1986 P Cr (PLP)

(1) Incised wound 15 c.m. x 0.3 c.m. x skull cavity deep on right parietal temporal region with fracture underlying bone. (2) Incised wound 20 c.m. x 0.3 c.m. x bone deep on right side of face oblique in direction with fracture of underlying bones mendible, maxilla, spinal vertibra at the level of third cirvical. (3) Three incised wounds each 12 c.m. x 0.2 c.m. x bone deep above injury No. 2 with fracture of underlying bone, cutting lobule of right ear. (4) Incised wound 0.8 c.m. x 0.2 c.m. x bone deep on right side face vertical direction at sub-mendibular line with fracture of mendible. (5) Incised wound 0.8 c.m. x 0.2 c.m. muscle deep on back of right fore‑arm at middle part." In the doctor's opinion the death of the deceased was the result of shock and haemorrhage produced by above inquiries which were ante‑mortem and were caused with sharp‑cutting weapon like hatchet. According to him the injury No. 1 individually and injuries Nos. 1 to 4 collectively were sufficient in ordinary course of nature to bring about death. Thus, the medical evidence, as aforesaid, leaves no doubt that the deceased Rahim Bux died of the injuries found on his person. The material question to answer however is whether the appellants /accused or any of them had caused the said injuries to the deceased. In attempt to prove the complicity of the accused with the deceased's murder the evidence led by the prosecution consists of ocular evidence, recovery of blood‑stained hatchets and motive. It may be stated at the outset that the learned trial Judge was not impressed by the evidence of recovery of hatchets and consequently he excluded that piece of evidence from consideration. While rejecting the evidence of recoveries, he made the following observations:‑-- "In my view, however, this piece of evidence is not satisfactory inasmuch as the accused are arrested about eleven days after the incident and it does not appeal to me that the accused kept those blood‑stained hatchets with themselves for so much time in order to preserve the proof against themselves. During the period of eleven days, they could have at least washed their hatchets in order to obliterate the evidence of their guilt. Accused Madoo is alleged to have produced the hatchet from his cattle pen which is situated near his house. He could have thus removed the blood from the hatchet in the period of eleven days. Similarly, the hatchets produced by accused Janib and Muhammad Khan were said to be lying near the watercourse and it would not have been difficult for the accused to remove blood from them. For all these reasons, I cannot give much weight to these recoveries." We concur in the above reasoning adopted by the learned trial Judge for his reluctance to place reliance on the evidence of recovery of hatchets. There appears no justification for us to take a different view on the acceptability of the said evidence. On the contrary there are additional reasons for not accepting the evidence of recoveries. The recoveries were made in presence of Mashirs Ghulam Hyder and Karim Bux who are not only related to the deceased but also do not belong to the locality where blood‑stained hatchets were secured. However, the learned counsel for the complainant placed reliance on Leemon and another v. The State 1984 P Cr. L J 2690 to show that in similar circumstances the Mashirs who were relatives of the complainant's party and hailed from a different locality were believed in respect of the recoveries made in their presence. He further submitted that even if the Mashir in whose presence the recoveries were made is held to be unreliable for above reasons, there is evidence of the S.H.O. to prove the said recoveries. According to the learned counsel the latest trend of the authorities of the Superior Courts is that the evidence of police officer can be placed at par with evidence of any other witness, unless there are special reasons for rejecting his evidence. As for the reported case of Leemon hereinabove, it was held: "The respectability of Manzoor Ali is not questioned. There is no indication that Manzoor Ali has any animosity against the accused. The record shows that he was made Mashir on account of his availability at the spot. If a respectable person, having no malice towards the accused is readily available to the Investigating Officer, there is no need to send for Mashir from the neighbourhood." Unlike the reported case, the circumstances, in which Ghulam Hyder was made Mashir of accused's arrest and recoveries made from them in the instant case are totally different. Ghulam Hyder has admitted his relationship with the deceased through his brother Shahan who figures as eye‑witness in this case. It is also admitted by him that co‑Mashir Karim Bux is father‑in‑law of the deceased. Both the Mashirs apart from being relatives of the deceased