The appellant Habibullah son of Mohammad Yousif was tried by the learned Sessions Judge Jacobabad for an offence under section 302, P.P.C. Who by his judgment dated 20th March, 1991 convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life and fine of Rs.10,000 in default of payment of fine to undergo for one year R.I. The appellant was also directed to pay compensation of Rs.20,000 under section 544-A, Cr.P.C. And in default of the same to undergo R.I. For six months more. By the same judgment co-accused Ghulam Muhammad and Younis were acquitted by the trial Court. The appellant has now challenged his conviction and sentences under this appeal.
2. The case of the prosecution is that the complainant Abdul Khair alongwith his two sons namely, Muhammad Pannah and Bashir Khan went to Thull with some private work. This was on 6th September, 1985 during day time. After finishing their work they wanted to go back to their village and in this regard they boarded one Datsun Pickup. Alongwith them Abdul Qadir, a cousin of the complainant, had also accompanied them. All of them reached the town of Gari Hassan where they got down from the said Datsun Pickup and awaited the arrival of bus for taking them to their village. All of them were sitting on a Bench, situated outside the Hotel of Mullan. It is alleged that at about 2-00 p.m. On that day the accused Habibullah armed with a pistol while co-accused Younis and Ghulam Muhammad armed with hatchets came there. On arrival it is alleged that accused Habibullah fired with pistol which hit Bashir Khan on his back who received injury and fell down. The other two accused gave Hakals to keep the witnesses away. The motive of this crime is said to be matrimonial dispute. The complainant was required to give the hand of his daughter to appellant Habibullah and in return the accused party was to give the hand of one of their women for the deceased, but the complainant had backed out from this proposal, which made annoyed the accused party on account of it this incident had taken place. Thereafter the complainant went to Police Post Gari Hassan where he lodged the report which was recorded by A.S.I. Abdul Hakim.
3. On the basis of this F.I.R. Exh.10 the investigation was started. The said A.S.I. Proceeded to the place of Wardat where he inspected the place of Wardat and prepared, Mashirnama Exh.14, which was prepared in the presence of witnesses Muhammad Suleman and Mohammad Pannah. The dead body of deceased Bashir Khan was available at the spot. He inspected the dead body, prepared inquest report. Thereafter he sent the dead body to the hospital through Head Constable Mohammad Tayeb-for post-mortem examination and report. He also recorded statements of the witnesses and on 1-10-1985 ~he arrested accused Younis who also produced a hatchet which was secured under Mashirnama. The other two co-accused namely Habibullah and Ghulam Mohammad were not arrested by him but they were arrested by P.W. Ahmed Din on 30-6-1986 under a Mashirnama Exh.20. After completion of the investigation the challan was submitted in the Court and the trial was conducted by the learned Sessions Judge, Jacobabad who acquitted the accused Ghulam Mohammad and Younis while the appellant Habibullah was convicted by him as already mentioned hereinabove.
4. At the trial the prosecution examined eye-witnesses namely, F.W. Abdul Khair, who is also complainant, P.W.2 Abdul Kadir and P.W.3 Mohammad Pannah. Prosecution also examined P.W.4 Muhammad Suleman, who is the Mashir of Exhs.14, 15 and 16, P.W.5 Laung Bhatti, who, is also a Mashir and P.W.6 Ahmed Din, who prepared Mashirnama Exh.20 regarding the arrest of appellant and co-accused Ghulam Mohammad. Medical evidence comprises of P.W.7 Dr. Ghulam Muhammad, who conducted the post-mortem examination on the dead body of the Bashir Khan, the report whereof is Exh.22. Prosecution then examined P.W.9 Head Constable Mohammad Hayat and P.W.11 A.S.I. Abdul Hakim who is the Investigating Officer. The place of Wardat was also examined through the Tapedar P.W.10 Rehmatullah who prepared sketch of Wardat as Exh. 27.
