Versus Kh. Sultan Ahmad , Sadiq Hayat Lodhi
RIAZ AHMAD, J. ‑‑Appellants Inayat son of Ali Akbar, caste Gujjar, resident of Bhooch, Atta Mohy‑ud‑Din son of Fateh Ali, Caste Gujjar, resident of Bhooch, Mushtaq and Nasar, both sons of Muhammad Khan, residents of Bharwal, Muhammad Ashraf son of Rehm Dad, Iqbal son of Ahmed Khan, Muhammad Ashraf son of Bahawal, Caste Gujjar, residents of Bhooch and Pervaiz son of Muhammad Akram, Caste Gujjar, resident of Bhooch were tried by the learned Additional Sessions Judge, Gujrat, on a charge under section 302/148/149, P.P.C. for having caused the murders of Mushtaq and Waris deceased.
Vide judgment dated 30‑6‑1985 Pervaiz, Atta Mohy‑ud‑Din, Inayat, Iqbal and Ashraf were found guilty on the said charge while Ashraf son of Rehm Dad, Mushtaq, and Nasrullah were acquitted. Learned Additional Sessions Judge found the appellants guilty for causing the murder of Mushtaq and Waris deceased. The learned Additional Sessions Judge sentenced only Pervaiz appellant to death for having caused the fatal injury to Mushtaq deceased while the remaining appellants were held vicariously liable. The appellants other than Pervaiz were sentenced to imprisonment for life. All the appellants were also sentenced to pay a fine of Rs.5,000 each or in default to suffer simple imprisonment for a term of one year. It was also directed that the fine if recovered, shall be paid to the heirs of both the deceased as compensation in equal shares.
After their conviction appellants Atta Mohy‑ud‑Din son of Fateh Ali and Inayat son of Ali Akbar died and hence appeal to their extent stands abated.
2. Aggrieved by their conviction and sentence the appellants have preferred this appeal while the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeals as well as the Reference.
3. The unfortunate occurrence resulting into the death of Waris and Mushtaq deceased took place at 9‑10 a.m. on 30‑5‑1981 in village Bhooch situated at a distance of five miles from Police Station Karianwala. Walayat complainant reported the occurrence to Aurangzaib S.I., who was present alongwith the Constables at the Bus Stop, Karianwala and thus, on the statement of Walayat complainant Exh. P. C. /1 was recorded by Aurangzaib Inspector and the said statement was sent to the Police Station for the registration of the case and accordingly on the basis of the said statement the formal F.I.R. Exh.P.C. was drawn at the Police Station at 1‑45 p.m.
4. The prosecution case in brief as unfolded in the F.I.R. is that, on the fateful day both the deceased Mushtaq and Waris after taking bath from the well of the complainant were going back to their houses, While Waris deceased was in the field of Inayat appellant and Mushtaq was in the field of Atta Mohy‑ud‑Din appellant, all the appellants and two absconders namely, Khaliq and Mehdi Khan armed with rifles emerged from the office of the Union Council and indulged into indiscriminate firing making both the deceased as their targets. Pervaiz appellant opened the fire hitting Mushtaq deceased while Khaliq appellant fired a shot hitting Waris deceased. On the receipt of these injuries both the deceased fell down and the remaining appellants indulged into reckless firing. The occurrence attracted complainant Walayat, Rustam Ali, Rehmat Khan. All the appellants with their absconding accomplices ran away from the scene of occurrence. Both the deceased were removed to nearby field under a shade where they succumbed to their injuries.
5. The motive for the commission of offence was to wreak vengeance for the previous murders. Village Bhooch has two parties of Gujjars who are at daggers drawn with each other. According to the prosecution case, one of the party is headed by Ch. Sarwar and both the deceased Waris and Mushtaq. The rival faction is headed by Malik father of Khaliq absconding accused. Malik was killed and Ch. Sarwar was named as one of the assailants. It was thus stated by the complainant that on account of the blood‑feud between the parties Mushtaq and Waris deceased belonging to the party of Sarwar were killed by the appellants and their two absconding party‑men.
6. On 31‑5‑1981 at 12‑30 p. m. Dr. Syed Tallat Iqbal, Medical Officer, A . B . S. Hospital, Gujrat, conducted post‑mortem examination on the dead body of Muhammad Mushtaq and the following injuries were noticed: ‑
"(1‑A) Fire‑arm wound of entry 0.25 c. m. x 0.25 c. m. on anterior side of left frontal region of scalp.
(2‑A) ?? Fire‑arm wound of entry 1 c.m. x 0.8 c.m. about 1 c.m. in front of injury No.1 on interior side of left frontal region of scalp.
(IB) & (2B) Fire‑arm wound of exit 6 c.m. x 4 c.m. on left side of occiput. The bone was broken and the brain matter was coming out. of the hole. Evidence of bleeding from left ear positive.
(3) Bruise 2 c. m. x 1 c. m. ‑ on back of left shoulder joint."
Injuries Nos. 1 and 2 had caused the fracture of the left frontal bone, left temporal bone, left parietal bone and left occipital bone. Left cerebral hemisphere and left side of cerebellum were torn. Injuries No.1 and 2 were caused by fire‑arm of high velocity from a close range and both the injuries were declared to be sufficient in the ordinary course of nature to cause death. The death in the opinion of the doctor had taken place due to shock on account of the excessive brain damage.
7. On the same day the said Doctor conducted the post‑mortem examination on the dead body of Muhammad Waris and the following injuries were noticed:‑
"(1‑A) Fire‑arm of entry 0.5 c. m. x 0.5 c. m. on outer side of middle of left upper arm.
(1‑B) ??? Fire‑arm wound of exit 2 c. m. x 1.5 c. m. on medial side of middle of left upper arm. Humerus was fractured at site of injury.
(2) Fire‑arm wound of entry 2.5 c. m. x 2.5 c. m. on the lateral side of middle of left chest."
The injuries had caused fracture of left 8th, 9th and 10th ribs at the site of entry. Left lower lobe of left lung was torn. Diaphragm was pierced. Stomach was also torn. Abdominal aorta at the upper part was also torn and the metallic body was found in the lower part of abdominal cavity. According to the doctor injuries No.1 and 2 were caused by fire‑arm and injury No.2 was sufficient to cause death in the ordinary course of nature. The death in this case had taken place due to haemorrhage and shock. According to the doctor, injury No.1 had also contributed towards the death of the deceased.
8. Pervaiz appellant was arrested on 21‑5‑1984, i.e. 3 years after the occurrence. Khaliq and Mehdi Khan are still absconders. Inayat appellant was arrested on 4‑7‑1981 a month after the occurrence. Iqbal and Ashraf were arrested on 11‑6‑1982, more that a year after the occurrence. In view of the disapprearance of the appellants and their arrest on the dates noted above no recovery could be effected. However, Inayat appellant while in police custody led to the recovery of a rifle on 12‑7‑1981 which was taken into possession vide memo. Exh. P.L. attested by Noor Muhammad Khan A.S.I. and Riaz Hussain Shah Head Constable. No recovery of crime empty took place on the spot and, therefore, recovery of the rifle at the instance of Inayat appellant has no significance.
9. The appellants were examined under section 342, Cr.P.C. as well as under section 340, Cr.P.C. All the appellants denied the charge against them and stated that they had been falsely implicated on account of the blood‑feud and party faction.
10. Mushtaq Ahmad and Nasar acquitted accused however, pleaded alibi and in support thereof they produced two doctors in their defence but since both of them were acquitted by the trial Court, therefore, we do not feel it necessary to go into the details of the evidence as to alibi.
11. With the assistance of the learned counsel we have carefully perused the evidence on the record and we have also heard the learned counsel for the appellants and State.
12. The mainstay of the defence case and which has been vehemently argued before us is that since there is blood‑feud between the parties and both the appellants and the complainant parties are rival factions in the village, therefore, caution has to be exercised to evaluate their evidence. It was further submitted that this is a case where the enmity also stands established and, therefore, corroboration of the ocular testimony from independent source has to be sought to sustain the conviction. It was further argued that since no such corroboration is available on the record, therefore, the tainted evidence led by the prosecution cannot be pressed into service to hold the appellants guilty on the charge. After anxious consideration we are of the view that there is no cavil with the proposition that where the parties are inimically disposed of towards each other with the background of previous murders, as is the present case, the corroboration must be sought and for the administration of criminal justice it will be unsafe to rely upon tainted evidence without corroboration to sustain the conviction. But the crucial question arises is that is it always necessary to seek corroboration? The answer to this question lies on the two illuminating judgments delivered by the Supreme Court of Pakistan reported as Niaz v. The State P L D 1960 S C 387 and Nazir v . The State P L D 1962 S C 269. In the case of Niaz, the Supreme Court laid the following observations:‑
"Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it."
In the case of Nazir the following observations are apt:‑
"There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree or probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration.
For corroboration it, is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstance relied upon must have a bearing on this question.
In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing.
Circumstances corroborating the eye‑witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject‑matter of the proceedings; (2) that the persons named as culprits were such as would be expected to join in the attack."
13. Judging the facts of this case in the light of the dictum laid down by the Supreme Court of Pakistan we hold that the ocular testimony in this case hardly requires corroboration, and if at all corroboration is to be sought the abscondence and disappearance of the appellants is sufficient to lend strength to the ocular testimony. We are conscious of the fact that the absconsion is a weak type of corroborative evidence, but in the facts and circumstances of this case the abscondence cannot be lightly brushed aside. Pervaiz appellant could only be arrested on 21‑5‑1984 i.e. three years after the occurrence, while Iqbal and Ashraf appellants were arrested on 11‑6‑1982 i.e. more than one year after the occurrence. It is pertinent to mention that all three appellants namely, Pervaiz, Iqbal and Ashraf, whose case is being dealt with by us were declared proclaimed offenders. Their abscondence was specifically put to them in their examination under section 342, Cr.P.C. and all the appellants denied the abscondence. In their examination under section 342, Cr.P.C. the appellants were at liberty to take any plea, but the question remains whether the Court can close its eyes to the facts established on the record. Our answer to this question is in negative and, therefore, we hold that the abscondence lends enough support to the ocular testimony.
14. Adverting to the motive, the prosecution case was not at all denied in cross‑examination and the eye‑witness account is consistent with regard to the previous murders and, therefore, we hold that the prosecution has also established motive which can again be considered as another corroborative circumstance to confirm the veracity of the ocular testimony.
15. It was strenuously argued that the ocular testimony is in conflict with the medical evidence, inasmuch as, according to the medical evidence the fire‑arm injuries were received by the deceased from a close range, but according to the site plan and the spot of firing i.e. the Union Council office, the firing from close range stands belied. It was thus, argued that the intrinsic worth of the evidence of eye‑witnesses cannot inspire confidence. We have considered and judged this aspect of the case in the light of the ocular testimony. According to the prosecution story, both the deceased were returning to their house and were in fields when the appellants alongwith their associates 10 in number armed with lethal weapons suddenly emerged from the office of the Union Council to fire at the two deceased, their targets. If we reconstruct the scene, we are not prepared to believe that all the ten persons would remain standing at a particular point, but in our view they would have also run to fire at their targets. The evidence discloses that no sooner the appellants and the other co‑accused emerged from the office of the Union Council they started indiscriminate firing. We are of the considered view that all the appellants would have also rushed to the fields near their targets and, therefore, we are convinced that the shots were received by the two deceased from a close range. It is further important to note that both the deceased after receipt of injuries fell down to the opposite direction of each other. It is thus obvious, that with a view to save their skins the deceased ran to different directions and such running is indicative of the element of surprise by which the deceased were taken by their assailants. Furthermore they would not have run to different directions if the assailants would have been stationary at one place. The chase of the assailants would make the targets to run in different directions in fear and agony and, therefore, we are of the view that the medical evidence does not belie the ocular testimony.
16. It was also argued that the time of death as the prosecution wants us to believe is not correct and is against the medical evidence on the record. It was argued that purtrefaction of the dead bodies had set in and therefore, time of death was earlier than the time disclosed by the prosecution. We have considered this aspect of the case but we find no substance in it. It may be stated here that it was a hot month of May when the occurrence took place. The dead bodies were removed to a shade. This circumstance by itself shows the intensity of heat and that is why the removal of dead bodies was necessitated. The post‑mortem on the dead bodies was conducted on the next day i.e. 31‑5‑1981 at 12‑30 p.m. There is nothing on the record to show that A . B . S . Hospital had arrangements to keep the dead bodies in cold storage and, therefore, it is not unusual that early signs of putrefaction had appeared. In this view of the matter we attach no importance to this aspect and the contention is thus repelled. It was a daylight occurrence and the question of mistaken identity does not at all arise and, therefore, the time of the occurrence on the basis of this putrefaction cannot be taken back to the time of alleged occurrence.
17. It was further argued that the eye‑witnesses were also closely related and being interested had motive to falsely implicate the appellants. The contention again has no force. Mere relationship is no ground to discard the testimony of any eye‑witness. In view of the corroborative evidence as to the motive and absondence the plea that such testimony should be rejected is also devoid of force.
18. It was next contended that the stomach of the deceased contained undigested meals and, therefore, the meals could not have been taken by the deceased before taking bath. The contention again is without any substance because it all depends upon the habits of the individuals and there is nothing odd to take bath after taking meals.
19. Our attention was drawn to the fact that there were other wells and bathing places in the village and, therefore, both the 'deceased could not have gone out of the village abadi to take bath. We are not convinced of the argument because nothing has been brought on the record by the defence to show that the deceased always used to take bath in the village mosque or other bathing places.
20. The upshot of the above discussion is that we are convinced that the appellant had participated in the commission of crime and Pervaiz appellant was rightly convicted and sentenced to death for having caused the first fatal shot to Mushtaq deceased whereupon the deceased fell down. In this view of the matter the conviction and sentence awarded to the appellant Pervaiz is not open to exception. Hence the death sentence awarded to Pervaiz appellant is hereby confirmed. As far as the other two appellants namely, Iqbal and Ashraf are concerned we hold that they were rightly held liable vicariously and therefore, their conviction and sentence is also just and proper Consequently this appeal fails and is hereby dismissed.
S.G.D. /P‑24/L ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.