' SHAMFEM HUSSAIN KADRI, J.-Four appellants namely, Gharib Alam, 50 years, Akbar son of Sher Muhammad, 25 years, Sher Muhammad son of Muhammad Din, 70 years, Makhan son of Karam Dad, 30 years of age were tried by the learned Sessions Judge, Lahore for the murder of Mst.
Bashiran alias Rabin Bibi and for attempted murder of one Siddique (P. W 10). He convicted the appellants under section 302 read with section 34, P. P. C. And awarded life imprisonment and a fine of Rs, 5,000 each or in default 2 years' R. I. Under section 307/34, P. P. C. All the appellants were convicted and sentenced to 7 years' R. 1, and a fine of Rs, 1.000 each or in default a year's R. I. Boota, the complainant in this case has filed Criminal Revision No, 988 of 1971 for awarding the extreme penalty to Gharib Alam in which notice was issued by a learned Judge of this Court. We are disposing of both Criminal Revision No, 988 of 197 t and Criminal Appeal No, 560 of 1971 filed by the appellants, by this order.
2. The occurrence is alleged to have taken place at about sunset time on 14-84968 in the house of Boota in village Murade Khurd at a distance of 32 miles from Police Station, Warburton. The statement (Exh. P. A.) of Boota (P. W. 9) was recorded on 19-8-1968 at Chichoke Malian by Raja Muhammad Akram, A. S. I., P. S. Warburton, who happened to be present in that village. Formal F. I. R.
Exh. P. A./1 was recorded by Abdul Hameed, Head Constable (P. W. 5) at 8-00 a.m. On 20-8-1968.
3. Akbar and Shera were arrested on 22.8-1968 while Makhan was arrested on 26-8.1968 and Gharib Alam on 31-34969. Nothing was recovered from the appellants which could incriminate them with the crime. The Police Officer conducting the inquiry recovered blood-stained earth frorn the roof top of Boota complainant and also a pellet and wade from the same roof. Wads are Exh. P.
2/1.13 while pellet is Exh. P.
1. Their recovery memo. Is Exh. P. C. From the roof of Makhan 22 pieces of wads &h. P. 4/1.22 were taken into possession vide memo. Exh. P. B. From the courtyard of Karam, who is neither a witness nor an accused in the case, two wads Exh. P. 5/1-2 were recovered vide memo Exh. P. F. Nine wads Exh. P. 3/1-9 were also taken into possession from the house of Karam vide memo. Exh. P. D. Two wads Exh. P. 7/t-2 were also taken into possession from the roof of the Kotha of Nabi Bakhsh, who is neither a witness nor an accused in the case. Makhan also produced his gun licence but no empty catridge was found. The gun was not sent to the Forensic Science Laboratory, Lahore.
4. The story of prosecution is given in the statement of Boota (P. W. 9) in the following words: "I belong to village Murade Khurd and I am cultivator. Owing to the good relations between Mahboob Ali, Chairman, and Makhan they had purchased a common tractor and set up a tube- well. Mahboob All had enmity since generations with Gharib Alam appellant. Sometime ago Makhan and Gharib Alam cultivated good relations as a result of which relations between Mahboob All and Makhan also became fine. About two or two and a half months ago Mahboob All and Makhan had a dispute over the tractor and the tube-well. Makhan took away the tractor from the possession of Mahboob Ali to Sheikhupura. Sheikhpura Police took the tractor in possession and proceeded against both of them for security proceedings. This further created bad blood between the parties. I own a square of land in village Murade which I had given on lease. At the termination of the lease since the last month of Chet. I gave 15 acres of land to Rehman, a step-brother of Makhan for cultivation and took Rs, 1500 from him with the promise that the money will be returned on the receipt of the crop. In the month of Baisakh I and Rehman had a dispute because I was the supporter of Mahboob Afi. For these reasons I turned out Rehman from the 15 acres of land which I had given to him. Rebman demanded his Rs, 1,500 which I did not pay but I promised to pay him in the near future. This further enhanced enmity. About 15 or 16 days ago I complained to Meena and his uncles for Meena's cultivation of illicit relations with Mst, Rasoolan daughter of Shera, who is my sister's daughter. Meena is the nephew of Makhan. This led to the exchange of abuses For these reasons Makhan bore grudge against me and my sister's son Muhammad Siddiq. Mst. R& 1a alias Bashiran is my niece. Both of them lost their parents when they were babies. I brought them up in my own house and married them and kept them in my own house even after their marriage.
