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Petitioner: Mst.BEVI VS Respondent: GHULAM SHABBIR AND ANOTHER
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Afzal Zullah, Muhammad Haleem, Ghulam Safdar Shah Title: Mst.BEVI vs GHULAM SHABBIR AND ANOTHER Case No.: Criminal Appeal No, 68 of 1974 Date of Judgment:1980-05-04 Reported As: 1980 SCMR 859 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave arises out of judgment dated the 1st June 1973 of the Lahore High Court, whereby Ghulam Shabbir respondent was acquitted in a case of murder. ' Three persons namely, Ghulam Shabbir, Maqbool and Ghulam Abbas were tried for the murder of Mumtaz which took place on 5-10-1969 at peshiwela. The deceased was real brother of Ghulam Abbas accused. Ghulam Shabbir and Maqbool are friends of Ghulam Abbas. There are several items in the motive for Ghulam Abbas to kill his brother. The deceased had murdered his and Ghulam Abbas's mother in 1965. The latter wanted to take revenge. Ghulam Abbas had leased out substantial area of land to Atta Muhammad P. W. And his brother who had found it unfit for cultivation and were utilising canal water meant for that land to irrigate their own land, Ghulam Abbas thinking that this would deteriorate the value of his land insisted that it should be cultivated and irrigated regularly. The lessees resisted this desire of Ghulam Abbas whereupon the dispute was referred to Muhammad Zakir Qureshi, a noteable of the locality who had arranged the meeting of the parties for settlement; wherein be had also summoned Mumtaz deceased because he was siding with the lessees. Mother of the deceased (and Ghulam Abbas) had sold some land. They had filed a pre-emption suit through their sisters which was decreed. Although the pre-emption price was stated to have been paid by both the brothers, Ghulam Abbas kept this land for his exclusive use without sharing the income with the deceased. Who was insisting on his share. The sisters of the deceased (and Ghulam Abbas) had inherited some land from their father which was in possession of Ghulam Abbas. The deceased wanted him to release the land. He resented this act of his brother. On account of all these reasons, the prosecution case was, Ghulam Abbas hatched
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a conspiracy with Ghulam Shabbir and Maqbool accused, in consequence whereof he abetted the crime which was committed by Ghulam Shabbir and Maqbool in furtherance of the common intention of both of them. ' Abdullah P. W. 14 who is an eye-witness and also the first informant gave the following version of the occurrence in his deposition "A day prior to the occurrence Nawabzada Muhammad Zakir Qureshi sent for Ghulam Abbas accused, Muhammad Aslam and Atta Muhammad lessees and Mumtaz Hussain deceased. On the day of occurrence at about peshiwela I myself and Mumtaz Hussain deceased proceeded from village Kamala towards Radhan. Mumtaz Hussain deceased was driving his bicycle and I was sitting on his carrier. We were going by the side of Rajbah Farooka. When we reached the Radhan bridge Shabbir and Maqbool accused came there from the eastern side. They were earlier sitting in a low lying place and they came towards us. Shabbir accused had a '12 bore gun with him. He was also wearing a bandoliar. Maqbool accused was empty handed. Maqbool accused told Mumtaz Hussain deceased that Ghulam Abbas accused had already reached village Radhan and that he was waiting there. We were going on bicycle and the accused were seven or eight karams behind us. Shabbir accused then aimed his gun at us. I got down the bicycle and slipped away towards the canal. Shabbir accused then fired at Mumtaz Hussain deceased which hit the latter on the back of his left shoulder. Mumtaz Hussain deceased fell down and Shabbir accused came forward. He then fired two more shots at the deceased. The occurrence was also witnessed by Muhammad and Muhammad Yousaf P. Ws. ' The two other eye-witnesses mentioned by Abdullah, namely, Yousaf and Muhammad supported the prosecution case in their depositions. Evidence was led to show that a .12 bore licensed gun recovered from and belonging to Ghulam Shabbir respondent had been used in the crime because two empties recovered from the spot were, according to the Ballistic Expert, fired from this gun. Evidence was also led to show that on 12-10-1969 at the time of arrest of Maqbool and Shabbir, blood-stained clothes were removed from their persons. They were found to have been stained with human blood. Several witnesses were examined to establish conspiracy between Ghulam Abbas and Ghulam Shabbir and Maqbool. The defence plea was of denial. Ghulam Abbas admitted that Mumtaz deceased was prosecuted for the murder of his mother but denied this having caused any grudge because he had appeared as a witness in the defence of his brother. Other items of motive were also denied. He attributed his false implication to Mian Muhammad Zakir Qureshi "on account of party faction". Ghulam Shabbir denied the recoveries as also his connection with Ghulam Abbas and participation in the occurrence. He explained that Muhammad Zakir Qureshi involved him in the case because Sultan Ali stated to be a cousin of Ghulam Shabbir's father had contested election with Mian Muhammad Zakir Qureshi and his father. Maqbool also denied the incriminating material and attributed his implication in the case "due to party faction". No evidence was led in defence. ' The learned trial Judge vide judgment dated 3-12-1972 placed implicit reliance on all the three eye-witnesses. The motive and recoveries, except those of blood-stained clothes, were also relied upon and evidence regarding abetment and conspiracy was accepted. Accordingly, all the accused were found guilty of murder-sections 34 and 109, P. P. C. Were applied against Maqbool and Ghulam Abbas respectively. Ghulam Shabbir respondent and Ghulam Abbas were sentenced to death, while Maqbool was awarded transportation for life. ' On appeal and reference the High Court acquitted all the accused. The eye-witnesses were treated as chance witnesses. Abdullah was further considered as an interested witness because the deceased had borrowed Rs, 1,000 from him and that he was also the servant of the deceased. It was also observed about YousaF that he was a Reiyyat of Muhammad Zakir Qureshi who was, as alleged by the defence, opposed to them on account of party faction in the village. About
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Muhammad, it was observed that he too "had an axe to grind against the appellant as his brother Fida Hussain had contested elections against the brother of Ghulam Abbas". The learned Judges then observed that "apart from the fact that the three eye-witnesses are to a lesser or a greater degree interested in seeing the appellant harmed, their testimoncy stands contradicted by the medical evidence on record. According to all of them the first shot fired by Shabbir appellant which hit him in his back had been fired from a distance of 6 to 8 karams. But the post-mortem examination revealed that the deceased did not sustain any injury on his back and none of the shots received by him had been fired from a distance of more than six feet. It, therefore, appears that none of the witnesses claiming to have witnessed the occurrence did in fact witness it". The learned Judges after discarding the recovery of blood-stained clothes when dealing with the recovery of the crime empties and the gun and matching thereof observed that "similarly the matching of the crime empties allegedly recovered from the scene of occurrence with the gun belonging to Shabbir appellant appear to be nothing but a slight of hand performed by the Investigating Officer." Then the cases of Maqbool and Ghulam Abbas were separately discussed and it was found that there was not enough evidence to convict them by application of sections 34 and 109, P. P. C. ' On the petition of widow of Mumtaz deceased, this Court granted leave to appeal against the acquittal of Ghulam Shabbir respondent only, to consider the points raised from the appellant's side: "that the High Court has misread the medical evidence as a carreful reading of the same would show that injuries Nos. 3, 4, 6, 7 and 8 were such as could easily have been caused by a shot fired at the back of the deceased, if he turned a little to the left immediately before receiving the shot the recovery of the crime empties from the spot and their matching with the gun produced by Shabbir could not be ignored, and that the High Court has given no reasons at all for rejecting this piece of evidence-the crime empties had already reached the examiner of fire-arms on the 9th of October 1969, whereas the gun was recovered three days later, on the 12th October 1969 and the recovery of the gun was not denied by Shabbir at the trial." ' With the help of the learned counsel we have gone through the evidence. Some broader aspects of the case were highlighted by the learned Assistant Advocate-General in addition to the detailed analysis of the evidence. According to him, although Yousaf P. W. Can be treated as chance witness, Muhammad P. W. Who owned land and resided in a dera near the place of occurrence was a natural witness, and even if Abdullah P. W. Is treated as an interested witness, Muhammad's deposition would supply the corroboration. He also relied on the fact that the crime empties recovered from the spot had matched with the gun of the respondent. He emphasised that there was no motive. With any of the eye-witnesses to falsely implicate Ghulam Shabbir, notwithstanding the fact that Ghulam Abbas, the acquitted accused had enmity with the deceased. ' Learned counsel for the respondent tried to show that the F. I. R. Was delayed; that Muhammad Zakir Qureshi was helping the police in providing them with residence and transportation and that there being party faction between Muhammad Zakir Qureshi and Ghulam Abbas as also Ghulam Shabbir respondent on account of election, they were falsely implicated by him. It was also pointed out that Muhammad P. W. Is uncle and father-in-law of Atta Muhammad P. W. Who had enmity with Ghulam Abbas accused. Therefore, Muhammad P. W. Was not a disinterested witness. He criticised the ocular evidence by making reference to omission of Yousaf's name by Abdullah in his earlier statements and pointing out some improvements with regard to the conspiracy between Ghulam Abbas and other accused. The main argument of the respondent's counsel however, was that the medical evidence contradicted the ocular account, therefore, it could not be accepted. Even if the criticism about individual witnesses is ignored with regard to the gun, learned counsel relied upon an admission made by the Sub-Inspector that at the time of its recovery its striking pin was found in a damaged condition and that it was not in working order. Therefore, there was no
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justification for treating it as a piece of corroboration. He also emphasised the rule laid down by this Court with regard to treatment of evidence in appeals against acquittal. Lastly, he contended that the acquittal of Ghulam Abbas having been maintained by the Supreme Court in refusing to grant leave against him should he given full effect in that the motive for which Ghulam Shabbir is alleged to have murdered Ghulam Abbas's brother is no more available to the prosecution. Thus the same having failed the extreme penalty of death should not be exacted. The place of occurrence is riot denied. It is on the service road along a canal bank near a bridge. Blood as also a bicycle belonging to the deceased were recovered from there. With the cycle there was a bag Exh. P. 9 which contained documents Exh. P. Y and P. Z. The documents relate to the background of enmity between Ghulam Abbas and the deceased. A Muhammad eye-witness claimed to be resident of a dera situate in his own land which is adjacent to the place of occurrence. His claim that he had that he had no house in the village, he lived in the dera, he owned land on both sides of the canal doss to the place of occurrence and that he was on the round of his crop at the time of occurrence has not been successfully refuted. He is not only a natural witness but also independent and disinterested in so far as the respondent is concerned. His relationship with Atta Muhammad could have been used if the case being considered was against Ghulam Abbas. There is nothing on the record to show that Atta Muhammad and/or Muhammad P. Ws. Had any interest against the respondent. It is his own case in his statement made under section 342, Cr. P. C. That he had no connection with Ghulam Abbas. Moreover, the case of conspiracy qua Ghulam Abbas having failed, the same cannot be reintroduced for purpose of dubbing the eye-witnesses as interested against Ghulam Shabbir as well. Learned counsel for the respondent also pointed out an admission by Muhammad P. W. That his brother Fida Hussain had contested election against the brother of Ghula1n Abbas. This also for the aforementioned reason would not render him as an interested witness against Ghulam Shabbir respondent. If the election contest was between a brother of Ghulam Abbas and a brother of Muhammad P. W., the brother of Ghulam Abbas would also be a brother of Mumtaz deceased because they are themselves brothers inter se. If there was any party faction, on account of this election, Muhammad would be in tile faction opposite to that of the deceased and Ghulam Abbas. On the basis of the reasoning advanced by the learned counsel, Muhammad would on account of this so-called factionalism, have interest both against the deceased as also against Ghulam Abbas but in reality this would not be the result. The deposition of Muhammad shows that he would not falsely implicate even Ghulam Abbas simply because one of his brothers contested election against a brother of the witness muchless to falsely implicate Ghulam Shabbir regarding whom there was not even an election dispute. In fact nothing was suggested to Muhammad P. W. As to why he was, if so, falsely implicating Ghulam Shabbir. Same consideration would apply to the so- called interest of Abdullah vis-a-vis Ghulam Shabbir respondent. It cannot be denied that he was either a servant or a weighman (Tolla) of the deceased. He could thus be treated as interested in so far as Ghulam Abbas acquitted accused is concerned, but not qua Ghulam Shabbir. Nothing has been suggested as to what motive he had to falsely implicate him. ' It has been attempted to make capital out of admission by another witness (Muhammad Nawaz P. W. 19) to the effect that father of Muhammad Zakir Qureshi had lost an election against Mian Sultan Ali Nagiana and as Ghularn Shabbir respondent claimed that the said Sultan Ali Nagiana was a cousin of his father, therefore, it should be presumed that Muhammad Zakir Qureshi falsely implicated Ghulam Shabbir in this murder case. The connection is too remote to sustain the argument. It has not been established on the record despite suggestions to some witnesses which were not accepted, that Sultan Ali Nagiana is in any way related to Ghulam Shabbir. Moreover, Ghulam Shabbir in his statement before the Committing Magistrate had asserted that the contest was between Sultan Ali Nagiana and Zakir Qureshi himself while in his statement before the trial
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Judge he asserted that the election was between Sultan Ali Nagiana and father of Muhammad Zakir Qureshi and further that in another election the so-called party of Ghulam Shabbir contested election against Muhammad Zakir Qureshi. This would further show .That the so-called election rivalry was only put forward as an excuse otherwise there is no substance in it. Learned counsel in the alternative contended that even if Muhammad Zakir Qureshi had no direct enmity against Ghulam Shabbir, there was a party faction involving two opposite-parties one of Muhammad Zakir Qureshi and other of Ghulam Abbas. Firstly, there is no evidence to support the assertion. Secondly, there are circumstances to the contrary showing that there was no between Ghulam Abbas and Muhammad Zakir Qureshi because he had accepted the arbitration of Muhammad Zakir Qureshi in his dispute over land with Atta Muhammad P. W. And in fact the parties were to attend a panchayat proceedings headed by Muhammad Zakir Qureshi on the day of occurrence. Be that as it may, there is not enough material on the record which can be treated as legal evidence to substantiate the assertion that Muhammad Zakir Qureshi had falsely implicated either Ghulam Abbas or the other accused Ghulam Shabbir respondent and Maqbool. If he was to falsely implicate anybody on account of the so-called election rivalry then he would have chosen Sultan Ali Nagiana and not a person who claimed to be related to him through an uncertain and unsubstantiated link. The only remaining circumstance that Muhammad Zakir Qureshi provided transport and other facilities to the police during the investigation of this case is of no help to the respondent because it is apparent from the evidence that he is noteable of the locality and the customary facilities provided by him to the police would not give rise to a presumption that he was instrumental in falsely implicating the respondent or any other accused. Indeed he had no motive to do so. ' As already noted Abdullah P. W. Had no motive to falsely implicate Ghulam Shabbir. His claim that he was going with Mumtaz deceased to attend the panchayat is not unnatural, particularly, if it is assumed that he was either his tolla or servant. He lodged the F. I. R. At 5-30 p.m. At the Police Station which is at a distance of six miles from the place of occurrence. If the occurrence took place at peshiwela, even if it be assumed that vehicular transport might have been used, it would not be possible to presume that the F. I. R. Was delayed in such a manner as to permit an assumption that time we spent for false implication. The time gap was not such that if Abdullah had seen the occurrence, his presence could have been procured from the place of residence of the deceased for purpose of sending him to lodge the F. I. R. ' There is no justification for assuming that Abdullah had any interest against the respondent. But assuming for the sake of argument that there was any witness's interest the deposition of Muhammad P. W. Furnished sufficient corroboration. Not only this, the recovery of the gun with which the crime empties matched also furnishes material to satisfy the Court that Abdullah had not falsely named the respondent in the F. I. R. The admission of the Sub-Inspector with regard to the defective condition of the striking pin of the gun is of no help to the respondent. What Obaid Ullah Khan, S. H. 0. Had stated was that "the gun Exh. P. 10 was in such a condition that the striking pin would not come out in its normal length". In the recovery memo Exh. P. L. It was mentioned that the striking pin would not come out despite pressing the trigger. But it is also mentioned therein that there were fresh small cuts on the inner side of the barrel. There is nothing in the evidence to show that there was such a defect in the gun that it would not fire a shot. No demonstration was sought by defence. This assumption would be further strengthened from the deposition of Bashir Ahmed, Fire- arm Expert, who stated that the firing pin of the weapon was damaged and thus was not in its "natural condition in the present state of the weapon". But he also asserted that "the damage suffered by the pin is not due to the natural process of wear and tear but self induced". The expert categorically stated that he fired the test empties with the gun in question and explained under
