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Petitioner: SHER MUHAMMAD VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Abdul Waheed Title: SHER MUHAMMAD vs THE STATE Case No.: Criminal Appeal No, 877 and Murder Reference No, 180 of 1980 Date of Judgment:1984-02-13 Reported As: 1985 MLD 1018 Result: Appeal accepted
JUDGMENT
JUDGMENT ' JAVID IQBAL, C J.-- Sher Muhammad, son of Hail Ghulam Muhammad, aged 29/30, armed with carbine, has been Convicted under section 302, P.P.C. For the murder of his father Haji Ghulam Muhammad, aged 70 years, and sentenced to death plus fine of Rs,5,000 or in default to undergo two years' rigorous imprisonment with the direction that if the amount of fine was realized from him, it should be paid to the heirs of the deceased as compensation according to the Muslim Law, vide judgment, dated 19-6-1980 passed by the Sessions Judge, Mianwali. The co-accused of the convict, namely, Daud Khan, aged 20 years, also armed with carbine, brother of Sher Muhammad appellant, was given the benefit of doubt and acquitted. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and heard together along with Criminal Revision No, 625 of 1981 against acquittal of Daud Khan co-accused as well as for enhancement of the sentence of fine imposed upon Sher Muhammad convict and these are being disposed of by this judgment. 2. The occurrence took place at 11-00 a.m. On 26-3-1979 on a pathway within the area of village Chakrala at a distance of one mile from Police Station Chakrala, District Mianwali. F.I.R. (Exh.P.G.) was lodged by Muhammad Aslam (P.W.9), son-in-law of the deceased, being husband of Mst. Mehar Fatima, daughter of the deceased from Mst. Fateh Khatoon, his first wife, at 12-45 p.m. On the same day and it was recorded by Muhammad Saeed Khan S.I. (P.W.10). 3. The motive for crime as stated in the F.I.R. Is that the deceased had two wives and from his first wife namely, Mst. Fateh Khatoon, he had a son called Dost Muhammad and two daughters, namely, Mst. Mehar Fatima and Mst. Mehar Bhari. Dost Muhammad, son, was murdered 16/17 years before the present occurrence. The second wife of the deceased was called Mst. Bibi Aisha. From
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the second wife the deceased had four sons and one daughter. The present appellant and his co- accused, namely, Daud Khan, were two of these four sons. On the murder of Dost Muhammad his land was got transferred by the deceased in the names of his two daughters mentioned above from the first wife. Sher Muhammad appellant etc. Wanted to take possession of the said land but they were not allowed to do so by the deceased. It is stated in the F.I.R. That seven years before the present occurrence the present appellant and his brother Sultan had fired at the deceased i.e, their father, who managed to escape but instead a cow was hit and it died. It is further alleged in the F.I.R. That after this incident the deceased divorced his second wife, namely, Mst. Bibi Aisha, and disinherited his progeny from that wife, including the present appellant as well as the acquitted co-accused. The appellant and his brothers had a grievance against their father, the deceased, as to why he had divorced their mother and disinherited them from the property and it was on account of this grievance that they found an opportunity to attack and murder their father. 4. The prosecution has produced one eye-witness of the occurrence, namely, Muhammad Aslam (P.W.9) who is son-in-law of the deceased, being the husband of Mst. Mehar Fatima, daughter of the deceased from his first wife, namely, Mst. Fateh Khatoon. The other witness cited in the F.I.R. Was Sardar Khan but he has not been produced and was given up as won over. 5. The appellant and his co-accused were arrested by Muhammad Sadiq S.I. (P.W.6) on 31-3-1979. No recovery was made from the spot but at the instance of Sher Muhammad appellant was recovered carbine (Exh.P.6) which was taken into possession vide memo. Exh.P.D. The attesting witnesses are Alam Khan F.C. (P.W.4), Ghulam Yasin H.C. (P.W.5) and Muhammad Sadiq S.I. (P.W.6). At the instance of Daud Khan, acquitted co-accused, was recovered carbine (Exh.P.7) and one live cartridge (Exh.P.8) which were taken into possession vide memo. Exh.P.E. The attesting witnesses 'are Ghulam Yasin H.C. (P.W.5), Muhammad Sadiq S.I. (P.W.6) and Shah Jahan F.C. (not produced). Both these recoveries were effected on 31-3-1979 i.e, on the date of their arrest. The aforesaid carbines were not sent to the Forensic Science Laboratory as no crime empty was picked up from the spot to match the same. In any case, these recoveries have been disbelieved. The prosecution case is mainly based on the ocular testimony which is coming forth in the instant case from a single witness, namely Muhammad Aslam P.W. 6. The appellant and the acquitted co-accused denied having participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated by their stepmother and her relatives in order to grab the land which was to fall in their share. They also denied the motive version. Sher Muhammad appellant produced Exh.D.A. Which is at page 58 of the printed paper- book. This is an order passed by the A.C./Magistrate Section 30, dated 29-1-1975 according to which he had discharged the present appellant and Sultan, his brother, in the course of trial under section 307/429, P.P.C. In which the allegation against the appellant and Sultan was that they had in furtherance of their common intention fired at Haji Ghulam Muhammad, their father, with the knowledge that by their act he could have died and they would have been held guilty of his murder and in the process they had maimed and disabled a cow belonging to one Mehar Khan. The accused persons named therein had been discharged because three years had passed and yet neither the complainant nor a single witness appeared in the Court to prove the prosecution story. The second document is Exh.D.B. Which is Nagai Aks Shajra. 7. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day the deceased along with Muhammad Aslam P.W. And Sardar Khan (not produced) had gone to cut fodder from the fields and the three of them were returning to their house when on the way the appellant as well as the acquitted co-accused, armed as described above, who were hiding in the wheat field, emerged out and challenged the deceased that why he was not giving their share of land to them. On this the deceased is stated to have replied that he had given to them their share already. Thereafter, Sher Muhammad appellant is stated to have told him that he was going
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to take his share and then he fired a shot through his .12 bore pistol at the deceased which hit him on his left ear. The second shot was fired by Daud Khan, acquitted co-accused, through his pistol which hit the deceased on his chin. As a result the deceased fell down and while he was in falling condition, Sher Muhammad appellant fired the third shot which hit on his belly. Thereafter, both the appellant as well as the acquitted co-accused ran away towards the Abadi. The occurrence was witnessed by Muhammad Aslam P.W. As well as Sardar Khan (not produced). Leaving behind Sardar Khan to guard the dead body Muhammad Aslam P.W. Proceeded to lodge the report. 8. Dr. Muhammad Hussain (P.W.1) conducted post-mortem examination on the dead body of the deceased at 9-30 a.m. On 27-3-1979 and noted the following six injuries on his person:- (1) A fire-arm wound of entry through the lower part of the left ear, in front and lower part of the ear. It was 5 c.m. x 5 c.m. No blackening or tattooing was seen. (2) A fire-arm wound of exit 10 c.m. x 10 c.m. On right side of the chin and right mandible which was fractured. (3) A fire-arm wound of entry 3 c.m. x 3 c.m. In front and through the right ear with no blackening or tattooing. (4) A fire-arm wound of exit on the left side of chin and mandible which was fractured. (5) A fire-arm wound of entry at the epigastrium 3 c.m. x 3 c.m. With no blackening or tattooing. (6) A fire-arm wound of entry 11 c.m. x 11 c.m. On the anterior lateral aspect of right, upper arm about 10 c.m. Below the right shoulder. A pellet was recovered from it. ' In his opinion the injuries had been caused with fire-arm. Injuries Nos. 1 to 5 were individually as well as collectively sufficient to cause death in the ordinary course of nature. The death was due to shock and hemorrhage and damage to the essential organs due to the injuries stated above. The death was within 7 to 10 minutes. He stated in the cross-examination that injury No, 2 was the exit wound of injury No, 1 and similarly injury No, 4 was the exit wound of injury No, 3. It may be pointed out that injury No, 2 was on the right side of chin and injury No, 4 was on the left side of the chin. Thus, both these injuries which are on the chin are stated to be the exit wounds of injuries Nos. 1 and 3. He has further stated in the cross-examination that injury No, 6 would have been possible from a stray pellet coming out of injury No, 2. 9. We have heard learned counsel for the parties and carefully perused the record. In this case the recovery evidence is of no corroborative value and it has even otherwise been disbelieved by the trial Court. The ocular testimony consists of only one eye-witness, namely, Muhammad Aslam P.W. Who is son-in-law of the deceased, and stated to be not only an interested witness but inimical and partisan. The testimony of the sole eye-witness, in the instant case, has been disbelieved in respect of the participation of Daud Khan co-accused, real brother of the present appellant, to whom had been ascribed an identical role to that of the appellant and he had been, therefore, given the benefit of doubt and acquitted. The trial Judge, while convicting and sentencing the present appellant had stated in para. 20 of his judgment that though he had believed the eye- witness account furnished by Muhammad Aslam P.W., in the case of Daud Khan co-accused he was put on abundant caution as Daud Khan co-accused had pleaded his innocence at the time of his arrest before Muhammad Sadiq S.I. P.W. While the present appellant did not do so. Daud Khan co-accused was ascribed to have fired a shot which hit the deceased on the chin and this was contradicted by the medical evidence. Therefore, the three shots fired at the deceased could have been fired by the appellant alone. Besides that the trial Judge was of the view that even previously the present appellant along with his other brothers had been implicated under section 307, P.P.C. For having fired at the deceased. Furthermore, the present appellant was co-murderer with the deceased when Abdullah was murdered and that, therefore, the present appellant seemed to be a man not of peaceful disposition and rather of violent nature, but no such element was forthcoming in the case of Daud Khan co-accused. Thus, these are the reasons which have been advanced by
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the trial Court in convicting and sentencing the present appellant and acquitting the co-accused Daud Khan. It is evident that the deceased, in the instant case, had two wives. His first wife was Mst. Fateh Khatoon and from that wife he had one son, namely, Dost Muhammad and daughters, namely, Mst. Mehar Fatima and Mst. Mehar Bhari. This Dost Muhammad had been murdered 16/17 years earlier. After the murder of the said Dost Muhammad, it is the prosecution version, that the deceased got the land standing In his name transferred to his two daughters from the first wife. It may be noted at this stage that the sole eye-witness of the instant case, namely, Muhammad Aslam P.W. Is son-in-law of the deceased in the sense that he is husband of Mst. Mehar Fatima, daughter of the deceased from the first wife, who had been materially benefited from that transaction, and it is for this reason that Muhammad Aslam P.W. Is stated to be an interested witness besides being hostile towards the appellant as well as a partisan witness. The prosecution version is that the deceased had a second wife called Met. Aisha Bibi through whom he had four sons and one daughter. The present appellant and co-accused Daud Khan are two of those four sons from the second wife. It is stated that the present appellant and his other brothers wanted to take possession of the land which the deceased had given to the two daughters of his first wife after the murder of Dost Muhammad. However, they were not allowed to do so by the deceased. Then it is stated that seven years before the present occurrence the appellant and his other brother had fired on the deceased, who had escaped but a cow was hit instead and it died. Thereupon, al case was registered against the present appellant and his brother under section 307/429, P.P.C. The trial was held by A.C./Magistrate Section 30, Mianwali, who, vide his order, dated 29-1-1975, discharged the appellant and his brother for the reason that the prosecution had not produced a single material witness in the case which had been registered on 7-5-1971 and that even after' the lapse of three years neither the complainant had appeared nor any eye-witness had been produced in the Court to support the prosecution version. It was in this background that the present appellant and his brother, who were accused in that case, were discharge. From the order of the discharged it appears that the parties might have compromised as neither the complaining i.e, the present deceased and father of the appellant had himself appeared in support of the prosecution nor he produced any other eye-witness of the occurrence as against his sons. Anyway, thereafter we are informed that the deceased divorced his second wife Mst. Aaisha Bibi and disinherited his progeny from that wife including the present appellant and acquitted co-accused vide a registered disinheritance-deed (Aaqnama) Exh.P.L. At page 49 of the paper-book which was written on 12-10-1973 and registered on 23-10-1973. Thus, this document was made in 1973 i.e, six years before the present occurrence. The motive version is that on account of this the appellant and his brothers had a grievance against their father and it was this grievance which after the lapse of a period of six years had resulted in the present occurrence. It may be pointed out at this stage that the 307, P.P.C. Case against the present appellant and his brother was related to an earlier occurrence of 1971, but the present appellant and his brother, who were accused in that case were discharged in 1975 possibly on the basis of some compromise. The record of evidence also indicates that the deceased had given some land to the appellant and his brothers or his progeny from Mst. Aaisha Bibi, his second wife, whom he is stated to have divorced. The point which absorbs our attention is as to whether the prosecution version in respect of motive is convincing or not. In other -words, could we say that the appellant etc. Had sufficient motive t attack and murder the deceased, his father, in the aforesaid background when the alleged registered disinheritance-deed was made in 1973 and in the criminal case under section 307, P.P.C. The appellant and his brother had been discharged by the trial Court in 1975, because the deceased, as complainant in that case, had not appeared to support the prosecution version against his own sons for a period of three years while the matter had remained pending from 1971 to 1975. It would not be out of place to mention here at this stage that learned counsel for the
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complainant in the accompanying criminal revision wants us to rely on the motive version as a very strong circumstantial evidence supporting or rather corroborating the ocular testimony in the instant case as against the appellant and Daud Khan, acquitted co-accused. But we have given a serious thought to this aspect of the case and in our view we do not consider the motive version as sufficiently strong supporting or corroborative piece of evidence, particularly because the criminal case under section 307, P.P.C. Was lodged against the appellant and his other brother in 1971 i.e, two years before the registration of the disinheritance-deed in 1973 and the appellant and his other brothers were discharged in the aforesaid criminal case by the trial Magistrate in 1975 because the father had not appeared as a witness to support the prosecution version against his sons. Then the other point for consideration is that the disinheritance-deed which was made in 1973, if it could be considered as providing a cause of grievance or motive to the appellant, then why did he sleep over it for a period of six years, So, in our considered opinion we do not find any force in the argument of learned counsel for the complainant to the effect that the motive, in the instant case, should be considered as a very strong circumstantial evidence in support of or in corroboration of ocular testimony in the instant case. We have already pointed out that the recovery evidence is of no corroborative value. Thus, what we are left with is the ocular testimony of sole eye-witness namely Muhammad Aslam P.W. Who is admittedly an interested witness in the sense that he is fully committed to the rival side of the family and who has been benefited financially in the instant case because of him being husband of Mst. Mehar Fatima, daughter of the deceased from his first wife. According to learned counsel for the defence this witness is, therefore, partisan and interested. Learned counsel has also taken us through the record to show that this witness is also inimical and hostile towards the appellant. He had stated in the E cross-examination that in 1973 the present appellant reported a case against him and one Rustam under section 323/148/149, P.P.C. But they were acquitted. Thereafter, Abdul Razzaq, nephew of Mst. Fateh Khatoon reported a case on the day of the present occurrence against Mst. Aaisha Bibi and her other relatives. From these pieces of evidence learned counsel pointed out that not only that this witness had personal animonsity with the present appellant, but Abdul Razzaq, another partisan, had got a criminal case registered against Mst. Aaisha Bibi, mother of the present appellant, and her other relatives. So, if this according to learned counsel his testimony should not be accepted without witness is to be considered as interested, partisan and hostile, then corroboration coming forth from an entirely independent source. Learned counsel submitted that Sardar Khan, the other eye-witness, who was cited in the instant case in the F.I.R., was also a tenant of the deceased and could have been considered as an interesting witness if produced. But he had been given up as having been won over. The thrust of the argument of learned counsel for defence in regard to the testimony of the sole eye-witness is that he had not been present at the time of the commission of crime and he had not seen the occurrence. In other words, according to learned counsel it was an witnessed G occurrence and the job could have been performed by some other enemy of the deceased, for, the deceased himself had been involved in the murder of others during his lifetime. In support of his reasoning learned counsel has taken us through the cross-examination of Muhammad Aslam P.W. Who had stated that Dost Muhammad was murdered in 1Sii1 in whose murder case Surkhru, Muhammad Khan etc. Were involved but were eventually acquitted in 1962. Thereafter, nephew of the above-mentioned Surkhru and Muhammad Khan, namely, Abdullah was murdered and in that murder case the deceased alongwith the present appellant were challaned and both of them were convicted and sentenced to life imprisonment in 1968 by the trial Court. However, after 2/3 years they were acquitted by the High Court. Thus, it is obvious that at one stage the appellant and the deceased were both co-accused in the murder of Abdullah, who was nephew of Surkhru and Muhammad Khan, who were implicated in the murder of the other son of the present deceased. Therefore,
