P L D 1976 Supreme Court 44 (PLP)

The prosecution case rested on the ocular evidence of Ali Ahmad (P. W. 15), Abdul Aziz (P. W. 16), Mubarik Ali (P. W. 17) and Ali Akbar (P. W. 18). Muhammad Siddique Lumberdar (P. W. 13) was also examined to testify to the recoveries of incriminating articles and the oral dying declaration alleged to have been made by the deceased at Jani Wala Railway Station. Ghulam Mustafa P. W. 7, the Head Master, Government Middle School was examined to prove that he had lent the measuring tape Exh. P. 1 to the deceased shortly prior to the incident. Of the four eye‑witnesses, Ali Ahmad P. W. 15, the first informant, while appearing at the trial, resiled from his certain portions of F. I. R. made by him and also made certain obliging admissions to help the defence. Therefore, he was declared hostile, and his statement before the enquiry Magistrate, which incidentally supported the prosecution case, was brought on the record of the trial Court under section 288, Cr. P. C. The evidence relating to the recovery of the blood‑stained hatchet Exh. P. 5 and blood stained toka Exh. P. 6 was however, rejected by the learned trial Judge so also he did not accept the evidence of Muhammad Siddique Lumberdar P. W. on the point of dying declaration. Nevertheless, on the basis of the ocular evidence and a number of other circumstances appearing on the record, he recorded his conclusion "I conclude that all the seven accused were present and were involved in the main occurrence in the ihata of Hijrayat Ali accused. The leg was chopped off by the strike or strikes of Hijrayat Ali and one Ghafar accused." Having said that, the learned trial Judge "as a measure of extreme cau tion" gave benefit of doubt to the four acquitted accused because of certain discrepancies in the statements of some of the eye‑witnesses recorded under section 164, Cr. P. C. by a Second Class Magistrate and their statements at the trial. He however, did not entertain the slightest doubt as to the participation of the three respondents in the commission of offence and the part assigned to each of them by the eye‑witnesses. Accordingly, he sentenced the first two respondents to death each and the third respondent to life imprisonment because he appeared to have acted under the influence of his father the first respondent. On appeal by the respondents, the learned Judges in the High Court prefaced their examination of the case with the following observation "In view of the fact that there are as many as four eye‑witnesses in this case, it is desirable that we scrutinize the ocular testimony before examining the circumstantial evidence." Nevertheless, they proceeded to dispose of the appeal on the scrutiny of the ocular evidence only and entirely excluded from their consideration the circum stantial evidence in the case. Thus by considering the ocular evidence in isolation, the learned Judges opined that of the four eye‑witnesses produced in the case, three namely Ali Ahmad, Mubarik Ali and Ali Akbar were closely related to the deceased and therefore, were not reliable. About Abdul Aziz P. W. it was observed that though "apparently unrelated" yet his evidence was contradicted materially by other evidence. The learned Judges were L1so influenced by the fact that Ali Ahmad P. W. 15 had not specifically named the four acquitted accused as having participated in the transaction in his statement under section 164, Cr. P. C. The learned Judges also rejected the evidence of Mubarik Ali because according to his statement under section 164, Cr. P. C. Abdul Ghafoor respondent 3 held the deceased by his right leg which was placed on the piece of wood as it was struck by hatchet and toka by the other two respondents. This was at variance with the version given by the eye‑witnesses at the trial according to which Abdul Ghafoor had held deceased by the head. These discrepancies in the ocular evidence were treated as "irreconcilable" and the prosecution evidence as a whole, "in chaotic state" and therefore it was not possible to hold even the three respondents guilty "with any degree of certainty." Leave to appeal was granted to consider whether the examination of evidence by the learned Judges proceeded on the correct principles governing the appreciation of evidence in the administration of criminal justice and further whether their conclusion does not suffer from its misreading? After hearing Malik Amjad Hussain, learned counsel for the appellant and Sheikh Shaukat Ali for the respondents, at length, and reading with them the material evidence produced in the case, it must be said at once that the conclusion of the learned Judges suffers from both these defects, which has vitiated their finding in the case. As will be seen presently, the learned Judges were in error to treat Mubarik Ali P W 17 and Akbar Ali P. W. 18 as interested witnesses on account of their alleged relationship with the deceased. Further apart from the evidence relating to the recovery of hatchet Exh. 1'. 5 and toka Exh. P. 6 (which it must be conceded was not accepted for reasons which were quite substantial there was massive circumstantial evidence of unimpeachable character which was completely overlooked by the learned Judges. Mubarik Ali P. W. 17 and Akbar Ali P. W. 18 who were believed by the Trial Court, were dubbed by the learned Judges as interested witnesses on the ground that they were first cousins of the deceased. This was done because of the admission made by Ali Ahmad P. W. 15 that the above named two witnesses were so related to the deceased. What the learned Judges failed to notice was that Ali Ahmad had made this obliging admission after he was declared hostile by the trial Court and in answer to a question asked in cross‑examination by the respondents' counsel. This indeed, becomes remarkable, when we bear in mind that in the course of his statement before the enquiry Magistrate Ali Ahmad was subjected to lengthy cross examination covering more than 21 printed full‑scape pages. But surprisingly enough, no such suggestion was made to him. The reason for this obliging admission are also not far to see. After he was declared hostile, in the course of his cross‑examination by A. P. P., Ali Ahmad stated ", . . Hidayat father of Hijrayat accused was my real maternal uncle. Badar Din is my real uncle who is father of Maqsood accused. My niece is married to Nasir a nephew of Hijrayat accused." It is, therefore, no wonder in the face of this close relationship subsisting between the accused and. Ali Ahmad that the latter when appearing as a witness at the trial stage, made the above obliging admission and also realised from the material parts of his F.

