1. MUHAMMAD HALEEM, J.-This appeal by special leave is against the judgment of the Lahore High Court dated 18th of June 1975, by which Criminal Appeal No. 603 of 1974 was dismissed and the capital punishment confirmed.
2. According to the prosecution Allah Bakhsh was the manager of the lands of Malik Zawar Hassan, a Deputy Commissioner. He resided at Chah Umarwala. On 23rd of July 1972, at about 7 a.m. He left for his fields. Riaz Hussain, his brother, and Mewa who had come to see him went alongwith him. On the way Khuda Bakhsh, Ghulam Abbas and Ghulam Qadir Kardar joined them, and for a while he conversed with Ghulam Qadir Kardar and then sat down on the bank of Nala Sikandri near the bridge. At 8 a.m. Ghulam Qadir son of Muhammada and Ghulam Rasul, the appellants herein, arrived there on a bicycle and leaving it near the bridge they came towards the deceased. Ghulam Qadir fired a shot from his revolver hitting the deceased on the head followed by Ghulam Rasul who fired his gun. Ghulam Qadir thereafter caught his hands while Ghulam Rasul cut his neck with a chhurra. They threatened those present there not to come to his rescue otherwise they would also be killed. Nevertheless, the companions of the deceased raised an alarm on which the appellants fled from there on their bicycles.
3. The motive imputed for the murder was that the appellants belonged to the party of Bhawan Shah who was ejected from a shop by the deceased who continued his efforts to get back its possession with the assistance of Malik Amir Bakhsh but was unsuccessful. It was to avenge that insult that the appellants fatally attacked the deceased.
4. Leaving the others at the spot Riaz Hussain proceeded on a bicycle towards Police Station, Mumtazabad, and at Kot Faqir A.I Shah he met Muhammad A.I, S. I., of that Police Station who had come there in connection with some investigation ; and the S. I. Recorded his statement which was treated as F.
1. R. In the case.
5. From the spot blood-stained earth and one live cartridge was taken into possession. Ghulam Rasul was taken into custody on 7th of July 1972, from the Court premises of the City Magistrate, Multan, while Ghulam Qadir was arrested on 11th of July 1972. Ghulam Rasul led to the recovery of a blood- stained shirt, shalwar and a chhurra from inside the shop which was locked and opened with the key produced by him. These articles alongwith the lock and the key were taken into possession.
6. Later he got a gun with a broken butt recovered from the bed of Nala Sikandari which had in its barrel a missed cartridge. Ghulam Qadir, on the same day that is 16th of July 1972, got recovered a revolver and one crime empty. Taj Muhammad alias Taju, the acquitted accused, also produced a revolver with six live cartridges and a bicycle from his house. As to the crime empty produced by Ghulam Qadir, the ballistic expert affirmed that it was fired from the revolver produced by him. In regard to the missed cartridge seized from the barrel of the gun there was no positive opinion. The earth, blood-stained clothes and the chhurra were found to be stained with human blood.
7. The deceased suffered fire-arm, blunt weapon and incised injuries.
8. At the trial the appellants denied the motive and their involvement in the crime. They further pleaded that as they had not supported Malik Nisar, the brother of Malik Zawar in the last elections, for a seat in the Provincial Assembly but had voted for the nominee of the People's Party, they bad been falsely implicated.
9. The prosecution examined Riaz Hussain, P. W. 10, Ghulam Qadir Kardar, P. W. 11 And Khuda Bakhsh, P.
10. W. 12, to furnish ocular testimony in the case besides other evidence was led to establish the recoveries of the incriminating articles. The trial Court noticed that it was nowhere stated in the F.I.R.
11. That the appellants were "disciples" of Bhawan Shah but despite it, it took into consideration the allegation that they were his "partymen" and, therefore, harboured a grudge to avenge the insult meted out to Bhawan Shah consequent upon his dispossession from the shop. As to the subsequent implication of Taj Muhammad the trial Court held that his name did not transpire in the F. I. R. And the explana--petition given namely, that his name was not mentioned as he did not actually participate in the killing of the deceased but had stood near the sand dune, was held to be flimsy. Accordingly, he was given the benefit of doubt and acquitted.
12. While evaluating the evidence the trial Court further held that except Riaz Hussain who was the brother of the deceased the other two eye--witnesses were disinterested as they had no malice against the appellants; and that there was no variation worth the name in their testimony qua the participation of the appellants. As for the variation with the medical evidence in regard to the fire- arm injuries on the head, the trial Court held that there was only one entry wound caused by the bullet fired from the revolver and the other injuries were out-let wounds as against the version of these witnesses that the gun shots also struck the deceased on the head. However, the seizure of the missed cartridge was held to be a satisfactory explanation for the gun having been used. In regard to the omission in the F. I. R. That Ghulam Rasul had hit the deceased on the head with the butt of the gun the trial Court held it to be insignificant omission in the context of an injury with a blunt weapon found by the doctor on the top of the head. Further the opinion of the doctor that the clothes and the body was mid-stained which apparently showed that it had remained immersed in muddy water for some time was also not given much importance as the trial Court accepted the explanation of Muhammad A.I, S. I., that there was lot of dust on it and that this impression in its view may have been caused by the body having been placed on ice. The trial Court rejected the evidence of the recovery of the revolver and the gun as the weapons were not established to have been used in committing the crime. As for the evidence in regard to the recovery of the blood- stained clothes and chhurra, the trial Court accepted it as it found no material discrepancy in it and held it to be a strong corroboratory circumstance against Ghulam Rasul. In the ultimate analysis it acted on the ocular testimony and the corroboratory evidence qua Ghulam Rasul in convicting the appellants for the murder of Allah Bakhsh under section 302 read with section 34, P.
13. P. C. And sentencing them to death.
14. On appeal and reference the High Court accepted the conclusion of the trial Court in affirming the convictions and confirming the death sentences. The High Court was mainly influenced by the fact that the eye-witnesses did not have any reason to falsely implicate the appellants and their counsel also conceded that the defence had failed to bring out any animus against the appellants in their cross-examination. In this connection the High Court held : "Therefore, we find it highly inconceivable that the complainant Riaz Hussain or other P. Ws., would involve the appellants without any rhyme and reasons unless and until they had seen them committing this crime. On the contrary if it would have been a case of blind murder as suggested by the defence, the first reaction of Riaz Hussain, P. W., would be to look for his enemies or the enemies of the deceased, when he would hold the likely persons responsible for this crime. If he would have mentioned the name of Bhawan Shah as one of the murderers, then it would have been considered as something natural on his part, for the simple reasons that this Bhawan Shah being a victim of an aggression by the deceased would be the most likely person to seek vengeance. In the instant case it is something beyond our comprehension that Riaz Hussain P. W.
15. Would fabricate a case against the present appellants who were most unlikely persons to become a subject of his suspicious mind, when it is the case of the defence itself that Riaz Hussain P. W. Had no ill will against the present appellants, in any manner whatsoever. We see no purpose with this witness to bring these appellants to grief. Therefore, we do not feel persuaded by the argument of the defence that the appellants in this case have fallen victim to capricious mind of the complainant as we find that if at all he had to involve some body on suspicion then his choice would be Bhawan Shah and not the present appellants who were small fries as compared with the master mind. We are fully convinced that in this case the prosecution has played a straightforward role by keeping Bhawan Shah out of the picture and have named those whom they saw committing this crime."
16. The High Court rejected the contention of the appellants that the occurrence did not take place at the stated time as according to the medical evidence death had occurred some 24 to 36 hours earlier to the post-mortem examination. It also did not give any weight to the contention that the only inlet wound on the head of the deceased belied the ocular version that the gunshot also hit the head of the deceased which in the view of the High Court was an error on the part of the prosecution witnesses as the shot might have missed hitting the deceased. As for the explanation given by the State Counsel that the lacerated wound on the head of the deceased was the result of the gun shot injury causing three outlet wounds as the bullet of .32 bore was incapable of making three outlet wounds, the High Court held it to be unacceptable as the witnesses had consistently stated that Ghulam Rasul had fired a shot from his gun.
17. The High Court accepted the finding of the trial Court - that the seizure of the missed cartridge was sufficient evidence of the gun having been used. As to the observation of the doctor that the body had remained immersed in the muddy water, the High Court held it to be an obliging admission for in that event the water would have also been noticed in the ear drums, throat pipe and stomach of the deceased, In this context the High Court accepted the conclusion of the trial Court that the muddy impression on the body must have been caused by placing it on ice.
18. Lastly, the High Court held the evidence to be credible and sufficient to sustain the guilt of the appellants.
19. Leave was granted to consider whether in view of the false implication of Taj Muhammad and the discrepancy between the medical evidence and the ocular testimony as to. The kinds of weapons used the conviction was consistent with the safe dispensation of justice. Pre-eminently, therefore, the question is one of re-appraisal of evidence. The prosecution has examined three eye- witnesses to furnish ocular testimony in the case. Riaz Hussain, the first eye-witness, lives 4 miles from Chah Umarwala and claims to have stayed in the house of the deceased on the night preceding the incident and to have accompanied the deceased in the morning when he went to his fields. He has not given any particular purpose for his visit nor has satisfactorily explained his failure to mention this fact in the F. I. R. He has also not assigned any reason as to why he had accompanied the deceased when he went to take a round of his fields. It seems to us that in the absence of any compulsive reason for having stayed away from his own house his presence appears to be highly suspicious particularly when his version is incompatible with the glaring features in the case. , According to the F. I. R. It were the appellants who had come on a bicycle but later in the evidence the complainant had implicated Taj Muhammad as the third assailant who had also come on a bicycle and stood near the sand dune armed with a revolver. In spite of his presence having been noticed we fail to see why Riaz Hussain had omitted to mention the name of Taj Muhammad on the premise that he had not actually participated in the killing of the deceased. It might be that later he was implicated on some secret information. Nevertheless it strongly suggests that if at all he was present he would not have failed to mention his name.
20. Again in no uncertain terms be has expressed that the shot fired by Ghulam Rasul from his gun hit the deceased on his bead which is belied by the discovery of one inlet wound on the head of the deceased. The Courts below have accepted that t he shot was fired but that it had missed the target. This would not be any explanation for the affirmative statement that it had struck the deceased on the head. Moreover, the Courts below have found support for this explanation from the seizure of the missed cartridge found in the barrel of the gun recovered from the bed of the Nala. The missed cartridge does not explode and, therefore, it cannot support the factum of the shot having been fired at the deceased. There is, therefore, no truth in the statement of the witness as to the gun having been used. Further, it goes to show that he had not seen the attack otherwise there was no possibility of making such a positive assertion.
21. Again, he has improved on his earlier statement by giving a reason which prompted Khuda Bakhsh to meet the deceased that fateful morning, in an attempt to establish his presence. Such an attempt hardly inspires confidence while judging his credibility.
22. The witness has further alluded to establish the challenge given by the appellants to the deceased before firing at him; and has also gone to the length of stating that Ghulam Rasul had hit the deceased on the head with the butt of the gun which was broken. He has failed to mention these facts in the F. I. R. And his subsequent assertion is an attempt to improve the case.
23. About the motive the witness has for the first time in his evidence --stated that the appellants were Mureeds of Bhawan Shah; and that further that Ghulam Rasul and Taj Muhammad received their education from him. Besides, the sons of Ghulam Qadir were his pupils. In the F. I. R. The appellants were merely described as party men of Bhawan Shah. And, therefore, the above assertion was made to add strength to the motive for as disciples it was likely that they would have taken an exception to the insult meted out to their "religious guide". The Courts below have acted on this statement in holding the motive to have been established for which there was no adequate reason.
24. It is also in his evidence that about. Three squares away one tractor and three ploughs were being used for tilling the fields. The ploughmen and the tractor driver were the servants of the Deputy Commissioner, Zawar Hassan. If these servants were working under the deceased then it was natural for them to have responded to the gunshots but it seems that none of them came to the spot. The indifference on the part of those persons and so also of this witness not to call them is again a feature which requires explanation for if at all the deceased was killed at that time it was natural that they would have also come to the spot either on their own initiative or at the behest of Riaz Hussain. Obviously, therefore, their absence also lends doubt to the assertion as to the time of occurrence.
25. The High Court has accepted his presence on the short ground that he had lodged the F. I. R.
26. Without any delay. This criterion could have been of significance provided the time of death was established but that is not so. As earlier observed the duration between death and autopsy was 24 to 36 hours. Besides the stomach of the deceased contained undigested food which was in the process of digestion and the large intestines contained feacle matter which showed that the deceased had not evacuated himself; and the bladder was empty. The presence of undigested food suggests that the deceased must have taken a full meal before his death. In the absence of any evidence to show that he had taken this meal early in the morning the probability is that it was the night meal and, therefore, this as well as the feacle matter in the intestines lend support to the estimation of time of death which might as well have been on the night intervening between the 2nd and the 3rd of July 1972.
27. Again this body- was found to be mud stained which the prosecution has not explained. The Courts below have acted on the assumption without there being any evidence that this impression must have been caused by the body having been kept on ice. Moreover, they have also held that this statement of the doctor was a loose observation. We may point out that it was a physical fact which was stated by the doctor and it could not be so described. Therefore, this feature could not have been lightly taken for it needed some positive explanation. It is difficult to surmise as to how the body became mud stained but this much can be said that it was consistent with the duration of time that it lay on the ground in the context of a possible struggle by the deceased having regard to the incised injuries on his body. Accordingly, it is not possible to accept as was stated by this witness that the deceased was killed at about 8 a.m. When his presence itself is doubtful. The High Court failed to consider this probability in its proper perspective while holding his evidence to be credible.
28. The next eye-witness is Ghulam Qadir Kardar. He was the servant of the Deputy Commissioner, Zawar Hassan, under the deceased. His evidence is also on the same footing as that of Riaz Hussain. The most significant feature about him is that although his name was mentioned in the F.
29. I. R. Yet he was examined on the next day. He has given an explanation that on seeing the police arrived at the spot, he left for his work and did not make any statement that day. This conduct appears to us to be wholly incompatible with his presence. If at all he was present and had waited for some hours till the arrival of the police, the urgency of the work could not be so important as to outweigh his responsibility to stay on in the context of the fateful event.
30. The last eye-witness is Khuda Bakhsh who has a cloth shop in village Khokharan. According to him he had come on the fateful morning to collect his dues of Rs. 114 from the deceased who had purchased cloth on credit sometimes back. Although this was the sole purpose of his visit it was for the first time that he stated this in his evidence. This innovation in his evidence is also not supported by the production of any account book. Accordingly, there is no support for his visit which renders it highly improbable. He has also towed the same line as the other two witnesses.
31. Therefore, his evidence cannot berated any higher.
32. The criterion adopted by the High Court for accepting the evidence of Ghulam Qadir and Khuda Bakhsh namely that the former was a Kardar and his presence was natural; and that the latter was absolutely disinterested and nothing bad emerged in his evidence to discredit him, is in disregard of the common version, beset with high improbabilities. As such this consideration cannot lend assurance to their presence at the time of occurrence.
33. As reasonable doubt attaches to the worthiness of the ocular testimony; we are not inclined to accept that they had witnessed the incident. The discrepancies in their evidence cannot be reconciled nor the time of death has been established as alleged beyond reasonable, doubt.
34. Apparently, it appears that the dead body was discovered in the morning whereafter the report was lodged charging the two appellants on suspicion, for, if that wail a not so then why was Taj Muhammad implicated subsequently.
35. Having held that it was an unwitnessed crime, the absence of any reason to falsely implicate the appellants does not carry any weight. The High Court seems to have been persuaded by this factor in accepting the ocular testimony with' which we do not agree. The recovery of the incriminating articles at the behest of Ghulam Rasul even if accepted would not advance the prosecution case any further in the absence of credible evidence to inculpate him. Accordingly, the prosecution has failed to establish its, case against the appellants who are entitled to the benefit of reasonable doubt and we acquit them.
36. By a short order we had accepted the appeals and ordered the appellants to be released in case they were not required in any other case. The above are the reasons for it.