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Petitioner: THE STATE VS Respondent: AMINULLAH AND ANOTHER
Court Name: Peshawar High Court Judge(s): Ghulam Safdar Shah, Abdul Hakim Khan Title: THE STATE vs AMINULLAH AND ANOTHER Case No.: Criminal Appeal No, 142 of 1968 Date of Judgment:1971-12-17 Reported As: PLD 1972 Peshawar 92 Result: A.
JUDGMENT
JUDGMENT GHULAM SAFDAR SHAH, J.---Aminullah alias Minogal (25) sort of Karim Khan and Hidayatullah (27) son of Abdullah were tried by the Sessions Judge, Peshawar for an offence under section 302/34, P. P. C., for the murder of their co-villager Atta Muhammad by firing. But he acquitted them by his judgment dated 25-3-1968. Being aggrieved of this judgment the State has filed this appeal under section 417, Cr. P. C. 2. The brief facts of the case as they transpire from the record, are as follows: The parties are residents of the same village, namely, Deb Babadur, Tehsil Peshawar. The two accused are related to each other in the sense that the daughter of accused Aminullah's brother (Murad Khan by name) is married to Hidayatullah accused. The three eye-witnesses in this case are close relatives of the deceased in that P. W. Fateh Khan is his uterine brother, Mst. Mehro Jan is his step-mother and Mst. Wala Jan is the step-mother of his father. The prosecution case is that a month before the occurrence the deceased and the two accused happened to meet in the village hujra when the deceased smoked chilam but did not offer it to accused Hidayatullah. Upon this Hidayatullah felt slighted and grappled with the deceased but they were separated by P. W. Fateh Khan who was also present. The two accused however threatened the deceased with dire consequences, and it is alleged that in pursuance of this threat they shot the deceased to death at about noon time on 18-9-1967 on thorough--fare in the village. The F. I. R. Of the incident (Exh. P. A.) was lodged by P. W. Fateh Khan at Badaber Police Station at 13-00 hours the same day which was recorded by S. H. O. Ghulam Haider. After recording the F. I. R. Ghulam Haider Khan proceeded to the wardat and upon arrival prepared the usual injury statement (Exh. P. E./1) and inquest report (Exh. P. E.) of the dead body which he then sent for post---mortem examination under the care of
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P. W. F. C. Moqam Din. Ghulam Haider Khan also prepared the site plan (Exh. P. D.), took into possession the blood from the wardat vide memo. Exh. P. B. And packed it into a sealed parcel. He then proceeded to record the statements of Mst. Mehro Jan and Mst. Wala Jan and after having done so set out in search of the accused but they were found missing from the village. In order to apprehend them warrants were issued for their arrest and it was not until 28-9-1967 that they surrendered at the police station and were taken in custody. 3. The prosecution produced in the trial Court three eye--witnesses, namely, Fateh Khan, Mst. Mehro Jan and Mst. Wala Jan, but the learned Sessions Judge disbelieved them for the following reasons:- "Now the whole of the material evidence in the case besides the statements of the doctor and the Investigating Officer consists of the statements of Fateh Khan, Mst. Moro Jan and Mst. Wala Jan. All the three are close relations of the deceased and their statements are therefore to be looked into carefully and cautiously. They are not to be relied upon unless there is independent corroboration of their statements on file. As a matter of fact, there is no corroboration whatsoever of their statements on the file. The occurrence took place in broad day-light inside the village abadi but it is very strange that not a single person has come forward to state even this much that the 3 P. W s. Charged the two accused for the offence soon after the occurrence. A close perusal of the statements of 3 P. Ws. Shows that they are not telling the truth. Mst. Wala Jan is an old woman and she has got a real son Abdul. Wadood. The statement of Abdur Rehman (P. W. 2) who is a close relation of the deceased shows that Mst. Wala Jan was living during the days of the occurrence in the house of her son Abdul Wadood, and not in the house of the deceased. Mst. Wala Jan, therefore, could not have been present in the house of the deceased with the other P. Ws. As alleged by her. She is a very old woman, and it is highly improbable that she could have gone out of her house at a time when firing was going on. In her police statement with which she was confronted she has stated that Aminullah fired only one shot and this fact, therefore clearly contradicts her statement at her trial. So far as Fateh Khan P. W. Is concerned, his allegation that he was living in the house of the deceased with the deceased during the days of occurrence is contradicted by the other 2 P. Ws. Mst. Mero Jan and Mst. Wala Jan. Both of them have stated that during the days of occurrence be was living in a house which he had taken on rent from one Habib Khan and the statement of P. W. S Abdul Majeed shows that the spot was not visible from the house of Habib Khan where Fateh Khan lived. In the circumstances, it is highly improbable that the P. Ws. Could have seen the accused at the time of the occurrence. So far as Mst. Mero Jan P. W. Is concerned, it is highly improbable that she could have gone out of her house when firing was going on in the street. Besides, she stated before the committing Magistrate that both the accused were armed with '303 bore rifles but the statement of the doctor shows that two of the injures on the person of the deceased were the result of bullets, while the other two were the result of pellets. According to this P. W., Hanif, Arsala and Daud came to the spot soon after the occurrence and according to her statement before the committing Magistrate saw the accused running away from the spot, but it is very strange that these P. Ws. Have 'not come out in support of her. There was no enmity, whatsoever, between the accused and the deceased and it is highly improbable that the accused could have murdered the deceased in broad day-light inside the village even if be assumed that the accused had a petty quarrel with the deceased over the smoking of the chilam. Further--more, the statement of Fateh Khan shows that it was the accused Hidayatullah whom the deceased had offended but it is very strange that Hidayatullah was standing at the spot armed with a gun without firing at the deceased. On the other hand the statement of Fateh Khan P. W. Shows that Abdul Qayyum, father of the deceased was charged for
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the murder of Dost Muhammad and also for the murder of Abdul Hamid and is undergoing sentence in the murder cases, In the circumstances the possibility of the relations of Dost Muhammad and Abdul Hamid having fired at the deceased could not be excluded. At any rate, the uncorroborated state--ments of these three interested P. Ws. In the circumstances mentioned above, in my opinion, could not be considered sufficient for having brought home the charge to the accused or any one of them beyond reasonable doubt and giving the accused the benefit of doubt I find them not guilty and acquit them." 4. It will have been noted that the main reason for which the learned Sessions Judge disbelieved the three eye-witnesses that they being the close relatives of the deceased could not be believed unless their evidence was independently corroborated. This approach on his part was palpably erroneous because relationship by itself would not render the witnesses "interested" unless they are shown to have some motive for falsely impli--cating the accused. The Supreme Court of Pakistan in the case of Nazir and others v. The State (PLD 1962 SC 269) in which this principle was laid down, went to the extent of observing that there cannot be any inflexible rule that the statement of an "interested" witness cannot be accepted without corroboration. Their Lordships recalled this principle with approval in the subsequent case of Nazir Hussain v. Muhammad Shafi and others (2). As regards the present case the admitted position, which even the trial Judge has accepted, is that except for the petty episode over the smoking of chilam, there was no enmity between the parties whatever; there--fore to say that the eye-witnesses were "interested" and could not be believed unless their evidence was independently corro--borated was a wholly erroneous assumption. The other reason which appears to have amply contributed to the above conclusion of the learned Sessions Judge is that he found certain discrepancies in the evidence of the eye-witnesses. However his approach to the appreciation of their evidence was in disregard of the dictum of the Supreme Court of Pakistan in the case of Tawaib Khan and another v. The State (PLD 1970 SC 13), in which the law laid down is that the doctrine "falsus in uno falsus in omnibus is not applicable in this country; the rule that the integrity of a 8 witness is indivisible, despite its moral virtue, cannot be accepted as one of universal applications and in the last analysis "the grain has to be sifted from the chaff in each case, in the light of its own particular circumstances" Had these salutary principles been present to the mind of the learned Sessions Judge he would have approached the evidence of the prosecution with little more care rather than discarding it for reasons, as we would presently show, altogether superficial. The learned Sessions Judge has disbelieved P. Ws. Fateh Khan and Mst. Wala Jan as he found them to have falsely claimed to be living in the house of Mst. Mehro Jan at the time of occurrence. In reaching this conclusion he relied upon the cross-examination account of P. Ws. Abdur Rahman and Abdul Majeed s Abdur Rehman deposing that Mst. Wala Jan lives with her son P. Ws. Abdul Wadud in his house, while the evidence of Abdul Majeed is that Fateh Khan runs a shop in the house in which he lives, but the place of occurrence being towards the back of the shop was not visible from the shop premises. Apart from the fact that Abdul Wadud, who appeared as P. Ws. Was not questioned whether Mst. Wala Jan used to live with him in his house at the time of occurrence, the evidence of Abdur Rehman and Abdul Majeed was misconstrued by the learned trial Judge in order to make sure we examined the original record and found that the evidence of these witnesses is interspersed with the words "runs" and "lives" and this obviously meant to point out the present abode of Fateh Khan and Mst. Wala Jan and not that they were not living in the house of Mst. Mehro Jan at the time of occurrence. The trial Judge also misread the evidence of P. W. Abdul Majeed that the place of occurrence was situated on the back of the house for what Abdul Majeed had stated was that it was situated on the back of the shop of P W. Fateh Khan and was not visible from there.
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Be that as it may, it seems to us that the learned trial Judge has given undue importance to this aspect of the case because even if Fateh Khan was present in his own house and Mst. Wala Jan in the house of her son Abdul Wadud they would still be the natural witnesses of the occurrence for according to Mst. Mehro Jan the house of Fateh Khan, which he had rented from Habib, was adjacent to her house while the site plan shows that the house of Abdul Wadud is situated in the same line and is just 30 feet from the place of occurrence. So far as Fateh Khan's presence in his own house is concerned it has not been questioned by the defence, and quite rightly, because it was he who had lodged the F. I. R. Of the incident at the police station, situated at 6 miles, distance, within an hour of the occurrence. Therefore looked at from whatever angle the three eye-witnesses appear to be the natural witnesses for the occurrence had taken place at about 12 noon when the two ladies would be present in their houses and so would be P. W. Fateh Khan as otherwise he could not have possibly promptly lodged the F. I. R. Within an hour of the incident. The learned Sessions Judge was also of the view that the two ladies could not have witnessed the occurrence for Mst. Wala Jan was an old lady whereas Mst. Mehro Jan could not have gone out of the house when the firing was going on in the street. Apart from the fact that this line of reasoning was wholly con--jecturous, the learned Sessions Judge failed to take note of the fact that if Mst. Wala Jan could travel all the way to his Court and give evidence she and Mst. Mehro Jan both could as well manage to run to the outer door of their house after hearing the gun report and the cries of the deceased. The rest of the reasons for which the learned Sessions Judge disbelieved the eye-witnesses are equally spurious. It is true that in her police statement Mst. Wala Jan had attributed to accused Aminullah only one shot but considering that she was an old lady of about 70 years of age she could as well have been mistaken. The evidence of Mst. Mehro Jan was doubted by him because of her assertion in the police statement that both the accused were armed with '303 bore rifles, whereas some of the injuries suffered by the deceased were caused by pellets. Surely the learned Sessions Judge should have realised that this discrepancy in the statement of Mst. Mehro Jan was not important because she had seen the two accused almost casually when a little while before the occurrence she saw them in the street while returning to her house from the house of her neighbour Naib Khan. We are also not impressed with the reasons of the learned Sessions Judge that just because there was no enmity between the parties of a serious nature it was possible that the deceased was put to death by the relatives of Dost Muhammad and Abdul Hamid for whose murders the father of the deceased was convicted and undergoing sentence, and further that no independent witnesses from the village, particularly Hanif, Arsala and Daud, who according to the P. Ws. Had come to the wardat after the occurrence, were examined by the prosecution. It does not seem to have occurred to him that had the witnesses not seen the commission of the crime they would rather have suspected the relatives of Dost Muhammad and Abdul Hamid for according to his own assumption the episode over the smoking of chilam was a petty affair which could not have furnished the accused with the motive to take life of the deceased. As regards the production of independent evidence from the village or the omission of the prosecution not to examine Hanif, Arsala and Daud, all that can be said is that this was not a circumstance for which the eye-witness account of the P. Ws. Should have been disregarded. After all it is not incon--ceivable that in a case of capital crime no one from the village community would like to come forward and depose against the actual culprits, but that apart no question was put to the Investigating Officer in t; is regard to enable him to explain as to why the said three persons had b en given up. We have already referred to the judgment of the Supreme Court in which the principle laid down is that the doctrine "falsus in uno falsus In omnibus" does not apply in this country; the rule that the integrity of a witness is indivisible, despite its moral virtue, cannot be accepted as one of universal applications and in the last analysis "the grain has to be sifted from the chaff in each case, in the
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light of its own particular circum--stances". Seen in this context the evidence of the eye-witnesses in this case appears to us to be wholly convincing notwithstanding the above discrepancies in their evidence. After all the occur--rence had taken place in broad day-light and that too almost in front of the houses of the witnesses and unless they had seen the occurrence it is inconceivable that they would falsely implicate the accused in this crime against whom they had no enmity whatever. In fact had the crime been un-witnesses the witnesses would rather have implicated the relatives of Dost Muhammad and Abdul Hamid in connection with whose murders the father of the deceased had been convicted and was undergoing sentence. The learned counsel for the accused however contended that this being an acquittal appeal the findings of the trial Judge should not be interfered with unless we come to the conclusion that the appreciation of evidence by him was perverse or foolish. Apart from the fact that the contention is devoid of force, in view of the dictum of the Supreme Court of Pakistan in the case of Ghulam Muhammad v. Muhammad Sharif and another (PLD 1969 SC 398) in which a similar contention was repelled in the following words:- "The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into section 417 the words of limitation employed by the High Court. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words, the order of acquittal will not be set aside on grounds of appreciation of evidence alone. This view, however, is not correct. If the reasons given by the trial Judge are of specu--lative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusions from it." We are clearly of the view that the appreciation of evidence by the trial Judge was wholly perverse for the reasons we have already given; therefore we have reappraised the evidence, in view of the dictum of the Supreme Court and reached the conclusion that the eye-witness account upon which the prosecu--tion relied was wholly natural and convincing. 5. The learned counsel next contended that the medical evidence in this case belies the eye- witnesses account and therefore it is doubtful if the witnesses had seen the occurrence. In order to appreciate this contention we would like to reproduce the evidence of Dr. Nawab Hassan Khan who had performed autopsy on the dead body of the deceased and had found on it the following injuries:- (1) A firearm entrance wound, 1" x --", situated on the upper part of the medial aspect of the left thigh. No gun powder marks were present. (2) Exit wound of injury No. I situated on the medial aspect of the left thigh in its middle which was 7" x 4--". The under--lying thigh bone was almost exposed. The thigh muscles at the site had been destroyed. (3) A firearm entrance wound, --" x 1/3", situated in the upper part of the right side back about 2" below the right scapula and 2" away from the back bone with slight charring round the wound. (4) Exit wound of injury No. 3 situated in the middle of the chest which was 1--" x 1". (5) A firearm entrance wound, --" x --", situated in the middle of the lateral aspect of the upper 3 of the left leg with slight charring round the wound. (6) Exit wound of injury No. 5 situated on the medial aspect of the upper 3 of the left leg and communicating with injury No. 5, which was 1" x 1". (7) A firearm entrance wound, --" x --", situated on the hypothenar eminence. No charring present. (8) Exit wound of injury No. 7, situated on the medial part of the right wrist in the front which was 2" x 1--". The wrist bone at the site was fractured.rd rd
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On internal examination of the dead body Dr. Khan found the thorax walls, right pleura, right lung, heart, pericardium and blood vessels of the deceased injured and his stomach empty. Death was due to shock and severe bleeding on account of injuries to the heart and lung and was instantaneous. All these injuries were caused by firearms; and probable time between death and post-mortem was 4 hours. In his opinion injuries Nos. 1 and 3 were caused by bullets, while injuries Nos. 5 and 7 were caused by pellets. The contention of the learned counsel is that the injuries suffered by the deceased do not square up with the evidence of the eye-witnesses. He argued that if Aminullah had fired three shots at the deceased then the corresponding three injuries on his person would be either by bullets or pellets which however is not the case, as according to Doctor Khan two of these injuries were caused by bullets and the other two by pellets. We have anxiously considered this aspect of the case but are unable to agree with the contention of the learned counsel. It is true that according to the evidence of the P. Ws. Four shots had been fired at the deceased out of which three were fired by Aminullah in their presence but this would not necessarily mean that all the four shots had found their target. It appears to us that the injuries suffered by the deceased were the result of three shots. And in this assumption we are supported by the nature of injuries suffered by him because injuries Nos. 1, 5 and 7 appear to have been caused with a '12 bore gun, injury No. 1 by the use of a ball cartridge; Nos. 5 and 7 by the same cartridge containing pellets, and No. 3 by bullet. In the Book of 3. S. Hatcher "Fire--arms Investigation, Identification and Evidence" illustration ox the ball cartridge is given at page 92 (it containing a single round ball), which according to the 10 Edition of Modi (page 211) D would cause large wounds and extensive laceration of the tissue and comminuted fractures of the bones if it strikes the body at right angle; its course however getting deflected if it does not come intact with the body at right angle. The fact that the entry, and exit wounds of injury No. 1 both happened to be on the medial aspect of the left thigh of the deceased support the opinion of Modi because of the extensive damage which the thigh of the deceased had suffered and also because the bone under--neath was not fractured for the missile, as the skiagram shows, did not hit the thigh at right angle and so got deflected. Injury No. 3 which is undoubtedly caused by a bullet for the missile had passed through and through the chest of the deceased almost in a line further shows that injury No. 1 could not be caused by a bullet. In this respect the following observations of Modi from 211 of his Book are significant:- "Conical bullets produce much less laceration than round ones, and the wounds produced by them are punctured in appearance. Conical bullets rarely split in the tissues, though round ones often do. Modern, steel jacketed bullets used in army weapons have the shape of an elongated cone and owing to their great velocity usually pass straight and direct through the body without any deflection or deviation, and without causing much damage. The wounds of entry and exit are almost circular and similar in appearance without any bruising or laceration of the surrounding parts." From this discussion it is clear that injuries Nos. 1, 5 and 7 were caused with a 12 bore gun, although in regard to injury No. 1 ball cartridge was used, whereas the other two injuries were caused by one and the same cartridge containing pellets. The evidence of the P. Ws. Is therefore convincing that they had seen accused Aminullah firing three shots at the deceased and although they did not claim to have seen the firing of the fourth shot they are unanimous in their version that after hearing the first shot and the cries of the deceased they rushed out to the outer door of their house and saw accused Hidayatullah also present near the deceased armed with '303 rifle. The fact that one of the injuries suffered by the deceased was as a result of bullet clearly leads to the conclusion that it was he who had fired the first shot at the deceased and was equally responsible for his death.th
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6. The learned counsel next contended that according to the version of the P. Ws. Accused Aminullah had fired all the three shots from the same distance and yet charring was found by the Medical Officer only around injury No. 5 and not injuries Nos. 1 and 7. From this he doubted if the witnesses had seen the commission of the crime. In answer to this objection the learned Advocate- General pointed out that according to recovery memo. Exh. P. C. The shalwar of the deceased did net have any cor--responding burnt marks; no mention of any such thing was made by the Investigating Officer in the inquest report nor on the printed sheet upon which the injuries of the deceased were recorded although the form contains a specific column for this purpose. He therefore contended that the opinion of Doctor Khan that he had found charring around injury No. 5 was not conclusive. This controversy however may not detain us because charring around injury No. 5 could be justified without impairing the value of the evidence of the witnesses. Now by looking at injuries Nos. 1, 5 and 7, it…
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