P L D 1958 (W (PLP)

MUHAMMAD SHAFI, J.‑Ghulam Isa (P. W. 3), who originally belonged to Roda village, in Mianwali District, had some time ago settled down along with his family in Dera Sher Khan. His son, Muhammad Ishaq, aged about 20 years developed an intimacy with Mst. Bhag Bhari, a sister of Muhammad Khan, aged about 22 years, and Ahmad Khan, aged about 30 years, sons of Sher Khan, of Wata Khel village, also residing in Dera Sher Khan, presumably known after their father's name, Ghulam Isa (P. W. 3) fearing dire consequences as a natural result of this intimacy, returned to his home village Roda two or two and a half miles away along with his son and the other members of his family and started cultivating the'land of .one Sherbaz. On the other side, Mst. Bhag Bhari was promptly married to one Alam Khan, of village Zalo, which is unfortunately situated quite close to Roda village. It appears that the two brothers of Mst. Bhag Bhari continued receiving news that the love affairs between the two lovers was still going on. According to the ocular prosecution evidence, Ghulam Isa (P. W. 3), his paternal aunt's son, Noor Muhammad (P. W. 5), and Muhammad Zaman (P. W. 4) along with Muhammad Ishaq, had gone to the field of Sherbaz which was being cultivated by Ghulam Isa (P. W. 3) on the morning of 16th of April 1957, in order to reap wheat. It was the month of fast, but Muhammad Zaman and Muhammad Ishaq were not fasting while the remain ing two were. At about 10 a.m., Muhammad Zaman and Muhammad Ishaq went to the boundary of the field situated close to a path way in order to have the food which they had brought along with themselves from their respective house. Muhammad Zaman had the food, but Muhammad Ishaq, it is asserted refused to partake it, because he was feeling unwell. Shortly afterwards, the aforementioned. Ahmad Khan and Muhammad Khan, both armed with shotguns, are alleged to have arrived at the scene. They threw a challenge to Muhammad Ishaq, and simultaneously Muhammad Khan fired a shot which hit Muhammad Ishaq, who sank down dead. Ahmad Khan is said to have then fired and hit Ghulam Isa, while the latter was running towards his son. Muhammad Zaman and Nur Muhammad are then alleged to have told the accused that they had already killed one person and should not take the life of the other, on which both the accused retreated. Ghulam Isa (P. W. 3), leaving his other two compa nions with the dead body of his son, went to Mianwali Saddar Police Station, situated at a distance of 31 miles from the scene of occurrence, and lodged the first information report there at 12 in the day. Mian Gul Muhammad, A. S. I. (P. W. 10) record ed this report and proceeded to the spot, where he found the dead body of the deceased still lying, guarded by Muhammad Zaman and Nur Muhammad (P. Ws. 4 & 5) respectively. He picked up the bloodstained earth as well as a sickle, a pair of Chappals, an earthen pitcher and two stacks of wheat. He also recovered two cardboard wads, one marked as S. G. and the other blank. At the trial, both the accused denied the charge. They also denied that Muhammad Ishaq deceased was suspected to be carry ing on with their sister, Mst. Bhag Bhari. In answer to a question as to why they were charged, they said that Ghulam Isa (P. W. 3) was a tenant of Sherbaz Lambardar with whom their father and uncle had been litigating for the last six years, and even then a case was pending between them in the Court of Senior Sub‑Judge, Mianwali. They claimed that it was on account of this enmity that Sherbaz had succeeded in persuading Ghulam Isa to charge them falsely. In support of this, they produced a Paper Book of Civil Appeal No. 34 of 1952 pending in the High Court of judicature at Lahore. It seems to have arisen out of a suit instituted by one Ghulam Khan, son of Nur Khan, against Nawab Khan, and 27 others, including Sher Khan, the father of the two accused. Out of the three assessors who sat at the trial one was of the opinion that the accused were innocent while the other two thought that they were guilty of the offences charged with. The learned Sessions Judge, Mianwali, accepting the majority view, convicted both the accused under sections 302 and 307 read with section 34, Pakistan Penal Code. He sentenced Muhammad Khan under the former section to death subject to the con firmation of the sentence by this Court. Ahmad Khan was sentenced under the same section to transportation for life. Under section 307 both of them were sentenced to seven years' rigorous imprisonment and a fine of Rs. 200 each, or in default of the payment of the fine to undergo further rigorous imprisonment for a period of six months. In the case of Ahmad Khan, both the sentences were ordered to run concurrently. The two convicts have come up on appeal to this Court, and the sentence of death passed upon Muhammad Khan is also before us for confirmation. Out of the three eye‑witnesses, the presence of Ghulam Isa at the spot can certainly not be doubted. The gunshot wound, 1/3" x 1/3" on the upper one this third and outer side of his left arm, is an unimpeachable evidence of it. This injury unmistakably points out that the culprit, or culprits, must have been in front of him or almost in front, when they fired. The occurrence took place in broad daylight and the shots must have been fired from not a very far distance, though it must be taken to be twelve feet or more as the doctor says it, because otherwise there was every possibility of the culprits missing their target. Whatever the location of the culprits and the victims may exactly be at the fateful time discussion with regard to which will be made in the sequel, the evidence produced does not show that far and wide there were any trees or thick crops or any other hiding place where the miscreants while firing could have sat in ambush. In these circum stances, one may say with reasonable certainty that Ghulam Isa did see very distinctly the person or persons who fired the shots which tore through his arm and his deceased's son chest, causing upon the latter an injury, 1/3"x 1/3", 1" above the right nipple, and must have positively identified them. Ghulam Isa's statement as well as the statements of Muhammad Zaman and Nur Muhammad (P. Ws. 4 & 5) respectively that the two‑accused appellants appeared on the scene, informed the deceased that his end had come, and then both fired one shot each, hitting the father and the son at the same time, are quite plausible, but when attempting to appreciate them in the light of the recoveries made from the spot, the size of the pellets and the dimensions of the injuries on the victims, they are not wholly convincing. Where as it might be possible to think that two shots were in actual fact fired, the probability seems to be that only one shot was fired, and the two pellets from the same cartridge hit both the father and the son at the same time. One cannot absolutely be sure because we can at the best do no more than to speculate and draw our own inference from the material placed at our disposal. Whether a witness should be wholly believed or wholly disbelieved or only partly believed and partly disbelieved depends on judg ment of motivating forces, that is to say in the province of what was or is in witness's mind. The witness may be merely mistaken about the facts or he may be completely unaware of them. He may be duped by his own fancy or he may be a deliberate cheat. In appreciating the evidence of oral witnesses, the people living in a certain locality and material conditions prevailing therein have their own specific pattern. Intelligent thoughtfulness is therefore, obviously of central importance in weighing the evidence produced in Court. This intelligence means comparing the facts proved with the evidence produced, making an allowance far degrees and circumstances and treading tentatively through hypothesis and surmises. There is a great wisdom in appreciating, sifting, weighing, accepting and rejecting the evidence of or at witnesses in the light of known facts of every day experience. The maxim falsus in uno falsus in omnibus (false in one particular false in all) in this part of the country, if accepted and adhereai to doggedly, will completely paralyse the administration of justice. The convictions will become exceedingly rare and the country will be flooded with criminals of all types. The end before the Court should be to see that the criminals pay to the price oil their misdeeds and the innocent people are not victimised and deprived of their lives and liberties. The administration of law before the Courts must relate to this end. In this part of country it ought not to be absent from judicial conscience that the people are pretty loose with the truth. No matter howl advanced our modern civilization the train of thought remains the same. It is difficult to expect from those people the same stan dard of candour as it exists in our imagination. These people are highly sensitive and exceedingly vindictive. For a person to give false evidence for another it is not necessary that murder or some other serious offence should have in the past taken place between the families of the two. An ordinary brawl, an innocent joke, a taunting remark, and a casual abuse, for in villages one seldom finds people talking without embroidering their talk with most filthy and vulgar abuses, have been known to have registered and carefully stored in the memories to be used when and where the occasion arises. If this happens it is difficult to prove by positive evidence that such a brawl, joke, remark or abuse had in fact been preserved by some one in his memory. One can only infer things from the proved facts, the facts about which one can be reasonably sure that they cannot be false. If A has committed a crime, then the people do not feel the slightest hesitation, nor are they deterred by their conscience, which has different meaning for different persons, from incriminating A's relations and their other enemies falsely out of sheer vindic tiveness. They also have no difficulty, whatsoever in procuring witnesses to corroborate their false charge. Some of the witnesses come forward on account of their relationship with the aggrieved persons and the others to avenge the wrong done to themselves some time back by all or any one of the accused charged. In this complicated state of affairs, an onerous task lies on the shoulders of the Judges to do their best and separate grain from the chaff, and truth from the falsehood. According to Ghulam Isa, the motive which actuated the accused to commit this crime was the illicit connection between Mst. Bhag Bhari, the sister of the accused‑appellants. and the deceased, Ghulam Isa had no hand in it. On the contrary., in order to avert the evil consequence of this liasion, he along with the deceased, had shifted from Dera of Sher Khan to their origina. home‑village Roda. Mst. Bhag Bhari was immediately marries to one Alam Khan, but as ill luck would have it, Alam Khan brought his newly‑wedded wife in the lion's den, that is to say. near the very place which should have been avoided. This place was close to the field which was being cultivated by Ghulam lsa and his son. After Mst. Bhag Bhari was brought there. the deceased may or may not have renewed his love affair with her. but it seems that the accused continued receiving the news tha: they were meeting each other in the fields. It was for this reason and this reason alone that the two accused are alleged to have come to the field and committed this murder. In this context, then it is not very easy to understand as to why should Ahmad Khan have fired a shot at Ghulam Isa. He says that he was fired at, because he was running towards his son after he had been hit and was falling on the ground. This seems to be a very unconvincing motive for Ahmad Khan to fire at an innocent ~person, particularly when Ahmad Khan had no reason to believe that the father was encouraging his son to carry on with his sister, or was running in order to harm the accused, because he had no weapon in his hand. In fact, there was a stronger motive for Ahmad Khan to have fired at Muhammad Zaman and Nur Muhammad, because they had actually warned him that one person had been killed and he and his brother should not take the life of the 'other. The two accused‑appellants are said to have beaten the retreat on this warning rather than fire at Muhammad Zaman and Nur Muhammad. If Ahmad Khan fired because he wanted to obliterate and destroy the ocular evidence ‑in the case, then he and his brother should have killed every one who was present at the spot. From all these facts it is pretty clear that the two appellants had no intention to take the life of anybody else and certainly not of the father except the one who had disgraced them, so there was no discoverable reason which should have prompted Ahmad Khan to fire at Ghulam Isa. According to the evidence of the doctor, the dimensions of the injuries on the father and the son were exactly the same. They were in the same level as if the two pellets from the same cartridge had hit them at one and the same time. Again, the coincidence, though not entirely out of the pale of possibility, is considerably remote, that separate shots should have been fired at the father and the son, and yet in both the cases only one pellet should hit each. There is then the recovery of two cardboards out of which one alone is marked with the words "S. G." and the other is blank. It is conceded at the Bar that the cardboard which is marked "S. G." is always placed at the top of the cartridge and the blank one at the bottom. It is, therefore, clear that both these card boards were of the same cartridge. If two shots had been fired then one would expect to have two marked and two blank card‑boards lying at the spot. By itself the absence of the other pair of cardboard may not be of very great importance, but considering it with other circumstances of the case, it does afford an impor tant clue. The next question in this context which requires special atten tion is the exact location of the culprits and the victims at the time when the tragedy was enacted. According to the plan drawn by Karam Hussain Girdawar (F. W. 7) the deceased at the material time was at point No. 1 which y be accepted as correct, because blood was found here in considerable quantity. It was picked up by the investigating officer and the Chemical Examiner and the Imperial Serologist opined that it was human. Culprit or culprits were shown to have been standing at point No. 6, which is situated towards the east of point No. 1 at a distance of about 15 karams. This may also be accepted as correct, because the two wads were found in its vicinity. It is the exact location of the place where Ghulam Isa was when the shot was fired which requires serious consideration. According to the plan, he was at point Ne. 5, which is situated at a distance of about 7 karams towards the south of point No.

1. According to the evidence produced at the trial, Ghulam Isa and his three com panions had gone to the field in order to reap the wheat. Shortly before the occurrence, it was alleged that the deceased and Muhammad Zaman had gone to the boundary of the field from where they, had started cutting the wheat in order to have their meals when the shots rang out. By this time they had already cut 11 or 14 kanals of the wheat crop. The place where the crop was cut and where the stacks were lying has been shown on the plan by point No.

