1980 P Cr (PLP)

On the 8th November, 1973, a little after morning prayer's call, Farid Khan left his house to offer morning prayers in a nearby mosque. At a place distant about 8 or 10 paces from the house, he sat on a vacant site to make water when in the meanwhile, the appellant armed with a pistol appeared there and fired a shot at him which hit the latter felling him down on the ground. Rustam Khan P.W. 2, a step‑brother of Farid Khan, and Sardar Mohammad P.W. 7, with some others who were then in the mosque rushed to the scene of occurrence. Farid Khan was found seriously injured and was not in a position to speak. He breathed his last soon after. Rustam Khan P.W. then proceeded to the police outpost at Shamozai, distant 3/4 furlongs from the place of occurrence, where his First Information Report was recorded at 6.30 a. m. on the morning of 8th of November, 1973, by Assistant Sub‑Inspector Police, Mir Said P,W.

8. The Sub‑Inspector, after despatching the First Information Report to the Police Station, Bari Kot, for the registration of a case, proceeded to the scene of offence. Before inspecting the spot, he went to the house of Farid Khan where his dead body was lying. He prepared the injury state ment Exh. P.W. 1/1 and Inquest Report Exh. P.W. 8/1. He then inspected the spot and prepared a site plan Exh. P.B. The Assistant Sub‑Inspector recovered Chappal Exh. P. C. allegedly belonging to the accused and took the same into possession vide Memo. Exh. P. D. During those days, Doctor Saved Yousaf Shah P. W. 1 was posted as Medical Officer, Civil Hospital, Bari Kot. At 1 1‑50 a. m. on 8th of Novem ber, 1973, he examined the dead body of Farid Khan deceased in the latter's house and on superficial examination found an entrance wound caused by a fire‑arm, on the back of left side of chest in‑between the sixth and seventh ribs, and a lacerated wound on the left eye‑brow. Death, according to the doctor, was due to internal injuries and haemorrhage. The accused absconded after the occurrence. The Station House Officer, Police Station, Bari Kot, Rehan Khan P.W. 3. who partly investi gated the case recorded statements of some of the prosecution witnesses and initiated proceedings against the accused under section 204, and sections 87/ 88 of the Criminal Procedure Code, After completing the investigation, he presented complete challan to Court, under section 512,. Criminal Proce dure Code. The accused was apprehended on the first May, 1976 and was thereafter sent up for trial. The prosecution examined 8 witnesses at the trial to support its case. In his examination in the trial Court, the accused denied each and every allegation put to him and he also denied having absconded after the occurrence saying that he had gone to Swabi for labour prior to the occurrence and that the absence from the village was not the outcome of the murder of Farid Khan. No evidence, however, was led in defence. There can be no doubt that Farid Khan died an unnatural death. The evidence of Dr. Syed Yousaf Shah who examined his corpse discloses that he had fire‑arm injury on the back of the left side of chest between the sixth and seventh ribs. This injury, according to the doctor, was fatal. It is thus obvious that Farid Khan died as a result of injury received by him on the night between 7th and 8th of November, 1973. The question with regard to the time of occurrence shall, however, be determined in our subsequent discussion. The moot question in the case, however, is as to whether the appellant can, in the light of the evidence available on the record, be said to have been proved to be the murderer of Farid Khan. This evidence consists of the statements of two alleged eye‑witnesses, namely, Rustam Khan P. W. 2, and Sardar Whamm4d P.W. 7, and the statement of Gul Badshah P.W. 5 who claimed to .have came ‑,across the appellant while the latter was in the process of running'' away after the occurrence. Then there is evidence of motive and abscondence coming out of, the mouths of Mst. Taj Mahala P.W. 6 and Rehan Khan Sub Inspector P.W. 3r respectively. This is, in fact, the total evidence for the prosecution in the base on which reliance can be placed by the prosecution to support the. conviction of the appellant. Rustam Khan, Sardar Mohammad, and Gul Badshah P. Ws are apparently disinterested witnesses and from the evidence on record, it can be said that they had no interest in the prosecution. The trial Judge made this consideration as the sole basis for holding the appellant guilty of the murder of Farid Khan forgetting at the same time that in the administration of criminal justice, want of interest in the prosecution does not by itself stamp the evidence of a witness with truth and that the superior Courts in this country have repeatedly adverted to this cardinal principle of criminal jurisprudence that it is the duty of the Judge who holds the trial to scrutinise the prosecution evidence on its own merits in each case. It is also well settled that the weight which is to be attached to the testi mony of a witness depends, in a large measure, upon various considera tions some of which are that on the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. If these elements are wanting in the testimony of a witness, however, independent he may appear to be him evidence cannot be relied on in the decision of criminal cases. Since the trial Court did not at all consider this important aspect of the matter, it inessential than we should examine for ourselves all the relevant facts and circumstances in order to find out if the evidence produced by the prosecution would be sufficient to secure the conviction of the appellant on a capital charge. We proceed, therefore, to the consideration of the evidence in the case, so far as is necessary. In this case, there are two important points which have attracted our attention. The first of these points has reference to the time of occurrence while the other relates to the occurrence itself. The first point is undoubtedly of a vital importance for the decision of this case. Before we proceed, however, to determine this point, we would like to make it clear that the prosecution has not been honest in disclosing the correct time of occurrence obviously because it did not suit the pro secution for the reason that the question of identification of the assailant of the deceased has assumed considerable importance in this case. It appears that the occurrence took place in the darkness of night, but the prosecution in order to overcome the difficulty with regard to the identi fication of the assailant, made a vain attempt to show that it had dawned at the time of occurrence and in that situation, there could be no difficulty in identifying the assailant. In this connection, reference may be made to the statements of the concerned prosecution witnesses made at the trial of the case. It was stated by Rustam Khan P. W. 2 in his statement recorded by the trial Court on 29th November 1978 that it was dawn time when the occurrence took place. He was, however confronted with his earlier statement dated 6th August 1978 wherein he had said in most unequivocal words that it was dark ‑ when the incident took place. . Likewise, Sardar Mohammad P. W. 7 also stated in his statement dated 12th December 1978 that it had dawned when the occurrence took place. However, in his earlier statement dated 26th August 1978 with which he was duly confronted, he had come forward with the version that it was dark when tfe incident had taken place. Gul Badshah P. W. 5 also stated at the trial that it was dawn time when he saw the accused running. At this stage, reference may also be made to the statement of Mst. Tai Mahala P. W:

6. In her statement dated 12th December 1978, she said that her husband Farid Khan deceased left the house after morning prayer's call to offer prayers in the mosque and that soon after, she heard the report of a fire shot. On cross‑examination, she, however, came for ward with the statement that on hearing the report of fire shot, she came out of the house with a lantern in her hand. From all this, what appears is that it was still dark when the occurrence took place and that it was incorrect to suggest that it had dawned at the time of occurrence. It ought not be repeated again that this position stands confirmed even by the earlier statements of Rustam Khan and Sardar Muhammad P. Ws. and the fact that Taj Mahala on hearing the report of a fire shot came out of the house with a lantern in her hand. It follows that the prosecution wit nesses tried to with:, told the actual position in their statements at the trial with regard to the time o occurrence and came forward with a false version that it bad dawned at that time. This they did deliberately with the sole object of showing that they could have no difficulty in identifying the culprit. The position that emerges from the above discussion is that the two alleged eye‑witnesses, namely, Rustam Khan P. W. 2 and Sardar Muhammad P. W. 7, and two other important witnesses, Gul Badshah P. W. 5 and Mst. Taj Mahala P. W. 6, told a lie on an important point, and tried to suppress a material fact with regard to the time at which the occurrence took place. It is well‑established rule of criminal law that when a witness tells a lie on an important point, which has a material hearing on the culpability of an accused, his evidence does not deserve credence. In order to be believed, a witness must come to Court with clean hands, and if he is found to have suppressed a material fact which goes in favour of the accused, his evidence must be rejected. Keeping this rule of law in view, we are of the opinion that the evidence given by all these witnesses with regard to the material aspects of the case does not deserve credence and cannot be made basis for the conviction of the accused. Even then, we propose to deal with the second point on its own merits. Turning now to the second point, it may at the outset be .stated that the house of the appellant is at point No. 5 shown in the site plan Exh. P. B. The deceased was at point No. I when he is said to have been 'tired at. According to the site plan, point No. 2 is the place from where the accused is said to have fired. It may be observed that the admitted position is that none of the prosecution witnesses saw the accused firing at the deceased. But even then point No. 2 has been shown as the place from where the assailant is said to have fired. In this connection, re ference may usefully be made to the statement of Rustam Khan P. W. 2 according to which he did not see the accused firing at the deceased. Almost to the same effect is the statement made by Sardar Mohammad P. W.

7. It will thus be seen that these two so‑called witnesses did not actually see the accused firing at Farid Khan. Rustam Khan P. W. 2 stated in most unambi guous words that he was informed by Shah Hussain, Gul Badsbah, Ghulam Muhammad, and Sardar Mohammad, that the accused had fired at the deceased. In other words, he does not claim to have seen the accused actually firing at the deceased. It is, however, alleged that soon after the occurrence, they saw the accused running away from the place of occur rence. We feel that the version so given is wholly false. It is in the statement of Rustam Khan P. W. that he was busy in ablution in the mosque when he heard the report of fire shot and that thereupon he rushed to the scene of occurrence and saw the accused running towards the road side. It is, .of course, admitted by him that he was in the mosque busy 'in ablution when he heard the report of a fire shot. Although it has been claimed by him that the place of occurrence was visible from the main door of the mosque yet it has not been alleged muchless has it been proved that from the place where he was sitting at that time, the place of occurrence was also visible. In the site plan, the place where Rustam Khan claims to have seen the accused running has not been shown'. Even if it be assumed for the sake of argument that he saw the assailant running while being present in the outer door of the mosque, it would not materially help the prosecution because in‑between this place and the place of occurrence there was a distance of about 30 paces and it is indeed very difficult for us to believe that he could identify the assailant in the darkness of night from that distance. The statement of Sardar Mohammad P. W. on the point is still more doubtful. He said that he saw the accused from his back from a distance of 20‑30 paces and still he was capable of identifying him. This distance was, however, given by him as 80/100 paces in his earlier statement with which he was confronted. Again, in his earlier statement, he had speci fically stated that he did not himself hear the report of fire shot. From this what appears is that Sardar Mohammad P. W was neither ‑ present in the mosque, nor was he near about the place of occurrence, at the time of the incident and it was for this reason that he was not in a position to hear the report of fire shot. Apart from this, he. could not possibly identify the assailant, firstly because he himself claims to have seen the assailant from his back; and secondly because the distance given by him was not less than 80/100 paces. In view of these circumstances, the statements of Rustam Khan and Sardar Mohammad. P. Ws. were not worthy of reliance. The statement of Gul Badshah P. W. 5 appears to be equally unreli able. In the site plan, he has been shown at point No. 11 at the time when the shot was fired this place, according to him, was at a distance of 60/70 paces from the mosque. The prosecution. have not shown the respective places at which Gul Badshah P. W. and the accused were when the former saw the latter. A reference to the site plan would show that points I and 2 are not visible from point No. 1 I and in‑between points I and 2 opt the one hand and point No. I1 on the other, there intervenes building of the mosque. Naturally, Gul Badshah could not see the accused firing at the deceased while being present at point No.

11. It will not be out of place to point out here that Gul Badshah P. W. 5 was even other wise not reliable witness as he came forward with a false version with regard to the time of occurrence saying that it was dawn time. Apart from what has been stated above, there are also some other circumstances which cast a grave doubt on the version of the prosecution as to the manner in which the occurrence is said to have taken place. In this context, it may be stated that the (rouse of the appellant is much nearer to the place of occurrence than the mosque. The persons present in the mosque, and Gul Badshah P. W. who claims himself to be at point No. 11, were undoubtedly not in a posi tion to see the persons present at points 1 and

2. If the accused had actually fired at the deceased, it would have been natural for him to hide himself from others and to. achieve this object, he would have in all probability rushed to his own house as on his way to the house, he could neither be seen by the persons (present in the mosque nor could he be visible to persons at point No.

11. The prosecution version that instead of running to his own house, he ran towards the mosque where a large number of persons had gathered does not appear to be natural and probable. Again, it is said that he had fired with a pistol. None of the prosecution witnesses came forward with the statement that he saw the pistol with the accused while he was running away from the place of occurrence. If the pistol was not with the appellant during that process, it must have been thrown by him in‑between point No. 2 and the place where he is said to have come across the prosecution witnesses. No pistol, however, was recovered from there which is indicative of the fact that this version advanced by the prosecution was a made‑up one. . Few words may be said about the motive and the abscondence. The prosecution case as set out in the First Information Report Exh. P. A, was that on the preceding evening of the day of occurrence, an altercation took place between Mst. Taj Mahala P. W. and the wife of the accused appellant and that in the meanwhile, the accused also appeared there and threatened Farid Khan deceased with dire consequences. From this, two things are sought to be proved. The first is that the accused had expressed his mind to teach a lesson to Farid Khan, and the second is that on that day, the accused was present in the village and his disappearance from the village after the occurrence was the result of his guilty conscience. There is no doubt that Rustam Khan and Mst. Taj Mahala P. Ws. came forward to support this position, but regard being had to the fact that they told lie on some important aspects of the case, we cannot persuade ourselves to accept their testimony with regard to the threat by the appellant and his presence in the village at the relevant time, as a gospel truth. But even ,f the statement of fact made by them is taken as true, it will not mate rially advance the prosecution case for the short and good reason that the prosecution having failed to connect the appellant with the commission of the offence, the mere presence of motive on the part of the appellant and his disappearance from the village for a pretty long time, would not by themselves suffice to hold him guilty for the murder of Fartd Khan. From what has been stated above, it is manifest that the prosecution have failed in proving its case against the appellant. The result, therefore, is that we accept this appeal, set aside the conviction and the sentence passed on the appellant and acquit him. He shall be set at liberty forthwith provided he is not required in any other case. The murder reference is, in the circumstances, not confirmed. Appeal accepted.