Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Appeal No. 596 of 1966, decided on 8th December 1967.
S. 302‑Crime weapons, recoveries of‑Delay in sending weapons and obtaining reports of Chemical Examiner and Ballistic Expert as well as fact that of the two recovery witnesses, one "an interested and stock witness of Police" while the other not examined by Police at all‑Evidence of alleged recoveries, in circumstances, held, doubtful and of no avail to prosecution.
S. 154‑Lodging of F.I.R. or producing same at trial‑Not condition precedent to setting in motion of criminal investigation‑Penal Code (XLV of 1860), S. 302.
Any person may set the criminal law in motion, by making a report under section 154 of Criminal Procedure Code, 1898. The information so given is called the First Information. It is the basis upon which an investigation is commenced under Chapter XIV, (Part V) of the Code of Criminal Procedure. However, receipt and recording of first information report is not a condition precedent to the setting in motion of criminal investigation. It is true that the absence of F. I. R. deprives the accused of his right to cross‑examine the first informant on its basis. However, the fact that no F. I. R. was made or was proved at the trial, would not vitiate the conviction.
M. Bashir Saigol and another v. The State P L D 1964 Lah. 148 and State v. Kh. Nazir Ahmad A I R 1945 P C 18 rel.
S. 154‑F. I. R. must be produced in original before Court‑Mere production of a copy of F.I.R. containing neither signature nor thumb‑impression of informant‑Cannot be taken into consideration‑Penal Code (XLV of 1860), S. 302.
Choghatta v. Emperor A I R 1926 Lah. 179 rel.
S. 302‑Witness‑Provided evidence otherwise inspiring confidence, mere relationship with deceased no ground for disbelieving testimony.
S. 302‑Eye‑witnesses interested and related to deceased‑Guiding principle to be kept in mind in evaluating such evidence‑Persons natural witnesses of occurrence being daughters of deceased and residing in same household‑Despite numbers of discrepancies in statements, testimony relied upon, substance of evidence having been round corroborated from circumstances on all salient features of prosecution case.
Emperor v. Muzaffar Hussain A I R 1944 Lah. 97 and Niaz v. The State P L D 1960 S C 387 rel.
S. 302‑Person along with other accused armed with rifle and using same in attempt to kill deceased but failing in hitting his target‑Accused though vicariously liable along with other accused for offence committed, circumstance taken into consideration in weighing quantum of punishment‑Sentence of death reduced to transportation for life.
Sh. Jan Hussain and Hamiduddin Chaudhry for Appellants.
Abdul Qayyum Bhatti for A.‑G. for the State.
Dates of hearing : 1st, 2nd and 3rd November 1967.
Rehman aged 29‑30 years, Fateh Muhammad aged 30‑31 years (both brothers and the sons of one Ahmad), Shera aged 40‑41 years, Rajja aged 50‑51 years (both brothers and sons of one Jassu) and Sahta son of Sultan aged 25‑26 years have been convicted by the Additional Sessions Judge, Lyallpur, under section 302/149, P. P. C., and each one sentenced to death for the murder of Mst. Haleeman wife of Jalla. They have also been convicted for various offences and each sentenced as under :‑
Under section 148, P. P. C. to one years' R. I. Under section 452/149, P. P. C. to four years' R. I. and a fine of Rs. 250 and in default to one years' R. I. Under section 307/149, P. P. C. to six years' R. I. and a fine of Rs. 500 and in default to one and a half years' R. I. These sentences were ordered to take effect only if their death sentences are not confirmed.
2. Sahta accused is the maternal‑uncle's son of Shera and Rajja accused, Jassu, father of Shera and Rajja accused, is an uncle of one Ahmad who is the brother of Rehman and Fateh Muhammad accused. The accused, as would be seen, are inter related as collaterals. They are also related to the complainant party as collaterals and all of them are the residents of Chak No. 228 R. B., Saddar Police Station, Lyallpur.
3. The brief facts, as stated by the prosecution, are that at about Maghribwela on 9th of September 1965, Rehman accused armed with a pistol (a country made contraption of 12 bore), Fateh Muhammad accused armed with a gun, Rajja accused armed with a rifle, Sahta and Shera accused armed with hatchets, made a criminal trespass into the house of Mst. Haleeman deceased and put her to death while she was offering her evening prayers. Mst. Noor Bakhi P. W. 9 aged 18 years and Mst. Khatoon P. W. 10, aged 16 years, daughters of deceased Mst. Haleeman, were present in the house at the time of occurrence. It is alleged that as a result of gun fire, Mst. Noor Bakhi P. W. 9 and Mst. Khatoon P. W. 10 also received one pellet injury each. Mutalli P. W. 8 is alleged to have arrived at the scene of occurrence, after having heard the gun shot reports and was informed of the details of occurrence by If Mst. Noor Bakhi and Mst. Khatoon P. Ws. Lal P. W. 11 and Roshan P. W. 12 are alleged to have also witnessed the occurrence.
