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Criminal Appeals Nos. 154 and 155 of 1983, decided on 7th October, 1985.

(On appeal from the judgment and order of Lahore High Court, Lahore, dated 11‑7‑1979, in Criminal Appeal No. 88 of 1978 and Murder Reference No. 258 of 1978).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302/149, 452/148 149‑‑Leave to appeal granted to examine correctness of judgment of High Court whereby conviction of six accused under Ss. 302/149 & 452/149/148 was maintained and that of seven others set aside.

‑‑‑Ss. 302/149 & 452/149/148‑‑Extra‑judicial confession proved by prosecution witness who enjoyed no position of trust or confidence and was inimical to family of accused due to civil litigation between his brother and deceased‑‑Such confession not inspiring confidence and not sufficient in circumstances of case to record conviction‑‑Recovery witness produced in case, apart from Investigating Officer, stating that he was tortured by Police who asked him to sign recovery memo which he did‑‑Reliance was placed on statement of Investigation officer about whom another prosecution witness stated that he was bribed by accused and he spoiled first information report‑‑Eye‑witnesses not giving a consistent account and inconsistencies not explained plausibly‑‑Claim of witnesses to be eye‑witnesses of occurrence remaining in serious doubt‑‑Conviction of accused, held, could not be sustained on material on record as well as for safe administration of justice‑‑Conviction and sentence set aside.

Ghulam Sarwar Chaudhry, Advocate Supreme Court with Pervez Alamgir, Advocate Supreme Court for Appellant.

Ch. Asghar Ali, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant No. 3.

Mian Inamul Haq, Advocate Supreme Court with M. Yousaf Khan, Advocate‑on‑Record (absent).

Ch. Attaullah, Advocate (absent) for Appellant.

Ghulam Sarwar, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Respondents Nos. 1 to 10.

Date of hearing: 7th October, 1985.

Leave to appeal was granted to four out of six convicts who sought leave to appeal and also to the complainant to examine the correctness of the judgment of the Lahore High Court, dated 11th of July, 1979 whereby the conviction of six accused under sections 302/149, P.P.C., 452/149 and under section 148, P.P.C. was maintained and that of seven others was set aside.

Nur Muhammad deceased was married to Nawab Bibi and had three sons Amanat Ali, Hakim Ali and Shahadat Ali the accused in this case and three daughters including one Mst. Barkat Bibi. He had contracted a second marriage with Mst. Hashmat Bibi from whom he got son Zulfiqar aged about 8/9 years. Mst. Hashmat Bibi was earlier married to one Yousaf who had divorced her and thereafter she had married Nur Muhammad deceased. She had a daughter Mst. Hanifan from Yousaf, her previous husband, who was living with her as family member of Nur Muhammad deceased. Shams Din, the father of Nur Muhammad owned over 100 Acres of land in village Dhillum, Police Station Bhai Pheru, District Kasur. He had given 18 Acres to each of his four grandsons, the three accused and Zulfiqar. He had also given 60 Acres or near about to Nur Muhammad. Nur Muhammad had gifted 3; Acres to Muhammad Shafi, a brother of Mst. Hashmat Bibi and he had given another 15 Acres for cultivation gratis to Muhammad Sharif P.W. 4 another brother of Hashmat Bibi. Such a disposal of land had aggrieved Shahadat and his brothers. It is also said that they wanted to marry Mst. Barkat Bibi their sister to Rehmat Ali one of the accused in this case son of Dilmir but the deceased Nur Muhammad was opposed to it.

On the night of 5/6th September, 1973 Nur Muhammad alongwith his wife Mst. Hashmat Bibi, his son Zulfiqar and daughter Hanifan from the previous husband of Mst. Hashmat Bibi was asleep on the Chaubara of their house the lower portion of which was occupied by the family of Mst. Nawab Bibi. There was an alarm raised from the Chaubara at about 11‑30 p.m. as if they were attacked. This attracted Muhammad Sharif, P.W. 4, Hameedan P.W. 5, his sister and Muhammad Hassan (not produced) her husband to the scene. They saw the accused variously armed descending from the Chaubara and going away. They being afraid waited for the morning when they reached the Chaubara from the roof the adjoining house and found that all the four were dead. Leaving one Bashir at the scene, Muhammad Sharif, P.W. 4 went to the Police Station Bhai Pheru at a distance of three miles from there and lodged a report with Sub‑Inspector Nur Muhammad at 7‑30 a.m. In this report he named seven persons attributing to each one of them a weapon of offence. When the Sub‑Inspector arrived at the scene, Muhammad Sharif P.W. 4. gave a supplementary statement (Exh. D.A.) wherein he retained the name of Shahadat Ali as the assailant but substituted six others named by him with certain others. In this manner in all thirteen persons were sent up for trial on his two statements.

The Investigating Officer attended to the dead bodies and despatched them for their autopsy. He recovered from the spot nine fire‑arm empties, thirty pellets and an empty bullet. The "Khes", the "Chadars" the "Cots" were found stained with blood and they were taken into possession.

Noor Muhammad and Shahadat Ali the two accused are said to have approached Ghulam lrtaza P.W. 9 and made a confession (extra- judicial) of their having committed the crime in the company of five others named by them. Shahadat gave the motive for the offence as the inequitable distribution of land while Noor Muhammad complained of the enticement of his sister by Muhammad Sharif. They were both produced the next morning by Ghulam Irtaza before the police officer.

At the time of their arrest Shahadat had a blood‑stained Chadar. Noor Muhammad had also a blood‑stained Chadar and a Dhoti. Barkat Masih had a blood‑stained turban, Nazir had a blood‑stained Chadar; Ghulam Muhammad had a blood‑stained turban, Abdul Latif had a blood stained shirt and a Chadar while Hussain Masih had a blood‑stained shirt. Apart from this, Shahadat led to the recovery of a gun P. 40 and Chhavi P. 33, Nur Muhammad led to the recovery of blood‑stained Toka, Barkat Masih led to the recovery of a blood‑stained Safa, Nazir Ahmad led to the recovery of a blood‑stained Toka and a .12 bore pistol. Ghulam Muhammad led to the recovery of a blood‑stained Toka while Abdul Latif led to the recovery of a rifle. Nawab also got recovered a Toka, Dilbeer a gun, Habib also a gun, Rehmat Ali a rifle and Amanat Ali and Hakam Ali Tokas. The 12 bore gun P. 40 recovered from Shahadat matched with the crime empties recovered from the spot though there were no pellet injuries on any of the deceased. Rifle P. 41 recovered from Abdul Latif was found to match with the empties recovered from the spot.

Dr. Nasim Ahmad Qureshi, P.W. 1 performed autopsy and reported on Mst. Hashmat one fire‑arm injury, 22 cut wounds and one swelling; on the person of Zulfiqar 32 cut wounds, on the person of Nur Muhammad deceased 21 cut wounds and on the person of Hanifan 57 cut wounds all caused by sharp‑edged weapons.

The accused facing their trial denied the motive as well as their having committed the offence alleged against them and they pleaded false implication in the case either on account of suspicion or on account of enmity.

The trial Court believed the motive and the ocular evidence and convicted all the thirteen accused persons facing the trial as hereunder: ‑‑

"(a) Under section 302/34, P.P.C. to death, on all the four counts, subject to the confirmation of the High Court, and to pay a fine of Rs.4,000 each on each of the four counts, or in default to suffer rigorous imprisonment for six months each on each of the said counts;

(b) Under section 452, P.P.C. to five years, rigorous imprisonment, each and to pay a fine of Rs.1,000 each or in default to suffer two months' rigorous imprisonment each;

(c) Under section 148, P.P.C. to rigorous imprisonment for one year each."

On appeal and while seized of the reference for confirmation of the death sentence, the High Court modified the conviction and sentence. It believed the motive only against Shahadat, Hakim Ali and Amanat Ali and against none else. It believed the version given by Muhammad Sharif P.W. 4 in his supplementary statement to the police and in so far it received corroboration from the recoveries made from them. For this reason six of the convicts were found guilty under sections 302/149, 452/149 and 148, P.P.C. These are Nur Muhammad, Nazir Ahmad, Ghulam Muhammad, Barkat Masih, the appellants and Shahadat and Abdul Latif the non‑appealing convicts. The first three were sentenced to death and their sentence of death was confirmed while the other three were sentenced to life imprisonment. The sentence of fine and their conviction and sentence for other offences as ordered by the trial Court was maintained. The acquittal of other seven was recorded.

Muhammad Sharif in his petition for leave to appeal in which leave was granted challenged the judgment of the High Court in so far as it reduced the sentences of Shahadat, Barkat Masih and Abdul Latif and in so far as it acquitted seven others. The four convicts have appealed generally against their conviction and sentence.

There were three versions of the occurrence‑‑All of them provided by the same witness, the complainant Muhammad Sharif, P.W. 4. The first version is in the F.I.R. Exh. P.E. It is complete, coherent and consistent charging seven accused (1. Shahadat Ali, 2. Hakam Ali, 3. Amanat Ali, 4. Rehmat Ali, 5. Habib, 6. Dilmir 7. Nawab) attributing to each one of them a specific weapon. This first version came to be recorded after about eight hours of the occurrence. Identification of the culprits was claimed from close advantageous point near the stairs and on account of there being moonlight. In the second version, statement (Exh. D.A.) recorded under section 161, Cr.P.C. he claimed identification of only Shahadat Ali and implication of six others on the basis of suspicion alone because of their being associates of Shahadat Ali. His revised version was based on the information allegedly supplied to him by his own sister Mst. Hameedan Bibi (P.W. 5) and her husband Muhammad Hasan (not produced). He substituted six accused by naming others (1. Noor Muhammad, 2. Ghulam Muhammad, 3. Barkat Masih, 4. Hussain Masih, 5. Nazir Ahmad, 6. Abdul Latif) retaining Shahadat Ali in both versions. An additional offence was made against the accused of their having removed from Mst. Hashmat deceased's neck gold "Ghani" and from the possession of Nur Muhammad deceased a gun. He in this statement did not attribute any weapon to these substituted accused. At the trial he named all the thirteen accused combining those named in Exh. P.E. and Exh. D.A. as the assailants assigning the weapons to everyone of them in the following words‑‑

"I saw Dilmira and his son whose name I do not remember (the witness has pointed towards Rehmat accused present in the Court). Shahadat Ali, Hakim Ali, Amanat Ali, Nawab, Habib, Barkat Masih, Hussain Masih, Latif, Nazir and Ghulam Muhammad alias Ghuma, and Noor Muhammad coming down from the stair‑case of the Chobara. Shahadat had a Toka and a gun in his hands, Noor accused had a Toka, Hussain Masih had sword, Latif had a rifle, Nazir had Toka, Ghulam Muhammad had a Sota, Hakim Ali had a Toka, Amanat Ali had Toka, Dilmir and Habib had rifles, Rehmat son of Dilmir had a Toka, Nawab had a Toka. I had identified all of them. Some residents of village were attracted to the spot, but Shahadat Ali and Noor Muhammad accused threatened to kill anybody who came near, therefore, no body came near the place of occurrence. The accused when they saw me shouted that I also will be done to death then I ran away to a nearby Beri tree."

The High Court by the impugned judgment rejected the first version of the complainant and also the one given at the trial and preferred as correct the statement given by him to the police while examined under section 161, Cr.P.C. The observation made was "the testimony of the eye‑witnesses to the extent that it implicates the seven appellants whose names Muhammad Sharif P.W.4 gave in his supplementary statement is truthful and can be relied upon."

The only other eye‑witness produced at the trial was Mst. Hameedan Bibi P.W. 5. She stated‑‑

"I and Muhammad Hassan stood near the door of the Haveli but I cannot say where Muhammad Sharif went. Mst. Hashmat my sister was asking for water. But there was the sound of firing. We saw some persons coming down from Chobara from a Neem tree. I identified them as Shahadat, Noor Muhammad, Hussain Masih, Barkat, Nazir, Ghulam Muhammad, Latif accused. As they belong to my village, therefore, I identified them. They ran away out side the village. I went towards my house but nobody was there."

She was confronted with her statement in the commitment Court and she admitted that‑‑

"I stated before C.M. that some accused came out of the Chobara through a Neem tree and the others by the stair‑case and they were 13 in all."

This contradiction was explained away by the High Court by observing as follows‑‑

"As regards the statement made by Mst. Hameedan P.W. 5 that she saw the seven assailants climb down the Chaubara from the Neem tree, the same appears to be an exaggeration on her part as neither she not her husband in their statements to the police mentioned such a fact. In their statements, they both stated that they saw the seven assailants from near the door of the Haveli of Noor Muhammad deceased. This exaggeration does not affect the general veracity of their testimony. The testimony of the eye‑witnesses to the extent that it implicate the seven appellants whose names Muhammad Sharif P.W. 4 gave in his supplementary statement is truthful and can be relied upon."

It is surprising that the High Court has utilized the statement made by husband (Muhammad Hasan) of Hameedan (P.W. 5) to the police under section 161 for corroborating the prosecution version though he was not examined at the trial at all as a prosecution witness and was given up by the prosecutor as unnecessary.

The claim of Muhammad Sharif to be an eye‑witness is not free from serious doubt in view of the position taken by him which has become irreconcilable. Mst. Hameedan's presence also cannot be accepted as fully established on account of absence of her name in the First Information Report lodged by Muhammad Sharif P.W. 4 and on account of material discrepancies in her statement with regard to the presence and the number of culprits. Muhammad Hasan, the other eye‑witness had not been produced considering him to be unnecessary.

As regards the confession proved by Ghulam Irtaza P.W. 9 we find that he is not such a respectable person of the locality that his intercession could be sought for by the accused for access to the police in a case in which they were charged. Besides, he enjoyed no position of trust or confidence. As a matter of fact, evidence on record shows that he was inimical to their family, his brother, being involved successfully in civil litigation against Nur Muhammad deceased in respect of land which was purchased by the deceased. Further, that part of the confession has been disbelieved wherein Nur Muhammad gave the reason for his participation in the crime as the enticement of his sister by Muhammad Sharif P.W. 4. To that extent, the confession was found to be untrue. The extra‑judicial confession, proved through Ghulam Irtaza does not inspire confidence and is not sufficient in the circumstances of the case to record the conviction.

The only recovery witness produced in the case apart from the Investigating Officer is Muhammad Iqbal P.W. 10. He claims Muhammad Sharif P.W. 4 to be his nephew. He stated as follows:‑‑

"It is correct to suggest that today the police has tortured me. It is correct that when I went the clothes were lying with the police and they told me that they are recovered from the accused and they asked me to sign the recoveries memo which I did."

The trial Court rejected his statement with regard to the recoveries and so did the learned Judges of the High Court. For proving the recoveries, reliance was placed only on the statement of the Investigating Officer Noor Muhammad, P.W. 11. About the Investigating Officer, Sharif P. W.4 stated as follows:‑‑

"The S.H.O. had been bribed by the accused and he spoiled the F.I.R. He had omitted the names of 6 accused in the F.I.R. He subsequently recorded my supplementary statement and included the remaining 6 accused."

The learned Judge in the High Court with regard to the Investigating Officer observed as hereunder‑‑

"If the earlier F.I.R. Exh. P.E. and the later supplementary statement Exh . D . A. been incorrectly recorded by the police officer, as alleged by Muhammad Sharif P.W. 4 at the trial he would have not only raised a hue and cry with the Inspector General of Police and had the Investigation transferred from the hands of Noor Muhammad S.I. P.W. 11, but also cross‑examination at length the latter in that respect at the trial, none of which he did."

We find from a review of the evidence on record that the eye‑witnesses have not given a consistent account nor have the inconsistencies been plausibly explained. Their claim to be the eye witnesses of the occurrence remains in serious doubt. So is the confession and the recovery. On the material on record it is not possible, consistent with the well‑recognised principles for safe administration of criminal justice, to sustain the conviction and the sentence of the appellants. The appeal of the convicts is accepted and their conviction and sentence is set aside. They shall be set at liberty forthwith unless their detention is required in some other case. The order of acquittal shall be extended to non‑appealing convicts, namely, Shahadat and Abdul Latif also. The appeal of Sharif consequently stands dismissed. Besides, none appeared to prosecute that appeal.

M. Y. H. Appeal allowed.

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