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Petitioner: NAUSHER VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Muhammad Afzal Zullah, Ataullah Sajjad Title: NAUSHER vs THE STATE Case No.: Criminal Appeal No. 790 of 1968 M. R. No. 229/68 Date of Judgment:1970-05-04 Reported As: 1971 P Cr. L J 811 Result: appeal, set aside
JUDGMENT
JUDGMENT MUHAMMAD AFZAL CHEEMA, J.-Vide his judgment dated 1-11-1968, Mr. Muhammad Amir Akbar Khan, Additional Sessions Judge, Lyallpur, convicted Nausher appellant aged 19 years on' to counts, firstly, under section 377, P. P. C. For having sub--jected Akbar Ali deceased, a youngster of about 10 years, to carnal intercourse, with an award of five years' R. I., and under section 302 P. P. C. For having murdered him at the same the and place, with an award of death sentence and a fine of Rs. 5,000 which, if realised, was to b:, paid as compensation to the mother of the deceased under section 544-A, Cr. P. C. In default of payment, he was directed to undergo further R. I. For three years, to be effective in the event of non-confirmation of the sentence of death by the High Court. He has appealed against his conviction and sentences and his case has also been referred to us under section 374, Cr. P. C. For the confirmation of the death sentence. This judgment will dispose of the appeal as well as the murder 2. The short background of the case is that Akbar Ali deceased, the unfortunate victim, having lost his father about 6/7 years prior to the occurrence lived with his uncle Muhammad Sharif complainant P. W. 3 in Chak No. 259/G. B., Police Station Mamunkanjan, District Lyallpur, where the latter cultivated as tenant the land of Nur Ahmad Khan, Gadhi Baluch by caste, who appeared as P. W. 4 at the trial. The deceased and other members of the family resided in their Dhari in square No. 20 of Nur Ahmad aforesaid. Muhammad Din P. W. 12, maternal uncle of Akbar Ali deceased, a resident of Chak No. 205/R. B. Police Station Khurarianwala, had taken on lease an orchard of Lal Khan Lambardar in Chak No. 185/G. B. At a distance of 7/8 squares from Chak No. 259/G. B. In south-west direction. The deceased daily used to carry the morning meals of his maternal uncle from their dhari in square No. 20 of Chak No. 259 to the orchard in Chak No. 185/G. B: on 29-9-1967,
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at about 8/9 a.m., he started as usual towards the orchard carrying four chapattis with some gur and cooked vegetables tied in a printed piece of cloth (Kandoori) P. 2, but never reached the destination. In the evening, when his elder brother Asghar Ali carried the evening meals to Muhammad Din, he complained of the non-receipt of the morning meals which caused them anxiety and apprehension of a foul play. Asghar Ali returned to the Dhari to inform Muhammad Sharif complainant who started searching for the deceased along with his brother Ghulam Nabi P. W. 9 at about 8/9 p m., both of them went to the village mosque of Chak No. 185/G. B. To make an announcement on the microphone about the disappearance of the deceased, but before doing so they happened to meet one Bahadur Gadhi Baluch of village Chak No. 184/G. B. Who told them that he was informed by Jehan Khan, Mahmood, Gaman and Falak Sher in the presence of Muhammad Murad Lambardar that an unidentified dead body of a youngster was lying in the cotton crop of Jehan Khan Gadhi of Chak No. 184/G. B. And that he had himself come to make announcement of the same on the loudspeaker. It may be observed in this context that neither Bahadur nor any of the above-mentioned persons entered the witness-box. However, on receipt of this information, Muhammad Sharif complainant and his brother Ghulam Nabi P. W. Accompanied by Gaman, went to the cotton crop reaching there around 10 p.m. Where they identi--fied the dead body of Akbar Ali lying in a water-course between Killas Nos. 17 and 24 of square No. 10 of Chak No. 184. They found that the deceased had bled from both ears and there were also visible marks of throttling on his neck. Faeces had also come out of the anus. The shirt was on and the loin-cloth lay beneath him on the ground. All this gave clear indications of his subjec--tion to sodomy and death by strangulation. The place where the dead body was found was at a distance of to squares from the dhari of the complainant and one killa away from the path which the deceased used to take to go to the orchard in Chak No. 185. Leaving his brother Ghulam Nabi at the spot, Muhammad Sharif left for Police Station Mamunkanjan. It may be observed in this context that by the the the trial was held, there had been some readjustment of the jurisdictions of Mumunkanjan and Rajana Police Stations and Chak Nos. 259 and 184 were detached from Mamunkanjan and attached to Rajana Police Station. On his way, Muhammad Sharif learnt that the Sub-Inspector was on patrol duty near Muridwala. Accordingly, instead of proceeding to Mamunkanjan he went to Muridwala, reaching there at about midnight, when after about an hour and a half, the S. I. Reached there. There is, however, some discre--pancy on this point as according to Abdul Ghafoor S. I. F. W. 17, it was at 4 a.m. On 30-9-1967 while he was on patrol duty in Muridwala that Muhammad Sharif P. W. Came there and make statement Exh. P. A: before him. Another point of difference between them is that according to Muhammad Sharif, the state--ment was not read out to him nor did he thumb-mark it, He stated that before leaving for the spot, the S. I. Sent a paper to Mamunkanjan on which he had obtained his thumb-impression. He admitted, however, that Exh. P. A. Which was read out to him in Court was the same which he made before the S. I. At Muridwala. On the basis of statement Exh. P. A., the formal F. I. R: Exh. P. A./1 was drawn up at Police Station Mamunkanjan at 6-10 a.m. On 30-9- 1967. Having despatched the statement to the police station for the registration of the case; -Abdul Ghafoor S. I. Repaired to the spot 6/7 miles away from Muridwala reaching there at about 6 a.m. He found the dead body lying in the water course running between Killa Nos. 17/2 and 24 of square No. 10. He prepared inquest report Exh. P. F./1 injury statement Exh. P. F. Of Akbar Ali deceased and handed over the dead body to F. C. Muhammad Sarwar P. W. 8 for being escorted to the mortuary at Kamalia for post-mortem examination. He found under the dead body chadar of green colour Exh. P. 1 and took it into possession vide memo. Exh. P. B. He picked-up blood-stained earth from the spot vide memo. Exh. P. C. And also took into possession four Chapatis wrapped in Kandoori Exh. P. 2. Vide memo: Exh. P. D. He recorded the statements of Muhammad Din, maternal uncle of the deceased, Ghulam Nabi, his paternal uncle and of Abdul Majid, Muhammad Iqbal and Abdul Razzaq P. Ws. Who appeared as Wajtakar witnesses as also that of Wali Muhammad, the recovery
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witness, and Muhammad Murad Lambardar who did not enter the witness-box. The recovery memos. Were attested by Muhammad Sharif complainant Wali Muhammad P. W. 11 and Muhammad Murad Lambardar: F. C. Muhammad Sarwar P. W. 8 .Produced before the S. I. Shirt P. 4 of the deceased which was handed-over to him by the doctor at the the of post-mortem examination. It was taken into possession vide memo. Exh: P. G. Attested by Ghulam Nabi and F. C~ Muhammad Sarwar P. Ws. 3. Since according to the st4tements of Abdul Majid P. W. 14, Muhammad Iqbal P. W. 15, Abdul Razzaq P. W. 16 the deceased was last seen with Nausher appellant on the morning of the 29th of September 1967, the S. I. Started searching for him. The suspicion was further strengthened by the statement of Nur Ahmad P. W., landlord of Muhammad Sharif complainant, who voluntarily appeared before the S. I. On 1-10-1967 in the village school of Chak No. 184/G. B. And stated that the appellant had approached him to seek his good offices and had made an extra---judicial confession before him. It was not till the 2nd of October 1967, that he was produced before the S. I. By Muhammad Murad Lambardar in the village School of Chak No. 184/G. B. He was arrested and on interrogation led to the recovery of his blue colour loin cloth P. 3 from inside a bhoosa stack in Killa No. 6 of square No. 12 of Chak No. 184/G. B. It appeared to be stained with semen and faeces and was taken into possession vide memo. Exh. P. E., attested by Sher Muhammad P. W. 10, Wali Muhammad P. W. 11 and Muhammad Murad Lambardar. The Sub-Inspector got site-plan Exh. P. J. Prepared through Lal Din Patwari P. W. 5 who visited the spot about a month after the occurrence on 30-10-1967 for the purpose. 4. Post-mortem examination of the dead body of Akbar Ali deceased was conducted by Dr. Nawab Din, Medical Officer, Civil Hospital Kamalia, vide his post-mortem examination report Exh. P. A., the doctor found it to be the body of a youngster of 9/10 years of age with mouth half open and the tongue protruding in between the teeth. Face was congested. Sub-conjunctival haemorrhage was present in both eyes. Hands were clinched and nails were cyanosed. Body was clad in white shirt and a green chadar soiled with faecal matter. It may be observed in this context that there appears to be some confusion as to whether. It was the same chadar which according to the S,. I., had already been taken into possession by him from the spot and made into a sealed parcel or it was another chadar having coincidently the same colour and having also been soiled with faecal matter. Bleeding from the mouth, nose and ears was present. The following injuries were found on the body :- (1) Four contusion marks on the left side of the neck close to each other with cresentic abrasion. Size of the contusion was from --" x --" to 1" x --" x --" size of abrasions was 1/3" x 1/6" to --" x 1/6" on front part. (2) Two abrasions on the left side of the neck 1"x --" and 3/4" x 1/3" on its front part. (3) Two abrasions on the right side of the neck front part size 3/4" x 1/4" and 1/2" x 1/4". (4) An abraded area 6" x 5" on the front of right abdomen and right thigh. (5) Scrotum and penis were abraded. (6) An abrasion on the left thigh 1" x --". (7) Seven abrasions on the front of left upper chest. Size from 1/4" x 1/15" to 1/3" x 1/8". (ii) Extravasation of blood was present under injury No. 1 on the neck. Sheath of carotid vessels on the left side of the neck was ruptured and extravasation of blood was present around Larynx and tracheae were congested ; right and left lung were congested. Right side of heart contained blood. Left was empty. Stomach contained four ounces of semi-fluid food. Small intestines contained digested diet. Large intestines con--tained faecal matter. Liver was congested, and spleen was congested. Bladder contained about 1 oz. Urine. (i.e) In the opinion of the doctor, death was caused by asphyxia due to strangulation which was sufficient to cause death in the ordinary course of nature. Death had taken place immediately and
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probable the between death and post-mortem examination was about 32 to 34 hours. It may be observed that in his report Exh. P. H., the doctor made no reference to the deceased having been subjected to sodomy, nor did he notice any abrasion or scratch on the anul or perianul regions of the deceased. He asserted in cross-examination that chaddar P. 1 was the same which he had made over to the police. The doctor handed-over to F. C. Muhammad Sarwar to sealed phials containing anul and perianul swa bs, which were found to be stained with semen, vide Chemical Examiner's report Exh. P. K. The sealed packets, containing chador of the appellant. Chadar of the deceased and earth recovered from the spot were received by the Chemical Examiner on the 6th of October 1967, and vide his report Exh. P. L., the to chadars were found to be stained with semen and faecal matter, while the earth was found to be stained with blood which was determined to be of human origin vide Serologist's report Exh. P. M. 5. At the trial, the prosecution evidence consisted of the evidence of the departure: of the deceased on the morning of 29-9r-1967 from the dhari of his uncle Muhammad Sharif com--plainant for Chak No. 185, the testimony of Abdul Hamid P. W. 14, Muhammad lqbal P. W. 15 and Abdul Razzaq P. W. 16, who last saw the deceased in the company of the appellant, the evidence of so-called extra- judicial confession based on the testi--mony of Nur Muhammad P. W. 4, the evidence of recover: of chadar P. 3 at the instance of the appellant, which was found to be stained with extreta rind semen, and lastly the abscondence of the appellant, who could not be arrested till the 2nd of October 1967. It may be observed in this context that Nur Ahmad the witness of extra-judicial confession, and Wali Muhammad an important witness of recovery of chador P. 3, being Gadhi Baluches like the appellant, deliberately made concessions in favour of the defence as to completely deprive their testimony of reliability and evidentiary value. 6. Both before the Committing Magistrate as well as at the trial, the appellant denied the allegations of having committed the alleged offences, denied the recoveries or his production before the police by Muhammad Murad or having made an extra-judicial confession before Nur Ahmad against both of whom he alleged existence of blood feud of his family. He produced no evidence in defence. 7. In view of the concessions made by Nur Ahmad and Wali Muhammad P. Ws. In favour of the appellant, who were allowed to be examined by the A: P. P. Their statements before the C. M were transferred to the Sessions file under section 288 of the Cr. P. C. The learned trial Judge came to the conclusion that their tribal affiliations with the appellant having weighed with them they had been collusively introduces: some new material at the trial with a view to damage the prosecution case and help out the appellant. Implicit reliance was placed on the testimony of Abdul Majid, Muhammad Iqbal and Abdur Razzaq, the three Wajtakar witnesses; as also on the evidence of recovery of the semen-stained chadar P. 3 at the instance of the appellant which furnished sufficient corroborative evidence to which further support was lent by the medical evidence. Consequently, the offences under sections 37'7 and 302, P. P. C. Were found to have been fully brought home to the appellant. Although his age given by the appellant at the trial was 16/17 years, yet preferring the age stated by him before the C. M. As 19 years, and presumably finding that to be correct, the learned trial Judge awarded him the sentence of death under section 302, P. P. C. 8. Learned counsel for the appellant raised the following contentions before us :- (1) that the investigation did not appear to have been con--ducted by the Sub-Inspector in an honest and straightforward manner. (2) that the three so-called Wajtakar witnesses, namely, Abdul Hamid P. W. 14, Muhammad- Iqbal P. W. 15 and Abdul Razzaq P. W. 16 were wholly unreliable and should not have been believed. (3) that the so-called evidence of extra-judicial confession was simply worthless and should not have been believed.
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(4) that the evidence of recovery of the blood-stained chador was highly doubtful and unconvincing and even otherwise 'could not be used as a corroborative piece of evidence. (5) that the medical evidence did not support the prosecution version particularly on the point of the the of the departure of the deceased and that of his death. (6) that in any event it was not a fit case for confirmation of death sentence. 9. While elaborating the first contention, the learned counsel urged four points before us. (i) In the first instance, our atten--tion was drawn to the discrepancy between the statement of Muhammad Sharif complainant and that of Abdul Ghafoor S. I., on the point of their first meeting at Muridwala where according to Muhammad Sharif he reached at about midnight and waited for the arrival of the S. I. While according to the latter he reached there at 4 a.m. When he (S. 1.) was already present there. I am not inclined to attach much importance to this discrepancy which, cannot be considered very material as the fart however stands established that both of them met at Muridwala where statement Exh. P. A. Was made by the complainant before the S. I. (ii) The next point raised in this regard was the categorical denial of Muhammad Sharif complainant in his examination-in---chief that the statement was read-over to him or that he thumb---marked it. I am not inclined to attach much importance to this either for the simple reason that the complainant added in the same breath that the statement Exh. P. A. Which was read out to him in Court was the. Same which he made before the Police at Muridwala and further that his thumb- impression had been obtained on a paper which was sent by the police to Mamunkanjan Police Station. Earlier denial can, therefore, be safely attributed to a lapse of memory as he appeared in Court more than a year after the occurrence. (i.e) The third point urged in this regard was the omission on the part of the Sub-Inspector to prepare a recovery memo regarding the to sealed phials containing swa bs sent to him by the doctor through F. C. Muhammad Sarwar, as frankly admitted by him in cross-examination. F. C. Muhammad Sarwar P. W. 8 stated having handed-over to sealed phials to the S. I. Along with the kurta of the deceased which were made over to hint by the doctor at the the of the post-mortem examina--tion. The relevant recovery memo, Exh. P. G is confined only to the recovery of shirt P. 4 and makes no mention of the to phials which appear to have been inadvertantly mentioned by the doctor as "one sealed bottle containing swabs". The Chemical Examiner's report Exh. P. K. Refers to the receipt of a packet through F. C. Ata Muhammad P. W. 7 sent by the Medical Officer Kamalia. In his statement F. C. Ata Muhammad P. W. 7 referred to the receipt of three sealed- parcels from Abdul Qadir Muharrir F. C. And their onward transmission to the office of the Chemical Examiner, Lahore after obtaining the necessary docket from the S. P.'s Office, Lahore. I do not consider this omission of preparing a recovery memo regarding the phials to be of much consequence as there is not the slightest indication of any substitu--tion or tampering with them which appear to have remained intact throughout. (iv) The last point urged in this regard was the confusion about the identity of chadar of the deceased Exh. P. 1 which according to the S. I. Had been taken into possession by him from the spot, vide memo. Exh. P. B., soon after his arrival, but on the contrary was handed-over by the doctor as being the same which he had made-over to the police at the the of post--mortem examination. I am not inclined to think that unless the Sub-Inspector had himself considered it necessary to send the chadar P. 1 to the doctor after it was recovered by him from the spot, the same could have reached the doctor. The S. I. Denied having done so when it was specifically suggested to him during cross-examination. Coincidently, the Chadar in which the dead body was wrapped, when it was sent to the doctor, was one of green colour soiled with faecal matter. According to the doctor, faeces was still coming out of the anus. In all probability, after the S. I. Had taken into possession chadar P. 1, the dead body was wrapped in another chadar which also happened to be of green colour. But assuming the S. I. Had sent the same chadar to the doctor wrapping it around the dead body it was not at all necessary for him to advance the the of the recovery memo. Exh. P. B. The fact that the recovery
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memo. Exh. P. G. Was confined only to the shirt of the deceased would further suggest that the green chadar seen by the doctor was another chadar and not the same which was recovered by the S. I. Strangely enough, in his cross-examination, the doctor referred to having made over yet another chadar to the police and when shown chadar Exh. P. 3 purported to have been recovered at the instance of the appellant, stated that it was not the other chadar which he had handed-over to the police. The only plausible explanation of it seems to be that, perhaps, yet another chadar had been placed over the dead body in addition to. The one in which it was wrapped. As a result of the above discussion, I am not convinced that there has been any such forgery or fabrication during the investigation. 10. This brings me to the more important contention regard--ing the reliability of the three Wajtakar witnesses. I have no hesitation in saying that on a careful analysis of the statements of these witnesses, I have not' been impressed by any one of them. It may be observed at the outset that three of them, namely, Abdul Hamid of Chak No. 242/G. B Muhammad Iqbal of Chak No. 187/G. B. And Abdul Razzaq of Chak No. 254/G. B., though residents of different villages, are all Arains by caste having at least tribal affiliations with the complainant and the deceased, if nothing more. I have already referred to similar affiliation between Nur Ahmad and Wali Muhammad P. Ws., who resiled from their statements before the C. M., and Murad Lambardar, who was given up as having been won-over, all Gadhi Baluchs by caste, being the kinsmen of the appellant, presumably having been won-over by him. Normally, such a loose bond as a mere tribal connection, would not be very material except in some peculiar circumstances which are not wanting in the instant case. It cannot be denied that they were all chance witnesses, having coincidently met the deceased and the appellant, if at all they did, on the fateful day. No doubt chance do take place in life, but they, cannot be straightaway believed unless corroborative circumstances are available to support their happening (i) Taking first the case of Abdul Hamid P. W. 14, the most significant point to be noticed in this regard is his frank admission before the Committing Magistrate that the deceased was the son of Mst. Sharifan, who was the sister of his wife Mst. Naziran, which relationship he was at pains to suppress at the trial in view of its effect on the evidentiary value of his testimony. It may be observed in this context that Nur Ahmad P. W. 4, the complainant landlord who appears to have intimately known the complainant's relationship in the area, categorically stated during cross- examination that Abdul Hamid is also the first cousin of Muhammad Sharif complainant, being the son of his real uncle Muhammad Bakhsh. In fact, his denial of this admitted relationship at the trial is, in my view, sufficient to render his testimony completely devoid of all credibility. Once this relationship is admitted, and there appears to be no reason to the contrary, his conduct of having crossed the deceased in the company of Nausher appellant, whose first cousins had murdered the father of Akbar Ali only 4/5 years earlier, without having talked to him particularly finding him in the strange and undesirable company of an enemy, who within their sight took him to a nearby cotton crop, which should normally have aroused grave suspicions in his mind, is simply incomprehensible. This is not all. The specific errand on which he had set of on the fateful morning in the company of his friend Iqbal P. W. Was to purchase a buffalo in Chak No. 185/G. B. The buffalo gave birth to a calf and they spent the night at the bheni of Nur Ahmad P. W. In close proximity to the bheni of Sharif complainant which under the normal expectations would have been a more attractive place for him to spend the night having come all the way from a distance of 12 miles from his village. He not only preferred to stay in the neighbouring bheni of Nur Ahmad, but does not care to contract his sister-in-law Sharifan, the mother of the deceased, or her children. What is more surprising is that he does not learn about the death of Akbar Ali till about the following morn- -ing at 6/7 a.m. He stated that he had shown the receipt of the buffalo to the Thanedar who did not- take it into possession but was belied by the' S. I. In this. The calf and buffalo story thus appears to us nothing but a cock and bull story fabricated merely to justify the presence of this
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procured witnesses. (ii) Much of the criticism of the statement of Abdul Hamid would equally apply to that of Muhammad Iqbal P. W. Nur Ahmad P. W. 4 had stated in cross-examination that one of the sisters of Muhammad Sharif complainant was the wife of Muhammad Iqbal P. W. This relationship, though specifically put to him, was denied by him. In view of my finding that Nur Ahmad P. W. Was deliberately trying to help the defence, it could, perhaps; be argued that the relationship of the P. Ws. Given by him should not be readily believed. The persistence with which the relationship was put to all the P. Ws. Without exception, coupled with the…
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