1996SCMR317 (PLP)

RAJA AFRASIAB KHAN, J.‑‑‑On 10th of October, 1987 at 7.45 P.M., a case was, initially, registered on the statement of Muhammad Riaz against Naik Muhammad alias Nota, hereinafter called Naik Muhammad, Gulzar, Sharaf, Zaman and Khushi Muhammad under section 307/148/149, P.P.C. for causing fire‑arm injuries to Mst. Nuran which, on her death, was converted into section 302/148/149, P.P.C. with Police Station Qaboola Sharif District Sahiwal. Muhammad Riaz is a resident of village Luqman Miruka and cultivates his land to earn his livelihood. On the fateful day, at about 5.00 p.m., he was standing near the village mosque and Mst. Nuran was going towards her house with a bundle of cotton on her head. Mst. Nasim, the daughter of the deceased was also following her. When Sher reached near the mosque, all of a sudden, from the northern side of the village, Gulzar, Naik Muhammad, Zaman, Khushi Muhammad and Sharaf all armed with fire‑arms came to the spot. Gulzar shouted that they had come to kill Mst. Nuran. He fired a shot which hit her face. She fell down. Naik Muhammad caused an injury on the back side of her head by firing from his gun. Zaman wounded her left arm by firing. Khushi Muhammad and Sharaf had continuously been firing at the complainant party. Mst. Nasim, Farid and Riaz witnessed the occurrence. Motive was: that Nawab alias Magri son of Mst. Nuran teased Mst. Manzooran, a sister of Gulzar, accused. The accused, therefore, came to take revenge of the insult and as such executed their common object in committing the murder. Mst. Nuran was taken to Hospital at Qaboola in critical condition from where, on advice, she was shifted to Nishtar Hospital, Multan. The prosecution case was founded on the evidence of Muhammad Riaz P.W. 1, Mst. Nasim P.W. 2, Farid P.W. 3, Muhammad Akram P.W. 4, Muhammad Aslam, M.H.C. P.W. 5, Shafqat Ali F.C. P.W. 6, Ch. Abdul Hamid Inspector P.W. 7, Muhammad Boota, F.C. P.W. 8, Dr. Muhammad Sabir P.W. 9, Dr. Muhammad Aslam P.W. 10, Zahid Ali A.S.I. P.W. 11, Ghulam Rasul F.C. P:W. 12, Bahawal P.W. 13, Farooq Bhatti Draftsman P.W. 14 and Muhammad Afzal A.S.I. P.W.

15. The appellant denied the allegations in his statement under section 342 of the Code of Criminal Procedure pleading that he was innocent. However, no evidence was produced by him in his defence. His statement is as follows:‑

