ASLAM RIAZ HUSSAIN, J.--Pir Bakbsh, appellant, was tried along with his mother Mst. Azmat, his two maternal uncles Khawand Bakbsh and Allah Bakhsh and one Muhammad Ashraf, for the murder of Manzoor Hussain. The learned trial Court acquitted Mst. Azmat but convicted Pir Bakhsh and three co-accused under section 302/34, P. P. C. Pir Bakhsh was sentenced to death while the remaining three were sentenced to imprison--ment for life. Each of them was also sentenced to a fine of Rs.
1,000 and in default of payment thereof, to further one year R. I. Each. The fine if recovered, was ordered to be paid to the legal heirs of Manzur Hussain, deceased under section 544-A, Cr. P. C:
2. Feeling aggrieved, all four of them filed a joint appeal before the High Court. The High Court accepted the appeal with respect of Khawand Bakhsh, Ahmad Bakhsh and Muhammad Ashraf, and acquitted them, but dismissed the appeal qua Pir Bakhsh appellant, upheld his conviction and maintained his sentence.
The petitioner then approached this Court through Cr. P. S. L. A. No. 30/1978. Mst. Ghulam Fatima, the first informant and mother of the deceased also filed a Cr. P. S. L. A. (No. 18/78) against the acquittal of the three accused.
After going through the evidence, the Court observed that there appears to be a prima facie justification for the re-appraisal of the evidence in accordance with the principles of safe administration of justice. Leave was, therefore , granted in Cr. P. S. L. A. No. 30/78 filed by the appellant. Cr. P. S. L. A. No. 18/1978 was, however, dismissed as barred by limitation.
3. We have heard the learned counsel for the petitioner and the learned State counsel at length and have gone through the impugned judgment as well as the relevant portions of the evidence on the paper-book with their assistance.
4. The incident took place at about 10-30 a.m. On 1-3-1975 in the area of village Ghana, P. S. Saman, District Rahim Yar Khan. According to the F. I. R. The facts of the prosecution case are briefly that Manzur Hussain, accompanied by his mother Mst. Ghulam Fatima and his sister Mst. Jindan were proceeding to the Basti of Bashir Ahmad, Zamindar on a Kachha Road to purchase a goat. When they reached Killa No. 3 Square No. 26/12 belonging to one Din Muhammad, all the accused suddenly came out frombehind a wall. Pir Bakhsh was armed with a revolver, Ashraf (acquittedaccused) was armed with a pistol while the remaining accused were empty handed.
Khawand Bakhsh and Allah Bakhsh pounced upon Manzur Hussain deceased, and got hold of him in a Jappha. Muhammad Ashraf thereafter fired at Manzur Hussain with his pistol but missed. On thisMst. Azmat, the mother of Pir Bakhsh, shouted that Manzur Hussain should not be spared.
Thereupon Pir Bakhsh fired at Manzur Hussain hitting him on the left side of the neck and the bullet passed through and through causing wound of exit at the right side of the deceased's neck. Manzur Hussain fell down and died at the spot.
5. The motive for the offence is stated to be that about 2J years prior to the occurrence Pir Bakhsh, appellant, Khawand Bakhsh (acquitted accused) and Ahmad Bakhsh (acquitted accused) had attacked and injured Mst. Ghulam Fatima, P. W. Mother of Manzur Hussain, deceased and a case under section 307, P. P. C. Was registered against Pir Baksh etc. In respect of that occurrence.
Manzur Hussain, decrased, had resented this attack on his mother and in order to take revenge, he caused injuries to Pir Bakhsh and his mother Mst. Azmat. A parallel criminal case under section 326, P. P. C. Was registered against Manzur Hussain in that connection. As such hostility evidently existed between the parties. Ashraf (acquitted co-accused) is said to have supported Pir Bakhsh and his relations because, as alleged by the prosecution, be had illicit relations with Mst. Azmat the mother of Pir Bakhsh, appellant, and also used to live with them.
6. Mst. Ghulam Fatima proceeded to the police station to lodge the F. I. R., but met M. Sharif, S. 1. In the way and narrated the above-mentioned story to him. The F. I. R. Was lodged subsequently on the basis of that statement. Investigation was conducted by M. Sharif, A. S. I., who collected some blood-stained earth from the spot and sent the deceased for post-mortem examination which was conducted by Dr. Abdul Wahab, P. W.
1. He found the following two injuries on the person of the deceased
(1) An oval wound of entry 1/3' x 1/4' x 7' on the left side of the neck below and behind the left ear.
(2) A lacerated wound of exit 1/2' x 1/2" on the inner side of right ear (mastoid) lacerating the right ear.
He arrested Pir Bakhsh, appellant on 6-3-75, who led to the recovery of revolver P. 8 containing one empty and 3 live bullets which were taken into possession. About a month later Muhammad.
Ashraf, who had obtained interim bail before arrest from the High Court, appeared -before the Police and produced revolver Exh. P-9 along with its licence.
7. At the trial the prosecution relied on the testimony 4 the three eye-witnesses.; the evidence of recovery of fire-arms from Pir Bakbsh and Ashraf ;the evidence with regard to the motive and the medical evidence.
8. When examined at the trial, the accused denied their guilt and they (except Ashraf) put forward the same motive as alleged by the prosecution, mentioned in paragraph 5 above, as the reason for their having been involved falsely by the complainant party, and stated that the eye-witnesses have deposed against them due to the said enmity between the parties. Asshraf, co-accused, pleaded alibi and also produced evidence in support thereof.
9. The High Court, after giving weighty reasons in paragraph 11 of the impugned judgment came to the conclusion that the F. I. R. In the case has been recorded after preliminary investigations at the spot, and held (in paragraph 13) that as far as the F. I. R. Is concerned, the complainant party had got ample time to deliberate and entangle their opponents in this case. It, therefore, observed further that the possibility of having roped-in some of their opponents without their actual participation in the crime could not be ruled out. It also observed (in paragraph No. 12) that all. The eye-witnesses being closely related to the deceased and there being previous enmity between the parties, the evidence of the eye-witnesses has to be taken with great caution.
10. The learned Court held that the shot had been fired at the deceased from more than 4 feet. It was, therefore, observed that if at that time anybody was holding the deceased in Jbappha as alleged by the prosecution witnesses, there would have been a great risk of his being hit by the shot. The Court, therefore, felt that if his maternal uncles Khawand Bakhsh and Ahmad Bekhsh, acquitted accused, were in fact holding Manzur Husain, deceased, in a Jhappha, then Pir Bakhsh, appellant, would not have taken the risk of firing at Manzur Husain because there was a greater possibility that the shot would have hit one of them rather than Manzur Husain the intended victim.
It is for this reason that the learned 'High Court acquitted the above-mentioned two co-accused. In other words the High Court held the prosecution story to be false to that extent.
11. The -learned Court then considered the plea of alibi taken by Ashraf, co-accused, including the testimony of the D. Ws. Produced by him in support thereof and reached the conclusion. That Muhammad Ashraf, had no tangible motive for becoming a party to the murder of Manzur Hussain and held that the plea of alibi taken by him was not without substance. Ashraf was, therefore, acquitted. In other words, the prosecution story with regard to the presence of Muhammad Ashraf, co-accused at the spot and his having participated in the crime by firing a shot at Manzur Hussain, deceased, was held to be totally false.
12. The learned Bench lastly took up the case of Pir Bakhsh, appellant and held that although the recovery of pistol P-8 at his instance did not advance the prosecution case in the absence of a report of a Ballistic Expert, the ocular testimony was sufficiently corroborated by the medical evidence and of motive. The evidence of the eye-witnesses was, therefore, believed, as against him and his conviction was upheld.
13. The learned counsel for the appellant argued vehemently that as far as the evidence of motive is concerned, it does not constitute corroboratory evidence in support of the ocular testimony against the appellant firstly, because the said motive has not only been admitted by the accused but has been actually put forward by them as the reason.Due to which the complainant party involved them in the case falsely. He urged secondly, that even if the alleged motive is taken to be a piece of corroborative evidence then Khawand Bakhsh. Ahmad Bakhsh and Mst. Azmat (who had also been involved in the earlier incident) had the same motive and, therefore, there was nothing to pick and choosa etween them and Pir Bakhsh on that basis.
14. We are inclined to agree with this contention specially in view of the fact that admittedly there was hostility between the parties and the .9 prosecution witnesses have been demonstrated to have falsely involved the four co-accused. We feel that the learned High Court has rightly disbelieved the testimony of the eye-witnesses with respect to three of the accused. Considering the amount of falsehood they (i. e. The eye-witnesses) have introduced into the case, it would be extremely unsafe to apply the principle of the sifting the grain from the chaff in this case, and since this is case where the version given by the eye-witness has been proved to be false with regard to the majority of the accused, we are of the view that their testimony should be disregarded m its entirety. The result is that even the existence of an independent circumstance would not be able to cure this defect because nothing can corroborate false testimony.
In any case the two pieces of evidence relied upon by the High Court d not furnish corroboration in this case. We have already dealt with the evidence with regard to motive in paragraph 13 above. As for the medical evidence, it is noteworthy that in the F. I. R. Mst. Ghulam Fatima had simple mentioned that Pir Bakhsh had fired a shot at her son Manzur Husain, deceased, which hit him on the left side of the neck and the bullet pierced through making a wound of exit on the other side.
She made a glaring improvement in this regard at the trial and stated in her examination-in-chief that Pir Bakhsh (appellant) had fired at her son by placing his revolver on his neck. Evidently it was realized by the prosecution that the assertion that the shot had been fired from a distance was likely to be looked at with suspicion in view of the fact that it might have hit and killed one of the uncles of Pir Bakhsh who were holding the deceased in a Jhappha. Had the distance been made shorter by reducing it to one foot or six inches, then, in the absence of scorching or blackening of the skin around the wound on entry in the neck. Their statements would have been contradicted by the medical evidence. To overcome this difficulty the only alternative left was to say that Pir Bakhsb bad placed the muzzle of the revolver right on the neck of Manzur Husain and then fired.
Secondly, in view of the version that two of the co-accused had caught hold of the deceased in Jhappha and two persons including the appellant Pir Bakhsh had fired at him with revolver or pistol it is surprising that nothing else but the injuries caused by a single shot were found on the body of the deceased and there was not even a scratch on his person beside the afore-mentioned injuries.
As such the post-mortem report actually contradicts the prosecution story rather than supports it.
As a result of the above discussion, we feel that the conviction of the appellant cannot be sustained on the evidence on record. We, therefore, accept the appeal, acquit Pir Bakhsh, appellant, and set aside his conviction and sentence, and he should be set at liberty forthwith unless he is wanted in any ocher case.