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Petitioner: THE STATE VS Respondent: GHULAM AKBAR SHAH and 2 others
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi, Ch. Ghulam Sarwar Title: THE STATE vs GHULAM AKBAR SHAH and 2 others Case No.: Criminal Appeal No,107 of 1990 and Criminal Revision No,61 of 1992 Date of Judgment:1994-02-27 Reported As: 1994 MLD 1324 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.---This judgment shall dispose of Criminal Appeal No,107 of 1990 filed by the State and Criminal Revision No,61 of 1992 filed by Riaz Hussain Shah complainant challenging the acquittal of the respondents of the charge under section 302/34, P.P.C. 2. The proseytion case in brief as contained in the F.I.R. Exh.PG lodged by Riaz Hussain Shah complainant and recorded by Muhammad Bashir S.I./S.H.O. Is that on 13-2-1989 Riaz Hussain Shah and Fayyaz Hussain Shah, his brother, Muhammad Baqir, Mujahid Hussain Shah and Sajjad Hussain Shah sons of Sultan Ahmad Shah deceased and Sultan Ahmad Shah were travelling through a Bus No,7468/MND after attending hearing of a case under section 13 of the West Pakistan Arms Ordinance, XX of 1965 fixed on that day before the Illaqa Magistrate, D.G. Khan and when the bus stopped at Chowk Cement Factory at 5-00 p.m., Ghulam Akbar Shah, respondent who was also travelling in the same bus fired at Sajjad Hussain Shah deceased hitting him on his chest while Zafar Hussain Shah caused two injures and Amir Hussain Shah' inflicted three injuries to the deceased with Katies. Zafar Hussain Shah and Amir Hussain Shah also caused injuries to Sultan Ahmad Shah deceased and Fayyaz Hussain Shah P.W. Who made an attempt to catch hold of Amirb Hussain Shah. The two deceased succumbed to the injuries in the bus and the accused with their respective weapons decamped from the spot. 3. The motive for the occurrence was that one year before the occurrence Sultan Ahmad Shah and Sajjad Hussain deceased alongwith others murdered Gul Muhammad and Faiz Muhammad Shah, the real brothers of Ghulam Akbar Shah and Amir Hussain Shah and real uncle of Zafar Hussain Shah. The accused to take revenge of the two earlier murders committed the murder of Sultan
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Ahmad Shah and Sajjad Hussain Shah. The case was registered within one hour of the occurrence with Police Station Saddar, D.G. Khan. 4. Bashir Ahmad, S.I./S.H.O., P.W.8 with no loss of time reached at the spot and after preparing the injury statement and inquest report Exhs. PF/2 and PF/3 of Sajjad Hussain Shah deceased and that of Exhs.PE/2 and PE/3 of Sultan Ahmad Shah deceased despatched their dead bodies for post- mortem examination. He took into possession blood-stained earth from inside the Bus from two places and sealed the same vide memo. Exhs.PI and PJ. Two empty cartridges P.16 and P.17 were taken into possession by him from inside the Bus vide memo. Exh.PL. Bus bearing No,7486/MND and two blood-stained seats P.14 and P.15 were kept in custody vide memo. Exhs.PM and PK respectively. He arrested the respondents on 17-2-1989. Akbar Shah respondent while in custody led to the recovery of Pistol P.18 from inside the cluster of date trees on 19-2-1989 which was taken into possession vide memo. Exh.PN. Zafar Hussain Shah on the same day led to the recovery of blood- stained Chhurri P.19 from the bunches of date trees which was taken into possession vide memo. Exh.PO. The blood-stained shirt P.20 of Zafar Hussain Shah was taken into possession vide memo. Exh.PO. The Investigating Officer after completing the investigation, challaned the accused/respondents to face the trial. 5. Dr. Captain Ghulam Farid P.W.4 conducted post-mortem examination on the dead body of Sultan Ahmad Shah on 14-2-1989 and found the following injuries on his person: (1) A fire-arm wound 1" x 1" x chest cavity deep at the front of right chest in its upper part 4" above the right nipple. The edges of the wound are inverted, rough, torn and black. This was the entry wound. (2) 3 stab wounds at the backside of right chest in its middle 1/3rd in an area of 5" x 4" and each wound was measuring 1-1/4" x 1/3" x chest cavity deep running in various directions and the underlying ribs were cut. (3) An incised wound 1/2" x 1/4" x muscle deep at the right scapular region. (4) Incised wound 2" x 1/2" x bone deep at the occipital part of the head. ' In the opinion of the doctor the cause of death was shock and haemorrhage and injuries to the vital organs i,e, lungs, heart and paricoardium. The injuries were ante-mortem. Injury No,1 was caused with fire-arm while the rest were of sharp-edged weapon. Injuries Nos.1 and 2 proved fatal to the life and injuries Nos.3 and 4 were simple in nature. ' On the same day at about 11-30 a.m. He conducted autopsy on the dead body of Sajjad Hussain Shah deceased and found the following injuries on his person:--- (1) A fire-arm wound 1-1/2" x 1-1/2" into chest cavity deep at the front of right half of chest 2" above the right nipple. The edges of the wound