ASLAM RIAZ HUSSAINJ.-This appeal by Illahi Bux, Nabi Bux and Kevo is directed against the judgment of a Division Bench of the High Court dated 8-11-1979 whereby their appeal against their conviction was dismissed.
2. The petitioners along with one Soomar (acquitted accused) were tried for offences under sections 302, 452, 3666, 323 and 34, P. P. C. Illahi Bux, appellant, was also tried for an offence under section 13-D of the Arms Ordinance, while Soomar was also tried for a charge under section 382, P.
P. C. For having stolen the gun of Abdul Ghaffar during, the main incident. Soomar was acquitted of all the charges, including the charge under section 382, P. P. C. All of them were also acquitted of the charges under section 323/34, P. P. C. Only iIlahi Bux was convicted under section 302, for the murder and was sentenced to death and a fine of Rs. 2,000 and in default of payment of fine, to undergo another one year. The remaining accused were acquitted of that offence. Illahi Bux, Nabi and Kavo were convicted under section 452 and sentenced for the same to 2 years' R. I. Each and fine of Rs. 500 each and in default of payment of fine they were ordered to undergo another 6 months' R. I. They were also convicted under section 365, P. P. C. And sentenced to 3 years' R.,I, and a fine of Rs. 503 each and in default of payment of fine, to undergo another period of 6 months' R. I.
The three convicted accused appealed to the High Court which was dismissed vide the impugned judgment. They then filed a Petition for Special Leave to Appeal before this Court and Leave was granted for re-appraisal of the evidence.
3.F. I. R. In this case was lodged by Mirzo, P. W.
2. According to the F. I. R., at tapehri time (about 4 p.m.) on 24-4-1976, Mirzo was present in his house along with his wife Mst. Asiat, his mother-in-law Mst. Khanzadi and Mst. Lakhan, the wife of his maternal in counsel Abdul Ghafoor, when all of a sudden the three accused namely iIlahi Bux, Nabi Bux and Kevo, all sons of Allahyar came there.
Ilahi Bux was armed with a .12 bore S. B. Gun, while the remaining two accused were armed with hatchets. They shouted that they had come to take revenge of the earlier murder from them, and thereafter iIlahi Bux caught hold of Mst. Lakhan by hand and started dragging her ; Nabi Bax caught hold of Mst. Asiat by her arm;. While Kevo caught hold of Mst. Khanzadi with a view to take them away forcibly. The women and Mirzo raised hue and cry. Mst. Lakhan put up resistance, at which iIlahi Bux, who was carrying a gunshot at her, as a result of which she fell down and died on the spot. The other two accused, however, dragged away Mst. Asiat and Mst. Khanzadi and carried them away. On hearing the noise Ali Hasan and Amir Bux also came to the spot and witnessed the accused dragging the women. But they were threatened by the: accused and hence they did not attempt to rescue the women due to fear, After the accused left, Mirzo told them (Ali Hasan and Amir Bux) as to what had happened.
4. The motive for the offence is stated to be that 11 months prior to the incident Sabz Ali a cousin of Mirzo, had abducted Mst. Darya Khatun, the wife of the deceased brother of Ilahi Bux, appellant. The accused wanted to avenge that insult.
5. After the incident, Mirzo went to Nekmard Allan Khan Chandio and narrated the incident to him.
On his advice, he went to the Police Post, Mado and lodged the report which was recorded by Ghulam Rasul, Head Constable at 9.30 p.m. After recording the F. I. R., the Head Constable sent it to Police Station, Khairpur Nathan Shah and himself proceeded to the scene of occurrence, where he recovered some blood--stained earth from the spot where Mst. Lakhan lay dead. He also picked up an empty .12 bore cartridge and took it into possession. On the next day the investigation was taken over by Ghulam Rasul Jatoi, S. H. O. Of the aforesaid police station. He arrested Ilahi Bux, accused/appellant on 26-5-1976 and also recovered the two women from his custody. The Memo of Recovery was attested by Haji Razi and Jhandoo, P. Ws. The two women bore sours minor injuries on their persons for which he got them examined at the hospital. He arrested Nabi Bux and Kevo on 1-6-1976. During their custody with the police, they, led to the recovery of two hatchets. The S. H. O.
