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. 3 of 1967, heard on 20th March 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 10th May 1966, in Criminal Appeal No. 320 of 1965/Murder Reference No. 119 of 1965).
Ss. 87 & 88--- Absconding of accused-Proclamation under Ss. 87 & 88---Nothing in sections debars an A. S. I. of Police to move application for issue of proclamation-Application drafted by A. S. I. and duly endorsed by Prosecuting Deputy Superintendent of Police-Held, not illegal.
S. 512 and Evidence Act (I of 1872), S. 33-Absconding accused, arrest and trial of--Deposition of prosecution witness recorded by committing Magistrate-Admissible in subsequent trial of absconding accused----- Two previous depositions of witness (one made before committing Magistrate and another in trial Court)-Any one of two such statements admissible and can be relied upon.
In maintaining conviction of an absconding accused who had subsequently been arrested and tried for the offence of murder, the deposition of a prosecution witness before the committing Magistrate was relied upon: In appeal before the Supreme Court it was urged that admission under section 33 of the Evidence Act, 1872 of the statement of the prosecution witness made before the committing Magistrate to the exclusion of his more detailed statement made at the trial before the Sessions Court was illegal. The Supreme Court held that there was no legal bar to the admissibility of the deposition given before the committing Court and observed:
"Section 33 of the Evidence Act merely makes the evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence. There was no legal bar, therefore, to the admissibility of the deposition given before a Committing Court in a subse quent trial, because, that was evidence recorded by a Magistrate competent to record the same. There is nothing in the section itself to show that where two previous depositions are available, which one should be brought into evidence. It might have been better to bring in the more detailed statement given in the Sessions Court but we are unable to say that the Committing Court statement of the witness was inadmissible in law. If the appellant thought that the statement of the witness given in the Sessions Court should have been brought in under section 33 of the Evidence Act as it would have been more helpful to him, he could also have asked for the same to be brought in under the said section."
Ss. 342 & 540 -----Accused producing birth certificate in course of his examination under S. 342 in support of his plea that he was not the same person who had been accused in case-Court, held, competent under S. 540 to summon any person as witness for rebutting evidence (finger print expert examined after prosecution had closed its case).
S. 174----Inquest report---Not incumbent upon police officer to give names of witnesses in inquest report.
S. 302---Accused absconding for 10 years---Mere fact that long period had thus elapsed, no mitigating circumstance-Sentence of death upheld by Supreme Court.
Mahmood Ali Qasuri, Senior Advocate Supreme Court (Rafiq Ahmad Sheikh, Advocate Supreme Court with him on record (absent) instructed by Siddiq & Company, Attorneys for Appellant.
Raja Said Akbar, Advocate-General West Pakistan (Saeedur Rahman Khan, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.
Dates of hearing: 26th October 1967, 18th, 19th and 20th March 1968.
This appeal by special leave is directed against the judgment of a Division Bench of the High Court of West Pakistan, Lahore, upholding the conviction of the appellant, under sections 302/149 and 148 of the Pakistan Penal Code and confirming the sentence of death imposed upon him by the learned Sessions Judge, Gujranwala.
The appellant was charged with four other persons for having killed two persons and injured several others with gun-shots on the 23rd April 1955, at about 8-30 p.m. outside Nishat Cinema, Gujranwala. The other four persons were tried and convicted for the same. Their convictions were upheld by the High Court and a petition for special leave to appeal therefrom was dismissed by the then Federal Court in limine.
The appellant who was then absconding, was proceeded against under sections 87 and 88 of the Code of Criminal Procedure and after he was proclaimed an absconder, a challan was put in against him under section 512 of the Criminal Procedure Code. He remained absconding till the 21st April 1964, when he was ultimately arrested, brought to trial and committed to the Court of Sessions on the 30th December 1964. The latter Court found him guilty under sections 302/ 149 and 148, P. P. C. and sentenced him to death on the first count and to three years' rigorous imprisonment on the second count. The High Court have upheld his convictions and sentences but special leave was granted by this Court on the 6th October 1966, as it was felt that the Courts below have been largely influenced by the fact that the convictions of his co-accused had been upheld right up to the Federal Court. The evidence, it was therefore felt, had not been examined as critically as it should have been. Moreover, since some witnesses, who deposed at the earlier trial, were not available for examination at the appellant's trial and the trial Court had instead of bringing on the record their evidence at the previous trial, transferred only the short statements they made in the Committing Court, it was thought that the validity of such a course also needed examination. The main witnesses examined at the second trial were again persons who had only been tendered for cross-examination at the first trial: In these circumstances it was considered necessary by this Court to re-examine the evidence in order to ensure "that the processes of justice were fully carried through".