were inverted, rough, torn and black. This was the entry wound. (2) A stab wound 1" x 1/3" x peritorium cavity deep at the right flank 4" lateral to the umblicous. (3) A stab wound 1-1/4" x 1/2" x peritorium cavity deep at the front-lateral aspect of right lower chest. (4) Two stab wounds each is 1-1/4" x 1/3" x chest cavity deep at the external area in its lower half at cardiac area. (5) A stab wound 1-1/4" x 1/2" x chest cavity deep on the front of right half of chest 2" medial to the right nipple. ' In his opinion the cause of death was shock and haemorrhage and injuries to vital organs i,e, lungs, heart and pleaura etc. Injuries Nos.1, 4 and 5 having proved fatal to life were sufficient to cause death in the ordinary course of nature whereas the remaining injuries were grievous in nature. Injury No,1 was caused with fire-arm while the rest were of sharp-edged weapon. 6. The prosecution examined eight witnesses in all to prove its case. Riaz Hussain Shah complainant P.W.6 and Fayyaz Hussain Shah P.W.7 the eyewitnesses of the occurrence, have given
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the detailed account of the occurrence as contained in the F.I.R. Bashir Ahmad, S.I./S.H.O., the Investigating Officer of the case was examined as P.W.8. Dr. Ghulam Farid who conducted autopsy on the dead bodies while appearing in the witness-box as P.W.4 furnished the medical evidence. The recoveries of crime empties from the bus and weapon of offence at the instance of accused were witnessed by Fayyaz Hussain P.W.7 and Bashir Ahmad S.I./S.H.O. P.W.8. 7. The accused/respondents in their statements under section 342, Cr.P.C. Denied the prosecution allegations and pleaded their false implication in the case due to enmity with complainant party on account of the charge of committing the murder of Gul Muhammad Shah and Faiz Muhammad Shah against the two deceased. They, however, did not produce any evidence in their defence. 8. The learned trial Court disbelieving the eye-witnesses being interested and inimical and doubting their presence at the spot with the observation that for no explanation, the evidence of independent witnesses available in the bus was withheld and that the eye-witnesses account being in conflict with the medical evidence concluding the failure of prosecution to prove the case against the accused, acquitted them of the charge of murders. 9. Mr. Talib Haider Rizvi, learned counsel for the petitioner in Criminal Revision 61 of 1992 argued that Sajjad Hussain Shah and Sultan Shah deceased were facing murder charge for committing the murder of Gul Muhammad Shah and Faiz Shah, uncle of Zafar Hussain Shah and brothers of Ghulam Akbar Shah and Amir Hussain Shah accused, thus in view of admitted enmity the discarding of evidence of eye-witnesses only on the ground of they being interested, without looking for independent corroboration, was not justified but the learned trial Court in disregard to the settled principle of appraisal of evidence ignoring important independent corroboratory evidence available on record in support of the eye-witness account connecting the accused with the commission of offence, acquitted them disbelieving the eye-witnesses. He vehemently contended that exclusion of the well-founded recovery evidence from consideration caused serious prejudice to the prosecution case. The recovery of pistol used by Ghulam Akbar Shah in the occurrence was recovered after the despatch of empties secured from inside the bus on the day of occurrence hence the recovery of crime empties and pistol with positive report having been proved beyond doubt providing a strong corroboration to the eye-witness account against Ghulam Akbar Shah was wrongly disbelieved. He contended that specific attribution of causing the injuries to the deceased with Katies by Zafar Hussain Shah and Amir Hussain Shah is also proved by the medical evidence and the recoveries of blood-stained knives. He commenting upon the ocular account submitted that presence of the P.Ws. Was neither unnatural nor unexpected in the bus as claimed by them, to be disbelieved and that non-production of any other person travelling by the bus including the bus driver and conductor as witness was neither necessary nor fatal to the prosecution case. He while summing up argued that the reasons given by the trial Court in favour of acquittal of respondents being perverse, unreasonable, artificial and not supported by the facts in evidence are not sustainable. 10. The learned AA.-G. Adopting the arguments advanced by the learned counsel for the complainant in criminal revision added that the learned trial Court unreasonably rejected the natural and sound evidence of eye-witnesses on flimsy ground and for the minor discrepancies, contradictions and irrelevant considerations. 11. Sardar Faiz Muhammad Khosa, Advocate for the respondents justifying the acquittal of respondents by the learned trial Court submitted that respondents having been not found guilty by the learned trial Court shall be considered innocent and their acquittal is not liable to be reversed unless it is shown that the reasons given by the trial Court were perverse and wholly illogical. He placing reliance on 1993 SCM R 305 submitted that the High Court in exercise of its jurisdiction under section 417, Cr.P.C. Is always slow to disturb the fmdings of facts unless fmds gross injustice to have been done. He, to substantiate his arguments raised the following contentions:
