1989SCMR103 (PLP)

Ten years prior to the present occurrence, the deceased was charged and tried alongwith eight others for the murder of Asghar, but they were all acquitted. This, it was alleged, was the cause for the murder of the deceased. From the spot two crime‑empties of .32 bore and one crime‑empty of .12 bore were seized. However, the two crime‑empties of .32 bore did not match with the pistol produced by Khadim Hussain. The crime‑empty of .12 bore matched with the pistol produced by Ghulam Muhammad, but the trial Court did not, for the reasons given, accept this piece of evidence against him. Allah Wasaya also produced his hatchet two days after the incident at the Dera of Mian Ghulam Jilani his opponent. This piece of circumstantial evidence also did not weigh with the trial Court. The deceased had as many as 10 incised injuries and one fire‑arm injury on the upper part of his right chest and a bullet was extracted from the wound on his body. Ghulam Haider had a round gunshot injury of the size 1/4" x 1/4", on the left side of his face between the left ear and the left eye. The respondents denied any enmity for the reason of the earlier murder as they pleaded that they had compromised the affair and were on visiting terms. However, they stated that they were falsely implicated on account of elections. Allah Wasaya alleged against Mehar Hussain that he had contested the BD elections in 1965 against his lather and ;t was for that reason that he was falsely implicated by him in the F.I.R. He further added that Ghulani Jilani was his enemy. Ghulam Muhammad and Khadim Hussain, who are the collaterals of Allah Wasaya, also stated that they had been falsely implicated. Khadim Hussain pleaded that in the 1970 elections he had supported Ghulam Mustafa Khar who was opposed by Ghulam Jilani and his son Farooq Gurmani, and that, therefore, he was implicated at the instance of Ghulam Jilani. Ghulam Muhammad pleaded that he had no relationship with Allah Wasaya. The trial Court upon the appraisal of the testimony of Mehar Hussain (PW 8), Ghulam Haider (PW 9), Khair Muhammad (PW 10) and Ghulam Oasim (PW 11) reached the conclusion as under: "To conclude I find that the statements of the eye‑witnesses do inspire confidence. I have no reason to disbelieve the eye‑witnesses. The injury on the person of PW 9 Ghulam Haider affords valuable corroboration to the statements of the other eye‑witnesses mentioned above." As for the recoveries, as stated earlier, they were disbelieved by the trial Court. The seizure of the Chappals as said to belong to Ghulam Muhammad was also disbelieved as the trial Court not only disbelieved the evidence of the recovery witnesses, but also held that there was no evidence to affirmatively establish that they belonged to Ghulam Muhammad. In this view of the matter, the trial Court convicted Allah Wasaya and others under section 302, P.P.C. read with section 34, P.P.C. and sentenced him to death and the others to imprisonment for life. They were ordered to pay fine of Rs.2,000 each and also to pay compensation in the sum of Rs.1,000 each to the heirs of the deceased or to suffer imprisonment in lieu thereof. In regard to the fire‑arm injury on Ghulam Haider, the trial Court held that it was not the result of a murderous assault but that it only intended to scare away the injured witness and the others. The trial Court, therefore, convicted all of them under section 324/34, P.P.C. and sentenced each of them to six months rigorous imprisonment. The High Court agreed with the trial Court in so far as the discarding of the recovery evidence is concerned. However, it also gave an added reason that the sending of the crime‑empty and the .12 bore pistol together to the expert was itself a highly suspicious circumstance. While evaluating the evidence, the High Court was doubtful as to the manner in which the occurrence is said to have taken place, and, therefore, the High Court doubted not only the presence of Mehar Hussain but also the other eye‑witnesses. The High Court noticed several improbabilities in the evidence of the eye‑witnesses which are: If, at all, Mehar Hussain was in need of a tractor he could have borrowed it from Ghulam Jilani who owned two tractors and whose Kardar he was rather than from the deceased. This feature alongwith the manner in which the assault was mounted on the deceased did not appeal to reason. The injury on Ghulam Haider was not X‑rayed nor any pellet was found embedded in the wound. This coupled with the admission of the Doctor that the pellet did not cause the fracture of the bone, led the Court to hold that the wound could only be a "graze" and an injury of a minor nature considering its size and that, therefore, it was difficult to exclude the possibility of its being self‑inflicted. The other factor also kept in view was that the shot having been fired from a distance of five karams, the other witnesses who were together could not have escaped being injured due to the spreading of the pellets. The version of Ghulam Harder as to his having become unconscious on receiving the injury and that further his clothes got blood‑stained due to the blood spurting out from the injury was held to be unsustainable as factually he was found only wearing an underwear and that his injury being so trivial that it could not have rendered him unconscious. The High Court also noticed that Ghulam Haider failed to mention the presence of Mehar Hussain and the prosecution did not take any step to have it proved through him. The most crucial factor which led the High Court to disbelieve the manner in which the attack was launched was that if Allah Wasaya had opened the attack with his hatchet on the deceased causing no less than 10 injuries, then he would obviously have been hit by the shot fired by Khadim Hussain as the shot fired by him was from a distance and that he stood in the line of fire. This conclusion the High Court drew from the fact that the injury was described to be simple and skin‑deep without there being any blackening or charring around it and that there was no damage caused by the bullet which was extracted. There was also the feature that only one pistol shot was imputed to Khadim Hussain although two empty‑cases of .32 bore were found from the spot which did not fit in with the ocular testimony. Upon examining the evidence, we are of the view that it cannot be said that the High Court had wrongly evaluated the evidence. Mehar Hussain lived about a mile and a half away from the place of occurrence at Chah Nawan Noor Shahwala and owned one square of land which he himself cultivated through his servants. Obviously, therefore, his presence at the spot could only be evaluated from the reason given by him for being there and that was that as his land was getting dried he wanted to have the tractor immediately. In the context of the availability of the tractor from Ghulam Jilani whose Kamdar he was it was more probable that he would have approached him rather than the deceased whose tractor was at that point of time being used for ploughing the fields at Chain Manakwala situate at a distance of about a mile from Chah Harewala. There was, I therefore, nothing wrong for the High Court to hold that the reason given by him for being present at the spot was not plausible. His version as to Khadim Hussain having fired a shot from a distance of five karams is also inconsistent with the injury found on the deceased. And not only this he supported the version that Ghulam Muhammad fired his pistol at Ghulam Haider who suffered a pellet injury; that he kept standing and that his injury having bled also soiled his clothes. While on the other hand it did not conform to the account furnished by Ghulam Haider who stated that he became unconscious on receiving the injury and factually it was found that he did not wear any clothes except an underwear, which could get soiled with blood spurting out from the injury. The fire‑arm injury itself on Ghulam Haider appears to be highly doubtful not only for the reason that if a shot was fired from a close range only one pellet would have hit him but also for the reason that even if a pellet had struck him from a close distance the result would not have been the same as that found from its examination. According to the Doctor the wound was not fresh and that he was unable to say whether the edges of the wound were everted or inverted. No serious effort was also made to get him X‑rayed although there was an Arrangement for X‑ray in the hospital. The Doctor was unable to say whether any medical aid was given to him when he came to the hospital for examination. This being, so, it is not possible to conclude that it was the result of the pellet having struck Ghulam Haider as a result of the shot fired by Ghulam Muhammad, and it was, therefore, that the High Court held that if, at all, it was a pellet injury then it must have been self‑suffered. All this not only recoils on his credibility but also on the credibility of Ghulam Haider and the other prosecution witnesses. The fire arm injury being trivial, as it was, Ghulam Haider deliberately falsified that he had become unconscious on receiving it, and that if, at all, he had himself advanced to rescue the deceased, he would have not only suffered one injury but many others if the shot was aimed at him. Obviously, his version is not truthful and that an attempt was made to establish his presence from the fact that he had suffered an injury in the transaction. The other witnesses have also supported his version and they cannot be rated any higher than Ghulam Haider and Mehar Hussain. The shot alleged to have been fired by Khadim Hussain, in our view, was fired from a distance and not after the deceased had received hatchet injuries. Only one shot was imputed to Khadim Hussain and the extra crime‑empty has not been explained. Therefore, the presence of the eye‑witnesses, in the facts and circumstances of the case, appears to be highly improbable. The High Court in this context has entertained a doubt as to the manner in which the assault was mounted on the deceased and, therefore, it is a case where it cannot be said that the High Court could not conclude as it did on the evidence as it stands in the absence of any corroboratory evidence to establish the participation of any of the respondents. Accordingly, we find no merit in the appeal which is dismissed. Ghulam Muhammad was on bail. His bail bonds stand discharged; and the others, who were in custody, should be released forthwith unless required in other case. M.A.K./M‑636/S Appeal dismissed.