' SHAFIUR RAHMAN, J.--Shah Bakhsh, a convict under section 302, P.P.C. Has filed an appeal as of right under Article 185(2)(a) of the Constitution as his acquittal by the Trial Court was set aside on State Appeal by the High Court and he was sentenced to life imprisonment and a fine of Rs,50,000 or in default R.I. For further period of four years.The complainant Muhammad Amir has filed a petition seeking leave to appeal against the same judgment of the High Court praying that on conviction under section 302, P.P.C.,the sentence of the appellant/convict Shah Bakhsh be enhanced to death. This judgment disposes of both the matters.
2. Muhammad Nawaz Saliana, brother-in-law of Muhammad Amir, P.W.2 the complainant and Ghulam Muhammad deceased, had an altercation in a 'Kabaddi' match with Shah Bakhsh, appellant The altercation had generated such enmity that Shah Bakhsh had attempted twice on the life of Muhammad Nawaz Saliana for which the latter had lodged report with the Police.
Ghulam Muhammad deceased was a school teacher and had been actively assisting Muhammad Nawaz Saliana in prosecuting the criminal case against Shah Bakhsh, the appellant.
3. On the 13th of February, 1972 Ghulam Muhammad deceased had gone to Jhang and had attended a marriage there, He was returning by bus to his village Saliana. Allah Yar P.W.3 and Ali Muhammad P.W.4 had also gone to Jhang and returning by the same Bus. Muhammad Arnir P.W.2, brother of the deceased had gone to Chah Waslianwala in order to collect money from one Wali Saliana and was returning on foot. When the Bus reached near the graveyard of Umar Kanjoo, Bashir (driver of the bus) stopped the bus as the culvert over which it was to pass was damaged.
Bashir alongwith Allah Yar and Ali Muhammad started repairing the culvert so that the bus may cross it. There was heard a fireshot from the side of Khola close to the culvert. Bashir went forward to ascertain the reason. Soon Shah Bakhsh armed with a rifle and his companion Sakhi Ahmad (separately tried and acquitted) armed with a gun approached the bus, asked every one to come out from the bus, picked up Ghulam Muhammad, took him aside and Shah Bakhsh fired at him three effective rifle shots while Sakhi Ahmad fired one effective gunshot. Muhammad Amir P.W.-2 had taken cover in the watercourse and had seen the occurrence. Allah Yar P.W.3 and Ali Muhammd P.W,4 also saw the occurrence. Muhammad Amir P.W.2 went to his village and learning that the Police was already in the village in the School compound, went there and lodged the report about the occurrence with Muhammad Sadiq P.W.15 at 8-00 p.m. The occurrence was shown in that report to have taken place at 5-30 p.m.
4. Muhammad Sadiq, A.S.I. P.W.15 went to the spot, prepared the injury statement and the inquest report and sent the dead body for its autopsy. He took into possession blood-stained earth from the spot and four bullet empties Exh. P.2/1-4 and a cartridge empty Ex.P.3, lying near the spot, which was taken into possession vide Memo Ex.P.E. The empties were sent to the Fire Arms expert and delivered at the laboratory on the 7th of March, 1972 by Muhammad Zaman P.W.
18. The appellant was declared an absconder and proceedings under sections 87 and 88, Cr.P.C.
Were taken against him. His co-accused Sakhi Ahmad was separately tried and by the judgment dated 5-12-1973 acquitted of the charge.
5. The appellant was arrested from New Anarkali, Lahore on 3rd of April, 1973. On 6th of April, 1973 he led the Investigating Officer to his Kotha which was locked and from inside got recovered a service rifle alongwith 194 live bullets which were taken into possession vide memo Ex.D.C. It was also sent to the Fire Arms Expert and his report indicated that the four empties received by him earlier and shown to have been recovered from the spot matched with the service rifle allegedly recovered at the instance of and from the possession of the appellant Shah Bakhsh.
6. The appellant denied the enmity, his involvement in the occurrence, abscondence and the recovery or possession of the rifle Ex.P.1. What he stated was that he was employed in the 2nd Army Aviation Squardron, Lahore in those days and on coming to know that a false case has been registered against him he appeared before the Police and surrendered. About the rifle Exh.P.1, he stated that it was the property of the Army and was issued to Army personnel by rotation. He explained the case against him by saying that "Muhammad Nawaz Saliana was inimical towards me. He got me involved in two false cases. Ghulam Muhammad deceased was murdered by some body while passing through the graveyard at about Ishawela. Muhammad Nawaz got me involved in this case because of his previous enmity with me." He produced Muhammad Yaseen, Head Constable, Moharrir, in defence.