Then got the statements of Mst. Asiat and Mst. Khanzadi recorded before a Magistrate under section 164, Cr. P. C. He had procured the remand of Ilahi Bux and it is stated that on the last day of his remand i.e. On 6-6-1976 Ilahi Bux volunteered to produce his '12 bore S. B. Gun which was taken into possession by the S. H. O. Since he did not possess any license for the same, a case under section 13-D of the Arms Ordinance was also registered against him.
6. The gun and the empty cartridge found from the spot, were sent to the Ballistic Expert who found that They matched with each other. The hatchets recovered from Nabi Bux, appellant were not sent to the Chemical Examiner as they were not found to be stained with blood.
7. Post-mortem examination of Mst. Lakhan, deceased, was performed by Dr. Abdul Khaliq on 25-5- 1976. The doctor found as many as 57 small pellet injuries on her person extending over her face, neck, shoulder, chest and abdomen, right upto the iliac. Region. The doctor opined that her death occurred at about 4 p.m. As a result of the gunshot injuries. He also expressed the opinion that the injuries have resulted from more than one shot, and appear to have been caused from a distance of 6 feet. He, however, elaborated that if the assailants had fired the gun from a longer distance, then the injuries extending from the face to the lower part of the abdomen could have been caused only by a single shot. He also examined Mst. Khanzadi and found 5 injuries on her person of which one was a lacerated wound and remaining four were contusions. He also Examined Mm Asiat and found 5 contusion marks on her person.
8. Strangely enough on the 8th of the next month, Mirzo, P. W. Filed a private complaint against the accused under the same sections of the P. P. C. As in the F. I. R. The reason given by him was that the Police had incorrectly recorded the F. I. R., and had deliberately left out the name of one Soomar who was armed with a hatchet and had taken part in the incident along with the other accused mentioned in F. I. R. According to the facts as stated in the complaint, Soomar too bad caught hold of Mst. Lakhah along with iIlahi Bux, appellant, and Kevo who had earlier been stated to have been armed with hatchet was now alleged to have been armed with a lathi. The rest of the version is more or less the same except that it was added that before leaving the house, Soomar, accused, picked up and took away the gun and the bandolier belonging to Abdul Ghafoor, the husband of Mst. Lakhan, deceased (who was absent from the house at the relevant time). It is also noteworthy that in the private complaint, Mirzo, P. W. Abandoned Ali Hasan and Amir Bux as witnesses of the dragging and stated instead that on hearing the cries of the women, two altogether different persons namely Laung and Ghulam Muhammad had come to the spot and witnessed the later part of the occurrence.
9. After recording the preliminary evidence, the private complaint was also sent to the Court of Session, along with the Police case. Accused Soornar was, however, charged additionally under section 382, for having carried away the gun of Abdul Ghafoor.
10. At the trial, the prosecution relied on (a) the oral testimony of Mirzo, P. W. 2, MO. Khanzadi, P. W. 3, Mst. Asiat, P. W. 4, Ghulam Muhammad, P. W. 5, and Laung, P. W. 7, (b) the recovery of an empty .12 bore cartridge from the spot and a .12 bore S. B gun at the instance of Ilahi Bux which according to the Ballistic Expert, matched with each other, (c) the recovery of two hatchets from Nabi Bux and Kevo, (d) the statement of Allah Khan, Nekmard, to the effect that Mirzo, P. W. Had narrated the version to him before lodging the F. I. R., (e) the evidence of motive, and (f) the medical evidence.
