' The appellant has challenged the validity of impugned judgment, dated 16-3-1999 passed by H- Additional Sessions Judge, Dadu in Sessions Case No,114 of 1988 (The State v. Mumtaz and Ayoob) under section 302/201/34, P.P.C., arising out of Crime No,34 of 1988 Police Station Mehar, whereby accused Ayoob was acquitted and the present appellant Mumtaz was sentenced to suffer imprisonment for 20 years.
2. The brief facts as narrated by complainant Ghulam Nabi are that his amount of Rs,3,000 was outstanding against Rasool Bux Khooso. On 19-2-1988 appellant Mumtaz alongwith his brother Ayoob came to their village and stated that Ghulam Sarwar should accompany them to their village so that some cattle may be handed over to him against the outstanding money. Upon which complainant sent his son Ghulam Sarwar, Muhammad and Ishaque to the village of appellant. It is alleged in the F.I.R., that at about 4-00 a.m. Night P.W, Muhammad Khoso and Ishaq informed the complainant that while they were sleeping at the village of appellant accused Naban, Mumtaz and Ayoob came their at about 3 a.m. Appellant Mumtaz and Ayoob were said to be armed with shot guns. They took Ghulam Sarwar saying that they were falsely claiming a cattle, therefore, they would murder him. All the 3 accused allegedly dragged Ghulam Sarwar to their house where Mumtaz and Ayoob fired with their shot guns at Ghulam Sarwar who scummed to injuries. They further informed the complainant that later on they threw dead body at some greenery and they have come to convey this information to him. The complainant went to P.W. Haji Ali Muhammad and Ghulam Qadir. Thereafter, he went to village of appellant and found his son dead at the distance of 50 paces from village.
3. The police took up investigation and submitted challan on completing the investigation.
4. At the trial prosecution examined Ghulam Qaciir P.W.1, Dr. Mazharuddin P.W.2, Muhammad P.W.3, Muhammad Ishaque P.W.4, Tapedar Wazir P.W.5, LNC Ghulam Abbas P.W.6, Haji Ali Muhammad P.W.7, process server LNC Rustam P.W.8, Mashir Pathan P.W.9 and Qazi Ashfaq Ahmed P.W.10.
5. The Trial Court ultimately came to the conclusion that prosecution has been able to bring home the guilt of accused/appellant Mumtaz and he was awarded the sentence in terms stated above.
However, the co-accused Ayoob was acquitted.
6. It is contended by Mr. Azizullah K. Shaikh learned counsel for appellant that co-accused Ayoob has been acquitted in regard to whom the same set of evidence has been disbelieved and the present appellant is convicted. It is contended that ocular evidence of P.Ws. Muhammad and Muhammad Ishaq does not carry any weight as they do not belong to the village where incident has occurred. The story that the said witnesses had accompanied deceased to the village of accused for collecting money or taking the cattle does not appeal to sense. Learned counsel argued that the story as set up is improbable and unbelievable in regard to the presence of P.Ws.
At the relevant time of incident as well as the version that at 3-00 a.m. Appellant Mumtaz alongwith his father Naban and co-accuse Ayoob came and took deceased Ghulam Sarwar in their house where he was fired at by appellant as well as his brother Ayoob. Learned counsel stressed upon the fact that on seeing this incident, the witnesses raised no cries and did not inform any of the villager but instead of that went to the village of complainant for conveying him information. It is further urged that F.I.R., is delayed by about 3 hours whereas the distance of police station is only 4 miles.
Learned counsel contended that initially in F.I.R., other accused were nominated in which Naban was one of them, who was subsequently let of by the police. The role of accused Ayoob was changed and the diversion was given to- it that he was armed with Danda but not with shot gun.
Both the said witnesses had contradicted each other and have given twist to their depositions.
7. He next argued that in corroboration of above two witnesses on which the prosecution has been relying upon is the recovery of gun and empties allegedly made from appellant Mumtaz. The said gun was a licensed one and two empties were also produced by him. Nothing incriminating was recovered from vardat. Accused Ayoob is said to have produced lathi. The said articles were taken under the cover of mashirnama.
8. The third piece is that of motive which is to the effect that deceased had gone to collect money owed by appellant. It is contended that so far recovery is concerned it is of no consequence as no empty was recovered from vardat and the said gun was licensed one. The motive as alleged is unbelievable and improper as at least for two eye-witnesses viz. Muhammad and Muhammad Ishaq had no reason to be at the vardat for collecting money or taking the cattle from accused.
The subsequent conduct of these two witnesses is also attacked by the learned counsel. The P.Ws.
Are all relatives of deceased and they are chances witnesses. The learned counsel argued that the deceased was dacoit and he was killed by his companions. He has drawn my attention to a newspaper lying on record. The news is printed that dacoit Ghulam Sarwar was murdered by his companion near village. No blood-stained earth was secured by the police. He placed reliance on 1995 SCM R 599-733 and 1997 SCM R 254.
9. Mr. Javeed Akhtar learned State counsel has supported the impugned judgment and argued that ocular evidence inspire confidence and the same is substantiated by the medical evidence. It is contended that corroboration is not necessary as the ocular evidence consisting of these two witnesses is sufficient to carry conviction and much importance is attached to the testimonies of said witnesses. It is stated that the relationship of P.Ws. With deceased does not disqualify them to be the trustworthy witnesses. He has contended that there are discrepancies and lapses on the part of prosecution but the same are insignificant and no importance can be attached to them. He has placed reliance on PLD 1971 SC 541, PLD 1977 SC 413, PLD 1980 SC 649 and 1971 SCM R 326.
10. The record reveals that initially F.I.R., was recorded by Ghulam Nabi the father of deceased.
Although he was not an eye-witness but the F.I.R., was recorded on the basis of information conveyed to him by the said two witnesses Muhammad Ishaq and Muhammad. The F.I.R., indicates that three accused Naban, Ayoob and Mumtaz had dragged Ghulam Sarwar to their house.
Accused Mumtaz and Ayoob fired at him by their shot guns. Later on, the dead body was thrown at some greenery place. The police during investigation let of accused Naban and so far the version of Ayoob having been armed with shot gun and fired at deceased has also been changed subsequently and it is stated by the said P.Ws. In Trial Court that he was armed with lathi. The mashirnama of scene of offence is perused which reveals that nothing incriminating including the empties and blood were collected by the police. Even the cots where the two witnesses and the deceased are said to be sleeping were not seen by the police. The complainant has died and he could not be examined in the Trial Court. Evidence of P.Ws. Ghulam Qadir and Haji Ali Muhammad is disbelieved by the Trial Court being the hearsay and the same was discarded. The two eye- witnesses do not belong to the village where incident has taken place. They have deposed in the Court that deceased was directed by his father to collect money from accused and they were requested by the complainant, to accompany his son. This version itself cast doubt on their testimony as to why they should accompany the deceased to the village of accused. The accused next piece of their evidence that at about 3-00 a.m. Accused came and took deceased Ghualm Sarwar with them that he should accompany them to their house for collecting the money is also unbelievable and does not appeal to prudent mind. The subsequent conduct of these witnesses that the accused near the door of their house fired at deceased, killed him and entered the house but the witnesses neither raised any commission and cries nor informed any of the villagers. None of the villagers is said to have been attracted by the fire shot. They simply proceeded to the village of complainant leaving the dead body unattended and apprised the complainant of the aforesaid facts. The fact that they are chance witnesses and had no reason to be present on the scene of offence cannot be ruled out. The newspaper is found on the record in which a news was printed to the effect that dacoit Ghulam Sarwar was murdered by his companions near the village of Pipry.
The said newspaper find place in record but cannot be taken into consideration as the same is not produced in evidence either by prosecution or defence. The relationship of P.Ws. Is admitted with the complainant. P.W. Muhammad has stated that P.W. Ishaq is his masat (maternal uncle). He has further stated that he is cousin of complainant. P.W. Muhammad Ishaq has stated that Mashir Pathan is the son of cousin of complainant. Though mere relationship of the witness is not the disqualification to be a witness of the incident if otherwise the evidence is found to be truthful but in this case the reasons stated above have disturbed me very much and their testimony is not as good which could carry capital sentence. They have changed their versions at various stages and made dishonest departure from their previous version. They are basically dishonest. Reference can be had to a case of Abdul Rehman v. Fateh Sher and 8 others 1996 SCM R 176 wherein their lordships have held as under:--- "On our independent examination and assessment of the evidence on record we find that the reasons given by the High Court for disbelieving motive and the ocular evidence are supportable from the evidence on record. The reason are neither ridiculous nor artificial. The impugned judgment is not a perverse judgment. It cannot be said that the view taken by the High Court of the evidence on record could not be conceived by any reasonable and prudent person. In the F.I.R., and statements under section 161, Cr.P.C., the eye-witnesses had claimed to have seen Fateh Sher firing from rifle which hit Muhammad Zaman P.W. Since the injury of Muhammad Zaman was caused by pellet and not by bullet, the eye-witnesses, while making a dishonest departure from their previous statements, substituted Ghulam Abbas in place of Fateh Sher and also changed the weapon from rifle to a gun. It is, thus, very much clear that the eye-witnesses have given evidence with motive other than that of telling the truth, so they are basically dishonest witnesses. The rule of prudence requires independent corroboration of their statements qua each accused which is not available."
11. The same view was earlier laid down by apex Court in the case of Haroon alias Harooni v. The State and another 1995 SCM R 1627 wherein it was held as under:-- "Mere fact that a witness is neither related to the complainant nor inimical towards the accused does not stamp his testimony necessarily with truth. Acid test of the veracity of a witness is inherent merit of his own statement. Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule, however, is that the statement of a witness must be in consonance with the probabilities, firing in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then 'the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing then statement of a pious man may be rejected without second thought."
12. The corroborative piece of evidence relied upon by the prosecution is recovery of a gun and two empties from appellant Mumtaz. Admittedly the gun is licensed one and no empty was found from the vardat so that it could be a corroborative piece to the gun allegedly used in commission of offence. Even the blood was not found from the vardat as stated earlier. The alleged recovery .Was made on 29-2-1988 and the same was received by the office of expert on 5-12-1988. The chemical examiners report reveals that the clothes of deceased were stained with human blood. The said two reports are of no consequence as neither anything was recovered from scene of offence nor was any metallic substance detected from the body of deceased so that there could be some match to the alleged gun and empties recovered from the accused. Mashir Pathan is cousin of complainant and brother of P.W. Ishaq as stated above. More over the Investigating Officer has died his natural death and could not be examined in the Court. The mashir has not given dates of particulars of said recovery. The reference can be had to a case of Muhammad Iqbal v.Abid Hussain alias Mithu and 6 others 1994 SCM R 1928 wherein their lordships have held as under:--- "When we talk of corroboration, it is always required with regard to the version of the prosecution and with regard to the identity of each accused. Since no empty was recovered from the spot, therefore, the recoveries of fire-arms from the accused/respondents are of no consequence. The medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence, duration between the injuries and the death and the presence of the injured P.W. Or the accused on the spot, but it would not connect the accused with the commission of the crime. The factum of the presence of the witnesses being natural would establish their presence on the spot but would not take the prosecution case any further. The three eyewitnesses were not believed by the Trial Court to the extent of the charge of the murder of Shahzad Akhtar, so all the accused were acquitted of this charge. The absence of enmity of the eyewitnesses with the accused would also not stamp their statements with truth."
13. The other piece of evidence is that of motive. The deceased had gone to collect money from appellant along with aforesaid two eye-witnesses. The evidence of these two eye-witnesses is disbelieved so far the acquitted co-accused Ayoob is concerned. 3oth of them have changed their version and even up the presence of Naban at the vardat.
' They changed their versions by saying that co-accused Ayoob armed with lathi and not gun as stated by them to complainant. The motive has come from the mouth of same witnesses, whose evidence require corroboration and their testimony is not credible. The reference can be had to a case Rasool Bux and another v. The State 1980 SCM R 225 wherein their lordships have held as under:-- "Mr. Muhammad Sadiq Warraich submitted that the prosecution evidence about the motive for the murder was not fit to be believed, because the alleged motive was the dispute on the previous day between Kauro and Allah Warayo's son, whilst, according to Allah Warayo, the appellants and Soomar had attacked and chased him and had killed his son only because he happened to come in the way whilst they were chasing Allah Warayo. The submission is correct, and the fact that the motive attributed by the prosecution for the crime is so flimsy will be relevant to the question whether the first appellant had made a premeditated attack on Ghulam or whether he had attacked him."
14. Under these circumstances the prosecution has failed to bring home the guilt of appellant and the sentence cannot be sustained which is hereby set aside. The appeal is allowed and the appellant shall be released forthwith if not required in any other case.