MUHAMMAD ASLAM Versus THE STATE
RIAZ AHMED, J.‑‑ The appellants Wali Muhammad son of Sampan aged 70 years, his son Muhammad Tufail aged 35 years, Mehboob son of Baggu aged 55 years and his son, namely, Muhammad Aslam aged 22 years, all Dogar by caste and cultivators by profession residents of Chak No. 36/12‑L Chichawatni were tried by the learned Sessions Judge at Sahiwal on the charge under section 302 read with section 34 of the Pakistan Penal Code for having committed the murder of Nazir Ahmad. The learned Sessions Judge vide his judgment dated 17‑2‑1985 found all the appellants guilty on the said charge, accordingly, all the appellants were convicted and sentenced.
Muhammad Aslam appellant was sentenced to death and to pay a fine of Rs. 10,000 or in default of the payment of fine, to suffer further rigorous imprisonment for a term of three years.
Appellants Wali Muhammad, Muhammad Tufail and Mehboob were sentenced to undergo life imprisonment, and to pay a fine of Rs. 10,000 each, or in default of the payment of fine, to suffer further rigorous imprisonment for a term of three years each. Appellants were further directed to pay the compensation amounting to Rs. 10,000 each to the legal heirs of the deceased, or in default whereof, to suffer further rigorous imprisonment for a term of six months.
2. Aggrieved by their conviction and sentences the appellants Wali Muhammad and his scan Muhammad Tufail have assailed the same by way of filing a Criminal Appeal No. 44 of 1985 and the appellants Mehboob and his son Muhammad Aslam have filed a Criminal Appeal No. 48 of 1985. The case has also been referred to us under section 374, Cr.P.C., and the complainant has also filed a Revision Petition No. 54/58 seeking enhancement of the sentence from life imprisonment to death awarded to the appellants Wali Muhammad and his son Mehboob. This judgment shall dispose of both the appeals. the criminal revision and the reference.
3. The occurrence resulting into the death of Nazir Ahmed deceased took place on 6‑12‑1982 at about 2.75 p.m. in Chak No. 36/12‑L Chichawatni situated at a distance of three miles from Police Station Chichawatni. The occurrence was reported at the police station by Muhammad Sarishta P.W.‑6 a real brother of the deceased on 6‑12‑1982 at 3 p.m., vide FIR Exh. PC which was recorded by Muhammad Amin Muharrir Head Constable.
4, The prosecution case as disclosed by the first informant in the FIR is that he and his three brothers, namely, Faqir Muhammad, Nazir Ahmed and Sardar Muhammad jointly owned land in Chak No. 36/12‑L and in Killa No. 11 of square No. 22, they had installed a tubewell to irrigate the land measuring 17 acres owned by all the brothers. According to the complainant, they had sowen Barseen in the said area, and on the day of occurrence they had put fertilizer in the said crop of Barseen. The complainant and his brother Faqir Muhammad came to the tubewell, and asked their deceased brother Nazir Ahmed to bring the fertilizer on the cart. The complainant and his brother Faqir Muhammad were waiting for the arrival of Nazir Ahmed, when in the meanwhile, Muhammad Sarwar son of Oasim Ali while proceeding to his house from his land also joined both the brothers for a gossip. At about 2.15 p.m. Nazir Ahmed reached alongwith two bags of fertilizer laden on the cart on the pathway towards the southern side of Killa No. 11 and started unloading the bags of fertilizer. He had hardly unloaded one bag, and was busy in the process of unloading the other bag when suddenly the appellants Muhammad Tufail, Muhammad Aslam, Mehboob and Wali Muhammad emerged from the side of wall situated nearby, and raised a Lalkara, that they had come to avenge the murder of Suba. Appellant Aslam allegedly fired a shot from a .12‑bore pistol hitting the deceased on chest. On the receipt of this shot, the deceased Nazir Ahmed fell down. The complainant and his brother proceeded ahead towards their deceased brother Nazir Ahmed, when Muhammad Tufail fired a shot towards them, which the complainant and his brother warded off by sitting down. All the appellants after assuring themselves that the deceased had breathed his last escaped from the scene of occurrence.
Motive for the commission of crime as narrated by the complainant was that, Suba a brother of Mehboob appellant was murdered by complainant side, therefore, to avenge the said murder, the appellants after preparation had committed the murder of Nazir Ahmed deceased.
5. On 7‑12‑1982 dead body of the deceased was sent to the mortuary for post‑mortem examination, and on the same day, Dr. Saleem Safdar, Medical Officer Civil Hospital Chichawatni performed the post‑mortem examination on the dead body of the deceased, and the following injuries were noticed on the dead body of Nazir Ahmed deceased:‑‑
(1). Nine punctured wounds in an area of 11 cm x 9 cm x deep going over front middle left chest around the left nipple. Each wound was measuring 1 cm x 13/4 x deep going with averted edge.
(2). Punctured wound 1/2 cm x 1/2 cm x deep going with inverted edge over back, liver side of left chest. This was the wound of exit.
(3). Blackening rounded marking 3 cm above the left nipple over left middle chest.
(4). Incised wound 10 cm x 1/2 cm x skin deep over inner side of left forearm (middle).
(5). Incised wound 8 cm x skin deep over inner side of left forearm (middle).
The doctor noticed nine punctured wounds on the left side of the ribs causing fracture of 5th and 6th ribs. Seven punctured wounds were noticed in the left lower lung while three punctured wounds were noticed in the left ventricle. Three punctured wounds were noticed in the stomach. In the opinion of the doctor, death was caused due to cardiac damage, which was sufficient to cause death in the ordinary course of nature.
6. On 16‑12‑1982, all the appellants were arrested by Abdul Ghafar Sub Inspector P.W.‑9, but nothing could be recovered from them. However, the Investigating Officer secured the blood‑stained earth, bags of the fertilizer and the cart.
7. At the trial the prosecution in order to prove its case placed reliance upon the ocular testimony furnished by Muhammad Sarishta P.W.‑6 real brother of the deceased and Muhammad Sarwar P.W.‑7 a cousin of the deceased who had joined both the complainant Muhammad Sarishta P.W.‑6 and Faqir Muhammad while waiting for the deceased to arrive with the fertilizer. Faqir Muhammad though cited in the FIR as eye‑witness was given up as unnecessary.
8. When examined under section 342, Cr.P.C. to explain the evidence adduced against them by the prosecution, all the appellants denied the charge and stated that they had been falsely implicated. Mehboob appellant in addition to his false implication also stated that the deceased used to keep a pistol with him, because he had enemies. His pistol went off all of a sudden incidentally, and the appellants were involved falsely on account of enmity due to the murder of Suba. This piece of statement was adopted by all the three appellants.
9. With the assistance of the learned counsel for the appellants, we have carefully gone through the record of the case, and we have also heard the various contentions raised by learned counsel for the appellant and the State.
At the very outset, it may be stated here that the facts of the case indicate blood feud. between the complainant side and the accused side. Complainant Sarishta P.W.‑6 stated that Suba brother of Mchboob also was murdered in 1953, and for the said murder, he alongwith his brother Faqir Muhammad (given up P.W.) and Akram his brother‑in‑law were tried for the said murder and were sentenced. Thereafter, Muhammad Yousaf, a brother of Wali Muhammad also was murdered and again the complainant his brother Faqir Muhammad and Sarwar P.W.‑7 were charged for the said murder. In this behalf it is further pertinent to mention that the complainant Sarishta P.W.‑6 was sentenced to undergo life imprisonment for the murder of Suba and the complainant had undergone the said sentence. The complainant admitted in cross‑examination that though Nazir Ahmed deceased was not named in the FIR with regard to the murder of Suba deceased, but he was present in the fight. Faqir Muhammad a brother of the complainant a given up eye‑witness was sentenced to three years rigorous imprisonment in the murder of Suba but was acquitted in appeal. Wali Muhammad appellant had got a case registered against the complainant and Nazir Ahmed deceased for the commission of offence under section 440, P.P.C., and the said case was pending adjudication in a Court of law. The complainant also admitted that Babu a nephew of Wali Muhammad appellant had filed a complaint against the complainant under section 307, P.P.C. for having committed the murderous assault upon him. The complainant also admitted that the occurrence as to the murderous assault of the said Babu had taken place a day before the murder of Nazir Ahmed deceased. Complainant and P.W.‑7 Sarwar both the eye‑witnesses admitted that they were accused for the murder of Yousaf a brother of Wali Muhammad appellant. The said murder case was also pending adjudication at the time of the recording of evidence in this case.
In the background of such enmity and blood feud between the parties, it was strenuously argued that the testimony in this case was tainted, because the eye‑witnesses were interested arid inimical towards the appellants, therefore, strong corroborative evidence was required to sustain the conviction of the appellants. It was further argued that since no corroboration from an independent source was brought on the record by the prosecution, therefore, the conviction of the appellants was liable to be set aside.
Arguments raised by the learned counsel for the appellants are not a novel or new arguments, these arguments have been the subject of the debate in various cases on this issue, and as far as back in the year 1960, the Supreme Court of Pakistan in a case reported as Niaz v. the State P L D 1960 SC 387, the said august Court laid down the following rule of law:‑
Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it."
The said rule of law was again clarified by‑ the Supreme Court of Pakistan in the case reported as Nazir and others v. The State P L D 1962 SC 269 and the following observations were made:‑
"There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration.
For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstances relied upon must have a bearing on this question. In the case of an interested witness, the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing.
Circumstances corroborating the eye‑witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject‑matter of the proceedings; (2) that the persons named as culprits were such as would be expected to join in the attack."
In the light of the rule of law laid down by the Supreme Court of Pakistan, we are of the view that the prosecution case as unfolded and narrated by complainant Sarishta P.W: 6 and Sarwar P.W.‑7 rings true. Recovery of the fertilizer from the spot and the cart at least indicates that the deceased in fact had to bring the fertilizer and Sarishta complainant was waiting for his arrival to use the said fertilizer in the Baiseen field.
10. In course of the hearing of this appeal, it was brought to our notice that both the complainant and the accused party have patched up their differences. In the case of murder of Yousaf brother of Wali Muhammad appellant the complainant and the co‑accused in this case have been pardoned subject to the condition that the complainant in this case would also pardon the appellants.
To judge the genuineness of the compromise, we summoned the .complainant in Court to examine him. After recording the statement, we are satisfied that the compromise is genuine, therefore, respectfully following the judgment of the Supreme Court of Pakistan delivered as Iftikhar Ahmed v. The State P L C 1982 SC 277 we maintain the conviction of Aslam appellant, but alter his death sentence into life imprisonment. Appeal presented by Aslam appellant is disposed of in the terms stated above.
Adverting to the case of the rest of three appellants, namely, Wali Muhammad, Tufail and Mehboob, we are of the view, that no overt act was attributed to Muhammad Tufail, and it was admitted by Sarwar P.W.‑7 in cross -examination, though according to the FIR he was attributed a pistol shot towards the complainant and the eye‑witnesses. In this view of the matter, and for the safe administration of justice, we doubt the participation of this appellant in the commission of crime. Accordingly, we hold that the prosecution has failed to establish its case against these appellants beyond any shadow of doubt. It is also pertinent to mention that Wali Muhammad was not at all attributed any role except a Lalkara, which in our view is proverbial in nature and since we doubt his participation, therefore, we cannot believe that the attribution of Lalkara is true. Consequently, we allow the appeals preferred by Wali Muhammad, Tufail and Mehboob appellants, they are acquitted of the charge, they are already on bail and they are discharged from their bail bonds.
11. Adverting to the revision petition filed by the complainant seeking enhancement of sentence from life imprisonment to death awarded to Wali Muhammad, Tufail and Mehboob appellants, the same has been withdrawn on account of the compromise. Accordingly, the said revision petition stands disposed of having been withdrawn. Reference is answered accordingly.
M.Y.H./M‑548/L
Appeal partly allowed.