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Criminal Appeal No.104/(Hyd.), Confirmation Case No.6 of 1985 and Confirmation Case No.3 of 1986 (Kar.), decided on 12th November, 1986.

---S.302--Evidence, appreciation of--Ocular evidence not of unimpeachable standard--Presence of eye-witnesses at scene of offence not in course of normal events and two out of such witnesses very close relations of deceased while remaining one though an unconnected person yet a chance witness and his name not appearing is; P.I.R. No person from surrounding shops examined by prosecution to get impartial version of incident--Circumstantial evidence of recovery of blood-stained crime knife from accused of suspicious nature Accused having no ostensible reason for making attack on deceased Prosecution evidence, held, not sufficient to prove capital charge against accused-- Conviction and sentence set aside, in circumstances.

P L D 1973 S C 321; 1973 P Cr.L J 891; 1984 P Cr.L J 1234; 1984 P C r. L J 2997; 1972 S C M R 144: 1984 P C r. L J 1237; 1974 PCr.LJ 208; P L D 1978 S C 135; Criminal Appeal No.65/79; Muhammad Sharif v. Tahirur Rehman and 3 others 1972 S C M R 144; Bagh Ali and 4 others v. The State P L D 1973 S C 321; Noor Muhammad and 3 others v. The State 1973 P Cr. L J 891; Yaqoob Shah v. The State P L D 1976 S C 53 and Noor Alam v. The State P L D 1978 S C 137 ref.

Abdul Rasool Agha for Appellant.

Makhdoon Abdul Wali for the State.

Date of hearing: 1st October, 1986.

--Appellants Abdul Ghafoor and Muhammad Rafique have been convicted of an Offence punishable u/s 302 r/w section 34 P.P.Code by the learned Sessions Judge, Nawabshah, by his judgment dated 2-12-1985, in Sessions Case No.277/82. The appellant Abdul Ghafoor has been sentenced to death by hanging till he is dead and he has also been imposed fine of Rs.5,000 or to suffer rigorous imprisonment for three months in default. The appellant Muhammad Rafique has been sentenced to suffer imprisonment for life and also pay fine of Rs.5,000 or to suffer rigorous imprisonment for three months in default. The amount of fine imposed on them has been ordered to be paid as compensation to the heirs of the deceased, it recovered. They have preferred this appeal against their conviction and the sentence awarded on them. The learned Sessions Judge also has made reference u/s 374 Cr.P.C. for confirmation of death sentence awarded, to the appellant Abdul Ghafoor.

Both the appellants were tried on the charge of having intentionally caused death of Muhammad Anwar Awan, in furtherance of their common intention, in Sakrand Town, District Nawabshah, on 5th September, 1982, at about 7.00 P.M. Prosecution case, briefly stated, is that the appellants Abdul Ghafoor and Muhammad Rafique are respectively, son and father inter se. The appellant Abdul Ghafoor used to sell 'Kabab' on a push cart in Sakrand Town. The deceased Muhammad Anwar, aged about 27 years, used to run a Cassettes shop in Sakrand town. His father Ghulam Sarwar used to run a hotel in the same town but at a different place. It is alleged that there had been quarrel, a day prior, between the deceased Muhammad Anwar and the appellant Abdul Ghafoor over the parking of the push cart by the latter near the hotel of deceased's father Ghulam Sarwar and the appellants were annoyed on account of that incident. It is further alleged that the deceased Muhammad Anwar and his father Ghulam Sarwar were sitting at the former's Cassettes shop on the next day evening viz 5th September 1982, when both the appellants made sudden appearance there at about 7 O'clock, while the appellant Abdul Ghafoor was armed with a knife, and blamed the deceased for the previous day's incident of quarrel and the appellant Abdul Ghafoor struck him on his chest with the knife, at the instigation of appellant Muhammad Rafique, and laid him to the ground. The incident was witnessed by the father of the deceased Ghulam Sarwar, the deceased's uncle Sher Muhammad and cousin Muhammad Zamarud, a passer by Lal Bux and the nearby shopkeepers. The victim Muhammad Anwar was immediately shifted to the local hospital where he succumbed to the injury in a short while. His father Ghulam Sarwar lodged report at the local police station at about 7-55 P. M. The crime was registered by Manzoor Ahmed SHO. He proceeded to the hospital, prepared inquest report of the corpse in presence of More and Haji Waris mashirs and referred the corpse to the Duty Medical Officer Dr. Hafeezur Rehman for its post-mortem examination. He then recorded statements of witnesses Sher Muhammad and Zamarud. Thereafter, he apprehended both the appellants from their house and recovered a blood-stained crime knife from the appellant Abdul Ghafoor, who voluntarily produced it from his house in presence of mashirs. The SHO recorded statements of some other witnesses including Lal Bux on 6-9-1982. He forwarded the crime knife to Chemical Examiner. After completing the investigation, he challaned the appellants.

Both the appellants were tried on the charge of offence punishable u/s 302 r/w section 34 P.P.Code. Prosecution examined Tapedar Taj Muhammad Shah (PW-1), Mashir Mour (PW-2), another Mashir Muhammad Mushtaq (PW-3), complainant Ghulam Sarwar (PW-4), another eye-witness Sher Muhammad (PW-5), eye-witness Lal Bux (PW-6), Medical Officer Dr. Hafeezur Rehman (PW-7) and the Investigating Officer Manzoor Ahmed P. I. (PW-8).

Both the appellants denied their involvement in murderous assault on the deceased Muhammad Anwar. Appellant Abdul Ghafoor also denied that he had any quarrel with the deceased on the previous day but he alleged that the complainant, party suspected him of intrigue with a lady and desired that he should shift his pushcart for selling 'Kabab' from near their house and alleged false implication on that account. The appellant Muhammad Rafique endorsed the statement made by his son Abdul Ghafoor appellant. They did not adduce any evidence in defence.

The learned trial Judge formulated two points for determination; one relating to the cause of death of the deceased and another to the complicity of the appellants in causing his death. He, relying upon the medical evidence, held, that the deceased had died due to knife injury sustained by him. He further held, on the basis of the ocular evidence furnished by the complainant Ghulam Sarwar and PWs Sher Muhammad and Lal Bux and the corroborative evidence of recovery of a blood-stained knife from the appellant Abdul Ghafoor adduced through Manzoor Ahmed SHO and Mushtaq mashir and the motive arising from the previous day's quarrel as advanced by the complainant Ghulam Sarwar, that the deceased was caused fatal injury by the appellant Abdul Ghafoor by means of a knife at the instigation by his father Muhammad Rafique appellant and found both the appellants guilty of the offence punishable u/s 302 r/w section 34 PPC and awarded on them the sentences appealed against.

The charge against the appellants gives rise to following four points for determination:

(1) Whether the deceased Muhammad Anwar died homicidal death

(2) Whether the appellant Abdul Ghafoor intentionally caused death of the deceased Muhammad Anwar by causing him fatal injury with a knife

(3) Whether both the appellants had intended to cause death of the deceased Muhammad Anwar and he was done to death in furtherance of their common intention

(4) What offence, if any, was committed by the appellants

The cause of death of the deceased from an injury sustained by him has not been disputed. Autopsy on the deceased was conducted by Dr.Hafeezur Rehman (PW-7), the Medical Officer, Rural Health Centre, Sakrand on the day the deceased was assaulted viz. 5-9-1982. The Medical Officer has stated that the deceased had sustained an incised wound 5 c. m. x 2 c. m . x cavity deep on the lower part of left side of front of thorax. According to him, the aforesaid injury had resulted in an incised injury 2 c.m. x 5 c.m. on the front side of the spleen. The Medical Officer has opined that the deceased had died due to shock and haemorrhage caused by the injury which appeared to have been caused by a sharp cutting weapon and was sufficient to have caused his death in ordinary course of nature. The post-mortem report has been put in evidence as Ex.14-A. There is also evidence of complainant Ghulam Sarwar (PW-4), Sher Muhammad (PW-5), Lal Bux (PW-6), Mashir Mour (PW-2) and the Investigating Officer Manzoor Ahmed (PW-8) that the deceased had suffered an injury. The injury suffered by the deceased was mentioned in the inquest report of the corpse (Ex.8-B) and also in Mashirnama of Wardat (Ex-8-A). Accordingly, it stands proved that the deceased Muhammad Anwar died homicidal death resulting from an injury caused to him by means of a knife.

Prosecution evidence on the points No.2 and 3 is the same and both the points are therefore discussed together. Prosecution case rests on the ocular evidence of complainant Ghulam Sarwar (PW-4), Sher Muhammad (FW-5) and Lal Bux (PW-6), circumstantial evidence in the form of recovery of a blood stained knife from the appellant Abdul Chafoor as deposed to by mashir Muhammad Mushtaq (PW-3) and the Investigating Officer Manzoor Ahmed SHO (PW-8), and motive disclosed by the complainant Ghulam Sarwar (PW-4).

