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Petitioner: THE STATE VS Respondent: BAHADUR And Another
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title: THE STATE vs BAHADUR And Another Case No.: Criminal Appeal No. 29 and Murder Reference No. 7 of 1986 Date of Judgment:1986-12-17 Reported As: 1987 P Cr. L J 1689 Result: Appeal partly accepted
JUDGMENT
JUDGMENT AMIR-UL-MULK MENGAL, J.--Ali Sher aged about 30 years, Bahadur aged about 60 years and Ghaus Bakhsh aged about 32 years were tried by the Additional Sessions Judge, Usta Muhammad for an offence under section 302/34, P.P.C. The learned trial Judge convicted all the above- mentioned three accused persons and passed the following sentences:- . (1) Ali Sher was sentenced to death as well as a fine of Rs.5,000 in default to undergo 6 months' rigorous imprisonment. (2) Bahadur was sentenced to life imprisonment and fine of Rs.5,000 in default 6 months' rigorous imprisonment. (3) Ghaus Bakhsh was sentenced to life imprisonment and a fine of Rs.5,000 in default 6 months' rigorous imprisonment. The accused persons have filed this Criminal Appeal against their conviction and sentences. The reference under section 374, Cr.P.C., made by the Additional Sessions Judge, Usta Muhammad No. 7 of 1986 for confirmation of death sentence awarded to Ali Sher appellant is also before us. We, therefore, propose to dispose of both the appeals as well as reference by this common judgment. The facts of the case are that on 10-8-1982 at about 5-30 p.m. An incident took place in the fields near village Faqirabad where deceased Abdul Latif was killed allegedly by the accused persons while he was busy in transplanting paddy seedlings. The F.I.R. No. 66 of 1982 (Exh. P.A.) was registered at 8-30 p.m. In the Police Station Usta Muhammad which was lodged by Murid Khan the father of the deceased Abdul Latif. Another important aspect is that the accused Ali Sher absconded after alleged commission of the offence and was arrested at Turbat on 15- 6- 1984. He was handed over to Usta Muhammad police
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on 28- 6- 1984 Remaining two accused persons namely Bahadur and Ghaus Bakhsh were arrested on 31-8-1982. The S.H.O., Inspector Jalal Din (P.W.5) went to the place of incident. He examined the dead body and prepared Inquest Report (Exh. P.5). Inventory of the site inspection (Exh. 5-C) was also prepared and site plan (Exh. P.G.) was prepared as well. The S.H.O. Secured paddy seedlings from the place of incident vide inventory (Exh. P.G.). The S.H.O. Also took into possession an empty lying on the place of incident vide Exh. P.B. The dead body was sent to Civil Hospital Jhatpat for post- mortem examination, Nothing was recovered on the search of the house of Bahadur. However, on 14-9-1982 in a similar search Article `I' (hatchet) was recovered from the house of accused Ghaus Bakhsh which was taken into possession vide Exh. P.E. The paddy seedlings were sent to the Chemical Examiner and report of the Chemical Examiner is Exh. P.H. The motive for the crime was described as one Wali Muhammad brother of Ali Sher accused was allegedly missing and the accused suspected him to have been killed by the informant Murid Khan and others. The charge was framed against Bahadur and Ghaus Bakhsh alias Ghausoo on 1-2-1983 and regarding Ali Sher it was framed on 17-11-1984 since he was allegedly absconding. The learned Additional Sessions Judge, Jhatpat vide judgment., dated 30-9-1986 being convinced from the testimony of P.W. Murid Khan and Mir Hassan which according to him was corroborated by medical evidence, convicted all the three accused persons and passed the sentence mentioned hereinabove. Dr. Illahi Bakhsh, Medical Officer was examined who described the following injuries on the body of the deceased:-- (1) Gunshot wound on the left side back of chest 1/4" in diameter, inverted irregular margins and blackening around the wound at the level of 5th and 6th ribs wound of entrance. (2) Gunshot wound on the front of chest on the left side 1/2" in diameter averted margins (wound of exit), On internal examination the following injuries were noted:-- On examination of skull all the bones of skull menanges blood vessels and brain matter were normal. On examination of chest there was fracture of 5th and 6th ribs on the left side on the back of chest. The pleura was torn. The left lung in the middle lobe region was ruptured and collapsed. Blood clot formation was found on left lung. Both ventricles of the heart were ruptured and there was fracture of 6th and 8th ribs in interior left side of chest. On examination of abdomen all the abdominal viscries were normal and other bone joints were healthy. The death in Doctor's opinion was due to injury to vital organs i.e. Heart and lung, shock and death. The weapon used was fire-arm. The probability of time between injury and death was sudden and probability of time between death and post-mortem examination was about 12 to 14 hours. The prosecution produced following evidence:-- (1) Medical evidence. (2) Ocular evidence. (3) Circumstantial evidence. (4) Motive. (5) Absconsion of the accused Ali Sher. At the trial, the prosecution examined eight witnesses namely P.W.1 Murid Khan, P.W. 2 Mir Hassan who were eye-witnesses of the incident. P.W. 3 Ghulam Hyder who was Mashir to the recovery of the hatchet, P.W. 4, Muhammad Iqbal Head Constable No. 419 was Mashir to the Angosha of the
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deceased Abdul Latif, P.W. 5 Inspector Jalal Din who conducted the investigation of the case, P.W. 6, Ghulam Nabi, Mashir to the recovery of shotgun from the house of accused Ali Sher, P.W.7 Ghaus Bakhsh is also inventory witness of shotgun from the house of accused Ali Sher and P.W 8 Dr. Illahi Bakhsh. All the three accused persons pleaded not guilty and recorded their statement on oath separately. None of the accused persons produced any defence witnesses. We have heard Mr. Tariq Mahmood, the learned counsel for the appellant and Mr. Muhammad Nawaz Ahmed, learned counsel appearing for state at considerable length. For better appreciation, we would like to take the case of accused Ali Sher first and would dilate upon the points raised by the learned counsel for the appellant. Although the learned counsel for the appellant addressed us firstly on the point of motive, but it would be expedient and profitable to dilate upon firstly on the points raised in respect of F.I.R. Regarding F.I.R. The learned counsel submitted as follows:-- (1) The F.I.R. Was registered after conducting of preliminary investigations by the S.H.O. (2) The F.I.R. Was not lodged on the day of incident but on the next day i.e. 11-8-1982. (3) The F.I.R. Was registered at the place of occurrence, and not in police station. (4) The contents of the F.I.R. To the extent of motive were false. The F.I.R. No. 66 of 1982 is Exh. P.A. The column No. I of the F.I.R. Indicates the date and the time as 10- 8-1982 at 8-30 p.m. However, unfortunately in column No. 2 the time for proceeding to the place of occurrence from the police station is torn and thus, not legible. The learned counsel submitted that from the contents of the F.I.R. It is clearly indicated that the occurrence took place a day prior to filing of the F.I.R. He invited our attention to the contents of the F.I.R. Where the First Information stated, "yesterday in the evening time, I my son Abdul Latif, Abdul Qadir and Mir Hassan alias Mir Burrira were busy in transplantation at about 5-30 p.m. That Ali Sher son of Ali Bakhsh in his hand a single barrel gun, who is my maternal-nephew, Bahadur son of Ghaus Bakhsh in his hand a single barrel gun and Ghaus Bakhsh son of Khuda Bakhsh in his hand a hatchet, all by caste Burrira, residents of Deb Noor Pur near Faqirabad came and Ali Sher fired at my son:" It was argued by the learned counsel for the appellant that there can be no two interpretation of the above averments except that alleged incident took place a day prior to the lodging of the said report. He, therefore, argued that the F.I.R. Was not lodged on the same day. Another limb of the argument of the learned counsel in this respect was that on the back page of the Exh. P.A. Where the copies are mentioned to have been despatched indicate the date as 12-8-1982. This according to the counsel further corroborates his contention that F.I.R. Was not lodged on 10-8-1982 but on 11- 8-1982. He, therefore, vehemently urged that no importance should be attached to the F.I.R. Since it has been lodged not on the day of occurrence. It is indicated in F.I.R. That the distance between the place of occurrence and that of police station Usta Muhammad is 10 miles as is indicated in second column at S.No. 4 of the F.I.R. We are unable to subscribe to this view of the learned counsel for the appellant, for the reasons firstly that the learned counsel has lost sight of the fact that in the last but one sentence of the F.I.R. The informant stated that on account of this suspicion Ali Sher, Bahadur and Ghaus Bakhsh have killed my son Abdul Latif today. In fact it has come on record that the First Informant along with his deceased son and others had been transplanting paddy seedlings for three days. It seems that translation of F.I.R. From Urdu to English has created doubt. The Urdu version is reproduced as under:-- The sentence comes to an end here. Hereafter, it starts again and hence in the last but one sentence it concludes as under:--
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Secondly, as is indicated from the judgment of the trial Court that this point was not raised before the learned Sessions Judge. The defence counsel for that matter did not put any question with this effect either to P.W.1 or P.W.5, the S.H.O., who deposed before the trial Court that the case was registered on that day on the report of Murid Khan i.e. 10-8-1982. The counsel has not challenged this version in cross-examination. Furthermore, the date of despatch is not of much importance. Although the date appears as 12-8-1982 but it is the date of receipt, and hence it cannot be said that it was despatched on the said date. This argument therefore, is devoid of any force, hence repelled. It leads us to the remaining contention of the learned counsel for the appellant i.e. Preliminary investigations was conducted by the S.H.O. Before filing of the F.I.R. This point was agitated before the trial Judge as is indicated in para. 13 of his judgment. The only basis for such argument before the trial Judge was that since P.W.1 Murid Khan in his cross---examination stated that his statement was recorded by the police at the place of occurrence. No question was suggested that F.I.R. Was registered at the place of occurrence. It is pertinent to note that P.W.5, Inspector Jalal Din, categorically stated that he registered the F.I.R. Which bears his signatures and no single question was put by the defence to suggest that F.I.R. Was lodged not in the police station, but on place of occurrence. We are, therefore, inclined to hold that the defence cannot take benefit of the reply to a general question of P.W. 1 who is a villageman and cannot be expected to give mathematical and accurate idea of time. His answer in affirmative that his statement was recorded at the place of occurrence, in no way means that F.I.R. Was recorded at the place of occurrence. There is no evidence on record on the basis of which inference can be safely drawn that the S.H.O. Conducted preliminary investigations before registering the F.I.R. Such an inference cannot be drawn on presumptions which are not substantiated from the material on record. The occurrence took place at 5- 30 p.m. It has come on record that the First Informant went to the nearby village in order to fetch a mare from one Bugti to reach the police station. It is on record that the said mare was left on the Rice Husking Mills. Therefore, delay in lodging the report has been reasonably explained by the First Informant. Last contention in this respect was that the contents of the F.I.R. Regarding motive were false. We would like to deal with this point when we dilate upon the question of motive. The learned counsel invited our attention to the case of Aminullah v. The State, reported in PLD 1982 SC 429 and read the following observations from the said authority:-- "---------.Another circumstance that requires consideration in this behalf is fact admitted by the Investigating Officer that the F.I.R. In the case was the only report of crime registered at the police station on that day, so that report could be recorded at any point of time with impunity embodying the suitable time and hour on that date. The Court ought to have viewed the investigation with greater caution and scrutiny due to unexplained delay that occurred------------.Particularly as to the time of occurrence---------.' The fact of the case in hand are quite distinguishable. The report was lodged at 8-30 p.m. Occurrence took place at 5-30 p.m. In the fields which was about 10 miles away from the police station. Admittedly there were no other means of transport. The First Informant and remaining two eye-witnesses took the dead body from the field placed it nearby on a cot. The cot was brought from the nearby village. He then went to fetch the mare of a Bugti, and rode on it to go to the police station. The mare was left at the Rice Husking Mills. Time spent on all this naturally would cover the delay. It was next contended by the learned counsel that although it is not necessary to establish a motive but once the motive is set up by the prosecution, the prosecution is under legal obligation to prove the same
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It was also urged that since some improvements were made by P.W.1 regarding motive in the statement before the trial Judge in juxtaposition to F.I.R. Hence, the statement may not be given much credence. The basis of this argument was that in F.I.R. The factum of mere disappearance of Wali Muhammad (brother of accused) in a previous incident was mentioned, but during the trial the P.W.1 also added that lie was suspected to have been `killed' by Murid Khan etc. From the perusal of F.I.R. We found that said P.W. Has not only mentioned the fact of disappearance but also of alleged murder of Wali Muhammad. We were unable to find any improvement made by the said P.W. It was next contended that in F.I.R. The fact of murder of Abdul Fateh and Mst. Zadi by Wali Muhammad was deliberately suppressed hence, the witness to the extent of motive should not be believed. We find hardly any force in this contention. It is neither a rule of prudence nor requirement of law that each and every fact regarding motive must be fully explained in F.I.R. The fact of murder and disappearance of Wali Muhammad was mentioned by the P.W.1. The details of previous occurrences were given in reply to the question in cross-examination. We find no fault on this score, too. The learned counsel contended that the prosecution failed to prove the motive set up by it, hence, the Court may be on its guards to assess the credibility of the prosecution evidence. The learned counsel laid much emphasis by contending that in fact there was no motive to kill the deceased. P.W. 1 Murid Khan the father of the deceased set up the motive that one Wali Muhammad brother of accused Ali Sher was allegedly missing and the accused persons suspected him to have been killed by Murid Khan and others. On this suspicion, the accused persons committed the murder of Abdul Latif. It was argued that one Abdul Fateh the cousin of Murid Khan P.W.1, and one Mst. Zadi were previously killed by Walt Muhammad, brother of accused Ali Sher. In that case P.W.1 Murid Khan, Abdul Qadir and one Adullah were charged for the said murder. Since the murder was compounded on the Holy Quran, the complainant party in the said case did not depose against Murid Khan and others as a result of which Murid Khan and others were acquitted. It was thus, contended that the enmity between the parties came to an end in view of the compromise between the parties and therefore, there remained no motive for murder of Abdul Latif. The learned counsel for the appellant invited our attention to the following authorities:-- Case of Hakim Ali and four others v. State 1971 SCMR 432. It was observed in the said case as under:-- "It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence:" 2. The case of Muhammad Sadiq v. Muhammad Sarwar and 2 others as reported in 1979 SCMR 214. In this case their Lordships observed:-- "The fact that the prosecution has failed to prove the motive of the crime is only a circumstance which reacts against its case and as prosecution put forward in the instant case, a motive for the crime which it totally failed to prove, it would only mean that the ocular evidence required to be scrutinised with great caution. And I venture to think that the High Court too might have taken different view of the ocular evidence it its attention had been drawn to this aspect of the case." 3. The case of Abdullah v. State 1985 P Cr. L J 1938 in which it was observed:-- "Adverting to the question of motive it may be stated that in the F.I.R. It has been stated that the appellant and his brothers had raised dispute about the land as they wanted to purchase it but the same was settled by the Nekmard but P.W. 1 Muhammad Siddique inhis testimony before the Sessions Court has stated that dispute was not settled. The alleged dispute had taken place about one year back prior to the incident. Nothing has been brought on record as to the reasons which prompted the appellant to commit murder after about a year"
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It was argued that if at all, had this been the motive, P.W.1 Murid Khan should have been killed since he was involved in murder of Wali Muhammad and he was also available at the spot. But instead, there was no motive to kill Abdul Latif. The following authority was relied upon:-- The case of Maqbul Ahmed Tamimi v. Ziarat Shafi as reported in 1985 P Cr. L J 2881 the said authority, the relevant observations regarding motive were as follows:-- "Accused allegedly having motive against brothers of deceased but obviously having no motive against deceased----------There being no reason for accused to commit murder of deceased while his real enemies were still available for revenge if accused wanted any. Evidence of motive disbelieved in circumstances." There is quite some force in the contention. Since the murder of Wall Muhammad was admittedly compromised on the Holy Quran, there remained no motive for accused Ali Slier to have killed Abdul Latif. This fact was admitted by P.W.1 Murid Khan in his cross-examination and he was one of the accused persons in the said case. We are, therefore, of the opinion that the evidence to the extent of motive has not been satisfactorily established. As far as the recoveries are concerned, the trial Judge has not placed reliance on the same while passing order of conviction and we think rightly so because the reasons given are quite justifiable. Adverting now to the ocular evidence, it may be pointed out that out of three eye-witnesses one (Abdul Qadir) had been killed as deposed by P.W.2. Hence, prosecution examined only two witnesses. The learned counsel submitted that it was an unwitnesed scene and the P.Ws, have implicated the accused persons due to long existing enmity. We may summarise the points urged in this regard as follows:-- (a) The two eye-witnesses were not present on the scene of occurrence. (b) The eye-witnesses are inimical to the accused and falsely implicated them. (c) Being close relations of the deceased they are interested witnesses. (d) They are chance witnesses. Elaborating the first point, it was contended that there is a material contradiction in the statement of the aforesaid two eye-witnesses. P.W. 1 deposed that Ali Nawaz was not present on the scene of occurrence, whereas P.W. 2 stated that he was present. We have perused the depositions of the two eye-witnesses carefully and minutely. In examination-in-chief, the name of Ali Nawaz was not mentioned by P.W. 1 but in cross--examination by the counsel of accused Ali Sher the said P.W. Admitted that Ali Nawaz was not present and had gone to Jaffarabad to hire a bullock, But he had gone at about 3-30 p.m. He further stated that Ali Nawaz had come to the fields after taking meals. 1n the same cross-examination he further stated that Ali Nawaz was already present there when he returned along with police i.e. After lodging of report. In cross-examination of Mr Mangi, the counsel for the accused Bahadur and Ghaus Bakhsh, P.W.1 reiterated again that when the police reached, there was no one except Mir Hassan, Abdul Qadir and Ali Nawaz. P.W. 2 Mir Hassan admitted his presence. The presence of Ali Nawaz is thus, admitted by both the witnesses. After a careful examination, it may be found that there was no contradiction at all. Mir Hassan states that they had gone for planting paddy seedlings at about 12-00 noon. Ali Nawaz was present. This fact is not contradicted by the P.W. 1. He states that Ali Nawaz went for bullock at about 3-30 p.m. He was present in the files before 3-30 p.m. But not when the occurrence took place. It was then contended that in sketch of Wardat (Exh. P.G.) the points where the eye-witnesses were standing were not pointed out although the point from where the accused Ali Sher fired at the deceased is shown and also the point where the deceased was planting seedlings was indicated Thus, it was urged that there arses a reasonable presumption that both the eye-witnesses were not present. This point is devoid of force, because this at the most, may be an omission on the part of investigating Officer. However, it will not invalidate the testimony of eye-witnesses who are otherwise reliable. We may find support from the case of Nauroz v. State as reported in 1986 P Cr. L J
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3019. The two P.Ws. Have given full account of the incident. They have not been impeached in cross-examination on any material point. The fact that they saw deceased was planting paddy seedlings is further proved from the report of Chemical Analyser (Exh P.H.), which was not challenged by the defence. This leads us to the next submission. The learned counsel contended that eye-witnesses were inimical towards the accused due to long-standing enmity, therefore, they falsely implicated the accused persons. The said proposition of enmity was already dilated upon by us while disposing of the point of motive. It is an admitted position that the matter was compromised on the Holy Quran. Not only that but as a consequence whereof nobody deposed against P.W.1 Murid Khan and others who ultimately were acquitted in the murder case of Wali Muhammad. Had this been a bone of contention why then Murid Khan and others were spared by Ali Sher and others when they were involved in murder of his brother. This was set at rest once and for all. Besides this there seems to be no other enmity. At least the record is silent to indicate any other hostility. Therefore, we find this argument as devoid of force. However, it is an admitted position that P.W.1 is the father of deceased and P.W. 2 is also near relative of the deceased. Mere relationship cannot be held a ground to discredit a witness if otherwise his deposition is found confidence-inspiring particularly when inimical attitude towards the accused persons is found missing. Another factor in this respect is that the parties are collateral. Accused Ali Sher is also nephew of P.W. 1. There is no cause on record to establish that P.Ws. Falsely implicated the accused persons out of malice. At this stage the learned counsel for the appellant also submitted that non-production of Ali Nawaz may be taken into consideration and inference may be drawn in favour of the defence. In fact, as observed hereinabove that Ali Nawaz was present in planting paddy seedlings but it was not the case of prosecution that Ali Nawaz was present at the time of occurrence. The deposition of Mir Hassan to the extent that he was present at about 12-00 noon has been explained by P.W. 1 that he left for Jaffarabad and returned when occurrence had already taken place. No question was put to him or to Mir Hassan by the defence with the effect whether Ali Nawaz witnesses the incident or not. Non-production of Ali Nawaz, therefore, in our considered view will not prejudice the case of prosecution in any manner. The learned counsel for the appellant referred to the case of Mst. Muhammadia v. Zari Bacha PLD 1982 Pesh. 85. Mst. Bilqis who allegedly witnessed the incident was not produced by the prosecution. But it has got no bearing on the fact of this case because here Ali Nawaz did not witness the occurrence. In the case of Sher Dil alias Sher Gul v. State 1973 P Cr. L J 812 it was observed…
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