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Petitioner: KHITAB KHAN VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Shamim Hussain Qadri, Ataullah Sajjad Title: KHITAB KHAN vs The STATE Case No.: Criminal Appeal No. 386 of 1967 Date of Judgment:1971-02-01 Reported As: 1972 P Cr. L J 380 Result: Appeal allowed
JUDGMENT
JUDGMENT Mushtaq Hussain, J.--This case has come up before me consequent upon a difference between my learned brothers Ataullah Sajjad and Shamim Hussain Kadri, JJ. It was heard by Khitab Khan their Lordships on 26-5- 1970. ^state 2. The facts of the case are that Khitab Khan s/o Khairati Mushtaq was convicted under section 302, P. P. C. by Malik Lehrasap Khan, Hussain, J Additional Sessions Judge, Gujrat at Gujranwala, on 16-5- 1967 and was sentenced to transportation for life for having, on the night between the 4tb and 5th of October 1965, committed the murder of his sister's husband, Moambar Khan at their house in Kacha Quarters Satellite Town, Gujranwala with a dagger Exh. P. 10. 3. The prosecution story is that the accused and the deceased, who were residents of Swat, had been living for about a year in the quarters mentioned above. The accused was a Chowkidar in the Satellite Town. Moambar Khan was an invalid and walked with the help of crutches. The two of them were at logger heads with each other because the deceased frequently demanded repayment of the loan advanced by him to the accused while the latter would always reply that the amount had been spent on the illness of the former. On the fateful evening, the two were quarrelling on the same score. Khushi Muhammad P. W. 13 and Maulvi Allah Rakha P. W. 14, neighbours, interceded. Moamber Khan demanded repayment of Rs. 500 in their presence and said that he was not prepared to let his wife Zarina P. W. as a maid-servant in the house of others because that hurt bis sense of self-respect and the accused was all along insisting that she should be allowed to do so
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because the deceased, being an invalid, was not in a position to earn his living. They hurled abuses at each other, but the interceders separated them and assured them that they will have the matter settled before a day in the presence of the respectables of the locality. Khitab Khan accused said in their presence that on the one hand the invalid earned nothing for himself and on the other he was imputing immorality to his sister Mst. Zarina and that he was so much aggrieved on that account that he would not let the deceased remain alive. The two persons, who had come to intercede, went back to their houses. 4. Next morning, when Khushi Muhammad P. W. 13 came out of his house, he found the rooms of Khitab Khan and Moambar Khan locked. He went into the courtyard and found blood on the floor. He became inquisitive and peeped through their doors. He saw the corpse of Moambar Khan lying in a pool of blood on a cot in the house. Khushi Muhammad immediately repaired to Police Post Satellite Town where his statement was recorded by Bashir Havat A.S.T., P. W. 17 on 5-10-1965. Bashir Hayat forwarded the statement through Ata Muhammad Constable to Police Station City, which is at a distance of half a mile, for registration of the case. This was done at 8-5 a.m. This document is Exh. P F. and on the basis of it the formal F.I.R. was recorded as Exh. P.F/1 on the samedate at Police Station City Gujranwala at 8-15 a.m. by Mirza Saeed Akhtar P. W. 18, S.H.O. of the police station. bLMinafba0Kt,han- He als deposed that Khitab Khan accused v- tnem-reil h.fi emenses for the treatment of Moambar Khan Khitah Khan 5. After recording the statement, he went to the spot anti took into possession the blood-stained earth from the courtyard of the house of the deceased vide Exh. P.D. He removed lock Mushtact Exh. P. 1 and took it into possession vide memo. Exh. P.A. He Hussain. J prepared the injury statement Exh. PN and inquest report Exh. PN/2 and then despatched the dead body to the mortuary. When the post-mortem examination report wasreceived and afterthe usual investigation on 8-10-1965, the accused was produced before the Sub-Inspector by Abdur Rashid P. W., his person was searched and, inter alia, keys Exhs. P. 7 and P. 8 were recovered from his person. These keys matched with lock Exhs. P. 1 and P. 4 which had been earlier broken open and removed from the houses of Khitab Khan and the accused and were taken into possession vide memo. Exh. P.K. On 15-10-65, Khitab Khan accused, while in custody, got the weapon of offence--a dagger--Exh. P. 10, recovered from the ceiling of the room where he lived. The same was found to be blood-stained and having been made into a sealed parcel was despatched by him. The dagger and the clothes of the accused were found to be stained with human blood by the Serologist. On searching through the contents of the suit-case lying in the room, he came across receipt Exh. P.B. purporting to have been executed by the accused in favour of the deceased witnessing the receipt of Rs. 500 as loan to the former. 6. The other accused Fazal Khan was not available as he had absconded and was declared a proclaimed offender. The case was then challaned by the Sub-Inspector. 7. The accused pleaded not guilty to the charge and submitted that he had been falsely involved while he had nothing to do with the matter at all. 8. The police produced 18 witnesses in all to support the prosecution case. P. W. I Dr. Raja Sultan Mahmud, who was Medical Officer of the District Headquarters Hospital), Gujranwala on the fateful day, deposed that he had conducted the post-mortem examination on the dead body of Vloambar Khan at about 4 p.m. He found it to be the body of a thin emaciated young man with emaciated legs He found three incised, 3 punctured and 2 stab wounds on the body of the deceased. The stomach of the deceased contained semi-digested food. The bladder contained three ounces of urine and the right pleura was pierced and was full of blood. In his opinion, injuries 5, 6 and 7, each of which pierced the lung below, were collectively sufficient to cause death in the ordinary course of nature. He was also of the view that all the injuries were ante-mortem. It was
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thus proved that the deceased met a violent death at the hands of more than one assailant, one of whom carried a sharp-edged weapon while the other had a piercing one. 9. The story of the prosecution was narrated by Khushi Muhammad P. W. 13, the author of the F.I.R., and P. W. 14 Ch. Allah Rakha. P. W. 15 K.h. Khurshid Ahmad deposed that he had written receipt Exh. P.B. on 19-2-1964 at the instance of Khitab Khan accused who had affixed his thumb-impression in his [VOL. V have faithfully 384 Pakistan Criminal Law Journal of them Khitab Khan V'. State was revealed that the wife of Moambar Khan deceased used to work in the houses of other people to earn a living. The deceased did not like it while the accused who is her brother insisted that she should do so because that was the only way of sustaining Moambar Khan, the cripple. This was causing annoyance to Moambar Khan. P. W. 13 refers to this incident in his statement but P. W. 14 makes no mention of it whatsoever. In any case even the former did not say that the accused complained of any accusation of adultery by the deceased in respect of the former's sister as mentioned by the learned Sessions Judge in para. 6 of his judgment. 22. This part of the story about the motive sutlers from the same defect--afterthought--and cannot be believed. 23. The recovery of Exh. P.B., the receipt, purported to have been written by Khitab Khan in favour of Moambar Khan is witnessed by P. W. 10 Syed Habib Ullah. He has stated that it was recovered from the suit-case Exh. P.G. by the police. He is a signatory to the recovery memo. His testimony, however, does not inspire any confidence because in the cross-examination he has not given positive answers to the questions put to him. He did not remember if the suit-case from which Exh. P.B. was taken out was locked when the receipt was recovered. He did not know whether the room was locked. He made it clear that in his presence no one had informed the police that Exh. P.B. was lying in the suit-case. 24. This recovery is supposed to have been elfected oil 5- 10-1965. It is interesting to note that P. W. 13 Khushi Muhammad who was present at the spot does not make any mention, whatsoever, of this recovery. In fact, he has categorically stated that "no other item wes seized from that room." P. W. 14 Allah Rakha, has deposed that the police took Exh. P.B. into possession from a suit-case lying in the room of Moambar Khan vide memo. Exh. P.C. This witness admitted in the cross-examination that he had not stated before the police that Exh. P.B. had been recovered in his presence from the suit-case. Mirza Saecd Akhtar P. W. 18 who was then S.H.O. City Police Station, Gujranwala deposed that he took receipt Exh. P.B. into possession vide memo. Exh. P.C. from a suit-case lying in the room of the deceased. Exh. P.B. docs not contain the addresses of the persons who signed it as witnesses. According to Mirza Saeed Akhtar P. W. 18 the statement of Khurshid Ahmad. P. W. 15 the scribe of the receipt, was recorded on 5-10-1965 at 9 a.m. The address of this witness is not given on the receipt and the accused was apprehended on the 8th of October 1965. It passes one's comprehension as to how the Investigation Agency found out the address of Khurshid Ahmad P. W. 15 who was the scribe of the receipt. 25. The marginal witness of the receipt Gulab Khan P. W. 11 is a resident of a different locality, i.e., Naushera Road and is just a labourer. It is, therefore, not intelligible to me as to how the Sub- Inspector was able to trace this particular labourer in the big town of Gujranwala which has a population of more than 500,000 people without any indication having been given on the receipt
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Exh. P.B, as to who he was. The receipt does, itself, there fore, is not beyond suspicion. In this state of the evidence, it is not possible for me to accept the recovery of memo. Exh. P.B. as genuine. 26. There is then have the recovery of a blood-stained loin cloth Exh. P. 2 and a blood-stained shirt Exh. P. 3 from the room of Khitab Khan, both of which were taken into possession vide memo. Exh. P.G. This was witnessed by Khushi Muhammad P.W. 13. 27. These articles were found to be stained with human blood by the Serologist. The other witness Maulvi Allah Rakha P. W. 14 has stated that the police did not go inside the room of Khitab Khan accused in his presence. However, Exh. P.G. the recovery memo, for the clothes bears the signatures of Allah Rakha also. He has not deposed that any clothes were recovered from the room of Khitab Khan in his presence. In fact, he did not, as already stated, enter the room of Khitab Khan at all. The' recovery of the clothes is therefore, very doubtful and no reliance can be placed upon it. 28. The recovery of the locks Exhs. P. 1 and P. 4 from the doors of the deceased and the accused respectively has been disbelieved by the learned Sessions Judge and is of no avail because Allah Rakha, in whose presence they are said to have been recovered, failed to identify them. The statement of Khushi Muhammad P. W. 13 in respect of this lock can hardly be believed as the recovery of the clothes, i.e., the other item witnessed by the same recovery memo, has already been disbelived by me above. 29. Exhs. P. 7 and P. 8 are the keys which are supposed to have been recovered from the person of Khitab Khan and to have matched the locks on the rooms occupied by Khitab Khan and the deceased. Since the recovery of the locks has been disbelieved, it will not be safe to assume that the keys produced in Court matched the locks concerned. There was no reliable evidence before the learned Sessions Judge from which it could be concluded that the keys Exhs. P. 7 and P. 8 related to locks P. 1 and P. 4 particularly when this is also in evidence that the locks had been broken open. This piece of evidence has also, therefore, to be discredited. 30. I am now left with the reeovery of the dagger. The dagger in stained with human blood. It is said to have been recovered at the pointing out of the accused from the ceiling of the residential Kotha of the accused. The recovery was elfected on 15- 10-1965 and the recovery memo, which purports to bear the signatures of Ch. Abdur Rashid and Muhammad Aslam purports to have been written on 15-10-1965. Out of these witnesses Abdur Rashid has appeared as P. W. 16 while Muhammad Aslam was not produced. Abdur Rashid is the witness who is supposed to have produced the accused before the police at 3 p.m. on 8-10-1965. Seven days after his arrest, on 15-10-1965, the accused is supposed to have got the recovery of the dagger effected in the presence of Abdur Rashid. This man lives in an entirely different abadi which is Khokharki, while the occurrence took place in the Satellite Town and it is from the latter locality that the recovery was made. This witness has categorically stated before the committing Magistrate that--"No recovery except the keys and locks took place" in his presence. This solitary witness of the recovery of the dagger thus made a definite improvement on his statement in the trial Court by testifying that he was present at the time of the recovery of the dagger although he had made a complete denial in that respect before the committing Magistrate. The recovery of the dagger is, therefore, not proved by any independent evidence and cannot be used as a piece of incriminating evidence against the accused. 31. The extra-judicial confession is said to have been made by Khitab Khan before Abdur Rashid P. W. 16. Abdur Rashid, according to his own statement, is a stock witness of the police and it will be highly unsafe to base the conviction of the accused on the basis of a statement of a person who himself says, "if some offence is committed in my locality, I am made by the police to join the investigation being a B.D." A stock witness of the police has never been held to be a reliable witness and the extra judicial confession, therefore, goes by the board on this very ground. Moreover, this
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very witness after having stated before the committing Magistrate that no recovery except that of the keys and locks was made by the police in his presence, went on to perjure himself before the trial Court by stating on oath that he was also a witness to the recovery of the dagger. One hears a lot about the duty of the Court to separate the grain from the chaff. There is no material in this case on the basis of which even such an attempt could be made and I for one, am not aware of any occult process by which the same can be done. The condemnation of a citizen as a murderer and the deprivation of liberty can hardly be based on the testimony of untruthful witnesses. 32. The learned Sessions Judge has dealt with the circumstantial evidence under the following heads:-- "(1) Circumstantial evidence which consists of:-- (a) The mutual relations between the accused and the deceased being strained on account of repayment of loan and the deceased having falsely accused the sister of the accused, of adultery; (b) an altercation between the accused and the deceased in the evening preceding the night of occurrence; (c) the abscondence of the accused along with his sister and other family members from the house after the occurrence. (d) absence from duty of the accused on the night of occurrence; (e) keys which were recovered from the person of the accused at the time of arrest correctly worked in the locks removed by the police from the rooms of accused and the deceased; and The pieces of evidence classified under (e) and (/) have already been dealt with by me and have been rejected. The evidence regarding the strained relations between the deceased and the accus ed consist of the testimony of P. 13, P. 14 and P. 16; that of P. 16 has already been rejected. I have further found that Maulvi Allah Rakha P. W. 14 has made material improvements in his statement and has. perjured himself before the trial Court and to accept his testimony on such a matter would amount to accepting something less than flimsy evidence which I am not prepared to do. 33. I am, therefore, left only with the testimony of P. W. 13. This witness did not state that the deceased accused his wife, i.e., sister of Khitab Khan, of adultery. The witness only says that the deceased did not like his wife being asked to work as a maid servant. Even the alleged altercation which took place in the evening was in respect of the demand for reimbursement of the loan advanced by the deceased. The witness and Maulvi Allah Rakha, as he says, advised the accused to wait till the following morning when they would have the matter resolved through the intercession of the respectables of the locality. They seem to have accepted the advice and not even any expression of anger or the use of angry words after that has been attributed to the accused or the deceased in the evidence. There does not seem to be any earthly reason why the accused should have proceeded to kill the deceased when the matter was to be placed before the elders or the locality for being disposed of the next morning, a procedure to which both the parties had agreed. 34. The abscondence of the accused, his sister and other family members from the house is of no help to the prosecution either. There may have been any reason for it and in any case even in the alleged extra-judicial confession there is no explanation as to what happened to the members of his family when he is said to have presented himself to Abdur Rashid P. W. 16 so that he could be produced before the police. 35. As for the absence of the accused from duty on the . night of occurrence, suffice it to say that it can be given no more importance than his alleged abscondence. If he had to commit the murder, he could have done so and returned to duty and thus provided an effective alibi. The prosecution case, however, is that he remained absent throughout the night and did not return to duty. This cuts no ice.
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36. The deceased was a married man. Khitab Khan's sister was his wife. She was living with her husband and was, therefore, the most natural witness of the occurrence. She has not been produced and no reason has been given for her non-production. To my mind, this weighs heavily against the prosecution. Some body may suggest that if she had appeared, she would not have deposed against her brother. This would, of course, have been no reason, in law, for not producing the best evidence regarding the incident. 37. In these circumstances, there is no evidence worth the name which could lead me to the conclusion that the charge had been proved against the appellant. Material pieces of evidence have been disbelieved and in such a state of investigation one has to proceed with extra-caution. I, therefore, find that the prosecution has failed to bring home the guilt to the accused and accepting the appeal set aside the conviction and sentence. The appellant shall be set at liberty if he is not wanted in any other case. Ataullah Sajjad, J.--Khitab Khan appellant was tried by Malik Lehrasap Khan, Additional Sessions Judge, Gujranwala, under section 302, P. P. C. for committing the murder of Moambar Khan, the husband of his sister on the night between 4th and 5th of October 1965, in the kacha quarters of the Satellite Town, Gujranwala. He was convicted under section 302, P. P. C. and was sentenced to transportation for life. He has filed an appeal. Fazal Muhammad who was also named as an accused person along with Khitab Khan is still an absconder. 2. The F.I.R. Exh. P.F./l is based on the statement of Khushi Muhammad P. W. 13 which he made to A.S.I. Bashir Hayat, Incharge of Police Post Satellite Town, Gujranwala, at 8-05 a.m. on 5th of October 1965. 3. The evidence shows that the appellant used to run a vegetable shop but during the days of the occurrence he was working as a Chaukidar in the Satellite Town. Moambar Khan deceased also used to work as a Chaukidar but had become invalid and crippled and was, therefore, not doing any work. He was living with his wife in the house of the appellant. There was, however, bitterness between the appellant and the deceased for two reasons. Moambar Khan had, in his good days, advanced Rs. 500 to the appellant and he insisted on the return of that money. The appellant in reply would tell him that he had spent a lot during his illness and nothing more was payable by him. The deceased also objected to his wife's going out for doing small jobs in the houses of other people. The appellant, however, repelled this objection by Moambar Khan and told him that if his wife did not earn his livelihood by working in the houses of other people, :here was nothing for them to live on. An altercation took place oetween the appellant and the deceased about the return of the money which the deceased claimed from the appellant, on the evening preceding the night of occurrence. At that time, Khushi Muhammad P. W. 13 and Allah Rakha P. W. 14 were present. They are the neighbours of the appellant. Both of them advised the parties to keep quiet and suggested that in the morning they will send some respectables of the locality who would settle the dispute between them. 4. Next morning Khushi Muhammad passed in front of the house of the appellant and found complete silence there. He called the deceased and the appellant but there was no response. He went inside arid saw blood in the compound. He then peeped through the locked door of the room where the deceased lived and found that a dead body was lying there. He informed Maulvi Allah Rakha (P. W. 14) about what he had seen and after asking him to remain present at the spot himself went to the Police Post, Satellite Town for reporting the matter. The statement Exh. P.F. made by Khusbi Muhammad was sent to the Police Station City for registration of the case. 5. Mirza Saeed Akhtar S. H. O. Police Station City, Gnjranwala, proceeded to the spot after the receipt of the statement of Khushi Muhammad. He took blood into possession from the courtyard of the house of the appellant. The rooms of Moambar Khan deceased and that of the appellant were
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locked and there was nobody in the house. The two locks were opened and taken into possession. Moambar Khan was found dead lying in his room. On a search of the suit-case which was lying in the room of the deceased the Sub-Inspector found a receipt Exh. P.B. which purported to have been executed by the appellant in favour of the deceased for payment of Rs. 500. A blood-stained loin cloth Exh. P. 2 and a blood-stained shirt Exh. P. 3 were found in the room of the appellant from underneath a bedding on a charpoy which were taken into possession and sealed into a parcel. The body was sent for post-mortem examination after drawing up necessary document. 6. Raja Sultan Mahmood, Medical Officer of the District Headquarters Hospital, Gujranwala, performed the post-mortem examination on the dead body of the deceased on 5th of Octo ber 1965, at 4 p.m. He found three punctured and three incised wounds and two stab wounds on the dead body. Injuries Nos. 5, 6 and 7 which were on the chest were collectively sufficient to cause death in the ordinary course of nature. The right lung was pierced under injury No. 5. The time between injuries and death was about two hours and the time between death and post-mortem examination was about twenty-four hours. 7. The appellant went to Abdur Rashid (P. W. 16) a Member of the Basic Democracy on 8th of October 1965, and made a confession before him. He was produced before the Investigating Officer on the same day in the Police Post Satellite Town. He had injuries on his person and was sent for medical examination. The doctor found one lacerated wound on the index finger of his left hand and another lacerated wound on the inner side of index finger of the same hand. Two keys were recovered from the appellant at the time of his arrest and they were found to fit in the locks which had been removed from the residential rooms of the appellant and the deceased. 8. On 15th of October 1965, while in custody the appellant led to the recovery of a blood-stained dagger P. 10 from the ceiling of his room. This dagger was taken into possession vide memo. Exit. P.L. The witnesses to this recovery are Abdur Rashid (P. W. 16) and one Muhammad Aslant who was examined before the committing Magistrate. Since he was not available at the trial, his statement before the committing Magistrate was transferred to the Sessions file under section 33 of the Evidence Act. The dagger and the clothes recovered from the room of the appellant were found by the Serologist to have been stained with human blood. 9. There is no eye-witness and the entire evidence…
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