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Criminal Appeal No. 4‑P of 1967, decided on 2nd April 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench; dated the 17th August 1967, in Criminal Appeal No. 24 of 1966).
Appreciation of evidence by trial Court must be given due weight and importance‑Trial Court's judgment of credibility of witness--‑Not to be lightly discarded‑--Penal Code (XLV of 1860), S. 302.
S. 417‑‑Appeal against acquittal ‑Appellate Court should bear in mind that presumption of innocence of accused strengthened by acquittal--- Presumption not to be lightly rebutted.
Masoom Shah Sayed, Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Appellant.
Said Akbar Khan, Advocate‑General West Pakistan (Abdul Majid Sheikh, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.
Date of hearing: 2nd April 1968.
This is a direct appeal to this Court under Article 58 (2) (b) of the Constitution.
The appellant and his brother Mir Baz, were charged and tried under section 302/34 of the Pakistan Penal Code for having, on the 1st February 1965, at about Peshin. Wella, killed their father's step‑brother Jan Muhammad, in furtherance of their common intention, in a lane passing by their house at Tittar Khel Guli Jan, Police Station Pezu, in the District of Bannu. The learned Additional Sessions Judge of Derajat acquitted them both. Against this acquittal the State moved the Peshawar Bench of the West Pakistan High Court. The appeal was heard by a Division Bench, consisting of Mian Shakirullah Jan and Abdul Ghani khattak, JJ. They disagreed between themselves. Shakirullah Jan, J. was of the opinion that the prosecution had succeeded in establishing, beyond any reasonable doubt, the guilt of both the accused persons. He, accordingly, found them both guilty, convicted them and sentenced the appellant to death but the so‑accused Mir Baz was given the lesser sentence of transportation for life. Abdul Ghani Khattak, J., on the other hand, was of the opinion that the case against them way not free from doubt and, therefore, no sufficient ground had been made out to set aside the order of acquittal passed by the Additional Sessions Judge.
In view of this disagreement, the appeal was placed under section 429 of the Code of Criminal Procedure before Faizullah Khan, J. Thelatter, agreeing partially with Mian Shakirullah an, J., convicted the appellant under section 302, P. P. C. ad sentenced him to death, but upheld the acquittal of brother Mir Baz. The appellant has now come up in appeal this Court.
This is rather an unusual ease, for, there was absolutely no previous enmity between the parties and they, all presumably lived peacefully in the same Mohalla in more or less contiguous houses until the fateful day. The only evidence of any quarrel has been adduced by the prosecution is over a trifling matter. It appears that the Imam of the Mosque .of the parties concerned wanted to get the mosque white‑washed. Accordingly, on the day of the incident, at about Peshin Wella prayer he quested the father of the appellant to lend a man for the job.
The latter expressed his inability to do so. On this, the deceased who was also present in the mosque, volunteered to furnish the help needed by the Pesh Imam. This, it is alleged, infuriated the father of the appellant who asked the deceased if lie thought that he was a bigger man. Then altercation ensued and exchange of abuses took place between the deceased and his step‑brother in which the appellant, who was also present in the mosque, took part. Other people, however, intervened and took the deceased out of the mosque into the chowk. The appellant and his father remained inside the mosque to complete their prayers. There after, the appellant went to his house but returned soon after armed with a rifle and called upon the deceased to stand up and face him for the abuses he had earlier given. The deceased who was sitting on a charpoy with his real brother's son, Muhammad Nawaz (P. W. 4), got up but was pulled down. At this stage, the father of the appellant came out of the mosque, went towards his son and said something to his son which was not heard by the others. Thereupon, the appellant went away but his father came and sat by the deceased on the charpoy. A little later, the deceased got up to go to his house. Muhammad Nawaz (P. W. 4), apprehending further trouble decided to follow him. When the deceased passed by the entrance of the appel lant's house, the acquitted accused Mir Baz, it is said, rushed out, caught hold of the deceased and turned him round. At this stage, the appellant who was standing behind the boundary wall of his house, fired at the deceased and fatally injured him. The culprits then disappeared.
