BASHIR Versus THE STATE Mian Aftab Farrukh , Kh. A. Waheed, Rafiq Butt for the State.

MUHAMMAD MUNIR KHAN, J .‑‑ This Criminal Appeal No. 626/80 and the connected Murder Reference No. 165 of 1980 arise from the judgment of learned Sessions Judge, Gujrat, whereby he on 28‑5‑1980, while acquitting Ghulam Qadir and Abbas co‑accused convicted Bashir appellant aged 60/65 years under section 302, P.P.C. for causing the death of Abbas aged 30/35 years and sentenced him to death and a fine of Rs.10,000 in default thereof three years' R.I. The appellant was also directed to pay compensation of Rs.5,000 under section 544‑A, Cr.P.C. to the legal heirs of the deceased or in default thereof six months' R.I.

2. The occurrence took place on 14‑2‑1978 at Peshiwela in the street of village Mianwal of Police Station Kuthiala Sheikhan. The distance between the place of occurrence and the police station is six miles. The F.I.R. Exh.P.A. was lodged by Sardara P.W.5, the father of the deceased and was recorded by Raja Muhammad Khalil S.H.O. P.W.11 on the same day at 3‑30 p.m.

3. The background of murder as alleged by the prosecution was that four years before the occurrence, Muhammad Riaz brother's son of Bashir appellant was murdered. A case under section 302/34, P.P.C. was registered against Ghulam Qadir complainant, Abbas deceased, Allah Yar and Muhammad Yar brothers of Abbas deceased of present case. The police found Allah Yar, Muhammad Yar and Ghulam Qadir innocent and challaned Abbas deceased in that case, so a complaint was filed against Ghulam Qadir complainant and others which was pending at the time of occurrence. About three years before the occurrence, Abbas deceased was allowed bail. To take the revenge of the murder of Abbas, the appellant and his co‑accused Ghulam Qadir and Abbas killed the deceased.

4. As for the main occurrence, the prosecution case is that Sardara P.W.5 alongwith Abbas deceased and other sons, were living in Dera Virkan in the area of Mianwal. On the eventful day at about Peshiwela, feeling pain in the stomach, he alongwith his son Abbas deceased left his residence for Civil Hospital, Mianwal. After covering distance of two miles, when they reached just in front of hospital, Bashir appellant armed with a carbin of .12 bore, Abbas armed with Danda and Ghulam Qadir empty‑handed came there from behind. Ghulam Qadir and Abbas acquitted accused, caught hold of Ghulam Abbas. Bashir appellant reaching near, fired at Ghulam Abbas hitting on back side of his chest. The alarm raised by Sardara complainant attracted Shera P.W.6 and Inayat P.W.7 to the spot. The appellant and co‑accused then made good their escape. Ghulam Abbas died on the spot.

5. On 15‑2‑1978 Dr. Rashid Ahmed P.W.1 conducted post‑mortem examination on the dead body of Ghulam Abbas and found following injuries on his person:‑

(1) A firearm wound of inlet with blackened margins 1 " x 1 " from outside on back outer side and lower part of the chest left side at the junction part of abdomen and lower part of chest. It was directed forward and inward into the abdominal cavity. The 11 th rib in the wound was fractured.

(2) Fire‑arm wound of inlet " x 1/3" adjoining in front of injury No.1. It had the same direction and went deep into the abdominal cavity. It had also blackened margins.

(3) Abrasion 2 " x " back of chest left side scapular area."

In his opinion, the cause of death was shock and haemorrhage as a result of injuries 1 and 2 caused by fire‑arm. Injury No.3 could be caused by a fall on the ground. The time between the injuries and the death was 5 to 10 minutes and between the death and post‑mortem 20 hours.

6. On 14‑2‑1978, Raja Muhammad Khalil S.H.O. inspected the spot. He secured crime empty P.7/1 from there. Bashir Ahmed appellant was arrested on 17‑2‑1978 by the S.H.O. On 20‑2‑1978 the appellant got recovered carbine P.7 from the room of his Dera on 19‑2‑1978 crime empty was sent to Forensic Science Laboratory. On 23‑2‑1978, the crime empty was returned with some objection. Thereafter it was never sent to the Forensic Science Laboratory. It is remarkable that carbine was also not sent to the Forensic Science Laboratory.

7. To prove its case, the prosecution examined 12 witnesses, out of whom Sardara P.W.5, Shera P.W.6 and Inayat P.W.7 have given the ocular account of the occurrence. They claimed to have seen the two acquitted accused catching hold of deceased and the appellant causing this death by firing shot from carbine. Shana P.W.10 was produced as Wajtakar witness. Fateh Muhammad P.W.9, Shana P.W.10, and Raja Muhammad Khalil P.W.11 supported the recoveries of carbine P.7 from the residential room of the Dera by the appellant and recovery of crime empty P.7/1 from the place of occurrence. 'The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised plea of false implication on account of enmity. In defence Muhammad Siddiq A.S.I. was produced as D.W.1.

