AFTAB FARRUKH, J.-Manzoor Shah, son of Muhammad Shah, aged about 24, has been convicted and sentenced to death and a fine of Rs. 200 in default whereof he is directed to undergo two months' rigorous imprisonment, by Malik Ahmad Nawaz, Additional Sessions Judge I, Sahiwal, vide his judgment dated 26-2-1976, for the murder of one Muhammad Yar in his own house situated in village Dalelke at a distance of ten miles from Police Station, Arifwala, District Sahiwal, on the night between the 16th and 17th of April, 1973, at about 10 p.m. In a separate trial, he has also been convicted and sentenced to one year's rigorous imprisonment under section 13 of the Arms Ordinance, 1965. Murder Reference No. 234 of 1976 and Criminal Appeal No. 410 of 1976 arising out of this case are being disposed of together by this judgment.
Mian Muhammad Yasin Wattoo, counsel for the appellant, was not in attendance. We have gone through the record and have been assisted by Syed Afzal Haider Shah who was appearing for the State and Ch. Rehmat Ali Advocate, junior to Mian Yasin Wattoo, remained in attendance as he is not yet qualified to be an Advocate of this Court.
2. The prosecution version in brief is that at about 10 p.m., on the night of the occurrence, the complainant Muhammad Yaqub, his son Muhammad Yar and Noor Ahmad son of Shah Muhammad (P. W. 11) were chatting with each other while lying on their cots in their own Ihata when Manzoor Shah appellant armed with a '12 bore country-made pistol entered from the Eastern side of the Ihata on which side there was no wall, and instantly fired at Muhammad Yar which hit him on the face, and the appellant ran back. The complainant could not intervene being empty- banded. Placing Muhammad Yar on a cot, he was taken to Civil Hospital, Arifwala, in injured condition. His arrival there is noted at 4-30 a.m. On the 17th April 1973. Dr. Mushtaq Abroad sent intimation vide ruqqa (Exh. P. F.) along with the medico-legal report (Exh P. O.) to the S. H. O.
Arifwala, whereupon Muhammad Bakhsh A. S.1. (P. W. 14) reached the hospital at about 8 a.m. And recorded the statement (Exh. P. A.) of Muhammad Yaqub (P. W. 10), father of the deceased, as Muhammad Yar was not in a fit condition to make a statement. The case was initially registered under section 307, P. P. C., but subsequently altered to section 302, P. P. C. As Muhammad Yar expired at 11-30 a.m. On the same day.
Formal F.
1. R. (Exh. P. A./1) was recorded at 8-15 a.m. On 17-0-1973 by Fazal Ilahi A. S.1. Who has not been produced.
Muhammad Bakhsh A. S. I. (P. W. 14) arrested the appellant on 30-4-1973 in an injured condition and on 31-5-1973, he is stated to have led to the recovery of one country-made .12 bore pistol (Exh.
P. 3) and three live cartridges (Exh. P. 4/1-3) which were taken into possession vide Memo. Exb. P. D.
Muhammad Arif (P. W. 9) first-cousin of the complainant, has appeared in Court to support this recovery. We may state at this very stage that no empty having been recovered in this case, the recovery of pistol (Exh. P. 3) or the live cartridges (Exh. F. 4/1-3) has no corroborative value as far as the murder case is concerned. Needless to mention that the recovery is highly belated. i. e. Even a month after the arrest of the appellant.
3. The alleged motive for the case is, that Manzoor Shah appellant was earlier living in the house of the deceased and was noticed by the deceased taking undue liberties with Mst.Sakina (P. W. 12) and a few weeks before the incident the appellant was turned out of the house an this account, who) held out threats while leaving, Mst. Sakina P. W. And Muhammad Yaqub complainant, her father, have specifically deposed in this regard, we have no hesitation whatsoever in accepting this aspect of the case. But motive alone, is not sufficient to base a conviction, that may well be the reason for suspecting the appellant as the assailant. Suspicion howsoever strong, cannot take place of proof. This view has the support of the Supreme Court in the case reported as Muhammad Ibrahim v. Arif and another 1975 SCMR 142.
In this case, the essential point for determination is one of establishing the identity of the assailant beyond reasonable shadow of doubt, towards which aspect we have primarily diverted our attention and are going to deal with it at later stage.
4. The conviction rests on the testimony of Muhammad Yaqub (P. W. 10), father of the deceased, Mst. Sakina (P. W. 12), sister of the deceased, Noor Abmad (P. W. 11), maternal uncle of the deceased, and vat takkar witness Noor Ahmad. Son of Haider Khan, who appeared as P. W.
13. We have already made our observations with regard to the evidence of recovery and motive. At this very stage we will also dispose of the evidence of vaj takkar P. W. Noor Ahmad, son of Haider Khan by rejecting the same on the short ground that be is not named in the F. I. R., which has been recorded on the face of it nearly ten hours after the incident. If we presume the incident at 10 p.m. As alleged, the gun-fire would have drawn the attention of the village people very soon and the vaj takkar witness who had seen the assailant running away, would be attracted to the scene of occurrence within no time, he would naturally mention to all concerned what he had seen. We cannot presume Muhammad Yaqub to have carried the cot to the Civil Hospital instantly on infliction of injuries on Muhammad Yar deceased. Therefore, vaj takkar if true, the name of the witness would have been mentioned in the F.I. R.
5. While scrutinising the ocular testimony, we have to bear in mind the plea of the accused as suggested in cross-examination to all the material witnesses which is to the effect that the occurrence took place at night time, even if anyone was there he must have been asleep, and the assailant escaped unidentified and further that he had been named on account of suspicion. As far as the presence of Muhammad Yaqub and Mst. Sakina P. Ws. Is concerned, it has been asserted that they were on their lands in village Alloke and they reached their house on receipt of intimation.
We have grave doubts in our minds regarding the time of incident being 10 p.m., as alleged by the prosecution. The arrival in the hospital at Arifwala is recorded as 4-30 a.m. When people are being carried on a cot. The pace is faster than the normal walk of a person. Carrying the injured to hospital on a cot, we presume, would be possibly at a still quicker pace. We would expect them to cover ten miles in about a period of 33 to 4 hours. We would allow a margin of another half an hour or so for recovering' from the shock and getting ready to proceed to hospital, though the ease of the complainant before the police and Committing Magistrate is that they left after an hour or an hour and a half. Calculating is in this manner, the occurrence could have possibly taken place around 12 or 11-30 at mid-night when normally we would expect inhabitants of the house to be asleep. Ws are not ruling out the possibility of the occurrence having taken place at 10 p.m., but at the same time we cannot rule out the possibility of the occurrence having taken place at about 12 or 11-30 p.m. And this being a settled, principle of law that when two views are equally possible, one to favour of the accused has to be accepted and we do the came. Sher Hassan v. The State PLD 1959 SC (Pak.) 480. We are further inclined towards this view of considering them to be asleep for reason of occurrence being night time. If the assailant was bold enough to attack while the deceased and the witnesses were awake and chatting, we do not find any reason for his choosing the night time. He could have done the same at any time during the day. And at any place,. By observing the movements of the deceased. We have a feeling that the time, the place of occurrence, and the situation have been chosen by the assailant to ensure that he escaped unidentified. In favourably considering the possibility of the P. Ws. Being asleep, even if assumed to be there at the tame of occurrence, we find support from the under-quoted cross-examination of Noor Ahmad (P. W. 11) :-- "It is incorrect to suggest that the deceased was lying asleep when I reached there. It is incorrect to suggest that I stated before the Committing Magistrate that Muhammad Yar kept on sleeping.
(Confronted so recorded). I had been talking with Yaqub P. W. About the turn of water. It is incorrect that the deceased was not awake during my talk with Yaqub P. W. I did not state so before the Committing Magistrate. (confronted so recorded). I stated before the police that the deceased was lying on the cot and was awake. When I was talking with Yaqub P. W., both Mst. Aisha and Sakina P.
Ws. Were asleep and they woke up when the deceased was fired at by the accused."
The reason for denying the facts stated before the Committing Magistrate is understandable.
It is surprising that in the site plan while everything else is indicated, the place from where the assailant fired or the direction from which he came and the direction in which he went back, is not indicated. It would not be so if the witnesses were awake and they had seen the assailant firing.
They would certainly point out these locations or directions to the Investigating Officer or to Farooq Ahmad Draftsman (P. W. 4), who prepared the site plan, which they did not according to P. W. 4.
Observing the site plan, we find that close to the wall of the room of Muhammad Yar deceased in the South of the Thata, there is also an entry to the lhata which too is without a door. If one was to sneak in by the side of this wall, which is North-South, he could conveniently reach unnoticed close to the charpoy of the deceased, which is at point No. I straight in line of this wall, fire the single shot and in a split second turn back and escape in the same direction, even before the witnesses rise from their asleep. We would go to the extent of saying that even, if they were awake, the assailant would be in the cover of the wall and its shadow, despite the moon light, before the witnesses could really reflect. The distance between entry from the eastern side and the cots of the deceased and the P. Ws. Is shown as 5 Karams. The appellant is stated to have entered with a pistol in his hand. If the witnesses were awake and chatting with each other, we are sure, on finding an intruder entering in at night time with a pistol in his hand and had the appellant been identified with the background as alleged, they would have all at once become alert and 113 all probability, run for the life or take some sort of cover before the appellant could have travelled nearly 25 feet. Even if we assume that the assailant had . Entered from the eastern side, it is more probable that the witnesses, if any present there, were asleep and arose only on the fire, whereafter he instantly ran out. The maximum that the witnesses could have seen, if we assume them to have responded, will be the back of the assailant and in these circumstances we cannot rule out the possibility of mistaken identity.
From the cross-examination of Muhammad Yaqub (P. W. 10), father of the deceased, appearing at page 37 .Of the printed paper book, .The case of the prosecution appears to be that the accused eras ai a distance of one pace from the foot side of the cot of the deceased when he fired and the cot of the deceased was lying in East-West position, while its pillow side was towards the West. If we were to assume this position correct and further that the appellant had entered from the Eastern opening, then the direction of the wound would have been different.
In a similar case of a single shot having been fired by the assailant in a night occurrence, this Court in Mumtaz v. The State 1977 P Cr. L J 603, allowed the appeal and acquitted the accused.
6. The possibility of mistaken identity cannot be ruled out. The maximum the witnesses could have noticed would be the back of the assailant and with the background mentioned as motive, they will naturally be justified in fixing their doubt on the appellant as the assailant, if the gait and get up of the real assailant had remotest resemblance with the appellant.
Case reported as R. v. McGrath (1949)2Al1ELR495, is an interesting case on the point of mistaken identity. The facts were that some goods were stolen, and were moved in a lorry, which it was said, the accused was driving, at about 9-55 p.m. On September 22, 1948. The lorry was stopped by two police officers who found the stolen property in it. They had ample opportunity of observing the men who were driving or were in the lorry. One of the men was immediately taken into custody and removed to the police car. The other remained in the driver's seat and a police officer got up beside him. On the way to the police station, to which he was ordered to drive the lorry, and when the lorry was going at a considerable pace, the driver opened the door of the lorry and jumped out.
It is obvious that the two police officers, who gave evidence and had picked out the men at an identification parade, had an. Ample opportunity of seeing and recognising the man who was driving the lorry. They had no doubt that it was the appellant, and there was no suggestion that the officers were giving false evidence, nor was it questioned that they gave their evidence carefully and properly in the Court below. The appellant's defence, if it were true, was the best possible defence that it was a case of mistaken identity and that he had nothing whatever to do with the lorry that night.
The accused was convicted of receiving stolen goods and his defence, an alibi, was rejected by the Jury. His appeal against conviction when first before the Court, was dismissed on the ground that there was evidence before the Jury on which they could properly have reached their verdict, and that the trial had been properly conducted. The Home Secretary later caused further inquiries to be made, which tended to establish the alibi set up by the appellant. The Home . Secretary made a reference to the Court of Appeal, and the Court held on the new evidence that "in these circumstances, the Court feels that, if these facts bad been before the Jury, the probabilities are that they would have felt that the two police officers, whose good faith is not attacked but whose identification is attacked, were mistaken.
7. It appears to us that the case has been set up after considerable deliberations and until the last moment, the complainant party was not decided in regard to the fixing of the time as early in the morning or as early in the night, so as to convince the Court regarding the possibility of establishing the identity of the assailant. The Medical Officer Civil Hospital, Dr. Mushtaq Ahmad, who being dead was not available at the time of the trial, sent the following intimation to the police :-- "A case of M/L nature alleged to have been caused by fire-arm on 17th Aped 1973, at 4-30 a.m. He is in semi-conscious state. The M/L report is also attached herewith. This is for your information and immediate action please."
This document has been put to Qaai Muhammad Tufail (P: W. 7). The time of despatch of this intimation is not noted. The time of receipt of this ruqqa by Muhammad Bakhsh A. S. I. Is neither noted nor stated at the trial. We have only this fact on record that the police reached at about 8 a.m. The same doctor in the medico-legal report has noted the time of arrival of the injured as 4- 30 a.m. Both times, i.e. In Exh. P. F. And in Exh. P. O. Being recorded by the same person, contradictory of each other, make the whole matter fishy. If we were to assume the time of arrival as 4-30 a.m., normally we would expect the intimation to have been sent within a few minutes. Arifwala is a small place, police station would be nearby, in fact, normally at small towns it is almost next-door to the civil hospital, we would expect the police to respond to it fairly quickly and the arrival 'of the police should have been within half an hour or so of the arrival of the injured in the hospital allowing a fair margin for the despatch, receipt and response by the police on intimation. So, counting back the time from 8 a.m., which is admittedly and undisputedly the time of the arrival of the police in the hospital and the recording time of F.
1. R. (Exh. P. A./ 1), we have grave suspicion in our minds regarding the genuineness of the entries of time in Exh. P. O. Or in Exh. P. F. In the alternative there is no explanation for the delay of 3J hours in the recording of F. I. R. (Exh. P. A./I). Muhammad Bakhsh A.
S. I. (P. W. 14), the Investigating Officer, did not contradict the suggestion that other persons were also associated in the investigation. He has avoided the question in the following terms appearing in his cross-examination :- "It is incorrect that the occurrence took place at 4-30 a.m. And that the assailant of the deceased was not known. I do not remember if I associated Sadiq, brother of Yaqub P. W., and his son Maqbul in the investigation of this murder case and for this murder."
It appears that the complainant party in collusion with the Investigating Officer and the Doctor were busy in guessing the probable assailant and resolving the question of fixation of the time of the incident in relation to sufficiency of light for identification, and to begin with, they were inclined towards fixing the incident as one in early morning and, therefore, entered the time of recording the F. I. R. As 8 a.m. Keeping a margin of 3J hours for conveyance of the injured to hospital.
8. In this view of the matter, when we are in doubt about the time of occurrence, and we cannot rule out the possibility of the witnesses, even if assumed to be there being asleep, and the possibility of mistaken identity or of the culprit having escaped unidentified, with the first information report belated, we cannot uphold a conviction on a capital charge merely for the reason that the witnesses happen to be natural witnesses and apparently have no reason to substitute. There is no guarantee, unfortunately in our society, to the effect that witnesses apparently disinterested and in fact present, will commit themselves to, the whole and nothing but the truth, without any addition or omission. A slight addition or omission from the truth, more than often makes all the difference, between death, imprisonment and liberty of a citizen accused of an offence. Therefore, we are compelled, by the circumstances to scrutinize their evidence too with utmost care in the light of the facts on record and surrounding circumstances, and perform the extremely difficult task of sifting. The case against the appellant has not been proved beyond reasonable shadow of doubt. We, allow this appeal and acquit the appellant. He shall be set at liberty forthwith provided there is no other case pending against him.
AFTAB FARRUKH. J.-As the appellant has already served out the sentence of one year's rigorous imprisonment awarded to him under section 13 of the Arms Ordinance, 1965, this appeal has become infructuous and the same is dismissed as such.