' RANA MUHAMMAD ARSHAD KHAN, J.--- Shamas Ejaz (27), Qamar Ejaz (18), Faiz Muhammad (50)
Khalil Ahmed (24) and Muhammad Yasin (32) were sent up by the Police of Police Station, Chauntra, District Rawalpindi to face the trial in an indictment Exh.P.F./1 registered on the statement Exh.P.F. Made by Khuda Dad recorded by Muhammad Maqsood Khan, Inspector/S.H.O. (P.W.16) at about 9 p.m. In the Civil Hospital, Rawalpindi.
2. The learned trial Court in its judgment, dated 30-3-1991 convicted Shamas Ejaz under section 302, P.P.C. Awarding him death sentence with a fine of Rs,20,000 and in default of payment whereof to undergo further one year's R.I. With a direction that the fine, if realised,- the moiety shall be defrayed to the legal heirs of the deceased as compensation contemplated under section 544-A, Cr.P.C. Qamar Ejaz, Faiz Muhammad, Khalil Ahmed and Muhammad Yasin were acquitted of the charge while giving them the benefit of doubt.
3. The Murder Reference No,494 of 1991 seeks confirmation of the sentence of death and the legality of the judgment has been assailed through Criminal Appeal No,54 of 1991. The complainant has also approached this Court through Criminal Revision No,133 of 1992 against the acquittal of the co-accused persons. All these matters are being disposed of together through this single judgment.
4. The facts of the prosecution case, as disclosed in Exh.P.F./1 are that the complainant was the resident of village Sangral and a cultivator by profession. Muhammad Anwar, his , son was an employee in Custom Department. The complainant on 10-8-1987, after having meeting with one Sher Muhammad boarded a bus at Laddian Bus Stop and seated in the third line behind the Driver.
Muhammad Anwar, deceased, was already sitting on the front seat of the bus. Muhammad Yasin, Khalil, Faiz Muhammad, Shamas Ejaz and Qamar Ejaz, were also seated in the same bus; when the bus reached near Kassi Lassan Wali, all of a sudden Faiz Muhammad Qamar Ejaz overpowered Muhammad Anwar deceased whereas Yasin and Khalil apprehended the complainant. Meanwhile Shamas Ejaz took out a .12 bore pistol and within his view fired a shot hitting Muhammad Anwar on the back of left side of his neck. He fell down. The bus was stopped and the accused decamped from the place of occurrence. Muhammad Anwar deceased succumbed to the injuries on his way to hospital.
5. The occurrence of the said crime took place on 10-8-1987 at 5-00 p.m. Inside the Bus No,RIC 4694 proceeding towards the Village Sangral near Kassi Lassan Wali within the area of village Sangral at a distance of five kilometers from the Police Station Chauntra.
6. The motive behind the murder of the only son of the complainant was the betrothment of Mst.
Nasira Bibi daughter of Muhammad Yaqoob, with the deceased. Faiz Muhammad, real maternal- uncle of Nasira Bibi was insisting upon the complainant to make disengagement with Mst. Nasira Bibi and to wreak the vengeance on the preceding Eid-ul-Fitr the deceased was fired at who fortunately escaped and the matter was hushed up on the intervention of the respectable. Out of this grudge Muhammad Anwar was murdered.
7. A Muhammad Maqsood Khan, Inspector/S.H.O. (P.W.16) after despatching the statement Exh.P.F.
To the police station for the formal registration of the case, deputed Hanif Ahmed S.-I. For investigation, who proceeded to the place of occurrence. He himself prepared the injury statement Exh.P.C. And the inquest report Exh.P.D. In the hospital. He despatched the dead body escorted by Ghulam Ahmed, S.-I. And Muhammad Safdar, Constable for post-mortem examination. He took into possession the national identity card of the deceased P.12, appointment letter P.13, currency notes P.14/1-7, handkerchief P.15 vide recovery memo. Exh.P.N. He recorded the statements of the witnesses under section 161, Cr.P.C.
8. Hanif Ahmed, S.-I. (P.W.14) inspected the place of occurrence and collected the blood from the seat and floor of the bus, and secured it into possession vide memo. Exh.P.H. He also took into possession the cushion P.6 which was secured vide memo. Exh.P.J., crime empty P.7 was taken into possession vide memo. Exhs.P.K., bus P.9, documents P.10 and P.11 were taken into possession vide memo. Exh.P.M. The last-worn clothes shirt P.1, Shalwar P.2, Azarband P.3 and Banyan P.4 were produced before the Investigating Officer which he took into possession vide memo. Exh.P.A., a sealed phial P.5 was also taken into possession vide memo. Exh.P.B. The site plan Exh.P.G. And Exh.P.G./1 was got prepared. He, on 16-8-1987 arrested Faiz Muhammad and Qamar Ejaz accused.
The remaining investigation was conducted by Ghulam Ahmed, S.-I. (P.W.15) who on 29-8-1987 arrested Shamas Ejaz and Muhammad Yasin. Shamas Ejaz was found in possession of .12 bore pistol P.8 at the time of the arrest. The pistol was unloaded. He recovered live .12 bore cartridges P.16 which were taken into possession vide memo. Exh.P.L. He finalized the investigation and prepared the challan.
