MUHAMMAD BASHIR Versus STATE

Muhammad Bashir son of Mirza Khan appellant/convict alongwith Munir Ahmad, Aziz and Ghulam Muhammad alias Gulla hence acquitted, were tried by the learned Additional Sessions Judge, Gujrat under section 302/34, P.P.C. for the murder of Muhammad Walayat on 14‑10‑1987; the learned Additional Sessions Judge convicted Muhammad Bashir appellant under section 302, P.P.C., sentenced him to life imprisonment and to pay a fine of Rs.20,000; in default of payment of fine to further undergo for a period of two years' R.I.; the fine if recovered half of it was to be paid to the legal heirs of the deceased: Munir, Aziz and Ghulam Muhammad alias Gulla accused were acquitted by giving them benefit of doubt..

2. The State also filed Revision Petition No.479 of 1990 against Muhammad Bashir under section 439, Cr.P.C. for enhancement of sentence. Through this judgment both the matters that is Criminal Appeal No.263 of 1990 and Revision Petition No.479 of 1990 will be disposed of.

3. Briefly facts of the case are that on 14‑10‑1987 at 7‑15 a.m. the complainant Mukhtar Ahmad (P.W.9) and his brother Muhammad Walayat deceased left their home for Mandi Bahauddin. Muhammad Walayat was going towards Haria Mour while complainant stopped at the Khokha of Sadiq Kumhar for purchasing cigarettes and after purchasing the same he also followed the deceased. In the meantime, accused Bashir Ahmad, Ghulam Muhammad alias Gulla both armed with .12 bore guns, Munir Ahmad armed with Khanjar and Aziz armed with Sota emerged from under the bridge of Sem Nala and raised Lalkara to teach Muhammad Walayat a lesson for breaking lets. Accused Bashir fired with his gun at Muhammad Walayat hitting him on his abdomen upon which he fell down. Accused Ghulam Muhammad inflicted Khanjar blow to Muhammad Walayat on his right shoulder. Then accused Aziz inflicted Sota blow which hit Walayat on his waist. Aziz inflicted second Sota blow which bit Walayat on back side of his right ear. Complainant raised alarm upon which accused Ghulam Muhammad alias Gulla fired at him with his gun hitting him on back side of right knee. The occurrence was also, witnessed by P.Ws Muhammad Yar son of Shana and Umar Hayat P.W.10, who were sitting on the Khokha of Mamraiz Pathan. The motive for the occurrence is that Muhammad Walayat alongwith his partymen Muhammad Anar etc. injured the partymen of accused Bashir breaking their legs and the case was registered against Walayat for that occurrence. Due to that grudge the accused Waylaid and committed the murderous assault upon Muhammad Walayat and complainant. According to the complainant after the occurrence the accused ran away towards village Haria. He sent his brother Muhammad Walayat to Civil Hospital, Mandi Bahauddin and himself proceeded to Police Station Malakwal for lodging the report. Tahir Mahmood S.I./S.H.O. (P.W.12) met him at wagon stand Malakwal, where he recorded the statement of complainant Exh.P.B. and sent the same to police station for registration of case. Tahir Mehmood P.W.12 prepared the injured statement Exh.P.N. of Mukhtar Ahmad complainant and sent him to Civil Hospital, Mandi Bahauddin for medical examination. On the basis of complaint Exh.P.B. Muhammad Anwar Moharrir A.S.I. (P.W.2) recorded F.I.R Exh.P.B./1 under section 307/34, P.P.C. Tahir Mehmood P.W.12 proceeded to the spot where he received information about the murder of one Hayat in village Haria. He postponed the investigation of this case and deputed a constable to remain at spot and himself proceeded to village Haria. There he arrested accused Bashir from the house of Nazir P.W.8. The accused was confined in a room at that time. At the time of arrest .12 bore gun Exh.P.6 and an empty cartridge P.7 were recovered from the accused which were sealed into separate parcels and took into possession vide recovery memo in case F.I.R. No. 716, dated 14‑10‑1987, copy of that recovery memo. Exh. P.J. was placed on the file as rise same weapon had been used in both the occurrence. The Investigating Officer prepared the site plan of place of recovery of gun and cartridge. Exh.P.P. is the copy of that site plan placed on the file. After completing the necessary formalities in case F.I.R. No.716 Tahir Mehmood, Investigating officer proceeded to Civil Hospital, Mandi Bahauddin, where he moved application Exh.P.G. for recording the statement of Walayat but doctor declared him unit to make any statement vide his report Exh.P.G./1. In the hospital, tile Investigating Officer recorded the supplementary statement of Mukhtar complainant and also the statements of other witnesses under section 161 Cr.P.C. At about 1‑00 p.m. Walayat succumbed to the injuries in the hospital upon which offence under section 302, P.P.C. was also added against the accused. P.W.12 Tahir Mehmood S.I./Investigating Officer prepared the inquest report Exh.P.O. of Walayat deceased and despatched the dead body for post' mortem examination under the escort of Khadam Hussain Constable Thereafter, he returned to the place of occurrence from where he collected the blood‑stained earth, sealed it into a parcel and took the same into possession vide recovery memo. Exh.P.L. attested by the witnesses. From the place oaf occurrence two empty cartridges P.8/1‑2 were also recovered which were taken into possession by the Investigating officer vide recovery memo. Exh.P.K, after sealing the same into parcel. Akbar H.C. produced blood‑stained Shalwar P.1 of Mukhtar Ahmad which was taken into possession by, the Investigating Officer vide recovery memo. Exh.P.A. After post‑mortem examination Khadam Hussain Constable produced before the‑is investigating Officer last warn clothes of the deceased viz. shirt P.2, Bunyan P.3, Sahalwar P.4, underwear P.5 and a sealed phial which were taken into possession vide recovery memo. Exh.P.D. Accused Ghulam Muhammad and Aziz were also arrested by the police and on 20‑10‑1987 Aziz accused produced Sota P.9 before the Investigation Officer who took the same into possession vide recovery memo. Exh.P.M. and prepared the site plan of place of recovery Exh.P.P./1. The Investigating Officer got prepared site plans of place of recovery Exh.P.C. and Exh.P.C./1 from the Draftsman‑ After completing the investigation the Investigating Officer P.W.12)' challaned the accused to face the trial.