Muhammad Nawaz (P. W. 4), who was 9 or 10 paces behind and Muhammad Nur (P. W. 5), a real brother of the deceased, who was at the time sitting on a charpoy in the courtyard of his own house, claim to have witnessed the incident. The latter's attention was attracted when he heard the acquitted accused saying to the deceased "Be Ghairat, how will you escape now" or words to that effect. On hearing this he got up and carne to the lane where he saw Mir Baz holding the deceased and the appellant firing with a rifle from behind the wall of his own house. Both he and Muhammad Nawaz rushed up to the deceased after the culprits had decamped and carried him to his house. The deceased who was then alive and in full possession of his senses, was saying to every one that while Mir Baz held him, Gut Nawaz had shot him. Both these witnesses maintained that they had recognised Gut Nawaz as the person who had fired as his neck and face were visible above the wall which was of a man's height. This indicated that the appellant was standing on something and this something, according to the witness Muhammad Nawaz, was a cattle manger which he knew to be located at the place where the appellant was standing.
Muhammad Nawaz (P. W. 4), after carrying the deceased to his house, left for Police Post Shahbaz Khel, to lodge his report. He did this at 3‑50 p.m. It was recorded by the Moharrir Constable Surat Khan (P. W. 9) and was sent to the Police Station Pezu, where it was registered at about 4‑25 p.m.
In the First Information Report the version is slightly different. It is recorded therein that' after the exchange of abuses in the mosque, the appellant and his father both went to their house but thereafter, when the deceased was going towards his house, Mir Baz caught hold of him in the lane and Gul Nawaz fired at him with a gilty' rifle from behind a wall and this shot hit the deceased on his left shoulder.
The case was investigated by Muhammad Yar, Assistant Sub‑Inspector of Shahbaz Khel Police Post. He received intima tion of the occurrence while he was at Police Station Pezu. He sent from there by lorry to Shahbaz Khel. At the Shahbaz Khel Adda he found Muhammad Nawaz (P. W. 4), waiting with Head Constable Gulfaraz, some other constables and one Hashntatullah (P. W. 7). He picked them all up in his lorry and reached Tittar Khel which was 12 to 14 miles away from Police Station, Pezu, soon after 5 p.m. From the Adda he went straight to the house of the deceased where he found him lying on a charpoj, inside a room. As the deceased was still in his proper senses and could talk coherently, he recorded his dying declaration in the presence of Hashmatullah (P. W. 7) and Head Constable Gulfaraz (P. W. 8).
The dying declaration is to the following effect:
The Pesh Imam of the mosque requested the father of the appellant to lend a boy to help in the white‑washing but he regretted his inability to do so. The deceased then offered to furnish the help. This was resented by the father of the appellant. Then the appellant, who was with his father at the time; went home and came back with a gilty' rifle, held under a permit. The deceased, who was sitting in the chowk, got up to go to his house but the father of the appellant asked him not to go as his sons Gul Nawaz and Mir Baz would kill him. He replied that he had done nothing for which they should kill him and started for. his house. When he was in the lane, Mir Baz caught hold of him and Gut Nawaz firing his rifle from the wall, injured him. He was hit on the left shoulder and fell down. This incident had been witnessed by Muhammad Nawaz 'and Muhammad Noor. There was no previous enmity.
The Investigating Officer, after recording the dying declara tion immediately arrested the appellant and his brother Mir Baz from their house as also seized the rifle produced by the appellant along with its permit. Some blood‑stained earth was also taken into possession from the place of occurrence in the lane and a site plan was prepared.
This site plan (Exh. P. C.) discloses that the place from where the blood was taken, was at a distance of 3 paces from the mud wall from behind which the shot was said to have been fired. This wall was six feet high and on the side falling within the house there was a cattle manger 2 feet in height. Opposite to this wall, on the other side of the lane, was the baithak of the appellant's father and the place where the deceased fell was only 8 paces from the entrance to the baithak. Muhammad Nur was at a distance of 6 paces when he saw the deceased being hit and Muhammad Nawaz (P. W. 4) was 10 paces behind. One other important fact that emerges from this site plan is that if the deceased was proceeding from the chowk to his house, as stated by the witnesses, he would have to proceed from East to West and then his right side would be towards the North side and the wall ‑from which the shot was alleged to have been fired would also be on the same side. Thus, unless the deceased was turned round, it would not have been possible for him to be hit on the left side as found by the doctor.
The medical evidence of the injuries found on the deceased is to the following effect:
"(1) One entrance wound 1/3' x 1/3' on the lateral aspect of left arm on the upper part, humerus fractured. Corresponding hole was found in the shirt:
(2) One firearm wound 4" x 4 on the left axilla on its lateral wall.
(3) One firearm wound 5' x 5" on the upper part of left lateral aspect of chest 3rd, 4th, 5th and 6th ribs were fractured."
Injuries Nos. 1 and 3 are found to be wounds of entrance but the doctor opined that the injuries on the deceased appeared to have been caused with one shot and that the direction of the injuries was from the left to right and slightly downward. It would thus appear that the bullet first entered the upper part of the left arm and emerged through the left axilla but again pierced through the left lateral aspect of the chest wall and the left lung. During its course it fractured the humerus and 3rd, 4th, 5th, 6th and 8th ribs and lodged in the back of the right chest wall in the 9th intercostal space. It was recovered from there and was found to be 1 long weighing 126 grains.
The prosecution case depended on the ocular testimony of Muhammad Nawaz (P. W. 4), and Muhammad Nur (P. W. 5), and the dying declaration (Exh. P. B.) As against .this the appellant denied that he had shot the deceased or that he was present in the mosque when the altercation took place. He and his brother both pleaded false implication. The dying declaration was, according to them, a false and fabricated document. The rifle was stated to have been produced by their father. They maintained that Muhammad Nawaz and Muhammad Nur had got them implicated as they were both inimical to their father.
It may also be mentioned here that the rifle was sent for examination to the Fire‑Arms Expert, Peshawar (P. W. 6), along with the 303 metallic bullet recovered from the dead body. The Expert was, however, unable to give any definite opinion. He opined that the bullet sent to him for examination only appeared to have been fired through the rifle No. 560/A and explained that when he gave such an opinion, it only meant that the data collected by him was not sufficient to lead to any positive conclusion. To quote his own words:
"In the present case I have used the word appear' and it means that the crime bullet had been fired from the rifle sent tome only possibly."
The trial Court disbelieved the ocular testimony and held that the dying declaration "is not worth the credence the law extends to the words of a dying man".
The ocular testimony was disbelieved not only because it was the testimony of two close relations of the deceased which had not received any independent corroboration, but also because the witnesses were found to have improved upon their versions at each stage. Apart from this, they were found also to have contradicted each other on some material points.
Thus, in the first information report (Exh. P. A.), lodged by Muhammad Nawaz, no mention was made of the first appear ance of the appellant, Gul Nawaz, armed with a rifle in the chowk, after the exchange of abuses in the mosque. Nur was there any thing in it about the challenge to the deceased. The first information report did not also disclose as to how Mir Baz had got hold of the deceased in the lane. There was nothing in it about Mir Baz turning the deceased around. All that was stated therein, was that when Mir Baz caught hold of the deceased the appellant fired from the cover of the wall and the deceased was hit on his left shoulder. It will be observed that in this report Muhammad Nawaz (P. W. 4) had not even mentioned that he was following the deceased. He was duly confronted with the first information report but he maintained that the report had been wrongly recorded, for, he had mentioned these details to the Muharrir Constable who had recorded his first information report. The Constable Surat Khan (P. W. 9), however, stated that he had correctly recorded the report, without any alteration and after recording the same had read it over to the informant who had thumb‑impressed it after admitting it to have been correctly recorded.
It was also elicited from Muhammad Nawaz (P. W. 4) in cross‑examination that the place of occurrence was not visible either from the mosque or from the chowk outside the mosque. He also admitted that when Mir Baz came out of the entrance door of his father's baithak to go after the deceased, he was only 2 or 3 paces away from Mir Baz, yet he made no effort either to catch bold of Mir Baz or to warn his uncle or to intervene in any other way, even though Mir Baz was empty‑handed. This unnatural conduct on his part, when he maintains' that he even saw Gul Nawaz standing behind the wall with a rifle in his hand, was treated by the learned trial Judge as an indication of the fact that he was not there in the lane when the incident took place. If he had been there, as maintained by him, then he would surely have, at least, warned the deceased or raised an alarm.
