1982 P Cr (PLP)

The appellants in their statements before the trial Court denied all the allegations and stated that the prosecution witnesses were deposing against them due to enmity. On behalf of the appellants Mr. Azizullah K. Shaikh, their learned counsel, has raised the following contentions : (1) that the ocular evidence is not reliable and sufficient for sustaining the convictions in as much as there is admitted enmity between the parties and all the alleged eye-witnesses are interested persons ; (2) that there is no corroboration‑ of the testimony of the eye‑witnesses by independent, direct or circumstantial evidence ; (3) that the recoveries of weapons cannot be relied upon, firstly be cause with regard to‑the recovery of guns from the alleged posses sion of appellants Jogi and Mubarak, no empty was recovered from the scene of offence which could connect any of them with the causing of injuries to the deceased ; and secondly, the alleged recoveries were neither voluntary nor reliable in that the same were made after the appellants concerned had been in Police custody for a long time ; (4) that there is no reliable evidence with regard to recoveries as the only witness examined by the prosecution, namely, mashir Mehrab, is not only an interested witness but, as appears from the dates on the various mashirnamas, ate was a stock mashir of the Police through out the period of investigation. With regard to contention No. 1, ocular evidence adduced by the prosecution is that of complainant Bakht Ali who is brother of deceased Sobdar and P. Ws. Hakim and Habib who are sister's sons of the deceased as well as the complainant. The only other alleged eye‑witness, namely, Sahibdino, to his own admission, is a caste‑fellow on friendly visiting terms with the complainant, and even otherwise, for the reasons recorded, his evidence cannot be relied upon because of serious inconsistencies in his statement under section 161 and his deposition in Court. It is the case of the prosecution with regard to the motive for the crime that there were matrimonial disputes involving the marriages of appellant Suleman and P. W. Habib inasmuch as the wife of Suleman, Mst. Thadhi, is the sister of Habib and wife of Habib is Mst. Rahima, sister of appellant. Suleman. It is again the case of the prosecution that due to the disputer, the two women had left their marital homes and had gone back to their brother's home. In view of the dispute and enmity between the parties, the learned counsel for the appellants, has argued that the effort on the part of the party of the complainant and of the deceased to rope in as many of partisans of the opposite party as possible cannot be overlooked. In the instant case it is apparent from perusal of the record that there was inordinate delay in the lodging of F. I. R. which obviously could have been utilised for consultations and for false implication of at least some of the partisans of the party of the appellants. A perusal of the F. I. R. lodged by Bakht Ali would show that, although the incident is stated to have taken place some time before sunset, the F. I. R. was lodged after daybreak the next day. In the F. I. R. it is shown that the Police Station is at a distance of about six miles from the scene of offence. Although, according to P. W. Bashir Ahmad A. S. I. who was the Investigating Officer, the scene of offence was only 3‑4 miles from the Police Station, in the deposition made by first informan, Bakht Ali, for obvious reasons, the distance between the scene of offence and the police station was shown to be 12 miles. In the cross‑examination Bakht Ali admitted that there is a Police Outpost called 'Sarhad' which is only one mile away and that the National Highway is about 1 furlongs from the scene of offence. Again, according to P. W. Bashir Ahmad, A. S. I. 'Sarhad' Police Outpost is only one furlong away from the scene of offence. The only explanation given by Bakht Ali for taking so much time to lodge the F. I. R. is that be was afraid to venture out during: ‑the night. This explanation, to say the least, is not plausible in that it is the prosecution case that at the time the incident took place outside the house of the complainant, due to the noise of gunfire and cries, Sahibdino, Kaman and other witnesses bad come and on seeing them, the culprits bad run away towards their village. If this version of the prosecution is accepted, it is difficult to understand why the report with regard to the murder could not be filed at the `Sarhad' Police Outpost or even at the Police Station. . The learned counsel for the appellants has argued that the possibility of roping in at least some of the appellants cannot be overlooked specially in view of the fact that looking to the number and nature of injuries on the body of the deceased, the same could have been caused by about three or four persons, one wielding a gun, another a hatchet and a third a blunt weapon. However, as many as six persons have been involved and all of theta are brothers or cousins inter se. Reverting to contention No. 1 about the ocular evidence on record, as already stated, complainant Bakht Ali is the brother of the deceased and P. Ws. Hakim and Habib are his nephews, and all of them reside together. In view of the admitted enmity between the two groups, the accepted principle of appreciation of evidence in case of such testimony of interested witnesses has to be applied, and before their testimony is accepted, it should be corroborated by independent evidence. With regard to P. W. Sahibdino, it is his version that he had witnessed the incident, including the firing of the gun by appellant Jogi at the deceased. This version of his, however, is not supported as the Investigating Officer, A.S.I. Bashir Ahmad, has stated and proved that in the statement of the witness recorded under section 161, Cr. P. C. he had said that he came to the scene of offence after hearing gunshot reports from outside. The Investigat ing Officer has given evidence which goes to prove six very important discrepancies between the st‑ Cement of Sahibdino recorded by the Police under section 161, Cr. P. C. and his deposition in Court. The Investigating Officer has given evidence to show that in his statement before the Police Sahibdino had stated that he had come to the scene of offence on heating cries and P. W. Kaman had followed him. He had not stated that he was working on the land and on hearing commotion he and Kaman had come to the vardat. Secondly, as already pointed out, the Investigating Officer verified that Sahibdino in his statement before him had said that he was in his house when he heard gun reports from outside. Thirdly, he had stated in his Police statement that he had not seen Mubarak and deceased Sobdar grappling with each other. Fourthly, in his police statement he had not stated that the first hatchet blow was delivered by Suleman accused to Sobdar. He bad also not stated that Suleman was dragging his wife or that in his presence injured Hakim was given hatchet blows. The Investigating Officer admitted that witness Sahibdino, on the contrary, had stated that he found Sobdar lying dead and Hakim injured on his arrival at the scene of offence. Although there is evidence on record of the alleged eye‑witnesses about other persons coming on the scene of offence on hearing cries and report of gunshot, no evidence of ally independent witness has been recorded. On the contrary, although it is admitted by even complainant Bakht Ali that his sister Mst. Thadhi was present and was being dragged away by appellant Suleman, Mst. Thadhi has not been examined as a prosecution witness and, as rightly argued by the learned counsel for the appellants, an adverse inference can be drawn under section 114 of the Evidence Act that, if Mst. Thadhi had been examined in Court, she would have given evidence which would not have supported the prosecution. Besides, the entire dispute, at least partly, pertains to the refusal of her brother Habib to allow her to go with appellant Suleman and, therefore, she was the best person to support the prosecution case with regard to the motive for the crime. With regard to contention No. 2, as already observed, there is no independent, direct corroborative evidence available. With regard to the evidence of recoveries, the same will be discussed while dealing with con tention No. (4) above. With regard to contention No. (3) complainant Bakht Ali stated in his deposition that Hakim became unconscious on account of hatchet injuries on his head, shoulders and other parts of his body ; whereas Dr. Ghulam Sarwar who examined Hakim did not find any incised injuries on his person. It is in the evidence of the doctor that all the 11 injuries he found on the body of Hakim were simple in nature and, in his opinion, were caused by some hard and blunt substance. Again whereas complainant Bakht Ali in his deposition has stated that accused Jogi fired his gun at the deceased from a distance of about one pace and P. W. Habib similarly stated that accused Jogi was standing near the place where the deceased Sobdar was grappling with accused Mubarak when Jogi fired the gun at the deceased, Dr. Bhajan Lal who performed the post‑mortem examination of the dead body of the deceased gave the opinion that the firearm injuries could have been caused from a distance of about 6 to 12 feet, and since there was absence of blackening or charring, the distance from which the shots could have been fired could be even beyond 12 feet. The doctor is definite that absence of blackening or charring showed that the shots could not have been fired within 6 feet. With regard to contention No. (4), there is the evidence of mashir Mehrab and A. S. I. Bashir Ahmad, the Investigating Officer with regard to certain recoveries which will be discussed hereunder. It may here be observ ed that Mehrab mashir, to his own admission, appears to be an interested witness. He in his cross‑examination admitted that his niece Mehran is wife of deceased Sobdar. He has further admitted that Dur Muhammad Pahore is the father of co-mashir Mitho. Mst. Bai, sister of Mitho, is married to Moloo, who is father of P. W. Kaman. He has further admit ted that Mst. Pathani, daughter of Moloo and sister of Kaman, is his wife. He is the only mashir examined in the case and he is concerned with the mashirnama of scene of offence dated 27th June, 1976 report of inquest, mashirnama of injuries of Hakim, mashirnama of securing of hatchet from appellant Jamal, which is dated 1st July, 1976, mashirnama of hatchet of person and arrest of appellants Jogi, Mubarak and Jamal dated 1st July, 1976 mashirnama of securing hatchet by appellant Farid which is dated 10th July, 1976 mashirnama of securing gun from appellant Jogi dated 15th July, 1976 at 8.15. It is, therefore, apparent that this interested witness was all the time available to the Police and was in fact the stock mashir. This witness stating about arrest of accused Jogi, Mubarak and Jamal, in the first instance, stat ed that the arrest was made on the same day of the incident. Again, however, he made the statement that the arrests were made on the next day, and there is a note by the trial Court that the defence counsel stated that the witness mentioned 'next'day' at the instance of A. P. P. The mashirnama of arrests of the aforesaid three accused is dated 1st July, 1976 whereas the incident occurred on 26th June, 1976. The witness states that in his presence and that of co‑mashir Mitho accused Jamal produced a hatchet from his house which was sealed on the spot. However, in his cross‑examination he admitted that Jamal produced the hatchet four‑five days after his arrest. Similarly, in respect of appellant Farid this witness stated that after 8 or 9 days of his arrest accused Farid had led the Police party and mashirs and produced the hatchet from the roof of his house. Mashirnama of the arrest of Farid is Exh. 32 on the record and is dated 10th July, 1976 at 4 p m. ; whereas the mashirnama of securing hatchet from Farid is of the same dated at, 16.10 hours which means that Farid had, according to the aforesaid documentary evidence of mashirnamas, produced the hatchet within 10 minutes of his arrest. This is contradictory of what mashir Mehrab has stated in his deposition, namely, that it was after 8 or 9 days, so far he can remember, after the arrest of Farid that he led the Police party and produced the hatchet. Mehrab mashir further stated that accused Jogi produced the gun 19‑20 days after his arrest. Now, admittedly as shown in the relevant mashirnama, Jogi was arrested on 1st July, 1976 and, according to the mashirnama of production of gun, the alleged recovery was made from him on 15th July, 1976. The learned counsel for the appellants has pointed out that, although Bashir Ahmad A. S I. the Investigating officer, has referred to copy of remand report dated 11th July, 1976 in respect of accused Farid which, according to him, is signed by him and written by Head Moharrir, and has referred to Exh. 39 on the record which shows that remand of accused Farid was taken on 15th July, 1976 showing the ground for the same to be recovery of weapons from culprits. The learned counsel has pointed out that in fact, according to the prosecution evidence already discussed, Farid had already produced the hatchet and, therefore, there was no question of recovery of any weapon from him. There is admission of mashir Mehrab and Investigating Officer Bashir Ahmad to the effect that no empty was found on the scene of offence. The Report of the Ballistic Expert with regard to empty having been fired from one of the guns, therefore, does not connect any of the accused with the commission of the offence. The report of the Ballistic Expert with regard to empty having been fired from one of the guns, therefore, does not con nect any of the accused with the commission of the offence. The learned counsel for the appellant has argued that admittedly there was delay of several days after the arrest of accused Jogi and Mubarak who were in Police custody before the alleged production of the guns. He further argued that interrogation of the accused persons for a long time before the recovery of crime weapons is an indication of the fact that the production was not voluntary, as alleged and moreover the possibility of foisting the weapons has also to be taken into account. He has relied upon the decision of this Court in Confirmation Case No. 13 of 1979 and Criminal Appeals Nos. 84 and 106 of 1979 and Criminal Appeal No. 246 of 1980. In that case the incident took place on 29th April, 1976. The appellant Ghulam Abbas was arrested on 26th August, 1977 and, the gun was secured from him on 6th September, 1977 and there was no explanation as to why the gun was not recovered on the day of the arrest. It had also been contended in that case that the recovery cannot be termed voluntary as the same was made after interrogating the appellant for more than a week while he was in police custody, and it was further contended that the mashirs of recovery were not reliable persons. These contentions were upheld in the decision. Long delay in recovery of weapon, after the appellants had been in police custody, therefore, obviously retards the value of the discovery as a confirmatory circumstance. The learned counsel for the appellants has pointed out that nothing was recovered from appellant Suleman and that although guns are alleged to have been secured from Jogi and Mubarak, no empty was recovered to serve as corroborative piece of evidence. With regard to hatchet stated to be secured from Jamal appellant the report of the Chemical Analyser is that the blood had disintegrated. With regard to appellant Farid, since according to mashir Mehrab the recovery was after 8‑9 days of his arrest, although according to the mashirnamas, the recovery had been accomplish ed within 10 minutes, it is quite clear that the mashir does not support the recovery. For the reasons already given, the evidence with regard to recoveries as given by mashir Mehrab is, to say the least, not reliable or adequate and, therefore, there is no independent corroborative evidence on record to support the ocular evidence. For the reasons given, therefore, there is doubt about the guilt of the appellants and the convictions cannot be sustained. The appeals are, therefore, allowed and the convictions and sentences are set aside. The appellants shall be set free forthwith unless they are required in some other case/cases. Appeal allowed.