MAMOON Versus STATE

SAAD SAOOD JAN, J.-- The appellants in these three appeals by special leave were convicted by the Additional Sessions Judge at Sargodha of the offences under section 302, read with section 149, and section 148 of the Pakistan Penal Code for causing the death of Mst. Siftan, her sons, Sher Shah and Rab Nawaz, her sister, Mst. Mehtab Bibi, and the husband of her sister, Mian Ahmad. On each count under section 302 they were sentenced to death and to pay fines and under section 148 they were directed to suffer rigorous imprisonment for a period of two years. On appeal and reference, the High Court upheld their 'convictions and confirmed the sentences of death. Together with them, Mst. Sarwar Khatoon, daughter of Mst. Siftan, was also convicted of the said offences and sentenced to death. The High Court maintained her convictions on capital charges but reduced her sentences to imprisonment for life. She has not cared to appeal. We have been told that on her mercy petition her sentence has been remitted and she has since been released.

2. The occurrence took place on the night between 30th November and 1st December, 1971 in the haveli of Mst. Stan in village Khoora within the jurisdiction of Police Station Nowshera, District Sargodha. It was alleged by the prosecution that on the said night the four appellants, armed with hatchets, entered the haveli and chained the door from inside. Mst. Sarwar Khatoon was already present there. On her exhortation the four appellants killed Mst. Siftan, her sons, her sister and her sister's husband by inflicting hatchet blows on them. After the occurrence the four appellants together with Mst. Sarwar Khatoon went to the house of Ghulam Muhammad appellant which was 400 yards away.

3. According to the prosecution the occurrence was witnessed by Malik Mansab Khan (P.W.3) and Saleh Muhammad (P.W.4). They sent one Ghulam Ali to Khushab, 28 miles away, to apprise Sher Muhammad (P.W.1) of what had happened. After learning about the occurrence Sher Muhammad (P.W.1) started for Khoora. He met Sub-Inspector Muhammad 2aman (P.W.14) at the bus-stop at Khushab. He made a statement before the Sub-Inspector. The time was then 7-00 a.m. On the basis of this statement a case was registered at Police Station Nowshera at 9-30 a.m. on the same day.

4. The post-mortem examination on the persons killed during the course of occurrence was performed by Dr. Mumtaz Ahmad who was at the relevant time posted as Medical Officer at Khushab. All the deceased had numerous incised weapon injuries on their bodies. These were located mainly on the heads and necks, leaving no room for doubt that the intention of their assailants was to kill them.

5. All the four appellants were arrested on 26-12-1971. After his arrest Ghulam Muhammad appellant led a police party to a hillock near the village and from there dug out a blood-stained hatchet and a blood-stained shirt. The blood on these articles was later found to be of human origin.

6. It was further alleged by the prosecution that on the morning of 26-12-1971 Mst. Sarwar Khatoon was found on the outskirts of the village by Sarwar Khan (P.W.11) and one Mossam Khan. She made a statement before them. In this statement she confessed that she and the four appellants were responsible for causing the death of her mother, brothers, maternal aunt and uncle. Sarwar Khan (P.W.11) and Mossam Khan produced her before A.S.I. Haq Nawaz (P.W.13) who then arrested her.

7. The four appellants pleaded not guilty to the charges against them. They denied their participation in the occurrence and alleged that they had been falsely implicated. Mst. Sarwar Khatoon denied that she had made any confessional statement before Sarwar Khan (P.W.11) and Mossam Khan. No witness was produced in defence.

8. The case against the appellants rested upon the ocular testimony provided by Malik Mansab Khan (P.W.3) and Saleh Muhammad (P.W.4), the extra-judicial confession allegedly made by Mst. Sarwar Khatoon before Sarwar Khan (P.W.11) and Mossam Khan and the recoveries of a blood-stained hatchet and a shirt at the instance of Ghulam Muhammad. The trial Court as well as the High Court accepted the entire evidence.

9. As regards the motive, there were two versions. One was given in the first information report. According to this version Sher Shah deceased had promised to give his sister, Mst. Sarwar Khatoon, in marriage to one Noor Muhammad, an Awan of the village. Later, Sher Shah went back on his promise. This enraged Noor Muhammad who with the help of four other persons killed Sher Shah and the other occupants of the haveli. This version was given up at the trial by the prosecution and another version was offered. According to the second version Mst. Sarwar Khatoon was carrying on an intrigue with Ghulam Muhammad appellant. When Sher Shah and his family learnt about this liaison, they decided to murder Ghulam Muhammad. Mst. Sarwar Khatoon informed Ghulam Muhammad appellant about the designs of her family against him. In order to forestall any attack upon him, Ghulam Muhammad with the help of the other appellants wiped out the members of her family.

10. In order to prove the second version the prosecution did not lead any independent evidence of its own but relied entirely upon the confessional statement allegedly made by Mst. Sarwar Khatoon. The High Court as well as the trial Court accepted this statement as substantially true and held that it not only established the motive but also corroborated the ocular testimony. Now, as already mentioned Mst. Sarwar Khatoon was alleged to have made that statement before Sarwar Khan (P.W.11) and Mossam Khan. Of these only Sarwar Khan (P.W.11) was examined by the prosecution at the trial. In his statement before the Committing Magistrate this witness admitted that Mst. Sarwar Khatoon had made her confessional statement only once before him and that she did so in the presence of the police. At the trial he denied having made any such admission before the Committing Magistrate but then there is no reason why the accuracy of the record maintained by the learned Magistrate should be doubted. It was not the case of the prosecution that Sarwar Khan (P.W.11) enjoyed any magisterial powers. Thus, the confessional statement allegedly made by Mst. Sarwar Khatoon was inadmissible in evidence by operation of the bar contained in Section 26, Evidence Act. In view of this legal position, it is entirely un-necessary to refer to circumstances which appear to cast doubt on the genuineness of the alleged confession. The High Court and the trial Court were not right in using it as evidence in the case. Thus, the second version with regard to the motive does not stand established from the record.

11. The eye-witness account was provided by Malik Mansab Khan (P.W.3) and Saleh Muhammad (P.W.4). Of these, Malik Mansab Khan was a first cousin of Mian Ahmad deceased. Apparently, neither of them lived in the neighbourhood of the haveli. According to their account, on the evening preceding the occurrence they had visited one Abbas Khan, an old and ailing person, whose house was just across the street from the haveli; they stayed with him for about four and a half hours; as they left his house they heard cries coming from inside the haveli; they found the door of the haveli chained from inside; they managed to peep through the holes of the outer door and witnessed the attack by the four appellants on Mst. Siftan and other inmates of the haveli. They explained that it was a moon-lit night and chimneys were burning inside the rooms of the haveli.

12. On their own showing the two eye-witnesses arrived at the spot by chance. If we consider the time of the occurrence and the weather in which it took place the explanation offered by them for their presence at the spot seems unconvincing. It is most unlikely that they would have stayed with a sick person, not related to them, who was not only coughing but running a temperature for four and a half hours. The inmates of the haveli were killed inside the two rooms as the recovery of blood-stained earth would indicate. These rooms were at some distance from the outer door of the haveli. It is difficult to believe that just by peeping through the holes of the outer door the two eye-witnesses could see the actual assault on the inmates in such details as they gave at the trial. It is also surprising that on seeing the attack on Mst. Siftan and the other members of the family they did not make any effort to save them, particularly, when a cousin of one of them was inside the haveli and was being done to death. The site plan will show that the haveli was situated in the midst of a thickly populated area. Had the eye-witnesses raised an alarm they would have been able to attract a large crow to the spot for rescuing the inmates of the haveli. Their conduct on the occasion in remaining silent spectators while a gruesome tragedy was being enacted seems unnatural.

13. According to the eye-witnesses they summoned one of their relations Ghulam Ali and sent him to Sher Muhammad (P.W.1) to inform him about the occurrence. In the statement which Sher Muhammad (P.W.1) made before the Sub-Inspector, none of the appel lants was mentioned as an assailant. In fact in this document the only person specifically named was one Noor Muhammad Awan. All the appellants are barbers by caste. At the trial the said Noor Muhammad did not figure at all in any capacity. If Malik Mansab Khan (P.W.3) and Saleh Muhammad (P.W.4) had actually seen the occurrence, it is not likely that they would have failed to give:, the names of the assailants to Ghulam Ali before despatching him to Khushab.

14. Police Station Nowshera was only 8 miles away from the village. Instead of reporting the occurrence at the police station, the eye witnesses chose to send the information first to Sher Muhammad (P.W.1)- Their explanation for doing so was that Sher Muhammad (P.W.1) exercised influence in the locality. This explanation is also not satisfactory. Khoora is a large village with a number of lambardars. It is somewhat unusual that instead of seeking the assistance of one of the local lambardars in reporting the incident to the police the eye-witnesses chose to invoke the aid of Sher Muhammad (P.W.1) who lived 28 miles away.

15. According to Sher Muhammad (P.W.1) he reached the village at 8-00 a.m. and met the two eye-witnesses. He stated that till noon the eye-witnesses did not tell him about the identity of the assailants. Their reticence on the occasion seems inexplicable and is inconsistent with their claim that they had actually seen the attack on the inmates of the haveli.

16. Although Sher Muhammad (P.W.1) claimed that Mst. Siftan was a first cousin of his father but when pressed in cross-examination he was unable to substantiate his claim in this regard with any measure of certainty. On the other hand, he could not have been very friendly with the family of Mst. Siftan for Sher Shah deceased, son of Mst. Siftan, had obtained a decree in a pre-emption suit against him. It is also to be noticed that all the un-official witnesses produced by the prosecution were in one way or the other related to him.

17. It will thus be seen that the eye-witness account in this case was wholly unreliable. The extra-judicial confession attributed to Mst. Sarwar Khatoon was inadmissible in evidence. These were the main props of the case of the prosecution. In the circumstances there was no reliable evidence upon which the conviction of the appellants on capital charges could be safely rested. Accordingly, we accept these appeals, set aside the conviction and sentences of the appellants and acquit, them of the charges against them. They shall be set at liberty forthwith if not required in any other case.

M.I./M-248/S Appeal accepted.