P L D 1993 Supreme Court 895 (PLP)

MANZOOR HUSSAIN SIAL, J.‑‑‑ This appeal by leave, is from the judgment of a Division Bench of Lahore High Court dated 21‑7‑1991, setting aside the conviction of three respondents, namely, Ali Muhammad, Muhammad Akbar and Muhammad Fazal for an offence under section 302/34, P.P.C. for the murder of Mushtaq Ahmad son of Muhammad Hanif, the complainant.

2. The incident took place on 8‑6‑1988 at 3‑00 a.m., in the house of Mst. Noor Elahi, a married daughter of Muhammad Hanif complainant. on the fateful night, the complainant Muhammad Hanif, his son Mushtaq Ahmad, (deceased) and his wife Mst. Zohara (not produced) had arrived in the house of Mst. Noor Elahi at 8‑00 p.m., on a visit to her. The complainant slept in the courtyard alongwith Mushtaq Ahmad (deceased) while Mst. Zohara and Mst. Noor Elahi slept in the house. At about 3‑00 a.m. the complainant woke up. It was noonlit night. He saw that respondent Ali Muhammad and his two accomplices Muhammad Akbar and Muhammad Fazal entered the house by scaling over the wall. Ali Muhammad fired a shot from his gun which hit on the right side of the forehead of Mushtaq, who died at the spot. The complainant tried to catch hold of Ali Muhammad but he was restrained by Muhammad Fazal and Muhammad Akbar accused who armed with pistols threatened him, that if he intervened, he would be done to death. The occurrence was also witnessed by Mst. Noor Elahi and Mst. Zohara. The assailants after committing murder of Mushtaq, decamped from the spot by jumping over the western wall. The complainant left Mst. Noor Elahi and Mst. Zohara to guard the 4pad body and himself lodged the F.I.R. (Exh.P.A.) at Police Station Hujra, which was recorded at 4‑30 a.m. by Nasarullah Khan Niazi, S.H.O. (P.W.10).

3. The motive for the crime was, enmity, as Ashiq son of Ali Muhammad, accused was murdered a year. prior to occurrence, in which Mushtaq (deceased) was challaned, but subsequently acquitted.

4. The Investigating Officer, after recording the FIR, reached the spot. He prepared injury statement (Exh. P.H.) and inquest report (Exh.P.J.) and dispatched the dead body for post‑mortem. He collected blood‑stained earth from the spot vide memo (Exh.P.B.), crime empty lying at the spot, was also taken into possession vide memo. (Exh.P.C.). He arrested the accused on 17‑6‑1988. Ali Muhammad produced licensed gun (Exh. P.2) alongwith cartridges (Exh.P.3/1‑4) which he took into possession vide memo. (Fxh P.K.).

5. Dr. Mahmood Afzal, who conducted autopsy on the dead body on 8‑&1988 at 1‑00 p.m. deposed at the trial, that he noted a lacerated wound 5 c.m. x 6 c.m. in going,. on the upper part of right side of forehead on the front and right side of head. The margins of the wound were blackened and inverted.

6. At the trial, the eye‑witness account was furnished by Muhammad Hanif, P.W.1, the complainant and Mst. Noor Elahi, P.W.2, his daughter.

7. According to report (Exh. P.O.) of the Forensic Science Laboratory, the empty recovered from the spot could not be said to be wedded with gun produced by Ali Muhammad.

8. The respondents during their statements under section 342, Cr.P.C. denied the prosecution case and professed innocence. Ali Muhammad stated, that Suba Watto had actually murdered Ashiq. He also stated that initially police arrested Bashir Ahmed, the brother of complainant for the murder of Mushtaq, but let him off later.

9. The learned trial ludge‑accepted the ocular evidence and confirmatory evidence consisting upon motive, medical evidence, prompt lodging of FIR and the recoveries. in consequence, vide his judgment dated 9‑10‑1989, convicted all the three accused under section 302/34, P.P.C. He sentenced Ali Muhammad to death and fine of Rs.5,000 or in default thereof, R.I. for two years. Muhammad Akbar and Muhammad Fazal were sentenced to life imprisonment and fine of Rs.5,00b each or in default thereof, to suffer R.I. for two years.

10. However, the learned Judges in the High Court reversed the decision of the trial Court and vide impugned judgment, acquitted all the respondents.

11. Leave to appeal was granted in this case, on 1‑7‑1992, against Ali I Muhammad respondent only, to reappraise the evidence and see as to whether, evidence has properly been assessed, in accordance with the principles, laid down for safe administration of criminal justice. The petition, in respect of other two respondents was dismissed as they allegedly caused no injury and took no other part in the incident except threatening the complainant.

12. According to the learned Judges, the prosecution failed to prove the case against the accused beyond reasonable doubt and seem to have been influenced by the following reasons highlighted in the impugned judgment:‑‑ (i) There existed animosity between the complainant party and the accused party, therefore possibility of false implication of the accused cannot be ruled out. (ii) The occurrence, took place in the house of Farzand, the husband of Mst. Noor Elahi, P.W.2, he was not cited as witness. (iii) No explanation was given by the complainant for his visit to the house of her daughter, Mst. Noor Elahi, which indicates that he was not present on the scene of occurrence. (iv) The empty P.1 recovered from the spot was found not wedded with the gun Exh.P.2 produced by Ali Muhammad accused. Ali Muhammad, a 55 years old person, reportedly scaled the wall, to enter the house of Mst. Noor Elabi and commit murder of Mushtaq, does not appeal to reason. (vi) Mushtaq deceased was disorderly person and had many enemies, the evidence of motive against Ali Muhammad, therefore, becomes doubtful.