The appellant, who is a notorious Pahalwan of Gujranwala City, was alleged to be the leader of a rival faction opposed by the deceased and his party. There had been a long history, of clashes between the two rival groups over a number of years. Thus, as many as 12 or 13 years ago a fight had taken place between the son of the deceased on the one hand and the appellant and his brothers on the other. An F. I. R. was lodged and a case was started over this incident. Again some 15 years ago the deceased and the appellant had begun to support two rival parties of Gujjars and some 10 years ago a fight took place between the son of the deceased and one Mahaja Gujjar, belonging to the party supported by the appellant. In this people from both the contesting parties were injured, and cross-cases were started. The appellant had thereupon promised Mahaja Gujjar to take revenge for this. 'Thereafter some six months later the appellant and the deceased's son again fought with each other over a dispute as to whose dog was the winner in a dog fight. Both of them were arrested under section 107/151, Cr. P. C. and cases were registered against them. They were thus bitterly opposed to each other and the last of such clashes actually took place some 20 or 25 days before the occurrence resulting in the death of Jowaya. In respect of this last incident also both sides were arrayed in security proceedings.
It is alleged that it is in this background of hostilities that on the 23rd April 1955, at about 8-30 p.m., the appellant and his four convicted companions came along in a tonga, driven by one Allah Ditta and stopped near the railway level crossing, close to the Nishat Cinema, in front of which the deceased Allah Jowaya was being messaged by Ali Muhammad Malshia. The appellant was armed with a gun and his companions were armed with hatchets, sword and a dang. They all got down from the tonga and after advancing a little, fired at the deceased Jowaya. By this shot not only the deceased but the Malshia and two or three other by-standers who had no connection with the parties of either the deceased or the appellant were also injured. Jowaya and Ali Muhammad were so severely injured that they fell to the ground. Thereupon the appellant and his companions came up to them and the appellant fired a second shot at Jowaya on his back while the latter was trying to get up. After receiving the second shot which was fired by almost placing the barrel of the gun on his back, Jowaya again collapsed and the companions of the appellant belaboured him with their weapons. After this the appellant and his companions decamped on the same tonga.
The Malshia was also severely injured but the other persons only received simple pellets injuries. Of these one Miru had taken refuge near the Nishat Cinema wall but the others had run away. After the miscreants departed, Miru himself went to get first aid from a Barber's shop but finding no one at the shop he again came back to the spot.
In the meantime, Muhammad Latif, a bearer of Taj Mahal Hotel, situated opposite to the Nishat Cinema, who was then busy placing utensils on the upper storey of the hotel for use at Sahri time---this was the day on which the Ramzan moon had been sighted-heard two reports which at the time he thought to be reports of crackers exploded in celebration of the appearance of the Ramzan moon. But on hearing sounds of Hai, Hai, Margai, he immediately came down and saw Jowaya Pehalwan lying dead in front of the Nishat Cinema and another person lying injured near him. Seeing this, he rushed to the Police Station, Gujranwala City, which was only two furlongs away, and lodged a First Information Report at 8-45 p.m. In this no accused was named and the only information conveyed was that Allah Jowaya had been killed and another person injured outside the Nishat Cinema in Sialkoti Chowk.
This was recorded by Sub-Inspector Abdul Ghani who immediately proceeded to the spot. There he found Allah Jowaya lying dead and Ali Muhammad Malshia in injured condition. The injury report of the Malshia was prepared and he was sent to the hospital for medical aid. Then the inquest report of Allah Jowaya was prepared and his dead body was sent to the mortuary. By this time Viru had come back to the place of incident from the barber's shop. Seeing the police officer he informed him that he too was injured. His injury statement was accordingly prepared and his statement was recorded. Blood stained earth was seized from outside Nishat Cinema as also two empty 12 bore cartridge cases of which one was blood-stained. Apart from these two bullet shell leads, of which again one was blood-stained, one was of a 12 bore cartridge stained with blood and seven live cartridges of 303, one missed cartridge and one cartridge shell without bullet, all tied up in a muslin bag were also found lying near the dead body of Jowaya. These were also taken into possession.
