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Petitioner: SHAH MUHAMMAD and 3 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Roshan Essani Title: SHAH MUHAMMAD and 3 others vs THE STATE Case No.: Criminal Appeal No,140 of 1994 Date of Judgment:1998-11-12 Reported As: 2000 P Cr. L J 390 Result: Appeal allowed
JUDGMENT
JUDGMENT ' The appellants Shah Muhammad son of Jumo Mashori, Razzak alias Abdul Razzak, Hakim Ali and Muhammad Uris, were tried of charge under section 302, P.P.C. Read with section 34, P.P.C., and section 324/34, P.P.C., for causing death of Ghulam Sarwar and an attempt to Murder P.W. Babu by the 1st Additional Sessions Judge, Nawabshah. The appellants were found guilty of the said offences and convicted. Each of the appellants was sentenced to suffer imprisonment for life and to pay compensation of Rs,10,000 or in default to suffer R.I. For six months for the offence under section 302, P.P.C., read with section 34, P.P.C. They were also sentenced to suffer R.I. For ten years each and to pay fine of Rs,5,000 or in default of such payment to undergo further R.I. For one year for offence under section 324, P.P.C., read with section 34, P.P.C. 2. The above named appellants filed the above appeal through Mr. A.Q. Halepota, Advocate. I have heard the learned counsel for the appellants, Mr. Muhammad Saad Qureshi, Advocate for A.-G. For the State and Mr. Nooruddin Sarki, for the complainant. 3. The brief facts of the prosecution case are that on 13-11-1991 the deceased Ghulam Sarwar alongwith witnesses Haji Ghulam Hussain, Babu Khan, Sam Bukhsh were going to "Maila" (fare) of Garho Peer at Daur by a five feet path leading to Daur in a "tonga" which was being driven by witness Bahadur. It was about 12 0' Clock noon when they reached near sugar-cane cultivation of appellant Shah Muhammad, all the appellants came out from the said sugar-cane cultivation. Appellant Shah Muhammad was armed with a rifle and appellant Muhammad Uris was having a double barrel gun. The remaining two appellants Razzak and Hakim Ali were armed with single barrel guns. They challenged the deceased and others that they would not be spared and asked the "Tonga" driver to stop the "Tonga", All the appellants then fired from their respective weapons as
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a result whereof Ghulam Sarwar and Babu were injured. Haji Ghulam Hussain started running. The appellants followed him but he ran-away in jungle. The appellants then went-away to their houses. Many persons, who were on their way to "Maila", gathered there. Haji Ghulam Hussain returned back and found that his nephew Ghulam Hussain returned back and found that his nephew Ghulam Sarwar and cousin Babu were seriously injured and they were bleeding. The injured were removed in the "Tonga" and brought to mettled road at Asgharabad from where Haji Ghulam Hussain hired a "datsun" and took them to Civil Hospital, Nawabshah. 4. The first information report of this incident was lodged by Haji Ghulam Sarwar at Police Station Taluka Nawabshah within three hours of the incident. 5. After the registration of first information report the A.S.-I. Ghulam Haider took up the investigation. He first proceeded to the Civil Hospital, Nawabshah where he saw both the injured and prepared Mashirnama of injuries on their person in presence of Mashirs Yar Muhammad and Allah Rakhio. He then visited the scene of offence and prepared such Mashirnama in presence of the same Mashirs Yar Muhammad and Allah Rakhio. From the scene of offence six empty cartridges of .12 bore of red colour and two empties of 7 mm bullets of rifle were recovered. The said Investigation Officer then recorded the statements of witnesses Sain Baldish and Bahadur. Appellant Shah Muhammad and his son Uris were arrested by him from their own "Otaq". On 15-11- 1991 accused Shah Muhammad produced his licensed rifle and Uris produced his licensed double barrel gun before the said Investigation Officer in presence of the same hirs. On 16-11-1991 appellant Razzak and Hakim Ali were also arrested from their own "Otaq", Razzak produced an unlicensed single barrel, gun from sugar-cane cultivation and on 18-11-1999 Hakim All also produced an unlicensed single barrel gun from the sugar-cane cultivation. These recoveries were also made in presence of Mashir Yar Muhammad and Allah Rakhio mentioned above. After completing the investigation, the said A.S.-I. Ghulam Haider handed over the case papers to S.H.O., who challaned the appellants in Court. This police officer was not examined by the prosecution. 6. The primary evidence against the four appellants consists of ocular testimony furnished to complainant Haji Ghulam Hussain and witnesses Babu, Sain Bakhsh and Bahadur. While Haji Ghulam Hussain is uncle of the deceased Ghulam Sarwar, Babu is cousin of the complainant and Bahadur is "Tonga" driver and Sain Bakhsh happened to meet the complainant Haji Ghulam Hussain on the day of incident by chance. The other witness whose mention needs to be made, is Allah Rakhio, who not only acted as Mashir of injuries on the person of Ghulam Sarwar and Babu, of scene of offence and recoveries from scene on 13-11-1991, but he also acted as Mashir of house search and subsequent arrest, and recovery of rifle and guns from the appellants on 15-11-1991, 16- 11-1991 and 18-11-1991, respectively. The weapons recovered from the appellants were sent to the ballistic expert on 18-7-1993, who found that two fire-arm empties had been fired from the 7 mm rifle and two .12 bore crime empties were fired from the right and left barrel of double barrel gun. The two crime empties of .12 bore each were fired from the two single barrel guns. 7. Dr. Muhammad Aslam of People Medical College Hospital, Nawabshah, examined injured Babu on 13-11-1991 and found a punctured lacerated wound above his left eyebrow 4 c.m. x 1 c.m. Skin deep and punctured lacerated wound on lateral aspect of his left thigh 1/2 c.m. In diameter. The injured Babu was admitted in Eye Ward and he was operated by Dr. Ali Nawaz. In his cross- examination Dr. Muhammad Aslam stated that these injuries could not be caused by bullet but they could be result of pellets. He further stated that his findings on the condition of eye were based upon the opinion of Eye Surgeon Dr. Ali Nawaz, who was not examined by the prosecution. Dr. Muhammad Aslam also examined injured Ghulam Sarwar and found a punctured lacerated wound on lateral side mid of his left side leg 1/2 c.m. In diameter, a punctured lacerated wound on left side of neck below the mastoid bone 3 c.m. x 1 c.m. Scalp deep and a punctured lacerated wound on mid of occipital region 2 c.m. x 1 c.m. Scalp deep. The opinion about the nature of injuries
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was reserved by Dr. Muhammad Aslam as the injured Ghulam Sarwar was referred by Incharge of concerned ward to a hospital at Karachi. 8. The injured Ghulam Sarwar was referred to Jinnah Post-Graduate Medical Central (J.P.M.C.), Karachi, where he was examined by Dr. Kamran, who was posted as House Officer in the said Hospital during this period. Dr. Kamran prepared case sheet of injured Ghulam Sarwar which was produced as Exh.19/B in the Trial Court by Dr. Shahid Ahmed, who appeared as a prosecution witness in place of Dr. Kamran. He also produced the treatment chart and medical certificate of cause of death of Ghulam Sarwar who is said to have died on account of cardio pulmonary failure, secondary to acute head injury on 14-11-1991 at 10-45 a.m. The said death certificate is signed by Dr. Kamran. No autopsy was, however, held over the dead body of Ghulam Sarwar in any hospital either at Karachi or elsewhere. 9. The remaining witnesses are police officers, A.S.-I. Ghulam Haider, who was concerned with the investigation of case as stated above, Tapedar Ghulam Haider, who prepared the sketch of Wardat on 16-2-1994 and the two medical officers Dr. Muhammad Aslam and Dr. Shahid Ahmed, mentioned above. 10. Each one of the appellants denied to have taken part in this incident. They stated that the eye- witnesses gave evidence against them due to enmity. 11. Mr. A.Q. Halepota, counsel for the appellants, submitted that the case against the appellants primarily rested only on ocular evidence. He stated that the evidence of recoveries is to be ignored for the reason that though the crime empties were secured from the scene of offence on 13-11-1991 but they were not sent to the ballistic expert immediately. These empties were, however, sent to the fire-arm expert on 18-7-1993 after a period of more than 1-1/2 years. Mr. A.Q. Halepota, further submitted that A.S.-I. Ghulam Haider, who was examined as a prosecution witness in the Trial Court did not say a word about the despatch of the empties and crime weapons to ballistic expert. Even the said report was produced in Trial Court by the Assistant Public Prosecutor through application Exh.20-Q on 9-4-1994. It was further submitted by Mr. A.Q. Halepota, that for these reasons even the learned trial Judge did not place any reliance on the report of ballistic expert and it was ignored by him. Mr. A.Q. Halepota, placed reliance on the case of Muhammad Ashfaq v. The State, 1995 SCM R 1321 wherein their Lordships of Supreme Court held that where crime empty had been sent to the ballistic expert after the recovery of gun; such recovery became doubtful. Likewise reliance was placed on the case of Waqar Zaheer v. The State PLD 1991 SC 447 wherein also their Lordship of Supreme Court dealt with the evidence of recoveries at paragraph 24 of the said report at page 457 and it was held by their Lordships that since crime empty was sent late and that too alongwith pistol and the circumstances in which the crime empty was detained by police till recovery of pistol such recovery could not be accepted with any degree of certainty. Mr. A.Q. Halepota, submitted that since the report of ballistic expert was not produced through any Investigation Officer it could not be ascertained through questions to be asked by defence counsel as to why the empties and crime weapons were despatched after such a long delay. 12. Mr. Nooruddin Sarki, the learned counsel for the complainant and Mr. Muhammad Saeed Qureshi, Advocate for Advocate-General for the State frankly conceded to the above arguments of Mr. A.Q. Halepota, regarding fire-arm expert's report and stated that the evidence regarding Ballistic Expert's Report and consequently that of recoveries of crime weapon from the appellants deserve to be ignored and that it was rightly not relied upon and it was rightly ignored by the learned trial Judge. 13. Then the only evidence against the appellants is that of eye-witnesses Haji Ghulam Hussain, Babu, Sain Bakhsh and Bahadur. Mr. A.Q. Halepota, submitted that the above eye-witnesses could not be relied upon and their testimony alone could not form the basis of conviction of any of the appellants. In that context, he submitted that motive initially set-up in the first information report,
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lodged by .Haji Ghulam Hussain has been totally abandoned by him in the Trial Court. According to F.I.R., the appellant Shah Muhammad committed this murder in order to avenge the earlier murder of his "Masat" Abdul Hakeem for whose murder Haji Ghulam Hussain was named as an accused. In the Trial Court Haji Ghulam Hussain, however, did not say a word in his examination-in-chief about the above motive. It is, thus, clear that motive initially set-up in F.I.R., was abandoned at the stage of trial. This being the position it became all the more necessary to scrutinize the credentials of the witnesses, who by their evidence speak about the guilt of an accused person on the premise of motive which is found false. Reliance is placed by Mr. A.Q. Halepota, on the case of Habibullah and others v. The State PLD 1969 SC 127 wherein their Lordships of the Supreme Court were pleased to hold that where the alleged motive was found to be absent being untrue the Courts should be very much on guard to accept the story of prosecution of which motive was an important constituent. 14. Admittedly, Haji Ghulam Hussain and Babu are closely related with the deceased Ghulam Sarwar, apart from being related inter se as cousins. The relations between the parties were also strained on account of earlier murder of Abdul Hakeem a close relation "Masat" of Haji Ghulam Hussain and a close relation of Babu. Haji Ghulam Hussain was one of the accused in the said murder case and he was awarded death sentence. Both the witnesses Haji Ghulam Hussain and Babu are, therefore, truly interested witnesses and their evidence could not form the basis of conviction of the appellants without independent corroboration, which is lacking in this case. No doubt, Babu is an injured witness but his being an injured witness would only corroborate in so far as his presence is concerned. Since he is an interested and inimical witness, this circumstance would not corroborate him with regard to the participation of each appellant. Babu has admitted that there is previous enmity between them and accused persons over the murder of Abdul Hakeem. That is why corroboration is to be sought and looked for in support of testimony of Babu as well. No such corroboration is available in this case. Reliance is placed on the case of Ghulam Sikandar and another v. Mumraiz Khan and others PLD 1985 SC 11 (relevant at 24)) wherein, under similar circumstances, evidence of an injured witness was not accepted without corroboration. The other case, which can be relied upon to support the above proposition is reported as Abdul Hamid and another v. The State 1985 PCr.LJ 1992 in paragraph 8 of page 2000. In this case also, it was held that injuries on the person of eye-witnesses cannot furnish corroboration to their testimony. 15. The testimony of remaining eye-witnesses Sain Baldish and Bahadur, who though not related to the deceased and had no apparent reason to falsely implicate the appellants also cannot be relied upon. None of these two witnesses and complainant Haji Ghulam Hussain appeared to have been present alongwith the deceased Ghulam Sarwar and Babu at the time of incident and at the place of occurrence, It is the case of prosecution that at the time of incident all these persons were going by "Tonga" of witness Bahadur to "Maila" of Gharo Peer. The volley of shots is said to have been fired at all of them. As many as six empty cartridges of .12 bore and 2 empty bullets of 7 mm rifle were said to have been secured from the scene of offence. It is wholly unnatural to accept that Haji Ghulam Hussain, Sain Bakhsh and Bahadur could escape the shots if they were sitting together or were few paces away from the deceased Ghulam Sarwar and injured Babu. It appears that story of "Tonga" has been falsely introduced in this case in order to make the presence of witnesses Haji Ghulam Hussain, Sain Bakhsh and Bahadur at the scene of offence probable. Mashir Allah Rakhio also did not lake a mention in his evidence about the wheel marks of "Tonga" or "Hoof" marks of horse at the place of occurrence. The Mashirnama of scene of offence is also silent about any such marks at the scene which could indicate that a vehicle like "Tonga" was available at the place of occurrence. Facts can belie but the circumstances do not. The police also did not secure and examine the said "Tonga". It must have got pellets marks if the story regarding travel of these witnesses by "Tonga" is correct. The "Tonga" was not produced before the Trial Court. Then, it has come in evidence of Haji Ghulam Hussain that both the deceased Ghulam Sarwar and injured