4. The motive for the alleged crime, as stated by the prosecution was, that about nine months prior to the occurrence Mst. Haleeman deceased and her husband Jalla were challaned for the murder of one Allah Yar, a brother of Shera and Rajja accused. Mst. Haleeman deceased is alleged to have been on bail when the accused invaded her house and murdered her.
5. Mutalli P. W. 8 is alleged to have left for Police Station at about Fajar time the following day with a view to filing the F. I. R. but after travelling about 21 miles he met Rana Abdul Rashid S. I. P. P. W. 15 in Chak No. 215/R. B. and informed him of the occurrence. The S. I. reduced his statement to writing allegedly as Exh. P. A. and got it signed by him. However, it was produced in another case of murder (committed at about the same time) and forms part of the record of Sessions file No. 15 of 1965. On the basis of said statement, formal F. I. R. No. 169 of 1965, is alleged to have been recorded later at the Police Station which the prosecution produced at the trial in an endeavour of it's proof. After retaining it's copy Exh. P. W. 15/A, on record, it was returned to the prosecution by the trial Court. Exh. P. A. which bore the signatures of Mutalli P. W. 8, was however, not produced at the trial nor was his attention drawn to it in any manner. The learned Additional Sessions Judge was of the view, as, if by producing F. I. R. No. 169 of 1965 in his Court and retaining it's copy Exh. P. W. 15 A on record the prosecution had successfully discharged the burden or proving of filing of F. I. R. in this case. We are of the opinion, however, that any such assumption on his part was not well founded. Exh. P. A. was the First Information conveyed and recorded by Rana Abdul Rashid S. I., P. W. 15, which was to allegedly thumb‑marked by Mutalli P. W. 8, the informer, and it was that document which should have been produced at the trial in order successfully to discharge the burden which laid on the prosecution that a F. I. R. had been lodged in this case. The legal consequences arising, as a result of this omission, would be discussed presently.
6. After recording Exh. P. A., Rana Abdul Rashid, S. I. P. W. 15 proceeded to the place of occurrence. On arrival he prepared the injury statement Exh. P. W. and inquest report Exh. P. O. of the dead body of Mst. Haleeman deceased. He also prepared the injury statements of Mst. Noor Bakhi and Mst. Khatoon P. Ws. respectively as Exh. P. P. and Exh. P. M. He then took into possession blood‑stained earth from the courtyard of Mst. Haleeman deceased, where she was alleged to have been murdered, vide memo. Exh. P. J, and made it into a sealed parcel. He also took into possession a dopata Exh. P. 7 and three alleged crime empties Exhs. P. 8‑-P. 10 from the place of occurrence vide memo. Exh. P. J. and made them into a sealed parcel. He then sent Mst. Noor Bakhi and Mst. Khatoon P. Ws. for medico‑legal examination and the dead body of Mst. Haleeman deceased to mortuary for post‑mortem examination.
7. The accused were arrested on 12th of September 1965. On interrogation Rehman accused is alleged to have led to the recovery of pistol Exh. P. 2, on 22nd September 1965, from inside a kotha of his dhari which was taken into possession vide memo, Exh. P. D. Fateh Muhammad accused is alleged to have led to the recovery of gun Exh. P. 3, from inside the heap of dry fodder, lying on his land which was taken into possession vide memo. Exh. P. E. Rajja accused is alleged to have led to the recovery of rifle Exh. P. 4, from underneath the heap of dry fodder which was taken into possession vide memo. Exh. P. F. Shera accused is alleged‑to have led to the recovery of hatchet Exh. P. 5, from inside the roof of his cattle‑shed, which was taken into possession vide memo. Exh. P. C. Abdul Rahim, Draftsman P. W. 3, is alleged to have prepared site plan Exh. P. H. and it's duplicate Exh. P. H./1.
