MUHAMMAD ISHAQ Versus STATE

Muhammad Ishaq son of Pathi Mullah Jan aged about 21/22 years resident of Village Hathian, Police Station Lund Khwar, District Mardan was tried for the charges under section 302/307, P.P.C. He was convicted and sentenced under section 302, P.P.C. on two counts for the murder of Ghulam Qadir and Muhammad Yunis Ali and sentenced to imprisonment for life and a fine of Rs.15,000 on each count or in default to suffer further R.I. for six months on each count. The fine on recovery was ordered to be paid to the legal heirs of both the deceased in equal share as compensation under section 544-A, Cr.P.C. For attempting at the lives of Mst. Nusrat, Shahid Ali and Amjad Ali, the accused Muhammad Ishaq was convicted under section 307, P.P.C. on three counts and sentenced to undergo imprisonment for five years' R.I. and a fine of Rs.2,000 on each count. In default of payment of fine on each count he was to suffer further R.I. for six months. The sentences were to run concurrently. The accused was given the benefit of section 382-B, Cr.P.C. The convict/appellant has challenged his conviction and sentences awarded to him by the learned Sessions Judge, Mardan, vide judgment dated 6-8-1992 by filing this appeal in this Court.

2. The prosecution story as disclosed at the trial is as follows:--

3. On 19-2-1990 at 21-15 hours, Shahid Ali (P.W.6) son of Ghulam Qadir deceased and brother of Muhammad Yunis Ali deceased alongwith his second another Amjad Ali, his sister Mst. Nusrat (P.W.7) and his mother Mst. Wazirzadgai were present in their house when at about 9-10 p.m. he heard the report of fireshots near his house. After few minutes of the report of fireshots some body knocked at the door of the house whereupon Ghulam Qadir deceased went to the door, opened it and saw the accused Muhammad Ishaq armed with Klashnikov who fired with which Ghulam Oadir deceased and Muhammad Yunis Ali deceased were hit and died on the spot while Mst. Nusrat was injured. The accused decamped after the occurrence. The occurrence was witnessed by P.Ws. Amjad, Mst. Nusrat and Wazirzadgai besides Shahid Ali P.W. The accused was identified in the light of bulbs. The motive for the occurrence was that a relative of the complainant, namely, Aziz Ahmad was charged for the murder of the brother of the accused and injuring their father. The report of occurrence Exh.P.A./1 was made by Shahid Ali (P.W.6) on the same night at 21-50 hours to Murtaza Khan, A.S.I. (P.W.8) who was on Gusht in the village. After recording the report,Exh.PA./1 it was read over to Shahid Ali who after admitting it to be correct signed it. On.the basis of Murasila Exh.PA./1, the case was registered vide F.I.R. Exh.P.A. by Azam Khan, A.S.I. (P.W.3). Murtaza Khan, A.S.I. (P.W.8) then went to the spot where he prepared the injury-sheet of Mst. Nusrat Exh.PJ. and sent her under the escort of a constable for medical treatment. He also prepared the injury sheet Exh.P.K. and inquest report Exh.P.K./1 of Ghulam 0adir deceased and the injury sheet Exh.P.M. and inquest report Exh.P.M./1 of Muhammad Yunis Ali deceased and sent both the deceased under the escort of Haji Rahman F.C. (P.W.9) for post-mortem examination. He then handed over .the investigation to Bashir Khan, S.H.O. (P.W.4) who had also rushed to the spot on being informed of the occurrence during his mobile Gusht and found Murtaza Khan A.S.I. (P.W.8) busy in the investigation. When he took the investigation in his hand; he inspected the spot but since it was dark he did not prepare the site plan. The site plan Exh.P.B. was prepared on next day on the pointation of P.Ws. He, however, recovered eight empties of 7.62 bore Exh.P.l on the same night from the spot in the presence, of marginal witnesses of the recovery memo. Exh.P.E. He had taken into possession two electric bulbs Exh.P.2 alongwith holders from the spot, vide recovery memo. Exh.P.C. He had also taken into possession blood-stained earth from two different points, vide recovery memo. Exh.P.D., packed and sealed the same into parcel and sent it to the expert for opinion. Since the accused Muhammad Ishaq was already found to be in the custody of Murtaza Khan, A.S.I. (P.W.8) as a complainant in the connected case registered vide F.I.R. No.46, Bashir Khan the Investigation Officer (P.W.4) arrested him as. an accused in the present case: On 21r2-1990, he took into possession two sealed bottles Exh.P.3 and Exh.P.4 sent to him by the Medical Officer after post-mortem examination of the two deceased vide recovery memo. Exh.P.H. The clothes of the two deceased were sent to the Medical Examiner whose report is Exh.P.Q. The shirt Exh.P.5, Shalwar Exh.P.6, blood-stained bearing corresponding cut marks belonging to deceased Muhammad Yunis Ali sent by the Medical Officer after post-mortem examination were taken into possession, vide recovery memo. Exh.P.F. Similarly the shirt Exh.P.7, Shalwar Exh.P.8, Banyan Exh.P.9, waistcoat Exh.P.10, sweater Exh.P.11, woollen cap Exh.P.12 blood-stained corresponding cut marks belonging to deceased Ghulam Qadir sent by the doctor after post-mortem examination were taken into possession, vide memo. Exh.P.G. The Investigating Officer then recorded the statements of P.Ws. and on completion of the investigation submitted challan to the Court against the accused for trial.

