MUHAMMAD KHAN Versus THE STATE

By this appeal the appellant Muhammad Khan has challenged the judgment and the sentence passed by 1st Additional Sessions Judge, Kandkot on 10‑5‑1995, convicting and sentencing him to suffer imprisonment for life and to pay a fine of Rs.30,000. In default of payment of fine R.I. for 6 months was ordered. In addition to that a sum of Rs.20,000 as compensation to the heirs of the deceased was also ordered by the trial Court. The appellant is said to have caused the death of Ghulam Pinjal on 26‑6‑1988 at about noon time in the Town of Kandkot.

2. The facts in short are that Lakhmir Sabzoi and his son Ghulam Pinjal, who live in a village at a distance of 1‑1/2 miles from Kandkot, had come to Kandkot Town with some work. At the Bus stop, P.Ws. Asghar and Hazaro Sabzoi met them. Thereafter, all the four were proceeding to the Bazar when at about 11‑45 a.m. appellant Muhammad Khan Gabol armed with a gun came in front of them and after challenging deceased Muhammad Pihjal by saying that he was taking the revenge of deceased Ali Bux, fired at Ghulam Pinjal with a gun he was carrying, killing Ghulam Pinjal instantaneously. Thereafter, according to first version of the prosecution story as stated in the F.I.R., appellant Muhammad Khan escaped from the place of Wardat and according to the other version he was captured by the police at the spot. LAhmir then brought dead body of Ghulam Pinjal in a donkey cart to the police station alongwith P.Ws. Asghar and Hazarc, where his F.I.R. was registered. The police arrested the appellant, and produced a challan against him for his trial for killing Ghulam Pinjal. The trial Court read the charge to the appellant of having killed Ghulam Pinjal intentionally. The appellant pleaded not guilty to the charge. The prosecution led the evidence which comprised ocular testimony as well as circumstantial evidence in the shape of recovery of the murder weapon i.e. the gun. Apart from that evidence; evidence on the ‑point of motive was also led. In the statement under section 342, Cr.P.C. the appellant denied the allegations of the prosecution in toto and stated that the witnesses were having long standing enmity against him and that the gun, which was secured by police from him was his licensed gun. The appellant did not examine himself on oath, but in defence he produced one witness; who did not say anything about the incident. The trial Court on gumming up the evidence came to the conclusion that the prosecution had proved that appellant Muhammad Khan had intentionally committed murder of deceased Ghulam Pinjal by firing at him and that he was apprehended on the spot. He was, therefore, convicted and sentenced as described above.

3. The learned counsel for the appellant has challenged the judgment of the trial Court on many grounds. To summarise the arguments of the learned counsel for the appellant it may be said that according to him the learned Judge below has failed to consider the evidence of the prosecution in a critical manner and. that reliance could not be placed on the eye‑witnesses in view of material contradictions in their statements. Further, it is argued that the witnesses have deep rooted enmity against the appellant on account of earlier blood feud between the parties. According to the learned counsel for the appellant, the ocular testimony in this case required independent corroboration, which was not available in the present case and that there was no circumstantial evidence at all in this case. Learned counsel appearing for the State, however, supported the judgment and contended that the judgment and sentence may be maintained. In order to appreciate the contention of both the parties, the evidence recorded by the trial Court has been scrutinized with the help of the learned counsel for the parties in the Court. The main witness of the prosecution is P.W. Lakhmir, the father of the deceased: He is the most important witness of the prosecution. Lakhmir claims to be in company of deceased Ghulam Pinjal at the time of incident. He is the person, who had gone to the police station and lodged the report also. In his report, Lakhmir had stated that on the day of incident he alongwith his son Ghulam Pinjal had gone to Kandkot Town with some work. P.Ws. Asghar and Hazaro met them at the Bus stop arid then all the four started going towards Bazar. When they reached the place wherefrom the Bazar commenced, the appellant Muhammad Khan came in front of them with a gun. He gave a challenge to Muhammad Pinjal saying that he was going to avenge the murder of Ali Bux that day, and so saying Muhammad Khan fired a straight shot from his gun hitting Ghulam Pinjal, who fell down and died. He also threatened the witnesses not to come near otherwise they‑will also be killed. Lakhmir went on to state in the F.I.R. that thereafter Muhammad Khan ran away towards south and that he brought dead body of his son Ghulam Pinjal to the police station and lodged the report. In his deposition before the Court P.W. Lakhmir stated that on the day of incident he alongwith P.Ws. Asghar and Hazaro had come to Kandkot Town. When they reached the Bazar of Kandkot, deceased Ghulam Pinjal met them there. In unequivocal words he stated that as soon as Pinjal met them, appellant Muhammad Khan came there and committed the murder of his son Pinjal by firing at him. Thus, there is glaring contradiction in the material part of the prosecution story inasmuch as while lodging the report Lakhmir had stated that deceased had come with him from his village while in Court he stated that Pinjal had met him in the Bazar of Kandkot, where the appellant had confronted him and killed him. Another material contradiction in the statement of P.W. Lakhmir is that at the time of lodgipg of the F.I.R. he had stated before police that the accused, after firing at deceased Ghulam Pinjal had run away from the spot towards south but in his statement at the time of evidence before the trial Court he stated that the police constable had apprehended the accused on the spot with the gun. No explanation appeared from P.W. Lakhmir, when these contradictions in his statements before police and in Court were brought to his notice by way of cross‑examination by the defence counsel. However, the Investigating Officer, who had recorded the F.I.R. had died, and could not be examined by the prosecution. P.W. Lakhmir also admitted that many persons of the locality had come at the place of Wardat when the incident had taken place and that many of them had even identified the accused. Thus, P.W. Lakhmir has made an admission to this effect that apart from the three P.Ws. viz. he himself, his brother and his nephew some other witnesses could also testify about the incident but police examined no other witness, who could be the independent person of the locality. The Investigating Officer does not appear to have made any attempt to record the statement of any other person of the nearby locality in Town of Kandkot. About the motive, P.W. Lakhmir had stated that one Ali Bux, cousin of appellant Muhammad Khan was killed earlier. He further stated in cross-examination that blood‑feud was continuing between the complainant party and the appellant party, who are Sabzois and Gabols by caste, respectively. Four Sabzois were murdered by Gabols, one or two Gabols were also murdered by Sabzois prior to this incident. The case of the murder of Ali Bux was pending at the time of this incident. P.W. Lakhmir did not know as to who were the accused challaned in the case of murder of Ali Bux but he was positive that the present appellant Muhammad Khan was not one of the accused persons. Thus, P.W. Lakhmir had not stated in clear terms that the present appellant had a motive to kill deceased Ghulam Pinjal but he had conveyed in clear terms that there was a blood feud between Sabzois and Gabols and that since the deceased was a Gabol, therefore, appellant, who is a Sabzoi, had a motive. Thus, looking to the glaring and material contradictions in the evidence of Lakhmir, uncertainty of direct motive against the appellant, and the presence of blood‑feud between the parties (which is admitted by Lakhmir in his evidence), the Court must look for independent corroborative evidence before relying upon the evidence of P.W. Lakhmir.

4. For the purpose of corroboration, the learned counsel for the State has relied on the ocular evidence of P.Ws. Asghar and Hazaro. P.W. Asghar Ali is nephew of Lakhmir and thus is cousin of the deceased. P.W. Hazaro is the brother of Lakhmir. Asghar Ali in his evidence stated that on the day of incident Lakhmir and Hazaro had met him on the Bus stop wherefrom the three of them came to the Bazar, In the same breath P.W. Asghar Ali stated in the Court that he and Asghar Ali were present at the Bus stop when Lakhmir and Pinjal came there and then all the four came to the Bazar. He also stated that the police arrested the appellant at the spot alongwith his licensed gun and that thereafter dead body of Pinjal was taken to the police station on a donkey-?cart and that Lakhmir lodged the report at the police station. He stated that at the time of incident nobody‑ came at the place of incident from among the people of the locality and that police reached at the place of incident in a police van and apprehended the appellant and took him to police station in that van. The donkey‑cart in which the dead body of Pinjal was taken to the police station belonged to Mehardil, another son of the complainant, who came to the place of Wardat after about half an hour of the incident. He denied having stated before the police that the appellant had run away from the place of incident after firing at the deceased. About motive, he stated that deceased Ali Bux was the son of the cousin of appellant and that he was murdered about 2 years prior to the incident and that he did not know who was the accused in the case of murder of Ali Bux. However, he was positive that deceased Pinjal was not one of the accused in the case of murder of Ali Bux as, according to him, Pinjal was minor at the time of that incident. In order to appreciate the evidence of P.W. Asghar Ali one cannot forget that he is the kith and kin of the deceased, not living in the Town of Kandkot where the incident took place in a Bazar. The presence of Asghar Ali at the place of incident could not be called natural. Therefore, in order to rely on his evidence, his statement must be scrutinized carefully. At first, after stating that Lakhmir alone had met with him and. Hazaro, at the Bus stop, he corrected himself to say that Pinjal was also in company of Lakhmir. On a question as to why he had gone to Kandkot on that day he stated that he had gone there for "personal work and purchases of household articles". His evidence, shows further that he and Hazaro had come on foot from their village and reached Kandkot where Lakhmir and deceased Pinjal came by bus from their village that day. In direct contradiction to this assertion P.W. Lakhmir had stated that his son Pinjal left separately in early morning for Kandkot while he alongwith Asghar and Hazaro had left their village together. Thus, it is hard to rely on evidence of P.W. Asghar Ali. Therefore, it does not corroborate the statement of P.W. Lakhmir apart from the fact that P.W. Asghar All is also an interested witness, and his statement cannot furnish corroboration. The only other evidence from which corroboration to the evidence of P.W. Lakhmir could be obtained is the evidence of P.W. Hazaro. P.W., Hazaro stated in his deposition that appellant had committed murder of Ghulam Pinjal because Ghulam Pinjal was nephew of Hazaro and Hazaro was acting as a witness against the appellant in a murder case. He also stated in his deposition that appellant used to issue threats to him that if he gave evidence against the appellant in the case of murder, the nephew of Hazaro i.e. deceased Pinjal will be killed by him. Thus, a new theory about the motive of death of Pinjal has been advanced by P.W. Hazaro. He further admitted that he was convicted in two murder cases and that he was serving the sentence at the time of his giving deposition in this case. He further stated that he was convicted in a case of murder of one Balaj, who was relative of appellant Muhammad Khan. He also stated that appellant was facing trial in another case of murder of Sohno, in which case also Hazaro was a witness against the appellant and that appellant was acquitted in that case after the present incident. Sohno was not related to Hazaro. Further, he stated that he saw that appellant Muhammad Khan had put the barrel of gun on the body of the deceased and fired at him. He admitted that he was not residing in the village of complainant Lakhmir. Thus, P.W. Hazaro, apart from being highly interested witness, is a previous convict in two cases of murder, and he cannot be said to be an independent witness, therefore, his evidence can hardly be relied upon as corroborative to the evidence of P.W. Lakhmir. Lastly, there is the evidence of recovery of the licensed gun from appellant. No empty appears to have been secured by the police from the place of Wardat and there has been no report of the Ballistic expert about the matching of such empty with the gun which has been recovered from the possession of the appellant. The gun recovered from the appellant is admitted to be his licensed gun. Therefore, the recovery of gun also lends no corroboratory substance to the evidence of the eye‑witnesses. In the case of Dosa v. The State 1988 SCMR 1532, it was held that the recovery of the gun was inconsequential because no empty was recovered from the spot. Another case on this point is the case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928, in which case also recoveries of fire‑arms from the accused were held to be of no consequence as no empty was recovered from the spot. In the case of Bagh Ali and 4 others v. The State PLD 1973 SC 321, it has been held that the ocular evidence must, in order to carry conviction on capital charge, come from an unimpeachable source. If such source is not available then it must be supported by some strong circumstances, which would enable the Court to overcome the inherent doubt which such evidence must necessarily create. Yet another case on this point is of Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11, in which it has been held that where a witness is interested and also inimical and is thus likely to falsely implicate one or other accused it was essential to seek independent corroboration regarding each one of other accused. Therefore, coming to the conclusion, I regret to say that the trial Court has not followed the salutary principles of appreciation of the evidence laid down for the safe dispensation of criminal justice, in believing the evidence of witnesses in this case. There are no other supporting circumstances to the ocular evidence in this case. The testimony of the eye‑witnesses is not only partisan but also inimical apart from the fact that their evidence suffered from material contradictions. Thus, by no means their evidence was of unimpeachable character. Their evidence suffers from inherent improbabilities and if is likely that the eye‑witnesses had actually not seen the incident but because of the existing blood‑feud and enmity, they have implicated the present appellant. In any case, a doubt is created in the mind that these witnesses might not be present at the time of incident and, therefore, the benefit of doubt, which accrues to the appellant under all the cannons of justice, must be given to the appellant. The appeal is, therefore, accepted. The judgment and sentence are set aside and the appellant is ordered to be I released forthwith if not required in any other case.

N.H.Q./M‑2093/K ?????

Appeal accepted,