Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE VS Respondent: SALEHOON--Accused
Court Name: Lahore High Court Judge(s): Sheikh Anwarul Haq Title: THE STATE vs SALEHOON--Accused Case No.: Criminal Appeal No, 696 of 1968 Date of Judgment:1970-07-13 Reported As: PLD 1971 Lahore 292 Result: Acquittal set aside
JUDGMENT
JUDGMENT This case has been laid before me under section 429 of the Code of Criminal Procedure on account of a difference of opinion having arisen between my learned brothers Muhammad Afzal Cheema, J. and M. A. Zullah, J. on the question whether the acquittal of respondent Salehoon of an offence falling under section 302/34, P. P. C. be set aside or not. 2. The relevant facts are that on the morning of the 15th of October 196h six members of the same family, namely, Haji Haibet, his wife Mst. Khan Bibi his son Manzoor, and his three daughters Mst. Fateh Bibi, Mst. Amna Bibi and Mst. Sahib Bibi, were murdered in quick succession in or near their house in Chak No, 357/G. B. in the jurisdiction of Police Station Jaranwala in the Lyallpur District. The prosecution alleged that the murders were committed by the respondent Salehoon, his three sons Muhammad Khan, Bashir and Muhammad Ashraf, his two sons-in-law Umra and Yusuf, his brother-in-law's son Noor Muhammad and his nephew's son Mansha. The learned Additional Sessions Judge at Lyallpur, who tried the case, convicted only the three sons of Salehoon and sentenced them to death, but acquitted Salehoon, Umra, Yusuf, Noor Muhammad and Mansha. He held that Salehoon was entitled to the benefit of doubt, whereas Umra, Yusuf, Noor Muhammad and Mansha had been falsely implicated. 3. When the case came up before a Division Bench of this Court for confirmation of the death sentences under section 374, Criminal Procedure Code, and for the disposal of the appeal filed by the convicted persons, the learned Judges directed the issuance of a notice to the acquitted accused to show cause why they should not be re-tried. in the meantime, the State also filed an appeal against their acquittal. 4. Both the learned Judges, before whom all these matters came up for final hearing, are agreed
---
## Page 2
that the conviction of the three sons of Salehoon, namely, Muhammad Khan, Bashir and Muhammad Ashraf, under section 302, read with section 34 of the Pakistan Penal Code should be maintained and their death sentences should be confirmed. Their Lordships are further agreed that the finding of the trial Court that Umra, Yusuf, Noor Muhammad and Mansha were falsely implicated could not be sustained, but the acquittal of these four persons was, however, justified on the ground that they were entitled to the benefit of doubt. With regard to Salehoon the conclusion reached by M. A. Zullah, J. is that his acquittal should be set aside, he should be convicted under section 302/34, P. P. C. and sentenced to transportation for life ; whereas the opinion expressed by Muhammad Afzal Cheema, J. is that is the absence of corroborative evidence it would not be safe to convict Salehoon and, therefore, his acquittal should be maintained. 5. In view of the very elaborate judgment delivered by my learned brother M. A. Zullah, J. it is not necessary for me to describe at any length the details of the crime and of the evidence relied upon by the prosecution, except to the extent necessary for resolving the difference of opinion with regard to the guilt of Salehoon. The deceased Haji Haibet was a brother of -Salehoon, and his three murdered daughters Mst. Fateh Bibi, Mst. Amna Bibi and Mst. Sahib Bibi were married to the three convicted sons of Salehoon. Salehoon's daughter Mst. Jannat was married to Haji Haibet's son Manzoor deceased. However, Mst. Jannat had not borne any child during five years of marriage, with the result that her husband and his family had started contemplating a second marriage for Manzoor, especially because he was their only son. This led to bad blood between Manzoor and Mst. Jannat, and the latter came away from her husband's house to live with her father and brothers. This incident is said to have happened seven or eight months before the present tragedy. The houses of the two brothers Haji Haibet and Salehoon are separated only by an intervening wall. As is usual in such exchange marriages, the three sons of Salehoon also sent away their wives to their parents. It is said that two days prior to the occurrence Muhammad Khan Lambardar (P. W. 12), Jehana (P. W. 14) and Yaqoob (P. W. 17) constituted themselves into a panchayat so as to effect a conciliation betweenthe parties. During the parleys the respondent Salehoon agreed to send his daughter to the house of her husband Manzoor deceased provided Haji Haibet agreed to transfer some land in her name, presumably as a security for maintenance as her husband was wanting to re-marry. It is stated that this condition was not acceptable to the late Haji Haibet, but the negotiations were not broken off, and the panchayat dispersed so as to meet again. It was during this recess in the negotiations that the present murders were committed, wiping out the entire family of Haji Haibet. 6. At the trial another motive was brought out in cross-examination by Ahmad Khan (P. W. 10) to the effect that the wives of the convicts Muhammad Khan and Muhammad Ashraf were carrying on an illicit liaison with their cousins Yusuf and Gulla (sons of their maternal uncle) who used to visit them at the house of Haji Haibet. Vaginal swabs taken at the time of post-mortem examination of the dead bodies of the three daughters of Haji Haibet were found, on Chemical examination, to be stained with semen, thus giving support to the allegation that all the three daughters were indulging in extra-marital sexual relations, after separation from their husbands. 7. According to the prosecution, Manzoor Hussain and his mother Mst. Khan Bibi were the first to be attacked when they were proceeding from their house to their fields and were passing by the Flour Mill of one Rashid Ahmad situate a little beyond the house of Isa (P. W. 16). The assailants were Salehoon and the remaining seven accused persons, out of whom Muhammad Khan and Ashraf were armed with guns whereas the rest were carrying hatchets. The initial challenge was thrown by the convict Muhammad Khan by shouting to Manzoor that they would arrange his second marriage that day. It is alleged that when Manzoor and his mother Mst. Khan Bibi fell down after receiving gun-shot injuries, Salehoon and Mansha accused gave hatchet injuries to Manzoor
---
## Page 3
deceased, whereas Umra, Yusuf and Noor Muhammad inflicted similar blows on Mst. Khan Bibi. 8. The second phase of the incident relates to the murder of Haji Haibet's daughter Mst. Sahib Bibi who was married to the convict Muhammad Ashraf. It is alleged that having finished Manzoor and his mother Mst. Khan Bibi all the accused persons were proceeding towards the house of Haji Haibet, declaring that they would finish the entire family, when they say that Mst. Sahib Bibi was coming towards them. She was fired upon by her husband Ashraf, followed by Muhammad Khan. She was subsequently attacked with hatchets by Umra, Y usaf and Noor. No overt act seems to have been assigned to Salehoon with regard to the murder of Mst. Sahib Bibi. 9. All the accused persons then reached the house of Haji Haibet, who was at that time sitting on a charpoy in the courtyard along with his wife's brother Yaqoob (P. W. 17). Haji Haibet's daughter Mst. Fateh Bibi deceased was churning milk in the same courtyard and his daughter Mst. Amna Bibi was sitting outside the eastern room. It is alleged that Muhammad Khan convict fired two shots at his wife Mst. Fateh Bibi, whereas Muhammad Ashraf convict fired at Haji Haibet. At that time Mst. Amna Bibi deceased raised an alarm, whereupon she was also fired at by Muhammad Khan and Muhammad Ashraf. It is said that Salehoon and others then inflicted hatchet injuries on Mst. Fateh Bibi as well as on Haji dHaibet. The assailants are said to have carried away an infant son of Mst. Sahib Bibi and a minor daughter of Mst. Fateh Bibi. 10.It will be seen that, apart from sharing the common intention of the other assailants, Salehoon is alleged to have actively participated in these murders by inflicting hatchet injuries on Manzoor, Mst. Fateh Bibi and Haji Haibet. In support of these allegations the prosecution has relied upon the ocular evidence of the first informant Muhammad Moosa (P. W. 15), a neighbour named Isa (P. W. 16), Yaqoob (P. W. 17) and Muhammad (P. W. 18). Then there is the recovery of a blood-stained hatchet (Exh. P. 15) at the instance of Salehoon on the very next day of the incident, although on chemical examination the origin of the blood could not be ascertained as the same had disintegrated. Finally, reliance is also placed on the surrounding circumstances, namely, the community of motive, the admitted presence of Salehoon in his house at the time of the murders and his failure to make any efforts whatsoever to dissuade his sons and other relations from wiping out the family of his brother Haji Haibet. 11.In his statement under section 342, Cr. P. C. Salehoon admitted that his daughter Mst. Jannat Bibi was issueless, but stated that his deceased son-in-law Manzoor had never asked him about a second marriage, adding that he would have agreed to such a proposal, if approached in this behalf. In reply to all the other questions he simply denied the allegations, stating that he had been implicated due to the enmity of the prosecution witnesses. He did not produce any evidence in defence. During the course of his statement before the committing Magistrate, Salehoon had admitted that his daughter Mst. Jannat Bibi had returned to his house and his sons Muhammad Khan, Bashir and Muhammad Ashraf had sent away their wives to their parental home seven or eight months before the occurrence. 12.The main contention raised on behalf of the State is that there is no reason whatsoever for disbelieving the eye-witness account given by Muhammad Moosa (P. W. 15) and Isa (P. W. 16), whose evidence is clearly sufficient to warrant the conviction of Salehoon without any further corroboration. It is submitted that they are equally related to both the parties and had no motive to falsely implicate Salehoon who is admittedly an elderly person of about 70 years of age. It is next contended that even if any corroboration was required, it was available in the recovery of the blood-stained hatchet and the other surrounding circumstances appearing on the record, which establish beyond reasonable doubt that Salehoon was very much a party to the crime. 13.Before entering upon the merits of the case I would like to deal with the preliminary question touching the duty and powers of the third Judge acting under section 429 of the Criminal Procedure Code. It is submitted by Ch. Fazal Elahi, the learned counsel for the respondent Salehoon,
---
## Page 4
that in the event of one of the Judges of the Division Bench forming an opinion favourable to the accused the third Judge should lean in favour of acquittal as a matter of prudence, especially when the difference of opinion has arisen in an appeal against acquittal. In support of this proposition the learned counsel has placed reliance on Re : Narsiah and others which, in turn, appears to be based on Empress v. Debi Singh and Khetri Bewa v. The State. 14.The relevant observations in the Andhra Pradesh case relied upon by the learned counsel for the respondent are : "Under sections 378 and 429 the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion. The words 'after such hearing, if any, as he thinks fit' entitle him in appropriate cases to limit the scope of the hearing. Unless there are strong and compelling reasons to come to the conclusion that the opinion of the Judge favouring an acquittal is perverse, the golden rule to be followed by the third Judge is to give the benefit of doubt to the accused. The observance of such a rule does not amount to an abdication of his functions as a Judge under sections 378 and 429 of the Criminal Procedure Code." 15.Although this view derives support from the two cases mentioned above, yet it runs counter to the view taken in Empress v. Bundu and Re : Ravipati Sitaramayya. In this last mentioned case it was observed that "it is the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him for his opinion. Neither section 378 nor section 429 contemplates the dice being loaded heavily in favour of either view. The opinion expressed by some Judges, namely, that the normal disposal by a third Judge should be one of agreement with the opinion of acquittal, is not correct. It would be tantamount to a judgment of acquittal in practice prevailing over a judgment for conviction". 16.This question was considered at some length by A. S. Faruqui, J. in Khurdoo and others v. The Stateand the conclusion reached was :- "I am, therefore, of the view that having regard to the clear provisions of the two sections of the Code, which are identical, when the case is laid before the third Judge on difference of opinion the whole case is before him, and while there is no doubt that he is bound to give due consideration to the fact that another Judge of the same Court had reached the conclusion in favour of the accused, I am not prepared to say that he cannot hold otherwise except upon a finding that that view is perverse." 17.I find myself in respectful agreement with the vie taken by Faruqui, J. in the case just cited. Speaking with great respect to the learned Judge who decided the case Re : Narsiah and others in the Andhra Pradesh High Court, it seems to me that there is an inherent contradiction in saying, on the one hand, that the whole case is before the third Judge and he is at liberty to examine the whole evidence for himself and deliver his opinion ; and, on the other hand, laying down the "golden rule" that he should favour the opinion of acquittal recorded by one of the differing Judges before whom the case comes up in the first instance. It is clear that such a rule would have the necessary effect of circumscribing the powers and judgment of the third Judge in violation of the clear language of the statute. It is also further clear that such a rule would, in effect, amount to prescribing that in the event of a difference of opinion between the two Judges comprising the Court of 4 Appeal the accused shall either be acquitted or that his acquittal shall not be interfered with in an appeal under section 417 of the Code. Such an interpretation is not warranted by the statute, and would in fact render nugatory the provisions contained in sections 378 and 429, Cr. P. C. I consider, therefore, that in the present reference I have the power, and it is my duty, to examine the whole case afresh so as to form my own opinion with regard to the guilt or innocence of the1 2 3 4 5 6
---
## Page 5
respondent Salehoon. It goes without saying that due weight has to be attached to the reasons given by the two learned Judges of the Division Bench in support of their respective opinions. 18.As the matter relates to an appeal against acquittal under section 417 of the Code of Criminal Procedure, it is appropriate at this stage to refer to the rule laid down by their Lordships of the Privy Council in Sheo Swarup and others v. King-Emperor -a rule which still holds the field--that : "It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code, and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." 19.I now turn to an examination of the evidence available on the record to connect the respondent Salehoon with the crime. As already stated, there is, in the first instance, the ocular evidence of four persons, namely, Muhammad Moosa (P. W. 15), Isa (P. W. 16), Yaqoob (P. W. 17) and Muhammad (P. W. 18). The trial Court as well as the two learned Judges of the Division Bench have disbelieved Yaqoob and Muhammad. Nothing has been said before me by the learned counsel appearing for the State against this view. However, the evidence of the remaining two witnesses has been accepted throughout, and I see no reason to hold otherwise. 20.Muhammad Moosa (P. W. 15) is the person who made the first information report at Jaranwala Police Stationat 9-30 a.m. after covering a distance of eight miles. The occurrence having taken place at about 7-00 a.m., the report was made without any avoidable delay, and all the necessary details of the crime were mentioned therein. During lengthy cross-examination nothing whatsoever has been brought out to discredit, or to show any inherent weakness in his. testimony. He is a paternal cousin and next-door neighbour of Salehoon as well as the deceased Haji Haibet. It is conceded by the learned counsel for the respondent that this man had no motive whatsoever to falsely implicate Salehoon or the other members of bis family. The only criticism made against him is that he is somewhat more closely related to the deceased Haji Haibet than to Salehoon on account of the fact that he is the son of Mst. Fateh Bibi daughter of Ismail who was a cousin of the deceased Mst. Khan Bibi. It is submitted by Ch. Fazal Elahi that this aspect of the matter has been overlooked by both the learned Judges who have dealt with this case in the first instance. I am not at all impressed by this argument for the reason that Muhammad Moosa having no motive or enmity whatsoever to falsely implicate Salehoon and his sons etc., the fact that from his mother's side he is somewhat more closely related to the murdered wife of Haji Haibet does not, in any manner, affect his credibility. It has been laid down time and again that in order to describe a witness as an interested witness one has to see not merely his relationship with one party or the other, but also the fact whether he has any motive for false implication of the accused. Moosa being more or less equally related to the parties from his paternal side, I think he has rightly been7
---
