1988 PLP 1436 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑This appeal by special leave is directed against the judgment and order of the Lahore High Court dated 29‑6‑1981 passed in Criminal Appeal No.216 of 1979, Criminal Revision No.450 of 1979 and Murder Reference No.77 of 1979 whereby 10 accused/ respondents namely (1) Muhammad Fazil, (2) Ghulam Hussain, (3) Fazal .Elahi, (4) Mehboob, (5) Muhammad Asghar, (6) Lehrasap, (7) Muhammad Khan, (8) Zammurrad, (9) Mahmood and (10) Abdul Sattar were acquitted of all the charges under sections 452 and 307, read with 149 and 302 read with 1‑I9 and 148, P.P.C., and, consequently, Criminal Appeal 216 of 1979 filed against their conviction and sentence was accepted. Murder Reference No.77 of 1979 was answered in the negative and Criminal Revision No.450 of 1979 against the acquittal of the other 11 accused by the learned trial Court was rejected. Appellant had filed petition for leave to appeal against. the impugned judgment and leave was granted per order of this Court dated 7‑5‑1984 as against above‑named 10 accused/ respondents, while leave in respect of the other 11 accused, namely, (1) Muhammad Ashraf son of Gulab, (2) Abdul Khaliq, (3) Muhammad Aslam, (4) Muhammad Nawaz, (5) Ghulam Rabbani, (6) Muhammad lqbal son of Tora, (7) Raja Khan, (8) Muhammad Ashraf son of Sher, (9) Muhammad Iqbal son of Fazal, (10) Allah Ditta and (11) Fazal Hussain, acquitted by the two Courts below was refused. (2). In nutshell the prosecution case is that on 5‑7‑1975 at about 10 a.m. Muhammad Ashraf P.W.11, alongwith his brother Muhammad Afsar deceased, was sitting in the house of his brother‑in‑law Allah Ditta when their attention was drawn by an uproar and in order to ascertain the reason for it, they ascended the roof of the house of Allah Ditta and saw that Allah Bakhsh PW.14 was already standing on the roof of his house. Ashiq Hussain PW.17 Bagh Hussain PW.12 were also standing on the roof of the house of Bagh Hussain. All the accused, armed with various arms like rifle, guns, revolvers, hatchets, Barchhis and Dangs attacked the house of Altaf Hussain. In their view, Altaf Hussain deceased rushed to the roof of his house to save his life; Fazal Elahi and Ghulam Hussain accused followed him and both of them fired one shot each at Altaf who was hit and fell down. The other accused also climbed over the roof of the house of Altaf deceased. Muhammad Afsar deceased, who happened to be there, entreated the accused to refrain from further assault whereupon Muhammad Fazil accused fired at Muhamad Afsar with sten‑gun which hit him on the left side of his chest, then Mehboob accused fired with his revolver at Muhammad Afsar deceased effectively. Muhammad Hussain PW. brother of Afsar deceased came there and took his injured brother Muhammad Afsar to the house of Allah Ditta. Muhammad Hussain PW. 13 and Ahmad Hussain, brothers of Muhammad Afsar deceased came to the roof of their house to take down Altaf Hussain when four accused namely Muhammad Khan Asghar, Abdul Sattar and Lehrasap fired at them and wounded them. Bagh Hussain and Ashiq Hussain PWs were fired at by Zammurrad and Mahmood accused from the roof of the house of Sajawal Khan, and were injured. After that the accused started indiscriminate firing resulting in injuries to Mst. Rahmat Bibi PW 15, Mst. Fatima Bibi PW 16, Mst. Parveen, Mazhar Hussain and Mazloom Akhtar. Thereafter Mehboob Hussain accused threw a hand‑grenade on the roof of the house of Irshad Hussain PW 3 which exploded and damaged the roof. Thereafter all the accused fled away. When all was quiet, it was found that Muhammad Afsar had died in the. house of Allah Ditta while Altaf Hussain died in his house. Muhammad Ashraf PW.11 lodged the report Ex. PA at 2.30 p. m.

3. Motive for the offence, committed by the accused, as stated in the F.I.R., is that there was party faction in the village Kak. One party was led by Altaf Hussain deceased and the other by Ghulam Rabbani accused; that earlier in 1971 a fight between Altaf Hussain and Ghulam Rabbani had taken place and a case was registered with the police. It is stated that civil litigation was also going on between the parties. The sister of Mehboob accused namely Mst. Fazal Noor was married to Manzoor Hussain PW 13 brother of Altaf Hussain deceased, and was divorced sometime prior to the present occurrence. Due to all these frictions, the parties were at daggers drawn with each other. The immediate motive for the crime is stated to be that Sakhawat Hussain son of Ashiq Hussain P.W.17 was driving back his cattle from Bela; the cattle had gone astray in the groundnuts crop field of Fazal Hussain son of Muhammad Ibrahim, due to which Fazal Hussain abused and slapped Sakhawat Hussain who informed his father Ashiq Hussain PW.17 about this incident. The latter went to the house of Fazal Hussain to complain against this. Fazal Hussain, Allah Ditta, Mehboob and Zammurrad were present there and a verbal altercation took place between them.

4. Dr. Muhammad Aslam Arshad PW 9 examined Bagh Hussain PW.12 and found three firearm injuries on his thighs. The same doctor examined Mst. Fatima Bibi PW.16 and found three firearm injuries caused by pellets on her thighs and front of right leg. Dr. Arshad also examined Manzoor Hussain PW 13 and found multiple firearm injuries caused by pellets on his chest, elbow, thighs. knees, ankle and temple. The same day he examined Ahmad Hussain PW and found multiple firearm injuries caused by pellets on his left temple, right eye, left wrist and left thigh. The same doctor also examined Mazhar Hussain PW and found multiple firearm wounds caused by pellets on his chest, shoulder and thigh. Dr. Aslam Arshad then examined Ashiq Hussain PW 17 and found multiple firearm wounds caused by pellets on different parts of his body. On 6‑7‑75 Dr. Arshad examined Mst. Rahmat Bibi PW.15 and found an oval wound of impact of bullet or pellet on her leg and 10 circular wounds of impact and entrance of pellets. The same day he examined Mst. Parveen Akhtar and found two firearm injuries caused by pellets just above her left clavicle, shoulder and chest. Dr. Arshad PW.9 then examined Mst. Mazloom Akhtar and found an abraded contusion on her index finger, lacerated wound on right thumb and a contusion on the pulp of right thumb, caused by blunt weapon. The doctor also examined Mst. Jameela and found entrance wound of pellet on right leg, an abrasion of impact of pellets on the third junction of right leg, another abrasion of impact of pellet on inner side of right leg, caused by firearm. The same doctor performed the post‑mortem examination on the dead body of Altaf Hussain deceased and found 10 firearm injuries. In the doctor's opinion death was caused due to shock and haemorrhage caused by injury No. (vi) a circular wound of entrance 1/2" x 1/2" on front of right chest with a corresponding wound of exit 1/3" x 1/2" in the right axilla which he found to be sufficient to cause the death of the deceased in the ordinary course of nature. He also performed the post‑mortem examination on the dead body of Muhammad Afsar deceased and found 4 firearm wounds. Death was due to shock and haemorrhage caused by injuries (i) a circular wound of entrance 1/4" x 1/4" on front of left chest 2‑1/2 from nipple, and (ii) an oval wound of entrance 3/4 x 1/2 on outer side of left chest 4" from nipple with 2 corresponding wounds of exit 1/4 x 1/3 each on back of left chest near lower angle of scapula 3" apart. The same doctor also examined Lehrasab Khan and found a wound of entrance 1/4 x 1/4 on back of right leg with blackening and burning around the skin and edges of wounds of entrance; a bullet was pulpable on inner side of leg; and an abraded contusion 2j;" x 3/4" on back of right forearm near wrist. Injury (i) was caused by firearm while injury (ii) was caused by blunt means: The doctor also examined Mehboob Hussain and found a circular wound of entrance 1/4" x 1"on inner side of right upper arm, and bullet was pulpable slightly at lower level at 2" distance and an oval abrasion 1/4" x 1/2" on inner side of right upper arm. Skin around the wound and abrasion and edges of wound of entrance were blackened. On a query by the police the doctor stated in his report EX.PA/A that injuries of Mehboob Hussain could be self‑inflicted.

5. The ocular evidence in the case consists of the statements of Muhammad Ashraf PW. 11, the first informant; Bagh Hussain PW. 12, Manzoor Hussain PW. 13, Allah Bakhsh PW. 14, Mst. Rahmat Bibi PW.15, Mst. Fatma Bibi PW. 16 and Ashiq Hussain PW 17.

6. On going through the record, we find that the learned trial. Judge has observed in his judgment dated 1‑2‑1979 as follows: "All the eye‑witnesses were subjected to lengthy and gruelling cross‑examination spreading over so many pages, but the learned defence counsel failed to shatter them and to get anything favourable to the accused. There is no material or serious discrepancy in the statements of these PWs. particularly as far as the injuries on the persons of both the deceased are concerned. As far as the factual position is concerned this is an admitted fact that all the eye‑witnesses are related inter se and to both the deceased.. It is a rule of prudence that the statement of an interested witness should be taken into consideration carefully and consciously. Every case has its own peculiar circumstances and the statement of an interested witness would be analysed in the light of those circumstances. There is no such law that the statement of an interested witness should be thrown out ‑outright and should not be relied upon in any case. In the instant case, admittedly there are two parties in the village. Both the parties are at daggers drawn and their enmity is deep rooted. Under these circumstances, no natural person will be ready to involve himself in the party faction and to have the animosity of one faction. Moreover, the statements of the eye‑witnesses have been corroborated by the following facts: (i) Motive, (ii) Medical evidence, (iii) Injuries of the PWs, (iv) These PWs are also natural witnesses. They are the residents of the houses where the occurrence took place, (v) Alleged injuries of the 2 accused, (vi) Last but not least‑ there is no doubt and dispute about the occurrence. The accused do not deny the incident. They conceded that Lehrasab fired 2/3 shots in self‑defence. Under these circumstances it is fairly clear that firstly, the statements of the eye‑witnesses cannot be discarded simply due to the reason that they are interested witnesses. Secondly, the statements of these witnesses have been corroborated by the aforesaid facts."

7. The learned trial Court has also dealt fairly with the objections regarding the delay in lodging the report, non‑production of all the witnesses, and the right of self‑defence accruing to the accused Lahrasap and Mahboob who were found injured.

8. The learned High Court Judges, while dealing with the matters before them, declined to accept the immediate motive leading to the death of two persons, and injuries to a large number of persons on the complainant side, on the ground that it was the complainant party who‑ was aggrieved over the beating of Sakhawat Hussain PW.7 and insulting his father Ashiq Hussain P.W.17 when he went to lodge a complaint over the incident, with the accused party, and, the learned Judges observed as follows:‑ "We are inclined to accept this argument of the learned counsel for the appellants, and we are of the view that the present occurrence which, of course, had taken place in which two persons lost their lives and many others injured, was the result of some other incident, which in not on file. It will have to be analysed as to how the occurrence started." We found no such analysis by the learned Judges in the impugned judgment there or elsewhere, and therefore, the judgment suffers from this infirmity as well.

9. The learned High Court Judges also examined the medical evidence and found it in conflict with the ocular testimony for the reason that the doctor found blackening and burning of edges of all wounds of entrance on the body of Muhammad Afsar deceased, and the distance from which the appellants were alleged to have fired at Muhammad Afsar is shown to be about 20 feet whereas the doctor, on a query by the police, stated that. blackening and burning of edges of the wounds is possible from a distance of 20 feet. This, the learned Judges found obviously incorrect as the charring range is usually 3 to 6 feet depending upon the type of fire‑arm used. We find that the doctor had made no entry against each of the wounds recorded in the post‑mortem report of Muhammad Afsar deceased, but later on, by one consolidated statement he stated "there was blackening and burning of the edges of al, wounds of entrance". In the same sequence, dealing with the injuries on the accused /appellant Lehrasap, the learned Judges observed that the doctor has failed to substantiate his opinion by quoting any authority on medical jurisprudence to the effect that the injuries found on the persons of Lehrasap and Mehboob accused were self‑inflicted. The learned Judges observed as under: "The doctor failed to take into account that injury No‑2 on the person of Mehboob appellant bore blackening and burning around the wound of entrance. Naturally this injury must have been received from a close range and it is impossible to believe that anybody would take the risk of getting himself shot from such a close range. According to the learned counsel for the appellants the corroborative value of the medical evidence in such circumstances cannot be treated as untainted."

10. The learned High Court Judges, while commenting on the ocular evidence, held that the repetition of facts by the eye‑witnesses is just parrot‑like where all the accused have been given the precise roles in the commission of offence: that the women‑folk of the house, received injuries by stray bullets and pellets and the manner in which the occurrence is reported to have taken place, leaves no doubt in the mind of anybody that it would not have been possible for every witness to have seen the infliction of injuries exactly in the same manner as one witness could see, and, therefore, if the witnesses, apart from Muhammad Ashraf PW 11, are making statements wherein they have supported him word by word, it can be safely argued that without having regard to the real and actual happenings at the spot, they have extended full support in Court to the statement of complainant Muhammad Ashraf PW 11.

11. We have examined the observations made by the learned trial Court as well as by the learned Judges of the High Court and we are of the view that the appraisal of evidence made by the learned trial Court is more convincing, and nearer to correct reading of the evidence. All the ocular witnesses have supported the prosecution case, and as observed by the learned trial Court, they were subjected to lengthy, and searching cross‑examination but no vital contradiction had been brought out on the record. this fact would rather speak for the truthfulness of the eye‑witnesses' account and reliability, instead of discarding their testimony. Each of the witnesses was examined lay the police and his subsequent testimony at the trial does not show any prevarication between the earlier statements recorded under section 161, Cr.P.C. and subsequently at the trial.

12. The medical evidence also is, in no manner, in conflict with the ocular testimony. The injuries on the person of Muhammad Afsar deceased were caused from a distance while the doctor has shown his ignorance regarding the effective charring range. He has also not been able to show as to the nature of injuries which have been found in scattered position because of the distance and at the same time having charring and blackening of the wounds. This creates a very strong doubt regarding the correctness of the statement of Dr. Muhammad Aslam Arsliad P.W.9. The injuries on the persons of accused Lehrasap and Mehboob, as shown by the doctor, had blackening and burning yet the bullets were found pulpable in the wounds, and strangely enough, he failed to extract the bullets. Had the injury been caused from a close range, the bullets would have passed through the wounds making an exit corresponding to the entrance wound which is not so in the instant case. This rightly leads to the conclusion that these injuries were self‑inflicted. The doctor also observed that there were no corresponding holes in the shirt of Mehboob or on the trousers of Lehrasap.

13. Having considered the case as fully as is possible, the judgment of the learned Additional Sessions Judge, and the evidence upon which that judgment is based we are unable to come to the conclusion that there is any material matter which the learned Additional Session s Judge has either failed to consider or in considering which he has arrived at a conclusion which upon the evidence, could properly be interfered with by the appellate Court. .

14. We may add here that in the Leave granting order dated 7‑5‑1984, leave was refused by this Court in respect of the 11 acquitted accused on the ground that both the Courts have not held them guilty of the murder of the two deceased or of attempted murder of the PWs in this case and for which they have given cogent and plausible reasons. We also observed that some of the accused have been attributed no role in the commission of the offences and some of them namely Muhammad Aslam has been assigned a Barchhi, Muhammad Iqbal ‑son of Fazal Elahi is stated to be armed with Dang, Raja Khan is said to have a Kulhari, Allah Ditta was also assigned a Dang and so is Fazal Hussain son of Ibrahim, and, there being no injuries caused by sharp‑edged weapon either on the bodies of the two deceased or on the injured *eye‑witnesses, it is reasonable to infer that they had actually not participated in the commission of the offence they are charged with. The other, amongst the acquitted accused, namely Abdul Khaliq, Muhammad Nawaz, Ghulam Rabbani and Muhammad Iqbal son of Tora and ‑Abdul Sattar were attributed firing with pistols. The learned trial Court made the following observation regarding the acquitted accused: "As far as the remaining accused namely Muhammad Ashraf son of Gulab, Muhammad Nawaz, Ghulam Rabbani, Muhammad Iqbal, Abdul Khaliq, Raja Khan, Muhammad Ashraf son of Sher Muhammad, Muhammad Aslam, Muhammad Iqbal, Allah Ditta and Fazal‑Hussain are concerned, I give them the benefit of doubt and acquit then from the charges framed against them, because no specific role was attributed to, the accused namely Raja Khan. Muhammad 4shraf son of Sher Muhammad, Muhammad Aslam, Iqbal, Allah Ditta and Fazal Hussain, and there is allegation of general type against the remaining five accused."' Against their order of acquittal the learned High Court also refused to interfere with the finding of the learned trial Court and acquitted also the convicted ten accused vide the impugned judgment. With this finding in view of the two Courts below, we had declined to grant leave in respect of these accused vide the Leave granting order dated 7‑5‑1984.

15. Regarding the remaining accused the learned trial Court observed that there was a consistent charge against them regarding their participation in the crime and causing the deaths of two persons and injuries to the eye‑witnesses. As regards the quantum of sentence the learned trial Court observed as follows: "The next question arises about the quantum of sentences to be awarded to the accused, who have been found guilty. All the ten accused namely Muhammad Fazil, Muhammad Asghar, Lehrasap, Ghulam Hussain, Fazal Elahi, Muhammad Khan, Mehboob, Zamurrad, Mehmood and Abdul Sattar are convicted under section 148, P.P.C. and are sentenced to undergo one year R.I. each." Under section 302/149, P.P.C. Muhammad Fazil, Mehboob. Ghulam Hussain and Fazal Elahi were awarded death sentence, while Muhammad Khan, Lehrasap, Abdul Sattar, Asghar, Zammurrad and Mahmood were sentenced to life imprisonment and fine of Rs.5,000 each vide judgment dated 1‑2‑1979 of learned Additional .Sessions Judge, Rawalpindi.

16. Learned counsel for the appellants vehemently argued that this Court would refrain from re‑appraisal of the evidence which has been properly weighed by the High Court before giving its finding which is neither perverse nor against the weight of evidence on the record. This argument is not tenable. We would like to refer to Noora and Shera v. The State P L D 1973 SC

469. The judgment is delivered by the then Chief Justice late Hamoodur Rahman, regarding disagreement on the question as to whether the order and sentence passed by a High Court in a Criminal matter could not be interfered with by the Supreme Court by a process of re‑hearing the case"' was settled after tracing the. history of the exercise of criminal jurisdiction by the Supreme Court. Regarding the powers of the Supreme Court in criminal appeals, the learned Chief Justice referred to Siraj Din v. Kala P L D 1964 S C 26 wherein it was held that in a case of this nature the Supreme Court should be "satisfied" and ‑Afsar Khan v. The State P L D 1964 S C 205 wherein leave to appeal was granted "to re‑examine the whole evidence" in order to check "the correctness of the view taken by the High Court". Similarly, in Syed Riaz Haider Zaidi v. The State P L D 1965 S C 179 leave was granted to re‑examine the evidence to see "if chances of false implication have been adequately excluded"; and in Ghulam Haider v. The State P L D 1965 S' C 196 Cornelius, C J actually went through the entire record and re‑assessed the evidence because, the High Court had not examined the same with regard to the manner in which the clash came about between the two rival parties, who had come prepared for a fight. After such exhaustive re‑assessment of the evidence, he came to the conclusion that the High Court had wrongly applied the provisions of section 149 of the Pakistan Penal Code in the facts and circumstances of this case, and failed to give "proper weight to the evidence regarding the injuries suffered by each side. In the same judgment, Hamoodur Rahman, CJ observed as follows: "In my view, once this Court has come to the conclusion that the findings of the Court appealed from cannot be maintained, then it should have all the powers of that Court and should be in a position to do all that the Court appealed from, could do in the circumstances. This in my humble opinion, is the true scope and nature of the powers of this Court in a criminal appeal, whether it be an appeal as of right or an appeal by special leave, that has consistently been followed by this Court even since 1956. Having thus determined the scope of my functions as a Judge 'of this Court, I now proceed to examine the evidence in the case before me, as stated in the leave granting order "to ensure the safe dispensation of justice." Now coming to the question of‑ sentence, and deep examination of the evidence on the record, we find that the accused and the complainant parties both had deep‑rooted grievances against each other and at the time of occurrence the accused ascended roofs of their houses to attack; the complainant party also suspecting an attack climbed their roofs to retaliate or to defend themselves and inmates of their houses. Some cartridges were found around the scene of occurrence on the roofs which had gone unexplained as to who had actually fired these cartridges. In the circumstances of this case, therefore, in our view, the accused who have been condemned to death namely Muhammad Fazal Mehboob, Ghulam Hussain and Fazal Elahi should be treated at par with the other four convicted accused who were equally involved in the assault. It would be difficult to hold as to which of the accused made effective use of his weapon against the two deceased and the PWs. Therefore, life imprisonment instead of death sentence, in case of the above‑named four condemned accused, would meet the ends of justice. However, their conviction is maintained on all other counts but the death sentence awarded to them is altered to imprisonment for life with additional fine of rupees twenty thousand, on each count, or in default, 5 years' R.I. each. In these terms this appeal is allowed. M. I./M‑465/S Order accordingly.