4. The prosecution examined as many as 12 witnesses in support of its version; produced Mukhtar Ahmad to prove the motive, the said witness and P.W.10 Umer Hayat in proof of the ocular account; P.W.8 Nazir and P.W.11 Muhammad Yar in support of the recoveries of weapon, P.W.7 Ch. NJ. Rashid to corroborate the medical testimony and P.W.12 Tahir Mahmood Investigating Officer to confirm the investigation conducted by him. The rest of the witnesses were of the formal nature. D.D.A. for the State tendered in evidence report of Chemical Examiner, Exh.P.Q.; report of serologist Exh.P.R. and copy of report of Fire‑arm Expert Exh.P.S. The P.W. an eye‑witness was given up by the prosecution as unnecessary.

5. The accused were examined under section 342, Cr.P.C. in which all the accused pleaded their innocence. Ghulam Muhammad, Munir and Aziz, hence acquitted denied their participation in 'the occurrence; however, they all declined to produce any defence witness or to appear under section 340(2), Cr.P.C. Muhammad Bashir appellant got recorded his statement that in fact on the day of occurrence he was going to Mandi Bahauddin from his village in a bus; when he reached on Haria Mour Walayat deceased saw him and dragged him out of the bus. At that time Walayat deceased was armed with a gun which during the scuffle went off and Walayat was injured. Accused Bashir further stated that after the infliction of injuries to Walayat he ran away towards village Haria. P.W.9 Mukhtar armed with gun riding on the back of mare alongwith his relatives chased him and fired at him. To save his life he took refuge in the house of Nazir son of Mughali (P.W.8) in village Haria. The accused also stated that he was complainant in a case under section 307, P.P,C. against Walayat etc. and due to that enmity he had been falsely implicated in the case. Bashir accused denied the recovery of gun and empty from him at the time of his arrest and pleaded that licensed gun of his brother Munir has been planted against him after getting the same from :their house. Accused produced attested photostat copy Exh.D.C. of licence of gun, in the name of Munir co‑accused.

6. The learned counsel for the appellant contended that the F.I. R. was not recorded at the police station and was recorded after preliminary inquiry; the motive has been held by the trial Judge as highly unbelievable, the recovery of empties P.8/1‑2 from the place of occurrence has not been believed; the evidence of P. W .9 Mukhtar Ahmad and P. W.10 Umer Hayat had been held untrustworthy except against the appellant; the P.Ws. are inter se related and ocular version has not been corroborated by an independent and unimpeachable evidence.

7. The learned counsel for the State as well as learned counsel for the complainant controverted the arguments of learned counsel for the appellant contending that the ocular evidence is consistent and is supported by the medical evidence as well as by the recoveries; further the factum of occurrence and presence of the appellant on the spot is accepted by the appellant/convict; no serious improvements have been made; eye‑witnesses are natural and disinterested and their evidence is confidence inspiring.

8. I have heard the arguments of learned counsel for both the sides at length and have perused the record minutely with their able assistance.

