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Petitioner: SAEED AHMAD AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sheikh Anwarul Haq, Karam Elahi Chauhan Title: SAEED AHMAD AND Another vs THE STATE Case No.: Criminal Appeal No. 643 and Murder Reference No. 207 of 1970 Date of Judgment:1971-10-01 Reported As: PLD 1972 Lahore 360 Result: Appeal accepted
JUDGMENT
JUDGMENT K. E. CHAUHAN. J.-Four persons, namely, (i) Anwar Saeed (ii) Saeed Ahmad, (iii) Majid Ahmad and (iv) Mujeeb-Ullah were tried by the learned Sessions Judge, Gujranwala, under section 302/34, P. P. C., for the murder of one Muhammad Sadiq alias Sadu, a Peon at the Northern Octroi Post Qila Dedar Singh (District Gujranwala) and under section 307/34, P. P. C., for attempt to murder with revolvers two prosecution witnesses Muhammad Aslam (P. W. 5) and Rehmat Ullah (P. W. 6). By means of his judgment and order, dated 24-9-1970 the learned Sessions Judge acquitted Majid Ahmad and Mujib-Ullah (accused Nos. 3 and 4 mentioned above) and convicted Saeed Ahmad (accused No. 2) under section 302, P. P. C., for murdering the deceased hereinbefore mentioned and sentenced him to death and a fine of Rs. 5,(.00.00 (Rupees Five thousand only) or rigorous imprisonment for three years in lieu of fine. The fine imposed under section 302, P. P. C., if realised, is to be paid as compensation under section 544-A of the Code of Criminal Procedure to the heirs of Sadu deceased. He has also been convicted under section 307/34, P. P. C., for attempt to murder the injured P. Ws. And sentenced to undergo rigorous imprison--ment of five years and a fine of Rs. 1,000.00 (Rupees one thousand only) on two counts or rigorous imprisonment of one year's in lieu of fine. Anwar Saeed (accused No. 1) was convicted under section 302/34, P. P. C. And sentenced to transportation for life. He was also convicted on two counts under section 307/34, P. P. C. And sentenced to rigorous imprison--ment of five years. The fine imposed under section 307/34, P. P. C., if realised, is to be paid to the two injured P. Ws. In equal shares. All the sentences were to run concurrently. The convicted accused have come up in appeal to this Court under section 410 of the Criminal Procedure Code, and the case of the condemned prisoner has been referred to us for confirmation by the learned Sessions Judge, under section 374 of the said Code. There is a private
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Revision (being Cr. Revision No. 163 of 1971), filed by Qaim Din other of the deceased against the acquitted accused. This judgment will dispose of all the aforesaid three matters. 2. (a) The prosecution case is that in Town Committee, Qila Dedar Singh there was a party faction. One party was of Ch. Muhammad Riaz, Chairman (also called as Riaz Ahmad) (P. W. 13) and the other was of Mujeeb-Ullah acquitted accused). The deceased who was a Chaprasi in the Octroi Post, Muhammad Aslam (P. W. 5) and Rehmat-Ullah (P. W. 6), who were Muharrirs belonged to the party of Ch. Riaz Ahmad, Chairman, whereas the accused belonged to the party of Mujeeb-Ullah. The present occurrence, it is alleged, was a sequel of that party faction. (b) 1t is further alleged that about 1f years prior to the occurrence, the deceased Muhammad Sadiq along with others had beaten Mujeeb-Ullah with sofas. This incident was sought to be proved from P. W. 3 Muhammad Saeed alias Lili, but as he was not an eye-witness of the alleged occurrence, and his testimony on this point was merely hearsay and also because he was inimical to Mujeeb- Ullah the learned Sessions Judge did not believe him in this respect. (c) Another allegation was that 15/ 16 days prior to the occurrence, Muhammad Sadiq deceased, quarrelled with Anwar Saeed and Majid Ahmad accused at Bus Stand of Qila Didar Singh. This part of the motive was sought to be proved from Muhammad Saeed (P. W. 3), Aslam (P. W. 5) and Rehmat-Ullah (P. W. 6). P. W. 3 Muhammad Saeed was not an eye-witness of this occurrence and his testimony merely being hearsay, he was not relied upon by the learned Sessions Judge. As regards Rehmat-- Ullah (P. W. 6), he was confronted with his statement before the Police (Exh. D. N.), wherein he had stated that the quarrel was with Khalid Mahmood and Salim Mahmood sons of Allah Ditta, Secretary and not Sadu deceased. His deposition in Court, therefore, to the effect that quarrel was with Sadu deceased was belied from his own previous statement. Due to that contradictory stand, the deposition of Aslam (P. W. 5) was also not relied upon by the learned Sessions Judge. We have examined these aspect of the matter and we agree with the learned Sessions Judge that motives mentioned in sub-paras. (6) and (c). Paragraph 2 of this judgment, have not been satisfactorily proved on the record. 3. The prosecution story is that on 22-7-1967, Rehmat-- Ullah (P. W. 6), Chungi Muharrir remained on duty from 8 a.m. To g p. m., on Northern Octroi Post of Qila Dedar Singh and though he was relieved and the duty was taken over at 8 p.m., by Muhammad Aslam (P. W. 5), still Rehmat-Ullah (P. W. 6) stayed on for gossip. Muhammad Sadiq deceased, who was to remain on duty for all the 24 hours on that day, because the other Peon was on leave, went to sleep on a cot nearby. At 10-40 p.m., Safdar Rashid (P. W. 7) Octroi Inspector came to the Octroi Post for inspection and recorded his Inspection Note Exh. P. K. In the Octroi Register (Exh. P. 13). He also sat down on a chair near a table. At that time, all the four accused appeared on the scene with revolvers in their hands and stationing themselves at a place towards south-east of the cot of Muhammad Sadiq deceased, three out of them opened fire. The shot of Saeed Ahmad hit Muhammad Sadiq who died at the spot. The shot of Majid Ahmad accused hit Muhammad Aslam. (P. W. 5) and the shot of Anwar Saeed hit Rehmat-Ullah (P. W. 6). Mujeeb-Ullah accused, it is alleged, remained standing and did not fire. At the time of this occurrence, the prosecution case i9 that there had arrived a tonga of tonga driver Nazir (P. W. 4) in which Muhammad Saeed (P. W. 3) was sitting. They also saw the occurrence while sitting in the tonga. An alarm was raised and the accused ran away. The alarm attracted one Muhammad Afzal and Muhammad Yunis (both not produced), who took the two injured P. Ws., to Qila Didar Singh Hospital but as the Doctor was not available, they were taken to Gujranwala Hospital by the aforesaid Muhammad Afzal in a car and were admitted there. Muhammad Saeed (P. W. 3) went to the Police Station Qila Dedar Singh at a distance of 1-- furlongs and made F. I. R. (Exh. P. E.) which was recorded by Bashir Hussain A. S. I. (P. W. 15) at 11 p. m. Safdar Rashid Octroi Inspector (P. W. 7), however, remained on the spot to watch the dead body. In the F. I.
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R., all the four accused were alleged to have made the aforesaid attack due to the party-faction hereinbefore mentioned. 4. The post-mortem examination on the dead body of Sadiq deceased was conducted by Dr. Imtiaz Ali Cheema (P. W. 1) who found the following Injuries on his person:- (1) A bullet entrance wound about -- ' x 1/3' x going deep in the chest cavity on the right side of the chest about J" right to the lower one-third sternum between sixth and seventh ribs. (2) A bullet exit wound about -- " x 6/8", on the back of right lumber region 11" below the last rib and 2 from the vertebral column. (3) Abrasion 1" x -- ", on the left side of forehead. The edges of the wound of entrance were inverted and there was no blackening and charring around the edges of the wound. The edges of the wound of injury No. 2 were averted and the underneath ribs were found fractured. The bullet had pierced the lower lobe of right lung and diaphragm and had also pierced through the liver and the kidney. In the opinion of the doctor, death was due to the injury to lower lobe of right lung, liver diaphragm and the right kidney which had caused excessive hae--morrhage and shock. The injury was sufficient to cause death in the ordinary course of nature. The duration between injury and death was soon after the injury and that between death and post-mortem examination was one to two days. Exh. P. C. Is his post--- mortem report and Exh. P. C/1 is the diagram of the injuries. In cross-examination, the doctor deposed that if the deceased was lying on a cot and the assailants fired from the side of his front, Injuries Nos. 1 and 2 could not be caused. 5. The medical examination of the injured P. Ws., was conducted by Dr. Manzoor Ahmad Qureshi (P. W. 2) on 23-7-67 between 9 to 10-30 a.m. Muhammad Aslam (P. W. 5) had the following injuries:- A bullet entrance wound 3/8" x -- ", on the back of right chest middle part two inches to the right of mid line. The edges of the wound were inverted. There was no blackening or charring of the edges of the wound. There was a corresponding hole on the shirt and banyan. The bullet was sound lying 2 -- " below the wound of entry which was removed and sealed in a packet. The injury was kept under observation which was subsequently found simple and was caused by a bullet. The probable duration of the injury was about 3 to 12 hours. Exh. P.M. Is his medico-legal report. 6. Rehmat-Ullah (P. W. 6) had the following injury on his person:-- A bullet entrance wound on the outer side of left flank 1 -- above the iliac crest. The size of the wound was 3/8' x --, its edges were inverted and the wound was directed obliquely downwards and a little forwards. There was no blackening or charring of the edges of the wound. Bullet was found lying embedded deep in the muscles of the buttock about 3" from the wound of entry which was subsequently removed. There was a corresponding hole on the shirt. The injury was simple in nature caused with a bullet and the probable duration of the injury was about 3 to 24 hours. The doctor sealed the removed bullet in a bottle. Exh. P. L. Is his medico-legal report. 7. The Investigating officer found two empty cartridges; one of 0.22 bore and the other of 0.32 bore, and four live-cartridges, one of 0.38 bore and three of 0.32 bore from the place of occurrence. Some pieces of bullets were recovered from the body of the deceased and the injured P. Ws. And though on his arrest on 9-8-1967, Mujeeb-Ullah got recovered his licensed revolver (Exh. P. 1) and three live-cartridges (Exh. P. 14/1 to 3), vide Memo. Exh. P. H. Dated 11-8-1967, all the aforesaid material was not sent to any Expert for comparison. 8. The plea of Anwar Saeed appellant was that on the day of occurrence, he was in Karachi and had been involved due to the enmity between Muhammad Saeed (P. W. 3) and Saeed Ahmad accused (who was maternal uncle of Anwar Saeed). Anwar Saeed led no evidence about his alibi.nd
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9. The plea of Saeed Ahmad was that he had appeared as a prosecution witness in a hurt case against P. W. 3 Muhammad Saeed alias Lilli. He further stated that Allah Ditta, Secretary of the Town Committee had been arrested in a raid case wherein he appeared as a P. W., for which reason Allah Ditta suspected him for that involvement. He also took up the position that he was in Karachi, on the day of occurrence. In support of his plea of alibi, he produced Dr. Mir Abdul Hanif Roshan (D. W. 1) who deposed that on 21-7-67, the accused aforesaid came to him for treatment for a boy of a Chaukidar of his sister. He stated that Saeed Ahmad showed him infection of his own nailbed which he treated. According to the aforesaid D. W., the appellant again went to his Clinic on 22-7-1967 and complained of abdominal discomfort, for which he issued prescription Exh. D. S. He issued Certificate (Exh. D. R.) in this respect. This Doctor was not believed as it was found that he had no regular register; no accounts and the name of the concerned accused did not appear in any of his account books or registers. 10. Majid Ahmad took up the plea that he was in Padeedan Government Hospital of Sind. He produced Dr. Fazal Haque (D. W. 2) who deposed that on 19-7-67, he was incharge Medical Officer of Government Dispensary. Padeedan of District Nawab Shah and examined the accused who complained of acute pain in the abdomen. Exh. D. Y was the outdoor chit issued to the appellant on that day. The accused was admitted in the Hospital as an indoor patient and remained there till 26-7-67. The Doctor stated that on 20-7-67, he found that it was a case of acute appendicitis. He proved Exh. D. U., the Certificate, which he had issued to this effect and which contained the signatures of the concerned accused. The Certificate is, dated 28-7-1967, which was issued on the application of the accused (Exh. D. T.), dated 26-7-1967. Exh. D. V. Was the bed-- head ticket showing the admission and discharge of the accused. All these documents were taken into custody by the police on 9-10-1967, vile memo. D. X. The prosecution cross-examined this witness at length but could not shake his credit. The Police placed this accused in Column No. 2 of the challan. The learned Sessions Judge accepted the defence version and acquitted the accused. 11. Mujeeb Ullah accused deposed that he had been involved in the case due to party faction and enmity. He produced Exh. D. Q., judgment dated 18-8-1964, to show that he was involved in a case under section 341, P. P. C. At the instance of Safdar Rashid Octroi Inspector (P. W. 7), wherein Muhammad Saeed (P. W. 3) appeared as a witness against him. He also produced Exh. D. E. Judgment of Sessions Judge dated 18-1-1965, to show that he was involved in another Octroi Case, wherein Safdar Rashid, Octroi Inspector and Allah Ditta, Secretary appeared as witnesses against him. He produced Exh. DD. Another judgment, dated 24-2-1966, to show that even though he had been acquitted by the Sessions Court, vide judgment Exh. D. E., but was prosecuted again for the same offence. The learned Sessions Judge found that the P. Ws., had enmity against this accused and also because even though he was a principal party-leader, he had taken no active part in the occurrence, inasmuch as, he was not alleged to have fired any shot therefore acquitted him. 12. From what has been stated above, it will be evident that the prosecution case consists of:-- (a) the evidence of motive; (b) the medical evidence; and (c) the ocular evidence of P. W. 3 Muhammad Saeed, who came in a tonga; saw the occurrence and lodged the F. I. R. Nazir Ahmad (P. W. 4) a Tonga Driver; Muhammad Aslam (P. W. 5) injured, Rehmatullah (P. W. 6) injured, and Safdar Rashid (P. W. 7) Octroi Inspector. 13. Taking up the subject-matter of motive, it is well established on record that there was party faction in the Town Committee of Qila Dedar Singh and that one party was headed by Ch. Muhammad Riaz (P. W. 13) and the other by Mujeeb--Ullah accused. For this, reference may be made to F. I. R., (Exh. P. E.), as proved and adopted by Muhammad Saeed (P. W. 3) which may be read with the deposition of Muhammad Riaz Chairman (P. W. 13), the statement of Nur Hussain (C- W. 1) dated 27-2-1968 which was transferred to the Sessions File as the witness had died in the
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meanwhile. It has also come on record that various complaints were lodged and posters were issued against the employees and officials of the Town Committee and there was criminal litigation in that respect as well. The Point need not be thrashed out any further because it was admitted before us by all the counsel appearing in the case, namely, for the appellants, for the State and for the private complainant that party faction, as stated earlier, did exist in the Town Committee and that Mujeeb-Ullah accused belonged to the party of accused whereas the deceased and P. Ws. 3, 5, 6 and 7 belonged to the party of Ch. Muhammad Riaz, Chairman and Allah Ditta, Secretary. This part of the motive was pressed by the prosecution to establish cause for attack by the accused, whereas, on the other hand, the accused relied upon it as a ground for their false implication in this occurrence, which, according to them, was committed by some unknown assailants. Motive in the instant case, it will thus appear, is a double-edged weapon and we shall have to remain on guard while assessing its evidentiary value for finding the guilt of the accused. 14. Coming to the medical evidence, if we examine injuries Nos. 1 and 2 on the body of the deceased, we note that though the bullet hit the chest from the front but it went out from the back side from a place much below the chest, namely, the kidney. In other words, the missile did not continue in a straight line from the point of entrance but deflected down towards the kidney. Site plan (Exh. P. A.) which was prepared by Muhammad Ibrahim (P. W. 8), at the instance of the Police and Muhammad Saeed (P. W. 3), Nazir Ahmed (P. W. 4) and Safdar Rashid (P. W. 7) shows that the cot of the deceased was in a north-south direction and the deceased was sleeping on it with his face up--wards, head towards north and feet towards the south. The assailant in that plan is shown to be towards the side of the feet to be more exact towards south-east at a distance of 22 feet. A bullet fired from that place in ordinary course, cannot travel downward from chest towards the kidney side. For that type of injury the assailant should have been towards the head of the deceased Le., towards the north side of the cot. It was probably for this reason that the Doctor (P. W. 1) stated that such a fire could not have been made from the south-east (feet-side) of the deceased. No effort was made by the prosecution to demolish this statement of its own witness and no further questions were asked from him. All that was suggested at the time of argument by the learned counsel for the State was that the bullet may have deflected by obstacles of chest bones i.e., ribs, the obliquity with which it struck and the rotary motion on its axis. The general proposition that deflection in the course of a bullet is possible due to the reasons hereinbefore mentioned, cannot be seriously objected to. The following passage from "Ballistic Firearms And Jurisprudence" by R. L. Gupta (1964 Edn.), Chap. XI, "The Direction of Firing" at page 183, under the heading "Introduction" is worth reproduction "An expert of ballistics has to give his opinion regarding the direction from which a shot was fired. Such opinion (f correctly given fixes up to a great extent the crime. The direction from which a shot was fired is ascertained from the position of the wound of entrance and the wound of exit found on the body of the victim. The direction through which the bullet passes in the body is also a factor for the ascertaining of the direction. The position of the wound of entrance marks the part of the body which was at the moment of discharge nearest to the muzzle of the weapon, or rather in a straight line with mathematical precision whether the victim was facing the muzzle or with his back or side to it. . . Speaking in broad, general terms, the missile fired from a firearm has a tendency to continue in a straight line from the point of entrance to the point of lodgement, or to the wound of exit, so that, if the internal wound be straight, this straight line proves accurately the direction in which the barrel of the weapon was pointed when fired. But it must be particularly noted that very frequently this wound is not straight, but curved, the missile being deflected from its original course by slight obstacles, such as bones, etc. From the above rule it follows that if a person be shot in a standing position and a wound be found nearly transverse to the chest, the firearm was certainly fired from about the
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level of the shoulder, a position which may have important bearings as to intent. . When attempting to deduce the position of the assailant from the direction of the wounds, the observer must always keep in mind the possibility of the body having been in an abnormal position at the time of fire; thus a person stooping may be shot in the back with the direction of the wound from above downwards by a person standing in front of him. When a bullet traverses the body it sometimes happens that the two apertures are opposite to each other, although the bullet may not have taken a rectilinear course between them, but may have been variously deflected by the subjacent soft parts . . A bullet which entered at the ankle has been known to make its exist at the knee . . . The deflection of a bullet by slight obstacles has been ascribed partly to the obliquity with which it strikes, and partly to the rotary motion on its axis." In Ramaswa mi v. State ((1951) 2 M L J 630) the shot hit the temple but the bullet buried itself in the neck. Argument was raised that it was extremely impossible that this bullet could have been fired from a revolver by a man some distance away unless the deceased was to a crouching posture. The contention was rejected because evidence existed on the record that the deceased and the assailant were engaged in a struggle at the time the shot was fired and possibility existed that the deceased may have been forced into bent position at which the bullet fired by the assailant entered into his temple at the angle it did. This would show that in that case some evidence existed regarding the posture of the deceased which made the deflection of the course of the bullet possible. Similarly, In re: T. Munirathnam Reddi and another (AIR 1955 Andh. Pra. 118), (which was a converse case), the argument was that if the accused shot the deceased on the side of the abdomen, the bullet could not have passed in a straight line from one side to the other; but should have passed in a direction in which the gun was placed, that is, the wound should not have been in a straight line but in a slanting line. The argument was repelled and it was held that there was no guarantee that the bullet would pass only in a slanting direction, for there might have been the deflection of bullet when it came into contact with the vertebra and the direction of the gun, in the circumstances of the case, could not be fixed with any certainty. We need not multiply the case- law on the subject and would be prepared to accept in general that deflection of the course of a bullet is possible but we cannot refrain from observing that the nature of the injury, its direction and the deposition of the Doctor has created a reasonable doubt in our mind about the place in which, and the position from where, assault is said to have been made and unless there is either some intrinsic evidence establishing the possibility of deflection of the course of the bullet or some other independent corroboration of the evidence of the eye-witnesses, the benefit of doubt shall have to be given to the accused. It may be pointed out that unlike the cases hereinbefore cited, there is no evidence of any struggle of the assailant with the deceased at the spot nor any other circumstance making deflection possible to such an extent that has occurred fin this case. No doubt the area of blow is chest where there are generally ribs-bones and possibility of deflection is there, but whether the deflection could be to such an extent as has occurred herein, was a point which should have been got established from some Expert and the matter being in doubt we would not like to take it any further so as to open discussion. 15. Coming to the ocular evidence, P. W. 3 Muhammad Saeed claims to have arrived from Gujranwala to Qila Didar Singh in the tonga of Muhammad Nazir (Tonga Driver P. W. 4). Muhammad Saeed was a registered bad character and belonged to the hostile camp. Saeed Ahmad accused was a witness against him in a criminal case in which he was convicted. He himself was a witness in a criminal case under section 341, P. P. C. Against Mujeeb-Ullah accused which was registered on the report of his nephew Safdar Rashid (P. W. 7) Octroi Inspector. Mujeeb-- Ullah was acquitted but P. W. 7 again got him challaned for the same offence. He said, he boarded the tonga of Nazir P. W. 4 from Gujranwala but did not remember the fare he had to pay. He stated that he was sitting on the front side whereas P. W. 4 In his statement before the committing Court
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had stated that Muhammad Saeed was sitting on the back seat of the tonga. Muhammad Saeed stated that he hired the tonga from Gandanala In Gujranwala, whereas P. W. 4 stated that it was from a place near Baghbanpura Tonga Stand. It has not been shown that the places mentioned by P. Ws. 3 and 4 from where tonga was hired are one and the same and the finding of the learned Sessions Judge was that these were different. The police station of Qila Dedar Singh is situated towards the south, 1 -- or 2 furlongs from the Octroi Post that is the place of occurrence. The houses of P. Ws. 3 and 4 are towards the southern side of Police Station as deposed to by P. W. 14 Muhammad Siddiq and P. W. 3 himself on page 51, lines 21-22 and P. W. 4 at page 55,…
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