ASGHAR ALI ALIAS SABAH Versus STATE

JUSTICE SHAFIUR RAHMAN (CHAIRMAN): --The State as well as the four convicts have appealed against the judgment of Special Court for Speedy Trials No.II, Lahore, dated 14-5-1992. The grievance of the State is against the non-imposition of compensation under section 544-A of the Criminal Procedure Code on the three convicts under section 302/34, P.P.C. and against the acquittal of Abdur Rehman, Muhammad Saleem Chauhan son Abdur Rehman and Abdul Latif son of Muhammad Shafi, accused of conspiracy in the case. The three convicts Asghar Ali alias Saba, Muhammad Afzal and Zulfiqar are aggrieved by their conviction under section 302/34, P.P.C. on two counts and under section 324, P.P.C. read with section 337-F of the Pakistan Penal Code. The further convict Muhammad Salim son of Siraj Din, Driver of Asghar Ali convict is aggrieved by his conviction under section 201, P.P.C. He has joined the three other convicts for the substantive offences in their appeal against conviction and sentence.

2. The prosecution case in brief is that Parvez Sultan deceased was the Chairman of the Market Committee, Sumandari, and also a Member of the Provincial Assembly elected in November, 1990 defeating Mehdi Khan of the accused party. On the night of 17th of August,1991, Parvez Sultan returned from Lahore and came straight to the Office of the Market Committee where he reached at about 9-15 p.m. At about 9-30 p.m. while he was sitting in that office in the company of Muhammad Ashraf (P.W.5), Muhammad Ali (P.W.6), Bashir Ahmad (not produced), Akbar Ali (deceased) and Arshad Ali a son of Akbar Ali deceased, all of a sudden, Asghar Ali armed with a 7mm Klashnikov, Zulfiqar armed with a rifle appeared on the scene in the company of another unidentified person later found to be Muhammad Afzaal armed with Klashnikov and they started firing at Parvez Sultan whereby Parvez Sultan was fatally injured and died. Akbar Ali also received injuries and died on the 19th of August, 1991. Arshad Ali his son was also injured. Ghulam Rasool, the brother of Parvez. Sultan went to the Police Station and lodged the report about the occurrence at 9-50 p.m. which was recorded by Muhammad Sabir Moharrir Head Constable (P.W.24). The injured were taken to the hospital where Shabbir Khan Niazi (P.W.29) reached and took up the investigation of the case.

3. In the F.I.R. the background for the occurrence provided was that in the earlier elections in 1985 and 1988 Mehdi Khan had contested the elections with the deceased Pervez Sultan and defeated him but in 1990 elections Mehdi Khan was defeated. A few months before the occurrence, Mehdi Khan was murdered for which five persons were charged. The police during the investigation found three of the charged persons to be innocent and placed them in column No:

2. Abaur Rehman, the co-accused of the appellants/convicts who was brother of Mehdi Khan, and the other relatives of Mehdi Khan felt in view of the election rivalry between Parvez Sultan and Mehdi Khan that Parvez Sultan had been instrumental in causing that murder and also getting the three of the accused named in the FIA. declared as innocent. As a matter of fact Muhammad Arshad (P.W.8) had, informed Ghulam Rasool that he was present on 16-8-1991 at the Dera of Abdur Rehman where he alongwith his son Salim, nephews Asghar and Abdul Basit, sister's son Zulfiqar' entered into a conspiracy for doing away with Pervez Sultan on account of the rivalry, the enmity and the murder case proceedings of Mehdi Khan. It was also mentioned that the head of one Latif, not related to accused party but their supporter had been shaved under the orders of Parvez Sultan for his misconduct which too had been taken as an insult by the complainant. In prosecution of this conspiracy, the murder of Parvez Sultan, Akbar Ali and injuries to Arshad Ali had been caused.

4. During the course of the investigation, the Investigating Officer recovered 17 empties of. Klashnikov from the spot and seven 'pieces of led bullets. A number of other persons, Abdur Rehman, Latif, Adalat, Salim, Khizar Hayat, Farooq, Major Abdul Basit, Abdul Khaliq and Ghazanfar were arrested in connection with this crime and were made to face their trial. Major Abdul Basit got himself released from the jail on forged papers and remained an absconder during the course of the trial.

5. The medical examination of the injured Akbar Ali -(since dead) showed as hereunder:--

"Injury:--A fire-arm wound of inlet 1/3 c.m. x 1/3 c.m. with the continuous wound of exit upon right half of forehead. It was 5 c.m. above and the outer side of right eyebrow. Its margins were inverted.

Wound of exit.--A wound of exit 1 c.m. x 1 c.m. with the continuous wound of entry upon the forehead close to the left side of mid-line. It was 4 c.m. above the inner side of left eyebrow, underlying frontal bones were fractured:"

Arshad Ali, his son, had also a fire-arm injury as hereunder:--

"A fire-arm wound of entry 1/2 x 1/2 c.m. with the continuous wound of exit at the outer side of right thigh. It was 15 c.m. above the right knee joint. Margins were inverted. X-Ray was advised.

Wound of exit.--Wound of outlet 6 c.m. x 2-1/2 c.m. with the continuous wound of entry. It was 4 c.m. above right knee joint. There was corresponding hole at the shalwar. Pulse was 100 per minute. BP was 110/60."

Parvez Sultan had on his dead body the following injury:--

"A fire-arm wound of inlet 1/2 c.m. x 1/2 c.m. with continuous wound of outlet, upon right half of chest. It was 5 c.m. away from spinal cord (mid-line). Ifs margins were inverted, blackish and scortched.

Wound of exit.--It was 3 c.m. x 3 c.m. x continuous wound of entry at the front of chest, slightly outside. It was 5:c.m. below and outer side from left nipple. It was 16 c.m. away from mid-line. Margines were everted."

6. On the death of Akbar Ali, Dr. Altai Pervaiz Qasim (P.W.2) performed his ? post-mortem.

7. Muhammad Afzaal, the unidentified accused mentioned in the F.I.R. was found to be an Assistant Sub-Inspector. He led to the recovery of the Klashnikov. Zulfiqar led to the recovery of motorcycle and a 7 mm rifle.

8. At the trial the prosecution produced four doctors; three of the doctors who had examined the injured or performed the autopsy and the fourth Radiologist who had X-Rayed the injured. The eye-witnesses produced in the case were Ghulam Rasool (P.W.4), Muhammad Ashraf (P.W.5) and Muhammad Ali (P.W.6). Bashir Ahmed, an eye-witness was not produced as he had failed to identify in the identification parade Muhammad Afzaal and was considered by the complainant to have been won over. An important eye?witness, Arshad Ali, who was injured in the occurrence and was son of Akbar Ali, who had been shot dead, refused to make any statement saying that he had no connection with any of the parties at all. Mehr Muhammad Iqbal (P.W.3) the Magistrate who conducted the identification parade was produced but he admitted that his record of the identification proceedings did not disclose in what connection and for what matter the appellants were identified by the eye-witnesses other than Bashir Ahmed. The evidence of conspiracy came from Muhammad Arshad (P.W.8) and Abdul Rahman (P.W.9). The recoveries were proved by Muhammad Anwar (P.W.13). The expert opinion identified six empties to be from the Klashnikov recovered from Salim accused and six from the weapon recovered at the instance of Muhammad Afzaal.

9. The accused including the appellants denied their presence or participation in the crime. As regards the motive, all the accused said that except for participating in the elections, there was no rivalry, enmity or hostility between the deceased Sultan Parvez and Mehdi Khan or his relatives, nor did they suspect Parvez Sultan of having influenced prejudicially the investigation in the murder case of Mehdi Khan. Asghar Ali accused admitted that Sultan Parvez was their political opponent. He had defeated Mehdi Khan in Provincial Assembly election held in 1990 but in the earlier elections of 1985 and 1988 Mehdi Khan had defeated Parvez Sultan. The other accused Muhammad Afzaal and Zulfiqar made the statement that Mehdi Khan had not contested the Provincial Assembly election of 1990 but had contested the National Assembly election against Abdullah Ghazi. They denied having got recovered the weapons. They produced in defence five witnesses. The thrust of the defence evidence was that the occurrence took place between 9-00 p.m. and 9-30 p.m. There was scheduled load-shedding which in fact had taken place in the area where murder had taken place and that the assailants had not been identified and this the contemporaneous wireless messages transmitted by the Police themselves showed.

10. The Trial Court felt that both the parties to the occurrence were politically very influential persons, that one of the absconding accused major Abdul Basit had been successful in obtaining his release on forged papers. The Trial Court held that "the family of Abdur Rahman accused had a motive against Parvez Sultan". The refusal of Arshad Ali injured witness (son of Akbar Ali) to make a statement was interpreted as hereunder:----

"He was perfectly justified in making that statement. He did not want to risk his own life. I am not prepared to draw any inference against any of the parties on the ground that Arshad Ali the injured witness did not make statement in Court."

11. The medical evidence was found to be in conformity with the ocular evidence. The Court refused to believe that the murder had taken place during the load-shedding period on the following reasoning:----

"I am not prepared to accept that the firing took place during darkness. It was a planned murder. A sitting MPA was to be murdered. The accused could not take the risk of firing shots in the darkness. It appears that they waited till the time the light was switched on and soon after the electricity light was on, the occurrence took place. Had the accused fired in the darkness, there was every possibility of the escape of Pervaiz Sultan deceased. The only target was Pervaiz Sultan deceased and the accused wanted to be sure that the target does not escape death and for this reason, Pervaz Sultan deceased was fired at when the light came. The site plan shows that there were at least two bulbs at the office of the Market Committee."

12. The Trial Court at the very initial stages acquitted Abdul Khaliq, Ghazanfar, Adalat, Khizar Hayat and Farooq under section 265-K of the Criminal Procedure Code. After the trial, the conspiracy evidence was not believed and the accused thereof namely, Abdul Rehman, Latif and Salim Chauhan were acquitted on the conspiracy charge. The conclusion recorded after examining the statement of the two witnesses of conspiracy was as hereunder:-- .

"I reject their statements. The prosecution failed to prove the conspiracy through reliable and disinterested evidence. I acquit Abdul Rehman, Muhammad Salim son of Abdul Rehman and Abdul Latif accused of all the charges. They shall be set free if not required in any other case."

On this conclusion, the following conviction and sentence was recorded:----

"(1) ????? In view of the above discussion, I hold that Asghar Ali alias Sabah armed with Klashnikov, Muhammad Afzaal armed with Klashnikov and Zulfiqar accused armed with Rifle, fired shots at Pervaiz Sultan deceased, Muhammad Akbar deceased and Arshad Ali PW and the case stood proved against them beyond any reasonable doubt. I convict Asghar Ali alias Sabah, Muhammad Afzaal and Zulfiqar accused under section 302/34, P.P.C. on two counts for committing Qatl-i-Amd of Pervaiz Sultan and Akbar Ali deceased and sentence each of them to death by way of Qisas on each of the two counts. They shall be hanged by the neck till they be dead.

(2) I further convict Asghar Ali alias Sabah, Muhammad Afzaal and Zulfiqar accused under section 324/34, P.P.C., read with section 337-F. According to prosecution version, hurt had been caused to Arshad Ali when murderous assault was made on him. The accused is liable to Daman and may also be punished with imprisonment of either description for a term which may extend to five years. Value of Daman has been prescribed in section 337-Y.

(3) Keeping these provisions in view, while convicting Asghar Ali alias Sabah, Muhammad Afzaal and Zulfiqar accused under section 324/34, P.P.C. read with sections 337-F and 337-Y, I sentence the said three accused to R.I. for five years each and direct that each of them shall pay Rupees one lac to Arshad Ali PW. It is correct that Arshad Ali P.W. had declined to make statement in Court but the eye-witnesses had clearly involved the three accused in their statements and according to the eye7witnesses, Muhammad Afzaal accused had fired at Arshad Ali PW with Klashnikov and caused him injury.

(4) Salim accused was convicted for the reason that `murders had been committed and murderous assault made on witnesses and with the intention of screening offenders from legal punishment, Muhammad Salim son of Siraj Din accused caused the evidence of use of Klashnikov P.55 in the commission of offences, to disappear.' He was held guilty under section 201, P.P.C. and sentenced to undergo R.I. for seven years and a tine of Rs.10,000 or in default in payment of fine, to undergo further R.I. for one year."

13. After hearing the learned counsel for the State, the convicts, and the complainant, and examining the record in its entirety, we find that the material on record was not sufficient for convicting the appellants on its basis.

14. As regards the motive it appears from the conclusion reached by the Trial Court itself that the murder of Mehdi Khan had not taken place at the instance of Parvez Sultan. The conclusion of the Trial Court is recorded as hereunder:----

"As it is clear from the record, the family of Mehdi Khan deceased murdered the father of murderers of Mehdi Khan about 20-21 years ago and after this long period his sons took revenge by murdering Mehdi Khan deceased. It was stated that the murder of Mehdi Khan was committed by his enemies. In this part of the country, the family of a murdered person always thinks of taking revenge and the enmity goes on for generations."

Ghulam Rasool (P.W.4) stated with regard to the motive as hereunder:----

"Four five months before the present occurrence, Mehdi Khan deceased was murdered by his enemies. A case was registered about his murder on the statement of Abdul Rehman accused. I do not knew who were named in the F.I.R. as murderers of Mehdi Khan. In that murder case, three accused were declared innocent while two were challaned. The relatives and brother of Mehdi Khan deceased suspected my brother Pervaiz Sultan that he had a hand in the murder of Mehdi Khan and that he got the head of Abdul Latif shaved.------------The family of Mehdi Khan had committed the murder of the father of murderers of Mehdi Khan about 20 years ago and the sons took revenge after 20 years. I do not know if the complainant of the murder case of Mehdi Khan filed any complaint against the persons who were discharged in the murder case of Mehdi Khan. I do not ? know if the murder case of Mehdi Khan was re-investigated. From our family, none appeared in defence during the investigation of the murder case of Mehdi Khan."

15. As regards the political rivalry, Ghulam Rasool (P.W.4) admitted that in spite of the win by the Mehdi Khan in 1985 and 1988 and that of Parvez Sultan in 1990, no litigation, complaint or illwill had followed to reflect that rivalry. It was a peaceful and. ordinary political contest. From an officially published document i.e., "Report on the General Election 1990 (Volume II) containing detailed result of Election," at page 183 we find the following position reflected:--

"PP-50 Faisalabad-VIII

1. Mr. Pervez Sultan ???????????????? (IJI) ????? 41,333

2. Ch. Muhammad Aslam ???????? (PDA) ? 16,657

3. Mr. Muhammad Anwar ??????? (Ind) ???? 389

4. Mr. Mchdi Khan ????????????????? (Ind) ???? 147

5. Haji Muhammad Yasin ???????? (Ind) ???? 119"

It would show that Mehdi Khan as an independent candidate had received 147 votes while Parvez Sultan as an Islami Jamhoori Ittehad candidate received more than 41,000 votes. This would not generate a rivalry of the description A which has been attributed.

16. According to the prosecution case itself, the deceased Parvez Sultan had gone to Lahore. He had returned at 9-15 p.m. and had come directly to the office of the Market Committee. He had come only minutes before and going by the established evidence it would be a period of load-shedding. His exact time of arrival there could not have been known to the appellant /accused for certain because he could have gone to his own house instead of coming to the office at that late hour. One material piece of evidence which has not been taken note of and has come from an independent source is the statement of Dr. Hafizullah Chaudhry (P.W.1) who was the first to attend the injured, even before the F.I.R. was lodged. It was in the hospital and he says that it was 9-30 p.m. and further stated "there was load-shedding and it ended at 9-30 and the light came when I just commenced examination of Akbar Ali." This statement of the doctor would be more consistent with the defence version about the darkness at the time of occurrence on account of load-shedding than the prosecution case that there was electric light. The blackening and scortching of the injuries would also indicate that assailants had approached quite close. It could not happen when the two fatally injured persons were in the company of so many others and could see the persons with fire-arm approaching them, The blackening and scortching of the injuries on one of the injured persons lends support to the defence version which is supported by the official records that the occurrence took place during the load-shedding period.

17. As regards the identification of the unidentified accused Muhammad Afzaal convict, the trial Court rejected the identification parade conducted by the Magistrate 1st Class (Mehr Muhammad Iqbal P.W.3), observing as thereunder:--,

"The non-compliance of certain formalities cannot be attributed to the dishonesty of the witness. It may be due to lack of legal knowledge. The eye-witnesses while appearing in Court identified Muhammad Afzaal accused as the person who had come to the spot armed with Klashnikov alongwith co-accused Asghar Ali alias Sabah and Zulfiqar and had fired shot with Klashnikov and I take it to be sufficient evidence against Muhammad Afzaal accused coupled with the recovery of Klashnikov P.28 which matched with eleven empties recovered from the spot."

Apart from the formalities found lacking, the substantial portion of the identification was to be with regard to the participation of the identified person is the crime. It had to be so stated by the witness who was supposed to identify. The context in which he was identifying the individual had to be disclosed. This is established law as held in Lal Singh v. The Crown (1924) 5 Indian Law Reports page 396 (Lahore sessions). It was held in that case as hereunder:-----

"The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness 'at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."

The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identify of the culprit.

18. The legal question arising in the case which requires somewhat elaborate discussion is the conduct of Arshad Ali injured who first addressed the trial Court by an application (Exh.PS) received on 16-4-1992 and affirmed its correctness in the Court making a statement declining to be examined in the case as a witness. His importance can be judged from th6 fact that he received a serious injury in the same occurrence anti his father was shot dead in that very occurrence. He was supposed to give a statement about his own injury and that of his father. The trial Court has noted his appearance and conduct in paragraphs 11 and 24 of the judgment and it needs reproduction for its evaluation on the legal plane.

Both the paragraphs (11 and 24) read as hereunder:-

"11. Arshad Ali, the injured witness, who is son of Akbar Ali deceased sent letter PS through post to this Court which was received on 16-4-1992. He had made a prayer in the said letter that he should be dropped from the list of witnesses and that his, statement should not be recorded as he had no concern with any of the parties. and did not want to make statement. Arshad Ali was summoned by this Court. He was unable to walk. He was produced in Court on a cot. He admitted that he sent application Exh.PS to this Court through post. He further stated that he was injured during the occurrence. He also stated that he did not want to make any statement as he had no connection with any of the parties. Bashir Ahmad another eye-witness was not produced in Court. According to prosecution, he was won over.

24. According to prosecution version on, 17-8-1991, at 9-30 p.m., Pervaiz Sultan deceased, Akbar Ali deceased. Arshad Ali injured witness, Ghulam Rasool complainant, Muhammad Ashraf, Muhammad Ali and Bashir Ahmad P.Ws were sitting in the courtyard of the office of Market Committee Samundari, when the present occurrence took place. Arshad Ali P.W. received fireshot injury. His presence was not denied by the defence. Arshad Ali sent application Exh.PS to this Court through post which was received on 16-4-1992. Arshad Ali had requested in this application that he had no concern with either of the two parties and that his name should be struck off from the list of witnesses as he did not want to make statement. He was summoned to appear in Court. Due to bullet injury, he was unable to walk. He was produced in Court on a cot. He took up the same position while appearing in Court. He admitted that he sent application Exh.PS to this Court through post. He stated that he sent the application of his free will without any pressure from any side. Akbar Ali deceased was father of the said witness. The witness stated that he received injury during the occurrence but he did not want to make any statement in Court as he had no connection with any of the parties. He was perfectly justified in making that statement. He did not want to risk his own life. I am not prepared to draw any inference against any of the parties on the ground that Arshad Ali the injured witness did not make statement in Court."

19. Arshad Ali injured did appear as a witness P.W.7. He was administered oath. Then followed a note recorded by the Court. Next his short statement on oath was recorded. It is all as hereunder:---

"Note.--Due to injury Arshad Ali P.W. is unable to walk and he has been produced in Court on a cot.

