1968 P Cr (PLP)

ABDUL MOUDUD, J.‑The two appellants 'Asmat Ali and Ghulam Kader along with three others were placed on trial before Mr. M. N. I. Khan, Additional Sessions Judge, Chittagong to answer a charge under section 302/34 of the Pakistan Penal Code. The trial was held with the aid of three assessors and one of them was of opinion that both the appellants are guilty under section 302/34, P. P. C. while the other two were of opinion that the appellants were guilty under section 304/34, P. P. C. The learned Sessions Judge, however, has convicted both the appellants under section 302/34, P. P. C. and sentenced each of them to rigorous imprisonment for life. The prosecution case put in a nutshell was that the deceased Mozahar Ahmed Sikdar was the Chairman of Iddgarh Union Council. Or 9th of Aswin, 1370 B. S. corresponding to 26‑9‑63 Mozahar Ahmed went to Cox's Bazar Court in connection with a bail matter and he was returning home in the afternoon. He was awaiting for escort from home at Iddgaon but station where he found his servant with a horse for him. As his escort had not yet reached, the prosecution witnesses, door Ahmed, Surat Alam, Zabal Mulluk and Md. Hussain wanted to escort him and they set out from the bus station stop. Mozahar Ahmed Sikdar was on the horseback behind Noor Ahmed while the other three were behind him. When they reached to a point about one‑fourth mile away to the south‑east of the Bhomoria ghona Forest Office, where there are forests and tillas and hills on both sides, a gun‑short was fired at Mozahar Ahmed who fell down from his horse. Suddenly about 8 to 10 assailants rushed from the hillock and they surrounded the deceased when one of the assailants with a double‑barrel gun in his hand and the appellant Asmat Ali with a single‑barrel gun in his hand fired at Mozaher Ahmed twice. The other appellant with his other accomplices were bare‑handed and were standing there. Noor Ahmed and the three other prosecution witnesses ran away out of fear. Just at that time P. W. 5 Sukkur alias Abdus Sukkur, Md. Ishaque and another Abdus Subban who are wood‑cutters and were returning home after day's work happened to reach to the place and they found one woman called Sahar Mullick's mother near the injured Chairman with a burning candle stick. Mozahar Ahmed is alleged to have stated before them the names of his assailants. Thereafter the other prosecution witnesses came there and they carried him back to the Iddgaon bus stop near a tea stall where the complainant Lal Mohammad and others came. Mozahar Ahmed expired meanwhile Sukkur and Md. Ishaque are alleged to have stated before the persons present there that they heard from Mozihar Ahmed the names of his assailants including the appellants. Lal Mohammad went to P. S. Cox's Bazar covering a distance of 22 miles and lodged a first information report at I a.m. on 27‑9‑

53. S. I. of Police Abdur Rahman came to the spot where the dead body of Mozahar Ahmed Sikdar was lying, held inquest over it and forwarded it to the morgue for post‑mortem examination. He seized alamats, examined witnesses and finally charge‑sheeted the appellants and some others. Thereafter an inquiry was held by a 1st class Magistrate who committed the two appellants and 3 others to the Court of Sessions to take their trial. The defence plea was that the deceased Mozhar Ahmed bad various sorts of litigations, land disputes and rivalries with his re latives and other persons including the appellants. Mozahar Ahmed might have been killed quite in dark when nobody could recognise the assailants and it was due to long standing enmity that the appellants are implicated in this case out of private grudge. There is no challenge to the fact and there is overwhelming evidence on record that Mozahar Ahmed Sikdar met his death as a result of injuries received by the gun‑shots on 26‑9‑53 while he was returning home from Cox's Bazar. P. W. 12 S. I. A. Rahman deposed that on first information report being lodged to him be at once left for the place of occurrence and he held inquest over the dead body of Mozahar Ahmed Sikdar at Bhomoria Ghona and thereafter he forwarded the dead body in‑charge of constable P. W. 6 Sujat Ali to the morgue for post‑mortem examination. P. W. 8 Dr. S. Choudhury, Sub Divisional Medical Officer at Cox's Bazar held post‑mortem examination over the dead body on 27‑9‑63 at 15‑30 hours and he found the following injuries:‑ (1) One perforating gun‑shot wound‑entrance 2" x 2" with inverted and alight ragged margin on the anterolateral surface of the lower part of right arm and exit 2/5" x 1/3" on the medial surface of the middle third of right arm with inverted and slightly ragged margin. The distance between the exit and the entrance is 2 1 ''. 