1969 PLP 302 (SCMR)

Dates of hearing : 11th and 12th March 1969. SAJJAD AHMAD, J.‑This is an appeal, as of right, by Abdul Hamid who was acquitted by the learned Additional Sessions Judge, Multan (Camp Muzaffargarh) of the murder of one Munir Ahmad, but was convicted on a State Appeal by the High Court of West Pakistan, Lahore and sentenced to transportation for life and a fine of Rs. 10,000 to be paid as compensation to the heirs of the deceased under section 544 (a) of the Cr. Procedure Code. The appellant who was 19 years old at the time of the occurrence, belongs to a leading Zimindar family of Jatoi Shamali, which was headed by his father, Sardar Nasarullah Khan, who died about 3 years before the occurrence. The deceased Munir Ahmad who was in the same age group, studying in the 9th class was a son of P. W. Khair Muhammad who was a barber and a kameen of the family of the appellant. According to the prosecution case the appellant bad developed unnatural relations with the deceased who was a catamite and was using him for immoral purposes. Sometimes before the occurrence, the deceased, on the persuation of his father had deserted the appellant to the latter's grave annoyance, which apparently led to this gruesome tragedy. At sunset time, on the 29th of October 1964, Munir Abroad was playing volley‑ball with several others ranged on either side in opposite teams, including P. W. Ch. Sardar Ahmad, A. S.

1. The father of the deceased P. W. Khair Muhammad and his cousin P. W. Abdul Majid were also there as spectators. The appellant suddenly appeared on the scene armed with a shot gun and fired at Munir Ahmad from a distance of 12 karams, killing him on the spot. The occurrence was reported by P. W. Khair Muhammad within a few minutes at 5‑35 p. m. at Police Station Jatoi, which is situated at a distance of one furlong from the place of occurrence. The appellant fled away from the spot after firing ‑the shot and went to the shop of P. W. Ch. Muhammad Bashir, a retired Sub‑Inspector of Police, who has stated that the appellant came to him armed with a shot gun and informed him that he had killed Munir and asked for his help. Bashir made him over to the Police along with the gun, licensed in the appellant's name, which contained an empty cartridge in one of its barrels. The gun and the empty cartridges were later sent to the Ballistic Export who was unable to express an opinion for want of adequate impressions, as to whether or not the empty cartridge had been fired from the gun of the appellant. The autopsy on the dead body of the deceased revealed that he had received 8 gun shot wounds, each of which was 1/2" in diameter, of a circular shape, except No. 3, which was a cross wound, of which entry and exit were both visible through the skin of inner-side of left arm. The injuries were spread out over an area of 1 1/2 feet, from a point outside the left nipple down to the upper part of the left buttock. From the size of the pallets, recovered from the dead body, the medical witness P. W. Dr. Abdul Rashid was of the opinion that they were S. G. Pallets of which there are nine in an ordinary S. G. cartridge. The ocular evidence in the case was furnished by P. Ws. Khair Muhammad, Abdul Majid and Sardar Ahmad mentioned above. This is corroborated by P. W. Ch. Muhammad Bashir, who, as mentioned above deposed to the extra‑judicial confession of the appellant made before him and the production of the appellant by him before the Police alongwith the shot gun. All the three eye‑witnesses stated that they heard one shot of the gun fire, saw the deceased falling down and immediately saw Abdul Hamid, appellant with a double‑barrel gun in his hand, running away from the spot. Abdul Majid had seen the appellant's back when he was running away, but he could not fail to recognize him as he was well‑known to him. Ch. Sardar Ahmad who was then stationed as an A. S. I., C. I. A. at Jatoi, was one of the persons playing Volley‑ball. He searched for the appellant after a pause of about 10 minutes, but was unable to find him. The learned trial Judge has rejected the evidence of all these three witnesses, of the first two namely, Khair Muhammad and Abdul Majid because of their close relationship with the deceased and of the third P. W. Ch. Sardar Ahmad, because "he was a Police Officer, who was also alleged to be partly responsible for this tragedy." There is apparently no basis for the latter adverse comment on P. W. Sardar Ahmad of being a partly responsible for this tragedy except perhaps the suggestion put to him in cross‑examination, which he denied that he also had an attachment with the deceased which estranged him from the appellant. The learned Sessions Judge has also disbelieved his version that he had chased the appellant after the incident for about one and a half hours without finding him. The Learned Sessions Judge thought that he had set up the story to save himself from possible aspersions for his failure as a Police Officer to prevent the escape of the offender who had committed the murder before his very eyes. The statement of Ch. Bashir Ahmad P. W. was also disbelieved by the learned Sessions Judge, because he was shown to be under an obligation to Nazar Muhammad, the step‑brother of the appellant, who according to the defence was responsible for falsely involving the appellant in this murder on account of a dispute and litigation over a large chunck of land, which was given to the appellant by his late father, over and above his normal share of inheritance. Ch. Bashir Ahmad was indebted to Nazar Muhammad as he had helped his brother Gul Sher in a B. D. Election. Two other factors which weighed with the learned trial Judge in acquitting the appellant were :‑ (i) that the injuries on the person of the deceased indicated more than one shot whereas the eye‑witnesses alleged a single shot, and (ii) that there is a variation in the statements of the witnesses as regards the actual time of the occurrence. The High Court has observed that the reasons given by the Learned trial Judge for disbelieving P. Ws. Khair Muhammad and Abdul Majid, are neither sound nor substantial and they were perverse for the rejection of the statement of P. W. Sardar Muhammad. After carefully examining the entire evidence and the elaborate arguments addressed at the Bar by Mr. M. Saleem, the learned counsel for the appellant, we are inclined to agree with the High Court that in recording the acquittal of the appellant, the learned Sessions Judge has misjudged the evidence on erroneous considerations which has led to a miscarriage of justice. The statement of a witness should not be disbelieved merely because, he is related to the complainant party unless it is further shown that he has been actuated by enmity and maliice to falsely implicate an accused person. In the last analysis a statement of a witness has to be adjudged on its own intrinsic merit in the light of all the relevant factors, external and internal to judge its varacity. In the present case, P. Ws. Khair Muhammad and Abdul Majid, who are kameens of the village could not have had the audacity to falsely accuse the appellant for murder, who held an important position in the village as a Member of the leading Zimindar family. There was no reason whatsoever for a false substitution of the real culprit whose identity could not be in doubt. The charge was promptly made against tine appellant a short-while after the occurrence. The report which was made by P. W. Khair Muhammad at the Police Station at 5:35 p.m., contained all the relevant particulars of the incident including the names of the persons, who had witnessed the occurrence. The incident took place when there was sufficient light, which is apparent from the fact that the Volley‑ball game was still in progress. According to the calendar the sun had set at Jatoi on that day at 5‑29 p. m. The variation in the tinning of the occurrence as given by the witnesses was due to their usual vague ideas about the exact time. P. Ws. Khair Muhammad and Abdul Majid, who lived in close vicinity of the Volley‑ball ground were watching the game and there was nothing unusual in this. P. W. Sardar Ahmad a Police Officer who lived earthy and who was a regular Volley‑ball player, is an absolutely independent and disinterested witness. He supports the presence,, of P. Ws. Khair Muhammad and Abdul Majid on the spot at the time of occurrence. In our view his testimony was wrongly ruled out by the learned trial Judge, merely, because, he may have falsely introduced the story of his pursuit of the appellant after the incident just to show off that he had not neglected his duties as a Police Officer. Mr. Saleem contended that the testimony of Sardar Ahmad should be rejected outright because off the falsity of this part of this statement as found by the Courts below. It is now a well‑settled principle of appraisement of evidence in criminal cases in this country that the Courts below have to sift the evidence to find truth front falsehood. The statement of a witness shall not be thrown out, merely because, it suffers from falsehood in some unimportant particulars, provided it is found to be true and acceptable in the main and essential parts. In the present case there was hardly any need for the false introduction of P. W. Ch. Bashir Ahmad, a Retired Sub‑Inspector of Police to prove the extra‑judicial confession of the appellant. Assuming that Nazar Muhammad the step‑brother of the appellant was his enemy of which there is no substantial proof on the record, it seems too much to believe that Ch. Bashir Ahmad, who is a respectable Retired Police Official, played into the hands of Nazar Muhammad to involve the appellant falsely on a capital charge merely because Nazar Muhammad had helped his brother in a B. D. Election. The view of the learned trial Judge that the injuries on the person of the deceased denoted 2 shots and not one as stated by the witnesses, is again based on a more surmise. The medical witness had very definitely stated that all the injuries were the result of one shot and no effort was made to contradict him on that point. It may be noted that all the injuries on the deceased are on the left side of his body, which in all probability were caused by a side shot. The spread of the shots on the body to the extent of one and a half feel, dimension is quite in accord with the firing of the shot, from a distance of 66 ft. as stated by the witnesses. In any case there was no need for the prosecution to minimize the number of shots as the report of the shots fired could not have been missed by persons round about even if they did not see as to how many had effectively hit the deceased. The fact that they speak only of one snot which is not in-consistent with the number of injuries suffered by the deceased, enhances the weight and credibility of their statements. In our view the High Court was quite right in reversing the acquittal of the appellant as recorded by the learned Sessions Judge and in convicting him for the murder of Munir Ahmad. It was a dastardly murder committed in cold blood and the appellant is lucky in escaping the extreme penalty, which the High Court did not think proper to impose on him, because a period of more than 3 years had elapsed between the murder and the time when the State appeal against his acquittal came up for disposal before the High Court. The appeal is dismissed. Appeal dismissed.