Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD ZAMAN VS Respondent: The STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Iqbal Hameed-ur-Rehman, Ejaz Afzal Khan Title: MUHAMMAD ZAMAN vs The STATE and others Case No.: Criminal Appeal No,457 of 2000 Date of Judgment:2014-01-06 Reported As: 2014 PSC (Crl.) 115, 2014 SCMR 749 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' EJAZ AFZAL KHAN, J.---This appeal with the leave of the Court has arisen out of the judgment dated 26-5-1998 of a Division Bench of Lahore High Court, Lahore whereby it allowed the appeal filed by the respondents, set aside the conviction and sentences recorded by the learned trial Court and acquitted them of the charges. 2. Brief facts as narrated in the F.I.R. Lodged by Hakim Ali who died before his examination in the Court are that he being a resident of Budhuwal was a cultivator; that his sons Zameer, Muhammad Zaman and Shabbir used to work at Islamabad; that a month before they came to village and so did Rafaqat Ali who also worked at Islamabad; that his sons and the said Rafaqat Ali developed friendship; that on the day of occurrence at about 3-00 p.m. He and his sons Tanvir, Ali Muhammad and Feroz were sitting in the courtyard of their residential house while Zameer, Muhammad Zaman, Shabbir and Rafaqat Ali were sitting in the adjacent Bethak, suddenly they heard noise from the eastern side of the street and saw Paindey Khan, respondent, lftikhar P.O., Zafar Iqbal, acquitted co- accused, Muhammad Ashraf son of Abdullah, acquitted co-accused, Fateh Muhammad, respondent herein, Muhammad Asghar, P.O., Imtiaz Ahmed and Murad alias Muradi, acquitted co- accused, armed with rifles, Muhammad Aslam, Abdullah, Liaqat Ali, respondents herein, Munawar, Muhammad Ashraf son of Mehdi Khan, acquitted co-accused, all armed with .12 bore shot guns along with two un-known persons who were also armed with Rifles came there; that Abdullah and. Mukhtar commanded that Shabbir be taught a lesson for his bad character; that Abdullah fired a shot at Shabbir with his .12 bore shotgun which hit him on his right thigh, Mukhtar, P.O fired a shot at Rafaqat with his rifle which hit him on his mouth; that both of them fell down and succumbed to their injuries; that Paindey Khan fired a shot at Muhammad Zaman with his rifle, which hit him on
---
## Page 2
his left hand; that Liaqat Ali also fired a shot at Muhammad Zaman with his shot gun which hit him on his right hand; that Fateh Muhammad fired a shot at Zameer which hit him, on his neck; that all the injured fell down and thereafter all the assailants mentioned above bolted away from the spot by firing indiscriminately. The motive for the occurrence is that the respondents and their cohorts suspected that Shabbir deceased had developed illicit relations with the sister of Mukhtar, P.O. A case under sections 302/307/148/149 , P. P.0 . Was registered against the respondents, P.Os' and acquitted co-accused vide F.I.R. No 332 dated 14-12-1986 in Police Station, Dinga, District Gujrat. The learned trial Court after trying the aforesaid accused handed down its finding in its judgment dated 26-4-1992 which runs as under:-- "In view of what has been discussed above, I have arrived at the conclusion that prosecution has succeeded to prove its case against Muhammad Aslam, Paendy Khan, Liaqat Ali and Abdullah accused present in the Court along with Mukhtar P.O.While I, disbelieve the evidence of the prosecution regarding all other co-accused because their presence at the spot even as taken to be true they were not ascribed any injury, while they were also stated to have been armed with firearms and it was easy for them to do away other P. Ws. Of this case. Hence, I am of the opinion that actually the above mentioned four accused along with Mukhtar P.Os were present at the spot and they caused death to Shabbir and Rafaqat deceased and also injured Muhammad Zaman and Zameer P.Ws., thus I convict them under section 302/34, P. P. C. Muhammad Aslam and Abdullah accused have fired at Shabbir Ahmad deceased, thus causing his death, therefore, I award them death sentence for murder of Shabbir deceased. The fine of Rs,25,000 is imposed on each accused, in case of default of payment of fine, they shall further undergo five years' R.I. Fine if recovered shall be given to the legal heirs of deceased Shabbir. I also convict them under section 302/34, P. P. C. For murder of Rafaqat deceased but as the fatal fire shot is not attributed to them, therefore, they are sentenced to life imprisonment. A fine of Rs,25,000 is also imposed on each convict. In default of payment of fine, they shall further undergo five years' R.I. Fine if recovered shall be given to the legal heirs of the deceased Rafaqat. While other accused Paendey Khan and Liaqat Ali are awarded lesser penalty on two counts of life imprisonment as no fatal fire shot is attributed to them. I also convict all the four accused under section 307, P.P.C. Read with section 34, P. P. C. For causing murderous assault on Muhammad Zaman and Zameer P.W. And imprisonment for 10 years' R.I. On two counts is awarded to them. A fine of Rs,5,000 each on each count is also imposed on each of the convict. In case of default of payment of fine, they shall further undergo two years' R.I. Fine if recovered shall be given to the injured P. Ws. In equal proportion. Abdullah accused is already in police custody. Accused Liaqat, Aslam and Paendey Khan are on bail. They shall be taken into custody and sent to jail to undergo their sentence. If the death sentence is not confirmed the benefit of section 382-B, Cr.P.C. Shall be given to the accused and all the sentences shall run concurrently. Remaining accused are on bail, their bail bonds are cancelled and sureties are discharged. File of this case be referred to honourable Lahore High Court, Lahore for confirmation of death sentence awarded to Aslam and Abdullah accused. Copy of this judgment shall be given to the accused Muhammad Aslam and Abdullah free of cost and they have been told that they can prefer appeal against the judgment within seven days. The murder reference shall be sent immediately. The case property shall be confiscated in favour of the State after period of appeal/revision if. Any. Copy of this judgment shall also be sent to District Magistrate as required under section 373, Cr.P.C." ' The respondents preferred an appeal against their convictions and sentences while the appellants preferred a revision petition against the acquittal of the co-accused and for enhancement of sentences of those convicted before the High Court. The former was allowed whereas the latter was dismissed vide judgment dated 26-5-1998, hence this appeal. 3. Points which were raised and noted at the time of grant of leave, read as under:--
---
## Page 3
"Leave to appeal is sought against the judgment/order dated 26-5-1998 whereby respondents 1 to 4 before the learned Lahore High Court were acquitted of the charge under section 302, Pakistan Penal Code on two counts. Respondents Nos. 5 and 8 others were acquitted by the learned trial judge. (2) To begin the F.I.R. 15 persons were nominated while two others not known to the maker of the F.LR. Were also described to have been participated in the occurrence, 13 persons, and 4 'absconders were tried and at the conclusion of the trial, the learned trial judge acquitted 9 accused of the charge but only convicted respondents 2 to 5. Respondents assailed their conviction in the Lahore High Court by filing an appeal while the complainant also instituted a Revision Petition. The appeal of the respondents was allowed and the Revision was dismissed and respondents were acquitted of the charge through the order impugned. (3) We have heard the learned counsel for the petitioners as well as Kh. Sultan Ahmad, ASC/Caveator and have gone through the judgment impugned in our view that the learned judges of the Lahore High Court erred in discarding the seemingly reliable injured eye-witnesses on the ground that they were contradicted by the F.I.R. Which is never considered as substantial piece of evidence and the same was not got recorded by the injured eyewitnesses. The maker of the F.I.R. Namely father of two deceased was also murdered and it is noteworthy to mention that the occurrence took place inside the 'Baithak' of the complainant while the complainant was standing outside. The learned Judges also proceeded to acquit the respondents on the ground that the role ascribed to the assailants had not been specially mentioned in the F.I.R. This reason too is not well founded because it I s very difficult to explain the evidence with mathematical exactitude. (4) To ensure the safe dispensation of criminal justice, in our view reappraisal of the entire evidence is essential, therefore, we -grant leave to appeal in this case. Let bailable warrants in the sum of Rs,50,000 returnable to the District Magistrate Gujrat be issued against respondents .2 to 6." 4. Learned counsel appearing on behalf of the appellant contended that though the number of the assailants runs up to seventeen but those who wrought and brought the plight of the deceased and the injured have 'been specifically charged. Their role, the learned counsel added, is supported by medical evidence and the report of Forensic Science Laboratory. The learned Judge of the High Court, the learned counsel added, has not appraised the evidence in its correct perspective and thus recorded artificial and untenable reasons for the acquittal of the respondents. The finding of the learned Appellate Court vis-a-vis motive, the learned counsel submitted, is also against the record. Armed presence of the respondents on the spot of occurrence, the learned counsel argued, amply and unmistakably proves their pre-concert and as such they are fully connected with the crime, therefore, the finding of their acquittal merits outright reversal. 5. The learned Additional Prosecutor-General, supported the appeal filed by the appellants by submitting that finding of acquittal recorded by the learned Appellate Court has not been based on proper appraisal of evidence, therefore, it cannot be maintained. 6. As against that, the learned counsel appearing on behalf of the respondents contended that initial presumption of innocence is doubled after the acquittal of the accused, therefore, the mere fact that on reappraisal of evidence, the view projected by the learned counsel for the appellant is equally possible, cannot furnish a justification for its reversal. Number of the assailants in the F.I.R., the_, learned counsel submitted, appears to have been exaggerated as seventeen persons have been charged notwithstanding this could be a doing of one or at the most two men armed with a shot gun. Contradictions in the statements of the P.Ws., the learned counsel contended, prove that they have neither witnessed the occurrence nor have they spoken the whole truth, therefore, evidence of this standard cannot, in- the first instance, justify conviction and then reversal of a finding of acquittal. Medical evidence, the learned counsel submitted, is also at variance with the
---
## Page 4
ocular account when the injuries on the person of Rafaqat Ali appear to have been caused by rifle. The judgment of the learned Appellate Court, the learned counsel by concluding his arguments submitted, being free from any infirmity is not open to any interference. 7. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties. 8, The prosecution produced as many as seventeen witnesses. It was Hakim Ali who lodged the F.I.R. Giving the details of occurrence which have been reproduced above. He could not be examined in the Court because he passed away before his examination in the Court. P.W.12 at the very start of examination in chief stated that Hakim All made a statement before him which was reduced into writing. The said statement of Hakim Ali, according to him, was thumb marked by him as a token of its correctness. It was marked as Exb.P.K. At no point of time it was disowned or disputed by his sons who have been examined as P.Ws.5 and 6. They both stated in their cross examination that the occurrence was witnessed besides others by Hakim Ali. The aforesaid witnesses claiming to have witnessed the occurrence also furnished their account but with many additions and variations. We are to see and examine how far these additions and variations fit in with surrounding circumstances and how far the account furnished by them rings true. The witnesses whose testimony could have an aura of independence have been abandoned for one reason or the other. Real brother of the complainant who was examined as P.W.4 denied that the occurrence was witnessed by the complainant. He admitted in his cross-examination that Hakim Ali was in his house at the time of occurrence and that he and Hakim Ali proceeded from his house to the place of occurrence after the firing was stopped. He thereby contradicted P.Ws.5 and 6 who stated that Hakim Ali had witnessed the occurrence. If we carefully examine the statements of the witnesses, no clear picture emerges as to who told the truth and who held it back. The haze surrounding the occurrence gets thickened when we see the version given in the F.I.R. And the one giv.En by P.Ws.5 and 6 as they are not in line with each other. Granted that an F.I.R. Cannot be treated as a substantive evidence unless its maker affirms its content on oath and passes through the test of cross-examination, but it can be looked into in terms of Article 19 of the Qanun-e-Shahadat Order (10 of 1984) as a relevant fact for having been said by a person who happened to see or hear something about the occurrence as a by stander or a passer by shortly before or after the occurrence inasmuch as it forms part of the same transaction. It can be looked into as a relevant fact to un-husk the lies, distortions and half truths introduced at a subsequent stage if proved in terms of Article 78 of the Order which provides for proof of signature and handwriting of person alleged to have signed or witnessed such document. It can also be looked into as a relevant fact for having been entered in the relevant register in terms of Article 49 of the Order so long as it does not amount to confession. It be noted that the post-mortem reports of the deceased in this case have been proved in accordance with one of the modes provided by Article 78 of the Order. Having said this, we see that many things averred in the F.I.R. Are belied by other evidence on .The record. According to. The F.I.R., Muhammad Aslam respondent herein, despite being mentioned to have been armed with .12 bore shot gun has not been attributed the role of firing any effective shot either at the injured P. Ws. Or the deceased but according to the statement of P.Ws.5 and 6 he has been attributed the role of firing a shot at Shabbir which hit him on the right side of his chest. According' to the F.I.R. Fateh Muhammad has been mentioned to have fired a shot at the deceased with rifle but according to the statement of P.W.4 Fateh Muhammad has been alleged to have fired at the deacased with a .12 bore shot gun. According to the F.I.R. Mukhtar has been alleged to have fired at Rafaqat deceased with a rifle but according to the statement of P.W.5, he is alleged to have fired a shot at the deceased with a shot gun. If the statement of P.W.12 is accepted to be correct then Hakim Ali has not witnessed the occurrence. If he has not witnessed the occurrence how could he give the details of the occurrence. If in view of the statements of P.Ws.5 and 6, he has witnessed the
---
## Page 5
occurrence why didn't he mention the shot fired at the deceased by Muhammad Aslam. According to the F.I.R. As many as seventeen persons were charged but effective shots have been attributed to four. But according to the statements of P.Ws.5 and 6, the number of assailants is the same but effective shots have been attributed to five. 9. The questions emerging for consideration of this court are: (i) whether the number of assailants was correctly described with their respective weapons (ii) whether the victims who were standing at a distance of 13 feet from the assailants could see whose shot hit one or the other deceased or the injured for that matter (iii) whether plight of the deceased and the injured was in fact wrought and brought by all of them or it could be doing of one, two or at the most three persons armed with .12 bore shot guns, especially when the victims of the occurrence at the relevant time were standing close to each other and (iv) Whether the persons charged besides Mukhtar and Munawar could have had a motive to join hands with .The latter two, when there is absolutely nothing on the record to show that the former on account of having any link or relation with the latter or their sister had an occasion to run into rage and commit a crime of this magnitude. 10. According to P.W.5, both the deceased and both the injured received firearm injuries at the same time, If so, it is next to impossible to notice whose shot hit the injured and whose shot hit the deceased. Who in the circumstances, is telling the truth and who is telling otherwise is anybody's guess. Had there been one or the two assailants standing at a considerable distance from each other, it could well have been possible to discern whose shot hit the deceased and whose shot hit the injured. But where all the assailants were standing close to' each other and so were the victims, it is humanly impossible to discern who fired the shot and whose shot hit the deceased or the injured particularly in a situation which was reigned by panic and pandemonium. The more so, when the total number of injuries found on the deceased as well as the E injured could be caused by one or two. L.G. Cartridges. The number of assailants in the circumstances of the case appears to have been exaggerated. It seems that most of the persons including the respondents have been charged because of previous enmity. The tragedy may have been enacted by Mukhtar who has gone into hiding or Munawar who has been acquitted because the deceased Shabbir was alleged to have illicit relations with their sister, but many who have no visible nexus with this part of the story have also been roped in. It is so because it is customary in this part of the country to throw wide the net of implication to rope in all those who could possibly pursue the case or do something to save the skin of the one who is innocent or who is actually responsible for the commission of the crime. The Court, therefore, is required to exercise much greater care and circumspection while appraising evidence. The testimony of the witnesses who are not only closely related to the deceased but have also a strong motive to falsely implicate the accused has to be scanned carefully. When scanned thus, it cannot be relied upon. 11. Let us assume that F.I.R., whose maker passed away before his examination in the court, cannot be looked into for any purpose yet the prosecution version neither rings true nor inspires confidence when a firearm entry wound found on the person of P.W. No,5 caused by a shot fired from a distance of 13 feet was accompanied by blackening which is H not possible beyond 3 feet. Especially when it has never been the case of the P.W. That any of the assailants fired at him from a close or contact range. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 354, it has been held that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet". Improvements and afterthoughts introduced to bring the ocular account in tune with the medical evidence which too tend to damage evidentiary worth of the evidence. 12. What relation Liaquat Ali had with Mukhtar and Munawar and why should .He join hands with them to expose himself to a serious charge involving capital punishment is a riddle which remained ,unanswered. Why should Painday Khan join hands with Munawar and Mukhtar is yet another mystery which has not so far been unveiled. What grievance Abdullah had to take arms
---
## Page 6
against the deceased and the injured is yet another tangle which went unraveled. We also failed to. Find any reason for firing at the deceased Rifaqat when he had no ill-will' against the assailants nor was he alleged to have resorted to any hole-and-corner activity. Possibility that the occurrence has not taken place in the manner described by the prosecution and that the charge has been thrown at the door steps of the respondents at random, cannot be ruled out. Opinion of investigating officer, against this background, about the innocence of lftikhar, Ashraf and Painday Khan which he reiterated in his examination does not appear to be unfounded when it was also confirmed by the DSP and the DPO concerned. Similarly, opinion of the learned Division Bench of the High Court about the partial blindness of Aslam in the circumstances of the case cannot be looked askance at. It would not, thus, be in accord with safe administration of justice to interfere with the finding of acquittal. 13. Why all the victims of the occurrence preferred to be lame ducks when they saw the assailants armed with lethal weapons, come towards them with sinister design and what was the occasion for the injured P. Ws. And the deceased to have a marathon session of more than 3 hours on the day of occurrence is yet another query which begs for an explanation. P.Ws.5 and 6 tried to explain by stating that the purpose was to plan about their departure to Islamabad but it is not a matter which calls for such a long session. Munawar and many others with alike role were acquitted but their acquittal was not challenged with that seriousness either before the High Court or before this Court. Anayat and Walayat acquitted co-accused who also had a motive to go hard on the complainant were also acquitted by the High Court but no exception was taken there against. 14. It is true. That the High Court has not happily recorded the reasons for acquittal of the respondents but it would not be of much consequence when the prosecution version is bristling With doubts from L whatever angle it is looked at Needless to say that even a single doubt if found reasonable, is enough to warrant acquittal of the accused. Above all else when initial presumption of innocence is strengthened on the acquittal of the accused, we would not like to interfere therewith simply because another view is equally possible. 15. For the reasons discussed above, this appeal being without merit is dismissed. Sd/- Ejaz Afzal Khan, J. Iqbal Hameedur Rahman, J. ' With the majority of two to one as I have appended my dissent. This appeal is dismissed. Sd/- Anwar Zaheer Jamali, J. ' ANWAR ZAHEER JAMALI, J.---I have had the benefit of going through the judgment proposed to be delivered in this appeal, articulated by my learned brother Ejaz Afzal Khan, J., thereby ordering dismissal of this acquittal appeal, being without merit: As I have not been able to subscribe to such conclusion, therefore, I propose to record my own reasons for dissent, which read as follows: 2. At the outset, it will be worthwhile to mention here that out of five respondents arrayed in this appeal as respondents Nos.2 to 6, respondent No,2 Liaqat Ali son of Shah Muhammad and respondent No,6 Fateh Muhammad son of Ali Akbar have died during the pendency of this appeal, thus, to their extent, this appeal stands abated. In view of this development, further discussion in this judgment, except general discussion, will be only with reference to the remaining three acquitted respondents Abdullah son of Akbar Ali (respondent No,3) Muhammad Aslam son of Noor Dad (respondent No,4), and Painday Khan son of Noor Dad (respondent No,5). 3. Briefly stating, relevant facts of the case are that on 14-12-1986, at 1700 hours, F.I.R. No,332/1986 was lodged by complainant Hakam Ali at Police Station Dinga District Gujrat for commission of offence under sections 302, 307, 34, 148 and 149, P.P.C., wherein fifteen accused including respondents Nos.2 to 6 herein, were nominated while two other accused were shown as unknown persons. A per contents of the F.I.R., the prosecution story was that on 14-12-1986, the complainant along with Tanvir, Ali Muhammad and Feroz was sitting in the courtyard of his house, while his three
---
## Page 7
sons Zamir Ahmed, Muhammad Zaman and Shabbir along with their friend Rafaqat Ali were present in the baithak of the house, when at about 1500 hours, they were attacked by the accused party, consisting of fifteen nominated accused and two unknown persons, raising lalkara that they shall teach a lesson to Shabbir for his immoral activities in the village. During the occurrence, Abdullah fired at Shabbir from his .12 bore gun, which hit him on his right leg, Mukhtar's…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.