1969 PLP 571 (SCMR)

Date of hearing : 3rd December 1958. MUHAMMAD MUNIR, C. J.‑This is an appeal by special leave from a judgment of the High Court of West Pakistan, Lahore, confirming on appeal convictions and sentences for rioting and murder. Thirteen persons, including Muhammad Yusuf and Inayat appellants, and Allah Ditta who died during the trial, were committed to the Court of Session on the charge of rioting and murdering two brothers Allah Ditta and Muhammad Shafi. The learned Judge convicted only the appellants under section 148, Pakistan Penal Code for rioting and under section 302, P. P. C. for the murder of Muhammad Shafi and sentenced them to 2 years' rigorous imprisonment each under the former and to death under the latter section. The convicts appealed to the High Court, but remained unsuccessful. The main evidence on which the convictions are founded are the statements of two women witnesses Fazal Begum and Begum, and leave to appeal, was granted by this Court to consider the question whether the High Court had omitted to consider "some important circum stances and irregularities in the investigation which affect the credibility of these witnesses". The murders were committed a little after sunrise on 21st October 1956, in the area of village Malikpur Kalan within the jurisdiction of Karianwala police station. Two reports of the occurrence were lodged with the police, the first at 7‑30 a.m. at Police Post Bhuchh, a mile or so distant, and the second at Police Station Karianwala at 8‑0 a.m. An Assistant Sub‑Inspector of Police from the Post arrived immediately on the scene and carried on some preliminary investigation. Later, a Sub Inspector from Police Station Karianwala reached the spot, verified the earlier investigation by the Assistant Sub‑Inspector of Police and took the subsequent investigation into his own hands. Allah Ditta had been murdered at a place to the west of the abadi of the village while Muhammad Shafi was chased for a distance of about 70 yards to Dera Berianwala where he was killed inside a kotha and whose body was subsequently dragged to where the dead body of Allah Ditta, lay, the persons concerned in his murder being the two appellants and four others. The murderous gang is alleged to have been organised by Allah Ditta deceased, a notorious badmash who had abducted Mst. Bhag Bhari, a sister of the two deceased. After living for some time with Allah Ditta the abducted woman is stated to have returned to her brothers who refused to return her to Allah Ditta. This is stated by the prosecution to be the motive for the offence. The two eye‑witnesses, Fazal Begum and Begum, were residing at Dera Berianwala and their evidence was that Muhammad Shafi, pursued by his assailants who were armed with rifles and spears, had come running to the dera. He rushed into a kotha whereupon Mst. Begum immediately shut up the door, put up the chain and locked the door from outside. The pursuers appeared immediately after this, broke the lock and the chain and rushed into the kotha where they put Muhammad Shafi to death. Fazal Begum and Begum gave a detailed account of the whole transaction and they were corroborated in their evidence by the circumstantial evidence of Muhammad Shafi having been killed inside the kotha and his body having been subsequently dragged to the place where the first murder was committed. The only point taken by Dr. Tassadaque Hussain, counsel for the appellants, in terms of the order granting special leave to appeal is that though the Assistant Sub‑Inspector of Police arrived earlier on the scene he did not record the statements of these two witnesses because they were not found at the dera. The High Court discussed this point thoroughly and came to the conclusion that in all probability the Assistant Sub‑Inspector of Police denied the presence of the two women on the spot because he had by inadvertence not recorded their statements and was thus driven to deny their very presence in order to explain the omission. The important point, however, is that in the inquest report prepared by the Assistant Sub‑Inspector of Police the names of these two women figure as eye‑witnesses of the crime and they could have been so mentioned in the report only if he had information that they had witnessed the murder. When the Sub‑Inspector arrived, these two witnesses were present and their statements were duly recorded. We do not therefore think that the conflict between the evidence of these two witnesses that after the murders they remained at the dera until the arrival of the Sub‑Inspector and that of the Assistant Sub‑Inspector of Police that when he arrived at the dera neither of the women was present as any significance or materially affects the evidence of the witnesses. Mr. Tassadaque Hussain also attempted to show that the evidence of the Assistant Sub‑Inspector of Police that he had noticed blood inside the kotha and a trail of blood and marks of dragging from the kotha to the place where Allah Ditta was killed and that some other material objects including empty shells of cartridges were recovered by him from the kotha, was false. The sole fact on the basis of which he attempted to build this argument is the statement of afoot‑constable that he saw Sakhi Muhammad, the man who had made the report at the Police Post at 7‑30 a.m., at Karianwala Police Station when the second report was lodged there by Pehlwan. It appears to us that the foot‑constable had been persuaded to make this statement because if the fact had been as alleged by this foot‑constable the defence would certainly have questioned on this point not only Pehlwan but also the officer who recorded the second report. There would also have been some suggestion in the cross‑examination of the Assistant Sub‑Inspector of Police that what he claims to have noticed at the dera was untrue. We have carefully exained the judgment of the High Court and the relevant evidence in the case and come to the conclusion that both the appellants have been rightly convicted. The appeal is therefore dismissed. Appeal dismissed.