9. Admittedly Muhammad Bashir appellant, Ghulam Muhammad and Munir Ahmad hence acquitted accused are real brothers; while P.W.9 Mukhtar Ahmad complainant and injured P.W. is brother‑in‑law of the deceased. It was alleged in the F.I.R, that Ghulam Muhammad accused, hence acquitted had inflicted Khanjar blow to the deceased on his right shoulder, Aziz accused had inflicted Sota blows which hit deceased on his waist and on back side of his right ear; Ghulam Muhammad accused, hence acquitted also fired with his gun at the P.W.9 Mukhtar Ahmad, complainant, which hit him on the back side of his right knee. It is worth mentioning that the prosecution tried to fill up lacuna by recording supplementary statement of complainant that Khanjar blow was inflicted by Munir accused hence acquitted and, not by Ghulam Muhammad accused hence acquitted as mentioned in the F.I.R.; the said Munir was declared innocent in various investigations conducted by different Investigating Officers. The learned trial Judge acquitted the said Munir accused, similarly Ghulam Muhammad alias Gulla aforementioned accused was declared innocent by different Investigating Officers; neither any weapon of offence was recovered from the said Munir or Ghulam Muhammad accused. The learned trial Judge discarded the ocular evidence of P.W.9 and P.W.10 as untrustworthy and not confidence inspiring against the accused namely Aziz, Ghulam Muhammad alias Gulla and Munir Ahmad and acquitted them by giving benefit of doubt; as the prosecution could not prove their involvement in the occurrence.

10. The learned counsel's contention that Ghulam Muhammad alias Gulla who caused fire-arm injury on the‑back side of right knee of P. W.9 Mukhtar Ahmad complaint has been acquitted; the ocular evidence of P.W.9 is not confidence inspiring and non‑trustworthy is not without force, similarly that of P.W.10 Umer Hayat; as both were disbelieved against the other accused; further were disbelieved by the learned trial Judge qua motive as the learned Judge observed that story of motive put forth by the prosecution was highly unbelievable and did not appeal to the reasons. In case Atta Muhammad and another v. The State 1995 SCMR 599 relied upon by the learned counsel; wherein complainant named ten persons as accused in F.I.R.; despite the testimony of complainant and other eye‑witnesses, eight co‑accused including the particular person who was alleged to have fired from his gun and injured the prosecution witnesses; it was observed by their Lordships:‑‑

"The acquittal of eight co‑accused will also show that the eye‑witnesses were capable of implicating falsely innocent persons in the case or at least of exaggerating the number of the accused."

The learned Judges acquitted the appellants by observing:‑‑

"The prosecution case is pregnant with serious doubts and is full of confusion. The eye‑witnesses have shown reckless disregard for the truth and have thrown the noose wide enough to implicate as many persons from the side of the accused as they wished. The case of the appellants is at par with the case of Nazir acquitted accused. There is chaff and chaff all around and not a grain to sift."

11. While the learned counsel for the complainant relied on case Muhammad Nazir v. The State 1992 SCMR 1014 wherein the learned counsel laid much emphasis on the maxim 'falsus in uno falsus in omnibus', and submitted that once the trial Court came to the conclusion that the P.Ws. had perjured themselves by implicating an innocent person; then testimony qua appellant was equally not creditworthy and the appellant too, was entitled to acquittal; their Lordships while dismissing the appeal held:‑‑

"The safest course of dispensation of criminal justice had to be adopted and in consequence extended only the benefit of doubt to Mansabdar accused but, by no stretch of imagination, this can benefit the appellant in any way, as against him the charge was well‑founded and proved to the hilt. "

12. The motive alleged by the prosecution was found by the trial Judge as highly unbelievable as did not appeal to the reasons. The motive allegedly was that the deceased alongwith his companions inflicted injuries to the partymen of Bashir appellant, for which he got registered a case against the deceased etc. under section 307, P.P.C.; due to the grudge Bashir and his co‑accused attacked the deceased and murdered him. The motive does not appeal to the reason and no prudent man will accept it as neither the appellant was injured in that occurrence nor he is related to any injured of that case; he was simply a P.W. and was neither directly effected party nor any enmity with the deceased. It was observed in case Habib Ullah and others v. The State PLD 1968 SC 127 that:‑‑

"In ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever. Motiveless murders do occur owing to make a reckless acts of inhuman nature. Sometimes a motive has mysteriously hidden in the mind of the killer with no means to dig it out on the surface. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence or indirect speak about the guilt of an accused person on the premises of a false motive. "

13. In case in hand, the alleged motive being absent and held to be untrue, the trial Court was very much on his guard to accept the story of the prosecution as the motive was an independent constituent and which was dependent for its acceptance on the statement of a single witness P.W.9 who supported the prosecution story including the motive. The learned counsel for the complainant relied on case Mukhtar and 4 others v. The State PLD 1992 SC 320 wherein accused had strong motive to harm the complainant party; P.Ws. statements did not suffer from any material contradictions; their Lordships maintained sentences and convictions of the appellants; the dictum laid in supra case is not applicable to the facts of the case in hand as are distinguishable as the appellant had no strong motive to kill the deceased; while in case Riasat Ali v. The State PLD 1991 SC 397 their Lordships held that where motive remained shrouded in mystery can rightly give advantage to the accused in the matter of sentence; however, no such advantage could be claimed in matter of reduction of fine.

