TASSADUQ HUSSAIN JILANI, J.---This judgment shall dispose of Criminal Appeal No. 89 of 1979 filed by the State against the acquittal of Muhammad Hanif of the charge under section 302, P.P.C. And Criminal Appeal No. 924 of 1978 filed by Muhammad Hanif (respondent in the afore-referred State appeal) against his conviction under section 307, P.P.C. As they are addressed against the same judgment dated 17-7-1978 passed by Sh. Muzaffar Hussain, Additional Sessions Judge, Lahore in a case registered vide F.I.R. No.506/75, dated 4-9-1975, Police Station Nawankot, District Lahore.
2. The prosecution story as given in the F.I.R. (Exh. PB) lodged on the statement of Mst. Inayat Begum (P.W. 3) and recorded by Sh. Muhammad Siddique, S.-I. (P.W. 15) briefly stated is that Mst. Inayat Begum complainant was married to Muhammad Latif deceased and her sister Mst. Zohran Bibi was married to Muhammad Sharif, a brother of Muhammad Latif deceased. Muhammad Hanif respondent-accused was also a brother of Muhammad Latif. The complainant had, however, no issue from the wedlock. They, therefore, used to treat Muhammad Ashraf, a son of Muhammad Sharif, like their own son. Muhammad Latif used to look after the affairs of his father. Muhammad Hanif respondent-accused neither liked the influence being exercised by Muhammad Latif in the affairs of his father nor the affection that he extended towards Muhammad Ashraf, his nephew.
Many a times respondent-accused asked complainant's husband to desist from giving importance to Muhammad Ashraf otherwise he will murder him. On the fateful day at about 6-00 p.m. When the complainant alongwith her brother Muhammad Jamil, Muhammad Latif deceased, Muhammad Ashraf and Mst. Mukhtar Bano were present at their house when Muhammad Hanif respondent-accused entered. He was holding in his hands a pistol and a knife. As soon as he came he fired two shots at Muhammad Latif which hit him at his right flank and under right arm pit. He also attacked Muhammad Ashraf (P.W.4) and inflicted injuries at his back. The hue and cry raised attracted his neighbour Feroze Din (P.W. 6) and when he tried to intervene he too was given a knife blow. Muhammad Latif succumbed to the injuries at the spot.
3. After recording the statement of Mst. Inayat Begum complainant, Sh. Muhammad Siddique, S.I.
(P.W.15) went to the spot, took into possession blood stained earth from two places i.e. Where Muhammad Latif fell down vide Exh.P.C. And from the spot where Muhammad Ashraf (P.W.4) received injuries vide Exh.P.D. He recorded the statements of the witnesses the same day, took into possession last worn clothes of the deceased i.e. Dhoti (Exh. P.3-A) and phial containing bullet recovered from the dead body (Exh.P.3-B) vide memo Exh. P.E. On 5-9-1975 Muhammad Hanif respondent-accused was arrested by Ashiq Hussain (P. W. 1). On his personal search, revolver (P.1) and two live cartridges (P3/1-2) and four empty cartridges (P4/1-4) alongwith a shirt wrapped in a small piece of cloth were recovered. All these articles were taken into possession vide memo. Exh.
P.A. Blood stained clothes of the accused i.e. Shirt (P.6) and Dhoti (P.7) were also taken into possession vide memo. Exh. P.G.
4. Dr. Tahir Anees (P.W. 14) conducted the post-mortem examination of the dead body of Muhammad Latif and he found the following injuries on his person:-- "(1) A circular lacerated penetrating wound 1/4" x 1/4" with blackened inverted edges over outer upper right chest.
(2) A circular lacerated penetrating wound 1/4" x 1/4" with slightly blackened and inverted margin over upper back right chest. "
According to him both these injuries were individually sufficient to cause death in the ordinary course of nature.
On 6-9-1975 at 1-15 p.m. This witness examined Muhammad Hanif respondent-accused and found a contused swelling 1" x 1/2" over left lower eye lid. According to the doctor this was caused by a blunt weapon and was simple in nature.
