RASHID AHMED Versus THE STATE

1. ABDUL HAFEEZ MEMON, J .-Appellant Rashid along with co-accused Shall and Badal were tried by the Additional Sessions Judge, Karachi, for an offence under section 302' read with section 34, P. P. C. for committing murder of Mirza son of Mohomed Siddik. The trial Court acquitted Shall and Badal but convicted the appellant and sentenced him to death. He has appealed against his conviction and sentence. The case is also before us under section 374, Cr. P. C. for confirmation of the sentence of death passed upon the appellant. By this judgment we propose to dispose of the appeal as well as the reference.

2. Prosecution case, briefly stated, is that on 16-9-1971 deceased Mirza and P. Ws. Achar and Allahna were returning to their home in the evening in a bus, after selling milk at Lea Market. As soon as they got down at Mauripur Bus Stand, accused Shall, Badal and Rashid, who were already standing at the bus stand and were respectively carrying a lathi, stone and a knife, shouted at the deceased that he had looted their 'Izzat' and would not be spared. So saying, all the three accused attacked deceased Mirza. Accused Rashid inflicted the knife blow on his chest, Shafi struck him with a lathi on his shoulder and Badal struck him with a stone on his head as a result whereof he fell down and died instantaneously. Accused thereafter made good their escape. The incident is alleged to have been witnessed by P. Ws. Achar, Allana, Siddik and Bela. P. Ws. Siddik and Allana thereafter remained with the dead body while P. W. Achar and Bela went to report the incident at Mauripur Out Post which was recorded by Head Constable Nazar Muhammad (since deceased). Wireless message was then sent to S. H. O. Abdul Sattar at Baghdadi Police Station who reached the place of incident where be received the copy of the F. I. R. and started investigation. He found the dead body lying at 3 paces from the road going to Hawksbay. He prepared mashirnama of wardat, seized blood-stained clothes of the deceased and recorded statements of witnesses Achar, Allana, Bela, Mohomed Siddik, Muzamil, Ghulam Mustafa, Allabdino, Nest. Hanifa, Mst. Hajiani and Head Constable Nazar Mohomed. He then arrested the accused and after completing the investigation challaned the accused in the Court of A. C. M. XXVI, Karachi from where they were committed to the Court of Additional Sessions Judge, Karachi, to stand their trial.

3. At the trial, prosecution relied solely upon the ocular testimony of P. Ws. Achar, Allahna, Bela and Siddik who supported the prosecution case against all the accused.

4. Defence of the accused at the trial was one of denial and false implication on account of relationship of the witnesses with the deceased.

5. The trial Court disbelieved the prosecution witnesses with regard to the co-accused Shafi and Badal on the ground that the medical evidence- showed no lathi or stone injury on the person of the deceased but convicted the accused by relying on the evidence of the same witnesses on the ground that their evidence with regard to the appellant Rashid was supported by the medical evidence which showed that the deceased bad one injury on his chest resulting in his death. Hence this appeal and the reference.

6. The question for consideration is whether the appellant has been rightly convicted.

7. Prosecution case rests entirely on the ocular testimony of P. Ws. Siddik, Achar, Allahna and Bela who are related Inter se as well as to the deceased Mirza. Their relationship may be narrated in words of P. W. Achar as under;

8. "Allahna is my cousin, Siddik P. W. and Bela are cousins inter se. Allahna and Siddik are relatives. I have stated in the lower Court that Siddik is my relative. Mirza deceased is also my relative."

9. Out of these 4 witnesses, P. Ws. Achar and Allahna are said to have travelled in the same bus along with the deceased Mirza while the remaining 2 witnesses Siddik and Bela are said to have been already standing at the Mauripur terminal bus stop. P. W.. Achar in his evidence has stated that after selling milk in the city, he, P. W. Allahna and the deceased Mirza boarded a bus at Lea Market in the evening for returning to their home and got down at Mauripur Bus Stand. As soon as they bad got down, co-accused Shafi, Badal and Rashid, who were standing at the bus stop and were armed respectively with a laths, stone and a knife, simultaneously, attacked the deceased Mirza Shafi gave him a laths blow to the deceased on his shoulder, Badal bit the deceased with a stone on his bead and Rashid struck that deceased with a knife on his chest whereafter the deceased fell down and died and the accused made good their escape. P. Ws. Siddik and Allahna remained with the dead body while he and P. Ws. Bela went to report the incident. In his cross-examination, the defence brought out from him that 40 to 50 persons had alighted from the bus along with them and that when the accused attacked the deceased 3-4 persons were present there besides the persons named by him above and that there was a hotel and a shop on one side of the bus stop and Mauripur Road on the other side and gave the distance between hotel and bus stand to be 30 paces. He was, however, confronted on this point with his, statement in the committal Court wherein he had stated that the distance between the hotel and the bus stop was 10 paces. He went on, to state further in his cross-examination that other persons had left the bus stop when the accused attacked the deceased and that none of them had seen the incident as he and other P. Ws. were last to get down from the bus. He was, however, contradicted on this point also by his state ment in the committal Court wherein he had stated that the incident was seen by all the passengers who had alighted at the bus terminal. He also had to admit that number of persons had assembled at the vardat.

10. P. W. Allahna in his evidence has given the same version of the incident as given by P. W. Achar excepting that in his examination-in-chief he stated that Achar and Bela went to the police station for lodging F. I. R. while he stood near the dead body of the deceased and does not mention P. W. Siddik anywhere in his evidence. In his cross-examination, he admitted that he got down from the bus first and was followed by Mirza and Achar and the rest of the passengers. He also admitted that most of the passengers might have seen the occurrence and that number, of persons were available near the vardat at, the time of occurrence besides 40 to 50 passengers of the bus. He further conceded that he did not try to separate the deceased from the accused as he was carrying milk pots with him at that time and that none of those present at the vardat intervened.

11. P. W. Siddik, father of the deceased, in his evidence stated that he was standing at the bus stand awaiting the return of his son from the city and P. W. Bela and others were also standing at the bus stand. When P. W. Achar, Allahna and the deceased Mirza alighted from the bus, the three accused, who were also standing at the bus stand, simultaneously attacked his son Mirza. Rashid inflicted knife blow on the chest of the deceased, Badal struck the deceased on his head with a stone piece and Shafi gave laths blow to the deceased on the back side of his shoulder. The deceased fell down and the accused made good their escape. He further stated that he had identified all the accused at the spot as there was sufficient light. He thereafter remained near the dead body of the deceased while Bela and others went to the police station to lodge the F. I. R. In his cross-examination he stated that he was first sitting in the hotel and later came to the bus stop half an hour or an hour before arrival of the bus and gave the distance between the hotel and the bus stop as 50 paces. On this, he was contradicted with his statement in the committal Court wherein he had given the distance between the bus stop and the hotel to be between 5 to 10 yards. When questioned whether he had mentioned in his statement before the Court of enquiry about Bela being present at the bus stop with him, he replied in the affirmative. He was, however, confronted in this by leis lower Court statement wherein he had not mentioned about Bela being present with him. When questioned-as to how many persons had alighted from the bus, he replied that many persons had alighted from the bus but alleged that deceased alighted in the last and that he had no chance to intervene in the attack.

12. P. W. Bela in his examination-in-chief has given practically the same version of the incident as given by P. W. Siddik and stated that he was standing at the bus stop when P. W. Allahna, Achar and deceased Mirza alighted from the bus which had come from Lea Market and after the deceased had alighted from the bus he was attacked by the accused persons out of whom accused Shad gave the deceased a lathi blow, Rashid inflicted a knife injury on his chest and Badal struck him with a stone. The deceased fell down on the ground and died and the accused made good their escape. He and P. W. Achar then went to the Police Station to lodge the report while P: W. Allahna and Siddik remained with the dead body of the deceased. In his cross-examination, he stated that he was already standing at the bus stop nearly an hour before arrival of the bus and that the hotel was at a distance of 20 to 25 paces from the bus stop and that before going to the bus stop he was sitting in the hotel. Having so stated, he admitted in the next line that there was a road between the bus stop and the hotel but he did not cross the road towards bus stop because he intended to go to his house. It may be pointed out here that his name does not appear in the F. I. R. and P. W. Siddik also does not mention him as being present on the vardat at the time of incident, in his statement before the committal Court.

13. Learned counsel for the appellant contended that in view of the above narrated close relationship of the prosecution witnesses inter se and with the deceased, their evidence should not be believed as being partisan witnesses.

14. The contention is misconceived. Just as, absence of relationship of the witnesses with the deceased does not, for that reason, make them witnesses of truth, mere relationship of the witnesses with the deceased does not, conversely make them false witnesses and is no ground for disbelieving them. Ultimately, the acid test of veracity of a witness is the inherent merit of his own statement.

15. It will, therefore, have to be seen whether the evidence of the afore-named witnesses for the prosecution is of such an unimpeachable quality as can be implicitly relied upon a capital charge.

16. Learned counsel for the appellant next contended that the prosecution, witnesses stood belied by the medical evidence which showed that the deceased had no lathi or stone injury, which fact proved that they were not present on the scene of occurrence and had not seen the incident and further showed that, in any case they were not truthful or worthy of credit as they had given a false version of the occurrence by deliberately implicat ing two innocent persons Shall and Badal and the fact that their evidence was also disbelieved by the trial Court itself against these two accused for the same reason, it was not safe to rely on their evidence in regard to the remaining third accused Rashid, the appellant, in absence of some independent corroboration which is conspicuously absent in this case.

17. The contention appears to be well founded and requires serious considera tion. Indeed, all the witnesses had, in one voice, implicated co-accused Badal and Shall by stating in their evidence that accused Shall struck a lathi blow to the deceased on the back of his shoulder and accused Badal hit the deceased on his head with a stone. Medical evidence deposed to by Dr. Mohomed tJmar would, however, show that the deceased had only two external injuries on his person. Injury No. 1 was an incised wound on the left side of the chest at 4th rib and 4th inter-costal space 4" to midsternal line, vertical in direction 1 " x " x cavity deep. According to the doctor, this injury which had punctured the left side of the heart was sufficient in the ordinary course to cause death of the deceased. As regards the second injury, an abrasion on left knee joint " x ", the doctor opined that it could be caused by falling on the ground against hard substance.

18. It will thus be noticed that the deceased had neither lath! nor stone injury on his person which fact indeed belies the version given by the prosecution witnesses and goes to prove that they had falsely implicated two innocent persons and were, therefore, not truthful witnesses. It could even be said that they were not present at the place of incident and had not seen the occurrence. In the Division Bench case reported as Khurdo v. State (PL D 1963 Kar. 92), it was observed at page 100, that when ocular evidence is contradicted by medical evidence, reasonable inference would be that none of the witnesses had seen the incident. Similar view was taken by a Division Bench of the Lahore High Court in the case reported as Rajba and 8 others v. State (1975 P Cr. L J 482) wherein the Division Bench at page 488 expressed itself thus;

19. "The eye-witnesses account also contradicts the medical evidence. Lalu absconder and Naseer had gun and rifle respectively. According to the eye-witnesses they fired at Chakar. Gunshot injuries on the person of Chakar are probably the result of fire from '12 bore gun. Similarly Muhammad and Naseer appellants who had rifles attacked Abdul Sattar. The fire-arm injuries on the person of Abdul Sattar seem to have been inflicted by fire of '12 bore gun. Learned counsel for the appellants vehemently argued that the ocular testimony being in contradiction with the medical evidence obviously it goes to show that the eye-witnesses were not present at the spot and had not seen the occurrence. We are inclined to agree with his submission."

20. Indeed, the trial Court itself, for this very reason, did not believe the prosecution witnesses with regard to the two co-accused Badal and Shafi and acquitted them. Having done so, the trial Court, however, proceeded to rely on the same witnesses with regard to the appellant by treating their version with regard to the two acquitted accused as an exaggeration of eye-witness account and convicted the appellant on the ground that their evidence as against the appellant stood corroborated by the medical evidence. Relevant part of the judgment may be reproduced in the words of the learned trial Judge as under :

21. "It is quite clear that the deceased had not suffered -any injuries either from lathi or from stone. If it were not so, then the doctor would have noticed the injuries caused by the lathi and stone. It would thus appear that so far as the infliction of injuries by accused Shafi and Badal is concerned, the prosecution witnesses seem to have exaggerated the eye-witnesses account. However, they are fully supported by medical evidence in so far as the injury caused by accused Rashid is concerned."

22. I am afraid this is not a correct mode of evaluating the evidence of the witnesses. When the prosecution witnesses exaggerate their evidence to the extent of implicating two innocent persons, where is the guarantee that they had not exaggerated it with regard to the appellant as well, or, for that matter, even with regard to the entire incident ? The learned; trial Judge is also not correct in treating the medical evidence as a corrobora tion, for, the medical evidence would only corroborate that the deceased received the injury on his chest but could not be construed to mean that the appellant caused the injury, whereas corroborative evidence required in the case had to be some independent evidence implicating the appellant in a material particular with the crime.

23. It is a well established rule of prudence that when prosecution witnesses are discredited in respect of majority of the accused, it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corroboration in respect of such accused.

24. This rule of prudence is rendered all the more essential when the witnesses are shown to have falsely implicated innocent persons, as in the present case. For support, reference may be made with advantage to decision reported as Mhahla Singh v. The Emperor (A I R 1931 Lah. 38), where Dalip Singh, Judge observed at page 46 as follows :---

25. As rightly remarked by one of the learned Judges in appeal, when wit nesses have been disbelieved about five persons out of six alleged to have taken part in a murder, their evidence would have to be particularly convincing before the sixth person could be convicted and sentenced to death on such evidence. I have had occasion once before to point out that though the maxim ' falsus in uno falsus in omnibus" does not apply with full force in this province, nevertheless prosecution witnesses who deliberately set about implicating innocent persons run a grave risk of finding that their evidence may be disbelieved in toto even against persons who the Court may have reason to suspect had taken part in the crime. It is impossible for a Judge of this Court to be able to sift the evidence with such certainty that he can positively reject the false part and distinguish it from the true part with that certainty which is necessary before a man can be sentenced to death."

26. In Rehmat and others v. The State (P L D 1959 S C (Pak.) 109), Cornelius, J., as his Lordship then was, at page 110 summed up the position thus;

27. "Where the entire case rests on the ocular evidence, which is subject to general doubts, it is obviously not consistent with the safe administra tion of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime."

28. Following the above cited Supreme Court case, a Division Bench of this Court observed in Jalal v. The State (P L D 1973 Kar. 643), as under;

29. "It has been repeatedly held that credibility cannot be treated as divisible ; accepted against one land rejected against the others. To accept his version against the appellant there must necessarily be some evidence alieunde e.g. confession, circumstantial evidence or any confirmatory circumstances, which by itself may suffice to show beyond reasonable doubt, the appellant's implication in the crime. This was the view taken in Rehmat v. The State P L D 1959 S C 109, Muhammad Afsar v. The Crown, P L D 1954 F C 170, Ahmad Khan v. The State P L D 1962 Lah. 390 and Muhammad Fiyaz Bakhsh v. The Queen P L D 1959 P C 24."

30. Judged in the light of the above decisions, it will be noticed that the evidence of the prosecution witnesses having been belied by the medical evidence and the witnesses having been disbelieved by the trial Court, and rightly so, as against the two co-accused, their evidence could not be relied upon with regard to the appellant without independent corroboration e.g. confession, circumstantial evidence or any confirmatory circumstance which by itself may suffice to show beyond reasonable doubt, the appellant's implication in the crime. There is, however, not an iota of corroborative evidence on record to show beyond reasonable doubt, the implication of the accused in this crime. On the other hand, the prosecution case is subject-to number of general doubts of very serious nature which further make it unsafe to select the appellant for conviction. Admittedly, the incident had taken place at the terminal bus stand where according to the prosecution many persons were present and had seen the incident. There was also a shop and a hotel situated at a distance of 10 to 15 yards. Yet, the prosecution did not examine even one of such independent persons and selected only close relations of the deceased in proof of its case. Incident having taken place at such a public place, it is rather difficult to accept that no one from there was willing to come forward to give evidence. Then, although the prosecution witnesses were four in number as against the three accused, yet none of them is shown to have lifted their little finger to intervene and come to the rescue of the deceased, who was so closely related to all of them. It is also not the case that all the accused were heavily armed so that the witnesses were afraid to come near them. One of the accused is alleged to have been armed with a lathi and the other with a stone. Natural course of human conduct in such a situation would, on the other hand, suggest that if such close relations are present, they would not, even if outnumbered-although in this case they were not-allow one so near and dear to them to be simultaneously attacked by strangers while they stand as silent spectators. Indeed, as contended by the learned counsel, such unnatural conduct on the part of the witnesses does not rule out that in all probability the witnesses were not even present on the scene of occurrence and had not witnessed the incident which probability, apart from the medical evidence, is further strengthened by the fact that P. W. Bela was not named in the F. I. R. and P.W Allahna nowhere in his evidence mentioned about P. W. Siddik being present at the scene at the time of the incident.

31. Further, motive on the part of the appellant for the alleged crime is also lacking in this case. All that the witnesses have stated in their evidence is that before attacking the deceased, the accused shouted at him that he had looted their `izzat' and would not be spared. P. W. Siddik in his evidence has further stated that on the day of the incident Ali Khan and his brother and two women from the house of the accused were called at the Police Station. Prosecution, however, did not bring any thing on record to substantiate such allegations made by prosecution witnesses nor did the Court put any such question to the appellant or any of the co-accused in their state ments. Thus, there is complete absence of motive in this case. Of course, if the prosecution case is based on the direct unimpeachable evidence, absence of motive would not matter. But, as explained earlier, the direct evidence in the present case is certainly not unimpeachable and has been shown to by unreliable. Absence of motive in such a case, therefore, does assume importance.

32. Lastly, investigation of the case also leaves much to be explained. No effort appears to have been made to recover either knife or the blood-stained clothes of the accused. Even, mashirnama of the arrest of the accused was not prepared by the Investigation Officer as per his own admission, to show when and how the accused were arrested although names of the accused were disclosed in the F. I. R. and were living in the same village of the complainant party.

33. For the aforesaid reasons, we have come to 'Form the view that the prosecution case against the appellant is not free from doubt and he is, therefore, entitled to acquittal. We accordingly allow this appeal and set aside the conviction and sentence passed on the appellant and order that he be released forthwith unless required in any other case. The reference is accordingly rejected and the death sentence passed on the appellant is not confirmed.

34. KHUDA BAKHSH MARRI, J .-I agree.

35. S. Q. Appeal allowed.