Appellant Khurram was tried alongwith Abdul Ghani and Bangio by learned Ist Additional Sessions Judge, Sukkur, for the offence under section 302/307/34, P.P.C., who found all of them guilty for the said offence and sentenced each of them to imprisonment for life and to pay a fine of Rs.20,000 or in default to suffer R.I. For one year for the offence under section 302/34, P.P.C. Rs.10,000 out of fine, if recovered from each of the three convicts were ordered to be paid to legal heirs of deceased Noor Muhammad. All the accused were also sentenced to suffer R.I. For seven years and to pay a fine of Rs.10,000 each or in default to suffer R.I. For six months for the offence under section 307/34, P.P.C.
Rs.5,000 out of fine, if recovered from each of the convicts were ordered to be paid to injured Mst.
Lekhan and Rustam. The substantive sentences were to run concurrently. The benefit of section 382-B, Cr.P.C. Was also extended to them. Out of the three convicts, two, namely, Abdul Ghani and Bangio absconded immediately after the pronouncement of judgment. Appellant Khurram who was taken into custody has challenged his conviction and sentence through this appeal filed by Mr. Azizullah Shaikh, Advocate.
2. Deceased Noor Muhammad and one Chakar, husband of P.W. Mst. Lekhan had taken agricultural land on lease from one Allah Bux. They had raised cotton crop on this land and in order to look after the cultivation deceased Noor Muhammad had shifted to this land about one week prior to this occurrence, where he lived in a hut. Mst. Lekhan wife of Chakar also shifted to this but where she resided with her children. It is alleged that the appellant and co-accused who are related to Chakar, husband of Mst. Lekhan suspected illicit intimacy between deceased Noor Muhammad and Mst. Lekhan, which suspicion ultimately culminated into this unfortunate incident. On 14-11-1981 complainant Misri and P.W. Muhammad Ibrahim had gone to deceased Noor Muhammad in the evening time to discuss some matrimonial affair and since it became late both of them stayed in the same but where deceased Noor Muhammad and Mst. Lekhan resided with her children. All of them were sleeping on separate cots when at about mid-night time they woke up on barking of dogs and found six persons present in the hut, out of them three were identified on the light of lantern to be Abdul Ghani, Bangio and Khurram, who were armed with guns, while the rest who were armed with hatchets remained unidentified. It is alleged that Abdul Ghani (since absconding) fired at deceased Noor Muhammad followed by Bangio (since absconding) and appellant Khurram, who fired at Mst. Lekhan. P.W. Rustam son of Mst. Lekhan who was sleeping outside near sheep grappled with Abdul Ghani, whereupon he was fired at by Bangio. The culprits then took to their heels. Noor Muhammad died on the spot, while Mst. Lekhan and Rustam sustained gunshot wounds. Complainant Misri waited at the wardat during night time. On the same day at 9-15 a.m.
He went to Pano Akil Police Station, where he lodged F.I.R. Mst. Lekhan and Rustam who were brought at the police station were referred to M.O., Taluka Hospital, Pano Akil for examination and treatment. Abdul Razak A.S.I. Then repaired to the place of incident which was inspected by him in presence of Mashirs Rahim Bux and Jaro. The dead body of Noor Muhammad, which was lying there, was then despatched to M.O., Taluka Hospital, Pano Akil for post-mortem examination. All the three accused were then arrested. During the course of investigation accused Abdul Ghani and Bangio (since absconding) produced their respective guns which were seized and sealed on the spot. Both these guns were sent to Ballistic expert alongwith the empties recovered from the place of wardat who gave a positive report. After completing the investigation all the three accused were sent up.
3. At the trial the appellant and co-accused Abdul Ghani and Bangio who absconded after conviction pleaded not guilty and wanted to be tried. The prosecution then examined Ghullam Nabi, Tapedar (P.W.1), Dr. Inder Dev (P.W.2), complainant Misri (P.W.3), Muhammad Ibrahim (P.W.4), Mst. Lekhan (P.W.5), Rustam (P.W.6), Jaro (P.W.7), Niaz Ahmad P.C. (P.W.8) and Abdul Razak A.S.I.
(P.W.9).
