P L D 1962 Supreme Court 269 (PLP)

B. Z. KAIKAUS, J.

On the night between the 26th and 27th of April 1957, a number of persons armed with firearms and other weapons attacked the inmates of the house of Mst. Sardar Bibi, alias Sardar Begum, widow of Said Muhammad of village Begowala District Sialkot, with the result that out of the inmates six persons were killed, while Buta, one of the assailants too met his death at the hands of his own companions by accident. Nazir Jat, Anwar, Nazir Dindar, Riaz Ahmad, Muhammad Ishaq alias Mushtaq and Ghulam Rasul, the six appellants in this appeal, were tried in respect of this incident along with Muhammad Hussain, Allah Ditta and Mst. Sharifan, of various offences including section 120-B and section 302/149 of the Pakistan Pena? Code, by the Sessions Judge, Sialkot. Nazir Jat and Riaz Ahmad appellants were convicted under sections 302/34, X07/34, 440/34 and 460/34, P. P. C., the sentences under section 302/34 being death in the case of Nazir Jat and transportation for life in the case of Riaz Ahmad ; all the other accused were acquitted. Nazir Jat and Riaz Ahmad filed appeals against their convictions while the State filed an appeal against the acquittal of the remain ing four appellants. The High Court ordered a retrial on the ground that the Assessors had not been properly questioned. As against Allah Ditta, Muhammad Hussain and Mst. Sharifan there was no appeal by the State and no retrial had been ordered in respect of them and therefore the retrial was held only in respect of the present six appellants. On retrial the Additional Sessions Judge Sialkot found all the appellants guilty under sections 148, 460/149,440/149,307/149 and 302/149, P. P. C. He sentenced Nazir Jat to death on six separate counts under section 302, P. P. C. each count relating to the murder of one person, and he sentenced all the remaining appellants to transportation for life in respect of each of those six counts. Under sections 148, 460/149, 440/149 and 307/149 he sentenced each of the appellants to 3 years', one year's, 3;ears' and seven years' rigorous imprison ment respectively, and under section 460/149 and section 440/149 he also awarded sentences of Rs. 200 and Rs. 100 respectively of fine or, in default, imprisonment for a period of one year and six months respectively. The convicts appealed to the High Court of West Pakistan, while Sultan, the son of Mst. Sardar, who had lodged the first information report filed an applica tion for enhancement of sentence under section 302, .P. P. C. to death in the case of appellants other than Nazir Jat. The High Court dismissed the appeal of the convicts and accepting the application for enhancement awarded death sentence instead of sentence of transportation for life. For a proper understanding of the cause of the present occurrence it is necessary to state some facts. Nazir Jat appellant is the son of one Said Muhammad from his first wife Mst. Hakam Bibi. Mst. Sharifan acquitted accused is the real sister of Nazir Jat. Riaz Ahmad appellant is the son of Sharif, real brother of Nazir Jat. The second wife of Said Muhammad was Mst. Sardar Bibi whose children are the victims of the present attack. Mst. Sardar Bibi was a widow when she married Said Muhammad, her first husband being Nabi Bakhsh from whom she had three sons, Nazir who is one of those who has been murdered in the present incident and Sultan and Bashir P. Ws. From S rid Muhammad Mst. Sardar Bibi had three children, 1qbal a son and two daughters Mst. Naziran and Mst. Bashiran all of whom met their death in this incident. Said Muhammad died about 12 years ago. On his death disputes arose about his property between his heirs. The Revenue Authorities sanctioned mutation of the property which stood in the name of Said Muhammad in accordance with Muhammadan Law. Nazir Jat appellant and his brother Sharif and Mst. Sharifan acquitted accused appealed and as a result the whole property was entered in their names. At this Mst. Sardar Bibi and her children filed a civil suit which was decreed by the trial Court and the decree was upheld on appeal filed by Nazir appellant and Sharif. During the pendency of appeal in the High Court Sharif was murdered and Mst. Sardar Bibi and her three sons from her first husband, Nazir, Bashir and Sultan were tried for the murder but were acquitted. Previous to the murder Nazir appellant and Sharif, his brother, on one side, and the three sons of Mst. Sardar BIN from her first husband on the other side, had been bound down under section 107, Criminal Procedure Code. According to the prosecution about two or three months before the present occurrence Mst. Sardar Bibi who was threatened by Nazir Jat appellant with revenge for the murder of Sharif approached Nazir Jat appellant for a compromise through Muhammad Hussain acquitted accused who is the wife's brother of Nazir Jat appellant and lives to village Dhariwal of Gujrat District. The reply received by Mst. Sardar Bibi from Muhammad Hussain was that she would not be forgiven even after all her children were murdered. On the 20th of April 1957, that is, six