1980 PLP 247 (SCMR)

DORAB PATEL, J.‑There was a fight on the 24‑10473 in village Balo in Peshawar district in which seven persons were killed and several others were injured by firearms. On the side of the prosecution in this appeal, Ghulam Jan, his sons Muhammad Aslam Khan and Asghar. Khan, his son‑in‑law Hafeezullah and his sister‑in‑law Mst. Rani were all killed by gunshot wounds. On the side of the appellants, one Nausherwan and one Mst. Zulekha were killed, whilst three of the appellants and two other persons were injured by fire‑arms. The first report of this occurrence was made by the second appellant, and the Sub‑Inspector, who recorded it was proceeding to village Bala to commence investigations, when he met Said Khan, who lodged the report on behalf of the prosecution side. In due course, the persons charged on both sides were committed to the Sessions Court, but the appellants were convicted for murder and sentenced to death, whilst the persons arrayed as the accused in the charge filed by the appellants were acquitted. The relationship between the appellants has some relevance to the case against them, so I would explain here that the first three appellants, Abdul Rauf, Abdul Qayyum and Abdul. Salem are the sons of one Abdul Rashid, whilst the fourth appellant Khushdil is the son of the second appellant. These four appellants were tried with Azmatullah son of the first appellant by the Sessions Court for the murder of Ghulam Jan, and the other members of his family. And, for the purpose of this appeal, it is sufficient to state that the prosecution relied on the dying declaration of Muhammad Alsam and it examined Ibrahim, Muhammad Sher and Muhammad Ali as eye‑witnesses of the occurrence. The three eye‑witnesses supported the prosecution case and implicated the appellants, but I may point out here that as Muhammad Ali was an absconder his lower Court statement was brought on the record by the learned Sessions Judge, under section 288 of the Criminal Procedure Code and this statement supports the prosecution case, Mian Ziauddin submitted that there were discrepancies in the description of the occurrence given by the three eye‑witnesses, That is correct, but all the three eye‑witnesses support the prosecution case that it was the party of the appellants, who had come and attacked the sons and son‑in‑law of Ghulam Jan, as they were returning from Sargodha. The motive for the occurrence, according to Ibrahim and Muhammad Sher, was that the first appellant had a ration shop and was a distributor of ghee for the village. And some days before the occurrence, there was a quarrel between him and Ghulam Jan and as Ghulam Jan had slapped the first appellant he and his family got together to take revenge on the fateful day. The appellants, however, denied the claim of the prosecution that Ghulam Jan had slapped the first appellant and I will presently examine their plea. Apart from examining eye‑witnesses to prove the occurrence, the prosecution relied on medical evidence and as strangely enough the Courts assumed that the investigations carried out by Qudratullah, Sub‑Inspector supported the prosecution case. I have to refer here to a statement by this witness which was ignored by both the Courts. The witness said‑‑ "I have examined Dilbar, Allah Bakhsh, Raza Khan, Mir Akbar, etc. The houses of these persons are situated on this thoroughfare. I have not cited them as P. Ws. because they did not support the prosecution case. No body in, this case produced to me any fire‑arm in spite of demand." I will presently revert to this statement of the witness, and it would be sufficient to state here that the Police secured the first appellant's gun and three empties from the place of occurrence, but as the empties did not match the first appellant gun, they are of no corroborative value. The appellants did not produce any evidence in their defence and submitted that they had been falsely implicated on account of enmity and in this connection they relied on the fact that the prosecution witnesses were facing a charge for the murder of the father of the first three appellants. As to the motive for the occurrence, the appellants admitted that the first appellant had a shop in which he sold ghee and that there had been a quarrel between this appellant and Ghulam Jan, and because Ghulam Jan had wanted to purchase ghee on a bogus ration card, there was an altercation between him and the first appellant in which the first appellant had assaulted Ghulam Jan, and later on in the course of the same day there was another quarrel between the first appellant and Ghulam Jan in the local mosque in which Ghulam Jan had been humiliated. Therefore, according to the appellants, Ghulam Jan had sent for his sons and son‑in‑law from Sargodha so that he could avenge the humiliations suffered by him. The learned Sessions Judge was impressed by the evidence of Muhammad Ali, Muhammad Sher and Ibrahim, and he was also of the view that this ocular evidence was supported by Muhammad Aslam's dying declaration, by evidence of motive and by the circumstantial evidence. Therefore, by his judgment dated 4‑8‑1975, he acquitted Azmatullah, but convicted the appellants under section 302/149, P. P. C. on five counts for murder and sentenced them to death. He also convicted the appellants under section 148, P. P. C. Fines were also imposed. The appellants, challenged their conviction in an appeal in the Peshawar High Court which was