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Petitioner: MAHANDA AND Others VS Respondent: The STATE
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Haleem, Ghulam Safdar Shah, Durab Patel Title: MAHANDA AND Others vs The STATE Case No.: Criminal Appeal No. 64 of 1974 Criminal Appeal No. 483 of 1972 Date of Judgment:1979-11-25 Reported As: 1981 SCMR 23 Result: Appeal allowed
JUDGMENT
JUDGMENT DORAB PATEL, J.-Murtaza and Muhammad Ahmad, brothers of the witness Yahya, who lodged the F. I. R., were killed in village Gohar, Chak No. 8, Lahore District, in a fight in the morning of 22-3-1967. Rehmat Ali, Yahya's father and Rafiq, his brother, were also injured in this fight. The appellants with five other accused were therefore tried in the Sessions Court Lahore, under section 302/ 149, 307/ 149 and under section 148, P. P. C. The appellant, Abdul Rehman stated in his defence in the Sessions Court that there was a dispute about land between him and the party of the com-- plainant and that on Re day of the occurrence, he was present on his land, when the two deceased came armed with hatchets, whilst the witness Rehmat Ali had a spear and his son Rafiq had a dang. Muhammad Ahmad, Murtaza and the two witnesses attacked him, and although he was severely wounded, he managed to seize Rehmat Ali's spear and "used it to save my life." Mahanda co-accused on my alarm came to my rescue and was also injured by Murtaza and Ratiq . . ." The appellant, Mahanda, who had received a grievous injury in this fight, admitted his presence at the occurrence and adopted in his defence the same plea that was advanced by his uncle, Abdul Rehman. The other five accused, who were tried with these appellants, denied their presence at the occurrence and stated that they had been falsely implicated on account of enmity, because they were very closely related to Abdul Rehman. Although the eye-witnesses implicated all the eight accused, and although all the witnesses had categorically asserted that eight accused had come armed with the intention of attacking Murtaza and Muhammad Ahmad, the Sessions Court convicted the appellants only under section 302/34, P. P. C. And under section 307,134, P. P. C. And acquitted the other five accused. Further, although the three appellants were convicted for murder, Abdul Rehman was given the benefit of the lesser
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sentence, whilst Mahanda and Ahmad Ali were sentenced to death. The three appellants were also sentenced to seven years' R. I. Under section 307/34, P. P. C., and fines were also imposed on both counts. The appellants challenged their conviction in an appeal in the Lahore High Court, which was heard with the reference from the Sessions Court and a Revision filed on behalf of the party of the complainant. And, by their judgment dated 10-7-74, the learned Judges of the Lahore High Court dismissed the appeal of the appellants and confirmed the sentence of death passed against the appellants, Mahanda and Ahmad Ali. Next, as to the Revision, filed by the party of the complainant, the learned Judges directed that compensation should be awarded to them presumably out of the fines recovered from the three appellant. Aggrieved by this judgment, the appel--lants filed a petition for leave in this Court and leave was granted, inter alia, because the evidence of two of the four eye-witnesses had escaped the attention of the learned Judges, and because of the glaring inconsistencies between the medical evidence and the ocular evidence and the divergent descriptions of the occurrence by the four eye-witnesses. The motive for the occurrence was a dispute about inheritance between the parties, who acre descended from the two wives (Mst. Fatima and Rai Bibi) of one Khuda Bakhsh, who died many years ago and the facts leading to this enmity between the parties have been set out in an order of the learned Collector, Kasur dated 29-7-1965 by which the learned Collector, Kasur had allowed the appeal of Mst. Janet Bibi (the daughter of the said Mst. Fatima and the mother of the appellant, Abdul Rehman and Khalid one of the co---accused) against fist. Sairan and Mst. Rehmat Bibi, who claimed through the other widow of Khuda Bakhsh deceased. Now, Mst. Sairan and Rehmat Bibi are sisters, Mst. Sairan is the wife of Rehmat Ali, who was injured in the occurrence and Murtaza and Muhammad Ahmad, who were killed in the occurrence and Yahya (who lodged the F. I. R.) are the children of Rehmat Ali and Mst. Sairan. Turning now to the Collector's order, he observed :- "Khuda Bakhsh had two wives, Fatima and Raj Bibi. He had one daughter Mst. Jannat Bibi from Fatima and two daughters from Raj Bibi, namely Mst. Rehmat Bibi and Mst. Sairan. Fatima died before the death of Khuda Bakhsh and after the death of Khuda Bakhsh the entire property went into the hands of Mst. Raj Bibi as a limited owner. Subsequently Mst. Raj Bibi gifted the entire property to Mst. Rehmat Bibi and Mst. Sairan, against this gift the appellant Mst. Jannat Bibi went to the civil Court which passed a decree in favour of Mst. Jannat Bibi to effect that in view of the coming into force of the Shariat Act, Mst. Raj Bibi was not entitled to gift away her property, to Mst. Rehmat Bibi and Mst. Sairan. In view of the fact that Mst. Raj Bibi was a limited owner. The Court further decided that after the death of Mst. Raj Bibi, the rights of various parties according to the Shariat Act will not be affected because to the gift made by Mst. Raj Bibi." The learned Collector then explained that the decree obtained by the appellants mother had become final and therefore, she was entitled to a partition of land. But, although the occurrence took place a year and a half after this order, Mst. Jannat Bibi had not been successful in her efforts to enforce the Collector's order with the result that the party of the complainant had remained in cultivating possession of land which should have been handed over to Mst. Jannat Bibi and her son the appellant Abdul Rehman. Therefore, according to the prosecution, this appellant had a motive for killing Murtaza and Muhammad Ahmad, the sons of Mst. Sairan Bibi. I now turn to the description of the occurrence (sic) and Yahya, the brother of Murtaza and Muhammad Ahmad, who lodged the F. I. R. Stated that he, his brothers and his mother were at their field at about 11-30 a.m. The presence of Mst. Sairan, the mother, was explained on the ground that she bad brought meals for her sons. Reverting however to the description of the occurrence, the witness then went on to say that the appellant suddenly appeared with his brother Khalid his nephew Mahanda and five other cousins and gave the usual lalkara before firing at Murtaza with his pistol. Next, as to the weapons with which this unlawful assembly was armed, Yahya said that
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Abdul Rehman and two of the other accused were armed with pistols, whilst the appellants, Mahanda and Ahmad Ali and one of the acquitted accused, Khalid were armed with spears. The acquitted accused Sharif and Siddique were armed with a hatchet and a dang respectively. Then, after the appellant Abdul Rehman had fired at Murtaza, the appellant, Mahanda had attacked both Murtaza and Muhammad Ahmad with his spears whilst the third appellant, Ahmad Ali and Khalid (Abdul Rehman's brother) had attacked the witness Rafiq and Muhammad Ahmad with spears. Next, the acquitted accused Sharif had hit Murtaza on the head with a hatchet, Finally, according to the witness "then all the accused collectively belaboured Rafiq Murtaza and Muhammad Ahmad. Murtaza died on the spot . . . . Then all the accused decamped''. But, after saying all this, the witness was compelled to admit in his answer to the Court that when his brothers "saw the accused going towards them to make an attack on them, they first inflicted hatchet blows on Abdul Rehman and Mahanda." The other eye-witnesses, denied that the deceased had "first inflicted hatchet blows" on the appellants. However, whilst they all implicated all the eight accused in the charges under sections 148 and 149, P. P. C., Mst. Sairan did not attribute any overt act to Yahya, the acquitted accused, whilst Rafiq (the son of Rehmat Ali) did not attribute any overt acts to Khalid and to the said Yahya. However, Rafiq's father attributed overt acts only to the three appellants. Such glaring discrepancies in the description of the occurrence by the eye-witnesses do not inspire confidence. Secondly, accord--ing to the prosecution, it was Abdul Rehman, who had a motive of killing his cousins, therefore, he had to be given a leading role in the occurrence, and all the eye-witnesses said that they had seen him fire at Murtaza and they even went to the length of specifying where the deceased had been hit by the shot fired by Abdul Rehman. But, as Murtaza did not have any fire-arm injury, this attempt by the four eye-witnesses to give the major role in the occurrence to Abdul Rehman was an obvious attempt at pre-concerted perjury, and, therefore, this appellant was given the benefit of the lesser sentence by the Sessions Court. But reverting to the infirmities in the ocular evidence, although, according to the eye-witnesses, all the eight assailants were heavily armed, the deceased had successfully inflicted injuries on their assailants, and Mahanda, for example, had an incised wound, but the injury was grievous. Abdul Rehman, on the other hand, who was the target of the venom of the party of the complainant, had eight incised wounds of which three were on the head, and the injuries were so severe, that according to the doctor, who examined this appellant, the injuries were collectively dangerous to life. The severity of the injuries thus inflicted by the party of the com--plainant is difficult to reconcile with the description of the occurrence by the eye-witnesses. In view of these and the many other discrepancies in the prosecution case, to which Mr. Saeed referred us, the task of the trial Court in sifting the grain from the chaff was to say