Full Judgment Text & Judicial Ruling

1968 P Cr

1968 P Cr. L J 1608

[Karachi]

Before Nazir Ahmad Mahmood and Illahi Bakhsh Khamisani, JJ

THE STATE‑‑‑Appellant

Versus

JUMAN AND OTHERS‑Respondents

Criminal Acquittal Appeal No. 20 of 1967 decided on 22nd December 1967.

(a) Criminal Procedure Code (V of 1898),

Ss. 417 & 423 --Appeal against acquittal‑Accused charged with offence under S. 302, P. P. C. but acquitted by trial Court‑--Evidence of eye -witnesses found to be supported by disinterested witness, recovery of empty shells and firearms, report of Ballistic Expert and medical evidence‑Criticism by trial Court of such evidence altogether misconceived and unwarranted Appeal accepted.

(b) Penal Code (XLV of 1860),

S. 302‑Murder‑Sentence--- Occurrence taking place two years earlier and accused acquitted by trial Court on basis of misconceived and unwarranted criticism of evidence‑Awarding of extreme penalty, in appeal against acquittal, held, not proper, in circumstances of case‑Accused sentenced to transportation for life.

Manzoor Hussain, A.A. for G. for the State.

M. H. Junejo for Respondents.

Date of hearing: 12th December 1967.

JUDGMENT

NAZEER AHMAD MAHMOOD, J.‑--Juman, his brother Amir Bux and their cousin Gulab, Kirir and Jaffer were tried under sections 147, 148 and 302/149, P. P. C. for having committed the offence of rioting and for having committed the murder of Shafi Muhammad deceased in prosecution of the common object of the unlawful Assembly formed by them on 17th of October 1965 in Deb Mothri, Taluka Johi. Accused Juman, Amir Bux and Gulab were also tried under section 13‑D of West Pakistan Arms Ordinance, 1965. As a result of the trial Mr. Ghulam Hassan A. Shaikh, Sessions Judge, Dadu acquitted all the accused of all the charges, by his order dated 14‑7‑1966. The State has come up in Appeal against the acquittal of the above‑mentioned accused of the charges under sections 147, 148 and 302/149, P. P, C. Earlier a revision petition under section. 439 against the acquittal of the accused was filed by Mst. Hussain Bibi. This judgment will dispose of the Acquittal Appeal No, 20/6,7 and the Criminal Revision No. 211/66.

2. Prosecution case briefly is that on 17th of October 1965 half a pahasr after sun‑rise Shafi Muhammad deceased was sitting with his mother Mst. Hussain Bibi (P. W. 4) in their house in village Deh Mothri, Taluka Johi when Laung (P. W. 5) came up to the house and called out Shafi Muhammad deceased as he wanted to obtain seeds from the latter. Shafi Muhammad deceased took Laung P. W., to his otak nearby towards the south of his house asking his mother to prepare breakfast for them. While Laung and Shah deceased were sitting in the otak. Lal Khan (P. W. 3) who has his house at a distance of half a call from the house of the deceased came up to the otak and coined Shafi deceased and Laung P. W. in their chat Lal Khan had a round of the watercourse irrigating his land and it was in, the course of the supervision of the flow of the water that he had reached near the otak of Shafi Muhammad deceased and finding him sitting with Laung P. W., had conic along to join them. While the above‑mentioned three persons were engaged: in conversation Shafi deceased was called to his house by his mother Mst. Hussain Bibi P. W. for taking the meal which had become ready. Soon after Shafi deceased left his otak and had covered a distance of 30 or 35 paces between the otak and the entrance of his house, when all the 5 accused emerged from the sugar‑cane field on the north, Juman armed with a rifle, Amir Bux armed with a double‑barrel gun and Gulab and Jaffer armed with single‑barrel guns and Kirir with a hatchet and challenged the deceased not to proceed any further. Mst. Hussain Bibi (P. W. 4) implored them riot to kill Shafi Muhammad and in the meantime Laung and Lal Khan P. W. came out from the otak. The accused party threatened them not to come near and to the accompaniment of challenges the members of the accused party who were armed with fire-arm started firing at the deceased. The deceased fell down near the entrance of his house. Kirir accused thereafter came up near Shall Muhammad deceased and gave him two or three hatchet blows. Thereafter the accused party departed from the scene of the crime raising slogans and went away towards the east. Soon after Shafi Muhammad (P. W. 6) who was working on his land nearby arrived at the spot attracted by the fire -arm reports. On his way to the spot he saw the 5 accused armed with different weapons mentioned above coming from the opposite direction, On reaching the spot he saw Mst. Hussain Bibi, Laung and Lal Khan P. Ws, already present there and Shafi Muhammad lying dead on the ground with gun‑shot injuries and hatchet injuries on his body. The above‑mentioned eye‑witnesses of the occurrence told him what they had seen of the occurrence and he in turn informed them that he had seen the 5 accused running away Lal Khan (P. W. 3) thereafter sent away to the Police station for lodging the report leaving behind the above‑mentioned eye‑witnesses near the dead body of the deceased. Lal Khan lodged the report Exh. 9 at Police Station Phulji Out Post, which is three miles froth the place of the occurrence, on the same day viz. 17‑10‑1965 at 1 ‑00 a.m which was recorded by Muhammad Bux H, C. (P. Ws 8). After recording the F. I. R. Muhammad Bux H, C. accompanied Lal Khan to the spot and found the dead body of Shaft deceased lying near the entrance inside the house with hatchet and fire‑arm injuries on his body. The Head Constable collected blood‑stained earth from the spot and sealed it into a parcel and secured 4 empty cartridges and one empty bullet from the Vardat. They were lying about 6/7 paces away from the dead body, He sealed them into a parcel. He also prepared the Mashirnama of the Vardaat which was attested by Shafi Muhammad son of Allah Dad (P. W 7). The Head Constable sent away the dead body to Medical Officer Johi for its post- mortem examination with Shafi Muhammad constable, and when S. H. O, Ali Nawaz (P. W. 9) arrived at the spot at about 12‑00 noon he made over the investigation to his officer. The S. H. O. verified the investigation of Head Constable Muhammad Bux and recorded the statements of Laung, Shafi Muhammad and Mst. Hussain Bibi P. Ws. The accused were not traceable in the village on that day and the S. H. O. arrested Juman, Amiro, Gulab and Kirir accused from their village on 18‑10‑1965 in the presence of Mashir Shafi Muhammad P. W., and Chhuttal vide Mashirnama Exh. 18. When interrogated, Juman accused led the S. H. O. to the paddy cultivation in front of his house and from its eastern side produced a 303 bore rifle No. 5643 which lay concealed inside the cultivation. There were two bullets in the magazine of the rifle and the S. H. O. took the rifle and the bullets into his possession. Amir accused led Ali Nawaz S. H. O. to the paddy wall in his dera and from there produced the double‑barrel gun No. 80286 with 4 live cart ridges from the heap of the paddy where it lay concealed and the Sub‑Inspector took the gun and the cartridges into his possession and sealed them into a parcel vide Mashirnama Exh. 23. Gulab accused led the S. H. O. to a heap of manure in front of his house and from there produced a 16 bore country made shot‑gun with the two 16 bore live cartridges. The S. H. O. took these into his possession vide Mashirnama Exh. 21 and sealed them into a parcel. Kirir accused led the S. H. O. to his house and from the thatched roof thereof produced a blood-stained hatchet which the S. H. O. took into his possession and sealed into a parcel vide Mashirnama Exh. 22. All these Mashirnama were prepared in the presence of Shafi Muhammad P. W. Mashir and Chhuttal. Jaffar accused appeared before the Sub‑Inspector at the Police Station Johi on 20‑10‑1965 and produced a 12 bore single‑barrel gun No. 2398/SG along with one live cartridge and the Police officer took these into his possession and sealed them into a parcel vide Mashirnama Exh. 24 which was also attested by Shafi Muhammad Manshir P. W. and Ghhuttal. The Sub‑Inspector arrested Jaffar accused. The above mentioned fire‑arms were later sent by the S. H. O. to the Ballistic Expert, Lahore and the hatchet to the Chemical Analyser. The empty shells that had been collected from the spot by Muhammad Bux H. C. were also sent to the Ballistic Expert. Khan Shah, Examiner of Fire‑arms (P. W. 10) examined the fire‑arms and expressed the opinion that crime empty C‑1 had been fired from the 12 bore single‑barrel shot‑gun bearing No. 3298/M and 12 bore crime empty marked C‑2 had been fired from the left barrel of 12 bore double- barrel shot‑gun No. 80286 and crime empties 3‑C and C‑4 had not been fired from 12 bore double‑barrel shot‑gun or single‑barrel shot‑guns and that the empty of 303 rifle bullets namely C‑5 had been fired from rifle No. 5645. The Chemical Analyser to whom the hatchet and blood‑stained earth collected from the spot had been sent reported that both the articles were stained with human blood.

3. Dr. Inam‑ul‑Haq, Medical Officer, Johi who performed the post‑mortem examination on the dead body of Shafi deceased, after he had been identified by Muhammad Yusuf son of Muhammad Ali, from 9‑00 a.m. to 10‑25 a.m. on 18‑10‑1965 found the following:‑

(1). Two penetrating wounds bigger than pea size '' x '' over right side of face causing fracture of the maxillary bone.

(2) One wound of exit '' above right temple '' x '' over temporal region.

(3) One penetrating wound behind right ear mid portion.

(4) Lacerated wound 1/6'' x 1/6'' margins tattooed, in front of right ear. From right ear blood stained fluid coming out.

(5) Lacerated wound 1 " x 2'' x skin deep over right angle of mandibular region.

(6) Two lacerations small behind injury No. 5 over upper and right side of neck.

(7) One penetrating wound 2" above right ear fracturing right temporal bone.

(8) Incised wound 3" x 1 " x 1 '' cutting the under‑lying maxillary bone and canine first premolar and second premolar teeth through and through.

(9) Three penetrating wounds, margin tattooed, oval shaped bigger than pea size over right shoulder in front.

(10) Three exit wounds upper and posterior aspect of the right shoulder.

(11) Six penetrating wounds over anterior medical aspect of the right arm, margins of the wound tattooed, bigger than pea size and humerus bone fractured into pieces, pellets removed.

(12) Lacerated wound 1 '' x 1 " x muscle deep, front portion of skin of the thinner eminence absent.

(13) Lacerated wound 1/8" x 1/6" tip of right hand ventral aspect.

(14) Lacerated wound " x " over posterior aspect of tip of right finger.

(15) One penetrating wound 1 " x " above the left clavicle over left aspect of neck in front.

(16) Two lacerations 2 " x " just above injury No. 15.

(17) Incised wound over dorsal aspect of little ring and middle finger, fracturing bones, middle finger missing.

(18) Seven penetrating wounds over abdomen and lower and front portion of chest two pellets were removed from abdominal wall of large size.

(19) Six lacerations of skin over right side and in front of chest wall.

(20) One wound of exit 1 " x 1" over right abdominal wall close line alba 1" away from umblicus, downwards and outwards.

(21) One penetrating wound about superio, border of right scapula bigger than pea size and made exit and going under the skin 2" and lacerated the skin 5" x 1" over back of right chest wall.

(22) One penetrating wound over left lumber region.

(23) One penetrating wound on lower left back of chest wall close to 12th rib.

(24) One penetrating wound on lower ‑left back of chest wall close to eleventh rib.

(25) One penetrating wound at mid portion of the right scapula.

(26) One penetrating wound close to inferior angle of right scapula.

The doctor expressed the opinion that injuries Nos. 1‑--26 except injuries Nos. 8 and 17 appeared to have been caused by discharge of a fire‑arm like gun and injuries Nos. 8 and 17 by a sharp cutting weapon such as hatchet and further opined that while other injuries were ante‑mortem in nature, injuries Nos. 8 and 17 appeared to be post‑mortem.

On internal examination the doctor found the following:

Right Lung was lacerated and left Lung was pale. Free blood was found in abdominal cavity. Stomach was punctured through and through and it was ecchymosed and punctured. Liver was lacerated and pale. Cork of one paisa size was found inside it and was removed. And on the basis of his exami nation external and internal he expressed the opinion that the deceased had died on account of shock and haemorrhage as a result of injuries sustained by him, and that the probable time between injuries and death was within half an hour and time between death and post‑mortem was about 24 hours. The external injuries Nos. 1, 3, 21, 18, 25 and 11 according to the doctor were sufficient to cause death in the ordinary course of nature. He further opined that the probable range of the discharge of fire‑arms was about more than 6 feet and expressed his inability to give the correct distance. He further stated that all the fire‑arm injuries could be caused by a 12 bore gun.

4. The accused pleaded not guilty and denied all the allegations of the prosecution. They denied that they had anything to do with the death of Shafi Muhammad deceased or that they had participated in the occurrence in any manner. They with the exception of Jafar accused further denied that the weapons that were being described as having been recovered from them had actually been recovered from them. They ascribed their implication in the case to the enmity of P. Ws. When they were asked why Lal Khan and Mst. Hussain Bibi had deposed against them they made a statement to the effect that they were interested inter se and hostile to them. When asked why Shafi Muhammad, P. W. 6) had deposed that he saw them running away while armed with their weapons, they described Shaft as being a relation of the deceased and his hart. They also described Shafi Muhammad (P. W. 7) the Mashir of the Vardaat as a relation of the deceased. Except Jaffer accused no body admitted that he produced any weapon before the investigating officer. Jaffer admitted that he had produced a gun before the investigating officer but added that it was his licensed gun. None of the accused produced any evidence in his defence.

5. It is evident from the above narrative that the prosecu tion has relied in its case against the accused persons on the ocular testimony of Lal Khan, Mst. Hussain Bibi and Laung P. Ws. the corroborative statement of Shafi Muhammad (P. W. 6), the evidence regarding the recovery of empty cartridges from the spot and of different weapons at the instance of the accused and the medical evidence besides the evidence regarding the motive.

6. That Gul Hassan, a brother of Juman and Amir Bux accused was killed three months before the present occurrence, his dead body having been found from the field of Bashir, a brother of Shafi deceased, and Bashir along with some of his other relatives was prosecuted for the murder of Gul Hasan is not disputed. This circumstance not only finds mention in the statement of Mst. Hussain Bibi, this is admitted even by Juman and Amir Bux accused in their respective statements although they have described that circumstance as the reason for their gratituous implication in this case. Also, there can be no manner of doubt that the deceased was murdered. According to the medical evidence the dead body of the deceased bore 26 injuries out of which only two had been caused by a sharp‑edged weapon and were post‑mortem and the rest were ante‑mortem gun‑shot injuries. The dead body of the deceased was found by the investigating officer lying a little inside rite entrance of the house of Shafi deceased and Muhammad Bux H. C. collected blood‑stained earth from this place. All these circumstance show that the deceased was murdered. The question of prune importance in this case is whether or not the three persons who claimed to have seen the accused party making an assault on the deceased with their respective fire‑arms and a hatchet were actual eye‑witnesses of the occurrence car not. The learned Sessions Judge has come to the conclusion that they were not actual eye‑witnesses of the occurrence and has, therefore, finding the case not established against the accused persons acquitted them of all the charges. We have gone through the evidence in the case and find ourselves in disagreement with the learned Sessions Judge in his assessment of the prosecution evidence. We find no good ground for holding that Mst. Hussain Bibi, Lal Khan and Laung P. W5. had not actually witnessed the occurrence. It is not contested by the defence that the occurrence took place half a pahar after sun‑rise and the deceased was killed when he was attacked by tire‑arms when he was near the entrance of his house. We fail to understand why in these circumstances Mst. Hussain Bibi P. W. cannot be accepted as a natural eye‑witness of the occurrence. There is nothing on the record to suggest that the entrance of the house was a door of small width. The numerous lire‑arm injuries on the body of the deceased indicate that they were the result of several fire‑arm shots. Mst. Hussain Bibi is undoubtedly an inmate of the house and if the fire‑arm assault was made at about breakfast time as alleged by the prosecution she would be present in the house and even if she were not looking outside through the entrance before the fire‑arm assault, on hearing the first fire‑arm report would have felt curious enough to come near the entrance and see what the matter was and who the assailants were. The accused lived only at a distance of half a call from the house of the deceased and it is not contended that they were not known to Mst. Hussain Bibi, Nor is there apparently any reason why Laung and Lal P. Ws. be considered as not having seen the occurrence. There is nothing improbable about Lal Khan having gone to the otak of Shall deceased at the end of a round of the watercourse and having sat with Shall Muhammad in the otak; nor is there any thing improbable about Laung P. W. having come to Shafi deceased and called him and accompanied him to the otak in the circumstances described by Mst. Hussain Bibi and Laung P. Ws. All the above‑mentioned three eye‑witnesses of the occurrence were mentioned in the F. I. R. which was lodged at the Police station which is 3 miles distant from the place of the occurrence within an hour of the occurrence. Furthermore, after their arrest the different accused led to recovery of different fire‑arms and a hatchet. Some of the empty shells recovered from near the place where the dead body of the deceased lay were found by Khan Shah, Fire‑arms Expert (P. W. 10) to have beers discharged through some of the shot‑guns recovered.

7. For discarding the evidence of Mst. Hussain Bibi the learned Sessions Judge took into account the following main circumstances:‑

(1) In case Mat. Hussain Bibi was sitting at point D shown' in the site plan prepared by Tapedar, (Exh. 6) she would not have been able to see the assailants when they emerged from the cane cultivation.

(2) That Mst. Hussain Bibi could not have been able to sec from point D (the thala) the persons sitting in the otak as the, portion of the otak on its north, that Is, to the south of the, house of the deceased was not open and that she could not have seen the deceased coming out of the otak before he was, attacked.

(3) If as is alleged by Mst. Hussain Bibi she was at it distance of 10 or 15 paces away from the deceased at the time of assault she should also have received some gun‑shot injuries.

(4) Since in the opening sentence of her examination in chief she had stated that she and Shall Muhammad were sitting in their house before Shall was called out she had meant that she was sitting inside the residential portion of her house and where she further stated that, she was sitting on the thala which is the other portion of the house, she had indulged in a falsehood.

8. The learned Sessions Judge has also noticed some discrepancies in the statements of mss: Hussain Bibi made by her at different stages. We see no force in any oaf the reasons given by the learned Sessions Judge for discarding Mst. Hussain Bibi P. W.'s evidence. The learned Sessions Judge seem, to us to have attached unnecessary importance to the, different points shown in a site plan prepared many months after the occurrence with reference to the statement of Mst. Hussain Bibi. We have carefully gone through the evidence of Mst. Hussain Bibi and we find that she had not at all stated that she had seen the accused emerge from the sugar‑cane field while she was yet, sitting on the thala. She has, of course, stated that she way, sitting on the platform with Shall Muhammad before he was called out by Laung P. W. and she has also no doubt mentioned that she could see the deceased and his companions in the otak from where she sat. But she does not further state that when the accused emerged from the sugar‑cane field, she was yet sitting on the thala. For it appears to us that for satisfying herself that the breakfast meal was ready she must have left the thala and gone to the residential portion of the house and thereafter come back for the purpose of calling Shafi to come and take away the meal. Since no specific question was put to Mst. Hussain Bibi as to whether she was standing or sitting when she saw the accused emerging from the cultivation, it appears to us to be unfair to ascribe to lie: "he statement that she had seen them accused emerge from the sugar‑cane cultivation while she sat on the thala.

9. We do not consider it difficult to believe Mst. Hussain Bibi in her statement that from the thala she could see Lal Khan and Laung P. Ws. sitting in the otak. The site plan Exh. 6 shows that this otak is towards the south of the house of Shafi deceased at a distance of about 113 feet: There is nothing on the record to show that the otak had walls round it and if it had boundary walls, of what height they were? On the other hand we have evidence that the thala (point D) was about 6 ‑8 inches high and the outer wall of the house of Shafi deceased was only 2 feet high and had an entrance. It further transpires from the statements of Muhammad Bux P, W., and Shafi Muhammad Mashir (P. W. 7) that there were some costs, lying on the thala. It further transpires from the statements of Muhammad Bux and Shafi Muhammad P. Ws, that the otak was not only open on the southern rind eastern sides but was also partly open on the northern and western sides also. If a person were sitting on a cot which is set on this thala which is from 6‑‑‑8 inches high, he would certainly be able to look across the intervening 2 feet high wall up to the otak and if the otak had small boundary wall and was partly open on the northern side thereof Mst, Hussain Bibi certainly would be able to see Shafi Muhammad when he came towards the house in response to her call that he could take away the meal. The following description of the otak given in the Mashirnama Exh, 17 shows that there was no obstruction to visibility between the otak and the thala of the house of the deceased. "The otak is made of thatches (sic) and stood on beams (wooden thatches) facing towards east and south. The Sugar‑cane cultivation is at a distance of 45 paces from the otak which is an open ground from there sine cart see the scene of offence front there."

10. Nor do we think that Mst. Hussain Bibi should neces sarily have received gun‑shot injuries if the gun‑shot assault was made on the deceased as alleged by her from a distance of 10 or 15 paces. Nor can it be said that Mst. Hussain Bibi indulged in any contradiction when after describing herself as sitting in her house she had stated later that she and Shafi were sitting on the thala. Surely, the portion of the house where thala is situate although it is separated by a wall from the residential portion can also be described as house being its component part.

11. The discrepancies, between the different statements of Mst Hussain Bibi noticed by the learned Sessions Judge are with regard to her having stated at one place that she had prepared the meal and at another place that her daughter‑in‑law had prepared it and at another place, that her daughter had prepared it. It is well known that in the preparation of a meal even if it is manly prepared by one female of the family other females also give a hand and that possibly was the reason why Mst. Hussain Bibi had been ascribing the preparation of meal sometimes, to herself and sometimes to her daughter or daughter-in‑law. Nothing material turns on this discrepancy. The learned Sessions Judge has further spotlighted a contradiction between the statement of Laung P. W. and that of Mst. Hussain Bibi is…

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