1968 P Cr (PLP)

HAMOODUR RAHMAN, J.‑The five appellants in this case have been convicted under sections 148, 323/149 and 302/149 of the Pakistan Penal Code and all have been sentenced to death on the last count. The High Court of West Pakistan, Karachi Bench, has upheld their convictions and confirmed their sentences of death, on appeal and reference. Special leave to appeal was granted to them try this Court to re‑examine the entire evidence as theft were certain features in the evidence which appeared prima facie to indicate that due consideration had not been given to the by the Courts below. The appellants were charged for having constituted them selves into an unlawful assembly, armed with a gun and hatchets, for the common object of killing one Mahboob and. for having in prosecution of that common object, intentionally committed the murder of the said Mahboob, on the 23rd day of August 1955, at tripahri time, on Habibkot‑Sherkot Road, in the District of Sukkur. The deceased, who was a professional cattle dealer, it is alleged, had gone from Sukkur to village Sherkot to purchase buffaloes from Abdul Ghafoor (P. W. 3). After concluding a deal for the purchase of two buffaloes for Rs. 1,400, the deceased stayed the night with Abdul Ghafoor but the next morning, when he was about to leave for Sukkur, he came to learn that the appellant Allah Rakhio was in the village. This frightened him for some 8 or 9 years ago, the father of the said Allah Rakhio had been murdered and Momin, a brother of the deceased had been tried, along with two other persons, for the said murder, and acquitted: Apprehending that Allah Rakhio might be bent upon avenging that murder, he requested his host Abdul Ghafoor and the latter's cousin, Umar, who used to reside in the same house to accompany him to Sukkur, where Abdul Ghafoor could also collect the money for the buffaloes. As a precautionary measure he also requested Abdul Ghafoor to take his licensed gun along with him. They set out on foot for Sukkur at about tripahri time but when they had covered about a mile and a half and reached near Tundo village Umar sat down to urinate while the deceased and Abdul Ghafoor went ahead, The latter two had hardly advanced some 50 paces when the five appellants emerged from their place of hiding amongst the bushes on the road side. The appellant Shahim, who was armed with a double‑barrelled gun, at first fired some shots but nobody was hit. Then the appellants Allah Rakhio and Jano, who were armed with hatchets, fell upon the deceased and started giving him hatchet blows while the appellants Shafoo and Dino, who were similarly armed with hatchets, grappled with Abdul Ghafoor, snatched away his gun broke it into pieces and gave him some injuries with the blunt or reverse side of their hatchets. Umar, being threatened, kept at a. safe distance until the appellants had killed the deceased Mahboob and run away from the place. Umar then, leaving Abdul Ghafoor to guard the dead body, went to Akil village to inform the relatives of the deceased. At the village he met Gajan, a nephew of the deceased at Somahni time. The latter, on hearing of the incident, at once went to his Nekmard Shall Muhammad, at Alidio village, about a mile away. He reached there at about midnight and informed him of the incident. Then all three of them went to Lakhi Police Outpost, which was about 6 miles away from the house of Shall Muhammad. The first information report was lodged there by Gajan at 4 a.m. of the 24th August 1965. The Assistant Sub‑inspector of Police who recorded the First Information Report, proceeded immediately to the scene of the occurrence which was only 3 miles away from the Police Outpost. He reached there at 6 a.m. and took up investigation. He prepared the inquest report of the dead body and the injury report of Abdul Ghafoor who was found sitting there by the side of the dead body. Blood‑stained earth was also seized from the place and sealed into a parcel. He also found there a broken shot gun, a pair of shoes and two empty cartridge shells. These were also seized and Mashirnamas prepared of the articles seized. The body was sent to the Hospital, at Shikarpur, for post‑mortem examination. Statements of Abdul Ghafoor, Umar, Shafi Muhammad, Kalandar Bakhsh and Momin, the brother of the deceased, were also recorded by him. The Station House Officer, Begerji Police Station arrived at this stage and took over the investigation. He proceeded to Sherkot where he arrested the appellant Shafoo and Allah Dino. Then he proceeded to village Amil where the appellants Allah Rakhio, Jano and Shahim were taken into custody. Both Allah Rakhio and Shahim produced their licensed guns, which were also secured under Mashirnamas. The guns and the empty shells secured from the scene of the occurrence were sent for examination to the Ballistics Expert at Lahore. The latter received the parcels on the 30th September 1965. His opinion was to the effect that the crime empty cartridge, marked by him as C. I., had been fired from the left barrel of the 12‑bore double‑barrelled shotgun bearing No. 59041. But he could not say whether the other crime empty, marked C‑2, had been tired from the said gun. He was, however, definite that the empty C‑2 had not been fired from the single‑barrelled shotgun produced by Shahim. The double‑barrelled gun was produced by the appellant Allah Rakhio. The post‑mortem examination of the dead body revealed seven Incised wounds of which one was a gaping wound 14" x 8" x 4" in front of neck and chest, extending from right axilla to the left side of the neck. The second wound was 8" x 4" x deep to the buccal cavity, cutting all the underlying structures on the frontal left side of the mouth. The third was an injury 6" x 1'' x 1 " on the front and left side of the face, cutting all the underlying structures. The other four injuries were on the left deltoid region, the left elbow, the left leg and the left thigh. There could be no doubt that the first injury was sufficient by itself to cause death‑in the ordinary course of nature, as stated by the doctor. It had of only lacerated and destroyed the spinal chord; the sixth and seventh cervical vertebrae and the larynx but also completely severed the larynx and the trachea. Abdul Ghufuor was also examined lay the same doctor but Only two abrasions and a bruise were found on his person which wore all of a simple nature which could, in the opinion of the doctor, have been caused either by the back side of a hatchet or by friction against the same. The appellants denied that they had committed the murder and claimed that they had been falsely involved on account of enmity due to previous incidents between them and the prosecution witnesses the appellant Shafoo also filed, as a part of his statement under section 342, Cr. P. C., two judgments of the Sessions Court of Sukkur, delivered in 1961 and 1965, respectively, to show that Shafi Muhammad had given evidence in these cases but had beet) disbelieved. He also filed a first information report lodged on the 7th May 1957, by the mother of the deceased against her husband, her son Momin and the appellant Allah Rakhio to show that Allah Rakhio had no grudge against Momin for the murder of his father. The prosecution case, it appears, rested mainly, upon the ocular testimony of Abdul Ghafoor and Umar. The latter had himself been murdered during the pendency of this trial. His committing Court deposition was accordingly tendered into evidence under section 33 of the Evidence Act. In addition to this, the prosecution also examined Gajan, the complainant, and Shafi Muhammad who had since become the Chairman of the Lakkni Union Council, ac witnesses of corroboration. The recoveries of the gun and the matching of one of the empty cartridges, seized from the place of occurrence with the licensed gun produced by Allah Rakhio, was also relied upon as a strong circumstance for connecting the appellants with the crime. Evidence was also led to establish that the appellants had strong motive for committing this murder. The Courts below accepted this evidence of the eye witnesses as both of them were unrelated to the deceased, though they belonged to the same caste, particularly, since the presence of Abdul Ghafoor and Umar at the scene of 'the incident was confirmed. 1n the case of Abdul Ghafoor not only by the presence of injuries on his person which he had received in the course of the same incident but also by the fact that when the police arrived at the scene, they found him present with the dead body. In the case of Umar by the fact that it was he who gave information to Gajan and accompanied him to the Police outpost. Apart from this, the High Court took the view that no serious infirmity had been discovered in their evidence in spite of searching cross‑examination. The failure of Abdul Ghafoor to use his gun for the protection of the deceased was considered to be understandable, because it was not in his interest to get involved in the feud between the deceased and the appellants. He, therefore, suffered his gun to be snatched away and broken to escape only with minor injuries while has nephew, Umar, kept a safe distance from the appellant. The testimony of Shaft Muhammad and Gajan was also believed, for, Gajan was the informant himself and Shafi Muhammad was named in the First Information Report as a person to‑whom Gajan had first carried the information. This action, on the part of Gajan, was considered to be natural, because, it was said, it is the usual practice in this art of the country to first approach the Nekmard or some other person of authority in the village before going to the police. The matching of one of the crime empties recovered from the place, with the double‑barrelled licensed gun of Allah Rakhio, was, according to the High Court, a very important piece of evidence for connecting the appellants with the crime, even though the prosecution story itself was that it was Shahim who was armed with' the gun. It was felt that notwithstanding this "apparent conflict" between the oral evidence and the evidence of the Ballistics Expert, the very fact that Allah Rakhio knew