P L D 1965 Supreme Court 151 (PLP)

CORNELIUS, C. J.‑The appellant, Abdul Razik was convicted by a Sessions Judge of the murder of one Yahya, which was said to have been committed in the following circumstances. Yahya in the early morning of 22nd December 1961, had gone out to the fields to ease himself and while he was sitting on his haunches so engaged he was fired at from the back. It is said that three shots were fired from a distance of some 70 yards. The shots are alleged to have been fired by three brothers, namely, Abdul Razik, Abdul Malik and Abdul Khaliq, who were incited to do so by their father Sharifullah. Abdul Malik and Abdul Khaliq are said to have absconded and could not be brought to trial. Sharifullah and Abdul Razik were tried, and Abdul Razik was convicted and sentenced to undergo transportation for life, but Sharifullah was acquitted, the trial Judge holding that "no active role has been assigned to him by the deceased". This is clearly not correct, for in each of two dying declarations by Yahya there is mention of Sharifullah's presence and of the part he took. In the first of these statements which is the initial report in the case, Exh., P. A., it is said "Sharifullah was standing and he gave the order `mar do'." The second statement was recorded by a Naib Tehsildar and in this, Yahya said "Sharifullah was standing on the spot and it was at his instigation that I was fired at." Another error also appears in the Sessions Judge's treatment of this part of the case. In his judgment, he has said :‑ "In the present case, Sharifullah's presence has been admitted but no active role has been assigned to him. Therefore, mere presence of this accused does not bring his case within the ambit of section 34, P. P. C." The fact is that Sharifullah admitted nothing. In the initial report, Yahya admitted that he had not noticed the presence of any other person near the spot, but after he had fallen, his brother Zakarya arrived and many other persons collected. There were other persons easing themselves in the fields round about. However, at the trial, three persons were produced to give direct evidence. One was Zakarya who admitted that his attention was attracted by the sound of the gunshots, while he was inside his house. It was brought out in the statement of the Thanedar that Zakarya's house is 1i to 2 furlongs from the spot, but Zakarya tried to make out that it was only half a furlong, that is about 100 yards away. The Courts below accordingly refused to accept him as an eye‑witness. The other two eye‑witnesses are Muhammad Sher, P. W. 13 and Amirzada, P. W.

14. Muhammad Sher said that his house was only 35 paces from the spot, but in fact the distance is about 170 yards. Amirzada's house is much closer, but he brought himself even nearer to the spot by saying that he was going out to the fields to ease himself. The evidence of these two witnesses was also disbelieved in the Courts below and quite obviously for good reasons. The trial Judge, however, relied upon the two dying statements made by Yahya. The trial Judge believed that Yahya must have seen his assailants "after the first one or two shots." He accordingly convicted Abdul Razik, but as he held that more than one shots were fired and it could not be said that Abdul Razik's shot brought about the death, he awarded him the lesser punishment of transportation for life. It should be mentioned that of the four assessors who assisted at the trial, three thought that the guilt of Abdul Razik was proved, but the fourth found him not guilt. All agreed in finding Sharifullah not guilty. In the High Court when the case came up on appeal by Abdul Razik, there was difference of opinion between the two learned Judges who heard the appeal, one holding that the dying declarations were true and the other that they could not be relied upon. One factor which had been taken into account by the trial Judge was the fact proved by evidence that Abdul Razik as well as his brothers were not to be found in the village on the 22nd December 1961, when search was made for them following the report. Abdul Razik appeared after some seven months, but the other two remained at large throughout. In the High Court one learned Judge found that the fact of Abdul Razik having absconded supported Yahya's dying declaration. The other learned Judge placed no importance upon his absence from the village, relying upon the circumstance that a Police Officer, who had looked for these very persons on the previous day in connection with a security case, had found that they were not in the village. . There being this difference of opinion between the two learned Judges, the. case was referred to a third learned Judge, who arrived at the conclusion that the dying declarations of Yahya were genuine and true and did not require any corroboration, and further that the absence of Abdul Razik from the village on the 21st December 1961, was not sufficient for holding that he was not in the village on the following day. The conviction being thus confirmed, on a petition by Abdul Razik leave was granted by this Court to consider whether in the circumstances B the dying declarations could be regarded as a safe basis for the conviction of the petitioner, and special mention was made of the fact that these statements had been disbelieved by the Courts below with reference to the accused Sharifullah. We have heard Mr. Zia‑ud‑Din on behalf of the appellant, and Mr. Sher Bahadur Khan, Additional Advocate‑General has supported the conviction on behalf of the State. Learned counsel have not chosen to enlarge upon the legal aspect of the acceptance or rejection of the dying declarations. A lengthy examination of a considerable number of precedent cases has been made in two of the three judgments delivered in the High Court in this case. We do not propose to add to the judicial literature on this topic, for it is evident that the simple question before each of the learned Judges was whether he could believe the statements of Yahya sufficiently to come to the conclusion beyond reasonable doubt that he was fired at simultaneously by the three brothers, Abdul Razik, Abdul Malik and Abdul Khaliq who were incited at the time to fire at him by their father Sharifullah. That is the full content of the statement, and it is material, from the point of view of the degree of belief necessary for the purpose of reaching a conclusion of guilt, that as to the part assigned to Sharifullah the dying declarations were not believed at any stage, (The learned Sessions Judge apparently misdirected himself on this point; if he had believed the dying declarations as to the presence of Sharifullah, he would not have been under the necessity of saying that Sharifullah's presence was `admitted'. He misread the dying declarations when he said that they attributed no active part to Sharifullah, but in the circumstances, the mere presence of Sharifullah was sufficient to establish abetment, for there could be no other explanation of his presence there at a very early hour of the morning in the company of his three sons, when, as alleged, they were carrying out a planned crime of murder of an enemy, except that he was fully involved in the crime). Now, in the concept of a judicial trial according to the mode practised in the British Jurisprudence, belief or disbelief as to the credibility of a witness is a matter which is left entirely to the final judgment of a jury. It is not in any respect a question of law whether a witness appearing at a trial an deposing as to an incident should be believed or should not be believed. The conclusion eventually reached is not an exercise in the application of law, but merely an application of simple human judgment. Therefore, it is plain that the three learned Judges in the High Court were faced with no legal problem, but merely a question of ordinary human judgment. The man who made these statements did not appear before the trial Judge. The usual aids to belief or disbelief, namely, the appearance of the face of the witness as he makes a statement, the manner in which he receives a question, considers his reply and states it, the manner in which he faces cross‑examination and meets objections affecting his veracity, and such other factors by which the human judgment is assisted, are all absent. There is only the bare record on paper of what he said to two persons in the brief time which elapsed between the firing and his death. Neither of the persons who recorded his statement was asked whether he thought the man was saying something which he had been prepared to say, something which was artificial, or, on the contrary, judging by his expression and the way he spoke, that he was telling the simple truth. Yet, this being the only evidence available, it is the duty of the Courts to decide whether or not they can believe it. To accept it without considering the surrounding circumstances would be totally inconsistent with the safe dispensation of justice. To accept it on considerations of expressions of opinion regarding similar declarations in precedent cases, even if those opinions are accompanied by words indicating reliance on some principle of law, is no less dangerous. Only after the most careful scrutiny, applied to all the physical) circumstances as they appear from the evidence, is it possible to decide whether it can be said, with the degree of certainty which is made obligatory for reaching a conclusion of guilt, that the` account given by the deceased of the manner in which he met his death is worthy of belief. A physical circumstance which required to be ascertained with accuracy in this case was as to the degree of visibility when the shooting took place. The report of the occurrence was made at the thana in the same village, Katu Khan at 7‑15 a.m., by the deceased himself. The distance of the spot from the thana is said to be a mile. According to the evidence, the injured man was taken on a cot to the thana and evidently it must have taken p some time to procure the cot. In his first dying declaration, Yahya said that he had already said his morning prayers when h went to ease himself, and that is possible. The morning pray is said at the first crack of dawn, when there is very little light. But 7‑15 a.m., on the 22nd December 1961, which is the day of the winter solstice, that is, when the night is longest, would be barely after sunrise, and calculating how much time was necessary for persons to collect on the spot and to fetch a cot, and probably also to clean the body of the deceased who had been easing himself when he was fired at (for no one says that there was any mark of faeces on his person or his clothes) it is necessary to allow an interval of at least an hour between the occurrence and the arrival at the thana. The distance of Yahya's house from the spot is two furlongs, and that had to be covered probably four times after the occurrence before a start for the thana could be made. An allowance of an hour is by no means excessive for all that was necessary, including the walk to the thana, one mile away. This would put back the time of the occurrence to about 6 a.m., at which time in the dead of the winter, visibility would be poor indeed. It follows that the shots must have been fired from a fairly close distance, and the accuracy of the shooting confirms this conclusion. It is plain that the shots were fired from behind the deceased. There was a pattern of 14 shots concentrated on the upper right buttock and the portion of the lower back immediately adjacent. That shot may have been fired when the man was on his haunches, but there is also a pattern of 12 pellets on the back of the left thigh as well as two pellets on the adjoining portion of the right thigh, and clearly this pattern is the result of a second shot. One or two of the shots appears to have injured the man's private parts and it could be that these were included in the second pattern. This pattern on the backs of the thighs could not have been produced unless the man rose from his haunches, so as to expose the backs of his legs. On the upper left back there were two pellet wounds and one of these pellets appears to have exited through the front of the chest. These two pellets must be attributed to a third pattern of shot. It is difficult to include them in either of the patterns previously mentioned. It may be believed that three shots were fired, but it is practically impossible that these shots should have been fired, in such low visibility from the distance indicated by the prosecution which is 86 paces equalling some 215 feet or 72 yards. It was at that distance that a single cartridge was found, but that may well have been discarded by the gunman or gunmen as they walked away from the scene. The shots could not have been fired in the half dark at 6 a.m., from a much greater length than say 20 yards and the closeness of the patterns of shots confirms this view. In the first dying declaration containing considerably more detail than the second, Yahya said that on receiving the shots he fell on his faeces. The trial Judge believed that he turned round to see his assailants, but this admission by Yahya shows that he was immediately thrown into confusion on receiving the shots. He could only have fallen face forward for the shots came from behind. The second pattern on the back of the left thigh clearly shows that he must at least have been in a half standing position, somewhat unbalanced and leaning forward so that the impact of the charge would throw him on to his face. In the half dark, having fallen on his face, and in a state of confusion he would be in no position to identify the gunmen at all clearly. It was the depth of the winter, and they were presumably fully covered with chaddars and turbans so that only their faces were visible. That would make it even more difficult to identify them at even such a distance as 20 yards, in the poor light. All these circumstances being taken into account, a doubt appears immediately whether the maker of these statements could be at all sure of the identity of his assailants. They were under no necessity to assist him to make them out by going any closer to him or by staying on the spot for an instant longer, once they saw that he had been bowled over. Nothing in these dying declarations is available to indicate that there was any interval between one shot and the next. Read as they are, the indications are of a volley. In our opinion, when these matters are given their due weight, belief in the truth of the details as to the identity of the assailants as mentioned in the dying declarations must necessarily be shaken. A further factor leading to the same conclusion, but which is not quite so definite in its nature is that Dr. Abdullah Jan who examined the injured man while he was still alive clearly said that there were holes in his clothes corresponding to the wounds found on his person. The question at once arises whether it is true that in part Yahya's body was exposed at the time when he was fired at. On one particular aspect of this matter the doctor was explicit, viz., that there were holes in the trousers corresponding to the pellets by which Yahya's private parts were injured. So far as one can judge, if he was actually easing himself when the shots were fired, such holes were most unlikely to be found. However, allowance must be made for inexactness in this respect on the part of the doctor, and it may well be that some part of the pattern of shot did pass through the crutch of the trousers even if ‑they had been let down at the time. Therefore, it is not necessary to conclude from the doctor's evidence, on this point, that in fact the deceased was fully clothed, when he was shot at, but the other circumstances mentioned above clearly operate against placing implicit reliance on Yahya's statement that he was able to recognize the men who fired at him as clearly as the dying declarations purported to convey. That is, in our view, a sufficient reason for holding that to rely upon the dying declarations alone for the conviction of four persons who are admittedly enemies of the deceased would not be consistent with the safe dispensation of justice. It is immaterial that only two of them could be brought to justice, for the finding in the Courts below affect the two absconding men equally with Abdul Razik. We accordingly allow this appeal and acquit Abdul Razik. A. H. Appeal allowed.