MUHAMMAD YASIN Versus THE STATE

ASLAM RIAZ HUSSAIN, J.-- Muhammad Yasin son of Abdur Rehman aged about 22 years, was tried for offences under sections 302 and 307, P. P. C. for the murder of Muhammad Yousaf (deceased) and having made a murderous assault on Khadim Hussain son of Mahnda Khan (C. W. 1) by the Sessions Judge, Rawalpindi vide his judgment dated 27th May 191,8. The learned trial Court found him guilty of the above-noted offences and sentenced him to transportation for life under section 302, P. P. C. and five years' R. I., with a fine of Rs. 200, under section 307, P, P. C, In default of payment of fine he was ordered to undergo another four months' R. I. All the sentences were ordered to run concurrently. He has come up in appeal against his conviction and sentences. Subedar Jahandad father of the deceased has filed a revision (i.e. Criminal Revision No. 116 of 1969), for the enhancement of the sentence awarded to Muhammad Yasin appellant from transportation to death. We propose to dispose of both the appeal and revision by a single judgment.

2. The facts of the case briefly stated are that on the night between 15/16th October 1967, a tamasha had been arranged to celebrate the marriage of one Barkat Hussain which had taken place earlier in the day. The tamasha took place in the courtyard of the house of Multan Khan son of Barkat Khan in Dhok Rajam Dakhli Sangani, Police Station Gujar Khan, district Rawalpindi. Muhammad Yousaf deceased alongwith his elder brother Muhammad Ismail (P. W. 7) and maternal uncle Khadim Hussain son of Jalal Din (P. W. 8) also went to see the tamasha. A large number of persons including Amir Kabul (P. W. 6) and Khadim Hussain son of Mahnda Khan C. W. 1, had come to see the tamasha. Muhammad Yasin appellant had also come theft. According to the First Information Report lodged by Amir Kabul P. W., Muhammad Yousaf deceased, Muhammad Ismail P. W., Khadim Hussain P. W. and Khadim Hussain C. W. 1, were sitting at a short distance, in front of Amir Kabul P. W. Khadim Hussain C. W. 1 was sitting at a place behind Muhammad Yousaf deceased while Muhammad Yasin appellant was sitting towards right hand side of Amir Kabul. At about mid-night Muhammad Yasin appellant who was armed with a pistol, raised a lalkara addressing Muhammad Yousaf (deceased) and saying "Get ready. Now I teach you a lesson for having illicit relation". He then fired a shot with his pistol at Muhammad Yousaf but it hit Khadim Hussain, C. W. 1 who, (as already mentioned) was sitting behind Muhammad Yousaf deceased. The shot hit him on the front side of the right thigh. Muhammad Yousaf deceased got up and tried to run away but Muhammad Yasin appellant fired another shot which hit Muhammad Yousaf deceased in the back, whereupon he fell down. Muhammad Yasin appellant then ran away. Amir Kabul, Muhammad Ismail and Khadim Hussain son of Jalal Din P. Ws. chased the appellant but the latter threatened them with the pistol saying that if anyone came near him, he would be shot down, and thus he managed to escape. Muhammad Yousaf died at the spot. Amir Kabul (P. W. 6) left the place and proceeded to Police Station Gujarkhan for lodging the report. He reached there at 7 o'clock in the morning and reported the incident to Abdul Hafiz Beg, A. S. I. (P. W. 9). The latter recorded the First Information Report, Exh. P. A. at 7-30 a. m. on 16th October 1967. Since Shabbir Hussain, the S. H. O. of the Police Station was not present, Abdul Hafiz Beg A. S. I. accompanied Amir Kabul to the spot. When he reached near village Bhadana, he met Khadim Hussain son of Mahnda (C. W. 1) who was being brought 'on a cot in an injured condition. He recorded the latter's statement, noted down his injuries and sent him for medical examination. He then proceeded to the site and prepared the injury statement Exh. P A. and inquest report Exh. P. J. of the deceased. He sent the dead body to the mortuary under the escort of Umraz Khan F. C. (P. W. 3). After that he recorded the statements of the other witnesses present at the spot. Neither blood nor any empty cartridge was found at the spot. The appellant was not traceable as he was said to have absconded. He was produced before Abdul Hafiz A. S. I. on 18th October 1967, by Amir Kabul, P. W.

