1980 P Cr (PLP)

Dates of hearing : 23rd and 27th May, 1979. SAJJAD ALI SHAH, J.‑Appellants Shah Bakhsh son of Gelo, Abdul Karim son of Tajal and Arbab son of Jan Mohammad have filed this appeal against the judgment of learned Ist Additional Sessions Judge, Sukkur dated 16th December 1978 whereby they have been convicted for offence under sections 302! 149 and 148, P. P. C. and sentenced to imprison ment for life. They have further been ordered to pay a fine of Rs. 3,000 each or in default to suffer R. 1. for one year more. Out of the fine, if realised, Rs. 2,000 from each appellant has been ordered to be paid to the heirs of the deceased as compensation under section 544‑A, Cr. P.C. They have also been sentenced for offence under section 148, P.P.C. for a period of one year each. The sentences are directed to run concurrently. Appellants were tried alongwith co‑accused Khunri son of Zanoo Kandero son of Bhoot and Illahi Bux son of Maula Bux but they were acquitted by the trial Court. After hearing the learned Advocates appearing for each side in the case, by a short order, we had allowed this appeal on 28th May, 1979 and acquitted the appellants for reasons to be recorded later, which follow now. Briefly stated prosecution case is that appellants and acquitted co‑accused are interrelated. Appellants Shah Bakhsh and Arbab are maternal uncle and cousin of appellant Abdul Karim respectively. From the acquitted co‑accused Khunri, Kandero and Illahi Bux are uncle, cousin and brother of Abdul Karim respectively. There was one other co‑accused by name Wazir in this case who had absconded during the proceedings is maternal cousin (masot) of Khunri. Appellant Abdul Karim is husband of prosecution witness Mst. Rani, who is daughter of Kehar Khan complainant. She is also niece of deceased persons in this case namely Mehar Khan and Zangi Khan who were brothers inter se and of the complainant also. About four months prior to the incident Mst. Rani was declared `Karl' with one Arbab Lohar by her husband Abdul Karim and his uncle Khunri. The said Karo was murdered by Abdul Karim and Khunri. Mst. Rani took shelter with her father Mehar Khan, who shifted her to the house of his brother Mehar Khan in another village called village Daftri mosque for the reason that the appellants wanted to kill her. The appellants demanded the hand of Mst. Rani from the complainant but he refused the same and Mehar Khan and Zangi Khan deceased persons in this case were instrumental in not sending Mst. Rani to her husband and his relatives as they would have killed her. It is further the case of the prosecution that on the day of incident, that is, 31st October, 1974 at about 5 p:m. two deceased persons Mehar Khan and Zangi Khan were sitting in their house in village Daftri mosque taluka Shikarpur alongwith other inmates namely Maula Bux and Allah Bux who are sons of N9ehar Khan, Mst. Rani and Mst. Umedan wife of Mehar Khan, when seven accused persons including the present three appellants and three acquitted co‑accused mentioned above and absconding co‑accused Wazir came there in a jeep. From them Shah Bux and Arbab had no weapons but the rest were armed with guns with the exception of absconding accused Wazir who had a hatchet with him. After raising hakkals the assailants opened fire from their guns at Mehar Khan and Zangi Khan who fell down injured and died. The assailants there after went back. The incident was seen by Mst. Rani, Maula Bux and Allah Bux and Mst. Umedan. P. W. Maula Bux aged about 14 years at the time of incident went to the house of complainant Kehar Khan in Deh Phul Pota and apprised him of the incident. Complainant then came with Maula Bux to the scene of offence and after seeing the dead bodies of his brother Mehar Khan and Zangi Khan with gunshot injuries went to the police station New Fojdari, Shikarpur for report which was lodged at 9 p.m. on the same day. P. W. 7 Mushtahar Hussain A. S. I. after recording the report came to the place of occurrence where he reached at 12 noon in the night. Vardat was pointed out by complainant. He found the dead bodies of Mehar Khan and Zangi Khan which he despatched to mortuary for post‑mortem examination after preparation of Inquest report. He secured blood‑stained earth and put into sealed parcel. He also secured six spent cartridges and one bullet from the vardat and put them into sealed parcel. He recorded statements of the witnesses. During further investigation this A. S. I. came to know that accused Kunri, Kandero and Ellahi Bux were in judicial custody in connection with some other case at the time of incident. On 5th