P L D 1977 Supreme Court 4 (PLP)

ANWARUL HAQ, J.-Mr. Maqbool Elahi, Malik appearing for the appellant Farid, stated at the outset that he had instructions not to press the appeal on behalf of the complainant. As, however, this Court had already granted leave to appeal against the acquittal of the four respondents, we have, in accordance with the past practice of the Court in such matters, proceeded to consider the merits of the case with the assistance of the learned Assistant Advocate-General, Punjab, and the learned counsel appearing for the respondents. The four respondents, Aslam, Amir. Sbian and Hassan, were convicted, alongwith Haitem and Hnmayoon, by the learned Additional Sessions Judge at Jhang under sections 148 and 302 P. P. C. read with section 119 thereof, for the murder of three persons named Farid, Mohammad son of Shahadat and Mohammad son of Lai. Aslam and Humayoon were sentenced to death, whereas the remaining four accused were sentenced to undergo transportation for life for the offence of murder, and each of them was also ordered to undergo rigorous imprisonment for one year for the offence falling under section 148, P. P. C. In appeal and confirmation proceedings, a Division Bench of the Lahore High Court, by its order dated the 14th of July 1972, acquitted the four respondents on the ground that the prosecution case was not free from doubt. The convicts Haitem and Humayoon are said to have died in Jail during the pendency of the appeal in the High Court. The incident is said to have been taken place during the night between the 6th and 7th April 1968, in the area of village Bhochra at Chah Chhogi in the jurisdiction of Police Station Jhang Sadar, the distance between the place of occurrence and the Police Station being twenty-one miles. The first information report was made at 6-30 a m. on 7-4-1968 by the appellant Farid, who appeared as N. W. 15 at the trial. It was recorded by S. I. Anwar Hussain Shah (P. W. 17). It was alleged that on the night in question the three deceased persons along with Farid (P. W. 15) and Adil (P. W-16), were sleeping at the behak situate in the land of deceased Mohammad son of Shahadat. It was a moon-lit night. The two witnesses heard reports of gun fire, and immediate, took shelter under their cots. They saw that accused Haitem and Hassan' were armed with guns, Amir and Shian with rifles, while Humayoon was armed with a Chhawi (a hatchet) and Aslam was armed with a Ballam (a spear). The assailants were raising a 1-alkara to the effect that they had come to avenge the murder of Alwal. They cut off the head of Mohammad son of Shahadat and also caused fire-arm injuries to Farid and Mohammad con of Lai. They escaped from the spot, taking away with them not only their weapons, but the chopped off head of Mohammad. The alarm raised by the witnesses Farid and Adil attrasted Pehalwan (P. W. 14) and a man named Lal, who was later on given up by the prosecution. It is said that Mohammad son of Lai remained alive for some time so as to be able to make a dying statement (Exh. P V) before the investigating Officer. The motive for the crime was alleged to be the murder of Alwal, father of Haitem accused, five years prior to the present occurrence by Shahadat, father of one of the deceased persons in this case, his uncle Salehon and his three sons Mohammad, Bahadur and Hassan, who were prosecuted in that connection, but were acquitted during the month of Ramzan in the year 1967. The Investigating Officer was able to secure from the spot two empty cartridges of '12 bore and two empties of rifle bullets on the 7th of April 1968. He was also able to recover a rifle at the instance respondent Amir, and a gun at the instance of Haitem on the 11th of April 1968, when .he arrested them from a mosque near Adda Sultanpur. According to the evidence of the Firearms Expert, Mohammad Akram (P. W. 18), the crime empties matched with these weapons. All the accused persons pleaded not guilty at the trial, asserting that they had been falsely implicated on account of suspicion for the reason that they and the murdered man Alwal were descendants of a common ancestor named Mutalli. The respondent Amir further took the plea that he had no interest in the murder of Alwal because Alwal and his son Haitem had usurped his land before Alwal was murdered and that in fact Alwal's son Haitem had been suspecting him for Alwal's murder. He added that he was a school teacher in Chak No. 204/JB and was present in the school on the night of the murder. None of the respondents, however, led any evidence in defence. At the trial eye-witness account of the incident was furnished by witnesses Farid and Adil and it was sought to be corroborated by the dying statement of Mohammad son of Lai, as well as the matching of tae crime empties with the weapons recovered from Haitenm and Amir. All this evidence was accepted by the learned trial Judge. However, the learned Judges in the High Court have reversed these findings on the grounds that the presence of the two eye-witnesses Farid and Adil at the spot was doubtful; that the dying statement attributed to deceased Mohammad son of Lai did not appear to be genuine; that the recovery of the crime empties was not fully established on the record; and that in any case the crime empties were not shown to have been kept in proper custody until the recovery of the gun and the rifle, thereby creating a possibility of the empties having been fired from these weapons after their recovery from Amir and Haitem on the 11th of April 1968. Leave to appeal was granted for the purpose of satisfying ourselves whether the High Court had rightly rejected the corroborative evidence available in this case in the shape of the recovery of the weapons of offence and their matching with the crime empties, and also the medical opinion regarding the cause of death in each