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Petitioner: SIDDIK VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Dorab Patel, Abdul Hayee Qureshi, Muhammad Haleem Title: SIDDIK vs THE STATE Case No.: Criminal Appeal No. 403 of 1971 and Confirmation Case No. 3 of 1972 Date of Judgment:- Reported As: 1975 P Cr. L J 353 Result: Appeal accepted
JUDGMENT
JUDGMENT DORAB PATEL, J.-The appellant has been convicted by an Additional Sessions Judge, Nawabshah, under section 302, P. P. C. For the murder of one Ghulam Kader Dahri and sentenced to death. The case has come up before us for confirmation of the sentence of death passed by the learned Additional Sessions Judge and as the appellant has also filed an appeal against his conviction and sentence I shall dispose of the appeal and the reference by this judgment. 2. Ghulam Kader Dahri was murdered on 26th August 1968, whilst the appellant's son had been murdered some time before this date, and the appellant had filed a direct complaint against Ghulam Kader Dahri and six others for the murder of his son. In the events that happened, the complaint filed by the appellant was transferred to the Court of the Joint Civil Judge and 1st Class Magistrate, Nawabshah, but Ghulam Kader Dahri deceased had moved an application in the High Court for the quashment of the proceedings against him. This application was allowed by this Court on 23rd August 1968, and the case instituted by the appellant was fixed in the Court of the Joint Civil Judge and F. C. M., Nawabshah on 26th August 1968. Ghulam Kader Dahri deceased and others had come to the F. C. M.'s Court on 26th August 1968, and according to the prosecution the appellant was also present in Court when his case was called. He bad with him a gun wrapped in a sheet which he had naturally not brought into the Court room. The case was adjourned at the instance of Ghulam Kader Dahri deceased because of the order obtained by him from the High Court, and according to the prosecu--petition, after the adjournment of the case, Ghulam Kader went out of the Court room with P, Ws. Jan Muhammad and Jiwat Mal, The appellant followed him, and, presumably after picking up his gun, he fired at Ghulam Kader, who was hit and fell down. As the incident occurred in the compound of the Court, it was witnessed by many persons including P.
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W. Samo, the Chauffeur of the deceased, and P. W. Ajaib Hussain Shah Police Constable, who had brought the under-trial prisoners to Court on that day. Accordingly, as the appellant ran away after firing at the deceased, P. Ws. Samo and Ajaib Hussain Shah Police Constable chased him. P. W, Muhammad Pinjal, Police Inspector, who was also in the Court building and had come out on hearing the gun-report, joined in the chase of the appellant. They overtook the appellant near the office of one Mr. Ahmad Nawaz, Advocate. The appellant threatened his pursuers with his gun, but P. W. Muhammad Pinjal, Police Inspector, told the Constable Ajaib Hussain Shah to fire his gun in the air. The appellant thereupon gave up resistance and allowed himself to be arrested with his gun. P. W. Muhammad Pinjal, Police Inspector, secured the gun by a Mashirnama (Exh. 9) which was witnessed by P.W. Pir Muhammad Waris. The gun was containing one live and one empty cartridge. After securing the gun, P. W. Muhammad Pinjal produced the appellant before P. W. Zarar Hussain who was Incharge of the New Town Police Station, Nawabshah, whilst P. W. Samo lodged the F. I. R. (Exh. 11). The police thereafter began investigations, but I have to observe here with great regret that there was considerable delay in recording the statements of witnesses. In due course, the gun and the empty secured were sent to the Ballistic Expert for his report, and according to his report (Exh. 41), the empty secured was fired from the gun of the appellant. After completing investigations the appellant was challaned as stated. 3. In support of its case, the prosecution examined, P. Ws. Jan Muhammad, Ghulam Muhammad, Jiwat Mal and Ajaib Hussain Shah as eye--witnesses of the occurrence. It also examined P. W. Pinjal, Police Inspector and P. W. Pir Muhammad Waris the mashir as well as the Investigation Officers. Finally, it is sufficient to state that it examined P. W. Dr. Sharif, who had carried out the post- mortem of the deceased, and his evidence proves beyond doubt that the deceased was killed by a gunshot wound. 