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Petitioner: GHULAM HUSSAIN- VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Durab Patel Title: GHULAM HUSSAIN- vs The STATE Case No.: Criminal Appeal No. J-6 and Confirmation Case No. 8 of 1972 Date of Judgment:1973-02-20 Reported As: PLD 1974 Karachi 91 Result: Appeal partly accepted
JUDGMENT
JUDGMENT DORAB PATEL, J.----The appellant has keen convicted by an Additional Sessions Judge, Dadu, under section 302, P. P. C. And sentenced to death: He has filed an appeal against this conviction and sentence and the case has also come up to us for confirmation of the death sentence under section 374, Cr. P. C. Therefore I will dispose of tie reference and the appeal by this judgment. 2. According to the prosecution, there were differences between Ghulam Hyder and the appellant on account of the appellant's desire to marry Ghulam Hyder's younger sister. The appellant was a coolie at Kotri Railway Station, whilst Ghulam Hyder lived in a village near Kotri, and on 17-9-1969 Ghulara Hyder went to a hotel near Kotri Railway Station owned by one Ayub, at about 10-30 a.m., the appellant followed him, attacked him with a `danda' and after giving him 5 or 6 danda blows, which. Caused him to fall down, the appellant ran away with his danda. The occurrence was seen by many persons, including P. Ws. Noor Muhammad and Aslam, and after the ' appellant had run away they helped Ghulam Hyder to get up. Ghulam Hyder was bleeding from his nose, but he left immediately to report the occurrence at the Kotri Police Station, which was half a mile away. P. W. Muhammad Yousif, Head Constable recorded the F. 1. R. In the Station Diary under sections 323 and 504, P. P. C. After recording the F. I. R., P. W. Muhammad Yousif, Head Constable prepared a mashirnama of the injuries on the person of Ghulam Hyder (Exh. 11-1), which was witnessed by P. W. Safar and another mashir. He then directed Ghulam Hyder to go to the Kotri Dispensary, where Ghulam Hyder was examined by P. W. Dr. Abdul Rashid. As P. W. Dr. Abdul Rashid noticed that Ghulam Hyder was in a serious condition, he directed him to go to the Liaquat Medical Hospital at Hyderabad for treatment but without noting his injuries. Accordingly, Ghulam Hyder went to that Hospital, but meanwhile his father P. W. Haji had learnt of the occurrence and met his son either in
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the Kotri Dispensary or in the Kotri Hospital. Ghulam Hyder, despite his injuries, was able to tell his father (P. W. Haji) about the occurrence, including the motive for it. P. W. Haji however had his son removed to the Civil Hospital, where he was taken in a taxi, but he died in the Civil Hospital at about 11 a.m. On 19th September 1969. P. W. Muhammad Yousif, Head Constable was informed of his death. He immediately reported it to P. W. Pahalwan Khan, the Additional S. H. O. Of the police station. P. W. Pahalwan Khan transcribed the report recorded earlier in the station diary in the section 154, Cr. P. C. Book as Exh. 12/1, and went to the Civil Hospital to have the post-mortem of the body of the deceased carried out. But as the Civil Hospital refused to do so, he had the dead body removed to the Kotri Hospital where P. W. Dr. Abdul Rashid carried out the post-mortem. P. W. Pahalwan Khan, the Additional S. H. O. Then proceeded to the wardat and prepared a mashirnama, but as there was no blood, this is not relevant. He then commenced recording the statements of the witnesses, and meanwhile, as he had instructed P. W. Muhammad Yousif, Head Constable to arrest the appellant, P.W. Muhammad Yousif, Head Constable had followed the appellant to Dadu and he arrested the appellant at Dadu Station at 3 p.m. On 19-9-1969. The appellant was brought back to Kotri and the next morning he volunteered to produce the crime weapon which was recovered from him, but as it was not stained with human blood it is not relevant. The appellant then wanted to confess his crime and accordingly on the same day he was taken to ' P. W. Khursheed Hyder Rizvi, the Civil Judge and First Class Magistrate, Kotri for recording his confession. P. W. Khursheed Hyder Rizvi, thereafter recorded the appellant's confession (Exh. 12/3), after giving him the usual warnings. In due course, the appellant was challaned as stated and the witnesses mentioned herein were the material witnesses examined by the prosecution in order to prove its case. 3. The appellant's plea in both the Courts was one of total denial and he said that he had been falsely implicated by the police. He also repudiated his judicial confession on the ground that it had been obtained from him by the police. He also denied having produced any danda or lathi and further said with regard to his confession. "The confession alleged to have been made by me before the Magistrate is the reproduction word for word what said to have stated before the police" The appellant sought to cross-examine both P. W. Khursheed Hyder Rizvi and P. W. Pahalwan Khan on this allegation, but the learned Additional Sessions Judge did not permit the cross--- examination. The appellant however did not produce any evidence in his defence. 4. I have observed that the occurrence was witnessed among others by P. Ws. Noor Mead and Aslam. The learned Additional Sessions Judge was impressed by their evidence, and as P. W. Dr. Abdul Rashid's evidence proved that the deceased had been killed by a weapon such as a latui, the learned Additional Sessions Judge came to the conclusion that the ocular evidence was in the circumstances sufficient to prove the appellant's guilt. He however was not impressed by the evidence of P. W. Haji, the father of the deceased. On the other hand, despite the specific plea advanced by the appellant, he held that his confession was genuine and voluntary. He was also impressed by the dying declaration of the deceased vide the F. I. R. (Exh. 17/1). Accordingly, even though the appellant had retracted his judicial confession, the learned Additional Sessions Judge held that it was amply corroborated by reliable evidence. He accordingly convicted the appellant as stated. 5. I shall first examine the ocular evidence. The prosecution examined P. Ws. Aslam and Noor Muhammad as eye-witnesses of the occurrence and as it was not disputed that they worked at the hotel where the occurrence took place, both these witnesses were natural witnesses. Both of them said that Ghulam had come to the hotel at about 10-30 a.m., that the appellant had followed him and attacked him with a danda 5 or 6 times. Then, accord--ing to both the witnesses Ghulam Hyder fell down, whilst the appellant ran away, but they (the witnesses) helped Ghulam Hyder to get up after which Ghulam Hyder went away unaided by any one. As these witnesses admitted the
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presence of other persons at the occurrence, Mr. Nooruddin criticised the failure of the prosecution to examine more eye-witnesses, but as the prosecu--petition was not required to examine every possible witness, the only question is whether the evidence of the two witnesses examined is fit to be accepted. `~ Both these witnesses were natural witnesses, no enmity has been alleged or proved against them and they have given evidence fairly, so I see no reason to doubt their statements. But the question which arises is whether this ocular evidence can possibly prove a charge under section 302, P. P. C. It is significant that the witnesses merely stated that the appellant had attacked Ghulam Hyder, but they did not say that he had attacked him on the head or face. And as they also said that Ghulam Hyder had walked away after the incident without any assistance whatsoever, I can only take the ocular evidence to mean that the appellant had not attacked Ghulam Hyder on the face or the head. 6. I now turn to the medical evidence. P. W. Dr. Abdul Rashid, who carried out the post-mortem, said in his evidence that 8 out of 10 injuries to the deceased appeared to have been caused by a weapon such as a `lathi'. Now although the medical evidence thus supports the prosecution case to the extent that the appellant- had attacked the deceased with a `danda', the further question which arises is whether it supports the prosecution case against the appellant under section 302, P. P. C.? As the answer to this question depends entirely on the medical evidence, it will be convenient to set out the injuries to the deceased as specified by P. W. Dr. Abdul Rashid. According to the doctor, the deceased had the following 10 injuries: --- (1) Abraided contusion 3" x 3" on the left side of the neck. (2) Ecbymosis in the upper eyelid and around the left eye. (3) Contusion 2" x 2" on the left side of the chest on the lower end. (4) Contusion 1" x 1" right side of the chest lower end. (5) Abraided contusion 6" x 2" on the left buttock over lying the iliac chest. (6) Contused wound 1" x --" on the outer part of left eye brew. (7) Contused wound 1" x --" and scalp deep on the left parietal region. (8) Contusion 3" x 2" with swelling on the left temporal region. (9) Abrasion --" x --" on the left knee. (10) Abrasion --" x --" on the right knee. P. W. Dr. Abdul Rashid further pointed out that injury No. 8 was fatal and' said that it was a fracture of the left temporal bone continued to the base of the skull, that this injury had caused inter-cranial haemorrhage due to the rupture of the middle menangil artery and that there was a clot of blood about 50 C. C. In the temporal region. Even a cursory perusal of the medical evidence is sufficient to show that the assailant who had struck the fatal blow had attacked the deceased on his head and face, yet neither P. Ws. Aslam nor Noor Muhammad have said so. Would it then be safe to assume that their evidence is sufficient to prove that it was the appellant who had struck the fatal blow? It is necessary to point out here that according to P. W. Noar Muhammad the deceased did not even become unconscious on, account of the blows inflicted by; the appellant. This is hardly consistent with the injuries described by P. W. Dr. Abdul Rashid. It 'is also significant that although P. W. Noor Muhammad knew the deceased, neither he nor any one else attempted to look after him. They merely helped him to get up and then he went away on foot. Could any person, who had received the injuries described by P. W. Dr. Abdul Rashid, have been allowed to walk away on foot? It is true that the deceased said in his dying declaration, namely the F. I. R. (Exh. 17/1), that the appellant had hit the deceased on the head, "on my left side at temple" as he put it, and because this was a dying declaration the learned Additional Sessions Judge has placed great reliance on it. But as observed by Sajjad Ahmad, J. In Tawaib Khan v. State (PLD 1970 SC 13) at page 17: "It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted as if by a magic transformation, with a clean
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conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours, and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be sorrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses becomes absolutely necessary. The maxim 'falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country." I am in respectful agreement with these observations, and it seems to me, in the circumstances of the case, that the reliance placed by the Sessions Court on the dying declaration was not justifiable. 7. Apart from the fact that the eye-witnesses of the occurrence did not consider the injuries to the deceased to be serious, it is the prosecution case that he walked from the wardat to the police station, the distance being half a mile. Then P. W. Muhammad Yousif, Head Constable recorded his complaint, prepared a mashirnama of the injuries to him (Exh. 11/1) and allowed him to go on foot to the Kotri Hospital or Dispensary which was an--other 2 furlongs. In the first place, I find it impossible to believe that a person who had received the injuries described by P.W.Dr. Abdul Rashid could have walked to the police station reported the F. I. R. And then walked on to the hospital as if he Nad only received minor injuries. Mr. Nasiruddin however referred me to two circumstances in support of the ---prosecution case. The first was the doctor's opinion that a man injured, as the deceased was, could have walked "in very exceptional cases". The second was that the mashir--nama of the injuries to the deceased (Exh. 11/1) corresponded very roughly to the injuries described in the post-mortem report. As to the first circumstance, there is no evidence to show that the deceased could have been a very exceptional person and even P. W. Dr. Abdul Rashid limited himself to saying that he could have walked to the police station. But according, to the prosecution, the deceased had thereafter again gone on foot to the hospital, would he have been allowed to do so if he had been injured as alleged? This cannot but cast doubt on the evidence about the mashirnama of the injuries (Exh. 11/1) including the evidence of P. W. Muhammad Safar in this respect. Further, as I have pointed out, the ocular evidence is inconsistent with the allegation that the deceased had been bit by the appellant on the head or on the face, and as between this-evidence and the evidence of P.Ws. Muhammad Safar and Muhammad Yousuf Head Constable about the mashirnama of injuries (Exh. 11/1), I have no hesitation in preferring the ocular evidence. There is also another important circumstance to which Mr. Nooruddin drew our attention. P. W. Haji said in his evidence that he had taken his son from the Kotri Hospital or Dispensary to the Civil Hospital for treatment, but the deceased died after having been more than 24 hours at the Civil Hospital, and then, according to P., W. Pahalwan Khan, the Civil Hospital refused to carry out the post-mortem. A strange plea and in view of the mystery surrounding the injuries to the deceased, the prosecution should have produced evidence about his treatment, at the Civil Hospital, his condition at the time of his admission there, and the refusal of the civil hospital to carry out a post-mortem. The prosecution has failed to do so, and this casts further doubt on its case. In my humble opinion, we would therefore not be justi--fied in upholding the conviction of the appellant under section 302, P. P. C. In the absence of other reliable evidence. 8. The only other evidence, according to the Sessions Court, was that of P. W. Haji, the abscondence of the appellant and his judicial confession. Now P.W. Haji merely said that his son told him, and as I cannot believe the dying declaration of the deceased itr is clear that P. W. Haji's evidence has no evidentiary value. Similarly, the mere fact that the appellant was arrested at Dadu does not lead to the conclusion that he had tried to abscond, and as he was not properly questioned on this aspect of the case the so-called abscondence fails to support the prosecution case. Thus, there remains
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only the judicial confession of the appellant (Exh. 16/1). But as it was retracted, it was the duty of the Sessions Court to satisfy itself that it was genuine and voluntary before relying on it, as it has done. Now, the learned Additional Sessions Judge held that the appellant's retracted judicial confession was genuine and voluntary solely on the evidence of P. W. Khursheed Hyder Rizvi, Sub-Judge and First Class Magistrate, Kotri, who had recorded that confession. Mr. Nooruddin therefore took us through the evidence of this witness, and if it is fit to be believed, as held by the trial Court, it is clear k, that the confession was genuine and voluntary. However, as I have pointed out earlier, the appellant's plea in his statement under section 342, Cr. P. C. Was that this confession Exh. 16/1, was a reproduction word for word of his statement to the police. If this allegation be true, it would be difficult for any Court to hold that the confession was genuine and voluntary, and the appellant's Advocate had therefore sought to cross-examine both P. Ws. Khursheed Hyder Rizvi and Pahalwan Khan, S. H. O. On this allegation. This is also clear from the cross-examination of these two witnesses, and Mr. Nooruddin's submission was that the learned Advocate was not allowed to cross-examination witnesses because the learned Additional Sessions Judge was of the view that any such cross-examination would be barred by section 162, Cr. P. C. Mr. Nooruddin's submission appears to be correct, as is clear from the Court's note on the cross-examination of P. W. Pahalwan Khan, S. H. O. Thus, the learned counsel for the appellant had put a question to this witness that the judicial confession (Exh. 16/1) "was word by word same as given" by the appellant to the police. But this question was disallowed on the ground that a statement to the police was not admis--sible. Now, as I have observed, if the appellant's allegation be true it would totally discredit the evidence of P. Ws. Khursheed Hyder Rizvi and Pahalwan Khan, and therefore Mr. Nooruddin submitted that the learned Additional Sessions Judge had misconstrued section 162, Cr. P. C. And I am glad to state that as the submission turned on a question of law Mr. Nasiruddin, who appeared on behalf of the State, very fairly conceded that he could not defend the view taken by the learned Additional Sessions Judge. Both the learned counsel, after taking time, submitted that this section had to be read with section 172, Cr. P. C. And section 159 of the Evidence Act. Mr. Nasiruddin also drew our attention to the rule that although a confession to the police could not be proved against the accused, it could be used by the accused in his favour. Mr. Nasiruddin therefore referred us to the case-law on section 25 of the Evidence Act and we are grateful for his assistance. However, in view of the importance of the question raised, we gave notice to Mr. Hayat Junejo to assist us amicus Puriae, and he also submitted that the learned Additional Sessions Judge had misconstrued section 162, Cr. P. C. Accordingly, as it appeared to us that a miscarriage of justice had occurred, we summoned P. W. Khursheed Hyder Rizvi and Pahalwan Khan for further cross-examination. But before I consider their evidence and the appellant's retracted judicial confession I would first examine the legal position. 9. Section 162, Cr. P. C. After amendments in 1923 and 1942 reads as follows: "162.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall,. If reduced into writing, be signed by the person making it, nor shall ay such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investiga--petition at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as afore--said, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross---examination.
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Provided further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential an the interests of iustice and is inexpedient in the public interests it . . . . . . Shall exclude such part from the copy of the statement furnished to the accused. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1), of the Evidence Act, 1872 (or to affect the provisions of section 27 of that Act). I have underlined the provisions inserted into the section by the amendment of 1923, whilst the words in brackets at the end of subsection (2) were added by the amendment of 1941. Turning now to section 172, it states: "172.-(1) Every police-officer, making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him . . . . . And a statement of the circumstances ascertained through his investigation. (2) Any criminal Court may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court ; but if they are used by the police- officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of the Evidence Act, 1872, section 161 or section 145, as the case may be shall apply." Both Mr. Nasiruddin and Mr. Nooruddin submitted that the object of these two sections was to give a qualified privilege to police diaries in the public interest, and therefore in the present case the Sessions Court could have put the diaries in evidence, but only under section 159 of the Evidence Act. Learned counsel referred us in support of this submission, to a Full Bench judgment of the Allahabad High Court in Queen-Empress v. Mannur (I L R 1897 All. 390) and, as before us, the question before that Full Bench was whether an accused could be permitted to rely on his statements to the police. The majority of the learned Judges answered the question in the negative and as the leading judgment is that of the Chief Justice, I would briefly refer to the relevant passages in it. Edge, C. J. Observed at page 395 with reference to police diaries as follows: "The Court may also use the special diary not as evidence of any date, fact or statement referred to in it, but as containing indications of sources and lines of inquiry and as suggesting the names of persons whose evidence may be material for the purpose of doing justice between the Crown and the accused. Should the Court consider that any date, fact or statement referred to in the special diary is or may be material, it cannot legally accept the special diary as evidence in any sense, of such date, fact or statement, and must in law before allowing any date, fact or statement referred to in the special diary to influence its mind, have such date, fact or statement established by legal evidence. It is the Court which is entitled to use the special diary for the purpose of seeking for sources and lines of inquiry . . , . . Neither the accused nor his agent is entitled under section 172 of the Code of Criminal Procedure to see the special diary for any purpose unless it had been used by the Court for enabling the police officer who made it to refresh his memory or for the purpose of contradicting him." The learned Judges then referred to the dangers of allowing the accused free access to police diaries and observed at page 399: "If the special diary or anything which it contains is to be subject to the inspection of any accused person or of his agent, it is hopeless to expect that the Police Officer making the investigation will insert in it information obtained by him, but which, rightly, or wrongly, although honestly, he believes to be injurious to the case for the prosecution, or to be misleading or to be false. Further, so long as Magistrates and Judges allow their minds to be influenced by, and decide cases upon, information contained in special diaries which has not been established by legal evidence and has not been tested and sifted by the
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examination of witnesses it is hopeless to expect the police officers will resist the temptation to keep out of the special diaries informa--petition which, if inserted in them, would, in the opinion of such Police Officer, be likely to mislead the Magistrate or the Judge. Such information may be suppressed with the honest intention of procuring…
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