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Petitioner: MUHAMMAD ASLAM VS Respondent: THE STATEHonorable Justice KHATTAKM. A. Zullah,Nemat Khan
1968 P Cr
1968 P Cr. L J 326
[Lahore]
Before Abdul Hamid and Abdul Ghani Khan Khattak, JJ
MUHAMMAD ASLAM‑Convict‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 458 of 1966, decided on 21st December 1967.
(a) Witness------
---‑Evidence‑Veracity of witness is judged not only from his individual statement but from his testimony taken in conjunction with all other facts brought out on record.
(b) Criminal trial-----
----‑Benefit of doubt‑Law does not provide that doubt should be created in favour of accused‑Accused, however, not to be deprived of its benefit if doubt is there.
(c) Witness------
--‑Credibility ‑ Testimony of witness trying to mislead Court‑May be safely ignored.
M. A. Zullah for Appellant.
Nemat Khan for A.‑G. for the State.
Dates of hearing : 14th and 15th November 1967.
JUDGMENT
KHATTAK, J.‑Muhammad Aslam, son of Ali Akbar, aged 26 years, was tried along with Raja, aged 22 years, son of Mir Haider, and Arsallah, aged 50 years, son of Amirullah, under sections 302/34 and 307/34, P. P. C. for the murder of Nurdad, Head Constable, and for firing at Mehdi Khan, foot constable. The learned Additional Sessions Judge, Rawalpindi, by his order dated 14‑6‑66, convicted Muhammad Aslam under section 302, P. P. C. and sentenced him to death. By the same order the co -accused of the condemned prisoner were acquitted of all the charges. Muhammad Aslam was also acquitted of the charge under section 307, P. P. C. He has appealed against his conviction and sentence. A reference for confirmation of the death sentence is also before us.
2. The State has appealed against the acquittal of Muhammad Aslam, Arsallah and Raja of the charge under section 307, P. P. C. and of Raja and Arsallah under section 302, P. P. C. A Bench of this Court by its order dated 19‑1‑1967 dismissed the State appeal against the acquittal of Arsallah and admitted it against Raja (respondent). This judgment will dispose of both the appeals and the murder reference.
3. The occurrence took place on 11‑1‑66 at 3 p.m. in the area of Police Post Naseer Abad, in front of Kohtnoor Mills, Rawalpindi, on the road side. The F. I. R. was made at 3‑32 p: m. by Mehdi Khan F. C. (P. W. 15) on telephone, recorded by Ntsar Haider Shah, A. S. I. (P. W. 20), at Police Station Cantt., Rawalpindi, at a distance of four miles from the spot. Nisar Haider Shah after recording the report inspected the spot from where the cap Exh. P. 7, belt Exh. P. 8, board Exh. P. 9, of the deceased and one crime empty Exh. P. 18 were taken into posses sion vide memo. Exh. P. G. He recorded the statements of Mehdi Khan, Ali Akhtar Patwari, Muhammad Iqbal and Muhammad Miskin P. Ws. at the spot. The photos Exh. P. D/I and Exh. P. D./2 of the spot were got prepared through Abdul Hakim F. C. (P. W. 7). The site plan was prepared through Malik Barkatullah Draftsman (P. W. 8).
4. At about 4‑30 p.m. the same day Malik Muhammad Waris Khan, S. H. O. (P. W. 21), while he was on gasht, received the information of the incident and took over the investigation. He was handed over by the A. S. I. one sealed parcel containing the articles detailed in para. 3 of the judgment. The injured person had already been removed to the hospital. He then proceeded to the hospital where he found that the injured person had expired. After preparing the injury statement and the inquest report he sent the dead body for post‑mortem examination.
5. On 19‑1‑66 at about 2‑30 a.m. Malik Waris Khan was present along with Ghulam Murtaza, S. I , Saifur Rehman, A. S. I. and some constables in connection with the investigation of this case, when he was informed that Muhammad Aslam appellant and his co‑accused Raja (respondent) would proceed from Dhake Gujran to Bakra Mandi, at about sehri time. It was the month of Ramazan. The I. O. and the aforementioned police personnel reached Tench Bahata from where Amir Khan (P. W. 13) and Muhammad Akram (P. W. 14) also joined them and proceeded to Dhake Qasaban, where they held a Nakabandi. At about 6 a.m. the appellant and Raja (respondent) reached there, and were apprehended by the police party. From the personal search of Muhammad Aslam the revolver Exh. P. 10. with five cartridges Exh. P. 11/1‑5 were recovered, vide memo. Exh. P. H. From the personal search of Raja the 1. O. recovered the pistol Exh. P. 12 and seven cartridges Exh. P. 13/1‑7. The pistol, the revolver and the rounds were sent to the Arms Expert for examination. The appellant and his co‑accused were formally arrested. Arsallah (acquitted) was arrested on 20‑1‑66.
6. Dr. Safdar, performed post‑mortem examination on the dead body of the deceased on 12‑1‑66 at 9 a.m., and found a circular wound on the left side of abdomen with inverted margins. 1/4" in diameter,, 1" below the costal margin on the left side, 4 lateral to the midline, penetrating to the abdominal cavity. It was entry wound. There was no wound of exit. Left side of the pericardium and heart was found empty and right side full of blood. There were injuries to mesentaric vessels and abdominal aorta in its middle‑third. Abdominal cavity was full of blood. Small intestines and its contents perforated at two places and through contained gas and faecal material. Right muscle of the posterior abdominal wall was also injured. Death was due to shock and haemorrhage, as a result of injury to the abdominal aorta. The injury was caused by a firearm.
7. The prosecution case deposed to by Mehdi Khan P. W. was that on 11‑1‑66 at 3 p.m., he was on gasht in front of Kohinoor Mills, where Nurdad H. C. (deceased) in‑charge Police Post Naseer Abad, was also present along with Ali Akhtar Patwari (P. W. 18) at the Bus stand in front of Kohinoor Mills. Ali Akhtar Patwari and the deceased in the company of Mehdi Khan went towards the Guest House of the Mills, where they met Muhammad Iqbal and Muhammad Miskin (P. Ws. 17 and 19 respectively). The deceased Muhammad Miskin and Muhammad Iqbal P. Ws. stood on one side of the road, while Mehdi Khan and Ali Akhtar Patwari went to the opposite side. In the mean while the appellant, Raja respondent and the acquitted accused came from the side of Naseer Abad. Coming near them the appellant and his companions challenged the deceased and Mehdi Khan that they had come there to finish them and from a distance of 3 karams from Nur Dad, Muhammad Aslam appellant fired a shot, which hit Nur Dad in the abdomen and felled him down. On being challenged by Mehdi Khan, he was fired at by Raja, which did not hit him. Mehdi Khan started running towards Kohinoor Mills Colony and the assailants chased him for some distance. Mehdi Khan saved himself by entering the Kohinoor Mills from where he contacted Police Station Cantt., Rawalpindi, on phone for reporting the incident. Mehdi Khan came to the spot of occurrence where Nur Dad deceased was lying senseless. The victim was carried by two F. Cs. in injured condition to the Civil Hospital, Rawalpindi, and Mehdi Khan remained behind.
8. The motive for the offence is that 3/4 months before the occurrence the deceased had registered a case under section 452, P. P. C. against Anwar, brother of Raja respondent and a case under section 392, P. P. C. was registered by the deceased against Muhammad Aslam appellant. They were challaned and the cases against them were pending at the time of occurrence. The defence has also alleged that Muhammad Aslam appellant had instituted a complaint against Nurdad, indicating the existence of animosity between them.
9. At the trial the appellant denied the allegations against him and stated that he was charged on account of suspicion and that Nur Dad had many enemies. He also filed the following documents in defence :‑
(1) Complaint Exh. D. F. by one Raja Muhammad Aslam, against Malik Muhammad Afzal, S. H. O., Police Station 'B' Division, Rawalpindi, Muhammad Nawaz, Ghulam Husain, Muhammad Din constables and Nur Dad deceased under various sections of the P. P. C.
(2) Certified copy of challan form Exh. D. G. in which Muhammad Iqbal P. W. is shown amongst others in the column of witnesses in a gambling case against the appellant Muhammad Aslam along with others.
(3) Certified copy Exh. D. H. of the statement of Muhammad Iqbal (P. W. 4) in a case under sections 307/353/333, P. P. C. The statement reads:‑
On 21‑1‑66 at 11 a.m. I along with Malik Dad joined the police party out of the police post. I, Malik Dad two or three constables beaded by Sbamim Irshad proceeded towards the spot. When we reached in an open place near the Mosque of Misharfan, we saw eight persons engaged in gambling. The accused present in the Court, along with two or three others were present there. On seeing the party they ran away. They threw stones when the police party tried to persuade them. Shamim ran after Gul Zaman, who hit him with the stone breaking his teeth. Shamim caught hold of him and Shah Zaman gave the knife blow on his buttocks. His grip was loosen and all the accused ran away. The constables caught hold of Gul Zaman and Mir Zaman accused.
This statement was recorded on 28‑2‑66 and the accused against whom the statement was made were :‑
(1) Yaqub, son of Abdullah, caste Rajput, resident of house No. Y‑393 Dhok Ratta.
(2) Shahzaman, house No. Y‑393 Dhok Ratta. (Aslam is not accused in this case).
Raja respondent produced one witness in defence, who stated that the respondent came out of the Mills at 3‑2 p.m.
10. The prosecution produced Muhammad Iqbal, Ali Akhtar and Muhammad Miskin in support of Mehdi Khan. Ali Akhtar and Miskin were declared hostile. The prosecution case rests on the ocular account of Mehdi Khan, supported by Muhammad Iqbal and the recoveries from the spot as also from the person of Muhammad Aslam appellant, and his co‑accused Raja respondent. The prosecution version on its important feature finds substantial support from the statement of Muhammad Iqbal. The witnesses are unanimous with regard to the time. of occurrence, the number of assailants and the circumstances under which the criminal transaction was committed. Muhammad Iqbal describes the occurrence very much in the same way as stated by Mehdi Khan.
11. The first point urged by Mr. M. A. Zullah, learned counsel for the appellant, was that the deceased was shot at by some unidentified person. Explaining his argument it was suggested that shortly before the incident there had been an accident and that large number of persons had gathered at the spot of accident, where the deceased was also present and was fired at by some unknown persons. The point raised entirely rests on whether or not the evidence before us is trustworthy. If we believe the ocular account, as the learned trial Court has done, that can be no doubt that the prosecution case has been fully established, but we have been asked to disbelieve the evidence on account of certain lapses appearing in the evidence of Muhammad Iqbal and Mehdi Khan P. Ws. which, in our view, are not material to that extent as to render their depositions to a notice-able doubt. It was suggested by the learned counsel that Mehdi Klan was a comrade of the deceased with whom he remained for seven months as subordinate and that Fazal Dad (P. W. 3), brother of the deceased, is still in the Police Force and that the deceased was inimical to the appellant having been accused in the complainant of the appellant. This exactly is the prosecution case that the relations between the appellant and the deceased were strained, however, the independence of Mehdi Khan P. W. remains unaffected by these suggestions. It is true that the unpleasant job of the police is not creative of friendship with bad characters because of conflict in their interests. With regard to the last criticism, there is no such complaint in the print book it which the witness is an accused person and even if it is true is alone does not discredit him. His statement has to be weighed against its own weight, keeping always in sight that out of sheet love for an accused person a witness would not offer to depose against him. The interest of the witness against an accused person is usually there, however, the motives are different, and the Court has to guard against the falsehood if any in their statements. The witness was posted in the Police Post Naseer Abad. The evidence is that he was on gasht, therefore, his presence at the spot at the material time is probable. There is nothing before us to hold that Mehdi Khan was not on gasht at the material time. The truth of his version is confirmed by the circumstantial evidence. The crime empty connecting Raja's pistol with the crime and the bullet Exh. P. 17 connecting the appellant lend countenance to the direct evidence because only a person witnessing the occurrence alone could say, whose fireshot out of the two armed assailants was effective. Mehdi Khan stated that when he returned from telephone the injured person was carried and he remained at the spot. This fact is reiterated by Muhammad Iqbal in his statement, which shows that Muhammad Iqbal was present at the material time, thus he was in a position to corroborate Mehdi Khan on this particular point. It is true that Muhammad Iqbal is not a resident of the locality and technically he can be termed as a chance witness, but his name was mentioned in the report by Mehdi Khan, who could not have presupposed his presence at the spot before the arrival of Nisar Haider Shah, A. S. I., who recorded the, evidence of Muhammad Iqbal at the spot. The veracity of a witness is judged not only from his individual statement, but from his testimony taken in conjunction with all other facts brought out on the record of the case. The evidence is that the statements of Mehdi Khan and Muhammad Iqbal were taken down at the spot along with the hostile witnesses. It did not take long for Nisar Haider Shah to reach the spot and in the intervening period the attendance of Muhammad Iqbal could not have been procured, if he was not already present. Law does not provide that doubts should be created in favour of accused person rather the rule is that if the same is there the accused should not be deprived from its benefit. We asked a question from the learned counsel during the course of his arguments that if Mehdi Khan was not present at the scene of the crime what possible benefit the prosecution could have by introducing the detour of Mehdi Khan from fear of the assailants. The reply was to explain the delay in reporting the matter. Rationalising the objection it boils down to this that the incident was witnessed by some one who informed the police: Who was that person who could give the ocular account coinciding with the circumstantial evidence which could not have been created? We find no reason to hold that it was not Mehdi Khan but some one else who has not come forward to say so. An unbiased view at the matter suggests that Mehdi Khan, defence less as he was, must have run for life. Normally his conduct is not incompatible with the impulse of self‑preservation. It must have taken him some time, at least a few minutes, to compose himself before reporting the matter on telephone. The argument would have carried weight if we were to disbelieve Mehdi Khan who successfully endeavoured for his life.
12. Coming now to the circumstantial evidence, the crime empty Exh. P. 18, recovered from the spot and the bullet recovered from the dead body suggests that two different weapons were used and two persons at least were concerned in the crime. This circumstance is quite in accord with the direct testimony of Muhammad Iqbal and Mehdi Khan. This brings us to the recovery evidence of the weapons of offence, i e. revolver and pistol from Muhammad Aslam appellant and Raja respondent. The credibility of Muhammad Akram has remained unimpeached in fixing the recovery of these weapons from Muhammad Aslam appellant and Raja respondent. The statement of Muhammad Akram finds support from the evidence of Malik Waris Khan, S. I. Muhammad Akram was definite about Malik Waris Khan alone to have signed the memos. Exh. P. H. and Exh. P. J. He was, however, not definite when questioned about the memos. to have been signed by other thanedars. The note of the Court, "The memos. Exh. P. H. and P. J. are signed by Amir Khan P. W., Akram P. W. and Malik Waris Khan, S. I. only", sets the matter at rest that Amir Khan has tried to distort facts so as to create doubts which are counted by the learned counsel for Raja to be more than a dozen in number. The testimony of a witness who tries to mislead the Court may be safely ignored. The time of the arrest (sehri time, as it was the month of Ramazan) and the manner of the arrest leaves us in no doubt that the weapons were found on Muhammad Aslam and Raja because they were evading arrest and must have carried those arms on their persons.
13. Before we come to the next item of evidence, we would like to refer to the points urged by the learned counsel with regard to the statements of Muhammad Akram and Malik Waris Khan, S. I. It was suggested that the evidence with regard to the recovery of the revolver and pistol from the appellant and his co‑accused does not inspire confidence because Malik Waris Khan, S. I. must have been taking extraordinary interest in the success of the case and Muhammad Akram P. W. was greatly under the influence of police as he accompanied the police party at the odd hours of sehri time and was so eager to co‑operate with the police that he did not even fast on that day. This objection is available against any other person if he had witnessed the recovery. In this context the learned counsel relied on two authorities :‑
(1) Abdus Samad v. The State P L D 1964 S C 167 at p. 171 and
(2) Muhammad Ayub v. Crown P L D 1956 F C 31.
Both the authorities have no bearing on this point. In the former case the evidence of the witness who claimed that the accused in that case had made extra‑judicial confession before him, was rejected for the reasons that it was not believed that the name of that witness might have been disclosed to police by the accused during the interrogation that the extra judicial confession was made at a place different from and away from where the incident had occurred, and that the witness was a police mashir in a number of earlier cases. In the latter authority it was held that the statement of a witness before the police could not be used for corroborating his evidence at the trial.
14. The last item of evidence against the appellant and his co‑accused is the statement of firearm expert who found the crime empty Exh. P. 18 to have been fired from the pistol Exh. P. 12 of Raja respondent. The lead piece Exh. P. 17 was found to have been fired from the revolver Exh. P. 10 recovered from Muhammad Aslam appellant. We do not find ourselves in agreement with the learned counsel to keep out of consideration the evidence of the Arms Expert because to the opinion of the learned counsel the expert is not duly qualified and that he has sided with the police because he was serving in the Police Department. This evidence materially supports the account of Mehdi Khan and Muhammad Iqbal P. Ws. and directly connects the appellant and Raja respondent with the criminal transaction. We are convinced about the complicity in the crime of the appellant and the respondent. Since Raja did not fire with his weapon at the deceased, therefore, we cannot as an abundant caution hold him responsible for the offence of murder under the provision of section 34, P. P. C. However, the evidence against him is consistent and the circumstantial evidence connects him with the attempted murder of Mehdi Khan by firing at him. We, therefore, set aside his acquittal under section 307, P. P. C. and convict him of the same and sentence him to seven years' R. 1.
15. The appeal of Muhammad Aslam is dismissed and his death sentence is confirmed. The appeal against the acquittal of Raja respondent is accepted to the above extent only.
Order accordingly.