P L D 1965 Supreme Court 522 (PLP)

CORNELIUS, C. J.‑The considerations which led to the grant of leave to appeal in this case, on a jail petition, were: (1) that the case was one where reliance had to be placed on material recoveries, as corroborative of the direct evidence and that it was possible that the only private witness to prove these recoveries was an enemy of the accused persons; and (2) that death sentences had been awarded to four persons. Three persons were killed, one by a single gunshot, one by gunshots as well as hatchet blows, and the third by hatchet blows alone. The principal victims were two brothers, Imambux and Babadur, of whom Bahadur had given offence to the accused persons by developing intimacy with one of their women Mst. Sodhi by name. She is mother‑in-law to the appellant Hakim, and had lived with one of the accused persons, Muhammad Bakhsh, as a mistress, before she began an affair with Bahadur; a man of a different tribe. Another of the accused persons, Hashim, by name, had remonstrated with Bahadur over this. behaviour, on two occasions shortly before the ambush was laid for him on the evening of the 28th March 1963, as he and his brother Imambux were returning in a tonga driven by one Gulab, to their own village after a visit to a'small town Bhiria by name. Both were sitting in the front seat, and the driver sat on one of the shafts, to keep the balance, for there were three passengers in the back seat. The‑ tonga was stopped as it was passing a spot about six furlongs from the village of the accused persons, and from the front, three men with guns, who were said to be Hashim and Muhammad Bakhsh both of whom have been acquitted, and the appellant Nawab, opened fire. Gulab and Imambux were hit. Then the other three men in the party, Kassim, Naban and Hakim appellants, who were armed with hatchets, gave blows to Bahadur and Imambux, both of whom were still on the front‑seat of the tonga, while Gulab had fallen down. The three passengers .in the rear seat had jumped off as soon as they saw the assailants, and escaped attack by concealing themselves in bushes and scrub by the road side. Their names are Tharo Khan, Imambux and Ramzan. They emerged from hiding after the assailants had left the spot. Gulab died of a single gunshot wound in his chest. Imambux received a charge of shot in the chest fired at close quarters, as was the shot that killed Gulab. Imambux also received a more scattered charge of pellets over his abdomen. There were also four incised wounds on the chest, the neck and the head, which was almost revered. Bahadur had two huge incised wounds on his head arid neck, and three muscle‑deep incised wounds on the left shoulder. The hatchet injuries were clearly of a~ nature to cause great spurts of blood which would naturally stain the clothes of the assailants using the hatchets. Cries were raised, and the gunshots also attracted the attention of persons in the neighbourhood of whom two, namely, Abdus Sattar, P. W. 7 and Mir Khan, P. W. 8, gave evidence. They found on the spot Tharo Khan, P. W. 4, Imam Bux, I3: W. 5, and Ramzan, P. W. 6, the three alleged passengers in the back seat; they saw Gulab lying dead on the road, and Bahadur and Imambux lying dead in the front seat of the tonga. The eye‑witnesses told them what had happened. They supported the case that the attack took place shortly before sunset. There was no delay in reporting the case. This was done at 10‑30 p.m. same night at a Thana, ten miles away, by Tharo Khan. He and the other two tonga passengers, who were wholly unconnected with the trouble between Bahadur and the accused party, fully supported the prosecution story in their evidence. The six persons accused in the report were produced before the Police the next day in their own village at 3 p.m. by one Mir Khan P. W. 8, ;who is nekmard of his own village, and has stated that the accused persons had come to him of their own accord and saying that they had participated in the murders in question, asked him to produce them before the Police. They did this because they feared harsh treatment if they went by themselves. They were interrogated and each of them voluntarily produced certain articles on the same day. Nawab produced a licensed gun, as also did the acquitted persons Muhammad Bakhsh and Hashim. Three empty cartridges were recovered from the spot. One of these was connected by the mark on the percussion cap with ;the gun produced by Nawab. The guns produced by Hashim and Muhammad Bakhsh could not be connected similarly with either of the two remaining cartridges. Each of the other three accused namely, Kassim, Naban and Hakim in turn produced from his own possession a blood stained hatchet and blood‑stained clothes. The blood was found by the Chemical Examiner in each case, except one of the hatchets on. which it was disintegrated, to be human blood. At the trial each of the accused persons pleaded false implication, and attributed the case to enmity between themselves and two brothers, Imam Ali Shah and Nur Muhammad Shah, who are important land owners in the neighbourhood. One of the witnesses to the recoveries was Haji Khan, P. W. 9 from whose evidence it appeared that he had once been an employee of Imam Ali Shah. The concrete basis for saying that Nur Muhammad Shah was inimical to the accused persons is an application made by the accused Hashim to the Commissioner of the Division saying that certain land adjacent to the houses of himself and his relatives, which they had brought under cultivation, had been given by Nur Muhammad Shah to his man Mario for cultivation by force and zulm. This was some 10 years before the occurrence, and the result of the complaint is not proved. It is impossible on so slight a basis to come to a conclusion that Haji Khan was falsely deposing to the recoveries from the accused persons. The evidence of Mir Khan has been rejected in part, that is as to the extra judicial confession, by the triad, Judge and in whole by the learned Judges of the High Court. No good ground appears why this evidence should have received such treatment. There is no doubt that he produced the accused persons before the Police, and it is equally true that accused persons in such cases, who feel that there is some justification for their crime, often take such steps so as to be produced before the Police by some person, such as a nekmard, whose intervention they expect would save them, and possibly their families as well, from the rigours of investigation. Mir Khan is a tenant of Nur Muhammad Shah, but this is immaterial, for Nur Muhammad Shah is not shown to be an enemy of the accused persons, and moreover a great deal of the land in the area is owned by him. There is nothing unnatural about Mir Khan's statement, and even though by itself, in respect of the confession it might not be regarded as sufficient for sustaining the case against the accused persons, yet there would seem to be no good reason why the whole of his evidence should have been discarded. It was urged before us that the conduct attributed to the accused persons after their appearance before the Police was unn4tural. There was no reason why they should come forward to incriminate themselves by production or incriminating articles. On the contrary, it seems to us that when persons who are, at their own instance, produced before the Police and, as appears in this case, are produced as persons who admit the commission of a crime, it is natural that they should be required at once by the Police Officer to give him some concrete proof of the truth of what they say. There would always be present to the mind of the Police Officer the possibility that such persons may be admitting the offence falsely, in order to screen the true offenders. Until some reliable evidence has come. before the Police, they would not be justified in going wholly on what is said by the complainant. As a return therefore, for being spared the full hardships of the investigation, such persons may reasonably be expected to place evidence in the hands of the Police which will convince them that they need not look any further, for the true culprits in the case. The conduct attributed to the accused persons by the prosecu tion in producing their blood‑stained weapons and clothes would thus appear to be by no means unreasonable. It was sufficiently established on the record by the statements of the Thanedar Muhammad Tufail, P. W. 11, and the supporting witness Haji Khan, P. W. 9, who is clearly no enemy of the accused persons' and can be safely relied upon. But even without this evidence, the case was strongly founded on the direct evidence of disinterested and natural witnesses, whose statements showed no hint of exaggeration, when judged by the actual results of the crime. No evidence was led in defence except for certain documents whose relation to the charge in this case is too remote to justify their examination. The charge of murder was fully brought home to the four accused persons by the evidence. None of them was so closely connected with the woman, Mst. Sodhi as to bring them within the range of provocation, by her association with the deceased Bahadur, sufficiently to make that a factor in determining the sentences appropriate to their crime. It was carried out in cold blood, and besides killing Bahadur they wanted only killed also his brother Imambux as well as the tonga driver, Gulab. The sentences of death are therefore fully deserved. We dismiss this appeal. . S.A. H. Appeal dismissed.