the least, extremely difficult and I would now examine how the learned Additional Sessions Judge performed this very difficult task. The learned Additional Sessions Judge solved the problem of reconciling the fundamental discrepancies between the medical evidence and the ocular evidence by the simple process of ignoring the medical evidence. But, despite this attempt to square the circle, he had to reconcile the glaring discrepancies in the description of the occurrence by the eye-witnesses. Did eight assailants attack the deceased and their cousins, as claimed by Yahya, the brother of the deceased or did only three assailants attack the deceased and their cousins as claimed by Rehmat Ali? The learned Additional Sessions Judge has preferred the evidence of Rehmat Ali, without giving any reasons for this preference, but presumably this was because the evidence of the other three eye-witnesses was completely falsified by the medical evidence. However, although Rehmat Ali did not resort to the absurd exaggerations of the occur--rence to which Yahya, his son had resorted, the further question which required examination was whether he was a witness of truth, but the learned Additional Sessions Judge assumed that Rehmat Ali was a
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witness of truth, presumably because the exaggerations in his evidence were not so gross. Be that as it may, as the learned Additional Sessions Judge relied on this witnesses evidence, I am not able to understand how he acquitted the five other accused, because on Rehmat Ali's evidence, their guilt under sections 148 and 149 of the Pakistan Penal Code had been proved beyond all doubt. Perhaps, although this is far from clear, this was because the learned Additional Sessions Judge had misgivings about the evidence of Rehmat Ali too. I say this because after relying on Rehmat Ali's evidence, the learned Additional Sessions Judge has referred to the corroboratory evidence. And according to the learned Additional Sessions Judge, the ocular evidence or at least Rehmat Ali's evidence was corroborated by evidence of motive and by the fact that the occurrence had taken place in the fields which were in the possession of Rehmat Ali. Further, according to the learned Additional Sessions Judge, the case against Mahanda was corroborated by the recovery of the blood-stained spear at his instance, whilst the case against Ahmad Ali was corroborated by his prolonged abscondenee. But, as them was obvious infirmities in this corroboratory evidence to which I will presently refer, it is not surprising that the appellants challenged their conviction in an appeal in the Lahore High Court. The learned Judges of the High Court were impressed by the ocular evidence, even though the trial Court had entertained some misgivings about it, and is this connection, the learned Judges observed that "the defence has not been able to bring out any serious discrepancy" in the ocular evidence. The learned Judges, then observed that the ocular evidence was supported by the injuries to Abdul Rehman and Mahanda, because, according to the learned Judges, these injuries "stand fully explained as having been caused by the deceased or the P. Ws. In his defence". Finally, the learned Judges appear to have agreed with the view of the trial Court that the ocular evidence was corroborated by evidence of motive and by the fact that the occurrence had taken place in the field of Rehmat Ali. Now, in cases in which the prosecution relies on circumstantial evidence and the prosecution does not, in the instant case, the primary question in every criminal case is of the veracity of the eye- witnesses, therefore, if the ocular evidence is reliable, as held by the learned Judges of the High Court, then this was clearly not a fit case for the grant of special leave. But, with all due respect to the learned Judges of the High Court, I am not able to, understand how they reached the conclusion that "the defence has not been able to bring out any serious discrepancy" in the ocular evidence. Thus, for example, as I indicated earlier, Yahya had said in his evidence that all the eight accused had participated in the attack on his brothers and on his father Rehmat Ali, but according to his brother Rafiq, six out of the eight accused had participated in the attack, whilst, according to his mother, seven of the eight accused had participated in the attack, Rehmat Ali however only implicated the appellants. Additionally, all the eye-witnesses had attributed the specific overt acts to the accused implicated by them, therefore, if Rehmat Ali was speaking the truth, then it is obvious that his wife and sons had committed wholesale perjury. Again, as I pointed out earlier, the claim of all the four eye-witnesses that Abdul Rehman had fired at Murtaza with a pistol was a case of pre-concerted perjury. Another glaring discrepancy, which stared the Courts in the face, was the inconsistency between the medical evidence and the ocular evidence, and even a casual perusal of the medical evidence was sufficient to prove that all the eye-witnesses had grossly exaggerated the number of injuries inflicted by the accused, and this exaggeration by Yahya and his mother bordered on the absurd. Secondly, the witnesses had resorted to these exaggerations in order to implicate all the male relations of Abdul Rehman. Therefore, the Sessions Court rightly acquitted five out of the eight accused, but this manifested the hostility of the eye-witnesses towards Mst. Janat Bibi's branch of the family. Thirdly, despite persistent cross---examination, none of the eye-witnesses were able to give a satisfactory explana--tion of the injuries inflicted on the
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appellants, and as this aspect of the case has been ignored by both the Courts it becomes our duty to go into it. The number and nature of the injuries to the appellants rule out the possibility that the deceased and his branch of the family were unarmed. But, Mst. Sairan said in her examination-in-chief: "When the fight was going on, Murtaza and Muhammad Ahmad, deceased snatched the hatchet and dang from the accused and gave blows in self-defence to Abdul Rehman and Mahanda accused." The question is whether this story is even remotely probable because, Mst. Sairan had herself stated that Abdul Rehman had opened the attack on her sons by firing at Murtaza and that Mahanda had immediately given a spear blow on the chest to her son. Could any person, who had received such injuries, resist his assailants, snatch their weapons from them and inflict injuries on them? I would recall here what the witness's son, Yahya, was compelled to admit in cross- examination. Yahya said "Abdul Rehman fired a pistol shot at Murtaza. . . After receiving the bullet injury, he fell on the ground. He was lying on the ground when Mahanda inflicted a spear blow on him." This evidence is consistent with the medical evidence, and Mst. Sairan's evidence is false. But, even though Murtaza was not in a position to attack the assailants, could Muhammad Ahmad have inflicted all the injuries on the two appellants, which have been proved by the medical evidence. According to the medical evidence, the two appellants had between them nine incised wounds and except perhaps for two wounds on Abdul Rehman's forearm each one was the result of a separate blow. But, as according to all the eye-witnesses, three of the assailants were armed with spears, whilst three others were armed with pistols, it is absolutely impossible to believe that Muhammad Ahmad alone could have inflicted so many injuries on Abdul Rehman and Mahanda. But, as the position would be different if the deceased brothers were armed, Mst. Sairan's son Yahya, who followed his mother in the witness-box, said "Murtaza was armed with a hatchet." As the witness also said that Murtaza had fallen on the ground after receiving the bullet injury, the fact that Murtaza was armed with hatchet does not improve the prosecution case, the moreso, as Rehmat Ali and his son had both been eliminated from the fight by comparatively minor injuries. In order to over-- come this difficulty, Rehmat Ali, who followed Yahya in the witness-box, said that both Murtaza and Muhammad Ahmad were armed with hatchets, but Rafiq, who followed his father in the witness-box said that Muhammad Ahmad and Murtaza only had sticks with them. As the sticks could not possibly have explained the injuries to the appellants, the witness later on attempted to bring his evidence into line with his father's and said that both the deceased were armed with hatchets. Now even if we assume that the two deceased were armed with hatchets, as Murta.Za had been eliminated from the fight as soon as it began, it is impossible to believe that Muhammad Ahmad could have inflicted single-handed mine incised wounds on the appellants. However, the injuries to the appellants could perhaps be reconciled with the ocular evidence if the eye-witnesses had come to the rescue of Murtaza and Muhammad Ahmad, and this was the view taken by the High Court. But one of the four eye-witnesses was a lady, Mst. Sairan. She did not claim to have joined in the attack nor is it possible that she could have done so. As to the next witness, Yahya said in his evidence "when my brothers were being be laboured I was standing at a distance of six or seven Karams from them." I did not try to rescue (them) due to fear." This leaves only Rehmat Ali and Rafiq, but Rehmat Ali also said "when I tried to intervene I too was hit by Ahmad Ali with a spear . . . . ' I fell on the ground." This leaves only one witness, who could have come to the rescue of the deceased. That was Rafiq had although his father said that his son was armed with a kassi, and had come to the rescue of his brothers Rafiq said in his evidence: "I was empty-handed." As the witness was empty-handed, whether or not, he came to the rescue of the deceased, he could not have inflicted any incised wounds on the appellants. But the appellants had nine incised wounds, therefore, with all respect to the learned Judges, they erred in holding that the prosecu-- tion witnesses had also inflicted injuries on the two appellants. And, this means that it was only the
