1990 SCMR 62 (PLP)

margins on the right side of head 1/4" above the ear. It was going into the skull and brain anteriorly, horizontally and towards the medial side within the wound of exit of injury No.l (that is on the right side of fore‑head). Echymosis was on both the eyes upper and lower side. Blood was oozing from the wound. Both these injuries were dangerous to life and were caused by fire arms 12 hours. Allah Bakhsh son of Dost Muhammad (deceased) (i) A fire arm wound 1/3" circumference, muscle deep on the mid left of occipital area. It was with inflamed margins and punctured margins. (ii) A punctured fire arm wound 1/3" circumference with inverted and inflamed‑.margins on the mid of left cheek. It was going forward and backward and backward slightly upward to the brain cavity, with a wound of exit 1/2" circumference on the left side of skull half inch anterior to the injury No.l. The skull was fractured, and full of blood. Fracture was of left parietal bone. The membrane and brain matter was injured along the way of injury No.l. The thorax were healthy. The contents of the abdomen were also healthy, the stomach had about half pound of semi digested food. The small intestine also had semi digested food and was full of it. The large intestine was healthy and empty. The bladder contained half ounce of urine. There was fracture of left cheek bone, fracture of left orbital bone, fracture of base of skull and vault. The probable time between injuries and death was immediate and between death and post mortem examination was 18 to 24 hours. Both the injuries were with fire arm. Injury No.l was declared simple and injury No. 2 dangerous to life. This injury, according to opinion of the doctor was sufficient to cause death in ordinary course of nature. And the death was due to injury to brain caused by injury No.2. Mehdi Khan, injured (PW) (i) A puctured fire arm wound oval in shape 1/2" x 1/3" with inverted and inflamed margins on the postro‑inner side of right thigh, 5" above the right knee joint. 1t was going downward forward without wound of exit. (ii) An incised wound 2" x 1‑1/2" x 1" on the back and upper part of right thigh. Mark on the chaddar corresponds to the injury. Injury No.1 was by fire arm while injury No.2 was by sharp edged weapon. Both these injuries were inflicted within 6 to 12 hours. These were declared simple." At the trial, the prosecution sought to prove the charges against the accused by the eye‑witnesses' account of Muhammad Khan (PW‑11), Mehdi Khan (PW‑12) and Muhammad Ashraf (PW‑13). In his statement Muhammad Khan while fully supporting the case of prosecution stated that the accused while armed with deadly weapons opened fire at the complainant party after the attack was initiated by Bashir Ullah accused. The death version was materially supported by the injured eye‑witness Mehdi Khan (PW‑12) and Muhammad Ashraf (PW‑13). The accused in their statement under Section 342 of the Code denied the prosecution allegations and pleaded false implication due to previous enmity. The learned trial Judge, however, believed the eye‑witnesses and held all the accused who were tried by him guilty of the charges levelled against them and awarded various sentences. In so far as the appellant Bashir Ullah was concerned he was awarded death sentence and a fine of Rs.10,000 under section 302/149, P.P.C. and 10 years' R.I. and fine of Rs.10,000 under section 134 and two years' R.I. under section

148. Muhammad Afsar appellant was awarded the same sentences while Muhammad Bashir was awarded life imprisonment and fine of Rs.10,000 udner section 302/149, P.P.C. and also life imprisonment and fine of Rs.5,000 under section 307 and two years' R.I. under section 148, P.P.C. On appeal and in murder reference, learned Judges in the High Court on re‑appraisal of the evidence held as under: "We have given our anxious thought to the evidence brought on record as well as he arguments addressed by the learned counsel for the parties and we have come to the conclusion that so far as Muhammad Nazar son of Khan Beg, Muhammad Sarwar son of Raja Khan, Muhammad Afzal son of Fateh Sher, Khan Beg son of Shamas Din, Ahmad Khan son of Sher Khan, Muhammad Iqbal son of Gul Muhammad, Sikandar Khan son of Nadir Khan, Gulab Khan son of Allah Ditta, and Chaudhary son of Qaim Din are concerned, the prosecution has failed to prove its case against them beyond any reasonable doubt. To begin with, the only evidence produced by the prosecution against these nine appellants is that they were armed with the weapons as referred to above, but they fired ineffectively at the spot. They did not cause any injuries to the two deceased, nor to the injured Mehdi Khan (P.W.12). We have scrutinized the evidence of Muhammad Khan (P.W.11),, Mehdi Khan (PW.12) and Muhammad Ashraf (P.W.1.3) and we are satisfied that there