MUHAMMAD BANARAS Versus STATE

1. USMAN ALI SHAH, J.‑‑ This appeal, by leave of the Court, has arisen from the judgment dated 7‑12‑1983 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Cr. Appeal No.867 of 1980 of the appellants against the judgment of the Sessions Judge, Attock. dated 29‑7‑1980 was dismissed and convictions and sentences of the appellants were upheld.

2. Briefly, the prosecution story is that about 2 years prior to the occurrence, Allah Ditta son of Ghulam Mohyuddin, a nephew of Muhammad Banaras appellant and Fazal Din brother of Nur Muhammad co‑accused and Ghulam Hussain appellant, were murdered over land dispute between the parties. Ghulam Mehdi (deceased) alongwith his first cousin and brother‑in‑law Abdul Ghani (PW.11) and six,others were, charged' for the twin murder.

3. A few days prior to the present occurrence, Ghulam Mehdi (deceased) and Abdul Ghani (PW.11) were granted bail by the Supreme Court in the abovementioned case. On 1‑6‑1979, Ghulam Mehdi (deceased) in company of his brother‑in‑law and first cousin, Abdul Ghani (PW.11) had gone to Pindigheb in connection with some domestic affair. At about Degarwela, they were sitting in the hotel of one Mota near a Bus‑stand at Pindigheb and were waiting for a bus to return to their village. Meanwhile, they met Sultan Mumariz Khan (PW.12) and Allah Dad (CW.1) who were also present there. After a little while, Ghulam Mehdi (deceased) went outside the hotel for making water. The moment he reached in front of Khan Hotel in the same area, accused Ghulam Mohyuddin and Nur Muhammad armed with pistols and Muhammad Banaras and Ghulam Hussain armed with Churris, appeared from the north, challenging Ghulam Mehdi (deceased). Thereupon, PW Abdul Ghani, Sultan Mumariz Khan and Allah Dad came out of the hotel and saw that Nur Muhammad fired a shot with his pistol, hitting Ghulam Mehdi near his. left ear. Another shot was fired by Ghulam Mohyuddin which hit Ghuam Mehdi on his left thigh. As a result, Ghulam Mehdi fell down. Thereafter, Muhammad Banaras and Ghulam Hussain appellants started dealing Churri blows to the deceased, and their co‑accused Ghulam Mohyuddin and Nur Muhammad threatening people that if anybody dared to come near, he would also be done to death. As a result of the injuries, Ghulam Mehdi (deceased) died on the spot. Having accomplished their design, the accused decamped. P.W. Abdul Ghani then went to the Police Station and lodged the F.I.R. (EX.PK)

4. After recording the F. R., S.I. Raja Mahmood Akhtar (PW.13) accompanied by complainant Abdul Ghani went to the spot, where he prepared injury sheet (Ex.PL) and inquest report (Ex.PO) of the dead body of Ghulam Mehdi (deceased) and then despatched the dead body to the local mortuary through F.C. Muhammad Zaman (PW.2). He collected blood‑stained earth vide memo. (Ex.PD) and sent it in parcel to the Police Station. He also recorded the statements of the PWs. On the following day he seized clothes of the deceased and got prepared the site plans (Ex.PJ) and (PJ/1) from Hayat Muhammad Draughtsman (PW.10).

5. On 5‑6‑1979, S.I. Raja Mahmood Akhtar (PW.13) arrested all the 4 accused from the Dhok Jilani. On the following day, he in the presence of Sher Muhammad (PW.8) and Nawab Khan (not produced), recovered pistol (P.7) with bullets (P.8/1‑3) at the instance of Nur Muhammad and pistol (P.9) with bullets (P.10/1‑‑3) at the instance of Ghulam Mohyuddin accused. On 13‑9‑1979 he further recovered Churris (P.11) and (P.12) respectively at the instance of Muhammad Banaras and Ghulam Hussain appellants in the presence of Shah Nawas (PW.9) and Sharaf Din (not produced).

6. Doctor Muhammad Afzal Malik, M.O. Pindigheb (PW.1) conducted the autopsy on the dead body of Ghulam Mehdi (deceased). He found 11 injuries on the dead body. The result of his examination was that the death of the deceased occurred due to shock and haemorrhage, as a result of injuries Nos.4, 5 and 8 to 11. These injuries, in his opinion, were individually and collectively sufficient to cause death in the ordinary course of nature. According to him, injuries Nos.3, 4 and 7 were caused by fire‑arm and injuries Nos.2, 9, 6, 8, 9, 10 and 11 by sharp‑edged weapon while injury No.1 by blunt weapon. The time between the injuries and death was immediate.

7. In consequence of the trial, the learned Sessions Judge Attock vide his judgment dated 29‑7‑1980 found accused Muhammad Banaras and Ghulam Hussain guilty for the murder of the deceased, accordingly convicted them and sentenced each one of them to death. Fines were also imposed upon them. Accused Ghulam Mohyuddin and Nur Muhammad were, however, found not guilty of the charge and were acquitted.

8. Muhammad Banaras and Ghulam Hussain appellants challenged their conviction and sentence before the Lahore High' Court, Rawalpindi Bench, Rawalpindi and a learned Division Bench which heard the appeal dismissed the same and maintained their conviction and sentence. Hence this appeal by leave of this Court.

9. We have heard the learned counsel for the parties and gone through the evidence on record. The two Courts below relied on the evidence of Sultan Mumariz Khan (PW.12) and Abdul Ghani (PW.11). A perusal of their judgments will show that they did not place implicit reliance on the testimony of Abdul Ghani (PW.11) but according to them, he is supported by Sultan Mumariz Khan.(PW :12) who is neither related to the complainant party nor has he any enmity with the accused party.

10. The two Courts below disbelieved the overwhelming evidence furnished by the defence witnesses Ghulam Dastagir (PW.7) was Investigating Officer of the occurrence. He stated that as many as 43 persons swore on the Holy Quran that Ghulam Mohyuddin and Nur Muhammad, the acquitted accused, were at the time of occurrence present in their village and have been falsely charged for the murder of the deceased; that according to the evidence collected by him, it transpired that Muhammad Saeed and Farman Shah were the co‑accused of the present appellants and that Nur Muhammad and Ghulam Mohyuddin were substituted for Muhammad Saeed and Farman Shah; that many persons appeared before him on behalf of the deceased party to depose against Ghulam Mohyuddin and Nur Muhammad but they were not prepared to state so on the Holy Quran and that PW Sultan Mumariz Khan did not appear before him on that occasion. This aspect of the case is established from the judgment of the two Courts below while acquitting Ghulam Mohyuddin and Nur Muhammad on evaluation of the evidence on record.

11. Before proceeding further to examine the case, it may be mentioned that Muhammad Saeed and Farman Shah also appeared as witnesses at the trial and accepted the responsibility of murdering the deceased. Now, as we have already observed, the Courts below while believing PIN Abdul Ghani, a relative of the deceased, have predominantly sought inspiration from the evidence of PW Sultan Mumariz Khan on the ground that he is disinterested witness. It would appear that the two Cqurts below have not analysed the evidence on record in holding PW Sultan Mumariz Khan a disinterested witness. We will examine his statement at an appropriate stage.

12. Abdul Ghani PW was the first cousin and brother‑in‑law of the deceased. He alongwith Ghulam Mehdi (deceased) was charged for the twin murder of Allah Ditta son of Ghulam Mohyuddin accused, and Fatal Din, a brother of Nur Muhammad and Ghulam Hussain accused. It, therefore, does not stand to reason that although PW Abdul Ghani was present, he was left spared by the accused in the present case. In this view,. if he were present on the spot at the time of occurrence, the appellants would not have spared his life. He did not cite any witness to confirm his presence on the spot at the time of occurrence. This fact is admitted by him in cross‑examination that. "No witness has been cited by the prosecution confirming his presence at the spot". This shows that his claim that he had witnessed the occurrence is doubtful.

13. As regards Sultan Mumariz Khan (PW.12), .he denied his friendship with the deceased but in this behalf he is contradicted by PW Abdul Ghani who stated in cross‑examination that, "It is correct that Sultan Mumariz Khan and the deceased were friends". Thus, PW Sultan Mumariz Khan is not a disinterested witness as held by the two Courts below‑and so his evidence cannot be accepted as true without corroboration from independent source which is wanting in this case.

14. Our assessment of the evidence is that the prosecution has withheld from the Court material details of the' occurrence and for that matter the murder of the deceased is shrouded in mystery. In the absence of clear and straightforward evidence brought by the prosecution on record, we have come to the conclusion that the prosecution have charged the appellants merely on account of enmity with them. But in a criminal case, mere enmity of the complainant party with the accused party will not carry credence against the accused unless the prosecution is able to bring on record ocular as well as circumstantial evidence of unimpeachable character.

15. The two Courts below have take into consideration evidence adverse to the case of the appellants but avoided evidence favourable to them. It may be observed that in order to reach a correct conclusion in a criminal case the duty of the Court will be to keep the prosecution and defence evidence in juxtaposition. Now Allah Dad has been cited as eye‑witness of the occurrence in the F.I.R. He was abandoned by the prosecution and appeared as court‑witness. His evidence is that it were Muhammad Saeed and Farman Shah who enacted the tragedy. Muhammad Saeed appeared as DW while Farman Shah as a CW. They accepted the responsibility of murdering the deceased. The two Courts below did not touch upon this aspect of the case. CW Allah Dad is a disinterested person. His evidence has beclouded the prosecution case and our conclusion is that in the absence of a clear picture of the occurrence before the Court, the charge against the appellants is not free from doubt.

16. A reference to the medical evidence will show lacerated wound on the deceased with, burnt area around it and blackening area on corresponding hole on collar of the shirt. It is therefore, clear that he was fired upon with the pistol/revolver within a distance of inches, say at least 6 inches. According to the site plan, the deceased was fired upon from a distance of 11 feet. The medical evidence thus belies the claim of the prosecution.

17. From what has been discussed above, it is clear that the prosecution has not come forward with real episode of the occurrence. In the circumstances, the guilt of the appellants in the present case is not free from doubt. We find that the evidence against the appellants is in no way distinguishable from the evidence given against Ghulam Mohyuddin and Nur Muhammad co‑accused who were acquitted and as the prosecution case has been disbelieved against Ghulam Mohyuddin and Nur Muhammad, it deserves the same treatment as regards the appellants.

18. The occurrence took place in broad daylight in a very busy bazar and one wonders as to how not a single disinterested person came forward to depose against the appellants. Our conclusion, therefore, is that the prosecution has placed distorted facts of the occurrence before the Court and in the circumstances the accused are entitled to the benefit of doubt.

19. As a result, we hold that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Consequently we set aside the impugned judgments of the two Courts below and while accepting this appeal, we direct that the appellants shall be set at liberty forthwith if not required in any other case.

20. M.Y.H./M‑391/S Appeal allowed.