1. MOHAMMED AZAM KHAN, CJ. --- The District Criminal Court Mirpur vide its judgment dated 4.2.2005 convicted and sentenced the appellant Qadir Bakhsh to 20 years' rigorous imprisonment each, for the murder of Nasir Mehmood, Munawar and Sajida Bibi under Section 302(c), APC. All the sentences were ordered to run concurrently. Abdul Ghafoor, accused, was acquitted of the charge.
2. The Shariat Court accepted the appeal filed by Qadir Bakhsh while the appeals filed by the legal heirs of deceased Nasir Mehmood were dismissed. The Shariat Court vide its judgment dated 4.7.2011 while partially accepting the appeal of Qadir Bakhsh modified the judgment of the Trial Court and sentenced him to 14 years' rigorous imprisonment under Section 302(c), APC. He was also extended the benefit of Section 382-B, Cr.P.C. Two appeals; one by the complainant Shaukat and his mother and the other by the convict-appellant have been filed against the impugned judgment of the Shariat Court.
3. 2.A case under Sections 302/34, APC, was registered at Police Station Mangla on 25.11.2004 at 3:25 a.m. on a written report made by Shaukat Ali, complainant, one of the appellants, herein. The written application was presented to the SHO Police Station Mangla, who reached the place of occurrence, Dhok Mian, situate in village Nakki. The complainant stated in the application that he is the resident of Nakki. His brother Nasir Mehmood had a friendship with Munawar s/o Sadiq r/o Pher Sahb Chak. Last night i,e. on 24.11.2004 at about 10:00 pm, Munawar came at the house of his brother, Nasir Mehmood. He told that-Abdul Ghafoor s/o Mian Muhammad caste Arian r/o Dhok Mian situate in village Nakki, who is their common friend, has invited them at his house. Both of them went to the house of Abdul Ghafoor. They didn't come back till late night. Muhammad Sultan s/o Muhammad Alam caste Jat r/o Pher Sahb Chak came at his house in a worried condition and told that Munawar had told him that he alongwith Nasir had been invited by Abdul Ghafoor and he will go there alongwith Nasir. He has not returned back yet. Upon this, he alongwith Shahid s/o Muhammad Aslam, his brother Faisal and Muhammad Sultan s/o Muhammad Alam proceeded towards the house of Abdul Ghafoor. He and Muhammad Sultan had electric emergency torches with them. At about 1:30 a.m. when they reached near the house of Abdul Ghafoor, they heard the loud voices in the courtyard of Abdul Ghafoor and saw some persons running in the open fields.
4. One person was firing at them. He identified the person, who was firing, as Qadir Bakhsh by his voice and stature in the moonlight and torch light. The other person, raising lalkara, was Abdul Ghafoor, who was instigating Qadir Bakhsh that no one should be spared. While running away Qadir Bakhsh threatened that if anybody tried to chase him, he will kill him. When they reached at the firing place in the fields, they saw dead-bodies of Nasir Mehmood and Munawar and near to them the dead-body of Sajida w/o Abdul Ghafoor caste Arian was lying.. The motive behind the occurrence is that Qadir Bakhsh was suspecting illicit relations of Nasir Mehmood and Munawar with Sajida w/o Abdul Ghafoor. By mutual consultation with Qadir Bakhsh, Abdul Ghafoor invited Nasir Mehmood and Munawar at his home and they have murdered them. The inhabitants of locality also awakened on hearing the firing. After receiving the application, the SHO forwarded the same alongwith letter to the Police Station for registration of case. The SHO in the marasla stated that today on 25.11.2004 at 2:00 a.m., he received the information through reliable sources that Nasir Mehmood s/o Raja Afzal r/o Nakki, Munawar s/o Sadiq caste Jat r/o Pher Sahb Chak and Mst.
5. Sajida Bibi w/o Abdul Ghafoor have been murdered by Qadir Bakhsh in Dhoke Mian situate in village Nakki. He reached on the spot. The information was found correct. Shaukat s/o Muhammad Afzal presented the aforesaid application, which was read over to him. He admitted the contents of application to be correct and signed the same. The dead-bodies were lying in the open fields. He examined the dead-bodies and entered the injuries in the marasla. On this application a case under Sections 302/34, APC, was registered at Police Station Mangla.
6. 3.After necessary investigation, challan was submitted in the District Court of Criminal Jurisdiction, Mirpur. The Trial Court vide judgment dated 4.2.2005 convicted and sentenced Qadir Bakhsh for the murder of Nasir Mehmood, Munawar and Mst. Sajida in the terms mentioned hereinabove. Appeals filed by the convict Qair Bakhsh and legal heirs of deceased Nasir Mehmood were decided by the Shariat Court vide impugned judgment dated 4.7.2011, hence these appeals under Section 25; IPL.
