Find a Lawyer

Criminal Appeal No. 48 of 1986, decided on 13th November, 1986.

‑‑‑Ss. 302, 307, 452/149 & 148‑‑Ocular testimony, appreciation of‑ Occurrence taking place in house of complainant in day time‑‑Dispute over water drain passing in front of their houses‑‑Accused and complainant party related inter se, living in same village‑‑Witnesses closely related to deceased‑‑Seven accused coming to spot duly armed with guns, hatchet and Lathis, causing injuries to seven persons, one of whom died‑‑No difficulty for witnesses to correctly identify assailants‑ Complainant stating of accused speaking to him about dispute and on his refusal to accept their demand, opening attack‑‑ Complainant still remaining unhurt and giving graphic account of details of incident‑ Complainant contradicting himself at trial as to a witness being injured in incident or not‑‑Complainant having seen occurrence or being present at spot, held, was not free from doubt in circumstances.

‑‑‑Ss. 302, 307, 452/149 & 148‑‑Ocular account, appreciation of‑‑ Injured witnesses closely related to deceased‑‑Witnesses identifying accused as assailants and describing their weapons and specifically naming assailants who caused injuries to them‑‑Witnesses stating to have become unconscious after receipt of gunshot injuries and regaining consciousness in hospital after 3/4 days‑‑Investigating Officer and medical evidence contradicting witnesses on this count‑‑F.I.R. also contradicting witnesses‑ ‑ Witnesses not giving details of remaining incident‑‑Another injured witness, brother of complainant, not supporting prosecution‑‑No attempt made to bring on record, statement of witness recorded ‑under S. 164, Cr.P.C. to be used as substantial evidence‑‑Another witness allegedly injured in occurrence, found to be unhurt by Doctor and Investigating Officer‑‑Claim of witness of becoming unconscious after receipt of injuries also contradicted‑‑ Background of enmity, admitted‑ Statements of such witnesses, held, should be accepted only when corroborated from very independent sources‑‑ Eye‑witnesses found to have perjured themselves‑‑Inherently defective evidence of such witness, could not be corroborated by another such witness as one piece of tainted evidence could not corroborate another piece of tainted evidence‑ Acquittal ordered in circumstances.

Illahi Bux v. State 1982 S C M R 57; Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC 11; Abdul Hameed and another v. State 1985 P Cr. L J 1992; Muhammad Afsar v. The Crown P L D 1954 FC 170; Shah Ali and others v. The Crown P L D 1954 Sind 136; Wazir Ali and others v. State P L D 1960 Kar. 674; Barkat v. State 1968 S C M R 685 and Muhammad Hussain and another v. State 1982 P Cr. L J 888 ref.

‑‑Ss. 302, 307, 452/149 & 148‑‑Dying declaration‑‑Witness very badly injured and dying within six hours of occurrence‑‑Deceased receiving 8 fire‑arm injuries in neck and chest‑‑Extensive damage of pleura, lungs, pericardium, heart and blood vessels‑‑Deceased giving complete details of occurrence in which seven assailants attacked and seven persons injured‑‑All weapons mentioned, including who injured who and how Background of dispute also given in detail‑‑Such detailed and lengthy account, held, was simply not possible from person so badly injured‑ Dying declaration discarded in circumstances.

‑‑‑Ss. 302, 307, 452/149 & 148‑‑Recoveries‑‑Three crime empties recovered from spot found to be fired from three guns recovered from three accused‑‑Crime empties not sent to Ballistic Expert till after recovery of guns‑‑Parcels remaining with police for six months without any explanation‑‑One hatchet and three Lathis recovered from accused not found stained with blood‑‑Recovery witness not supporting prosecution‑‑Other public witness not produced‑‑Investigation found far from honest‑‑Recoveries of weapons and report of Ballistic Expert, held, could not be relied upon in circumstances.‑‑[Recovery].

Muhammad Shafi and another v. State P L D 1968 Lah. 869 and Mujahid Hussain v. State 1985 S C M R 1973 ref.

Muhammad Hayat Junejo for Appellants.

Muzaffar for the State.

Dates of hearing: 19th, 20th and 21st August, 1986.

