1987 PLP 960 (SCMR)

The doctor also gave the opinion that it was possible that all the injuries on the person of Mst. Fazal Jan had been caused by one shot. The same doctor also examined Sarwar appellant and found the following injuries on his person:‑‑ "(1) A circular punctured wound on the outer side of left arm 5‑3/4" above elbow. Outer margin of the skin had abrasion. The margins of the wound were inverted and measured 1/4" x 1/4". Probe led under the skin upto 1" medially. There was a hole on the arm of the shirt corresponding to the hole on the arm, the shirt was blood‑stained and its was an entry hole. (2) A circular lacerated wound on the inner side of left arm with everted margins 1/3" x 1/3" distance externally between the two holes was about 41". This hole was 7" above elbow. There was also a hole on the arm of shirt corresponding to hole No.2. This was exit hole. Colour of the shirt was Khaki." The doctor was not in a position to give the opinion whether the injuries were self‑suffered by Sarwar. At the trial, Sarwar took up the plea that he was not involved in the occurrence at all and had been implicated on account of enmity in the village and explained the injuries on his person in the following words: ‑-- "I was present in my house at about Namaishanvela, it was month of Ramazan. I heard the reports of fire‑shots and hue and cry as a sequel to a fight. In the meantime, I was also injured by a stray missile. The fight was between Aksar and his relatives on the one hand and their opposite faction of which I learnt later. I went to the hospital, Fatehjang where I was admitted. The other party was also present in the hospital and on learning that I was injured they involved me as well in the case. I am innocent." He denied having led to the recovery of gun (Exh. P.9). Ghulam Muhammad also denied and accounted for his implication in the following words:‑‑ "Raja Ghulam Muhammad, ex‑Zaildar, is my close relative. He is the leader of the faction opposing Haji Bostan Khan and his family. Both the parties are inimical and there has been criminal cases between Haji Bostan Khan and Ghulam Muhammad referred to above. I have been involved by Haji Bostan Khan due to my relationship with Ghulam Muhammad. The complainant party and Khan and the P. Ws. have deposed against me under his influence. He had accompanied the complainant party to the P.S. and has facilitated my involvement. I am innocent." Nazik Hussain denied his involvement in the occurrence and stated as follows:‑‑ "The prosecution witnesses are inimical towards Aslam, my maternal‑uncle, the co‑accused. I have been falsely implicated by the P. Ws. due to relationship with Aslam." The appellants also produced one witness in defence. Raja Amir Muhammad (D.W.1) was cited as the prosecution witness but had been given up by the Additional Public Prosecutor on 7‑5‑1978 alongwith two others as having been won over. The trial Court considered the ocular evidence to be sufficient and reliable. The defence version was rejected in its entirety. Aslam who was implicated in the crime on the basis of a statement of Siddique (P.W.8) who claimed to have heard him instigating the other accused for the crime a day before when it was actually committed. Except for his statement, there was no other evidence. Siddique was not believed by the trial Court and acquittal of Aslam was recorded. Similarly. Muhammad Hussain was stated to be armed with a Soti and had not used it at any stage of the commission of the crime and for that reason he was also given the benefit of doubt. The trial Court rejected the recoveries by observing that‑‑ "the recoveries have been effected quite late and the despatches were also not made in time. So, I would not rely on this aspect of the case. It is brought on record that all the witnesses are inter‑related and are tenants of Haji Bostan. But this factor alone does not convince me to discarding their testimony. It was mainly on the basis of ocular evidence of Yaqub and Abdur Razzaq that conviction was recorded of the three appellants under section 302, P.P.C. read with section 34 on two counts. As the crime was committed with a view to avenge and protect family honour, life imprisonment was awarded and a fine of rupees one thousand on each and in default they were required to undergo six months' rigorous imprisonment. The High Court while hearing the appeal of the convicts believed the ocular evidence holding that‑ Independent of evidence relating to recovery of weapons of offence the prosecution case appears to have been established beyond any reasonable doubt by the ocular evidence." Corroboration was found in the ocular evidence from the following piece of evidence‑‑ "It also transpires from the medical evidence that the deaths of the two deceased occurred as a result of fire‑arm injuries and to this extent the medical evidence furnishes support to the prosecution case. And "As a matter of fact, fire‑arm injury on a non‑vital part of the body of Sarwar appellant indicates his participation in and presence at the occurrence." Finally, observing as hereunder‑‑ "As already observed, the ocular evidence comprising of the testimonies of four eye‑witnesses fully supports the prosecution case. This also gets corroboration from the medical evidence to the extent that the two deceased died of fire‑arm injuries as is the case of the prosecution." The defence version was rejected. The recoveries and the Fire‑arm Expert's opinion were held to be of no consequence on the following reasoning: ‑ "It is noteworthy that sealed parcels containing empties were despatched to the Forensic Science Laboratory through Muhammad Rehan (P. W.5) on 13‑10‑1975 while parcels containing guns were despatched to the Forensic Science Laboratory on 30‑10‑1975 through Malik Mahboob, FC (P.W.2). The empties were allegedly recovered from the spot on 4‑10‑1975. No explanation has been offered for the late despatch of the parcels pertaining to the empties to the laboratory." On these findings, the conviction and the sentence was affirmed and the appeal of the convicts was dismissed. A revision petition filed by Muhammad Yaqub for the enhancement of the sentence and against the acquittal of two others was not pressed in view of the alleged compromise effected between the parties. Sh. Zafar Mahmud, Advocate, the learned counsel for the appellants, contended that the prosecution case had been disbelieved in material particulars in so far as the implication of Aslam and Muhammad Hussain, the acquitted accused, is concerned. The person having the motive for the occurrence was Muhammad Hussain and not the distant relation of Mst. Tashia. Besides, according to the learned counsel, it was shown beyond any measure of doubt all the prosecution witnesses were highly interested. Their relations with the complainant party were inimical and there was likelihood, and the two Courts have also held that the case could have been enlarged to include Muhammad Hussain and Aslam. In such a situation, independent corroboration was necessary and that was not forthcoming in the prosecution evidence after the rejection of the recovery evidence by the two Courts concurrently. The Fire‑arm Expert's report that the empties recovered from the spot did not match with the weapons recovered from Ghulam Muhammad and Nazik Hussain lent additional support to their defence. Sarwar appellant had given a plausible account of the occurrence and of his own injuries and in view, of the shortcomings and deficiencies in the prosecution case his version appeared to be plausible. The learned State counsel Rao M. Yousaf Khan, Advocate, contended that the recoveries were improperly rejected by the two Courts on account of the delay in despatch of the recovered articles but in fact there delay such as may impair the prosecutior case. It was also contended by the learned counsel that the eye‑witnesses being natural and credit‑worthy, corroboration if at all necessary, was forthcoming in the form of injuries by fire‑arm on the deceased, the spot where the occurrence had taken place and the recoveries of the empties and the guns and the number of persons charged for the offence was commensurate with the attack launched and the injuries caused. It appears to us that the two Courts were in no doubt about the eye‑witnesses being interested. This is borne out by the following observations of the trial Court referring to the background of the occurrence:‑‑-- "The abduction of Mst. Tashia which became the root cause of strained relations between the complainant party and the accused party and which led to this occurrence of double murder is not belied." The High Court also made the following observations with regard to it‑‑ "The appellants are closely related to Mst. Tashia who has been abducted by Abdul Razzaq, the brother of Mir Zaman deceased, who later on contracted marriage with her. Despite of the best efforts of the appellants, Mir Zaman deceased refused to arrange return of Mst. Tashia to her parents and relatives. Mst. Fazal Jan besides being a close relation of Mir Zaman as her son was married to his sister, prevented the appellants from entering into the house of her son Yaqub (P.W. 9) where they had come to forcibly take away Yaqub's daughter named Mst. Irshad Begum." In view of such an enmity and the relationship it was necessary that independent corroboration should have been forthcoming. The view taken by the High Court that the injuries of Sarwar caused by fire‑arm provided the necessary corroboration would not be correct when there was no assertion by any one that there was firing from the complainant side nor was there any indication that anyone of the accused firing had caused injuries to his co‑accused. It was a discordant note which did not fit in the prosecution case and could not corroborate any part of it. Similarly, the mere presence of fire‑arm injury on the two dead persons would not provide the required corroboration against the individual accused. The recovery of the fire‑arm from Ghulam Muhammad and Nazik Hussain made the prosecution case doubtful because none of the empties matched with their weapons. In the circumstances and as a requirement of safe administration of criminal justice, for want of the required corroboration, Ghulam Muhammad and Nazik Hussain were entitled to the benefit of doubt and acquittal on account of it. As regards the view taken by"' the two Courts about the delay in the recoveries, we find that the facts do not justify it. The empties from the spot were recovered on 4‑10‑1975 and were despatched to the Fire‑arm Expert on 13‑10‑1975 before the recovery of the guns. The fire‑arms were recovered from 14‑10‑1975 to 25‑10‑1975 and were despatched to the Fire‑arm Expert on 30‑10‑1975. The delay of nine days in despatch of the empties recovered when the Investigating Officer was busy in investigating the case at the spot in arresting the accused and in effecting appropriate recoveries from them is not inordinate or inexplicable. Similarly, five days delay taken in despatching the fire‑arms recovered, the last of them having been recovered on 25‑10‑1975 would not by itself be a reason for rejection of such recoveries. It is to be noted that none of the Courts has doubted either the recovery itself or its safe custody during the period. In the absence of it, mere delay, when in fact there was no such noticeable delay in despatching these items considering the duties of the Investigating Officer, could not be made a ground for rejecting their value and worth. We find that the recovery of the empty from the spot and its matching with the gun recovered from Sarwar provides the necessary corroboration required in such a case and is sufficient to record his conviction under section 302, P.P.C. In view of what has been stated, the appeal of the convict Sarwar against his conviction and sentence is dismissed but that of Ghulam Muhammad and Nazik Hussain is allowed and their conviction and sentence is set aside and they are acquitted of the charge. They shall be released forthwith unless their detention is required in some other case. M.I. /S‑23/S Order accordingly.