2004 PLP 334 (YLR)

Sardar Khan as said above is the father-in-law of the deceased while Irfan Ullah is his maternal grandson. He is the real son of the deceased, so they both were closely related to the deceased. They also appeared to be inimical towards the appellants as Irfan Ullah has admitted in the cross-examination that they had enmity with them (accused) for the last about 27/28 years. The following sentence from his cross-examination is reproduced here for facility of reference in this behalf:-- "We have the enmity with the accused for the last about 27/28 years." So both the P.Ws. can validly be said to be inimical towards the accused. Their evidence, therefore, is to be scrutinized cautiously.

11. The incident as per their showing had taken place at the metalled road near the house of the two appellants at about 1-00 p.m. on 10-12-1999. The house of Sardar Khan was at a distance of about 1-1/2 Km. from the same. He, thus, did not reside at the place close to the venue of occurrence. He has offered explanation for his presence there at that time that he was going to offer Juma prayer to Mauza Dheroghuna from his village. He while interestingly has admitted that there are two mosques even in his own village. According to him, there is Imam in each of these mosques. Although he has voluntarily stated that Juma prayer is not offered in his village for the last 25 years but he seems to have spoken not truly in this matter. It is because that it is a village of Muslims which is evident from the fact that there were two mosques there in those days and each mosque had its own Imam and then how it could be believed that there had not been offered Juma prayer for complete 25 years. This part of his statement simply is not believable. He seems to have told lie on this aspect of the matter. It perhaps was to create an excuse of his presence at the spot and having seen the occurrence.

12. He interestingly has also stated that there is a Councillor of his village as well as Lamburdar. He also seems to have told lie that population of his village consists of only 350 persons. It is because when there was a Councillor of his village, it means that the population of the same village must be in thousands and not only 350 individuals. Because it is commonly known that Councillor is elected or chosen for a population of a certain area, which normally runs in thousands and not that of such little strength. Any way, due to his abode at a distance of about 1-1/2 Km. from the venue of occurrence; he certainly is a chance witness. His evidence therefore, when he is interested as well as chance witness is not safely reliable.

13. The same is the position of Irfan Ullah P.W- He is also surely an interested and chance witness. According to him on 10-12-1999 at about 1-00 p. m, , he alongwith Ishtiaq was going to his Dera from his house and when they reached near Primary School he saw his father going with horse loaded with fodder and there he had seen the occurrence. He in the cross examination has admitted that his Dera was at a distance of about one Kilometre from the place of occurrence towards the North of the same and the primary school -at a distance of 50/55. feet from the same. He, thus too is resident of a place at some, distance from the place of occurrence and not close to the same. His presence at the spot at the relevant time, if may be believed for the sake of arguments, even then that it was per chance. He, thus, too could not be termed in any way as the natural witness of the occurrence. The explanation offered by him for being present at the spot too seems to be made un one to show his presence at the spot. His evidence, therefore, too is inherently not reliable as he is interested and chance witness.

14. The learned trial Court has mentioned that as they have offered the, explanation for their presence at the spot, hence they could be termed as the natural witnesses. This approach of it is against the position on the record. They could not be in any way termed as the natural witnesses of the incident and the cause offered by them of their presence at the spot was made up one. I, therefore, hold them to be not reliable witnesses at .all. Their evidence therefore, is discarded.

15. Dr. Muhammad Munir Ahmad (P.W.4) has stated that the following injuries were found on the dead, body of the deceased:-- (1) Eight wounds of fire-arm entry about 5 to 6 inches apart front of left chest with inverted margins. Each, wound was measuring 0.5 x 0.5 c.m. (ii)Two wounds of fire-arm entry 0.5 x 0.5 right hypochondrium with inverted margins. (iii) A fire-arm wound of entry 0.5 c.m. x 0.5. c.m. on left forearm an exit 1 x 1 c.m. on left forearm. (iv) A lacerated wound excavated wound 2.5 x 2 c.m. on the right ankle. The muscles were damaged. (v) Two wounds of fire-arm exit 0.75 x 0.75 c.m. each on left loin.

16. He in the cross-examination has stated that injury No.3 is the exit wound as well as the entry and injury No.5 is the exit wound of injury No.2 and injury No.4 was not having any exit wound. The learned counsel for the appellants has contended that these injuries were result of one fire and not more than that and the same is supported by the fact that only one empty was found from the spot. The doctor has admitted that there was no blackening on the injury. He has not denied that all the injuries were caused to the deceased by a single shot and these were result of stray pellets. He has also not denied that in the case of injury No. l all the pellets had entered the body of the deceased simultaneously. He, however, has admitted that in the case of injury No.2 the pellets had entered the body enmass.

17. According to the ocular account, the two appellants and their absconding accused Tariq Mehmood had fired with the weapons with them at the deceased. It is matter of ordinary prudence that if the three assailants had fired at the deceased then there could be more empties at the spot than the solitary one found therefrom. Due to this position in the evidence and that of the doctor that pellets have spread by the fire and those had caused the above narrated injuries, it is quite probable that one fire shot had hit the deceased and not more than that. If this was the position, then the medical evidence is not in confirmatory to the ocular testimony. The learned trial Court, therefore, has erred in receiving the same as supportive to the same.

18. The evidence regarding the recovery of gun P-3 has been furnished by Irfanullah and Abdul Hamid, S.-I. (P.W.11). According to Irfanullah, accused Basharat on 8-4-2000 had led to the recovery of said gun from the house of absconding accused Tariq Mehmood, while Abdul Hamid, S.-I. has stated that he has led to the recovery of this weapon from his house. He in the cross-examination has admitted that Irfanullah and Mazhar Iqbal per chance came to the police station, wherefrom they had joined them for the recovery. Irfanullah as said above being interested witness has not been found reliable witness in the instant case. Mazhar Iqbal is also related to him being his uncle though he has not been produced by the prosecution at the trial. Irfanullah has admitted that the main door of the house wherefrom the recovery was effected was lying open and the families of appellant Basharat and absconding co-accused Tariq Mehmood were living there. He has also admitted that appellant Khalid, his wife and children also resided there. It, thus, was not in exclusive possession of any of the two appellants and absconding co-accused l Tariq Mehmood. Abdul Hamid, S.-I. has also admitted that the recovery was effected from an iron box, which was lying open and that room was not locked. The recovery of the said crime weapon, therefore, in such circumstances is inconsequential. It could not be received as of any corroborative value to the ocular account.

19. The report Exh.P.T. of the Forensic Science Laboratory, therefore, in these circumstances was of no effect. The learned trial Court, therefore, has erred in receiving these pieces 'of evidence in corroboration to the ocular testimony.

20. The motive set up by the prosecution has been narrated by Sardar Khan and Irfanullah P.Ws. Sardar Khan has stated that the appellants and their co -accused had taken the possession of the land from him in December, 1971 and the deceased had got restored the same to him in June, 1973. The incident had taken place in December, 1999. The event of restoration of possession, if tray be believed to actually had taken place was about 26 years prior to the same. He interestingly had admitted that the age of appellant Khalid Mehmood was about nine years and that of Basharat five years and absconding accused Tariq Mehmood 12 years at that time. It means that the appellants and their absconding accuser were boys of little ages at that time. This is no where available from his evidence that during this period of 26 years there has happened any other untoward incident except the present one. It, thus, cannot be believed that in fact the event of restoration of possession to this witness by the deceased was the motive behind the murder of the latter.

21. Ifranullah has given his age about 17 years at the time of recording of his evidence. It means that he even had not born at the time of restoration of land to his maternal grandfather Sardar Khan. So, how he could be a suitable person to say any thing about the motive part of the story. It is here interesting to note that he at the trial has given another motive as well. According to him that due to the dispute of land the legs of Ghulam Muhammad., acquitted accused were broken and the hands of his wife were twisted and she became disabled and the accused had threatened them to take revenge of the same. He has made this addition in the story of motive at the trial. He was duly confronted with his statement Exh.D.A. before the police in this regard and it was found not so mentioned by him in the same. So, this improvement by him in the motive part of the prosecution story seems to be dishonest one and was perhaps to make the motive to be recent one to inspire confidence in the same. This but is worthy of exclusion from consideration being dishonest improvement on his part. Hence, it appears that the incident of restoration of the land to Sardar Khan by the deceased could not be a sufficient motive with the appellants to take away his life. The learned trial Court,' therefore, has erred in receiving it as of corroborative value to the ocular testimony.

22. As a consequence of the above discussion, I find that the prosecution has failed to bring home the guilt to the two appellants as well beyond any shadow of reasonable doubt. They, therefore, have wrongly been convicted and sentenced by the learned trial Court. The impugned judgment to the extent of their conviction and sentence is not liable to be sustained.

23. I, therefore, accept the instant' appeal, set aside the impugned judgment to that extent and acquit them of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any other case. H.B..TJK-280/L Appeal accepted.