5. During trial the prosecution examined fifteen witnesses. Mst. Inayat Begum complainant appeared as P.W.
3. She made statement consistent with her earlier version given in the F.I.R. (Exh.
P.B.) Her statement was corroborated by injured Muhammad Ashraf (P.W. 4) who is her nephew, Muhammad Jamil (P.W. 5) brother of complainant and Feroze Din (P.W. 6) who is not related but a neighbour of the complainant. Mst. Mukhtar Bano a witness cited in the F.I.R. Was, however, given up as won over. Ashiq Hussain, H.C. (P.W. 1) appearing in Court stated that he arrested Muhammad Hanif and took into possession certain articles which formed subject-matter of memo. Exh. P.A.
Shahabuddin, A.S.I. (P.W. 2) is a formal witness and was incharge of the Malkhana at the relevant time when certain parcels containing blood stained earth and clothes were given to him for safe custody. P.W. 8 Ch. Muhammad Yaqoob is a draftsman and P.W. 9 is a witness with regard to motive. He stated that a day before the occurrence Muhammad Hanif respondent-accused came to him and complained that Latif deceased was very fond of Muhammad Ashraf (P.W. 4) and that his brother Latif being issueless there was likelihood that he might adopt. Ashraf as his son and transfer all the property in his name Ghulam A.I, S.-I. Appeared as P.W.
10. He alongwith Ashiq A.I, H.C. Arrested Muhammad Hanif respondent-accused and recovered the articles which have been mentioned in para. 3 above. P.W. 11 Zulfiqar A.I is a Head Constable. He too is a formal witness who received three parcels from Inayat Hussain Moharrir and handed them over to Moharrir P.S. Nawankot. Fazal Elahi, F.C. Appeared as P.W.
12. He too is a formal witness. P.W. 13 is a record-keeper of the Mayo Hospital, Lahore. He identified the handwriting of Dr. Maqsood Sarwar. P.W. 15 is Sh.
Muhammad Siddique, S.I-I.O./S.I. Who investigated the case.
6. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and pleaded that the entire case is false which had been engineered at the behest of Mst. Inayat Begum complainant (P.W. 3) who had got Latif killed and thereafter wanted to grab the entire property by involving him in the case of murder. Muhammad Hanif respondent-accused also produced two witnesses, namely, Muhammad Din (D.W. 1) who is father of both Muhammad Hanif respondent-accused and that of Muhammad Latif deceased. According to him on the fateful day and time they were sitting in the house when Muhammad Jamil P.W. Came there and started quarrelling with Muhammad Latif deceased. Muhammad Ashraf sided with Jamil. An altercation took place and Latif deceased gave a knife blow to Muhammad Ashraf P.W. Feroze P.W. Was also attracted to the spot. Muhammad Jamil P.W. Opened fire which hit Latif deceased from a very close range. Din Muhammad appeared as P.W.
2. He has stated that there was a dispute over land between wife of Latif and Jamil P.W. And that Sharif brother of the deceased and his wife wanted their share from the valuable land to which Latif did not agree. The dispute could not be resolved despite the fact that a Punchayat had been convened in which according to Din Muhammad D.W.
He also participated.
7. Learned counsel for Muhammad Hanif respondent-appellant submitted that as Muhammad Hanif has already served out his sentence under section 307, P.P.C. He would not press the appeal and so far as the appeal filed by the State against his acquittal of the charge under section 302, P.P.C. Is concerned, the State appeal has no force. In support of his plea he raised following points:- -
(i) that the impugned judgment in so far as it acquits the respondent Muhammad Hanif of the charge under section 302, P.P.C. Is well reasoned and sustainable in law;
(ii) that the quality of evidence is the same on both the sides i.e. The prosecution has produced Mst. Inayat Begum widow of the deceased whereas the defence has produced Muhammad Din father of Latif. The benefit of doubt, in these circumstances, according to the learned counsel, has rightly been given to Muhammad Hanif respondent; and
(iii) that the case was registered in September, 1975, he was acquitted on 12-7-1978 and it would be unfair to send him behind the bars once again.
