2000 PLP 978 (YLR)

On 25‑11‑1989 at 2‑30 p.m. Mehr Khan complainant (P.W.2) alongwith Allah Yar (P.W.3), Mian Muhammad (given up) and Shamsher (since deceased) were cutting grass in the field situated within the area of Dhoke Wadgal when Qadir Bakhsh, Muhammad Elahi sons of Muhammad Qasim and Muhammad Ashraf alias Muhammad Razzaq armed with .12 bore guns and Muhammad Qasim empty‑handed arrived there. Muhammad Qasim raised a Lalkara that Shamsher be taught a lesson for committing the murder of Muhammad Hussain, upon which Muhammad Elahi and Muhammad Ashraf alias Muhammad Razzaq fired with their respective .12 bore guns but fortunately it did not hit Shamsher. Thereupon, Qadir Bakhsh fired with his gun which hit Shamsher who fell on the spot and succumbed to the injuries. The motive behind this occurrence is stated to be that about 1‑1/4 years ago, Khan Muhammad etc. nephews of Shamsher deceased had committed the murder of Muhammad Hussain, for which they were challaned and were acquitted by the Sessions Court. To take revenge of the said murder, it is stated, instant murder of Shamsher had been committed. Mehr Khan complainant left the dead body under the supervision of Mian Muhammad and Allah Yar and made for the Police Station Mitha Tiwana for lodging the F.I.R. Ata Muhammad, S.I. (P.W.11) was posted at Mitha Tiwana who on the statement of Mehr Khan chalked out the F.I.R. Exh.P.B. He left the police station for the place of occurrence at 11‑00 p.m. and reached the spot on the next day at 9‑00 a.m. He found the dead body of Shamsher lying on the spot. He prepared statement of injury Exh.P.H. and inquest report P.I. He despatched the dead body for post‑mortem examination and inspected the spot. He secured blood‑stained earth and stones and made them into a sealed parcel vide memo. Exh.P.D. He also secured sickle P.6 and dry grass P.7 vide memo. Exh.P.E. Sakhi Muhammad constable (P.W.6) produced before him last worn clothes of the deceased P.1 to P.5/1‑2 and a vial P.8 which he secured vide memo. Exh.P.C. He also got the spot inspected and got the site plans Exhs.P.F. and P.F/1 prepared from Rabnawaz Patwari (P.W.8). On 27‑11‑1989, he handed over a parcel to Moharrir for keeping the same in safe custody. On 13‑12‑1989, the investigation was transferred from him and was handed over to Qarib Ali Shah, S.I. On 15‑12‑1989, Qarib Ali Shah (P.W.12) took up the investigation of this case. Qadir Bakhsh accused was produced before him by Muhammad Nawaz, S.I. who formally arrested him. On 13‑12‑1989, Saleh Muhammad Chairman produced before him other accused and he arrested them. After usual investigation, the case was sent up to the Court.

2. A charge under section 302/34, P.P.C. was framed against the accused‑ to which they pleaded not guilty and claimed trial.

3. To prove its case, prosecution examined Dr. Malik Rab Nawaz who on 27‑11‑1989 at 8‑00 a.m. conducted the post‑mortem examination on the dead body of Shamsher son of Jindoo Khan and found the following injuries on his dead body: (1) A circular wound of entry of the fire‑arm projectile about 5 c.m. x 5 c.m. on the left upper chest, 2 c.m. above the nipple, 6 c.m. above the mid line 10 c.m. below the clavical, the margin was black and inverted. The corresponding hole was present on the back. (2) Five circular wounds of exit of the firearm projectile in the back of chest on the middle part, corresponding holes were present on the shirt. The measurement of each hole was 1‑1/2 c.m. x 1‑1/2 c.m. in an area of 12 x 9 c.m. In his opinion, cause of death was bleeding and shock and the death was due to injury No.l which was fatal enough to cause the death in ordinary course of nature. Injury No.2 was the exist of injury No.

1. All the injuries were ante-mortem and were caused by fire‑arm. Probable time between the injuries and death was immediate whereas between death and post‑mortem examination was 40 to 46 hours. He handed over the last worn clothes, one sealed bottle containing 3 pellets and two card wads and police papers to Sakhi Muhammad Constable. He issued post -mortem examination report Exh.P.A. and sketch of injuries Exh.P.A./1 which bear his signatures. Mehr Khan (P.W.2) is complainant and has corroborated his version appearing in F.I.R. Exh.P.B. He also joined the investigation and attested memo of recovery of last worm clothes of the deceased Exh.P.C. Allah Yar (P.W.3) is another eye witness of this occurrence who corroborated the prosecution version as put forth by Mehr Khan (P.W.2). He further deposed that blood‑stained earth was secured vide memo. Exh.P.D. and so also sickle P.6 and dry grass P.7 were secured vide memo. Exh.P.E. which bears his signatures. Zulfqar Ali, A.S.I. (P.W.4) deposed that on 27‑11‑1989, he was given one parcel containing blood stained earth by S.I. for keeping the same in Malkhana. The said parcel was given by Rab Nawaz head constable to Maratib Ali constable for onwards transmission to the office of Chemical Examiner. Maratib Ali (P.W.5) deposed that on 6‑12‑1989, he received one sealed parcel containing blood stained earth and stones and delivered the same in the office of Chemical Examiner on 7‑12‑1989. Sakhi Muhammad constable (P.W.6) escorted the dead body of Shamsher on 26‑11‑1989 to Civil Hospital Jahuarabad where post‑mortem examination was conducted on 27‑11‑1989. After post‑mortem examination, he was given last worn clothes of the deceased P.1 to P.5/1‑2 alongwith a phial P.8 which he produced before the Investigating Officer who secured the same vide memo. Exh.P.C. which bears his signatures. Rab Nawaz head constable (P.W.7) was given a parcel containing blood‑stained earth and stones on 97‑11‑1989 which he handed over to Maratib Ali constable on 6‑12‑1989 for onwards transmission to the office of Chemical Examiner. Rab Nawaz Patwari (P.W.8) visited the place of occurrence on 30‑11‑1989 as per direction of the police and pointation of witnesses and prepared site plans Exhs.P.F. and P.F/1 which bear his signatures. Aziz‑ur‑Rehman (P.W.9) is a witness of recovery of gun P.9, four live cartridges P.10/1‑4 and a Jhola P.I1 from Ghulam Qadir accused which were secured vide memo. Exh.P.G. Muhammad Nawaz, S.I/S.H.O. (P.W.10) is also a witness of recovery of memo. Exh.P.G. Ata Muhammad S.I. (P.W.11) and Qarib Ali Shah, S.I. (P.W.12) are the Investigating Officer and their evidence has already been discussed above. The learned D.A. produced report of Chemical Examiner Exh.P.J. and that of Serologist Exh.P.K. and thereafter, closed the prosecution evidence vide his statement, dated 26‑1‑1991.

4. When examined under section 342, Cr.P.C. Muhammad Qasim Elahi Bakhsh, Muhammad Ashraf alias Muhammad Razaq and Qadir Bakhsh accused admitted the factum of murder of Muhammad Hussain, father of Muhammad Ashraf alias Muhammad Razzaq and uncle of Qadir Bakhsh and Elahi Bakhsh accused and further stated that the said case was decided on the basis of compromise. They, however, denied the other contentions of the prosecution and stated that they have been involved in this case falsely. None of the accused chose to examine himself under section 340(2), Cr.P.C. or to adduce any defence evidence.

5. After going through the evidence produced by the prosecution, the trial Court acquitted Muhammad Elahi, Muhammad Ashraf alias Muhammad Razzaq and Muhammad Qasim while convicted Qadir Bakhsh under section 302, P.P.C., and sentenced him to imprisonment for life and fine of Rs. 10,000 or in default thereof R.I. for six months. He further ordered that a sum of Rs. 10,000 shall be paid as compensation under section 544‑A, Cr.P.C., to the legal heirs of the deceased, failing which the accused/appellant shall further undergo R.I., for six months. The accused/ appellant was further extended benefit of section 382‑B, Cr.P.C., vide judgment, dated 2‑2‑1991. The accused/ appellant has felt aggrieved of the said judgment and has filed the instant criminal appeal.

6. Argument have been heard and record perused.

7. It is contended by learned counsel for the accused/appellant that as many as 4 accused have been involved in this case, out of whom Qadir Bakhsh, Muhammad Elahi and Muhammad Ashraf alias Muhammad Razzaq have been shown to be armed with .12 bore guns whereas Muhammad Qasim was shown as empty‑handed, that the evidence against the present appellant as well as acquitted accused consists of statements of Mehr Khan complainant (P.W.2) and Allah Yar (P.W.3), that the Trial Court has disbelieved the statements of P.Ws. 2 and 3 so far as‑` the accused Muhammad Elahi, Muhammad Ashraf alias Muhammad Razzaq and Muhammad Qasim (since acquitted) are concerned, that the Trial Court has also disbelieved the motive aspect of the prosecution version as it appears in F.I.R. Exh.P.B., that the Trial Court has also disbelieved the factum of recovery of gun, live cartridges and a Jhola from Ghulam Qadir accused, that since statements of P.Ws.2 and 3 have been disbelieved to the extent of acquitted accused, so the same could only be relied upon to the extent of Qadir Bakhsh if there had been some independent corroboration as held in Muhammad Nawaz v. The State (1984 SCMR 190) and Misal Khan v. The State (1984 SCMR 485) and that as the prosecution evidence disbelieved qua acquitted accused has not been corroborated by any independent evidence, so the Trial Court was not justified in passing order of conviction against the appellant.

8. Conversely, the impugned judgment has been supported by the learned State counsel.

9. It is evident from the facts stated above that out of four accused nominated in the F.I.R., the fatal injury has been attributed to Qadir Bakhsh accused/appellant. His other co‑accused Muhammad Elahi and Muhammad Ashraf alias Muhammad Razzaq (since acquitted) have been attributed the same part, but it did not hit the deceased. The accused Muhammad Qasim has simply been ascribed the role of proverbial Lalkara and has been shown to be empty handed. To prove its stand, prosecution has examined as many as 12 P.Ws., but only the statements of Mehr Khan complainant (P.W.2) and Allah Yar (P.W.3) are relevant, as the other witnesses are of formal nature. The Trial Court has not believed the statements of P.W.2 and P.W.3, so far as they relate to the involvement of Muhammad Elahi, Muhammad Ashraf alias Muhammad Razzaq and Muhammad Qasim accused (since acquitted), but has relied upon their depositions to the extent of involvement of accused/appellant Qadir Bakhsh. It is an admitted proposition of law that if the statement of a witness is not believed qua one person, that has to be disbelieved qua other accused, unless the same is corroborated by some other independent evidence. In the instant case, independent evidence could be in the form of recovery which has also not been believed as no empties were recovered from the place of occurrence which could possibly connect the use of gun P.9 recovered at the instance of accused. The motive aspect of the prosecution version has also not been believed by the Trial Court. There was no independent corroboration of the statements of P.Ws.2 and 3 who were disbelieved qua the acquitted accused. Thus, the Trial Court could not pass an order of conviction on the basis of statements of P. Ws.2 and 3 which lacked corroboration by any other independent evidence. Reliance is placed on l Muhammad Nawaz v. The State (1984 SCMR 190) where it has been held that: "Keeping in view all these circumstances and the tenure of Trial Court judgment, it is safe to hold that the acquittal in reality was due to false implication. If that is so, then Nawaz appellant could not be convicted without corroboration, which (the recovery of hatchet) disbelieved by the High Court is not available. Otherwise too, we agree with the Trial Court that the eye witnesses needed corroboration which now is not forthcoming. The appellant, therefore, is entitled at least to benefit of doubt." Again it has been held in Misal Khan v. The State (1984 SCMR 485) that: "It goes without saying that the ocular testimony was interested and inimical and if it was disbelieved as against those whose appeals were dismissed it could not be accepted against the appellant without independent corroboration which was not available. Concluding we agree with the opinion of the Trial Court that for the reasons given by it, the involvement of appellant was not established beyond a reasonable doubt. "

10. The upshot of the above discussion is that prosecution has failed to prove the involvement of the appellant beyond a reasonable doubt. The appellant, therefore, is entitled at least to benefit of doubt. The appeal is accordingly accepted and he is acquitted. He is already on bail. His bail bonds stand discharged. N.H.Q./Q‑21/L Appeal accepted.