1987 PLP 491 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑Fateh Muhammad, his brothers Haq Nawaz and Khizar Hayat sons of Muhammad Khan, his cousin Ejaz Ahmad and Muhammad Yousaf, his Munshi, were charged under sections 302/307/404/149 and 148, P.P.C. for killing Muhammad Aslam, their co‑villager, and firing ineffectively at Shafqat Ali, Muhammad Ashraf, Iftikhar Elahi and Rehmat Ali P.Ws. The occurrence is alleged to have taken place on 6‑5‑1975 at 6‑30 a.m. near Rajbah (watercourse) in the area of village Pandori, P.S. Narang, District Sheikhupura, the report of which was lodged by Shafqat Ali P.W. the same day at 7‑15 a.m. The above‑named persons were tried by Malik Muhammad Afzal, Additional Sessions Judge, Sheikhupura, who, vide his judgment, dated 10‑10‑1978, convicted Fateh Muhammad respondent under section 302, P.P.C. and sentenced him to death and a fine of Rs.500 or in default to six months' R.I. It was further ordered that Fateh Muhammad shall pay Rs.15,000 as compensation to the heirs of deceased Muhammad Aslam or in default to undergo further six months' R.I. He was, however, acquitted of the offences under sections 307 and 404/148, P.P.C. The rest, namely, Haq Nawaz, Khizar Hayat, Muhammad Yousaf and Ejaz Ahmad were acquitted of all the charges by giving them the benefit of doubt. Against the above conviction, Fateh Muhammad filed appeal in the High Court bearing No. 955 of 1978. The State also went in appeal bearing No. 452 of 1979 under section 417, Cr.P.C. against the acquittal of Haq Nawaz, Khizar Hayat, Muhammad Yousaf and Ejaz Ahmad. Shafqat Ali complainant also filed a revision bearing No. 337 of 1979 under section 435/439, Cr.P.C. against the acquittal of Haq Nawaz, Khizar Hayat, Muhammad Yousaf and Ejaz Ahmad. The above two appeals, the revision and the murder reference came up before a Division Bench of the Lahore High Court, which, vide its judgment dated 4‑2‑1981, accepted the appeal of Fateh Muhammad and set aside his conviction and sentence. The criminal appeal filed by the State and the revision filed by Shafqat Ali complainant were dismissed in limine. The above judgment has been impugned by Shafqat Ali complainant through the present appeal bearing) No. 174 of 1983 and leave has been granted on 13‑12‑1983 to reappraise the evidence in so far as the case of Fateh Muhammad is concerned. Leave against the remaining acquitted co‑accused has, however, been refused.

2. The prosecution case is that on 6‑5‑1975 at 6‑30 a.m. Muhammad Aslam deceased along with Muhammad Ashraf woes going along the Katcha path towards the bus‑stand. They were followed by Shafqat Ali complainant on the bank of Rajbah Kala Shah Kaku for going to Kirto Bus‑Stand. On the path Shafqat Ali complainant saw Fateh Muhammad, Haq Nawaz and Khizar Hayat each armed with a single barrel gun. He also saw Ejaz Ahmad and Muhammad Yousaf sitting. As soon as Muhammad Aslam and Muhammad Ashraf passed from near the respondent and his acquitted co‑accused, Ejaz Ahmad, Khizar Hayat and Muhammad Yousaf gave a Lalkara that Muhammad Aslam should not go alive and thereupon Fateh Muhammad respondent and Haq Nawaz, acquitted co‑accused, fired one shot each from their single barrel guns at the deceased who was hit at his back by the two shots and he fell down. Iftikhar Elahi (given up P.W.) and Rehmat Ali P.W.6 were following the complainant on the Patri. They advanced towards the deceased whereupon Ejaz Ahmad and Muhammad Yousaf, acquitted co‑accused, took out their revolvers from the folds of their loin‑cloth, and Khizar Hayat, acquitted co‑accused, who was also armed with a single barrel gun, fired at the P.Ws. and threatened to kill them if they tried to advance towards the deceased. Fateh Muhammad respondent then removed the licensed revolver along with the belt from the waist of the deceased and Haq Nawaz, acquitted co‑accused removed the wrist watch of the deceased and then ran away firing in the air. All the accused then boarded a white coloured wagon which was parked nearby which drove them towards Kotli Virkari side. The F.I.R. in this case was lodged by Shafqat Ali and the motive given by him in the F.I.R. was that about 11 years back Muhammad Aslam and Rehmat Ali son of Fateh Muhammad P.W.4 and others