1978 PLP 17 (SCMR)

The second unsatisfactory feature is the time at which the dead body seas said to have been removed in a truck by the corpse bearer to the mortuary at Bahera which is 3 miles from the house of Malik. If that was so, then it could not have taker, more than an hour or so but the corpse bearer reached the mortuary at noon the following day. It appears that due to some con fusion it has been mistakenly stated not only by the corpse bearer but also by Malik that the dead body was despatched at about mid‑night, as there was no immediate necessity for removing the dead body at night. However, nothing turns on it. Having regard to the time at which it reached the mortuary the dead body mast have been allowed to remain at the house during night and removed the following day. It was next contended that the committal Court depositions of Mst. Pathani and Akbar have hardly any evidential value as they are not reliable witnesses. We have no hesitation in rejecting this contention for in those statements they have fully implicated the appellant and Akbar, and no Question was even suggested to them to challenge their veracity or the details of the incident. As rightly held by the Courts below they had under some pressure or influence resiled from their earlier statements which stood duly corroborated not only by the testimony of Malik but also by the incised injury suffered by the deceased indicating thereby that two types of weapons were used. Lastly the learned counsel contended that the evidence qua the appellant and Akbar was the same and in that event if Akbar was acquitted then the benefit of doubt should also be extended to the appellant. This contention is again misconceived for the trial Court while acquitting Akbar had not disbelieved the ocular testimony. It only acted on material which had no evidential value and could not provide a foundation for the acquittal of Akbar. There was ocular testimony against Akber which stood corroborated by the presence of an incised injury on the face of the deceased which proved his participation beyond doubt. However, the trial Court on an unterable conclusion drawn from the opinion of the investigating officer that the Miain had held him to be innocent brushed aside the ocular testimony and gave to him the benefit of doubt. Accordingly it was wholly unjustified acquittal. Our attention was also drawn to the fact that Malik had not mentioned about the hatchet lying at the spot. Since there is no material to lay a foundation to its having bean planted, I have no hesitation in holding that Malik had inadvertently omitted to mention this detail. It seems that if he had attributed a part to him then he would not have deliberately emitted to mention the presence of the hatchet at the spot. I find that the Courts below have correctly appraised the evidence and believed it to be sufficient and conclusive to establish the guilt of the appellant beyond reasonable doubt. Accordingly I would dismiss the appeal. ANWARUL HAQ C. J.‑I agree. NASIM HASSAN SHAH, J.‑I agree. QAISAR KHAN. J.‑After going through the judgment proposed by my learned brother Muhammad Haleem, J. to be delivered in this case it is with respect that I have to state that I do not find myself in agreement with it. I, therefore, proceed to record my own judgment. The facts of the case need not be reiterated as these have already been given in detail by my learned brother in his proposed judgment. I straight away proceed with the discussion of the prosecution evidence. The prosecution evidence in this case consists of the following pieces:‑ (1) Ocular evidence of Malak P. W. 6, Mst. Pathani P. W. 7 and Akbar P. W. 8. (2) Motive for the offence. (3) Non‑existence of motive for a false charge. (4) Medical evidence. Before discussing the aforesaid pieces of evidence I would like to mention that there are some very disturbing features of this case which create genuine doubts about the credibility of the prosecution evidence. It is not for the Courts to find out flimsy explanations for the genuine doubts crested in the prosecution evidence, but it is for the prosecution to get these doubts explained in a reasonable and plausible way. The occurrence according to the prosecution took place at Deegar time. Since it was the 11th of February Deegur could therefore be taken at the latest at 4 p.m. The police station was only 4 miles from the spot and the report there should have been lodged at the latest by 6 p.m. According to the prosecution evidence, however, the report was lodged not in the police station but lodged at a place known as Pakwal distant only a mile from the spot. According to Malak P. W. who reported the matter, he went towards the police station for a mile and when learnt that the S. H. O. was in Pakwal went from there to Pakwal a mile away and reported the matter. This mean that Malak P. W. covered a distance of only 2 miles to report the matter. The matter should therefore have been reported at 5 p.m. as according to Malak he left for the police station soon after the occurrence. The matter wag however reported at 10‑30 p.m. as alleged by the prosecution though that too is very much doubtful taken into consideration the statement of Muhammad Feroa H. C. P. W. 4 who received the report and incorporated it in the F. I. R. This P. W. could not state and had not in fact noted as to who brought the report to the police station, and besides according to him the Roznamcha for the day was closed on the next day at 9 a m. Anyhow, even if it be taken as correct that the report was lodged at 10‑30 p.m. there was a delay of 5 hours in lodging the report. This w an extreme delay and the prosecution was bound to give a reasonable explanation for it. There is however no explanation whatsoever fort coming from the prosecution side for this delay and it is not for Courts to conjecture that Malak P. W. may have been doing this or that. It was for Malak to have stated that, and not for the Courts to conjecture in favour of the prosecution. This extreme delay leads us to the only irresistible conclusion that the occurrence took place at the dead of the night with out having been noticed by any body and that the matter was reported in flue police station come time early in the morning but the report was not recorded and the prosecution case was fabricated after carrying out investigation on the spot. Another conclusion which could be drawn that the occurrence took place at Deegar time and the matter was lodged after the consultation and deliberations is out of question as in that case there could not have been a delay of 5/6 hours The aforesaid irresistible conclusion referred to by me finds corroboration from the prosecution evidence itself. It is in the statement of Sher Muhammad F. C. P. W. 2, Malak P. W. 6 and Muhammad Nawaz S. H. O. P. W. 10 that the dead body was despatched to the mortuary at mid‑night. Now this is the position evidence and why should the Court find an explanation for it that it was not so. Seer Muhammad F. C. has stated that the dead body was taken in a truck while Malak and the S. H. O. have stated that it was taken on cot by four persons. Now even if the statements of Malak and the S. H. O. are token as correct the dead body should have reached the mortuary at 1 or 2 a.m. at the latest, the mortuary being 3 miles from the spot. The statement of the F. C. however shows that he reached Begh mortuary at 12 noon. Now it is beyond my comprehension at least as to how could a distance of three miles be covered in 10 or 12 hours. The only irresistible conclusion therefore is that the dead body sasses despatched at 10/11 a.m. on the 12th. This finds support from the statement of the doctor who says that he performed the post‑mortem examination on the dead body at 3 p.m. on the 12th. If the dead body had reached the mortuary during the night then the post‑mortem would naturally have been performed in the morning. The fact that the den body was despatched to the mortuary at 10/11 a.m. clearly shows that the coalface had taken place during the dead of the night and that the report was recorded after great deliberations and consultation and after the police had carried out investigation on the spot and Akbar had been procured as a witness. The above finds support even from the statement of Muhammad Din P. W. 9 who is a close relation of Malak P. W. This conclusion finds further support from the fact that the report was not lodged in the police station and that the S. H. O. conveniently made himself available at another place. Furthermore if the occurrence had taken place at Deegar time and one of the accused had left his blood‑stained axe on the spot Malak would certainly have seen the axe and would have taken it along with himself for production to the police at the time of the report or would have at least mentioned its presence on the spot in his report. The fact that no mention of the blood‑stained axe was made in the report clearly shows that the occurrence did not take place at day time and that the recovery of the bloodstained axe was fabricated thereby suggesting. that the P. W. bad not seen the occurrence. It has been asserted that if the occurrence had taken place at the dead of the night then the deceased could not have been killed outside the room as it was winter and the deceased must have been sleeping inside the Kotha. Her having been killed outside the Kotha would not only suggest that she was killed at day time. It could also be that she had either come out during the night for urlnating or that there was knock at the door and she came out after opening it. Any how both these version are only conjectures and we have to look to the other evidence which I have discussed above a to when diet the occurrence take place. Now coming to the medical evidence it does not prove anything against the accused. Malak P. W. did see the dead body on the spot before reporting the matter and he had naturally seen the gunshot wound and the incised wound. He had therefore to state in his report that the deceased had been done to death by a shotgun and an axe and the finding of the two types of wounds on the person of the deceased by the doctor could not be a corroboration of the statement of Malak P. W. Now coming to the motive, if there was no motive for a false charge then there was no motive for the offence and if there was a motive for the offence then that motive could equally be a motive for a false charge or a charge on suspicion. The prosecution case is that the accused was a man of loose character and that his wife had protested about it to her parents. That on that account the accused had threatened her with death and that her parents had therefore brought her to their house which had annoyed the accused. Now it is common knowledge that wife never leaves her husband on such like pretext in our society at the lower level. Besides the accused and the deceased were married 5 years before the occurrence and were living all along amicably in Gujranwala where the accused was posted. The deceased never left his house on any such pretext as there is nothing with respect to it in the prosecution evidence. The accused was posted to Miani only six months before the occurrence and it is not understood as to how did the accused suddenly become man of loose character so that the deceased could protest against it. It is in the statement of the doctor that the deceased had a child of eight months in her womb and under the circumstances the statement of the mother that she brought the deceased to her house for delivery as there was nobody in the house of the accused to look after the deceased seems to be plausible. It is common knowledge that in our society the middle class and especially in villages the mother either goes to the house of the daughter or brings her to her house in such like cases The presence of the deceased in the house of her parents could not therefore on the ground that she was not pleased with her husband on account of his character. It is more probable that she was brought by her mother for delivery as alleged by the mother. On the other hand it is in the statement of Malak P. W. that the brother‑in‑law of his wife Mst. Pathani, namely the father of Karam Ali P. W. and a brother‑in‑law of the said Karam Ali were murdered for which Taja the real uncle of the two accused was charged. No it can also be argued that the deceased might have been brought by her parents to their house on account of this enmity. If this be‑ taken as correct then if there was a motive for the offence then there was equally a motive for a false charge. The question of motive in the circumstances of this case cannot therefore be taken as a ‑corroboratory piece of evidence. Now coming to the ocular testimony of the three P. Ws. two of them, namely, Mst. Pathani and Akbar at the trial flatly denied having seen the occurrence. Reliance bad been placed by the prosecution on the statements of these P. Ws. before the committing Magistrate which have been treated as evidence in the case under section 288 of the Code of Criminal Procedure. It is contended on behalf of the prosecution that the two P. We. had soon the occurrence and had therefore deposed to fact correctly before the committing Magistrate and that later on they war Somehow won over and made to resile from their statements and the subsequently their statement before the committing Magistrate be relied that such like statements can be relied upon but then the Courts are not bound to rely on such statements and each case has to be judged according to its peculiar circumstances. In this case Mst. Pathani was the mother of the deceased and it is highly improbable that she could have been prevailed upon to resile from her statement if she had actually seen the occurrence especially when the accused was not in any way otherwise related to her. It is also highly improbable that she could have accepted the innocence of Akbar accused on the basis of local reconciliation it she had actually seen him giving axe blow to herb daughter. This cannot be the only probability that she was prevailed upon to resile from her statement. It is also probable that soon after the occurrence, in the heat of passions, she charged the accused on suspicion, but when later on it dawned upon her that the accused were innocent she resiled from her statement. So far as Akbar P. W. is concerned he clearly appears to be a chance witness. His village was distant 3 miles from the spot and he had no business to be on the spot at Deegar time especially when he had been involved in murder cases as deposed to by Malak P. W. If he wanted to have a round of the lands of his master as alleged to by Malak P. W. he would naturally have come earlier so as to reach back his village early. Furthermore if he could be prevailed upon by his master Akram landlord of Malak P. W. to resile from his statement then he could also be prevailed upon by his master in the first instance to give false evidence. It is more plausible in the circumstances of the case that he was made a false witness by his master in the first instance and when it became clear that the accused had not been seen by any body and were innocent he was made to resile. In this connection the following passage from the statement of Malak P. W. is worth perusal. "It is correct that 10/11 years ago, Hamid, a brother of Ikram Ullah and I and Ikram Ullah aforementioned were challaned for assaulting and keeping in confinement Allah Yar son of Ullah of Pind Makkoo. It is also correct that some time after that occurrence that Allah Yar and others fired at Hamid and his brothers Akbar and Ikram Ullah and I was an eye‑witness in that case. It is incorrect to suggest that since I always helped Ikram Ullah and his brothers in the criminal cases that they have provided the services of Akbar P. W. to become an eye‑witness in my case and that in fact he was not present there. Pind Makkoo is at a distance of three miles from my Dera Akbar P. W. resides at Pind Makkoo with Hamid and Ikram Ullah." In view of the above circumstances it is therefore not sale to place reliance on the statements of these two P. Ws. before the committing Magistrate and these are therefore kept out of consideration. We are therefore left with the solitary statement of Malak P. W. The murder vas apparently committed by two persons, for, it does not stand to reason that one person carried both a gun and a hatchet and after shooting the deceased then gave him a hatchet blow. Now if this Malak P. W who was the father of the deceased had seen the 2 accused murdering the deceased in the manner alleged in the F. I. R. it is highly improbable that he could have accepted the innocence of Akbar. How on earth could h accept the oath of his relation Ahmad about the innocence of Akbar when he himself had seen Akbar giving an axe blow to his daughter. The fact that he accepted Ahmad as Main, agreed giving him oath and then accepts his version clearly shows that he Malak P.W. had not seen the occurrence. At any rate the solitary statement of Malak without any corroboration in the circumstances of the case especially when his wife did not support him and when it was not relied upon so far as Akbar accused was concerned cannot be considered sufficient for bringing home the charge to the accused beyond a reasonable doubt. Giving the accused the benefit of doubt I would, therefore, accept his appeal, set aside his conviction and sentence and acquit him. In accordance with the view of the majority, the appeal is dismissed. Appeal dismissed.