MUHAMMAD KHALID Versus STATER

This appeal is directed against the judgment dated 18-10-1995 passed by Mr. Gulshad Hussain Alvi, Additional Sessions Judge, Jhang, whereby he acquitted Muhammad Hussain and convicted the appellant under section 302-B, P.P.C. and sentenced him to imprisonment for life under Taazir an ordered him to pay Rs.50,000 as compensation to the legal heirs of deceased Muhammad Afzal or in default thereof to suffer R.I. for 5 years.

2. Alongwith this appeal, Criminal Appeal No.871/95 has also been filed by complainant/petitioner Muhammad Shafi against acquittal of Muhammad Aslam and awarding lesser punishment to Muhammad Khalid. As both these appeals arise out of the same judgment and Criminal Appeal No.871/95 has not been admitted, so these are being disposed of by this single judgment.

3. Briefly stated the prosecution case as unfolded in complaint Exh. P-I lodged by complainant Muhammad Shafi is that he is resident of village Wasoo and runs a Karyana shop in the said village. His son Muhammad Afzal works on the said shop during the day whereas he performs his duty during night. On 13-11-1994, he left for Poori Cotton Factory, Rashidpur for delivering cotton on a tractor-trolly and returned at about 10.00 P.M. and found his son Muhammad Afzal sleeping on the shop. Accordingly, he proceeded to his house and went to bed. On the following morning, he got up and left for his shop for awaking his son. He found that his son was lying soaked in blood, having stabbed injuries on his person and a Phanda of cloth around his neck. On his hue and cry Muhammad Sharif, Nazir Ahmad alongwith other inhabitants of village collected there, He found that shop was lying closed whereas lock had been opened and lying on the spot. On checking he found that keys were in the Ghalla, but a sum of Rs.6,000, Seiko Five Watch and a handkerchief were missing. Leaving Muhammad Sharif and Nazir Ahmad to guard the dead body, he made for the police station. Allah Yar, S.I. P.W.13 met him at Adda Munirabad at 7-00 a.m. who recorded complaint Exh.P/I on his statement.

4. Allah Yar, S.I. (P.W.13) thus made for the place of occurrence. Where he recorded supplementary statement of complainant. He prepared injury statement Exh.P/D, inquest report Exh.P/E and despatched dead body for autopsy under the escort of Aurang Zaib Constable (P.W.1). He collected blood stained earth vide memo. Exh.P/G, secured blood-stained cot P3, quelts P4-5 vide memo Exh.P/H prepared rough site plan Exh.P/L, secured last-worn clothes of deceased P1 and 2 vide memo. Exh.P/A and handed over parcels to Moharrir Then Saeed Ahmad, S.H.O. (P.W.14) conducted the remaining investigation He got the site-plans Exhs.P/M and P/N prepared from draftsman. On 30-11-1994, he recorded the statements of Karamat Husain Constable and Mumtaz Husain, H.C. On 2-12-1994, accused Khalid led to the recovery of blood-stained knife Exh.P10 which he secured vide memo. Exh.P/K on the same day accused Aslam led to the recovery of watch P7, handkerchief P8 and cash Rs.6,000 Exh.P9/1 to 699 vide memo. Exh.P/J. He completed the investigation and submitted the challan.

5. A charge under section 460/302/457/394/411/109, P.P.C. was framed against the accused to which they pleaded not guilty and claimed trial.

6. In order to bring home guilt to the accused, prosecution examined Aurangzaib Constable (P.W.1) who has escorted the dead body for post-mortem examination and later on produced last-worn clothes Exhs.Pl and P2 before the Investigating Officer who secured it vide memo. Exh.PA. Karamat Hussain, Constable (P.W.2) deposed about delivery of parcles of blood-stained earth and blood-stained knife in the Office of Chemical Examiner. Dr. Farooq Ahmad (P.W.3) conducted post-mortem examination on the dead body of Muhammad Afzal son of Muhammad Shafi on 14-11-1994 and found the following injuries:

(1) An incised wound 2 c.m. x 0.8 c.m. on the front of left chest 4 c.m. below the nipple.

(2) An incised wound of 2 c.m. x 1 c.m. on the front and lower part of right chest 11 cm below nipple.

(3) An incised wound of 2 c.m. x 1 c.m. on the right hypochondriom of right abdomen 4 c.m. below the injury No.2.