4. The appellant's plea was one of denial and he alleged that he had been falsely implicated on account of enmity. Further, be produced con--siderable documentary evidence in support of this plea of enmity. He also denied his presence at the wardat on the day of the occurrence and in support of this plea of alibi he examined D. W. Ayub Hassan, the F. C. M., Nawabshah, before whom the deceased had appeared on the fatal day. He also denied his arrest and the recovery from him of his gun by P. W. Pinjal, He said however that he had been arrested by P. W. Zarrar Khan, A. S. I. In the `bazar' of Nawabshah and taken to the police station. Finally, he admitted having used his gun, but he said that he had used it to fire at a dog who was trying to attack him. 5. The learned Additional Sessions Judge was impressed by the evidence of the eye-witnesses, including their evidence about the appellant's motive for the crime. He however noted that there were dis--crepancies in the evidence of the eye-witnesses, but he thought these discrepancies were not material. But as I have said, there was considerable delay by the police in recording the statements of witnesses, and according to the defence, this was on account of the influence of the party of the complain--ant. The learned Additional Sessions Judge did not accept the plea of the accused and expressed the opinion that the delay in recording the statement of witnesses was due to negligence on the part of the investigation agency. He also held that the ocular evidence was corroborated by the evidence of the recovery of a gun from the appellant and the evidence of the Ballistic Expert. He therefore convicted the appellant as stated. 6. I have observed earlier that the learned Additional Sessions Judge was impressed by the prosecution evidence of the motive of the crime, and I may recall here that proceedings against the deceased bad been instituted on a direct complaint filed by the appellant, but the proceedings against him had been quashed by this Court on 23rd August 1968, therefore when the case was called before the F. C. M., Nawabshah on 26th August 1968, the deceased had drawn the attention of the Court to the order of the High Court and he had been given time to produce this Court's order of quashment. According to P. W. Samo and others, the appellant was enraged by the
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success of the deceased, hence the murder. On the assumption, which I shall presently examine, that the appellant knew of the High Court's order, he no doubt had a motive for the crime, but it is obvious that the deceased would have enmity with him for the false charge brought against him, and not less so because, unlike the appellant, the deceased was an important local figure. The appellant has also alleged enmity on account of political rivalries and the further ground that he was a prosecution witness in a case registered against the deceased under the Goonda Act, and although the Police Officers professed ignorance of these proceedings against the deceased, the plea of the appellant is fully. Supported by the judgment of the Sessions Court, Nawabshah dated 29-11-1969 (Exh. 61) in Criminal Appeal No. 111/66. I am therefore satisfied that the appellant's plea of enmity is correct, and it is unfortunate that the Sessions Court ignored it, because P. W. Samo was the faithful retainer of the deceased, whilst P. W. Jiwat Mal was his partner in a factory, and P. Ws. Jan Muhammad and Ghulam Muhammad belonged to the same political party as the deceased. 7. Additionally, it is relevant to remember here that the appellant had stressed this question of political rivalry in his section 342, Cr. P. C. Statement and this has been proved to hilt by the admissions of P. W. Jan Muhammad in his cross-examination. This witness admitted in cross- examination that he "had thick connections with the deceased" and said "I, my uncle Imamali, the deceased and Ghulam Mustafa Jatoi belong to one political group. In 1962, Provincial Assembly Election Gullan Jam had opposed my uncle Haji Imam A.I, Gullan Jam is the headman and party man of the accused. Gullan lost. The accused and his relations had supported Gullan Jam and were voters. In 1965 Elections Shabbir Ahmed Shah opposed my uncle Imamali in Provincial Assembly Elections and accused and his relations supported Shabbir Hussain Shah. In 1965 National Assembly Elections Ghulam Mustafa had opposed Zafarali Shah, who lost. We all, including my uncle and the deceased supported Ghulam Mustafa and Zafarali Shah was supported by the accused and his relations. Uptill today we are political rivals," P. W. Ghulam Muhammad also belonged to the party of the deceased, and I may point out here that when P. W. Samo was cross-examined about these political rivalries he admitted that the deceased and the appellant belonged to different groups, but he attempted to deny the alleged rivalry. Thus, in reference to the appellant's support of the opposite-party, he said "I do not know if accused and his relations supported Shabbir Ahmed Shah" and he denied having made any admission to the contrary in the lower Court. However, he was confronted with his statement in the lower Court (Exh. 14), in which he had admitted that the appellant and his relations had supported the opponent of his master's group. The attempt of the witness to deny the rivalry is significant, and in the circumstances discussed the evidence of P. Ws. Samo, Jan Muhammad, Ghulam Muhammad and Jiwat Mal cannot be said to be disinterested. 8. As four of the five eye-witnesses examined by the prosecution were interested witnesses, the question whether the F. I. R. (Exh. 11) was lodged promptly becomes important. The occurrence took place at 10 a.m. And according to the prosecution the report (Exh. 11) was recorded half an hour later by P. W. Zarrar Khan, A. S. I. As the police station was virtually at the wardat, Mr. Ghulam Nabi Memon submitted that even this half hour meant there was delay in lodging the F.I.R. And he also drew our attention to an in--terpolation in the F.I.R. About the time at which it was recorded. There is an interpolation, and this is unfortunate because the time at which the appellant was arrested is of some importance to his defence. But the real point is whether the prosecution has explained its failure to lodge the F. I. R. Immediately. According to the Sessions Court, this could not be done because of the shock and consternation caused by the occurrence, and this explanation would apply to the son of the deceased who by a strange coincidence arrived only after the murder. But what"' about P. Ws. Jiwat Mal, Jan Muhammad and Ghulam Muhammad and it is not irrelevant to point out that P. W. Ghulam Muhammad attempted to disclaim intimacy with the deceased. There is however a more disturbing aspect of the case. According to P. W. Dr. Sharif's evidence, the
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deceased was killed immediately, and this means that a man had been shot dead just outside a police station. The deceased was a very important local personality, according to the prosecution, and the assailant had been identified by at least 4 eye-witnesses, yet the F. I. R. Was not lodged until after the arrest of the assailant. Assuming that the eye--witnesses were too bewildered by the tragedy to do anything, the murder took place virtually at the door of a police station, and it was the duty of the Police Officers to record a complaint immediately. That no action was taken, despite the claim of the prosecution that the identity of the assailant was known, is a circumstance which casts doubt on the investigation agency, and I have to state here with regret that this is one of the several circumstances which cast doubt on the investigation. Turning now to the eye-witnesses their explanation for the delay in lodging the F. I. R. Was that they were over--whelmed by the sudden tragedy. The explanation would have been convinc--ing if the F. I. R. Had been lodged by the son of the deceased or by his brother---in-law Abdul Sattar, both of whom had somehow come to the wardat immediately after the occurrence. But why should P. W. Ghulam Muhammad who attempted to disclaim close intimacy with the deceased, have been so overwhelmed. Similarly, the deceased had been accompanied by a battalion of Advocates, and surely one of them could have rushed to lodge the F. I. R. Again P. W. Jan Muhammad admitted in cross- examination that the S. I. P. And the D. S. P. Had arrived at the wardat but had not "made enquiries from any of the witnesses at the wardat". Is this credible? No doubt, the witness contradicted himself, and said that he could not remember whether the police had made enquiries from the other witnesses. As I cannot believe that the police would not have come to the wardat immediately, the mystery thickens. Mr. Nasiruddin's only submission on this aspect of the case was that there was no delay because the F. I. R. Was lodged by P. W. Samo, who had chased the appellant, and after his capture P. W. Samo had immediately come and lodged the F. I. R. The explanation is not fit to be believed, because it assumes that no one except P. W. Samo was competent to lodge the F. I. R. An assumption which is patently absurd. Finally, I have observed that, P. W, Samo was accompanied by several Advocates when he lodged the F. I. R. At the police station. Although the witness emphatically denied in his evidence that he had been accompanied by Advocates to the police station, P. W. Zarar Khan, who recorded his F. I. R. Said "It is correct that when Samo came to lodge complaint at the police station he was accompanied by Mr. Anwer Ahmed, Advocate, Mr. Abdul Hai, Advocate and Imamali Unar, Ex-M. P. A., and many other people, Mr. Abdul Latif, Advocate, Mr. Abdul Hamid, Advocate, Dr. Muhammad Umar Dahri also accompanied the complainant". Apart from the fact that P. W. Zarrar Khan's evidence exposes how false a witness P. W. Samo was, I am disturbed by another aspect of the case. As the party of the complainant knew so many Advocates, how can the failure to lodge the F. I. R. Immediately be explained away? I am aware that delay was not great, and in this connection Mr. Nasiruddin relied on the fact that according to the F. I. R., the report was lodged within half an hour of the occurrence. But in view of the interpolation in the F. I. R. Can the statement in the F. I. R. Be accepted? And here, as I shall presently show, according to P. W. Pinjal, the appellant was arrested at 10-30 a.m. Or 10-50 a.m. Whilst, according to P. W. Pir Muhammad Waris, the appellant was arrested at about 11 a.m. As, according to the prosecution, the F. I. R. Had been lodged only after the appellant had been produced at the police station, Mr. Ghulam Nabi Memon submitted that it must have been lodged around 11 a.m. So that there was at least an hour's delay. Whether the delay be of an hour or of half an hour, the fact remains that there was delay, and this is unfortunate in view of the bitter enmity between the party of the appellant and of the deceased. 9. I now turn to the ocular evidence and I may at the outset point out that the police recorded the statements of P. Ws. Jiwat Mal and Jan Muhammad after a delay of two days on 20th August 1968, whilst the state--ment of P. W. Ghulam Muhammad was recorded on 31st August 1968. In this background, I would first consider the appellant's plea of alibi. The appellant claims to have been
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ignorant of the High Court's order quashing against the deceased the complaint filed by him, Mr. Nasiruddin submitted that the appellant's plea was not fit to be believed, but the records of this Court were not examined to show whether the appellant or his Advocate were aware or should have been aware of the order pronounced by this Court, and as the burden of proving its case falls on the prosecution, this was unfortunate. Further the appellant bad examined the F. C. M., Nawabshah to prove his plea that he was not at the wardat at the time of the incident because he was not in the Court room when the case against the deceased was called. Mr. Ghulam Nabi Memon naturally relied on the presumption in favour of official records and submitted that -the trial Court had erred in preferring the evidence of the prosecution witnesses to that of the F. C. M., Nawabshah and in this connection he stressed the discrepancies in the prosecution evidence and the improbable nature of its claim. 10. According to Mr. Ghulam Nabi Memon, even if the appellant had wanted to murder the deceased, he would not have been so foolish as to commit murder in the premises of the Court because of the overwhelming possibility of being captured. That the appellant could have chosen a better venue for the attack is obvious, but as murder is not committed on a rational calculation of possibilities, I am not impressed by Mr. Ghulam Nabi Memon's argument. But the question of the discrepancies in the ocular evidence requires examination, the moreso as the Sessions Court has brushed aside them as trivial. Here I must emphasise that the prosecution case is that the appellant was present in Court when the case against the deceased was called. But he is also alleged to have murdered the deceased with a gun, and as no one is permitted to enter a Court room with a gun, the prosecu--petition witnesses had to explain what happened to the appellant's gun when he came into the Court room. P. Ws. Jan Muhammad and Ghulam Muhammad have not said anything on this aspect of the case because they claim that they were never in the Court room. But accord--ing to P. W. Samo, when the appellant went into the Court room, he left his gun "lying wrapped in a chadar in the verandah". And he also said that the gun was "visible a little", but in the lower Court he had said it was not visible at all. On the other hand, according to P. W. Jiwat Mal, "the gun of the accused was not wrapped or covered in any cloth and was visible". I will not go into the question as to which of these conflicting versions is correct because both are absurd. As the prosecution case is that the appellant had come to kill the deceased, it is impossible to believe that he would have left his gun in the verandah, unguarded, when he knew that his mortal enemies were around. To get over this difficulty, P. W. Ajaib Hussain Shah P. C. Put up a different story. He said that when the appellant went into the Court room, he left his gun with a man with a moustache and asked that man to take care of it. He then said as that man was standing very near the Court "I had asked that man not to stand with the gun near the Court. He therefore moved a few paces from there. Accused Siddiq came out and met the man with moustaches". The story sounds extremely plausible, but P. W. Pir Bux who had recorded the section 161, Cr. P. C. Statement of the witness, said: "he (P. W. Ajaib Hussain Shah) has not stated that the accused left the gun in the verandah and asked one person with moustaches to take care of the gun". As P. W. Ajaib Hussain Shah had not referred to the mysterious man with a moustache in his state--ment to the police, it is not possible to believe the story put up by him in his evidence in the Sessions Court, and that a police witness should try to improve upon his evidence in order to bolster up the prosecution case is very unfortunate. But reverting to the facts of the case, as according to the prosecution, the appellant had a gun with him, he could not have been allowed to enter the Court room, therefore, I see no reason whatever to disbelieve the evidence of D. W. Ayub Hassan, the F. C. M., Nawabshah, and in my opinion the contrary view taken by the trial Court is erroneous. However, this is not sufficient to prove the appellant's plea of alibi, because, if he had intended to murder the deceased, it would have been very foolish on his part to have entered the Court room so as to create evidence for himself. Whilst the prosecution version about his entering the Court room is
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false, this does not necessarily mean that the appellant could not have been lurking outside with his gun, therefore, I will now turn to the description of the occurrence by the witnesses. 11. P. W. Samo the complainant said that the appellant had fired at the deceased from a distance of 10 or 15 paces and that as the deceased was falling down he was caught by P. Ws. Ghulam Muhammad and Jan Muhammad. Now in his F. I. R. He had stated that he was with the deceased when the appellant fired, therefore, as the shot had been fired from 10 or 15 paces he should have received injuries also. But he was unscathed, and to get over this difficulty he said in evidence that he was not actually with the deceased at the time of the occurrence, but that he was ahead of the deceased. When questioned about the discrepancy between his statement in Court and the Statement in the F. I. R., he voluntarily explained "that he has so stated in the F. I. R. Because the deceased was following him by a little distance". The explanation is not fit to be believed because P. W. Samo had four Advocates with him when he was recording the F. I. R. Again, if his evidence in Court that the deceased was with P. Ws. Ghulam Muhammad and Jan Muhammad be true, these witnesses should have received injuries, but as they were unscathed this necessarily casts doubt on P. W. Samo's evidence. The trial Court has brushed aside this material discrepancy on the basis of the medical evidence because P. W. Dr. Sharif said that the assailant had fired at the deceased from a distance of 6 or 8 feet and as a shot fired at such close range might not cause injuries to persons accompanying the deceased, the Sessions Court has used this explanation to get round P. W. Samo's evidence. No doubt the doctor's evidence is to be preferred, but the question was not of reconstructing how the crime had been com--mitted, but of the veracity of the eye-witnesses examined by the prosecution, and the medical evidence falsifies P. W. Samo's evidence. Secondly, it discredits the evidence of P. W. Jan Muhammad, because that witness also said that the appellant had fired from about 8 or 10 paces, and I must stress here that in the circumstances of the case the discrepancies about the distance from which the assailant fired cannot be brushed aside as trivial. Again, P. W. Samo said that he had chased the appellant and after his capture by the police he had returned to the wardat, and then he said "Ghulam Kadir was still alive but died soon afterwards". But as according to P. W. Dr. Sharif the death of the deceased was instantaneous, I am not able to be--lieve the statement of P. W. Samo. I would further observe here that I am very poorly impressed by the evidence of this witness. 12. Mr. Ghulam Nabi Memon then submitted that the evidence of the other eye-witnesses was also full of material discrepancies, and I would first consider the argument with reference to the evidence of P. Ws. Jan Muhammad, Ghulam Muhammad and Jiwat Mal. Taking for example, the evidence of P.W. Jiwat Mal, Mr. Ghulam A.I Memon rightly pointed out that this witness was a businessm an and was expected to give evidence clearly. But whilst in the Sessions Court he claimed that he had seen the appellant fire at the deceased, he had stated in the lower Court that he had not seen the appellant firing at the deceased but that he had only seen him running away with his gun. Another aspect of the evidence of this witness which is very relevant, for the reasons which I shall give, is that, according to him, P. W. Pinjal, Police Inspector, had come to the wardat and made enquiries from him about the occurrence, but P. W. Pinjal denied having made any enquiries. Then, as to P. W. Ghulam Muhammad, this witness stated that as the deceased was hit he uttered the word "Siddiq". The attempt of the witness to attribute a sort of dying declaration to the deceased is inconsistent with the evidence of all the other eye-witnesses and even this witness had not said so to the police: Again, whilst he was the `Kamdar' of the uncle of Ghulam Mustafa Jatoi, he said that he did not know whom he had supported in the previous elections. Obviously, the witness tried un--successfully to pass off as an independent witness. Finally, as to P. W. Jan Muhammad, I have already pointed out that his claim that the appellant had fired at the deceased from a distance of 8 or 10 paces is not consistent with the medical evidence. Another point of importance to which Mr. Ghulam Nabi Memon referred…
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