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Petitioner: ALI AHMAD AND 2 Others VS Respondent: The STATE
Court Name: Supreme Court of Pakistan Judge(s): Qaisar Khan, Malik Muhammad Akram, Durab Patel Title: ALI AHMAD AND 2 Others vs The STATE Case No.: Criminal Appeal No. 74 of 1976 Criminal Appeal No. 458 of 1968 Date of Judgment:1978-04-23 Reported As: 1978 SCMR 384 Result: Appeal allowed
JUDGMENT
JUDGMENT MUHAMMAD AKRAMJ.-The three appellants herein namely Nazir Ahmad, Bashir Ahmad and Ali Ahmad along with their father Khushi Muhammad were tried under section 302/34, P. P. C. For the double murder of Ghulam deceased and Wazir deceased but were acquitted by the Additional Sessions Judge, Lyallpur on the 21st of December 1967. The State went up in appeal against the acquittal of the three appellants and a Division Bench of the Lahore High Court at Lahore, in reversing the judgment of the trial Court, has convicted them under section 302/34, P. P. C. And sentenced them each to transportation for life and a fine of Rs. 3,01)0 on each of the two counts. This is their direct appeal under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan, 1973 from their convictions and sentences by the High Court. To begin with it shall be helpful to narrate in some detail and outline of the prosecution case as disclosed in the evidence. The incident proper took place at about 9/10 a.m. On the 3rd of April 1966 in the area of Chak No 591/GB commonly known as village Gangapur, Police Station Lundianwala, District Lyallpur. Ghulam deceased was a tenant of Sardar Rashid Ahmad Khan in Chak No. 635/GB and used to reside there with his family. Similarly, Khushi Muhammad, acquitted accused was also his tenant in the same Chak and used to reside there. In about the year 1960-61, Nazir Ahmad appellant developed illicit intimacy with Mst. Zohran, wife of Ghulam deceased and this was responsible for creating bad blood between the two families. Ghulam deceased therefore, decided to return to live in Chak No. 569/GB and settled there. About one and a half years later Khushi Muhammad and his sons also left Chak No. 635/GB and migrated to village Gangapur. In this manner the two families were separated.
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In spite of this, Ghulam deceased seems to have entertained the grudge and on the 1st of December 1965, he allegedly gave a beating to Nazir appellant while he was on his way to school in the area of Chak No. 635/GB for which he was being prosecuted under section 308, P. P. C. This case against him was still pending in the District Court, at Lyallpur and was fixed for hearing for the 4th of April 1966, when this unfortunate incident happened. It is alleged that before the date of hearing in that case, on the 2nd of April 1966, Khushi Muhammad, father of the appellants and Ghulam Ahmad Gujjar (P. W. 11) resident of Chak No. 591/GB (Gangapur) together saw Muhammad Akbar Khan (P. W. 9) resident of Chak No. 569/GB', at his arhit shop at Jaranwala and requested him to bring about a compromise between the two parties in that case. On this Mohammed Akbar Khan assured them that he would contact Ghulam deceased and bring about the desired compromise between them. It may be stated here that at the relevant time both Ghulam Ahmad and Muhammad Akbar Khan (P. Ws.) were the Chairmen of their respective Union Councils and had also their separate arhat shops in Jaranwala. Accordingly, Muhammad Akbar Khan (P. W.) on his return to his own Chak No. 569/GB is stated to have summoned Alam khan (P. W. 13) resident of Chak No. 568/GB through a messenger sent for the purpose. In response to this Alam Khan (P. W.) came on bicycle to Chak No. 569/GB to see Muhammad Akbar Khan (P. W.) very early in the next morning on the aid of April 1966. But on arrival there he found that Muhammad Akbar Khan was not at his dera and had already left the village in some other connection. He was however, met by Ghulam deceased and his brother Hussain complainant (P. W. 12) who were waiting for him at his dera and they apprised him of the purpose for which he had been sent for by Muhammad Akbar Khan in order to bring about a compromise between the parties in the criminal case pending in the Court against Ghulam deceased. Soon afterwards the three left for the errand to see Ghulam (P. W. 11) in his Chak No. 591/GB (Gangapur) for bringing about the desired compromise through him with Khushi Muhammad and his sons. On the way Alam Khan P. W. Decided to call on Wazir deceased and Muhammad Ayub (P. W. 14) residents of Chak No. 8/GB and they took them along so as to form a panchayat to call on Ghulam Ahmad (P. W.) at Gangapur for bringing about the desired compromise. In Chak No 8/GB Alam Khan P. W. Left his bicycle at the Dera of Muhammad Ayub Khan (P. W.) and while Wazir deceased and Ghulam deceased both got on to the mare, their other three companions made for Gangapur on foot. So all the five of them namely Ghulam deceased, Wazir deceased, Hussain complainant, Alam Khan and Muhammad Ayub Khan (P. Ws.) arrived in Chak No. 591/GB (Gangapur) on 3rd of April 1966 in the morning. According to the prosecution evidence at the trial, Ghulam deceased and Wazir deceased riding on the mare called on Ghulam Ahmad (P. W. 11) at his Dera in the village, while their three companions waited for them outside at some distance. Ghulam Ahmad P. W. Told them that the criminal case against Ghulam deceased was already fixed for hearing on the next day for the 4th of April 1966 and they should contact him again in the premises of the District Courts, Lyallpur where in the presence of the parties the compromise could be effected between them. On this they decided to return to their villages. All the five namely Ghulam deceased and Wazir deceased on the back and Hussain complainant, Alam Khan and Muhammad Ayub (P. Ws) following them on foot left Gangapur. At a distance of about one square from the village abadi the four accused suddenly emerged out of a wheat field and confronted them. According to the F. 1. R. Nazir was armed with a revolver, Bashir with a toka, Ali Ahmad had a hatchet and Khushi Muhammad a lathi. Khushi Muhammad caught hold of the bridle of the mare and Nazi. Ahmad opened the fire and Wazir deceased and Ghulam deceased were dragged down from the mare. At first Bashir and Ali Ahmed inflicted toka and hatchet blows at Wazir deceased and then Nazir fired twice at him resulting in the injuries to him. On this Ghulam deceased ran for his life but Nazir, Bashir and Ali Ahmad followed and' over--took him and
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encircled him at a distance of about one and a half squares and the;! Then inflicted injures on him with the pistol, toka and hatchet. Thereafter, Khushi Muhammad with the mare and the other three accused with their respective weapons of offence left the place. Hussain complainant, Alam Khan and Muhammad Ayub P. Ws. Had witnessed the occurrence. They were empty-handed and did not go near to rescue their companions for fear of their own lives. After the accused had left they found that both Wazir Khan and Ghulam had died at the two respective places. Hussain complainant deputed Ayub Khan and Alam Khan (P. Ws.) to keep a watch at the two dead bodies and himself left for the Police Station Lundianwala in order to lodge the report there. On arrival at the Railway Station Buchiana he learnt that the police was already present a: Chak Naroan in some other connection. He therefore, went there and made his statement (Exh. P. A.) at Chak Naroan which was recorded by Mumtaz Hussain, Head Constable at 11-45 a.m. On the basis of this statement the formal F. I. R. (Exh. P. A./ I) was afterwards recorded at the Police Station, Lundianwala, situated at a distance of 12 miles ,from the place of occurrence at 1-30 p.m. After having recorded the statement of the complainant, Mumtaz Hussain, Head Constable came to the place of occurrence at 12-00 noon to start the investigation and complied with the necessary formalities at the spot. He despatched the two dead bodies under escort to the mortuary for their post-mortem examinations. He secured the blood-stained earth from the two respective places where the dead bodies of Wazir Khan and Ghulam deceased were lying murdered and sealed them into separate parcels. He also found two chaddars lying near the dead body of Wazir deceased and secured them vide memo. Exh. P. M. In addition to them, he found two more chaddars lying at a short distance from the dead body of Wazir deceased and they were also separately secured vide memo. Exh. P. L. These recoveries memos. Were attested by Amir Aslam Khan (P. W.) resident of chak No. 569/GB and Ghulam Ahmad (P. W. 11) (Member, Union Council Chak No. 591/GB). He also took into his possession the mare from the house of Khushi Muhammad accused vide memo. Exh. P. E. Which was attested by Amir Aslam Khan and Akbar Khan P. Ws. Residents of Chak No. 549/GB. On the same day, Abdul Haq Bajwa, Sub-Inspector reached the spot at about 8-00 p.m. And took over charge of the investigation into the case. On the next day, on a secret information received by him, he arrested Nazir Ahmad appellant from near the Buchiana Railway Station. On his personal search he recovered the revolver (Exh. P. 1) containing two empty cartridges and one missed cartridge in its chamber and made them into a sealed parcel vide memo. Exh. P. B. At the time of his arrest Nazir accused was wearing the blood-stained shirt (Exh. P. 13) and blood-stained chaddar (Exh. P. 14). These were also got removed and taken into possession vide memo. Exh. P. C. On the same day Ghulam Ahmad (P. W. 11) produced Khushi Muhammad accused and Bashir appellant before the Sub-Inspector who arrested them. Bashir led to the recovery of the blood- stained 1 toka (Exh. P. 4) from a heap of dung cakes in his house which was also made into a sealed parcel vide memo. Exh. P. D. These recovery memos. Were attested by Amir Aslam Khan and Muhammad Akbar Khan (P. Ws.) both residents of Chak No. 569/GB and Sardar Muhammad, resident of Chak No. 591/GB (not produced). Ali Ahmad accused appellant was not traceable and could not be arrested until on the 30th of April 1966. On the 4th of April 1966 at 9-00 a.m. Doctor Ahmad Ghulam Muhammad (P. W.) Medical Officer, District Headquarters Hospital, Lyallpur, conducted the post-mortem examination on the dead body of Wazir deceased. In all it had 14 injuries. These consisted of one gunshot wound, two bullet wounds one of which was the entry and the other exit wounds, 10 incised wounds caused by sharp- edged weapon and two abrasions caused by blunt weapon. In the opinion of the doctor the stomach of the deceased contained semi-digested food material. The probable time that had elapsed between the injuries and death was few minutes and the probable time that had elapsed between the death and the post-mortem examination was about 23/14 hours. On the same day at
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10-30 a.m. The same doctor also conducted the post-mortem examination on thedead body of Ghulam deceased. It had in all eight injuries on it. These consisted of five incised wounds and two superficial linear cuts caused by sharp-edged weapon and an abrasion caused by blunt weapon. The stomach of the deceased was found to contain semi-digested food. In the opinion of the doctor the probable time that had elapsed between the injuries and death was few seconds to half a minute and between the death and the post-mortem examination was about 24/25 hours. In support of its case at the trial the prosecution relied on the ocular evidence of the three eye- witnesses namely Hussain (P. W. 12), Alam Khan (P. W. 13) and Muhammad Ayub Khan (P. W. 14) corroborated by the evidence of the motive and the recoveries of the revolver and blood-stained clothes from Nazi, appellant and the blood-stained toka from Bashir appellant. All the four accused pleaded not guilty to the charges. Nazir appellant admitted that Ghulam deceased wrongly suspected him for having contacted illicit relations with his wife. He also admitted that about 6/ 7 years back Ghulam deceased and his family had shifted from Chak No. 635/GB, and thereafter he and his family also migrated from that Chak to village Gangapur. He further admitted that Ghulam deceased had attacked him for which a case was registered against him under section 308, P. P. C. Which was pending at the time of the occurrence to the District Court at Lyallpur. These facts were also admitted by the other accused as well. But they professed innocence and stated that they had been falsely implicated due to enmity. They however, did not lead any evidence in defence. The learned Additional Sessions Judge disbelieved the prosecution version to the effect that Khushi Muhammad accused and Ghulam Ahmad P. W. Had approached Akbar Khan P. W. At Jaranwala on the 2nd of April 1966 and that under his instructions the eye-witnesses and the two deceased had gone-to Chak No. 591/GB (Gangapur) in order to negotiate a compromise with the appellants through Ghulam Ahmad P. W. According to the trial Court Ghulam Ahmad P. W. Did not support the prosecution version to the effect that he along with Khushi Muhammad had ever gone to see Muhammad Akbar Khan (P. W.) at Jaranwala and had requested him to bring about this compromise. In that connection he merely deposed that about 15/20 days prior to the occurrence Khushi Muhammad accused had requested him for bringing about a compromise between the parties and he wanted to contact Akbar Khan P. W. But could not see him. In the Committing Court Akbar P. W. Stated that Alam Khan P. W. Came to his Dera on the 2nd of April 1966 and had stayed with him for the night. But at the trial he gave out that he came to his Dera only on the morning of the 3rd April 1966 in his absence after he had already left the village. Even otherwise there was no earthly reason and discernible anxiety on the part of Alam Khan P. W. To have left his own Chak to arrive at the Dera of Akbar Khan very early while it was still dark. Moreover, according to Akbar Khan, Alam Khan was related to Ayub Khan P. W. And Wazir Khan deceased who had cordial relations with Ghulam Ahmad P. W. He had therefore, sent for him (Alam Khan) so that he would introduce Ghulam deceased and Hussain complainant to them (Wazir Khan deceased and Muhammad Ayub (P. W.) and they in turn would prevail upon Ghulam Ahmad P. W. To intervene and bring about the desired compromise. In this connection Alam Khan (P. W.) however, gave a different version. He stated that the message sent to him by Akbar, Khan was only this much that he had to effect a compromise between Ghulam deceased and the appellants and that on his way to Gangapur, he of his own thought it proper to associate Wazir Khan deceased and Muhammad Ayub P. W. And requested them to accompany him to Gangapur. Moreover, the trial Court found it hard to believe that Ghulam deceased and Hussain P. W. Were present at the Dera of Akbar Khan when Alam Khan came there at the early hours of the morning on the day of the occurrence. There was nothing in the evidence of Akbar Khan to show that he had called them to his Dera for sending then with Alam Khan to see Ghulam Abroad for the purpose. In conclusion the Court held that the evidence led by the prosecution was not worthy of credit on this part of the
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case to the effect that Alam Khan, Ghulam deceased and his brother Hussain P. W. Bad started from the Dera of Akbar Khan very early w the morning of the fateful day. In the ordinary course, according to the learned Additional Sessions Judge Alam Khan and Muhammad Ayub Khan, both- - being elderly persons should have travelled by mare from Chak No. 8, but it was not understandable as to why they were made to go on foot while the mare was occupied by the two comparatively younger persons namely Ghulam and Wazir. In the opinion of the learned trial Judge there was yet another infirmity in the prosecution case. In the Committing Court the three eye-witnesses had stated that they and the two deceased persons had a meeting with Ghulam Ahmad P. W. At Gangapur for about half an hour in connection with their mission for arriving at the compromise. But Ghulam Abroad did not support this version. In his evidence before the Committing Court be deposed that only the two deceased persons namely Ghulam arid Wazir had come to him and had a talk with him for about five minutes. In the presence of this apparent contradiction, the prosecution thought it fit to make an improvement in this version and at the trial the three eye-witnesses changed their stand to depose that on arrival in Gangapur both Ghulam and wazir Khan who were riding the mare ahead of them, had gone inside the Dera of Ghulam Abroad and had a talk with him for five minutes only The trial Judge further observed that even the arrival of Ghulam and Wazir Khan at the Dera of Ghulam Abroad on the fateful morning was highly doubtful. In his opinion no reliance could be placed on the evidence of Ghulam Ahmad P. W. On the point. He admitted that he had friendly relations with Muhammad Akbar Khan and he had made this incorrect statement either under his influence or on account of his strained relations with the accused party. In conclusion the Court held that neither the three eve-witnesses nor the two deceased had gone to see Ghulam Ahmad P. W. On 3-4-1966. In dealing with the actual occurrence, the learned Additional Sessions Judge observed that the story woven by the prosecution round it was so improbable that it could not be believed. There was no evidence to show that the accused had any prior knowledge that the trio deceased would be going to village Gangapur. There was also no reason to believe that the accused could have anticipated in advance that they would pass by the wheat field in which they were lying in ambush for them. Moreover, according to Alam Khan he took Wazir Khan and Ayub Chan with him partly because he apprehended danger at Gangapur because Ghulam deceased was inimical towards the accused party and therefore, in the opinion of the trial Curt, there was no reason for the five of them to have gone there unarmed. Even otherwise, according to the learned Additional Sessions Judge, there were contradictory versions given by the witnesses before the police, in the Committing Court and at the trial about the actual occurrence at the spot. In the opinion of the Court these contradictions were so glaring as to lead one to believe that the eye-witnesses had not even seen the occurrence. Also, according to the trial Court the attitude of the accused and the conduct of the eye-witnesses as narrated by them was quite abnormal and strange and this conveyed the impression that they were not in fact present at the place of occurrence and had not seen it. In the absence of any independent evidence, the Court also doubted the recoveries of the revolver as well as the blood- stained clothes from Nazir accused and the blood-stained toka from Bashir Ahmad accused. In conclusion the learned Additional Sessions Judge was of the opinion that the evidence produced by the prosecution was completely false and fabricated. As such the prosecution failed to bring home the guilt to all the four accused who were therefore, acquitted. In the High Court the learned State Counsel in support of his appeal argued that the ocular account of the occurrence furnished by the three eye-witnesses was fully corroborated by the evidence relating to the motive and the recoveries and that the reasons given by the trial Court for acquitting the accused were wholly artificial. He submitted that the occurrence bad taken place in broad daylight when there could be no possibility of any mistaken identity of the accused. According to him Alam Khan and Muhammad Ayub (P. Ws.) bad absolutely no motive to falsely
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implicate them and there was no reason to discard their testimony. On the other hand, the learned counsel for the accused contended that the prosecution story was a patent concoction, the prosecution witnesses were interested and unreliable, the recoveries were bogus and there was no independent corroboration of the ocular evidence. The High Court observed that Ghulam Abroad (P. W.) who was a co-villager of the accused did not fully support the prosecution version. He was declared as a hostile witness and was cross- examined by the Public Prosecutor. There were also some discrepancies and contradictions pointed out in the statements of P. Ws. With regard to certain events which had taken place before the occurrence on which reliance was placed by the trial Court in concluding that the eye- witnesses and the two deceased persons did not go to village Gangapur to see Ghulam Ahmad P. W. On the day of the occurrence. But in the opinion of the High Court these discrepancies were not sufficiently material and too much importance could not be attached to them to belie the version of .The prosecution on this part of the case. In the opinion of the High Court the learned trial Judge in forming his opinion had ignored certain important and admitted facts which went a long way to show that the visit of the deceased persons and their companions to Ghulam Ahmad P. W. Was natural and probable. According to the High Court it was an admitted fact that Ghulam deceased had injured Nazir Abroad appellant and a case under section 308, P. P. C. Was registered against him. In his cross-examination Akbar Khan (P. W.) admitted that Khushi Muhammad accused had told him that he was a poor man and so was Ghulam deceased and therefore, he should arrange a compromise between them as he was unable to bear expenses of the criminal case. Even Ghulam Ahmad (P. W.) who did not fully support the prosecu--tion version and had made a number of obliging concessions in his cross-examination by the defence, stated that 15/20 days prior to the occurrence Khushi Muhammad had asked him to bring about a compromise between him and Ghulam deceased. This, in the opinion of the High Court was sufficient to show that Khushi Muhammad accused wanted to get rid of the criminal case as he was unable to bear its expenses and Ghulam deceased being an accused in that case was also deeply interested in the compromise. Admittedly, the next date of hearing in the case had been fixed for 4th of April 1966 and therefore, Ghulam deceased was naturally anxious to arrive at a compromise before it. He was a resident of Chak No. 569/GB situated at a distance of 7/8 miles from the spot and Wazir Khan belonged to Chak No. 8/GB situated at a distance of 21 miles from the place of occurrence. It was not denied that both of them ware killed in the area of village Gangapur to which the accused belonged, According to the High Court the prosecution came forward with a definite version of the purpose of their visit to the village and this version was sufficiently corroborated from the circumstances narrated above, and there was no evidence on the record to show that they had any other business at Gangapur. In that connection the. High Court observed that. a suggestion was however, put to Hussain complainant that the deceased had gone to village Gangapur to commit theft and were murdered during the dead of the night. But he repudiated the suggestion as incorrect. In the opinion of the Court there was nothing on the record to show that any of the deceased persons was ever involved or convicted in any theft case. Even otherwise this suggestion put to the witness was too vague to deserve any serious attention. As a result of this discussion the High Court concluded that the deceased persons had in fact gone to village Gangapur for negotiating a compromise through Ghulam Ahmad (P. W.) The Court observed that there was nothing unusual in Alam Khan (P. W.) visiting the dera of Akbar Khan (P. W.) in the early hours of the morning while it was still dark on the 2nd of April 1966 and the reason for it was not far to seek. Alam Khan had to go to village Gangapur situated at a distance of about 7/8 miles and had left his house early so as to reach Gangapur in time to, contact Ghulam Ahmad (P. W.) before he could leave his place. The High Court further observed that the plan of the place of occurrence showed that a private path passed by the field in which Wazir deceased was lying murdered. The deceased
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persons were on a mare and the eye-witnesses on foot and therefore, they could) not have adopted any pathway at their convenience. Even otherwise the eye-witnesses were not cross- examined about it as to why they had adopted the private path to furnish the necessary explanation for it. In the opinion of the High Court the prosecution was not at all bound to show as to how the accused came to know about the visit of the deceased persons to village Gangapur and that they would follow the private path along the wheat field for their return journey. The Court observed that it is in the evidence that the eye-witnesses were empty-handed and had seen the…
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