admittedly lived in the same village where the deceased lived. The police had absolutely no justification to have called Mashirs from the deceased's village which admittedly situates three miles away from village of accused Madoo where all the three accused were put under arrest in presence of the said Mashirs. It is admitted that there were 15‑20 houses in accused Madoo's village and as such Mashirs could easily be drawn from that village. It was D equally unjustified to take again the same Mashirs from Madoo's village to a place 5‑6 miles away where recoveries were made from other accused. In this connection learned counsel for the accused placed reliance on Rasool Bux and another v. The State 1980 S C M R 225 wherein it was observed: " ....to say the least, it was very strange that Ahmed Khan (Investigating Officer) went out of his way to select as Mashir a relation of the complainant who lived in a different village. But this means that the recoveries were made in utter disregard of section 103 of the Criminal Procedure Code. Unfortunately this was a circumstance which escaped the attention of the learned Judges." In view of the above authority and for reasons given above the evidence of Mashir Ghulam Hyder as regards the recoveries of the blood‑stained hatchets from the accused does not inspire confidence. Coming to the evidence of the Investigating Officer who had made the recoveries, we may first refer to the authorities cited at the bar. The first case relied upon in this connection is of Pir Bux v. The State 1979 P Cr. L J 747 wherein it was held: "It is, therefore, clear that although in principle a Police Officer's evidence can be relied upon in support of recovery of incriminating articles but each case must depend upon its own facts and the Court must be on guard to view with suspicion any extraordinary conduct on the part of Police Officer to adopt a course which will nullify the effect of the safeguards provided by section 103, Cr.P.C. In using the words "respectable witnesses" the obvious legislative intendment was to guard against concoction. Failure of secure an independent witness to be the Mashir of the recoveries when admittedly such witnesses could be easily available is a circumstance which reflects upon the weight to be attached to this evidence." Another case touching on the acceptability of the evidence of the Investigating Officer is reported as Allah Rakho v. The State 1985 S C M R 453 wherein it was held: "We are satisfied that Muhammad Sadiq, the recovery witness could not be relied upon without further corroboration, regarding the recovery of the revolver. Although there are some cases in which the testimony of an Investigating Officer was relied upon in the matter of recovery of crime weapons. But that depends upon the circumstances of each case as also the level of credibility of the Investigating Officer concerned. In this case learned counsel for the appellant mad6 reference to evidence to show that the conduct of the Investigating Officer was not above board. The submission is supported amongst others by the approach of the High Court also namely that the recovery of the Kassis was not used as corroboration against Abdul Majid and ' Abdul Aziz; because serious possibility was visualised regarding the planting of human blood on them during the investigation. It could not have been done without the complicity of the Investigating Officer. That being so his testimony also without further independent support cannot be relied upon for accepting the recovery of the crime weapon from the appellant." It is thus clear that the evidence of the Investigating Officer cannot be accepted as a rule in case the Mashir is not trusted on account of his being partisan witness or for any other reasons. It much depends upon the credibility attached to the evidence of the Investigating Officer which again turns on circumstances of each individual case. In the instant case the way in which the S.H.O. has handled the investigation is not above board. The very fact that he preferred to call the close relatives of the complainant to act as Mashirs at places far away from their residential place where local people could be available does not cast a happy reflection on his conduct. Apart from above, it may be significant to note the observations made by the learned trial Judge as regards the manner in which the S.H.O. had secured the suzuki used by the accused and prepared the memo. of its seizure. They are reproduced as under:‑ "Even the recovery of suzuki itself is not made properly. According to the Investigating Officer, he recovered the suzuki in presence of Mashirs Gulbahar alias Gulzar and Illahi Bux. Mashir Gulbahar does not state that the suzuki was recovered in his presence. This is confirmed by Mashir Illahi Bux also who has categorically stated that at the time of recovery