1983 P Cr (PLP)

Briefly stated, the Prosecution story is that one Mohammad Siddique was a proclaimed offender in a murder case while a case under section 216, A.D.C. stood registered against the respondent for harbouring the said offender. On 26th October 1978 at Police Station kawalakot, a Police Party consisting of Mohammad Khurshid, Head Constable, Imtiaz Hussain Shah, Mohammad Rashid and Tazeem Khan, Constables and headed by Maqbool Hussain, S. I., was constituted for the arrest of the aforesaid accused persons. The said party left for the accomplishment of the task entrusted to it and in the way stayed for some time in the house of Shafait Hussain, P.W. from where Mohammad Ayub deceased also accompanied them for its guidance and identification of the accused whose arrest was required. While in their way to the house of said Mohammad Siddique for arresting him, it all of a sudden confronted by the respondent armed with * 12‑bore gun, at about 5 a. m. on 27th November, 1978 when it was at a distance of about 200 yards from his house. The accused respondent shouted at them and enquired as to where they were going and upon a reply by Maqbool Hussain, P. W. that they were going to make arrest of Mohammad Siddique, a proclaimed offender, he fired a gun‑shot which hit the deceased on the left side of his chest resulting in his instan taneous death. The accused‑respondent was arrested on the spot and a 12‑bore gun alongwith an empty cartridge in its chamber was also recovered from him. The motive for murder was alleged to be a long standing enmity of the respondent with the deceased. The report of the occurrence was made by Maqbool Hussain, P. W. with the Police Station, Rawalakot which, after investigation, put up the challan against the accused‑respondent under section 5, Islamic Penal Laws Act read with section 302/353, A.P.C in the District Criminal Court, Poonch which acquitted the accused‑respondent by its order under appeal. We have heard the preliminary arguments of the learned counsel for the State as well as complainant. The learned counsel for the State has argued that the trial Court has committed an error in disbelieving the eye‑witnesses without assigning cogent reasons, especially when they being the employees of the Police Department, were independent and disinteres ted witnesses. We do not find any substance in this argument. The trial Court has disbelieved the ocular evidence on the ground that it consisted of material contradictions and discrepancies which cast serious doubt on its truthfulness. After going through the statements of the eye‑witnesses, we have reached the same conclusion to which the trial Court has come, as they are full of discrepancies and material contradictions and consist of unnatural assertions in presence of which no reliance can be placed on them so as to base any conviction on them. According to the prosecution, the occurrence took place in presence of five persons named above but out of them only three persons, namely, Maqbool Hussain,‑ S. I., Mohammad Khurshid, Head Constable and Imtiaz Hussain Shah, Cons table were produced before the trial Court and the remaining two were given up. We find that not only there are material contradictions in the state ments of the eye‑witnesses made before the trial Court but there are also discrepancies of serious nature in their statements made before the Police under section 161, Cr. P. C. and those got recorded before the trial Court. Maqbool Hussain, S. I., P. W. who lodged F. I. R. has stated before the Court that when they reached near the house of the accused, they heard the dog of the accused‑respondent barking near his house, whereas in the F. I. R. there is no mention at all of barking of the dog before or after the occurrence, near the house of the accused. In the statement made before the trial Court he has also stated that before the occurrence, he got himself identified to the accused by lighting a torch and that after a gun‑shot by the accused, he identified the accused by the torch light. But these important facts do not find any mention at all in the F. I. R. There are also material discrepancies in the F. I. R. and the statement of this witness made before the trial Court as to what happened and transpired between the respondent and the Police Party. In the F. I. R. it is stated that the accused bad already come near the place of occurrence from where he shouted as to where the policemen and Mohammad Ayub deceased were going, to which he had replied that they were going for the arrest of Mohammad Siddique, a proclaimed offender and that he should not make any noise whereas in the statement made before the trial Court, he has deposed that the accused had enquired from him as to who he (witness) was and on his reply that they were police‑men, the respondent had again enquired as to who he was and on his reply that he was a Sub‑Inspector of Police, the accused‑respondent had said that it was not Police but they were thieves and that where this Mohammad Ayub (by abusing him) was going. This witness has also deposed before the trial Court that after firing a gunshot, the respondent bad also pelted stones on them and that he had also said that they were not Policemen, but no such thing finds place in the F. I. R. It has also been noticed that this witness has made even contradictory statements about certain very important matters before the trial Court and has even gone to the extent of admitting that he had made false statement before the Court in respect of certain particular matters. Similarly, there are also certain material contradictions in the statements of other two eye‑witnesses, made by them before the trial Court and those recorded under section 161, Cr. P. C. Both these witnesses have deposed that the dog of the accused respondent had started barking outside the house of the respondent when they reached near his house but this material fact is altogether missing from their statements made under section 161, Cr. P. C. As regard contradictions and discrepancies appearing in the depositions of the eye‑witnesses on the material particulars, following are worth mentioning: ‑

1. Maqbool Hussain, P. W. stated that the accused‑respondent, all of a sudden, appeared on the scene at a distance of 20‑30 yards from them when they reached near the house of the respondent, whereas the other two eye‑witnesses produced by the Prosecution gave a different version in this respect. They stated that they heard the dog barking outside the house of the respondent when they were at a distance of about 200 yards from it and that they saw the respondent coming from his house towards them alongwith his barking dog, who fired at the deceased on reaching near them.

2. Maqbool Hussain, P. W. stated that the respondent had asked his as .to who they were and that where Mohammad Ayub deceased was going before firing a gun‑shot, whereas the version of the other two witnes ses is quite different. Imtiaz Hussain Shah. P. W. deposed that the respondent had also asked Mohammad Ayub deceased why he bad accompanied the Police and it was after this inquiry that the accused respondent had fired at him. As against the above statement, Mohammad Khursbid, P. W. stated that the accused‑respondent after coming out of his house, bad shouted there from and enquired as to where the Police men were going and also bad started abusing the deceased.

3. Maqbool Hussain, P. W. had said that after firing at the deceased, the respondent did not move at all and had surrendered himself for arrest without any resistance, whereas Imtiaz Hussain Shah, P. W. stated that after having fired at Mohammad Ayub deceased, the accused‑respondent had started running and that it was after some chase that the Police Party was able to catch hold of him.

4. Imtiaz Hussain, P. W. stated that when they saw the accused respondent coming towards them from his house with a gun in his hand they had hidden themselves in a'Nullah' but they stood up therefrom when the accused‑respondent came near them and his dog started barking. No such statement is made by either of the other two witnesses rather Mohammad Khurshid had specifically denied that they had hidden them selves in the `Nullah' just before the occurrence. Apart from the above flaws and weaknesses found in the depositions of the ocular evidence which go a long way to show that what the eye witnesses have stated, is not free from doubt, there are other circumstances which also render their depositions doubtful and unnatural. The occurrence is alleged to have taken place at 5 a. m. but from the evidence of the eye‑witnesses itself, it appears that the occurrence could not have taken place at the said time. It has come in the statement of Imtiaz Hussain Shah, P. W. that the Police party had left the house of Shafait Khan for the arrest of Mohammad Siddique, a proclaimed offender, at about 2.3C a. m. and it is also in evidence that the house of the accused‑respondent is hardly 1J miles away from the said house Thus, if they had started from the house of Shafait Khan, P. W. at 2.30 a. m. they would have reached the place of occurrence at about 3 a. m. as the journey involved between the two places, is hardly of half an hour. From the record of the case which includes copy of `roznamchu', it appears that on the night preceding the occurrence, five raiding parties were constituted at Police Station, Rawalakot to raid different places, for the arrest of Mohammad Siddique, a proclaimed offender. Maqbool Hussain, complainant who was entrusted with the investigation of the case registered under section 216, A. P. C. against the accused‑respondent, was assigned the task of raiding the house of respondent for his arrest. Thus the Police party beaded by Maqbool Hussain, P. W. was not supposed to raid the house of said Mohammad Siddique before raiding the house of the respondent and arresting him, who was alleged to be har bouring and supporting the proclaimed offender named above. In this background the version of the prosecution that while going to the house of Mohammad Siddique, the Police party was intercepted and fired at resul ting in the death of Mohammad Ayub, appears to be highly improbable and doubtful. In view of the above analysis of the prosecution evidence, an irresistible conclusion to which one comes, is that the ocular testimony in the case does not inspire confidence and no legal conviction can be based on it. It has been next contended by the learned council for the State appellant that the trial Court was not right in disbelieving the eye‑witnesses simply on the ground that two out of them were declared hostile at the request of the prosecution, especially when they had categorically stated that it was in their presence that the deceased was fired at by the respondent and killed. Legally speaking, it is correct that the mere fact that a certain witness turns hostile is not per se sufficient ground for not relying on his statement and the Court has to believe that part of the statement which appears to it to be worthy of reliance, after considering it as a whole. But, as stated earlier, the ocular evidence in the present case is otherwise of such a nature that it cannot be relied upon and thus by disbelieving the same the trial Court has committed no error of law and fact which needs any rectification. However, at the same time, the fact that out of five eye‑witnesses, two were given up by the Prosecution and the other two were declared hostile, shows that even in the eyes of pro secution, the eye‑witnesses were not truthful. 1t is also argued by the learned counsel for the State‑appellant that the trial Court has wrongly held that there was exchange of firing between the Police‑party and Mohammad Siddique, proclaimed offender, on the day of occurrence as there is nothing on the record to that effect. We do not find any force in this argument as well. From the statements of some of the prosecution witnesses, it is established that exchange of firing had taken place between Mohammad Siddique and the Police party, on the day of occurrence which went to raid his house to arrest him. Thus, the plea of the accused‑respondent taken in defence that the deceased was killed during the aforesaid firing cannot be ruled out of the realm of possibilities. It has been next contended by the learned counsel for the State apaellant that the finding of the trial Court that the F. I. R. was lodged with the Police Station after a considerable delay, is not correct. This contention is also devoid of any substance. From the statement of Imtiaz Hussain, P. W. who had carried the F. I. R. from the spot to the Police Station, it is clearly established that the said report was lodged atleast seven hours after the occurrence. He has stated in his deposition that he carried the F.

1. R. from the spot at 12 Noon and thus the incident having taken place at 5. a. m., there is definitely a delay of seven hours in making the F. I. R. This unexplained considerable delay in filing the F. I. R. does not rule out the possibility that it was manipulated and made after due thought and consideration. This fact casts a serious doubt on the prosecution story. The last contention of the learned counsel for the State‑appellant is that from the report of the Examiner of the Fire Arms, it has been proved that empty cartridge recovered from the chamber of the gun of the accused soon after the occurrence, was fired from .12‑bore gun belonging to the accused‑respondent but the trial Court has altogether ignored this piece of evidence which provides sufficient corroboration to the eye‑witnesses, account. This argument has also not impressed us as the recovery of the crime empty from the possession of the accused‑respondent is not proved beyond reasonable doubt. The witnesses of the recovery memo. Shafait Ali and Banaris who were close relative, of the deceased, have denied its recovery from the possession of the accused‑respondent in their presence. Moreover, there is no evidence that the pellets recovered from the body of the deceased were fired from the empty cartridge alleged to have been recovered from the possession of the respondent. Three pellets recovered from the deceased body were not sent to tie Examiner of Fire Arms. Even otherwise, when the ocular evidence was found to be unworthy of any reliance, the conviction of the respondent cannot be based merely on the recovery of empty crime from his possession. For the reasons love, it cannot be said that findings recorded by the trial Court in respect of prosecution evidence are speculative and of 19 artificial nature or are based on no evidence or misinterpretation off evidence. In our view, the trial Court has appreciated the evidence in line with the sound judicial principle and the grounds on which it has based acquittal of the respondent, are reasonable and sound. It is a settled principle that when the trial Court has disbelieved and rejected the evidence brought against an accused person, the appellate Court has to be extra cautious in accepting such evidence. No prima facie case is made out for summoning the respondent and accordingly the appeal is dismissed in limine. Appeal dismissed