8. Dr. Ahmad Ghulam Muhammad P. W. 1, who performed post‑mortem examination on the dead body of Mst. Haleeman deceased at 10 a.m. on 11th September 1965, had found the following injuries on her person :‑--
(1) One incised wound 5'' x 7/8'' going inside the face and the skull, situated vertically on the left side of the face and the forehead, a' above the left angle of the mouth, cutting the eye ball. The face bones were cut through and through and also the frontal bone on the left side.
(2) One gun shot wound 1'' x '' going inside the chest, situated on the front aspect of the right side of the chest, 1" from the middle line and " below the clavical bone. It was the wound of entry. There was burning and scorching around the wound.
(3) One stab wound 1 '' x '' going inside the chest, situated on the front aspect of the left side of the chest, just above the breast, 1 '' from the middle line.
(4) One incised wound 5'' x 2 " going inside the abdomen, situated on the left side of the chest and abdomen, 3' below the chest. A piece of omentum was protruding outside the wound.
(5) One gun shot wound 1 " x 1'' going inside the arm, on the outer aspect of the left arm, 2" above the elbow joint. There was scorching around the injury. It was the wound of entry.
(6) One gun shot wound, which was the wound of exit, 3'' x 1 " on inner aspect of the left arm, '' from injury No. 5.
(7) One incised wound 2 " x '' x '' deep on the front aspect of left forearm, 5' above the wrist joint.
(8) One incised wound 3'' x 1" x '' deep on the outer aspect of the right knee joint.
(9) One gun shot wound, which was the wound of exit, 2" x 4'' situated on the right side of the chest 3" below the exilla.
(10) One incised wound '' x 3/8'' x 1/3'' deep situated on the left side of the back in the lower part.
On opening the body the following observations were made:
Skull : The frontal bone was found cut through and through on the left side due to injury No. 1. Membranes‑It was found cut on the left side due to injury No. 1. Brain‑Injured on the left side. There was a wound 2" x 4' x 1" deep.
Chest : Second rib was found fractured on the right side, due to injury No. 2. 2nd, 3rd and 4th ribs were found fractured on the right side on the back due to injury No. 2. Pleura‑The right pleura was torn and the left pleura was cut Lungs‑The right was slightly decomposed and its upper lobe was badly torn. There was wound 2" x " x " deep near the margin of the left lung. Heart‑2" x " deep. It was empty. Abdomen‑Peritonium. It was found torn due to injury No. 4.
According to him death was caused due to shock, haemorrhage and laceration of the brain on account of injuries Nos. 1, 2 and 3 which were sufficient to cause death in the ordinary course of nature. Injury No. 1, in his opinion, was caused by a sharp‑edged weapon; injuries Nos. 2, 5, 6 and 9 were caused by a fire arm ; injury No. 3 was caused by a sharp‑pointed weapon and injuries Nos. 4, 7, 8 and 10 were caused by a sharp -edged weapon.
9. Lady Dr. Safia Aslam P. W. 2 of the District Headquarter Hospital, Lyallpur examined Mst. Noor Bakhi P. W. at 9 a.m. on the 11th of September, 1965, and found the following injury on her person:
"A gun shot wound " x " x " on the outer side of the right thigh, 6 above the knee joint. The margins of the wounds were scorched and black. There was a swelling and redness around the wound 1" x 1" in diametre. There was a hole in the chadar and an X‑ray of wound was advised. On X‑ray the wound was found simple, which was caused by a fire arm and duration of the wound was 3 days."
According to her, the injury was simple and was caused by a fire arm. She also examined Mst. Khatoon P. W. at 9‑30 a.m. on the same day and found on her person an abrasion " X " on the outer side of her left thigh, at it's lower end, 1 " above the knee joint. The injury according to her was simple and was caused by a blunt weapon.
11. The prosecution relied on the evidence of alleged four eye‑witnesses namely, Mst. Noor Bakhi P. W. 9, Mst. Khatoon P. W. 10, Lal P. W. 11 and Roshan P. W. 12. Mst. Noor Bakhi and Mst. Khatoon P. Ws., as already mentioned, are the daughter of Mst. Haleeman deceased while Roshan P. W. 12, is the deceased's uncle. Lal P. W. is not related. The accused have denied the charge. They stated that they were involved due to enmity.
