1999 P Cr (PLP)

Apart from motive the question of timings are also very important while independent witnesses stated that the time when the bus stopped at Karampur diversion was about 2‑30 p.m. or 3‑00 p.m. the other witnesses have given time as 4‑30 p.m. and the same time is given in the F.I.R. It may further be pertinent to note that the police had come late to the scene of incident and the statement of bus conductor and other witnesses were recorded the next day. The most glaring contradictions are in the statement of Gohram and Abdul Majeed which are as follows:‑‑ P.W. Gohram P.W. Abdul Majeed (1) This P.W. states that police with the complainant reached at the place of Wardat after 2‑1/2 hours page No. 125. (1) This witness says that police came at the place of Wardat after 1 or 1/2 hours page No.154. (2) As per this witness the incident has taken place at 4‑30 p.m. page124.??????? (2) As per this witness the incident had taken place page about 3‑30 p.m. No. 153. (3) This witness says that police had not recorded my statements at the place of Wardat and says my statement was later on recorded by police at Khanpur Police Station. Page No. 125. (3) This witness states that my statement was recorded by police at the place of Wardat and also police recorded the statement of P.W. Gohram at the place of Wardat. Pages Nos.155 to 157. (4) This witness says that two persons boarded in the Bus and fired at the deceased. These two persons were Hafeezullah and Arbab. On page No. 127. (4) This witness says that two accused persons fired from outside the Bus. While four other accused fired after entering into the bus. (5) This witness says some of the bus passengers were known to us Page No. 127. (5) This witness states that no passenger was known, to me. Page No.

155. This witness further says that so many passengers saw the incident but did not enquire from us as to who were the culprits and most of them were known to the culprits. (6) We had some work at Shikar Pur which I cannot disclose page No. 126. (6) We were coming to Shikar Pur on the day of incident for entertainment page No. 156. (7) Accused had fired at deceased persons from a distance of about 10 to 15 paces. Page No. 121. (7) The accused fired upon the deceased persons from distance of 30 to 40 paces. Page No. 157. (8) It is correct that accused Muhammad Ameen is Nekmard and elderly person of his tribe. (8) It is incorrect to suggest that Muhammad Ameen is Nekmard of the community page No. 156. (9) It is also correct that the above named four persons were challaned in a case under section 302, P.P.C. and accused Bukhso was complainant and accused Muhammad Ameen was a Mashir in that case. Page No. 128. (9) It is incorrect to suggest that accused Bukhso was complainant in murder case in which abovenamed three persons were challaned. It is not in my knowledge that in that case accused Muhammad Ameen was Mashir. page No.256. ??????????????????????????????????? ? All these facts go against the prosecution. The principle laid down in the case of E Habibullah v. The State PLD 1969 SC 127 that "where a motive is alleged and the same is found to be false, such evidence of the witnesses must be scrutinized) fully" and further "false statement cannot become true merely by its consistent or constant repetitions" is fully applicable in the present case. Reliance can also be placed on the case of Fakir Muhammad and 7 others v. The State 1985 PCr.LJ page 530, wherein a murder had taken place inside a bus but during the evidence neither the conductor nor the driver had implicated the accused persons the complainant had also reached the scene after the incident, while the accused had already run away, and he improved his status to that of an eye‑witness. It was held that "in a case where testimony of two eye‑witnesses is not conflicting with the testimony of natural witness like bus driver and conductor, to recovery of weapons in the case was rightly rejected by the trial Court". In the case of Salim Khan and another v. The State 1998 PCr.LJ 990, it was held that 'where ocular account of occurrence was inconsistent and contradictory and was not supported by the site plan, motive set forth in the F.I.R. was not established, medical evidence also did not support the prosecution version as regards time of occurrence also observed in the same case that "once prosecution has set up a motive for commission of offence, same is required to be established by it, otherwise it will adversely affect the credibility of the eye‑witnesses". In the case of A. K. M. Reza and others v. The State PLD 1958 Dacca 111 relying on the case of Moinuddin SK and others v. Crown it was held that "the failure by the prosecution to examine the Investigating Officer deprives the defence of their valuable right of opportunity of shaking the credit of the prosecution witnesses by bringing out the contradiction between the:: statements to the police during investigation and their evidence in Court. Such a serious defect cannot be cured by a direction to the jury that they are to make strong presumption against the prosecution on account of the omission". The same principle