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Criminal Appeal No. 38 of 1967, decided on 24th October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th November 1966, it Criminal Appeal No. 33 of 1966/Murder Reference No. 32 on 1966).

S. 302/34-Murder-Two out of four accused convicted and sentenced to death-High Court on appeal confirming sentence of one but reducing sentence of other to that of transportation for life-Special leave to appeal --Granted to consider whether High Court gave adequate consideration to certain aspects of case which appeared to make defence set up more probable as also to consider whether cogent reasons existed for discriminating between two accused in matter of sentence-Constitution of Pakistan (1962), Art. 58(3).

S. 45-Expert evidence-- Medical report-Injury report prepared at rural dispensary describing injuries as incised wounds while post-mortem report describing same injuries as contused wounds-Injuries caused by blunt weapon on bony prominence, held, not unlikely to appear ay clean cut wound to inexperienced person not having acquired sufficient skill in carrying out post-mortem examination-Post-mortem report believed in circumstances and injuries, held, caused by blunt weapon.

Modi's and Taylor's Medical Jurisprudence ref.

S. 302-Murder-Deceased receiving injuries on vital parts of body-Injuries inflicted with such force as to fracture not only parietal bone but also temporal and occipital bones-Intention, held, was to kill and not hurt-- Accused deemed to have intended natural and inevitable consequences of their acts.

S. 302/34-Murder--Sent ence-Both accused taking equal part in attack and case of one not different from another-One accused receiving sentence of death and another transportation for life on ground of his being servant of former-No evidence of exercise of undue influence, nor servant under so great influence as not to refuse participation in homicidal attack-Ground for discrimination, in awarding sentences, held, not valid-Capital sentence reduced to transportation for life.

M. Saleem, Senior Advocate Supreme Court instructed by Mushtaq Ahmad, Senior Attorney for Appellant.

M. A. Bajwa. Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Date of heating: 24th October 1967.

.--The appellant in this case was tried along with three others on a charge under section 302/34 of the Pakistan Penal Code, by the Additional Sessions Judge, Lahore, who acquitted two of the co-accused but convicted the appellant and one Rang Ali. They were both sentenced to death but the appellant was further ordered under section 545-A of the Code of Criminal Procedure to pay compensation of Rs. 5,000 to the heirs of the deceased. Both of them preferred an appeal to the High Court and their sentences of death were also referred for confirmation under section 374 of the Code of Criminal Procedure. The High Court dismissed the appeal and upheld the conviction and sentence of the appellant but the sentence of Rang Ali, who was a servant of the appellant, was reduced to transportation for life, as it was felt that he had acted under the influence of the appellant.

From this judgment and order of a Division Bench of the High Court of West Pakistan, Lahore, the appellant alone has come up on appeal by special leave of this Court. Leave was granted to consider whether the High Court had given adequate consideration to certain aspects of the case which appeared to make the defence set up more probable as also to consider whether there were cogent reasons for discriminating between the appellant and Rang Ali in so far as the sentence was con cerned.

The appellant and his co-accused were charged with having beaten one Anwar to death on the night between the 23rd and the 24th September 1964, while they were proceeding towards the naka from where the water had to be diverted to the land of one Siraj Din in the area of village Shahpur.

According to the prosecution case four months before this incident one Ibrahim was murdered and three brothers of the appellant were challaned in that connection. In this case Khan, an uncle of the deceased, it appears, figured as a witness. The appellant had requested Khan not to depose against his brothers but the latter had refused to oblige. It is for this reason that the appellant and his associates, it is alleged, had waylaid Khan when he was going to the naka along the western banna of the appellant's cotton field at a distance of about 2 killas from the Dhari of the appellant's father. The appellant and his companions, who were armed with lathis, it is said, came out of a sugar-cane field at the place and accosted Khan by asking him if he would still not desist from giving evidence for the prosecu tion in the case relating to the murder of Ibrahim. Anwar deceased, who was ahead of Khan at the time, replied that they would give evidence against the brothers of the appellant. Upon this the appellant gave a lathi blow upon the head of Anwar who fell down. His servant Rang Ali then struck another lathi blow on the thigh of Anwar and thereafter all the accused named gave more blows to Anwar while he lay on the ground. When Khan Siraj Din and Mathela attempted to intervene they were threa tened that they too would meet the same fate. They, therefore, fell back out of fear and the culprits carried away the deceased to the Dhari of the appellant's father.

