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Petitioner: MUHAMMAD AHMAD And Another VS Respondent: THE STATE And Other
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Bashir Jehangiri, Raja Afrasiab Khan, Zia Mahmood Mirza Title: MUHAMMAD AHMAD And Another vs THE STATE And Other Case No.:Criminal Appeals Nos.205 and 206 of 1992 Criminal Appeal No. 20,5 of 1992
JUDGMENT
Reported As: 1997 SCMR 89 Result: Appeals dismissed Judgment JUDGMENT ZIA MAHMOOD MIRZA, J.---This judgment will dispose of both the abovementioned criminal appeals as they are directed against the same judgment of the Lahore High Court, Lahore. 2. Facts relevant for the disposal of these appeals, briefly are that on 25-11-1987, Muhammad Iqbal complainant P.W.6 was going from his house to his shop in Sarafan Bazar, Kasur where he used to sell the books. At 8-45 a.m., he reached near the shop of his brother Irshad which, to, was in the same bazar Irshad was present in his shop alongwith his employee Arshad (given up P.W.) and Muhammad Munawar Khan P.W.7 was also there. All of a sudden, Muhammad Ahmad appellant, armed with a carbine and his father Maqbool Ahmad empty-handed appeared on the scene. Maqbool Ahmad accused raised a Lalkara that Irshad be taught a lesson for having caused injuries to Mahmud Ahmad, whereupon Muhammad Ahmad fired a shot from his carbine, which hit Irshad on the right side of his back. He fell down. The complainant and Arshad (given up P.W.) tried to apprehend the accused, but they succeeded in running away. Irshad was removed to the hospital by the complainant with the help of Rafiq tailor master but he expired on the way. Motive for the occurrence was that 7/8 months prior to the occurrence, somebody had fired at Mahmud Ahmad, son of Maqbool Ahmad accused and brother of Muhammad Ahmad accused. It was suspected by the accused that Mahmud Ahmad was attacked because of business rivalry with Irshad. The accused, therefore, murdered Irshad at the instance of Mahmud Ahmad. 3. Prosecution rested its case on the ocular testimony, the evidence of motive, medical evidence and the recoveries. Eye-witness account of the occurrence was furnished by Muhammad Iqbal
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complainant who appeared as P.W.6 and Muhammad Munawar Khan P.W.7. The motive was proved by Muhammad Iqbal P.W.6, Shaukat Ali P.W.5 and Muhammad Amin P.W.8. Muhammad Rafiq P.W.11 deposed about the recovery of carbine P-6 with an empty P-7 in its chamber alongwith to live cartridges P-8/1-2 at the instance of the present appellant. Medical evidence, of course, was given by Dr. Muhammad Hussain P.W.9 who had performed post-mortem examination of Arshad deceased. Prosecution also relied upon the positive reports of the Chemical Examiner, Serologist and the Forensic Science Laboratory. 4. The appellant and Maqbool Ahmad accused when examined under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. The appellant denied having led to the recovery of carbine, empty and live cartridges. Maqbool Ahmed made the following statement:-- "Muhammad Iqbal complainant's sister was married to me. She has died. I had contracted second marriage during her lifetime and on account of which the relations between the families of Iqbal and my self became strained and we are not even on speaking terms. My son Mahmud Ahmad has started the business of selling of fans in Sarafan Bazar, Kasur. Irshad was also engaged in this profession. Due to entering in the same profession, Irshad had suffered adversely on account of which he nourished grudge against him and then cases were registered between Irshad and Mahmud and the business rivalry has taken turn into enmity. Irshad had associated with bad characters and was using them against my son. During the day of occurrence may son Mahmud Ahmad was out of country. Myself had gone to Lulliani a day before the occurrence to contact my witnesses, who were to be produced in a Civil Court on 26-11-1987 and I was not in Kasur. Likewise my son Muhammad Ahmad had left Kasur on 22-11-1987 for Multan to see his step-mother who was sick and came back on 27-11-1987. The occurrence was un-witnessed and the assailant was unknown. On account of previous enmity Iqbal complainant with the help of his associates, friends and local police fabricated a false story and involved me and my son Muhammad Ahmad in this case. I am retired Khateeb from Auqaf Department and am suffering from gout and have been getting treatment from Sheikh Zayed Hospital, Lahore. I was also operated for (sic) and due to old age I am not in a position to perform the ordinary pursuits of life. Iqbal complainant has made a false statement and so is the position of the other witnesses who are connected to him and it is for this reason that none from Sarafan Bazar, Kasur has came forward to make his statement in this Court." 