By a short order, dated 21-10-1991, 1 had allowed this appeal and ordered acquittal of the appellant of the charge for which he was tried. I now proceed to record the reasons for the same.
2. It may be pointed out that appellant Rehan son of Bugro Nindwani was charged with co- accused Aitbar son of Mevo Nindwani for causing death of one Daim. Although co-accused Aitbar was acquitted of the said charge by the learned trial Court but the appellant was found guilty of the said offence and convicted under section 302, P.P.C. And sentenced Io suffer rigorous imprisonment for life and also to pay a fine of Rs.20,000 and in case of default in payment of the fine, he was further sentenced to undergo rigorous imprisonment for three years: An amount Rs.15,000 was also to be paid by him as compensation to the L.Rs. Of the said deceased.
3. The facts of the case, briefly stated, are that on 28-4-1982 at about noon time, deceased Daim had gone alongwith the complainant to look-after his wheat Dera on his land. On reaching there they saw that a pair of bullocks belonging to co-accused Aitbar Nindwani was grazing in the Dera.
They caught hold of the bullocks and wanted to take them to the cattle pound but when they reached the ploughed land of Hazar Khan, they found appellant Rehan co-accused Aitbar, Ramin and Sanwalo there. The appellant who was a Police constable was armed with his official rifle whereas the rest of the accused were armed with lathis. Co-accused Aitbar then asked Daim to leave the bullocks on which he replied that he would take them to the cattle pound as they had damaged his crop. On this a fight ensued between the accused and deceased Daim. Appellant Rehan after asking his companions to leave the place fired a shot from his rifle at deceased Daim who immediately fell down. The complainant raised cries but he was also threatened by the accused. The incident attracted P.Ws. Abdul Rehman and Tajo to the scene of occurrence who also witnessed the incident. The complainant then leaving P.Ws. Tajo and Abdul Rehman behind left for Police Station Nindwani to lodge a report.
4. The F.I.R. In respect of the incident was recorded at the said Police Station by A.S.I. Imamuddin (P.W.8) who after registering the case started the investigation. The same day the Investigating Officer arrested co-accused Aitbar who had himself appeared at the Police Station, under Mashirnama Exh.19 in presence of Mashirs P.C. Khadim Hussain and P.C. Manzoor Ahmed. The I.O.
Then proceeded to the scene of occurrence alongwith the complainant. The scene of occurrence was situated on the land of Hazar Khan Bijarani. The body of the deceased was lying on a cot at the scene of occurrence. The Police Officer secured the blood-stained earth from the wardat from near the cot and scaled it in presence of the Mashirs. He also secured three empty shells of 303 rifle and two live bullets from the place of occurrence. A lathi was also secured by him which was lying near the cot. He then prepared Mashirnama Exh.15 in presence of Mushirs Allahdad (P.W.5) and Muhammad Hashim. The I.O. Also searched the house of accused Aitbar, in his presence and recovered a Jalhi at the. Instance of the accused under Mashirnama Exh.7. He also recorded statements of P.Ws. Abdul Rehman and Tajo.
5. On 29-4-1982 the Investigating Officer went to R.D. No.27 Shahi Wah to arrest appellant Rehan who was posted there as a police constable. However, the I.O., was informed by A.S.I. Rehmat Khan that appellant Rehan had remained absent from his duty. He then recorded statement of A.S.I.
Rehmat Khan. On 2-5-1982 the I.O. Handed over the investigation papers to the S.H.O. For verification of the investigation done by him and for further investigation by the tatter. The S.H.O.
Thereafter arrested appellant Rehan and after completion of the investigation, appellant Rehan and co-accused Aitbar were challaned before the Court. However, co-accused Sanwato and Ramin were shown as absconders in the challan.