Similarly, Muhammad Nur (P. W. 5), it was found, had stated in his statement to the police that when he heard the voice of Mir Baz in the lane he looked out and saw that as soon as Mir Baz had caught hold of the deceased from behind Gul Nawaz fired and injured the deceased. In his evidence, however, he stated that when he came out he "saw Mir Baz holding the deceased" and at that time Gul Nawaz fired resting his 'rifle on the wall. At this stage the back of the deceased was towards him.
In cross‑examination this witness had at first said that from where he was sitting in his house "the path of occurrence was visible." But later he contradicted himself and said that: "In fact I was sitting on a charpoy in the compound of my house at such a point that I could not see the path of occurrence." Again when asked as to how Mir‑ Baz was holding the deceased, he tried to improve upon his previous version and stated that at first he only heard Mir Baz call out "Be‑ghairat" and "how can you escape". He recognised the voice of Mir Baz, got down from his charpoy and came to the lane. He then saw Mir Baz "holding the hand of the deceased as if dragging." He was confronted with his previous statement to the police but he maintained that it would be wrong to say that Mir Baz had held the deceased from behind. He had no hesitation in repudiating the correctness of his previous statement. In view of these contradictions and discrepancies the trial Court found him also to be unworthy of credit.
As regards the dying declaration; the trial Court formed the impression that it was a fabricated document, prepared after wards, because, according to the medical evidence, the injury found on the deceased was "capable of producing a shock at once in an old man". The deceased was about 60 years old. This possibility was put to the Investigating Officer (P. W. 11), who had recorded the dying declaration but he maintained that the deceased was not then in a state of shock and could talk.
The trial Court was also disinclined to rely upon the dying declaration because the recorder of it had been contradicted by the marginal witnesses thereof as to the manner of its recording. The Investigating Officer had stated that he had only asked the deceased his name, parentage, etc., and as to how the occurrence had happened. Thereafter, the deceased started narrating the occurrence and he recorded it without any addition or subtraction, in the same narrative form. He categorically denied the suggestion that he had put questions to the deceased one after the other and recorded the answer to each such question. On this point, however, both the marginal witnesses of this document had stated that it was recorded in question and answer form. One of the marginal witnesses was, of course, a Head Constable, Gulfaraz (P. W. 8), and the other was Hashmatullah 1P. W. 7). Gulfaraz stated in his cross‑examination that "the dying declara tion of the deceased was not volunteered by the deceased in a narrative form from one end to another. Instead the A. S. I. had been asking questions and the deceased answered those, the questions being how he was shot and after its answer the deceased was asked why be was shot and so on."
Hashmatullah (P. W. 7) had also stated that "the Thanedar asked the deceased questions how he was shot and by whom he was shot etc. The deceased gave his answers and the Thanedar recorded them.
From this the trial Court came to the following conclusion:--
"It will be clear from the above that the two marginal witnesses of the dying declaration contradict the recorder thereof on many a. material point. If we further appreciate the fact that of all the people the A. S. I. chose one of his subordinates and another, who appears to be a stock‑in‑trade witness, we would naturally, be tempted to question whether Exh. P. B: is really what the deceased had stated On the top, if we take note of the doctor's opinion regarding the possibility of the deceased's receiving the shock at once, whatever weight or sanctity Exh. P. B. could beg would evaporate. Otherwise too, Exh. P. B. leaves us in doubt as to how the deceased was shot on the left shoulder from the right side while going towards West with the shooter allegedly on the North."
