MUFTAKHIRUDDIN, J.-This is an appeal from the judgment of the learned Sessions Judge, Kalat dated 12th June, 1974 whereby the respondents have been acquitted of the charges under sections 302/34 and 307/34, P. P. C. For which they were charged.
2. The respondents (1) Ghulam Muhammad son of Dad Karim Baluch, (2) Qadir Bakhsh son of Abdullah Baluch and (3) Gohram son of Muhammad Yaqub Baluch were charged with the murder of one Muhammad All and having fired at Molvi Ghulam Muhammad son of Qazi Abdullah and Muhammad Amin with the intention of causing their death in furtherance of common intention. A report in that behalf was lodged by one Muhammad Ibrahim in the Police Station Turbat on 25th May, 1963 at 8-20 a. m. Wherein it was alleged that "Muhammad Ibrahim (complainant) alongwith Muhammad Ali, Qazi Ghulam Muhammad and Muhammad Ibrahim were proceeding towards Turbat on cycles from Shahi Thump in order to furnish surety for his brother Abdul Rahim who alongwith his servant Noor Muhammad was involved in the murder of Yaqub (father of Gohram respondent) as the Sessions Judge, Kalat had ordered their release on bail. When this party reached village Chahsar Muhammad All was driving cycle and was ahead of Muhammad Amin.
Muhammad Ibrahim was sitting on a cycle being driven by the Complainant and they were followed by Qazi Ghulam Muhammad on a cycle. When they were passing by the house of Gohram and Ghulam Muhammad a gunshot fired from the house of Gohram passed over his head and thereafter two more shots were fired in quick succession, one shot passed in front while the other from the back but did not hit him. In the mean, time Gohram son of Mulla Yaqoob, Gbulam Muhammad son of Dad Karim resident of Chahsar, Qadir Bux son of Mulla Abdullah resident of Zar Bazar Turbat emerged from the wall of the house of Gohram and chased him and his companions and started firing. Gohram and Ghulam Muhammad had rifles with them while Master Ghulam Qadir had perhaps a dagger or knife with him. When they chased Muhammad Ali he got down from the cycle and stood up while the complainant and his companions ran towards Turbat. At a distance of 15 to 20 paces Muhammad Ibrahim was got down from the cycle and saw by turning his back that Gohram, Ghulam Muhammad and Master Qadir Bakhsh. All the three had caught hold of Muhammad All and were inflicting knife blows as the gun had jammed. Muhammad Ali was making enquiries from them as to what was the matter and why they were assaulting him. Within their sight those three persons killed Muhammad Ali on the spot. Qazi Ghulam Muhammad ran towards Tehsil and be himself came to the Police Station for lodging report. At the time when Gohram, Ghulam Muhammad and Master Qadir Bux had fired and killed Muhammad Ali two State force constables besides some other persons whose name my companions would furnish, were present on the site of occurrence. Gohram and his associates had fired on me and my companions and had killed Muhammad Ali because according to them in the month of Ramazan, his brother Abdul Rahim had killed Mulla Yaqub father of Gohram. The dead body of deceased Muhammad Ali is lying on the spot.
3. The S. H.O. Turbat after recording the F. I. R. Proceeded to the place of occurrence and secured the cycle cap and handkerchief of the deceased, vide inventories prepared by him. The cap was found bloodstained. Besides these articles one "chaddar", allegedly belonging to accused Gohram, also blood-stained was secured from the spot. Bloodstained earth was also secured from the place of occurrence, and after preparing the inquest report the dead body was sent to Civil Hospital for post-mortem. The post-mortem report is Exh. PIG and was received on 1st June, 1963.
Blood-stained shirt of the deceased was secured. Three empties P/6, P/7 and P/8 were taken into possession, vide Inventory P/K empties P/9, P/10 and P/11 were taken, vide Inventory P/L Live Cartridge P/12 and missed cartridge P/13 were secured, vide Inventory NM. The surety bonds Exhs.
P/F and P/H were obtained from the Office of the Deputy Commissioner and Assistant Commissioner. The site plan Exh. P/V was also prepared. Since the accused persons could not be arrested by the police the warrants of arrests of the accused were obtained from the D. M.
Application for proceeding under sections 87 and 88, Cr. P. C. Were made to the Assistant Commissioner and incomplete challan was submitted and proceedings under section 512, Cr. P. C.
Were taken against the accused.
4. Subsequently the accused were arrested in 1970 and after enquiry (committal proceedings) the accused were committed to the Sessions where the trial was conducted. But the learned Sessions Judge Kalat, vide his order dated 12th June, 1974 has acquitted all the three accused. Against this order this appeal has been filed which was admitted for regular hearing on 1st November, 1975 by a Division Bench of this Court and the bailable warrants in the sum of Rs, 10,000 each against the respondents were ordered to be issued but the attendance of only respondent No, I (Ghulam Muhammad) could be procured and about the remaining respondents the report from D. C. Turbat was received to the effect that they are out of country. At the request of the learned A. A.-G, the notices in the name of the respondents 2 and 3 were published in Newspapers at Karachi and Quetta but their attendance could be secured. Accordingly on 30th May, 1983 it was ordered by this Court that the matter should proceed against respondent Ghulam Muhammad and the further proceedings against the respondents 2 and 3 would depend on the result of the appeal.
5. In support of the prosecution as many as 13 witnesses were examined, out of them P. W. 1 (Muhammad Ibrahim the complainant), P. W. 2 (Muhammad Ibrahim), P. W. 4 (Ghulam Muhammad son of Qazi Abdullah and P. W. 6 (Hassan son of Adoo), P. W. 8 (Muhammad Ibrahim son of Yali) are alleged to be the eye-witnesses. The absconsion of the accused is relied as a circumstance against the accused/respondents. The recoveries of empties from the house of Gohram and the chaddar Exh. P. 3 and the persons in whose presence these recoveries were affected have been examined and these recoveries have been relied as evidence of incriminating nature. To prove the absence of the accused Qadir Bux (a teacher in Chahsar School) from the School P. W. 7 (Master Allah Bakhsh) has been examined. The respondents 2 and 3 pleaded not guilty and have produced defence witnesses to justify their abscondence while Ghulam Muhammad accused/respondent No, 1 has stated in his statement recorded under section 342, Cr.
P. C. In reply to Q. 23 that "Gohram accused and his father deceased Yaqoob were inimical to me we were bound down prior to this occurrence. I am innocent". About the prosecution witnesses he said that P. Ws. Are related inter se and they have deposed due to enmity.
6. The learned Sessions Judge framed the following points for determination ; (i) whether the accused have committed the murder of deceased Muhammad Ali in furtherance of their common intention, (ii) whether the accused have attempted to take lives of P. Ws. Muhammad Amin, Molvi Ghulam Muhammad and Muhammad Ibrahim and has examined the following pieces of evidence produced by the prosecution (1) motive, (2) ocular evidence, (3) Absconsion of the accused, (4)
Recoveries of empties from the house of Gohram, (5) Recovery of chaddar Article P. 3 from the place of occurrence and is stated to belong to Gohram accused, (6) Absence of Qadir Bakhsh accused from the School where he was posted as Teacher.
7. Since the death of deceased Muhammad Ali was not denied even by the defence, the learned Sessions Judge on the basis of the evidence of Doctor (P. W. 3) who had performed the post- mortem on the dead body came to the finding that the fact of death of deceased is proved, but on the point of motive he was of the opinion that it was immaterial. He has taken pains in analysing the prosecution evidence and has held that P. W. 1 (the complainant) the brother of Abdul Rahim who was arrested in connection with murder of Yaqoob father of Gohram accused has not been able to establish that the relation of deceased with the accused were strained as the parties were not bound down. The strained relationship resulting in the has not been established, the motive was held to be not proved. About the worth of the statements of P. Ws. 1 and 2 the learned Sessions Judge was of the opinion that since they are interested and inimical to the accused, corroboration from independent and unimpeachable character was required which corroboration could not be brought on record and in spite of the fact that it was alleged by these witnesses that many persons had collected on the spot, none appeared to depose in Court. It was pointed out that in the list of witnesses of the prosecution some names were mentioned but those persons were not examined and the A persons produced did not support the prosecution case. The adverse inference was therefore drawn against the prosecution. The learned Judge expressed himself in these words :- The close analysis of the statements of P. Ws. 1 and 2 is that besides these P. Ws. There are other persons who had seen the occurrence and they were present at the spot. It is an admitted feature that the incident has taken place on the main road and many persons were coming and going on that Road. The further contention of the prosecution is that the incident has taken place at about 8 a. m. The date of incident is 25th May, 1963 and thus it was in the broad daylight. The police did not examine the independent witnesses in spite of the fact that the P. Ws. Have deposed that many persons were present at the time of incident. The police did not make any attempt to procure the independent witnesses of unimpeachable character though in the F. I. R. It has been clearly stated that many persons were present at the spot. P. Ws. 1 and 2 themselves did not give the names of any other persons so that they could be examined by the police. The witnesses cited in the list of witnesses namely Umar, Pir Muhammad, Muhammad Khan and Ibrahim have not supported the prosecution The adverse presumption naturally arises against the prosecution that the witnesses abandoned by the prosecution would have been examined. They would have deposed against the prosecution. Thus we have ocular testimony of two interested witnesses, P. W. 1 and P. W. 2 in comparison to four witnesses of incident who have not supported the prosecution. P. Ws. 1 and 2 have deposed that P. W. 4 had also witnessed the incident, P. W. 4 has appeared and in fact supported P. Ws 1 and 2 on the material points. But this witness has not stated to the police that Gohram and Qadir Bakhsh had chased the deceased Muhammad Ali and injured him with knife and killed him. This witness was also examined under section 512, Cr. P. C. And in that statement he has again stated that he has not seen the deceased Muhammad Ali being injured. Thus this witness has contradicted P. Ws. 1 and 2 that he had seen the incident. P. W. 9 Abdul Salam is a mashir and he was contacted by P. Ws. Molvi Ghulam Muhammad and Muhammad Ibrahim just after the occurrence. They have not given the names of the culprits to P. W. 9 Haji Abdul Salam, therefore P. W. Ibrahim has also been contradicted by this material witness who is related to the complainant and is brother of P. W.
4. It is cardinal principle of law that the testimony of the interested witnesses must be accepted with care and caution and it is prudent and safe to see for some confirmation before the evidence of interested witnesses is relied upon for the purpose of conviction."
' About P. IV. 4 it is found that he is the husband of the sister of P. W. 1 Muhammad Amin. He is also brother of P. W. 9 Haji Abdul Salam. These witnesses are closely related to the complainant. The witness was examined in the Court after a lapse of considerable time, his statements to the police and to the Magistrate are earlier in time and they have more force than the improved statement made in the Court. About P. W. 6 (Hassan son of Abdoo) the learned Sessions Judge has expressed that he is a set up witness and had been introduced later on to fill in the gap of the prosecution.
Had he been present at the spot, he would have been mentioned by the complainant in his F. I. R.
As his name was known to P. W.
1. The learned Sessions Judge has pointed out that upto 18th June, 1963 when the interim challan was submitted the name of P. W. 6 " does not find place in the list of witnesses and in his statement recorded under section 512, Cr. P. C. He has not said anything about the incident. He has even disowned having given any statement under section 512, Cr. P. C. And in the narration of facts he has gone a step further and stated that Gohram pulled out the knife from the fold of his "shalwar"- a fact which was not said even by P. Ws. Land 2 and 4. The witness was therefore declared a false witness and his statement was ruled out of consideration.
8. The learned Sessions Judge while considering the absconsion of the accused though came to the conclusion on the basis of the statement of the Investigating Officer that the accused after the occurrence had left their places and thus were declared proclaimed offenders but this aspect of the case does not establish beyond doubt the case against the accused as would' be discussed later in this judgment.
9. The recoveries of the articles were also not sufficient to connect the accused Gohram for the simple reason that the recoveries were made from a place which was easily accessible to others and there was no independent witness of the locality when the place was searched.
10. The learned Assistant Advocate-General has laid stress on the following points ; (a) that the material witnesses have not been properly appreciated and in that connection has submitted that the trial Court has been misled by some missions which according to him are minor, (b) the ascendance for 7 years is a corroborative evidence which has not been taken into account, (c) the aspect of enmity has not been given due consideration.
11. Before we advert to the contentions of the learned A. A.-G. We cannot overlook a very important aspect brought on record by the prosecution witness Abdul Salam (P. W. 9). Though this witness is related to the main prosecution witnesses but has admitted that accused Gohram and his father on one side were inimical with Ghulam Muhammad and his family. The father of accused Gohram had beaten and caused injuries to accused Ghulam Muhammad on his face prior to the present occurrence and there are cases pending between both the parties in the Court of the Deputy Commissioner. This witness was a sitting Chairman of the Town Committee and by this admission he has relieved the accused Ghulam Muhammad of his burden of proving his plea as stated by him in his statement referred in para. 5 of this judgment. Ghulam Muhammad was charged with other accused having fired with the intention of causing death in furtherance of common intention as laid down in section 34. The main question in this case would therefore be whether he could be convicted of murder or attempt to murder upon the true construction of section 34, P. P. C. Which reads :- "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
The test as to the applicability of constructive liability under section 34,1 P. P. C. Is to be found in the phrase "in furtherance of common intention of all. In Mehboob Shah's case , Sir Madhavan Nair who rendered the judgment on behalf of the judicial Committee of the Privy Council observed A at page 120 of the report :- "Section 34, lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intention of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of section 34, successfully, it must be shown that the criminal act complained against was done by one of the accused I the furtherance of the common intention of all ; if this is shown, then liability of the crime may be imposed on any one of the persons in the same manner as if that act was done by him alone. This being the principle it is clear to their Lordships that common intention within the meaning of section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should b proved that the criminal act was done is concert pursuant to the pre-arranged plan. As has been often observed, it is difficult to prove the intention of an individual ; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case."
Mehboob Shah's case was followed by Supreme Court (India) in Pandurang, and others v. The State of Hyderabad . In the instant case of two families of Ghulam Muhammad and the father of Gohram were at loggerheads and were involved in the litigation trying to involve each other.
Therefore there could be no community of purpose of common design or common intent, in furtherance whereof these two accused could join hands with other accused and thus there was no mental nexus between the accused persons and therefore there can be no prior meeting of mind between Ghulam Muhammad and Gohram. In the instant case therefore there could be no pre-arranged plan which could persuade the accused Ghulam Muhammad to join hands with Gohram in the commission of the offence. The case of the prosecution appears to be unbelievable.
On careful consideration we have come to the conclusion that in the present case there is no evidence nor there is any circumstance from which it might be inferred that Ghulam Muhammad must have been acting in concert with Gohram. The accused Ghulam is resident of village Gustang where-from he was arrested on 19th July, 1970 and no effort was made earlier to trace him.
Strangely enough no independent witness could be produced to prove that Ghulam Muhammad had a house at village Chahsar. The plan Exh. P/V is conspicuously silent on this point and that house does not find a place in Exh, PIV The presence of Ghulam Muhammad in village Chahsar on the day of incident is therefore not established beyond doubt. In Anis Mandalv. State , it was held that when there is no evidence of common design section 34 was held inapplicable.
12. The learned A. A.-G. Has submitted that the relationship of' witnesses to the deceased is not by itself a ground to disbelieve them and cited some precedents also. The decision is an authority on its own facts as they stand and the consideration which arise thereon. Thus the decision is an authority in keeping with the facts peculiar to that case. Equally, significant and cogent is the proposition as laid down in Najibullah's case , that the relationship of the eye-witnesses with the deceased by itself is no ground to disbelieve or doubt their evidence but in the event of lack of1 2 3 4 corroboration material their evidence has to be examined with caution. F In Mir Muhammad and 3 others v. The State , it has been pointed out that it would be dangerous to place reliance upon evidence of witnesses who are related inter se and there was enmity with the accused.
' We have examined the record and the evidence in this case and have endeavoured to form our opinion as to facts relevant to the acceptance or otherwise of that evidence not for the purpose of substituting our conclusions for those of the trial Court but because it was contended by the learned Assistant Advocate-General that the evidence has not been properly appreciated rather it is misread. The appellate Court hesitates to interfere with conclusions of facts recorded by the trial Court. We have found that the trial Judge has very carefully scrutinized the evidence of the witnesses and has found it to be unbelievable. The evidence is obviously of interested persons who are very closely related to the deceased. Apart from this relationship, as pointed out by the learned Sessions Judge their testimony suffers from contradictions/omissions and even improvements have been attempted. Although according to these witnesses several persons were on the spot or near about, no body came forward. The occurrence has taken place in the day light and was on the main Road, the trial Court has not found it safe to convict the respondents. In these circumstances as held by the Supreme Court in Khan Zaman's case , the abscondence in the circumstances cannot be held to be a corroborative circumstance of any value. In the case of Mangio v. State , a Division Bench of Karachi High Court has observed :- "The fact of absconsion of accused is not a piece of evidence against the accused. Such a conduct can be equally consistent with hi H guilt or innocence. A person whose name is mentioned in the F.
I. R. May abscond if he is innocent to avoid unnecessary arras and harassment and in case he is guilty to escape from the clutches of law. No inference one way or the other can be drawn from the fact of absconsion."
' We are in agreement with this view.
13. The principles which have been laid down by the Supreme Court from time to time, governing the question and scope of interference with the order of acquittal are now well settled. The Supreme Court in Bashir Ahmed's case , has observed thus :- "The principles which have been consistently followed by this Court for justifying interference with orders of acquittals passed by the High Courts, have been clearly laid down in the case of Lalu v.
The State PLD 1959 SC 258 and Fateh Muhammad v. Bagoo and others PLD 1960 SC 286. They seem to indicate that unless it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported to acquit is at all supportable, this Court will be reluctant to interfere, even though upon the evidence on the record and the facts and circumstances of the case this Court might well come to a different conclusions if it was trying the case,"
In the case of Bagh Ali v. The State , it has been held by the Supreme Court that ocular evidence in order to carry conviction on capital charge j must come from an unimpeachable source or may be supported by some strong circumstantial source.
In our opinion the learned Sessions Judge has based his findings on the evidence on record. He has taken a possible view of the evidence on record and it cannot be held that the finding of acquittal recorded by him in favour of the respondents was arbitrary or capricious and we do not find any error of law or serious error of fact having been committed by the trial Court in appreciating the ocular testimony. There is no corroboration of ocular testimony which has been given by interested witnesses. No exception therefore, can be taken to the finding of acquittal recorded by the learned Sessions Judge.
For the above reasons the appeal is dismissed. The bail bonds of the respondent stands discharged. 5 6 7 8 9 AIR 1945 P C 118 PLD 1956 SC (Ind.) 176 PLD 1959 Dacca 36 1973 P Cr. L J 737 1972 P Cr. L 31108 1972 SCM R 574 1976 P Cr. L J 243 PLD 1969 SC 469 PLD 1973 SC 321