MUHAMMAD IKRAM Versus THE STATE
IJAZ NISAR, J.‑‑ Muhammad Ikram Tarar (30), Muhammad Ikram Cheema (40), Muhammad Ishaq Tarar (24) and Riaz Ahmad Tarar (35) appellants were tried alongwith Muhammad Sadiq Cheema (50), Nazar Muhammad Tarar (55). Nasrullah Awan (22), Qamar‑uz‑Zaman Cheema (22). Nazeer Ahmad Tarar (50) and Khalil Ahmad Tarar (25) for the murder of Muhammad Aslam deceased and for murderously assaulting Maqsood Ahmad and Asghar Ali P.Ws. The learned Sessions Judge, Faisalabad by his order, dated 18‑4‑1981 convicted the appellants namely. Muhammad Ikram Tarar, Muhammad Ikram Cheema, Muhammad Ishaq Tarar and Riaz Ahmad Tarar under sections 302, 307/34, P.P.C. and sentenced them to death and a fine of Rs.2,000 each or in default to undergo three months' R.I. They were directed to pay 89.5,000 each as compensation to the heirs of Muhammad Aslam deceased or in default to suffer further R.I. for six months. They were further sentenced to R.I. for seven years and a fine of Rs.500 each or in default to undergo one months' R.I. under section 307/34, P.P.C. for murderously assaulting Asghar Ali P.W. They were also sentenced to five years' R.I. and a fine of Rs.5,000 each or in default to undergo one month's R.I. for making a murderous assault on Maqsood Ahmad P.W. under section 307/34, P.P.C.
The sentences of imprisonment under section 307/34, P.P.C. were ordered to run concurrently and were to take effect only if the death sentence passed on the appellants was not confirmed. The other accused were, however, acquitted.
2. We have before us the appeal filed by the convicted accused, the revision filed by Maqsood Ahmed against the acquittal of Muhammad Sadiq, Nazar Muhammad, Nasrullah, Qamar‑uz‑Zaman, Nazeer Ahmad and Khalil Ahmad and the reference made by the learned Sessions Judge under section 374, Cr.P.C. for confirmation of the death sentence of the appellants. All the three matters shall be disposed of by this order.
3. It may be mentioned at the outset that Muhammad. Nawaz, a brother of Muhammad Ikram Cheema was also named as an accused person in the F.I.R. but was killed before the trial.
4. The appellants are related to one another. Muhammad Ikram Cheema, Muhammad Sadiq and Muhammad Nawaz (since dead) are brothers. Qamar‑uz‑Zaman accused (since acquitted) is son of Muhammad Ikram Cheema. Muhammad Ishaq and Riaz Ahmad appellants are brothers. They are cousins of Muhammad Ikram Tarar appellant. Nazeer Ahmad accused (since acquitted) is uncle of Muhammad Ishaq, Riaz Ahmad and Muhammad Ikram Tarar appellants. Khalil Ahmad accused (since acquitted) is son of Nazar Muhammad accused (since acquitted). The latter is also maternal‑uncle of Muhammad Ishaq and Riaz Ahmad appellants. A niece of Nazar Muhammad accused (since acquitted) was married to Muhammad Nawaz accused (since murdered). An uncle's daughter of Muhammad Ikram Cheema is married to Muhammad Nawaz Tarar, brother of Muhammad Ishaq and Riaz Ahmed appellants. Nasrullah accused who is Awan by caste is in no way related to the accused.
5. The prosecution case is that in July, 1969 Muhammad Nawaz brother of Muhammad Ishaq and Riaz Ahmad appellants was murdered for which Muhammad Aslam deceased and Ghulam Haider, father of Maqsood Ahmad P.W. were tried. The former was sentenced to death by the Sessions Court while the latter was acquitted. On appeal the High Court reduced the sentence of Muhammad Aslam to imprisonment for life. Muhammad Aslam deceased was released from prison in 1976. On account of fear of the complainant party he started living in Chak No. 184, P.S. Sadiqabad. He came to Chak No. 304/JB, District Faisalabad a week before the present occurrence. He used to keep himself armed with a carbine for protection.
On the day of occurrence, i.e. on 18‑6‑1978 at sunrise time, Muhammad Aslam deceased alongwith Maqsood Ahmad P.W. 13, Asghar Ali P.W. 14 was going to his Dera. When they reached near village graveyard the accused persons, including Muhammad Nawaz (since dead) emerged from the graveyard where they were hiding themselves behind the wall and bushes. Muhammad Ikram Cheema, Muhammad Sadiq, Muhammad 1kram Tarar, Nazar Muhammad, Riaz Ahmed, Muhammad Ishaq and Nasrullah were armed with guns while Muhammad Nawaz (since dead), Khalil Ahmad and Nazeer Ahmad were armed with Dangs.
Muhammad Ikram Cheema raised a Lalkara that Muhammad Aslam deceased should not be spared and simultaneously fired at him as a result of which he was injured. The deceased fired in retaliation from his carbine at Muhammad Ikram Cheema, but instead of hitting him the shot hit Riaz Ahmad appellant. Thereafter Muhammad Ikram Cheema, Riaz Ahmad, Muhammad Ishaq and Muhammad Ikram Tarar fired at the deceased. Muhammad Sadiq (since acquitted) fired at Maqsood Ahmad P.W. hitting him on the right side of head. Nazar Muhammad and Nasrullah fired with their guns hitting Asghar Ali P.W. Qamar‑uz‑Zaman, Muhammad Nawaz, Khalil Ahmad and Nazeer Ahmad accused kept on raising Lalkaras while encircling the deceased and the injured P.Ws. On hearing the alarm Hashim Ali and Inayat (not examined) and Nazeer Ahmad P.W. 15 reached the spot and witnessed the occurrence. On their entreaties, the accused left the spot. Muhammad Aslam died instantaneously.
6. Leaving the dead body at the spot Maqsood Ahmad P.W. 13 left for the police station but on way came across the police at Dhaman Bungalow. He reported the incident to S.I. Abdul Karim P.W. 17 who recorded his statement Exh. P.K. at 6‑30 a.m The .S.I. prepared his injury statement and sent him to the hospital for medical examination. He then proceeded to the spot. He found the dead body of Muhammad Aslam deceased lying in Kila No. 15 of Square No. 23. He prepared the injury statement Exh. P.G. and the inquest report Exh. P.D.D./2 of Muhammad Aslam deceased. He picked up a carbine P. 16 from near the dead body containing an empty cartridge P.18. He also picked up a live cartridge P. 17 from there. He also picked up 21 empties P. 19/1‑21 from the spot and live bullet P.
20. He visited Civil Hospital Gojra. On the same day he prepared the injury statement of Asghar Ali P.W. Riaz Ahmad appellant was also admitted there. He recorded his statement on the basis of which a case under section 307, P.P.C. was registered against the complainant party.
He arrested Nazar Muhammad and Nazeer Ahmad accused on 23‑6‑1978, Muhammad Ikram Tarar and Qamar‑uz‑Zaman accused on 2‑7‑1978 and Riaz Ahmad appellant on 5‑7‑1978. Ata Muhammad, Inspector, had also investigated the case but he died before he could be examined as a witness. Sub‑Inspector Abdul Karim P.W.17 identified his writing and signatures on various documents.
Muhammad Ashiq Sukhera, D.S.P., P.W.18 also partly investigated the case. On 13‑7‑1978 he arrested Muhammad Ishaq and Nasrullah who had appeared before him at the spot. He also arrested Muhammad Ikram Cheema who had appeared before him in his office at Faisalabad on 21‑7‑1978.
Riaz Ahmed appellant while in custody got recovered carbine P. 15 from his house. Nazeer Ahmad, Muhammad Nawaz and Khalil Ahmad accused got recovered sticks. Muhammad Sadiq accused (since acquitted) led to the recovery of rifle P. 19 from his house. Muhammad Ikram Tarar appellant and Qamar‑uz‑Zaman accused (since acquitted) led to the recoveries of gun P. 10 and Dang P.11, respectively, from their houses. Nazeer Ahmad accused produced gun P.