8. Learned Public Prosecutor has assailed the finding of acquittal on the ground that there was overwhelming evidence against Muhammad Hanif respondent to bring home the charge of homicide and there was no tenable ground to acquit him and that the acquittal of the respondent besides having resulted in miscarriage of justice is perverse.
9. We have heard learned counsel for the parties and have also gone through the evidence on record.
10. The appeal against the acquittal and the grounds which may justify interference have engaged the attention of the Hon'ble Supreme Court as also this Court in several cases. It may not be possible to refer to all the precedent case-law on the point; however, in a celebrated judgment titled as Ghulam Sikandar and another v. Mamraz Khan and others (PLD 1985 SC 11) the Hon'ble Supreme Court having discussed the case-law on the subject has laid down certain principles which have been followed by the Superior Courts it this regard. At page 18 of the said judgment these principles are a; follows:-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions; One initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional case on overwhelming proof resulting in conclusion and irresistibly conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in then cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
PLD 1994 SC 301) while highlighting the point that a double presumption of innocence is attached to an accused who stands acquitted after regular trial it observed as under:------ "It has been the consistent view of this Court that there is double presumption of innocence in favour of an accused person who has secured acquittal; one, that every accused shall be presumed to be innocent unless proved to be guilty and the other that a competent Court of law has adjudged him not guilty. The interference can only be made if the order of the Court below is manifestly wrong or perverse or is based on the view of the evidence which no Judicial Officer would take, or the Court has misread the evidence or important evidence has been ignored or that non-interference will result in miscarriage of justice. The mere fact that the Appellate or Revisional Court form a different opinion on the appraisal of evidence than the that arrived at by the trial Court will not justify setting aside the order of acquittal. Due weight has to be given to the conclusion of the trial Court. These considerations have to be kept in view both, in appeals against acquittal under section 417, Cr.P.C. By the State as well as in criminal revisions under section 439, Cr.P.C. Filed by the complainant party as, in either case interference is sought with the order of acquittal, in the former the Appellate Court can itself convert the acquittal into conviction while in the latter case the Revisional Court can only order retrial and is not competent to pass sentence itself."
11. Keeping in view the afore-referred guidelines we propose to consider the legality and propriety of the reasons which found favour with the learned trial Court in acquitting the respondent of the charge under section 302, P.P.C. The learned trial Court having observed that Latif deceased was admittedly killed in the morning of 4-9-1975 in his own house did not extend credence to the testimony of Jamil (P.W. 5), Ashraf (P.W. 4) and Mst. Inayat Begum (P.W.3) on the ground that they are closely related inter se and because they made improvements in their statements made before the Court. The learned trial Court also drew an adverse presumption against the prosecution for having not produced the mother and the father of Latif deceased who lived in the same house as also for not producing Mst. Mukhtar Bano who was cited as witness in the F.I.R. The reasoning advanced by the learned trial Court for disbelieving the natural witnesses is not sustainable because the complainant and the other eye--witnesses are the natural witnesses of the occurrence. In the cross-examination their presence at the spot was not disputed and in fact it is even admitted by D.W. 1 who is father of Latif deceased and Hanif respondent-accused. The suggestion given to Mst. Inayat Begum (P.W. 13) during the cross-examination was that she got Latif killed herself with object of grabbing his property and after his murder she married his real brother i.e. Muhammad Rafiq. If there was any iota of truth in this wild allegation Ashraf (P.W. 4) son of Sharif a real nephew of Latif deceased would not have appeared as a prosecution witness and the other real brother of the deceased, namely, Rafiq would not have married her. Both P.W. 3 and P.W. 4 made statements in Court consistent with their earlier statements before police on material particulars. The so-called improvement in the statement by P.W. 3 (complainant) to which the trial Court took exception was attribution of the following words to the accused when he entered the house:-- [Ye Kam Chorr Do, Warna Mar Don Gha] and further he hurled out a threat to Jamil P.W. When he tried to intervene. Similarly in the statement of P.W. 4 Ashraf injured there was an improvement when he said that the accused uttered the following words before he attacked Latif deceased:-- [Main nain Pehlay hi kaha tha k M.Ashraf ko perhana ur peyar kerna chor do] It was contended that since this 'is an improvement over the F.I.R., the witnesses be disbelieved.
