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Petitioner: KALENDAR BUX VS Respondent: THE STATEHonorable Justice Dorab PatelSabir Ansari,Kazi Akhtar Ahmad
1969 P Cr
1969 P Cr. L J 433
[Karachi]
Before Dorab Patel and Illahi Bakhsh Khamisani, JJ
KALENDAR BUX AND ANOTHER‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 66 and Confirmation Case No. 16 of 1968, decided on 12th December 1968.
Penal Code (XLV of 1860), S. 302‑Murder‑Ocular evidence reliable and corroborating confession of accused‑Confession further corroborated by recovery of blood‑stained clothes and knife‑Prosecution, held, proved beyond reasonable doubt that accused killed deceased‑Conviction and sentence of death upheld.
Sabir Ansari for Appellants.
Kazi Akhtar Ahmad, A.‑G. for the State.
Date of hearing : 3rd December 1968.
JUDGMENT
DORAB PATEL, J.‑The appellants have been convicted under section 302/34, P. P. C. for the murder of Lal Bux deceased and sentenced to death. They have also been convicted under sections 324 and 323 read with section 34, P. P. C. and sentenced to two years' R. I. and one year's R. I. respectively and the sentences are to run concurrently. They have filed an appeal against their conviction and sentence and the learned Additional Sessions Judge has made a reference to this Court for the confirmation of the sentence of death, therefore we shall dispose of the appeal and the reference by this judgment.
2. According to the prosecution, the material facts are as follows : Lal Bux deceased and his uncle Wahid Bux were cobblers whilst the appellant Dad Muhammad is the father of the appellant Kalendar Bux. Illahi Bux, the brother of Lal Bux deceased, had thrown stones three or four days before the occurrence at the relations of Kalendar Bux so Kalendar Bux had come and fought with him. On 17th August 1966 Lal Bux and Wahid Bux had gone to work as usual on the bank of the nullah near Habib Bank at Stuart Ganj. Shikar pur. At about 7 a.m. Wahid Bux went to the Bazar to make some purchases. In his absence Kalendar Bux came to fight with Lal Bux but, as people had intervened, he went back to his house. When Wahid Bux returned, Lal Bux informed him of this incident. After a while Kalendar Bux returned with his father Dad Muhammad and Dad Muhammad instigated Kalendar Bux to attack Lal Bux. Kalendar Bux took out a knife and gave knife blows to Lal Bux on his abdomen and on his neck. Lal Bux picked up a stone from the ground and threw it at Kalendar Bux on his head, then Wahid Bux caught Kalendar Bux, but Kalendar Bux gave him a knife blow whilst Dad Muhammad gave him a lathi blow, therefore P. W. Wahid Bux fell down on the ground. Lal Bux had also fallen down on the ground and died on account of his injuries, P. Ws. Soomar and Haroon, who saw the occurrence, rushed up and the appellants ran away. Then P. W. Wabid Bux went to the house of Lal Bux and informed his father P. W. Buxan of Lal Bux's death and directed him to look after the dead body of Lal Bux whilst he went to Stuart Ganj Police Station, which was about two furlongs away, and lodged the F. I. R. at 8‑30 a.m. (Exh. 8) which was recorded by Muhammad Qasim, S. H. O.
3. After recording the F. I. R. P. W. Muhammad Qasim prepared a mashirnama of the injuries to Wahid Bux. He then went with Wahid Bux to the vardat of the crime and prepared an inquest report of the dead body and had it forwarded for post‑mortem examination. Muhammad Qasim found the tern sleeve of a shirt at the vardat which he took into his possession vide the mashirnama of the vardat (Exh. 12). Later on in the day, he arrested Kalendar Eux who had three injuries on his head. The shirt, shalwar and handkerchief which Kalendar Bux was wearing were blood‑stained, therefore he secured both the blood‑stained shirt, shalwar and handkerchief from the appellant vide mashirnama (Exh. 15) which was witnessed by P. Ws. Habibullah and Kouro. He then took Kalendar Bux to the Police Station where Kalendar Bux lodged a counter information report (Exh. 23) which was registered and recorded by Muhammad Qasim in the, Romamcha. Kalendar Bux then volunteered to produce a knife and he took Muhammad Qasim with P. Ws. Habibullah and Kouro to Momin Wahi and produced a blood‑stained knife from underneath some bushes. Accordingly, Muhammad Qasim secured the blood‑stained knife, ride mashirnama (Exh. 16) which was witnessed by P. Ws. Habibullah and Kouro. The blood‑stained clothes and the, blood‑stained knife produced by Kalendar Bux were sent to thp Chemical Analyser for a report and, according to the Chemical Analyser's report (Exh. 24), all the recoveries were stained with human blood. Muhammad Qasim also arrested Dad Muhammad, the father of Kalendar Bux. Finally, Kalendar Bux wanted to record his judicial confession, therefore he produced him before P. W. Manzoor Ahmad, City Magistrate, Shikarpur at 5‑30 p.m. on 18th August 1966. P. W. Manzoor Ahmad told him to produce Kalendar Bux in Court, therefore he produced Kalendar Bux on 19th August 1966 in Court and P. W. Manzoor Ahmad recorded Kalendar Bux's confession (Exh. 6) on 19th August 1966. After completing investigations, the appellants were challaned.
4. In their defence the appellant denied the offence and stated that they had been falsely implicated on account of enmity. Kalendar Bux also denied his judicial confession and the recoveries of the blood‑stained articles from him. The appellants did not examine any witness in their defence.
5. The post‑mortem of the dead body of Lal Bux was carried out by P. W. Dr. Ramchand. According to P. W. Dr. Ramchand the deceased had four incised wounds, one of which was on the neck and which was sufficient in the ordinary course of nature to cause death. P. W. Dr. Ramchand also said that all the injuries were ante‑mortem and had been caused by a sharp‑cutting weapon such as a knife. Thus, the medical evidence establishes that Lal Bux was stabbed to death and the question for determination is whether the appellants killed him.
6. In support of its case the prosecution has examined three eye‑witnesses P. Ws. Wahid Bux, Haroon and Soomar. As we have observed, P. Ws. Wahid Bux was the uncle of the deceased. He said he and his nephew the deceased worked together as cobblers on the bank of the nullah near Habib Bank. He said they had both gone to their place of work at 7 a.m. on the day of the occurrence and he then went to make some purchases. On his return Lal Bux told him that Kalendar Bux had come to fight with him but had been separated by other people and had gone away. After half an hour the appellant returned and, at the instigation of Dad Muhammad, Kalendar Bux attacked Lal Bux with a knife and inflicted four knife blows on him. Lal Bux threw a stone or brick at Kalendar Bux which hit him on the head, then he (Wahid Bux) tried to save Lal Bux and caught Kalendar Bux but Kalendar Bux gave him a knife injury and he fell down. Lal Bux had also fallen down and died on account of his injuries. Meanwhile P. Ws. Soomar and Haroon, and other people had rushed to intervene ; therefore the appellants ran away. Wahid Bux P. W. then went to the house of Lal Bux and informed P. W. Buxan, Lal Bux's father, of the occurrence and then he went to the Stuart Ganj Police Station where his F. I. R. was lodged and later on he was sent to the hospital for his injuries where he was examined by P. W. Dr. Ramchand. This evidence is supported by that of P. Ws. Haroon and Soomar. Both P. Ws. Haroon and Soomar said that they saw Dad Muhammad instigate Kalendar Bux to kill Lal Bux, that Kalendar Bux inflicted knife blows to Lal Bux, that Lal Bux hit Kalendar Bux with bricks and that when Wahid Bux intervened, Dad Muhammad gave him lathi blows.
7. This evidence is further supported by the judicial confession of Kalendar Bux which was recorded by P. W. Manzoor Ahmad, City Magistrate, Shikarpur on 19th August 1966. P. W. Manzoor Ahmad has said in evidence that when the appellant Kalendar Bux was brought before him in Court lie directed the Police to leave and, after they had left, lie administered to him the usual warnings. He then waited for two hours and then again cautioned him that he was not required to confess. He also examined his person to see whether he had been maltreated and, as Kalendar Bux had injuries on his head and hand, he enquired about the cause of these injuries, and Kalendar Bux told him that he had received those injuries during the occurrence. After fully satisfying himself that Kalendar Bux was making his confession voluntarily, P. W. Manzoor Ahmad recorded his confession, the relevant part of which states as follows :‑
"Deceased Lalu was known to me. He used to talk ill and abuse the women folk of my house. On the day of incident, I was going to the Pari of Hathi Dar in the morning. He was at his shop and I told him to behave well and not abuse my house people. But the deceased abused me with my mother's name and on this I grappled with him and we fought with each other. People intervened and separated us. The deceased then picked up a brick and hit me with it on my head. I started bleeding. I went home. I was infuriated. I picked up a knife and returned to the deceased's shop. He was standing there with an iron "Rambi" awaiting for me. We again attacked each other. But before he could harm me, I inflicted knife blows on his person. I cannot now say how many injuries I had caused him and where or on what parts of his body. He fell down bleeding and I ran, with the knife. But deceased Lalu's uncle named Wahid Bux came on and gave me a lath! blow which I stopped on my hand. Some other people came there and one of them gave me a lathi blow on my head. I cannot say who he was as then I suddenly escaped ran away from there. I straight went to Momin Wahi on Jacobabad Road where later police arrived and I was arrested. I had thrown the knife before running away from the vardat and probably that is already secured by the Police, I have nothing to say."
We are impressed by the evidence of P. W. Manzoor Ahmad and the confession recorded by him appears to be genuine and voluntary. However, the appellant retracted this confession and said in his statement to the Court that he made this confession involuntarily because he had been beaten by the police. P. W. Muhammad Qasim, A. S. I. who was investigating the occurrence, has denied having maltreated Kalendar Bux. The evidence of P. W. Dr. Ramchand who examined Kalendar Bux for his injuries is inconsistent with the appellant's plea that he had been meltreated by the Police. Thus Dr. Ramchand P. W. said in evidence that he had examined Kalendar Bux on the day of the occurrence at about 6‑00 p.m. that Kalendar Bux had tree injuries on his person, namely an abrasion on his right arm, a lacerated wound on the top of his head and on his left parietal region and that these injuries were about 8 to 10 hours old. 'The injuries on the appellant's head would only have been inflicted on a fight. The medical evidence is therefore inconsistent with the appellant's plea that he had been maltreated and forced to make a confession. However as the appellant has retracted his confession, as a rule of prudence, it would not be safe to place reliance on it unless it is corrobora ted by independent evidence. We have therefore to examine whether the confession is supported by independent evidence.
8. The confession is supported by the evidence of P.Ws. Wahid Bux, Haroon and Soomar and the evidence of P. W. Wahid Bux is supported by the fact of his injuries, which have been proved by P. W. Dr. Ramchand who had examined him on the day of the occurrence. The appellants have criticised the evidence of Haroon and Soomar P. Ws. on the ground that P. W. Wahid Bux had enmity with them, therefore, P. Ws. Haroon and Soomar have given false evidence at the instance of P. W. Wahid Bux. According to the appellants, a cousin of P. W. Wahid Bux had been murdered and P. W. Wahid Bux had filed a case for that murder against the brother of the appellant Dad Muhammad, therefore P. W. Wahid Bux had enmity with the appellants. P. W. Wahid Bux had denied in cross- examination that any relation of his had been murdered as alleged and the appellants have not produced any evidence whatever in support of their allegation that a brother of Dad Muhammad was suspected of the murder of P. W. Wahid Bux's cousin. We cannot, therefore, reject the evidence of P. W. Wahid Bux on a mere allegation of enmity. The evidence of P. Ws. Haroon and Soomar has been criticised on the ground that they are the friends and neighbours of P. W. Wahid Bux. Both these witnesses have denied that they are friends of P. W. Wahid Bux but even if they were friends or neighbours of P. W. Wahid Bux, there was no reason for them to implicate the appellants falsely. In any case, as there is no evidence in support of the alleged enmity of P. W. Wahid Bux against the appellant, it follows that there is no reason to disbelieve the evidence of P. Ws. Haroon and Soomar. In the result, the ocular evidence is reliable and corroborates the confession of Kalendar Bux. That confession is further corroborated by the recovery from Kalendar Bux of a blood‑stained handkerchief shalwar and a shirt vide mashirnama (Exh. 15), and a blood‑stained knife ' vide mashirnama (Fxh. 16). All these articles were stained with human blood according to the report of the Chemical Analyser (Exh. 24). These recoveries have been proved by P. W. Muhammad Qasim, A. S. I. and the mashirs P. Ws. Habibullah and Kouro. Both P. Ws. Habibullah and Kouro have supported the evidence of P. W. Muhammad Qasim, A. S. I. and said that they witnessed the arrest of the appellant Kalendar Bux, that the said appellant was wearing a blood‑stained shirt and shalwar and had blood‑stained handkerchief which were secured by P. W. Muhammad Qasim, A. S. I. from Kalendar Bux in their presence. Thereafter, in their presence, Kalendar Bux also produced a blood‑stained knife. The evidence of P. W. Kouro was criticised on the ground that lie was a friend of P. W. Wahid Bux but P. W. Kouro has denied that lie knew P. W. Wahid Bux and there is no evidence to show that he knew the complainant. Therefore there is no reason to disbelieve his evidence. In any case his evidence is further supported by that of P. W. Habibullah who also witnessed the recoveries of the blood‑stained articles from Kalendar Bux. It is not even alleged that P. W. Habibullah knew P. W. Wahid Bux or that he had any enmity against the appellant. Accordingly, the evidence of the mashirs appear to be reliable and the prosecution has therefore proved the recoveries of the said blood‑stained articles from Kalendar Bux. This evidence therefore further corroborates the confession of Kalendar Bux. Accordingly, we hold that the prosecution have proved beyond reasonable that Kalendar Bux killed Lal Bux deceased with a knife as alleged, and we uphold his conviction and sentence but under section 302, P. P. C. only.
9. We shall now examine whether Lal Bux deceased was killed in the furtherance of a common intention by both the appellants under section 34, P. P. C. P. W. Wahid Bux has said that Kalendar Bux, at the instigation of Dad Muhammad, attacked Lal Bux with a knife, then Lal Bux picked up a stone and hit Kalendar Bux on his head with that stone, then he (Wahid Bux) caught hold of Kalendar Bux and it was only after this that Dad Muhammad inflicted a lathi blow on him. P. Ws. Haroon and Soomar have given the same description of the occurrence. The fact that the appellant Dad Muhammad hit P. W. Wahid Bux with a lathi after P. W. Wahid Bux had tried to grapple with his son, was the natural reaction of a father trying to protect his son and it cannot possibly be said that this act showed any intention on his part to kill Lal Bux. In this connection, it is significant that he only had a lathi with him. The prosecution have also not produced any evidence to show that the attack on Lal Bux was pre-concerted between the appellants. Accordingly, we hold that the prosecution have failed to prove that the appellants attacked Lal Bux in the pursuit of common intention to kill him, therefore they have been wrongly convicted under section 34, P. P. C. However, Dad Muhammad did hit P. W. Wahid Bux with a lathi and as the murderous attack by his son on Lal Bux was indefensible, Dad Muhammad cannot plead any justification for hitting Wahid Bux. Accordingly, whilst setting aside his other convictions we hold that he has been rightly convicted under section 323, P. P. C. and sentenced to one year's R. I.
10. In the result, we dismiss the appeal of the appellant Kalendar Bux, accept the reference of the learned Additional Sessions Judge against Kalendar Bux and confirm the sentence of death passed against him. But we accept the appeal of Dad Muhammad against his conviction and sentence under section 302/34, P. P. C. reject the reference of the learned Additional Sessions Judge, and set aside the sentence of death passed against him. We also allow his appeal against his other convictions except his conviction under section 323, P. P. C. and the sentence of R. I. for one year which is upheld.
Order accordingly.