1991 P Cr (PLP)

The appeal addressed by Muhammad Sharif Khan, convict-appellant, against his conviction and sentence and the revision petition filed by the State for enhancement of sentence, are restored to the file of this Court by virtue of the order of the Supreme Court passed on June 17, 1987 as the order of Shariat Court passed on September 25, 1983, whereby Muhammad Sharif and others were acquitted by setting aside the order of conviction and the revision petitions addressed against acquittal of the co-accused, viz., Muhammad Sadiq and others were dismissed, was set aside.

2. It was reported on July 17, 1977 at 8-30 a.m. that Abdur Rehman and Muhammad Rashid, deceased, were gunned down by Muhammad Sharif and Abdul Ghafoor, accused, during the morning hours at about 6-15 a.m. According to prosecution, the complainant party and the accused party were on inimical terms on account of murder of Abdush Shakoor, son of Muhammad Sadiq, an acquitted accused. Muhammad Aslam and Anees, son of Abdur Rehman deceased, were facing the charge of murder. Abdul Ghafoor, absconder, brother of Abdush Shakoor deceased, and the acquitted accused announced invariably to vindicate the grievance of murder of Abdush Shakoor. Muhammad Sharif had developed relationship with Abdul Ghafoor and others by seeking the hand of the sister of Abdul Ghafoor for his son. He occupied the position of a ring-leader of the adverse party. On the previous night, Muhammad Aslam complainant and Abdur Rehman deceased were invited at dinner by Muhammad Rashid. They stayed in the house of Muhammad Rashid. Next morning, the aforesaid three persons left the house of Muhammad Rashid and arrived in the house of the complainant where they took cup of tea and left for Prati Bazar. Abdur Rehman was ahead of them. Muhammad Rashid followed Abdur Rehman while the complainant followed diem at a distance. When they reached a Nullah near Prati Bazar, Muhammad Sharif accused, armed with a double-barrel gun, appeared on the scene and challenged Abdur Rehman. He fired on him one after the other, which hit the chest of Abdur Rehman, who died instantaneously. Muhammad Rashid ran away downward, but he was fired upon by Abdul Ghafoor, which hit his left arm and left side of his abdomen. He also died instantaneously. The complainant ran away by raising hue and cry. The incident was seen, in addition to the complainant, by Nasim son of Gulab, a vegetable-vendor of Prati Bazar. Soon after the occurrence, the accused were seen running away by Fazal Hussain son of Mahboob Khan and Muhammad Saleem son of Abdul Karim. Mst. Rehmat Jan, wife of Muhammad Sadiq, Abdur Razzaq and Muhammad Sadiq son of Noor Khan were ascribed the charge of conspiracy in the alleged murder. It was further stated that 2-1/2 years before the incident, Abdur Rehman was fired upon and in that case, Muhammad Sharif, accused, had secured his bail pre arrest.

3. Muhammad Sharif was apprehended on July 20, 1977. Abdul Ghafoor absconded. Muhammad Sadiq and Mst. Rehmat Jan were apprehended on July