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Babu were removed in the said "Tonga" and brought to mettled road at Asgharabad from where a datsun was hired to remove both the injured to hospital. The seats of "Tonga" must have also got stained with blood oozing from the injuries of these two injured persons. It is indeed surprising that this important piece of evidence was left out. If "Tonga" was actually there, mention of it should have been made by Mashir Allah Rakhio in his evidence, it should have also found place in Mashirnama of scene of offence and Mashirnama of securing of "Tonga" also would have been prepared, mentioning the condition of its seats and also marks of gun-shots if any. The circumstances narrated above clearly suggest that the story of the prosecution that the deceased Ghulam Sarwar and injured Babu were travelling in a "Tonga" alongwith Haji Ghulam Hussain, Sain Bakhsh and Bahadur does not appear to be true. In his evidence Bahadur stated that his clothes did not get stained with blood as he had taken injured from their backside. He first stated that he could not say if the clothes of complainant Haji Ghulam Hussain were stained with blood while carrying the injured Babu. In the same breath he again said that clothes of both the complainant Haji Ghulam Hussain and Sain Bakhsh were stained with blood as they held the injured from front side. Now, neither such blood-stained clothes were produced by any of these two witnesses before police nor were they secured by the police. ' The production and securing of these blood-stained clothes would have been a very important circumstance to establish the presence of these witnesses at the place of occurrence at the time of the incident. It is also hard to believe that clothes of Bahadur would not have been stained with blood if he actually carried the injured, even though from their backside. The absence of injuries on the persons of these three witnesses Haji Ghulam Hussain, Sain Bakhsh and Bahadur coupled with the above circumstances clearly indicate that none of them was present alongwith the deceased Ghulam Sarwar and injured Babu at the place of occurrence at the time of incident. 16. So far as medical evidence is concerned, according to Dr. Muhammad Asla, the injuries sustained by Babu were, caused by pellets and not by bullet. He had, thus, no injury which could be said to have been caused by a fire-arm from which bullet is fired. As regards the deceased Ghulam Sarwar the injuries on his person too appear had been caused by a fire-arm from which cartridges is fired. Looking into the medical evidence, it cannot, therefore, be said with certainty that the deceased received any bullet injury. No autopsy was conducted over the dead body of Ghulam Sarwar and even the medical officer Dr. Kamran, who examined and prescribed treatment to the injured Ghulam Sarwar before his death, was not examined by the prosecution. There is nothing on record to suggest that he was not available for recording his evidence before the Trial Court. Dr. Shahid Ahmed, who appeared as a prosecution witness merely produced the case sheet, treatment sheet and medical certificate of cause of death of Ghulam Sarwar which were in the handwriting of Dr. Kamran and bore his signature. 17. Even otherwise medical evidence by itself does not establish either the identity or complicity of the accused in the crime. Reliance is placed on the case of Muhammad Ashraf and 2 others v. The State, (1998 SCMR 279 (283)). In this case, however, the medical evidence appears to be in conflict with ocular evidence as no bullet injury is found on the person of deceased as well as Babu. There is apparent contradiction in medical report and ocular testimony. The prosecution and not the accused are obliged to clarify this position. Reliance is placed on the case of Bagh Ali v. Muhammad Anwar and another 1983 SCM R 1292. 18. The overall effect of the discussion of above facts and circumstances is that the evidence of witnesses Sain Bakhsh and Bahadur, whose very presence at the place of occurrence, is highly doubtful, does not furnish requisite corroboration to the evidence of Haji Ghulam Hussain and Babu. The presence of Haji Ghulam Hussain at the scene of offence is also doubtful in view of circumstances detailed in the preceding paragraphs. The evidence of injured Babu, who is also
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interested and inimical witness, also does not get requisite corroboration from these three witnesses mentioned hereinabove. 19. It was held in the case of Muhammad Ashraf and 2 others v. The State 1998 SCMR 279 (283) as follows:--- ' ... The rule of caution which enjoins on the Court to seek corroboration to the testimony of an interested witness from other independent and unimpeachable piece of evidence in the case, implies that the corroboration must come as to the identity and complicity of the accused in the offence. No doubt motive is one of the relevant piece of evidence which furnishes support to the case of prosecution as to the involvement of accused in the offence but as held in the case of State v. Muhammad Sharif 1995 SCM R 635, motive is a double-edged weapon. While motive may be a sufficient reason for commission of the offence by the accused, it can equally serve as a reason for the false involvement of the accused in the crime. Therefore, in our humble view, where the prosecution case rests solely on the testimony of interested and inimical witnesses, it would not be safe, in such a case, specially when the punishment prescribed for the offence is capital punishment, to rely for corroboration of interested testimony of such witnesses, solely on the motive in the case. In the circumstances of the present case, the motive alleged against the appellant could not furnish as an independent and unimpeachable piece of evidence to corroborate the interested testimony of eye-witnesses in the case. The next contention of the learned counsel for the State is that the ocular testimony was corroborated by the medical evidence in the case. Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. It is only when the complicity of an accused in the crime is established through other evidence, beyond reasonable doubt, that further corroboration can be sought with the help of the medical evidence. Where involvement of the accused in the case is itself in doubt on account of ocular testimony in the case having been furnished by witnesses which are inimical to the accused, the medical evidence in such circumstances can hardly serve as a piece of corroboration to the interested ocular testimony in the case. The recovery of the crime weapon from the appellant in the absence of a positive report of the ballistic expert rendered the prosecution case against the appellant doubtful. In such circumstances, the medical evidence could not furnish corroboration to the prosecution story against the appellant. As we have already reached the conclusion that the witnesses examined by the prosecution in support of the case were not only closely related to the deceased but were also inimical towards the appellant, it was not safe to base the conviction of appellant for a charge involving capital punishment solely on the basis of such interested ocular testimony. We, accordingly, hold that the participation of appellant No,1 in the offence could not be established by the prosecution in the circumstances of the case, beyond reasonable doubt and, therefore, extending him the benefit of doubt allow his appeal and set aside his conviction and sentence under section 302, P.P.C. ...." 20. It is settled law that the rule of caution which enjoins on the Court to seek corroboration to the testimony of an interested witness from other independent and unimpeachable piece of evidence in the case implies that the corroboration must come as regards the identity and complicity of each accused in the offence. Such corroboration is lacking in this case. 21. Mr. Nooruddin Sarki, learned counsel for the complainant, however, argued that this was a broad daylight incident and the evidence of eye-witnesses Haji Ghulam Hussain, Babu, Sain Bakhsh and Bahadur was alone sufficient to sustain the conviction and sentence awarded to all the appellants. He submitted that the evidence of these eye-witnesses can be relied upon even in the absence of evidence regarding recoveries of crime weapons from the appellants and ballistic expert's report which was rightly not relied upon and ignored by the Trial Court. Mr. Nooruddin Sarki did not cite any case-law to rebut the authorities cited by the counsel for the appellants.
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22. Mr. Muhammad Saad Qureshi, Advocate for Advocate-General for the State also supported the prosecution case and stated that the evidence of eye-witnesses alone was sufficient to uphold the judgment of the Trial Court. 23. I have carefully considered the arguments advanced by Mr. Nooruddin Sarki, counsel for the complainant and Mr. Muhammad Saad Qureshi, Advocate for Advocate-General for the State. I do not, however, find myself in agreement with the submissions made by the counsel for the complainant and for the State. The ocular testimony furnished by witnesses Haji Ghulam Hussain, Babu, Sain Bakhsh and Bahadur as discussed above is not worthy of credit and it cannot form the basis of conviction of the…
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