Gulbahar was not present at Khairpur. Mashir Illahi Bux further says that the Investigating Officer had obtained the L.T.I. of Gulbahar on the Mashirnama of securing the suzuki before even proceeding to Khairpur which means that the Mashirnama of recovery had already been prepared by the Investigating Officer at the Vardat or he obtained the L.T.I. of Gulbahar on a blank paper." In view of the above material it would be difficult to place reliance on sole word of the S.H.O. as to recovery of the blood‑stained hatchets. Consequently we hold that the evidence of the recoveries has rightly been ignored by the trial Court. It appears that the real basis for the accused's conviction is ocular evidence which consists of the evidence of complainant Sher H Khan (P.W. 1), Badaruddin (P.W. 2) and Shahan (P.W. 3). According to the complainant, in the morning of the day of occurrence, he alongwith the deceased Rahim Bux went on motorcycle to Kandhra for making purchases and at about 12 noon while they, were returning to their village, they were overtaken by a suzuki which stopped in front of them just at the date‑garden of Amir All Shah. He has stated that four persons carrying hatchets got down from the suzuki and threw challenge to the deceased that he would not be spared. According to him three of the assailants were appellants Janib, Muhammad Khan and Madoo and, the fourth assailant had his face muffled. It is in the complainant's evidence that the deceased who in consequence of accused s' threats ran for his life was overtaken and given hatchet blows by all the four assailants. He states that on his cries Badaruddin, Shahan and several others arrived and they also saw the appellants and one unknown person causing injuries to the deceased. According to him it was on their challenge that the assailants boarded the suzuki and went away. The complainant is supported by both Badaruddin and Shahan according to whom they were at Saw‑Mill of Rafaqat Ali Shah where they heard cries of the complainant. They have stated that they had gone to the Mill to have their wood cut. They claim to have reached the Vardat in time to see that three appellants and one unknown person with muffled face were dealing hatchet blows to the deceased and ultimately on their being challenged the assailants went away in suzuki. The learned counsel for the appellants was bitterly critical of the ocular evidence which according to him was wholly unreliable. He contended that it was an unwitnessed occurrence and neither complainant nor any other persons including Badaruddin and Shahan were present at the time of the incident. The learned counsel urged the following reasons in support of his arguments to reject the evidence of eye witnesses as unsatisfactory: (i) That they are interested witnesses inasmuch as that they are not only related to the deceased but are also inimical to the accused and as such their evidence cannot be believed unless it is corroborated by independent evidence. (ii) That they are not natural witnesses as they admittedly live at a distance of six miles from the place of occurrence and hence their presence was doubtful at the Vardat. (iii) That the prosecution case right from its inception was founded on false material, as the complainant falsely mentioned in the F.I.R. the name of Hussain ,Bux as one of the assailants who caused the death of Rahim Bux, although the said Hussain Bux was in jail on the day of occurrence. (iv) That all the three eye‑witnesses have been disbelieved by the trial Court in respect of co‑accused Niaz Ali who was acquitted by the said Court in spite of the fact that he was implicated by the said eye‑witnesses. (v) That apart from the said eye‑witnesses whose presence at the Vardat was doubtful, no other independent witness has been examined in support of the prosecution case, even though the several other persons were admittedly attracted on cries of the complainant. (vi) That the eye‑witnesses have contradicted each other in respect of material particulars. (iii) That the evidence of motive which has come from the mouth of same eye‑witnesses cannot be used to corroborate their testimony. (viii) That the medical evidence cannot be held to lend corroboration to the eye‑evidence as to complicity of the accused with commission of the crime. (ix) That the police did not challan Ali Gul and Mureed whose names were given by the complainant in the F.I.R., as being party to the conspiracy for committing the murder of the deceased. As for relationship of the eye‑witnesses with the deceased, it is admitted by the complainant Sher Khan that the deceased was married with his cousin, Mst. Khairan (masat), that the deceased was real brother of eye‑witness Badaruddin and that the deceased was brother of wife of Shahan, another eye‑witness. Their relationship with the deceased having been established, it