4. Dr. Zahirullah, Medical Officer, Civil Hospital Lund Khwar (P.W.1) conducted autopsy on the dead body of Muhammad Yunis Ali deceased on 20-2-1990 at 8-30 a.m. and found the following: -

External Examination:

(1) ??????? A fire-arm inlet wound at right temporal mendibular joint size about 1" x 1".

(2) ??????? A fire-arm inlet wound at outer angle of right eyebrow size about 1" x

???????????

(3) ??????? A fire-arm inlet wound on right side root of the neck size about 1/4" x

(4) ??????? There is corresponding fire-arm exit wound on left side of neck at medial aspect of left colour bone size about 1/4" x 1./4".

(5) ??????? Grazing lire-arm wound on right face. A bullet recovered from inside the skull.

Internal examination

Abdomen-oesophagus injured. Skull, vertebrae and brain were injured.

In the opinion of the doctor death occurred due to fire-arm injuries to brain causing instantaneous death.

Time between injury and death was opined instantaneous and between death and post-mortem within 12 hours.

He proved his report Exh.P.N. pictorial Exh.P.N./1, injury sheet Exh.P.M. and inquest report Exh.P.M./1.

Dr. Muhammad Shamim Agency Surgeon Landikotal who had earlier on 19-2-1990 at 10-45 p.m. examined Mst. Nusrat and found grazing wound of fire-arm on her right back of chest at level of 7th rib, size 1" x 1/2" and had opined the injury as simple conducted autopsy on the dead body of Ghulam Qadir deceased on. 20-2-1990 at 2-45 a.m. and found the following:--

External examination:

(1) ??????? Inlet fire-arm wound one on left cheek 1" x 1".

(2) ??????? There is corresponding outlet fire-arm wound one on right cheek, size ? 1-1/2 x l/2".

(3) ??????? One inlet fire-arm wound on back of head 1" x 1"

(4) ??????? There is corresponding outlet fire-arm wound one on forehead 1-2/3" x 1-2/3".

(5) ??????? One inlet fire-arm wound on front of right side chest 1/2" x 1/2". One bullet piece removed from inside right side chest.

(6). ????? One inlet fire-arm wound on back of right side chest at level of 6th rib size 1" x 1".

(7) ??????? There is corresponding outlet wound fire-arm wound on right back of chest at level of 4th rib size 2" x 2". .

(8) ??????? One inlet fire-arm wound below right nipple 1" x 1".

(9) ??????? There is corresponding outlet wound on back of right side chest, 1-1/2" x 1-1/2".

Internal examination:

Cranium and spinal cord, scalp, skull, membrane and brain injured.

Thorax-walls, right side pleurae, right lung, blood vessels were injured.

Abdomen-stomach contained semi-digested food material. Mouth, pharyn injured.

Death in the opinion of the doctor occurred due to fire-arm leading to haemorrhage, shock and death. Time between injury and death was opined by the doctor instantaneous, between death and post-mortem about 12 hours. He proved his report Exh.P.L., Pictorial Exh.P.L./1, inquest report Exh.P.K./1 and injury sheet Exh.P K

5. In order to prove the charge against the accused the prosecution produced 9 P.Ws., out of whom Shahid Ali (P.W.6) and Mst. Nusrat (P.W.7) furnished ocular account of the occurrence while Murtaza Khan, A.S.I. (P.W.8) and Bashir Khan, S.H.O. (P.W.4) conducted the investigation. The two doctors proved their post-mortem reports. The recovery of empties and bulbs and preparation of the site plan were proved by the two aforesaid Police Officers.

6. The accused appellant was examined under section 342, Cr.P.C. who admitted having charged a relative of the complainant party for the murder of his brother and father and having reported the occurrence earlier than the report in the present case was made. The recovery of bulbs and empties was stated to have been fabricated. He said that the accusation was false having been levelled by the interested witnesses. When asked as to why he was charged, the accused replied as under: --

?As a matter of fact, I have charged Aziz Ahmad etc. mentioned earlier for the double murder of my brother and father and in order to efface the affect of my charge against them, have been implicated in this case falsely. I produce copy of the relevant F.I.R. bearing No.46 of the even date, registered in the same police station under section 302/307/148/149, P.P.C., which is Exh.DA.?

7. The accused did not produce any evidence in defence nor he appeared as his own witness under section 340(2), Cr.P.C.

8. The trial Court believed the ocular testimony of Shahid Ali and Mst. Nusrat (P.Ws.) who deposed that they had seen the accused firing at the two deceased. The medical evidence and the recovery of empties from the spot were considered as a corroboration to the ocular testimony. The motive was also taken as corroborative piece of evidence. The learned Sessions Judge while discussing the point of identification of the accused held that both the parties were of 'the same locality and being neighbours had no difficulty to identity each other and particularly when there was no evidence that at the relevant time electricity was not available or there was load-shedding. In accepting the testimony of related witnesses namely, Shahid Ali and Mst. Nusrat and in rejecting the defence version about the connected case registered at the instance of accused Muhammad Ishaq vide F.I.R. No.46 Exh.DA. the learned Sessions Judge observed as under:--

"Conversely it was rightly argued by the S.P.P. that the case in hand is not the cross of case registered vide F.I.R. Exh.DA. because the time of occurrence given in both the F.I.Rs. and place of occurrence in both the cases are different. The occurrence vide F.I.R. of the instant case took place at 21-15 hours in the house of the complainant Shahid Ali (P.W.7) and the occurrence in the case F.I.R. No.46. (Exh.D.A.) took place at 21-10 hours in the Hujra of accused Muhammad Ishaq father. The occurrence of the instant case is offshoot of the case registered by the accused Muhammad Ishaq vide F.I.R. No.46 (Exh.DA) and this fact goes a long way to prove the motive of the case in hand as disclosed by Shahid Ali in his report Exh.P.A."

9. The discrepancies pointed out to the learned Sessions Judge were taken as minor discrepancies and about the failure of independent witnesses to witness the recoveries he observed that people are reluctant to come forward due to fear of revenge. On the basis of evidence furnished by the prosecution, the learned Sessions Judge was convinced that the charge against the accused was proved beyond any shadow of doubt and accordingly he convicted and sentenced the accused appellant as above.

10. We have heard Mr. Jehanzeb Rahim, Bar-at-Law, Advocate, for the accused appellant and Mr. Shahzad Ahmad, Advocate, for the State and with their assistance have gone through the entire evidence on record. The occurrence in which two persons were killed had taken place at 9-15 p.m. in the month of February. Prior to the present occurrence at 9-10 p.m. on the same night Muhammad Ishaq accused-appellant had reported to the police that his brother Muhammad Akram was killed while his father was injured with the firing made by Aziz Ahmad and Muhammad Alam and three others in the Hujra adjacent to the house of the complainant. Exh.DA. is the copy of the report produced by the accused while recording his statement under section 342, Cr.P.C. Aziz Ahmed was charged by the accused-appellant relative of Shahid Ali (P.W.6), although Shahid Ali denied his relation with Aziz Ahmad but his sister Mst. Nusrat admitted that Aziz Ahmad is their relative. Mst. Nusrat (P.W.7) further admitted that Aziz Ahmad etc. were charged for the murder of father and brother of accused Muhammad Ishaq. They, however, denied the suggestion that accused Muhammad Ishaq was not present on the spot and was substituted for the reason that he was the complainant against Aziz Ahmad etc. Bashir Khan, S.H.O. (P.W.4) admitted that accused Muhammad Ishaq was already in custody of Murtaza Khan A.S.I. (P.W.8) as a complainant in the connected case registered vide F.I.R. No.46 (Exh.DA.) and he arrested him as an accused in the present case. The Investigating Officer denied the suggestion that during investigation of the case, he came to know that Muhammad Israr and Muhammad Iqbal brothers of Muhammad Ishaq were responsible for the incident. The evidence has, therefore, to be appraised in the above facts and circumstances of the case and in that context the evidence furnished by Shahid Ali and Mst. Nusrat cannot be said to be coming from the month of independent witnesses: Shahid Ali and Mst. Nusrat P.Ws. are closely related to the deceased and due to aforesaid case F.I.R. No.46 registered at the instance of accused they had the motive to falsely depose against the accused. Therefore, to believe them a strong corroboration of their testimony was required for the safe dispensation of justice. We on the contrary find no such corroboration so as to accept them as truthful witnesses. It has I been held in number of reported cases that in accepting the oral testimony of interested witness, independent corroboration is a must. The two cases cited by the learned counsel for the accused appellant are Sheikh Muhammad v. Ghulam Muhammad and others 1985 S C M R 95 and Hazratullah and another v. The. State 1968 S C M R 1361. In these cases the evidence of the interested witness finding no corroboration from independent source was not believed and the accused were acquitted. The circumstances of the present case also do not support tile version given by the two eye-witnesses Shahid Ali and Mst. Nusrat. If. we look into the cross-examination of Shahid Ali we find that participation faced in the commission of the offence is highly improbable. He deposed that he wits proceeding to the police station for lodging the report but the police met him at a distance of sixty paces from his house. He admitted that before proceeding to the police station he remained on the spot for about ten minutes. He further admitted that occurrence had taken place at 9-15 p.m. If Shahid Ali had stayed for ten minutes on the spot and met the police at some distance from the house then the timing of report should have been either 9-25 or 9-30 p.m. and not 9-50 hours was made after deliberation and consultation inasmuch as prior to the present occurrence Muhammad Ishaq accused? appellant had made a report at 9-10 hours to the police about the occurrence in which his brother and father were killed and he had charged Aziz Ahmad, a relative of the complainant for firing and committing the murder of his brother and father. Bashir Khan, S.H.O. (P.W.4) has deposed that he arrested the accused when he was in custody of Murtaza Khan, A.S.I. (P.W.8). Murtaza Khan, A.S.I. (P.W.8) admitted that he recorded the report of Muhammad Ishaq accused the same night at 21-30 hours and time of occurrence of that incident was shown to be 21-10 hours. Keeping in view the deposition of these two A.S.Is., the presence of the accused at the time of .occurrence of F.I.R. No.47 at 21-15 hours appears to be highly improbable. The accused made a report (F.I.R. No.46) at 21-10 hours. He remained with Murtaza Khan, A.S.I. till he was arrested by Bashir Khan, A.S.I. The arguments of the learned counsel for the State that accused might have rushed to the police within five minutes after committing the offence is not appealing.

11. The medical evidence instead of providing corroboration is in conflict with the ocular testimony furnished by the aforesaid two P.Ws. The ocular testimony is to the effect that the deceased faced the accused when he was fired at. This shows that deceased could receive injuries on the front but the medical evidence is to the effect that injuries Nos.3 and 6 were caused on back side of the deceased. Again the witnesses have deposed that accused had fired with, Klashnikov at the deceased whereas the injuries caused are of different sizes leading to the inference that different weapons were used in the firing.

12. The evidence of recoveries of empties and bulbs also do not provide any corroboration to the ocular testimony. It is astonishing to note that Bashir Khan S.H.O. (P.W.4) could find the empties on the spot in the light of bulb but could not prepare the site plan the same night. The recoveries of empties and bulb were not witnessed by an independent witness from the locality though it was admitted by Shahid Ali (P.W.6) in the cross-examination that after the occurrence some 20/25 persons were attracted to the spot. The Investigating Officer had not even asked any one of them to witness and sign the recovery memos as marginal witness so that we could say that on their refusal to witness the recovery memos., he had no other option but to ask his own colleague Murtaza Khan, A.S.I. (P.W.8) to witness the recoveries. He had not sent the empties recovered from the spot to the Arms -Expert for his opinion as to whether these were fired from one or two different weapons. While dealing with this point in the case of Obaidullah and another v. The State P L D 1986 Pesh. 150, the learned Judges observed as under:--

"Empties allegedly recovered from spot were not sent to Fire-arms Expert to verify whether those were fired from one or different weapons--Recovery as such was rendered doubtful."

