2003 P Cr (PLP)

AKHTAR ZAMAN MALGHANI, J.

This appeal is directed against the judgment, dated 5-10-2000, passed by learned Sessions Ridges, Khuzdar in Session Case No.21 of 1997 whereby the appellant was found guilty under section 302, P.P.C. and sentenced to life imprisonment. He was also directed to pay Diyat amount of Rs.2,25,000 to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was extended in his favour.

2. Briefly stated, facts as disclosed in F.I.R. lodged with Levies Station Zehri by Faiz Muhammad son of Noukar Khan, Foot Constable Levies, are that on 21-9-1996, the first informant and Jamadar Meero were informed by Nazar Muhammad Dahozai near Koocha that cross firing was going on between Boharzai Tribe and Muhammadani Tribe. According to first informant they also heard firing and came to know that one person namely Saleh Muhammad son of Amir Bakhsh Boharzai had died in the incident. The motive behind the murder was previous enmity between the two tribes on account of murder of Khalil Ahmed Muhammadani.

3. After registration of case P.W.5 Abdul Ghani, Naib-Tehsildar proceeded to the spot and prepared the site plan Exh.P.6/A. He also recorded the statements of the witnesses available. During investigation two accused namely Naseer Ahmed and Muhammad Bakhsh were arrested by the Investigating Officer, but appellant could not be arrested, as such; an incomplete challan, showing the appellant as absconder was submitted before the Sessions Judge, Khuzdar. It is word--mentioning that the deceased was neither- medically examined nor the Tehsildar prepared any statement of injury because before his arrival the deceased was already buried by his relative.

4. During the first trial Naseer Ahmed and Muhammad Bakhsh were acquitted of the charge by the learned Sessions Judge vide judgment, dated 21-9-1997, however the case against the present appellant was kept on dormant file. It appears from the record that P.W.6 Somar Khan, Tehsildar arrested the appellant and after usual investigation he submitted challan against the appellant before the learned Sessions Judge.

5. At the commencement of trial charge was read over to the appellant to which he pleaded not guilty and claimed innocence. Thereafter prosecution produced six witnesses in support of its accusation. The appellant neither produced any witness in his defence nor examined himself on oath, however, he denied the allegations of prosecution when examined under section 342, Cr.P.C.

6. On completion of trial the learned Sessions Judge. Khuzdar found the appellant guilty under section

302. P.P.C. (without specifying as to under which clause of section 302, P.P.C. the appellant was found guilty) and sentenced him as mentioned above.

7. Before proceeding with merits of the case we find it expedient to give brief resume of the evidence produced at the trial.

8. P.W.1 Faiz Muhammad is first informant and lodged report Exh.P./1-A. He stated that on 21-9-1996, he and Nazar Khan Jamadat Levies had gone to the area of Zalkhan in connection with official work. On return they came to know through Nazar Khan Dahozai that an exchange of firing had taken place between Boharzai and Muhammadani Tribe and one person namely Saleh Muhammad was killed during the incident.

9. P.W.2 Amir Bakhsh is father of the deceased Saieh Muhammad. According to him on the fateful day he had gone to Killi Balbal in order to attend marriage ceremony of his nephew namely Muhammad Ibrahim while Saleh Muhammad and his companion Nabi Dad. Mangay Khan. Asif Ali and two others also proceeded to attend the ceremony after hint. According to witness at about 12 O'clock he was informed by Asif Ali at Balbal that as a result of firing made by Muhammadani Tribe, Saleh Muhammad sustained bullet wound and died at the spot. He further stated that he was not allowed by the people to go to the spot and Bead body of Saleh Muhammad was brought by them to his house where he was informed by Asif and others that Saleh Muhammad had been murdered by Muhammad Khan (appellant) and Karim Bakhsh by means of firing. In cross-examination he admitted that he had not told the Investigating Officer when examined under section 161, Cr.P.C. that the murder was committed by the appellant and Muhammad Bakhsh but raised only suspicion against them that they might have committed the murder. He was confronted with his previous statement wherein he had mentioned that he was informed about the exchange of firing between Muhammadani and Boharzai Tribes.

10. P.W.3 Nabi Dad son of Hazoor Bakhsh stated that on the fateful day he alongwith Mangay Khan, Ghulam Mustafa, Abdullah, Asif and Saleh Muhammad were going from Chashma to Killi Balbal and near the place known as Kali firing started upon them due to which deceased Saleh Muhammad received two bullet injuries on his chest and died at the spot. He further stated that firing was made by numerous persons out of which he identified Karim Bakhsh and Muhammad Khan being nearer to them. According to him, then he went to Tehsildar for recording his statement but Tehsildar refused to record his statement. He denied the suggestion that on the day of incident he was present at the place of his residence i.e. Kalat and not with the deceased Saleh Muhammad.

11. P.W.4 Muhammad Asif is nephew of the deceased and gave statement to the effect that on the day of incident he alongwith deceased Saleh Muhammad, Nabi Dad, Ghulam Mustafa, Mangay Khan and Abdullah were going from Killi Chashma to Killi Balbal, when they reached near Kali, firing started upon them due to which Saleh Muhammad received bullet injuries and died instanteously. He further stated that the deceased died due to the injuries caused by the firing of the present appellant and Karim Bakhsh. He further added that Jalal Khan, Naseer and others were also involved in the act of firing. According to this witness he informed his grandfather Amir Bakhsh about the incident who came at the spot and brought the dead body of deceased to Killi Chashma. In cross-examination he admitted that his no statement under section 161, Cr.P.C. was recorded, but explained that despite repeated approaches the Tehsildar did not record his statement. He denied defence suggestion that he never appeared before the Tehsildar for recording his statement under section 161, Cr.P.C. He admitted that before reaching of Tehsildar the deceased was buried.

12. P.W.5 Mangay Khan has also given the statement to the same effect as stated by P. Ws.3 and

4. According to him on the fateful day he alongwith deceased Saleh Muhammad, Asif, Nabi Dad and Ghulam Mustafa were going from Chashma to Balbal in order to attend the marriage ceremony of Ibrahim by riding on motorcycles. When they reached near the place known as Kali, Muhammad Khan and Karim Bakhsh started firing upon them due to which Saleh Muhammad received bullet injuries and died at the spot. He further stated that besides Muhammad Khan and Karim Bakhsh several other persons were also present there but he could not identify any of them. In cross-examination he admitted the fact that he was resident of Tehsil Kalat and agriculturist by profession. He also admitted that he had not attended the burial of the deceased. He further admitted that the Tehsildar had not recorded his statement under section 161, Cr.P.C. However, he explained that he had gone to Tehsildar two three times for recording his statement but Tehsildar refused to record his statement. He denied the suggestion of defence that at the time of firing deceased Muhammad Khan was present at the top of the hill.

13. P.W.6 Abdul Ghani, Naib-Tehsildar is Investigating Officer of the case and deposed that or, 21-9-1996 he lodged F.I.R. Exh.P.1/A on the report of Faiz Muhammad Payada Levies and thereafter, proceeded towards the place of occurrence alongwith Levies personnel and after reaching there prepared site plan Exh.P.6/A. He asked the relative of the deceased to produce the blood-stained clothes of the deceased but they refused to hand over the same to him. According to him, thereafter he recorded the statements of Amir Bakhsh and Sardar Naseet Ahmed. He also arrested accused Haji Bilal, Naseer Ahmed and Muhammad Bakhsh and thereafter submitted incomplete challan Exh.P.6/B before the Court concerned. In cross-examination he admitted that no person was nominated in the F.I.R. and same was lodged to the effect that cross? firing had taken place between Muhammadani and Boharzi Tribes. He also admitted that in challan he had mentioned that deceased Saleh Muhammad received bullet injuries while he was on the top of the hill. He further admitted that the father of deceased Amir Bakhsh only raised suspicion against Karim Bakhsh, Muhammad Bakhsh, Murad Bakhsh, Muhammad Khan, Muhammad Rafiq, Khuda Bakhsh, Naseer Ahmed and Haji Jalal for murdering the deceased. He further stated in cross? examination that there was a distance of 3000 yards between the deceased and the place from where tiring was made upon him. He denied the suggestion that Amir Bakhsh produced P. W

5. Nabi Dad, Ghulam Mustafa, Asif and Mangay Khan for recording their statements under section 161, Cr.P.C. but he refused to record the same. 13-A. P.W.7 Somar Khan, Tehsildar is the second Investigating Officer of the case and he arrested the appellant and after usual investigation submitted the challan Exh.P.7/A before the Sessions Judge, Khuzdar.

14. We have heard the learned counsel for the appellant as well as Raja Amir Abbas, Advocate appearing on behalf of the State. It has been argued by the learned counsel for the appellant that the prosecution had miserably failed to prove the case against the appellant beyond reasonable doubt. The so-called eye-witnesses, on whose statements the conviction was based, were of no credence as during investigation they did not appear before the Investigating Officer nor their statements under section 161, Cr.P.C. was recorded during investigation, but were introduced by the father of deceased during trial in order to strengthen the prosecution case. According to learned counsel the trial Court acted illegally by accepting the application under section 540, Cr.P.C. for production of the abovesaid witnesses, which amounts to fill in the lacuna in prosecution case to the great prejudice of the appellant. He further submitted that the version initially set up by the prosecution is F.I.R. was changed by it during trial and a new story was introduced by the so? called eye-witnesses, which was contrary to site plan prepared during the investigation. He further contended that the prosecution failed to prove the actual cause of death of the deceased as neither he was medically examined nor any "statement of injury" was prepared by the Investigating Officer, thus; the learned trial Court was not justified in recording the conviction in presence of such infirmities in prosecution case. He maintained that on the same set of evidence two accused persons namely Muhammad Bakhsh and Naseer Ahmed were acquitted by the learned Sessions Judge in earlier trial vide judgment, dated 17-12-1997, as such appellant could not have been convicted on the same set of evidence without independent corroboration which was lacking in case of the appellant.

15. On the other hand, the learned State Counsel maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt; therefore, the conviction and sentence of the appellant recorded by the trial Court do not warrant any interference by this Court.

16. We have perused the evidence on record in the light of respective contentions raised on behalf of both the parties and also perused the impugned judgment. The perusal of F.I.R. lodged by P.W. Faiz Muhammad, Foot Constable of Levies reveals that initially the case of prosecution as set up in F.I.R. was that there was cross-firing between Boharzai Tribe and Muhammadani Tribes on account of previous enmity, due to which Saleh Muhammad son of Amir Bakhsh lost his life. It may be noted that a personnel of Levies force who was an independent person, having no link with either party, lodged this report. No doubt F.I.R. is not a substantive piece of evidence and can only be used to corroborate or contradict its maker, but at the same time its importance cannot be ignored because it depicts the initial version set up by the prosecution and if prosecution did not stick to the version set up in the F.I.R. and introduces a new version during the trial or at a later stage during investigation, the Courts always see such deviation with doubt until and unless prosecution brings on record strong circumstances justifying the deviation in the case earlier set up in the First Information Report. In the case in hand as already observed the initial case set up by the prosecution in F.I.R. was that deceased Saleh Muhammad died due to cross-firing between the tribes inimical to each other but during trial a new version was introduced through the evidence of P.W.3 Nabi Dad, P. W .4 1 Muhammad Asif and P.W.5 Mangay Khan, according to whom, on the fateful day they were going alongwith deceased Salah Muhammad to attend a marriage ceremony and as soon they reached near a place known as Kali, firing started upon them which was made by the present appellant and Karim Bakhsh, due to which deceased Saleh Muhammad received bullet injuries on his chest and died on the spot. P.W.4 Muhammad Asif during cross-examination denied the fact that there was any cross-firing between Boharzi and Muhmmadani Tribes. The first informant Faiz Muhammad did appear as P.W.1 before the trial Court and maintained the version earlier narrated by him in the F.I.R. No explanation has come on record from the prosecution side as to why it had changed its stand from the earlier version set up in F.I.R. and introduced a new story which reveals that the culprits/accused persons had committed a targeted murder and there was no cross-firing between the two tribes. This change in version by the prosecution has put us on guards and the evidence produced by the prosecution is required to be examined carefully and cautiously.

17. The prosecution in order to sustain conviction mainly relied upon the ocular testimony of P. W.3 Nabi Dad, P.W.4 Muhammad Asif and P.W.5 Mangay Khan who are stated to have been accompanying the deceased at the time of incident and had seen the appellant alongwith D Karim Bakhsh making firing upon the deceased. Admittedly no statement under section 161, Cr.P.C. of the abovesaid witnesses was recorded during the investigation and P.W.2 Amir Bakhsh introduced them for the first time during trial through an application under section 540, Cr.P.C. Although the trial Court has wide power to call any person to give evidence, if it finds that the statement of such witness is essential for E reaching to just and right conclusion. But at the same time the Court is not supposed to fill in the lacuna left by any party to the proceedings by adverting to its power under section 540, Cr.P.C. As already observed the abovesaid witnesses were never examined by the Investigating Officer during the investigation nor there was any material on record to suggest that the examination of these witnesses was essential for just decision of the case, as such; there was no occasion for the learned trial Court to have called them by exercising power under section 540, Cr.P.C. particularly when no statement recorded under section 161, Cr.P.C. was on record and defence was deprived of its valuable right of confronting the witnesses with their previous statement as provided by section 162, Cr.P.C. and Article 140 of the Qanun-e-Shahadat Order, 1984. P.W.6 Abdul Ghani, Naib-Tehsildar had categorically stated before the trial Court that the above mentioned witnesses never appeared before him for recording their statements under section 161, Cr.P.C. although he directed the father of deceased to produce the witnesses. P.W.3, P.W.4 and P.W.5 when examined in the Court stated that the Investigating Officer did not record their statement despite being approached by them in this regard. The witnesses have failed to prove any bias or mala fide on the part of Investigating Officer on the basis whereof he would have refused to record the statement of so important witnesses who claimed to have seen the occurrence. It is not believable that the Investigating Officer would spoil his own case by not examining the eye-witnesses without any rhyme or reason. The assertion so made by these witnesses with regard to non-recording of their statement by the Investigating Officer appears to be after thought, when we look the same in the light of other circumstance and evidence on record. P.W.2 Amir Bakhsh who is father of the deceased when examined under section 161, Cr.P.C. only raised suspicion upon the appellant and other co-accused persons for murdering his son. Had the so-called eye-witnesses present with the deceased at the time of incident and have told the names of the culprits to P.W.2 Amir Bakhsh, he had specifically nominated the appellant and other accused persons for murder of his son instead of raising only suspicion regarding their involvement in the offence.

18. Another factor, which makes their statements of doubtful nature, is ambiguity about the place of occurrence created due to their statements. According to site plan prepared by the Investigating Officer, the deceased was hit with bullet while he was on the top of the hill but according to the abovesaid witnesses the deceased was fired while he was on his way from Killi Chashma to Killi Balbal. We are conscious of the fact that the site plan has never been treated as substantive piece of evidence nor the same can be used for discarding the evidence of a witness whose statement appears to be truthful and reliable, but at the same time the site plan is not a piece of waste paper and cannot be lightly ignored. It reveals the circumstances what has been noticed by the Investigating Officer at the place of occurrence after his immediate arrival. Due to peculiar facts and circumstances of the present case the site plan cannot be ignored. As already observed the initial version set up by the prosecution reveals that there was cross-firing between the two tribes but the eye-witnesses made deviation from such version. According to site plan the deceased was fired from a distance of 3000 yards, which makes the identification of culprits next to impossible.

19. It appears that the above mentioned witnesses had also changed the venue of occurrence in order to justify their presence at the spot and their claim of having identified the culprits by whose firing deceased was injured and died. Other important factor, which has forced us to apply rule of caution in the present case, is the acquittal of co-accused Naseer Ahmed and Muhammad Bakhsh who were involved in the murder of the deceased on the statements of above mentioned three witnesses. It is true that the principle "falsus in uno falsus omnibus" is not recognized by the Courts of law in Pakistan and grain is to be sifted from the chaff but at the same time, when, on the same evidence one set of accused persons have been acquitted, in order to base conviction on the said evidence the Courts have always looked for independent corroboration. The Honourable Supreme Court of Pakistan in such-like case reported in PLD 2000 SC 1 made the following observations:-- "The rule about the indivisibility of the testimony of a witness is that ordinarily if he is found to have falsely implicated an accused person, he should not be relied upon with regard to the other accused in the same occurrence, but if his testimony stands corroborated by strong and independent circumstances regarding the other, the reliance might then be placed on him for convicting the other accused. The Courts are requires to separate grain from the chaff by considering whether the same tainted evidence stands corroborated from some independent and strong circumstance or evidence." If we examine the facts and circumstances of the present case in the light of above observation made by the Honourable apex Court, we find no corroboration to the statements of the above mentioned eye?witnesses. No medical evidence is available on record to prove the actual cause of death nor the Investigating Officer could prepare the statement of injury because the deceased was buried before his reaching to the house of deceased, which could have been used as corroboratory evidence. At the same time no weapon of offence or empties were seized during investigation. One factor which goes against the appellant, is absconding, but same cannot be used as corroboratory evidence against the appellant due to the fact that it was never put to him as al circumstance when examined under section 342, Cr.P.C.

21. P.W.3 Nabi Dad and P.W.5 Mangay are not residents of the area but are residing in Kalat which is about 100 kilometres away from Zehri where the place of occurrence is situated and no plausible explanation has come on record to justify their presence at the place of occurrence. Their presence at the place of occurrence is doubtful, particularly when they failed to timely report the matter to the concerned authorities or got recorded their statements before the Investigating Officer and remained silent for a considerable period which shows that they were made up witnesses and in fact have not seen the incident.

22. So for P.W. Muhammad Asif is concerned, he is admittedly nephew of the deceased and due to admitted previous enmity between his tribe and the tribe of the appellant, is an interested witness and not reliable without any corroboration, lacking in the present case.

23. On account of diverse factors and considerations as discussed above we are of the considered view that no implicit reliance can be placed on the testimony above mentioned three witnesses in order to sustain conviction on capital charge. The above discussed circumstances brings us to an irresistible conclusion that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. therefore, we allow this appeal. The conviction and sentence recorded vide judgment, dated 15-10-2000 by Sessions Judge, Khuzdar is set aside and the appellant is acquitted of the charge. He be set at liberty, forthwith, if not required in any other case. N.H.Q./183/Q???????????????????????????????????????????????????????????????????????????????????? Appeal accepted