1989 P Cr (PLP)

This is a jail appeal filed by Muhammad Hassan son of Rasool Bakhsh who was tried for an offence under section 302, P.P.C. for having committed the murder of one Bahadur Khan. The trial Court found the appellant guilty and sentenced him to undergo life imprisonment with a fine of Rs.2,000 or in default to undergo R.I. for one year vide judgment, dated 13‑7‑1988.

2. According to the prosecution story, father‑in‑law of Sher Zaman P.W.7 died in June, 1987. The appellant went to the house of the complainant to condole the death of his father‑in‑law and stayed there for 3/4 days. During this period, he told Bahadur Khan deceased to accompany him to his village Amb Sharif for purchasing a cow and a bullock. The appellant gave out that the said cattle were available at cheaper rates in his area. Bahadur Khan alongwith his brother Sher Zaman P.W.7 and Khan Muhammad P.W.8 accompanied the appellant. They proceeded towards Amb Sharif situate at a distance of about 20 miles, on foot. The appellant was armed with a rifle. When they reached the hilly area about 2‑1/2 miles short of Amb Sharif at about Digerwela, Muhammad Hassan, the appellant, was just behind Bahadur Khan, while the P.Ws. were following them at a distance of about 25/30 Karams. The appellant suddenly fired a shot at the back of the deceased, who fell down. Sher Zaman, complainant, and Muhammad Khan P.W. ran back and went to Quaidabad on foot. Then they arranged a wagon and went towards the place of occurrence and reached there at about mid‑night. They found that Bahadur Khan was still alive though unconscious. They lifted him and took him to Civil Hospital where he died. Leaving the dead body in the hospital, Sher Zaman proceeded to Police Station Ganjial and reached there in the morning. He lodged F.I.R. Exh. P.D. which was recorded by Asghar Ali, A.S.I. P.W.9.

3. Motive alleged in the F.I.R. is that Bahadur Khan deceased was on visiting terms with Muhammad Hassan and used to go to his house. The appellant suspected that the deceased had illicit relations with his mother.

4. The appellant was arrested on 30‑6‑1987 by Asghar Ali, S.I. from near the Railway Phatak of Quaidabad and recovered an unlicensed rifle P.6 alongwith 10 live cartridges P.7/1‑10 from the appellant vide recovery memo. Exh. P.F. He also recovered blood‑stained earth from the place of occurrence vide recovery memo. Exh. P.E. After completing the investigation he challaned the appellant to face his trial.

5. I have heard the learned counsel for the State and gone through the relevant record with the help of the learned counsel. The conviction of the appellant is based on motive, ocular evidence, recovery of the rifle and the medical evidence.

6. Taking up the motive alleged in F.I.R. first, I find that the same is not at all proved by any cogent evidence. Only Sher Zaman P.W.7 stated that the appellant suspected the deceased of having illicit relations with his mother. Had it been so, the parties would not have been on visiting terms. Sher Zaman P.W.7 admitted that father of the appellant used to visit them. Khan Muhammad P.W.8 also made a statement to the same strain. Had there been any suspicion of the kind alleged by the prosecution, the mutual visits to the houses by the parties would have ceased right from the moment of such suspicion against the deceased. Moreover, the appellant having the suspicion that the deceased had illicit relations with his mother, would not have at all bothered to condole the death of his father‑in‑law. In this background, the appellant's visit to the house of the deceased appears to be against the normal human conduct. Similarly, had the motive been true, the deceased would not have readily accompanied the appellant who was allegedly armed with a rifle. I, therefore, hold that the motive alleged by the prosecution is‑totally false. No doubt, the prosecution case is not condemned for want or absence of motive. However, once a motive is set up, then it is the burden of the prosecution to prove the same. If the motive is found to be false or the prosecution fails to prove it, then the prosecution must suffer the consequence as held in Hakim Ali and 4 others v. The State and another 1971 S C M R 432.

7. Coming to the ocular evidence, I find that the same is unreliable for a number of infirmities and improbabilities found in the statements of Sher Zaman P.W.7 and Muhammad Khan P.W.8. To begin with, the pretext of purchasing the cow and bullock on which the deceased and the P.Ws. are stated to have left their house in the company of the appellant is highly improbable. Admittedly, father- in‑law of the deceased had died lust 3/4 days before the fateful day. People were coming to condole the death and were even staying with the bereaved family for several days. In this atmosphere of mourning, the deceased would have contemptuously rejected the idea of going to a far‑flung village to purchase a cow and a bullock. Moreover, buses and wagons used to ply between the village of the deceased and Amb Sharif. It is not believable that the deceased, the P.Ws. and the appellant would have travelled on foot to cover a distance of about 20 miles.

8. It is also strange that after the deceased was fired at allegedly in the presence of Sher Zaman and Muhammad Khan at about Digerwela, both of them ran away and returned at mid‑night time. Had the deceased received the injury in their presence, they would have escaped and returned in the shortest possible time to attend to the injured person. There is nothing to show that the appellant remained somewhere around to kill the P.Ws. At least, Sher Zaman, the real brother would have even run the risk of reaching the spot to make an effort to rescue his injured brother. There disappearance from the spot and return by mid night is also against the normal human behaviour and cannot be believed. The possibility that they found the deceased in an injured condition during the night I and after due conference and consultation falsely involved the appellant cannot be ruled out.

9. It also appears from the prosecution evidence that the F.I.R. was recorded in the hospital after seeing the medical report and after some preliminary investigation. The Investigating Officer, Asghar Ali, who appeared as P.W.9, stated that he had recorded F.I.R. Exh. P.B. at the police station on the dictation of Sher Zaman and thereafter he reached the Civil Hospital and recorded the statement of one P.W. He was contradicted on this point by Khan Muhammad P.W.8, who clearly stated that statements of Sher Zaman and Jahangir were recorded in the hospital and thumb‑impression of Sher Zaman was also taken in the hospital. He further stated that Sher Zaman had gone to the police station to report the matter there and the police had accompanied him to the hospital. According to P.W.8, statement of Sher Zaman was recorded at about the breakfast time. Thus, it is evident that the F.I.R. was actually recorded in the hospital on 24‑6‑1987. It was deliberately brought in line with the medical evidence after due deliberations.

10. The alleged eye‑witnesses Sher Zaman P.W.7 and Muhammad Khan P.W.8 stated that after the deceased fell down, the appellant took out the amount of Rs.6,000 from the deceased's pocket. They were contradicted on this point by Asghar Ali P.W.9, the Investigating Officer. He stated `it revealed during the investigation from Sher Zaman P.W. that the cash of Rs.6,000 had not been removed by the accused from the pocket of Bahadur Khan deceased'.

11. Apart from the above infirmities/improbabilities in their evidence, the two eye‑witnesses made considerable improvements in their statements. Sher Zaman P.W.7 had given the distance of 12 Karams from where he saw the,' occurrence. This was not mentioned in the F.1.R. Exh. P.D. Similarly, it was not,' mentioned in Exh. P.D. that he reached the place of occurrence at mid‑night and found that the deceased was lying injured at the spot unconscious. There was no mention of the threat allegedly given by the appellant in Exh. P.D. Similar improvements are found in the statement of Khan Muhammad P.W.8. Thus, it is proved that both the alleged eye‑witnesses are not truthful witnesses and their testimony cannot he relied upon to bring home the charge against the appellant.

12. So far as the recovery of the unlicensed rifle is concerned, the same is also doubtful. It is not believable that a person who according to the prosecution had committed the murder in the presence of two eye‑witnesses would carry about himself the unlicensed rifle to furnish evidence against himself. The recovery is witnessed by the same eye‑witnesses whose testimony has been held by me to be unreliable. It is strange that the same witnesses are shown to be, readily available near the Railway Phatak of Quaidabad, where the appellant was said to be present alongwith the rifle. Admittedly, the place of recovery was a Pakka road and traffic passed from there. However, no independent witness from the said place was produced to prove the alleged recovery.

13. For the foregoing reasons, I allow this appeal and set aside the conviction and sentence of the appellant. He is acquitted of the charge against him and shall be released from the jail forthwith if not required in any other case. S.A./M‑1555/L Appellant acquitted.