The recoveries of empties and bulbs, are all witnessed by Murtaza Khan, A.S.I. (P.W.8). In the facts and circumstances of the case, these recoveries should have been witnessed by some independent persons. The recoveries were neither mentioned in the inquest report as was the requirement of the Police Rules nor in the F.I.R. In the case of Peera etc. v. The State 1984 P Cr. L J 565 recoveries not mentioned in the F.I.R. and inquest report were considered as unreliable. Similarly in Adalat Hussain v. The State 1989 P Cr. L J 34 (D.B.) the recoveries not mentioned in the F.I.R. and inquest report and not witnessed by independent witness were doubted.

13. _ The Investigating Officer had recovered two bulbs from points Nos.8 and 9 in the site plan in order to show that the accused could be identified in the light of bulb but strangely enough he had not mentioned the voltage of bulb as only then it could be said that light was sufficient for identification. The site plan Exh.P.B. prepared by the Investigating Officer on the next day of the occurrence does not show the distance between point No.9, the place of bulb and point No.3, the place of accused.

Similarly, no distance is shown between point No.8 from where the second bulb was recovered and point No.3. He has also not shown the door knocked by the accused appellant and opened by the deceased. We would, therefore, conclude that the recovery of bulbs had been introduced only to show that accused could be identified at the time of occurrence and the recovery is not genuine.

14. The evidence brought on record would show that few minutes before the occurrence Muhammad Ishaq accused made a report to Murtaza Khan, A.S.I. (P.W.8) wherein he charged Aziz Ahmad, a relative of complainant party for firing at his brother and father. The report was reduced into Murasila and on the basis of this Murasila a case was registered under section 302/307,148/149, P.P.C. against Aziz Ahmad and others, vide F.I.R. No.46, dated 19-12-1990, Police Station Lundkhawar. The prosecution version is that Muhammad Ishaq accused had committed the murder of the father and brother of Shahid Ali (P.W.6) regarding which report was made on the spot. The defence version on the other hand, is that Aziz Ahmad a relative of the complainant had fired at the brother and father of the accused and that he was not responsible for committing the murder of Ghulam Oadir and Muhammad Yunis Ali, the two deceased in this case. The fact that in the double murder of father and brother of the accused, Aziz Ahmed and others were charged is admitted by Shahid Ali (P.W.6) in the cross-examination. He, however, denied that the relative of the accused had fired at them when they were in process of giving protection to Aziz Ahmed. He also denied the suggestion that relatives of the accused including his brothers Muhammad lqbal and Muhammad Israr were not charged because they wanted to implicate the accused who reported the occurrence of double murder of his father and brother. Thus, there are two ?versions one given by the prosecution and the other by the defence. When this t is the case then the version favourable to the accused is to be accepted.

In re: Muhammad Sultan v. Muhammad Aslam and another 1988 S C M R 857 it is held:--

"The appellate Court on the basis of this scrutiny of evidence correctly arrived at the conclusion that it was a case in which the prosecution version and the defence version were to be placed side by side and then the Court had to judge which of them was more plausible and if both such versions were possible the one favourable to the accused was to be preferred. It was on the basis of this settled principle that the respondent was acquitted."

In Muhammad Younas v. The State 1992 S C M R 1592 the august Supreme Court observed that:--

"In a case of two versions of the occurrence both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred, if the same gets some support from the admitted facts and circumstances of the case and appeals to common sense."

The principle enunciated in the aforesaid cases is equally applicable to the instant case though no plea of self-defence is involved.

15. Our appraisal of evidence has led us to conclude that the prosecution has not been able to prove the charges against the accused beyond reasonable doubt as required by law. In the facts and circumstances of the case, the conviction and sentence of the accused appellant is not sustainable in law. We would, therefore, accept this appeal, set aside the judgment dated 6-8-1992 of the learned Sessions Judge and acquit the accused-appellant of the charges levelled against him. He should be released forthwith if not required in any other case.

N.H.Q./1517/P ??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.