These witnesses are consistent inter se qua the version that these threatening words preceded the attack. The presence of these witnesses having been admitted, it could be an honest omission on their part not to have mentioned it in their statements before the police. One has to keep in mind that the F.I.R. Was lodged within an hour of the occurrence. P.W. 3 Mst. Inayat Begum the grief stricken wife of Latif deceased and P.W. 4 Ashraf must have been in a state of shock and in that state if they omitted to mention the words in question it cannot discredit their testimony qua the manner Hanif accused fired at Latif deceased and the way P.W.4 Ashraf and P.W. 6 Feroze Din were injured. Further more having convicted Hanif accused under section 307, P.P.C. For causing injuries to Muhammad Ashraf P. W., how could Ashraf P. W be disbelieved qua the murder of Latif deceased?
The learned trial Court failed to appreciate- that Mst. Mukhtar Bano who is mentioned as an eye- witness in the F.I.R. Is the real sister of Latif deceased as also Hanif respondent-accused. The prosecution did not produce her as she had been won over. It is understandable that a sister who had lost one brother in the occurrence would not like to loose the second one or incur the wrath of the second one by deposing against him during trial.
Mainly the witness on whose testimony is based the conviction of Hanif respondent under section 307, P.P.C. Is the statement of P.W. 6 Feroze Din who, according to the learned , trial Court, deserved full credence as he is not inimical to either of the parties. He is an immediate neighbour.
Interestingly his statement is also one of the main reasons of the acquittal of Hanif respondent of the charge under section 302, P.P.C., because according to the learned trial Court "Feroze Din P.W. Is tight lipped about the factum of the murder of Latif. " According to Feroze Din P. W. He ran towards the house of Latif deceased as he heard report of gun fires from there and as he entered the house he saw Hanif respondent-accused inflicting injuries on the person of Ashraf P.W. And when he tried to save him, Hanif accused inflicted blow on him. He further adds that he did not know as to whether Hanif respondent-accused gave him injuries intentionally and further as to how he received the injury and with what weapon. A person runs towards a house having heard the gun fire and does not talk about as to who was the victim of the gun fire and who was the assailant he does not say as to how he received the injury, he even does not talk about the weapon with which he received the injury cannot be said to be telling the whole truth. Even D.W. 1 Muhammad Din admits that Latif was killed during the said occurrence and blood stained earth was also taken into possession from the place where Latif died. The statement of P.W. 6 Feroze Din therefore reflects an attempt to with-hold something and that something is the vital information about the assailant and the victim. He was trying to help his neighbour Muhammad Hanif respondent and cannot be extended implicit faith to discredit the prosecution evidence with regard to the murder.
Taking a clue from the arguments of the defence counsel, the learned trial Court took a strong notice of the presence of Muhammad Sharif (a real brother of Hanif respondent and father of Ashraf P.W.) during trial and observed that since the said Sharif was pursuing the prosecution case vigorously the testimony of inimical witnesses cannot be relied upon. To say the least this inference is rather fanciful, conjectural and against the weight of record.
While discussing the site plan and the distance of the points from where the prosecution witnesses saw the occurrence and from where Muhammad Hanif respondent fired at Latif deceased the learned trial Court observed that since as per site plan the deceased was fired at a distance of 27 feet and according to the medical evidence the injuries on the person of the deceased could not be caused from a distance of more than one feet the medical evidence contradicts the ocular account. In making this observation the learned trial Court has misread the ocular account and has given undue weight to the site plan. No question was put to P.W. 3 Mst. Inayat Begum about the distance of the place from where Latif deceased was shot at. However, Ashraf P.W. 4 was asked a question and he replied, "After closing the door from inside, the accused moved 2/3 steps ahead and then opened fire at Latif deceased. After the deceased had fallen on the ground, the accused came right over him and fired the second shot while the deceased was lying on the ground". The afore-referred ocular account would show that the deceased was fired at from a close range as opined by the doctor and there is no discrepancy between the medical evidence and the ocular account.
