1974 P Cr (PLP)

As against this, the learned trial Judge examined 15 persons as C. Ws., out of whom 10 persons, namely, Jaffer C. W. 4, Sanaullah C. W. 5, Ghulam Sarwar C. W. 6, Ghulam Farid C. .W. 7, Ali Muhammad C. W. 8, Aslam Khan C. W. 9, Mst. Sardaran C. W. 10, Mst. Hakan C. W. 11, Chiragh Din C. W. 12 and Mst. Ghulam Fatima C. W. 13 gave an eye account of the occurrence which, according to them was split into two parts. As already mentioned C. Ws. 4 to 8, stated about the first part of the incident while C. W. 9 to 13 deposed with regard to the second part of the occurrence. There were thus two separate versions before the learned trial Judge, who after considering the evidence on the record` disbelieved the C. Ws., and accepted the version put forward by Muhammad Ismail P. W. 16, Nawab Din P. W. 17 and Muhammad Abbas P. W.

18. He also believed the statements of Jalal Din P. W. 13 and the two wajtakkar witnesses, namely, Muhammad Waris P. W. 14 and Bashir Ahmad P. W. 15, axed taking this evidence together with the medical evidence convicted all the appellants under section 302/34, P. P. C. and sentenced them to transport ation for life, Hence the present appeal and the revision for enhancement filed by the father of the deceased, which shall be disposed of by a single judgment.

6. We have, heard Ch. Nazir Ahmad Khan and Mr. M. A. Bajwa. Advocates, both of whom represented the appellants, Malik Mohammad Akbar, Advocate for the State and Raja Muhammad Anwar, Advocate, who appeared on behalf of the petitioner in Criminal Revision No. 650/71, for the enhancement of sentences. We have also gone through the entire record and the judgment of the learned trial Court. The learned counsel for the appellants argued that all the three eye‑witnesses namely Muhammad Ismail P. W. 16, Nawab Diva P. W. 17 and Muhammad Abbas P. W. 18, who are related inter se as well as to the deceased, had been found lay the learned trial Judge, himself, to the untruthful witnesses to some extent. In this connection he referred to paragraph No. .19 of his judgment wherein he has observed that:‑ "Ismail, Nawab Din and Abbas P. Ws. have denied to be related to Ghulam Muhammad, the father of the deceased. Their statements are false to this extent.' He pointed out that according to the evidence on the record all the three eye‑witnesses are shown to be related to the demand. Muhammad Ismail P. W 16 (the complainant), is the real uncle of the deceased and while Nawab Din P, W. 17, is the father‑in‑law of the maternal uncle of the deceased and Muhammad Abbas P. W. 18 is the grandson tai Jalal Din P. W. the brother of Nawab Din P. W. The counsel also points out that they are also inimical to the accused party inasmuch as they were: involved in a proceedings under section 107/ t 51, Cr. P. C. as against the accused party. He contended therefore that these witnesses were interested witnesses arid their statements should not be relied without independent corroboration qua each one of them. The counsel then went on to argue that in paragraph No. 36 of his judgment the learned Addl. Session's Judge had himself found the C. W. to be independent witnesses and he had therefore erred in disbelieving their statements. In. support of this the learned counsel referred to the first three lines of paragraph No. 36 of the impugned judgment which read as follows:-- 'The testimony of the C. Ws. has been examined and appreciated above in detail. These C. Ws. were the independent witnesses which were examined by Muhammad Nawaz S. L". The learned counsel pointed out that the statements of the P. Ws. were recorded first by Muhammad Nawaz S. I. (P. W. 21) without undue delay. He had examined Ghulam Sarwar C. W. 6 on the very first day and load recorded the statements of the remaining C. Ws. on the next day, fie also pointed out that the three eye‑witnesses produced by tire prosecution admittedly had their houses at considerable distance from the place of occurrence, which showed that they were chance witnesses who admittedly happened to be proceeding from the railway station towards the village abadi and were able to see the occurrence merely by chance, while some of the C. Ws. have their houses an the very street in which the occurrence took place. Ch. Nazir Ahmad Khan, the learned counsel however admitted that he could not urge touch in favour of Muhammad Rafiq appellant who had been attributed the fatal blows by both sets of the witnesses, but as to the remaining three appellants he submitted that the prosecution had cot proved its case against them beyond reasonable doubt and drat it: any case in view of the testimony of the witnesses examined by the Court who gave an altogether different version the prosecution case against them eras doubtful. He therefore, prayed for the acquittal of Ghula'm Sarwar, Muhammad Sharif and Muhammad Siddiq appellant.

7. We have carefully examined the above‑mentioned contentions. It is no doubt true that according to the evidence on the record the three eye‑witnesses produced by the prosecution namely Muhammad Ismail P. W. 16, Nawab Din P. W. 17 and Muhammad Abbas ‑P. W. 18, are related to the deceased and that they deliberately suppressed their relationship with the deceased, obviously, in order to show that they were disinterested witnesses. As such the learned trial Judge was justified in concluding that they were false to some extent. We therefore agree with the appellants' counsel that their statements should be carefully a scrutinized arid should riot be believed without independent corroboration. From a reading of their statements we also find that they have tried to suppress the truth in other aspects as well and had also made certain additions at the trial stage in order to bring the prosecution case in conformity with some of the established facts. Muhammad Ismail P. W. 16 and Nawab Din P. W. 17 denied having been challaned under section, 107/151, Cr. P. C alongwith Ghulam Muhammad, the father of the deceased but when confronted with their statements before the C. M. it was found that they had admitted this $act at that stage. There was thus a deliberate attempt on their part to suppress a fact tending to show their previous enmity with the accused party. Similarly, Muhammad Ismail P. W. 16 denied that he had engaged 4 counsel to conduct the present case (at the inquiry stage), but when confronted with his statement before the C. M. it was found that he had admitted having engaged a counsel in this case. He also denied having filed a revision petition in the High Court in connection with this case but he had stated before the C. M. that he had filed such a revision. We therefore agree with Ch. Nazir Ahmad Khan that the testimony of these eye‑witnesses should not be believed without independent corroboration qua each of the appellants showing his complicity in the crime.

8. We may now examine the two versions of the incident given at the trial one by the prosecution witnesses and the other by the C. Ws, According to the version put forward by a number of disinterested persons, i.e., the C Ws. (who had admittedly appeared before the Investigating Officer voluntarily on the same or on the next day of the occurrence), only Muhammad Rafiq appellant had injured Muhammad Nawaz deceased and that too at two different places i.e. first with a kassi at a place shown as point No. 1 an the site‑plan (Exh. P. J), where after he had come armed with a pistol and shot at the deceased at a. place shown as point No. 2 in the site‑plan, which is situated in front of the house of Aslam Khan C. W. (and is at distance of 103 yards from point No. 1), But according to the prosecution version as stated in the F. I. R., and supported by Mohammad Ismail P. Ws 16, Nawab Din P. W. 17 and Muhammad Abbas P. W. 19, the entire occurrence had taken place at the place shown as point No. 1 in the Kite‑plan. Blood‑stained earth was recovered by Muhammad Nawaz S. P. P Ws. 21 from point No. 1, but the S. I. also admitted that he had inspected the place (point No. 2 in the site‑plan) near the house of Aslam Khan C. W, and had found that the earth froth that place had been removed and the place had been broomed‑up. In order to meet any argument based on the fact that blood‑stained earth had been removed from point No. 2, in front of the house of Aslam Khan P W. the above‑mentioned three eye -witneses introduced an improvement at the trial, i.e. that when they were carrying Muhammad Nawaz (deceased), in an injured condition, on a cot to the house of his father Ghulam Muhammad, Jalal Din Lambardar P. W. 13 Met them in the way, to front of the house of Aslant Khan C. W. that the latter asked them as to what had happened whereupon they placed the cot on the ground, at a place in front of the house of Aslam Khan C, W. aria told him about the incident in the meanwhile ; that Riaz, the younger brother of the deceased, who had beers sent by the P. Ws. to inform the father of the deceased about the incident, returned and informed them that Ghulam Muhammad (the father of the deceased) was not at home and that in view of the serious injuries received by Muhammad Nawaz deceased, Jalal Din P. W. 13 advised the P. Ws to take the deceased straight to Jaranwala hospital by train. It was sought, in this manner, to explain the possibility of blood having fallen at a place in the street (shown as point No, 2 in the site‑plan) in front of the house of Aslam Khan C. W. In fact Muhammad Ismail P. W, 16 has gone to the extent of saying that the blood might leave fallen at the place where they bad placed the cot (on which they were carrying the deceased in air injured condition) in the bar. However, none of the witnesses had mentioned this fact either before the police or in their Statements before C. M. Nor is it mentioned in the F. I. R. Jalal Din Lambardar P. W. 13 was of course produced to support this version but as is admitted by him in the very beginning of his cross‑examinations he is related to the eye‑witnesses. Hence he is also related to the deceased: It is obvious therefore that the prosecution witnesses were conscious that the blood had fallen at point No. 1 and had 16 be explained. This lends support to the version give by the C. Ws. Moreover, he i.e. Jalal Did P. W. 13), was examined by the police under section 161, Cr. P. C. about a month after the occurrence. The effect or which shall be considered presently. The two wajtakkar witnesses namely Muhammad Waris P. W. 14 and Mashir Ahmad P. W. 15, who saw, the accused immediately after the occur rence, were admittedly examined by the police after a lapse of 1i months. In view of the observations of the Supreme Court in Siraj Din v Kala (PLD 1964 S C 26) Sadiq v. State (P L D 1960 S C 223) and Shahzada v. Hamidullah (1968 P Cr. L J 176.), the testimony of these wit nesses as also of Jalal Din P. W. 13, who was examined after about one month has to be disregarded. Muhammad Shafiq P. Ws 8 who is said to be a person whom the deceased had gone to see off at the railway station, has been disbelieved by the learned Sessions Judge. The learned State counsel has also not pressed us to believe his testimony. We need not therefore, discuss the same.

9. As already observed in paragraph No. 7 above, the testimony of the eye‑witnesses produced by the prosecution‑ is such as should not be relied upon without independent corroboration. For this purpose the prosecution has relied on the recovery of pistol P. 4 and kassi P. 6 but according to Muhammad Nawaz S. I. (P. W. 21), who made these recoveries, both the weapons were produced by Muhammad Rafiq appellant. As such they go to, corroborate the version given by the eye‑witnesses only with regard to Muhammad Rafiq appellant. Apart from this Sardar Saeed Khan P. W. 11, the Fire Arms Expert, has opined vide his report Exh. P. M. that the two bullets P. 9 and P. 10 found lodged in the skull of the deceased during the autopsy, had been fired from pistol P.

4. This shows that both the bullets were fired by the same person end not by two persons namely Muhammad Rafiq and Muhammad Sarwar as alleged by the eye‑witnesses produced by the prosecution. These facts not only go to falsify the version put forward by the prosecution but at the same time they tend to support the version given by the C. Ws. that it was only Muhammad Rafiq appellant alone who had committed the crime.

10. We also notice that some of the C. Ws. are `natural witnesses', a their houses are situated in the same street. For instance Jafar C. W. 4 who has testified with regard to the first part of the alternate version and Aslam Khan C. W. 9 who has testified with regard to the second part o that occurrence are admitted by Muhammad Ismail P. W. 16, to be residing in the same bazar in which the occurrence took place. They at least are, therefore, natural witnesses. As against this, the three eye‑witnesses produced by the prosecution, are admittedly chance witnesses as they merely happened to be passing near the place of occurrence at the particular time. Apart from this, on comparing the testimony of the P. Ws. and the C. Ws. about the occurrence, we feel that the testimony of the C. Ws. is more reliable Moreover we find that the testimony of the three eye‑witnesses produced by the prosecution is contradicted by the medical evidence while that of the P. Ws, is not According to Dr. Abdul Ghafoor who had examined Muhammad Nawaz, deceased, had received the following injuries: (1) A fire‑arm wound x brain deep just above the outer end of left eye‑brow and there was acchymosis around left eye. (2) A fire‑arm wound ' x ' brain deals on left side of fore‑head. 2' above the middle of left eye‑brow, Brain matter was coming out of the wound and there was acchymosis around right eye. (3) A fire‑arm around through and through on the back of left hand on inner side with an but let wound ' x ' on palmer side one inch from the wound of inlet. (4) An incised wound 1 ' x ' x bone deep on left side of face I/r in front of left ear. The bone underneath was cut. (5) A contused wound 1 ' x ' scalp deep on left side of head 2 above left ear. (6) A contused wound ' x 1/8' x skin deep ' in front of injury' No. 5. (7) A contused wound x 1/8' x skin deep ' below injury No. 5. (8) A contused wound 1' x 1/' x scalp deep on left side of back of head 2' behind injury No. 5. (9) A contused wound 1' x ' x scalp deep on the right side of back of head 3 behind right ear. (10) A contusion mask 2' x ' on the right side of forehead ' above right eye‑brow. All the injuries are said to have been caused at the same time. Injury No. 4 which is an incised wound and injury Nos. 5 and 10 which are contused wound and, contusion mark could easily have been caused by a kassi and in fact according to the prosecution itself the said kassi was used during the incident. Injury Nos. 1, 2 and 3 are fire‑arms injuries. According to each of the three eye‑witnesses Muhammad Rafiq and Ghulam Sarwar appellants had fired 4/5 shots at the deceased from a distance of 5/6 karams 25/30 feet), which had hit him. But we find from the doctor's evidence that the deceased had received only three fire injuries. Injury Nos. 1 and 2 were on the forehead of the deceased, without any wound of exit, while injury No. 3 was a `through and through' injury on the back of the left hand of the deceased, the outlet wound being on the palmer side of the hand. Ch. Nazir Ahmad Khan, the learned counsel for the appellants argued that this injury on the hand can be explained only in one way, namely that after the deceased had received the first pistol shot on his fore‑head he involuntarily placed the palm of his left hand on his forehead and when a second shot was fired at his forehead by Muhammad Rafiq appellant, it pierced through the back of his left hand and lodged itself in the skull. This explanation appears to be plausible. We are therefore of the view that while the medical evidence contradicts the statements of the eye witnesses produced by the prosecution, it supports the testimony of the C.Ws. As already mentioned above Ch. Nazir Ahmed Khan admitted that he could not say much in favour of Mohammad Rafiq appellant. Mr. M. A. Bajwa who too appeared for the appellants could also not advance any cogent argument as to why the testimony of the disinterested eye‑witnesses should not be believed against him. It will be noticed that even if the testimony of the eye‑witnesses produced by the prosecution, is believed, the same is corroborated only with regard to Muhammad Rafiq appellant. Thus while the case against Ghulam Sarwar, Muhammad Sharif and Muhammad Siddique appellants may be considered to be doubtful that against Muhammad Rafiq appellant stands established no matter which set of witnesses is relied upon: As such we accept the appeal of Ghulam Sarwar, Muhammad Sharif and Muhammad Siddique appellants and reject that of Muhammad Rafiq appellant.

11. We now take up Criminal Revision No. 650/71 filed by Ghulam Muhammad, the father of the deceased for enhancement of the sentences of transportation for life awarded to the appellants. Raja Muhammad Anwar, the learned counsel for Ghulam Muhammad petitioner in this revision, has submitted firstly that there were no mitigating circumstance in the case and that the reason given by the learned trial Judge was no substantial enough for awarding him the lesser penalty. We are not inclined to agree with this contention. According to the F. I. R. itself the motive for the offence was that Muhammad Nawaz deceased had illicit connection with Mst. Seeman the sister of Muhammad Rafiq appellant. We are o the view that this does constitute a mitigating circumstance entitling him leniency. The learned counsel for the petitioner contended next that the learned trial Judge had omitted to award compensation under section 544‑A, Cr. P. C. which is a mandatory provision. We agree with this contention and respectfully following the observations of the Supreme Court of Pakistan in Muhammad Sharif v. Saddar Din (1971 Law Notes 202), we order Muhammad Rafiq appellant to pay a sum of Rs. 2,000 as compensation under section 544‑A. Cr. P. C. to the father of the deceased failing which he is ordered to undergo further two years' R. I. This disposes of Criminal Appeal No. 446 of 1971 as well as Criminal Revision No. 650 of 1971. Order accordingly