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Petitioner: GHULAM SIKAN DAR AND ANOTHERC VS Respondent: MAMARAZ KHAN AND OTHERS
Court Name: Supreme Court of Pakistan Judge(s): Mian Burhanuddin Khan, Muhammad Afzal Zullah, M. S. H. Qureshi Title: GHULAM SIKAN DAR AND ANOTHERC vs MAMARAZ KHAN AND OTHERS Case No.:Criminal Appeals Nos. 274 and 275 of 1980 Cr, A. No, 791 of 1976 and Cr.
JUDGMENT
Reported As: PLD 1985 Supreme Court 11 Result: Appeal partly allowed Judgment JUDGMENT ' MUHAMMAD AFZAL ZULLAH, ACTG. C. J.-These appeals through special leave of this Court are directed against judgment, dated 7th of October, 1978 of the Lahore High Court; whereby a criminal appeal in a case of double murder was partly allowed resulting in the acquittal of Khan Beg and Maqbool Elahi respondents (in Cr. A. No, 274/190 and affirmation of conviction and sentence of life imprisonment and 7 years' R. I. As also fine for offences under sections 302 and 326, P. P. C. Against Mumaraz Khan (appellant in Cr. J. A. No, 275/1980) and further also dismissing Criminal Revision filed by Ghulam Sikandar (appellant in Cr. A. No, 274/1980) for enhancement of sentence/reversal of acquittal. ' The two deceased in this case are Ghulam Yasin and Fateh Khan. Ghulam Sikandar (appellant in Cr. A. No, 274/1980) is neither a witness nor the complainant though he was originally mentioned as a witness but was given up. None from the side of Ghulam Yasin (deceased) moved this Court either against acquittal or for enhancement of sentence. Mst. Alam Khat',on the widow of Ghulam Yasin who herself was injured in the occurrence lodged the F. I. K. On the date of occurrence i,e, 27- 9-1974 at 9-30 p.m. At the Police Station which is at 10 miles, regarding the occurrence which had taken place at diggarwella. She appeared as a witness at the trial which was faced by four accused persons namely, Mumaraz convict (appellant in Cr. A. No, 275/19801 his two brothers Khan Beg and Maqbool Elahi acquitted (Cr. A. No, 274/1980) and his father Noor Elahi, who was also acquitted by the trial. Court. But leave to appeal against this acquittal was not granted against this accused on account of concession made from the complainant side at the time of the hearing of the leave to appeal petition. Mst. Alam Khatoon was examined at the trial as an injured eyewitness.
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Her deposition furnishes complete picture of the prosecution case regarding motive as also the attack. It is mutatis mutandis reproduced below :- "Deceased Ghulam Yasin was my husband. P. W. Mst. Resham Khatun is my daughter. Deceased Fateh Khan was our collateral and also collateral of accused Nur Ilahi. Accused Nur Ilaiii is the (step) brother of deceased Ghulam Yasin and father of the remaining 3 accused. ' Mst. Resham Khatun P. W. Is the wife of accused Mamaraz Khan. He thrashed and turned her out about 2 months before the occurrence. A day prior to the incident, he went to take her back. At that time, deceased Ghulam Yasin, P. W. Din Muhammad, my said daughter and I were in the house. The husband of my daughter asked that she should be sent with him. But my husband refused. Accused Mamaraz Khan said that he would forcibly take away his wife and went away. "About 11 years back, at diggarwella, my husband and I were going towards our fields to bring fodder. When we reached the land of Ahmad Khan, all the accused emerged from depression land and attacked us. Accused Nur Bain was armed with a stick and Mamaraz Khan, Maqbul Ilahi and Khan Beg with spears. Accused Maqbul Ilahi and Khan Beg caught my husband and accused Mamaraz Khan speared him in the left side of chest. Then accused Khan Beg injured his left arm with . Spear, and accused Maqbul ilahi also speared his left arm. Cthulant Yasin fell down. I raised an alarm and also 'tried to save my husband. Accused Nur llahi delivered stick blows on my right arm, right ear, left hand and back. On hearing my alarm, deceased Fateh Khan reached the spot, and asked -the accused to desist from attack. At this, accused Khan Beg gave a spear blow in his belly. The spear blow given by accused Maqbul Ilahi injured his left flank. Accused Mamaraz Khan gave a spear blow on his left shoulder. Accused Mamaraz Khan then caused a spear injury on the right side of his back. Fateh Khan fell down. P. Ws. Ghulam Sikandar and Ahmad Khan also arrived and saw the occurrence. The accused went towards their Lihok. Ghulam Yasin and Fateh Khan died after a short time. I went to P. S. Talagang and lodged the F. I. R. Exh. P. C., which was read out to me and I bethumbed it in token of correctness. I was medically examined." ' The prosecution examined besides Alam Khatun another eye-witness namely Ahmad Khan P. W. a nephew of Fateh Khan deceased whose testimony was subjected to some doubt by the High Court and was not relied upon. When discarding the testimony of this witness it was observed by the High Court as follows :- "Ahmad Khan (P. W. 11) at the trial stated that he was grazing cattle in his land, but before the police he had stated that he was grazing cattle near his Dhok at the time of incident. He did not show his land to the police or the Patwari. According to Ejaz Hussain Patwari (P. W. 7), point No, 4, from where Ahmad Khan (P. W. 11) witnessed the occurrence, was the property of Hakam Khan etc. This is 146 Karams from his Dhok Ham. The land of Ahmad Khan (P. W. 11) is not shown in the site plan. In cross-examination, Ahmad Khan (P. W. 11) stated that he was at a distance of 300 paces from his Dhok which was about 700 paces from the Dhos. Of Fateh Khan deceased and that the spot was not visible from these two Dhoks (Dhok Fateh Khan and Dhok Ham). If he was at the relevant time 300 paces from his Dhok which was about 700 paces from the Dhok of Fateh Khan deceased, he should be 350 Karams from the Dhok of Fateh Khan deceased and 121 Karams from the place of occurrence. His admission that the spot was not visible from the two Dhoks negatives even the story put up by the prosecution that Fateh Khan deceased ran to the spot from his Dhok on hearing the alarm. He also admitted that he neither raised alaram, nor attempted to rescue the victims (though Fateh Khan deceased was his uncle) nor informed anybody about the occurrence. All these contradictions and peculiarities in his statement make his presence at the spot very much doubtful. Being related to Fateh Khan deceased, it appears be has been set up as a witness. I, therefore, reject his presence at the spot as an eyewitness." ' The statement of Mst. Alam Khatun so far as it contained the broad features of the case was accepted by the High Court only against Manaus who bad also produced a spear at the time of his
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arrest on 28-9-1974. While all other accused namely, Nur Ilahi, Maqbool Ela hi and Khan Beg had denied their participation in the occurrence. Mamaraz had put forward a counter-version of self- defence in the case with a different background. It reads as follows : "People suspected illicit relations between P. W. Mst. Alam Khatun and Fateh Khan deceased. She and her family shifted to Fateh Khan's Dhok a year before the occurrence and the scandal got more publicity. I told my wife to persuade the mother to return to her Dhok. My mother-in-law took offence for it and also prevailed upon my wife, who went over to her mother two months prior to the incident. People also started talking that there was a plan to get divorce of my wife in order to marry her to P. W. Ghulam Sikandar son of deceased Fateh Khan. I sent a message to my in-law to return my wife to my house or shift her to village Dhok Ham from Ghulam Sikandar's Dhok. But they began to demand divorce from me. I refused, at which Ghulam Yasin and Fateh Khan threatened me with dire consequences. I got scared and began to keep a spear with me for protection. In the morning of the day of occurrence, I was told by accused Khan Beg's wife Mst. Ghulam Fatima that the deceased persons were after my life. She is the daughter of Fateh Khan's sister. At the time of occurrence, I was coming back from the field of my maternal uncle Malik Khan. Ghulam Yasin and Fateh Khan attacked me with hate ets. I started fleeing. They chased me. They were not wearing turbans and shoes. On reaching the field of Ahmad Khan, I realised that I could not escape. 1 stopped and had a fight with them. In confusion, terror and excitement, 1 caused them injuries with the spear. P. W. Mst. Alam Khatun arrived and intervened and I injured her too with the handle and blade of the spear in rage and provocation. I used to keep the blade in my .)ab'. While running, 1 fixed it in the handle. I had no intention to kill anybody. P. Ws. Ahmad Kban and Ghulam Sikandar and my brothers and father were not present at that time. On demand by the police, I produced that spear through my relatives." ' The learned trial Court in a careful scrutiny of the deposition of Mst. Alam Khatun viz-a-viz medical evidence found that,there was no way of reconciling her version that Nur Haiti accused caused all the injuries found on her person with a stick. On the contrary she was contradicted by the presence of an incised wound on her right ear 1" x x cartilage cut. When acquitting Nur Ilahi who was 71 years of age learned Ridge found that "he had been entangled on account of being head of the family"- he is the father of the three co-accused. The argument of the defence that Mamaraz only as asserted in his statement under section 342, Cr. P. C. Had participated in the occurrence and that Maqbool Ilahi and Khan Beg his younger brothers were also falsely implicated, like their father, was repelled by making reference to the number of injuries found on the two deceased persons, as likely to have been caused by more than one person. Mamaraz appellants' plea was taken into account and all the three brothers were accordingly convicted under sections 302/34 and 326/34, P. P. C. But with a finding that there was no pre-meditation or pre-planning. Accordingly lesser sentence of life imprisonment was awarded under section 302, P. P. C. For the first offence and 7 years' R. I. For the second offence with fine of Rs, 3,000 and 1,000 respectively. The entire fine was ordered to be paid as compensation to the heirs of the deceased As has already been noticed in the statement of Mst. Alam Khatun, Ghulam Yasin (deceased) was a step brother Of Nur llahi acquitted accused while Fateh Khan it is admitted is a distant collateral of both of them. None belonging to the family of Ghulam Yasin whicn admittedly included Mst. Alam Khatun and Mst. Resham Khatun P. W's his widow and daughter respectively, challenged the decision of the trial Court. But Ghulam Sikanadar a given up P. W, son of Fateh Khan filed a revision petition against acquittal of Noor llahi as also for enhancement of sentence awarded to the other accused. When questioned in this behalf during the hearing of this appeal the learned counsel for Ghulam Sikandar was unable to give any explanation for the heirs of Ghulam Yasin having not come forward ; neither in the High Court nor in this Court. His questioning his own client also did not furnish any tangible reason except for a surmise that they might have avoided incurring
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expenditure in this behalf. But that would not explain why Ghulam Sikandar when incurring the same expense could not keep with him Mst. Alam Khatun, at least formally as a petitioner in the revision petition tiled in the High Court or in the petition for leave to appeal filed in this Court. A strong reasonable possibility cannot be excluded that the heirs of Ghulam Yasin might not be interested in pursuing the case in this Court against the acquitted accused. And that may also be due to the reason that there is closer relationship between Ghulam Yasin and Nur Ilahi as compared to their remote relationship with Fateh Khan. The afore-noted aspect might not be relevant at the trial stage but when considering the question of enhancement of sentence or setting aside an acquittal, this circumstance might not be entirely irrelevant. ' The High Court after examining the number and nature of injuries found on the two deceased came to the conclusion that they could as well ne caused by one person namely Mamaraz, who had admitted his participation in the occurrence. Ile opinion of the trial Court was accepted in the High Court that the occurrence was not pre-planned. Khan Beg who is the husband of niece of Fateh Khan deceased and Maqbool Elabi accused respondents were not tound to have "anything to do with the alleged motive". Absence of any recoveries from these two accused also was noticed and it was finally held that they would not have joined with their brother for making murderous assault on the two deceased and a lady. Regarding Mamaraz it was held that he had a grievance' against Ghulam Yasin who had refused to return his daughter to the appellant and also against Fateh Khan deceased "he suspected him of carrying on with his mother-ill-law and inducing her to leave Dhok Ham, where she had transferred her residence with her daughter to continue her own liaison with him". The occurrence was considered to have taken place suddenly when Mamaraz "came across Ghulam Yasin deceased and his wife by chance and something triggered of the incident, whose particulars are shrouded in mystery, his grievance against Ghulam Yasin deceased for not sending back his wife, provoked him beyond control to make a murderous assault. The position was not better when Fateh Khan deceased turned upto rescue Ghulam Yasin deceased and Mst. Alam Khatoon, (P. W. 10) for his fury was further whetted by the suspicion he nursed against him". And for these reasons the sentence awarded to Mamaraz appellant (while acquitting Maqbool llahi and Khan Beg in appeal) was not enhanced. Leave to appeal was granted to re-examine the case with a view to see whether : firstly a reasonable possibility could not be excluded that one person could have caused the injuries and not more than one person ; and, secondly, in case all the three brothers were involved in the occurrence and had also come armed with spears, this act on the part of all of them could be treated as without pre-meditation. If not whether it was a fit case for lesser sentence. ' We with the help of the learned counsel have gone through the evidence and have also heard lengthy arguments addressed by both the learned counsel for the parties as also the learned counsel appearing for the State. ' Several cases were cited by the learnad counsel for the parties with regard to the principle to be followed by this Court regarding appreciation of evidence in an appeal against acquittal. Learned counsel for the complainant appellant cited Ali Sher v. The State and 3 others (1), State through Advocate-General N.-W F.P. Peshawar v. Amir Nazar and others (2), Mst. Habibun Nisa alias Bivi v. Zafar teal and others (31, Nazir Ahmad v. Muhammad Din and others (4) and Capt. Mahmood Jan v. Madad Khan and another (5). ' Learned counsel for the acquitted accused cited Ahmad v. Crown (6) Fateh Muhammad v. Bagoo (7) Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of Ea.St Pakistan (e) Feroz Khan v. Capt. Ghulam Nabi (9) Usman Khan v. The State (10) Noora and another v. The State (11) Abdul Rashid v. Umid Ali and another (12) Taj Muhammad v. Muhammad Yousaf and another (13) Farid v. Aslam (14) and Fazalur Rehman v. Abdul Ghani (15).
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' It is not necessary to state and comment upon the facts and circumstances of each of the afore- noted cases nor it is necessary to make an attempt to deduce any one single rule from these judgments which would help resolve the controversy involved in this case, without proper analy his of the material on record. ' However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases law on the question of setting aside an acquittal by this Court. They are as follows :- (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the le-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions : One initial, that, till found guilty, the accused is innocent ; and Two that again after the trial a Court below confirmed the assumption of innocence. (1) PLD 1980 SC 317 (2) PLD 1981 SC 286 (3) 19s1 SCMR 95 (4) 198i SCMR 415 (5) 1981 SCM R 474 (6) PLD 1951 FC 107 (7) PLD 1960 SC 286 (8) PLD 1964 SC 422 (9) PLD 1966 SC 424 (10) PLD 1969 SC 293 (11) PLD 1973 SC 469 (12) PLD 1975 SC 227 (13) PLD 1976 SC 234 (14) PLD 1977 SC 4 (15) PLD 1977 C 529 (2) The acquitted will not carry the second presumption and will also' thus loose the first one if on points having conclusive effect on the end result the Court below : (a) disregarded material evidence ; (b) misread such evidence ; (c) received such evidence illegally. (3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion ; and that too with a view only to avoid gray miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. ' In this case the appraisement of the evidence by the learned Courts below can be divided into three parts for purpose of treatment under the foregoing principles, by this Court They are :- ' One. Acquittal of Nur Elahi accused by the trial Court. ' Two. Acquittal of Khan Beg and Maqbul Elahi accused respondents by the High Court ; ' Three. Conviction of Mamaraz Khan accused by the trial Court with lesser sentence and its affirmation by the High Court.
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' Nur Elahi was acquitted by the learned trial Judge on proper analysis of the evidence particularly the star witness, Mst. Alam Khatun who claimed to have been injured by him. Not even an attempt has been made by the learned counsel for Ghulam Sikandar to show that Nur Elahi's acquittal was on account of non-consideration of misreading of any piece of evidence. This accused at the relevant time was very old and being the father of the three accused was falsely involved in order to widen the noss around enemies-it will, in due course, be explained that the relationship between the two sides was enmical. The learned Judge who saw and heard the witness and discribed the age of Nur Ilahi as 71 years was constrained to hold "that he had been entangled on account of being head on the family". The finding of acquittal in favour of Nur Ilahi was further affirmed in the elaborate judgment of the High Court when the ocular evidence was brought under searching criticism. The State had chosen not to file an appeal against acquittal of Nur Ilahi and the private revision filed by Ghulam Sikandar, the present appellant was dismissed by the High Court. It needs to be emphasised here again that neither the State nor the family of Ghulam Yasin (deceased) challenged the judgments of the learned Courts below. Learned counsel for Ghulam Sikandar remained unable at-all to explain the silence of the heirs of Ghulam Yasin. This is not all. At the stage of grant of leave to appeal he had also given up the challenge against Nur Ilahi. And consequently the petition for leave to appeal against him, was dismissed. During the hearing of this appeal although the learned counsel did not seek re-appraisal of evidence regarding acquittal of Nur Ilahi it was surmised that in order to convict the two accused acquitted by the High Court it might he possible to comment against the acquittal of Nur Ilahi. This is an extraordinary proposition for an appeal against acquittal. It is surprisingly so artificial in the circumstances of the case that no further comment would be necessary. Above all this Court is not to hold trial of Nur Ilahi, nor can it come in the shoes of the prosecutor so as to embark upon such an extraordinary course and start with the presumption that the two respondents are guilty and further that same material is to be collected to canvict them. Leave to appeal having been refused by this Court against the acquittal of Nur llahi due effect of this acquittal will have to be kept in view. What cannot be done directly against Nur Ilahi cannot be done indirectly so as to deny the application of salutary principles laid down from time to time regarding administration of criminal justice. Such cases, however, would be a distinguishable from those where the acquittal is not brought under challenge at all, by any party before this Court. ' The second set of accused is that of Khan Beg and Maqbul Ilahi. The High Court has given cogent reasons for their acquittal. With regard to them also there is no argument either that any material piece of evidence was ignored or misread or that any well-known. Principle was ignored or wrongly applied. The learned trial Judge had faced a serious difficulty when recording conviction against remaining accused after acquitting Nur Ilahi on clear finding of "entanglement" due to his being "the head of family" ; particularly, in view of the tainted nature of ocular evidence. It was same against all the accused. He, however, had forced to overcome the difficulty by resort to the well known rule of corroboration. Against Mamaraz it was easily discovered in the recovery of the crime weapon and also in his admission of participation in the occurrence. Against Khan Beg and Maqbool Ilahi there was no corroboration. They had denied their participation in the occurrence. This denial, it may be added, was not an afterthought. The deposition of the Investigating Officer shows that through their conduct these two accused (as distinguished from Mamaraz) had from the very moment of arrest protected against their involvement and had produced evidence. Such a conduct which is exculpatory in nature co Id be taken into consideration. Be that as it may, the learned trial Judge when searching from corroboration against these two accused observed that the number of injuries found on the two deceased indicated that the assailants could be three and without saying so in so many words treated this as the necessary corroboration. It may be
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observed that the nature of injuries would in any case be of no help to the prosecution because all the three accused other than Nur Ilahi were allegedly armed with sharp-edged weapons. ' The total number of injuries on Ghulam Yasin (deceased) was four. Two of them are inlet and exit wounds of a stab on the arm. The third is a skin deep out on the shoulder and the fourth (in reality the third) is the only substantial wound. It is on the chest. The injuries on Fateh Khan (deceased) are also four in number. Excepting one which was a small wound with sharp-edged weapon on the back the other three injuries were of substantial nature-described as dangerous. The Doctor was of the opinion that both the deceased had received injuries with sharp-edged pointed weapon described as of "same nature". He expressed the further important opinion that "it is just possible it may be one and the same weapon". It is not possible to ignore such like opinion in an appeal against acquittal when one reasonable possibility is that only one accused might be involved. ' Nur Ilahi having been acquitted as held above due effect of this acquittal on false "entanglement" can be given in favour of the accused. He was alleged Co have caused only soti blow to Mst. Alam Khatun. She however, suffered at least one incised wound on her right ear ; which could not have been caused by a soti. She also suffered four blunt weapon injuries one is…
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