1989 PLP 4040 (MLD)

All the three witnesses stated that although cattle were tethered at the Dera, where the deceased was attacked, but none of the shots fired by the accused struck any of them. All the three denied the suggestion that the deceased was a man of bad character or that he was a gambler or used to deal in liquor. They denied that he used to give shelter to absconders. The suggestion that no occurrence had taken place and they were making false statements was also denied by them.

7. Evidence of recovery of rifle (P.13) and wrist watch (P.12) at the pointing out of Karamali, the recovery of gun (P.14) at the pointing out of Manzur, was deposed to by Lai Khan (P.W.12). He also stated that Karamali had pointed out the place where the dead body of the deceased was thrown by him and Iqbal. He admitted during cross‑examination that the deceased was son of his paternal- aunt. He denied that he was named as accused in the case under section 307, P.P.C. lodged by Bati brother of Anara accused, alongwith Nazir and Fateh Muhammad P.Ws. He denied that Abbas was P.W. in that case. In answer to another question, he stated that he had no acquaintance with the S.H.O. and had gone to the police station on the day of recovery of fire‑arms by chance. Ali Muhammad (P.W.13) stated about having witnessed the recovery of rifle (P.15) at the instance of Moonda and recovery of rifle (P.16) at the instance of Abbas. He also stated that Moonda had led to the recovery of hairs of the deceased from a place at a distance of 5/6 miles from the Dera.

8. Muhammad Hussain, S.I., who had recorded the statement (Exh.P.G.) and had taken into possession .12 bore empties (P.1 to 5) and empties of rifle (P.6 to 8) from the spot appeared as P.W.15. He stated about having arrested Moonda, Abbas, Sultan, Bashir, Iqbal son of Ghulam Qadir, Muhammad Hayat and Anara accused. During cross‑examination, he denied the suggestion that he had recorded the statement of the complainant after preliminary investigations. Muhammad Aslam, A.S.I. (P.W.16) stated about the recovery of gun (P.9) effected from Muhammad Hayat, gun (P.10) from Iqbal, gun (P.11) from Anara, rifle (P.15) from Moonda, gun (P.16) from Abbas and blood‑stained hairs (P.17) of the deceased at the instance of Moonda. He also stated about having arrested Karamali and Manzur on 26‑11‑1983 and Karamali having led to the recovery of rifle (P.13) and wrist watch (P.12) from his house and of Manzur having got recovered gun (P.14). He admitted that he had not joined persons from the Abadi from where recoveries were effected. He also admitted that he had not procured the presence of Lambardar for effecting recoveries. Allah Bakhsh (P.W.1) deposed about having witnessed the taking into possession of crime empties (P.1 to 8) from the spot. He also deposed about having witnessed the recovery of fire‑arms at the instance of Muhammad Hayat, Muhammad Iqbal son of Ghulam Qadir and Anara. He admitted that he was accused in the case registered under section 307, P.P.C. at the instance of Bati, real brother of Anara accused. Evidence of keeping the empties and the fire‑arms in the Malkhana and their transmission to the office of the Forensic Science was also led at the trial. Shah Muhammad (P.W.10) was produced to say that proclamations were issued against Karamali, Muhammad Iqbal and Manzur on their being not available to the police for arrest. Dr. Muhammad Rashid Javid (P.W.6) had medically examined Fateh Muhammad complainant at 9‑30 a.m. on 21‑9‑1983 and had noted a small lacerated wound, 0.2 x 0.2 c.m. x skin deep, near left angle of mouth. Neither bleeding nor oozing was found. The injury was opined to have been suffered within the duration of 12‑24 hours, and was declared simple. He (complainant) was referred to Medical Superintendent, A.B.S. Hospital, Gujrat for expert opinion about the weapon used. The. medical Superintendent had expressed opinion that the injury was a border line case and so the injured may be. sent to Medico‑legal Surgeon, Lahore. The doctor stated that he did not know whether the patient was sent there or not. However, one thing is clear that no evidence in this regard was produced at any stage of the trial. P.W.6 had not expressed any opinion about the weapon used for causing the injury.

9. All the appellants during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. Copy of the F.I.R. (Exh.D.E.) lodged‑ by Bati under section 307, P.P.C. was produced in order to prove that the complainant and other witnesses were named as accused in that case. The name of the father of Bati mentioned therein is the same as that give: by Anara appellant in this case.

10. Before proceeding to assess and weigh the evidence, I would like to mention here that the parties have compromised among themselves. The complainant, who is brother of the deceased and their father, have appeared today and have made statements of having compromised with the appellants and of having forgiven them in the name of Allah. The written compromise was submitted on an earlier date but the appellants were asked to produce the complainant and his father in person for verification of the compromise.

11. I have gone through the evidence with the assistance of the learned counsel for the appellants and have examined the contentions raised by him in the light of the evidence.

12. The motive given for the occurrence seems to be far‑fetched one. In that, persons challaned for the murder of Bati, for avenging whose murder, the accused in this case had committed murder, were not related to the appellants in any manner. Two out of the accused named for the murder of Bati were alive and living in the village. Although the third accused had died but his sons are living in the village. If the appellants or for that matter the acquitted accused had any intention to avenge the murder of Bati, their choice would have been someone of the persons named as accused for his murder. The stance of the complainant that the appellants had grievance against the deceased of having helped the accused of Bati's case, does not find corroboration from anything on record.

13. P.W.7 is admittedly brother of the deceased while P.W.8 admitted that he is related to the deceased. P.W.9 is also connected with the deceased. Father of P.W.7 was challaned for the murder of one Gulla alongwith some of the P.Ws. Except P.W. Sultan Mahmood, the others tried for the murder of Gulla including the father of the complainant were sentenced to imprisonment for life. The F.I.R. in that case was lodged by the father of Anara accused while Shera, father of Moonda accused and grandfather of Abbas accused were P.Ws. Although P.W.7 denied that he was named as accused in the case under section 307, P.P.C., registered at the instance of Bati, brother of Anara appellant, yet it stands proved from the copy of the F.I.R. (Exh.D.E.) placed on record. Lai P.W., who was also named as accused in that case admitted having been challaned in that case. In the circumstances, the contention of the learned counsel for the appellants that the eye‑witnesses in this case are related and inimical possesses weight. Their testimonies, therefore, require a very cautious scrutiny and consideration to assess if they had actually witnessed the occurrence or had stage managed to become witnesses.

14. Fateh Muhammad .had reached the cattle‑shed alongwith the deceased. He was close to him when the seven appellants and their three acquitted accused, according to him, had opened the fire. The deceased, according to him, was hit by I three shots while he suffered only a small lacerated injury, 0.2 x 0.2 c.m. x skin deep. The doctor, who examined him, and the Medical Superintendent A.B.S. Hospital, (3ujrat, expressed inability to say if the injury was the result of fire‑arm. The prosecution failed to have him examined from some expert to say that the injury was the result of fire‑arm. I am not ruling out the possibility of a lacerated injury resulting from a fire‑arm, but in view of the inability expressed by two doctors about the weapon used, the possibility of the same having been suffered with some other weapon or object cannot be ruled out. On the other hand, if it is conceded that it was the result of fire‑shot, then it will have to be granted that the injury must have resulted from a single stray pellet. In that regard, his statement is also relevant, which he made at the trial, wherein he stated that he had noted a pellet struck on his lip and he had pulled out the same and threw it. The pellet causing such an injury and making only a visible thrust would have definitely been by the fire from a long distance, but that is inconsistent with the position taken by the witness. Yet another aspect of the matter is that the witness while making statement (Exh.P.G.) had categorically stated that the pellet, after hitting him on the lip, had gone into his mouth. The doctor did not find any such injury He had noted injury only on the outer side of the face. In fact, he had not noted even bleeding. The witness himself also at the trial had altered his statement and stated that the pellet had not entered his mouth, and that it had settled on the lip which he had thrown away after picking out. The description of the injury, the manner in which it was suffered and the improvement made by the witness with regard to its impact, leaves enough room to hold that the complainant may not have suffered the injury in any of the manners stated by him in the F.I.R. and at the trial. The other thing, which makes his testimony doubtful is that he stated during cross‑examination that Nazir (P.W.11) and given up P.W. Ahmad Bakhsh had met him in the village before he had gone to the police station and told him that they had seen the ten accused mentioned in the F.I.R., carrying the dead body, but in spite of that he did not mention that fact in the F.I.R. If he had seen the occurrence and had been in the village at the relevant time and had been informed by Nazir (P.W.11) and Ahmad Bakhsh, he would not have failed to mention an important link connecting the accused with the crime. It is worth mentioning here that the trial Judge did not believe the statement of Nazir P.W. for the reasons, which in my assessment also, do not call for any interference. Still another fact which makes his statement doubtful is that he admitted during cross‑examination that his statement was recorded by the S.I. at the spot and his thumb‑impression was taken on that statement. If his claim of having witnessed the occurrence and having reported the matter to the S.I. in Chak No.3 had been true, he would not have admitted that the S.I. had recorded his statement at the spot. The inspection of spot by the S.I. on 21‑9‑1983 also leaves room to consider that the F.I.R. might not have been recorded on 20‑9‑1983. For all these reasons I am prone to hold that the complainant was not present himself at the time of occurrence.

15. A perusal of the statements of other two witnesses shows that they had tried to toe the line given by the complainant. They are not only related to the deceased but inimical also to the appellants. They were pitched with the appellants' families with criminal litigation in more than one case. Their conduct of having stayed in the village after the occurrence and of having not made attempts to chase the assailants, with the help of other villagers, for rescuing the dead body of the deceased or at least for keeping an eye to see as to what they do with the same, makes their claim of being present at the time of occurrence is doubtful. Being relatives of the deceased, they would have either run to the police for help or would have definitely chased the accused. It is their own case that they had witnessed the occurrence from a different Dera. That being so, they could not have noticed the complainant having hidden himself in the manger and of having seen the occurrence from there. Yet another fact which makes the testimonies of all the three eye witnesses unnatural, is, that if, according to them, some cattle were tethered in the cattle-shed and ten persons had been firing indiscriminately, someone of the cattle must have been struck, but no such thing had happened, nor the police had found any cattle injured. The ocular account in this case, therefore, is not coming from an unimpeachable source and so cannot be relied upon.

16. The recoveries of weapons of offence effected from the appellants, other than Karamali and Manzur, are of no consequence, as none of them was found; wedded with the empties said to have been recovered from the spot. The rifle and gun alleged to have been recovered from Karamali and Manzur, although were found wedded with the empties taken into possession from the spot, but in my view, it does not inspire confidence. The only witness from public produced in this regard was the first cousin of the deceased. He had no business to be present I near the police station on the day of recoveries. No person from vicinity was joined to witness the recoveries. Even though there were two Lambardars of the village but none was asked to attest the recoveries. Herein, is not, a case, where the recoveries were effected as a result of sudden disclosure at the spot. Here according to the S.I. the accused had made disclosures after quite a few days of their arrest and they were then taken to the place of recoveries, which was at a , distance of a few miles. The S.I. therefore, could well have arranged the presence of respectable persons and residents of the vicinity. Evidence of wrist watch, alleged to have been recovered at the instance of Karamali, does not also inspire confidence, for the same reasons. The other aspect is that if these persons, according to the prosecution, had destroyed the dead body, they would not have kept the wrist watch with them, which does not appear to be of much value. The prosecution did not show at the trial as to what had happened to the licensed gun of Maula Dad, which the deceased was having with him on the day of occurrence and was taken away by the assailants. The evidence of the prosecution that one appellant had pointed out the place where the dead body was thrown in the river is absolutely inadmissible and of no consequence, as nothing was recovered from there.

17. Since the ocular account and the evidence of recoveries stands disbelieved, the conviction of Karamali and Manzur cannot be maintained, merely on the basis of evidence of absconsion, even if believed. This appeal is, therefore, allowed. The appellants are acquitted by way of grant of benefit of doubt. They are already on bail. Their bail bonds and sureties stand discharged. M.Y.H./K‑200/L Appeal allowed.