P L D 1967 Supreme Court 443 (PLP)

CORNELIUS, C J.‑The appellants are six in number and fall into three separate groups. Muhammad Ilyas and Nluhammad Aslam are two brothers, sons of Chiragh Din, Rajputs by tribe. Kbizar and Sikandar are brothers and Faiz Ahmad is their father's brother. These three persons are also Raiputs, but are not directly related to the first‑mentioned group. The sixth person, Abdul, is a Jat. So far as can be made out from the record, some 15 years before the occurrence, the accused Faiz Ahmad was involved along with Ilyas and some of his relations in security proceedings against Nur Muhammad, P. W. 7, an eye‑witness in this case, but apart from that there is nothing to show any association between the two groups of Rajputs. These six accused persons stand convicted of offences under sections 148 and 302/149, P. P. C., for the murder of one Ghulam Muhammad, who was killed on the 18th November 1964, at about sunset, on a village road connecting his village Sansra Goraya with the town of Gujranwala, the distance being about four miles. The death of Ghulam Muhammad was the result of some 8 blows with a hatchet and one gunshot, namely, a .303 bullet, which passed through his chest entering the right side and existing through the left back. Five incised wounds were situated on the sides and back of the head and the other three were on the left chest, the left upper arm and the left forearm. Conceivably all these incised injuries could have been caused while the victim was on the ground. The prosecution case was that the firearm was a pistol carried by Ilyas, while the remaining five persons used hatchets. Three eye‑witnesses Nur Muhammad, P. W 7, Muhammad Shafi, P W. 9 and Allah Rakha, P. W. 10, who professed to be at the time in the company of the deceased gave a description of the attack. The six accused persons appeared in front of the group and first Ilyas called out to Ghulam Muhammad saying that he was to be punished for two reasons, viz., firstly, that he had opposed Ilyas in an election and secondly, that he had helped Ghulam Rasul (P. W. 11) in his case. The details of these matters will be mentioned presently. Ghulam Muhammad was carrying a pistol and tried to pull it out, but he was over‑powered by Khizar and the rest of the accused started to give him hatchet blows and while these blows were being struck, Ilyas fired his pistol at him, whereupon he fell down and died. It is to be noted that the entry wound caused by the bullet showed no sign of scorching or charring or blackening and as a rifle cartridge was used, the conclusion must be that the range was fairly considerable. The story that the pistol shot was fired from close quarters while the A victim was surrounded by five persons using their hatchets on him, is therefore clearly incredible. It would be easier to believe that the pistol shot was fired first and when the man came down he was given blows with hatchets by a number of persons. While this was happening, the three eye‑witnesses did nothing and it is worthy of note that none of them was attacked, although they were all unarmed. Two at least of them are old enemies of the Rajput group among the accused persons. However, it is said that they raised an alarm, whereupon the appellants fled leaving behind in their flight the following articles, namely (1) Sikandar's hatchet and his shoes, which were left stuck in the mud, (2) the shoes of Khizar accused and (3) a single chappal belonging to one of the other accused persons. Of the three eye‑witnesses, Allah Rakha was related to Ghulam Muhammad, who was his brother‑in‑law. A sister of Ghulam Muhammad was married to a brother of Allah Rakha named Shah Muhammad. Allah Rakha had been accused along with Shah Muhammad and two others for the murder of one Aziz Khan, for which eventually Shah Muhammad was executed. Allah Rakha, however, denied that the accused Abdul was responsible for having him arrested for that crime. It was brought out in evidence that some eight years earlier, the accused Abdul and Ghulam Muhammad had been candidates at an election. This was stated by Allah Rakba, but Ghulam Rasul, P. W. 11, whose connection with this case is significant, said that both Abdul and Ghulam Muhammad were elected on that occasion so that no enmity need have been bred out of that election. There had been another election shortly before the murder (presumably the election for the Basic Democracies) but on this occasion, Ghulam Muhammad had not stood as a candidate. The contestants were the accused Muhammad Ilyas, and one Rahimuddin, who also appears to have bad a significant part in the prosecution of this case. Ghulam Rasul, P. W. 11, his uncle Sajawal, P. W. 14 and Umar Din, P. W. 12, a partisan of his, had several causes of enmity against Abdul. Sajawal tried to make out that Abdul was a nephew of his, but the claim was broken down in cross‑examination. He admitted that his relations Hakam and Bahawal were, beaten by Abdul. That was 20 or 30 years before, but it was admitted also that, more recently, there had been a Settlement dispute in which Abdul had given evidence against the interest of Ghulam Rasul and Sajawal. Sajawal said further that Ghulam Nluhammad deceased had given evidence against Shafi, a cousin of Abdul, in a murder case, but this was elicited in cross‑examination and does not figure as a motive against Abdul in the prosecution case. The result which follows is that Abdul had no motive to desire the death of Ghulam Muhammad. The motive for Sikandar, Khizar and Faiz to join in killing Ghulam Muhammad is said to be this. Ghulam Rasul, P. W. 11, had brought a criminal case under section 324, P. P. C., against these three persons and three others, which was pending at the time of the murder. It eventually ended in acquittal. In that case, it was said by Ghulam Rasul, P. W. 11, that Ghulam Muhammad had been helping him and when asked what the hclp was, he said that Ghulam Muhammad had been pressing the witnesses to depose in the case and tell the truth, despite the efforts of the accused persons to keep them back. Yet Ghulam Rasul never complained of this matter to the Court. No witness in the case made that complaint. One of them was Muhammad Shafi, P. W. 9, an eye‑witness in the present case, who could have supported the allegation, but no question was put to him on the point. Obviously, the motive resting on the hurt case of Ghulam Rasul, P. W. 11, is of the weakest possible character. The motive alleged as against Muhammad Ilyas and his brother Muhammad Aslam appears only through the mouths of the three eye‑witnesses repeating what Muhammad Ilyas cried out just before the attack, viz., that Ghualm Muhammad had been opposing him in his election. Nur Muhammad P. W. 7, admitted that Ghulam Muhammad was not a candidate at this election. Muhammad Ilyas's opponent was Rahimuddin, a man who clearly played an important part in this whole affair, but at the trial he had to be given up by the Public Prosecutor as having been won over. A reason for this could be that he was satisfied with the harm he had done to his opponent at the initial stage of this case. No witness has said a word as to any part taken by the deceased Ghulam Muhammad in the election for which Muhammad Ilyas was a candidate. It thus appears that the accused persons form a wholly miscellaneous group. There is no established association among them, which could serve to sustain the belief that on a particular occasion they would put their heads together in order to get rid of Ghulam Muhammad. None of the groups had a clear motive to desire his death. No incident in the proximate past is indicated which could possibly have given rise to such a desire in any of the groups, much less to the building up of a conspiracy among them to carry out that desire. A reason for their being brought together must then be sought in the nature and quality of the witnesses, and those who were responsible for accusing them before the Police. It is often said that proof of motive for a crime loses importance if there be strong evidence to prove that the crime C? was committed by the persons accused. But a case in which three separate motives applying to three separate groups are sought to be combined is of an exceptional nature, and where the proof of motive against each of the groups is startingly weak, the Court should be alert to the possibility that the joinder is artificial, i.e., not connected with the incident itself, but contrived by interested parties for the purposes of the resulting case. If there were any truth in the allegation of joinder, it would be natural to find proof that shortly before the occurrence, there had been occasion for revival of one or more of these enmities and further proof to establish conspiracy, or at least, association between the groups affected by the separate motives. In the present case, there is total absence of anything to indicate that prior to the occurrence, anything had happened to arouse a desire for vengeance against Ghulam Muhammad in the minds of any of the three groups. Further, there is complete absence,, of proof of any association, much less of indications of conspiracy between the members of the three groups to carry out a joint design. In a case of this kind, the evidence of eye‑witnesses requires to be examined with special care to ensure that the combination of the groups has not been effected for the satisfaction of the witness's own enmities. In such cases, the safe dispensating of justice is not ensured by merely examining each witness's evidence separately and considering whether it can be believed and if so to what extent, in view of the real danger of the while case being fabricated at the instance of the witnesses. Leave was therefore granted in this case to consider whether the truth might not be that the deceased was alone when he was killed and the whole case had been put together by enemies of the accused persons appearing as