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Criminal Revision No. 978 of 1967, decided on 6^th December 1967.

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---‑Evidence‑Eye‑witnesses found to have falsely implicated one accused‑Presumption that they could also falsely implicate other accused‑Evidence of such witnesses cannot be accepted unless corroborated by independent evidence.

Ahmad Khan and another v. The State P L D 1962 Lah. 390 and Abdul Raziq v. The State P L D 1964 Pesh. 67 rel.

S. 45‑Experts evidence Forensic expert‑Gun, empty cartridge and pellets sent for expert's opinion‑Expert not examined in Court nor his report exhibited‑Case of prosecution, held, gravely prejudiced Prosecution duty bound to produce report even ii it goes against it‑Penal Code (XGV of 1860), S. 307/34.

M. G. Cheema for Appellants.

Malik Salim Ahmad for A.‑G. for the State.

This is a Revision Petition against the judgment of the Additional District Judge, Jhang, dated the 31st July 1967, dismissing the appeal of the applicants against the judgment of the First Class Magistrate, Jhang with section 30 Powers, dated 20th May 1967, whereby the learned Magistrate had convicted Sardara, son of Bhagoo, aged 40 years, and Mahni son of Inayat, aged 25 years, under section 307 read with section 34, P. P. C. and sentenced each of them to four years' R. I. and a fine of Rs. 1,000 each, and in default to undergo R. I. for one year for causing injuries to Nazar. Muhammad P. W. I and Jiwan P. W. 2.

2. Nazar Muhammad P. W. 1, is a resident of Chack No. 251/JB, in District and Tehsil Jhang and Jiwan P. W. 2, aged 25 years, is a resident of Chak No. 161/JB in the same Tehsil and District. According to the prosecution, on the evening of 4th May 1965, Nazar Muhammad P. W. and Jiwan P. W. 2 were returning from Chak No. 251/JB. Nazar Muhammad. F. W. 1 was on a mare and Jiwao P. W. 2 was on a bicycle and as they were near a watercourse in the area of Kodhan, the accused and one Ahmi came out of a growth of reeds. Sardara accused fired at Nazar Muhammad P. W. 1, who was injured and fell of his horse, and Mahni accused, fired at Jiwan P. W., who was injured and fell of his bicycle. Ahmi had a hatchet, and he shouted that Nazar Muhammad P. W. I and Jiwan P. W. 2 should be killed, but the accused ran away. The F. I. R. was lodged at Mochi Wala Police Station, which is 6 miles away from Chak No. 161/JB, and it was submitted that whilst Jiwan P. W. 2 was able to walk to the Police Station, Nazar Muhammad P. W. 1 had to be carried on a cot:

3. The next morning Farzand Ali, A. S. I. C. W. 7 came to the place of the alleged offence and prepared a site plan Exh. C. W. 7/A. He also found an empty cartridge on the spot, which he took into his possession, vide recovery memo. Exh. P. C. which was attested by Wahab P. W. 5 and Bahadur P. W. 6. Meanwhile, Kadir Bakhsh, Police Constable had taken Nazar Muhammad P. W. 1 and Jiwan P. W. 2 to the Hospital, and brought them back after examination by Dr. Muhammad Asghar C. W. 1. Kadir Bakhsh, Foot Constable had also handed over to Farzand Ali, A. S. I. a bloodstained shirt being Exh. P/2 and two bottles Exhs. P/3 and P/4 containing pellets which Farzand Ali, A. S. I. took into his possession vide recovery memo. Exh. P. 6. Wahab P. W. 5 and Bahadur P. W. 6 were also attesting witnesses of Exh. P. B. and Exh. P. C. Dr. Muhammad Asghar C. W. 1 examined Nazar Muhammad P. W. 1 and found six gun‑shot wounds. Exh. C. W. 1/A is a correct carbon copy dated 6th May 1965, of his medico legal examination report of Nazar Muhammad P. W. 1. On the same day Dr. Muhammad Asghar C. W. l also examined Jiwan P. W. 2 and found one injury caused by a gun‑shot on his right shoulder. Exh. C. W/B is a correct carbon copy of his medico legal report. According to the said report, Jiwan P. W. 2 had only one gun‑shot wound 1/5" x 1/5" x skin deep on the right shoulder in 2" x 1 area not blackened. According to the report of Dr. Muhammad Asghar, Nazar Muhammad P. W. 1 had the following injuries:‑

(1) A lacerated wound 2" x 1 " x bone deep which is frac tured on the outer anterior, part of the right upper arm 2" below the shoulder highest point, margins are inverted, note blackened being the wound of inlet.

(2) 29 other than gun‑shot wounds 1/5" x 1/5" in diameter, each, skin deep, all around injury No. 1 in 5" x 3' area including injury No. 1 out of which ten are below injury No. 1. 11 above the injury No. 1. Rest on outside. The margins in all are inverted and not blackened.

(3) A tapering lacerated wound, skin deep, margins not blackened 1" x " wider from mid and post part first behind injury No. 1.

A tapering lacerated gun‑shot wound, skin deep, margins not blackened " X 1/5" parallel x ' above injury No. 3.

(5) A lacerated irregular wound, inverted margins 1 ' X ' on the back of the right shoulder 2" behind and at level with injury No. 1 being a wound of exit. A pellet under the skin around it also palpable injury.

(6) 4 other lacerated wounds 1/6" x 1/6" each margin inverted around injury No. 5 in between injury Nos. 1 and 5.

Further, on 9th May, 1965 Sardara accused appeared before Farzand Ali, A. S. I. and surrendered his gun vide recovery memo. Exh. P. D. and Sultan P. W. 8 and Faiz Muhammad P. W. 11 were attesting witnesses of the said recovery. It is important to note that, although the gun Exh. P./1 and the cartridge Exh. P. C. and pallets Exhs. P. 3 and P. 4 were taken possession by the police for the purpose of obtaining a report from the Forensic Science expert, the prosecution did not produce the said report in the trial.

3. The only material witnesses therefore, are Nazar Muhammad P. W. 1, Jiwan P. W. 2, Mansoor P. W. 3 and Muhammad P.W. 4, Nazar Muhammad P. W. 1 was a Lambardar of Chak No. 161. According to his evidence, shortly before the alleged occurrence, Jiwan P. W. 2 came to him with a complaint that his bullock had been stolen. Therefore, they both went to Chak No. 251/JB to make enquiries about the bullock on 4th May, 1965, and they were returning from their enquiries. Manzoor P. W. 3 and Muhammad P. W. 4 were following them. At about sunset, when they were in the area of Chak No. 161 near a watercourse, the petitioners and Ahmi came in front of them and attacked them. Nazar Muhammad P. W. 1 said that Sardar accused fired at him and he fell off his horse and that Mahni accused fired at Jiwan P. W. 2 who fell of his bicycle and was injured. Nazar Muhammad P. W. 1 said that he was attacked, because about three years ago he had appeared in a murder case as a witness against Sardar accused. Jiwan repeated the story of the occurrence as stated by Nazar Muhammad P. W. He also said that had had lodged a complaint with the police about the theft of his bullock. Manzoor P. W. 3 and Muhammad P. W. 4 corroborated the evidence of Nazar Muhammad P. W.1 and Jiwan P. W. 2. However, it was established in cross‑examination that the brother of Manzoor P. W. 3 was married to the daughter of Nazar Muhammad P. W. 1, and that Muhammad P. W. 4 was also a cousin of Nazar Muhammad F. W. 1, and further his wife was the sister of Manzoor P. W. 3 and also a niece of Nazar Muhammad P. W. 1.

4. The accused denied having committed the offence and stated that a false case had been filed against them because of the enmity of Nazar Muhammad. They examined one Akbar D. W. 7 who said that he was watering his field near the place of occurrence on the day of the occurrence (4th May, 1965) and he heard only one gun‑shot report and he went to the place of occurrence and found Nazar Muhammad P. W. 1 sitting injured. The defence also examined Muhammad Ayub D. W. 6 who brought the F. I. R. Registers of the appropriate Thana and, according to the report, no complaint had been lodged by Jiwan P. W. I about the theft of his bullock between 13th March, 1965 and 4th May 1965. The case of the accused in the trial Court appears to have been that, as Nazar Muhammad's enmity with the accused was proved the evidence of the other witnesses: namely, Manzoor P. W. 3 and Muhammad P. W. 4 should not be accepted as they were very close relations, and were interested witnesses. As to Jiwan P. W. 2, the submission was that he was not a reliable witness because the police records showed that he had not filed any complaint about the stolen bullock, despite his assertion that he had lodged a complaint. The defence also relied on the fact that the prosecution had not produced the report of the Forensic Expert about the gun Exh. P/I nor examined him, nor produced the mare or the bicycle from which Nazar Muhammad P. W. 1 and Jiwan P. W. 2 were alleged to have fallen off. These submissions were rejected by the learned Magistrate who convicted the accused as stated. However, the learned Magistrate decided to give the benefit of doubt to Ahmi, who was acquitted, and no appeal was filed against his acquittal. Therefore, the defence had taken a further plea before the learned District Judge that the prosecution evidence had been rejected as far as it affected Ahmi and should not, therefore, be believed.

5. The learned counsel for the applicant has contended, inter alia, that the wilful suppression of the report of the Forensic Expert and the failure to examine him invites a presumption against the prosecution case. He further submitted that in view of the enmity between Nazar Muhammad P. W. 1 and Sardara accused, and in view of the fact that Ahmi had been acquitted, the evidence of the so‑called eye‑witnesses should not be accepted without corroboration and as there was no corroboration, the Courts below have erred in convicting the petitioners.

6. In view of Nazar Muhammad P. W. 1's enmity against Sardara there is no doubt that his evidence cannot form the basis of a conviction, unless it is corroborated by independent evidence, Jiwan P. W. 2 is also not a reliable witness, because his statement that he bad lodged a report with the local police about the theft of his bullock was proved false. As to the other two eye‑witnesses, Manzoor P. W. 3 and Muhammad P. W. 4, they are close relations of Nazar Muhammad P. W. 1. Although this does not make their evidence unreliable merely because of their relationship with Nazar Muhammad P. W. 1, their evidence has to be considered carefully before it can form the basis of a conviction. However, all these witnesses (namely Nazar Muhammad P. W. 1, Awan P. W. 2, Manzoor P. W. 3 and Muhammad P. W. 4) had clearly implicated Ahmi in the attack oh Nazar Muhammad P. W. 1 and Jiwan P. W. 2. No doubt they did not attribute an active part to him, but according to all of them, he was armed with a hatchet and when Nazar Muhammad P. W. 1 and Jiwan P. W. 2 had fallen on the ground on account of injuries, he had raised lalkaras when they were injured. If the evidence of the eye witnesses is to be believed, then certainly Ahmi could not have been acquitted. But the learned Magistrate gave him the benefit of doubt and acquitted him, and no appeal was filed against hi acquittal which has become final. The conclusion is that the eye witnesses have falsely implicated Ahmi, and if they could falsely implicate one accused, they could falsely implicate the other accused. As a rule of prudence, therefore, the evidence of these eye‑witnesses cannot be accepted unless it is corroborated by independent evidence. In Ahmad Khan and another v. The State (P L D 1962 Lah. 390) a Bench of this Court held that when prosecution witnesses are discredited in respect of the majority of the accused, it will not be safe to believe their evidence to respect of the remaining accused, unless there is some independent corroboration in respect of each of the accused. It is true that in the revision before me the eye‑witnesses have falsely implicated only one out of the three accused. But the ratio decidendi of the judgment cited is that when a witness gives false evidence, a conviction should not be based on his evidence unless it is corroborated by independent evidence. I am fortified in my opinion by the observations of Mr. Justice Faizullah in Abdur Raziq v. The State (P L D 1964 Pesh. 67). At page 80 of the judgment Mr. Justice Faizullah observed:‑

"It is a well‑established principle of law that the veracity of a witness is not "divisible", and in a case a witness is not believed in regard to some accused, he cannot be believed in regard to others without independent corroborations in material parti culars in regard to each of the remaining accused. If any authority is needed in support of the above view, reference may be made to the following:‑

Muhammad Fait Bakhsh v. The Queen P L D 1959 P C 24,

Ashraf and others v. The Crown P L D 1956 F C 86,

Rehmat and others v. The State P L D 1959 S C 109, and

Ahmad Khan and another v. The State P L D 1962 Lah. 390."

All the relevant authorities were considered by Mr. Justice

Faizullah in this judgment, and, therefore, I have to examine whether in this Revision Petition the ocular evidence against the petitioners is corroborated in any way.

7. According to the eye‑witnesses, Nazar Muhammad P. W. 1 had fallen off from his horse and Jiwan P. W. 2 had fallen off from his bicycle. If the prosecution version of the F. I. R. is true, it is likely that the horse on which Nazar Muhammad P. W. 1 was riding would also have been injured, but the horse was never examined. Above all, the prosecution had recovered the pellets fired and an empty cartridge and Sardara accused had voluntarily needed over his gun to the police, and the gun, the pellets and the cartridge were sent for examination to the Forensic Expert, but the said expert was never examined. I find it difficult to understand why the prosecution failed 'to examine the Forensic Expert, when the gun of the accused with the pellets and an empty' cartridge had been sent to him for examination. If the report of the expert was against the prosecution it would still have been the duty of the prosecution to place this evidence before the Court On the other hand, if the report of the expert was in favour of the prosecution, the prosecution have gravely prejudiced their case by not examining him. In the circumstances, there is no independent corroboration whatsoever of the ocular evidence, and on the basis of the judgments of their Court cited by me, it is clear that the lower Courts have erred in convicting the accused solely on the basis of this ocular evidence. Therefore, I allow this revision petition and set aside the conviction, and sentences imposed on the accused. The accused shall forthwith be released unless they are required in some other case.

Petition accepted.

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