11. The accused denied their guilt, pleaded innocence and stated that they had been involved due to enmity in the case. They produced no evidence in their defence. The learned Sessions Judge disbelieved the version given in the complaint, acquitted Soomar altogether, disbelieving all the eye-witnesses with respect to him. He also disbelieved the recovery of hatchets from Nabi Bux arid Kevo, appellants and convicted them only under sections 452, 365 and 34, P. P. C. The learned Sessions Judge found only IIlahi Bux guilty of murder of Mst. Lakhan, and convicted him under section 302. He sentenced the three appellants as mentioned in paragraph 2 above. The convicts went in appeal to the High Court. The High Court also disbelieved the version given in the belated private complaint and observed that the purpose of filing it seems "to be to get the whole initial prosecution story discredited and demolished rather than to secure the conviction of the guilty person who had been left out." This observation --of the High Court was based on the assumption or conjecture that two parties had reached a compromise and patched up their differences, and, consequently, wanted to save the accused. According to the High Court, the scheme devised by them was to introduce, in second version order to create doubt and suspicion as to the whole prosecution case. The learned Bench of the High court also felt, that in view of the authorities on the subject and the peculiar circumstances of this case, if the exercise of `sifting the grain from chaff' was to be carried out, then the safe dispensation of justice would require that corroboration of the testimony of the eye-witnesses should be sought in this case not only in view of the new version given by Mirzo in his private complaint and false introduction of Soomar (the acquitted accused) and the two new eye-witnesses, namely Laung and Ghulam Muhammad who had been disbelieved by both the Courts below but the also because the testimony of the remaining 3 eye- witnesses was not free of doubt. The High Court, however felt that the evidence of recoveries sought to be used by the prosecution as corroboration. Was not worthy of reliance because it was of the view that the learned trial Judge had rightly disbelieved the recovery of hatchets from Nabi Bux and Kevo, appellants. The High Court also disbelieved the recovery of the gun at the instance of Ilahi Bux, appellant. Having discarded the recoveries, the learned Judges of the High Court were left with only the evidence of motive and the medical evidence, namely the injuries on the persons of the two women witnesses, namely Mat. Asiat and Mst. Khanzadi as well as the injuries found on the person of Mst. Lakhan, deceased to fall back on for the corroboration of the testimony of Mirzo, Mst.
Asiat and Mst. Khanzadi, and treated it as such.
12. The learned counsel for the appellants argued before us that in the circumstances of this case where the first informant has introduced an alto--gether new version and the witnesses had contradicted each other and have been totally disbelieved regarding the participation of Soomar and the two eye--witnesses who were introduced subsequently in the private complaint have beer.
Disbelieved altogether, the testimony of the remaining eye-witnesses required to be supported by strong and absolutely independent corroboratory evidence. He submitted that the medical evidence in this case could hardly be taken as an independent corroboratory evidence because it could, at the most, show the presence of Mst. Asiat and Mst. Khanzadi at the spot, but neither supports the version as to the manner in which the gunshot injuries were caused to Mst. Lakhan, deceased, nor in any way helps to fix the identity of the assailants. He submitted that on this state of the evidence the conviction could not be sustained.
13. We have considered the above-noted contentions raised by the learned counsel and are inclined to agree with them and feel that the prosecution has miserably failed to prove its case against the appellants' beyond reasonable doubt. In the first place, after a period of about a fortnight of the lodging or the F. I. R., Mirzo, P. W., the first informant, disowned the story given in it on the ground that the Police had omitted certain material portions thereof and the F. I. R. Had not even been read out to him. In the private complaint. He has set up a new case introducing a new accused namely Soomar, assigned a part to him in dragging Mst. Lakhan, deceased, along with Ilahi Bux, appellant, and also introduced a new offence namely that Soomar took away the gun and cartridges belonging to Abdul Ghafoor, husband of the deceased which was lying in the house, although no mention of the gun having been thus taken away, is found in the F.
1. R. He (Mirzo) abandoned the two eye-witnesses, namely, Ali Hasan and Amir Bux, mentioned in the F. I. R., and in their stead, named altogether new witnesses, namely, Ghulam Muhammad, P. W. 5 and Laung, P. W.
7. He also ascribed a different weapon to Kevo, appellant-whereas in the F. I .R. Kevo was stated to be carrying a hatchet, in the private complaint, he was stated to be carrying a lathi. The eye- witnesses including Hst. Asiat supported this new version at the trial. But it is noteworthy that the two women in their statement before the police under section 161, Cr. P. C. And again in their statements before a Magistrate under section 164, Cr. P. C. Had supported the version mentioned in the F. I. R. And had neither mentioned the presence of Soomar nor the carrying away by him, or any one else, of the gun and bandolier of Abdul Ghafoor. The women also mentioning the names of Ali Hasan and Amir Bux as the persons who rushed to the spot on hearing their cries and saw the dragging. It could be urged on their behalf that the statement under section 161, Cr. P. C. May have been manipulated by the Investigat--ing Officer to conform with the F. I. R. But that argument would not be available in the case of their statement recorded by a Magistrate under section 164, Cr. P. C. As such the fact that at the trial they took sommersault and supported the new case set up by Mirzo in the private complaint goes to show that the women are liars who cannot be trusted or relied upon. The learned High Court was, therefore, correct in considering that the testimony of Mirzo, P. W. And the two women should not be believed without corroboration. As to the new two eye-witnesses added by Mirzo, namely, Ghulam Muhammad and Laung, P. Ws., they were rightly disbelieved by both the Courts below. As already mentioned, the recovery of the hatchets from Nabi Bux and Kevo as well as gun fro Ilahi Bux, appellant were disbelieved. Even the recovery of the two women, Mst Khanzadi and Mst. Asiat was not believed by the trial Court for the reason given by it in para. 23 of its judgment. In view of the cogent reasons given by the trial Court for disbelieving the two recovery witnesses namely Jhando and Razi, the High Court did not rely on the evidence of recovery of the women from Ilahi Bux. One of the Mashirs (recovery witnesses) i.e' Haji Razi did not support the recoveries and was declared hostile. The testimony of the other recovery witness Jhando, P. W. Is contradicted by Mirzo, P. W., the Investigating Officer as well as the two women themselves.
