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. 103 of 1966, decided on 29th January 1968.
Prosecution witnesses closely related to deceased and inimical towards accused‑Corroboration of interested witnesses, held, not invariably a rule of universal application‑Witness if otherwise reliable, conviction could sustain on such testimony alone.
Bahaduri and 5 others v. The State P L D 1965 S C 111 rel.
S. 302 recd with S. 325‑ Street fight‑No indication of previous enmity between parties or intention or knowledge of accused to cause death‑‑Held, no circumstances exist to attract S. 302‑‑Conviction altered to one under S.325.
Anwar and another v. The State P L D1965 Lah. 378 rel.
Mohd. Hayat Junejo for Appellants.
Manzoor Hussain for A. A.‑G. for the State.
Date of hearing : 13th December 1967.
Sobdar, aged 25 years, son of Ghulam Kader, Usman, aged 30 years, son of Ghulam Kader, Abdullah, aged 45 years, son of Qader Bux and Din Muhammad, aged 30 years, son of Ali Muhammad are convicted under section 302/30, P. P. C., for the murder of Jaffer, aged 55 years, son of Gulab, by Sessions Judge, Dadu and each one sentenced to transpor tation for life. They were also convicted under section 323/34, P. P. C. and each sentenced to six months' R. I. Both the sentences were ordered to run concurrently. It may be mentioned that Sobdar and Usman accused are brothers and Abdullah accused is their maternal uncle. Din Muhammad accused is also said to be related to them but their exact relationship inter se is not known.
2. The brief facts of the prosecution case as disclosed in the F. I. R. were that at noon tine on 20‑6‑1965, Jaffer deceased and Arbelo P. W. were sitting in their house when they heard a commotion from outside the street. After they came out running, they saw Sobdar and Usman accused giving blows to Lakhmir, and Nabi Jurio P. Ws., with the blurt side of hatchets and pegs. Jaffer deceased and Arbelo P. W. are alleged to have intervened, to save Lakhmir and Nabi Jurio P. Ws., but they were also attacked and as a result suffered injuries at the hands of accused. The scene of occurrence was a street in village Ladho Gadehi, Taluka Khairpur Nathan Shah, District Dadu. Arbelo P. W. is alleged to have lodged report Exh. 21 at the police Station, at late noon on 20‑6‑1965, which, however, was recorded for a non‑cognisable offence. After Jaffer deceased died, as a result of injuries suffered by him, formal F. I. R. Exh. 39 was recorded at 3 p.m. on 21‑6‑1965 at the Police Station by Noon Hussain Head Constable P. W. 10.
3. Dr. Ghulam Qadir Ex. 40, Medical Officer, Khairpur Nathan Shah hospital, who performed post‑mortem examination on the dead body of Jaffer deceased had found on his person the following injuries:
"(1) Lacerated wound, measuring 2 " x 1" x .", on mid of occipital region.
(2) A contusion on front and right parictal region, about right ear measuring 3 " x 1".
Both injuries, according, to him, were caused by blunt weapon such as a lathi, or the back of a hatchet. On internal examination he found the following damages:
(1) Fracture of occipital bone due to external injury No. 1.
(2) Fracture of right temporal bone, right parietal bone and part of right-side frontal bone due to external injury No. 2.
(3) Brain vessels ruptured and clotted blood under scalp.
(4) Stomach contained semi‑solid food."
According to him the deceased had died of shock and heamorrhage as a result of external injuries Nos. 1 and 2. Both these injuries were individually sufficient to cause death in the ordinary course of nature.
4. He also examined Lakhmir and Nabi Jurio P. Ws. on 20‑6‑1965. On they person of Lakhmir P. W. fee found a contu sion, with swelling on the centre of parietal region, measuring 3 x 1. This injury according to him was caused by a blunt weapon like a lathi. On the person of Nabi Jurio P. W, he found a contused wound, 2" x " ", on the centre of parietal region, which according to him was caused by a blunt weapon like a lathi. He also examined Abdullah accused on 21‑6‑1965, and found on his person an abrasion, on the tip of right shoulder region, measuring 1 " x " x ". Another abrasion was found on the back of his right tip‑joint, measuring " x " x ". Accord ing to the Doctor these injuries were caused by a blunt weapon such as a lathi or the blunt side of a hatchet or by a stone.
5. The prosecution relied on the ocular evidence of Lakhmir P. W. 3, Nabi Jurio P. W. 4 (who are brothers), Muhammad P. W. 5, Arbelo P. W. 6 and Haji Ghulam Hussain P. W. 7. Muhammad P. W. 5 is the second cousin of Arbelo P. W. 5, Jaffer deceased was Arbelo's uncle and Baji Ghulam Hussain P. W. 7 was the sister's son of the mother of Jaffer deceased. Lakhmir and Nabi curio P. Ws. are not related to the deceased.
6. Sobdar and Abdullah accused in their statements, made, under section 342, Cr. P. C., in the trial Court as well as in the Court of committing Magistrate stated that as a result of a fight, which had taken place between their children and the children of Jaffer deceased, the latter ire the company of Lakhmir and Nabi Jurio P. Ws., trespassed in Abdullah's house, armed with lathis and hatchets, assaulted him, gave him blows and thereafter in self‑defence he warded off their blows with a lathi, which he had managed to snatch from one of item. A report of this incident was lodged by one Wali Muhammad, on behalf of Abdullah accused, at bephari time on 20‑5‑1965, at Khairpur Nathan Shah Police Station which is Exh. 36 on record. That statement, which was lodged soon after the occurrence runs counter to the statements made by Abdullah and Sobdar accused tinder section 312, Cr. P. C. Wali Muhammad, in the said report had stated that on the day of occurrence:
"I had gone to offer Zuhr' prayers in my village Ladho Gadhi when all of a sudden I heard cries towards the street of ray house. I went running upon the cries and found my brother Abdullah lying fallen in out street and had received blunt‑sided hatchet blows. My sister's son Sobdar was also there who had also received laths blows. Abdullah told me, I and Sobdar were standing in the street when Jaffer son of Khuda Bux Khoso 2. Arbelo son of Shahan Khoso 3. Jurio son of Kaeho 4. Lakhmir son of Kacho Khoso gave me and Sobdar blunt sided hatchet and lathi blows over the affair of boys. Muhammad intervened to subside the quarrel who was also given blows. They then went away'."
7. The F. I. R. in this case, which was recorded on the basis of complaint Exh. 21, made by Arbelo P. W., on 20‑6‑1965, after Jaffer deceased died mentioned that all the accused had inflicted injuries on the person of Jaffer deceased but the medical evidence belied that version, according to which the deceased had only two injuries on his scaly. However, this discrepancy would appear to be immaterial as would be seen after the evidence on record is analysed. In any case the F. I. R. way recorded on the basis of complaint Exh. 21 after Jaffar deceased died. Exh. 21 was apparently recorders under section 55, Cr. P. C. and, therefore, it contained no details. It only mentioned the substance of the offence in line with the requirements of that section.
8. The fact that a fight had taken place between the parties cannot be denied. Sobdar and Abdullah accused in their statements, made under section 342, Cr. P. C., admitted the participation of Jaffer deceased in the fight although according to then, they inflicted no injury on his person when he allegedly transposed in their house in the company of P. Ws. However, flea question for determination is as to who was responsible for causing injuries to Jaffer deceased Nabi Jurio and Lakhmir P. Ws. The version of Abdullah and Sobdar accused, as disclosed in their statements under section 342, Cr. P. C., is not believable. As already pointed out, their version was inconsistent with the report Exh. 36, which was filed by one Wali Muhammad, the brother of Abdullah accused, soon after the occurrence. In that view of the matter, the learned Sessions Judge was justified in disbelieving their version.
9. The, P. Ws. unanimously stated that on the day of occurrence Sobdar, Usman, Abdullah and Din Muhammad accused attacked Lakhmir and Nabi Jurio P. Ws. with killas (pegs, in front of the shop of Muhammad P. W., where they had gone for purchases. Jaffer deceased and Arbelo P. W. carne to the scene with a view to separating the parties but they were also attacked. In the result, Nabi Jurio P. W., Lakhmir P. 4V. and Jaffer deceased received injuries at the hands of accused who then decamped. No motive for the offence, in so far as Jaffer deceased was concerned, was alleged by the prosecution. Even the accused have not alleged any enmity with the deceased. In regard to Lakhmir and Nabi Jurio P. Ws. also no motive was alleged in the complaint Exh. 21, but in their statements in the trial Court as well as in the Court of committing Magistrate they stated that Sobdar accused had blamed Lakhmir P. W. for having cut jokes with his sister, a little earlier than the incident, which according to them had annoyed the accused.
10. The learned counsel for the appellants invited my attention to certain discrepancies which appeared in the evidence of P. Ws. with a view to impressing upon me that they cannot safely be believed. In order to fully appreciate his contention it would be expedient to catalogue these discrepancies and then to deal with them. The F. I. R. stated that all accused had assaulted and caused injuries to Jaffer deceased but according to medical evidence the deceased had suffered only two injuries on his scalp. As already pointed out, the F. I. R. in question was recorded after the death of Jailer deceased, on tire basis of Exh. 21 which itself was initially recorded on a non‑cognizable offence, when Jaffer deceased was still alive. Exh. 21 was recorded under section 55, Cr. P. C. and thus it contained only the substance of the offence without disclosing any details. Therefore, the alleged discrepancy was not only understandable but unexceptional in the circumstances of the case. Another discrepancy, which the learned counsel pointed out was that no blood was recovered from or around the scene of occurrence nor was any blood sent to Serologist for his examination. In that view of the matter, the learned counsel argued, that the scene of occurrence was not what the prosecution alleged but was some other place. This argument is also without force. The deceased had suffered only two injuries on his scalp, one lacerated wound and another a contused wound. These injuries, according to medical opinion, were caused by a blunt weapon such as a lathi or the back of a hatchet. It was not the case of prosecution that any blood was found or recovered from the scene of occurrence. Considering the nature of these injuries, and the fact that they were caused on the scalp with the aid of a blunt weapon, it was not unlikely that they did not bleed profusely so as to have flown on to the ground.
Il. From the evidence of P. Ws. these discrepancies were pointed out by the learned counsel for accused. Lakhmir P. W. 3 had stated at the trial that Haji Ghulam Hussain P. W. 7, was the son of the sister of the deceased's mother but he denied that position at the trial. Similarly he had stated before the committing Magistrate that Din Muhammad accused was married to the sister of one Ali Nawaz who was challaned five years ago for causing injuries to his father but was acquitted however, he denied that position at the trial. The learned counsel attempted to argue, on the basis of these discrepancies, that the witness was inimical towards the accused rind could not be relied upon. The argument has no force. It could not be imagined that first because Ali Nawaz who was married to the sister of Din Muhammad accused, was challaned for causing injuries to the father of the witness, five years ago, he would falsely implicate all the accused in a capital crime. The discrepancies appearing in the evidence of other P. Ws. are more or less of the same character and are of no assistance to the accused.
12. The learned counsel argued that Muhammad, Arbelo and Haji Ghulam Hussain P. Ws. were related to deceased while Lakhmir and Nabi Jurio P. Ws. were admittedly inimical to the accused and, therefore, the evidence of these witnesses could no he relied upon without corroboration. This contention also has no force. An interested witness is a competent witness and the corroboration of his evidence is not a rule of universal 14 application. Reliability of his evidence depends upon the circumstances of each case and its quality. If the witness is found to be reliable, conviction can be sustained on his testimony alone without the necessity of any corroboration. For this conclusion I find support from a reported judgment of the, Supreme Court of Pakistan Bahaduri and 5 others v. The State (P L D 1965 S C 111). At page 113 of the judgment their Lordships were pleased to observe :‑‑
"Now an interested witness is undoubtedly a competent witness under the Evidence Act. The proposition that his testimony should tie corroborated by independent evidence is however not of universal application. The question of his reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable the Court may accept it even without any corrobo ration. Put as a matter of prudence the Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will therefore, be unsafe to base a conviction on his testimony alone."
