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Petitioner: AJMAIR VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Muhammad Sardar Khan, Shah Abdur Rashid Title: AJMAIR vs THE STATE Case No.: Criminal Appeal No, 270 of 1978 Date of Judgment:1979-12-03 Reported As: 1980 P Cr. L J 218 Result: Order accordingly
JUDGMENT
JUDGMENT ' SHAH ABDUR RASHID, J.-Ajmair alias Jamair was tried along with his father Nasar Khan son of Akram Khan and Malik Mas Khan son of Hameed on charges under section 302 read with section 34 of the Pakistan Penal Code for having committed, in furtherance of their common intention, the murders of Masal Khan and his brother Yousaf Khan by firing at them, in the area of Khawaja Hawas Koroona within the jurisdiction of Police Station, Shabqadar on the 12th day of July, 1976 at Kacha gharma time Ajmair alias Jamir was convicted on two counts under section 302, P.P.C. And sentenced to death. He was also sentenced to pay a fine of Rs, 2,000 on each count or to undergo rigorous imprisonment for one year in case the death sentences are not confirmed. The fine, if realized, is to be paid to the heirs of the two deceased persons. Nasar Khan and Malik Mas Khan were, however, acquitted. 2. Ajmair alias Jamir has appealed against his convictions and sentences and the learned Sessions Judge has also forwarded the record of the case to this Court for confirmation of the death sentences under section 374, Cr. P. C. This order shall dispose of the appeal as well as the reference. 2. On 12th July 1976 at 11-30 a. m. Mst. Khadai (P.W. 11) the mother of the two deceased brothers made a report at Police S4ation, ghabqadar. This report when translated into English would read as follows :- "Four days back Nasar son of Karat= resident of Khawaja Hawas Koorona came to our house in village Shagga Tehsil Swabi and said that I and my sons Masal Khan and Yousaf Khan (deceased) with household effects should migrate from our village to his village Khawaja Hawas Koroona. Since Nasar son of Karame resident of Khawaja Hawas Koroona is our collateral, my sons agreed
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on that very day and I and my sons left the residence of village Shagge and came to village Khawaja Hawas Koroona. Today at kacha gharma time Ajmair son of Nasar resident of village Khawaja Hawas Koroona came to our house and told my son Masal Khan to go with him for cutting the grass. Ajmair was at that time carrying a gun in his hand. My son Masal took up sickle and went with Ajmair. After some time shots were fired. At this I and my son Yousaf Khan came out of our house and went towards the side from where shots were fired. We saw that Ajmair was carrying a gun in his hands and was coming towards us. When he reached near us he fired at my son Yousaf. My son Yousaf, on being hit, fell down and died, Ajmair told me that he had murdered Masal Khan as well. On saying this he went away. The occurrence was seen by me and several other persons. The motive is that Ajmair was annoyed at our residing in their house. The said Ajmair has murdered my sons at the instance of Malik Mas Khan. The dead bodies of my sons are lying on the spot. I make complaint for the murder of my sons against Ajmair son of Nasar". 4. The above report of Mst. Khadai (P.W. 11) which is Exh. PA was recorded by Aftab Ahmad (P.W. 15) who at that time was posted as A.S.I. At the Police Station, Shabqadar. He registered the case and proceeded to the spot along with Mst. Khadai (P.W. 11). Reaching there at 12-00 hrs. He found the dead bodies lying on two cots. He prepared the injury sheets of the deceased persons and also held the inquest on their dead bodies. He inspected the spot and prepared the site plans (Exh. PB and Exh. PB/1). He took into possession the blood-stained earth from the place where Masai (deceased) was killed and made a sealed parcel thereof. From that very place he took into possession two empties of 12 bore gun. These are Exh. P-1. They were made into sealed par-els. Blood-stained earth was also taken into possession from the place where Yousaf Khan was killed. Mst. Khadai (P.W. 11) produced a license of the gun to the witness which was taken into possession. The licence is Exh. P-3. 5. The post-mortem examinations on the dead bodies of the two deceased persons were performed by Lady Dr. Nusrat Ara (P.W. 1) on the same day i,e, 12th July 1976 at 4-00 a. m. And 4-50 p. m. The appellant was allegedly arrested in the tribal area of Mahmand Agency by the Political Staff of the Political Agent alongwith gun (Exh. P-11), a bandolier (Exh. P-12) and a knife (Exh. P-13). The appellant was brought by Subedar Major Zarif Shah of Muhmand Agency (P.W. 13) to the Police Station and was handed over to Ajab Khan S.H.O. (P.W.10) who arrested him and also took the custody of the shot-gun, bandolier and the knife. 6. The acquitted accused, namely, Malik Mas Khan and Nasar Khan were not arrested during the investigation as a pre-arrest bail had been allowed to them. 7. The gun which had been recovered from the appellant and two empties which were recovered from the place where Masal deceased had been killed were sent to the Forensic Science Laboratory and the report of the Expert is Exh. P-Z/1. 8. That the two deceased persons, namely, Masal Khan and Yousaf Khan did not meet natural deaths but were the victims of offence is established from the statement of Lady Dr. Nusrat Ara (P.W. 1). As already stated she had performed the post-mortem examinations on the dead bodies of the two deceased persons. The post-mortem examination on the dead body of Masai Khan was performed at 4-00 p. m. On 12th July 1976, the day on which the offence had been committed. The following injuries were found on external examination (1) A fire-arm inlet wound one inch long cavity deep, charring mark present in the center line on the back at the level of tenth intercostal space. Contents of vertebral column were protruding out, ninth and tenth ribs fractured with corresponding vertebra. (2) Six outlet pellet marks on the front of abdomen starting from the pit of stomach on the area of 4" wide and 6" long. ' The Lady Doctor recovered two pellets from the area from the abdominal wall. The internal examination disclosed that the membranes over the spinal cord had been injured. The spinal cord
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itself was injured at the level of tenth intercostal space. Tenth thoracic vertebra was fractured. The wall of the chest on the back at the level of tenth intercostal space was also injured. The ninth and tenth ribs were fractured. The abdominal walls were also injured on the front. Peritoneum and diaphragm on the right side too were injured. The stomach was, however, normal. It was empty and contained a little quantity of half-churned food. It was pierced by pellets. Small and large intestines were also pierced. The liver was torn into small bits. 9. With regard to this deceased person the witness opined that the death was caused due to the injury to liver which had been found torn into pieces resulting in severe hemorrhage. The other factor which contributed to the death was neurogenic shock as vertebral column at the level of tenth thoracic vertebra was seen crushed. The Doctor also recovered two pellets and one cord from inlet and outlet wounds which weighed 100 grains. The death, according to the opinion of the witness, occurred instantaneously. The time between death and post-mortem examination was less than twelve hours. 10. The external examination on the dead body of Yousaf Khan whose autopsy was performed at 5- 50 p, m. Disclosed the following two injuries :-- (1)An inlet-fire arm wound one inch long cavity deep on the back right side one inch away from vertebral column at the level of eighth and ninth ribs which were fractured. Charring marks present around the wound. (2)Seven outlet pellets marks on the front of abdomen in the area of 5" x 7" (five and seven inches) area. ' Three pellets were recovered from the abdominal wall. These weighed 150 grains. On internal examination the Doctor found that eighth and ninth ribs on the back of right side were fractured. Pleurea and right lung too were injured. Abdominal wall on the front, peritoneum, and stomach had been pierced by pellets. Small and large intestines were also injured and the liver was torn into pieces. The stomach was found to be empty. The bladder was full and was in normal condition. 11. In the opinion of the Lady Doctor the death of Yousaf Khan occurred due to fire-arm injury to the liver which had been completely damaged and torn into small bits producing hemorrhage and neurogenic shock. The Lady Doctor also recovered pellets weighing 150 grains from the front abdominal wall. The death, in the opinion of the Doctor, occurred instantaneously on receiving the fire-arm injury. The postmortem 'examination had been performed within twelve hours of the death. 12. In order to establish the guilt of the accused the prosecution had relied on the following pieces of evidence (a) Eye-witness account of Mst. Khadai (P.W. 11), the mother of the deseased persons and Mukamil Shah (P.W. 12) her son. (b) The conduct of the accused in running away immediately to the tribal territory after the occurrence. (c) The arrest of the accused by the Political Staff of Mahmand Agency in suspicious circumstances. (d) The possession of crime gun by the accused. (e) The judicial confession of the appellant, made before Syed Wakil Shah, M.I.C. (P.W. 7). ( f ) The matching of empties recovered from the spot with the gun recovered from the appellant (on the basis of Expert's report). 13. The learned trial Judge had disbelieved the testimony of Mukamil Shah (P.W. 12) and rightly so because this witness was not mentioned in the first information report which had been lodged without loss of time by Mst. Khadai (P.W. 11). He also ruled out the ri-C acted judicial confession of the appellant for the reason that it had been recorded after the appellant had remained in police
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custody for a number of days. He however, accepted the eye-witness account of Mst. Khadai (P.W. 11) and the Expert's report (Exh. P-Z/1) which supported her. 14. Mr. Muhammad Shafique, learned counsel appearing for the condemned appellant, has first of all contended that the entire prosecution case falls to the ground when judged in the light of the background in which the offence is said to have been committed. He contends that the prosecution have miserably failed to bring on record any motive for the commission of offence and that in fact even Mst. Khadai (P. W. 11) who is the main witness and the mother of the deceased persons is not consistent with regard to the motive. It was also pointed out that the said witness had been changing her version from time to time which fact itself shows that she was not at all aware of any motive and the convict has been roped in merely on suspicion without any basis whatsoever. 15 In the first information report (Exh. PA), the translation of which we have reproduced above in the opening paragraphs of this judgment, shows that Mst. Khadai (P.W. 1 I) does not say as to what enmity or ill-will the appellant had against the two deceased persons. She does not attribute, in the said property, any direct motive to the appellant though in the end of the report she does say that the appellant had committed the murders at the instance of his landlord Malak Mas Khan, the acquitted accused. At the trial, however, quite a different story was given by her with regard to the motive which is reproduced below in her own words : - "The motive for the offence is that Ajmair accused was aggrieved as to why we had occupied the adjacent koala in their house and had come from our village to cultivate the land of Malak Mas Khan on tenancy : besides this we have no other enmity with the said accused." ' Mukamil Shah (P.W. 12) though disproved to be an ever-witness of the occurrence has not given any version of the motive and in fact inthe examination-in-chief he categorically state hat the deceased and he bad no enmity with the accused. In cross.: mention, however, he stated as follows :- "I cannot say why Malak Mas Khan ordered the accused Ajrnair along with Nasar Khan to fire at the deceased. In fact Masal Khan had enmity with his relative Imam Said and it is possible that they by killing my brother wanted to bring charge against Imam Said." 16. Mst. Khadai (P.W. 11), although in the first information report had stated that the murders were committed at the instance of Malak Mas Khan the acquitted accused, nevertheless she subsequently filed an affidavit to the effect that Malak Mas Khan had no hand in the tragedy and that she had not named him as one of the culprits before the police. In her statement at the trial, however, she does mention the names of Malak Mas Khan as well as Nasar Khan, the father of the convict for the abetment of the offence though no major part has been attributed to them. 17. The above resume of the evidence with regard to the motive would show that even Mst. Khadai (P.W. 11), the mother of the deceased persons and Mukamil Shah (P.W. 12), their brother are not positive about the actual reason which had prompted the appellant to commit the murders of the two persons who were related to him. The learned counsel for the appellant, as already stated, contends that since there is no motive whatsoever, the evidence of even Mst. Khadai (P.W. 11), who claims to be an eye-witness, should not be believed because no sane man would commit the murder of his relative unless there are reasons to prompt him to commit the heinous crime. 18. In our view though the motive for committing an offence always exists yet it is not essential for the proof of the guilt of the accused person. Instances are not lacking where gruesome murders have been committed without any motive and there are many reported cases in which murders have been committed but the motive had throughout remained a mystery. The motive is a double- edged weapon. On the one hand it prompts the culprits, to commit the offence and, on the other hand, it creates a suspicion in the mind of the relatives of the victim that the person who had motive to commit the offence would be the A actual murderer. Again if motive does not exist for
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committing the murder it can rightly be argued that there is nothing for the complainant party to charge a person in the absence of any motive. In the instant case the motive is not established but even then Ajmair appellant has been directly charged for the commission of the offence. This fact itself shows that Mst. Khadai (P.W. 11) has not charged Ajmair accused without any reason. Either she does not know the motive for the commission of the offence or the motive is such which she was not prepared to disclose at the trial. The same is the case with Mukamil Shah (P.W. 12) her son. Most probably the second theory that the witnesses know the motive but in order to save the honor of some persons they are not prepared to bring it to light is correct. 