7. 4.Ch. Muhammad Reaz Alam, advocate, counsel for the convict-appellant Qadir Bakhsh and acquitted accused-respondent, Abdul Ghafoor, argued that the judgment of the Shariat Court is against the law and facts, as such not maintainable. The prosecution cited four eyewitnesses; Shaukat, Faisal Mehmood, Shahid and Muhammad Sultan. The most important witness was Muhammad Sultan who was not produced in the Court by the prosecution. Only Shaukat, Faisal Mehmood and Shahid were produced as witnesses in the Court. The complainant and Faisal Mehmood are real brothers while Shahid is their first cousin. Only interested and related witnesses have been produced. It has come on the record that there were independent witnesses present at the place of occurrence but they were not cited as witnesses or produced in the Court. It is settled law that when independent witnesses are present but they are not produced, and only related witnesses are produced, testimony of such witnesses is not reliable. The learned counsel submitted that other important witnesses, Muhammad Suleman and Bashir, who were independent witnne,,ses, have also not been produced. The constable Saeed-ul-Hassan, who took marasla from the place of occurrence to the police station, was also an important witness for proving the time entered in the FIR, was also not cited as a witness in the calendar of witnesses, thus, it is proved that in fact the F.I.R. was recorded at a later stage after deliberations. The case of the prosecution is full of doubts. The presence of witnesses at the place of occurrence in the late hours of the night is not plausible. The prosecution has alleged that the witnesses identified the accused in the moonlight and the light of electric torches. The torches were not recovered, which is a proof that the story of identification of accused in the torch light is fabricated and doubtful. Furthermore on the fateful night, it was 11th of Shawal and on 11th of Shawal at 1:30 a.m. the moon had already set and it is not possible to identify a person in the light of torch form a distance of 300 feet. The learned counsel attacked the prosecution story on the ground that it has come on the record that the deceased Nasir and Munawar had mobile telephones with them. These were recovered from the dead-bodies but were not taken into the custody by the Police and no recovery memo. was prepared. The learned counsel further argued that according to the complainant, Muhammad Sultan came to his house at Nakki and told that Munawar and Nasir had gone to Dhoke Mian, who have not returned yet. He argued that Muhammad Sultan is the resident of village Pher Sahb Chak.
8. Dhoke Mian falls in-between Pher Sahb Chak and Nakki. If Muhammad Sultan wanted to inquire about his nephew, Munawar Hussain from Abdul Ghafoor, why instead of going to Dhoke Mian, he first went to the house of the complainant. It is a fabricated story. The fabrication of story is proved from the fact that Muhammad Sultan was not produced as a witness in the Court. The story is not reliable. The learned counsel contended that according to the prosecution, Qadir Bakhsh fired only four shots and four crime-empties are shown to have been recovered from the place of occurrence but according to the post-mortem report there are more than one entry wounds on the dead-bodies of deceased which prove that more than four shots were fired. The _post- mortem report negates the version of the prosecution. The learned counsel further argued that the prosecution case is that Qadir Bakhsh fired upon the deceased from a long distance while the doctor has shown blackening on the wounds and categorically stated that the distance of some fires on all the dead-bodies is 1 to 3 feet, which negates the prosecution story because in the site- map, the distance between the deceased and Qadir Bakhsh is shown as 21 feet, 50 feet and 102 feet, which proves that the prosecution witnesses have not seen the occurrence. The learned counsel referred to the ballistic expert's report (Ex. DA) and argued that the crime-empties were not fired from the gun recovered from the accused Qadir Bakhsh, which proves that the prosecution story is fabricated. The learned counsel referred to the statement of Patwari, who stated that he cannot tell as to where the place of occurrence is exactly situated. The place of occurrence shown in the site-map cannot be identified. The learned counsel disputed the place of occurrence. He submitted that according to the prosecution, the dead-bodies were found in the fields but only the blood has been recovered. The bloodstained clay has not been recovered. He contended that all the recoveries are fake and fabricated. The learned counsel attacked the chemical examiner's report which only shows that there is the blood in the articles sent to the chemical examiner but it doesn't show that it is the human blood or not. The learned counsel submitted that the witnesses are interested and inter see related. There is no corroborative evidence; which could support the prosecution version. He contended that there was difference of opinion among the Judges comprising the bench in the Shariat Court. One of the learned Judges, Mr. Justice Syed Hussain Mazhar Kaleem acquitted the accused while the other two learned judges; the learned Chief Justice and Mr. Justice lftikhar Hussain Butt alterec the sentence of 20 years' to 14 years rigorous imprisonment. The opinion of Mr. Justice Syed Hussain Mazhar Kaleem is well- reasoned. The learned counsel referred to and relied upon the cases reported as Qadeer Hussain v.