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(i) That the complainant undoubtedly being an illiterate person could not know number of bus but the same appearing in F.I.R. In English figures is a positive proof of recording the F.I.R. At the spot. (ii) That the injury statements prepared at the spot did not contain name of the assailants which is a strong circumstance to infer the registration of case after preliminary inquiry at the spot. (iii) That the injuries on the person of Fayyaz Hussain Shah P.W. Were superficial in nature as in case of an attempt to catch the Kati, the injuries should have been on the palm of the hand and not on the back which is also proved from the opinion given by the doctor that the injuries could have been with friendly hand. He submitted that the unexplained delay in post-mortem examination till next day, but the medical examination of Fayyaz Hussain Shah who allegedly received injuries during the occurrence, in the same night created serious doubt in the correctness of the prosecution allegations. (iv) That non-disclosure of complainant of the fire-arm injury of Sultan Shah in the F.I.R. And the fire-arm injuries on the person of two deceased being of different diamension suggesting the result of shot fired by different weapons, proved the concoction of the prosecution story. (v) That according to the eye-witness account, the assailants were on the left side of the two deceased sitting on their seats in the bus whereas as per opinion expressed by the doctor, the injuries were caused to the deceased from their right side. This version of the prosecution is belied by the medical evidence as Sajjad Hussain Shah after receiving fire-arm must be leaned towards front but in such position the injuries with Katis could not be caused in abdomen and chest., (vi) That the edges of the wounds without burning and clothes of the deceased having no blackening excluded the possibility of fire from a close range as narrated by the eye-witnesses. (vii) That the failure of the prosecution to produce on record the documentary proof of the date of hearing of the case under West Pakistan Arms Ordinance, 1965 against the deceased before a Magistrate, on the fateful day left the explanation of P.Ws. Of their travelling with deceased after attending the Court unproved. (viii) That the conclusion of the learned trial Court that the eye-witnesses being closely related to the deceased and inimical to the appellant were highly interested to be placed reliance without independent corroboration on a murder charge being unexceptional, the acquittal of respondents is not liable to be interfered with. He while summing up contended that the occurrence having taken place in the bus in presence of number of passengers but non-production of any independent person from bus as a witness coupled with the fact that the F.I.R. Spoke only one fire shot by Akbar Shah at Sajjad Hussain Shah and that despite the firing being taken place inside the bus, no one else having been injured, the trial Court committed no illegality in disbelieving the prosecution case. 12. We have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record carefully with their assistance. 13. There is no cavil to the proposition that to come to a correct conclusion, the trial Court has to sift the grain from the chaff by looking for trustworthy corroboratory evidence direct or circumstantial. However, the Appellate Court enjoys the same power of appraisal of evidence with certain guidelines that the due weight and considerations should be given to the findings of the trial Court in case of acquittal different to that of the approach in appeal against the conviction. The acquittal order carries with it the presumption of innocence till a person is found guilty whereas in appeal against conviction, the benefit of every reasonable doubt is to be extended to the accused. However, there shall be no presumption of innocence, if trial Court by misreading and disregarding the material evidence formed an opinion having no nexus to the facts and law of the case. The appellate Court undoubtedly will not interfere merely on the ground that the appraisal of evidence leads a conclusion different to that of arrived at by the learned trial Court, if both conclusions were possible in the circumstances of the case. However, the conclusion arrived at by the learned trial
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Court if could not possibly be drawn by a reasonable person and the acquittal is based on findings wholly artificial and ridiculous and the judgment of the trial Court if perverse, illogical and the evidence available on record does not lead to a decision other than the guilt of an accused, the High Court under section 417, Cr.P.C. With no restriction is empowered to undo the injustice done in the administration of criminal justice. 14. It is an admitted position that eye-witnesses in the present case are not only interested but also inimical towards the deceased and they are closely related to each other and with the deceased: Similarly the accused are related inter se and also with complainant party. Fayyaz Hussain Shah an injured witness who lodged the report of the occurrence and Riaz Hussain Shah, the other eye- witness narrating the occurrence supported the prosecution in tooth and nail corroborating each other on all material points. The relations between the parties were admittedly strained because of earlier murder of Gul Muhammad and Faiz Muhammad Shah, real brothers of Ghulam Akbar Shah and Amir Hussain Shah and uncle of Zafar Hussain Shah. Sajjad Hussain Shah deceased and his father Sultan Ahmad Shah deceased were accused in that case and the accused of present case were witnesses of the said case. With the background of this hostility, we following the settled rule of criminal law for the safe administration of justice in case of capital charge, that Court must look for the necessary corroboration before recording conviction, proceed to evaluate the evidence. ' Fayyaz Hussain Shah complainant, an eye-witness of the occurrence proved the recovery of two empty cartridges from inside the bus. These empties were made into sealed parcel at the spot by Bashir Ahmad S.I. P.W.8. The recovery of these empties and the sealing of the same into a parcel at the spot and their despatch before recovery of pistol P.18 from Akbar Shah remained unchallenged. The trial Court was misled in disbelieving these empties for the reason of not placing reliance on the evidence of Fayyaz Hussain Shah without taking notice of the fact that Bashir Ahmad S.I. P.W.8 also proved the recovery of the empties and further Fayyaz Hussain Shah undoubtedly accompanied Bashir Ahmad, S.I. To the spot after lodging the report. Bashir Ahmad S.I. Appears to be an honest witness, otherwise, he instead of Fayyaz Hussain Shah could easily cite any other person as recovery witness. Akbar Shah accused led to the recovery of pistol on the third day of his arrest which was secured into a sealed parcel and despatched to the office of Forensic Science Laboratory much later to the recovery and despatch of crime empties. The Fire-arm Expert vide his report Exh.PM find the two crime empties recovered from inside the bus to have been fired from the pistol recovered at the instance of Akbar Shah. The learned trial Court for no good reason failed to look for this reliable corroboration against Akbar Shah, through the recovery of pistol and the association of crime empty with it. ' Zafar Hussain Shah on 19-2-1989 got recovered blood-stained Chhuri P.19 from inside the Jhand after sixth day of occurrence which was secured into a sealed parcel by Bashir S.I. At the time of recovery in presence of Fayyaz Hussain Shah. Similarly, on the same day this accused got recovered his bloodstained shirt P.20 from his residential house. The Chhurri P.19 recovered from a Jhand at the instance of Zafar Shah was found stained with human blood. The recovery of weapon of offence with positive report of the nature of blood on it is unquestionable if the blood-stained weapon of offence i,e, Chhuri etc. Is concealed in a safe place immediately after the occurrence and is recovered later as such, the blood-remains intact, hence the positive report of Chemical Examiner and that of Serologist is a reliable corroborating evidence to be believed against the offender. The learned trial Court for good reason excluded this piece of evidence from consideration against Zafar Hussain Shah. However, blood-stained shirt P.20 allegedly belonging to Amir Hussain Shah got recovered by him from his house being not confidence inspiring has been rightly excluded from consideration. ' The trial Court proceeded to dwell upon the facts in evidence which according to it were of suspicious character. The motive was considered the first suspicious feature of the case which the
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learned trial Court did not believe with the observation that enmity being double-edged weapon cuts both the way. 15. According to the prosecution the motive for the occurrence was to take revenge of the murder of Gul Muhammad and Faiz Muhammad Shah, the real brothers of Ghulam Akbar Shah and Amir Hussain Shah accused and uncle of Zafar Hussain Shah. It is an admitted fact that Sultan Muhammad Shah and Sajjad Hussain Shah deceased were acquitted in the murder case of Gul Muhammad Shah and Faiz Hussain Shah whereas Akbar Shah and Amir Hussain Shah deceased were prosecution witnesses. Undoubtedly, motive in the case of admitted enmity if could be a reason to murder the deceased, it can as well be reason to charge accused falsely on suspicion by relatives of the deceased but this cannot be held invariably in each case without judging its own facts. In the present case, the respondents having enmity against the deceased undoubtedly had motive for the commission of offence. However, the motive is only helpful and relevant to form an opinion in proving the guilt and cannot itseff be an evidence to ,prove the charge, hence the motive on account of enmity being double-edged if doubted in such circumstances is neither fatal to the prosecution case nor beneficial to the accused, if the other evidence brought on record is of unimpeachable character. The motive in the circumstances was definitely with the respondents to take revenge of murder of Gul Muhammad and Faiz Shah their kith and kin and cannot be attributed to the complainant party to falsely implicate them. 16. The learned trial Court doubting the presence of eye-witnesses took it another suspicious feature of the case. ' The eye-witness account in the present case was furnished by Riaz Hussain Shah P.W.6 and Fayyaz Hussain. Shah P.W.7, close relative of the two deceased. They claimed to have accompanied the two deceased to the Court of Ilaqa Magistrate to attend the hearing of a case against the deceased under section 13 of the West Pakistan Arms Ordinance, 1965. The trial Court disbelieved the two P.Ws. On the ground that the prosecution has not established on record about the pendency of the case against the deceased and the date of hearing on the day of occurrence. The pendency of the case in question and its date of hearing cannot be a positive proof of presence or non-presence of the P.Ws. At the spot at the relevant time. The P.Ws. Being neither witnesses nor accused in the said case could not be marked present in the Court to suggest the date of hearing in the case as a conclusive proof of their presence at the spot. It is common in the village life that people do accompany each other to the Courts on the dates of hearing, therefore, non-proving the date of hearing of the case in question on the day of occurrence through official record could not be a ground to conclude the presence of P.Ws. At the spot to be unnatural or unexpected. The trial Court with no compelling and sound reasons doubted the presence of the P.Ws. At the spot. We are not impressed by the observation of the trial Court that the presence of the P.Ws. Was not established for want of proving the date of hearing in the case fixed for that day through documentary evidence. We are unable to subscribe to this view formed by the trial Court that no reliance can be placed on the testimony of interested witnesses vis-a-vis their presence in absence of the documentary evidence. The presence of the P.Ws. And participation of the accused in the occurrence was next doubted with the observation that the names of the accused were not mentioned in the injury statements Exhs.PE/2 and PF/2 but memos. Of last worn clothes Exhs.PB and PC prepared on the next day of occurrence and Exh. PI the memo. Of blood-stained earth prepared on 13-2-1989 contained the names of the accused. Admittedly, the injury statement, inquest report and the site plan prepared by the Investigating Officer are not substantive evidence to draw an adverse inference against the prosecution and in favour of defence. The non-mentioning of the names of the appellants or P.Ws. In such documents by the Investigating Officer cannot be a conclusive proof to doubt the presence of the witnesses and participation of accused in the occurrence. The police officer sometimes omit the names of the P.Ws. Or the accused from such
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document inadvertently and also purposely so it cannot be taken as a circumstance to disbelieve the presence of P.Ws. The presence of Fayyaz Hussain, an injured eye-witness was doubted on the basis of the opinion of doctor that the injury could be caused with friendly hand. This opinion was expressed in cross-examination in answer to a question which in no case can acquire the status of positive evidence of non-receiving the injuries in the occurrence. The doctor has given no reason that why this injury could not be caused by an inimical hand. This conclusion of the trial Court being highly presumptive and hypothesis in nature is not acceptable to mind, The report was lodged within half an hour of the occurrence disclosing all material facts of the case and detailing the injuries of the deceased and Fayyaz Hussain on right hand, who after lodging report was medically examined at 10-00 p.m. On the same day and Bashir Ahmad S.I. Before his medical examination prepared his injury statement and also took into possession bloodstained shirt P.3 of the complainant produced before him. The trial Court travelling on the basis of presumption of liar witnesses failed to weigh the realities of the occurrence deposed by the eye witnesses and instead gone on the hold that relation…
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