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Petitioner: FAZLUR RAHMAN VS Respondent: THE STATEHonorable Justice ABDULLAH JABIRMd. Nurul Islam,Syed A. N. M. Nasiruddin
1969 P Cr
1969 P Cr. L J 878
[Dacca]
Before B. A. Siddiky, C. J. and Abdullah Jabir, J
FAZLUR RAHMAN‑Accused‑Appellant
Versus
THE STATE‑Complainant‑Respondent
Criminal Appeal No. 463 of 1967, decided on 4th April 1969.
(a) Penal Code (XLV of 1860), S. 302‑Murder‑Prosecution found to have proved time, place and manner of occurrence‑No reason to disbelieve witnesses on ground of relationship with deceased‑Conviction of accused not interfered with.
(b) Penal Code (XLV of 1860), S. 302‑Murder‑Sentence-- Murder committed with premeditation and in cold blood‑proper sentence to be capital sentence.
Md. Nurul Islam for Appellant.
Syed A. N. M. Nasiruddin for the State.
JUDGMENT
ABDULLAH JABIR, J.‑This appeal arises out of a judgment of Mr. Kaisar Ali, Additional Sessions Judge, Dacca convicting the accused appellant Fazlur Rahman alias Fazlu Khan under section 302 of the Pakistan Penal Code and sentencing him to rigorous imprisonment for life.
The prosecution case is that P. W. 1 Abdul Malek went to Fulbaria hat on 19th Falgoon, 1372 B. S. corresponding to 3‑3‑1966 at about 5‑30 p. m. He found his younger brother Abdus Samad playing cards with Wazuddin Anu and Fazlu son of Abed Ali at a place to the east of the Fulbaria `hat' and he asked his brother to stop playing cards as it was almost Magrib prayer time Abdus Samad promised to stop the game after one or two more deals P. W. 1 then proceeded Wards the hat and found one Samir Khan moving about with a wooden ruler in hand. After making some purchases P. W. 1 started towards home and saw Samir Khan, Rupa, Islam, Jinnat Ali and Hasen Ali armed with rulers and bamboo sticks moving about the place where the card was being played. Soon after he saw appellant Fazlur Rahman, son of Rustom Khan coming and taking his stand behind Abdus Samad. The appellant was at that time wrapped up in a white chaddar. Suddenly accused Falzu took out a duo and struck on the right side of the shoulder of Abdus Samad. P. W. 1 raised alarm saying that Fazlu son of Rustum Khan had killed Abdus Samad. The appellant and others ran away. P. W. 1 chased them along with P. W. 2 Abdul Khaleque, P. W. 3 Abdus Hamis, P. W. 6 Habibur Rahman and P. W. 10 Chand Mia, but as they were threatened by the culprits they returned to the spot where Abdus Samad was lying and found him dead. The occurrence was witnesses by P. W. 2 Abdul Khileque, P. W. 3 Abdul Hanis, P. W. 4 Syed Ali P. W. 5 Serajaddin alias Serajul Huq. P. W. 6 Habibur Rahman, P. W. 7 Sabed Ali Bepari, P. W. 9 Abdul Hamid, P. W. 10 Chand Mia and P. W. 15 Sabed Ali. P. W. 1 and his brothers P. Ws. 2 and 3 guarded the dead body till about 10 p. m. and made arrangements for taking the dead body home as the place was getting deserted and there was apprehension of the accused party's snatching; away the dead body. After taking the dead body to his home. P. W. 1 started for Kaliganj police station and arrived there at about 6 a. m. in the morning and lodged a first information report. Police thereafter investigated the case and submitted charge-sheet against the appellant and others. There was a preliminary enquiry and 9 persons including the appellant were committed to the Court of Sessions where they were charged under section 302/34 of the Penal Code. The trial was held with the aid of four assessors and the learned Additional Sessions Judge found the appellant guilty under section 302, Pakistan Penal Code, and sentenced him as stated above but found the remain ing 8 persons not guilty and acquitted them hence this appeal by Fazlur Rahman son of Rustom Khan.
The prosecution case is stated by the informant P. W. 1. His evidences regarding the place time and manner of occurrence and on the fact of the appellant being the assailant of Abdus Samad receive corroboration from the first information report which was lodged at the earliest opportunity. There is nothing to contradict him on these points. His evidence that the assault took place when his brother Abdus Samad was playing cards receives corroboration from the fact of seizure of 45 pieces of blood‑stained cards by the investigating officer and blood‑stained earth from the place of occurrence. The evidence of P. W. 1 that when Abdus Samad was playing cards, the game was being witnessed by P. W. 4 Sayed Ali, P. W. 5 Serajuddin P. W. 6 Habibur Rahman and P. W. 10 Chand Mia receives support from the first information report. The learned Additional Sessions Judge, relied upon the evidences of these four F. I. R. named eye‑witnesses and also upon the evidence of P. W. 15 Sabed Ali whom also he found to be an eye‑witness of the occurrence and his evidence according to him, could not be disbelieved P. Ws. 2, 3, 7 and 9 also deposed as eye witnesses to the occurrence but the learned Judge did not place much reliance on the evidences of these witnesses and that of the information the ground that he persuaded himself to come to the conclusion that the occurrence took place not between 5 and 6 p. m. but sometime thereafter and since, according to him, the occurrence had taken place after evening it was not possible for those witnesses to identify the culprit with exactness. The evidences of P. Ws. 4, 5, 6, 10 and 15 were relied upon since it was held that they were witnessing the game of cards from close quarters. We have carefully gone through the evidences on record and we are unable to agree with the finding of the learned Additional Sessions Judge that the occurrence did not take place shortly before 6 p. m. but that it had taken place after evening. The reasons given by him for coming to the conclusion that the occurrence did not take place between 5 and 6 p. m. are not at all convincing. According to him, if it had taken place between 5 and 6 p. m. then it was expected that the witnesses should include some shop‑keepers and independent customers secondly that since according to the prosecution case they were guarding the dead body till about 10 p. m. their conduct in not informing the local men, dafadar and chowkidar or the police out post seems to be curious ; and thirdly according to the medical evidence of the Doctor, rigor mortis was found to be present even after 48 hours of the occurrence which according to the learned Judge, was not possible in the month of March. As already stated the evidence of P. W. 1 regarding time of occurrence which was shortly before 6 p. m. receives support from the First Information Report lodged by him. All other witnesses who deposed in this case including P. W. 4, P. W. 5, P. W. 6, P. W. 10 and P. W. 15 whose evidences were relied upon support the prosecution case regarding the time of occurrence. There is nothing to contradict any of these witnesses on the question of time of occurrence and
that being so, it was possible for the witnesses to see the occurrence without help of any light. The fact that card was being played and there is neither any evidence nor any suggestion to the effect that the game was being played with the help of light indicate clearly that the occurrence had taken place when there were sufficient day light. It was the month of March and daylight continued till shortly after 6 p. m. No adverse presumption can be drawn due to failure of the prosecution to examine independent customers or shop‑keepers of the hat unless it could be shown that they had witnessed the occurrence. The evidence on record show that the hat was not yet in full swing when the occurrence took place and that too many people had not till then gathered. It also appears from the evidence that after giving the chase to the culprits P. Ws. 1 and 2 returned to the spot where Abdus Samad was lying ; that the place was gradually being deserted and they had to guard the dead body and ultimately they had to take the same to their home, and it must have taken considerable time to make preparations for taking the dead body from the place of occurrence. Under the circumstances, if the complainant had failed to inform the dafadar and chowkidar and the police out post that does not cost any doubt regarding time of occurrence. As regards the medical evidence of P. W. 8 Dr. M. M. Rahman, it appears that he stated that rigor mortis was present when he held the post‑mortem examination on 5‑3‑66 the occurrence having taken place at about 6 p. m. on 3‑3‑66. The doctor did not state the time of holding post‑mortem examination and hence the finding of the learned trial Judge that post‑mortem examination took place after 48 hours of the death cannot be accepted. Even if the post‑mortem examination had taken place after 48 hours that cannot throw doubt regarding the time of occurrence for the witness stated in cross‑examination that rigor mortis starts within 2/3 hours and continues from 24 to 48 hours according to the temperature and that in March it may continue for 30 to 36 hours. Since the continuance of rigor mortis depended on temperature and there was no clear evidence regarding temperature during the relevant period no satisfactory conclusion can be drawn regarding the time of occurrence based on medical evidence. Thus we have no hesitation in finding from the evidences on record that the occurrence had taken place shortly before 6 p. m. as stated by the prosecution. The reason for disbelieving the evidence of P. W. 1 therefore, does not hold good. The prosecution case that it was appellant Fazlu who had struck on the neck of Abdus Samad receive support from the evidences of P. Ws. 1, 2, 3, 4, 5, 6. 7, 9, 10 and 15. Since the F. I. R. does not contain the names of P. Ws. 2, 3, 7, 9 and 15 as eye‑witnesses of the occurrence their evidences may better be left out. As regards P. W. 4 the evidence of the witness is that as he was watching the game of cards and sitting on the left side of Abdus Samad he saw appellant Fazlu son of Rustom Khan approaching Abdus Samad from behind wrapped up in white chaddar and as soon as he heard a sound he saw the neck of Abdus Samad displaced and accused Fazlu son of Rustom Khan, escaping to the south with a dao in hand. He was sought to be contradicted by his statement to the investigating officer and it was suggested to him that he did not state therein that when he looked up he saw appellant Fazlu escaping with a ramdao. The witness admitted the suggestion. That being so, his evidence may also be left out of consideration though he was among those who were watching the game of cards when the occurrence took place. P. Ws. 5 and 6 stated that they were witnessing the game of cards and as soon as they heard the out cry of P. W. Malek they looked up and saw accused appellant Fazlu taking out a dao from the neck of Abdus Samad and escaping towards the south. There is noting to contradict these witnesses on this point. P. W. 10 stated that he was also sitting by the side of Abdus Samad and when he heard the out‑cry of P. W. 1 Malek he looked up and saw appellant Fazlu lifting a dao from the shoulder of Abdus Samad and running away toward south. There is nothing to cantradict this witness also on this point. It is true that P. Ws. 5 and 6 are sons of brother of P. W. 4 who is behai of the deceased and P. W. 10 is bhaira of P. W. 3. But this relationship itself cannot be the ground of disbelieving these three witnesses since they are natural and competent witnesses. The evidences of P. Ws. 1, 5, 6 and 10 which we accept without any hesitation, leave no doubt that the appellant Fazlu gave the dao blow on the neck of Abdus Samad as a result of which he died almost instantaneously. The medical evidence of P. W. 8 shows that the deceased had one oblique incised wound placed on back of the neck at the level between 3rd and 4th cervical vertebrae, and that except the soft structure in the front of the neck all other structures behind the neck were cut and that right mandible was also cut. In the opinion of the Doctor, death was due to shock and haemorrhage as a result of injury on the neck which was ante mortem and homicidal in nature. The Doctor further stated that such injury could be caused by a dao or ramdao and the blow was given from behind at one side. The medical evidence is quite in conformity with the evidences of the eye‑witnesses who stated that the injury was inflicted on the neck with a ramdao from the backside of the deceased. There is no dispute with regard to the identity of the deceased. In the circumstances, we find that the prosecution case that appellant Fazlu son of Rustom Khan had intentionally caused the death of Abdus Samad stands beyond reasonable doubt and we see no ground to interfere with the conviction passed against the accused appellant under section 302 of the Penal Code.
It was contended on behalf of the appellant that the prosecution case was not proved beyond reasonable doubt in view of the relationship of the witnesses with the deceased, with regard to time, place and manner of the occurrence and that the motive of the murder was not also clear. As already stated, on a careful analysis of the evidences of the witnesses, we have found that the prosecution has proved the time, place and manner of occurrence and there is no reason to disbelieve the witnesses on the ground of relationship with the deceased. As regards the motive it appears from the F. I. R. as well as from the evidence of P. W. 1 that the deceased used to help the police in securing arrest of culprits of the locality including the appellant Fazlu who was previously involved in a crime it was therefore natural that the appellant would do away with Abdus Samad. Hence, none of the contentions raised on behalf of the appellant seems to be tenable.
As regards the sentence of the appellant, the murder was committed with premeditation and in cold blood and the proper sentence in this case should have been the capital sentence but since no rule was issued at the time of admission of appeal for enhancement of sentence, we would not at this stage enhance the same. But it appears that the form of the sentence passed by the Additional Sessions Judge is not correct. Instead of sentencing the appellant to transportation for life he has sentenced the appellant to rigorous imprisonment for life. At the time of admission of the appeal rule was issued to show cause why legal sentence should not be passed. The said Rule is made absolute and the sentence of rigorous imprisonment for life is converted to a sentence of transportation for life. Subject to this modifica tion in the form of sentence the appeal is dismissed.
SIDDIKY, C. J.‑I agree.
Appeal dismissed.