Find a Lawyer

Criminal Appeal No. 193 and Confirmation Case No. 43 of 1966, decided on 18th July 1967.

S. 54‑Ballistic Expert-- Laches‑Crime gun sent to Ballistic Expert for opinion‑Prosecu tion neither producing Expert's report in committal proceeding nor in trial Court‑-Prosecution, held, guilty of deliberate laches and gross negligence‑‑Application asking permission of High Court to put report in evidence rejected.

Eye‑witnesses inter‑related and interested in deceased‑Circumstantial evidence neither supporting prosecution case nor convincing‑Material independent corroboration supporting evidence of interested witnesses, held, extremely essential in circumstances.

S. 102‑Burden of proof‑Defence plea that there was conspiracy between Police and prosecution witnesses to involve accused not established‑ Held, burden, nevertheless, rests on prosecution to establish their case.

Muhammad Hayat Junejo for Appellant.

Rustam J. Kaikobad for A. A.‑G. for the State.

Date of hearing : 2nd June 1967.

This judgment will cover the reference made to us by the learned Sessions Judge of Sukkur, for confirmation of the death sentence passed by him on the appellant Muhammad Khan under section 302, P. P. C. and also Muhammad Khan's appeal from Jail through his counsel Mr. Muhammad Hayat Junejo.

2. On the 1st of June 1965, at about Katcheri Majhand time, the deceased Muhammad Yusuf was returning to his village driving his bullock cart. Raiswah was on his way to the village and the bullock cart had to pass through this wah. Khawandbux, the first informant, was at the time returning from the lands of Wahid Bux Kakepoto, of which he was the kamdar. He had gone to his lands early that morning, and was himself on his way back, and at the time of the incident had just reached the Raiswah, when he saw Muhammad Yousif and his bullock cart climbing the opposite bank of the Raiswah, and the appellant armed with a gun step down from one of the banks into the Raiswah. When the deceased Muhammad Yusif and his bullock cart got near Muhammad Khan, he shot at Muhammad Yousif from point blank range. Muhammad Yusif collapsed in his bullock cart, and as one of the bullocks was struck by pellets, both the animals shied and ran away with the cart along the southern bank of the Raiswah. Khawandbux challenged the appellant who shouted out of him that he had killed Muhammad Yusif as a karo. P. W. Bhuri, at the time, was about 50 paces away from the southern bank of the Raiswah, and the prosecution case is that he also witnessed the shooting of Muhammad Yusif by the appellant. Both Bhuri and Khawandbux stood by in fear, whilst the appel lant took to his heels with the gun. The bullock cart, however, with Muhammad Yusif in it, ran for a distance of about 200 paces when it was stopped by Ibrahim son of Shah Muhammad returning from his village. Khawandbux and Bhuri reached the bullock cart, and the three witnesses noticed that by that time Muhammad Yusif had died, and blood was flowing from his injuries. Bhuri, and Khawandbux related the incident as they had seen it to Muhammad Ibrahim, who stated to them that he had also seen the appellant fire his gun at Muhammad Yusif. P. Ws. Bhuri and Ibrahim then drove the cart with the dead body of Muhammad Yusif to his father's house in tie village, and Khawandbux left for the New Foujdari P. S. at Shikarpur, 4 miles from the scene, where he lodged his F. I. R. at about 1‑10 p. m. with S. H. O. Ghulam Mustafa. Accompanied by an A. S. I. and other staff, the S. H. O. then left for the village of Pir Bux Lohar and the house of Rahidino, father of the deceased Muhammad Yusif. Mashirnamas and Inquest reports were then prepared, the dead body was sent through constable Muhammad Razak for post‑mortem examination, and the bullock cart was examined. It was stained with blood. One of the bullocks had gunshot injuries on its body and a mashirnama of this was also prepared. The police party and the mashirs then left for the scene in Raiswah where they noticed blood, and the bloodstained earth was secured. Witnesses Bhuri, Muhammad Ibrahim, Mst. Waderi wife of tie appellant, and Moulabux were examined. Thereafter the Police party started in search of the appellant riding in a jeep. They came upon the appellant walking along the forest path armed with a gun, and secured him. A mashirnama of the securing of the gun and its particulars, was prepared. By that time, it was about 7 p. m. The appellant then led the Police party to the bed of the Ustowah, and pointed an empty cartridge shell lying there. A mashirnama of this was also prepared. On the following day, the gun was sent to the Ballistic Expert. Section 164 statements of Bhuri, Ibrahim and Moulabux were got recorded. Appellant was finally challaned on the 26th of June.

3. The motive for the murder is mentioned in the F. I. R. as the appellant suspecting the deceased Muhammad Yusif of illicit relations with his wife Mst. Waderi.

