P L D 1959 Supreme Court (Pak (PLP)

CORNELIUS, J.‑-This judgment will dispose of two criminal appeals viz., Criminal Appeal No. 7 of 1958 by four convicted persons, namely Rehmat, alias Rehman, Muhammad Ali alias Mahando, Mirza and Mehra, and No. 15 of 1958 by Sardara, father of two of the murdered men in the case named Sarja and Muhammad Yar, against the acquittal at the same trial of five persons, namely Nazira, Amira, Umra, Shera and Jallu. Jail petition No. 86 of 1958 is by one Mathela who was also convicted in the same case. At the conclusion of arguments, which were presented in full on behalf of (i) the convicted appellants, (ii) the complainant Sardara and (iii) the State, we were satisfied that leave to appeal should be granted to Mathela as well, and we have A accordingly dealt with his case in this judgment as if he were an appellant along with the four convicts named above. The case against Mathela, as it emerged after the judgment delivered in the High Court was in all respects the same as against the other four convicted persons, to whom leave to appeal was granted in order to reconsider the facts of the case, in the light of certain R arguments raised in the petition. Sardar's petition urged that there was no material difference between the prosecution case as made out against the five convicted persons and the case against the five persons who had been acquitted, and he therefore prayed that the acquittal should be reversed. Leave to appeal was granted to him as well, since the question raised was one which would clearly arise for consideration in the appeal by the convicted persons. Briefly stated, the facts of the case are as follows. The two brothers, Sardara P. W. l l and Mehra P. W. 15 are Bhattis, residing in village Thatta Rehman. Mehra's daughter Mst. Rajan P. W. 12, aged about ninteen years and unmarried, was abducted by certain of the accused persons, residents of the village, and was kept in a number of villages viz. Kanni Madhora, Atla Ghulam and Jogiwala, before she was recovered after a lapse of five days from the last‑mentioned village. Shortly after that, she was married to Sarja son of the aforesaid Sardara, and the couple are said to have taken up residence permanently at a well owned by the family known as Chah Sayyalanwala about a mile outside the village. It is said that this was done in order that Mst. Rajan should be kept out of the way of her abductors, who belonged to the same village. About two and a half months later, on the morning of the 1st June 1956, a very powerful attack was made upon the sleeping inhabitants at the well. Bashir son of Mehra was shot dead, and to was Sarja, the newly‑married husband of Mst. Rajan. These bodies were found at the well, at the places where these persons had been sleeping, but a third body that of Muhammad Yar another son of Sardara was found lying in a field about 800 feet away from the well, and in this case death was due to wounds caused by sharp‑edged weapons. The prosecution case is that this attack was made just after dawn on the 1st June 1956, and that it was witnessed by Mst. Rajan who was sleeping at the well with her husband, by Sardara who was sitting on the driving seat of the Persian wheel at the well, and received two dang blows at the hands of one of the accused persons, by Parali, P. W. 13 a caste‑fellow of the com plainant, who was spending the night with Mehra, and had previously rendered substantial assistance in effecting the recovery of Mst. Rajan as well as by Mehra who was sleeping by the side of Parali in front of a threshing floor at the same well. In evidence, these witnesses deposed to the occurrence having taken place in the following manner. First, shots were fired at Bashir. (The post‑mortem examination of Bashir's body showed three separate entry wounds of bullets.) This noise attracted Sardar's attention, and he immediately saw that there were present at the well eleven intruders of whom Rehmat and Mathela were armed with guns, Umra, Mirza and Mahando with chhavis, Jallu with a takva, Amira and Shera with ballams, and Mehra and Nazira with sotas, all of whom were round Bashir's bed. The eleventh man was Ali with a dang, but Sardar's evidence is not free from doubt on this point. Sardara ran forward to save his nephew, whereupon Mehra gave him a dang blow on his head. At that stage, Sarja who with his wife had been sleeping on a kur (a low shed) at a short distance, woke up and asked the reason for the shooting. Thereupon Rehmat and Mathela fired once each at him and he fell down, and the two men along with Mahando climbed up on the roof of the kur where they each fired at Sarja once again, and Mahando gave him a chhavi blow. Three of the witnesses were perfectly clear that they saw with their own eyes Muhammad Ali (alias Mahando) giving a chhavi blow to Sarja on his neck, being incited to do so by Mathela saying that Sarja's head should be completely cut off. Mst. Rajan was not injured or molested in any way. The explanation is that when the first gunshots were heard, Sarja asked her to hide herself, and she quickly got down from the roof and hid herself in some saroot hedges close to the spot, from where she saw everything, including the assault on Sarja. After that was over, Muhammad Yar appeared at the well, and asked the reason for the slaughter, whereupon Mahando asked his companions not to spare this man and five of them namely Mirza, Umra, Jallu, Shera and Nazira pursued him, followed by the witnesses Mehra, Sardara and Parali. These witnesses saw the killing of Muhammad Yar after he had been overtaken. Shera and Jallu caught him by the legs and Nazira and Umra also helped to hold him down while Mirza gave him blow after blow with a chhavi until he died. After that the assailants escaped, using a couple of mares for the purpose. One of the three mares on which they had come to the spot was said by Mst. Rajan to have escaped and to have been brought back from a place known as Kot Mohabbat by the witness Parali. A report was made at the Police Station the same morning at thana Jalalpur Bhattian, three miles away at 5‑30 a.m. It was made by Sardara and mentioned the name of Nuri brother of Mathela as one of the eleven persons in the attacking party instead of Ali, who was tried along with the other ten. In fact, the names of Mathela and Nuri are the first names in the enumeration of the eleven accused persons contained in the initial report. The name of Nuri is the last name in the enumeration of the weapons carried. He was said to have a dang. There was a prompt investigation, and the bodies were duly examined. It was found that Muhammad Yar's principal injuries were five cut wounds, all in the region of the left ear, cutting through the left jaw and the left side of the neck. Bashir had two gunshot wounds on the right back, whose margins were blackened and charred, and through which the entering bullets had con verged so as to create a single wound of exit on the left side of the chest. There was also a gunshot wound on the left buttock through which the bullet had travelled as far as the right side of the back. Sarja's injuries were a gunshot entry wound on the back of the right shoulder and an exit wound through the top of the shoulder; two bullet wounds on the right side of the back of the neck, 1" apart, which had combined to produce a single exit wound on the right cheek, 5 " x 4" in size. In addition, eighteen small pellet wounds skin deep were found on the front of the right shoulder and right arm, besides a clean cut wound 3" in length on the right buttock. At the trial, the witnesses did not give the name of Nuri as one of the assailants, and Sardara who made the initial report explained that what he had said was that there was a man who looked like Nuri and not that the person was in fact Nuri. On the other hand, in the initial report, Nuri's name appears as the second in the list of eleven names and seems to have been mentioned with the same degree of confidence as any of the other ten names. Instead of Nuri, who is brother of Mathela, the witnesses have named Ali, a relative of Mathela from the same village, Atla Ghulam. Sardara, however, did not mention in his evidence any particular act by Ali. However, Mst. Rajan mentioned Ali as one of the persons who commenced the search for her after the shooting and who joined in the pursuit of Muhammad Yar; Parali mentioned Ali as one of those who "pressed Bashir and did not even permit him to struggle for life", but he said nothing about the search for Mst. Rajan, and he did not include Ali among the pursuers of Muhammad Yar. Mehra's statement was similar to that of Parali. The injuries on the persons of the three dead men indicate fairly clearly, the manner in which they were caused. In each case, they indicate minimum mobility on the part of the victims. All the five injuries, probably inflicted with a hatchet, which were received by Muhammad Yar are situated within an area of about twenty square inches, on the left side of his face. They give the impression of being inflicted upon a sleeping man, lying on his right side, rather than of having been inflicted after the man had run a distance of about 800 feet, and who, in order to prevent him from struggling while he was hacked to death, had to be held down by three persons while a fourth man held his head with a piece of cloth. It is easier to believe that the five wounds which are very close together were caused by say two or three persons standing on the two sides of a sleeping man and striking in rapid succession at a particular spot, namely the left side of the neck and the face, by prearrangement. The gunshot injuries on Bashir are admitted to have been caused while he was asleep, and they clearly give that impression, viz., that two or possibly three firearms were aimed at his right back, by persons standing up to him, at close range. The third shot on the left buttock may well have been fired when the body had turned over and possibly became contorted through the impact and internal shock of the bullets. There is nothing to show that Bashir was pressed down, and indeed the mention of this quite unnecessary act by persons who still had two other murders to commit, is entirely uncon vincing. The principal gunshot injuries on Sarja too are situated on the back of the right shoulder and the back of the right side of the neck, clearly pointing to an immobile target. Blackening of margins again appears, showing that the shots were fired at close quarters. These wounds were caused by bullets, but there was also a wound caused by a number of pellets which penetrated to no great depth on the front of the right shoulder, which might indicate a shot fired after the others. A cut wound appears on the buttock, and it is perfectly clear that this could not be accounted for by the evidence of the witnesses regarding the action of Mahando at the instigation of Mathela. The witnesses were clear that the excitement was to chop off Sarja's head and that Mahando complied. There is indeed a large wound on the right side of the neck, but the medical evidence clearly shows that this was caused by the emergence of two large bullets. There is one further aspect of the case which requires to be mentioned in some detail. It is connected with the abduction of Mst. Rajan who has given a very clear statement on the point. She said that she was abducted by Mahando accused with the aid of his brothers Nazira and Amira accused. These persons belong to village Thatha Abdur Rehman. Her abductors took her to village Kanni Madhora to the house of Shera and Jallu who are also accused in the present case. The same day, Amira aforesaid, took her to village Atla Ghulam to the house of Mathela also an accused person in this case, and after two days, Mathela took her to the house of Rehmat in village Jogiwala and Rehmat too is accused in this case. From Rehmat's house, she was recovered by her father, her uncle Sardara and the witness Parali. Even the person Ali of Atla Ghulam who appears to have been accused upon afterthought was involved in this abduction. Mst. Rajan in her statement was careful to say regarding each one of the eleven accused persons in the present case, including Ali that they "did not outrage my modesty nor did they copulate with me" and it was made clear by her father Mehra that in the course of the search for Mst. Rajan it was learnt at Kanni Madhora that "she had been sent to Mathela and Ali accused in village Atla Ghulam." Thus, the remarkable fact emerges that every person con cerned in the abduction of Mst. Rajan two months before the crime, was also concerned in the present case. The three accused persons, Umra, Mirza and Mehra who are not given any specific part in the abduction are cousins of Mahando, Nazira and Amira. The learned Judge of the High Court have unequivocally held that it had in their opinion "been established beyond reasonable doubt that the appellants came to this place to take away Mst. Rajan by force if necessary and started killing all those who could resist them in their attempt. The question arises immediately, as a matter of fundamental importance affecting the truth of the prosecution case and the credibility of the evidence how do persons like Shera, Jallu, Mathela, Ali and Rehmat, whose connection with the abduction of Mst. Rajan was so slight, (for they did no more than to comply with the request of her abductors to conceal her for a period, presumably until they could make more permanent arrangements for her custody) happen to be participants in these ghastly murders? To assist in keeping and passing on an abducted woman is reprehensible, and even criminal in some cases, but it does not provide such a bond of common interest between the abductors and accessories of this type as would lead the latter to join with the abductors in com mitting multiple murders by way of revenge for the abductors having failed in retaining possession of the girl. Against Mathela alone it is said that there is a blood feud between him and the complainant's party because some thirty years earlier, a cousin of Sardara had murdered Bahawala an uncle of Mathela. That too, came as an afterthought in a volunteered statement by the principal prosecution witness Sardara at the trial. Bearing in mind the difficulty of supposing any sort of common bond between the abductors who were from village Thatha Rehman and the five accessories to the abduction who were from three other villages, such as could make it reasonably possible that they would join together to kill a brother and two cousins of Mst. Rajan including her husband Sarja, out of chagrin at having lost possession of Mst. Rajan, the danger becomes apparent that in case the crime was not witnessed by any person, the enumeration of culprits was made on the basis of active participation in the earlier abduction. This lively factor of doubt does not appear to have received any consideration from the learned Judges in the High Court. It might be believed that the relations of the abductors might join with them to avenge their defeat in the manner suggested in the present case, but in the absence of more evidence to indicate a personal interest, such a belief in relation to the five persons from villages other than Thatha Rehman is clearly very difficult to entertain. Therefore, in approaching the question of the extent to which credence can be given to the eye‑witnesses in the present case the first and most important consideration to be borne in mind was that there might be false implication in the present case of persons who were known to have been involved in the abduction as accessories. It should be noted that while no pro ceedings had been started for the abduction of Mst. Rajan by her father, certain proceedings under section 107/151, Criminal Procedure Code had been started against four persons on each side by the Police. On the side of the complainants the persons arrested as an aid to maintaining the peace were Mehra, Sardara, Sarja deceased and Muhammad Yar deceased. On the other side the persons arrested were Mahando and his brother Nazira accused, and two persons Jewna and Gamman whose connection with Mahando is not made clear. It does not appear that there was any apprehension of breach of the peace by Shera, Jallu, Mathela, Ali or Rehmat, who, are accused in the present case. All the circumstances combine to create the impression that these five persons had no personal interest in the abduction, from which the natural inference is that they would not participate in a crime of the dreadful nature carried out on the night of 1st June 1956, by way of an attempt again to abduct Mst. Rajan. False enumeration of names in the list of accused persons, being a real possibility, a great deal of importance attaches to the substitution at the trial of the accused Ali for the man Nuri named in the initial report. It was assumed at the trial, although the evidence on the record is not sufficient for coming to a clear conclusion on this point, that at the time of the occurrence Nuri was actually in prison in Sheikhupura, a considerable distance away from the scene of the crime, and that this circumstance led to the variation introduced into the prosecution story on this point. Whatever the reason may be, it is undeniable that the suspicion of false enumeration of the names in the report is greatly heightened by this substitution of Ali for Nuri. The need for caution in accepting the evidence of the eye‑witnesses, all of them being closely connected inter se is magnified very greatly by the admittedly erroneous accusation of Nuri. The third circumstance which goes to support the possibility that the crime was not seen by any of the eye‑witnesses is that Mst. Rajan was neither searched for nor taken away. On this point, it is of interest to note that when questioned on the basis that it was dark when the attack was made and she was therefore unable to identify the culprits, Mst. Rajan made the following answer:‑ "As it was complete light at the time of these murders, I could very well identify all the eleven accused persons at that time. There could be no difficulty in their identification." This declaration cuts the prosecution case much more deeply than it cuts the defence. For, if Mst. Rajan could see the accused so clearly, then she, for whom they were looking, could be seen equally clearly by them, and there were eleven of them to notice her movements. From the admitted fact that the assailants crept up to within a short distance of Bashir and were able to fire at him as he slept from close quarters, it may be inferred with confidence that they had also observed where Sarja and Mst. Rajan were allegedly sleeping side by side. If Sarja's gunshot injuries, so strikingly similar to those of Bashir, were also caused in the same way i.e., while he slept, Mst. Rajan's account of being roused by the sound of the shots fired at Bashir, of her conversation with Sarja, and her successful flight into the bushes, must be wholly rejected, and the fact of her not being there takes shape, as the true explanation for her having escaped molestation altogether. The circumstance of "complete light" affects the account given of the murder of Muhammad Yar as well. It might be possible to believe that Muhammad Yar would have come towards the well, on hearing the sound of gunshots, provided it was dark and he could not from a distance make out what was happening. But if the light were as good as Mst. Rajan declared that it was, Muhammad Yar would have undoubtedly appreciated that by moving towards the well, he would be putting his life in danger. It is easier to believe that he vas hacked to death at the place where his body was found. Still another reason appears, in addition to those mentioned above, for grave suspicion whether the eye‑witnesses saw the occurrence at all. The proved fact that Sarja received no chhavi blow on his neck directly negatives the emphatic evidence of three of these eye‑witnesses that such a blow or blows were delivered by Mahando, at the instigation of Mathela, in order to cut off Sarja's head. It is evident that this part of the evidence is concocted, to suit the gaping gunshot wound in Sarja's neck, and it is likely that this special allegation was made against Mahando, because he is the man who abducted Mst. Rajan. The defence at the trial took up the plea that the state of the stomach of each of the dead men showed that they had eaten their last meals less than six hours earlier because semi‑digested food was found in the stomach. If the commission of the offence were placed at 4 a.m. that would mean that the last meal was eaten at 10 p.m. which is some three hours later than the ordinary time for an evening meal in villages. Therefore, it was urged that the offence was really committed at about midnight or say at 1 a.m., when Sardara could not have been working the Persian wheel and in addition, there was only starlight by which to identify the assailants. A question was thus raised touching the credibility of the entire story. The learned Judges in the High Court in dealing with the question of the inference to be founded upon the condition of the stomachs of the deceased persons declared that "it would be a pure conjecture to say whether they took their last meal at 7 p.m. or 10 p.m." and therefore the evidence of the eye‑witnesses could not be rejected on the mere ground that the attack took place earlier than 4 a. m. They examined the evidence of the eye‑witnesses individually, and came to the conclusion that all of them were present and had deposed to what they saw of the attack. As to Sardara they referred to his injuries and ‑said that in the absence of proof that they were caused by fall, it must be believed that they were caused by Mehra, that the suggestion that if he had been at the spot he would have been killed was unsound, and that it being his own well it was natural that he should be there. Regarding Mst Rajan also they felt that her presence by her husband's side was natural, and they also accepted her story that she escaped into the nearby bushes, without being noticed, and from there saw every thing without herself being seen. As regards Parali they noted that his name was in the initial report, and that this proved that he could not have been in his own village about six miles away at the time of the occurrence since the report was made very promptly. Discrepancies 4n the evidence regarding the length of his stay at the well on this occasion were thought by the learned Judge not to be "very material". They did .not notice Parali's connection with the recovery of Mst. Rajan after her abduction. As regards Mehra, they thought that it was natural that he was sleeping at this well, and that therefore his evidence was reliable. Their conclusion was that all the eye‑witnesses were on the spot and there was sufficient light of the dawn by which they could identify the culprits whose object was to abduct Mst. Rajan by force, if necessary. Yet, by way of greater precaution in selecting from among the eleven accused, those against whom the case was established most firmly, they relied upon the rule of "specific parts" viz., that only those to whom specific parts were attributed by the witnesses could be held beyond doubt to be guilty. They found that Mahando delivered the chhavi blow to Sarja on neck, that Mirza gave hatchet blows to Muhammad Yar, that Rehmat and Mathela fired the fatal shots at Bashir and Sarja and that Mehra gave a lathi blow to Sardara, and on the basis of these findings they concluded that the participation of these five persons "cannot be doubted for a single moment". As regards Mathela, who was not arrested until 20 days after the occurrence, some evidence had been produced that a gun was found in his house which was proved to be the gun from which a fired cartridge found on the spot had been fired. Some evidence had been given to this effect, which the learned Judges regarded as unsatisfactory, because no reasons were given for identifying the gun in this manner beyond reasonable doubt, and they therefore placed the case against Mathela on the same footing as that against the other five persons whose convictions they had confirmed. With reference to the false naming of Nuri they thought that it did not affect the truth of the case because it might be that Sardara did not identify the eleventh man and falsely named Nuri, or that Sardara might have intentionally implicated him falsely in the initial report. But, in the opinion of the learned Judges, this criticism did not apply to the statements of the other three witnesses Mist. Rajan, Parali and Mehra, who had nothing to do with the making of the initial report, and therefore the argument that all the witnesses had falsely implicated an innocent person was not tenable. The mode of appraisement of the evidence adopted by the learned Judges, while it might be appropriate in a case not affected by general doubts, was wholly unsuitable to the formation of a correct conclusion in a case of the present character. We have enumerated above, the circumstances which should have been borne in mind in appraising the evidence of these partisan witnesses, which circumstances we find not to have received any consideration, or due consideration at the hands of the learned Judges. The point that persons, who were only outside B accessories in the abduction, were not likely to join in the execution of the dreadful crime of murdering three persons, against whom they had no animus at all, has been entirely ignored. Appre ciation of the admittedly false implication of Nuri, brother of one of these outside accessories, namely, Mathela, could only be properly made in relation to the general doubt regarding the participation of these outsiders. In declaring that this false implication affected only the statement of Sardara, and accepting the evidence of the other witnesses, the learned Judges have overlooked the very important nature of .the impact upon the whole case of this clearly false implication of one innocent man. They have not noticed the near impossibility of accepting the story that Mst. Rajan was not observed at all by the assailants, when it was obvious that they were entirely unhampered in their movements prior to the firing of the first shots at Bashir, which was probably simultaneous with the firing at Sarja, coupled` with the strange admission of Mst. Rajan that it was "completely light" at the time. In holding that Mahando struck Sarja on the neck with his chhavi, the learned Judges have omitted to notice that the medical evidence completely contradicts the suggestion that any chhavi blow was delivered at Sarja's neck. If they had noticed this very important fact, they would have been bound to ask themselves further whether witnesses who said that before their very eyes such a blow was struck by Mahando and that Mahando was excited by Mathela to strike this blow, could be accepted as eye‑witnesses at all. In the face of such grave doubts affecting the entire prosecution evidence, the view that Sardara's slight injuries, which could easily have been caused by a fall, served as concrete proof that he was hit by Mehra is clearly insupportable. In our opinion, the approach of the learned Judges to the appraisement of the evidence of individual witnesses was not based upon a full comprehension of all the circumstances appearing in the case, from the making of the initial report, up to the recording of evidence at the trial. When the evidence of the eye‑witnesses is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the eleven persons accused in the case was based, not upon direct knowledge of their participation but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye‑witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence. In the result, we dismiss the appeal filed by Sardara against the acquittal of five of the accused persons, but allow the other two appeals and setting aside the convictions of Rehmat, Mathela, Mahando Mirza and Mehra, we direct that they be acquitted. A. H. Order accordingly.