1989 PLP 3712(2) (MLD)

(1) Lacerated punctured wound 2.5 c.m. in diameter with irregular and ragged edges 1 c.m. right to mid line on the back of chest at the level of first thoracic vertebrae. (2) Lacerated punctured wound 2.5 c.m. in diameter with irregular ragged on back of left chest below inferior angle of scapula. In his opinion, both the injuries were individually and collectively sufficient to cause death in ordinary course of nature. He is further of the opinion, that the time between the injuries and death was instantaneous.

5. The main evidence against the appellants is that of complainant Nazar Hussain (Exh.9). He has deposed as narrated in the above prosecution story. According to him, he and his brother deceased Raj Muhammad, were going in the Bus to Shahdadpur to give clothes to their father Khan Muhammad who was locked up in Shahdadpur Sub-Jail, as he was facing trial for the murder of one Loung, a relative of the appellants. According to him, Loung's murder took place about 15-20 days prior to this incident because of dispute over rotation of water in which both the parties received injuries and as such counter-cases have been filed. He further states that the acquitted accused Photo and Aziz were also travelling and that on the way the present two appellants also boarded the Bus. He also states that the acquitted accused after pointing out told the appellants that here was the son of Khan Muhammad their enemy sitting and that they should kill him and not spare him, whereupon the appellant Faqiro took out .12 bore pistol from the fold of his trouser and shot at the deceased from behind, who tried to stand up, but was caught by appellant Ali Khan. He further states that appellant Faqiro fired second time at the abdomen of the deceased and the deceased fell down. The accused persons then ran away. He the complainant) then sent the conductor of the Bus to inform his relatives and when P.Ws. Jan Muhammad and Achar came there he narrated the incident to them and then went to lodge the F.I.R. at P.S. Sarhari.

6. It is submitted by Mr. Muhammad Hayat Junejo learned counsel for the appellants that in view of the fact that there is admitted enmity between the parties, the evidence of sole eye-witness requires corroboration from some independent and unimpeachable sources. He further submits that such corroboration is more necessary in the instant case, as the complainant admits that prior to the incident the appellants did not know him or his brother the deceased. It is submitted that according to the complainant, the appellants murdered the deceased only because he was pointed out by acquitted accused Photo and Aziz, who instigated the murder. It is submitted that Photo and Aziz were also challaned by the Police in this case alongwith the present appellants, but they were acquitted by the learned trial Judge, who disbelieved the prosecution case against them holding as under:- "There is no corroborative piece of evidence against accused Photo and Aziz. Accused Photo has produced documentary evidence to show that prior to this incident there was civil litigation between the Palhs and complainant party. It cannot, therefore, be ruled out that these two persons might have been named as culprits who pointed out the deceased. It is the duty of prosecution in such cases to establish that present accused Aziz and Photo had pre-planned with co-accused, that they will board bus and that they will point out the deceased. There is no evidence of any pre-planning and the mere allegation that they pointed out deceased is not m itself sufficient to hold that accused Photo and Aziz can be convicted on a capital charge without any corroborative piece of evidence:'

7. It is submitted that if the evidence of the complainant that the acquitted accused had pointed out the deceased was disbelieved by the trial Court, the appellants, who admittedly did not know the deceased prior to incident, could not have committed this murder.

8. Mr. Muhammad Hayat Junejo learned counsel for the appellants has relied upon the case of Ghulam Sikandar v. Mamroz Khan PLD 1985 SC 11 wherein their Lordships have observed as under:- "It is often said that the principle falsus in uno falsus in omnibus is not applicable in Pakistan. The same principle has been described in some cases slightly differently; namely, that the testimony of an eye-witness should not be treated as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is hallmark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous `case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 propounded by late Chief Justice Muhammad Munir, that where it is found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the-other accused."

9. In the instant case the prosecution sought to corroborate the evidence of the complainant by examining P.W. Azeem (Exh.22). P.W. Azeem also states to be in the same bus when the incident took place and fully supports the complainant. He has also implicated co-accused Photo and Aziz alongwith the appellants. He admits in his cross-examination that the complainant is his caste fellow and resides in the same village. Admittedly the name of this witness does not transpire in the F.I.R. P.W. Allah Dad, the Investigating Officer has admitted in his cross-examination that the name of P.W. Azeem did not transpire in the police statements of Jan Muhammad, Achar, Allah Jorio and Gul Hassan. The evidence of this witness has been disbelieved by the learned trial Court on the ground that his name did not transpire in the F.I.R. and that his statement was recorded by the Police after four days of the incident. The learned Trial Court has relied on PLD 1962 (W.P.) Kar. 800 and PLD 1965 (W.P.) Kar. 76. 1 am entirely in agreement with the learned trial Court that the evidence of this witness cannot be considered as corroborative piece of evidence. He states to have left the scene of offence within half an how which looks unnatural in view of the fact that the deceased was his caste-fellow and belonged to the same village. In his deposition he has also not shown any urgency which required him leaving the scene of offence so soon after the incident.

