P L D 1975 Lahore 726 (PLP)

M. S. H. QURESHI, J.-Appellant Gulsher was tried along with co accused Karim Bakhsh, Rasul Bakhsh and Bakhtiar under section 302/34, P. P. C. for the murder of Bariwag deceased, and under section 307/34, P. P. C. for murderous assault on Karam P. W. The co-accused were acquitted on both the charges. The appellant, too, was acquitted under section 307, P. P. C. but was convicted under section 302, P. P. C. and was sentenced to death as well as to pay a fine of Rs. 2,000, or in default to undergo R. I. for two years in the event of the death sentence not being confirmed by the High Court. Gulsher has appealed. On the reference side, we have the death sentence passed against him for confirmation.

2. The occurrence took place at Degarwela on 24th January 1970, in village Thul Hairo, Tehsil Jampur, District Dera Glaazi Khan. At that time Bariwag deceased, Karam P. W. and his mother Mst. Sohagin were cutting grass in Band Tilkan, when appellant Gulsher and co-accused Karim Bakhsh armed with guns and co-accused Rasul Bakhsh and Bakhtiar armed with hatchets came and, saying that they had come to avenge the death of Gorish, brother of the appellant who had been killed on that day by Salim, father of Karam P. W., in the area of Dajan, attacked the complainant party. Karim Bakhsh first fired at Karam which missed. The appellant then fired at Bariwag deceased who fell down on the spot. Karim Bakhsh fired a second time at Karam P. W. but again missed. The assailants thou ran away. Faqir Bakhsh, a brother of the deceased who had come by then, saw the assailants running away. After the culprits had left, Karam P. W. returned to the spot and found the deceased already dead with a bullet having pierced his left eye and having passed through the back of the head. Karam P. W. brought Ghulam Bakhsh Lambardar and Budha Chaukidar, P. Ws., to the spot and proceeded to Harrand Police Station, which was twenty miles away. He met Abdur Rashid, the S. H. O., at 10-30 a. m. (25th January 1970) in the area of village Harrand and made his statement which was recorded by the police officer and on the basis of which a formal F. I R. was recorded at the P. S. at 11 a. m. that day.

3. The motive for the occurrence was that Gorish, brother of the appellant, had developed illicit intimacy with Mst. Gul Khatun, wife of Pari. The matter was compromised in the result of which Mst. Gul Khatun was sold away and Gorish left the village. Gorish had been murdered at noon-time on 24th January 1970, t. e., shortly before the occurrence, and Salim father, Pir Bakhsh uncle, and Mitha maternal cousin of Karam P. W. had been accused of that murder.

4. After recording the statement of Karam, the S. H. O. went to the spot from where, after completing the formalities, he despatched the dead body for post-mortem examination. He also recovered the blood-stained earth and an empty (Exh. P. 3) from the spot. On 27th January 1970, the appellant appeared before him and while in police custody led to his house from within which he produced rifle (Exh. P 6) with cartridge (Exh. P. 7). On the same date Rasul Bakhsh and Bakhtiar co-accused were also arrested and hachets (Exhs. P. 4 and P. 5) which they produced, were taken into possession. Karim Bakhsh co-accused was arrested on 4th February 1970. The crime empty (Exh. P. 3) was found to have been fired from the rifle (Exh. P. 6) which had been sent in sealed condition to the Forensic Science Laboratory.

5. The autopsy performed on 26th January 1970, disclosed the following injuries on the person of the deceased: (1) Lacerated wound 1/3' x 1/4" x penetrating head at the inner angle of left eye. It was oval in shape and eye-ball was ruptured. It was a wound of entry. (2) Lacerated wound 2 x 1 ", irregular in shape, at the back of head towards left side. It was a wound of exit. Left orbital, left temporal and left occipital bones were fractured. Brain and membranes of left half of brain were ruptured. The injuries, which were ante-mortem, had been caused, in the opinion of the doctor, by a projectile discharged from a fire-arm, and the death had been instantaneous.

6. At the trial, the prosecution bad relied on the ocular testimony of Karam (1'. W. 8) who is a nephew of the deceased, and Faqir (P. W. 9), a real brother of the deceased, and the circumstantial evidence relating to the recovery of the a crime empty (Exh. P. 3) and the rifle (Exh. P. 6) with which the fatal shot had been fired. Gulsher and the three co-accused had pleaded not guilty to the charges. Gulsher had admitted tile factum of death of his brother Gorish, but had stated that he had come to know of the death two or three days thereafter and did not know who bad caused that death. He bad denied the recovery of and disowned the rifle. He had alleged false involvement due to enmity. The learned trial Judge held that both the eye-witnesses Karam and Faqir were inimically disposed towards the persons accused, and that as such it would not be safe to rely on their evidence without some corroboration. That corroboration having been found by him only against Gulsher, he convicted and sentenced him for the murder while acquitting the co-accused.