The seven appellants named above have filed this criminal appeal jointly, whereby they have called in question their conviction under sections 148 and 149, P.P.C. and sentence to R.I. for one year each and under sections 452 and 149, P.P.C. sentence to R.I. for three years each and fine of Rs.1,000 or in default R.I. for three months more. By the same appeal appellant No. 1, Ismail son of Gamman Khaskheli and appellant No. 5 ldrees son of Gamman Khaskheli have challenged their conviction under section 307, P.P.C. and sentence of R.I. for 6 years and fine of Rs.2,000 each or in default R.I. for three months more. Appellant No. 7, Jan Muhammad alias Jano son of Khan Muhammad has also challenged his conviction under section 302, P.P.C. and sentence to life imprisonment and fine of Rs.5,000 or in default R.I. for one year. He is further directed to pay compensation to the legal heirs of Mst. Bhirai a sum of Rs.5,000. It is also directed the fine if recovered from appellant No. 6 Leemo, then 50% thereof be paid to Mst. Noor Khatoon and likewise half of the fine recovered from appellant Idrees be paid to Mst. Basran. Appellants have been given benefit of section 382‑B, Cr.P.C. Under this appeal judgment impugned is dated 3rd March, 1986 passed by Mr. S. Mahmoodul Hassan Naqvi, First Additional Sessions Judge, Nawabshah.

Briefly stated the relevant facts of the case are that from the appellants named above Nos. 1 to 5 are brothers inter se and No. 6 Leemo is their uncle being brother of their father Gamman. Appellants and complainant party are caste‑fellows and relatives and reside in the same village Mir Khan Laghari, Taluka Sakrand, District Nawabshah. It appears from F.I.R. that there was dispute between the two parties over closing of track by the complainant party near their houses and extending their hedge to the south. This was objected to by the appellants and they had asked the complainant party to shift the hedge to its original place to allow wider way as was available before. Complainant party had closed down the drain and extended their hedge after having obtained approval from the Nekmards who had resolved the dispute. Appellants refused to abide by settlement and insisted on status quo ante. On the day pf incident i.e. 7‑1‑1983 at 4 p.m. all the seven appellants named above came duly armed to the house of the complainant Haji Allah Ditta and asked him to shift the hedge to its original place and on his refusal to do so appellant Leemo instigated whereupon all the appellants entered the hedge and attack was opened. Appellant Leemo was armed with double barrel gun and appellants Jano and Idrees were armed with single barrel guns. Appellant Ghani was armed with hatchet while appellants Ismail, Nooro and Sattar were armed with Lathis. After instigation Leemo fired at Haji Murad, who got his face and neck injured whereupon Mst. Basran, Mst. Noor Khatoon, Mst. Bhirai, Mst. Sahib Khatoon, Khaman and Rahman came forward. Appellant Leemo fired at Mst. Noor Khatoon, appellant Idrees fired at Mst. Basran and Haji Mitho. Appellant Janoo fired at Mst. Bhirai, Mst. Sahib Khatoon and Khaman who all became injured. All the injured persons fell down. Appellant Sattar gave Lathi blows to Haji Mitho. Appellant Ghani gave hatchet blows to Rahman. Appellant Ismail gave Lathi blows to Murad. Appellant Nooro gave Lathi blows to Khaman. Complainant raised cries and on his cries and gun reports persons came out from their houses in the village. Appellants fled away firing in the air. Complainant came to Police Station Sakrand at a distance of four miles and registered F.I.R. at 5‑30 p.m.

S.H.O. Sarfraz Ahmad has deposed before the trial Court that after registration of F.I.R. he came to the scene of offence and saw injuries on eight persons. He prepared such Mashirnama Exh. 21. He recorded statements under section 161, Cr.P.C. of Mst. Bhirai, Mst. Noor Khatoon, Mst. Basran, and Haji Murad and referred them to the hospital for examination. Mst. Bhirai died subsequently in the hospital. This witness has further stated that he recorded statements of other witnesses namely P.Ws. Khaman, Rahman, Haji Mitho and Mst. Sahib Khatoon and referred them to Medical Officer Sakrand for examination. In the morning, he inspected the scene of offence on pointation of complainant Allahditto. He secured blood‑stained earth from four spots in the courtyard of the house of complainant. He secured three empty cartridges of .12 bore of Shaheen Company from the place of incident which he put into sealed parcel. He prepared Mashirnama of the scene of offence. Since Mst. Bhirai had succumbed to the injuries in the hospital, this witness added section 302, P.P.C. in the case papers. On 13‑1‑1983 he arrested appellants Ismail, Nooro, Sattar and Ghani and prepared such Mashirnama. Appellant Ismail while m custody led to the recovery of Lathi from the hedge of his house. Appellant Nooro produced one Lathi from the Chhapar of his house. Appellant Ghani produced hatchet from the hedge of his house. On 14‑1‑1983 this witness arrested Leemo and Idrees and prepared such Mashirnama. Appellant Leemo produced his double barrel gun alongwith licence. The gun was sealed. Appellant Idrees produced licensed double barrel gun alongwith licence. That gun was also sealed. On 16‑1‑1983, this witness arrested appellant Jano alias Jan Muhammad, who while in custody produced one single barrel gun from the hedge of his house. This appellant could not produce his licence for his gun. Separate case under section 13(e) of the Arms Ordinance was registered by this witness against him. On 29‑1‑1983 statements under section 164, Cr.P.C. of P.Ws. Khaman, Murad, Mitho and Rehman were recorded and challan was submitted.

Prosecution in the trial Court examined ten witnesses in support of its case. Out of them five were examined as eye‑witnesses. P.W.1, complainant Allahditto is not injured eye‑witness. He is brother of husband of deceased Mst. Bhirai. He has deposed about the motive and facts of the incident as stated above. He left the injured persons in the care of others and himself went to police station where he filed F.I.R. He produced F.I.R. Exh. 15 in the Court.

P.W. 2 is Mst. Basran, who is injured eye‑witness. She is mother of complainant and deposed before the trial Court that seven appellants came to her house and opened attack. She sustained gunshot injuries at the hands of appellant Idrees and fell down and became unconscious. She regained senses in Nawabshah hospital on the 4th day of incident.

P.W. 3 is Mst. Noor Khatoon who is injured eye‑witness. She is sister of complainant and daughter of P.W. 2 Mst. Basran. She has deposed that all appellants came to her house duly armed and opened attack and in the result she sustained two gunshot wounds at the hands of appellant Leemo. After becoming injured she fell down and became unconscious. She regained senses in Nawabshah hospital.

P.W. 4 is Haji Murad who is injured eye‑witness. He is brother of complainant and husband of deceased Mst. Bhirai. In his deposition before the trial Court, he did not support the prosecution case and was declared hostile and cross examined.

Last eye‑witness examined is P.W. 6 Mst. Sahib Khatoon. She is wife of P.W. Khaman. She claims to be injured eye‑witness but Doctor says that she was not injured.

At this stage it would be pertinent to point out that in the trial Court A.P.P. Incharge of the case on behalf of prosecution filed statement in writing dated 11‑8‑1984 whereby he gave up eye‑witnesses Haji Mitho and Rahman on the ground that they would not support the prosecution case as they had been won over by the accused as claimed by Complainant in application filed by him. Both Haji Mitho and Rahman were injured eye‑witnesses. Another injured eye‑witness not examined was Khaman who died due to natural death during the trial proceedings before his evidence could be recorded.

Another important witness, who did not support prosecution case in the trial Court and was declared hostile is P.W. 5 Mashir Muhammad Ali. He had attested all the Mashirnamas prepared during the investigation of the case but in the Court stated that crime empties were not recovered from the spot and guns recovered from appellants were not sealed in his presence.

P.W. 7 is Dr. Hassan Dost, who conducted post‑mortem examination on the dead body of Mst. Bhirai on 8‑1‑1983. According to the Doctor she sustained eight lacerated wounds which were caused by firearm. She died due to shock and haemorrhage Injuries were individually and collectively sufficient to cause death.

P.W. 8 is Dr. Hafeezur Rehman, who examined all injured persons including Mst. Bhirai before her death. He examined in all eight injured persons.

P.W. 9 is S.H.O. Sarfraz Ahmad, who had investigated the case. He produced statement recorded by him under section 161, Cr.P.C. Exh. 49 of Mst. Bhirai before she died which was used as dying declaration.

Prosecution examined P.W. 10 Elahi Bux, Tapedar, who prepared sketch of scene of offence on 13‑8‑1985 on the pointation of complainant Allahditto.

Prosecution also produced in the trial Court report of the Ballistic Expert Exh, 54 and report of Chemical Examiner Exh. 55. According to Exh. 54 three crime empties were found to have been fired one each from three guns sent to the Laboratory. According to Exh. 55 earth was found to be blood‑stained.

In the trial Court appellants in their statements under section 342, Cr.P.C. denied prosecution allegations and proclaimed innocence and false implication due to enmity. In the defence affidavit sworn by Mashir Haji Muhammad Ali has been produced as Exh. 64 wherein he had stated on oath that police took from him his signatures on blank papers and told him that he was being made Mashir in this case. Further three defence witnesses have been examined. D.W.I, Abdullah Khan is Notary Public and deposed that affidavit Exh. 64 was sworn before him by Muhammad Ali who had produced his National Identity Card. Muhammad Ali was further identified by Abdul Wahid Mallah. D.W. 2 is Abdul Wahid who is Clerk to Mr. Abdul Fateh Memon, Advocate for the complainant in the trial Court in this case. He deposed that there was compromise between the parties. D.W. 3 is Pir Bux who is petition‑writer and he drafted affidavit Exh. 64.

I have heard at a considerable length Mr. Muhammad Hayat Junejo counsel for appellants and Mr. Muzaffar Hussain for A.G. for State. In this case in the trial Court reliance has been placed on various pieces of evidence. The most important piece of evidence is ocular in this case because there are injured eye‑witnesses as well. Before I appraise ocular testimony, I would like to state here about the dispute between the parties and background of enmity. It is admitted in F.I.R. Exh. 15 by complainant that both parties are related to each other and there has been a dispute between them over a street matter and the complainant party had closed down the water drain and extended the hedge of their houses. On the other hand, the appellant party insisted that the hedge should be shifted back to its original place. According to the prosecution this dispute between the parties provided motive for commission of crime. Complainant has stated in his cross‑examination before the trial Court that "Nali" which was disturbed due to shifting of hedge used to take water to the agricultural land of Ghulam Sarwar Laghari which was being cultivated by accused party on "harap". Complainant also admitted that there was mango garden and "falsa trees" which were being irrigated through that "Nali". The Nali was excavated about two years before the incident. Complainant also admitted in his cross‑examination that Gamman is brother of appellant Leemo and so also Walio. Complainant denied suggestion that 8 or 10 years before the incident Gammon had sustained injuries and his brother Walio had lodged F.I.R., wherein P.W. Murad, Malook father of P.W. Mitho and his brother Bacho were challaned. Complainant further stated that he did not know if in that case Murad and Malook were convicted and Bacho was acquitted. Complainant also stated in the cross‑examination that he knew Ghulam Sarwar Laghari and his brother. Complainant admitted in the cross‑examination that there were two big Zamindars in the area namely Rasool Bux Laghari and Ghulam Sarwar Laghari and relations between them were strained. Some Khaskhelees were with Rasool Bux and others were with Ghulam Sarwar. Rasool Bux had filed case against appellant Leemo and his brother Walio, Idrees and Tharo. Complainant denied suggestion that he went to Rasool Bux Laghari before lodging the F.I.R. He admitted that one Haji Qasim Laghari had filed case against appellants Leemo and Idrees about injuries and it is correct that Haji Qasim Laghari is related to Rasool Bux Laghari.

Injured eye‑witness Haji Murad who did not support the prosecution case before trial Court and was declared hostile admitted enmity in his deposition between Ghulam Sarwar Laghari and Rasool Bux Laghari and the fact that Leemo and other appellants are Harees of Ghulam Sarwar Laghari. He also admitted that Rasool Bux Laghari had filed a criminal case against Leemo and his brother and they were acquitted. He also admitted that Rasool Bux Laghari had got filed criminal case against Ghulam Sarwar Laghari and his brother and one Khuda Bux Khaskheli. In that case they were acquitted. Leemo has filed case against Rasool Bux Laghari and his other relations. He admitted that Master Muhammad Aleem Laghari has filed case against Wallan Khaskheli who is related to the appellants.

Now I take up ocular testimony. It is the case of the prosecution that incident took place at 4 p.m. on 7‑1‑1983 in the house of complainant Haji Allahditto. Seven appellants duly armed came to the house of complainant and attacked. In consequence whereof seven persons became injured from whom Mst. Bhirai succumbed to her injuries in the hospital. All the persons are related to the complainant because incident took place in the house of complainant. Since appellants are related to the complainant party and are residing in the same village as admitted in F.I.R. and because incident took place at 4 p.m. then there should not be any difficulty for eye‑witnesses to correctly identify the assailants and they are expected to say that as to who caused injuries to whom. Complainant has stated in F.I.R. that he was present in the house when the appellants came and he spoke to them about shifting of hedge and on his refusal to do so attack was made with guns and other weapons resulting into injuries caused to seven persons but somehow complainant managed to remain unhurt.

It is surprising that how complainant was not hurt when he spoke face to face with assailants and then claimed to have seen whole incident from beginning to the end in which seven persons were injured including ladies who had nothing to do with the dispute between two parties. If there were really seven assailants, then one or more could have taken care of the complainant and could have given him some injuries particularly when he was present with whom talk was initiated in the prelude about shifting of hedge and complainant refused point blank upon which attack was commenced. Complainant could have been the first victim. Secondly, if claim of the complainant is correct that he managed to keep himself unhurt then he must have concealed himself in some such corner of the house that nobody could see him. In such case he would not be able to give graphic account of details of incident as to who caused injuries to whom particularly when there were seven assailants and seven injured persons. In the circumstances, claim of complainant that he has seen the incident is not free from doubt particularly when he is not injured. It would be correct to say that either complainant due to fear concealed himself in such a place that he could not be found by assailants and could not see the remaining part of the incident. Alternatively, it can be said that he saw the whole incident as is claimed by him then he had exposed himself to the attack by the assailants, who would not have spared him particularly when innocent ladies in the house were also wounded.

After the incident was over complainant left the injured persons and himself repaired to the police station where he filed F.I.R.

In F.I.R. complainant has given details about how appellants were armed and who caused injuries to whom as under:‑‑

"Leemo was armed with double barrel gun. Janoo and Idrees each was armed with single barrel gun. Ghani was armed with hatchet while Ismail, Sattar and Nooro were armed with Lathis. Leemo fired at Haji Murad who became injured in the face and neck whereupon Mst. Basran, Mst. Noor Khatoon, Mst. Bhirai, Mst. Sahib Khatoon, Gamman and Rahman came forward. Leemo fired at Mst. Noor Khatoon. Idrees fired at Mst. Basran and Haji Mitho. Janoo fired at Mst. Bhirai, Mst. Sahib Khatoon and Gamman. Sattar gave Lathi blow to Haji Mitho. Ghani gave hatchet blow to Rahman and Ismail gave Lathi blows to Haji Murad. Nooro gave Lathi blows to Gamman."

In the evidence in the trial Court complainant repeated the details of attack as stated in F.I.R. but made one very conspicuous departure. First he stated that Janoo fired at Mst. Bhirai. Gamman and Sahib Khatoon and they all were hit by pellets. He modified this statement and said again that Mst. Sahib Khatoon was not hit by pellets but she had fallen down due to fear.

Now I take up evidence of Mst. Basran who is injured eye‑witness and is mother of complainant. She deposed before the trial Court that in the incident she and other P.Ws. including deceased Mst. Bhirai sustained injuries. According to her at 4 p.m. seven persons came armed with guns, hatchet and Lathis and caused injuries to Haji Murad, Khaman, herself, Mst. Noor Khatoon and Mst. Sahib Khatoon. She had sustained gunshot injuries. She further claimed that she has identified all the assailants who were present in the Court and also described their weapons. She also stated that she sustained gunshot injuries at the hands of Idrees on her back and after sustaining injuries, she fell down and became unconscious. She regained senses in Nawabshah hospital on the fourth day of incident. She was in the hospital for about 8 days. Now complainant has stated in F.I.R. that first Leemo fired at Haji Murad then Leemo at Noor Khatoon and Idrees fired at Mst. Basran and Haji Mitho. Thereafter, Janoo fired at Mst. Bhirai, Mst. Sahib Khatoon and Khaman and then Lathi and hatchet blows were given. Now if Mst. Basran is to be believed as per her own statement then she has not given the version of incident in the same way as has been given by the complainant. According to her examination‑in‑chief all assailants caused injuries to Haji Murad, Khaman, herself and other witnesses. She clarified this by saying that she sustained gunshot injuries at the hands of Idrees on her back and after sustaining those injuries she fell down and became unconscious. She does not say how injuries were caused to other persons and by whom. In the cross‑examination she states that she was sitting on the cot when attack was launched and she sustained injuries in the courtyard of the house after getting up from the cot. No other eye‑witness has spoken about the cot. She categorically stated in the cross‑examination that after falling down injured she became unconscious and she did not witness the incident. Medical evidence shows that she sustained two gunshot injuries on scapular region, one on left side and the other one on right side. Both injuries were simple in nature. Exhs. 45 and 46 are her medical reports on the record which show that there was no fracture. This witness Mst. Basran is falsified by two other witnesses. S.H.O. Sarfraz Ahmad has stated in his evidence that after registration of F.I.R. he came to the scene of offence and examined injuries of the injured persons including Mst. Basran. He prepared Mashirnama of injuries Exh. 21 and recorded statements of injured witnesses under section 161, Cr. P.C. including Mst. Basran and then referred her alongwith others to Medical Officer, Sakrand, for examination. He does not say that Mst. Basran was unconscious.

Dr. Hafeezur Rehman has also falsified Mst. Basran because he examined her on 7‑1‑1983 at taluka hospital Sakrand. He does not say that she was unconscious. This witness has compromised her integrity and spoken lies. At the most she has implicated only Idrees in her evidence.

Next injured eye‑witness is Mst. Noor Khatoon who is sister of complainant and daughter of P.W. 2 Mst. Basran. In her evidence in the trial Court, she has stated that all assailants specifically named by her came armed to her house and she received two gunshot wounds at the hands of Leemo and she fell down injured and became unconscious. She regained her senses in Nawabshah hospital. She has further claimed to have remained unconscious for about 4 or 5 days. She has falsified her mother Mst. Basran by saying that at the relevant time she was sitting on the ground when accused persons came and her mother Mst. Basran was also sitting with her on the ground. She herself is falsified by S.H.O. Sarfraz Ahmad who has stated that when he went to the spot after registration of F.I.R. he recorded statement of Mst. Noor Khatoon along‑with other injured persons and then sent them to hospital for treatment. He could not possibly record her statement if she was unconscious as claimed by her. She is also falsified by Dr. Hafeezur Rahman who examined her after the incident but did not find her unconscious. This witness also has compromised her integrity and has spoken lies like her mother.

