P L D 1979 Lahore 888 (PLP)

AFTAB FARRUKH, J.-Nawab son of Siraj Din, Gulzar son of Nawab, and Siraj Din son of Fateh Muhammad, appellants, along with Munshi Khan son of Ghulam Nabi and Hanif son of Suleman (acquitted co-accused) and Ghulam Hussain alias Chhotu (who died during the pendency of trial) were tried in the Court of Malik Abdul Majid Tiwana, Sessions Judge, Gujranwala, for the murder of Muhammad Shafiq. Nawab and Gulzar have been convicted under section 302/34, P. P. C. and sentenced to death, while Siraj Din has been convicted for the same offence and sentenced to life imprisonment. However, Hanif and Munshi Khan have been acquitted by the learned trial Court. The case of Nawab and Gulzar has been referred to this Court under section 374, Cr. P. C. for the confirmation of death sentence, whereas all the three convicts have preferred Cr. A. No. 888 of 1978. Both the matters are being disposed of together by this judgment.

2. The occurrence took place on 10-6-1966 at 7-30 p.m. on the road between Eminabad Mor and Eminabad Town near Chah Tahliwala at a distance of about 100 yards from Police Post, Eminabad and seven miles away from Police Station, Kamoke, District Gujranwala. Statement (Exh. P. A.) of Wali Muhammad (P. W. 3) was recorded on the same day, i.e. 10.6-1966 by Ghulam Hussain Head Constable at Police Post, Eminabad. Formal F.

1. R. (Exh. P. A./1) was recorded at Police Station Kamoke at 9.15 p. m:,the same day by Saeed Ahmad Muharrir Head Constable (P. W. 7). It may be mentioned here that during the investigation and at the trial three more persons, namely, Nawab appellant and Munshi Khan and Hanif (acquitted co-accused) were implicated by the prosecution as accused and challaned and tried. The complainant side are all Rajputs, whereas the appellants side are all Dogars and this is an established fact as stated by Fateh Muhammad A. S. I. (P. W. 13) that there is a long-standing enmity between the two clans.