can be followed and enunciated in the instant case. The entire record confirms that the witnesses including the Investigating Officer and the complainant avoided service of process and as such were finally given up. The very fact that the Investigating Officer and the complainant were not examined by the prosecution the entire proceedings of the case and the evidence there on can be discarded and any conviction on such evidence is illegal and liable ought to be set aside. In the case of Allah Rakha v. The State 1985 SCMR 453, it was held that "the approach of the High Court regarding the witness appearing from either side against other not to be depended upon without independent corroboration, was undoubtedly salutary and, thus, unexceptionable. We may further add that the enmity between appellant and his step‑brothers was not only on account of serious proverbial property dispute of step‑brothers having different mothers; but also as accepted by Abdul Khaliq P.W. himself it involved serious criminal cases. In one of them (three years prior to the occurrence) the two eye‑witnesses and the deceased were prosecuted for an offence under section 302/34, P.P.C. on the behest of the appellant. If that could be so it is not unimaginable that this time the other party having opportunity of falsely implicating the appellant in more serious criminal case might have done so. Thus, agreeing with the learned Judge of the High Court we affirm their decision in the circumstances of this case, in so far as the need for strong corroboration is concerned". In the instant case; the independent witnesses do not implicate the appellants. Gohram has given motive as land dispute while the appellant have claimed motive as enmity because most of them were witnesses/complainants in pending cases against the complainant, deceased persons and their tribe Noonari. The evidence on which the learned trial Court has relied was recorded after a period of 21 years and that, too, is that of interested witness. In the absence of the evidence of Investigation Officer and the complainant, non‑corroboration of medical evidence as according to the Medical Officer the wound were that of gun or rifle while recovery of weapons were shot guns, absence of Ballistic Expert's Report, inadequate evidence in regard to the allegedly snatched gun no explanation as to why private Mashirs were not associated, are the glaring facts indicating that the prosecution has failed to prove its case beyond reasonable doubt. In the circumstances, the contention of the learned counsel for the complainant that it is wrong to say that the prosecution failed to prove its case beyond reasonable doubt, has no force. The statement of the appellant was recorded who denied the charges against them as false. On the question as to why P.Ws. had deposed against them one of them stated that P.Ws. are caste‑fellows of the deceased but the others have not deposed against him. According to him, he was innocent and should be acquitted. Similar statement was of Muhammad Amin, and Bakhshal alias Bakhshan while denying the charges as false stated that P. Ws. have deposed against him as they are related to the deceased and that the complainant involved him in this case due to enmity. So also is the case of Arbab who denied that any shotgun was recovered from him, according to him he has been involved as he had deposed in a murder case against Noonaris. Evidence of Muhammad Ishaque is important being an independent witness. He clearly stated that he identified the persons who had fired at the deceased. Then he stated that no one identified the deceased persons till the bus came from Shikarpur and some of the passengers identified them. Had Abdul Majid, Ghuram and complainant accompanied the deceased, this situation would not have arisen. No reason is given as to why this independent witness would give a wrong statement. In view of above discussion the learned trial Court was wrong in discarding the evidence of the independent witnesses and relying merely on the evidence of two interested witnesses in passing the sentence. Next is point No.2, as framed by the learned trial Court. Admittedly, the snatched gun was not recovered. There is hardly any corroborative evidence on record except the statement of Abdul Majid and Ghuram. The learned A.A.‑G. had rightly contended that in the absence of corroborative evidence and failure of prosecution to recover the same the accused cannot be punished for the crime under section 395, P.P.C. In view of the entire discussion on point No. 1 and lack of corroborative evidence, the finding given by the learned trial Court is not sustainable and the same is set aside. In the light of the above discussion, the possibility that the accused/ appellants have committed the murder of the two deceased Muhammad Hayat and Abdul Jabbar, has not been proved by the prosecution beyond reasonable doubt. As a result, the appeal is accepted and conviction and sentences are set aside and all the appellants are acquitted. They shall be released forthwith if not required to be detained in any other case. NJ‑I.Q./K‑64/K????????? Appeal accepted.