25. Muhammad Sarwar and Abdur Razzaq were arrested on August 15.

4. The accused pleaded not guilty. The prosecution produced Muhammad Aslant, complainant. Muhammad Saleem son of Said Akbar, Muhammad Bashir, Khadim Hussain, Sardar Sayab Khalid, Advocate, Muhammad Yaqub, Nek Muhammad, Mir Muhammad, Munshi Muhammad Rahim Patwari, Baboo Muhammad Rashid, Ahlmad of the Court of A.D.M., Muhammad Abbas Constable, Muhammad Sharif, Muhammad Ismail, Syed Amir-ud-Din Shah, Fazal Hussain, Muhammad Akbar, Baboo Sardar Khan, Nazar of the Court of District and Sessions Judge, Baboo Naqi Muhammad Khan, Muhammad Ayub Khan, Sardar Muhammad Latif Khan, Inspector, Misri Khan Constable, Dr. M. Shabbir Kiani and Muhammad Nazir Khan, Constable. The prosecution gave up Muhammad Hashim Khan, Ch. Muhammad Shafi, Said Muhammad alias Saida, Mst. Nazir Begum and Muhammad Nasim Khan, P.Ws. In defence, the accused produced Said Muhammad Khan, Jannet Hussain, Muhammad Saghir Kiani, Muhammad Afsar, Noor Muhammad Shah, Mir Haider, Chaudhry Muhammad ShaCi, Hap Muhammad Afzal Khan, Vakeel Rawalakot, Subedar Suleman Khan, Muhammad Saleem, Sardar Muhammad Anwar Khan, Sub-Judge/Magistrate 1st Class, Dhirkot (presently Additional District and Sessions Judge, Pallandari), Sardar Muhammad Farooq, Advocate, Muhammad Hanif Khan and Sardar Muhammad Azim Khan, Advocate Rawalakot.

5. The revision petition against the acquittal of Muhammad Sadiq, co- accused, was dismissed by this Court on the first round. The order of dismissal of the revision petition was not challenged in appeal before the Supreme Court. Thus, the order of this Court has attained finality. Abdur Razzaq, who was convicted and awarded the sentence of 10 years' rigorous imprisonment, was acquitted by this Court: On remand of the case, he executed surety bond for his appearance before the Court. He died during the pendency of the appeal. In such situation, the case of Muhammad Sharif, convict-appellant, alone is to be disposed of.

6. Raja Sher Muhammad Khan, the learned counsel for defence, argued that Muhammad Aslam, complainant alone was the eye-witness as Muhammad Nasim son of Gulab, another eye-witness mentioned in the first information report, was given up. Muhammad Saleem son of Abdul Karim mentioned in the first information report who according to the complainant, saw the accused running away from the scene immediately after the occurrence, was also not produced and was substituted by another Muhammad Saleem son of Muhammad Akbar Khan. The other witness of seeing the accused running away from the scene after the occurrence was Fazal Hussain son of Mahboob Khan. It was emphasised that Muhammad Aslam, complainant and Fazal Hussain both were closely related to the deceased. They were interested and inimical witnesses as such they were not reliable. The learned counsel also assailed the recoveries of crime empties, the gun and the report of the Ballistic expert on the ground of delay in sending the crime weapon and crime empties to the Ballistic Expert and incredibility of the recovery witnesses. He further argued that the motive alleged was not proved. In support of the aforesaid points, reference was made to 1982 P Cr. L J 1107, P L D 1982 Kar. 975, P L D 1971 Kar. 197, P L D 1990 Pesh. 10, P L D 1982 Lah. 494, P L D 1959 SC 127 and 1971 S C M R

432. Mr. Rafique Mahmood Khan, the learned counsel for the complainant, controverted the aforesaid points and urged that the testimony of Muhammad Aslam, an eye witness, was sufficient for recording conviction. Reference was made to corroborative evidence of Fazal Hussain, Muhammad Saleem and Muhammad Akbar, in addition to the recovery of crime empties. The learned counsel, in support of his contention, cited P L D 1965 SC 188 and 1974 S C M R 215.

7. The trial Court convicted Muhammad Sharif on the charge of murder of Abdur Rehman, deceased, and sentenced him to life imprisonment. He was also made liable to pay Diyyat in the sum of Rupees eighty thousand. Abdur Razzaq was also found guilty and awarded sentence of 10 years' imprisonment for his role as a conspirator in the incident of double murder. The co-accused described above were acquitted as they were not found connected with the alleged conspiracy and abetment ascribed to them.