13. After, hearing learned counsel for the appellant, the learned counsel representing the State, and reading material evidence, on the record, we are of the view, that the learned Judges did not determine the guilt of the accused on the totality of legal evidence available on the file. It is well‑established rule governing the administration of criminal justice that the evidence should not be considered in isolation and whole of it, should be take into consideration. . In the instant case, the learned Judges did not entirely discard the direct ocular evidence, particularly, the statement of Mst. Noor Elahii an observed in para. 7 of the judgment that her statement provided corroboration to the statement made by her father (Muhammad Hanif Complainant). Th presence of Muhammad Hanif, P.W., however, at the scene of occurrence of the fateful night with his son Mushtaq deceased and his wife covering distance of eight miles was doubted for want of explanation furnished by the complainant.

14. After careful consideration of the record,, it appears that the learned Judges were influenced by, highly artificial reasons in doubting the presence of the complainant on the scene of occurrence. In this regard, one important fact was completely overlooked by the learned Judges, that if indeed the complainant was not present and it was un witnessed crime, committed during the darkness of night the F.I.R. could not have been lodged by the complainant so promptly at " a.m., within one and a half hours, after covering distance of seven kilometres. Nothing was brought on the record that F.I.R. was not recorded at the police station and at the time indicated in it. The F.I.R., vividly described the gunshot fired by Ali Muhammad accused on the forehead of Mushtaq deceased which was corroborated by medical evidence. In fact, no explanation is required for a father to visit his married daughter alongwith his son, who was done to death 0 her house. It was not the case of defence, that Mushtaq was not murdered 'in the house of Mst. Noor Oahi, the daughter of the complainant. The presence of Mst. Noor Elahi and her father was natural, which was established by his lodging the FIR at police station promptly. No doubt, both the eye‑witnesses of occurrence are closely related teach other and the deceased and are inimical to the accused, but the testimony is not only consistent, trustworthy,, but inspires confidence. It ha been corroborated by medical evidence, motive, promptly lodging of the FI and giving details of the occurrence. The non‑citation of Farzand, the husband of Nour Elahi, as witness does not necessarily cast doubt on the prosecution version. He was not preset in the house on the fateful night, and therefore, was not mentioned in calendar of witnesses. The defence counsel did not ask any question, about from Mst. Noor Elahi. As regards the empty Exh.P.1., the Ballistic Expert gave no definite opinion, as to whether, it was fired from the gun Exh.p.2 produced by Ali Muhammad. The expert's evidence may it be, medical or that, of Ballistic Expert, is entirely in the nature of confirmatory explanatory of direct or other circumstantial evidence, but if there is direct evidence as in the instant case, which is definite, trustworthy, the confirmatory evidence is not of much significance. In any case, it cannot outweigh the direct evidence. As to the doubt, expressed by the learned Judges that Ali Muhammad, aged 55 years possibly, could not scale over the wall, the defence counsel did not opt to ask a specific question from the eye‑witnesses regarding the height of the wall, therefore, it was preposterous to think that he could not scale over the wall particularly, when he had a strong motive to take revenge of the murder of his son. The last reason which weighed with the learned Judges was that Mushtaq deceased was disorderly person and had many enemies, he might have been done to death, by some one else. This argument might have carried weight, if the prosecution had failed to establish the identity of the accused. Both the eye‑witnesses, previously knew the accused they therefore encountered no difficulty to identify them in the moonlit night. There was no question of mistaken identity of the accused, as they were named in the F.I.R. with specific role, attributed to them. The real father and sister of the deceased, are eye‑witnesses, they therefore cannot possibly substitute any one else except the real culprit. The accused had strong motive for killing Mushtaq and the prosecution succeeded in proving the same. Moreover, Ali MuhammaG did not deny that his son Ashiq was murdered and Mushtaq (deceased) was challaned and subsequently acquitted. After perusing the evidence of the two eye‑witnesses, whose presence in our view, on the scene of occurrence at the relevant time was natural, and taking into consideration, all the relevant facts and circumstances, we are dearly of the view, that the reasons advanced by the learned Judges doubting the presence of complainant at the spot and discarding the statement of Mst. Noor Elahi, are highly artificial and conjectural in nature. As a result, we hold, that the ocular evidence stands fully corroborated, in so far as Ali Muhammad accused is concerned, we would therefore, restore his conviction, recorded by the trial Court, under section 3O2 P.P.C. As regards the sentence, Ali Muhammad was arrested on 17‑6‑1988, and remained in custody until he was acquitted by the High Court. We. therefore, substitute a sentence of imprisonment for life instead of death and restore sentence of fine of Rs.5,000 imposed by the trial Court. If the amount. of fine is recovered the same be paid to the heirs of the deceased. The benefit of section 382, Cr.P.C. is also extended to Ali Muhammad while computing his sentence. M.BA./M‑1778/S Order accordingly.