P L D 1969 Lahore 319 (PLP)

BASHIRUDDIN AHMAD, J.‑Abdul Hamid (18) was tried under section 302, P. P. C. for the murder of Munir Ahmad on the 29th of October 1964 by the learned Sessions Judge, Multan (Camp Muzaffargarh) who acquitted him. The State has appealed. The father of the deceased filed Cr. Revision No. 534/66 questioning the correctness of the order of acquittal. This judgment will dispose of the appeal as well as the criminal revision.

2. Briefly narrated the facts of the case are that the respondent Abdul Hamid had immoral connection with Munir Ahmad and when the latter discontinued it at the bidding of his father, the respondent felt annoyed and retaliated by firing with a double barrelled gun at the deceased while he was playing volley ball on the 29th of October 1964 at 5‑30 p. m. at Jatoi Shamali, Muzaffargarh District, with the result that the unfortunate boy died at the spot. Khair Muhammad, the father of the deceased, Abdul Majid, his cousin, and Ch. Sardar Muhammad, Sub- Inspector witnessed the occurrence. The respondent after perpetra ting the crime ran in the direction of his house. He was given a chase by Ch. Sardar Muhammad but he could not get hold of him. He then returned to the spot. The respondent appeared before Ch. Muhammad Bashir, Sub‑Inspector, Police (Rtd.) for help in the matter. Meanwhile Khair Muhammad went and lodged the report at Jatoi Police Station, at a distance of a furlong from the scene of the tragedy, at 5.50 p.m. the same day.

4. After scribing the report Sub‑Inspector Ilyas Ali (P. W. 9) left for the spot and as he came out of the building of the police station he met Ch. Muhammad Bashir who accompanied Abdul Hamid respondent. The latter had a double‑barrelled shot‑gun P. 1 which contained an empty cartridge in one of its chambers. The Sub‑Inspector took into possession the shot‑gun and the empty cartridge and sealed the same into parcels separately. Thereafter, he proceeded to the spot taking along with him Abdul Hamid respondent, Khair Muhammad and Ch. Muhammad Bashir. He found the dead body of Munir Ahmad lying in the volley‑ball ground opposite to the Veterinary Hospital. He prepared the injury sheet and the inquest report and then despatched the dead body to the mortuary for post‑mortem examination. He scrapped blood‑stained earth from the spot and sealed it into a parcel. In the course of the investigation Nazar Muhammad, the elder brother of the respondent, produced licence P. 3 relating to the shot‑gun P. 1 in the name of Abdul Hamid. It was taken into possession by the police vide memo. P. F. Abdul Hamid was arrested the same day.

5. The autopsy on the deceased's dead body was conducted by Dr. Abdul Rashid P. W. 4 on the 30th of October 1964 at 12‑30 p. m. The deceased had :‑ (1) A circular wound " in diameter, 2 " outside the left nipple, going inwards. (2) A circular wound, " in diameter, 1 " to the outer side of injury No. 1 (3) A cross wound (entry and exit visible through the skin of inner side of left arm) (upper part). (4) A circular wound " in diameter on the lower part of left scapula (shoulder blade) (5) A circular wound, " in diameter on the upper part of vertebral column in between two shoulder blades. (6) A circular wound, " in diameter on the left side on the level of 9th rib outer side. (7) A circular wound, " in diameter on the left side of back 2" away from the middle line. (8) A circular wound, " in diameter in the left buttock upper part. Death, in the opinion of the doctor, was due to gun‑shot wounds, particularly injuries Nos. 1 and 2, which pierced through the heart.

6. The respondent pleaded not guilty to the charge and denied the prosecution allegations against him. He admitted that the shot‑gun P.1 belonged to him, but expressed ignorance as to how the police got hold of it. He ascribed the case to enmity. The statement which he made in this regard at the trial, is reproduced below for the sake of convenience:‑ "I have been falsely involved in the case at the instance of my elder step‑brother Sardar Nazar Muhammad, my deceased father Sardar Nasrullah Khan had given me 28 squares of land over and above my Sharai share and my step brothers wanted that I should share with them these 28 squares of land but I had declined which resulted in criminal and civil litigation between me and Sardar Nazar Muhammad and other brothers."

7. No evidence was produced in defence.

8. At the trial Khair Muhammad P. W. 5, Abdul Maid P. W. 6 and Ch. Sardar Muhammad P. W. 7 gave direct evidence. Ch. Muhammad Bashir, Sub‑Inspector, Police (Retired) deposed about the extra‑judicial confession made to him by the respon dent immediately after the occurrence when he approached him for help in the matter. Ch. Muhammad Bashir took the respondent along with the shot‑gun P. 1 to the Thana where the gun in question along with empty cartridge was taken into possession by the police. Ch. Muhammad Bashir deposed that on the day of the incident he was present at his shop when Abdul Hamid came there with a gun and told him that he had killed Munir Ahmad and asked for help.

9. The deceased was playing volley‑ball. Khair Muhammad and his nephew Abdul Majid were watching the game. Ch. Sardar Muhammad was also one of the players. In nutshell, the ocular evidence is that while the deceased was playing volley ball the respondent fired at him with the shot‑gun with the result that Munir Ahmad was seriously injured and dropped to the ground dead.

10. The trial Judge disbelieved Ch. Muhammad Bashir. He found that Gul Sher, a brother of Ch. Muhammad Bashir, was helped by Nazar Muhammad, brother of the respondent, in the B. D. Elections and concluded from this circumstance that Ch. Muhammad Bashir was under obligation to Nazar Muhammad with whom the respondent had enmity and Ch. Muhammad Bashir decided to give evidence because Nazar Muhammad had obliged his brother and in the circumstances, there was a remote possibility of the respondent having gone to Ch. Muhammad Bashir for help in the matter. The trial Judge also found the evidence of this witness to be inconsistent with the other evidence as regards the time of the actual occurrence. It is in the statement of Ch. Muhammad Bashir that on the day of the incident an hour or three‑quarters of an hour before sunset Abdul Hamid respondent came to his shop with a gun in his hand and confessed that he had killed Munir Ahmad and asked for help from Ch. Muhammad Bashir. The time of the occurrence mentioned in the First Information Report Exh. P. A. was 5‑35 p. m. Khair Muhammad, the maker of the First Information Report, mentioned in his statement, at the trial, that on the day of the incident at about 5 or 6 p. m. his son Munir Ahmad was playing volley‑ball. Khair Muhammad along with his nephew Abdul Majid was watching the game. Ch. Sardar Muhammad was also one of the players. The respondent appeared on the scene all of a sudden and shot the deceased dead by means of a gun. Ch. Sardar Muhammad gave the time of the occurrence as 5‑35 p. m. He stated that he reached the volley‑ball ground at 5‑15 p. m. on the day of the incident. The notion about the time in our country is proverbially vague. Since the report to the police purports to have been taken down at 5‑50 p.m. at Jatoi Police Station at a distance of one furlong from the scene of the tragedy, the time of the occurrence mentioned by Ch. Sardar Muhammad in his statement, at the trial, appears to be more accurate. The time of the arrival of Abdul Hamid at the shop of Ch. Muhammad Bashir as mentioned by him in his statement, at the trial, seems to be the result of some confusion on his part because we find that Ilyas Ali after recording the report, set out for the scene of the crime and met Ch. Muhammad Bashir outside the building of the police station. He was accompanied by Abdul Hamid respondent, who carried a double‑barrelled shot‑gun. Abdul Hamid was taken into custody. Sh. Ilyas Ali took into possession shot‑gun P. 1 which had an empty cartridge in its chamber. Sh. Ilyas Ali drew up the sketch of the gun. He sealed the gun as well as the empty cartridge into parcels separately and then proceeded to the spot. It is thus clear on reference 'to the evidence of Ch. Sardar Muhammad and Sh. Ilyas Ali that the occurrence took place round about 5‑30 p.m. The time given by Ch. Muhammad Bashir regarding the visit of Abdul Hamid to his shop is thus proved to be inaccurate. Either his idea about the time was vague or he deliberately gave the time as an hour or three quarters of an hour before sunset in order to help Abdul Hamid. Ch. Muhammad Bashir also admitted, duria‑cross‑examination, that he examined the barrel of the gun P.1 and did not find any evidence in any of the barrel of the gun showing that it had been recently fired. Any way, there is the statement of Ch. Muhammad Bashir in support of the extra-judicial confession by the respondent that he shot Munir Ahmad dead by means of a gun. Abdul Hamid was possessed of a gun when he approached Ch. Muhammad Bashir at his shop. Abdul Hamid approached Ch. Muhammad Bashir for help to avoid the rigors of investiga tion. Ch. Muhammad Bashir has no direct enmity with the res pondent. It is true that his brother Gul Sher was supported at the time of B. D. Elections by Nazar Muhammad brother of Abdul Hamid respondent, who has litigation, civil and criminal both with Nazar Muhammad but there was hardly any interval of time between the shooting and when Abdul Hamid went and confessed to Ch. Muhammad Bashir to enable Nazar Muhammad to use his influence with Ch. Muhammad Bashir and prevail on him to give false evidence against the respondent. We believe the version of Ch. Muhammad Bashir as regards the extra judicial confession alleged to have been made to him by Abdul Hamid respondent. The approach of the learned Sessions Judge to the evidence in proof of the extra judicial confession by the respondent to Ch. Muhammad Bashir was not correct. We hold that Abdul Hamid confessed before Ch. Muhammad Bashir that he shot Munir Ahmad dead. The respondent denied having made any confession to Ch. Muhammad Bashir. Since there in no evidence to connect the empty cartridge with the gun P.1, there is, in opinion, no corroboration of the retracted extra‑judicial confess in alleged to have been made by Abdul Hamid respondent to Ch. Muhammad Bashir. Even if this piece of the evidence is exclude from consideration, still there is direct evidence in the case which we now proceed to examine in order to find out if it connected is Abdul Hamid with the commission of crime beyond the pale of doubt.

11. Direct evidence in the case is to be found in be statement of Khair Muhammad, father of the deceased Mnir Ahmad, Abdul Majid, a cousin of the deceased and Ch. Sardar Muhammad. The gist of their evidence is that at the time of ‑he incident Munir Ahmad was playing volley‑ball. Khair Muhammad and Abdul Majid were watching the game sitting on a bench. Ch. Sardar Muhammad was one of the players. They heard the report of a gunfire. Khair Muhammad saw Abdul Hamid respondent present with a gun at a distance of 18 Karams. Khair Muhammad found that his son had fallen having been hit with the gun‑shot. Khair Muhammad is a barber. So is Abdul Majid. Abdul Hamid respondent is the son of Nasrullah Khan, the head of Jatois. Nasrullah Khan left behind two widows, eight sons and nine daughters. The sons are from three of four different wives. Abdul Hamid is the only son of his mother. Nazar Muhammad is the head of the family. Even if it be taken as correct that Abdul Hamid has civil and criminal litigation with Nazar Muhammad, still that is not sufficient, by itself, to hold that the poor barber whose son was killed was either not present and did not see the occurrence or that he decided to let go the real culprit and instead implicated Abdul Hamid at the instance of Nazar Muhammad. The reason given by Khair Muhammad and Abdul Majid for their presence at the time of the occurrence is convincing and we find nothing improbable in their going to watch the game of volley‑ball towards the evening when Munir Ahmad was also one of the players. The facts that it tools Khair Muhammad only 15 minutes to go and lodge the first information report confirms that he was present at the spot when the occurrence took place. Had he not been there, the report to the police could not be so prompt. Khair Muhammad is the Kamrnin of the family of Abdul Hamid respondent and is a village menial he could not have possibly risked involving Abdul Hamid in a false case. Khair Muhammad worked as a barber for Nasrullah Khan, father of Abdul Hamid. The house of Khair Muhammad is at a distance of five Karams from the volley‑ball ground where the occurrence took place. There are other houses in the locality as well. The presence of Khair Muhammad at the time of the occurrence looks to be natural. There was another reason why Khair Muhammad and Abdul Majid used to follow the deceased to the school and the play ground. Prior to the occurrence the deceased had developed deep intimacy with the respondent. Khair Muhammad suspected that Abdul Hamid used Munir Ahmad for immoral purpose. He exerted his son to discontinue his relations, with Abdul Hamid, who as a landlord, took it ill. He considered this act on the part of Khair Muhammad as an front and threatened Munir Ahmad. Fearing reprisal from Abdul Hamid, the poor barber would shadow his son. Abdul Majid also used to accompany Munir Ahmad wherever he used to go. Khair Muhammad omitted to mention in his report Exh. P. A. that his son broke off his relations with Abdul Hamid at his instances but the omission, in our opinion, is not material and, in no way, detracts from the evidentiary value of his statement. Khair Muhammad admitted that he did not make a report to the police when Abdul Hamid threatened them. How could a non proprietor, particularly a barber, who is a Kammin, make a report to the police about the incident and who could have taken any action even if Khair Muhammad had made a report to the police to that effect.

12. The main criticism of the evidence of Khair Muhammad and Abdul Majid was that .they were not present when the occurrence took place. It was submitted, in this connection, that Khair Muhammad did not say in his statement before the committing Magistrate that he was sitting on a bench. This is no contradiction. Similarly, if Khair Muhammad did not state to the police that Abdul Majid also kept watch on Munir Ahmad, it in no way proved that the story was contrived in order to make their presence look more probable. Khair Muhammad admitted that eight or ten persons were watching the game but he was unable to name any one of them. It is also in his statement that 14 players were engaged in playing volley‑ball. The trial Judge was of the view that the prosecution should have produced disinterested and independent witnesses from amongst the players and the spectators. He forgot that the police had an uphill task in this case. People in this country are not so public spirited and any Judge with experience of administration of criminal justice in this Province knows that independent witnesses do not volunteer evidence for fear of reprisal and here in this case there was a non‑proprietor on one side and a wealthy landlord on the other. Who could give evidence for the prosecution other than the father and the cousin of the deceased. It was lucky that Ch. Sardar Muhammad came forth to depose for the prosecution. Ghulam Hussain a close relative of the deceased, who had also seen the occurrence was given up having been won over by the members of the family of Abdul Hamid, who are not only influential but also extremely wealthy as compared to Khair Muhammad complainant. The reasons for disbelieving the story about Khair Muhammad's presence on the spot at the time of the occurrence were given by the learned Sessions Judge in paragraph 20 of his judgment which we do not propose to reproduce but feel that the reasons are neither sound nor substantial. The presence of Khair Muhammad and Abdul Majid at the time of the occurrence is confirmed by the evidence of Ch. Sardar Muhammad who is a completely disinterested and independent witness. It is altogether different that he is in the police. There are black sheep in the police but there is no material on the record to come to the finding that Ch. Sardar Muhammad gave evidence four ulterior motive. Ch. Nazir Ahmad Khan, learned counsel for the respondent, contended that the reason given by Ch. Sardar Muhammad for his presence at the spot was not convincing. The contention is wholly devoid of force. Ch. Sardar Muhammad was residing in C. I. A. Building at a distance of about 100 karams towards the west of the spot at the material time. We find nothing improbable about his going to the volley ball ground for a game towards the evening. Ch. Nazir Ahmad Khan thought that had Ch. Sardar Muhammad gone to the volley‑ball ground he should have recorded a report to that effect in the roznamcha. Ch. Sardar Muhammad had not proceeded on duty. So it was not necessary for him to have entered a report to that effect in the daily diary. He deposed that the game had just started and the sun had not set when the gun was fired by Abdul Hamid at the victim of the crime. The statement of Ch. Sardar Muhammad is consistent except that he did not state to the police that Khair Muhammad and Abdul Majid were sitting on a bench watching the game, he stated to the committing Magistrate that Abdul Majid and Khair Muhammad were the only two spectators sitting outside the ground at that time. His evidence is otherwise convincing. The story narrated by the witnesses that he went in pursuit of Abdul Hamid respondent but was unable to apprehend him is nothing but a fringe to the prosecution version. Ch. Sardar Muhammad appears to have been actuated to say so from a desire of showing his Karguzari as is usual with the policemen in this country. Most probably, he contrived the version of a pursuit of the culprit. We agree with the learned Sessions Judge that the story about the pursuit of the culprit by Ch. Sardar Muhammad was concocted in order to save himself from departmental action for allowing an offender to escape having committed a murder. We do not agree with the reasoning of the trial Judge for discarding altogether the statement of this witness who was named in the First Information Report which was promptly lodged. Ch. Sardar Muhammad had no reason to perjure himself for the sake of Khair Nuhammad or see Abdul Hamid respondent walk to the gallows at the instance of Nazar Muhammad or Gopangs who had political rivalry with Jatois. Judging the ocular evidence in this case in the light of the principles laid down by the Privy Council in the case reported as Sheo Swarup and others v. King‑Emperor (A I R 1934 P C 227 (2)) we feel that the reasoning given by the trial Judge for excluding from consideration the evidence of Ch. Sardar Muhammad who corroborated Khair Muhammad and Abdul Majid was perverse. In our opinion, it led to grave miscarriage of justice.

13. The learned trial Judge by strange process of reasoning incorporated in paragraph 24 of his judgment came to the conclusion that the medical evidence did not support the prosecution story that only one shot was fired. We reproduce below what the learned Judge said in paragraph 24:‑ "

24. We would now proceed to examine the medical evidence with a view to find if this supports the version given out by the three eye‑witnesses. The cross‑examination of the Medical Officer (P. W. 4) reveals that the witness failed to furnish sufficient date for his opinion embodied in Exh. P. C/2 wherein he had written, "It appeared that the deceased received injuries from one shot only with scattering of Chharas". The location of the injuries Nos. 5, 4, 7 and 8 as given in the report Exh. P. C. and indicated on the diagram Exh. P. C/1 clearly shows that the injuries could only be caused if the firearm was discharged from behind at the back of the victim. Similarly injury No. 3 could have resulted from frontal or back attack but injuries 1 and 2 could only be caused when the shot was fired at the left side of the victim and could never be inflicted by the pellets fired with the charge that caused injuries Nos. 5, 4, 7 and

8. Thus the medical evidence does not support the version that only one shot was fired which struck the deceased." The learned Judge drew his own conclusion which he incorporated in the above paragraph but the conclusion does not appear to us to be correct. The medical witness opined in Exh. P. C/2 that the deceased received the injuries by one shot. The conclusion reached the learned trial Judge as regards the conflict in the medical evidence and the ocular testimony is not raised on the opinion of the doctor but on his own observation. The learned trial Judge conveniently forgot that the deceased was actually playing volley‑ball and was not stationary when he was hit with pellets. The opinion of the medical witness that only one shot was fired and as a result of spread of pellets the deceased received the injuries appears to be more accurate, anal not the opinion formed by the trial Judge.

15. We have given our anxious consideration to the reasoning which prevailed with the trial Judge in disbelieving the ocular testimony particularly, the statement of Ch. Sardar Muhammad but we are unable to agree with the summoning up of his conclusion as regards the evidence in paragraph 28 of his judgment.

16. On a careful consideration of the facts and the evidence, we are satisfied that Abdul Hamid respondent and no other person was responsible for the death of Munir Ahmad. The deceased, as is clear from the medical evidence, was subjected to unnatural offence. He was a habitual catamite and that was the reason why he was weaned away from Abdul Hamid respondent who resented it. It looks Abdul Hamid had infatuation for the unfortunate boy. Abdul Hamid put Munir Ahmad to death for this reason and no other. The killing was made in a brutal manner by Abdul Hamid who was impelled by animal passion. The murder was planned and executed in cold‑blood, but as the appeal of the State has come up after a lapar of more than three years from the date of commission of the crime, we have no option in view of a number of Supreme Court decisions but to impose on Abdul Hamid respondent the lesser punishment B while convicting him under ssection 302, P. P. C. for the murder of Munir Ahmad.

17. We accept the State appeal, set aside the order of the trial Judge acquitting Abdul Hamid of the charge under section 302, P. P. C. and convict Abdul Hamid of the offence under section 302, P: P. C. for the murder of Munir Ahmad. He is sentenced to transportation for life. He is fined rupees ten thousand to be paid as compensation to the heirs of the deceased under section 544‑A, Cr. P. Code.

18. The District Magistrate, Muzaffargarh, shall now take steps to have Abdul Hamid respondent arrested and committed to jail for serving out the life sentence. S. Q. Appeal accepted.