4. It may be mentioned here that the gun secured from the appellant, according to the prosecution belonged to P. W. Moulabux, residing in the village of Pirbux Lobar, who had gone on the morning of the day of the incident to Shikarpur, in con nection with the sale or purchase of cattle. When he returned home in the afternoon, he found his gun missing from his house, and made inquiries about it and met Bhuri and Ibrahim, who stated to him that the appellant Muhammad Khan had shot dead Muhammad Yousif, and that the appellant had disappeared with the gun. Being suspicious that the appellant had stolen his gun and used it Moulabux went to the New Foujdari P. S. and at about 2 p. m. lodged his F. I. R. in respect of its theft. The gun has been described as a S. B. Breach‑loading gun made in Spain, and although the statement of the investigating officer, Mr. Ghulam Mustafa is that on the 2nd of June it was sent to the Ballistic Expert. The opinion of the Ballistic Expert was neither produced in the committal proceedings, nor in the trial Court, and it was only whilst we were being taken through the R & P of this case on the date of the hearing, that the learned counsel for the State when questioned by one of us as to the result of the examination by the Ballistic Expert, stated that he was unaware if such a report was available or not, and sought for time to ascertain from the authorities whether the gun had in fact been sent to the Expert, and what was the result of the examination. Almost a month thereafter, learned counsel for the State then made an application that the opinion of the Ballistic Expert be allowed to be introduced as additional evidence in the case. They alleged opinion of the expert was given on the 26th of August 1965, almost 11 months before the Investigating Officer gave evidence in the trial Court, and no attempt had been made to produce this opinion in evidence before. We, therefore, for reasons recorded, rejected the application of the learned counsel for the State, as in our view, the prosecution were guilty of deliberate laches and of gross negligence, and as the granting of the application would have amounted to giving a second chance to the prosecution to prove their case.

5. The defence of the appellant in the trial Court was that he was innocent, that he has been falsely implicated, that the allegation of his being armed with a gun belonging to Moulabux with which he shot at Muhammad Yousif was false, as also the allegation that he had suspected the deceased to be illicit with his own wife; Mst. Waderi, contending that the witnesses were all set up against him. He affirmed his innocence in the trial Court, further detailing that of the prosecution witnesses, Khawandbux was the brother of P. W. Moulabux, that Ibrahim had married his widowed mother when he was 11 or 12 years of age, contend ing that all cash, cattle and other articles, which property was being enjoyed by Hashim, that appellant had demanded back this property from Ibrahim, which had displeased Ibrahim, and the appellant had, therefore, resided in a separate house and on account of which Ibrahim had deposed against him. He stated that he had been picked up by the Police from his house, and that Ali Mardan's sister was married to Khawandbux, and that the Investigating Officer had joined with the witnesses as one Ali Gohar, an Advocate, was the brother of Ali Mardan. No defence witnesses were examined.

6. The death of the deceased was undoubtedly the result of the 3 gunshot injuries described by Dr. Hamidullah P. W. 5 (Exh. 18) who performed the post‑mortem examination on the body of the deceased. He has described the injuries as follows :‑

(1) An oval lacerated wound equal to the size of an eight anna piece with margins inverted along with three minute tear ings in its edges on the left back thigh directing inwards and upwards towards the right.

(2) An oval lacerated wound equal to the size of an eight anna piece with three oval lacerated wounds equal to the size of pea with margins inverted on the upper side of it about a quarter inch near the left nipple directing outwards, upwards towards the right, and

(3) Two lacerated wounds equal to the size of big pea with margins inverted on the anterior aspect lower 1/3rd left forearm directing inward and outwards. Injuries 1 and 2 were communicating, and all the injuries appeared to have been caused by a shot from a firearm such as a gun. The internal examina tion revealed a fracture of the 4th and the 5th rib under injury No. 2. The pleura was destroyed under injury No. 2, the left lung was lacerated in its lower end, the heart had been com pletely destroyed and there vas semi‑digested food in the stomach. Injury No. 1 was the wound of entry and injury No. 2 was the wound of exit, and injury No. 1 was sufficient in the ordinary course of nature to cause death which was due to shock and haemorrhage resulting from the gunshot. Two pea size pellets and a wad were recovered from the injuries. The doctor's opinion was that death was instantaneous, that the injuries were about 12 hours old, and that the gun had been fired from a distance of about 3 or 4 inches, from the deceased.

7. The entire prosecution case against the appellant depends on the ocular evidence of the three eye‑witnesses, Khawandbux, P. W. 6, Bhuri, P. W. 7 and Ibrahim, P. W. 8, in addition to the securing of the gun belonging to Moulabux from the possession of the appellant by the Police party as the appellant was walking along the forest path. The details of the arrest of the appellant are given in Exh. 16, which stated that the appellant was arrested in a jungle near the village of Bhura Khan Lobar. Corroboration in this respect is sought from the evidence of Moulabux, P. W. who is the owner of the gun, and who has stated the circumstances in which he found on returning home that the gun had been stolen and lodged a report about it. It has been established in evidence that all these four witnesses, including the 3 eye‑witnesses, are close relations. Khawandbux is the maternal uncle of the deceased, Bhuri is the brother‑in‑law of the deceased, P. W. Muhammad Ibrahim is a cousin of the deceased and a step‑father of the appellant. Moulabux is the brother of Khawandbux. Khawandbux's reason for coming upon the seen at the time of the incident has been detailed in the F. I. R. as being the Kamdar of Wahidbux Kakepoto, whose laid he had gone to supervise. Bhuri's reason for being present at the time is that earlier that day he had gone to Raban the father of the deceased, to recover Rs. 30 from him and as this amount was not paid, Bhuri was met by the deceased, and Bhuri states that he was asked by the deceased to help him load his cart with manure and he did so twice, and thereafter the deceased drove his bullock cart away, and Bhuri washed his hands and face and started for his village on foot, and it was whilst on his way home, that he witnessed the incident of the appellant firing at the deceased, having seen him earlier about 50 paces ahead of him. Now P. W. Bhuri states that he saw P. W. Khawandbux standing on the culvert and that after the appellant had fired at the deceased, he declared that the deceased was a karo. In our opinion, Bhuri is not an eye‑witness to the incident. His reason for having gone to the father of the deceased that day, has not convinced us. In our view he is a chance witness and so are Khawandbux and Ibrahim. The learned Sessions Judge was confronted with Bhuri's reason for meeting the deceased earlier on the day of the incident, and as observed in his Judgment the fact that Bhuri had helped the deceased to load two cartful of manure does not find place in the deposition given by Bhuri in the lower Court, and Bhuri did not see either P. W. Moulabux or Khawandbux in the village when he was thus helping the deceased. It was this witness who met Ibrahim, and Khawandbux pointed out the scene to the Police.

8. The evidence of Ibrahim is in a similar strain. He also saw the appellant walking towards the west with a gun on his shoulder and thereafter proceeded towards the Raiswah where Bhuri was walking about 100 paces ahead of him, and when he reached the scene he heard a gunshot. He says he saw the appel lant firing at the deceased, and in cross‑examination stated that he hail not seen Bhuri before the incident.

9. Learned counsel for the appellant has assailed the pro secution evidence on several grounds, namely, that the three eye witnesses are chance witnesses, their relationship inter se being established, that they were, therefore, interested witnesses and, therefore, independent evidence should have been examined to support their evidence, that independent evidence was available arid was not examined by the prosecution. It was also urged that the evidence of the tapedar Pir Bahawaldin (Exh. 5) read with the sketch prepared about 20 days after the incident, would show on account of the sar bushes round about the scene, namely on the bank of the Raiswah and on the Usto Kario and Kazi Kario that the place from where the gun gas alleged to have been fired, would not be visible from the two points namely, D and E, where, according to the prosecution Bhuri and Khawandbux are alleged to be standing and from where they witnessed the incident.

10. The third circumstance urged is that the medical evidence does not support the prosecution, for according to the doctor who performed the post‑mortem examination between 4‑45 and 7 p. m. on the day of the murder, death must have occurred about 12 hours earlier from the time of the post‑mortem examina tion thus falsifying the prosecution case that the incident had taken place at about Kacheri Manjhand time, and indicating that the murder had taken place in the early hours of the morning, and had not been witnessed, being, therefore, a case of no evidence.

