1969 PLP 584 (SCMR)

Azizullah K. Shaikh, Advocate Supreme Court instructed by Muhammad Ibrahim Memon, Attorney for Petitioner. Rustam J. E. Kaikobad, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State. Nemo for Respondent No. 2 (in Petition No. K‑14/68). Dates of hearing : 21st and 22nd May 1969. SAJJAD AHMAD, J.‑Ilahi Bakhsh and his son, Bangul Khan, (the two appellants herein), along with another son of alnhi Bakhsh named Rahim Bakhsh, were tried by the learned Additional Sessions Judge, Jacobabad, under section 302/347, P. P. C. for committing the murder of their relation Raza Muhammad, in furtherance of their common intention at about 9 a.m. on the 31st of July 1965. Another item of charge against them was under section 13 (d) of the West Pakistan Arms Act. Rahim Bakhsh was acquitted of the charges, but the appellants were convicted on both. Bangul Khan was sentenced to death and Ilahi Bakhsh to transportation for life, on the murder charge, and each of them was sentenced to undergo rigorous imprison ment for one year on the second charge under section 13 (d) of the Arms Act. The appellants filed an appeal to the High Court against their convictions and sentences. The State filed an appeal against the acquittal of Rahim Bakhsh, which was preceded by a revision petition by Muhammad Moosa, a son of the deceased, for the same purpose. The High Court dismissed both the appeals, thereby confirming the convictions and sentences of the appellants as awarded by the trial Judge. The deceased Raza Muhammad was a first cousin of the appellant Ilahi Bakhsh, their respective fathers being real brothers inter se. There was, however, no love lost between them as they got involved in several criminal cases against each other along with their other kinsmen and associates. Some months before the present occurrence the appellants with some others, had attempted on the life of the deceased who escaped unhurt but his mare was injured. The immediate cause of the murder was the dispute between the deceased and the appellants over 276.36 acres of land which belonged to one, Mundhoo Khan, situated in Dell Jahangirabad. By a registered deed ENh. D/26 dated the 28th of April 1954, Raza Muhammad took this land on lease for a period of 20 years commencing from 1956‑57 in the names of his son Muhammad Usman and some others. Ilahi Bakhsh was interested in getting this land in exchange for his own and succeeded ultimately in getting it, but the deceased refused to part with its possession during the currency of his lease. This dispute was referred to the arbitration of a Nekmard of their community, named Ghulam Muhammad, who made an award that the appellant Ilahi Bakhsh was to sell the land to the deceased for Rs. 27,000, out of which Rs. 14,000 were to be paid in advance and the balance on the attestation of the mutation in favour of the deceased. The deceased paid the advance money to Ilahi Bakhsh, but did not pay the balance unless the mutation was attested in his favour as agreed between the parties. Ilahi Bakhsh, however, insisted on the payment of the money without waiting for the mutation. It was alleged by the prosecution that on the day of occurrence (31st of July 1965), at about 9 a.m. the three accused persons came in front of the otak of the deceased, each armed with a double‑barrel gun. The deceased at the time was standing on a bullock‑cart track at a small distance from his otak preparing to go to his lands to supervise the transplantation of rice. His sons, Muhammad Moosa, Abdul Rahim and his brother‑in‑law, Shah Bakhsh, were present at the time. On reaching the spot, Ilahi Bakhsh demanded the payment of Rs. 13,000 from the deceased and on the latter's refusal, he and Bangul Khan both fired one shot each at the deceased, leading to his instantaneous death. Rahim Bakhsh threatened the witnesses with a similar fate if they dared to come near. The occurrence was reported at the Police Station by P. W. Muhammad Moosa at 11 a. m. the same day. A search was carried out for the arrest of the accused. Bangul Khan was arrested at Kandhkot at 12‑30 p.m. the same day. Rahim Bakhsh remained missing till the 5th of August 1965, and Ilahi Bakhsh was not traceable till his surrender in the Court on tile 27th of August 1965. The deceased had suffered several gun‑shot wounds which, according to the medical evidence, were the result of at least two shots. The defence was a complete denial of the knowledge of the occurrence. It was alleged that the charge against the accused had been laid on account of previous enmity. Both the appel lants pleaded alibi before the committing Court, but Ilahi Bakhsh did not pursue him at the trial. Bangul Khan produced two defence witnesses, namely, Muhammad Ayub and Khuda Bakhsh, both of whom were officials of the Court of the F. C. M. Kandhkot. The first‑named produced the record of the case (Criminal Case No. 402 of 1965 State v. Sataroo) in which Bangul Khan figured as a defence witness and the second, namely, Khuda Bakhsh, deposed that Bangul Khan was present in the Court at Kandhkot from 7 a.m. to 10 a m. on the 31st of July 1965. He referred to the entries in the record to support his statement. This evidence however was disbelieved by the trial Judge and also by the High Court. The ocular evidence in the case was furnished by the state ments of P. Ws. Muhammad Moosa, Abdur Rahim and Shah Bakhsh. All the three are close relations of the deceased, the first two being his sons and the third, Shah Bakhsh, being his wife's brother. The relationship of Shah Bakhsh with the deceased was stoutly denied by the prosecution witnesses, including Shah Bakhsh himself, although it was proved on the record and Shah Bakhsh himself had admitted in his police statement under section 161, Cr. P. C. with which he was confronted, that Mst. Ladhan, the junior wife of the deceased, was his sister. The learned Judges of the High Court have termed it as a sheer stupidity on the part of Shah Bakhsh and P. Ws. Moosa and Abdur Rahim, to deny the existence of this relationship. It was indeed a clumsy effort on the part of the prosecution to show that their case was proved at least by one witness who was indepen dent. This circumstance obviously provided a strong basis for the defence to argue that the prosecution evidence, which was highly interested and biased, stood totally exposed as false by its attempt to conceal a patent fact of relationship of Shah Bakhsh with the deceased, which obviously was undeniable. Both the trial Judge and the High Court have taken into account the infirmities in the ocular evidence which consisted of interested and partisan witnesses and was further weakened by the exposure of its falsity on the point of the relationship of P. W. Shah Bakhsh with the deceased. Nonetheless, they have accepted it in proof of the guilt of the appellants for the reasons, firstly, that motive on the part of the appellants to commit this crime was established and, secondly, that the murder had taken place right in front of the otak of the deceased and the presence of the three witnesses on the spot who were all his close relations was natural. They have found it difficult to accept the defence argument that the deceased was done to death before dawn, under the cover of darkness by some unknown person. The scene of occurrence was the cart‑track opposite the otak of the deceased, which showed that he was there during business hours of the day to get ready for his field work as alleged by the prosecution. The objection that the place of occurrence being near the village mosque, school and the shop of a Hindu as noted in the site plan some independent evidence could have been made available, was repelled on the ground that the school and shop were closed at the time and the neighbours living round about must have left for their fields in the early morning. The learned Counsel for the appellants has criticized the ocular testimony before us on the same ground of partisanship and interestedness, stating further that as the stomach of the deceased was found empty it was a strong indication to show that the occurrence had taken place much earlier in the morning when the deceased had had no opportunity to eat anything. It was submitted that if the occurrence had taken place at 9 a.m. as alleged, the deceased must have taken his morning meal in the usual course, which is negatived by the fact of his empty stomach at the time of the post‑mortem. There is no evidence on the record to show as to what was the normal time for the deceased to take his morning meal nor was any question put to the witnesses as to whether or not the deceased had taken any meal on that morning. We are of the opinion that the High Court was right in not rejecting the ocular evidence outright merely because it came from interested quarters. As stated by the High Court, it was a day‑light occurrence which took place near the otak of the deceased, the presence of the relation eye witnesses was not an unnatural circumstance and there was no reason for them for a false substitution of innocent persons fog the real. Rahim Bakhsh accused was acquitted by the trial Judge on benefit of doubt, by way of abundant caution and the High Court has confirmed it because the role attributed to him was merely of a watcher who did nothing except to hold out threats This was really not necessary as both the appellants were them selves armed with guns which were good enough to deter anyone from coming near them. In corroboration of the ocular evidence the trial Judge took into account the fact that the appellant Illahi Bakhsh had absconded and did not surrender himself till the 27th of August 1965. Further piece of corroborative evidence was found in the fact that both Ilahi Bakhsh and Bangul Khan had set up false pleas of alibi which the former had abandoned at the trial but in which the latter persisted which was found to be false. The learned trial Judge in using the false defence of alibi as a corroborative circumstance against the appellants, has cited a quotation from a judgment of the Calcutta High Court reported in 35 Cr. L J 1335 to the following effect :‑ "Whenever a defence of alibi is set up and that defence utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was, then in all probability he was where the prosecution says he was." The learned Judges in the High Court commenting on this have observed that "it would perhaps be going too far to hold that the unproved alibis of the two appellants provide corroboration of the eye‑witness account given by the prosecution witnesses, yet it is clear that the failure of the appellants to prove their alibis does recoil to their disadvantage. However, the prosecution case will still have to stand on its own legs." With all respect, if an accused person in his defence is entitled to take up whatever plea he likes, true or false, the fact that he fails to establish all or anyone of them, should not recoil to his disadvantage for the drawing of any inferences regarding his guilt which has to be clearly and satisfactorily established by the pro secution. In criminal cases, the onus always remains on the prosecution to prove its case. As for the alibi plea of Bangui Khan appellant, according to the evidence led by him in defence, it was proved that he had been earlier cited as a defence witness in case State v. Sataroo pending in the Court of the Magistrate, Kandhkot, in which a hearing was held on the 31st of July 1965, i.e., the date when the murder of Raza Muhammad took place. This is proved from the judicial record produced by D. W. 1, Muhammad Ayub. According to the testimony of the other D. W., Khuda Bakhsh, Reader of the Court, Bangui Khan appellant was present in the Court from 7 a. m. to 10 a. m. on that day, which is confirmed by the typed order of even date over the signatures of the Presid ing Officer contained in the order sheet. According to this evidence, there was a positive assertion of Bangui Khan's presence in Kandhkot at the relevant time, i. e., the time when Raza Muhammad was allegedly murdered in his village situated at a distance of four to five miles from Kandhkot. There was no rebuttal of this evidence by the prosecution. The Presiding Officer of the Court was summoned as a P. W. by the prosecution, but was given up. The defence wanted to examine him as a defence witness but it left the matter at that and did not examine him. The Courts below have rejected the testimony of Khuda Bakhsh on the ground that he was handling the proceedings of the case as a Court Reader and having at one time remained a school fellow of Bangui Khan, he may have obtained the signatures of the Magistrate on a typed order to assist Bangui Khan in his plea of alibi. It is also pointed out that the summons on Bangui Khan for his appearance on the date of hearing which were issued under the signatures of the aforesaid Reader, were not regularly served on him by the police as is normally done. These factors do certainly create a suspicion about the veracity of the alibi plea of Bangui Khan but do not totally blot out the other side of the picture that his presence in the Court at the stated time as proved by positive evidence, including a regular judicial order duly signed by the Presiding Officer, may be true. The Court hours during the days of occurrence at Kandhkot com menced from 7 a.m. and if Bangui Khan was to attend the Court as a witness, he could not have delayed his departure till after 9 a.m. The fact that he was arrested at Kandhkot at 12‑30 p. m. confirms that he was in Kandhkot on the date of the occurrence. The deduction of the learned trial Judge which has been accepted by the High Court that Bangui could have easily reached Kandhkot at 1 p.m. after committing the murder of Raza Muhammad is not very safe to make. We feel that this evidence of alibi produced by Bangul creates at least a reasonable doubt about his presence and participation in the crime. If the harm to the deceased was caused by two shots and each of the two appellants was allegedly armed with a double‑barrel gun, it is difficult to comprehend why one of them did not do the firing from both the barrels instead of both firing one shot each. After giving a careful consideration to the plea of alibi taken by Bangui Khan and evidence in support thereof and putting it an juxtaposition with the prosecution case, there appears a reasonable doubt regarding the guilt of Bangui Khan for which the benefit must go to him. He, therefore, acquitted and his convictions and sentences are set aside. There is no such circumstance or element of doubt in regard to Ilahi Bakhsh whose guilt is satisfactorily established by ocular evidence. The plea of alibi set up by him at the inquiry stage showing that he was hospitalized on the day of the occurrence was not only not proved but found to be definitely false in view of his own conduct in not pursuing it at the trial. We uphold his convictions and sentences and dismiss his appeal. Petition No. K‑14 of 1968 for special leave to appeal against the acquittal of Rahim Bakhsh, is without any merit and there is no legitimate basis for re‑examining his ease. He has been given the benefit of doubt by both the Courts below on very cogent grounds. The petition is dismissed. By a short order dated the 22nd of May 1969, we had directed the acquittal of Bangui Khan appellant and the dismissal of the appeal of Ilahi Bakhsh and of Petition No. K‑14 of 1968. This judgment contains the reasons for that order. Appeal dismissed.