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Criminal Appeal No. 477 and Murder Reference No. 221 of 1970, decided on 5th February, 1973.

‑‑‑S. 302/34‑‑Ocular testimony, appreciation of‑‑Occurrence in house of complainant‑‑Complainant's brother also residing with him‑‑Accused armed with gun, shot at wife of complainant‑‑No previous enmity between parties‑‑Dispute over return of deceased woman allegedly purchased by complainant from accused‑‑Deceased sister‑in‑law of accused‑‑F.I.R. promptly lodged‑‑Eye‑witnesses apparently, natural witnesses but making certain improvements and alterations in their statements at trial‑‑No independent corroborative evidence on record supporting their testimony as to motive or incident itself‑‑Neither Nikahnama nor receipt of payment of money to accused for marriage of deceased with complainant, produced‑‑No witness to Nikah produced‑ Even person to whom complainant allegedly narrated incident immediately after occurrence, not produced‑‑Nobody from vicinity coming to spot on hearing gunshot‑‑Witness not answering to Court question as to presence of persons at nearby engine‑‑Complainant giving dishonest concession to co‑accused by stating at trial of his having muffled his face and by not identifying him‑‑Presence of other eye witness at spot also found doubtful‑‑Defence version plausible and equally likely‑‑Evidence of natural witnesses, held, could be relied upon without any independent corroboration but it had to be determined as to whether or not implicit reliance could be placed on word of such witness‑ Strong indications existed that witnesses were not telling whole truth and their testimony was not above board‑‑Prosecution case was not established beyond reasonable doubt from ocular testimony which was not corroborated by any independent piece of evidence‑‑Acquittal ordered in circumstances.

Inayat Ullah Cheema for D.M. Awan for Appellant.

Rafiq Malik for A.‑G. for the State.

Date of hearing: 18th January, 1973.

‑‑Alam Khan, aged 33 years was tried alongwith Akbar by the Additional Sessions Judge, Sargodha, for the murder of Mst. Amiran alias Miran, the wife of Muhammad Yusuf P.W.6. The learned trial Judge vide his judgment, dated 7‑7‑1970 acquitted Akbar (co‑accused), but convicted Alam Khan under section 302, P.P.C. and sentenced him to death. He has filed an appeal against his conviction and sentence. The matter has also been referred to us under section 374, Cr.P.C. for confirmation of the death sentence. We propose to dispose of the appeal as well as the murder reference by a single judgment.

The occurrence took place in the early hours of the night between 13/14‑1‑1968 in the house of Muhammad Yousuf (P.W.6), complainant, in the area of Municipal Waterworks of Sargodha Town. The F.I.R. Exh. P.B. was lodged by Muhammad Yusuf P.W. (since the original F.I.R. Exh. P.B was ineligible, another copy of the F.I.R. was attached with file, which is Exh. P.B./1. The distance between the place of occurrence and the police station given in the F.I.R. is 4‑1/4 miles.

