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Criminal Appeal No. 278 of 1985, Murder Reference No. 205 of 1983, heard on 18th November, 1983.

----S. 302/307/34‑Case of two versions‑Court should discuss prosecution case more particularly eye‑witnesses first in order to come to an independent finding on truth or falsity of prosecution case and credibility of eye‑witnesses and it should then examine statements of accused and their version and should criticise them in light of circumstances brought on record if necessary.

‑‑ S. 302/307/34‑Appreciation of evidence‑Ample oral as well as documentary evidence existing on record to show that not only all eye‑witnesses were interested and partisan but also local police had a motive to falsely involve accused persons in case‑All eye‑witnesses admittedly belonging to one party and accused persons belonging to their opposite party in village‑Enmity between both parties admittedly starting with litigation between them and eye‑witnesses had disliking for accused Persons because of enmity ‑ Rule of prudence, held, required independent corroboration of statements of eye‑witnesses qua each accused.

--S.302/307/34‑Motive‑Prosecution examining two witnesses who were also eye‑witnesses of occurrence to prove motive‑Evi dence of such witnesses regarding motive, held could not corroborate ocular account of occurrence given by themselves-Corroboration must come from a distinct source-Independent persons though were present at time of motive incident yet prosecution not caring to product them Motive disbelieved in circumstances.

_______S. 302 307 34 Defence version ____ Defence witnesses who were also injured during incident supporting defence version ____ Inspector police, another defence witness deposing about his obtaining of non bailable warrants for arrest of a person who according to defence version had alone fired shots during occurrence and about getting such person declared a proclaimed offender ____ injuries found on person of one accused having not been satisfactorily explained by prosecution ____Defence version found to be reasonably possible in circumstances

_______S. 302 307 34 Acquittal Eye witnesses interested and partisan Local Police having motive to falsely involve accused Motive version disbelieved Incriminating recoveries from accused having not been believed and acted upon by trial Court for good reasons after examining prosecution case its evidence circumstances brought on record statements made by accused and defence version in juxta position High Court finding reasonable possibility of defence version being true Prosecution thus failed to prove its case beyond reasonable doubt No satisfactory basis present to uphold conviction and sentence of accused- Accused given benefit of doubt and acquitted

Mian Aftab Farrukh and Amjad Ahad Shaikh for Appellants.

Sh. Naseer-ud-Din Ahmad for the State.

Date of hearing 19^th November,1983.

. This Criminal Appeal No. 278 of 1983 connected Murder Reference No. 205 of 1983 and Criminal Revision No. 14 of 1984 by Abdur Rehman for the enhancement of the sentence of Irshad Ahmad and against the acquittal of Muhammad Iqbal and Sahiwal whereby he on 22-11-1983 while acquitting Muhammad Sharif and Muhammad Iqbal of the charge convicted Taj Din and Irshad Ahmad appellants under section 302/34 P.P.C. for causing the death of Ghulam Sabir and murderous assault on Mst. Jameela P.W. and sentenced them as under:-

< [if supportLists]>(i) Taj Din appellant to death and a fine of Rs.10,000 in default thereof three years R.I.

< [if supportLists]>(ii) Irshad Ahmad appellant to imprisonment for life and a fine of Rs 1,000 in default thereof three years,R.I. They were also directed to pay Rs 5,000each as compensation to the legal heirs of the deceased. In default whereof six months R.I. each

(2) Under Section 307 P.P.C. Taj Din and Irshad Ahmad appellants to three years R.I. and a fine of Rs5,000 in default thereof one year R.I. they were directed to pay Rs 2.,000 each as compensation to Mst. Jameela P.W. 12, in default whereof three months R.I.

2. The occurrence took place on 13-4-1982 at Degarwela on a road in the area of Chak No, 143‑N. L. of Police Station Dera Rahim. The distance between the place of occurrence and the Police Station is four miles.

3. The F. I. R. Exh. P. G. was lodged by Abdur Rehman P. W. 10 father of the deceased on the same day at 9 p. in. and was recorded by Muhammad Nawaz A. S. I. P. W. 14.

4. The motive alleged by the prosecution, was that on the eventful day at 3 r. m. Abdur Rehman P. W. 10. Mushtaq Ahmad P. W. 11. Muhammad Ryas (not produced), Abdur Razzaq (not produced) alongwith Girdawar and Patwari of the Halqa had gone to the field for demarcating Kacha Road in squares Nos. 36 and 38 where hot words were exchanged the appellants and the complainant party. The complainant party being more in a member caused injuries with sticks and Dangs to the accused party. Because of this incident and old litigation between the parties, this occurrence.

