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Criminal Appeal No. 558 of 1966, decided on 3rd December 1968.
S. 302‑Murder‑Witness‑ Eye‑witnesses related to deceased and inimical towards accused Evidence of witnesses full of material contradictions inter se and materially discrepant with their statements before Police and those in committing Court‑Such evidence merits no credit.
S, 45‑Expert evidence‑Opinion of Ballistic Expert has only corroborative value‑Conviction cannot be based solely on such evidence.
Nisar Hussain v. The State P L D 1964 Pesh. 59 and Mir Abbas Hoyat Khan v. Emperor A I R 1937 Pesh. 99 rel.
Sh. Rafiq Ahmad and Mohd. Hanif Niazi on (18‑11‑1968) and Mian Mahmood Ali Qasuri (on 19‑11‑1968) for Appellants.
Rustam Sidhwa for A.‑G. for the State.
Jan Muhammad, his brother Ghulam Muhammad, sons of Khan Beg, their first cousin Khan Muhammad son of Alam Sher and Alain Khan, a sister's son of Khan Muhammad, son of Chiragh, caste Janjua, resident of Shadia, Police Station Musakhel, Tehsil and District Mianwali, were tried by Mr. M. Karam Shah, Sessions Judge, Mianwali, for offences under sections 302/34 and 458/31 of the Pakistan Penal Code, for the murder of Ghulam Muhammad, in furtherence oh their common intention and for having committed lurking hours; trespass into the house of Mst. Mehran P. W. on the night between the 29th and 30th of April 1965, at about sahriwela. The learned trial Judge convicted the four appellants under sections 302/34, P. P. C. and sentenced each of them to transporta tion for life for the murder of Ghulam Muhammad deceased and under sections 458/34, P. P. C. for committing lurking house trespass at night in the house of Mst. Mehran P. W. 1 to four years' R. I. each. Both the sentences were ordered to run concurrently. The four appellants have preferred an appeal against their conviction and sentence. The Public Prosecutor, West Pakistan has filed revision petition for the enhancement of the sentence of appellants to that of death. This revision was admitted on the 14th of March 1967, by a Single Judge and was ordered to be heard alongwith Cr. Appeal No. 558/1965. We will dispose of both the appeal and the revision.
2. On the night between the 29th and the 30th of July 1965, at about sahriwela, the four appellants armed with guns are alleged to have scaled over the outer wall of the house of Mst. Mehran (P. W. 13) and murdered Ghulam Muhammad deceased who was asleep there at the night. Mst. Mehran and Jan Muhammad the cousin of the deceased (P. W. 14), were asleep in the same house. A noise of jumping over the wall awakened the inmates and they saw firing by Ghulam Muhammad accused at Ghulam Muhammad deceased followed by the shots of the other three accused, which hit Ghulam Muhammad deceased. After the commission of the crime the appellants scaled back over the same wall and ran away. Hakim Khan (P. W. 15) and Ghulam Muhammad (P. W. 18) saw the four accused armed with guns passing near the shop of Masita, Sher Muhammad (P. W. 12), father of Ghulam Muhammad deceased was informed of the occurrence and he lodged the report (Exh. P. A.) at Police Station Musakhel. This report was recorded by A. S. I. Abdul Haq, who after giving his statement in the Court of the Committ ing Magistrate, has died and his statement was transferred to the Sessions file. Abdul Haq A. S. I. came to the spot of investigation. He took up bloodstained earth from the spot vide memo. (Exh. P. B). He also recovered four empties of '12/bore (Exh. P. 1/1‑4) and an empty of '303/bore (Exh. P. 2), vide memo. (Exh. P. C). Six card‑board pieces (Exh. P. 3/1‑6) were also recovered from the spot and taken into possession vide memo. (Exh. P. D.). He also recovered a gun (Exh. P. 7) lying close to a wall in the courtyard of the house vide memo. (Exh. P. E). He arrested all the accused on the 1st of August 1965. Alam Khan and Ghulam Muhammad appellants were found injured. He prepared their injury statements (Exh. P. S. and P. M.) and sent them for medical examination. On the 12th of August 1965, Head Constable Muhammad Hussain (P. W. 17) recovered ail unlicensed rifle (Exh. P. 8) with three cartridges (Exh. P. 10/1‑3) from a chhappar at the instance of Ghulam Muhammad appellant vide memo. (Exh. P. N). The Head Constable also recovered an unlicensed '12 bore shotgun (Exh. P. 7) from the house of Jan Muhammad accused at his instance on the 12th of August 1965, vide memo. (Exh. P. O.).
3. Doctor Z. H. Mansoor (P. W. 9), Medical Officer. Isakhel, conducted the post‑mortem examination on the dead body of Ghulam Muhammad deceased and found the following injuries :‑
(1) A gunshot wound of entry, " x ", going into the thoracic cavity, 1 ", to the right of mid line, 2" , below the leval of the nipples.
(2) A gunshot wound of exit, 1" x ", communicating with No. 1, 3" below the left posterior iliac crest 2" to the left of the mid line on the posterior aspect of left buttock.
(3) An abrasion, " x ", on the posterior aspect of left elbow an inch below the tip of the elbow joint. Right wall of thoracic was injured. Right pleura was also injured near the base on its interior aspect. Peritoneum cavity was injured and was full of blood. Right diaphragm was injured. Stomach was punctured through and through and the contents have partially gone out but still two ounces of semi‑digested material was present. Small intestines were injured in multiple places and its mesentry was injured. Liver was injured in its right lobe on its anterior aspect. The bladder contained two ounces of urine.
In his cross‑examination the doctor stated:---
"The injury No. 1 could be caused by a '303 bullet as well as by a single pellet used in a '12 bore gun. The missile had passed in a straight line from above downwards and to the left and had made a hole through the hip bone and made its exit there. I cannot say that the probability is of the rifle bullet causing this injury. A single bullet fired from a ‑12 bore cartridge would not cause an entrance wound, " x ", but a single pellet shot from a '12 bore gun might. I am not talking in this connection of pellets contained in L. G., or S. G., cartridge of '12 bore, but of a single pellet used in a '12 bore gun cartridge. The pellet which seems to have caused this injury would be one with a pointed cone like the bullet head of a bullet used in a pistol.
Ten to fourteen ounces is the normal in take of meal by an adult. I cannot determine how much food would have been left in the stomach of the deceased at the time the infliction of the injury as some of the contents had gone out of the hole and I could not collect them. The stomach becomes completely empty usually in our part of the country in eight hours. It may even empty in 4 to 6 hours if the food used contained some more liquid or is fluid.
Two ounces of urine is a very small quantity in the bladder.
Q.‑Can you deny the fact that two ounces of urine would collect in a healthy man's bladder within two hours of his taking of meals
A.‑I cannot deny the suggestion nor quote any authority in my support that the urine may or may not collect in this quantity in two hours of the taking of meals. It depends upon individual circumstances.
The state in which I found the food in the stomach of the deceased, i.e., the semi‑digested, would be attained in three hours after the taking of the meals. The man has died principally of haemorrhage, his breathing organs and his heart were untouched by the firearm injury. I do not think that the deceased could have lived more than twenty minutes after receiving the injuries. The time that I have given between death and post‑mortem is approximate. It could not be more than 15 hours however. At the moment I cannot point to any circumstance suggesting that the said time could not be more than 15 hours, but at that time it was my considered opinion that it could not be more than 15 hours, although I have not noted anything in that behalf. I cannot point out any single circumstance which led me to believe that 15 hours was the outer limit of the duration between death and post‑mortem examination. Rigor mortis passes out in 24 hours, but some times other factors may lengthen it. Rigor mortis passes out from the extremeties last. I did not note in the present case that the Rigor mortis had begun to pass out or not. I cannot point out any set of circumstances meaning medical data, the appearance of which would pin‑point the duration at 15 hours."
Doctor Muhammad Rafiq, A. M. O. Athara Hazari, District Jhang, examined Alam Khan appellant on the 2nd of August 1964, at 3‑00 p. m. and found the following injury on his person :‑
(1) Two abrasions *" x *", each on the top of the left knee joint, crust was present on the abrasion.
Injury was simple and was caused by blunt weapon.
He also examined Ghulam Muhammad accused on the same day at 3‑15 p. m. and found the following injuries on his person :‑
(1) Two abrasions, " x " and " x " each on the lower and medical part of the right knee joint, crusts were present on the abrasions.
(2) An abrasion, 1" x 1", on the anterior part of the left leg about 4" below the top of the left knee joint. Crust was present on the abrasion.
(3) An abrasion, " x ", on the back of the right thumb in its middle part. Crust was present.
All the injuries were simple and caused by a blunt weapon. The doctor opined that the injuries found on the persons of the accused could be caused by a fall.
4. Sher Muhammad (P. W. 12), father of the deceased, had lodged the F. I. R. (Exh. P. A.) and he gave inter se relations of the accused and the P. Ws. He also enumerated the enmities between him and the accused and with other persons. This witness stated that Jan Muhammad P. W. is his nephew and Mst. Mehran P. W. is a maternal aunt of the deceased. P. W. Ghulam Muhammad son of Zaman was shown to be a maternal nephew of Jiwaya son of Niazi P. W. and also his (Sher Muhammad's) son‑in‑law. He also stated that Jan Muhammad and Ghulam Muhammad accused are real brothers and are sons of Khan Beg and that Khan Muhammad accused is the son of Alam Sher, a cousin of Jan Muhammad and Ghulam Muhammad accused and that Alam Khan accused is the son of a real sister of Khan Muhammad accused. As regards the enmity with the accused party, he stated that Jan Muhammad and Ghulam Muhammad accused had a brother Khan Muhammad who was murdered some 10/11 years prior to the occurrence. His son Ghulam Muhammad deceased his sister's son Muhammad and his nephew Ata Muhammad were charged for that murder. Ata Muhammad was acquitted and Ghulam Muhammad deceased was sentenced to five years' R. I. and Muhammad to seven years' R. I. Mst. Mehran (P. W. 13), widow of Muhammad Zaman, a relative of the deceased, stated that Ghulam Muhammad deceased was the sister's son of her late husband Muhammad. Ghulam Muhammad and Jan Muhammad P. Ws. had come to her house at village Shadia to stay for the night after attending the marriage ceremony of a cousin of Ghulam Muhammad deceased. She, with her children, Ghulam Muhammad deceased and Jan Muhammad P. W. were asleep in the courtyard. They had chained the door of the courtyard from inside. It was moonlit night. At dhamiwela (shortly before dawn) she was awakened on the sound of the accused entering into her courtyard by jumping over the wall. The cattle in the courtyard had frightened and some bricks had also fallen from the wall. Jan Muhammad P. W. and Ghulam Muhammad deceased also woke up. Ghulam Muhammad deceased was about to get up from the charpoy when Ghulam Muhammad accused and his brother Jan Muhammad fired two shots at the deceased. She saw the fire shot by Ghulam Muhammad accused hitting the deceased at the chest but could not say whether the shot fired by Jan Muhammad accused had struck the deceased or not. After the receipt of the injury Ghulam Muhammad fell down. She dragged her children into the kotha. The other two accused, Alam Khan and Khan Muhammad fired in the air. Then all the four accused scaled back over the wall. She came to Ghulam Muhammad and found him dead. Their cries attracted Hakim and Ghulam Muhammad P. Ws. Sometime later Jiwaya P. W. also came to the spot. She stated in cross examination :‑‑
"I stated before the Police that I and Jan Muhammad P. W. and the deceased got up on the falling of the bricks and stempede of the animals. (Confronted with Exh. D. A/1 not mentioned at all) I made my statement before the Committing Magistrate. I may have stated before the C. M. that I was awakened at the stempede of the animals and the falling of bricks. (Confronted with the statement made before the C. M., not so recorded). I do not remember whether I stated before the police or not that Ghulam Muhammad accused fired the first gun fire shot which hit Ghulam Muhammad deceased at the chest and the second one was fired by Jan Muhammad which I did not notice whether it hit Ghulam Muhammad deceased or not. (Confronted; not recorded). I did not state before the police that Ghulam Muhammad deceased had barely got up from his charpai when Jan Muhammad son of Khan Beg fired at him with his gun which hit on his back and the second fire was shot by Ghulam Muhammad which hit Ghulam Muhammad deceased on his chest. (Confronted with portion A to A in Exh. D. A/1, where it is so recorded). I also stated before the Police that Alam Khan and Khan Muhammad accused fired in the air. (Confronted; with Exh. D. A/1, where the firing in the air is not mentioned). It is incorrect that I am introducing these fires in the air in order to explain the absence of any pellets or wads etc., at the spot. I had stated before the police that the four wajtakkar' witnesses I have mentioned today had come shortly after the occurrence and had told me that they had seen the accused running away. (Confronted with Exh. D. A/1, there is no mention of the four witnesses at all to say nothing of their having come to the spot and having told her anything)."
Jan Muhammad (P. W. 14) stated that after attending the marriage ceremony of his cousin Muhammad Sher son of Muhammad, he and his cousin Ghulam Muhammad deceased, after having meals, came to the house of Mst. Mehran to sleep for the night there. He (Ghulam Muhammad deceased) and Mst. Mehran were asleep in the compound of the house. At dhamiwela, the four accused, Ghulam Muhammad, Jan Muhammad, Alam Khan and Khan Beg, scaled over the wall of the house and entered the compound. The cattle standing in the compound were frightened and they were awakened. It was moonlit night. While getting up from the charpai Ghulam Muhammad deceased was fired at by Ghulam Muhammad accused in his chest. Then all the other three accused fired at Ghulam Muhammad with their respective guns. Then all the four accused went back by jumping over the wall and raising slogans that they had avenged themselves of the murder of Khan Muhammad. Ghulam Muhammad and Hakim P. Ws. came to the house after the accused had decamped. Jiwaya and Khuda Yar P. Ws. had also come there. Dost Muhammad P. W. was sent to inform Sher Muhammad, father of the deceased, about the occurrence. In cross‑examination this witness stated :‑
"I made my statement before the Police. I stated therein that the accused had come from the western side of the house I stated so before the C. M., as well. I did not state before the C. M. that the accused had entered from the northern side of the house. (Confronted with his statement made before the C. M., on 16th June 1965; where in cross‑examination it is mentioned that the accused came from the northern side while in examination‑in‑chief it is mentioned that they came from the western side). * * * * * * * * * I did not state before the Police that after being free from the service at the house of marriage at evening time I and Ghulam Muhammad deceased came to the house of his aunt Mst. Mehran and went to sleep for the night. (Confronted with portion B to B in Exh. D. B., where it is so recorded). We had taken our evening meals at the house of marriage (mangni). I stated before the Police that I and the others were awakened at the frightening of the animals and the falling of the bricks. (Confronted with Exh. D. B. not recorded). I stated before the police that Ghulam Muhammad accused fired first short at the chest of Ghulam Muhammad deceased who fell down and then all the remaining accused fired at him (deceased). (Confronted with Exh. D. B., where it is not recorded. I did not state before the Police that Ghulam Muhammad deceased had barely got up from the charpai when he was fired at by Jan Muhammad accused, which hit on his back and that the second fire was made by Ghulam Muhammad accused, which hit the deceased on his chest and simultaneously Alam Khan and Khan Muhammad accused fired at the deceased. (Confronted with portion C to C in Exh. D. B., where it is so recorded)."
Hakim Khan (P. W. 15) and Ghulam Muhammad (P. W. 18) son of Zaman, both deposed that they saw the four accused, namely, Ghulam Muhammad, Jan Muhammad, Alain Khan and Khan Muhammad armed with guns while going away towards the east, after the occurrence. The sister of Hakim Khan, namely, Mst. Sahiban, is the widow of Ghulam Muhammad deceased. Ghulam Muhammad (P. W. 18) was challaned in a murder case. He was sentenced to death in that case but was acquitted in appeal. Janan and Alam Khan accused had appeared as prosecu tion witnesses against him in that case. Alam Khan accused appeared as a P. W. against this witness in the murders of Sarfraz and Sultan. Alam Khan and Janan accused had also appeared as P. Ws. in the murder case of one Muhammad in which this P. W. and his brothers were charged. As stated above, Abdul Haq. A. S. I., who had investigated the case, had died and his statement dated the 26th of August 1965, before the Committing Magistrate, was transferred to the file of Sessions Court.
5. Jan Muhammad accused denied the charge levelled against him and the recovery of gun (Exh. P. 7) and three cartridges (Exhs. P. 9/1‑3) from his house. He admitted the enmity between them and the deceased party and stated that he had been falsely implicated on account of this enmity. Ghulam Muhammad accused also denied the charge. He stated that he had sustained the injuries some days prior to the occurrence while doing his zamindara work. He stated that he was falsely charged on account of enmity. Khan Muhammad accused also denied the charge. Alam Khan accused also denied the charge and stated that he sustained the injuries while doing zamindara work and that he had been falsely implicated on account of enmity. No evidence was produced in defence by the appellants.