6. The accused in their respective statements recorded under section 342, Cr.P.C, denied the aforesaid charges. According to them, they had been falsely implicated in the case and the prosecution witnsesses were interested and hostile to them. The learned trial Judge although acquitted co-accused Aitbar and absconding accused Ramin and Sanwalo as according to him, there was no incriminating and reliable evidence against them and therefore, they were entitled to benefit of doubt, however, the appellant was found guilty of the offence and convicted and sentenced as pointed out earlier. According to the learned trial Judge, the evidence of the three eye-witnesses had been further corroborated by the evidence in regard to the recovery of the crime weapon from the possession of the appellant. The learned trial Judge also found that the appellant had motive to cause death of deceased Daim because according to the eye-witnesses, the deceased was taking away a pair of bullocks belonging to the appellant and other co- accused. Consequently, according to the learned trial Judge there was sufficient evidence to implicate the appellant in the crime.
7. So far as the case of the prosecution is concerned, reliance has been placed on the ocular evidence of the eye-witnesses Khathoor P.W.1, Abdul Rehman P.W.3 and Taj Muhammad P.W.4, besides Imtiaz Ahmed Shah P.W.2, Allahdad P.W.5, Khadim Hussain P.W.6, Rasool Bux P.W.7, Imamuddin P.W.8 and Ghous Bux P.W.9, P.W.1 Khathoor, who, as pointed out earlier, had also lodged the F.I.R. In respect of the incident, has fully supported the case of the prosecution. He further stated in his cross--examination that on the day of the incident, he had accompanied the deceased to watch his Dera for the first time, otherwise the deceased used to himself visit his dera. He further stated that the accused persons had grappled with him and the deceased and had fought with them for the release of the bullocks from them and therefore, the parties had exchanged lathi blows with each other. However, the witness did not grapple with any of the accused and stood at a distance from them on account of fear of the accused. Abdul Rehman P.W.3 and Taj Muhammad P.W.4 also appear to have made similar statements before the learned trial Court. The former was standing on his land whereas the latter was grazing cattle near the canal of Hazar Khan Bijarani when they witnessed the incident. Both the witnesses also saw co-accused Aitbar and deceased Baim grappling and exchanging lathi blows with each other. P.W.2 Imtiaz Ahmed Shah was working as Medical Officer, Kandhkot at the relevant time and he hail conducted post-mortem on the body of deceased Daim and found the following injuries on his person: "(1) One L.T.P. Wound 1 c.m. In diameter on the left side of the chest on the left mid axillary line and 12 c.m. Below the nipple. No blackening or charring was present. (wound of entry).
(2)On L.T.P. Wound 5 c.m. In diameter on the right side of chest, on the right posterior line at the lower part (wound of exit).
Death according to him, had occurred on account of shock and haemorrhage as a result of the first injury which was itself sufficient to cause death in the ordinary course of nature. P.W.5 Allahdad had acted as Mashir of the wardat in the case. According to him, the police had secured the bullet shells and live bullets from the wardat in his presence under Mashirnama Exh:15. They had also prepared inquest report and Mashirnama of the body of the deceased Exh.16. The witness, however, denied that co-accused Aitbar had produced any lathi in his presence. P.W.6 Khadim Hussain was the Mashir in whose presence co-accused Aitbar was arrested on 28-4-1982. He had noted injuries on the person of the accused at the time of his arrest. P.W.7 Rasool Bux was posted as Constable at Police Station Tangwani at the relevant time. According to the witness, A.S.I. Imamuddin had handed over the body of the deceased to him for taking the same to Medical Officer Kandhkot for post--mortem. He had handed over the dead body in the same condition as he had received-to the Medical Officer. The same was thereafter handed over to him by the Medical Officer after completion of the post-mortem. P A' Imamuddin, A.S.I. Had conducted the investigation in the case.