(4) An incised wound of 2 1/2 c.m. x c.m. on the front outer and middle part of right thigh.

(5) An incised wound 1.5 c.m. x 0.8 c.m. on the front and middle part of right thigh 1 c.m. medial to injury No.4.

(6) Multiple abrasion marks on an area of 4 c.m. x 2 c.m. on the front of left knee-joint.

(7) An abrasion mark of c.m. x 1 c.m. on the front and outer side of right knee-joint.

(8) A contusion mark of 5 c.m. x .5 c.m. on the left side of the neck.

(9) A contusion mark of 1 c.m. x c.m. just below the chin,

(10) A contusion mark of 6 c.m. x .5 c.m. on the right side of neck.

(11) An abrasion mark of 1 c.m. x 1 c.m. on the back of interphalanger joint of right index finger.

(12) An abrasion mark of 1 c.m. x. 1 c.m. on the outer and lower side of left knee joint.

(13) An abrasion mark of 1.5 c.m. x c.m. on the back of left ankle-Joint.

7. In his opinion, injuries Nos.l, 2, 3, 8, 9 and 10 causing haemorrhage and strangulation were sufficient to cause death in ordinary course of nature. All injuries were ante-mortem in nature. Injuries Nos.1 to 5 were caused by sharp edged weapon and the rest were caused by blunt weapon. The time between injuries and death was within one hour and between death and post mortem was within 24 hours. He issued carbon copy of post-mortem examination report Exh.PB and diagram of injuries Exh.PC. P.W.4 Dost Muhammad is a witness of recovery of blood-stained earth secured vide memo. Exh.PG and of securing blood-stained cot P3, quelts P4 and P5 secured vide memo. Ex.PH. P.W.5

Muhammad Iqbal is a witness of identification of dead body and of securing last worn clothes P1-2 vide memo. Exh.PA. P.W.6 Mumtaz Husain, H.C recorded the formal F.I.R. Exh.P-I/1, on the basis of complaint Exh.P/I on 14 1 1-1994. On 27-11-1994, he was handed over a parcel containing blood-stained knife for keeping the same in Malkhana. P.W.7 Gul Muhammad is the solitary eye witness of this occurrence. He deposed that Muhammad Shafi owed him some amount, so he contacted him on the night of occurrence at about 2-00 a.m. as he had to go to Faisalabad to purchase mobile oil, that he had seen the accused putting a Phanda around the neck of the deceased and was also carrying a knife in his hand, that accused raised Lalkara that if he narrated the occurrence to any body he would be murdered, that accused Khalid had given knife blows to Muhammad Afzal in his presence, that he brought this fact into the notice of Muhammad Shafi at 8-30 a.m. P.W.8 Haji Muhammad Sultan is the witness of joint extra judicial confession of the accused. He further deposed that Tariq Hanif P.W.9 had seen the accused Muhammad Khalid going towards shop of complainant Muhammad Shafi whereas Muhammad Sharif P.W. had seen him coning back from there. Tariq Hanif P.W.9 corroborated the statement of p.W.8 and further stated that he reached Wassoo Bus Stand at 2-00 a.m. for going to purchase mobil oil. P.W.10 Abdul Qayyum is a witness of recovery of Seiko Five Watch P-7 handkerchief P-8 and Rs.6,000 Exh.P9/1 to 699 at the instance of accused which were secured vide memo. Ex.P.J. P.W.11 Muhammad Saeed is a witness of recovery of blood-stained knife Exh.P-10 vide memo. Exh.PK. P.W. 12 Muhammad Shafi is the complainant who has corroborated his version appearing in complaint Exh. P-I. He further deposed that on his return after lodging complaint, he was informed by Gul Muhammad P.W.7, that he had witnessed the occurrence and further informed him that Tariq Hanif and Haji Sultan had seen the accused Khalid going and returning from the place of occurrence. C. W.1 Muhammad Yaqoob, Constable deposed about the death of draftsman. P.W.13 Allah Yar S.I. and P.W.14 Saeed Ahmad, Inspector are Investigating Officers whose evidence has already been discussed. The learned SPP produced the reports of Serologist Exh.P-P and Exh.P-Q and after giving up remaining witnesses closed the case for prosecution vide his statement dated 26-9-1995.