19. In the case of Azeon Khan v. The State (1) my learned brother Mian Burhanuddin, J. While discussing the question of existence and non-existence of the motive, observed as follows : ...... We know from the experience of the Criminal Courts that atrocious crimes of this sort have been committed from very slight motives, not merely from impulse or revenge but to gain a small pecuniary advantage and to drive off for a time pressing difficulties. Therefore, we are of the view that when there is other evidence of the guilt of an secused person, the existence of a motive is a circumstance corroborative of the case against him. But motive is a fact which is within the personal knowledge of the person doing the act and which no human being but the party himself can divine. Thus failure to discover the motive for an offence does not signify its non-existence; and failure to produce the evidence of motive though it may be adduced with weakness of the whole body of proof, is not fatal as, in law proof of motive is no more necessary than the proof of any other relevant fact." ' In .View of above facts we are of the opinion that absence of proof of motive does not by itself weaken the prosecution case regarding the actual offence. 20. We shall now take up the evidence which has been adduced in the case to prove the guilt of the convicted appellant. As already stated the first piece of evidence is the ocular testimony of Mst. Khadai (P.W. 1l) and Mukamil Shah (P.W. 12) the mother and brother respectively of the two deceased persons. The evidence of the latter has not been azcepted by the learned trial Judge and, as already observed, it did not deserve acceptance for more than one reason. Mst. Khadai (P.W. 11) had lodged the report soon after the occurrence. If her son Mukamil Shah (P.W. 11) had been a witness to the occurrence we see no reason why his name should not have appeared in the first information report. Again his evidence has no intrinsic value whatsoever. He says that he and Zareef were cutting grass in a sugar-cane field when he saw Malak Mas Khan and Naser Khan the acquitted accused, standing on a Pulla of a nearby field. According to him Ajmair appellant fired on Masai Khan deceased upon the instruction of the two acquitted accused persons. If he had seen the murder being committed, in his presence, of his real brother it was highly improbable that he should not have come to rescue or raised hue and cry to attract the other persons. Mst. Khadai (P.W. 11) does not say that she was attracted by the hue and cry of Mukamil Shah (P.W. 12) or of Zareef who was allegedly cutting grass with Mukamil Shah (P.W. 12). According to his own version after the deceased Masai Khan was fired at he and Zareef had crawled in the field to escape from the spot to save their own lives. This is a conduct which does not fit to a person living in the society to which the witness belongs. With stronger reasons the testimony of this witness can be discarded because he, in spite of claiming to be an eye-witness of the occurrence and being a male member of the family, should have ordinarily gone to the P.S. To lodge the report had he witnessed the occurrence. In our society the female members come out to take such action only when the male member is not available or he is not in a position to do that is required. His failure to proceed to the police station himself instead of sending of Mst. Khadai (P.W. 11) to lodge the report establishes that he was (1) P L ID 1979 Pesh. 36
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' not at all present when the occurrence took place. The learned trial Judge has very wisely ignored to act upon the testimony of this witness and I can do no better but to rule out the presence of this witness from the spot for the reasons just mentioned and the reasons which the learned trial Judge has given in his order. 21. Mst. Khadai (P.W. 11) who lodged the first information report has been believed by the trial Judge and we too think that she had witnessed the occurrence and her testimony, as far as it incriminates Ajmair accused, is free from any reasonable doubt. The occurrence took place at kacha gharma vela on 12th July 1976 and she lodged the report at 11-30 aim. Which time too is kacha gharma vela. This shows that the report was lodged without any loss of time and the witness had gone directly to the police station after seeing the occurrence. There was no time for her to consult her sons or for that matter any of her well-wishers. There is, therefore, no possibility of concocting a false story against Ajmair accused against whom even the suspicion of any motive is not brought to light. 22. The learned counsel for the appellant has contended that Mst. Khadai (P.W. 11) is a witness who says one thing at one occasion and another thing at another occasion. She is a witness who can change her version from time to time and, therefore, it is not safe to rely on her testimony. He refers to the first information report where only Malak Mas Khan, the acquitted accused, was stated to be the instigator of the crime and her statement at the trial where she brings in Nasar Khan, the father of the accused, also to be the instigator. Again he refers to her affidavit dated 22nd July 1976 (Exh. PG) wherein she had resiled from the first information report by saying that she did not say before the police that her sons had been killed at the instance of Malak Mas Khan, the acquitted accused. The learned counsel argues that a witness of this type who can be moulded from time to time to make any statement which suits a particular person should not be believed specially in a criminal trial on murder which can bring to gallows an innocent person. We do not think there is much substance in this argument. The motive for the offence is always in the mind of culprit and a witness cannot be sure thereof. Mst. Khadai (P.W. 11) has not, in the first information report, directly charged Malak Mas Khan for any overt act but had simply stated that Ajmair had committed the murders at the instance of Malak Mas Khan. Obviously this is a statement which expresses suspicion only and no part in the tragedy has been attributed to Malak Mas Khan in the first information report. No doubt in her affidavit she resiled from that statement but that fact in itself would not make her wholly untrustworthy. _ Likewise her statement at the trial does not in her examination-in-chief attribute any part to the two acquitted accused, including Malak Mas Khan, whose name was mentioned in the first information report as a suspected culprit though she did say that she was charging Ajmair appellant for actually firing and the other two accused for the abetment of the offence. The fact cannot be ignored that,Mst. Khadai (P.W. 11) is a woman of 70 years age, illiterate and belonging to the backward rural area She is not expected to be exact in all the details nor can she have the intelligence to be cunning enough to concot a plausible story to bring in the innocent persons. It is for this reason that she has not in the examination-in-chief been able to make any case against the two atquitted persons'. 23. The learned counsel then argued that as the witness has given different r stories at different occasions she should be disbelieved as a whole being not a truthful person. It is settled law that in Indo-Pak. Sub-Continent the rule that the veracity of the witness is indivisible is never recognized. The Courts have always been trying to perform the difficult task of "winnowing the grain from chaff". The maxim that a witness who is false on one point is false on all points is not recognized and there is a chain of authorities in support of this view which it is not necessary for us to refer as it is no longer a disputed proposition of law. 24. Mst. Khadai (P.W. 11) had reiterated in her evidence at the trial the main facts which she had mentioned in the first information report. According to her on the day of occurrence she and her
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sons were present in their house at Khawaja Hawas Karona where they had shifted a few days back on the request of Nasar Khan, the acquitted accused and the father of the appellant when the appellant came. Before his arrival her two sons Mukamil Shah (P.W. 12) and Zareef had already left the house for cutting grass. Ajmair appellant and Masal Khan Deceased also went to the fields. Ajmair appellant took the licensed gun of Masal Khan deceased along with him. After about an hour she heard reports of two fires from the directions of the fields. At this she and her son Yousaf Khan rushed towards the spot. Yousaf Khan was ahead of the witness when Ajmair appellant came from front and shouted at Yousaf Khan to run for his life. Yousaf turned his back on which the appellant fired at him. He was hit and fell on the ground and succumbed to his injury. The learned counsel for the appellant contends that in the first information report no mention of Yousaf's turning his back on the calling of Ajmair, appellant is mentioned and that this improvement had been made to bring the evidence in line with the medical testimony. No doubt this is so but then the fact cannot be denied that in the first information report normally the minor details are not mentioned. The state of mind in which a mother, after the deaths of her two sons is expected to be, is sufficient for giving her concession for ignoring to mention certain points. Even if the statement at the trial is taken to be an improvement over the first information report, her testimony cannot be brushed aside simply for that reason. Obviously the composure, which the mother of the deceased persons gained during the interval between the occurrence and the time of evidence, made her wiser and she in her keenness might have improved her story to bring it in line with the evidence of the Lady Doctor. This act of her would not, however, make her a false witness in all particulars. In fact when Yousaf…
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