9. The learned counsel for the appellant contends that the eye‑witnesses were not present on the spot; that they are the chance witnesses; that they are related and inimical witnesses; that their evidence has not been acted upon to the extent of two acquitted accused and there being no independent corroboration of ocular evidence; the appellant was also entitled to the benefit of doubt. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant supported the judgment of the trial Court. The learned counsel for the complainant argued that the ocular evidence finds corroboration from motive and recovery of the carbine from the appellant.

10. We have considered the arguments advanced by the learned counsel for the parties with care. We find that the motive, as stated by the prosecution is a double‑edged weapon. It could also be a reason for the false implication of the appellant and his co‑accused, on account of enmity or suspicion that they might have done away with the deceased. To our mind, the fate of the case hinges upon the question of the credibility of the eye‑witnesses and corroboration thereof. We propose to appreciate the ocular evidence in the light of the guiding principles laid down by the Supreme Court in case Niaz v. State reported as PLD 1960 S C 387 wherein it has been stated:‑

"Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution, has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborate their testimony."

Coming to the first question, we find that there are reasons to doubt the Sardara P.W.5, Shera P.W.6 and Inayat P.7 in fact saw the occurrence. The occurrence took place in village Mianwal. The witnesses were residing at a distance of two to four miles from that village. Sardara P.W. was also accused for the murder of Abbas deceased. Had he been there, most probably he would also have been attacked as. Strangely enough, although the appellant and Ghulam Qadir acquitted co‑accused were armed with carbine and a Danda yet they did not open attack on the complainant and he remained unhurt. The reasons given by him for his presence in village Mianwal that he came for medical treatment in the hospital is also not plausible inasmuch as in his statement he has stated that the hospital was used to be closed at 12‑00 noon. The eye‑witnesses namely Shera and Inayat claim to have been attracted to the spot on the alarm raised by Sardara. Since we feel that Sardara was not present on the spot, therefore, the question of attraction of P.W.6 and P.W.7 to the spot and witnessing the occurrence does not arise. Shera P.W.6 and Inayat P.W.7 are chance witnesses. They are also related to the deceased. Inayat is the first cousin of the deceased whereas niece of Shera P.W.6 is daughter‑in‑law of the uncle of the deceased. The evidence of the chance witnesses, gives not only smell of enmity with the appellant, and also inclination towards the prosecution. The trend of their statements shows that they have given evidence with a motive other than that of telling the truth. They either denied or pleaded want of‑knowledge of the facts which they were presumed to have known. Shera P.W. made inconsistent statements. In his examination‑in‑chief, he stated that he had seen the acquitted accused catching hold of the deceased whereas in his cross‑examination he stated:‑

"I had seen Abbas when he was lying on the ground had not seen him in standing position."

Furthermore, the F.I.R. shows that Sardara complainant had raised alarm after the deceased had been fired at and as such there was no occasion for the two witnesses to witness the two co‑accused catching hold of the deceased and the appellant firing at him. Shera P.W.6 could not tell the distance even approximately between the deceased and Bashir Ahmed appellant at the time of firing of carbine. The trial Court while discussing the case of Ghulam Qadir and Abbas co‑accused has stated that they were the victim of exaggeration by the eye‑witnesses. The learned trial Court in para. No.18 of its judgment has stated: ‑

"As I have already observed that Ghulam Qadir and Abbas accused were not expected to be present at the place of occurrence."

The trial Court has thus practically disbelieved the testimony of the eye‑witnesses to the extent of the acquitted co‑accused. The participation E of the appellant also appears to be improbable inasmuch as, he being a lame man, the co‑accused who were related to him would not have associated him in the occurrence. Although the occurrence took place in a street in front of the hospital and there was residential Abadi around the spot, yet no one has been produced to state about the occurrence. The statements of the witnesses are not in consonance with the probabilities, do not fit in with the other evidence and fail to inspire confidence. For all these reasons, we hold the three eye‑witnesses are wholly unreliable. Coming to the question of corroboration we feel that even strongest circumstance could not have rehabilitated the ocular testimony. Needless to mention that the recover of carbine, relied upon by the learned trial Court as corroboration of the ocular account, could not have been used as such because the carbine having not been sent to the Forensic Science Laboratory, the recovery was of nor consequence. Since motive cuts both ways, its benefit in the peculiar circumstances of the case cannot be given to the prosecution.

11. The upshot of the discussion is that there is no satisfactory basis, whatsoever for upholding the conviction and giving him the benefit of doubt we acquit the appellant of the charge. He shall be released forthwith if not required in any other case.

The death sentence is not confirmed.

M.A.K

Appeal accepted