ATTAULLAH Versus THE STATE

This judgment will conclude two criminal appeals No. 22/1986 filed by Attaullah and Akhtar Nawaz against their conviction and Criminal Appeal No.9/88 brought by the State to challenge the acquittal of Banaras, Akhtar Mehmood and Sultan Mehmood as through the impugned judgment of the learned Additional Sessions Judge, Haripur dated 5‑8‑1987 the former were convicted under Section 302/307/34 P.P.C. while the latter were acquitted of the same charge. The appellants were found guilty of the murder of Sher Mohammad and attempted murder of P.W. 7 Mir Afzal and were accordingly convicted under section 302/34 P.P.C. and each one of them was sentenced to imprisonment for life and under section 307/34 P.P.C. each one was awarded 4 years' R.I. They were also ordered to pay a fine of Rs. 5,000 each, which on recovery will be payable to the legal heirs of the deceased in terms of Section 544‑A Cr. P.C. or in its default each was to suffer two years.

2. P.W. 7 Mir Afzal is the first informant in this case who in his report lodged on 13‑3‑1984 at 19‑10 stated that on return from Bazar to his house at Digar Vela when he, his brother Sher Mohammad deceased and Attaullah (appellant) of his village reached a place known as "Patna", there Attaullah called out Akhter Nawaz (appellant), Banaras, Sultan Mchmood and Khalid Mehmood (acquitted accused). It was further alleged that accordingly Akhtar Nawaz and Banaras came out armed with shot‑guns while Sultan Mehmood and 'Khalid Mehmood emerged with pistols. Attaullah also ran and brought a shot‑gun with which he fired one shot at the accuser which hit him in his chin and wounded. Sultan Mehmood and Khalid Mehmood then fired with pistols while Akhtar Nawaz and Banaras fired with shot‑guns at his brother which injured him. Taj Mohammad P.W. 8 was named as eye‑witness while a strife between Attaullah (appellant) and the informant was shown as motive for the crime. Sher Mohammad then succumbed to his injuries the same day at 19.20 p.m.

3. It will be relevant for better understanding of the case if the relations of the appellants and acquitted accused inter se and with the deceased are given at this stage. Attaullah appellant No.1 and acquitted accused Banaras are brothers while Akhtar Nawaz appellant No .2 is the son of their brother and the other two acquitted accused Sultan Mehmood and Akhtar Mehmood are their sisters' sons. The informant P.W. 7 is the real brother of the deceased and according to him the eye‑witness Taj Mohammad is so related to them. "The daughter of Taj Mohammad son of Ghulam is married to my brother Ghulam Khan. He is P.W. My mother is paternal‑aunt of Taj Mohammad P.W. My sister is the wife of Rasul Khan, the younger brother of Taj Mohammad P.W."

4. Brief summary of the material witnesses examined by the prosecution is as under. P.W. 1 is Dr. Iqbal who examined the injured witness Mir Afzal P.W. and performed post‑mortem examination on the dead body of the deceased. He discerned the following injuries on the body of Mir Afzal:‑

(1) Fire‑arm entrance wound on front of chin size 1‑1/2" X 1/4" bone deep.

(2) Fire‑arm exit wound on the right side of chin size 1" X 1/2".

The same doctor also carried out the post‑mortem examination of the deceased and detected the following wounds on his external examination:‑‑

(1) Fire‑arm entry wound just above the anterior lateral surface of left elbow joint size 1/2" X 1/2".

(2) Fire‑arm entry wound 2" above No. 1 size 1/2" X 1/2" left humerous bone fractured.

(3) Fire‑arm exit wound to injury No.l on postero medial surface of left upper arm at level of wound No. 1 size 1/2" X 1/4".

(4) Grazing wound on the lateral surface of middle of left upper arm, size 1‑1/2" X 1/4".

(5) Fire‑arm entry wound on left anterior axillary line size 1/4" X 1/4" X cavity deep in tenth inter‑costal space.

(6) Firearm entry wound on left axillary line 5" below No.5 size 1/4" X 1/4" X cavity deep.

(7) Fire‑arm entry wound 1‑1/2" left lateral to midline, size 1/4" X 1/4" cavity deep situated 5" below xyphisternum.

