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Petitioner: ENSAN MATBAR ALIAS ENSANUDDIN MATBAR VS Respondent: THE STATE
P L D 1965 Dacca 220
P L D 1965 Dacca 220
Before A. K. M. Baquer and Abu Md. Abdulla, JJ
ENSAN MATBAR alias ENSANUDDIN MATBAR Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 369 of 1964/Death Reference No. 9 of 1964, decided on 18th December 1964.
(a) Witness
‑ Resiling witness ‑ Statement of cannot be discarded as a whole.
(b) Penal Code (XLV of 1860),
S. 302‑Matricide‑‑Person committing offence on impulse of moment and without any premedita tion‑Capital punishment not called for‑Sentence of death altered to one of transportation for life.
Abdur Rasheed for Appellant.
Abdul Hakim, D. L. R. and K. H. Rashid for the State.
JUDGMENT
BAQUER, J,‑Condemned prisoner Ensan Matbar alias Ensanuddin Matbar alleged to be matricide has been convicted under section 302 of the Pakistan Penal Code and sentenced to death by the Additional Sessions Judge of Faridpur. He has appealed and there is a Reference by the learned Additional Sessions Judge under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. We dispose of both the appeals and the Reference by this judgment.
The trial was held with the aid of four Assessors, all of whom found the appellant guilty under section 302 of the Pakistan Penal Code.
The prosecution examined 10 witnesses. The defence did not examine any witness.
The facts are as under: One Jabbar died survived by four sons, namely, Jamsher, Jahed Ali, Sunamaddi and Munsur by one wife, Abed Ali by second wife and Aminuddin, Daliluddin and Satter by his third wife. Jamsher died leaving his son Hamid and Dadan is son of Hamid. Abdul Majid is son of Jahed Ali. Rustom and Abdul are sons of Munsur. Aminuddin died leaving 3 daughters‑Nurjahan P. Ws. 1 and 2 others without any male child. Daliluddin died leaving two sons, condemned prisoner Ensan and Yusuf P. W. 2 and widow Jolekha. Yusuf is a boy of 12/13 years and resides in the same mess with his mother Jolekha and Ensan lives separately. Nurjahan, Ensan and Satter reside in one house and other sons of Jabber reside in other contiguous separate houses.
Aminuddin left three tin huts with an `Wassiat', that one of his huts should be sold and that by the sale proceeds thereof‑a tube‑well be sunk close to his graveyard; further that a Masjid be erected and Moulvis and Munshis be fed. Accordingly Nurjahan P. W. 1, daughter of Aminuddin, sold the east bhiti tin but for Rs. 950 in Agrahayan, 1370 B. S. and the appellant kept this money with him to do all these things, but he did not. As a result of a splish, however, he sank a tube‑well at a cost of Rs. 250 in Pons following. Nurjahan made takid for the balance of the money but the appellant did not pay. So she instituted a suit in the Nekoli Union Council Conciliation Court for Rs. 700 against the appellant and his mother Jolekha and the date of hearing of the case was due on 1st Chaitra, 1370 B. S.
At Asar prayer time on 14‑3‑64 Nurjahan was clearing dust from the paira in her yard. At that time there was an altercation between the appellant and his mother over the case, in the yard in front of their but and this altercation developed into a quarrel between the mother and the son. Jolekha told Ensan to return the money and that otherwise she would speak the truth before the conciliation Court. Being exasperated by this declaration, Ensan went into his hut saying "you daughter of a whore, must tell the truth" and brought out a ramdao and dealt blows on Jolekha. On receiving the blows Jolekha fell down on the yard and she died instantaneously. Jarina P. W. 3, wife of Satter P. W. 6 and Yusuf P. W. 2 were also there. After dealing the blows Ensan ran towards the north with ramdao in hand. Subsequently he was brought back home under arrest by the villagers with the ramdao. On receipt of information of murder Choukidar P. W. 8 came to their house and guarded the deadbody. Yusuf went to the thana in the night and lodged the F. I. R. at 3 a. m., the distance between the thana and the house of Ensan being 8 miles. After investigation by the police charge- sheet was submitted against the appellant under section 302 of the Pakistan Penal Code and after preliminary enquiry by a competent Magistrate he was committed to the Court of Sessions to stand trial under section 302 of the Penal Code.
The story as above tallies with what was elicited in the earliest information on the subject, that is, the F. I. R. and that was also in substance the story in the committing Court. As the appellant was undefended in the committing Court, there was no cross- examination of the P. Ws. and the defence remained unrevealed.
There was volte face by as many as 3 important witnesses in the trial Court and the appellant being defended this time, the P. Ws. were cross‑examined at some length.
In his examination under section 342 of the Code of Criminal Procedure by the trial Court, he pleaded not guilty and further stated that he was tied up and Yusuf was instigated to lodge the F. I. R. that he did not inflict the kopes. The defence as suggested at the trial was in substance that Abdul Hamid and sons of Satter had damaged the tube‑well but they did not repair it though asked by Ensan; that there was a quarrel over this tube‑well between Ensan and sons of Abdul Hamid and Satter near the tube‑well and during this quarrel when Jolekha had come to save her son, sons of Abdul Hamid and Satter had dealt ramdao blows on Jolekha of which she died near the tube‑well. When Ensan was going to lodge F. I. R. these people arrested him and took him to the house of Hashem, another sister's husband of Nurjahan, and that they had sent Yousuf under threats to Shibchar
police station to lodge the impugned F. I. R.
On those facts, the learned Additional Sessions Judge convicted and sentenced the appellant, as above.
Relying upon the trial Court evidence of P. Ws. 1 and 4, as supported by the committing Court evidence of P. Ws. 2, 3 and 6, and the medical evidence of P. W. 9, the learned Additional Sessions Judge found that the appellant had inflicted the injuries upon his mother by a ramdao leading to her instantaneous death. The learned Additional Sessions Judge found no substance in the defence set up for the first time in the trial Court resulting from the volte face of P. W. 2 Yousuf, P. W. 3 Jarina and P. W. 6 Abdus Sattar. The resiling of these witnesses in the trial Court cut no ice with the learned Additional Sessions Judge. Yousuf being a grown up body, according to the learned Judge, he could not file false ejahar against his full brother under threats from uncle and cousin brothers, as sought to be made out at the trial ; nor the fact of the appellant being arrested when he was running towards north with the ramdao in hand in which direction the thana lay, had any significance with the learned Additional Sessions Judge in favour of the appellant, the reason assigned by him being that the appellant could not have run like that by himself towards the thana for the purpose of lodging ejahar unaccompanied by the local village chowkidar and dafadar. The learned Judge also discarded the story of `maramari' as the appellant did not have a scratch on his person. The suggestion that the appellant was falsely implicated as a result of enmity between the appellant and his uncle and cousin over property left by common ancestors, was also ruled out by the learned Judge on the ground that at any rate the uncle and cousin had no reason to murder Julekha when their enmity was with Ensan and not his mother Julekha.
Mr. Abdur Rasheed, learned Advocate appearing for the appellant condemned prisoners, has taken us through the judgment and the entire records of the case. He has urged (1) that the story of the prosecution was so strange that it could not be believed; (2) that P. Ws. 2, 3 and 6 are thoroughly unreliable and it is unsafe to base any conviction on their evidence and in the alternative if their evidence is taken into consideration at all, it is their evidence in the trial Court that should be accepted in preference to the evidence in the committing Court, particularly because their evidence in the committing Court went unchallenged as the accused was undefended in that Court and the defence went un-revealed ; (3) that the defence version, namely, that the occurrence took place over the repair of the tube‑well may well be true when there was a maramari with Ensan ; (4) that the prosecu tion has not been able to fix the exact place of occurrence ; that if it is at point `K' as in the sketch map, Nurjahan P. W. 1 could not have seen at all ; that as P. W. 1 said that there was no male member present at the time of occurrence, this rules out P. Ws. 2 and 4 as eye‑witnesses.
At this stage we propose to examine the evidence.
P. W. 1 is Nurjahan, cousin sister of the appellant ; P. W. 2 Yousuf is the full younger brother of the appellant ; P. W. 3 Jarina is wife of Abdus Sattar, P. W. 6, who is an uncle of the appellant ; P. W. 4 Mansur Matbar is another uncle; P. W. 5 Chand Molla is a neighbour and a Tax‑Collector of the Niloki Union Council. P. W. 7 is Kazi Anisul Haque, Chairman of the Niloki Union Council. P. W. 8 is the village Chowkidar. P. W. 9 is Dr. A. Haque, Medical Officer, who held post‑mortem examination on the dead body of Julekha and P. W. 10 is Md. Abdul Wahed, 1. O. who investigated into the case and submitted charge‑sheet. P. W. 10 held inquest on the dead body of Julekha on the identification of her son Yousuf and Chowkidar Ketabdi, P. W. 8. After inquest he sent the dead body to Madaripur morgue through P. W. 8. P. W. 9 held the post‑mortem examina tion of the dead body of Julekha on 16‑3‑64 at 12 noon and found the following injuries on her dead body: ‑
"(1) One incised wound 6 " x 4" x 4 " the entire structure of the throat from behind forward was cut. The head was hanging by tag of skin in front situated over the back of the neck at the lever of the second servical vertebrae.
(2) One incised wound 4" x 1" x 2" situated 2" below the injury No. 1.
(3) One incised wound 5" x 2" x 2 " over the right shoulder blade which cut the acrominon process of the right scapula.
(4) One incised wound 7" x 3" x 3" over the left scapula.
(5) One incised wound 9" x 2" X 2 " situated transversely on the vertebrae column at the level of the 1st lumba vertebrae which was cut completely.
(6) One incised wound 4" x 1 " X 2" situated 2" below the injury No. 5. Clotted blood was found in the injury.
Stomach contained partially digested food material weighing 4 chattaks. Other organs of the body were otherwise healthy but anaemic."
The doctor was of the opinion that death was due to heamorrhage and shock as a result of injuries described above which were ante mortem and homicidal in nature. He further opined that those injuries might be caused by sharp‑cutting weapon such as ramdao.
P. W. 1 Nurjahan has stated that the quarrel was held in the yard in front of the but and that the appellant had dealt ramdao blows on the body of Julekha there and she had fallen down and died there. P. W. 4 Mansur Matbar also stated that Julekha had fallen down and died in the yard. P. W. 5 Chand Molla also stated in his examination‑in‑chief that he had found mother of the appellant lying dead on the yard, though in cross‑examination he has stated that he had seen the dead body on the yard near the date tree towards the west and that when the daroga had come the dead body was removed towards east near the but but he was not present when the dead body was removed. P. W. 10, the I. O. stated that he got the dead body in front of the north bhiti but and seized blood‑stained earth from around the dead body and in cross he stated that he had examined the places near about the tube‑well but he did not find any blood any where else and that there was sufficient blood around the dead body. P. W. 1 and other P. Ws. stated that Julekha was murdered a little before sunset at about Asar prayer time. P. W. 1 stated that during the quarrel Julekha had asked her son to give back the money; otherwise she would speak the truth before the Union Council Conciliation Board and that upon those words, the appellant using the ugly words as mentioned before, brought out the ramdao from his north bhiti but and dealt blows upon his mother. Nurjahan was sitting in the yard in front of the dhenki ghar to the south of Kashem's ghar and the occurrence had taken place in the yard of the appellant which was visible from where she was sitting. There was a suggestion made to this witness that the appellant wanted to marry her by taking divorce from her husband and that for that reason she had deposed falsely against the appellant but P. W. 1 stoutly denied it.
P. W. 2 Yousuf went back upon what he stated in the committing Court. He lodged the F. I. R. but he stated at the trial that he had filed the same under threat of his uncle and cousin. The I. O. stated that Yousuf had gone to the thana to lodge ejahar accompanied by Chowkidar Mansur and uncle Abdus Sattar and another Chand and that he had voluntarily stated the occurrence. In the F. I. R. P. W. 2 stated that his brother had gone in and come out with the ramdao and inflicted 7/8 kopes on his mother but at the trial he stated that on hearing cries, he had come home running and found his mother lying dead near the tube‑well. In the committing Court he stated that the appellant grew furious, rushed into his hut, brought out a ramdao and dealt several kopes on his mother and this is also corroborated by the F. I. R. In the committing Court this witness stated that on the 30th Falgun, 1370 B. S. just after Asar prayer time Julekha and the appellant had a quarrel over the case filed by P. W. 1 in the Union Council Court and that his brother rushed into his but and brought out a ramdao and dealt several kopes on the person of his mother and P. W. 1 and himself cried out, that P. Ws. Sattar, Jarina and others had come to the place of occurrence ; that the appellant ran away towards the north with the ramdao in hand.
P. W. 3 Jarina Bibi, wife of P. W. 6, uncle of the appellant, has resiled from her earlier statement like her husband. She stated at the trial that Ensan and his mother had quarrelled near the tube‑well and that Hamid Matbar had come with a lathi ; Rustam and Dadan came out with dao and san ; that Ensan had gone to the ghar and again gone near the tube‑well. Then Ensan called out shouting "My mother has been killed ! My mother has been killed". Then he proceeded towards the north to go to the thana and people of the village had arrested him and tied him there. In the committing Court she stated that on the 30th Falgun 1370 B.S. just after Asar time she had found the appellant and his mother Julekha quarrelling over the case filed by P. W. 1. Accused grew angry, entered into his hut, brought out a ra rdao and dealt several kopes on the person of Julekha. She raised alarm and fainted. Regaining consciousness, she found many persons and narrated the occurrence to them.
P. W. 4 Mansur Matbar stated that on the 30th Fa1gun 1370 B.S. a little before the sunset Julekha was murdered. He heard quarrel between appellant Ensan and his mother when he was going to tie cow. On hearing noise he went to the house and found Ensan dealing blows with ramdao on the body of his mother. Having received the blows, the mother fell down and died on the yard. On hue and cry being raised, Ensan ran away with the ramdao towards the north and the villagers caught him. The witness stated that he and his brothers had no quarrel with the accused over the tube‑well.
P. W. 5 is Chand Molla, Tax‑Collector of the Niloki Union Council, who proved the salish. He stated that Nurjahan, Hamid and others had told him that Ensan had dealt blows with ramdao on his mother and killed her. But in his cross‑examination he stated that there was a row that Ensan had quarrel with Hamid and others over the tube‑well. Incidentally this witness denied that Daroga had seized blood‑stained earth around the dead body of Julekha in his presence but it appears that he attested the seizure list which goes to indicate that he was trying to shield the appellant.
P. W. 6 Abdus Sattar, husband of P. W. 3 stated that on hearing row he had come and found the mother of accused lying dead with 5/6 kopes near the tube‑well; that it was talked of there that Ensan's mother had quarrels with Hamid over a tube‑well and that Ensan ran away with a small dao. In the committing Court this witness stated that he had seen the accused running away with a ramdao and that Julekha, mother of the accused, was lying dead with several kopes on her person and that P. Ws. told him that the accused had dealt the kopes and Jolekha died then and there.
It is to be noted in this connection that the evidence of these three resiling witnesses in the committing Court was brought in under section 288 of the Code of Criminal Procedure.
P. W. 7 is Kazi Anisul Haque, Chairman of the Niloki Union Council. He proved the filing of the case by Nurjahan against the appellant and his mother for Rs. 700.
P. W. 8 is the Chowkidar of the Union Council who stated that he had gone to the house of the accused at the time of Maghrib prayer near the dead body when he was called by Hamid, uncle of the appellant. On his first arrival there he did not see the accused but sometime after at night Ensan was brought near the body by the villagers with ramdao. It appears, however, that he did not state all these things in the committing Court.
P. W. 9 is the Medical Officer whom we have already discussed and P. W. 10 is the I. O. who recorded the ejahar and held the inquest on the dead body of Julekha in front of the north bhiti hut. He seized cut hair from the head of the deceased Exh. III, blood‑stained earth Exh. II and one blood‑stained ramdao Exh. I in presence of Chand Molla P. W. 5 and others. He prepared a sketch map with a separate index Exhs. 4 and 4‑A. In cross-examination this witness stated :‑
"There is a tube‑well in that house. I have not shown it in the map. I examined the places near about the tube‑well. There was sufficient blood fell around the dead body but I seized some blood‑stained earth. I did not see blood any where else. So I did not and could not seize it. I do not remember if there was date tree."
In support of the first contention, namely, that the prosecution story was much too strange to be true. Mr. Rasheed has argued that the appellant never having denied receipt of the money, there was no occasion for any altercation with his mother ; that there was no evidence that the appellant wanted to grab the money. It appears that there was delay on his part in the execution of the works which tended to show that he wanted to devour the money. Jolekha, the mother, stood against it to uphold the truth and for this she has paid the heavy price of her life. So that it is not a question of denying receipt of the money but the failure on the part of the son, i.e., Ensan to implement the trust, that led to the tragedy. Mr. Rasheed has argued next that there could be no earthly reason why he should deal such a grievous injury on his mother on such slight provocation. The evidence discloses that he was living separate from his widowed mother and his little brother, which shows some amount of callousness on his part. For such a son, it is not impossible to inflict the injuries. There being sufficient evidence of eye‑witnesses that in fact he did cause the injuries, the discussion as to how far Ensan could inflict such injuries upon his mother seems rather academic. Truth is often stranger than fiction.
With regard to the ground, that the prosecution has not been able to fix the exact place of occurrence, it will appear that P. Ws. 1, 4 and 5 have fixed the place of occurrence at the yard. It is true that P. W. 5 has said that the body was removed towards west, but that does not mean that it was near the tube well and from there it was removed towards the west. The evidence of P. W. 10, the I. O., as stated in cross, as quoted already, seems to definitely fix the place of occurrence in the yard inasmuch as no blood marks were found in the vicinity of the tube‑well.
Further the tube‑well being in order as per evidence of P. W. 1 Nurjahan, there could be no occasion for quarrel over the repairs of the tube‑well, as suggested to P. W. 1 by the defence.
P. W. I in cross: ‑
"The tube‑well is in order. It is not a fact that it has been damaged by Dad Ali and Abdul Hamid and Rustam and sons of my uncle and they did not agree to repair it. It is not a fact that the accused said that he would not allow them to take water from the tube‑well if they would not pay the repairing cost and that there was `golmal' over this matter and that these persons had come to kill Ensan with ramdao and that they had murdered Jolekha when she had approached to save the accused."
P. W. 5 stated in cross that there was row that Ensan had `golmal' with Hamid and others over the tube‑well while P. W. 6 in examination‑in‑chief stated that it was talked of there that Ensan's mother had quarrels with Hamid over a tube‑well. Thus, the quarrel is once with Ensan's mother and in the next moment it is with Ensan himself. That being the position, we do not find much substance in the argument that the occurrence took place near the tube‑well. It is true, as pointed out by Mr. Rasheed, that P. W. 1 stated
"I did not wash the blood fell in near the tube‑well. Blood fell where Jolekha fell down. Accused had removed this blood."
This was elicited, it seems to us, by a rather clever strategy on the part of the defence lawyer and even at that, the interpretation of it does not necessarily indicate that Jolekha was attacked near the tube‑well and fell near the tube‑well. She has simply stated that "blood fell where Jolekha fell down and accused had removed this blood". It is not the defence case that the accused removed blood.
Mr. Rasheed has strenuously argued that P. W. 1 Nurjahan having stated that no male member was present at the time of occurrence, P. Ws. 2 and 4 cannot be accepted as eye‑witnesses. It appears that Nurjahan has stated that her aunt Jarina and Yusuf were also there. Obviously she was not regarding Yusuf, who is a lad of 13/14, as a male member. Further from the end she was flying her Paira, she may not have seen Munsur P. W. 4 approach ing and further there was no suggestion to P. W. 4 himself that he was not present at the time of the occurrence. As to the visibility from the point where P. W. 1 was flying her Paira the evidence of P. W. 1 is:
"There are 3 divisions in our house. In one portion, we reside, my uncle Sattar Matbar possesses the middle portion and the accused possesses the next portion to the north. At the Asar prayer time of the 30th Falgoon, 1370 B.S: I was clearing dust from the Paira in our portion in my yard where from yards of the other 2 portions are also visible. Huts are on the western and eastern side of the yard of the house. Accused and his mother were altercating at that time . . . . . "
Now, so far as these lines go, it is clear from that that there was nothing to restrict the visibility but Mr. Rasheed has banked upon the following lines stated by this witness in cross:
"To the north of Kashem's house is the cow‑shed of Abdul Sattar. He resides on the east bhiti tin hut. To the north of the court‑yard of Sattar is the but of Ensan. To his north is this yard. To the north of this yard is the but of deceased Jolekha."
The evidence of P. W. 1 is that from her portion of the yard the other yards including that of accused was visible. Separate yard does not necessarily mean yard separated by fencing and the yard is a continuous stretch.
What has been stated in cross, as above, by this witness, does not necessarily mean that this yard is to the right north of the but of the deceased Jolekha, that is, that the yards are split up and separated by the hutments standing across. What has been stated is capable of the meaning that the huts were in a row one after another in the eastern side and as the sketch map shows, there is a continuous stretch of open space along‑side towards west, so that from the point between F and G in the sketch map in the south Nurjahan could have seen. There may be a yard between Ensan and Jolekha towards the north of Ensan and if the occurrence took place there, that may, well be visible from the point between F and G where Nurjahan was. Further more, there is no direct suggestion to P. W. 1 that she could not have seen from her position in the south.
Next drawing the attention of the Court to the evidence of the resiling witnesses, Mr. Rasheed has contended that P. W. 2 supported the defence version of the case in the trial Court and had given natural explanation regarding his previous statement, namely, that he being a young boy, he was overwhelmed with…
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