14. After discussing the evidence of recoveries including the alleged recovery of the two women from Ilahi Bux, appellant, the learned trial Court observed that : ---Considering the above contradictions in the evidence of these witnesses and the other circumstances, it appears to me that the prosecution has not come out with truth regarding the mode and the circumstances in which Mst. Khanzadi and Mst. Asiat were recovered. Even the recovery of hatchets and the gun from the possession of the accused does not appear free from doubt. As such I find that this circumstantial evidence against the accused fails."
15. According to Mirzo and the other witnesses on whom reliance has been placed by the High Court, Ilahi Bux was dragging Mst. Lakhan, deceased, by the arm but when she refused to go with him, he fired at her with the '12 bore S. B. Gun that he was carrying (in his other hand). If this story was correct then evidently the muzzle of the gun would have been very near the body of Mst.
Lakhan, and the pellets of shot fired by Ilahi Bux would have entered the body of the deceased en mass creating a big gaping hole and even the wad and cardboard of the cartridge would have entered the body of Mst. Lakhan. But as disclosed by the post--mortem report, there were as many as 57 small pellet marks on her person extending all over her body from the face up to the lower portion of her abdomen. According to the doctor himself, this was the result of more than one shot and also that these shots would have been fired at from distance of at least 6 feet. In other words, according to the doctor distance between the muzzle of the gun and the body of the deceased was about 6 feet. The doctor also opined that if these injuries were the result of only one shot (as stated by the eye-witnesses) then the distance from where the shot was fired must have been still greater. That stands to reason, because the spread of the pellets clearly shows that the shot had been fired from considerable distance, not less than 12 feet. This completely falsified Mirzo as well as the two women witnesses. No doubt, the injuries on the persons of the two women witnesses would ordinarily tend to suggest that they were themselves present at the spot but strangely enough the persons accused of causing them those injuries (in Kevo and Nabi Bakhsh) have been acquitted of the charge under section 323/34, P. P. C. Moreover, it is evident that they have not given the correct version in their statements at the trial. From a reading of their statements it clearly manifests that initially they tried to conform with the story as given in the F. I. R. By Mirzo, P.
W., who bad probably not seen the occurrence himself and gave a version of his own. Later, in their statements at the trial, they have attempted to conform to the story as given by Mirzo in his private complaint. No doubt it is indeed possible and even probable that the real culprit was amongst the assailants named by the eye-witnesses but if the prosecution chooses to put up a false version before the Court, and the witnesses, too, go out of their way to support it and deliberately make palpably false statements, it would only result in the acquittal of the accused. For this, the prosecution and witnesses have only to thank themselves.
16. No doubt it is open to the Court to sift grain from the chaff. But before relying only on certain portions of the statements of the prosecution witnesses who have deliberately perjured themselves with regard to another portion of the prosecution story, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate the portion of their statements on which it wishes to rely. But we feel that in the present case, the conduct of the prosecution in effecting false recoveries is so grossly dishonest as to cast a grave doubt on the entire case and reflect adversely on the veracity of the prosecution version and in a case like the present one, where the witnesses have not only contradicted themselves but have been anxious to make absolutely false statements which according to the High Court itself were motivated, no amount of corroboratory evidence can rectify the defect and it would be extremely dangerous to depend upon such testimony for maintaining the conviction of the accused. In these circumstances, mono~ alone, even if believed, is not such a piece of corroboration as would bet sufficient to make it safe to rely on the testimony of the eye-witnesses.
For the foregoing reasons we allow this appeal and set aside the convic--tion and sentence of the appellants. They have already been ordered to be set at liberty, if not required in any other case.