HAROON alias HAROONI vs THE STATE and another

' MUHAMMAD MUNIR KHAN, J.---This Criminal Appeal No,126 of 1994 arises from the facts that in the incident which took place on 2-8-1984 at 7-45 a.m. In the premises of District Court, Faisalabad, Abaidullah and Muhammad Rafiq lost lives and Muhammad Yousaf P.W. Received fire-arm wound.

According to the prosecution, when, at the eventful time, Abaidullah deceased and his brother Muhammad Zafarullah Khan P.W.9, after attending the Court of Rana Bashir Ahmed MIC, reached near the Court Room of Mr. Muhammad Afzal Bajwa MIC, Haroon appellant armed with Carbine, Ilyas armed with Carbine and Abdul Jabbar alias Maja armed with dagger, came there. Haroon fired shot at Abaidullah hitting on his chest and elbow. Muhammad Ilyas aimed Carbine at Muhammad Zafarullah and fired shot which incidentally hit Muhammad Rafiq deceased and Muhammad Yousaf P.W. The occurrence was also seen by Muhammad Salim, Muhammad Naeem and staff of the Court of Mr. Muhammad Afzal Bajwa MIC. Abaidullah and Muhammad Rafiq were removed to the District Hospital, Faisalabad where they succumbed to the injuries on the same day.

2. The motive allegedly was that a criminal case was registered against Abaidullah deceased on the report of Abdul Jabbar acquitted accused, for causing injures to Haroon appellant. To avenge that incident, the appellant, Muhammad Ilyas and Abdul Jabbar co-accused have allegedly killed the two deceased and injured Muhammad Yousaf.

3. F.I.R. Is statement Exh. PK of Muhammad Zafarullah P.W.9 which was recorded on the spot by Muhammad Hanif S.I. P.W.12 at 7-55 a.m. On the basis of this statement formal F.I.R. Exh. PK/1 was registered at Police Station Kotwali, Faisalabad on the same day at 8-10 a.m. By Idrees Ali S.I. P.W.7.

Dr. Iftikhar Hussain Peracha P.W.1 examined Abaidullah and Muhammad Rafiq before their death.

He also examined Muhammad Yousaf P.W. On the same day and found one fire-arm wound on his person and an abrasion on the back of his left elbow. Dr. Imtiaz Ahmed Gill P.W.2 conducted post- mortem examination on the dead body of the two deceased. He found seven fire-arm wounds and four lacerated wounds on the dead body of Muhammad Rafiq deceased. The injuries suffered by him were sufficient to cause death in the ordinary course of nature He found five fire-arm wounds on the dead body of Abaidullah. The injur suffered by him at his chest was sufficient to cause death in the ordinary course of nature.

4. Abdul Jabbar acquitted accused was arrested on 17-8-1984. Haroon appellant and Ilyas acquitted accused were arrested on 10-3-1985. Abdul Jabbar got recovered Khanjar on 21-11-1984 in the presence of Muhammad Zafarullah P.W.9 and Muhammad Hanif S.I. P.W.12. Haroon appellant got recovered Carbine on 14-7-1985. Ilyas got recovered Carbine on the same day. The recoveries were effected by Muhammad Hanif S.I. P.W.12 in the presence of Muhammad Suleman P.W.6 since no empty was recovered from the spot and Khanjar was not blood-stained, the recoveries from the appellant and his co-accused were of no legal consequence.

5. The prosecution examined thirteen witnesses in all. Muhammad Zafurallah Khan P.W.9, and Muhammad Hussain Javed, Prosecuting S.I. P.W.8 have given the ocular account of the occurrence.

In their statements before the Court they stated that Haroon fired shots from his Carbide hitting on the person of Abaidullah; and Muhammad Ilyas fired shot hitting Rafiq deceased and Muhammad Yousaf P.W. They stated that the occurrence was also seen by Muhammad Saleem and Muhammad Naeem P.Ws. It may be noted here that Yousaf, the injured witness, Muhammad Saleem and Muhammad Naeem were given up as having been won over. Muhammad Suleman P.W.6, Muhammad Zafarllah Khan P.W.9 and Muhammad Hanif S.I. P.W.12 have supported the recovery of weapons from the appellant and his co-accused. Dr. Iftikhar Hussain Peracha P.W.1 has proved the Medico-Legal Reports of the two deceased and of Muhammad Yousaf P.W. Dr. Imtaiz Ahmed Gill P.W.2 has proved the post-mortem examination report of the two deceased. The rest of the evidence is almost of formal nature.

' When examined under section 342, Cr.P.C., the appellant and his co-accused denied all the incriminating circumstances. They raised the plea of false implication on account of enmity and suspicion. No witness was produced in defence.

6. On the conclusion of the trial, the learned Additional Sessions Judge, Faisalabad, vide his judgment dated 10-12-1987 acquitted Muhammad Ilyas and Abdul Jabbar co-accused of the charges giving them the benefit of doubt. Relying on the ocular evidence furnished by the aforesaid two eye-witnesses and circumstances of the abscondence of the appellant/Haroon, he convicted him under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,10,000 or six month's R.I. In default, with the direction that half of fine if recovered be paid to the legal heirs of the deceased. Since Muhammad Yousaf had not appeared as a witness before the trial Court, no conviction under section 307/34, P.P.C. Was recorded and all the accused were acquitted of this charge. Haroon filed an appeal (No, 216 of 1988) against his conviction and sentence in the Lahore High Court, Lahore. State filed Appeal No,902 of 1988 against acquittal of Muhammad Ilyas and Abdul Jabbar co-accused and Criminal Revision (No,484 of 1988) for the enhancement of sentence of Haroon appellant. The complainant also filed a Criminal Revision (No,267 of 1988) for enhancement of the sentence of Haroon appellant. Learned High Court, through a single judgment, dismissed the State Appeal against acquittal of Muhammad Ilyas and Abdul Jabbar and the appeal filed by Haroon appellant against his conviction and sentence but accepting the revisions filed by the State and the complainant, enhanced the sentence of imprisonment for life of Haroon to sentence of death. Hence this appeal.

7. It may be noted that neither the State nor the complainant has filed any petition for leave to appeal against acquittal of Muhammad Ilyas and Abdul Jabbar.

8. Learned counsel for the appellant has argued that the High Court has ignored the principles enunciated by the Supreme Court for safe administration of justice in criminal cases; that Muhammad Zafarullah Khan P.W.9 was an interested witness and Muhammad Hussain Javed is not mentioned in the F.I.R. Yet they were believed without corroboration qua the appellant; and that despite the case of the appellant being at par with that of Muhammad Ilyas, he (the appellant) has been convicted on the same evidence. Learned counsel for the State has supported the impugned judgment.

9. On careful examination of evidence and circumstances of the case made in the light of the arguments addressed by the learned counsel for the parties, we find that according to the F.I.R., three persons namely, Muhammad Yousuf, Naeem and Muhammad Saleem had seen the occurrence, of them Muhammad Yousaf sustained injuries during the occurrence. Strangely enough, none of them has been produced by the prosecution. Muhammad Zafarullah Khan P.W.9 is the real brother of Abaidullah deceased. Learned trial Court found "in this case Zafarullah P.W. Is not only a relative of the deceased but also inimical and hostile towards the accused for the reason that the parties were having previous litigations with each other." In his statement before the Court, Muhammad Zafarullah P.W. Admitted that about ten years before the present occurrence, a case was registered against Abdul Jabbar accused in which he and his brother Shujaullah were witnesses against him. So, enmity of Muhammad Zafarullah with the appellant is a proved fact. No doubt, Muhammad Hussain Javed P.W.8 is an independent witness haying no motive whatsoever to involve the appellant falsely in the case, but he has not been believed to the extent of the two acquitted accused, particularly Muhammad Ilyas to whom he had attributed effective role of firing shot at Muhammad Rafiq deceased. The High Court was of the view that the eye-witnesses had thrown the net wide enough to involve all the members of the accused family and that Abdul Jabbar and Muhammad Ilyas were involved in the case because they were real brothers of Haroon. This will show that Muhammad Hussain Javed although an independent witness had shown reckless disregard for the truth by falsely involving the two co-accused in the case. Mere fact that a witness is neither related to the complainant nor inimical towards the accused does not stamp his testimony necessarily with truth. Acid test of the veracity of a witness is inherent merit of his own statement. Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule, however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without "orroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought.

10. In view of the above, we are convinced that no implicit reliance can be placed on the ocular evidence produced in the case. In, any case, the rule of prudence requires independent corroboration of the ocular testimony qua the appellant. Learned counsel for the State was of the view that the circumstances of abscondence of Haroon appellant will furnish satisfactory corroboration to the ocular evidence. We do not agree with him for the reasons that a person who has been named as a murderer, whether rightly or wrongly, usually makes himself scarce; sometimes out of fear of the police and sometimes being coward enough to face the hardships of arrest and detention. In the instant case, this circumstance was equally available against Muhammad Ilyas co-accused but it has not been used against him for the reasons that he was avoiding appearance being innocent and falsely involved in the case. Same reasoning is available to the appellant as well. Even otherwise, the circumstance of abscondence of Haroon does not take the prosecution case against him any further. For all these reasons we feel that the prosecution has failed to prove its case beyond reasonable doubt against the appellant.

11. The appeal is accepted. The appellant's conviction and sentence is set aside and he is hereby acquitted. He shall be released forthwith if not required to be detained in any other case.