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Petitioner: ALI BUX VS Respondent: THE STATEHonorable Justice GHULAM SAFDAR SHAHAkbar Khan,Kazi Akhtar Ahmad
1969 P Cr
1969 P Cr. L J 1298
[Karachi]
Before Ghulam Safdar Shah and Abdul Kadir Shaikh, JJ
ALI BUX‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. J‑212 and Confirmation Case No. 48 of 1968, decided on 30th May 1969.
Penal Code (XLV of 1860), S. 302‑--Murder‑Ocular evidence, motive for crime, judicial and extra judicial confession disbelieved--- No corroborative circumstances appearing on record to support prosecution story‑Accused given benefit of doubt and acquitted.
Akbar Khan for Appellant.
Kazi Akhtar Ahmad, Addl. A.‑G. and S. Ale Raza for the State.
Dates of hearing : 7th , 9th and 16th May 1969.
JUDGMENT
GHULAM SAFDAR SHAH, J.‑Accused Ali Bukhsh son of Karim Bukhsh was convicted by the Sessions Judge, Hyderabad under sections 302, P. P. C., and 13‑D of the Arms Act, for having caused the murder of Mst. Mahdi wife of Muhammad Rind, and respectively sentenced to death and two years' R. I. The case before us is by way of confirmation of the death sentence and also by way of Jail Appeal which the accused filed against his conviction.
Briefly stated the prosecution case is that in the early hours of 5‑11‑1966 the accused and the deceased both, along with P. Ws. Habibullah, Shoro and Dodo Lashari, the Haris of comp lainant Urs, were cutting Nari of the paddy cultivation in the lands of Urs situated in Deft Dig Taluka Tando Bago, District Hyderabad; that at about 10 a. m. complainant Urs arrived at his lands, armed with a double‑barrel gun and 4 cartridges which he was carrying in a cloth bag; that after instructing Habibullah, Shoro and Dodo to untie the bullock, as it was getting hot, he left his gun and the cartridges on the Khara and proceeded to answer the call of nature at a place 15‑20 paces away; that when he returned to Khara he found his gun and cartridges missing; that he then saw that the accused was armed with his gun and was proceeding towards Mst. Mehdi; that he challenged the accused as to where he was taking his gun but he did not reply; that he then proceeded towards Ali Bakhsh to recover his gun followed by Habibullah, Dodo and Pario; that they saw the accused firing two shots at the deceased which struck her on left shoulder and chest; that Mst. Mehdi fell down and thereafter the complainant with the help of his Haris overpowered the accused and disarmed him; that when they went near Mst. Mehdi they found her dead; that upon enquiry as to why he had shot the deceased, the accused replied that when asked the deceased had refused to accompany him to the village saying that so long her husband did not arrive she would not do so; that as a result of this refusal he was annoyed and therefore he killed her.
The parties in this case are closely related. The deceased is the real sister of complainant Urs and also the aunt of the accused, being the wife of his uncle Muhammad. Out of the three P. Ws. in this case, two, namely, Habibullah and Dodo, were the Haris of the complainant while P. W. Pario was related to him. It is also an admitted position that the accused was brought up by the deceased in her own house after his own parents died.
As to the motive for the crime, the prosecution case did not appear to be consistent inasmuch as in the First Information Report of the incident the motive given was that the deceased having refused to accompany the accused to his village infuriated him while according to the evidence of P. W., the accused, soon after the commission of the crime, is alleged to have stated that he suspected the deceased to be on illicit terms with Ramzan the son of P. W. Pario Khan.
After the First Information Report of the incident was lodged at Police Station Tando Bago, and recorded by Head Cons table Dost Ali P. W. 9, he proceeded to Wardat along with the complainant. After preparing the usual mashirnamas and the inquest report, he sent the dead body of Mst. Mehdi to Tando Bago Dispensary for post‑mortem examination. He then apprehended the accused on the spot who was produced before him by P. W. Pario along with a gun which he took in possession vide Mashirnama Exh. 21. On opening the chamber of the gun, he found two empty shells manufactured by Eley Company which he also secured, along with two live cartridges of the same Company, from a cloth bag produced before him. Thereafter he recorded the statements of P. Ws. Pario, Dodo and Habibullah and for the night he stayed at the wardat to keep guard over the accused. The next morning A. S. I. P. Khurshid Alam arrived at the wardat to whom lie handed over the custody of, the accused, the case papers and the property. Further investiga tion in the case was then conducted by A. S. I. P. Khurshid Alam.
According to A. S. I. P. Khurshid Alam, he verified the investigation conducted by Head Constable Dost Ali and on the morning of 7‑11‑1966, he produced the accused before A. C. M. Tando Bago where he made his confessional statements. Accord ing to him he then sent the gun, the cartridges and the pellets recovered from wardat for examination to Forensic Laboratory, Lahore, along with three wads which he had received from the Medical Officer who had performed post‑mortem examination on the dead body of the deceased.
In his statements before the two Courts below, the accused altogether denied the case of the prosecution contending that he was falsely involved by complainant Urs with whom he had enmity. When questioned as to his judicial confession, he stated before the Enquiry Court that he was compelled to make it by the Police under torture, but in the trial Court he altogether denied to have made any such confession. He also denied that he suspect ed the deceased to be on illicit terms with Ramzan, the son of Pario P. W. or to have put her to death.
The death of Mst. Mehdi is not denied. Dr. Kishav Lal (Exh. 26), who had performed the post‑mortem examination on the dead body of Mst. Mehdi, at about 11 a. m. on 6‑11‑1966, had found the following injuries upon her person:
"External Injuries
(1) One wound of entrance of 1" diameter surrounded by 5 openings of entrance of " diameter. Edges of these wounds inverted ecchymosed on the outer aspect of left upper arm upper part. Three wounds of exit with averted edges having diameter 1‑1/4' 3/4', 3/4' on the inner aspect of left upper arm upper part.
(2) One wound of entrance of " diameter on the lateral aspect of the left side chest fifth inter costal space with inverted margins and one wound of entrance on the 6th inter costal space 1' lateral to nipple.
(3) Five pellet injuries on the front chest left side upper part. Three pellet injuries on the right memory land are on the mid line of the chest opposite the menubrium sterni, two on the right are upper part and one on the right side chest lateral aspect, upper part.
(4) One wound of entrance 6' x 3' x 2" with inverted edges on the inner aspect of the left thigh extending upwards to the left inguinal region. The sulientaneous tissue over an area of 2' round this wound were lacerated and there was blackening and scortching of surrounding skin 76 small pellets and three pieces of wads recovered.
Internal Injuries
(1) Wall of thorax corresponding to injury No. 2 ruptured.
(2) Corresponding pleura also ruptured.
(3) Lower lobe left lung ruptured. One large pellet remove.
(4) Lower lobe right lung ruptured. One large pellet recov ered.
(5) Pericartium and heart ruptured.
(6) Communited fracture of left humerus bone."
According to him injury No. 2 by itself was sufficient to cause death while all the injuries collectively were to sufficient to achieve the same object.
The prosecution case depends upon the ocular evidence, the extra‑judicial confession and the judicial confession of the accused. The ocular evidence is that of complainant Urs and P. Ws., Pario, Habibullah and Dodo. All of them have supported the prosecution case, as set out in the First Information‑Report, and have attempted to corroborate each other. The learned Judge found no difficulty in accepting the evidence of these witnesses which according to him found full corroboration from the extra -judicial confession and the judicial confession of the accused. The learned Sessions Judge was also satisfied that the medical evidence was in accord with the version of the P. Ws. notwithstand ing the fact that the defence counsel (as indicated by the judgment) attempted to show that it was to the contrary. The learned Sessions Judge was also of the view that the prosecution had successfully established the motive which had prompted the accused to commit the crime.
Before we proceed to analyse the evidence on record, to see if the conclusions of the learned Sessions Judge were proper, it may be mentioned that complainant Urs is the brother of deceased Mst. Mehdi and the accused is his cousin. As already pointed out, the deceased was the aunt of the accused whom she had brought up in her house alter the accused lost his parents at a very young age. In this view of the relationship between the parties, the normal presumption would be against any false implication. However, if after taking into consideration all the evidence on record, a reasonable doubt arises as to the case of the prosecution then the said presumption would be displaced and the accused would be entitled to the benefit of that doubt. We would, therefore, proceed to examine the evidence to see if the prosecution could be said to have proved its case against the accused beyond reasonable doubt.
The prosecution in its case examined 4 eye‑witnesses namely complainant Urs and P. Ws. Pario, Habibullah and Dodo.
According to complainant Urs, Habibullah and Dodo were his Paris while P. W. Pario was his relative and also working on his lands. In cross‑examination he admitted that Patio was not related to the accused. In the First Information Report of the incident and in his evidence before the trial Court, complainant Urs had alleged that when the accused was overpowered and ques tioned, as to why he had murdered Mst. Mehdi, he replied that she had refused to accompany him to the village and therefore the got annoyed and shot her to death. According to the version the First Information Report and the evidence of complainant Urs, the accused had given this reply in the presence of P. W. Pario, Habibullah and Dodo but none of these witnesses supported him on this point. According to all three of them, when the accused was overpowered and questioned as to why he had killed Mst. Mehdi, he replied that he suspected her to be on illicit term with one Muhammad Ramzan. All of them were unanimous that the accused had given this reply in the presence of complainant Urs. In this view we have two versions before us in regard to the extra‑judicial confession of the accused, one given by complainant Urs and the second by the P. Ws. Therefore at least this much is clear that the accused had made his extra‑judicial confession when all four of them were present although there is no unanimity amongst them as to the terms in which the accused had spoken. In this view it cannot be said that the prosecution had established the motive for the crime beyond any reasonable doubt notwith standing the fact that the learned Sessions Judge found no difficulty in coming to the contrary conclusion. For the same reasons the extra judicial confession also appears to be doubtful.
We are of the view that after the prosecution witnesses realised that the motive alleged in the First Information Report was wholly weak, they improved upon it in the trial Court by alleging that the accused had confessed to have killed the deceased as he suspected her to be on illicit terms with Ramzan. The question of any inadvertent mistake, in two versions, given by the P. Ws. does not arise as according to all of them including the version given in the First Information Report the accused had made his extra‑judicial confession when all of them were present. Furthermore, looked at from whatever angle, none of the two alleged motives appeared to be convincing. Admittedly the deceased was not only the aunt of the accused but she had also brought him up in her own house. Therefore it would be wholly absurd to believe that just because she refused to accompany the accused to the house he would pick up a gun and shoot her to death. Similarly if he had suspected the deceased of having illict relations with Ramzan he could have conveniently killed her in the house which was occupied by only two of them.
As to the actual occurrence, the P. Ws. are unanimous that the accused had killed the deceased with two shots. There could be no mistake as to the number of shots fired by the accused as according to complainant Urs, whose gun was used in the commis sion of the crime, he had brought only four cartridges in a cloth bag, two of which were fired by the accused and the remaining two cartridges recovered from him and subsequently, produced before the Investigating Officer. Furthermore, the occurrence had taken place at about 10 o'clock in the morning within the sight of the P. Ws., which also negatives the chances of any mistake as to the number of shots which had been fired. Therefore, let us first examine the medical evidence on record to see if the version of the P. Ws. was borne out by the number and the type of injuries suffered by the deceased.
We have already reproduced the post‑mortem examination Notes of the medical officer which show that the deceased had led as a result of four gun‑shot injuries. However, during the course of the hearing of this case we were not satisfied if these injuries could be caused by only two gun‑shots and therefore we issued notice to the Additional Advocate‑General to appear and assist us on this point. In response to that notice the learned Additional Advocate‑General appeared and supported the opinion of the medical officer according to whom injuries 1, 2 and 3 were caused by one shot while injury No. 4 was caused by the second shot.
After having anxiously applied our mind to the medical evidence, we have not been able to persuade ourselves to believe that all these injuries could be caused only by two gun‑shots although we agree that injury No. 4 was the result of a separate shot. Therefore, for the present we would leave injury No. 4 out of discussion and proceed to examine injuries 1, 2 and 3, which according to the prosecution were caused by a single shot.
According to the post‑mortem examination notes and the evidence of Dr. Kishav Lal injury No. 1, which consisted of one wound of entry of 1" diameter surrounded by five entry wounds of diameter, was on the outer aspect of the upper part of the left arm of the deceased which had its three exit wounds on the inner aspect of the left arm directly in line with the entry wounds. There can be no manner of doubt as to the correctness of this part of the case, as the physical location of the wounds of entry and exit clearly suggests that they were caused by a single shot. However, this does not solve the difficulty as injuries 2 and 3 still need to be examined.
According to Dr. Kishav Lal, these injuries were independent of injuries 1 and 4, and we agree with his opinion. In regard to injury No. 2, he clearly stated that it consisted of two entry wounds of " and 1" diameter and they were found on the 5th and 6th inter costal space with inverted margins. He further stated that these wounds were found on the left side of the chest of the deceased. If that be so, which is the admitted case of the prosecu tion, the question arises whether a single shot could have pos sibly caused injuries 1, 2 and 3.
Looked at from whatever angle, it is impossible to conceive that any such result could have been achieved as a result of a single shot. According to the unanimous version of the P. Ws. as corroborated by the medical evidence, the deceased was shot at an angle between the outer aspect of her left shoulder and chest with the result that six entry wounds were found on the upper part of the lateral side of her left arm. There is no doubt that this was the correct position as the exit wounds of these injuries were found almost in direct line on the inner aspect, of the upper part, of the left arm of the deceased. In order to leave no room for doubt, Dr. Kishav Lal stated that the edges of these wounds were averted which according to the Medical Jurisprudence by Modi is invariably the case with the wounds of exit. Therefore the conclusion become irresistible that when the deceased was shot, her assailant must have approached her from the back as otherwise it would be wholly impossible to conceive that she would have suffered injury No. 1 on the outer aspect of the upper part of her left arm. In fact this conclusion is in complete accord with the version of P. Ws. according to whom the accused had shot the deceased in that position.
We are further strengthened in this conclusion when the nature and type of injury No. 3 is taken into consideration. According to Dr. Kishav Lal, this injury consisted of three wounds, one caused by three pellets and the right memory gland, in the midline of chest, opposite menubrium starni, the second by two pellets on the upper part of the right arm and the third on the upper part, on the right side, lateral aspect of the chest of the deceased. This being the nature of this injury, it is altogether difficult to comprehend if it could have been caused by a single snot, fired at the deceased, from an angle between her left shoulder and chest. The only other alternative, which under the circumstances, can be imagined is that the deceased was shot not in the manner alleged by the prosecution, but perhaps from a position when she was facing her assailant. We are examining, the possibility of the case from this angle in view of the nature of this injury which was found on the front or the chest and right arm of the deceased. However, by taking into consideration the nature of injuries 1, 2 and 3, even then it is difficult to hold that they could have been caused by a single shot. In this respect reference may be made to the unanimous version of the P. Ws. according to whom the accused shot the decease; when she was cutting Nari of the paddy cultivation in a standing position. Therefore, the deceased must have been in a somewhat crouched position to enable her to cut tae Nari and when shot at from an angle between the outer aspect of her shoulder and chest, she could not have suffered injuries 2 and 3 as a result of the same shot. The same would be the position even if it was assumed that when shot at, she was standing in an erect position.
To place the case of the prosecution at its highest, it could perhaps be argued that the two independent wounds of injury No. 2 were in fact the exit wounds of the wounds of injury No. 1 although according to Dr. Kishav Lal this could not be possible as the wounds of injury No. 2 had its distinct entrance in the inter costal space of the chest of the deceased. However, assuming that this could be the case, even then it is difficult to believe that the same shot could have caused injury No. 3, which consisted of three separate wounds on the front and right arm of the deceased. By examining the medical evidence from every conceiv able angle, it is difficult to imagine that injuries 1, 2 and 3 could have been caused by a single shot. Therefore, we cannot escape the conclusion that the prosecution witnesses have suppressed the truth.
Adverting to injury No. 4, the P. Ws. are unanimous that it was caused by a separate shot and they are corroborated by the post‑mortem examination report and the evidence of Dr. Kishav Lal. The fact that this was so, is amply demonstrated by the recovery of wads from the wounds and the discovery of blacke ning and scortching of the tissue around the wound. Furthermore, this evidence also leaves no room for doubt that this injury was caused from a very close range of about 2‑3 feet. The evidence in question further goes to show that none of the pellets from the cartridge, which caused this injury, could have spread so that it could have possibly caused injuries 2 and 3. Therefore, the doubt which has arisen in regard to the prosecution case could not be resolved and in the result the benefit of that doubt must go to the accused.
We would now proceed to examine the evidence of the prose cution witnesses who appeared to have corroborated each other. It is true that the accused and complainant Urs were closely related and therefore the normal presumption would be against false implication. However in view of the doubt which has arisen in regard to the medical evidence, the said presumption would stand displaced particularly when the accused in his statement alleged enmity against complainant Urs. We have already pointed out that in regard to the extra judicial confession of the accused, complainant Urs was not supported by the other P. Ws., who gave an altogether different version. That is an additional circumstance which casts doubt on the case of the prosecution and therefore the evidence of the P. Ws. will have to be examined with caution.
It is the admitted case of the prosecution that Habibullah, Dodo and Pario were the Haris of complainant Urs when the crime was committed. According to complainant Urs, Pario was also related to him, but he was not related to the accused. It may be mentioned that Pario is the father of Ramzan with whom according to the P. Ws. the accused suspected the deceased to have illicit connections. While relationship by itself is not a ground to disbelieve the evidence of the P. Ws. but if it was found that their testimony was not natural and convincing it has to be disregarded. Keeping these principles in view, we would first examine the evidence of the P. Ws. on the point whether the accused could have possibly removed the gun and the cartridges of complainant Urs and managed to have shot the deceased. In cross‑examination the P. Ws. stated that when complainant Urs left his gun and the bag of cartridges at the khara and went to answer the call of nature at a distance of 10 to 15 paces they and the accused were working together in the proximity of about 3 to 4 paces from each other. However Pario denied to have seen the accused picking up the gun and the bag of cartridges and proceeding towards the deceased. It is interesting to note that according to Pario, he did not notice complainant Urs either when he proceeded to answer the call of nature or when he left the gun and the bag of cartridges on the khara and yet in his examination‑in‑chief he stated that this was the case. In any case the version of the P. Ws. appears to be wholly unnatural, if not absurd, that while working together within a radius of 2 to 3 paces from each other, the accused managed to remove the gun and the cartridges and none of them saw him doing so. They further stated in cross‑examination that when complainant Urs returned to the Khara, he found his gun and cartridges missing and them all of them saw the accused proceeding towards the deceased. According to the unanimous version of the P. Ws. they challenged the accused and started running after him who in the meantime started walking fast, loaded the gun with two cartriges and before they could overpower him fired two shots at the deceased as a result whereof she fell down and died. It may be noted that according to Habibullah P. W. when the accused was challenged, the attention of the deceased was attracted who looked at the Khara but she did not make any move and stood where she was, This version of the P. Ws. also appears to be wholly unnatural. In the first place it is difficult to imagine that when the attention of the deceased was attracted towards the khara, as a result of the challenge‑made to the accused, she would stand motionless, mak ing no efforts to move, although in the meantime she must have seen the P. Ws. running towards the accused. Surely the prosecu tion has not suggested that the deceased was an abnormal person and consequently, if what the P. Ws. have stated was really true, she would be expected to take note of the danger and instinctly try to take cover in the adjoining fields or make any such move to save herself from the assailant.
By examining the evidence of P. Ws., we are further convinced that they cannot be believed as their evidence is wholly unnatural. According to the unanimous version of the P. Ws., as confirmed by the sketch of wardat Exh. 5, the deceased was working at a distance of 724 feet from the Khara from where the accused picked up the gun and proceeded to shoot her. The P. Ws. were further unanimous that when they first saw the accused, proceeding towards the deceased, he had covered half the distance from the Khara. Their further version was that at that moment he was challenged by complainant Urs and then all of them started running towards him who until then was walking normally but…
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