had taken place from deserted house by opening the lock of which the key was produced by the Police and not by the appellant Masood Ahmad.

14. The testimony of the eye‑witnesses, apart from being interested, has been disbelieved substantially in respect of, the three acquitted accused. The reluctance of the complainant and of the prosecution as a whole to avoid identification reacts not only in favour of the three acquitted accused but also casts a serous doubt about the veracity of. the whole case. There are intrinsic inconsistencies in their claim to be eye‑witnesses, in their behaviour at the time of occurrence, in their testimony and the medical evidence. All these factors cumulatively cast a serious doubt about the identification and implication of the appellants in the crime.

15. In the circumstances, giving the appellants the benefit of doubt, we accept the appeal, set aside the conviction and sentence. The appellants shall be released forthwith if not required in any other case. N.H.Q./M‑1858/S Appeal accepted.