1984 PLP 930 (SCMR)

MUHAMMAD HALEEM, ACTG. C. J.‑This appeal, by special leave, arises from the judgment of the Lahore High Court, dated 2nd of October, 1.978, by which while maintaining the conviction of the appellant under section 302, P. P. C. his death sentence was altered to imprisonment for life. The appellant was tried along with Ghulam Hassan, Bashir Ahmad, Talib Hussain, Allah Bakhsh alias Bakhsha and Muhammad Ashraf alias Maqsood for committing the murders of Ghulam Qadir, Mst. Talia Bibi and Mst. Munawar Bibi and while the others were acquitted the appellant was convicted on three counts for murders under section 302, P. P. C. The prosecution case was that at about 7 p. m. on 18th of June, 1978, Fazal Elahi and deceased Ghulam Qadir were irrigating: their land when all of a sudden Ghulam Qadir left the place and went to the house of Mst. Talia Bibi which was about 50 to 60 Karams away. Fazal Elahi also left the place for drinking water, and soon after he saw the appellant and three acquitted accused namely, Ghulam Hussain, Bashir Ahmad and Talib Hussain, armed with guns; entering the house of Mst. Talia Bibi just after Ghulam Qadir entered the gate of the Ahata of the house; and from amongst them the appellant climbed the wall and fired the first shot followed by others. Another and cry was heard and after a while they decamped from there. Fazal Elahi along with two others namely, Muhammad Shafi and Sardar Muhammad, who had witnessed the firing, entered the Ahata where they saw the dead body of Mst. Munawar Bibi lying in the courtyard and that of the other two in the room. All of them had fire‑arm injuries. The motive being that Muhammad Aslam, a nephew of Ghulam Qadir, had contested election in 1965 against Maqsood, which gave rise to a rivalry on account of abuses being exchanged between Ghulam Qadir arid Maqsood. Muhammad Aslam won the contest where after Maqsood, Taiib Hussain, Naseem, Akram and Dr. Maqsood cut the nose of Ghulam Qadir, deceased, for which they were prosecuted and except Talib Hussain, who was acquitted, the others were convicted. Another motive imputed was that the deceased had a liaison with Mst. Talia Bibi, and finding an opportunity upon seeing the deceased entering her house they committed their murders. Fazal Elahi, leaving the other two witnesses at the spot, left for Police Station Factory Area, where his statement was recorded at 10‑00 p. m. by an A. S.

1. From the house of Mst. Talia Bibi 8 empties of '12 bore were seized and pellets were seen embedded in the wall. Except for Fazal Elahi (P. W. 17), Sardar Muhammad was abandoned and Muhammad Shafi (P. W. 18) was declared hostile. Another witness Barkat Masih (P. W. 16) was examined to depose that he had seen two of the assailants of whom one was the appellant near the graveyard, and also to the effect that they had 'asked him as to where deceased Abdul Qadir was, to which he stated that he was in the house of Mst. Talia Bibi. The appellant when examined under section 342, Cr. P. C. stated that he was innocent and that although he was opposed to the candidature of Aslam to the B. D Elections, yet be did not side with Maqsood one of the acquitted accused. He admitted having produced his licensed gun but denied the recovery of 2 other fire‑arms namely, an unlicensed shot‑gun and a revolver said to belong to deceased Ghularn Qadir about which he stated that they were planted on him. The trial Court accepted the recovery of the unlicensed gun at the behest of the appellant and so also the recovery of revolver and the live cartridges belonging to deceased Ghulam Qadir while rejecting the plea of the appellant that they were planted on him, as the trial Court found no reason for the Investigating Officer to foist these weapons and the cartridges. However, these weapons were not wedded to the empties, but the trial Court nonetheless held that this may be "due to lack of sufficient identifiable data". Here it may be mentioned that the recovery of the gun from Allah Bakhsh was rejected as the trial Court felt that in the absence of the cartridges there was no point in keeping an empty gun. The trial Court while appraising the ocular testimony accepted it qua the present appellant although Muhammad Shafi (P. W. 18) only mentioned the name of the appellant and about the others he stated that there were 2 or 3 other persons along with him whose names he did not know. As far Barkat Masih, his evidence was also accepted to the extent of the implication of the appellant although he specifically stated that he saw two persons namely Bakhsha and the present appellant‑ with rifles in their hands. The reason assigned for its acceptance by the trial Court was that in the case of Bakhsha there was no independent corroboration to confirm his participation. The main reason which weighed with the trial Court for convicting the appellant was that throe witnesses had unanimously implicated him. Additionally, the trial Court also took into consideration the fact that the appellant and Allah Bakhsh had an interview with Maqsood, who was detained in the District Jail, Jhang, despite the fact that the trial Court did not accept the case of conspiracy as it was, in its view, not established qua Allah Bakhsh alias Bakhsha, as his name was not mentioned in the interview register and Muhammad Ashraf alias Maqsood, and they were, accordingly, acquitted of the charge under section 302, read with section 109, P. P. C. As for Talib Hussain, the trial Court held that as he was falsely implicated in the nose cutting case earlier and acquitted, his version that he was implicated on account of suspicion was correct as he had no motive to join hands to commit the murders. He was also acquitted. As for the participation of the other assailants, the trial Court noted from the evidence of Fazal Elahi that he had omitted to mention the name of Allah Bakhsh while Muhammad Shafi did not name Ghulam Hassan, Talib Hussain, Bashir Ahmad and Allah Bakhsh. The trial Court also noted the fact that the Investigating Agency had found Ghulam Hassan and Bashir Ahmad innocent and that there was no corroboratory evidence to connect these persons with the crime. Added to it was the assessment of the ocular testimony by the trial Court that it was "hopelessly poor". Lastly, the trial Court also found that none of them had any motive to attack Ghularn Qadir and the other deceased. As regards the imputation that the deceased Ghulam Qadir had a liaison with Mst. Talia BR6i, the trial Court came to the conclusion that there was nothing on record to substantiate this belief; and if at all this was so it was only Muhammad Ashraf alias Maqsood who could have had a motive to kill the deceased Ghulam Qadir as he was related to her and not the others. However, despite this relationship; the trial Court was of the opinion that this could not have been the reason for the commission of the murders. Concluding, the trial Court acquitted Ghulam Hassan, Talib Hussain and Bashir Ahmed of the offence under section 302, read with section 34, P. P. C. and so also Allah Bakhsh alias Bakhsha and Muhammad Ashraf alias Maqsood of the offence under section 302, P. P. C. read with section 109, P. P. C. while the appellant alone was convicted on the substantive charge of murder on three counts and sentenced to death on each count. On appeal and reference, the High Court rejected the recovery of the guns at trio behest of the appellant, as they did not match with the crime empties. As for the revolver said to belong to deceased Ghulam Qadir, it was also not accepted as its licence was not produced nor any one was examined to identify it as the property of the deceased. Additionally, the High Court also held that this recovery is not supported by Muhammad Shafi and Nazir Ahmad the recovery witnesses, but only by the Investigating Officer, who had failed to establish that it was in the possession of the deceased Ghulam Qadir at the time of his murder and that it was picked up by the appellant. This recovery, in the opinion of the High Court, was of no value. Further, the High Court held that apart from being a friend of Muhammad Ashraf alias Maqsood, he had no motive as he was not one of the persons who had participated in the nose cutting of the deceased Ghulam Qadir. As the High Court had discarded the recoveries made at the behest of the appellant, it only referred to the ocular testimony and adopted the same reasons as were given by the trial Court for holding the appellant guilty of the crime. In holding so, the High Court was of the opinion that interested testimony of Fazal Elahi stood corroborated by that of Muhammad Shaft, who, though distantly related to deceased Ghulam Qadir, had no motive to falsely implicate the appellant. Further it was of the view that the testimony of Barkat Masih (P. W. 16) also lent a support to the testimony of Fazal Elahi. Accordingly, while upholding his conviction, the High Court reduced his death sentence to imprisonment for life on three counts as it was of the view that according to the witnesses only one shot was fired by him and there was nothing to show that it bad struck any of the three deceased. Besides a doubt was also entertained as to whether it actually hit any one or went amiss. Leave to appeal was granted to consider whether the conviction of the appellant was consistent with the principles of safe dispensation of justice having regard to the conflicting nature of evidence and other circumstances unexplained by the prosecution. While appraising the testimony, we found that two of the injuries on, deceased Ghulam Qadir were from a close distance and so also the injuries on the other two deceased. The dead bodies of Mst. Talia Bibi, in sleeveless B vest and a Chaddar, and Ghulam Qadir were found in the room of a Haveli while that of Mst. Munawar outside the room in the courtyard of the house. This was not consistent with the prosecution case as it was alleged that the appellant bad fired the first shot up in climbing the wall while the others followed him by firing shots upon entering the Ahata of the house. Nowhere it was said as to where the deceased Ghulam Qadir or the other two deceased were. This obviously fails to explain as to how the shots were fired from such a close range as found by the Doctor and also as to how the deceased could have entered the room and joined the company of Mst. Talia Bibi within such a short time as deposed to by the witnesses. The clothes worn by deceased Mst. Talia Bibi and the presence of Ghulam Qadir deceased, on the other band, gives an impression that the two were there for some time with the obvious object of enjoying each other's company while deceased Munawar Bibi, who was a young girl, remained outside the Haveli apparently for the reason of privacy. These features militate against the version given by the witnesses whose evidence had been described by the trial Court to be hopelessly poor as against the acquitted accused. The trial Court nonetheless had taken into consideration the recoveries at the behest of the appellant which was rejected by the High Court and for good reasons. It is only Fazal Elahi who had implicated the appellant, along with Bashir Ahmad and Talib Hussain, but his testimony had not been accepted by the trial Court qua the 3 acquitted co‑accused. There also does not appear to be any motive for the appellant to join hands with the other unknown persons to commit the murders of deceased Ghulam Qadir, in the absence of any allega tion that he was involved in the nose cutting of Ghulam Qadir deceased. Similarly he was not related to Mst. Talia Bibi, and, therefore, there could not be any question of family honour to commit her murder. Therefore, on the premises of motive his case was not different from those who were acquitted. Mere absence of enmity against the witnesses is not sufficient to bring home the charge of murder if their evidence is found to be inherently unreliable as there is no yardstick to Judge as to whether what they unanimously said could be true qua the appellant when they had falsely implicated the others. As for Barkat Masih, his statement was recorded on his own showing, after 15 or 20 days, therefore, his reliability as a witness is always questionable. He claims to be a neighbor of Mst, Talia Bibi and knowing that she was murdered and having seen the appellant before and after the occurrence, yet tie failed to give this information to the Investigating Officer immediately after the occurrence. As to why he did not appear earlier after the commission of the offence, he his not given any explanation. This throws a grave doubt on the reliability of his witness. The Courts below did not consider this feature while assessing his evidence. Moreover, accord ing to the prosecution there were three others also who had taken part in the firing. How was it that he was only able to see two of the assailants of whom one was the appellant. There is nothing on record to show as to from where the others had joined them. The position that now emerges is that the conviction rests only on the tainted ocular testimony of these three witnesses when in all essential respects it stands belied. Therefore, it is difficult to accept their ipsi dixit without any independent corroboration in the wake of false implication of many others who rave since been acquitted. Accordingly, the prosecution has failed to establish the guilt of the appellant beyond doubt. His appeal is accepted and he is acquitted. S. Q. Appeal accepted.