9. The State [1995 PSC (Crl.) 108], Ghulam Rasool & another v. The State & another [2011 SCR 324], Muhammad Yaqoob v. The State & another [2007 SCR 332], Muhammad Javaid v. The State [1999 P.Cr.L.J. 328], Amanullah & 4 others v. The State [PLD 1978 Kar. 792] and Azad Jammu & Kashmir Government v. Sardar Shah [PLD 1960 AJ&K 1].
10. 5.While controverting the arguments of the counsel for the convict-appellant, Raja Inaamullah Khan, advocate, counsel for the complainant and the legal heirs of deceased Nasir Mehmood, argued that the prosecution has proved its case from cogent, reasonable and reliable evidence.
11. There are three eye-witnesses of the occurrence who were nominated in the FIR. They have witnessed the occurrence. Their evidence is confidence-inspiring. No enmity has been suggested to the witnesses towards the appellant, Qadir Bakhsh or his brother. Mere relationship is no ground for discarding the evidence of the prosecution witnesses. The parties are residents of the locality.
12. They know each other. Identity of accused is not in doubt. A young man of a family was murdered and how is it possible that instead of real culprits the members of the family shall substitute someone else? The learned counsel contended that three persons were murdered; one of them was Sajida w/o Abdul. Ghafoor. If the murder was not committed by the accused-respondents, then why Abdul Ghafoor has not filed the report of murder of his wife. He has even not filed a private complaint in the Court in respect of the murder of his wife. The occurrence is witnessed by three eye-witnesses, who fully corroborate the prosecution version. Non-production of one of the eye-witnesses doesn't affect the prosecution story. The prosecution is not bound to produce all the witnesses. It is sufficient that the prosecution has proved its case from the statements of other witnesses. The learned counsel argued that there is sufficient corroboratory evidence in support of direct evidence. The blood-stained clay was recovered from the place of occurrence. The crime- empties were also recovered from the place of occurrence. The medico-legal report fully corroborates the direct evidence. The learned counsel submitted that the witnesses are illiterate villagers. It cannot be expected from illiterate persons to tell the exact distance in feet and yards, therefore, the fact that the witnesses stated that the accused fired from a long distance and there is blackening on the wounds, will not affect the prosecution story. He referred to the statement of Faisal Mehmood, witness, who stated that Qadir Bakhsh was firing while running behind the deceased. The prosecution alleged the motive that Qadir Bakhsh was suspecting that Nasir and Munawar had illicit relations with his bhabi (wife of his brother Abdul Ghafoor) and he threatened Faisal Mehmood that Nasir and Munawar will not be spared. The statement of the witness, Faisal Mehmood, on this point was not challenged in the cross-examination. When a statement of a witness on a particular point is not challenged, it is deemed to be admitted true; as such the motive is proved. The learned counsel further clarified that the doctor, according to his own statement, is not an experienced one and if an expert witness states anything against the prosecution, it will not affect overall case of prosecution. The learned counsel referred to and relied upon the cases reported as Muhammad Tahir Aziz v. The State & another [2009 SCR 71], Abdul Latif v. Safarish All Khan [2002 SCR 288], Walayat Khan & 2 others v. Muhammad Yousaf & 15 others [PLD 1995 SC (AJ&K) 41], Abdul Rehman v. The State [1998 SCM R 1778], Zahid Hussain Shah v. Shah Nawaz Khan & 3 others [2000 SCR 123], Ghulam Nabi v. The State [PLD 1957 (W.P.) Lah. 109] and Muhammad Ajaib v. Mehboob Khan & another [PLJ 2000 SC(AJ&K) 192].
13. ' The learned counsel further submitted that all the eyewitnesses stated that they have identified the accused in the moonlight and the light of electric torches. The portion of the statements of witnesses with regard to identification was also not challenged in the cross-examination. Faisal Mehmood, witness, stated that he saw the moon which was exactly over and above their heads.
14. This portion of the statement of the witness was also not challenged in the cross-examination, which shall be deemed to be admitted as true. The learned counsel in this regard referred to and relied upon the cases reported as Syed Kabir Hussain Shah v. The State [PLD 1984 SC (AJ&K) 82] and Alim Dad alias Khan v. The State [2002 P.Cr.L.J. 1785]. The learned counsel prayed for acceptance of appeal filed by the legal heirs of the deceased and requested that both the accused respondents, Qadir Bakhsh and Abdul Ghafoor be convicted and sentenced to death as qisas for the murder of three persons.