8. When examined under section 342, Cr.P.C Muhammad Aslam accused (since acquitted) denied the prosecution version and stated that he had severed his connection with his son Muhammad Khalid since 1984 due to his disobedience. He denied the prosecution version regarding making joint extra judicial confession before Haji Sultan P.W.8. He stated that he had been involved in this case at the instance of Muhammad Akram Chela who prevailed upon the complainant and others for filing a write petition against him. He produced certain documents in his defence and then closed his evidence. Similarly Muhammad Khalid accused denied the prosecution version. He stated that instant case is a blind murder case and he had been implicated due to Muhammad Akram Chela, as he opposed him in the election. He neither adduced any defence evidence nor recorded his statement under section 340(2), Cr. P. C.

\9. After going through the evidence produced by the parties the trial Court acquitted Muhammad Aslam accused whereas convicted Muhammad Khalid accused vide judgment under appeal.

10. Arguments have been heard and record perused. With the assistance of learned counsel for the appellant as well as complainant assisted by learned State Counsel.

It is contended by the learned counsel for the appellant that as per initial version of complainant contained in F.I.R. Exh.Pl-1, none has been nominated for causing the murder of deceased. However complainant nominated the appellant for causing the murder of deceased in his supplementary statement on the basis of information imparted to him by Gul Muhammad P.W.7, that P.W. 7 further told the complainant that accused/appellant was seen going and returning from the place of occurrence by Tariq Hanif P.W.9 and that similarly Haji Sultan P.W.8 further informed complainant regarding extra judicial confession of both the appellant as well as his father Muhammad Aslam accuses: (since acquitted) regarding the present incident. He submitted that statements of P. W .8 Haji Sultan and that of Tariq Hanif P.W.9 have not been believed by the trial Court. He further submitted that similarly the evidence of recovery, given by Abdul Qayyum P.W.10 has not been relied upon by the trial Court. He argued that if the statements of P.Ws. 8, 9 and 10 are excluded, then there remains the solitary statement of Gul Muhammad P.W.7 in the filed, which in absence of any corroboration cannot be believed. He also criticised the deposition of Gul Muhammad P.W.7 and submitted that his proceeding to the house of complainant for collecting money at 2-00 a.m. for proceeding to Faislabad for purchasing mobil oil does not appeal to reason, as mobil oil was available at Athara Hazari. He referred to the admission of said P.W.7 that he was I1Ot paid any amount by the complainant at that odd hours and that he was paid the said amount after two months and that he had brought mobil oil after about one month of this occurrence. He further referred to his statement wherein the admits that he did not narrate the incident to any one else except the complainant and that too at 8.30 a.m. as he was frightened by the said incident, that it is admitted by him that when he brought this fact to the notice of complainant, the police had already been informed. He posed a question as to how the police had been informed about this occurrence, when he informed the complainant at 8-30 a.m. and police had reached there prior to his arrival. He thus submitted that prosecution has miserably failed to prove its case against the accused/appellant.

12. While referring to Criminal Appeal No.871 of 1995, he submitted that there is no convincing evidence to connect the accused Muhammad Aslam (since acquitted) with the commission of this offence except evidence of recovery of P.W.10 Abdul Qayyum which has been disbelieved by the trial Court. He thus submitted that there is force in this appeal and the same merits dismissal.

13. Conversely it is submitted by Dr, Khalid Ranjha, learned counsel for the complainant, that very registration of F.I.R. shows that complainant has approached the prosecution agency with clean hands, that had he got some ill-will against the accused he could very easily implicate them, that F.I.R. Exh. P-I/1 is not a tutored document and gives a natural resume of incident, that complainant involved the accused in his supplementary statement when he was informed about the participation of accused in the commission of this occurrence that trial Court has rightly believed the deposition of Gul Muhammad P.W.7, He however submitted that trial Court was not justified in discarding the evidence of P.W.8 and P.W.9 Haji Sultan and Tariq Hanif. He submitted that great stress has been laid on the point that trial Court has based conviction on the sole testimony of Gul Muhammad P.W.7 without any further independent corroboration. He submitted that no particular number of witnesses is required to prove a fact and finding about proof of fact may be based on testimony of a single witness as Evidence Act attaches more importance to quality rather than quantity. He submitted that if the statement of Gul Muhammad P.W.7 is tested on the said touchstone, then it would be seen that trial Court was right in passing the impugned judgment and relied upon Sher Ali Khan v. The State (1985 PCr.IJ 349). He further submitted that medical evidence of Dr. Farooq Ahmed P.W.3 also lends support to the deposition of p.W.7 Gul Muhammad and as such deposition of P.W.7 has rightly been believed by the trial Court. He has thus submitted that there is no force in this appeal and the same be dismissed.