(8) Firearm entry wound on left iliac fossa 1" medial to anterior superior T iliac spine, size 1/4" X 1/4" X cavity deep.

(9) Fiream exit wound to injury No. 8 on back left buttock size 1/2" X 1/2".

On internal examination the doctor also found walls of the thorax, ribs cartilages, left pleaurae, left lung and blood vessel around left lung, abdominal wall, peritoneum, left domb of diaphragm, stomach, small intestines, large intestines, liver and spleen injured. Tenth thorasic vertebra were also found fractured. Stomach was empty. In cross‑examination this witness stated, "All the injuries on the person of the deceased were possible by one fire‑shot of shot‑gun when the pellets spread". P.W. 5 Ramzan is the hotel‑keeper in whose hotel an altercation had ensued between Attaullah appellant and the complainant and the deceased at Diger Vela on the day of occurrence. In his statement he said that Attaullah was present in his hotel when the deceased and the complainant came there. Attaullah complained to them on which an altercation took place between them and he and others intervened and separated them. He was in fact produced to prove motive. Riasat Khan P.W. 6 whose mother and the wife of the deceased are sisters was examined to prove the various recoveries. He is marginal witness of recovery memo. Ex.P.W. 1/6 whereby two empties of .12 bore, Bajri and stone were taken into possession. In his presence Akhtar Nawaz accused while in custody led the police to his cattleshed and pointed out a shot gun which was taken into possession through memo. Ex.P.W. 6/2. Similarly, Ex.P.W. 6/3 is also signed by him as a marginal witness which was prepared in respect of the recovery of .32 bore revolver recovered at the instance of Akhtar Mehmood acquitted accused while in custody. Mir Afzal, the complainant, appeared as P.W.7 who first gave the motive in the manner as given by P.W. Ramzan and then narrated events leading to his injuries and the murder of his brother. In this context he stated that at Digar Vela he and his brother Sher Mohammad deceased had come to Bazar and when they were taking tea in the hotel of Ramzan, Attaullah accused was already present. Attaullah called this witness and complained as to why he had dubbed him as fraud before his nephew. This resulted into an altercation and grappling and when they were separated by Zarin and Ramzan then Attaullah left the hotel. After sometime when the witness and the deceased also left the hotel he saw Attaullah going ahead of them and was followed by P.W. Taj Mahammad. Attaullah accused raised row calling Akhtar Nawaz, Banaras, Akhtar Mehmood alias Khalid Mehmood and Sultan Mehmood and he also entered the house of Taj Mohammad (father of Akhtar Mehmood and Sultan Mehmood acquitted accused). All the five came out and out of them Akhtar Nawaz, Benaras and Attaullah were armed with shot‑guns while the other two were having "Tamancha". Attaullah initiated the attack and fired a shot at him which injured him on his chin and on his direction all the remaining accused fired at the deceased with their respective weapons who received injuries and fell down. It was alleged that all this was witnessed by Taj Mohammad. He then left for the police station in tonga. While the deceased was taken by Taj Muhammad etc. to the hospital. After the report he was carried to the hospital for treatment of his injuries. P.W. 8 Taj Mohammad stated that on the fateful day he was going from Haripur Bazar towards his village and noticed that the convict Attaullah was going ahead of him while P.W. Mir Afzal and the deceased were following him. Near the house of Taa Mohammad accused Attaullah called out that Sher Mohammad and Mir Afzal had arrived. Attaullah also entered the house and then came out with a shot‑gun followed by Banaras and Akhtar Nawaz armed with shot‑guns and Akhtar Mehmood and Sultan Mehmood with pistols. This witness then narrated the firing and the injuries in the same sequence as deposed to by P.W. Mir Afzal. P.W.7 Afsar Khan is the Investigating Officer who made statement in respect of all the steps he had taken in the investigation of the case and described the various recoveries effected by him.

5. All the accused when examined under section 342 Cr. P.C. pleaded complete innocence, termed the prosecution against them as false, concocted and instead of making statement under section 340 Cr. P.C. submitted written affidavits.

6. The learned trial Judge found the convict‑appellants guilty as in their case it was held that the ocular account of the eye‑witnesses is supported by material evidence and it was observed that against Akhtar Nawaz appellant the prosecution case finds support from the recovery of shot‑gun at his pointation and the positive report of Arms Expert in respect of the empties recovered from the spot having been fired with this shot‑gun. However, as regards the other three acquitted accused the deposition of the eye‑witnesses was discarded being without corroboration.

