MUHAMMAD ASLAM Versus STATE

SAAD SAOOD JAN, J.‑‑ This is an appeal by special leave from the judgment of the Lahore High Court. The appellants, Muhammad Aslam, Nazar Hussain, Mulazam Hussain and Muhammad Razzaq, together with eight other persons, including one Makhana, were tried by the Sessions Judge at Jhelum on charges under sections 302 and 307, read with sections 149 and 148 of the Pakistan Penal Code on the allegations that as members of the unlawful assembly and in prosecution of the common object of that assembly they caused the death of Khadam Hussain deceased and made murderous assault upon three persons, namely, Sabir Hussain, Ghulam Haider and Ahmad Khan. The learned Sessions Judge acquitted the co‑accused but convicted the appellants of offences under sections 302 and 307, read with section 34, of the Pakistan Penal Code. Muhammad Aslam was sentenced to death while the other three appellants were sentenced to imprisonment for life under section 302. In respect of the offences under section 307 they were all directed to suffer rigorous imprisonment for a period of seven years. In addition, they were also directed to pay fines. On appeal and reference the High Court upheld the convictions and sentences of the appellants and confirmed the sentence of death imposed upon Muhammad Aslam.

2. Both parties belonged to Matan Kalan within the jurisdiction of Police Station Kallar Kahar. It was alleged by the prosecution that there was a dispute between the parties over a piece of Shamilat land which was in the exclusive possession of Khadam Hussain deceased. Makhana, co‑accused, wanted to dispossess him from that land. A few days prior to the occurrence Makhana and the deceased exchanged abuses with each other. This incident was described to be the motive for the occurrence.

3. According to the prosecution, on 3‑9‑1980, at 7‑00 a. m. , Khadam Hussain deceased was present in the courtyard of his house and was having tea with Fateh Sher (P.W.9), Ghulam Haider (P.W.10), Ahmad Khan (P.W.11), Sabar Hussain (P.W.12) and some others. The appellants together with their co‑accused came there. They were all carrying fire‑arms. They raised a lalkara. Khadam Hussain and his companions ran to the nearby hill and took shelter in a but (Khola). The appellants and their co‑accused pursued them and then started firing at them. Khadam Hussain deceased was hit by the shot fired by Muhammad Aslam appellant and he died on the spot. Ghulam Haidar (P.W.10), Ahmad Khan (P.W.11) and Sabir Hussain (P.W.12) were shot at by Mulazam Hussain, Nazar Hussain and Muhammad Razzaq appellants, respectively. After the firing, the appellants and their co‑accused ran away with their weapons.

4. The occurrence was reported at Police Post Buchhal Kalan on the same day by Fateh Sher (P.W.9) at 10‑30 a.m. After recording the statement of Fateh Sher (P.W.9) and despatching it to Police Station Kallar Kahar for registration of a case, Syed Rahat Ali Shah, Assistant Sub‑Inspector, proceeded to the spot. He found the dead body lying on top of the hill. He recovered 41 crime empties from two different places on the hill.

5. During the course of investigations fire‑arms were allegedly recovered from the possession of Nazar Hussain and Muhammad Razzaq appellants and two of the co‑accused. Surprisingly, neither the fire‑arms nor the crime empties were sent to the Forensic Laboratory for comparison and expert opinion.

6. The appellants and their co‑accused pleaded not guilty to the charges against them. They denied that they were responsible for causing the death of Khadam Hussain deceased or making murderous assault upon the other members of the complainant party. Makhana, who was the father of three of the appellants and maternal uncle of the fourth appellant, gave a different version of the occurrence. He stated that Khadam Hussain deceased wanted to fircibly appropriate a part of the Shamilat land without the consent of the other co‑owners of the village. For this purpose he collected his relatives on the night preceding the occurrence and started raising stone walls around the land. In the morning when the other cc‑owners of the Shamilat learnt about the designs of the deceased they gathered at the spot and offered resistance. This led to cross‑firing between the deceased and his companions on the one side and the co‑owners of the Shamilat on the other. As a result, the deceased was killed and some of his companions were injured. Apart from producing certain documents neither he nor any of the other accused led any evidence to substantiate this version.

7. In support of its claim that Khadam Hussain deceased was in exclusive possession of a piece of Shamilat land which Makhana wanted to appropriate for himself and the allegation that there was an exchange of abuses between them a few days prior to the occurrence, the prosecution has failed to produce reliable evidence. The patwari did not support its assertion that Khadam Hussain deceased was in exclusive possession of any part of the Shamilat land and the Investigating Officer was not shown by the complainant party that piece of land which was the bone of contention between Makhana and Khadam Hussain deceased. The only person claiming to have seen the quarrel between Makhana and Khadam Hussain deceased was Fateh Sher (P.W.9). He belonged to a different village and according to his own showing he alone had witnessed the verbal altercation and that too by chance. On the other hand, the case of the defence was that the occurrence took place when Khadam Hussain deceased attempted to‑appropriate a part of the Shamilat without the consent of the other co‑owners. However, that may be taken into consideration the fact that reliable evidence is not available to establish the exclusive possession of Khadam Hussain deceased over any piece of Shamilat land and the alleged verbal exchange of abuses between him and Makhana, we are not satisfied that the prosecution has been able to prove the motive set up in this case.