12. The learned Additional Sessions Judge has disbelieved the alleged "recoveries". He came to that conclusion because one of the recovery witnesses namely, Muhammad Din Chowkidar P. W. 14, according to him, "was an interested and stock witness of the Police." The other recovery witness namely, Muhammad Bakhsh was not produced at the trial from which he drew an adverse presumption against the prosecution holding that, had he been produced, he would not have supported the prosecution. We are in agreement with the learned Additional Sessions Judge on this point but for additional reasons. Muhammad Din Chowkidar P. W. 14 admitted in cross‑examination at the trial, that he was working under Wali Muhammad Lambardar a brother of Mutalli P. W. 8. He also admitted that one Lal deceased, who was murdered at about the same time, in the same abadi, was his nephew. He further admitted that the accused, in the murder case of Lal deceased, were collaterals of the accused in the present case. Furthermore, the accused were arrested on 12th September 1965, the alleged "recoveries" were made at their instance on 22nd September 1965, but hatchet Exh. P. 5, was not sent to the Chemical Examiner until 27th September 1965. Khurshid Ahmad, Head Constable P. W. 7 stated that, he had received the hatchet in question on 22nd September 1965, but he could give no reason as to why it was not sent to the laboratory before 26th September 1965. The report of Chemical Examiner was signed on. 29th September 1965 but the hatchet was not sent by him to Serologist until 9th October 1965. Again no explanation is forthcoming for this delay. The Serologist vide his report dated 14th December 1965, found the hatchet to be stained with human blood but again we find no explanation on record as to why he had taken more than two months in arriving at that conclusion. Furthermore, gun Exh. P. 3, was allegedly recovered from Fateh Muhammad accused on 22nd September 1965, and the crime empties Exh. P. 8‑P. 10 on 10th September 1965, from the scene of occurrence but they were not sent to the Ballistic expert until 27th September 1965. Again this delay has not been accounted for. For these additional reasons we are in agreement with the A learned Additional Sessions Judge that the alleged recoveries were doubtful and were of no avail to the prosecution.
13. A preliminary objection, wised by the learned counsel for accused in regard to the F.I.R. may now be disposed of. He argued that since Exh. P. A. which was recorded on the statement of Mutalli P. W. 8 and was thumb‑marked by him, was not produced at the trial and instead Exh. P. W. 15/A, a copy of F. I. R No. 169 of 1965, was produced, the omission was fatal to the prosecution case. In order properly to deal with this objection, it would be pertinent to reproduce the contents of section 154 of the Code of Criminal Procedure, which deals with the recording of first information, relating to the commission of cognizable offences. The section reads as under:--
"Every information relating to the commission of a cogniz able offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant ; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the (Provincial Government) may prescribe in this behalf."
It would be seen that any person may set the criminal law in motion, by making a report under this section. The information so given is called the First Information. It is the basis upon which an investigation is commenced under Chapter e XIV (Part V) of the Code of Criminal Procedure. However, receipt and recording of first information report is not a condition precedent to the setting in motion of criminal investigation. In support of this conclusion reference may be made to a judgment of this Court M. Bashir Saigol and another v. The State (P L D 1964 Lah. 148) while dealing with a similar question their Lordships observed at page 153 as under:--
"I agree in principle that it is not necessary that the first information report should mention the names of all or any of the accused so as to empower the investigating agency to set in motion. In fact the recording of a first information report is not a condition precedent and the police, on the receipt of credible information that a cognizable offence has been committed may, under the Code of Criminal Procedure or other statute or law authorizing them in this behalf, start investi gation without recording or drawing up a formal first informa tion report."
Reference may also be made to a judgment of the Privy Council State v. Kh. Nazir Ahmad (AIR 1945 P C 18) while dealing with a similar question their Lordships observed:‑-
"But in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information, received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible, though informal, intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged."
It is true that the absence of F. I. R. deprives the accused of his right to cross‑examine the first informant on its basis. However, the fact that no F. I. R. was made or was proved at the trial, would not vitiate the conviction. For all these reasons the preliminary objection of the learned counsel for the accused is without substance.