November 1974, he got statements under section 164, Cr. P.C. of witnesses Allah Bux, Mst. Rani and Maula Bux and some other witnesses recorded before the Civil Judge and F. C. M., Shikarpur. On 11th November 1974, he arrested appellant Shah Bux and thereafter, handed over the papers of investigation to S. H. O., who was not examined by the prosecution. After completion of the investigation challan was presented in the Court. Prosecution has examined 10 witnesses in support of its case P.W. 2 Mst. Rani, P.W: 3 Maula Bux and P.W. 4 Allah Bux have been examined as eye‑witnesses. P. W. 1, Kehar Khan is complainant who was informed about the incident by Maula Bux P.W. 5 Mehar has attest ed mashirnama of scene of offence and arrest of appellant Shah Bux. This witness did not support the prosecution case and was declar ed hostile. P.W. 8 is Ghulam Haider Tapedar who has prepared the sketch of scene of offence Exh.

50. P.W. 9 Qurban Ali and P.W. 10 Amanullah are process servers. They have deposed about non -service of process on P.Ws. Umadan and Arbab P.W. 7, Mushtabar Hussain, A S I has investigated the case. P.W. 6, Doctor Gul Hassan has conducted post‑mortem examination on the dead bodies of Mehar Khan and Zangi Khan. He found that ‑ both of them had died due to injuries caused by fire‑arm. Prosecution has produced report of Chemical Examiner Exh. 82 which is to the effect that the earth was found to be stained with human blood Appellants in their statements under section 342, Cr. P. C. recorded in the trial Court have denied prosecution allegations and proclaimed innocence. Appellant Shah Bux has further stated that on the day of incident he had gone to Sukkur to attend the faisla at the residence of Mir Noor Ahmed Khan and Dur Mohammad Khan Pathan. He stayed there over night and in the morning returned to Shikarpur where he came to know that some dacoits had killed Mehar Khan and Zangi Khan. Appellant Shah Bux further proposed to submit his defence. Appellant Abdul Karim stated that he was at Hyderabad on the day of incident. Appellant Arbab stated that he was also at Hyderabad on the day of inci dent and further that he was declared as Karo with Mst. Pathani wife of Tillo brother of complainant and for this reason he had shifted from there. Appellants Abdul Karim and Arbab also proposed to. produce their defence. Acquitted co‑accused had pleaded alibi that they were in jail in connection with some other case when the incident took place. They had also produced witnesses to prove their custody in jail lock‑up at the time of incident in this case and it is not necessary to go into those details because there is no acquittal appeal before us in respect of the acquitted co‑accused. So far the defence of present appellants is concerned Dur Mohammad Pathan has been examined as defence witness before the trial Court, who confirmed the statement of appellant Shah Bux and further stated that he settled a land dispute between Shah Bux and Amir and Mung Lohat at Sukkur on 21st October, 1974. Shah Bux left in the morning. The witness has further stated that they came to know about the murders on 3rd day and Shah Bux was named as accused in that case. No witness was examined in respect of alibi pleaded by appellants Abdul Karim and Arbab with regard to their presence at Hyderabad on the day of the incident. In this case ocular testimony is furnished by three eye‑witnesses who are related inter se and are also related to the deceased persons. P. W. 2 Mst. Rani is the star witness of prosecution, who also happens to be the bone of contention. She is daughter of complainant Kehar Khan and is niece of deceased persons P. W. 3 Maula Bux and P. W. 4 Allah Bux are brothers inter se and are sons of deceased Mehar Khan. Both these witnesses were very young boys at the time of incident. The record shows that while the depositions were being recorded by the trial Court the age of P. W. 3 Maula Bux has been described as 15 years. The evidence of this witness was recorded on 5th August, 1976, when the incident took place on 31st October, 1974, which shows that at the time of incident the age of this witness was about 13 years. This witness Maula Bux went and informed complainant, who himself being not an eye‑witness, lodged F. I. R. on the basis of statement of this witness. P. W. 4 Allah Bux has been described as 12 years old at the time when his statement was record ed in the Court on 5th August 1976, hence at the time of incident he was about 10 years old. The evidence of these two witnesses because of their tender age is to be considered with care and caution for reasons that young witnesses often tend to exaggerate and dramatise the incident and secondly that it is very probable that they would have been scared and might have hidden themselves to save their lives or apprehension of receiving injuries. In that case they are not likely to see the whole incident. The prosecution case is that seven accused persons came in a jeep and with the exception of Wazir, who was armed with a hatchet, others were armed with guns. After getting down from the jeep they crossed the hedge of the house and all of them fired. This is so stated by P. W. Maula Bux in his deposition before the trial Court. He was confronted with his 164, Cr. P. C. statement wherein he had stated that Arbab was armed with hatchets while the rest were armed with guns. He also testified that there were three or four houses in the village but nobody came at the time of incident. There was also the house of Mehar Khan at a call's distance. He had admitted in his statement before the Civil Judge that there were about 50 houses at a distance of 1f furlongs from his village. He also .claimed to have covered a distance of 8 miles to go to Kehar Khan complainant via Laikhi Gate Shikarpur and Rustam Road to inform about the incident but on the way he did not apprise any person about this occurrence. Before the trial Court he stated that he did not note the colour of jeep but had stated in his statement before the Civil Judge that jeep was of red colour. He also claims to have been sitting with the two deceased persons on the same cot under the shade of babul tree when the assailants came in but does not further explain as to what he did after the arrival of the assailants nor has he explained as to how he escaped injuries if he remained there with the deceased persons on the same cot because the prosecution allegation is that as soon as the assailants came in the house, six of them who were armed with guns open ed fire straightaway in the result whereof Mehar Khan and Zangi Khan fell down injured and died. He has testified before the trial Court that at the time of incident P. W. Allah Bux was busy in cutting the grass. This witness has further admitted that he was involved in a theft case which was pending at the time when his deposition was being recorded in this case. Likewise P. W. Allah Bux also stated in his deposition before the trial Court that with the exception of Wazir, who was armed with a hatchet, others were armed with guns and all had fired. He was confront ed with his statement under section 16.4, Cr. P. C. in which he had stated that Arbab had a hatchet. He has further stated before the trial Court that at the time of incident all the inmates of the house were sitting on the two separate cots while in his 164, Cr. P. C. statement he has stated that he, his father Mehar Khan, Zangi Khan, Mst. Umedan and Mst. Rani were sitting together on one cot when the assailants appeared. This witness categorically assented before the trial Court that jeep was of white colour. In his 164, Cr. P. C. statement he had stated that the jeep was of green colour. In the cross‑examination before the trial Court this witness armed that he had stated before the police that his uncle Zangi Khan and his father Mehar Khan were talking with each other in the house while his mother Mst. Umedan and sister Rani were doing household work when the incident took place. He denied having stated in 164, Cr. P. C. statement that all were sitting together in the house at the time of incident. Apart from this both these eye‑witnesses have made a deliberate attempt to testify before the trial Court that at the time of incident their mother Mst. Umedan was not well and was in the room in order to show that she could not bean eye‑witness to the incident, while in their previous state ments they have shown her as eye-witness. Mst. Umedan has not been examined by the trial Court. P. W. 9 Qurban Ali constable deposed before the trial Court that he received summons from the Court for service on Mst. Umedan and others and Mst. Umedan refused to accept the process. In the affidavit filed by this witness it is stated that he went to the house of Mst. Umedan from time to time but she refused to receive the summons consistently. Thereafter the Court issued warrants against Mst. Umedan and in this respect Amanullah constable P. W. 10 has been examined and he has stated before the Court that when he went for service of warrants on Mst. Umedan he came to know that‑ she had gone away to Pat Feeder area and her address was not known. This is surprising as to how Mst. Umedan, mother of two young boys namely Maula Bux and Allah Bux would leave them unattended after the death of her husband and disappear in Pat Feeder. From this an inference can be drawn that Mst. Umedan is an eye‑witness to the incident but she had been kept away by the prosecu tion deliberately for the reason that had she been put in the box before the trial Court she would have deposed not to line with the prosecution case. P. W. Maula Bux has admitted before the trial Court in his statement that Mst. Pathani was his aunt and was declared Kari with appellant Abdul Karim and was murdered by his cousin Arbelo son of Tillo. He has further denied that Abdul Karim did not give com pensation. Prosecution heavily banks on the evidence of Mst. Rani who is the root cause of the incident. It is alleged that she was declared Kari by her husband appellant Abdul Karim and the Karo was killed and she was shifted by her father Kehar Khan complainant to the house of his brother Mehar Khan for protection from appellants who were demanding her hand from her father to be murdered as Kari. It is surprising that she was present at the spot when appellants and acquitted co‑accused came to the vardat and six of them were armed with guns but did not kill her when all of them had opened fire in the result of which Mehar Khan and Zangi Khan got killed. In such case if Mst. Rani was really present at the scene of offence the assailants are expected to kill her and go away because they had also killed Karo and they were after her. The case of the prosecution is that she was very such present at the spot and not only that but she has seen the whole incident and she was unhurt and she has been produced and examined as eye‑witness of the incident. It has been contended on behalf of the appellants that in the circumstances of the case as alleged by the prosecution, if her present at the spot is accepted then it is more consistent with natural conduct that on seeing the assailants arriving in the house she would run for her life and would not be in a position to wait and see the incident. While deposing before trial Court Mst. Rani has stated that at the time of incident Mst. Umedan was sick. She was confronted with her 164, Cr. P. C. statement wherein she had only mentioned that Mst. Umedan was present at the time of incident but has not said any thing about the sickness. She has also asserted before the trial Court that the jeep was of black colour. Like other two eye witnesses she had stated before the trial court that Wazir was armed with hatchet and others had guns and she was confronted with her 164, Cr. P. C. statement wherein she had stated that Arbab was armed with hatchet and others had guns. In her deposition before the trial Court she has stated that her husband Abdul Karim had informed her father that she was carrying on illicit terms with Arbab who was murdered. She had further deposed that the accused persons told her father that she should be given back to them for murder but her father refused and shifted her to the house of her uncle Mehar. In the said deposition in her cross‑examination she changed her version and stated that her father had taken her to the house of her uncle Mehat Khan because Mst. Umedan was sick. She has further stated that she did not anticipate any danger to her life and till the time of incident she was ,not declared Kari by the appellants but in the same breath she bad admitted that Arbab was already murdered before the incident. This she has done under strain in order to prove her presence at the spot to see the whole incident. This is the whole ocular testimony produced by the prosecution with inherent inconsistencies mentioned above. P. W. 1 Kehar Khan complainant who is not an eye‑witness of the incident has testified before the trial Court that he was informed by Maula Bux about the facts of the incident and he came with him to the spot after seeing the dead bodies of his two brothers namely Mehar Khan and Zangi Khan went to the police station and lodged the report. About the motive it is deposed by him that Mst. Rani was wife of Abdul Karim and about three or four months prior to the incident she was declared kari with Arbab who was murdered by khunri and others and there was a case registered against them. Thereafter he took his daughter to the house of Mehar Khan. Accused persons insisted for return of Mst. Rani but he refused and it was on this account that they came and committed double murder of his brothers Mehar Khan and Zangi Khan. Before the trial Court he has admitted that he went to the vardat while walking on foot and while doing so he passed through Shikarpur and he did not inform any person about the incident on way to the vardat. He has also stated that nobody came to the vardat after the incident. Before the trial Court complainant denied that he knew Mst. Sakina who had filed a case under section 107, Cr. P. C. against the acquitted co‑accused and he was confronted with his statement under section 164, Cr. P. C. wherein he had admitted relationship with her. Complainant also admitted that Mst. Pathani wife of his brother Tillo was declared Kari with appellant Abdul Karim and she was murdered by Arbelo son of Tillo. The learned counsel appearing for the appellants has contended that not only the eye‑witnesses in this case are interested, partisan and inimical to the appellants but there are inherent inconsistencies in their evidence which throw doubt on their veracity. These witnesses have fettered about the fact whether Wazir had a hatchet or Arbab and the colour of jeep and where were they at the time when the incident took place. They have also made an attempt to show that Mst. Umedan was sick and could not see the incident when earlier they had consistently stated that she was with them present at the spot and saw the incident and her name is also mentioned in F. I. R. It is also contended by the learned counsel that the learned trial Court has acquitted three accused persons, who had produced evidence in defence to prove their alibi that at the time of incident they were lodged in jail and could not be present at the vardat, hence the evidence of such eye‑witnesses should not be relied upon unless very strong corroboration is available coming from independent sources which should be sufficient independently of the tainted evidence to prove the guilt of the accused. In the case of Rashid Ahmed v. The State (P L D 1976 Kar.438) it has been held that it is a well‑established rule of prudence that when prosecution witnesses are discredited in respect of majority of the accused it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corroboration in respect of such accused. This rule of prudence is rendered all the more essential when the witnesses are shown to have falsely implicated innocent persons. In the instant case also inconsistencies and discrepancies in' the evidence of the eye‑witnesses are mentioned above and in addition to that in the circumstances stated above it cannot be said that the evidence of these three eye‑witnesses is free from doubt. Both P. W. 3 Maula Bux and P. W. 4 Allah Bux were very young boys aged 12 and 10 years respectively when the incident took place and it is very likely that they would run away when seven accused persons came there duly armed with guns with the exception of one and opened fire as claimed by the prosecution. In such case they would hide themselves and would not see the whole incident neither would they remember the identity of all the assailants. Likewise Mst. Rani if she was present in the house at the time of incident would be the first person to run away and save her life because she would have been the most wanted target of the assailants. In any case it is rule of prudence that strong corroboration coming from independent sources is required which is lacking in the present case. Although six spent cartridge and one bullet have been recovered from the spot but no fire‑arm has bee recovered from any of the assailants hence this recovery of empty cartridge and one bullet is not incriminating in nature and although it shows that murders were committed with fire‑arms but it does not show that appel lants were the assailants. Similarly medical evidence also proves that murders were committed by use of fire‑arms but it cannot be treated corro boration qua appellants so far their identity is concerned. Motive of enmity is always a double‑edged weapon and if it can be used against the accused persons to have motivated them to commit the crime, it can also be used against the prosecution for false implication of accused persons particularly when the crime is un-witnesses or when ocular testimony is highly doubtful. In these circumstances we hold that since the learned trial Court has acquitted three co‑accused which reflects upon the ocular testimony adversely in the sense that they had implicated those three acquitted co‑accused falsely, no reliance can be placed upon the testimony of such eye‑witnesses unless there is corroboration and for that matter strong corroboration coming from independent sources, which is per s sufficient to sustain conviction which is not available in this case. We, therefore, give benefit of doubt to the appellant and acquit them. Appeal allowed.