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Petitioner: MIR WAIS VS Respondent: BABU KHAN AND 2 Other
Court Name: Supreme Court of Pakistan Judge(s): Qaisar Khan, Sheikh Anwarul Haq, Muhammad Haleem Title: MIR WAIS vs BABU KHAN AND 2 Other Case No.: Criminal Appeal No. 102 of 1976 Date of Judgment:1977-07-08 Reported As: 1977 SCMR 422 Result: Appeal allowed
JUDGMENT
JUDGMENT MUHAMMAD HALEEM, J.-This appeal is by special leave of this Court ,against the judgment dated 15-11-1974 of a Division Beneh of the Lahore High Court by which the State appeal against the acquittal of the respondents was dismissed. The complainant Mir Wais, brother of Haji Nawab who was stated to have been killed, had filed the petition from which this appeal has arisen. The incident occurred at 7 .p, m. On 14-6-1968 in a lane in front of the shop of Mushtaq in village Shinkah within the jurisdiction of Polio Station Ha7ro, District Campbellpur. At that time the deceased went out of the Hujra to fetch a match box from the shop of Mushtaq when he saw the respondents at a little distance from there in the lane upon which he abused and reprimand--ed them as to why they had again come that way in spite of being told not to pass by his house and Hujra. The respondents thereupon reported that they had cone to avenge the previous day's insult. Hearing the commotion Mir Wais, Mansoor Khan, Hawas Khan and Fordil who were sitting in the Hujra came out and they saw the respondents taking out a clasp knife and a chhuree from their Dubs and striking the deceased. Sabu struck a Chhurree blow on the chest of Haji Nawab who ran towards the north whereafter Sajawal gave a knife blow on his buttock. The complainant and others attempted to apprehend them but they did not do so as they were themselves threatened and the respondents decamped from there. The deceased fell down at the place before mentioned. It was alleged that there was enmity between the parties on account of blood feud and it was, therefore, that when Babu passed by the Hujra at Digarwela on the previous day, the deceased abused and told him not to come that way. Ashraf Khan and Nawab Khan intervened and the quarrel was averted but the respondents avenged their vandetta by killing the deceased.
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Mir Wais lodged the report the same day at 8 p. m. From the spot blood stained earth was secured. The respondents were arrested on the 16th June, 1968. On the same day Babu led to the recovery of a blood stained Chhurree from a Toot bush which was taken into possession but the blood on it had disintegrated. At the trial prosecution examined Mir Wais, Mansoor Khan, Hawas Khan (P. W . 14 1, Fordil (P. W . 17) and Mushtaq Khan (P. W. 16) to furnish ocular testimony in the case. Evidence was also led of the production of the Chhurree by Babu who denied his participation in the crime while Sajawal pleaded alibi. The evidence in regard to the incident which occurred a day earlier was provided by Rezi Khan (h. W. 10) and Nawab Khan (P. W. 11.) The trial Court rejected the testimony of Mushtaq Khan as his name was not disclosed in the First Information Report. As for the other witnesses, the trial Court held that they were related to the deceased and inimical to--wards the respondents and, therefore, their evidence had to be scrutinized with care and caution and having evaluated their evidence, the trial Court reached the conclusion that their evidence is `not only contradictory with one another' but also in direct conflict with the version given in the First information Report which is said to have bean lodged without any toss of time. The trial Court also took note of the fact that even though the incident happened in the heart of the Abadi yet no independent person from any adjoining shop, house or Hujra was attracted to the spot and that the presence of the trail of blood was also not established. In regard to the incident which occurred a day earlier, the trial Court held that Ashraf who was alleged to have separated the parties was not examined and the trial Court, therefore drew a presump-- petition that if he had been produced at the trial, he would not have supported the prosecution case. As to the effect of the testimony of Nawab and Rozi Khan, nothing explicit was stated as to why their testimony was discarded. The trial Court further held that the ocular testimony in regard to the number of injuries caused to the deceased was in conflict with the medical evidence as only two were stated and four were noticed by the doctor, out of which one was with a blunt weapon. The trial Court also devoted a paragraph in the judgment in holding that tire incident was improbable for, it did not appeal to reason as to why two weavers would visit the Muhallah of their enemies who were Pathans as they were no match to them. The recovery of the Chhurree was also disbelieved on the ground that the place from where it was picked up was accessible to every body and that no respectable person of the locality was called to witness the recovery and those who witnessed it were inimically disposed towards the respondent. It further held that the Chhurree had no evidential value as the blood on it had disintegrated. Accordingly it gave benefit of doubt to the respondents and acquitted them by judgment dated 31-10-1969. On appeal the learned Judges held that the prosecution witnesses were related to the deceased and inimical towards the respondents and, therefore, it was a case where strong corroborative evidence of unimpeachable nature was needed to establish their participation. The evidence of Mushtaq which could have provided such corroboration was disbelieved because his name did not transpire in the First Information Report and also that he was related to the complainant party. The evidence of the production of the Chhurree was rejected not only on the ground that the recovery witnesses admitted their enmity but also because it was not proved to be stained with human blood. In the ultimate analysis the learned Judges held that in the absence of corroborative evidence it was not safe to convict the respondents. Leave to appeal was granted to consider the following points:- "Firstly, that the report was promptly lodged at the Police Station, four miles from the spot, within an hour of the occurrence; Secondly, that enmity being a double-edged weapon the respondents had a motive to attack the deceased which has not been disbelieved; Thirdly, that the number of injuries is reasonably commensurate with the number of the accused;
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Fourthly' medical evidence lend, full support to the prosecution version brought on the record at the earliest moment, and Lastly, that the mere non-mention in the F. I, R. Of Mushtaq (P. W.) who was a natural witness and his remote relationship with the com--plainant did not justify the rejection of his testimony particularly when the venue of the occurrence was close to his shop and the deceased fell in front of it. The points formulated can be dealt with together while evaluating the evidence. It transpires from the evidence of Mir Wais that his uncle Shahdad was murdered about 35 years back and the fathers of the two respondents who are cousins inter se were tried for that murder. Besides it also emerges from his evidence that there is political rivalry between the parties. It v as in this strain that the Courts below insisted that the ocular testimony should be corroborated by independent evidence as to the identity of the respondents. The Hujra of the deceased is in the same lane and is visible from the place where its door opens into the lane and is 14 paces from the place where the deceased was attacked. The distance being short, it mist have been that those sitting in the Hujra would have heard the commotion and the abuses and therefore, their appearance in the lane cannot be doubted. Having scrutinized the testimony of Mir Wais, I have found nothing to discredit his version. He has ascribed one blow each to Sabu and Sajawal buttock of the deceased which gets support from the on the chest and medical evidence. The dimensions of these two injuries are different and, therefore, they were as deposed, caused by two types of sharp-edged weapons. Necessarily, therefore, the number of participants get further assurance from, it. As to the third incised injury which is on the root of the left thumb, it is likely that it was caused while the deceased had raised his band to' ward off the blow and as such was hardly likely to be noticed. As to the' found on the deceased, it must have been caused in the scuffle with bruise four the fist before the arrival of the witnesses in the lane and, therefore, they, bad not deposed to it in the context of the prosecution case that the deceased had abused the respondents. The Courts below brushed aside the ocular testimony merely on the consideration that the number was not consistent with that found on the deceased without going further in depth as to the manner in which the deceased could have suffered them. The testimony of the other eye-witnesses, namely, Mansoor Khan and Hawas Khan and Fordil Khan is on the same footing. The trial Court in holding that the evidence of the witnesses was contradictory with one another had relied on two inconsistencies. The first was as to at what time they went out of the Hujra. In their evidence they stated that on hearing the abuses :>f the deceased they came out but in the First Information Report it was given out that it was only after they had heard the reply of the respondents that they went out: The second is that Hawas Khan failed to mention the presence of Mansoor Khan in the Hujra in his Police statement whereas Mansoor asserts his presence at the time of the incident. The first discrepancy is hardly of the consequence to merit consideration for the fact remains that the witnesses had come out before the actual assault with knives. As to the second inconsistency is is again of no value, for, the presence of Mansoor Khan is mentioned in the First Information Report, which was lodged within an hour of the incident and it matters not even if Hawas Khan had omitted to mention his presence in his 161, Cr. P. C. Statement. In all probability it was not a deliberate omission but a slip while giving out the facts. In his testimony he has stated about his licence. The other witnesses have also confirmed it. Accordingly, they are not of such name as to make the evidence of either Hawas Khan or Mansoor Khan incredible. As to the venue of the incident it can hardly be doubted, for blood-stained earth was secured from a place in front of the shop of Mushtaq Khan. Even if no independent witness was attracted to the spot, it did not mean that the incident bad not happened there or that the time of the incident was such that no independent witness could come on commotion. It is common knowledge that persons evade their civic duty to come forward to give evidence and, therefore, if none appeared from the vicinity,
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nothing turns on it but the learned trial Court laid undue emphasis on it to entertain a doubt as to the identity of the respondents. As to the version of the witnesses that there was a trail of blood which was not seen by the A. S. I., the trial Court has taken this circumstance as affecting the credibility of the eyewitnesses. It is in the evidence that the first blow was given on the chest whereupon the deceased ran and the second blow was given from behind on his buttock. In the intervening period which must have been a minute or so, it was not likely that the blood would have spurted out from the injury of the chest to an extent to fall all along the few paces the deceased was able to run. Accordingly, the presence or absence of the blood trail is hardly of any consequence and the witnesses cannot be held unreliable for this reason. The trial Court again wrongly held that the non-production of Ashraf Khan led to the drawing of the presumption that if produced he would not have supported the prosecution case. This was an erroneous conclusion for, one of the two witnesses, namely, Nawab Khan, was examined who had supported the prosecution case. The trial Court has not expressed its view on the merits of his testimony and that of Rozi Khan which establish the immediate motive for the crime. Lastly, in this connection the trial Court also laid emphasis on the fact that besides Mir Wais the others had not accompanied the deceased when he was taken in a truck to the Police Station. This is hardly a consideration to entertain doubt as to the presence of the others at the" time of the incident. It is a superficial consideration which has no bearing on the credibility of the witnesses. The rejection of the evidence of Mushtaq Khan also appears to me be wholly unjustified. He is a teenager and according to his testimony he `peeped out of the shop on bearing the commotion and saw the respondents escaping from there and the witnesses coming from the side of the Hujra, and that out of fear he closed the door and chained it from inside and went to his house through the connecting door. Inthese circumstances it was not possible for the eye-witnesses to have known that he had also seen the respondents escaping from there. Therefore, if his name did not transpire in the F. I. R. Or in their statements recorded by the Police, it was not an unusual feature. The fact, however, remains that he was a likely witness to have seen the incident for the deceased fell in front of his shop. It was, therefore, that he was examined on the next day. Being a teen-ager be must have been struck with fear and lie, therefore; avoided coming out of the house after the respondents had decamped. He has no enmity against the respondents and a mere distant relationship with the complainant party would not make him an interested witness. In the circumstances it cannot be said that he was motivated to falsely implicate the respondents. The trial Court, therefore, wrongly held that his presence was doubtful ignoring the fact that the incident occurred in front of his shop where he was likely to be. Lastly, the trial Court while rejecting the recovery of the knife held as under: "Again, coming to the recovery of Chhurree (P. 3), suffice it to say that the place of its recovery being accessible to every body, coupled with the circumstance that blood on it had disintegrated rather reflects on the prosecution story." It is in the evidence of the A. S. I. That Babu led to the` recovery of the knife from a Toot bush. Obviously it must have been inside the bush from where it was taken out. Therefore, he had the exclusive knowledge of the place where he had hidden it. Even if the bush was accessible to, other; that factor by itself is hardly sufficient to render the recovery valueless for, it was then for Babu to explain as to how lie had acquired knowledge of the knife having been place inside the bush. In its absence such consideration is conjectural and has no value. Even if the blood ore it had disintegrated that would not detract it from its evidential value. In Abdul Khalid v. State (PLD 1970 SC 166) it was held that; "Although the origin of the blood could not be determined as it had disintegrated, the recoveries of blood stained articles served to support the other evidence."
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Therefore the recovery of the knife gave support to the ocular testimony qua the participation of Babu. The trial Court held that the defects pointed out by it reflected on the prosecution case. In what manner it did so, I am unable to comprehend, for, if a knife was planted them it was likely that it would be smeared with fresh blood. Therefore, there was hardly any feature to doubt the bong fides of the recovery and the remarks of the trial Court appear to be without any justification. As to the recovery having been witnessed by witnesses who were inimical towards the respondents, even if that be so, still the testimony of the A. S. I. Cannot be rejected, for, he had no malice against the respondents and this Court has accepted the sole evidence of the investigating officer in several cases as sufficient to prove the recovery. The learned Judges upheld the findings of the trial Court more or less for the same reasons, without giving due weight to the special features in the case. The ocular testimony of Mir Wais, Mansoor Khan. Rawes Khan and Fordil Khan was corroborated by that of Mushtaq Khan who to all intent and purpose was a disinterested witness even though he was related. The learned Judges brushed it aside not only for the reason that his name did not transpire in the First Information Report or the statements of the witnesses, recorded under section 161, Cr. P. C. But also because he was related to the complainant party which conclusion was wholly unjustified in the context of what I have discussed above. Besides, the participation of Babu was further supported by the recovery of the crime weapon at his instance, It is a case where manifest injustice has resulted on account of unrea--sonable conclusions having been drawn by the trial Court and the learned Judges of the High Court as to the innocence of the respondents. Accord--ingly, I would convict the respondents for the murder of Haji Nawab under section 302 read with 34, P. P. C. As to the sentence it was a premeditated attack on the deceased and committed with vengeance, but there is a distinction as it was the knife blow caused by Babu Khan which proved fatal. I would, accordingly, sentence him to death and direct that he shall be hanged by his neck till he be dead. I also order that he should pay Rs. 1000 as compensation to the heirs of the deceased under section 544-A, Cr. P. C. Or in default to suffer rigorous imprisonment for six months. As for Sajawal, the ends of justice will be met if he is sentenced to transportation for life and also to pay a fine of Rs. 1,000 or in default, to suffer rigorous imprisonment for six months, which I order. MUHAMMAD HALEEM, J-I agree. QAISAR KHAN, J.-After going through the judgment proposed by my learned brother Muhammad Haleem, J. To be delivered in this case, it is with respect that I have to state that I do not find myself in agreement with it. I, therefore, proceed to record my own judgment. The facts of the case need not be reiterated as these have already been given in detail by my learned brother in his proposed judgment. I, therefore, straight away proceed with the discussion of the case. PLD 1951 FC 107) has been held that before an order of acquittal is reversed it must be shown that the order was unreasonable or manifestly wrong and that if two conclusions were equally possible then the order of acquittal is not to be reversed. PLD 1964 SC 422 it has been held that if a case rests wholly on the direct evidence of the witnesses then benefit of every doubt is to be given to the accused and if the trial Court on a fair reading of the evidence has formulated grounds of doubt which are neither perverse nor wholly unreasonable then it is very risky to reverse the findings of acquittal. The prosecution evidence in this case consists of the following pieces:- (i) The ocular testimony of Mir Wais P. W. 12, Mansoor Khan P. W. 13, Hawas Khan P. W. 14, Fordil P. W. 15 and Mushtaq Khan P. W. 16. (ii) The recovery of blood-stained dagger at the instance of Babu accused deposed to by Khan Baz P. W. 8, Afsar Khan P. W. 9 and Muhammad Shafi A. S. L, P. W. 17.
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(iii) The immediate motive for the offence deposed to by Rozi Khan P. W. 10 and Nawab Khan P. W. 11. (iv) Medical evidence. Sometimes in 1970 one Meera Khan was murdered for which the fathers of the two accused were charged. This is evident from Exh. D. Q. On file. Jehan Dad brother of Rozi Khan P. W. 10 was ocular witness that case Meera Khan belonged to the family of the deceased as can be gathered from the statement of Rozi Khan P. W. One Nasiruddin a first cousin of the fathers of the two accused was murdered some 30 years back for which Rozi Khan P. W. 10, his brother Shahdad along with Yaqoob, Ayub and others were charged but acquitted. Soon after the aforesaid murder Shahdad brother of Rozi Khan P. W. 10 as murdered for which fathers of the two accused along with others were charged but they too were acquitted- The parties were thus on very much inimical terms with one and another and this fact has been admitted by the parties. Out of the ocular witnesses Mir Wais P. W. 12 is the brother of the deceased. Mansoor Khan P. W. 13 is the first cousin of the deceased. So far as Hawas Khan P. W. 14 is concerned his first cousin fist. Zeenat is the wife of Yunis a first cousin of the decease! And a son of Shahdad who was murdered and for whose murder the fathers of the accused were charged. Mst. Zojan the daughter of his paternal aunt is the widow of the said Shahdad and in the fight in which Shahdad was murdered iris uncle Gulab was also injured, His wife and that of Dalawar son of Nadar are sisters and this Nadar along with Rozi Khan and others was charged for the murder of Nasiruddin. The sister of Fordil P. W. 15 namely Mgt. Meraj Bibi is the wife of Mansoor Khan P. W. First cousin of the deceased. The father of Mushtaq Khan P. W. 16 was the first cousin of Yaqoob son of Muhammad who was charged along with Rozi Khan and others for the murder of Nasiruddin mentioned above. All the P. Ws. Were, therefore, very much interested and it was not safe to place reliance on their statements without independent corroboration as held by the trial Court and the High Court. The story put forth by the P. Ws. On the face of it does not stand to reason. Any body a little conversant with the Hujra system of the Pathans could not think of a story in which two persons whether weavers or Pathans armed only with a knife and dagger could think of forcing their way by the Hujra of their enemies with whom they had blood feuds. Such a thing is unheard of. If the two accused had come to force their way and had then been abused by the accused as alleged by the prosecution it does not stand to reason that each one would have caused only one injury to the deceased and then passed over him without giving him more blows. It is in the prosecution evidence that the deceased after he was injured ran towards the north and the accused passed by him after he had fallen. Besides how on earth could the accused know th4Lt they would be meeting the deceased alone in the lane and how could for that matter they know that the deceased would be sitting in the Hujra and then all alone. The two accused could not think of attacking the Hujra of the deceased with a knife and dagger where the possibility of a number of persons sitting armed was always there. It also does not stand to reason that if five close relations of the deceased had been present at the time of the occurrence they would have done nothing and kept standing quietly watching the drama. They had blood fueds and some of them must naturally have been armed or at least they could have pelted stones at the accused. The site plan proved by the statements of Allah Rakha P. W. 4 and the A, S. I. Shows that there were two other Hujras of Said Akbar and Ghulam Akbar which was nearer to the place of occurrence than tie Hujra of the deceased but it is very strange that no body from these Hujras witnessed the occurrence. The site plan further shows that a little to the north of the place where the deceased fell is a lane which leads to the house of the accused. It appears that the deceased and his attacker most probably met near this lane tr3 chance when the deceased was stabbed after some altercation and that he fell at No. 3 after going for some distance towards his Hujra. The story of the accused coming to the Hujra of the deceased for attacking the deceased clearly appears to be a made up story. Now if
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the occurrence had taken place near this lane then the P. Ws. Even if they had been present in their Hujra could not have heard the talk between the deceased and his attacker as they were inside the Hujra more than 50 yards away. If the P. Ws. Had witnessed the occurrence in the manner alleged by them that they would certainly have explained the other two injuries found on the person of the deceased. At least some one of the them must have noticed the wading of a blow by the accused and the manner in which the bruise was caused to him. All the P. Ws. Have however deposed to only one blow given by each of the accused to the deceased. The accused were corning from the north as alleged while the deceased was going from the south and the question of the deceased running from south to north after being stable as alleged by the P. Ws, could not arise. Under these circumstances the statements of these P. Ws. Do not inspire confidence at all. I now proceed to deal with the corroboratory pieces of evidence to see if these could be taken as independent corroboratory pieces of evidence. The immediate motive for the offence given by the…
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