is no evidence whatsoever to connect these nine appellants with the commission of murder. According to the prosecution version, these appellants were armed with deadly weapons and if they had come at the spot to commit the murder and they had brought with them the deadly weapons like .12 bore guns and 7 MM rifles, they could very well commit the murder by firing with their weapons upon the complainant party. However, they did not cause any injuries to the deceased or the injured PW. It may be noted here that the charge against Muhammad Na7ar was that he fired at Mehdi Khan (P.W.12) which hit him on his leg. However, the medical evidence has wholly belied this ocular account of the prosecution case. The second injury on the person of Mehdi Khan P.W, is an incised wound which has been caused by a sharp‑edged weapon and decidedly not by a firearm. Thus, even against this appellant there is no evidence. This shows that the participation of these nine appellants in the commission of crime is highly doubtful. We are of the view that they have been implicated in the case by the complainant party falsely. By giving them the benefit of doubt, we set aside their convictions and sentences and proceed to acquit there. They shall be released from the prison forthwith if not required in any other criminal case." So for as the three appellants were concerned, learned Judges were of the following view: "We find from the overwhelming prosecution evidence that the remaining appellants, namely, Bashirullah, Muhammad Afsar and Muhammad Bashir have rightly been convicted under section 302/34, P.P.C. We have considered very anxiously the arguments addressed by learned counsel for the appellants and we do not find any substance in their arguments. The presence of the eye‑witnesses cannot be doubted for the simple reason that at least the presence of Mehdi Khan (P.W.12) has adequately been admitted by the defence while conducting the cross examination of the witnesses. Additionally, Medhi Khan P.W. is an injured witness in the case lie saw the whole occurrence with his own eyes and has supported the prosecution version in its minor details. The defence has wholly failed to bring out anything on record to disbelieve or to discredit his evidence. He is the star witness in the case. His evidence has further been supported by the statements of Muhammad Khan and Muhammad Ashraf P.Ws. Learned counsel for the appellants submitted that since the motive part of the prosecution story has been disbelieved, as such, the entire evidence of the prosecution should be discarded. We do not agree with the learned counsel for the appellants for the reason that motive is not always needed to prove a case of murder against the a accused Persons. Motive is a corroborative piece of evidence, but the whole structure of the prosecution case is not always raised upon the motive atone. In this case we fired that motive was rightly discarded because there was no direct evidence to prove the motive as set up by the prosecution. Even without motive, the prosecution has successfully proved its case of murder against Bashirullah, and Muhammad Afsar appellants. It is established that these appellants were armed with deadly weapons and they used those deadly weapons and as a result thereof they killed Allah Bakhsh Son of Dost Muhammad and Allah Bakhsh son of Ghulam Muhammad. There is no corroboration to the eye‑witness account of the prosecution case. Leaned counsel stated that recoveries the weapons of offence have also been disbelieved by the trial Court and, therefore, there is no corroboration to the eye‑witness account, and as such, they should be disbelieved. We do not agree with the learned counsel for the appellants. Again the recoveries are not necessary in all the cases to prove the commission of offence against the accused persons. The conviction of appellants Bashirullah. Muhammad Afsar and Muhammad Bashir appellants under section 302/34, P.P.C. on two counts and under section 307/34, P.P.C. are maintained. However, the death sentence awarded to Bashirullah and Muhammad Afsar appellants is altered to life imprisonment for the reason that there was no immediate motive established by the prosecution to commit the murders and whatever motive was set up by the prosecution, has been discarded by the learned trial Court. Therefore, in our view, life imprisonment shall meet the ends of justice in the case of Bashirullah and Muhammad Afsar appellants. Their death sentences are not confirmed." Leave to appeal was granted by this Court in order to consider the contention raised on behalf of the appellants that the convictions of the appellants, in view of the conclusions reached by the. High Court that nine co accused were falsely implicated and the motive alleged by the prosecution was false, are not based on sound principles of administration of criminal justice. In this connection, it was also pointed that Allah Bakhsh son of Dost Muhammad (deceased) suffered two firearms injuries and according to the doctor's opinion none of them could be caused by the pellets fired from a shot‑gun. Nonetheless, the three witnesses implicated Bashirullah for having caused one of the injuries by firing a gun at him. Similarly, the three eye‑witnesses ascribed to Nazar Muhammad, who has since been acquitted, the part for having caused fire‑arm injury on Mehdi Khan on his leg which was found to be an incised injury. In the state of such evidence, therefore, it was found necessary for this Court to re appraise the entire prosecution case. Mr. Ijaz Hussain Batalvi, learned counsel appearing for the appellants referred to the evidence of three eye‑witnesses Muhammad Khan, Mehdi Khan and Muhammad Ashraf in support of the plea that all these having been held to be false witnesses so far as nine co‑accused are concerned ought not be believed on the serious charge of murders so far as the appellants are concerned. Learned counsel pointed out from their evidence that the weapon ascribed to Bashir Ullah appellant was a .12 bore double barrel gun, and he is said to have fired twice on Allah Bakhsh son of Dost Muhammad one after the other, but according to medical evidence none of the two injuries found on the person of that deceased was due to a fire from a shot gun. Learned counsel also pointed out from evidence of this witness that his presence on the site is open to serious doubts for the reason that, on his own showing in the cross‑examination, his house was being constructed by the workmen at the relevant time and he had himself admitted that he had gone to the house of Muhammad Ashraf PW without even being called by him. Learned counsel further pointed out that this witness had previous enmity with Bashir Ullah appellant, for, he had admitted in his cross‑examination that Bashir Ullah appellant had got the case of the murder of one Ahmad Khan and another registered against Rustam Khan and others and there are two factions in our village, one of Bashir Ullah and the other of Rustam Khan on account of enmities arising out of murders etc. As regards Mehdi Khan, learned counsel pointed out that the learned trial Judge had himself recorded the demeanour of this witness during the cross-examination when he was reluctant to answer question whether two persons were murdered in his village and Bashir Ullah had got the case registered. It was after series of questions that he finally admitted that Rustam Khan, Zaman were the accused persons in the case got registered by Bashir Ullah and both were convicted in that case. In this connection, learned Judge recorded the demeanour of the witness as under: "The witness is not answering questions in a straightforward manner. He tries to avoid the straight answers, by becoming a Yamlah. He was asked the question as to whether he knew that two persons were murdered in Lilla and one of them was a cobbler but his answer was that he did not know because he was away to District Sargodha when those murders had taken place. It only meant he knew that murder had been committed when he was away. He was therefore asked the question as to whose murders were committed when he was away. This question had been answered by him after having been asked in various ways for about 10 times. The witness has been directed to be straight in his replies in Court." As regards the third eye‑witness, Muhammad Ashraf, learned counsel also pointed out various fatal contradictions including certain assertions made by the witness which are contrary to the medical evidence. After having gone through the record of the case, we find no escape from the conclusion that the three eye‑witnesses produced by the prosecution in support of the serious charges levelled against the appellants are totally unreliable witnesses. Their testimonies having been found to be false as against the nine co- accused, could not lend assurance of truth as against the appellants, without independent corroboration. None of the kind exists. On the contrary the motive assigned by them for the commission of the crime has also been disbelieved as false. We find it difficult to comprehend how on such a state of evidence proved on record, learned Judges of the High Court were assured of the guilt of the appellants on the serious charges of murder, beyond reasonable doubt. We are clearly of the view that the appellants are as much entitled to the benefit of doubt as was granted by the High Court to the co‑accused and for these reasons this appeal must succeed. In result the convictions and the sentences recorded against the appellants are set aside and they shall forthwith be set at liberty, unless required in some other case. M.A.K./B‑126/S Appeal accepted.