P L D 1969 Supreme Court 469 (PLP)

SAJJAD AHMAD, J.‑This is an appeal, by special leave, by one, Bashir Ahmad, who was injured and whose brother Rehmatullah was killed by gunshot injuries at peshin time on the 5th of May 1965, in Chak No. 472/G. B., Tehsil Samundari, District Lyallpur. Four persons, namely, Azam, his father Abdul Aziz, the latter's nephew Muhammad Akram and one, Bashir, were tried for these offences, viz., the murder of Rehmatullah (section 302/34, P. P. C.) and the murderous assault on Bashir Ahmad (section 307/34, P. P. C.) by the learned Additional Sessions Judge, Lyallpur, who convicted Azam on both the charges but acquitted the other accused. Azam was sentenced to death and to a fine of Rs. 500 or in default to two months' rigorous imprisonment on the murder charge, and to two years' rigorous imprisonment and a fine of Rs. 250, or in default one month's rigorous imprisonment, on the second charge. The State filed an appeal in the High Court (Criminal Appeal No. 866 of 1966), challenging the acquittal of the co‑accused of Azam and the latter, i. e., Azam, also filed an appeal against his con?victions and sentences (Criminal Appeal No. 551 of 1966). A Division Bench of the High Court dismissed the State appeal in limine on the 17th of May 1967. Another Division Bench of the High Court accepted the appeal of Azam and acquitted him on the 29th January 1968. Two petitions for special leave to appeal were filed in this Court: one (No. 99 of 1968) directed against the acquittal of Azam respondent and the other (No. 191 of 1967) against the decision of the High Court refusing to interfere with the acquittal of the other accused persons mentioned above. By an order dated the 10th of October 1968, leave was granted by this Court to reconsider the case of Azam, but the second petition against the other accused was ordered to remain pending till the disposal of the appeal against Muhammad Azam. The F. I. R. was lodged at 3‑45 p. m., within three hours of the occurrence, at the Samundari Police Station which is situated at a distance of six miles from the crime's spot. The first informant P. W. Abdul Majid, a maternal uncle of the deceased, who described himself as the eye‑witness, gave substantial details of the occurrence in the F. I. R. It is necessary to state them as there is a striking departure from them, in the case as later reconstructed at the trial, to appreciate the pivotal point raised in his argument by Mr. Manzur Qadir, the learned counsel for the respondent Azam, that none of the alleged eye‑witnesses had seen the occurrence , barring Bashir who was injured and rendered unconscious and speechless for three days thereafter and as the F. I. R. was made on a conjectural surmise charging the four accused persons, taking them to be the most probable assailants, the prosecution case had, of necessity, to be recons?tructed in order to adjust it with the circumstances that were revealed subsequently in the investigation. According to the account in the F. I. R., Abdul Majid P. W. was returning from his lands to his home in the village when at peshin time on the day of the occurrence he saw that near the house of one, Abdur Rahman Jat, his nephew Bashir was going on a cycle carrying a ketli in his hand towards his tubewell. Immediately, he saw the four accused mentioned above following Bashir Ahmad, Azam armed with a gun, Akram and Bashir with pistols and Aziz with a danda. Aziz shouted a lalkara that Bashir be killed on which Azam fired a shot with his gun hitting Bashir on both his thighs. Bashir fell down. Abdul Majid raised an outcry on which P. W. Abdur Rahman son of Fateh Muhammad arrived who also saw the occurrence. In the mean?while, the four assailants returned towards the village. He and Abdur Rahman P. W. carried Bashir to the courtyard of the house of Abdur Rahman Jat mentioned above. Leaving him to the care of Abdur Rahman son of Fateh Muhammad, P. W. Abdul Majid ran towards his own house and saw the deceased Rehmatullah Lambardar coming from in front. Seeing the deceased, the accused turned their attention to him and after a lalkara that he should also be killed, Azam fired a shot at him which struck him in his buttocks. Akram and Basbir also fired shots with their pistols to scare away the people from coming near. Abdul Majid continued raising hue and cry which attracted Rashid and Yousuf, P. Ws. to the spot. Before repairing to the Police Station, Majid with the help of other co‑villagers had removed Bashir to the Hospital at Samundari. The motive was also mentioned in the F. I. R., which was the embitterment caused between the parties by a contest over a B. D. election between deceased Rehmatullah and Ch. Muhammad Siddiq, Pleader, a brother‑in‑law of accused Aziz. This had ended in the victory of Muhammad Siddiq but three days later, it led to a fight between Rehmatullah deceased and his party on the one side and the party of the accused on the other. One Shamsul Hayat, a son of Muhammad Siddiq and a nephew of Abdul Aziz, was injured in that fight for which a case was lodged against the accused party, including Majid, Bashir and Yousuf, P. Ws. The departure from the events given in the F. I. R. from those as stated at the trial, consists in two main particulars. Firstly, the venue of the attack on Bashir Ahmad P. W. has been completely shifted and secondly, there is a glaring variation in regard to how and in what circumstances the eye‑witnesses saw both parts of the occurrence, i.e., firing on Bashir Ahmad followed by that on the deceased Rehmatullah. It will be noticed that in the F. I. R. the scene of firing at Bashir Ahmad P. W. was laid near the house of Abdur Rahman Jat, denoted at Point No. 5 in the Site Plan Exh. P H./2. According to the same version, P. W. Abdul Majid and P. W. Abdur Rahman who arrived at the spot on the outcry of Abdul Majid, had carried Bashir Ahmad inside the house of Abdur Rahman aforesaid. According to the story as related at the trial, Bashir was fired at, at Point No. 1 in the Site Plan which is in the lane near the house of one, Abdul Majid son of Aziz, at a distance of about 280 feet from Point No.

5. It was alleged that the accused at the time of this firing were near the ihata of Ismail, which is situated immediately opposite to that of Abdul Majid aforesaid, in the same street. The need for this change in the venue of the occurrence arose because during investigation P. W. 15, S. I. Manzoor‑ul‑Haq, picked up blood‑stained earth from the wall of that house and also found 42 pellets stuck up in the same wall. Blood‑stained earth was also found in the house of Abdur Rahman son of Rahim Bakhsh, where according to his own version, Bashir had taken shelter after being injured It seems that a shot was fired in the direction of the house of Abdur Rahman son of Rahim Bakhsh also, because at one point in the lane near it, a basket of bangles belonging to one, Muhammad Sadiq, was produced before the Sub‑Inspector on the 3rd day of the occurrence. Sadiq aforesaid was not examined as a witness, although he was cited as such. He was given up by the Public Prosecutor because, allegedly, he had been won over by the defence. This change in the scene of occurrence furnished a legitimate premises for the argument of Mr. Manzur Qadir, that Bashir was found injured and unconscious in the house of Abdur Rahman by Abdul Majid and others who may have arrived there after learning about the occurrence. He referred to the statement of Bashir which he made before the Police in this connection and with which he was confronted at the trial, that when he had entered the house of Abdur Rahman, only Safia, wife of the said Abdur Rahman, was present and he asked her to inform his relatives in the house. If Abdul Majid or Abdur Rahman, or any other person, had really witnessed the firing on Bashir Ahmad which, according to the story as unfolded at the trial, was done in the lane near the house of Abdul Majid, Abdul Majid P. W. would not have mis‑stated the place of firing as the house of Abdur Rahman situated at a distance of 280 feet from the real place of firing. It may also be noted that the F.

