ABDUL GHAFOOR Versus STATE

1. MUHAMMAD HALEEM , ACTG. C. J. ‑This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 7th of July, 1976 by which the death sentence of Abdul Ghafoor was confirmed while convicts Muzaffar alias Japho, Sajjad Ali and Liaqat Ali were acquitted.

2. According to the F. I. R., a buffalo of Asghar Ali was stolen, thereupon, Sadiq Ali and deceased Maqbool Ahmad, brothers inter se, tracked the hoof‑prints to the house of Muzaffar alias Japho who managed to escape but the animal was seized and a case of theft was registered against him by the Police at the behest of Asghar Ali. Muzaffar alias Japho thereafter communicated threats to the deceased that he would not be spared and one night before the present incident, he came along with another Sadiq Ali, Allah Rakh a and Farzand to kill him but not finding him in the house he quarreled with Sadiq Ali and in that altercation his son Kausar was murdered and a case of murder was registered against them. On 7th of September, 1972 at namazwela the deceased got up and awakened Sadiq Ali and Zafar and all the three thereafter went out of the Haveli situate in Mauza Hundal, Tebsil Kasur, after opening the door; and as they emerged into the Gali, the appellant, armed with a rifle, along with Muzaffar alias Japho, Sajid Ali, Liaqat Ali and Jamaiat Ali, armed with guns, accosted them and opened fire at the deceased after giving out a lalkara who on being hit by a bullet fell to the ground and expired. Both Sadiq Ali and Zafar ducked down and lay flat on the ground to avoid being hit and, thereafter, crawled into the Haveli. The appellant and others thereafter decamped from there. This incident was also witnessed by Niaz Ali who was then in the lane coming towards them. Sadiq Ali went to Police Station Raiwind which was 9 miles away and lodged the F. I. R. at 7 a.m.

3. From the spot blood‑stained earth, 5 pellets and 5 wads were secured. The appellant and others were arrested on the 13th and the appellant led to the production of a rifle from his house; Muzaffar alias Japho, a sten‑gun, Sajjad Ali, a .12 bore gun and Liaqat Ali a rifle. Jamait Ali did not produce any incriminating article.

4. The deceased suffered one bullet injury and two other injuries with a blunt weapon, described as under :‑

5. "(1) An abrasion on inner side, right arm 2' below axilla 1 x 1"‑ area around is bluish for 2 x 1 .

(2) Abrasion on the top of right shoulder joint 1" x ". 'Abrasion is post‑mortem'."

6. A piece of bullet was extracted from the dead body and chyme (cheorn) was noticed in the stomach and the bladder was full of urine.

7. The prosecution examined Sadiq Ali (P. W. 13), Zafar (P. W. 14) and Niaz Ali (P. W. 15) to establish its case. Recovery witness Adalat Khan (P. W. 11) was also examined to prove the production of weapons.

8. The trial Court, upon an appraisal of the evidence, concluded that it was the rifle shot of Abdul Ghafoor which caused his death followed by shots fired by the others with their respective weapons at the deceased; and further that Sadiq Ali and Zafar had saved themselves "by lying on the ground". Enmity was also taken to be established and for this reason it was held that the evidence required corroboration as to the identity of the several assailants and finding none against Jamait Ali, he was given the benefit of doubt and acquitted. The others were, however, convicted as the weapons produced by them were regarded as sufficient corroboration. The trial Court. also took into consideration the medical evidence as an additional feature in favour of the participation of Abdul Ghafoor which highlighted the injury by a bullet as be was the only person armed with a rifle. They were, therefore, convicted under section 302 read with section 34, C. P. C. and while Abdul Ghafoor was sentenced to death, the others were awarded imprisonment for life and further to pay a fine of Rs. 2,000 each or in default to undergo R. I. for six months.

9. On appeal and reference, while upholding the conviction and sentence of Abdul Ghafoor and acquitting the other three, namely, Muzaffar alias Japho, Sajjad Ali and Liaqat Ali, the High Court discounted the recovery evidence as to the production of the crime weapons not only for the reason that there was delay in the production of the articles but also because they could not be connected with any crime empty as none was at the spot. As for the appellant, the High Court held that as he was the only person stated to be armed with a rifle and the deceased suffered a bullet injury, therefore, in his case, the medical evidence corroborated his participation. The further conclusion, in regard to the other accused is as under :-

10. The rest of three appellants may not have been present at the spot because it is not possible to find with any certainty as to which of them fired and with which weapon. It cannot be said whether one appellant or more than one appellant except Abdul Ghafoor appellant were at all present and fired. The prosecution appears to have exaggerated in deposing that the deceased took his meals in the mid‑night which is unusual and unnatural and which appears to have been done in order to correspond it with the morning prayer time when the deceased is alleged to have been fired at by the appellants."

11. Leave to appeal was granted to consider as to whether the conviction of the appellant could be sustained consistent with the principles of safe dispensation of justice in the facts and circumstances of the case.

12. The trial Court acquitted Jamait Ali on the premises that he was implicated by interested witnesses whose evidence required corroboration but as none was found, his presence was held to be doubtful. The High Court on the same basis acquitted Muzaffar alias Japho who had the prime motive against the deceased, Sajjad Ali and Liaqat Ali after disbelieving the evidence of recovery of weapons and went to the extent of holding that their presence at the spot was equally doubtful and that they had indulged in overstating that they had taken the meals at mid‑night so as to explain the presence of chyme in the stomach and further to correspond it with the morning Namaz call at which time the deceased was said to have been killed. This is not all. The quality of the ocular testimony is also open to doubt in other respects. It is consistently stated that the appellant and those acquitted fired many shots at the deceased with their weapons but only one bullet injury was noticed on him which was attributed to the rifle shot fired by Abdul Ghafoor first. This is an obvious lie and as other shots could not prove ineffective from such a close range or would not leave any pellet or bullet mark on the door or the wall of the house.

13. It is further wholly unnatural to accept that Sadiq Ali or Zafar Ali could escape the shots if they were either together or few paces behind the deceased. The two other injuries by a blunt weapon of which one was inflicted after death stand unexplained for it appears that whoever shot the deceased from a close range had caused these injuries with the butt of the weapon. If at all the incident was witnessed as alleged then it is difficult t accept that no reference to these injuries would be made in the F. I. R. or in their evidence. Sadiq Ali (P. W. 13) had joined the deceased in tracking the hoof‑prints to the house of Muzaffar alias Japho and it does not appeal to reason as to why, of the two, the deceased should be picked up for communicating threats in which case Sadiq Ali could equally have been the target of an attack.

14. Some of the injuries noticed by Gulzar Ahmad, Inspector, were mentioned in the inquest report but the doctor did not find them on the deceased. It, therefore, seems to us startling as to why this police officer had indulged in exaggerating the number of injuries. The crude attempt, however, appears to make it consistent with the number of shots stated to have been fired by the eye‑witnesses. There was also a difference of opinion as to the weapon secured from Abdul Ghafoor; and while this witness stated that it was a rifle, Adalat Khan (P. W. 11), the recovery witness, described it as a '12 bore gun. The eye‑witnesses do not give any reason as to why they and the deceased left together their Haveli at morning prayer time but Sadiq Ali in his cross‑examination wanted to fill in this lacuna and stated that they wanted to ease themselves which again is a suspicious reason in the context of many other infirmities. The presence of 5 pellets and 5 wads1g is also strange and it is not known how they came to be there when there is no other evidence of the gunshots having been fired.

15. Weero (P. W. 10), a recovery witness, deposed to the fact that 5 or 6 crime empties were secured which fact is even stated by Sadiq Ali (P. W. 13). If this was so, then their presence was suppressed as the deceased only suffered a bullet injury probably on the supposition that it would weaken the prosecution case. Apparently, it appears that the deceased had gone out alone to empty his bladder in the darkness of the morning hours and he was shot at by someone without being identified by any of the three prosecution witnesses who were left behind in the Haveli and it was because of this that they were not able to explain their own presence and the other two injuries on the deceased coupled with other infirmities. The facto that the deceased was in constant danger and for this reason they had accompanied him appears to be unjustified as Muzaffar alias Japho had equally the same reason to knock off Sadiq Ali. The High Court has expressed its doubt as to the presence of the acquitted accused and this finding, to all intents and purposes, leads us to conclude that they were falsely implicated. In this background it becomes difficult to accept the reasoning of the High Court that as he was consistently attributed the part of possessing a rifle then it must be he who must have fired. This again leads to the error of relying on the words of the prosecution witnesses whose evidence was held to be tainted and not believable in regard to the others; and as it came from the mouths of those witnesses whose credibility was highly doubtful, such an assertion did not have any corroboratory value for the reason that a bullet injury was noticed as that would only show that someone armed with a rifle had fired the shot but not as regards the identity of the assailant which had to be established by independent corroboratory evidence. Therefore, the case of Abdul Ghafoor cannot be distinguished from those acquitted and he is also entitled to the benefit) of doubt.

16. Accordingly, we would accept his appeal and acquit him. He should be set at liberty forthwith if not required in any other case.

17. Appeal accepted.