1993 PLP 1602 (SCMR)

Raja Abdul Ghafoor, Assistant Advocate‑General, Punjab for the State: Date of hearing: 9th March, 1993. SAJJAD ALI SHAH, J.‑‑‑This appeal with leave of the Court is directed against judgment dated 17‑11‑1991 of Lahore High Court, Lahore, whereby conviction of appellants under section 302/34, P.P.C. And their sentence of death is upheld, reference for confirmation of death sentence accepted and Revision of complainant against acquittal of co‑accused Muhammad Abbas is dismissed.

2. Briefly stated the relevant facts are that on 22‑8‑1985 at 2‑30 p.m. Nasir Mahmood son of complainant Faiz Ahmad gave beating to Muhammad Ali nephew of appellant Muhammad Iqbal, who were separated on intervention of villagers. On the complaint of Muhammad Ali, at about 3‑30 p.m. both appellants armed with .12 bore guns and acquitted co‑accused Muhammad Abbas armed with revolver came to the spot and from there both appellants went on the roof of the house of Muhammad Kassim, while Muhammad Abbas remained in the street. Abbas fired in the air, which brought out Hidayatullah and Muhammad Akram from the house of complainant. Iqbal fired at Akram and Ilyas fired at Hidayatullah from the roof and both of them became injured and died at the spot. Incident was seen by three eye‑witnesses namely complainant Faiz Ahmad, Abdullah and Muhammad Aslam. Complainant went to the Police Station Sangla Hill and lodged F.I.R. on the same day at 5‑30 p.m. Distance between police station and the spot is about four miles. SHO Inayat Ali Shah after recording report came to the place of occurrence and commenced investigation. He noticed two dead bodies, prepared injury statements and inquest reports and sent them to the hospital for post‑mortem examination. Due to darkness, he inspected the spot on the following day and recovered four crime empties from the roof of the house of Muhammad Kassim. He received two bottles from the hospital containing pellets and sent empties and pellets to the Ballistic Expert.

3. Appellant Iqbal and acquitted co‑accused Abbas were arrested on 11‑9‑1985 by S.I. Abdul Ghafoor. Appellant Ilyas was arrested on 18‑6‑1986 by S.I. Muhammad Ashraf. Guns recovered from both appellants were sent to the Ballistic Expert, while revolver of Abbas was not sent. Report of Ballistic Expert is positive in respect of gun of appellant Iqbal to the extent that one crime empty matched with it. In the trial Court, prosecution examined 17 witnesses in support of its case. Two eye‑witnesses P.W. 1 complainant Faiz Ahmad and P.W. 14 Muhammad Abdullah were examined. Third eye‑witness Aslam was given up as unnecessary. P.W. 7 Nasir Mahmood is examined on motive. He described in detail how and why he had administered beating to Muhammad Ali on whose complaint, attack was made resulting into murder of two persons. P.W.1 is Dr. Muhammad Rafiq Choudhary who conducted post‑mortem examination of two dead bodies. According to him, deceased Muhammad Akram had sustained 9 injuries out of which eight were caused by fire‑arm and he recovered one pellet from the body Deceased Hidayatullah had sustained 4 injuries caused by fire‑arm. He took out two pellets from the body. Both died due to shock and hemorrhage owing to fire‑arm injuries. Other witnesses are of formal nature and include police officials, who took part in the investigation. In their statements under section 342, Cr.P.C. appellants denied prosecution allegation and proclaimed innocence and false implication due to enmity. They declined to give evidence on oath.

4. After evaluation of evidence trial Court discarded report of Ballistic Expert on the ground of missing link in the evidence of handling of parcels by persons between points of recovery and delivery at the laboratory. Trial Court also did not use evidence on the factum of abscondence of appellant Ilyas for the purpose of corroboration but was satisfied that direct evidence was corroborated by medical evidence and seizure of blood‑stained earth and empties. Trial Court recorded conviction of both appellants and sentenced them to death and fine of Rs.25,000 on each count and in default of fine to suffer R.I. for 2 years. Trial Court acquitted co‑accused Muhammad Abbas by giving him benefit of doubt. During hearing of appeal, High Court rejected contentions raised on behalf of appellants including the one that there is conflict between ocular evidence and medical evidence and finally dismissed appeal upholding conviction and sentence of death awarded to the appellants.

5. Leave is granted by this Court to examine the evidence from point of view whether there is corroboration available to support evidence of two eye‑witnesses who pre related to the deceased particularly when there is conflict between ocular and medical evidence on the question of distance of firing. According to the doctor, scorching was found on entry wounds of deceased persons, while on the other hand eye‑witnesses positively asserted that firing was made from the roof of the house.

6. We have heard at length Mr. Aftab Farrukh Sr. ASC for appellants and Raja Abdul Ghafoor, A.A.‑G. Punjab. We feel obliged to appraise evidence with greater care and caution for the reason that on the basis of same evidence co‑accused Abbas has been given benefit of doubt and acquitted. Evidence of the same two eye‑witnesses produced in the trial Court was not considered as sufficient and attempt was made to look for corroboration, which was not available as allegation against that co‑accused was that he remained in the street and fired in the air, which attracted and brought out two deceased persons, who were fired upon by appellants from the roof of the house. Prosecution alleged that acquitted co‑accused fired at witnesses but they were not hit and in such circumstances incriminating corroborative evidence to connect was not available resulting in extension of doubt and acquittal.

7. Admittedly both eye‑witnesses examined in the trial Court are related to the deceased persons. P.W.11 complainant Faiz Ahmad has deposed that deceased Hidayatullah and the other eye‑witness P.W.14 Abdullah brothers inter se are sons of his paternal aunt. Deceased Akram was son of Abdullah, who lived away at a distance of 35/40 Karams from the spot. Deceased persons and Abdullah had come to the house of complainant to inform him about quarrel between his son Nasir and Muhammad Ali. Relations between complainant and appellants were not congenial in the least and there was background showing enmity and unpleasantness. Complainant admitted in his cross‑examination that he was a prosecution witness against appellant Ilyas, who was accused in an abduction case in which he was finally acquitted. Complainant further stated that he did not remember that he was prosecution witness in a hurt‑case registered against Ilyas at the instance of Hidayatullah. He however remembered that there were two versions of the incident, one filed at the instance of Ilyas against Hidayatullah and the other against Ilyas and others at the instance of Hidayatullah. Complainant also remembered that he was accused in the earlier case and voluntarily stated that both the cases were compromised. Complainant further denied the suggestion that he dishonestly did not disclose his enmity against Ilyas in the first information report. P.W. 14 Muhammad Abdullah denied in his cross‑examination that he appeared as a witness against Ilyas in a case under section 307, P.P.C. He claimed to have appeared in defence of Ilyas in the Military Court in the case with charge of beating a Polling Officer. In such background the evidence of these two eve‑witnesses is to be subjected to deep scrutiny with extra care and caution.

8. Now there are very serious infirmities and defects attached with direct evidence, which are hard to explain and‑ cast considerable doubt on the claim of these witnesses to have seen the incident. Firstly there is sufficient delay in filing of F.I.R. Incident took place at 3‑30 p.m. and report was registered at 5‑30 p.m. when distance between spot and police station is stated to be 4 miles. Complainant claims to have gone straight to the police station on a bicycle and reached there within half an hour. His F.I.R. was immediately recorded and after that police went to the spot in a jeep and motor‑car while complainant went on cycle. He further stated that police might have reached the spot within half an hour. In such circumstances delay of two hours for police to reach the spot is not satisfactorily explained. .

9. Secondly even if it is assumed that police reached the spot at 6 p.m. as claimed, then why spot inspection could not be carried out and crime empties recovered on the first day. Explanation of I.O. P.W.15 Syed Inayat Ali Shah is not satisfactory that after reaching the spot at 6 p.m. he prepared injury statements and inquest reports and by that time it became so dark that he could not inspect the spot and carry investigation further. Incident took place on 22‑8‑1985 and on that day sun had set at 6‑41 p.m. according to the calendar hence there was sufficient light and time to cover injury statements, inquest reports and spot inspection. Electric light or in its absence, lanterns could have been used. If I.O. intended to complete these legal formalities, he could have done so with speed and expedition without raising, excuse of darkness. I.O. stated in cross‑examination that due to darkness he did not collect blood stained earth on the same day but he was able to prepare injury statements and inquest reports.

10. Thirdly prosecution case is and it is so stated in F.I.R. that both appellants went on the roof of house of Kassim and fired from there at Hidayatullah and Akram but I.O. did not see the roof after arrival at the spot and remained there till 11‑30 at night and by that time Kassim and Mst Barkat Bibi also did not appear before him. It is the case of the prosecution that eye witnesses did not see appellants going on the roof of the house of Kassim but Mst. Barkat Bibi did. It is intriguing to note that when I.O. was unable to carry on investigation at the spot due to darkness, what was he doing there till 11‑30 of the night. I.O. has also stated that on the following day he inspected the said roof and recovered 4 crime empties.

11. Fourthly direct evidence is discrepant inasmuch as F.I.R. mentions the fact that acquitted accused Abbas remained in the street and fired in the air on which two deceased persons came out from the house and were fired upon by appellants from the roof‑top, then all assailants went away firing in the air; In the evidence in the Court, complainant did not say anything about seeing acquitted co‑accused firing at the spot. P.W. 14 Muhammad Abdullah did say in his evidence that Abbas acquitted co‑accused fired his revolver but nobody was hurt. Having said so in his examination‑in‑chief, this witness in his cross -examination reiterated this fact with emphasis and improvement that Abbas fired at them but they escaped unhurt. He also stated that before the incident Abbas fired in the air. Prosecution case in F.I.R. is that on hearing report of firing, two deceased went out first followed by eye‑witnesses, which shows that in actuality none saw Abbas firing in the air, then how such positive assertion is made that Abbas fired in the air in the street before, during and even after the incident, in that case why no crime empty was recovered from the street. This aspect is to be considered in the light of the fact that Abbas has been acquitted by the trial Court because on this point evidence of eye‑witnesses was not relied upon in totality without independent corrobroation and their credibility in that respect was suspect.

12. Fifthly Muhammad Aslam third eye‑witness named in F.I.R. was not examined in the trial Court by prosecution as unnecessary on the basis of application moved by the complainant as is recorded by the trial Court on 13‑10‑1987 and mentioned at page 50 of the High Court paper‑book. It is surprising that complainant informed in writing that eye‑witness Aslam should not be examined as he is un-necessary. This clearly shows that inference is unavoidable that had Aslam been examined, he would not have supported the prosecution case. As per prosecution case appellants were motivated to take revenge because Nasir son of complainant gave beating to Muhammad Ali nephew of appellant Muhammad Iqbal and in that case normal expectation would be that victim would be Nasir or his father complainant, who could have been attacked in their own house. In his evidence complainant has admitted that none of the assailants‑had come to his house, which had no outer door on the West. In such circumstances assailants could have walked into the house of complainant to attack instead of going on the roof of house of Kassim to fire from there at victims, who had come out in the street. 'Complainant has admitted in his cross‑examination that when he was out in the street watching incident, he was visible to assailants but none fired at him. P.W. 7 Nasir Mahmood son of complainant has deposed about his beating Muhammad Ali on the same day before the incident and stated that his 161, Cr.P.C. statement was recorded on 9‑9‑1985 after about more than two weeks of incident, which took place on 22‑8‑1985. It appears from his evidence that he was present and available when police visited the spot but he did not disclose story of motive to I.O. He has admitted that he narrated to his father about beating of Muhammad Ali before the incident. In such circumstances no reliance can be placed on the evidence of this witness. It may be mentioned here that P.W. 6 Rashid Ahmad is witness of recovery of blood‑stained earth, empties, crime weapons and has admitted in his evidence that he is brother of complainant. Finding of Ballistic Expert is that only one empty matched with gun P‑11 of appellant Iqbal but since evidence of recoveries is defective, it has been rightly discarded by Courts below for valid reasons.

13. Sixthly so far conflict between ocular and medical evidence is concerned, it may be stated that according to eye‑witnesses firing was made by appellants from the roof of the house at two deceased persons in the street, who became injured and died. This certainly would involve question of height and distance as victims were in the street. Without going into minute details of distance, it can be said with certainty that possibility of scorching, blackening and charring would be excluded, which normally appears in the case of firing from close range. P.W. 1 Dr. Muhammad Rafiq has deposed that there was scorching in the fire‑arm injuries of both deceased persons. He further stated that if injury is caused by a shot fired from roof at the height of seven feet, then it could produce oblique injury. On both deceased persons, injuries of fire arms were not oblique and appeared to have been caused straight on the front, while standing. Doctor has categorically denied that injuries of both deceased could be caused from the roof of the height of 12 to 15 feet. In this context prosecution examined P.W. 12 Syed Rab Nawaz Shah, Draftsman who prepared site plans Exhs. PM and PM/1 and has shown the distance between roof from where firing was made and places in the street, where dead bodies were found to be about 18 feet. Medical evidence has falsified claim of eye‑witnesses that firing was made from the roof of the house at victims in the street.

14. In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against appellants beyond doubt Ocular evidence of two eye‑witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt unfortunate incident has taken place in which two persons have lost their lives but not in the manner asserted by the prosecution. On the basis of evidence of these eye‑witnesses, co‑accused Abbas is acquitted by trial Court and finding is maintained by the High Court. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence and recoveries, but each piece of this evidence is defective and failing in intrinsic value, hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence. We therefore hold that it is fit case in which benefit of doubt can be given to the appellants‑ Conviction and sentence of appellants is set aside and appeal is allowed. They may be set at liberty if not wanted in any other case. N.H.Q./M‑1768/S Appeal allowed.