Full Judgment Text & Judicial Ruling

1969 P Cr

1969 P Cr. L J 155

[Dacca]

Before Salahuddin Ahmad and Abdul Hye Chowdhury, JJ

THE STATE

Versus

DENDU alias DIANAT ALI AND ANOTHER Condemned‑prisoners

Death Reference No. 13 and Appeal No. 481 of 1968, decided on 3rd December 1968.

(a) Penal Code (XLV of 1860)------S. 302‑Sentence‑Murder committed most brutally in heart of bazar in broad day‑light Accused showing by conduct to be men of very desperate character Lesser sentence likely to act as encouragement rather than as a deterrent to potential assassins‑Death sentences confirmed.

(b) Witness‑‑-Credibility‑(Murder case),‑Eye‑witness not related to deceased‑No reason to suggest false implication of accused by witness‑Evidence of such witness cannot be disbelieved.

A. T. M. Masud Deputy Legal Remembrancer and Sultan Ahmad for the State.

Syed Md. Mohsen Ali for Condemned‑prisoners.

JUDGMENT

SALAHUDDIN AHMED, J.‑----This is a Reference under section 374 of the Code of Criminal Procedure for confirmation of the sentences of death passed upon two prisoners, namely, Dendu alias Dianat Ali and Fazu alias Suruj Ali who have been convicted and sentenced under section 302/34 of the Pakistan Penal Code by Mr. Azimuddin Ahmed, Additional Sessions Judge of Mymensingh.

The two condemned‑prisoners have also preferred an appeal from jail. The Reference and the appeal have been heard together and they are being disposed of under one judgment.

The prosecution case may briefly be stated as follows: On Friday the 1st Ashar, 1374 B. S. corresponding to the 16th June 1967, at about Asar prayer time while P. W. 1 Abdur Rahman and his son Mokram were at `dhanmahal' in Ghosegaon Bazar within Police Station Haluaghat in the District of Mymen singh where they had gone for marketing, five persons, namely, the two condemned‑prisoners, Wahed Ali (father of condemned prisoner Dendu), Saber son of the said Wahed Ali and Lal Mia chased and assaulted Mokram with daps and daggers. It is stated that Wahed Ali had ordered the other accused persons to catch hold of Mokram and Saber gave a daos blow on the head of Mokram and the last‑named ran about 1Q/12 cubits and fell on the stall of a potter. P. W. Izzat Ali who had tried to intervene was himself assaulted and injured by condemned‑prisoner Fazu and in consequence the former fell down and lost his conscious ness. All the accused persons except Wahed Ali then gave numerous blows with daos and daggers on the fallen Mokram, and thereafter all the accused ran towards the north and crossed the Netai river in the boat of P. W. 4 Abul Hossain. A number of persons present at the place of occurrence including P. W. 1 Abdur Rahman, P. W. 2 Izzat Ali, P. W. 8 Shamsher Ali, P. W. 9 Ansar Ali and P. W. 11 Ahmed Ali saw the occurrence and some of them, namely, P. W. 4 Abul Hossain, P. W. 5 Mr. M. A. Ali, a Magistrate and P. W. 10 Kendu, too, arrived at the place shortly and heard about the occurrence, and some of them even saw the accused persons leaving. P. W. 3 Abdul Khaleque, Chowkidar who was at the Board Office about 500/600 cubits to the east of Ghosegaon Bazar heard about a murder in the bazaar and came to the place of occurrence and saw the deceased lying on the ground and his father P. W. Abdur Rahman sitting by his side. Mokram died soon after the arrival of the said Chowkidar and the said Magistrate. The dead body was guarded by Chowkidar P. W. 3 along with a Dafadar and another Chowkidar throughout the night and a First Information was lodged by P. W. 3 on the next day, namely, 17‑6‑67 at 9‑30 a. m. at Haluaghat Police Station situated at a distance of fourteen miles from the place of occurrence. The Officer‑in‑charge of the police station P. W. 14 visited the place of occurrence at 5 p. m. on the same day and held inquest on the dead body and sent it to Mymensingh Morgue through Constable P. W. 15 for post mortem examination P. W. 14 also seized certain alamats from the place of occurrence. After police investigation a charge sheet was submitted against five persons including the two condemned‑prisoners under sections 148 and 302 of the Pakistan Penal Code. This was followed by a preliminary enquiry by a First Class Magistrate under Chapter XVIII of the Code of Criminal Procedure in course of which three accused persons, namely, Wahed Ali, his son Saber and accused Lal Mia were reported to have been murdered and as a result a case was started against some persons including P. W. 1 Abdur Rahman and P. W. Abdul Jabbar. The enquiry resulted in the commitment of the two condemned‑prisoners alone to the Court of Sessions to stand trial on a charge under section 302 read with section 34 of the Pakistan Penal Code. The defence while not disputing the fact that Mokram Ali (deceased) was murdered on the date of occurrence challenged the time and place of occurrence as well as the manner in which it took place. The defence set up was that the occurrence took place after dark and it was not possible for any one to recognize as to who had assaulted and murdered Mokram Ali. It was also suggested that there was no enmity between the deceased and the accused persons and that the latter were falsely implicated at the instance of Nader Ali Mondal, Chairman., Ghosegaon Union Council who had enmity with the accused persons. The learned Additional Sessions Judge, however, on a consideration of the evidence and opinion of the three Assessors who assisted him at trial felt himself unable to agree with the unanimous opinion of the Assessors that none of the accused persons was guilty of the charge framed against him, convicted and sentenced the prisoners as already stated. The condemned‑prisoners have been represented by Mr. Mohsen Ali who has been engaged by the State to defend them while the Deputy Legal Remembrancer has appeared on behalf of the State.

Mr. Mohsen Ali has contended before us that the eye witnesses are not reliable for one reason or other and that there is no direct evidence of assault upon deceased Mokram Ali by the two condemned‑prisoners. It has also been contended that some material witnesses were not examined in the case and no explanation has been given for their non‑examination and such an inference adverse to the prosecution should have been drawn against the prosecution. Mr. Mohsen Ali has drawn our atten tion to the fact that the name of condemned‑prisoner Fazu does not find mention in the First Information Report. Lastly Mr. Mohsen Ali has addressed us on the question of sentence.

It appears that there are six eye‑witnesses of the occurrence, namely, P. W. 1 Abdur Rahman father of the deceased, P. W. 2 Izzat Ali, P. W. 8 Shamsher Ali, P. W. 9 Ansar Ali, P. W. 11 Ahmed Ali and P. W. Abdul Jabbar whose evidence before the committing Magistrate was brought on record under section 33 of the Evidence Act.

So far as the last‑mentioned witness is concerned, namely, P. W. Abdul Jabbar, it appears from the order sheet of the Sessions Court that his evidence was brought on record under section 33 of the Evidence Act at the instance of the Assistant Public Prosecutor after the accused persons had already been examined under section 342 of the Code of Criminal Procedure and the Court had discharged the Assessors. This is evident from order No. 6 dated 16‑9‑68 of the learned Additional Sessions Judge which reads as follows :‑

"P.W.15 Hafizuddin C/669 com. declined by the defence. Prosecution evidence closed. Statement of accused under section 342, Cr. P. C. also recorded by this Court each of whom pleads not guilty and declined to adduce any evidence in defence. Heard argument in both side in length Court then sums up the case to the assumes and recorded the opinions individually as per separate sheets kept with the record. Assessors are then discharged. At this stage Court rose for the day and the case adjourned to 20‑9‑68 for delivery of judgment. On prayer of the learned A. P. P. L. C. deposition of P. W. Abdul Jabbar put in under section 33 of the Evidence Act and cancelled the bail of the accused and be kept in custody till the date of judgment."

The Deputy Legal Remembrancer has contended that the said order as a whole indicates that the evidence of P. W. Abdul Jabbar was brought on record under section 33 of the Evidence Act in proper time and that it was due to some inadvertence that the sequence puts the fact of the admission of the evidence of P. W. Abdul Jabbar under section 33 of the Evidence Act towards the concluding portion of the order. We are unable to accept this contention not only because of the aforesaid order but also for the reason that although the evidence of other eye‑witnesses were put to the accused while they were being examined under section 342 of the Code of Criminal Procedure by the learned Additional Sessions Judge, the evidence of P. W. Abdul Jabbar was not adverted to at all. We are, therefore, unable to rely upon the evidence of P. W. Abdul Jabbar.

The first eye‑witness examined by prosecution is P. W. Abdur Rahman, father of deceased Mokram Ali. His presence at the place of occurrence along with his son can hardly be doubted. The suggestion put to him in cross‑examination: "Not a fact that I only saw the accused running away after the assault", also indicates that P. W. Abdur Rahman was present at the place of occurrence about the time of occurrence. Besides there are other good evidence in support of the fact that he was indeed present at the place of occurrence at the relevant time. Although P. W. Abdur Rahman has supported the prosecution case, he has made certain inconsistent statements on material points, and therefore, we have subjected his evidence to a close scrutiny and have not accepted any part of his evidence which does not find corroboration from other reliable evidence. Two of the material inconsistencies are that although before the committing Magistrate P. W. Abdur Rahman had stated that Saber (since reported to be murdered) gave a dao blow on the head of Mokram Ali and did not assign any specific act to condemned‑prisoner hazu with reference to the deceased, the witness not only did not assign any specific act to Saber but mentioned prisoner Fazu as the person who gave a dao blow on the belly of deceased Mokram. Again although before the committing Magistrate the witness had stated that Special Magistrate Mr. A. Ali (P. W. 5) instructed the former to go to Durgapur to lodge an `ejahar', before the Sessions Court he said that he had received no such instruction from the said Magistrate. We, however, think that P. W. Abdur Rahman can be relied on to prove the place and time of occurrence as well as the fact chat the two prisoners were concerned in the occurrence and they all joined in the assault upon Mokram Ali. His evidence also proves that when P. W. Izzat tried to intervene, he was assaulted with a dao by condmned prisoner Fazu.

P. W. 2 Izzat Ali was himself injured while trying to intervene on behalf of deceased Mokram Ali. The witness has proved that all the accused were present at the time of occurrence and that Saber assaulted the deceased with a dagger in the stomach, and as the witness tried to intervene, prisoner Fazu gave him a dagger blow under the right jaw. The mark of injury was shown to the Sessions Court. The witness fell down but before that, he had noticed all the accused persons including the two condemned‑prisoners follow the deceased. The witness had denied that it was dark at the time of occurrence and that he could not recognise the accused and that he was deposing falsely. There does not appear to be any relationship between this witness and P. W. Abdur Rahman. The latter has denied that P. W. Izzat Ali was related to him. No specific reason has .A been suggested as to why P. W. 2 should falsely implicate the two prisoners. We on our part do not see any reason to disbelieve him.

P. W. 8' Shamsher Ali has proved that he was present at the time of occurrence in `dhan mahal' of the said bazar and that he heard the cry, of Mokram and saw all the five accused persons chasing and assaulting Mokram. The witness also said that Saber, Fazu and Lalu also assaulted Mokram and that Wahed Ali had ordered the accused to assault the deceased. The witness also saw prisoner Dendu with a dao in his hand. He has proved that when Izzat Ali tried to intervene, the latter was assaulted and that he reported to the former that Fazu had struck Izzat. Tire witness saw Mokram's father at the place of occurrence. The witness denied that he did not see the assailants and that he was deposing falsely as tutored by Nader Ali, Chairman. The witness has also denied that the occurrence took place after dark and that he could not recognise any assailant. There is no basis for the suggestions put to this witness and we find no reason to, disbelieve him.

P. W. 9 Ansar Ali was also present at Ghosegaon Bazar for marketing and he saw Mokram, his father and P. W. Izzat Ali there. The witness saw Mokram being assaulted by Fazu, Saber, Dendu and Lalu on the order of Wahed Ali with daggers and daos. The witness says that Mokram ran and fell near the shop of a kumar (potter) and even there Mokram was again assaulted by the said assailants. He says that as P. W. Izzat Ali tried to intervene, prisoner Fazu assaulted him with a dagger, and Izzat Ali fell down. The witness has stated clearly that Mokram Ali was assaulted by all the assailants. Witness leas denied his relationship with either Mokram Ali or his father and lie has stated that prisoner Dendu had a dao and Fazu had a dagger. The witness deified that the occurrence took place at night and that he did not see any assailant. No reason has been suggested as to why he should falsely implicate the prisoner. We, therefore, see no reason to disregard his evidence.

P. W. 11 Ahmed Ali was sitting in his shop in the said bazar when he saw all the rive accused persons chasing deceased Mokram. Mokram Ali fell down near a `Path' shop and all the accused except Wahed assaulted the victim with dao and daggers. The witness saw Mokram's father weeping by tile side of his son and also saw P. W. Izzat Ali in an injured condition. The witness denied that the occurrence took place after dark or that nobody knew about the names of the accused that evening. The witness also denied that he was deposing falsely. No reason was suggested to him as to why he should depose falsely against the prisoners. We accordingly find no reason to disbelieve his evidence.

P. W. 4 Abul Hossain plies a `godara' boat in Netai river besides Ghosegaon Bazar. He deposed that on the date of occurrence at about 4 p. m. accused Dendu, Saber, and Wahed Ali crossed the river in his boat and that Saber had a big dao. It appears that although before the committing Magistrate he had also mentioned the names of accused Lalu and Fazu, he did not mention them before the Court of Session. The witness denied that Dendu ever slapped him or that the witness did not recognise the accused persons. The witness also denied that he had been tutored by the Chairman or anybody else. The evidence of the witness appears convincing and there is no justifiable reason to disbelieve him.

P. W. 5 Mr. M. A. Ali, Magistrate was at the time of occurrence a Special Officer for the Gayos. Having received some information he went by his jeep to the place of occur rence and found Mokrram lying unconscious and gasping. The witness found more than forty to fifty people near the injured people. The witness has said that although he tried to get a dying declaration from the injured man, he failed to do so because the deceased never regained consciousness. The witness said that Mokram died in his presence shortly after his arrival. The witness has also stated that he met P. W. Izzat Ali at a pharmacy inside the bazar in an injured condition and that Izzat told him that the former sad seen Mokram being chased by the assailants with daos etc. and that when Izzat Ali went to stop the assailants, he was himself assaulted with a knife. The witness also saw Ex‑Chairman Ali Hossain of the locality and some Chowkidars present there and he instructed the Ex‑Chairman to arrange to guard the dead body. The witness denied that he had no talk with Izzat Ali and categorically stated that he was actually with him for a pretty long time. We see absolutely no reason to disbelieve this evidence nor any reason has been suggested to disbelieve him.

P. W. 10 Kendu has stated that he saw Mokram Ali lying on the ground and accused Dendu, Saber, Lalu, Fazu and Walled Ali going away. The witness also saw deceased's father sitting by his son and weeping, and the witness had denied that he did not see‑any accused or that it was already evening. The defence suggested no reason to him for deposing falsely against the prisoners.

P. W. 14 the Investigating Officer visited the place of occurrence on 17‑6‑67 at about 5 p. m. and found the dead body covered with a tin (as it had rained heavily). The investigating officer seized blood‑stained pieces of an earthen pot and blood stained earth along with grass and mud.

P. W. 6 Dr. M. A. Gani is the teacher‑ cum‑compounder -cum‑clerk at Lytton Medical School at Mymensingh. He held the post‑mortem examination on the body of Mokram Ali aged about thirty years brought and identified to him by P. W. 15 Constable Hafizuddin on 19‑6‑67 at 2 p.m. On examination the witness found no less than eleven incised injuries of the following description:‑

"(1) One incised wound 2" x " bone cut over the frontal bone,

(2) One incised 6" x 2" x brain cut over the right parietal bone.

(3) One incised 2" x " x bone cut over the right parietal near the sagital guture.

(4) One incised 3" x 1" bone cut over the left parietal.

(5) One incised wound 1" x 1" may deep below the lower eye lid of right eye.

(6) One incised wound 6" x 2" x bone cut over the right shoulder.

(7) One incised wound 2 " x 1" muscle deep in front of left forearm at its middle.

(8) One incised 4" x " abdominal cavity deep in the right hypochondrioc region with prolapse of coils of small intestines.

(9) One incised wound 6" x 1" bone cut above the right buttock.

(10) One incised 4" x 1" muscle deep behind left scapula.

(11) One incised wound 1" x " muscle deep in the left side of the back of thoracic spines. On dissection, extra vascated blood clots were found underneath the scalpurti resisted washing. The right parietal bone, duramater, parietal lobe of brain were found cut. Extra denal and subdenal haemorrhage was found. The head of right hurmcrus, peritoneum, liver, and phloric and of stomach was found cut. The iliac cest on the right side was found cut, 2 lbs. of dark blood was found in the abdominal cavity. All other organs were fairly decomposed. Stomach was empty."

In the opinion of the doctor death was due to shock and haemorrhage as a result of the aforesaid injuries which were anti‑mortem and homicidal in nature. The witness further said that the injuries were sufficient in the ordinary course of nature to cause death and could be caused by sharp‑cutting weapons such as daos. The witness has hardly been cross‑examined by the defence.

On a consideration of the evidence we find that the prosecu tion has proved beyond any reasonable doubt that Mokram Ali died as a result of the injuries found on his person which were inflicted on him on the date and at the time and at the place of occurrence as alleged by the prosecution and in the manner stated by it. The defence has failed to prove that any one of the witnesses has deposed at the instance of Nader Ali, Chairman or that there was any valid reason for a witness to depose falsely against the two prisoners.

Although the evidence shows that there was a large number of persons present in the `heat' at the time of occurrence and even era `dhan mahal' 25 to 100 persons were present, the defence has not been able to name any body who was present at the place of occurrence whose evidence might be material and yet he was not produced or examined by the prosecution. We, therefore, do not think that there is any basis for the defence claim that adverse inference should be made against the prosecution for non‑examination of any such material witness.

Coming to the individual cases of the two prisoners we find that although both the prisoners leave been named by the witnesses as having participated in the armed assault upon deceased Mokram Ali, the evidence is lacking as to what injury was caused by one or the other of the two prisoners. It is true that the name of prisoner Fazu does not find place in the First Information Report lodged by Chowkidar P. W. 3 Abdul Khaleque. We, however, find on reference to the evidence of P. W. 3 that he tried to suppress certain facts. The first informa tion report not having been lodged by an eye‑witness of the occurrence, the omission of prisoner Fazu's name does not appear to be of much significance particularly in view of the fact that all the eye‑witnesses have consistently proved that Fazu was concerned in the assault upon deceased Mokram Ali. In this regard particular mention may be made of the evidence of P. W. 2 Izzat Ali who was himself injured by prisoner Fazu. We, there fore, have no doubt whatsoever abut Fazu's presence at the occurrence and his complicity therein. We have accordingly come to the conclusion that the prosecution has amply proved the charge against the two prisoners beyond any reasonable doubt.

There remains the question of sentence. Mr. Mohsen Ali has asked us to consider three things by way of extenuation in favour of the condemned‑prisoners, namely, (1) that of the five accused concerned in the crime three lave already been murdered, and therefore, so far as the spirit of vengeance on the part of the victim's relations is concerned, it has been amply satisfied; (2) the two condemned‑prisoners are the son and grand‑son of accused Wahed Ali who has since been murdered; Mr. Mohsen Ali has, therefore, contended that the Court should consider whether some more persons of the same family should suffer the extreme penalty of law; and (3) that the prosecution has failed so prove the motive sufficiently strong to impel the prisoners to commit murder. Mr. Mohsen Ali has contended in this context that the prisoners only acted on the orders of Wailed Ali since murdered.

We have given our anxious consideration to these points. We, however, feel unable to accept them as extenuating circum stances for the purpose of commuting the sentences of death passed upon the two prisoners. The alleged murder of Walled Ali, Saber and Lath has not been proved although it appears there is already a case started for the said murder. The prosecu tions has in fact proved some motive, namely, that there was a dispute between the deceased and the accused‑prisoners over the properties of Hindu migrants of the locality. The records show that there was perhaps a greater motive for the murder, but for reasons best known to the complainant this motive has not been adverted to in evidence. The apparent reason for such conduct is that the complainant who is an accused along with P. W. Abdul Jabbar in the case instituted over the murder of Wahed Ali, Saber and Lain might have come to some sort of arrangement in regard to the two cases. This is evident from the flagrant manner in which complainant P. W. Abdur Rahman has made inconsis tent statements before the Court of Session with reference to his statements before the committing Court. Be that as it may, the murder has been committed most brutally in the heart of a bazar in broad day‑light by the prisoners, who have shown by their conduct that they are men of very desperate characters. Any lesser sentence may act as encouragement rather than as a deterrent to the potential assassins. Such an impression in our opinion should not be allowed to go round in the interest of peace and security of the society. We, therefore, have no other alternative but to confirm the sentences of death passed upon each one of the two condmned‑prisoners and we indeed consider it our duty to do so in the facts and circumstances of the case.

We accordingly dismiss the appeal of both the prisoners and accept the Reference and confirm the sentence of death passed on each one of the two prisoners Dendu alias Dianat Ali and Fazu alias Suruj Ali.

Before we part with this case, however, we should like to observe that although the reasons advanced on behalf of the two prisoners for passing a lesser sentence were not good reasons for a Court of law to accept, we think th‑t they may be sympathetically considered by the Provincial Government if they desire to do so for the purpose of commutation of sentences of death passed on them.

We should also like to observe that the learned Additional Sessions Judge has not approached the case with the amount of care that was required of him. As we have already noticed the learned Judge admitted the evidence of…

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