MUHAMMAD ASLAM Versus MUHAMMAD ZAFAR

1. NASIM HASAN SHAH, J.---The facts, which form the background of this appeal briefly stated, are as follows:

2. Respondents Muhammad Zafar and Ghulam Haider alongwith five other persons were charged under sections 148 and 302 read with section 149 of the Pakistan Penal Code, for having murdered Haji Zulfiqar, deceased, on the 2nd of March, 1981, at 11.00 a.m. in the area of Sabzimandi of Khushab City, which is only a few yards away from Police Station Khushab.

3. The respondents, Muhammad Zafar and Ghulam Haider were convicted under section 302 read with section 34 of the Pakistan Penal Code, and sentenced to imprisonment for life, alongwith fine in the sum of Rs.8,000 each, and in case of default in payment of fine, to further rigorous imprisonment of six months, by the learned Sessions Judge, Khushab, vide judgment/order dated 22nd of September, 1982. The co-accused were given the benefit of doubt and acquitted.

4. Respondents Muhammad Zafar and Ghulam Haider appealed against their conviction by way of Criminal Appeal No.555 of 1982. Muhammad Aslam.

5. ‑‑‑‑Ss. 302 & 34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Petition for leave to appeal against acquittal of co‑accused was dismissed where only one shot was fired and there was no corroborating evidence against the co‑accused. [p. 5] B

(c) Penal Code (XLV of 1860)‑‑‑

6. ‑‑‑‑Ss. 302 & 34‑‑‑ Appreciation of evidence‑‑ ‑Investigating officer stated that (complainant), appellant herein, moved a petition for enhancement of the sentences of the respondents, by way of Criminal Revision No.744 of 1982 in the Lahore High Court, Lahore. Both these connected matters were decided together by a Single Judge of the Lahore High Court, Lahore vide judgment and order, dated 10-3-1984 who accepted the appeal of the respondents but dismissed the revision petition of the complainant (appellant herein).

7. The case of the prosecution was briefly stated as follows:

8. On the 2nd of March, 1981, at 11 a.m. Muhammad Aslam, appellant, alongwith Sahib Khan (P.W.9) were present at the shop of Haji Zulfiqar, deceased, in Sabzimandi, Khushab, when the respondents alongwith their coaccused came to the said shop. Respondent Ghulam Haider was armed with a gun, with which he fired and hit Haji Zulfiqar deceased on the chest, resulting in his death. Respondent Muhammad Zafar, who too was also armed with a gun, fired at the deceased ineffectively. However, on hearing the report of the gun fire Muhammad Aslam Police Constable (P.W.10) rushed out from the nearby Police Station and saw Muhammad Zafar running away. He gave him a chase and apprehended him from the house of Mehboob Ilahi (accused) where Muhammad Zafar was attempting to hide. He recovered the gun from Muhammad Zafar with which he had fired the shot and also recovered the empty cartridge which was still in its chamber.

9. Muhammad Aslam (P.W.8), a nephew of Haji Zulfiqar, deceased, reported the matter immediately at Police Station Khushab, where first information report was recorded by Inspector Khurshid Alam (P.W.11).

10. The occurrence was witnessed by Muhammad Aslam (P.W.8) and Sahib Khan (P.W.9).

11. Dr. Muhammad Riaz (P.W.1) performed the post-mortem examination on the 2nd of March, 1981 at 1-00 p.m. and found four injuries on the body of Haji Zulfiqar deceased. Injuries Nos.l and 2 were caused by a gunshot and were on the chest of the deceased, while injuries Nos.3 and 4 were abrasions on the knee of the deceased.

12. In the opinion of the doctor, injury on the chest was sufficient in the ordinary course of nature to cause death.

13. The motive for the murder of Haji Zulfiqar Ali deceased, was that a year and a half prior to this occurrence, real brother of respondent Muhammad Zafar was murdered. Zafar Iqbal and Javaid Iqbal sons of Haji Zulfiqar, deceased, were challaned for that murder. The case was pending trial at the time of the present occurrence.