of the three murders. Before we advert to the facts of the case, we might mention that Mr. Aftab Farrukh, learned counsel for the respondents, rightly pointed Out, by reference to a number of precedent cases that we should be slow to Interfere with the order of acquittal made by the High Court, if we find that the opinion formed by the High Court was one which could be arrived at on the basis of the material available on the record, and that the accused had the right to the benefit of any doubt especially because the presumption of innocence existing in their favour stood strengthened by the fact of their acquittal by the High Court. In support of these submissions, the learned counsel drew our attention to Lalu v. The State P L D 1959 S C (Pak.) 258, Fateh Mohammad v. Bagoo P L D 1960 S C 286, Zafar Ali v. State P L D 1962 S C 320, Mohammad Khurshid v. State P L D 1963 S C 157, Mira/ Din v. Kala PLD 1964SC26, Fazal Khan v. State PLD1964SC54, State v. Khan Beg 1970 S C M R 353, Shah Nawaz v. Lal Khan 1972 S C M R 286 Noora v. State PLD1973SC469 and Mohibbat Khan v. Fateh Mohammad PLD1976SC593 The principle consistently enunciated by the Court is that as an ultimate Court, the Supreme Court must give due weight and consideration to the findings of the Courts below, and normally it should not interfere with their findings where it is satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that the Supreme Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below. However, if the grounds upon which the High Court has acted are not supportable on the record, or the decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from due procedure in the reception of evidence or otherwise, which is calculated to interfere with the due or safe dispensation of justice. then interference by this Court would be justified and necessary. Keeping these principles in mind, we now proceed to examine the facts of the present case. The first question is as to the presence of the two eye-witnesses: Farid and Adil, at the spot at the time the murders were committed. The learned Judges in the High Court have taken the view that their presence was doubtful, and for reaching this conclusion they have taken into consideration the relationship of the witnesses with the deceased, a discrepancy between their statements regarding the length of time the joint behak of the witnesses and the deceased had been in existence when the murders were committed, and the fact that the witnesses had gone under their cots and, therefore, they could not have seen or identified the assailants. The learned Judges have also adversely commented on the fact that no hole was found in the quilt covering the two deceased Farid and Mohammad son of Shahadat who were said to be sleeping on tie same cot at the relevant time. Finally, the learned Judges have also observed that the witnesses had made improvements in their statements at the trial, particularly by attributing an active role to respondent Aslam by saying that he had caught the head of Mohammad son of Shahadat when Humayoon was chopping it off. After perusing the evidence of the two eye-witnesses and taking into account all the relevant facts and circumstances, we are clearly of the view that the reasons advanced by the learned Judges for doubting the presence of these men at the spot are highly artificial and conjectural in nature. In the first place, there is the important fact, completely ignored by the learned Judges in the High Court, that if indeed the witnesses were no present and it was an unwitnessed crime committed during the darkness of the night, the first information report could not have been lodged by Farid (P. W. 15) at the police station, twenty-one miles away from the spot, at 6-30 in the morning. Nothing was brought out in cross-examination or otherwise to show that the first information report was not recorded a the police station at the time indicated in it. This report clearly describes the manner in which the injuries were caused to the three deceased persons, as well as the weapons carried by the various assailants. if the first information was not present in the behak at the time of the murders, then there is n explanation as to how he got all this information within such a short time of the commission of the crime, that he was able to narrate these details at 6-30 in the morning at the police station situated twenty-one miles away, from the spot. The presence of the other witness Adil is also mentioned in the F. I. R. There does not appear to be any special reason why this particular man should have been selected as a false witness, if he had not seen the occurrence. Although he is a malvair of the deceased Mohammad son of Lal, but he does not appear to be intimately involved in the blood-feud which had arisen between the deceased and the accused. It is true that the two witnesses had made widely divergent statements as to the duration of time for which the joint behak had been in existence, but they had not stated that they bad been sleeping there very night, and therefore, the duration of the existence of the joint behak was not a vital circumstance which could falsify their ocular testimony, as thought by the learned Judges in the High Court. This was not a vital circumstance in so far as the incident was concerned, and exaggerated importance was attached to it by the learned Judges. 