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Petitioner: LIAQUAT HUSSAIN And Others VS Respondent: ABDUL MAJID And Other
Court Name: Supreme Court of Pakistan Judge(s): Ali Hussain Qazilbash, Muhammad Haleem, Zaffar Hussain Mirza Title: LIAQUAT HUSSAIN And Others vs ABDUL MAJID And Other Case No.:Criminal Appeals Nos. 40 and 41 of 1983 Criminal Appeal No. 1220 of 1979
JUDGMENT
Reported As: 1986 SCMR 1906 Result: Appeal dismissed Judgment JUDGMENT ZAFFAR HUSSAIN MIRZA, J.--The two appellants (in Criminal Appeal No. 41 of 1983) , namely, Muhammad Riaz and Faiz Ali were convicted by the Additional Sessions Judge, Sheikhupura Camp at Rawalpindi, inter alia. Under section 302, P.P.C. On three counts for the murders of Mst. Sughran, Mst. Anaran and Mir Zaman (hereinafter called the deceased), and were sentenced to death, besides fine etc. They were tried alongwith three other co-accused, namely, Abdul Majid, Mir Afsar and Muhammad Azram who were also convicted, inter alia, for murder on the aforesaid three counts and sentenced each to imprisonment for life and fine etc. Except Abdul Majid who was also sentenced to death. The convicts appealed against their convictions and sentences in the Lahore High Court, which heard their appeal with the reference for confirmation of death sentences made by the Additional Sessions Judge, under section 374 of the Criminal Procedure Code. The learned Judges of the High Court by their judgment, dated 29th May, 1982, while acquitting Abdul Majid, Mir Afsar and Muhammad Azram, upheld the convictions of the appellants under section 302/34, P.P.C. But altered the death sentence to life imprisonment. The sentence of fine and the alternate sentence of imprisonment in the case of non-payment of fine were also maintained. The criminal revision filed by the complainant for enhancement of the sentences of two of the convicts was also dismissed. 2. Convicts Muhammad Riaz and Faiz Ali filed a petition for leave to appeal against their convictions and sentences.
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3. Liaquat Hussain son of complainant Nadir Khan also filed a petition for leave to appeal against the judgment of the High Court. This Court granted leave in both petitions in order to examine the contention whether the convicts /appellants had a right of self-defence in the circumstances of this case, in view of injuries sustained by some of the accused and whether their convictions were sustainable in view of the fact that the High Court had rejected the version of the prosecution that the occurrence took place in the house of the complainant and the evidence of recoveries from the accused was held to be of doubtful nature. On the other side the question for consideration was whether the High Court was right in taking the view that the occurrence did not take place in the house of the complainant and whether on this account lesser sentence was rightly awarded to convicts /appellants Faiz Ali and Muhammad Riaz. Also the question of the culpability of the acquitted accused was to be considered. As the appeals arise out of the same judgment of the High Court they are being disposed of by this common judgment. 4. The occurrence in this case took place on 15th April, 1974, at noon time in village Chakki, Tehsil Gojar Khan, District Rawalpindi. According to the prosecution the occurrence took place in the house of Nadir Khan, whereas the counter-version put forward by the accused was that the occurrence took place in the house of Abdul Rehman father of the co-accused Azram Khan. It is common ground that both parties are inter-related. Abdul Rehman is the paternal-cousin of Nadir Khan complainant. Both these persons who have survived the deadly incident, have their houses opposite to each other separated by a small lane 5 or 6 feet vide. 5. According to the prosecution the main cause leading to the tragic events resulting in the death of three persons was a dispute over a transaction for the purchase of a piece of land. It is said that this piece of land was owned by Abdul. Rehman and was situate adjoining the land of complainant Nadir Khan. Abdul Rehman had entered into an agreement to sell this piece of land to one Gheba and had received earnest money of Rs.2,000 from the latter. However, as the land was situate near the land of the complainant, he asked Abdul Rehman to 1 cancel the transaction with Gheba and sell the same to him. Abdul Rehman agreed to this proposal provided that the complainant paid to him the amount of Rs.2.000 so that he could refund the earnest money to the previous purchaser. Accordingly Nadir Khan paid the amount to Abdul Rehman. Muhammad Azram, acquitted co- accused who is the son of Abdul Rehman Mst. Arshan Bibi wife of Abdul Rehman and Mst. Aksar Jan sister-in-law of Abdul Rehman, were displeased with this bargain, for reasons not disclosed by the prosecution. 6. In this background, the prosecution story proceeds to more immediate reasons for a conflict between the parties, furnishing the motive for the occurrence. It is said that the lands of complainant Nadir Khan and Abdul Rehman were irrigated by the storm water discharged from the street leading to open areas from the village. One day prior to the occurrence co-accused Azram was seen by complainant Nadir Khan raising the level of land so that the entire storm water should flow to their land and the land of complainant be deprived of the water. The complainant remonstrated with Muhammad Azram over this unfair act on his part. On this Muhammad Azram burst out, and declared that they would not sell their land to the complainant. Saying so he left his implements of work and proceeded towards his house. Shortly afterwards the complainant heard the sound of commotion from the direction of his own house. Apparently feeling concerned, he left his plough and went to his house. On reaching there he saw, Mst. Aksar Jan, daughter-in-law of Khan Zaman (deceased co-accused) and Mst. Arshan Bibi wife of Abdul Rehman throwing stones inside his house and from his house his daughter Khurshid Bibi and Riasat Bibi were also hurling stones at them in retaliation. In this exchange of stone throwing a stone hurled by Khurshid Bibi hit and injured Mst. Aksar Jan. In the meantime Abdul Rehman also appeared at the scene and he along with the complainant restrained the warring women-folk which ended the quarrel.
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7. Afterwards Khan Zaman (deceased co-accused) and his sons Riaz appellant and Abdul Majid (acquitted co-accused) being annoyed with the aforesaid incident went to the house of the complainant and maltreated him, his wife and daughters. The villagers intervened and separated them. Later in the day Liaquat (P.W.) son of the complainant, Aslam his brother-in-law and Mir Zaman (deceased) who was cousin of the complainant's wife arrived at his house and Mir Zaman started his efforts to bring about a reconciliation between the quarrelling parties. 8. In the aftermath of these unpleasant events we turn to what happened on the crucial day when the occurrence took place. At Katchi Rotiwela Mir Zaman, Aslam, Jalal, Abdul Rehman and Abdul Majid (acquitted co-accused) gathered at the house of the complainant in order to bring about a compromise. During the negotiations the complainant expressed his willingness to settle the dispute if his advance payment was refunded to him and also if Khan Zaman and others tender apology to him for their misbehaviour. The aforesaid mediators went over and consulted the other side. After some time Aslam and Mir Zaman came back to the house of the complainant and stated that Abdul Rehman had agreed to return the advance money after some time but Khan Zaman and others were not willing to apologise to the complainant and had demanded the hand of the complainant's daughter in marriage. The compromise talks thus failed to bring about a settlement between the parties. Subsequently at about noon time, the complainant, his son Liaquat (P.W.) Mst. Safidan, Mst. Sughran (deceased), Mst. Khurshid, Mst. Riasat, Noor Muhammad and his wife Mst. Anaran (deceased) were sitting in the courtyard of the complainant's house. Mir Zaman (deceased) and Aslam also joined them. At that time Khan Zaman (deceased accused) having stone in his hand, Muhammad Riaz, Abdul Majid and Faiz Ali accused armed with pistols, Mir Afsar accused also carrying stone in his hand, Muhammad Azram came there. On the instigation of Khan Zaman, Muhammad Riaz fired a shot at Mat. Sughran which hit her on the chest as a result of which she fell down. Abdul Majid fired at Mst. Anaran who was also hit on the abdomen and Faiz Ali fired at Mir Zaman who was hit on the left side of the abdomen and fell down. Then Riaz accused challenged Liaquat who tried to save himself by running towards a room of the house. Riaz fired at him but his shot missed and hit wooden frame of the door of the room. Mir Afsar accused injured Noor Muhammad with a stone on the back side of his head. In the meantime Liaquat (P.W.) closed the door of the room by bolting it from inside. Khan Zaman (deceased accused) put his hand inside the room in order to unchain the door but Liaquat gave him hatchet injury on his hand from inside. Then Muhammad Azram accused also tried to unchain the door by putting his arm inside the door and was likewise injured with the hatchet by Liaquat. The complainant and others who were unarmed entered into a room of the house and closed the door to save themselves. On the commotion many persons from the village came there and intervened. The assailants then left the scene. The complainant and others came out and found Mst. Sughran to have expired as a result of injury sustained by her. Mst. Anaran, Mir Zaman and Noor Muhammad, who had sustained injuries were, however, still alive and conscious. Nadir Khan complainant then went towards the police station to lodge the report but on the way he met the S . H. O . , Police Station, Jatli, who recorded his statement and the F I.R. Was subsequently registered. 9. On 16th April, 1974, Faiz Ali, Khan Zaman (deceased accused) and Muhammad Azram were arrested and on 18th April. 1974, the remaining accused Muhammad Riaz and Abdul Majid and Mir Afsar were arrested. Mst. Anaran died on 16th April, 1974 at 4-00 p. m. And Mir Zaman died on 21st April, 1974, at 3-00 a.m. The Investigating Officer recorded the statements of the last mentioned two deceased before their death. He also secured .32 bore lead bullet from the wooden frame of the door in the house of the complainant, one .32 bore empty and two 38 bore empties from the courtyard of the house, besides the blood-- stained earth. He also secured blood-stained earth from the house of Abdul Rehman father of accused Muhammad Azram. A hatchet was produced by Liaquat (P.W.) before him. Faiz Ali appellant is said to have produced .32 bore revolver on 18th
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April, 1974, which matched with the crime empties (Exh.P.3) secured from the spot. Similarly Riaz appellant also produced .38 bore (Exh.P.11) revolver on 18th April, 1974, which matched with two crime empties recovered from the spot and the bullet (mark 'B') found in the wooden frame of the door of the house of the complainant. 10. Before the trial could commence accused Khan Zaman died and the remaining five accused were put to trial. Out of these accused three acquitted accused had pleaded their non-presence at the time of occurrence; however, the convicted appellants had given their own version of the occurrence although Faiz Ali had also denied his presence. It may be stated that Muhammad Riaz appellant and Abdul Majid acquitted accused are brothers and sons of Khan Zaman deceased accused. As already mentioned Muhammad Azram accused is the son of Abdul Rehman and nephew of the daughter-in-law of Khan Zaman accused. Mir Afsar and Faiz Ali accused are the sons of nephews of Khan Zaman. It has already been observed that the accused are also related to the complainant. The version of the accused party as reflected in the section 342, Cr.P.C. Statement of Muhammad Riaz appellant is as under:- "Q. Why this case against you? A. Due to enmity. On the alleged day of occurrence Mir Zaman deceased. Noor Muhammad, Nadir, Nazar Hussain, Bostan, Mst. Sughra, and Mst. Anaran armed with sticks, fire-arms, hatchet, sword and stones lodged an attack and injured me, Azram and Mst. Aksar Jan and at our alarm supporters of both sides turned up and there was pendimonium. Thereafter, I do not know who injured whom. The cross---complainant filed by late Khan Zaman accused is pending in this Court. The complainant-party has brought this false case against us to cover their own aggression." The accused also denied the recoveries allegedly made from their possession and other prosecution allegations. Mst. Aksar Jan (D.W.) was examined in defence in support of the defence. 11. From the accused side four persons were injured. Mst. Aksar Jan had a lacerated wound on the eyebrow bruise on the eyelid and a small lacerated wound on the bridge of the nose. Muhammad Riaz had one lacerated wound on the head. The injuries on the said two persons were simple and caused with blunt weapons. Khan Zaman, deceased accused had an incised wound 2-1/4" x 1/4" skin deep on the back of right forearm. Muhammad Azram accused, had also incised. Wound 3" x 1/2" x1/4 skin deep on left forearm inner side of the wrist. The incised wounds found on the persons of the said two accused were simple caused with a sharp-cutting weapon. On the side of the complainant party the three deceased had each received a single fire-arm injury. Mst. Anaran deceased had wound of entrance 1/4 x 1/4 x 1-1/2" above the umblicus with the slight charring. There was a corresponding wound of exit on the right side of the abdomen. Mir Zaman deceased had a circular wound of entrance on outer left side of abdomen 11" below costal margin, 11" above the level of umbilicus, 1/2 x 1/2. There was no blackening on the shirt or the skin. Mst. Sughran Bibi, deceased was found to have received an oval wound of entrance 1/3" x 1/4 on the front of left chest just inner to the left nipple. There was burning and blackening around the edges of the wound. There was also blackening on the shirt. The wound of exit was on the back of the chest near lower angle of scapula. Noor Muhammad had sustained a lacerated wound on the back of the right side of head. 12: Thus, we have before us two rival versions of the occurrence, in which each party claims to have been the victim of aggression by the other. The crucial point on which the question as to which party was the aggressor turns is the real venue of the occurrence. One circumstance which has assumed vital importance in this regard and which was emphasised by both sides, was the fact that the Investigation Officer found a trail of blood from the house of the complainant to the house of accused Muhammad Azram i.e. The house of his father Abdul Rehman. Without going into the question of the culpability of the accused or the extent of their liability, the first question to be determined is the place of occurrence. According to the prosecution the trail of blood was the
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result of blood oozing out from the injuries sustained by Khan Zaman (deceased accused) on his hand and Muhammad Azram accused on his arm inflicted by Liaquat (P. W.) with a hatchet when they attempted to unchain the door of the room in which he had taken refuge. On the other hand the accused party contends that the trail was left by the fleeing injured who subsequently died, after receiving bullet injuries when they decamped from the scene of violence in the house of Abdul Rahman. The manner in which the two members of the accused party sustained injuries as described by Liaquat (P.W.) has been disbelieved by the trial Court as well as the High Court for very valid reasons. The F.I.R. Which is the earliest version of the prosecution case does not disclose this part of the story that Liaquat had taken refuge in the room and closed the door from inside, which the aforesaid accused tried to open by inserting their hands one after the other. In any case it does not appeal to reason that if one is injured from inside the other would be so foolish as to repeat the dangerous process. The hatchet allegedly used by Liaquat was also not blood-stained and there were no blood marks found on either side of the door. The High Court having disbelieved this part of the prosecution story and having regard to the fact that it was Nadir Khan complainant who had the grievance, in view of the breaking down of the transaction of sale of land and insult to which his womenfolk were subjected, reached the conclusion that: "It is more likely that deceased got fire-arm injuries on chest and abdomen in the house of Abdul Rehman where some blood fell and the injured ran, or were taken to their house dropping blood all the way. Out of the two probable versions, it is exiomatic, that one favouring the accused is to be taken into account." 13. In reaching this conclusion the High Court, however, took no note of some important circumstances which if taken into consideration, it cannot be said that the probabilities of the two rival versions as to the place of occurrence were equally balanced. It is in the evidence that a bullet imbeded in the wooden frame of the door in the house of the complainant was recovered and three crime empties were also recovered from the courtyard of the complainant's house, two of which matched with the revolver secured from Muhammad Riaz appellant and one empty which matched with the weapon secured from Faiz Ali appellant. Besides the body of one deceased and two deceased in injured condition, along with blood-soaked earth were found in the house of the complainant. Mst. Sughran Bibi deceased received a fire-arm injury from a very close range, passing through her chest, causing extensive damage to internal organs including both lungs and the heart. In the opinion of the medical officer she must have died instantaneously. Therefore, she could not have been able to walk much less run away from the spot. In the charged atmosphere in the wake of three persons being critically injured by fire weapons, in my opinion it is difficult for the remaining associates of the injured or deceased to keep their cool and exercise their mental faculties in the calculated manner so as to remove their dead and injured to another place, in order to make up a false case of assault on them in their house. The inference drawn by the High Court, with due respect is farfetched and does not receive support from the circumstances of the case. Besides merely because the explanation offered by the prosecution as to the injuries on the person of Khan Zaman and Muhammad Azram is unbelievable is no ground for holding that the place of occurrence was not the house of Nadar Khan complainant. In these circumstances I am unable to agree with the view that prevailed in the High Court in this respect and hold that there is sufficient evidence that the occurrence took place in the courtyard of the house of Nadir Khan complainant. 14. Having determined the crucial question of the place of occurrence, the next question is whether the prosecution case as put up at the trial has been proved bringing home the guilt to the accused. The case was sought to be supported by several pieces of evidence, namely, motive, dying declarations of two deceased Mst. Anaran and Mir Zaman, medical evidence, recoveries of crime weapons and other incriminating articles and finally the ocular testimony of two witnesses
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Nadir Khan, complainant (P.W.16) and his son Liaquat Hussain (P.W.14). I have carefully considered each piece of evidence in the light of the record. Taking up first the motive evidence, the High Court rightly rejected the first and earliest part of the alleged motive that Nadir Khan having once promised to give the hand of his daughter, Mst. Khurshid Bibi in marriage to appellant Muhammad Riaz, subsequently backed out of his promise which soured the relations between the parties. This part of the alleged motive seems to be an afterthought as it finds no mention in the F.I.R. Besides it seems there was no bitterness on any matter between the parties, otherwise Abdul Rehman would not have broken his transaction of sale with Gheba Khan for the sake of Nadir Khan. Clearly, therefore, there was no serious enmity existing between the parties, until one day before the date of occurrence, when Nadir Khan and Muhammad Azram accused quarrelled over the raising of his land by the latter. The prosecution version of what happened on the previous day resulting in exchange of stone throwing by the womenfolk of the two parties,, namely, Abdul Rahman and Nadir Khan has already been stated. The accused in their statements have stated that they were the victims of the aggression made by the complainant party and have been involved due to enmity but the nature of this enmity has not been explained in their statement, nor was any serious attempt made to challenge this part of the prosecution story relating to the events that took place a day earlier to the date of occurrence. Therefore, there appears nothing in the evidence to discredit the testimony of the complainant on this part of the motive. The consideration of the evidence as to how the occurrence took place will be taken up a little later. 15. The dying declarations of the two deceased were rejected by the High Court on the ground that these were incorporated in section 161, Cr.P.C. Statements recorded by the Investigating Officer who made no attempt to have the statements recorded in accordance with law and were in such minute detail that the deponents could not have had knowledge of some of the facts stated therein. Additionally these statements were a faithful reproduction of the F.I.R., part of which relating to the manner in which Khan Zaman (deceased accused) and Muhammad Azram accused received injuries, has been disbelieved. I am inclined to agree with this view and consider that the evidence of dying declaration is not of unimpeachable quality to be relied upon in a case of capital charge. 16. It will be appropriate at this stage to address the question of ocular testimony. The two witnesses are father and son, but as the occurrence took place in their house they are natural witnesses. There is no good reason to doubt their presence. So far as Nadir Khan complainant is concerned, it is admitted in the version of the accused that he was present at the time of occurrence. But the important question is whether the occurrence took place as described by him. On a careful analysis of the evidence of Nadir Khan it appears that a scuffle over the raising of the level of land by Muhammad Azram had taken place one day before the day of occurrence. The evidence of Nadir Khan complainant is consistent on this aspect of the case with the F.I.R., which is the earliest version recorded soon after the occurrence. This part of the prosecution story appears to have gone in unchallenged and stands proved on the record. This seems to me to be the main cause for the quarrel that ensued and was followed up by a quarrel between the womenfolk of the two sides. It is common that where women are involved it becomes a question of honour and such incidents generally provoke very strong and emotional reaction, ultimately involving the men on the two sides. However, the evidence of Nadir Khan shows that the heads of the two families, namely, he himself on one side and Abdul Rehman on the other side, still maintained their equilibrium. They intervened and restrained their respective womenfolk, subsiding the quarrel for the time being. This is indicative of the fact that the excitement and fierce was not of such magnitude so as to result in violence on the next day with fatal consequences. There is nothing unnatural for these two persons to behave in such manner if one takes into consideration the fact that they were after all relations and the conflict was anything but trivial. It is quite natural that the
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quarrel between Muhammad Azram and Nadir Khan, may have prompted the former a young man to have asserted that his father Abdul Rehman should not conclude the deal of the sale of land with the latter. However, no reason has been assigned by the prosecution, why if Abdul Rehman had decided to dispose of his land to Gheba, Muhammad Azram, Mst. Arshan Bibi wife of Abdul Rehman and his sister-in-law Aksar Jan were opposed to the transaction in respect of the same land in favour of Nadir Khan. It is, therefore, not believable that these persons were opposed to the transaction in favour of Nadir Khan right from the beginning before the quarrel that took place on the previous day of the occurrence. According to the complainant's account after the quarrel between the womenfolk was subsides another incident took place on the previous day, which brought Khan Zaman (deceased) accused) and his two sons Muhammad Riaz appellant and…
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