5. As for the main occurrence, it has been stated that at the eventful time Abdur Rehman P. W. 10, Ghulam Sabir deceased, Mushtaq Ahmad P. W. 11, Muhammad Ilyas and Abdur Razzaq (both not produced) were proceeding to their houses on Tractor Trolly being driven by Abdur Rehman complainant. When they reached near the house of Muhammad Sharif acquitted accused and were on the metalled road then Iqbal acquitted accused who was on the roof of the house of Muhammad Sbarif raised Lalkara to the effect that Abdur Rehman and other should not escape alive. On this. Irshad Ahmad appellant who was also present on the roof fired shot which did not bit anyone. Ghulam Sabir deceased and the P. Ws. jum ped down from the trolly. Taj Din fired shot hitting the deceased in his abdomen and on his right arm. Irshad Ahmad fired shot which hit Ghu lam Sabir deceased on his thigh. Ghulam Sabir fell down. Irshad Ahmad then fired at Mst. Jameela P. W. 12 hitting on her right calf. It has been stated in the F. I. R. that the complainant party had also buried brick bats on the appellants in its self‑defence. The appellants and the acquitted accused ran away taking weapons with them. Ghulam Sabir and Mst. Jameela were removed to hospital for medical aid. When they reached near Bangla Nai Wala Ghulam Sabir expired there. The dead body, was therefore, brought back to the house.‑

6. On 14‑4‑1982 at 10‑30 a. m. Doctor Muhammad Daood Ahmad conducted post‑mortem examination on the dead body of Ghulam Sabir. He found following injuries on his person :‑

(1) A fire‑arm wound rounded in shape x X deep going in front middle right upper arrn underneath there is a fracture of Humerous bone.

(2) Fire‑arm rounded wound x c. m. x deep going 1 c. m. left to umblicus.

(3) Fire‑arm rounded wound c. m. x c. m. x.' deep going 2 c. m. above and right to umblicus.

(4) Fire‑arm rounded wound 3/4 x 3/4 c. m. x deep going 8 c. m. right and lower to umblicus.

(5) Fire‑arm rounded wound 3/4 c. m. x c. m. x deep going in left iliac region. 14 c. m. left and lower to umblicus.

(6) Fire‑arm rounded wound 3/4 x 3/4 c. m. x deep going on inner upper part of left thigh.

(7) Fire‑arm rounded wound 3/4 x 3/4 c.m. x deep going in front upper part of left thigh.

(8) Fire‑arm rounded wound 3/4 x 3/4 c.m. x deep going in front middle right thigh with bone underneath fractured..

On dissection the abdominal wall was found injured against injuries Nos. 2 to 5. Peritoneum was injured against injuries Nos. 2 to 5. The peritoneal cavity had got blood in it. The stomach was containing four ounces of digested food and jures.

A In his opinion the death was due to haemorrhage and shock caused by injuries Nos. 1, 2, 4, 5 and 8 inflicted by fire‑arm which were sufficient to cause death in the ordinary course of nature. The probable time between the injuries and the death was within about 30 to 45 minutes and between the death and the post‑mortem was within 20 to 24 hours.

The Doctor had also examined Noor Muhammad D. W. 3 on 16‑4‑1982 at R‑10 p. m. He found following injuries on his person.

(1) A scabbed abrasion 1 c.m. x c.m. with swelling 10 c.m. x 7 c.m. on outer lower part of left forearm.

(2) A black contusion 4 c.m. x 2 c.m. on top of left shoulder.

(3) Complained pain on top of right shoulder.

These simple injuries were caused with blunt weapons within 3 to 4 days of the examination.

On 13‑4‑1982 Doctor Zubeda Khatoon, P. W. 1 had examined Ms:. Jamila P. W. 12. She found following injuries on her person :‑

(1) A gunshot lacerated wound 1 c.m. X I c.m. with upper part of the right leg. ,

(2) Another exit wound c.m. x c.m. on the back of the right leg, Margin of the first wound is blackish in colour.

The injury No. 1 was greivous in nature which was caused by gun shot within six hours of the examination,.

On 15‑4‑1982 Dr. Riaz Ahmad P. W. 2, examined Irshad Ahmad appellant. He found following injuries on his person ‑‑

(1) Incised wound 3 x 1 c.m. x bone deep outer lower right of forearm.

