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Petitioner: CHANDOO alias CHAND MUHAMMAD VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Syed Haider Ali Pirzada Title: CHANDOO alias CHAND MUHAMMAD vs THE STATE Case No.:Criminal Appeal No, 7 and Confirmation Case No, 6 of 1984 Cr. A. No, K-5 of
JUDGMENT
Reported As: PLD 1985 Karachi 229 Result: Appeal dismissed Judgment JUDGMENT ' AJSIAL MIAN, J.-The appellant has been convicted under section 302, P. P. C. For murdering Mst. Rukhsana, wife of the appellant and one Nisar on 8-10-1977 at 5-15 p.m. In Amil Colony, Hyderabad, by the learned Ilnd Additional Sessions Judge, Hyderabad, by his judgment dated 7-1-1984 in Sessions Case No, 46 of 1978 and sentenced to death under section 302, P. P. C. Together with the fine of Rs, 10,000 or in default to suffer R. I. For one year more subject to the confirmation by the High Court. It has also been ordered that half of the fine, if realised, may be paid to the heirs of both the deceased in equal share. The appellant has filed the above appeal against the above judgment, whereas the learned and Additional Sessions Judge, Hyderabad has made the above reference for confirmation of the death sentence by this Court. 2. The prosecution case was that Mst. Rukhsana was married with the appellant and her elder sister P. W. 1 Mst. Rehana, complainant was married to the appellant's elder brother. Both the sisters had filed suits for dissolution of their marriages against their husbands, whereas the husbands had filed suits for restitution of conjugal rights. It is stated that at the intervention of the Nekmard the appellant and Mst. Rukhsana entered into a corapromise reflected in the agreement dated 9-5- 1977 Exh. 33 by virtue of which at the relevant time the appellant was putting up with his in-laws in House No, 27, Amil Colony, Hyderabad. It is the case of the prosecution that the appellant had been demanding return of the above document from his wife deceased Rukhsana but she had been resisting the above demand. It is also the case of the prosecution that on the above day of incident at the above time the appellant came to his in-laws' house, the door of which was closed. He scaled over the mat wall which surrounded the courtyard. It is further the case of the prosecution
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that the appellant attacked Mst. Rukhsana who was at the door of Tehkhana, thereupon P. W. 1 Mst. Rehana, complainant and the elder sister of the deceased Mst. Rukhsana, tried to save her but she was pushed aside. In the meanwhile Mst. Rukhsana went down in the Tehkhana but the appellant followed her and inflicted 29 injuries. Mst. Rehana came out of the house and raised cries for the help, in response to which inter alia deceased Nisar came running but he was encountered by the appellant who was running away from the scene of offence near the gate. He gave a knife injury at the abdomen of the aforesaid Nisar with the result that he was critically injured and his intestines came out which was witnessed by P. W. 1 Mst. Rehana P. W. 2 Ramzan and P. W. 3 Chand Muhammad. He was removed to the hospital but he succumbed to the injuries at about 10 p.m. On the same night. It is also the case of the prosecution that A. S. I. (P) at the Police Station Market, Hyderabad at about 5-55 p.m. Received a telephonic message from one Aqil Yousuf that somebody had killed his wife and also gave knife blow to one Nisar near the house of Abdul Latif Ansari. The above message was entered vide entry No, 37 in the station diary Exh. 39. Upon receipt of the above message P. W. 13 Imam Bux went to the place of Wardat and recorded the statement of P. W. 1 Mst. Rehana on a plain paper Exh. 11 and after reading over the same obtained her right thumb-impression thereon. In the meantime P. W. 14 S. H. 0. Imdad Ali Khan also reached at the place of Wardat before whom P. W. 13 Imam Bux produced Mst. Rehana. After that P. W. Imam Bux returned to the police station and P. W. Imdad Ali Khan sent the above statement through Head Constable Abdullah which was incorporated in 154, Cr. P. C. Book by Imam Bux, which is the F. I. R. Exh. 40. P. W. Imdad Ali Khan at the pointation of P. W. Mst. Rehana in presence of Mashirs Ishaq and P. W. Ramzan prepared the Mashirnama of the place of Wardat Exh. 20. He also prepared the inquest report of the dead body of Mst. Rukhsana Exh. 42 in the presence of the same Mashirs. He sent the dead body of Mst. Rukhsana to L. M. C. H. For post-mortem through Head Constable Abdullah. He also examined P. Ws. Mst. Rehana, Ishaque, Ramzan Aqil Yousif, Abdul Shakoor and Farooq. Upon receipt of a message that injured Nisar had expired in the L. M. C. H. He went to the hospital and prepared the inquest report of the dead body of Nisar Exh. 43 in presence of Mashirs Abdul Shakoor and P. W. 6 Ameen Farooq. ' It is also the case of the prosecution that on 9-10-1977 at 11 a.m. One Kaloo and Dilawar produced the appellant before the S. H. 0. P. W. 14 Imdad Ali Khan, who arrested him and recovered blood-stained clothes under Mashirnama of arrest Exh. 32 in presence of Mashir Kaloo son of Chuttan Shaikh Qureshi and P. W. Azizur Rehman Rehmani son of Dr. Muhammad Rehman. It is also the case of the prosecution that the appellant on 11-10-1977 at 5 p. m. Led the S. H. 0. And Mashirs P. W. Ghulam Muhammad and one Muhammad Ibrahim to Daulatabad and produced a blood-stained knife from inside the drain which was near the Jama Mosque under Exh. 24. On 24-10-1977 P. W. Imdad Ali Khan got the statements of P. Ws. Ramzan, Chand Muhammad, Azizur Rehman and Aqil Yousif recorded under section 164, Cr. P. C. And on 25-10-1977 of P. Ws. Muhammad Ibrahim and Ghulam Muhammad. He also sent the incriminating knife, blood-stained clothes, blood-stained earth and Chappal of the accut:d to the Chemical Analyser for report which was received as Exh. 44. Finally he submitted challan on 24-10-1977 in the Court of Vth Extra Joint Civil Judge and F. C. M., Hyderabad. 3. The prosecution in support of the case examined P. W. 1 Mst. Rehana the complainant and an eye-witness of the murder of Mst. Rukhsana and of Nisar, P. W. 2 Ramzan and P. W. 3 Chand Muhammad, the two eye-witnesses of the murder of deceased Nisar, P. W. 4 Ahmad Khan the Tapedar concerned, who prepared the sketch of Wardat Exh. 17, P. W. 5 Muhammad Ramzan one of
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the Mash irs to the above Mashirnama of Wardat Exh. 20, P. W. 6 Amin Farooq, one of the Mashirs to the dead body of deceased Nisar Exh. 22. P. W. 7 Ghulam Muhammad one of the Mashirs to the Mashirnama of recovery of blood-stained knife Exh. 24, P. W. 9 Habibur Rehman a process-server of the Police Station Market, Hyderabad to prove that Aqil Yousif, who had conveyed the message of the murder to P. W. 13 Imam Bux could not be served with the process as he had left Pakistan and had gone abroad (the above process- server was examined second time in order to prove that Mashir Sher Bahadur had left for Punjab without leaving any address with his ex-employer in Hyderabad), P. W. 10 Azizur Rehman one of the Mashirs to the Mashirnama of arrest Exh. 32 and also one of the witnesses to' the aforesaid compromise agreement between the appellant and deceased Rukhsana (Exh. 33), P.W. 11 Yaseen one of the Mashirs to the dead body of Mst. Rukhsana Exh. 35, P. W. 12 Dr. Muhammad Siddiq Mughal, Medical Officer L. M. C. H., who carried out the post-mortem on the dead bodies of Mst. Rukhsana and Nisar and prepared the post-mortem reports Exh. 37 and Exb. 38, /' respectively, P. W. 13 A. S. I. P. Imam Bux, who recorded the aforesaid telephonic message and the statement of P. W. Rehana on the plain paper, which was incorporated in the form of F. I. R. In 154, Cr. P. C. Register and P. W. 14 Imdad Ali Khan the S. H. 0., who carried out the investigations and submitted the challan. The prosecution also relied upon the above documents. 4. The appellant in his 342, Cr. P. C. Statement admitted the factum of having committed the murders of Mst. Rukhsana and Nisar but stated it was because he was gravely provoked as he found deceased Nisar lying on the cost alongwith his wife and kissing and hugging. It may be pertinent to reproduce his statement herein below as it will be pertinent for the purpose of determining the point in issue, which reads as follows :- "On the day of incident, I had gone to attend my job and returned to my house and when I went inside my house I found Mst. Rehana standing at the door of underground room when I entered the room I found deceased Nisar lying on the cot along with my wife and kissing and hugging her I was gravely provoked. I picked up the kitchen knife which was lying in the adjacent space which was used by us as a kitchen. On account of sudden and grave provocation I inflicted knife injuries to my wife. In the meanwhile Nisar took to his heals, I persuaded and gave him knife injury as a result of which, he fell down just outside the house adjacent to door. There was nobody else present or witnessed the incident. I wanted to go to police station but due to fear of the brother of the deceased Nisar who is not only an influential person but I apprehended danger to my life at his hands." ' The appellant has not examined any witness in defence. 5. In support of the appeal Mr. Muhammad Hayat Junejo, learned counsel for the appellant has urged as follows : (i) That since the names of P. W. 2 Raman and P. W. 3 Chand Muhammad were not mentioned in the F. I. R. Their testimony cannot be relied upon. (ii) That the recovery of the alleged blood-stained knife is liable to be ignored as there could not have been any blood stains after 2 days as the knife was allegedly recovered from a flowing mala. (iii) That the defence plea is supported by some material on record and,, therefore, it creates a reasonable doubt in favour of the appellant warranting conversion of the conviction from section 302, P. P. C. Into 304, P. P. C. As the case is covered by exception I to section 300, P. P. C. ' On the other hand Mr. Mustafa learned counsel for the State has contended that the prosecution case stands proved and the defence plea is belied by the medical evidence and the other circumstances of the case, 6. Adverting to the above first contention of Mr. Junejo, it may be observed that P. W. 2 Ramzan and P. W. 3 Chand Muhammad have deposed that they were coming out of the mosque after offering
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the prayers when they were attracted to the cries of complainant Mst. Rehana coming from her house, Nisar was ahead of them, they saw the appellant was coming out from the house of the complainant, gave one knife blow on the abdomen of Nisar who had by then reached the door with the result that the intestines of Nisar was oozing out and he fell down on the ground after covering a distance of 2-3 paces. They have also deposed that the appellant ran away alongwith knife. They took the injured Nisar to L. M. C. H. But they learnt that he died at about 10 p.m. Both the above witnesses are residents of the locality. Ramzan in his cross-examination has stated that deceased Nisar was his neighbour and caste-fellow. He has also stated that deceased Mst. Rukhsana was not his caste-fellow. He has further stated that he was not present at the place of Wardat when the police arrived. It may be pertinent to mention that P. W. 5 whose name was Muhammad Ramzan and who is one of the Mashirs to the place of Wardat is a different person from this witness. The defence has not brought out anything from P., W. 3 Chand Muhammad in his cross-examination to indicate that he was in any way connected with the two deceased. He has stated that he and P. W. 2 Ramzan were called by the police at the police station and they were taken to the police station by Younus brother of deceased Nisar. Both the above witnesses denied the suggestion that they have not witnessed the incident. Their testimony seems to be natural, however it was contended by Mr. Hayat Junejo that the same is liable to be ignored as their names did not appear in the F. I. R. Nor they were disclosed to P. W. 13 Imam Bux A. S. I. P. Or to P. W. 14 S. H. 0. Imdad Ali Khan. Reliance has been placed by him on the following cases : (i) Khalil v. The State PLD 1956 (W. P.) Lah. 840, in which learned Judges of a Division Bench of the erstwhile High Court of West Pakistan at Lahore though were inclined to consider the testimony of P. W. 7 one Karamdad as truthful but in view of the fact that his name did not find place in the first information report, thought that the safer course would be to keep his statement out of consideration. (ii) Nisar Hussain v. The State PLD 1964 (P. W.) Pesh. 59. In the above case a Division Bench of the erstwhile High Court of West Pakistan sitting at Peshawar while relying upon the above Lahore case, discarded the testimony of a witness whose presence was not mentioned in the F. I. R. As the learned Judges considered the same to be consistent with. The safe administration of justice. (iii) Mazhar Ali and others v. The State PLD 1964 (W. P.) Lah. 32, in which the erstwhile High Court of West Pakistan sitting at Lahore kept out of consideration, the testimony of two witnesses, who were domestic servants in the bungalow in which abduction of one Munira Sultana deceased had taken place as their names were not mentioned in the F. I. R. Though they were natural witnesses. It was observed that the omission of their names in the F. I. R. And the mentioning of the same in the supplementary statements create a suspicion that their names were mentioned as an afterthought. (iv) Mamoon and another v. The State PLD 1962 (W. P.) Kar. 800, in which a Division Bench of the erstwhile High Court of West Pakistan sitting at Karachi kept out of consideration the testimony of two witnesses Mst. Sajan and one Sawan as their names were not mentioned in the F. I. R. From the above-cited cases, it is evident that as a rule of prudent, the Courts keep out of consideration the testimony of the witnesses, whose names do not figure in the F. I. R. But it is not a rule of law. The Court in a fit case may consider the testimony of such a witness if the same is corroborated with other reliable evidence on record. However, we will examine the present case keeping out of consideration the testimony of the above two witnesses. 7. Reverting to the question of recovery of the blood-stained knife, it may be observed that since in the present case the appellant has admitted the factum of murdering the two deceased, the factum whether the knife was blood-stained or not is of no consequence as the recovery of the blood- B stained knife is generally used as a piece of corroborative evidence to re-enforce the
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other evidence on record, particularly of interested witnesses, whose testimony require corroboration with the object to prove the factum of killing. In the present case from the cross- examination of P. W. 7 Ghulam Muhammad, one of the Mashirs to the Mashirnama of recovery Exh. 24 and of P. W. 14 S. H. 0. Imdad Ali Khan, it is evident that no question was suggested by the defence that the knife in the Court was not the same which was used by the appellant. The cross-examination was directed to bring about the fact that the recovery was made from a nala ne the mosque where water was flowing in order to canvass that there could not have been any blood stains on the knife. Mr. Muhammad IIayat Junejo has referred to an unreported judgment dated 8-3-197o of the Supreme Court in Criminal Appeal No, K-5 of 1976. (Nazo alias Ali Nawaz v. The State), in which the Honourable Supreme Court while dealing with the question of recovery of the alleged bloodstained hatchet from three feet deep water of the minor pointed out that none of the witnesses of the seizure even the Investigating Officer had stated that the hatchet was blood-stained but in the Mashirnama of recovery it was mentioned that "hatchet besmeared with mud". It was further observed by the Supreme Court that there was no evidence that the blood-stained hatchet was recovered at the instance of the appellant. It was further observed that it was highly improbable that in spite of the fact that the hatchet had remained in water for several days, it would still contain sufficient blood on it to enable the Serologist to find the origin of blood, which aspect was found material by the Supreme Court and was not considered by the trial Court and the High Court. In the present case also neither the Mashir nor the S.H.O. P.W. Imdad Ali Khan has stated that the knife was blood-stained nor this fact has been mentioned under Mashirnama Exh. 34. However, the Chemical Analyser found human blood stains on the above knife as per his report Exh. 44 and, therefore, the above Supreme Court judgment may be pressed into service, but we may observe that the question, whether the blood-stained knife or on an object thrown in a drain would retain traces of blood, would depend on the facts namely, after how many days from the date of throwing the same was recovered, what was the depth of C the drain and what was the quantity of water and what was the speed of flow of water etc. If the recovery is made immediately within a few hours or in a day or two from a drain not having rapid flow of water and having not much depth, there might be still traces of blood. 8. As regards the last submission of Mr. Junejo, it may be observed that he has invited our attention to the statement of P. W. 1 3/st, Rehana made in the cross-examination that Nisar received injuries in the courtyard just near the door and that after sustaining injuries he rushed outside. He further invited our attention to the statement of P. W. 14 Imdad Ali in his cross-examination that Mst. Rehana had stated in her statement that Nisar son of Amir their neighbour came for help and the moment he entered the house he was given dagger blow in his stomach by appellant Chando with the result Nisar put his hand over the wound and went outside. It has been vehemently urged by Mr. Junejo that the factum that Nisar was given injury by the appellant inside the house of the deceased lends support to the defence plea, as suggested to the prosecution witnesses and narrated by the appellant in his 342, Cr. P. C. Statement reproduced hereinabove in para. 4. In furtherance of the above submission, he has also urged that there is a difference between burden of proof on the prosecution and on an accused person, namely, the prosecution is obliged to prove the case beyond reasonable doubt, whereas the defence is required only to create a reasonable doubt in favour of the truthfulness of his plea. He has referred to the following cases. (i) Safdar All v. The Crown (1), in which the learned Chief Justice of the Federal Court while agreeing with the leading judgment of Cornelius, J. (as he then was), observed as follows : "I am of the opinion that the decision in the case of Woolmington v. The Director of Public Prosecutions (L R 1935 A C 462) is in no way inconsistent with the provisions of section 105 of the Evidence Act. In a criminal case, it is the duty of the Court to review the entire evidence that has
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been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. ' In my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. The principles laid down in Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act." ' Whereas Shahabuddin, J. Made the following weighty observations on section 105 of the Evidence Act : "Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it. That provision of law was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof (1) PLD 1953 F SC 93 is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading." ' It may also be advantageous to reproduce relevant observation of Cornelius, J. On the point : "I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of 'reasonable doubt' which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged, i,e, to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond `reasonable doubt'. If then an accuse the person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such intention may, of course, be established by proof or circumstances surrounding an evidence act of cruelty causing death, and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is furnished by the accused person himself, who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possibility of the defence plea being tilt', in order to provide the preponderance of probability necessary for a 'prudent man' to act on the footing that the accused s act was performed with the sole intention of killing, or of causing a necessarily fatal injury." ' In the above Supreme Court case the appellant had taken the plea that he had inflicted four injuries on the deceased in defence as he was attacked by the deceased and received one injury. The Supreme Court after appraisal of the evidence on record found that there was sufficient material on record to create reasonable doubt in favour of the appellant. The appeal was allowed against the judgment of the Lahore High Court.
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(ii) Sultan Muhammad v. The Crawn (1). In the above case the question before the honourable Supreme Court in an appeal filed against the judgment of the High Court confirming the death sentence of the appellant, was whether the appellant had fired deliberately resulting the death of the deceased or was it an accidental fire as pleaded by the appellant, the Supreme Court observed that it is an axiomatic that in estimating the weight to be attached to specific conduct in given circumstances which favours the presumption of innocence must be considered with the same care as other explanations having the effect of implicating the accused in a crime. It was also observed that for the, purpose of determining the question, whether it was accidental or intentional fire, all the facts aid circumstances adduced for the prosecution and the like facts and circumstances adduced for the defence should be placed side by side and after full consideration of their effect upon each other, if there still remains a (1) D 1954 FC 29 reasonable doubt whether, even if the accused's special pleading be not accepted, the act of killing might be unintentional, the benefit of such reasonable doubt must go to the accused. In the above case the appeal of the appellant was allowed. ' In terms of the above judgments of the Supreme Court, it may be appropriate to examine the prosecution evidence and version in juxtaposition to the appellant's plea reproduced in para. 4 hereinabove. In this regard, it may be pertinent to refer to the ocular testimony of P. W. 1 Mst. Rehana. She has deposed that appellant was the husband of his sister deceased Rukhsana, whereas she was married to the…
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