MUHAMMAD SHARIF And Another vs The STATE

MUNAWAR AHMED MIRZA, J.---Appellants with leave of the Court have assailed judgment of Lahore High Court dated 11-1-1994; whereby death sentence awarded to them by trial Court was converted into imprisonment for life under section 302/34, P.P.C.; besides R.I., for ten years each under section 307/34, P.P.C. And fine.

2. The incident had taken place on 7-9-1988 at about 6-30 p.m. Near Jora Canal Bridge at Upper Jhelum. F.I.R., No.351 was lodged by injured Nisar Ahmed with Kharian Police Station on the same day at 8-30 p.m. Averments of F.I.R. Disclose that a day prior to incident complainant Nisar Ahmed alongwith deceased Mst. Fazal Begum (his, mother), deceased Mst. Shamim Akhtar (his brother's wife). Muhammad Latif, Muhammad Bashir, Muhammad Naseeb and Rehman Khan went to Lahore for appearing in a case pending before Lahore High Court. Deceased Mst. Shamim Akhtar gave statement favouring Riaz Ahmed with whom she had been married. On the fateful day while returning home, they were intercepted by accused party near Joura Canal Bridge about 10 miles away from Kharian Police Station. According to prosecution at the relevant the appellants Muhammad Sharif and Muhammad Hussain were armed with rifles whereas remaining four co- accused since acquitted namely Ali Muhammad, Muhammad Aslam, Shamshad alias Ganga and Naib -Ali had dagger, iron bar and Sota. The accused party blocked bridge by parking their Suzuki in the middle of road when appellants indiscriminately fired on the Wagon No. 1775-GAA wherein complainant party was travelling. Mst. Shamim Akhtar received multiple fire-arm injuries.

Muhammad Aslam also gave dagger blows to her. Then co-accused Muhammad Aslam and Naib Ali inflicted injuries on the person of Mst. Fazal Begum with dagger. Both these ladies succumbed to injuries at the site.

3. Complainant Nisar Ahmed, P.W.14 .Ghulam Haider, P.W.16 Muhammad Bashir and driver Iftikhar Ahmed son of Rehmat Ali also received injuries at the hands of accused persons.

4. Motive mentioned in the F.I.R., suggests that Mst. Shamim Akhtar was abducted by Riaz Ahmed brother of complainant. Proceedings instituted by accused party were fixed on 7th September, 1988 before Lahore High Court for recording statement of Mst. Shamim Akhtar, who supported Riaz Ahmed. The appellants and co-accused felt provoked and launched murderous attack on the complainant party causing death of Mst. Shamim Akhtar and Mst. Fazal Begum, besides injuries to the witnesses referred to above.

5. It appears that during investigation sufficient evidence was not collected against co-accused Ali Muhammad and Naib Ali, whereupon P.W. 17 Muhammad Safdar, Inspector of Police recommended for their discharge. However, record reveals that eventually all the six accused including appellants faced trial under section 302/307/34, P.P.C., before Additional Sessions Judge, Gujrat.

6. The prosecution examined seventeen (17) witnesses including three eye--witnesses namely, P.W.11 complainant Nisar Ahmed, P.W.14 Ghulam Haider and P.W. 16 Muhammad Bashir. Appellants and co-accused gave their respective statement under section 342, Cr.P.C. Denying the accusation and asserted to have been falsely implicated due to enmity. Co-accused Ali Muhammad, however, appeared on oath within the purview of section 340(2), Cr.P.C., and tendered copies of nine F.I.Rs.

Concerning different incidents showing series of disputes which existed between the parties during year 1985 to 1989. Appellants and other co-accused (except Ali Muhammad) neither gave statement on oath nor led any defence.

7. The trial Court on appraisement of evidence found the appellants guilty for offence under section 302/307/34, P.P.C. The learned Additional Sessions Judge, Gujrat, vide judgment dated 30-6-1990 acquitted co-accused namely, (i) Muhammad Aslam, (ii) Shamshad alias Gunga, (i.e) Ali Muhammad and (iv) Naib Ali; whereas appellants were convicted and sentenced as under:--- "Accused Muhammad Hussain and Muhammad Sharif are convicted under section 302/34, P.P.C.

