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Petitioner: GULLAN AND 2 OTHERS VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Hafeez Memon, Abdul Qadir Sheikh Title: GULLAN AND 2 OTHERS vs THE STATE Case No.: Criminal Appeal No, 248 of 1973 Date of Judgment:1974-04-17 Reported As: 1976 P Cr. L J 1 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ABDUL HAFEEZ MEMOS, J.-The three appellants in this case, namely Gullam aged 60 years and his two sons Ibrahim aged 28 years and Dhani Bux aged 22 years have been convicted by the learned 1st Additional Sessions Judge, Nawabshah for an offence under section 302 read with section 34, Pakistan Penal Code and sentenced to imprisonment for life. 2. The case for the prosecution was that on 21-1-1971 at 2-15 a.m. Appellant Gullan came to the Police Station, Naushahro Feroze to report the incident resulting in death of one Hafiz son of Piru Memon which was recorded by P. W. Faiz Muhammad, S. H. 0. Of Police Station Naushahro Feroze, in the following words :- "Complaint is as follows :-I am resident of Mohalla Saleempur, town Naushahro Feroze. Last night, I, my sons namely Ibrahim, Hussain Bux, Dhani Bux and other members of family, went to sleep as usual after taking meals. At mid-night, there was barking of dog at the back of my house inside the hedge, whereupon I woke up and my sons namely Hussain Bux, Dhani Bux and Ibrahim also woke up from the other room of my house out of whom some picked up hockey, some picked up lathi and some picked up danda and went to the back of the house. There we saw three thieves, standing at the back of the house, inside the protection hedge. We challenged them as who were they. Out of them two thieves escaped, jumping over the hedge to the north of the house, and one thief tried to escape eastwards, and we tried to catch hold of him. The thief, trying to get himself released, started running eastwards to an open ground and a street leading to town. I inflicted him hatchet blows and my sons namely Hussain Bus, Ibrahim and Dhani Bux, gave him hockey, danda and lathi blows, and fell him down in the street. Thereafter upon our cries as "thief-thief" namely Abdul Rehman son of (word illegible) Memon, Muno Menon, Mangar son of Safar Gopang and other
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neighbourers came there, and saw the facts. Due to receiving injuries by us, the thief expired. We identified the thief as Hafeez son of Peero caste Memon resident of Kot Bahadur who was previously known to me and has expired. Thereafter I and my sons made search for the absconding thieves, but could not trace out. The thieves who escaped from the spot were unknown to me and could not identify them on seeing, as there were dark and shade. The hatchet with which I had inflicted injuries to Hafeez have left at the scene of offence. Deceased Hafeez and two other thieves had trespassed into my house with intention to commit theft. I have not received any injury from the thief. I lodge complaint action be taken." ' On the basis of the above report S. If, 0. Faiz Muhammad registered a case under section 452, P. P. C. For criminal trespass and registered another case on behalf of the State under section 302, P. P. C. Against appellant Gam] and others. After registering the case, he arrested appellant Gullan at the police station and secured blood-stained shirt and shalwar from his person in presence of P. W. Dhani Bux, who had himself come to lodge the report for theft of his household articles. The S. H. O. Alongwith appellant Gullan, mashIrs Dhani Bux and Ramzan then reached the vardat in the morning where appellant Gullan showed him the place where the dead body of Hafiz was lying on the heap of rubbish in the open ground about 12 paces away from the house of appellant Gullan, and also showed him the place from where he had seen the thieves and the hedge which was found by the S. H. 0. To be broken. At the vardat S. H. 0. Secured a hatchet, two broken pieces of hockey and piece of lathi, all stained with blood. He then prepared inquest report and sent the dead body to the hospital for post-mortem. 3. Thereafter, the S. H. 0. Arrested Ibrahim, Dhani Bux, and acquitted accused Hussain Bux and secured blood-stained shirt and shalwar from the person of Ibrahim and a blood-stained shalwar from the person of Dhani Bux. As Dhani Bux and Muhammad Ibrahim had injuries on their persons, the S. H. 0. Referred them to the hospital where Dr. Nameeruddin Ahmed examined them. He also conducted post-mortem of the deceased, and found the following injuries :- "(1) One incised wound ex 2' x 3' over the lower part of the occipital bone cutting the occipital bone first vertebrae and spinal cord. (2) One incised wound 4' x 1/2' x 3/4' x 1r below injury No, 1 over the back of neck. (3) One incised wound 4' x 1/2' x 1/2' just below injury No, 2. (4) One incised wound 1 1/4' x 1/4' NI scalp deep over the upper part of occipital bone. (5) One incised wound 1!." 1/2' scalp deep 1 1/2' above and right to injury No, 4. (6) One lacerated wound 2' x 1/4' x scalp deep over the posterior part of parietal bones. (7) One lacerated wound 3' x 1/2' x scalp deep in front of injury No, 6 over the left parietal bone. (8) One lacerated wound 1/2" x 1/3' x scalp deep 1' in front of injury No, 7. (9) One lacerated wound 3' x 1/2' x scalp deep over the right parietal bone. (10)One incised wound 6 1/2" x 3' x 2' over the left shoulder cutting the underlying bones scapula and humorous. (11)One incised wound 5' x2' x 2' over the right scapula region cutting the scapula. (12)One incised wound 2' x 1/2' x 1/5' 2' below and medial to injury No, 11. (13)One incised wound 41( x 3/4' x 1' over the left arm. (14)One bruise 1' x 1/2' x 2' below injury No, 13. (15)One abrasion 2' x 1/3" over the back of left elbow. (16)One incised wound 3" x 1' x bone deep over the left wrist cutting the left radius. (17)One incised wound 2 1/2" x 1/4" x skin deep over the front of left shoulder. (18)One contusion 3'x If over the upper part of right arm.
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(19)One incised wound I x 1/3' x bone deep over the distal phalynx of right index finger, cutting the bone. (20)One incised wound 4' x 1/6" x skin deep over the lateral part of left thigh. (21)One incised wound 4" x 1/8' x skin deep over the upper part of right side back. (22)One incised wound l' x 1/3' x skin deep over the right side of chest." ' On the internal examination it was found that spinal cord was cut, 1st vertebrae was also cut. Pericardium and heart were empty. Stomach contained semi-digested food material. All the other organs were normal. "From the external as well as internal examination of the dead body of deceased, the doctor was of the opinion that the cause of death was due to the shock and haemorrhage as the injuries mentioned above. Injury No, 1 was sufficient in ordinary course of nature to cause the death. Injuries Nos. 1, 2, 3, 4, 5, 10, 11, 12, 13, 16, 17, 19, 20, 21 and 22 appeared to have been caused by some sharp- cutting weapon such as hatchet and the rest appeared to have been caused by blunt substance such as lathi." ' Appellants Muhammad Ibrahim and Dhani Bux had the following injuries on their persons :- "Muhammad Ibrahim : (1) One abrasion 1/2' x 1/3' over the dorsem of right index finger. (2) One contusion 3' x 1' over the left forearm. Both the injuries were simple in nature and appeared to have been caused by some blunt weapons such as lath!. The age of injuries was about 12 hours. ' Dhani Bux: ' One contusion 2' x 1' over the dorsem of right hand. ' The injury was simple in nature and appeared to have been caused by some blunt substance such as lathi. Age of injury was about 12 hours which tallies with the time of the incident alleged in this case." 4. Appellant Gullan was produced before the mukhtiarkar and F. C. M., Naushahro Feroze on the same day at 9-10 a.m., where his judicial confession was recorded. Ali the blood-stained articles secured by the S. H. 0. Were sent to the Chemical Analyser who found them to be stained with human blood. After completing the investigation the appellant Gullan, Ibrahim and Dhani Bux and the acquitted accused Hussain, were sent up to stand their trial in the Court of the Additional Sessions Judge, Nawabshah. 5. At the trial, against appellant Gullan, the prosecution relied on the statement made by him at the police station incorporated in the F. I. R. (Exh. 18), the judicial confession recorded by the Magistrate on the same day, and the circumstantial evidence furnished by the presence of human blood on his clothes and his conduct in that he took the Investigation Officer to the precise place where the dead body was lying and from where the weapons of offence mentioned in the report were recovered. As against appellant Gullan, Muhammad Ibrahim and Dhani Box the prosecution relied upon the retracted judicial confession of their father, appellant Gullan, and the circumstantial evidence furnished by the presence of human blood on their clothes and the presence of injuries on their persons. The prosecution also relied upon the evidence of motive against all the appellants which was to the effect that deceased Hafiz was on terms of illicit intimacy with the wife of appellant Gullan about which appellant Gullan had complained to P. W. Tahir a month before the incident and hence this murder. 6. The defence of the appellant at the trial was one of denial and false implication. In his statement under section 342, Cr. P. C. Appellant Gullan when questioned as to his statement incorporated in the F. I. R. (Exh. 18) stated as under :- "I had reported to the S. H.
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0. That thieves bad entered my house and on our awaking up we pursued them, whereupon one of the thieves grappled with me, he fell down and his companions thinking the third thief to be me caused him several injuries and ran away. The S. H. 0. Came at the vardat in the morning and he being under the influence of Tahir P. W. And other relations of deceased wrote the report of his own and forced me to sign it, on the next day at morning time." ' As to securing of the blood-stained shirts and shalwar from his person at the police station, he explained as under "That the shirt and shalwar were secured from my person at morning time at the vardat and not at the police station. My clothes might have been stained with blood as I had grappled with the deceased who had bled from his injuries caused to him by his companion." ' As regards his making the judicial confession before the Magistrate, he explained that female members of his house were taken out from his house and were insulted and maltreated and his sons Dhani Bux and Ibrahim were beaten by the police and due to above coercion and harassment he had made the judicial confession which was neither voluntary nor true. With regard to his pointing out the dead body of the deceased lying in front of his house and securing of blood- stained hatchet and pieces of hockey and lath! He explained that "whole mohalla had seen the deceased lying dead. Police also saw deceased lying dead". He further stated that he had been implicated by P. W. Tahir, uncle of the deceased, as he had complained against him for selling charras and indulging in prostitution at his (P. W. Tahir's hotel). Appellant Ibrahim when asked about the presence of injuries on his person and the blood-stained clothes at the time of his arrest by the police on the same morning, stated that the police had caused him injuries as they had beaten him up. When asked about the confession of his father appellant Gullan, he explained that it had been obtained under coercion and was neither voluntary nor true. The statement of appellant Dhani Bux was also to the same effect, 7. The trial Court relying on the aforesaid evidence convicted the appellant but acquitted Hussain giving him benefit of doubt, 8. The question for consideration in this appeal is whether on the basis of the evidence, the prosecution had succeeded in proving beyond all reasonable doubt the guilt of the appellants for the offence of committing murder of Haft in furtherance of their common intention. It may be stated at the outset that there is no ocular evidence in this case. The case for the prosecution therefore rests entirely on the circumstantial evidence and retracted judicial confession of one of the appellants namely, Gullan. 9. First piece of evidence relied upon against appellant Gillian is his statement incorporated in the F. I. R. (Exh. 18) which has already been reproduced in para. 2 above. 10. The leaned counsel for the appellants contended that the statement made by the appellant and incorporated in F. I. R. (Exh, 18) was inadmissible in evidence against him on account of its exculpatory nature. The trial Court while dealing with the statement held it to be admissible in evidence and relied on it against the appellant on the ground that it was self-exculpatory inasmuch as the appellant had set up a plea of defence of property and had not admitted therein to have intentionally committed the murder of the deceased. Careful reading of the above statement would. However, show that no such plea has been raised by the appellant nor could it be available to him in the circumstances of the case. The relevant portion of the statement of appellant Gullan is as under :- "There we saw three thieves, standing at the hack of the house, inside the protection hedge. We challenged them as who were they. Out of them two thieves escaped, jumping over the hedge to the north of the house, and one thief tried to escape eastwards, and we tried to catch hold of him. The thief, trying to get himself released, started running eastwards to an open ground and a street
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leading to town. I inflicted him hatchet blows and my sons namely Hussain Bux, Ibrahim and Dhani Bux, gave him hockey, danda and lathi blows, and fell him down in the street. Thereafter upon our cries of "thief-thief" namely Abdul Rahman Memon, Muno Memon, Mangar son of Safar Gopang and other neighbourers came there, and saw the facts. Due to receiving injuries by us, the thief expired. We identified the thief as Hafeez son of Peero caste Memon resident of Kot Bahadur who was previously known to me and has expired." ' The above statement would clearly show that the deceased had succeeded in coming out of the protection hedge of the house, and was given injuries outside the hedge in the open ground while the deceased was running away towards the street leading to the town. He is also not alleged to be taking away any property. What is still more important is the fact that the dead body of the deceased was found lying on a heap of rubbish in the open ground at a distance of 12 paces from the house of the appellants. Consequently, the plea of defence of property was neither available to the appellant nor such plea could be said to have been raised by him. The statement made by appellant Gullan incorporated in the F. I. R. (Exh. 18) was clearly of an inculpatory nature and was, therefore, inadmissible in evidence. 11. Their Lordships of the Supreme Court, while dealing with the F. I. R. Lodged by the appellant wherein he admitted the killing but had pleaded right of self-defence, held in the case reported as Muhammad Bux v. State (1), the F. I. R. To be inadmissible in evidence. The relevant observations appearing at page 422 may be reproduced as under :- "At the trial, apart from the circumstantial evidence furnished by the presence of human blood on the clothes and hatchet of the appellant and the fact that he took the Investigating Officer to the precise place where the dead body lay, the prosecution relied on the report that the appellant had made to the police, the judicial confession recorded by the Magistrate and the oral confession made by the appellant to Muhammad Hayat. In appeal the learned Judges of the High Court excluded both the confession and the report and have maintained the conviction on the remaining evidence. ' Mr. Mahmud who has opposed the appeal admits that the report made by the appellant at the Police Station was rightly excluded by the High Court." 12. Again in the case reported as Muhammad Saleh v. State (2) their Lordships of the Supreme Court while dealing with the question of admissibility of F. I. R. Lodged by the accused implicating himself therein held it to be inadmissible in evidence. The relevant observations appearing at page 368 may be reproduced as under :- "Muhammad Saleh himself went to the police station to report the matter which he said was recorded at 11-30 a.m. On the 26th February. The statement was inadmissible in evidence on account of its incuplatory nature." In view of the above observations of their Lordships of the Supreme Court, the report (Exh. 18) was inadmissible and could not be used as evidence against the appellant. 13. The trial Court has also relied upon the evidence of motive. The witness who has deposed to this evidence is P. W. Tahir. He is uncle of the deceased. He stated in his evidence that about a month back appellant Gullan had come to him and had complained that the deceased was carrying on intrigue with his wife and he would, therefore, kill him. In cross-examination it was suggested to him that the appellant Gullan had one wife and all his three sons namely appellants Ibrahim, Dhani Bux and acquitted accused Hussain were married and were living with him in the same house. On the basis of the admissions, the learned counsel contends that the alleged motive was false as the wife of appellant Gullan, who was himself {{FOOT NOTE}} (1) PLD 1956 SC (Pak.) 420 (2) PLD 1965 SC 386 {{FOOT NOTE}}
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60 years old, must be 60 to 65 years old and it was inconceivable that she should be having an affair at that age. 14. This contention is, however, based on a conjecture as there is no evidence as to the age of the wife of appellant Gullan. P. W. Tahir could have no doubt thrown some light on this aspect of the case but no such question was even put to him in his elaborate cross-examination. Reliance was, however, placed on his evidence that Gullan had one wife and that all his three sons were married and have children. This, however, does not mean that Gullan married once only or that all the three sons are from his present wife. Besides, it is well known that in villages marriages take place at a young age so that it is by no means unusual for a woman of 35 or 40 years to be a grand-mother. Moreover if a false allegation of this kind had to be introduced by P. W. Talk, he could have easily made the same against a young lady of the same family as for example one of Gullan's daughters-in-law. He could not have brought a false allegation against the wife of Gullan if she was really very old. 1. Accordingly find no ground to reject the evidence of P. W. Tahir on this ground. No doubt he is uncle of the deceased, but there is absolutely no evidence that he had any animus against any one of the appellants nor any reason to give false evidence against them on a capital charge. In his statement under section 342, Cr. P. C. Appellant Gullan alleged that P. W. Tahir was annoyed with him as he had made reports against him on charges of selling charas and running a prostitution den. The allegations were put to P. W. Tahir in his cross-examination but he denied the same. S. H. 0. Faiz Muhammad likewise denied about any such complaint having been made by any of the appellants. If there was any substance in the allegation, the appellants could have easily produced a copy of such complaint or examined witnesses in defence to substantiate their allegations but they failed to do so. In spite of all that has been said above, the fact remains that this witness admitted that he had not stated in his statement before the Court of enquiry about appellant Gullan complaining to him about the illicit connection of the deceased with his wife. He also did not name any person to whom he had mentioned about it, although he claims he had told his neighbours about it. In view of the admissions made by this witness, we do not consider it safe to place reliance on his evidence. 15. The next piece of evidence relied against appellant Gullan is his judicial confession, relevant portion whereof is reproduced as under "1 and my three sons namely Ibrahim, Hussain Bux and Dhani Bux were sleeping in our house last night. At about mid-night I and my sons woke up on the barking of dog. We suspected the thieves ; therefore I took hatchet and my sons took lathis and hockeys. When we opened the door we saw three thieves standing inside the hedge. We challenged them. Two thieves escaped to north, jumping over the hedge, and the remaining third thief started moving towards us. When he came in front of us, I gave him hatchet blows and my sons gave him lathi and hockey blows. He fell down. We identified him as Hafiz Memon later on. Upon our hakats and cries the neighbourers namely Nang Gopang, Muno Memon and Abdul Rehman Memon came there. Many other people also came there later on. I and my sons tried to chase the absconding thieves, but could not trace out the foot-prints and came back. Meantime injured Hafiz expired. I went to Naushahro Foroz Police Station and lodge report. When the document was read over to him, he declared the name of deceased as Hafiz." 16. The learned counsel for the appellants contended that the confession made by appellant Gullan was involuntary and therefore inadmissible in evidence as the police had brought out the womenfolk of the confessing appellant from the house and had insulted and maltreated them as result whereof the appellant was coerced to make the confession. To substantiate the allegation,
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the learned counsel relied upon the evidence of P. W. Manoo who had admitted in his evidence that womenfolk of the appellant had been insulted and his sons were beaten up by the police. 17. It will be noticed that appellant Gullan was arrested at the police station on 21-7-1971 at 2-15 a.m. In the morning and soon thereafter at 9-15 a.m. On the same morning, was produced before the Magistrate where his confession was recorded. The evidence of the Magistrate shows that he took all the necessary precautions and recorded the confession after he had satisfied himself that he accused was making the confession of his free will. Indeed, it was not even suggested by the learned counsel for the appellants that there had been any lapse on the part of the Magistrate in recording the confession. It could not, therefore, be said that appellant was compelled to make the confession as the Magistrate made it clear to the appellant that he was not bound to make a confession and that if he made one, it might be used against him. The fact that the confession of appellant Gullan was recorded on the same day within about 9 hours of the incident, goes a long way to show that the confession was made voluntarily. P. W. Manoo in his evidence has no doubt made the admissions in cross-examination that womenfolk of the confessing appellant had been brought out and were insulted and also the sons of the appellant had been beaten whereafter appellant Gulian agreed to confess. The trial Court, however came to be of the view that the witness had made these admissions to "oblige" the appellant. The trial Court had the advantage of having seen the witness, heard the testimony and marked his demeanour and the manner in which he made the admissions in his cross-examination by the defence counsel. The estimate made by the trial Court of the evidence of P. W. Manoo is therefore, entitled to due consideration and weight. Besides the reasons for making the alleged "obliging" statement, though not given by the trial Court, are not far to seek. P. W. Manoo is a neighbour of the appellant and admits to be on visiting terms with him. Of course, being a friendly neighbour is a virtue rather than a sin ; but this virtuality stands exposed by his making false admissions. In his cross-examination he made an admission saying "when.' came out from the house and reached the vardat, I found accused Gullan armed with a hatchet, but I did not notice any blood stains on the hatchet or on his clothes". It may be pointed out that even in his statement before the trial Court appellant Gullan admitted that he was armed with a hatchet and had grappled with the deceased and therefore his clothes might have been stained with blood. Yet P. W. Manoo went on to assert that the hatchet and the clothes of the appellant Gullan had no blood stains. Besides the very conduct of appellant Gullan in reporting the incident to police and making a confession very shortly thereafter in the same terms shows that it was, made voluntarily without any pressure from the police. C A bare reading of the confession itself shows that it could not have been tutored. We accordingly find no reason to discard the confession which we hold to be voluntary and true. 18. The learned counsel for the appellants also contended that the confession…
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