1987 PLP 839 (MLD)

7. On 30-8-1980 Dr. Muhammad Rahim Piracha (PW 1) receiving inquest report Ex-PV/1 conducted post-mortem examination on the dead body of Afzal and found following injuries:- (i) A lacerated gun shot wound 2 c.m. x 1 c.m. going inward wound of entry on the right side of chin just below right lip at the junction of 1/3rd with 2/3rd longitudinal direction and 4 circular wounds of exit, three on the back of right neck and one on' the middle of back neck. Three 1 c. m. each and one 1 c.m. circular. (ii) An incised wound 13 c.m. x 6 c.m. beginning in the middle of chin involving right side of neck cutting skin vein and artery muscle. In his opinion, the death was due to shock and haemorrhage. Injuries No.l and 2 were ante-mortem and individually sufficient to cause death in the ordinary course of nature. Injury No.l was caused with a fire-arm while injury No.2 was caused with sharp-edged weapon. The death was instantaneous.

8. On the same day, the same doctor receiving inquest report Ex.PY/1 conducted post-mortem examination on the dead body of Manak and found following injuries:- (i) 3 circular wounds of fire-arm on the left side of chest situated below the left nipple, two 11 c.m. below left nipple and one 31 c. m. below interior, two 1 c. m. in radius posterior and one 2 c.m. and wound of entrance going inward. (ii) A contused wound 2 c. m. x 2 c. m. x bone deep on right leg about 10 c. m. below right patella. (iii) A contused wound 2 c. m. x 1 b. m. x bone deep .on the right leg 9 c.m. below injury No.

2. On internal examination the doctor found fracture of left 7th rib, puncture of left pleura at its lower side, puncture of stomach through and through and going into the lumber muscles. 4 pellets were removed from the lumber area muscles. Fracture of tibia and fabula at both injuries was seen. The doctor opined that death occurred instantaneously due to shock and haemorrhage. Injury No.l was sufficient to cause death in the ordinary course of nature.

9. On the same day, the same doctor examined Dost Muhammad (PW 11) and found on him the following injuries:- (i) A contused wound 3 c.m. x c.m. x bone deep on the left side of head 2 c.m. from forehead hair margin. (ii) Two contused wounds on outer side of left forearm 1 c.m. x c.m. x bone deep, 1 c.m. x bone deep. (iii) A multiple contusion 10 c. m. x 6 c. m. on the left elbow and fore-arm. (iv) Two contusions 8 c.m. x 4 c.m. on the right elbow and upper arm. (v) A contusion 5 c.m. x 3 c.m. on the left side of neck. (vi) A contusion 6 c. m. x-3 c. m. on the right scapula. (vii) A multiple abrasion 10 c.m. x 2 c.m. on the right leg and knee joint on the front. (viii) Two abrasions 2 c.m. x 2 c.m. x 1 c.m. on the left knee joint. All the injuries were caused by blunt weapon and were found simple.

10. On the same day, the same doctor examined Akbar (PW 12) and found following injuries on his person:- (i) A contused wound 6 c.m. x 1 c.m. x bone deep on the right side of head 8 c. m. from the right ear. (ii) A contused wound 2 c.m. x c.m. in the left temporal area before the left ear. (iii) A contusion 6 c. m. x 4 c. m. on the left shoulder which was whole swollen. (iv) Swelling on the right back of chest from top of last rib. (v) A contusion 9 c.m. x 3 c.m. on the outer side of lower left thigh. (vi) A contusion 5 c.m. x 3 c. m. on the outer side of left hip. All the injuries were caused with blunt weapon and were simple in nature.

11. On 14-9-1980 SI Muhammad Aslam Shahab (PW 17) arrested Ahmad, Gulla and Said, appellants. Amir, appellant, was arrested on 16-9-1980. On 27-9-1980 Gulla appellant led to the recovery of 12 bore gun P.6 from his residential Kotha in the area of Old Bhalwal which was taken into possession vide memo Ex-PK attested by Sajada (PW 7), Muhammad Hussain PW (not produced) and SI Muhammad Aslam Shahab (PW 17). On the same day, Ahmad, appellant, led to the recovery of blood-stained hatchet P.7 from the same Kotha from under a cot lying there which was taken into possession vide memo Ex-PL attested by the same witnesses. Said, appellant, then got recovered Lathi (not blood-stained) P.8 from under a Chhapper at the same Dera which was taken into possession vide memo Ex-PM attested by the same witnesses.