of the place where the gun used in the occurrence bad been concealed, was sufficient to connect him with the murder since it was he whys had the strongest motive for avenging the death of his father. The contention of the defence that there could not be motive for killing Mahboob, because, it was Momin, his brother, who was accused in that murder case, was overruled on the ground that amongst the Mehars (to which caste both the deceased and the appellants belonged) revenge and reprisal is something that is banded down from father to son. The High Court, it appears, was also impressed by the fact that the deceased himself was apprehensive that the appellant Allah Rakhio might seek revenge front him. Had this not been so, he would not have asked Abdul Ghafoor to accompany him to Sukkur armed with the gun. This conduct on the part of the deceased, the High Court thought, served to "highlight the motive" for the commission of the murder. As regards the delay of about 12 hours in the lodging of the First Information Report, the 1‑ligh Court was of the opinion that this had been adequately explained. Since Gajan himself was not a witness of the incident but had learnt about it from Umar only at somahani time, there was no inordinate delay if the time taken in going first to Shall Muhammad is taken into account. The High Court was so highly impressed with this evidence that it even found fault with the trial Court for doubting the evidentiary value of the evidence of Gajan and Shall Muhammad. In its opinion 'the evidence of the prosecution witnesses was unimpeachable and had fully established the guilt of the appellants. 'The learned counsel, appearing in support of this appeal, v however, contends that the whole case is a concoction at the instance of Shafi Muhammad who is described as the real trouble maker. He maintains that the prosecution case is not only highly improbable and incredible but is also "riddled with irreconcilable inconsistencies". According to hint the murder of Mahbooh could not possibly have taken place in the manner alleged by the prosecution. If Abdul G6afoar was armed with a gun, he would surely have used it and would not have suffered the appellants to snatch it away from his hands and break it up, The fact that he himself had only minor injuries and his companion, Umar, had no injury at all, it is suggested, is a circumstance which would appear to throw serious doubt on their pretence. Indeed, according to learned counsel, the whole story o the deceased going to Sherkot for purchasing buffaloes without any money, in his pocket, is inherently unbelievable. If, as alleged by the prosecution, the appellants were all residents of Sherkot and Mahboob was afraid of being killed by them, it is argued, it would surely be incredible to expect him to walk into the arms of his enemies. Then again, if the deceased came to know of the presence of the appellants in the morning why should he wait there till tripahari time. Furthermore, if the appellants really wanted to kill Mahboob why should they have waited for 9 long years for this purpose. The motive alleged by the prosecution, it is contended, is equally incredible, for, if the appellant Allah Rakhio had any, intention of avenging the death of his father, he would have avenged it against the person who was implicated in the murder and not against his innocent brother, particularly, since there is no evidence that Momin was not available or that it was difficult to locate him. He relies also on the complaint filed by Momin's mother to show that actually Allah Rakhio and Momin were no longer on inimical terms. The motive set up, it is urged, is totally fantastic. ' The failure of Abdul Ghafoor to use his gun to ward off the attack is characterised as being so inexplicable that it renders the story of his presence at the scene unbelievable. It is argued that neither Abdul Ghafoor nor Umar were there or had seen how Mahboob met his death. In all probability nobody, it is contended, saw the actual killing but later when Ghafoor; and Umar discovered the body and gave information of it than, with the aid of Shafi Muhammad the whole case was concocted to falsely implicate their enemies. In this connection learned counsel also points out that the place where the dead body was found wax not a deserted place. It was within 1/2 furlongs of Tando village and within a furlong of a railway station. Therefore, if shahim fired shots, as alleged by the prosecution, it would have attracted other people as well but curiously enough no one else besides Ghafoor and Umar saw the incident. Learned counsel also doubts the recoveries and, in any event, he urges that the Ballistics Expert's evidence has totally belied the prosecution story that Shahim was armed with the gun or fired his gun. If, it is urged, the appellants really had any intention of killing Mahboob, then it is difficult to appreciate why they did not do so by firing a few shots ' at him with the gun carried by one of them. The explanation for the delay in the lodging of the First information Report, it is also contented is patently false for even if it is accepted, as surmised by the High Court, that the people of this area generally consult the Nekmard of the village' before going to the Police, then there could be no reason for Gajan to go to Shall Muhammad who was, on Gajan's own admission, not the Nekmard of the village. The Nekmard was Wali Muhammad. It is further pointed out that the place of incident was on the way to the Police Station itself and if really Umar was present at the time of the incident, he should have gone straight to the Police Station, instead of first going to the village of the deceased and then taking Gajan along with him to the house of Shall Muhammad and from there proceeding to the Police Station. In any event since Gajan proceeded to the Outpost on a tonga from the house of Shafi, it should not have taken more than an hour to cover six miles. Lastly, the learned counsel contends that the Courts below have made no attempt at all to assess the individual liability of each accused. Even if under section 149, P. P. C. all the accused could have been made constructively liable, yet in so far as their respective sentences were concerned, there were legitimate grounds for making a distinction between their respective culpabilities. Thus, if the prosecution story is to be believed, then the appel lants Shafoo and Dino only attacked Abdul Ghafoor and caused him minor injuries. Shahim only fired shots, which hit no one. There is no evidence that Shahim assaulted the deceased. It is only Abdul Ghafoor who says that Shafoo and Dino after they had given him a beating also attacked the deceased. But Umar did not say so nor was any such case made in the First Informa tion Report. They should not, therefore, have been given the death sentence. We have, with the assistance of the learned counsel, examined the evidence‑of Abdul Ghafoor and Umar, the two 'eye‑witnesses in this case, with great care in the light of the bitter criticism levelled against their character and credibility. But we are unable, however, to agree that the circumstances pointed out by the learned counsel are sufficient to discredit them totally. So far as Abdul Ghafoor is concerned, hi: presence at the scene of the incident is established not only by the injuries upon his person but also by the fact that he was found present there guarding the dead body of Mahboob by tae Police and his own licensed gun was recovered in a broken condition from the very place. Now why should he have taken the trouble to destroy his own gun and cause injuries to himself when he was in no way related to the deceased. It is suggested that he was inimically disposed towards the appellants because he was once prosecuted for the murder of one Ali Khan who, according to the statement of Allah Rakhio was his cousin. Ghafoor denied that Ali Khan was in any way connected with this appellant but no evidence was called by the defence to substantiate its suggestion. Apart from this, there is nothing else on the record to show that he had any particular reason to falsely implicate any of the appellants. It is difficult; therefore, to believe that he would have gone to such an extent for falsely implicating innocent persons against whom he had no particular animus, for the sake of a person who was at best only a business acquaintance. His evidence is fully corroborated by the injuries on his person and the, recovery of his broken gun from the place of the incident. The argument that he should not be believed because he was once tried in a murder case is equally unconvincing. This cannot be a sufficient reason for disbelieving him or doubting his veracity. His failure to use his gun in the protection of the deceased was obviously due to the reason that he was relieved of it before he could do so by those who grappled with him. This was done clearly to render him and his gun ineffective. Otherwise the gun itself would not have been broken. "There is nothing fantastic or unbelievable in this. There is nothing on the record also to show that Umar had any particular reason to give false evidence against the appellants. The only thing found against him is that he was convicted in the case relating to the murder of Ali Khan and sentenced to rigorous imprisonment for only 5 years. This by itself shows that he must only have had a small part in that crime. But if Ali Khan was not connected with the appellants then even this is of no consequence. Besides this his presence at the time of the incident is also established by the fact that it was he who gave information of the incident to Gajan and accompanied the latter to the Police outpost. His name is also mentioned in the First Information Report this too confirms that he must have seen the incident. Their evidence also receives strong corroboration from the recovery of the two spent cartridges from the place of the incident and the matching of one of them with the left barrel of the gun produced by Allah Rakhio. We see no reason for the police manufacturing the recoveries. The absence of any other witness of the locality is also adequately explained by the evidence of Umar who said that no one came in spite of their cries. So far as Shafi Muhammad is concerned, he has given only corroborative evidence. But be has been characterised as the villain of the piece. An attempt was made to show that he had enmity with the appellant Janu. But he pointed out that the Junu who was an accused in the case of the murder of the witness's father, some? or 3 years ago, was not the appellant Janu. He was an entirely different person, lie also denied that lie had filed any case against the appellant Allah Rakhio. The Allah Rakhio against whom he had filed a case was Allah Rakhio alias Janu who was a Bahaio by caste whereas the appellant Allah Rakhio was a Mahar by caste. Nothing was thus discovered to discredit Shaft Muhammad apart from the fact that he was a caste fellow of the deceased and a Wadero who had since also become the Chairman of the Union Council. This cannot, however, be considered to be a circumstance affecting his veracity. There is nothing also to support the contention of the learned counsel that he is a trouble maker. If he has been disbelieved in two other cases against different persons, it does not follow that he must be disbelieved in this case too particularly since his evidence is supported by other reliable evidence. That Gajan went to Shafi first before corroborated by the fact that it is mentioned in the First Information Report and that Shah also accompanied him to the outpost. A. S. I. Ghulam Kadir (P. W. 5) who recorded the First Information Report also confirms this. We see no reason, therefore, to doubt that Gajan did go to Shafi first and if this is accepted, then the delay in the lodging of the first information report is also adequately explained. We cannot help observing that the prosecution evidence relating to the matching of the crime empty cartridges, recovered from the place of the incident, with the double‑barrelled gun of the appellant Allah Rakhio, is a strong circumstance connecting the appellants who are related inter se with the incident. It is not unlikely in the circumstances, that Shahim used Allah Rakhio's gun and not his own gun when lie went out with Allah Rakhio. Coming now to the question of the motive it has to be pointed out that Allah Rakhio did admit that Momin was an accused in the case relating to the murder of his father. The contention, however, is that even if this be so, that could not possibly be a sufficient motive for killing another brother who was not involved in that case, particularly, when there is no evidence that Momin was not available. High Court has, of course, got over this contention by saying that in the case of blood feuds no such fine distinction can be drawn, Revenge may well be taken from any member of the family. We are, however, of the view that the weakness of the motive alleged, though a circumstance to be taken into account, cannot be a ground for rejecting the direct testimony of ocular witnesses which is otherwise of a reliable character. If the offence has been satisfactorily proved by direct evidence then it is immaterial as to whether the motive has been established or not. In the present case we have come to the conclusion that the implication of the appellants in the murder of Mahboob has been established beyond any reasonable doubt. Having found this we have yet to examine whether the High Court was right in making them all equally liable under section 149, P. P. C. and imposing the same sentence upon each of them. There can be no doubt that upon the facts established the appellants had clearly joined together and laid in ambush amongst the bushes on the roadside with the common object o waylaying Mahboob and killing him. Their actions also confirm that it was is furtherance of that common object that Shahim emerged firing shots but since his shots did not injure any one, the rest divide a themselves. Two occupied themselves in disarming Abdul Ghafoor and seeing to it that he did no obstruct their objective while the other two completed that objective. Shahim possibly stood guard to see that neither Umar nor anyone else intervened. They were, therefore, all furthering the common intention and were, as such, rightly held to be constructively liable under section 149, P. P. C. This does not, however, mean that they contributed in an equal measure in the fulfilment of the common object. The vengeance was wreaked by Allah Rakhio and Janu. A difference can, therefore, be legitimately made between the culpabilities of these two and the rest who played only minor roles on the basis of their ' respective contributions for the determination of the measure of their sentences. We are of the opinion that the ends of justice will be adequately met if in their cases the sentences of only transportation for life are imposed. We, accordingly, uphold the convictions of all but only the sentences of Allah Rakhio and Janu. The sentences of Shafoo, Dino and Shahim are reduced to transportation for life and the appeal is dismissed with this alteration of the sentence. Appeal dismissed.