(2) Scabbed abrasion 3 x 1 c m. top of left shoulder.

(3) Contusion 4x2 c.m. left scapula region.

The injuries were Pimple in nature. Injury No‑ 1 was caused by sharp edged and the rest with blunt' weapon. On the same day he examined Taj Din D. W. 2. and found one incised wound, three contusions, three swelling and one abrasion on his person. All the injuries were simple in nature. One injury was caused by sharp‑edged weapon and the rest with blunt weapon within the duration of a8 to 72 hours.

7. On 13‑4‑1982 Muhammad Nawaz, A. S. 1 P. W. 14 took into possession crime empties P. 7 and P..8 from the roof of the Kotha of Muhammad Sharif vide memo. P. N. attested by Muhammad Rashid P. W. 13 and Abdur Razzaq (not produced). He also took into possession crime empty P. 9 from the same place vide memo. P. O‑ attested by the same witness.

8. The appellants ere arrested on 18-4-1982 by Muzaffar Rashid S.H.O.P.W. 15. On 21-4-1982 Irshad Ahmad got recovered gun P.5 from a room of tube-well which was taken into possession vide memo. P.J. attested by Muhammad Rashid P.W. 13 and Rehmat Ullah (not produced) On the same day Taj Din Got recovered gun P.6 from his cattle shed, which was taken into possession, vide memo P.K. attested by the same a witness. The Forensic Science Laboratory Report Exh. P.U. reveals that two empties were fired from the gun of Irshad Ahmad while the third was fired from the gun recovered from Taj Din Ahmad appellant it may be noted that the recoveries have been disbelieved in para No. 20 of the judgment of the trial Court.

9. To prove its case prosecution examined 15 witness Abudr Rehman P.W. 10 Mushtaq Ahmad P.W. 11 and Mst. Jamila P.W. 12 have given the ocular account of the occurrence. They supported the prosecution case as stated above they claim to have seen the appellants and the acquitted accused at the spot and the appellants firing shots resulting in the death of Ghulam Sabir and injury to Mst. Jamila P,W12 Doctor Muhammad Daood Ahmad P.W. 3 has proved the post mortem report. Dr. Zubeda Khatoon P.,W. 2 has proved the Medical Legal Reports relating to Irshad Ahmad and Taj Din appellants. Muhammad Rashid P.W. 13 Muhammad Nawaz A.S.I.P.W. 14 and Muzaffar Rashid S.H.O.P.W. 15 have deposed about the recoveries of the crime empties from the spot and the recovery of the guns P.5 and P.6 from the appellants. The rest of the evidence is of formal; nature.

10. When examined under section 342 Cr.P.C. the appellants denied all the incriminating circumstances. In reply to the question as to why he was involved Irshad Ahmad appellant started.

I have been falsely involve in this case. All the P.W.s are related inter and with the deceased and they belong to one party. The complainant party were siding with Safdar Ali alias Sabba who had abducted Mst. Surraya daughter of Bir Din of our village. Bir Din got registered a case under sections 10 and 11 of Offence of Zina (Enforcement ) of Hudood Ordinance, 1979 against Safdar alias Sabbva his sister Mst. Meenan and one Munir Son of Tufail in which I and Taj Din were prosecution withnesses. Mst. Surayya made statement against Safdar alias Sabba and Abdur Rehman complainant of this case that Abdur Rehman complainant of this case had been committing rape with her. There has been criminal litigation between us and the complainant party. the local police and the District Police were inimical towards us because writ petitions had been filed in the Honble Court Multan Bench against the S.P. Sahiwal Muzaffar Rashid S.H.O. P.S. Dera Rahim and the Circle Inspector of P.S Dera Rahim and we had been pursuing these matters against them. I was also a witness in the contempt of Court applications against Muzaffar Rashid S.H.O P.S. Dera Rahim which was instituted by Bir Dion father of Mst. Surraya in the court of Malik Mushtaq Ahmad the then A.S.I. Sahiwal I Taj Din Muhammad Iqbal and Muhammad Riaz Inspector Crime Branch Police Lahore. In fact I was assaulted and injured by Ghulam Sabir deceased his companions Safdar alias Sabba and two others with Dangs and spear. Nur Muhammad and Taj Din sons of Muhammad Bakhsh caste Arain residents of our village came to my rescue they were also assaulted and injured by the deceased and his companion Bashir Ahmad son of Ghulam Muhammad case Arain an EX-army man resident of his village had fired tow shots in the air in order to scare away Ghulam Sabir deceased and his companions but when was certain that we should be done to death by Ghulam Sabir and his companions he fired an effective shot which hit the deceased and a pellet also hit Mst., Jamila who was per chance passing that way. Muhammad Riazs Inspector Crimes Branch Lahore who investigated this case under the order of the Inspector General of police Punjab Lahore a found aforesaid Bashir Ahmad Ex-army man responsible for this occurrence. He obtained non bailable warrant for his arrest because he was absconding and also got proclamation under section 87/88 Cr.P.C. against Bashir Ex-army man and declared a p[proclaimed offender in this cases.

Taj Din also raised plea of false implication on account of enmity in defence three witnesses were produced Muhammad Riaz Inspector Police D.W.I stated that during the investigation Taj Din D.W. 2 and Noor Muhammad D.W. 3 supported the version of the occurrence as given by Irshad Ahmad appellant.

< [if supportLists]>11. The learned counsel for the appellants contended that prosecution has failed to prove its case beyond reasonable doubt that the eye-witnesses are partisan that there is no independent corroboration of the statements made by the eye-witnesses and that there is a reasonable possibility of the defence version given by irshad Ahmad being true. Conversely the learned counsel for the State has supported the judgment of the trial Court. It may be noted that no one has appeared on behalf of the revision petitioners.

< [if supportLists]>12. We have considered the argument advanced by the learned counsel for the parties with care. Since it is a case of tow versions therefore we consider it appropriate to discuss prosecution case more particularly the eye-witnesses first in order to come to an independent finding on the truth or falsity of the prosention case and the credibility of the eye-witness and would then examine the statement of the appellants and their defence evidence and would criticize them in the light of the circumstances brought on the record if necessary. Abdur Rehman P.W. 10 Mushtaq Ahmad P.W.11 and Mst. Jameela P.W. 12 have been produced as eye-witnesses of the occurrence. Abdur Rehman P.W. 10 And Mushtaq Ahmad P.W. 11 have also deposed about the motive the incident which took place on the same day at 3 p.m. So the fate of the case mainly depends on the evidentiary weight which may be attached to their statements. We find that there is ample oral as well as documentary evidence in the shape of Exhs.D.G D.H.. D.J. D.K. D.L. D.M. D.N. D.O. D.U. D.V. D.W. and D.Y. to the effect that not only the aforesaid three eye-witnesses were interested as well as partisan but also the local police had a motive to falsely involve the appellants in the case. It has been admitted by Abdur Rehman complainant P.W. 10 that there were tow parties in the village. He and the witnesses belong to one party and the accused belong to the other party. He stated that the enmity between them and the accused started with litigation between them and they have disliking for the accused appellants because of the enmity. That being the position the rule of prudence requires independent corroboration of their statement qua each appellant. It may be noted that to prove the motive which could have used as a corroborative piece of evidence, the prosecution examined Abdur Rehman P.W. 10 and Mashtaq Ahmad P. W. 11. Since they are also the eye‑witnesses of the occurrence therefore, their evidence with regard to motive part cannot corroborate the ocular account of the occurrence given by them. 1t is well‑settled that corroboration must come from a distinct source. Although Girdawar and Patwari who were quite inde‑1 t; pendent persons were present at the time o; the motive incident yet the prosecution did not care to, produce them, The incriminating recoveries from the appellants have not been believed and acted upon by the trial Court and that too for good reasons. After having examined the prosecution case, its evidence, the circumstances brought on record, the statements made by the appellants and the defence evidence in juxtaposition, we feel that there is also reasonable possibility of the defence version true inasmuch as Taj Din D. W. 2 and Noor Muhammad D. W. 3, the two injured persons have supported the defence version and Muhammad Riaz Inspector Crimes Branch D. W. 1 had also obtained non‑bailable warrant for the arrest of Bashir Ahmad Ex‑Army man, who according to the defenc version had fired shots during the occurrence and had got him declared a proclaimed offender. Furthermore. the injuries found on the person of Irshad Ahmad appellant have also not been satisfactorily explained by the prosecution. For all these reasons, we are of the view that the pro secution has failed to prove its case beyond reasonable doubt.

13. The upshot of the above discussion is that there being no sati factory basis to uphold the conviction and the sentence of the appellants, so while giving them the benefit of doubt, they are acquitted of the charges. They shall be released if not required to be detained in some other case. Connected Criminal Revision is dismissed.

The sentence of death is not confirmed.

Appeal accepted.

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