days before the present occurrence Nazir Jat appellant approached Jumma P. W. of village Panj Warlan in Gujrat District who bad been produced as approver in this case through his cousin Buta to help them in murdering the children of Mst. Sardar Bibi. Jumma P. W. agreed on promise of payment of a sum of Rs. 3,000 for himself and his first cousin Buta. Jumma P. W and Buta In accordance with the arrangement entered into between them and Nazir Jat appellant reached Begowala on the 23rd of April 1957, but the attack was for want of proper weapons adjourned to the 26th of April. On that day before sunset Jumma P. W. went to the house of Mst. Sardar Bibi in order to properly acquaint himself with a situation of the different kothas in the house to facilitate the attack. He was accompanied by Buta and Allah Ditta acquitted accused, who is a Mirasi of village Bhegowal, the village of Mst. Shatifan, acquitted accused. Jumma P. W. Buta and Allah Ditta met Mst. Sardar Bibi standing at the door of her house. She recognized them as she had already seen them in the house of Muhammad Hussain acquitted accused when she approached him for a compromise. It was Ramzan and she invited them to break their fast with her and she served them with the evening meal after which they departed and returned to the house of Nazir Jat appellant. At about midnight the party that was to launch the attack started from the house of Nazir Jat. It was comprised of the six appellants, Jumma P. W., Allah Ditta and Buta ; Riaz Ahmad as already stated is the son of Sharif, brother of Nazir Jat; Nazir Dindar is the servant of Nazir Jat ; Muhammad Ishaq alias Mushtaq is the son of Muhammad Hussain acquitted accused ; Anwar appellant is the first cousin of Bahawal Bakhsb who is the husband of Mst. Sharifan acquitted accused and Ghulam Rasul appellant is the paternal uncle of Anwar ; Allah Ditta acquitted accused had armed himself with a pistol ; Nazir Jat and Muhammad Ishaq appellants bad rifles ; Nazir Dindar appellant had a sword and the rest of the appellants had dangs. Riaz Ahmad and Ghulam Rasul appellants were carrying tins of kerosene oil and Ghulam Rasul had also a kassi. The house of Mst. Sardar Bibi consists of three kothas in one compound, two of the kothas being towards the south and one towards the north. The, compound is bounded by a wall. On the night of occurrence Nazir and Iqbal deceased and Bashir and Sultan P. Ws. the four sons of Mst. Sardar Bibl, were sleeping in the western out of the two southern kothas while Mst. Saidan who was a widow of Nabi Bakhsh, the first husband of Mst. Sardar Bibi and Sardar, a first cousin of Nabi Bakhsh were sleeping in the eastern kotha out of the two southern kothas along with Mst. Hafeezan P. W. and Amjad, the children of Nazir deceased, son of Mst. Sardar Bibi. In the northern kotha Mst. Sardar BIN was sleeping along with her daughters Mst. Naziran and Mst. Bashiran. However, at about midnight Mst. Naziran and Sardar, the first cousin of Nabi Bakhsh, went out and slept in the courtyard. Jumma P. W. placed the ladder against the wall of the northern kotha and he as well as Allah Ditta acquitted accused and Nazir Dindar and Anwar appellants climbed to the roof of that kotha. The remaining assailants climbed to the roof of one of the two southern kothas. Mst. Naziran who by the time the assailants arrived was sleeping out in the courtyard perceiving that there were men on the kotha shouted out as to who they were. In reply she got a bullet from the rifle of Nazir Jat appellant and she died on the spot. The roof of the southern kothas was dug and the kothas were set on fire by pouring kerosene oil. Then started an indiscriminate firing by the assailants in the courtyard as well as on the doors and windows of the three kothas. The assailants did not remain on the roof but some of them came down and Buta was the victim of a fire by one of his companions in the early stages of the incident. As the southern kotha had been set on fire the inmate; tried to escape. The inmates of the northern kotha too tried to escape because they were being fired at through the doors. Mst. Bashiran went out and was killed; Sardar, as already stated, was lying in the courtyard and was killed there ; Nazir and Iqbal deceased and Bashir and Sultan P. Ws. ran out of the southern kothas, Nazir and Iqbal were killed by the shots fired by the assailants, while Bashir and Sultan escaped and hid themselves not far away in a wheat field, and Nazir Dindar appellant pursued Bashir and Sultan but was unable to catch them, Mst. Said Bibi had been killed in the kotha where she was sleeping. Mst. Sardar Bibi remained in the northern kotha and was lucky to escape being hit. An hour after the occurrence Sultan and Bashir returned to their house; although they had not been hit by a bullet they had burns on their body on account of the fire in the kotha in which they were sleeping. A first information report was lodged by Sultan P. W. at Sambarial police station at 7- 0 a.m. the next morning. The dead body of Buta had been taken away by the culprits and it was thrown in a disused well half