15. 6.Raja Ghazanfar Ali Khan, the learned Advocate-General, adopted the arguments advanced by Raja Inaamullah Khan, advocate, and contended that three persons have been murdered in a brutal manner. The occurrence is admitted by the accused persons. The accused are nominated in the F.I.R. which was promptly lodged. The prosecution has produced the best evidence and proved its case beyond reasonable doubt. No enmity has been suggested to the witnesses towards the accused respondents. The motive is proved. He further argued that the dead-body of Sajida was recovered from the fields but her husband, who is accused, has never made any report for the murder of his wife. The place of occurrence is not disputed. There is sufficient corroboratory evidence on record in support of the prosecution version. He prayed for acceptance of appeal filed by the legal heirs of the deceased, Nasir Mehmood, and requested that the accused respondents be convicted and sentenced to death as qisas for the murder of three persons.
16. 7.We have heard the learned counsel for the parties, the learned Advocate-General and perused the record. Since both the appeals arise out of the same judgment of the Shariat Court, therefore, these are being disposed of by the single judgment.
8. The prosecution cited four eye-witnesses; Shaukat, Faisal Mehmood, Shahid and Muhammad Sultan in the FIR. Shaukat, Faisal Mehmood and Shahid were produced in the Court while Muhammad Sultan was left by the prosecution. The prosecution story starts with the version that at 10:00 p.m., Munawar came to the house of the complainant Shaukat and took deceased Nasir Mehmood with him on the pretext that Abdul Ghafoor, accused, who is their friend, has invited them at his house. At late hours in the night, Muhammad Sultan came to the house of complainant and told that Munawar and Nasir have gone to the house of Abdul Ghafoor on invitation. Munawar has not returned back, therefore, he has come to inquire. On this, Shaukat, Faisal Mehmood, Shahid and Muhammad Sultan went to the house of the accused at 1:30 a.m. They heard loud voices in the courtyard of Abdul Ghafoor and saw the persons running in the fields. Qadir Bakhsh was firing. He was identified in the moonlight and the light of torches and Abdul Ghafoor was instigating him. In the whole scenario, Muhammad Sultan is the most important witness, who according to the prosecution, came at the house of complainant, took the complainant alongwith two other witnesses at the place of occurrence and the whole incident was witnessed by them. It was necessary to prove that Muhammad Sultan came to the house of complainant, he took them to the place of occurrence, where they witnessed the occurrence particularly when Dhok Mian, the place of occurrence, is located in-between Pher Sahb Chak, where Muhammad Sultan resides and Nakki, where the complainant resides. In the natural course, Muhammad Sultan, instead of going to the house of complainant, should have proceeded to Dhok Mian if it was true that Munawar had told him that he is going to the house of Abdul Ghafoor alongwith Nasir on his invitation. It was only Muhammad Sultan who could prove this fact. Non-production of Muhammad Sultan as a witness is fatal for prosecution case. The version of prosecution and the complainant that Muhammad Sultan came at their place of residence appears to be unnatural and against the prudence. We agree with the argument of the learned counsel for the complainant that the prosecution is not bound to produce each and every witness but if the prosecution fails to produce such witness who is central figure and all the story revolves around him, then the prosecution story becomes doubtful. The very base of prosecution version is that Muhammad Sultan came to the house of complainant, it was necessary to produce him as a witness, particularly in the circumstances that real nephew of Muhammad Sultan was murdered. The only conclusion which can be drawn from non-production of Muhammad Sultan as a witness in the Court is that the version put forth by the prosecution that Muhammad Sultan came at the house of Shaukat, complainant, is not true.