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deceased, who had attacked the appellants. But, they could not possibly have inflicted nine incised wounds on the appellants, unless they had first attacked the appellants, as reluctantly admitted by Yaya. Now, this admission by Yahya is very damaging to the prosecution case and is fatal to the veracity of the eye-witnesses, but was ignored by both the Courts. Additionally, Mr. Saeed referred us to the many discrepancies between the evidence of the eye- witnesses in the Sessions Court and their earlier state--ments which had escaped the attention of both Courts. It is, however, not necessary to dilate on these discrepancies because it is clear that the ocular evidence is not fit to be accepted without strong corroboration by independent evidence of au absolutely reliable nature. And, as both the Courts were of the view that the ocular evidence was so corroborated by evidence of motive, and by circumstantial evidence and against Mahanda by the recoveries of the spear at his instance and against Ahmad Ali by his abscondence, it is necessary to examine this evidence. The prosecution case for motive is based on the evidence of the eye--witnesses and on the documentary evidence about the litigation between the two branches of Khuda Bakhsh's family. As, it is elementary that a witness cannot corroborate himself, I will not examine the evidence of the eye-witnesses about motive and I will turn to the documentary evidence. This documentary evidence proves that Mst. Jannat Bibi was successful in her litigation against Mst. Sairan's branch of the family both in the civil Courts and in the revenue Courts, and all that remained to be done was to effect the partition of the property of which she was a co-owner with her cousins. Could this success in litigation, which had become final give Mst. Jannat Bibi's sons a motive to kill their cousins? According to the prosecution, as Rehmat Ali and his sons were resisting the steps taken by Mst. Jannat Bibi for the partition of the ancestral property, the appellants had a motive for killing them. But, on the position taken by the prosecution, the question which required examination was why Rehmat Ali was obstructing Mst. Jannat Bibi in her attempts to obtain the fruits of the decrees in her favour. The answer is obvious. Rehmat Ali wanted to retain the benefits of land which did not belong to him. Therefore, if Mst. Jannat Bibi's sons had a motive for murdering their cousins, because of the dilatory tactics of those cousins, then it follows that those cousins had a far stronger motive for killing the appellants, because of the decrees obtained by Mst. Jannat Bibi. And, further whilst, the prosecution case of motive against the appellants is based on speculation, the enmity of Mst. Sairan's branch of the family has been proved by the fact that Mst. Sairan, her husband and sons had deliberately and falsely implicated five members of Mst. Jannat Bibi's branch of the family. But, this means that the evidence produced by the prosecution about motive lends greater support to the plea of the appellants than to the prosecution case, and, on the other hand, the ocular evidence requires strong corroboration, because of the enmity of the eye- witnesses against the appellants. I now turn to the circumstantial evidence, and both the Courts were of the view that the occurrence took place in the field of Rehmat Ali and that this furnished very strong corroboration of the ocular evidence. Now, if the occurrence took place in the field of Rehmat Ali as claimed by the eye-- witnesses, it would mean that the appellants had come armed to make a wanton attack on Rehmat Ali and his sons and this would furnish extremely strong corroboration of the ocular evidence. But the prosecution has to prove its claim that the occurrence took place in the fields occupied by Rehmat Ali and according to the Tapedar, Khasra Nos. 615, 627, 638 and 639 were in Rehmat Ali's occupation, whilst Khasra No. 592 belonged to Mahanda. But, blood was found neither in the field of Mahanda nor in the fields occupied by Rehmat Ali, but in Khasra No. 620 which belonged to a stranger. Prima facie, this evidence is inconsistent with the ocular evidence but the Sessions Court ignored this discrepancy. The learned Judges of the High Court however noted the discrepancy and explained it with the observation that it was not the prosecution case "that Murtaza fell in the very field that he was irrigating." With due respect to the learned Judges, their
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observation is not supported by the evidence, because all the eye--witnesses were emphatic that the deceased were attacked in the field occupied by their branch of the family. But presumably what the learned Judges had in mind was…
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