5. Learned trial Court did not believe the recovery of the weapon of offence and the crime empty but relying upon the ocular testimony furnished by Muhammad Iqbal complainant P.W.6 and Muhammad Munwar Khan P.W.7, the evidence of motive and the medical evidence found both the accused i.e. The appellant herein and Maqbool Ahmed guilty of the charge of murder and convicted them under section 302/34, P.P.C., awarded death penalty to the appellant and sentenced Maqbool Ahmad to life imprisonment. Both of them were also sentenced to pay fine of Rs.20,000 each and further directed to pay Rs.20,000 each as compensation to the legal heirs of the deceased. 6. The convicts preferred an appeal in the High Court and a reference was received from the Trial Court for confirmation of death sentence awarded to the present appellant. The complainant also filed a revision petition for enhancement of sentence of Maqbool Ahmed from life imprisonment to death with further prayer that the amount of fine when recovered be also directed to be paid to the legal heirs of the deceased. Learned Judges of the High Court disposed of all the matters together vide judgment dated 31-3-1991 upholding the conviction of the appellant herein and confirming his death sentence but acquitting Maqbool Ahmed, the other convict for the reason that he was 61 years old and ailing and was also empty-handed at the the of the occurrence and as such it was considered unsafe to maintain his conviction. The amount of fine and compensation imposed/awarded by the Trial Court was reduced but allowing the request of the complainant, it
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was directed that "whole of the fine, on recovery, shall also be paid as compensation to the heirs of the deceased". 7. Judgment of the High Court was assailed in this Court both by the` appellant and the complainant in to separate petitions for leave to appeal. Leave was granted by this Court in both the petitions to consider "whether the evidence on the record is sufficient to support the conviction and sentence of Ahmed petitioner" and "whether the evidence on the record justified the acquittal of Maqbool Ahmed respondent or the reduction of the fine or compensation imposed on Muhammad Ahmed respondent". 8. Raja Muhammad Anwar, learned counsel for Muhammad Ahmed appellant in Cr. Appeal No.205/92 contended that the place of occurrence was a busy bazar of the city. There were shops all around with residential accommodation m their upper storeys but no body from the vicinity was named or produced as an eye-witness of the occurrence. This fact, according to the learned counsel, casts serious doubts on the veracity of the prosecution version. It was further submitted by the learned counsel that .The to witnesses namely Muhammad Iqbal P.W.6 and Munawar Khan P W.7 who appeared at the trial to give ocular account of the occurrence were chance witnesses whose presence at the spot was not satisfactorily explained. No reliance could, therefore, be placed on their testimony. Learned counsel pointed out that Munawar Khan P. W.7 was resident of village Kotli Pathanan, 3/4 miles away from the place of occurrence and his explanation for his presence at the place of occurrence was that he had come to collect the fans which he had purchased from the deceased and which having become defective were brought back to his shop for repair 5/6 days before the occurrence. This explanation, according to the learned counsel, was not quite convincing as the witness did not produce any receipt evidencing the purchase of those fans from the deceased nor was any guarantee card for their maintenance produced by him. Learned counsel referred to para. 18 of the High Court judgment and pointed out that even the learned Judges doubted the presence of P. W.7 at the spot for the reasons aforementioned. Learned counsel next contended that Muhammad Iqbal complainant on account of his close relationship with the deceased (being the deceased's real brother) and the long drawn criminal litigation between the parties was an interested witness. Reference was made by the learned counsel to para. 11 of the Trial Court's judgment to show that the Trial Court had found on the basis of evidence of the complainant Muhammad Iqbal and other witnesses coupled with the copies of the F.I. Rs., that the parties were at daggers drawn and 6/7 months before this occurrence, a case under section 307, P.P.C. Was registered against Irshad deceased for causing a fire-arm injury to Mohamed Ahmad, a brother of the appellant. Learned counsel contended that with the background of enmity between the parties, it was not safe to rely upon the evidence of Muhammad Iqbal complainant without independent corroboration. Learned counsel further argued that the acquittal of the appellant's co-accused Maqbool Ahmed by the High Court adversely reflected on the credibility of the eye-witnesses and conviction of the appellant on their evidence could not be sustained unless it was supported by some other evidence which would help create the degree of probability of the appellant's guilty as could be made safe basis for his conviction. According to the learned counsel, such additional/corroborative evidence was not forthcoming in the present case. His submission was that the recovery of the crime weapon and the empty which could possibly furnish corroboration to the ocular evidence has been disbelieved by the Courts below and the medical evidence and the motive relied upon by them as corroborative evidence could not be so used. Medical evidence, in the submission of the learned counsel, may confirm the ocular account with regard to the injury received, the kind of weapon used for causing the injury and the duration between the injury and the death but it would not connect the accused with the commission of the crime. It was further contended that the medical evidence in the instant case far from supporting the ocular testimony belies it in so far as it relates
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to the respective positions of the assailant/appellant and the deceased and the distance from which the shot was fired at the deceased. As regards the motive alleged by the prosecution, submission of the learned counsel was that the enmity is a double-edged weapon and it could well have been a cause for false implication of the appellant. In support of his submissions, learned counsel relied upon (1) Ata Muhammad and another v. The State (1995 SCM R 599), (2) Muhammad Yousuf v. The State (1994 SCM R 1148), (3) Bashir Ahmed and others v. Ali Muhammad and others (1994 SCM R 1157), (4) Shah Bakhsh and another v. The State (1990 SCM R 158) and (5) Aminullah v. The State (PLD 1982 SC 429). Learned counsel also referred to Mst. Shamim Akhtar v. Fiaz Akhtar (PLD 1992 SC 211) to contend that the site plan is not a substantive piece of evidence and the High Court erred in relying upon it for determining the position of the appellant when he fired at the deceased. Learned counsel also made a grievance that the Courts below failed to draw adverse inference from non-examination of Arshad P. W who according to presecution was an employee of the deceased and was present at the shop at the the of occurrence. 9. Mian Aftab Furukh, learned counsel for the complainant supported the impugned judgment of the High Court to the extent that it upheld the conviction of Muhammad Ahmed appellant and confirmed his death sentence. It was submitted by the learned counsel that the finding of guilt of the appellant is based on the ocular testimony of Muhammad Iqbal complainant and Munawar Khan P.W.7 which is supported by medical evidence. According to the learned counsel, presence of both the eye-witnesses at the place of occurrence has been accepted by the Trial Court as also by the learned Judges of the High Court and their evidence has been believed by both the learned Courts. Learned counsel pointed out that Muhammad Iqbal complainant was on his way to his shop when the occurrence took place which he witnessed and Munawar Khan P.W. Also gave plausible explanation for his presence in the shop of the deceased at the the of occurrence. In the submission of the learned counsel, the fact that the name of this witness was mentioned in the F.I.R. Lodged soon after the occurrence supports the factum of his presence at the spot. It was further contended by the learned counsel that the appellant is the son of real sister of Iqbal P.W. Who would not falsely implicate him in a murder case entailing death penalty simply because of the business rivalry and criminal litigation between the deceased and the appellant. Similarly, Munawar Khan P.W., to, according to the learned counsel, had no reason to perjure himself so as to falsely involve the appellant. This witness, it was submitted, was neither related to the deceased or the complainant nor had he any enmity with the appellant. Learned counsel argued that it was a broad daylight occurrence which was witnessed, amongst others, by Muhammad Iqbal P.W., a real brother of the deceased who would not allow the real murderer to escape by implicating an innocent person. As regards the argument of the learned counsel for the appellant that no one from the vicinity was mentioned as an eye-witness of the occurrence and the adverse inference which ought to have been drawn but was not drawn from non-examination of Arshad P.W., learned counsel for the complainant submitted that it was a matter of common knowledge that the people from the locality are generally hesitant to come forward as witnesses m criminal cases and that the prosecution was not required to examine every witness of a crime. With respect to the medical evidence, learned counsel for the complainant relied upon Modi's Medical Jurisprudence, XIII Edition, pages 227 and 231 to contend that it is not easy to give a definite opinion about the distance from which a fire-arm is discharged and that in some cases it is difficult to determine the direction from which the weapon is fired as the bullet is so often deflected by the tissues that its course is very irregular. Learned counsel, however, referred to the site plan Exh.P-C. And the statement of Muhammad Nasrullah Draftsman P.W.4 who had prepared it and contended that keeping in view the position of the assailant and the deceased indicated in the site plan. Medical evidence was quite consistent with the ocular testimony. To support his submissions, learned counsel relied upon: (1) Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD
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1976 SC 452), (2) Javed Ahmed alias Jaida v. The State and another (1978 SCM R 114), (3) Zar Bahadar v. The State (1978 SCM R 136) and (4) Falak Sher v. The State (1990 SCM R 276). Reliance was also placed by the learned counsel on Muhammad Ashraf and another v The State (PLD 1977 SC 538) to contend that the concurrent findings of to learned Courts recorded after proper appraisal of the evidence are not ordinarily interfered with by this Court. 10. We have considered the submissions of the learned counsel for both the sides keeping in view the settled principles governing the appreciation of evidence and dispensation of justice in criminal matters and have found no good ground to interfere with the impugned judgment of the High Court. Learned Judges of the High Court like the Trial Court disbelieved the recovery of crime weapon, the empty and the live cartridges but relying upon the ocular testimony, the motive and the medical evidence maintained the conviction of the appellant and confirmed his death sentence holding that the case against him was proved beyond reasonable doubt. 11. Ocular account of the occurrence as noted above has been given by the complainant Muhammad Iqbal P.W.6 and Munawar Khan P.W.7 whose presence at the scene of occurrence has been accepted by the Trial Court as also by the learned Judges of the High Court and their testimony believed by both the learned Courts after proper appraisal thereof and for good reasons. Repelling the contention that none of the eye-witnesses seems to hive witnessed the occurrence, the learned Judges observed "Muhammad Iqbal P.W.6 had a shop in the same bazar, and it was the the of 'opening the shops. His statement, therefore, that he had witnessed the occurrence, while on way to his shop, cannot be considered as a made-up story, for arty reason". The Trial Court had also observed in para.12 of its judgment "The complainant is a bookseller and his shop is in the Sarafan Bazar, Kasur.- - - - -- - - - - - -- - In the month of November, at 8-45 a.m. The complainant would be going to his shop and it is not unbelievable that he would take some other route. He was going to open his shop and when he reached the shop of his brother, he found the accused attacking upon the deceased Irshad. He cannot be stated to be a chance witness". As regards Munawar Khan P.W., the learned Judges of the High Court noted the objection as has been raised before us viz. That he was resident of a village -- miles. Away from the place of occurrence and had not produced any documents like the receipt of purchase of fans or the guarantee card to support his statement that he had gone to the shop of the deceased to ask for repairs/change of fans but they proceeded to accept his presence at the spot with the observation "The S.H.O. After having recorded the statement of the complainant in the hospital and after despatching the dead body for post-mortem examination, had reached the spot at 10-30 a.m. This witness was present there before his arrival. He could have been named in the F.I.R. As an eye-witness by the complainant hoping that he will not refuse, even to make a false statement, but his presence could not have been secured at such early a the from his village by any means. He could only have been found present by the Investigating Officer at the spot on his arrival at 10-30 a.m. If he had already been there, and witnessed the occurrence. He not only had made statement before the Investigating Officer about the manner in which the occurrence had taken place but had also witnessed the collection of blood-stained earth from there and attested the recovery memo. (Exh. PD) also. His presence, therefore, at the spot stands established by a document which was exhibited at the trial and placed reliance upon". The learned Trial Court also after taking note of the objection raised by the defence about the presence of this witness in the shop of the deceased observed that "The F.I.R. Was lodged within 45 minutes of the occurrence. Munawar Khan P.W. Was not known to Iqbal complainant. Munawar Khan had given his name and other particulars to the complainant when he had gone to the hospital alongwith the injured. When the 1.0. Came to the place of occurrence, Munawar was found present at the place of occurrence. It is not expected that Iqbal would send a message to Munawar Khan and he would reach soon after the occurrence to the place of occurrence and that his name would be mentioned alongwith father's name and other
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particulars in the promptly lodged report. ------------- - it is not expected that the name of Muhammad Munawar Khan P.W. Would be subsequently incorporated. He is, therefore, a natural witness and cannot be termed as a chance witness, or interested witness". The learned Trial Judge further found that Munawar Khan P.W. Had no enmity with the accused nor had he any close association with the deceased. "He had just business relations with the deceased and he wanted to make exchange of the fans which became defective during summer season and because of guarantee of royal, he wanted to take other fans from the deceased-" Learned Judges of the High Court also held that Munawar Khan P.W. Had no special relationship with the complainant except that he was a customer of the deceased and that "He was not at all inimical to the appellants. In fact, no such suggestion was even put to him". The argument that the complainant Muhammad Iqbal was an interested and inimical witness and, therefore, his testimony could not be relied upon was also rejected by the learned Judges of the High Court holding that "the complainant would not have substituted the appellants against the real culprit, in spite of the differences, that were existing amongst the families. In that regard, it is worth noticing that notwithstanding the differences between the parties, they were closely related to each other as well, Muhammad Ahmed appellant was the son of sister of the complainant. He could not have substituted him for real culprit, and that to for an occurrence which had taken place in a broad daylight in the bazar". 12. As seen above, the learned Courts below have given very sound and cogent reasons for accepting the presence of both the eye-witnesses at the the and place of occurrence and for believing their testimony. Their findings, in our 1 view, are based on correct and proper analysis- appraisal of the evidence on record. On our own independent assessment of the evidence, we quite agree with the reasoning of the Courts below that none of the to eye-witnesses who appeared at the trial to give ocular account of the occurrence could be said to be a chance witness. Muhammad Iqbal P.W., the brother of the deceased, was on his way to his shop when he saw the appellant firing at the deceased. It is not denied that his shop was in the same bazar in which the shop of the deceased was situated. It was also the the for opening the shops. In the circumstances, his statement that he was on his way to his shop when he witnessed the occurrence could not be rejected dubbing him as a chance witness. Reference may usefully be made to Javaid Ahmed alias Jaida v. The State (1978 SCM R 114) wherein it was observed by this Court "when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation of their presence at or near the spot at the relevant the, or there is otherwise any inherent weakness or contradiction in their testimony". Presence of Munawar Khan P.W. At the place-of occurrence is also sufficiently established on record in view of the facts found by the Courts below namely that his name as an eye-witness of the occurrence was mentioned in the F.I.R. Lodged within 45 minutes of the occurrence; he was found present at the place of occurrence when the Investigating Officer reached there at 10-30 a.m. After recording the statement of the complainant in the hospital and despatching the dead body for post-mortem examination and that he (Munawar Khan) had made the statement before the Investigating Officer and also witnessed the collection of blood-stained earth from them and attested the recovery memo. It has, therefore, been rightly observed by the Courts below that the presence of this witness who was a resident of a village 3/4 miles away could not have been managed/procured so soon after the occurrence. As held by the learned Judges of the High Court, "He could only have been found present by the Investigating Officer at the spot on his arrival at 10- 30 a.m. If he had already been there and witnessed the occurrence". In the face of this reasoned and categories finding of the learned Judges accepting the presence of P.W.7 at the spot, it could not be legitimately argued that learned Judges had doubted the presence of this witness at the
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spot. The observations in para. 18 of the High Court's judgment that his presence at the spot should not be taken for granted and that in fact "the same appears to be rather doubtful" which the learned counsel for the appellant relied upon were made in the context of the argument that P.W.7 was a resident of a village 3/4 miles away from the place of occurrence and he had not produced any documents i.e. The receipt of purchase of fans or the guarantee card. The observations in question are, however, immediately followed by a clear-cut finding that "there is material on record which shows that his claim of being present at the spot…
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