2. The facts according to the F.I.R. are briefly that Muhammad Yusuf P.W.6 was employed in the Waterworks of Municipal Committee, Sargodha, as a keyman and used to reside in a quarter in the same area. His brother Ghulam Yasin P.W. 7, who was employed in the Ford Tractors Workshop, also lived with him in the same quarter. Akbar co‑accused, who was employed as a Chowkidar at the Waterworks was known to Muhammad Yusuf P.W.6. Alain Khan appellant, a resident of village Jhatla Tehsil Talagang in District Campbellpur came to visit Akbar co‑accused. Muhammad Yusuf P.W. 6 also met him. Alam Khan appellant accompanied by a woman called Mst. Amiran alias Miran, who was the sister of his (Alam Khan appellant). Both Akbar and Alam Khan told Muhammad Yusuf P.W.6 that Mst. Miran wanted to get married and assured him that she was not previously married to any one. Alam Khan wanted Rs.560 for giving her in marriage. Muhammad Yusuf P.W. 6 paid the amount and got married to her. The Nikah' was performed by Maulvi Gul Muhammad in the presence of Muhammad Nawaz, Member Union Council, Hakim Khan, Lambardar and Dost Muhammad, an uncle of Muhammad Yusuf P.W. Mst. Miran then took up her residence with Muhammad Yusuf P.W. After about a month Alam Khan appellant approached Muhammad Yusuf P.W.6 and informed him that Mst. Miran was already married (to one Mansab) and that she had to return. Muhammad Yusuf (P.W.6), however, did not agree. Alam Khan appellant is said to have resented this. At about 4 a.m. on the night between 13/14‑1‑1968 Alam Khan and Akbar came and knocked at Muhammad Yusuf s door and when the latter opened the door both of them came in. Alam Khan appellant was armed with a gun (Akbar co‑accused is not said to have been armed). Both of them told Muhammad Yusuf P.W.6 to send Mst. Miran with them. They also threatened him with dire consequences in case he did not comply with their demand. Muhammad Yusuf P.W., however, refused to send her. Mst. Miran (deceased) also showed her unwillingness to go with Alam Khan. On this Alam Khan appellant fired a shot at Mst. Miran hitting her on the left side of the chest. She fell down and became unconscious. Both the accused then ran away. The incident was also seen by Ghulam Yasin P.W.7, the brother of the complainant, who lived with him. They, however, did not chase the assailants due to fear. After sometime Muhammad Yusuf P.W.6 went to the bungalow of Muhammad Ashraf, the Superintendent of the Waterworks, and informed him of the incident. Mst. Miran was then taken to the hospital in the car belonging to Muhammad Ashraf. She, however. died within 10 minutes of arrival at the hospital. Thereafter, Muhammad Yusuf P.W.6 proceeded to Police Station City Sargodha where he lodged the F.I.R. at 6‑20 a.m. on 14‑ 1‑ 1968. It was recorded by Ch. Ibad Ali, S.I., P.W.8. After recording the same the S.I. proceeded to the hospital where the dead body of Mst. Miran was lying. He prepared the inquest report and the injury statement in respect of the dead body and sent it for post‑mortem examination. He then inspected the spot and took blood‑stained mattress P.8 and lantern P.9 into possession vide memo. Exh. P.A. This lantern is said to have been burning at the time of the incident, as result of which the witnesses were able to see the incident and identify the two assailants. At the time of his arrest Alam Khan appellant is said to have produced a single barrel gun P.5 alongwith a licence P.6 and a packet P.7 containing 23 live cartridges.

3. Dr. Ashfaq Ahmad, Medical Officer, District Headquarters Hospital, Sargodha, P.W. 1, who performed the post‑mortem examination on the dead body of Mst. Miran on 14‑1‑1968 at 2‑30 p.m. found sixteen wounds of entry on the left lower chest and upper left abdomen of the deceased 5" below the left nipple. They had spread in an area of 5" x 3‑1/2". The wounds were of various sizes, with blackened and inverted edges. There were two other wounds of entry on the right side of middle portion of her abdomen 7‑1/2" below the right nipple. Their edges were also blackened. There was one wound of exit 1/4" x 1/6" on the right lumber region.

During the autopsy 16 pellets and 3 pieces of corks or wads were recovered from the body. The stomach was healthy and empty except two ounces of semi‑fluid mucoid secretion. The doctor opined that the distance between the gun and the deceased at the time of firing was about 3 feet or so.

4. After the completion of the investigation Ch. Ibad Ali (P.W.8) challaned both the accused. They were ultimately committed to stand their trial before the Court of Session.

5. At the trial the prosecution produced eight witnesses and relied mainly on the ocular testimony of Muhammad Yusuf (P.W.6) and his brother Ghulam Yasin (P.W.7), the evidence of motive, as given by Muhammad Yusuf complainant himself, and the medical evidence.

6. The accused when examined, denied their guilt and pleaded innocence. Alam Khan appellant admitted that the deceased was his wife's sister. He, however, denied having sold her and explained the case as followed:‑‑

"Yousuf P.W. had abducted Mst. Miran deceased from the house of her husband Mansab. I had been trying for her restoration to her husband and, therefore, Yusuf P.W. was annoyed with me. He falsely implicated me in this case."

7. We have heard the learned counsel for the appellants as well as the learned State counsel and have also gone through the entire evidence with their help. On the face of it, it appears to be a very simple and water tight case for the prosecution. This appellant had come, armed with a gun, into the house of Muhammad Yusuf (P.W.6) and shot his wife dead in his presence. His (Muhammad Yousuf s) brother Ghulam Yasin (P.W.7), who lived with him also saw the occurrence in the light of the lantern P.9, which was burning at that time. Muhammad Yusuf (P.W.6) took Mst. Miran (deceased) to the hospital where she succumbed to her injuries. He then promptly lodged the F.I.R. clearly naming Alam Khan as the person who fired the fatal shot. He (Muhammad Yusuf P.W.6) is not said to have had any previous enmity with Alam Khan appellant except that the latter had been trying for the restoration of Mst. Miran to her husband Mansab, which was resented by Muhammad Yusuf P.W. Under these circumstances, it could be argued that there being no enmity between the appellant and the eye‑witnesses (who are natural witnesses of the occurrence), there is no reason for disbelieving their testimony and that the prosecution case, therefore, stood established.

8. However, on carefully going through the statements of the two eye witnesses, we find that the matter is not as simple as that and there are strong indications that the eye‑witnesses are not telling the whole truth and have made certain improvements and alterations in their statements at the trial, which indicate that their testimony is not as above‑board as the prosecution would like us to consider.

It may be mentioned that in this case, there is admittedly no independent corroborative evidence whatsoever on the record to support the testimony of the eye‑witnesses either with regard to the motive or the incident itself. Neither the Nikahnama, nor any receipt for the payment of the money for the alleged Nikah for any of the witnesses before whom the Nikah was performed, has been produced by the prosecution. Even the Maulvi who is said to have performed the Nikah has not been produced. It is alleged that shortly after the occurrence Muhammad Yusuf (P.W.6) went: to the bungalow of Muhammad Ashraf Superintendent Waterworks and informed him about the occurrence and obtained his car for taking Mst. Miran to the hospital. Muhammad Ashraf's bungalow is admittedly situated at a distance of only 100 yards from the complainant's quarter. This gentleman too had not been produced to support the complainant's version. Another surprising fact is that admittedly there were other persons residing near the complainant's quarter. He has admitted that there was an Engine Room at a distance of 50 yards and it had a telephone. He has also admitted that he had "remained puzzled for about an hour or two, before contacting Muhammad Ashraf". It is, however, surprizing that during this period none of the persons living in the vicinity came to his quarter on hearing the report of gun. This appears to be highly improbable and it can safely be assumed that it being an inhabited area a number of persons must have turned up to find out what had happened. Muhammad Yusuf (P.W.6) appears to have realised this flaw in his story. During the examination of this witness the trial Judge asked him as to how many persons were on duty in the Engine Room (situated at a distance of 50 yards from the spot) at the time of the occurrence, but the witness refused to answer the question. The question and the answer have been recorded by the learned trial Judge as follows:‑‑

"Q. How many persons were on duty in the Engine Room at the time of occurrence or thereafter

A. The witness does not give any answer:"

This is certainly not the conduct of a truthful witness. Other indications to the effect that he is not a truthful witness are also present on the record, e.g. while in the F.I.R. he had stated that after his marriage with Mst. Miran Alam Khan appellant had again come to him and told him that the girl was previously married, that he demanded her return and that he (Muhammad Yusuf P.W.6) refused to comply with this demand. In fact it is this refusal on Muhammad Yusuf's part which had given rise to the resentment because of which Alam Khan appellant ultimately came armed with a gun and committed the offence. At the trial, however, Muhammad Yusuf (P.W.6) has completely denied his having said so in the F.I.R. and has taken up the position that after the marriage, the night of the occurrence was the first occasion on which Ala m Khan appellant had come to his house to ask for the restoration of the girl. The reason for his suppressing the earlier demand made by the appellant for the return of the girl is obvious, because if Muhammad Yusuf (P.W.6) admitted that Alam Khan appellant used to make this demand, it could be argued that he should have at once understood or sensed the appellant's reason for coming to his house, armed with a gun at such an odd hour and that he (Muhammad Yusuf P.W.6) would certainly have raised a hue and cry to attract people living nearby. Another indication of the fact that he has no respect for truth is that while in the F.I.R. he made no mention that anyone of the two intruders had muffled his face, at the trial he made a brazen admission in favour of Akbar co‑accused, when cross‑examined by the latter's counsel and said that he (Akbar co‑accused) had wrapped his face in a Chaddar and that only his neck and nose were visible. He then went on to say that he could not identify Akbar co‑accused but had only guessed his identity.

His brother Ghulam Yasin (P.W.7) is said to have been residing with him at the relevant time and is also said to have witnessed the entire occurrence. He, however, admitted that he was unmarried, that he worked at a factory, which was at a distance of one mile from the quarter of Muhammad Yusuf (P.W.6) and that his (Ghulam Yasin P.W.7) parents resided in Chak No. 16‑Risala, which is also situated at a similar distance. Normally he should be living with his parents rather than with his brother. But even if it be argued that there was nothing strange in his preferring to live with his brother instead of his parents, it is strange that although the quarter in question consisted of two rooms (Ghulam Yasin P.W.7) was sleeping in the same room as his brother and sister‑in‑law (see the site plan Exh.P.C./1). Being a bachelor it can be safely presumed that if he was residing with his married brother then in the natural course of events he would be sleeping in a separate room. We are inclined to feel that he was not present at the spot but was named in the F.I.R. by Muhammad Yusuf (P.W.6), being sure that his brother shall support him.

10. No doubt Muhammad Yusuf (P.W.6) could be termed as natural witness and strictly speaking the law does not make it incumbent upon Courts to seek corroboration before relying on his testimony, yet since the life of a person hangs on his words, his testimony has to be scrutinised with the great care in order to eliminate all possibility of doubt and it has to be determined as to whether or not he is a witness on whose words implicit reliance can be placed without any independent corroboration. Same is the position of the testimony of Ghulam Yasin (P.W.7). However, for the reasons mentioned in paragraph No. 7 above, we feel that they are not such witnesses and notwithstanding the fact that, on the face of it the prosecution story is an extremely simple one and only one person has been attributed the fatal shot, we are not inclined to hold that the same stands established beyond reasonable doubt from the statements of these two witnesses, which are not corroborated by any independent and positive piece of evidence.

11. The defence version is quite plausible and it is equally likely that Mst. Miran (deceased) could not get on with Muhammad Yusuf (P.W.6) and herself insisted on going back with Alam Khan appellant, that this dispute had been going on for sometime and that on the night of the occurrence Muhammad Yusuf (P.W.6) himself shot her dead in a fit of anger and then, to save himself, falsely named Alam Khan as the assailant. No doubt there is no clear‑cut allegation of the existence of previous enmity between him and Alam Khan appellant but when his own skin was involved and he had, per force, to name someone else. Alam Khan appellant was obviously the most convenient person to be named as the assailant, as a motive could also be alleged against him. It is therefore, quite possible that to save himself he cast all scruples to the winds and named Alam Khan as the culprit and named his own real brother as the only other person who had witnessed the occurrence.

However, we need not go into the correctness or otherwise of the defence version because, as already observed, we find that the case against the appellant does not stand established beyond reasonable doubt through the evidence produced by the prosecution.

12. As a result of the above discussion, we accept the appeal and acquit the appellant. He should be set at liberty unless he is wanted in some other case.

This also disposes of the appeal as well as the murder reference,

S.A./A‑67/L Appeal accepted.

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