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Petitioner: HASSAN VS Respondent: THE STATE
Court Name: Baghdad-ul-Jadid Judge(s): Muhammad Afzal Cheema, Mushtaq Hussain Munir Title: HASSAN vs THE STATE Case No.:Criminal Appeal No. 499 (LHR)/57(BWP) of 1968 and Murder Reference No.
JUDGMENT
Reported As: 1970 P Cr. L J 598 Result: Appeal dismissed Judgment JUDGMENT MUSHTAQ HUSAIN MUNIR, J.-Hassan (30) was tried for the murder of his sister, Mst. Janati, by the learned Additional Sessions Judge, Bahawalpur at Bahawalnagar. He was convicted under section 302; P. P. C. And awarded sentence of death. He has come up in appeal and the case is also before us under section 374, Cr. P. C. For. The confirmation of death sentence. This judgment shall dispose of the appeal as also the aforesaid reference. 2. The appellant, although a Rajput by caste, is a bangle seller by profession. On the 26th of June 1967, he was returning from village Ramgarh Ghadan ---to village Jalalkhatoon, where he resided with his family, shortly after dopehrwela, in the company of his sisters, Mst. Noor Sain (P. W. 9) and Mst. Janati deceased. The distance between the two villages would be roughly about one and a half miles. When the appellant and the deceased and their sister Mst. Noor Sain were half way from their village and were passing through sarkanda. Plants, the appellant suddenly fired with a pistol at Mst. Janati deceased, who was ahead of him. She was about 18 years of age. The deceased was hit in the back and fell down. Mst. Noor Sain, who is about 16 years of age, asked the appellant, as to why he had fired at the deceased. He told her -to "shut up". Shortly after the receipt of the injury Mst. Janati expired. 3. Muhammad Ali Lambardar (P. W. 8), Muhammad Khan (P. W. 11) and Nizam Din (P. W. 12) of village Jalal Khatoon were on their way to village Ram Garb Ghadan and were at a short distance from the place of occurrence, when they heard the report of gun-fire. They hastened in that direction, and on arrival at the spot, saw Mst. Janati lying dead with a wound on her back and Mst. Noor Sain standing by her side. The appellant was also there. He had a pistol in his hand. Mst. Noor
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Sain was imploring the appellant not to shoot her. They tried to capture the appellant, who after threatening them with serious consequences, if they went near him, made good his escape, carrying his pistol with him. 4. Mst. Noor Sain P. W. After narrating the incident to Muhammad Ali Lambardar gave him the background of the incident. Posted with the facts, lie left for Police Station Mandl Sadiq Ganj to inform the police. When lie reached near Pattan Golluwala, he came across Sub-Inspector Abdul Majid (P. W. 14) and informed him about the occurrence. The latter recorded his statement Exh. P. A., at about 5 p. m., and sent it to the police station for recording formal first information report through the informant. 5. Muhammad Ali P. W. Handed over Exh. P. A. To Assistant Sub-Inspector Muhammad Rafique (P. W. 10), who on the basis of the same registered formal first information report Exh. P. A./1, at 7-30 p. m. The police station is about six miles from the place of occurrence. 6. After recording the statement of Muhammad Ali aforesaid, Sub-Inspector Abdul Majid (P. W. 14) proceeded towards the spot. On arrival there he found the dead body of Mst. Janati lying face downward. He prepared inquest report Exh. P. J. And injury statement Exh. P. K. Thereafter he inspected the place of occurrence and recovered empty cartridge Exh. P. 10 from near the dead body and took it into his possession after sealing it, vide memo. Exh. P. D. He also recovered blood-- stained earth from the spot vide memo. Exh. P. E. After sealing it and a basket containing bangles, vide memo. Exh. P. F. In the presence of Muhammad Khan and Nizam Din P. Ws. 11 and 12 respectively. It was at about 11 p.m., that the dead body was made over to Foot Constable Alam Khan (P. W. 5), who took it to the mortuary for post-mortem examination. He took it to Minchin-- abad and was informed that the doctor incharge was on leave. Therefore, on the following day, he arrived at Bahawalnagar with the dead body at about 12 noon. 7. Doctor Muhammad Siddique, Medical Officer, Distt. Hospital, Bahwalnagar (P. W. 1) performed post-mortem examination on the dead body of Mst. Janati on 27th June 1967, at 4-15 p.m., and found the following injury: - "Nine lacerated wounds of entrance of pellets 4" x 4", chest cavity deep each, spread in an area of 5" x 6" on the middle of the back in between both the scapulae up to the inferior angle of the scapulae. There was no scorching, tatooing or blacken--ing of the skin surrounding the wounds of entrance. Five pellets were recovered from the chest cavity. Nine apertures were found on the back of the shirt, which the deceased was wearing. , Internal examination revealed that walls of the thorax were punctured on the back, 7th, 8th and 9th ribs were fractured on both sides; pleasure punctured at the site of the wondus; larynx and traches, though healthy, were congested ; both lungs were ruptured and congested. Death was due to shock and haemorrhage as a result of nine injuries forming the injury mentioned above, which was sufficient in the ordinary course of nature to cause death. The injury was anti- mortem. The time that elapsed between the injury and death was within about half an hour. The time between the death and the post-mortem was between 24 to 30 hours. Exh. P. H. Is a carbon copy of the post-mortem report. 8. Assistant Sub-Inspector Sajjad Hussain (P. W. 15) of Police Station Mecleod Ganj was on patrol duty in search of proclaimed offenders in the company of Foot Constable, Ghulam Muhammad (P. W. 13) on 29th June 1967, when at about 11 a.m., he received information that a person was heading for river Satluj in suspicious circumstances. He followed him and captured him with the aid of Shameer Khan (P. W. 6) and Bashir Ahmad (P. W. 7) of village Rateka. He was the present appellant. From his personal search, the police officer recovered pistol Exh. P. 12 and five live cartridges Exh. P. 13/1-5. These were sealed into separate parcels and were taken into possession vide memo. Exh. P. G. As the appellant did not possess a licence for keeping the aforesaid arm and ammunition, a case under section 13 of the West Pakistan Arms Ordinance, 1965 was registered:
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9. Assistant Sub-Inspector Sajjad Husain aforesaid, came to know that the appellant was wanted by Mandi Sadiq Ganj Police in connection with a case. Information was sent to that police Station. As a result, Sub-Inspector Abdul Majid (P. W. 14) made necessary entries of his arrest in the zamini' on 30th June 1967. It appears that the appellant was handed over to Mandi Sadiq Ganj Police along with the recovered articles. 10. The Moharrir of Mandi Sadiq Ganj Police Station made over four sealed parcels to Foot Constable Nazar Husain (P. W. 4) one of which contained blood-stained earth recovered from the spot, to be delivered at the office of the Chemical Examiner, Lahore, and three containing a '12 bore pistol; a '12 bore empty and five pellets to be delivered at the office of the Director, Forensic Science Laboratory, on 3rd July 1967. The report of the Serologist Exh. P. O. Is to the effect that the earth received by him was stained with human blood. The report of the Examiner of Fire-arms Exh. P. Q. Is to the following effect: - "The examination of the case has revealed: - (a) No opinion can be expressed as to whether or not one .12 bore crime empty marked as 'C' had been fired From the '12 bore country-made pistol, body signed as it lacks the sufficient identification data; (b) Nothing can be said about the five pellets as to whether or not these were fired from the '12 bore country-made pistol as these could be fired from any smooth bore weapon." 11. At the request of Sub-Inspector Abdul Majid P. W. Made by him vide application Exh. P. M., the Tehsildar (Magistrate 2nd Class) Minchinabad, recorded statements of Mst. Noor Sain, sister of the appellant, Muhammad Hayat, father of the appellant, Muhammad Khan and Nizam Din P. Ws. Under section 164, Cr. P. C. On 3rd July 1967. 12. The appellant was married to his first cousin, Mst. Saina, daughter of Muhammad Din, paternal uncle of the appellant, about five or six years before the occurrence. Muhammad Amir, maternal nephew (sister's son) of the father-- in-law of the appellant was married to one Mst. Inayatan, daughter of Deputy Choorigar. She was abducted by- one Muhammad Din, who subsequently married her. Aforesaid Muhammad Din had a brother by the name of Ghulam Hussain, residing at Lahore. Mst. Janati deceased was betrothed to Ghulam Husain by her father Muhammad Hayat, in spite of the opposition of his brother Muhammad Din, who is also the father-in-law of the appellant. The latter objected to this engagement for the reason that Muhammad Din brother of Ghulam Hussain, had abducted the wife of their nephew Muhammad Amir. The father-in-law of the appellant put pressure on the latter to persuade his father to cancel the engage-- ment of his deceased daughter with Ghulam Husain. At the same time he refused to send his daughter to live with the appellant with a view to force his father to cancel the engagement as his father did not agree, Mst. Janati deceased became a hurdle in the way of the appellant, in leading happy matrimonial life. This is stated to be the motive for the fatal assault upon the person of the deceased her brother, the appellant. 13. When examined' in the Court of the Committing Magistrate, the appellant stated, that he had been involved "on the unfounded suspicions of Mst. Noor Sain". At the trial, while denying the prosecution allegation, the appellant said "Muhammad Ali had planted this case against me". He declined to produce defence. So far as his apprehension on the 29th June 1967 is concerned, he stated, that he was arrested from Rateka fair. He, however, denied the recovery of pistol and cartridges from him: 14. Mst. Noor Sain is the solitary eye-witness of the occurrence, although almost immediately after the deceased had been fired upon, Muhammad Ali, Muhammad Khan and Nizam Din P. Ws. Reached the spot. However, they had not seen the occurrence themselves, although on arrival at the spot, they saw Mst. Noor Sain and the appellant near the dead body. The latter had a pistol in his hand. When attempt was made to capture him, threatening his captors with serious
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consequences he fled away carrying the pistol with him. Mst. Noor Sain, who had fully supported the prosecution case in the Court of the Committing Magistrate, resiled from her statement at the trial, as a result of which, she was declared hostile, cross-examined by the Public Prosecutor and her statement made in the Court of the Committing Magistrate was transferred to the Sessions file under section 288 of the Criminal Procedure Code. The question, that would arise is, as to whether in the aforesaid circumstances, her statement before the Committing Magistrate can be relied upon. Her predicament can be visualised from the unfortunate circumstances in which she was placed. On the one side she had lost her sister and on the other there was danger that she would also loose her brother, the appellant. The way her mind was working at the trial, can be gauged from the following pertinent statement made by her. She deposed: - "We are three sisters and three brothers. Accused Hassan is eldest in the family. My father is very old. My mother is also very old. My brother looks after the whole family. If my brother, Hassan, is convicted our whole family would be ruined." 15. With these observations we shall now analyse the statement of Mst. Noor Sain. Although she resiled, as has been pointed out above, from the statement she had made in the Court of the Committing Magistrate in material particular, she made certain admissions at the trial, which go along way to show that at the trial she ha, tried to suppress the truth, because of relation--ship and natural love with the appellant. She admitted at the trial that slit was present at the time of the occurrence and so was the appellant. She admitted that the deceased was fired upon, but added that the person, who had fired at her was not there. She also admitted, that while she and the appellant were still near the dead body, Muhammad Ali P. W. Came to the spot. She also admitted that, some other persons also arrived there. With regard to the motive for the alleged assault upon the deceased, Mst. Moor Sain deposed at the trial: - "It is correct that Muhammad Din father-in-law of my brother had asked my brother that if the proposal of marriage of Mst. Janati with Ghulam Husain materialized he would not allow his daughter (wife of Hasan accused) to reside with her husband" She further deposed "It is correct that my brother, Hassan, had asked my father not to marry Mst. Janati to Ghulam Husain to which my father did not agree and said that he had already promised and that he could not go back upon his word." She also deposed: - "It is correct that my brother, Hassan, had repeatedly asked my father not to go ahead with the proposal of marriage of Mst. Janati, but my father refused." 16. Mst. Noor Sain was confronted with the statement which she had made in the Court of the Committing Magistrate in cross-examination by the Additional Public Prosecutor. She denied, that she had stated in the Court of the Committing Magistrate that Hasan appellant fired at Mst. Janati from behind with pistol. She also denied that she had stated that when she enquired from the appellant as to why he had fired at Mst Janati, he asked her to shut up. She denied that she had stated that Muhammad Khan, Muhammad Ali and Nizam Din P. Ws. Had arrived at the spot. She denied that she had deposed that she knew the aforesaid persons. She denied further, that she had deposed that the aforementioned witnesses had asked the appellant, as to why he had fired at the deceased, whereupon he replied, that he did not agree with his father in the proposal of marriage of Mst Janati and as last solution had killed her. She did not admit, that she had deposed that when the aforementioned witnesses tried to apprehend the appellant, he defied them and told them, that if they went near him, they would be dealt with in the same manner as Mst. Janati. She also did not admit, that she had deposed that thereafter her brother, Hasan, ran way towards Ramgarh Ghadan. She further denied that she had deposed that her sister died instantaneously and did not utter a word. All these passages mentioned above, with which the witness was
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confronted find place in the statement made by her in the Court of the Committing Magistrate and it, as indicated above, has been transferred to the Sessions file under section 288, Cr. P. C. 17. Placing reliance on Ranjah v. State (PLD 1962 B J 12 ) and Wahid Bux v. State (PLD 1963 Kar. 83), learned counsel for the appellant vehemently contended, that the statement of Mst. Noor Sain, transferred to the Sessions tile, should not be relied upon, because the appellant had no opportunity to cross-examine her in the Court of the Committing Magistrate and it had not been corroborated by any other evidence. In the first case, a Division Bench of this Court refused to rely upon the statements transferred under section 288, Cr. P. C. To the Sessions file for the reason, that the accused could not engage a counsel in the Court of the Committing Magistrate "due to short notice" and was thus hampered in cross-- examining the witnesses. Before he was charge- sheeted, he engaged a counsel, but the Committing Magistrate declined to recall them for cross- examination, although the request was not very belated. Such is not the position in the case before us. There is no allegation, that the appellant was not given a chance to cross-examine Mst: Noor Sain, although he was undefended. There was nothing to stop him to cross-examine Mst. Noor Sain nor is there any allegation, that he subsequently engaged a counsel Committing Magistrate refused to resume on her for the purpose of cross-examination. Mr. Justice Sajjad Ahmad Jan (Now Judge of the Supreme Court) was one of the members of the Bench, which decided the aforementioned case. In an earlier case, however, reported as Abdul Karim v. State (PLD 1960 B J 1) while sitting with Shabir Ahmad, J., Sajjad Ahmad Jan, J. Was of the view that the statement of a witness made by him before the Committing Magistrate could be used as evidence in the case under section 288, Cr. P. C., if the trial Court came to the conclusion that the statement made before the Committing Magistrate, which had been departed from at the trial was true. It was also observed that the position in law was that the convic--tion could be based on the statement made before the Committing Magistrate though it might be contradicted by the statement of the same witness before the trial Judge. Assessing the value of such a statement it was observed: - "Ordinarily a person who had made contradictory statements about a fact should not be believed, but the Court has not to act mechanically in a matter like this. If the Court comes to the conclusion that the previous statement has been departed from on account of influence that have worked in favour of the accused, the Court can accept the previous statement and base a conviction on it. The rule that ordinarily the evidence of a witness who has contradicted himself should not be held by a Court of law to be sufficient evidence of the guilt of an accused person beyond all doubt the benefit of which must go to the accused is not universally applicable because the weight attachable to the statement of a witness must in each case depend on the circumstances of that case, and laying down any hard and fast rule is neither possible nor wise." When we apply the aforementioned dictum to the facts of this case, we find that it has been demonstrated by Mst. Noor Sam herself at the trial, that she had changed her statement under influence. She had been carried away into contradicting her previous statement by the sentiment that if her brother, Hassan, was convicted their whole family would be ruined. 18. In the second case relied upon by the learned counsel for the appellant, the position was that almost all the material witness for the prosecution had gone back on the statements made by them in the Court of the Committing Magistrate. Therefore, Ilahi Bakhsh Khamisani, J. Observed: - "If one were to discard their entire evidence recorded in the Sessions Court and base the conviction totally upon the statements recorded in the committal Court it will be setting out a bad precedent. In such cases some sort of corroboration would, in my opinion, be necessary for the purpose of deciding as to whether the statements the witnesses made in the committal Court were true or whether the statements they were making in the Sessions Court were false. In the event of their being admittedly no evidence in corroboration it will be unsafe to base the conviction solely on the statements brought on record under section 288, Cr. P. C."
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When we consider this case in the light of the circumstances of the case before us, we find that the statement of Mst. Noor Sain finds corroboration from the testimony of witnesses, whose' presence has not been denied by her even at the trial. One of them is Muhammad Ali P. W., with regard to whom, it was admitted by her that he arrived almost immediately, after the deceased had been hit with gun-fire. He has fully supported the prosecution case. Therefore, if any corroboration in law was necessary, the same has been made available by the testimony of Muhammad Ali, Muhammad Khan and Nizam Din P. W. The aforementioned cases relied upon by the learned counsel for the appellant, therefore, are distinguishable and have no application to the facts of the case before us. 19. Before parting with this aspect of the case, we may observe that the object of section 288, Cr. P. C. Is to confer power upon the trial Judge to treat the evidence given by a witness before the Committing Magistrate as substantive evidence, if he is satisfied that the evidence given before the Committing Magistrate is true and that given before him is false. This section has been enacted primarily to reduce the danger of witnesses being tampered with between the commitment and the trial. It is an exception to the general rule, that all evidence must be direct. It vests discretion in the trial Judge to treat the evidence of the witnesses recorded under Chapter XVIII as substantive evidence in the case though none of the conditions laid down in section 33 of the Evidence Act are present, Therefore, we have to see, whether what was stated by Mst. Noor Sain before the Committing Magistrate was true or false. She is real sister of the appellant and, as already pointed out, is keen to save him from gallows. She deposed: - "If my brother Hasan is convicted the whole family should be ruined." Furthermore her statement gets corroboration, if any corroboration is necessary, to a large extent from the testimony of the witnesses, who arrived at the scene of offence almost at the their when it took place. Even at the trial Mst. Noor Sain has admitted the presence of one of them, namely, Muhammad Ali. The latter deposed that when he arrived at the spot after hearing the report of gun-fire he found Mst. Janati lying dead and bleeding from the injury which she had received on the back ands Mst. Noor Sain P. W. Standing near her. The appellant H a also there with a pistol in his hand. 20. In State v. Abdul Majid (PLD 1959 Kar.184) a Division Bench of this Court in which the leading judgment was recorded by Muhammad Yaqub Ali, J. (Now Judge of the Supreme Court) it was observed in paragraph 8 on page 188: - "As to the value to be attached to a statement transferred under section 288 of the Code of Criminal Procedure, reference may be made to Imtiaz Rabbani v. State (PLD 1956 Lah. 657). All the material prosecution witnesses had retracted from their earlier statements in that case but the accused was convicted under section 302 of the Pakistan Penal Code and sentenced to death on the basis of the statements transferred under section 288 of the Code of Criminal Procedure. On appeal by the convict and a reference under section 374 of the Code of Criminal Procedure, a Division Bench of this Court, to which one of us was party, upheld the conviction and the sentence of death was confirmed. A further appeal was taken to the Supreme Court on the same ground as has found favour with the learned trial Judge in this case and dismissed. Hasan Khati is an independent witness and the respondent had nothing material to urge against him. He and Faqir Muhammad brother of the respondent, no doubt, had a dispute over a passage three to four years prior to the occurrence in this case, but this had no effect on the relations between the witness and the respondent as they continued to be on dining terms: It is further obvious that if Hasan Khati had a motive to falsely implicate anyone in the case, he would have named Faqir Muhammad and -not the respondent, or in any case both of them. We, therefore, conclude that there was no enmity between the respondent and Hasan Khati which has been relied upon by the learned trial Judge to discredit his testimony. During the trial he appears to have been won over to introduce the element
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of the culprits face being muffled so as to create a doubt about the identity of the respondent. In his statement before the police recorded on the spot on the day of occurrence, in his statement recorded by the Magistrate under section 164 of the Code of Criminal Procedure and in the statement in the commitment proceedings, there is no mention, or even a remote suggestion that the face of the culprit was muffled and the witness had guessed him to be the respondent because he ran in the direction of his house. The statements under section 164 and in the commitment proceedings are before us and this omission in the statement recorded under section 161 of the Code or Criminal Procedure may reasonably be inferred as the Defence did not contradict Hasan Khati on this point with reference to that statement. To the contrary, in re- examination he admitted that in none of his earlier statements he had made any mention of the face of the accused being muffled. We, therefore, take the statement of Hasan Khati transferred under section 288 of the Code of Criminal Procedure as truthful and in coming to the conclusion we are amply fortified by the circumstances in which the deceased was murdered." 21. In Imt1az Rabbani v. State referred to in Abdul Majid's case it was observed:--"It will depend upon the facts of each case as to how far consistent with the rule of caution a Court can act on thev…
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