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Petitioner: HABIBULLAH VS Respondent: THE STATEHonorable Justice ABDUL KADIR SHAIKHTufail Ali A. Rehman,Ale-Raza
1968 P Cr
1968 P Cr. L J 1646
[Karachi]
Before Feroze Nana Ghulamally and Abdul Kadir Shaikh JJ
HABIBULLAH AND OTHERS-Appellants
Versus
THE STATE-Respondent
Confirmation Case No. 39 of 1966, decided on 20th July 1967.
(a) Penal Code (XLV of 1860),
S. 302---Murder-Evidence----- Evidence of two truthful witnesses not needing corroboration-Mere fact that prosecution failed to examine two other witnesses ---Cannot show that such witnesses were unwilling to support prosecution story---No indication that their evidence could have further improved prosecution case-Non-production of such witnesses at trial, held, in circumstances, does not destroy evidence of other witnesses on record-Conviction and sentence of death upheld.
(b) Penal Code (XLV of 1860),
S. 302---Murder---Motive Guilt of accused otherwise proved beyond all reasonable doubts on basis of reliable and cogent evidence Prosecution in such case need not prove real motive prompting accused to commit crime.
(c) Penal Code (XLV of 1860),
S.302----Murder---Sentence ---Accused taking part in offence but not doing actual killing-Lesser sentence-Transportation for life, held, would meet ends of justice.
Tufail Ali A. Rehman for Appellants.
Ale-Raza for the State.
Dates of hearing: 29th June and 4th July 1967.
JUDGMENT
ABDUL KADIR SHAIKH, J.-This case has come before us on a reference under section 374, Criminal Procedure Code, from the Additional Sessions Judge, Larkana, for the confirmation of death sentences awarded to convicts Habibullah, Sher and Khakan, and also on a joint appeal filed by all the five convicts, the remain ing two being Ghafoor and Ahmad, who have been sentenced to transportation for life. The prosecution case may be summarised as under.
2. Both the parties live in a small village consisting of about 15 houses, known as Goth Ali Murad Bhutto, situated a couple of miles away from Larkana Town. Deceased Allah Wasayo, his mother Mst. Azizan and his cousin's son Khuda Bakhsh lived in a house next to that of his cousin appellant Ahmad. Khuda Bakhsh was employed by the deceased to look after his cattle and to plough his land. The other four appellants are related inter se, in that Sher is a cousin of Ghafoor, and Habib ullah is married to the sister of Khakan. Mst. Pathani daughter of appellant Sher was married to Ghulam Nabi Bhotto, who lived near the house of Mst. Pannah Khatoon sister of the deceased. It is said that about 15 days before the incident, the deceased was coming out of his sister's house but Shahan son of appellant Sher, suspected that he had visited his sister as he was in toe with her. This suspicion is alleged to be the motive for the subsequent murder of the deceased on the night of the 30th of October 1963.
3. At Tripahri time that day, appellant Ahmed came to the house of the deceased and invited him to a film show at Larkana. The deceased accepted the offer upon which Khuda Bakhsh requested the deceased to take him also. The three of them then went to Larkana riding two cycles, one belonging to deceased and the other taken by Ahmed; Khuda Bakhsh sharing the ride with deceased. After the film show was over, the three companions started their return journey for home but this time deceased rode on Ahmed's cycle as its dynamo was working, and he carried Ahmed on the rear-carrier of the cycle, while Khuda Bakhsh followed them on deceased's cycle. When they were on a Katcha road on Fateh Wah, Ahmed asked the deceased to halt as his shirt was entangled in the wheel of the cycle. All the three therefore got down from the cycles. At this moment, Ahmad gave a shout "Ache Viyo" (has arrived) upon which appellant Habibullah emerged from the garden nearby, carrying a hatchet in his hand, and attacked the deceased. Khuda Bakhsh and deceased successfully warded off the blows but the other three appellants, also carrying a hatchet each, almost immediately appeared on the scene. Ghafoor held Kbuda Bakhsh in his grip and took him aside, while the other appellants attacked the deceased with their weapons, except for Ahmed who ran away on his cycle. After the deceased was done to death, the four appellants left the spot threatening Khuda Bakhsh with dire consequences if he gave evidence against them.
4. Khuda Bakhsh then took the cycle of the deceased and came crying to the house of the deceased to inform his mother, Mst. Azizan, who was awaiting the return of his son. He told her what had happened upon which Mst. Azizan went to the house of Shah Nawaz Bhutto and other persons in the village, and subsequently came to the scene of offence in their company. She found her son lying dead on the spot as described by Khuda Bakhsh. She then sent for Haji Jio and informed him of the incident, and on his advice proceeded to the Larkana Police Station, the same night, where she lodged first information report Exh-7-A, at 11-45 p. m. Fateh Muhammad, S. H. O. who recorded the report, immediately came to the scene of offence and kept guard over the dead body of the deceased for the night. In the morning of the next day he carried out the usual Police investigation during which deceased was sent for post-mortem examination. Dr. Badruddin of the Civil Hospital, Larkana who conducted the post-mortem examination, noticed the following injuries on the person of the deceased:
"(1) A transverse incised wound 7" x 2' x deep to great blood vessels of the neck on both the sides, trachea, oesophagus gullet, Adam's applier, critiod cartilage, thyroid lobe and cutting completely 3rd and 4th cervical vertebrae over the middle front part of the neck, being attached by a tag of skin only.
(2) An oblique incised wound 5" x 1 " x deep to great blood vessels of the neck and cutting the fifth cervical vertebrae on the left lower outer part of the neck.
(3) An oblique incised wound 4" x 1" x cutting the 1st left rib above the middle of left collar bone.
(4) A vertical incised wound 1" x " x muscle deep on the front of the right shoulder."
The internal examination revealed that the first left rib was cut by external injury No. 3. Both sides of the heart were empty, but all the other organs were normal. According to the doctor, all the injuries appeared to have been caused by a sharp-cutting weapon such as a hatchet and were ante-mortem, the first two injuries being individually and collectively sufficient in the ordinary course of nature to cause death.
5. The prosecution case against the accused, at the trial, consisted of the ocular testimony of Khuda Bakhsh, as corroborated by Mst. Azizan the mother of the deceased and P. W. Muhammad Hassan Jamali, who was attracted to the scene on the commotion of several persons from there. Khuda Bakhsh gave the details of the incident in the manner stated above. Mst. Azizan spoke of the departure of her deceased son along with the two companions, on the cycles to see a cinema show at Larkana at the invitation of appellant Ahmad, and later of Khuda Bakhsh's return alone on the deceased's cycle with tears in his eyes and conveying the news of the murder of her son. The house of Muhammad Hassan Jamali is situated near the area of the scene of offence. He was sleeping in his house when, at Somahai time, he woke up on the noise of several persons from the Vardat nearby. On reaching there he was told by Mst. Azizan and Khuda Bakhsh of the story of the murder of the deceased who was already known to him.
6. In defence the appellant Habibullah denied the prosecution allegations and stated that the prosecution witnesses had falsely implicated him on account of enmity. He further stated that the deceased was a bad character and he had several enemies. He had prosecuted Abdullah and six other Mir Bahars under section 107, Cr. P. C. thereby suggesting that the deceased may have been murdered by the Mir Bahars. In support this he produced true copies of two applications made by the deceased against the Mir Bahars, and copies of Police challan and case diaries, Exhs. 13-A to 13-D. 'The appellant Sher relied on the statement of Habibullah and further stated that he had beaten Khuda Bakhsh on account of which he had implicated him. The defence of the other appellants similarly was denial of the prosecution case and plea of false implication on account of the enmity.
7. The learned counsel appearing for the appellants in support of the appeal urged that there are various circumstances on the record of this case which cast grave and serious doubts as to the genuineness of the story put forward by the prosecution as to the manner in which the deceased was done to death. He pointed out that Shah Nawaz and Haji Jio, the two persons to whom Mst. Azizan had narrated the story, whose names also appeared in the F. I. R: were not examined by the prosecution at the trial, but instead Muhammad Hassan Jatnali whose name was not mentioned in the F. I. R. was produced in corroboration of the version of Khuda Bakhsh and Mst. Azizan. As against this witness it was pointed out that on his own` showing he had a grievance-against the appellant Sher, as in the theft case filed by one Dodo Sangi, his relative Allah Bakhsh Jamali had appeared as a witness. In this connection the learned counsel further pointed out that two relatives of Muhammad Hassan Jamali namely, Ilahi Bakhsh and Allah Warayio, Jamalies, were admittedly the haris of the deceased. The learned counsel therefore urged that it was this connection with the deceased and the enmity with appellant Sher that had prompted Muhammad Hassan Jamali to come forward and depose against the appellants.
8. The learned counsel then urged that the presence of Khuda Bakhsh on the Vardat at the time of the incident is highly doubtful because the story of his having accompanied the deceased and appellant Ahmed to the cinema show at Larkana is not supported by any recovery of the counterfoils of the cinema tickets from either his person or from the person of the deceased, and further that the cycle marks were not noticed on the Vardat when the Police prepared the mashirnama of the scene of offence Exh. R-A. The learned counsel in this connection further urged that it is improbable that the deceased would have accepted the offer of appellant Ahmed and accompanied him to Larkana if the prosecution version as to the motive is true i.e., Ahmed appellant also belonged to the party of the other appellants, who suspected the deceased to be in toe with a woman of their household. The learned counsel finally urged that the motive put forward by the prosecution cannot be believed, and was not even supported by the learned Assistant Public Prosecutor appearing before the Sessions Court, arid according to the learned Additional Sessions Judge also it appeared to be very weak. The learned counsel referred opinion of the learned Additional Sessions Judge that the real motive was something else and it was quite possible that appellants had murdered the deceased for the sake of his agricultural land.
9. We have given this case our most anxious consideration because the whole of the prosecution case against the five accused rests on the solitary ocular testimony of Khuda Bakhsh, as of course corroborated by the mother of the deceased and Muhammad Hassan Jamali. Khuda Bakhsh was no doubt related to the deceased being a son of his cousin and also that he had a further interest in him being his employee, but at the same time it has to be remembered that appellant Ahmad is also his close relation being a cousin and the next door neighbour. Not a single word has been said by Ahmad against Khuda Bakhsh suggesting any ill-will or enmity borne by Khuda Bakhsh against him. It would be beyond reason to suggest on the facts and circumstances on record of this case that Khuda Bakhsh would falsely implicate his cousin Ahmad on such a serious charge of murder for the sake of the deceased who was his father's cousin. Another striking feature of this case is that the first information report was lodged very promptly, giving all the details as to the manner in which the deceased was done to death, at 11-45 p.m. on the night of the incident. Taking into consideration the time taken by Khuda Bakhsh in conveying the news of deceased's murder to Mst. Azizan, who in turn was seeking the help of co-villagers and going to the spot to verify the murder of her son, and then covering the distance during the night to the Police station, there can be no doubt as to the time of occurrence at 9-30 p. m. as shown in the first information report. Another significant feature of this case which is extremely difficult to rule out is the statement of Mst. Azizan that her deceased son had gone in the company of appellant Ahmed and Khuda Bakhsh on the cycles to see a cinema at Larkana at the suggestion and invitation of appellant Ahmad. There is no indication on record as to why Mst. Azizan should have falsely set up this story which was put forward without loss of time in the circumstances when the possibility of fabrication was practically nil. There is no reason why Mst. Azizan should falsely implicate appellant Ahmad, who is not only a very close relation of hers but also her next door neighbour, for the murder of her son. Appellant Ahmad has again not suggested any reason which would prompt Pt. Azizan to falsely implicate him. We have therefore no doubt as to the prosecution version, as coming from the mouth of Mst. Azizan, that her son had gone on that day at Tripahri time in the company of Appellant Ahmad and Khuda Bakhsh to Larkana to see a cinema show there, and that she got the news of her son's murder from Khuda Bakhsh, who came on deceased's cycle with tears in his eyes when she was awaiting the arrival of her son, and told her how and by whom her son was murdered. We have also no hesitation in believing the word of Mst. Azizan that on receiving this news she contacted the other co-villagers and came to the scene of offence in their company to see her son whom she found already dead. This poor woman did not rest that night until she herself went to the Police station and lodged the report of the murder of her only son, and brought the S. H. O. to the scene with herself. It was urged that this conduct was unusual as Khuda Bakhsh or somebody else should have been deputed to lodge the first information report of that odd hour of the night. But this argument loses sight of the sacred motherly love especially of a mother who had lost her only son. The fact remains that Mst. Azizan did go to the Police station that very night and lodged the report. The distance she had to cover was only about two miles, and on the facts and circumstances of this case, it cannot be said that she had herself to go and report a false version which nobody else was willing to support.
We have no doubt therefore that Khuda Bakhsh is a true witness of the occurrence, he being in the company of the deceased and appellant Ahmad as stated by him. His presence on the scene cannot be doubted for the reasons that the counterfoils of the cinema tickets were neither recovered from his person nor from the person of the deceased for it is not ordinarily expected of a visitor to a cinema show to preserve the counterfoils of the cinema tickets after the show is over. From the questions put to Khuda Bakhsh in the cross-examination we find that he was not directly called upon to explain the absence of the counterfoils from his person or from that of the deceased. The relevant answers given to the question put to him are as under:
"Ahmad purchased all the three tickets. Every body kept the counterfoil of his ticket in his shirt pocket. I had two pockets in my shirt. I had Bidies in the pocket where I had kept the counterfoil I did not produce the counterfoil of cinema ticket before the Police."
In his otherwise detailed cross-examination it thus appears that no direct question was put to him as to why the counterfoil of the ticket was not produced by him or any recovered from the person of the deceased. If a direct question was put to him he may have explained that he destroyed or threw away the counterfoil, or that it was lost during the scuffle he had with appellant Ghafoor during which his shirt was torn; and that the deceased may have also destroyed or thrown away the counterfoil after the cinema show. In any case the non-recovery of the counterfoils from the person of Khuda Bakhsh or the deceased is not sufficient, on the facts of this case, to come to the conclusion that the prosecution story that the deceased had gone in the company of Khuda Bakhsh and appellant Ahmed to Larkana to see a cinema show is false. Similarly the absence of the cycle marks on the spot at the time of preparation of the mashirnama is also not a circumstance indicating the falsity of this story because admittedly many persons had. afterwards reached the Vardat which is on a Katcha road leading to Larkana Town, and which must have been trampled upon by several passers by uptill the time the mashirnama Exh. 8-A was prepared on the morning of the next day of the incident. Khuda Bakhsh no doubt at the end of the cross-examination admitted that about a month before the incident the appellants had beaten him while he was ploughing the land of the deceased and on that account he did not even talk to them since that day, but we agree with the Additional Sessions Judge that he has tried to say something obliging for the first time in the Sessions Court. We have also no reason to believe that due to this incident, even if it were true, Khuda Bakhsh would falsely implicate the appellants in substitution for the real culprits. We have already held that he was in the company of the deceased and appellant Ahmed as stated by him. We are therefore of the opinion that the criticism against Khuda Bakhsh levelled by the learned counsel for the appellants is not sufficient to cast any legitimate doubts as to his presence on the scene of offence as stated by him.
11. The deceased no doubt was known to Muhammad Hassan Jamah but it is also difficult to accept that he would falsely implicate the five appellants on such a serious charge of murder just because h 's two relatives were the haris of the deceased, and one of his relatives was a witness in a theft case filed by Dodo Sangi against appellant Sher. Muhammad Hasan Jamali appears to be a respectable person, being a B. D. Member of Bakapur Union Council, and except for the above criticism against him, there is nothing else to suggest why his word should not be believed. Admittedly his house is near the Vardat and it would be reasonable to believe that he .was attracted to the scene on the night of occurrence on the commotion of several persons coming from there. The omission by Mst. Azizan of mentioning his name in the first information report is not so grave because after all he was not an eye-witness to the occurrence. Similarly the fact that the prosecution did not produce Shahnawaz and Haji Jio in corroboration of the statements of Khuda bakhsh and of Mst. Azizan is not fatal to the prosecution case, as in our opinion both Khuda Bakhsh and Mst. Azizan are truthful witnesses, and no corroboration of the type that would have been furnished by these witnesses is necessary. From the mere fact that the prosecution failed to examine these two persons, it cannot be 0 legitimately said, on the facts and circumstances of this case, that these persons were unwilling to support the story of the prosecution. They could not have further improved the prosecution case, and their non-production at the trial, in our opinion, sloes not destroy the evidence of other persons on record.
12. As to the motive suggested by the prosecution, we agree with the learned Additional Sessions Judge that the real mason that prompted the appellants to murder the deceased may be something else but this aspect of the case, in our opinion, is not sufficient to throw any doubt as to the guilt of the accused which otherwise stands proved. We may, therefore, repeat that is by now a settled position in law that the prosecution need not prove) the real motive that prompted an accused to commit the crime, if his guilt is otherwise proved beyond all reasonable doubts on the basis of reliable and cogent prosecution evidence. The present case is one of the type in which the absence of proof of the real motive is not at all fatal to the prosecution case.
13. We would, therefore, uphold the conviction of all the appellants for the offence under section 302 read with section 34, P. P. C. and also the sentences awarded to them. The murder of the deceased was no doubt a pre-planned murder, appellant Ahmed having staged the presence of the deceased at a particular spot where the other four appellants were awaiting, in the ambush in the fruit garden surrounding the Katcha road only which the deceased was to travel on his last return journey to his house from Larkana after the cinema show was over, which he could not make. Appellant Ahmad, therefore, clearly shared the common intention with the other four appellants for the murder of the deceased, but as he and appellant Ghafoor did not do the actual killing, we feel, as did the learned Additional 1 Sessions Judge, that the lesser sentence under the law, namely, transportation for life, would meet the ends of justice so far they are concerned; while the extreme penalty under the law, namely, the death, is rightly and adequately justified in the case of the three appellants Habibullah, Sher and Khakan. We, therefore, confirm death sentences awarded to these three appellants, and dismiss this joint appeal by the five convicts.
Appeal dismissed.