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Petitioner: IRSHAD AHMAD and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Fazal Karim, Sh. Riaz Ahmad Title: IRSHAD AHMAD and another vs THE STATE Case No.:Criminal Appeal No, 724 of 1985, Murder Reference No, 9 and Criminal
JUDGMENT
Reported As: 1990 P Cr. L J 374 Result: revision dismissed Judgment JUDGMENT ' FAZAL KARIM, J.--- This is an appeal from a judgment of the learned Additional Sessions Judge, dated 1-12-1985 convicting Irshad Ahmad and Bashir Ahmad, appellants, on two counts under section 302, read with section 34 of the P.P.C. And sentencing them to death; fine of Rs,10,000 and in default of payment of fine, one year's R.I. Each. The fine, if recovered, was directed to be paid equally to the, heirs of the deceased persons Daim and Allah Bakhsh alias Bakhsha. 2. Also tried with the appellants were six other accused persons Waryam, Bati, Dosa, Umra, Ghulam Qadir and Muhammad. They were acquitted. 3. This will also dispose of the reference under section 374 of the Cr.P.C. And Criminal Revision No, 622 of 1986 by Karam Ali, complainant, by which he seeks to have the acquittal of Bati etc. Reversed. 4. The incident resulting in the death of Daim and Allah Bakhsh alias B'akhsha deceased persons, occurred at Degarwaila on 14-3-1983 in the area of Mauza Rukan and was reported to the police by Karam Ali (P.W.7) vide his statement Exh.P.K. Made to Dildar Ali S.I. (P.W.17) at bus stand More Bhalwal at 6 p.m. On the same day. 5. The prosecution case was as follows. Some 25 or 30 years before this incident, Shera, a real maternal-uncle of Irshad Ahmad, appellant, was killed. For his murder, father of Allah Bakhsh alias Bakhsha, deceased, and 11 others were tried but acquitted. Eight or ten years before this incident, Aroora, an uncle's son of Karam Ali, complainant, was killed by Muhammad (son of Moonda), one of the acquitted accused persons in this case, and six others. A compromise was reached and as a result thereof, Mst. Ghulam Safia, sister of the appellant Irshad Ahmed, and the accused Bati, was
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married to Muhammad Ashiq son of Aroora. Muhammad Ashiq divorced Mst. Ghulam Safia one and a half months before this incident. The accused persons suspected that Allah Bakhsh alias Bakhsha, deceased, was responsible for this divorce. Then Daim, deceased, had instituted a civil suit in respect of land against Bashir Ahmed, appellant. The accused persons also suspected that he had instituted the suit at the instance of Allah Bakhsh alias Bakhsha. Both were prosecuting the suit. 6. Karam Ali, complainant, was a resident of Bhalwal; Allah Bakhsh alias Bakhsha, deceased, was his nephew. Karam Ali accompanied by Allah Bakhsh alias Bakhsha and Daim, also residents of Bhalwal, had gone to Mandi Bahauddin in the morning of 14-3-1983. They returned from Mandi Bahauddin at Degerwela disembarked from the bus at the bus stand Bhalwal, and started for their village Bhalwal. When they reached near the Dera of Gama son of Gehna, a resident of Mauza Rukan, Karam Ali P.W. Sat to make water; Allah Bakhsh alias Bakhsha and Daim continued walking. Suddenly, Karam Ali heard a Lalkara and saw the appellants and their co-accused emerging from a wheat crop. The appellants and their co-accused except Muhammad son of Moonda were armed with guns; Muhammad son of Moonda was empty handed. They shouted a Lalkara that Allah Bakhsh alias Bakhsha and Daim should be dealt with for the divorce of Mst. Ghulam Safia and for instituting the civil suit and that they should not escape alive. Irshad Ahmed, appellant, fired a shot at Allah Bakhsh alias Bakhsha hitting him in his head; Dosa fired hitting Allah Bakhsh alias Bakhsha in his right flank. Bashir Ahmad, appellant, fired at Daim hitting him in his right ear; he collapsed. Bati fired at Allah Bakhsh alias Bakhsha also hitting him in his right ear and Waryam fired hitting Daim on his left arm. Then all the accused persons fired shots at Allah Bakhsh alias Bakhsha and Daim hitting them on different parts of their bodies. Muhammad accused kept on exhorting his co-accused to kill them. Karam Ali did not go near for fear of his life but kept on raising alarm. His alarm and the gun reports attracted Amir son of Jiwan (not examined) and Wali son of Sajawal (P.W.11) who were proceeding from their Deras to the village. They also saw the occurrence taking place. Allah Bakhsh alias Bakhsha and Daim died at the spot. 7. Dr. Nazir Ahmad Anwar (P.W.4) performed the post-mortem examination of the dead bodies of Daim and Allah Bakhsh alias Bakhsha on 15-31983. He found the following injuries on the dead body of Daim:-- (1) A fire-arm wound of inlet 1 c.m. x 1 c.m. Over the front of right pinna, going under the base of skull. One pellet was recovered from subcutaneous tissues below the left pinna. (2 to 8) 7 wounds of inlet each 1/2 c.m. x 1/2 c.m. In an area of 7 c.m. x 4 c.m. Over the lateral side of left elbow, with fracture of lower part of left humerous. Two pellets were recovered from the area of fracture. Corresponding perforations in the shirt were present. (9 to 12) Four fire-arm wounds of exit each 1 c.m. x 1 c.m. On the medial side of left elbow. Perforations in shirt were present. (13 to 18) Six fire-arm wounds of inlet. Each 1/2 c.m. x 1/2 c.m. x going into the chest in an area of 5 c.m. x 4 c.m. Of the chest wall. On dissection lower part of the heart was found perforated, spleen and stomach were also found perforated. 