9. The eye-witnesses produced by the prosecution; Shaukat and Faisal Mehmood, are real brothers of deceased Nasir Mehmood while Shahid is their real first cousin. The complainant alleged in the F.I.R. that on hearing the firing the inhabitants of the locality also awakened. The occurrence is stated to be of odd hours of night at 1:30 a.m. The place of occurrence is located at a considerable distance from the residence of the witnesses. They also stated that they identified the accused appellant and Abdul Ghafoor in the moonlight and the light of torches. The testimony of such witnesses, who came from a considerable distance, has to be scrutinized with great care and caution. It is a celebrated principle of the appreciation of evidence that mere relationship of witnesses inter se or to the deceased is not sufficient to discredit outrightly their testimony if otherwise such witnesses are found to be the witnesses of truth but if the independent and impartial witnesses are available and they are not produced and withheld and only the related witness whose testimony is not confidence-inspiring, are produced, the testimony of such witnesses cannot be relied upon without independent corroboration and the corroboration shall be of such a standard which tends to satisfy the Court that the witnesses have spoken the truth. It was observed in the case reported as Sikandar V. The State [PLD 1963 SC 17] as under:--- "Abdul Aziz and Sikandar are brothers, and Zaigham is a friend of theirs. The case was that on account of earlier enmity, on the evening of the 21st August. 1960, at about 9 p.m. these three persons assaulted the deceased Barkat, and while Abdul Aziz and Zaigham held him, Sikandar inflicted blows with a knife to the number of 5 injuring him very severely in the skull as well as the internal organs of the chest, so that he died on the way to the Thana. The scene of the attack was in a bazar in Lahore city close to Masti Gate. It was allegedly observed by three witnesses, who were Ranjha, P. W. 11, Muhammad Shafi, P.W. 12, and Muhammad Ramzan, P. W.
13. Ranjha is brother to the deceased father of Barkat, and is also his adopted father. Muhammad Shafi is also a gujjar like the deceased and said enough in his cross-examination to satisfy the High Court that he was at pains to deny a clear and fairly close relationship between him and the deceased. The third witness Muhammad Ramzan is seemingly an unconnected person. All the three witnesses came to the spot by mere chance. Ranjha's house is not far from the scene of the occurrence, but he explained that he and the deceased Barkat had been attending to their cattle outside Masti Gate shortly before and Barkat had left for their house first, while he himself followed a few minutes later. On the way, Barkat was attacked. Muhammad Shafi had brought in some milk from outside the city and had delivered it to some customers in Rang Mahal and Gumti Bazar and then leaving his cart near Baroodkhana, he was going to a certain place to procure wand when passing the spot he saw the attack. These two witnesses have been held to be unreliable by the High Court. Ranjha's very close relationship with the deceased, his coincidental appearance on the scene, and the fact that the medical evidence of the state of the deceased's stomach did not at all conform to his evidence as to the time of Barkat's last meal, were sufficient to satisfy the High Court that his presence on the spot was open to doubt. In the case of Muhammad Shafi his being a chance witness and his false denial of relationship were sufficient in the opinion of the learned Judges to render it "dangerous to place implicit reliance" on his evidence. In a case of this nature, where natural witnesses were not produced, and there is a background of enmity, the High Court's estimate of the value of these two witnesses appears to us to have been based on correct principle, and we accept it. The learned Judges however acted upon the solitary evidence of Muhammad Ramzan, in upholding the conviction of Sikandar though at the same time, they conceded that it was not sufficient for upholding the convictions of Abdul Aziz and Zaigham under Section 302, P.P.C. Muhammad Ramzan's evidence was that these persons held Barkat while Sikandar stabbed him to death.
17. ' Muhammad Ramzan, a city dweller, testifying to an incident occurring in the city which he happened to witness by chance, gave a novel explanation for his presence. It was that he was out trying to find a job for his younger brother and had gone to the house of one Muhammad Hussain, an employee of the Batala Engineering Co. in which he himself was employed, to ask if a job could be found for his brother. Allah Ditta. Muhammad Hussain was absent from his house, and Muhammad Ramzan admitted that he never again went to him for the same purpose, explaining that he found in the meantime that his brother was not qualified for the job in question. The usual explanation given by village witnesses of wajtakkar type is that they went out looking for a cow to buy, that they failed to meet the seller and that eventually they never bought that or any other cow.
18. In essential respects, Muhammad Ramzan's explanation is very similar. In addition the learned Judges found ample reason to doubt the accuracy of Muhammad Ramzan's evidence on a number of ancillary questions, such as the reason of his being acquainted with the three accused persons, and as to his own residence. For Muhammad Ramzan's name is mentioned in the F.I.R. which was lodged at the Thana some furlongs away at 9.30 p.m., and there his address was wrongly given. Ranjha who made the report said that he obtained the address from Muhammad Ramzan, and this circumstance provided the occasion for a certain amount of cross-examination whose result was-not favourable to belief in the veracity of Muhammad Ramzan."
19. 10.The version of the prosecution is that Qadir Bakhshi was suspecting that Nasir and Munawar, deceased, have illicit relations with his bhabi. He hatched a conspiracy in the result of which Abdul Ghafoor invited both of them at his house. It may be observed that the occurrence is stated to be of the intervening night of 24th and 25th November. In the month of November the sun sets at about 17:00 PST. It is against the prudence that a person who has already received threat from another person, shall go to his home after 10:00 p.m. In normal routine, the people in the villages go to the bed at about 19:00 PST in the month of November. The prosecution story doesn't appear plausible when seen in the light of statement of Faisal Mehmood, witness, who is the real brother of Nasir Mehmood, that a few days prior to the occurrence he was going to Mangla on a motor-bike when Qadir Bakhsh, who was riding a bicycle, stopped him and threatened to do away with the lives of Nasir Mehmood and Munawar on the pretext that both of them had illicit relations with his bhabi. The witness further stated that he had inquired from Nasir in this regard, who denied the same. In these circumstances, when Qadir Bakhsh had threatened to do away with the lives of Nasir Mehmood and Munawar, deceased, and Nasir was informed and aware of this fact, it is not probable that they shall go to the house of Abdul Ghafoor in the odd hours of night on his invitation.
20. Had there been no threat, then the story was worth consideration but after. the threat it is against the prudence that brother shall allow Nasir Mehmood to go to the house of Abdul Ghafoor in the odd hours. This part of the story negates the version of the prosecution that Munawar came to the house of Nasir and they both went to the house of Abdul Ghafoor on invitation at 22:00 PST. This aspect can be judged from another angle that according to the prosecution version both the deceased Nasir Mehmood and Munawar had cellular phones with them, which were recovered from the dead-bodies. Both of them were friends and could contact each other through cellular phones and if Munawar wanted to 20 to the house of Abdul Ghafoor with Nasir on invitation, he could have informed about the same to Nasir through phone. It is against the prudence that Munawar wants to go to the house of Abdul Ghafoor, which is situated near to his place of residence but he firstly goes to Nakki which is further away from Dhok Mian and then comes back to the house of Abdul Ghafoor. The prosecution failed to substantiate the fact of conspiracy. No evidence of conspiracy was brought on the record. The District Criminal Court and the Shariat Court concluded that there is no evidence on the record with regard to conspiracy, instead of acquitting the appellant, the Courts convicted him. Such conviction is bad in law.
21. 11.The presence of witnesses at the place of occurrence appears to be doubtful particularly, from the comparative study of their statements, the site-map and medico-legal report. The witnesses have stated that at 1:30 a.m. when they reached near the house of Abdul Ghafoor they heard loud voices in the courtyard of Abdul Ghafoor. Some persons were running in the fields and they identified Qadir Bakhsh from his stature and voice in the moonlight and the lights of torches.
22. According to the site-map when the witnesses reached at point No. 7, they heard loud voice and saw the personte running in the fields and a person was firing with lethal weapon. Point No. 7 is shown to be at a distance of 270 feet from the place from where the accused Qadir Bakhsh was alleged to have fired upon Nasir. It is alleged in the F.I.R. and the Court statement of witnesses that Qadir Bakhsh was firing while in a running position. The identification by stature and firing places of Qadir Bakhsh from a distance of 270 feet in the moonlight and the light of torches, is not possible.
23. Assuming for the sake of arguments that the witnesses reached at that place, how it was possible that at one side they state that there was noise in the courtyard of Abdul Ghafooi- and at the same time they saw the persons running in the fields. According to the prosecution, there were only five persons at the place of occurrence; i.e. Nasir, Munawar and Sajida, deceased, Qadir Bakhsh and Abdul Ghafoor. If there were persons running in the fields, then who was raising noise and loud voices in the courtyard? In the site-map it is shown that Qadir Bakhsh fired upon Munawar from point No. 9 which is at a distance of 250 feet towards north from point No. 1. He is also shown to have fired upon the deceased Munawar from point No. 10 which is at a distance of 380 feet towards north from point No. 1 and dead-body of deceased Munawar is shown to have been recovered from point No. 12, which is at a distance of 404 feet from point No. 1. The dead-body of deceased Sajida is shown to have been recovered from point No.15, which is at a distance of 110 feet from point No. 1. Muhammad Sultan, witness, is shown to be at point No. 16, which is at a distance of 408 feet from point No. 1 towards north. It is also stated by the witnesses that the dead-bodies were lying in the fields. There was standing wheat crop in the fields and the fields' were watered. The statements of witnesses, when seen in juxtaposition, do not g true because in the late hours of night it is not possible it identify the running persons from such a long distance in he moonlight and the light of torches. According to the prosecution witnesses, the accused was firing while running. taking aim in daylight while running a fire-shot may be possible but in moonlight it appears impossible to shoot the persons running in different directions. According to the prosecution, the accused has fired from four different points. t is against the prudence that four witnesses, three of them are the family members of one of the deceased and the ether is 'the family member of another deceased, were present at the night time and the accused kept on firing from different points and they kept mum. If there was water in the fields, it was not possible for the accused to. chase the deceased in different directions. The presence of eye-witnesses at the place of occurrence appears to be doubtful.
24. 12.We have also looked into the corroboratory evidence. The site-map and post-mortem reports are relevant. According to the site:-map and the statements of witnesses, the accused fired upon the deceased, Nasir Mehmood from a distance of 21 feet, upon the deceased Munawar from a distance of more than 20 feet and upon Sajida from a distance of more than 22 feet. According to the prosecution version the accused fired four shots. The dead bodies of the deceased were found at different places. In the post-mortem report of deceased Nasir Mehmood, the doctor as found more than one entry wounds. The doctor has described injury No. 7 caused by the fire-arm from a distance of 1 to 3 feet, while injuries Nos. 9 and 10 have :on caused from a distant range. The post-mortem report ad Munawar, deceased, shows more than one entry wounds. round No. 6 is shown to be caused from a nearer fire within come to three feet whereas the other injuries are shown to be used from a distant fire range. In the post-mortem report 3 deceased Sajida more than one entrance wounds are as the crime-empties were sent to the ballistic expert. The report of the expert was not produced in the evidence by the prosecution, however, the accused produced a photocopy of ballistic expert's report alongwith an application that the original report has been received in the , office d Superintendent of Police, Mirpur, which may be summoned. The report was summoned by the Court and was exhibited as Ex. DA. The report is negative as the crime-empties recovered from the place of occurrence do not match with the gun allegedly used by the accused in the offence. The argument of the counsel for the complainant that the accused connived with the forensic science laboratory and got the report and that it is a manoeuvred report and cannot be considered, is not worth consideration. The report shows that crime-empties marked as C1 and C4 have been fired from one fire-arm of 12-bore gun and crime-empties, C2 and C3 have been fired from two different fire-arms of 12-bore gun. Be that as it may, if the report is procured by underhand means, the fact remains that the report is negative and the expert has opined that the crime-empties were not fired from the alleged weapon of offence: it may be stated that in the cases of direct evidence, corroboratory evidence like report of the ballistic expert is not important, but in the case where presence of eye-witnesses at the place of occurrence is doubt!til. the ballistic expert's' report has a bearing on the case.
25. 13.As the prosecution has alleged that Qadir Bakhsh fired only four shots from the distant range but the post-mortem reports show that there were more than one entrance wound on the dead- bodies of deceased, some were from a shorter range. When the statements and post-mortem report are put in juxtaposition, the presence of witnesses at the place of occurrence becomes doubtful.
26. 14.Another corroboratory piece of evidence is the recovery of crime-empties from the place of occurrence and a .12 bore gun recovered from the accused. The gun as well complainant that the statement of doctor cannot be read against the prosecution. If any expert witness states something which goes against the prosecution, it will not affect the overall case of the prosecution.
27. It is not only the statement of doctor but the post-mortem report which has been proved by the doctor, negates the prosecution version that the accused fired from a distant range. The doctor found blackening around the wounds of all the three deceased persons and stated categorically that some shots were fired-from within a range of one to three feet. The argument is not worth consideration.
15. We have also considered the argument of the counsel for the complainant that illiterate persons cannot describe the distance accurately, therefore, contradictions in the site-map and the post-mortem report cannot be considered fatal for the prosecution. We have gone through the case-law referred to by the counsel for the complainant i,e. the case reported as Muhammad Ajaib v. Mehboob Khan & another [PLJ 2000 SC (AJ&K) 192]. It has been observed in the referred case that prosecution case cannot be thrown out on the basis of small and minor discrepancies, contradictions and improvements which are natural phenomenon. Where story of prosecution stands substantiated on material particulars, minor discrepancies, contradictions and improvements have to be ignored. The proposition of law is correctly resolved in the referred case that minor differences described by the illiterate witnesses cannot destroy the evidentiary value of direct evidence but in the present case when the very presence of witnesses at the place of occurrence appears to be doubtful, the distance of fire described by the witnesses accurately and each of the witnesses exactly tells the same distance which was told by the other witness in a parrot like narration makes the case doubtful. The version of prosecution witnesses is that shots were fired from more than 20 feet while medico-legal reports negate the version of witnesses and it is proved that some shots were fired from a distance of 2-3 feet, this cannot be termed a minor contradiction in the statements, site-map and the post-mortem reports. The medico-legal report and the site-map contradict the witnesses and cast serious doubts in the prosecution story.
