1992 PLP 2185 (MLD)

We have heard the arguments. and perused the record. It has been contended by Ch. Muhammad Taj, the learned counsel for the appellant, that the Shariat Court has committed error in not properly appreciating the material on the record. He has also argued that it is a daylight murder and the prosecution case stands proved by the statements of Mst. Hanifa Begum, Sakhawat and Imdad, the eye‑witnesses, and other material on the record. The learned counsel has maintained that the Shariat Court is not correct in holding that medical evidence belies the statements of the eye‑witnesses, because the fatal injury sustained by Sawar, deceased, could not be caused by firing gun from a distance of 16‑1/2 feet as stated by the said witnesses. The learned counsel has argued that the opinion of the learned Judge in the Shariat Court that had the distance between the assailant and the victim of offence at the time of sustaining the fatal injury been 16‑1/2 feet, there would have been several openings around the central aperture due to spreading of the pellets but the fatal injury was 1" x 1" (entrance wound) and 2" x 2" (exit wound) which implies that gun was fired from a distance of 3 to 6 feet is incorrect. The learned counsel has argued that the testimony of the eye‑witnesses could not be discarded without experimenting with the gun by firing the cartridge of same description which was used by assailant. Thus, the learned counsel has contended that the Shariat Court committed error in disbelieving the testimony of the eye‑witnesses. He has further argued that in the instant case it could not be said that the eye‑witnesses, namely, Imdad and Sakhawat were casual witnesses because they happened to be in their fields at the relevant time as is usual in case of village folk. Even otherwise, the learned counsel has argued, their houses happened to be only few yards away from the place of occurrence and they would have conveniently stated to have seen the incident from their houses. The learned counsel has also argued that the fact that Jewan and Maqsood, the recovery witnesses of the gun from Muhammad Anwar and of the articles seized lying near the dead body have categorically stated that wooden support of the gun belonging to Muhammad Anwar, deceased, was not lying near the body, is clearly indicative of the fact that the investigation was not conducted honestly and the said wooden support of the gun was fictitiously shown to have been found lying near the dead body so as to give benefit to the accused‑respondent. The learned counsel cited following authorities in support of his contention that the capital punishment should be awarded to the respondent; and that the conviction can be based even on the testimony of a single witness: In case reported as Muhammad Sharif v. Muhammad Javed P L D 1976 SC 452, where the conviction was recorded under section 302, read with section 34 or section 149, there must be no difference so far as the quantum of punishment to the accused is concerned and normal penalty of death can be awarded for constructive liability. In. Liaqat v. The State 1975 P Cr. L J 21, it was observed that conviction can be based on single truthful witness. In this case two of the witnesses were closely related to the deceased: The third witness was found independent and conviction and sentence was based on his testimony observing that large number of witnesses is not required to prove the case. In reply, the learned counsel for the respondents has argued that the accused‑respondent war‑ found innocent in investigations conducted by the senior Police Officers. He has argued that the accused‑respondent was roped in due to deep‑rooted enmity between the parties. He has argued that it is on the record that Dastar, respondent, was falsely implicated in the murder of Gulbahar, the nephew of Sawar, deceased, in which he was subsequently acquitted. He has contended that the testimony of the eye‑witnesses is not only biased, interested and partisan but the same is also belied by the medical evidence which shows that the fatal injury on the person‑ of Sawar, deceased, was caused by firing the shot gun from a distance of 16‑1/2 feet, which is not possible in view of single injury measuring 1" x 1" (entry wound) and 2" x 2" (exit wound) on the chest of the deceased: The learned counsel has referred to the opinion of the medical experts as recorded in the standard treatises on the subject. He has further argued that the fact that the prosecution witnesses have signed the recovery memos. wherein the wooden hold of the gun belonging to Muhammad Anwar, deceased, was seized lying near the dead body but they denied the fact in the statements made at the trial which implies that they are not truthful witnesses and are after false implication of the respondent. The learned counsel has argued that the fact that the wooden support of the gun belonging to Muhammad Anwar was seized by Abdur Rehman, Sub‑Inspector, when he reached the spot only few hours after the incident, excludes the possibility that the wooden support of gun was fictitiously shown to have been seized lying near the dead body alongwith plough which the deceased was carrying at the time of occurrence. The said Investigating Officer could not have been won over when even the respondent had not yet been arrested. He has maintained that the effect of seizure memo. of plough and the wooden support of the gun of Muhammad Anwar was joint and it goes a long way to show that in fact the wooden support was seized lying near the dead body and the prosecution witnesses are telling lie that it was not seized as has been shown in the seizure memo. The learned counsel further contended that had the prosecution story been true, the wooden support could not be found near the dead body because none of the eye‑witnesses states that Muhammad Anwar went near the dead body after firing at the deceased; according to Mst. Hanifa Begum, she remained near the dead body after the incident. The learned counsel has also argued that the Register of the petition writer produced in defence shows that Sakhawat Khan, P.W., had got written a F:I.R. of the incident in question on 22‑4‑1978 in which only Muhammad Anwar was named as a culprit but subsequently the said F.I.R. was not filed with the police station and instead a false F.I.R. was made so as to falsely implicate the respondent, Dastar, in the case. We have given due consideration to the arguments at Bar. As has been stated above the Shariat Court has come to the conclusion that the evidence of the eye‑witnesses is contradicted by medical evidence. The argument of the learned counsel is that the possibility that the cartridges of LG designation were used in the commission of offence cannot be excluded and in that case the .medical evidence is not contradictory to the statements of the eye‑witnesses. It may be stated that there is no material on the record that in the instant case the cartridges used were of i‑,G designation. But assuming that the cartridges used were of LG designation, even then the view taken by the Shariat Court is not falsified. A cartridge of LG designation contains 6 to 8 shots (pellets), depending upon the length of the cartridge. The diameter of each shot is 0.360 inch. Thus, even in case of LG cartridge, a single shot (pellet) cannot cause 1" x 1" entry wound if the gun is fired from a distance of 16‑1/2 feet; the injury must have surrounding openings caused by spreading shots. A LG cartridge which contains shots of 0.360 inch diameter each cannot cause entry wound 1" x 1" fired from a distance of 16‑1/2 feet; the dimension of the wound would be much lesser; the dimension of the entry wound shows that the injury was caused by a group of pellets fired from a distance of 3 to 6 feet. The fact that the LG cartridges contain 6 to 8 shots depending upon the size of the cartridge and that its diameter is 0.360" as indicated above, is evident from the book entitled `Medical Jurisprudence by Jhala and Raju, 19'88 Edition. The relevant table is given at page 338 of the book. Alt other types of the cartridges, i.e. MG, SG, etc., contain 1 to 13 and more pellets or the shots and their diameters are also lesser than that of LG cartridge. Thus, .the cartridges of whatever designation may have been, the pellets‑ must have entered body in a group as a result of fire from a distance of 3 to 6 feet and not more. To elucidate the matter, a reference may be made to the Medical Jurisprudence of Modi which says that if shot gun is fired from 12 feet of distance all the individual pellets hitting the body would form a separate opening spreading from 5 to 8 inches of diameter depending upon the choke and there would be no scorching, blackening or tattooing. The relevant extract from the treatise of Modi (22nd Edition, p.228) is reproduced as under:‑‑‑ "The exit wound of a close range shot may show greater damage of tissues than the entrance wound, the margins are averted, but there is no evidence of blackening or singeing. At a distance of one to three feet small shot makes a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot entes as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unconsumed grains of powder. On the other hand at a distance of six feet the central aperture is surrounded by separate openings in an area of about two inches m diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads wide!, and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28 inches from an unchoked barrel are produced and at about 100 feet the spread pattern on the target is about 30 inches from a fully choked barrel and 50 inches from an unchoked one." (underlining is ours). Thus, it is evident that the Shariat Court has rightly come to the conclusion that ocular evidence in the case is contradictory to the medical evidence in view of the nature of the fatal injury. The next question which needs determination is the opinion of Ballistic Expert. It may be stated here that on 22‑4‑1978, the date on which the occurrence took place, .12 bore gun which was recovered at the instance of Muhammad Anwar from his house, contained an empty of cartridge in the chamber of the gun tightly fixed and the gun was without the wooden support. The wooden support of the gun was found lying near the dead body‑where the plough and its iron part were also lying. This shows that the wooden support of the gun must have separated and fallen when Muhammad Anwar, accused, fired the fatal shot at the deceased from a close distance of 3 to 6 feet. The articles lying near the dead body were also taken into possession by Abdul Rehman, Sub‑Inspector, after reaching the spot on 22‑4‑1978. The other empty of the cartridge was taken into possession from the compound of Muhammad Anwar, deceased‑accused. Both these empties of cartridges, one found from the compound of the house of Muhammad Anwar and the other from the chamber of the gun were found by the Ballistic Expert to have been fired from the gun recovered from Muhammad Anwar, deceased‑accused; these empties were not found to have been fired from the gun recovered from Dastar alias Bhatti, respondent, which was recovered from a hotel after 8 or 9 days of the incident. Thus, the report of Ballistic Expert also runs counter to the version of S the prosecution witnesses when they state that the fatal injury was caused by Dastar, respondent, because according to prosecution witnesses only two fires were fired during the incident. It is not ‑ the case of the prosecution that Muhammad Anwar, deceased‑accused, fired twice with his gun. The expert opinion considered alongwith the factum of seizure of wooden support of the gun from near the dead body; clearly shows that the occurrence did not take place in the manner in which the prosecution witnesses have stated. Had the occurrence taken in the manner in which the prosecution witnesses have described, it would not have been possible for the wooden support to be found lying near the dead body of the deceased and there would have been no contradiction between the medical evidence and the eye‑witnesses regarding the distance between the assailant and Sawar Khan, deceased, at the time of causing of fatal injury. Muhammad Razaq, D.S.P., who was last to be deputed for the investigation, states that fatal injury was caused by Muhammad Anwar (the dead accused) when he was `quite near' to the victim of offence, i.e., Sarwar Khan. Muhammad Razzaq, D.S.P., also states that the reason for empty of second cartridge to be found in the chamber of the gun was that when the wooden support separated from the gun and fell apart on the ground, the empty could not be easilv ejected back from the chamber and remained tightly fixed in the chamber. The argument advanced by the learned counsel for the appellant that in fact the wooden support was not found lying near the dead body is not acceptable in view of the recovery and seizure memos Exhs. PE and PC and the attending circumstances already stated above. The argument of the learned counsel for the appellant that the recovery and seizure memos, Exhs. PC and PE were fictitiously prepared so as to give concession to the accused-respondent, is not tenable firstly because the seizure memos were prepared at the very early stages of the investigation and., it is improbable that the accused respondent prevailed upon and won over the Sub‑Inspector, Abdur Rehman, P.W., even before his arrest and preliminary investigation. The mere fact that it is not mentioned in the inquest report that the wooden support was lying near the dead body would not make any difference, especially so when the relevant recovery and seizure memos clearly show that the wooden support of the gun belonging to Muhammad Anwar, deceased, was not only recovered from near the dead body but the gun recovered from Muhammad Anwar was also without the wooden support; besides the inquest report, the seizure memos Exhs. PE and PC were prepared on the day of occurrence within few hours of the incident. Thus, the contention of the learned counsel for the appellant that .the separation of wooden support from the gun was effected with the ulterior motive by the Investigating Officer, is not tenable. If the wooden support is accepted to be found near the dead body, then the prosecution story becomes very doubtful because all the prosecution witnesses, especially Mst. Hanifa Begum who remained near the dead body, do not explain as to how the wooden support happened to be lying near the dead body. The prosecution witnesses, apprehending the fact that the presence of the wooden support near the dead body may give benefit to Dastar, respondent, or may render the prosecution story doubtful, became conscious and, thus, all of them said that the wooden support of the gun was not lying near the dead body of Sawar Khan, deceased. If we believe the version given by the so‑called eye‑witnesses to be true, then we will have to assume that the report of the Arms Expert that the two empties were fired by the gun belonging to Muhammad Anwar is incorrect, for which there is no reason whatsoever. According to the prosecution both Sakhawat and Imdad, the alleged eye‑witnesses, were cutting grass in their fields at the time of incident. The learned counsel for the appellant has argued that it was natural for them to cut grass as is usual with the farmers. It is correct that the possibility that they were cutting grass cannot be excluded but at the same time it cannot be said that the witnesses were natural and cannot be regarded as chance witnesses. Both of them place themselves exactly on the spot from where they could see the whole occurrence by themselves. It is correct that their houses are also in the vicinity of the place of the occurrence but probably they could not see the whole occurrence from their houses. These witnesses, namely, Sakhawat and Imdad, are also related to the deceased, Sawar Khan, and are inimical to the respondent because at the relevant time, Dastar, respondent, was facing charges of murder of Gulbahar, the real nephew of Sawar Khan, deceased, and was on bail. The said witnesses stated that they were also witnesses for the prosecution in the case of murder of Gulbahar in which the accused‑respondent was subsequently acquitted. Thus, the eye‑witnesses are not only chance witnesses and related to the deceased but they had strained relations with the accused‑respondent. Imdad, P.W., has also admitted that he was convicted and sentenced in a case of abduction of the sister of the accused‑respondent. Thus, it is highly probable that these prosecution witnesses got together to falsely implicate the respondent in the commission of offence because that could be conveniently done in the instant case after attributing initial fire to Muhammad Anwar, deceased. Enmity of the deceased, Sawar Khan, with Muhammad Anwar is stated to be some dispute over the immovable property. Abdur Rehman, Sub Inspector, has stated that it was a common rumour in the village that there Were illicit relations between the wife of Muhammad Anwar, accused deceased, and Sawar Khan, deceased. The fact is also alleged in the charge sheet filed in the Court. Whatever be the motive of Muhammad Anwar to kill Sawar, the fact remains that the prosecution does not deny that it was he who first fired at the deceased. Thus, this would not be a. case of substitution for actual offender, rather it is a case of roping in a person for which the enmity between the parties was a root cause, i.e., the murder of Gulbahar for which the accused‑respondent was already facing trial. Thus, we are of the view that the testimony of Mst. Hanifa Begum, Sakhawat and Imdad was rightly disbelieved by the Shariat Court for the reasons indicated above. It may be stated here that the investigation in the case changed hands many times. The investigation was also conducted by the senior officers of the Police. It cannot be said that all of them joined hands to give undue benefit to Dastar, respondent. It may be stated that all the Investigating Officers, right the D.I.G., found the accused‑respondent, Dastar, innocent. These facts) cannot be easily brushed aside in a criminal case. It may be stated that in a criminal case the charge must be proved beyond reasonable doubt by the prosecution. Mere fact that some witnesses who have motive to give false statements have implicated the accused is not sufficient to record conviction when there are inherent doubts in the prosecution case. It is on the record that just after the occurrence, quite a number of the village folk reached the spot but none of them was cited as witness. The Shariat Court has rightly held that the occurrence having taken place where the houses of other independent persons are also situated and they are also admitted to have arrived on the spot after the occurrence but none of them was produced to corroborate the statements of Mst. Hanifa Begum and other eye‑witnesses. This casts serious doubt on the prosecution case. It may be stated that in case of acquittal there is double presumption of innocence. Until and unless the order is found to be perverse, that is not liable to be interfered with. A reference may be made to the following authorities: In a case reported as Ghulam Ali v. Rasab PLD 1983 SC 135, it was observed that as the High Court passed the order of acquittal on appraisal of evidence and recorded acquittal on the ground that the witnesses were interested, inimical or had motive to implicate the innocent person, and the appraisal of evidence by the High Court does not suffer from any legal infirmity, the order of acquittal cannot be disturbed. In a case reported as Mian Said Baghdad v. Said Mian 1983 SCMR 117, it was opined that the order of acquittal recorded by the High Court cannot be disturbed merely because the Supreme Court can take a different view of the matter. In Ahmad v. The Crown PLD 1951 FC 107, it was observed that before an order of acquittal is reversed it must be shown that the order is manifestly wrong. If two conclusions are equally possible, an order of acquittal cannot be disturbed. In the State v. Khan Beg .1970 SCMR 353, it was observed that the principle has been consistently followed by the Supreme Court that acquittal order recorded by the High Court will be interfered with only when it is shown that the acquittal is not supportable on any of the grounds on which the same was ordered. The mere fact that a different view of the matter is possible, will not justify to interfere with the order of acquittal. In case reported as Gul Nawaz v. The State 1968 SCMR 1168(2), it was observed that the appellate Court should bear in mind that presumption of innocence of accused person is strengthened by acquittal and the same cannot be lightly interfered with. The authorities cited by the learned counsel for the appellant are not relevant as indicated above because the same have not been given in cases of acquittal as stated in the earlier part of the judgment. In the light of what we have stated above finding no force in this l appeal, it is hereby dismissed. The bail bond and the surety bond, executed by respondent No.1, if any, are hereby discharged. N.H.Q./347/SCA Appeal dismissed.