KHAN Versus STATE
Salehon, his sons Muhammad Yar. Allah Yar and Mubhara, his nephew Khan son of Gaman and his servant Shafi were tried under sections 148 and 302/149, P.P.C. for the murder of one Manak by Mr. Muhammad Azam Khan, Additional Sessions Judge, Sargodha, Salehon was acquitted while the other five were convicted under sections 148 and 302/149, P. P. C. They were awarded three years R. I. each on the first count and transportation for life each on the second.
2. The occurrence took place on 22nd of December, 1967 at about sunrise in village Rahimpur, Police Station Mid Ranjha, in the District of Sargodha. Ahmad Bakhsh (P. W. 6) a brother of the deceased lodged F. I. R. Exh. P. A. in Police Station Mid Ranjha, at 9 a.m. on the same day. It was recorded by Muhammad Siddiq (P. W. 10) S.H.O., Mid Ranjha. The distance between the Police Station and the place of occurrence is seven milles as given in the F.I. R. and fives miles according to Ahmad Bakhsh (P. W. 6).
3. The prosecution story is that Ahmad Bakhsh (P. W. 6) and Majak deceased, his brother, were proceeding from the village towards their dera. When they had passed the dera of Murad, the six accused emerged from behind a wall which is in their own land. All of them were armed with guns. On seeing Manak they raised a lalkara that Manak should be done to death. Manak on seeing the six accused armed with guns turned and proceeded back towards the village. Muhammad Yar appellant thereupon fired from his gun and the shot hit at the back of the deceased. Thereafter all the five accused fired at him and the shots hit him on the back. The occurrence was seen apart from Bakhah (P. W. 6) by Muhammad son of Manak (P. W. 7), Dosa son of Nabi (P. W. 8), and Allah Ditta (P. W. 9). Muhammad and Dosa P. Ws. are first cousins inter se. The sister of their fathers, namely, Mst. Jallan was married to Fateh who was uncle of the deceased. Allah Ditta (P. W. 9) is mocha by caste. He admitted before the Committing Magistrate that he was a Moeen of Sher father of Manak deceased, but then said that he was a Moeen of all persons inhabiting in various pattis of the village.
4. The accused were arrested on different dates. Khan son of Gaman produced a rifle and Muhammad Yar produced a gun. Since no empty was found from the spot, these weapons were not sent to the Forensic Laboratory. They are not in any way connected with the commission of the offence. These recoveries are, therefore, inconsequential.
5. The medical evidence shows that the deceased had five firearm injuries on his backside. One of these injuries was on the outer aspect of the right cheat and another on the left side of the chest. Both had charred edges. Death had occurred because of the rupture of the left lung and the heart. The doctor found one pellet in the heart. Death was instantaneous and the time between death and the post mortem examination was estimated by the doctor to be between twenty‑four to thirty‑six hours.
6. There is grim background of enmity between the parties. Fateh, an uncle of Mansk deceased, was murdered about six years before the present occurrence. All the appellants, except Shafi, were prosecuted in that case. They were, however, acquitted. In the, month of Ramzan, preceding the present occurrence, one Dosa was murdered and it is the case of the prosecution that the present accused had got a false cage registered against the complainant party for the murder of boss, but on investiga tion it was found that Salehon accused and his son Moonda had committed the crime. Moonda was murdered before this case came up for trial and it appears from the record that Salehon was standing the trial but was on bail. No judgment had been announced by them. It is also in evidence that for a number of years before the commission of the offence the parties were being bound down for keeping peace every year.
7. Salehon accused was acquitted because he had raised a plea of alibi to the effect that he was in Lahore on the date and time of the occurrence pursuing a writ petition which was filed on his behalf and that of his son in regard to the murder case of Dosa. His defence had been recorded by the Investigating Officer but he had left the matter to the Court. At the trial Salehon produced three witnesses, namely, Mr. Muhammad Bakhsh. Advocate, Mir Akhtar Hussain P. S. I. Sargodha, and Bashir Ahmad proprietor of Cafe‑Anjum Hotel, Lahore. The learned trial Judge on the basis of this evidence acquitted Salehon.