7. The trial Court on an analysis of the evidence led at the trial came to the conclusion that the lodging of the First Information Report was inordinately delayed, that none of the eye-witnesses had seen the occurrence,that the medical evidence contradicted the ocular evidence, the motive remained unproved and mere abscondence was not sufficient to implicate the appellant. The recoveries were also not believed. The judgment concluded with the observations as hereunder:-- "The upshot of the above discussion is that the prosecution has failed to bring home the charge to the accused beyond any reasonable doubt. The alleged eye-witnesses, in my opinion, did not see the occurrence and they are interested. The medical evidence contradicts the oral evidence. The circumstantial evidence is not sufficient to record a finding of guilt against the accused. The accused, Shah Bakhsh, while availing the benefit of doubt is acquitted of the charge. He is present in police custody, he shall be released forthwith, if he is not required in any other case."
8. On State appeal the learned Judges of the High Court reappraised the entire evidence and analysed it. As regards the contradiction between the ocular account and the medical evidence the learned Judges of the High Court reconciled it or explained it by observing as hereunder:-- "The learned Trial Court overlooked the fact that at the relevant time the witnesses were in a state of panic and scared of their own lives particularly Amir complainant who had hidden himself in the watercourse. In such a state of commotion and confusion it was difficult for the witnesses to pinpoint the result or the impact of the shot. It is the case of the prosecution that two weapons i.e. Rifle as well as a .12 bore gun were used and there were bullet as well as pellet injuries on the dead body. Eye-witnesses were unanimous that when the deceased had fallen down, co-accused Sakhi Ahmed fired his .12 bore gun hitting him, therefore, there might be a mistake in observation of the injury suffered in the chest."
' The High Court concluded as hereunder:- "The ocular evidence coupled with the evidence relating to recoveries, the report of the Fire Arms Expert and the abscondence of the accused has conclusively proved the prosecution case against the respondent."
' The High Court thereafter considered the question of sentence and for various reasons given in the judgment not death but life imprisonment and a fine of Rs,50,000 was awarded.
9. Raja Muhammad Anwar, Advocate, the learned counsel for the appellant, in the first place pointed out that the occurrence having taken place on 13-2-1972 and the Law Reforms having been promulgated on 14-4-1972, it was a case of awarding of sentence of transportation for life rather than imprisonment for life even if all the conclusions drawn by the High Court are sustained. With regard to the evidence led at the trial the learned counsel for the appellant has contended that once it was found that the eye-witnesses were not present at the spot at the time of occurrence or that there was intrinsic contradiction in their testimony or that their conduct during and immediately after the occurrence was suspect, there was no occasion left for seeking corroboration of their statements. It is also contended that the trial Court having examined every aspect of the case and having not believed the eye-witnesses and their testimony, there was no occasion for the High Court to interfere with such a plausible inference in the absence of defect of law, jurisdiction or misreading of evidence. The recovery of the weapon of offence and its possession by the appellant was not proved beyond reasonable doubt. His abscondence was also not established from proper record. All these, according to the learned counsel for the appellant, were sufficient grounds to sustain the conclusion drawn by the trial Court.
10. Mr. Aftab Farrukh, Advocate, the learned counsel for the complainant/ Muhammad Amir, on the other hand contended that the reappraisal of the evidence by the High Court on the State appeal was in accord with the requirements of law and satisfied all the norms of criminal trial and jurisprudence relating thereto. The eye-witnesses had properly explained their presence and made consistent statements. It was a case where the normal sentence of death should have been imposed on the appellant on his conviction under section 302, P.P.C.
11. All the three eye-witnesses had a different reason and different explanation for establishing their presence at the spot at the time of occurrence. Muhammad Amir P.W-2 claims to have gone to collect money due from Wali Saliana at Chah Waslianwala which village is in the neighbourhood where the occurrence took place. He did not remember the exact amount which he had to recover from Wali Saliana. He stated that he could not contact Wali Saliana as he was stated to have gone out with his camel. He was following the same direction in which Wali Saliana was said to have gone with his camel when he encountered the bus and when he saw the occurrence. Allah Yar P.W.
3 whose sister is married to Muhammad Amir had gone to the village Chund and he had boarded the bus from there. Ali Muhammad P.W-4 had gone to Jhang to make purchases and was returning from there. Muhammad Amir (P.W-2) stated "after leaving the dead body at the spot in the care of the above named P.Ws., I went to my village. I went to my house to get ready to go to the P.S. To lodge the report but while in my house I came to know that the Thanedar was present in the School in our village". Allah Yar (P.W-3) on the other hand stated "Amir (P.W) told us to stay with the dead body but we did not agree with this as we had no arms with us to defend ourselves and we also left the spot." He admitted in the cross-examination that "it is correct that we had left the dead body lying at the spot and we left to our houses". This conduct of those closely concerned with the deceased and the contradiction in the medical evidence which has been taken note of by both the Courts makes the presence of these witnesses extremely doubtful.
12. The ocular evidence with regard to the actual occurrence is also contradicted by the medical evidence. Dr. Muhammad Saeed (P.W-1) reported the following injuries on the dead body of the deceased Ghulam Muhammad:- "(1) A fire-arm wound of entry on the back of head at the prominence 1/2" x 1/2" with a wound of exit 1" x 1" on the back of left ear.
(2) A fire-arm wound of entry 2" x 2" on the left side of front of chest 1/2" below the nipple going deep into the chest.
(3) A fire-arm wound on the back of left upper arm above the left elbow joint. The wound consists of multiple penetrating opening in an area of 3" x 2".
(4) A lacerated wound 2"x 1" x skin deep on the back of left wrist joint.
(5) A lacerated wound 1/2" x 1/4" x skin deep on the knee joint.
(6) A lacerated wound 1/2" x 1/2" x skin deep on the back of the right thigh 5" above the knee joint.
13. From inside the dead body were recovered 23 pellets. According to the Doctor, injury No,1 was caused by a bullet while injuries Nos.2 and 3 were caused by a shotgun. The doctor was confronted with his earlier statement made at the trial of Sakhi Ahmad acquitted co-accused, wherein he had stated that all the first three injuries could be caused by the same weapon. The ocular evidene indicated that Shah Bakhsh had boarded the bus, identified Ghulam Muhammad deceased as the markedman, brought him down the bus, taken him aside and fired three shots from his rifle causing injury to him on which he fell on the ground followed by one shot by Sakhi Ahmad from his shot gun. This ocular account of the injuries contradicts the medical evidence and the High Court attributed this to the panic and the confusion from which the eye-witnesses must have been suffering at the time of occurrence. Amir, the brother of the deceased had the opportunity of observing the incident from a distance and had taken cover, according to him, in the watercourse.
He had, therefore, secured himself against exposure and attack and had the opportunity of watching the occurrence. The reason given by the High Court may not hold good in his case.
14. Bashir, driver of the bus, who was the natural and the disinterested witness, was given up by the prosecutor not because he had been won over or was not likely to make a truthful statement but because it was considered unnecessary to produce him. It is difficult to subscribe to this opinion about the value of Bashir's testimony.
15. The recoveries from the spot, of the empties, even if held established, do not go far enough because the recovery of the rifle at the pointing out of the appellant has not been satisfactorily established. The Kotha from which recovery was made was found locked. During the proceedings, when the service of various notices was taking place the appellant was declared absconding. The possession of the appellant over the room from where recovery was effected, has not been shown to exist because he did not provide the key to the lock nor explained its absence. The lock was straightway broken by the Investigating Officer for effecting the recovery. None of the family member of the appellant was ever found occupying the possession of this Kotha/room or the adjoining one where ordinarily they reside.
16. As regards the abscondence, Muhammad Zaman, Head Conbstable/Moharrir (P.W-18) who conducted most of the proceedings, stated that he was acquainted with the house of the accused and with the accused himself before he went to execute the warrants. He also knew that he was employed in the Army. Notwithstanding the fact that he was employed in the Army all the proceedings for effecting service of the warrants of arrest were completed at the house where none was residing. No effort at any stage was made either to serve him notices or to find out the ordinary place of his employment, or the person to whom the service rifle had been issued at the relevant time. Both these facts were capable of accurate proof by proper evidence. In the absence of it, the prosecution case on capital charge cannot be said to be free from doubt.
17. We find that the trial court was justified in coming to the conclusion that the case of the prosecution was not proved beyond reasonable doubt. It was not a case where the reversal of the acquittal was called for.
18. We accept the appeal, set aside the judgment of the High Court. The appellant shall be released forthwith unless his detention is required in some other case. The petition filed by the complainant is consequently dismissed as found to be without merits.