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Petitioner: MACHIA AND 2 Other VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Malik Muhammad Akram, Muhammad Yaqub Ali Khan, Durab Patel Title: MACHIA AND 2 Other vs THE STATE Case No.: Criminal Appeal No. 26 of 1974 Criminal Appeal No. 750 of 1968 Date of Judgment:1976-08-03 Reported As: PLD 1976 Supreme Court 695 Result: H.
JUDGMENT
JUDGMENT DORAB PATEL, J.----This is an appeal against a judgment of a Division Bench of the Lahore High Court and the relevant facts are somewhat compli--cated. Four persons were murdered in Lyallpur District on the morning of 1st July, 1964. Three of the victims Bahoo, Noora and Riaz were brothers whilst the fourth victim Anwar was their nephew. According to the prosecu--tion, ten or twelve years earlier, there had been a dispute over water rights between the said Bahoo and his brothers on the one hand and Sardool (deceased) the brother of the appellant on the other. Bahoo deceased and his brothers were tried for the said Sardool's murder, but, as they were acquitted, the prosecution case is that the appellant Sohni was waiting for an opportunity to avenge his brother's murder, and this opportunity came on 1-7-1964, because the for victims of the occurrence and P. Ws. Bahadur, Attaoo and Shahabal, brothers of the said Baboo, Anwar and Riaz deceased, as well as P. W. Sajwara, a cousin of the said deceased, were on their way to attend the Court of a Magistrate in Kamalia for proceedings under section 107, Cr. P. C. Further, according to P. Ws. Babadur, and others, these proceedings had been instituted against the family of P. W. Bahadur by the appellant Sohni, therefore, as this appellant knew that they would be leaving their homes to go to Kamalia, he conspired with the other accused to ambush them. Bahoo deceased was going to the Court with P. W. Bahadur and as they approached the garden of one Hafizullah in Killa No. 18 of Square No. 48 of Chak No. 263/G. B., P. W. Bahadur, who at that time happened to be a little ahead of his brother Baboo, saw the appellant coming armed with other assailants. So, without thinking of his brother, he ran and took shelter. The appellant Sohni was accompanied by his son Machhia, and his nephew Bahli (one of the appellants before us) and according to the F. 1. R. Which he (P. W. Babadur) lodged, the appellant Sohni was also accompanied by his nephew Nukra. By Sardool son
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of Suhla and by two other unknown persons who were later identified as Muhammad Yar alias Nama and Ramzan. The assailants were heavily armed. The appellant Machhia had a barchhi whilst Sardool had an hatchet. All the other assailants were armed with rifles or guns, and the appellant Sohni, who was leading them, gave a lalkara that he had come to avenge his brother's death. Bahoo (deceased) tried to run, but the assailants killed him by firing at him and also inflicting hatchet and spear blows to him. The assailants had come on horses and after they had gone away, P. W. Bahadur came out from where he was biding and saw that his brother was dead. But as he heard a gun report and as he knew that his other brothers were also on the way to Kamalia and might have been attacked, he rushed in the direction of Chak No. 262/G-B. As he reached the bank of a canal, he saw his brother Anwar lying dead. And, according to the F. I. R., his brother P. Ws. Atta Muhammad and Shahabal informed him that the same assailants bad murdered Anwar. As they also told him that they had heard an alarm from the side of Chak No. 261/G. B., P. W. Bahadur went towards that Chak and he found that his brother Noora was lying murdered. He learnt that Noora had been murdered by the same assailants. He then ,decided to go and see what had happened in his house, but, on the way, his brother Sohni informed him that their brother Riaz had been murdered in .Chak No. 260/G. B. Near the house of one Chiragh. He, therefore, decided to go to the police station, and his F. I. R. Was recorded by M. H. C. Ghulam Haider, at Rajana Police Station, Lyallpur. P. W. Nazir Ahmad, S. I. Police Lines, Lyallpur who was informed of the murders` by M. H. C. Ghulam Haider, commenced investigations, but as the investigations were prolonged, other Police Officers were also associated with these investigations. It is, however, sufficient to state here that the appellant Machhia and Sardool son of Suhla were arrested on 5-7-1974 and in due course the barchhi and the hatchet used by them in the occurrence, were produced at their instance. The shirts which they were wearing were also blood-stained, therefore, they were secured and forwarded to the chemical analyser with the crime weapons. All these recoveries were found to be stained with human blood. Next, as to the appellant Bahli, he was arrested on 23-10-1966 near Pull Bhawani in the area of Police Station Harrappa, and as he was in possession of an unlicensed gun and cartridges the same were secured. The appellant Sohni was arrested in Jhang District on 20- 12-1966 and the rifle and cartridges which he had in his possession were secured. Finally, although Ramzan and Muhammad Yar have not filed appeals, I would point out here that the former was arrested on 16-2-1965 and the latter on 28-4-1966, and a rifle and cartridges were recovered from the former. After completing the investigations, the appellants and others were challaned together with Moharram, the grandson of Sohni (who died during the course of the trial.), and Farid and Nazu, the brother and nephew of the appellant Sohni respectively. Further all the accused were charged under section 120-B read with section 302, P. P. C. For the for murders and the appellants together with Moharram, Ramzan, Muhammad Yar and Sardool son of Suhla were also charged under section 148, P. P. C. And under -section 302/149, P. P. C., and a charge under the Arms Act was also framed against the appellant Machhia. In support of its case, the prosecution examined eye-witnesses to prove each of the for murders, but,, contrary to P. W. Bahadur's statement in the F. I. R. None of the eye-witnesses, not even P. W. Bahadur, stated that Nukra was even present at the time of the for murders, but in his place the eye-witnesses implicated the said Moharram. The prosecution also examined two witnesses, including a relation of the appellant Sohni, who both said that on the day prior to the murders, they had overheard the appellant "Sohni telling the other accused who was related to him that they should avenge his brother's murder but that Nazu, Nukra and Farid should not take part in the actual killing. Both these witnesses further stated that they had, therefore, immediately gone to Bahoo deceased and warned him that he and his brothers "were going to be attacked by the
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accused party."' The prosecution also produced evidence about the recovery of blood--stained clothes and weapons from Sardool and from the appellant Machhia, and the recovery of fire-arms from the appellants Sohni and Bahli and from Ramzan and Muhammad Yar. The various Police Officers who had conducted the investigations recorded statements, arrested the accused and effected recoveries from them, were also examined, as well as the Magistrates who had supervised the identification tests of Ramzan and Muhammad Yar. The plea of the appellants and of the other accused was one of total denial and it is sufficient to state here that according to them they had been falsely implicated on account of enmity, and further all the accused denied, the recoveries alleged to have been made from them. They also denied that they had absconded, but the appellant Bahli admitted that he had not been at his village because he bad taken his father to Sahiwal for treatment,. Further Ramzan and Muhammad Yar also challenged the validity of their identification tests, but none of the accused produced any evidence in their defence. The learned Additional Sessions Judge, Lyallpur, who heard the case, acquitted Fareed, Nukra and Nazu. None of the eye-witnesses implicated these three accused in the commission of the actual murders. The only evidence against them was on the charge of conspiracy, and this evidence was rejected as false. Next, as to the for murders, the prosecution had examined witnesses for each murder, and the learned Additional Sessions Judge held that the prosecution case was sufficient to prove the guilt of the appellants and of Sardool, Ramzan and Muhammad Yar for the murders of Bahoo de--ceased, Anwar deceased, Noora deceased and Riaz deceased because the ocular evidence of these for murders was corroborated by the evidence of motive, by the evidence of the recovery of the crime weapons (except for the recovery of a revolver from Ramzan which was held to be false) arid by the fact that the appellants as well as three other accused had absconded. He, accor--dingly, convicted the appellants and the three accused under section 148 read with section 302/149, P. P. C. However, on the ground treat there was enmity between the parties, he sentenced them to transportation for life and to a fine of Rs. 1,000 each or in default three years' rigorous imprisonment The appellant Machhia was also convicted under the Arms Act and' sentenced to one year's rigorours imprisonment. The sentences were to run concurrently. The appellants filed an appeal in the Lahore Seat of the West Pakistan High Court against their convictions and they further stated that the appeal was filed on behalf of the other three accused also. A revision was also filed for the enhancement of sentences passed against the appellants and the other accused by P. W. Bahadur son of Allah Yar. But by a judgment dated 2-3-1972, a Division Bench of the Lahore High Court dismissed both the revision filed by P. W. Bahadur as well as the appeal filed by the appellants. However, whilst the learned Additional Sessions Judge had convicted the appellants and other three accused for all the for murders, the learned Judges of the High Court acquitted them on the charge of the murder of Baboo deceased but upheld their convictions for the murders of Anwar deceased, Noora deceased and Riaz deceased. Hence this appeal. Mr. Bilal advanced a legal objection to the trial of all the accused in the case. This was that all the accused had been tried for for murders, in addition to other charges, in the same trial, therefore, the trial was illegal, because it was contrary to the mandatory provisions of section 234 of the Criminal Procedure Code, which prescribed that not more than three offences of the same kind committed in the space of one year could be tried together. But the charge against all the accused was also under section 120-B of the ' Pakistan Penal Code, and section 235 of Cr. P. C. Expressly permits the trial of a person for "more offences than one" if the offences have been committed in the course of the same transaction. And further as nine persons were tried together, the provisions of clause (d) of section 2.39, Cr. P. C. Would also be relevant.
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Now sections 234 to 239, Cr. P. C. Are to be found in Granter XIX of the Criminal Procedure Code under the part which deals with the joinder of charges, and section 233, Cr. P. C. Read;--- "233. Separate charges for distinct offences.-For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. Section 234, Cr. P. C. Reads; "(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences (whether in respect of the same person or not), he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) .------------------------------------------------ ". Section 235, Cr. P. C. Reads: "(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) Offences falling within two definitions.----If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences, are defined or punished the person accused of them may be charged with, and tried at one trial for, each of such offences. (3) Acts constituting one offence, but constituting when combined a different offence.---If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any one or more, of such acts. (4) Nothing contained in this section shall affect the Pakistan Penal, Code, section 71." Section 236, Cr. P. C. Deals with the situation in which it is doubtful', what offence has been committed whilst the next two sections deal with the question of conviction. Finally, section 239, Cr. P. C. In so far as it is relevant roads; "239. What persons maybe charged jointly.-The following persons may' be charged and tried together, namely (a) persons accused of the same offence committed in the course of the same transaction ; (b) .--------- (c) .---------- (d) persons accused of different offences committed in the course of the' same transaction; (e) . ---------------------------------; (g) . -----------------------; As the appellants as well as all the other accused in the case under appeal were charged under section 120-B, P. P. C., the obvious question which arises for determination is whether the case under appeal fell under section 234 Cr. P. C. Or under clause (d) of section 239, Cr. P. C. And in order to bring the case under the latter provision, the prosecution had to show that the offences for which the appellants and all the other accused were tried had been committed by them "in the course of the same transaction". TV further question then is of the meaning of the words "the same transaction". And as observed by Lord Wright in Babulal Chaukjrani v. King-Emperor (AIR 1938 P C 130) the question as to what constitutes the same transaction must be determined "on the basis of what appears on the face of the accusation". What appears on the face of the accusation in the instant case is that the appellants had conspired with the other accused to commit a series of offences in order toy wreak vengeance on the family which was responsible for the murder of the brother of the appellant Sohni. Would this not prima facie mean that the offences had been
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committed in the course of the same transaction? The charges in Babulal's case also included the charge under section 120-B, P.P.C., as in the instant case, and Lord Wright, who pronounced the judgment of the Judicial Committee, observed at page 133; "Whatever scope of connotation may be included in the words 'the same transaction', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt tacts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pur--suance of it." I am, therefore, satisfied that there was no defect in the trial of the appellants. Mr. Bilal then submitted that section 235, Cr. P. C. Was subject to section 234, Cr. P. C., therefore a person could not be tried for more than three offences even though they had been committed in the same transaction. But, the question before us is of clause (d) of section 239, Cr. P. C. And not merely of section 235. Cr. P. C. However, if section 235, Cr. P. C. Is subject to section 234, Cr. P. C. Then section 239. Cr. P. C. Also should be subject to section 234. Cr. P. C. Now these sections follow section 233, Cr. P. C. And are exceptions to the general rule laid down in section 233, Cr. P. C. That a person shall be tried separately for each charge. Further, sections 234 and 235, Cr. P. C. Deal with different situations and are independent of each other. I am fortified in my opinion by Lord Wright's judgment in Babulal's case. There, with reference to clause (d) of section 239, Cr. P. C. Lord Wright observed; "The clause is expressly an exception from section 233 and enables a plurality of offences to be dealt with in the same trial. But it does not import either expressly or by implication the limitation set out in section 234 according to which not more than three offences of the same kind committed within the space of 12 months can be tried together or the limitation contained in section 235 (1), under which more offences than one committed by the same person can only be-- tried together if they are in one series of acts so connected together as to form the same transaction, in which case there is no specific limit of number. Nor is there any limit of number of offences specified in section 239 (d). The one and only limitation there is that the accusation should be of offences 'committed in the course of the same transaction'." In my humble opinion, these observations state the correct law and I am unable to agree with the view taken by the East Pakistan High Court in Abdus Salam v. The State (PLD 1969 Dacca 425) and in Arshad Ali Khan v. The State (PLD 1960 Dacca 41) on which Mr. Bilal relied. Turning now to the merits of the case, I would recall here that according to the Sessions Court, the ocular evidence against the appellants and the other accused was corroborated by the prosecution case for motive against them, and that motive was the desire of the appellant Sohni to avenge his brother's death. But as motive is double edged weapon Mr. Bilal submitted that the Sessions Court had erred in ignoring this aspect of the case. The submission is correct but the question was re-examined in the High Court, and the learned Judges have rightly pointed out (I say so with respect) that the ocular evidence was strongly tainted by enmity. This is because after the murder of the brother of the appellant Sohni, one Lai, the nephew of P. W. Babadur, who lodged the F. I. R. In the instant case, was murdered in 1957 or 1958, and the cousins of the appellant Sohni were tried for that murder but were acquitted. Then one Arif, another cousin of P. W. Babadur was murdered. Finally one Afzal Gaddi of Chak No. 264 was murdered shortly before the occurrence and the section 1.07, Cr. P. C. Proceedings instituted against P. W. Bahadur and his brothers bad been instituted, according to P. W. Bahadur, at the instance of the appellants, therefore, it is obvious that P. W. Bahadur and the other eye-witnesses of the for murders were extremely inimical to the appellant Sohni and his family. As admitted by P. W. Attaoo in his cross-examination "the accused are our staunch enemies". And the hatred of the eye-witnesses towards the appellants is proved
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by the fact that P. W. Bahadur bad falsely implicated Nukra. Farid and Nazu. The ocular evidence is, therefore not fit to be accepted without strong corroboration by independent and reliable evidence, and the question in this appeal is whether there is such corroboration of the ocular evidence. The first of the for murders was that of Bahoo deceased, and the prosecution examined P. Ws. Bahadur and Rajbah as eye-witnesses of the occurrence, but P. W. Rajbah had not been named as an eye-witness by P. W. Bahadur in the F. I. R. The Sessions Court held that P. W. Bahadur's failure to mention P. W. Rajbah's name in the F. I. R. Was because P. W. Bahadur had not seen the occurrence and had falsely claimed to be an eye-witness. It, however, accepted the evidence of P. W. Rajbah and convicted the six accused for this murder on the basis of P. W. Rajbah's evidence. The High Court in a careful appreciation of evidence held that P. W. Rajbah's evidence was also not fit to be believed, and, unlike the Sessions Court, it rightly did not place any reliance on the evidence of the recoveries including the recovery of firearms etc., therefore, it gave the benefit of doubt and acquitted all the accused of the murder of P. W. Bahoo deceased. Accordingly, the question before us is whether the prosecution has proved its case for the other three murders, and I would now briefly turn to the prosecution evidence in this respect, but as the case against Ramzan and Muhammad Yar also turns on the question of their identification, I will examine this aspect of the case after examining the ocular evidence of the murders. The prosecution examined P. Ws. Attaoo, Shahabal and Saadullah as eye-witnesses of the murder of Anwar deceased. P. W. Attaoo and Shahabal said that they were going to Kamalia with Anwar deceased to attend the case against them in the Court of the Magistrate at Kamalia and when they reached the bank of the canal they saw "seven persons on for mares racing towards us. Anwar deceased was a little behind us". Both the witnesses then said that they identified the assailants as their enemies so, without any regard for Anwar and without even giving him a warning, they ran for safety by wading through the canal and took shelter behind some trees. Similarly. P. W. Saadullah said that when he saw the assailants coming be was on the canal service road, but Anwar deceased was "at a distance of one and a half killa from him". Therefore, he took shelter behind some trees. Further, according to the three eye-witnesses except for Sordool and Machhia the other five assailants were armed with rifles and guns, and these five assailants first fired at Anwar deceased and after Anwar had fallen down, Sardool and Machhia gave him kulhari blows and barchhi blows. Then the assailants rode away, and after some time P. Ws. Attaoo, Shahabal and Saadullah came out of thier hiding place. P. W. Bahadur arrived after some time and they informed of what had happened, and he informed them of Bahoo's murder. According to the post-mortem of Anwar deceased, the deceased has eight wounds of which only one was a gunshot wound. The other wounds were stab wounds and incised wounds. These wounds are consistent with then evidence of the eye-witnesses that two of the assailants had hit the deceased with a barchhi and a kulhari. But the medical evidence is inconsistent with the unanimous assertion of the three eye-witnesses that all the five assailants had fired at the deceased. This discrepancy escaped the attention of the trial Court, whilst the learned Judges of the High Court were of the view that it was not material because the three eye-witnesses had, in order to save their own lives taken shelter behind trees. Therefore, they were not in a position to see how exactly the deceased had been killed. But the discrepancy is not between what the witnesses saw and the medical evidence but between what they beard and the medical evidence. According to the map (Exh. P. B.), prepared by P. W. Hidayatullah, the witnesses were only twenty or thirty karoms from the place of occurrence, whilst P. W. Attaoo claimed to have been only five or ten karams away. Be that as it may, whether the witnesses were hiding at a distance of five or thirty karams in view of what they said there was no possibility of confusing a shot or a couple of shots with the shots fired by all the five assailants.
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There are also other circumstances which cast doubt on this ocular evidence. According to the prosecution. P. Ws. Sultan and Hameed had warned P. W. Babadur that the appellant Sohni and the other accused were planning to avenge the murder of Sohni's brother. Therefore, it was unlikely that Anwar would go alone to Kamalia. Further, both P. Ws. Attaoo and Shahabal said that they and Anwar had left together for Kamalia, but that at the time of the murder they were one and a half kills ahead of Anwar. This is very difficult to believe, and it is significant that these witnesses had not said so in their police statements. It is also difficult to believe that these witnesses, who were the brothers of Bahoo, would have been spared if they bad been anywhere around the place of the murder. It is true that P. W. Saadullah might have been spared because he was also related to the appellant Sohni. But the difficulty in accepting the evidence of this witness is that his name was not mentioned by P. W. Bahadur in the F. I. R. And, as the witness was also related to the appellant Sohni, the question of his presence required careful examination. The learned Judges of the High Court appear to have been of the view that the witness was a disinterested' witness, because be was related to one of the appellants, and as to the omission of his name in the F. I.…
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