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Petitioner: Da. MUNIR AHMADConvict VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, Ajmal Mian Title: Da. MUNIR AHMADConvict vs THE STATE Case No.: Criminal Appeals Nos. 20 & 21 of 1985 and Criminal Reference No, 2 of 1985, Date of Judgment:1985-08-04 Reported As: PLD 1986 Quetta 26 Result: Order accordingly
JUDGMENT
JUDGMENT ' MIR HAZAR KHAN KHOSO, J.-The Criminal Appeals Nos. 20 and 21 of 1985 and the Criminal Reference No, 2 of 1985 for confirmation of death sentence arise from the same judgment dated 18th June, 1985 of the learned Sessions Judge, Quetta whereby the convicted the appellants Dr. Munir Ahmed son of Noor Ahmed by caste Kasi under section 302, P.P.C. Read with section 114, P. P. C. And Mahmood son of Gul Muhammad by caste Herani for offence under section 302, P. P. C. For causing death of Muhammad Jaffar son of Gul Muhammad and awarded them sentence of death and fine of Rs, 10,000 each or in default of the payment of fine to undergo R. I. For one year. Both these appeals and the death reference are being disposed of by this single judgment. 2. According to the prosecution version on 30-9-1983 at 3-30 p.m. In Killa Kasi at a distance of about four furlongs from City Police Station, Quetta, in a quarrel Muhammad Jaffer received a knife injury on umblicus and was carried to Civil Hospital, Quetta for treatment. On a telephonic message from the Hospital at about 4 p. m. On the same day A. S.-I. Muhammad Tariq rushed to the hospital and recorded the statement of the injured Muhammad Jaffar in the Casualty ward. 3. In his statement injured Muhammad Jaffer (now deceased) disclosed the facts of the incident as follows :- Fard-e-Bayan from Muhammad Jaffar Kasi son of Gul Muhammad Kasi caste Kai, resident of Killa Kasi Road, Quetta. "I with my parents reside in Killa Kasi. I am studying. Today at about 2 p.m. I alongwith my brother Shah Muhammad mistaken for Sher Muhammad) and other friends Dr. Ghulam Muhammad, Ali Muhammad Kasi, Abdul Aziz Kasi, Manzoor Ahmed Kasi and Khan Muhammad Kasi had gone to attend a marriage ceremony in house of a friend at Shaldara Quetta. After attending the marriage,
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about an hour late I returned alongwith my friends. After entering Kasi Killa, alongwith the friends, we were going to our houses. Muhammad Jan Kasi was standing on the way. He gazed at us. Dr. Ghulam Muhammad asked him as to why he was staring ? Whether he would devour us ? Whereupon Muhammad Jan Kasi went away and we went inside the garage of Abdul Aziz. After sometime we came out of the garage for going towards our houses. We saw, Mahmood Sherani and Munir Ahmad Kasi alongwith Muhammad Jan Kasi who were standing there They stopped us. Muhammad Jan asked Dr. Ghulam Muhammad as to what fudge earlier he had made whereupon Dr. Ghulam Muhammad and Muhammad Jan exchanged harsh words. I and other companions tried to separate them. Mahmood took out knife and attacked upon Ghulam Muhammad who swiftly slipped aside and luckily escaped. I, thereafter, initiated to control Mahmood whereupon Munir Armed caught hold of me from my back and Mahmood fully attacked upon me with knife which pierced into the left side of my stomach, The blood came out profusely. On tottering of my head I fell down on the ground. Muhammad Jan Kasi and his friends and Dr. Munir Ahmad gave kicks and fist blows to my companions. Many people whose names I do not know gathered there who saved me and Dr. Ghulam Muhammad from Muhammad Jan and his companions. If those persons had not rescued me and Dr. Ghulam Muhammad from Muhammad Jan and his companions they would have killed me and Ghulam Muhammad. Muhammad Jan alongwith his friends decamped from the scene. People took me in a Rickshaw to Civil Hospital for treatment. I charge Muhammgd Jan Kasi, Mahmood Sherani, Munir Ahmad Kasi for having without any reason quarrelled with us and injured me." 4. Then A. S.-I. Muhammad Tariq sent the statement of Muhammad Jaffar to the City Police Station, Quetta for necessary action. After incorporating the abovesaid statement in 154 of Criminal Procedure Code the S. H. 0. Muhammad Shareef entrusted the investigation of the case to A. S.-I. Muhammad Tariq. He recorded statements of P. Ws. Sher Muhammad, Dr. Ghulam Muhammad, Abdul Aziz, Ali Muhammad, Manzoor Ahmad in the Civil Hospital, Quetta. He secured blood-stained shirt of Muhammad Jaffar. He visited the site and prepared its sketch. On 30-10-19143 Malik Zakarya Kasi ex-Mayor of Municipal Corporation Quetta produced Dr. Munir Ahmad, Mahmood and Muhammad Jan at the Police Station. They were arrested. Muhammad Jaffer succumbed to the injury on 8.10- 1983 at 12.30 p.m. In the Civil Hospital, Quetta. The offence was changed from 307/34, P.P.C. To 302/34, P.P.C. On receiving information regarding death of Muhammad Jaffer, the A.S.-I. Went to the Civil Hospital, Quetta. He held inquest on his dead body ; and requested the Police Surgeon for its post-mortem and report. On 10-10-1983 the appellant Mahmood volunteered to produce the crime weapon which however was not recovered. On 5-11-1983 S.H.O. Muhammad Sharif filed interim challan of the case for offence under section 302/34, P. P. C. 5. The case came for trial before the Court of the learned Sessions Judge, Quetta who on 2-4-1984 framed charge under section 302/34, P.P.C. Against the appellants Munir Ahmad, Mahmood Khan and Muhammad Jan (acquitted now) who did not plead guilty to it. 6. During proceedings of the case it was projected that the place of incident i. e. The Killa Kasi falls outside the Municipal Limits of Quetta where Criminal Law (Special Provisions) Ordinance II of 1968 is in force which ousted jurisdiction of ordinary Courts and the offence being scheduled one was triable under the Ordinance and the Sessions Court had no jurisdiction. The learned Sessions Judge on 19-2-1985 turned down the objection and proceeded with the case. His order was challenged in a revision petition before this Court. The learned counsel for the appellants did not press the Revision Petition and desired disposal of the appeals and reference on merits hence his revision petition was dismissed accordingly. 7. In support of its case the prosecution has examined P. W. 1 Sher Muhammad, Exh. 2, P. W. 2 All Muhammad Exh. 3, P. W. 3, Dr. Ghulam Muhammad Exh. 4, P.W. 4 Dr. Arbab Muhammad Yousuf Exh.
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7, P. W. 5 S. H. 0. Muhammad Sharif and P. W. 6 Muhammad Tariq A.S.I. Vide his statement Exh. 5 the District Attorney dropped P. Ws. Abdul Aziz and Manzoor Ahmed on the ground that they were won over and not willing to support the prosecution. On 16-4-1985 an application on behalf of the appellants was moved for tendering the abovesaid two witnesses for cross-examination ; but it was rejected on 8-5-1985. Their request for examining Abdul Aziz and Manzoor Ahrnad as Court witnesses under section 540, Cr. P. C. Was also declined. 8. On conclusion of the prosecution evidence, the appellants were examined on 16-5-1985. In their 342, Cr. P. C. Statements they totally denied the allegations brought by the prosecution against them but however, led no evidence in defence. In addition to their 342, Cr. P. C. Statements they also filed their writren statements. On their request the learned Sessions Judge inspected the site on 1-6-1985. The inspection notes prepared by the learned Sessions Judge and the site plan prepared by the defence have been placed on record as Exhs. 20 and 21 respectively. The learned Sessions Judge on 18th June, 1985 found the appellants Munir Ahmed and Mahinood Khan guilty for the offence and sentenced them to death ; but however acquitted their companion Muhammad Jan by extending benefit of doubt. 9. Being aggrieved and dissatisfied against their conviction and sentences the appellants have come in appeal before this Court. The learned Sessions Judge under the provisions of section 374 of the Cr. P.C. Has sent the case for the confirmation of death sentences. 10. The learned counsel Mr. Yahya Bakhtiar assisted by Messrs Ehsanul Haq and Mr. S.A.M. Qadri appeared for the appellants and Mr. Muhammad Nawaz Ahmad Advocate assisted by Mr. Raja Muhammad Afsar Advocate for the complainant, represented the Advocate-General. With their dexterous assistance we have perused the record of the case and gone through the entire evidence adduced by the prosecution and the written arguments filed before the trial Court. 11. The learned Sessions Judge has categorised the prosecution evidence as under :- (i) Medical evidence, (ii) the dying declaration of deceased Muhammad Jaffar, (iii) motive, and (iv) ocular testimony of P. Ws. Sher Muhammad, Ali Muhammad and Dr. Ghulam Muhammad. 12. Dr. Muhammad Yousuf P. W. 4 Exh. 7 has held autopsy on the dead body of deceased Muhammad Jaffar. He found the following injuries on his person :- External : Stab wound on the left side of abdomen below and to the left of umblicus about 3' in length (wound is already stitched). Internal.-I found as under on interal examination : (1) Paricardial and heart :-Both chambers of heart full of blood. (2) The peritonial cavity full of foul smelling fluid (pus) stitched rent in mesentry. (3) Two tent in illium which are already stitched. (4) Bladder-Empty. (5) The rest of the organs were normal. ' In my opinion the cause of death of Jaffar Kasi was generalised peritonitus (Resulting from stab on abdomen and rents in illium) shock and death. Probable time that elapsed (a) between injury and death-seven days and nineteen hours, (b) between death and postmortem-6 hours. I issued the certificate which I produce Exh. P/B which is correct and signed by me. The injuries on the person of the deceased were sufficient to cause death in the ordinary course of nature." 13. The dying declaration has been reproduced in proceeding para. 3 of this judgment. 14. The ocular testimony came from the mouth of P. W. 1 Sher Muhammad and P.W. 2 All Muhammad and Dr. Ghulam Muhammad. Their examination-in-chiefs are reproduced in verbatim
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:- 15. P. W. 1 Sher Muhammad : "On 30-9-1983, on Friday at 2.00 p. Rn. 1, Dr. Ghulam Muhammad, Muhammad Jaffar, Ali Muhamad, Manzoor Ahmad and Aziz Ahmad had gone to attend a marriage in Shaldara, Quetta. After attending the marriage we were returning to our house, at Kansi Road Shaldara, Muhammad Jan Kansi was sitting and he was staring at Ghulam Muhammad Kansi. Ghulam Muhammad Kansi asked him why he was staring at them. Muhammad Jan Kansi replied that he will see them. We came to our house and sat in the Garage of Aziz. After some times, we went out of the garage and we found, Muhammad Jan Kansi, Mahmood Sherani and Munir Ahmad Kansi standing at a distance of about 30 feet from the garage. Muhammad Jan Kansi told Dr. Ghulam Muhammad that he had misbehaved near the place of marriage with him. Mahmood Sherani attacked Ghulam Muhammad with a knife while Dr. Ghulam Muhammad shifted to one side. Muhammad Jaffar tried to catch Mahmood Sherani. Munir Ahmad caught Muhammad Jaffar from behind. Then Mahmood Khan Sherani gave a blow to Muhammad Jaffar with knife on his stomach. He started bleeding from the wound. Many persons collected there and intervened. Munir Ahmad, Muhammad Jan and Mahmood Khan Sherani attacked me, Dr. Ghulam Muhammad, Aziz Ahmad, Manzoor Ahmad and Ali Muhammad with knife `lathis' but we were saved. Muhammad Jan and Munir Ahmad had lathis with them, The accused in Court are the same who were known to me before. We took the injured Muhammad Jaffer to hospital in a rickshaw while the accused escaped from there. The Investigating Officer secured the shirt of Muhammad Jaffar which had a cut of 2 and quarter inches which was also blood-stained. (Note :-Sealed parcel is opened in Court. I see the shirt Art. P. 2 in Court is the same. The parcel was prepared in my presence and I had signed on it. I see my signatures on the parcel in Court. A Memo. Of recovery was prepared in my presence which is signed by me and Faiz Muhammad. I produce it as Exh. P.A. Which is the same)." 16. P. W. Ali Muhammad : "On 30-9-1983, on Friday at about 2 p. m. I was standing in front of Aziz garage in Kansi Killa. Doctor Ghulam Muhammad, Sher Ahmad. Manzoor Ahmad, Abdul Aziz and deceased Muhammad Jaffar were standing with me. On return from a marriage, we had gone to take tea at Aziz garage when we came out of the garage, we found Munir Ahmad, Muhammad Jan and Mahmood standing there. Muhammad Jan stopped Doctor Ghulam Muhammad and asked him as to what he had said. They exchanged harsh. Words. Mahmood took out a knife and stabbed Doctor Ghulam Muhammad, but Ghulam Muhammad was saved. Muhammad Jaffer came forward to intervene, Munir Ahmad caught him from behind. Mahmood Ahmad gave a blow with knife on left side of stomach to Muhammad Jaffar. Muhammad Jan and Munir gave fist blows to me. A crowd collected there and hence I cannot say what happened thereafter. Munir, Muhammad Jan and Mahmood ran away from there due to crowd. The accused present in Court are the same namely Munir Ahmad, Muhammad Jan and Mahmood. Muhammad Jaffar injured was taken to hospital in rickshaw by Doctor Ghulam Muhammad and Sher Ahmad. When we were returning from marriage and we reached at Shaldara, Muhammad Jan was standing there and he was staring me, Ghulam Muhammad, Muhammad Jaffar, Abdul Aziz, Manzoor Ahmad and Sher Ahmad. Ghulam Muhammad went to him and asked him, why he was staring him and whether he will eat them. Then Muhammad Jan had gone away from there. I cannot say why Muhammad Jan was staring at us." 17. P. W. 3 Dr. Ghulam Muhammad : "About one year ago, it was Friday. I, Sher Muhammad Jaffer, in all four or five persons had gone to attend a marriage in Shaldara. While we were returning from there at Shaldara Road I and Muhammad Jan had exchanged hot words. Muhammad Jan was staring at me and on this we
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had exchanged hot words. Then we all came to the garage of Aziz. We were taking tea in the garage. We came out of the garage and I saw a crowd collected there and the quarrel had started there. About 40/50 persons were collected there. 1 cannot give the names of the persons who had started the quarrel, Mabmood had given knife blows to Jaffar in my presence and in presence of the persons. I and probably Sher Muhammad had taken injured Jaffar to hospital, probably in rickshaw. Accused Muhammad Jan and Mahmood are present in Court, and they are the same persons who had quarrelled." 18. P. W. S Muhammad Sharif, S.H.O. Has stated : "From 27-7.1983, I am working as S.H.O. City Police Station, Quetta. On 30-9-1983, I received Fard Bayan of Muhammad Jaffar Kasi son of Gul Muhammad caste Kasi from Muhammad Tariq S.1.P. I produce that statement Exh. P. C. On the basis of this statement, I incorporated it 154, Cr. P. C. Book. I produce F. I. R. Exh. P.C. Is signed by me. Muhammad Tariq was deputed to investigate the case. On 6-11-1983, he gave me the police papers after completing the investigation. On the same date I prepared challan against the acccused (interim) and sent it up before the Court. (Note :-Examination-in-chief reserved for want of report of Chemical Examiner)." Re-called and re-affirmed. Examination-in-chief continued to District Attorney. "On 19-5-1985 I received the report of the Chemical Analyser from the Prosecuting Branch. I sent up the complete challan against the accused No, 250-A on 19-5-1985. I produce the report of the Chemical Analyser, Exh. P/E is the same. O. The facts regarding the investigation carried out by P. W. 6 Muhammad Tariq have already been given in detail in para. 4 of this judgment. It is needless to reproduce or repeat the same again. 20. Mr. Yahya Bakhtiar, the learned counsel for the appellants in support of his appeals has raised the following grounds :- (1) Classification of prosecution evidence was erroneous. (2) Finding on point No, 1 regarding death of Jaffar deceased by knife injury is erroneous. (3) Motive for offence not proved. It adversely reflects upon the prosecution case. (4) Dying declaration of deceased Jaffar false, fabricated not corroborated by independent evidence hence unreliable. (5) Eye-witnesses related-interested partisan-their evidence not corroborated by independent evidence hence unreliable. (6) Tainted ocular testimony could not corroborate tainted dying declaration and vice versa. (7) Uninterested-independent evidence though available, neither examined nor produced. (8) Independent eye-witnesses Manzoor Ahmad and Aziz Ahmad on. Fallacious grounds dropped by prosecution as won over and erroneously neither examined as prosecution witnesses nor Court witnesses adverse inference against prosecution. (9) inadmissible evidence regarding recovery of knife considered. (10) Blood not found from the Vardar, scene of offence not proved. (11) Material contradictions in prosecution evidence-renders it, fabricated, false and un-reliable. (12) Evidence of police witness A.S.I. Muhammad Tariq on recording dying declaration of deceased Jaffar untroworth unreliable. (13) Appellants entitled to benefit of doubt. (14) Complainant party aggressor. (15) Divisibility of evidence on principles of falsus in uno falsus in omnibus. 21. On the other hand repudiating the contentions raised by the learned counsel for the appe lants Mr. Muhammad Nawaz Ahmad Advocate for the State and Mr. Raja Munammad Afsar Advocate for the complainant contended that : (i) Death of deceased Jaffar proved.
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(ii) Motive proved. (iii) Dying declaration recorded with promptitude-true-genuine corroborated sufficient for conviction. (iv) Eye witnesses-natural of locality-disinterested-truthful-mere their relationship with deceased for discarding them not sufficient-. Parties residing in same locality very well-know to each other. No mistaken identity-no previous enmity broad daylight incident-no reason to leave loose real culprits and rope innocent persons- - their evidence corroborated though corroboration not necessary. (v) Tendency in people avoiding to appear as witness, even Manzoor Ahmad and Abdul Aziz declined-not examined-prosecution not bound to examine each and every person. No adverse inference to be drawn. (vi) Absence of blood on spot explained. (vii) No material contradictions on material points-minor contradictions natural. (viii) Police personnel as a good witness as any other person. No reason for A. S. I. P. Muhammad Tariq to falsely rope the appellants. (ix) Evidence unambiguous. (x)Point of aggression not involved. (xi) Sufficient evidence against both the appellants. 22. At the outset Mr. Yahya Bakhtiar the learned counsel for the appellants seriously criticized the classification of the prosecution evidence namely, motive, the dying declaration, the ocular testimony and the Medical evidence as inducted by the learned Sessions Judge. He submitted that the above-said pieces of evidence having not been substantially proved by the prosecution ; its classification was based on illusory assertion. His contention as a matter of fact has pivotal nexus with the issues document hence would be dealt with and discussed at appropriate place and till hereinafter. 23. The next grievance of the learned counsel for appellants was the affirmative finding of the learned Judge on cause of death of Muhammad Jaffar with knife. He submitted that his finding was based on no evidence available on the record but was misreading of facts. He pointed out that defence had not admitted his death by knife. There was also no concession on the part of the defence to have not disputed the cause of death of Muhammad Jaffar. He emphasised that in cross-examination of the medical officer they had challenged it. In fact the observation of the learned Judge that the cause of death of deceased Muhammad Jaffar was neither denied nor disputed by defence has disturbed him. To confirm his stand he drew our attention to his written arguments filed before the trial Court where he said that the injury in the ordinary course of nature was not sufficient to cause death. He said that in fact the cause of death of Muhammad Jaffar was due to negligence on the part of doctors which resulted in peritonitis condition, ultimately in his death. 24. The learned counsel for respondent strongly repudiated his contention. 25. It seems that the appellants were not serious in raising this ground. They have taken it very lightly in memo. Of their appeal. In ground 'B' they have said that it made no difference for them whether Muhammad Jaffar died as a result of injury or not as they had denied to have inflicted injury on his person. Dr. Muhammad Yousuf in his statement before the trial Court has deposed that the injuries on the person of deceased were sufficient to cause his death in the ordinary course of nature. No other reasons has been shown for his death. It is of no consequence to assert that if the injured had received proper treatment his death would have been avoided and he had survived or that due to negligence of doctors the injured met his death. The hypothetical conjectures and surmises do not replace facts actually proved. Suppositions have no sanction in law. Likewise in presence of definite opinion of the medical officer no different view could be
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imported on mere presumptions. In result the finding of the learned Sessions Judge that deceased Jaffar met unnatural death by knife injury is not unexceptional one. 26. On point of motive the learned counsel contended that once the prosecution sets up a motive which has to be established by it otherwise it would adversely affect the veracity of the prosecution case as a whole. According to the learned counsel initially the motive advanced by the prosecution was unusual staring by acquitted accused Muhammad Jan at P.W. Dr. Gul Muhammad who in result rebuked him by expressing that if he would eat them whereupon he challenged him that he would see them. It was grievance of the learned counsel that when the principal accused Muhammgd Jan who had actually thrown challenge to Gul Muhammad has been acquitted on account of benefit of doubt by the learned Judge, it ought to have been extended same to the both appellants. But on the contrary the learned Sessions Judge fished out support from the ocular testimony and motive, which he-found out from the written statement of Jan Muhammad. ' On the other hand the learned counsel for the respondent have vehemently disputed his contention. 27. It may be pointed out that the learned Sessions Judge has not rejected the motive leading to the unfortunate incident but felt that the common intention of all accused for the commission of murder of deceased Muhammad Jaffar was missing. The two incidents i,e, the first one of staring and the second one of murderous assault seems are being confused together. In fact the learned Sessions Judge has dealt with the above facts separately. In such events it cannot be said with certainty that the motive culminating in commission of murder was turned down by the learned Sessions Judge. A motive is that which moves or induces to act in a certain way. Its adequacy or inadequacy is of little importance. Some times atrocious crimes have been committed for very slight motive on account of impulses. In the instant case we feel that some false vanity must have resulted in the serious consequences but the same has been concealed from the Court. However failure to discover motive for an offence does not signify its nonexistence, and failure to produce evidence of motive though it may constitute the weakness in the whole body of proof but is not fatal as in law. Proof of motive is not more necessary than the proof of any other relevant fact. Where there is a clear evidence that a person has committed an offence it is immaterial that no motive-is proved. 28. Then the learned counsel for the appellants seriously attacked the dying declaration of deceased Muhammad Jaffar. He pointed out intrinsic and extrinsic infirmities rendering it unreliable. Pointing out the intrinsic falsities the learned counsel submitted that the deceased Muhammad Jaffar resided on Kasi Road whereas the statement discloses that he resided in Killa Kasi. In statement of P. W. Sher Muhammad has been shown as his brother Shah Muhammad. His true brother Khan Muhammad as Khan Muhammad only. The learned counsel reiterated that such mistakes could have never been committed by deceased Muhammad Jaffar if actually his statement had been recorded by the prosecution witness A.S.-I. Muhammad Tar iq . 29. The learned counsel pointed out the following extrinsic infirmities : (i) That the witnesses contradict in time and place of its recording. (ii) Before recording the dying declaration the medical officer was not asked if the injured was in a condition or state of mind to make the dying declaration. (iii) It was neither attested by a Magistrate nor by the medical officer. (iv) It was recorded in the hospital where eye-witnesses…
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