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Petitioner: STATE VS Respondent: ABDUL FATTAH AND ANOTHER
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Syed Sajjad Ali Shah Title: STATE vs ABDUL FATTAH AND ANOTHER Case No.: Criminal Acquittal Appeal No. 292 of 19 Date of Judgment:1981-12-12 Reported As: 1982 P Cr. L J 781 Result: Appeal allowed
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J.-This acquittal appeal is filed against the Judgment dated 24th May, 1977 of learned IInd Additional Sessions Judge, Larkana whereby he has acquitted respondents namely Abdul Fatah and Abdul Latif, who were tried by him for offence under section 302/34, P. P. C. Shortly stated prosecution case is that complainant Mohammad Yaqoob is father of deceased Mohammad Sadiq, eye-witnesses Arbab and Majan are sons of Haji Ahmed brother of complainant. Respondent Abdul Latif is son of respondent Abdul Fatah. Respondent Abdul Fatah is nephew of complainant Mohammad Yakub. Houses of complainant and all eye-witnesses are situate at one place with common courtyard. House of respondents is adjoining with the house of com--plainant with the partition of straws. Both parties reside in village Kando Burdi, deh Kalar taluka Kamber. Respondents suspected that deceased Mohammad Sadiq was having an affair with Mst. Umra, wife of respondent Abdul Latif. On the night of incident, i.e. 26th August, 1974 after about mid-night complainant and the eye-witnesses named above heard cries of Mohammad Sadiq coming from the house of respondents as such they rushed there. P. W. Arbab had a torch with him and he flashed that torch, in the light whereof they saw respondent Abdul Fatah giving blows with "bundi" (piece of wooden log used for fire) and respondent Abdul Latif giving hatchet blows with sharp side to Mohammad Sadiq, who became injured and fell down. Witnesses challenged respondents not to kill whereupon respondents warned witnesses not to come near as they are killing their "Karo". Due to fear witnesses could not interfere and the respondents after giving injuries to Mohammad Sadiq went away inside the house with their weapons. Witnesses went near and found Mohammad Sadiq having died due -to injuries. They waited near the dead body and in the morning complainant went to police station Kamber, which was situate at a
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distance of 5 miles and lodged report. S. H. O. Mohammad Azam after registering F. I. R. Inspected scene of offence which was pointed out by the complainant. Vardat was situate in the house of respondents and dead body of Mohammad Sadiq was lying in the courtyard near the latrine, S. H. O. Secured blood-stained earth and put it into a sealed parcel. He prepared mashirnama of scene of offence and inquest report and then sent the dead body to the hospital for post-mortem examination. He examined witnesses Arbab and Majan. He arrested both the respondents and while in custody respondent Abdul Latif led to his house and produced blood-stained hatchet lying underneath a cot. Respondent Abdul Fatah produced blood-stained wooden log. Both these blood-stained articles were put into sealed parcels. P. A. Arbab produced a torch which was also secured. S. H. O. Made inquiries from other persons including Mst. Umra. He got recorded statements of witnesses under section 164, Cr. P. C. Before Civil Judge and F. C. M. And after completion of other formalities presented challan in the Court. Prosecution has examined 6 witnesses before the trial Court in support of its case, P. W. 2 Mohammad Yaqoob complainant and P. W. 3 Arbab have been examined as eye-witnesses of the incident. They have fully supported the prosecution case. P. W. 4 Faqir Mohammad mash it has attested mashirnama of wardat Exh. 11, inquest report Exh. 12, mashir--namas of securing torch Exb. 13, arrest of respondents Exh. 14, recovery of hatchet Exh. 15 and recovery of piece of wooden log Exh. 16. This mashir did not support prosecution case before the trial Court and was declared hostile. Co-mashie Ghulam Umar was summoned in the trial Court to be examined but he was also given up by A. P. P. On the ground that he had been won over and was not prepared to support prosecution case. P. W. 5 Ali Gohar tapedar prepared and produced in the trial Court sketch of wardat Exh. 19. P. W. 1 Khair Mohammad constable and P. W. Mohammad Azim S. H. O. Have been examined as corpse-bearer and Investigating Officer respectively. Deposition of Dr. Nanikram recorded before the committing Court was transferred to the file of Sessions under section 509, Cr. P. C. According to the doctor be conducted post-mortem examination on the dead body on 26th August, 1974 and found three incised wound on face and four bruises out of which one was on the head, second on the face and two on each band. Injury No. 4 which was bruise 6" X 5" fracturing right parietal frontal and temporal bones into pieces was found to be sufficient individually to cause death in the ordinary course. Prosecution has produced report of Chemical Examiner Exh. 22 which is to the effect that earth, hatchet and wooden log were found to be stained with human blood. Respondent Abdul Fatah in his statement uder section 342, Cr. P. C. Before the trial Court denied prosecution allegations as such and stated that on the night of incident he was sleeping in his house when at mid--night he woke up on the sound of some one walking. He challenged that person, who attacked him with hatchet, which he missed luckily due to darkness. Respondent Abdul Fatah further stated that in his self-defence he caused hatchet injuries with sharp as well as blunt side to that man. He could not see whether his blows were effective or not due to darkness. Afterwards father of deceased and other relatives came there and it was found that deceased was Mohammad Sadiq. Respondent' Abdul Fatah further stated that he informed the relatives of the deceased' all the details as to how Mohammad Sadiq got killed but they were annoyed and after long deliberations a false ease was filed against him and his son Abdul Latif who was not present at the time of incident. Respon--dent Abdul Latif before the trial Court denied prosecution allegations and claimed that he was not present at the time of incident and further adopted statement of his father. Respondents did not examine any witness in defence. At the very outset before discussing merits, it would be pertinent to point out that Mr. Mohammad Hayat Junejo Advocate for respondents had submitted that scope of interference in acquittal appeal under section 417, Cr. P. C. Is limited and narrower than in appeal from conviction and
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referred us to the guidelines laid down by Privy Council in the case of Sheo Swarup and others (AIR 1934 P C 227). The relevant portion from the judgment in that case is reproduced as under:- "Sections 417, 418 and 423 of the Code give to the High Court full power to reviewat large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated, in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses ; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial ; (3) the right of the accused to the benefit of any doubt ; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witness. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice." Principles in the shape of guidelines enunciated in the decision mentioned above have been consistently followed by superior Courts in Pakistan and these principles have been re-affirmed in the case of Mohammad Afsar v. Crown (P D 1954 FC 170). There is admittedly no cavil with proposition that these principles are to be considered by the High Court in acquittal appeal but they do not impose any limitation on the powers of the High Court to examine the merits of the case in order to find out whether trial Court has done its duty in appraising the evidence as required under law. In the case of the Crown v. Sultan Mahmud and 9 others (PLD 1955 FC 20) with relevant portion at page 22, it is held that no restriction is placed upon the High Court's power in either case to examine all the facts and circumstances as well as entire evidence, either in appeal or revision for the purpose of reaching the findings necessary for disposal of the case. In the case of Farid v. Aslam and 4 others (PD 1977 S) it is held that Supreme Court must give due weight to findings of Courts below and normally it should not interfere when satisfied as to their reasonableness and not being arrived at by disregard of any accepted principle regarding appreciation of evidence and mere fact of Supreme Court's might possibly taking a different view of evidence is not sufficient to overrule such findings. Grounds on which High Court acted if, however, now found supportable on record, or decision on a question of fact turned upon any admissible or faulty reading of evidence, or departure made from due procedure in reception of evidence or otherwise calculated to interfere with due or safe dispensa--tion of justice, interference by the Supreme Court would be justified and necessary. In the instant case we find that the trial Judge has not evaluated evidence produced by prosecution in a proper manner. He has not assigned satisfactory reasons for his refusal to rely upon evidence of the two eye-witnesses. So far appraisal of ocular testimony is concerned, it is duty of the trial Court to analyase ocular evidence in order to find out whether the eye-witnesses are natural, independent, interested, have seen the incident and have given truthful version of the incident as it took place. Evidence of eye-witnesses including examination-in-chief and cross- examination is to be subjected to scrutiny by the trial Judge in order to find out answers for the questions mentioned above. The trial Court must have answers separately on each point in order to come to a finding whether ocular testimony is to be believed or not or is such that requires further corroboration. In the instant case it appears from the judgment of the trial Judge that he has made a sweeping remark that no reliance could be placed upon these eye-witnesses for the reason that they had made undesirable improvements in their story, which cast doubt on their entire veracity. Improvements made by these eye-witnesses have been high--lighted and on scrutiny it has been found that these improvements are limited to one fact only, i.e. Both the eye- witnesses in the trial Court have stated that deceased used to be called by respondents in their
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house at night for a chit chat and on the night of incident also deceased was called by them for kutchery. Subsequently after both these witnesses went to sleep they were awakened by cries and went and saw the incident. Complainant Mohammad Yaqoob was confronted -with F. I. R. Where he had not specifically stated about the deceased being called in their house by respondents at night for chit chat or for that matter even on the night of incident. The other eye-witness P. W. 3 Arbab also has not stated so in his statements recorded under sections 161 and 164, Cr. P. C. This is the only improvement made by the eye-witnesses in their evidence, which is spotlighted by the learned trial Judge to come to the conclusion that there is a serious doubt on the entire veracity of these eye-witnesses on account of this improvement and no reliance would be safely placed on their version. On the other hand we think that this solitary reason is grossly insufficient to discard ocular testimony as a whole. Even it is admitted that improvement as stated above has been made by the eye-witnesses in the trial Court, then it is obvious that this improvement A pertains to the story of motive only and does not falsify the fact that these witnesses have seen the incident. The witness P: W. 2 Mohammad Yaqoob complainant is father of deceased and the other eye- witness P. W. ,3 Arbab is nephew of complainant and cousin of deceased. It is in the evidence that houses of Mohammad Yaqoob and Arbab have common courtyard and the house of respondents adjoins house of complainant with a partition .Of straws. It is so stated specifically in mashirnama of wardat Exh. 11 on the record. It is thus obvious that both these eye-witnesses are natural eye- witnesses and could be attracted to the spot on cries. Eye-witnesses and respondents are related inter se. Respondent Abdul Fatah is nephew of complainant as such these eye--witnesses could go in the house of the respondents to see the incident. Both the eye-witnesses have deposed before the trial Court with regard to the actual facts of the incident that while sleeping in their houses they heard cries of deceased Mohammad Sadiq coming from house of respondents and rushed there. Majan, brother of Arbab also went with them. P. W. Arbab had a torch which he flashed in the house of respondents and all the three eye-witnesses saw the incident as it took place and saw both the respondents in process of giving blows to Mohammad Sadiq. Respondent Abdul Fatah was giving blows with log wood and Abdul Latif was giving blows with sharp side of the hatchet. This version is not challenged in the cross-examination of the 2 eye-witnesses examined before the trial Court. Presence of the eye--witnesses at the spot at the time of incident is not specifically challenged. It is also not challenged that the witnesses saw incident in the light of torch. On the other hand plea of defence raised by respondent Abdul Fatah that he woke up and finding a stranger attacked him while exercising right of private defence has been put to the eye-witnesses in their cross- examination before the trial Court to suggestive form. This clearly indicates that presence of the eye-witnesses at the spot is not at all challenged by the defence. It also appears from the impugned judgment that the learned trial Judge was impressed by the arguments raised on behalf of the respondents in the trial Court that there was delay in filing of F. I. R. On the other hand record shows that complainant has stated in F. I. R. That he and the other eye- witnesses waited near the dead body and in the morning after leaving Arbab and Majan near the dead body he came to the police station and lodged report which was registered at 8-15 a. m. The distance between the Police station and the spot is five miles. It is not the case of the prosecution that complainant left the spot immediately after the incident to lodge the- F. I. R. There is clear cut explanation given by the complainant that he left for police station in the morning. It is also in the evidence that the night of incident was pitch-dark and the incident was seen in the light of torch. No question has been put to the complainant in his cross-examination before the trial Court as to why he did not go to the police station immediately after the incident. Moreover there is absolutely no background of enmity between the parties. The complainant, deceased and eye-witnesses on one hand and respondents on the other are inter-related. In the circum--stances there appears to be no motivation whatsoever for the complainant party to falsely implicate the respondents. It is
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also indisputable that incident took place in the house of the respondents and dead body of Muhammad Sadiq was found in the house of respondents by the Investi--gating Officer and blood-stained earth was also recovered from the house of the respondents. Since incident was seen by the eye-witnesses and assailants were also seen and identified by the eye-witnesses, particularly when there is no background of enmity between the parties, explanation of complainant that he went to the police station in the morning is understandable and in the circumstances there appears to be no justifica--tion in presuming that delay in going to the police station was used to manipulate the case and implicate the respondents falsely. Another, important factor, which needs consideration is that if eye--witnesses had not seen the incident, why would they say that respondent Abdul Fatah gave blows to the deceased with a log wood and respondent Abdul Latif with sharp side of the hatchet. In the ordinary course if the witnesses had found the dead body in the morning and on seeing the injuries reported the matter to the police, they would not have been able to name specifically log wood as a crime weapon because normally lathi is used for causing injuries found on the dead body and declared or thought to have been caused by blunt weapon. Version of the eye--witnesses is fully supported by the medical evidence of the doctor and post-mortem report that there were 3 incised wounds and 4 bruises out of which one was on the head causing fracture of right parietal frontal and, temporal bone into pieces and the other on the face causing fracture of the bone into pieces. The other two bruises were each on left and right band. Medical evidence also shows that as stated in post- mortem report stomach of the deceased contained semi-digested food material in small quantity, which again shows that incident took place a couple of hours after the last meal was taken and the assertion of the eye-witnesses that incident took place at mid-night is correct. Dr. Manikram has deposed before the Court that on 26th August, 1974 he started post--mortem examination at 12-00 noon and finished the same at 1-00 p. m. According to doctor time that elapsed between death and post-mortem examination was about 12 hours. This takes the time of incident to about 12 in the night. On this point also version of the eye-witnesses that incident took place at about mid-night stands confirmed. So far circumstantial evidence of the recovery of crime weapons is concerned, S. H. O. Muhammad Azam bas deposed before the trial Court that after registration of F. I. R. He came the scene of offence prepared mashirnama of wardat, inquest report, sent the dead body to the hospital and examined witnesses Arbab and Majan. On the same day he arrested both the respondents from their house in presence of mashirs. Respondent Abdul Latif while in custody led to his house and produced a blood-stained hatchet from underneath the cot. He put the hatchet into a sealed parcel. Respondent Abdul Fatah while in custody produced a wooden log which was bloodstained and, put into a sealed parcel. Report of Chemical Examiner Exh. 22 on the record shows that earth, hatchet with handle and wooden log were found to be stained with human blood. Mashir Faqir Muhammad, who attested mashirnamas mentioned above did not support the prosecution case before the trial Court and was declared hostile. Prosecution summoned co-mashir Ghulam Umar but he was also not examined by A. P. P. On the ground that he was also won over by the respondents. In this context the trial Court has held that report of Chemical Examiner produced by S. H. O. With positive finding cannot be relied upon for the reason that version of S. H. O. On the point of re--covery of blood-stained weapons has not been corroborated by any of the two mashirs out of whom Faqir Muhammad has been examined (but 'not supported) and the other mashir though summoned but was not examined and given up. It is crystal clear that trial Court has mislead evidence on this point and has not applied correct procedure for its appraisal. As stated above mashir Faqir Muhammad was declared hostile and co-mashir Ghulam Umar was summoned but was given up by A. P. P. For the reason that he too was won over. Such application made by A. P. P. Is on the record as Exh. 20. In such circumstances it is surpris--ing why the trial Court has not
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considered evidence of the Investigating Officer who is also as good a witness as any other. There is nothing against the Investigating Officer and there is no allegation or suggestion that he has been dishonest in the conduct of investigation. He bad chosen both mashirs from the locality and if the mashirs had been won over by the respondents, the law does not prohibit consideration of testimony of Investigating Officer on the point of recovery. We have read the cross--examination of the Investigating Officer recorded by the trial Court and we do not find in it any suggestion or allegation that he was inimical to the respondents or was mixed up with the complainant party. Only one suggestion was made to him that respondent Abdul Fatah did not produce log wood stained with blood and he picked up the same from near the dead body which he has denied. The other suggestion made to Investigating Officer in his cross-examination is that respondent Abdul Latif produced hatchet belonging to his father respondent Abdul Fatah. This suggestion is also denied. These suggestions which have been denied are not sufficient to discard evidence of Investigating Officer particularly when we find nothing in his evidence to suggest that either he has bungled the investigation or is motivated against the respondents to implicate them falsely and also the fact that in this case the complainant and the eye-witnesses, who are relatives of the res- -pondents, also have no background of enmity with respondents to falsely implicate them. 1n such circumstances we propose to rely upon the evidence of Investigating Officer on the point of recovery of incriminat--ing articles, which is to be treated at par with evidence of any other mashir. Investigating Officer is a competent witness to prove the recoveries and his reliability as such witness cannot be doubted merely because he has investigated the case. Reliance .Is placed on the case of Hussain v. The State (PLD 1977 Kar. 514). Now we come to the plea of private defence taken up by respcndent Abdul Fatah who is father of respondent Abdul Latif. Respondent Abdul Fatah has admitted in his statement under section 342, Cr. P. C. Before the trial Court that be caused injuries to the deceased. He has excluded participation of his son Abdul Latif in the incident by saying that Abdul Latif was not present at the time of incident. He has further stated that on the night of incident he was sleeping in the courtyard of his house when at mid-night he woke up on the sound of someone walking. He challenged the person, who suddenly attacked him with a hatchet, which be luckily missed due to darkness. In his self-defence he caused hatchet injuries with sharp side as well as blunt side of the hatchet to that man. He could not see whether his blows were effective or not due to darkness. Afterwards, father of deceased and other relatives came and they all saw that the person who had entered his house at mid-night was deceased Muhammad Sadiq. Respondent Abdul Fatah proceeded further to say that he informed relatives of the deceased about the details how the incident occurred unintentionally and in his self-defence. Relatives of the deceased were annoyed and after long hours of deliberation amongst themselves filed a false case against him and his son Abdul Latif who was not present at the time of incident. Three things stand out clearly in the statement of respondent as stated above ; firstly that respondent does not say in his statement that he snatched the hatchet of the deceased and with it caused injuries to the deceased. Secondly, respondent admits presence of complainant and other relatives of the deceased at the spot immediately after the incident. Thirdly respondent also admits that complainant and other witnesses remained there at the spot for hours and deliberated among themselves and then a false case was filed against him and his son. This last fact confirms assertion of complainant that he remained at the wardat near the dead body along with witnesses and in the morning went to police station for report. Respondent Abdul Fatah has asserted that he was attacked by deceased in the first instance with hatchet but he missed blows in the darkness and remained uninjured. It was argued on behalf of the respondents that he snatched hatchet from the deceased with which he gave blows to the deceased with sharp and blunt side. Again in his own statement respondent was not sure whether blows bit the deceased or not as according to him due to darkness he could
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not see whether the blows were effective or not. It is impossible to believe such a claim of respondent to be truthful that he gave blows to another in…
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