After the F.I.R. In respect of the incident was lodged by the complainant at 4-45 p.m. Which had been recorded by him, he took over the investigation of the case till on 2-5-1982 he handed over the same to the S.H.O. The Investigating Officer besides recording the statements of the aforesaid eye-witnesses to the incident also recorded the statement of A.S.I. Rehmat Khan, according to whom, appellant Rehan had remained absent from duty. P.W.9 Ghous Bux was posted as Constable at the relevant time. In his presence appellant Rehan came to the Police Station and produced one 303 rifle alongwith 50 live bullets. S.I.P. Sanaullah who was present at the Police Station sealed the rifle and the bullets in presence of the witnesses and prepared Mashirnma. At the same time the appellant was arrested by S.I.P: Sanaullah.
8. Mr. Azizullah K. Shaikh, learned counsel for the appellant, has argued that the learned trial Judge has failed to consider the entire evidence on the record and according to him, the conviction has been based on hearsay evidence which was not even corroborated by other independent evidence. Even the place of incident in the case was a disputed matter as the witnesses had given contradictory versions in this regard. The motive for the crime as alleged by the prosecution, according to the learned counsel, could not be established and there were many other contradictions in the prosecution evidence which could not be resolved by the prosecution.
Consequently, there was no reliable evidence upon which the conviction of the appellant could be based.
9. I find lot of force in the aforesaid contentions. The F.I.R. In respect of the incident was lodged after a considerable delay of about four hours when the distance of the Police Station from the scene of occurrence was shown only to be five miles and no explanation for such delay can be found in the evidence of the prosecution witnesses. No doubt, all the eye-witnesses have unanimously stated that appellant Rehan, who was the only accused, according to them, who was armed with a rifle, had caused tire-arm injuries to the deceased and this is further supported by medical evidence, according to which, the injuries No.1 and 2 found on the person of the deceased were fire-arm injuries, but the mere fact that all the eye-witnesses have unanimously attributed such injury to the appellant does not mean that they were speaking the gospel truth and their evidence did not require scrutiny in accordance with the established principles laid down by the superior Courts. It would not be out of place to point out here that the learned trial Court has believed the testimony of the eye-witnesses so far as it relates to the appellant but the evidence of the same eye- witnesses has been disbelieved in regard to the other co-accused including the absconding accused. In Muhammad Akhtar v. The State PLD 1957 SC (Pak.) 297 where the evidence of the eye- witnesses was disbelieved against some of the accused in the case and the part attributed to the appellant had been characterised by the High Court as "exaggerated", it was held by the Supreme Court that conviction of the appellant in the- absence of any confirmatory circumstance, could not be upheld on the evidence of the same witnesses whose version wag found to be false or unreliable. In the case of Abdul Ghafoor v. The State 1982 -SCMR 162 the appellant accused and acquitted accused were alleged to have fired many shots with their weapons but only one bullet injury was noticed on,, the deceased and such shot was attributed to the rifle fired by the appellant.
The evidence of the same prosecution witnesses in the case was disbelieved by the trial Court against the co-accused. Nevertheless the conviction of the appellant by the trial Court was upheld by the High Court. It was observed by the Supreme Court in the light of the aforesaid circumstances as follows "The High Court has expressed its doubt as to the presence of the acquitted accused and this fnding, to all intents and purposes, leads us to conclude that they were falsely implicated. In this background it becomes difficult to accept reasoning of the High Court that as he was consistently attributed the part of possessing a rifle then it must be Pie who must have fired. This again leads to the error of relying on the words of the prosecution witnesses whose evidence was held to be tainted and not believed in regard to the others; and as it came from the mouths of those witnesses whose credibility was highly doubtful. Such an assertion did not have any corroboratory value for the reason that a bullet injury was noticed as that would only show that someone armed with rifle had fired the shot but not as regards the identity of the assailant which had to be established by independent corroboratory evidence."
10. Another important factor which requires to be noted is that, according to the evidence given by P.W. Khathoor, who, as pointed out earlier, was one of the eye-witnesses of the incident, the other two eye-witnesses namely P.W.3 Abdul Rehman and P.W.4 Taj Muhammad arrived at the scene of occurrence on hearing the gun shots and cries. The evidence of P.W. Khathoor, therefore, shows that P.Ws. Abdul Rehman and P.W.4 Taj Muhammad were not the eye--witnesses of the incident but they had arrived at the scene of the occurrence only after hearing the gun shots and the cries.