## Page 6
regarded as a dependable witness. He has seen the occurrence from the beginning to the end and he has ascribed a specific part to the respondent Salehoon, as to the other accused persons involved in this case. 21.More or less the same remarks apply with regard to the other eye-witness Isa. He is also related to the parties from his paternal side, being the grandson of Daim, who was the brother of Qaim, the father of the deceased Haji Haibet and the respondent Salehoon. It was, however, submitted by the learned counsel for the respondent that here again there was closer relationship between this witness and the family of the deceased for the reason that Isa's mother Mariyam is the daughter of Khan, a brother of the deceased Mst. Khan Bibi. I have already observed, while discussing the evidence of Muhammad Moosa, that this relationship, by itself, is not sufficient to cast any doubt on the credibility of the witnesses for the reason that they have no motive whatsoever to falsely implicate Salehoon who is an elderly unele to them, by relationship, from their paternal side. No inherent contradiction or weakness has been brought out on the record in the evidence of this witness as well. 22.I consider that on the basis of the ocular evidence of Muhammad Moosa and Isa, Salehoon should be convicted. The question is whether any justification is made out, in the peculiar circumstances of the case, not to accept the eye-witness account given by these two men as regards the part played by Salehoon in the entire transaction. 23.In the first place, there is, of course, the fact that the acquittal of four of the accused persons, namely, Mansha, Umra, Yusuf and Noor Muhammad, is being maintained by both the learned Judges of the Division Bench by giving them the benefit of doubt. I have already stated that in this behalf they have modified the finding recorded by the learned trial Judge to the effect that these four persons were falsely implicated. This is, therefore, not a case where the ocular evidence is being rejected in respect of any of the accused on the ground that they were knowingly and intentionally falsely implicated by the prosecution witnesses. In these circumstances, I am in respectful agreement with Zullah, J. that it is not necessary to insist on corroboration of the evidence given by the eye-witnesses. 24.However, even if as a rule of precaution and safety one were to look for corroboration, it is to be found in the several circumstances proved on the record against the respondent. The first and foremost is the community of motive between Salehoon and his sons. It is clear that the respondent was aggrieved by the desire of his brother Haji Haibet and his family to arrange a second marriage for the deceased Manzoor, to the detriment of Salehoon's daughter Mst. Jannat. It is in evidence that negotiations for setting the matter had failed, primarily owing to Haji Haibet's refusal to transfer some land to Mst. Jannat for her maintenance in the event of her husband's second marriage. A further consequence of the break-down of negotiations between the two families was that the wives of three sons of Salehoon had gone away from their husbands. These circumstances must have clearly created bitterness between the two families, and this bitterness could not be confined merely to the three convicted sons of Salehoon. In the context of our social environment Salehoon could not have remained unaffected by all these circumstances. 25.The second motive brought out at the prosecution, namely, the immorality of the three daughters-in-law of Salehoon, is also one which must have affected the respondent. It has been stated in the evidence that the deceased Haji Haibet and his son Manzoor as well as his wife Mst. Khan Bibi did not stop the visits of Mst. Khan Bibi's two nephews even though protests were lodged in this behalf by the husbands of the three murdered women. The two brothers' houses being next- door to each other and each family being fully involved in the matrimonial disputes which had unfortunately arisen between them, I cannot accept the contention that Salehoon was unaware of this state of affairs. I am, therefore, of the view that Salehoon must have fully shared the motives and desires of his sons in this matter.
---
## Page 7
26.The learned trial Judge has expressed the view, in paragraph 72 of his judgment, that Salehoon could not have any motive to cause the deaths of his brother and his own son-in-law, as they were closely related to him. In expressing this opinion the learned trial Judge seems to me to have completely overlooked the fact that Salehoon being the head of his family, was fully involved in the dispute that was going on between his daughter and son-in-law, and the resultant dispute between his sons and their wives. If indeed the relationship between the parties was a deterrent against the commission of the murders in question, it should have equally applied to the sons of Salehoon who stand convicted of these murders. The learned trial Judge has himself accepted the allegation that the three sons of Salehoon murdered their own wives as well as their paternal uncle and his wife, and their paternal cousin Manzoor. In these circumstances, it cannot be said that Salehoon had no motive whatsoever to cause these deaths. The…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.