When the Police Officer arrived at the place he found 5 to 7 hundred persons collected at a distance of 10 or 12 karams from the injured persons and a nephew of Ali. Muhammad called Sadiq or Siddique sitting by his side. On seeing him the mob surrounded him. He did not, therefore, think it wise to make any enquiries from any one at that time but engaged himself in preparing the reports and arranging for the despatch of the dead body to the mortuary and the injured to the hospital. He had managed to do all this at about 10-00 p.m. and as by this time the relatives of Allah Jowaya and the injured Miru had also arrived there, he started enquiring if any one had seen the occurrence. Upon this Miru came forward and gave his state ment. This was duly recorded. After that Shabbir Hussain and lmdad Hussain who were also injured, appeared and their statements were also recorded. Another person called Sadiq, (P. W. l3), who was driving a tonga, also came there and stated that he had seen the incident. His statement too was recorded. According to him he was at the relevant time going-towards the Nishat Cinema from the Railway Station, Gujranwala when he saw a tonga coming from behind. It overtook his tonga and halted when it reached the railway crossing gate. The appellant, who was armed with a gun and his four other companions who were also variously armed with hatchets, Sota and a sword, got down from the tonga and then, moving forward, the appellant fired his gun. The shot struck two persons outside the Nishat Cinema. After they fell down, the appellant ran and practically rode' upon the deceased Jowaya. In that position he fired his gun for the second time and then his other companions beat Jowaya with their respective weapons. Afterwards they ran away in the same tonga towards the Sialkot Road after passing the railway level crossing. Subsequently he learnt that the other injured person was a Malshia called Ali Muhammad who was not known to him from before. At this stage he left the place as his tonga was engaged by some passengers. He returned, however, soon afterwards when he was stopped by the Police Officer enquiring from persons if they had seen the occurrence. He told him that he had done so and could name the culprits whom he knew from before. His statement was recorded sometime after 11 P.M.
This witness, it appears, was also examined at the previous trial.
Two other persons, namely, Ayub Khan (P. W. 14) and Muhammad Rafiq (P. W. 15) also claimed to have seen the incident and gave their statements. They had come together to see a show at the Cinema and had come out during the interval period to urinate when they saw the tonga with 5 passengers coming from near the railway gate. The tonga took its stand near the bridge of the stagnant water and its passengers descended from the tonga. One of them was armed with a gun and others were armed with hatchets, sota and sword. They took their stand near the telephone and electric poles close to the bridge and from there the appellant fired his gun towards the Cinema side. The fire hit Allah Jowaya and the Malshia and another person. But when Jowaya was attempting to get up the appellant rushed up, placed the barrel of his gun on his back and fired a second shot. The rest of the culprits then inflicted blows upon him with their respective weapons and ran away on the same tonga towards the Sialkot Road side. The witnesses then went away from there to give information to the father-in-law of the deceased Allah Jowaya but finding that the latter had already left his house on coming to know of the occurrence, came back to the place and finding the Police Officer making enquiries there they revealed what they had seen.
The medical evidence shows that the deceased Allah Jowaya had as many as 15 injuries. The first of these consisted of 11 clongated grazed wounds on the left parietal and teruporal bones. The direction of these wounds was from behind forwards indicating grazing by pellets. The biggest of these wounds was 2" x " x superficial and the smallest was " x ". Then there were 12 round penetrating wounds on the left occipital 1/8" x 1/8" x brain deep. The third was a penetrating wound on the antero lateral aspect of the left forearm, upper third, with blackened margins. Then there was another penetrating wound on the medial side of the left forearm in the upper third portion thereof. This was the exit wound of the previous injury. The last gun-shot wound was a penetrating wound with irregular margins on the right back just lateral to the spine and medial to the medial angle of the left scapula. It was 1" x 1" x right chest cavity deep. Its margins were blackened but there was no corresponding wound of exit. Apart from this the deceased had 6 cut wounds, 6 contusions and two abrasions. These wounds clearly indicated that he had been attacked by more than one kind of weapon.
Ali Muhammad Malshia had a number of gun-shot injuries covering his face, forehead, neck and shoulders. It seems that the shot had hit him full on the face, nose and chin, spreading from the forehead to his shoulders. His skull was pierced at 4 places and pellets had even entered in his brain. But there was no blackening round the margin of any one of these injuries. . The other injured persons too had a number of gun-shot injuries but they were mostly of a simple nature.