No doubt, the said witnesses are also said to have witnessed the incident but the evidence given by P.W. Khathoor renders their evidence completely doubtful and unreliable without any independent corroboration. Even P.W. Khathoor, as per his own admission, was a chance witnesses as according to his own admission, it was for the first time on the day of the incident that he had accompanied the deceased to check the Dera on his land. No further explanation has been furnished by the prosecution as to why the witness had accompanied the deceased during his visit to the land. Consequently, the entire eye-witness account in the case has been rendered doubtful, and cannot be relied upon without independent corroboration by other reliable evidence. In Muhammad Afsar v. The Crown PLD 1954 FC 170 it was held that: "When the direct evidence of an incident involving more than one accused person is reduced to the statement of a single witness, and the Court is satisfied that it is false in relation to some of the accused persons, that testimony becomes subject to reasonable doubt as against the remaining accused persons as well. That doubt cannot be deemed to be satisfactorily resolved unless there be against each or all of the latter persons, material corroboration from independent sources, indicating that he or they did participate in the crime."
11. The prosecution apart from the eve-witness account of the aforesaid witnesses have sought further corroboration from the evidence in regard to motive. The motive, as pointed out earlier, was that deceased Daim had caught hold of the bullocks who were spoiling his Dera for taking them to the cattle pond which resulted in a fight between the parties. However, no evidence was furnished by the prosecution in respect of the ownership of any of the accused of the said bullocks. Not only the prosecution has failed to establish as to who was the owner of the bullocks, but, although, Rehan and Ramin were said to be brothers no relationship between the other accused inter se and the said accused could be established by the prosecution. Consequently, what was the interest of the accused in the bullocks has not been sufficiently explained by the evidence of the prosecution witnesses. Besides that, no hoof marks of the bullocks appear to have been found at the place of wardat although, admittedly, according to the witnesses, the incident took place on the ploughed land of Hazar Khan Bijarani. If the prosecution story in regard to the fight between the accused and the deceased was correct, there is no reason why the hoof marks left by the bullocks or even the marks left by the deceased and the accused during the alleged struggle should not have been found by the witnesses at the scene of occurrence. Consequently the circumstances of the case belie the evidence produced by the prosecution in respect of the motive for the commission of the crime. It is also not clear as to why appellant Rehan who was serving as a Police Constable had gone. To the land at the time of the occurrence.
12: The only other evidence in the case, which now remains to be considered, is the circumstantial evidence. It was alleged that co-accused Aitbar was armed with a lathi whereas the appellant was armed with his official rifle. Both the said weapons were shown to have been surrendered by the accused at the time of their respective arrest at Police Station Tangwam in presence of the Mashirs. P.W. Ghous Bux, as pointed out earlier, has stated that on 7-5-1982 at about 6-30 hours appellant Rehan himself produced one .303 rifle alongwith 50 live bullets at Police Station Tangwani under Mashirnama Exh.25. This witness was a Police Constable. He admitted in his cross- examination that about ten or twelve persons were available at the Police Station but none of them was asked by the Police to act as a Mashir. Reliance can hardly be placed on the evidence of this witness, because, as per his own admission, he was related to the deceased and the complainant.