2 to 4 pints of blood was present in the left side of chest. 3 L.G. Type of pellets were recovered from the tissues of epigaltruim and two from the left side of the chest. Left 6th and 7th ribs were also found fractured under the wound of inlet. Corresponding perforations in the shirt and Saluka were present. ' In his opinion, death was due to haemorrhage and shock resulting from all the injuries which were sufficient to cause death in the ordinary course of nature. All the injuries had been caused by fire- arms and were ante-mortem. Death was immediate and probably time between death and post- mortem examination was 12 to 18 hours. Exh.P.G. Is the post-mortem examination report and Exh.P.G./1 is the diagram of his injuries. 8. On the dead body of Allah Bakhsh alias Bakhsha, the doctor found the following injuries:-
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(1) A fire-arm wound of inlet 3 c.m. x 3 c.m. x going into the skull over the front of right pinna. On dissection, the skull was found fractured into many pieces, involving whole of it, the brain matter was mostly damaged. Five pellets and 3 pieces of wad were recovered from the brain matter. (2) A fire-arm wound of inlet 1 c.m. x 1 c.m. Over the right side of the head going into the skull. (3) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m. Below the left pinna. (4) A fire-arm wound of inlet 3 c.m. x 2-1/2 c.m. Going into the chest above and medial to right nipple. On dissection right lung was found perforated. (5) A fire-arm wound of exit 5 c.m. x 4 c.m. Over the back of right side of chest. ' Perforations corresponding to injuries Nos. 4 and 5 were present in the shirt, sweater and the vest. (6) A fire-arm wound of inlet 1/2 c.m. x 1/2 c.m. Over the right side of the chest, going into the chest. (7) A fire-arm wound of inlet 3 c.m. x 3 c.m. Over the right side of abdomen, going into the abdomen, on dissection multiple perforations were present in the liver, gut and right kidney. One large six pellet was recovered from the area corresponding to perforations in the liver. Corresponding perforations in the sweater, vest and shirt were present. (8) A fire-arm wound of inlet 2-1/2 x 2-1/2 c.m. Over the back of left hand. There was fracture of 4th and 5th matacarples underneath. (9) A fire-arm wound of exit 3 c.m. x 3 c.m. Over the palm of left hand. (10) A fire-arm wound of inlet 3 c.m. x 3 c.m. Over the dorsum of right forearm with fracture of ulna underneath. Pieces of wad (3 in number) were recovered from this area. (11) A fire-arm wound of exit 8 c.m. x 4 c.m. Over the ventral side of right forearm. ' Death was due to haemorrhage and shock resulting from all the injuries which were sufficient to cause death in the ordinary course of nature. The injuries had been caused by fire-arms and were ante-mortem. Death was immediate and probable time between death and post-mortem examination was 12 to 18 hours. Exh.P.H. Is the post-mortem examination report and Exh.P.H./1 is the diagram of his injuries. 9. Ch. Dildar Ali S.I. (P.W.17), who partly investigated the case, stated that he was present at bus- stand Rukan on 14-3-1983 when Karam Ali P.W. Appeared before him and made statement (Exh.P.K.). He sent the complaint to the police station and reached the spot. There he prepared the injury statement (Exh.P.O.) and inquest report (Exh.P.Q.) in respect of Daim and injury statement (Exh.P.R.) and inquest report (Exh.P.S.) in respect of Allah Bakhsh alias Bakhsha and sent the dead bodies for post-mortem examination. He collected blood-stained earth from the place where the deceased man Daim had fallen and made it into a sealed parcel vide memo. Exh.P.L. He also collected blood-stained earth from the place where Allah Bakhsh alias Bakhsha had fallen and made it into parcel vide memo. Exh.P.M. He found at the spot ten empties of .12 bore cartridges; they are P.17 to P.26. He made them into a parcel vide memo. Exh.P.N. 10. He arrested the accused persons Dosa, Bashir Ahmad, Bati and Muhammad on 6-4-1983; Ghulam Qadir on 29-4-1983 and Waryam on 3-5-1983. On 6-4-1983, Irshad Ahmad, appellant, led to the recovery of gun P.1 from his residential house; it was made into a parcel vide memo. Exh.PA. On 13-4-1983, Bashir Ahmad, appellant, led to the recovery of gun P.2 from his residential house; the gun was made into parcel vide memo Exh.P.B. On 29-4-1983, Ghulam Qadir appeared before him and produced gun P3 which was made into a parcel vide memo. Exh.P.C. On 3-5-1983, Waryam accused produced gun P.4 and it was made into a parcel vide memo. Exh.P.D. 11. Razzaq Ahmad A.S.I. (P.W.13) also partly investigated the case. He arrested Irshad Ahmad, appellant, on 31-3-1983 from Wah Factory where he was employed in the Army. While in his custody on 19-4-1983 Bati and Dost Muhammad accused persons led to the recovery of guns P.17 and P.18 which were made into parcels vide memos. Exh.P.O. And Exh.P.Q. Respectively. 12. At the trial, the prosecution called 17 witnesses including Dr. Nazir Ahmad Anwar (P.W.4), Ch. Dildar Ali S.I. (P.W.17) and Razzaq Ahmad A.S.I. (P.W.13). The prosecution case primarily rested upon
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the ocular testimony of Karam Ali (P.W.7) and Wali (P.W.11). In support of its case, the prosecution also relied upon the fact that 5 crime empties matched with the gun of Irshad Ahmad, appellant, and four crime empties matched with the gun of Bashir Ahmad, appellant. To prove this fact, the prosecution tendered in evidence the report Exh.P.V. Of the Forensic Science Laboratory. 13. The evidence of the remaining P.Ws. Can be dealt with at once and shortly as follows. 14. Anara (P.W.1), a first cousin of Daim, deceased, had witnessed the recovery of gun P.1 from Irshad Ahmad, appellant, vide memo. Exh.PA., and the recovery of gun P.2 from Bashi'. Ahmed, appellant, vide memo. Exh.P.B. He had also witnessed the recovery of gun P.3 from Ghulam Qadir accused. In cross-examination, he said that before the recovery of guns from Irshad Ahmad, and Bashir Ahmad, appellants, 'the police had visited our village and police had been raiding the houses of accused persons in order to effect their arrest', adding that the police had visited their village two or three days before the arrest of Irshad Ahmad, appellant. He was, however, not present when the police had so raided the houses. 15. Muhammad (P.W.2) had witnessed the recovery of gun P.4 from Waryam accused. 16. Lala (P.W.3) had identified the dead bodies of the deceased persons at the time of post-mortem examination. He had also witnessed the recovery of guns P.5 and P.6 from Dosa and Bati accused persons vide memo. E.Xh.P.E. And P.F. Respectively. 17. Naseerud Din Patwari (P.W.5) had prepared the site plan Exh.P.I and P.I./1 in the scale of 20 Karams to an inch on 14-3-1983. 18. Irshad Ahmed Head Constable (P.W.6) had escorted the dead bodies from the spot to the mortuary. 19. Gulzar Hussain Shah Head Constable (P.W.9) had received two sealed parcels containing blood-stained earth and one parcel containing empties from Ch. Dildar Ali S.I. On 16-3-1983. He had kept those parcels in the Malkhana. He gave those parcels to Muhammad Aslam F.C. For delivery at the offices of the Chemical Examiner and the Frorensic Science Laboratory. On 28-3-1983, the Constable brought back the parcel of empties with an objection. He kept that parcel in the Malkhana safely till 1-4-1983 and gave the said parcel to Muhammad Aslam F.C. For delivery at the office of the Forensic Science Laboratory. 20. On 6-4-1983, Ch. Dildar All S.I. Gave him a sealed parcel containing gun; he kept it safely till 12- 4-1983 when he gave it to Rashid Ahmad F.C. On 13-4-1983 Ch. Dildar Ali S.1. Gave him another parcel containing gun; he received two sealed parcels containing guns from Abdur Razzaq S.I. On 19-4-1983. He kept those parcels safely till 29-4-1983 when he gave them to Sardar Khan F.C. For being taken to the office of the Forensic Science Laboratory. 21. Bahadur Khan F.C. (P.W.10) took two sealed parcels containing guns on 17-5-1983 and delivered them in the office of the Forensic Science Laboratory. 22. Ghazanfar Ali (P.W.12) had merely prepared the challan. Alam Dar Hussain Shah F.C. (P.W.14) had given two parcels containing guns to Bahadur Khan Constable for delivery at the office of the Forensic Science Laboratory, Lahore. 23. Muhammad Aslam Constable (P.W.15) stated that the Moharrar Head Constable had, on 24-3- 1983, given him two parcels one containing earth and the other containing empty cartridges and he had delivered the parcel containing blood-stained earth safely. As to the parcel containing empties, it was returned with an objection and he had given it back to the Moharrar Head Constable. The latter again gave the parcel to him on 1-4-1983 and he had delivered it safely on 2- 4-1983. He added that the parcels had remained intact so long as they remained with him. 24. Sardar Khan Constable (P.W.16) testified to the fact that on 29-4-1983, he had taken three parcels containing guns and safely delivered them at the office of the Forensic Science Laboratory, Lahore.
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25. In their statements under section 342, Cr.P.C. The appellants and their co-accused denied having had anything to do with the murders of Daim and Allah Bakhsh alias Bakhsla. According to them, they had been falsely implicated on account of enmity. As to the murder of Shera, real maternal-uncle of Irshad Ahmad, appellant, the latter stated that 'there had been a compromise between the parties and Mst. Safia was married in exchange'. He denied the fact that Aroora was murdered 8/10 years earlier and Muhammad accused and others were challaned and the case was compromised. He, however, admitted that Mst. Safia was married to Muhammad Ashiq 'due to a compromise having been effected between the parties and Ashiq had no male issue, she was divorced and then she was married to Ranjha, real brother of Anara P.W. Before the occurrence'. According to him, Daim had never instituted a civil suit against the accused persons. 26. He tendered in his defence certified copies of the order of Civil Judge, Mandi Bahauddin dated 7-3-1982 (Exh.D.B.) Khasra Girdawri (Exh.D.E.) and Aks Shajra (Exh.P.F.). 27. Bashir Ahmed, appellant, also said that the murder of his maternal-uncle was compromised; he denied that Muhammad etc. Were challaned for the murder of Aroora; according to him, the brother of Muhammad accused was challaned with others. 28. The learned trial Judge found 'that the prosecution has established the motive as against the accused Irshad and to a lesser degree as against Bashir accused. No other motive has been attributed to any other accused nor was even asserted'. As to the ocular testimony of Karam Ali and Wali P.Ws., the learned trial Judge was 'not convinced with the contention of P.W.11 Wali that at the relevant time, he was coming from the Dera of Manak or that of his own Dera as the existence of both the Deras is nowhere established'. In his view, therefore, `the presence of Wali at the time of occurrence cannot be safely believed'. After so excluding the evidence of Wali P.W., the learned trial Judge held that `complainant Karam Ali alongwith his nephew Allah Bakhsh deceased and Daim had gone to Mandi Bahauddin and came back in the evening on the fateful day'. 29. After a scrutiny of the evidence of Karam Ali P.W. The learned trial Judge reached the conclusion that 'except accused Irshad and Bashir the participation of the remaining six accused is not fully established and is shrouded under mystery. At the time when the offence was committed, it is not plausible to believe that the complainant Karam Ali would have identified each and every accused with minute details of firing at the deceased. He himself was in the close range of the accused and was having inimical terms towards them but he was not injured at all'. Thus it seems to him that 'by way of abundant caution and safe dispensation of justice, it will be feasible to give benefit of doubt to the accused Bati, Dosa, Umra, Qadir, Waryam and Muhammad'. As regards the appellants, their case, it was held by the learned Additional Sessions Judge, stood on different footing. As against them, if any corroboration was needed, so observed the learned trial Judge', 'it can be found in the report of Director Forensic Science Laboratory Exh.P.V. According to which the crime empties mark C.1 to C.2, C.6 and C.10 were fired from the gun P.1 secured from the accused Irshad, wheras empties C.4, C.5, C.8 and C.9 were found to have been fired with the gun P.2 secured from the accused Bashir. The securing of 10 fire empties P.17 to P.26 from the place of occurrence is not a disputed fact'. 30. Learned counsel for the appellants argued that Wali P.W. Was rightly disbelieved by the learned trial Court; he referred to the observations of the learned trial Judge regarding Karam Ali P.W. And contended that his evidence was also doubtful and should haNYe been disbelieved. In this connection, he particularly called our attention to the observations of the learned trial Judge that Karam Ali P.W. Had made improvements in his statement at the trial. For instance, in his statement (Exh.P.K.) he had said that 'it was Irshad who gave a straight fire shot to Bakhsha on his head whereas second shot was made by Dosa on his right flank on which Bakhsha fell down. Bashir son of Lala gave a fire shot to Daim on his right car, whereas Waryam fired a gun shot to Daim on his right arm who fell down. Thereafter, all the accused started firing one by one to both the deceased
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on the various parts of their body. Same version was narrated by him in his statement before the Court out here he improved his version by stating that Qadir accused also fired at Daim on his belly'. This specific injury, so commented the learned trial Judge, was not mentioned by him in his statement Exh.P.K. During cross-examination, he further improved his version and deposed that Umra accused had also fired at Bakhsha by putting his muzzle on his right arm. 'This specific attribution of injury to Umra was not earlier mentioned in his statement Exh.P.K.' It appeared to the learned trial Court, therefore, that the complainant was interested to exaggerate his version in order to implicate maximum number of accused by giving them specific roles. Learned counsel also referred to the criticism of Karam Ali P.W.'s testimony by the learned trial Court, namely, that Karam Ali 'did not know as to how many fires were being made by the accused persons after both the deceased had fallen on the ground' adding that `this witness was not clear in his mind as to the actual firing attributed to each of the accused'. In support of his contention that Karam Ali P.W. Had not seen the occurrence taking place, learned counsel pointed out that if Karam Ali and the deceased persons had travelled by bus before the incident, the bus tickets should have been on the dead bodies or should have been with Karam Ali P.W. In this behalf, he also referred to the Investigating Officer's admission that no money was found on the dead bodies. Learned counsel also contended that the story that Karam Ali had reported the incident to Dildar Ali S.I. At the bus stand is belied by the fact that the former stated that Karam Ali was present at the spot when he reached there and that Wali P.W. Said that Karam Ali P.W.'s statement was recorded at the spot. In any case, so runs the argument, Karam Ali P.W. Himself was an interested witness and his testimony required corroboration. In his view, the alleged recovery of empties from the spot and the guns from the appellants was doubtful and it could not serve as corroboration to the testimony of Karam Ali P.W. The empties, it was pointed out, did not find mention in the F.I.R. Or in the inquest reports and Wali P.W., himself, an interested witness, who deposed to the recovery of empties, admitted that he had not signed any papers on that day. As to the guns, the only public witness Anara, it was argued, was an enemy of the appellants and their co-accused; he had admitted that houses of the accused persons had been raided before the guns were recovered which according to the learned counsel should mean that the houses of the appellants had been searched before the recovery but no guns had been found. 31. Learned counsel for the State and the learned counsel for the complainant on the other hand were of the view that the learned trial Court had wrongly disbelieved Wali P.W. They maintained that the F.I.R. Was lodged promptly and the recovery of empties from the spot and the guns from the appellants was fully proved. 32. The first contention of the learned counsel for the appellants calls for some comments on the concept of corroboration. The word 'corroboration' is not a technical term of art but a dictionary word bearing its dictionary meaning which by itself means no more than evidence tending to confirm other evidence. (Lord Hailsham in D.P.P. V. Kilbourne 1973 (A.C.) 729; nor is there anything technical in the idea of corroboration. 'When in ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statement or circumstances with which it fits in.' (Lord Reid in D.P.P. v. Kilbourne's case referred to above). In that case Lord Hailsham had (at page 746) said that:-- "Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness's testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If
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a witness's testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise." ' Elaborating upon these observations in Boardman v. D.P.P. (1975) 60 Criminal Appeal Reports 165 at 183), Lord Hailsham said:-- "What I said in Kilbourne (Supra) was not that to give or require corroboration a witness must be believed without doubt. What I said, and what I meant, was that unless a witness's evidence was intrinsically credible, he could neither afford corroboration nor be thought to require it. In such cases, the witness's evidence is rejected before the question of corroboration arises. Of course, a conviction in such a case can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is strong enough. But this is because the independent evidence has proved the case independently of the unreliable witness, and not because the unreliable witness is corroborated." 33. Along the same lines, we venture to think, has the law of corroboration developed in Pakistan. In the leading authority on the point, Niaz v. The State PLD 1960 SC 387 it was held that '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…
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