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Petitioner: ALI VS Respondent: THE STATEHonorable Justice Muhammad Afzal CheemaA. K. Brohi,Muhammad Haleem
1969 P Cr
1969 P Cr. L J 28
[Karachi]
Before Muhammad Afzal Cheema and Muhammad Gul, JJ
ALI AND 3 OTHERS-------Appellants
Versus
THE STATE‑---‑Respondent
Criminal Appeal No. 237 and Confirmation Case No. 60 of 1967, decided on 27th September 1961.
(a) Criminal Procedure Code (V of 1898)-------Ss. 375 & 428 --Additional evidence‑Examination of Ballistic Expert sought for proving his report with regard to firing of crime emetics from guns recovered from accused (not formally proved in trial Court) Recovered guns and crime empties never made into sealed parcels to obviate their being tampered with till received in Forensic Science Laboratory‑Direct evidence produced in case suffering, from infirmities‑Evidence of Expert relevant only as corroborative of such evidence‑Examination of Expert, held, futile in circum stances of case.
Ghulam Muhammad v. The State P L D 1957 Lah: 263; Ali and another v. Crown P L D 1952 F C 71 and Nawab Yousuf v. The State P L D 1961 Kar. 150 ref.
(b) Evidence‑------Corroboration‑Direct evidence otherwise false or unreliable‑No amount of corroboration, held, can rehabilitate such evidence.
(c) Witness‑-----Interested witness ‑ Reliability of interested witness and acceptance of particular circumstance as furnishing corroboration and sufficiency or otherwise of their probative force Matters depending on circumstances of each case.
In regard to the reliability of an interested witness as also on the acceptance of a particular circumstance as furnishing corroboration, and the sufficiency or otherwise of their probative force are matters which depend on the circumstances of each case which taken together give rise to an over‑all picture clear and convincing or blurred and doubtful, as the case may be.
Nazir and others v. The State P L D 1962 S C 269 ; Sardar Ali v. The State P L D 1967 S C 217 and Niaz v. The State P L D 1960 S C 386 ref.
(d) Penal Code (XLV of 1860)--------S. 302‑Murder‑Evidence --Juti (shoes) recovered from place of occurrence Prosecution not examining any witness on point of ownership of Juti‑Mere fact that it fitted accused‑Held, would scarcely prove that it belonged to him‑Such recovery entirely unavailing as corroborative evidence Evidence Act (I of 1872), S. 9.
(e) Penal Code (XLV of 1860)-------S. 302‑Murder‑Evidence Corroboration‑Mashirnama prepared with regard to guns recovered from accused not attested by any member of public‑Guns and crime empties never made into sealed parcels‑Recovery, held, entirely unavailing as corroborative evidence‑Not safe to place implicit reliance on its genuineness.
A. K. Brohi, assisted by Abdul Hafeez Memon and Muhammad Akbar Khan for Appellants.
Muhammad Haleem Asstt. A.‑G. for the State.
Dates of hearing : 29th and 30th August 1968:
JUDGMENT
MUHAMMAD AFZAL CHEEMA, J.‑----This Criminal Appeal is by four appellants, namely, Durro, Arbab, Ramzan and Ali, who have been convicted by the learned Additional Sessions Judge, Jacobabad, under section 305 read with section 34 of the Pakistan Penal Code, for having committed the murder of Mahmud in village Thul Naka, Police Station Jacobabad on the night between the 22nd and 23rd of September 1966. Durro and Arbab appellants were awarded extreme penalty of death, while Ramzan and Ali were sentenced to transportation for life. In addition, they were also punished with a fine of Rs. 1,000 each or one years R. I. in default of payment thereof. By the same judgment, Durro, Ramzan and Ali appellants were also convicted under section 13 (d) of the Arms Ordinance with a concurrent sentence of two years' R. I each, except in the case of Durro whose case along with that of Arbab has been referred to us for confirmation of death sentence under section 374 of the Criminal Procedure Code. This judgment will dispose of the appeal as well as the murder reference.
2. The appellants are related inter se. Ramzan appellant is son of Arbab appellant who is married to the sister of Durro appellant. Ali appellant is also nephew of Durro appellant. The parties have a background of blood‑feuds. About a year prior to the occurrence, Kauro and Ghulam Muhammad brothers of Durro appellant and Dhano father of Arbab appellant were murdered for which Sajawal complainant, brother of Mahmud deceased, his cousin Bakhairo (P. W. 7) and some others were challaned. While the case was pending inquiry before the S. D. M. Nasirabad, on 21st of June 1966, which was one of the dates of hearing another clash between the parties became imminent which led to the filing of an application under section 107, Cr. P. Code by Ghulam Muhammad, a relation and co‑accused with Sajawal complainant in that case in the Court of the S. D. M., Nasirabad, who assigned it to Tehsildar and F. C. M. Jhatpat for disposal. This application was still pending when Sajawal complainant and his cousin Bakhairo P. W. being apprehensive of the appellants, shifted from Rojhan, their previous place of residence to Thul Naka in the vicinity of Jacobabad. Mahmud deceased brother of Sajawal complainant who worked as a labourer at Jacobabad Aerodrome joined them later and started living with them.
3. The case of the prosecution is that on the night of the present occurrence the deceased, his brother Sajawal complainant, Mst. Sadori wife of Sajawal, and his cousin Bakhairo were asleep in the courtyard of their house in the light of a lantern when at 1‑00 a. m. they woke up on the `Hakal' of the deceased who challenged and identified the four appellants accompanied by two unidentified persons, all armed with guns standing in the courtyard. Durro appellant urged his companions to open fire and so saying himself shot at the deceased followed by Arbab. The other inmates of the house, namely, Sajawal complainant (P. W. 5), his wife Sadori (P. W. 6), and his cousin Bakhairo (P. W. 7) (who also identified the appellants and the other two intruders) concealed themselves behind the heaps of bricks. Having fired several shots the six culprits including the four appellants ran away. On their departure the aforesaid three eye‑witnesses found Mahmud dead with two gun‑shot injuries.
Report Exh. 14 was lodged by Sajawal complainant at Sadar Police Station, Jacobabad at a distance of five furlongs at 3 a.m. which was recorded by A. S. I. Ali Nawaz (P. W. 9).
4. Having recorded the first information report A. S. I. Ali Nawaz (P. W. 9) reached the spot, found the dead body of Mahmud deceased lying in the courtyard, secured 13 empties, three wads and four live cartridges from the spot and a single shoe (Jooti) vide mashirnama Exh. 9. He also took into possession blood‑stained earth from the spot and sealed it into a parcel. The lantern was also secured by him vide mashirnama Exh. 8. He prepared injury statement of the deceased Exh. 10, and sent the dead body for post‑mortem examination. All these mashirnamas were attested by Ghaus Bakhsh (P. W. 3).
5. Autopsy on the dead body of Mahmud deceased was performed by Doctor M. A. Jabbar, A. M. O. Civil Hospital, Jacobabad at 10‑30 a.m. the same uay. On external examina tion he found two scorched lacerated‑type penetrating wounds 1" each, one on the left scapula and the other on the 5th lumber vertebra. The spinal cord, the left pleura and left lung were punctured and stomach, large intestines and spleen were injured. In the opinion of the doctor injuries were caused with a fire‑arm and were individually sufficient to cause death in the ordinary course of nature which had occurred instantaneously. The shots, according to the doctor, were fired from a close range within four feet. The relevant post‑mortem examination report was Exh. 7‑A.
6. On 24th of September 1966, A. S. I. Ali Nawaz (P. W. 9) arrested Ali appellant from village Rojhan. On 26th of September 1966, he arrested Arbab and Ramzan appellants from Jhatpat Jail. On 3rd October 1966, he tried the shoe secured from the spot on Arbab and Ramzan appellants which fitted on the latter and mashirnama Exh. 12 was prepared in this regard. On 7th October 1966, he secured vide mashirnama Exh. 20, a single‑barelled .12 bore licensed gun No. 78149 belong ing to Arbab appellant along with licence No. 5860 with two live cartridges which were produced by Jumma son of Ghulam Ali a relation of Arbab. On 28th October 1966, Maula Bakhsh (P. W. 1), S. H. O. Sadar, Jacobabad accompanied by A. S. I. Ali Nawaz and H. C. Mir Beg, on receipt of secret information arrested Durro from Jhatpat Road at 5 a.m. and recovered from his possession a gun and two live cartridges vide mashirnama Exh. 5.
7. The arrest of Arbab and Ramzan from Jhatpat Jail on 26th of September 1966 was effected in somewhat remarkable circumstances, and it seems necessary at this stage to refer to these circumstances in some detail, for their plea of alibi is founded on this arrest. From the statement of F. C. M. Feroze Din (P. W. 11) it appears that an application under section 107, Cr. P. Code was pending against the appellants and others. Having recorded the statement of Ghulam Muhammad petitioner the same day on 24th June 1966 the learned Magistrate issued notices under section 112, Cr. P. C. to the appellants and others. After several hearings on which no proceedings could be taken owing to non‑service of processes, the learned Magistrate adjourned the case on 3rd September to 23rd of September 1966. On this day both Arbab and Ramzan appellants along with one Peero were produced before the Magistrate by Jhatpat 'Police. They offered to be bound down and were ordered by the learned Magistrate to furnish security for keeping the peace for one year but surprisingly enough were unable to furnish security. On their failure to furnish the requisite security, they were ordered to be detained. It was in these circumstances that Arbab and Ramzan were arrested on the 26th of September 1966, by A. S. I. Ali Nawaz (P. W. 9). The relevant order is Exh. 38. On inspection of the Station diary of Jhatpat Police Station, A. S. 1. Ali Nawaz found that vide entry No. 1.5 dated the 22nd of September 1966, made at 12‑30 p.m. H. C. Muhammad Nawaz and F. C. Nazar Muhammad of that police station had proceeded to effect service of the warrants issued by F. C. M., Jacobabad against the appellants in connection with proceedings under section 107, Cr. P. Code. A subsequent entry No. 20 made at 4‑30 p.m. the day showed that the aforesaid two Police officials had brought under arrest to the Police Station, Arbab and Ramzan appellants along with one Peero who was also wanted in security proceedings. Thus after having been kept under detention in the police lock‑up during the crucial night between 22nd and 23rd of September 1966, they were produced before the F. C. M., Jhatpat on the following day at 10 a.m. and were ultimately arrested in the instant case on 26th of September, 1966. It was on the basis of this documentary evidence that these two appellants raised the plea of alibi, and in support of this plea produced in defence Khair Muhammad M. H. C. of Jhatpat Police Station (D. W. 1) along with the Station diary containing the relevant entries, copies of which are Exhs. 34 to 37. The plea was disbelieved by the learned Sessions Judge who considered it all a sheer fabrication made by the appellants .in collusion with the police in a pre‑planned manner.
8. After the completion of the investigation the appellants were sent up to stand trial for an offence under section 302 read with section 34, P. P. C. They pleaded not guilty to the charge. Durro appellant denied his arrest from Jhatpat Road on 28th October 1966 as also recovery of the gun from his possession along with two live cartridges. On the contrary, he took the position that he learnt about his implication in the case from Haji Ahmad Khan a respectable aamindar of the Ilaqa who produced him at the Police Station. I his gentleman is a Graduate and Chairman of the Union Committee Idgah Taluka appeared as D. W. 2 and stated that he had produced Durro appellant on the evening of 26th of October 1966 at the Police Station as directed by the Sub‑Inspector. In answer to a Court question he stated that he had brought him from his village. The case of Ali appellant was one of denial simpliciter, who stated that he was a prosecution witness in the murder case against Sajawal complainant and others and that the' P. Ws. were deposing against him on account of enmity as he did not submit to the pressure of the complainant party to resile from his statement. The position taken up by Arbab and Ramzan appellants has already been mentioned.
The learned Sessions Judge in his forty‑page judgment placed implicit reliance on the testimony of the eye‑witnesses, namely, Sajawal, his wife Sadori and cousin Bakhairo, supported by the medical evidence and that of recoveries. As stated earlier, the plea of alibi raised by Arbab and Ramzan appellants was rejected as a sheer forgery and fabrication. Consequently the appellants were found guilty and sentenced as detailed earlier.
10. At this stage, it would be convenient to advert to an application filed by the learned Assistant Advocate‑General under section 375/428, Cr. P. Code for examination of the Ballistic Expert whose report with regard to the firing of the crime empties from the guns recovered though placed on the record had not been formally proved. The application was strongly resisted before us by Mr. A. K. Brohi on the ground inter alia of its being belated and the concession made by the A. P. P. giving up the remaining P. Ws. including the Ballistic Expert. Reliance was placed in this regard on Ghulam Muhammad v. The State (P L D 1957 Lah. 263) (an authority which was cited by the learned Assistant Advocate‑General in support of his own contention), besides Ali and another v. Crown (P L D 1952 F C 71) and Nawab Yousuf v. The State (P L D 1961 Kar. 150). Lastly, it was contended by Mr. Brohi that the prosecution case had absolutely no legs to stand and that even if the Ballistic Expert's report were deemed to have been duly proved and received in evidence, this did not in the least alter the position, and as such the allowing of the application and the consequent examination of the expert was merely a futile exercise causing unnecessary delay in the disposal of the case.
11. Having carefully considered the matter in the light of the aforesaid authorities and after having been taken through the relevant record, we agree with Mr. A. K. Brohi that because of the infirmities in the direct evidence produced in the case, (which we will presently notice) it would be futile to adjourn the appeal, for the examination of the Ballistic Expert, which needless to say is relevant only as corroborative of the direct evidence. Obviously, no amount of corroboration can rehabilitate direct evidence which is otherwise false or unreliable. Then there is the extraordinary fact that the two guns and the crime empties recovered during the investigation were never made into sealed parcels, so as to obviate their being tampered with, till they were received in the Forensic Science Laboratory. This would demonstrate the futility of the evidence of the Ballistic Expert and therefore, we refuse the application for his examination at this stage.
12. Mr. Brohi, the learned counsel for the appellants raised the following contentions before us:
(1) That the impugned judgment was perverse being contrary to the weight of evidence and was based on fallacious reasoning.
(2) That in the admitted background of previous bad‑blood between the parties, there was not a single independent and disinterested witness in the case.
(3) That the testimony of the three so‑called eye‑witnesses was discrepant, inconsistent and unconvincing.
(4) That the so‑called corroborative evidence of the recovery Juti, the guns and the crime empties considered in the light of the alleged circumstances is of no consequence; and
(5) That the learned Sessions Judge had erred in discarding the plea of alibi raised by Arbab and Ramzan on the basis of unimpeachable evidence.
13. No doubt the F. I. R. was promptly lodged at the Police Station within two hours of the occurrence in which the four appellants were named, yet on analysis the evidence strongly suggests that the assertion of the three eye‑witnesses, namely, Sajawal complainant, his wife Mst. Sadori and his brother Bakhairo, as having clearly identified the four appellants is not free from doubt and has to be taken with a grain of salt. The statement of Sajawal complainant appearing as P. W. 5 at the trial shows on the one hand a marked improvement on his police report and a material discrepancy on the other which cannot be easily brushed aside. In the first information report he positively stated: "We concealed ourselves behind the heaps of bricks lying there out of fear". From "we" he obviously meant himself, his wife Mst. Sadori (P. W. 6) and his cousin Bakhairo (P. W. 7). On the contrary, at the trial he deposed: "We concealed ourselves under the cots." Later, in cross‑examination he stated that he could not say if Bakhairo and Sadori hid themselves underneath the cots. The recovery of Juti Exh. 9 which fitted Ramzan appellant, and the arrival of Muhammad Bakhsh (P. W. 11) whose testimony is in the nature of res gestae were strongly relied upon in the judgment as a corroborative piece of evidence of the ocular evidence. But the learned trial Judge lightly brushed aside the all important fact that Muhammad Bakhsh P. W. is not named in the first information report as having arrived at the spot. Secondly, before the Committing Magistrate, the witness had stated, that when he reached the spot, the complainant had told him, that Durro appellant had killed the deceased and did not then name Arbab appellant, as he did in the Sessions Court. As to the recovery of Juti Exh. 9, it could possibly be argued that it being night time, the Juti remained unnoticed till it was recovered by A. S. I. Ali Nawaz (P. W. 9) on his arrival at the spot. But another significant fact, namely, the burning of the lamp which enabled the identification of the appellants is a double‑edged weapon. Obviously from the back ground of the case it appears that in all probability the appellants' targets should have been Sajawal and Bakhairo who were directly involved in the triple murder case of their relations. It were they who had shifted to Thul Naka in apprehension of vendetta. Mahmud deceased only joined them later. It is clear, therefore, that the appellants should have come to wreak vengeance on Sajawal and Bakhairo. If the lamp was burning as the eye witnesses would have us believe it should have equally facilitated to the appellants the identification of the two aforesaid P. Ws. Again, if six persons armed with guns had gone fully prepared to avenge the triple murder of their dear ones, they should have assessed before hand the amount of resistance they would be likely to meet. Admittedly there was no other person present in the house except the deceased and the three P. Ws. who were taken unawares at mid‑night by six gunmen suddenly opening fire. While on the one hand there appears to be no plausible explanation as to why the assailants should not have been able to discover their real targets, namely, Sajawal and Bakhairo particularly when the latter admitted that he could see the appellants and the appellants could see him in the light of the lamp. It is equally improbable as to why did the appellants and their two unidentified companions run away after having killed the deceased, and should have spared Sajawal and Bakhairo against whom the appellants had the prime motive. Again, it appears extremely doubtful whether the eye‑witnesses who placed in such a predicament and each seeking shelter behind the bricks or underneath the cot should have been able even to clearly see the occurrence of which elaborate details were later given by them including Sadori (P. W. 6) who would have us believe that she remained so calm and composed that she was able to hood wink the assailants into the belief that her husband and Bakhairo were not present in the house which being a small place was well lit by a lamp. Yet another significant point which notwithstanding the lavish compliments paid by the learned trial Judge to the truthfulness of the eye‑witnesses makes their veracity rather doubtful is the existence of the gunshot holes on the sheet which according to the P. Ws. was put by Sajawal on the dead body of his brother after the occurrence. Sajawal stated in cross‑examination:
"I found my brother on the ground after the accused had left. I put the sheet over my brother. I picked up the sheet from the cot of Mahmud."
Again, none of the eye‑witnesses seems to be quite clear as to whether the deceased was running, standing or sleeping when he received the two fatal injuries. Sajawal stated:
"I cannot say if my brother was standing, sitting or sleeping on the cot when he was fired at. I cannot say if my brother was standing on the cot or on the ground at the time of firing, but he was standing."
Bakhairo P. W. had clearly stated before the police that the deceased had slept with a sheet over. The picking of the sheet from the cot of the deceased and putting it over his dead body as admitted by Sajawal would suggest that the deceased had covered himself with the sheet .when he was, hit and probably lay on one side: Although Mst. Sadori stated at the trial that the deceased was standing on the ground and fell down after receiving two shots, she had stated before the police that on getting the first shot, he had started running. She even went back on her police statement that she had concealed herself. Unfortunately, in the absence of exit wounds, the medical evidence does not give any clear indication of the position of the deceased at the time of receiving the fatal injuries which could be spelt out from the direction of the wounds. Thus the discrepancies in the statements of the P. Ws. as to whether they had concealed themselves in panic behind the heap of bricks of which we find no indication in the site‑plan, or underneath their cots whose location is not indicated either, coupled with the existence of the gunshot holes on the sheet and considered in the light of the probabilities of the circumstances, the account given by the eye‑witnesses is far from convincing.
14. We are perfectly conscious of the principle that the evaluation of evidence by the trial Court which has the advantage of seeing and studying the demeanour of a witness should not lightly be interfered with. From a perusal of the judgment under appeal, it seems to us however, that the learned trial Judge was firstly obsessed by the dubious character of the evidence produced in support of plea of alibi by Arbab and Ramzan appellants. Then we cannot avoid the impression that the trial Judge was carried away by the existence of a strong motive in the appellants against the complainant and Bakhairo P. W. This seems to have blurred his view and prevented him to hold the scales even while weighing the ocular evidence and thereby he fell into an error of treating the existence of motive and the suspicious nature of the evidence in support of the plea of alibi, as furnishing a "strong corroborative evidence" of the ocular evidence, notwithstanding its partisan character.
15. As to the plea of alibi raised by Arbab and Ramzan appellants, it may be stated at once that in view of the established motive, one would naturally be led to think that it were the appellants who should have been responsible for this murder. We are not quite satisfied that the documentary evidence produced to support the plea of alibi has been so shattered and discredited as to be justifiably characterised as a mere forgery and fabrication. At the same time the possibility of the two appellants having colluded with the police of Jhatpat secured false entries in the police record with a view to furnish a proof of alibi is not inconceivable. But other alternatives are equally possible. For instance, the appellants might have procured the services of hired assassins for the purpose, to one of whom Arbab might as well have given his licensed gun which was later produced before the police by his relation Jumman. Such a situation is not impossible : rather, we should say that it is the usual modus operandi of persons, who in view of their professed enmity with the complainant party and having reasons to be implicated, would in order to escape legal consequences of the act for the commission of which they might be the prime movers having conspired for the same resort to such a strategy.
16. Having carefully gone through the statement of Khair Muhammad (D. W. 1) who at the relevant time was Muharrir Head Constable at Jhatpat Police Station and produced the Station diary containing entries relating to the arrest and detention of Arbab and Ramzan at the Police…
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