Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD AHMAD (MAHMOOD AHMED) and another VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Anwar Zaheer Jamali, Khalil-ur-Rehman Ramday Title: MUHAMMAD AHMAD (MAHMOOD AHMED) and another vs THE STATE Case No.: Criminal Appeals Nos.860 and 861 of 2006 Date of Judgment:2009-10-01 Reported As: 2010 SCMR 660 Result: Order accordingly
JUDGMENT
JUDGMENT ' KHALIL-UR-REHMAN RAMDAY, J.--- In the occurrence which is the subject-matter of these appeals, filed through leave of this Court, eight persons were murdered while two others had also been assaulted who had received fire-arm injuries but had survived. Ten persons, accused of the commission of the said crime, were found guilty of the same and were punished with death under section 302(b) of the P.P.C. Read with section 149 of the said Code, on eight counts, besides imposition of some other punishments under section 148, P.P.C. And section 324/149 of the Pakistan Penal Code. 2. It is admitted on all sides that the episode commenced at about 5-00 a.m. On 9-1-1997 when Fida Hussain, Inspector and Ahmed Ali, S.-I. P.W.22 raided village Mir Muhammad and arrested eight persons of the complainant party out of whom six are the deceased persons of the present case while two others, namely, Ghulam Nabi complainant P.W.9 and Master Asghar P.W.8 are the injured witnesses of the said occurrence. Five persons of the present convict party and four others, apparently not connected with these two parties, out of whom Khizar and Asim also got killed in the present occurrence, were also arrested. The said arrests of these persons and of some others had been made under section 107 read with section 151 of the Cr.P.C., allegedly on account of apprehension of breach of peace on their part. It may be mentioned here that one Abdul Rehman, who was a brother of Ayyaz and Pervaiz convict-appellants before us, had been murdered on 23- 9-1996 i,e, about four months prior to the present occurrence with respect to which murder the said Ayyaz appellant had lodged an F.I.R. Accusing Akbar deceased and Abdullah deceased of the present case and some others of the complainant-party, of the commission of the said murder which had led to the tension between the parties and the said apprehensions.
---
## Page 2
3. All these persons arrested in pursuance of the said preventive proceedings, were taken to Police Station Raja Jang. It was the prosecution case that a brother of the above-mentioned Ayyaz and Pervaiz appellants, namely, Khalid Bhatti and one Hafeez Ahmed came to the Police Station at about 7-30 a.m. On the said day and requested the S.H.O. To release the said Ayyaz and Pervaiz appellants. According to the two injured eye-witnesses, Fida Hussain, Inspector/S.H.O. Obliged and had released the said two appellants and had even returned the firearm weapons to them which had been recovered from them at the time of their arrest in the above-mentioned raid. The claim of Ahmed Ali, S.-I. (P.W.22), however, was that the said Hafeez.And Khalid had come and had met the S.H.O. With the said request but the S.H.O. Had refused to oblige. It may be added here that the said Khalid Bhatti and Hafeez had also been cited as accused persons of the present case but had got murdered during the course of the trial. 4. It is also admitted on all sides that at about 12-30 p.m. The same day, all these arrested persons were taken to the Courts at Kasur for their production before the competent Magistrate. All of them except Ayyaz, Pervaiz, Rauf and Mahmood appellants and one Bashir (who absconded and is a Proclaimed Offender) were put in a Dalla (a pick up used for transportation goods) with three constables including Mehr Ali H.C. (C.W.1) sitting on the front seat along with the driver which vehicle had then, left for Kasur. According to the two injured eyewitnesses Rauf appellant, Mahmood appellant and Bashir P.O. Were put in a private taxi car with Ahmed Ali, S.-I. (P.W.22) which followed the said Dalla. However, according to the said Ahmed Ali, S.-I. (P.W.22), Ayyaz and Pervaiz appellants had also been made to sit in the same taxi car and it was five of the said arrested persons along with him and the driver, making a total of seven persons, who were sitting in the said taxi. 5. It is further admitted on all sides that when the said Dalla reached near the Health Centre of Rao Khanwala, it was ambushed by the accused persons; that its driver tried to speed away but the assailants fired at the tyres of the said vehicle which got burst as a result of which the same stopped whereafter the assailants mounted an assault on the members of the complainant-party present in the Dalla which resulted in the death of six of them and in injuries to Ghulam Nabi complainant (P.W.9) and Master Asghar P.W.8. It may be added that besides the above-mentioned six deceased persons, two others, namely, Khizar and Asim who were also being taken to the Court in the same Dalla , had also got killed in the said occurrence making a total of eight dead and two injured. 6. It was the case of the two injured witnesses that the culprits who had ambushed the said Dalla included Ayyaz and Pervaiz appellants who had, though been arrested in the morning raid but had subsequently been released by Fida Hussain Inspector/S.H.O. But according to Ahmed Ali, S.-I. (P.W.22), the said two were present in the taxi car with him. Again, according to the two injured witnesses, this taxi car which was following the Dalla had reached the place of occurrence while the attack was still in progress and the occupants of the same i,e, Rauf appellant, Mahmood appellant and Bashir P.O. Had then also joined in the assault but according to Ahmad Ali, S.-I. (P.W.22) and Mehr Ali Shah, H.C. (C.W.1), this taxi car reached the spot after the occurrence was over. 7. When confronted with the prosecution case under section 342, Cr.P.C., it was pleaded by the accused persons that five of them, namely, Ayyaz appellant, Pervaiz appellant, Rauf appellant, Mahmood appellant and Bashir P.O. Were in the taxi car which had never reached the place of occurrence during the course of the assault and they had thus not participated in the same and further that the Dalla in question had been ambushed by some unknown persons and that none of the accused persons had anything to do with the said occurrence and further that they had been falsely implicated on account of the previous enmity between the parties.
---
## Page 3
8. Another feature of the case which needs to be mentioned at the outset is that the complainant- party had vehemently claimed, from the very beginning i,e, with the lodging of the F.I.R., that the crime in question had been committed by the convict-party in collusion with Fida Hussain, Inspector/S.H.O. And Ahmed Ali, S.-I. Who were then also arraigned as the accused persons of the present case, However, on an application submitted by them for their acquittal under section 265- K of the. Cr.P.C., the complainant-party had joined in the said request for their acquittal as a result whereof the said two were acquitted of the said charges and it was thereafter that Ahmed Ali, S.-I. Had entered the witness box as a prosecution witness. 9. Mr. Muhammad Akram Sheikh, the learned Senior Advocate Supreme Court representing the appellants except Rauf and Mahmood appellants, took us through the record and then canvassed acquittal for the said eight appellants on the ground that the three eye-witnesses including the two injured witnesses were inimical towards the appellants; that no corroboration was available to support the said interested testimony; that the said appellants had been maliciously implicated in the occurrence in question on account of the previous enmity between the parties especially the above-mentioned murder of Abdul Rehman who was a brother of Ayyaz and Pervaiz appellants; that the eyesight of P.W.9 was' very weak who thus, could not have identified any of the assailants; that no reliance could be placed on the testimony of Ahmed Ali, S.-I. (P.W.22) as he was reciprocating the favour shown to them by the complainant side in securing acquittal for him; that the testimony of Mehr Ali Shah, H.C. (C.W.1) was also of no real assistance to the prosecution because he had admitted that he did not know the assailants and that in the circumstances, the said appellants deserved acquittal. He had pleaded, in the alternative that since the genesis of the occurrence in question was not known and since it was humanly impossible to establish as to which of the culprits had fired at whom, therefore, in such-like situations imposition of sentences of death would be against the principles of safe administration of justice. The learned counsel had also cited the following judgments in support of his case which judgments mentioned some principles which are too well known. The said cited cases are:--- "(i) PLD 1960 SC 387 at 390, (ii) 1998 SCM R 25 at 29, (iii) 1996 SCM R 1855 at 1857, (iv) 1995 SCM R 175 at 177, (v) 2001 SCM R 424 at 440 & 441 at 491, (vi) PLD 2003 SC 350 at 354, (vii) 1978 PCr.LJ 490 at 496, (viii) 1984 SCM R 1069 at 1074." 10. Sardar Muhammad Ishaque, the learned Senior Advocate Supreme Court appearing for Rauf and Mahmood appellants in Criminal Appeal No,860 of 2006 submitted that the said two appellants were real brothers inter se; that they were not the residents of village Mir Muhammad where the two parties resided and were in fact residents of Chak No,109 of Tehsil Cheecha Watni of District Sahiwal which would be around 100 K.Ms. Away from the place of occurrence; that the said two appellants were the real brothers of the wife of Ayyaz appellant; that it was a day prior to the present occurrence i,e, on 8-1-1997 that they had come to village Mir Muhammad to meet their sister; that the next morning a raid was conducted in the village in which they were also arrested as being present in the house of Ayyaz appellant; that at the time of occurrence, even according to the eye-witnesses, they are travelling in the taxi car which was following the Dalla; that the taxi car, according to Ahmed Ali, S.-I. (P.W.22) and Mehr Ali Shah, H.C. (C.W.1), had never reached the place of occurrence while the said occurrence was still in progress; that the list of the accused persons appearing at the very beginning of the application (Exh.P.H.) which had been submitted by Ghulam Nabi complainant and which then formed the basis of the F.I.R. Of the present case, the names of Rauf and Mahmood appellants had not been cited as the culprits; that the said two appellants were burdened only with an allegation of general indiscriminate firing; that no specific injury was ascribed to any of them and that in the circumstances the participation of the said two appellants in the occurrence in question was more than a doubtful affair who then deserved to be acquitted of the charges levelled against them.
---
## Page 4
11. We propose to take up, first, the case of Rauf and Mahmood appellants. 12. They were admittedly net the residents of village Mir Muhammad and would thus have no direct involvement in the enmity between the two parties. It is also a fact, not denied, that they were the brothers of the wife of Ayyaz appellant. It is their case, as noticed above, that they had come to village Mir Muhammad to meet their sister in the evening preceding the morning of the raid and had been arrested only because they happened to be present in the house of Ayyaz appellant. This explanation of the two appellants of their presence in village Mir Muhammad on the morning on 9- 1-1997 and of their arrest at the time of the raid in question, could not be said to be unreasonable. 13. It is admitted even by the private eye-witnesses including the two injured witnesses, that these two appellants were in custody and were travelling in the taxi car which was following the Dalla . It was the case of Ahmed Ali, S.-I. (P.W.22) and Mehr Ali Shah, H.C. (C.W.1) that this taxi car had not reached the place of occurrence during the course of the occurrence in question. One may have some reservations about the testimony offered by Ahmed Ali, S.-I. (P.W.22) for more than one reasons but the evidence offered by Mehr Ali Shah, H.C. (C.W.1) who was travelling in the Dalla , rings true to some extent. It was the driver of the said taxi car who was in control of the said vehicle and was admittedly not a person involved in the designs of the appellant-party and it was then Ahmed Ali, S.-I. (P.W.22) travelling in the said taxi who would be otherwise in command of the same being the senior police officer escorting the said arrested persons. It is not reasonably believable that after noticing an attack on the Dalla wherein a fairly large number of persons armed with fire- arm weapons had mounted an assault on the occupants thereof, the said driver and the said Ahmed Ali, S.-I. (P.W.22) would decide to move in, risking their own lives. Even if it be presumed that the taxi car was not far behind the said Dalla, it is understandable that the moment the one in control and command of the said taxi car would witness the brutal and callous attack on the said Dalla , they would not pick up the courage to come within the firing range of the fire-arm weapons being used in the said occurrence. Ahmed Ali, S.-I. (P.W.22) might well have been a party to the conspiracy for the elimination of the deceased persons, though the complainant-party had subsequently exonerated him of the said charge, yet he would not, in any case, like to risk his own life for the purpose. The site plan (Exh.P.E.) also offers us significant indication that the said taxi car had never reached the place of occurrence during the continuance of the attack. A perusal of the said site plan which had been prepared, inter alia, on the information and instructions provided by the three private eye-witnesses, would reveal that while the Dalla in question had been shown at the point of occurrence, the said taxi car finds no mention at all in the said site plan. Needless to say that if the said taxi car had reached the place of occurrence and if the occupants thereof had joined the assault then the same should have been and would have been indicated in the said site plan which had, however, not been done. 14. We have also gone through the application (Exh.P.H.) submitted by Ghulam Nabi complainant for the registration of the F.I.R. Of the present case and although the names of the said two appellants appear in the body of the said application indicating that the complainant was cognizant of the presence of the said appellants amongst the arrested persons yet the omission of their names from the list of the accused persons in the opening part of the said application, was quite conspicuous. 15. As has been mentioned above, Rauf and Mahmood appellants were alleged to have reached the place of occurrence when the assault had already commenced and as per the F.I.R. Itself, they had joined the others after the fire-arm injuries already stood inflicted on the bodies of the victims thereof and it was then that the said two appellants were accused of having joined in the indiscriminate firing. It is significant to notice that while the other appellants had been saddled with specific injuries on the persons of the victims, no such injury had been ascribed to the said two appellants. The question whether any indiscriminate firing had been made at the said stage of the
---
## Page 5
occurrence also deserves further examination. It is on record that besides the ten victims (eight dead and two surviving) Imran, Nazir, Hidayat Masih and Munir Masih were also sitting in the said Dalla along with the said victims while three constables Including Mehr All Shah, H.C. (C.W.1) and the driver were also available in the said vehicle. Needless to say that not even a scratch had got caused to the four arrested persons sitting along with the said ten victims and likewise not even a scratch had got caused on the persons of the said constables and the driver of the Dalla. No marks of any bullets had been found on the body of the said Dalla except a broken windscreen. The blackening discovered around some of the wounds of the victims; the availability of wads in the bodies of the said victims and the damage caused to the brain and faces of some of the deceased persons, is a clear pointer that most of the shots had been fired from a rather close range. This then appears to be a case of victim-specific and targeted killing and not a case of indiscriminate firing wherein the D projectiles had been sprayed. This casts a rather serious doubt about any indiscriminate firing having been made during the course of the occurrence which doubts are further strengthened by the recovery of only seventeen crime empties from the place of occurrence. Needless to add that some of the crime empties had been found and collected from within the Dalla which indicates that some of the assailants would have climbed into the part of the Dalla where the victims were sitting and it was from there that shots had been fired at the said victims. 16. What emerges from the examination of the available record is that at least Rauf and Mahmood appellants were admittedly travelling in the taxi car; that the reaching of the taxi car at the place of occurrence while the occurrence was still in progress was a more than doubtful claim and further that similarly doubtful was the prosecution allegation of any indiscriminate firing having been made by any of the assailants especially Rauf and Mahmood appellants. 17. Having so concluded, we find that the present was not a case where it could be said that the prosecution had succeeded in proving the guilt of Mahmood and Rauf appellants beyond reasonable doubts. Consequently, Criminal Appeal No,860 of 2006 filed by the said Muhammad Ahmad (Mahmood Ahmed) son of Sana Ullah and his brother Rauf Ahmed, is allowed as a result whereof the impugned conviction and punishments recorded against each one of them are set aside. They are acquitted of the charges levelled against them and shall be set at liberty forthwith, if not required to be detained in any other case. 18. This brings us to the case of the remaining eight appellants, namely, Ayyaz, Suleman, Rahim, Sarwar, Yahya, Nawaz alias Nikki, Younas and Pervaiz. The prosecution case against these appellants rests mainly on the testimony offered by the three private eye-witnesses, namely, the injured Master Asghar P.W.8, the injured Ghulam Nabi complainant P.W.9 and Saeed P.W.10 and the eye-witness account offered by Ahmed Ali, S.-I. (P.W.22) and the statement of Mehr Ali Shah, H.C. (C.W.1). 19. Since we have found and held above that the taxi car of which Ahmed Ali, S.-I. (P.W.22) was also one of the occupants, had never reached the place of occurrence during the course of the transaction in question and since we were also of the view that the said taxi car could not have come within the firing range, therefore, any reliance on the testimony of Ahmed Ali, 5.-I. (P.W.22), at least to the extent of identification of the culprits and the witnessing of the firing of shots by the assailants, would be un-safe. Mehr Ali Shah, H.C. (C.W.1) was another eye-witness of the occurrence as he was travelling in the 'Dana' escorting the fourteen persons being taken to the Court at Kasur. He had, however, declared at the very outset that he did not know the assailants and that their names had been told to him later on by Rasheed Inspector. No test identification parade had been organized which could have given the Courts some clue whether, according to him, the accused under trial were or were not the ones who had mounted the assault. Therefore, his testimony, to the extent of identification of the assailants, is also of no real assistance.
---
## Page 6
20. This leaves us with the statements of the two injured witnesses and of Saeed (P.W.10). The said (P.W.10) was closely related to some of the deceased persons. His explanation for his presence at the place of occurrence was that in the morning of the day of occurrence he had gone to Rao Khanwala in connection with some unspecified work; that at about 1-00 p.m. He happened to be standing on the Rao Khanwala road for returning home when he heard the report of fire-arm weapons originating from near the Health Centre of Rao Khanwala; that he rushed to the spot and saw the accused persons, identified and specified by him, firing at the deceased persons. He is thus admittedly a chance witness of the occurrence in question with no reasonable explanation for his availability at the place of occurrence at the relevant time. The evidence emanating from him could, therefore, be taken only with a pinch of salt. 21. The success or failure of the prosecution case then rests essentially on the acceptance or rejection of the testimony offered by the two remaining above-mentioned eye-witnesses, namely, Master Asghar (P.W.8) and Ghulam Nabi complainant (P.W.9). The obvious objection to the acceptance of their testimony is that they were admittedly interested witnesses who were inimical towards the convict-party being locked up in a blood feud with them. 22. The treatment deserved by such-like inimical testimony has been confronting the superior Courts rather frequently. And the following is how the superior. Courts responded to the said situation:-- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused, without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears fmm independent evidence or from circumstances not open to doubt to be the true number of culprits, Their evidence may. In the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force being home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in older that it may be sufficient as corroboration must depend on the particular circumstance of each case. However the circumstance itself must be proved beyond all reasonable doubt" (emphasis and underlining has been supplied) Niaz v. The State PLD 1960 SC (Pak.) 387. ' The law laid down by this Court in Niaz's case (supra) was further explained by this Court in the case of Nazir and other v. The State PLD 1962 SC 269 in the following terms:- "By what we said in Niaz v. The State ... We had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being
---
## Page 7
implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there would be the word of independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.