P L D 1988 Supreme Court 274 (PLP)

NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the judgment of a Division Bench of the Lahore High Court dated 1‑10‑1985 passed in Murder Reference No.78 of 1981 and Criminal Appeal No.197 of 1981. The facts, which form the background, are that the first 15 respondents were tried by the Additional Sessions Judge, Sargodha, for the murder of Muhammad Yar and Muhammad Amir in an occurrence which took place on 14th October, 1979, at about 10.30 a.m. in the area of Gobindpura, Mandi Bhalwal, District Sargodha. Besides the two deceased, who died in the occurrence, Muhammad Akbar, Muhammad Shafi and Muhammad Sher were also injured and appeared as witnesses at the trial. The respondents were also charged for having attempted their murder under section 307/149 P.P.C. The trial Court accepting the ocular testimony of the aforesaid injured witnesses supported by motive and recoveries of incriminating articles at the instance of the some of the accused, convicted the first six respondents. However, the remaining nine respondents were given the benefit of doubt and were acquitted. Respondents Muhammad Khan, Nazra and Akbar were sentenced to death in addition to fine and imprisonment in lieu thereof. Respondents Akbar, Jeeba, Usman, Umra and Nazra were awarded the sentence of imprisonment for life and fine or in lieu thereof further sentence of imprisonment. Similarly, various terms of imprisonment were awarded to each of the individual respondents in addition to fine for making murderous assault on Muhammad Shaft and for causing hurt to Muhammad Akbar and Muhammad Sher (P.Ws.). The case of the convicted respondents came up before a Division Bench of the Lahore High Court on reference for confirmation of death sentences and on appeal filed by the aforesaid six convicts. By judgment dated 1st October, 1985, the Division Bench of the High Court accepted the appeal of the aforesaid six convicts, set aside their convictions and sentences and acquitted them of the charges mainly on the ground that the eye‑witnesses being interested, their testimony could only be accepted if it was corroborated by some independent evidence, which was lacking. In the result, the death sentences were also not confirmed. Complainant Muhammad Akbar moved a petition in this Court to call in question the acquittal of all the first 15 respondents and prayed for leave to appeal from the judgment of the High Court. It was pointed out on his behalf that the ocular version was furnished by the three injured witnesses including Muhammad Akbar, complainant who was the nephew of the two deceased; while the other two, namely, Muhammad Shaft and Muhammad Sher were the real brothers of the deceased; that they had received injuries during the occurrence, a fact duly corroborated by the medical evidence and that, therefore, their presence at the scene of occurrence was beyond question; that the High Court had erroneously rejected their testimony on the ground that they could not be relied upon without corroboration, as they were inimical and interested witnesses. The reason for considering them to be inimical and interested witnesses by the High Court was that about 11 years prior to the occurrence, respondent Muhammad Khan had exchanged some land with the step brother of the two deceased, over which there was some dispute between them and that in this connection about six months prior to the occurrence Muhammad Khan (respondent No.l herein) was inflicted injuries by the two deceased and a case was registered at his instance against them as well as Muhammad Shaft (P.W) and one Muhammad, Aslam. However, the police finally challaned Muhammad Amir deceased and Muhammad Shafi which case was still pending at the time of the occurrence. On the other hand, this was the very circumstance according to the prosecution ~vhich was the motive for the attack on the deceased and their companions. The case of the prosecution was that as a reprisal for the injuries suffered by Muhammad Khan, the accused attacked Muhammad Amir, Muhammad Yar and the P.Ws. accompanying them wherein the former two were done to death while the persons accompanying them sustained injuries. This was, therefore, not a case of interested and inimical persons coming forward to bolster the case of the prosecution to avenge their kinsmen but a case where the relations and associates of the deceased were also attacked and some were killed while the rest survived to tell the tale. In these circumstances, the testimony of the three eye‑witnesses could not be rejected outright on the ground of being the evidence of interested and inimical witnesses. Moreover, it was pointed out that the complainant Muhammad Akbar P.W. , in any case, had no direct hostility or enmity towards the accused persons and, therefore, his testimony did not suffer from any such taint. Leave was, accordingly, granted by this Court for reconsidering the matter with a view to determining whether the High Court was justified in acquitting the first six respondents in the circumstances of the case. Leave, however, was refused so far as respondents Nos.7 to 15 were concerned because they already stood acquitted by the trial Court and no appeal against their acquittal was filed before the High Court, by the State. We have heard Mr. Aftab Farrukh on behalf of the appellant and Raja Muhammad Anwar on behalf of the acquitted respondents. Ch. Ghulam Ahmad, learned Advocate for the State has also been heard. He has supported the stand‑point of the appellant and joined in his prayer for the reversal of the judgment of the High Court. The learned Judges of the High Court while accepting the appeal of the first six respondents observed:‑ "The prosecution case rests on the evidence of Akbar P.W.9, M‑uhammad Shafi P.W.10 and Muhammad Sher P.W.11 who furnished the ocular account . . . . . . . .. . . . . .. .. . Muhammad Afzal P.W.8 and S. I. Muhammad Mumtaz P.W.15 proved the recoveries from the appellants." The trial Court, according to the High Court, had based the conviction of respondents Nos.l to 6 mainly on the ocular account furnished by. the injured witnesses considering that the same was adequately corroborated by the recovery of the weapons of the offence from respondents Nos.l to .6 herein. ‑But, as according to the High Court, all the injured P.Ws. were interested and inimical :witnesses, corroboration from independent sources was necessary and that the corroborative evidence, in. the ‑shape of the recoveries of the weapons from the respondents did not provide the necessary corroboration. In this connection, the High Court observed that Muhammad Afzal, P.W.8, who testified to the recoveries was the real brother of the complainant. He lived at g distance of _8/9 miles from the place where the recoveries were affected and although there were several persons who lived in houses close to the dera of Muhammad Khan (respondent No.l) none of them had come forward to witness the recoveries. Besides them, the High Court further observed, that there were two Lambardars of the village but they too were also not summoned by the police to witness the recoveries; furthermore although the recoveries were made at different times and different places, Muhammad Afzal P.W. was always the person to witness the recoveries on every occasion. The recoveries of the lathis at the instance of Usman and Muhammad Akbar also suffered ‑Trom a further weakness, namely, that they were lying in the open. We have gone through the evidence on the record and taken note of all the attendant circumstances. In our ,view, no rigid or inflexible rule can be laid down with regard to the kind of evidence that must be produced for establishing the guilt of the accused in a criminal case. A finding on such a question must perforce depend upon the nature of the crime and the manner in which it is committed warranting a careful evaluation of the evidence led at the trial in the background of the circumstances and special features of the particular case. If the Court upon doing so is satisfied that it can, in all the circumstances of the case before it, prudently act upon' the supposition that the accused therein cannot but be guilty of the offence laid against him it would be justified in so holding and convicting him of the offence of which he is accused. Coming to the present case there is absolutely no doubt that the three injured witnesses were present at the spot and suffered serious injuries. The tragic incident had taken place shortly after the conclusion of the hearing of the case wherein Muhammad Yar and Muhammad Amir deceased alongwith Muhammad Akbar complainant P.W.9, Muhammad Shafi, P.W.10 & Muhammad Sher P.W.11 were returning to their houses after attending the Court of the Magistrate at Bhalwal but were confronted at the place of the occurrence by the 1 assailants including Muhammad Khan respondent and his companions and suffered serious injuries at their hands. They were, in the circumstances of this case, not only the natural witnesses of the incident but the best possible witnesses who could depose about it. Again, the F.I.R. was lodged within half an hour of the incident minimising the chances of consultations and the implication of the innocent persons. No doubt, some of the persons named in the F.I.R. were acquitted by the learned trial Court but this was done as a measure of abundant caution for safe dispensation of justice and in furtherance of this end only those accused at whose instance recoveries of the lathis wielded during the occurrence were recovered were held to be guilty and .the rest given the benefit of doubt. The High Court disbelieved the recoveries on the ground that Muhammad Afzal, P.W.8, the witness of the recovery, was an interested witness. However, the learned Judges have totally overlooked the circumstance that the other witness of the recovery, namely, Muhammad Mumtaz, P:W.15 (S.I) had absolutely no motive to falsely depose against the accused .and, in fact, had acted very fairly throughout the investigation and had, in fact, opined that one of the persons included by the complainant party amongst the accused was innocent. Thus, the recoveries made in his presence could safely be relied upon even if the testimony of Muhammad Afzal, P.W.8, the otherl recovery witness, was suspect. We, therefore, feel that the judgment of the High Court is untenable and cannot be sustained failing as it does to take into account the special features of this case and overlooks the important testimony of Muhammad Mumtaz, S.I. (P.W.15). On the other hand, 1 in our opinion, the judgment of the learned trial Court finding the first six respondents to be guilty was quite in accord with the principles governing the safe dispensation of justice in criminal cases. Accordingly, the judgment of the High Court is liable to be set aside and that of the trial Court convicting the first six respondents under section 302 P.P.C. restored. However, we feel that in all circumstances, the sentence of the death imposed upon Muhammad Khan, respondent No.l, Muhammad Akbar, respondent No.2 and Nazra. respondent No.6, requires modification. It will be observed that Muhammad Yar had been given a beating by some members of the complainant party, including Muhammad Amir deceased and they were being tried under. Section 307 P.P.C. in that connection. Indeed, the said case was fixed for hearing before the learned Magistrate on the date of the occurrence. The respondents feeling frustrated on account of the lack of any punishment being awarded to Amir deceased and others at the said trial appear to have decided to avenge the hurt caused to them and getting even with other side by giving them a sound thrashing themselves. Undoubtedly, they could not take the law into their own hands but we think that in the special circumstances of this case viewed in the above background, the ends of justice will ~e .met if instead of imposing the death penalty on respondents Muhammad Khan, Muhammad Akbar and Nazra they are awarded the lesser penalty of imprisonment for life. Accordingly, while restoring the order and judgment of the learned trial Court we would modify the sentence to be imposed on Muhammad Khan, Muhammad Akbar and Nazra and we order that the respondents shall stand convicted and sentenced as follows:‑ (1) For the murder of Muhammad Yar 302/149 P.P.C. Muhammad Khan to life imprisonment and a fine of Rs.5,000 or in default two years R.I. Fine, if realised, be paid to the heirs of the deceased. Akbar, Jeeba_, Usman, Umra & Nazra Imprisonment for life and a fine of Rs.2,000 each or in default one year R.I. . each. Entire fine to heirs of the deceased. (2) For the murder of Muhammad Amir. . 302/149 P.P.C. Nazra and Akbar: Life imprisonment and fine of Rs.2,000 each or in default one year R.I. each. Fine, if realised,be paid to the heirs of the deceased. Muhammad Khan: Imprisonment for life and a fine of Rs.5,000 or in d au t 'two.years R.I. Fine is realised, be paid to the heirs of the deceased. Jeeba, Usman and Umra: Imprisonment for life and a fine of Rs.2,000 each, in default one year R.I. each Entire fine as compensation to the heirs of the deceased. (3) For murderous assault on Muhammad Shafi, P.W.10. 307/149 P.P.C. Muhammad Khan: 7 years R.I. and a fine of Rs.5,000 in default two years R.I. Fine, if realised, be paid to the injured P.W. Akbar, Jeeba, Usman, Umra & Nazra 7 years R.I. and a fine of Rs.1,000 each in default one year R.I. each. Entire fine as compensation to Muhammad Shafi P.W. (4) For causing hurt to Muhammad Akbar P.W.10 and Muhammad Sher, P.W.11. 323/149 P.P.C. Muhammad Khan: One year R.I. and a fine of Rs.500 or in de au t 3 months R.I. on each count. Fine, if realised, be paid to the injured P.Ws. Akbar, Jeeba, Usman, Umra and Nazra One year R.I and a fine of Rs.500 each or in default three months R.I. each. on each count. Fine, if 'realised, be paid to the injured P.Ws. (5) 148 P. P. C . All the above mentioned six respondents to two years' R.I. each. The sentences passed on the respondents shall, however, run concurrently. We may, in passing, mention that this Court while granting leave to appeal in respect of the first six respondents, by its order dated 4‑5‑1986, had also directed the issuance of non‑bailable warrants against them. All the aforesaid six respondents had moved a miscellaneous application (Cr.M.P.No.11‑R of 1987) praying for grant of bail but this prayer was refused by this Court vide its order dated 4‑3‑1987. All the aforesaid respondents were, thereafter, arrested except Usman respondent who is absconding. However, being fully aware of the pendency of the present proceedings against him the appeal, as against him, can also proceed. The learned counsel for the respondents, who had applied for bail on his behalf alongwith the other five respondents, also agrees. The overall result is that this appeal succeeds in the main and is allowed in the terms above stated. M.B.A. /M‑408/S Appeal allowed.