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Petitioner: SAKIN MUHAMMAD VS Respondent: The STATE
Court Name: Supreme Court of Pakistan Judge(s): N/A Title: SAKIN MUHAMMAD vs The STATE Case No.: Criminal Appeal No. 1-P of 1976 Criminal Appeal No. 101 of 1973 Date of Judgment:- Reported As: 1977 SCMR 83 Result: Appeal dismissed
JUDGMENT
JUDGMENT DORAB PATEL, J.-This is an appeal against a judgment of the Peshawar High Court by which the learned Judges of the Peshawar High Court dis--missed the appellant's appeal against his conviction under section 302, P. P. C. By the Sessions Judge, Mardan and confirmed the sentence of death passed on the appellant by the learned Sessions Judge. Hussan Dad was shot dead in the bazar of village Maneri Bala at about 4-00 p.m. On 21-2-1972. The deceased, however, lived with his father-in-law Hukem Dad in a hamlet about six miles from village Maneri Bala, and, according to the F. I. R. Lodged by P. W. Hakim Dad, a cousin of the deceased, he, P. W. Zarin Dad, the brother of the deceased and the said Hukem Dad had seen the appellant fire at the deceased and kill him. The motive for the crime according to the F. I. R. Was that the deceased had injured the appellant some years earlier by firing at him. The appellant denied the allegations against him and said that he had been falsely implicated on account of enmity: He had not been in his village when the police went to arrest him but he had surrendered to the police on 2-3-1972. He was, therefore questioned about his abscon--dence, and he said that he had not been in iris village at the time of the occurrence and that as soon as he learnt of the false charge against him he had surrendered to the police. He, however, did not produce any evidence in his defence. The learned Sessions Judge held that the evidence of the two eye-wit--nesses was "of an interested nature" but that it had been corroborated by the medical evidence and by the appellant's abscondence. Accordingly, he convicted the appellant under section 302, P. P. C. And sentenced him to death. The appellant challenged his conviction in an appeal in the Peshawar High Court which was heard with the reference by the Sessions Court under section 374, Cr. P. C.
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The learned Judges of the High Court held by their judgment dated 30-5-1974 that the prosecution had proved the appellant's guilt and they further observed that the testimony of the eye-witnesses was "worthy of credit" and that the motive for the murder was the personal vendetta between the parties. Accordingly, as the High Court dismissed the appeal and confirmed the sentence of death, the appellant filed a petition for leave which was admitted by this Court to examine his sub-- mission that both the Courts had misread the evidence.- As I pointed out the appellant's case was that be had been falsely implicated on account of the enmity -which the deceased bad against him, Additionally, lie also cross-examined P. W. Zarin Dad, the brother of the deceased on the allegation that he (P. W. Zarin Dad) had b,-en arrested in a case under section 307, P. P. C., P. W. Zarih Dad admitted that he had been arrested on a charge under section 307, P. P. C. But he said that the charge was false. This means that the deceased and his family would have bad other enemies. But the learned Judges of the High Court held that the prosecution had proved the motive for the crime. In other words, they inferred from the injury inflicted by the deceased that the appellant bad taken his revenge by murdering the deceased. With respect, the inference thus drawn is reasonable, but it is only an inference and the deceased or his family had other enemies. On the other hand, why did the deceased fire at the appellantOnly the prosecution could have given an explanation. It did not, and as it is also not the prosecution case that the deceased was of unsound mind, the prosecution evidence of the motive for the crime itself proves that the deceased harbored intense enmity against the appellant, otherwise he would not have fired at him. Unfortunately this- aspect of the case escaped the attention of both the Courts. Be that as it may, as the deceased harboured enmity against the appellant, the ocular evidence cannot be accepted without corroboration, because the only eye-witnesses examined were the brother and the cousin of the deceased. Turning now to-the ocular evidence, P. W. Zarin Dad, the brother of the deceased, who has been erroneously referred to by the High Court as a cousin of the deceased, said in his examination-in- chief that his brother had lunched with him, and after lunch they had gone to village Maneri Bala and were in the bazar of the village at the time of the occurrence. He was standing at the shop of one Shah Mahmood whilst his brother was a few paces away when the appellant came, fired his pistol twice at his brother and ran away. P. W. Hakim Dad' the cousin of this witness and therefore of the deceased, who was a Police Constable, also said that he was present in the village bazar at the time of the occurrence and had seen the appellant fire at the deceased and run away. Whilst this evidence supports the pro--secution case, Mr. Qasuri submitted that both the witnesses had made very damaging admissions in their cross-examination and that both the Courts had completely ignored the cross-examination of these witnesses. This Court does not normally enter into questions relating to the appreciation of evidence, but I have to observe with regret that the cross- examination of these two eye-witnesses appears, to have escaped the attention of both the Courts, therefore, it falls upon us to re-examine the evidence. However, before doing so as the ocular evidence is interested evidence, it is necessary to examine Mr. Qasuri's submission that there was delay in lodging the F. I R. The occurrence took place at 4-00 p.m. Whilst the F. I. R. Was lodged an hour later. As even according to P. W. Hakim Dad, who lodged the F. I. R., the distance to the police station was only a mile and a half, there was delay in lodging the F. I. R. Unfortunately, this was a circum--stance which escaped the attention of the High Court, whilst the Sessions Court held that the F. I. R. Was lodged promptly because the distance to the police station as a mile and a half. The ipse dixit of the Sessions Court, that the F. I. R. Was lodged promptly is not correct because it does not take an hour to walk one and a half mile. However, although this is not clear, the learned Sessions Judge also appears to have been of the view that there, was no delay because P. W. Hakim Dad had to arrange for a cot in order to take the dead body of the deceased with him to the police station, and P. W. Hakim Dad had said in his
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examination-in-chief that he had arranged for it cot and taken the dead body of the deceased on the cot to the police station. If this statement be correct, the delay in lodging the F. I. R. Has been satisfactorily explained. But Mr. Qasuri submitted that the witless had admitted that other persons had rushed to the spot on hearing shot, therefore the cot would have been produced in a matter of minutes. I have no doubt that the cot must have been produced immediately, the more so, as P. W. Hakim Dad was a police constable. Nonethe--less, as it would not be easy to carry a dead body on a cot, Mr. Qasuri drew out attention to P. W. Zarin Dad's statement that he and others had taken the dead body on a cot to the police station, whilst P. W. Hakim Dad had merely arranged for the cot P. W. Zarin Dad had further stated that "P. W. Hakim Dad stayed with us for 20/25 minutes and then he left for the police station". The evidence of this witness falsifies P. W. Hakim Dad's explana--petition of the delay in lodging the F. I. R. And it is not surprising that P. W. Hakim Dad was compelled to admit in his cross-examination that he had not taken the dead body of the deceased to the police station. Thus, the witness had made a succession of false statements in his evidence in order to explain away his delay, and the finding of the Sessions Court that there was no delay in lodging the F. I. R. Is based on a total misreading of the evidence. Turning now to the description of the attack on the deceased, both the eye-witnesses said in their evidence in the Sessions Court that the appellant had fired two shots at the deceased with his pistol and run away. As both the bullets were recovered from the body of the deceased, the Courts below were of the view that this furnished strong corroboration of the ocular evidence. And as both the shots hit the deceased in the chest, the medical evidence might have furnished some corroboration of the ocular evidence if the occurrence had not been in a crowded bazar. But as the occurrence was in a crowded bazar, other persons including the shop-keepers examined by the police were bound to have seen the assailant fire two shots. On the other hand, a circumstance which escaped the attention of both the Courts was that P. W. Hakim Dad had not stated in the F. I. R that two shots had been fired. If he was present, he could not possibly have omitted to state this circumstance in his F. I. R., as he was a police constable and knew the difference between one shot and two shots. Therefore, Mr. Qasuri submitted that the witness was a chance witness and had falsely claimed to be an eye-witness. In support of this submission, learned' counsel referred us to the admission of the witness in cross-examination that he lived less than a mile away from the village Bazar. In view of this admission Mr. Qasuri submitted that the witness must have been sent for after the occurrence and had then proceeded to lodge the F .I. R. The delay in lodging the F. I. R. As well as the false explanation given by the' witness in order to explain away his delay are consistent with and lend support to learned counsel's submission. However, even on tile footing that the witness had seen the occurrence, as he was an interested witness who had made false statements in order to misguide the Court, his evidence would require corroboration. Turning now to the evidence of the brother of the deceased, P. W. Zarin Dad, Mr. Qasuri submitted that this witness too had falsely claimed to have seen the occurrence because he lived five or six miles both from the place of occurrence and from the hamlet of the deceased. The explanation given by the witness was that on the day of the occurrence as the deceased intended to go to the bazar, the deceased had been his guest for lunch and that after lunch he had accompanied his brother to the bazar of village Maneri Bala. Mr. Qasuri submitted that this evidence was not fit to be believed because the brothers lived far apart. But even though they lived far apart there was nothing improbable in the witness's claim that he was with his brother at the time of the occurrence. Learned counsel then stated that on the day of tile occurrence, the witness was an absconder in a case against him under section 307, P. P. C. And as he was an absconder, he would not have dared to be present in a village bazar. The suggestion that he was an absconder was put to the witness in his cross-examination. But he denied it and no evidence was. Produced in rebuttal. In order to overcome this difficulty Mr. Qasuri sought permission to produce documents, being
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certified copies of the orders of the Court in which the witness had been declared an absconder prior to the day of his brother's murder. Learned counsel admitted that these documents could and should have been produced in the Sessions Court. Accordingly, although they appear to lend considerable support to the plea of the appellant, we could not allow them to be produced at this stage of the case, and this means that the finding that P. W. Zarin Dad was a witness of the occurrence cannot be challenged. I observed that according, to P. W. Zarin Dad the deceased had come to his house for lunch and then they hay' walked to the village bazar. This was on the basis ofWhat the witness said in his examination-in-chief. And as according to P. W. Dr. Farakh. Gul, the stomach of the deceased had contained semi-digested food the Sessions Court held that the medical evidence; corroborated P.W. Zarin Dad---s evidence therefore, it was highly impressed by the evidence of the witness. But the witness did not say in his statement to the police that his brother had a meal with him before the occurrence, and on the other hand as' the evidence of the witness in the Sessions Court was recorded long after the disposition of Dr. Farakh Gul had been recorded in that committal Court, the only possible inference from these facts is that the witness has introduced the story about the lunch in order to bring his evidence into line with the medical evidence. It is also significant that the F. I. R. Does not contain any reference to this alleged lunch, although P. W. Hakim Dad, who lodged the F. I. R. Had been with P. W. Zarin Dad for about half an hour after the occurrence. Now, P. W. Zarin Dad was cross-examined on his police statement, but could not explain the discrepancy between his evidence and that statement. The Sessions Court was of the view that the discrepancy was not material because the police could not have recorded the witness's statement properly. It was for the witness to state whether the omission in the section 162, Cr. P. C. Statement was an omission about on the part of the police or whether it was on account of the fact that he had not himself referred to the alleged lunch. Despite persistent cross-examination the witness did not give any explanation of the omission, therefore, the view taken by the Sessions Court involves the substitution of evidence by conjecture. Additionally, as the two eye-witnesses of the occurrence were close relations of a deceased who had enmity against the accused, the question whether any independent witnesses could have been examined becomes significant and as the incident occurred in a bazar, the failure of the prosecution to examine independent eye-witnesses seems very strange. In order to overcome this difficulty, the learned Advocate-General submitted on the basis of this Court's judgment in Yaqoob Shah v. The State (PLD1976SC 53) that an adverse inference should not drawn against the prosecution because of the reluctance of independent eye-witnesses to give evidence. Now, this is an unfortunate fact of our society that independent eye-witnesses in the sense of witnesses who are not related to the victim of the occurrence are reluctant to give evidence because of the fear of retaliation by the accused if acquitted. Obviously Courts can--not ignore realities, and at the same time convictions have to be based on evidence and not on conjecture. Accordingly, the question whether an adverse inference has to be drawn against the prosecution for not examining independ--ent witnesses cannot be decided by reference to judgments but must depend on the facts and circumstance of each case. In the instant case, the prosecution would have done better to examine independent witnesses but an adverse inference cannot be drawn against it merely because of its failure so to do. After all the prosecution is not required to examine every eye- witness. But if the evidence produced is of witnesses who are interested and unreliable witnesses, the prosecution is required to examine independent witnesses, and I regret to say that the two eye- witnesses examined in the instant case were interested witnesses who tried to improve on the prosecution case. Now, according to the F. I. R. Lodged by the Police Constable, the father-in-law of the deceased, one Hukam Dad, was an eye-witness of the murder. Further, the deceased was living with the said Hukam Dad in his house, and P. W. Zarin Dad had admitted in his police statement
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that the said Hukam Dad was also otherwise related to the deceased. In these circumstances, the prosecu--petition should have examined Hukam Dad, if not the other independent eye--witnesses, the-more so, as P. W. Khan Akbar Khan, S. H. O., who conducted the investigations, said that he had recorded Hukam Dad's statement. But the witness was dropped by the Public Prosecutor on the day on which P. W. Zarin Dad's statement was recorded. This was on the ground that according to the Advocate of the private complainant Hukam Dad had been won over by the accused. I can only express my consternation that the Public Prosecu--tor allowed the Advocate of the private complainant, whose duty was only to assist the Court, to decide whether he (the Public Prosecutor) should or should not examine witnesses mentioned in the F. I. R. As eye-witnesses. Therefore, an adverse inference must be drawn against the prosecution for not examining Hukam Dad and this is yet another circumstance which escaped, the attention of both the Courts. Now, P. W. Hakim Dad did not even refer in his examination-in-chief to the fact that Hukam Dad had seen the murder but the witness was confronted with his F. I. R. And as he had said in the F. I. R. That Hukam Dad was a witness of the murder, it is very clear that the omission by the witness to refer in his evidence to Hukam Dad's presence was a deliberate attempt to deceive and misguide the Court. Turning now to P. W. Zarin Dad, this wit-y ness had also said both in his statement to the police and in his statement in the committal Court that Hukam Dad had seen the occurrence yet he omitted to state in his examination-in-chief that the occurrence had been witnessed by Hukam Dad, therefore, he was cross-examined about and confronted with both his earlier statements. He repudiated them as false. Apart from the fact that the learned Advocate-General did not challenge the veracity of the statements made by P. W. Zarin Dad to the police and in the committal Court, Mr. Qasuri drew our attention to a somewhat unusual feature of this case. The prosecution had filed during the pendency of the case in the Sessions Court an application against the appellant under section 106, Cr. P. C. We invited the learned Advocate-General to explain why this application was filed but he was unable to do so. The question then is why this application f was filed. The answer can only be that as the F. I. R. Had been lodged by a Police Constable, the police were leaving no stone unturned to obtain the appellant's conviction. Mr. Qasuri of course submitted that this application under section 106, Cr. P. C. Manifested the bias of the prosecution. I would not accept this submission but in the circumstances it is very clear that the police would not have altered P. W. Zarin Dad's statement in any manner which would be damaging to the prosecution case. Similarly, P. W. Zarin Dad's statement in cross-examination that the committal Court had not recorded his statement correctly is too absurd to be believed. Why then did the witness repudiate his statements? The answer is obvious. The Advocate of the private complainant had decided to drop Hukam Dad, therefore, both these eye-witnesses tried to misguide the Court into believing that Hukam Dad was not a witness of the occurrence. In the circumstances, in my humble opinion, the evidence of P. W. Zarin Dad is not fit to be accepted without strong corroboration by independent evidence both because he was an interest--ed witness and because he was a dishonest witness. And similarly the per--formance of the other eye-witness was not much better. I pointed out earlier that the doctor had recovered two bullets from the body of the deceased but these were not forwarded to any expert for examination nor were any recoveries made at the instance of the appellant, therefore, the only evidence which can corroborate the ocular evidence is the medical evidence and that of the alleged abscondence of the appellant. Turning now to the medical evidence, the doctor's statement had been recorded in the committal Court and although she had been summoned to give evidence, her lower Court statement was brought on record by the learned Sessions Judge under section 509, Cr. P. C. Because she had not appeared in answer to the summons of the Court. Mr. Qasuri; submitted that the deposition of the doctor was not admissible. But learned counsel admitted that the appellant had the opportunity of cross-examining the doctor in the lower Court. He however, submitted that the lower Court
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deposition of the witness could have been brought on, the, record under section 509, Cr. P. C. Only if she bad not been summoned but as she had been summoned section 509, Cr. P. C. Was not applicable. The submission is supported by a judgment of the Dacca High Court in Mozaffur Sarkar and others v. The Crown (2 D L R 190) but it means reading into subsection (1) of section 509, Cr. P. C. a qualification which is not contained in the Statute, and I would re-affirm the view taken by this Court in Wahid Bakhsh v. The State (1974 SCMR 219). Mr. Qasuri then submitted that the medical evidence was dis--crepant with the ocular evidence because the bullets recovered by the doctor weighed 190 grams. If the bullets had weighed 190 grams, they could not have been fired from a pistol. But the doctor had also produced and proved her post-mortem notes from which it is clear that the weight of the bullets was 190 grains and not 190 grams, therefore, learned counsel's submission is misconceived. I would now examine whether the other evidence including the medical evidence is sufficient to corroborate the ocular evidence with all its infirmities. The prosecution had relied in this connection on the recovery by the doctor of two bullets which could have been fired from a pistol and on the doctor's opinion that the stomach of the deceased contained semi-digested food. Reliance was also placed on the fact that the blood at the place of occurrence supported the statement of the eye-witnesses about the manner in which the deceased had fallen after he had received the fatal shots. Neither the bullets nor the other evidence can throw any light on the identity of the assailant and it is this part of the ocular evidence which requires corrobora--petition, not any other part. Therefore, prima facie it is difficult to see how the evidence relied upon by the prosecution can help its case. By this I must not be understood to mean that medical evidence can never corroborate ocular evidence and in Nazir and others v. The State (PLD 1962 SC 269), this Court upheld the High Court's view that the medical evidence corroborated the ocular evidence. But the case turned on the express finding that the eye-witnesses were very reliable, even though they were interested witnesses, therefore, on the true ratio of this case, it is difficult to see how medical evidence can furnish sufficient corroboration of the ocular evidence in the instant case, because P. Ws. Hakim Dad and Zarin Dad were interested and unreliable witnesses. I am aware that both the Courts were impressed by Dr. Farakh Gul's opinion about the presence of semi-digested food in the N stomach of the deceased, but this evidence has no corroborative value because P. W. Zarin Dad had not said in his statement to the police that the deceased had lunched with him. However, assuming that he had, would have made any difference As I am disturbed by what I can only describe as a mechanical appreciation of evidence which is becoming very frequent, I would observe here that if, for example, P. W. Zarin Dad had said that the deceased had not taken any meal, the corroboration of such a statement would have had evidentiary value because the deceased being a Zamindar would, in the ordinary course of things, have taken his afternoon meal. But the statement that the deceased had taken his afternoon meal was a statement of something which was so overwhelmingly likely to have happened in the ordinary course of things, that it could not throw any light on the veracity of the witness. Therefore, the corroboration of such a statement cannot furnish any corroboration of ocular evidence tainted by enmity. I now turn to the question of the recovery of two bullets by Dr. Farakh Gul from the body of the deceased. In my opinion, what was more impor--tant was her statement that the wounds of both the shots were in the chest. This means that it might not have been possible for a witness to say from a glance at the corpse that the deceased had been fired at twice, therefore, the medical evidence could have corroborative value. However, P. W. Zarin Dad's statement that the appellant had fired twice could have been based on what he had seen or on what he had been told by others, and if the former, the medical evidence would have had some corroborative value. So, if the murder had been committed in a remote place where no other witnesses were present, P. W. Zarin Dad's statement would have been consistent with his claim to have witnessed the occurrence and
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