In the High Court Abdul Ghani Khattak, J. was impressed by the reasons given by the learned Additional Sessions Judge, but Mian Shakirullah Jan, J. took a contrary: view. We regret, however, to find that in coming to this conclusion Shakirullah Jan, had, in several respects, misread the evidence. In the first place he was wrong in thinking that Khattak, J. had rejected the dying declaration "on the ground that it was not recorded in the form of questions and answers as made by the deceased". What Abdul Ghani Khattak, J. had actually stated was that: "It is true that the rejection of the dying declaration on this score alone does not appear in accord with the general principle, however, the dying declaration can be relied upon only if it is found true and genuine," and then concluded that "the dying declaration itself is not free from doubt, because the author of the dying declaration, the scribe, and the‑witnesses thereto are at variance as to the mode of its having been recorded and as such I cannot be sure that the dying declaration 'is true if it is assumed to be genuine".
was also wrong in taking the view that "Gulfaraz I. H. C. (P. W. 8), the scribe of the dying declara tion, who is a responsible Government servant and who had no enmity with the respondents, deposed that the dying declaration was made in‑ a narrative form". Gulfaraz was, of course, not the scribe of the dying. declaration. It was recorded by Muhammad Yar, A. S. I. (P. W. 11). Furthermore, Gulfaraz had actually belied the statement of the A. S. I. that he had recorded it in the narrative form. The only person who had supported the A. S. I. on this point was Muhammad Nur (P. W. 5) who had stated that "the deceased raised himself and sat and replied in affirmative, and then narrated all. the details right from the mosque up to the time when he was shot. The A. S. I. had not interrupted him with any question".' All others, including Muhammad Nawaz (P. W. 4) had stated that the dying declaration of the deceased was recorded by the A. S. I. in the form of questions and answers.
Mian Shakirullah Jan, J. is also, in our opinion, wrong in taking view that the evidence of the Arms‑Expert had corrobo rated the ocular testimony because the bullet (P. 5) recovered from the dead body of the deceased was found to have been fired from the rifle produced by the appellant. This was a clear misreading of his evidence and it is as a result of this that he had come to the conclusion that there was "strong corrobora tion" of both the ocular testimony and the dying declaration.
The Arms‑Expert, as already pointed out, had said no such thing. He had merely stated that it was "only possibly" that the bullet recovered might have been fired from the gun sent to him for examination. This was by no means a definite opinion at all.
We are also unable to agree with Shakirullah Jan, J. that it was a matter of no consequence as to whether the deceased was held by Mir Baz from behind or by the hand. This was, in our opinion, a question of vital importance, for, upon it depended the‑credibility of the eye‑witnesses. If the deceased had been held from behind and turned around then the person who would have received the bullet fired by the appellant would have been his own brother Mir Baz and not the deceased. Even if the deceased was not turned around, it would have been extremely rash on the part of the appellant to fire at the deceased, for, in that position there‑would have been every danger of his injuring his own brother Mir Baz as well.
It appears to us that for this reason the story of turning the deceased around had been deliberately introduced subsequently so as to make the ocular testimony consistent with the medical evidence which had disclosed that the shot had entered from the left and travelled towards the right. This, as pointed out by the learned Additional Sessions Judge, could not have happened if the deceased was proceeding to the West, towards his own house, and the appellant was perched on the manger by the wall towards the North. In such a position the shot would have entered from the right and travelled towards the left.
This, of course, let Khattak, J. to surmise that the shot must have been fired at the deceased from the aperture or opening in the passage leading to the baithak of the appellant's father on the other side of the lane. But this theory does not also fit in with the medical evidence which shows that the shot must have been fired from above, for the direction of the path of the bullet is transversely from the upper part of the left arm to the back of the right chest wall in the ft .intercostal space.
The introduction of the story of turning the deceased round was obviously an embellishment which could not but lead to serious doubt as to the presence of the witnesses. Whether they had, at all, seen the occurrence is made more uncertain by the fact that the place of incident is not visible either from the mosque or from the chowk and it had not been mentioned in the first information report that Muhammad Nawaz (P. W. 4);' was following the deceased as he apprehended trouble. If Muhammad Nawaz was not following the deceased, he obviously could not have seen who shot him. Similarly Muhammad Nur's evidence also does not inspire any confidence, for, be has contradicted himself on several material particulars. He first stated that the place of occurrence was visible from his courtyard. Then resiled ' from this position and said that he had actually been attracted by the abuse and challenge thrown out by Mir Baz. It was only then that he got up from his cot and came towards the opening, leading to the lane to see what was happening. He was also made to retract from what he had stated before the police, namely; that he saw Mir Baz holding the deceased from behind, because, in this position the deceased would obviously not have been shot at. Hence he introduced the story of Mir Baz holding the deceased by the hand as if dragging him. Shakirullah Jan, J. too felt this difficulty but tried to get over, it by saying that the deceased must have been moving about in order to extricate himself from the grip' of Mir Baz and in this process may have presented his left side towards the shooter at the point of time the shot was fired. This, however, is pure surmise, for, there is no evidence that the deceased offered any kind of resistance.