14. True, as contended by the learned counsel for the complainant that proof of motive or previous ill‑will is not necessary to sustain conviction under section 302, P.P.C. and even in case of unacceptable motive ocular testimony of quality alone was sufficient to establish guilt and absence of motive would not cloud such testimony; but nothing has been brought on record that there might be some concealed grievance or jealousy in heart of the accused against the deceased although outwardly it was not visible. The learned trial Judge rightly observed that the motive was not proved beyond any reasonable doubt. The contention of the learned counsel for the appellant that P.W.9 and PW10 eye witnesses to the occurrence were interested witnesses being closely related to the deceased and, therefore, unless they were corroborated by independent witnesses, they are not worthy of credit is not without force as it was observed in case Yar Muhammad and 3 others v. The State 1992 SCMR 96:‑‑

"But if there is exaggeration in their statements and there is some doubt to the veracity then for the safe administration of criminal justice it would be proper to insist on independent corroborative evidence. "

15. While the learned 'counsel for the complainant contended that mere relationship of eye‑witnesses inter se and with accused would not justify disbelieving of their testimony and relied upon case Jiand v. The State 1991 SCMR 1268 wherein it was held that in such situation, the Court has to scrutinize evidence of such witnesses with caution and care and if it was satisfied that their evidence was truthful, the same could be relied upon. In case Muhammad Nawaz and others v. The State 1983 PCr.LJ 1487 (Lahore) it was observed that it is well‑settled that ocular evidence in order to carry conviction on capital charge must come from unimpeachable source and supported by some strong and circumstantial evidence.

16. The contention of the learned counsel for the complainant and the State that the presence of appellant/convict is admitted by the defence in its defence plea as Bashir appellant had taken the defence plea that he was going to Mandi Bahauddin and deceased Walayat got him down from the bus at Haria Mour and scuffled with him and during that scuffle gun of Walayat went off hitting the deceased on his abdomen and contended that the defence plea adopted by the appellant/accused has not been proved by him and is not believable and confidence inspiring as if the deceased would have grappled with the accused Bashir certainly would have‑scorching or blackening around the injury but at the time of anti‑mortem or post‑mortem examination of the deceased neither scorching nor blackening was found by the doctor. P. W.7 stated in his cross -examination that fire had been shot within the range of 10 feet which shows that there was no grapple between the deceased and the appellant as the injury must be shot from the range at least of six feet. It is well‑settled principle of law that in criminal trial onus always lies on the prosecution to prove its case beyond any shadow of doubt and the prosecution has to succeed on strength of its own case I and not on the weakness of the 'defence. It was held in case Hakim Ali and 4 others v. The State and another 1971 SCMR 432 that:‑‑

"The onus in a criminal case always lies on the prosecution. It never shifts to the accused. It is wrong, therefore, to think that because 'the accused persons did not tell the whole truth' the prosecution must succeed. The prosecution has always to succeed upon the strength of its own case and not the weakness of the defence case. It is not necessary for the defence to establish the innocence of the accused persons. It is enough for it if it has succeeded in casting a serious doubt upon the prosecution case. The benefit of that doubt must go to the accused. "

17. In the present case the learned trial Judge did not accept the motive set up. by the prosecution as aforementioned. True it is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence. If the prosecution failed to establish the motive set up by it; as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case. In the case in hand the occurrence as alleged in the F.I.R. has not taken place according to which as previously in the F.I.R. P.W.9 complainant had stated that it was Ghulam Muhammad alias Gulla who fired with his gun which hit him and later on to fulfil the lacuna stated in a supplementary statement that it was Munir who caused Khanjar injury to the deceased. The ocular evidence may be classified into three categories as observed by their Lordships in case Ata Muhammad and another v. The State 1995 SCMR 599 firstly, wholly reliable; secondly, wholly unreliable and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the present case, according to the prosecution version Muhammad Bashir appellant/accused had fired with his gun at Muhammad Walayat deceased hitting obi his abdomen while the accused Ghulam Muhammad alias Gulla inflicted Khanjar blow to the deceased. Further Ghulam Muhammad accused fired with his gun at P.W.9 Mukhtar Ahmad which hit him on the back side of right knee which later on was found to be false. The learned counsel for the State while arguing the case stated that he does not press the revision petition for enhancement of sentence.

18. The upshot of the above discussion is that there being no judicial certainty and circumstantial guarantee of the participation of the appellant in the occurrence to uphold his conviction, the appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted of the charge. He will now be discharged from his bail bonds. I find no substance in the revision petition in view of the statement made by the learned counsel for the State and the same is hereby dismissed.

N.H.Q./M‑2695/L Appeal accepted.