1986 PLP 1111 (MLD)

(i) Under section 302/34, P.P.C. all the four accused, namely, Atta, Anwar, Gulzar and Faqiria, have been sentenced to imprisonment for life each, plus a fine of Rs. 5,000 each, in default whereof suffer R.I. for two years; (ii) Under section 307/34, P.P.C. they have been sentenced to ten years, R.I. each plus a fine of Rs. 2,000 each, or in default to suffer R.I. for one year R.I.; and (iii) Under section

452. P.P.C., each one of them has been ordered to suffer two years, R.I. The sentences have been ordered to run concurrently. Half of the fine on both the counts, on realization, has been ordered to be paid to the heirs of the deceased. Akbar and Arshad were acquitted vide the same judgment. The convicts have filed appeal.

6. At the trial prosecution in all examined fourteen witnesses. The gist of the medical evidence has been noted above.

7. The ocular account was deposed to at the trial by Muhammad Ali complainant (P.W.9), Walayat (P.W.11) and Baqir (P.W.12). Muhammad Ali (P.W.9) during examination‑in‑chief re‑narrated the facts given by him in the F.I.R. However he clarified that he was sitting in the Haveli of Nazir deceased wherefrom the accused had dragged them. During cross‑examination while stating that Siddique had neither a daughter nor a real sister, denied that he had stated in the F.I.R. (Exh. P.K.) at portion A to A, that the earlier quarrel was because of a dispute on refusal of proposed marriage by Siddique. He firmly took the stand that he had not mentioned such things before the police officer, who had recorded the F.I.R. Although he had taken a stand in cross‑examination that when he reached Hafizabad, it was not completely dark and visibility was still there, but at page 6 of his statement in the cross‑examination, he had clearly stated that he along with Walayat had reached the Haveli of Nazir deceased after thirty minutes or an hour of the sunset. In answer to another question, he had stated that the accused had come to the Haveli after an hour or half an hour on their reaching the Haveli. He expressed lack of knowledge about the breakage of gun of Anwar accused. Walayat (P.W.11) .by and large corroborated the statement made by Muhammad Ali in examination‑in‑chief. However, he added that when Nazir had come to the spot, he was armed with a Dang and had caused an injury to Anwar accused before he was attacked and caused injuries. While giving account of the injuries suffered by him, as a result of the fire shots, he named Atta Muhammad, Anwar and Arshad of having caused him injuries on the legs, by firing one shot each. He admitted in cross-examination that he had visited District Jail, Gujranwala, when Akbar accused was lodged in the Jail, but denied that he had gone there to see him. According to him, he had gone there to see one Taili. He denied that he had talked there that the accused were innocent and were falsely involved in this case. In answer to another question he stated that his talk had been recorded but that had been done under force. He also stated that Sarang Khan of Katrai had forcibly taken him to the jail. The alleged tape‑recorded talk was played during trial before the witness. The witness after having, listened to the tape denied that it was his talk. He stated that the talk he had with the accused was not the one which had been played before him. He stated the only talk with. Akbar was that he (Akbar) wanted to apologise, but he had refused to do so. He denied the suggestion that some unknown persons during the night had entered the Haveli for lifting cattle and they had caused them injuries and that they had failed to identify them. He admitted that they had enmity with the accused prior to the occurrence. Baqir (P.W. 12) by and large corroborated the statements made by other two witnesses. All the three witnesses at the trial stated about Bahawal and Siddique having arrived at the scene during occurrence. It may be of interest to note here that while Muhammad Ali is first cousin of the deceased, P.W. Walayat is son of the deceased and Baqir P.W. is also related to the deceased. Evidence of recovery of weapons of offence was deposed to, by Manzoor (P.W.7), who is brother of the wife of Inayat, who is real brother of Muhammad Ali complainant. Aziz, the other witness from the public was not examined at the trial. However, the statement of Manzur has been corroborated by Sultan Ali, S.I. and Fazal Dad, A.S.I., pertaining to the recoveries effected at the instance of the accused during their custody.

8. All the appellants during their statements under section 342, Cr.P.C. denied the prosecution case and set up plea of false implication. The recoveries of weapons of offence were also denied by them. Muhammad Anwar appellant while explaining injuries on his person, stated that it was the result of police torture. None of the appellants produced defence. However, Sarang Khan son of Hayat Khan was examined as D.W.1 at the request of acquitted accused Akbar. Sarang Khan stated that Walayat was his Pir Bhai, that he had gone for condolence to him on the death of his father and on the Chehlum ceremony of Nazir, Walayat had disclosed that some innocent persons have been involved in the case. He stated that he tried for reconciliation between parties, but did not succeed. He further stated that Walayat had accompanied him to the jail, where, while talking to Akbar accused, he had admitted that some innocent persons were involved in this case. According to him, he had tape‑recorded the talk of Walayat. In cross‑examination, he admitted that the tape-recorded talk was based on the conversation between the different persons. He claimed that the tape contained the talk of Walayat. In cross‑examination, he stated that the accused were not known to him personally till Walayat had told him about them. He admitted. in cross‑examination that he had taken the tape recorder in the, jail premises without the permission of the jail authorities and had taped the talk without getting the permission of jail authorities.

