Full Judgment Text & Judicial Ruling

1969 P Cr

1969 P Cr. L J 93

[Azad J & K]

Before Yar Muhammad Khan and Rahim Dad Khan, JJ

MUHAMMAD RAHIM KHAN‑----appellant

Versus

SARKAR‑Respondent

Criminal Appeal No. 4 of 1968, decided on 7th November 1968.

(a) Witness‑-----Child witness, a girl of 6 years, found to be capable of understanding questions put to her and giving intelligent answers‑Such witness found consistent and not making ally improvement on original story told by her to police‑Minority of such witness cannot, in circumstances of case, make her statement unreliable.

Sona Miah v. The State P L D 1960 Dacca 396 distinguished.

(b) Penal Code (XLV of 1860)-----S. 302‑Deceased in dying declaration, made thrice, consistently naming accused as being responsible for firing at deceased and causing their death‑Mere fact that some of accused named in dying declaration not challaned in Court‑Does not detract from value of such declaration Evdence Act (I of 1872), S. 32.

Ali Asghar and another v. The State P L D 1968 Pesh. 47; Khushhal Rao v. State of Bombay P L D 1958 S C (Ind.) 203; Abdur Raziq v. The State P L D 1964 Pesh. 67 ; Muhammad Khan and others v. The State P L D 1961 Lah. 936 Mian Fazli Rahim v. The State P L D 1961 Pesh. 137 and Sona Miah v. The State P L D 1960 Dacca 396 ref.

(c) Penal Code (XLV of 1860)--------S. 302‑Murder‑Sentence Accused acting in cruel manner doing to death four innocent persons‑Accused, held, not entitled to any leniency but deserved extreme penalty of death.

Raja Muhammad Khurshid Khan for Appellant.

Kh. Amir‑ud-din, Addl. Govt. Advocate assisted by Said Muhammad Khan for the State.

JUDGMENT

YAR MUHAMMAD KHAN, J.‑-----Muhammad Rahim Khan alias Farooq son of Muhammad Akbar Khan Sudhan of village Pothi Makwalan Tehsil Rawalakot District Poonch aged 23 years was tried under section 302, A. P. C. for the murder of Mst. Sano Bi, wife of Muhammad Yaqub Khan P. W. aged 55 years, Gulzar and Mst. Saghiri Begum son and daughter of Muhammad Yaqub Khan and Sano Bi aged 17 and 16 years respectively and Javade their grandson aged 8 years on the night of 30th April 1967, at about 8 p.m. in the house of Yaqub Khan where all the deceased happened to be at that time. In the report to the Police, which was lodged by Muhammad Akram Khan P. W. at about 11 o'clock that same night at Police Station, Rawalakot, it was alleged by him that Muhammad Yaqub Khan, whose family members had been murdered, was serving in the Pakistan Navy at Karachi and Muhammad Bashir P. W. his elder son was also away in the army somewhere in Pakistan. The complainant stated that at about 9 p.m. his co‑villagers Habib Khan and Afsar Khan informed him that some rifle shots had been heard from the direction of Yaqub Khan's house and that some of the neighbours had already collected at a place and were waiting for him to come so that they could all go to the spot in order to find out who had fired the shots and why they were fired. He accompanied them to the place where other villagers had gathered and he then accompanied by Afsar Khan, Habib Khan, Mohd. Afzal, Mohd. Siddique, Muhammad Hanif and others went to the house of Muhammad Yaqub Khan. First of all he entered the house through the front door and noticed in the light of the oil burner that Saeeda Peri P. W. daughter of Muhammad Sarwar, aged 6 years, was sitting there. At a short distance from her he saw Gulzar Khan. Mst. Saghiri Begum, Javade and Mst. Sano Bi lying prostrate on the ground in a pool of blood. Mst. Sano Bi and Javade had already died and Gulzar and Mst. Saghiri Begum were yet alive. When asked as to what had happened to them he was told by Mst. Saghiri Begum deceased that after they have all had their evening meals she pro ceeded to bolt the front door of the house. When she had bolted it from inside somebody pushed it hard from outside in order to open it. As a result of that the door was flung open and Muhammad Rahim Khan alias Farooq accused‑appellant came in armed with a rifle and he immediately started firing at them. Thereafter Muhammad Razaak and Muhammad Hayat brothers of the accused bad also come in. According to Mst. Saghiri Begum, in that firing her mother Mst. Sano Bi, her brother Gulzar and her nephew Javade and she herself were hit with the bullets. As for her she had received a bullet in the chest. Then Rahim accused took out a grenade and threw that live hand‑grenade on them which exploded with a bang in their midst. Gulzar also made a statement to the same effect. The informant told the Police that Gulzar and Mst. Saghiri were in a critical condition and might die at any moment. It was also alleged by him that Muhammad Rahim Khan accused was prompted to kill the members of the family of Muhammad Yaqub Khan for the reason that the latter and his wife Mst. Sano Bi had refused the hand of their daughter Mst. Saghiri Begum in marriage to him. The accused and other members of his family had brought up this matter in a number of Jirgas but they could not succeed in their attempt. The accused had publicly proclaimed on different occasions that if he did not succeed in getting the hand of Mst. Saghiri Begum in marriage to him he would do away with his own life and also kill the girl. On receipt of this information a case under section 302, A. P. C. was registered by the Police against the accused and those named as his accomplices and the Sub‑Inspector Police at once proceeded to the spot for investigation. He recorded the dying declaration of Mst. Saghiri Begum who was yet alive and also took into possession the piece of grenade and the empties of .303 rounds which had been fired by the accused from his rifle. He also prepared the injury list and sent the dead bodies of Mst. Sano Bi, Gulzar and Javade deceased for post mortem to the Civil Hospital, Rawalakot. Mst. Saghiri Begum, who was yet alive, was also sent to the hospital for treatment but she died there after making a dying declaration to the Naib Tehsildar Magistrate III Class, Rawalakot.

In the ensuing investigation conducted by S. H. O. Rawalakot and Raja Muhammad Aslam Khan Kiyani Inspector Police specially deputed by the Superintendent of Police, Poonch, the accused who was absconding after the occurrence was arrested from a cave in the jungle adjoining village Pothi Makwalan. At the instance of the accused a rifle mark 4, the five hand‑grenades and other military equipment was also recovered by the Police from various places situated in the same jungle. During the investigation a note‑book in which the accused had recorded his sentiments and feelings and his future plans for dealing with the family of Mst. Saghiri Begum was recovered in the search of his house. Besides a number of letters written by the accused to Muhammad Bashir P. W. (elder brother of Mst. Saghiri Begum deceased) and others wherein he had extended threats to them if Mst. Saghiri Begum was not given in marriage to him, were also taken into possession by the Police.

It seems proper to mention here that the accused‑appellant after having availed of leave of two months in his village had gone back to his unit on the 26th of April 1967. He was issued the rifle mark 4 from the rear H. Q. of his unit at Chatter along. with other necessary equipment and sent to a military post situated within Pir Kanti Range. He joined his company on the C. F. L. and was assigned some duty. He did not stick to it and deserting his company he returned to his village alongwith the rifle, grenades etc. He spent a night on the way and reached his village via Sangola on the evening of 30th April 1967. the occurrence took place on the same night with weapons of military‑type as would appear from the empties of the .303 rounds and the pieces of the hand grenade recovered from the place of occurrence.

When confronted with the evidence brought on record after the completion of the prosecution case the accused‑appellant came out with a very lengthy explanation. The gist of his statement recorded under section 342, Cr. P. C. is that he was betrothed to Mst. Saghiri Begum daughter of Muhammad Yaqub Khan P. W. and that the marriage ceremony was to take place prior to his departure for his unit. As it was difficult for him to procure the golden ornaments demanded by the father of his finance in the short time left at his disposal, he asked for more time and consequently the marriage was put off for another 5 to 6 months in order to give him sufficient time for preparation. This postponement was agreed to by both the sides and it did not result in any ill‑will between him and the family of the deceased. He meant to abide by the fresh arrangement and was keen on marriage with Saghiri Begum. He went back to his unit and reported for duty at Chatter. As soon as he collected his equipment from the rear H. Q. on 26th of April 1967, he was reminded of the pleasant days he had spent in the company of his lady love, while he was in the village on leave. He was overwhelmed by a desire to go back and make love to her. On the 27th of April when he left for Pir Kanti in civil clothes alongwith his rifle etc., he was still thinking of her and was unable to put her out of his mind. The sweet memories which he had of her kept on haunting him throughout this journey until he reached his destination. Despite his best efforts he could not foreget his girl Mst. Shan Peri daughter of Muhammad Akram Khan P. W. daring the next two days he spent at his post. In this struggle he lost his sense of duty and temptation to go back to his village became so acute that he could no longer resist it. He left his post, started walking towards Rawalakot and kept on walking in that direction as if in a trance until he reached his village. On arriving there he made straight for the house of Mst. Shan Peri and when he was at a distance of about 100 yards from it he sat down behind some shrubs. He cannot recall whether he had backoned to the girl or she had seen him, she came to him and then they had a heart to heart talk for a long time. When their meeting came to an end, he realized for the first time that he had deserted the Army along with the rifle. This awoke in him the sense of responsibility and he began to repent for his foolishness. He also told Mst. Shan Peri that he had no intention to desert the army. Then on the advice of Mst. Shan Peri it was decided that he should spend the night in the school house of the village and go‑back to his unit on the following morning. According to her advice he hid the rifle in the jungle wherein they were sitting. She then went back to her house with the promise that she would bring food for him after it was dark. He went to the village school and got into a room which had not been bolted from inside. He had not been there for very long when he heard some commotion from the direction, of the village. As promised by her Mst. Shan Peri failed to bring any food for him. In order to make sure that the rifle was there he went to the place where he had hidden it but he could not find it. He searched the place for the whole of that night but did not succeed in finding it. From the loud talk between the villagers he learnt on the following morning that the deceased had been done to death by some military man. As he could not find the rifle he decided to stay there longer so that search for the same could be continued. In the meantime he came to know that his father, two brothers and a nephew had been arrested by the Police and that he too was wanted by the police in connection with the murder. He continued the search for the rifle for the next three days but no trace of it could be found. As the Police was after him he hid himself in the cave called. It was from that place that he was arrested by the Police. He disclosed to the Police that he had lost his rifle and he could not find it despite his best efforts. The Police Officials told him not to worry about it and also that he was going to find it from the same place. Then they took him to that place where he had hidden the rifle. On the way he was informed by them that he would also find a bundle of clothes near the place where he had hidden the rifle and when he finds it he must tell the people gathered there that the same belonged to him. On reaching the spot he found the rifle. Thereafter he was taken to the house of Muhammad Akram Khan P. W. where the Police wanted him to write something for them in a note‑book but he refused to do that. The Police were exerting their pressure on him from the 4th of May to the 10th of May 1967, but he resisted their attempt successfully. Ultimately on the 11th of May when he could no longer bear the torture he was being put to be yielded to their suggestion and wrote down in the note‑book what was dictated to him by them.

The learned Sessions Judge has disbelieved this explanation of the accused‑appellant which he offered in respect of his deser tion from the army and as to his presence in the village and relying on the direct evidence of Mst. Saeeda Peri, the dying declarations of Gulzar and Mst. Saghiri Begum deceased and the recovery of the rifle, grenades etc., at the instance of the accused and that of the letters P‑39 and P‑41 and the note‑book P‑10 held that there was preponderance of evidence on record which connected the accused with the crime. He has also placed reliance on the evidence of the handwriting expert recorded on commission by the A. D. M., Rawalpindi, to the effect that the contents of the note‑book and the letters produced by Muhammad Bashir P. W. were in the same hand and the writer of which was the accused. The learned Sessions Judge is further of the opinion that this evidence adduced by the prosecu tion proves beyond doubt that the accused‑appellant who had a strong motive to avenge himself on the family of the deceased had done all the four deceased to death by firing his rifle and throwing a grenade at them. According to him this conclusion in turn finds support from the evidence of Doctor Muhammad Aslam Khan C. M. O., Rawalakot who performed the post mortem examination on the dead bodies of the deceased and who found that the injuries to the deceased had been caused with bullets fired from a rifle of military‑type and from pieces of an exploded grenade. The statements of Muhammad Sharif Khan S. H. O., Rawalakot and Raja Muhammad Aslam Khan Kiyani Inspector who investigated the case, in his opinion, are also of immense corroborative value.

In order to have an idea of the nature of the injuries sustained by the victims of the attack we would like to reproduce here the statement of Doctor Muhammad Aslam Khan who performed the post‑mortem examination on the dead‑bodies of the deceased. According to the doctor Mst. Sano Bi deceased had the following injuries :‑

(1) Gun‑shot wound on the left side of the chest below the clavical 2" from the mid sternal line, round in shape 4" in size margin inverted. Exit wound on the back of the left side of the chest at the middle of the medial border of scapula at 3rd 4th inter‑costal space size 1" x 3".

(2) 3 gun‑shot wounds in 5th, 6th and 7th intercostal space " from the mid‑sternal line on the medial side of right breast round in shape, " in size breaking lumber vertebrae right kidney was coming out.

(3) Gun‑shot wound at the iliac region on the left side just about the iliac prominence size " margin inverted. Exit wound at the middle of mons pubis size 4" x 4" margin evicted.

In his opinion the death was caused by shock, excessive haemorrhage and injury to the vital organs such as heart, both lungs, liver and right kidney. The injury was caused by gun shot (.303) wound.

The same doctor found the following injuries on the dead body of Mst. Saghiri Begum:‑

(1) Gun‑shot wound, entrance upper part of the right side of the chest above the clavical 3" from the tipe of Achromion, round in shape size 4" edges inverted black in colour.

(2) Exit wound on the back left side of the chest at the middle of the medial border of the scapula at the level of the 3rd and 4th intercostal space, size 2" x 2 " margin raggid and everted.

In the opinion of the doctor the cause of death was shock due to excessive haemorrhage and injury to the vital organs (both lungs). The injury is caused by gun‑shot (.303).

On the dead‑body of Gulzar Khan deceased following injuries were found:‑

(1) One gun‑shot on the front of the right side chest at the third intercostal space 1 " from mid‑stanal line about size of 1/8th" round in shape edges inverted, black in colour. Exit wound on the back of the right side of chest 1 " from the mid line from 10‑12‑ribs, size 3" x 2 " edges irregular, everted and ascending colon coming out of the wound.

In his opinion the cause of death was shock due to excessive haemorrhage and injury to the vital organs such as lungs liver and kidney. The injury was due to gun‑shot (.303).

The following injuries were found on the dead body of Javane deceased:‑

(1) Lacerated wound oval in shape in the centre of head, size 8" x 3 " edges irregular, raggid, upper part of the frontal bone both parital bone is absent. Brain matter coming out.

In his opinion the cause of death was due to shock haemorrh age and injury to the vital organs‑brain. The injury was caused by Band‑grenade.

The injuries as described above were admittedly caused to the deceased persons with the shots fired from a rifle of military type and with the shrapnel of hand‑grenade as alleged by the prosecution. Whether it was the accused‑appellant who caused these injuries to the deceased or they were caused by some other person is to be ascertained from the evidence brought on record by the prosecution. In this case the evidence by the prosecution can be divided into following categories :‑

(1) The statement of Mst. Saeeda Peri, a minor of 6 years age.

(2) The dying declarations of Mst. Saghiri Begum and Gulzar Khan regarding which Muhammad Akram, Muhammad Hanif, Muhammad Siddique, Sardar Abdul Aziz Khan S. H. O. and Abdul Aziz Khan, Naib‑Tehsildar Magistrate III Class P. Ws. have deposed at the trial before the Sessions Judge, Rawala kot.

(3) The recovery of the weapons at the instance of the accused i.e. the rifle, hand‑grenades etc.

(4) The recovery of the note‑book from the house of the accused wherein he has given an account of his failure and his reactions of it and also his resolve to avenge himself on the family of Muhammad Yaqub Khan.

(5) The opinion of the handwriting expert that the note book and the letters recovered during investigation were written in the hand of the accused.

(6) Abscondance of the accused with the rifle from his unit immediately before the occurrence and his presence in the village on the night of the occurrence.

(7) The medical evidence as to the cause of the death of the deceased persons.

(8) The motive which the accused had for doing these persons to death.

Raja Muhammad Khurshid Khan learned counsel for the appellant has argued that Mst. Saeeda Peri is a child witness capable of being tutored and, therefore, it was not safe to rely on her evidence for the conviction of the accused. He also pointed out that as deposed by Muhammad Hanif P. W. the witness had not identified the assailant at the time of the occurrence.

We have perused the statement of Muhammad Hanif and it is abundantly clear from it that Mst. Saeeda Peri was present in the house when the witness accompanied by others had visited the place immediately after the occurrence. It is also borne out from the record that Muhammad Akram Khan complainant had gone to make the report at the Police Station Rawalakot after he had spoken to Saeeda Peri. It is thus established that Mst. Saeeda Peri who happened to be a grand daughter of Muhammad Yaqub Khan was present in the house at the time of occurrence and it was not improbable for her to identify the accused Muhammad Rahim Khan in the light of the oil burner which they had in the room where the deceased were done to death. Mst. Saeeda Peri in her evidence has stated in unequi vocal terms that three persons were standing outside the house and that Muhammad Rahim Khan accused had come in after breaking open the door which had been bolted by her aunt Mst. Saghiri Begum. As Muhammad Rahim accused frequently visited the house in connection with his betrothel with Mst. Saghiri Begum and lived in the same village it was but natural for the witness to have been acquainted with him and recognized him at the time of the occurrence. Under the circumstances we do not think that she could make a mistake in the identification of the accused. Now as for the objection that she was a mere child and was capable of being. tutored we are .of the view that such a thing may be possible and it is not aways safe to rely on the sole evidence of a minor witness for the conviction of an A accused in cases of the nature of murder unless it was apparent from other circumstances of the case that what she was stating was correct. In this connection we must refer to the observations of the learned Sessions Judge which he has made about this minor girl after testing her intelligence by asking questions from her before recording her statement. He has made a note of his impressions which is to the effect that she was fully capable of understanding the questions asked from her and had given intelligent answers to him. As such her minority, in our opinion, cannot make her statement unreliable. Whether she had been tutored to say so we have perused her statement made to the Police under section 161, Cr. P. C. soon after the occurrence and we are constrained to say that she had not departed from the stand taken by her in that statement. She had named the accused‑appellant as the assailant in that statement and she had repeated the same thing before the learned Sessions Judge. As such, in our opinion, despite her minority her statement cannot be ignored particularly when it stands proved beyond any reason able doubt that she was present at the place of occurrence at the time the deceased were killed. P L D 1960 Dacca 396 the authority cited by Raja Muhammad Khurshid Khan learned counsel for the appellant in support of the proposition that it was not safe to accept evidence of a child witness, is not applic ation able in the present case. In that case the child had made improvement on the original version related by her to the Police when she deposed before the trial Judge but as held above the same has not happened here and in this case the child witness has been found consistent and did not make any improvement on the original story told by her to the Police.

Having come to this conclusion we have now to determine what weight is to be attached to the dying declarations of Mst. Saghiri Begum and Gulzar Khan deceased. It was argued by the learned counsel for the appellant that Mst. Saghiri Begum on whose information the F. I. R. was lodged had named three persons in her declaration to the complainant. She had repeated the same version before the Police in her statement Exh. P. B. that Muhammad Rahim Khan accused, Muhammad Hayat and Muhammad Razaak his brothers had entered the house at the time of the occurrence. She however departed from this version and in her statement made before Sardar Abdul Aziz Khan Naib‑Tehsildar Magistrate III Class, Rawalakot, in the hospital instead of three persons she named all the male members of the family of the accused as assailants. This improvement on her original version, he has contended, makes her dying declaration doubtful which cannot be relied on as genuine and true. According to him the dying declaration of such an interested person which does not appear to be true cannot be treated as a corroborative piece of evidence and can lend no support to the statement of Mst. Saeeda Peri. He has also pointed out that Muhammad Razzak, Muhammad Hayat, Muhammad Irshad and Muhammad Akbar who had been named in Exh. P. X. as assailants were not challaned before the trial Court and the dying declaration Exh. P. X. of Mst. Saghiri Begum in that respect was ignored by the police and the Court below. According to him it is well established that a dying declaration cannot be accepted as regard some and rejected as regard rest of the several accused and should be read as a whole. As such to her dying declaration becomes doubtful. In this connection he has cited P L D 1968 Pesh. 47, P L D 1958 S C (Ind.) 203, P L D 1964 Pesh. 67, P L D 1961 Lah. 936, P L D 1963 Lah. 264, (sic) P L D 1961 Pesh. 137 and P L D 1960 Dacca 396.

In P L D 1968 Pesh. 47 it was held by the learned Judges of the Division Bench that :---

"The rules as to corroboration of the evidence of the approver must apply almost with the same rigour to the cases of interested witness or witnesses as also to the cases of dying declarations of interested persons. In cases of interested dying declaration where several persons are charged, the Court must insist as a rule of…

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