MUHAMMAD SHARIF Versus MUHAMMAD JAVED

1. MUHAMMAD AFZAL CHEEMA, J. ‑Criminal Appeals Nos. 27, 28, 29 and 30 of 1972 are connected matters having a common background and are being disposed of by a single judgment. Five accused, namely, Muhammad Javed alias Jeda Tedi respondent No. 1 in Criminal Appeal No. 27 filed by Muhammad Sharif complainant, Nisar Ahmad appellant in Criminal Appeal No. 28, Muhammad Rafiq and Muhammad Siddiq appellants in Criminal Appeal No. 29 and Muhammad Latif appellant in Criminal Appeal No. 30 were tried by the Additional Sessions Judge, Lahore, for offences under sections 148, 307/149 and 302/149, F. P. C. and vide judgment, dated 22‑7‑1968 were awarded two years, R. 1. each under section 148, P. P. C., six months' R. 1. each under section 323/149, P. P. C., death sentence to Jeda Tedi and Latif and life imprisonment to Nisar, Siddiq and Rafiq under section 302/149, P. P. C. plus a fine of Rs. 500 each or further six months, R. 1. each in default of payment thereof. The murder references, the appeals filed by the convicts, the revision filed by Muhammad Sharif complainant/appellant in Criminal Appeal No. 27 and the State Revision for enhancement were disposed of by a consolidated judgment of the Lahore High Court, dated 20‑2‑1970. The learned Judges maintained the convictions on all counts but altered the death sentences of Jeda Tedi and Latif to life imprisonment and dismissed the revision petition for enhancement. Leave was granted by this Court's order, dated 26‑6‑1970 to consider the question of inadequacy of sentenca ;warded to the five convict/respondents in Criminal Appeal No. 27 herein. Since the entire evidence had to be re‑examined, leave to appeal was also incidentally granted to the four convicts Javed alias Jeda having chosen not to approach this Court.

2. The relevant background of these cases has been elaborately traced in the leave granting order and may be briefly recapitulated. There is a rather confusing similarity of names repeatedly occurring in the case. The deceased in this case was one Tariq Javed who was murdered on 6‑1‑1967 on the day of Jumatul‑Wida at 12‑45 p.m. in Street No. 7, Allah Bakhsh Road, Misri Shah, Lahore. About six months earlier on 29‑6‑1966, Rashid Parvez a maternal uncle's son of Tariq Javed deceased was murdered and Nisar appellant herein and three others were sent up on charge of this murder. During the pendency of the case, Nisar was allowed bail. On 3‑1‑1967, Nisar and Jeda Tedi caught hold of Parvez Zafar an eye‑witness in the earlier murder case and threatened to deal with him if he appeared as a witness against Nisar and his co‑accused. Tariq Javed deceased also appeared at the scene and saved Parvez Zafar from their clutches who left threatening him with dire consequences. Three days later on 6‑1‑1967, which was Jumatul‑Wida Muhammad Sharif (P. W. 13) appellant in Criminal Appeal No. 27 went to off; Juma prayers. As he reached near the shop of Abdullah alias Bhola, Gudi Farosh (kite‑seller) P. W. 18, he saw Latif and Javed Tedi altercating with Tariq Javed deceased for having intervened to rescue Parvez Zafar from there three days earlier. On seeing Muhammad Sharif, Latif slipped away. In the meantime, Khawaja Faiz, a respectable person of the locality also arrived and separated the deceased and Jeda Tedi. Apprehending foul play. Muhammad Sharif took the deceased who was his Khalazad towards his house. They had covered only a short distance when they were overtaken by the five convicts of whom Nisar had a dagger, Siddiq a revolver and the others were armed with knives. Siddiq raised a Lalkara that the deceased should not be spared. Sharif and Tariq Javed deceased in vain tried to run for life when Jeda Tedi overtaking the deceased attacked him with his knife. The deceased while trying to ward off the blow caught hold of the blade and got his right hand injured. Nisar gave him a dagger blow in the abdomen followed by Latif, Rafiq and Jeda Tedi, who gave him knife blows in succession. Muhammad Sharif tried to intervene and sustained a knife injury on the band. Siddiq fired in the air. Having been seriously injured, the d,‑ceased ran towards the house of his Khala Mst. Khurshid in Street No. 7 and fell in the porch. Besides Muhammad Sharif (P. W. 13), the occurrence was witnessed by Muhammad Yunus alias Gul Khan (P. W. 17). Muhammad Abdullah alias Bhola, Gudi Farosh (P. W. 18). Abdul Hamid, Siddiq and Khawaja Faiz. Tariq Javed succumbed to the injuries on way to the Mayo Hospital while he was in a Tonga and the doctor declared him dead. Muhammad Sharif repaired to Misri Shah Police Station and lodged the report at 1‑25 p.m.

