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Petitioner: ABDUL SUBHAN VS Respondent: RAHEEM BAKHSH and another
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Fazal Ilahi Khan, Saeeduzzaman Siddiqui Title: ABDUL SUBHAN vs RAHEEM BAKHSH and another Case No.: Criminal Appeal No,267 of 1992, Date of Judgment:1993-11-25 Reported As: PLD 1994 Supreme Court 178 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SAEEDUZZAMAN SIDDIQUI, J.---The above Criminal Appeal with the leave of this Court is directed against the judgment of Lahore High Court, dated 16-2-1991, whereby the appeal filed by respondent Raheem Bakhsh against his conviction and sentence under section 302, P.P.C. By Additional Sessions Judge, D.G. Khan was allowed and he was acquitted in the case. The leave granting order in the case is as follows:--- "The petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 16-2- 1991 whereby the conviction of the respondent No,1 under section 302/34, P.P.0 on two counts was set aside and he was acquitted. (2) The main ground on which leave to appeal is sought is that there has been a serious misreading of the statement of the investigating officer with regard to the crime empties recovered from the spot. Liaqat All S.I./S.H.O. (P.W.10) made the following statement with regard to the empties:- 'The empties of bullet are P.9, P.10 and P.11 which were lying at the spot. These were taken into possession vide memo. Exh.PE and were made into sealed parcel... ... I know nothing about jacketed bullet. I had not taken into possession any jacketed bullet and nor sent the same to Forensic Science Laboratory and during my posting at P.S. Kot Mubarak, the said empties or their result was not received. It is correct that the said three empties of .7 MM rifle were not before me and they are not produced in Court till to-day.' (3) The High Court while scrutinizing this statement in the impugned judgment observed as hereunder:-
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`The only piece of evidence on the basis of which the trial Court convicted the appellant is that the crime empty found at the spot matched with the gun recovered at his instance. This most important piece of evidence has been demolished by the admission of the investigating officer, that neither he had taken into possession any bullet from the spot, nor sent the same to Forensic Science Laboratory for comparison.' (4) We consider that this is a fit case for grant of leave to appeal in order to ensure that the principles applicable to the safe administration of criminal justice have been duly observed in the case. Hence, leave to appeal is graded. (5) Bailable warrants in the sum of Rs,25,000 with two sureties in the like amount to the satisfaction of District Magistrate/Duty Magistrate, Dera Ghazi Khan shall issue against respondent No,1/Raheem Bakhsh. (6) Mr. Talib Hussain Rizvi, Advocate accepts notice on behalf of the respondent No,1/Raheem Bakhsh." ' Respondents, Raheem Bakhsh and Allah Wasaya were tried for the murder of Abdur Rehman and Faqir Bakhsh under section 302/34, P.P.C. By the Additional Sessions Judge, Dera Ghazi Khan. The learned trial Court acquitted Allah Wasaya in the case giving him the benefit of doubt but convicted respondent No,1 (Raheem Bakhsh) under section 302, P.P.C. On two counts and sentenced him to death on each count plus fine of Rs,30,000 on each count or in default R.I. For 5 years. It was also directed by the trial Court that on recovery of the fine, a sum of Rs,40,000 out of it was to be paid to the heirs of the deceased in equal shares by way of compensation. ' According to F.I.R. Which was lodged by Abdul Subhan (P.W.5) in the case there existed enmity between the complainant party and the accused on account of local bodies elections in which deceased Abdul Rehman contested election against the accused Raheem Bakhsh and lost the election but had declared his intention to contest the election against Raheem Bakhsh again. One day before the incident, Raheem Bakhsh through one of his party-men Amanullah got a case of abduction of minor girl Mst. Tasleem registered against the complainant and his 4 other relatives at Police Station, Batil on account of which deceased Abdur Rehman and accused Raheem Bakhsh had exchanged hot words and Raheem Bakhsh had threatened the deceased of dire consequences. On the day of incident the complainant and the deceased were to go to Police Station, Batil in connection with the investigation of the abduction case registered against them. Deceased Abdur Rehman asked the complainant to proceed to Police Station Batil and he was to follow the complainant on a motorcycle. The complainant accordingly started from his house and stopped at the hotel of Ibrahim alias Nikri to take tea where Amir Bakhsh son of Muhammad Bakhsh alias Mamdo and Muhammad Bakhsh son of Allah Ditta, both residents of village Yaroo were already sitting. While the complainant was sitting in the hotel of Ibrahim alias Nikri Raheem Bakhsh accused armed with a .7 MM rifle and Allah Wasaya son of Pandhi armed with revolver passed in front of the hotel of Ibrahim alias Nikri and went towards east and sat on the 'Thalia' of shop belonging to one Allah Dad. After some time at about 7-00 a.m. Deceased Abdur Rehman passed in front of the hotel where complainant was sitting on a motorcycle alongwith Faqir Bakhsh who was sitting behind Abdur Rehman on the pillion. No sooner deceased Abdur Rehman reached near the place where accused Raheem Bakhsh was sitting, the latter got down from the `Thalia' of shop of Allah Dad and fired from his rifle at Abdur Rehman which hit him on his right shoulder near the neck. The deceased Abdur Rehman fell down alongwith his motorcycle in front of the gate of Union Council. After he fell down, Raheem Bakhsh accused made a second fire with his rifle which landed on the back of the deceased near shoulder. Allah Wasaya also fired from his revolver on the deceased Abdur Rehman which missed. Raheem Bakhsh accused then opened a third fire on Faqir Bakhsh which hit on his chest and he also fell down after receiving the fire shot injury. The complainant alongwith Amir Bakhsh (not produced) and Muhammad Bakhsh (P.W.6) tried to
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apprehend the accused but Allah Wasaya fired at them which missed. The accused also threatened them that if any one of them came near them, he will be killed. Out of fear they kept away and the accused made good their escape. The injured Abdur Rehman and Faqir Bakhsh were removed in critical condition to Civil Hospital D.G. Khan by the complainant in wagon. Faqir Bakhsh died on the way while Abdur Rehman died in the hospital. The F.I.R. Was recorded at Police Station Batil at 9-40 a.m. After usual investigation, the two accused in the case were sent up to stand trial before the Additional Sessions Judge, D.G. Khan. ' The trial Court found the ocular testimony of the two P.Ws. (Abdul Subhan, complainant, and Muhammad Bakhsh) as confidence inspiring and consistent, as they stood the test of long cross- examination. The motive alleged against respondent No,1 was also found proved as the accused had not challenged the same. The recovery of the licensed rifle of the accused Raheem Bakhsh and the positive report of ballistic expert provided corroboration to the ocular testimony of the two P.Ws. The medical evidence was also found confirmatory of the injuries alleged on the person of the two deceased persons in the F.I.R. The trial Court relying on the ocular testimony, the motive, the recoveries and the medical evidence convicted respondent No,1 under section 302, P.P.C. And sentenced him in the case as aforesaid but acquitted the co-accused Allah Wasaya giving him the benefit of doubt. ' The learned Judges of the High Court while hearing the murder reference against respondent No,1 and the appeal filed by him against his conviction and sentence by the trial Court, came to the conclusion that the two eye-witnesses examined in the case by the prosecution were chance witnesses and their presence at the spot was doubtful as the reason given by them for their presence at the spot was not convincing. It was also found by the learned Judges that both the eye-witnesses were interested and inimical to the accused and as such their evidence could not be relied upon. It was also found by the learned Judges of the Appellate Bench that the ocular account of the incident furnished by the two eye-witnesses was contradicted by the medical evidence in the case. The precise reasons given by the learned Judge for the above conclusion were as follows:--- "In the present case, we find the ocular version is being contradicted by the medical evidence, as per admission of the doctor, the bullet pierced through the body of Abdul Rehman deceased, still it did not cause any injury to Faqir Bakhsh deceased who was sitting with him on the pillion. In addition to this, nature and dimension of the injuries Nos.1 and 2 sustained by Abdul Rehman show that these were not caused by the rifle allegedly used by the appellant. As per postmortem report, there is one wound of entry and three wounds of exit, which lends support to the defence version, that the deceased did not meet his death by rifle shot, but by cartridge from .12 bore gun fired from a close range." ' The learned Judges of the High Court finally concluded the case as follows:--- "13. The only piece of evidence on the basis of which the trial Court convicted the appellant is that the crime empty found at the spot matched with the gun recovered at his instance. This most important piece of evidence has been demolished by the admission of the investigating officer, that neither he had taken into possession any bullet from the spot, nor sent the same to Forensic Science Laboratory for comparison. Muhammad Bakhsh (P.W.6) has also supported the I.O. That he did not notice any crime empty at the spot, even this is not mentioned in the F.I.R. Which was lodged promptly so no reliance can be placed upon this evidence." ' We have carefully examined the reasons given by the learned Judges of the High Court while reversing the judgment of the trial Court and acquitting respondent No,1 in the case, and are of the view that their conclusions are based on misreading of the evidence on record. The learned Judges of the High Court while reversing the judgment of the trial Court also failed to take into account the reasons given by the trial Court in holding the respondent No,1 guilty of offence under
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section 302, P.P.C. And convicting him for the same. We will, therefore, now proceed to examine each of the above reasons, given by the High Court in acquitting the respondent Raheem Bakhsh in the case, in order to find out if these reasons are supported by the evidence on record. ' The incident took place on 21-6-1987 at 7-00 a.m. And the F.I.R. Was promptly lodged by the complainant at 9-30 a.m. Which contained vivid details of the incident. The seat of injuries on the persons of the two deceased persons and the manner in which the incident took place found full corroboration from the medical evidence in the case. The promptitude with which the F.I.R. Was lodged and the details of the incident mentioned in the F.I.R. Do show that it was lodged by a person who had witnessed the incident personally. The learned Judges of the High Court firstly found that the two eye-witnesses produced by the prosecution in the case were chance witnesses and their presence at the spot was doubtful as the explanation given by them for their presence at the spot was not convincing. The learned Judges of the High Court while discarding the evidence of two eye-witnesses on the ground that they were only chance witnesses, did not advert at all to the following reasons given by the trial Court for believing their presence at the scene of the offence:-- - "Both the eye-witnesses claim that they were sitting in front of the tea stall of one Ibrahim alias Nikri and were having tea there when the deceased were fired at by Rahim Bakhsh accused in their view. It is in their evidence that the deceased and the P.Ws. Offered morning prayers in one mosque and chalked out a programme of joining investigation in the abduction case of Mst. Tasleem registered against Abdul Subhan complainant and others. According to the programme both the deceased were going to the police station on a motor-bike whereas the complainant and P.W.6 were having tea at the said tea-stall and were waiting for transport for reaching the police station. The important question which needs serious thought is as to whether the presence of the eye-witnesses at the scene of occurrence was plausible or not. For two reasons I believe that both the eye-witnesses were present on the spot of murder, at the time of occurrence, (i) that a criminal case under section 363, P.P.C. (Exh.DA) had been registered against Abdul Subhan complainant and others a day before the present occurrence and it is under standable that Abdul Subhan and P.W.6 had to go to the Police Station for joining the investigation; (ii) that as per statements of both the P.Ws. Their residential houses were at a distance of about 150 to 170 feet away from the place of murders and this very short distance also justified their presence at the spot of murder." It is no doubt open to the First Appellate Court to reach a conclusion different from the one arrived at by the trial Court on re-appraisal of the evidence on record on a point of fact but in doing so the First Appellate Court cannot totally ignore the reasonings given by the trial Court in support of its conclusions. The First Appellate Court while disagreeing with the conclusion of the trial Court, on a point of fact, will have to take into account the reasons advanced by the trial Court and if it disagrees with the reasonings of the trial Court it must give its own reasons for such disagreement which should proceed on some logical basis. If the First Appellate Court merely says that it does not agree with the conclusion of the trial Court without adverting to the reasons given by the trial Court in support of the conclusion and without disclosing any logical basis for such disagreement, such finding by the First Appellate Court, which is at variance with trial Court's finding, cannot be binding. In the case before us the reasons given by the trial Court for holding that the two eyewitnesses in the case were present at the time of occurrence at the spot, were not only convincing but the evidence of these two witnesses remained totally unshaken in spite of a very lengthy and searching cross-examination by the counsel for respondents. The learned Judges of the High Court, however, totally ignored the reasons given by the trial Court in believing these two witnesses while disagreeing with the trial Court. The trial Court, in our view for good reasons reached the conclusion that the evidence of the two eye-witnesses in the case inspired confidence.
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' The next reason given by the learned Judges of the High Court in disbelieving the evidence of eye- witnesses in the case was that there existed contradiction between the ocular testimony and the medical evidence in the case. According to learned Judges, the medical evidence shows that the bullet fired by the respondent had pierced through the body of Abdur Rehman deceased but it did not cause any injury to the other deceased Faqir Bakhsh who was sitting behind him on the motor- cycle which according to learned Judges was not possible. It was also found by the learned Judges that injuries Nos.1 and 2 sustained by Abdur Rehman could not have been caused by the rifle allegedly used by respondent Raheem Bakhsh as the post-mortem report showed three exit wounds corresponding to one entry wound which proved that the deceased was shot at by .12 bore gun from a close range. The learned Judges of the High Court once again failed to take into consideration the reasoning of trial Court in this regard and also misread the evidence on record. The site plan (Exh.PJ) shows the place where the deceased Abdur Rehman was first fired at by the respondent as point No,(1). It also shows the place where the deceased Abdur Rehman was fired at second time when he fell down after receiving the first shot as point No,(2). The place shown in the site plan as point No,(2) is also the place where the other deceased Faqir Bakhsh was fired at by the accused. The place from where the accused fired at the two deceased persons is shown as point No,(3) on the site plan. The distance between point Nos. (2) and (3) is stated to be 38-1/2 feet. If the deceased persons were fired from such a long distance by 12 bore gun, the entry wound could not be a single one. The learned Judges of the High Court, however, held that the deceased were fired at from a close range. This conclusion of the learned Judges is contrary to the medical evidence on record which did not show any laceration or blackening at the point of entry wound and there were also no signs of unburnt powder present in the body of the deceased. The trial Court while considering this aspect of the case observed as follows, which was totally ignored by the learned Judges of the High Court:-- "18. The prosecution case is that both the deceased were fired at with a rifle .7 MM. The learned defence counsel while cross-examining the doctor and the eye-witnesses has created confusion as to whether the fire-arm injuries had been caused by a rifle or a .12 bore gun. Learned defence counsel has pointed out that the entry wound No,1 on the dead body of Abdul Rehman deceased had three exit wounds and the same was the position of injury No,3 which has also three exit wounds. Learned counsel is of the view that had Abdul Rehman deceased been fired at with a rifle, the entry wound of Abdul Rehman deceased would have only one corresponding exit wound. Presence of more than one exit wounds indicates that Abdul Rehman was fired at with a gun .12 bore. The point raised is of technical nature, therefore, it seems proper to seek guidance from the Book on this subject written by Modi an eminent writer. At page 225 of Mode's Text Book Medical Jurisprudence (Pakistan Edition), the author observed as under:- `The effects produced by small shot fired from a shot gun vary according to the distance of the weapon from the body, and choking device. A charge of small shot, fired very close to, or within a few inches of, the body enters in one mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greatly !Acetate and rupture the deeper tissues. Particles of unburned powder expelled from the weapon behind the missile are driven to some distance through the wound and some of them are found embedded in the wound and surrounding skin which is also signed and blackened by the flame and smoke of combustion. The exit wound of a close range shot shows greater damage of tissues than the entrance wound. The margins are averted, but there is no evidence of blackening or singeing. At a distance of one to three feet small shot makes a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enters as one mass but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wound is blackened, scorched and tattooed with unconsumed
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grains of powder. On the other hand, at a distance of six feet, the central aperture is surrounded by separate opening in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to ei ht inches in diameter but without causing blackening. Scorching or tattooing of the surrounding skin. This scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body. As the distance increases, the damage caused by a single pellet diminishes, until at about thirty feet, it is only capable of penetrating the clothes and the skin of the victim'." ' The learned Judges of the High Court were unduly swayed by the presence of 3 exit wounds corresponding to one entry wound on the person of deceased Abdur Rehman while concluding that the deceased was fired at by .12 bore gun and not by a rifle. We have already pointed out that the distance from where the deceased were fired at could not produce one single entry wound if the weapon used was a .12 bore gun as from such a long distance there would have been several entry wounds within an area of 5 to 8 inches without causing any blackening. The trial Court while examining this aspect of the case further observed as follows:- "Now I proceed to examine the entry and exit wounds of Abdul Rehman deceased with reference to the argument of the learned defence counsel and in the light of the expert opinion reproduced above. In the instant case the deceased were not hit from a close range. The post-mortem examiner did not notice any blackening, scorching and tattooing which leads to the conclusion that the deceased were fired at from a distance of more than three feet. The one entry wound of each fireshot without blackening, scorching and tattooing indicates that Abdul Rehman deceased was not fired at with a .12 bore gun. Had he been fired at with .12 bore gun, the pellets would have produced separate openings. I have minutely examined the exit wounds of Abdul Rehman deceased which are not in fact independent and separate as argued by the learned defence counsel. The exit wounds were intermingled and possibility of causing intermingled exit wounds with a rifle cannot be ruled out. Besides this I prefer to rely upon the ocular account given by the eye-witnesses, who are consistent on the point that Abdul Rehman was fired at with a .7 MM rifle." The above reasonings of the trial Court were not taken into consideration by the learned Judges of the High Court. We have examined the above reasonings given by the trial Court in the light of the evidence of the doctor and do not find any conflict between the two. The doctor in reply to a Court question stated in his evidence as follows:-- "Court Question:---If a bullet gets fragmented inside the body whether there is a possibility of multiple exit wound and a single entry wound? A. Yes." ' The above explanation of the doctor fully explained the existence of three intermingled exit wounds corresponding to one entry wound. Similarly, the reasoning of the learned Judges of High Court that Faqir Bakhsh deceased was not hurt although he was sitting behind Abdul Rehman on the pillion, who was killed by the fireshot which 'passed through his body, is only conjectural. Firstly, the evidence on record shows that the bullet after entering the body of the deceased Abdul Rehman had probably fragmented which caused three intermingled exit wounds. Thus, the effectiveness of the bullet which though passed through the body of the deceased was lost after fragmentation. Secondly, the deceased Abdul Rehman and Faqir Bakhsh were not static targets who would not move after they were fired at. As a natural instinct after Abdul Rehman was fired at by the respondent, the deceased Faqir Bakhsh who was sitting behind him must have moved a little in different direction to save himself, and therefore, the possibility that the bullet which passed through the body of Abdul Rehman after fragmentation, did not hit him, could not be ruled out. The
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last reason assigned by the learned Judges of the High Court for acquitting the respondent in the case was as follows:- "13. The only piece of evidence on the basis of which the trial Court convicted the appellant is that the crime empty found at the spot matched with the, gun recovered at his instance. This most important piece of evidence has been demolished by the admission of the Investigating Officer, that neither he had taken into possession any bullet from the spot, nor sent the same to Forensic Science Laboratory for comparison. Muhammad Bakhsh (P.W.6) has also supported the I.O. That he did not notice any crime empty at the spot, even this is not mentioned in the F.I.R. Which was lodged promptly so no reliance can be placed upon this evidence." The above conclusions of the learned Judges of the High Court are based on a misreading of the evidence on record. The relevant part of the evidence of I.O. In this regard is as follows:-- "I know nothing about jacketed bullet. I had not taken into possession any jacketed bullet and nor sent the same to Forensic Science Laboratory for any comparison. Three bullet empties lying at the spot were taken into possession and were made into a sealed…
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