4. The appellant met the charge by a denial professing ignorance. He has alleged enmity with prosecution witnesses over a murder case in which co---accused Abdul Ghani and Siddique, his (appellant) sister's son were tried and acquitted. The appellant did not step into the witness box. He also led no defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant and co-accused Abdul Ghani and Bangio guilty for the offence with which they were charged and convicted them accordingly.
6. I have heard Mr. Azizullah Shaikh, learned counsel for the appellant and Mr. Shoukat H. Zubedi, learned AA.-G. For the State. The latter has not supported the conviction of the appellant by stating that the case against him is not free from doubt.
7. The evidence against the appellant was two-fold. Firstly there was the evidence of four eye- witnesses, namely, complainant Misri (P.W.3), Muhammad Ibrahim (P.W.4), Mst. Lekhan (P.W.5), and Rustam (P.W.6). Secondly, there was evidence of motive furnished by complainant Misri (P.W.3); Mst. Lekhan (P W.5) and Rustam (P.W.6).
8. The fact that deceased Noor Muhammad died an unnatural death after receiving fire-arm injuries is not in dispute. Looking to the nature of injuries sustained by him, it is obvious that whoever had caused these injuries to deceased Noor Muhammad has no other intention, but to commit .His murder. Likewise there is no dispute about the factum of injuries on the persons of Mst.
Lekhan (P.W.5) and her son Rustam (P.W.6). Besides the evidence of these witnesses, which I will discuss at the proper time, there is evidence of Dr. Inder Dev (P.W.2) who had conducted the autopsy on the dead body of Noor Muhammad and examined both Mst. Lekhan (P.W.5) and Rustam (P.W.6).
9. Both complainant Misri (P.W.3), who is brother of deceased Noor Muhammad and Muhammad Ibrahim (P.W.4), who is husband of the aunt of deceased Noor Muhammad, at their own showing are chance witnesses. Both of them resided in village Bhoro at a distance of three miles from the place of wardat and happened to be present in the but of deceased Noor Muhammad when this incident took place. According to complainant Misri (P.W.3) both of them had gone to deceased Noor Muhammad to discuss with him the proposal of marriage between the son of Muhammad Ibrahim and daughter of deceased Noor Muhammad, although both of them are minors.
Muhammad Ibrahim (P.W.4), when asked the purpose of his visit to deceased Noor Muhammad came out with the following statement:-- "I had gone to Noor Muhammad with complainant to have a talk for my son's marriage with the daughter of Noor Muhammad .------ Again says that I had not gone to take the daughter of Noor Muhammad for my son, but I had gone to Noor Muhammad to have advice if I should take daughter of Ghullam Nabi, maternal-uncle of Noor Muhammad------.."
10. Both complainant Misri (P.W.3) and Muhammad Ibrahim (P.W.4), have thus contradicted each other on this material point. The delay of about nine hours in lodging F.I.R. When the police station is hardly three miles away from the place of incident is again significant. The presence of these two witnesses at the place of wardat for no obvious reason smacks of a crude attempt to assert their presence. It looks as if the culprits were waiting for their arrival and destiny had arranged that they might be the witnesses of the murder of Noor Muhammad. Since both of them are related to deceased Noor Muhammad, it does not require much of calculation how to multiply 2 by 2.
11. In assessing and evaluating the evidence of eye-witnesses, two important considerations are: (1) whether in the circumstances of the case, it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the scene can be accepted; and (2) whether there is anything inherently improbable or. Unreliable in their evidence. (See Malik's Criminal Trials, 2nd Edition). Applying the above tests to the facts of the present case, it appears to me that the presence of both Misri (P.W.3), and Muhammad Ibrahim (P.W.4) was not possible for the reasons given above and they were set up as eye-witnesses after due consultation. This also explains the abnormal delay in taking recourse to law as this time was apparently consumed to conceal the truth, to exaggerate matters and to drag the names of as many suspects as possible.
12. Admittedly both Mst. Lekhan (P.W.5), and Rustam (P.W.6), are injured persons and their presence at the relevant time can hardly be suspected. The essential question, however, is whether both Mst.
Lekhan (P.W.5) and Rustam (P.W.6) had an opportunity to identify the assailants and whether there was sufficient light to enable them to see the faces of the assailants who had selected mid-night time, obviously with a view to conceal their identity. The evidence as to identification of each accused must be sufficient to exclude with reasonable certainty the possibility of mistake. In this particular case the lantern was hanging on a pole, a bit away from the cots of Mst. Lekhan (P.W.5) and Rustam (P.W.6). In the case of Todo v. The State, reported in PLD 1961 Karachi 707, a general observation was made about the identification on hurricane lamp, which for the sake of convenience is reproduced below:-- "Generally, people in the Muffasil keep the lamp burning but usually the wick is kept low. The idea of keeping the lamp burning is that it could immediately be made use of in time of emergency. But even if the lamp was actually burning in the shed, it in our opinion, could not have shed sufficient light for the two brothers to identify the culprits:'
13. The identification on a momentary glimpse of assailants in the above circumstances was found doubtful in the case of Thangai alias Rifle alias Abdul Ghafoor v. The State, reported in 1983 P.Cr.L.J.1227. I am conscious of the fact that a ruling in criminal cases governs its-own facts, but the observations made by experienced Judges are useful in appreciating the evidence in somewhat similar circumstances.
14. Besides the inherent weakness in the evidence of both Mst. Lekhatt (P.W.5), and Rustam (P.W.6), the evidence of these witnesses appears to be contradictory. According to Mst. Lekhan (P.W.5), all the three accused who were armed with guns had fired at deceased Noor Muhammad causing his death, She has further testified that accused Bangio and appellant Khurram had fired at her and her son Rustam (P.W.6) and both of them were injured. Rustam (P.W.6) has, however, contradicted his mother Mst. Lekhan (P.W.5), by stating as follows:- "Within my view accused Ghani fired straight shot at deceased Noor Muhammad, which hit on Noor Muhammad. I tried to catch him on which accused Bangio fired straight shot at me which hit on my arm. I fell down. Accused Khurrram fired straight shot on my mother Mst. Lekhan which hit on her hand and left palm."
15. It will be seen that both the above witnesses have contradicted each other on material particulars and it is extremely unwise to accept anything from their lips unless it is fully corroborated by independent witness. No such corroboration is, however, forthcoming against the appellant.
16. I now proceed to examine the evidence of motive. It is the case of the prosecution that the appellant and co-accused Abdul Ghani and Bangio who are related to Chakar, husband of Mst.
Lekhan, suspected her to be in toe with deceased Noor Muhammad and it was for this reason that they took into their heads to kill Karo Kari (adulterers). Admittedly, Chakar, the husband of Mst.
Lekhan is alive. There is also evidence on record to show that Chakar has brothers and other close relatives. It, therefore, does not appeal to reason as to why the appellant and co-accused Abdul Ghani and Bangio whose actual relationship with Chakar is not established, would vindicate the family honour of Chakar. Again if the motive as suggested by the complainant was true, there was no reason for the culprits to have spared Mst. Lekhan (P.W.5), the alleged Kari, when admittedly they were in control of the situation and there was no--body to save Mst. Lekhan from the clutches of the culprits. It was obviously for this reason that Muhammad Ibrahim (P.W.4) stated about the motive in the following words:-- "I do not know as to why the accused persons killed deceased Noor Muhammad and fired at Mst.
Lekhan. The accused only uttered the words in the Landhi that they will kill deceased Noor Muhammad."
17. In criminal cases, proof of motive is not necessary for conviction, butt in estimating probabilities the existence of motive or its absence is a matter of some importance.
18. There is background of enmity between the parties. The evidence of natural witnesses, viz. Mst.
Lekhan (P.W.5) and Rustam (P.W.6), therefore, needed corroboration and it was only for this reason that the learned A.A: G. Has not supported the conviction 6f the appellant, as such evidence is lacking against him.
19. On consideration of the entire evidence as discussed above, I am fully satisfied that the case of the prosecution against the appellant is doubtful in nature. The benefit of doubt is extended to him and he is acquitted from the charge. The appellant who is in custody, be released forthwith, if not required in any other case. In the result the impugned judgment is set aside and the appeal is accepted.
20. By a short order dated 3-2-1992, I had allowed this appeal. This judgment would furnish the detailed reasons.
N.H.Q/K-291/K 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.