SHER SAMAND KHAN Versus STATE

MUHAMMAD RAFIQ TARAR, J, Sher Samand appellant and acquitted accused Nawaz Khan, Khan Zada Khan, Muhammad Nawaz Khan, Sher Khan and Muzaffar Khan were tried by the learned Sessions Judge. Mianwali, for having on 10th January 1973, at v a.m. in the area of village Pai Khel, Police Station Mochh, committed the murder of Sher Samand deceased in furtherance of their common intention. By judgment, Dated 21st May 1974, the appellant was convicted under section 302 of the Pakistan Penal Code and sentenced to death. He was also pay Rs. 1,000 as compensation to the heirs of the deceased. b ac other accused persons were acquitted of the charge. The learned , ;6ge held that they were falsely implicated for ulterior motive. Sher Samand appellant has appealed and the case is also before us on reference for confirmation of the death sentence awarded to him. The appeal and the reference are being taken up together and disposed of by this judgment.

2. The brief facts of the prosecution case are that on 10th January 1973, at 9 a.m. Sher Samand deceased went to the house of his maternal uncle Amir Abdullah Khan, complainant. He remained with die complainant for a short while and then both of them left the house. When they reached near the house of Muzaffar Khan son of Nawaz Khan the appellant and the acquitted accused who were armed with guns confirmed them. At that time Alam Khan P. W. and Ata Ullah Khan not produced were also in the street. On seeing the deceased and the complaint Mawaz Khan challenged the deceased while Sher Samand appellant fired at him hitting him on the forehead. On receiving the shot, the deceased staggered and the acquitted accused also fired their guns on him. The appellant took shelter behind a wall and raised alarm. Alam Khan P. W. and Ata Ullah Khan entreated the appellant and the acquitted accused whereupon they ran away to their houses. After the occurrence, the complainant and others went near the deceased and found him lying unconscious.

3. The motive for the occurrence was that the deceased had taken Rs. 200 from acquitted accused Mawaz Khan on loan about a month for to the occurrence. Three or four days before the occurrence, Mawaz !Khan demanded the amount but the deceased expressed his inability of the amount at that time, whereupon there was an exchange of abuses cattlemen the two, but the complainant separated them. It is alleged that 1Tawaz Khan had thrown a challenge on the deceased that he would teach him a lesson for abuses and non‑payment of the loan.

4. After the occurrence, the deceased who was in injured condition, was removed to D. H. Q. Hospital, Mianwali an the complainant proceeded to Police Station, Mochh where he reported the occurrence to Mawaz Khan, Muharrir Head Constable, at 10 a.m., incorporating the above facts, vide F. I. R. Exh. P. C.

5. After recording the F.1. R. Fateh Khan, M. H. C. sent its copy to the Station House Officer who was at Mianwali for investigation of another case. On the same day, the deceased expired in the hospital at 5:30 p.m and the offence was alerted from section on 302/149, to section 302 149 P. P. C. Ghulam Abbas, Head Y Constable (P. `W. 3), reached D. H. Q. Hospital, Mianwali, and prepared the inquest report (Exh. P. G.) of the dead body of the deceased and sent it to the mortuary for return examination. Raja Ali Gohar S. H. O., reached the spot on the same day. He secured pieces of card‑board (Exh. P. 18) from Pellets (Exh. P. 19/1‑3) from near the wall of the house of one Ali Muhammad and another pellet (Exh. P. 20) from near the baithak of Nawab vide memo. Exh. P. D. He searched for the accused but they were not available. On 4th February 1973, the appellant and the acquitted accused person appeared before the S. H. O. at the bathak of Haji Muhammad Khan, Sher Samand appellant produced gun (Exh. P. 3) and two cartridges (Exh. P.4/1-2 before the S. H. O. who took them into his possessions, Mawaz Khan produced rifle (Exh. P. 1) and two bullets (Exh. P. 2/1‑2), Muzaffar Khan produced rifle (Exh. P. 5) and two bullets (Exh. P. 6/1‑2), Sher Khan produced, gun Exh. P. 9) and partridge (Exh. P. 10), Muhammad Nawaz produced gun ph. p, 7) and cartridge (Exh. P. 8) and Khan Zada produced gun (Exh. P. 7) and cartridge (Exh. P. 12) before the Sub‑Inspector who took these arms into his possession. The appellant and the acquitted accused had no licence for these weapons. The memos of the weapons are said to be on the file of the cases under the Arms Ordinance. The Sub‑Inspector arrested the appellant and the acquitted accused. After the investigation, a cage under sections 148 and 302/149 of the Pakistan Penal Code was sent up against them.

6, On 10th January 1973, at 12‑20 noon Dr. Ashiq Ali Chaudhry, Medical Officer, D. H. Q. Hospital, Mianwali, examined Sher Samand deceased, when alive, and found a fire‑arm wound of entry 1/4x1/4 on the left side of forehead, half inch away from the mid‑line and J' below the hairy margin. The margins of the wound were inverted and it was bleeding profusely. There was no blackening or tattooing around the wound. On 11th January 1973, at 11‑30 a.m., the same doctor conducted the autopsy on the dead body of the deceased and found the injury referred to above on it. On opening the skull, the left frontal bone was found perforated at the site of injury No. 1. The meanings and brain matter were perforated. A pellet was found from the posterior part of the brain matter, which was sealed and handed over to the police. In the opinion of the doctor, death was due to shock and haemorrhage due to injury to brain. It was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was about six to eight hours and between death and post‑mortem about eighteen hours.

7. The prosecution relied on the motive, the ocular testimony of Amir Abdullah Khan complainant and Alam Khan (P. W. 8), the recoveries of weapons from the appellant and the acquitted accused and their abscission after the occurrence.

8. The appellant and the acquitted accused pleaded not guilty to the charge. They admitted their relationship inter se but denied all other allegations. They denied having absconded after the occurrence and stated that they joined the investigation on the very first day but were not arrested as the police was investigating into the cross‑firing‑affair which bad taken place on the day of the occurrence. The appellant stated that he was not present at the time of occurrence and had been falsely implicated due to enmity with the prosecution witnesses. Mawaz Khan (acquitted accused) produced a copy of the judgment passed in a pre‑emption suit in his defence. No other evidence was led in defence.

9. The learned trial Judge disbelieved the recoveries and held that the same were fake and fictitious fie also disbelieved the motive and held that it was false. He further held that the abscission of the appellant and the acquitted accused was not proved as there was no evidence on the record that proceedings under sections, 87 and 88 of the Code of Criminal Procedure were taken against him. He disbelieved the ocular testimony of the complainant and Alam Khan P. W. against the acquitted accused and observed that both of them had falsely involved them for ulterior motive. He, however, accepted their evidence against the appellant and on its basis found him guilty of murder.

10. The learned counsel for the appellant contended that the presence of the complainant and Alam Khan P. W. at the spot was doubtful. He further contended that both of them were inimical to the appellant and even the learned trial Judge held that they had deliberately implicated innocent persons, therefore, their uncorroborated evidence was not for recording the conviction of the appellant. He further argued that occurrence had taken place in the main street of were inhabited houses all around, but no witness was produced from vicinity of the place of occurrence to support the prosecution version.

11. We have gone through the entire evidence with the help she learned counsel for the parties and have given our careful consideration to the arguments addressed by them. In the F. I. R. the complainant vied that on the day of occurrence at 9 a.m. the deceased visited his and after sitting there for a short while when he started back he also accompanied him. In the F. I. R. he did not mention the reason his accompanying the deceased. According to this witness, during the days of occurrence he was employed as a Munshi at a brick‑kiln. At the trial, in cross‑examination he stated that as there fore, he accompanied the deceased and they came to the occurrence as it was the shortest route to the house of the to the brick‑kiln. He further stated that previously he also used to adopt the same route for going to the brick‑kiln. Nothing was brought lie record to show that the route adopted by the deceased and the tit was not the shortest route to the house of the deceased or the brick kiln It is in the statement of the complainant that his house was at a sixty of seventy yards from the spot, therefore, we are of the view of the presence of this witness at the spot was not unnatural. However, his fact does not necessarily mean that what he had stated was true. He is maternal‑uncle of the deceased and there is sufficient material on the indicating that he had deliberately tried to implicate innocent persons. In cross‑examination, he admitted that he was challaned for the murder of Jahan Khan. He stated that he did not know if Jahangir Khan was a cousin of Muhammad Nawaz (acquitted accused). He denied the suggestion that Jahangir Khan had appeared as a P. W. In the murder case against him. He denied having stated before the committing Magistrate that he could not recollect if Jahangir son of Madad Khan, a cousin of Muhammad Nawaz accused, appeared as an eye‑witness against him in the murder case of Jahan Khan. He was confronted with his statement before the committing Magistrate where it was so recorded. Dealing with his evidence the learned trial Judge observed as under section "However, it appears that this witness has enmity with Muhammad Nawaz accused, whose cousin Jahangir Khan had appeared as a prosecution witness in a murder case against the witness. So the possibility of false involvement of Muhammad Nawaz accused in the case cannot be excluded. It appears that Amir Abdullah and Alam Khan P. Ws. did see Sher Samand accused firing at the deceased but they falsely implicated Mawaz Khan, his brother Khan Zada Khan. Muzafar Khan, Muhammad Nawaz and Sher Khan accused in order to take revenge from them as the said accused persons had given them the cause of annoyance prior to the occurrence. This view finds support from the fact that the deceased received only one injury and only one pellet was extracted from the wound by the doctor while the Investigating Officer, Raja Ali Gohar P. W. observed three pellet marks on the western wall of the house of Ali Muhammad and one pallet mark on the southern wall of the baithak of Nawab Khan. This means that only one shot was fired from a .12 bore gun which hit the deceased and also the two houses, which are quite close to the place where the deed was standing. Both the witnesses stated that the other five accused also fired at the deceased, but no other pellet mark was detected by the S. H. O. near about the spot. We see no reason to disagree with the above finding of the learned trial judge.

12. The presence of Alam Khan (P. W. 8) at the spot appears to be doubtful. Her house was at a distance of three hundred yards from the place o f occurrence. In examination‑in‑chief he stated that he saw the occurrence while he was going to the shop of Gul Khan to get himself injected by him. He further stated that he was suffering from T. B. since two years before the occurrence and had never remained under the treatment of, any doctor. He admitted that he had not obtained any prescription from any doctor. He further stated Only Gul Khan knew the injection which he used to give me." He denied the suggestion that Gul Khan was a grocer, and not a dealer in medicines. He admitted that there was a hospital in the village at a distance of four or five hundred yards from his house. After a careful scrutiny of the statement of this witness, we feel that his presence at the spot has not been satisfactorily explained and he is not a reliable witness. There is nothing on the record to show that Gul Khan was a dealer in medicines or a doctor or a dispenser. This witness is the son of Nawaz Khan. Mawaz Khan (acquitted accused) produced a copy of the judgment (Exh. D. A.) passed in a pre‑emption suit which shows that Alam Khan son of Nawab Khan sold his right of equity of redemption in the land measuring 142 kanals and 12 marlas in favour of Mawaz Khan (acquitted accused) son of Said Khan, and Nawab Khan son of Said Ullah Khan filed a suit to pre‑empt this sale. At the trial, Alam Khan P. W. stated that he did not sell any land to Mawaz Khan accused and it was another Alam Khan son of Nawab Khan, caste Pathan, of Pai Khel who had sold the land to Mawaz Khan accused. He also denied that the pro‑emptor Nawab Khan son of Saidullah Khan was the son of his maternal uncle. The learned trial Judge observed that the witnesses had told a lie on this point because he failed to give the full details of other Alam Khan son of Nawab Khan of Pai Khel who, according to him (the witness), had sold the land to Mawaz Khan (acquitted accused). He was of the view that as the witness had suppressed this fact, therefore, it could safely be presumed that he had grudge against Mawaa than accused to whom he had sold his land and had gambled away the money. It was suggested to this witness that Fateh Khan and Mehar Khan, cousins of Muzaffar Khan accused, had trespassed into the house of his father's sister Mst. Alum Khatun in order to outrage bar modesty and they were prosecuted under sections 345 and 354, P. P. C. and were convicted and sentenced to six months' R, L each, but he denied the suggestion as incorrect and stated that Mst. Alum Khatun was not his father's sister and he did not know any sister of his father. The answers given by this witness in cross‑examination would show that he is not a straightforward witness. It is not possible to believe that he did not know the name of the sister of his father. The learned trial Judge observed that the witness tried to suppress his relation‑ship with Mst. Alum Khatun in order to conceal his animus against Muzaffar Khan accused and "the possibility that he has toed the line of Amir Abdullah complainant in the inflation of the number of the accused cannot be ruled out".

13. The deceased had only one injury and six persons were implicated. After carefully examining the entire evidence on the record, we feel that the two eye‑witnesses have falsely implicated a large number of innocent persons, therefore, as a rule of prudence, the evidence of these eye‑witnesses cannot be accepted unless corroborated by independent evidence. No such corroborative evidence is forthcoming in this case.

14. It is also curious to note that the occurrence took place in the broad daylight in the main street of the town which is surrounded by inhabited houses but not a single witness from the vicinity of the place of occurrence was produced to support the prosecution version. Both the eye‑witnesses stated that no witness from the neighbouring houses had come to the spot to witness the occurrence. This statement is palpably false because the occurrence having taken place at day time in the thickly populated part of the town, a large number of persons were expected to witness it.

15. Except the solitary statement of the complainant who has been disbelieved in regard to the main occurrence, there is no evidence to support the motive and the same remains unsubstantiated.

16. There is also nothing on the file to show that the weapons recover ed from the acquitted accused and the appellant were used in the occurrence, therefore, these recoveries are of no avail to the prosecution.

17. There is no evidence on the file to show that the appellant had absconded after the occurrence. The Investigating Officer admitted in cross examination that no warrants of arrest were obtained against the accused persons. There is also no evidence that any proceedings under sections 87 and 88 of the Criminal Procedure Code were taken against the appellant and the acquitted accused.

18. For all the foregoing reasons, we are of the view that it will b unsafe to base the conviction of the appellant on the tainted testimony o Amir Abdullah Khan complainant and Alam Khan P. W. We, therefore, accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge against him. He shall be set at liberty forthwith, if not required to be detained in any other case.

Appeal allowed.