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Petitioner: TAJOO AND ANOTHER VS Respondent: THE STATE
P L D 1963 (W
P L D 1963 (W. P.) Karachi 615
Before A. R. Khan and Feroze Nana Ghulamally, JJ
TAJOO AND ANOTHER-Appellants
versus
THE STATE-Respondent
Confirmation Case No. 47 of 1962/Criminal Appeal No. 234 of 1962, decided on 22nd January 1962.
Penal Code (XLV of 1860), S. 302-Prosecution case resting on oral evidence of eye-witnesses all interested and unreliable-- Conviction set aside.
Muhammad Hayat Junejo for Appellants.
Zahoorul Haque for A. A.-G. for Respondent.
Date of hearing: 22nd January 1962.
JUDGMENT
FEROZE NANA GHULAMALLY, J.-The appellants, who are brothers, have been convicted by the learned Additional Sessions Judge, Nawabsbah, under section 302 read with section 34, P. P. C. and each of them sentenced to death by hanging and to a fine of Rs. 100, in default to undergo R. I. for six months. They have also been convicted under section 19-B of the Arms Act, and each sentenced to R. I. for one year. The matter has come up to us in confirmation of their death sentences. They have also appealed against their convictions. This judgment will, therefore, dispose of both the confirmation matter and the appeal.
The prosecution case is that the appellants were absconding and were involved in several cases of dacoity, murders, abduction of women of various Police Stations in the district of Nawabshah. On the 2nd of June 1956, P. W. Muhammad Hassan Zardari, brother of the deceased Piaro, obtained some information of the movements of the appellants and the absconding accused Moulabux, their cousin, that they were seen going armed towards Ghulam Muhammad's village. Muhammad Hassan apprehended some drastic action on the part of the appellants on account of the previous enmity between the parties. This enmity was based on the suspicion that the deceased Piaro had enticed one Mst. Izat, wife of Sidik, brother of the absconding Moulabux and the appellant Taju. It is alleged that the appellants and Moulabux had threatened the deceased and his relatives with vengeance. Muhammad Hassan hastened to the Qazi Ahmed Police Station and contacted S. H. O., Ghulam Rasul. A police party was formed and the S. H. O. accompanied Muhammad Hassan to Ghulam Muhammad village reaching there at about 6-30 p.m. the same evening and found that the deceased Piaro and one Darya Khan had been shot dead. Hamzo Zardari, another brother of the deceased, was at the scene. He lodged a report with the S. H. O. stating that the deceased Piaro ran a provision shop in the village, where he came to work in the morning from his village about a mile away and returned home every evening. At about 2 p.m. that day, Hamzo had come to the shop of Ghulam Rasul to purchase some provisions. One Darya Khan and his mother Nazan were in Haji Piaro's shop purchasing some provisions. Suddenly they heard the sound of gunshot and the cry of the deceased Piaro of murder. Darya Khan ran out of the shop raising cries. Hamzo and Rasul came out of Ghulam Rasul's shop and saw the appellants and Moulabux armed with guns firing at Haji Piaro in his shop. Darya Khan raised cries of murder and he was shot dead and fell outside Piaro's shop. Ghulam Rasul and others on account of fear, ran outside the village and took shelter. After a while, Mst. Nazan, who was sitting in Piaro's shop, raised cries. Ghulam Rasul and others, therefore, returned to the village and saw Darya Khan lying in front of the shop with three gunshot injuries, two on his thigh and one on his right eye. Piaro was lying dead in his shop with five gunshot injuries on his chest, right eye, shoulder and left arm. The first report also mentioned the enmity with the appellants over Mst. Izat, and the suspicions of the appellants that Piaro was illicit with her, and ;that Piaro had been murdered on this account. Darya Khan, according to the First Report, had been killed as he was present in the shop at the time of the incident, and to prevent him testifying as an eye witness against the appellants. The first report also stated that the appellants were known to the witnesses as they were neighbours,
3. The S. H. O. then prepared a mashirnama of the scene in the presence of mashirs. He noticed three foot-prints in shod feet of three persons outside Piaro's shop. Piaro and Darya Khan were lying dead in pools of blood. Six empty .12 bore cartridges were secured from the scene. The shod prints were pointed out to the tracker, Nawab, who had accompanied the police party. Inquest reports were prepared and the bodies sent for post-mortem examination to Sakrand. Statements of Muhammad Hassan, Ghulam Rasul, Mst. Nazan and Haji Ghulam Muhammad were recorded. An attempt was made to track the foot-prints. None of the miscreants were secured until about four years later, when appellant Muhammad surrendered before the then S. P. Nawabshah, Mr. Nazir Ahmed, on the 9th of February 1960, and appellant Taju on the 24th of April 1960. It is contended that the appellants voluntarily surrendered in consequence of the influence of the local Zamindars, and Pir Pagaro. Moulabux accused is still absconding, and the appellants were tried by the learned Additional Sessions Judge, Nawabshah, and convicted as already stated.
4. The defence of both the appellants was a complete denial of the prosecution circumstances against them. The appellants denied that they had together with their cousin Moulabux, shot dead Piaro and Darya Khan on the day of the incident in Pir Ghulam Muhammad's village, or that they had been absconding since then. They also denied that tracker Nawab had picked out their shod foot-prints in the Sukkur jail, and contended that the prosecution witnesses were deposing against them through enmity. Appellant Taju produced a certified copy of a judgment of the learned Joint Sub-Judge and F. C. Magistrate in Case No. 310 of 1954 where he was discharged under section 253, Cr. P. C. he also produced a challan of two earlier cases which are Exhs. 43 and 44 in the case, to indicate that the prosecution witness Hamzo was a witness in an F. I. R. lodged against him on the 26th of February 1961, of the Kazi Ahmed Police Station. According to appellant Muhammad, Mst. Izat was not his brother's wife, nor had she been enticed by the deceased Piaro. He contended that Nawab Peri was already familiar with their foot-prints as he belonged to their village, and stated that the prosecution witnesses were deposing against him for the same reason as they were deposing against his brother, appellant Taju. He produced a judgment in Case No. 12 of 1962 of the same learned Additional Sessions Judge Nawabshah, dated the 24th of April 1962, in which both the appellants had been charged with an offence punishable under section 307 read with section 34 for having fired at a constable Ali Akbar Shah with a rifle, and in which the trial Court held that the prosecution had failed to bring home the charge against the appellants and had, in consequence, acquitted them.
5. The learned Additional Sessions Judge framed four points for determination, and came to a finding in the affirmative, holding that Piaro and Darya Khan had died as a result of the injuries suffered by them, that both the appellants in furtherance of their common intention, accompanied by the absconding accused Moulabux, had fired and killed both of them, and that they were all armed with guns at the time for which they possessed no licence.
6. We have heard Mr. Hayat Junejo for the appellants and Mr. Zahur-ul Haq for the State. We find on a perusal of the judgment of the trial Court that on the following circumstances, the finding was finally concluded against the appellants, and these are
(1) The motive,
(2) The ocular evidence in regard to incident, namely, that of Haji Hamzo, Exh. 5, Mst. Nazan, Exh. 7, Haji Ghulam Rasul, Exh. 8, and Haji Gul Muhammad, Exh. 14.
(3) The circumstance, which is described as corroborative evidence of P. W. Muhammad Hassan, and
(4) The circumstantial evidence consisting of the appellants absconding for about four years, and of the foot-print test.
7. Mr. Junejo has urged- before us that the conviction of the appellants cannot be upheld on the ground that this incident was not witnessed by any of the P. Ws., that the eye-witnesses examined on behalf of the prosecution were all interested and unreliable, and that the prosecution evidence, in any case, appeared to have been made up at the scene after the arrival of the police party. Their convictions have also been assailed on the ground of previous admitted enmity between the parties, and, therefore, prejudice of the prosecution witnesses against the appellants, also that the testimony of the prosecution witnesses cannot be believed in the context of the admitted position, that the deceased Piaro and his brothers lived about a mile away from Ghulam Muhammad village. The deceased came to work in the morning and returned in the evening daily, and had to pass through the jungle and some cultivation between the scene and his village. and that no name of the informant was given out by P. W. Muhammad Hassan, and on the admitted prosecution case that no efforts whatever were made by anyone of the so-called eye witnesses of the incident after it had taken place, to contact the police. It was also finally contended that assuming that some witnesses were present at the time of the incident, none of the appellants were identified as their faces were mufed, and that the appellants were implicated on account of suspicion of the prosecution witnesses and the fact that they were absconding and were needed by the police in several cases.
8. There is no doubt that the unfortunate victims of the attack on the day of the incident, namely, Piaro and Darya Khan, died as a result of gunshot injuries. The testimony of the medical officer, Muhammad Zahir Hyder, Exh. 37, which has given in detail the numerous injuries on the bodies of these two victims, before and after the post-mortem examination, no doubt establishes that both of them died as a result of the external gunshot injuries, and as a result of shock and haemor rhage, and that several injuries in the case of either of the injured were individually sufficient in the ordinary course of nature to cause death.
9. In our view; and as rightly admitted by the learned counsel for the State, the prosecution case against the appellants rests on the oral evidence of the five prosecution witnesses examined in this case. It may be stated that the trial Court in paragraph 40 of his judgment has not attached any weight to the shod foot-print test of both the appellants in which the tracker Nawab, Exh. 20, picked out the foot-prints of the two appellants after a period of nearly four years.
10. We must state, after hearing counsel on either side, that the entire case appears to us most suspicious. Indeed the very manner in which the F. I. R. came to be lodged with the S. H. O. of the Kazi Ahmed Police Station, Mr. Ghulam Rasul, is extremely mysterious. The prosecution case is that Muhammad Hassan, a. brother of the deceased Piaro, in the context of the suspicions of enmity of the appellants and Moulabux in regard to Mst. Izat, obtained some information about the movements of the appellants on the day of the incident, and accordingly informed Sub-Inspector Ghulam Rasul, as, according to him, he apprehended danger from them. The F. 1. R. alludes to Muhammad Hassan Zardari reporting to Ghulam Rasul that the two appellants and Moulabux, Ottos by caste, were going towards the village of Pir Ghulam Muhammad, and as they were on inimical terms with the deceased Piaro, Muhammad Hassan and others, Muhammad Hassan suspected that they may commit murders there. According to Sub-Inspector Ghulam Rasul, on receiving this information, he, along with the subordinate police staff, arrived at the village of Ghulam Muhammad where Haji Hamzo, another brother of the deceased Piaro, met them and lodged the F. I. R. which he recorded at the scene, details of which have been already referred to.
11. The four alleged eye-witnesses of this incident are
(1) Haji Hamzo, P. W. 2, who is a brother of the deceased Piaro ;
(2) Mst. Nazan, P. W. 3, mother of the deceased Darya Khan ;
(3) Haji Ghulam Rasul, P. W. 4, a cousin of deceased Piaro ; and
(4) Haji Gul Muhammad, P. W. 7, a caste-fellow of both the deceased.
According to the prosecution witnesses Haji Hamzo, Ghulam Rasul and Gul Muhammad, the appellants on account of their suspicions against the deceased Piaro, had held out threats to Piaro, of vengeance. It is admitted that at no stage or time was any official complaint made about these threats. According to Haji Hamzo, at about noon time he was sitting at the shop of Ghulam Rasul, P. W. 4, as he wanted to purchase some medicine for a neice of his who was indisposed. Piaro, his brother, was in his shop, at the time, and there the deceased Darya Khan and Mst. Nazan were also sitting. Piaro also had a provision shop. Hamzo had been with Ghulam Rasul for a few minutes, when he heard the sound of gunshots and cries emanating from the shop of Piaro, in consequence of which Ghulam Rasul, Gul Muhammad and he stood outside. the shops of Gul Muhammad and Ghulam Rasul, and saw the appellants and Haji Moulabux, each armed with guns, firing into Piaro's shop, and of seeing deceased Darya Khan rushing out of the shop raising cries, and of his being shot dead by the appellants. Neither Hamzo nor Ghulam Rasul or Ghulam Muhammad went into Piaro's shop, since according to them, on realising what was happening, they immediately ran outside the village. Thereafter they emerged from their hiding on hearing Mst. Nazan's cries. Hamzo sent Haji Gul Muhammad to his village to inform his relatives, and Haji Hamzo together with the witness, stayed on at the scene together with Haji Gul Muhammad who returned to it, until the police arrived in the evening. It is established that the appellants were well-known to tine prosecution witnesses, and that they lived a very short distance away from the village where the prosecution witnesses stayed. It is also established that Haji Gul Muhammad, P. W. 14, Haji Ghulam Rasul, P. W. 4, and the deceased who had shops, in Ghulam Muhammad's village, used to come to their shops every morning from their village and return in the evening. Besides Haji Hamzo has further admitted in his cross-examination that between Pir Ghulam Muhammad's village and their own village, there is cultivation and a jungle in between, that they used to see the accused frequently before the incident, and the last occasion they did so was 3 or 4 days prior to the incident. It is further admitted that the appellants were seen by the prosecution witnesses as the land of the appellants adjoins that of the prosecution witnesses. In the context of these admissions, we find it extremely difficult to believe that the appellants should, if they wanted to wreak vengeance against Piaro, attempt to do so in the manner in which they are alleged to have done in broad-day light in the midst of a village bazar, and after taking the obvious risk of being identified by persons who were already well-known to them. It has been established on the testimony of the prosecution witnesses that there are about 20 to 30 houses in the village, that besides Zardaris, Shidis and Pirs have their homes in the village, that about 8 or 10 people accompanied P. W. Ghulam Muhammad when according to this witness, he went to Pir Ghulam Murtaza, to inform him of the incident. Pir Ghulam Murtaza has not been examined in this case, and P. W. Gut Muhammad, who the learned A. P. P. concedes is the only disinterested witness in this case, has admitted in his examination- in-chief in the trial Court, that the faces of the assailants of Piaro and Darya Khan were muffled. In the extracts Exhs. 15 and 16 of the testimony of Gul Muhammad given in the committal proceedings, and at the earlier stage of the case, it was stated that the faces of the appellants and Moulabux were muffled, that he could see their faces, but due to fear of guns, he was not definite, and that it was on account of suspicion that he identified the culprits to be the appellants and the absconding accused Moulabux.
12. The other witness, who is important for the purpose of the prosecution, is Myt. Nazan, P. W. 4, who is the mother of the unfortunate victim, Darya Khan, who was shot dead by the appellants. She was alleged to be in Piaro's shop, attempting to sell some ghee, which she had brought to sell. She was accompanied by Darya Khan. She also stated that she reached Piaro's shop, and had hardly had the ghee weighed, when the three appellants armed with guns came up to Piaro's shop and started firing at him from outside it. She only identified appellants Taju and Moulabux. Her cross-examination has established that when Hamzo, Gul Muhaminadan and the others returned to the scene after the assailants of Darya Khan and Piaro had left, she stated to them that some dacoits had killed her son and Piaro. Her cross-examination further establishes her admission that the faces of tae assailants were muffled, and although she has stated at a later stage of her cross-examination in the trial Court that what she had stated there was true, namely, that the faces of the appellants were not muffled and open, it is quite clear to us, and indeed admitted by the learned A. P. P. that the testimony of this witness is far from con vincing. In our opinion, she was not present at the time Piaro and Darya Khan were shot dead, and did not witness the incident.
13. We must also refer to Haji Hamzo's reason for being present at the scene and at the time of the incident. According to him, he went there at the time of the day as he needed some medicine for his neice who was suffering from a stomach ache. In the F. I. R. Hamzo has stated that he came to the scene at the time to purchase some provisions and not medicine. If this is so, and Piaro also had a shop for selling provisions, it appears to us that Haji Hamzo's reason for being present not at the shop of Piaro, but at the shop of Ghulam Rasul, was merely an attempt to obtain his presence at the scene established anyhow. We are not convinced with the reasons given for Haji Hamzo's presence at the scene that day.
14. The next circumstance is the extremely suspicious reasons which impelled Muhammad Hassan to repair to Kazi Ahmed Police Station and convey the S. H. O. his information regarding the appellants. No name of the informant has either been given by Muhammad Hassan to the S. H. O. nor was the S. H. O. able to obtain it out of him. It is admitted that the appellants were seen by Muhammad Hassan and his party only a few days earlier. Their cultivations are next door to that of the prosecution witnesses, and no reason has been given why Muhammad Hassan's suspicions were aroused particularly that morning, and why he should have gone to the S. H. O. of the Kazi Ahmed Police Station to convey what he suspected regarding the appellants, but refused to give the name of his informant. We are convinced that Muhammad Hassan's testimony is false, and that the reasons for the police party arriving at the scene were other than those given by Muhammad Hassan and the S. H. O. Perhaps it was due to the extreme enthusiasm of the S. H. O. to cap ture these absconders of several crimes. Besides there is conflicting evidence in the testimony of the three prosecution eye-witnesses on every single aspect of the prosecution case. It is clear from the testimony of the tapedar, Atta Muhammad, Exh. 11, read with the sketch of the scene, that it would not be possible to witness the incident from points C and D, specially from point D, from where P. Ws. Haji Gul Muhammad, Haji Hamzo and Haji Ghulam Rasul- are alleged to have seen the assailants shooting into Piaro's shop, and firing at the deceased Darya Khan. Besides, if it is contended that Darya Khan was shot dead by the assailants to prevent him being an eye-witness to the incident, there is no reason why Mst. Nazan who was allegedly sitting inside Piaro's shop at the time, was not similarly dealt with. We are not prepared to believe in the circumstances that the assailants of Piaro and Darya Khan were armed with guns, that P. Ws. Haji Gul Muhammad, Haji Hamzo and Haji Ghulam Rasul would stand by about 30 paces away and witness the incident, and not as one would naturally expect them to react, namely, to run away and take shelter immediately to save their own lives.
15. There is also the further circumstance that immediately after the incident, no attempt appears to have been made to contact the police, that the police party arrived at the scene nearly five hours after the incident, even though it may be conceded that Kazi Ahmed Police Station is about 6' miles away. An additional circumstance of extreme suspicion is that instead of immediately informing the police of the two murders that had taken place, P. W . Gul Muhammad should have been sent to inform the relatives of the deceased. Even then he returned to the scene and was there with the rest of the witnesses until the police arrived. If Haji Hamzo as the brother of the deceased Piaro was at the scene, it seems to us unnecessary to have sent Gul Muhammad out to inform the other relations of Piaro. The name of Gul Muhammad, P. W. 7, has not been mentioned in the F. I. R. and not a single disinterested witness has been examined to support the prosecution case. We find it extremely difficult to believe that the incident took place in the manner in which P. Ws. Haji Hamzo, Ghulam Rasul and Gul Muhammad have adduced to. We are constrained to hold, after being taken minutely through the record and proceedings of the case, that none of the three witnesses was present at the time of the incident. Also that Mst. Nazan was not present, and that she did not witness the incident, for indeed if she had done so, she would have mentioned the names of the appellants whom she knew before immediately, and not complain that dacoits had shot dead her son. It is strange that even Mst. Nazan who apparently is not connected with either the deceased Piaro or the appellants, made no attempt to rush to the police station or to send somebody to inform the police earlier of the incident. In our view, the dela y that has been occasioned, namely, that of 5j hours before the police arrived, the manner in which the police party came, and the reasons for their so doing, cannot possibly be believed. The prosecution have been unable to explain the vaccum of this rather alarmingly long period during which there was complete inaction on the part of the prosecution witnesses. If it was the desire of the appellants to wreak vengeance on the deceased Piaro, there would have been other safe opportunities where they could have dealt with him in a more effective manner with the natural instinct of self-preservation. It is not natural that the appellants, if they were the assailants, would attempt to satisfy their vengeance in broad day light, in the heat of the mid-day of a day in June in the Naushero sub-division, a noto riously hot area. We also do not agree with the reasons given by the trial Court for relying on the testimony of the four eye witnesses, Haji Hamzo, Ghulam Rasul, Mst. Nazan and Gul Muhammad, as besides they are all proved to be interested against the appellants. Muhammad Hassan, Exh. 13, has admitted that one Murad Machi had filed a theft case against appel lant Taju about five years ago. He had figured as an eye-witness against the appellants, and the accused had been acquitted in that case. The charge-sheet Exh. 44, dated the 26th February 1951, referring to the securing of a country made single-barrel gun from appellant Muhammad, shows that Hamzo Khan was one of the witnesses against this appellant. Clearly, therefore, the evidence against the appellants, which consists entirely of ocular testimony of the prosecution witnesses, is tainted, and we find ourselves unable in any manner to rely on it.
16. There is no other evidence against the appellants, and in such circumstances we have come to the firm conclusion that the so-called eye-witnesses of the incident are completely interested and unreliable against the appellants. In our view, they, including Mst. Nazan, were not present at the time Piaro and Darya Khan were shot dead: We feel there is much substance in the contention that the prosecution case, as urged in Court, has been made up at the scene after the arrival of the police, that the police party arrived there on information conveyed to them from other quarters of the murders of Darya Khan and Piaro, and in view of what may be said to be the past record of the appellants and the suspicions of the deceased Piaro and his relatives, prosecution witnesses and the S. H. O., a case was successfully made up at the scene, and put up in the manner in which it has been here.…
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