heard with the reference from the Sessions Court. By their judgment dated 5‑5‑1976, the learned Judges of the Peshawar High Court dismissed the appeal of the appellants, confirmed the sentence of death passed by the Sessions Court and increased the fines imposed by the Sessions Court on the appellants. Therefore, the appellants filed a petition for leave in this Court and leave was granted in order to examine whether the conviction of the appellants "was based on a proper application of the well‑settled principles of administration of justice." As the appellants admitted their participation in the occurrence, the real question before the Courts was how the occurrence began and the three eye‑witnesses examined by the prosecution all stated in their evidence that it was the party of the appellants who had come and attacked Ghulam Jan and other members of his family. Therefore, Mian Ziauddin submitted that Muhammad Ali and Muhammad Sher had falsely claimed to have seen the occurrence, whilst Ibrahim's evidence was so full of discrepancies that it was not fit to be accepted on this ground. I have examined the ocular evidence and find that there are ‑material) improvements between the evidence of Muhammad Ali in the committal Court and his statement under section 164 of the Criminal Procedure Code. Secondly, it is not disputed that Muhammad Ali and Said Khan could not be examined in the Sessions Court, because they were charged for the murder of the father of the first three appellants and as they were absconded, they could not be summoned to give evidence. Thirdly, as submitted by Mian Ziauddin, even the Police statement of Muhammad Ali was recorded after a delay of three days, therefore, learned counsel submitted that no reliance had been placed on Muhammad Ali's evidence by the High Court and that the Sessions Court had erred in relying on it. As far as we can sae, although this is not clear, the learned Judges of the High Court have not placed reliance on Muhammad Ali's evidence, and if so the view taken by them was correct. In any event, I would clarify that in the circumstances discussed no reliance can be placed on Muhammad Ali's evidence and the Sessions Court had erred in relying on it. I now turn to Muhammad Sher's evidence and I would re‑call here that the High Court has placed great reliance on the evidence of thin witness, although he was an interested witness, because in the words of the learned Judges, he was a natural witness. First as to the relationship of the witness with the party of the complainant, Muhammad Sher admitted "Ghulam Jan was the son of my paternal aunt". The witness also admitted that Ghulam Jan's daughter was married to his (Muhammad Sher's) brother. Now, as this witness lived near the place of occurrence, the learned Judges held that he was a natural witness and no exception can be taken to this view. But, the question before the Courts was not whether the witness was a natural witness or a chance witness, but whether he was a witness of truth. And, if a witness is riot a witness of truth, nothing turns on the fact that he was a natural witness. Therefore, Mian Ziauddin referred us to the fact that the prosecution had in the instant case relied on two F. I. Rs. One of these F. I. Rs. was lodged by Nisar Khan and the other by Said Khan and to say the least, it does not improve the prosecution case that neither Nisar Khan nor Said Khan were examined. Be that as it may, according to Nisar Khan's F. I. R., the only persons who witnessed the occurrence were Muhammad Ali, Ibrahim, Said Khan and Mustafa Khan. Next, according to Said Khan's F. I. R. there were only two witnesses of the occurrence, namely‑ Ibrahim and Nisar Khan. Thus neither of the informants have in their complaints referred to Muhammad Sher as an eyewitness of the occurrence, but as he was so closely connected with the deceased, it is impossible to believe that Nisar, Khan or Said Khan would have omitted to mention Muhammad Sher's name as an eye‑witness in their F. I. Rs., if Muhammad Sher had really witnessed the occurrence. Additionally, as submitted by learned counsel, there was unexplained delay in recording the witness's statement to the Police. Therefore, in granting lave, this Court had expressed its anxiety at the reliance placed by the Courts below on Muhammad Sher's evidence and having examined the evidence with the assistance of both the learned counsel, I am satisfied that Muhammad Sher's name would have been mentioned in the F. I. Rs. lodged on behalf of the party of the complainant, if lie had really been present at the place of occurrence. And, as hi name is not so mentioned, in my opinion, both the Courts below erred in relying on Muhammad Sher's evidence. I now turn to Ibrahim's evidence. It is true that the witness full supported the prosecution case. And, in this connection, he said that as h was returning from his fields at about 4‑30 p.m., on the day of the occurrence, he saw Muhammad Aslam with his brother and brother‑in‑law going to Ghulam Jan's house followed by Said Khan, Muhammad Nazir and Babu Nazir. Further, according to the witness, as these persons were turning into the lane towards their house, the appellants came armed with guns and tamachas and when they were three or four paces from Muhammad Aslam and the members of his party, the second appellant started abusing them "and simultaneously Abdul Rauf started firing at Aslam, Asghar and Hafiz. With the fire shots of Abdul Qayum and Abdur Rauf, Aslam and Asghar were hit and injured. Hafiz Khan rushed towards his lane in order to take shelter. He took his pistol . . . . . started firing at the accused. Thereafter Ghulam Jan and Mst. Rani also came out of their house. Ghulam Jan (dead) was armed with a D. B. shotgun. Ghulam Jan also joined Hafiz and they both started firing at the accused and the accused party were also firing shots at the dead party." Whilst this evidence explains the casualties on the side of the appellants, Mian Ziauddin rightly stressed the fact that the witness had been charged with Muhammad Ali and others for the murder of the father of the first three appellants, therefore, the witness had been produced in handcuffs before the Courts. In these circumstances, the witness was obviously not a disinterested. witness. Again, whilst the witness had a very clear recollection of how the members of his party had been bit, some how by a strange lapse of memory, he could not explain how the party of the appellants had ID received their injuries except for Nausherwan and MJt. Zulekha. But as submitted by Mian Ziauddin, his evidence in the Sessions Court about Mst. Zulekha was inconsistent with his statement to the Police. And, on the other hand, the witness had implicated the acquitted accused, Azmatullah, in his statement to the Police, who was tried by the Sessions Court, presumably, because of the position taken by this witness in the lower Court. However, the other witnesses did not implicate Azmatullah, so in order to bring his evidence into line with that of the other two witnesses, he said "I did not see Azmatullah accused at the spot at the time of the incident. It is incorrectly recorded in my Police statement that Azmatullah too had fired at Ghulam Jan. It is also incorrectly recorded there in that Khushdil and Azmatullah alone had at Ghulam Jan." Further, the witness said that Muhammad Sher "was present with me in the graveyard at the time of the incident." But, for the reasons which I have given I am satisfied that Muhammad Sher did not see the occurrence and Ibrahim falsely claimed that Muhammad Sher was with him and had seen the occurrence. In view of these and other discrepancies between the evidence of this witness and his earlier statements and the circumstantial evidence, Mian Ziauddin submitted that we should reject the evidence of Ibrahim as false. Now, I am disturbed by the discrepancies in the evidence of this witness, but I would hold that it is a question of sifting the grain from the chaff: And, I would recall here that the Sessions Court appears to have assumed that the ocular evidence was corroborated by evidence of motive. Therefore, I would now turn to this aspect of the case. Like Muhammad Sher (whose claim to have seen the occurrence was false) Ibrahim referred to the dispute between the first appellant and Ghulam Jan over the distribution of ghee and in his evidence that "Ghulam Jan bad given slap to Abdul Rauf". Now, if this was the only dispute between the parties as claimed by the witness, it is obvious that the appellants bad a motive for attacking Ghulam Jan. But, unfortunately, for the prosecution the position taken by Ibrahim on the question of motive in the Sessions Court is completely inconsistent with his statement to the Police. And, it would be sufficient to refer to the relevant passage in the cross‑examination of Ibrahim. It reads: "I did not state in my Police statement that Ghulam Jan was disgraced by Abdus Rauf, Abdul Qayum and Asmatullah (Confronted so recorded). I had stated to the police that Ghulam deceased had slapped Abdur Rauf (Confronted not so recorded). This slapping incident had taken place 10‑15 days before the incident. It is incorrect that on the same day when Ghulam Jan slapped Rauf, Ghulam Jan was disgraced and beaten by Abdur Rauf, Abdul Qayum and Asmatullah, in the Mosque. It is incorrectly recorded in my statement Exh. D. B. that on the day when Abdur Rauf was slapped Abdul Qayum and Asmatullah had disgraced Ghulam Jan in the Mosque." I am not able to believe the claim of this witness 'that the Police had not recorded his statement correctly, and I am satisfied that he falsely repudiated his statement to the Police. Unfortunately, this aspect of the case was completely overlooked by the Sessions Court and with respect, the observations of the learned Judges of the High Court on this question are somewhat inconsistent, therefore, we have to re‑examine the position in this Court and it is absolutely inconceivable that Ibrahim would have said to the Police that Ghulam Jan had been publicly disgraced .by the appellants, unless he had been publicly disgraced. And, as he was public disgraced it cannot reasonably be contended that the appellants had a motive for avenging any insult to them by Ghulam Jan. On the contrary as claimed by the appellants, it was Ghulam Jan and his sons, who had a grades against the appellants, therefore, far from corroborating Ibrahim's evidence, the prosecution case about motive supports the plea of the appellants. Mr. Ibne Ali, however, relied on the medical evidence. But, as I have explained, the question is not whether there was a fight between the two parties, but how that fight had begun and on this question, the medical evidence cannot possibly throw any light whatever. Mr. Ibne Ali also relied on the fact that the occurrence had taken place near the house of Ghulam Jan, therefore, he submitted