1975 P Cr (PLP)

6. The prosecution case has been supported by 23 witnesses and is mainly based on the circumstantial evidence. It consists of the following categories:‑ (i) the evidence of motive, (ii) evidence of wajtakkar witnesses namely, Sher Muhammad P. W. 16 and Adil P.W. 17, (iii) the evidence of foot trackers, (iv) the evidence of Naseer P. W. 11 who is said to have been approa ched to act as hired assassin for the killing of the deceased or his father, (v) the evidence of recovery of crime empty P. 2 and that of pistol p. 4 supported by the opinion of Syed Qurban Raza P. W. 2, the Fire Arms Expert, (vi) the medical evidence, and (vii) evidence of extra‑judicial confession before Dholar and Jagdev P. Ws.

7. The case of the defence is that of bare denial. The appellant has however, denied the recovery of pistol P. 4 at his instance and stated that before the identification parades were held. he was shown to the wajtakkar witnesses as well as his foot‑prints were made available to the trackers. He further stated that he has been involved on account of suspicion and the witnesses had deposed against him because they were friends of Manzoor Ahmad P. W. 22.

8. We have hoard the learned counsel for the defence as well as the learned counsel for the State and have perused the record very carefully with their assistance. On the very outset it may be pointed out that the learned trial Court has disbelieved the evidence of extra judicial confession provided by Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 and has, similarly, discarded the evidence of wajtakkar witnesses namely, Sher Muhammad P. W. 16 and Adil P. W.

17. It has also refused to believe the story of Naseer P.W. 11 who stated that the appellant as well as his co‑accused approached him to hire his services for killing some body. The learned trial Court has based the conviction of the appellant on the basis of motive as proved against him, re covery of crime empty P. 2 from the spot which ultimately matched with pistol P. 4 recovered at the instance of the appellant. It has also believed the evidence of the trackers who correctly identified foot‑prints of the appellant which he had left near the place where the deceased was murdered. The learned counsel for the defence has forcefully contended that the evidence of motive hardly stands proved against the appellant that the track evi dence was of very weak and flimsy nature and it was highly improbable that the tracks would be covered alongwith the crime empty at the spot as stated in the case of the prosecution. He further challenged the veracity of recovery of pistol P. 4 said to have been recovered at the instance of the appellant and contended that all this evidence has been fabricated in order to involve the appellant against whom father of the complainant harboured, mere suspicion.

9. The learned counsel for the complainant has also been beard although his revision petition against the acquittal of Yaqub Ali co‑accused was not admitted to regular hearing. The order of the Court was that it should be heard alongwith the appeal. We have allowed him to address us so as to learn his point of view and to judge the force of arguments with regard to the finding of the learned trial Court by which it has held Yaqub Ali co‑accused not guilty and has also disbelieved quite a substantive part of evidence visa‑via the appellant. It has been contended that Yaqub Ali (acquitted‑accused) was equally guilty as he had instigated his son (the present appellant) to commit the murder of Manzoor although by mistake instead of shooting Manzoor Ahmad he had shot his son Tariq Manzoor deceased. According to the learned counsel this contention of his stood proved by the extra‑judicial confession of the appellant himself who impli cated his father as a collaborator in the crime. It was submitted that the learn ed trial Court was not justified in rejecting the evidence of Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 who were independent witnesses and were also distantly related to the appellant's family. It has been further urged that the evidence of wajtakkar witnesses Sher Muhammad P. W. 16 and Adil P. W. 17 and Haitam P. W. 14 was a truthful and natural account and there was no sound reason given by the learned trial Court to discard it. Similarly, he has argued that the evidence of Naseer P. W. 11 was an important link which showed the animus of the appellant and his father against Manzoor Ahmad and it should have been given due im portance. We have scrutinised the evidence of all these witnesses with great care and have also perused the reasoning by which the learned trial Court had arrived at the conclusion that all this evidence was unworthy of reliance. After going through this exercise, we have no hesitation to conclude that the learned trial Court was fully justified in placing no reliance on these pieces of evidence which the prosecution had tried to exhibit as links in the chain, to prove the motive as well as the commission of actual crime by the appellant at the instigation of his father Yaqub Ali co‑accused. The story of Haitam P. W. that the appellant after committing the murder went to the Dhari of Haitam to disclose his identity, by itself neither seems natural nor probable. Why should a murderer after committing the crime make himself available to persons who knew him well, without any rhyme or reason. The conduct of Haitam P. W. 14 is still more unnatural as there is no explanation by the prosecution as to why he did not tell the track party about the identity of the culprit when they had reached him. The natural reaction of the culprit on the barking of the dogs would be to move away and not to stand still so as to be questioned and identified. Besides our own reasoning, we are in full agreement with the various reasons given by the learned trial Court in paragraph No. 29 of its judgment at page 136 of the Paper Book, by which it has disbelieved Haitam P. W.

