ZAFFAR HUSSAIN MIRZA, J.-Leave was granted in this case to consider the contention of the learned counsel for the appellant that Ghulam Nabi (P. W.) was an interested witness like the other alleged eye-witnesses and his testimony cannot, therefore, be sought in aid so as to lend assurance to the word of the interested and hostile witnesses, once the circumstantial evidence is excluded from consideration as unworthy of credence as held by High Court.
2. The occurrence in this case leading to the murder of one Sher Muhammad took place in the Main Bazar of Kandkhot at about 6.30 p. m. On 31-1-1978. The prosecution case is that on that day complainant Muhammad Nawaz accompanied by Adio, Andal and deceased Sher Muhammad came to Kandkhot from their village in connection with some private work. While returning to their village at about 6.30 p. m., when they reached near Rex Cinema they saw three persons emerging from a street and identified them to be Abdul Razak, Wahid Bux and appellant Ghulam Nabi.
' Appellant who was a police constable at the relevant time is said to have been armed with a service rifle and the rest of the culprits also with private rifles. Ghulam Nabi and the co-accused then fired at the complainant and his companions who were unarmed. Out of fear the deceased and his companions started running in order to take shelter from the firing. Two other unconnected persons, namely, Arz Muhammad and Jaro also received injuries from the shots fired by the culprits. The accused chased Sher Muhammad deceased firing at him. It is said that the second shot fired by the appellant hit the deceased who fell inside the rice mill of Laloo Mal Hindu. The assailants then decamped from the scene of occurrence. Ghulam Nabi (P. W.) is said to be passing from the scene of occurrence and to have witnessed the firing by the accused. The witnesses then went towards the deceased who was lying critically injured and carried him to the police station but he succumbed to his injury on the way. The motive for the murder is said to be old enmity between the parties.
3. The appellant alongwith co-accused Abdul Razak and Wahid Bux was tried by the learned Additional Sessions Judge, Kandkhot. On examination by the trial Court under section 342, Cr. P. C.
The appellant denied having produced the Government rifle and 8 live bullets before the police. He stated that the rifle was not issued to him at all. As to the main allegation he pleaded enmity between his party and the complainant party and proclaimed his innocence. No evidence was, however, produced in defence. At the trial the prosecution relied upon ocular testimony of complainant Muhammad Nawaz and witnesses Adio and Andal who had accompanied the deceased to Kandkhot. Ghulam Nabi (P. W.), who came to the place of incident at the time of occurrence, and saw the happening. Arz Muhammad (P. W.) who had been injured by a stray shot at the time of the occurrence, however, did not materially help the prosecution in so far as he stated not to have seen the appellant firing because on receiving injuries he had lost consciousness. The other injured, Jaro was not produced by the prosecution. Additionally the prosecution also relied on the crime weapon secured from the appellant, medical evidence as well as the evidence of motive. The medical evidence revealed that the deceased had received one punctured wound 1/3" in diameter, chest cavity deep on the right side of chest at the level of 9th rib in posterior axillary line. The edges of the wound were inverted, and charring was present. This was the wound of entry and the wound of exit was found to be 1"x chest cavity -deep on the left side of chest in mid axillary line at the level of 8th and 9th rib. No charring was present around this wound.
The injury had caused extensive internal damage fracturing ribs, puncturing pleaurae and lungs on both sides as well as blood vessels. The stomach of the deceased was empty but large and small intestines contained faecal matter. The two injured Arz Muhammad and Jaro were also examined by the R. M. 0 Shikarpur who found seven injuries on the person of the latter. Injured Jaro was not produced in evidence but Arz Muhammad was examined as a witness but, as already observed, his evidence was of no material value for the prosecution. It is, however, important to mention that in the opinion of the doctor the injuries on the persons of these two injured were caused by the discharge from a gun. In addition Ghulam Ali Jagirani was also examined as an eye-witness who is said to be coming from the opposite direction at the time of the occurrence and to have witnessed the appellant shooting at the deceased. The prosecution also relied on certain confirmatory circumstances. These were the recovery of an empty bullet shell of 303 bore from the scene and a blood-stained mat which was secured According to Riasat Ali S. H. 0, from "near the rice mill of Laloo Mal". The S. H.
