Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE VS Respondent: HUSSAINHonorable Justice SALAHUDDIN AHMADTafazzal Ali,A. T. M. Masud
1969 P
1969 P Cr. L J 1398
[Dacca]
Before Salahuddin Ahmad and T. H. Khan, JJ
THE STATE
Versus
HUSSAIN AND OTHERS‑Condemned‑Prisoners
Death Reference No. 7 and Criminal Appeal No. 146 of 1969, decided on 22nd July 1969.
Penal Code (XLV of 1860), S. 302‑Murder‑Testimony of interested witnesses corroborated by statements of independent and disinterested witnesses‑Such interested witnesses named in F. I. R. and no opportunity afforded to them to act in collusion against accused‑Names of accused and details of occurrence communicated by such interested witnesses immediately after occurrence to other witnesses‑Delay, if any, in lodging F. I. R. of no consequence in circumstances‑Prosecution case, held, proved beyond any reasonable doubt.
Tafazzal Ali, Abdul Hussain and Mohitur Rahman Choudhury, for Condemned‑Prisoners (Appellants).
A. T. M. Masud, Deputy Legal Remembrancer and A. T. M. Afzal for the State.
Dates of hearing : 26th, 27th, 30th June and 1st July 1969.
JUDGMENT
SALAHUDDIN AHMAD, J.‑This is a Reference by Mr. Azimud din Ahmed, Additional Sessions Judge, Mymensingh under section 374 of the Code of Criminal Procedure for confirmation of sentence of death passed upon three persons, namely, Hossain, Joynal and Abut Hussain who have been convicted under section 302/34 of the Pakistan Penal Code.
These three condemned prisoners along with two other persons Amjad and Afazuddin have also preferred an appeal from the order of conviction and sentences, passed upon them.
Appellants Amjad and Afazuddin have been convicted under section 302/109 of the Pakistan Penal Code and each of them, has been sentenced to transportation for life. Both the Reference and the appeal have been heard together and they are stow being disposed of under one judgment.
The prosecution case may be stated as follows:‑
Within Police Station Nalitabari in the district of Mymensingh there is a village called Kawakuri. Three miles to the east of the village there is a bazar known as Dharail Bazar. The way to the Bazar from Kawakuri village lies through a road called Darail‑Nalitabari road which runs up to a ferry `ghat' and then from the other end of the ghat it runs straight to the east to a place called Dharail. On crossing the river one comes across village Darabanui which is under Naluaghat Police Station. On Saturday 6‑7‑68 corresponding to 22nd Asar, 1375 B. S. which was the 10th day of the moon about Asar tithe one Hakkusk, resident of Kavakuri village left for Dharail Bazar for marketing with a bag and a bottle. Having finished his marketing at the Bazar be along with his brother P. W. 1 Zahid Ali and two other co‑villagers namely, P. W. 3 Abid Ali and P. W. 4 Hamid Ali left for Kawakuri between 7 and 8‑30 p.m. It was a moonlit night. The four persons were returning home through the said Dharail‑Nalitabari road and as they approached a place to the east of a breach that was on the road and were about 1 miles off from the house of Hakku they noticed some people in the `Dhan khet' (paddy field) lying to the north of the road. All of a sudden these people stood up and came to the road and they were recognised by P. Ws. 1, 3 and 4 as Hussain, Joynal, Abul Hussain, Afazuddin and Amjad (all the five appellants before us). All these persons were armed with `falas' Hussain was the first among them to come forward and give a `fala' blow to Hakku who ran to the south pursued by Hussain, Joynal and Abut Hussain, and finally fell in the `Dhan‑khet' to the south of the road. Abdul Hossain and Joynal also struck Hakku with their `falas' and Hossain, too, gave further `fala' blows. As the three eye‑witnesses attempted to go to the rescue of Hakku, Amjad and Afazuddin stood in their way with their falas' and prevented the witnesses from approaching the victim. These three witnesses raised alarm which brought to the scene P. W. 5 Shahabuddin, P. W. 8 Amez Ali Fakir and P. W. 9 Tofail Ahmed. The assailants fled towards the north. Hakku died on the spot and his bag which contained articles like chillis, bananas and ginger fell on the road by the side of the `Dhan‑khet'. The three eye‑witnesses narrated the occurrence including the names of the assailants of Hakku to the persons who arrived at the place of occurrence. These witnesses along with some others guarded the dead‑body throughout the night and on the following day P. W. 1 Zahid Ali went to the Naluaghat Police Station 10/12 miles off from the place of occurrence having crossed two rivers on the way and lodged a first information report. As a motive for the occurrence, prosecution has stated that P. W. 10 Khirjan, wife of the deceased who had come to the Kawakuri from India as a refugee along with her children was given about four acres of land by the Chairman of the local Union Council. P. W. Khirjan was a widow at the time and both the condemned prisoners Joynal and Abul Hussain wanted to marry her but she refused. P. W. Khirjan had started a case against all the three condemned prisoners for abducting her. (This case ended in acquittal during the pendency of the present trial before the Court of Session). Subsequently P. W. Khirjan married Hakku (deceased) and another criminal case was started against the three condemned prisoners for criminal trespass and for demolishing of her hut. This case too was pending at the time of the trial of the present case. It is stated that Hakku used to do `tadbir' of this case. Upon these allegation the three condemned prisoners were charged under section 302/34 of the Pakistan Penal Code and the other two persons Amjad and Afazuddin were charged under section 302/109 of the Code and they were ultimately tried and convicted and sentenced by the Additional Sessions Judge of Mymensingh as mentioned above disagreeing with the majority opinion of the Assessors in favour of the prisoners. Out of the three Assessors who constituted the Court along with the Judge, two of them had expressed their opinion that none of the persons was guilty of the charge framed against them and only one of them found all of them guilty of the charge framed against them.
All the prisoners pleaded not guilty to the charges framed against them and they disputed the place and manner of occurrence. It was suggested on their behalf that none of the three eye‑witnesses saw the occurrence. It was also suggested that P. W. 14 Iman Ali had enmity with the accused persons on account of land dispute and that in a case brought by deceased Hakku against Iman Ali the accused persons supported Hakku and that P. W. Khirjan was recovered from P. W. Iman Ali's house due to such assistance. Furthermore it was alleged that as a result of all these P. W. Iman Ali harboured a grudge against the accused persons and consequently he concocted this false case. It has been suggested further that Hakku was a man of questionable background and was an accused in a paddy theft case.
Appearing on behalf of all the prisoners the learned Advocate Mr. Tafazzal Ali has put before us two broad contentions.
He has contended in the first place that the prosecution case has not been proved by reliable evidence. Mr. Tafazzal Ali has next contended that the delay in lodging the first information report considered in the light of the suggestions of enmity between P. W. Iman Ali and the prisoner seriously affected the truth of the prosecution case.
Mr. Tafazzal Ali has not disputed the fact that Hakku died as a result of the injuries received by him on the date of occurrence. The evidence on this point is ample and sufficient. Not only the three eye‑witnesses of occurrence but a number of other witnesses who were attracted to the scene of occurrence as well as the medical evidence furnished by P. W. 2 and the evidence of the investigating officer P. W. 16 have proved beyond any reasonable doubt that Hakku died as a result of the injuries received by him on the date of occurrence. The medical evidence shows that there were no less than eleven incised injuries on different parts of the body of Hakku including one incised stab wound 2 " x 1 " x chest cavity deep in front and the right side of the chest, one incised stab wound 1 " x 1" x chest cavity deep " below the aforesaid injury, three incised stab wounds each 1 x 1" x chest and abdominal cavity deep on the left side of the chest and abdomen and one incised stab wound 2 " x 1" x abdominal cavity deep in the back of the left lumber region. On dissection the medical officer found cut the soft tissues of the chest third, fourth and fifth coastal cartilages on the right side and the body of sternum. Pericardium, right verticle of the heart, both lungs, peritonium, diaphram and liver were found perforated and two pounds of decomposed blood was found in the thoracic and abdominal cavities. In the opinion of the doctor all the injuries could have been caused by a `fala' and each one of the injuries we have just mentioned was sufficient in the ordinary course of nature to cause death. The doctor was further of opinion that death was due to shock and haemorrhage as a result of the injuries found upon the body and they were ante‑mortem and homicidal in nature.
As regards the first contention of Mr. Tafazzal Ali the prosecution case rests upon the evidence of three eye‑witnesses, namely, P. Ws. 1, 3 and 4 and the evidence of corroboration furnished by three other witnesses, namely, P. Ws. 5, 8 and 9. Among the eye‑witnesses P. W. 1 is the brother of the deceased. P. W. 3 appears to be very distantly related to Iman Ali inasmuch as the latter has married the niece of one Bondar a `chacha' of P. W. 3, P. W. 4 Hamed Ali has stated that the younger brother of Iman Ali has married a niece of P. W. 4. P. W. 14 has stated in cross‑examination that P. W. 7 Zahid Ali is his cousin. We do not think that the relationship of P. Ws. 3 and 4 with P. W. 1 and the deceased is of much consequence. All these three eye witnesses have consistently supported the prosecution case in regard to the time, place and manner of occurrence and their evidence that they accompanied the deceased Hakku on their return journey to Kawakuri have not been challenged by the defence. The evidence of P. W. 1 has been criticised with regard to certain omissions in the statements he made in the first information report. It appears from the first information report that P. W. 1 stated there as one of the causes of delay in lodging the report that he came to the police station in a rainy weather. In cross‑examination the witness stated: "Not a fact that I stated in the F. I. R. that on account of rain and storm I was delayed in lodging the `ejahar'." The underlining[Here in italics] is ours. It may have been noticed that the witness never spoke about storm in the first information report. Again he in his evidence stated : "Not a fact that I did not state in the `ejahar' that Joynal intended to marry Khirjan." A reference to the first information report shows that he stated there that accused Hossain Ali wanted to marry Khirjan. In his examination‑in‑chief the witness stated that both Hossain and Joynal wanted to marry her. Again in his evidence before the Court, P. W. 1 has stated as one of the motive for the crime that Hakku slid tadbir' in the trespass case, but the witness did not mention this as one of the motive in the first information report. And lastly the witness did not mention the names of P. W. 9 Tofail Ahmed and P. W. 15 Subed Ali as witnesses in the first information report although in his evidence he has mentioned them as such. We do not think these omissions or inconsistency are of any consequence. The story as given by P. W. 1 in Court is substantially and materially the same as he gave in the first information report. We shall hereafter deal with the question of the alleged delay in lodging the first information report. P. W. 1 has stated that the articles purchased by the deceased had fallen in the 'dhan‑khet' by the side of the road. A reference to the seizure list and to the evidence of the investigating officer P. W. 16 shows that these articles were received from the road twelve cubits off the dead body found lying to the north. The seizure list Exh. 2 at page 63 of the paper‑book has re-mentioned against item No. 2 "Road and its surroundings". The road appears from the evidence to be about eight to ten cubits and the `dhar‑khet' is adjacent to the road. We, therefore, find no material discrepancy. P. W. 1 has also been cross‑examined with reference to his evidence before the committing Court and his answer appear at page 11 of the paper book. Suffice it to say that none of the alleged inconsistencies either affects the prosecution case or the credibility of the witness. The witness has also categorically denied that the occurrence did not take place in the manner stated by him or that the three eye‑witnesses did not see the occurrence or that the occurrence was at a different place. The witness has also denied that Iman Ali had any enmity with the accused on account of land dispute or that Hakku brought any case against Iman Ali in which the accused had supported Hakku or that they had brought a false case against the accused persons as tutored by I ,pan all. In support of the alleged enmity between Iman Ali and Hakku Exh. A appearing at page 70 of the paper‑book was put in in course of the examination of the accused person under section 342 of the Code of Criminal Procedure. This paper, however, shows on: Habsjuddin as a complainant and there is no evidence or even a suggestion that Habejuddin and deceased Hakku were the same persons. P. W. 1 has also denied that Hakku was a man of questionable background or that he was made an accused in a theft case.
P. W. 3 has also not been shaken in his cross‑examination although he was cross‑examined with reference to his statements before the investigating officer and before the committing Court. The relevant answers of the witness appear at page 17 of the paper‑book. We do not think that this witness too has in any way been discredited or his evidence affected by the alleged omissions or inconsistent statements, none of which is on a material point. The witness has denied the fact that he never went to the market on that date and that he did not see the occurrence and that he was stating falsehood as tutored by Iman Ali. The witness has also denied that Iman Ali concocted this case on account of the enmity with accused. The witness has, however, admitted that about 5/7 years ago there were land disputes between Iman Ali and the accused over which there were several cases. P. W. 4 Hamid Ali has also denied the fact that he was not present at the time of occurrence and that he was deposing falsehood as tutored by Iman Ali. The witness, however, admitted that lie once appeared in a Sessions trial as a witness in a case against accused Joynal, Abul and Hossain, This case, however, ended ire acquittal, and the occurrence had taken place about two years before this murder. Among the three eye‑witnesses he is the only witness against whom the defence might say that the witness has had reason to falsely implicate the three accused persons. We shall, however, presently see that his evidence as well as the evidence of the other eye‑witnesses has received support from independent and disinterested witnesses against whom hardly any reason has been suggested as to why they should be disbelieved.
All the three eye‑witnesses have been named in the first information report and we find in the facts and circumstances of the case that there was little opportunity for these witnesses to act in collusion against the five prisoners all of whom have been mentioned in the first information report.
All that the defence has succeeded is to show the existence of some ill‑feeling between P. W. Iman Ali and the accused persons. There is, however, no evidence of and no reason for any collusion between P. W. Iman Ali and the three eye‑witnesses. It seems absurd that on account of some ill‑feeling between P. W. Iman Ali and deceased Hakku and the accused persons, P. W. 1 brother of Hakku himself should collude with Ills brother's enemy, namely, P. W. Iman Ali so as to falsely implicate the accused persons, particularly when P. W. 1 himself has no reason whatsoever to falsely implicate them.
We now come to the next batch of witnesses, namely, P. Ws. 5, 8 and 9. These witnesses have not only proved the time and place of occurrence but have also furnished ample corroboration of the fact that the eye‑witnesses on the spot told them about the manner of occurrence as well as the names of the miscreants. The names of P. W., 5 and 8 have been mentioned in the first information report and the fact that they were present at the place of occurrence on the date of occurrence and at the relevant time have been proved by P. Ws. 1, 3, 4 and 9 so far as P. W. 5 is concerned, and P. W. 1, 3, 4, 5, and 9 so far as P. Wm 8 is concerned. Similarly presence of P. W. 9 has been proved by P. Ws. 1, 3, 4, 5, and 8. The mere fact that the name of P. W. 9 does not find mention in the first information report does not in our opinion in the fact and circumstances of the case affect either the credibility of the witness or the veracity of his evidence. Each one of these three witnesses is an independent and disinterested witness and they all come from village Darabanni where the occurrence took place. The only suggestion given to these three witnesses for deposing against the prisoners is the recovery of the dead body from near their houses and the threat by the police. P. W. 5 has stated:‑"Not a fact that I am deposing falsely on account of fear since the dead body was found near my house." The evidence shows that the house of P. W. 5 is 500 yards from the place of occurrence.
P. W. 8 has similarly stated:‑"Not a fact that I and any nephew Hanifa were threatened with arrest and that it is on that account that I am deposing falsely." It appears from the evidence of the witness that his house is 500/600 yard, to the south‑east of the place of occurrence.
P. W. 9 has stated:‑"Not a fact that the police threatened us since it was in our area that the murder had taken place and that it is on that account that I am deposing falsely." The place of occurrence is 400/500 yards to the north of the house of this witness. P. W. 16 the investigating officer was not put any such suggestion and it is, therefore, difficult to believe that these three witnesses would falsely depose against the prisoner for no other reason than the dead body was found at a distance of about 500 yards from their house. P. Ws. 5 and 8 did not even know the three eye‑witnesses or the deceased before the occurrence. We, therefore, find absolutely no reason to dis believe P. Ws. 5, 8 and 9. All these three witnesses have stated in their evidence that when they went to the place of occurrence, on hearing an alarm they were immediately told the names of all the five prisoners as the persons responsible for the death of Hakku. There is, however, some discrepancy as to what they heard about the individual act of the different prisoners: While P. W. 5 said that he learnt from P. W. 1 that prisoner Hossain had assaulted the deceased and the other four prisoner kept the eye‑witnesses from proceeding to the deceased. P. W. 1 has also proved that he saw all the three eye‑witnesses present at the place of occurrence. P. W. 8 has stated that P. W. 1 told him that prisoners Joynal, Hossain and Afazuddin assaulted the deceased with `falas' and in the lower Court the witness had also stated that Abul Hossain and Amjad were among the assailants. The said statement of the witness before the committing Court was put to him in course of his examination-in‑chief before the Sessions Court. P. W. 9, however, stated that P. W. 1 had told him the names of all the five prisoners as the persons responsible for the murder of Hakku. The witness has added that he was told that three of the prisoners had assaulted the deceased with falas' and the remaining two kept the three eye‑witnesses under restraint with `falas'. Both P. Ws. 8 and 9 have also proved the presence of the three eye‑witnesses at the place of occurrence. The result of the evidence of P. Ws. 5, 8 and 9 is that the three eye‑witnesses had spoken about the manner of occurrence and had named the five prisoners as the persons responsible for the death of Hakku immediately after the occurrence without having had any time for collusion or concoction. That being so the delay, if any, in lodging the first information report is of no consequence. P. Ws. 5, 8 and 9 also proved the veracity of the three eye‑witnesses thus enabling the Court to fully rely upon the evidence of the eye‑witnesses safely.
As regards the recognition of the five prisoners a reference to the almanac shows that it, was the 10th day of the moon and the eye‑witnesses have stated that it was a moonlit night at the time of the occurrence. To none of these witnesses was it even suggested that the night was dark and it was not possible for any one of them to recognise the assailants. In this connec tion it should be noted that all the five prisoners come from the same village Kawakuri and are well‑known to the three eye witnesses. That being so we have no doubt whatsoever that there was ample means of recognition and that the prisoners were in fact recognised by the eye‑witnesses. The evidence of P. W. 13 was tendered and cross‑examined to the effect that there was rainfall on the night of occurrence for about an hour after sunset accompanied by storm and that moonlight was not visible when be ran to the place of occurrence and that he took a lantern with him. This does not, in our opinion, affect the evidence furnished on the point not only by the three eye witnesses but also the three corroborating witnesses, namely, P. Ws. 5, 8 and 9. On reference to the records it appears that these statements of P. W. 13 might have been made to oblige the defence.
The mere fact that the medical evidence shows that some of the incised injuries found upon the body of Hakku were cut injuries cannot support the contention of Mr. Tafazzal Ali that some weapons other than fala' were also used in course of the occurrence. It has not been suggested to any witness that there vas any other weapon other titan `fala' in the hands of the assailants. Thu medical evidence is clear that ail the injuries found upon the body of the deceased could have been caused by falas'. In this context Mr. Tafazzal Ali has also contended that in the absence of any fala' having been produced nobody had any idea about a fala' and therefore, it could not have been stated with any amount of certainty that all the injuries were the result of blows by `falas'. It appears from the evidence that everybody understood what a `fala' was and nobody ever cared to put any question to any one of the eye‑witnesses to ascertain the description of the `fala'. A `fala' is used in that part of the country and the witness has come from the locality and the lawyers and the Assessors and the learned Judge all apparently knew what A `fala' was and nobody had any doubt about its nature. Even the doctor P. W. 2 was never asked that any one of the injuries could be the result of a weapon other than a `fala'. In these circumstances we do not find any substance in these contentions of Mr. Tafazzal Ali.
As regards the motive suggested by the prosecution the only thing that need be said about this is that the motive has been amply proved not only by the evidence of P. Ws. 1 and 10, but also by the suggestions given to the witnesses on behalf of the defence. P. W. 10 Khirjan is the widow of deceased Hakku and she has stated that both Joynal and Hossain wanted to marry her but she refused. The evidence also shows that Hossain, Joynal and Abul were concerned in an abduction case drought by P. W. 10 and that there were two other cases started by her, one under section 107, Criminal Procedure Code and the other a case of criminal trespass in which Joynal and some others were concerned. There is also clear evidence to show that deceased Hakku used to do `tadbir' in some of these cases sin behalf of P. W. 10. Some of the statements about motive also received support froth the suggestions put to the witnesses and we, therefore, hold that the persecution has succeeded in proving the motive for the murder beyond any reasonable doubt. The mere fact that the informant P. W. 1 has mentioned in the first information report only one of the several matters, namely, that Hossain wanted to marry P. W. 10 does not affect the evidence in regard to the motive deposed to not only by P. W. 1 but also other witnesses.
Mr. Tafazzal Ali has also criticised the manner in which the prisoners were examined under section 342 of the Code of Criminal Procedure. We agree with him when he says that so many things should not have been put all…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.