The prosecution examined in support of its case Sadiq, the tonga-driver (P. W. 13), Ayub Khan (P. W. 14) and his compa nion, Muhammad Rafiq (P. W. 15), as eye-witnesses of the occurrence and mainly relying upon their ocular testimony, the Courts below have accepted that the participation of the appellant in the incident resulting in the death of Allah Jowaya had been established.
The defence of the appellant in the Committing Court was that he was not present at Gujranwala on the date and time at which the incident took place. He claimed that he was then residing at Sind and in April 1964, when he came to pay a visit to his relatives at Gujranwala, he was falsely arrested. In fact the Ibrahim, who was the main culprit in the case and against whom proceedings were taken under section 512, Cr. P. C. was an entirely different person. According to the appellant his father's name was Rahim Bakhsh and not Allah Ditta and he was by caste Bhatti and not Kashmiri. In the Sessions Court, however, he admitted that it was correct that Mahaja (P. W. 19), the son of the deceased, had got a case registered against his relatives under section 307/326, P. P. C. about 2 or 2 years before the incident resulting in the death of Jowaya but he denied that he had ever been bound down under section 107/151, Cr. P. C. or that he had any grudge against the deceased. He also maintained that he had no enmity against the complainant or the witnesses but they had out of enmity falsely implicated him. In his defence he also produced a certified copy of a birth entry (Exh. D. E.) which was put in as a part of his statement under section 342, Cr. P. C. No other defence evidence was, however, called. The Courts below, as already stated, believed the prosecution evidence and held that the case against the appellant had been fully established.
The learned counsel appearing in support of this appeal, however, contends that the ocular testimony was wholly unreli able, as the so-called eye-witnesses were not only interested persons but had also deliberately perjured themselves. The whole case, it is argued, is a false case, the witnesses are liars who had been procured later as they belonged to the party of the deceased. Their evidence, it is further contended, has been materially contradicted by the medical evidence and their testimony should not, in any event, be accepted unless fully corroborated by other independent evidence.
Learned counsel also contends that the trial has been vitiated by a number of illegalities committed in the course of proceedings.
We propose, therefore, to deal with the legal objections before dealing with the case on merits. The first legal objection taken is that the appellant was not properly declared an absconder as the A: S. I. was not competent to initiate pro ceedings under sections 87 and 88 of the Criminal Procedure Code. The application for declaring the appellant absconder, it is true, was drafted by Choudhry Ataullah who was at that time an Assistant Sub-Inspector attached to the Gujranwala City Police Station but, it appears from the endorsement,. (Exh. P. AAA/5), that this application was in the first instance put up before the Prosecuting Deputy Superintendent of Police and it was only after the latter had approved it on the 30th April 1955, that it was presented before a 1st Class Magistrate. The latter, on the same day, ordered that a warrant of arrest should issue. It was only .on the 4th May 1955, after taking the evidence, of A. S. 1. Ataullah that he issued the proclamation and warrant of attachment under sections 87 and 88, Cr. P. C. This was in accordance with the procedure prescribed by law and since the P. D. S. P. had authorised the making of the application presented by the A. S. I., the requirements of the rules were also satisfied. There is nothing in section 87 or 88, Cr. P. C., of course, which would indicate that such an application cannot be made by an A. S. I. of Police. We see no substance, therefore, in this objection.
The next objection raised is to the admission under section 33 of the Evidence Act of the statement made by Miru before the Committing Magistrate, leaving out the more detailed statement he gave in the Court of Sessions at the previous trial. Section 33 of the Evidence Act merely makes the evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence. There was no legal bar, therefore, to the admissibility of the deposition given before a Committing Court in a subsequent trial, because, that was evidence recorded by a Magistrate competent to record the same. There is nothing in the section itself to show that where two previous depositions are available, which one should be brought into evidence. It might have been better to bring in the more detailed statement given in the Session Court but we are unable to say that the Committing Court statement of the witness was inadmissible in law. If the appellant thought that the statement of the witness given in the Sessions Court should have been brought in under section 33 of the Evidence Act as it would have been more helpful to him, he could also have asked for the same to be brought in under the said section.
The learned counsel then urges that the taking of evidence of the Finger Print Expert after the prosecution had closed its case and the accused had been examined under section 342, Cr. P. C. was illegal. What had happened in this case was that c the appellant had, in the course of his examination under section 342, Cr. P. C., produced a certified copy of a birth entry (Exh. D. E.). It was then that the prosecution sought for an opportunity to call rebutting evidence. The Court held that it had power to allow the prosecution to do so under section 292, Cr. P. C. The defence opposed this on this ground that under section 289 of the Criminal Procedure Code the entry front the birth register had not been proved after the accused had accused upon his defence. Whatever may be the position under section 292, Cr. P. C., it seems to us that there was ample power in the Court itself wider section 540, Cr. P C., to summon any person as a witness at any stage of the trial even though he had not been summoned before. We are, therefore, not in a position to say that what the Court had done was entirely illegal. All that was necessary was that after this evidence was taken the accused should have been given a chalice of explaining it by further examination under section 342, Cr. P. C. This too way done in the present ease, for, on the 12th March 1965, the Sessions Judge did after the evidence of Finger Print Expert, (P. W. 26) had been taken also record the statement of the accused in regard to the evidence brought on tile record by the examination of the Expert. The further opportunity it) explain the evidence was therefore, given and no illegality was committed no; was any prejudice caused thereby to the accused.
Lastly it is contended that there was no proper enquiry as to whether tile appellant was the accused who had been declared an absconder. The appellant's case was that he was not the same person as his father's name was Rahim Bakhsh and not Allah Ditta and he was by caste a Bhatti and Dot a Kashmiri, as stated in the proclamation, nor was he resident of the place mentioned in the proclamation. This was clearly a false plea, because, all tile witnesses had deposed to the effect that he was the same Ibrahim alias Khalifa who had participated in the occurrence leading to the murder of Jowaya Pehalwan. If any doubt was left as to this, it was cleared up by the evidence of the Finger Print Expert who had after comparing the appellant's thumb -impression, taken in Court, with his thumb-impression on a First Information Report (Exh. P. G. 1) admittedly lodged by him against Mahaja (P. W. 19), on the 26th December 1952. In this first Information Report (Exh. P. G.1) also his father's name was given as Allah Ditta and his caste as Kashmiri and he was described as a resident of Gujranwala.
An effort made to show that the thumb-impression oft even this First Information Report was of some body else as the appellant was unconscious at the time also failed, because, in the certificate granted by the doctor at the hospital where the appel lant was taken in an injured condition the thumb-impression of the appellant had been taken and this too had been compared by the handwriting expert with the specimen thumb-impression. The residential address and parentage of the appellant were also given therein and this could not have been obtained except from tile appellant himself who must have been conscious to furnish these particulars to the doctor.
None of these objections are, therefore, in our view, tenable. There is no doubt also that the appellant is the person who had been proclaimed an absconder.
Coming now to the merits of the case, the learned counsel for the appellant has vehemently attacked the veracity of the three eye-witnesses in this case. His contention is that none of these witnesses were present at the time of the incident and had been procured subsequently. According to the learned counsel, they had been completely belied by the medical evidence, for, the medical evidence established that at least three shots must have been fired from three different kinds of weapons. The doctor had, it is said, actually found a total number of 78 pellets injuries a number of which were of different sizes, It was impossible, therefore, according to the learned counsel, to accept that such a large number of injuries could have been caused to as many as 5 persons by one shot, as suggested by the prosecution witnesses. The second shot, according to the witnesses, it is pointed out, had been caused by almost placing the barrel of the gun on the body of the victim. This should not, therefore, have spread or scattered as it entered the body en masse. .
It is true that some of the penetrating wounds found on the injured Jowaya are 1/8" x 1/8' while others are " x " and the injury on the spine is 1' x 1". But so far as this last injury is concerned its size cannot furnish any correct indication of either the size or the number of the cartridge used, for, this was fired by placing the barrel on the body and the entire shot must have entered into the body en masse causing a very large gaping kind of wound. The slight difference between the sizes of the other pellet wounds on the soft parts of the body and those on bony parts may well have been due to the fact that the wounds on the soft or fleshy parts appeared to be larger in size by reason of the fact that the shot was fired from a close range. The injury on the left forearm appeared to have left blackened margins on the wound and this could only have been possible if the shot was fired from a close range. The difference in the sizes of the wounds is not by itself sufficient to discredit the witnesses. But even assuming that three shots were fired and not two as stated by the witnesses that too would not be sufficient to discredit the witnesses altogether. It is quite possible that in the commotion that must have ensued as a result of the first two shots being fired the witnesses did not notice the third shot.
The learned counsel has also tried to demolish the evidence of these witnesses by pointing out that Muhammad Latif (P. W. 16), the person who gave the First Information Report, had also only mentioned two shots. Muhammad Latif, of course, did not himself see the shots being fired. He only heard the reports of what he thought at first to be explosions of crackers in celebration of the appearance of the Ramzan moon. It is quite possible that neither he nor the other witnesses heard the report of the shot fired by placing the barrel on the back of the deceased Jowaya. In such a position the shot was not likely to give out any very loud report. The report could only have been a muffled one. Apart from this there must have been a great deal of confusion at the time as people must have scattered hither and thither to avoid being hit by stray pellets. It cannot, therefore, be said that any such serious discrepancy has been found out between the ocular testimony and the medical evidence as to discredit the ocular testimony altogether.
Learned counsel next urges that the recoveries also did not support the prosecution version, for, they indicated that apart from two 12 bore empty cartridges, the police also recovered the lead portions of two revolver bullets and a bag containing seven 303 live bullets, one 303 spent bullet and another cartridge. From this the learned counsel concludes that there must have been an exchange of fire front both sides. This, however, does not appear to be correct, for, all these other items were only found lying close to the dead body of Allah Jowaya and some of them were tied in a cloth bag. It is quite possible that either some one of the accused persons or the deceased himself was carrying these but this does not establish that they were utilised at the place. There is no evidence to the effect that any one else, apart from the appellant, was armed with a gun or had used such a weapon. The conclusion of the learned counsel is, based upon pure surmise. If there was any one from the accused side or from among the also have received revolver or rifle bullet however, no evidence to this effect.
The mere fact that as many as 5 persons received pellet injuries, is not at all surprising, for, the place of incident is a busy place outside a cinema house and we have it in the evidence that the incident took place at just about the interval time of the cinema show.. Two of these witnesses had actually come out of the cinema and were going to urinate behind the Cinema when the shooting took place. It is possible, therefore, that the pellets spread and injured even innocent by-standers.
So far as the witness Ayub Khan is concerned, he was an ex -Police Constable and there was nothing to show that lie was in any way, connected with the deceased or inimical to the appellant. The mere fact that he is an ex-Police Constable does not necessarily mean that lie is also a stock witness. In fact, in cross-examination, he actually refuted this suggestion and stated that he did not even know the Investigation Officer before this incident. He was, therefore, a completely independent witness and we see no reason to doubt his veracity or to reject his evidence.
So far as Muhammad Rafiq is concerned, some effort was made to show that he was connected with the deceased's side. But all that could be elicited from him was that he had, in 1952, given evidence as a prosecution witness in a case brought by a son of Allah Jowaya against the appellant. His cross- examination further shows that after the incident he had been implicated by the accused's side in several other cases. The witness's explanation was that this was done because he had given evidence in the previous trial also against the' accused persons. This does not appear to be impossible. We see no reason there fore, to reject his evidence either. He had no particular reason to falsely implicate the appellant.
As for Sadiq (P. W. 13), the learned counsel has, of course, suggested that he-is a deliberate liar for, he was at the relevant time employed as a Municipal Sweeper and had no licence at all for either driving or keeping a tongs. He has been described as a henchman of the deceased, for, he had also given evidence in an earlier case started against Yaqub and Makhna for having thrown acid on Mst. Fatima, the wife's sister of the deceased Allah Jowaya. It is true that he has frankly admitted that he had no driving licence and was keeping an unlicensed tongs at the time when he was employed as a Municipal Sweeper but that does not mean that he could not have driven an unlicensed tonga during the night to supplement his earnings. There is nothing inherently improbable in this. It is significant that, in the searching cross-examination to which he was subjected no suggestion of any direct connection between him and the deceased could be made. All that was suggested was that the deceased himself belonged to the party of the President of the Municipal Committee who had employed the witness as a Sweeper. Even this witness was after this incident implicated along with a brother of the deceased in a case under section 392, P. P. C. The witness suggested that this was done by the accused party in order to prevent him from giving evidence. We are not in a position therefore, to agree that this witness is so interested in the deceased that his evidence cannot be accepted without corroboration in material particulars. But even if such corroboration was necessary, he had been amply corroborated by Ayub Khan and. Muhammad Rafique of whom Ayub Khan was a completely disinterested witness.