14. The story of Sher Muhammad P. W. 16 and Adil P. W. 17 who claimed to have seen the appellant in the lights of their jeep is equally without substance. The thing which a culprit was expected to do was to keep away from the head lights as well as from the road to avoid being noticed by the passers‑by, particularly, at that odd hour of the night, while he was conscious of the chase behind him. He would easily see the lights from distance and thus would manage to be away to some farther place in the field which would be so easily available in those environments. The statement of Naseer P. W. 11 who, it was said, came forward to tell the Court that the appellant and his father Yaqub Ali (acquitted‑accused) approached him for his ser vices to destroy an enemy‑is another very poor attempt on the part of the prosecution to show venom of the appellant against Manzoor Ahmad P. W.

22. In fact it strengthened the case of the defence, as it proves once for all that the appellant and his father were cowardly sort of people who considered themselves incapable of settling their accounts and were looking to others to come forward and satiate their thirst of vengeance. We are hardly impressed by this sort of evidence and feel satisfied that all these four witnesses discussed above, have been rightly disbelieved by the learned trial Court. In the light of the above discussion, we find neither any force nor any substance in the contentions of the learned counsel for the complainant and thus these stand repelled.

10. The case of the prosecution now mainly rests on the evidence of motive, recovery of pistol P. 4 and its matching with crime empty P. 2 and that of track evidence. In the face of the fact that the extra‑judicial con fession has been excluded from evidence, the prosecution is only left with solitary statement of Manzoor Ahmad P. W. 22 to prove its case regarding the motive of the appellant and his father to kill him. To lend support to this statement of Manzoor Ahmad P. W. reliance has been placed on a letter Exh. PJ which Yaqub Ali co‑accused had admitted to have written to S. I, after the incident. This admission was made by him in a statement recorded under section 342 Cr. P. C. before the learned trial Court. We find in the statement of Manzoor Ahmad P.W. 22, that he appeared as a prosecution witness in a case relating to the murder of Zulfiqar Ali, the brother of the appellant, which ended in conviction although the punishment awarded by the Court was only four years' R. I. Later on, in an appeal before the High Court the same was enhanced to 10 years' R. I. Accord ing to Manzoor Ahmad P. W., the appellant's father nourished grudge against him and held him responsible for the light punishment. Thus many a time he told the P. W. that if his son was murdered then only he would know the pangs of this pain. The story, as narrated by this P. W. in no way gives impression that he had played foul with the appellant's family and thus initial punishment awarded by the trial Court, was the result of his like‑warm attitude or open hostility. If it was considered that the statement of this P.W. was a very crucial statement then in all probability the High Court would not have enhanced the punishment of the culprit. This view of ours is further supported by the fact that no evidence has been brought on the record to show that either Manzoor Ahmad P. W. was declared hostile or had given the account of the case in a manner which could be considered detrimental to the case of the prosecution. In view of the matter it was highly essential that the controversial statement of Manzoor Ahmad P. W. should have been brought on the file in order to enable the Court to judge for itself the intrinsic value of that statement and to find whether it could give any cause of grievance to the appellant's father to an extent so as to drive him to desperation in planning the murder of his own witness, The prosecution has produced no other witness to corroborate this assertion of Manzoor Ahmad complainant that appellant's father had told him that he was responsible for spoiling the above‑men tioned case. In face of the letter produced by the prosecution to substantiate the allegation of Manzoor Ahmad P. W. regarding motive of the crime, a study of the same will disclose that the appellant's father had appealed to the sense of justice of the Investigating Officer and was under the impression that his son Muhammad Ashraf appellant had been killed. It is highly incoherent letter which only states the state of mind of a father who had learnt that he had lost his second son also and feels helpless while sitting at a distance of 1000 miles or so, lamenting his loss. It has been urged by the learned counsel for the complainant that in fact this letter was a ruse to deflect the course of investigation and it was written with purpose by the appellant's father Yaqub Ali co‑accused in order to put the investi gating agency on a wrong track. The suggestion of this kind does not appeal to our minds, as we do not consider Yaqub Ali co‑accused, the father of the appellant, as a .man of an extraordinary intelligence, who was acting like shrewd criminal, as depicted in the detective novels of legendary Sherlock Holmes. On the other hand the facts as given to us by the pro secution regarding this motive, in no way show that the appellant or his father could have any grudge against Manzoor Ahmad P. W. who had once helped them in life and had come forward as a witness for the pro secution to support a case in which the appellant's brother was murdered. Moreover it is also in the evidence that the brother of the appellant was murdered in 1963 and although Ghulam Ali who was charged with that murder was undergoing the sentence yet his family lived next door to the house of the appellant. We do not find anything on the record to show that the appellant or his father ever made any attempt to take revenge from the family of actual culprit or had in any way showed their malice against the complainant in this case. On the other hand we find that Yaqub Ali, the father of the appellant had migrated to Sanghar in the province of Sind and had left his son alone to earn his living by himself. If we attach credence to the story of the complainant that the appellant and his father were revengeful persons and were set on to wreak vengeance for the murder of Zulfiqar Ali, then we would have found Yaqub Ad well settled in the village, either waiting for the return of Ghulam Ali or doing one thing or the other to come to grips with other members of Ghulam Ali's family. In view of the above analysis made by us of the prosecution evidence, on the point of motive, we are of the considered opinion that there was nothing to motivate Yaqub Ali, the father of the appellant, to plan the murder of Manzoor Ahmad P.W. through his son Muhammad Ashraf appellant, which resulted in the death of Tariq Manzoor deceased.

11. The prosecution has tried to show that the appellant committed the murder while he was bare‑footed and thus left his foot‑prints on the spot, the mention of which was made soon after the occurrence in the F.I.R. It has relied on the evidence of Dara and Nawab P. Ws., the trackers, who were said to have correctly picked the foot‑prints of the appellant in the jail during the identification parade held for this purpose. The learned counsel for the defence has vehemently urged that Manzoor Ahmad P. W. 22 was a lambardar of the village and thus would be considered an important personage in the village community. It would be natural to assume that there would be lot of rush and commotion on the news of the murder of his son and villagers as well as their women‑folk would come in a large number to the place of occurrence to see what had happened. In view of the large number of these visitors it would be preposterous to say that the foot‑prints of the culprit still remained intact and untrammelled near the place of occurrence and were available to the police for the preparation of moulds. This argument seems quite impressive and full of force and thus it would be necessary to examine this aspect of the case with care. We find that there was no mention in the F. I. R. that the foot‑prints of the culprit were duly covered at the spot although Manzoor Ahmad P. W. has contended that he immediately after the incident covered those foot‑prints. The claim of the complainant that he immediately covered the foot‑prints does not look natural as a person who is awakened from sleep on the sound of a gun‑shot coupled with the shrieks of his son, in a dark night, would be dazed and confused and would not be so clear headed so as to straight away look for the foot‑prints on the ground. In the present case, it is also in the evidence of the complainant that as soon as he woke up he saw a young man only wearing a loin cloth holding a pistol in his hand near the cot of the deceased. In this situation normally the first reaction of the witness would be to go for the culprit and to overpower him. In case he found it advisable not to risk his life, he would muster help and then go after him to capture him. It is in the evidence that the complainant adopted the second course and immediately left for the search of the murderer as stated by him in the F. I. R. But this very witness has improvised the story of covering the foot‑prints as given by him earlier in the F.I.R. and has stated before the trial Court that lie first covered the foot‑prints as well as the crime empty and then left in the pursuit of the culprit. We find from the record that this information of covering the foot‑prints immediately after the occurrence was not given before the committing Magistrate but it was only for the first time on 18th May 1973, nearly two years after the occurrence that Manzoor Ahmad P. W. 22 stated before the trial Court that he covered the foot‑prints as well as the crime empty. The statement of this kind for the first time before the trial Court does not ring true and make one feel that it was a positive attempt to create track evidence against the appellant. As it will be against the normal conduct of a father to behave in such a cool and dispassionate manner and at the same time to allow the miscreant to gain time in making good his escape and instead to make starting arrangement for the covering of his foot‑prints, as well as of the crime empty. This act of covering the foot‑prints looks further strange as how could a layman know that they were the foot‑prints of the culprit which he set apart and covered, particularly in the face of the evidence that trackers bad not arrived till the time he made the F. I. R. The very claim of the complainant that he also covered the crime empty, straightaway makes his entire story doubtful. There could have been some logic is covering the tracks, as ordinarily the tracks are usually covered for preservation but to apply the same process with regard to the crime empty simply seems ridiculous. It is a matter of common experience that the crime empties are always picked up from the spot and are never covered like foot‑prints. It seems that it was only to show that the complainant was a man of extra ordinary vigilant nature and thus he claimed the credit of performing this useless and unusual task. We further find that the trekkers who picked up the foot tracks at the identification parade made mention of the gait and other points of distinction only for the first time before the trial Court and failed to give this information either before the police or before the committing Magistrate. It further does not stand to reason that Nawab and Dara trackers who had allegedly seen the foot‑prints for the first time on the 1st August 1970, could identify those twelve days later in the jail i.e., on 12th August 1970. It has been held by the higher Courts that foot‑prints of the accused who were arrested after a considerable time, were not likely to be remembered by the trackers. It even otherwise looks highly improbable that a son of zamindar will go bare‑footed to the place of occurrence on a summer night when there was every chance of his being bitten by snakes etc. at those unearthly hours. It further does not stand to reason that a person who had gone to execute his evil designs with full planning alongwith the blessing of his elderly father, would go without taking any precaution to conceal his identity and instead leave bare foot‑prints to enable his so‑called enemies to trace his identity. In the eye of law, even otherwise, the foot‑track evidence has always been considered a weak type of evidence and in the instant case the one produced by the prosecution suffers from infirmities and improbabilities and thus could hardly be considered of a kind which would inspire confidence. Reliance is placed on‑- (i) Ranga Singh & another v. Emperor 96 I C 1926, (Lahore) 498. (ii) Ganesh Gogoi & another v. State A I R 1955 Assam 51. (iii) Balija Pullayya v. Crown A I R 1941 Madras 88. (iv) Saleh v. Emperor 421 C 129 (Lahore) 1917. (v) Gurdit Singh v. Emperor 4 I C 941 1909. In view of our above discussion and the authorities relied upon, we hold foot‑track evidence as unworthy of reliance.

12. In view of our above findings the only piece of evidence with which the prosecution is left and which needs analysis is the evidence of recovery of pistol P. 4, said to have been recovered at the instance of the appellant and that of crime empty P. 2 from the place of occurrence. It is also the case of the prosecution that Fire‑arms Expert had found this crime empty duly fired from pistol P.

4. It is a settled law that in absence of any other corroborative evidence this evidence even if found convincing would not be sufficient by itself to warrant the conviction of the accused person on a~8 charge of murder. In the instant case, the critical analysis of this evidence will show that it suffers from flaws of material kind and thus a rational mind will readily reject It and will hardly consider it worthy of credence to connect the appellant with the commission of this crime. It has been stated that the appellant approached Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 and made clean breast of guilt and apprised them with all the details of the occurrence. In view of the above, questions which naturally strike to the mind are, that if that was so then why did he not disclose to them the place where he had concealed the pistol P. 4 or why he kept back this information which would have completed the entire story of his crime. If the suggestion is that he only wanted to make peace‑meal confession then it would be asking a reasonable mind to believe an unreasonable thing. A further probe into the account will show that although the appellant, according to the prosecution version, appeared before Dholar Khan P. W. 19 and Haji Jagdev P. W. 20 on 8th August 1970 but he got the pistol P. 4 recovered on the 14th of August 1970. This indicates that for full six days he kept only this information with himself although he had otherwise confessed his crime with full details before these witnesses. This conduct of the appellant, as stated by the prosecution, appears against the ordinary norms of human conduct and creates doubt in our minds about the veracity of the version as given by the prosecution regarding this mode of recovery. It is also in the evidence that the appellant m this case remained at large from 1st August to 8th August 1970 and there was nothing to prevent him to destroy this otherwise incriminating article or to dump it at a place where it would not be traced back to him. It does not seem convincing that he should keep this pistol P. 4 bidden inside the toori while he had easy access to this place for so many days, completely unhindred. Such‑like recoveries, in the circumstances, as detailed above, cannot be given any weight and we will declare them as of no consequence. Keeping in view the facts of this case, we are clear in our minds that Manzoor Ahmad P. W. 22, found his son shot on a dark night and was uncertain about the identity of the assailant. He thought it proper to place the matter before the police and expressed his suspicion about Yaqub Ali (acquitted‑accused) and one Sadiq whom he considered possible suspects due to his fantasy or possibly of his guilty mind. Manzoor Ahmad P. W. being a wordly‑wise person thought it proper, either due to his ingenuity or at the advice of the police, to mention of the track evidence and of one crime empty, in order to make use of these links to connect the possible culprit with the commission of this crime. The Investigating Agency has tried to give the look of genuineness to its proceedings and has fit in all these links bit by bit and by this material has built an impressive edifice. But this edifice crumbled when put to the test of cross‑examination led by the defence and Its force fizzled out against the touch‑stone of credibility. It may be mentioned here that the learned counsel for the State has referred us to various authorities and works of Jurists, out of which he has placed reliance on the following:‑ (i) "The Law of Identification and Discovery" by Sh. Abdul Halim, page 77. (ii) For necessary Action‑"Speeches and Judgments" by Sir Douglas Young‑containing Criminal Appeal No. 262 and Murder Reference No. 52 of 1936; Mangal Singh v. Emperor and Satoh Muhammad v, Emperor (Cr. A No. 562 of 1937 and Murder Reference No. 108 of 1937). (iii) Mylaswami Goundan & another v. Crown A I R 1937 Madras 951. (iv) Kalua v. State A I R 1958 S C 180. (v) Mehr Ali v. State 1968 S C M R

161. We have gone through all the references carefully and find that evidence of recovery‑as well as of foot‑prints has always been considered circumstantial evidence and due weight has been allocated to it. In many a cases conviction has been maintained where such evidence has been believed coupled with other corroborative evidence leading to irresistible conclusion that it connected the accused with the crime with which he was charged. In the instant case we have arrived at the conclusion that the evidence of recovery‑foot track evidence as well as that of motive does not stand proved against the appellant. Thus the authorities cited above are of no avail to the case of the prosecution.

13. The upshot of the above discussion is that the case against the appellant is not free from doubt and his conviction and sentences by the learned trial Court cannot be maintained. Consequently, we accept the appeal, set aside the conviction and sentences of the appellant and acquit him. He shall be released from jail forthwith if he is not wanted fn some other case.

14. The sentence of death is not confirmed, and thus the Revision Petition (No. 6 of 1974) also stands dismissed.