is to be seen if the eye‑witnesses were also hostile to the accused prior to the occurrence. In this connection the motive attributed to the accused is by itself indicative of the State of relations between the parties. Because the deceased was suspected by the accused party to be in toe with their woman, it would be logical to conclude that the relations between the parties were far from satisfactory. Motive is another name. of enmity. If it is advanced by the prosecution (complainant's party) as reason for the accused to commit the murder of the deceased, it can equally be used by the accused side as a reason for complainant‑party for their false implication. Motive has invariably been held as double‑edged weapon which cuts both ways. In the instant case motive is not the only weapon on which the accused rely for establishing the animosity of the complainant‑party with them. Both P. Ws. Badaruddin and Shahan have K also admitted in their evidence about prior enmity between the parties. Badaruddin admits: "It is correct that prior to this incident there were counter cases filed by Muhammad Khan (accused) against us and we had filed case against Muhammad Khan. The admission made by Shahan is in these terms:‑- "It is correct that there was enmity between accused Muhammad Khan on one side and Rahim Bux and Badaruddin on the other side prior to the incident." On appraisal of the material on record as above, we have no hesitation to hold that the status of the eye‑witnesses was not better than that of interested witnesses and as such their evidence needed independent corroboration before conviction of the accused could be based on their testimony. It appears the trial Court sought the requisite corroboration of eye‑witnesses from two sources: namely, motive and medical evidence. So far medical evidence is concerned, suffice it to say that it proves only the factum of injuries. It also contains the opinion of the medical expert as to the nature of the injuries and the weapon used to cause such injuries. In no way it is helpful to prove the involvement of the accused in the commission of the crime. In this connection reliance has been placed on Machia and 2 others v. The State P L V 1976 S C 695 wherein it was held: "However, on the assumption that the medical evidence is consistent with that of the eye‑witnesses can medical evidence corroborate ocular evidence which is tainted by enmity? Medical evidence by itself and without more cannot throw any light on the identity of the assailants but in case of inimical evidence it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye‑witnesses have spoken the truth." In the instant case, it is difficult to hold that the medical evidence leads even to a limited inference that the eye‑witnesses have spoken truth, as regard the number and location of injuries caused to the deceased and the weapons used to cause such injuries. As disclosed in the medical evidence the deceased had sustained in all seven injuries, all caused with sharp cutting weapon such as hatchet. It seems that excepting on injury which was on right forearm, the rest of the injuries were seated on right side of the deceased's body, extending from face and ear to spinal cord. According to the eye‑witnesses four persons had caused these injuries to him. It was argued by the learned counsel for the appellants that the location of injuries suggests that it was the act of one or two persons. His contention was that it does not appeal to reason that all the assailants would cause injuries to the deceased from one side and at almost same part of his body. In support of his argument he cited the case of Habibullah and others v. The State PLD 1969 S C 127 in which four assailants had caused four injuries to the deceased. It was held: "The injuries on the deceased did not indicate that four persons had pounced upon him and caused him hatchet blows one after the other as alleged by Khuda Bakhsh. It is difficult to believe that each one of them stopped short at giving just one blow each. All the injuries on the deceased could have casily been caused by one or two culprits between themselves." Of course in the instant case number of injuries found on the deceased's person were more than the number of assailants, even then as pointed out above they could not have been caused by four persons. Thus, the medical evidence instead of lending much needed support to eye witnesses, seems to belie their version of the occurrence. Accordingly medical evidence cannot be held to have corroborated ocular evidence. Coming to the evidence of motive, it would be noticed that complainant Sher Khan has deposed with regard to motive. He has stated thus: "The accused committed the murder of deceased Rahim Bux because accused Janib used to suspect the deceased to be on illicit terms with Mst. Anwar." In course of his