"I have been falsely implicated by the P.Ws.‑who are related inter se and also inimical to me so that I am not in a position to prosecute the case of my wife Manzooran. The present complainant party pressurised me to compromise the above said criminal case but I did not agree hence they involved me in the present case. Gulzar brother of my wife has already made detailed statement in this behalf. I adopt the same." On 4‑6‑1989, a learned Additional Sessions Judge, Sahiwal convicted Naik Muhammad under section 302, P.P.C. and sentenced him to death plus fine of Rs.10,000 or in default to undergo R.I. for three years. He was ordered to pay Rs.20,000 as compensation to the heirs of Mst. Nuran or in default to suffer R.I. for three years. Gulzar, Zaman, Sharaf and Khushi Muhammad, co accused of the appellant were acquitted by giving them benefit of doubt. The convict challenged his conviction and sentence through appeal which was dismissed by a learned Division Bench of the Lahore High Court on 17th of October, 1992. His sentence was, nonetheless, altered to imprisonment for life on the ground that he acted under the impulse of family honour. Sentence of fine and compensation was maintained. The sentence in default of payment of compensation was reduced from 3 years R.I. to six months R:I. Benefit of section 382‑B, Cr.P.C. was given to the appellant. Leave to appeal was granted with the following operative part of the order:‑ "The learned counsel for the petitioner inter alia contends that medical evidence on the record strongly militates against the ocular account giving rise to serious doubts regarding the veracity of the eye‑witnesses and that the evidence which was not accepted against the acquitted accused could not be relied upon against the petitioner." Learned counsel submits that there is no evidence on record to connect the appellant with the commission of crime. According to him, medical evidence does negate the ocular account. He argues that eye‑witnesses are related to the deceased and as such, cannot be relied upon. Learned State counsel supports the conviction and sentence of the appellant. We have heard the learned counsel for the parties. Record of the case was minutely gone through by us. There is force in the arguments of the learned counsel for the appellant for the reasons to be enumerated shortly. Gulzar, Sharaf, Zaman and Khushi Muhammad, co‑accused of the appellant were acquitted while disbelieving the evidence on which the appellant was convicted and sentenced by the Courts below. All the accused were armed with guns with which they killed Mst. Nuran. Testimony of Riaz, Mst. Nasim and Farid, the eye‑witnesses was not accepted to be worthy of reliance by the Trial Court in acquitting the abovenamed four accused. The accused were given effective roles in the commission of crime. In particular, Gulzar and Zaman accused injured the face and arm of the deceased by firing. According to Riaz P.W., in all, 12 to 14 shots were fired by the accused. Gulzar was stated to leave fired thrice while Zaman fired 4/5 shots. Similarly, other accused fired more than once. In this state of affairs, Trial Court was not competent to convict Naik Muhammad and acquit the remaining accused on the basis of same set of evidence keeping in view the principles of safe administration of criminal justice. He was handicapped to pickup the appellant alone from the accused in order to convict him on the evidence which was disbelieved qua the acquitted accused. It is in the evidence that all the accused were indiscriminately firing from a distance of more than 11 Karams and that, too, from behind the wall of a house at the complainant party. It would be difficult for the P.Ws. to pin point the assailant who gave the fatal blows to the deceased. In such an assembly of accused, unless and until it is proved beyond reasonable doubt that it was the appellant who killed the victim, it would not be possible or safe for the Trial Court to convict him. The evidence which was completely discarded being worthless to the, extent of acquitted accused, could not be held to be worthwhile in the same breath for using it for the conviction of the appellant unless it was corroborated by testimony ref unimpeachable character. Such evidence was not produced so as to call it a foolproof case for convicting the appellant. The above principle was upheld in a judgment, reported as Muhammad etc, v. The Crown (PLD 1954 F.C. 84). The august Court observed as follows:‑ "Upon examining the evidence as a whole by the standard adopted by the High Court, we are of opinion that the conviction of the present appellants on the charge of murder cannot be sustained as the existence of enmity had been clearly established by the prosecution evidence. We are further of opinion that where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case of that offence in the absence of any confirmatory circumstance." In a recent classic judgment rendered in the case of Ata Muhammad etc. v. The State (1995 SCMR 599), Muhammad Munir Khan, J. highlighted the controversy in the following words:‑ "So, the ocular evidence in his case has virtually been found not worth reliance so far as majority of the accused is concerned. The maxim `falsus in uno, falsus in omnibus', no doubt, has no universal application and that grain is to be sifted from chaff but it may not be possible in the case where the very P.W. on whose testimony conviction of an accused is maintained has earlier been held not to be worthy of credence so far as other accused charged with effective participation in the same occurrence was concerned. The acquittal of eight co‑accused, particularly of Nazir, would adversely reflect on the credibility of the eye‑witnesses. The acquittal of the eight co‑accused will also show that the eye‑witnesses were capable of implicating falsely innocent persons in the case or at least of exaggerating the number of the accused. The ocular evidence may be classified into three categories firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the instant case the deceased suffered one fire‑arm injury and Khizara suffered three fire‑arm wounds caused by 12‑bore gun. The possibility of three entry wounds caused by one shot from 12‑bore gun is very much there. The number of the injuries of the deceased and the P.W. does not commensurate with the number of the accused named by the eye‑witnesses. In view of the aforesaid infirmities in the ocular evidence we feel that in the instant case the testimony of the eye‑witnesses falls within the third category. Consequent to the above observations, the ocular evidence in this case cannot and should not be accepted unless substantially corroborated. So, in order to be satisfied that no innocent person is convicted we have decided to look for some additional evidence/circumstances giving support to the statements of the eye‑witnesses so as to create that degree of probabilities of the guilt of the appellants which can be made basis of safe conviction. We are fully conscious that for corroboration it is not necessary that there should be words of an independent witness supporting the statements of interested witnesses and that the same may be afforded by anything in the circumstances of case which may satisfy a reasonable and prudent mind that the witnesses have spoken truth while naming the individual accused. We have anxiously looked around for independent corroboration which could rehabilitate, repair and cure the damage done by the eye‑witnesses to their integrity and credibility by implicating ten members of the family out of whom eight have been acquitted but we have not been able to find out any reliable independent corroboration. The circumstances relied upon by the High Court as corroborative evidence, or the circumstances pointed out by the learned counsel for the State, do not constitute requisite independent corroboration." Lord Tucker dealt with somewhat identical situation in case of Muhammad Faiz Bakhsh v. The Queen (PLD 1959 PC 24) observing:‑‑

