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Petitioner: MALANG VS Respondent: THE STATEHonorable Justice NAZEER AHMED MAHMOODMessrs A. K. Brohi and Ghulam Ali Memon,ALe-Raza
1968 P Cr
1968 P Cr. L J 1170
[Karachi]
Before Nazeer Ahmad Mahmood and 1llahi Bakhsh Khamisani, JJ
MALANG-Appellant
Versus
THE STATE-Respondent
Criminal Appeal No. 183 and Confirmation Case No. 44 of 1967, decided on 15th December 1967.
Penal Code (XLV of 1860), S. 302-Murder-Sole eye witness belonging to faction opposed to that of accused Alleged eye-witness account not corroborated by any other evidence-Case against accused cannot be held established merely on strength of statement of such witness--Accused acquitted.
Messrs A. K. Brohi and Ghulam Ali Memon for Appellant.
ALe-Raza for the State.
Date of haring: 15th December 1967.
JUDGMENT
NAZEER AHMED MAHMOOD J.--This is an appeal by Malang accused who was tried under section 302/34, P. P. C, and section 13-D, West Pakistan Arms Act for the murder of Piral deceased in furtherance of a common intention with his co- accused Momin, Jurio and Phalai on the 22nd of February 1965 in Deh Bakapur, Taluka Jacobabad and for being in possession of a gun without licence and was sentenced to death for his offence under section 302/34, P. P. C. and to 6 months' R. I. for his offence under section 13-D, of the Arms Act by Mr. F. E. Ansari, Sessions Judge, Jacobabad by his order dated 1-6-1967. His three co-accused could not be tried apparently because they had become absconders. The case has also been referred to us under section 374, Cr. P. C., for confirmation of the appellant's sentence of death. This judgment will dispose of the Appeal as also the reference.
2. Briefly stated, the prosecution case is that on 22-2-1965 early in the morning Piral deceased accompanied by his father Gamtar Khan (P. W. 6) and his father's sister's husband Qasim went to their land which is about 7 or 8 furlongs away from their village abadi. When they reached their land where peas had been grown, Piral started plucking peas at a distance of 8 or 10 paces from where Gamtar and Qasim were standing. At that time Ahmad, the cousin of Gamtar P. W., was standing in his own field about 50 paces from where Gamtar was standing. Suddenly, Gamtar heard four gun reports proceeding from the western side. Gamtar P. W. looked in that direction and saw four men all armed with guns. They were Malang appellant and his co -accused Jurio, Phalai and Momin. As a result of the firing Piral fell down where he was picking the peas. Accused shouted that they had taken revenge of their brother Bibrak. Bibrak was the brother of Malang appellant who had been murdered 5 or 6 years before the occurrence and Yousuf, Jumo and Fauj Ali were challaned in that murder case. After firing their guns the assailants went inside the canal and disappeared. Gamtar P. W., went up to where Piral had fallen and finding him dead and leaving behind Qaim and Ahmad near the dead body Gamtar proceeded to his house. After informing his brother Suhbat about the occurrence he proceeded to Sadar Police Station, Jacobabad, about 6 miles distant from the place of the occurrence and lodged the F. I. R. Exh. 14 there at 9-30 a.m. which was recorded by Haq Nawaz, Sub-Inspector of Police (P. W. 8). After recording the report the Sub-Inspector proceeded to the place of the occurrence and found the dead body still lying in the land of Gamtar in a pool of blood. He collected blood-stained earth from the spot and sealed it into a parcel vide mashirnama Exh. 11. He also collected two empty cartridges and one live cartridge from the place of the occurrence as also three wads. He also recovered two other empty cartridges from near the spot and sent the dead body for its post-mortem examination with Ali Sher F. C. (P. W. 1) to Jacobabad Civil Hospital where Dr. M. A. Jabbar, A. M. O., Shikarpur performed the post-mortem examination on the dead body from 3-15 p.m. to 4-00 p.m. and found the following on the dead body
(1) Seven lacerated type of penetrating wounds each about 1/4' in diameter 4 on the right chest, 2 on the left chest, one In front of the left shoulder joint and one in front and lower part of the left arm. These were the wounds of entrance.
(2) One lacerated type of penetrating wound 1/3' in diameter on the back and lower part of the left axilla. This was the wound of exit.
On internal examination the doctor found both the pleura and lungs pierced. Heart was also pierced and stomach was empty. The doctor expressed the opinion that death was due to shock and haemorrhage as a result of firearm injuries. The doctor removed two S. G. pellets from the body and handed them over to the Police. The doctor expressed the opinion that as there was no charring or blackening on any of the wounds, the shots were fired from a distance of above 6 feet. He also stated that the wound of exit was on back side.
3. Haq Nawaz, S. 1. (P. W. 6) was transferred from the Thana on 10-3-1965 and only Malang appellant was arrested by Lal Bakhsh, S. H. O., Sadar Police Station (P. W. 3) on 4-2-1966 from his house in Deh. Janedaro Jagir. Allegedly the appellant had been absconder during the period. It would seem that proceedings under section 512, Cr. P. C. were started against the appellant as also his co-accused and statements of some of the witnesses including Gamtar and Haji Suhbat Khan were recorded.
4. The appellant pleaded not guilty and denied all the allegations of the prosecution. When asked why the P. Ws. had deposed against him; he replied: "they are interested inter se and had enmity with us". But at the trial when asked the same question; his reply was: "It is Nahak". The appellant produced evidence in defence.
5. We are not satisfied that a case beyond all reasonable doubt has been established against the appellant. Only one eye witness namely Gamtar, the father of Piral has been produced by the prosecution as eye-witness of the occurrence although two other persons namely Qaim, the sister's husband of Gamtar P. W., and Ahmad, the cousin of Gamtar had, according to Gamtar P. W., also witnessed the occurrence. The absence front the witness-box of these two persons, allegedly the eye-witnesses of the occurrence who were close relations of Gamtar P. W., east a shadow of doubt on the truthfulness of the version of Gamtar P. W. It appears to us that Gamtar P. W., had to describe himself as eye-witness of the occurrence in the witness- box because in the first instance, he was responsible for lodging the F. I. R., and he perforce had to adhere to the version that he had given in the F. I. R. It is highly impossible that if as is described by Gamtar P. W., at the trial and also in the F. I. R., his close relations Qaim and Ahmad had witnessed the occurrence, they would refrain from supporting him in the witness-box. Nor can any other statement made by Gamtar on the same lines as he made his statement at the trial be said to advance the case of prosecution because, as already observed by us, Gamtar was constrained to adhere to the version that he had initially given in the F. I. R. The prosecution has brought on the record the statement of Gamtar P. W., made by him in proceedings under section 512, Cr. P. C., against the appellant and hips co-accused when they were reported as absconders. By way of corroboration of the statement of Gamtar P. W., Haji Suhbat Khan was also produced as P. W. 7 but his statement was only to the effect that after the alleged occurrence Gamtar had come to him in the village at about 8 or 9 a.m., and had told him, that Malang Jurio, Momin and Phalai had murdered Piral by gun-fires and that he had also stated that he had left Qaim at the scene of the crime. It is significant that in his statement made before the Committing Magistrate Suhbat had stated that Gamtar had told him that Malang and Momin had guns while the others had hatchets. The statement of this P. W., made in proceedings under section 512, Cr. P. C., was also brought on the record. We do think that the statement of Haji Suhbat Khan to the effect that Gamtar had informed him at 8 or 9 a.m. that Malang, Jurio, Phalai and Momin had murdered Piral by gun fires, can be regarded as advancing the prosecution case when we find that Qaim and Ahmad who were described by Gamtar as the eye-witnesses of the occurrence have refused to come forward to support Gamtar's eye-witness account of the occurrence.
6. Furthermore, it is doubtful if the statements of Gamtar and Haji Suhbat Khan made in proceedings under section 512, Cr. P. C., can be admitted in evidence. Section 512, Cr. P. C. makes admissible in evidence statements made under section 512, Cr. P. C. "If the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the ------would be unreasonable". But assuming that the statement----------------------------------- mtar P. We can be used by way of corroboration of his statement made the trial under section 157 of the Evidence Act, as already remarked, this statement of his giving the eye-witness account of the occurrence was apparently made because he had started with that version in his statement made by way of F. I. R. This means that the prosecution case against Malang appellant rests on the solitary witness, Gamtar, P. W. That, empty cart ridges were recovered from the spot would no doubt show that the allegation that the deceased was killed by gun-shot injuries is correct, but would not necessarily mean in this case that eye witness account of the occurrence given by Gamtar P. W., was true. Nor can for the reasons given, alone the medical evidence be used in this case in corroboration of the eye-witness account of the occurrence given by Gamtar P. W. The recovery of the cartridges from the spot as also the medical evidence would only establish that the deceased had been killed by gun-shot injuries.
7. Learned counsel for the appellant has contended that there was no justification for starting proceedings under section 512, Cr. P. C., against Malang appellant and, therefore, apparently no reason why the statements of Gamtar and Haji Suhbat Khan P. Ws. should be used by way of corroboration of their statements made at the trial. He referred, in this connection, to the statement of Gamtar P. W., made in the course of his cross-examination to the effect that Malang appellant lived in Baluchistan and sometimes in Janidero Jagir and that be has his house in Baluchistan. Learned counsel contended that there was nothing on the record to show that any attempt was made by the police to contact Malang appellant in Baluchistan if he was not found in Janidero Jagir. That net such search for Malang appel lant was made in Baluchistan is evident from the statement of Lal Bakhsh S. I. (P. W. 3) who denied that Malang appellant lived in Baluchistan. This denial on the part of the police officer is not trustworthy in the context of the admission of Gamtar that the appellant lived in Baluchistan and had his house there. But regardless of whether proceedings under section 512, Cr. P. C., were justified or not, we do no think that in the present case it is prudent to hold that the case against the appellant is established merely on the strength of the statement of Gamtar P. W., to the effect that he had seen Malang appellant along with his co-accused' shooting Piral deceased to death. It transpires from the, cross- examination of Gamtar P. W. that he belonged to the faction opposed to that of Malang appellant. He stated that Sarda Nek Muhammad was the good man of his party and the appellant was the man of Haji Dildar Khan and that there was some dispute between Nek Muhammad and Dildar over land and that they had cases against each other and their men. It is possible that on account of this factional feeling Gamtar P. W., on learning of the death of Piral on account of gun-shot injuries, had on mere suspicion made the report implicating Malang appellant and his co-accused for the killing of Piral deceased. The motive of assault alleged by Gamtar also does not impress us as convincing. He stated that the appellant and his co-accused had killed Piral on account of the murder of Bibrak, their brother. From his own statement it appears that it was Yusuf, Jumo and Fauj Ali who were challaned for the murder of Bibrak. He does not mention that his son was ever suspected by the accused party for that murder or was implicated in that case as one of the assailants of Bibrak. It does not, therefore, stand to reason that for the murder of Bibrak Malang appellant would join any body for the murder of Piral.
8. At all events in the circumstances of the case, the prosecution case cannot be said to be established beyond all reasonable doubts against the appellant. Learned counsel for the State also frankly admitted that in the circumstances of the case, the Judgment of the learned Sessions Judge could not be supported by him. We, therefore, set aside the appellant's conviction and sentence and acquit him. His death sentence is not confirmed,
Appeal accepted.