KHUSHI MUHAMMAD Versus STATE
FAZAL. ILAHI KHAN, J.‑‑‑This appeal through leave of the Court is directed against the judgment dated 22‑4‑1991; whereby, the appellant's petition against the order of acquittal of respondents Nos.2 to 4, from an offence under section 302/34, P.P.C., passed by learned Sessions Judge, Kasur, dated 12‑9‑1:989, was maintained.
2. Leave was granted to consider the contention of the learned counsel for the appellant that the eye‑witnesses had no motive for falsely involving the respondents in the case and that their evidence has been rejected by the Courts below without any legal justification. That the respondents had admitted in their bail application that the deceased was killed by their firing but this aspect was, inadvertently, not considered by the Courts below. It was prayed that the appellant be permitted to produce additional evidence in this regard. Appellant, however, did not press this petition against Bashir Ahmed respondent. While granting leave it was observed that the appellant's application for additional evidence could be decided by the Appellate Bench. ,
3. The occurrence in this case took place on 30‑7‑1988 at 11‑00 a.m. in village Santok Sar, Kasur, Police Station ' A' Division and its report was lodged by Khushi Muhammad (appellant) (P.W.6), father of Zulfiqar deceased the same day at about 12‑05 p.m. at the hospital. It was reported that he alongwith his sons Sift Ilahi and deceased Zulfiqar was proceeding from the garden, which he has got on lease from Ziaur Rehman, to their house for taking lunch at about 11 a.m. and when they reached near the Haveli of Bashir Ahmed son of Bakhsh Ali, the acquitted accused Bashir Ahmed who was empty‑handed, Muhammad Idrees respondents armed with gun and Muhammad Hussain alias Kala accused/respondent armed with stick, both sons of Bashir Ahmed, emerged from their Haveli and on the Lalkara of Bashir Ahmed Muhammad ldrees respondent fired at Zulfiqar which hit him on his left flank. Muhammad Hussain respondent attacked him with a stick and injured him on his back and chest. The injured fell down on the ground whereafter the accused decamped‑ from the spot. Zulfiqar was immediately. removed to h9spital where he succumbed to his injuries. The complainant was proceeding to the police station for lodging the report but in the meantime Noorul Hassan, S. I. (P.W.10) met him and recorded his statement in the hospital. The report was sent to the police station for registration of case. He prepared ' the injury‑sheet and inquest report in the District Headquarter Hospital and sent the dead body to mortuary for post‑mortem examination. In the meantime Muhammad Iqbal Butt, ‑SHO (P.W.12) on hearing of the occurrence came and took the investigation in his hand from ASI Noorul Hassan.
4. During the investigation blood‑stained earth was recovered from the 'spot. Muhammad Idrees accused/respondent on his arrest led the police to the recovery of the gun allegedly used in the commission of the offence licensed in the name of Muhammad Bashir, father of Muhammad Idrees accused.
5. In this case prosecution relied on the ocular evidence furnished by Khushi Muhammad complainant (P.W.6), Mubammad Zaffar (P.W.7) and Allah Wasaya (P.W.5). The medical evidence was furnished by Dr. Rafiqul Hassan (P.W.11) District Headquarter Hospital. Further corroboration was sought from the motive set up by the complainant and recovery of weapon of offence (gun) at the instance of Muhammad Idrees accused and the recovery of blood from the spot.
6. The learned Trial Judge found the prosecution evidence interested, contradicted inter se and unreliable. It was held that motive was not established and that the medical evidence did not support the ocular evidence. On such grounds accused/respondents were acquitted. State did not file any appeal against the acquittal .and the learned High Court did not interfere with the order of acquittal in revision filed by the complainant on similar grounds` given by the learned Trial Judge.
7. We have heard the learned counsel and perused the record. It is not denied that the occurrence took place at about 11 a.m. near the house of the accused/respondent and report of the occurrence was lodged promptly in the hospital on the arrival of the A.S.I. just after the occurrence after his having come to know of the same. When examined in Court the complainant fully supported his version given in the F.I.R. as stated above and his statement was supported by Muhammad Zaffar (P.W.7) a disinterested witness who has stated that at about 11 a.m. he was proceeding from his house to the Bazar he saw Sift . Ilahi, Khushi Muhammad and Zulfiqar going ahead of him and when they reached near the Haveli of Bashir accused/respondent all the accused/respondents came out of the Haveli. Muhammad Hussain had Dang, Muhammad Idrees had a gun while Muhammad Bashir accused was empty‑handed. On seeing the accused Zulfiqar wanted to go back at which Bashir accused raised a Lalkara that the complainant party would be taught a lesson for the insult of the last night. On such Lalkara Idrees fired with his gun which hit Zulfiqar at his left flank. Muhammad Hussain accused gave 2 stick blows to Zulfiqar, which hit on his back side of his head. Zulfiqar fell down whereafter the accused left the spot. They, the witnesses, took Zulfiqar to hospital, Kasur, at cot and on reaching the hospital Zulfiqar expired. That after he joined the police investigation Idrees accused led the police party to the recovery of gun P‑4 from his house. He also produced its licence which were taken into possession vide recovery 'memo. Exh. PE which is attested by him. That in 'his presence at the instance of Muhammad Hussain accused ' Dang‑' P‑3 was recovered from the cattle‑shed vide memo. Exh. PF attested by him and one Nazir P.W. This witness was thoroughly cross‑examined but nothing material was brought on record to discredit his version. The only attack by ‑ the defence against the witness is that he was a business‑partner of the deceased at the relevant time. The presence of P.W.7 is further supported by Allah Wasaya (P.W.5) who has deposed that on his arrival just after the occurrence he found the complainant and P.W.7 present at the spot and that he had accompanied the dead body to hospital.
8. It appears from the judgments of the learned Courts below that the ocular evidence has been discarded for immaterial minor discrepancies. Similarly the evidence regarding, motive though established through the" statement of the complainant, has been discarded on the ground that the minor children, parties to the earlier quarrel, have not been produced in evidence, though no other, motive has been suggested by the defence. Similarly the witnesses have been cross‑examined thoroughly as to the routes adopted by the P.Ws. for taking the injured to the hospital. Such cross‑examination has not been pursued to its logical conclusion for creating any doubt regarding the presence of the P.Ws. at the spot. The observation of the Courts below that the occurrence did not take place in the manner and at the site given by the prosecution witnesses is hypothetical and whimsical.
9. The medical evidence also, prima facie, supports the ocular evidence and the hypothetical question on which the statement of the Doctor was found contradictory to the ocular evidence is not correct as the prosecution witnesses, did not allege that the deceased was fired at from certain distance more so when fire‑arm and blunt weapon injuries were found on the person of the ,deceased.
10. For all‑ these reasons and several other which need not be discussed in detail we are inclined to hold that the conclusion reached by the learned High Court is based on flimsy and irrelevant pieces of, evidence brought out in cross-examination which had no bearing on ‑fhe prosecution case. The appraisal of evidence is not in consonance with established principle of administration of criminal justice. The prosecution evidence has not been considered in its true perspective specially when occurrence is proved to have taken place in front of the Haveli of the accused and no motive for false charge has been suggested and in presence of the motive advanced by the complainant. Allah Wasaya P.W. who had reached the spot just after occurrence had seen Muhammad Zaffar P.W. present at the spot and this part of his statement has not been challenged in cross‑examination.
11. For the reasons stated above we are of the view that the Courts below neither properly appraised the evidence nor they have gone )deeper into the merits of the case. The findings are superfluous and based on flimsy and immaterial pieces of evidence brought out in lengthy cross‑examination in the statements of the prosecution witnesses who have been examined after about nine months of the occurrence.
For the reasons the appeal is allowed, the judgment and order of the Courts below as regards Muhammad Idrees and Muhammad Hussain are set aside and the case is remanded to the Sessions Judge, Kasur, for re‑trial of the accused and decision afresh on merits. The question of additional evidence is to, be considered by the Trial Judge.
SAIDUZZAMAN SIDDIQUI, J
FAZAL ILAHI KHAN. J
SAAD SAOOD JAN, J. ‑‑‑I regret I am unable to support the judgment proposed to be delivered by my learned brother Fazal Ilahi Khan, J.
2. Bashir Ahmad and his sons, Muhammad Idrees and Muhammad Hussain, were tried by the Sessions Judge at Kasur on the charge under section 302, read with section 34, Pakistan Penal Code for causing the death of Zulfiqar alias Kala, deceased. The learned Sessions Judge found them not guilty and acquitted them of the said offence. The State accepted the judgment of the trial Court but Khushi Muhammad, father of the deceased, filed a revision petition in the High Court. A learned Single "Judge reappraised the evidence on the record and affirmed the findings of the trial Court; accordingly, he dismissed the revision petition. Khushi Muhammad then approached this Court for leave to appeal. The leave was granted with the following observations:‑‑
"After going through the record we feel that the submissions made by the learned counsel required examination. Accordingly leave is granted against Muhammad Idrees and Muhammad Hussain respondents but the petition in so far as it relates to Bashir Ahmad respondent is dismissed without prejudice to the case of aforesaid respondents on this ground."
3. The occurrence took place on 30‑7‑1988 at 11‑00 a.m. A day earlier, according to the prosecution, there had been a quarrel among the children of the parties. At the relevant time the deceased along with his brother and father was returning to his house from a garden which he had taken on lease. When he reached near the Haveli of Bashir Ahmad the latter with his two sons Muhammad Idrees and Muhammad Hussain, came out. Muhammad Idress was armed with a shot‑gun, Muhammad Hussain was carrying a Dang and Bashir Ahmad was empty‑handed. As soon as they confronted the deceased Bashir Ahmad raised a Lalkara. Immediately thereafter Muhammad Idrees fired at the deceased who was hit in the left flank. Muhammad Hussain then struck the deceased on the head twice with his Dang. The deceased fell down while Bashir Ahmad and his sons ran away. Apart from the father of the deceased the occurrence was also witnessed by one Muhammad Zafar.
4. Soon after the occurrence the deceased was removed by his father and some others to the local civil hospital. He died before any medical assistance could be given to him.
5. Police Station City Kasur was at a distance of six furlongs from the scene of occurrence. After hearing about the occurrence Sub‑Inspector Noor‑ul Hassan reached the hospital. Khushi Muhammad (P.W.6) made a statement before him on the basis of which a case was registered at the said police station on the same day at 12‑30 p.m.
6. The post‑mortem examination of the deceased was performed by Dr Rafiq Hussain who was posted as Medical Officer in the Civil Hospital at Kasur. The deceased had three injuries on his person. One was a fire‑arm wound on the left lateral side of the chest. The other two were lacerated wounds on the top and back of the head. One of the lacerated wounds, the doctor opined, could be caused by a fall on a hard surface. There was blackening around the fire‑arm injury.
7. After their arrest recoveries of the weapons of offence were made from Muhammad Idrees and Muhammad Hussain but these are of no significance as there is nothing on the record to show that the weapons so recovered were used to inflict injuries on the deceased during the course of occurrence. Bashir Ahmad held a licence for the gun allegedly produced by Muhammad Idrees.
8. Bashir Ahmad and his sons pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceased and alleged that they had been falsely implicated on account of business rivalry.
9. The case of the prosecution against Bashir Ahmad and his sons rests entirely upon the ocular testimony provided by Khushi Muhammad (P.W.6) and Muhammad Zafar (P.W.7). Their presence at the scene of occurrence was sought to be confirmed by the prosecution from the statement of Allah Wasaya (P.W.5) who allegedly reached there shortly after the attack on the deceased. As already pointed out Khushi Muhammad . (P.W.6) was father of the deceased. Allah Wasaya (P.W.5) was a ether of Khushi Muhammad (P.W.6). Although Muhammad Zafar denied 'that he had Any connections with Khushi Muhammad (P.W.6) but Allah Washya admitted that Khushi Muhammad (P.W.6) and Muhammad Zafar (P.W.7) were partners in procuring leases of gardens. The trial Court as well as the High Court subjected the testimony of these witnesses to close scrutiny and thought that it was not of the quality upon which conviction of the accused on a capital charge could be founded.
10. The law governing appeals against acquittal has been reviewed at some length by this Court in the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). The conclusions at which this Court arrived are:
"(I) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re‑appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well‑accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the Trial a Court below confirmed the assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) mis‑read such evidence; (c) received such evidence illegally.
(3) In either case the well‑known principles of re‑ appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re appraisal‑ of the evidence it comes to the conclusion different from that of the Court acquitting the‑accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. "
I have kept these observations before me in recording my judgment.
11. As stated in the First Information Report the motive for the occurrence ‑was a quarrel among the children of the parties. The only witness who deposed about the quarrel was Khushi Muhammad (P.W.6). He admitted in his cross-examination that he was not present at the time of‑the quarrel. There is thus no direct evidence about it. However when appeared in the Court‑he gave a more detailed version about the incident which had taken place a day earlier. He '1r stated:‑‑
"A day before the occurrence there had been a quarrel between the children with Idrees accused. Idrees and a Badmash; came to our house in the evening. Myself and Zulfiqar (i.e., the deceased) had gone to the police post. My report was entered at the police post and the police accompanied me to the house of the accused. When they were at the door of the house of the accused, the accused ran away on seeing them. "
A copy of the report recorded by the police was not produced at the trial. In his cross‑examination Khushi Muhammad (P.W.6) stated that he had reported the incident to a fat police officer. The said fat police officer was admittedly Sub Inspector Noor ul Hassan (P.W.10). This police officer did not utter a word about the report allegedly made to him a day before the occurrence. In the circumstances the Trial Court and the High Court could not be said to have erred in holding that the motive had not been established by the prosecution.
12. As stated earlier the occurrence took place near the Haveli of Bashir Ahmad which is situate, as the Investigating Officer reluctantly admitted, in a blind street. Neither Khushi Muhammad (P.W.6) nor Muhammad Zafar.(P.W.7) lived in that street. If the statement of Khushi Muhammad (P.W.6) with regard to motive, as reproduced above, was to be believed the venom of the accused party should have been directed against him for it was he who had first gone to the police station to lodge a report and later taken the police to their house. The deceased played merely the minor role of accompanying his father to the police station. It is therefore surprising that even though Khushi Muhammad (P.W.6) was present on the spot tie had been spared and instead the deceased was made the main target of attack by the accused party. In the circumstances the presence of Khushi Muhammad (P.W.6) at the scene of crime at the relevant time becomes somewhat doubtful.
13. Zafar (P.W.7) lived, in Basti Inayat Shah which according to the Investigating Officer was five or six acres from the place of occurrence. On his own showing he was a chance witness and, as earlier stated, he was a business associate of Khushi Muhammad (P.W.6).
14. The statement of Allah Wasaya (P.W.5) with regard to the presence of Khushi Muhammad (P.W.6) and War (P.W.7) at the spot, on account of his relationship with Khushi Muhammad, can hardly be placed at a higher footing than that of his brother.
15. If the occurrence is reconstructed entirely in the light of the medical evidence it will appear that the deceased was struck in the head first by a blunt weapon. On receiving the‑blow he fell down on a hard surface when he suffered his second lacerated wound. As he lay prostrate in the street the assailant armed with the gun approached him and by placing the barrel a few inches away from his body fired, hitting him in, the left flank. This picture drawn from the medical evidence is somewhat different from the ocular account which states that on seeing the assailant the deceased tried to turn back; before he could retreat, he was fired at and given Dang blows. This discrepancy in the two pictures also makes it necessary that the ocular account should not be acted upon unless it is corroborated by independent evidence.
16. From the side of the complainant party much reliance was placed on an alleged admission by the accused party in a bail application filed on behalf of Muhammad Hussain in the Court of Session at the pre‑trial stage. The relevant extract from the application reads as follows:‑‑
Now this application was not pari of the evidence on the record. The attention of none the accused was drawn to it during the course of his examination under section 342 of the Criminal Procedure Code. Apart from that the version contained in this admission is at variance with the case of the prosecution, for besides raising pleas of private defence of person and accidental death it admits tire presence of Bashir Ahmad alone on the scene of occurrence at the relevant time. In view of this position the prosecution is not likely to rely upon it in the retrial as directed by my learned brother.
17. For the reasons stated above I am of the opinion that the Courts below were justified in not accepting the ocular evidence on its face value. I would accordingly dismiss the appeal.
COURT ORDER
In view of the majority opinion this appeal is allowed, the judgment and order of the Courts below as regards Muhammad Idrees and Muhammad Hussain are set aside and the case is remanded to the Sessions Judge, Kasur, for retrial of the accused and decision afresh on merits.
N.H.Q./K‑293/S Appeal allowed