1986 P Cr (PLP)

5. As far the main occurrence, it has been stated that Noor Ahmad complainant and Faiz Muhammad deceased resided in Village Jabba. About a month before the occurrence, they came to the Dera of Shah Muhammad P.W. 9 situate in Rakh Khabike to graze their camels. On the fateful day, Faiz Muhammad deceased, Noor Ahmad P.W.8 and Shah Muhammad P.W. 9 were grazing their camels in State Jungle known as Rakh Khabike. Wali Muhammad P.W. came there to meet them. At about ' Rotiwela' Faiz Muhammad deceased was looking after the grazing camels while Shah Muhammad, Wall Muhammad and Noor Ahmad were sitting at a distance of about 20/22 Karams from him, when Feroze Ali appellant, Muhammad Yaqoob, acquitted accused armed with guns, Mumtaz acquitted accused armed with hatchet and Muhammad Akhtar acquitted accused empty‑handed arrived there. Feroze Ali appellant opened fire at Faiz Muhammad hitting him on the right side of his neck. When the deceased was about to fall down, Muhammad Yaqoob co‑accused fired from his gun but the shot missed and did not hit the deceased. Faiz Muhammad then fell down and breathed his last within a few moments. Faiz Muhammad deceased had a licensed revolver with him at the time of occurrence which was removed by the accused. The appellant and his co‑accused then made good their escape taking away the revolver of the deceased with them.

6. After the registration of the case Ch. Zulfiqar Ali S.I. P.W. 11 inspected the spot. He took into possession the deceased's bandolier Exh. P.8 containing 8 live cartridges Exh. P.7/1‑8 from the place of occurrence, vide memo. Exh. P.H. attested by Noor Ahmad P.W. 8 and Wali Muhammad (not produced).

7. Dr. Muhammad Qasim, P.W. 4 conducted post-mortem examination on the dead body of Faiz Muhammad on 12-8-1980 at 7-00 a.m. and found following injuries:-- "(1) Five fire-arm wounds of entry 2 c. m. x 2 c. m. 1 c. m. x 1 c.m., 1 c.m. x 1 c.m. and 1-4/5 c.m. x 4/5 c.m. on the right side of the neck. (2) A wound of fire-arm exit 11 c.m. x 7 c.m. on the front and the left of the neck." In his opinion, the death had occurred due to shock and haemorrhage as a result of the injuries causing damage to the main blood vessels of the neck and also to the thyroid gland and trachea. The injuries were sufficient to cause death in the ordinary course of nature. The injuries were caused by fire-arm. The time between the infliction of the injuries and the death was within 10 to 15 minutes.

8. Feroze Ali appellant was arrested on 28-8-1980 by Zulfiqar Ali, S.I .P.W.

11. On 1-10-1980 he led to the recovery of gun Exh .P.G from rubbish lying behind the residential Kotha of one Mehboob, which was taken into possession, vide memo. Exh. P.D. attested by Alien Khan, P.W. 6 and Sher Baz (not produced). It may be noted here that since no crime empty was recovered from the spot, therefore, the recovery of gun from the appellant is of no consequence.

9. To prove its case, prosecution examined 11 witnesses. Noor Ahmed P.W. 8 and Shah Muhammad P.W. 9 have given the ocular account of the occurrence. They claim to have seen Feroze Ali appellant and Muhammad Yaqoob co-accused firing shots from their guns on the deceased. They stated that the shot fired by Feroze Ali had hit the deceased whereas the shot fired by Muhammad Yaqoob had missed the target. They also claim to have seen Mumtaz co-accused armed with hatchet and Muhammad Akhtar co-accused empty-handed on the spot raising Lalkaras that they had come to take the revenge. The two eye-witnesses also stated that the deceased had a licensed revolver with him at the time of occurrence which was also taken away by the accused. Alam Khan P.W. 6 and Noor Ahmad P.W. 8 have deposed about the alleged motive and the recoveries of the bandolier of Vie deceased from the spot and gun Exh. P.6 from Feroze Ali appellant Dr. Mian Muhammad Qasim has proved the post-mortem examination report of Faiz Muhammad deceased. Zulfiqar Ahmad S.I. P.W. 10 and Ch. Zulfiqar Ali S.I. P.W. 11 have supported the recoveries. The rest of the evidence is of formal nature.

10. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances and raised the plea of false implication on account of enmity.

11. The learned trial Court gave the benefit of doubt to the three co-accused and acquitted them and while believing the alleged motive and the ocular account of the occurrence given by the two eye-witnesses has convicted and sentenced the appellant as stated above.

12. Learned counsel for the appellant contended that the prosecution has not been able to prove its case beyond reasonable doubt even against the appellant; that the eye-witnesses were not present on the spot and had not seen the occurrence, that they are not reliable witnesses; that their statements have already been not acted upon to the extent of the 3 co-accused and that there is a serious conflict between the medical evidence and the ocular evidence. Conversely, the learned counsel for the State has supported the judgment of the trial court. The learned counsel for the complainant /petitioner, in the connected revision, maintained that the prosecution has successfully brought home the guilt to the accused; that the eye-witnesses had no enmity with the appellant to involve him falsely in the case; that the alleged motive has also been proved by the prosecution and that there was no legal and factual justification for awarding lesser penalty to the appellant.

13. We have considered the submissions made by the learned counsel for the parties with care. We feel persuaded to agree with the learned counsel for the appellant. From the state of affairs as given above, it is very much obvious that the entire case of the prosecution rests on the alleged motive supported by Alam Khan P.W. 6 and Noor Ahmad P.W. 8 and the ocular testimony furnished by Noor Ahmad P.W. 8 and Shah Muhammad P.W.

9. So far as the motive is considered, we are of the view that the prosecution has not been able to prove it, in that Noor Ahmad P.W. 8 has stated that he was not present when after having exchanged the abuses Faiz Muhammad deceased had given fists blows to Feroze Ali appellant at Jabba Chowk. He stated that Alam Khan P.W. 6 and Sher Baz (not produced) were present there at that time and had separated the deceased and the appellant. Alam Khan has not been mentioned as a witness of the motive incident in the F.I.R. lodged by Noor Ahmad P.W.

8. Even otherwise, the motive is a double edged weapon and it cuts both ways, which way it actually cuts that depends upon the circumstances of each case. In the instant case, we do not see any justification to give benefit of the motive incident to the prosecution.

14. Adverting to the crucial piece of evidence i.e. ocular testimony, we find that Noor Ahmad P.W. 8 is related to the deceased and Shah Muhammad P.W. 9 is a chance witness. There is no circumstantial or judicial certainty of their presence at the time of occurrence. There are, rather, reasons to doubt that they, in fact, saw the occurrence and were in a position to identify the culprits. Noor Ahmad P.W. 8 had stated in the F.I.R. that; The post-mortem examination report reveals that there were 2 fire-arm wounds on the dead body, out of which one was of entry and other of exit. It seems to us that since the witness had observed 2 fire-arm wounds on the dead body and without knowing that one of them was that of an exit, they attributed one shot to Feroze Ali and other to Muhammad Yaqoob, not only in the F. I. R. but also in statements recorded under section 161, Cr.P.C. At trial stage in order to bring their evidence in conformity with the medical evidence they dishonestly stated that shot fired by Muhammad Yaqoob had missed and not hit the deceased. Noor Ahmad P.W. 8 was confronted with the F.I.R. and Shah Muhammad P.W. 9 was confronted with his statement Exh. D.A. recorded by the police. There is a yet another circumstance which leads to the irresistible conclusion that the two eye-witnesses were not present on the spot at the time of occurrence. That circumstance is the expression of unawareness on the part of the two eye‑witnesses about the removal of the revolver of the deceased at the time or after the occurrence in the F.I.R. as well as in statement Exh. D.A. The prosecution case is that at the time of occurrence, the licensed revolver and a bandolier of the deceased were with him. While lodging the F.I.R., when the facts were fresh in his mind, Noor Ahmad P.W. 8 stated that he did not know if the revolver of the deceased was removed by the accused person or was taken away by somebody else. Similar statement was made by Shah Muhammad P.W. 9 before the police. Had the eye‑witnesses been present near the deceased and seen the entire occurrence as claimed by them, then they would have seen and known the person taking away the revolver of the deceased and would not have shown their ignorance about the person responsible for the removal of the revolver. On realizing this infirmity, the two eye‑witnesses at trial stage dishonestly improved upon their earlier statements and stated before the Court that the accused had taken away the revolver of the accused after the occurrence. From the trend of their statements, it is very much clear that they have given evidence with a motive other than that of telling truth. Their statements do not fit in with the rest of the evidence and the attending circumstances. No doubt, Shah Muhammad P.W. is neither related to the deceased nor he had any enmity with the appellant, nevertheless want of interest or absence of enmity, will not stamp his statements with truth and it has to be seen that their statements are in consonance with probabilities and materially fit in with the rest of evidence so as to inspire confidence of truth in a reasonable and prudent mind. Since we have already observed that the two eye‑witnesses have given evidence with a motive other than telling the truth, therefore, it seems to us that it would be highly unsafe to place implicit reliance on the statement made by them without independent corroboration qua, the appellant which we do not see in the case in hand. For all these reasons, we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt against the appellant. For what has been said above, while giving him the benefit of doubt, Feroze Ali appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in some other case. Resultantly, the connected revision fails. S.G.D. Appeal allowed.