1988 PLP 1301 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal by leave of the Court has arisen from the judgment and order dated 6‑2‑1980, passed by the Lahore High Court, whereby Criminal Appeal No.891 of 1979 of the appellant against the judgment dated 9‑8‑1979 of the Additional Sessions Judge, Faisalabad, convicting him under section 304, Part I, P.P.C. for the murder of Muhammad Munir and sentenced him to 7 years R.I. with a fine of Rs.1,000/‑ if realized, to be paid to the heirs of the deceased, or in default further R.I. for one year, was dismissed by the impugned judgment. Brief facts of the case according to the F.I.R. are stated to be that on 21‑4‑1977, at morning time Muhammad Munir (deceased) alongwith his brother Muhammad Rashid (PW.9) were cutting wheat crop from Killa No.5/6 of Square No.11, situate in Chak No.137/RB, within the area of Chak Jhumra, Police Station District Faisalabad, when Ghulam Rasool, Muhammad Sharif sons of Hussain Bakhsh and Muhammad Siddique son of Ahmad accused armed with .12 bore guns appeared on the scene. Ghulam Rasool raised lalkara that they would teach a lesson for cutting wheat crop. The moment the deceased stood up, Ghulam Rasool fired a gun shot which hit the deceased on the head. The second shot fired by Muhammad Siddique appellant which hit the deceased on the neck. The shot fired by Muhammad Sharif, however, missed the deceased. As a result, the deceased fell down on the ground. The three assailants continued firing. In the meantime Asghar Ali (PW.10) (the first cousin of the deceased) and Inayat (not produced) came to the spot and started raising alarm. All the accused while firing indiscriminately decamped from the scene of occurrence. Muhammad Rashid (PW.9) brother of the deceased also came to the spot. The deceased was taken to the hospital at Chak Jhumra in injured condition for medical examination. On the same day at 10‑45 a.m. Dr. Iqbal Ahmad Javed (PW‑1) examined Muhammad Munir (deceased) who was then alive and found three injuries on his person. The injuries were kept under observation. All the injuries were caused by fire‑arm weapon and were declared by the Doctor as dangerous to life. The Doctor informed the S.H.O. vide his letter Ex.PB, about the condition of the deceased and requested him to record his statement. The letter was received by A.S.I . Shabbir Abbas Shah (PW‑11) who went straightaway to the hospital and after having inquired from the Doctor that the deceased was in a fit condition to record his statement and took down his statement at 11‑30 a. m. which constitutes the F.I.R., on the basis of which a case under section 307/34, P.P.C. was registered against the abovementioned accused. A.S.I. Shabbir Abbas Shah (PW‑11) went to the spot, wherefrom he collected blood‑stained earth from the place of occurrence, matte it into a sealed parcel vide recovery memo. Ex.PK. He also got prepared the site plan Ex.PN and inquest report Ex.PO. On 23‑4‑1977 at 8‑00 a.m. he arrested appellant Muhammad Siddique and Muhammad Sharif acquitted accused. On 25‑4‑1977, while in police custody the appellant led to the recovery of the single barreled .12 bore gun Ex.P‑3 from inside his dhari, situate in the area of Chak No.137/RB and the same was taken into possession by the A.S.I. vide memo. Ex.PM. Ghulam Rasool accused was arrested by the said A.S.I. on 29‑4‑1977. No recovery was effected at the instance of Muhammad Sharif and Ghulam Rasool acquitted accused. The motive for the alleged occurrence is that the father of Muhammad Munir deceased had mortgaged 5 acres of land to Hussain Bakhsh, father of Ghutam ttasool accused and its possession was taken back in the year 196b and the deceased had been in seif cultivation of the aforesaid land since last year. Ghulam Rasool accused did not like the act of Muhammad Munir deceased. On 28‑6‑1977 at 4 p.m. Dr. Iqbal Ahmad Javed (PW‑1) sent a Rukka to S.H.O. Chak Jhumra Ex.PD that Muhammad Munir had died. After the death of Muhammad Munir (deceased) the offence was altered from section 307/34, P.P.C. to section 302/34, P.P.C. On the same day at 5‑30 p.m. the said doctor ,performed autopsy on the dead body of the deceased and found three injuries on the dead body. The doctor opined that the cause of death was peritonitis which was complication of paraplegic and paraplegia was a complication of injury No.3. The probable time between causing of injuries and death was 68 days and between death and post‑mortem about 11 hours. After completion of the investigation, the accused were challaned by Nazir Hussain S. H .O. Police Station Chak Jhumra under section 302/34, P.P.C. to stand their trial. The accused pleaded their innocence. The prosecution in support of its version has examined 19 witnesses. In consequence of the trial, the learned Additional Session Judge, Faisalabad vide his judgment, dated 9‑8‑11479 found the accused Ghalam Rasool and Muhammad Sharif not guilty of the charge and acquitted them. However, the learned Additional Sessions Judge hold that the case against Muhammad Siddique appellant falls under the exceptions and the death the deceased was caused while he exercised his right of defence of property, the accused, therefore, cannot be held guilty for the murder of Muhammad Munir deceased and convicted under section 302 P.P.C but he convicted the accused under section 3u4 Part I of the P.P.C. and sentenced him to 7 years R.I. Fine of lts.l,000, it realized, to be paid to the heirs of the deceased or in default 1 year further R.I., was also imposed on the appellant. The appellant challenged his conviction and sentence before the Lahore High Court and a learned single Judge of the High Court, who heard the appeal dismissed the same arid maintained his conviction and sentence. Hence this appeal by leave of this Court. We have heard the learned counsel for the parties and perused the record of the case. Before us the learned counsel for the appellant urged that the nigh Court failed to take to consideration the fact that the gun recovered at the instance of the appellant was an unlicenced gun which was not connected with the commission of the crime because neither empties were recovered from the spot nor the gun was sent to the Ballistic Expert for examination and there is no evidence on record to support the recovery of the said gun. Mere recovery of a weapon of offence unless corroborated by any other evidence is not sufficient to make it a case of conviction. It is a matter of record that a case was registered against the deceased Muhammad Munir at the instance of Ghulam Rasool acquitted accused for causing injuries to one Allah Rakha in which the conviction order was passed by M.I.C. P.W. Inayat got registered a case under section 325, P.P.C. against Ghulam Rasool and Muhammad Sharif acquitted accused and Liaquat son of Ghulam Rasool, in which case Muhammad Rashid (PW‑9) real brother of the deceased and others were prosecution witnesses. The deceased also got registered a case under section 326, P.P.C. against Ghulam Rasool and Muhammad Sharif the present acquitted accused and others. A.S.I. Shabbir Abbas (PW‑11) had deposed that this case was found false after investigation. These facts have proved that a prolonged enmity and hostility existed between the parties. It is a principle of law that a tainted piece of evidence cannot corroborate another tainted evidence and when it is proved that the deceased party is on inimical terms with the accused party and under the circumstances his statement cannot be believed without independent corroboration. Our assessment of the evidence is that the prosecution had withheld from the Court material details of the occurrence and for that matter the murder of the deceased is shrouded in mystery. In the absence of clear and straightforward evidence brought by the prosecution on record, we have come to the conclusion that the prosecution have charged the appellant alongwith the acquitted accused, merely on account of enmity with them. But in a criminal case mere enmity of the complainant party with the accused party will not carry credence against the accused unless the prosecution is able to bring on record ocular as well as circumstantial evidence of unimpeachable character. Keeping in view previous enmity and false cases registered against the appellant and this acquitted accused, weightage cannot be attached to the complaint Ex. PH which was after a lapse of 68 days treated as dying declaration where the names of the appellant and his two acquitted accused were clearly given. As the record reveals that at the time of recording the dying declaration about six persons were present by the side of the Muhammad Munir deceased and the Doctor was not present. The deceased expired after a lapse of 68 days but the Investigating Officer could not produce him before the Magistrate. There is also instance of false case registered against the accused by the deceased, a few days prior to the occurrence. This shows that the deceased was a person of questionable integrity and his dying declaration cannot be used as corroboration of the statements of the eye‑witnesses. From what has been discussed above, it is clear that the prosecution has not come forward with the real episode of the occurrence. In the circumstances, the guilt of the appellant in the present case is not free from doubt. We find that the evidence against the appellant is in no way distinguishable from the evidence given against Ghulam Rasool and Muhammad Sharif co‑accused, who were acquitted as the prosecution case has been disbelieved against them, it deserves the same treatment as regards the appellant. As a result, we hold that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Consequently, we set aside the impugned judgment of the High Court and while accepting this appeal, we acquit the appellant who is already on bail and his bail bonds are discharged. M.I./M‑454/S Appeal accepted.