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cross-examination that the striking pin notwithstanding the recent damage by the process of filing "did work if the trigger was pulled". He did not recollect if he had seen any fresh cuts in the barrel noted by the Sub-Inspector at the time of the recovery. But the expert asserted "however, annular rings were found in the chamber of the gun which impressed the tubes of the test empties". The expert was cross-examined at length. His answers were not the product of imagination. They find support from his report submitted by him nearly a years prior to his examination in Court. Otherwise too, there is nothing in his deposition to suspect that he was hostile to the accused or that he had any interest in the deceased. The fact is that the deceased was murdered and the case was being prosecuted by the State against his own brother. However, there is not even an iota of suggestion that the expert had aligned with the prosecution for a motive so as to falsely depose against the respondent in a case of capital punishment. The evidence does not disclose that the Sub-Inspector had fired the crime empties from the gun in question before sending them to the expert. In fact the gun was recovered subsequently. Keeping in view the above-noted circumstances, it is abundently established that the crime empties were fired from the licensed gun of the respondent which, according to the evidence, was produced by him. There is nothing therein to suggest that his father and brother had produced the gun. The self-induced fresh damage to the gun prior to its production before the police also is of no help to the respondent. ' Although there is very strong evidence against Ghulam Shabbir in the deposition of independent witness, namely Muhammad, and the deposition of Abdullah which has been corroborated by other strong evidence and for that matter any opinion of the Doctor with regard to the injuries on the person of the deceased which might tend to come in conflict with the ocular account might be ignored, notwithstanding the same, a careful scrutiny of the medical evidence would show that there is no serious contradiction. There are two aspects which have been highlighted from the defence side at different stages in this behalf. Before the trial Court the argument was raised and met as follows :- "The learned counsel for the defence has pointed out that the medical evidence does not corroborate the ocular evidence. According to him the first shot was fired from a very close range as the edges of the wound (Injury No, 6) were scorched. The distance from which the first shot was fired as given by the P. Ws. Was 5/6 karams. It appears from the evidence that after aiming the gun Shabbir accused rushed towards the accused. In fact the distance stated by the P. Ws. Is that from which the accused aimed his gun. The shot would have been fired when the accused had come near the deceased. It, therefore cannot be said that the medical evidence does not corroborate the testimony of eye-witnesses." ' In the High Court in addition to the questioh of distance an other argument was advanced namely that "according to all of them (the eyewitnesses) the first shot fired by Shabbir appellant which hit him in his back had been fired from a distance of 6 to 8 karams. But the post-mortem examination revealed that the deceased did not sustain any injury on his back and none of the shots received by him had been fired from a distance of more than six feet". Thus the question whether any of the injuries suffered by the deceased could have been caused from a shot fired from his back side also was raised, notwithstanding the fact that at the trial stage it was not considered as an impossibility. At the leave granting stage, the question was posed whether some of the injuries suffered by the deceased could not "easily. Have been caused by a shot fired at the back of the deceased, if he turned a little to the left immediately before receiving the shot". The possibility that the deceased might have made some movement as a result of which he might have received the shot at a location different from the aimed one, was assumed even by the defence when cross- examining the Doctor who had stated that "it is also correct that at the time of occurrence if the deceased kept his arm in front then these 7, 8 injuries may be inflicted from front". If the movement of arm of the deceased could lead to a change of opinion by the Doctor with regard to the
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direction, then why it is not possible to make another assumption that a slight body jerk swerving to the left would have exposed the side of the deceased towards his back side from where the assailent had aimed a shot at him. But it is not necessary to go to the extent of making that assumption because there are injuries on the person of the deceased namely Nos. 7 and 8, which according to the diagram and description thereof could have been suffered by the deceased when the shot was aimed at from his back side. Injury No, 7 is a circular lacerated wound of entry on the middle of outer aspect of left arm. Injury No, 8 is a circular lacerated wound of entry on the left arm outer aspect of lower half. The edges of the wounds were scorched. The…
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