P L D 1979 Supreme Court 869 (PLP)

(ii) The discrepancy as to whether the first shot was fired by petitioner Ali Hassan or Bahadur; (iii) The presence of only three hatchet injuries on the body of Ghulam Hussain although the eye‑witnesses alleged hatchet attack by four persons, including the acquitted accused Arab; (iv) The lack of explanation by the prosecution about the hatchet injury found on the back of petitioner Daim; (v) The improbability of the petitioners allowing Qamaruddin to get away from the spot only after half‑an‑hour with his blood‑stained clothes so that he could go straight to the police station to make out a cast‑iron case against the petitioners; and (vi) The absence of any dragging marks on the body of the deceased Ghulam Kadir. We consider that these features of the case do need examination for the purpose of satisfying ourselves whether the petitioner's conviction is consistent with the established principles for the safe administration of criminal justice. We would accordingly grant leave to appeal."

8. We have heard the learned counsel for the parties and gone through the record. We are of the opinion that this appeal must be allowed for the reasons hereinafter following;

(a) Taking up the ocular evidence of Qamaruddin (P. W. 3) be is the real brother of the deceased. A close scrutiny of his testimony shows 14 that it was really doubtful as to whether he was at all present on the spot or saw the occurrence. He has deposed that he also was given a blow at the time of the occurrence by the butt of a gun by Ali Hassan. In the committing Court he stated that he was given a blow by a soil, and though he denied this statement later, but was duly confronted with his earlier deposition on the subject as Exh.

10. His brother Nizamuddin deposed that Qamaruddin was given a blow with a handle. Apart from this material contradiction and discrepancy there exists no medical evidence or medical report showing any injury on the person of this witness because he was not sent up for any such examination. Another thing which makes his presence on the spot as doubtful is that he had deposed that he was made to carry the dead body of a deceased from the spot to the house of the accused. Nizamuddin (P. W. 4) supported him in this respect and deposed that he, i.e. Qamaruddin (alongwith accused Ali Hassan and Ali Sher) carried injured Ghulam Hussain (which means that Ghulam Hussain was carried in an injured condition and not his dead body). Apart from the fact that this appears to be a very unnatural assignment even otherwise if this was true there would have obviously been human blood stains on the clothes of Qamaruddin (P. W. 3) as also on his body but remarkably enough his clothes though allegedly taken into custody vide Mashiranama Exh. 22, were not sent for any Chemical Examination. If really be had seen the occurrence or participated in it as alleged by him, this evidence should have been available as it constituted the hallmark of his testimony but as there was no such evidence, his statement cannot inspire confidence for even an otherwise unnatural role allegedly played by him. It further shows that even Mashirnama to this effect was not a genuine document because had it been so the clothes would have been sent for chemical examination. Again he had deposed that Ghulam Kadir deceased was dragged from the place of occurrence on the Highway to the village of the accused but strangely enough the medical examination of Ghulam Kadir does not contain any dragging marks on his body. Another factor to be taken note of is that he had deposed that Ali Hassan had fired on Ghulam Kadir from a distance of 60 feet. However, Dr. Shamsul Haque who performed the post‑mortem examination of Ghulam Kadir deceased stated that "on the front external injuries on the body of deceased Ghulam Kadir charring marks were present. According to "Mode" the charring marks can appear if the injury is caused at a distance of 6 or less than 6 feet. I also agree with that opinion." He further deposed that the fire on the deceased was made from a close range. This shows that Qamaruddin was not present at the spot because he was attributing a fire‑arm injury to Ghulam Kadir deceased from a distance from which it otherwise could not have been inflicted. The doctor further deposed that all the internal injuries on deceased Ghulam Kadir were the direct result of the external injuries which appeared to have been caused by one shot of a Gun. However, in the F. I. R. Qamaruddin had stated that one shot was fired by Ali Hassan on Ghulam Kadir. In the F. I. R. no accused was attributed any further fire in any manner. But in Court Qamarud din deposed that Babadur fired "twice or thrice but I did not count as to how much he had fired" (in the air). At this place the case enters into a further mystery because from the spot there was allegedly recovered only one empty vide mashirnama Exh. 21 which gave rise to a question as to whose shot it pertains. Here it may be mentioned that the aforesaid empty tallied with the licensed gun No. 12992 of Bahadur and not Ali Hassan but it is to be remem bered that Bahadur had only fired in the air and not on the deceased. This recovery in its very nature therefore does not connect Ali Hassan and as against Bahadur it is of no use because he is alleged to have simply fired in the air. Furthermore even though the empty and gun were allegedly recovered on 21‑12‑1970 but they were received by the Ballistic Expert only on 21-7‑1971 and the report was sent on 27‑5‑1972 (see pages 24‑25 of the printed paper‑book). Similarly regarding the other four accused it was stated that all of them gave hatchet blows to Ghulam Hussain but according to the medical examination he had only three such blows, which as is obvious do not tally with the number of the accused involved, viz. four who must have given at least one blow each because it was stated that they all gave blows. This gives rise to an other question 'as to which out of the rest of the four accused had not given any blow and which three alone gave the blows, if at all it could not have been given by any still less number of assailants. This aspect will ~ be attended to further in para. (c) below. (b) Another fact to be taken note of is that Daim accused had one injury on his back. He had reached the police station prior to the arrival of Qamaruddin (P. W. 3) and had narrated his version of the case already mentioned above. He was injured and the investi gating officer got him medically examined and as deposed by Dr. Shamsul Haq (P. W.) he had an incised wound 2 X x on the back of the right side of the chest which was "caused with some sharp cutting weapon such as a hatchet". Neither Qamaruddi nor Nizamnddin and rather no prosecution witness has explained the aforesaid injury on the person of Daim petitioner. This show that no prosecution witness was present on the spot or that he had not seen the occurrence or was deliberately suppressing the part played by him or others. There is then inconsistency between P. Ws. regarding the time of the occurrence. In the F. I. R. it is specifically stated that the occurrence took place at 6‑00 p.m. on 20‑12‑1970. On that date it was 20th of Shawwal and sunset was at 5‑04 p.m. which shows that it was an occurrence which had taken place much after sunset. Realizing that the‑ time specifically mentioned in the F. I. R. is going to raise a material point regarding visibility which will falsify the testimony of P. Ws. if they stated that they saw the occurrence at that late hours, Qamaruddin in Court stated that it took place at evening time, Nizamuddin stated that it took place at sunset time and Yousaf (P. W. 5) stated that Nizamuddin came to him at about sunset time. The F. I. R. shows that it was recorded at 8‑30 p.m. The distance being only two miles of metalled road, therefore, counting backward from 8‑30 p.m. even if a very char'‑ D table view in favour of the prosecution is taken and 1 hours are allowed to Qamaruddin for reaching the police station on cycle after all the role allegedly played by him, the occurrence time will fall well within darkness if not pitch darkness. (It may be noted that he had deposed that the occurrence had finished in 5/7 minutes and he remained in the houses of the accused for half an hour). The fact that the accused (whosoever they were) had hidden themselves in trees also lends support to the conclusion that their plan was to avoid visibility, and for that purpose obviously they would not have resorted to an attack in light or sunlight. The effort to bring the occurrence backward from 6.00 p.m. (the time mentioned in the F. I. R.) to sunset‑time therefore was an attempt to show that eye witnesses had seen the occurrence, which position of theirs even otherwise stands exposed due to the inherent fallacies in their testimony referred to above in detail. It is true that matters like timings of occurrences in criminal cases are not to he attended to by strict mathematical or clockwise calculations and that is not the attempt of this judgment either, but in certain cases as the present., the position is so obvious that for assessing the truth of a story these aspects may have to be kept in view in general. (c) The next eye‑witness is Nizamuddin (P. W. 4). He‑is a real brother of Qamaruddin (P. W. 3), and a nephew of the deceased. Though he ran away from the spot and had occasion to go to the police station and lodge the report but he did not do so. His statement is on the same lines as that of Qamaruddin with this very material difference that he does not state that Arab (acquitted) accused gave any hatchet blow to the deceased Ghulam Hussain though he was involved in the panel of the accused who came armed on the spot. In this matter, therefore, his evidence is at material variance from his brother Qamaruddin. He deposed that he went to his father Usman and his uncle Yousaf (P. W. 5) (brother of the deceased) to whom he narrated the occurrence and who went to the police station to lodge the F. I. R. (though the F. I. R., it is to be noted was lodged by Qamaruddin who had gene there prior to them). The statement of this witness was recorded by the police the next day. His statement can also be subjected to the same criticism as made above on his brother Qamaruddin. The next witness is Yousaf (P. W. 5). He is not au eye‑witness of the occurrence and therefore his testimony is not of much help. All these witnesses as above stated are related inter se and to the deceased, and as explained earlier their statements suffer by common inherent fallacies and could not have been relied upon, unless there was strong independent corroboration which however, does not exist in any form. (d) We are of the opinion that the F. I. R. in this case was neither promptly recorded and nor was it the first rate or independent version of the occurrence. It has come on record that prior to the arrival of Qamaruddin (P. W. 3) (first informant) in the police station, Daim petitioner had already reached there in an injured condition and had reported his version of the occurrence. Though Qamaruddin admits that when he arrived at the police station, Daim was already present there but states that he had no injury. However, the Investigating Officer (P. W.9)has deposed that Daim did have an injury on his person. Yousaf (P. W. 5) brother of the deceased and father of Qamaruddin and Nizamuddin, Suleman (brother of the deceased) and Muhammad Parial (son‑in‑law of Suleman brother of the deceased) (his sister is married to Yousaf (P. W. 5) also reached at the police station, the same night and almost the same time. Out of them Qamaruddin and Muhammad Parial were taken to vardat. S. H. O. Mukhtar Ahmad (P. W. 9) stated that he recorded statements of Yousaf and Usman in the village next morning after he had sent the dead bodies for the post‑mortem but Yousaf (P. W. 5) stated that their statements were recorded in the police station on the same night, i.e. night of occurrence. The presence of all the aforesaid persons in the police station in the manner and circumstances mentioned above creates a serious doubt that the F. I. R. was lodged after due planning and deliberation, after obviously seeing Daim present at that very place with a different version. Daim's case was that occurrence had taken place in the village where the dead bodies of the deceased were reported lying and to explain away that circumstance Qamaruddin took up the stand that the dead bodies were removed from the main road to the village in which removal be also joined under threats of the accused. For this purpose he (if one can say so) offered his clothes which were allegedly besmeared with blood and which on the aforesaid representa tion of Qamaruddin at, that time were immediately taken into custody by the; Police, but strangely they were never sent for any Chemical Examination to find out whether they contained any blood or human blood possibly because later the aforesaid plea of Qamaruddin turned out to be a bluff. The High Court used the recovery of the clothes of the complainant as a proof of his presence on the spot and of his participation in removing the dead bodies under the threats of the accused by observing that they were stained with human‑blood but these clothes were, as now admitted before us by the learned. State Counsel never sent to any chemical analyst for examination his is a clear misreading of evidence on a very vital aspect of the case which really tilted the scale of justice to an obvious wrong conclusion. (e) At this place notice may be taken of the manner in which the investigation in this case was made. Even though Daim was admittedly present in the police station and also had an injury on his person be was not taken into custody at that time. The S. H. O. alongwith Qamaruddin complainant and' Mashir Muhammad Parial left for vardat and then onward to the village where dead bodies of the two deceased were lying in the compound of the houses of the accused. According to Qamaruddin (P. W. 3) "we passed night at the houses of the accused where the dead bodies were lying. I did not see the accused in their houses during the whole night." According to Muhammad Parial (P. W. 7) (at page 27) when we reached there all the accused persons were present in their houses and police arrested them. Accused Daim was also present in his house when we reached there. According to Ghulam Mustafa (S. H. O.) (P. W. 9) he stated that he arrested the accused next morning after sending the dead bodies for post‑mortem examination. We have failed to understand that when the accused were available during the night why were they not promptly arrested at that time. Again when the Police reached the village it found a country‑made pistol and hatchet and six empties lying by the side of Ghulam Hussain deceased. These were never sent to any ballistic expert, and apparently no attempt seems to have been made to recover any gun from the houses of the prosecuting party. Similarly it is alleged that certain recoveries were made at the pointing out of Ali Hassan in the form a bicycle of the deceased, and articles like a basket full of vegetables and tins of ghee which the accused allegedly removed away from the first spot. The learned Additional Sessions Judge disbelieved the same observing that "there was no necessity for the culprits to conceal the said bicycle and other articles belonging to the deceased. It seems that such recoveries have been intentionally introduced to strengthen the prosecution case." Even otherwise according to Muhammad Parial (P. W. 7) "the cycle was .produced from Lohari Wah it was not produced from the bridge or Bund Wah. I have not stated in the lower Court that the cycle was produced from the bridge Bund Wah" (confronted so recorded) No doubt the High Court differed from the learned Additional Sessions Judge on his general observation quoted above but in our opinion the difference in the two statements of the Mashir Muhammad Parial with which he was confronted on the place of recovery of cycle is sufficient by itself to discard the said recoveries as indicated in one Mashirnama Exh./25. This finding of ours, it is obvious, must reflect on the similar other recoveries to which the witness was the same Mashir. Our reference here is to blood‑stained hatchets allegedly recovered at, the instance of Daim, Moharram and Ali Sher petitioners from underneath their cots ‑ in their houses. It is to be noticed that the police and the party stayed the whole night in these houses. According to Ghulam Mustafa (S. H. O.) (P. W. 9). "Houses of accused Daim, Ali Hassan and Ali Sher are within the same hedge, while houses of Moharram and Bahadur had a common hedge; accused Arab resides in a separate house. Accused Ali Hassan and Daim reside in the same house". The weapons according to the S. H. O. were lying just under the cots of the‑ accused. It is not believable the such incriminating articles would have been left so open and exposed and not hidden. The relevant Mashirnamas are Exh./27 (regarding Daim), Exh./28 (regarding Moharram) and Exh./30 (regar ding Ali Sher). The Mashir witnesses were Ghulam Kadir and Muhammad Parial. The former was not produced. The latter namely Muhammad Parial is a close relation of the complainant and the deceased as above mentioned. His village was at a distance of 2 miles from the vardat. He deposed that he was on that day in Mehar town, and of his own went to the police station, whereas the S. H. O. stated that he was sent for through a constable from his village. From the police station he accompanies the S. H. O. and goes to the vardat and then to the houses of the accused. No respectable of the concerned localities it appears was taken as a mashir and the picking up a man of a different place who whether himself voluntarily went to the police station or was specifically sent for leaves much to be desired for his selection as a mashir. Some o G his mashirnamas having been doubted as mentioned above, the remaining Mashirnamas also cannot be considered to be above board, unless there be any independent evidence in their support which however is completely lacking in this case. Even otherwise he is a close relation of the complainant party and in the circumstances it was not safe to rely upon him. (f ) As regards the motive in the F. I. R. it was alleged that "the accused have committed the murder and caused injuries because some days back accused Ali Hassan had abducted the daughter of Balach Khoso and married her. Then Balach migrated and lived with his relations in our village. In the meantime Ali Hassan tried to compromise with Balach but Balach did not settle with Ali Hassan. Therefore, the accused threatened Balach that they would not spare him and that accused suspected that Balach did not settle with them at the instigation of Ghulam Hussain. On the previous day Balach was migrating to Jacobabad and therefore the suspicion of the accused was confirmed that Ghulam Hussain's side people were instigating Balach that he may go (to Jacobabad) and file cases against the accused. It is on account of this enemity that accused caused injuries and committed the murders." However, the complainant tried to show in Court that he had no concern whatsoever with Balach and that accused Ali Hassan had not made any application and stated that Mst. Asiat daughter of Balach who was abducted by Ali Hassan was not related to them in any way and that they had no grievance whateoever when Ali Hassan had enticed her away (to his relationship, however, we shall presently refer). It was admitted by the complainant that the way from Mehar town to their village Bajhi Khan Khoso (Taluka Mehar) passes by the side of the houses of the accused situated in village Bundo (Taluka Mehar) but no untoward incident took place during the time of the incident of Mst. Asiat till the day of present incident although they passed daily. He also stated that the deceased ha never prevented Balach from compromising with the accused an that the deceased never told Balach to migrate to Jacobabad and file cases against the accused. All this will rather show that in the aforesaid context and the picture presented by the first informant the accused would have had no motive against the deceased an that the prosecution has miserably failed to establish the same. (g) We have at an earlier place observed that the motive if at all would, have been on the side of the deceased and the complainant to involve the petitioners, or attack them. In this respect we are supported from certain very important circumstances which have been brought on record by the learned public prosecutor in all fairness to all concerned. The learned Public Prosecutor as page 46 of the record shows applied for production of the record of evidence and file of the complaint case which Daim had filed when Polio did not follow up the matter on his counter F. I. R. Exh. 35. (The aforesaid complaint was dismissed by the committing Court on 25‑11‑1971 vide Exh./44 inter alia on the ground that in the cross F. I. R. the present petitioners had been challaned and that there they had advanced the same pleas as they had raised in the complaint etc.) Mst. Asiat the abductee appeared as a witness in that case Exh./40 was a certified copy of her deposition which was produced by Muhammad Yaqub (P. W. 10) in this case. In that statement at page 52 she had deposed that "accused Balach is my father. Accused Bakshal is my brother. Accused Duro is our relation. Deceased Ghulam Hussain and Ghulam Kadir, accused Suleman and Yousaf are my maternal uncles". This will show that though the complainant Qamaruddin ' (P. W. 3) in this case was showing total lack of concern or connection with Balach or his daughter Mst. Asiat but actually they were their close relations. Hence the motive, if at all would be on the family and relations of Balach namely the deceased who were the maternal uncles of Mst. Asiat to avenge the insult brought to them by Ali Hassan in abducting their closely related girl and not on the abductor wipe off that family or their relations. The High Court gave no finding on the existence of motive at all not to speak of the fact as to what the motive was and where it lay. Another circumstance to be taken note of is that Exh./51, Exh./52, Exh./53 and Exh./54 show that Bakhsh son of Balach filed an application for recovery and production of his sister Mst. Asiat which was dismissed when Mst. Asiat admitted her marriage with Ali Hassan and expressed a desire to live with him. This shows that effort was on the side of Balach and her relations to recover the girl and this fits in with the defence plea that Balach family/or baradari would have the motive to attack them for recovery of they girl. If the case is looked at from this angle it will be self evident that all the P. Ws. were not only related inter se but also belonged to a family which can reasonably be said to have had a common grudge and enmity against the petitioners, particularly Ali Hassan. Their statements in the circumstances should not have been taken as a gospel truth without any independent corroboration which in the instant case was totally lacking. (h) The courts below were impressed with the story of the removal of the dead bodies because the S. H. O. had deposed that there was a trail of blood from the place of occurrence to the houses of the accused at about 2/3 places. This however could not be conclusive because Daim petitioner also bore an injury on his person which was according to the doctor caused by a hatchet. It is a common ground that he also went to the police station, and as such the possibility of his blood having fallen at a few points could not have been ruled out, apart from the even otherwise unnatural story of carrying the dead bodies with the help of Qamaruddin which has not found our approval. The courts below in this respect gave the benefit of doubt to the prosecution instead of the defence. Again the High Court observed that the injury on Daim "must have K been self‑suffered" but this was against the evidence of the doctor who had said that it was caused by a hatchet and no question was asked by the prosecution to find out whether it could be a self- suffered injury. The High Court view on the subject was based on conjecture and cannot be upheld in the context hereinbefore stated.

9. The upshot of the above discussion is that the High Court in this case‑(it may be mentioned with due respect)‑‑did not apply the correct principles of law in the matter of administration of justice in criminal cases of this type; benefit of doubt in all material respects was given to the prosecution; various salient features of the case were omitted and not brought under proper consideration; a crime empty recovered from the spot was; wrongly attributed to the gun of Ali Hassan despite a contrary report of the Ballistic Expert; record was misread when it was stated that clothes of the complainant despite the fact that they were never sent to chemical analyst were soaked with human blood and this finding was without any evidence whatsoever to support it; the effect of medical evidence regarding charring marks on the dead body of the concerned deceased was not property noticed or dealt with; benefit of doubt in the matter of possibility of visibility or otherwise of the occurrence and the accused, and on various matters as above explained was given to the prosecution; the point that F. I. R. was given after due deliberations of all relevant P. Ws. who were close relations of the complainant party and that their evidence was contradictory in material respects as highlighted above was not attended to; and above all the case was decided with reference to the weakness of the defence instead of the strength of the prosecution version on its own merits. The judgment of the High Court it appears first rejected the defence version and after that held by process of elimination that the prosecution version was correct. It is to be stated that on the same evidence one accused Arab was acquitted and this was an indication by itself to look for independent corroboration which however was not forthcoming in this case. It was also ignored that the investigation in the case left much to b desired, and all the recoveries were supported only by the solitary witness Muhammad Parial who was a close relation of the deceased and Balach and no other independent evidence existed on record in his support. The case was thus not decided with reference to relevant principles applicable to criminal cases of this type and the judgments of the courts below cannot be allowed to stand. The appeal is accepted and the accused are acquitted.

10. For the reasons to be recorded later a short order to this effect was passed by us on 5‑5‑1979. The present judgment provides the reasons for the same. S. A. H. Appeal accepted.