I sent application Exh.PS to this Court through post.

I sent this application of my own accord, of my free will and without any pressure from any side. Akbar Ali deceased was my father. I was injured during the occurrence. I do not. want to make aany statement in Court. It is not on account of any fear of any party. I do not want to make any statement in Court as I have no connection with any of the parties. When learned A.A.G. put to the witness as to where he had gone on 17-8-1991, at night time, the witness stated that he does not make any statement. I made statement to the police. I know nothing about it. x z x x x Cross examination:

NIL."

From this statement it cannot be inferred that the witness was mentally afraid of his enemies or that this fear kept him back from charging the actual culprits for his father's murder and his own injuries. The enmity alleged had- not that fearsome background. Besides, it is not in our culture to keep quiet over father's murder and about one's own injury.

20. As the trial of the accused was taking place under Qisas and Diyat law or the Injunctions of Islam, one had to look to the law, to the Injunctions of Islam, for determining what is the effect of an aggrieved injured witness not appearing deliberately to make a statement in Court about his own injury without satisfying the Court about his reasons for so abstaining. The Holy Qur'an ordains as hereunder:--

(i) Sura Al-Baqar, Verse 283:

(ii) Sura Annisa. Verse 135:

(iii) Sura Al-Maaida. Verse 8:

(iii) Sura AI-Maaida Verse 8

21. There is another aspect of the case. Arshad Ali being himself a victim,. as heir of his father could waive his right of Qisas in respect of his own injury and that of his father by not coming forward to make a statement against any of the appellant. He would appear, in view of his conduct, to have waived his right for Qisas in respect of death of his father and also in respect of his own injury.

22. Under the Injunctions of Islam, if an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reason for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas provision. Qisas is a personal right and as it now stands, if the person aggrieved therefrom forgives it, and one way of forgiving the wrong doer is not appearing in support of the case against the wrongdoer, there will be no Qisas.

23. Under the Secular law, the position is graver for the prosecution case, In Whaston's Crimiial Evidence 13th Edition b Charles E. Torcia (Volume I) at page 245, on the question of withholding the evidence, the following commentry appears .-

"The withholding of evidence gives rise to an inference or presumption that the evidence withheld would be unfavourable to that party ... ... ...... ... ... ... If the non-existence of a fact is peculiarly within the knowledge of the defendant, it devolves upon him to produce the evidence and, if he fails to do so, the jury may properly infer that such evidence cannot be produced. Similarly, if weaker and less satisfactory evidence is produced by a party who could have furnished stronger and more satisfactory evidence, it will be presumed that the evidence withheld would be adverse to him."

In Khairdi Khan and others v. The Crown (PLD 1953 FC 223 at page 243), the non-production of such a witness was dealt with as hereunder:-

"It is hardly necessary to stress the great importance which attaches to the non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non-production is established ... ... ... .... ... ... ..The presumption provided by section 114, illus. (g), Evidence Act must, therefore, be raised against the prosecution."

John Henry Wigmore in his book `A' Treatise on the Angle-American System of Evidence in Trials at Common Law???, known as Wigmore on Evidence, Third Edition (Volume II), monograph 285 on the subject of `Failure to produce Evidence' comments that "the non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavourable to the party's cause."

24. The upshot of the above discussion is that the reluctance of Arshad Ali to make a statement on oath about his own injuries and that of his father have all pervasive effect on the whole prosecution case which considered with the other defects already pointed out, cannot be taken to be sufficient to make out a case of the prosecution reasonably beyond doubt so as to ensure the safe administration of criminal justice, The recoveries effected allegedly cannot, in the case in hand, play any decisive role where the ocular evidence is disbelieved and the investigation is suspect.

25. In the circumstances, we accept Criminal Appeal No.34/SAC/L of 1992 filed by the four convicts, set aside their conviction and sentence and order their acquittal forthwith, unless they are required is some other case.

In view of the discussion above and the results that have ensured, the State Appeal (Criminal Appeal No.39/SAC/L/1992) is found without merit and is dismissed.

N.H.Q./55/SAC ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.