8. The primary evidence in the case confines to the testimony of Muhammad Aslam who claimed as an eye-witness. He made the first information report whereby, in addition to him, the incident was seen by Naseem, a vegetable- vendor in Prati Bazar. The witness disclosed in the report that Fazal Hussain and Muhammad Saleem son of Abdul Karim saw the accused running away from the scene after the incident. In his testimony in the Court, it was disclosed that when he raised hue and cry, the persons who immediately arrived on the scene, were Ch. Muhammad Shari, Saida, Muhammad Hashim and Muhammad Akbar. He also came back on the scene after the arrival of these persons and on inquiry of Muhammad Akbar he narrated the incident to them. Thereafter, according to him, Fazal Hussain, Bashir and Saleem arrived on the scene. Saleem told him that he saw Muhammad Sharif accused, running away alongwith his gun. Fazal Hussain and Bashir disclosed that they saw Abdul Ghafoor, another accused running away with his gun, after the incident. The interesting aspect of the aforesaid testimony of the witnesses is that none of the persons described above corroborated Muhammad Aslam that he was present at the time of firing on the victims and his arrival on the scene immediately after the occurrence and narrating the incident to Ch. Muhammad Shari, Saida, Muhammad Hashim and Muhammad Akbar. Ch. Muhammad Shafi, Hashim and Saida, as mentioned earlier, were given up. Thus, the only person left behind was Muhammad Akbar, Muhammad Akbar appeared as a witness as P.W.16. He stated in his examination-in-chief that he was at his residence. At 6 or 6-15 a.m., he heard firing. Two fires were made one after the other and third after some interval. He immediately left for the place of occurrence. Said Muhammad, Muhammad Hashim and Muhammad Shafi were already present on the scene. He found the dead bodies of the deceased lying there. Presence of Muhammad Aslam, complainant, was not supported by this witness. Moreover, the version of Muhammad Aslam that he narrated the incident to Muhammad Akbar, was also not supported to answer to a question in cross- examination, the witness stated that when he heard the firing he was accompanied by Muhammad Sarwar, his son. At that time, they were taking tea in the Verandah of their house. Muhammad Sarwar preceded him as he reached 10 to 75 minutes after the firing. He admitted the presence of Naseem, the vegetable-vendor. The witness stated that he did not disclose the incident to any other person except Naseem. He further disclosed that Muhammad Aslam, complainant, arrived on the scene 10 to 15 minutes after the arrival of the witnesses. He was weeping and soon thereafter he left the place of incident. The witness denied the correctness of his statement before the police under section 161, Cr.P.C., relating to presence of Muhammad Aslam and his narrating the incident to the witness. Muhammad Aslam P.W. is not supported by Muhammad Akbar m material particulars, so as to believe that he accompanied the deceased persons and saw the incident; he ran away by raising hue and cry and thereafter immediately came back on the scene and told the details of the incident, on inquiry of Muhammad Akbar, to Muhammad Shafi, Said Muhammad, Hashim and Muhammad Akbar. The claim of the complainant on this score is totally belied by Muhammad Akbar.

9. Said Muhammad and Ch. Muhammad Shafi were produced in defence. These witnesses volunteered to testify on special oath on Holy Quran. It was not deemed expedient to record their statements on special oath, as it was opposed by the Public Prosecutor. Be that as it may, the fact remains that these two witnesses alongwith Saghir and others, absolutely excluded the presence of Muhammad Aslam on the scene of the incident and immediately thereafter. According to these witnesses, he came later on when a large number of people had already assembled there. Here, it is relevant to refer to the statement of Sardar Muhammad Anwar Khan, Sub-Judge/Magistrate 1st Class, who also arrived on the scene 4 to 5 minutes after the firing. Muhammad Aslam was though not known to the witness, yet after seeing him in the Court at the time of his testimony, his presence was clearly denied at the time when the Sub-Judge arrived on the scene of incident. The important aspect of the testimony of Sardar Muhammad Anwar Khan is that in case the identity of the assailants was established as alleged by the complainant, there was hardly a reason that the names and particulars of the culprits should not have been disclosed to the Magistrate who, per chance, immediately visited the scene of occurrence. Muhammad Shafi, retired Superintendent of Police, was also there. In case the particulars of the assailants were known by that time, at least he would have told the same to the Magistrate. The defence witnesses mentioned above are independent and impartial and there is no reason to disbelieve them, particularly when their presence immediately after the occurrence was admitted by the prosecution.

10. Muhammad Aslam gave a chequered history of enmity by reference to numerous instances resulting in litigation between the parties. The parties are found involved in different cases. They were inimical to each other. In presence of the accepted enmity, a heavy duty is cast upon the Court to be on double alert in sifting the truth from the falsehood in the evidence produced before the Court. In such situation, the testimony of a related, inimical and interested witness has to be deeply appreciated to find out the truth. Moreover, as a rule of caution, such evidence cannot be accepted, by itself, to record conviction. It is one of such cases where the Court shall insist on independent corroboration to record conviction of the accused.

11. The other aspect of the prosecution's case is that none of the persons residing in the vicinity of the alleged incident was produced. Ordinarily, when there was an incident of firing resulting in double murder in the early hours of the morning at 6-15 a.m. in the month of July, persons living in the vicinity should have noticed the assailants at the place of occurrence or running away from such place. It is quite strange enough that none of the residents close to the place of incident claims as having seen the accused coming or going away from the site of occurrence immediately before or after the incident.

12. Muhammad Saleem deposed that he was working as a labourer. At the relevant time, he was working in the house of one Muhammad Akbar and was busy in digging out stones when he heard the firing one after the other and also heard cries. He left for the place of incident and saw Muhammad Sharif, accused, running away towards his house with a double-barrel gun. The witness arrived in the Bazar, from where he went to the place of incident. He saw the dead bodies of the deceased persons. Said Akbar alias Saida, Shafi, Muhammad Hashim, Naseem and Aslam were already present there. He inquired about the incident from Naseem who told him the details of the incident. On this, he told the persons present there that he saw Muhammad Sharif running away with his gun. He was also witness of recovery of crime empties found near the dead body of Abdur Rehman. He is first cousin of Muhammad Rashid, deceased. His interest is quite evident, but the interesting aspect of the testimony of this witness is that his evidence is not corroborated by Said Akbar alias Saida and Muhammad ShaE, who appeared in defence. Muhammad Akbar P.W. who appeared for prosecution and claimed to have reached the place of incident immediately, also tailed to support the testimony of this witness.

13. The evidence of other witnesses is not relevant to the case of Muhammad 9harif, appellant, as that either relates to the charge of conspiracy ascribed to the acquitted accused or to Abdul Ghafoor, the absconding accused who was, according to Fazal Hussain and Muhammad Bashir, seen running away from the place of occurrence.

14. Muhammad Sharif, accused-appellant was the owner of the double barrel gun recovered at his instance. He was keeping the gun under licence. A photostat of the licence is available on the file. He was apprehended on July

20. The gun was recovered on July

30. It remained with the police till August 25 when it was sent to the Ballistic expert through Muhammad Abbas, Constable. The crime empties also remained with the police till such time. Muhammad Latif, Inspector Police gave explanation for delay in sending the gun to the Ballistic Expert. It was explained that the gun was not sent immediately as Abdul Ghafoor, the other accused, was yet to be arrested and gun was to be recovered from him; so it was deemed proper to send both the guns together to the Ballistic Expert.

15. The recovery of gun is not denied by the defence. However, identification of the crime empties recovered from the place of incident is not credible. The crime empties were described in the recovery memo. as `Made in Pakistan' of Shaheen Trade Mark. Such empties being easily available can be padded in evidence. The recovery witnesses neither signed the empties nor the parcel. Moreover, they were unable to point out any mark of identification to establish that the empties recovered from the place of incident were the same, which were produced in the Court.

16. Ordinarily, it is always insisted upon that the crime weapon should be sent to the expert for his examination without delay. For delay in sending the crime weapon to the expert, is usually seen with doubt. The statement of the Police Inspector in explaining the delay is not convincing, as in presence of definite evidence, as alleged by the eye-witness that the crime empties recovered near from the dead body of Abdul Rehman, were fired by Muhammad Sharif, accused, from his gun, there was hardly a reason to retain the same till the arrest of the co-accused and recovery of gun from him. The other aspect of recovery of crime empties, which creates doubt, is that the third crime empty recovered from the place of occurrence was not sent to the Ballistic Expert for examination. The Police Inspector explained that the third empty was not sent due to mistake and oversight. A mistake or oversight of the prosecution cannot result in liability of the defence. Mr. Rafique Mahmood Khan, the learned counsel for the complainant, frankly accepted that the recovery of the empties and the delay in sending the same for examination of the expert, was not free from tampering, as such the learned counsel hesitated to place reliance on this piece of evidence.

17. It is a well-settled rule that once a motive for a crime is alleged, the prosecution is under duty to prove it beyond reasonable doubt. For, absence of motive is not considered a ground for acquittal of the culprit, but once a motive is alleged, then the consensus is that it should be proved to the satisfaction of the I Court. When such motive is not proved, the prosecution has to suffer for its failure. This view finds support from P L D 1969 SC 127 and 1971 S C M R

432. In Habibullah's case P L D 1969 SC 127 it was observed:-- "In ordinary human conduct where killing takes place by design, it is not without a motive, strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever. Motiveless murders do occur owing to mad or reckless acts of human nature. Some times a motive lies mysteriously hidden in the mind' of the killer with no means to dig it out on the surface. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence, direct or indirect, speak about the guilt of an accused person on the premises of a false motive. Where, therefore, the alleged motive was found to, be absent being untrue, it was held that the Courts Have been very much on their guard to accept the story of prosecution of which the motive was an important constituent and which depended for its acceptance on the statement of a single witness who supported that story including the motive:' In Hakim Ali's case, 1971 S C M. R 432, it was observed: "It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up & motive and failed to establish it, then it is the prosecution which must necessarily suffer on that account and not the defence. If the prosecution failed to establish the motive set up by it, as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case."

18. It is a celebrated rule of criminal jurisdiction that prosecution must prove its case beyond reasonable doubt. In present case, as noticed earlier, the prosecution produced three sets of evidence, (i) eye-witnesses, (ii) witnesses who arrived immediately after the occurrence and saw the accused running away and (iii) motive. Out of the eye-witnesses, Muhammad Naseem, the vegetable-vendor, was given up. Thus, Muhammad Aslam, complainant, was left alone. He was an interested, related and inimical witness. He is not corroborated by any other independent evidence. Therefore, this set of evidence does not bring home the alleged guilt of murder ascribed to the accused. The witnesses who arrived immediately after the occurrence, also failed to connect the accused with the alleged offence. The independent witnesses, who arrived on the scene immediately after the occurrence, were given up. They appeared in defence and gave the true account of the situation. Their evidence is quite credible and reliable. According to the testimony of these witnesses, the accused was not linked with the alleged murder. In addition to them, a large number of witnesses appeared in defence to support the plea of alibi raised by Muhammad Sharif, accused-appellant, in his statements under sections 242 and 342, Criminal Procedure Code. The accused is a petition-writer. He also referred to certain documents, which he wrote as petition-writer in the Courts premises of Rawalakot on the day of the alleged incident. The testimony of the witnesses who saw him in the premises of the Courts on the day of incident in the early hours and at noon time, when weighed with the evidence of prosecution, is definitely found of higher value.

19. Be that as it may, the fact remains that the prosecution has failed to prove its case beyond reasonable doubt, as such it has to suffer for its failure to discharge the onus of proof. The appeal addressed by Muhammad Sharif is, therefore, accepted. The revision petition for enhancement of sentence is dismissed. The order of the trial Court, resulting in conviction of the appellant, is set aside and the accused is acquitted of the charge of murder. MA.K./118-M/AJK Appeal accepted.