0. Went to the village of appellant and arrested him on the same day. The appellant produced his service rifle of 303 bore and 8 live bullets. The empty shell matched with the rifle secured from the appellant according to the ballistic expert's opinion.
4. The trial Court on assessing the evidence in the case came to the conclusion that the complainant, Adio and Andal (P. Ws.) being related to the deceased and inimical to the accused, were interested witnesses and their evidence, therefore, required independent corroboration, which was provided by the confirmatory circumstances mentioned above. He also treated Ghulam All (P.
W.) as an interested witness. He further held that the accused had strong motive to commit the murder of the deceased as there was previous enmity between the parties. However, the learne4 Judge in the trial Court found the ocular testimony as regards the two injured, namely Arz Muhammad and Jaro (P. Ws.) to be in conflict with the medical evidence and came to the conclusion that the possibility of their false implication cannot be ruled out. By his judgment dated 17-12-1979 the learned Additional Sessions Judge, Kandkhot, therefore, acquitted co-accused Abdul Razak and Wahid Bux giving them benefit of doubt and convicted the appellant herein alone for the murder of deceased Sher Muhammad. The learned Judges of the High Court agreed with the view taken by the learned trial Court that Muhammad Nawaz, Adio and Andal were interested witnesses. In this behalf they referred to an earlier murder of one Thangao relative of the appellant for which deceased She Muhammad was being suspected although three other persons were facing trial for that murder who were distant cousins of Muhammad Nawaz, Adio and Andal. In fact the witnesses themselves admitted that there was long-standing enmity between the parties as there had been murders and counter-cases between Bangwars and Issanis. However, in the opinion of the learned Judges no enmity had been alleged or proved as against Ghulam Ali (P. W.) except that he has been shown to be connected with Sardar Sunder Khan, to whom Muhammad Nawaz, Adio and Andal also owed allegiance as a Sardar. The learned Judges observed that this was not sufficient to discredit Ghulam All (P. W.) as an unreliable witness as he was not shown to bear any grudge against the appellant. The three eye-witnesses were also considered to be truthful witnesses. On this view of the evidence the learned Judges came to the conclusion that the evidence of the three eye-witnesses was sufficiently corroborated by the ocular testimony furnished by Ghulam Ali (P. W). The learned Judges, however, did not place reliance on the evidence of recovery of rifle secured from the appellant and the empty bullet shell as well as the bullet secured from the dead body.
5. We have been taken through the evidence on record by the learned counsel for the appellant. As to the ocular testimony there being no dispute that there was a background of strong animosity between the parties the trial Court was right in taking the view that Muhammad Nawaz complainant, Adio and Andal being close relations of the deceased were interested witnesses and their testimony would require independent corroboration. The only other alleged eye-witness on whom reliance has been placed by the learned Judges of the High Court, namely, Ghulam Ali (P.
W.) in or opinion, whose evidence we have examined carefully is not a reliable witness. Learned counsel for the appellant emphatically urged that even the prosecution account furnished by the first mentioned three alleged eye-witnesses being in conflict with the medical evidence and being inconsistent with it, clearly indicates that these witnesses were not present at the time of the occurrence. There is considerable force in this submission. According to these witnesses all the assailants including the appellant were armed with rifles and the two injured namely, Arz Muhammad and Jaro were wounded as a result of the shots fired by the assailants. In this respect the version of Adio, Andal and Ghulam Ali (P. Ws.) is that these two injured received injuries as a result of shots fired by the co-accused of the appellant, whereas Muhammad Nawaz (P. W.) implicated all the accused in regard to these injuries. Be that as it may, the version-of these witness s is falsified by the medical evidence according to which the injuries sustained by the two injured were the result of shots fired with a gun. It was not difficult for the witnesses to distinguish between the gun and rifle and their assertion is positive that all the three assailants were carrying rifles. There is also another circumstance which raises doubt as to the prosecution version that these two injured sustained injuries in the manner described by the witnesses. It appears from the F. I. R. That the names of these witnesses and their parentage were disclosed by Muhammad Nawaz complainant to the police at the time of recording the F. I. R. He, however, stated in his evidence that Arz Muhammad and Jaro were not previously known to him and his companions, as well as that the injured did not go to the police station with them. He further stated that he did not remember whether they had come to the police station in their presence. He admitted that he did not mention their names and parentage to the police, although he voluntarily stated that their names were disclosed by their relatives who had come to the police station but whose names he could not mention. Adio (P. W.) on the other hand stated that he had named these two persons in his statement to the police but not their parentage and also admits that he did not speak to them.
Similar is the statement of Andal (P. W). On the other hand it is clear from the evidence of Riasat Ali, S H.
0. That the dead body was brought to the police station and he registered the F.
1. R. At 7.15 a. m. He also prepared the Mashirnama of the injuries of Arz Muhammad and Jaro (P.
Ws.) at the police station and then went to the scene of occurrence. It was after returning from scene of occurrence that he recorded statement of Andal, Adio and Ghulam Ali (P. Ws). He contradicted the complainant by stating that the names of the injured were written in the F. I. R.
Alongwith their parentage at the instance of the complainant. He also contradicted Adio (P. W.) by asserting that the parentage of the injured was disclosed by this witness in his statement, in view of these contradictions it is surprising how the names and the parentage of the injured transpired in the F. I. R. Which was supposed to be the first document immediately recorded by the S. H.
0. On the arrival of the complainant. It was forcefully contended by the learned counsel that these circumstances clearly indicate that the F. t. R. Was lodged after consultation and preliminary investigation which seriously reflects upon the honesty and disinterestedness of the investigation.
Jaro (P. W.) was not examined as already stated and the evidence of Arz Muhammad (P. W.) is of no help to the prosecution and does not corroborate the witnesses. He has denied having gone to the police station. The learned trial Court referring to the medical evidence showing that the injuries received by the two injured were the result of gun-shots, reached the conclusion that the ocular testimony in this respect was directly in conflict with the medical evidence and concluded that the possibility of their false implication cannot be ruled out. In or opinion the reaction of this circumstance on the evidence of the alleged eyewitnesses as a who e has not been taken into consideration by the learned Judges of the High Court. The suggestion of the defence to the investigating officer and the argument of the learned counsel for the appellant before us was that the S. H.
0. Brought the body of the deceased to the police station from the rice mill of Laloo Mal and then called his relatives to implicate the appellant and the co-accused for the offence which was not committed by them in the manner stated by the witnesses. In this connection it may be mentioned that the F. I. R. Was lodged after about 45 minutes of the occurrence. According to Adio (P. W.) after half an hour some of the Bangwars came at the scene of occurrence. He also admits that their Nekmard, namely, Ahmadan Bangwar has an Otaq in Kandkhot town. He states that the deceased was removed on a cot brought from the Otaq of Ahmadan by him, which was situated at a distance of one furlong. Similarly Andal (P. W.) has admitted that 6 or 7 persons came to the scene after the occurrence including Ghulam Ali (P. W.). In view of these circumstances it was not difficult to procure the complainant and the two eye-witnesses from their village which was only three miles away from the scene of occurrence and we are, therefore, unable to agree with the learned Judges of the High Court that the fact of their statements having been recorded by the S. H. O. On the same day establishes their presence at the scene of occurrence.
6. In addition to what has been stated above the most important feature of this case is the nature of injury sustained by the deceased. It was contended before us on behalf of the appellant that the medical evidence totally falsifies the version of the witnesses as to the manner in which the deceased received the injury. According to the description of the injury sustained by the deceased as given by Dr. Bheeman Das, Medical Officer, Kandkhot, who carried out the post-mortem examination of the dead body the bullet was found to have entered the body on the "right side of the chest at the level of 9th rib in posterior axillary line", and came out on the left side of the chest at about the same level. The version of the eye-witnesses discloses that the first, shot was fired by the appellant when the deceased was facing him but the same is said to have proved ineflective.
The deceased is then supposed to have started running backwards in the street towards the north.
At this stage when the deceased reached the corner of a street taking off towards the left from the main street known as Risaldar road at a distance of 149 feet from the place from where the first shot was tired, the appellant is said to have fired the effective shot which caused the injury in question. All things remaining the same the locale of the injury if the shot was fired at the deceased while he was running followed by the assailant would have entered his body from some place over his back and not on the side of the chest. If the shot was fired at the point when the deceased was taking the turn into the street to the left it would have entered his body on the left side and not from the right side as is the case. Considering these circumstances the presence of the entry wounds on the right side of the chest seems to us to be wholly incompatible with the version furnished by the witnesses and throws the veracity of their testimony into serious doubt. The learned Judges of the High Court, however, did not find this discrepancy material in the circumstances of the case and disposed of this argument in the following manner "The mere fact of the appellant having chased the deceased would not necessarily result in the bullet piercing the back side of the body, for it is almost natural that a person, while being chased, also keeps looking behind to see, whether he is still being pursued, and, in such circumstances, the wound of entry being located on the right side of chest does not render the prosecution story improbable."
' We regret or inability to agree with this reasoning, inasmuch as there is nothing in the evidence of the witnesses that the deceased was looking back in the course of his flight from his assailant.
There would, therefore, be no justification to dispose of this material circumstance arising from the evidence to the prejudice of the appellant on a mere surmise with no foundation in the evidence. It was for the prosecution to explain this apparent inconsistency between the oral testimony and the medical evidence. In any case the distance over which the deceased is supposed to have run upto the point where the effective shot hit him is less than 50 yards and it is highly unlikely for him to look back when he was already shot at and knew he is being chased. The benefit of this circumstance cannot, therefore, be withheld from the appellant. Considering all these circumstances the testimony of the three alleged eye-witnesses even intrinsically lacks the requisite value in a case of a capital charge.
7. As far as the evidence of Ghulam All (P. W.) is concerned, as already observed, he was treated as an interested witness by the trial court. However, the learned Judges of the High Court disagreed with the view taken by the trial Court and have held that he was a disinterested witness on the ground that no enmity was alleged or proved against him. As to his connection with Sardar Sunder Khan the learned Judges did not attach importance to this fact as Ghulam Ali had stated that he is only acquainted with Muhammad Nawaz, Adio and Andal and was friendly with them but was not on visiting terms with them. Our attention was drawn by Mr. Brohi to certain circumstances appearing in the evidence which show how this witness had identified himself with the complainant party and even his presence at the murder scene appeared to be doubtful. Firstly the only outsider who happened to be present at the scene of occurrence was a person who .Was very closely acquainted with the complainant party. In his evidence Ghulam Ali has stated that he knew the deceased and the three alleged eye-witriesses since 8-10 years. He also knew the three accused in the case and identified them. After the occurrence, although he claimed to be unconnected with the complainant party, behaved as though he is one of them. He accompanied the witnesses to where the deceased was lying injured, waited upto the time a cot was brought and accompanied the dead body to the police station. He even knew that Thangao from the complainant party was murdered by Bangwars. He has admitted that he is a direct subordinate as a game watcher of Sardar Sunder Khan who was his game warden. He has further admitted that Sardar Sunder Khan is the Sardar of the complainant party. In these circumstances the connection of Ghulam Ali (P. W.) with the complainant side appears to be closer than a mere acquaintance.
Besides in his evidence he has admitted that he had stated to the police that he was standing near the Rex Cinema when he heard gun reports, which would make his being an eye-witness of the occurrence rather doubtful. As to his presence at the scene he explained that he had come to Kandkhot in order to patrol the jungle in his beat (Taluka Kandkhot) where he had to check whether people shoot partridges. After inspecting the jungle he was returning to town and saw the incident.
In this explanation he has not attempted to explain the reason for his coming to Kandkhot and the circumstances indicate that he was a chance witness and had no particular reason to be present at the scene of occurrence.
8. For all their reasons we are of the opinion that the evidence of Ghulam Ali (P. W.) is not of such an unimpeachable character as to furnish the sole basis for conviction.
9. In view of the foregoing reasons this appeal is allowed, the conviction of the appellant under section 302 of the Pakistan Penal Code is set aside and he is acquitted. The appellant shall be forthwith released from custody if not required in any other case.