6. The learned counsel for the appellants contended that P. Ws. Jan Muhammad and Mst. Mehran were close relations of the deceased and had blood‑fued with the appellants, that their evidence is contradictory to each other and discrepant in material particulars with their statements before the police; and hence the evidence of both these witnesses merits no credit. He further argued that it is in evidence of P. W. Jan Muhammad that they had come to the house of Mst. Mehran to sleep for the night there after taking evening meals at the house of their cousin where they attended the marriage (Mangni) ceremony. Thus, the deceased had taken his meals at about evening time, that the medical evidence shows that only two ounces semi digested material was present in the stomach of the deceased. The doctor also stated that the stomach becomes completely empty usually in eight hours. By this argument the learned counsel wanted to show that the deceased was killed somewhere at midnight and not at dhamiwela when the inmates of the house were either asleep or were not present and further that the two P. Ws. had not seen the culprits but have charged the appellants on account of previous enmity.
7. A close scrutiny of the evidence of Mst. Mehran and, Jan Muhammad, as given in detail above, reveals that it is full of material contradictions inter se and their evidence in Court is materially discrepant with their police statements and the statements before the Committing Magistrate. On account of these material contradictions and discrepancies their evidence merits no credit, particularly when these two witnesses are related to the deceased and have animosity with the appellants. The presence of semi‑digested food in the stomach of the deceased Ghulam Muhammad also materially hits the prosecution case on the point that the occurrence took place at dhamiwela. It appears that the occurrence took place sometime before the midnight when the moon had not risen. The evidence of Mr. Khurshid Alam (P. W. 16), the Ballistic Expert, is that his examination revealed that the crime‑shall marked C‑2 was found to be fired from ' 12/bore SBBL No. 1919 (Exh. P. 7) recovered from the house of Jan Muhammad accused. This evidence will not improve the prosecution case. There is no evidence to the effect that Jan Muhammad accused had used this gun (Exh. P. 7) in the commission of the crime. The opinion of the Ballistic Expert has only a corroborative value and a conviction cannot be based 'y solely on the basis of such evidence. I am fortified in this vie by Nisar Hussain v. The State (P L D 1964 Pesh. 59) wherein it has been held at page 66, "that the evidence of a Ballistic Expert has a corroborative value, which alone cannot be made a basis of conviction". A division Bench of the Court of Judicial Commissioner in Mir Abbas Hayat Khan v. Emperor (A I R 1937 Pesh. 99) considered the evidentiary value of the Ballistic Expert. Their Lordships observed:‑
"The opinion of the expert has a corroborative value only and is useful for ascertaining whether the direct evidence is true or not. We consider it absolutely unsafe to base a conviction on that evidence in the case; for it can never be said with certainty that the weapon with which the crime is said by the expert to have been committed, though found in possession of the accused person, was in his possession when the offence was committed."
Alam Khan accused was found to have two abrasions on the top of his left knee, while Ghulam Muhammad accused was found to have an abrasion in the right knee‑joint, one abrasion on the anterior part of left leg and another abrasion on the back of right thumb in its middle part. Both these accused explained that they suffered these injures in their zamindara work. The prosecution presumes that these two appellants suffered these injuries while scaling the wall of the house of Mst. Mehran. There is no evidence to the effect that these two appellants sustained the injuries during the commission of the crime. In the absence of direct evidence against these two appellants; the presence of these injuries on their persons by way of corroboration would also not help the prosecution case.
8. The evidence of Hakim Khan (P. W. 15) and Ghulam Muhammad (P. W. 18) son of Zaman is not worth any reliance. P. W. Hakim Khan's sister, Mst. Sahiban, is the widow of the deceased while Alam Khan and Jan Muhammad accused had appeared as prosecution witnesses against Ghulam Muhammad P. W. in at least two murder cases. Moreover, Mst. Mehran (P. W. 13), in her police statement (Copy Exh. D. A/ 1), has not mentioned at all that these two witnesses had come to the spot and told her to have seen the four accused decamping.
9. From the overall consideration of the prosecution case, we hold that the prosecution has not proved the guilt of the four appellants beyond reasonable doubt. Giving them the benefit of doubt, we accept their appeal and acquit them.
10. In view of this judgment, the revision for enhancement is dismissed.
Appeal accepted.
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