had a third theory, namely, that Mir Baz having come to know of what had happened between the deceased and his father, took it into his head without any pre‑concert with the appellant, to teach the deceased a lesson and, hence, finding him returning alone towards his house, he suddenly emerged from his baithak and grappled with the deceased. But at this time, the appellant Gut Nawaz who was, on his own, nursing a grievance against the deceased, finding his brother grappling with the deceased, took this opportunity of firing a shot at him from the cover of the wall. It was, of course, no body's case that it was a chance meeting in the lane at which the two accused persons, acting independently, sought to take revenge from the deceased.
But having given our anxious consideration to the evidence in this case, we cannot help agreeing with Khattak; J. that Mir Baz had been falsely implicated, although be, was not at all involved in the incident. So far as the appellant Gul Nawaz is concerned, his participation has also, in our opinion, not been established beyond any reasonable doubt, for, we are inclined to agree with the learned. Additional Sessions Judge that the. occurrence had not been witnessed by any one even though it occurred in 'broad daylight and soon after the quarrel in the mosque between the deceased and the appellant's father.'
We are unable to place any reliance on the dying declara tion in this case. This dying declaration was recorded after the deceased, if he was in. his senses, had had an opportunity to speak to his supporters who were collected there, even at the time when the police arrived, as has been admitted by Muhammad Nur, Hashmatullah and Gulfaraz, P. Ws. 5, 7 and 8, respectively. It is also not understood why the A. S. I., who recorded the dying declaration, could not find other independent persons to witness its recording when, it is admitted, that the Chairman, of the local Union Council had been sent for and had actually come, as stated by the A. S. I., after he had recorded the dying declaration.
Hashmatullah (P. W. 7) has been described by Muhammad Nur as a person who always goes with the police but Shakirullah Jan, J. thought that he had made concessions in favour of the accused. Such marginal witnesses to a dying declaration cannot inspire any confidence in its correctness, particularly, when even they contradict the scribe thereof as to the manner of its recording.
In the circumstances we are clearly of the opinion that Faizullah Khan and Shakirullah Jan; JJ., were wrong in dis regarding the criticisms made by the learned Additional Sessions Judge; of the prosecution evidence adduced in this case. It should have been remembered that the appreciation of evidence made by the trial Court must always be given due weight and importance, for, that Court has the advantage of not only hearing the evidence but also observing the demeanour of the witnesses deposing before it. Its judgment of the credibility of a witness is not to be lightly discarded, particularly, where such judgment is supported by cogent and substantial reasons.
It is no doubt true that in an appeal against acquittal the whole case is open before the High Court in the same manner as in an appeal from x conviction and in both cases the High Court must make up its own mind as to the guilt or innocence of the accused person but there is this difference that the Court of appeal, must in a case in which an acquittal is sought to be set aside; remember that the presumption of innocence of the accused person has, if anything, been made stronger by the fact of the acquittal by the trial Court and this presumption is not to be lightly rebutted.
The prosecution evidence, adduced in this case was full of so many patent inconsistencies and contradictions that it is difficult to appreciate as to how two of the learned Judges in the High Court could have been persuaded in accepting that evidence. The evidence, as we have already indicated, was by no means such as could be held to have established the guilt of even the present appellant, Gul Nawaz, beyond any reasonable doubt. Although, as pointed out by Khattak, J., there is strong suspicion of his having perpetrated the crime, yet to convict upon this suspicion alone, would be tantamount to violating the principles of safe dispensation of criminal justice adhered to by our Courts.
For these reasons, we allow this appeal, set aside the convic tion of the appellant and. acquit him of the charge under section 302, P: P. C. He should be set at liberty forthwith if not required in any other case:
Appeal accepted.
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