way between the village and railway station Begowala. It was recovered, according to the prosecution, at the instance of Anwar appellant. Evidence produced at the hearing consists of the testimony of Jumma P. W., the approver, and four eye-witnesses of the occurrence, Mst. Sardar Bibi, Sultan, Bashir and Mst. Hafeezan. Evidence was led to the effect that the dead body of Buta had been discovered at the instance of Anwar appellant. The Sessions Judge refused to accept that the body was discovered at the instance of Anwar appellant because of the statement made by Muhammad Sadiq P. W. a witness of recovery who stated that even before the recovery it was well-known in the village that the body was lying in the disused well and that Anwar appellant had not been interrogated by the police in his presence. According to this witness information regarding the dead body had been received from some village boys who were grazing cattle. The High Court too did not rely is its judgment upon this piece of evidence and therefore for the purpose of assessing the guilt of the accused the evidence relating to the pointing out of the body by Anwar has to be ignored. The appellants denied their guilt and stated that they were falsely implicated due to enmity. In their statements they did not specify the enmity on account of which they had been implicated but some facts were brought on the record showing reasons for false implication. Ghulam Rasul appellant had appeared as a prosecution witness in the case against Bashir and sultan P. Ws., sons of Mst. Sardar Bibi, in respect of the murder of Sharif. Anwar appellant had appeared as a prosecution witness in a case in which Bashir and Sultan P.Ws. and their deceased brother Nazir had been sent up for trial for burning the wheat belonging to Nazir Jat appellant, and also as in a case under the Arms Act against Sultan P. W. for keeping a ballam without license. Anwar appellant was one of the persons bound down against Sultan and Bashir P. Ws. under section 107 of the Criminal Procedure Code. It was urged before the learned Judges of the High Court that the statements of the eye-witnesses required corroboration as they were admittedly interested witnesses and that such corroboration could not come from the statement of Jumma, the approver, which was Itself tainted evidence and required corroboration before it could be acted upon. Reliance was placed before the learned Judges on Niaz v. The State (P L D 1960 S C (Pak.) 387). The learned Judges of the High Court were of the opinion that there was nothing illegal in acting upon the evidence of interested witnesses and that Niaz v. The State could not be regarded as laying down a legal rule that the testi mony of interested witnesses cannot be accepted without corrobo ration, for the weight to be attached to a piece of evidence was not a question of law. The learned Judges found that in the circum stances of this case they were prepared to act on the evidence of the interested witnesses only though they did find that the state ment of the approver also corroborated the eye-witnesses. The point strenuously argued before us is the same that was argued in the High Court, namely, that the eye-witnesses being interested their statements should not be accepted without corrobo ration and such corroboration cannot be afforded by the tainted evidence of the approver. It is urged that the High Court has not properly interpreted the judgment of this Court in Niaz v. The State. By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no Intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely impli cating an accused person) can never be accepted without corrobo ration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary S interested witness is concerned, it cannot be said that it is sate to rely upon his testimony in respect of every person against whom The deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Courts will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration It is not necessary that there should be the word of an independent witness supporting the story put forward by an Interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing. In the present case, the learned Judges did not find that the Interested witnesses were of exceptional veracity and, in fact, the circumstances on record would not have supported such an inference. They accepted the statements of the interested witnesses however after a consideration of the circumstances of the case. Following is the passage In the judgment which contains the reasoning on which the conviction is based. "The deed was so desperate that a large number of persons must have taken part in it, because the scene of the occurrence being a village the culprits could not but have been aware that it was by no means unlikely that residents of the village would intervene, and, therefore, the assertion of the prosecution witnesses that the culprits were about ten in number is not difficult to accept. The deeds that were done clearly show that persons intending to take revenge for some harm done, or believ ed by them to have been done, to them, were the perpetrators of the crimes that were committed, and this circumstance points in the direction of Riaz Ahmad and Nazir Jat, the son and brother, respectively, of Sharif, who was murdered about five years earlier and whose murderers were believed to be Mst. Sardar Bibi (P. W. 25) and persons connected with her, who, though sent up for trial, were acquitted. The evidence on the record shows that Muhammad Hussain, one of the acquitted accused, who is the brother of the wife of Nazir Jat, appellant and also of the wife of Sharif, the brother of Nazir, is the father of Muhammad Ishaq alias Mushtaq appellant, that Anwar appellant is married to the sister of Bahawal Bakhsh, who is the husband of Mst. Sharifan, one of the acquitted accused who is the sister of Nazir Jat appellant, that Ghulam Rasul appellant is the paternal uncle of Anwar appellant, and that Nazir Sansi appellant is a servant of Nazir Jat appellant. This connection between the different appellants makes it probable that they had taken part in the six murders of the relatives of Mst. Sardar Bibl (P. W. 29 with whom Nazir Jat bad disputes about property as well as some other differences. In view of what I have said above, I would have had no hesitation in accepting the deposi tions of Mst. Sardar Bibi (P. W. 25), Sultan (P. W. 26), Bashir (P. W. 27) and Mst. Hafizan (P. W. 28) against all the six appel lants even if that evidence had stood entirely uncorroborated. But, as I will presently show, the evidence of these witnesses does not stand uncorroborated." It will be observed that the learned Judges have relied upon two circumstances : (1) that the number of culprits mentioned was' such as would be required for an attack of the kind which is the subject-matter of these proceedings and (2) that the persons named as culprits were such as would be expected to join in the) attack, Without saying so the learned Judges have acted upon what was laid down in Niaz v. The State for they have found the number of persons charged appeared to be the true number of culprits and it had been laid down in that judgment that in such a case the statements of interested witnesses can be acted upon. We are in agreement with the learned Judges that the number oil culprits named was the probable number that would be required for such an attack and we would also agree that the second matter on which the learned Judges have relied is not an irrelevant consideration. The main reason why leave had been granted in this case was consideration of the question whether the statements of interested witnesses had been improperly accepted without corroboration and we find that except with respect to Riaz Ahmad the decision of the High Court is quite in accord with what was laid down in Niaz v. The State. Riaz Ahmad appellant was at the time of the assault about thirteen years of age. He could not be of any help in the attack and, in fact, his presence may have been a hindrance for the assailants. The main consideration on which the High Court proceeded, namely, that the number of accused is the probable number of the actual assailants does not advance the prosecution case against Riaz Ahmad appellant for the reason that he was not needed for the assault. The learned Judges of the High Court were of the opinion that as the murder of Sharif, his father, was being avenged he was likely to join the, assailants in spite of his young age. But he was also not an; unlikely person to be implicated because all the four young children of Mts. Sardar Bibi bad been murdered. We are of the opinion, therefore, that while otherwise accepting the findings of the learned Judges as regards other appellants we should give Riaz Ahmad the benefit of doubt. We have not entered into a detailed discussion of the evidence because having found that the conviction of the appellant except Riaz is in accord with what was said in Niaz v. The State the remaining points urged before us relate only to appreciation of evidence and it is not the practice of this Court to interfere f with appreciation of evidence by the High Court. We may, however, make a passing reference to the evidence of the approver Jumma. That the approver had participated in the attack Is clear from the record and in fact this has not been challenged by learned counsel who appears for the appellants. But he is on his own showing a person who is prepared to kill for money and obviously he is capable of making any false statement for a personal motive. It would be difficult therefore to rely on his evidence for convict ing an accused with respect to whose participation there was any serious doubt. The High Court did not however make his evidence the basis of conviction for it was of the opinion that even without his evidence there was sufficient material for convicting the appellants and a discussion of the use that could be made of this statement of the approver is unnecessary. This appeal except in so far as it relates to Riaz Ahmad is dismissed. The appeal of Riaz Ahmad is accepted and he is acquitted of all the charges on which he was found guilty. A.H. Order accordingly.