9. Learned counsel for the appellants contended that the eye‑witnesses in this case are related and interested, that the occurrence had taken place during dark hours and so the possibility of misidentification of the assailants cannot be ruled out, that the eye‑witnesses have been disbelieved qua two accused of the appellants, i.e. Akbar and Arshad. In this connection learned counsel pointed out particularly that injury No.1 on the face of deceased was specifically assigned to Akbar Learned counsel further argued that the opinion expressed by the doctor who had performed the autopsy, with regard to the nature of weapon used for causing injuries to the deceased, is contradictory to the eye‑witness account in that learned counsel submitted that although on an application (Exh. P.S.) submitted by the police, later, the doctor had opined about injury No.1 to be the result of fire‑of vide note (Exh. P.S./1), but earlier vide letter (Exh. P.N.) written on 15‑1‑1976,on an application (Exh. P.O.) he had not clearly stated the injury to be that of fire‑arm. Learned counsel argued that since the evidence of recovery of weapons of offence has also been deposed to be by interested witnesses, there is nothing on record to corroborate the interested eye‑witness account. Learned counsel contended that the trial Court had erroneously discarded the taped statement of Walayat P.W. Lastly learned counsel pointed out that the complainants have compromised with the appellants.

10. Learned counsel for the State on other hand defended the judgment .of the trial Court. Contended that the presence of the two injured eye‑witnesses cannot be doubted by any stretch of imagination, that excepting the case earlier registered at the instance of Akbar "acquitted" and Anwar appellant, there was no previous animosity between the parties for which the complainants would have falsely involved the appellants. Learned counsel argued that the admission of the appellants about the registration of the earlier case proves the motive. Learned counsel submitted that the F.I.R was promptly lodged and as such the question of false implication by deliberations does not arise.

11. Learned counsel for the complainant submitted that he has instructions to state that the complainants have compromised with the appellants. He has produced affidavits of all the three eye‑witnesses. Out of them, Walayat is son of the deceased and had suffered injuries during the occurrence, so had Muhammad Ali. Learned counsel stated that he has no instructions to argue for the maintenance of the conviction of the appellants.. All the three are present in Court. They have been identified by Sardar Muhammad Akram, Advocate, their counsel. They have re‑affirmed their depositions in the affidavits.

12. I have gone through the record with the assistance of the learned counsel for the appellants and have considered the contentions raised by the learned counsel for the parties. Although the factum of compromise having been effected between the parties stands admitted and seem genuine too from the affirmation of the same by the son of the deceased and the other two eye‑witnesses but the law does not warrant acquittal of the convicts merely on that account in a non‑compoundable offence. The appeal of the appellants will, therefore, have to be decided on merits. At the very outset I would like to dispose of the contention o the learned counsel for the appellants with regard to the alleged taped statement of Walayat P.W. It was not played in this court. In fact, I did‑ not ask for that for the reason that I did not consider that to be an admissible evidence, as it was not proved in accordance with law, due to following reasons. The emphatic denial of Walayat P.W. after hearing the tape, before the trial Court that the tape played before' him did not contain his talk, shifted the burden of proof of the same squarely on the defence. The talk had not been taped by any Government official on duty, it had not been done by permission of the authorities. It was admittedly done stealthily. The only witness examined in this regard is Sarang, a person whose statement does not inspire confidence. According to him, the accused were not known to him earlier. If that was true, why did he indulge in this game of hide and seek? He was Pir Bhai of Muhammad Ali P.W. but had no intimate relations with Walayat P.W. He was not able to state whether he identified the voices of others, who had dialogued with Walayat. He never made‑ any claim that he was acquainted with the voice to such an extent that he could identify even his taped voice. None else was examined to corroborate his statement in this regard. In these circumstances, the alleged tape‑recorded statement of 4Valayat has to be excluded from consideration.

13. The occurrence had taken place on 6th of January. The sunset time in those days was about 5‑15 p.m. The occurrence, according to the complainant, had taken place at 7‑30 p.m., but if the statement of the complainant is to be taken into account, the time consumption that he gave, would take the occurrence far ahead of 7‑30 p.m. That being the position, it is to be granted that the occurrence had taken place. in the dark hours of the night. Although eye‑witnesses have stated C that there was moonlight, but moon setting time also preceded the time of occurrence given in the F.I.R. The question that crops up is whether P.Ws. could have identified the assailants even in the darkness? No doubt, they belonged to they same village and knew each other prior to the occurrence. But that alone is not enough to grant that the witnesses must have identified the assailants correctly. The efforts made by the witnesses to make the identification of the accused plausible by claiming that the occurrence had taken place during visibility hours of the day, speaks lock of bona fides on their part. The deceased, according to them, was murdered in the Shaftal field, where he had gone on hearing shrieks of Muhammad Ali and Waiayat, who, according to the prosecution, were taken by the appellants and the acquitted accused forcibly from the Haveli of Nazir. If the story of the two having been taken to Shaftal field is to be accepted, then it has to be granted that they were the objects of the assailants. Although they had suffered injuries during the occurrence, but they tenor of the F.I.R. and the statements made by the eye‑witnesses shows that whole intention of the assailants was directed towards Nazi deceased. The other strainge factor is, that the dead body was found in the Haveli by the S.I. on his arrival in the village. Nobody has explained as to how the dead body of Nazir was found in the Haveli? All thes factors cast shadows of doubt on the facts deposed to by the eye witnesses. It seems that after the deceased had died and the two witnesses had suffered injuries there were some deliberations and consultations. Yet the other thing which puts me on guard about the reliability of the eye‑witnesses is that although F.I.R. is claimed to have been registered promptly and at the police station (in fact learned counsel for the State argued this point in support of his contentions) but there are circumstances to consider that probably F.I.R. was no recorded at the noted time. The fact which has weighed with me in this regard is medical examination of Muhammad Ali complainant on the following day of occurrence at 1‑30 p.m. The S.I. at the trial stated that he had prepared the injury statement of Muhammad Ali complainant and Walayat P.W. at the spot on the same night, after having despatched the dead body of Nazi deceased for post‑mortem examination and thereafter sent them for medical examination, but in the Karwai Police recorded at the end o the F.I.R., it is recorded that the injury statement of Muhammad Ali was prepared by the S.I. at the police station and arrangements were made by him for getting him medically examined. If the later position had been correct, then Muhammad Ali would have been medically examine much earlier to 1‑30 p.m. of the next date. The effort made by Muhammad Ali at the trial during cross -examination to prove his absence from the spot till after he was medicall examined, lends support to the view that he wanted to avoid a question about registration of F.I.R. at the spot. It seems that the correct position about the preparation of injury statement of Muhamma Ali by S.I. is one stated by him at the trial on oath. That situation lends support to the argument that the F.I.R. was not recorded at the police station but was recorded after deliberations and consultations at the spot. The cumulative effect of the above discussion is that n unequivocal reliance can be placed on the statements of the eye‑witnesses without strong corroboration. The medical evidence on record does not lend sound corroboration to the ocular account. The doctor, who had performed the post‑mortem examination, had recorded in the post‑mortem report that the injuries on the deceased were by blunt weapon. Although in answer to a quer on application (Exh. P.S.), dated 5‑4‑1976, he had opined on 16‑4‑1976, that injury No. 1 on the deceased was due to fire‑arm. but he did not say any such thing with regard to the injuries caused by the accused with fire‑arms other than the one, who had caused injury No.

1. It may be noted here, that injury No.1, according to the F.I.R. was caused by Akbar co‑accused. The observation of the learned trial Judge and the argument of the learned counsel for The State that the doctor was not fair and honest while giving opinion about the nature of the weapon used, cannot advance the case of the prosecution. The other evidence on record which could lend corroboration t the depositions of the eye‑witnesses to reinforce their evidence, is the evidence of recovery of weapons of offence. In this regard it may b noted that no empty was recovered from the spot. The broken. piece of butt of the gun recovered from the spot was not proved to be part o butt of any of the guns recovered during investigation. No question was put to any of the,accused holding guns, that piece of the butt, o the gun recovered from the spot, was pert of the gun held by him at the time of occurrence. The next point which requires consideration is the contention of the learned counsel for the appellants that evidence of recovery of weapons of offence has been deposed to by interested witnesses and so no reliance can be placed on their testimonies. Manzur, the only attesting witness from the, public produced at the trial is related to the deceased. Aziz, the other attesting witness, who was given up, was also related to the deceased. Although there is force in the argument of the learned counsel for the State that mere relationship of the witnesses with the deceased is no ground to discard, them, but the fact remains that statements of such witnesses have to be considered cautiously. Concessions cannot be granted to the prosecution witnesses for believing them in placing reliance on their testimonies. Doubts whenever and wherever will arise the benefit shall go to the accused. The statements of Manzur and the S. I., insofar as they pertain to the recovery of weapons of offence, do not inspire confidence. As such, this part of the evidence has to be excluded.

14. The net result of the whole discussion and appraisal of the evidence is that the eye‑witness account, which is interested one and does not find any corroboration from any other piece of evidence, cannot be acted upon safely for maintaining the convictions of the appellants. Doubts have arisen in my mind about the reliability and authenticity of the statements made by the eye‑witnesses. This appeal is, therefore, accepted and the appellants are acquitted by way o grant of benefit of doubt. They are already on bail. Their sureties Appeal accepted.