had purchased land measuring 677 Kanals 8 Marlas in Mauza Jhandeer from Nawabzadi Sajida Sultana which was resented by Fateh Muhammad respondent, as a result of which he filed a private complainant in the Court of Assistant Commissioner, Ferozewala, under sections 471/34 and 420/468, P.P.C. against Muhammad Aslam deceased, Rehmat Ali P.W.4 and his brother Muhammad Ashraf P.W.7. Fateh Muhammad had also filed a suit for specific performance in respect of the same transaction against Muhammad Aslam deceased, Rehmat Ali and his brother Muhammad Ashraf P.Ws. It is alleged by the prosecution that hearings in both the cases were fixed on 6‑5‑1975 and Muhammad Aslam deceased along with others was going to attend the Courts and thus, en route he was done to death by Fateh Muhammad etc. The F.I.R. was recorded by Zameer Ahmad, S.H.O. P.S. Narang, who, after recording the same, started investigation, reached the spot and sent the dead body of Muhammad Aslam to the Civil Hospital, Sheikhupura, for post‑mortem examination. He secured blood‑stained earth from the spot, also took into possession a report lodged by Rehmat Ali P.W.4 recorded on 15‑10‑1974 which is Exh.P.B., and recorded the statements of the eye‑witnesses. This P.W. also took into possession the blood‑stained clothes of the deceased, a pair of Chappal and a sealed bottle containing five pellets sent by the doctor. Khizar Hayat, acquitted co‑accused, was arrested on 7‑5‑1975, Muhammad Yousaf and Haq Nawaz were arrested on 10‑5‑1975 and 20‑5‑1975. Ejaz Ahmad was arrested after cancellation of his bail. Fateh Muhammad respondent was avoiding arrest, he was declared proclaimed offender, there fore, warrant of attachment of his property was issued by the Ilaqa Magistrate on 17‑6‑1975. Ultimately, Fateh Muhammad was arrested on 15‑5‑1976 from District Sahiwal. No other incriminating article was recovered either from the respondent and the acquitted co‑accused or from the place of occurrence.

3. After the completion of investigation, the respondent and the acquitted co‑accused were put to trial where as many as 18 persons appeared for the prosecution. Fateh Muhammad respondent in his statement under section 342, Cr.P.C. admitted his relationship with the acquitted co‑accused, also admitted the filing of the criminal complaint against the deceased as well as the civil suit. He also admitted that hearing in the civil case was fixed on 6‑5‑1975. As to report Exh.P.B., he stated that the same was fabricated by the police after the registration of the murder case at the instance of Ch. Muhammad Akram, Advocate He completely denied the occurrence as alleged by the prosecution. He also denied his abscondence and took a stand that before the occurrence he had gone to District Tharparkar in Sind in connection with his business. He further stated that the witnesses appearing against him are inimical and partisan and that he was innocent. The trial culminated in the conviction of Fateh Muhammad respondent only while in appeal he was also acquitted.

4. We have heard the learned counsel for the parties and have gone through the evidence and the judgments of the Courts below. The learned counsel for the appellant vehemently contended that it is a broad‑daylight occurrence which has been witnessed by Shafqat Ali P.W.5, Rehmat Ali P.W.6 and Muhammad Ashraf P.W.7 who are consistent in charging the respondent and Haq Nawaz, the acquitted co‑accused for having fired fatal shots at the deceased and that their version of the occurrence has been fully corroborated by the medical evidence and the abscondence of Fateh Muhammad respondent, yet the High Court has rejected the above evidence and, therefore, miscarriage of justice. He also contended that of the three witnesses, Rehmat Ali P.W.6 was an independent witness and, therefore, his testimony should not have been rejected by the High Court on the ground of his being a person of bad character. He further submitted that another circumstance which has proved the guilt of the respondent is the motive which has been corroborated by Exh.P. B. , a report lodged with the local police about 6/7 months prior to the occurrence, the learned Judges of the High Court have. therefore, failed to examine the case in its true perspective.

5. We have given our careful consideration to the arguments advanced by the learned counsel for the appellant and are of the view that the findings arrived at by the learned Judges of the High Court need no interference. It is true that the occurrence took place in broad‑daylight. It may also be true that the occurrence had been witnessed by Shafqat Ali, Rehmat Ali and Muhammad Ashraf P. Ws. but it is equally true that either they are interested or partisan witnesses. The moot question, therefore, is whether they are witnesses of the truth and that their version of the occurrence is supported by other evidence or not. In the F.I.R. lodged by Shafqat Ali soon after the occurrence it has been alleged that at the crucial time a little ahead of him Muhammad Aslam deceased and Muhammad Ashraf P.W. were proceeding towards the bus‑stand and on this way the respondent and his brothers Haq Nawa2 and Khizar Hayat, the acquitted co‑accused, were sitting duly armed with single barrel guns and that Ejaz Ahmad and Muhammad Yousaf (acquitted co‑accused) were also sitting with them; as the deceased and Muhammad Ashraf P.W. reached near them, Khizar Hayat, Ejaz Ahmad and Muhammad Yousaf raised a Lalkara when in the meantime Fateh Muhammad respondent as well as Haq Nawaz acquitted co‑accused fired one shot each through their respective guns at the deceased which hit him on his back side and the deceased fell down; that Shafqat Ali P.W., Iftikhar Elahi and Rehmat Ali P.W., who were coming along lust behind them, advanced forward in order to rescue the deceased nut on seeing them Ejaz Ahmad and Muhammad Yousaf took out revolvers from the folds of their loin‑cloths and Khizar Hayat took out his gun and fired in the air threatening them not to come forward. ‑Then Fateh Muhammad respondent removed the licensed revolver from the waist of the deceased and Haq Nawaz took away his wrist watch. The three witnesses who gave the eye‑version account at the trial faithfully stuck to the deposition made in the F.I.R. However, Dr. Abdul Mujib P.W.15 at the trial after describing the two entrance wounds which are exactly of the same dimension " x " and covered exactly the same area 2" x 2" deposed: "These injuries were caused from a close distance about 3 to 4 feet and were the result of fire shots from the same type of barrel as both the injuries were exactly similar. The same number of pellets struck the deceased from the two cartridges which had hit the deceased. The area of the wounds of injuries 1 and 2 suggested that the shots were fired from almost the same distance. The location of each pellet in both the injuries suggested that the shots were fired from almost from the same distance. The shape and size of wounds of injuries 1 and 2 suggested that the cartridges were of the same type and make." This deposition by the Doctor has completely demolished the case of the prosecution because under no circumstance two shots alleged to have been fired by the respondent and his brother Haq Nawaz by two different guns would have caused injuries of exactly the same type and dimension. This leads us to an irresistible conclusion that there was only one assailant who was armed with a double‑barrel gun and had fired at his target two shots in quick succession. Since the ocular evidence including that of Rehmat Ali P.W.6 has been belied by the medical evidence and other circumstantial evidence such as the non‑recovery of empties from the spot, therefore, the High Court was justified in holding the eye‑witnesses as untruthful and unworthy of credence. Here it is pertinent to point out that the learned Judges of the High Court did not reject the evidence of Rehmat Ali P.W.6 on the only ground that he was a person of bad character but on the ground also that he had contradicted the other eye‑witnesses in describing the manner in which the two shots were fired at the deceased and also that his testimony was in conflict with the medical evidence in respect of the distance between the assailant and the deceased.

6. In so far as the other circumstantial evidence such as the motive set up by the prosecution and the abscondence of Fateh Muhammad respondent is concerned, this received the consideration of the learned .fudges of the High Court who after examining it threadbare rejected the same in the following manner: "The trial Judge relying on Exh. P. B. and the motive, as set up in the F. I. R., arrived at the conclusion that since the appellant (now respondent) had instituted civil as well as criminal litigation against the deceased and others, he had a direct motive to murder the deceased. Then he did not enter appearance in the Court of the Magistrate on the day of occurrence i.e. 6‑5‑1975 After the occurrence on 6‑5‑1975 he absconded and was declared a proclaimed offender. He remained an absconder for a period of eleven months and was arrested from Sahiwal District. Thus, the trial Judge, primarily considering his absconsion as sufficient corroboration of the ocular testimony, in the instant case, proceeded to convict and sentence him. Learned counsel for the complainant has produced a string of authorities in support of his view point to the effect that absconsion of the appellant for a period of eleven months and his arrest from a different District was sufficient corroboration to the testimony of even interested or partisan or intrinsically unreliable eye‑witnesses produced in the instant case. We have already observed that a perusal of Exh. P . B . and the evidence in respect of motive only leads to the inference that there existed mutual hostility between the parties and it cannot be said that the hostility/enmity was one sided. The trial Judge himself has observed that there was a background of the existence of extreme enmity between the parties. It may be true that the appellant alone had initiated civil as well as criminal litigation as against the deceased and the others. But to draw an inference there from that he had a direct motive to kill the deceased was rather remote. The removal of the deceased from the scene could have led to no advantage so far as the appellant was concerned as he was only one of the purchasers of the disputed land. There is nothing on the record to indicate that because of the murder of the deceased, the appellant managed to acquire the disputed land. If the murder of the deceased was to be committed for the acquisition of the disputed land, then Muhammad Ashraf P.W., who was accompanying him, may have also not been spared as he too was one of the purchasers of the disputed land. We have also observed that the hostility between the parties was not only due to the litigation but as is indicated from Exh.P.B., there had existed even political rivalry between the two factions. Consequently, if one side had the motive to kill the other, the other side had the motive to falsely implicate even on suspicion, for, there were other enemies as well. So far as the absence of the appellant from the Court of Magistrate on 6‑5‑1975 is concerned, this piece of circumstantial evidence, in our view, is not strong enough to serve as corroboration. No one had appeared in the Court of the Magistrate on that date except the counsel of Nawabzadi Sajda Sultana. One can as well say that the appellant did not appear in the Court of the Magistrate on that day because he was the complainant and he might have had an apprehension that he would be considered as a suspect in the murder of the deceased. Learned counsel for the appellant has vehemently argued that proceedings under section 87/88, Cr.P.C. had not been properly conducted as against the absconsion of the appellant and the proclamation was not published. But we do not find any force in this argument. In our considered opinion, there is sufficient evidence on the record to the effect that the appellant had absconded after the occurrence, was properly declared a proclaimed offender and when arrested from a different District after eleven months, he was not able to give any satisfactory explanation of his disappearance. We have already observed that the abscondence of the appellant stands proved However, the important question is as to whether or not, in the circumstances of this case, the abscondence of the appellant was a strong corroborative piece of evidence of intrinsically unreliable ocular testimony in the instant case. Had he not absconded, his position certainly would have been identical to that of Haque Nawaz, acquitted co‑accused, who had been attributed the same part as that of the appellant but was acquitted only for the reason that there was no corroboration of the ocular testimony in his case. We are, therefore, of the view that if the ocular testimony is intrinsically unreliable and not worthy of any credit, then no kind of corroborative evidence could possibly have any value." The learned counsel for the appellant has not been able to persuade us to come to a conclusion different from the one arrived by the learned appellate Court.

7. As a result of the above, the appeal fails and is hereby dismissed Fateh Muhammad respondent shall be released forthwith if not required in any other case. S.Q./4437/S Appeal dismissed.