7. We have gone through the entire record with the valuable assistance of the learned Advocates representing the parties.

8. The learned counsel arguing for the appellants submitted that the learned trial Judge has legally erred in basing conviction on the partisan, interested, unnatural and unreasonable deposition of the eye‑witnesses without any legal and believable confirmatory evidence. He described the prosecution case as false and concocted which, according to him was neither confidence inspiring nor of the quality to sustain conviction .in crime involving capital punishment. The learned AA‑G. while arguing for the State and Mirza Abdullah Jan Advocate in his address on behalf of the complainant side supported the impugned judgment in respect of the convicts but submitted that the acquittal order of the co‑accused and respondents was not legal and, therefore, urged that the State appeal against their acquittal may be accepted.

9. At the very outset we would like to point out that the learned trial Judge has rightly discarded the prosecution evidence as against the acquitted accused, firstly, on the ground as it has put, "Admittedly Sher Mohammad deceased had not taken part in the quarrel of Mir Afzal complainant and Attaullah accused which formed basis for the incident. Therefore, there was no occasion for A Banaras, Akhtar Mehmood and Sultan Mehmood to join hands with Attaullah in order to kill Sher Mohammad deceased," secondly, there was no corroboration of the ocular testimony as against them. However, we are unable to approve the finding of the trial Court that the evidence of the eye‑witnesses is independent, credible and irrefutable as against the appellants and that it finds support from the recovery of the two crime empties from the spot, the recovery of shot‑gun at the pointation of Akhtar Nawaz and the ultimate positive report of the expert. Mir Afzal is not that independent witness as he is the real brother of the deceased and on his own admission he had a quarrel with Attaullah and that, "we have previous enmity with the accused", therefore, his deposition must have intrinsic value and for that must not suffer from intentional material improvements, should not be unreasonable, baseless, and inherently improbable. His testimony is to be judged on this guideline and standard and cannot be accepted on the sole ground that he had received injuries in the quarrel because that may be an indication of his presence on the spot but never an affirmative proof of his credibility and truth. The other eye‑witness P.W. 8 Taj Mohammad, as has been explained above, is very close relation of the deceased and, moreover, he is entirely a chance witness as he had no business to be there at the relevant time and he has not been able to satisfactorily explain his per chance meeting with the complainant on way to their village which is at a distance of 2/2‑t /2 furlongs from the spot. Therefore, his statement will (e scrutinized carefully and can only he accepted for conviction if it finds corroboration from other reliable material on record. In the F.I.R. Mir Afral stated this much about the motive, but in his Court statement improved upon it by introducing place of that strife to be the hotel of Ramzan P.W. 5 and the time of quarrel just preceding the murder. When he was confronted with the F.I.R. regarding it then he had no explanation to offer. This improvement was purposely made to justify the production of P.W. Ramzan for proof of motive and to narrate his story in that sequence to render his statement more probable. This witness, the appellants and the acquitted accused Banaras live in village 'Chhor Sharif and according to him, "The scene of occurrence is at a distance of 2‑1/2 furlongs from Haripur as well as from village Chhor Sharif," therefore, it is entirely inexplicable and hard to understand as to how he knew at least about his brother Banaras and nephew Akhtar Nawaz to be present in the house en route to his village when they had no business to be there and the witness had no explanation to offer as to how he knew them to be there. Therefore, it becomes ridiculous for him to state, "Attaullah accused raised a shout calling Akhtar Nawaz, Banaras, Akhtar Mehmood alias Khalid Mehmood and Sultan Mehmood and he himself entered into the house of Taj Mohammad son of Aziz Khan". This part of the statement was improvement on F.I.R. as in the F.I.R. it was stated that after the other accused came out of the house only then Attaullah went in and brought shot‑gun It appears that it was not a house but was an arsenal as every body picked up weapon of his choice from there and then it is strange that the shot‑gun allegedly taken from here by Akhtar Nawaz appellant was recovered from his house. Taj Mohammad P.W. 8 in this context stated, "while Attaullah accused reached near the house of Taj Mohammad son of Aziz Khan his brother‑in‑law, he called out that Sher Afzal and Mir Afzal had arrived". It is astonishing as to how at that time the accused knew about the quarrel which occurred between the complainant and Attaullah appellant just before that in the hotel and how they could be prompted because of it to come armed unless of course their presence there was pre planned by the complainant with ulterior motive. We find that the number of shots alleged to have been fired and hit the complainant and the deceased do not correspond with the injuries found on the person of the deceased and the complainant and the recoveries from the spot. It is in the evidence of both the witnesses that the four accused excluding Attaullah fired at the deceased which wounded him, out of these four accused Akhtar Nawaz and Banaras are alleged to have fired with shot‑guns and the. other two with pistols. According to the statement of the doctor, "All the injuries on the person of the deceased were possible by one fire‑shot of shot‑gun when the pellets spread". This part of the statement of the doctor has rather been admitted correct and relied upon by the trial Court. If the injuries caused to the deceased are the result of one shot then how the ocular account can be believed that the injured was injured with all the shots. The case of Akhtar Nawaz appellant and that of Banaras acquitted accused are identical in that both are said to have fired with shot‑guns at the deceased which hit him, then how the trial Judge was able to determine that it was the shot of Akhtar Nawaz which proved effective and that of the other went amiss. But in view of the recovery of the shot‑gun at the instance of Akhtar Nawaz which matched with the empties recovered from the spot the learned trial .fudge held Akhtar Nawaz guilty. However, it is not alleged in the evidence that Akhtar Nawaz fired two shots then what is the explanation of the prosecution about the recovery of two empties from the spot which assumes importance on account of the statement of the doctor that the injuries caused to the deceased are possible with one shot. It is to recollect that Attaullah appellant was also alleged to have fired with shot‑gun at the complainant then how in a case of three accused having fired with shot‑guns the crime. empties can be used only against E one of diem. We are not inclined to accept the recovery of the crime empties on account of the dubious circumstance surrounding it. Crime empties were recovered from the spot on 13‑3‑1984, therefore, these should have been despatched to Ballistic Expert the same day or at the most the next day. But the Investigating Officer kept it alongwith him till 15‑3‑1984, the date he allegedly recovered the shot‑gun at the behest of Akhtar Nawaz. This was so stated by the 1.0. P.W. 9 Afsar Khan in his statement, "The .12 bore empties which I recovered from the spot remained with me at the spot till 15‑3‑1984 the day on which I also recovered the shot‑gun at the pointation of Akhtar Nawaz accused". In order to avoid criticism of concoction of recoveries and of its being of doubtful character it is necessary that on recovery the crime, empties should be immediately despatched to the Arms Expert and should not be kept by the I.O. till the recovery of the empties because in that case the objection that the recoveries were manipulated will hold good. The recovery of shot‑gun at the instance of Akhtar Nawaz can also not be taken as corroborative of the other evidence. G Firstly, because it was witnessed by Riasat P.W. 6 who on account of his close relation with the complainant is not independent witness particularly when other unconcerned and independent witness of such a recovery could have been procured. Secondly, the evidence of this witness reveals that the cattleshed from where the shot‑gun was allegedly recovered lies in the house which is jointly inhabited by the accused and his other family members. Thus if the recovery of the crime empties and shot‑gun is not believed then his case becomes at par with Banaras acquitted accused and against Banaras the ocular account was not believed by the trial Court. There is hardly any need to stress that only that evidence can be made basis for conviction in case of capital charge which comes from independent and reliable source and which can be believed on account of its intrinsic and inmate evidentiary value. The evidence of the witnesses as in this case who according to the finding of the trial Judge have perjured themselves in respect of the inclusion of the acquitted accused and their testimony is irrational, full of improvements and inconsistent cannot be relied upon for conviction. It appears that the deceased and the complainant were hit with one shot of an unidentified culprit and the appellants and the acquitted accused were entangled in the crime out of illwill and ulterior motive.

10. In the circumstances we are of the opinion that the prosecution has not been able to prove the case against the appellants beyond reasonable doubt and while giving them benefit of doubt we accept this appeal and set aside the a impugned judgment. The state appeal is also without merit and is accordingly dismissed.

N.H.Q./890/P Order accordingly.