11. It has been brought out from the evidence of the witnesses that there were some haris on the land at the time the incident took place. There are some villages very near the scene, in particular the village of Amirbux. P. W. Ibrahim has stated that on his way to the scene he had called out to Amirbux, and Exh. 12 which is the mashirnama of the scene, has stated that all‑round the Raiswah, there was ploughed land, that at the distance of two furlongs from the scene there were the houses of Moulabux and others, and at a distance of 3 furlongs the shrine of Pir Issa, and the house of Atta Muhammad Fakir, to the north at a distance of two furlongs there were the houses of Muhammad Dana Shahban and other Jats. Khawandbux has stated that at the time it was the ploughing season, that there were 4 or 5 haris working on the lands, and that there were many lands near the scene, and that the village of Jats and Rinds is about 600 to 700 paces from the scene, and that excepting himself and Bhuri, no one was attracted to the scene as a result of the gunshot. It has also been brought out in evidence that Daroghas were posted on the banks, of the canal, but the learned Sessions Judge met this point by stating that assuming that some of the haris and Amirbux had heard the gunshot, they could not have expected that by the firing of a gun a murder had been committed, so that they should run to the spot, and the absence of independent persons, therefore, not rushing to the scene of offence is understandable because nobody thought that a murder was being committed. We regret we are unable to agree with this line of argument, for in the case as established here, the only evidence consists of the testimony of the three eye‑witnesses who are closely related to the deceased and are, therefore, interested witnesses, and in addition are in our view chance witnesses and it was all the more necessary and essential for the prosecution to have examined corroborative: evidence of several of the independent witnesses who must have collected at the scene after the incident. The evidence of the tapedar Pir Baliawaldin is that the bed of the Raiswah is about 5 or 9 feet below the ed of the wah, and that there are sar bushes on the bank of the Raiswah, the Kario Usro and the Kario Kazi, which issue from the Raiswah, and that point B from where the appellant fired his gun was not visible from point D where appel lant Bhuri was standing and point E where Khawandbux witnessed the incident, because large Ak trees and other bushes had grown on the bank. Round about the scene there were lands which had been ploughed. The tapedar visited the scene on the 20th of June about 20 clays after the incident, The existence of sar bushes has been mentioned by the prosecution witnesses, and is the mashir namas prepared at the scene. It cannot, therefore, he said that the sar bushes had sprung up suddenly within the 20 days that had elapsed between the day of the incident and the day of the visit of the tapedar. The learned Sessions Judge observed that since Khawandbux had stated that there were no bushes and trees along the bank and that the place where the deceased had been fired on was visible to him, he was not prepared to accept the statement of the tapedar that the place was not visible, because no suggestion had been made about the existence of the trees and the non‑visibility of the place in cross‑examination of Bhuri and Ibrahim. We do not agree with the learned Sessions Judge, for we feel there is no reason to disbelieve the evidence of tapedar, specially as the existence of these bushes which have been described as large Ak trees and other bushes, is natural in the circumstances, and would impede the view or visibility of the witnesses, specially as the distances the three prosecution, witnesses stated they were at, when they witnessed the incident.

12. The next circumstance is the medical evidence and the opinion of the medical officer as to the possible time of the death of the deceased, namely 12 hours before the post‑mortem. This aspect of the prosecution case was also not accepted by the learned Sessions Judge.

13. There is also the additional evidence, namely the con tradictions in the prosecution evidence as to where the empty cartridge shell was pointed out allegedly by the appellant and from it was picked out. Each one of the prosecution witnesses, besides the 3 eye‑witnesses, are themselves closely related to the three prosecution witnesses. In our view, the manner in which the gun was recovered from the person of the appellant and that of it being secured on the path along the bank sometime after the incident by the Police party and the mashirs, is unconvincing.

14. The final aspect is pith regard to the suspicion of the intimacy of the deceased with the wife of the appellant as mentioned in the F. I. R. by Khawandbux, the defence suggestion to the prosecution witnesses being that P. W. Moulabux, Exh. 24, had suspected the deceased and the appellant of intimacy with his own wife, and that it was on account of this suspicion that Moulabux had quarrelled with Yousif and threatened him.

15. The overall picture of the prosecution case is the evidence of the three eye‑witnesses who in our view are chance witnesses, and whose evidence even though it may not be necessarily false, would be extremely rash to rely upon, specially as they are inter‑related and deeply interested in the deceased. In our view, their evidence is of casual witnesses and in that view of the matter their evidence has to be subjected to a greater scrutiny than the testimony of those who by reason of the circum stances of the case, have a reasonable and probable cause to be present at the time and witness the incident. Prudence, therefore, requires that the evidence of these witnesses should not be accepted without independent corroboration, specially in view of their relationship with the deceased and the complainant's side, and of their natural aversion to the appellant, on which account they are inclined towards the prosecution and for which reason, material independent corroboration in support of their testimony, is extremely essential.

16. For these reasons, we feel that this is a case of no evidence, and that highly suspicious as the case may be against the appellant and even though there may not be circumstances to establish that there was a conspiracy between the witnesses and the police officers to falsely implicate the appellant, the burden nevertheless is on the prosecution of establishing their case against the appellant, and which they have not discharged and on account of which the appellant must be given the benefit of the doubt.

17. We, therefore, allow this appeal, set aside the conviction and decline to confirm the sentence of death imposed on the appellant. The appellant will be set at liberty, if he is not otherwise required.

Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.