14. The respondents pleaded total denial and false implication due to the enmity. However, no evidence was led in defence. The learned trial Judge (Sessions Judge, Khushab) vide judgment dated 22-9-1982, as stated earlier, convicted Ghulam Haider and Muhammad Zafar under section 302/34 P.P.C. and sentenced each one of them to life imprisonment with fine and acquitted the rest by giving them the benefit of doubt.

15. The learned Single Judge of the Lahore High Court, Lahore, while disposing of the appeal of the convicts (respondents) and the revision petition of the complainant (appellant herein) was pleased to accept the appeal of the respondents but dismissed the revision petition of the appellant mainly on the ground that:-

16. "There being no strong corroboration against the two appellants they are entitled to the benefit of doubt".

17. (Paragraph 14 of the judgment).

18. Leave to appeal was granted by this Court against the acquittal of Muhammad Zafar only inter alia to consider "whether the High Court has not fairly dealt with the evidence of Muhammad Aslam (P.W.10) a Police Constable who had arrested Muhammad Zafar with the gun and an empty in its chamber".

19. Leave was refused against the acquittal of Ghulam Haider "as only one shot was fired and there is no corroboratory evidence against Ghulam Haider."

20. We have heard learned counsel for the parties.

21. The incident took place in daylight around 11-00 a.m. in the morning in Sabzimandi Khushab City. The boundary wall of Police Station Khushab is only at a distance of 15 feet from the place of occurrence. Muhammad Aslam, Constable, was a Naib Muharrir in Police Station Khushab. He heard the report of a gunshot and came out of the Police Station. He saw Muhammad Zafar with a gun in his hands running towards the south and ran after him. Muhammad Zafar respondent in the meanwhile had mounted on Mehboob Ilahi (accused's) cycle and both rushed towards his house but the Constable (Muhammad Aslam) pursued them and followed them into the house of Mehboob Ilahi, who ran away by running over a roof top, but Zafar respondent was apprehended with his gun (P.5). The Constable Aslam brought him to the Police Station and produced him before the S.H.O. (Khurshid Alam, Inspector) who arrested him and took into possession gun (P.5) with empty (P.6).

22. The learned Judge in the High Court while accepting the appeal of the convicts observed:

23. "There is contradiction between the prosecution evidence and the police version regarding the person who actually killed Haji Zulfiqar, deceased. According to the prosecution witnesses, the fatal shot was fired by Ghulam Haider, appellant, whereas according to the police, it was fired by Muhammad War, appellant. There is no corroboration against Ghulam Haider, appellant at all. As against Muhammad War, appellant, the testimony of Muhammad Aslam F.C. P.W. 10 is being urged as strong corroboration. However, the testimony of this witness is not entirely free from suspicion. According to his testimony, he came out of the premises of the police station immediately on hearing two fire shots, found Muhammad War, appellant running towards south, carrying a 12 bore gun, getting on the bicycle of Mahboob Elahi, acquitted accused and decamping to his house, his giving a chase to them and ultimately capturing Zafar, appellant, with his gun P.5 containing an empty P.6 in it. He also states that he thereafter took Zafar to the spot and from there to the police station. Khurshid Alam S.H.O. P.W.11 submits in his evidence that after Muhammad Zafar was produced before him by Muhapimad Aslam F.C. P.W. 10 he then proceeded to the hospital where he prepared the inquest report and the injury statement of Haji Zulfiqar deceased but it is strange that there is no reference in the inquest report Exh. PK about the arrest of Zafar appellant, or about the recovery of gun P.5 and empty P.6 from this appellant. It is, therefore, clear that uptil the time of the scribing of the inquest report Exh. PK, which was prepared at the hospital, there was no information about the capture of Muhammad War, appellant, by or at the instance of Muhammad Aslam F.C. PW.

10. Even Muhammad Aslam P.W. 8 admits in cross-examination that he did not see Muhammad Aslam F.C. P.W. 10 and Yousuf P.W. near the spot and that according to him these two persons had never seen the occurrence and that the police had put them up falsely."

24. Thus the m. 'a consideration weighing with the learned Judge while rejecting the testimony of Constable Muhammad Aslam P.W. 10 was the omission of the S.H.O (Khurshid Alam P.W.11) to make mention of the arrest of Zafar (respondent) in the inquest report.

25. But this omission would hardly be of any significance if Constable Muhammad Aslam P.W. 10 was to be believed and was considered worthy of reliance. The appraisement of his testimony by the learned Sessions Judge has impressed us considerably. In this connection he has observed in his judgment:

26. "On a reference to the testimony of Muhammad Aslam F.C. P.W. I find that this witness who was a Naib Moharrir in Police Station Khushab heard report of two fires. On first fire he ran. He was still running when he heard report of second fire.

27. He came out of the boundary wall of Police Station Khurshab. He saw Muhammad Zafar accused running towards south carrying 12 bore gun. Being conscious of his official duty as a police man Muhammad Aslam F.C. chased Muhammad Zafar accused. It was a long hot chase. Muhammad Aslam F.C. P.W. was successful in overtaking Muhammad Zafar accused. He arrested this accused and disarmed him. In this manner gun P.5 with an empty P. 6 still in its chamber was recovered. Muhammad Aslam F.C. P.W. brought Muhammad Zafar accused back to police station and then and there he produced Muhammad Zafar accused alongwith gun P.5 and empty P.6 before Khurshid Aslam S.H.O. P.W. That is what happened soon after the killing. Muhammad Aslam F.C. P.W. is a more independent witness of the locality. As already stated Police Station Khushab is quite near the spot of occurrence. The distance is about 15 feet. Muhammad Aslam F.C. was on duty. He heard report of fire and started running out of the police station. This witness has no bias for or against any body. He ran and gave a chase to culprit in answer to the call of his duty. He was agile and was successful in apprehending Muhammad Zafar soon after the occurrence. He acted with responsibility as he did not discontinue the chase even though he had to struggle hard for it. It was also being said by the people present there at the spot that a man is running after having killed another. There is no explanation forthcoming from the side of Zaffar as to his presence at the spot and his running from the spot, as he was arrested soon after the occurrence. Now why should Muhammad Zaffar have run. The answer to this question is found in the statement of eye-witnesses. Muhammad Aslam and Sahib P.Ws. stated that after the gun-shot made by Ghulam Haider accused, Muhammad Zafar accused also fired at the deceased. This was, however, ineffective firing. Muhammad Zafar accused is just a boy. He lacks maturity of muscle and mind. He had fired as has been stated by the eye-witnesses but missed the target. Now after having done this he ran from the spot with a view to secure himself. While he was running he was holding gun P.5 in his hand. People saw him. So did Muhammad Aslam F.C. He was arrested and gun was recovered from him. Empty was still in the chamber of the gun which is suggestive of the fact that the gun had been fired. Now the fact that the Investigating Officer did not send the empty and the gun to the Forensic Science Laboratory does not in any manner work wonders for the accused. That was a doing of the Investigating Officer. No body knows the reasons for this lapse. Still the testimony of Muhammad Aslam F.C. P.W. read with the testimony of two eye-witnesses does prove presence of Muhammad Zafar accused at the spot and his active participation though the fire shot made by him did not cause injury to the deceased. The report of two fires was heard by Muhammad Aslam F.C. First shot was fatal and that is attributed to Ghulam Haider accused but second was ineffective and this is attributed to Muhammad Zafar. Gun, P. 5 is the ownership of Muhammad Mumtaz co-accused, father of Muhammad Zafar accused. Muhammad Mumtaz holds an Arm Licence for the same. It was thus very convenient for Muhammad Zafar accused to lay hands on gun belonging to his father Muhammad Mumtaz."

28. Now in view of the unfortunate tendency in our society of P.Ws. not coming out with the whole truth and the unsatisfactory manner in which the prosecution agencies discharge their duties, this Court in order to avoid failure of justice has ruled that the incompleteness of the tale or other unsatisfactory features ostensibly appearing in the case where parties are not coming out with the true story should not deter the Court from drawing proper inference from evidence as laid which can legitimately be drawn in the circumstances: (Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502). I

29. In this case we are satisfied that Aslam Constable (P.W.10) has given a truthful account and his statement can be relied upon. Undoubtedly. Muhammad Aslam P.W. 8 admitted in the cross-examination that he did not see Constable Aslam (P.W. 10) near the spot. But Muhammad Aslam P.W. 8 appears to have been intcrested in securing the conviction of other accused as well and the incompleteness of his tale will not deter us from drawing legitimate inferences which we can properly draw from the other evidence.

