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. 6 of 1965, decided on 20th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 3rd April 1964, in Criminal Appeal no. 4 of 1964).
Ss. 302 & 304‑Conviction under Ss. 302 & 304‑Acquittal by High Court‑Leave to appeal granted to consider whether on facts and circumstances High Court acted on correct principles or upon principles consistent with safe dispensation of criminal justice in acquitting accused‑Constitution of Pakistan (1961), Art. 58(3).
-----
---‑Appeal against acquittal‑High Court arriving at conclusions reasonably possible after careful consideration of relevant evidence‑Supreme Court would not, in such appeals, re‑appraise evidence and come to its own independent conclusion upon that evidence‑Acquittal not interfered with‑Constitution of Pakistan (1961), Art. 58(3).
---
--‑Witness‑Chance witnesses and self‑confessed criminals not available for examination by police on date of incident‑Such witnesses examined, two days later "because it only transpired in course of investigation that they too had seen incident"‑Explanation, held, hardly convincing and presence of witnesses at spot at time of incident seriously doubtful.
------
---‑Appraisal of evidence‑Witness stating before police that he saw accused proceeding to deceased's shop to purchase snug' but in statement before Court stating that he saw accused actually loading his gun‑Introduction of new story a definite attempt at embellishment ‑ Such embellishment, held, affected witness's veracity and rendered it unsafe to rely upon his evidence.
Manzur Qadir, Senior Advocate Supreme Court (Aftab Farrukh, Advocate Supreme Court with him) instructed by Muhammad Nazar Khan, Attorney for Appellant.
Mahmud Ali, Senior Advocate Supreme Court instructed by M. Siddiq, Senior Attorney for Respondent No. 1.
Raja Said, Akbar, Advocate‑General West Pakistan (R. S. Sidhwa, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.
Date of hearing : 20th October 1967.
‑This appeal, by special leave, is directed against a judgment and order of a Division Bench of the High Court of West Pakistan, Peshawar, acquitting the respondent No. 1 herein of charges under suctions 302 and 324 of the Pakistan Penal Code.
The said respondent was charged with having shot at and killed one Haji Saleh Muhammad on the 27th of July 1963, at 5‑45 p. m. in the shop of his wife's brother Shahzada, in bazar Khawaja Ganj, Hoti in the district of Mardan. He was also accused of having injured Ghani Muhammad, the son of the deceased Haji Saleh Muhammad, on the nose by another shot fired from near the gate of a garden of the Nawab of Hoti after Ghani Muhammad had pursued him to the bridge of the river Kalpani. A pellet from this shot, it is alleged, grased the nose of Ghani Muhammad and caused it to bleed.
One Fazal Karim, a son‑in‑law of the deceased Haji, it is alleged, was murdered during the night between the 22nd and the 23rd of July 1963, by two persons named Lal Khan and Zarshad. Lal Khan was arrested but Zarshad, it is said, absconded. The respondent, who was a friend and associate of Zarshad, it is alleged, then decided to murder Haji Saleh Muhammad, who was prosecuting that case as a complainant, in order to prevent him from pursuing the case against the absconder Zarshad.
With this motive, it is further alleged, the respondent finding the deceased alone with his brother‑in‑law and partner Shahzada in their shop, when the other shopkeepers were busy saying their Asar prayers in a nearby mosque, suddenly turned up at the bazar armed with a single‑barrelled gun and fired one shot at the deceased from the footpath outside and ran away. The report of the shot attracted Mukammil Shah (P. W. 4), a brother of Shazada and Ghani Muhammad (P. W. 5), a son of the deceased, just as they were coming out of the mosque after saying their prayers. Both of them saw the respondent going away with the gun and chased him but Mukammil Shah gave up the chase after a little while. Ghani Muhammad, however, pursued the respondent up to the bridge of river Kalpani. At this point while Ghani Muhammad was still on the nearer side of the bridge the respondent, who was at the farther end of the bridge near the gate of a garden of the Nawab of Hoti, aimed his gun at Ghani Muhammad and fired. Fortunately only one pellet from the cartridge grased the nose of Ghani Muhammad and caused it to bleed. The respondent then immediately disappeared into the garden and Ghani Muhammad returned to the shop with his nose bleeding. At the shop he informed both Shahzada (P. W. 2) and Mukammil Shah (P. W. 4) that the respondent had fired at him and injured his nose before escaping into the garden.