14. The question, which still awaits resolution is, as to what is the effect of Exh. P. W. 15/A, which is only a copy of F. I. R. No. 169 of 1965 and which itself was recorded on the basis of statement Exh. P. A. We are of the view that since Exh. P. A. was not produced, nor proved at the trial ; Exh. P. W. 15/A cannot be used for any purpose. In support of this conclusion reference may be made to a judgment of the Lahore High Court reported as Choghatta v. Emperor (A I R 1926 Lah. 179). The relevant facts in this case were that a woman reported the murder of her husband at a Police Station. The Sub‑Inspector incharge, after recording her statement in the diary, at once proceeded to the spot to make an enquiry under section, 174, Cr. P. C. An accused namely, Baza confessed to the crime, during the course of investigation, and pointed cut the, scene of murder, where marks of blood and struggle were observable. He also led the Police Officer to a ravine where the dead body of the murdered man was found floating. The said Officer then wrote a ruqqa, reproducing therein the report of the wife of the murdered person, which a day earlier was recorded in the diary of the Police Station, and after adding thereto an account of the discovery of dead body, directed the clerk of the Police Station to draw up an F. I. R. At the trial the prosecution failed to produce the original record of the report, i.e. the diary of the Police Station and instead relied on the ruqqa, which was written by the Investigating Officer. Their Lordships altogether excluded the ruqqa from consideration and observed that :‑
"In the present case the information to the police was that entered in the Station diary on the 26th June, but the original record of that report was not proved which should have been done to make it admissible in evidence. The ruqqa of the Sub‑Inspector in which it was reproduced, was not signed or thumb‑marked by Mst. Bakhat Bhari and that ruqqa cannot fall within the definition of first information'. But no information report is substantive evidence by itself. It can only be used under section 157 of the Evidence Act as a previous statement to corroborate or contradict a statement made subsequently in Court. This ruqqa, therefore, is to be excluded from consideration and the case for the prosecution is to be judged by the evidence of the witnesses produced in Court "
In this case also, the first information regarding the murder of Mst. Haleeman deceased, was that entered in Exh. P. A. which was neither produced nor proved and instead Exh. P. W. 15/A, a copy of F. I. R. No. 169 of 1965, was produced at the trial. Since the F. I. R. in question itself was recorded on the basis of Exh. P. A., and contained neither the signatures nor thumb impression of Mutalli P. W. 8 (the informant) it's copy Exh. P. W. 15/A cannot properly fall within the definition orb "first information" and, therefore, it should have been excluded D from consideration by the trial Court. However, it is to be noted that the absence of F. I. R. deprives the accused of his right to cross‑examine the informant on it's basis which as a result is bound to prejudice his case in some measure. It is, therefore, the duty of the prosecution to prove the F. I. R., where it exists, so that the accused is not subjected to any handicap in the defence of his case. Be that as it may, since Exh. P. W. 15/A cannot be taken into consideration the prosecution case must no depend on the evidence of eye‑witnesses.
15. The prosecution mainly relied on the evidence of four alleged eye‑witnesses namely, Mst. Noon Bakhi P. W. 9, Mst. Khatoon P. W. 10, Lal P. W. 11, and Roshan P. W. 12. Lal P. W. was disbelieved by the learned Additional Sessions Judge as a chance witness and we find ourselves in agreement with him. He admitted at the trial that he belonged to a different village than the one which was the scene of occurrence. He also admitted that he did not know the accused previously and that he came to know their names only after the occurrence. Mst. Noor Bakhi P. W. 9 had stated at the trial that Lal and Roshan P. Ws. had seen the occurrence from the street (from points 1 and 2 marked on the site plan Exh. P. H./1) but according to Abdur Rahim Draftsman P. W. 3, points 1 and 2 were not visible from the kotha (which is on the extreme North‑West of the plan: Exh. P. H./1) where Mst. Noor Bakhi and Mst. Khatoon P. Ws. are alleged to have taken shelter. For all these reasons, we are of the view that the learned Additional Sessions Judge had rightly disbelieved Lal P. W. Similarly, the presence of Roshan P. W. 12, at the scene of occurrence is also not free from doubt, although the learned Additional Sessions Judge relied on his evidence. He did not support the prosecution at the trial and was allowed to be cross‑examined by the Court at the request of learned Public Prosecutor. His statement before the Committing Magistrate was also transferred to the Sessions file under section 288, Cr. P. C. on the request of learned Public Prosecutor. However, he admitted before the Committing Magistrate, that Mst. Haleeman deceased was the daughter of his sister while Mutalli P. W. 8 and one Wali Muhammad (a P. W. in another case of murder, which had taken place at about the same time in the same abadi) were his nephew. We are mindful of the fact that mere relationship of Roshan P. W. with Mst. Haleeman deceased is by itself no circumstance to disbelieved him, provided his evidence could otherwise inspire confidence. He stated at the trial that after Mst. Haleeman deceased was felled at point A' (site plan Exh. P. H /1), as a result of gun fire, the accused dragged her body to a shareen tree about 40‑45 feet away and then gave her hatchet blows. However, Dr. Ahmad Ghulam Muhammad P. W. 1 who performed post‑mortem examination on the dead body of Mst. Haleeman deceased stated in cross‑examination that no marks of dragging were found on her dead body. Roshan P. W. 12 further stated at the trial that, Rajja accused had raised a lalkara and urged Shera accused to attack Mst. Haleeman deceased with his hatchet but no other P. W. has mentioned any such thing. He further stated that one of the accused had his face muted but no other P. W. has mentioned this fact. Furthermore, according to Mst. Noor Bakhi and Mst. Khatoon P. Ws., Roshan P. W. 12 had witnessed the occurrence from point No. 1 (of site plan Exh. P. H./1) but according to Abdur Rahim, Draftsman P. W. 3, this point was not visible from the kotha where Mst. Noor Bakhi and Mst. Khatoon P. Ws. are alleged to have taken shelter. For all these reasons we are of the view that the presence of Roshan P. W. at the scene of occurrence is not free from doubt and his evidence cannot be relied upon to the prejudice of the accused.
16. We are left with the ocular evidence of only two witnesses namely, Mst. Noor Bakhi P. W. 9 and Mst. Khatoon P. W. 10. They are the daughters of Mst. Haleeman deceased and their presence at the scene of occurrence cannot be doubted because they were members of the same household and were also injured. According to Lady Dr. Safia Aslam P. W. 2, the injury on the person of Mst. Noor Bakhi P. W. was caused by a fire arm. The margins of the wounds, according to her, were scorched and black which suggests that she was fired at from a very close range of not more than four feet. According to same Lady Doctor the injury on the person of Mst. Khatoon P. W. was caused by a blunt weapon, as it was only an abrasion on the outer side of her left thigh, at it's lower end, above the knee joint. According to Mst. Khatoon P. W. 10, however, she and Mst. Noor Bakhi P. W., her sister, had received injuries on their persons from the pellets of a gun shot which was fired by Fateh Muhammad accused and which had killed her mother Mst. Haleeman deceased.
Mst. Noor Bakhi P. W. 9 stated in examination‑in‑chief that at about Maghrabewela on the day of occurrence she was lying on a cot under a shareen tree, in the courtyard of her house, when the accused entered from the main gate. According to her, Mst. Haleeman deceased was then offering her evening prayers while Mst. Khatoon P. W., her sister, was serving meals to her younger brothers and sisters. She further stated that Rehman accused was armed with a pistol (a locally made contraption of 12 bore), Fateh Muhammad accused was armed with a gun, Rajja accused was armed with a rifle and Shera and Sahta accused were armed with hatchets. Rehman accused opened the attack by firing his pistol at Mst. Haleeman deceased and was followed by Raja accused who also fired at the deceased and both the shots struck her on the back. According to the witness, when her deceased mother was thus felled to the ground, she and her sister Mst. Khatoon P. W. collected the children and started running towards the kotha; when Fateh Muhammad accused fired a shot at her mother. She stated that some stray pellets from this shot caused injuries to her person as well as to her sister Mst. Khatoon P. W. She further stated that Shera accused gave hatchet blows on the leg of her mother, while Sahta accused dragged her, from her pig tail, to the shareen tree where Shera and Sahta accused both inflicted more hatchet blows on the person of the deceased. According to the witness, all injuries inflicted on the leg of Mst. Haleeman deceased were caused by Shera accused while Sahta accused had inflicted injuries on the face of the deceased. She further stated that Lal and Roshan P. Ws. were attracted to the scene of occurrence on an alarm which she had raised. The learned counsel for the accused pointed out certain contradictions in the evidence of this witness and argued that she has not stated the truth and therefore, it would be unsafe to rely on her evidence. Briefly these contra dictions are:--
(i) She stated at the trial that Lal and Roshan P. Ws. had witnessed the occurrence from points 1 and 2 (site plan Exh. P. H./1) but their presence at the scene of occurrence has been disbelieved by the trial Court as well as by this Court.
(ii) According to the witness the body of her mother Mst. Haleeman deceased was dragged from point No. 1, (site plan Exh. P.H/1) where she was felled down by the gun fire, to a shareen tree, which is at a distance of about 40‑45 feet, but according to the site plan Exh. P. H./1 the dead body of the deceased was found at point No. 2 (site plan Exh. P. H./1) which is about 2 to 3 feet from point No. 1. Similarly Dr. Ahmad Ghulam Muhammad P. W. stated that no marks of dragging were found on the dead body of Mst. Haleeman deceased.
(iii) The witness had stated that, she and her sister Mst. Khatoon P. W. were injured by the pellets of a gun shot fired by Fateh Muhammad accused, but the medical evidence in regard to Mst. Khatoon runs counter to this version. According to Lady Dr. Safia Aslam P. W. 2, the injury found on the person of Mst. Khatoon was only an abrasion which was caused by a blunt weapon.
(iv) The witness had stated that the gun shots had struck her mother on the back, but according to Dr. Ahmad Ghulam Muhammad P. W. the deceased was shot in the chest and left arm, on the outer aspect, above the elbow joint.
(v) The witness in examination‑in‑chief had stated that only three shots had been fired, one each by Rehman, Rajja and Fateh Muhammad accused, but in cross‑examination she mentioned four shots, two by Rehman accused and one each by Rajja and Fateh Muhammad accused.
It is true that the evidence of this witness contains these contradictions, but all the same she is a natural witness of the occurrence and was also found to have received a pellet injury. On the other hand, she is an interested witness, not only because her family stood on inimical terms with the accused but also her mother Mst. Haleeman deceased was murdered right in her presence. Her evidence therefore, needs to be probed into with caution in accordance with the accepted principles of Criminal Jurisprudence. However, before we embark on this course, reference may pertinently be made to few judgments, which we consider have laid down a safe guide for evaluating the evidence of prosecution witnesses, more or less, in similar circumstances. In a judgment reported as Emperor v. Muzaffar Hussain (A I R 1944 Lah. 97) their Lordships at page 104 observed:--
"The manner in which the learned Sessions Judge dealt with the evidence is not quite satisfactory. He was evidently carried away by the fact that some of the statements by the witnesses were not found to be correct or, to be more exact, established. There was a time when this method of treatment was held to be permissible. If a witness was not found to have told the truth in one or two particulars, the whole of his state ment was ignored. As .it was not easy to find angles as witnesses, this angle of vision underwent a radical change. Now the Courts are required to sift the evidence, accept what they find to be true and reject the rest. They have to separate the grain from the chaff. In doing so, they are justified in looking upon a witness with suspicion if he is not found to be true in some material respect. But this does not justify them to throw away the whole of the statement although it is natural that they must examine the rest with greater care."
In a case reported from the Supreme Court of Pakistan as Niaz v. The State (P L D 1960 S C 387) their Lordships at page 390 observed:--
"Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their words cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circum‑stance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corrobora tion must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt."
We have carefully analysed the evidence of Mst. Noor Bakhi, in the light of these judgments, and have come to the conclusion, that in spite of she being an interested witness and her evidence also contained many discrepancies, she is a reliable witness. It is true that her evidence contained exagger ations and mis‑statements, as catalogued hereinbefore, but they can safely be disregarded, because the substance of her evidence is corroborated from circumstances on all salient features of the prosecution case. She stated at the trial that she knew the accused from before. She also attributed one fire each to Rehman accused, Rajja accused and Fateh Muhammad accused which is corroborated by the medical evidence on recording to Dr. Ahmad Ghulam Muhammad P. W. Mst. Haleeman deceased had two gun shot injuries on her person, one on her chest and the other on her left arm. These injuries, according to the witness, were inflicted as a result of gun shots fired at the deceased by Rehman and Rajja accused. The witness had ascribed the third shot to Fateh Muhammad accused but she had not said that it had stuck Mst. Haleeman deceased. In fact she stated that as a result of this shot she and her sister Mst. Khatoon P. W. were injured. Similarly she ascribed to Shera and Sahta accused the hatchet injuries which were found on the dead body of Mst. Haleeman deceased. Her evidence finds corroboration from the medical evidence of Dr. Ahmad Ghulam Muhammad P. W. who had found five incised injuries on the body of Mst. Haleeman deceased. These injuries according to him were caused by a sharp‑edged weapon. The nature and number of these injuries leaves no doubt in our mind that they were caused both by Shera and Sahta accused with hatchets. It may be recalled that the accused are interrelated as collaterals and had a motive to murder Mst. Haleeman deceased because Allah Yar, a brother of Rajja and Sahta accused, was allegedly murdered by the deceased and her husband. For all these reasons we are satisfied in our mind that Mst. Noor Bakhi P. W. was a witness of occurrence and that her evidence on all salient features of the prosecution case is truthful.
