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Criminal Revision No. 1315 of 1967, decided on 8th February 1968.
, S. 307/34-Prosecution story, not ringing truth-Possibility of false implication of some of accused not ruled out-Accused, held, entitled to benefit of doubt.
The State v. Basirullah P L D 1964 Dacca 710 and Mohamed Faiz Bakhsh v. The Queen
P L D 1959 P C 24 rel.
-Credibility of prosecution witnesses found to be doubtful resulting in acquittal of 3 out of 4 accused-Testimony of such witnesses cannot form basis of conviction of fourth accused in absence of any independent corroborative evidence.
Mohammad Faiz Bakhsh v. The Queen P L D 1959 P C 24 and Ahmad Khan v. The State P L D 1962 Lah. 390 rel.
Qazi Muhammad Saleem for Appellant.
Waheed-ud-Din for A.-G. for the State.
This Criminal Revision filed by Sher Muhammad-is directed against the order of the learned Sessions Judge, Mianwali, dated the 3rd of November 1967, whereby acquitting the three co-accused, he maintained the petitioner's conviction recorded by Rashid Ahmad Magistrate Section 30, Mianwali, under section 307, P. P. C. awarding him a sentence of four years R.I plus a fine of Rs. 500 or to further one and a half years R.1. in default of payment thereof.
2. The relevant facts, as alleged by the prosecution, culminat ing in this revision are that on 2nd May 1966, at about Peshiwela, Muhammad Afzal (P. W. 1) the principal victim of assault was present in his house in village Pathi Tharukhelanwali in the Revenue estate of Chorwala, Police Station Musakhel. On hearing an alarm from a distance, he came out from his house and happened to meet Jahan (P. W. 2), Fateh Khan (P. W. 5), Alam Sher (P. W. 6) standing on a sand-dune nearby. He also joined them and in the meantime, the petitioner along with three acquitted co-accused, namely, his brother Muhammad, his cousin Fateh Khan and another Fateh Khan son of Muhammad Khan, emerged from the East, all armed with 12 bore guns, except Fateh Khan son of Khatta, who had a rifle. Seeing Muhammad Afzal, Sher Muhammad challenged him and. fired a shot at him from a distance of about 60 karams. This hit Muhammad Afzal in the abdomen. causing skin deep injuries. The second shot was fired by Muhammad, hitting Muhammad Afzal on his left leg. Fateh Khan P. W. while trying to intervene raised his hands and shouted to the accused to desist from firing. Not heeding this, Fateh Khan son of Khan Muhammad again fired a shot on Muhammad Afzal which instead hit Fateh Khan P. W. on his left hand. The last shot fired in the series was by Fateh Khan son of Khatta with his rifle, but none was hit. The accused then ran away.
The alleged motive for this murderous assault as set out in the statement of Muhammad Afzal (Ex. P. A.) recorded at 6-30 P. M., the same day by A. S. 1. Muhammad Khan at bus stand Wan-Balchran, at a distance of two miles from the place of occurrence, was that about a year before this occurrence, Sher Muhammad brother of Muhammad Afzal was murdered by one Ghazi son of Haji and others, relations of the petitioner and his co-accused and the case was tried by a Tribunal under the Criminal Law Amendment Act, which convicted only one person Muhammad Amir, acquitting all the rest, including Ghazi. Muhammad Amir had challenged this conviction in an appeal before Commissioner, Sargodha Division, while Muhammad Afzal P. W. filed a revision petition which was ultimately accepted by the Commissioner remanding the case for trial in the ordinary Court of law, and consequently Muhammad Amir was committed to the Court of Session on a charge of Murder. The petitioner, who was related to Ghazi and Amir had allegedly threatened Muhammad Afzal with dire consequences in case he did not stop pursuing the revision. On the basis of the statement of Muhammad Afzal (Ex. P. A.) the case was formally registered at Musakhel Police Station at 9-30 P. M., the night vide formal F.1. R, (Ex. P. Apl). Fateh Khan and Muhammad Afzal were examined by doctor Muhammad Aslam (P. W. 4) who found a lacerated wound with margin reddish 1' x 1/2" eleptical skin muscle deep on the back of left hand near the metacorpo phalyngial joint, and a lacerated wound 1" x 1' on the outer and back of left little finger where the junction of metacarpo phalyngial joint, vide report Ex. P. B. The wounds were inter-communicating and injury No. 2 was found to be grievous causing also fracture of the proximal bone of his left little finger. Both the injuries, according to the doctor were caused by a gun-shot. The examination of Muhammad Afzal revealed a gun-shot wound on the front of left leg middle part, 1 /4' x 1/4', and another gun-shot wound V" x a" on the left side of abdomen 1" above and outer side of the left side of umblicus, vide report Ex. P. C. The two injuries which could possibly be the result of one fire were found to be simple.
3. The case was principally investigated by A. S. 1. Muhammad Khan (P. W. 7) who visited the spot, prepared site plan Ex. P. D. and recorded the statements of the P. Ws., except ing some formal investigation by S. 1. Muhammad Banaras (P. W. 9). The petitioner and the three co-accused were ulti mately sent up to stand trial for an offence under section 307/34 P. P. C. They pleaded not guilty to the charge and the position taken up by the petitioner, his brother, Muhammad and Fateh Khan son of Muhammad Khan was one of denial simpliciter alleg ing false implication on account of enmity while the fourth co-accused Fateh Khan son of Khatta who was employed as a gangman in the neighbouring beat pleaded alibi and produced five witnesses in defence. The suggestion made by the defence during cross-examination of the P. Ws. was that at the relevant time, one Mst. Jawai, maternal aunt of the petitioner and paternal aunt of Ghazi had died the same day, and that the members of the accused party were return ing-from the graveyard after burial when they were waylaid by Muhammad Afzal and others and the parties exchanged fires resulting in injuries to Muhammad Afzal and Fateh Khan. Plac ing full reliance on the testimony of the P. Ws. and discarding the defence suggestion, as also the plea of alibi taken by Fateh Khan, the learned trial Magistrate convicted the petitioner and the two co-accused. As stated earlier, in appeal, the learned Sessions Judge accepting the plea of alibi raised by Fateh Khan "was not convinced as to the participation of Muhammad and Fateh Khan whose appeal was accepted. The maintenance of the petitioner's conviction and sentence, however, led to the present Criminal Revision.
4. The learned counsel for the petitioner has raised the following contentions before me;
(1) That there is considerable delay in the lodging of the first information report for which no reasonable explanation is forth coming;
(2) that the prosecution version as set out in the first infor mation report does not inspire confidence as the petitioner and his co-accused could not have possibly foreseen an alarm at a distance of about half a mile from the place of occurrence fetch ing Muhammad Afzal out of his house so as to afford them an opportunity of assaulting him ;
(3) that the alleged motive does not stand fully established and even otherwise the motive, if at all, lay more on the side of Muhammad Afzal to open the assault to avenge the murder of his brother ;
(4) that although admittedly several persons had gathered at the spot, the prosecution has miserably failed to produce a single disinterested witness in support of its version which relies only on the testimony of interest witnesses who are all related interse, besides being inimical towards the petitioner;
(5) that the finding given by the learned Sessions Judge that the injuries suffered by Muhammad Afzal and Fateh Khan wereeach caused by a single shot supported by the non-recovery of any empties from the spot leading to the irresistible conclusion of the false implication of at least three of the co-accused, would thoroughly discredit the entire prosecution story rendering it extremely unsafe to form the basis of the petitioner's conviction. Reliance is placed in this regard on Wasiullah v. Mirza All P L D 1963 S C 25, The State v. Basirullah P L D 1964 Dacca 710, Mohamed Faiz Bakhsh v. The Queen P L D 1959 P C 24 and Ahmad Khan v. The State P L D 1962 Lab. 390 and that the prosecution' story stands further falsified by the testimony of the doctor who categorically stated that the injuries were sustained by the prosecution witnesses within not less than twelve hours of the medical examination which took place at 9-30 P. M. It is argued that this would lend considerable support to the defence version, that in fact the members of the accused party were returning from the burial of Mst. Jawai when they were attacked by the complainant side.
5. Some of the contentions raised by the learned counsel do not seem to be without substance. Although there is no convincing material on the record to show that the motive lay with the accused party, yet in view of the admitted instance of blood feuds between the parties, the motive would lose much of its significance as direct ocular evidence is available. Assuming that it lay with the petitioner and his co-accused and they were actually on the look out for opportunity to assault Muhammad Afzal (P. W. 1), one fails to understand how could they foresee that a sudden alarm raised at half a mile's distance would fetch him out of his house so as to afford them the desired opportunity to assault him. The alarm which attracted the victim of the assault like everybody was explained by Ramzan (P. W. 3) as having been raised in the course of a fight between him and another namesake of his over the theft of fruits. Obviously neither the time of Peshiwela nor the place of occurrence in close proximity to the village abadi could offer any attraction for choice to the assailants who suddenly appeared at the scene on seeing Muhammad Afzal. Thus the Prosecution version wt the very outset leaves much to be desired and does not inspire confidence. Even the question of delay is not without force. The occurrence took place at Peshiwela on the 2nd of May 1966, and taking the most favourable view for the prosecution that the time of occurrence could be stretched to 3 p. m., the complainant party could not have takers more than one hour to traverse the distance of two miles to reach the bus stand Wan Pachran, and if an allowance of another half an hour is made so as to enable them to recover from the shock of a sudden illness, they should have repaired to the bus stand at 4-30 p. m. at the latest and yet the statement was recorded by the A. S. I. at 6-30 p. m. there being nothing to suggest that complainant party had to wait at the bus stand. Obviously, therefore, there appears to be at least two hours time-lag leaving sufficient room for confer and consultations for the complainant party. As such, one is inevitably driven to the conclusion that the prosecution version which solely rested on the testimony of interested witnesses bad been sought to be elaborated and exaggerated before it was put forth.
6. The contention that all the prosecution witnesses were re lated Inter se besides being inimical to the accused persons though sought to be explained away by the learned trial Magistrate, did find favour with the learned Sessions Judge and for good reasons too. The much-too obvious relationship of all the P. Ws. Inter se coupled with the existence of blood feuds certainly called for greater caution in the assessment of their testimony which prudently needed corroborative evidence. The only corroboration available in the case in the absence of recoveries is the medical evidence which if believed appears to be more of a hindrance than help to the prosecution. It was contended by the learned counsel for the State that the assertion made by doctor Muhammad Aslam (P. W. 4) that the duration of the injuries could not be less than twelve hours was not based on any accepted principles of medical jurisprudence. Even if this position is conceded the possibility of the two injuries sustained by Muhammad Afzal being the result of one shot cannot be ruled out, and as such imports considerable element of doubt in the prosecution story according to which of the two injuries sustained by Muhammad Afzal, one was attributed to the petitioner and the other to his brother Muhammad. Equally significant are two other seemingly small points which militate against the credibility of the prosecution witnesses. A suggestion was consistently put to all the P. Ws. that on the day of occurrence, Mst. Jawai an aunt of the petitioner had died in the village and the accused party was busy in its burial. This suggestion was denied by all the P. Ws., except Jahan (P. W. 2) who admitted this fact. This would indicate that the P. Ws. while trying to suppress this patent fact were certainly going out of the way to depose falsely with a view to avoid any possible support to the defence version. Of no less significance is the conduct of this witness who admitted in cross-examination that after the occurrence he and Alam Sher P. W. left for their houses. This is not consistent with the ordinary course of human conduct in such circumstances and as such introduces another element of doubt in the prosecution story which did not find support from any independent evidence though admittedly several persons were present at the spot at the relevant time.
7. Again, it would be pertinent to determine the effect of the acquittal of the three accused on the case of the petitioner. Fateh Khan son of Khatta who was undeniably employed as a gangman at the relevant time allegedly fired a shot with his rifle at Muhammad Afzal which missed. No rifle or any other weapon of offence was recovered from Fateh Khan, the petitioner, or the other co-accused. This per se would be good enough to cast doubt on the participation of Fateh Khan. Further support 1s lent to this by the defence evidence adduced in support of his plea of alibi based on documents which though discarded by the learned trial Magistrate, was given due weight by the learned Sessions Judge in earning an acquittal for Fateh Khan in appeal. As stated earlier, the prosecution story does not have a ring of, truth and the possibility of false implication of at least some of A the accused could not be ruled out. The learned Sessions Judge) was, therefore, justified in giving the benefit of doubt to three out of the four accused. Once the credibility of the P. Ws. is held to be doubtful resulting in the acquittal of a majority of the accused to form it the basis of the conviction of the fourth accused in the total absence of any independent corroborative evidence, would be wholly unsustainable being in consistent with the accepted principles of administration of criminal justice. It is here that the learned Sessions Judge has fallen into an error. It appears that the learned Sessions Judge was influenced by the fact that all the P. Ws. were agreed in the petitioner's participation in the assault as having fired the first shot. In view of the doubtful credibility of their statements in respect of three of the four accused, he should have looked for independent corroborative evidence which is conspicuous by its absence. In Ahmad Khan v. The State P L D 1962 Lah. 390 after reviewing considerable case law on the point, their Lordships observed as follows: -
"It is well-established rule of prudence that when prosecution witnesses are discredited in respect of majority of the accused, it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corrobora tion in respect of the each accused."
Reliance was placed in this regard on Mohamed Faiz Bakhsh v. The Queen P L D 1959 P C 24 which laid down the rule of indivisibility of credibility. To the same effect is The State v. Basirullah P L D 1964 Dacca 710 in which Murshed, J., (as he then was) rejecting a murder reference observed as follows: -
"The least that can be said on behalf of the defence is that grave doubts arise in the mind with regard to the story which the prosecution has tried to establish in this case, and we propose to give the condemned prisoner the advantage and benefit of such doubts."
I am inclined to think that the aforesaid authorities are attracted with full force to the instant case and the petitioner is enitled toll benefit of doubt.
8. In consequence, I allow the petition, set aside the conviction and sentence of the petitioner and direct that he may be released from Jail forthwith, if not required in any other case. The fine if already paid by him be refunded.
Petition allowed.
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