30. Here the circumstances that immediately after the incident P.W. 10 (Aslam Constable) rushed out of the Police Station on hearing the report of firing, saw Zafar accused fleeing from the spot with a gun in his hands impelling him to chase and apprehend him, his production, alongwith the gun before the investigating officer immediately thereafter indicate a chain of circumstances so strong that a reasonable doubt regarding the natural conclusion that Zafar indeed had taken part in the offence could be created only if he established some exculpatory circumstance of a concrete type. This he failed to do. The conclusion arrived at by the learned trial Judge, therefore, that War (respondent) was a partner in the offence was the only reasonable conclusion that could be reached in the circumstances and can safely be affirmed (see also Billmoria alias Muhammad Hussain v. The State PLD 1958 SC 313).

31. As a consequence of this finding Zafar respondent is liable. to be convicted under section 302/34 PPC. It is true that his co-accused Ghulam Haider was acquitted by the High Court and leave to appeal against his conviction has been refused. But Ghulam Haider accused was only acquitted by the High Court by giving him the benefit of doubt. This means that there were two possibilities existing in the circumstances of the case namely that either Ghulam Haider had indeed fired the shot which caused the death of Haji 7ulfiqar deceased or that he had not done so. The benefit of this doubt was granted to Ghulam Haider accused. But that is no reason why the alternative possibility namely that Ghulam Haider had indeed fired the fatal shot was not possible, and that it should not be given its due legal effect in relation to Zafar respondent: (See in this connection Sher Hassan v. The State (PLD 1959 SC 480).

32. In the result the conviction of Muhammad Zafar son of Mumtaz under section 302/34 P.P.C. is restored and he is sentenced to imprisonment for life with payment of fine amounting to Rs. 8,000 or in default thereof to suffer further rigorous imprisonment for six months. However, he shall be given the benefit of the provisions of section 382-B, Cr.P.C. in computing the sentence that he has yet to undergo.

33. MU14AMMAD AFZAL LONE, J.----I have gone through the judgment proposed to be delivered, and with respect, I regret my inability to agree with it.

34. In this case there are only two eye-witnesses, namely, Muhammad Aslam (P.W.8) and Sahib Khan (P.W. 9). The former is the nephew of the deceased. As regards the latter his sister was the wife of the deceased. Both of them categorically stated that Ghulam Haider, the co-accused, fired with his gun and injured the chest of the deceased. Two-lacerated wounds and two abrasions were found on the dead body. In the opinion of Dr. Muhammad Riaz (P.W.1) injury No. 1 was the wound of the entry and injury No. 2 that of exit; the death was caused due to internal and external haemorrhage, shock and injuries to vital organs of the body. Both the eye-witnesses deposed that Muhammad Zafar respondent fired with the gun but the shot missed the deceased. Muhammad Aslam F.C. (P.W.10) is not an eye-witness. Even the prosecution did not claim so. It is in his testimony that:

35. "At the time of hearing the fire report I was present inside the repot zing room of PS Khushab. The second fire was made 2 or 3 minutes of the first fire. I was still within the boundary wall of PS Khushab when I heard the report of second fire. At the time I heard the report of second fire I was about 25/30 yards inside the boundary wall of the police station and the outer gate of the boundary wall of PS was 25/30 yards from me . 1 reached the place of murder half hour after the fire. No person was present at the spot at that time. I picked up the pistol P.7 from the spot and then went to the police station and found the Inspector sitting in the PS. I produced Zafar accused and the revolver before the Inspector in the premises of PS at about 12' Clock noon."

