1995 P Cr (PLP)

(b) that the last seen alive evidence is of a nature that it does not lend any support to the prosecution evidence especially for the reasons that the deceased left the house a day prior to the alleged occurrence and went to village Dadocha as per version of the prosecution. Thus, the time gap in between is such that it cannot be called that last seen alive evidence is worth consideration; (c) that both the eye‑witnesses are real brothers of the deceased. Admittedly, there is enmity between the appellants and the deceased family. The evidence of such like witnesses cannot be relied upon unless corroborated by some evidence coming forth from independent source, which lacks in this case; (d) that as per story of the prosecution, both the eye‑witnesses, real brothers, happened to see the incident of murder. Their presence at the alleged place of occurrence is highly unnatural and can be said that their presence has been shown with a view to make out some ocular evidence which is highly doubtful and unreliable. The place of occurrence is located at such a site that even if the story of the prosecution is believed that these witnesses were going to village Dadocha in pursuit of their deceased brother, their presence, especially at the alleged time of occurrence, cannot be accepted. The place of occurrence is located in deserted place where arrival of these witnesses in the given circumstances seems to be highly impossible. Learned counsel categorically stated that the deceased was done to death but the occurrence was unseen and for ulterior motive the complainant party in conspiracy with the police made the real two brothers as eye‑witnesses with a scheme to make out some case against the convict/appellants; (e) that the conduct of both the alleged eye‑witnesses at the time of occurrence as narrated is such that it also creates doubt in their version. A real brother was done to death in their presence allegedly but in spite of that their clothes are not stained with blood. It was expected normally of the real brothers that they must have tried to move or carry their brother who was allegedly injured in their presence;

19. On the other hand, learned State counsel Raja Muhammad Ayul Kiani opposed the contentions of the learned counsel for the appellants stated:‑‑ (a) that in this case there are two eye‑witnesses though they are real brothers of the deceased; and (b) that the weapons of offences recovered at the instance of the accused, match with the empties of .7, mm rifle and .12 bore pistol.

20. Learned State counsel reluctantly opposed the prayer of the appellants, as at one stage he frankly stated that the prosecution case was full of weaknesses. Both the eye‑witnesses are chance witnesses and in fact their presence at the place of occurrence at the critical time seems to be highly unnatural. Because the place of occurrence is located on the northern side whereas village Dodacha is located on eastern side of Bunna Gurha the residence of the complainant.

21. He also conceded that regarding type of weapons of offence, improvements have been made by the prosecution witnesses. In addition to that non‑matching empties allegedly taken into possession from the place of occurrence, demonstrate that at least two other weapons, of offence were also used in the incident. Alternatively it can be said that there were more than two accused who happened to commit the murder and left behind the empties 14 in number at the place of occurrence of different description.

22. I have heard the arguments of the learned counsel for the parties gone through the statements of the prosecution and defence evidence minutely; for the just decision of the case.

23. The prosecution has produced the following type of evidence. (i) Ocular evidence. (ii) Recovery evidence. (iii) Medical evidence.

24. As far as the ocular evidence is concerned, there is no denial that both the eye‑witnesses are real brothers of the deceased. They are residents of Burma Gurha while the place of occurrence was located in the northern side of their residence. According to the prosecution version both the brothers left their house on 25‑12‑1990 in the morning in search of their deceased brother for village Dadocha, which is located on the eastern side. Naturally, if they were to go to village Dadocha, they could not turn towards north to reach village Dadocha which was situated on the eastern side. Arrival of both these witnesses at the critical moment when allegedly the appellants were fighting firing at the deceased does not appeal to reasoning by any dint of imagination. Their arrival at that moment is such a chance which creates doubt and puts strong dent in reliability. Lying of dead body in a dense jungle where no Pacca or. Katcha path leads, compels me to be blunt in saying that the story of eye witnesses of coming at the place of occurrence and going to police station, a the critical moment is afterthought with a view, to make both these brothers a: eye‑witnesses of the occurrence. This belief gets further strength when the prosecution case is that 14 empties were recovered from the place of occurrence. Seven bullet empties of 7 mm rifle and 7 empties of .12 bore pistol But out of seven bullet empties only one matches with the .7 mm rifle allegedly recovered from 'an accused and two .12 bore empties match with the .12 bore pistol pistol allegedly recovered from the other accused. There is no explanation from the prosecution with regard to the other empties not matching with both the weapons and as to who happened to fire those. The outcome of this is that at least there were four weapons used in the occurrence. It can safely be said that there were more assailants than two but the version of two eye‑witnesses is only with regard to the two. Here it may be stated that a person can tell a lie but the facts do not. This circumstance also damages the veracity of the eye witnesses.

25. Learned trial Court has mentioned that there is evidence of last seer, alive of the deceased who left the previous night in the company of the accused from his residence. The time gap, the distance and the place of occurrence leave no scope to resort to the last seen alive principle of evidence.

26. As for as the recoveries are concerned, it is a case of the prosecution that the empties of the alleged weapons of offence were taken into possession from the place of occurrence on 25‑12‑1990. The weapons were recovered on 1‑1‑1991. Both the weapons and all the recovered empties were despatched to the Forensic Science Laboratory on the same date i.e. 1‑1-1991. This create doubt in the prosecution case and also about the honest investigation. Why the empties were kept in the police station for about 6/7'aays and sent to the Laboratory instantly when the accused were, allegedly arrested and their statements recorded? Failing to do fairly belittles the honest working of the investigating agency and can be said that it was not fair and honest.

27. There is crude improvement regarding the bore of pistol. According to F.I.R., .30 bore pistol was used but later on ^it was changed to .12 bore Obviously it was changed with a view to cover the lacuna and probably it was added after getting the deceased medically examined from the doctor who recovered the pellets from the lead body. .

28. There is conflict between the medical and ocular evidence about the numbers of shots fired at the deceased. According to F.I.R. and the statement of the complainant 10/12 fires were shot at the deceased by Rehmat Din accused with his .30 bore pistol which hit him on his abdomen. On post mortem there were neither 10/12 fires shots injuries on the abdomen of the deceased nor of .30 bore. This also belies their presence as eye‑witnesses.

29. The description of the place of occurrence has been given besides other by' P.W.4 Abdul Hamid P.W.5 Shakeel Anwar and P.W.7 Iftikhar Ahmad, Patwari, Naqsha Navees. As per statement of P.W.4, I quote the relevant portion of his statement below:‑‑ "The, place of occurrence is' much far away than the house of the accused from our house. None of members of our house contacted the houses of accused in the morning of 25‑12‑1990 to know about the deceased. Village Upper Gurha is a bigger village than their village and it is towards east of our village. Village Dadocha is towards south east of village upper Gurha. The place of occurrence is towards north of village Upper Gurha. I and Shakeel were not carrying any arm, when making search for the deceased. We started treading the passage straight away leading to the place of occurrence and did not go here and there." According to P.W.5 Shakeel Anwar the location of place of occurrence has been described in the following words:‑‑ "Our village is towards west of the place of occurrence and not in the direction of west‑south." Lastly, P.W.7 Iftikhar Ahmad, Patwari made detailed statement regarding the description of location of the place of occurrence. As per his statement, it is located on the northern tide of village Upper Gurha, while village Dadocha is towards east. Thus the version of both the alleged eye witnesses that they went out in search of deceased from their house‑Bunna Gurha towards Dadocha and reached the place of occurrence on the critical moment does not appeal to reasoning. The place of occurrence is towards northern side of the village Upper Gurha while‑village Dadocha is located towards, east‑south side of this village. Going towards cast and reaching at the place of occurrence, which is northern side, as stated by this witness is not understandable. Thus, the aforesaid diametrical conflicting statements cannot be believed.

30. Regarding motive, the prosecution miserably failed because alleged abductec and her relation has not been proved to connect the accused. The trial Court has also not rclicd upon the prosecution version of motive.

31. There is an important feature in this case brought to light by the Investigating Officer P.W.11, who admitted in cross‑examination that the deceased stood involved as accused in 5 to 6 cases. He stated that he used to be associated in investigations of theft and dacoity cases. Once he resorted to firing while, abducting a woman. In addition to that there was a case of murderous assault against the deceased. It was viewed by this witness that deceased was habitual in committing crime and used to conceal himself in jungle t'6 save his skin from the legal process. Both the brothers (P. Ws.) of the deceased concealed this part of the deceased's life. In addition to this, it is sufficient to quote here that prosecution case is that .12 bore gun was taken into possession from the place of occurrence on the very first day. While P.W.5 Shakeel Anwar has categorically stated that .12 bore gun of the deceased was taken away by Rehmat Din after commission of crime. This all seems to be a fabrication which is further confirmed by the statement of P.W.10 father of the deceased, who stated that he produced the .12 bore gun of the deceased to the Investigating Officer, which was taken into possession at the place of occurrence. This sounds me to discredit the story of deceased's accompanying the accused with his gun in the presence of his two brothers and mother from his place of residence. Reality seems to be that father was made to produce the gun by giving out twisted story of the alleged occurrence.

32. With the aforesaid background, the statements of the accused and the defence evidence have important bearing in the matter. Persistently from the beginning the version of the accused remained that they were busy, on the day of incident, in their village in the construction of mosque building. To that effect D.W.2 Mher Khan corroborated their statements, who is Lumberdar of the village.

33. Critical analysis of the facts and circumstances make this Court to believe that it was unseen occurrence. D.W.1 Ghulam Mustafa disclosed the incident of murder to the relatives of the deceased, on which they came to the place of occurrence and then after consultation and deliberations reported the matter in the police station with a view to implicate the accused in this case falsely. The incident was unseen. Both the alleged eye‑witnesses did not see the occurrence and have deposed falsely. In brief the prosecution evidence stands discredited for the following reasons:‑‑ (a) that both the alleged eye‑witnesses are closely related to the deceased being brothers and are inimical towards the accused. This fact stands admitted; (b) that there are crude improvements in their statements regarding the type of weapon used in the commission of crime and also the manner in which they claim their presence at the place of occurrence at the critical moment. They arc chance witnesses and their arrival in the jungle and witnessing the occurrence after covering the distance of few kilometres seems to be afterthought; (c) that the last seen alive evidence is of no importance especially when there is gap of extensive time in between the occasion of seeing the deceased for the last time in the company of the accused, time of incident and the distance; (d) that the recovery evidence cannot be trusted in the circumstances when crime weapons and empties were kept in the police station together by the investigating agency. In spite of the fact that about 6/7 days earlier the empties were taken in to possession from the place of occurrence; (e) that the conflicting statements do go to the root of the prosecution case regarding which it can be said that crude improvements make the prosecution case highly doubtful; (f) that the motive has not been proved as alleged to connect the accused with the crime; and (g) that for the just decision of the case punishable with capital punishment, the prosecution case must be going forthwith from the highly reliable sources which lack in this case.

34. In. the given facts and circumstances of the case the statement of the accused cupled with their defence evidence do lend some support in doubting the authenticity of the prosecution version.

35. For the foregoing reasons, I accept this appeal, set aside the conviction ordered by the learned Additional Sessions Judge, Islamabad vide his order, dated 26‑5‑1992 and acquit the accused/appellants by giving them benefit of doubt. N.H.Q./M‑2088/L Appeal accepted: