Hazoor Bakhsh petitioner has been challaned by the police under sections 302 and 460, P. P. C. in connection with a report lodged at Police Station Sadar, Khanpur on the 6th of May 1968. Bail has been refused to him by the learned Sessions Judge, Rahimyarkhan. He has now come up to this Court for the grant of the same. of the occurrence, heard noise coming from his kotha. He got up and found the door of the kotha opened. Suspecting that thieves were inside, he raised alarm, which brought to the cenes of occurrence Faqir Bakhsh P. W. Shortly thereafter the petitioner and his companion, Ashraf, came out of the room and were identified by Abdul Ghafoor with the help of a torch. Ashraf was carrying a pistol while the petitioner had a bundle of clothes. They threatened Abdul Ghafoor, as a result whereof, he did not attempt to capture them and the accused thus made good their escape by scaling over the wall. When the aforesaid accused were running away, Ashraf accused, who had a pistol with him fired at one Loonaji, who was attracted to the spot on hearing the alarm. He was hit in the chest and died shortly thereafter. The petitioner and his companion made good their escape.
3. The learned Sessions Judge, while refusing bail to the petitioner was influenced by the fact, that he was named in the first information report ; the complainant (Abdul Ghafoor) had named him in his deposition in the Court of the Committing Magistrate and one more eye-witness was still to be examined and that the offences were punishable with death and transportation for life.
4. Mr. Qaiser Mahmood Shall, Advocate for the petitioner and Mr. Fakhr-ud-Din Pirzada, learned Advocate for the State have been heard.
5. The learned counsel for the petitioner pointed out that the petitioner was not guilty of murder, inasmuch as, the death of Loonaji deceased was the result of a pistol shot fired at him by Ashraf accused. He was also not guilty of an offence under section 460, P. P. C. because the murder was committed after the offence of lurking house-trespass was complete. His contention precisely is that so far as the murder of Loonaji is concerned, there is no evidence that the petitioner was aware that his death would be caused by his co-accused.
6. Without expressing opinion as to the merits of the case I may mention that it has been brought to my notice that almost all the eye-witnesses have been examined and it is only Abdul Ghafoor P.
W., who has deposed to the participation of the petitioner in the crime. Since Loonaji deceased lost his life at the hands of Ashraf accused and he was killed at a time when the (fence of lurking house-trespass was complete, I feel that the etitioner, in the aforesaid circumstances, would be entitled to bail, he mere fact that his name appears in the first information report ould not, by itself, be sufficient to refuse bail to him.
7. For the aforesaid reasons, the application is allowed and t is directed that the petitioner shall be released on bail provided e executes bail bond in the sum of Rs. 25,000.00 (Rs. Twenty- ve thousand only) with two sureties in the like amount to the tisfaction of the Committing Magistrate.
It is made clear that e grant of bail to the petitioner would not influence the decision 'the Courts below, on merits.
Petition allowed. Bail granted, 1972 P Cc. L J 700 [Lahore] Before Muhammad Afzal Cheema and Saleern Mazhar, JJ SHER BAHADUR--Convict-Appellant versus The STATE--Respondent Criminal Appeal No. 699 of 1967, decided on 3rd December 1971.
Penal Code (XLV of I860), S. 302--Murder--Evidence, indivisibility of--Credibility of witnesses rejected against all acquitted accused but accepted for convicting appellant--Course adopted--Not legal-- All eye-witnesses closely related and interested in deceased and no other independent evidence to corroborate such partisan witnesses produced at trial--Possibility that occurrence took place during night when nobody was able to identify assailants, existing-- Conviction and sentence set aside in circumstances of case. [p. 703],4 Muhammad Sher and another v. The Crown PLD 1954 FC 84; Muhammad Akhtar v. The State PLD 1957 SC (Pak.) 297 and Thoba and another v. The State PLD 1963 SC 40 rel.
Sh. Naseem Hassan for Appellant.
S. M. Anwar for A.-G. for the State.
Dates of hearing : 28th, 29th October and 2nd November 1971.
Saleem Mazhar, J.--Sher Bahadur, his father Ali Khan, his brother Khan Bahadur, and his cousin as well as brother-in-law, Umar Khan, were tried by the learned Sessions Judge, Mianwali, on the allegations that on 15-1-1967 at 8 a.m. in the area of village Sawans, firstly, they committed house- tresspass into the house of Hafiz Sher Muhammad (P. W. ll) secondly, in furtherance of their common intention they murdered Fateh Muhammad, thirdly, they fired at Sher Muhammad P. W. ineffectively and lastly they caused injuries to a goat. The learned Sessions Judge vide impugned judgment dated 16-10-1967, acquitted Ali Khan, Khan Bahadur and Umar Khan but convicted Sher Bahadur appellant and sentenced him to transportation for life under section 302, P. P. C. one year's R. I. under section 425, P. P. C. and six months' R. I. under section 429, P. P. C. The sentences were, however, directed to run concurrently. Sher Bahadur has appealed to this Court against his convictions and sentences through Sh. Nasim Hasan, Advocate.
2. The occurrence took place at 8 a.m. on 15-1-1967 and was reported at Police Station Moehh, situated at a distance of eight miles from the scene of occurrence, at 12-15 p.m. on the same day by Hafiz Sher Muhammad (P. W. 11) father of the deceased.
3. The prosecution case, according to F. I. R. (Exh. P. B.) is that on 15-1-1967 at 8. a.m, Sher Muhammad P. W. alon with his sons Muhammad Saeed and Nur Muhammad (P. Ws. l2 and 13 respectively) and Fateh Muhammad deceased, were sitting by the side of a wall of the house of the complainant in the courtyard, and were enjoying sun shine when the appellant along with his acquitted accomplices turned up there armed with a gun each. Ali Khan (acquitted accused) shouted if they were prepared or not to leave his place. Sher Bahadur appellant fired which hit the deceased in the right flank and he felled to the ground. Khan Bahadur (acquitted accused) fired the second shot which hit the goat tied nearby. Ali Khan and Umar Khan (acquitted accused) also fired but their shots did not hit anybody. Fateh Muhammad died shortly afterwards. All the four accused left the place while firing. The occurrence was witnessed by Muhammad Saeed, Nur Muhammad P. Ws. and other people of the village.
As to the motive for the crime, Sher Muhammad stated in the F. I. R. that 15/16 years ago he had built a kotha in his courtyard, which had narrowed the lane of Ali Khan. Ali Khan had compelled him to demolish the kotha as the path had become narrow. About two months prior to this occurrence, Sher Muhammad demolished the kotha and a month prior to the incident Ali Khan had told him to remove the malba and to vacate the place because the land belonged to him. Sher Muhammad P.
W. refused to vacate the place and on this Ali Khan (acquitted accused) had threatened him and on account of that grudge the appellant and his accomplices murdered the deceased.
The report was recorded at the Police Station by A. S. I. Syed Shahabal Shah (P. W. 14).
4. A. S. I. Shahabal Shah reached the spot and found the dead body of Fateh Muhammad lying on a cot in the house of Sher Muhammad P. W. He prepared the inquest report (Exh. P. L.) and despatched the dead body to the mortuary through F. C. Ata Muhammad (P. W. 3) for post- mortem examination. He also prepared injury statement (Exh. P. K.) of the goat and took into possession vide memo. Exh. P. E. and sent the goat to Veterinary Assistant for medical examination.
He also collected a pellet from inside the kotha of Muhammad Hanif and made it into a sealed parcel vide memo. Exh. P. C. The shutter (P. 8) of the kotha which had holes of pellets, was also taken into possession vide memo. Exh. P. D. The goat died and its skin (P. 9) was retained.
Muhammad Nawaz (P. W. 7). Secretary, Union Council, produced application (Exh. P. F.) along with papers (Exh. P. F/l) which the Investigating Officer took into possession vide memo. Exh. P. M.
It may be stated here that according to Muhammad Nawaz P. W. there was no dispute with regard to the kotha between the complainant party and the accused party because this witness has clealy stated in his cross-examination that Ali Khan or his sons were not party to the application (Exh. P. F.)
5. Anwar Ali Shah (P. W. 10) S. H. O. Police Station Mochh, oh 20-1-1967, arrested the appellant and his accomplices when produced by Muhammad Abbas and Saidullah (both were not produced at the trial)- The appellant had an unlicensed 'l2 bore gun (P-1) which the S.H.O, took into possession vide memo.
Exh. P. G.
6. Dr. Nazir Ahmad (P. W. 1) who conducted the postmortem examination on 16-1-1967 at 11-30 a.m. observed the following injuries on Fateh Muhammad's dead body, aged about 14 years
(1) A 1/2" x 1/2' gunshot wound of entry on the right hip at the level of umnlicus. A little portion of omertum was coming out of the wound.
(2) A 1' x 1" laceration 2" below from injury No. 1.
The stomach was healthy and empty. The small and large intestines were punctured and contained traces of digested food. A pellet was taken from aorta region of abdomen and handed over to the police in a sealed cover. The abdominal wall was pierced by injury No. I. Death, in the opinion of the doctor, was due to shock and haemorrhage due to injury No. 1 which was sufficient in the ordinary course of nature to cause death. Time between injuries and death was within two hours and between death and post-mortem was within 30 hours.
7. Dr. Naseer Ahmad (P. W. 2) Veterinary Assistant Surgeon examined the female goat, aged about 1 years, and found the following three injuries :--
(1) One gunshot mark 1/8" x 1/8" over the nasel bone.
(2) One gunshot wound, " x " x below the inner canthus of the right eye. The bullet had ruptured the eyeball and has passed out of the body at outer canthus thus damaging the eye ball.
(3) One punctured mark over the right ear 1" from the root of the ear. Bullet, after passing the eyeball, struck the ear at this point. All the three injuries were gunshot wounds and their duration was 36 hours.
8. The appellant denied his guilt and stated that the case was the outcome of enmity and suspicion by Sher Muhammad P. W. of illicit relations with his daughter against me. He tendered in evidence the entry of the date of his birth (Exh. DD). He pleaded innocence and did not produce any defence.
9. The learned Sessions Judge disbelieved the motive, as alleged by the prosecution, the testimony of Sher Muhammad (P. W. II) because he was working as Imam Masjid and also running a shop in village Dandi, which is at a distance of five miles from the spot. The learned Sessions Judge also came to the conclusion that the gun (P. 1) could not be connected with the crime. Consequently, he acquitted three accomplices of the appellant but convicted him (the appellant) on the eye- witness account given by Muhammad Saeed and Nur MuhammadP. Ws. l2 and 13 respectively, coupled with the finding to the effect. It seems to me that some sudden affair took place which is suppressed by the prosecution and the defence between Fateh Muhammad deceased and Sher Bahadur accused. Slier Bahadur chased Fateh Muhammad into his house who took shelter in the kotha of Muhammand Hanif where he was fired at effectively along with the goat," as stated earlier.
10. We have learned counsel for the appellant as well as learned counsel for the State and have gone through the evidence on record. The main contentions of the learned counsel for the appellant are that the credibility of the witnesses which has been rejected against three of the accused, who have since been acquitted, but has been accepted for convicting the appellant, was not legal, that the eye-witnesses being closely related and interested in the deceased, strong corroboration was necessary, and that the learned trial Judge could not have acted upon the theory of a sudden affair which was not supported by any evidence. He also contended that the occurrence took place during the night when no body saw the assailants as was clear from the contents of the stomach of the deceased which was found empty and only small intestines contained traces of digested food.
11. Having considered the contentions raised by the learned counsel for the appellant we see force in them. Muhammad Saeed and Nur Muhammad P. Ws. are real brothers of Fateh Muhammad deceased and sons of Sher Muhammad complainant P. W. Regarding the occurrence both these witnesses have stated that Sher Bahadur appellant fired at the deceased which hit him on the side and Khan Bahadur (acquitted accused) fired which injured the goat of Muhammad Hanif while Ali Khan and Umar Khan (since acquitted) fired but na body was hit by their shots. They have further stated that the womenfolk of the accused party came there and took away the accused saying that Fateh Muhammad had been hit with the gun. Muhammad Saeed P. W. in his cross- examination denied to have stated before the police that the incident had been witnessed besides his father, brother, by other menfolk of the village also. He also denied to have stated before the police that the accused left for their house firing on the way. To the same effect is the testimony of Nur Muhammad P. W. He also denied to have stated before the police that apart from him, his father and his brother, other meufolk of the village had witnessed the occurrence. For the first time at the trial these two witnesses had stated Ali Khan and Umar Khan (acquitted aocused) had fired at Sher Muhammad P. W. and the two eye-witnesses. But if one looks at the site plan it would be apparent that if the appellant and his accomplices had any motive, they could easily do away with Sher Muhammad P. W. if he had been present there. We are thus not inclined to rely on the ocular testimony of Muhammad Saeed and Nur Muhammad P. Ws. in respect of the appellant also because there is no other independent evidence to corroborate them in spite of the fact that they had mentioned in their police statements that many people of the village had also witnessed the occurrence but none was produced at the trial. l2. Further we find from the testimony of the doctor that he did not find any bandage on the wound of the deceased as asserted by the eye-witnesses. The doctor in his cross-examination has admitted that the stomach becomes empty about four hours after the intake of the food and during the post- mortem examination he found the stomach of the deceased etqpty. If the occurrence, as alleged by the prosecution, had taken place at 8 a.m. on 15-1-1967, when the sunrise time at Lahore was 7-1 a.m. and at Mianwali would be 7-11 a.m. the possibility that the deceased might have taken his breakfast before enjoying the sun shine is there. But in view of the medical evidence the prosecution story becomes doubtful and there seems force in the contention that the occurrence took place during the night when no body was able to identify the assailant.
13. Learned counsel for the appellant, in -support of his first contention, has referred to us Muhammad Sher and another v. The Crown (1) wherein it is held :-- "Where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstances."
In Muhammad Akhtar v. The State (2) it has been laid down :-- "In a case of this kind, it is essential for the safe dispensation of justice that one or more confirmatory circumstances should exist, in order to satisfy the Court of the guilt of one or a few persons out of a large number, against whom evidence has been given which has been found to be generally defective, by reason of partisanship or otherwise."
In Thoba and another v. The State (3) it has been held that : "In that situation, ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, if such a source be not available, it must be supported by some strong circumstances, such as might serve to overcome the inherent doubt by which evidence is necessarily affected."
14. The upshot of the discussion above, therefore, is that we accept the appeal, set aside the convictions and sentences of the appellant and order him to be released forthwith if not required in any other case. The revision petition (Cr. R. 412/68) filed by Muhammad Saeed stands dismissed. .
(1) PLD 1954 FC 84 (2) PLD 1957 SC (Pak.) 297
(3) PLD 1963 SC 40 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.