8. The case of the prosecution against the appellants rests entirely upon the ocular testimony furnished by four witnesses namely, Fated Sher (P.W.9), Ghulam Haider (P.W.10), Ahmad Khan (P.W.11) and Sabar Hussain (P.W.12) and Ghulam Rasul (PW.13). Of these, Ghulam Haider (PW.10), Ahmad Khan (PW.11) and Sabar Hussain (PW.12)I were injured during the course of occurrence. Ghulam Haider (P.W.10) was the brother and Ghulam Rasul (P.W.13) was the son of Khadam Hussain deceased. Fateh Sher (P.W.9) and Ahmad Khan (P.W.11) were also related to him. Sabar Hussain (P.W.12) was not his relative but then about a year prior to the occurrence he had lodged an F.I.R. against the appellants and all the other accused in this case in respect of a murderous assault made upon him. He was clearly an inimical witness.

9. Neither the trial Court nor the learned Judges in the High Court regarded the eye‑witnesses produced by the prosecution to be totally reliable, for, despite their testimony they acquitted eight out of twelve persons put on trial. While discussing their testimony, the learned Sessions Judge observed.

"The story of firing towards the village has been concocted by the complainant party in order to involve as many persons of the accused party as they could, as this practice is very common in this part of the country. It is always done in such like cases in order to implicate all the male members of their enemies so that no one should be left to defend their case."

The learned Judges in the High Court did not disagree with the trial Court that the eye‑witnesses here had falsely implicated innocent persons but distinguished the case of the appellants on the ground, solely, that specific roles had been attributed to them in the occurrence. It is difficult to support the basis for making the distinction. Once it was found that the eye‑witnesses were not entirely reliable and despite their testimony eight out of twelve persons originally charged had been acquitted, there should have been some inherent features in the evidence or some independent corroboration to sustain the convictions of the others on a capital charge. The mere fact that the appellants had been ascribed specific roles in the occurrence while this was not so in the case of the co‑accused, would not by itself furnish a safe basis for drawing the distinction.

10. We are also not satisfied that the occurrence took place in the manner described by the eye‑witnesses. In the first information report and in the statements which they made during the course of investigation the version of the eye‑witnesses was that they were taking tea in the open courtyard of the house of Khadam Hussain deceased when the appellants and the co‑accused arrived there with and the eye‑witnesses) started running and took refuge in a Khola on the top of the nearby hill. The appellants and the co‑accused chased them to the Khola and fired at them. Now, it seems unlikely that twelve armed persons who had come with the predetermined object of killing the deceased and his companions would have allowed the latter to scale to the top of a hill which was fairly high and about 200 yards away from the house of Khadam Hussain deceased before opening fire. To get over this improbability, the eye‑witnesses changed the story at the trial and stated that they had already finished the tea when the accused party arrived at the house of Khadam Hussain deceased and that they started to run towards the hill on hearing lalkaras from some distance. This was clearly an improvement. It is to be noticed that the Investigating Officer did not find any supporting evidence which would corroborate the claim of the eye‑witnesses that they were present in the house of Khadam Hussain deceased just before the arrival of the accused party. On the other hand, it appears more likely that the complainant party and the assailants had their first encounter at the top of the hill.

11. As already stated, the Investigating Officer had found 41 crime empties from two spots at the scene of occurrence. To explain away this discovery, on the very day of occurrence Fateh Sher (P.W.9) made a supplementary statement before the police in which he stated that the accused party had split itself into two morchas before firing. At the trial, he disowned this statement. However, the recovery memoranda (Ex.P.K. and Ex.P.L.) prepared by the Investigating Officer clearly mention the existence of two morchas. Now, none of the eye‑witnesses claimed that he was armed at the time of occurrence. That being so, it was unnecessary for the assailants to divide themselves into two morchas before starting to fire; they could have easily come up to the Khola which was open from one side where the deceased and his companions had taken refuge and shoot at them. On the other hand, the existence of two morchas and the recoveries of crime empties from two different spots (22 from one place and 19 from the other) suggest that there was cross‑firing between the parties who were both armed. The circumstances which led the parries to climb to the top of the hill and fire at each other are not satisfactorily explained by the account of the occurrence preferred by the eye‑witnesses. The possibility that the occurrence took place when the complainant party wanted to forcibly take possession of a piece of Shamilat land without the consent of the other owners cannot be precluded.

12. The learned Judges in the High Court were of the view that the medical evidence corroborated the ocular testimony. There is little basis for this finding. According to the eye‑witnesses they were fired at from distances measuring 16 to 18 karams. On the other hand, the medical evidence shows that the wounds of entrance and the holes in the clothes worn by the deceased, Ghulam Haider (P.W.10) and Ahmad Khan (P.W.11) were blackened or charred. Thus, these persons were shot at from a much closer distance than described by the eye‑witnesses.

13. Taking into account the quality of evidence led by the prosecution, it will be most unsafe to sustain the convictions of the appellants on a capital charge. Accordingly, we accept this appeal, set aside the convictions 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.Y.H./M‑386/S Appeal accepted