12. After about 1-3/4 years Zulfiqar appellant was arrested by SI Ghulam Ali (PW 19) on 7-5-1982. Muhammad Khan, Ghulam Hussain, Yara and Amir son of Ghulam appellants were arrested by ASI Jalal Khan (PW 18) on 5-7-1982. On the same day the said appellants got recovered a Sota each, not stained with blood. No weapon was, however, recovered from Zulfiqar appellant.

13. Rana Nazir Hussain, Naib Tehsildar/Magistrate 3rd Class (PW 14) conducted in jail identification parade of Yara, Muhammad Khan alias Manak, appellants, on 7-6-1982 wherein Dost Muhammad complainant could not identify any of them, Nazir PW identified only Manak while Akbar PW identified all of them. The witness also supervised identification parade of Amir son of Ghulam appellant held on 4-7-1982 wherein all the above-mentioned witnesses correctly identified him. He recorded proceedings of both identification parades which are Ex-PW14/C and Ex-PW14/F respectively.

14. The Serologist's report Ex-PCC shows that the hatchet allegedly recovered from Ahmad, appellant, was stained with human blood.

15. In order to prove its case prosecution produced 19 witnesses. Dost Muhammad (PW 11), Akbar (PW 12) and Nazir (PW 13) have given the ocular account of the occurrence. They claim to have seen the appellants as well as Nawaz, acquitted accused, on the spot at the relevant time attacking Afzal, Manak, Dost Muhammad and Akbar resulting in the death of Afzal and Manak and simple injuries with blunt weapon to Dost Muhammad and Akbar PWs.

16. FC Ghulam Hussain (PW 4) and SI Muhammad Aslam Shahab (PW17) have deposed about the absconsion of Zulfiqar, appellant, and the proceedings taken as a result of which proclamation Ex-PW4/D was issued against him. Sajada (PW 7) and Muhammad Afzal (PW 10) have deposed about the recovery of weapons of offence from the appellants while SI Muhammad Aslam Shahab (PW 17), ASI Jalal Khan (PW 18) and SI Ghulam Ali (PW 19) stated about investigations conducted by them. Rana Nazir Hussain (PW 14) deposed about the identification parades held by him.

17. It may be noted that since no empty was recovered from the spot, therefore, the gun recovered from Gulla appellant was not sent to Forensic Science Laboratory for examination and is of no consequence.

18. When examined under section 342 Cr.P.C., the appellants denied all the incriminating circumstances. They raised plea of false implication on account of enmity. Dr. Muhammad Anwar (DW 1) was produced in defence to show that Ahmad appellant's spinal column was operated on 28-5-1979, therefore, he was unable to take part in the occurrence. The doctor stated that he had admitted Ahmad Yar (appellant) in his hospital on 28-5-1979. His spinal column was operated upon on 1-6-1979. He was discharged from hospital on 25-7-1979 and two to five months rest was recommended. Learned defence counsel, however, obtaining permission from the trial Court, cross-examined him.

19. Learned trial Court on examination of record giving benefit of doubt acquitted Nawaz and Amir son of Sardara co-accused of all the charges but believing the motive, ocular evidence, the evidence of the recoveries of the weapons of offence and that of absconsion convicted and sentenced the appellants as stated above.

20. Learned counsel for the appellants contended that the prosecution has filed to prove its case beyond reasonable doubt against all the appellants inasmuch as the eye-witnesses are closely related to the deceased; that the statements made by them are inconsistent; that it was not possible for the eye-witnesses to identify the culprits that in fact the crime was committed by unknown persons in a dark night; that the appellants other than Yara, Ghulam Hussain, Muhammad Khan and Amir son of Ghulam have been involved on account of enmity and suspicion; that the recoveries of the weapons of offence are highly doubtful; that the motive as alleged by the prosecution is false as the parties had compromised the dispute years before the occurrence and that mere abscondence of Zulfiqar appellant is not sufficient to convict him on capital charge. Conversely, learned counsel for the State, assisted by complainant's counsel has supported the judgment of the trial, Court.

21. We have anxiously attended to the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence which has been produced by the prosecution, the statements made by the appellants and the circumstances appearing in the case, with care. We find that the occurrence took place at 2.00 a. m. on 30-8-1980 and the FIR was lodged after two hours i.e. at 4.00 a.m. The distance between the place of occurrence and the police station is 3 miles. There is nothing on record to suggest that the FIR was not recorded at the time and place as it purports. No suggestion with-regard to the registration of the FIR after preliminary investigation was given to Dost Muhammad complainant. The omission of the names of the 4 co-accused and their features as well shows, that the FIR was honestly lodged. It seems to us that the FIR Ex. PT is a genuine document.

22. Since the three eye-witnesses namely Dost Muhammad, Akbar and Nazir, who claimed to have seen the appellants causing death of Manak and Muhammad Afzal and injuries to the P.Ws, are closely related to the deceased and there had been a land dispute between Muhammad Hayat, father of Manak deceased and Ameer, father of Zulfiqar appellant, therefore, we propose to appreciate the ocular evidence in the light of the guiding principles laid down by the Supreme Court in case 'Niaz. v. The State' reported as P L D 1960 S C 387, wherein it was observed:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact, witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt". As for the first question, we find that since there are injuries on the person of Dost Muhammad P.W.11 and Akbar P.W.12, so their presence on the spot at the time of occurrence is very much established. The occurrence having taken place just outside the house of Hayat, father of Nazir P.W.13, his presence was also natural. Ameer acquitted accused, his sons and Nawaz, the five accused named in the FIR, are distantly related to the eye-witnesses. They were fully known to them before the occurrence. The occurrence took place on 17/18 of the lunar month and as such, the eye-witnesses were in a position to identify them. So, it could be legitimately concluded that the three eye-witnesses in fact saw the occurrence and had identified the five accused named by them in the FIR. Since the remaining four accused were not known to them previously and the identification was based upon a momentary glimpse in the confusion and pandemonium at that moment at night even though it was moonlit, it was not humanly possible for Akbar and Nazir PWs to retain in mind the features of the four unnamed persons for about two years and identify them in the identification parade held after such a long period of the occurrence. These four appellants, namely, Yara, Ghulam Hussain, Muhammad Khan and Amir son of Ghulam had complained before the Magistrate (PW 14) at the time of identification parade that they were shown to the eye-witnesses in the police station before they were arrayed in identification parade. It is worth notice that Dost Muhammad (P.W 11) the complainant, could not identify Yara, Ghulam Hussain and Muhammad Khan alias Manak, appellant, in the identification parade. Failure on the part of the complainant to identify them in the parade is of great significance. Furthermore, the features and description of the aforesaid four appellants have neither been mentioned in the FIR nor in statements of Akbar and Nazir and eye-witnesses, recorded under section 161 Cr.P.C. We, therefore, feel that these four appellants were shown to the three eye-witnesses before they were arrayed in the identification parade, This evidence is, therefore, ruled out of consideration.

23. Coming to the next question, i.e., whether the eye-witnesses can be relied upon for convicting the appellants, without corroboration, we find that the eye-witnesses have thrown the net wide enough to involve as many as nine persons including all ablebodies persons of the family of Amir. acquitted accused. Zulfiqar, Gulla and Ahmad are sons of Amir and Nawaz acquitted accused's sister was betrothed with Gulla appellant before the occurrence. The number of the persons whom they have named and charged with the commission of crime does not appear to be commensurate with the number of the injuries and the harm done to the deceased and the injured witnesses. Rather it exceeds and from the circumstances, it appears as open to doubt if the number of the culprits given was true. The consequence of the above observation must necessarily be that their evidence should be examined closely and should not be accepted and acted upon unless substantially corroborated qua each appellant. So in order to exclude possibility of an innocent person being convicted it would be imperative to seek corroboration of their evidence, more particularly in the view of ever present tendency in our society to implicate innocent with guilty. We have thus decided to look for some additional evidence/ circumstance in support of ocular testimony so as to create that degree of probity and certainty which can be made a safe basis for their conviction. For the purpose of corroboration the prosecution relied upon the circumstances of the motive, the recovery of weapons of offence from the appellants, medical evidence and absconsion of Zulfiqar appellant after the commission of the crime. We are fully conscious that for corroboration it is not necessary that there should be the word of an independent witness supporting the statement of an eye-witness. The same may be afforded by anything in the circumstances of case satisfying a reasonable and prudent mind that the witness has spoken the truth, while naming the individual accused. We have anxiously looked around for independent corroborative evidence which may be relied upon to rehabilitate the evidence of the eye-witnesses. On careful appraisal of the alleged corroborative circumstances, we would now examine if circumstantial evidence relied upon by the prosecution can serve as corroboration. So far as the motive is concerned, in the instant case, mutation of the exchange of the disputed land was attested 7 years before the occurrence and Said appellant had taken possession of the land given to him in exchange by Muhammad Hayat. It has been admitted by Dost Muhammad (PW 11) that there was no grievance or dispute regarding this land for the last 5/7 years. As for the second motive which was the immediate cause of attack on the deceased and the PWs i.e., cutting of three trees of the complainant by Zulfiqar and Gulla appellants and the taking place of grappling between Afzal and Manak deceased on one side and Zulfiqar and Gulla appellants on the other side, it can equally be a reason for false implication of Zulfiqar and Gulla appellants on account of enmity or suspicion. It is well settled that the enmity is a double edged weapon which cuts both ways, butt which way it actually cuts depends on the facts of each case. In the circumstances of the present case, we are of the view that the benefit of the maxim that enmity/motive cuts both ways cannot be given to prosecution because the reasonable possibility of the false implication of the persons named in the FIR or their exaggerating the number of accused or their implicating others on account of ill-will or suspicion that they might have killed the deceased or might have hand in the said murders cannot be excluded.