The complainant Ghulam Sarwar is father of the deceased. He has stated that he has been running a hotel in Sakrand town and his son Muhammad Anwar deceased used to run a shop of Music Centre in the same town. He has alleged that the deceased Muhammad Anwar had visited his hotel in the afternoon of the day prior to the day of the incident and taken care of his hotel, while he had gone upstairs to offer prayers, and the deceased had informed him, on his return, that the appellant Abdul Ghafoor had quarrelled with him over the rubbish lying at the place where he used to park his pushcart for selling 'Kabab' and they had fought with each other. He has further alleged that on the next day evening he had gone to the shop of the deceased Muhammad Anwar to take some money from him and both of them were sitting at the shop when both the appellants went there at about 7.00 P. M. and the appellant Muhammad Rafique accused the deceased of having insulted his son Abdul Ghafoor on the previous day and instigated Abdul Ghafoor not to spare him (the deceased) and thereupon Abdul Ghafoor (appellant) struck the deceased Muhammad Anwar on his chest by means of a knife. He has further stated that PWs Sher Muhammad, Muhammad Zamarud and many other persons reached there on his cries and joined hands with him in carrying the victim Muhammad Anwar to the Local Hospital but the deceased could not survive. He had lodged report at the local police station in the same evening at about 7.55 P.M. The report lodged by him is Ex-10. The next eye-witness, namely-Sher Muhammad (PW-5) is maternal-uncle as well as father-in-law of the deceased Muhammad Anwar. He resides in Sakrand town. He has stated that he was taking his ailing son to a Local Medical Practitioner Dr.Waheed when he heard the appellant Muhammad Rafique telling his son Abdul Ghafoor appellant that he should not spare Muhammad Anwar, who had fought with him and saw Abdul Ghafoor giving knife blows to the deceased Muhammad Anwar on his chest. He has further stated that PWs Kaloo and Lal Bux had gone to the Wardat at the time of incident. He has also stated that he and others had taken the injured Muhammad Anwar to the hospital but he could not survive. The third eye-witness Lal Bux (PW-6) has stated that he had gone to a barber's shop in the town for shave when he saw that the appellant Muhammad Rafique asked his son Abdul Ghafoor appellant to take revenge from the deceased Muhammad Anwar for the disgrace meted out to him on the previous day and the appellant Abdul Ghafoor struck the deceased Muhammad Anwar by means of a knife.

The evidence of the aforesaid three eye-witnesses has been assailed by the learned counsel for the appellant on various grounds. He has contended that two of the eye-witnesses are deeply interested witnesses as complainant Ghulam Sarwar is father of the deceased and PW Sher Muhammad is maternal-uncle as well as father-in-law of the deceased. He has further contended that all the three eye-witnesses are chance witnesses. He has pointed out that the complainant Ghulam Sarwar used to run a hotel at a considerable distance from the shop of the deceased where the incident took place and he has himself shown that he happened to be there for taking some money from his son, the deceased, and therefore his presence at the eventful moment was by chance. He has next pointed out that PW Sher Muhammad has stated that he happened to witness the incident as he was taking his son to a Local Medical Practitioner for getting him medicines. He has also pointed out that PW Sher Muhammad had given a different version in his statement before police as well as in his 164 Cr.P.C. statement that he himself was ailing and he had gone to the Medical Practitioner to take medicine and was accompanied by his son. He has also argued that the third eye-witness Lal Bux has disclosed that h-e was not original resident of Sakrand town and that he had been working as a labourer at different places and on the eventful day even he had worked at Kazi Ahmed and had returned from there on that day evening and was going to a barber's shop for shave when he happened to witness the incident and he is obviously a chance-witness. He has further argued that names of two other persons namely, Zamarud and Kaloo were disclosed as to have witnessed the incident but they were not examined and that Fact gives rise to adverse inference that they would not have supported prosecution case if they had been examined. The learned counsel has pointed out that it has come in evidence that the shop of the deceased, where the incident took place, is surrounded by many shops and there is also a clinic of a Medical Practitioner and those shops and the clinic were open at that time and the shopkeepers there had witnessed the incident and yet none of them had been examined to give evidence about the occurrence. He has therefore advanced the argument that the evidence of these eye-witnesses cannot be implicitly relied upon unless corroborated by independent evidence and he has placed reliance on the cases reported in P L D 1973 S C 321 and 1973 P Cr.L J 891. The learned counsel has cited a case reported in 1984 P Cr.L J ( ) and other two cases reported in 1984 P Cr.L J 1237; 1984 P Cr.L J 2997 on the proposition as to what is the effect of non-examination of independent witnesses. On the same proposition, he has also cited other two cases reported in 1972 S C M R 144 and 1984 P Cr.L J 1237. The learned counsel has launched attack on the admissibility in evidence of the First Information Report contending that the evidence of the Medical officer reveals that it had been recorded after preliminary investigation was made by the Police and has relied upon a case reported in 1974 17 Cr.L J 208.

On the other hand, the learned Counsel for the State has urged that the eye-witnesses are natural witnesses as they happened to be at or near about Wardat in normal course. He has further urged that mere relationship of complainant Ghulam Sarwar and P'W Sher Muhammad with the deceased does not make their evidence untrustworthy. He has cited a case reported in P L D 1918 S C 136 as the supporting authority. He has submitted that none of the persons from the surrounding shops and the nearby clinic was prepared give evidence due to fear and none of them went forward to give evidence and, according to him, that fact did not weigh against the prosecution case. He has placed reliance on an unreported judgment in a Confirmation Case No. 21/79/Criminal Appeal No.65/79 decided 20-8-1980. According to the learned Counsel, the evidence by the prosecution does prove involvement of the appellants ,commission of the crime as alleged.

The deceased Muhammad Anwar was assaulted at his shop Sakrand town at about 7.00 P.M. There are shops on both sides well as in front of the shop of the deceased. There is also a clinic in the same Bazar. It is in evidence that the shops and the clinic were open at that time and the shopkeepers had witnessed the incident. The eye-witnesses examined by the prosecution are Ghulam Sarwar, who is father of the deceased, Sher Muhammad, who is maternal-uncle as well as father-in-law of the deceased and Lal Bux, a passerby. Ghulam Sarwar, the father of the deceased, has stated that he happened to be at the shop of the deceased as he wanted to get some money from the deceased. Otherwise, this witness Ghulam Sarwar had been running a hotel in the same town at some distance from the Wardat. P. W. Sher Muhammad was living at about a call's distance from the Wardat and he has stated that he had gone to a Medical Practitioner to obtain medicine for his ailing son, whereas his version in his 164 Cr.P.C. statement and his statement before Police was that he himself was suffering from fever and he had taken his son Zamarud for taking medicine from a Doctor. This witness has given his occupation as a hotel keeper and the complainant Ghulam Sarwar has stated that the hotel of the witness is about 12 miles away from the Wardat. PW Lal Bux has stated that he happened to see the incident while he was going to a barber's shop for shave. He has disclosed in cross-examination that his Home Town Tharo Shah is about 70 miles from Sakrand but he had been doing labour work at various places and he had worked on that at Kazi Ahmed, a place about 17 miles away from Sakrand town, and he had returned from there in the evening and was going for shave. He has also disclosed that his residence in Sakrand town was about half a mile away from the shop of the deceased. It is obvious that complainant Ghulam Sarwar and PW Sher Muhammad are not only very closely related to the deceased but their presence at the Wardat also was not in normal course. Of course, PW Lal Bux has not been connected with the deceased but he is undoubtedly a chance witness. His name was not disclosed in the F.I. R. and the complainant Ghulam Sarwar has stated that he had not seen this witness at the time of incident and had seen him after the incident was over and the accused/ appellants had gone away. Complainant Ghulam Sarwar and PW Sher Muhammad have stated that the incident was also witnessed by Zamarud, a son of the latter. The name of Zamarud was disclosed in the F.I.R. He was not examined by the prosecution. Of course, no adverse inference may necessarily be drawn from the fact that he has not been examined as he is a maternal-cousin as well as brother-in-law of the deceased and he would not have given go-by to the prosecution case. Name of PW Kaloo was disclosed by PW Sher Muhammad as an eye-witness and his statement was actually recorded by the police but he has not been examined. Of course, keeping him back gives rise to an inference that he would not have supported the prosecution case if he had been examined. As mentioned above, the incident occurred at a place and at the time where and when the surrounding shops were open and the shopkeepers had witnessed the incident-but not a single person from amongst them was examined by the prosecution to get impartial version of the incident. In a case Muhammad Sharif v. Tahirur Rehman and 3 others 1972 S C M R 144 it was held by the Supreme Court that where prosecution version was that a large number of persons had gathered at the place of occurrence but all the same prosecution had not produced a single disinterested witness in support of its case, no implicit reliance could be placed on evidence of interested eye-witness .in absence of corroboration. In a case Bagh Ali and 4 others v. The State P L D 1973 S C 321, it was observed by the Supreme Court that appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime and there is a background of enmity. In a case Noor Muhammad and 3 others v. The State 1973 P Cr.L J 891, a Division Bench of Lahore High Court held that where the eye-witnesses are chance witnesses and are closely related to the deceased, their evidence needs to be corroborated as to be relied upon. A situation of like nature where an incident of grue some murder had taken place in presence of many spectators in the main Bazar and no independent witness had gone forward to give evidence was considered by the Supreme Court in a case Yaqoob Shah v. The State P L D 1976 S C 53. Their Lordships observed that it is a requent experience of criminal Courts that where a grue some tragedy is enacted and scores of onlookers were around, yet the assassin in allowed to operate without any let or hindrance and is allowed to escape from the scene with impunity and those independent onlookers are not even prepared to say in court what they had seen and there by risk animosity of the assassin and his partisans. In the light of such observations it may be visualized that the shopkeepers did not go forward to give evidence against the assailants due to such apathetic attitude of the society yet the evidence of the eye-witnesses, discussed above, has to be examined in the circumstances pointed out above and summarised herein below. The presence of all the three eye-witnesses at the scene of offence was not in the course of normal events and two of them are very close relations of the deceased and the presence of the third one is totally unnatural and other two witnesses said to have witnessed the incident were not examined and therefore the ocular evidence adduced by the prosecution is not sufficient by itself to prove the charge of heinous offence entailing the sentence of death or life imprisonment. The cases cited by the learned counsel for the State viz. Noor Alam v. The State P L D 1978 S C 137 and the Confirmation Case No.21/1979/ Cr.A.No.65/79 decided in this Court on 20-8-1980 had altogether different features and do not apply to the facts of this case.

To furnish corroborative evidence, prosecution has examined mashir Mushtaq (PW-3) and the Investigating Officer Manzoor Ahmed SHO (PW-8) who have stated that both the appellants were arrested at their house in Sakrand town during the course of same night and that the appellant Abdul Ghafoor produced the blood-stained knife from his house. Manzoor Ahmed SHO has produced chemical examiner's report Ex.15-A which shows that the knife recovered from the appellant Abdul Ghafoor was stained with human blood. But the evidence of mashir Mushtaq has been assailed on the ground that he is not a resident of Sakrand town and his selection by the Police to act as a mashir in a town inhabitated by a large number of people smacks of selection of a person of choice to act as a mashir to support any thing expected of him. Mashir Muhammad Mushtaq has admitted that at the time of incident he was residing at a village of Muhammad Hussain at the distance of about six miles from Sakrand and he happened to be at Sakrand town that night for visiting a fair. It has been disclosed by the complainant Ghulam Sarwar in cross -examination that this witness Muhammad Mushtaq had accompanied them to Hospital when they had carried Muhammad Anwar there. This fact indicates that he had some connection with the complainant party and had gone with them to the hospital. The other mashir by name Ali Abid, who was from Sakrand town, was not examined by the prosecution. In the circumstances, the evidence of recovery of the crime weapon is not confidence inspiring and chemical examiner's report that human blood was found on the knife therefore does not furnish evidence of incriminating nature to corroborate ocular evidence of two closely related witnesses and one totally a chance witness.

Prosecution has also attributed motive to the appellants that they made attack on the deceased as there had been quarrel between the appellant Abdul Ghafoor and the deceased on the previous day over the parking of a pushcart by the former near the hotel of the deceased's father. The appellants have denied that there had been such an incident, but the appellant Abdul Ghafoor has alleged that he used to sell 'Kabab' near the hotel of the deceased's father and they did not like his selling the Kabab there as they suspected him of illicit intrigue with a woman in their house. It follows that there was ill-will between the appellant Abdul Ghafoor and the deceased over the parking of the pushcart by the appellant Abdul Ghafoor near the hotel of the deceased's father. But that matter would not have incited the appellants to have made murderous assault on the deceased at the time and place of the alleged incident at the great risk of identification or even capture at the Wardat as they would wait for convenient occasion for carrying out their design in some other manner.

It is has been discussed above that ocular evidence is not of unimpeachable standard, the circumstancial evidence of recovery of the blood-stained crime knife from the appellant Abdul Ghafoor is of suspicious nature, and the alleged motive was such that the son and the father had no ostensible reason for making attack on the deceased at that time and place and only one of them was armed with a knife and other one was empty handed. Obviously, the prosecution evidence is not sufficient to prove the capital charge against the appellants. Accordingly the appeal is allowed, the reference under section 374 Cr.P.C. for confirmation of death sentence awarded on the appellant Abdul Ghafoor is rejected and the conviction of both the appellants and the sentence imposed on them are set aside. Both the appellants shall be released forthwith unless required to be detained in any other case.

S. G. D./A-78/K Appeal allowed.

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