Three other persons, namely, Maroof Shah (P. W. 6), Mallazai (C. W. 1) and Sultan (C. W. 2), were, according to the prosecution, also attracted to the spot by the report of the gun‑shot and they too claimed to have seen the assailant firing and then running away from there.
An Assistant Sub‑Inspector of Police, who was on patrol duty in the locality, heard of the incident at about 6 p. m. and rushed to the spot where he recorded the first information report at the dictation of Shahzada (P. W. 2). In this report, however, Shahzada did not name either Maroof Shah or the Court witnesses Mallazai and Sultan as witnesses of the incident nor did he say anything about the injury to the nose of Ghani Muhammad who had, in the meantime, been sent to fetch a Charpoy. The Sub- Inspector of Police took up investigation immediately and recovered two pellets from an iron safe in the shop as also seized four card‑board disks lying there. He also noticed two pellet marks on the walls of the shop. The inquest report was then prepared and the dead body was despatched to the mortuary. The statements of the witnesses Shahzada, Mukammil Shah, Ghani Muhammad and Maroof Shah were also recorded on the same evening.
At the hospital another pellet was recovered by the doctor from the Charpoy on which the deceased was carried to the mortuary. The investigating officer also seized a single‑barrelled gun from Mian Dad, the father of the respondent Hamidullah. Mian Dad was the licensee of the gun but Hamidullah was also recorded as a retainer thereof. The gun was, however, not sent to the Ballistic Expert for examination nor is there any note in the recovery memo. to show as to whether the gun was found to be smelling of fresh discharge.
The statement of Mallazai was recorded on the 28th of July 1963, and that of Sultan on the following day, namely, the 29th of July 1963.
The post‑mortem examination of the dead body was performed on the 28th of July 1963, at 7‑30 a. m. and as many as 13 firearm injuries were found, of which 10 were described by the doctor as wounds of entrance. All these injuries were within a radius of 12 to 15" spread over the left side of the neck, the back of the left shoulder, the lateral aspect of the right upper arm in the upper third, the top of the right shoulder, the front of the neck and the right side of the neck. Two other wounds found on the front of the left shoulder and the top of the right shoulder were stated to be wounds of exit and a third on the left shoulder was said to have been caused by the lodging of a pellet. This also was removed and handed over to the police.
On internal examination the walls of the thorax and the first rib on the left side were found injured, but there was no other internal injury. The death, in the opinion of the doctor performing the post‑mortem examination, was due to shock and bleeding from the left sub-clavian, the left carotid arteries and the left jugular veins.
In cross‑examination it was elicited from the doctor that the five pellet wounds, noted as the first injury, on the left side of the neck and the pellet wound on the back of left shoulder noted as injury No. 2 in the post‑mortem report could have been caused by a single shot fired from the left but the two entrance wounds noted as injury No. 4 on the lateral aspect of the right upper arm in the upper third could not have been caused by the shot which caused the other injuries. The doctor was also of the opinion that the injury described as the ninth injury on the front of the neck in the middle line, " above the supra‑eternal notch, could not have been caused by either of the shots causing the other injuries. Thus according to him at least three shots must have been fired to cause the injuries found on the deceased.
This doctor also examined Ghani Muhammad (P. W. 5) on the 27th of July 1963, at 11 p. m. and found a lacerated wound, 1/6 in diameter, on the left side of his nose, which was simple in nature but was caused, according to him, by a blunt weapon. He, however, was not it seems certain of this as he also opined that since this wound was circular in shape with irregular edges it might have been caused by a pellet.
In support of its case the prosecution examined Shahzada (P. W. 2), Mukammil Shah (P. W. 4), Ghani Muhammad (P. W. 5) and Maroof Shah (P. W. 6) as eye‑witnesses of the occurrence, but gave up Mallazai and Sultan, not only because the investigating officer had examined them on the 2nd and the 3rd day of the incident respectively, but also because they had neither any place of residence or business near the spot nor had been named in the first information report. The trial Court, however, took the view that since they had been examined in the committing Court as eye‑witnesses of the incident it was bound to examine them as Court witnesses in accordance with the instructions contained in Standing Order No. 39 of the High Court. They were, accordingly, called and examined as Court witnesses.
The respondent, who was arrested on the 2nd of August 1963, after he had surrendered himself before the investigating officer, set up an alibi. He stated that a few days before the occurrence he had gone away to Rawalpindi for treatment but when he learnt that he had been involved in a case he returned to Mardan and surrendered himself. He further maintained that the prosecution witnesses Ghani Muhammad, Shahzada and Mukammil Shah had not seen the occurrence but had falsely charged him at the instance of his enemies Hakim and Baz Muhammad who owned shops in the same bazar close to the bus stop. Maroof Shah, he said, was a distant tarboor of the deceased and had been prevailed upon by Ghani Muhammad and others to give false evidence against him. The Court witnesses too, were, according to him, false witnesses who had come forward to oblige Maroof Shah. As for the injury on the nose of Ghani Muhammad he suggested that it was self -inflicted to boost up the prosecution case. He also denied that he was a friend of Zarshad who was absconding in the murder case of Fazal Karim.
The trial Court disbelieved the defence plea, because no evidence was adduced in support of it. In fact, the trial Court even doubted if the alleged enemies of the respondent, namely, Hakim and Baz Muhammad, at all existed. As for the witnesses Shahzada, Ghani Muhammad and Mukammil Shah, the trial Court, in spite of their close relationship with the deceased, found no difficulty in accepting their testimony with regard to the incident which had taken place in broad daylight in a bazar, particularly, since they had charged the respondent alone with the guilt. ID any event, the trial Court was of the view that even if their evidence required corroboration by reason of their close relationship with the deceased such corroboration had been amply furnished by the evidence of Maroof Shah and the two other Court witnesses. Maroof Shah and the Court witnesses, it was held, were independent and disinterested witnesses who had no reason at all to falsely implicate the respondent. They had, in the opinion of the trial Court, given evidence, because "they were prompted by a desire to see justice vindicated". The suggestion that Ghani Muhammad had inflicted an injury upon himself to boost up the prosecution case was rejected as an absurd sugges tion.
The failure of Shahzada to mention the names of the Court witnesses and the injury on Ghani Muhammad to the police officer while lodging his first information report was explained away as minor omissions committed on account of the shock that the incident must have caused him not only because a closer relation was killed but also because it exposed his own person too to grave peril. He could not, it was said in the circumstances, be expected to have registered each and every fact and to have meuaoned the same in his report.
The doctor's opinion as regards the number of shots fired, it was held, could not be allowed to prevail over the direct evidence of the ocular witnesses who have been found to be otherwise trustworthy. In any event, the doctor's observations were not, it was held, totally irreconcilable with the story of only a single shot having been fired, because the possibility of the wounds on the right side of the deceased having been caused by the pellets after a re‑bound could not be excluded if the deceased had perchance turned his neck to face the person shooting.
In view of these possibilities the trial Court felt that the direct testimony of the ocular witnesses, which was of a consistent and convincing nature, should be preferred.
Lastly it was observed that the evidence of Ghani Muhammad (P. W. 5), if believed, was not only proof of his own injury but also proof against the accused in respect of the murder charge. The respondent was, accordingly, convicted on both the charges and sentenced to death under section 302, P. P. C. For the injury to Ghani Muhammad he was only convicted under section 324 of the Pakistan Penal Code and sentenced to suffer one year's rigorous imprisonment in the event of the death sentence not being confirmed by the High Court.
From this conviction the respondent preferred an appeal to the High Court and the sentence of death imposed upon him was also submitted for confirmation before the High Court under section 374, Cr. P. C. The High Court agreed with the trial Court that the pleas raised by the defence were false but did not agree that the prosecution evidence was sufficient to establish the guilt of the respondent. In its view, the evidence of motive had sufficiently established that the respondent was a friend and associate of Zarshad and that both of them were previously jointly concerned in illegal and criminal activities. Hence it was not unlikely that he had, due to this association with Zarshad, been regarded as also an enemy by the deceased and the other members of his family. Ghani Muhammad, the son of the deceased, and his two uncles (maternal) Shahzada and Mukammil Shah could not, in the circumstances, be regarded as wholly disinterested or uninimical witnesses. Their evidence, in view of their, close relationship with the deceased, could not, therefore, it was felt, be accepted without corroboration.
This corroboration, which was said by the trial Court to have been furnished by the evidence of Maroof Shah (P. W. 6) Mallazai (C. W. 1) and Sultan (C. W. 2), was found to be totally unreliable by the High Court. Both Mallazai and Sultan were found not only to be chance witnesses who had given no satisfactory explanation of their presence at the spot, but were also discovered to have made conflicting statements. Mallazai had actually armed the respondent with a double‑barrelled shotgun and both bad placed a third person in the shop besides the deceased and Shahzada (P. W. 2). They were both even otherwise found to be persons on whose word of mouth implicit reliance could not be placed. Mallazai and Sultan, it appears, admitted that they were both partners in crime and had together been challaned earlier by the police in theft and abduction cases. Sultan' was also admittedly entered as a bad character in the police records. It was also found that Sultan had omitted to mention the presence of Shahzada in the shop both in his statement recorded under section 164, Cr. P. C. as well as in his statement in the committing Court.
As for Maroof Shah (P. W. 6) the High Court was clearly of the view that the fact that his name was not disclosed in the first information report lodged by Shabzada was such an important omission that the only conclusion that could be drawn from this was that "Maroof Shah was nowhere in the picture when the first information report was made". This view was further held to have received confirmation from the admission of both Shahzada and Maroof that when the first information report was being made Maroof Shah was present and that he had earlier informed Shahzada that he had himself also seen the accused firing the shot and running away. Furthermore, even Maroof Shah could not be regarded as anything but a chance witness, since his shop lay in a by‑lane from where the shop in which the Haji was killed was not visible. It bad become necessary, therefore, to bring Maroof Shah also to the mosque for offering his Asar prayers. His evidence was also found to be not free from "significant contradictions" which were clearly attempts at embellishment made to improve upon the version given by him before the investigating officer. In the result none of these three witnesses were considered to be reliable nor could their evidence be treated as having satisfactorily corroborated the evidence of the three interested witnesses.
The story of the chase given by Ghani Muhammad and the subsequent injury to his nose as a result of a shot fired by the respondent was also disbelieved, for, it was found on a reference to the site Flan that the distance from which the respondent is alleged to have fired was at least 150 yards away from the place where Ghani Muhammad was at the time and this distance was "clearly much too long a distance for any pellet to hit". The fact that the doctor also could not give a positive opinion as to the nature of the injury on the nose of this witness was considered to be a factor which created further doubt as to his presence at the place, particularly since the injury was not mentioned in the first information report lodged by Shahzada, although according to Ghani Muhammad himself he had informed Shahzada about it before the police officer arrived on the scene. Taking these factors into consideration the High Court was of the impression that the injury on Ghani Muhammad's nose "was clearly invented later to boost up the prosecution case".
Lastly the serious contradiction furnished by the medical evidence in the case as regards the number of shots fired was, it appears, given particular significance in the High Court. so far so that the High Court itself felt it necessary to call and examine the Forensic Expert as a Court witness and on this additional evidence came to the conclusion that even if three shots were not fired as opined by the doctor at least two shots must have been fired to produce the injuries found on the deceased. Therefore, having regard to the nature of these injuries, their location and the area of their spread it was improbable that all of them could have been caused by one shot alone from the distance alleged by the prosecution. This too, in the opinion of the High Court, created a serious doubt as to the credibility of the ocular testimony, which was by itself, by no means, free from other serious infirmities. The result, therefore, was that the High Court was not satisfied that the case against the respondent had been proved beyond reasonable doubt. His appeal was, accordingly, accepted and he was acquitted of the charges levelled against him.
Shahzada, the brother‑in‑law and partner of the deceased has now come up on appeal to this Court by special leave, which was granted to consider whether having regard to the facts and circumstances of this case the High Court had acted upon correct principles or upon principles consistent with the safe dispensation of criminal justice in acquitting the respondent Hamidullah.
Learned counsel appearing to support the appeal has taken great pains to analyse the evidence adduced in this case and has endeavoured upon several plausible hypotheses to establish that the medical evidence is by no means inconsistent with the prosecu tion case that only one shot was fired. He has urged that it is possible to demonstrate that if a shot is fired at a person engaged in saying his prayers then it is not inconceivable that a single shot may cause all the injuries actually found on the deceased if he was at some stage between Rakoo and Sajda. The learned counsel has also relied upon certain discrepancies between the inquest and the post‑mortem reports which, according to him, render the medical opinion less reliable. For instance, it is pointed out that the injury on the left side of the neck is not to be found in the inquest report.