20. Mst. Khatoon P. W. 10 has corroborated the evidence of Mst. Noor Bakhi P. W. 9 in all material respects. However, the learned counsel for the accused has pointed out that her evidence also contained the same discrepancies as the evidence of Mst. Noor Bakhi P. W. and therefore, could not safely be relied upon in support of the prosecution case. Our attention was particularly invited to the fact that according to the evidence of Lady Dr. Safia Aslam P. W. 2 she had suffered only an abrasion on the outer side of her left thigh, but in her statement at the trial, the witness had ascribed this injury to a stray pellet from the gun shot which she alleged to have been fired by Fateh Muhammad accused. According to the learned counsel, the witness has made a false statement on this material aspect of the case and therefore, her evidence cannot safely be taken into account. We have anxiously applied our mind to this aspect of the case and have come to the conclusion that the witness has stated the truth. It is true that according to medical evidence only an abrasion was found on her left thigh but that by itself does not discredit her testimony. It is not unlikely that she was injured as a result of a pellet from the gun shot fired by Fateh Muhammad accused which however, grazed her skin without causing a conventional injury. She was a natural witness of the occurrence because she not only belonged to the same household, where her mother Mst. Haleeman deceased was murdered, but she was also found to have been injured. The other discrepancies, to which our attention was invited by the learned counsel, are more or less the same as were found in the evidence of Mst. Noor Bakhi P. W. 9 and which have been discussed in detail herein‑ H before. After carefully analysing the evidence of this witness, we have come to the conclusion that in spite of these discrepancies, her evidence is fully corroborated by independent circumstances such as the medical evidence on record as well as by the evidence of her sister Mst. Noor Bakhi P. W. We, therefore, believe that she was a witness of occurrence and has stated the truth. In the result we are satisfied that the prosecution has successfully brought guilt home to the accused.
21. However, there remains one aspect of the prosecution case which may now be adverted to. Mst. Noor Bakhi and Mst. Khatoon P. Ws. stated at the trial that Rajja accused was armed with a rifle and had fired a shot at their mother Mst. Haleeman deceased which, according to them, had struck her in the back. However, according to Dr. Ahmad Ghulam Muhammad P. W. Mst. Haleeman deceased had two gun shot injuries on her person when post‑mortem examination was conducted by him on her dead body. Similarly, the injuries on the persons of Mst. Noor Bakhi and Mst. Khatoon P. Ws. were also caused by a gun shot. Therefore, their statements, made at the trial, that Rajja accused was armed with a rifle and had shot their mother in the back have not been corroborated by any independent circumstances. In this view of the matter we are of the opinion that while Rajja accused was present at the scene of occurrence, alongwith other accused armed with a rifle, which he had used in an attempt to kill Mst. Haleeman deceased but it seems that the bullet failed to find its target. In any case since his presence at the scene of occurrence cannot be doubted he is vicariously liable for all the offences committed by the other accused. In regard to the death sentence awarded to him however, we are of the view that since he was not directly responsible for contributing to the death of Mst. Haleeman deceased or for causing injuries to Mst. Noor Bakhi and Mst. Khatoon P. Ws., the ends of justice would be sufficiently met if his death sentence was reduced to, transportation for life. Accordingly, his appeal is accepted to this extent that he shall undergo transportation for life and his death sentence is not confirmed. The reference made in that regard by the learned Additional Sessions Judge is rejected. The other sentences awarded to him under section 148, P. P. C. to one years' R. I., under section 452/149, P. P. C. to four years' R. I. and a fine of Rs. 250 and in default to one year's R. I., under section 307/149, P. P. C. to six years' R. I. and a fine of Rs. 500 and in default to one and a half years' R. I. are maintained. All the sentences are to run concurrently. In regard to Rehman, Fateh Muhammad, Shera and Sahta accused we have not found any mitigating circumstances to pursuade us to award them any lesser penalty than the death sentences awarded to them by the learned Additional Sessions Judge. Accordingly, the death sentence of each one of them is confirmed and their appeals are dismissed.
22. Before we part with this judgment, we are constrained to point out that the investigation in this case (including the role of Chemical Examiner and Serologist) was conducted in a manner altogether unsatisfactory. It is a matter of regret that in a serious case of this nature, that degree of care and responsibility' was not shown by these agencies which is expected of them in the interest of proper administration of justice. We, therefore, order that a copy of this judgment may be sent to the Home Secretary, Government of West Pakistan, and the Home Secretary, Government of Pakistan for information and whatever action they might consider necessary to take in that regard so that similar lapses do not recur in future.
K.B.A. Appeal partly accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer