1977 P Cr (PLP)

Left pleura was badly damaged and lacerated, its cavity was full of blood about four pounds and seven pieces of wads and multiple pellets were found and removed. Right pleura was lacerated at multiple places and its cavity was full of blood about 2 pounds with pellets in. Middle and upper lobes of left lung were punctured at multiple places. Upper and middle lobes of right lung were badly lacerated with pieces of fractured ribs and wads. In his opinion the death was caused due to haemorrhage and shock as a result of extensive damage of right lung and left lung. The injury of right lung was sufficient in the ordinary course of nature to cause death. Injuries to the left side of chest and arm were the result of exit of some pellets of injury No.

1. Injury to the left hand was grievous. All these injuries were caused by firearm and were ante-mortem. Time between injuries and death was immediate and between death and post-mortem was about 24, to 26 hours.

9. In addition to this medical evidence the prosecution had relied for its case at the trial on the testimony of Nawab Khan (P. W. 7), Ghulab (P. W 8) and Safdar (P. W. 9) for the ocular account of the occurrence, who bad in general supported the above narration of the occurrence, while two eye-witnesses Mst. Sarwar Jan, the mother, Javed, the bother of Basharat (deceased) and Munawar,

the identifier of dead body at the time of the post-mortem examination were given up as unnecessary.

10. The two appellants and their co-accused denied all the allegations made against them by these eye-witnesses and setting up a plea of false implication on account of their enmity with them pleaded not guilty to the charge. They, however, led no evidence in their defence.

11. Learned trial Judge rejecting out-right their plea of false implication held the two appellants guilty of the charge under section 302/34, P. P. C. but acquitted all of them of the second charge under section 307/34, P. P. C., in addition to the acquittal of Muhammad Sabir and Muhammad Bananas (their co-accused) of the main offence as stated above.

12. The conviction of the two appellants Munawar Khan and Allah Dad were challenged before me mainly on the following grounds: - (a) That the first information report was recorded at the spot after preliminary investigation till late in the night which would negate its time and place as given in its relevant column; (b) that interested-cur-hostile witnesses were set up after having been imported from the distant village abadi as eye-witnesses of tile occurrence (c) that the evidence of the alleged eye-witnesses was altogether rejected in respect of the charge under section 307/34, P. P. C. for an attempt on the lives of the prosecution witnesses and it was accepted only in part about the murder of Basharat (deceased) qua two of the four accused as the other two bad been acquitted of the offence under section 302, P. P. C. (d) that there was an apparent conflict in ocular and medical evidence (e) that the legal requirements of material corroboration of such tainted evidence had been discarded ; (f) that the independent evidence was available which had been shut out for reasons not far to seek ; (g) that no independent witness was produced to prove the alleged motive ; (h) that there was even no circumstantial evidence to connect the appellants with the alleged offence like the recovery of any crime empty from the spot or weapon from either of them ; (i) that the defence plea was sponsored during the earliest stages of the Investigation, and given due support.

13. On going through the record with the assistance of the learned counsel for the parties I am persuaded to agree with the above contentions most of which are admittedly correct.

14. The drawing out of the first information report after night fall at spot was confirmed by Gulab and Safdar P. Ws. themselves. The former had deposed that he remained at the spot till the arrival of the police in the Company of Nawab P. W. at about night time when his statement was recorded about the present occurrence on which his thumb-Impression was got affixed in his presence. Safdar P. W. had also disclosed that the police recorded the statement of Nawab P W. at the spot denying that he had thumb-marked it at the spot. He had, however, endorsed this fact before the Committing Magistrate but when confronted with the relevant portion at the trial he disowned it. He had, no doubt asserted in his examination-in-chief that he had gone to the police station along with Nawab P. W. Mst. Sarwar Jan and Javed (not produced), but he had made no mention at all of the lodging of any report by Nawab P. W. at the place. Anyhow his statement before the Committing Magistrate had left no room for doubt that after night fall he and Nawab P. W. came back along with the police to the spot where the complainant narrated the occurrence to the Thanedar and thumb-marked his statement. The evidence of Gulab and- Safdar P. Ws. had thus contradicted both Nawab and the Investigating Officer about the time (3-30 p m.) and the place (Police Station) of the recording of tie initial report. It could, therefore, be safely concluded that the original complaint was the result of prolonged deliberations and a preliminary inquiry about the occurrence and even about the names of the eye-witness to be nominated therein which would lend grave doubts to the A prosecution case as held in Abdus Satar v. State (1974 P Cr. L 1208), Aziz Jan and others v. State (1973 P Cr. L J 367) and Anwar v. State (1975 P Cr. L J 750). In the last-mentioned case it was observed that the sanctity attached to the first information report would vanish in such a case.

15. It was almost a common feature of such deliberated reports that some dependable persons are set up as eye-witnesses to support it and only close relations and partisans can serve that purpose. It was certainly true of this case as Nawab (P. W. 8) was it material uncle and Safdar (P. W. 10) a material cousin of Basharat (deceased) while Gulab P. W. was one of their trusted partisan. Learned trial Judge was, however, led into an error that Nawab and Safdar P. Ws. were equally related to the appellants which was apparently due to a belated claim made by Nawab P.W. at the trial. He had for the first tinge stated before him that Sabir (acquitted accused) was the son of his phuphizad sister which had to be taken as an after thought as he had neither mentioned this relationship with Sabir in his well-considered report nor in his statement before the Committing Magistrate. Anyhow he had failed to substantiate the same when cross-examined by the defence as he did not know the name of this phuphi nor could give the number of the sisters of his father adding that be bad never seen any of his sister. He then tried to change his position by saying that the maternal grand-mother of Sabir (acquitted accused) was the step-sister of his fattier conceding at the same time that he could not say how many stepsisters his father had. He connected Safdar P. W. with the appellants through himself as he was the son of his another sister. In his own statement Safdar P. W. had, however, claimed no such relationship with the appellant. Learned trial Judge bad thus attached undue importance to this unsettled relationship. He was likewise misled about the independence of Gulab (P. W. 9) as he did not seem to have carefully scrutinized the statement of this witness wherein he had first denied his involvement in any criminal case, but when Sultan's murder was mentioned to him in cross-examination be scoffed it off as a 25 years old affair admitting at the same time that he was challaned along with Banaras, the father of Basharat (deceased) and Nawab P. W. in that case; and that said Sultan was the relative of Munawar appellant who had also figured as an accused in the cross-case alongwith some of his other relatives. Ire had conceded in unequivocal terms that such cases were duty contested between them. Nawab P. W. had exaggerated the period intervening between these cases and the present one fixing it at 20 years while in his statement before the Committing Magistrate with which he was duly confronted he had mentioned it as 10 years. This prevarication was intended to express his non-alignment although be was an old and tested partition of Nawab P. W. and his other relatives. He had himself referred to some later criminal cases between the parties. One of these incidents involved the murder of one Ifzal in which Banaras, father of Basharat (deceased), Afzal (P. W. 4) and his father Jahandad were prosecuted. In the second occurrence Banaras, the father of Basharat (deceased) and brother of Nawab P. W. was fired at by Munawar appellant and Banaras (acquitted accused) who were prosecuted and convicted in consequence thereof. In the stress of this probing cross-examination Nawab P. W. lead to confess that there was long-standing enmity on account of criminal litigation between the complainant party including Gulab P. W. and that of the appellants. It might thus be due to his association with them through thick and thin that he had been confidently nominated by Nawab P. W. asp one of the eye-witnesses.

16. Any how all three of them, namely, Nawab, Safdar and Gulab P. Ws. resided in the abadi of the same village situate at a distance of l miles from the Bun Mianwali near which this occurrence had allegedly taken place. Gulab arid Safdar P. Ws. had admittedly come on the scene by chance at the relevant time and in order to show their presence at the spot at the time of tire occurrence they had to invent some excuses. Gulab P. W. stated that he had gone to the Bun with his cattle while Safdar P. W. had urged that he was proceeding to Taxilla to make some purchases for Eid, which was never mentioned in the first information report. If Nawab P. W. had seen him there with his cattle and Safdar P. W. had told him that he was proceeding to Taxilla for making such purchases when this unfortunate incident had taken place, it was not unlikely to expect from Nawab P. W. that he would have mentioned the same in the first information report. The appearance of such interested and inimical witnesses just by chance at such a crucial moment would not be free from doubt. 17 This doubt would magnify in ease of such witnesses when their evidence is accepted only in part on the main charge as two of the four accused had been acquitted for the offence under section 302, P. P. C, and it was rejected in toto about that under section 307/34, P. P. C. Learned Judge had, firmly ruled out the incident of alleged murderous assault by any of the accused on the prosecution witnesses, namely, Nawab and Safdar P. Ws. or rest. Sarwar Jan and Javaid (not produced). He had also found a strong element of improbability in the version put forth by these witnesses about it as Sabir whose sister had been abducted by Muzaffar would not have spared Basharat (deceased) it he was himself amongst the assailants. He had rightly observed that Sabir was supposed to have acted with real determination, ferocity and venom by wreaking his vengeance on trim, but he did not at all aim any shot at Basharat it did not appeal to reason that he would leave the satisfaction of his sense of revenge to others and himself contend with ineffective firing on innocent persons. Moreover in the F. I. R. Sabir was attributed gunshots (not shot) and even if his intended victims were Basharat's companions (his other family members), there was no earthly reason for Nawab, Sarwar Jan and laved at all to have escaped absolutely unhurt especially when they were not armed and the three assailants including Sabir were having lethal weapons with them. Learned Judge in rue opening lines of paragraph 10 of his judgment had also pointed out to a conflict in the oral and the medical evidence in view of the alleged number of shots fired as also the nature and direction of the injuries suffered, by the deceased. He had concluded of course rightly that in all probabilities Basharat (deceased) was hit by a single shot only, while according to the first information report both Munawar and Allah Dad appellants had fired one shot each, both of which hit him (Basharat) in his chest. In cross-examination the witnesses when questioned about the direction of these shots had insisted that both of them had fired at Basharat (deceased) from his front while the course of the mesile as indicated by the doctor was from the right to the left of his chest which is inconsistent with the assertion made in the F. I. R. The closer examination of the inlet wound was indicative of the fact that the firearm was almost placed on the chest before pressing its trigger to kill the victim and the absence of any smoking or blackening around it and the entry-enmesh of all the pellets through a small note 1 x1 along with seven pieces of wads was an eloquent testimony to confirm this conclusion. This feature of the wound also belied the eye-witness who gave the distance between the assailants and their victim as 2 feet when the latter was hit by the shots fired by them from their respective .12 bore pistols. The other companions of Basharat were following just behind him if the one shot had been consumed by Basher at the other shot must have caused injuries to some of them as they were in the same range but the absence of any injury on either of them would negate their presence at the spot. This apparent inconsistency in the medical and B ocular evidence will undoubtedly impair the credibility of these witnesses. Saindad v. The State (1972 S C M R 74), Bag Ali v. The State (P L D 1973 S C 23) and Khan Muhammad v. The State (P L D 1976 S C 303) are some of the authorities on this point.

18. In fact all the infirmities pointed out above in their evidence called for a material corroboration from some independent confirmatory circumstance, which was badly lacking in this case. This rule of prudence has been consistently adhered to by the Judges of the superior Courts in their judgments like the case of Sohni v. Bahadurl etc. (P L D 1965 S C 111), and Bagh Ali v. The State (P L D 1973 S C 321). It was observed in the latter judgment that the ocular evidence in order to carry conviction on a capital charge must come from an unimpeachable source anti must be supported from soma strong circumstance. Even the medical evidence although consistent with the ocular account was not considered a sufficient corroboration of such tainted evidence in Machhia's case (P L D 1977 S C 695) wherein their Lordships observed as under: "Medical evidence by itself and without more cannot throw any light on the identity of me assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies." In the case of rejection of prosecution evidence about some of the accused the requisite corroboration was insisted upon with more emphasis as in Gul Sher v. State (1968 S C M R 756) wherein only one of the four accused had been acquitted. Niamat v. State (P L D 1970 S C 13) was also on the same point. This legal requirement was further highlighted in a still later case of In re: Ghulam Muhammad v. The State (P L D 1954 Lah. 127) in the following terms: "In view of the acquittal of seven out of tea accused for the maintenance of conviction of the three appellants on the basis of the testimony of interested witnesses, insistence on independent corroboration becomes all the more imperative." In this case learned State Counsel sought to rely on the motive as an important factor which brought the two appellants and their co-accused together to embark upon this enterprise, bat it had no corroborative force as it had come on record from the mouth of the same complainant who had failed to inspire confidence about the main incident detailed by him like the other two eye-witnesses. In fact the evidence of one set of biased witnesses could not corroborate in law that of the other biased witnesses as held in Muhammad Hussain Qureshi v. The Crown (P L D 1954 Lah. 127) and Mst. Kaisari v. Sarkar (1973 P Cr. L J 156). Even the alleged abduction of Mst. Shahzadan had taken place two years earlier but no untoward Incident had taken place between the parties during this long interval. Neither any report had been lodged with the police nor any complaint had been lodged in any Court about it, so there was no cogent evidence about it either. There was no circumstantial evidence either like, the recovery of any empty or pellets from the spot or that of any tire-arm connecting either of them with the alleged crime was missing which had taken the sting out of the entire case.

18. In fact some independent evidence was available to provide the requisite corroboration as admitted by Nawab (P. W. 7) himself by disclosing that Dhok Dorab and Dhok Ditts were only at a distance of 100 yards from the place and soon after the occurrence some people had gathered at the spot who saw the accused going away from their respective weapons but none of them was cited as a witness in this case. Gulab (P. W. 8) had also deposed that 10 or 20 persons had reached the spot before Nawab, Safdar P. Ws. and Javed (not produced) had left for the Police Station and that ail of them informed those persons that the present appellants and their co-accused had murdered the deceased and run away. On the basis of this concession it was successfully urged that the evidence from the vicinity of the crime had been purposely shut out in this case anal Sikandar v. State (P L D1963 S C 17) was pressed in as an authority to support this contention. The exclusion of better evidence from the locality of the crime was also dis approved in Bashir Ahmad's case (1974 P Cr. L J 385).

20. In this case a contrary version appears to have been sponsored by the defence at the initial stages of the investigation. It was admitted that Basharat (deceased) had other enemies in the village as well and that the real culprit was one Tufail which assertion was supported by a large number of persons examined by the Sub-Inspector and some other persons were also joined during the investigation of the case as conceded by him ht the trial it was on account of this factor perhaps that the arrest of the appellant was put of for quite some days for which no explanation was coming forth from the side of the prosecution.

21. All these baffling features of the caw did not permit of any credence in the evidence led about this occurrence as it was replete with grave doubt, the benefit of which could not be denied to the appellants. I have, therefore, to accept this appeal and setting aside the conviction an sentence of these two appellants as well, direct that they shall be set at liberty forthwith, if not required in any other case. Appeal allowed.