It appears that at this period of time there was no official warabandi but on the night in question the turn of water of Mathela (P. W. 12) commenced first. Thereafter began the turn of water of Khan and his nephew Anwar, who had a joint cultivation, and lastly commenced the turn of water of Siraj Din (P. W. 11). After Mathela and Khan had irrigated their fields they were all proceeding to the naka from where Siraj Din had to divert the water, when they were accosted and Anwar was attacked. They were together, as they were afraid of the appellant and his party.

After the deceased Anwar was carried away to the Dhari Khan (P. W. 8) rushed to village Handoke to inform Mehdi Khan Lambardar of what had happened and from there immediately proceeded to the Police Station, Baraghar, which was three miles away. The first information report was recorded there at 4 a.m. by Head Constable Ghulam Hussain (P. W. 14) who immediately proceeded to the spot and reached there at 6. a.m. of the 24th of September 1964. The Head Constable found Anwar lying on a cot at the Dhari of the appellant's father. He prepared his injury sheet and despatched the deceased to the Rural Dispensary at Buchheke where the injuries were first medically examined. Blood-stained earth was also seized from underneath the c A on which the deceased was found lying.

The investigation was thereafter taken over by Sub-Inspector Mushtaq Hussain (P. W. 10) who had learnt of the incident while on his way to village Handoke. He went first to the Rural Dispensary of Buchheke, prepared the inquest report and despatched the dead body to the mortuary at Civil Hospital, Nankana Sahib. In the meantime, it appears, the statements, of the witnesses had also been recorded by the Head Constable Ghulam Hussain at about 2 p. m.

The Sub-Inspector inspected the place of the incident in the morning and seized blood-stained earth and a piece of torn loin cloth from the cotton field of the appellant. Subsequently when the accused appeared before the Sub-Inspector and surrendered on the 28th of September 1964, the loincloth of Rang Ali was found to be torn and blood-stained. It was accordingly taken into possession. Rang Ali also offered to produce the weapon of offence and took the police to the Dhari from where a dang fitted with a sue was recovered at his instance. The present appellant also led to the recovery of his Bang from the same Dhari. The piece of torn loin cloth (Exh. P. 1) recovered from the cotton field appeared to match the torn loin cloth (Exh. P. 3) recovered from the person of Rang Ali. Both were accordingly sent for expert examination to the Government Weaving and Finishing Centre, Shahdara, and it was discovered that the quality and texture of both were identical.

The deceased, when examined at the Rural Dispensary, was found to have as many as 8 injuries of which 5 were described as contusions, one as an abrasion and two as incised wounds. On post-mortem examination, however, as many as 12 injuries were found, of which 5 were declared to be contusions, five as abrasions and two as just, swellings. No incised wounds were found by the doctor performing the autopsy. Death was, however; said to have been due to shock caused by the fracture of the skull, injury to the brain and rupture of the left kidney which were all caused by blunt weapon injuries.

According to the prosecution, the incident had been witnessed by Khan, Mathela and Siraj Din, who had clearly recognised the culprits, as the night was a moonlit night.

The defence set up by the accused persons, other than Rang Ali, was that they had been falsely implicated out of enmity. They denied participation in the incident. Rang Ali, however, gave a counter-version of the incident. According to him on the night in question, about 2 hours before day-break, he woke up by chance and came out of the Dhari to case himself. Thereafter, he went to the water channel to wash his hands. From there he saw a person cutting green fodder from the maize field of the appellant. He accordingly went up to the place and challenged the thief. The latter picked up a soil which was lying by his side and attacked Rang Ali. Luckily the blow fell between his feet whereupon Rang Ali who also had a soil with him caused injuries to the thief who subsequently turned out to be Anwar deceased. On Rang Ali's Lalkaras three other persons, namely, Manzoar, Dullah and Daulat Kharal, came there from the Dhari and carried Anwar on a cot to the police station. The police, how ever, refused to record their statements and falsely implicated them in the case. Thereupon they returned to the Dhari with the deceased.

Khan is a Chadhiar by caste but Siraj Din and Mathela are Arains. They are married to sisters of Ibrahim, the victim of the first murder, who was married to a sister of Mathela. In view of this relationship of Siraj Din and Mathela with Ibrahim the trial of abundant caution, decided not to place any reliance on their evidence but believing the evidence of Khan convicted the appellant and Rang Ali. The benefit of doubt was given to the co-accused Akbar and Fazil, firstly because they did not reside at the Dhari of the appellant and secondly because both Mathela and Siraj had stated before the police that Akbar and Fazil were empty-handed. The defence story of Rang Ali was disbelieved, because, no freshly cut fodder or scythe or soil was found in the cotton field and there was no other circum stance which lent any support to this story. Rang Ali and the appellant were, however, convicted and sentenced to death.

