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Criminal Appeal No. 8 of 1952, decided on 13th October 1953.
(On appeal from the judgment and order of the Chief Court of Sind in Criminal Appeal No. 24 of 1950 (Confirmation Case No. 55 of 1949), dated the 21st August 1950).
Evidence of foot prints having been traced and identified by itself not sufficient to prove case against accused‑Evidence Act (I of 1872), S. 45.
Declaration referred to in illustration should be substantially contemporaneous with act‑Interval between act and declaration should not be such as to allow of fabrication or to reduce declaration to mere narrative of past.
Delay in filing first information report‑Possibility that delay was deliberate‑Mention of witness's name in first information report no guarantee of truth of his statement.
Criminal appeal‑Supreme Court accepting appeal and acquitting convict‑appellant whether an set aside conviction of another co‑accused who did not appeal (Quaere)‑Supreme Court, in circumstance, recommended to Provincial Government that sentence imposed on non‑appealing convict be fully remitted.
S. H. Kadri, Advocate Federal Court for Appellant.
M. H. Munir, Advocate Federal Court instructed by Zahir Abbas, Attorney for Respondent.
J)ates of hearing : 12th and 13th October 1953.
The appellant Ghulam Nabi Shah was tried along with Shafi Muhammad and Khudadino by the Sessions Judge, Nawabshah, on the charges that they with Bhalerakhio Shah, who was an accused in the case but died during the committal enquiry, entered into a conspiracy to murder Ghulam Muhammad Channar, and that in pursuance of that conspiracy the appellant committed the murder and Khudadino abetted the same by being present at the time of the commission of the offence. The Sessions Judge acquitted all the accused on the charge of conspiracy, con victed the appellant under section 302 and Khudadino under sec tions 302/109 and 114 of the Pakistan Penal Code and sentenced the appellant to death and Khudadino to transportation for life. On appeal the Chief Court of Sind confirmed these convictions and sentences. This is an appeal by the appellant with the special leave of this Court against the judgment of the Sind Chief Court. Khudadino has not appealed.
The case for the prosecution was as follows
There was long standing enmity between the above said Bhalerakhiu, a Sayyad and Ghulam Muhammad Channar extending over 20/25 years on account oh various incidents which need not be mentioned in view of the fact that this enmity was admitted on both sides. At the time of the occurrence the deceased Ghulam Muhammad and his brother Ghulam Rasul lived and owned a shop in the village of Dhabro where the murder took place. Bhalerakhio belonged to the same village and the appellant who was living seven miles away was closely related to him, being both his brother‑in‑law and son‑in‑law. Khudadino and Shafi Muhammad were of the party of Bhalerakhio. On the 27th of April 1948, a little before sunset while the deceased and his brother Ghulam Rasul were at their shop, witness Dost Muhammad came and represented to the deceased that his wife was being detained by her uncle, Wali Muhammad, and that he, the deceased, should prevail upon him to send her back. Ghulam Muhammad, the deceased, agreeing to intervene on behalf of witness Dost Muhammad accompanied him to the house of his wife's uncle Wali Muhammad which is about 373 feet from the shop. After they left the shop witness Akil Charmer came and asked witness Ghulam Rasul as to where the deceased was and, on being told that he had accompanied Dost Muhammad, Akil followed them. After a while Ghulam Rasul heard the report of gunshot and Dost Muhammad came running up to him and told him that while the deceased was at the house of Wali Muhammad the appellant who was armed with a pistol fired at the deceased from behind, that Khudadino armed with a hatchet was with the appellant and that they ran away when Ghulam Muhammad fell down. Akil Channar had also reached the scene and he too witnessed this outrage and when he shouted to the culprits that they had killed a man, the appellant asked him to run away threatening that he would deal with him also in the same manner. Ghulam Rasul immediately went up to his brother, who was lying with gun‑shot injury, and to him the deceased Ghulam Muhammad said that lie had been shot by the appellant and that Khudadino was then present with him, armed with a hatchet. A number of people gathered, one of whom was witness Abdul Alim who found Ghulam Muhammad conscious. He however did not ask him as to who had caused the injury, but busied himself in making him comfortable. The deceased was then carried to a dispensary where a compounder Abdul Hadi (C. W. 1) administered some medicine, but the deceased expired. This was at about 9 or 9‑;0 p. m. and informa tion was given to the police at Tharu Shah six miles from the scene of occurrence at about 3 a. m.
The case for the appellant was that he was falsely implicated, that there was ill feeling between him and Bhalerakhlo Shah, as the latter had divorced the appellant's sister and was trying to take away his daughter whom the appellant had married, and that the appellant was ill in the hospital at the time the incident took place. Khudadino also stated that he was falsely implicated in the case, and to the same effect was the statement of Shah Muhammad.
In support of the prosecution, four witnesses were examined to prove the conspiracy, but they were not believed by the Sessions Judge as he considered their evidence unreliable. As regards the charge of murder against the appellant and the charge of abetment of murder against Khudadino the principal witnesses were Ghulam Rasul, the brother of the deceased, Dost Muhammad and Akil who were said to have witnessed the occurrence, Abdul Alim who came on the scene after hearing of the occurrence, and Court witness Abdul Hadi, the compounder of the dispensary. Dost Muhammad however did not support the prosecution even in the Committing Magistrate's Court. He deposed that on the day of occurrence he was not in Dhabro, that he did not know how Ghulam Muhammad was murdered and that there was no necessity for him to have taken Ghulam Muhammad to the house of his wife's uncle as his wife was not detained as alleged. He had however in his statement recorded under section 164, Cr. P. C. supported the version of the prosecution. Fitness Akil gave evidence in favour of the prosecution but Abdul Alim stated even in his examination‑in‑chief that uptill the time the deceased was picked up, put on a cot and taken to the well closely before he was taken to the dispensary, or at the dispensary, he did not hear anyone being mentioned as the assailant of the deceased or that anyone of the assailants had been identified. Witness Hadi, however, stated that when the deceased was brought to the dispensary at about 9 or 9‑30 p. m., Dost Muhammad who was present said that he had seen the appellant shoot the deceased with a pistol, and that Dost Muhammad did not mention any other name.
On behalf of the defence several witnesses were examined, one of whom was a mounted Head Constable who was on casual leave at the time of the occurrence. His version was that he came on the scene after hearing of the occurrence and found the deceased lying injured and that he neither saw Dost Muhammad or Akil there, nor heard the name of any assailant mentioned. He had Ghulam Muhammad carried to the dispen sary. P. W. Abdul Alim stated in his evidence that this witness came on the scene and questioned the deceased but the latter had become unconscious. According to Abdul Alim, however, Dost Muhammad was present at the scene of occurrence.
All the defence witnesses including D. W. 1 were disbelieved on the ground that they belonged to the party of the Sayyads. The learned Judges took the view that Dost Muhammad was won over by the defence, that the evidence of Hadi compounder that Dost Muhammad mentioned the appellant as the assailant of the deceased corroborated the evidence that the name of the appellant transpired immediately and that there was further corroboration in the evidence of Ghulam Rasul that his brother the deceased told him that the appellant had shot him and Khudadino was then present. There was also evidence of the foot‑prints having been traced and identified to which the learned Judges of the Chief Court referred, but it was conceded by the A learned Advocate for the Crown before us that that evidence by itself would not be sufficient to prove the case against the appel lant if the evidence of Akil and the other items treated as corro boratory evidence by the Chief Court could not be believed.
At the time of the petition for special leave it was contended on behalf of the appellant that the evidence of Hadi with regard to what Dost Muhammad said was not legally admissible as evidence corroborating the version of the prosecution, and in granting special leave this Court observe as follows :‑
"A perusal of the judgments delivered by the learned Judges shows that in coming to a decision on that question, they did not seem to be inclined to accept Akil's statement alone, but had also been influenced by Abdul Hadi's evidence that the petitioner's name was mentioned about two hours after the incident as a murderer of Ghulam Muhammad Channer. Had the learned Judges relied solely on the oral evidence and not depended on the evidence which is now being challeng ed as inadmissible, the task of this Court would not have been difficult. But inasmuch as the decision of the learned Judges of the Chief Court appears to be based on Akil's statement as well as on the evidence which may not be found to be legally admissible and it is not easy to state the extent to which the learned Judges had been influenced by Abdul Hadi's statement in coming to a finding against the petitioner, the petition for special leave to appeal must be and is hereby granted."
Referring to this observation the learned Advocate for the appellant contended that the evidence of Abdul Hadi was clearly inadmissible as what was said by him to have been mentioned by Dost Muhammad could not be considered as a declaration forming part of the same transaction as the murder in question, and that therefore that evidence should be excluded and we should consider the merits of the rest of the evidence ourselves and decide if it was sufficient to sustain the conviction. As regards the merits of the other items of evidence he argued that the version that witness Akil came to the shop of the deceased just at the time the deceased had proceeded to the scene of murder and that he also arrived at the scene in time to see the occurrence was too artificial to be believed, and that the evidence of Abdul Alim that the names of the assailants were not mentioned at the scene or at the dispensary falsified the evidence of Ghulam Rasul that the deceased had told him as to who had shot him. On behalf of the Crown it was contended that the evidence of Hadi referred to above was admissible under section 6 of the Evidence Act as a spontaneous statement made by Dost Muhammad and that even if it was regarded as inadmissible it could not be said that the finding of the learned Judges of the Chief Court was influenced by it. He also argued that even if the rest of the evidence was scrutinised by this Court there would be no doubt about the truth of the prosecution version.
In our opinion the contentions advanced on behalf of the appellant have to prevail and this appeal must be allowed.
We are unable to accept the argument that the evidence of Abdul Hadi, to the admissibility of which objection is taken, did not influence the learned Judges in confirming the conviction of the appellant. As has been observed in the order of this Court granting special leave, it is clear from the judgments of both Tyabji, C. J. and Constantine, J. that the learned Judges were influenced by that evidence. On this point Tyabji, C. J. observed as follows :‑
"Further, besides the evidence of Akil and Ghulam Rasul, which there is no reason whatever to disbelieve, there was the clear evidence of Abdul Hadi, the compounder at the dispen sary who clearly stated that the name of appellant No. 1 trans pired immediately."
Constantine, J.'s observation with regard to the evidence is as follows :‑
"Besides the corroboration of the First information there is the corroboration of the compounder that the name of Ghulam Nabi Shah had already transpired and this is admissible in so far as it refutes the argument that the Channars spent time in casing round for a Sayyed to implicate, or that Ghulam Nabi Dahraj is responsible for the accusation against Ghulam Nabi."
It is, therefore, necessary to consider whether the evidence of Abdul Hadi is admissible, for if it is inadmissible then we have to exclude it and assess the value of the rest of the evidence ourselves. Section 6 of the Evidence Act and illustration (a) to it on which reliance was placed for the Crown runs thus :‑
"Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
Illustration (a)
"A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by‑standers at the beating, or so shortly before or after it as to form part of the trans action, is a relevant fact."
The principle of this section seems to be that such declara tions as are referred to in the illustration should be substantially
contemporaneous with the act, and the interval between the act and the declaration should not be such as to allow of fabrication or to reduce the declaration to the mere narrative of a past event. In the present case Dost Muhammad's statement to Hadi, the compounder, can come under this section only if Dost Muhammad was a by‑stander at the occurrence, but as has been stated already he appeared as a witness and said that he did not know how the murder was committed. Relying on the evidence of Ghulam Rasul, Akil and Alim, however, the learned Judges held that Dost Muhammad was an eye‑witness but was won over. Even if Dost Muhammad is thus regarded as a by stander at the occurrence in spite of his own evidence, it cannot be said that his statement to Hadi was spontaneous and contempor aneous enough to form part of the same transaction as the act to which it relates. It is clear from Hadi's evidence that the deceased was brought to him at 9 or 9‑30 p. m. while according to the prosecution the occurrence took place at sunset. Plan in this case does not indicate the distance between the scene of occurrence and the dispensary, but it cannot be great as the dispensary is in the village of occurrence itself. There is not satisfactory explanation forthcoming as to why it took two to two and a half hours to remove the injured man to the dispensary. However, the transaction of the occurrence was over at the scene, and according to Alim no assailant was named at the place of occurrence. The learned Judges while regarding Abdul Alim as an independent witness explained away this evidence of his as due to lack of courage to speak the truth because the Sayyads were all powerful in the village of occurrence. But this explanation seems to us to be based on a mere surmise. No suggestion was put to him that he was afraid of the Sayyads, and the very fact that the deceased anal his brother Ghulam Rasul have been living in the village of occurrence running a shop indicates that the Sayyads were not so powerful as the learned Judges thought them to be. Constantine, J. has referred to Alim as a respectable personage of the village and all the assessors have stated that they believed him. There can be no presump tion that because he happens to be a resident of the village of occurrence and incharge of the mosque he lacked courage to speak the truth. In this connection the learned Judges seem to have overlooked the fact that neither Akil nor Ghulam Rasul have deposed that they mentioned the names of the assailants to Alim. In fact Akil has not stated that he mentioned the names of the assailants to those who had gathered at the scene.
As for Ghulam Rasul he deposed that he did not tell those who came on the scene either what the deceased had told him or that the appellant and Khudadino were the culprits, though he added later that he did mention those names to the people who had come on the scene of occurrence. None of those persons, however has been examined and as a matter of fact Ghulam Rasul said that he did not remember who they were. In these circumstances the interval between the act and the declaration to Hadi was certainly long enough to allow of fabrication. We therefore, consider that the evidence of Hadi was not admissible for the purpose for which the learned Judges acted on it; and we have already held that this inadmissible evidence influenced their decision.
In view of this conclusion we proceed to consider the merits of the rest of the evidence which consists mainly of the evidence of Akil that he saw the occurrence and of Ghulam Rasul that his brother made a dying declaration to him. As regards the evidence of the identity of shod foot‑prints, as stated already, the learned Advocate for the Crown conceded that that by itself was not sufficient and could be of no use if the main evidence was not to be believed.
Akil, the only witness who deposed to laving seen the appellant shoot the deceased is a Channar by caste. He has no doubt been believed by the Sessions Judge as well as the learned Judges of the Chief Court but it is significant that none of them characterise him as a disinterested witness. The entire defence evidence was disbelieved by the learned Judges on the ground that the defence witness were interested in the Sayyads. If the same standard is applied to the evidence of Akil it follows that it should be accepted with great caution. Apparently that was the reason why in the Courts below reliance was placed on what they considered to he corroborative evidence. It is true that importance should be attached to the impression made by a witness on a Judge who has taken down his deposition, but the evidence of this witness has not in our opinion been scrutinised by the Sessions Judge in all its aspects. The Sessions Judge observes about him as follows :‑
"To me there seems nothing improbable in what Akil says or in the reasons which prompted his presence at the time of the incident."
There is no discussion of the evidence of Akil in the judg ment justifying this conclusion. We have carefully examined the evidence of Akil and in our opinion his version is improbable and it is not safe to rely on it.
His story is that he had wheat to sell. He, therefore, came to the shop of the deceased and according to Ghulam Rasul he was in haste as his wheat was unattended' and yet he did not tell Ghulam Rasul how much wheat he wanted to sell or enquire about the rate at which wheat would be purchased from him. The explanation of Ghulam Rasul that he did business on a small scale and his brother attended to big business is hardly acceptable, because Akil had only 20 maunds of wheat to sell and as he was in hurry one would except him to have transacted his business with Ghulam Rasul, who was a partner in the shop. It appears to us that it is highly improbable that Akil in those circumstances would have rushed in the direction in which the deceased had gone knowing what for Dost Muhammad had taken him. It seems far more likely that he waited at the shop and went to the scene of occurrence only after the shot was fired. The coincidence between the departure of the deceased from and the arrival of Akil at the shop and also between the attack on the deceased and the arrival of Akil on the scene of occurrence is so strange and artificial that it is difficult to believe his version, particularly as he does not appear to be disinterested. Besides being a Channar, he admitted in cross‑examination that at the time of the occurrence he was an accused in a case brought against him and others by the father of a servant of Bhalerakhio Shah, that that case was pending when he gave evidence and that his brother‑in‑law Abdullah was a witness against Bhalerakhio Shah in a murder case against him. These aspects of the evidence of this witness do not appear to have been considered by the Sessions Judge or the learned Judges of the Chief Court. It is clear from their judgment that the learned Judges mere not prepared to rely on him solely but looked for corroboration in the rest of the evidence. One of the points mentioned by the learned Judges in this connection is that the name of this witness appeared in the First Information Report, but, as has been indicated above, this report was made at 3 a. m., the occurrence having taken place at sunset, though the distance to the police station was only six miles. The learned Judges, however, were satisfied with the explanation given for the delay; but we are unable to accept that explanation specially when it is seen that the suggestion in the First Information Report that the murderer had been instructed by Bhalerakhio Shah to murder the deceased, on which after investigation the charge of conspiracy C was made, seems to be false as is clear from, the acquittal of all the accused on that charge. The possibility of the delay being due to deliberation cannot be reasonably excluded. That being so, the mention of Akil in the First Information Report is no guarantee of the truth of his statement.
As regards the evidence of Ghulam Rasul about the deceased's dying declaration to him, it stands by itself, and he cannot be considered to be a disinterested witness. We are not impressed by his evidence in view of our observations made above with regard to the evidence of Abdul Alim. If the names of the assailants had been known or mentioned by Akil or the deceased at the scene of occurrence it is unthinkable that Alim, who attended on the deceased and helped his being carried to the dispensary would have been kept in the dark about it.
In this state of evidence it seems to us extremely unsafe, if not hazardous, to accept the case for the prosecution as estab lished beyond all reasonable doubt. We, therefore set aside the conviction and sentence imposed on the appellant and acquit him. He will be released forthwith.
In view of the above observations the conviction of Khudadino for abetment cannot be sustained; but he has not appealed. Without deciding as to whether in such cases we have the power to interfere in spite of their being no appeal, we recommend to the Provincial Government that the sentence imposed on Khudadino may be fully remitted.
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