24. The recovery of gun in the absence of the recovery of the crime empty from the spot and the recoveries of Sotas which were not stained with blood are also of no avail. So far as the recovery of blood-stained hatchet P.7 from Ahmad appellant is concerned, we find that the same has not been proved beyond all reasonable doubt, inasmuch as the Kotha wherefrom Ahmad appellant had got recovered this hatchet was jointly occupied by Gulla and Zulfiqar appellants, as stated by Muhammad Aslam Shahab SI (PW 17). Ahmad appellant was arrested on 14-9-1980 and the recovery was effected on 27-9-1980, almost on the last day of his physical remand. The occurrence took place on 30-8-1980. It is, therefore, hardly believable that Ahmad, appellant, or the co-accused, namely, Gulla and Zulfiqar, appellants, who were in the joint possession of the Kotha, would have kept hatchet in blood-stained condition although they could easily wash away the blood before its recovery. It seems to us that hatchet P.7 has been planted upon Ahmad, appellant. This piece of evidence has, therefore, to be excluded from consideration. As for the medical evidence, needless to mention that the same can hardly corroborate the identity of the culprits.

25. There however, remains circumstance of the abscondence of a `Zulfiqar. The occurrence took place on 30-8-1980. Zulfiqar absconded thereafter. Ghulam Hussain Constable (PW 4) was entrusted with the service of warrant Ex-PW4/A against Zulfiqar. He searched for him at different places, but could not find him, as he went underground. Thereafter, proclamation' Ex-PW4/D was issued by the Magistrate against Zulfiqar appellant, copy of which was also affixed on his door and on the notice board in the Court premises of Bhalwal. The report of the process server is Ex.-PW4/E. Muhammad Aslam Shahab S.I./SHO, P.W.17 has also proved the proceedings relating to the proclamation of Zulfiqar as an offender. Despite proclamation issued against him, he remained absconder for about 2 years and was arrested on 7-5-1982. We do not see any reason to disbelieve Ghulam Hussain F.C., P.W.4 and Muhammad Aslam Shahab S.I./SHO, P.W.17. The circumstance of the abscondence of Zulfiqar appears to be incompatible with his innocence and incapable of explanation upon any reasonable hypothesis, other than that of his guilt. The abscondence of Zulfiqar for about 2 years truly reflects his guilty mind. This circumstance which has satisfactorily been proved beyond reasonable doubt can be safely used to corroborate the statements of the eye-witnesses qua Zulfiqar appellant.

26. The upshot of the above discussion is that there being no satisfactory corroborative evidence/ circumstance against the appellants, other than Zulfiqar, we give them the benefit of doubt by way on abundant caution. They are acquitted of all the charges and shall bpi released forthwith, if not required to be detained in some other case. Since there is satisfactory basis for upholding the conviction' of Zulfiqar appellant, his conviction is maintained. There is no mitigating circumstance in his favour, therefore, the extreme penalty awarded to him is justified. His appeal is dismissed. The reference is accepted. The death sentence awarded to Zulfiqar IS confirmed. For the same reasons Cr. R. No. 573/83 and Cr. ft. No.574/83 are also dismissed. M.Y.H./Z-17/L Appeal dismissed.