3. The case for the prosecution, as stated in the F. I. R., briefly stated, is that the relations between Rajputs and Dogars were highly strained since a considerable time. About 10/11 months prior to the occurrence a theft was committed in the house of complainant Wali Muhammad (P. W. 3). Suspicion was cast on the Dogars and they were associated in investigation by the C. I. A. Police, Gujranwala, but no recovery could be effected, About 10/15 days prior to the occurrence Muhammad Shafiq deceased informed his father Wali Muhammad (P. W. 3) that Dogars were saying that they were weak, whereas the complainant party was powerful, therefore, the matter be settled in brotherhood and not by referring the case for investigation to C. I. A., Lahore. The complainant party did not care for it and continued their efforts for having the investigation transferred to C. I. A., Lahore and this led to the incident. At about 7-30 p. m. on 10-6-1966, Muhammad Shafiq deceased was returning on cycle from Eminabad Mor. He was accompanied by Abdul Majid (P. W. 1) and Chiragh Khan (P. W. 2) who had met him en route. When they reached near Daira Wadhaya Shah, Gulzar appellant and Ghulam Hussain alias Chhotu (deceased accused) armed with hatchets and Siraj Din appellant armed with a sota were present there. The three of them stopped Muhammad Shafiq deceased, got him down from the cycle and started inflicting blows with hatchets. On alarm raised by Muhammad Shafiq deceased, Abdul Majid (P. W. 1) and Chiragh Khan (P. W. 2), who were nearby, reached the spot. Siraj Din appellant raised a lalkara that he should not be spared, whereupon Siraj Din snatched the revolver which was with Muhammad Shafiq deceased. Siraj Din started firing in the air holding out threats that whoever came near will be killed. After inflicting injuries to Muhammad Sbafiq deceased and throwing the revolver at the spot the three of them ran towards their dera. Abdul Majid (P. W. 1) informed complainant Wali Muhammad (P. W. 3) at his residence, while Chiragh Khan (P. W. 2) carried the injured Muhammad Sbafiq to the Hospital at Eminabad in the tonga of Allah Ditta Kumhar. Muhammad Shafiq breathed his last on reaching the hospital. Nawab was arrested by Qazi Ghulam Rabbani S. H. O. Police Station, Kamoke (P. W. 14) on 6-7-1966, and Hanif accused was arrested by him on 10-7-1966. Gulzar, Siraj Din and Ghulam Husain alias Chhotu (since dead) were arrested by Fateh Muhammad A. S. I. (P. W. 13) on 14-6-1966, while Munshi Khan accused was arrested by Inayat Ullah A. S. I. (P. W. 8) on 27.6-1966. On 11-6-1966, Fateh Muhammad A. S. I. (P. W. 13) following the trail of blood starting from the place of occurrence searched the house of Siraj Din appellant and recovered the blood-stained danda (Exh. P. 12) and took the same into possession vide Memo. Exh. P. G. This recovery was attested by Shamshad Ali Khan (P. W. 4) and Abdul Rashid Khan (who is alleged to have been murdered meanwhile by the opposite-party) besides Fateh Muhammad A. S. I. (P. W. 13). Ghulam Husain alias Chhotu (since dead) led to the recovery of bloodstained hatchet (Exh. P. 19) which was taken into possession vide Memo. Exh. P. I. on 18-6-1966. This recovery Memo. was attested by Fazal Muhammad (P. W. 9) Fateh Muhammad A. S. I. (P. W. 13) and Muhammad Nazir (given up P. W.). According to the Serologist's report (Exh. P. 11) scrapping from danda (Exh. P. 12) were found to be stained with human blood. The learned trial Court for cogent reasons given in paragraph 43 appearing on page 103 of the High Court Paper Book has not relied upon the recoveries. We are in agreement with the reasoning given by the learned trial Court.

4. Dr.

2. A. Kaukab P. W. on 11-6-1966 at 10-30 a.m. performed the post-mortem examination on the dead body of Muhammad Shafiq and found the following injuries on it :- (1) A cut wound on upper lip extending to the right cheek cutting the lip completely and teeth including portion of the jaw and left mandible bone near the angle of the mouth and also cutting the tip of the nose. (2) An incised wound 1 ? " x ?" x muscle deep vertically on right cheek near the ear. (3) An incised wound 3" x 1/8" on left side of neck just below the ear. (4) An incised wound 3 ? " x 1/2" x bone deep on posterior part of left parietal eminence. Piece of the bone had been chopped off. (5) A cut wound 3 ?" x 1 ? " bone deep on lower part of occipital bone in its middle. The bone was fractured and the brain tissue was naked and cut. (6). An incised wound 2 ?" x 1 ?"?? x bone deep on right occipital region cutting the bone. (7) An incised wound 2'' x 1'' on back of left shoulder, fracturing scapula bone. (8) An incised wound 3'' x 1/8" transverse in direction just below injury No. 7. (9) An incised wound 1' x ? '' x 1/2" just inner to injury No. 8. (10) An incised wound 1' x ? '' x ? '' just above injury No. 7. (11) A lacerated wound 1/40 in diameter, margins black on the back of left shoulder region 4' outer to the midline and 5' above the lower angle of scapula bone. (12) A black spot in midline on back of chest at lower dorsum region. (13) A black spot ? '' x ? '', 2" outer to injury No. 12. (14) A lacerated wound ? '' in diameter, 6'' outer to midline on lower part of front of chest on right side and its outer aspect. (15) A lacerated wound ? '' in diameter on front of left chest 2J' below the nipple and 1'' outer to the midline, margins inverted. (16) An incised wound 4'' x 1/6'' on upper part of right upper arm in its outer aspect. (17) An incised wound 1 ? '' x ?'' x bone deep on outer part of right frontal area. (18) A cut wound on back of right neck 2'' x 1'' x muscle deep. In the opinion of the doctor death resulted due to head injuries under injuries Nos. 5 and

6. Injuries Nos. 11 to 15 were caused by a fire-arm, while the rest were caused by a sharp-edged weapon. Injuries Nos. 5 and 6 were sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate, while between death and post-mortem examination it was 12 to 18 hours.