14. While adverting to Criminal Appeal No.871/95 he submitted that since the ocular evidence of P.W.7 stands corroborated from the statements of Haji Sultan and Tariq Hanif P.W.8 and P.W.9 respectively, so the trial Court was not justified in awarding lesser punishment to the appellant and acquitting his co-accused Muhammad Aslam.

15. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties. The admitted position is that initially none has been nominated in the F.I.R. Exh.P.I/1 for causing the murder of deceased. However, later on, prosecution has brought on record the evidence of Gul Muhammad P.W.7, Haji Sultan P.W.8 and Tariq Hanif P.W.9 to connect the instant appellant as well as acquitted accused Muhammad Aslam for causing the murder of deceased. It is also fact that Haji Sultan P.W.8 has deposed about the joint extra judicial confession of accused. Admittedly such type of extra judicial confessions have got no legal value and as such has rightly been discarded by the trial Court. So far as the statement of Tariq Hanif P.W.9 is concerned that can't be treated except the statement of a chance witness, hence carries no weight. Again P.W.9 has not assigned any specific part to the appellant, but has simply deposed that he (appellant) was seen going towards the shop of deceased. His presence at 2-00 a.m. over there hardly stands to reason. There remains the solitary statement of Gul Muhammad P.W.7 who has implicated the appellant in this case. If the statement of Gul Muhammad P.W.7 is analysed, scanned and is directed, it will be seen that it also does not inspire confidence and appears to be manipulated and procured one. The stand of P.W.7 is that he had gone to the a house of complainant as he had to collect some amount from him for purchasing mobil oil from Faisalabad. His going to the complainant's house at that odd hours for such work hardly rings true. His contention stands belied from the fact when he admits that he was not paid any amount at that time. He also admits that he had gone to purchase mobil oil after about one month of that incident and that he was given the amount after two months of that occurrence. If there was no urgency of purchasing mobil oil, how his presence at that odd hours of the night can be believed. Again P.W.7 admits that mobil oil is also available at Athara Hazari. This admission also creates doubt about his claim for purchasing the same from Faisalabad simply on the ground that it was a bit cheaper over there. Thus all these facts create a reasonable doubt in the mind of a prudent person about the presence of Gul Muhammad R.W.7 at the place of occurrence.

16. It may also be mentioned here that efforts have been made to seek corroboration of the statement of P.W.7 form the medical evidence which has come on record through the statement of Dr. Farooq Ahmed P.W.3. Even if it is assumed that medical evidence lends support to the statement of P.W.7, it will only be used to the extent of infliction of injuries on the person of injured/deceased and to the extent of weapon used, but it cannot throw any light on the identity of the assailant as held in Machhaia and 2 others v. The State (PLD 1976 SC 695). Learned counsel for the complainant has submitted that law does not require a particular number of witnesses to prove a fact and that if attaches more importance to quality rather than quantity and has relied upon Sher Ali Khan v. The State (1985 PCr.LJ 349). There is no cavil to this legal proposition. There is also no dearth of authorities in which it has been held that conviction can be recorded on the solitary statement of a witness. But in those cases the said statement has come up to the standard formulated for the said purpose. The eminent jurists have classified the ocular testimony into three categories; (1) Wholly reliable, (2) Wholly unreliable, (3) Partly reliable and partly unreliable. In the first category of proof, the conviction may safely be sustained on uncorroborative testimony. In the second category even strongest corroboration may not rehabilitate such evidence. In the instant case the testimony of Gul Muhammad P.W.7, keeping in view the admission referred above can very conveniently be placed in second category. Thus, it is held that trial Court was not justified in basing conviction of accused/appellant solely on the statement of Gul Muhammad P.W.7. Accordingly, appeal is accepted and the impugned judgment is set aside. The appellant Muhammad Khalid is ordered to be released forthwith if not required in any other case. For all these reasons I am of the view that there is no force in the submissions made by the learned counsel for the complainant and trial Court has rightly acquitted Muhammad Aslam accused.

17. For what has been stated above Criminal Appeal No.871/95 against the acquittal of Muhammad Aslam and for the enhancement of sentence of sentence to Muhammad Khalid appellant is dismissed.

N.H.Q./M-803/L Appeal accepted.