The High Court agreed with the findings of the trial Court but reduced the sentence of Rang Ali, because he being a servant of the appellant was considered to have acted under the influence of his master and because it appeared that Rang Ali had no personal motive for killing the deceased.

Learned counsel' appearing in support of this appeal has, however, contended that the Courts below had acted upon principles inconsistent with the safe dispensation of criminal justice in relying upon the solitary evidence of Khan (P. W.), particularly, since he too was a close relation of the deceased and had been found to be untruthful to the extent he had attempted to implicate the two acquitted persons. It is also urged that in appraising the evidence of this witness no importance had been attached to some serious discrepancies which not only seriously affected his credibility but also rendered the defence version more probable.

The first discrepancy upon which reliance is placed .in this connection is the discrepancy in the medical evidence, namely, the injury report prepared at the Rural Dispensary, Buchheke, and the post-mortem report. The doctor, who examined the deceased at the Rural Dispensary, had reported that out of the 8 injuries he found on the person of the deceased on the 24th of September 1964, two were incised wounds, namely, one on the middle front of the right leg 1 ' x 1/3' by bone deep, 5' below the right knee joint, and the other was on the lateral side of the lower end of the left leg 1 ' x by bone deep. In the Court of Session in answer to a Court question he stated that he had given his opinion after examining the edges of these two injuries through a magnifying glass. Such examination had revealed that the edges of the wounds, which were both on bony prominences, were clean cut. He was shown the dang (Exh.P. 4) with its sun but he opined that the incised injuries found by him on the deceased could not have been caused by a weapon of that kind.

Dr. Aftab Ahmad (P. W. 1), who performed the post-mortem examination, stated in answer to a Court question that he too had examined the edges of the injuries Nos. 4 and 5 on the leg which had been described by him as contused wounds, with a glass to find out the precise nature of their edges. His examination, however, revealed that they were not sharp-edged injuries.

Learned counsel appearing for the appellant now contends that in this state of conflict the opinion of the doctor, who carried out the examination at the Rural Dispensary within a short time of the injuries having been caused, should have been preferred, as it was likely to be more accurate, particularly, since he had examined the injuries through a magnifying glass before any healing process had started. In support of his contention he has also relied upon the opinions expressed in Modi's and Taylor's Medical Jurisprudence and has urged that if this evidence is accepted then it clearly shows that none of the persons, who now claim to be the eye-witnesses were there. In fact no body had seen the incident but subsequently, it is suggested, the pro secution had tried to fabricate a story upon the basis of the post-mortem report.

The High Court has preferred the evidence of Dr. Aftab Ahmad in view of his higher- qualifications, particularly, since he too had examined the wounds through a magnifying glass and did not find the two injuries, with which we are now concerned, to be either clean cut or sharp-edged injuries. The possibility o an error being made by the doctor of the Rural Dispensary as to the nature of the injuries cannot be ruled out, for, it is no unlikely for an injury caused by a blunt weapon on a bony prominence to appear as a clean cut wound to an inexperienced person who has not acquired sufficient skill in carrying out post mortem examinations. In the circumstances, we are unable to accept the contention of the learned counsel that the opinion of the doctor at the Rural Dispensary was wrongly not preferred over that of the doctor who performed the post-mortem examina tion by the High Court. The post-mortem, it is true, was held on the 25th September 1964, at 7 a. m. but this was not such a long period after as to completely alter the nature of the injury and transform an incised wound into a contused wound.

The next contention of the learned counsel is that the disco very of a torn piece 'of loin cloth and blood-stained earth from a place in the cotton field of the appellant, some 20 karams away from the water channel, belied the testimony of Khan (P. W. 8) as to the place of the incident. He would have us believe that the deceased Anwar fell at a distance of about 1 or 2 paces from the banna of the water channel upon which the incident took place but the water channel, it is pointed out with reference to the site plan (Exh. PG/3), is actually at a distance of about 20 karams from it. In support of this contention reliance is also placed on the evidence of Mehdi Khan (P. W. 7), the local lambardar, who had stated that a piece of cloth and blood were taken from the cotton field which is adjacent to the water channel and the exact place from where the cloth piece was recovered was at a distance of 20 karams from the water channel.

The High Court has, it appears, not specifically dealt with this aspect of the case but confined itself merely to considering whether the deceased Anwar fell on the banna itself or at a distance of 1 or 2 paces from the banna as stated by Khan (P. W. 8). Learned counsel for the appellant, therefore, con tends that an important piece of evidence has' not been taken into consideration by the High Court. On examining the site plan, however, it appears to us that the piece of cloth was recovered from a place very close to the western banna of field No. 198. In the circumstances, it cannot be said that the evidence of Khan to the effect that deceased fell at a place 1 or 2 paces away from the banna is wholly incorrect. But the question is as to whether the banna referred to by Khan is this banna separating field No. 198 from the other field or the banna of the water channel which runs along the eastern and southern side of field No. 198. T he field of Siraj to which water NN as to be taken is to the South of this field about 5/6 Killas upstream but the naka from which the water was to be diverted was to the north of this field and the deceased was with Khan and the others going to that naka. They were, there fore, clearly not going along the banna of tie water channel shown on the plan.

The question, therefore, arises as to whether there was another water channel to take the water to that field from the main channel shown in the plan Learned counsel appearing for the State has suggested that there must have been some kind of a channel to convey the water to the fields between each of those fields and, as such, it was not unlikely that there was also such a channel along the western banna of the field near which the deceased is alleged to have fallen. The defence, of course, has made no attempt to have this clarified either from the Lambardar or from the Patwati Muhammad Latif (P. W. 9) who prepared the site plan. But the land, which was cultivated by Khan (P. W. 8) and the deceased Anwar, was at a distance of 5/6 Killas from the cotton field of the appellant and the well of Khan (P. W.8) was about 1 squares away from this cotton held towards its West. The evidence of Khan is that after watering their field they went to their well, left their kakis there and then proceeded towards the naka from where the water was to be diverted to the land of Siraj (P. W. 11). This naka was towards the North of the Dhari of Raja, the father of the appellant. This 6hari is shown on the site plan on the East of the cotton field in question. Thus if the naka is to the North of the Dhari it is also to the North of this cotton field and to get the naka the deceased and his companions might well have been proceeding along the banna on the West of the cotton field towards the North when they were attacked. This naka was not pointed out to either the investigating officer or the Patwari and has, as such, not been shown on the site plan but if there was any real dispute as to the place of the incident this would certainly have been done. It appears to us, however, that the argument now advanced has no substance, for, it is based upon a confusion created by the failure of the Patwari to show the naka or the other channels for carrying water to the fields from the main channel on the site plan. It cannot, in the circumstances, be said that the High Court has misread the evidence about the place of the incident.

The next contention urged is that the prosecution evidence is also contradictory with regard to the time of the incident. There is again no substance in this, for, it is clear that at this period of tithe there was no official warabandi and, as such, the exact timings could not be ascertained. The learned counsel for the appellant has, of course, drawn our attention to the statement made in examination-in-chief by Khan to the effect that his turn of water started at about midnight and lasted till a little before sunrise which at the relevant period occurred at 5.54 a. m. In cross-examination, however, he clarified that this was a mistake. His turn actually commenced at 9-30 p.m. and lasted till 1-30 a.m. as he had stated in the first information report. Thereafter, the turn of water of Siraj began and lasted till 4-45 a.m.

This discrepancy has been fully dealt with by the High Court in its judgment and the High Court has, we think, after full consideration of the evidence rightly come to the conclusion that the incident occurred soon after 1-30 a.m. when the turn of water of khan ended and not shortly before sunrise, as suggested by the defence.

The first information report, which was recorded by the Hood Constable Ghulam Hussain (P. W. 14), also shows that the time of recording of the report was 4 a. m. and that the Head Constable had reached the place of the incident which was three miles away, at about 6 a.m. This would not have been possible if the incident had occurred shortly before sunrise. The incident must, therefore, have occurred at or about the time stated by Khan, for he first went to the village to inform the Lambardar and then went to the Police Station. We are unable, therefore, to accept the contention of the learned counsel that Khan (P. W 8) was lying when in cross-examination he corrected himself and stated that his turn of water began at 9-30 p. m. and ended at 1-30 a. m. This is exactly what he had stated in his first information report. The statement made by him in examination-in-chief as to the time when his turn of water began was clearly under some misconception. This discrepancy is, therefore, not of such importance as to discredit the witness altogether.