5. The appellants have denied the prosecution case. Their denial is simpliciter and they attribute their implication due to long-standing enmity. Nawab appellant when asked to explain his injury on hand, did not admit it to have been suffered during the course of the incident. The appellants examined in defence D. W. 1 Dr. Muhammad Hafeez.

6. As we have mentioned above, the recoveries have been disbelieved by the learned trial Court for cogent reasons and we are in agreement with him on this finding. The case for the prosecution rests entirely on the ocular testimony which is furnished by Abdul Majid (P. W. 1) and Chiragh Khan (P. W. 2) both of whom are Rajputs. The defence alleges that both of them are related to the complainant Wali Muhammad (P. W. 3). Chiragh Khan (P. W. 2) has refuted the allegation of being a relation, but as far as Abdul Majid (P. W. 1) is concerned, he is connected quite closely. Ramzan, maternal uncle of complainant Wali Muhammad, has two sons by the names of Mustafa and Haider. They are married to the daughter of Hassan Muhammad, real brother of Abdul Majid (P. W. 1).

7. Some time during the investigation, second part of the incident was introduced and the same is the case for the prosecution at the trial. The second part of the incident introduced later on is to the effect that the deceased Muhammad Shafiq ran towards Eminabad village and from the other side, i. e. Eminabad he was met by Munshi Khan, Hanif and Nawab within 14 paces and they injured Muhammad Shafiq deceased and thereafter they dragged his dead body and threw it in a khatan from where apparently Chiragh Khan (P. W. 2) picked him up and carried him to Eminabad when on the way Wali Muhammad (P. W. 3) and Abdul Majid (P. W. 1) met him and they all proceeded to the hospital where Muhammad Shafiq expired. We are not satisfied about the presence of the eye-witnesses. Chiragh Khan (P. W. 2) was declared hostile by the prosecution and it is only Abdul Majid (P. W. 1) who has supported the case for the prosecution. The complainant received the information about the incident from Abdul Majid (P. W.' 1) who was an eye-witness and the F. I. R. brings out the following salient features : (i) That Abdul Majid (P. W. 1) gave the full eye-witness account of the whole transaction to complainant Wali. Muhammad (P. W. 3); (ii) Wali Muhammad (P. W. 3) and Abdul Majid (P. W. 1) met Chiragh Khan (P. W. 2) and the injured before the latter two reached the hospital ; (iii) the F. I. R. was lodged thereafter, i. e. after meeting even the second eye-witness; (iv) the F. I. R. mentions only three persons, namely, Gulzar, Siraj Din and Ghulam Husain alias Chhotu as the assailants and reference to only the three assailants is again and again in the F. I. R. ; (v) Siraj Din is attributed shots in the air by revolver/pistol snatched from Muhammad Shafiq deceased and there is no allegation of any firing being made on the deceased ; and (vi) that the transaction concluded as one transaction and there is no reference in it to the second part which has been introduced subsequently and is to the effect that the deceased ran towards Eminabad and from the other side, i.e. Eminabad he was met by Munshi, Hanif and Nawab within 14 paces and they injured Muhammad Shafiq deceased and thereafter they dragged his dead body and threw it in a kathan from where apparently Chiragh (P. W. 2) picked up and carried him to Eminabad when on the way Wali Muhammad (P. W. 3) and Abdul Majid (P. W. 1) met him and they all proceeded towards the hospital where the deceased expired. The entries in the various columns of inquest report are in line with the F. I. R. In the summary of facts incorporated in the F. I. R., there is neither any mention of the second part of the transaction referred to above, nor the names of Munshi, Hanif and Nawab accused are mentioned, nor any allegation is mentioned that the deceased was fired upon and he was bit by the bullets. As a matter of fact, in the relevant column the nature of injuries is described to be by a sharp-edged weapon. It appears that it was for the first time on the next day when the post-mortem examination was performed that the prosecution learnt it to its horror that out of 18 injuries, injuries Nos. 11 to 15 were caused by a fire-arm and as many as three bullets were recovered from the dead body. Injuries Nos. 1 to 10 and 13 to 18 were by a sharp-edged weapon and that there was no sota injury. Therefore the learned counsel for the appellants is quite justified in arguing that thereafter the prosecution gave a turn to their story and introduced the second part of the incident implicating three more accused and in order to explain the fire-arm injuries on the person of the deceased they introduced the story of Siraj Din firing upon the deceased being further cognizant of the inherent weakness in their case, they dragged the case to a Jirga for trial. The learned counsel for the appellants has explained that the only reason for Ghulam Husain alias Chhotu and Siraj Din being named in the F.

1. R. even though occurrence was unwitnessed, is that Siraj Din filed a habeas corpus petition in the High Court in respect of the illegal detention of Ghulam Hussain alias Chhotu and Gulzar who were recovered by a Bailiff of this Court. Therefore, in order to regularise and out of spite in a hurry the police named the two detenus as well as the applicant Siraj Din in the F. I. R. We cannot rule out this possibility. The learned counsel for the defence has maintained that Muhammad Shafiq has met his fate in an unwitnessed occurrence during dark hours late in the evening and the complainant party on the discovery of the dead body named the appellants on account of the long-standing enmity and introduced a totally false story and evidence. We would not accept this contention as being the gospel truth, but at the same time in view of the glaring conflict between the medical evidence and the ocular version as given during the earlier stage of investigation, the possibility of the incident being unwitnessed and having taken place during the dark hours of the evening cannot be ruled out. We agree with the learned counsel that if the eye-witnesses were present at the scene of murder and they had in fact seen the incident, they could possibly have not missed to notice the firing on the deceased and the complainant could possibly have not missed this aspect, nor he would have omitted to mention Munshi Hanif and Nawab as the assailants or the second part of the incident. Nothing has been suggested to persuade us that Fateh Muhammad A. S. I. (P. W. 13) had any interest in Munshi, Hanif or Nawab at that early stage so as not to mention their names in the F. I. R. We cannot accept the explanation that at the time of reading over the F. I. R. to Wali Muhammad complainant (P. W. 3) he noticed the omission of these names, informed Fateh Muhammad A. S. I. (P. W. 13) and that he immediately recorded the supplementary statement which also gave the second part of the incident, the fact that Siraj Din accused fired at the deceased even though in the F. I. R. it had been specifically mentioned that he gave a danda blow which hit the cycle, as well as the allegation that he snatched the revolver/pistol from the deceased and thereafter fired in the air in order to keep the interveners at bay. This explanation is not worthy of even a consideration in view of the below quoted extracts from the testimony of Ghulam Husain Head Constable (P. W. 12) : "It was correctly recorded by me, but when I read out its contents to him, he told me that he had mentioned the names of six accused, while I had written the names of three accused therein. Thereupon, I recorded his supplementary statement. Wali Muhammad P. W. has signed the statement E xh. P. A. In the instant case, I recorded the police proceedings at the foot of Exh P. A. but there is no mention of Wali Muhammad P. W. having objected to the contents of his statement, This is correct that at the end of his statement it is written ? BAAYAN SUN LIY HAY DRUST HAY? Below this phrase, there are signatures of Wali Muhammad P. W. This is correct that in the police proceedings recorded by me at the end of the statement of Wali Muhammad P. W. it is written that Wall Muhammad in presence of Abdul Razzaq Khan and Abdul Rashid Khan, Members of Town Committee, Eminabad, came to Police Post Eminabad and made the above statement which has been recorded and read out to him and he admitted it as correct, signed under it and I attest the same. This is correct that after writing the aforesaid statement and proceedings, I issued a copy thereof to Wali Muhammad P. W. and obtained his signatures. This fact is also mentioned in police proceedings. I??? did not record his supplementary statement there. I did not record his supplementary statement at the Police Post because I was in hurry to go to the Civil Dispensary in order to prepare the inquest report and injury statement of the deceased. The dead body was lying there. In the brief statement of facts appended to the inquest report, I mentioned the names of three accused, namely, Siraj, Gulzar and Ghulam Hussain. I recorded this brief statement at the instance of Wali Muhammad P. W. This is correct that in column No. 12 of the inquest report, I had written that there were injuries caused by sharp-edged weapon on the dead body . . . . . Majid Khan and Chiragh P. Ws. were also present when I prepared the inquest report. This is correct that in the injury statement Exh. P. N. I have not mentioned the weapon of offence." The above quotations prove beyond shadows of doubt that the prosecu. tion was not aware of the injuries on the person of Muhammad Shafiq deceased until the stage of preparation of the inquest report and that no supplementary statement either of the complainant or that of the other eye-witness Abdul Majid or for that matter statement of anyone else giving an explanation for the firearm injuries had been recorded. The inquest report would naturally have been prepared next morning at the time of the despatch of the dead body to the mortuary and had it been prepared soon after the recording of the F. I. R., the dead body having been despatched on the morning of the next day, the police would have certainly rectified the error or prepared a new inquest. It appears that on finding the dead body in a khatan a little bit off the main road, the complainant party identified the injuries as having been suffered by some sharp-edged weapon and set up the story in accordance with that. The learned trial Court for cogent reasons has disbelieved the story of Fateh Muhammad A. S. I. (P. W. 13) regarding following the trail of blood to the house of Siraj Din appellant and recovering blood as well as blood-stained danda (Exh. P. 12) from there. We are satisfied that supplementary statements/161 statements of the P. Ws. were recorded some time after the post-mortem examination to bring the case in line with the medical evidence and there would have been no necessity of the same if the eyewitnesses had in fact seen the incident. The mere fact that a witness or an eye-witness is apparently disinterested would not be sufficient for maintaining a conviction on a capital charge. The analysis of the plethora of the case-law reveals that if the testimony of a disinterested witnes is coherent and plausible and does not suffer from any material infirmity then his deposition surely stands on a higher pedestal' and a conviction can also be based on his uncorroborated testimony. But if such a witness is contradicted by some material circumstance or his' deposition is in conflict with the medical evidence or the same suffers from any inherent incongruity or that the same does not have the ring of truth around it, then the mere fact of such a witness being disinterested cannot be given such an overriding effect so as to make the Court ignore all the material infirmities and contradictions from which his testimony suffers. Disinterestedness can only lend extra strength to an otherwise reliable piece of evidence, but cannot be assigned the status of such a stamp of reliability so as to purge his deposition of all material flaws. As indicated above, the question of such a conflict with the medical evidence would not have arisen if the eye-witnesses had been present at the scene of incident. We are afraid, we cannot maintain the conviction of the appellants on the argument of the learned counsel for the complainant as well as the learned counsel for the State that Abdul Majid (P. W. 1) was independent and that Abdul Majid as well as Chiragh Khan P. Ws. had explained the second part of the incident and the injuries by gunshots in their statements recorded under section 161, Cr. P. C. We have already observed that Abdul Majid (P. W. 1) is closely related to the complainant Wali Muhammad (P. W. 3) as two daughters of his real brother are married to the two sons of maternal-uncle of Wali Muhammad complainant. In this view of the matter, the prosecution has failed to establish its case against the appellants beyond reasonable shadows of doubt. Giving them the benefit of doubt, we allow the appeal, set aside the conviction and sentences of Nawab, Gulzar and Siraj Din appellants and acquit them. They shall be set at liberty forthwith if not wanted in any other case. M. A. R.????????? Appeal accepted.