' This appeal is preferred by Murawar Khan, son of Faiz Bakhsh, aged 30 years, Allah Dad son of Fazal Dad, aged 27 years, both Bhatti by caste, residents of Thatha Khalil, against the judgment dated the 9th of July 1975 of Mom Ghulam Ahnead, then Additional Sessions Judge, Rawalpindi, convicting the two appellants under section 302/34 of the Pakistan Penal Code with a sentence of life imprisonment and a fine of Rs, 1,000 or in default to suffer further rigorous imprisonment for one year each. In addition to this fine the appellants were also ordered to pay a sum of Rs, 1,500 each as compensation to the heirs of Basharat (deceased) under section 544-A, Cr. P. C. Two of their co- accused, namely, Muhammad Sabir and Muhammad Banaras were acquitted of this offence while the charge under section 307/34, P. P. C. Was not found proved against any of the four accused in this case.
2. The incident involving the murder of Basharat (deceased) and attempt on the lives of Nawab (P.
W. 7), his sister Mst. Sarwar Jan and his nephew Javed (both not produced) took place on the 15th of January 1973; at about 11-00 a. m. Near Bun Mianwali situate at a distance of one and a half miles to the north of Thatha Khalil.
3. The abduction of Mot. Shahzadan, a sister of Muhammad Sabir (acquitted accused) two years earlier by Muzaffar, a brother of Basharat (deceased) whose whereabouts were not known was put forth as a motive for this occurrence.
4. The report (ale. P. A.) was lodged by Nawab Khan (P. W. 7) with Sub-Inspector Raja Nusrat Ullah (P. W. 10) at 3-30 p. m. The same afternoon in Police Station Sangjani, situate at distance of about seven miles from the spot.
5. Nawab Khan (P. W. 7) stated in this report that his sister M31, Sarwar Jan wife of Muhammad Banaras was living along with her sons Basharat (deceased) aged 25 years, and Javed. Aged 21 years in a hired house in village Kala near `flotilla for over a year before this occurrence. On the eventful day he had gone to bring them to his house in Tnatha Khalil to celebrate Eid with him.
When they reached Ban Mianwali situate in the area of Thatha Khalil at about 11-00 a. m. They were accosted by Munawar, Allah Dad appellants each carrying a '12 bore pistol accompanied by Muhammad Sabir with a '12 bore gun and Muhammad Banaras empty-handed (the two acquired accused). Muhammad Banaras (acquitted accused) raised a lalkara that Basharat, the brother of Muzaffar (the abductor of their sister) had arrived and should be killed. On this Munawar and Alvah Dad appellants simultaneously fired from their respective pistols at bashatat hitting him in the front side of his chest and felled him to the ground. Nawab Khan (P. W. 7), his sister Mst. Sarwar Jan and his nephew Javed (both given up) receded in order to save their lives when Muhammad Sabir (acquitted accused) fired a shut at them from his 12 bore gun, but it went amiss. The reports of shots bad attracted Gulab (P. W. 8) and Safdar (P. W. 9) who witnessed this occurrence. On seeing them the appellants and their acquitted co-accused made good their escape whereafter Nawab Khan P. W. And others approached Basharat and found him dead.
6. After the formal registration of the case Sub-Tnspector Raja Nusrat Ullah (P. W. 10) proceeded to the spot and reaching there at about 7-00 p. m. In the evening he took into his custody the dead body of Basharat and secured some blood-stained earth from underneath it and sealed the same into a parcel vide &h. P. B. He then despatched the dead body to the mortuary along with its injury statement Exh. P. H. And inquest report Exh. P. G. Under the escort of Foot Constable Muhammad Akbar (P. W. 2). Exh. P. E. And its duplicate Exhs. P. E/1 and P. E/2 are the site plans which bear his notes in red ink as also his signatures in token of its correctness.
7. The Sub-Inspector arrested Muhammad Sabir (acquitted accused) on 19th January )973, Munawar appellant on 28th January 103, Muhammad Bananas (acquitted accused) on 7th February 1973 and Allah Dad appellant on 25th February )973.
8. On 16th January 1973, at 12-30 p. m., Dr. Muhammad Siddique (P. W. 6) held autopsy on the dead body of Basharat (deceased) and found the following injuries vide Exh. P. F:-
(1) Fire-arm wound of entrance slanting towards left 1/1-2 x 1/3-4 making fracture bole in 2nd and 3rd ribs deep into the cavity on right side of front of chest upper part 3" above the right nipple and at about 10 O'clock position 2' from the mid-line and 5' from the top of shoulder. The edges of the wound were inverted and badly lacerated and blackened.
(2)Multiple pellet holes from where some pellets had come out and some pellets in the wound under the skin on left side of chest 1/1-2 below left exillary pit in an area 5 x 3.
(3)Multiple pellet wounds on inner side of left arm below the axillary level in an area 3/1-4 x 3'.
(4)Lacerated fire-arm wound 2/1-4 x 2 fracturing the bones of thumb and index finger of left hand and the root of thumb and index finger on thumb side. Some area of palmer side of hand was included in the wound. The edges were black and plenty of gun-powder was present on the back of hand.
' Left pleura was badly damaged and lacerated, its cavity was full of blood about four pounds and seven pieces of wads and multiple pellets were found and removed. Right pleura was lacerated at multiple places and its cavity was full of blood about 2} pounds with pellets in. Middle and upper lobes of left lung were punctured at multiple places. Upper and middle lobes of right lung were badly lacerated with pieces of fractured ribs and wads. In his opinion the death was caused due to haemorrhage and shock as a result of extensive damage of right lung and left lung. The injury of right lung was sufficient in the ordinary course of nature to cause death. Injuries to the loft side of chest and arm were the result of exit of some pellets of injury No,
1. Injury to the left hand was grievous. All these injuries were caused by fire-arm and were ante-mortem. Time between injuries and death was immediate and between death and post-mortem was about 24 to 26 hours.
9. In addition to this medical evidence the prosecution had relied for its case at the trial on the testimony of Nawab Khan (P. W. 7), Gulab (P. W. 8) and Safdar (P. W. 9) for the ocular account of the occurrence, who had in general supported the above narration of the occurrence, while two eye- witnesses Met. Sarwar Jan, the mother, Javed, the brother of Basbarat (deceased) and Munawar, .
The identifier of dead body at the time of the post-mortem examination were given up as unnecessary.
10. The two appellants and their co-accused denied all the allegations made against them by these eye-witnesses and setting up a plea of false implication on account of their enmity with them pleaded not guilty to the charge. They, however, led no evidence in their defence.
11. Learned trial Judge rejecting outright their plea of false implication held the two appellants guilty of the charge under section 302/34, P. P. C., but acquitted all of them of the second charge under section 307/34, P. P. C., in addition to the acquittal of Muhammad Sabir and Muhammad Banaras (their co-accused) of the main offence as stated above.
12. The conviction of the two appellants Munawar Khan and Allah Dad were challeneged before me mainly on the following grounds:-
(a) That the first information report was recorded at the spot after preliminary investigation till late in the night which would negate its time and place as given in its relevant columns;
(b) that interested-cum-hostile witnesses were set up after having been imported from the distant village abadi as eye-witnesses of the occurrence;
(c) that the evidence of the alleged eye-witnesses was altogether rejected in respect of the charge under section 207/34, P. P. C. For an attempt on the lives of the prosecution witnesses and it was accepted only in part about the murder of Basharat (deceased) qua two of the four accused as the other two had been acquitted of the offence under section 302, P. P. C.;
(d) that there was an apparent conflict in ocular and medical evidence;
(e) that the legal requirements of material corroboration of such tainted evidence had been discarded;
(f) that the independent evidence was available which had been shut out for reasons not far to seek;
(g) that no independent witness was produced to prove the alleged motive; (I that there was even no circumstantial evidence to connect the appellants with the alleged offence like the recovery of any crime empty from the spot or weapon from either of them; (0 that the defence plea was sponsored during the earliest stages of the investigation, and given due support.
13. On going through the record with the assistance of the learned counsel for the parties I am persuaded to agree with the above contentions most of which are admittedly correct.
14. The drawing out of the first information report after night fall at the spot was confirmed by Gulab and Safdar P. Ws. Themselves. The former had deposed that he remained at the spot till the arrival of the A police in the company of Nawab P. W. At about night time when his statement was recorded about the present occurrence on which his thumb impression was got affixed in his presence. Safdar P. W. Bad also disclosed that the police recorded the statement of Nawab P. W. At the spot denying that he had thumb-marked it at the spot. He had, however, endorsed this fact before the Committing Magistrate but when confronted with the relevant portion at the trial he disowned it. He had, no doubt asserted in his examinaion-in chief that he had gone to the police station along with Nawab P. W. Mst. Sarwar Jan and Javed (not produced), but he had made no mention at all of the lodging of any report by Nawab P. W. At that place. Anyhow his statement before the Committing Magistrate had left no room for doubt that after night fall he and Nawab P.
W. Came back along with the police to the spot where the complainant narrated the occurrence to the Thanedar and thumb-marked his statement. The evidence of Gulab and Safdar P. Ws. Had thus contradicted both Nawab and the Investigation Officer about the time (3-30 p. m.) and the place (police station) of the recording of the initial report. It could, therefore, be safely concluded that the original complaint was the result of prolonged deliberations and a preliminary inquiry about the occurrence and even about the names of the eye-witnesses to be nominated therein which would lend grave doubts to the prosecution case as held in Abdus Sattar v. State (1) Azlz Jan and others v.
State (2) and Anwar v. State (3). In the last-mentioned case it was observed that the sanctity attached to the first information report would vanish in such a case.
15. It was almost a common feature of such deliberated reports that some dependable persons are set up as eye-witnesses to support it and only close relations and partisans can serve that purpose. It was certainly true of this case as Nawab (P. W. 8) was a maternal uncle and Safdar (P.
W. 10) a maternal cousin of Basharat (deceased) while Gulab P. W. Was one of their trusted partisans.
' Learned trial Judge was, however, led into an error that Nawab and Safdar P. Ws. Were equally related to the appellants which was apparently due to a belated claim made by Nawab P. W. At the trial. He had for the first time stated before him that Sabir (acquitted accused) was the son of his phuphizad sister which had to be taken as an afterthought as ho had neither mentioned this relationship with Sabir in his well-considered report nor his statement before the Committing Magistrate. Anyhow he had failed to substantiate the same when cross-examined by the defence as he did not know the name of his phuphi nor could give the number of the sisters of his father adding that he had never seen any of his sisters. He then tried to change his position by saying that the maternal grand-mother of Sabir (acquitted accused) was the step-sister of his father conceding at the same time that he could not say how many step-sisters his father had. He connected Safdar P. W. With the appellants through himself as he was the son of his another sister.
In his own statement Safdar P. W. Had, however, claimed no such relationship with the appellants.
Learned trial Judge had thus attached undue importance to this unsettled relationship.
(1) 1974 P Cr. L J 208 (2) 1974 P Cr. L J 367
(3) 1975 P Cr. L J 750 ' He was likewise misled about the independence of Gulab (P. W. 9) as he did not seem to have carefully scrutinized the statement of this witness wherein he had first denied his involvement in any criminal case, but when Sultan's murder was mentioned to him in cross-examination he scoffed it off as a 25 years old affair admitting at the same time that he was chagrined along with Banaras, the father of Basharat (deceased) and Nawab P. W. In that case; and that said Sultan was the relative of Munawar appellant who had also figured as an accused in the cross-case along with some of his other relatives. He had conceded in unequivocal terms that such eases were duly contested between them. Nawab P. W. Had exaggerated the period intervening between those cases and the present one fixing it at 20 years while in his statement before the Committing Magistrate with which he was duly confronted he had mentioned it as 10 years. This prevarication was intended to express his non-alignment although he was an old and tested partisan of Nawab P. W. And his other relatives. He had himself referred to some later criminal oases between the parties. One of these incidents involved the murder of one Ifzal in which Banaras, father of Basharat (deceased), Afaal (P. W. 4) and his father Jahandad were prosecuted. In the second occurrence Banaras, the father of Basharat (deceased) and brother of Nawab P. W. Was fired at by Munawar appellant and Banaras (acquitted accused) who were prosecuted and convicted in consequence thereof. In the stress of this probing cross-examination Nawab P. W. Had to confess that there was long-standing enmity on account of criminal litigation between the complainants parties including Gulab P. W. And that of the appellants.
' It might thus be due to his association with them through thick and thin that he had been confidently nominated by Nawab P. W. As one of the eye-witnesses.
16. Anyhow all three of them, namely, Nawab, Safdar and Gulab P. Ws. Resided in the abadi of the same village situate at distance of miles from the Bun Mianwali near which this occurrence had allegedly taken place. Gulab and Safdar P. Ws. Had admittedly come on the scene by chance at the relevant time and in order to show their presence at the spot at the time of the occurrence they had to invent some excuses. Gulab P. W. Stated that he had gone to the Bun with his cattle while Safdar P. W. Had urged that he was proceeding to Taxilla to make some purchases for Eid, which was never mentioned in the first infofmation report. If Nawab P. W. Had seen him there with his cattle and Safdar P. W. Had told him that he was proceeding to Taxilla for making such purchases when this unfortunate incident had taken place, it was not unlikely to expect from Nawab P. W. That he would have mentioned the same in the first information report. The appearance of such interested and inimical witnesses just by chance at such a crucial moment would not be free from doubt.
17. This doubt would magnify in case of such witnesses when their evidence is accepted only in part on the main charge as two of the four accused had been acquitted for the offence under section 302, P. P. C. And it was rejected in toto about that under section 307/34, P. P. C. Learned Judge had firmly ruled out the incident of allegedm urdorous assault by any of the accused on the prosecution witnesses, namely, Nawab and Safdar P. Ws. Or Mst. Sarwar Jan and Javaid (not produced).
' He had also found a strong element of improbability in the version put forth by these witnesses about it as Sabir whose sister had been abducted by Musatfai would not have spared Basharal (deceased) if he was himself amongst the assailants. He had rightly observed that Sabir was supposed to have acted with real determination, furiosity and venom by wrecking his vengeance on him, but he did not at all aim any shot at Basharat. It did not appeal to reason that he would leave the satisfaction of his sense of revenge to others and himself contend with ineffective firing on innocent persons. Moreover in the F. I. R. Sabir was attributed gunshots (not shot) and even if his intended victims were Basharat's companions (his other family members), there was not earthly reason for Nawab, Sarwar Jan and Javed at all to have escaped absolutely unhurt especially when they were not armed, and the three assailants including Sabir were having lethal weapons with them.
' Learned Judge in the opening lines of paragraph 10 of his judgment had also pointed out to a conflict in the oral and the medical evidence in view of the alleged number of shots fired as also the nature and direction of the injuries suffered by the deceased. He had concluded of course rightly that in all probabilities Basharat (deceased) was hit by a single shot only, while according to the first information report both Munawar and Allah Dad appellants had fired one shot each, both of which hit him (Basharat) in his chest. In cross-examination the witnesses when questioned about the direction of these shots had insisted that both of them had fired at Basharat (deceased) from his front while the course of the misilo as indicated by the doctor was from the right to the left of his chest which is inconsistent with the assertion made in the F. I. R. The closer examination of the inlet wound was indicative of the fact that the fire-arm was almost placed on the chest before pressing its trigger to kill the victim and the absence of any smoking or blackening around it and the entry - enmesh of all the pellets through a small hole 1/1-2 x 1/1-4 along with seven pieces of wads was an eloquent testimony to confirm this conclusion. This feature of the wound also belied the eye-witness who gave the distance between the assailants and their victim as 2 feet when the latter was hit by the shots fired by them from their respective '12 bore pistols. The other companions of Basharat were following just behind him if the one shot had been consumed by Basharat the other shot must have caused injuries to some of them a they were in the same range but the absence of any injury on either of them would negate their presence at the spot. This apparent inconsistency in 0 the medical and ocular evidence will undoubtedly impair the credibility of these witnesses. Saindad v. The State (1), Bagh All v. The State (2) and Khan Muhammad v. The State (3) are some of the authorities on this point.
18. In fact all the infirmities pointed out above in their evidence called for a material corroboration from some independent confirmatory circum stance which was badly lacking in this case. This rule of prudence has been consistently adhered to by the Judges of the superior Courts in their judgments like the case of Sohni v. Bahadurl etc. (4) and Bagh All v. The State. It was observed in the latter judgment that the ocular evidence in order to carry conviction on a capital charge must come from an unimpeachable source and must be supported from some strong circumstance.
(1) 1972 SCMR 74 (2) PLD 1973 SC 321
(3) PLD 1976 SC 303 (4) PLD 1965 SC 111 ' Even the medical evidence although consistent with the ocular account was not considered a sufficient corroboration of such tainted evidence in Machhia's case (1) wherein their Lordships observed as under:- "Medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies."
' In the case of rejection of prosecution evidence about some of the accused the requisite corroboration was insisted upon with more emphasis as in Gul Sher v. State (2) wherein only one of the four accused had been acquitted. Niamat v. State (3) was also on the same point. This legal requirement was further highlighted in a still later case Re : Ghulam Muhammad v. The State (4) in the following terms:- "In view of the acquittal of seven out of ten accused for the maintenance of conviction of the three appellants on the basis of the testimony of interested witnesses, insistance on independent corroboration becomes all the more imperative."
' In this case learned State Counsel sought to rely on the motiveas an important factor which brought the two appellants and their co-accused together to embark upon this enterprise, but it had no corroborative force as it bad come on record from the mouth of the same complainant who had failed to inspire confidence about the main incident detailed by him like the other two eye-witnesses. In fact the evidence of one set of biased witnesses could not corroborate in law that of the other biased witnesses as held in Muhammad Husain Qureshi v. The Crown (5) and Mst.
Kaisari v. Sarkar (6).
' Even the alleged abduction of Mst. Shahzadan bad taken place two years earlier but no untoward incident had taken place between the parties during this long interval. Neither any report had been lodged with the police nor any complaint had been lodged in any Court about it, so there was no cogent evidence about it either.
' There was no circumstantial evidence either like the recovery of any empty or pellets from the spot or that of any fire-arm connecting either of them with the alleged crime was missing which had taken the sting out of the entire case.
19. In fact some independent evidence was available to provide the requisite corroboration as admitted by Nawab (P. W. 7) himself by disclosing that Dhok Durab and Dhok Ditta were only at a distance of 100 yards from the place and soon after the occurrence some people had gathered at the spot who saw the accused going away from there with their respective weapons but none of them was cited as a witness in this case. Gulab (P. W. 8) had also deposed that 10 or 20 persons had reached the spot before Nawab, Safdar P. Ws. And Javed (not produced) had left for the police station and that all of them informed those persons that the present
(1) PLD 1976 SC 695 (2) 1968 SCMR 756
(3) PLD 1970 SC 13 (4) PLD 1975 SC 588
(5) PLD 1954 Lab. 127 (6) 1973 P Cr. L 1156 appellants and their cc-accused had murdered the deceased and run away. On the basis of this concession it was successfully urged that the evidence from the vicinity of the crime had been purposely shut out in this case and Sikandar v. State (I) was pressed in as an authority to support this contention. I he exclusion of better evidence from the locality of the crime was also disapproved in Bashir Ahmad's case (2).
20. In this case counter version appears to have been sponsored by the defence at the initial stages of the investigation. It was admitted that Basharat (deceased) had other enemies in the village as well and that the real culprit was one Tufail which assertion was supported by a large number of persons examined by the Sub-Inspector and some other persons were also joined during the investigation of the case as conceded by him at the trial. It was on account of this factor perhaps that the arrest of the appellant was put off for quite some days for which no explanation was coming forth from the side of the prosecution.
21. All these baffling features of the case did not permit of any credence in the evidence led about this occurrence as it was replete with grave doubts, the benefit of which could not be denied to the appellants. I have, therefore, to accept this appeal and setting aside the conviction and sentence of these two appellants as well, direct that they shall be set at liberty forthwith, if not required in any other case.
(1) PLD 1963 SC 17 (2) 1974 P Cr. L J 385