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Petitioner: MUHAMMAD KHAN VS Respondent: THE STATEHonorable Justice MUHAMMAD SIDDIQGhulam Hussain Butt,Mian Nusrat Ullah
1968 P Cr
1968 P Cr. L J 1808
[Lahore]
Before Sher Bahadur Khan and Muhammad Siddiq, JJ
MUHAMMAD KHAN AND 4 OTHERS --Convict--Appellants
Versus
THE STATE--Respondent
Criminal Appeal No. 252 of 1966, decided on 15th May 1968.
(a) Penal Code (XLV of 1860),
S. 302--Murder-Prosecution evidence, neither believable nor unbelievable-Medical evidence not supporting ocular evidence-Motive evidence, basis of whole story, doubtful---Eyewitness testimony not accepted by trial Court with regard to some of accused-Cannot, without corroboration, form basis of conviction against remaining accused-Accused given benefit of doubt and acquitted.
(b) Witness---
Credibility of witness---Not divisible---Eye-witness testimony not accepted with regard to some of accused---Cannot without sufficient corroboration, form basis of conviction against remaining accused.
Muhammad Faiz Bakhsh v. The Queen P L D 1959 P C 24 and Ahmad Khan v. The State P L D 1962 Lah. 390 ref.
Ghulam Hussain Butt for Appellants.
Mian Nusrat Ullah for the State.
JUDGMENT
MUHAMMAD SIDDIQ, J.-Muhammad Khan (28 years) and his four brothers, Muhammad Din (40 years), Roshan (35 years), Muhammad Hussain (32 years) and Ahmad Din (30 years) were tried along with their paternal uncle's son Mustafa and party-men, Nazir, Talib Sharif and Bashir, under sections 148 and 302/325 and 323 read with section 149, P. P. C. for having formed an unlawful assembly on the 29th of May 1964, at about 5-00 p.m. and for having, in prosecution of the common object of the said assembly committed the murder of Sharif and inflicted grievous and simple injuries on Muhammad Sharif (P. W. 13), Hakim Ali (P. W. 14) and Mst. Taj Begum (P. W. 17) near Gujrat Bus Stand in village Awan Sharif, Police Station Karianwala, District Gujrat. The five appellants were convicted under section 302/140, P. P. C. and sentenced to transportation for life. Their five co-accused were given the benefit of doubt and acquitted. The five appellants have now come in appeal to challenge their convictions and sentences.
2. According to the prosecution Muhammad Sharif (P. W. 13) was employed as supervisor at the Adda of the Gujrat Bus. At about mid-day on the 29th of May 1964, Muhammad Khan appellant, who along with his brothers, belongs to the nearby village Ahi, in Azad Kashmir and who had been challaned for theft, approached Muhammad Sharif P. W. and asked him to use his good offices so that the two prosecution witnesses against him from the village of Muhammad Sharif P. W., namely, Fazal son of Noor Din and Mst. Halima wife of Muhammad Alam may not support the prosecution case against him. Muhammad Sharif. P. W. pleaded his inability in the matter which led to an altercation and Muhammad Khan abused him and left the place threatening to teach him a lesson. At about 5-00 p.m. that evening he came along with the four co-appellants and the five acquitted accused, when the said Muhammad Khan and Muhammad Din appellants were armed with hatchets and the three remaining appellants along with the acquitted accused were armed with sticks. A little earlier Muhammad Sharif P. W. had left the bus-stand for urination at some distance. The appellants and the acquitted accused went in that direction and Roshan appellant threw a stone at Sharif P. W. which hit him on the forehead and he started bleeding. On seeing the assailants Sharif deceased who was a Chaukidar at the bus-stand, his brother, Hakim Ali (P. W. 14), Muhammad Anwar (whose statement in the Court of the Committing Magistrate was transferred to the Sessions file as P. W. 19), Niaz Ali (P. W. 15) and Abbas Khan (P. W. 16) rushed from the bus-stand to rescue Muhammad Sharif P. W. Sharif Chaukidar (deceased) advanced towards the assailants. Muhammad Khan appellant gave him 'a hatchet blow on the neck which felled him to the ground. Thereafter, the present appellants continued to inflict injuries on him with their weapons, Hakam Ali, brother of the said Sharif tried to rescue him and was given a lathi blow by Mustafa (acquitted accused), Mst. Taj Begum (P. W. 17) who had come to throw away the refuse in the manure pit, also raised a hue and cry and was given stick blows by Sharif and Bashir (acquitted accused). Nazir and Talib (acquitted accused) continued to incite their companions to finish Muhammad Sharif as well. Sharif Chaukidar died at the spot. Muhammad Sharif P. W. lodged the first information report (Exh. P. E.) on the same day at 8-00 p.m. at Police Station Karianwala which was seven miles from the place of occurrence.