Yesterday on 19-8-1968 immediately after sunset Muhammad Siddique and Bashiran were present on roof top of my house. I was sitting on a cot with my face towards east while Siddique was sitting on his cot facing towards west. We were talking and Bashiran was spreading beds on the cots.
There is a house in-between my house and that of Makhan towards east. This house is higher than mine and there is a Parda wall having holes therein on the top. Suddenly Makhan, Shera, Akbar and Gbarib Alam came on the top of the house of Makhan armed with guns. Makhan exhorted his companions to kill Boota and Siddique Makhan fired with his gun which hit my sister's son Siddique on his back. Second shot was fired by Gharib Alam which hit the deceased who fell injured.
' Thereafter all the appellants continued indiscriminate firing. I laid on the ground on the very first fire and in this manner I crawled down the steps in my courtyard. Muhammad Siddique who was injured had also laid followed me in the same manner. Makhan and others continued firing and they were raising lalkara that they will finish Boota and Siddique. We hid ourselves in the house.
Khushi Muhammad son of Dad, Bashir son of Ghulam who were sitting on their house-tops witnessed the occurrence. On account of fear of the culprits people took refuge in their houses and nobody intervened because Gharib Alam and Makhan and their party was very strong and were dangerous persons. I and Siddique and other members of the family remained hiding in the house.
At about sargivela when we climbed the roof top we saw Mst. Bashiran dead having fire-arm injuries on her person and the blood was still oosing."
5. Dr. Muhammad Aslam Arshad (P. W. 1) performed autopsy on the dead laxly of Mst. Rabia Bibi on 20-8-1968 at 6-00 p.m. He found two circular wounds ; one on the back of the left shoulder blade I' from inner border and 3' from upper medial angle. There was no blackening of the skin or clothings.
There was a corresponding wound of exit 1-3 x 1-4 on the front of right side of chest 1' from upper angle of exilla, with a superficial wound 1-8 x 1-3 in front of right upper arm in the middle. Second circular wound was of the same size measuring 1-3 x 1-3 on the outer side of left arm 2/1-2 above the elbow. There was no blackening of the skin or clothings. There was a corresponding wound of exit on the inner side of left upper arm 3" from the wound of entrance. Stomach contained half a pound of semi-digested dal and rice. Small and large intestines contained gases and faeces.
Bladder was filled to the extent of 1/3 with urine. Uteris contained a male feetus 5' long, 3 ounces in weight. In the opinion of the doctor she died of haemorrhage and shock caused by injury No, 1 inflicted with fire arm. Injury No, 2 was also the result of fire-arm. In his opinion, injury No, 1 was sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate (5 to 15 minutest and time between death and post-mortem was about 24 hours.
6. The same day at 4-30 p.m. He examined Muhammad Siddique (P. W.) and found the following injuries on his person:- "(1) An irregular wound of entrance 1-2 on the left side of back of lumber region 7/1-2 below lowest angle of scapula. Pellet was palpable on the right side at 2/1-2 distance on the side of chest. Pellet was removed, sealed into phial and handed over to the Police. Margins of the wounds were blackened and inverted.
(2) A superficial irregular wound j x on the back of lumber region in the middle at 2" distance from injury No,
1. Injury No, 2 was kept under observation. Injury No, 2 was simple in nature.
' Both injuries were caused by fire-arm. Later on injury No, 1 was also declared simple."
In cross-examination the doctor opined that blackening cannot be caused if the shot is fired beyond six feet. Digestion takes place normally in three hours time. The deceased might lame taken the food two hours before her death and this is the maximum time.
7. At the trial prosecution produced Boota (P. W. 9) a close relation of the deceased, Muhammad Siddique (P. W. 10) husband of the deceased, Khushi Muhammad (P. W. 11) tenant of Mehboob Ali with whom Gharib Alam had a long standing enmity, Bashir Ahmad (P. W. 12). Mehboob Ali's younger brother Yaqoob is married to the sister of this witness. The other three witnesses are s Amir Ali (P. W. 13) who was examined 2/1-2 months after the occurrence, he is also Mehboob Ali's man, Sher Muhammad (P. W. 16) has a direct enmity with Gharib Alam, and P. W. 17 is Mst. Rashidan wife of Sher Muhammad. The names of latter three witnesses do not figure in the F. I. R.