cross‑examination he has further admitted that Mst. Anwar is wife of Ali Hassan who has divorced her. In the F.I. R. Ali Hassan is shown to be nephew of accused Janib. As stated above the evidence of eye‑witnesses including the complainant is in need of independent corroboration. The question arises if the evidence of motive which has come from the mouth of the complainant can be used to corroborate his own evidence. The answer p to this cannot but be in the negative. His evidence in respect of occurrence which needs corroboration cannot be corroborated by his own evidence in respect of motive. It is independent corroboration which is needed, and the evidence of same witness in respect of some other matter cannot be treated at par with independent corroboration. In support of this view reference has been made to the Supreme Court authority reported as Nawaz All and another v. The State 1981 SCMR 132 wherein it was observed: "It is true that the eye‑witnesses gave evidence of motive but as the question was of corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants." It is clear that even the evidence of motive coming from the mouth of the complainant cannot be used to corroborate the ocular evidence. Reverting to the evidence of eye‑witnesses, it goes without saying that all the three of them hail from the same village which admittedly situates 6 miles away from the place of occurrence. Accordingly we are R inclined to share the view expressed by the learned counsel for the appellants that the eye‑witnesses are not natural witnesses. Therefore, their evidence requires close scrutiny. Our first impression is that in ordinary course the persons residing at such a distant place were not expected to be eye‑witnesses to the occurrence. The learned counsel for the complainant in his attempt to dispel our doubts about the presence of eye‑witnesses at the vardat, put forward the argument that since the F.I.R. was lodged with promptitude, the complainant had obviously no opportunity for deliberations for making concoctions and fabrications. While giving this argument, the learned counsel seemed I to have overlooked that the same complainant mentioned the name of Hussain Bux falsely in the F.I.R. and subsequently when he came to know that Hussain Bux was in jail on the day of occurrence, he improved I upon his version of the incident in Court and substituted the name or Hussain Bux by a person with a muffled face. Similarly other two eye‑witnesses also toed his line in their evidence in Court. Even this later version was not free from doubt. The deceased was done to death because of his illicit connections with woman of the accused's side. In such a case the assailants had no reason to hide their identity. Moreover, three of them went with their faces open. It was, therefore, not understandable why their fourth companion should take care to muffle his face. It appears to us that the eye‑witnesses have attempted, though unsuccessfully, to muffle their falsehood. In order to be consistent with the F. I. R. inasmuch as that four persons had committed, the murder of the deceased, the eye‑witnesses after being informed I that Hussain Bux was in jail at the time of occurrence, instead of dropping the fourth person, came out with the statement that fourth person had his face muffled. As claimed by P.Ws. Badaruddin and Shahan they had gone to Kandhra for having their wood cut and were available at the Saw‑Mill of Rafaqat Ali Shah when they responded to cries of the complainant. The statement of Badaruddin appears to be self‑contradictory. According to him the deceased accompanied by complainant Sher Khan left for Kandhra at 8 O'Clock in the morning while he and Shahan left for the same village 10‑15 minutes thereafter. He has stated that they reached the Saw‑Mill at 12 noon, indicating thereby that their bullock‑cart took nearly four hours to traverse the distance of only six miles. In the same breath he has stated that their wood was cut by 12 O'Clock and they were about to leave the Saw‑Mill when they heard cries. He has said that they had made the payment for cutting of the wood but again correcting himself has stated that they were about to make payment when their attention was drawn by the complainant's cries. Moreover, he at variance with Shahan as regard the ownership of the wood. According to Badaruddin wood belonged to both of them but Shahan has stated that both the wood and the bullock cart in which it was taken to Kandhra belonged to Badaruddin. If that was so, his going to Kandhra was without any purpose. Similarly complainant had no work at Kandhra. He went there only to give company to the deceased. It seems that all that they did at Kandhra was to purchase three pieces of cloth. It is admitted by all the eye‑witnesses, that apart from Shahan and Badaruddin several other persons came from