P L D 1976 Supreme Court 287 (PLP)

MUHAMMAD GUL, J.‑Wali Muhammad and Muhammad Akram, the two appellants herein, alongwith two others, namely, Muhammad Zaman and Sultan Khan (all of whom are inter‑related either by blood or marriage) were tried by the learned Sessions Judge, Jhelum for the murder of Allah Dad. Of the four accused, the first named was sentenced to death and the other three to transportation for life. On appeal and a reference, a Division Bench of the Lahore High Court, by. judgment dated 9‑2‑1973, gave benefit of doubt to Muhammad Zaman and Sultan Khan and accepted their appeal, but dismissed the appeal of the two appellants herein and confirmed the death sentence of Wali Muhammad. Leave was granted to examine the contention raised on behalf of the two appellants that their conviction rests on evidence, which is both partisan and inimical and is not sufficiently corroborated by independent evidence so as to bring home the charge beyond reasonable doubt, against the two appellants. The incident took place on 19‑3‑1970, which incidentally was the 10th of Mubarram at dhati peshiwela in village Gharibwal, P. S., P. D. Khan, District Jhelum, in the smithy of Ghulam Hassan (P. W. 10). Ghulam Hassan is blacksmith by profession and also owns a Sour‑mill. The smithy and the flour‑mill are situate in to portions of the same premises. The case of the prosecution is that on that day, Allah Dad deceased bad gone to the smithy of Ghulam Hassan for the repair of a small cot. The latter started working on it. But before be could complete the work, he left for the mosque to offer zuhr prayer. In the meantime, Farman Khan (P. W. 12), a phupha of the deceased also came to have his sickle and a ploughshare sharpened. During the temporary absence of Ghulam Hassan, Muhammad Bakhsh (P. W. 11) a maternal uncle of the deceased and Sultan Khan (P. W. 13) both of whom were also related to the deceased also came for a similar purpose. At this stage, as the deceased and the three aforesaid witnesses were awaiting the return of Ghulam Hassan from the mosque, the two appellants with two acquitted accused variously armed, also appeared on the scene. Wali Mubammad appellant had a rifle, Muhammad Akram, appellant a pistol, Muhammad Zaman a hatchet and Sultan Khan a Sun. The two appellants entered the smithy through the main entrance in the northern wall and opening on the street and shouted that they had come to avenge the death of their relation Muhammad Khan. The deceased tied to escape through the other door in the southern wall, but found the two acquitted accused standing in his way. As he retraced his steps in a bid to escape, Muhammad Akram appellant caught bold of him and both began to grapple with each other. In the course of struggle, Muhammad Akrarn dropped his pistol, but was able to fell the deceased and to get on top of him. Muhammad Akram was however, asked by his companions to leave the deceased alone so that he could be shot dead. Accordingly, Muhammad Akram got aside. As the deceased was trying to get up. Wali Muhammad appellant fired at him with his rifle from a close range hitting him in the chest and he ,dropped dead. There is a dual motive for the murder of the deceased. The deceased .and his brother Muzaffar alongwith another were accused for the murder of Muhammad Khan, a nephew (sister's son) of wall Muhammad, but the deceased was released on bail a few days earlier. This infuriated the four assailants. Another reason for the incident was that one Mst. Ghulam iFatima wife of Zaman Khan a brother of Sultan Khan, one of the acquitted accused was abducted by Ghulam Shabbir, a sister's son of Sultan Khan (P. W. 13). A case under section 366, P. P. C. was registered in which beside Ghulam Shabbir, Muhammad Bakhsh (P. W. 11), Sultan Khan (P. W. 13) and Daulat Khan (P. W. 8) were the accused,. That case was still pending. The F. I. R. was lodged on the same evening by Muhammad Bakhsh P. W. During the investigation of the case, blood‑stained earth of human origin and a pair of shoes identified as belonging to the deceased, were recovered from the spot. 'The cot brought by the deceased was also recovered. The autopsy on the body of the deceased showed that he .died of a rifle shot fired from very close range. The wound of entrance had blackened margins. The deceased had also suffered five bruises and seven abrasions on different parts of his body. Muhammad Akram appellant also had an almost healed up abrasion 3' x 2j" on the front .of the left leg below the knee. In his statement in the committing Court, he stated that he had suffered the abrasion in the course of his daily work as husbandman. At his trial, however, he stated that the abrasion was caused by itching. He denied having grappled with the deceased before he was shot dead. Muhammad Akram alongwith two acquitted accused was arrested on the night between 25th/26th March, 1970 by a nakabandt party. At the time of his arrest, pistol (Exh. P. 10) with five live cartridges was recovered from his dub. Wali Muhammad appellant was arrested on 31‑3‑1970 and on the same day, on his pointing out, a rifle which lay buried in the cattlepen of one Allah Bakhsh was recovered with five live cartridges. However, the two unofficial witnesses of the recovery of rifle were not produced and therefore. the evidence relating to the recovery of the rifle was excluded from consideration by the trial Court. The trial Court however, accepted the evidence relating to the recovery of the pistol with five cartridges from Muhammad Akram, at the time of his arrest. From among the eye‑witneses, the learned Sessions Judge did not consider it safe to rely on the evidence of Muhammad Bakhsh (P. W. 11), the first informant and Sultan Khan, both of whom were closely related to the deceased and whose presence in the smithy was not supported by Ghulam Hassan, who was treated by the learned Sessions Judge as an independent and a reliable witness. The learned Sessions Judge however, accepted the evidence of Farman Khan (P. W. 12) who according to the .Prosecution case had come to the smithy, before Ghulam Hassan left for the mosque. Farman Khan, though a maternal uncle of the deceased, nevertheless his presence in the smithy at the relevant time stood ‑established by the evidence of Ghulam Hassan. Farman Khan also actually .demonstrated in the Court as to how and at what stage of the transaction, The rifle shot was fired. This greatly impressed the learned trial Judge. The medical evidence also was a strong confirmatory circumstance. Since Farman Khan had named all the four accused including the two appellants as having participated in the fatal assault on the deceased, his evidence as supported by the medical evidence was considered sufficient by the trial Judge to convict the four accused. The learned Judges in the High Court on the other hand took the view that since the three eye‑witnesses are partisan and inimical, their evidence is not of the quality which could be relied upon for the conviction of the four accused, in the absence of some strong corroborative evidence from an independent and unimpeachable source. In the opinion of the learned Judges however, there was such corroboration of the evidence of Zaman Khan in the medical evidence, which showed inter alia that the deceased had grappled with his assailants before he received the fatal rifle shot injury. The injury below the knee of Muhammad Akram was also a cogent evidence in support of the grappling between him and the deceased. This in the opinion of the learned Judges clearly fixed the identity of the two appellants herein as being concerned in the killing of the deceased. Accordingly, their appeal was dismissed and the death sentence of Wali Muhammad was confirmed. But, in the opinion of the learned Judges, there was no such confirmation as against Muhammad Zaman and Sultan Khan and that even otherwise, the part assigned to them, was incompatible with the probabilities of the case and therefore acquitted them. The learned Judges also rejected, and for good reasons, the evidence relating to the recovery of pistol from Muhammad Akram. Raja Muhammad Anwar, learned counsel for the appellants submitted that the learned Judges 9n the High Court having disbelieved the evidence relating to the recovery of pistol (Exh. P. 10) from appellant Muhammad Akram by the nakabandi party creates a serious doubt in the case against him and that in any cage the medical evidence relating to the healed abrasion below the left knee of Muhammad Akram was not adequate corroboration of the evidence of Farman Khan to sustain a charge for a capital offence. So also with regard to the case against Wali Muhammad, learned counsel argued on the basis of this Court's judgment in Thoba v. The State (PLD1963SC40) and Bagh Ali v. The State (PLD1973SC321), that his conviction cannot be maintained on the basis of the ocular evidence of Farman Khan which was highly interested, after the rejection of the evidence relating to the recovery of rifle at his instance. The facts of the precedent cases relied upon by the learned counsel in support of his argument were materially different and as pointed out recently by this Court in State v. Mushtaq Ahmad (PLD 1973SC 418) everthing said in a judgment and more particularly, a judgment in a criminal case must be understood with great particularity as having been said with reference to the facts of that particular case. The, general rule in this behalf is well established that the appraisal of evidence of eye‑witnesses must be based upon a "full consideration and evaluation of all the circumstances" appearing in the case. Seldom are the circumstances of two cases alike. Therefore, any expression of opinion, in a case even if couched in general terms must be treated as limited to that case, unless it is a statement on an abstract proposition of law. In the instant case, the broad facts accepted by the trial Court as also the High Court are, that the deceased was done to death by a rifle shot in the smithy of Ghulam Hassan (P. W. 10), where the deceased had . taken a small cot for repair. This part of the prosecution was not seriously controverted. Ghulam Hassan, who even the learned counsel for the appellant could not dispute, was an independent witness, had testified to the presence of Farman Khan (P. W. 12) in his smithy. There is also the incontrovertable evidence relating to the dual motive for the crime. The medical evidence also furnishes a material corroboration for the prosecution case against the two appellants. Thus, beside the evidence of Farman Khan there are a number of physical circumstances which connect the two appellants with the commission of crime and the conclusion of the learned Judges in that behalf is unexceptional. Muhammad Zaman and Sultan Khan accused were acquitted not because Farman Khan was an unreliable witness, but because of want of any confirmatory circumstances to connect with the commission of the offence, which the learned Judges found in ample measure in the case of the two appellants herein. This satisfies the requirement of safe dispensation of criminal justice in the case, so far as the two appellants are concerned. In the precedent case, there was absence of confirmatory circumstances and the conviction rested on evidence which was both partisan and inimical. Learned counsel for the appellants, at the conclusion of his argument earnestly pleaded for the reduction of the death sentence of Wali Muhammad to imprisonment for life, because, owing to a fortuitous circumstance that on that date his case was still pending in the High Court, he had been denied the advantage of what learned counsel described as "general amnesty" declared on the 20th December 1971. The plea is without substance. The deceased who was unarmed was brutally done to death because, he had the misfortune of being enlarged on bail by Court. Appellant No. 1 ill deserves any leniency in these circumstances. Moreover, any indulgence or mercy shown to a convict or a group of convicts, by reason of an executive fiat under some special circumstances, cannot influence the judicial decision in a subsequent case, which must proceed in accordance with law. The sentence of death imposed upon Wali Muhammad is perfectly legal, and does not warrant any interference by this Court. The appeal is accordingly dismissed. S. A. H. Appeal dismissed.