1t is also clear to us that if the two witnesses had taken shelter beneath their cots, it could not mean that they were, by so doing, disabled from identifying the assailants. This is a highly conjectural speculation, and is not borne out by the replies given by the witnesses to the questions put to them in cross-examination in this behalf. From the evidence of these two witnesses it appears that they were fully familiar with the accused persons, and therefore, they would have normally been able to identify them when the assailants had come fairly close to the cots on which the deceased and the witnesses were sleeping. It is true that in the first information report no mention was made of respondent Aslam having caught hold of the head of Mohammad son of Shahadat at the time it was cut off by Humayoon with his hatchet, but this subsequent improvement by the. witnesses in their statements at the trial could not negative the fact of their earlier presence, if it was otherwise satisfactorily established on the record. It seems to us, therefore, that the learned Judges in the High Court have completely misdirected themselves in thinking that the presence of the two eye-witnesses was doubtful at the spot. We have seen that if they were not present, then Farid could not have made the first information report at the police station at the time when it was actually made, nor could the report be expected to contain all the relevant details of the incident and the mention of Adil as the second eye-witness. However, we are in agreement with the learned Judges that in the facts and circumstances of this case the ocular testimony of these witnesses requires corroboration, as there is enmity between the parties and the witnesses are connected. in varying degrees, with the deceased. As already stated, the prosecution seeks to find this corroboration in the dying statement of Mohammad son of Lal as well as the incriminating recoveries of the weapons of offence and the crime empties. The dying statement has been rejected by both the Courts below, and has not been pressed into service by the prosecution before us. It need not, therefore, detain us any further. However, we find that the learned Judges in the High Court have rejected the recoveries of the weapons and the crime empties on completely artificial and untenable grounds. We shall first take up the recoveries of the crime empties. The Investigating Officer has stated that he found the four empties at a distance of a few Karams from the cots of the deceased. He prepared recovery memo. (Exh. P C) in the presence of Salehoon (P. W. 10) and Zulfiqar (P. W. 11). Although Salehoon is related to the deceased, being uncle of deceased Mohammad son of Shahadat, but Zulfiqar is not so related. He is the Lambardar of the village, and the fact that he belongs to the erathery of the deceased could hardly be used to discredit his testimony. We can take judicial notice of the fact that the Lambardars P of the villages in the Punjab are generally drawn from the majority tribe inhabiting the village. That being so, Zulfiqar Lambardar could not be disqualified as a witness simply on the ground that he belongs to the brotherhood of the deceased. We have perused his testimony at the trial, and we can see no warrant for the conclusion that he was giving false evidence in support of the recovery of the four empties from the spot. It is true that the presence of the empties was not mentioned by the Investigating Officer in the Inquest Report, but the relevant column in the Inquest Report requires mention of those articles which are found near the dead body. The empties in the present case were found at a distance of four Karams or more (i. e. twenty feet from the cots of the deceased) and could not, therefore, be described as articles found near the dead bodies. The omission of crime empties in the Inquest Report was, therefore, of no consequence whatsoever. The other circumstance, which has influenced the learned Judges in the High Court, is that the Investigating Officer kept the sealed parcel of the empties with himself from the 7th to the 9th of April 1968. We find that F. C. Mohammad Sadiq (P. W. 4), who was ultimately entrusted with the duty of taking the crime empties to Jhangand then to Lahore for delivery to the Forensic Expert, had, in the first place, escorted the dead bodies to the mortuary at Jhang, and then returned to join the investigating Officer at the spot, the next day. There does not, therefore, appear to be anything sinister in the failure of the Investigating Officer to hand over the crime empties to F. C. Mohammad Sadiq on the 7th or the 8th of April 1968 as this man had been deputed to escort the dead bodies to the mortuary at Jhang. In any case the fact that the crime empties remained with the Investigating Officer until the 9th of April 1968. does not have any significance canoe as by that time the crime weapons had not yet been recovered at the instance of respondents Amir and Haitem. The crux of the matter appears to be that the learned Judges erroneously presumed that the come empties were not delivered to the Forensic Laboratory at Lahore until after the recovery of the crime weapons on the 11th of April 1968. At the time of granting leave to appeal in this case we had called for a report from the Director; Forensic science Laboratory, Lahore, and the same shows that the parcel containing the crime empties had been received at the Laboratory on the 11th of April 1965. The evidence of the Investigating Officer as well as that of F. C. Mohammad Sadiq (P. W- 4 j clearly establishes that the crime empties had been dispatched from the office of the Superintendent of Police, Jhang, on the 10th of April 1968. On that date the crime weapons had not yet been recovered. and therefore, it is impossible to accept the opinion recorded by the learned Judges in the High Court that the crime empties might have been fabricated by the Investigating Officer after the crime weapons had been recovered. The documentary evidence on the record contradicts any such conclusion. We are, therefore, satisfied that the High Court has proceeded on a complete misreading of evidence in coming to the conclusion that the crime empties had not been recovered from the spot or that they had been fabricated after the crime weapons had been recovered. Coming now to the recovery of the weapons at the instance of the respondent Amir, as well as the deceased accused Haitem, we find that the learned Judges have been unduly influenced by the fact that the two recovery witnesses, namely, Mutalli (P. W. 12) and Kamir (P. W. 13) were taken along by the Investigating Officer to the place where these two accused were supposed to be present at the relevant time, namely a mosque near Adda Sultanpur. There is nothing improbable or unnatural in the course adopted by the Investigating Officer, as he had asked for two persons to accompany him from the gathering which had assembled to condole the death of Mohammad son of Lai. These two witnesses may not be men of high status, but, nothing was brought out in cross-examination to discredit their testimony. No connection was established between them and party of the deceased. We consider, therefore, that the High Court' was again in error in rejecting the genuineness of the recovery of the crime weapons. It is significant that while the learned Judges took pains. to condemn the Investigating Officer for fabricating the dying statement of Mohammad son of Lai, they did not express any such opinion regarding the recovery of the crime weapons, when recommending disciplinary action against the Investigating Officer. The learned counsel for the respondents took pains to submit that the entire investigation in this case had been dishonest, particularly the fabrication of the dying statement of Mohammad son of Lai, and accordingly it reflected on the veracity of prosecution evidence, with the result that no reliance should be placed on the ocular testimony as well as the incriminating recoveries of the crime weapons and the crime empties. We regret we see no warrant for such a sweeping condemnation. Even if the dying statement is excluded from consideration, the other pieces of evidence available on the record have to be evaluated on their own merit and cannot be rejected simply for the reason that the dying statement has not been found to be worthy of credit. It was next submitted by Mr. Aftab Farrukh that in the challan submitted by the Investigating Officer under section 173, Cr. P. C., he had mentioned that all the accused persons were arrested by hire on the 14th of April 1968, thus casting a doubt as to the veracity of the recoveries of the weapons said to have been effected on the 11th of April 1968. An examination of the relevant papers, however, reveals that the date 14th of April 1968 was a mistake, and it watt so stated by the Investigating Officer in cross-examination. The police papers show that the accused persons including the respondents at whose instance the weapons had been recovered, were produced before a Magistrate on the 12th of April 1968 for obtaining a remand of their bodies. We are, therefore, in no doubt that the arrests had been made on the 11th of April 1968 and that the weapons were also recovered on that very date. Another point made by the learned counsel for the respondents was that the Fire-Arms Expert had mentioned the receipt of two parcels containing respectively two crime cartridges and two crime bullets, but this statement again appears to be an error, as only one parcel was received at the Forensic Science Laboratory by reference to the relevant documents. It is also to be noted that the Expert was not the person deputed to receive the incoming parcels in the first instance. After giving our careful consideration to the entire evidence brought on the record and the various submissions made by the learned counsel f r the respondents we have reached the conclusion that the learned Judges in the High Court have been influenced by highly artificial reasons and conjectures in taking the view that the witnesses Farid and Adil were not present at the spot at the time of the murders, or that the recovery of the crime empties and of the weapons of offence, has not been satisfactorily established on the record. These conclusions cannot at all be sustained on the record. As a result, we would hold that the ocular evidence stands fully corroborated in so far as the accused Amir and Haitem are concerned, but no such corroboration is available as regards the other accused persons. The part assigned to respondent Aslam at the trial is significantly absent from the first information report. As Haitem has already died in jail, we would restore the conviction recorded by the trial Court against Amir only under section 302, P. P. C. read with section 149 thereof. The other respondents must be given the benefit of doubt owing to absence of satisfactory corroboration about their participation. As regards the sentence, it has already been stated that the trial Court had awarded transfer nation for life to respondent Amir and three others, while sentencing Aslam and the deceased accused Humayoon to death. W e would restore the same sentence en the consideration that the incident took place as long ago as 1968, that the State had not moved the High Court for enhancement of the sentence awarded to this respondent, and that the complainant has chosen to withdraw from the present appeal It is possible that the enhancement of the sentence at this late stage might aggravate the relations between the parties. a result not in the public interest. The appeal is accordingly dismissed in so far as respondents Aslam, Shian, and Hassan are concerned and is accepted only against respondent Amir. His acquittal is set aside, he is convicted under section 302/149, P. P. C. for the murders of Farid, Mohammad son of Shahadat ant Mohammed son of Lal, and sentenced to transportation for life on each count, all the sentences to run concurrently. Respondents Aslam, Shian and Hassan shall be set at liberty forthwith provided always that they are not required to be detained in any other connection. S. A H. Appeal partly accepted.