witnesses. There had been considerable delay in reporting the occurrence. At least two of the eye‑witnesses were themselves direct enemies of the accused persons, and yet no injuries were caused to them. After careful examination of the ocular evidence of Nur Muhammad, Muhammad Shafi and Allah Rakha, w e are satisfied that if due regard had been paid in the Courts below to the circumstances so far discussed, namely, the unexplained combination of three groups of alleged enemies in the number of the accused, and the total absence of any real motive in any of these groups to desire or cause the death of Ghulam Muhammad, the result would certainly have been different. The time of the attack is given as just about sunset, which was at 5 p.m. on the day of the occurrence. The Than a at Gujranwala is no more than about four miles from the spot and a considerable number of people are said to have arrived there very shortly after the occurrence, so that there need have been no delay in leaving for Gujranwala to report the occurrence. It was Ilas actually reported at 1s‑30 p .m., which raises several possibilities, such as that discovery of the murder was made late, that time was taken for concocting a story, etc. It was said that Ghulam , Muhammad accompanied by Allah Rakha and Nur Nlubammad got into a tonga driven by Muhammad Shall, P. W. 9 at the adcia in Gujranwala to go to their village Sansra Goraya. Persons who come together by the accident of travelling together in a public vehicle are ordinarily good witnesses to an incident happening on the journey. But, in this case, the conga is alleged to have been left behind at Theri Sansi, a short distance outside Gujranwala, and that reasons for being together was not available. The tonga driver is usually an unconnected person, but that is far from being the case here. The conga driver was Muhammad Shall, P. W. 9, nephew to Nur Muhammad, P. W. 7, and these two persons are inveterate enemies of the two????????? Rajput groups among the accused persons. The story that Muhammad Shafi took his horse along with him leaving the tonga and the saddlery near a soap factory without entrusting them to the care of any person (he did not even know the name of the Chaukidar) is clearly impossible to believe. Within a few minutes of the attack there arrived on the scene the aforesaid Rahimuddin, the election rival of Muhammad Ilyas. The group remained on the spot for about an hour, according to their statement, before Allah Rakha and Rahimuddin left for the Thana to make the report. Although they had the tonga available, they did not use it but went on foot the whole way, which seems merely a device to explain away a significant delay. The suggestion is made that this time was in fact used for fetching Allah Rakha a relation of the deceased from his village Kangniwala, which is along the Grand Trunk Road, and on the route from Gujranwala to gansra Goraya village. At this stage, it will be appropriate to tabulate the enmities of Nur Muhammad and Muhammad Shall with the accused persons. Muhammad Shall was an eye‑witness for Ghulam Rasul, P. W. 11 in the pending case against Khizar Hayat and Sikandar, etc. Nur Muhammad's uncle had been involved in one case after another against llyas and his party for about 15 years. There were security proceedings some 15 years ago followed by a beating case a few years later and five years before the murder, there were fresh security proceedings in which Nur Muhammad with Shafi and Umar Din, P. W. 12, a brother‑in‑law of Ghulam Muhammad, were on one side and a party headed by one Muhammad Hussain were accused on the other and it was alleged that in this case, Ghulam Rasul, father of Khizar and Sikandar had given evidence. This was denied by Nur Muhammad, but was proved by production of the order made by the Court, which is Exh. DD. Thus, it is clear that both Nur Muhammad as well as Muhammad Shafi were keenly interested to implicate not only Muhammad Ilyas, but also the other Rajput group, that is Khizar and Sikandar and their uncle Faiz. The presence on the spot of the man Rahimuddin and the fact that he went with Allah Rakha to the Thana are significant matters, for Rahimuddin had recently fought an election against Muhammad Ilyas. Therefore, a reason for the grouping together of the two sets of Rajputs is afforded by the presence among the witnesses of Nur Muhammad and Muhammad Shafi and by the immediate association of Rahimuddin in the report to the Police. As for Allah Rakha, the explanation that he gave for going so late in the evening to Sansra Goraya is that he wished to ask one Mst. Shamim Akhtar, wife of a son of Ghulam Muhammad deceased to go to his house in Kangniwala to attend a ceremony on the following day. The ceremony was by no means an unimportant one. It was in connection with the departure of his newly‑married daughter with her husband, and in view of the close relationship between Allah Rakha and Ghulam Muhammad, it may be supposed that all arrangements for the presence of relations, in particular the women folk, would have been made in advance so that there would be no need for a last‑minute journey by Allah Rakha to fetch a single girl. Indeed it would have been sufficient for Allah Rakha to ask his brother‑in‑law Ghulam Muhammad to send his daughter‑in‑law the following day. The thinness of this excuse tends to support the view that Allah Rakha in fact was not on or near the spot at all, but having personal experience as an accused person in a murder case, he was sent for to be a witness in a case, which was being devised against the enemies of Nur Muhammad and Muhammad Shafi. It is not unreasonable to suppose that among the accused persons there was introduced at the instance of Allah Rakha, the name of the man Abdul against whom Allah Rakba appears to have a grudge, because he had been instrumental in procuring the arrest of Allah Rakha and his brother Shah Muhammad and others in the earlier murder case, which ended in the execution of Shah Muhammad. The plan of the spot shows that there were two inhabited deras close to the spot. One which was occupied by dindaran, village kameens, was only 40 karams away. The other, owned by Mian Nazir Ahmad Khan Noon was 114 karams away. No person from these deras was produced in evidence, and none was examined by the Police, probably for the reason that they were presented with a ready‑made case. Some use was also made in the case of circumstantial evidence. Three empty cartridges of .303 bore .were found on the spot. It is alleged that Muhammad Ilyas on the 30th November, eight days after his arrest, produced a 303 bore pistol, which was sent to the Forensic Expert, with the cartridges for examination. The report received was that none of the three empties had been fired from this pistol. The fact that three cartridges were fired is in itself an indication that the description given by the eye‑witnesses of the manner in which Ghulam Muhammad was done to death is false. If indeed, Ghulam Muhammad was already surrounded by the other accused persons who had given him heavy blows with hatchets, Muhammad Ilyas who was standing close by need have only fired one shot to find his mark. The firing of three shots coupled with the fact that the range was considerable shows that the killing took place in 4 different manner and that most probably the victim was hit and brought down by the third shot, after which he was given hatchet blows. No attempt was made to connect the hatchet found on the spot or the shoes, Exh. 6, with the accused Sikandar. The other pair of shoes, Exh. P‑1, are said to be those of Khizar accused, but the only proof led is that in the course of the investigation, they were tried on Khizar's feet and fitted him. They were shoes of desi pattern, and could have been of village manufacture, but no attempt was made to identify them as Khizar's property in any other way. From the possession of the accused Abdul a hatchet was recovered on the 30th November 1964, that is some 12 days after the occurrence. It was allegedly concealed in a heap of dung cakes, but when sent to the Chemical Examiner, a~ positive report was returned, viz. it was stained with human blood. Such a report must be regarded with suspicion in view of the long delay between the occurrence and the recovery of the hatchet, for putrefying dung would be almost certain to cause disintegration of blood, which also is organic matter. The accused persons all pleaded false implication and attributed the case to party faction. The existence of party factions is clearly established. Our conclusions in this case may now be summarised. Three groups of persons each with a very weak motive have been combined in the accusation of murder, without it being shown that there was any conspiracy between them, or any proximate exciting cause to lead them to join hands for carrying out the murder of Ghulam Muhammad. This circumstance is calculated to excite the strongest suspicion regarding the genuineness of the case. That suspicion is confirmed when it is found that two of the three eye‑witnesses have very strong motive for implicating two of the three groups and that the third group consisting of Abdul alone may well have been added because of his enmity with the third eye‑witness Allah Rakha. The delay in reporting is sufficient for drawing the inference that time was taken for putting together a case to be reported to the police. Bearing all these circumstances in mind we consider that the evidence in this, case was wholly unworthy of reliance and that in all probability, the entire case was fabricated. We accordingly allow this anneal and acquit the accused persons. The witness Allah Rakha has moved a petition seeking enhancement of the sentences awarded to Muhammad Aslam and Abdul from transportation for life to death, for the offence of murder. We find no force in this petition and hereby dismiss it. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.