9. Dr. Malik Muhammad Safi, Medical Officer (P.W.4) had conducted the post-mortem examination of Muhammad Anwar deceased on 11-8-1987 at 8-15 a.m. And found the following injuries on his person:--
(1) Lacerated wound 3 c.m. x 2 c.m. Left side of the back of the neck at the base 7 c.m. Below occiput. Wound surrounding by blackening and burning.
' In the opinion of the doctor, the deceased died due to injury No,1 which caused damage to cervical spinal cord and major vessels right side of neck resulting into haemorrhage and cardio pulmonary failure. This injury was opined to be sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and caused by fire-arm. The probable time between injury and death was within half an hour and probable time between death and post-mortem was within 10 to 20 hours.
10. The prosecution in order to substantiate its case produced as many as 16 witnesses.
Muhammad Amir, S.-I. (P.W.1), received the sealed parcels containing the blood-stained earth and .12 bore carbine, Hamad Khan Constable (P.W.2) had delivered the sealed parcels to the concerned office, Safdar Ali, Constable (P.W.3) had alongwith Muhammad Afzal P.W. (N.P.) escorted the dead body to the mortuary for the post-mortem examination, Dr. Malik Muhammad Safi, Medical Officer (P.W.4) had, on 11-8-1987 conducted the post-mortem examination on the dead body of the deceased, Muhammad Anwar, Khadim Hussain, A.S.-I. (P.W.5) had registered the formal F.I.R.
Exh.P.F./1, Muhammad Amir, Patwari (P.W.6) had prepared the site plan Exh.P.G. And Exh.P.G./1 under the direction of the police and on the pointation of the witnesses Abdul Sattar, Head Constable (P.W.7) delivered the sealed parcels to the relevant offices at Lahore, Feroze Khan (P.W.8) and Qurban Khan (P.W.9) deposed to the recoveries, Dost Muhammad (P.W.10) deposed to the motive, Ghulam Mustafa (P.W.11), Anwar Baig (P.W.12) and Khudadad (P.W.13) furnished the ocular account, Hanif Ahmed, Inspector (P.W.14) partly investigated the case and gave the details of it, Ghulam Ahmed, S.-I. (P.W. 15) also carried out the investigation partly and prepared the challan against the accused persons, Muhammad Maqsood Khan, Inspector (P.W.16) on 10-8-1987 recorded the statement Exh.P.F. Of the complainant in the hospital and prepared the injury statement and inqueSt report Exhs.P.C. And P.D., respectively.
11. On the conclusion of the prosecution evidence the same was put to the accused persons, who refuted the allegations and professed their innocence. They were also examined under section 324, Cr.P.C. Neither they appeared to make statement on oath under section 340(2), Cr.P.C. Nor they produced any defense evidence.
12. Learned counsel for the appellant canvassed acquittal on the ground that the occurrence in question was unwitnessed occurrence in which the appellant had been falsely implicated. The ocular testimony was unreliable. The prosecution could not prove the motive and no case could be established against the appellant through the reliable, trustworthy and unimpeachable deposition.
There was no corroboration available on the record in support of the testimony of the eye- witnesses.
13. The learned State Counsel made arguments in support of the judgment and learned counsel for the complainant advanced arguments in support of his revision petition.
14. We have heard the learned counsel for the appellants as well as the learned counsel for the State assisted by the learned counsel for the complainant. We have also given our anxious consideration to the facts and circumstances of the case and have also gone through the evidence with their assistance.
15. Ghulam Mustafa (P.W.11), Anwar Baig (P.W.12) and Khudadad (P.W.13) provided the ocular testimony. Khudadad (P.W.13), complainant deposed that he had boarded the bus P.9 from Laddian Bus Stop and occupied a seat in the bus. The aforementioned accused were already sitting in the bus. Ghulam Mustafa (P.W.11) was driving the bus, Muhammad Anwar, his only son was also occupying the front seat in that bus. Anwar Baig was sitting beside the deceased on his right side. He reiterated the details of the occurrence narrated in statement Exh.P.F. He in cross- examination in an answer to a question denied that he was not present at the place of occurrence and the accused persons were implicated in a fabricated case. He further deposed that Mst.
Sughran Bibi, his daughter was married with Irfan Mahmood (given up P.W.) Qurban Ali (P.W.9) was his sister's son. He continued answering the question that Mst. Rasham Jan was his sister and Mst.
Tasleem Begum (given up P.W.) was the daughter of her son Muhammad Afsar and was the wife of Zammard Khan (given up P.W.). Muhammad Bashir (given up P.W.) was real brother of his wife.
Ghulam Mustafa (P.W.11) was son of Bashir. He admitted very frankly that he was challenged in an offence under section 395, P.P.C. And was awarded the sentence for a period of 14 years, but he denied the suggestion that he was challenged in a case of abduction of Mst. Taj Bibi and Ajaib Bibi.
He further stated that Anwar Baig (P.W.12) was also challaned and sentenced to ten years' R.I. In the same case. He did not deny the suggestion that he had escaped from the custody of the police during the process of shifting from one jail to another and remained absconding for almost three years.
15-A. Muhammad Anwar Baig (P.W.12) in his testimony testified and corroborated the version given by the complainant deposing that he was present in the bus and was seated on the right side of the deceased (Anwar) when Shams Ejaz accused/appellant took .12 bore pistol and within his view fired a shot which struck on the left side of the back of' the deceased's neck. He very categorically admitted in his cross-examination that he alongwith complainant was convicted and sentenced for 14 years' R.I. Regarding the abduction of Mst. Taj Bibi and Ajaib Bibi. He, in an answer to a question, stated that he was convicted and sentenced on account of the opposition of the accused. However, he denied the suggestion that he had deposed on account of relationship with the complainant and the enmity with the accused. Further deposed that there were 23/24 persons present in the bus. Ghulam Mustafa (P.W.11) also deposed to the ocular account. He was driving the bus P.9 on the fateful day. He made the statement while corroborating the testimony of Khudadad (P.W.13). He, in his cross-examination, stated that his statement was recorded at midnight on the same day at the spot. The statements of other witnesses were also recorded on the same day. He very frankly admitted his close relationship with the deceased and complainant. He, in an answer to a question, deposed that he was a Government servant and was not holding driving license.
However, he denied the suggestion that he did not know how to drive a bus. He very categorically stated that on their way from Panda to the alleged place of occurrence many deserted and uninhabited places fall. He further stated that there were 25 passengers in the bus at the time of the occurrence.
' The prosecution has mainly relied upon the ocular testimony coupled with medical evidence and recovery of the crime weapon. So far as the motive is concerned, from the above survey of the evidence of the prosecution it is clear that the motive for the murder in this case was asserted to be an engagement of Met, Nasira Bibi with the deceased. This motive is obviously double-edged sword. On the one hand it could be a motive for murder and at the same time it could also be a cause of false involvement of the appellant and acquitted accused persons. The perusal of the record indicates that no independent witness was produced to prove the fact= of engagement of the deceased with Mat. Maim. Since the alleged motive has not been proved by the prosecution, through a reliable and confidence inspiring evidence, so the same is shrouded in mystery. The principle of law is that once the motive is alleged it becomes the duty of the prosecution to prove it.
If it fails to prove the same, then it becomes, keeping in view the circumstances of the case, fatal to prosecution case. So, the genesis of this case is not clear.
17. As far as the medical evidence is concerned, it was stated by Dr. Malik Muhammad Safi (P.W.4),his statement that the deceased suffered only one lacerated wound on left side of the back of his neck. The statement of the eyewitnesses, is not, by any stretch of imagination, in consonance with the medical evidence. The deceased was stately sitting on a seat located in the left side of the bus. He was overpowered by the accused and was not allowed to move. His face, according to the prosecution version, was in downward position, which makes it clear that the accused was standing when he fired a shot. In this way, naturally the shot should have hit on the back of the right side of the neck of deceased instead of left side. Furthermore, there was no mark of fire shown on any part of the body of the bus, which is indicative of the fact and further scrutiny of the record is warranted to find out whether the occurrence had taken place in the manner alleged by the eye- witness or whether there was any possibility of the said occurrence to have been taken place in some other manner. In this view of the matter, there is a reasonable possibility that the occurrence had not taken place in the manner in which the eye-witnesses claimed the same to have been occurred. The minute examination of the file makes it abundantly clear that the medical evidence is not in consonance with the ocular account.
18. Admittedly Khudadad (P.13) is the real father of the deceased whereas the other two eye- witnesses are close relations of the deceased. The contention of the learned counsel for the appellant that they are highly interested witnesses is not without substance, for, the witnesses are not only close relations with each other but are also inimical towards the appellant and the acquitted accused. Khudadad and Anwar Baig (P.W.12) have very categorically admitted that they were convicted and sentenced for causing abduction of Mst. Taj and Mst. Ajaib. Anwar Baig admitted in his deposition that he was convicted and sentenced on account of the opposition of the appellant and acquitted accused. The perusal of the evidence reveals that the eye-witnesses were not only interested witnesses but also were inimical towards the appellant and acquitted accused. They had a motive to implicate the accused in a fabricated case. In this view of the matter the ocular account in the instant case is not confidence inspiring and trustworthy. So, the testimony of the eye-witnesses cannot be relied upon for recording the capital punishment when their deposition is not corroborated by any other independent or reliable source. Non-production of any independent witness, makes the case of the prosecution doubtful, the benefit of which must invariably go to the accused/appellant.
19. The learned trial Court disbelieved the prosecution evidence to the extent of other acquitted co- accused and on the basis of the same set of witness the appellant was convicted without having any independent corroboration and reasonable ground. The principle of falsus in uno, falsies in omnibus, though not made applicable universally, yet it is applicable in its entirety, in the peculiar circumstances of this case.
20. The upshot of the above discussion is that the prosecution has failed to prove its case beyond any shadow of doubt. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge, by giving him the benefit of doubt. The murder reference is answered in the negative. The short order regarding the release of the appellant, has already been issued.
Appeal accepted