1998 PLP 570 (SCMR)

(v) A lacerated wound starting from base of nose anteriorly ending on the right eye‑brow with a length of 6 c.m. with 8 black silk stitches. A depressed impression 3 x 1 c.m. (L x W) on the base of the right of penis was also noted. The examination of muscles, bones and joints of the deceased revealed the following injuries:‑ (i) A swelling of 6 x 4 c.m. on the right mandibular angle. (ii) A lacerated wound 2 x c.m. in length with 2 stitches on the lateral aspect of the right thigh in the middle. (iii) A depressed pressure mark on the right thigh 4 x 1 c.m. in length on the upper part laterally. (vi) A scratch 1 x long on the posterior aspect of upper part of the right thigh near its middle above. In the opinion of the doctor, death of the deceased had occurred due to intracranial haemorrhage caused by a blunt weapon leading to comma and death.

5. The prosecution examined as many as eight witnesses, of whom eye witness account of the occurrence was furnished before an Additional Sessions Judge, Quetta, by Muhammad Khan (P.W.1), petitioner and Faqir Muhammad (P.W.2) Dr. Amin Mengal (P.W.4), had testified to the correctness of the post mortem report. Abdul Jabbar, S.I. (P.W.8) deposed as to the process of investigation in the case. The remaining witnesses were formal in nature.

6. The defence of the respondents before the trial Judge in their statements under section 342, Cr.P.C. was one of bare denial., When asked as to why the P.Ws., had deposed against him, Maula Bakhsh asserted that "they had deposed falsely" while Muhammad Rafique respondent answered the question as under:‑‑ "Since P.W., Khan Muhammad (in fact Muhammad Khan, petitioner) desired that I should divorce his sister, that is why, the P.W deposed against me. " Both the respondents were examined under section 340(2), Cr.P.C. on oath wherein both of them denied the prosecution allegations that they alongwith Asghar (absconder) had done Nabi Bakhsh to death due to some family dispute. Both of them examined in their defence Abdul Karim, their brother‑in‑law, as D.W.1 and Ahmad Khan as D.W.2. Abdul Karim (D.W.1) deposed to have visited Muhammad Rafique respondent at Quetta Cantt. on 1‑9‑1992 at 5‑30 p.m., and to have stated with him for the night. Ahmad Khan (D.W.2) testified to the fact that on coming to know his sons (respondents) had been charged for the murder, he produced them before the Investigating Officer.

7. The learned 'trial Judge after appraisal of the evidence on record concluded that the death of Nabi Bakhsh was homicidal and, having been caused by blunt weapon, was not accidental; that the evidence of Muhammad Khan (P.W.1) petitioner and Faqir Muhammad (P.W.2) was reliable notwithstanding the delay of three days. The learned trial Judge was of the view that there was no legal bar against the second version of the occurrence and in this context reliance was placed on the authority of Muhammad Aslam v. S.H.O. (PLD 1981 Lah. 138) to hold that both the reports could be gone into simultaneously and the one which was true could be accepted as true. According to the learned trial Judge, the explanation tendered by the petitioner in the second version of. report with regard to accidental death of his brother, misguidance of Allah Ditta Contractor, was truthful notwithstanding the omission of the prosecution to examine him. The learned trial Judge was further of the view that the testimony of Faqir Muhammad (P.W.2), who was disinterested witness, fully ,substantiated the evidence of the petitioner. In consequence, the respondents were convicted for the murder of Nabi Bakhsh and each one of them was sentenced to imprisonment for life and a.fine of Rs.2,00,000 each or in default to undergo rigorous imprisonment for one year. The fine, on recovery, was directed to be paid to the heirs of the deceased.

