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Criminal Appeal No. 277 of 1972, decided on 18th November 1974.
‑‑‑ Evidence‑Witnesses deposing on premises of false motive --Evidence of such witnesses, held, calls for close scrutiny. [Evidence].
Habibullah's case P L D 1969 S C 127 ref.
‑‑‑‑‑ S. 304, Part II read with S. 34‑‑‑Prosecution failing to establish, motive for crime‑Evidence of eye‑witnesses not corroborated from any independent source‑Deceased going to house of accused to prosecute his intrigue with accused's sister on being questioned about his conduct attacking accused with knife‑Accused in exercise of right of private defence causing number of injuries to deceased‑‑Accused given benefit of doubt and acquitted. [Motive‑Evidence‑‑‑Private defence, right of‑Benefit of doubt].
Evidence‑-Admission made by accused about occurrence‑To t: acted upon in entirety unless any part thereof can be safely belied by prosecution evidence.‑[Evidence].
Sadiq v. The State P L D 1972 Lah. 596 ref.
--‑ Evidence-‑Corroboration‑Piece of weak evidence itself requiring corroboration‑‑Held cannot be used as corroboration of another similar piece of weak evidence.‑[ Evidence].
Wazir's case P L D 1960 Kar. 674 ref.
Appellant through Jail.
Rashid Aziz Khan for A. G. for the State.
Date of hearing: 5th November 1974.
Ghulam Muhammad and his brother Muhammad Shall were convicted under section 304 (II) read with section 34 of the Pakistan Penal Code on the 22nd of December 1971 by then learned 'Sessions Judge, Jhang who sentenced each of them to rigorous imprisonment for seven years, They have submitted separate appeals through Jail (Crl. Appeals No. 277 and 278 of 1975) questioning the correctness of this order while Khawaja P. W. the complainant has preferred a petition under section 439, Cr. P. C. (Cr. Revision No. 129 of 1972) to challenge their acquittal of the offence under section 302/34, P. P. C. and the three matters are being disposed of by this judgment.
2. The occurrence involving the murder of Zulfiqar (deceased) took place on 26th of July 1974 at digerwala in village Khina as reported at Police Station Sadar Jhang at 8‑30 p. m., the same evening, by his uncle Khawaja (P. W. 9) vide Exh. P. A.
3. It was alleged that a donkey of Ghulam Muhammad appellant had strayed into the cotton field of Moosa (P. W. 3) on the eventful evening which was caught hold of by his son Faiz (P. W. 8) and before he could take it to his well Ghulam Muhammad appellant intercepting him abused Faiz P. W. and slapped him as well. The latter raised hue and cry over is which attracted his brother Zulfiqar (deceased) and his uncle Khawaja (P. W. 9) to the spot, who were weeding out grass from their crop nearby. They took exception to the conduct of Ghulam Muhammad appellant and abused him also about it. Ghulam Muhammad appellant retaliating these: abuses rushed to his house and re-informed by his brother Muhammad Shaft appellant returned immediately for a show down with them. Ghulam Muhammad appellant had brought a phawara while Shall carried a dang and remonstrating with them Ghulam Muhammad appellant planted a phawara blow on the shoulder oh Zulfiqar (deceased) followed by two dang blows on his head by Muhammad Shafi appellant which dropped him to the ground. Zulfiqar had a ramba in his hand with which he tried to ward of Vie blow given by Ghulam Muhammad, but it bit the hand of the latter, Zahoor Ahmad (P. W. 11) and Muhammad (P. W. 12) are said to have witnessed this occurrence.
4. Zulfiqar was removed to the local dispensary when Shamas‑ud‑Din Dispenser provided first‑aid to trim bat he succumbed to these injuries a short while later. He was thereafter brought back to the spot and leaving his dead body under the care of his brother Moosa and Bahadur Chaukidar P. Ws. Khawaja (P. W. 9) went to she police station when he lodged this report.
5. Sub‑Inspector Muhammad Khan (P. W. 13) after registering this case came to the place of occurrence and despatched the dead body to the mortuary along with she injury statement (Exh. P. M.) and his inquest report (Exh. P. N.). He thereafter secured from there the blood‑stained earth and sealed it into a parcel vide Exh. P. B. and recorded the statements of the eye‑witnesses.
6. On the next day he arrested the two appellants. Ghulam Muhammad appellant while to custody is said to have led to the recovery of phawara (P. 1) which was made into a sealed parcel vide; Exh. P. C. white, Muhammad Shafi appellant produced dang (P. 2) vide Exh. P. D. The kurta (P. 3) worn by the latter being blood‑stained was also taken into possession vide Exh. P. E.
Foot Constable Riaz Hussain (P. W. 4) brought back from the mortuary the chaddar (P. 4) and handed it over to the Sub‑Inspector vide Eah. P. F.
Zafar Hussain Patwari (P. W. 2) prepared the site plan (Exh. P. L.) with its duplicate (Exh. P. L/1 and P. L./2) which bear the red notes of the Sub‑Inspector under his signatures.
Ghulam Muhammad appellant was found injured at the time of his arrest and was, sent for medical examination vide injury statement (Exh. P. O.).
7. On 27th July 1970, at 10‑30 a. m., Dr. Muhammad Sated Ahmad (P. W. 1) hold autopsy on the dead body of Zulfiqar and found the following injuries vide Exh. P. H:‑
(1) A lacerated wound 1'x 1 ' x ' into bone deep on the back of the head on‑the right side.
(2) A lacerated wound 2' x ' x bone deep on the right side of the head above the right ear in front of injury No. 1.
(3) A contusion mark 2' x 1 ' on the back of the right chest in the upper part.
(4) An abrasion ' x ' on route of the nose.
(5) A brasion ' x ' on the forehead in the midline ' above injury No. 4.
On opening the cranium haematoma 3' x 21' was found present below scalp corresponding to injury No. 2. Right temporal and right parietal bones were fractured under injury No. 2. Membranes and brain matter was congested. Portion of the brain under haematoma was compressed. Death in his opinion was due to injury No. 2 to the brain, which was sufficient to cause death in the ordinary course of nature. The time elapsed between injury and death was about 1 to 2 hours and the post‑mortem was performed about 18 hours later.
On the same day the same doctor examined Ghulam Muhammad son of Muhammad Ramzan and found the following injuries on his person:‑
(1) An incised wound 1 ' x ' skin deep on the back of right hand about distal to the wrist joint.
(2) An abraded contused area 2' x 1' on the back of right chest in the upper part.
Both the injuries were simple and had been caused by sharp‑edged weapon.
8. In the addition to the above detailed medical evidence and that of recoveries the prosecution had relied for its case on the testimony of Faiz (P. W. 8). Khawaja (P. W. 9), Zahoor Ahmad (P. W. 11) and Muhammad (P. W. 12) for the ocular account of this occurrence, who had lent support to the above narration.
9. Ghulam Muhammad appellant denying all these allegations set up a plea of grave and sudden provocation as also of private defence in the following terms:‑
"On the 26‑7‑1970 Bakhsa son of Rehman, who was related to me breathed his last. 1, Muhammad Shafi and my parents joined his funeral prayers. After the funeral prayers .I brought fodder to my house. When I reached my house Zulfiqar (deceased) came out of our house running. My sister Mst. Noor Bakhat also came out of the house. I enquired from Zulfiqar as to what was the matter. Zulfiqar pulled out a knife and caused me injury on the back of my right hand. I was in possession of a sota. I gave him a sota blow on his head. The knife held by Zulfiqar fell down. Zulfiqar caught hold of a danda meant for washing clothes lying near the band pump and ran after me. He gave me two or three danda blows in the back of my chest. I gave another sots blow to him in order to save my life. After suffering the sota blows Zulfiqar full down. His relatives came and took him away."
He examined Inspector Nazir Ahmad (D. W. 1) and Mst. Bakht Bhati in his defence.
Muhammad Shafi appellant averred that he was falsely implicated in this case and refuting the recoveries at his instance urged that the dang (P. 2) and Kurta (P. 3) were planted on him.
10. Learned trial Judge disbelieved all the recoveries, but accepting the direct evidence supplied by the above‑named witnesses held them guilty of the offence under section 304 (II), P. P. C. only, which finding has been assailed before me as erroneous and ill‑conceived due to the absence of any credible evidence in the case and on being taken throughout the record I am inclined to agree with these contentions as not only the recoveries of the alleged incriminating articles had been demolished, but the entire investigation had failed to inspire confidence so much so that the Public Prosecutor had also cross‑examined the Investigating Officer in this case which had lent grave doubts to the prosecution case.
11. It was urged that in support of the defence plea Sub‑Inspector Muhammad Khan was shown blood‑stained earth inside the courtyard of the house of the appellant, but it was not secured at all nor was any investigation held on that line and Ramzan, their father, had to make representation to the higher authorities as a result of which Inspector Nasir Ahmad (D. W. 1) was specially deputed to inspect the spot and record their evidence about it. He had, m fact, recovered some blood stained earth from inside their house which was lying covered there and was taken into possession vide Exh. D. E. He had also recorded the statement of Mst. Bakht Bhati, their sister, in support of the defence version put forth by them. Sub‑Inspector Muhammad Khan in his statement as (P W. 13) had also admitted the presence of blood in the haveli of Ghulam Muhammad appellant which indicated that the plea set up by them was not an afterthought and I have confirmed it from the police file also as it was sponsored by Ramzan, the father of the appellants, from the very outset.
12. It was also conceded by the Sub‑Inspector that Muhammad Fazil, Chairman, Union Council was present when blood‑stained kurto (P. 3) was got removed from the person of Muhammad Shafi appellant, but it was strange that he was not asked to attest the relevant memo.
13. The contention of the defence was that Ghulam Muhammad son of Noor bhawana was at the back of the complainant party and it was under his influence that the scales were turned against the appellants and first information report was drawn out at the spot after prolonged deliberations. This suggestion confused the Sub‑Inspector so much that he denied out right even his presence on his arrival at the spot although the inquest report (Exh. P. N.) was signed by him.
14. He had shown extra keenness for the prosecution as he went against his record to strengthen their case. He stated that he had seen some broken plants in the damaged cotton field although the site plan (Exh. P. L.) was silent about it and when confronted with it be added that be had mentioned this fact in his inspection note. He was, therefore, asked to refresh his memory but on consulting the relevant case diary he also found it silent about it. Khawaja (P. W. 9) had, however, disclosed that they had not shown any damaged portion of the cotton crop to the Sub‑Inspector and in spite of it he had gone out of the way to support their case.
15. As a motive for this deadly assault the damage of the cotton crop by the donkey of Ghulam Muhammad appellant was introduced, but it was strange that no donkey was produced in Court although the Sub -Inspector had claimed to have taken one into his possession from the house of Ghulam Muhammad appellant which omission) spoke volumes about it coupled with' the silence of the site plan (Exh. P. L.) about it, especially when he had not even seen any hoof marks in that field. This went at long way to show that a false motive had been fabricated to strengthen the prosecution case, and the evidence of the witnesses who had deposed on the premises of this false motive would call for a close scrutiny as observed in Habibullah's case (P L D 1969 S C 127).
16. From among the eye‑witnesses Faiz (P. W. 8) is the younger brother and Khawaja (P. W. 9), the uncle of Zulfiqar (deceased) who were certainly interested in prosecution of their ease but their evidence could not be discarded merely on account of their close relationship. They bad, however, insisted on the alleged trespass of the donkey of Ghulam Muhammad appellant as the incident preceding the alleged assault on Zulfiqar (deceased), but as discussed above the prosecution had miserably failed to establish it. We, therefore, cannot place any implicit reliance on their testimony without any corroboration from some independent source. The learned trial Judge had found it in the testimony of Zahoor Ahmad (P. W. 11) and Muhammad (P. W. 12), but they had made such a clumsy departure from their earlier statements recorded under sections 161 and 164, Cr. P. C. as also that made before the Committing Magistrate that they were not found worthy of any credence. According to their statements under section 164, Cr. P. C. they were returning from Darbar Mahmood Shah when they heard the outcries of Zulfiqar and on rushing to that direction found him lying injured with Ghulam Muhammad and Muhammad Shafi appellants present near him the former having a phawara and the latter a dang with which they gave a blow each to Zulfiqar and on their lalkara they made good their escape. This version was inconsistent with the initial prosecution case as given in the first information report (Exh. P. A.) and in order to bring their evidence in accord with the same each of theca bad swallowed every word of this statement in their zeal to support Faiz and Khawaja P. Ws. There was no mention of the outcries of Faiz P. W. or the presence of Khawaja or that of the donkey of Ghulam Muhammad appellant in their statements under section 164, Cr. P. C. but they introduced both these factors in order to bring their statements in line with the prosecution and it will be futile to categories the resultant discrepancies and contradictions. They had towed the same line as adopted by the other witnesses in supporting the donkey affair which had tainted their evidence in the same way as that of Faiz and Khawaja P. Ws. They had done so with no other object than to strengthen the fabricated motive so their evidence suffered from the same infirmity as that of Faiz and Khawajer P. Ws. The law does not accept any such corroboration as one piece of weak evidence, itself requiring corroboration cannot be used as corroboration of another similar piece of weak evidence. Reliance is placed on Wazir's case (P L D 1960 Kar. 674). 1 have, therefore, to exclude it from consideration and Mr. Sial, learned counsel for the complainant, frankly agreed with me in this conclusion.
17. It will not be out of place to mention here that Khawaja P. W. was also one of the witnesses of the alleged incriminating recoveries which the learned trial Judge had not accepted. Both be and Faiz P. Ws. had failed to explain the abraded contused area 2' x 1' found on the back of the right chest of Ghulam Muhammad appellant. Even the incised injury of his hand was not satisfactorily explained by any of them. Zulfiqar (deceased) could not have warded of the blow of a phawara by a ramba as alleged by them and it could not have caused any injury to Ghulam Muhammad appellant when used in that fashion. This ramba had, however, not seen the light of the day like the bundle of grass weeded out with it from the cotton field. They had even tried to exaggerate the injuries suffered by Zulfiqar (deceased) as the injuries on the tip of his nose or the forehead were never mentioned in the first information report which were apparently the result of his fall on the ground on receipt of the earlier injuries. In view of these crude improvements all the four alleged eye‑witnesses deserved no credence. I have, therefore, to reject their testimony.
18. With the elimination of the prosecution evidence I am then left with the admission made by Ghulam Muhammad accused about this occurrence, which if to be acted upon has to be taken into consideration fn entirety and not in piecemeal unless any part of it can be safely belied by the prosecution evidence as held in Sadiq v. The State (P L D 1972 Lah. 596).
19. According to the statement of Ghulam Muhammad appellant Zulfiqar (deceased) had come to his house to his absence and on seeing him return tried to run away and when Ghulam Muhammad appellant confronted him about it Zulfiqar (deceased) pulled out a knife and caused him an injury ion the back of his right hand and Ghulam Muhammad appellant gave a sofa blow on his head in self‑defence; that as a result of this blow the knife fell down from the hand of Zulfiqar but he picked up a danda from there and again attacked the appellant causing two injuries at his back and in retaliation received another danda blow at the hands of the appellants which felled him to the ground.
19. The version put forth by him is corroborated by the presence of injuries on his person, the recovery of blood‑stained earth from his courtyard, and the statement of Mst. Bakht Bhati (D. W. 2) which could not be brushed aside as an afterthought as Sub‑Inspector Muhammad Khan (P. W. 13) had admitted that he had seen this blood in the courtyard of Ghulam Muhammad appellant on the very first day. In fact Inspector Nasir Ahmad had also admitted it as (D. W. 1) adding that a reinvestiga tion was ordered by the Senior Superintendent of Police on the representa tion made by Ramzan, the father of the appellants. In order to verify this concession made by the Inspector I scanned through the police file and found that said Ramzan had sponsored this version from the very outset which was confirmed by Mst. Bakht Bhati (D. W. 2) disclosing the clandestine visits of Zulfiqar at her house. Unless it bad actually happened and scandal just to set up a plea in defence SO DO part of the statement of Ghulam Muhammad appellant could be rejected as false.
21. The question that would arise for determination is it any offence is made out against him from this admission and the answer will certainly be in the negative.
22. Although Zulfiqar (deceased) had gone to the house of the appellants with the consent of his sister to prosecute his intrigue with her he had a right to question him about it but in reply Zulfiqar (deceased) seems to have attacked him with a knife entitling Ghulam Muhammad appellant to a right of private defence against this attack. He cannot be said to have exceeded this right as he had caused almost the same number of injuries to Zulfiqar (deceased) as suffered by him at his hands. Giving the benefit of all these doubts to him I have to accept his appeal.
23. Muhammad Shafi appellant had made no such admission as he had contented himself with a bare denial and with elimination of the prosecution evidence against him he deserved a clean acquittal in the case. The convictions and sentences of both the appellants are accordingly set aside.
24. As a result the revision petition (Criminal Revision No. 129 of 1972) filed by the complainant fails and it is dismissed accordingly.
25. The appellants are in jail and shall be set at liberty forthwith if not required in any other case.
Appeal accepted.
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