3. Latif, Rafiq and Siddiq were arrested on the night between the 6th and 7th of January 1967. while Raftq and Jeda Tedi were arrested on the 8th of January 1967. The last mentioned two accused were found to have sustained injuries whose estimated time of origin coincided with the time of occurrence. The blood‑stained clothes on their person were removed at the time of arrest and on being sent to the Chemical Examiner were found to be stained with human blood. On 14‑1‑1967, Latif led to the recovery of knife P. 6 on which blood was found to be disintegrated. On 17‑1‑1967, Jeda Tedi led to the recovery of revolver P. 7 with empties P. 9 to P. 11 in the chamber and knife P.

8. Nothing was recovered from or at the instance of the remaining three accused.

4. Post‑mortem examination of the deceased revealed nine incised wounds on different parts of the body including fingers of the right hand besides, a scratch on the right cheek. Injuries Nos. 1 and 4 which were respectively an incised stabbed wound 1?? x ?? x peritonial cavity deep about 1?? below and to the right side of the navel with omentum protruding and an incised stabbed wound 2?? x 1?? femoral artery deep over the front of the right thigh proved fatal being individually sufficient in the ordinary course of nature to cause death.

5. While examined at the trial, the accused pleaded innocence but led no evidence in defence. Javed Tedi and Nisar, however, submitted written statements, Exhs. D. 1 and D 2, respectively. The former attributed his false implication to Abdul Hamid, S. H. O. Police Station, Misri Shah on ground of personal enmity while the latter to Ashiq Hussain Kashmiri father of Rashid Parvez deceased in the earlier case, against whom he had lodged a report with the police for running a gambling den which had to be closed.

6. Ocular evidence was furnished by Muhammad Sharif (P. W. 13) an injured eye‑witness and Khalazad of the deceased, Muhammad Yunus alias Gul Khan (P. W. 17) and Muhammad Abdullah alias Bhola, Gudi Farosh (P. W. 18), a shopkeeper of the locality. Of the other three P. Ws. mentioned in the F. I. R., Abdul Hamid remained untraced while Siddiq and Khawaja Faiz were given up as won over. Evidence of motive was supplied by Parvez Zafar (P. W. 20) a witness in the previous murder case against Nisar etc. and Muhammad Parvez (P. W. 21), who alongwith Tariq Javed deceased and another tried to rescue Parvez Zafar from the hands of Nisar, Jeda Tedi and others. The trial Judge placed full reliance on the entire evidence and convicted the accused as detailed earlier. The discrimination in the matter of sentence and in particular the award of death penalty to Jeda Tedi and Latif appellant was based on the alleged attribution of a major role to them.

7. In the High Court, the learned Judges discarded the evidence of motive on the short ground that in the report, Exh. P. G. dated 3‑1‑1967, lodged by Parvez Zafar (P. W. 12), the name of Tariq Javed deceased was conspicuously absent as one of the persons who had rescued him from Nisar, Jeda Tedi and others. The evidence of recoveries of knife at the instance of Latif and revolver at the instance of Jeda Tedi was rejected by the High Court partly on the ground of delay and partly for the reason that recovery witness, namely, Qayum Malik (P. W. 19) lived at a distance of more than 3 miles from the place of recoveries. Besides the blood on both the knives had disintegrated. The evidence of the recovery of blood‑stained clothes removed from the person of Jeda Tedi and Latif at the time of their arrest of which the blood was traced to human origin vide Chemical Examiner's Report was also discarded by the learned Judges

8. "Firstly, on the ground of delay in the despatch of the clothes to the Chemical Examiner ;

9. Secondly, the non‑examination of Malik Abdul Latif who had produced the two accused before the police ; and

10. Lastly, the non‑residence of the recovery witness Syed Alam (P. W.) in the locality. Notwithstanding the exclusion of the evidence of motive and recoveries, the learned Judges upheld the conviction on the basis of the unimpeachable ocular testimony of three eye‑witnesses of whom one was injured while the other two were unconnected, disinterested and natural witnesses being residents of the locality. Their statements were found to have received corroboration from the injuries sustained by Jeda Tedi and Latif. The commutation of death sentences of Jeda Tedi and Latif was justified on the ground that the former was a lad of 18 years and the role attributed to the latter was not distinguishable from that of the other convicts who had been treated leniently in the matter of award of sentence. The learned Judges also observed "that the two eye‑witnesses i.e. Gul Khan and Bhola were not in a position to say as to which injury had been inflicted by which accused."

11. From the foregoing narrative, it would be clear that the High Court had fully concurred in the trial Court's assessment of the ocular evidence of the three eye‑witnesses of whom the first informant Muhammad Sharif (P. W. 13) who wag also injured was the Khalazad of the deceased while the two others, namely, Muhammad YUSUF alias Gul Khan (P. W. 17) and Muhammad Abdullah alias Bhola, Gudi Farosh (P. W. 18) were characterised as wholly disinterested and natural witnesses. In a case of broad 14 day?light occurrence like this. where all the accused were specifically mentioned in a promptly lodged report and the version disclosed therein received full support from the medical evidence, it would not be necessary to look for corroboration and even excluding the evidence of motive or that of recoveries, the rest of the evidence would be good enough to bring home the guilt to the accused. Although I am not quite satisfied with the reason given by the learned Judges for the exclusion of the evidence of blood‑stained clothes of Jeda Tedi and Latif appellant, yet the existence of injuries on their person whose duration coincided with the time of occurrence furnished additional incriminating evidence against them. Obviously, therefore, there were no strong reasons for this Court to embark on re‑appraisement of evidence at the instance of the appellants. Since, however, the petition filed by Muhammad Sharif complainant and converted into Appeal No. 27 was admitted though only to examine the limited question of the inadequacy of sentence awarded to the respondents in that appeal, the Appeals Nos. 28, 29 and 30 filed by convicts except Jeda Tedi who did not approach this Court, were also incidentally admitted. Nevertheless learned counsel for the appellants was allowed full opportunity to argue the case and challenge the convictions and sentences.

12. It was contended on behalf of the appellants that Muhammad Abdullah alias Bhola, Gudi Parosh (P. W. 18) was not mentioned in the initial report as an eye‑witness of the main occurrence and even otherwise, he could not have possibly seen the occurrence from his shop at a distance of 176 feet from the spot ; that according to F. C. Sanaullah (P. W. 4), there were neither any blood stains at the spot nor the trail of blood leading to the porch of the house of Khurshid Begum where the deceased fell after running away from the spot ; that neither the Khanjar attributed to Nisar appellant nor the revolver allegedly wielded by Siddiq appellant was recovered from him; that it did not stand to reason that Jeda Tedi and Latif would have continued to wear the blood‑stained clothes till the time of their arrest nn 8‑T‑1967; that the genuineness of the injury received by Sharif complainant, the star witness in the case was not free from doubt inasmuch as he was not examined by the Doctor till midnight. On the question of sentence, it was submitted that Muhammad Sharif (P. W. 13) alone had particularised injury No. 4 of the deceased attributing it to Nisar and the High Court had rightly ignored it on the ground that he had a motive to assign the principal role to this appellant. It was argued that since the other fatal injury of the deceased, namely, injury No. 1 could not be specifically attributed either to Latif or to Jeda Tedi, the High Court had rightly refused to distinguish their case so as to justify the award of death penalty. Even otherwise, it was submitted that the appeal for enhancement of sentence not having been prosecuted, it would not have been appropriate to consider the question of enhancement at this late stage particularly when all the accused bad already been released from jail after having undergone the entire sentence of life imprisonment inclusive of remission.

13. As would appear most of the contentions raised by the learned counsel in substance called for re‑appraisement of evidence. As regards the point that Muhammad Abdullah alias Bhola, Gudi Farosh was not mentioned as an eye‑witness in the F. I. R., I find that the first part of the occurrence took place right in front of his shop shown at point No. 3 of the site plan, which was witnessed by him. Close on its heels, within a couple of minutes followed the main occurrence resulting in the death of Tariq Javed deceased. It was noontime and there was nothing to obstruct the view from a distance of less than 30 yards. This would on the other band reasonably explain as to why the witness was not in a position to particularise the injuries of the deceased or see Muhammad Sharif complainant or Latif and Jeda Tedi receiving the injuries during the scuffle. He was subjected to a lengthy cross‑examination and on the whole remained unshaken. The contention that Muhammad Sharif complainant was shown at point No. 4 at a distance of 12 ‑feet and 6 inches from the place of murder and therefore, could not have received :the injury on his palm is wholly misconceived and is based on the absurd assumption that he remained fastened to the ground. It was but natural that he should have come forward to rescue his Khalazad. He made a specific reference to his injury in the promptly lodged report and ,the police also prepared his injury statement. Nothing would therefore, turn on his delayed examination by the Doctor. The challenge to the genuineness of the removal of blood‑stained clothes from the person of Jeda Tedi and Latif may be disposed of on the short ground that this evidence was kept out by .the High .Court although for reasons which are not quite .convincing. Nothing would, however, turn on this as even otherwise, the injuries sustained by them during the scuffle offered adequate corroboration. Coming now to the seemingly gratuitous concession made by F. C., Sanaullah (P. W. 4) that there were no blood stains at the place of occurrence, I would be inclined to think that this was a deliberate lie obligingly told by the witness at the instance of the defence. Experience has shown that this type of modus operandi by unscrupulous and successfully tackled patwaris and F. Cs. has become quite usual. Although in the instant case, this part of the evidence of the Constable is not worth a moment's consideration in the face of overwhelming evidence to the contrary, yet at . times quite .damaging concessions are elicited by the defence from formal witnesses in accordance with a previous understanding. The venue of the crime was not challenged by the defence by making any suggestion in cross‑examination to the eye‑witnesses or the Investigating Officer. In fact, there is nothing to show that this Constable had been taken to the spot either by the A. S. T. or the Inspector for the detection or collection of blood‑stained earth from there. I am constrained to reiterate as observed by this Court in Bagu v. The State PLD1972SC77 that unless such cases of deliberate perjury resulting is perversion of justice are properly dealt with by the departmental authorities, the infection is bound to spread and the difficult task of administration of justice will be further complicated. In view of the foregoing discussion, no fault could be found with the conviction of the respondents in Criminal, Appeal No. 27, four of whom are appellants in Criminal Appeals Nos. 28, 29 and 30. This brings me to the question of sentence.

14. Surprisingly enough while having attributed a major role to Jeda Tedi and Latif, the trial Court conveniently ignored the fatal dagger injury specifically ascribed to Nisar appellant who being an accused in the previous murder case was on bail at the relevant time. The mere possibility of Muhammad Sharif having deliberately exaggerated the role of this accused ‑by ascribing to him one of the fatal injuries in the admitted background of previous enmity, would not justify the disregard of a positive assertion made by Muhammad Sharif in the promptly lodged F. I. R. and later deposed to at the trial. Again there can be no doubt that Jeda Tedi did not only participate in the manhandling of Parvez War (P. W. 20), three days prior to the occurrence but also altercated with the deceased in the first instance and later opened the attack on him. The sudden disappearance of Latif from the shop of Muhammad Abdullah alias Bhola, Gudi Farosh and his re‑appearance alongwith others after arming themselves .did also impart some conspicuousness to the role of this accused. However, as it may be, the learned Judges in the High Court altered the sentences .of death awarded to Jeda Tedi and Latif on the ground that the former was of 18 years of age while the case of the latter was, not distinguishable from that of the other co‑accused who had been treated rather leniently.

15. It has come to the notice of this Court that in an increasing number of; convictions on charge of murder there is a kind of inhibition or hesitency o the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the' High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the Rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the, . accused are measures aimed at the protection of human life against false' implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief' found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of C death which is not confined to the actual killer but is also extended to the other co‑accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F. I. Rs., the reluctance of eye‑witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trial of appeals all combine to help out the murders of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence. thus indirectly, contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P. P. C. in a case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P. P. C. does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made on that score in the matter of sentence. Reference may be made in this regard to Gardev Singh and others v. Emperor (A I R 1948 Lah. 58) a D. 8. judgment by Muhammad Munir and Muhammad. Jan, JJ., as they then were, in which the revision petition for enhancement of sentence of transportation was allowed and sentence of death was awarded to four convicts on capital charge. The next relevant case is Khairdi Khan and others v. Crown (P L D 1951 Lah. 322), again a Lahore judgment of high authority by Muhammad Munir, C. J., and S. A. Rehman,. J., both of whom retired as Chief Justice of Pakistan. Here again accepting the revision petition, the learned Judges enhanced to death the sentences Of transportation for life awarded to three convicts in a case of double murder. The next judgment is Shaheb Ali v. State (P L D 1970 S C 447) in which it was observed by this Court "if several persons combine to destroy one human life destardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the Law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner." Earlier in the same judgment, it was observed "if on the facts of a given case, law and justice demand a heavier toll for the extinction of single life at the hands of more than one culprit, it has to be exacted." However, there may be a host of extenuating and mitigating circumstances such as extreme youth, sudden provocation, influence of an elder, question of family honour etc. justifying the award of the lesser penalty of life imprisonment based on a chain of judicial pronouncements offering useful guidelines.

16. Coming now to the facts and circumstances of the instant case, I find that even if the trial Court had erred in awarding the lesser sentence to Nisar accused against which two revisions one by the State and the other by P. the complainant were moved before the High Court, it would have been more appropriate to rectify the error by enhancing the sentence of Nisar to death rather than reducing instead the death sentences of Jeda Tedi and Latif and repeat the same mistake on the pretext of equality of treatment.

17. As regards the doctrine of expectancy of life, in view of the chronic delays in ' committal, trial and disposal of appeals as also the deliberate tactics of the convicts to delay the proceedings in order to escape the gallows I there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v. Muhammad Ali (P L D 1971 S C 541), Muhammad Khan v. Dost Muhammad (P L D 1975 S C 607) and Mst. Razia Begum v. Hijrayat Ali and 3 others (PLD1976SC44) and the doctrine like that of falsus in uno falsus in omnibus is rarely and ? exceptionally invoked by this Court.

18. Having already detailed the facts and circumstances of the case, I would not have hesitated to enhance the sentences of Jeda Tedi, Latif and Nisar but for the reasons, that nobody has come forward to prosecute the appeal , for enhancement of sentence and all the convicts have already secured their release from the jail after having undergone the entire sentence of life imprisonment inclusive of the remission earned by them. In consequence, therefore, all the appeals fail and are hereby dismissed.

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20. MUHAMMAD YAQUB ALI, C. J.‑I agree.

21. SALAHUDDIN AHMED, J.‑I agree.

22. S. A. H. ????????????????????????????????????????????????????????????????????? Appeal dismissed.