28. 16.Another argument of the counsel for the accused-appellant that the dead-bodies were found in the fields and only blood was recovered and the blood-stained clay was not recovered, is misconceived. Although in the recovery memo. only the word 'blood' is used but the report of chemical examiner reveals. that the articles, which were sent to him, included blood-stained clay of Nasir Mehmood, Munawar and Sajida and furthermore the recovery witnesses stated that blood-stained clay was recovered from the place where the dead-bodies of the deceased persons were lying.
29. 17.The learned' counsel. for the complainant vehemently argued that Faisal Mehmood, witness, stated in his statement that Qadir Bakhsh had threatened that Nasir and Munawar had illicit relations with his bhabi, therefore, he will not spare them.. This portion and the other portions of the statement of witnesses that they identified the accused in the moonlight and in the light of torches, were not challenged by the defence in the Cross-examination, therefore, these are admitted to be true. We have considered the arguments and the case-law referred to on the .point. The cases reported as Syed Kabir Hussain Shah v. The State [PLD 1984 SC (AJ&K) 82] and Alim Dad alias Khan v. The State [2002 P.Cr.L.J. 1785] correctly lay down the proposition that- if a portion of the statement of a witness goes against the accused and he fails to challenge the same in the cross- examination, the statement to that extent shall be deemed to be admitted as correct but in the instant case the fact is otherwise. The defence categorically challenged the veracity of the prosecution witnesses and asked questions that in the moonlight and the light of torches, a person cannot be identified from such a far distance. The argument is misconceived and is repelled.
30. 18.It was argued by the counsel for the complainant that the statement of doctor cannot be read against the prosecution. If any expert witness states something which goes against the prosecution, it will not affect the overall case of the prosecution. It is not only the statement of doctor but the post-mortem report which has been proved by the doctor, negates the prosecution version that the accused fired from a distant range. The doctor found blackening around the wounds of all the three deceased persons and stated categorically that some shots were fired- from within a range of one to three feet. The argument is not worth consideration.
31. 19.The prosecution version is that the complainant and the other three witnesses reached at the place of occurrence at 1:30 a.m. They witnessed the whole occurrence. The Police reached at the place of occurrence at 2:15 a.m. and the complainant presented a written application to SHO, who sent a marasla to Police Station at 3:10 a.m. The SHO stated that he received the information from reliable sources at 2:00 a.m. that Qadir Bakhsh has murdered Nasir Mehmood, Munawar and Sajida w/o Abdul Ghafoor. He reached on the spot where the complainant Shaukat s/o Muhammad Afzal gave him a written application. The details of injuries of all the three deceased persons are entered in the marasla sent to the Police Station at 3:10 am, the whole proceedings of examining the dead- bodies and entering them in the marasla cannot be completed within such a short time. The presentation of application to SHO at 2:15 a.m. is falsified from the statement of witnesses Afzal, who is a close relative of the complainant and the deceased. He stated that his mother informed him at 4:00 a.m. that boys have been murdered by Qadir Bakhsh and others. He stated that Shaukat, complainant, has given an application to the SHO in his presence and he signed the same. If Afzal was informed by his mother at 4:00 a.m. and he went to the place of occurrence where Shaukat gave the application to SHO, being informed at 4:00 am, he must have reached at the place of occurrence after 4:00 am. If he reached at the place of occurrence at 4:00 a.m. then how Shaukat presented the application to SHO at 2:15 a.m. in his presence. When it is proved that the application was given to the SHO after 4:00 am, how F.I.R. can be registered at 3:25 a.m. This fact casts serious doubts in the prosecution story that the witnesses were present at the place of occurrence and they have witnessed the occurrence, therefore, the occurrence appears to be unseen.
20. The District Criminal Court observed that presence of witnesses is doubtful at the place of occurrence and witnesses are not reliable. The Shariat Court while disposing of the appeal disbelieved the prosecution witnesses to the extent of Abdul Ghafoor and-also observed that the prosecution failed to produce any evidence with regard to the conspiracy, pre-planning or preconcert. After the conclusion that the presence of witnesses at the place of occurrence is doubtful and there is no evidence with regard to conspiracy, the conviction recorded by the Trial Court as well as the Shariat Court is bad in law and not sustainable.
32. The result of the above discussion is that the prosecution failed to prove its case beyond reasonable doubt. The prosecution story is full of doubts. The conviction and sentence recorded by the District Criminal Court Mirpur and the Shariat Court is not sustainable. Appeal No, 33/11, titled Qadir Bakhsh v. The State & others is accepted while Appeal No, 36/11, titled Shaukat Ali & another v.
33. Qadir Bakhsh & others is dismissed.. The appellant Qadir Bakhsh is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case.