12. Altaf, a brother of Nazeer produced gun P.
13. Ghulam Qadir Lambardar produced gun P.
14. Riaz Ahmad appellant led to the recovery of carbine P. 15 from his house. None of the Dangs was blood‑stained. According to the Fire‑arms Expert report Exh. P.G.G. one of the empties had been fired from the carbine of Muhammad Aslam deceased and two of the empties had been fired from the guns allegedly used by Nasrullah accused (since acquitted).
7. [Medical Evidence]
8. The accused denied the prosecution allegations and attributed the case to enmity. Riaz Ahmad appellant stated that they had long standing enmity with the complainant party who in collusion with the local police had falsely involved almost all the male members of their family: He gave the following version of the incident:‑
"On the morning of the day of occurrence. I was present at my Dera in Kills No. 19 of Square No. 24 and milking my buffalo. My father Sardar Muhammad and my uncle Nazeer Ahmad were also present. Suddenly, Muhammad Aslam deceased, Asghar Ali, Maqsood Ahmad P.Ws. armed with fire‑arms attacked me. I stood up. I had a loaded carbine with me. When the deceased Muhammad Aslam and the two P.Ws. were about to fire at me, but before they could succeed in doing so. I fired at them in self‑defence. I then took shelter in a nearby sugarcane crop. I kept on firing from there and the deceased and the two P.Ws. kept on firing from where they stood. The deceased died of the shots fired by me in self‑defence. The two P.Ws. might also have a been injured. The deceased fell down and leaving him there, the P.Ws. ran away. My father took me to the hospital and there I was medically examined. S.I. Abdul Karim visited the hospital and recorded at my dictation and was thumb‑marked by me. None of the remaining accused persons was present at the time of the incident. I too, was injured at the hands of the deceased and the two P.Ws. The entire incident occurred in Kills No. 19 from where the police also collected blood‑stained earth and nowhere else."
Muhammad Ikram Cheema appellant stated that he had been falsely implicated due to previous enmity with the complainant party and that he had gone to District Vehari one day before the occurrence to participate in a marriage and at the time of the alleged occurrence he was in Chak No. 4611EB, Tehsil Burewala. In support of his plea he examined two witnesses in defence namely Akbar Khan and Khizar Hayat. Akbar Khan D.W. is Secretary. Union Council No. 131, Tehsil Burewala, District Vehari. He produced the register of marriages of Chak No. 461/EB. According to him at Serial No. 29 of the said register was entered the marriage of Muhammad Ishfaq son of Muhammad Mansha of Chak No. 439/EB, Tehsil Burewala, District Vehari with Mst. Bashiran Bibi. Khizar Hayat D.W. 2 stated that he had also participated in the marriage ceremony of Muhammad Ishfaq, aforementioned. According to him Muhammad Ikram Cheema was also present there and they both spent the night together in the house of Muhammad Ishfaq. They accompanied the Barat on 18‑6‑1978 and had travelled by the same Bus. He added that he and Muhammad Ikram Cheema had signed the part Nikah Exh. D.U. as witnesses. The signatures of Muhammad Ikram Cheema appellant were Exh. DU/1.
9. The prosecution examined 18 P.Ws. in support of its case. Maqsood Ahmed P.W. 13, Asghar Ali P.W.14 anal Nazeer Ahmad P.W. 15 furnished the account. Liaquat Ali P.W.11 deposed about the recoveries of crime empties and carbine P. 16 from the spot. Noor Muhammad P.W. 10 proved the recoveries of Sotas and fire‑arms from the spot Sardar Muhammad P.W. 8 and Shahbaz Khan P.W. 9 stated that in their presence Ghulam Qadir Lambardar had delivered his gun to Muhammad Ikram Cheema, Altaf, gave his gun to Muhammad Ishaq and Nazeer Ahmad gave his gun to Nasrullah accused. On their query Muhammad Ikram Cheema and his companions told them that they needed guns for hunting. Two days later the present occurrence took place. Shahbaz Khan P.W. stated that in his presence Muhammad Ikram Cheema had delivered a double barrel gun to Ghulam Qadir Lambardar saying that he had used it for the purpose for which he had taken it. On that very day he learnt about the murder of Muhammad Aslam deceased.
10. Relying upon the ocular evidence supported by the medical evidence and the motive, the learned trial Court convicted and sentenced the appellants as described above.
11. Assailing the judgment learned counsel for the appellants contends that the prosecution case suffers from doubtful circumstances and the conviction has been based on the uncorroborated testimony of interested and inimical witnesses, further that the ocular testimony is in conflict with the medical, evidence and is contradictory on material particulars. That the counter‑complaint filed against the complainant party which was sent up by the learned Magistrate for simultaneous trial with the murder case was illegally ignored although the learned trial Judge was under a legal obligation to try both the cases
12. On the other hand, the learned counsel for the complainant has supported the conviction and stated that the reasons given for the acquittal of the six accused are flimsy and not supported by the record and that their acquittal has resulted in grave miscarriage of justice.
13. There is no denying the fact that all the three eye‑witnesses are very closely related to the deceased. Maqsood Ahmad P.W. 13 is a real brother of Muhammad Aslam deceased. Asghar Ali P.W. 14 is a cousin of the deceased while Nazeer Ahmad P.W. 15 is a nephew of the deceased. Same is the case of other P.Ws. Liaquat Ali P.W. 11 who deposed about the recoveries from the spot is son of Nazeer Ahmad P.W. 15, Noor Muhammad P.W. 10 who proved recoveries from the accused is his cousin.
Nazeer Ahmad P.W. 15 admitted that they had old enmity with the appellants on account of murder and murderous assaults in various transactions. According to him his son Liaquat Ali P.W. is charged for the murder of Muhammad Nawaz accused (since murdered).
The learned trial Judge, in para. 61 page 122 of the paper book, observed that by reasons of their relationship with the deceased and long‑standing enmity between them and the two groups of the accused party, Maqsood Ahmad, Asghar Ali and Nazeer Ahmad P.Ws. were interested witnesses. He further observed that the possibility of the number of the culprits having keen exaggerated could not, therefore, be ruled out.
14. The injured eye‑witnesses namely, Maqsood Ahmad and Asghar Ali P.Ws. were disbelieved in respect of their own assailants. The learned trial Court observed that it was highly improbable that they were in a position to see as to who was firing at them, further that the injuries suffered by them could well have been caused by the shots fired by others. The trial Court further observed that the prosecution had failed to show any connection between the appellants and Nasrullah accused who was Awan by caste. The participation of the accused holding Dangs was also not considered proved beyond all reasonable doubt and in consequence they were acquitted, Nazar Muhammad, Nasrullah and Muhammad Sadiq who were alleged to have fired gunshots at Maqsood and Asghar Ali were also acquitted by the trial Court because the version of the injured eye‑witnesses that they had seen them firing shot at them by running and having their backs towards them was not considered credible by the trial Court. The recoveries from the appellants and the accused were also not believed by the trial Court.
The conviction has been based mainly on the evidence of the three eye‑witnesses. Two other eye‑witnesses namely, Hashim and Inayat were given up by the prosecution. The question that falls for consideration is as to whether it was safe to place implicit reliance on the testimony of Maqsood Ahmad, Asghar Ali and Nazeer Ahmad P.Ws. without any corroboration. The corroboration was necessary because all of them are dosely related to one another and inimically disposed towards the appellants. They have long‑standing enmity with the appellants and had been disbelieved qua six acquitted accused. The injured eye witnesses were not believed even against those accused who had allegedly caused fire‑arms injuries to them. There is no confirmatory circumstance to corroborate them. The recoveries of weapons of offence from the appellants were not believed by the trial Court. Furthermore, there is a material inconsistency in the statements of the eye‑witnesses with regard to the place of occurrence. Accordingly to them they alongwith the deceased were going to their Dera by the path passing near the graveyard when suddenly the accused who were hiding themselves in the graveyard behind its wall came out and attacked them. But they stand belied by Muhammad Yaqoob, Girdawar P.W. 4 who had prepared the site plan. According to him he did not see any wall around Killas Nos. 24 and 25 nor did he see any bushes in the graveyard and had he seen any wall he must have shown it in the site plan. According to the site plan the dead body of Muhammad Aslam deceased was found lying in Killa No. 15 of Square No. 23. The said. Killa according to Girdawar was in the cultivating possession of Ghulam Rasul Lambardar, father of Muhammad Ikram Cheema appellant. The prosecution has failed to explain as to how the dead body of Muhammad Aslam deceased was recovered from that place. The path by which they were going to their Dera was towards the south of the graveyard while Killa 15 was towards north‑east of the graveyard.
15. Riaz Ahmad appellant had set up the counter‑defence plea at the very initial stage. While admitted in the hospital he got his statement recorded on the day of occurrence on the basis of which case F.I.R. No. 171 under section 307, P.P.C. was registered against the injured eye‑witnesses and the deceased. He had fire‑arm injuries on his person. Muhammad Sukhera, D.S.P., P.W. 18 who had investigated the said case had directed the S.H.O. to challan the accused persons in both the cases but strangely the said case was not tried. Muhammad Ikram Cheema to whom the first shot to the deceased was attributed had pleaded alibi. According to him he had gone to District Vehari in connection with a marriage and was present in Chak No. 461/EB on the day of occurrence. He brought this matter to the notice of Muhammad Ashiq Sukhera, D. S. P. P.W. 18 but the D.S.P. did not think it necessary to make enquiries to find out the genuineness of his plea. He examined Akbar Khan D.W. 1 and Khizar Hayat D.W. 2 in support of his plea. The register of marriages was also produced before trial Court. At serial No. 29 was entered the marriage of Muhammad Ashfaq with Mst. Bashiran Bibi. Part Nikah Exh. D.U. bears the signatures of Muhammad Ikram Cheema as a witness, to the said Nikah. The trial Court has not given any cogent reasons for discarding the defence evidence.
16. Since the eye‑witnesses were interested and the motive was present to include as many persons as accused as possible, exceptionally strong corroboration which was almost by itself sufficient to establish guilt was necessary. It was all the more necessary when the testimony of the eye‑witnesses was considered doubtful in respect of six out of ten accused. In Muhammad Sher and others v. The Crown P L D 1954 F C 84 the Federal Court observed as follows:‑-
"We are further of the opinion that where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of conviction of the remaining accused in the case for that offence in the absence of any confirmatory circumstance."
The same principle was enunciated in Muhammad Ashraf and others v. The Crown P L D 1956 F C 86, Muhammad Akhtar v. The State PLD 1957 S C (Pak.) 297 and Rehmat and others v. The State PLD 1959 SC (Pak.) 109.
Having carefully considered the correct legal position in the light of the aforesaid authorities, we are of the view that the trial Court should have insisted on the availability of independent corroborative evidence before recording conviction of the appellants. The motive alone could not have taken the place of corroborative evidence.
17. The upshot of the discussion is that the prosecution has failed to bring home guilt to the appellants beyond all reasonable doubt. Consequently, we accept their appeal, set aside their convictions and sentences and acquit them by giving them the benefit of doubt. They shall be set at liberty forthwith if not required in any other case.
18. The death sentences of Muhammad Ikram Tarar, Muhammad Ikram Cheema, Muhammad Ishaq Tarar and Riaz Ahmad Tarar are not confirmed.
19. In the light of the above discussion, the revision filed against acquittal of the accused automatically fails and is dismissed accordingly.
S.A. Appeal accepted.