Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE, GHULAM ABBAS VS Respondent: RAB NAWAZ AND ANOTHER RAB NAWAZ AND JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Gul, Muhammad Yaqub Ali, Anwar-ul-Haq Title:THE STATE, GHULAM ABBAS vs RAB NAWAZ AND ANOTHER RAB NAWAZ AND
JUDGMENT
Reported As: PLD 1974 Supreme Court 87 Result: appeal, set aside Judgment JUDGMENT MUHAMMAD GUL, J.-Rabnawaz and Ghulam Muhammad son of Sher Muhammad (two respondents herein) were tried along with one Ghulam Muhammad son of A.I Muhammad, by the learned Sessions Judge, Mianwali, under section 302/34, P. P. C. For the murder of Sher Muhammad son of Haji Ghulam Hussain, and under section 307/34, P. P. C. For the attempted murders of Ghulam Abbas (P. W. 4) and Muhammad Ramzan son of Ahmad Yar (P. W. 5). The learned Sessions Judge acquitted Ghulam Muhammad son of A.I Muhammad of all the charges but convicted the two respondents herein. Rabnawaz respondent was convicted. (1)under section 302, P. P. C. And sentenced to death for the murder of Sher Muhammad son of Haji Ghulam Hussain deceased ; (ii) under section 307/34, P. P. C. To four years' R. I. For the attempted murder of Ghulam Abbas P. W. ; and (iii) under section 324, P. P. C. To one year's R. 1. For causing simple injury to Ramzan son of Ahmad Yar (P. W. 5). The sentences of rigorous imprisonment were made concurrent in the event of death sentence not being confirmed. Ghulam Muhammad respon--dent was convicted under section 307/34, P. P. C. And sentenced to four years' R. I. For the attempted murder of Ghulam Abbas, but acquitted of the remaining charges. 2. On appeal by the respondents and a reference under section 374 of the Code of Criminal Procedure, 1898, a Division Bench of the former High Court of West Pakistan at Lahore, vide
---
## Page 2
judgment dated 2-11-1966 acquitted the two respondents of all the charges. By the same judgment, the learned Judges of the Division Bench also dismissed an appeal filed by the State against the acquittal of Ghulam Muhammad son of A.I Ahmad, and a revision also filed by the State for the enhancement of sentences for offences under section 307/34, P. P. C. Imposed on the respondents. 3. Leave to appeal was granted to the State in this case for the re examination of evidence in the case, because its appreciation by the learned Judges of the Division Bench in the High Court did not proceed on the correct principles governing the administration of criminal justice. Ghulam Abbas (P. W. 4) the first informant in the case has also lodged petition for Special Leave to Appeal No. 6 of 1967 against the impugned judgment of the Division Bench to call in question the acquittal of the respondents for the offences for which they were charged by the trial Court. This judgment will dispose of both the appeal by the State and the leave petition. 4. The parties are Sheikhs and are sma ll businessmen. The case for the prosecution briefly is that Ghulam Abbas (P. W. 4) who runs a maniari shop in Bazar Kalan in Mianwali town contracted illicit liaison with Mst. Ghulam Sakina a sister of Rabnawaz respondent and wife of Ghulam Muhammad the other respondent. This embittered the relations of the parties including Ghulam Muhammad, the acquitted accused who is maternal uncle of Rabnawaz. A short while before 5-OO.p.m. On 19th August 1964, Rabnawaz respondent and Ghulam Abbas passed each other in the bazar and the former asked the latter to desist from his- villainous activities, the implied reference being to his alleged illicit relations with Mst. Ghulam Sakina. This led to an exchange of hot words between the two, but beyond that nothing untoward happened and Ghulam Abbas came to his shop. 5. Shortly thereafter at 5-00 p.m., the two respondents and Ghulam Muhammad, the acquitted accused came to the shop of Ghulam Abbas. Ghulam Muhammad, respondent carried a licensed single-barrel shot-gun and the other two had a knife each. Ghulam Muhammad respondent aimed his gun at Ghulam Abbas, but before he could fire, Sher Muhammad (deceased) a distant relative of Ghulam Abbas hugged Ghulam Muhammad respondent from behind and gave jerk to his arm with which he was taking aim at Ghulam Abbas. As a result of that evasive action the shot went astray, and Ghulam Abbas escaped being hit. Rabnawaz respondent at this stage attacked Sher Muhammad from behind and gave ,him a knife blow on his right buttock and he fell on the ground. Muhammad Ramzan son of Ahmad Yar (P. W. 5) also a relation of Ghulam Abbas intervened to save Sher Muhammad from further injury when Ghulam Muhammad (the acquitted accused) gave him a knife blow on the left leg. In the ensuing melee, Ghulam Abbas grappled with Ghulam Muhammad respondent and relieved him of his gun. He then hurried towards the police post about two furlongs away where he made statement `Exh. P. A. At 5-40 p.m. To A. S. I. Manzoor- ul-Haq (P. W. 16) and also produced the gun Exh. P. 1, along with the empty cartridge Exh. P. 2 still in the barrel. The statement Exh. P. A. Besides the recital or motive and the incident, refers to the production of the gun by the first information and the injuries received by the assailants. 6. In the meantime, Sher Muhammad was also brought in injured 'condition to the police post by Abdul Rahim (P. W. 6) and Ghulam A.I (P. W. 7). The injured also gave statement which was recorded in the zimni by the A. S. I. In this statement he named Rabnawaz as having stabbed him with a knife when he (the injured) was trying to save Ghulam Abbas from being shot at by Ghulam Muhammad, respondent. However, before Sher Muhammad could complete his statement he became unconscious. Incidentally, the statement was admitted in evidence as dying statement and is marked Exh. P. V. Sher Muhammad was then sent to the Civil Hospital for medical examination and treatment where he expired at 7 p.m. In the meantime Muhammad Ramzan son of Ahmad Yar (P. W. 5) was also brought to the police post in an injured condition. The three
---
## Page 3
accused who were also injured, came to the police post a little later. They were also sent to the hospital for medical examination. 7. It would be advantageous to set out at this stage in extenso the injuries suffered by the deceased, Muhammad Ramzan (P. W. 5) and the two respondents, not only because they have a strong bearing upon the prosecution case, so far as it concerns the actual incident, but also because, the learned Judges in the High Court were mainly iufluenced by the injuries on the person of the two respondents and Ghulam Muhammad, the acquitted accused, which, according to the learned Judges remained unexplained rendering the whole prosecution case doubtful. 8. Sher Muhammad deceased suffered an incised wound vertical in position 1" x -- " x bone deep. Bone was cut perforating pelvic cavity. The wound was on the right gluteal region about 12" to the right from upper=most part of natal cleft and 2 -- " below the iliac crest. Right iliac vessels. Were punctured and about five pounds of blood removed from pelvic cavity. Death was due to extensive haemorrhage and shock due to the above injury which in the doctor's opinion was sufficient to cause the death in the ordinary course of nature. Muhammad Ramzan (P. W. 5) suffered the following injuries (1) An incised wound 2' x -- --- x 1" on the front of left side about 3" above the left knee joint. The wound was oblique in direction, (2) An abrasion 1" x -- " on the medial aspect of right knee joint just below the medial part of right petalla. (3) An abrasion 4" x 1" on the medial aspect of the left upper arm about 3" above the left elbow joint. (4) A traverse abrasion 2" x 1" on the medial part of front of left elbow-- joint. (5) An irregular almost triangular abrasion 3" x 2" apex being upward on the front of left forearm. (6) A crescentic abrasion 4" x f on the front of left fore-arm just below-- injury No. 5. The first injury was by a sharp-edged weapon, rest were by blunt weapon. All were simple. Rabnawaz respondent No. 1 suffered the following injuries (1) An incised wound of the shape of inverted L. The vertical limb was 2" x 1/3" and the transverse limb 1" x J" x. 1/6". The wound was on the right cheek. The direction of the wound was upward and laterally. (2) An abrasion 1" x J" on the medial aspect of terminal phalanx of left middle finger. Both injuries were simple : the first was by a sharp weapon. Ghulam Muhammad respondent No. 2 had the following injuries (I) A lacerated wound -- " x -- " x skin deep on the left side of back about 6" from the middle line and 3" below the left shoulder joint. (2) A lacerated wound -- --- x -- --- x skin deep on the left shoulder blade about 4" from the middle line and about 2 -- " above the interior angle of scapula. (3) A lacerated wound -----x -- " x skin deep on the left side of back about 2" from the middle line and at the level of sixth dorsal vertebra. (4) Complaint of pain in left lumber region. (5) A lacerated wound -- " x -- " x skin deep on the medial aspect of terminal phalanx of right big toe. All were simple caused by blunt weapon. 9. The two respondents when questioned during the commitment proceedings to explain the injuries on their person replied that they would make statement on the point before the trial Court. To the further question why this case was registered against them, they made only a bald statement that it was on account of enmity. No details of enmity were given. They, however, categorically denied the illicit relations between Ghulam Abbas and Mst. Ghulam Sakina. BI-fore the learned Sessions Judge, Rabnawaz stated inter alia-
---
## Page 4
"I was going to the shop of Qadeer . . . . My shop was closed on that day. I was passing in front of the shop of Ghulam Abbas P. W. When he and Muhammad Ramzan P. W. Son of Ahmad Yar attacked me: The reason is that we had business rivalry and we were getting challaned each other. This bickering was going on since Id 1963. Muhammad Ramzan P. W., son of Ahmad Yar inflicted the knife blow on my face. I pushed him. He fell down. I got hold of his knife which he was still holding and in struggle, the knife hit him. People collected including Sher Muhammad deceased. Ghulam Abbas P. W. Was going to hit me with a knife, when it accidentally hit Sher Muhammad deceased, who was coming to separate us and was between us. I fell down." Ghulam Muhammad, respondent offered the following explanation as to his injuries "I went to see Rabnawaz accused in the hospital after the occurrence. I was at the gate of the hospital when the Sub-Inspector met me. He gave me a push and a kick blow as a result of which I fell down and I sustained injuries. The Sub-Inspector asked the Foot Constable to have me medically examined." 10. The learned Sessions Judge did not accept the prosecution case with regard to motive for the assault. On this point, he rightly accepted the defence version that the real cause of the trouble was business. Rivalry between the parties. This was also admitted by Ghulam Abbas (P. W. 4). However that may be, in criminal cases motive more often than not, remains shrouded in uncertainty. To the complainant, it is generally a matter of speculation, for it is a fact within the special knowledge of the accused. Even motiveless crime is not unknown. Therefore, the mere fact that the prosecution case as to motive has been disbelieved by the Courts below is no reason for dis--believing direct evidence on the main incident, which has to be judged on its own merits, and if such evidence is creditworthy, it can form a valid basis for conviction, obscurity of motive notwithstanding. 11. Evidence produced in support of the main incident resulting in the fatal injury to Sher Muhammad deceased and injuries to Muhammad Ramzan (P. W. 5) and attempt at the life of Ghulam Abbas was accepted by the learned Sessions Judge though not without some reservations. Nevertheless, the presence of Muhammad Ramzan (P. W. 5), Abdur Rahim (P. W. 6), Ghulam A.I (P. W. 7) and Muhammad Ramzan son of Ghulam Hassan (P. W. 8) was not doubted. With the exception of the first named, the other three witnesses were also treated as independent though according to the learned Sessions Judge they had "soft corner" for the prosecution. There-- fore, for the conviction of the two respondents herein, besides relying on the, oral statements of these witnesses and the informant, the learned Sessions Judge based his judgment on the production of gun Exh. P. 1 with empty Exh. P. 2 still lodged in the barrel, by Ghulam Abbas at the time of making statement Exh. P. A. The recovery of blood-stained clothes from Abdur Rahim and Ghulam A.I P. Ws. Which they were wearing at the time they brought the deceased at the police post and recovery of blood-stained clothes from the respondents herein. The learned Sessions Judge also relied on the dying statement Exh. P. V. In which the deceased had named the two respondents herein as the assailants. 12. It is important to observe that the prime reason for giving benefit of doubt to Ghulam Muhammad son of A.I Muhammad by the learned Sessions Judge was the omission of any reference to him in the dying statement. This in all probability, was due to the fact that the deceased, before he could .Complete his statement, sank into unconsciousness. Therefore, the learned Sessions Judge in acquitting Ghulam Muhammad son of A.I Muhammad, acted out of abundant caution and not because he was falsely implicated. By the eye-witnesses. On the other hand, the trial Court had no hesitation to reject out of hand the defence version of the incident. The explanation given by Ghulam Muhammad respondent about the injuries on his person was .Dubbed "foolish" and defence version as "not palatable."
---
## Page 5
13. Because the learned Sessions Judge did not place complete reliance upon the eye-witnesses, the learned Judges of the High Court also looked for independent corroboration of the eye- witnesses. But instead of referring to the entire medical evidence, which as will be seen presently, furnished a strong corroboration of the prosecution version of the incident, the learned Judges opined that failure of the prosecution to "account for" the injuries to the two respondents herein as also the acquitted accused, had rendered the ,entire prosecution case doubtful. The learned Judges recognised that Abdur Rahim, Ghulam A.I and Muhammad Ramzan son of Ghulam Hassan were unrelated witnesses, but because, they had "concealed" the injuries to the two respondents and the acquitted accused, the learned Judges thought they were not "impartial witnesses" and that therefore, no reliance could be placed upon them. The learned Judges also regarded them as unworthy of credit because they were "moeens" and belonged to lower class of society" and therefore, ruled out of consideration altogether the evidence of three eye--witnesses. The learned Judges also considered improbable what was described as "dramatic apprehension of Ghulam Muhammad (respondent) with the gun" which they opined "was not used in the alleged incident". 14. Having thus reviewed the evidence the learned Judges reached the following conclusions "All the circumstances of the case indicate a fight in which Sher Muhammad deceased and Ghulam Abbas P. W. On the one side and Rabnawaz and Ghulam Muhammad son of Sher Muhammad appellant on the other side and probably Ghulam Muhammad son of A.I Muhammad also participated. All the three suffered injuries in the course of this fight . . . .", and went on to observe that though the plea of the respondents-which incidentally was earlier described by the learned Judges as "ridiculous"-- was not established yet it had created a doubt- "as to how Sher Muhammad was killed. It was therefore, unnecessary for the defence to plead self- defence or to show that they had not exceeded the right of private defence." Finally, the learned Judges also excluded from their consideration the dying declaration Exh. P. V., because there was no reference about it in the inquest report. As a result they gave benefit of doubt to the two respondents herein. 15. It must be conceded at once, that when the learned trial Judge, who bad the advantage of hearing the witnesses viva voce was cautious enough not to accept their oral word without corroboration, the learned Judges were also justified to look for independent corroboration of eye--witnesses. This, however, was available in ample measure. But curiously enough, the learned Judges ignored it completely. For instance, the nature and the seat of the solitary fatal injury to Sher Muhammad deceased furnished the strongest possible corroboration of the prosecution version namely, that he was unarmed and non-partisan, who by timely intervention described in the earlier part of this judgment, saved Ghulam Abbas from being hit by gunshot by Ghulam Muhammad respondent. The knife was plunged with full force from behind in the right buttock. The thrust went deep to cut the bone underneath, besides cutting iliac vessels. This clearly indicates that the deceased was attacked from behind unawares, to preclude any possibility of offering resistance or taking evasive action to save or mitigate injury to himself. Then recovery of blood-stained clothes Exhs. P. 3 to P. 6 from Abdur Rahim and Ghulam A.I P. Ws. Who escorted the deceased to the police post in injured condition which incidentally confirmed their presence at the spot, was simply ignored. And merely because they are moeens is no ground for disbelieving them. Rather, if I may say so, it would be wholly wrong in principle as also uncharitable to make economic or social status as the touchstone for credibility. Then it is equally wrong to treat them as chance witnesses. The incident took place in the main bazar, in the late afternoon in the month of August. This is the usual time during summer when people generally go to the bazar. The eye-witnesses are all residents in the same locality though not in the immediate neigh--bourhood. Of them, only Ramzan (P. W. 5) is related to Ghulam Abbas. But then he is injured which establishes his presence at the spot beyond any doubt. Another confirmatory
---
## Page 6
circumstance is that all eye-witnesses are named in the statement Exh. P. A. Which was lodged at the police post within minutes of the incident. This eliminates all chances of fabrication or consultation and should equally resolve all doubts about the production of gun Exh. P. 1 with the empty lodged in its barrel as stated in Exh. P. A. There is no basis for the suggestion that Ghulam Muhammad res--pondent produced the gun at bidding of the police, except his own bald state-- ment. Similarly, exclusion by the learned Judges of the dying statement Exh. P. V. Rested on fallacious grounds. There is no rule requiring a dying statement to be mentioned in the inquest report. Rather, such a reference would be an oddity for an inquest report in a record of the observations of the Investigating Officer at the time of his spot inspection. 16. It is clear from the judgment of the High Court that the main reason which influenced the learned Judges to give benefit of doubt to the two respondents was, that the injuries on their person and that of the acquitted accused were not satisfactorily explained by the prosecution. From this the learned Judges felt justified to conclude, there was a fight between the parties, though it is by no means clear whether it implied a sudden flare up or a free fight, when each side came prepared for a trial of strength. In the latter case each party should have been adequately armed. There is not a scintilla of evidence to support the hypothesis that Sher Muhammad deceased was involved as partisan of Ghulam Abbas. Sher Muhammad was passing by empty- handed and was moved entirely by .Civic sense to intervene which he did dexterously to render the gunshot fired by Ghulam Muhammad respondent ineffective. He succeeded in his noble object, though he himself' had to make the supreme sacrifice. Criminal liability for the fatal injury caused to Sher Muhammad. Therefore, will have to be determined on that basis. This will exclude the plea of self-defence as against him to- which the learned Judges in the High Court vaguely referred in their judgment. 17. It remains to be seen whether because of the injuries to the two respondents and the acquitted accused, a plea of self-defence can be sustained or whether these injuries remaining unexplained have the effect of rendering the prosecution case doubtful. Mr. Rashid Murtaza, learned counsel for the respondents strenuously canvassed that proposition basing himself on the two judgments of the Federal Court in Safdar A.I v. Crown (PLD 1953 FC 93) and in Muhammad Aslam v. Crown (PLD 1953 FC 115 ). But the argument in my opinion proceeds on a superficial reading of the precedent cases in which the facts were materially different. It also overlooks the general principle. That everything said in a judgment more particularly in a criminal judgment must be understood as haling been said with reference to the facts of j that particular case. In the two precedent cases the principle laid down by the House of Lords in Woolmington's case (1935 A C 462) was explained and followed. The case of Safdar A.I was that of an unwitnessed murder. The only direct evidence of the incident was that the deceased had sustained four injuries with a knife one of which was fatal, as against the single grievous injury also with a knife sustained by the accused who specifically pleaded that on being attacked and wounded by a knife by the deceased, who was in a state of fury, he himself struck with a knife in order to avert the grave and imminent danger to his life. No witness in defence was examined in proof of the above plea. However, there were indications arising from the prosecution evidence which lent support to the defence plea. It was in these circumstances that it was held that in a case of that kind, the principle in Woolmington's case, namely, that in the dispensation of criminal justice, decision of the case must not be taken in relation to the accused's special pleading "but must rest on the examination of entire evidence ---, applied. Explaining this principle Abdul Rashid, C. J. Observed: ` In a criminal case, it is the duty of the Court to review the entire evidence that ha3 been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these
---
## Page 7
circumstances, the accused is enti-led to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." 18. The same principle was reiterated in the case of Muhammad Aslam. In that case the appellant had received several injuries of serious nature including a fracture of the right ulna. He pleaded that he acted in the exercise of right of private defence,. The High Court rejected the plea of self- defence on the ground that the accused person must establish such plea "affirmatively beyond any doubt". The Federal Court held that it is not incumbent on the accused to establish his plea in mitigation or justification of the offence "with the same rigidity and exactitude as the prosecution", and that even where an accused fails to establish his special pleadings, the verdict of the Court must be given. "upon and as a result of the whole case including all evidence adduced by the defence and if upon such review a reasonable doubt is created, the accused is entitled to acquittal." 19. It will thus be seen that in the two precedent cases the emphasis is upon the review of the "entire evidence" and upon the "examination of the whole case" in contra-distinction with its one particular facet in isolation. The broad principle deducible from these cases is that it is upon the examination of the entire evidence in the case that the Court has to form the opinion whether even if the plea of self-defence has failed, it has reacted upon the prosecution case so as to entitle the accused to the benefit of doubt. It is wholly fallacious to read the two precedent cases, as laying down the broad principle of general application to the criminal cases, that it is always the duty of the prosecution to explain each injury on the accused person, regardless of its nature. It is equally wrong to suggest E that the prosecution's failure to explain any such injury would per se affect its case with the general doubt so as to entitle the accused to acquittal. To accept the argument of the respondents' learned counsel in its entirety would be to pervert the principle laid down in the two precedent cases upon which the argument proceeded. As explained already, the question whether the prosecution's failure in this respect, reacts on the whole case so as to…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.