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Criminal Appeal No.3 of 1986, decided on 31st March, 1988.

---S. 302--Criminal Procedure Code (V of 1898), S. 417--Trial Court after thoroughly examining evidence of prosecution witnesses from all aspects reaching conclusion that they were not truthful witnesses and none of them was either present on spot at time of occurrence or had gone there soon after it--Finding of Trial Court regarding credibility of witnesses not suffering from any defect or infirmity and on the contrary based on sound and tangible groundsEvidence of the only eye-witness in the case not inspiring confidence and his deposition was nothing but a bundle of lies--Said eye-witness was introduced in the case at a very late stage during investigation period and he became eye-witness only due to his relationship with complainant and deceased--Evidence of said eye-witness was disbelieved by trial Court and evidence of other prosecution witnesses also suffering from infirmities and flaws--Witnesses stated that they had gone to house of deceased soon after occurrence and had also attended burial ceremony of deceased and were present when police had gone on spot after receiving information about incident, but they did not tell any relative of deceased or police about their having seen what they had stated before Court--Presence of witnesses at spot was thus rendered doubtful--Witnesses had only seen accused carrying a .12-bore gun in his hand and his brother standing there with his shirt torn and dead body of deceased lying there on floor--Possibility not ruled out that deceased might have been killed by brother of accused and accused had snatched away gun from him after his having fired at deceased--Held, after evidence of prosecution witnesses having been disbelieved, there was left nothing on record to base conviction of accused for commission of offence of murder--Acquittal of accused by trial Court maintained in circumstances.

---S. 302--Appreciation of evidence--Eye-witness--Evidence of a witness, who claimed to be an eye-witness of an occurrence of murder and was also related to deceased but did not disclose fact of his being an eye witness to above offence either to parents and relatives of deceased or to police for a pretty long time and remained mum, was not a reliable witness and it was most unsafe to base conviction of accused " on his evidence for a capital offence like murder.-[Witness].

M. Nisar Mirza, A . A .-G. for the State.

Khawaja Ali Muhammad for the Complainant.

M. Y. Surakhvi for Respondent.

--This State appeal is directed against the order and judgment of the Sessions Judge, Mirpur, passed on 20th April, 1986, whereby he acquitted Shabbir Hussain respondent in a case under section 302, Azad Penal Code.

2. The brief facts leading to the filing of this appeal are that on 11-5-1981, Mst. Aksar Jan PW made a written report Exh. D.A./1 to S.H.O. Police Station, Dadyal, containing information to the effect that her son Muhammad Rashid, deceased, aged about 12 years, wile playing, as usual, in the hall of residential house of his aunt Mst. Phullan Jan with the son of the said lady, Muhammad Shakeel, picked up a loaded .12 bore gun lying beneath the bed-sheet on the cot and started examining its barrel. The report contained further information that the deceased accidentally pulled the trigger of the gun which went off, as a result of which he sustained injuries on his forehead and died. She also made it clear in the report that the death of her son was accidental and she did not suspect anybody for causing this.

3. The proceedings under section 174, Criminal Procedure Code, were initiated by the Police on receipt of the above report. The dead body of the deceased was buried without conducting its post-mortem examination, on the permission granted by the Magistrate on the application of Muhammad Arshad, PW, the brother of the deceased, for the purpose on the ground of the death of the deceased being accidental.

4. The father of the deceased, Muhammad Sadiq, complainant, who returned home from England on being informed about the unfortunate incident, made an application Exh.P.A. to the Superintendent of Police, Mirpur alleging therein that Muhammad Rashid, deceased had informed his elder brother Muhammad Arshad, PW that the respondent was compelling him to allow him to commit sodomy with him, on which the said witness reprimanded the respondent and his brother Shakeel, who took ill of it. It was further alleged in the above report that on 11-5-1981, the respondent and his brother Shakeel took his son Muhammad Rashid, deceased, along with them to their house and killed him in one of its rooms by firing at him with a .12 bore gun.

5. On the above report, a case under section 302, Azad Penal Code was registered against the respondent and his brother Shakeel. The post-mortem of the dead body of the deceased was conducted by the Medical Officer after exhuming the same. The Police, after completion of the investigation, challaned only Shabbir Hussain, respondent, for the alleged murder of the deceased and the name of Muhammad Shakeel, accused was entered only in column No.2 of the challan as he had been released under section 169 of the Criminal Procedure Code.

6. The accused pleaded not guilty to the charge in his examination under section 242, Criminal Procedure Code. In support of its case, the prosecution examined Muhammad Sadiq, Mushtaq Hussain, Sakhi Muhammad, Shabbir Hussain, Arshad Mahmood. Mst. Aksar Jan, Munshi Muhammad Siddique, Patwari, Muhammad Bashir, Shabbir Ahmad, Head Constable, Doctor Muhammad lqbal, Asghar Ali Constable, Raja Abdur Razzaq Khan Inspector Police and Muhammad Zaman, Sub-Inspector. Muhammad Sadiq, P.W. deposed having made the report Exh.P.A. to the Superintendent of Police on 20-5-1981 and also supported the allegations made therein. Mushtaq Hussain, P.W. stated that at about afternoon, he had taken his ox to the pond of the village for watering where he heard noise from the house of Ajaib, the father of the respondent, to the effect "Don"t kill", after which he also heard a report of fire from the said house. He further deposed that on hearing the above noise and the report, he ran to the house of Ajaib where he found Mst. Phullan Bi weeping and the deceased lying dead on the ground with gun-fire injury while Shabbir, respondent and his brother Shakeel were standing there, the former carrying a .12 bore gun in his hands while the latter weeping with his shirt torn. He also stated that Sakhi Muhammad P.W. came there soon after Sakhi Muhammad P.W. deposed that about 7 to 8 months back, at about "Peshiwaila", he was taking his cattle to the pond for giving them water and that when he reached near the pond, he heard hue and cry from the house of Ajaib, on which he went there to find Muhammad Rashid, deceased, lying dead on the floor of one of its rooms and bleeding from gunshot wound. His further statement is that Shabbir Hussain, respondent, was standing there armed with a .12 bore gun while his brother Shakeel was weeping and his shirt was torn from the collar and pocket.

7. Shabbir Hussain, P.W"s. statement is to the effect that in the school, on the day of occurrence, the respondent-accused had asked Muhammad Rashid, deceased, to come to his house for taking a parrot and that when after the school hours, he and the deceased were playing under a tree, the respondent and his brother Shakeel came there and asked Rashid to come with them for taking the parrot. He further deposed that he and the deceased went along with them to their house where the deceased and Shakeel started grappling with each other, on which the respondent fired at the deceased with the gun, whereupon he (the witness) ran away from there. Arshad Mahmood P.W., brother of the deceased, made statement to the effect that 2 to 4 days before the occurrence, Rashid deceased had told him that the respondent and his brother, Shakeel, were forcing him to let them commit unnatural offence with him and that on the above complaint, he reprimanded them for their above misconduct. He further deposed that on the day of occurrence, the respondent and his brother Shakeel came to his house and took Muhammad Rashid, deceased, along with them to their house and that after a short time, on being informed that Muhammad Rashid had been killed, he and his mother went to the house of the respondent where they found the deceased lying dead on the floor of its room. Mst. Aksar Jan, P.W. has deposed that on being told that her son Rashid, deceased, had been murdered, she went to the house of Ajaib and found the deceased lying dead on account of gunshot wound on the floor in one of its rooms. She further deposed that she found Sakhi and Mushtaq, P.Ws. present there who, on inquiry, told her that Shabbir Hussain, respondent, had killed the deceased by firing at him. She denied having made report of the occurrence Exh.D.A./1 to the Police informing it about the accidental death .of her son. The other P. Ws. are only formal witnesses who have either witnessed the recovery memos or prepared the site plan or investigated the case.

8. The accused did not lead any evidence in his defence.

9. The trial Court acquitted the accused vide its order and judgment passed on April 20, 1986, giving the benefit of doubt to him. Hence this acquittal appeal.

10. I have heard the learned Counsel for the parties and have also gone through the record of the case. It is contended by the learned Counsel for the appellant that the allegation against the respondent of his having murdered Muhammad Rashid, deceased, stands proved by the evidence of Mushtaq, Sakhi Muhammad and Shabbir Hussain, P.Ws. but the trial Court has erred in disbelieving their evidence for no good reasons.

11. The learned Counsel for the respondent, on the other hand, has contended that the trial Court has rightly discarded the evidence of the above prosecution witnesses after discussing and examining the same and it cannot be said that their testimony has been ignored on any artificial or speculative grounds for which reason it needs re-examination by this Court.

12. I have given my due consideration to the above contentions of the learned Counsel for the parties in the light of the facts and circumstances of the case brought on the record. The fate of the prosecution case depends upon the evidence of Mushtaq, Sakhi Muhammad and Shabbir Hussain, P.Ws. If their statements are found to be true, then the case of the prosecution against the respondent that he has murdered Muhammad Rashid, deceased, stands proved but if their evidence is disbelieved, then there remains nothing on the record to base the respondent"s conviction thereon for the commission of the offence with which he is charged. In this case, the trial Court, after thoroughly examining the evidence of the above-named prosecution witnesses from all aspects, has reached the conclusion that they are not truthful witnesses and none of them was either present on the spot at the time of the occurrence or had gone there soon after it.

13. It is now established law that the appellate Court does not interfere in the acquittal order unless the findings of the trial Court are not reasonable or have been arrived at by disregard of the principles of evidence or misreading of evidence or are not supported by the facts in evidence and would draw its own conclusion only from the evidence if the reasons given by the trial Judge in support of its findings are speculative, artificial or the conclusions drawn by him are perverse or foolish. When this case is seen in the light of the above principles of law, it cannot be said that the findings of the trial Court regarding the credibility of the witnesses suffer from any of the above defect or infirmity and rather, on the contrary, they are based on sound and tangible grounds. Shabbir Hussain, PW is the only eye-witness in the case who has deposed to have seen the respondent killing the deceased by firing at him by gun in a room of his house. But his above evidence does not inspire confidence and the only conclusion which one comes to, after reading his evidence as a whole is that this witness did not witness the occurrence and whatever he has deposed, is nothing but a bundle of lies. He appears to have been introduced as an eye-witness at a very late stage during the investigation of the case and appears to have become eye-witness in it due to relationship with the complainant and the deceased. According to the Police version, he had got his statement recorded as an eye-witness of the occurrence on 6th June, 1981 while he himself has deposed in his statement that he had told about the occurrence only to his mother on the day of the occurrence and thereafter he had made the statement about it for the first time before the Court on being summoned by it for giving evidence. He is a relative of the complainant being his collateral and his mother is also a cousin of the mother of the deceased. Had he seen his close relative having been killed by the respondent, there appears no earthly reason of his not informing the mother and other relatives of the deceased about it on the very day of the occurrence, but he does not disclose the occurrence to anybody for a pretty long time. He also appears to be telling lie when he says that he had told his mother about having seen the occurrence. If he had told her mother about the respondent having fired at and killed the deceased, then it was but natural for his mother to have at least told her cousin, the mother of the deceased, about the cruel act of the respondent and thus the very fact that neither this witness nor his mother told anyone about the gruesome murder of the deceased by the respondent, goes to show that this witness is not truthful and has given evidence against the respondent on account of his relationship with the complainant and the deceased. The evidence of a witness who claims to be an eye-witness of an occurrence of murder and is also related to the deceased but does not disclose the fact of his being an eye-witness to the above offence either to the parents and relatives of the deceased or to the Police for a pretty long time and remains mum, is not reliable witness and it is most unsafe to base conviction of the accused on his evidence for a capital offence like murder. Thus, for the above reasons, his evidence has rightly been disbelieved by the trial Court.

14. After discarding the statement of the above eye-witness, the only evidence against the respondent remains that of Mushtaq and Sakhi Muhammad, PWs, who claim to have gone to the house of Ajaib from the village pond on hearing the hue and cry from the said house and seen the respondent there holding a .12 bore gun in his hand and his brother, Shakeel, standing there with his shirt torn from the collar and the pocket while Muhammad Rashid, deceased was lying dead there of the floor of one of its rooms. The evidence of these witnesses also suffers from the same nature of infirmities and flaws from which the evidence of the eye-witness in the case suffers and have been referred to above while examining his evidence. These witnesses are also related to the complainant and the deceased. Their homes are not very far off from the houses of the complainant and the accused-respondent. They admit that they had gone to the house of the deceased soon after the occurrence and had also attended the burial ceremony of the deceased and were also present when the Police had gone on the spot after receiving the information about the accidental death of the deceased, but they did not tell any relative of the deceased or the Police about their having seen what they had stated before the Court. It is not believable that if they had gone to the place of occurrence and had seen the respondent with a gun in his hand and the deceased lying dead on account of receiving gunshot wounds, then it was but natural for them to have informed about the. above facts to the relatives of the deceased soon after the occurrence and to .the Police when it went on the spot on receiving the report of the accidental death of Muhammad Rashid, deceased, and would not have awaited the arrival of the father of the deceased from abroad for doing so.

15. There are also other circumstances in the case which go. to show that these witnesses have not made true statements before the trial Court. There is an important contradiction in their statements Mushtaq says that Sakhi Muhammad PW had also come to the place of occurrence soon after him while the latter witness has stated that he had not seen Mushtaq Hussain on spot when he had gone there on hearing hue and cry. Had they gone to the spot soon after the occurrence, as they have stated, then the above discrepancy in their statements would not have occurred. The eye-witness in the case namely, Shabbir Hussain, PW, who remains at the place of occurrence for about 15 minutes, does not see these witnesses on the spot. Similarly, none of these witnesses states to have seen the above eye-witness on the spot on their arrival there. From the aforementioned statements of the prosecution witnesses the only thing that can be inferred is that Shabbir Hussain PW had not seen the occurrence while Mushtaq and Sakhi Muhammad PWs had not gone on the spot soon after the occurrence as is alleged by them. Even if, for the sake of argument, the evidence of Mushtaq and Sakhi Muhammad PWs is believed to be true, it does not prove that the respondent had killed the deceased by firing at him. They had only seen the respondent carrying a .12 bore gun in his hand and his brother, Shakeel, standing there with his shirt torn and the dead body of the deceased lying there on the floor. From the above evidence, the possibility is not ruled out that the deceased might have been killed by Shakeel, the brother of the respondent, and the respondent had snatched away the gun from him after his having fired at the deceased. This possibility is all the more present in view of the fact that according to the statements of the prosecution witnesses under discussion, the shirt of Shakeel was torn, which fact goes to show that some quarrel had taken place between him and the deceased. The evidence of the above witnesses has rightly been disbelieved and ignored by the trial Court.

16. When the truthfulness of the evidence of Shabbir Hussain, Mushtaq and Sakhi Muhammad, PWs is doubted and it is not believed, then there remains nothing on the record to base the conviction of the respondent for the commission of the offence of murder. The trial Court, therefore, has committed no illegality or irregularity in acquitting the accused-respondent vide its order and judgment impugned in this appeal.

For the reasons stated above, I find no merit in this appeal which is accordingly dismissed. The respondent shall stand discharged of his bail and surety bonds.

M.Y.H/345/H.A. Appeal dismissed.

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