P.W. 4 Haji Murad is also injured eye‑witness. He is brother of complainant and husband of deceased Mst. Bhirai. In the trial Court he did not support the prosecution case and was declared hostile. He stated in his evidence that at the time of incident complainant was not present and secondly, faces of assailants were muffled. No attempt was made by the prosecution to have 164, Cr. P.C. statement of this witness brought on the record to be treated as substantial evidence.

Lastly, in the list of eye‑witnesses was examined P.W. 6 Mst. Sahib Khatoon. She is wife of injured P.W. Khaman. She claimed that she was injured during the incident. As per F.I.R. appellant Janoo fired direct gunshot at Mst. Bhirai, Sahib Khatoon and Khamman which hit them and all fell down injured. In the Court in her evidence she stated that appellant Janoo fired at her husband Khaman and Mst. Bhirai. About herself she stated that she was not injured but fell down due to fear. At another place in her evidence she stated that she sustained Lathi injuries but could not say at whose hands. She became unconscious and regained senses in the hospital on the third day of incident. Police recorded her statement after she came back in senses. Parts of her statement stand completely falsified. Dr. Hafeezur Rehman, who examined her, has stated in the Court that he did not notice any injury on the person of Mst. Sahib Khatoon and he produced such certificate Exh. 39. Doctor also did not say that she was unconscious. S.H.O. Sarfraz Ahmad has deposed in the Court that after registration of F.I.R. when he visited the place of occurrence he recorded statement of Mst. Sahib Khatoon. Moreover, her statement under section 161, Cr.P.C. is available in the record and shows that it was recorded on 7‑1‑1983 which is on the same day when incident took place. In the circumstances, her claim that she sustained injuries, became unconscious and her statement was recorded on the third day of incident when she came back to senses is patently false.

I have discussed evidence of eye‑witnesses above. I discard evidence of Haji Murad because he did not support prosecution and was declared hostile and his 164, Cr.P.C. statement was not brought on the record. Now remain only four eye‑witnesses out of whom two are injured and two are not. Now so far injured eye‑witnesses are concerned, there is no dispute about the fact that since witnesses are injured during the incident, their presence at the spot at the relevant time cannot be doubted. Even then their evidence is to be subjected to proper scrutiny for the reason that there are several questions still open, which are to be answered. It is to be seen whether injured eye‑witnesses really indentified assailants if incident took place in dark hours or when firing was made from some distance. It is to be seen whether such witnesses saw the whole incident or only part of it. There is no guarantee that such witnesses would never lie just because they are injured eye‑witnesses. On the other hand if there is background of enmity between parties such eye‑witnesses can get motivated to speak lies in order to involve as many as possible from the opposite side in the crime. In the circumstances when it is established on the record that there is admitted background of enmity between the parties and injured eye‑witnesses have spoken lies then on the basis of shifting grain from chaff, statements of such witnesses to the extent of their being truthful should be accepted only when there is corroboration coming from very independent sources to connect accused with commission of crime. In support of the proposition stated above, reliance is placed on the case of Illahi Bux v. The State 1982 S C M R 57.

In the instant case complainant is an eye‑witness but is not injured, hence his evidence will be at lower level than those of other injured eye witnesses. This will not make much difference because all the eye witnesses have spoken lies and perjured themselves. In the circumstances, it can be said that evidence of each eye‑witness is inherently defective so one such eye‑witness will not be allowed to corroborate another such eye witness. Corroboration in such case must come from very strong and independent circumstances. In this context reference can be made to the case of Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 S C 11.

Now it is to be seen in this case whether independent corroboration is available to supplement defective ocular testimony. Dying declaration was not relied upon by the trial Court and rightly so, for the reason that on the face of it, the statement does not appear to have been made by Mst. Bhirai before her death. This is a very lengthy statement containing minute details of the whole incident in which seven assailants allegedly attacked and seven persons in the result became injured. All weapons are mentioned including who injured who and how. Even details about background of dispute between the parties is mentioned. Such detailed account is simply not possible coming from Mst. Bharai for the reason that she was very badly injured and had died within six hours, after the incident. Her post‑mortem report shows that she sustained eight fire‑arm injuries and was wounded in the neck and chest. Internal damage was very extensive and included fracture of right clavicle and puncture of right and left pleura, both lungs, pericardium and heart even in the blood vessels right carotid and jugular vessels were punctured. In such circumstances it was simply impossible for the injured to have made such a lengthy statement as is recorded by the S.H.O.

Next piece of evidence is circumstantial in nature which is recovery of three crime empties from the spot and recovery of weapons from assailants. It may be mentioned here that one hatchet and three Lathis recovered from appellants but were not sent to laboratory for the reason that they were not stained with blood. It is the case of the prosecution that only three appellants were with fire‑arms and from the remaining four, one was armed with hatchet and three had Lathis. In the remaining evidence on this point, three crime empties were recovered from the spot. Appellant Leemo produced his licensed double barrel gun and appellant Idrees produced his licensed S.B. gun while appellant Jan Muhammad produced unlicensed S.B. gun. Report of Ballistic Expert Exh. 32 is positive that three crime empties were found to have been fired from one from each. Prosecution examined P.W. 5 Mashir Muhammad All, who did not support prosecution case and was declared hostile and cross- examined. In fact he joined investigation at the very outset and attested Mashirnamas of injures and subsequently, after appellants were arrested weapons were recovered from them in his presence. While testifying in the trial Court he stated that crime empties were not recovered from the spot in his presence and guns were not sealed. At another place in his evidence he stated that police took signatures from him at the police station on blank papers telling him that he was being joined in the investigation as a Mashir. Another very important feature of evidence of this witness is that during the course of his cross‑examination in the trial Court, he was confronted with affidavit sworn by him on 23‑7‑1984 before Notary Public in which he stated on oath that S.H.O. took signatures from him on blank papers at police station telling him that he was being made Mashir in the case. This witness disowned his own affidavit and stated that he did not swear that affidavit, however, he admitted photocopy of his national identity card accompanying the affidavit to be correct and further explained that his National Identity Card was taken from him by P.W. Haji Murad, who informed him that the same was required by an Advocate. Subsequently, this affidavit was produced by accused persons at the time, when their statements were recorded under section 342, Cr. P.C. They also produced three defence witnesses to prove the swearing of this affidavit by Mashir Muhammad Ali.

D.W. 1 Abdullah Khan deposed that he was Notary Public at the relevant time when affidavit Exh. 64 was sworn before him by Mashir Muhammad Ali, who was identified by Abdul Wahid Mallah, Clerk of Mr. Abdul Fateh Memon, Advocate. Beside that National Identity Card of deponent was also produced. Deponent signed affidavit in his presence. D.W. 2 Abdul Wahid deposed that at the relevant time, he was clerk of Mr. Abdal Fateh Memon, Advocate, who was appearing in this case for complainant. Mashir Muhammad Ali came to him with affidavit saying that the matter had been compromised and he was to be identified for swearing that affidavit. This witness further stated that he put his note of identification on that affidavit and signed it. D.W. 3 Pir Bux deposed that at the relevant time he was petition‑writer and he had written the contents of affidavit at the instance of Muhammad Ali, who produced his identity card. There is nothing adverse in the cross‑examination of these defence witnesses to suggest even remotely that they had given false evidence.

I, therefore, hold that defence has succeeded proving that affidavit Exh. 64 is sworn by Mashir Muhammad Ali and further find no hesitation in discarding evidence of this witness who refused to support prosecution case before the trial Court and not only that but he refused to own affidavit which was sworn by him. Now in the ordinary course prosecution should have examined co‑Mashir, who, in the instant case is Muhammad Amin son of Mir Muhammad Leghari but no attempt was made to do so in the trial Court. Mashir, Muhammad Ali was examined on 27‑8‑1984 and after him Mst. Sahib Khatoon was examined on 17‑10‑1984 and then two Doctors, S.H.O. and Tapedar were examined and finally vide application, dated 19‑10‑1985 A.P.P. incharge of the case closed prosecution side on the ground that material witnesses have been examined. Since prosecution without assigning any reason has not examined co‑Mashir, so the presumption will be that if co‑Mashir had been examined, he would not have supported prosecution case. Legally speaking in the absence of Mashirs, reliance can be placed even on the evidence of Investigating Officer, who scribes Mashirnama because his evidence is at par with other witnesses but in the instant case I do not feel inclined to do so for the reason that a lot of criticism has been made on the evidence of S.H.O. showing that investigation was far from honest. Dying declaration of Mst. Bhirai was prepared by S.H.O., which has not been believed by the trial Court as well as this Court. He claimed to have recorded police statements of injured eye‑witnesses at the spot but all women witnesses stated that after incident they became unconscious and regained senses in the hospital after some days. 'He should have sent crime empties straight to the Laboratory without waiting for recovery of guns to minimise chances of concoction. In this context reference can be made to the case of Muhammad Shafi and another v. The State P L D 1968 Lah. 869.

Apart from what is stated above there is still one other defect in the evidence of recoveries. Two licensed guns were recovered from Lemoon and Idrees on 14‑1‑1983 and one unlicensed gun was recovered from Jan Muhammad ort 16‑1‑1983. Exh. 32 shows that gun of Janoo was recovered from enclosure of his house, which is normally accessible to all. Secondly it is surprising that Janoo retained his licensed gun for production before police when two days earlier appellants Leemon and Idrees were arrested from same village Mir Khan Leghari and produced their licensed guns. This would at least put Janoo on guard to get rid of his unlicensed gun. On this account also recovery of Janoo is not free from doubt, Reference can be made to the case of Mujahid Hussain v. The State 1985 S C M R 1973. Three crime empties were recovered on 7‑1‑1983. Ballistic Expert's report Exh. 54 shows that parce4 were received in the laboratory on 21‑6‑1983 from Office of S.P. Nawabshah. Now when the last gun was recovered on 16‑2‑1983, where were these sealed parcels for six months and five days. Prosecution has to account for delay with satisfactory explanation to show that seals remained intact and parcels were not tampered with. In this context S.H.O. has deposed before the trial Court that he had submitted interim challan on 29‑1‑1983 and final challan on 14‑3‑1983. He could not give; reasons as to why parcels were not sent to the laboratory in time and stated that he proceeded on leave and then was transferred to Sukkur so he dial not know whether W.H.C. or his successor S.H.O. sent the parcels or rot. Then he shifted blame to W.H.C. for sending parcels to the office of S.P. for despatch to the laboratory. At another place in the evidence S.H.O. admitted that till his transfer sealed parcels were lying in the property room of S.P. After referring case diary No. 14 Fikra No. 2, dated 17‑2‑1983 S.H.O. remembered and stated that in fact he was directed by S.P. for making arrangements to send parcels to the laboratory. S.H.O. also admitted that he proceeded on leave on 23‑3‑1983. It is, therefore, clear that S.H.O. was negligent in not taking any steps to send the parcels to the laboratory for three months till he presented final challan with sealed parcels still not despatched to the laboratory. Delay of six months stands not explained and in the meantime sealed parcels could have been tampered with. Prosecution has failed to explain as to on what date parcels were sent to the office of Superintendent of Police arid in whose care and custody sealed parcels were all the time. For reasons aforesaid, I do not propose to rely upon report of Ballistic Expert.

Now in this case unfortunately, there is no independent corroboration available to supplement ocular evidence. Motive is double -edged weapon and cuts both ways particularly when there is a dispute between two parties and there is recorded enmity. If it can prompt accused to commit offence alleged, it can also tempt complainant party to involve accused falsely to increase their number. Medical evidence can be used as corroboratory evidence but is not corroboration qua accused to show his participation in the crime. Reference can be made to the case of Abdul Hameed and another v. The State 1985 P Cr. L. J. 1992. It is held in the case of Muhammad Afsar v. The Crown P L D 1954 F C 170 that if the Court is satisfied that statement of the witness is false in relation to some of the accused persons, that testimony becomes subject to reasonable doubt as against the remaining accused persons and that doubt cannot be satisfactorily resolved unless there be against each or all of accused persons, material corroboration from independent sources that he or they did participate in the crime.

There is no cavil about the proposition that during the appraisal of evidence, a tainted piece of evidence could be rightly accepted only when it is corroborated by another piece of evidence, then such other piece of evidence, which is to be used as corroboration, should be untainted because one piece of tainted evidence cannot corroborate another piece of tainted evidence. The rationale behind the argument is that if a particular piece of evidence is wanting in quality and is defective and, therefore, need is felt that it would be accepted only when there is corroboration then such corroboration should also come from a piece of evidence which is free from defect and is untainted otherwise the whole exercise would end in futility and would amount to saying that zero plus zero is equal to zero. In the case of Shah Ali and others v. The Crown P L D 1954 Sind 136, question arose for consideration that where there are different sets of evidence and neither of which alone can be accepted without corroboration, can each in turn be taken to corroborate the other and joined together justify the Court to act on such evidence. It was held that such sets of evidence, which require corroboration cannot corroborate each other and, therefore, cannot be legal basis for conviction. It was held in the case of Wazir Ali and others v. The State P L D 1960 Kar. 674 that one piece of weak evidence cannot corroborate another piece of weak evidence. It is highly unsafe, in fact dangerous, to base conviction oil an aggregation of such weak evidence. Reference can be made to the case of Barkat v. The State 1968 S C M R 685 and Muhammad Hussain and another v. The State 1982 P Cr. L J 888.

Keeping in view what is stated above, scrutiny of evidence in the instant case shows that each piece of evidence produced by the prosecution and sought to be relied upon is tainted, weak and defective hence no useful purpose will be served to get corroboration from other similar pieces of evidence. Mr. Muzaffar Hussain, A.‑G., Sind for State has not supported the impugned judgment and has conceded that it is a fit case for grant of benefit of doubt.

In the circumstances, my conclusion is that prosecution has failed in its duty to prove the case against appellants beyond shadow of doubt hence, giving benefit of doubt to them. I set aside their conviction and sentence and allow their appeal. They be set at liberty if not wanted in any other case.

S.A./I‑3/K Acquittal ordered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.