8. The respondents appealed to the High Court of Balochistan at Quetta. A learned Division Bench of the High Court after reappraisal of the entire evidence on record reached the conclusion‑ (i) That the subsequent report Exh.P/1‑B dated 2‑9‑1992 was a mere statement under section 161, Cr.P.C. (ii) That the report Exh.P/1‑A lodged by Muhammad Khan, petitioner, on 1‑9‑1992 was the actual F.I.R. (iii) That on that account as well as the delay and the manner in which the petitioner, who was the real brother of the deceased, had acted in a very queer manner first to report the accidental death of his brother and then within 24 hours made a somersault and lodged another report charging the respondents for the murder of his brother. (iv) That it was not discernible on the record as to why he surreptitiously took away the dead body of his brother to Sibi at the dead of night and then brought it back to Quetta and lodged a fresh report without any plausible explanation. (v) That the evidence of Faqir Muhammad (P.W.2), besides being very delayed by 15 days or one month, was even otherwise not worthy of credence, for, upon his own showing he was a chance witness. (vi) That the words attributed to the respondents that (Urdu) were tantamount to extra‑judicial confession which was not confidence inspiring and was a crime attempt to create evidence against the respondents. (viii) That the post‑mortem report was not in conformity with the medico legal report deposed to by Dr. Abdul Haq (D.W.3) notwithstanding the fact that injury No.2 in the MLR corresponds to injury No.5 in the post‑mortem report.

9. Mr. Basharatullah,' learned counsel for the complainant‑petitioner, submitted that the impugned judgment acquitting the respondents was against the weight of evidence both direct and circumstantial linking the respondents with the commission of the crime. In this context it was contended that the second version of the occurrence of homicide was amply proved from the ocular evidence of the petitioner and Faqir Muhammad (P.W.2).

10. We have given our careful consideration to the above argument of the learned counsel for the petitioner. There are certain features about the prosecution case which are not explained satisfactory. As pointed out already, it appears rather extraordinary that the petitioner despite being the real brother of the deceased had readily accepted the persuasion by Allah Ditta contractor to drop the charge of murder of his real brother and assert the occurrence as accidental; that the petitioner took the dead body of his brother in the dead of night from the Hospital to Sibi surreptitiously and brought it back on the following day and; took a turn altering his earlier version from accidental death of his brother to that of homicidal. The story of persuasion by Allah Ditta Contractor not to press homicidal death of hid brother, to say the least, is simply ridiculous and does not sound reasonable to a prudent man. Similarly, the removing of dead body from the hospital during the night without permission or knowledge of the hospital authorities has remained shrouded in mystery throughout the proceedings. Similarly, the evidence of Faqir Muhammad (P.W.2), "who claims to have witnessed the respondents and Asghar (absconder) coming out of the room where the deceased and the petitioner lived and heard them saying that (Urdu) to which the petitioner asked as to what had been finished whether those persons went ahead", is again completely unreliable on two‑fold grounds; firstly, the evidence furnished is res gestae in its nature which is undoubtedly relevant under Article 19 of Qanun‑e‑Shahadat but it does not come up to the standard prescribed thereunder and, therefore, has got no evidentiary value: secondly, that Faqir Muhammad (P.W.2) was examined by the Police after the delay of 15 to 30 days which itself robs it of its credibility. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Even otherwise, the sequence of events narrated in his statement both under section 161, Cr.P.C. as well as in his testimony before the Trial Court is rather highly improbable. Consequently, the evidence of Faqir Muhammad (P.W.2) is absolutely unreliable. Having regard to the peculiar features of his case, in our opinion, the learned Judges in the High Court were justified to be susceptical about the aforesaid two eye‑witnesses. Then it cannot be disputed at all that the prosecution had tried to improve upon the case with regard to the incident of accidental death that of homicidal death.

11. Because of the above features in the prosecution case, it is impossible to contend that the conclusions arrived at by the learned Judges of the High Court were, in any way, perverse or fanciful. This whole criticism of the learned counsel for. the petitioner against the appreciation of the evidence in relation to the facts of the case is misplaced.

12. We do not, therefore, find any justification to interfere ‑with the impugned order of acquittal for which standards to appraise the evidence are quite different from those laid down for an appeal against conviction. In the circumstances, we have not been persuaded to grant leave to appeal which is accordingly, refused. N.H.Q./M‑3303/S Leave refused.