the Saw‑Mill on cries. However, they are unable to name any of those persons. Even police have not made any effort to enquire from those persons about the occurrence and cite them as witnesses. Thus even though independent witnesses were available at the vardat, yet they were not produced in evidence. It is not enough to do away with their evidence merely on the ground that such witnesses are generally not willing to come forward and support the prosecution case. The police should under no circumstances show their slackening in procuring the evidence of independent witnesses if they were present at the time of occurrence. In case after they are cited as witnesses and are produced in Court for evidence, they do not support the prosecution on account of any U pressure, they can be cross‑examined in order to convince the Court about the reason for their resilement from their initial statements. In the instant case although the independent witnesses were admittedly available at the time of occurrence, they have neither been cited as witnesses nor produced in Court. In absence of satisfactory explanation with regard to such omission, the only presumption would be that the prosecution wished to set up a totally false case only on the basis of interested witnesses. Apart from above we are unable to believe that Badaruddin and Shahan would have arrived at the Wardat in time to see the accused in action. It is clear that they were attracted on cries of complainant who had obviously raised cries after the accused had emerged from the suzuki and challenged the deceased. Even if the deceased had started running, he would have been overtaken by the accused after he had hardly covered a few paces. Immediately on overtaking him, they must have dealt him hatchet blows. If so, by the time the above witnesses had covered the distance of 100 paces from the Saw‑Mill to the Vardat, the accused would have finished their job before their arrival. It is also incredible to believe that they saw the accused giving blows to the deceased and identified them from the Saw‑Mill. Moreover, it is in the evidence of Gul Bahar Mashir of Vardat (P.W. 4) that there was jowar cultivation at the place of occurrence with height almost equal to human stature. Accordingly it was not possible for above eye‑witnesses to have seen the occurrence even from a short distance. In view of these considerations we are satisfied that none of the above eye‑witnesses had seen the occurrence. The learned counsel for the appellants was right in poining out that no reliance can be placed on the evidence of above eye‑witnesses also for the reason that on one hand the trial Court has disbelieved them in respect of co‑accused Niaz Ali who in spite of being implicated by them was acquitted and on the other hand police did not deem fit to challan Ali Gul and Mureed who were named by the complainant in the F.I.R. as having hand in the murder of deceased Rahim Bux. While rejecting the evidence of eye‑witnesses in respect of co‑accused) Niaz Ali, the learned trial Judge has placed reliance on them for conviction of the accused mainly on the principle of "falsus in uno falsus in omni bus" which in view of the learned Judge is no longer applicable in our country. On that principle the Courts are no doubt permitted to separate grain from chaff and while doing so, they can W accept that part of evidence which, in their opinion, is true and rejected the other part which is found by them to be untrue. But in that case they have to look for independent corroboration before basing conviction on the evidence of such witnesses. However, disagreeing with the reasoning of the trial Court in this regard, the learned counsel for the accused cited recent authority of the Supreme Court reported as Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 S C 11 wherein it was held: "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases, slightly differently; namely, that the testimony of an eye‑witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is half‑mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown P L D 1951 Lah. 66 propounded by late Chief Justice Muhammad Munir that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused." In view of the above authority strong independent evidence is required to corroborate the witness who has been disbelieved in respect of part of his evidence, before placing reliance on other part of his evidence. As stated above no such independent corroboration is forthcoming in the instant case to support the eye evidence which has been disbelieved in respect of co‑accused Niaz Ali for the purpose of convicting the appellants. The upshot of the above discussion is that prosecution have failed to bring home the guilt to the appellants /accused who were, therefore, acquitted by short order referred to above. H. A. K. Appeal accepted.