The doctor's opinion is also sought to be assailed on the ground that certain manifest inaccuracies are contained therein as to the possibility of speech after the carotid arteries and jugular veins are cut. It is, therefore, urged that the medical evidence was by no mans so sacrosanct that it had, as opined by the High Court, to be preferred over the ocular testimony. On the other hand, these defects in the medical opinion indicated, if anything, that the doctor who performed the post‑mortem examination was either not sufficiently experienced or was not giving evidence of an unimpeachable character. This should, according to the learned counsel, have placed the learned Judges of the High Court upon enquiry as to the extent to which the medical opinion should be relied upon in preference to the ocular testimony.
Learned counsel has also endeavoured to establish that the High Court was wrong in treating Shahzada, Ghani Muhammad and Mukammil Shah as inimical witnesses, for, there is no direct testimony of any personal enmity between these witnesses and the respondent apart from the fact that he was an associate of a person charged earlier with the murder of the son‑in‑law of the deceased Haji Saleh Muhammad.
The rejection of the evidence of Maroof Shah and that relating to the injury on the nose of Ghani Muhammad has also been criticised with some force and it has been urged that it is improbable that these witnesses would rope in a wholly innocent person leaving out altogether the real culprit in a case which occurred in broad daylight in a public bazar. The omission of the names of the Court witnesses from the first information report is, it is said, understandable in this place, for the relations of the deceased could not have been certain at that stage as to which of the persons who had seen the incident would support the prosecu tion case.
We have, however, after examining the evidence with the assistance of the learned counsel, come to the conclusion that this is not a fit case in which this Court should interfere. In an appeal against acquittal it is not for this Court to re‑appraise the evidence and come to its own independent conclusion upon that evidence. It is now well‑settled that acquittals are not to be interfered with d if it is found that the High Court has arrived at conclusions which were reasonably possible after a careful consideration of the relevant evidence on the record.
In the present case, this has certainly been done and even the learned counsel appearing for the appellant was fair enough to concede that he would not go to the extent of saying that the conclusions arrived at by the High Court were not reasonably possible. The High Court has dealt with the evidence critically and exhaustively upon correct principles and after doing so has come to a conclusion which cannot be characterised as either perverse or arbitrary.
The reasons given by the High Court for disbelieving the ocular testimony of the three allegedly independent witnesses Maroof Shah, Mallazai and Sultan are by no means insubstantial or irrelevant. None of them were persons on whose word of mouth any implicit reliance could be placed. The two examined as Court witnesses were not only mere chance witnesses but also self‑confessed criminals who were evidently not available for examination by the police on the date of the incident. They were examined two days later, because, as stated by the investigating officer, it only transpired in the course of investigation that they, too had seen the incident. This explanation is hardly convincing, if they were at the place when the incident took place and witnessed would also have been present there when the police officer arrived and would have been examined. The fact that they were not examined then gives rise to serious doubt as to their presence at the spot, particularly, since they had no place of residence or business there.
Similarly the presence of Maroof Shah also was not free from suspicion, for, he too was not named as an eye‑witness in the first information report, although he now maintains that he had informed Shahzada that he too had seen the incident and was actually present there when the police arrived. If this was so then there was no reason for Shahzada not naming him as an eye -witness. Apart from this, he also tried to improve upon the version he earlier gave to the police by introducing the story of his having seen the respondent Hamidullah actually leading his gun in the middle of the bazar. In his police statement he had only stated that when he saw Hamidullah first he appeared to be proceeding to the shop of the deceased to purchase snuff. This definite attempt at embellishment clearly affected his veracity and rendered it unsafe to rely upon his evidence.
In this state of affairs the High Court could not be reasonably expected to treat this evidence as sufficient corroboration of the testimony of the other three closely related witnesses which was itself not free from infirmities and had at least in one material respect been clearly contradicted by the medical opinion concerning the number of shots fired at the deceased. This contradiction could not have been ignored nor can we at this stage try to remove or minimise this contradiction upon the basis of purely hypothetical situations for which no foundation has been laid in the course of cross‑examination of the witnesses.
In the circumstances, we find ourselves unable to accept this appeal which is, accordingly, dismissed.
Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer