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Petitioner: BACHAL VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Hafeez Memon, Zaffar Hussain Mirza Title: BACHAL vs THE STATE Case No.: Criminal Appeal No. 289 of 1976 and Confirmation Case No. 3 of 1977 Date of Judgment:- Reported As: PLD 1978 Karachi 710 Result: Appeal allowed
JUDGMENT
JUDGMENT ABDUL HAFBEZ MEMON, J.-Appellant Bachal son of Rustom has been convicted by the learned Additional Sessions Judge, Sukkur, for offences under sections 302 and 3,)7, P. P. C., both read with section 34, P. P. C., and sentenced to death and a fine of Rs. 1,000 or in default R. I. For 3 months and R. I. For 7 years and a fine of Rs. 200 or in default R. 1. For one month more, respectively: In addition, he has also been convicted and sentenced to R. I. For one year under section 13-D of the Arms Ordinance. All the substantive sentences of imprisonment have been ordered to run concurrently if death sentence is not confirmed. He has appealed against his convictions and sentences and the matter is also before us for confirmation of the sentence of death. By this judgment we propose to dispose of both the appeal as well as the reference. 2. The incident in which deceased Abdul Razak lost his life while his friend complainant Ghulam Shabbir sustained injuries, is alleged to have taken place in the hotel of one Ghulam A.I Burin near Rohri Cement Factory on 7-9-1973 at 6-30 p.m. F. I. R. Relating to the incident was lodged by com-- plainant Ghulam Shabbir at 7 p.m. The same evening at Rohri Police Station, 1 -- miles away and it reads as follows :- "Complaint is that I used to work as labourer in the quarry of my uncle Mohammad Bux and my friend Abdul Razak son of Hussain Bux by case Massan resident of Wadbi Patni works in cement factory. Today at about 6-30 p. m. I alongwith Abdul Razak was drinking tea in the cement factory in the hotel of Bureras, the P. Ws. Himath A.I son of Jado Shaikh and Malang son of Alam Dadban resident of Wadhi Patni were also sitting in that hotel. Then Bachal son of Rustam and Kaiser son of Rustam alongwith one Taimur's son whose name I do not know who was relative of Bachal and another who was Gabole by case whose name also I do not know came there, from them Bachal
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was armed with pistol while Kaisar was armed with '12 bore single-barrel gun. Four/five person came Gabole started giving abuses and Taimur's son instigated others to kill, where upon Bachal fired his pistol and Kaiser fired his gun at us. The gunshot fired by Kaiser hit Abdul Razak in the abdomen and his intestine protruded out and he fell down. I tried to pick up injured Abdul Razak then Kaiser fired second shot which hit me on my back as well as on my right arm and the head. Then all the accused went away while giving abusing and firing in the air. This incident was also seen by Malang Dadan and Himath Shaik and others. None of them went near the accused due to fear, nor they chased them. Then I brought injured Abdul Razak to police station for lodging a report who was unconscious. The accused had fired at us because one Mirdad Sukhani, the relative of Bachal was murdered about 2 -- years ago, on that account on behalf of me Imam Bux was challaned in that case falsely. At present he is confined in Jail. On that account today accused had fired at us. At present I am coming for lodging a report." About 15 minutes after the arrival of the complainant at the police station, some persons brought injured Abdul Razak to the police station in the state of unconsciousness. S. H. O. Ghulam Mohammad, who had earlier recorded the F. I. R., prepared mashirnama of injuries on the deceased as well as the complainant (Exh. 11) and also secured their blood-stained clothes under mashirnama (Exh. 12) and sent both of them to the hospital. The mashirnama of injuries showed that 4 out of 5 injuries on Abdul Razak had bled and a piece of intestine had also protruded out. After sending both the injured to the hospital, S. H. O. Ghulam Mohammad went to the wardat where according to him he recorded the statement of P. W. Himmat A.I. On the next morning, he prepared mashirnama of wardat. As, however, no blood was visible at the wardat, he mentioned the fact in the rnashirnama Exh. 16. He recovered no other incriminating article such as crime empty etc. From the wardat nor did he find any mark of pellets on any wall or furniture lying in the hotel. He then recorded the statement of P. W. Malang and went to the Civil Hospital where be recorded statement of injured Abul Razak who was certified by Doctor Imam Bux Abbasi to be in senses This statement (Exh. 17) has been treated as a Dying Declaration of the deceased Abdul Razak who died in the hospital on 12-9-1973. As S. H. O. Ghulam Mohammad was transferred, he handed over the case to S. H, O. Bahadur Hasan Zaidi (P. W. 2) who arrested the appellant on 29-12- 1973 near Regent Cinema, Rohri vide mashir--nama Exh. 8 which showed that nothing incriminating was secured from him or at his instance It appears the other three accused named in the F. I. R., namely, Kaisar (brother of the appellant), Dino (their cousin) and Gabol (their friend) could not be arrested with the result that the appellant alone was challaned on 24-1-1974 while the other 3 accused were shown as absconders. Dr. Imam Bux, Medical Officer, Civil Hospital, Sukkur conducted autopsy on the body of the deceased Abdul Razak and found the following injuries on his person :- (1) Two lacerated wounds on the right side of the abdomen just below the Ribs each 1' x-- and skin deep. 2' x -- ' and skin deep. (2) A lacerated wound of entry on the left side of the abdomen 1/6' X 1/6' and rounded shape. This Doctor was however not examined 'at the trial and his deposition before the committing Magistrate was brought on record under section 509, Cr. P. C. Complainant Ghulam Shabbir was examined by Dr. Ghulam Mustafa Medical Officer, Rohri, who found 6 fire-arm injuries on his person, ail simple in nature. The defence of the appellant was one of denial and false implication on account of enmity with the complainant Ghulam Shabbir. Explaining the nature of the alleged enmity he further stated as follows :--- "I have been falsely involved in this case by the complainant Ghulam whose brother Imam Bux is accused in murder case of my uncle Mirdad in which I was a. Prosecution witness. Moreover, the deceased was not figure,as accused in that case. I produce certified copy of challan of that case
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(Exh. 35). On the day of incident I was on duty from 4-00 p.m. To 12-00 mid night at Rohri Railway Station. Where I am working as luggage porter. I produce such certificate issued by Station Master (Exh. 35). Deceased was involved in so many cases and he was on inimical terms with so many people of different castes, I produce true copy of F. I. R. No. 99 of 1971 under section 382, P. P. C. In which the deceased was one of the accused (Exh. 37). I also produce certified copy of another F. I. R. No. 106 of 1973 under section 307i34, P. P. C. In which also the deceased was figured as one of the accused." To substantiate his defence the appellant produced a certified copy of the challan (Exh. 35) which showed that, on 6-8-1970, his father Rustom had filed a case under section 302, P. P. C. In which Imam Bux, real brother of complainant Ghulam Shabbir, was one of the two accused while appellant Bachal as well as his brother absconding accused Kaiser were eye-witnesses. The case was admittedly pending at the time of this incident. The appellant also produced certified copies of F. I. Rs. Dated 5-8-1973 and 24-12-1971 (Exhs. 37 and 38) to show that deceased was a man of bad character and used to behave as a goonda and on that account had many enemies anyone of whom could have committed his murder and appellant and his relations were falsely involved by complainant Ghulam Shabbir on account of his own enmity. No witness was, however examined in defence. At the trial the prosecution case against the appellant was sought to be proved on the basis of- (a) ocular evidence of P. Ws. Ghulam Shabbir, Himmat A.I and Malang; (b) dying declaration of deceased Abdul Razak (Exhs. 27); and (c) the motive. The learned trial Judge held that the prosecution had failed to establish the motive alleged by them, as shown by para. 19 of his judgment which reads as follows:- "The last piece of evidence against the accused is motive. The motive as alleged by the prosecution against the accused is that Mirdad the uncle of present accused Bachal was murdered 2-3 years prior to this incident and the accused were suspecting deceased Abdul Razak for having murdered him. This motive has been told by com--plainant Ghulam Shabbir only. The P. W. Malang on the other hand stated that he did not know why deceased was murdered by the accused. The deceased Abdul Razak has also not stated so specifically in his dying declaration. He has stated that previously a person of these "Sakhanies", the accused are Sakhanies by case, was murdered and due to that murder complainant's brother is in jail and that on that account the accused had fired at them. The complainant has admitted that deceased Abdul Razak was not figured as accused in the murder case of deceased Mirdad. It is thus quite clear that the allegation of motive attributed to the accused cannot be relied upon and as such the prosecution has failed to establish the motive alleged by it. But the absence of the motive in the case would not weaken the prosecution case in any manner as the law is well-settled that in a criminal case if motive alleged is not established it does not have any adverse affect on the evidence of the prosecution as held in PLD 1965 Kar. 31 and PLD 1974 Kar. 393." The learned trial Judge further found that eye-witnesses had exaggerated their testimony as can be seen from the following lines appearing in para. 13 of his judgment :-.--- "It is true that the eye-witnesses have improved upon their earlier state--ments in the manner as stated by the learned defence counsel. It is worth mentioning here that deceased Abdul Razak has also stated in his dying declaration (Exh. 27), which I will discuss in the later part of this judgment, that present accused fired with his pistol and absconding accused Kaisar fired with his gun but the gunshot fired by absconding accused Kaiser hit him. In the presence of such evidence on record I feel convinced in my mind that the eye--witnesses on this part of the story have exaggerated a little in order to obtain full implication of the present accused in this case."
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He, however, held that "this little exaggeration by itself would not render all their evidence unworthy of credit". Relying on their evidence, therefore, as well as the Dying Declaration, the learned Judge convicted and sentenced the appellant as stated above. Mr. Imdad A.I Agha, learned counsel for the State, conceded at the very outset that the alleged Dying Declaration, apart from being doubtful, was legally not proved and therefore, he would not rely thereon. The alleged Dying Declaration was sought to be proved by the evidence of Dr. Imam Bux and S. H. O. Ghularn Mohammad. Dr. Imam Bux was, how--ever, not examined at the trial and his deposition in the Court of Inquiry was brought on record under section 509, Cr. P. C. As Exh. 28 wherein he stated that the Dying Declaration was made by the deceased who was in his senses and the same was attested by him. The learned counsel for the appellant contended that the Doctor's evidence on this aspect of the case could not be brought on record under section 509, Cr. P. C. And in support relied upon the following observation in a Division Bench judgment of this Court reported as Muhahat v. State (1972 P Cr. L J 416), wherein in para. 15 at page 420 it was observed as follows :- -- "The third dying declaration is allegedly made by the deceased to Dr. Vijay Singh who in his deposition in the committal Court which was brought on record at the trial as Exh. 31 says that the dying declaration was made by the deceased but obviously his deposition pertaining to this part of the dying declaration cannot be treated as relevant under section 509, Cr. P. C. As his lower Court deposition has been brought on record of the trial Court because this evidence is not regarding his expert knowledge of the examination of the deceased and his treatment. Under section 509, Cr. P. C. Under which the statement of this doctor was brought op record of the trial Court only that evidence would be admissible which refers to the medical opinion of the doctor and no other. If the prosecution wanted to lead evidence other than the medical expert opinion of the doctor it should have examined the doctor at the trial Court on oath. But this not having been done, the statement of the doctor regarding the dying declaration becomes inadmissible." The above observations, made in identical situation, indeed support the learned counsel and their correctness is not disputed by the learnedl9 counsel for the State. S. H. O. Ghulam Mohammad, who is the only other witness who has deposed to the Dying Declaration, stated in examination-in-chief that the same was recorded by him. However, in cross- examination he had to admit that it was not written in his own hand. He also could not name the person who had written it. He stated that one police constable had written it. He then stated that one police constable was with him but could not recollect his name. He did not even state that Dying Declaration was written by this constable. Thus, the writer of this document cannot be ascertained, and the S. H. O. Made a false assertion in his examination-in-chief that he himself recorded the statement of the injured. Moreover, even the S.H.O. Has not orally deposed to the contents of the 15ying Declaration which, even Mr. Imdad A.I Agha conceded, was necessary for proving the contents of the Dying Declaration. The S. H. O. Has also not excluded the possibility of B friends and relations of the deceased including complainant Ghulam Shabbir, who had already implicated the present appellant in the F. I. R., being there. He admitted that he did not remember who was sitting with injured Abdul Razak at that time. Then, admittedly, the injured Abdul Razak was alive and in senses on 12-9-1973 yet no attempt was made to have his Dying Declaration recorded by a Magistrate, although at Rohri a Magistrate could have been easily available. The Dying Declaration itself is recorded like 161, Cr. P. C. Statements of other witnesses and is in the same strain. A perusal thereof and the manner in which it is written also does not inspire confidence. We have therefore no hesitation in agreeing with Mr. Imdad A.I Agha, learned counsel for the State, that the Dying Declaration could not be used as evidence against the appellant.
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Mr. Imdad A.I Agha has however relied on the ocular evidence and contended that this by itself was sufficient for conviction. He argued that P. W. Ghulam Shabbir who lodged the F. I. R. Had enmity with the appellant and P. W. Malang was related to him and, therefore, they being interested witnesses they may not be implicitly relied upon, but P. W. Himmat A.I was an independent witness and there was no reason as to why his evi--dence should not be believed. The evidence on record, however, shows that even P. W. Himmat A.I is not free from the influence of the complainant party and even he cannot be relied upon implicitly. He is admittedly a friend of P. W. Malang who is related to Ghularn Shabbir and had come with for having tea in the hotel of Ghulam A.I. Deceased Abdul Razak was known to him for the last 20-25 years and they were neighbours both residing in village Patni which is about 2 mile away from the scene of offence which was a hotel near the Cement Factory in the town of Rohri. It appears really strange that all the 3 eye--witnesses should come from this village and none of the witnesses from the locality, including the owner of the hotel, should have been even examined by the police. The scene of incident was in a hotel and the quarters of the Cement Factory were only 10-15 paces away. At 6 p.m. In the month of September, a lot of people would naturally be present in the hotel and, indeed, their presence is admitted as shown by the F. I. R. And the statements of the prosecution witnesses. Yet, not a single witness has been examined to corroborate the alleged eye-witnesses not only regarding the number and identity of the assailants but even regarding the fact that the incident took place at the alleged time. This aspect of the case assumes importance in view of the contention of the defence that the scene of offence had been shifted in this case so as to provide ocular evidence of P. Ws. Himmat A.I and Malang on the false pretext that they saw the incident because they were having tea in this hotel. The securing of blood-stained clothes of the deceased as well as the mashirnarna of injuries show that the injuries on person of the deceased had bled, yet there was not a drop of blood found at the alleged scene of offence. Further, although accused Kaiser alone is said to have fired about 4-6 shot, no crime empty was found at the wardat, nor was there any other evidence of firing such as pellet marks on the furniture or the walls of the hotel. All there facts coupled with the complete absence of any evidence of the hotel owner or residents of the locality would show that submission of the learned counsel for the appellant, that scene of offences had been shifted, is not without force. Even if it be assumed, for the sake of argument that P. W. Himmat A.I was in no way connected to the complainant that by itself would not be sufficient to place implicit reliance on his testimony which has to be considered on its own intrinsic merits for, as observed by their Lord-- ships of the Supreme Court in Bashir Ahmad v. Abdul Aziz and 3 others (PLD 1969 SC 469), the mere fact that witnesses "are not the relation witnesses it does not mean that they are witnesses of truth. Ultimately, the acid test of veracity of a witnesses is the inherent merit of his own statement'.'. Reference may also be made here to a case reported as Pir Muhammad Khan v. The State (PLD 1970 Kar. 399), wherein a Division Bench of this Court observed as under :--- "To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief." The evidence of the witnesses has, therefore, to be judged on its own merit with a view to see whether it inspires implicit confidence so as to be sufficient for convicting the appellant on a capital charge. P. W. Himmat Al.: stated that he was sitting in the hotel of one Chango when at about 6 p.m. The four assailants came there. According to him appellant Bachal was armed with a revolver, accused Kaiser with a gun while the remaining two carried lathis. He was confronted with his lower Court deposition where he had stated that even Dino and Gabole were armed with guns (Exb. 23
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page 39). Even as regard the weapon carried by the appellant, his evidence that he had a revolver is contradicted by the medical evidence as there was no bullet injuries on either the deceased or the injured com--plainant. Then, according to P. W. Himmat A.I, appellant Bachal "fired revolver shot at deceased Abdul Razak which bit him in his abodmen. The accused Kaiser fired his gun at deceased Abdul Razak which also hit him in the abodmen". The witness was, however, contradicted with his statement to the police under section 161, Cr. P. C. And the same was brought out through S. H. O. Ghulam Mohammad who admitted as follows:- "It is correct that complainant Ghulam Shabir has not stated in his F.I. R. That pistol shot fired by accused Bachal hit deceased Abdul Razak. The complainant has stated in the F. I R. That gunshot fired by Kaiser hit deceased Abul Razak." This would show that, like the two interested witnesses, P. W. Himmat A.I had also improved on his police statement and fallen in line with them so as to implicate the appellant also for actually injuring the deceased. Even the learned trial Judge accepted this position that he had exaggerated, while dis--cussing in para. 13 of his judgment as follows :- "It is true that the eye-witnesses have improved upon their earlier state--ments in the manner as stated by the learned Defence counsel. It is worth mentioning here that deceased Abdul Razak has also stated in his dying declaration (Exh. 27), which I will discuss in the later part of this judgment, that present accused fired with his pistol and absconding accused Kaiser fired with his gun but the gun--shot fired by absconding accused Kaiser hit him. In the presence of such evidence on record I feel convinced in my mind that the eye--witnesses on this part of the story have exaggerated a little in order to obtain full implication of the present accused in this case. How--ever, this little exaggeration by itself would not render all their evidence unworthy of credit. Even if we agree with the learned Judge that this exaggeration would not render the entire evidence worthless, the fact remains that even P. W. Himmat A.I had exaggerated like the other two interested witnesses to "obtain full implication" of the appellant. He even disowned his earlier police statement. There can, therefore, be no guarantee that he is not exaggerating in other respects, such as the number of assailants etc. After all, even according to F. I. R. And pre-trial statements of all the 3 eye-witnesses, the entire damage had been caused by absconding accused Kaiser and looking to the injuries the possibility cannot be ruled out that this was a work of one man. Where is then the guarantee that none of the other three accused has not been falsely implicated ? What is referred to above was. However, not the oily improvement made by P. W. Himat A.I. He stated that except the three others "no other persons were sitting at the hotel at that time". This was contrary to his police statement wherein he had admitted the presence of the other independent witnesses but he falsely denied having made even this statement which, how--ever, was proved through the S. H. O. That he had made that statement. Then, this witness went to the extent of saying that there was blood at the wardat although this was obviously a false statement in view of the evidence of Investi--gating Officer as well as the mashir and mashirnama of wardat. The question then arises as to why Himat A.I was so keen as to deny at the trial all the facts favourable to the accused, even though he had admitted the same in his earlier pre-trial statement and make false statements? This only shows his interest in the prosecution case which he wanted to bolster up. Then, in his anxiety to favour the prosecution, P. W. Himat A.I went on further to say that after the departure of the assailants, Chungo, the owner of the hotel, and many other persons came there, but he did not mention the names of the assailants to any one of them and went away to his village immediately after the incident, and although his house was only one furlong away from that of deceased in the same village, he did not inform even the parents of the deceased that their son was injured. In fact he stated that "till the recording of my statement by the police I did not inform about this incident to any other person" and according to his own evidence his police statement was recorded 2-3 days after the incident. This would show that the witness did not disclose the incident to any person
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for 2-3 days. This conduct is most unnatural and this by itself is sufficient ground for discarding his testimony. We may refer here to the case reported as Jiwa v. The State (1973 P Cr. L J 1006), wherein it was observed that even though the eye-witnesses were impartial having no enmity with the accused, yet their conduct in quietly watching the incident and not informing any one about it would make their evidence doubtful. It may further be mentioned that on this aspect of the case also, P. W. Himat A.I stands contradicted by his friend and co-worker Mallang who stated that both he and P. W. Himat A.I informed Hussain Bux, father of the deceased, about this incident. This contradiction would show that they were most probably not witnesses of the occurrence but their names were intro--duced by the complainant as eye-witnesses in the F. I. R. As he was confident that one being his relation and the other his friend they would stand by him and support the F. I. R., as contended by the learned counsel for the appellant. In this context, the fact that even according to P. W. Himat A.I he was examined by…
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