No doubt, the fact that the witness was related to the deceased or the complainant alone C should not render his testimony unreliable but the credibility of the witness has to be judged, in the light of the, other surrounding circumstances. There apparently appears to be no reason, why this witness was made a Mashir when other independent persons were available at the police station at the time of the appellant's arrest. Furthermore, although, a Police Officer may be asked to act as Mashir, provided no other independent witness is available to act as such. Apart from, this there appears to be a material discrepancy in the evidence of this witness and the Mashirnama Fxh.25 which should have been explained by the prosecution. According to the witness, he had gone alongwith co-Mashir Sahib Dino to the Police Station at about 6-00 p.m. When they were, asked to act as Mashirs in the case. However, Mashirnama of arrest, according to the time noted thereon, shows that the same had been prepared at 6.30 p.m. It, therefore, shows that the Mashirnama was prepared by the Police even before the arrival of the said witnesses at the Police Station and only their signatures were taken on the Mashirnama after it had already been prepared by the Police.
Such evidence, therefore, cannot furnish corroboration to the ocular evidence as required under the law. Furthermore S.I.P. Sanaullah to whom A.S.I. Imamuddin had handed over the investigation on 2-5-1982 and who is said to have recovered the said rifle from the appellant, was not examined as a witness by the prosecution. Thercfore,.In view of the aforesaid E circumstances, there is no reliable evidence produced by the prosecution in respect of the alleged surrender of the appellant at Police Station Tangwani and production of the said rifle by him before the Police.
13. The learned trial Judge has relied upon the statement of Rehmat Khan which is said to have been made by him before A.S.I. Imamuddin during the course of investigation. The learned trial Judge appears to be completely unmindful of the elementary rules of evidence because Rehmat Khan was not a prosecution witness and no reliance could be placed by the learned trial Judge on hearsay evidence. Consequently, I find no other evidence which can lend further support to the ocular evidence of the eye-witnesses: The prosecution also appears to have omitted to send the rifle said to have been used in the commission of the crime alongwith the empty shells and the bullets recovered by the Police from the wardat for opinion of the ballistic expert. The mere F statement of the eye-witnesses that a-rifle had been used for the commission of the crime cannot necessarily lead to an inference that the same rifle which was recovered from the appellant had been used in the commission of the crime. In Ashraf and others v. The Crown PLD 1956 FC 86 it was observed:--- "---..But the recovery of a single blank pistol cartridge from the scene of occurrence supports only the evidence that one of the assailants was armed with a pistol and not the evidence that appellant Ashraf was that assailant. The tact that there was only one assailant armed with a pistol is of no significance as the learned Judges doubted the impartiality of the witnesses and not their capacity to identify the assailants. They repelled the contention of the accused that it was not possible for the witnesses to identify the assailants: In the absence of evidence connecting the cartridge with appellant Ashraf, his conviction can rest only on the very evidence the impartiality of which is doubted---..---
14. Apart from the infirmities enumerated above, the prosecution evidence is full of material contradictions. According to P.W. Khathoor, the place of incident was in Deh Hazaro, however, according to P.W. Abdul Rehman who was also stated to be one of the eye-witness of the incident, it was near the canal of Deh Hazaro. According to the third eye-witness Taj Muhammad, the place of occurrence was near the canal. The Mashirnama of wardat shows the occurrence having taken place on the ploughed land of Hazar Khan Bijarani. Nothing, therefore, can be spelled out from the evidence of the said witnesses to suggest that reference was made by them to the one and the same place. Apart from the said contradictions, there also appears to be conflict between the medical and the ocular evidence. Although, according to the evidence of the eye-witnesses, the accused and the deceased had exchanged lathi blows with each other, but no lathi injury was found by the Medical Officer who conducted the post-mortem on the body of the deceased.
Another material discrepancy that requires to be noted is that P.W. Imamuddin in his evidence stated that he had secured a lathi from the scene of the occurrence but no recovery of lathi was shown in the Mashirnama of the place of the in indent Exh.15.
15. It is thus clear that the ocular evidence of the eye-witnesses cannot be relied upon and there is no other independent corroboratory evidence produced by the prosecution to lend support to the ocular evidence. In Rehmat v. The State L D 1959 SC.(Pak.)109 it was observed:-- "------Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence."
16. For the aforesaid reasons, this appeal was allowed and the appellant was ordered to be acquitted by the short order dated 21-10-1991.