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Petitioner: MOHARRAM AND Another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Tufail Ali A. Rehman Title: MOHARRAM AND Another vs THE STATE Case No.: Criminal Appeals Nos. 27 to 29 and Confirmation Case No. 13 of 1972 Date of Judgment:- Reported As: 1975 P Cr. L J 44 Result: Appeal dismissed
JUDGMENT
JUDGMENT TUFAIL ALI A. RAHMAN, C. J.-----This case arises out of the murder of one Kabool son of Sachal Dedo upon the 3rd of January, 1970 at 3-00 p. m. In the town of Rohri. In stating the prosecution case some difficulty arises because there were two sets of eye-witnesses and although, in major parts of the story, their depositions are much to the same effect there are nevertheless material differences between the two versions given, differences, which have affected the result in the trial Court. While therefore I am stating the prosecution case I am referring to the case set up in the first information report and in the main relied upon by the prosecutor in the trial below though not precisely the one which has appealed to the learned trial Judge. According to this case the deceased Kabool and his cousin Muhammad Jurial, who lived in a village called Khari Mumbrani to Taluka Rohri left for Rohri for making some purchases and about 3 o'clock on that day they were returning alongwith Jan Muhammad who is also a cousin of the deceased and who met them in Rohri, to their village. While they were still in the town, that is to say, near the shop of one Nizamuddin Memon they came across three persons namely Moharram son of Darya Khan, his brother Jiand and one Mumtaz Umrani who is admittedly not related to either of the two. Of these, it is alleged that Mumtaz and Moharram were both armed with 12 bore pistols while Land had a hatchet in his hand. Moharram is said to have challenged Kabool telling him that he had enjoyed all this time and that the day of his death had finally arrived. The reference to enjoyment will be clearer when I state the motive alleged. Moharram then fired at Kabool with the pistol which hit him on the right side of his chest and Kabool, in an attempt to obtain shelter, ran towards the shop of Nizamuddin when he received another injury by a pistol shot by Mumtaz. No further firing by pistols took place but what can only be described as a savage dismemberment of
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the body was then effected by hatchet wounds as a result of which the head was completely cut off, the right and the left legs both cut off from above the ankle joint, and the two hands also cut off' from above the wrist joint. Of the limbs cut off and the head, when finally the police arrived, only the left hard remained with the body while the remaining had been taken away by the culprits apparently as a trophy. Some other witnesses are mentioned in the first information report but since only two of them were examined I specifically mention these only; they are Hussain Bux and A.I Sher. This Hussain Bux is Hussain Bux son of Taj Mohammad a Dedo by case like the deceased and indeed admittedly his maternal uncle. These are mentioned as among the various persons who, although not belonging to the party of the deceased, actually witnessed the crime happening to be in the town at about the same time. At the trial the prosecution examined another Hussain Bux and this Huasain Bux is the son of Dhund and a Memon by case and I propose, therefore, to avoid con--fusion between the two, to refer to them invariably as Hussain Bux Dedo and Hussain Bux Memon respectively; it would have been as well for the clarity of the judgment of the trial Court if the learned trial Judge had also observed some such precaution as he might as well have refrained from describing people as P. W. So and so when, although mentioned in the first information report as witnesses, they have not actually been examined. A.I Sher is mentioned as one of those who saw the incident in common with Nizamuddin as one of the shopkeepers and it is to be remembered that Nizamuddin is the person who owns the shop into which the deceased went in order to obtain shelter; it transpires that Hussain Bux Memon and Nizamuddin are co- owners of this particular shop. 3. The first information report then goes on to recite the fact that, about two years before the incident one Kamal Jiskani who was the uncle of Moharram bad been murdered by the deceased Kabool, who had in fact been tried but was acquitted; the present murder is alleged to be in vengeance for the former. 4. Jurial then went to the Rohri Police Station which is only one mile away from the scene being indeed in the same town and lodged a first information report which bears the time 3-30 p .m.; it was recorded by prosecution witness Shahbaz Dino who was the Head Constable in-charge, the S. H. O. Muhammad Afzal being at that time in the office of the Superintendent Police, Sukkur. However the latter officer was immediately Informed and it is to be remembered that Sukkur and Rohri are virtually sister towns with only the river Indus dividing them and the S. H. O. Came immediately to the scene. 5. The entire investigation in this case has been carried out by the S. H. O. Muhammad Afzal and, upon the day of the incident itself, besides preparing the mashirnama of the scene of offence, the inquest report and sending the dead body for post-mortem examination he mainly concerned himself with recording the statements of witnesses, among whom might be mentioned as of special importance the names of Janan (i.e. Jan Muhammad to whom I have earlier referred) Hussain Bux Memon, Hussain Bux Dedo and A.I Sher. Others mentioned in the F. I. R. Also apparently were examined and the S. H. O. Does name them. Nothing of any significance appears to have been done on the 4th but upon the 5th of January, 1970 it seems that all the three persons named as accused in the first information report, namely, Moharram, Mumtaz and Jiand were arrested. Moharram when arrested was found to wear a shirt and a loin-cloth which appeared to be blood- stained and were, therefore secured by the police. He is then alleged to have taken the police to two places, the first being near the canal where it is said that the limbs of the deceased were thrown into the water and the second a place from where a pistol, country made, but in working order, smelling of powder, was recovered. Rand on being arrested was also found to wear a Malashia shirt which appeared to have been blood-stained and was therefore secured and then went on to lead the police to the roof of his house and produced a hatchet which again was secured it being suspected to be blood-stained. On the 6th Mumtaz, upon being arrested, led the
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police to a place from where a pistol was recovered; this again was country-made and in working order. In his case there is no allegation that he was wearing any clothes which were seized. It might be convenient here to say that of all the articles recovered as being suspected of bearing blood stains the Chemical Analyser has found that the Malashia shirt said to be worn by hand, although it bore stains of blood the blood was disintegrated and it could not be discovered whether or not it was human. The remaining articles were all found to be stained with human blood. That entirely completes a narration of the investigation and nothing thereafter appears to have been done but the accused persons, namely, Mumtaz, Moharram and Jiand were sent up to a Magistrate for committal proceedings upon the 16th January, 1970. The only step that was taken in the meantime by the S. H. O. Appears to be to have the statements of some of the witnesses recorded under section 164 by a Magistrate; if indeed he thought the statements of witnesses under that section was a necessary step to be taken then the earlier be had taken it the better. It is true of course that in the meantime he received the post-mortem notes but this surely could not have been as late as the 14 or the 15th. It is also true that he sent the weapons and the clothes to the Chemical Examiner as also the pistols to the Ballistic Expert but these in any case were received by him long after the 16th of January 1970. The delay does not appear to affect the veracity of the evidence in this case but I think police officers should realise that when the law says that an investigation must be completed within 14 days and the accused then sent up for trial or let it does not follow that they are under any obligation to wait for the 14 days; the spirit of the law underlying the Criminal Procedure Code is to keep to the minimum the period of time during which a person is in custody without being convicted and before that, without being even commenced to be tried, but it seems to me that the S. H.O. Regarded, as the police are wont to regard the period of 14 days as a kind of limitation prescribed within which steps may be taken and that there is no necessity of explaining why they were not taken earlier when they could easily have been so taken. This is quite apart from the fact, a matter which does not arise in the present case; of evading the statutory provisions with regard to the 14 days limit by submitting what are commonly called interim charge-sheets. 6. In due course the three accused were sent up to the Court of Sessions where the learned Addl. Sessions Judge, Sukkur sitting at Khairpur tried them and acquitting Rand, found the other two guilty of offences punishable under section 302 of the Pakistan Penal Code read with section 34 and sentenced them both to death. Both of them have appealed and we are also called upon to examine the case for the purposes of the confirmation of the sentence of death. 7. The statements of the accused persons were a complete denial including a denial of the recoveries alleged to have been made from them and of the motive; except in the case of the acquitted accused Hand however in whose case evidence was led on behalf of defence. In his case two witnesses were examined for the purposes of proving an alibi and this has appealed to the learned Judge, who at one place in his judgment plainly holds that the evidence clearly shows that the appellant was where he claimed to be at the relevant time. The general tenor of his judgment however appears to be that he had other doubts about the presence of Band also and, elsewhere in the judgment, as clearly he states that the case of Rand is doubtful and the acceptance of his alibi therefore does not recoil upon the question whether the other two accused persons participated in this crime, though he does not use precisely that language. Although therefore Band is acquitted since he led evidence of alibi it will become necessary in this case to see what effect, if any, that should be allowed to have upon an appreciation of the evidence against the appellants. 8. As will have been gathered from the narration of the prosecution case as I have given it the case for the conviction of the appellants depends almost entirely upon the evidence of the five eye- witnesses except that in the case of Moharram there is the fact of the recovery of shirt and loin- cloth which he was wearing at the time when he was arrested and which have been found to be
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stained with human blood. It is true that Jiand also had produced a hatchet which has been found to be stained with human blood and also that the shirt that he was wearing was stained with blood although the Chemical Analyser could not on account of its disintegration say whether the blood was human. The case however of Jiand is not before me and this circumstance therefore is hardly corroboratory evidence against the appellants; on the contrary the question would arise whether in accepting one version or the other of the prosecution case his attribution of the discovery of a hatchet to Rand fits in with the facts satisfactorily found or militates against them. It is also true that both Mumtaz and Moharram are alleged to have led the police to two different places from where a country-made pistol which was recently discharged was found but since it has not been found possible by means of expert evidence to connect either of these against the appellants. Indeed it was argued before us that the alleged discoveries were proof of the falsity of the prosecution case but that argument rests upon the foundation that one and one only of the culprits could have been armed with a pistol, and, although I do not at this stage, accept the argument, it is clear that, assuming even that the argument being correct, it leads to no such conclu--sion. The fact that a person is in possession of a weapon, whether legally or otherwise, it is no proof that he was concerned in a crime in which a weapon of that kind was used is equally no proof that he did not take part in such a crime. It is a circumstance therefore that upon the whole I am inclined to reject as entirely valueless for my present purpose. The case therefore must depend essentially upon the assessm ent of the truthfulness of the witnesses and, since as I have already stated there are differences upon certain fairly important questions in this case, finally upon the resolution of the differences and the conclusion that is eventually reached as to what facts may be stated to be established beyond any reasonable doubt and it is upon these facts as finally found that the convictions would have to be maintained or reversed. 9. Of the five eye-witnesses in this case three namely Muhammad Jurial, Jan Muhammad and Hussain Bux Dedo are related to the deceased while the other two, Hussain Bux Memon and A.I Sher, are not and it would be convenient to refer to each of these groups collectively as the related and the unrelated witnesses respectively. Learned counsel who appeared for the appellant before us argued that the version of these two sets of witnesses were contrary and therefore we should without anything further reject the entire ocular testimony and since the only circumstantial evidence against one of the appellants being obviously insufficient to sustain a conviction there should be an acquittal in this case. He of course raised other arguments with which I will deal in their proper context but so far as this particular contention is concerned I feel free to say even at this early stage, that the argument that the evidence of witnesses must be rejected merely because there are contradictions is founded upon a principle of assessment, if it can be called a principle at all, which is to my mind as unrealistic as it is facile and mechanical. I consider it is the duty of a Court to scrutinise the entire evidence giving such contradictions their due weight, making allowances for the frailty of human memory as also for motivated falsehood and then deciding how much can be safely accepted as true beyond reasonable doubt which is the standard of proof accepted by our Courts in criminal cases. It is worthwhile however to notice just now the major difference in the versions given by the related and the unrelated witnesses. According to the related witnesses Moharram having challenged the deceased, fired at him on account of which the deceased ran towards the shop of Nizamuddin and in the meantime Mumtaz fired at him; when the deceased finally reached inside the shop of Nizamuddin, Moharram fired yet again. All the three-named culprits then dragged him out whereafter Jiand chopped him up. The only small minor variation is that Hussain Bux Dedo does not mention that Mumtaz did any firing. On the other hand Hussain Bux Memon says Kabool running towards his shop followed by Mumtaz and Moharram who fired at him with the result that he fell down inside the shop. The culprits that is to say, Moharram and Mumtaz then dragged him outside where him up. A.I Sher who also is a
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shopkeeper gives much the same account except that he says that his attention was first drawn by . . . . . The noise of the fire on shots. The main differences therefore are that while the related witnesses mention three culprits of whom they attribute pistols to Moharram or Mumtaz, the present appellants and a hatchet to the acquitted accused, the unrelated witnesses, on the contrary, say that they were first attracted by the commotion caused either by the firing or by the deceased running up to the shop; there is hardly any difference between the two as people are unlikely to remember, in an unexpected and dramatic event of this kind, which preceded the other. Neither of the unrelated witnesses mentioned the presence of the acquitted accused at all and neither attributes specifically what each of the culprits did. In both cases their reference to the dismemberment of the body is to the fact that "they" meaning the culprits did so. 10. Now in regard to the related witnesses counsel's main argument of course is that they are related to the deceased and hostile to them, the hostility of course in question being the motive which the prosecution has alleged. It is interesting to note however that each of the accused persons denied this motive in very bald terms merely by stating that it was false. The question of course was not put to Mumtaz at all, since unrelated as he was to Kamal jiskani, the motive could hardly effect him. Neither Jiand nor Moharram with whose case we are of course concerned just not explained what he meant by this falsity, that is to say, whether he meant that no such murder has taken place at all or that the deceased was not tried for it of that in any case it had nothing to do with him. And yet in each case including that of Mumtaz an enmity with the Dedas, that is to say with the prosecution party, is alleged and what is more generally in regard to the prosecution witnesses including the unrelated witnesses also it is stated that they are interested, related inter se acid inimical to the accused persons. Now of course if the motive is false in the sense that the facts which constitute the motive are themselves incorrect it might leave the prosecution without a discoverable motive but if it is otherwise satisfactorily established that the accused committed the murder this would not matter. On the other hand the string of such a finding would be that the witnesses would have to be held to be completely disinterested at least in the sense that they are not hostile to the accused persons though of course the related witnesses would be interested in the deceased. It seems to me to be a pity that the prosecutor could not establish the facts of the earlier murder by any better means then the oral evidence of these witnesses; surely certified copies of the judgment in that case should not have been difficult to procure. As I have had occasion too often to say, however, it has become currently the fashion to present cases in Court without that careful documentation which I think it is the duty of a public prosecutor both to the Court and to the prosecution to display particularly in such a serious case as murder. Nevertheless, since it is the case of the prosecution itself that there was this previous incident of murder and that it was the cause of the present one, the witnesses who are related must be regarded as being hostile at any rate to Moharram and his brother the acquitted accused Jiand, Mumtaz who is not related to the other two accused persons would not of curse be within the pale of this enmity; the prosecution have not chosen to say why Mumtaz should join in the crime but so far as that goes all the real criticism against the prosecu--petition comes to is in rely this that no motive has been shown against him. Stretching the argument in favour of Mumtaz however, if it is the prosecution case that Mumtaz would lead his support to Moharram by reason of some other interest that he had in the latter, possibly one of friendship, then in his case too the evidence of the related witnesses should be regarded as that of hostile persons. It has already been noticed that Mumtaz himself does attribute enmity with the witnesses though he gives no details whatever. Dealing however with hostile witnesses the Curt is entitled, and indeed even bound, to scrutinize their evidence with special care particularly to see whether there is any danger of their having added to the list of genuine culprits others but I really cannot accept the argument that the learned counsel
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put forwarded that having shown that they are hostile witnesses their evidence must be rejected out of hand. 10. The first question that I propose to consider about the related witnesses is the likelihood of their being at the scene. Learned counsel for the appellants argues that the witnesses are chance witnesses; now I must confess for my own part that I have never fully under stood the meaning of the phrase "chance witnesses" as it is commonly and freely used in our Courts and the easy assumption that is made that by itself, it suffices completely to reject their evidence. If by the expression is meant a witness who is unable to explain why he was present at the scene of offence at the time when the incident occurred, I do of course understand that such a witness should be regarded with suspicion and that his evidence should not be lightly accepted. But surely by the expression one cannot mean a witness who is not according to the normal routine that he . . . . . . . . . . . . Follows expected necessarily to be at the place and time which he alleges that he was; if a murder was to take place, let us say in a busy street in Karachi, there are likely to be hundreds of people who might have good reason to be there but whose ordinary routine would not include their being there at that particular time or the day in the normal course. There might be people who have come to shop, others on their way to different parts of the city and possibly even persons who having nothing better to and were merely sight seeing. If one has to go from one point in a town to another and can do so by two different routes most of us would be hard put to say why we chose one route and not another. It is true of course that people like shopkeepers would not merely have a reason to be there but that their presence is almost guaranteed by the fact that they had need to be there and that it is in their normal routine to be there. It does not follow that every one else who does happen to be there is a chance witness and therefore a perjured witness. The point of the matter really is; does the witness satisfactorily explain why he was there at that particular time? It is obvious that on this criterion the question whether the incident took place in a busy, locality like a street in a town which is the present case or in a comparatively isolate area in the country-side would have an important bearing on what is a chance witness. Learned counsel's argument is that according to the evidence of the first informant Muhammad Jurial he prosecution witness Jan Muhammad and the deceased had come to `Rohri for purchasing vegetables. The counsel argued that they had no reason to do so and that they were living about two miles away from Rohri. Now in the first place I do not think it is at all unusual for villagers to walk up some two miles or so to a nearby town for buying things but, assuming that vegetables were more easily available nearer their own village, even then it does not necessarily show that they could not have come to Rohri for that purpose. Assuming a step further and holding that it was improbable that they should have done so it still does not follow that they infact did not do so. The argument that a particular allegation is improbable has always seemed to me absolutely futile in the face of unimpeachable evidence that it infact is true. If upon the argument of learned counsel the witness Muhammad Jurial was a chance witness then the deceased Kabool was, as it were, a chance deceased, and yet it cannot possibly be denied that Kabool was murdered in Robri at 3-00 p.m. On the 3rd of January, 1970. It would be strange indeed to hold that because neither Muhammad Jurial nor the deceased had any occasion for coming to Rohri on that particular day, therefore, although it is conclusively proved that the deceased did, it must be held that the witness did not; this is not after all the kind of case where it is alleged that the deceased had some good reason for going and that Muhammad Jurial merely accompanied him for the sake of doing so. The murder did not take place in a desolate place and the body found much later. Whatever view may be taken of the ocular evidence it would be too grossly exaggerated a view to take of the assumed mendacity of the police to imagine that a crime like this could be suppressed or that it was not taken any notice of by the innumerable persons who must have been nearby. I have, therefore, no difficulty what-- ever in holding that Muhammad Jurial was infact there. His presence is further borne out by the…
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