Learned counsel next contends that in any event this witness could not have seen the incident, because, from the position at which he was with his tonga his vision was obstructed by two kiosks situated between the petrol pump and the place of the incident. It may be that from that particular point his view might have been partially obstructed but the inspection note of the learned Sessions Judge indicates that the place where the deceased Jowaya lay was visible from where his Conga was standing. Besides this if his evidence is accepted that the tonga on which the appellant was travelling, had overtaken his tonga soon after passing the railway line and gone ahead, then he certainly had enough opportunity to see the passengers of that tonga and if he also saw the appellant getting down armed with a gun and then heard reports of shots being fired and saw Jowaya and another person being hit, then the inference would be irresistible that it was the appellant who had fired those shots which hit Jowaya and the Malshia.
The presence of the ocular witnesses is also challenged on the ground that the Police Officer who prepared the inquest report of Jowaya did not mention therein the names of any one of the eye-witnesses. It is, of course, not incumbent upon the Police Office under section 174, Cr. P. C. to give the names of the witnesses in. the inquest report. But, apart from this; 'we have the explanation of the Police Officer himself that because there was a large crowd milling around him and there was great noise when he arrived at the place, he could not enquire at that time as to whether any body had seen the incident but busied himself in making the inquest report of the deceased and taking other steps and it was only when the dead body had been sent to the morgue and the injured to the hospital that the crowd thinned and he began enquiring from the persons present as to whether any body had seen the incident. As in the First Informa tion Report no names were mentioned, he could only have ascertained the names of the witnesses after enquiring from the persons in the locality and at this time persons did come forward to make statements.
The inquest report of the Malshia was prepared at the hospital by another officer (P. W. 10). The latter was not, however, the investigating officer and it may be that he did not record the name of any witness as the investigation was already being conducted by another officer.
Comment is also made on the ground that the three eye witnesses examined in this case were witnesses who had only been tendered for cross-examination in the previous trial while a number of other witnesses who had been actually examined in the previous trial and were more independent than any one of the witnesses now examined, had been withheld without any explana tion as to why their presence could not be secured. The record shows that the Public Prosecutor gave up four witnesses, namely, Safdar Ali, Sadiq, Allah Ditta and Muhammad Siddiq as having been won over and two other persons, namely, Qamaruzzaman and Ghulam Qadir Constable as being unnecessary. Learned counsel, however, suggests that Safdar Ali and Allah Ditta had actually been examined as eye-witnesses in the Committing Court and since their evidence contradicted the testimony of the eye witnesses now examined, they were given up. If this be so, then there was sufficient justification for the Public Prosecutor to give them up. That was sufficient to lead him to believe that they would not support the prosecution case. He, therefore, properly exercised his discretion in leaving them out.
As for Shabbir Hussain or Imdad Hussain, there is no evidence to show that they were available but had been withheld by the prosecution. We cannot, therefore, draw any adverse inference against the prosecution merely on account of the fact that they were not examined in this case. It has to be remembered that the appellant had been put up for the trial almost 10 years after the occurrence. During this, period he had successfully managed to avoid arrest. Therefore, the difficulties had been created by his own abscondence and he cannot now- blame the prosecution for this. If he thought that anyone of them would nave given evidence in his favour he could have called them as his defence witnesses.
After a careful examination of the entire evidence with the assistance of the learned counsel for the appellant and giving anxious consideration to the arguments advanced by him we have come to the conclusion that the testimony of the eye-witness cannot be rejected altogether. It may he that then are some discrepancies in their evidence but such discrepancies were inevitable after the lapse of such a long time. None of the discrepancies is furthermore, of such a material nature as to discredit their testimony. We are of the view that on the whole they have given true evidence establishing the implication of the appellant in this incident. His abscondence for nearly a period of ten years also weighs heavily against him.
For these reasons we have come to the conclusion that the appellant has been rightly convicted. We, therefore, dismiss his appeal and uphold his convictions.
The next question, however, that arises is as to whether the sentence of death was properly imposed upon him. Learned counsel appearing before us urges that since ten years have now elapsed and all the other co-accused were only sentenced to transportation for life, the same punishment should be given to the appellant. We cannot, however, overlook the fact that the; appellant was the principal accused in the case for, it was he who fired all the fatal shots and so brutally ended the lives of two persons. To give him the lesser sentence now would amount t placing a premium on his abscondence and giving him the benefit thereof. Every person who can successfully abscond for a large number of years will then be in a position to say that h should be given w the lesser sentence merely because such
long time has elapsed. We regret we are unable to adopt any such principle.
We, accordingly, uphold also his sentence.
Appeal dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer