1980 PCr (PLP)

6. Reverting to the second contention that the prosecution has failed to prove alleged motive and, therefore, an adverse inference is to be drawn against the prosecution case, it may be observed that the motive attributed which had allegedly prompted the accused persons to attack the deceased and the injured is said to be that Raheb had asked the deceased and the injured not to do any harvesting for Pir Muhammad. P. W. Pir Muhammad has deposed before the Sessions Court that the accused party had no dispute with him on land or over any other matter. It has not been brought on record by the prosecution what was the reason which had prompted accused Raheb to ask the deceased and the injured not to do any harvesting for Pir Muhammad. It may be observed that the learned Sessions Judge while discussing the question of motive found another motive though not urged by the prosecution namely, that Pir Muhammad's field where harvesting was done on the land of one Nizar Khwaja and that the deceased and the injured had remained haris on the land of said Nizar Kbwaja, and that the accused party was also haris of the aforesaid landlord, who bad allegedly terminated their tenancy. The latter motive which found favour with the learned Sessions Judge was not pleaded by the prosecution, on the contrary the accused in replies to the Court questions under section 342 of the Cr. P. C. had come out with the plea that they were falsely implicated at the instance of said Nizar Khwaja as they had differences with the said landlord. It may be observed that the aforesaid alleged motive, if any, the accused would have against said Nizar Khwaja and not against Pir Muhammad who was merely a tenant of the land like many other tenants. Nothing has been brought on the record as to when the tenancy in favour of the accused persons was terminated by said Nizar Khwaja, and what was the nature of dispute. In the absence of the material particulars the learned Sessions Judge, in our view, was not justified in relying upon the said motive as a piece of corrobora tion to the other testimony. It is an admitted position that the prosecution has tailed to adduce reliable evidence to prove the alleged motive attributed to the accused persons. It was urged by Mr. Ghulam Hyder Memon counsel for the appellants that as the prosecution had failed to prove motive alleged by it, an adverse inference should be drawn. Reliance was placed on the case of Hakimali and 4 others v. The State and another (1971 S C M R 432), in which their Lordships of the Supreme Court were pleased to hold that it is not necessary for the prosecution to set up a motive in every case but where the prosecution had set up motive and failed to establish it, then it is the prosecu tion whim must necessarily suffer on that account and not the defence.. Apart from the fact that in the instant case the prosecution has failed to prove motive in our view the nature of the alleged motive is not such which would have prompted the accused to use violence to the extent of causing death to two persons and injuries to three other persons. In our view the motive alleged by the prosecution as well as the second alleged motive found favour with the learned Sessions Judge are to be discarded.

7. Referring to the learned counsel for the appellants contention that the police did not conduct the investigation of the case properly, it may be observed that the above contention is not devoid of any force. There are many apparent reasons on the record which adversely reflect on the investiga tion conducted by the Police. In this regard the following are some of the facts which may be noticed (i) P. W. Miandad A. S. I. Police had deposed that he had conducted investigation of the case upto S‑6 p. m. on 11‑10‑1974 whereafter he handed over the papers to the S. H. O. P. W. Ashfaq Hussain Shah. Whereas P. W. Ashfaq Hussain Shah has deposed that he reached at the place of vardat on 11‑10‑1974 at about 3 p. m. and that he arrested the appellants accused at about 4‑30 p. m. on the same day. (ii) P. W. Ashfaq Hussain S. H. O. had deposed that when he arrested accused Raheb, Bachayo, Gut Hassan and Hashim at about 4‑30 p. m. the clothes of the person of accused Raheb and Hashim had blood stains. Whereas Mashirnama Exh. 38 mentions that the blood‑stained shirts belonged to accused Bachayo and Gut Hassan. The above recovery has been discarded by the learned Sessions Judge. (iii) That the incident is said to have taken place very close to the place where the deceased and the injured had gone for doing harvesting for Pir Muhammad on the fatal day. It was necessary to prepare a mashirnama of the place where harvesting was allegedly done in order to ascertain the truthfulness of the story set up by the alleged eye‑witnesses. However, this was not done. (iv) P. W. Umar Bano who (was the only mashir examined to prove the various mashirnamas) has deposed that the police had obtained his signature on plain (unwritten) papers. He has also denied the factum that any search was carried out in his presence in the house of accused Raheb and Bachayo. The above mashir has also deposed that accused Gut Hassan and Hashim bad produced two hatchets and two lathis, which statement is quite contrary to. what is reflected in the various mashirnamas of the alleged recoveries. (v) That no mashirnama of the injury on the person of deceased Shadi was prepared by the police. (vi) That the S. H. O. also attempted to introduce P. W. Usman and one Umer as independent eye‑witnesses not related to the deceased and the injured. One of the aforesaid persons viz. P. W. Usman was examined by the prosecution before the Sessions Judge. The above witness has been disbelieved by the learned Sessions Judge. Mi. Ghulam Ali Agha the learned counsel for the State was fair to concede that the Investigation Officer should have prepared a mashirnama of the place where the alleged harvesting was done by the deceased and the injured and that such a mashirnama would have been very material. The aforesaid facts noticed hereinabove indicate that in fact the investigation was not conducted as was expected of.

8. The remaining contentions of the learned counsel for the‑ appellants relate to the veracity of the testimony of the alleged eye‑witnesses and, therefore, the same can be taken up together. It may be observed that after discarding the recoveries and motive we are left with the ocular testimony plus medical evidence. The ocular testimony of an alleged independent eye‑witness P. W. Usman has been discarded by the learned Sessions Judge and we may say rightly so, as his evidence does not inspire any confidence. We are, therefore, left with the testimony of the alleged eye‑witnesses viz. Khuda Bux complainant (P. W. 3), Ghazi (P. W. 4), Soomro (P. W. 5) and Lai Khan (P. W. 6). The above alleged witnesses are related inter se. The description of the relationship has been given inter alia by P. W. Khuda Bux who has deposed that deceased Bijar was his father, deceased Sbadi was his cousin as well as his brother‑in- law. P. Ws. Ghazi and Lai Khan were his cousins and P. W. Soomro is his father‑in‑law. We have also noticed hereinabove in para. 6, for the reasons mentioned therein that Khuda Bux in fact was not an eye‑witness. The testimony of the other eye‑witnesses, namely, P. Ws. Ghazi, Soomro and Lai Khan cannot furnish safe basis to sustain the convictions for the following reasons: (i) All the above witnesses have deposed before the Sessions Court that P. W. Khuda Bux was also employed by P. W. Pir Muhammad for harvesting his paddy crop and that he had accompanied them for harvesting on the .fatal day. The above statement is false for the various reasons discussed hereinabove in para. 6. (ii) That all the above witnesses have attempted to introduce two alleged independent eye‑witnesses, namely, P. W. Usman Pareri and one Umer Daraz and have deposed that the aforesaid two persons had also witnessed the aforesaid incident. It may again be observed that out of the above two persons only P. W. Usman was examined by the prosecution before the Sessions Judge but his testimony has been rightly discarded by the learned Sessions Judge for the cogent reasons. It is clear that the aforesaid witnesses have deliberately falsely stated that the aforesaid two persons had witnessed the aforesaid incident. (iii) P. W. Soomro has deposed that accused Raheb had given him 2‑3 hatchet blows on his head. The above statement is belied by the medical evidence inasmuch as P. W. 1 Dr. Muhammad Afzal has deposed that Soomro had the following two injuries :‑ (1) Contused wound 2' x l ' skin deep on the right side of the head. (2) Contused wound 1 ' x scalp deep on the right side of head. (iv) P. W. Soomro before the Sessions Court has deposed that he had regained senses at the police station but in his statement under sec tion 164, Cr. P. C. Exh. 27 he had stated that he had recovered senses at the dispensary. (v) According to P, W. Soomro a number of lathi blows were given by accused Gul Hassan and Hashim to all the persons i. e. to the deceased and the injured. According to the medical evidence, namely, P. W. 1 Dr. Afzal and the injury certificate Exh. 9 the deceased Bijar had the following two injuries. (1) Incised wound 1' x 1 " X brain deep on vertex. (2) Incised wound 1' x 1 X brain deep on the vertex. . Whereas the deceased Shadi had only one incised wound on the left side of the forehead measuring 2" x 1" brain deep. The above medical evidence belies P. W. Soomro aforesaid statement that lathi injuries were inflicted on all the persons. (vi) According to P. W. Soomro no other person than the deceased and the injured persons had done havesting on the land of Pir Muhammad on the fatal day. Whereas according to P. W. Khuda Bux there were about 20 other labourers who had done harvesting at the land of Pir Muhammad on that day, and whereas according to P. W. Gbazi some other persons had also gone for harvesting at the land of Pir Muhammad on that day but he was unable to give the number of the persons before the Sessions Judge. However, in his statement under section 164, Cr. P. C. he had deposed that about 30/40 people were engaged on that day for doing harvesting by Pir Muhammad. (vii) P. W. Khuda Bux has deposed that they were to get 1/10th in kind of the harvest made by them as their wages, but where in his statement under section 164, Cr. P. C. (Exh. 21) he has deposed that they were not paid for the harvesting done by them on the land of Pir Muhammad nor they were promised to be paid anything. The other witnesses have not stated as to the consideration which they were to receive in return for doing harvesting for Pir Muhammad. (viii) There is also discrepancy about the number of injuries inflicted by accused Raheb and Bacbayo, inasmuch as P. W. Khuda Bux has deposed that Raheb caused hatchet blow to the deceased Bijar and that accused Bachayo caused a hatchet blow to Shadi. P. W, Ghazi has deposed that accused Raheb gave hatchet blows to the Bijar and accused Bachayo gave 2‑3 hatchet blows to the deceased Shadi and that accused Gul Hassan and Hashim gave lathis blows to Shadi, Bijar and Soomro. P. W. Soomro has deposed that accused Raheb gave hatchet blow to Bijar and accused Bachayo gave hatchet blows to Shadi and whereas P. W. Lai Khan has deposed that accused Raheb gave hatchet blows to Shadi and that‑ all four accused then gave blows to Soomaro. The above statements are not only contradictory but are also contrary to the medical evidence was much as deceased Bijar and Shadi had no lathi injuries and injured Soomro had no hatchet injury. (ix) P. W. Khuda Bux has deposed that some of them were carrying sickles in the bullock cart and that after the incident he dropped the sickles and grass at the place of vardat, but the mashirnama of the place of vardat Exh. 37 which was prepared on the following day does not mention any sickle or grass having been found at the place of vardat. Nor P. W. Miandad A. S. L, Police who is said to have visited the place of vardat before the S. H. O. has stated anything about sickles or grass.

9. We are mindful of the fact that merely the fact that the witnesses are related inter se would not render their testimony unreliable or inadmissible. However, in the instant case as pointed out heieinabove that the alleged eye‑witnesses are not only related inter se but have misstated certain facts with the object to obtain convictions, and there are also contradictions on material facts noticed hereinabove. In view of the aforesaid reasons, it will not be safe and proper to rely solely upon their ocular evidence for the purpose of sentencing two persons to death and awarding life imprisonment to the 2 other accused. In our view the aforesaid ocular evidence requires independent corroboration. It is significant to note that not a single accused person out of four accused persons had any personal injury though the incident is said to have taken place at about 4 p. m. i. e. in the day light and that the deceased and the inured resisted the attack. No doubt that the incident had taken place and it is also possible that it had take place in the manner as alleged by the prosecution with certain variations but as the alleged eye‑witnesses have over‑stated the prosecution and in fact were over anxious to obtain conviction, the possibility of implicating an innocent person or more in the instant case cannot be ruled out. The appellants/accused Raheb, Bachayo and Hashim are real brothers and whereas appellant accused Gul Hassan is a nephew of the aforesaid accused. It is not uncommon that an aggrieved party tries to implicate as many members of the accused person's family as far as possible. In the case of Bajoo and 2 others v. The State (P L D 1974 Kar.199), a Division Bench (comprising of Tufail Ali, Abdul Rehman, C. J. and Abdul Hafiz Memon, J.) (Judgment of which was written by Tufailally, C. J.) while accepting the appeal of three appellants observed that "I am conscious that the case against one or more appellants might well be true, any possible miscarriage of justice is at least partly due, I think to the careless investigation conducted by the police". Their Lordships of the Division Bench allowed the appeal in respect of all the three appellants, though their Lordships were conscious of the fact that the prosecution case might be true against one or more appellants. The above case on all fours is applicable to the instant case. We are in respectful agreement with the above view. We may observe that it is better to let off one or more guilty persons than to hang them, with one or more innocent persons. In the instant case even if the prosecution case 'is to be accepted on the basis of the ocular evidence the question will remain as to how many appellants were responsible for the alleged offences. In our view their identity cannot be determined free from doubts, and, therefore, the appeal is to be allowed as whole. It may also be pertinent to refer the case of Habibullah and others v. The State (P L D 1969 S C 127) wherein their Lordships of the Supreme Court were pleased to observe that a witness has to be taken on his own words and if he has made a false concession in favour of the accused persons and has compromised his integrity, his veracity is evidently damaged and that if he is capable of making false statement for one party he is equally capable of making for the sake of the other party. We are also not unmindful of the case Tawaib Khan and another v. The State (P L D 1970 S C 13), wherein their Lordships of the Supreme Court were pleased to observe that the rule that the integrity of a witness is indivisible despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications and that "the grain has to be sifted from the chaff" in each case in the light of its own particular circumstances. We have sifted the record in order to look for an independent corrobora tion to support the testimony of the aforesaid alleged eye‑witnesses. It was urged by Mr. Agha Ghulam Ali, the learned counsel for the State, that, the aforesaid ocular evidence is corroborated by the medical evidence. In our view the medical evidence cannot identify the number of the accused person who had committed the offences in question. It may also be observed that there are material contradictions between the ocular evidence and the medical evidence already noticed hereinabove. We are, therefore, of the view that in the absence of any independent corroboration, the convictions cannot be sustained and, therefore, we accept the appeal and set aside the convictions and sentences of all the appellants and order their release forthwith if not required under any other law. Appeal allowed.