"Their credibility cannot be treated as divisible and accepted against one and rejected against the other. Their honesty having been shown to be open to question it cannot be right to accept their verdict against one and re‑open it in the case of the other. Their Lordships are accordingly of opinion that a new Trial should have been ordered in both cases. It remains only to say that their Lordships are in complete agreement with the view expressed by the Court of Criminal Appeal with regard to the criticisms which were made, and which have been repeated before the Board, of the Trial Judge's summoning up with respect to the onus of proof in connection with the defence of alibi. Taking the summing up as a whole the jury could have been left in no doubt that the onus remained on the prosecution throughout to establish the guilt of the accused." In the light of above case‑law, the appellant was entitled to be given benefit of doubt because prosecution evidence in this case did not appear to be divisible creditwise for the purpose of rejecting it against the acquitted accused and accepting the same for the appellant to convict him. It may be seen that medical evidence is not in, line with the ocular account. Dr. Muhammad Sabir P.W. 9 who examined Mst. Nuran (deceased) on 10th of October, 1987, found six injuries on her person. The doctor opined that injuries Nos. 1 and 3 were independent while injuries Nos. 2, 4, 5 and 6 were the resultant injuries. In other words, as per medical evidence, it would mean that only two shots were fired whereas according to ocular account, 12/14 shots were fired by all the accused. To be more precise, there were only two fire‑arm injuries which were found on the deceased. Prosecution has failed to fix the responsibility of firing these fatal shots on the appellant by producing best possible oral or circumstantial evidence. Eye‑witnesses are inter‑related inasmuch as Mst. Nasim is the daughter of deceased. Ghulam Farid is father‑in‑law of Mst. Nasim. Riaz is her maternal cousin. In such a situation, the evidence of interested eye‑witnesses must have been corroborated by evidence of high quality which corroboration is missing. Prosecution case may also be looked into while keeping in view the site plan Exh.PE available at page 90 of the paper book. The accused were shown to be present at point No. 5 air. Mst. Nuran was present at point No.

1. The eye‑witnesses were standing at points Nos. 2, 3 and

4. Points Nos. 2 and 3 are situated inside the mosque. According to site plan and the eye‑witnesses' account, occurrence took place in front of the mosque. Place at point No. 5 could not be completely visible from points Nos.2 and 3 which have been shown to exist inside the mosque because of intervening walls. This being so, eye‑witnesses who were inside the mosque could not see the accused who were firing from behind the wall of house of Sadar Dire, Imam Masjid. The prosecution was required to have proved that the accused were visible to the witnesses 'although they were standing behind the wall. The P.Ws. are silent about this important aspect of the case. The prosecution case would, thus, become doubtful as a whole. Site plan is prepared by the Police in accordance with rule 25.33 of the Police Rules, 1934. It is useful to quote the rule which is as follows:‑

"25.33. On arrival at the place where the body of a deceased person is lying, the police officer making the investigation shall act as follows:‑ (1) He shall prevent the destruction of evidence as to the cause of death. (2) He shall prevent crowding around the body and the obliteration of footsteps. (3) He shall prevent unnecessary access to the body until the investigation is concluded. (4) He shall cover up footprints with suitable vessels so long as may be necessary. (5) He shall draw a correct plan of the scene of death including all features necessary (.o a right understanding of the case." The language of the rule shows that it is mandatory in its application. The site plan would, therefore, assume a special importance, particularly, in murder cases. In the circumstances, it could be concluded that the occurrence was not witnessed as claimed by the P.Ws. Prosecution did not succeed in proving its case beyond any shadow of doubt against the appellant. This appeal is accepted, conviction and sentence of the appellant is set aside and he shall be released forth‑with provided, of course, he is not needed in some other criminal case. These are the detailed reasons in support of our short order dated 10‑10‑1995. N.H.Q./N‑455/S Appeal accepted.