I am of the view that the principles of this judgment are fully applicable to the facts of the present case. It is true that in this case, out of five P. Ws. three are related to the deceased yet the quality of their evidence has impressed me. They have been unanimous in their version, in regard to the incident, and the involvement of the accused. Nothing was brought out in their cross‑examination so as to cast doubt on their testimony. In fact even the version of Abdullah and Sobdar accused, as given in their statements under section 342, Cr. P. C., go a long way in support of the prosecution case. Admittedly there was no enmity between the parties and therefore, there could be no conceivable reason for these P. Ws. to have involved the accused falsely in a grave crime. Lakhmir and Nabi Jurio P. Ws. are admittedly not related to these P. Ws. nor are they on any friendly terms with them so that it could be said that they had a motive to give false evidence. It is true that they stood on inimical tennis with the accused, but their participation in the fight could not be denied as they suffered injuries. In any case, the other three P. Ws. have corroborated their version which leaves no doubt in my mind that their evidence is trustworthy. Accordingly I am of the view that the P. Ws. were reliable and the quality of their evidence was impressive enough to be accepted without corroboration. In the result the conclusion become inevitable that Nabi Jurio, Lakhmir P. Ws. and Jaffer deceased. were attacked and given injuries in the manner as alleged by the prosecution.
13. The learned Sessions Judge has convicted all accused under section 302/34, P. P. C. for the murder of Jaffer deceased, and under section 323/34, P. P. C., for causing injuries to Lakhmir and Nabi Jurio P. Ws., and has respectively sentenced each one to transportation for life and six months' R. I. However, I failed to find support from the evidence on record to sustain the convictions of all accused under section 302/34, P. P. C. All the P. Ws. were unanimous in their evidence that the death of Jaffer deceased was brought about as a result of injuries inflicted on his scalp by Sobdar and Din Muhammad accused. It is true that in the initial report Exh. 21, it was mentioned that all accused had indicted injuries on the deceased but as already pointed out, that report was recorded under section 55, Cr. P. C. and contained no details. In any case their evidence, both in the committing Court as well as in the trial Court, unmistakably accused Sobdar and Din Muhammad accused for the death of Jaffer deceased and anything stated in Exh. 21, or in their statements made before the Police was simply an exaggeration. I have carefully examined the evidence on record and have cone to the conclusion that there was no justification to hold Usman and Abdullah accused also guilty under section 302/34, P. P. C. It is true that Lakhmir P. W. had stated at the trial that Abdullah accused had instigated his co‑accused not to leave Jaffer deceased but no other P. W. supported him in that regard. Lakhmir P. W. himself did not mention that fact when he was examined in the committing Court. The very fact that the deceased suffered only two injuries on his scalp was enough to persuade me to believe that the P. Ws. had helped themselves with exaggeration. In the first place there was admittedly no enmity between the deceased and accused and, therefore, it was unbelievable that Abdullah accused who according to P. Ws. did not inflict any injury on the deceased, would have urged his co‑accused not to spare Jaffer deceased. On the contrary the P. Ws. were unanimous that the injuries of deceased were caused by Sobdar and Din Muhammad accused alone and, therefore, their evidence, in so far as, it implicated the other accused could safely be ignored. In support of this conclusion reference may be made to a judgment of the Lahore High Court, reported as Emperor v. Muzafar Hussain (A I R 1944 Lah. 97) where their Lordships at page 104 observed:
"The manner in which the learned Sessions Judge dealt with the evidence is not quite satisfactory. Ice was evidently carried away by the fact that some of the statements by the witnesses were not found to be correct or, to be more exact, established. There was a time when this method of treatment was held to he permissible. If a witness was not found to leave told the truth in one or two particulars, the whole of his statement was ignored. As it was not easy to find angles as witnesses, this angle of version underwent a radical change. Now the Courts are required to sift the evidence accept what they find to be true and reject the rest. They have to separate the grain from the chaff. In doing so, they are justified in looking upon a witness with suspicion if he is riot found to be true in sonic material respect. But this does not justify then to throw away the whole of the statement although it is natural that they must examine the rest with greater care."
14. In this view of the matter I am of the view that Sobdar and Din Muhammad accused alone were responsible for causing the death of Jaffer deceased and that Abdullah and Usman accused were not guilty. I also do not agree with the conclusion of the learned Sessions Judge as to the applicability of section 34, P. P. C. in the peculiar circumstances of this case. It is admitted teat there was no enmity between the parties. It is also admitted the Jaffer deceased had gone to the scene of occurrence, with a view to separating the parties and therefore, in the absence of any evidence on record, I am not inclined to hold that just because the deceased received injuries, as a result of which he died, there was necessarily a pre‑consent between the accused. The accused had no motive to inflict injuries on the deceased mach less a motive to kill him. While it is true that common intention can arise at the spur of the moment but in this case there is no evidence on record to justify any such conclusion. I am accordingly of the view that the inclusion of section 34, P. P. C., along with the charge of section 302, P. P. C., was not warranted. The accused were responsible for their individual acts and their consequences.
15. The learned counsel for the accused next argued that admittedly there was no enmity between the parties and therefore, the accused could not be said to have intended to cause or knew that they were likely to cause the death of deceased. In substance, his argument was that the accused could not be charged for an offence under section 302, P. P. C. In support of his argument the learned counsel referred to the medical evidence on record and pointed out that the deceased had suffered only two injuries; one lacerated and another a contused wound which according to him supported his contention. In that view of the matter, according to the learned counsel, if at all the accused were guilty, they would be liable for an offence under section 325, P. P. C. In support of that proposition he relied on a Divisional Bench judgment of this Court, reported as Anwar and another v. The State (P L D 1965 Lah. 378), where in para. 12 their Lordships were pleased to observe:
"The question for determination in this case is whether the appellants intended to cause the death of the deceased. It is apparent from the record that the motive for the murderous assault is inadequate. 'There was only a slight altercation between the deceased and Anwar appellant immediately before the occurrence. Abdul Ghani appellant was not even present at the time of that altercation. It is obvious that Anwar appellant felt offended and went home and brought Abdul Ghani appellant to the spot to teach a lesson to Rafique deceased and his brother Sharif P. W. Each one of them inflicted one injury on the head of the deceased. Unfortunately, the injury inflicted by Abdul Ghani appellant with a baton proved fatal while the blow given by Anwar appellant was simple in nature. Considering the inadequacy of the motive, we are of the opinion that the assailants of the deceased neither intended to cause death nor knew that they were likely to cause death. We are accordingly constrained to hold that appellants at the most intended to cause grievous hurt to the deceased. We, therefore, partly accept the appeal and altar the conviction from section 302/34, P. P. C. to one under section 325/34, P. P. C., a sentence, each of them to seven years R. I. The sentence of death imposed on Abdul Ghani is not confirmed."
16. The facts in this judgment were almost similar to the facts in this case. There also the deceased was given two blows, with a baton on his head, as in this case where the deceased was given two blows on his head with the aid of killas (pegs), one of which proved fatal. I, therefore, respectfully agree with the observations of their Lordships and hold that under circumstances section 302, P. P. C. was not attracted to the facts of this case and that the offence was susceptible only under section 325, P. P. C. I have already come to the conclusion that Usman and Abdullah accused were not guilty of any offence, not was section 34, P. P. C. applicable to the facts of this case in so far as the death of Jaffer deceased was concerned. Accordingly, their convictions and sentences under section 302/34, P. P. C. and section 323/34, P. P. C. are set aside and it is ordered that they shall be released forthwith unless they be required in some other case. The appeal of Sobdar and Din Muhammad accused is partly accepted to this extent that their conviction is altered from sec tion 325, P. P. C. and instead of transportation .for life each one of them is sentenced to seven years' R. I. Mr. Muhammad Hayat Junejo, the learned counsel for the appellants did not argue the appeal, in so far as the conviction of the accused under sec tion 323/34, P. P. C. was concerned. According to him they have already undergone the sentence of six months' R. I. which was awarded to them and therefore, the question of their conviction under section 323/34, P. P. C. was now only academic. Accordingly the same is dismissed. In the result the appeal of Abdullah and Usman accused is allowed but in so far as Sobdar and Din Muhammad accused are concerned, it is dismissed subject to the aforesaid modifications.
Appeal partly allowed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer