Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ILLAH1 BUX VS Respondent: THE STATEHonorable Justice ANWARUL HAQA. K. Brohi,Manzoor Hussain
1968 P Cr
1968 P Cr. L J 1123
[Karachi]
Before A. S. Faruqui and Anwarul Haque, JJ
ILLAH1 BUX AND ANOTHER-Appellants
Versus
THE STATE-Respondent
Criminal Appeal No. 47 of 1967 and Confirmation Case No. 18 of 1967, decided on 16th February 1968.
(a) Witness-Evidence of partisan or interested witness-When may be relied upon without corroboration and when and what kind of corroboration would be necessary as a rule of prudence.
Niaz v. The State P L D 1960 S C 387; Nazir and others v. The State P L D 1962 S C 269 and Wastiullah v. Mirza All and others P L D 1963 S C 25 ref.
(b) Evidence-Evidence of partisan character-Veracity to be tested in light of inherent circumstances of case-Such evidence cannot be rejected merely on account of minor stupidities or incon sistencies.
Niaz v. The Stage P L D 1960 S C 387; Nazir and others v. The State P L D 1962 S C 269 and Wastiullah v. Mirza Ali and others P L D 1963 S C 25 rel.
(c) Penal Code (XLV of 1860), S. 302 read with S. 34- Constructive liability-Not to be inferred unless indications and circumstances justify such inference-Doubt regarding existence of common interaction between accused to murder deceased-Benefit of doubt to go to accused.
(d) Penal Code (XLV of 1860), S. 302-Murder--Sentence- Cold-blooded murder, calling for normal penalty of death-Trial Court awarding sentence of transportation for life--State or complainant not moving for enhancement of sentence-Sentence not changed.
A. K. Brohi for Appellants.
Manzoor Hussain for the State.
Dates of hearing: 13th and 14th February 1968.
JUDGMENT
ANWARUL HAQ, J.-Illahi Bux and his two sons Bangul Khan and Rahim Bux were tried by the learned Additional Sessions Judge, Jacobabad, on charges falling under section 302 read with section 34 of the Pakistan Penal Code and section 13(d) of the West Pakistan Arms Act. Rahim Bus was acquitted by being given the benefit of doubt, whereas Illahi Bux and Bangui Khan have been convicted on both the counts. On the charge of murder, Illahi Bux has been sentenced to transportation for life, whereas Bangui Khan has been sentenced to death; and on the charge under section 13(A) of the Arms Act, each of them has been sentenced to undergo rigorous imprisonment for one year. The convicts have appealed and the case is also before us for confirmation of the death sentence awarded to Bangui Khan.
2. Muhammad Moosa (P. W. 3) who is a son of the deceased Raza Muhammad, has filed Criminal Revision No. 151 of 1967, praying that the acquittal of Rahim Bux be set aside and he be retried on the charge of murder. After the filing of this revision petition, the State has also filed Criminal Acquittal Appeal No. 224 of 1967 against Rahim Bux, with the result that Muhammad Moosa's revision petition has become infructuous. The acquittal appeal filed by the State will also be disposed of by this judgment.
(3) The parties are Khosos by caste and are related to each other, the grandfather of tile deceased Raza Muhammad and the father of the appellant Illahi Bux being brothers. Raza Muhammad had taken up residence in a village named after him and established on his own land in the area of village Jahan girabad situated in the Taluka of Kundkot in District Jacobabad. It appears that the appellant Illahi Bux had also similarly set up a village after his own name at a distance of one and a half miles from the village of the deceased. For some years before the present occurrence, which took place on the 31st of July 1965, the relations between the parties had been far from cordial. It is common ground between the prosecution and the defence that there has been considerable criminal litigation between them or their henchmen and associates, and at least on one previous occasion the two appellants Illahi Bux and Bangui Khan along with others were accused of having made an attempt on the life of the deceased Raza Muhammad, although he escaped and only his mare was injured. The immediate cause of the trouble is stated to be a dispute over 276.36 acres of land belonging to one Mundhoo Khan and situated in Deh Jahan girabad. By a registered deed (Exh. 26) dated the 28th of April 1954 the deceased Raza Muhammad had taken this land on lease for a period of 20 years commencing from 1956-57 to 1975-76. The lease deed was, however, executed in the name of Raza Muhammad's son Muhammad Usman (P. W. 6) having a ten annas share, one Abdul Karim having two annas share and Shah Bux (P. W. 5) having a four annas share. It appears that the appellant Illahi Bux presented the action of the deceased in taking this large area on lease as, according to the allegations made by the deceased himself while appearing as a prosecution witness in the Sessions Court at Sukkur on the 13th of August 1959 in Sessions Case No. 19 of 1959 relating to the attempt on his own life and the murder of his nephews Rehmat Ullah and Sahib Khan, he was interested in setting this land in exchange for his own land situated elsewhere, but at that time the exchange was not allowed by the Collector. Subsequently, however, the appellant Illahi Bux acting as a General Attorney of one Wahid Bux Shaikh, who has been described as his business partner, succeeded in getting this land in exchange for other land which also nominally stood in the name of Wahid Bux Shaikh; but the deceased Raza Muhammad refused to part with possession of the land during the currency of his 20 years' lease. According to the prosecution the dispute between the appellant Illahi Bux and the deceased Raza Muhammad was then referred by the parties to Ghulam Muhammad (P. W: 7) who is a Nekmard of the Khoso community and lives at kundhkot. He gave an. award, three or four years before the present occurrence, to the effect that the appellant Illahi Bux should sell the leased land to the deceased for Rs. 27,000, out of which Rs. 14,000 should be paid immediately and the balance of Rs. 13,000 should be paid when the mutation of sale is entered in the name of the deceased. It is stated that the award or Faisla of Ghulam Muhammad was accepted by the parties, and in partial com pliance thereof the deceased paid a sum of Rs. 14,000 to Illahi Bux. The latter demanded the payment of the remaining amount of Rs. 13,000 as well, but the deceased insisted on Illahi Bux first performing his part of the Faisla, namely, getting the mutation of sale entered in favour of the deceased before demanding the payment. As a result, the amount of Rs. 13,000, thus remained unpaid.
4. The prosecution alleges that on the morning of the 31st of July 1965, at about 9-00 a. m., the appellant Illahi Bux and his two sons Bangui Khan and Rahim Bux arrived in front of the otak of deceased Raza Muhammad armed with double-barrel guns. At that time the deceased was standing on the bullock cart track at a distance of 92 feet from his otak and was talking to his sons Muhammad Moosa (P. W. 3) and Abdul Rahim (P. W. 4) before leaving for his lands to supervise the transplantation of rice. Shah Bux (P. W. 5) was also present, having stopped at the otak on his way back from the village mosque. On arriving at the spot, the appellant Illahi Bux demanded the payment of Rs. 13,000 from the deceased, but the latter made the same old reply, namely, that he would pay the amount when Illahi Bux gets the land mutated in the name of the deceased. On hearing this reply, the appellant Illahi Bux is stated to have told the deceased that the amount had been long overdue from him and they were, therefore, not going to spare him, and saying so, he and Bangui Khan fired gun-shots at the deceased. The shot fired by Bangui Khan hit the deceased in the region of his chest while that fired by Illahi Bux hit him on his leg. Raza Muhammad fell down and died instantaneously on the spot. During the assault the acquitted accused Rahim Bux is stated to have kept a watch over Muhammad Moosa and the other two prosecution witnesses, threatening them with his gun in case they took any steps to save the deceased. After killing Raza Muhammad, the father and sons then escaped towards the east.
5. Leaving Abdul Rahim and Shah Bux with the dead body, Muhammad Moosa proceeded to report the matter to Tangwani Police Station; at a distance of eight miles from the soot. After his departure, his other brother Muhammad Usman (P. W. 6), who had gone out to his lands, returned home and was informed of the incident. by Abdul Rahim and Shah Bux who also gave him the names of the assailants. Similar infor mation was conveyed by these witnesses to two persons named Gullu and Abdul Karim who had also turned up at the spot after the event.
6. The first information report was recorded at l l-00 a. m. by S. H. O. Maqbool Ahmad (P. W. W) who immediately put in a telephonic massage to Kundhkot Police for arresting Bangu Khan: Consequently Bangul Khan was arrested the same day at Kundhkot at 12-30 p. m. Rahim Bux was arrested on the 5th of August 1965, but the appellant Illahi Bux could not be found by the Investigating Officer who accordingly submitted the challan in the absence of this accused. However, Illahi Bux surrendered himself in Court on the 27th of August 1965. At the instance of the acquitted accused Rahim Bux a licensed single-barrel gun was taken into possession, but according to the prosecution this gun was not used in the attack, which was launched with double-barrel guns.
7. On visiting the spot the investigating officer found that there was a pool of blood on the bullock cart track in front of the otak of the deceased. He recovered nine wads of cartridges of S. G. mate from the spot although no empties could be found. The relevant mashirnama in this behalf is Exh. 29 which has been proved on the record by the evidence of Amir Bux (P. W. 8) who acted as one of the mashirs.
8. The autopsy on the dead body of the deceased Raza Muhammad was conducted by Dr. Minhajuddin, the then Assistant Medical Officer at Bakhshapur. It appears that at the request of the defence an attempt was made to secure his presence at the trial but that could not be done as he had left for East Pakistan. As a result, his previous deposition recorded during the inquiry proceedings was, brought on the record. As the medical evidence has an important bearing on the case, it will be useful to reproduce here the details of the injuries noted on the deceased by this Doctor:
(1) A circular lacerated wound, 1/6' in diameter with un detectable depth, on the right side of the chest.
(2) A circular lacerated wound, 1/6' diameter, with un detectable depth, on the right side of the chest.
(3) A circular lacerated wound, 1/6' in diameter, with undetectable depth, on the centre of the chest.
(4) A circular, lacerated wound, 1/6" in diameter, with undetectable depth, on the centre of the chest, J' on the left side to injury No. 3, on the left border of the sternum.
(5) A circular lacerated wound, 1/6" diameter, with undetectable depth, on the lower part of the neck in front.
(6) A circular lacerated wound, 1/6" in diameter, on the right side of the neck, 1/2" above the collar bone.
(7) A circular lacerated wound 1/2 in diameter, on the right scapular region.
(8) A circular lacerated wound, 1/2" in diameter, on the right scapular region.
(9) A circular lacerated wound, " in diameter, on the right scapular region, on the middle border of the scapula.
(10) A circular lacerated wound, 1/2" in diameter, on the right scapular region on the upper part.
(11) A circular lacerated wound, 1/2" in diameter, on the centre of the back, in the thoracic region.
(12) A lacerated circular wound, 1/2" in diameter, on the centre of the back, in the thoracic region.
(13) A circular lacerated wound, 1/2" in diameter, on the right side of the chest back in the thoracic region near the inferior (lower) angle of the scapula.
(14) A lacerated wound with complete laceration of muscles and vessels with complete fracture of both tibia and fibula on the left leg, 1" above and ankle joint; fractured pieces of the bone were coming out.
9. The Doctor opined that the deceased died as a result of shock and haemorrhage due to injuries Nos, 1, 2, 3, 4, 5 and 14 which had been caused by a firearm like a gun. According to him, death must have been instantaneous and the interval between death and post-mortem examination was about 24 hours. In cross-examination during the inquiry he stated that the injuries found on the deceased were the result of at least two shots, which must have been fired from beyond six feet, and that although he had not mentioned the fact in his certificate Exh. 5-A, yet in his opinion the injuries on the back of the deceased were exit wounds. He further stated that the time between the death and post-mortem examination may be four hours more or less than that stated by him in Exh. 5-A. He also noticed that on internal examination the stomach was found to be empty, thus indicating that the deceased had not taken food shortly before he was shot dead.
10. All the accused pleaded not guilty at the trial, denying practically all the allegations made against them and alleging false implication on account of enmity resulting from previous litigation and matrimonial disputes. The appellants Illahi Bux and Bangul. Khan pleaded alibis. Illahi stated that he was an indoor patient in Hadi Bakhsh Hospital at Sukkur from 30th July to the 1st of August 1:965, and the appellant Bangui Khan stated that on the day of the incident he was at Kundhkot as he had to appear in the Court of the Mukhtiarkar and F. C. M. as a defence witness in a criminal cafe. Illahi Bux filed a lengthy written statement giving details of the previous litigation between the parties and also placed on record certified copies of various judgments and reports, etc., relating to this litigation It may be stated, however, that Illahi Bux had pleaded his alibi during the inquiry proceedings but did not rely upon it when questioned by the trial Judge under section 342, Criminal Procedure Code.
11. Bangui Khan examined two officials of the Court of the Mukhtiarkar and F. C. M. Kundhkot, namely, Muhammad Ayub (D. W. 1) and Khuda Bux (D. W. 2), in support of his alibi. The first named merely produced the record of the case in question, whereas Khuda Bux deposed to the physical presence of Bangui Khan at Kandhkot from 7-00 a.m. to 10-00 a. m. on the day of the occurrence, and also referred to certain entries in the judicial record in support of his statement. The learned trial Judge has, however, disbelieved Khuda Bux, and has even directed that Khuda Bux be called upon to show cause why he should not be prosecuted for perjury and forgery, ate.
12. The case for the prosecution rests almost entirely on the ocular evidence of the two sons of the deceased, namely Muhammad Moosa (P. W. 3) and Abdul Rahim (P. W. 4), supported by their step uncle Shah Bux (P. W. 5). Besides the ocular evidence, there are only two circumstances, which need to be mentioned. The first one is the fact that the appellant Illahi Bux was absconding until the 27th of August 1965, and the second is the fact that the alibis pleaded by the two appellants have been found to be false by the learned trial Judge. The effect and the evidentiary value of these circum stances will be considered by us later. The important question at this stage is whether in the circumstances of this case it would be safe to rely upon the ocular testimony of witnesses who are related to the deceased and who can clearly be described as interested witnesses in view of the history of previous relations between the parties. It is true that the learned trial Judge has expressed the opinion that after the Faisla given by Ghulam Muhammad (P. W. 7) the relations between the parties had been normalised and they were on speaking terms with each other as asserted by Muhammad Moosa, yet the fact remains that the terms of the Faisla had not been fully implemented by the parties, thus providing a constant source of friction between them. Viewed in the background of their previous relations, it could hardly be said that they were on cordial terms with each other.
13. The question as to when partisan or interested evidence may be relied upon without corroboration, and when and what kind of corroboration would be necessary as a rule of prudence has been frequently discussed by the superior Courts, and we can do no better than to refer to the principles laid down by the Supreme Court in the two well-known cases cited as Niaz v. The State (P L D1960 S C 387) and Nazir and others v. The State (PLD 1962 S C 269). The dictum in the first mentioned case was further explained and elaborated by their Lordships in the second case in which it was laid down that: -
"There cannot be an inflexible rule that the statement of an `interested' witness can never be accepted without corrobora tion. By what was said in Niaz v. The State it was not meant to lay down any rule of law though it explained for the guidance of Courts the Supreme Court's approach to the problem that generally confronts the Courts in cases of crime by violence. * * * * * * For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case, which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstances relied upon must have a bearing on this question.
In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing.
Circumstances corrobrating the eye-witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject- matter of the proceedings; (2) that the persons named as culprits were such as would be expected to join in the attack."
14. The same question once again came up for consi deration by their Lordships of the Supreme Court in Wasiullah v. Mirza Ali and others (1) and it was observed that the Supreme Court had granted the Special Leave to Appeal to consider the question whether, in view of the following factors, corroboration of the interested evidence was at all necessary
(1) that the eye-witnesses were all natural witnesses.
(2) that the results produced were commensurate with the number of persons charged.
(3) that there was visibility, and the trial Court had believed a number of the witnesses after seeing and hearing them, and
(4) that the feud had been dormant for 20 years.
However, on examination the learned Judges came to the conclusion that the case was not free from doubts of a general character, and after listing the circumstances creating these doubts, their Lordships went on to say that "when such be the case, and the main direct evidence be also that of interested persons, i.e. enemies of the persons charged, it-is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubts". It would be seen that the observations just quoted. were made in the context of the particular circumstances of Wasiullah's care and did not, in any manner, constitute a departure from the princi ples laid down in the case of Niaz and elaborated in the case of Nazir and others. On the' contrary, the factors to examine which special leave was granted fell fully within the purview of ,.hr dicta in the previous two cases.
15. After hearing the elaborate arguments presented by the Learned counsel for the appellants and examining the evidence at considerable length, we are of the view that this is a case there where are circumstances proved on the record which are suffi cient to satisfy the Court about the truthfulness of the testimony given by the partisan eye-witnesses against the appellants Illahi flux and Bangui Khan.
16. We first take up the question of motive. As already stated, the prosecution has alleged that the whole trouble had started on account of the fact that the deceased was in possession of certain land as a lessee for 20 years and was not willing to give up that possession even though the appellant Illahi Bux had succeeded in purchasing the land, nominally in the name of his business partner Wahid Bux Shaikh. The lease was executed in the year 1954 and in a previous criminal case, namely, Sessions Case No. 19 of 1959, the deceased Raza Muhammad had alleged that the attack on him and his two nephews was launched on account of the annoyance which Illahi Bus had felt at the deceased acquiring this land on lease. We may skip over the intermediary stages and come to the point of time when a compromise was reached between the parties owing to the arbitration award given by the Nekmard of their community, namely, Ghulam Muhammad (P. W. 7). It was strenuously contended before us by Mr. Brohi that Ghulam Muhammad was also a partisan witness and that no such Faisla was ever given by him. In fact the learned counsel for the appellants completely repudiated the prosecution allegation that in pursuance of the Faisla given by Ghulam Muhammad the deceased had already paid Rs. 14,000 to the appellant Illahi Bux and only an amount of Rs. 13,000 remained to be paid on Illahi Bux completing the necessary formalities with the Revenue authorities.
17. It is difficult to accept the contention of the learned counsel for the appellants that Ghulam Muhammad is a witness who is either interested, against or inimical towards Illahi Bux and his sons. This contention is based mainly on the fact that in Sessions Case No. 190 of 1964, State v. Illahi Bux and Bangui Khan besides several others, relating to the murder of a woman named Mst. Jindul and abduction of her daughter Mst. Menghul, Ghulam Muhammad had appeared as a prosecution witness to depose that one of the accused persons in that case, namely, Siddiq, had been brought before him along with the abducted girl Mst. Menghul and he had directed the persons concerned to take Siddiq and the girl to Tangwani Police Station and make a report there. In the judgment delivered the learned Additional Sessions Judge, Jacobabad, in that case a reference is made to the contention raised on behalf of Illahi Bux that Ghulam Muhammad was inimical towards him, but the learned trial Judge observed that this contention was not 4ibstantiated, and Ghulam Muhammad bad acted correctly as the Sardar and Nekmard of the tribe. Mr. Brohi pointed out that he was referring to the previous judgment not as containing an expression .of opinion binding on the Court in the present trial bait merely to prove a fact in issue, namely, that on a previous occasion as well Ghulam Muhammad had appeared as e a prosecution witness against the appellant Illahi Bux and Bangui Khan and he was accused of enmity even at that stage. It seems to us, however, that the argument is far-fetched for the reason that on the previous occasion Ghulam Muhammad merely appeared as a formal witness to depose that one of the co-accused of the present appellants had produced the abducted girl before him and he had given a direction that the matter be reported to the police. It is clear, therefore, that this is not a case where Ghulam Muhammad had already tried, successfully or unsuccessfully to falsely implicate the present appellants. In fact, he had said nothing against them on that occasion, and even at the present trial he has done his best to help the appellants in whatever way he could by making admissions favourable to them. We have no hesitation in holding that the evidence of Ghulam Muhammad to the effect that the land dispute between the parties was brought to him and he gave an arbitration award, represents the truth.
18. The evidence of Ghulam Muhammad stands fully supported by three documents Exhs. 32 to 34. The first docu ment is an application made to the Executive Engineer, Begari Canal, by Adam Khan, a son of the deceased Reza Muhammad, praying that permission may be granted to excavate a water course through the disputed land. This application is dated the 8th of April 1964. Exh. 33 contains objection put in by the appellant Illahi Bus signing as General Attorney of Wahid Bux. This document is dated the 16th of June 1964, and by means of Exh. 34 which is dated the 14th of July 1964 Illahi Bux withdrew these objections. It is the case of the prosecution that Illahi Bux withdrew his objections only when he has been paid Rs. 14,000 in pursuance of the Faisla given by Ghulam Muhammad. This statement was made at the trial by…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.