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Petitioner: ISRAR GUL VS Respondent: THE STATE
P L D 1963 (W
P L D 1963 (W. P.) Peshawar 124
Before Sajjad Ahmad Jan and Faizullah Khan, JJ
ISRAR GUL‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 17 of 1963, decided on 17th April 1963.
Criminal trial‑Appreciation of evidence‑Some prosecution witnesses distorting facts and suppressing truth‑Cannot discredit prosecution case if it be otherwise supported by trustworthy evidence-----Statements of such witnesses cannot bind prosecution although they may not have beers declared hostile.
Sh. Abdul Majid for Appellant.
Sher Bahadur, Additional Advocate‑General for Respondent.
Date of hearing : 17th April 1963.
JUDGMENT
SAJJAD AHMAD JAN, J.‑---Israr Gul, aged about 29 years, has been convicted by the learned Additional Sessions Judge, Peshawar (Mr. Sher Bahadur Khan) for the murder of Hakim Gul and sentenced to death. In addition, he has been found guilty under section 19 (f) of the Arms Act for possessing an unlicensed revolver and three live cartridges for which he has been sentenced to two years' rigorous imprisonment and a fine of Rs. 200, or in default to suffer six months' rigorous imprisonment. The unlicensed revolver is the alleged weapon of offence in the murder crime. Israr Gul has appealed and his sentence of death has also been referred to us for confirmation under section 374 of the Criminal Procedure Code.
2. Hakim Gul deceased was the uncle of the appellant, Asrar Gul, and the motive for the murder was stated to be that Hakim Gul had, in the year 1929, murdered the father of the appellant for which he was tried along with certain others by a Council of Elders, but was acquitted.
3. The occurrence took place at peshin time on the 5th of June 1962 in the village mosque of Anar China, when the con gregational peshin prayers were in progress led by the Imam Ghulam Muhammad (Addl. P.W.2). In the very first rakat, when the congregation was in raku`, the deceased was fired at thrice, with the result as found in post‑mortem examination, that the deceased sustained three entrance wounds, the first opposite the inner end of the spine of the right scapula, the second to the left of the 9th theracic spine on the back of the chest, and the third, 3" below and " external to the right nipple. The last mentioned bore charring marks around it. The deceased died at the spot instantaneously.
4. According to the prosecution case, the appellant, who was marked out as the culprit, immediately after the occurrence was surrounded by some of the members of the congregation present in the mosque who locked him in a room therein. P. W. Abdul Halim, the Lambardar of the village, arrived soon after and he took into possession the revolver along with the two empties and three live cartridges which were with the appellant. The occurrence was reported by P. W. Hamid Gul at Hangu Police Station at 19‑20 hours the same evening. In the first information report the appellant was charged for the murder of Hakim Gul and the fact was stated therein that the appellant had been sur rounded by some of the worshippers in the mosque and confined in a room. Hamid Gul further stated that besides others, he, Unab Gul and Mahmud were present in the mosque at the time of the occurrence. P. W. Abdul Halim, taking the appellant with him, had also accompanied Hamid Gul to the police station and his statement was incorporated in the first information report. He produced the appellant before the police, the revolver and the live cartridges as well as the empties which had been surrendered to him by the appellant.
5. It may be noted here that the revolver and a piece of spent bullet which was recovered from the dead body of the deceased at the time of his autopsy were sent to P. W. 3 Mr. Salim Khan, Arms Expert, Peshawar, for his examination to find out if the bullet was fired from the revolver in question. His observations were that the markings on the bullet were insufficient to furnish a clue. The examination of the empties recovered may have possibly led to a more tangible result in the resolution of this point, but the empties were not sent to the Arms Expert, and there is no explanation from the prosecution why this was not done.
6. During the investigation, in fact on the very next day of the occurrence, viz., on the 6th of June 1962, the appellant made a confessional statement (Exh. P. L.) before Mr. Bahadur Sher Khan (P. W. 2), a Magistrate 1st Class, Hangu, in which he candidly admitted that he had murdered the deceased in order to wreak vengeance on him for the murder of his father. He went back on this statement before the committing Magistrate as also at the trial.
7. None of the prosecution witnesses claimed to have actually seen the appellant firing at the deceased and this rescues the prosecution case from headless exaggerations. The witnesses, who have appeared at the trial, were themselves engaged in offering. prayers at the time which were interrupted as the three shots on the deceased rang out in quick succession. The firing was over before they could see who did it. However, the main incriminating circumstance in this connection against the appel lant is that immediately after the commission of the murder he was surrounded by some of the worshippers and he was locked inside a room, wherefrom Lambardar P. W. Abdul Halim relieved him of the revolver and the cartridges which were in his posses sion. This version of the prosecution case was supported at the trial in its entirety by P. W. 4 Abdul Halim, P. W: 6 Unab Gul and Addl. P. W. 2 Ghulam Muhammad. However, P. W. 5 Hamid Gul and P. W. 7 Mahmud have struck a different note, denying that the appellant was seen by them in the mosque immediately after the occurrence and surrounded by the people. P. W. Hamid Gul stated as follows :‑
I did not see Asrar Gul at the spot after the prayers were broken. I saw him for the first time in the mosque after my return from the house of the deceased.
P. W. Mahmud on the same point in reply to a Court question stated thus :‑
I did not see the accused at the spot after the prayer. I did not see him being taken inside the kotha of the mosque. I saw the accused for the first time in the police station.
Relying on this discordant note of the two witnesses, namely, Hamid Gul and Mahmud, the learned counsel for the appellant argued before us that the guilt of the appellant is thrown into doubt, as one set of the prosecution witnesses directly contradicts the version given by the other, that the accused was apprehended immediately after the occurrence, almost red‑handed. This dis crepancy in the two versions from the prosecution side naturally poses a question as to which one should be preferred, particularly as the matter on which the versions differ furnishes the most so id factor in determining the guilt or innocence of the appellant.
8. The situation thus presented in this case is not uncommon in the trial of criminal cases or of the administration of justice in this country, where sometimes the Courts are confronted with a divided house from the prosecution side, some witnesses support ing the prosecution case in its entirety and the others partially so, and still others not at all, in an effort, direct or indirect, to destroy the prosecution case. In such circumstances, a greater analytical effort is needed by the Courts to discover the truth, to sift the grain from the chaff. The effort turns on the assessment and appreciation of the evidence in the case as a whole, accepting the statements of those witnesses as true which have an inherent merit of veracity, in accord with the proved circumstances of the case, furnishing a corroborative value, and rejecting those which lack the ring of truth and bear marks of tainted testimony. To accept the view that where some witnesses from the prosecution let down the prosecution case by distortion of facts or suppres sion of truth, wholly or in part, the whole of the prosecution case must fall down as a house of cards would amount to giving a powerful lever to the defence to be quite freely employed to win over some prosecution witness to seal the doom of the prosecu tion case. The best approach in such situations is to reject the discredited witness but not to discredit the prosecution case if it is otherwise supported by trustworthy evidence. Again, it is erroneous to consider that the statement of a prosecution witness in spite of its proved falsity binds the prosecution because he comes from the prosecution camp unless he is declared hostile to show that he has deserted the prosecution. If the statement of such a witness is false in contrast to the other evidence in the case which is true, it has to be ignored without leaving any effect on the incidents of the prosecution case as borne out by dependable and trustworthy evidence. Several salient facts in the each prosecution case reveal themselves to supply tests for checking the veracity of the falsity of the statements of the witnesses. In the present case, a reference to the statements made by the appellant himself before the committing Magistrate and at the trial would show that the two witnesses, namely, Hamid Gul and Mahmud, have made a futile attempt to damage the prosecution case by suppressing the factum of the presence of the accused‑appellant in the mosque at the time of the occurrence and his apprehension by persons immediately thereafter. The appellant shifted his stand from time to time but he did not deny at any time his presence in the mosque at the time of the murder of his uncle. Before the committing Magistrate he stated as follows :‑
At the time of occurrence I was also offering my prayers in the same mosque with the deceased when I heard shots fired and discovered that my uncle, the deceased, had been the victim. I could not discover as to who had fired at him, but the person firing had disappeared, throwing the revolver which was loaded in the mosque. I got hold of the revolver and brought it to the Police Station, Hangu, to lodge a report. At that time, f was intoxicated because I had taken charas and Mang and did not know as to what sort of report was written in the police station. I am still looking for the accused‑culprit and when he is discovered I will let the Court know. I am innocent and should not be proceeded against.
At the trial, when asked whether his statement as recorded by the committing Magistrate is correct, he replied as follows :‑
Yes, save that it is wrongly recorded in my statement that I got hold of the revolver thrown by the person who had fired at my uncle in the mosque and that I was intoxicated as I had taken charas and bhang at the time I came to the police station where the F. I. R. was lodged. The rest of the statement is correct.
It would appear from these statements that the appellant admitted his presence in the mosque at the time of the occurrence and if he was not himself the culprit of the murder crime, he was the most conspicuous person in the gathering as the chief mourner of his uncle's murder, and the persons present there could not have possibly missed his presence. It is obvious, therefore, that Hamid Gul and Mahmud P. Ws. have outpaced the appellant himself in trying to show that he was not present in the mosque at the time of murder while the appellant himself admits that he was. The evidence of P. Ws. Hamid Gul and Mahmud can, therefore, be easily discarded as untrue.
9. To revert to the rest of the prosecution evidence against the appellant we consider that it is overwhelmingly strong to prove his guilt beyond any reasonable doubt. The professional statement Exh. P. L. made by him and proved by P. W. 2 Mr. Bahadur Sher Khan to have been voluntarily made by the appellant, although retracted by him at the inquiry and at the trial, forms an important link in the chain of the prosecution evidence. There appears to us no reason to reject it as involuntary or untrue. It finds a strong corroboration from the evidence of P. Ws., Abdul Halim, Unab Gul and Ghulam Muhammad. All the three are absolutely independent and disinterested witnesses. The first one is the Lambardar of the village whose testimony finds support from the circumstance, as stated by him, that the appellant was in fact produced by him before the police along with the alleged weapons of offence and the live and the spent ammuni tion. He has also deposed that the appellant had admitted his guilt before him. No valid criticism has been offered against the testimony of the other two either, Unab Gul and Ghulam Muhammad, and we feel that it is quite safe to rely on the testimony of all the three of them which is remarkably free from any type of exaggeration. At the trial, the appellant was particularly asked why P. Ws. Abdul Halim and Mullah Ghulam Muhammad had deposed against him His reply was "I do not know why Ghulam Muhammad deposed against me but as regards Malik Abdul Halim he has given evidence against me at the instance of Alif Jan, daughter of the deceased, who has promised to marry him in case he gives evidence against me." We can, without any hesitation, dismiss this objection to the testimony of Abdul Halim as a piece of imaginative fit.
10. After a careful appreciation of the evidence on the record we feel that the guilt of the appellant is proved on both the counts without any reasonable doubt. His wanton and calculated act of murdering his uncle in the mosque just when he was offering his prayers does not deserve any leniency, not even for the reason which he had advanced in his confessional statement (Exh. P. L.) that he had killed his uncle to avenge his father's murder because he considered that his uncle (the deceased) had murdered his father. We dismiss his appeal, uphold his convictions and sentences as recorded by the trial Judge. The sentence of death is confirmed.
K. B. A./A. H. Appeal dismissed.