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Petitioner: THANGAI Alias RIFLE Alias ABDUL GHAFOOR VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ali Nawaz Budhani, Syed Sajjad Ali Shah Title: THANGAI Alias RIFLE Alias ABDUL GHAFOOR vs THE STATE Case No.: Criminal Appeal No. 125 and Confirmation Case No. 18 of. 1982. Date of Judgment:1982-12-15 Reported As: 1983 P Cr. L J 1227 Result: Appeal accepted
JUDGMENT
JUDGMENT SAJJAD ALI SHAH J.----This appeal calls in question impugned judgment dated 31-5-1982 of learned 1st Additional Sessions Judge, Khairpur, where--by appellant has been convicted for offence under section 302, P. P. C. And sentenced to death and a fine of Rs. 5,000 in default of payment whereof R. I. For two years. There is also before us reference for confirmation of death sentence under section 374, Cr. P. C. And we propose to dispose of both the appeal and the reference by this single judgment. After hearing the learned counsel for each side on 7-12-1982 by a short order we set aside the conviction and sentence and allowed appeal rejecting the reference for reasons to be recorded later, which follow now. 2. Briefly stated the prosecution case as set up in F. I. R. Is that appellant suspected deceased Haji to be having illicit intimacy with Mst. Morzadi who is wife of the appellant. On 17-10-1979 at about 1- 00 a. m. P. Ws. Mst. Zohra, Mst. Sharma and Illahi Bux who are sister, mother-in-law and brother-in- law of deceased respectively, woke up on cries of Haji and saw in the light of the lamp appellant sitting on the chest of Haji and inflicting injuries with knife on his throat. Witnesses raised cries and attempted to catch the appellant but he made his escape good leaving behind Haji in injured condition. Cries attracted to the spot Noor Muhammad Bugti and others who came to the spot after the departure of the appellant and were apprised of incident by the eye--witnesses. Noor Muhammad arranged for tractor with trolley in which Mst. Zohra carried injured Haji to Police Station Babar Loi at a distance of three miles, where she lodged First Information Report on the same date at 2-30 a. m. Incident took place in the house of deceased situate in Village Noor Muhammad Bugti, Deh No. 9. Taluka Khairpur. It may be mentioned here that injured Haji was then alive but was un--conscious and could not speak, hence report was lodged by his sister Mst. Zohra,
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which was recorded by P. W. 9 Nisar Hussain W. H. C. For offences under section 307/326, P. P. C. After which he sent the injured to the hospital for examination and treatment. On the way to the hospital Haji succumbed to his injuries. On receipt of suc1h information offence in F. I. R. Was converted to section 302, P. P. C. And P. W. 8 A. S. I. Abdul Aziz took over the investigation. He went to the scene of offence, which was pointed out by the complainant and other witnesses. He pre-- pared such Mashirnama. A. S. I. Also recorded statements under section 161, Cr. P. C. Of witnesses and on 18-10-1979 he arrested appellant Thangai alias Abdul Ghafoor alias Rifle from Tubewell No. 10-A and took him in custody. Appellant led the police party to his house and produced blood- stained knife which he took out from the box lying in the house. Knife was put into a sealed parcel. After competing other steps of investigation papers were handed over by this A. S. I. To S. H. O. Mian Khan who presented challan in the Court. 3. Before the trial Court prosecution has examined 10 witnesses in support of its case. Ocular testimony is furnished by P. W. 1 Mst. Zohra complainant, P. W. 2 Mst. Sharma and P. W. 3 Illahi Bux. Additionally these three eye-witnesses have also deposed about dying declaration of Haji which was allegedly made by him to them 'as well as to P. W. Noor Muhammad at the scene of offence after the departure of appellant. P. W. .5 Noor Muhammad is corroborating witness, who came to the spot after the occurrence and was informed about the incident by the eye--witnesses as well as deceased. P. W. 5 Noor Muhammad also acted as Mashir during the investigation of the case and attested and produced Mashirnama of scene of offence Exh. 16. Mashirnama of arrest Exh. 17 and Mashirnama of recovery of blood-stained knife from appellant Exh. 18. P. W. 6 Hazoor Bux had attested the Inquest Report Exh. 21 which was prepared in the mortuary of Civil Hospital, Sukkur. P. W. 7 Ali Akbar is Tapedar who prepared sketch of scene of offence Exh 23 on 15-12-1981 and produced the same in the Court. P. W. 8 Abdul Aziz, P. W. 7 Nasir Hussain and P. W. 10 Mian Khan are Police Officials, who have taken part in the investigation of the case as stated above. P. W. 4 is Dr. Imdad Hussain, who conducted the post-mortem examination on the dead body of Haji on 16-10- 1979 at Civil Hospital, Sukkur. According to the doctor deceased sustained two incised wounds, one on neck between adam's apple and suprasternal notch cutting muscles of neck Wind pipe and second incised wound was on right clavicle. Doctor further opined that death had resulted due to suffocation caused by blockage of wind pipe by blood. The injuries were caused by sharp cutting weapon such as knife. Before the close of the case prosecution also produced report of the Chemical Examiner Exh. 25 according to which knife was found to be stained with human blood. It maybe mentioned here that blood-stained earth was not secured and sent to the chemical Examiner for analysis. 4. Before the trial Court appellant in his statement under section 342, Cr. P. C. Has taken the defence of total denial of prosecution allega--tions and false implication. He further stated that prosecution witnesses are related inter se and are biased against him and have given evidence at the instance of Noor Muhammad, who has framed a false case to involve him. Appellant has further stated that Noor Muhammad had taken away his wife Morzadi forcibly and has removed her to Jacobabad and wants Morzadi to be married to his son. Appellant has also produced affidavit of Mst. Muradan, widow of deceased Haji which is on record as Exh. 32. It is stated in the said affidavit that another wife of deceased Haji namely Mst. Shahzadi is on illicit terms with Jaffar and they have murdered her husband Haji to get rid of him and in order to usurp his property. It is also stated in the affidavit that appellant Thangai is innocent and is falsely implicated. Before the trial Court appellant did not produce any witness in defence. 5. At the very outset it was argued before us by the learned counsel for the appellant that motive set up by prosecution in F. I. R. Was later given up during the trial proceedings in favour of another motive, which too appears to be false. As stated above the motive as given in F. I. R. Is that the appellant suspected that his wife Mst. Morzadi was having illicit relations with deceased Haji and
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on that account appellant caused him knife injuries. Motive is so suited in F. I. R. By complainant Mst. Zohra who is sister of deceased and also is an eye-witness to the incident. In her deposition before the trial Court she has changed the story of motive and stated that Mst. Morzadi is cousin and sali of Haji and was enticed away by appellant Thangai. Thangai compelled Haji to compro-- mise but Haji was adamant and wanted restoration of the girl to him. Consequently appellant Thangai killed Haji for that reason. This is so stated by the complainant in her examination-in-chief before the trial Court. In her cross-examination complainant stated that Mst. Morzadi after the incident was residing with her father Dilmurad, who is husband of Mst. Sharma. Mst. Sharma is mother-in-law of deceased Haji and is an eye-witness in this case. Complainant has further deposed before the trial Court that Mst. Morzadi has a two years old son from appellant Thangai. She denied a suggestion that Malook father of appellant Thangai had given Rs. 10,000 to Dilmurad as compensation for Mst. Morzadi. On motive another eye-witness namely Mst. Sharma, mother-in-law of deceased Haji stated before the trial Court in her examination-in-chief that about a year before the incident appellant Thangai had abducted Kist. Morzadi, who is Bali and cousin of Haji. Mst. Morzadi at the time of abduction was virgin. Haji had complained to the members of "Beradari" against Thangai. It would not be out of place to mention here that Sharma is wife of Dilmurad and Mst. Morzadi is daughter of Dilmurad and step daughter of Mst. Sharma but she does not say so and refers Mst. Morzadi as self and cousin of deceased Haji. Mst. Sharma is mother of Mst. Shahzadi who is wife of deceased Haji. Mst. Shahzadi and Mst. Morzadi are daughters of Dilmurad from different wives and are step-sisters inter se. Before the trial Court in the cross-examination Mst. Sharma has stated that it is incorrect that Mst. Morzadi is married to appellant Thangai and further stated that she has begotten a son aged 2-3 years from Thangai in the result of illicit connections. Mst. Sharma further stated that deceased Haji had not reported the matter to the police about abduction of Mst. Morzadi and husband of this witness also did not complain against Thangai about the kidnapping. Now what-- ever worth this story is that appellant kidnapped Mst. Morzadi produced an illegitimate child from her without marriage, the persons who would be expected in the ordinary course to be more aggrieved is Dilmurad who is father of Mst. Murzadi and this witness Mst. Sharma who is stepmother of Mst. Morzadi then deceased Haji who is stated to be cousin of Mst. Morzadi. It is stated that Mst. Morzadi is Bali of Haji and that also on account of the fact that Haji was married to Mst. Shahzadi, who is daughter of Mst. Sharma and step-sister of Mst. Morzadi Mst. Sharma had denied suggestion in her cross-examination before the trial Court that appellant has been falsely implicated so that Mst. Morzadi be married to son of P. W. Noor Muhammad. On the question of motive the evidence of third eye-witness namely P. W. 3 Illahi Bux is that he is step-son of Mst. Sharma, which means that he is real brother of Mst. Morzadi. As a real brother he is expected to be aggrieved against appellant on account of abduction of his sister Mst. Morzadi by appellant and detaining her without marriage. This witness has not stated in clear words before the trial Court that Mst. Morzadi is his real sister. However in cross-examination this witness has stated that he knew Mst. Morzadi wife of appellant Thangai and further that she was residing with them after the incident as she was restored to them by police. This way he has admitted marriage between appellant and Mst. Morzadi. At the top of deposition this witness has given the name of his father as Dilmurad and admitted that Mst. Sharma is his step-mother. He is taciturn on the question of his own relationship with Mst. Morzadi. In his evidence only at one place he has referred to Mst. Morzadi and that too as wife .Of appellant. It would be pertinent to mention here that complainant Mst. Zuhra has also admitted before the trial Court that after abduction appellant married Mst. Morzadi and has a son from her. On this point evidence of three eye-witnesses is not consistent.
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6. It is quite clear from the evidence mentioned above that story of motive has been changed by the witnesses in the trial Court. In F. I. R. The motive is that appellant suspected his wife Mst. Morzadi to be on illicit terms with deceased. Before the trial Court all the three eye--witnesses have deposed about motive which is entirely different from the one stated in the F. I. R. Even in the trial Court these three eye-witnesses have not given a consistent story about the changed version of motive. P. W. 3 Illahi Bux and complainant Mst. Zuhra have admitted that appellant had married Mst. Morzadi while third eye-witness Mst. Sharma has denied the factum of marriage. The story of motive as testified in the trial Court does not inspire confidence for the reasons enter alla firstly that story of motive given in the Court is discrepant and not satisfactory and secondly that by the action of abduction by appellant, Dilmurad father of Mst. Morzadi, Mst. Sharma step-mother of Mst. Morzadi and lllabi Bux real brother of Mst. Morzadi are the persons who are expected to be more aggrieved than deceased Haji who was a cousin of Mst. Morzadi. It is also in the evidence of P. W. 3 Illahi Bux that Mst. Morzadi after the incident has been restored to his father Dilmurad and has been living with him. In the circumstances we do not feel convinced that on account of the motive testified by eye-witnesses in the trial Court, appellant would be motivated to kill the deceased and that too in such cruel manner as alleged by the prosecution. Learned counsel for the appellant has urged before us that since the motive initially set up by prosecution in F. I. R. Has been given up and another motive has been set up in the trial Court, which too appears to be less realistic and false and since this motive is testified by the eye-witnesses, this would react on the whole prosecution case. 7. The question of motive has been dealt with by the learned trial Judge in a slipshod manner without proper appreciation of evidence on the point and having admitted that motive initially set up in F. I. R. Has been changed to another story has recorded his conclusion in the impugned judgment (page 84 of paper book) in the following words. "Even otherwise the absence or inadequacy or improper description of the motive could not disfigure the other evidence on record." We feel constrained to remark that there is no warrant hi .Law for such observation, which is neither consistent with evidence nor wit legal position set out in several judicial pronouncements as guidelines for evaluation of evidence on the point of motive. The guidelines are that every case is to be considered on its own peculiar facts and circumstances. In some cases it may not be necessary for the prosecution to set up a motive as it may not be possible to dig out motive which lies mysteriously hidden in the mind of the killer. For example we can suppose that a murder takes place in Karachi in broad daylight in a crowded place in which accused fires 2-3 shots from a distance at deceased, who dies instantly. There are eye-witnesses who see the incident and apprehend the accused and he is handed over to the Police or even if he is not apprehended at the spot and runs away, the eye-witnesses give his complete description in initial statements and later on accused is arrested and in the identification parade eye-witnesses correctly pick him out. There are crime empties at the spot and weapon recovered from the accused and the crime empties are sent to the Ballistic Expert, who gives a positive report. Accused and the deceased are strangers in the city and come from up--country and the witnesses do not know about them. Now if the accused remains silent he is the only person who can divulge as to what motivated him to commit the murder. The only other person who could know about the motive was deceased, who is no more in this world. There is no way for prosecution to find out motive as both parties belong to the upcountry, and something must have happened there which must have given reason to the accused to commit murder. In such circumstances evidence available with prosecution is more than sufficient to prove the case against accused without going into the question of motive. There can be other cases also in which prosecution cannot dig out motive but can have sufficient other pieces of evidence to prove the case. For such cases it may not be necessary for the prosecution to
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set up motive if there is other evidence available which is sufficient to warrant conviction. But in a case in which motive is set up in F. I. R. Or in the initial statements of the witnesses then it is the bounden duty of the prosecution to establish" that motive and if the prosecution fails in its duty to establish that motive or the motive which is initially set up is given up and another motive is set up then this failure would certainly react on the prosecution case and particularly the witnesses who have deposed about such motive. Now if second motive is falsified or is not proved then this fact will react on the testimony of the witnesses who have deposed about it. Giving tip of motive initially set up or changing it to some other version subsequently in the Court clearly shows that the witnesses who have set up such motive have lied at the initial stage and if the witnesses have spoken a lie in one part then they are supposed to be prone to speak lies in the other part of their testimony also. For these reasons it lies been held that to such circumstances the Courts are to be on guard and must scrutinise the credentials of the witnesses who by their evidence direct or indirect speak about guilt of accused person on the premises of a false motive. In nut--shell the guiding principles are that keeping in view peculiar facts an circumstances of the case it may not be necessary for the prosecution to set up motive if other pieces of evidence are available to prove the case against the accused but if once motive is initially set up then it is the duty of the prosecution to go ahead and prove it and if it is not done and the motive is given up or the version of the motive is changed in the trial Court then whether the second motive is proved or not the fact will react on the prosecution case and the testimony of the witnesses on the point of motive, which would serve as a challenge to their credibility an veracity and the Courts are required to subject the evidence of sue witnesses to deeper scrutiny with great care and caution. In support o this prosecution reference can be made to the reported cases of Habibullah and others v. State (PLD 1969 SC 127), Hakim Ali and others v. State (1971 SCMR 432) and Nazir Muhammad v. State (PLD 1974 Kar. 274). In the instant case motive initially set up in F. I. R. As stated above was something else which was changed with different version in the Court by the eye-witnesses and even that version because of discrepancies in evidence of witnesses and other inherent infirmities mentioned above appears to be unsatisfactory and not clearly established. 8. Now we come to the evidence of the eye-witnesses. These three eye-witnesses are closely related to the deceased and apart from this fact they are not normal inmates of the house in the sense that they do not reside in that house with the deceased. It is the case of the prosecution that these three eye-witnesses happened to be present in the house at the time of incident as such their explanations are to be considered which they have given to account for their presence at that particular moment. P. W. I Mst. Zuhra is sister of deceased and it is explained by her that she was residing with her brother at the relevant time for the reason that her husband had expired and her step-sons had driven her out from the house and hence she took refuge with her deceased brother. Another eye-witness Mss. Sharma is mother-in-law of deceased and she has not given any explanation as to how she happened to be present in the house of her son in law at the time of incident. She has simply stated before the trial Court that on the night of incident she was sleeping in the house of her son-in-law. Likewise P. W. 3 Illahi Bux another eye-witness who is step-son of Mst. Sharma has simply stated before the trial Court that he was sleeping in the house of deceased at the time of incident. Even if it be assumed that these three witnesses produced by the prosecution were present at the time of incident but then there are so many discrepancies and inconsistencies and inherent improbabilities that we feel inclined to hold that ocular version is not satisfactory and is not free from doubt. May be that these witnesses were present but it is possible that incident has not taken place in the manner as claimed by these witnesses. The first and foremost important factor is that apart from these three eye--witnesses who are supposed to be visitors in the house of the deceased there are two wives of the deceased, whose presence at the spot at the time of incident is not disputed by these eye-witnesses but they have made a
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deliberate attempt to keep them out of the picture. All these three-eye--witnesses while deposing before the trial Court in their examination-in---chief most conspicuously have not mentioned this fact that Mst. Muradan and Mst. Shahzadi, two wives of deceased Haji were also sleeping near the deceased in the courtyard in the house on the night of incident but when cornered during cross- examination these three eye-witnesses per force had to admit presence of the two wives of deceased. So much so that Mst. Zuhra did not mention this fact in F. I. R. And the other two eye-- witnesses did not do so in their 164 statements. Before the trial Court Mst. Zuhra complainant during her cross-examination admitted that deceased Haji had two wives Mst. Shahzadi and Mst. Muradan who were sleeping in the house on that night at a distance of 5 or 6 paces from Haji. She further admitted that both these wives also woke up and saw the incident but Police did not record their statements. Second eye-witness Mst. Sharma stated during her cross-examination before the trial Court that the two wives of the deceased were also sleeping in the house at the time of incident but they woke up after the departure of appellant, and she and other witnesses informed the two wives of the facts of incident. This witness further stated that Police might have recorded their statements. Third eye-witness namely Illahi Bux in the cross-examination of his deposition before the trial Court admitted presence of the two wives of the deceased and stated that they woke up after the escape of appellant and were apprised of the incident by the eye-witnesses. These witnesses further stated specifically that Police did not record statements of the two wives of deceased. In this context it would be pertinent to state here that supporting witness Noor Muhammad who came to the spot on cries after the departure of appellant has deposed in the trial Court that Mst. Muradan and Mst. Shahzadi two wives of the deceased were present at the wardat and their cots were lying shear the cot of deceased at a distance of 1 or 2 paces. He did not inquire) from them about the incident nor did they give the name of the assailant voluntarily but he inquired from the other persons present in the house. Like other eye-witnesses Noor Muhammad made this admission in his cross-examination and did not say a word about the presence of the two wives of deceased in his examination---in-chief. On this point the evidence of Investigating Officer Abdul Aziz is that after he visited the scene of offence, he recorded statements of P. Ws, who happened to be present there and he-did not see Mst. Muradan and Mst. Shahzadi and he could not say whether they were wives of the deceased. I. U. Had also stated that he did not even ascertain if deceased had any wife and if she was sleeping with him nearby. Now these two wives can be the most natural witnesses and their presence at the spot at the time of incident is admitted by all the eye-witnesses and Noor Muhammad. It is surprising why these two witnesses have not been produced by the prosecution and why the witnesses produced by the prosecution made a deliberate attempt to shut them out from the case. The presumption is that had they been examined they would not have supported the prosecution case as it is alleged. 9. Another surprising feature of ocular testimony is that attempt has been made by the eye- witnesses to show that both the wives were sleeping away from deceased while they were sleeping close to the deceased. Mst. Zuhra has stated that wives Mst. Shahzadi and Mst. Muradan were sleep--ing at a distance of 5-6 paces away from Haji. Mst. Sharma mother-in---law of deceased has stated that both wives of deceased were sleeping 10-12 paces away from deceased while she was sleeping at a distance of 5-6 paces from the deceased and Mst. Zuhra was sleeping just near the cot of deceased. Even eye-witness Illahi Bux has claimed that he was sleeping at 5-6 paces from deceased Haji. Now this is very improbable and in the normal course wives are expected to sleep near the husband and guests or visitors in the house even if they are relatives are supposed to sleep at some respectable distance from married spouses. Be that as it may, Mst. Sharma who is mother of Mst. Shahzadi wife of deceased and claims to be sleeping near to her son-in-law than his wives including her daughter further claims that her husband Dilmurad was also sleeping in the house on the night of incident but other eyewit--nesses
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do not admit his presence, nor he has been examined by the…
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