36. The High Court in para. No. 14 of its judgment has given a number of reasons for discarding the testimony of Muhammad Aslam F.C. (f.W. 10), which precisely put are: firstly, the arrest of Muhammad Zafar and recovery of gun P.5 and empty P.6 were not mentioned by the Investigating Officer in the inquest report prepared by him in the hospital. From this submission the High Court concluded that the Investigating Officer had no information abut the arrest of Muhammad Zafar by Muhammad Aslam F.C. P.W. when he prepared the inquest report; secondly, Muhammad Aslam (P.W. ' 8) in hip cross-examination stated that he did not see Muhammad Aslam F.C. P.W. at the spot and, in fact, according to him, this police official was falsely planted; thirdly, even Sahib Khan P.W., as per his statement, did not see Muhammad Aslam F.C. at the spot or running after Muhammad Zafar. It will not be without significance to recall here, that both the eye-witnesses are closely related to the deceased; fourthly, Muhammad Aslam F.C. claimed to have found at the place of occurrence a revolver P/7 and bullets P-8/1-3 loaded therein, when he came there with Muhammad Zafar in his custody. Both the eye-witnesses, as borne out from their testimony, lifted the deceased to the hospital, but did not find any revolver at the place of his murder; fifthly, though Muhammad Aslam F.C. was assigned the role of seeing Muhammad Zafar respondent, getting on the cycle of Mahboob Elahi, the acquitted accused, and driven by the latter to his house, but the witness could lay hand only on the respondent and neither took the cycle in his custody nor captured Mahboob Elahi, who reportedly made good his escape; sixthly, in his statement under section 161, Cr.P.C., the witness named the person on whose cycle Muhammad Zafar escaped, as Maqbool Elahi. It was upon consideration of all these factors and attending circumstances of the case, that the High Court concluded that "the evidence of Muhammad Aslam F.C. (P.W. 10) is discrepant and shaky and cannot be used with any degree of safety to even ponvict Muhammad Zafar", and thus, there being no strong corroboration found Ghulam Haider as well as Muhammad Zafar entitled to benefit of doubt. I may observe that the averment appearing in the trial Court's judgment that it was being said by the people present there at the spot that a man was running after having killed .another is merely hearsay.

37. According to the two eye-witnesses, Ghulam Haider is the principal accused. He alongwith Muhammad Zafar was given benefit of doubt and acquitted by the High Court. The acquittal of Ghulam Haider has not been interfered with even by this Court, as leave to appeal against him was declined. When the principal accused has been acquitted, in the circumstances of the case, the presumption would be that the respondent did not conjointly act with him in committing the murder of the deceased. In my humble view, it will not be appropriate to convict-the respondent on the capital charge on the basis of vicarious liability. There is no material on the file that the empty P.6 was wedded with the gun P/5. The acceptance of the uncorroborated testimony of Muhammad Aslam P.W. at the most would furnish only circumstantial evidence, which for good reasons has been described by the High Court as "discrepant and shaky". It is well settled that no accused can be held guilty on the basis of circumstantial evidence unless the facts proved are incompatible with his innocence and are incapable of explanation upon any reasonable hypothesis than that of guilt. It is to be remembered that in appeal against acquittal, the finding arrived at by the High Court based on material on the record is entitled to sufficient weight even if.it is rested on wrong appraisal of such material. The test laid down by this court for setting aside acquittal in Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) is:

38. "The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

39. It cannot be said that the findings recorded by the High Court in terms of the test aforesaid are shocking and ridiculous. Upon the facts of the case, a reasonable possibility of false implication of the respondent cannot be ruled out. The view taken by the High Court in giving the benefit of doubt to Muhammad Zafar respondent is in conformity with the principles governing the administration of criminal justice. There is no good ground to interfere with the impugned judgment. This appeal having been found without merit, is hereby dismissed.

ORDER OF THE COURT

40. In accordance with the opinion of the majority the conviction of Muhammad Zafar son of Mumtaz under section 302/34 P.P.C. is restored and he is sentenced to imprisonment for life with payment of fine amounting to Rs.8,000 or in default thereof to suffer further rigorous imprisonment for six months. However, he shall be given the benefit of the provisions of section 382-B, Cr. P.C. in computing the sentence that he has yet to undergo.

41. M.BA./M-1567/S Order accordingly,