Thereafter statements of all the accused were recorded under section 342, Cr.P.C. As well as 340(2), Cr.P.C. All the accused denied the allegations while appellant Habibullah took up the plea that at the time of incident he was in custody in a criminal case in Baluchistan. Appellant Habibullah in his statement under section 340(2), Cr.P.C. Exh.39, while denying prosecution allegations produced certified copy of a certificate issued by the Magistrate of Tuftan showing that he was in custody and was released on bail on 9September, 1985. These documents are Exhs.40 and 41 respectively.
In addition they have also examined 4 defence witnesses. D.W.1 is Behram Khan, D.W. 2 is Wali Mohammad, D.W. 3 is Mehran and D.W. 4 is Abdul Wahid. All these D.Ws were also examined by the police during the course of investigation, therefore, despite the fact that they have been examined by the defence their status is still of prosecution witnesses. Out of the 4 witnesses D.W. No.4 Abdul Wahid is the Naib-Tehsildar (Magistrate) who verified and proved the contents of Exhs.40 and 41 respectively.
5. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Shaikh Azizur Rehman, Advocate for the A.-G. For State. The latter has not supported the conviction and sentence of the appellant on the ground that on the same evidence co-accused Ghulam Mohammad and Younis have been acquitted and the appellant could not have been convicted without independent corroboration. In the present case there was no corroboration to support the testimony of the eye- witnesses.
6. The learned counsel for the appellant has also raised same point and he submits that there was not even an iota of an evidence which could corroborate the evidence of the eye-witnesses and therefore the trial Court should have acquitted the appellant also. In addition he also points out that the 3 eye-witnesses are not only closely related but they have made improvements and their version is contradictory to other circumstances on the record. He further submits that it had cometh in evidence of all the 3 witnesses that there were shops, hotel and a mosque within the distance of 20 paces from the place of Wardat yet there is no independent witness examined in this case. He has further argued that the appellant was not required to prove his case beyond all doubt in a criminal matter and all that the accused has to do is to show reasonable possibility of his defence being true. In this regard he refers to Exhs.40 and 41 which indicate that from 6th September 1985 till 9th September 1985 appellant Habibullah was in custody in criminal case at Baluchistan. This aspect of the matter was proved through D.W.3 Abdul Wahid.
7. I have carefully considered the arguments advanced by the parties and with the assistance of the learned counsel I have also gone through the entire evidence on record. All the materials and circumstances, contradiction and improbability have been shown and pointed out from the evidence of the witnesses while going through the evidence with the assistance of the counsel. In order to appreciate the inherent worth of the evidence on record, I may refer to the evidence brought on record by the prosecution.
8. The F.I.R. In this case was lodged by P.W.1 Abdul Khair. In the F.I.R. The complainant has stated that he alongwith his sons Bashir Khan and Mohammad Pannah had gone to Thul for some work where their relative P.W.2 Abdul Kadir also met them. They came in a Datsun Pickup to Gari Hassan Town where they got down and were waiting for the arrival of the bus. At that time they were sitting on a Bench in front of a hotel of Mullan which was closed at that time for Jumma Prayer. It is alleged that the appellant armed with pistol alongwith co-accused Younis and Ghulam Mohammad who were armed with hatchets came there. Appellant Habibullah fired shot from his .12 bore pistol which hit Bashir Khan on his back who fell down. The accused persons thereafter ran away while Bashir Khan died at the spot. The motive given is that the complainant had promised the hand of his daughter Mst. Sanhari in marriage to Habibullah. But the complainant backed out and got his daughter married to one Mohammad Malook. This had annoyed the accused, on account of which they have killed the complainant's son. The complainant was examined in the Court. His evidence is Exh.9. He has narrated the same facts as given in the F.I.R. And has specifically stated that while they were sitting on the Bench all of a sudden they heard a fire-arm report and he saw three persons namely Habibullah, Younis and Ghulam Mohammad, out of them Habibullah had .12 bore pistol which he fired at Bashir Khan. He further states that accused Habibullah tried to reload his pistol and in doing so he threw empty at the Wardat. Thereafter the complainant leaving the other witnesses with the dead body of his son had gone to lodge report. Police came with him to the place of Wardat, he had shown to the police the dead body of his son Bashir Khan which was lying in a pool of blood.
The police secured empty cartridge. He further states that he had promised to give the hand of his daughter to one Mehran grandfather of accused Younis and in return he was to get the hand of a girl for his son Bashir Khan. The accused went back out of this arrangement and in retaliation the complainant gave the hand of his daughter to one Mohammad Malook. On account of this the accused were displeased and they have committed the murder of his son Bashir Khan.
The next eye-witness examined by the prosecution is P.W.2 Abdul Kadir. His evidence appears as Exh.11. He has fully corroborated the statement of the complainant and has confirmed that he alongwith the, complainant party had come to Gari Hassan Town in a Datsun Pickup, they were waiting at the bus stand outside the hotel of Mullan and while they were sitting on the Bench all of a sudden there was a fire-arm report and then he saw the three accused persons out of them Habibullah had a .12 bore pistol, according to him he fired which hit Bashir Khan at his back who fell down on the ground. Bashir Khan died at the spot. Thereafter the complainant went to lodge the report. Ire further confirms that there was to be an exchange of marriage but later on differences arose and these marriages did not materialise. The accused was displeased and therefore this incident had taken place.
Third witness examined by the prosecution is Mohammad Pannah, his evidence is Exh.12. He is the son of the complainant and he also confirms the version given by the complainant. He also admits that they were sitting on a Bench waiting for bus when the three accused came there, out of them accused Habibullah had .12 bore pistol from which he fired at his brother Bashir Khan, which hit him in his back side. He also confirms that accused Habibullah reloaded his pistol at the spot. He further states that this incident had taken place due to matrimonial affairs between them and the accused. He states that his sister was promised in marriage to the accused or their relatives but the exchange marriage did not take place which annoyed the accused, on account of which they killed his brother. Apart from these eye-witnesses the prosecution examined Mashir P.W.4 Muhammad Suleman, whose evidence is Exh.13. This witness states that he was made Mashir of Wardat in this case, the place of Wardat was inspected by the police from where blood and one empty cartridge was secured. Police had prepared such Mashirnama, which is Exh.14, which bears his signatures. The inquest report was also conducted in his presence, which is Exh.15. He denied that he did not act as Mashir regarding the arrest of Younis but police had obtained his left thumb- impression on the Mashirnama of Wardat. He also did not see recovery of hatchet and states that his thumb-impression was not obtained on the recovery memo. Since this witness had not supported the prosecution case regarding the arrest of accused Younis and recovery of hatchet, therefore, the prosecution examined P.W.5 Laung Bhatti, whose evidence is Exh.17. This witness has given go-by to prosecution case. He was declared hostile and cross-examined by A.P.P.
P.W. Ahmed Din has been examined in respect of arrest of accused Ghulam Mohammad and Habibullah. He has stated that he was posted at City Police Station and while he was on duty he received spy information---s about availability of the accused who were wanted in this case and therefore he arrested both the accused.
P.W.7 Dr. Ghulam Muhammad, whose evidence is Exh.21 has deposed that he received the dead body of deceased Bashir Khan which was referred by S.H.O Police Station Thul. He conducted the post-mortem examination on the deceased and found one lacerated punctured type of wound at the back of the deceased. He has opined that the death of the deceased has occurred due to above injuries caused by fire-arm. He has produced the post-mortem report.
P.W.10 Rahmatullah is a Tapedar, his evidence is Exh.26. He had examined the place of Wardat on the pointation of the complainant, who had pointed out to him the different places where the accused witnesses etc. Were standing at the time of Wardat. He has produced the sketch as Exh.27 of Wardat.
Finally the Investigating Officer P.W.11 Abdul Hakim was examined, his evidence is Exh.28. This witness confirms that on 6-9-1985 he was posted as A.S.I. At Police Post Gari Hassan, on that day complainant Abdul Khair had come to lodge the report which was recorded by him and the same is Exh.10.He was taken to the place of Wardat, there he inspected the place of Wardat and prepared Mashirnama Exh.14. He also prepared inquest report, he recorded the statements of the witnesses, arrested the accused Younis and finally the challan was submitted. He has produced the chemical report as Exh.30. It is in respect of earth collected from the place of Wardat and the chemical analyser's result is in positive.
Besides these witnesses prosecution had also examined some other witnesses, their evidence have no bearing on the case.
9. On careful scrutiny .Of the evidence on record I find that the complainant has not only tried to improve the prosecution case while deposing in the case, but he has also made an effort to change the motive. In the F.I.R: it is mentioned that the complainant had promised to give the hand of his daughter Sunhari to accused Habibullah. In his cross-examination he says that he has no daughter by the name of Sunhari and denies to have stated the same in the F.I.R. In his deposition in Court he has stated that he had promised to give the hand of his daughter to one Mehran grandfather of accused Younis and in return he was to get the hand of one girl for his son Bashir Khan. This would show that the motive has been changed. Regarding the motive it is now a settled principle of law that if one a motive is set up and if it is found to be false then the evidence of the eye-witnesses is to be scrutinised with great care and caution. In this regard "I am supported by a case reported in PLD 1969 SC 127.
On strict scrutiny of the evidence of the eye-witnesses it will appear that the complainant for -the .
First time introduced a new fact in his examination-in-chief by saying that accused Habibullah tried to reload his pistol at the spot and in doing so he threw empty at the place of Wardat. This fact was not mentioned in the F.I.R. It will further appear that since this fact was expressed by the complainant, therefore, his son P.W.3 Mohammad Pannah-also comes out with the same version.
The complainant has admitted that there were some shops in the North of the hotel at a distance of few paces. As compared to the complainant and his son P.W.2 Abdul Kadir is completely silent regarding the reloading of the pistol by Habibullah. This witness has also stated that there were other hotels also near the hotel where they were sitting. All of the three eye-witnesses are unanimous on the point that they were sitting on Bench outside the hotel of Mullan and the accused had come from the back side. The place of Wardat was shown to the Tapedar P.W.10 Rehamatullah. The Tapedar examined the place on the specific pointation of the complainant. The complainant had pointed out the place where the accused were said to be standing and had fired at the deceased. This place was 27 feet away from the place where the dead body had fallen.
Moreover according to the complainant it has been pointed out to the Tapedar that the complainant and the witnesses Mohammad Pannah and. Abdul Kadir were standing 6 feet away from the deceased. It has further been pointed out in this case, report of the Tapedar as well as his evidence that there was a mosque, shops and many houses at the place of Wardat. This will go to show that independent witnesses were 'available but they were not examined in this case. In this regard even the Investigating Officer P.W.11 A.S.I. Abdul Hakim admitted that he did not call any person from the village to act as Mashir of Wardat. The report of the Tapedar coupled with medical evidence belies the version as given by the eye-- witnesses. In this regard P.W.7 Dr. Ghulam Mohammad has deposed that there was only one injury on the back of deceased. This injury was a result of the shot entering en mass in the body of deceased and in this regard the Medical Officer has admitted in his cross-examination that the range of firing will be within 6 feet.
This has been stated so because when a shot is fired from a .12 bore pistol which uses cartridge, then the pellets which emerge from cartridge travel en mass for a very short distance and thereafter these pellets start spreading resulting in multiple injuries. The greater the distance the greater will be the spread of pellets. In any case beyond 15 feet there is bound to be spread of pellets. In the present case on the complainant's showing the accused are said to be standing at a distance of 27 feet from where they had fired. As. Such the injury detected on the person of deceased Bashir Khan could not have been caused by a .12 bore pistol from a distance of 27 feet.
Obviously this will go to show that the complainant was not aware where the accused persons were standing or where the deceased had received the injuries.
10. The version of the three eye-witnesses is further belied by a strong circumstance appearing in this case. In this regard reference is made to Exhs.40 and 41 which have been. Produced by the appellant Habibullah. Exh.40 is certificate issued by the Magistrate of Tuftan, Baluchistan. This certificate shows that accused Habibullah was arrested on 6th September to 9September, 1985: It is signed by the Magistrate and the seal of the Court has also been affixed. Exh. 41 is the surety bond of the accused Habibullah. It indicates that accused Habibullah was released on bail by the Magistrate of Tuftan, Baluchistan. It is signed by the Magistrate on 9-9-1985. It also bears the signatures of the appellant and two witnesses. The contents of both these documents have also been proved through the evidence of D.W. 4 Abdul Wahid, who was actually prosecution witness.th This witness has categorically stated that accused Habibullah was in the custody of the police from 6-9-1985 to 9-9-1985 and that he was released on bail on 9-9-1985. This witness also identified the accused Habibullah in Court. He was cross-examined by D.P.P. And both these documents Exhs.40 and 41 were issued in the official course of business but there was no suggestion that the same were bogus. The evidence of D.W.4 Abdul Wahid coupled with these documents, Exhs.40 and 41 will clearly go to show that appellant Habibullah was not present at the place of Wardat at the time of incident. This defence version of alibi appears to be reasonably plausible and there is no reason to disbelieve the same. This version also belies the evidence of the eye-witnesses. No reason whatsoever has come on the record .To explain why independent witnesses were not examined in this case. According to P.W.3 Mohammad Pannah who says that many other persons were sitting and waiting for bus at the hotel of Mullan. He also admits that other shops near the hotel of Mullan were also there, this hotel was situated in Gari Hassan Town, which is a big place. But as already stated no independent witness was examined nor any effort was made in that regard.
11. Lastly, it is now a well-established principle of law that in a given case where more than one accused are being tried jointly and the evidence is common against these accused and if the trial Court acquits one of them then the other accused can be convicted only if there is some independent corroboration.
In the present case the learned trial Judge has placed reliance on the ocular evidence in the following words:- "As such, I place implicit faith on the version given by P.W. Abdul Qadir which has further been corroborated by P.W. Muhammad Pannah on the material particulars of the case.
As such, I, find genuine ring of truth in the statements of complainant Abul Khair, P.Ws Mohammad Pannah and Abdul Qadir.
The presence of all the three accused at Wardat at the relevant time stands established."
12. From the above excerpts it will appear that the learned trial Judge has not only placed implicit reliance on the evidence of the eye-witnesses but he has come to the conclusion that all the three accused were definitely present at the Wardat. In this view of the matter the learned trial Judge has acquitted accused Ghulam Mohammad and Younis on the ground that they have neither caused any injury to the deceased or any one else but they were only present at the spot and out of abundant caution benefit of doubt was given to the two accused who were accordingly acquitted. In other words .It means that the evidence of the eye-witnesses has been disbelieved so far as the two accused are concerned and therefore if the same evidence is to be relied upon to convict the accused Habibullah then corroboration was necessary. In the absence of corroboratory evidence the case of the appellant Habibullah would also lie on the same footing. Be that as it may in the present case there is no corroboratory circumstance at all and therefore the accused Habibullah cannot be convicted in this case. In this regard reliance is placed on the case reported in 1982 SCMR 1049, the relevant portion is at page 1051 (A). Again in another case reported in 1982 SCMR 162, the relevant portion appearing at page 165 at placitum (C); (D) and (E).
13. The above discussion and the analysis of the evidence clearly indicates that not only appellant Habibullah was entitled for acquittal on the legal plane but he had also prima facie proved his innocence through plea of alibi and therefore I am of the considered view that the case of the present appellant Habibullah is not free from doubt and accordingly I give the benefit of doubt to appellant Habibullah and acquit him of the charges levelled against him. The conviction and sentence of the appellant are hereby set aside, he is to be released, forthwith if not required in any other case.
N.H.Q./H-322/K