1. R. was lodged not without delay and obviously not without exchange of notes between persons who were stated in the report as the witnesses of the occurrence. Confronted with this irreconcilable position, Abdul Majid F. W. was reduced to admit in his statement as follows:‑ "The place where Bashir was fired at and where the occurrence started is a totally different place from the one outside the house of Abdur Rahman son of Abdur Rahim which I have mentioned in the F. I. R. It is incorrect that the four accused had come from behind Bashir P. W. I have not stated in the F. I. R. that all of them had come from behind . . . .? I cannot give any explanation as to why there is such a difference between my statement in the F. I. R. and the statement in Court regarding the place of occurrence and the site from which the accused had first appeared . . . . " The second item of departure from the arrival and presence of eye‑witnesses person mentioned in the F. I. R. as 3 of firing on Bashir besides the first informant, is son of Fateh Muhammad, about whom it was said that he had come on the outcry of Abdul Majid. If he came on the outcry of Abdul Majid after the firing on Bashir as stated in the F. I. R, he could not have been an eye‑witness . of the actual firing. To cover this obvious infirmity it was tried to be explained differently by different witnesses. P. W. Abdul Majid stated in total variation of what he had said in the F. I. R. that Abdur Rahman at the time was coming behind him. Bashir P. W. deposed that he had seen both Abdul Majid and Abdur Rahman coming in the galli from the opposite direction where he was going on a cycle towards his tubewell. Abdur Rahman P. W. 12 toed the line of Abdul Majid by saying that he was just fol?lowing him. The other witness who had deposed about the firing on Bashir is Muhammad Yousuf, a brother‑in‑law of Bashir. He was not mentioned in the F. I. R. to have seen the firing on Bashir who is shown to be a witness of the firing on deceased Rehmatullah only, which took place in the thorough? fare in front of his house. He asserted that he had watched the firing on Bashir from the roof of his house where he had gone to bring down taramira and then going to the door of his kotha he saw the firing at the deceased. His presence at the roof in the blazing sun at that time to bring taramira, of which no circumstantial proof was available, has pertinently been doubted by the High Court. The three related witnesses, Bashir, Majid and Yasin happen to be the very same persons who were all involved in the assault case, on Shamsul Hayat, and if the motive on the part of the accused as alleged by the pro?secution, was to avenge that assault, there is no apparent reason why did the accused, who were armed with lethal weapons, spare them, if they were present, and confined their attack to Bashir and Rehmatullah. Mr. Mahmud Ali Kasuri, the learned counsel for the appellant, has criticized the judgment of the High Court on the ground that the evidence of two, independent persons, namely, Abdur Rahman and Bashir, has wrongly been discarded by the High Court treating it as the partisan evidence of relations. He has also submitted that the conclusion of the High Court that the ocular evidence conflicted with the medical evidence, was not correct. Abdur Rahman and Abdur Rashid P. Ws. are cousins inter se. It is true that they have denied their relationship with the deceased party and it does not stand proved from the record. One circumstance, however, goes to damage their independence on that basis. The defence tried to prove in the cross‑examination of these witnesses that they were nephews of Nur Muhammad who bad a daughter by name Mst. Basso who was the step‑mother of the deceased Rehmatullah. Abdur Rahman admitted that Nur Muhammad was his uncle, but P. W. Rashid, his cousin, who was equally related to Nur Muhammad, denied it. Abdur Rahman denied knowledge of his uncle Nur Muhammad having a daughter by name of Mst. Basso, step‑mother of the deceased. He went back on his statement before the Committing Magistrate that the mother of Col. Wali Muhammad, the step?brother of the deceased, belonged to his village. These may not be major contradictions to look at, but do leave an impression on the mind that the witnesses were suppressing the fact of their relationship with the deceased. But even if they are not relation witnesses, it does not mean that they are witnesses of truth. Ultimately, the acid test of the veracity of a witness is the inherent merit of his own statement. I have already referred to the discrepancies in the prosecution case as ~to how Abdur Rahman P. W. was attracted to the spot. About Rashid, the inconsistencies in his statement at various stages, as pointed out by the High Court, certainly detract from the merit of his evidence. According to his version, he was in the village mosque taking a bath when he heard two shots and it must have taken him some time to dress up and go out into the street. Although, he had heard the report of two shots while he was taking his bath in the mosque and which were the only two effective shots allegedly fired by Azam, it is curious that when he comes out he still saw with his eyes that Aziz gave a shout and Azam fired a shot. According to the prosecution case, it was after these two effective shots, the one on Bashir and the other on Rehmatullah deceased, that Akram and Bashir had fired shots in the air with their pistols to scare away the people from coming near them. The trial Judge gave the benefit of doubt to Aziz, Akram and Bashir, disbelieving the prosecution evidence as regards their alleged role, holding that their involvement was an appendage, as usual, in such cases. The High Court while noting in detail the discrepancies and weaknesses in the statement of the various witnesses, has referred to the following observations of this Court made in the case of Rehmat and others v. The State (P L D 1959 S C (Pak.) 109) at p. 118 :‑ "Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye‑witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde which may by itself suffice to show beyond reasonable doubt his implication in the crime." In the present case, specific parts were attributed to the acquitted accused, lalkara to Aziz, and pistol shots to Akram and Bashir, which have been disbelieved by the trial Judge. As for the conflict between the medical evidence and the ocular evidence, it may be noticed that the deceased Rehmat?ullah suffered a gunshot wound on the upper part of the back buttocks below iliac crest 2" x 2", direction downwards and towards right and an irregular wound ?" x ?" on middle of right buttock. Bashir had a gunshot wound 4" x 3" x 1" in front of left thigh in its middle, situated transverse and blood‑stained. Four pellets were removed from this injury. Close to injury No. 1 and on the outer side, there were four gunshot wounds and the pellets were lodged inside the tissues. There was another gunshot wound 2" x 1" x 1/8" in front of right thigh in its middle situated obliquely. Skin at the edges of the wound was scortched. Three gunshot pellets were removed from the injury. There were 32 gunshot wounds round injury No. 3, scattered close to its edges. Most pellets were lodged inside the tissues of the thigh. The learned Judges in the High Court have held that the injuries on Bashir Ahmad were the result of two shots, both caused from in front, which is not consistent with the prosecution case that the deceased was fired at by a parallel shot from the side when Bashir was going past the assailants riding on his bicycle. No effort was made at the trial to elucidate from the medical witness or the Ballistic Expert as to the number of shots fired or the direction of the shots, and the matter is left in the realm of conjectures. The story of the prosecution, however, seems incredulous that although four persons had waylaid Bashir Ahmad, one armed with a gun, two with pistols with plenty of ammunition, yet only one shot was fired at him in the region of his thighs and he was allowed to escape without any further attempt to harm him. The learned counsel for the appellant has contended force?fully that it was a day‑light occurrence in which Bashir Ahmad P. W. was seriously injured who had the full opportunity to recognize his assailants and there was no reason for him to substitute them by innocent persons. Assuming that he did recognize his assailant or assailants, although the firing at him having been done by someone from the side in the ihata of Ismail without being recognized as held by the High Court cannot be wholly discounted, the fact remains that Bashir Ahmad was rendered unconscious and was unable to speak till three days later on the 8th of May 1965. In the meanwhile, the prosecution case had already taken shape. The assailants and the manner of their attack had been mentioned in the F. I. R. and Bashir Ahmad on gaining consciousness had no alternative but to support the prosecution case, whether right or wrong, against the very persons who had been implicated by his uncle Abdul Majid in the F. I. R. A contrary or variant version by him would have destroyed the prosecution case. The ocular evidence, principally that of Abdul Majid and Abdur Rahman, does create a distrust in the mind that the story put forward is more conjectural than real. What appears to have happened very likely was that Bashir and Rehmatullah were both injured in one incident in the same location within a short distance of each other, but the incident has been split up into two stages with a doubtful sequence of events. It is difficult to believe that Abdul Majid P. W. after leaving his injured nephew in the house of Abdur Rahman Jat under the care of Abdur Rehman P. W., repaired to his own house and on the way saw Rahmatullah being confronted by the same set of persons who had assaulted Bashir, and repeating the same process of a lalkara by Aziz and a gunfire by Azam. Itis still more curious that although Abdur Rahman P. W. was charged to look after the injured Bashir, he left him unattended and somehow reached the scene of the attack on Rehmatullah and was able to see it. With regard to the ocular evidence, the position that emerges that the trial Judge has not believed it implicitly and the High Court on a more critical analysis, has rejected it outright as unworthy of credit. Some of its major features as discussed above create an element of distrust in its veracity. But even if it could be said that the appraisement of this evidence by the High Court is erroneous and another view favourable to the prosecution is possible, will it be a valid cause for interference by this Court in the acquittal of the respondents? The scope of interference by this Court in appeals against acquittals recorded by the High Court, was summed up by my Lord, the present Chief Justice, in the case of Siraj Din v. Kala and another (P L D 1964 S C 26) as follows:‑ " The principles, which have been consistently followed by this Court for justifying interference with orders of acquittals passed by the High Courts, have been clearly laid down in the cases of Lalu v. The State P L D 1959 S C (Pak.) 258 and Fateh Muhammad v. Bagoo and others. They seem to indicate that unless `it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported to acquit is at all supportable', this Court will be reluctant to interfere, even though upon the evidence on the record and the facts and circumstances of the case this Court might well have come to a different conclusion if it was trying the case." After a careful examination of the facts of this case, in the light of the dictum cited above, with which I most respectfully agree, I do not think that the acquittal of the respondents in this case merits interference. I would, therefore, dismiss this appeal as well as the petition for Special Leave to Appeal No. 191 of 1967. HAMOODUR RAHMAN, C. J.‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree. ABDUS SATTAR, J.‑I agree. M. R. KHAN, J.‑I agree. S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed