ASLAM RIAZ HUSSAIN, J: -- Akbar Shah son of Hayat Shah aged 40 years, was tried along with Gaman, Lashkar, Akram and Hasan Ali by the learned Sessions Judge, Sheikhupura (another co- accused, namely, Ghulam Sangrana absconded during the commitment proceedings). The Learned trial Judge by his judgment dated 20-2-1971 acquitted the four co-accused but found Akbar Shah guilty of offence under sections 302/307/364 and 45`x, P.P.C. And sentenced him as follows: Under section 302, P.P.Cto death Under section 307, P.P.C7 years' R.I Under section 364, P.P.Cto 7 years' R.I. And Under section 452, P.P.Cto 4 years' R.I The sentences of imprisonment were to take effect only if the sentence of death is not confirmed by the High Court and were then to run concurrently ' - Akbar Shah has filed this appeal against his conviction and sentences. The matter is also before us under section 374, Cr. P.C. For confirmation of the death sentence. We propose to dispose of both the appeal as well as the murder reference by a single judgment.
2. The occurrence took place at about 11 p.m. On the night between 27/28-2-1967 in the house of Hassan Shah P.W.16 in village Goinda, Police Station Sharaqpur, District Sheikhupura. The report Exh P.O. Was however lodged by one Barkat Ali (P.W.22) a resident of village Bhole Shah situated at a distance of 1/2 mile from the village or occurrence. He gave the following version in the FIR.: "On the night of the occurrence he was sleeping in his house in village Bhole Shah when at about 11 p.m. He heard the report of gun-fires, followed by hue and cry, coming from village Goinda. He came out and proceeded towards that village. Haji Muhammad Ismail and many other people of Mauza Bhole Shah also followed him. In the way he passed by the well Chah Tibba Wala. A little beyond the said well he found a woman bewailing and saying `O! Brothers, we have been robbed.
We have been killed. Our enemies are forcibly taking away our daughter Help us'. When Barkat Ali P.W. And others reached the village, the accused had already forcibly carried away the daughter of Hassan Shah P.W.16, Hassan Shah and other inmates of the house were lying injured and one of them, namely, Mehtab Shah was breathing his last. On seeing this Barkat Ali P.W accompanied by Haji Muhammad Ismail and Hassan Din, Chowkidar went to Police Station Sharaqpur and lodged the report Exh P.O. At 3-30 a.m. It was recorded by Ataullah S.I. (P.W.25),, S.H.O. Of the said police station. No motive is mentioned in the F.I.R. But Hassan Shah P.W.16 stated at the trial that Akbar Shah accused/appellant was demanding the hand of his daughter Mst. Zubeda Bibi for Jewan Shah but he (Hassan Shah P.W.), refused because Jewan Shah aforementioned was a Badmash and was serving a sentence in jail. Three or four days prior to the occurrence he married Mst.
Zubeda Bibi to Anwar Shah P.W.17, which was seriously resented by Akbar Shah appellant. As a result, on the night of the occurrence, when Mst. Zubeda Bibi had come to her father's house, he and his companions armed themselves, raided Hassan Shah's house and forcibly abducted Mst.
Zubeda Bibi. During the incident four inmates of her house were injured while one (Mehtab Shah) was killed. According to the story, as told by the eye-witnesses at the trial, Akbar Shah appellant was armed with a Safa Jang while Ghulam Sangrana co-accused was armed with .12 bore gun.
The latter fired at Mehtab Shah (deceased) and Hassan Shah and Anwar Shah P.Ws. At the instance of Akbar Shah appellant. Iniuries were also caused to Mst. Ghulam Fatima and Mst.
Ghafooran P.Ws. By Akbar Shah appellant and Lashkar co-accused."
3. After recording the F.I.R. Ataullah S.I. Accompanied Barkat Ali P.W. To the spot, from where he took into possession some blood-stained earth, five empty cartridges and some pieces of broken bangles vide memos. Exhs P.G P.H. And P.J. Respectively. He also took into possession four moulds from the spot vide memo. Exh. P.CC. He found Hassan Shah P.W.16, Anwar Shah P.W.17, Mst. Ghulam Fatima P.W. 18 and Mst. Ghafooran P.W.19 to be injured and sent them for medical examination. He also found Mehtab Shah lying dead and sent his body to the mortuary for post-mortem examination.
On 11-3-1967 he arrested Ghulam Sangrana, Lashkar, and Akram co--accused. Guns P.14 and P.15 as well as knife P.16 and hatchet P.17 and a Dopatta P:13 were recovered at the instance of the abovementioned co-accused, but the details thereof need not be given because they have already been acquitted and their case is not before us. Akbar Shah appellant was arrested on the 31st of July, 1967. He was found injured and got medically examined. Subsequently about 2-1/2 months later, on 12-10-1967, a track parade was held with regard to the tracks of Akbar Shah appellant and Ghulam co-accused. This was supervised by Manzur Hussain M.I.C. Lahore (P.W.24)
According to the learned Magistrate, Fateh Sher Tracker (P.W.15) correctly identified the tracks of both the said accused.
Dr. Muhammad Aslam Arshad P.W.1, conducted the post-mortem examination on the dead body of Mehtab Shah deceased and found a gunshot wound spread in an area of 11" x 10" on the lower part of the abdomen and two abrasions, one on the left side of the chest and the other on the left upper arm. Injury No. l was sufficient to cause death in the ordinary course of nature.
5. Dr. Abdul Majid P.W.26, who examined the injured witnesses, found six gunshot wounds on the person of Anwar Shah (P.W.17).
He found five gunshot wounds and one reddish swelling 1" x 2" on the left buttock of Hassan Shah P.W.16.
On the person of Mst. Ghulam Fatima P.W.18, he found one incised wound, three abrasions and one contusion mark. She also complained of pain over the left and right shoulders.
Mst. Ghafooran Bibi P.W.19, only complained of pain over the left shoulder and the left side of the chest.
6. Dr. Muhammad Bashir Ahmad P.W.2, examined Akbar Shah appellant on 31-7-1967 and found:
(1) A healed vertical scar mark 3/4" x 1/8" on the forehead.
(2) A healed scar mark on the outer aspect of palmer surface of middle phalanx of right middle finger 1/2" x 1/8".
Both the injuries were simple in nature and according to the doctor they were about 4 or 5 months old. They had healed completely.
7. In support of its case the prosecution produced as many as 28 witnesses. It mainly relied on the evidence of motive, the ocular testimony of the injured P.M., the recovery of the weapons and the medical evidence.
8. All the accused, when examined under section 342, Cr. P.C., denied their guilt and pleaded innocence. Akbar Shah appellant also denied the occurrence and stated as follows: "Jewan Shah was the murderer of my mother, namely, Mst. Hussain Bibi. He was tried for her murder but was acquitted by the Additional District and Sessions Judge, Sheikhupura. I filed an appeal against acquittal and the High Court awarded him death sentence. The Supreme Court, however, converted his sentence into life imprisonment. Jewan Shah was confined in jail in those days. Moreover, Kalay Shah, real brother of Jewan Shah, had divorced my sister, namely Mst.
Naziran Bibi before the murder of my mother by Jewan Shah. Besides Mst. Mehran Bibi real sister of Mst. Fatima P.W. Had been enticed away by my maternal-uncle, namely, Mehr Shah before this occurrence."
He also stated that: "A month before this occurrence my bullock was stolen. I lodged a report against Khair Shah, father of Anwar Shah P.W. And his brother Abbas Shah P.W. They have falsely got me involved in this case."
He further stated that: "I am innocent. Mst. Zubeda was previously betrothed to Abid Shah son of Manzur Shah and since this engagement was broken, Abid Shah was annoyed with Mst. Zubeda and her family."
9. We have heard the learned counsel for the appellant as well as the learned State counsel. Before proceeding to consider their contentions, it may be mentioned, at the outset that Safa Jang with which Akbar Shah appellant is said to have been armed, was not recovered, while the recoveries of grins P.14 and P.15, knife P.16 and hatchet P.17 are of no value because out of the persons, who are said to have carried them, Ghulam Sangrana has not been tried while the others have been acquitted. , Moreover, the learned trial Judge has found the motive, as stated by Hassan Shah, to be false, but he observed that `the falsification of the motive does not ipso facto disprove the occurrence'. He found that the case against Gaman, Lashkar, Akram and Hasan Ali co-accused was doubtful and, therefore. Acquitted them. He, however, believed the evidence of the eye-witnesses with regard to Akbar Shah appellant, mainly on the ground that since they had no enmity against the appellant, they had no reason to involve him falsely and that, as he was related to them, they could identify him in spite of the fact that it was dark at the time of occurrence.
10. As the learned trial Court has disbelieved the motive and the recoveries and the learned State counsel has not challenged his findings on these points we need not consider whether the motive and the recoveries stand proved from the evidence on the record. We, however, propose to consider the statements of the witnesses with regard to the motive with a view to determine the effect of its (motive's) falsehood on their veracity. In the absence of the proof of the recoveries and the motive, all that is left to be determined is whether the testimony of the eye-witnesses, which has not been relied upon with regard to the four acquitted accused, can, by itself, be deemed sufficient for maintaining the conviction of the appellant.
11. We have carefully gone through their statements with the help of the learned defence counsel.
No doubt all of them sustained injuries during the incident and their presence at the spot cannot, therefore, be denied, but the question that arises is as to whether or not the), were able to see and identify the assailants.
We notice that their testimony is replete with material contradictions. As a result it would not be safe to place implicit reliance on its without any independent and positive corroboration. Moreover, there are glaring flaws in the prosecution story as narrated by them, which render is extremely doubtful, it would be recalled that the occurrence is said to have taken place in the house of Hassan Shah, in village Goinda, at 11 p.m. A number of gunshots were fired and hue and cry was admittedly raised. Yet, strangely enough, no one turned up from the neighbouring houses. As a matter of fact not a single person is said to have arrived from village Goinda before Barkat Ali P.W.22 arrived, all the way from village Bhola Shah, which is situated at a distance of about 1/2 mile.
"Barkat inquired from all of us individually as to how the occurrence had taken place... I had told Barkat that Akbar had a Safa Jang with him and that Ghulam Sangrana was armed with a gun and that Ghulam Sangrana fired at us and injured all of us."
Anwar Shah P.W. Also stated that he had told Barkat Ali P.W. That Akbar Shah appellant and Ghulam Sangrana accused had committed the offence. Strangely enough, however, the F.I.R. (Exh.
P.O.) lodged by Barkat Ali P.W., does not contain the name of any of the accused persons. This witness has appeared as P.W.22 and stated, inter alia. That: ... I made the F.I.R. Correctly according to my knowledge. 1 did not mention the name of any accused in the F.I.R."
The prosecution did not care to get the matter clarified further and no attempt was made by it to show that he had in fact been told the names, but forgot to mention them to the S.H.O. As a result we find considerable force in the contention of the learned defence counsel that none of the eye- witnesses had told him as to who the assailants were, because they had themselves not been able to identify them. This view is further strengthened by the admission made by Hassan Shah P.W.
That to police joined some other persons, namely, Manzur Shah and others, as accused persons, in the investigation. These facts raise a serious doubt as to the identity of the assailants and the benefit of this doubt must go to the accused, including the appellant.
As already mentioned no motive is given in the F.I.R. But at the trial Hassan Shah P.W. Furnished a motive for the attack by saying that he had four daughters. Akbar Shah appellant asked him for the hand of Mst. Zubeda Bibi for Jewan Shah but Hassan Shah P.W. Did not agree as Jewan Shah was a Badmash and was confined in jail, and three or four days prior to the occurrence he married his daughter Mst. Zubeda Bibi to Anwar Shah P.W. Akbar Shah appellant is said to have resented this and it is this resentment that led him to raid Hassan Shah's house with his companions and abduct his daughter. The learned trial Judge has however, found the motive to be false. On considering the testimony with regard to motive we find ourselves in entire agreement with him. It is admitted by Hassan Shah P.W. That the aforementioned Jewan Shah had murdered the mother of Akbar Shah appellant and had been convicted and sentenced for the same and was till undergoing the sentence in the jail. Apart from this. Kalev Shah, the real brother of Jewan Shah, had been married to Mst. Naziran, the sister of Akbar Shah appellant but he (Kaley Shah) had divorced her. Under these circumstances it is highly improbable that Akbar Shah appellant would be so anxious to look for a were for Jewan Shah and arrange his marriage. It is equally improbable that on Hassan Shah's refusal to give his daughter in marriage to Jewan Shah, Akbar Shah appellant would be so enraged as to storm his house with five others and ask his companions to fire at the inmates indiscriminately in order to abduct Mst. Zubeda Bibi for his enemy Jewan Shah.
Though we agree with the learned trial Judge that the motive put forward by Hassan Shah P.W. Is entirely false, yet we do not agree with his observation that the falsification of the motive does not ipso facto disprove the occurrence. It is true that the mere fact that the prosecution has not been able in any particular case to prove the motive, is not by itself fatal to its case However, where the prosecution sets up a definite motive through some witnesses and the same is found to be utterly false, it certainly affects the veracity of those witnesses and their words can no longer be relied upon with implicit faith. In Hakim Ali v The State 1971 SCMR 42>z, although the facts were slightly different inasmuch as in that case the Court held the defence version to be more probable than the prosecution version, the Supreme Court of Pakistan made the following observations with regard to the effect of the failure of the prosecution to establish the motive set up by it: "It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence."
The result is that Hassan Shah P.W.16, who deposed with regard to the motive, stands falsified to that extent and his testimony as to the occurrence would need strong and independent corroboration before it can be accepted.
12. There are other flaws in the testimony of the prosecution witnesses, which reflect on their veracity. Before pointing them out it would be useful to mention here the details of the actual incident as given by the prosecution witnesses at the trial. This is what Hasan Shah P.W.16, the main witness in the case, has stated: "About four years ago on the night of occurrence at about 11 p.m. Akbar, Ghulam Sangrana, Lashkar, Gama, Hasan Mirasi and six other persons came to our house. Hassan Mirasi remained outside the house and the five other accused entered my house by scaling over the wall of the house. Akbar, who was holding Safa Jang, asked Ghulam Sangrana to fire from his gun. Ghulam Sangarana fired at me. Mehtab deceased on hearing the alarm came outside. Ghulam Sangrana fired at him also twice on the Lalkara of Akbar accused. Anwar Shah was aroused by the accused. Then said that Anwar Shah awoke on hearing the alarm. When he was coming out of the kitchen, he as fired at by Ghulam Sargana which hit him. Then the accused broke open the door of the room in which my were and daughter were sleeping. Akbar and Lashkar accused beat my were and daughter and took away Mst. Zubeda Bibi dragging her. l was later on medically examined."
This story was repeated by other witnesses,, giving more or less the same details. It will be noticed that according to the above-noted version given by Hassan Shah P.W. Akbar Shah appellant is said to have been armed with Safa Jang. The only part attributed to him is that he shouted Lalkaras at which Ghulam Sangrana fired the shots and further that he caused an injury with the Safa Jang to Mst. Ghulam Fatima P.W.18. During the cross-examination, however, Hassan Shah P.W. Was confronted with his earliest statement made under section 161, Cr. P.C. And it was found that he had not stated so before the police (Ref: P.98 lines 38 to 42 of the paper book). He also stated at the trial that Ghulam Sangrana was known to him previously because he used to come with Akbar Shah appellant. Before the Committing Magistrate he had stated that he did not know Ghulam Sangrana co-accused prior to the occurrence although at the trial he denied having said so. These contradictions throw a serious doubt on the statement of this witness with regard to the role attributed by him to the appellant at the trial.
Similarly, Anwar Shah P.W.17 was also confronted with his statement under section 161, Cr.P.C. And it was found that he had not mentioned before the police that it was at the Lalkaras of Akbar Shah appellant that Ghulam Sangrana had fired at the deceased and the P.Ws. He had also not stated before the police that Akbar Shah appellant was armed with Safa Jang. He had in fact stated at that stage that he had woken up only when his sister and mother were being dragged by the accused. Moreover, he had also not stated before the police that Akbar Shah appellant had caused any injury to the womenfolk. This excludes the only overt acts attributed to the appellant. It is also worth mentioning that Anwar Shah P.W. 17 stated during his cross-examination that when he saw the accused persons inside the house, they had `girded up their loins and covered their faces'.
This casts a serious doubt on the identity of the accused persons.
Mst. Ghulam Fatima P.W.10 was also cross-examined on these points and it was found that she too had not stated before the police that it was on the Lalkaras of Akbar Shah appellant that Ghulam Sangrana had fired at Hassan Shah, etc., or that the appellant was armed with a Safa Jang. It may also be mentioned that in her examination-in-chief Mst. Ghulam Fatima P.W. Has not stated that Akbar Shah appellant had beaten her, but attributed the beating to Gaman co-accused only.
13. From the above-noted discussion it is obvious that at the initial stage the prosecution case against Akbar Shah appellant was not what the witnesses subsequently attributed to him at the trial. In their statements before the police they had neither alleged that he was armed with any weapon nor that he had injured anyone with the same. Nor had they attributed to him any Lalkara inciting Ghulam Sangrana co-accused to fire at the deceased and the two injured P.Ws. These changes introduced by them at the trial also show that the eye-witnesses have no respect for truth and are capable of altering their version as and who it suits them. No doubt they are natural witnesses as they lived in the house in which the incident took place but that in itself is not sufficient to show that they are also truthful witnesses. In view of what has been said above, we feel that strong and independent corroboration of their testimony qua the appellant is required before it can be relied upon to maintain his conviction. Unfortunately for the prosecution, however, there is no such corroborative evidence available on the record. The motive has been disbelieved as false which as already observed, seriously reflects on the veracity of the witnesses. The medical evidence cannot be said to constitute any corroboration qua the appellant, firstly, because the P.W s, had not stated before the police that he was armed with a Safa Jang, and secondly, because Mst. Ghulam Fatima P.W. Herself did not attribute (in her examination-in-chief) any beating to Akbar Shah appellant. Moreover, no incriminating weapon was recovered at his instance. Only two circumstances were pointed out by the learned State counsel which, according to him, could be used as corroborative evidence in support of the ocular testimony qua the appellant. c First of these is that the appellant was arrested on 31-7-1967 i.e. About five months after the occurrence.
He argued that the appellant had absconded and that this fact should be taken as a corroborative circumstance against him. We cannot agree with this submission. In the first place ascendance is not always an indication of guilt and cannot therefore, invariably be taken to be a circumstance corroborating the ocular testimony. Besides, in the present case we notice that this circumstance (of his alleged ascendance) was not put to him while examining him under section 342, Cr. P.C.
With the result that the same cannot be taken into consideration against him, because had he been given an opportunity, he might have given a very plausible explanation for the same.
The second piece of evidence stressed upon by the learned State counsel as constituting corroborative evidence was that relating to the moulds of the foot marks of the appellant, taken by Fateh Sher Tracker P.W.15 and his subsequent identification of the appellant's footprints during the track parade. Four moulds of footprints,, of different persons were taken by the Tracker on 28-2- 1967 from a place `outside' the gate of the house. Akbar Shah appellant was arrested on 31-7-1967 and a track parade was held by Manzur Hussain, Magistrate (P.W.24) on 12-10-1967,, in which, according to the Magistrate, Fateh Sher Tracker correctly identified the tracks of Akbar Shah appellant and Gaman co-accused from the tracks of a number of other persons. There are, however, a number of flaws in this piece of evidence. In the first place, the moulds were taken by Fateh Sher P.W.15 from `outside' the house. Secondly it is not known as to where they were kept for the next eight months, till October, 1967. The only two witnesses who have deposed about having kept the sealed parcels containing articles recovered during the investigation are Mukhtar Ahmad A.S.I. (P.W.5) and Masood Ahmad Qureshi (P.W.3). The parcels received by them were handled by Lai Khan Constable P.W.3. From a reading of the statement of Lai Khan P.W., it becomes evident that the parcels related to a gun and some other articles stained with blood, which had to be taken to the Fire Arms Expert and the Chemical Examiner respectively. Nothing is mentioned by any P.W.
About the safe `custody of the moulds'. Moreover, there is nothing on the record to show that these moulds were got compared with the foot marks made by Akbar Shah appellant at track parade.
Apart from this the learned Magistrate, who supervised the parade, stated that he did not remember as to whether, at the time of the parade, the accused were barefooted or were wearing their shoes. Under these circumstances the track evidence, which in its very nature is weakest kind of evidence, cannot be safely relied upon in the present case for corroborating the doubtful testimony of the eye-witnesses.
14. The result of the above discussion is that although in this unfortunate incident some persons attacked Hassan Shah and others in their own house, killing one person and injuring four others and one girl was forcibly abducted, yet !,, from the circumstances as appearing on the record, we are convinced that the victims (i.e. The P.Ws.) were not able to identify the assailants and most probably named the accused on the basis of suspicion which, however strong, cannot take the place of proof. We, feel that the statements of the prosecution witnesses in this case are not such as can be believed without independent corroboration. The same not being available, we cannot rely on their testimony to uphold the conviction of the appellant. Consequently, we accept the appeal and acquit the appellant. He should be set at liberty forthwith unless he is wanted in some other case. The death sentence awarded to the appellant is not confirmed.
This disposes of the appeal as well as the reference.