3. Sub-Inspector Muhammad Bashir (P. W. 20) recorded the F. I. R. and proceeded to the spot. He took into possession from the spot the blood-stained earth and sealed the same into a parcel, which, according to the report of the Chemical Examiner was found to be stained with human blood but the Serologist could not trace its origin as the blood-stains had disintegrated. He prepared the necessary injury statement in respect of Sharif, deceased and the three injured, namely, Sharif, Hakam Ali and Mst. Taj Begum P. Ws. he also prepared the inquest report in respect of Sharif deceased and sent the dead body to the mortuary. Ahmad Din appellant had absconded and was declared a proclaimed offender. He was arrested on the 4th of July 1964.
4, Doctor Zulfiqar Hyder (P. W. 1) performed, on the 30th of May 1964, at 3-30 p.m. the post-mortem examination on the dead body of Sharif and found the following injuries:-
(1) A contused wound 1 " x " x scalp deep on the left surface of the head in interior half, antero-posterior in direction.
(2) A contusion mark, 3 " x 1", on the right half of the head surrounded by swelling, 5" x 2 ".
(3) A stab wound, 1 " x " x ", on the left surface of the jaw near the chin, with the underneath complete fracture of the jaw.
(4) A contusion mark, 3 " x ", on the left surface of the neck transverse in direction in upper one-fourth.
(5) Multiple abrasion, 3" x 1", in area on the left surface of the neck, just below injury No. 4.
(6) An abraded contusion mark, 1/2 " x 1", on the back of left shoulder.
On dissection he found as follows:-
The scalp was injured by injuries Nos. 1 and 2. A big haemotoma under the scalp on the right half was present in area, 5" x 2 ". The scalp had a complete linear fracture of the top entering from the right middle fossa to the left middle fossa. Linear fracture was extending interiorly from the right half of the previous fracture to the frontal bone, by the above mentioned fracture. Both parietal bones frontal bone and both temporal bones were fractured. A big quantity of dark coloured clotted blood was present.
In the doctor's opinion injury No. 3 was caused by a sharp-edged pointed weapon while the other injuries were caused by a blunt weapon. All the injuries were sufficient to cause death in the ordinary course of nature.
5. On the same day at 6-30 p.m. the same doctor examined Hakam Ali P. W. and found on his person the following injuries:
(1) A contused wound, 1" x " x scalp deep on tile right half of the forehead with underneath deframed fracture of the frontal bone.
(2) A contusion mark, 6" x 1", on the right half of the back of lumber region.
Injury No. 1 was declared grievous after X-ray report and injury No. 2 was simple. Both were caused by a blunt weapon.
6. Lady Doctor Zubeda (P. W. 2), medically examined Mst. Taj Begum (P. W. 17) on the 30th of May 1964, at 5-45 p.m. and found the following injuries on her person:-
(1) A contusion, " x 1/12", on the palm of left hand.
(2) A swelling, 2" x 2 " round on the right ring finger.
(3) A swollen bruise, 4" x 3", on the anterior aspect of right forearm.
(4) A bruise, 5" x. 3", on the right thigh.
Injury No. 2 was grievous while the remaining were simple and all were caused by a blunt weapon.
7. Doctor Ataur Rahman (P. W. 3) medically examined Muhammad Sharif P. W. on the 30th of May 1964 at 7-2J a.m. and found on his person a lacerated wound, 2" x " x bone deep on the left side of the forehead. The injury was simple and could, in the doctor's opinion, be caused by a stone hitting the forehead.