that this was a circumstance which corroborated Ibrahim's claim that it was the party of the appellants, who had made a re‑meditated attack on Ghulam Jan's sons as soon as they reached their house. I am unable to accept this submission for more reasons than one. In the first place, there is no evidence to show that the appellants knew that Muhammad Aslam, Muhammad Asghar and Hafizullah were returning by car from Sargodha, therefore, it was impossible for them to know that their victims would be reaching their house at about 4‑30 p.m. Secondly, as it was the appellants, who had publicly humiliated Ghulam Jan, they had no motive to attack Ghulam Jan's sons, and on the contrary it was Ghulam Jan's sons, who had a motive to avenge the public humiliation of their father. Thirdly, Qudratullah, Police Sub‑Inspector, who carried out the investigations said in his examination‑in‑chief "The incident took place on a thoroughfare in village Balo near the graveyard and this path is used by the people of village Balo for going and coming. Point No. t is the place where Aslam, Asghar and Hafizullah were present and were fired at by Abdul Qayum, Abdur Rauf, Abdul Salam, and Nausherwan. Since the point was situated on a thoroughfare and was used by the people of village, therefore, no blood was found in spite of search." As the occurrence took place on a thoroughfare "used by tire people of village" the fact that the appellants were on that thoroughfare is not by itself sufficient to corroborate the evidence of that unreliable witness, Ibrahim, that the appellants had come to attack the family of Ghulam Jan. And, on the other hand, I would recall here that, according to Qudratullah, he had examined Dilbar, Allah Bakhsh, Raza Khan, Mir Khan and other persons, whose houses were situated "on this thoroughfare where the occurrence took place", but Qudratullah said that these persons "did) not support tire prosecution case". It is true that the appellants could have examined these persons, but as Ibrahim was an. inimical and unreliable t witness, the failure of the prosecution to examine even one of the several independent witnesses, who were available reacts against its claim that thel appellants had made a pre‑meditated attack on the sons of Ghulam Jan. Mr. Ibne Ali, however, relied on Muhammad Aslam's dying declaration and submitted that it furnished ample corroboration of Ibrahim's evidence. But, although Muhammad Aslam has said in his dying declaration that the first two appellants had killed him, Dr. Saleem in whose presence this dying declaration was recorded said in his cross‑examination "in my presence Muhammad Aslam deceased mentioned only names and nothing) else." Mr. Ibne Ali could not throw any light on this discrepancy between Dr. Saleem's statement and the dying declaration of Muhammad Aslam, deceased. Mian, Ziauddin, on the other hand, stressed the fact that if this dying declaration was accepted it falsified Ibrahim's evidence, because it implicated only two persons. Now, the Courts below have brushed aside this obvious difficulty with the observation that the declarants became unconscious before he could complete his statement., Thus, they appear to have assumed that Muhammad Aslam would have implicated all the appellants and supported Ibrahim's evidence if he had not become`" unconscious. With respect, as we have no means of knowing what Muhammad Asiam would have said if lie had lived to complete his statement, no reliance can be placed on this dying declaration. I would also repeat here that the question in this appeal is not whether Muhammad Aslam or his brother or his father were killed by the shots fired by the appellants, but the question is how an occurrence, which led to casualties on both sides, had begun, and as the dying declaration does not throw any light on this crucial question, it is of no corroborative value, and, on this ground also the Courts below erred in relying on it. The result of this discussion is that the prosecution case against the appellants rests on Ibrahim's evidence, and as it would not be safe to base any conviction on Ibrahim's evidence the prosecution has failed to prove that the appellants had made a pre‑meditated attack on Ghulam Jan and his family. On the other hand, in the circumstances discussed, the only inference possible from the evidence is that the appellants happened to be in "the village thoroughfare" when the sons of Ghulam Jan returned home by car from Sargodha, and this chance encounter led to a sudden fight, therefore, although the consequences of the sudden fight wore catastrophic to both the parties, it cannot be said in these circumstances that the appellants were guilty of murder, and I would set aside the convictions and sentences passed against them. The only question which remains for consideration is whether the appellants are guilty of any other offence and Mr. Ibne Ali drew out attention to the medical evidence and submitted that the appellants had behaved in a callous manner in killing five persons. But, there were fatal causalities on the side of the appellants also, and as the question is not merely of counting the number of the dead on the two sides, in the peculiar circumstances of the case, I would convict the appellants under the First Part of section 304 of the Pakistan Penal Code and sentence them to) the sentence undergone. They shall, therefore, be released forthwith if nod required on any other charge. Sentence reduced.