1968 P Cr (PLP)

FAZLE AKBER J.--This judgment will dispose of two criminal appeals, viz., No. 44 of 1967 by three convicted persons, Gul Sher, Gama and Arab Gut, and No. 45 of 1967 by Ghulam Hussain who was also convicted in the same case. These four appellants along with one, Mian Budha, were tried under sections 302/3137/149/148 of the Pakistan Penal Code for murders of Ahmad Nur and Fazal Hussain, and attempted murder of Nur Hassan. Mian Budha was acquitted and the other foils were convicted under section 302134, P. P. C. on two counts, and sentenced to death on each count. They were also convicted under section 307/34, P. P. C. and sentenced to rigorous imprisonment for ten years each. They were also sentenced to pay a fine of Rs. 500 each under section 544-A, Cr. P. C. On appeal and reference, their convictions and sentences were armed by the High Court of West Pakistan. They have been granted special leave to appeal to this Court. 'The prosecution case briefly was as follows. On the night between 18th and 19th August 1964, Ahmad Nur and Fazal Hussain were shot dead to haveli of the complainant Nur Hassan at village Darot. At about midnight, Nur Hassan and other inmates of the house, namely, his wife Mst. Nur Bhari, his sister Mst. Ghulam Safia and mother Mst. Masturan were awakened by a shot. They saw Ghulam Hussain and Arab Gut armed with pistols standing by the cot of Ahmad Nur deceased, while Gut Sher and Gama armed with hatchets and Mian Budha armed with a pistol, standing near the cot of Fazal Hussain deceased. Ghulam Hussain then fired a shot at Ahmad Nur and Mian Budha fired a shot at Fazal Hussain. While Fazal -Hussain was trying to get up, Gama and Gut Sher laid him down by giving hatchet blows. Mian Budha then fired twice at Fazal Hussain and Ghulam Hussain fired twice at Ahmad Nur. As Nur Hassan tried to escape, Arab Gut fired a shot hitting him on the thigh. Both Ahmad Nur and Fatal Hussain died on the spot. The neighbours, Muhammad Yar and Nur Khan, came on hearing the shots, reprimanded the assailants and asked them not to molest the women. The assailants then left the place. On the next morning, the-injured Nur Hassan was carried in a cot to the Police Station Tamman which is 8 miles away and there he lodged first information report at about, 12 noon, There was prompt investigation and the Police after drawing the inquest report sent the bodies off to the mortuary the Police then recovered four empties at a distance of one yard from the cot of Ahmad Nur deceased, and three empties at a distance of three feet from the cot of Fazal Hussain deceased. On 22-8-64, the four appellants were produced by the Lambardar before the Police. On search of the person of Ghulam Hussain, the Head Constable Ghulam Martaza recovered a key. Ghulam Hussain then took the Police to his house, opened the lock with the key which was found with hips, and brought out a pistol, Exh. P. 5, which was lying buried in the south-west corner of his kotha; On 24-8-64 Mian Budha was arrested. The doctor who held the post-mortem examination found that Ahmad Nur had six bullet wounds, one on the left side of the chest another on the outer side of right forearm, third on the palmer side of the left hand, and the remaining three on the region of left thigh. Fazal Hussain had two bullet wounds in the region of abdomen and four incised wounds in the region of the head. Nur Hassan had one bullet wound and a contusion on his left thigh. The injuries on the persons of the two dead men indicate the manner in which they were caused; it seems that they received the injuries while lying ors the cot. Further, they give an impres sion that the shots were fired in rapid succession from close quarters by two persons, that Ahmad Nur was an immobile target and never got a chance of making any attempt to get out of the bed and that Fazal Hussain after receiving first shot on his abdomen tried to get up and then he was laid down with hatchet blows. So far as the bullet injuries of Nur Hassan were concerned, they could have been caused by one of the firearms used by the assailants on Ahmad Nur and Ghulam Hussain. The bullet recovered from his thigh was of the same bore as the other empties found near the cots. It may also be mentioned here that according to the firearms expert, the three empties which were recovered from near the cot of Fazal Hussain and one of the four empties found near the cot of Ahmad Nur, were fired from the pistol of 7.65 bore which was recovered from accused Ghulam Hussain. It is quite possible that the other pistol was also of the same bore. Admittedly, the feelings between the accused persons and the complainant Nur Hassan were very bitter. Mahmud, brother of Nut Hassan, had been charged with the murder of Ghazni, brother of Ghulam Hussain and Mian Budha, but he was acquitted. There were both criminal and civil litigations between Nor Hassan on one side and Gut Sher, Gama and their father on the other side. Accused Arab Gut is their relation. In such a case false implication of innocent per sops in the list of the accused persons being a possibility, the evidence of inimical eye-witnesses roust be scrutinized with great care so' that the chance of false implication may be totally eliminated. There are four eye-witnesses in this case, namely, Nur Hassan, his wife Mat. Nur Bhari, sister Mst. Ghulam Safia and mother Met. Masturan. Two points were0xilerlu before us by Mr. Mahmud Ali, the learned counsel for the appellants in Appeal No. 44 as tending to cart doubt about recognition of the assailants by the eye witnesses. Mr. Mahmud Ali contended that the occurrence took place after about I a.m. i.e., after setting of the moon. He therefore, stressed this point in order to suggest that it was riot possible for the witnesses to recognize the assailants in a dark night. To this argument, the evident reply is that this suggestion was denied by Nur Hassan. Furthermore, he clearly stated in cross -examination: -- "When I awoke, Ahmad Nur and Fazal Hussain were fired at and injured lying on their cots. They were already awake when I saw them being injured. I saw them on their cot awake raising alarm as it was moon-light." No such suggestion was, however, made by the defence to the other witnesses. No such point was taken in the grounds of appeal before the High Court nor has it been taken in the grounds of appeal or in the concise statement before us. It seems to me that this argument was based on the statements of the witnesses that the occurrence took place at about a.m. These village folks, especially women witnesses, gave the time not by watch but by mere guess and hence much would not turn on such statements. The High Court examined the evidence of the eye-witnesses individually and came to the conclusion that all of them were present and had deposed to what they saw of the attack. I am, therefore, satisfied that there was sufficient moon-light by which the witnesses could recognize the assailants. The next point raised was as to the possibility of Mst. Masturan and Mst. Safia seeing the clime from the place where they were sleeping. In the judgment of the learned Sessions Judge there is a passage about location of their beds which may be reproduced here; - "Mst. Nurbhari P. W. 18 denied the suggestion that she was asleep in her kotha and did not see the occurrence. She also denied that Mst. Masturan and Mst. Safia were asleep in the deori and did not see the occurrence. Mst. Masturan P. W. 19 also denied the same suggestion and deposed that she had not stated to the Police that she and Mst. Safia were asleep in the deori. Even if it be assumed simply for the sale of argument that Mst. Masturan and her daughter Mst. Safia were asleep in the deori, it is not possible to believe that they would not see the occurrence. The deori is described in the plan Exh. P. N. by the words mushtarka pasar. It has only three pillars to its West. The cots of Fazal Hussain at point I and Ahmad Nur at point III in blue were in front of the said deori and there was no wall in-between to prevent the P. Ws. from seeing the occurrence. Even if they were in the deori, they could have seen the occurrence without any hindrance whatever. Under the circumstances it was unnecessary for them to state that they were outside in the courtyard when the occurrence took place. Mst. Masturan was confronted with her Police statement Exh. D. C. In it she stated that she and her daughter Mst. Safia slept in front of the residential kotha of Ahmad Nur in the courtyard inside the deori. In my opinion, there is no confusion in these words. They clearly mean that the witness slept is the courtyard, which was to the inner side of the deori. The words used by her do not in any way connote the sense that she had slept in the deori under its roof, The words clearly go to show that the portion of the courtyard, where she slept, is to the inner side of the deori `and not in the deori itself. The probability of the said two women sleeping inside the deori is also ruled out by the strong circumstance relating to the season in which the occurrence took place. It was August, which is a very hot month and nobody sleeps under the roof. Accordingly, the only consistent interpretation is that Mst. Masturan and her daughter were asleep in the courtyard, which is to the inner side of the deori and not in the deori itself. However, it may be pointed out once again even at the cost of repetition that this has no material bearing on the merits of the case because the said P. Ws. could see the occurrence, even if they were in the deori itself." It is noteworthy that no suggestion was made to them of any impediment such as a wall lying between these witnesses and the cots of the deceased persons. None of the witnesses was questioned as to any such impediment and therefore it may be safely concluded that there was no obstruction of any kind between these witnesses and the cots of the deceased, which could prevent them from seeing what was happening to the deceased persons. I am also unable to accept the contention that there was inordinate delay in lodging the first information report. The incident, which took place at midnight was reported at the Police Station the next day at noon. Out of 3 adult male members of the house, 2 were shot dead and the third one was injured. Mahmood, brother of injured Noor Hassan, was away from the house. Hence, it is evident that on his return he after making necessary arrangements took the injured to the Police Station. The High Court was, therefore, justified in holding that there was no undue delay in reporting the incident at the Police Station. Strong comment was then made on non-examination of the neighbours, Muhammad Yar and Nur Khan, who admittedly came to the haveli immediately after the occurrence and reprimanded the assailants. From the evidence of the investiga ting officer it appears that these persons were reluctant to give evidence in this case. In these circumstances, I think sufficient and satisfactory explanation has been given for their non-produc tion and hence no adverse inference should be drawn from their non-examination. It was lastly contended that the eye-witnesses being inimical, their evidence should not be accepted without independent corroboration. The learned counsel has argued that in this case the eye-witnesses have falsely implicated Mian Budha and the High Court has overlooked the impact of this false implication of an innocent person upon the whole case. Now, the question is whether there is basis for the serious allegation that one innocent person namely Mian Budha had been falsely implicated in this case. The accused Mian Budha took the plea of alibi. His defence was that at the time of the incident he was on duty as chowkidar in the Sui Gas Colony at Lyallpur. It will, therefore, be necessary to consider whether the evidence and circumstances in this case were sufficient for coming to a clear conclusion that at the time of occurrence. Mian Budha was at Lyallpur, which is 160 miles from the place of occurrence. Muhammad Khan, D. W.1 who at the relevant time was Time Keeper of the Sui Gas Colony at Lyallpur, has stated. "Budha accused present in Court is known to me. He had been employed as chowkidar with the Sui-Gas Organization Lyallpur from 13-7-64 to 21-8-64. His duty hours were from 5 pm, to 4 am. each day, The Muster Roll is with me. According to entries in it, the accused reported for duty on 118-8-64 at 5 p.m. and I returned his card to him on 19-8-64 at 4 a.m. I marked his presence myself in the Muster Roll on that day. I was living in the Sui-Gas Colony. I saw the accused at 9 p.m. after Isha prayers on 18-8-64 and then at 4 a.m. on 19-8-64." The Muster Roll supports the evidence of the above witness. Further, Muhammad Hussain S. I., P. W. 21, has stated: - "After "After the arrest of Budha and after having recorded his ' statement I went to Lyallpur. I examined the register of the Record-Keeper of Sui-Gas Colony and initialled some of the entries. I examined Mian Muhammad Sharif, Munshi Muhammad Khan and Ghulam Rasul chowkidar. The name of the Record-Keeper is Munshi Muhammad Khan (At this stage Munshi Muhammad Khan has been called in at the instance of the defence counsel). I had examined the person who has come into the Court. Munshi Muhammad Khan has produced a register. The witness produced this register before me when I examined him. The entries in the register show that Budha accused was present at Sui-Gas Colony, Lyallpur, from 13-7-64 to 21-8-64. I initialled entries dated 16-8-64 to 21-8-64. These entries show that Budha accused had been attending to his job from 16-8-64 to 21-8-64 at Lyallpur. I had examined the ' previous entries also and initialled them." Mian Budha was arrested on 24-8-64 and on the next day, i.e., on 25-8-64, when the Sub-Inspector went to Lyallpur and examined the Muster Roll and We register, he found that on the night between the 18th and 19th August 1964, Mian Budha was shown as present and attending to his duties at the Sui-Gas Colony. The last column of the Muster Roll contains thumb-impressions of the employees showing receipt of the amounts due to them as wages. Name of Mian Budha appears in the middle of the said roll. In these circumstances, it would be difficult to hold that this Muster Roll was manufactured for the purpose of this cast within two to three days after the occurrence. There was also no suggestion that the Time-keeper had any motive whatsoever to give false evidence in this case. As his evidence finds support from the Muster Roll, which was examined by the investigating office: shortly after the occurrence, I see no good reason for doubting his story. I must, therefore, accept the contention of the learned counsel that Mian Budha was falsely implicated in this case by the eye-witnesses. It is now well settled that the evidence of such inimical witnesses which the eye-witnesses plainly were, must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused's implication upon it. The following observation of this Court in Mst. Hamida Bano v. Ashiq Hussain and others (P L D 1963 S C 109 at p. 124) may be aptly quoted to show as bar, to the nature of corroboration that would be necessary in such u case: - "Hostility between the family of- the murdered persons and that of the accused persons was the cause of the attack, and there being clear proof of false implication from the outset, a general doubt was cast over the truth of the accusation against any of the accused. No value could possibly attach to the evidence of an interested witness in such a case, merely by reason of his deposing to a specific act, e.g., a blow, or the use of a particular weapon, by a particular accused person, for the purpose of fixing responsibility upon him in a criminal case It is clear beyond question that the circumstances of the case of Niaz were so wholly different from those of the present case that nothing said of a general nature regarding the evaluation of the statements of witnesses in Niaz's case can conceivably be relevant to the appreciation of the evidence in the present case." The High Court has held that the circumstances as to the manner in which the deceased were shot dead were sufficient corroboration of the story of the eye-witnesses that the appellants, Gama, Gul Sher and Arab Gul had participated in the crime. In view of the false implication of Mian Budha the above cannot be consider as sufficient to lend assurance that these three appellants too part in this crime. In the light of the observations quoted above the Courts below should have looked for some independent corro boration of the evidence of the eye-witnesses. This, they have not done, The learned counsel for the State has also failed to point out any circumstance which might be regarded as corroborating the evidence of the eye-witnesses in some material particulars. Hence, in the absence of such independent corroboration it cannot be said that charges have been brought home to these three appellants, Gama, Gul Sher and Arab Gul, beyond reasonable doubt. It is true that at least two or more persons had participated in this crime. It may, well be that amongst these three appellants there were some who were concerned in these murders. But, it will be difficult to say who they were. I have already pointed out that the injuries on Nur Hassan could have been easily caused by the persons directly responsible for the murders of Ahmad Nur and Fazal Hussain. Similarly, it may be pointed out that one of them could have easily inflicted all the hatchet injuries found on Fazal Hussain deceased. Thus, the case against these three appellants is subject to a number of doubts, it will, there fore, be highly dangerous to convict them on the: strength of the specific part attributed to them. In view of the above circumstances, I would give benefit of doubt to these three appellants, Gama, Gul Sher and Arab Gul. Next, I take up Appeal No. 45 of 1967, by Ghulam Hussain. As soon as this appellant was arrested, Police found a key on him. He then took the Police to his house and after opening the lock with that key, brought out a pistol, which was lying buried in the south-west corner of his kotha. Mr. Mufti Nazar Muhammad, the learned counsel for this appellant, has contended that the evidence of recovery is not free from doubt. His main grievance is that the recovery witnesses were inimical to some of the accused persons. He, however, failed to show any direct enmity between this appellant and the recovery witnesses. Further, it has been proved by the Director of Forensic Science Laboratory that out of 8 empties recovered from the spot, three had been fired from the recovered pistol. Evidence has also been led to show that this appellant fired shots at Ahmad Nur deceased. Hence, having gone through the evidence of recovery and having approached the entire circum stances involved, I entertain no doubt whatsoever that the seized pistol was recovered from the kotha of this appellant at his instance. Thus, the required corroboration from independent source is available so far as this appellant Ghulam Hussain is concerned. It was contended that as Ghulam Hussain was lame from his childhood his presence at the time of occurrence was doubtful. There was, however, no suggestion that he was unable to move about freely because of this defect in his leg. He has also not taken any such plea in his defence. I am, therefore, of opinion that the char has been fully brought home to him and he has been rightly convicted and sentenced. The result is that I would dismiss the appeal of Ghulam Hussain. I would, however, allow the appeal of Gama, Gul Sher and Arab Gul, set aside their conviction and sentences and direct that they be released forthwith if not wanted in connection with any other case. Appeal accepted.