8. The prosecution relied at the trial on the eye-witness testimony of Muhammad Sharif (P. W. 13), Hakam Ali (P. W. 14), Niaz Ali (P. W. I5), Abbas (P. W. I6), Mst. Tai Begum (P. W. 17) and Muhammad Anwar (P. W. 19). The witnesses were somewhat interested but not shown to be inimical towards the appellants three of them, namely, Muhammad Sharif, Hakam Ali and Mst. Taj Begum had themselves received injuries which could not be shown to be self-inflicted or self-suffered. Muhammad Sharif and Muhammad Anwar (who seas allegedly murdered) speak of the motive for the murder, namely, the altercation which took place a few hours before the occurrence between Muhammad Sharif R. W. and Muhammad Khan appellant.
9. The appellants generally denied the prosecution allegation against them and stated that they had been falsely involved due to their enmity with thee P. Ws. They did not produce any evidence in defence.
10. The prosecution in this case relies on the eye-witness testimony of Muhammad Sharif J' W. 13 (employer of Sharif deceased), Hakim Ali P. W. 14 (brother of the deceased), Niaz Ali P. W. 15 (from tile brotherhood of Muhammad Sharif P. W. Abbas Khan P. W. 16 (paternal cousin of Muhammad Sharif P. W.) and Mst. Taj Begum (P. W. 17), a relation of Abbas Khan P. W. Out of these P. Ws., Muhammad Sharif, Hakim Ali and .list. 7 aj Begum bore injuries. The statement of Muhammad Anwar (P. W. 19) was transferred from the Court of the Commit ting Magistrate under section 33 of the Evidence Act as he had been murdered before the start of the trial in this case. According to the learned trial Judge, "the eye-witnesses in this case all appear to be somewhat interested". He also did not place reliance on the testimony of Anwar P. W. who had not been cross-examined and who had previously been challaned under section 366, P. P. C. According to Muhammad Afzal. District Inspector of Police. (P. W. 18), Sharif, Bashir and Talib accused were, according to the investigation, found to be innocent. Nazir and Talib had been attributed a mere lalkara and Mustafa accused who had been attributed the blow to Hakim Ali P. W. had, according to Barkat Ali (P. W. 8), been concerned in concealing Kist. Inayat, sister of Hakim Ali P. W., after her abduction. According to the learned Additional Sessions Judge "the possibility of false implication cannot be ruled out in regard to the other accused also of this case." The Court, however, gave full weight to the fact that Muhammad Sharif, Hakim Ali and Mst. Taj Begum P. Ws. had all been injured. The trial Court, after these observations, gave the benefit of doubt to Mustafa, Nazir. Talib, Sharif and Bashir accused and acquitted them. The Government has not appealed against their acquittal and has thus accepted the assessment of tile prosecution evidence vis-a-vis, the acquitted accused. ,
11. The question that remains for consideration is, as to whether the conviction of the present appellants call be upheld on the same evidence when there is no additional evidence to corroborate the prosecution evidence with regard to their guilt. The principle of law is firmly established that the credibility of) a witness is not divisible. It was laid down in Muhammad Faiz Bakhsh v. The Queen (P L D 1959 P C 24) that "the credibility of witnesses) could not be treated a, divisible and accepted against one and rejected against the other". It was again laid down in Ahmad Khan v. The State (P L D 1902 Lah. 390) that "when prosecution witnesses are discredited in respect of the majority of the accused, it will not be safe to believe their evidence to respect of the remaining accused unless there is some independent corroboration in respect of each of tile accused " In the present case, the prosecution evidence has been discredited with regard to the five acquitted accused, out of whom Mustafa had allegedly given the blow to Hakim Ali P. W., and Sharif and Bashir had similarly given the lathi blows to Mst. Taj Begum. The statements of these two injured witnesses have not been accepted with regard to the guilt of their own respective assailants. As regards Muhammad Sharif P. W., it is to be borne in mind that the whole case is claimed to have started because of the altercation and exchange of abuses earlier that day, between him and Muhammad Khan appellant. Muhammad Khan then came in the afternoon accompanied by nine others (including four real brothers) and was himself along with his brother Muhammad Din, armed with hatchets, while the rest of the assailants were armed with dangs. They had come from a neighbouring village in Azad Kashmir. They seem to have come to the bus-stand, where Muhammad Sharif P. W. was not found as he had gone to the fields for urination. The assailants might have then ascertained from that place as to where Muhammad Sharif P. W. had gone and then came to launch an attack against him at a distance of about two killas from the bus -stand. All this gives the impression that Muhammad Sharif P. W. should have had a very strong deal from the assailants. What is disclosed by the prosecution instead is, that Roshan appellant had thrown a stone at him from some distance, which had hit him on the forehead. Thereafter, Sharif Chaukidar of the bus-stand, tried to intervene and the whole attack was con centrated on him which resulted in his death at the spot. Muhammad Sharif P. W. claims to have remained at the spot all the time. The question as to why he was not touched at all, after the first stone-throw, has remained unanswered. It is also not explained as to who had, at the bus-stand, given the particulars of Muhammad Sharif P. W. to the assailants and why he bad given those particulars when the assailants were so heavily and threateningly armed and how it had occurred that Sharif Chaukidar of the bits-stand was able to reach the spot at a distance of two killas from the bus-stand, to bear the brunt of the whole attack. According to the prosecution, there were also two booking clerks at the bus-stand of Muhammad Sharif P. W. and at least one of the neighbouring shops was occupied. The said shopkeeper and the booking clerks have not come tip to assist the prosecution.
12. In addition, the medical evidence is not supporting the eye-witness testimony. According to the F. I. R. two of the appellants namely, Muhammad Khan and Muhammad Din were armed with hatchets, while the rest were armed with lathis. After the stone-blow to Muhammad Sharif P. W. by Roshan, the main attack was directed against Sharif deceased, who according to the F. I. R. received a hatchet blow from Muhammad Khan on his neck as a result of which he fell down, and there after he received blow from Muhammad Din appellant with his hatchet and from Muhammad Hussain, Ahmad Khan and Roshan accused with their dangs. According to the medical evidence, Sharif had received, in all, six injuries, out of which injury No. 3 was a stab wound, while the remaining injuries had been caused by some blunt weapons. When the assailants are alleged to have come armed with hatchets etc., the natural expectation is that they would use the sharp side of the weapon, unless there is any indication to the contrary. There was no suggestion in the F. I. R. that the assailants armed with hatchets, had used their weapons from the blunt side. An effort was made to connect injury No. 3. with the hatchets but without success, because a stab wound cannot be caused by a hatchet, and there is nothing to indicate that the hatchets, in this case were of some unusual type.
13. Since the medical evidence was not supporting the story of the assault as disclosed in the F. I. R., the eye-witnesses P. Ws. have tried to modify their testimony to fit in with the medical evidence in the case. It was claimed at the trial that the hatchets were used from the blunt side. It was also claimed that the hatchet of Muhammad Khan had a pointed end and that he had, after using the same, pulled it out with some force (vide P. W. 3). It was a clumsy effort to make out a case of stab wound for the injury caused by a hatchet.
14. The result is that the prosecution evidence cannot be believed as well as disbelieved at the same time. The medical evidence does not support the ocular testimony, and the ocular testimony, has tried to fall in line with the medical evidence and the eye-witnesses have come in aid of the prosecution by way of apology. The fact that Muhammad Sharif had escaped with only a stone injury on the forehead, makes the motive evidence doubtful and the whole story of the occurrence has been built up on the motive evidence. In our opinion, the eye-witness testimony, which has not been accepted by the trial Court in very material particulars with regard to the five acquitted accused, cannot without sufficient corroboration, form the basis of conviction against the present appellants especially, when the medical evidence is not in line with the ocular testi mony. We, therefore, give the benefit of doubt to the present) appellants, accept their appeal, and set aside their convictions as well as the sentences awarded to them. They are ordered to be set at liberty at once provided they are not required to be detained in some other case.
Appeal accepted.