It is clear that the defence set up by Rang Ali received no support from the evidence in this case. No cut fodder was recovered from the cotton field of Hussain nor was any scythe or dang recovered from there nor was any injury found on Rang Ali. On the other hand, the loin cloth of Rang Ali as also a chadar seized from him were found to have been stained with blood. We are, however, not concerned at present with the case of Rang Ali, for he has preferred no appeal but so far as the appellant Hussain is concerned his defence was that he was not present at the spot at all but was at Nankana Sahib at the relevant time. This plea of alibi has, of course, not been supported by any evidence. But the question is as to whether it can be safely accepted upon the basis of the oral testimony of Khan alone that the appellant was also one of the assailants of the deceased.

It is true that Khan is a close relation of the deceased and also cultivated his lands jointly with the deceased and that the motive alleged by the prosecution was against Khan and not against the deceased. But the fact that Khan was a witness against the brothers of the appellant in the case arising out of the murder of Ibrahim is not by itself sufficient to lead us to the inference that Khan was also inimical towards the appellant. If that had been so then the appellant too would have been implicated in that murder case. That Khan had no personal animus against the appellant is further supported by the fact that even in the first information report lodged-by him in connection with the death of Anwar he did not assign any prominent part to this appellant. We are unable therefore, to accept the contention-that even Khan was not present at the time of the incident and did not see the attack on the deceased. He had lodged the report within 2J hours of the incident and had named all the accused persons therein as also stated that they had carried the deceased to the Dhari of the appellant's father. The deceased was actually found there lying on a cot at 8 a.m. by the Head Constable. If Khan had not been there he could not have given this information. It may be that he tried to rope in the two acquitted accused also. But this does not mean that his evidence against the appellant cannot be relied upon. The Courts below have carefully analysed his evidence upon correct principles and we see no reason to differ from them.

It is not without significance that the deceased should have been found in the Dhari of the appellant's father. There is no explanation as to why he was carried there. If as suggested by Rang Ali he was taken to the Police Station first then one would have expected that if, as alleged by the defence, the police refused to record their statements they would have carried the injured to the hospital. Instead of doing that he would have us believe that they brought him to their own Dhari. This can hardly be believed. Again, if the appellant and his associate were not concerned in this incident then it is difficult to understand why, when the police arrived at the Dhari, no male member was found present there. This is not the conduct of innocent persons. We are, of the view, therefore, that after making due allowances for the discrepancies in the evidence the prosecution has succeeded to prove beyond reasonable doubt that the appellant was also one of the assailants of the deceased.

Learned counsel has lastly contended that the fact established by the prosecution evidence do not make out an intention to kill. It is urged that all that can be said is that in the heat of the moment they attacked the deceased Anwar with dangs which they were carrying just to teach him a lesson for his impertinence in replying to a question addressed to his uncle Khan. Having regard to the injuries found on the deceased; however, which were on vital parts of the body and appeared to have been caused with such force as to have fractured not only the parietal bone but also the temporal and the occipital bones, we are unable to hold that the intention was merely to cause hurt They must be deemed to have intended the natural and inevitable consequences of their rash acts. The conviction was, therefore in our opinion, rightly recorded under section 302 of the Pakistan Penal Code.

The question for consideration still remains as to whether the sentence of death was, in the circumstances, justified, particularly, since a lesser sentence had been awarded to Rang Ali who, according to the prosecution evidence, took an equal part in the attack. In the first information report, as already stated, no prominent part has been assigned to the present appellant nor has any witness in his testimony in the trial Court alleged that he took a more aggressive part is the incident. Learned counsel for the State has also not been able to place before us any circumstance upon which the case of the appellant could be legitimately differentiated from that of the convict Rang Ali. In the circumstances, we are of the opinion that the High Court was in error in making a distinction between the cases of these two merely on the ground that Rang Ali was a servant of the appellant. There was no evidence that he had acted under the influence of his master. Rang Ali was not a person who was under so great influence of the appellant that he could not have refused to participate in such a homicidal attack on the deceased. We are, therefore, of the view that there was no valid ground far discriminating against the present appellant. We would, there fore, reduce his sentence also to one of transportation for life, but subject to this modification of the sentence uphold his conviction and dismiss his appeal.

Appeal dismissed.

Sentence reduced.

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