6. At that time the appellant had the pistol (Exh. P. 1) with him which he produced before the A. S. I. It contained three live cartridges Exh. P. 2/1-3. The A.S.I. took the pistol alongwith the cartridges into possession vide memo. Exh. P. B. Subsequently the Investigating Officer, i.e. Abdul Hafiz A. S. I. got the statements of Amir Kabul, Muhammad Ismail and Khadim Hussain son of Jalal Din P. Ws. recorded under section 164, Cr. P. C. He then challaned the appellant, who was ultimately committed for trial to the Court of Session. The result of the trial has already been given above.

3. Dr. Haji Ahmad Janjua, Medical Officer, Gujarkhan, who medically examined Khadim Hussain son of Mahnda Khan (C. W. 1) on 16-10-1967 at 12-45 a. m. found a bullet wound of entry 1/5' in diameter op the front of his right thigh, 3 " from the upper border of the knee-cap. There was a bole with slightly blackened margins on the white Markeen chaddar worn by Khadim Hussain C. W.

1. The doctor also found a wound of exit, measuring 1/2' x 1/4', on lower inner part of the right thigh, posterior-most part, 1 " above the knee joint. There was hole against it on the white markeen chaddar.

4. The same doctor performed the post-mortem examination on the dead body of Muhammad Yousaf. He found the following injuries on his person:--

(1) A bullet wound of entry 2/5' in diameter on the back of left chest 1' below the inferior angle of the left scapula,

(2) An abrasion 1/2' x 1/4' on the right forehead 1/2' above the outer half of the right eye-brow.

5. At the trial the prosecution produced nine witnesses in all including the eye-witnesses and the witnesses of the recovery of pistol P.

1. The learned trial Court did not rely on the recovery of pistol P.1 from the appellant as a piece of corro borative evidence and excluded it from consideration because the pistol could not in any way, be connected with the crime.

Khadim Hussain son of Mahnda Khan (C. W. 1) who is mentioned in the F. I. R. as one of the persons who saw the occurrence and was even injured by the first shot fired by the appellant, was not produced by the prosecution as having been won over. He was however, examined by the learned trial Court as a Court witness. He did not support the prosecution version narrated above and, instead, stated that numerous persons had gathered to witness the tamasha which was held to celebrate the marriage of Barkat Hussain, that several persons bad started fifing by way of fun and that be received a shot in the thigh accidentally. He stated further that he did not know who had fired the shot which hit hips. He denied having seen Muhammad Yousaf deceased or Muhammad Yasin appellant at the, site. He also stated that he had been taken to the Police Station next morning by a few persons; that he reported the incident to the police but his statement was not taken down by the S. I.

6. The appellant when examined at the trial under section 342, Cr. P. C. denied his guilt and pleaded innocence. He explained the case against him as follows:--

"The witnesses are inimical towards me. We have a dispute with Lal who resides in my village. He had beaten my brother about 2-2 months before the present occurrence. I remons trated with Lai whereat he and Amir Kabul P. W. gave me a beating. Amir Kabul, who has close' intimacy with Lal, had proclaimed that he will teach me a proper lesson. Amir Kabul has made false statement against me at the instance of Lal and the remaining two witnesses are under former's influence.

Lal and Amir Kabul had foisted a false charge against me do account of previous, enmity which I have already detailed above."

7. We have heard the learned counsel for the parties in the appeal as well as in the revision petition for enhancement of sentence. We have also gone through the entire record.

The learned counsel for the appellant contended that the murder had not taken place in the courtyard of Multan Khan at the tamasha as alleged by the prosecution and that is why neither any blood nor any empty cartridge was recovered front the spot. According to him the murder had taken place some where else; that none of the eye-witnesses had seen the occurrence and that the prosecution story, narrated above, had been fabricated subsequently in order to involve the appellant on the basis of suspicion.

8. We have carefully considered the evidence on the record in the light of the above-noted contention. As already mentioned the prosecution case rests almost entirely upon the evidence of the three eye-witnesses namely, Amir Kabul, P. W. 6, Muhammad Ismail P. W. 7 and Khadim Hussain son of Jalal Din P. W.

8. The article recovered during the investigation was pistol Exh. P. 1, but as already mentioned it has been excluded from consideration because it could not, in any way, be connected with the offence. There is thus no independent corroborative evidence available on the record to support the version given by the eye-witness. Out of the above-noted eye-witnesses, Muhammad Ismail (P. W. 7) is the real brother of the deceased. Khadim Hussain son of Jalal Din (F. W. 8) is the real maternal uncle of the deceased and Amir Kabul (P. W. 6) though not related with the deceased, appears to be an old friend of the family of the deceased because Muhammad Ismail P. W. has admitted during the cross-examination that they had relations with Amir Kabul P. W. Since 6/8 years.

9. It is true that none of the eye-witnesses is said to have had any previous enmity with the appellant and as such it can be argued that they have no motive to involve him falsely. But what puts us on guard against their testimony is the fact that although two out of the three eye-witnesses are very close relatives of the deceased, (Muhammad Ismail P. W.7 being his real brother and Khadim Hussain P. W. 8 being his real moternal uncle), the Investigating Officer considered it necessary to get their statements recorded before a Magistrate, under section 164, Cr. P. C., so as to bind them down to the prosecution story. It is common knowledge that whenever there is an apprehension that the eye-witnesses may resile from their statements under section 161, Cr. P. C. then, as a measure of abundant caution, the police gets their statements recorded before a Magistrate under section 164, Cr. P. C. and after such statements are recorded, the witnesses become, more or leas, wedded to such statements. Refer Mian Khan v. The Crown (P L D 1954 Lah. 646). The statements of such witnesses must be scrutinised with great car, for whenever the police gets the statements of witnesses records under section 164, Cr. P. C. it raises a suspicion that they were no made voluntarily. Refer Emperor v. Manu Chik and another (A I R 1938 Pat. 290).

10. Apart from this, as held in Pir Mohd. Khan and 2 others v. The State (P L D 1970 Kar. 399), the mere fact that the prosecution witnesses are not inimical towards the accused, does not mean that what ever they have stated is necessarily true. It is possible, In some 8 cases that as a result of the unwillingness of the actual witness (if any) of the occurrence, the relatives or friends of the deceased may come forward to depose against the accused-person due to a mistaken belief that if the latter had really committed the crime, they would be acting in aid of justice by supporting the prosecution case and making statements as "eye-witnesses" of the occurrence. As held by Mr. Justice Sajjad Ahmad Jan (as a Judge of the High Court of West Pakistan as his Lordship then was) in Lakhmir v. The State (P L D 1968 Qaetta 7 ), whatever the attributes of a witness, the best test of the correctness of his statement in the final analysis, Is its own inherent worth in point of consistency as tested against the physical possibilities and the circumstances surrounding the event to which his testimony relates.

We have scrutinised the statements of the three-eye-witnesses very carefully in the light of the above-noted observations ands vie are inclined to feel that the eye-witnesses have not told the truth. The incident probably did take place during the tamasha held in the courtyard of Multan Khan on the night of the occurrence, and not somewhere else, as contended by the learn defence counsel and was witnessed by a large number of persons,, yet the three eye-witnesses produces, by the prosecution do not appear to have been present or seen the occurrence because tie version given by Amir Kabul P. W. 6, one of the eye-witness in the F. I.R, lodged by him is contradicted by the other evidence on the record and all of them have attempted, at trial, to bring a their statements in conformity with the medical evidence.

11. Amir Kabul P. W. 6 is the first eye-witness to have appeared and deposed in the Court. Ostensibly he is not connected with the deceased but it is he who took up on himself to go to the Police Station and lodge the report while Muhammad Ismail and Khadim Hussain P. Ws. who were respectively the real brother and maternal uncle of the deceased and had also allegedly witnessed the occurrence did not deem it necessary toe 90, to the Police Station, and lodge the report It cannot be said that they remained behind to look after Muhammad Yousaf because he had died Immediately after being shot at. Again awarding to the Investigating Officer, it is he (Amir Kabul P. W.) who produced the appellant before him on 18-10-1967. This would show the extent to which he is interested in the case. As to the character and credibility of Amir Kabul P. W. 6 it would suffice to reproduce a portion of his statement made during the very beginning of his dross-examination:

"I never visit Police Station as lambardar. I do not join investigations. I never appeared as a witness in any other case. Again said that I have never joined investigation, in any other case. I never appeared as witness of recovery in any other case. It is correct that one Sajawal Khan of village Qazian was prosecuted for the murder of his father-in-law namely Bostan Khan. I was a witness for the prosecution in that case. One Channu was accused for rape on Mst. Mukhtar Jan wife of Muhammad Khan. I joined investigation in that case. The above two cases had gone out of my mind while saying -4hat I had never appeared as a witness or joined investigation An any other case.."

12. As already 14entionid Amir Kabul is the person who lodged the F. I. R. He has mentioned therein the places where different persons featuring in the case, namely, the appellant, the deceased and the eye-witnesses including Khadim Hussain C W. 1, were sitting at the relevant time. He has stated in the F. I. R. that Muhammad Yousf deceased, Muhammad Ismail P. W. 7 and Khadim Hussain P. W. 8 were siding at a short distance in front of him; Khadim Hussain, son of Mahnda Khan (C. W. 1) was sitting behind Muhammad Yousaf (deceased) and Muhammad Yasin appellant was' sitting on his (Amir Kabul's) right hand side.

13. He is however contradicted by the site-plan as far as the above-noted detail are concerned. Qamar-ud-Din Siddiqi, the draftsman who prepared the site plan, appeared at the trial as P. W. 5 and stated that he had visited the site for measurements etc., on 16th of October 1967 i.e. the very next day after the night of incident and that he had marked the various places on the sits plan at the pointing out of the witnesses. He had also given the distance between the places at which each of the main character of the drama were sitting. Amir Kabul P. W. 6 has himself stated during the cross-examination that he was present when the draftsman had visited the place of occurrence in order to prepare the site-plan and that he had pointed out the relevant places to him. It is therefore evident that- the draftsman had given the location of the different witnesses on the site-plan on the pointing out, amongst others, of Amir Kabul himself. Yet, it will be noticed that whereas in the F. I. R. he had stated that Muhammad Yousaf etc. were sitting "quite near, in front of him" the site plan shows that he was sitting on their right hand side at a distance of fourteen feet towards the south-east. Similarly, in the F. I. R. he has stated that Muhammad Yasin appellant was seeing the tamagha, while sitting on his right hand side, but according to the site-plan Mohd. Yasin appellant was sitting at a place 21 feet to his left. Khadim Hussain P. W. 8 has also contradicted the version given by Amir Kabul P. W. 6 in the F. I. R. in respect of place where the latter was sitting. Whereas according to the F. I. R. Muhammad Yousaf deceased, Muhammad Ismail and Khadim Hussain P. Ws. were sitting just in front of Amir Kabul P. W.

6. This witness has stated as follows:--

"Amir Kabul P. W. was not sitting towards our back. He was on our right side. I had not stated before the learned C. M. that Amir Kabul P. W. was behind us. (So recorded in A to A of statement of the witness before the learned C. M. Confronted. Denied)."

14. The medical evidence also contradicts the eye-witnesses, including Amir Kabul, as to the place from where the appellant is said to have fired at the deceased. According to the witnesses the appellant was sitting behind Khadim Hussain C. W. 1 as well as the deceased, and the first shot fired by him hit Khadim Hussain C. W. in the right thigh. The place where Khadim Hussain C. W. was sitting is shown in the site-plan as point 'C'. Point 'A' where the deceased was sitting is in front of point 'C'. To this extent the statement of Amir Kabul is borne out by the site-plan. Muhammad Yasin appellant is said to be present at point marked as 'B' on the site-plan which is situated behind point 'C'. The distance between point 'B' and 'C' is shown as seven feet whereas the distance between points 'A' and 'B' is shown as fifteen feet. In other words while Khadim Hussain C. W. 1, was sitting behind the deceased at a distance of eight feet and Muhammad Yasin appellant was sitting at a distance of seven feet behind Khadim Hussain C. W.

1. Now, it is in evidence that the first shot fired by Muhammad Yasin appellant hit Khadim Hussain C. W. on the thigh: Since this shot was fired from behind it should naturally have hit the back side of the thigh but the medical evidence reveals that the wound of entry caused by this shot is situated on the front side of the right thigh while the wound of exit is on the back side of the thigh, somewhat lower in level from the wound of entry. This falsifies the F. I. R. as regards the position of Khadim Hussain C. W. vis-a-vis and also belies the eye-witnesses. However, on realizing this flaw, some of the witnesses tried to modify their statements at the trial by saying that Khadim Hussain had turned towards the appellant on hearing the lalkara. This is what Muhammad Ismail P. W. 7, stated at the trail with a view too explain how the Injury on the thigh of Khadim Hussain happened to be caused on the front side of the latter's thigh:---

"The accused was not towards the back of Khadim Hussain son of Melinda when the latter was fired at. The witness had turned towards the accused when the latter had shouted lalkara. I might have stated inadvertently before the learned C. M. that the accused was towards back of Khadim Hussain son of Mehanda when the latter was fired at. So recorded in A to A of statement of the witness before .the learned C. M. Confronted. Denied".

It is noteworthy that this witness had not said anything about Khadim Hussain C. W. turning on hearing the lalkara either before the C. M. or in his statements under sections 161 and 164, Cr. P. C.

This Is how Khadim Hussain son of Jalal Din P. W. 8, the maternal uncle of the deceased tried to explain this discrepancy at the trial:-----

"The accused was towards the back of Khadim Hussain when he had got up and shouted at the deceased. The accused was not exactly behind Khadim Hussain when the latter was hit. The accused was towards a side of Khadim Hussain. I had not made a different statement before the learned C. M."

He was confronted with his statement before the C. M., where he had made no mention of the appellant being on one side of Khadim Hussain C. W. The eye-witnesses also attempted to make their version consistent with the medical evidence m other respect. It will be noticed that the wound of entrance on the thigh of Khadim Hussain C. W. is situated at a higher place than the wound of exit. It can therefore be argued that it was fired by a person sitting at a higher level than Khadim Hussain, Amir Kabul P. W. 6 therefore introduced the following improvement:-

"The accused was standing' towards the back of the deceased when he had shouted lalkara. He was also towards the back of Khadim Hussain C. W. who got bullet wound. I did not see Yasin accused sitting towards back of Yousaf deceased and Khadim Hussain. I had not made any such statement before the learned C. M. So recorded m C to C of the statement of the witness before the learned C. M. Confronted. Denied."

15. There are a number of other discrepancies and contradic tion in the statements of three eye-witnesses, each of which may not, by itself, appear to be very important but since they relate to the details of the occurrence and the manner in which it took place, their accumulative effect is very damaging for the prosecution. As already observed, none of these witnesses is alleged to have had any enmity against the appellant but this in itself has no guarantee for the fact that they are telling the truth. It appears to us that these witnesses were not present at the spot at the time of occurrence and were subsequently procured as eye-witnesses, wing relatives and friends, they could be depended, upon to support the prosecution but even then the police took the precaution of getting their statements recorded under section 164, Cr. P. C.

Abdul Hafiz A. S.I. P. W. 9, the investigating Officer was asked as to why he had felt it necessary to get the statements of the eye-witnesses recorded under section 164, Cr. P. C., to which he replied that he took this step because the accused belonged to an influential party and it was likely that the witnesses could have gone back on their statements. We think that this explanation is absurd in view of the fact that Muhammad Ismail P. W. 7 is the real brother of the deceased while Khadim Hussain P. W. 8 is his real maternal uncle. Apart from this it is significant that Exh. P. G. the application made by Abdul Hafiz A. S. I. to the Magistrate praying for .the recording of the statements of the P. Ws. under section 164, Cr. P. C. admittedly, does not contain any such ground. Had these witnesses infect witnessed the occurrence and seen Muhammad Yasin shooting and killing their relative with their own eyes, there was no ground whatsoever for the police to suspect that there was a likelihood of their going back on or resiling from their statements under section 161, Cr. P. C. and therefore to get their statements under section 164, Cr. P. C. recorded by a Magistrate. It is also noteworthy that the Investigating Officer did not care to examine even a single person out of the 300 or 400 disinterested persons who were admittedly present at the spot. He has admitted that he did not examine any one of the persons who had witnessed the tamasha besides the persons mentioned in the F. I. R. He did not care even to examine Barkat Hussain whose marriage was being celebrated or Multan Khan, ire whose courtyard the incident took place. The investigation in this case appears to us to be somewhat suspicious. At one stage, at the trial, the Investigating Officer stated that the accused had absconded and was produce before him on 18-10-1967 by Amir Kabul P. W. 6 but earlier before the C. M , he had stated that the appellant had- voluntarily appeared before him. He denied having made the statement before the C.M. But he was confronted with his earlier statement. Another fact casting doubt on the investigation is that tire pistol P. I said to have been recovered from the appellant, belongs to Subedar Muhammad Rafiq the brother-in-law of the appellant. According to the Sub-Inspector the appellant had brought this pistol with him when he appeared before him on 18th October 1967. This is highly improbable and savours of planting, of the pistol on the appellant by the Investigating Officer.

We have already mentioned that Khadim Hussain C. W., refused to support the prosecution version and when called and examined as a Court witness, gave a wholly different story.

16. This being the state of the evidence, we feel it extremely unsafe to maintain the-conviction of Muhammad Yasin appellant on it. We, therefore, accept the appeal, set aside the order of the learned trial Court dated 27th of May 1968, and acquit the appellant. He should be set at liberty forthwith if he is not required in any other case.

Subedar Jahandad has filed a revision for the enhancement of the sentence awarded to the appellant. Since for other case given in our judgment, in the case (Cr. A. 547/68); we have acquitted the appellant, the question of the enhancement of hi sentence does not arise. The revision petition is therefore dismissed.

Appeal allowed.