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learned counsel is advancing the argument that the job could have been performed by some other enemy of the deceased and it was an witnessed occurrence. The argument of learned counsel to the effect that Muhammad Aslam P.W. Might have not been present on the spot is based also on some misstatements which he had made in the course of his cross-examination. He has stated in the F.I.R that there were two passages on the spot and the deceased was murdered while going along one passage whereas he was proceeding to the village from another path-way. But this is disproved by the site plan as we as by the site plan maker who had stated that there was only on passage/path-way on which the deceased was murdered and there was no other path- way and that there were standing crops on the rest the field. The next point is that according to this witness the firs shot was fired at the deceased by the appellant which hit on his lef ear, the second shot was fired by Daud Khan co-accused which hit on the chin of the deceased and the third shot was again fired by the appellant which hit on the belly of the deceased. Learned counsel states that not only Daud Khan, acquitted co-accused, had told the police at the time of his arrest that he was innocent but even the medical evidence did not support the ocular testimony of Muhammad Aslam P.W. Because the two fire-arm injuries on the chin of the deceased were exit wounds and not wounds of entry. Thus, according to learned counsel for defence this witness has been disbelieved in respect of the part which he has ascribed to Daud Khan co-accused and it was for that reason that Daud Khan co-accused was given the benefit of doubt and acquitted. The reasoning of learned counsel is that the testimony of this witness was in conflict with the medical evidence, because he was not present on the spot at the time of the occurrence, and, therefore, if his testimony has been disbelieved in respect of one innocent person, whom he was falsely implicating, it should also be disbelieved in respect of the present appellant whom he had ascribed an identical part. It is then submitted that this witness had changed and improved his statement from time to time which also indicated that it was not safe to place reliance on his testimony. In this connection learned counsel took it through his cross-examination, particularly page 19 of the printed paper-book in which these improvements had been made. Finally, it was argued by learned counsel for the appellant that the sole eye-witness, in the instant case, was not present; that he was an interested witness, who at the same time was hostile as well as partisan and, therefore, his testimony should not be accepted without strong corroboration coming forth from independent source; that since he has been disbelieved regarding the part played by the acquitted co-accused, then a very strong and independent corroboration of his testimony was necessary for sustaining conviction and sentence of the appellant; and lastly that he was even otherwise unreliable, for, he had changed or improved his statement from time to time. In this connection learned counsel placed reliance on Muhammad and Sher v. The Crown PLD 1954 FC 84 in which it was held that where for an offence of murder the evidence of the prosecution witnesses was wholly rejected as unreliable so far as most of the accused were concerned, it was not safe to rely upon the evidence of the same witnesses for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance. Reliance was also placed on Muhammad Afsar v. The Crown PLD 1954 FC 170 in which it was held that when the direct evidence of an incident involving more than one accused-persons was reduced to the statement of a single witness, and the Court was satisfied that it was false in relation to some of the accused-persons, that testimony became subject to reasonable doubt as against the remaining accused-persons as well. That doubt could not be deemed to be satisfactorily resolved unless there be against each or all of the latter persons, material corroboration from independent sources, indicating that he or they did participate in the crime. Thus, where the appellate Court itself found it impossible to accept a great part of the witness's story, believing that such part was purely fabricated, there need have been no hesitation in upholding the view formed of the witness's credibility as a whole by the trial Judge. The reliance
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was likewise placed on Yousaf v. The State PLD 1963 (W.P.) Lah. 274 in which it was held that conviction could not be based on same evidence of solitary witness believed against one accused and disbelieved against another. Finally,…
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