1. R. tending to create doubt as to the veracity of the prosecution version and the identity of the accused participating in the transaction. It is also important to point out, that while Mubarik Ali denied the suggestion as to his relationship with the deceased, no such question was put to his brother Akbar Ali P. W.

19. Thus it would be fallacious to treat these two witnesses as interested and therefore at a discount requiring confirmatory evidence aliunde, before their spoken word could be accepted, Again, if I may say so with due respect, surprisingly enough no reference, whatever, was made to confirmatory evidence, although such evidence was available in ample measure as would appoar, from the items listed below (i) Evidence of Hafiz Ali Ahmad Girdawar P. W. 5 at whose behest the deceased had gone to the Head '.Master, Government Middle School to fetch the measuring tape. (ii) Evidence of Ghulam Mustafa P. W. 7, Head Master, Government Middle School, Janiwala, who stated that shortly before the incident, he had lent the measuring tape Exh. P. 1 to the deceased. (iii) Recovery of measuring tape Exh. P. 1 from the Corner of the street at point No. 2 on the site plan Exh. P. V/ 1. (iv) Evidence of Hafiz Ali Ahmad Girdawar P. W. 5 stating that immediately after the occurrence, the deceased's wife came to him crying while he was still in the baithak of Karim Bakhsh she stated that I should accompany her to see what the accused had done ' to her husband, and as he accompanied her he saw the deceased in an injured condition near the common wall between the ihata in dispute and the ihata of respondent 1. (v) Recovery of the blood‑stained earth and the bloodstained piece of kikar wood Exh. P. 2 from the ihata of respondent

1. Thus it will be seen that the learned Judges, and I say so with respect, fell into serious error in confining their attention only to the direct ocular evidence in the case ignoring alltogether the cogent confirmatory evidence listed above. In Asadullah v. Muhammad Ali (P L D 1971 S C 541) it was, inter alia, observed as follows "The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case. Indeed it would be anamalous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be the basis of conviction." Referring to the facts of the precedent case it was observed that the learned Judges in the High Court further fell in error in isolating the ocular evidence furnished in that case by Mst. Rajan and Mst. Munawar Bibi from the corroborative evidence comprising of the incriminating recoveries. The learned Judges in the High Court in that case in the first instance rejected the direct evidence of the above named two women concerning the identity of the accused and then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused with the crime came in for a criticism of this Court. It was in that context that the above observation was made. In the instant case, the error is much more serious. The learned Judges having rejected direct ocular evidence for reasons which on scrutiny appear to be fallacious, have also completely ignored what is plainly ccgentA confirmatory evidence of the prosecution version. Therefore, the learned Judges have failed to determine the guilt of the three respondents on the totality of legal evidence available in the case as they should have had. It is a well established rule governing administration of criminal justice that evidence should not be considered in isolation as so many bits of evidence but the whole of it should be considered together and its cumulative effect must be weighed and given effect. Reverting to the quality of direct evidence furnished by Abdul Aziz P. W. 16, Mubaxik Ali P. W. 17 and Akbar Ali P. W. 18, the last two named have been found to be unrelated and therefore independent. The two first named are the immediate neighbours of Hijrayat Ali with their respective houses on either side of the ihata in dispute and are therefore natural witnesses. Akbar Ali though resident at a short distance was on a visit to his brother's house Mubarik Ali to enquire about his ailing sow Therefore, his presence too is not unnatural. They fully supported the prosecution case in the trial Court. There appears to be no reason that their statements implicating, inter alia, the three respondents in the commission of the crime be not accepted. In that respect, evidence of Abdul Aziz is of particular significance. Besides being a neighbour of Hijrayat Ali, he was also in unauthorized possession of a portion of the ihata in dispute which he had to give up alongwith Hijrayat Ali. Therefore, in a way there was community of interest between the two. Add to this the strong corroboration furnished by the confirmatory evidence listed above and the statement of Ali Ahmad brought on the record of the case under section 288 Cr. P. C. On the above analysis of the evidence I am of the view that the partici. pation of the three respondents in the commission of the crime and the various parts assigned to them, in relation thereto, is fully proved by the legal evidence in the case. Learned counsel for the respondents argued that respondent Hijrayat Ali had no particular motive to kill the deceased and the fact that he offered to surrender possession of the ihata in dispute provided his residential ihata was properly demarcated by measurement at the spot negatives any intention to kill. According to the medical evidence, the injury caused to the deceased was sufficient in the ordinary course of nature to cause death. The fact that the deceased became unconscious within minutes of the B assault on him and died in a matter of few hours, is also a strong presumptive proof of the requisite intention of respondent I and his associates in the crime. We know from experience that at times atrocious crimes have been committed from very slight motive, not only for any impulse of revenge but also to gain a small pecuniary advantage and to drive off for a time pressing difficulties. In the instant case, the ihata in dispute was contiguous to the residential ihata of Hijrayat Ali, and was in his unauthorised occupation, which he had to give up under the order of the Colony Assistant. He competed with the deceased and applied again for the allotment. But the deceased succeeded in securing the allotment which piqued Hijrayat Ali. The fact that the incident coincided with the visit of the Girdawar who was directed by the S. D. M. to deliver possession of the ihata in dispute to the deceased is also highly significant. Such bloody reprisals in circumstances similar to the instant case are by no means rare experience of criminal Courts in the country. For the foregoing reasons I would accept the appeal, set aside the judgment of the High Court and restore the conviction of the first three respondents herein as recorded by the learned trial Judge under section 302 read with section 34, P. P. C. for the murder of Mukhtar Ahmad. The question of appropriate sentence still remains. Learned counsel for the respondents argued that with the judgment of acquittal by the High Court there has supervened expectancy of life for respondents 1 and 2 which this Court may not in exercise of its appellate jurisdiction set at naught even if the appeal were to be accepted and their conviction restored. A similar plea was raised and repelled in two recent cases by this Court in the case of Asadullah Khan v. Muhammad Ali already noticed and Muhammad Khan v. Dost Muhammad (P L D 1975 S C 607). In the former case while rejecting the plea it was observed at page 549 as follows : "Question, however, arises whether the sentences of death imposed on the respondents by the trial Judge under section 302 read with ,,, . section 149, P. P. C. should also be restored. It was urged on their behalf that since they had acquired an expectation for life under the order of the High Court it was not a fit case to exact the extreme penalty of death from them . . . . . . . . . . . . . . . . A case in which the Court below had passed a patently erroneous order causing grave miscarriage of justice would not fall ipso facto within this doctrine, but if inordinate delay occurs in the disposal of an appeal, against order of acquittal the appellate Court may refrain from exacting the extreme penalty of death. In some reported cases this Court has refrained from inflicting death sentence on ground of delay, yet there is no universal rule that if the subordinate Court has on an erroneous or perverse view acquitted an accused person resulting in grave micarriage of justice the appellate Court cannot impose the sentence of death because of the very order of acquittal. Indeed sentence of death is the ordinary penalty for the offence of murder and the lesser penalty is awarded only if there be mitigating circumstances in which the offence was committed . . . . . . . : ' In the instant case, in my opinion, it would amount to grave miscarriage of justice if on the basis of doctrine of expectancy of life, the normal_ sentence of death was not imposed so far as Hijrayat Ali, the first respondent was concerned. He was indeed arch culprit who had the prime motive to kill his successful adversary in the matter of the allotment of ihata in dispute. He gave the first hatchet blow while the victim lay helpless, with his right leg placed on piece of wood offering an easy target. Apparently the operation was designed to cause painful and lingering death to satisfy his barbaric instinct. This heightens enormity of the crime. It would therefore, be unjust to reduce the sentence in his case. As to respondent 2 namely Abdul Ghafar, the only circumstance in his favour is that he delivered the second blow with a toka. There has been some argument whether the amputation of the right leg was a result of one or two blows On the direct evidence, the fact that Abdul Ghafar had struck the toka blow is established beyond any doubt. But whether that was in the nature of a mere "mopping up operation" or was as effective as the first blow delivered by Hijrayat Ali, is a matter not very clearly established: and upon which no definite opinion could be expressed. In this state of affairs, I consider it proper to reduce his sentence to imprison ment for life. So also the part assigned to Abdul Ghafoor is also established beyond doubt. He held the victim by his head to let his father to carry out his design unhindered. Consequently, I would restore and confirm the death sentence of Hijrayat Ali only and reduce that of Abdul Ghafar and maintain that of Abdul Ghafoor to imprisonment for life. I would also impose a fine of Rs. 3,000 upon Abdul Ghafar and Abdul Ghafoor each, and in default of payment of fine they shall suffer further rigorous imprisonment of three years each. In the event of recovery of fine, the same shall be paid to the heirs of the deceased as compensation under section 554‑A. Criminal Procedure Code. This aspect of the case was unfortunately overlooked by the trial Court. As recently pointed out by this Court in State v. Rabnawaz (P L D 1974 S C 87), the above provision of law is not only statutory but mandatory in its requirement. In that case too, in an appeal against acquittal by the High Court, sentence of fine was imposed by this Court to make up for the omission of the trial Court. s. A. H. Order accordingly.