And sentenced to death punishment each and fine of Rs.20,000 each. In default to pay the amount of fine they shall further undergo R.I. For to years each. Muhammad Hussain and Muhammad Sharif are further convicted under section 307/34, P.P.C., for attempting to commit the murder of Nisar Ahmed and sentenced to 10 years' R.I., .Each and fine of Rs.10,000 each. In default to pay the amount of fine they shall further undergo one year R.I., each. If the amount of fine awarded under section 302/34, P.P.C., is recovered half of it shall be paid to the husband of Mst. Shamim Akhtar deceased. The amount of fine under section 307/34, P.P.C., if recovered, half of it shall be paid to Nisar Ahmad injured."

8. The murder reference and Criminal Appeal No.406 of 1990 filed by the appellants came up for hearing before the Lahore High Court, which was ultimately dismissed vide judgment dated 11-1- 1994. However, death penalty of appellants was converted to imprisonment for life. Rest of the sentences awarding fine and imprisonment were kept intact.

9. Leave to appeal against impugned judgments was granted in the following terms:-- "The case against the petitioners finds support from the statement of eye-witnesses who were injured during the course of occurrence. However, there is one aspect of the occurrence which seems to have escaped the notice of the High Court while upholding the petitioners' convictions.

The prosecution placed as many as six persons on trial, ascribing specific role to each of them. The trial Court rejected the ocular testimony with regard to four and acquitted them. In the absence of any corroboratory evidence the case of the petitioners could not be distinguished from that against the co-accused. It may be mentioned that the recoveries allegedly made at the instance of the petitioner do not show their participation in the occurrence. In the circumstances, a question arises whether the High Court was right in upholding the convictions of the petitioners on the same evidence which had been disbelieved in respect of majority of the person put on trial. I would, therefore, recommend that the petitioners may be granted leave to appeal against their convictions and sentences."

10. Mr. Muhammad Munir Peracha, learned counsel for appellants emphatically canvassed, that trial Court and Lahore High Court while acquitting four co-accused persons have factually disbelieved ocular version, therefore, without independent corroboration same evidence cannot be legitimately relied upon to hold appellants guilty for the offence. Whereas Mr. Karam Elahi Bhatti.

Learned counsel appearing for State, opposing the appeal, contended that medical evidence. Fully supports statements of -eye-witnesses, therefore, conviction recorded by the to Courts below is well justified and unchallengeable.

11. Scrutiny of entire evidence reveals that besides ocular version of three witnesses prosecution has attempted to prove recovery of crime weapons from appellants. On this account even otherwise alleged recovery could not be connected with the commission of offence. Keeping in view apparent insufficiency of material and dubious evidence we feel that factum of recovery has not been duly established as rightly held by Courts below. Besides, crime weapons were undisputedly not sent to ballistic expert as no empties were found on the spot.

12. Primary question raised by learned counsel revolves around testimony of eye-witnesses and its effect over medical evidence. It may be seen that medical evidence is normally used for confirmation of ocular testimony as regards injuries caused to deceased or any prosecution witness. Such 'evidence certainly cannot constitute corroboration qua the accused person for proving his involvement. Therefore, the contention raised by learned counsel for State about ocular testimony being corroborative evidence is without substance.

13. Next adverting to real controversy regarding evidence against acquitted four accused and appellant being manifestly identical and not distinguishable from each other, the rule of consistency requires that appellants should have similar treatment by allowing them same benefit.

In this matter apart from eye account motive is apparently common to all the accused persons and case of none is distinguishable, therefore, conviction of appellants cannot be sustained.

However, at this stage we may clarify that, to avoid injustice possible misconstruction concerning principle of consistency, if by any means impugned judgments reflect palpable misappreciation of evidence, total disregard of established norms, material irregularity, glaring impropriety, gross legal defect or arbitrariness, it would be obligatory for the superior forum to find independent corroboration by applying judicious mind for overlooking or departing from this Rule.

14. For these reasons and subject to above observation, by giving benefit of doubt, we are inclined to accept the appeal, set aside impugned conviction and sentence and direct acquittal of appellants.

15. This case was decided by our short order of even date and here are reasons for the same.