1968 SCMR 98 (PLP)

S. A. RAHMAN, J. -This order will dispose of two petitions for Special Leave to Appeals Nos. 149 and 159 of 1967. In the first petition, Muhammad Sharif challenges the acquittal of Nazar Hussain Shah and Kamal Din, in a murder ease, by order of the High Court of West Pakistan and further urges that the sentence, awarded to Muhammad Bakhsh, respondent, for that murder, by the trial Judge, namely, the capital sentence, should have been retained intact and not altered to one of transportation for life, by the High Court. By the second petition Muhammad Bakhsh calls in. question his conviction and sentence, as not justified by the evidence on record. The prosecution story was that Mst. Sahibzadi, a daughter-in-law of Muhammad Bakhsh, petitioner, had developed illicit intimacy with Muhammad Latif (P. W. 11), a brother of Muhammad Shall deceased. A complaint was made in that connection by Muhammad Bakhsh to Faiz Ahmad Lambardar (P. W. 13), some six months prior to the occurrence. Faiz Ahmad, It apparently contacted Muhammad Sharif another brother of the deceased and the latter, after enquiry, assured him that the allegation was not well founded. This assurance was conveyed to Muhammad Bakhsh who was not however, satisfied. There had also been a dispute about the demolition of a watercourse by Muhammad Bakhsh, to the prejudice of Muhammad Sharif whose lands adjoin those of the petitioner, sometime before the occurrence: These incidents form the background for the murder. On the 26th December 1964, at about 8 or 9 a. m., the three accused are said to have turned up at the shop of Muhammad Shafi, deceased. At that time Muhammad Sharif, Ghulam Haider, Faiz Ahmad and Maqbool, P. Ws., also happened to be sitting there. The deceased, Muhammad Amir, was sitting inside the shop, selling ghee to Muhammad Shafi. After having concluded the transaction of ghee Muhammad Amir left the shop, taking his Gadwa (P. 1) with him. He had gone only a few karams from the shop when the aforesaid persons appeared at the shop. Muhammad Bakhsh was armed with a stick, Nazar Hussain Shah with a rifle and Kamal Din with a gun. On arrival, Muhammad Bakhsh enquired of Muhammad Sharif, P. W., where his brother Muhammad Latif was and also gave him a stick blow. Muhammad Sharif got up and was given two more stick blows by Muhammad Bakhsh. On the cries of Muhammad Sharif, Muhammad Shafi came out of the shop, caught hold of Muhammad Bakhsh and threw him on the ground. At this stage Muhammad Bakhsh called upon his companions to fire at Muhammad Shafi. These two men were not known to the P. Ws. at that time. Nazar Hussain Shah, who was armed with a rifle, fired two shots at Muhammad Shafi, both of which hit him. Muhammad Shafi fell down. Just then Muhammad Amir came back and entreated the accused not to do any more harm. At this, the other stranger, namely, Kamal Din, who had a gun, fired at Muhammad Amir, hitting him on the chest. Muhammad Amir receded into the Ihata of Yara Wains and fell down there. The culprits then left. Both Muhammad Shafi and Muhammad Amir died of the injuries they had received, shortly after. The First information Report was lodged at Police Station Sadar, Sargodlia, some 10 miles off, at about 11-30 a. m. the same day, by Muhammad Sharif, P. W. In this Muhammad Bakhsh was named as the principal culprit, but the two strangers' des cription was given. The medical evidence showed that both Muhammad Shafi and Muhammad Amir had died of gun-shot wounds. Muhammad Sharif (P. W. 18), was also found, on examination, to bear two injuries on his person, caused by a blunt weapon. One of these injuries was grevious in character, as it involved the fracture of the lower end of the left ulna. Nazar Hussain Shah was alleged to have been arrested on the 4th January 1965 from Chak Muhammad Khan and sent to jail that very day. On the 13th January 1965, an identification parade was held by a Magistrate but Nazar Hussain Shah declined to participate in it, on the ground that he had been shown to the witnesses while he was in the Police Station, on a number of days before being sent to jail. On. the 14th January 1965 this accused was remanded to police custody and on the 16th January 1965, he dug out a rifle from a sugar-cane field where it lay buried and produced it before the Investigating Officer. Kamal Din, accused, is said to have been produced before the Police by one, Muhammad lshtiaq, on the 17th January 1965. He too, it is stated, was sent to jail on flu same day and his identification parade was held in jail on the 21st January 1965, under the supervision of a Magistrate. All the four witnesses correctly picked out Kamal Din, accused, as the man who had fired at Muhammad Amir. This accused was remanded to Police custody on the 24th January 1965. He surrendered to the Investi gating Officer, a gun which he dug up from his own house. This Faun was found, by expert evidence, to have been used for firing the empty cartridge (P. 14), recovered from the site of occurrence. A bullet had also been picked up from the spot and it was sent along with the rifle, recovered from Nazar Hussain Shah, to the Arms Expert. After making a test, this expert was unable to say if the crime-bullet had been fired from the rifle in question. The defence of the accused persons was a denial of the prosecution allegations against them. Nazar Hussain Shah and Kama] L Din did not admit that they had produced any rifle or gun before F the Investigating Officer. The eye-witnesses in the case were Muhammad Sharif, Ghulam Haider, Faiz Ahmad Lambardar, and Maqbool. Out of them Muhammad Sharif is a brother of the deceased, Muhammad Shafi, Ghulam Haider, is his uncle and Maqbool lives in the lhata of Muhammad Sharif, P. W. There were therefore, characterised as interested witnesses, by the Courts below. Faiz Ahmad was however, regarded as a disinterested witness. The story, as told by these P. Ws., was consistent and was accepted as trust-worthy by both the Courts: We have heard Mr. Nazir Ahmad Khan, in support of the petition by Muhammad Bakhsh. The learned counsel con cedes that Faiz Ahmad was an independent witness in this case. But he tried to attack his evidence on the plea that he was a chance witness and had no particular business to be present at the shop of Muhammad Shafi, deceased, at the relevant time. The witness deposed that he had come there because he used to ply a cart on hire and had to realize the hire of the cart from Muhammad Sharif, P. W.,..to the extent of Rs. 45. He owns two squares of land also. He is apparently a man of status and gave good reasons for his presence at the spot, at the material time. We do not find any good ground for rejecting his testimony as false and agree with the assessment of his worth by the Courts below. The questions raised by Mr. Nazir Ahmad Khan merely relate to appreciation of the evidence on which the conviction rests and can furnish no ground for grant of special leave to appeal. The petition of Muhammad Bakhsh is dismissed. We next take up the petition of Muhammad Sharif. The finding of both the Courts below was that Nazar Hussain Shah had actually been produced defore the police long before his formal arrest, on the 4th January 1965, and therefore, it was extremely likely that he might have been shown to the witnesses prior to his being sent to jail. The two Courts agreed that the identification test, to which Nazar Hussain Shah was subjected, was in consequence, a farce and no reliance could be placed on it. For the same reason, the bona fides of the Investigating Officer for being suspect, no sanctity was attached to the identification parade proceedings held in respect of Kamal Din. These are cogent reasons which cannot be lightly brushed aside. The eye witnesses' claim that the two acquitted accused were the very persons who had fired at the two deceased men is, therefore, open' to grave doubt. This inference was further fortified, according to the learned Judges of the High Court, because their description, as given in the First Information Report, did not tally completely with their own characteristics. Both the strangers were described Hin the First Information Report as Naujawans (youths) of average height and of wheaten complexion. It was found that Nazar Hussain Shah was admittedly aged 50 years and could, by no stretch of imagination, be called a Naujawan. His height was also 5 feet and 8 inches which, according to the learned Judges, was not consistent with the description of "average height." As regards Kamal Din, it was observed, that he was a person with a dark complexion and therefore, the wheatish complexion, mention ed in the First Information Report, did not fit him, These are weighty reasons why the identification of these two accused with the actual culprits, by the r. Ws., was disbelieved by the Courts below. We can find no fault with the judgment of the Courts below in this respect. It was urged by Mr. M. B. Zaman, on behalf of Muhammad Sharif, petitioner, that against Kamal Din, there was the additional evidence of the recovery of a gun which was matched with the crime-cartridge picked up from the spot, by expert opinion. The learned Judges, however, have pointed out that the two recovery witnesses of this gun were discrepant on material points and therefore, the recovery of the gun itself was doubtful. They C differed as to whether the gun was found in the eastern or the western koala and as to whether the recovery took place at 9-30 a.m. or 3-30 p.m. We consider that the learned Judges were justified in discarding the evidence of this recovery, specially when it is remembered that one of the recovery witnesses was admittedly inimical to the accused. We have, therefore, reached the conclusion that the acquittal of Nazar Hussain Shah and Kamal Din is not open to any excep tion and the petition of Muhammad Sharif against them, fails. Lastly, it was contended by Mr. M.B. Zaman, that there was no justification for the High Court to withhold the maximum penalty provided for the offence of murder in the case of Muhammad Bakhsh. The learned Judges however, have taken note of the special circumstances in which the two murders were committed. It is apparent that Muhammad Bakhsh had not contemplated the killing of Muhammad Shall or Muhammad Amir. The last-named was a close relative of Muhammad Bakhsh himself and seems to have been killed by one of his hirelings, without any suggestion froth him, when he came up to intervene. Even with regard to Muhammad Shaft, it is clear that there might not have been any occasion for shots being fired at him, if he had not thrown down Muhammad Bakhsh. In these circumstances, we are not inclined to interfere with the order passed by the High Court. We dismiss the petition of Muhammad Sharif also.