8. The case of the defence at the trial was that a bullock belonging to the accused‑party had been stolen and that it was Ahmad son of Raju a Muslim Sheikh and a servant of Salehon accused, who had actually fired at Manak deceased w ho was taking away the bullock belonging to the accused party. It is established on record that the land where Manak was done to death belonged to the accused party. The fact of the theft of the bullock was not disclosed by the first informant but in a supplementary statement he testified to that fact and also stated that the bullock had been recovered a bit earlier than the murder of Manak. It is also established by the admission of Ahmad Bakhah P. W. that be and the deceased had not taken the normal and more convenient route to their dera.
9. The learned counsel fur the appellants submits that the parties being on extremely inimical terms no conviction could have been based on the uncorroborated testimony of hostile witnesses; that the defence plea was not properly gone by the learned Additional Sessions Judge and that in any case all the witnesses having falsely involved Salehon, their word could not be implicitly relied upon. It was also pointed out that there were only five firearm injuries on the person of the deceased and if six gun‑men had hit the deceased, which is admittedly the case of the prosecution, there would have been a very large number of injuries on the person of the deceased. It is, therefore, urged that this is a case of false inculpation and, unless it‑is proved with judicial certainty that each one of the appellants had taken part in the commission of the offence, the conviction of the appellants cannot be legally sustained.
10. The incidents which provide the background of enmity have been enumerated above and there is no denying that Ahmad Bakhsh, Muhammad and Dosa are hostile witnesses Apart from the fact that Manak deceased was related to these witnesses, both Ahmed Bakhah and Muhammad non of Manak were prosecution witnesses in the murder case of Fateh. Allah Ditta is seemingly an unattached witness but he had admitted before the Com mitting Magistrate that lie was a Moeen of her father of Manak deceased. He is a chance witness. He stated at tire trial that, he happened to see the occurrence as he was proceeding to the dera of Shera son of Bakhsha wherefrom like was to bring fuel wood after loading same on a she-donkey which he was to borrow from Shera. Before the Police he had stated that he was going to the house of Shera only for the purpose of borrowing a she‑donkey. He could not tell to which paid this Shera belongs. There is, however, a more formidable objection to his evidence. He along with the other eye-witnesses had implicated Salehon whose plea of alibi prevailed with the trial Court. The question for consideration is whether in view of the false inculpation of Salehon by this witness we can place implicit reliance on the other part of the story narrated by him at the trial. The criminal courts have persistently laid down the rule that where a witness tries to falsely inculpate some of the accused, corroboration is necessary to sustain the conviction of the others on the basis of his statement.
11. There is no corroboration forthcoming in this case. There had been decidedly false inculpation. The number of injuries on the person of the deceased goes to show that the deceased was fired from differents distance or at the most two guns were used. True that Muhammad Yar has consistently been named as a person who opened that attack, but in case of hostile witnesses consistency is no substitute for truth. The hostile witnesses may choose one man as their target and name him consistently. The complicity of a person who is being tried for capital punishment is to be determined on the basis of unimpeachable evidence.
12. The deceased was done to death in the land belonging to the deceased. He and his brother had taken an unusual route to proceed to their dera. The fact of the theft of the bullock belonging to the deceased and its recovery a little before the occurrence was not reveals of the prosecution witnesses in the first instance. These facts do lend probability to the defence plea that deceased was shot at from behind when he was taking away the bullock belonging to the deceased party.
13. Allah Ditta is a chance witness. So is Doss. who claimed to be present in the haveli of Muhammad son of Manak P. W. because he had come to borrow a pair of bullocks from him. He admitted that he had two pairs of bullocks but stated that they were tired. It is very doubtful if Ahmad Bakhsh, Muhammad and Dosa were present at the time of occurrence. The accused were six in number‑‑‑all armed guns. They would not have spared these three persons who equally shared the hostility of the accused with the deceased. Some of the appellants may have taken part in the commission of the offence, but from the record there is no material by which I may come to the conclusion of this participation.
14. The result is that I allow this appeal and set aside the conviction and sentences passed on the appellants on both the courts. They shall be set at liberty forthwith unless they are lawfully required to be detained in some other case.
Appeal allowed.