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Petitioner: MUHAMMAD SHARIF--Convict VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Shamim Hussain Qadri, Ataullah Sajjad Title: MUHAMMAD SHARIF--Convict vs THE STATE Case No.: Criminal Appeal No, 648/Murder Reference No, 231 of 1969 Date of Judgment:1971-03-05 Reported As: PLD 1971 Lahore 708 Result: Appeal dismissed, Sentence reduced
JUDGMENT
JUDGMENT SHAMEEM HUSSAIN KADRI, J.--Appellant Muhammad Shard was condemned to death by the Additional Sessions Judge, Multan, by his order dated 5th July 1969 for causing the death of one Khushi Muhammad. His appeal against his conviction and sentence and reference for confirmation of his death sentence under section 374, Cr. P. C. are before us. Both of them are being disposed of by this order. 2. On 30th July 1968 at about 3 p.m. Khushi Muhammad deceased was confronted by the appellant in Bazar Choori Sarai. Muhammad Sharif gave a lalkara and thrust the knife, which he was holding in his hand, into the neck of the deceased. On receiving the injury the deceased turned towards West from where he was coming. The appellant is alleged to have followed him a few steps. The deceased fell a few yards away from the place of occurrence and died. The appellant made good his escape. The matter was reported by Abdul Hamid (P. W. 11) at Police Station Kup situate at a distance of two furlongs from the place of occurrence at 3-30 p.m. The same day F. I. R. S. H. (Exh. P. B.) was recorded by Moharrir Head Constable Abdul Hamid (P. W. 3). 3. Dr. M. S. Faridi (P. W. 1) Medical Superintendent, Civil Hospital, Multan, performed autopsy on the dead body of Khushi Muhammad. He found a stab wound on the right side of his neck and two abrasions, one under the left shoulder and the other on the left side of the face. The knife injury according to the doctor was sufficient in the ordinary course of nature to cause death. According to him death took place immediately after the knife blow. 4. Muhammad Shah Feroze (P. W. 8), who at the relevant time was posted as Additional S. H. 0. Police Station Kup, took along with him Muhammad Sharif (P. W. 6) and Sultan (P. W. 7) and
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proceeded to Dera Adda in order to apprehend the appellant since he had the information that the appellant was likely to leave for Muzaffargarh. He checked the lorries bound for Muzaffargarh from 4 to 7 p.m. and thereafter all of them proceeded to Aziz Hotel at 9 or 10 p.m. They found the appellant in a lorry which was proceeding towards Muzaffargarh. The lorry was stopped in front of the Hotel. The appellant was arrested and his shirt (Exh. P. 7) and chaddar (Exh. P. 8), which were found to be blood-stained, were taken into possession vide memo. Exh. P. E. 5. Maqbool Elahi Cheema (P. W. 16), Station House Officer ,Police Station Kup recovered knife (Exh. P. 1) at the instance of the appellant on 2nd August 1968. The knife was taken into possession vide memo. Exh. P. D. which was attested by Muhammad Akram (P. W. 9) and Abdul Hamid (P. W. 11). It is alleged that the appellant told the Investigating Officer that he had thrown the knife in Pul Watta Moria. The accused led to this place and recovery was made. All the articles including the earth, taken into possession from the spot, were sent to the Chemical Examiner and the Serologist. The report of the Chemical Examiner (Exh. P. K.) disclosed that there was blood on them while the serologist opined that all the Articles were besmeared with human blood. This report is Exh. P. L. 6. Learned Additional Sessions Judge has held that both the witnesses of recovery of clothes of the appellant, namely, Muhammad Sharif (P. W. 8) and Sultan (P. W. 7) were stock witnesses of the police. He disbelieved them and Muhammad Shah Feroze (P. W. 8) about their pursuit for the search of the appellant in the lorries. The learned Additional Sessions Judge also disbelieved the recovery of knife (Exh. P 1). Muhammad Akram (P. W. 9) contradicted Maqbool Elahi Cheema Investigatin Officer, who stated that he took both the witnesses from the place of occurrence while Muhammad Akram stated that he was passing in front of the Police Station Kup when the appellant and S. I. came out of the police station. He was asked by Abdul Aziz to accompany them to effect recovery of knife. Abdul Hamid (P. W. 11) completely denied to have attested the recovery. He said that the knife was shown to him in the police station by the Investigating Officer and he was asked to identify the same as the weapon of offence used by the appellant. 7. At the trial Mst. Hamidan step-mother of the appellant (P. W. 10) and Abdul Ghafoor (P. W. 15) his father, deposed about the motive for the crime. Mst. Hamidan stated that she married Abdul Ghafoor after the death of his first wife Mst. Sheedan. Khushi Muhammad deceased was her brother. They used to live at Burewala. About 8/9 years ago after her marriage with Abdul Ghafoor his deceased brother also came to Multan and took up residence with her. Her husband was running a fuel wood stall. Khushi Muhammad invested some money and joined the business of her husband. According to her the appellant used to threaten her and her brother that if he was not given money he will finish them. In her view the appellant was a loafer who occasionally lived away from the house. A day prior to the occurrence at about Maghrib prayer time the appellant demanded money from her brother who refused to fulfil his demand. The appellant again told him that he will finish him. Abdul Ghafoor (P. W. 15) father of the appellant gave little different version. He stated that his son squandered away the money which he gave to him for setting up in the first place a meat shop and then a milk shop. The appellant according to him used to demand five or ten rupees per day from Khushi Muhammad deceased. Occasionally he obliged him but sometimes he refused. He deposed that at about 3 p.m. on the day of occurrence Khushi Muhammad left for the shop of halvai in order to recover some money. He was following him in order to go to his house. When he reached near a khokha in the Bazar he saw his son following the deceased and within his sight he gave a knife blow in the neck of the deceased. He raised alarm to catch the appellant, but he could not do so being an old person. According to him he caught the deceased when he had fallen. He was at a distance of 10/15 karams. He, however, did not profess to be an eye-witness in his statement (Exh. DE) before the police. The other ocular testimony consists of Abdul Hamid (P. W. 11) a passerby, Karim Nawaz (P. W. 12), Amir Bakhsh (P. W. 13) and Hassan Bakhsh (P. W. 14), who are shopkeepers in the vicinity. The conviction is solely based on the ocular
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evidence. The recoveries have been disbelieved by the learned Additional Sessions Judge. Learned counsel for the State has not canvassed for genuineness of the recoveries before this Court. 8. At the trial Abdul Ghafoor father of the appellant stated that he had not turned out the appellant from his house, but he stated before the committing Magistrate that he had turned him out from the house. He also did not state before the C. M. about the deceased having left for halvai shop and he followed him. His stand about the occurrence before the C. M. was that the appellant was sitting at the shop of ice seller, he jumped from the shop nad thrust the knife into the neck of the deceased who fell down. He also stated before the C. M. that the deceased was followed by the appellant who after receiving the injury turned towards him. But when he was confronted at the trial with his statement before the C. M. it was not so recorded. He admitted that his deceased brother-in-law was once challaned in gambling but denied the suggestion that the injury was given to him by some gamblers. His evidence does not inspire any confidence for it was most unnatural for the appellant to have asked the deceased to help him with money. The natural thing would have been that the appellant, if at all he was in reed of money, would have asked his father and not the brother of his step-mother. If he was eye-witness of the occurrence there was no reason why he should not have lodged the F. I. R. The old man seems to be under the influence of his wife and does not like the appellant. Perhaps he wanted to get rid of him who might have been pestering him for some money or as the appellant alleged he used to accuse his step-mother of immorality. Abdul Hamid (P. W. 11) stated that he was coming to the shop of one Abdul Aziz in Bazar Choori Sarai. He had not yet reached the shop when he heard appellant giving lalkara to Khushi Muhammad. He saw him following the deceased having open knife in his hand. Khushi Muhammad tried to run away towards west but in the meantime the appellant over took him and gave him knife blow. According to him the tragedy was witnessed by Amir Bakhsh, Hassan Bakhsh, an 1 Karim Nawaz who are utensil sellers in the Bazar. For the first time at the trial he introduced Abdul Ghafoor to have appeared at the scene and given support to the deceased after he received injury. Name of Abdul Ghafoor was not mentioned in the F. I. R. as an eye-witness by him. According to him he left for Delhi Gate where Murad Head Constable told him that he was wanted by the police at the place of occurrence. He came there and found the police present. His statement was recorded at the place of occurrence. But according to the prosecution his statement was recorded by the M. H. C. Abdul Hamid (P. W. 3) at police station Kup. Obviously in his statement he did not support the prosecution on this point. He deposed at the trial that he was in front of the shop of Abdul Aziz when he saw the occurrence. In the plan prepared by Agha Muhammad Yousaf Khan, he is shown to have seen the occurrence from point No, 3 in front of Gali Saeed Khanwali. Abdul Aziz's shop has not been shown in the plan. He has not been produced at the trial. He stated that Abdul Aziz had closed the shop because murder had taken place in front of his shop. According to the plan the deceased was injured at point No, 1 In the Bazar in front of the corner of shop of Karim Nawaz adjacent to the shop of Muhammad Alam. He earlier stated that he saw the appellant giving the deceased injury on his neck but in cross-examination he deposed that the injury was given on the head. He saw the accused in the lane when he gave him lalkara. This lane can obviously be Gali Saeed Khanwali which is shown in the plan. Shop of Abdul Aziz has intentionally not been shown in the plan and the scene of occurrence has purposely been shifted to, in front of the shop of Karim Bakhsh in the main Bazar Choori Sarai. He stated that he came to the place of occurrence for the second time after hour and a half and found Sharif appellant present in the dcompany of police. He also admitted that the police had summoned Karim Nawaz, Hassan and Amir Bakhsh at that time and he came to know the names of these witnesses then. It is, therefore, quite obvious that he did not know the witnesses and it was at the instance of police that he mentioned their names in the so-called F. I. R. which no doubt is proved to have b xn recorded at the spot. The witness denied the suggestion that he had a dispute with the appellant 5/6 days before the occurrence regarding
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ice which he used to supply, but he admitted to have known him for the last two years and not his father Abdul Ghafoor. It is strange that he did not mention any person, who gave support to the deceased, in the F. I. R., but he introduced Abdul Ghafoor who gave support to Khushi Muhammad, after he received the injury, at the trial. In my humble view this passerby was made to become the complainant in the case by the police upon whom bitter sense prevailed at the trial and he did not support the recovery of the knife. Abdul Ghafoor was intentionally avoided to be the complainant in the case because the police was apprehensive lest he may abstain from supporting the prosecution case at the trial against his son. It was perhaps the anxiety of the Investigating Officer to have an eye-witness as a complainant in the case rather than Abdul Ghafoor whose presence at the spot did not look like natural in the vicinity where the occurrence is alleged to have taken place, shops of Karim Nawaz (P. W. 12) and Amir Bakhsh (P. W. 13) are situated at the end of Gall Saeed Khanwali shown in the map. Both of them are utensil sellers. They claim to have seen the occurrence, which according to them took place at point No, 1, in Bazar Choori Sarai. Karim Nawaz stated that Abdul Ghafoor also came to the spot and caught hold of the deceased when he was going to fall on the ground. He stated that thereafter Abdul Hamid left for the police station to lodge the report. On the other hand Abdul Hamid has definitely stated that his statement was recorded at the spot. There are other material discrepancies in his statement. He did not state before the police that the appellant had an open knife in his hand but at the trial he improved and stated that the appellant was ho'ding open knife in his hand. According to him both the deceased and accused were coming from Chowk Bazar where the shop of Abdul Ghafoor is situate. He claimed that the knife blow was given in front of his shop while Abdul Hamid stated that the murder took place in front of the shop of Abdul Aziz and the accused was coming from the lane, obviously Gali Saeed Khanwali as there is no other lane nearby. Abdul Hamid saw him at Point No, 3. The deceased after receiving the injury turned back and ran towards the shop of Abdul Ghafoor. The direction from which the accused was coming, as given by Abdul Hamid, is quite different. He also stated before the C. M. that after receiving the injury the deceased got up and ran after the accused up to a distance of 25 paces and fell down there. The accused then turned towards east and entered into some lane, but at the trial he denied to have stated so before the Committing Magistrate. This witness did not mention the name of Abdul Ghafoor either to the police or to the C. M. but introduced him for the first time at the trial. He admitted that the place of occurrence is a busy business centre and there was lot of rush in the Bazar. His conduct is most unnatural. He stated that he did not move from the place where he was sitting on the wooden plank although the murder had taken place in front of his shop. In his statement before the police and the C. M. he did not mention the names of Amir Bakhsh and Hassan Bakhsh as eye-witnesses. He joined the investigation of his own accord. He denied the suggestion that he was giving statement because he was friend of Abdul Ghafoor. I am afraid reliance cannot be placed on the testimony of this witness because of his conduct, the improvements made by him at the trial in his statement and the discrepancies therein. Amir Bakhsh (P. W. 13) stated that towards west of his shop he saw the accused chasing the deceased with an open knife in his hand. When they reached near the turning of the lane Sharif gave lalkara and inflicted injury on his neck within his view. Khushi Muhammad turned towards West in the Bazar and fell on the ground while Sharif appellant ran towards East and escaped into lane. According to the plan this witness was at Point No, 4 in the Bazar on the side of the shop opening in Bazar Choori Sarai. Obviously the place wherefrom the deceased and the appellant were coming seems to be Gali Saeed Khanwali for if the deceased was coming from the Western side in the main Bazar Choori Sarai he would not have turned to the left and reached point No, 1 in the plan where he got the injury. His statement, therefore, contradicts the statement of the other witnesses including Hassan Bakhsh (P. W. 14) who is said to have stated that both the appellant and the deceased passed in front of his shop and he saw the appellant giving knife blow
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to the deceased at Point No, 1 in the main Bazar. Karim Nawaz has not mentioned the names of both these witnesses Amir Bakhsh and Hassan Bakhsh in either of his statements before the police or the C. M. Abdul Hamid has definitely stated that police called these persons and told him their names. Abdul Hamid and Karim Nawaz are contradicted by Amir Bakhsh and Hassan Bakhsh in regard to the direction from which the deceased and the appellant were coming. Amir Bakhsh and Hassan Baldish- further introduced catching of the neck of the deceased by the appellant in his left hand and giving him injury with his right hand. This was not mentioned by Karim Nawaz and Abdul Hamid. Abdul Ghafoor was also introduced by Hassan Bakhsh for the first time at the trial. His conduct is also unnatural. He remained sitting as a silent spectator at his shop and denied Muhammad Shard's presence with the police when they arrived at the spot an hour and a half after the occurrence while Abdul Hamid has definitely so stated. Hassan Bakhsh also claims to have good relations with Abdul Ghafoor. 9. In my view the conviction of the appellant cannot be based on tainted testimony of the above witnesses. It is true that the occurrence took place in a very busy business centre of Multan City, but it is hard to presume that these untensil sellers were sitting idle and were watching some drama in the street. Usually these shopkeepers remain deeply busy with their customers. The F. I. R. was recorded at the spot. Abdul Aziz in front of whose shop the occurrence is alleged to have taken place according to the maker of the so-called F. I. R., has intentionally been withheld in order to get benefit of the testimony of these eye-witnesses. Whether these persons are deposing on account of the pressure of the police or on account of their relationship with Abdul Ghafoor is altogether immaterial. The arrest of the appellant from the bus by Muhammad Shah Feroze is also a white lie. He was admittedly at the spot when Abdul Hamid's statement was recorded along with the witnesses. The police has gone all hog to manufacture false evidence in this case in order to implicate the accused. The prosecution has miserably failed to prove the case against the appellant. 10. I would, therefore, give benefit of doubt to the appellant and order his acquittal. He will be released forthwith if he is not wanted in any other case. In view of the above finding the reference for confirmation of death is rejected. MUHAMMAD AFZAL ZULLAH, J.-1 have had the advantage of reading the judgment proposed to be delivered by my learned brother Shameem Hussain Kadri, J., with profoundest respect I have not been able to agree with the conclusion reached by his Lordship. 2. In this case, the prosecution relied on the following pieces of evidence:-- (i)Motive proved by Mst. Hamidan (P. W. 10), the step-mother, and Abdul Ghafoor (P. W. 15), the father of the appellant. (ii)Ocular account given by five eye-witnesses, namely, Abdul Hamid (P. W. 11), Karim Nawaz (P. W. 12), Amir Bakhsh (P. W. 13), Hassan Bakhsh (P. W. 14) and aforesaid Abdul Ghafoor (P. W. 15). (iii)The arrest of the appellant and recovery of blood, stained clothes from his person, on the day of occurrence, deposed to by Muhammad Sharif (P. W. 6), Sultan (P. W. 7) and Muhammad Shah Feroze, S. I. (P. W. 8). (iv)Recovery of the crime weapon, a blood-stained knife, at the instance of the appellant, two days after his arrest; deposed to by Abdul Hamid (P. W. 11) and Maqbool Elahi, S. I. (P. W. 16). 3. The circumstance of arrest of the appellant and recovery of blood-stained clothes from his person, as alleged by the prosecution, does appear to be natural; but the criticism of the learned trial Judge in respect of the evidence produced by the prosecution in this behalf is based on some reasons. Moreover, the learned Assistant Advocate-General has also not relied upon this piece of evidence. Therefore, I would prefer to keep it out of consideration. With regard to the recovery of the knife at the instance of the appellant, the criticism by the learned trial Judge has the support of sound reasons. The learned Assistant Advocate-General has not sought support from this
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recovery. Moreover, the main witness in respect of this recovery being Abdul Hamid who, it appears, is not reliable, it is not safe to use it against the appellant. As such I consider it proper to keep this circumstance also out of consideration. 4. The learned trial Judge has implicitly relied on the statements of three eye-witnesses, namely Karim Nawaz, Amir Bakhsh and Hassan Bakhsh. He did take into consideration the main points of criticism against the statement of Abdul Hamid P. W. and discarded the F. I. R. said to have been lodged by this witness, on the ground that it was recorded after some preliminary investigation at the spot. However, he believed Abdul Hamid P. W. in so far as the ocular account given by him is concerned; mainly because the witness appeared to the learned trial Judge to be independent as he made certain concessions to the defence and thus was considered to be out of the influence of the police. Abdul Hamid P. W. has been relied upon in support of the prosecution case. With regard to Abdul Ghafoor, the learned trial Judge disbelieved his claim that he saw the occurrence; but accepted his statement in so far as it related to the motive. He has also relied on the statement of Mst. Hamidan in this behalf. Thus the conviction is based on the eye-witness account given by Abdul Hamid, Karim Nawaz, and Hassan Bakhsh P. W. and the motive supported by Mst. Hamidan and Abdul Ghafoor P. Ws. 5. Before dealing with the statements of the eye-witnesses, it needs to be remarked that the time of occurrence being 3 p.m. and the place of occurrence, where patches and trail of blood have been found, being a busy bazar, it is not at all possible to imagine that the culprit was not seen by anybody. It is also an admitted position that the shop jointly run by the father of the appellant and the deceased is in the same bazar. It is not at all the case of any party that the appellant was an unknown person in that bazar. Therefore, it has to be further assumed that if the culprit would have been somebody else than the appellant, nobody, except his enemies, would have named him as culprit soon after the occurrence and particularly on the arrival of the police at the scene. But for a very weak argument that Hassan Bakhsh P. W. has good relations with the father of the appellant, it has not even been suggested that any one of the eye-witnesses other than Abdul Ghafoor had either any connection with Abdul Ghafoor or anyagainst the ppellant, so as to falsely involve him in a murder case. The police station is hardly two furlongs from the place of occurrence and it is in evidence that the police reached the spot almost immediately after the occurrence. Admittedly, the name of the appellant only was disclosed to the police as the culprit in the case. The claim that to the F. I. R. was registered at the instance of Abdul Hamid at the police station has not been believed; but the fact remains that it was recorded by the police at the spot soon after the occurrence. The time when the report is shown to have been recorded in the register of F. I. Rs, is 3-30 p.m. It means that the name of the appellant was disclosed as the culprit within about half an hour of the occurrence, at the spot. It is also in evidence that the three eye-witnesses, who have shops around the spot, were summoned by and were with, the police before the registration of the case. It is not possible to imagine that without anybody from these persons having disclosed the name of the appellant to the police, the police officer just, merely on the asking of the father of the appellant, treated him as the culprit. 6. Coming to the statements made by the eye-witnesses, it has to be straightaway remarked that it is not safe to rely on the statement of Abdul Hamid P. W. I am in respectful agreement with the assessm ent of his statement made by my learned brother. Mr. Kamal Mustafa Bokhari, the learned Assistant Advocate-General, contended that this witness tried to help the appellant by making certain concessions. The nature of the admissions made by the witness does create an impression that he might have tried to help the appellant; but for the reasons given by my learned brother and for the additional reason that the father of the appellant having fully supported the prosecution case and the appellant himself having remained in custody, there is no reason to suppose that this
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witness might have been won over. Therefore, I prefer to conclude that he had actually not seen the occurrence and had obliged the police by having offered to become the first informant. He does not belong to the locality nor is he a shopkeeper of the bazar. In all probability, he is a false witness; that is why so many infirmities…
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