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Petitioner: KETAB ALI VS Respondent: THE STATE
Court Name: Dacca Judge(s): T. H. Khan, Salahuddin Ahmed Title: KETAB ALI vs THE STATE Case No.: Criminal Appeal No. 159 and Death Reference No. 8 of 1969 Date of Judgment:1969-07-23 Reported As: 1970 P Cr. L J 415 Result: Appeal partly allowed
JUDGMENT
JUDGMENT T. H. KHAN, J.-This is a reference under section 374 of the Criminal Procedure Code for confirmation of the sentence of death passed upon the condemned-prisoner Ketab Ali under section 302/34 of the Pakistan Penal Code, by the Additional Sessions Judge, Bakerganj. Two other co-accused were tried under section 302/34 of the Pakistan Penal Code who have been acquitted. There is also an appeal preferred by the condemned-prisoner from jail. Both the reference, and the appeal have been heard together and they are now disposed of under one judgment. The prosecution case, in brief, is that on Tuesday the 21st Chaitra, 1373 B. S. Corresponding to 4th April 1967 at about Asar prayer time deceased Hashem Gazi, husband of the com--plainant, P. W. 4 Fatema Khatun left home for Deotala Hat with an umbrella in hand and wearing a clay-coloured lungi and blue shirt for taking delivery of some gold ornaments which he had earlier, given to a goldsmith, P. W. 8 Bhabani Sankar for repair ate complainant waited for the return of her husband till late hours of the night and then fell asleep. Next morning she woke up and found that her husband still had not returned home and a cow was missing from their cow-shed. She then went out in search of her husband to her father's house which is situated close-by. She not having found her husband there, was proceeding towards the house of Anwar Member still in search of her husband. On her way there she met her step-brother Sohrab to whom she told that she was not finding her husband. She was then informed by him that a decapitated corpse was, found floating in the canal to the west of Deotala Hat, tied up with the trunk of banana trees. She rushed in there and found the decapitated corpse of her husband which she recognised and identified in presence of many curious spectators, not only from the known features but also from the old scar caused by an accident due to which the finger from the right foot of her husband was missing; that the
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familiar gold ring that was in .The finger of the dead body; that two hands of the corpse were tied up with the help of the shirt that belonged to her husband which lie was wearing at the time when he left for Deotala Hat and also from the fact that the feet of the corpse were tied with his own lungi. The corpse was bound to two trunks of banana trees. Many people were present and they also saw the decapitated dead body. The complainant P. W. 4 Fatema Khatun then went to the Bamna Police Station which is 10 miles off from Deotala Hat accom--panied by Choukidar Nurul Haque and lodged first information report, Exh. 8 at 5 p. m. On the 5th April 1967 which was recorded in the absence of the officer-in-charge, by A. K. M. Salimulla, Assistant Sub-Inspector of Police, Bamna Police Station, P. W. 11. Next day the A. S. I. Went to the locality and found the corpse of deceased Hashem Gazi in Deotala canal and held inquest over it on the identification of P. W. 4 and others. He then sent the headless body to Perojpur morgue for post-mortem examination through Constable Naair Ahmed, P. W. 2. Thereafter the Officer-in-Charge, Bamna Police Station, P. W. 14 took up the investigation of the case on 6-4-67 and arrested accused Ketab Ali on the same day, who then disclosed certain facts and conducted P. W. 14 to an open field near a tank. Many other people including P. W. 4 and the other witnesses accompanied the party. Accused Ketab Ali got down into the tank and brought out a severed human head wrapped in a piece of lungi. It was unwrapped on the bank of the tank by the accused himself and it was instantly recognised by P. W. 4 to be the head of her deceased husband Hashem Gazi. Besides the known features of his face, the head was identified since the deceased had an extra tooth between the two incisors (front teeth). Accused Ketab Ali then led P. W. 14, who was accompanied by the witnesses and others, to his house and showed a place on the bank of the canal where earth was recently dressed; two roots of banana trees with the trunks of which the decapitated body of Hashem Gazi was tied up, Exhs. 5 and 6. The accused Ketab Ali produced a spade. Exh. 2 and a mud-stained umbrella, Exh. 7 from his house. He then led the police and the witnesses to the house of one Moti and produced a dao. Exh. 3 and a leja Exh. 4 bringing out the same from the but of said Moti. P. W. 14 seized these alamats duly preparing seizure list in presence of the witnesses and obtained their signatures thereon. He also prepared sketch maps,-Exhs. 9, 10 and 11 with separate index. On completion of the investigation, P. W. 14 submitted charge-sheet on 8-8-67 against accused Ketab Ali, Asmat Ali and Chand Mallik, which was followed by a preliminary enquiry by the Magistrate, First Class, Perojpur, who, having found that a printu facie case existed against the accused persons under section 302/34 of the Pakistan Penal Code framed charge thereunder and committed them to the Court of Sessions to stand their trial. The condemned-prisoner and the two other co-accused (since acquitted) were charged under section 302/34 of the Pakistan Penal Code, before the Sessions Court, for committing the murder by intentionally causing the death of Hashem Gazi in furtherance of the common intention of them all. The defence took up the plea of-innocence of the accused. Further defence plea was that the dead body could not be identified or proved beyond doubt for lack of corroboration from the witnesses other than P. W. 4. It was contended by the defence that the body as well as the head were decomposed and they were not assembled together for effecting. Proper identification. The trial was held with the aid of four assessors who were unanimous in their opinion that tile condemned-prisoner Ketab Ali and the co-accused Asmat Ali were guilty of the charge levelled against them. The learned Additional Sessions Judge, however, agreed with the unanimous opinion of the assessors in respect of the condemned-prisoner Ketab Ali, but disagreed with the opinion of the assessors in respect of the accusedAsmat Ali and acquitted him of the charge, giving him the benefit of doubt. Three Assessors found co-accused Chand Mallik not guilty to the charge anti the other assessor gave him the benefit of doubt and the learned Additional Sessions Judge agreed with their opinion and acquitted him.
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Before us Mr. Nurul Haque Bhuiyan, appeared on behalf of the condemned-appellant. He has taken us through the entire evidence in this case and the judgment pronounced by the learned Additional Sessions Judge and has pressed the follow--ing points (a) That the identifications of the decapitated corpse and the head by P. W. 4 were not beyond reasonable doubt. (b) That the prosecution had illegally picked up P. Ws. 5 and 9, the two seizure list witnesses, who were not inhabitants of the locality; that P. W. 9 hailed from a different union and police station; that both P. Ws. 5 and 9 were made seizure list witnesses against the provisions of section 103 of the Criminal Procedure Code. (c) That the evidence of local P. Ws. And the 1. O. Should be disbelieved as highly suspicious. (d) That not a single witness named in the F. 1. R. Was examined in the case by the prosecution and no explanation was offered by the prosecution for their non-examination that the permanent residents of Deotala `Hat' near which the headless body was found were withheld without any explanation which was highly suspicious. (e) That the learned Additional Sessions Judge based his findings with respect to material points, on inadmissible evidence, contrary to the strict provisions of section 27 of the Evidence Act. (f) That in any view of the matter the conviction of the condemned-appellant under section 302/34, P. P. C. Is not tenable in law and similar grounds were also taken in the petition of appeal filed by the condemned-appellant from Jail. The prosecution has examined 14 witnesses including the formal witnesses. There is no eye-witness and the prosecution case rests on circumstantial evidence. We are, therefore, called upon to consider whether the circumstances as proved by the prosecution in this case are such as to be incompatible with the innocence of the condemned-prisoner. Having regard to the facts and circumstances of the case and the points urged by the learned Advocate for the appellant it will be convenient and to trace the evidence the circumstances in chronological order, as far as practicable, and in this approach the evidence of the complainant P. W. 4 Fatema Khatun called for consideration first. In her evidence the full outline of the prosecution case was narrated. She stated that her husband left home in the afternoon of 21 Chaitra, 1373 B. S. For Deotala Hat to bring some gold ornaments which he had earlier given to the goldsmith, P. W. 8 for repair. He had in his wearing a clay-coloured `lungi' and a blue shirt and an umbrella in hand when he left. Hashem Gazi had long hair hanging down as flocks. He had one extra tooth between the two incisors in the upper gum. The second finger from the right (third from left) of the right foot was accidentally cut away when he was working with a `khanta' (a digging instrument). He had a gold ring on the right finger of his left hand. She stated that she waited for her husband till late hours of the night, but her husband did not return and then she fell asleep. In the morning also he did not return and she went out in search of him and the first thing she noticed in the house was that a cow was missing from their cow-shed. She went to her father's house which is situated close-by, but her husband was not there and none could inform her about her husband's whereabouts. She then proceeded towards the house of Anwar Member in search of her husband and on her way she met her step-brother Sohrab. She told Sohrab that she was not finding her husband. At this Sohrab informed her that a dead body was floating in the canal near Deotala `Hat', tied up with a trunk of banana tree. She rushed in there and saw the decapitated dead body which she at once recognised as the dead body of her husband. Besides the known features, she recognised the dead body with reference to the special features namely, the second finger from the right of the right foot of her husband was missing and the ring was in his finger; his two hands were tied up with the help of his shirt and his feet were tied up with his `lungi' which he wore at the time of his departure for Deotala `Hat'. She also found the dead body tied up with the trunks of two banana trees. Many other people who were present there also saw the same. From there she went to Bamna Police Station which is 10 miles' offst
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from Deotala Hat, accompanied by the local Choukidar Nurul Haq and lodged the first information report which was recorded by the Assistant Sub-Inspector of Police attached to that Thana, P. W. 11. Next day, P. W. 11 went to Deotala Hat and found the dead body in the canal west to Deotala `hat' and held inquest over the headless dead body on the identification of P. W: 4 and others and sent the same to Perojpur morgue for post-mortem examination. Thereafter the Officer-in-Charge of Bamna Police Station, P. W. 14 took up the investigation of the case and reached Deotala flat on 6- 4-67 and arrested Ketab Ali, who disclosed certain facts and conducted P. W. 14 to an open field near a tank. P. W., 4 Fatema Khatun also accompanied the police party along with many others including some of the witnesses. Accused Ketab Ali then got down into the tank and brought out a severed--human head wrapped up in a piece of `lungi'. It was unwrapped on the bank of the tank by accused Ketab Ali himself and P. W4 instantly recognised the head to be the head of her husband. Her husband had an extra tooth between two incisors. Moreover, the feature of his face was well-known to her. After the discovery of the head from the said tank, Ketab Ali led the police party to Hatkhola and from Hatkhola to his-own house where he showed a place on the bank of the canal which was recently dressed and also produced a spade, Exh. 2 from his hut. He also showed the police party the stumps of the banana plants with the trunks of which the headless dead body of Hashem Gazi was tied up. He also produced the mud-stained umbrella, Exh. 7 from his but which was identified by P. W. 4 as the umbrella of her husband. He then led the police party to the house of one Moti and produced a `dao' and a `leja', Exhs. 3 and 4 bringing them out from the but of said Moti. P. W. 14 seized all these alainats duly preparing seizure lists in the presence of witnesses and obtained their signatures therein. As regards the motive for the murder, P. W. 4 stated that accused Ketab Ali wanted to marry the niece of her, husband but her hus--band opposed it. She further stated that her husband was a Matriculate and was a Primary School teacher. Defence could not shake her in cross-examination and no contradiction on any material fact could be brought out from tier by the defence. She admitted that after the murder of her husband, Malek Master evicted her from the homestead in which she used to live and that it belonged to Malek Master. She, however, denied the defence suggestion that Malek Master wanted to oust her husband from this homestead since long. She denied the defence suggestion that hey husband was in the habit of remaining away from the house frequently at night or that he had many enemies. The defence put in a portion of her statement before the Committing Court after compliance of the provisions of section 145 of the Evidence Act in which she stated that her husband was once convicted in a murder case. She, however, denied before the Sessions Court, having made such a statement before the Committing Court.This is not a contradiction on any material fact involved in the case and it does not affect her testimony in the least. She denied the defence suggestion that her husband uses to commit dacoity, in the course of which dome unknown persons killed him. She stoutly denied the defence suggestion that she was falsely deposing at the instance of P. Ws. Abdul Hashem, Mannan, Hye, Anwar and another person Malek.. It is significant to note that besides this vague suggestion defence could not establish or even suggest my relationship between P. W. 4 and any of the local witnesses. On a close scrutiny of her evidence, we find that she is a witness of truth and there is no infirmity whatsoever in her evidence. The identification of the decapitated corpse of deceased Hashem Gazi and the identification of his severed head by her as well as her narration of the circumstances under which the severed head was brought out from the tank and other alamats produced by the accused Ketab Ali are beyond any shadow of doubt and are absolutely convincing. P. W.4 has been amply corroborated on all important material points by P. Ws. 5, 7 and 9. P. W. 5 is an Ex-President of Deotala Union Board within Bamna Police Station. He knew both the deceased as well as the accused from before. In his, presence P. W. 14 arrested accused Ketab Ali and after
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arrest he disclosed certain facts and then led the police and the wit--nesses, besides ,many others, to a field near a tank. From the tank he brought out a human head covered with a `lungi' which lie himself opened and uncovered. P. W,. 5 asserted that the look of the head was fresh and he recognised it to be the head of Hashem Gazi, This witness also saw the headless body of Hashem Gazi tied up with the trunks of two banana trees, floating . In Deotala canal. He signed the seizure list, Exh. 1 and also proved his signature-therein, Exh. 1/1. He also accompanied the police party to the house of accused Ketab Ali where the latter produced a mud-stained umbrella and a spade which were seized by P. W. 14 by preparing the seizure list, Exh. 2, which was signed by him Exh. 2/1. This witness stated under an obvious confusion, that accused Ketab Ali produced a big `dao' from his but, but it appears from the' seizure list, Exh, 3 and his signature Exh. 3/1 that the `dao' was produced by Ketab Ali from the house of accused Asmat Ali. This witness also proved that accused Ketab Ali brought out a head of cattle -from the house of Moti which was seized under seizure list Exh. 4 which he signed, Exh. 4/1. He was also witness to the seizure lists, Exhs. 5, 6 and 7. On the basis of Exh. 5 `leja' Exh. 4 produced by accused Ketab Ali from the house of 1Nloti was seized. On the basis of Exhs. 6 and 7 two roots of banan;.r trees and a piece of rope were seized. He was a witness to 11 the seizure lists. He corroborated P. W. 4 who proved that the accused Ketab Ali took the party to a place where earth was very recently dresssed. He also stated that many people saw the floating dead body in the canal, as it was a `hot' day. He stated that inquest was held on Thursday, while the dead bode was found on Wednesday and that on Friday evening the severed head was produced by accused Ketab Alt from the tank. He corroborated P. W. 4 that deceased Hashem Gazi was a School teacher. In cross-examination this witness also could not be shaken-at all by the defence. He denied the suggestion that accused Ketab Ali was beaten and a statement was forced out of him. He also denied the vague suggestion that accused Ketab Ali was falsely implicated in the connivance of the police and that the seized articles were produced by those who had enmity with the accused and that the seizure list: were prepared in collusion with the police. He denied the suggestion that he was perjuring himself and asserted that he had no interest in this case and had nothing to gain by perjuring himself. He is aged about 60 years and an Ex-President of the Union Board. Nothing specific was suggested against this witness by the defence. Neither enmity of this witness with accused Ketab Ali nor his relationship with P. W. 4 could be established by the defence. From the record it appears that the defence could not put in any portion of his evidence before the Committing Court to show any contradiction or omission on any material point whatsoever and his testimony has been consistent and straightforward and he could not be shaken in any manner in his cross-examination. The learned Additional Sessions Judge has also noted that his demeanour as a witness was very convincing. P. W. 7 Abdul Mannan Matbar is an inhabitant of village Kumirmara and is a member of the local Tekikata Union Council, Police Station Mathbaria. Condemned-appellant Ketab Ali is also an inhabitant of said village Kumirmara, but it appears that the police station has been wrongly mentioned as Bamna (instead of Mathbaria) in his examination under section 342 of the Criminal Procedure Code. Police Station has, however been correctly mentioned in his examination under section 342, Criminal Procedure Code, before the Committing Court and also in the relevant seizure lists as well as in the deposition of the witnesses. P. W. 7 has corroborated P. Ws. 4 and 5 on material facts. He knew deceased Hashem Gazi from before and recognised the decapitated corpse of Hashem Gazi as the second finger from the right of the right foot was missing; from before. Accused Ketab Ali was arrested in his presence. The material Exhs. 1 to 8 were brought out or produced by accused Ketab Ali in his presence from different places. Hashem Gazi's severed head was also brought out by accused Ketab Ali from the tank in his presence. This evidence of P. W.7 remained completely unassailed, although the learned Additional Sessions Judge did not attach much importance to some other part of his evidence in so far as it related to the corroboration of P. Ws. 6, 12 and 13. He frankly admitted that he is brother
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of P. W. 10 and cousin of P. Ws. 6 and 12. This relationship does not affect his testimony, in the least inasmuch as no enmity between this witness and accused Ketab Ali could be established. Again no relationship between this witness and P. W. 4 Fatema Khatun could be established by the defence. On a consideration of his evidence we find that he is a witness of truth. P. W. 8 Bhabani Sankar, a goldsmith of Deotala Bazar, corroborated P. W. 4 on some material points. He stated that he knew deceased Hashem Gazi, who had given him some gold ornaments for repair. On 21st Chaitra, 1373 B. S. Hashem Gazi, accom--panied by two others, came to take delivery of the same .But as the gold ornaments were not ready, they could not be delivered on that date; Hashem Gaz and two others left together. He is a completely disinterested and independent witness and nothing could be established against him. P. W. 9 is a member of Tikikata Union Council, P. S. Mathbaria. He is also a seizure list witness. He has stated that accused Ketab Ali was arrested by the police in his presence and after arrest accused Ketab Ali disclosed certain facts and led the police party to a tank and he himself brought out the head of Hashem Gazi from the tank in his presence and in presence of others. The head was identified by P. W. 4. He has stated that Exhs. 2 to 8 were produced by accused Ketab Ali in his presence and they were seized by P. W. 14 under different seizure lists which were signed by him. He corroborated the fact that the accused Ketab Ali took the police party to a place and showed them a particular spot that was recently dressed. This witness also saw the headless corpse of Hashem Gazi and he was one of the persons who identified the same to the police. In cross-examination he stated that about 200/300 people were present when the accused produced the articles in presence of the police. He sought to prove that the articles which were seized, were produced by the accused Ketab Ali in his presence and that the headless body as well as the head were of deceased Hashem Gazi. The defend could not establish or even suggest any enmity between him and accused Ketab Ali nor any relationship between him and P, W. 4 , could be established. He is completely a disinterested Witness and there is no reason whatsoever to discard his testimony. Even the vague suggestion that was put to P. W. 5 to the effect that the articles were produced by the enemies of the accused and that the seizure lists were collusively prepared by the polite was not put to this witness. In our view he is a witness of truth. The evidence of P. Ws. 4, 5, 7 and 9 have been corroborated by P. W. 14, the investigating officer, who stated that Ketab Ali was arrested on 6-4-67 He made some disclosure and led him to a tank and brought out the head of Hashem Gazi wrapped up in a piece of `lungi' from the tank. He untied the ---lungi' cover and the head was identified by P. W. 4 Fatema Khatun. Then Ketab Ali led him to a place near his house and showed a place where earth was dressed recently. He produced a spade which P. W. 14 seized under seizure list Exh. 2. An umbrella was produced which was also seized by him by prepar--ing a seizure list. Accused Ketab Ali then led him to two other places near his house where he showed two roots of banana trees which were seized under two seizure lists. Accused Ketab Ali also produced a `dao' which was seized under seizure list. Exh. 3 and a `leja' from the but of co-accused Asmat Ali. P. W. 11, Assistant Sub-Inspector of Police stated that he recorded the first information report, Exh. 8 and hell local inquiry. He found the headless dead body in Deotalit 'khal' and held inquest over it on the identification of the same by P. W. 4, Fatema Khatun and others. He then sent the dead body to Perojpur morgue for post-mortem examination through Constable Nazir Ahmed, P. W. 2. P. W. 14 sent the head of the deceased for post-mortem examination, through Constable Barada Kanta Roy, P. W. 3. The defence allegations against P. W.14 are all baseless and unfounded. P. W. Dr. M. S. Ahmed, Choudhury, who was Sub-Divisional Medical Officer, Perojpur, at the relevant time held post-mortem examination on the headless dead body of Hashem Gazi on 7-4-67; he also help post-mortem examination on the severed head on 9-4-67 and he found as follows:- "Condition : Build average.Body highly decomposed. Wounds:
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(1) One incised wound 2" x 2" x -- " on the right side of chest. (2) One incised wound 2" x 1" x -- " on the right side of the chest one inch below the wound. (3) One incised wound 2" x 1 -- " x -- " on the left shoulder_joint (4) Two incised wounds 2" x 1" x -- " and 2" x -- " x -- "on the front of left thigh. (5) Three small incised wounds around the…
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