3 (2) One gun‑shot punctured wound on the right mid axillary line 2' x 2 below the upper end of the line 2/5' x 1/3" x cavity of the chest. (3) One hole‑like perforating gun‑shot wound‑entrance 1 " in circumstance on the right mid axillary line 8 ' below the upper end of the line and 3 above the right illiac crest, exit 1-4/5 in circumference on the left side of the abdomen between the left 9th and 10th ribs, 3 " to the left of the middle line of the body and anteriorly and a bit in the upper level of the entrance. (4) One hole‑like punctured gun shot wound 1 " in circum stance x abdominal cavity with inverted margin on the left side of the abdomen 4 ` below and slightly lateral ward of the unbalicus, 1-7/8' to the right of the middle line of the body enteriorly. (5) One hole‑like punctured gun shot wound 1 ' in circum ference x cavity of the abdomen 2 ` below the middle part of right illiac crest on the right buttock. Injury No. 2 is the continuation of injury No. 1 and the injury Nos. 4 and 5 are one injury. The soft parts on and around all the injuries were infiltrated with blood and blood closets. On further dissection of injury No. 2, the doctor found that the right 4th rib was shattered. The right lung was perforated and the right 3rd rib was also shattered on dissection of injury No. 3 it was found that the lower border of the liver and spleen was perforated. On further dissection of injuries Nos. 4 and 5 he found the right hipbone, small intestines perforated. The abdomenal cavity contained 6 ` ounce of blood and blood clot, right side of the thoracil cavity contained four ounces of blood and blood clot. Two gun‑shot masses were removed by the doctor and handed over to the escorting constable. In the opinion of the doctor death was due to shock and haemorrhage of the gun‑shot wounds which were ante‑mortem and homecidal in nature. In his cross‑examination the doctor opined that the victim could not die instantanously as the masses did not penetrate the heart. In support of the prosecution story the four persons who were said to have escorted the deceased at the time of the incident, namely, P. W. 2 Noor Ahmed, P.W. 3 Surat Alam, P.W. 4 Zabal Mulluk and P. W. 9 Md. Hussain figure as eye‑witnesses in this case. It may be mentioned here that Noor Ahmed is distantly related to the deceased Surat Alam is an uncle of Fazlul Huq a son‑in‑law of the deceased; P. W. 4 Zabai, Mulluk deposed that he had married a Fupato, sister of Fazlul Huq and he works under him and P. W. 9 Md. Hussain deposed that Fazlul Haq is his uncle and he mostly resides at Chandpur where he looks after the salt business of Fazlul Huq. Noor Ahmed deposed that after witnessing a football game on that date he met the deceased Mozahar Ahmed in a tea stall at Iddgaon bus stop in the afternoon when the other three witnesses were also with him. As the escort of the deceased did not reach at that time he and the three others volunteered to escort the deceased and thereafter the deceased Chairman Mozahar Ahmed rode on a horse while the others escorted him on foot, Noor Ahmed was ahead of all while the other three were behind the Chairman. When they went up to one‑fourth of a mile to the east of the Bhomoria Ghona Forest Office late at Ashar prayer time, all on a sudden he heard a gun‑shot and he looked around. He saw four miscreants and then he heard sound of two more gun shots. He turned round and saw Mozahar Ahmed falling on the ground from the horse. He ran away from the place out of fear. There were some more miscreants but the witness did not mark who they were. Then he went to the forest office and called people to bring the injured Chairman. Sukkur Bali, Md. Hussain and Jebal Mulluk, Surat Alam told him all about the occurrence and that Asmat Ali, Ghulam Kader, Badi Ahmad fired gun‑shots at the Chairman Mozahar Ahmed from the top of a tilla which was on the south‑east of the place of occurrence. The witness also said that appellant Asmat Ali had a single- barrel gun in his hand while Ghulam Kader bad a lathi in his hand. It transpired in his cross‑examination that on coming back he found Sahar Mulluk's mother with a candle light and a basket on her side. The Chairman did not talk. He met Surat Alam, Jebal Mulluk and Md. Hussain near the tea‑stall of Lai Md. and there they told him only the names of the accused Asmat Ali, Ghulam Kader and Badi Ahmad and Ahmad Hussain but not their fathers' names and addresses. Finally he admitted that deceased Mozahar Ahmed Sikdar was distantly related to him. P. W. 3 Surat Alam corroborated Noor Ahmed upto escorting the deceased Mozahar Ahmed on that date and that when they reached to a point about one -fourth of a mile to the south‑east of the Bhomariaghona Forest Office he heard the sound of a gun‑shot where the Chair man gave a cry "I am finished" and he fell down from the horse. He saw a few persons getting down from the tilla he could recognize only one Ahmed Hussain who is not before us. He was, however, declared hostile by the prosecution and being examined he stated that he did not tell Lai Md. and Noor Ahmed the names of the appellants and others meaning that he saw them killing the deceased. It transpired from his cross‑examination that he did not see P. W. 5 Sukkur Bali and Md. Ishaque and Ahmed Sobhan. P. W. 4 Zabal Mulluk, the third eye‑witness corroborated the other two and specifically stated that when he heard the gun‑shot the Chairman gave a cry and fell down from his horse. Thereafter he and other witnesses hid inside the forest out of fear while Noor Ahmed fled away towards the east. He saw four persons on the pathway where the Chairman fell but he did not recognise any person there. Thereafter he went to Lal Mohammad's tea‑stall where P. W. Sukkur Bali told him that Asmat Ali and Ghulam Kader had finished the Chair man. He does not know the accused. He was also declared hostile by the prosecution and being examined by the Public Prosecutor he denied that he stated before the committing Court that Sukkur Bali told him of the Chairman's telling him the names of the appellants and others. He also denied that he told the complainant Lai Muhammad and Noor Ahmed that he saw gun in the hand of Asmat Ali and Badi Ahmad. He admitted that he married the Fupato, sister of Fazlul Huq and he works under him. He further stated that Sukkur Bali had told him about the names of the accused persons near Lal Mohammad's tea stall in presence of the Forest Ranger and others, but Sukkur Bali did not tell him the fathers' names and addresses of the accused. When the Chairman was brought near Lal Mohammad's shop he was dead. He had also admitted that Sukkur Bali works under Fazlul Huq. The last eye‑witness P. W. 9 Md. Hussain stated that be heard sound of a gun‑shot all of a sudden and he saw the Chairman falling down from his horse on the ground. At that time he saw 7/8 people on the hillock to the east and they were coming down. Out of fear he fled away southwards and he recognised only one Badi Ahmad among those people. He was also declared hostile by the prosecution and being examined by the learned Public Prosecutor he denied that he stated before the committing Court that he had recognised the two appellants and one Badi Ahmad. He further admitted that the deceased‑ is his uncle and that Fazlul Huq has salt business and that the witness resides mostly at Chandpur in connection with the salt business of Fazlul Huq. The above is the sum acid substance of the evidence of the eye‑witnesses examined in this case. Looking into the evidence carefully, we find that none of them did specifically say that he could recognise any one of the appellants as assailants of Mozahar Ahmed Sikdar at that fateful time from amongst the assailants. Accordingly we find that the evidence of the so‑called eye witnesses lead us nowhere to fasten the guilt round the neck of any one of the appellants. The next type of evidence is that of dying declaration as evidenced by P. W. 5 Sukkur Bali and P. W. 10 Md. Ishaque. We have already seen P. W. 4 Zabal Mulluk admitting that Sukkur Bali works under Fazlul Huq, the son‑in‑law of the deceased. Both of them stated that they were returning home after day's work as wood‑cutters in that afternoon along with one Abdus Sobhan, who had, however, been not examined in this case. P. W. 5 Sukkur Bali deposed that he heard a gun‑shot and then he went to a place which is near Pattariaghona south east of Bhomoria Ghona and there he saw Sahar Mulluk's mother holding a candle‑stick and she told the witnesses that Mozahar Ahmed Sikdar was lying there seriously injured. He went to the deceased when the deceased told him and his companions that the appellants Asmat Ali and Ghulam Kader had finished him. P. W. Noor Ahmed arrived sometime after. The forest Ranger also came there, Zabal Mulluk, complainant Lal Mohammad and others so came there and he stated before them that Mozaliar Ahmed Sikdar had told him that he was killed by Asmat Ali and Ghulam Kader. He knew that two appellants by face from before. Sahar Mulluk's mother was near the dead body at that time. In his cross‑examination it transpired that Sahar Mulluk's mother is the sister of his aunt. He had no relationship with any one of the accused and he did not know their names before. The deceased told him the names of the accused and there were many other persons present there. The injured Chairman did not tell him the fathers' names and addresses of the persons who killed him. He spoke with difficulty and very slowly and he was groaning. When the witness carried the deceased from under the Jarul tree to the tea‑stall he did not talk. He did not tell any body that the Chairman told him the names of the accused except only to P. W. Lal Mohammad and another person. He did not tell the police that when he met P. W. Lal Mohammad told him about the occurrence and the names of the accused as heard from the deceased. He further stated that there were persons named Ghulam Kader and Asmat Ali in his Mohalla. Finally he stated that when the Chairman told him about the names of the accused, he understood that the accused Ghulam Kader and Asmat Ali set others to kill him P. W. 10 Md. Ishaque deposed that while he was returning in that afternoon after day's work suddenly he heard a sound of gun‑shot and he saw Noor Ahmed ran towards north to the stream side. He found Mozahar Sikdar lying there with bleeding injuries. He was bare‑bodied. He heard two more gun‑shots. The Chairman told him that Asmat Ali, Ghulam Kader had arranged to kill him. In his cross‑examination he stated that he met Noor Ahmed on that day at a place about 2/21 miles from the place of occurrence and P. W. Noor Ahmed had told him that deceased Mozahar Ahmed Sikdar had been need. He further stated that the Chairman could talk but indistinctly. Finally he stated that he did not know accused Asmat Ali and Ghulam Kader. The above is the sum and substance of the evidence of P. W. Sukkur Bali and P. W. 10, Md. Ishaque who wanted the Court to believe that the deceased Mozahar Ahmad had made a dying declaration before them that he was injured by the appellants. We should remember that none of the four eye‑witnesses, who could not personally identify any one of the assailants of the deceased at that fateful time did speak of the dying declaration to have been heard by him. P. W. 4 Zabal Mulluk deposed that Maulvi Sayedullah the Ranger of the forest was present at that time and we have got from the evidence of both of P. Ws. 5 and 10 that Sahar Mulluk's mother was present near the deceased with a burning candle‑stick. Both of them further stated that they bad another companion Abdus Sobhan with them at that time. But it is significant that none of them has been examined by the prosecution and no reason has been assigned for this omission. On a careful scrutiny of the evidence of p W. 5 Sukkur Bali, we find that he understood from the statement of the deceased who admittedly could speak indistinctly and was groaning and that was because he was at the last throe; of his life that the deceased wanted to tell him that the appellant had set others to kill him. The other witness Md. Ishaque stated unambiguously that the Chairman had told him that Asmat Al and Ghulam Kader had arranged to kill him. Now setting up or arranging for killing a person does not necessarily mean taking active part in the offence and in the instant case we find that there is no evidence worth the name to implicate the two appellants before us to have taken an active part in doing him to death. While assessing the veracity of the prosecution witnesses, the trial Court has observed: "From the demeanour of all the prosecution witnesses in this Court I find that not only some of them turned hostile and deliberately concealed the truth regarding the occurrence but they also tried to distort facts once stated in the course of their examination‑in‑chief." Where everyone of the prosecution witnesses were toying and conquetting (sic) with truth at every stage and where there are sol many defects and discrepancies in their evidence, no conviction can be based on the evidence of any one of them. Mr. Farid Ahmed, the learned Advocate for the appellants, submitted before us that the learned Sessions Judge has used materially in this case the evidence of P. W. 9 Md. Hussain before the committing Magistrate though his evidence was put in under section 145 of the Evidence Act. We find from the judgment that the learned Sessions Judge has referred to the evidence of P. W. 9 Md. Hussain before the committing Court put in under section 145 of the Evidence Act substantially and it appears that he laid much weight upon such evidence. In the case of Hazrat Ali v. Crown (1DL R 42) it was ruled by this Court that "the statement before the committing Magistrate can be used only under section 145 of the Evidence Act for the purposes of impeaching the credit of the witness. A statement so used is not substantial evidence before the Sessions Judge, and can only be used for the credit of the witness." In view of such rule of law regarding the evidence of P. W. 9 Md. Hussain put in under section 145 of the Evidence Act, we think that the learned Sessions Judge was wrong in using it in the manner he did. Secondly, it was urged by Mr. Farid Ahmed that the learned Sessions has used the F. I. R. in the manner showing that he treated it in a substantive manner so as to find the guilt of the appellants in this case. It has been emphasised by this Court more than once that the statements made in the first information report can be used only for the purpose of contradicting of corroborating the informant and that it cannot be treated as substantive evidence in any manner. Although the statement made in the first information report can be looked into with a view to find the prosecution story as a whole as set out in the earliest stage, it cannot be used in any way to form the basis of conviction or substantively in evidence. Lastly it may be pointed out that the learned Sessions Judge has made an order of sentence which is not authorised by law. Under Section 302 of the Pakistan Penal Code the sentence provided is "punishment with death or transportation for life and shall also be liable to fine." Section 53 of the Pakistan Penal Code provides for sentences a Court is entitled to inflict, but there is no provision for imprisonment for life. Where by an order the Court makes a sentence which is not` authorised by law, the order is not legal. It seems to us that the learned Sessions Judge might have been misled by making a reference to an Indian edition of the Penal Code, but it is expected that the Court will be more careful in this regard in future inasmuch as India only has amended the Penal Code with a view to substitute "the sentence of transportation for life" to "imprisonment for life", but this is not the case in Pakistan. In the result, the appeal is allowed and the order of convic tion and sentence is set aside. The appellants be set at liberty forthwith, if not wanted in any other connection. A. SUBHAN CHOUDHURI, J.‑I agree. Appeal allowed.