8. Though the distance between points Nos. 1 and 8 is neither given in the plan, nor in the evidence of the Girdawar and the investigating officer, yet it seems that these places are situated quite close to each other. Another point which is left unexplained in this connection is as to how point No. 8, where according to the investigating officer, wheat was being cut, comes to be situated in Khasra No. 1994. Point No. 5 is situated in Khasra No. 1990 which is shown to belong to Shehbaz whose tenant‑at‑will Ghulam Isa was. Ordinarily, Ghulam Isa should have been in this field, and if he was here, and his son at point No. 1, then one shot could not have injured both him and Muhammad Ishaq, but then he himself stated that he had started cutting wheat from the pathway which is situated in Khasra No. 1994. Though not mentioned in the plan or in the evidence, it can safely be said that Khasra No. 1994 also belongs to Sherbaz and is under the cultivation of Ghulam Isa. The investigating officer stated in his evidence that he took two stacks of wheat into his possession, although several were lying scattered here and there, but no question was asked from him to say as to from which exact place were these stacks picked up. This shows the carelessness with which the learned trial Court conducted this trial. If the wheat was being cut at point No. 8, and not at point No. 5, then Ghulam Isa should have been at the former point, and not at the latter. It appears that the father and the son both were standing close to each other when the shot was fired. As it was fired from a distance of about 15 karams the pellets scattered, out of which one tore through the arm of the father and the other through the chest of the deceased. Muhammad Zaman and Nur Muhammad, it appears, were standing at a place which was beyond the radius of scatter. This would be the position accord ing to the statements of the prosecution witnesses given at the trial. Point No. 5 given in the plan seems to be the ingenuity of the Sub‑Inspector, who in order to prove that two separate shots were fired, removed Ghulam Isa's location at the time when he was injured, from point No. 8 to point No.

5. It seems probable that the two accused were going together on the track which runs between Khelawala and Roda when they saw the deceased standing in the field. Muhammad Khan, who alone was armed, went into rage. He immediately levelled the gun at the deceased and fired a shot, hitting the father at the same time. Since both the accused were together and two persons had been hit, we can quite understand the bitterness of Ghulam Isa in trying to implicate both the accused in this crime. We are also not surprised at Nur Muhammad, his paternal uncle's son, and Muhammad Zaman, who was under an obligation to Ghulam Isa's brother, because he had provided shelter to him, corroborat ing him in all material particulars. It was quite easy for them to incriminate both the accused without disturbing in the least the main prosecution story and attribute the injuries on the deceased to Muhammad Khan and that on Ghulam Isa to Ahmad Khan comparatively less serious offence, which is usually attributed to innocent people. As we have said above, the witnesses may be right in their charge against Ahmad Khan but still in the light of the circumstances, we consider it extremely hazardous to pin down the crime to him or attribute to him common intention with his brother Muhammad Khan. It is a cardinal principle of law of interpretation that when a set of circumstances leads to two D inferences, equally plausible, then the one in favour of the accused should be accepted as correct. The presence of Muhammad Zaman and Nur Muhammad at the spot has been contested by the learned counsel appearing for the appellants. Having held that Ghulam Isa was present at the spot, and he must have identified the culprits, the evidence of these witnesses loses much of its importance, for even without it the case against Muhammad Khan would be perfectly clear on the strength of the evidence of Ghulam Isa alone, which will be quite adequate and effective. We, however, do not share the views of the learned counsel for the appellants with regard to their evidence. In our view, they were present at the crucial moment. It was conceded by the learned counsel that the Zamindars when they have to reap their crop or thresh it, since it cannot be done by one or two individuals, do invariably seek the assistance of their relations and co‑villagers in this task. The relations of the villagers always agree to assist on the ground of reciprocally. If, however, those whose assistance is sought own no land, then they are either paid in cash or kind for the services rendered by them. Ghulam Isa's explanation, therefore, to the effect that he had engaged Muhammad Zaman and Nur Muhammad, who own or cultivate no land, to assist him in cutting the wheat crop, on their receiving one stack of wheat for every twenty‑one stacks cut, seems to be quite plausible. The investigating officer, when he went to the spot, saw several stacks of cut wheat lying here and there in the field. This must have been done for counting, and in this respect, therefore, the investigating officer supports the evidence of the prosecution witnesses. Apart from it, the wheat from 1.1 or 1J kanals of land had actually been cut, and this could not have been done by two persons till 10 a.m. even if it is taken that they started the work immediately after the sehri which in the month of April lasts till about 4‑30 a.m. In addition to all this, we have the evidence of the investigating officer that when he arrived at the scene, after recording the first information report, he found both these persons sitting next to the dead body, and he recorded their statements immediately on his arrival. The learned counsel for the accused has laid considerable emphasis on the finding of two ounces of digested food in the stomach of the deceased. According to the statement of Ghulam Isa made in the first information report, Muhammad Zaman and the deceased, in spite of it being the month of Ramzan, had taken their meals when the occurrence took place. If this was correct, then normally the stomach of the deceased should have contained undigested food. All the three witnesses, however, at the trial, have stated on solemn‑affirmation that though the deceased stopped the work along with Muhammad Zaman, in order to take their food, yet he did not have the food, on the ground that he was not feeling up to the mark. This statement, in any way, is corroborated by the evidence of the doctor. The father, when he said in the first information report, that his son had taken his food, may have been wholly mistaken. His state ment may have been based on a pure surmise, because if his son had left with Muhammad Zaman, the only inference which a reasonable man could draw therefrom is that his son must also have taken the food with Muhammad Zaman, but then the possibility that he did not do so, cannot be excluded. After all, the father never said even in the first information report that his son took the meals within his sight. Be that as it may, it is difficult for us to understand, and indeed no explanation has been suggested to us by the learned counsel for the defence as to what particular object the father gained in introducing into the prosecu tion story the taking of meals by his son immediately before he met his death. It did not improve the prosecution version in the least. So, if it was said then he must have said it genuinely believing that his son had eaten the food. For all the above reasons we feel that a reasonable doubt exists with regard to Ahmad Khan's participation in the crime, but we entertain no such doubt in respect of Muhammad Khan, about whom all the three witnesses said positively that he fired the fatal shot at the deceased. None of these witnesses have any motive to charge the accused falsely. The motive alleged for the murder can also not be described as a double edged weapon, because while it affords motive for the murder, it cannot be used as an incentive for the false charge. The statement of the accused that Sherbaz with whom his father and uncle had civil litigation must have induced Ghulam Isa to charge him falsely also bears no conviction, for there is no evidence that Sherbaz met Ghulam Isa before the latter went to make the first information report or he had developed so much influence over him during a short span of time that he has been in his service that he could successfully persuade him to charge a completely innocent person for such a serious offence as murder. If Ghulam Isa had not identified the culprit, which considering the time and place of occurrence is completely out of question, then he could have charged his own enemies rather than the enemies of his short term landlord, Supposing Sherbaz did succeed in having his enemies falsely charged by Ghulam Isa, why should the other two eye‑witnesses oblige him. They are neither his tenants nor in any other way amenable to his influence. We are, therefore, quite satisfied that Muhammad Khan is guilty of both the offences that he has E been charged with. The conviction of Muhammad Khan both under section 302 and 307, Pakistan Penal Code, is, therefore, upheld. The question of sentence to be awarded to Muhammad Khan under section 302, Pakistan Penal Code, has attracted our serious attention. The learned counsel for the defence produced before us the school leaving certificate of one Muhammad Khan, son of Sher Khan, showing his date of birth to be 2nd of August, 1942. This certificate was not proved in the trial Court and we, therefore, summoned Muhammad Khan from jail in order to see for ourselves whether he was about 16 years of age as the certificate shows, or 22 years of age as the learned trial Court has written in the record. The accused, who appears to have clean‑shaved himself only this morning certainly is not sixteen years of age. He appears to be about 22 as has been observed by the learned trial Court. The age mentioned in the certificate may be written less, because it is not uncommon for the people to give consider ably less age in schools in order to help them in the Government service. The accused has committed this murder no doubt because he suspected the deceased of having a liaison with his sister, but at that particular time the deceased had given him no cause for this atrocious act. We have vainly looked for an extenuating circum stance, but could find none. We have arrived at the conclusion that the only punishment which the accused merits is one of death. We therefore accept the appeal of Ahmad Khan and acquit him of the charge. He is present in Court and is set at liberty. The appeal of Muhammad Khan is dismissed and his death sentence confirmed. A. H. Order accordingly.