10. The incident admittedly took place in a Bus in which there were number of persons including the Driver, Conductor and others. None of them has been examined by the prosecution. The Conductor was allegedly sent by the complainant to call persons from the village, who brought Jan Muhammad and Achar after which the complainant went to Iodize complaint. It is submitted by Mr. Muhammad Hayat Junejo that from the circumstances of the case, it appears that even the complainant was not present in the Bus, but came after the fact of incident was known in the village when the Conductor went to inform them. It is submitted that had the complainant been present the appellants would not have spared him, because he was also son of Khan Muhammad, who allegedly murdered Loung to avenge whose murder, this incident is alleged to have taken place. It is further submitted that this presumption is further strengthened from the fact that the evidence of the complainant in the Court is in, conflict with the F.I.R. and the medical evidence. According to the complainant, the second shot was fired by the appellant Faqiro at the abdomen of the deceased, whereas the medical evidence shows both the shot injuries on the back of chest of the deceased. However, it cannot be disputed that under the facts and circumstances of the present case strong corroborative piece of evidence is required.

11. The prosecution further seeks corroboration from the evidence of P.W. Jan Muhammad, who has stated only what he was informed by the complainant. What Conductor told him is not admissible because the Conductor has not been examined. The evidence of the complainant cannot be corroborated by the evidence of a witness, who states what the complainant told him. Such a corroboration cannot be considered as unimpeachable or independent. It may also be pointed that admittedly the Bus belonged to P.W. Achar, a relative of the complainant and under such circumstances at least the Driver, Conductor and Cleaner of the Bus would have come forward to give evidence, and their non- examination also raises presumption against the prosecution.

12. The only other corroborative piece of evidence on which the prosecution can rely is the alleged recovery of blood-stained clothes from the person of both the appellants and also the alleged recovery of pistol with an empty from appellant Faqiro. The Investigating Officer P.W. Allahdad (Exh.24) states that on 10-7-1985 he arrested appellant Ali Khan in presence of Mashirs Ali Muhammad and Haroon and secured blood-stained Shalwar and shirt from his person which' he sealed and prepared such Mashirnama (Exh.19). He then arrested appellant Faqiro and secured blood-stained shirt and Shalwar from his person, which he sealed in presence of aforesaid Mashirs and prepared such Mashirnama (Exh.20). He further states that appellant Faqiro voluntarily led him and produced a country-made pistol from the back of his house which was secured and he found one empty in the country-made pistol. He also states to have secured a live cartridge. He prepared such Mashirnama, which is Exh.21.

13. Mashir Ali Muhammad has been examined as Exh.17. He has produced and proved the said Mashirnamas. He is Mashir of all the Mashirnamas including Mashirnama of the scene of offence, inquest report, etc. He also states that the Police secured blood-stained clothes from both the appellants and prepared such Mashirnamas and also secured the pistol containing one empty which was produced by the appellant Faqiro.

14. The Investigating Officer P.W. Allah Dad has also produced the Chemical Analyser's report which is Exh.25 which shows that the clothes secured from the appellants were stained with human blood and has also produced the Ballistic Expert's report Exh. which-shows that the empty secured from appellant Faqiro was fired from the pistol secured from the said appellant.

15. Mr. Muhammad Hayat Junejo has submitted that the Ballistic Expert's report has no evidentiary value, as the empty was not secured from the scene of offence and therefore, it cannot be said that the weapon which was used for committing murder of deceased Raj Muhammad was the said country-made pistol allegedly secured from the appellant Faqiro. He also submitted that country-made pistol can contain only one cartridge whereas the appellant Faqiro is alleged to have shot the deceased twice. It is further submitted that the complainant has not stated in the F.I.R. or in his deposition that appellant Faqiro re-loaded the pistol and had he reloaded the pistol, the empty would have fallen in the Bus, but no such empty was secured from the Bus. It is further submitted that the complainant who is the only eye-witness, examined by the prosecution, does not state that the appellant put the empty in his pocket and the second empty was not been secured from the appellant. It is submitted that this circumstance also points out to probability that the complainant did not witness the incident.

16. In view of the fact that no empty was secured from the scene of offence, the recovery of the pistol even if believed, would not prove that the murder of the deceased was committed with this weapon, and therefore, this piece of evidence also does not have such evidentiary value.

17. It is further submitted by Mr. Muhammad Hayat Junejo learned counsel for the appellants that the incident is alleged to have taken place on 9-7-1985 at 8.30 A.M., whereas the Mashirnama shows that the appellant Ali Khan was arrested on 10-7-1985 at 1.30 P.M. when the blood-stained clothes were removed from his person by the Police and appellant Faqiro was arrested at 2.00 P.M. on 10-7-1985 from whose person also the blood-stained clothes were recovered. It is submitted that the appellants, who are alleged to have committed a cold-blooded murder and then safely went away from the place of incident would not have kept wearing the blood-stained clothes for more than 30 hours waiting for the Police to recover the same from their person. It is further submitted that the appellants had enough time to either change, destroy or wash the clothes and besides, the month of July is very hot in the interior of Sind and it would be impossible for a person to keep blood-stained clothes wearing in such hot days for more than 30 hours. It is contended that these clothes have been foisted upon the appellants. Mashir Ali Muhammad admits that he resides in the village of the complainant and he is of the same `Bradri' but denies his relationship with the complainant. It is admitted by the complainant in cross-examination that Mashir Ali Muhammad is Kamdar of Haji Fateh Muhammad, who is cousin of his father and that Mashir Haroon is brother of P.W. Achar. The complainant also admits that Achar is his distant relative and that he also was in the Bus in which he was travelling. The Investigating Officer P.W. Allahdad has stated in his cross-examination that he did not know that Mashir Haroon was near relative of the deceased, although he knew Haroon prior to the incident.

18. Mr. Muhammad Hayat Junejo has relied upon the case of Rasool Bux and others v. The State 1980 SCMR 225 wherein their Lordships have observed "The trial Court had relied, for the purpose of corroboration, on the evidence produced by the prosecution about the motive for the murder, but this evidence has no corroborative value, because it comes from the mouths of the very witensses whose evidence requires corroboration." It was further observed "I am surprised that the learned Judges of the High Court were so impressed by a recovery which was witnessed apart from the Investigating Officer, only by the relations of the complainant. The learned Additional Advocate-General submitted that the Police might not have been able to obtain independent witnesses as Mashirs. Now no doubt it might some times be difficult for the Police to obtain independent witnesses as Mashirs, but if so, it is for the prosecution to explain how it could not obtain an independent witness as a Mashir."

19. It is submitted that in the instant case also both the Mashirs are from the village of the deceased; belong to his `Bradri' and also have some relationship. They do not belong to the village of the appellants from where the recovery was I made. It is further submitted that admittedly appellant Ali Khan was secured from the Otaq of Haji Pandhi, but even this Haji Pandhi has not been made a Mashir. It is also admitted by the Investigating Officer, P.W. Allahdad that the house of appellant Faqiro is about two furlongs away from the house of Ali Khan though admittedly Mashir Haroon was already known to the Investigating Officer, still he did not take any steps to procure independent Mashirs, nor has he given any explanation for failing to procure independent witnesses. 20. 1n the case of Muhammad Afzal v. The State 1983 SCMR 1 it was observed "the recovery becomes heavily doubtful for the reason that no disinterested and respectable person of the locality was made to join in the investigation to prove the recovery".

21. On recapitulating the evidence against the appellants it may be found that there is only the evidence of one alleged eye-witness viz. complainant, whose presence also at the spot for the aforementioned reasons is not beyond doubt or suspicions. The other alleged eye-witness has rightly been disbelieved by the learned trial Judge. The presence of the acquitted accused and the part played by them, as alleged by the prosecution, has also been disbelieved by the learned trial , Court and they have been acquitted.

22. Under the circumstances the arguments of Mr. Muhammad Hayat Junejo learned counsel for the appellants have great force, that if the complainant and the deceased were not known to the appellants, as alleged by the complainant, then how and why they should have picked out the deceased for murder. The parties admittedly reside at a distance of one mile from each other and one mile in N4afussil is not such a distance that the parties would not be normally known to each other specially after the incident of the murder of Loung. If the parties were known to each other, then the question arises as to why the deceased was picked out for being murdered and why the complainant was spared when he was also son of Khan Muhammad, who allegedly committed murder of Loung.

23. The evidence of Jan Muhammad as pointed above cannot be considered corroborative of the evidence of complainant with respect as to who committed the murder. The recovery of blood-stained clothes from the person of the appellants after 30 hours of the incident during which time they had all the opportunity to waste, change or destroy the blood-stained clothes is not above suspicion specially when there is no independent Mashir of the recovery. The conduct of the Investigating Officer in knowingly making the Mashirs of recovery those persons, who belonged to the village and `Bradri' of the deceased and also were related to the deceased and the complainant indicates that either the Investigating Officer was not serious in investigating the case or he had not acted honestly. Such recovery under such circumstances loses all its corroborative value. The alleged recovery of pistol suffers from similar defect as it is also not witnessed by any independent witness and besides there is no evidence connecting the pistol allegedly recovered from the possession of appellant Faqiro with the murder of the deceased. In the case of Lalan and others v. The State 1976 PCr.LJ 52 a Division Bench of this Court has given benefit of doubt to the accused and acquitted them where Mashirs were related to the complainant party and ocular evidence was wanting corroboration. It was also held that "it was not safe to base conviction solely on ocular evidence without corroboration".

24. Keeping in view all the. above facts and circumstances, in my opinion, the prosecution has not been able to prove guilt of the appellants beyond reasonable doubt and the appellants are entitled benefit of doubt. I accordingly accept the appeal and acquit the appellants. Appellant Faqiro is also acquitted of the conviction and sentence under Arms Ordinance. Both the appellants are ordered to be released forthwith unless required in any other case. S.A./A-544/K Appeal accepted.