7. We are inclined to agree with the learned trial Judge that the ocular evidence is most unreliable. Kai am P. W. had stated in his cross-examina tion. "It is correct that all the accused persons had their faces muffled up in such a way that only their eyes were visible. It is correct that when the accused persons got up and followed us, I simply guessed that they were the accused persons as they were our enemies. We could not identify them". The fact that the witnesses had not identified the culprits is further confirmed from his subsequent statement to the effect. "After the incident I, Faqir Bakhsh P. W. and Mst. Sohagin P. W. had a meeting in which we reached the conclusion that the accused persons were the assailants as they were our enemies. We had preserved the foot-prints of the assailants and had shown them to the S. I. when he came to the spot. It is correct that the S. I. had sent for a tracker and had tried to find out with his help as to whose foot-prints fitted in with the foot-prints preserved at the spot." In the F. I. R , no doubt, he had clearly named the assailants and had also described the various parts played by them, but the value of the F. I. R. was watered down by the concession made by him later during the trial. The other ocular witness Faqir, who is none else than the brother of the deceased, had similarly prevaricated on the question of identification. In his evidence he had first categorically stated : "I had seen the accused persons running away but I had seen their faces and had identified them". But he went on to qualify his statement by saying "It is correct that the accused persons had their faces muffled up in such away that only their eyes were visible . . . . . . From their height and stature I had guessed that the accused persons were the assailants." He went on to say: "It is correct that after the incident I, Karam Khan and Mst. Sohagin bad a meeting in which we reached the conclusion that the accused persons were the murderer of Bariwag deceased. It is also correct that we had preserved the foot-prints of the assailants which foot-prints we had showed to the S. I. who had tried to trace out the assailants with the help of a tracker. At the time of incident, it was cloudy; a dust-storm was blowing and it was also drizzling. Visibility had been reduced due to these factors". It was on account of this contradiction that his statement recorded during the commitment proceedings was transferred under section 288, Cr. P. C. That statement does not contain anything to doubt the identification by him. However, according to the F. I. R. and the evidence of Karam, Faqir had come when the assailants had been running away. It was because of this that the learned Sessions Judge was not inclined to believe that Faqir has seen the firing. He was, on the other hand, disposed to accept the witness's testimony at the trial that he was attracted to the spot on hearing the shots and had seen and identified the accused persons. Mr. M. A. Buttar, learned counsel for the appellant contended that the learned Sessions Judge was wrong in preferring the statement made during the trial after the previous statement of the witness made during the commitment proceedings had been transferred under section 288 of the Code of Criminal Procedure. An earlier statement of a witness is, no doubt, brought on record under section 288, Cr. P. C. on the assumption that the subsequent statement was not true and the Court can act on the earlier statement so brought on record if it is satisfied that the same was true. Nevertheless, there is nothing to bar the Court from acting, in its discretion, upon the subsequent evidence in preference to the earlier statement, particularly where the circumstances tend unmistakably to show that the earlier statement was not the truth, vide this Courts judgment in Muhammad Sarfraz Khan v. Crown Cr. A. No. 523 of 1950 M. R. No. 114 of 1950, decided on 5-2-1951. The fact however remains that neither of the ocular witnesses is deserving of credence on account of the various discrepancies introduced during their cross-examination. The learned Sessions Judge had rightly held that both of them "had deliberately told lies in their cross-examination with a view to damaging their assertion that they had fully identified the accused persons". We are, therefore, net inclined to attach any value to their evidence.

8. We have thus to fall back upon the circumstantial evidence relating to the recovery of the rifle at the instance of the appellant, which rifle was found to have been used in the crime. Here too, there are discrepancies on material points. Budha, one of the recovery witnesses, gave the time of recovery as 8 or 9 or 10 p. m. while according to Imam Bakhsh it was Isha time. The latter witness even stated, "The S. I. sent for a lantern from the shop of Bhagu and in the light of that, the recovery was effected". Again, according to Budba P. W., the appellant produced the rifle from the ceiling of his house but, according to the other witness, the rifle was lying under a quilt on a cot and the S. I. himself took the gun from the cot pointed out by the appellant. It is obvious that where the sole criterion for convicting an accused person is circumstantial evidence, that evidence must be reliable and must come from unimpeachable source. The aforesaid contradictions in the statements of the recovery witnesses create doubt in regard to the time and place of the recovery, which are material. Moreover, both these witnesses have admittedly been on inimical terms with the appellant. Budha has stated, "I had deposed against Gulsher in a case under section 325, P. P. C.". Imam Bakhsh likewise stated. "I have litigation with Amir Bakhsb, a relative of Gulsher accused, over hill torrent. The litigation is still pending. Gulsher accused sided with Amir Bakhsh in that case". It was argued on behalf of the State that the evidence of Imam Bakhab, which conformed to the relevant recovery memo and which was supported by the S. H. O., should be believed. We are not inclined to do so in view of the admitted enmity of Imam Bakhsh with the appellant. With the material before us, the factum of recovery cannot be said to have been established beyond every reasonable doubt.

9. The result is that the appellant is entitled to acquittal on the benefit of doubt. We accordingly accept his appeal and acquit him. He shall be released forthwith if not wanted in any other case. The sentence of death is not confirmed. K. B. A. Appeal accepted.