1969 PLP 501 (SCMR)

SHAHABUDDIN, J.‑The appellant Moulvi Ali Gohar, a Hakim and a dealer in arms and ammunition at Moro was convicted of murder and sentenced to death by the Sessions Judge of Nawab Shah in respect of the death of Mst. Bakhan caused by gun‑shot injuries. His conviction and sentence were confirmed and his appeal was dismissed by the Sind Chief Court and this is an appeal, by special leave, from the judgment of that Court. Mst. Bakhan was living away from her husband in village Ganwhar Chandio, as her son Chanesar (P. W. 5) was studying in a school at Moro, which is half a mile from Ganwhar Chandio. She was first kept by Jamal, a tailor of Moro but for several years preceding the occurrence she was the mistress of the appellant. The case for the prosecution was that a few days before the occurrence the deceased resumed illict intimacy with Jamal, that the appellant annoyed at this came to her house armed with a double‑barrelled gun and a pistol at 6 p.m. on 6th August 1950, and that after sitting there for some time he shot her with his gun in the presence of her husband's brother Dado (P. W. 4), her son Chanesar (P. W. 5), her husband's sister Mst. Jamzadi (P. W. 6) and Jamzadi's son Budho (P. W. 7). P. Ws. 4, 5 and 7 were sitting on one cot and P. W. 6 on another cot on a thalha about two feet high when the appellant came in and sat on a third cot which was on the same thalha. The deceased was then boiling water at the hearth below the thalha. About ten minutes later the deceased came on the thalha, whereupon the appellant went down with his gun and saying "Be careful. It is coming. You have been enjoying for long part", pointed the gun at her and fired, as a result of which she fell down with injuries and died. The appellant then started running leaving behind the gun which dropped from his hands when he stumbled across a small wall close to the thalha. P. Ws. 4, 5 and 7 and Wali Muhammad (P. W. 8) and others chased the appellant for about 100 paces, after which they abandoned the pursuit, as he threatened to shoot them with the pistol which he had. Chanesar (P. W. 5) then went to report to the police and soon after that, the police came and secured the appellant who dropped the pistol on being told that if he did not do so he would be shot dead. This is the account of the whole occurrence as given by Dado, but Chanesar and Jamzadi gave an entirely different version regarding what happened in the deceased's house and how she sustained the fatal injuries. The evidence of Chanesar was to the effect that the appellant after coming into the house and sitting on a cot keeping his gun on it, asked Budho to go with him for shikar but the later declined to do so, that then the appellant got up and picked up the gun when it went off and the shot struck the deceased who fell down and died, and that the appellant beat his thighs in distress and started going away leaving the gun behind. In the first information report this witness had stated that the appellant killed the deceased by deliberately shooting her on account of jealousy roused by her reviving her intimacy with Jamal. In respect of this statement the witness explained that that report though it bore his signature was not the same as the one he had made to the police. He further stated that the deceased had not resumed her affair with Jamal and that there was no dispute between the deceased and the appellant. The deposition of this witness before the Com mitting Magistrate was then transferred under section 288, Cr. P. C., but there also this witness had stated that his mother was shot accidentally and that she and the appellant loved each other. Jamzadi's evidence of the occurrence was to the same effect as that of Chanesar except in this that according to her on Budho's declining to accompany him for shikar the appellant went out alone and coming back after some time sat on the cot and thereafter the accident occurred. Her statement under section 164, Cr. P. C. was to the effect that the appellant had shot the deceased deliberately. Her explanation in respect of that statement was that she had made it at the instance of the police. Her deposition before the Committing Magistrate was also transferred under section 288, Cr. P. C., but that too did not improve the case for the prosecution, as, like Chanesar she also had stated there that the deceased was shot by accident. Both these witnesses, however, supported Dado's statement regarding the appellant running away and his having been chased. These three witnesses, Dado, Chanesar and Jamzadi were examined ‑at the trial ‑on 8th February 1951, and after the examination of the latter two was over the Sessions Judge passed an order against them to the effect that they had perjured them selves and it was therefore necessary to institute an enquiry and that both of them should furnish security in the sum of Rs. 1000 each for appearance on 22nd February 1951. The trial was continued the next day i. e., 9th February 1951, when witness Budho, son of Jamzadi, was examined. He supported the version of the prosecution, though before the Committing Magistrate his evidence was to the same effect as that of hic mother. In cross- examination he admitted that he has stated in the Committing Magistrate's Court that the appellant had asked him to accompany him for shikar, that on his refusing to do so the appellant went away and coming back stated that he had fired and injured a rabbit, that he then sat on a cot keeping the gun on it and that when he got up and lifted the gun, it went off, the trigger having been caught in the cot, and the shot thus discharged struck the deceased. He also admitted that he told the Commit ting Magistrate that his statement recorded under section 164, Cr. P. C. which was to the contrary was made by him at the instance of the police. After making these admissions he explained that he made those statements in the Committing Magistrate's Court because the appellant's relatives had prevailed on him and his mother and Chanesar to go back on their earlier statements. At that stage the appellant expressed his intention to apply to the Chief Court for the transfer of the case and the trial was adjourned to 9th March 1951. The Sessions Judge however, passed on 9th March 1951, against Budho also an order similar to the one he had passed against his mother and Chanesar the previous day. The record does not show whether any application for transfer was made, but it is clear that the trial was resumed on 9th March 1951, before the same Sessions Judge. Subsequent to the delivery of the judgment the Sessions Judge discharged the rules he had issued against Chanesar, Jamzadi and Budho. The evidence of Wali Muhammad (P. W. 8) was that hearing a report of gunshot and seeing the appellant running away chased by Dado, Chanesar and Budho, he too joined in the pursuit, and when they went close to him the appellant told them that if they came nearer he would shoot them, and that thereafter the police came and arrested him. In his statement under section 164, Cr. P. C. he had said that the appellant had fired his pistol when he was chased, but his evidence was that the appellant did not fire the pistol. Witness Dado made a similar allegation in his statement under section 164, but in his evidence he stated that he had not said so. Budho too did not say that the appellant fired the pistol. In the first information report however it is stated that the pistol was fired. The post‑mortem examination of the deceased was held by P. W. 3 who opined at the trial that the deceased must have been shot from a distance of 10 to 12 feet and the shot must have been fired at her `in a straight manner' from the ground while she was at a height of two feet. This, no doubt, supported the version of Dado as well as that of Budho, but it is remarkable that this opinion was not mentioned either in the post‑mortem certificate or before the Committing Magistrate. The version of the accused was as follows :‑ "The case against me is false. On that day I had gone at for a shoot, as a rabbit was required for a patient of mine suffering from jaundice. I came to the house of Mst. Bakhan who was my mistress. I wanted some one to go with me and I asked Budho to accompany me. He said that he was not well. I then went alone. I saw a rabbit and fired at it. The rabbit was injured but I could not find it. I came back to the house of deceased. I had to attend "Chhathi ceremony" in the house of Sajan. I came to Mst. Bakhan's house and sat on a cot and kept my gun on the cot. After some time, I got to go to the house of Sajan and as I abruptly lifted my gun, the trigger was caught in the netting and went off. The shot struck Mst. Bakhan. Being murdered (?) by the loss of my mistress through accident, I threw the gun there and was going to report to the police, when I was arrested on the way. The motive shown is false and she was true and faithful to me. While going for shikar in the jungle as the practice is, I had loaded both the barrels I had fired one shot and forgotten to remove the other cartridge. it is my habit to carry other revolver always on my person. It is wrong that I fired the pistol at the crowd which is said to have come to pursue me. The gun and the pistol are mine. I am innocent". Leave to appeal was granted in this case as it was considered necessary to examine the evidence in view of the contention that the order passed against Chanesar and Jamzadi on 8th February 1951, before Budho stepped into the box seriously prejudiced the appellant. Having been through the evidence, we find it difficult to avoid the conclusion that the order passed against P. Ws. 5 and 6 must have influenced P. W. 7 to go back on his statement before the Committing Magistrate which, as indicated already, was to the same effect as the evidence of P. Ws. 5 and

6. In this view, it is not safe to rely on the evidence of Budho, but the learned Judges of the Chief Court did not consider this aspect of the matter while dealing with his evidence and the finding of the Sessions Judge that that evidence corroborated the evidence of Dado. This is not the only circumstance that appears to have escaped the attention of the learned Judges. Several other material points which arise on a consideration of all the circumstances appearing in evidence, and the probabilities of the case do not seem to have been taken into consideration by the Court below. It appears to us that the learn ed Judges of the Chief Court decided to believe Dado not on a scrutiny of his evidence with reference to all the circumstances of the case, but only because it was susbstantially in accord with the first information report and the witness's statement under section 164, Cr. P. C. Having come to the conclusion that that evidence was true, they rejected the evidence of Chanesar and Jamzadi as well as the plea of accident set up by the appellant. That so dealing with the evidence in two separate compartments is not the correct way of deciding a case has been explained by this Court in Safdar Ali v. The Crown (P L D 1953 F C 93). The burden of the prosecution to establish its case beyond reasonable doubt never shifts, and whether that burden has been discharged or not should be decided on the case as a whole and if in dealing with the whole case, a reasonable doubt arises then the benefit of that doubt must be given to the accused and he must be acquitted, though what he has pleaded has not been fully established by him. In the present case the prosecution itself presented two versions, one of which was in favour of the accused; but. there was no attempt to consider as to which of these two versions was the more probable. It is true that when a report is made immediately after the occurrence the chances of a case, different from what actually occurred being constructed can reasonably be excluded. But this does not mean that a version found in the first information report should be accepted without scrutinizing it with reference to the rest of the evidence and the probabilities of the case. At any rate, before reliance can be placed on that version the Court must be satisfied that it was in fact the first information in the case. From the account given by witness Dado of the pursuit of the appellant and his arrest a serious doubt arises if the so called first information report was really the first information in the case. That statement is as follows "I study 5th standard vernacular and Ist standard English in Moro. I live along with my mother Mst. Bakhan in village Ganwhar Chandio: My father for the sake of cattle resides in village Bachal Panhwar. Today at tepahri time, I, my mother Bakhan and my paternal aunt Mst. Jam and my cousion (puphat) Budo and my uncle Dado were sitting in the courtyard on a `thalha' in front of the house. My mother having kept a tin of clothes on hearth was firing it when Moulvi Ali Gohar came and sat on `thalha'. He had a gun and pistol with himself. In the meanwhile my mother giving fire came on the `thalha' when Moulvi immediately getting down from the `thalha' pointing the gun directly to my mother said 'it is coming to you' saying so the gun fired and the gun struck my mother in the chest and she fell down, and died. Moulvi leaving the gun started running away. We pursued him upon which he putting the bullets in his pistol said `if you come near me I shall kill you'. In the mean while Dinno, Pahan, Walu, Hassan Chandio and other came. We went near him. Moulvi immediately fired the pistol which did not strike us and he again said `if you come near me I shall kill you'. Then due to fear we did not go, Moulvi Ali Gohar has killed with gun my mother Mst. Bakhan because of this my mother first had illicit intimacy with Jamal Bhati and since three years she stopped her connections with Jamal and created intimacy with Moulvi Ali Gohar. Now from about 10‑15 days Jamal was coming again to our house Moulvi came to know about this. He told my mother `you have recreated intimacy with Jamal. I shall kill you'. He was angry on account of this and he stopped visiting our house. Today Moulvi Ali Gohar came in our house and killed my mother Mst. Bakhan with gun on account of that jealously. The gun is lying on the scene. Moulvi is coming by the railway line. I have come to report. Needful may be done." This is a cogent statement containing introductory facts, details of occurrence and the motive; and it must have taken some time for Chanesar, a boy of 15 years, to mention these particulars. Most of these details must have been elicited by putting questions to him although the Sub‑Inspector would have the Court believe that the statement was dictated by Chanesar himself. But if Dado is to be believed the interval between Chanesar going to the police and the arrest of the appellant could not have been long enough for Chanesar to give the first information to the police and for the Sub‑Inspector of Police to send out his constables on the information given by Chanesar. According to Dado, Chanesar was asked to go to the police station when the pursuit of the appellate was abandoned on his threatening to shoot those who were chasing him, and soon after that the police caught the accused at about 150 yards from the police station. The Head Constable (P. W. 10) who caught the accused no doubt deposed that from the railway line there was a route to the police station shorter than the one taken by the appellant, but even so, we find it difficult to believe that Chanesar could have made this statement to the police before the constables were sent to capture the appellant. It is not the prosecution case that Chanesar just stated that the appellant committed the murder and that after the constables were despatched to catch the appellant he made the rest of the statement. On the other hand the Sub -Inspector (P. W. 11) deposed that he got the information from Chanesar and while starting to write it down he asked the Head Constable to go with constables to arrest the appellant. Further in this statement it is said that the appellant fired his pistol when he was pursued; but as noticed already all the eye‑witnesses includ ing Dado do not support this version. The learned Judges of the Chief Court relied in this respect on the description of the pistol in the mashirnama to the effect that the pistol seized from the appellant bore traces of having been fired just then. But the fact that Dado and Wall Muhammad who had supported this version in their statements under section 164 deposed to the contrary at the trial was not taken into consideration. In the circumstances, we think, that there is substance in the contention of the learned counsel for the appellant that the first information report is not the first information in the case, but a statement recorded during the investigation and that the firing of the pistol was purposely introduced into it. Dado admitted in his cross‑examination that immediately after the shot was fired P. Ws. 5 and 7 told him that there was no enmity between the appellant and the deceased and the gun must have gone off accidentally. The learned Judges of the Chief Court observed in respect of this statement that if that was true Chanesar would not have lodged the report to the police without disclosing this fact and Dado, Chanesar and Budho would not have pursued the appellant. In the view we have expressed above about the first information report, the fact that it is different from what Chanesar has deposed to is no justification for rejecting the admission made by Dado. As for Budho, his evidence at the trial, for reasons already stated, cannot safely be relied upon. His admission at the trial with regard to what he had stated to the Committing Magistrate discloses that his version there was that the deceased was shot accidentally. As for the appellant having been pursued, that by itself is not sufficient to establish that be was chased because he had committed the murder, for, as suggested by the learned counsel for the appellant, a death by gunshot had occurred and it was natural for persons present at the occurrence to be anxious to rush to the police. From the fact that the appellant ran away no adverse inference against him can be drawn, as even according to Dado he ran towards the police station and he was only 150 yards from there when he was caught. As seen already the appellant's version is that he was going to the police station to report the accident. In the circumstances, the admission made by Dado that P. Ws. 5 and 7 told him immediately after the occurrence that there was no enmity between the appellant and the deceased and that the gun must have gone off accidentally clearly supports the version of the appellant. Another point about Dado's evidence pressed before us for the appellant is that to the Committing Magistrate he had stated" on the sound I heard and saw Mst. Bakhan fell down and died". This militates against his version that he saw the accused pointing the gun at the deceased and shooting her. The learned Judges observed in respect of this statement "but in his re examination he cleared by saying that both in examination‑in chief and examination to Court he had stated that he had seen the accused pointing out the gun at Mst. Bakhan and firing at her". But it is not known if this statement of the witness is true. That portion of his deposition before the Committing Magistrate is not on the record. His statement at the trial was that he had not stated before the Committing Magistrate that on hearing the gunshot he saw that the deceased had fallen and died, but the relevant portion of the evidence before the Committing Magistrate which is on the record shows that he made such a statement. Another unsatisfactory nature of this witness's evidence is that while he said in examination‑in‑chief as well as in cross‑examination that the deceased was standing on the western edge or in the north‑western corner of the thalha when she was shot, the sketch shows that the place where she fell down was in the north‑eastern corner of the thalha. It is not the case for the prosecution that when the accused pointed the gun at her she moved from where she was standing. On the other hand the evidence is that though the accused warned her that he was firing at her she stood quite and composed. This aspect of the evidence of Dado was not considered by the learned Judges. Nor do we find any discussion in the judgment about the probability or otherwise of the version spoken to by this witness. If the appellant had come to the house to shoot the deceased, his sitting on the thalha without shooting her when she was standing below the thalha, while the others were on the thalha and his going‑down when she had come on the thalha where others were already seated and then shooting her from below the thalha was very strange indeed. In fact, it seems unlikely that if he had the intention to kill the deceased he would have effected his purpose at a time when the son, a brother‑in‑law a sister‑in‑law and a nephew of the deceased were present in the house. If Chanesar is to be believed there were no differences between the deceased and the appellant at all and as shall be seen presently on the question of motive there is no satisfactory evidence in favour of the prosecution. However, even according to the evidence of the prosecution relied on by the learned Judges of the Chief Court it cannot be said that the appellant had given up visiting the deceased: In those circumstances if he had made up his mind to kill the deceased he would have done so at night when there was no one present or awake and not in the evening in the presence of so many persons related to her. The question is whether it has been satisfactorily proved that the accused had reason to kill the deceased at all. The learned Judges relied on Dado's evidence in this respect; but his evidence that 10 to 15 days prior to the occurrence the deceased had reverted to her first paramour is obviously hearsay, for, he himself admitted that he came to the village on the day of occurrence and that his visit next prior to it was three months before that day. He was therefore not in the village during the fortnight preceding the occurrence and he could not have had personal knowledge of the deceased having resumed her intimacy with Jamal. In cross‑examination Dado added that Budho and Chanesar had told him that the deceased had become friendly with Jamal, but these witnesses have not deposed that they said so to Dado. On the other hand as pointed out in another con nection Dado admitted at the trial that Chanesar and Budho told him immediately after the deceased was shot that there was no enmity between her and the appellant. Chanesar in his evidence before the Committing Magistrate said that his mother and the appellant loved each other. Budho even when he deposed under fright caused by the action taken against his mother first said. "I do not know further as to why did the accused cause her death". Then his attention was drawn to his statement under section 164, Cr. P. C. when he added that Jamal had started visiting the deceased and thereafter the accused was annoyed with her. Similarly Jamazadi first said that she did not know if the deceased revived her connection with Jamal, but when her attention was drawn to her statement under section 164, Cr. P. C. she said that what she had stated there was the correct version. But later when questioned by the Court she added that she was tutored by the police to make the statement recorded from her under section 164, Cr. P. C. In her evidence transferred under section 288 she did not say that the deceased had revived her intimacy with Jamal. On the other hand she stated there that the appellant was not annoyed with the deceased on account of Jamal and that there was love between the appellant and the deceased. Chanesar deposed before the Committing Magistrate that a month prior to the occurrence the appellant asked the deceased to stop the visits of Jamal to her house and that she told Jamal not to come to her house. But even according to this version Jamal stopped coming to the house and there was no reason for the appellant to feel annoyed with the deceased. Chanesar did not say before the Committing Magistrate either that the deceased declined to stop Jamal's visits or that Jamal persisted in visiting her. In this state of evidence we do not think that it can be said that the prosecution has proved beyond reasonable doubt that there was sufficient motive for the appellant who was intimate with the deceased for three years prior to the occurrence to feel so annoyed with her as to be rash enough to shoot her in her house in the presence of several of her relatives. The learned Judges referred to the medical evidence as supporting the version of Dado but the doctor did not say that it was not possible for the injuries to have resulted from the gun going off accidentally. As for the distance of 10‑12 feet from which the deceased, accord ing to' the doctor must have been shot, it is equally consistent with the theory of accident. It is seen from the sketch that one of the cots was at a distance of about 10 feet from the place where the deceased fell on receiving gunshot injuries. The doctor no doubt deposed that he was of opinion that she must have been shot at a height of two feet from the ground, but he admitted that he did not note this in the post‑mortem certificate. It is extremely unsafe to act on this opinion especially when the data are not fully explained. In any case he has not ruled out the possibility of the deceased having been hit by a shot discharged from the gun in the manner stated by Chanesar and Jamazadi. The learned Advocate for the Crown contended that if only one shot had hit the deceased the plea of accident could have been accepted, but the evidence was that there were two shots; and he referred in this connection to the fact that there were two empty cartridges in the barrels which were found smoked and fired. The appellant's explanation was that after shooting the rabbit he had forgotten to remove the other cartridge. The learn ed Judges appear to be of opinion that it is not possible for a dealer in arms and ammunition to forget to remove a cartridge. We see no difficulty in accepting the appellant's explanation. He visited the deceased's house on his way home and he might have thought of removing the cartridge on going home‑ or might have forgotten to remove it then and there. There is no presumption that every shikari acts as carefully and methodically as he should. That the appellant when he came to the house of the deceased that evening spoke of going out for shikar is spoken to by Chanesar and Jamazadi, and the latter further added that he came back to the house after having gone out from there on Budho declining to accompany him. Budho himself stated before the Committing Magistrate that the appellant on his return to the house said that he had shot and injured a rabbit. However it is clear that only one gunshot struck the deceased. That two shots were fired at her is another part of the earliest version which witnesses including Dado did not support at the trial. For instance Dado in his examination‑in‑chief said that it was one continuous explosion of gunshots he had heard; but in cross‑examination he admitted "it was one sound of gunshot explosion which I had heard and not two. What I have stated in 164, Cr. P. C. statement about two sound of gunshot is not correct". P. W. 8 Wali Muhammad, who was at about 30 paces from the house of the deceased when the occurrence took place, deposed that he. had heard a report of gunshot, although in his statement recorded under section 164 he had said that he heard two gun shots. The only witness who at the trial said that the accused fired two shots at the deceased was Budho, but, as already pointed out, it is not safe to rely on his evidence. His earlier statement before the Committing Magistrate was that owing to the trigger having got entangled in the cot the gun went off accidentally. Reviewing the evidence in this case as a whole it seems to us extremely doubtful if the deceased was deliberately shot at as alleged by witness Dado. On the other hand the version of Chanesar and Jamzadi appears to be nearer the truth. We, therefore, allow the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith. Appeal accepted.