2006 S C M R1906

[Supreme Court of Pakistan]

Present:Khalil-ur-Rehman Ramday, Nasir-ul-Mulk and Raja Fayyaz Ahmed, JJ

Mst. HUSSAN ZARI—-Petitioner

Versus

SHER BAHADUR and others—-Respondents

Criminal Appeal. No.577 of 2006 in Criminal PetitionNo.106-P of 2002, decided on 16th June, 2006.

(On appeal from the judgment, dated 30-4-2002 of thePeshawar High Court, Peshawar, passed in Criminal Appeal No.392 of 2000).

Penal Code (XLV of 1860)–

—-Ss. 302(b), 324, 148 & 149—Reappraisal ofevidence—Triple murder— Cross-fires–Counter-F.I.Rs.— Aggressor party,non-determination of—Five accused were convicted by Trial Court and sentencedto life imprisonment for murder of three persons and injuring one prosecutionwitness—Conviction and sentence awarded by Trial Court was set aside by High,Court on the ground that prosecution evidence remained uncorroborated in allmaterial aspects of the case and it could not be determined as to which of thetwo parties was aggressor—Validity—Seeking corroboration of oculartestimony was only a rule of caution where one was in some doubt about theveracity of witness and was never a rule of law—Presence of two eye-witnessesat the place of occurrence was not open to any doubt nor did any reason existto suspect credibility of their testimony vis-a-vis any of the accusedpersons—Occurrence was admitted on all sides, its time, date and place werealso not in dispute and it was also not denied that complainant party had lostthree lives in the occurrence while fourth victim had survived on account of,her sheer good-luck—Five accused were saddled with the liability of causingloss of lives—Credible evidence was available on record to establish theaccusation against accused persons—Acquitting all the accused on the groundthat it could not be determined as to which one of the two parties hadinitiated aggression, was a grave error—Giving such premium to partiesfighting pitched battles and butchering people in the process could never beapproved—Supreme Court converted petition for leave to appeal into appeal,set aside judgment of High Court whereby accused were acquitted and sentenceand conviction awarded by Trial Court was restored—Appeal was allowedaccordingly.

Ali Bepari’s case PLD 1962 SC 502 rel.

Fateh Muhammad Khan, Advocate SupremeCourt/Advocate-on-Record for Petitioner.

Mian Muhibullah Kakakhel, Advocate Supreme Court withTasleem Hussain, Advocate-on-Record for Respondents Nos. 1 to 5.

M. Saeed Khan, Additional Advocate-General, N.-W.F.P.for the State.

Date of hearing: 16th June, 2006.

JUDGMENT

KHALIL-UR-REHMAN RAMDAY, J.—In an occurrencewhich had taken place on 15-8-1993 at about 6-00 a.m. in the area of PoliceStation Khanmai of District Charsadda, three brothers of Mumtaz complainant,namely, Lal Rehman, Awal Khan and Turab had been allegedly murdered by therespondents while the wife of the said Mumtaz namely, Mst. Zulekha (P.W.10) hadalso received fire-arm injuries on her person but had survived the same.

2. It is also available on record though not in aproper and detailed form that in the same occurrence, one Mst. Khaista Jan ofthe accused-respondents’ party had also got killed while Mehmood and Muradrespondents as also one Mst. Hussana of the said party had received injuries ontheir persons.. A cross-F.I.R. bearing No.239 had been registered at the samepolice station against the complainant party of the present case. We wereinformed during the course of hearing of this petition that the Peshawar HighCourt had acquitted the present complainant party in the said case arising outof the said F.I.R. No.239 and further that the complainant party of the saidcase i.e. the accused party of the present case had not challenged the saidacquittal any further.

3. Sher Bahadur and Farhad respondents are realbrothers while Shakir respondent, Murad respondent and Mukhtar accused who haddied during the course of the trial are real brothers inter se and are the sonsof Mehmood respondent.

4. As a result of the trial, the five privaterespondents were convicted under section 302(b)/149, P.P.C. and each one ofthem was punished with a sentence of imprisonment for life on three counts. Thesaid respondents were also convicted under section 324/149, P.P.C. for themurderous assault committed on Mst. Zulekha P.W. and each one of them waspunished, inter alia, with five years’ R.I. on the said charge. All the saidrespondents were also found guilty under section 148, P.P.C. and each of themwas ordered to suffer, inter alia, three years’ R.I. therefor. All the saidsentences of imprisonment were directed to run concurrently and the benefit ofthe provisions of section 382-B, Cr.P.C. was also extended to them.

5. However, on an appeal filed by them in thePeshawar High Court, all the said respondents were acquitted of all the saidcharges essentially on the ground that the three deceased persons and thefourth surviving victim had received a total number of five wounds of entrancewhile six accused persons (including Mukhtar accused since dead) were sought tobe hanged for the same; that the said accused persons were allegedly armed withdifferent types of fire-arm weapons like shot-guns and klashnikovs but no emptyof any gun had been recovered from the spot; that it had not been specified bythe eye-witnesses ‘as to which accused was carrying which fire-arm weapon; thatthe crime-empties recovered from the spot had not been sent to the Fire-armsExpert; that the occurrence in question had allegedly taken place at 6-00 a.m.and although the F.I.R. is stated to have been recorded at 7-00 a.m. but thecomplainant had cast doubts about the time of the lodging of the said F.I.R. asaccording to him, after lodging the F.I.R., he had returned to the place ofoccurrence along with the S.H.O. at about 6-45 or 7-00 a.m. while the distancebetween the police station where the F.I.R. had been recorded and the place ofoccurrence was about 7/8 miles; that injured Mst. Zulekha (P. W.10) was awitness only to the extent of injuries received by her and never claimed tohave witnessed the killing of the three deceased persons; that Mumtazcomplainant (P.W.9) was thus the only eye-witness produced by the prosecutionregarding the murder of. the three deceased persons but no corroboration wasavailable in verification of the testimony offered by him; that the prosecutionhad suppressed the injuries caused by the present complainant party on themembers of the present accused-party; that although the victims on both thesides had been attacked during the course of the same occurrence but it wasdifficult to determine as to which of the two sides had commenced theaggression and that in the circumstances the accused persons were entitled tothe benefit of doubt.

6. What appears from the record is that no backgroundof any enmity or even the slightest ill-will or animosity existed between thetwo parties and it was only on account of the switching on/switching off of afan in the mosque where Mumtaz complainant and Murad respondent had gone tooffer Fajjar prayers that some altercation had taken place between the two ofthem which had then led to the occurrence in question. This was thus, a casewhere the two eye-witnesses, namely, Mumtaz complainant P.W.9 and his wife Mst.Zulekha, the injured P.W.10 would have no reason or motive to falsely accusethe respondents of their participation in the occurrence in question. A largenumber of victims on both sides i.e. three dead and one injured on thecomplainant’s side and one dead and three injured on the respondents side,would also indicate towards the participation of a fairly large number ofpersons in the said occurrence which would rule out the possibility of theproverbial and the usual widening of the net in criminal cases.

7. Although no effort was made by either side tobring the F.I.R. of the cross-case i.e. F.I.R. No.239, lodged against thepresent complainant party, on the record of this case yet it is available inevidence through the Investigating Officer, namely, Muhammad Sharif Khan,Inspector (P.W.15) that Mumtaz complainant of the present case was one of theaccused persons of the said cross-case. In the circumstances, the presence ofMumtaz complainant at the place of occurrence at the relevant time and theconsequent witnessing of the said occurrence by him stood admitted on record.As has been mentioned above, he had no enmity with the respondents and wasthus, not an inimical or an interested witness. As has also been noticed above,on account of the fire-arm injuries received by at least eight persons of thetwo sides, the participation of a fairly large number of persons in the saidoccurrence could not be ruled out. In the circumstances, no exception could betaken to the testimony offered by Mumtaz complainant who was an independent andan admitted witness of the said occurrence.

8. Similar was the position with regard to his wifeMst. Zulekha P.W. who was herself an injured victim of the occurrence inquestion. It is true that she never claimed to have witnessed the actual firingof the shots by the respondents at the deceased persons but then she hadspecifically claimed that on coming out of her house she had seen the namedaccused persons running in the `Kucha’ after having done the deceased personsto death and it was while so running that they had come to her and had fired ather resulting in injuries on her person. Therefore, she was not the kind ofwitness who could be said to know nothing about the killing of the threedeceased persons as she had seen the respondents running away after causinginjuries on the bodies of the three deceased persons and which accused personshad been fired shots even at her. She also had no ill-will against any of therespondents and was thus a credible and a trustworthy witness against them.

9. Seeking corroboration of ocular testimony was onlya rule of caution where one was in some doubt about the veracity thereof andwas never a rule of law. As has been mentioned above, the presence of the A twoeye-witnesses at the place of occurrence was not open to any doubt nor did anyreason exist to suspect the credibility of their testimony vis-a-vis any of theaccused persons.

10. It was noticed by this Court in Ali Bepari’s casereported as PLD 1962 SC 502 that in such-like cases which were adversarial innature, the parties did not, generally, come out with true stories and insteadmade efforts to minimize their respective roles in the occurrence. It was,therefore, laid down that the Courts should never feel deterred, by theincompleteness of the tales told, from drawing their own inferences from thefacts and circumstances which were available on record.

11. The occurrence in question is admitted on allsides. Its time, date and place are also not in dispute. It is also not deniedthat Mumtaz complainant party had lost three lives in the said occurrence whilethe fourth` victim had survived though on account of her sheer good-luck. Thefive respondents plus Mukhtar accused, since dead, had been saddled with theliability of causing the said loss. Credible evidence was available on recordto establish the said accusation against the said accused persons. In the circumstances,acquitting them all on the ground that it could not be determined as to whichone of the two parties had initiated the aggression, was a grave error. Givingsuch a premium to parties fighting pitched battles and butchering people in theprocess, could never be approved.

12. Having heard the learned counsel for the parties;having perused the record and having thus, examined all aspects of the matter,we find that the impugned judgment of the Peshawar High Court, dated 30-4-2002passed in Criminal Appeal No.392 of 2000 could not be sustained.

13. Consequently, this petition is converted intoappeal which is allowed as a result whereof the said impugned judgment is setaside together with the acquittal recorded in favour of the private respondentsand as a further result whereof the judgment, the conviction and thepunishments, as recorded against them by the learned trial Judge, are restored.

14. The convict-respondents shall be taken intocustody to suffer the un-suffered part of the sentences awarded to them.

M.H./H-11/SC Appealallowed.