P L D 1987 Lahore 515 (PLP)

Ghulam Shabbir (23) his brother Amanat Ali (27) were tried for the murder of Gulazar. On 20‑12‑1983, Additional Sessions Judge, convicted Ghulam Shabbir under section 302 PPC and sentenced him to imprisonment for life with a fine of Rs.5,000/‑ in default to undergo six months' R.I. further. Fine if realised, was ordered to be paid as compensation to the heirs of the deceased. Amanat Ali was acquitted. The convict has come up in appeal.

2. Ghazanfar Ali a brother of the appellant was murdered in 1977. Gulzar deceased and Ashraf Gujjar were tried for the murder. Ashraf was acquitted but Gulzar was sentenced to three years' R.I. After serving the sentence, seven months before the occurrence, he returned to the village. This was motive ,for the crime in this case. According to the prosecution at 7‑30 p.m. on 21‑6‑1982, Muhammad Shafi (informant) and his son Gulzar went to bazar for making some purchases. When they reached near the hotel of Zahoor, Amanat Ali and Ghulam Shabbir armed with knives appeared from a lane, saying that they would avenge the murder of their brother. Amanat Ali inflicted a knife blow to Gulzar in the chest. Ghulam Shabbir also inflicted an injury in the chest. Gulzar fell. Thereafter, Ghulam Shabbir inflicted an injury in the abdomen. Gulzar's intestines protruded. Amanat Ali inflicted an injury on his right arm which went through and through. Ghulam Shabbir gave another blow on the right shoulder and on his forehead. Besides the informant the occurrence was witnessed by PW 4 Muhammad Akram and Qasim Ali who was given up as won over. The witnesses tried to apprehend them but the accused fled away with their knives towards the railway lines. The injured' was carried, to the Civil Hospital, Sargodha, by P.W. 7 Muhammad Shaft. After obtaining the medico‑legal report Ex.P.B., he went to Police Station City Sargodha and made report Ex.P.K. to PW 8 Abdul Majeed, S.I/S.H.O. at 8‑10 p.m. the same evening. After registering the case, the S.I. went to the hospital. Through rukka Ex.P.C., he made a query from the doctor whether the injured was fit to make a statement but the doctor replied in negative, thereafter, he went to the place of occurrence, collected blood‑stained earth from there.

3. PW 2 Capt. Dr. Nasir Khan, M.O., DHQ Hospital Sargodha, examined Gulzar Ahmad on 21‑6‑1982 at 8 p.m. and found the following injuries on him:‑ (1) An incised wound 2 cm x 3/4 cm x bone deep on the right side of forehead. One cm above right eye brow. (2) A stab wound 2 cm x 1 cm into cavity deep on front of chest right side just above xiphisternum. (3) Incised wound 1 cm x cm x skin deep on left side of front of chest. 10 cm lateral from injury No.2. (4) A stab wound 6 cm x 2 cm x cavity deep left side of front of abdomen 8 cm away and lateral from umblicus with intestine coming out and two cuts profusely bleeding present on the intestine causing perforation of intestine. (5) An incised wound through and through 10 cm x 4 cm which is wound of entry and wound of exit 4 cm x 2 cm on back of an outer side of right forearm 2 em below elbow joint (and wound of entry was present on medial side of right forearm 4 cm below elbow joint). (6) Incised wound 6 cm x 2 cm x muscle deep on middle of back of right upper arm.

4. Through rukka Exh. P.D. the S.I. received information that Gulzar had died. He returned to the hospital, prepared the necessary documents and sent the dead body for its post‑mortem examination. On the following day, PW 3 Dr. Muhammad Iltaf Hussain, M.O., DHQ, Hospital, Sargodha, held the autopsy on the dead body of Gulzar and found the same injuries as observed by Dr. Capt. Nasir Khan except the additional injuries Nos.7, 8, & 9 i.e. a stab wound 3 cm x 2 cm on the front of left upper abdomen in epigestric region with the protrusion of omentum, an incised wound 2 cm x 1 cm x skin deep on the outer side of right lower chest and an incised wound 3 cm x cm x skin deep on the upper thorac vertebrae. In his opinion, death occurred due to shock and haemorrhage caused by injuries Nos. 2, 4 and 7.

4. Same day, the S.I. arrested Ghulam Shabbir who led to the recovery of Chhuri P.1 from within a bush near railway lines close to the place of occurrence, it was made into a sealed parcel through memo Ex.P.H. Besides the investigating officer, the memo was attested by PW 4 Muhammad Akram and Qasim Ali who was given up as won over. On the following day, Amanat Ali was arrested and after completing the investigation, the accused were tried in due course.

5. Both accused denied guilt and ascribed the case to enmity. Amanat took up the plea of alibi and explaining the case against him made the following statement:‑ "I am innocent. I was present at the hotel of one Ranjha at a considerable distance from the spot at the time of occurrence. I pleaded alibi before the police and produced defence evidence during investigation but the local police sided with the complainant party. Later on Inspector CIA and then DSP Shahpur Sadar reinvestigated the case on the application of my mother who is a widow. I was declared innocent by both said officers. Moreover, apart from other defence evidence recorded by the said two officers, Mr. Nawab Khan Member Majlis Shura took an oath in the mosque of P.S City Sargodha in the presence of DSP Muhammad Asghar Cheema about my innocence, after he had made thorough enquiry regarding my innocence in this case. But in spite of that the local police withheld the supplementary challan prepared in April, 1983 in which I was declared innocent and shown in column No.2. The challan was at last submitted in this Court on 6‑12‑1983 when my mother made repeated representations to the higher police officers. " The accused produced DW 1 Tahir Islam in defence who had tape‑recorded the conversation of PW 4 Muhammad Akram the eye‑witness to the effect that he had not seen the occurrence.

5. Relying on the solitary statement of PW 7 Muhammad Shafi deceased's father, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the appellant.

6. Criticizing the finding, learned counsel for the appellant contended that out of the four eye‑witnesses, prosecution produced two who are closely related to the deceased. PW 7 Muhammad Shaft is father of the deceased and father‑in‑law of PW 4 Muhammad Akram. Admittedly, they are also inimical because of a previous murder feud between the parties arising out of the murder of Ghazanfar Ali a brother of the appellant. According to the prosecution, the earlier murder was the motive for the crime in this case, nevertheless, it is also evidence of enmity. It was further argued that PW 4 Muhammad Akram was disbelieved by the trial Court. His presence at the place of occurrence was doubted for good reasons. Thus, the trial Court relied on the solitary statement of PW Muhammad Shaft who was admittedly an interested witness and there being no reliable corroboration of his testimony, it was not safe to base conviction on his statement alone. I have considered the matter. For sound reasons, trial Court did not rely on the evidence of PW 4 Muhammad Akram, this witness lived at a distance of half a mile away from the place of occurrence and after finishing his work at 7 p.m., he was on his way home, as he crossed the railway line near the bus‑stand and walked on the road on which the occurrence took place, the attack was made on Gulzar. It is noteworthy that both his house and the workshop where he worked were on the other side of the railway line. He, therefore, need not to have crossed the railway line to go home. It is not the prosecution case that he went on to the other side of the railway line because he was attracted by the alarm. In fact, the case is that after having come on to the other side of the railway line, the witness walked down Mahboob Road and it was, thereafter, that the occurrence took place. It appears that he has stage‑managed his presence there to become a witness being a close relation of the deceased.

7. PW 7 Muhammad Shan father of the deceased was a resident of the locality called Mohajir Camp. The father and son were going for shopping and when they reached near Zahoor Hotel, the appellant and the acquitted accused emerged out of a lane armed with Chhuris and attacked the deceased to avenge the murder of their brother. During the attack, the witness did not try to save his son nor any one from the locality came forward for help. It is noteworthy that the number of injuries which Muhammad Shan gave out in F.I.R. were six in all but according to the doctor who held the autopsy, the deceased suffered nine injuries. It may be added here that in the FIR the witness has also given location of the six injuries. For him to have completely missed the remaining three injures creates a doubt about his presence at the place of occurrence. On the other hand, he admitted that there were several grocery shops between his house and the place of occurrence. His reason for going further was that sugar and fire wood was not available in those shops. He added that he had to purchase fire wood from a stall of one Haji Mir Hassan situate on Mahboob Road. There is nothing to corroborate his assertion. Under cross‑examination, he admitted that the said stall was at a distance of ten to fifteen feet from the place of occurrence but Haji Mir Hassan is not a witness in this case nor his stall is shown in the site plan Ex.P.A. The witness also claimed that there were several other shops around the place of occurrence but he did not notice any one of the shopkeepers there because his attention was focussed on his son. It is strange that he knew the names of all the shopkeepers around but he could only see his close relation Akram and Qasim and since presence of Akram has been found doubtful, this to my mind, projected the informant as an interested witness who would introduce the names of his own relations for evidence. This type of statement of an interested witness who is exaggerating would require corroboration from a reliable source which is not forthcoming in this case. Learned counsel for the complainant argued that, though, PW Muhammad Shan was an interested witness yet his evidence cannot be discarded because he lived near the place of occurrence and was a natural witness who promptly made the F.I.R. I have considered this aspect of the case. It is not in evidence that his house was in sight from the place of occurrence, except for statement. It is also not indicated by the site plan. Assuming that his house was near the place of occurrence and the occurrence took place at "Maghrib" prayer time, even then, he may have reached on the alarm immediately after the attack. True, he was unarmed but it was the question of his son's life and death. Had he been there, it would have been natural for him to have intervened and tried to save his son but he did not. Keeping this in consideration, I am of the view that he is not one of those interested eye‑witnesses who could be relied upon without independent corroboration.

8. Recovery of the knife P.1 from a bush near the railway line close to the place of occurrence on the following day of the occurrence is supported by two eye‑witnesses i.e. PW 4 Muhammad Akram and Qasim Ali who was given up as won over. Moreover, it would be highly improbable that the appellant came back near the place of occurrence to conceal the Chhuri in a bush there. It is not the prosecution case that while running away, he threw it in the bush. Had it been so, then the eye‑witnesses would have seen him doing so. The fact that the place of recovery of the knife and the place of occurrence are so close that in all probability, the assailant threw away the weapon in a bush while running away and did not come back to conceal it there. It appears that in order to pin‑point the recovery at the instance of the accused, the eye‑witnesses made no mention about the throwing away the knife by the assailant. This circumstance would also reflect both on the ocular testimony and the evidence of the recovery. In its judgment, trial Court did not advert to the recovery evidence at all, perhaps, because it did not rely on the evidence of PW 4 Muhammad Akram who was the only recovery witness produced at the trial besides the investigating officer.

9. There is yet another circumstance in this case which requires consideration i.e. PW 2 Capt. Dr. Nasir Khan, examined Gulzar (deceased) when he was alive and found six injuries on him and handed over a copy of the medico‑legal report Ex. P.B. to the informant who in turn described the same six injuries in the FIR but PW 3 Dr. Altaf Hussain who held the autopsy found nine injuries on the dead body of Gulzar. It appears that at the trial, realising this discrepancy and in order to cover it up, PW Muhammad Shan after describing four injuries of his son mule a general statement that both accused gave more injuries with their Chhuris to the deceased on different parts of his body. In all probability, the doctor who first examined the deceased, in a hurry missed the three injuries which the other doctor found and in order to bring in line with the medical evidence, the informant made the aforementioned improvements. This too brings no credit to the informant.

10. Learned counsel for the complainant contended that the suggestions put to the eye‑witnesses under cross‑examination indicated that the appellant admitted the occurrence by putting up a plea of grave and sudden provocation. According to him, this suggestion would be a corroborative evidence and should be read together with the evidence of PW Muhammad Shan in vesting his veracity. I have considered the matter. No doubt, the object of corroborative evidence is to test the veracity of ocular evidence provided the corroborative evidence comes from an unimpeachable source. In this case, the suggestion put by the counsel is not in line with the rest of his cross‑examination. It may also be mentioned here that the appellant A in his statement did not take up such a plea and the counsel may have put these questions on his own to raise alternate plea for mitigation. There is nothing in evidence to show that these questions were put on the clear instructions of his client. It is, therefore, not possible to draw any inference against the accused from a mere line of cross‑examination. It is also not one of those situations in which a presumption can be drawn that the counsel put the question on the instructions of his client. Reliance is placed on Riaz Hussain versus The State P L D 1984 FSC 1, in which case a similar situation arose. For the foregoing analysis of the evidence, I am of the view[ that in the circumstances of this case, the solitary statement of the B interested witness cannot be relied upon. Consequently, accepting) the appeal, I give the benefit of doubt to the appellant and acquit him. He shall be released forthwith if not required in any other case. K.B.A./G‑68/L Appeal accepted.