8. Makhan denied his presence and attributed his involvement owing to his enmity with Mehboob Ali Lambardar. He pleaded alibi before the Police that he was under arrest at the time of occurrence under section 13 of Arms Ordinance, 1965 in P. S. Laliani at 8.45 p.m. On 19-8-1968 for possession of illicit Revolver and cartridges. This alibi was found to be untrue on the application submitted by the complainant to the I.-G. Police. He denied his participation in the crime and attributed his false involvement owing to Boota being a partyman of Mehboob All Lambardar. Sher Muhammad was 70 years of age at the time of trial. He denied the participation in the crime and stated that he and Makhan accused were not on speaking terms. He could not join hands in the crime for nephew of Makhan accused had illicit relations with his daughter. Manna, nephew of Makhan accused, has been murdered and his son Rehmat was challaned for the murder of said Manna. Before the Committing Magistrate he complained of his weak eye-sight and stated that he could not fire owing to this defect. Gharib Alam denied the allegations of the prosecution. He stated that there was a severe political rivalry between him and Raja Khush Bakhtur Rehman and Syed Gauhar Hussain. Owing to their influence I have been involved. He pleaded alibi that on the day of occurrence he was at Lyallpur and on that day he met, Raja Sarfraz, Advocate and Mahr Muhammad Ali, Advocate there. The Deputy Superintendent of Police investigated the case and found him innocent, This fact is mentioned in report submitted by the Police under section 173 of the Cr. P. C. The Police did not arrest him. After eight months of the occurrence Raja Bakhtur Rehman and Syed Gauhar Hussain, who are members of the District Council and Division Council, got him challaned m this case through the Crimes Branch. In his defence Gharib Alam produced Syed Muhammad Aslam, D. W. 1, Mahr Muhammad Ali, Advocate D. W. 2 and Daud Muhammad Butt, S. I., D. W. 3 who investigated the case.
9. We have carefully gone through the evidence in the case with the help of the learned counsel for the parties. We are of the view that Boota,. Muhammad Siddiq, Khushi Muhammad and Bashir Ahmad are highly' interested in the complainant and inimical towards the appellants. Boota (P. W.
9) has brought up Muhammad Siddique (P. W. 10) and the deceased. He married them and was keeping them in his own house. Khushi Muhammad is a tenant of Mehboob Ali with whom Gharib Alam had a longstanding enmity. Bashir Ahmad's (P. W. 12) sister is married to Yaqoob, a younger brother of Mahboob Ali. The other three eye-witnesses Amir Ali, Shera and Rashida Bibi, P. W. 13, P.
W. 16 and P. W. 17 respectively are also interested and partisan witnesses. The testimony of the latter three-whose names are not mentioned in the F. I. R. Have to be ignored. As a rule of abundant precaution, we would like to have corroboration of the other three interested, and inimical witnesses. The learned Sessions Judge has also similarly held in his judgment, paragraph 11 at page 173 of the-Paper Book. Ch. Nazir Ahmad Khan, learned counsel appearing on behalf of the appellants referred to the testimony of Dr. Muhammad Aslam Arshad (P. W. 1) about the stomach condition of the deceased which contained half a pound semi-digested dal and rice and the statement of Muhammad Siddiq, husband of the deceased, who deposed that the deceased was eating rice when, he came to the house. The time of his arrival was little before sunset. He argued that the occurrence in the circumstances of the case had not taken place after sunset but at least two hours after the time given in the F. I. R. The doctor has opined that the deceased might have taken the food two hours before the death. The identification of the accused appellant, therefore, was not possible since it was a dark night and there is no allegation of any light by the prosecution on the spot at the time of occurrence. He further argued that the story of the prosecution is belied due to the blackening of the injuries of Muhammad Siddiq and the absence of any blackening on the injuries of Rabia deceased, who was said to be closer to the assailants from where they had fired. Absence of blood at two places belies the injuries of Muhammad Siddique at the spot as alleged since blood was recovered from one place during the investigation. Pointing out to the site plan Exh. P. H./1 he argued that presence of card-board on the roof of Nabi Bakhsh 92 ft. Away from the house of Makhan accused has negatived the prosecution story. Similarly presence of 22 wads on the roof of Makhan completely destroys the prosecution case because they could not be found at the back side of the place of firing. He referred to two judgments of the Supreme Court Wasi Ullah v. Mirza Ali (1) and Bagh Ali and 4 others v. The State (2) and argued that exceptionally strong corroboration is necessary where the eye-witnesses are interested. The ocular evidence should come from an unimpreachable source to carry conviction on capital charge.
10. On behalf of the complainant who has filed Revision for awarding capital punishment to Gharib Alam appellant we have heard Kbawaja Sultan Ahmed, Advocate at length for the entire prosecution case. He argued that it has been held in several cases that corroboration of interested witnesses is not invariably a rule of universal application and therefore the conviction should be based on the mere ocular testimony of the interested witnesses. He cited a Single Bench Authority Sobdar and others v. The State (3) in support of his submission but the learned Judge, the present Chief Justice of the N.-W. F. P. High Court has clearly held that corroboration of interested witnesses was not invariably a rule of universal application if the witnesses are reliable, conviction could be sustained on such testimony alone. He also cited Sohni v. Bahaduri (4). In this case it was held ' Proposition that testimony of interested witness requires independent corroboration not of universal application Reliability depends upon circumstances of each case and quality of evidence Court may convict if testimony of such witness is found reliable even without corroboration Necessity of corroboration, rule of prudence... ."
We are not persuaded with the submissions made by the learned counsel" for the complainant for we do not consider the eye-witnesses as reliable persons. They are inimical and interested. The Honourable Supreme Court has clearly laid down that rule of prudence should be applied and corroboration sought in such circumstances. We are also of the view that the ocular testimony is belied by the medical evidence in regard to the time of
(1) PLD 1963 SC 25 (2) PLD 1973 SC 321
(3) 1969 P Cr. L J 1473 (4) PLD 1965 SC 111 ' the occurrence which we have already discussed above. Learned counsel, for the complainant vehemently argued that stomach conditions do not, provide by itself an unmistakable time of death and no reliance should be placed on this type of evidence. He cited Ibrahim v. The State (1), Haji and others v. The State (2), Ibrahim and another v. The State (3) and Asghar v. The State (4) in support of his submissions. In Allah Bakhsh v. The State (5) it was held that in the absence of evidence that the deceased had eaten any thing prior to the occurrence nothing turns down on the mere statement that the deceased's stomach was found empty. In our view reliance was refused because there was no evidence of the deceased having taken food prior to the occurrence while in the instant case Muhammad Siddique has definitely stated so that when he came to the house little before sunset the deceased was taking rice. It was held in Ibrahim v. The State that contents of stomach of the deceased-time required for digestion may vary in certain circumstances. From the perusal of this case-law we are not inclined to hold that the opinion of the doctor in the instant case has altogether to be ignored for the ocular testimony clearly contradicts with that of the doctor and it has been definitely deposed by Siddique (P. W. 10) the husband of the deceased about the deceased having taken the food at the time of his arrival in the house a little before the sunset. This is not the only circumstance which belies the prosecution story but there are strong facts going against the prosecution and we are afraid we cannot give any benefit to the prosecution in the matter of appraisal of evidence for condemning the appellants. It was argued by the learned counsel for the complainant that there was no corresponding blackening or burning of the clothes, therefore, the argument of the defence raised in that connection has to be ignored.
About the absence of blood at two places he submitted that the injury on the person of Siddique was skin deep and the, pellet might have stopped the flow of blood and this argument is again improbable. Siddique had two injuries ; one was a superficial irregular wound and the other wound ha an entrance of . Absence of blood, therefore, does create a suspicion that he was not injured at the spot. It was submitted that the alibi of Makhan was found to be untrue on the application of the complainant; and the alibi of Gharib Alam is far-fetched and the defence witnesses have appeared before the police long after the occurrence and this circumstance proves their participation in the crime. Lastly Khawaja Sultan Ahmed, again reverted to the question of corroboration and cited Sharif and another v. The State (6) Nazir and others v. The State (7) and Niaz v. The State (8) and tried to contend that the circumstances could be good corroboration of the interested eye-witnesses. We have no quarrel with the proposition. The corroboration, need not be any recovery of incriminating article from the accused but the circumstances of the case which may satisfy the mind of the Court that witnesses have spoken the truth may be taken as a corroboration of the interested and partisan evidence. In the case in hand we are afraid we are not satisfied that the ocular evidence is from unimpeachable source and they are speaking the truth.
Various factors have weighed with us in coming to the conclusion that the accused have to be given the benefit of doubt. In our view there has been indiscriminate firing in the dark night by differentr
(1) 1969 SCMR 773 (2) 1972 P Cr. L J 465
(3) 1968 P Cr. L J 1784 (4) PLD 1958 Lah. 395
(5) 1968 SCM R 672 (6) 1973 SCMR 83
(7) PLD 1962 SC 269 (8) PLD 1960 SC 387 ' persons from different places. Some stray bullets have hit the deceased and Siddique and it could not be ascertained with certainty whose fire killed the deceased and injured Siddique. In coming to this conclusion we have not merely relied on the contradiction of the medical evidence with that of the ocular testimony, but this is one of the many factors which has created a cumulative effect on our minds that the prosecution has not brought home guilt to the accused. We,- therefore, accept their appeal, set aside their convictions and acquit them from the charges. In view of our decision in Criminal Appeal the revision for enhancement of sentence is dismissed.