It seems the trial Court was taken in by the entries made in the site plan to discredit eye-witnesses.
By adopting such a course the learned trial Judge did not quite appreciate that a site plan is not a substantive piece of evidence and cannot be used to discredit a witness whose testimony otherwise inspires confidence. In Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 Supreme Court 234 the august Supreme Court observed at page 239:--- "Upon an analysis it appears that the learned Judges were mainly influenced by the medical evidence and the site plan to throw en bloc the evidence of the three eye-witnesses. We have noticed already that none of the these grounds is vapid. The nature of the incised injuries particularly their size show that they could be caused by spears which had sharp blades, and not by such a heavy weapon as a hatchet. It was hardly realised that the site plan itself is not a substantive piece of evidence which could be used to contradict or discredit the unchallenged evidence of the three eye-witnesses."
12. The witnesses produced in defence do not in any manner advance the case of the respondent- accused. D.W. 1 Muhammad Din father of Latif deceased as also of Hanif respondent stated that Mst. Inayat Begum P.W. 3 used to ask Latif deceased time and again to transfer the entire property in her name as they had no issue and that on the fateful day when he was present in house, Jamil P.W. (brother of Mst. Inayat Begum P.W. 3) entered the house. He had a quarrel with Latif deceased in which Ashraf P.W. Sided with Jamil whereupon Latif deceased inflicted knife blow on the person of Ashraf P.W., Feroze Din P.W. Reached the spot, separated Latif from Ashraf P.W. And then Jamil opened fire at Latif. This version appears to be an afterthought and does not stand to reason. The falsehood of this story comes to light in the cross-examination of this witness. He admitted that after the registration of the instant case he did not complain to any police officer that the persons named in the F.I.R. Qua the murder of his real son are innocent and that the real culprit Jamil had been left out. Din Muhammad P.W. 2 is not a witness of the occurrence and according to him he participated in a punchayat convened to resolve some land dispute wherein wife of Latif deceased, Jamil P.W and Sharif a brother of the deceased and his wife wanted share or value of the land in question to which Latif deceased did not agree. He further added that this punchayat was convened even after the murder of Latif but nothing could be resolved. The testimony of this witness also does not inspire confidence and in any case he is not remotely connected with the occurrence in question.
13. In the afore-referred circumstances we are not satisfied with the reasons given by the learned trial Judge for disbelieving the eye-witnesses. To discard their evidence merely on the grounds of speculation or some inconsequential discrepancies in our view would be violative of the well recognized principle applicable to safer administration of justice. A careful consideration of the grounds of doubt formulated by the trial Judge indicates that the same are rather illogical, unreasonable and perverse. The incident took place at 6-00 a.m., the witnesses named in The F.I.R.
And who appeared in Court are natural witnesses and their presence at the spot is admitted. The credibility of these witnesses is not only borne out from the proximity of their abode to the place of occurrence but also on account of the fact that they stood the test of cross-examination without any taint. Their evidence is fully corroborated by the medical evidence. We have therefore reached to the conclusion that the case against Muhammad Hanif respondent-accused has been established beyond reasonable doubt and that he has to be convicted of the offence of murder. In regard to the quantum of sentence, however, there are extenuating circumstances and the extreme sentence of death is not called for in this case. The incident took place on 4-9-1975.
Muhammad Hanif respondent was convicted under section 307, P.P.C. And sentenced to ten years'
R.I. On 17-7-1978 which sentence he has already undergone. We, therefore, allow Criminal Appeal No.89 of 1979 filed by the State, convict him under section 302, P.P.C. And sentence him to imprisonment for life. Criminal Appeal No.924 of 1978 filed by Muhammad Hanif (respondent- accused) is dismissed and the sentence under section 307, P.P.C. Is maintained. Benefit of section 382-B, Cr.P.C. Shall be extended to him. Sentence of fine, however, is .Not called for in the peculiar circumstances of thiscase.