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Criminal Appeal No, 671 of 1976 and Criminal Revision No 30 of 1977, decided on 11thAugust 1980.
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--Ss. 302, 307, 148 & 149-[Murder-case]-Appreciation of evidence----Witness---Corroboration-Existence of serious injuries on persons of witnesses-Not sole determining factor for decision on veracity of statement of such witnesses-Witnesses partisan or inimical to other party and perjuring themselves-Corroboration of their statements, held, required as against each accused.-[Witness --Evidence].
--- Corroborative evidence-Must be both as to corpus delicti and as to identity of accused.-[Evidence].
The corroborative evidence, whether direct or circumstantial must be evidence which confirms in material particulars not only that the crime has been committed, but also that the accused had committed the crime. Corroboration must, therefore, he both as to the corpus delicti and as to the identity of the accused. Medical evidence will not furnish corrobo ration on the identity of the appellants.
-- Ss. 302, 307, 148 & 149 read with S. 34-[Murder-case]-Sudden fight-Appreciation of evidence-Incident result of sudden flare up and immediate reaction to exchange of abuses between parties-- Common intention formed at spur of moment-Case, held, covered by rule of constructive liability as laid down in S. 34, Penal Code 1860.-[Evidence-Common intention].
Machhia and 2 others v. State P L D 1976 S C 695 ref.
Sh. Maqbool Ahmad (I) for Appellants.
Ross Tariq Bajwa for A.-G. for the State.
Sh. Maqbool Ahmed (II) for the Complainant.
Date of hearing: 24th July, 1980.
Accused numbering ten in all were brought to trial before learned Additional Sessions Judge, Sahiwal on the charges under section 302/ 307/ 148/149, Pakistan Penal Code in respect of the incident result ing in death of Walia, and injuries to a few others on the complainant side which took place on Ist January 1972 at Deegerwela (late afternoon) in the area of Chak No. 47/2-L within the jurisdiction of Police Station Okara (Saddar), District Sahiwal. One of the accused named Waryam was given benefit of doubt and acquitted of the charge. The remaining nine accused, namely Maltram son of Waryam, Noor, Manzoor and Jalla sons of Shameer, Lal and Chawa son of Kaloo, Sher, Lal and Zulfiqar sons of. Khan were pronounced guilty for the offences under sections 148 and 325/149, Pakistan Penal Code and ordered to suffer sentence of rigorous imprisonment for one year each on the first count (S. 148) and sentence of rigorous imprisonment for four years plus a fine of Rs. 5,000 each, in default further rigorous imprisonment for six months for the next offence (under section 325/149, Pakistan Penal Code). The substantive sentences were trade concurrent. It was also directed that in the event of recovery, the amount of fine shall be partaken by the heirs of the deceased and the four injured witnesses [Waryam, Pahlwan, Sadiq and Shahadat (P. Ws. 12 to 15)]. The convicts have appealed for setting aside- of their convictions and sentences. Khan son of Walia deceased on whose report case was registered against the appellants has filed petition in revision (Crl. Revision No. 30/77) to challenge acquittal of the appellants and Waryam accused on the charge of murder. At the hearing learned counsel for the complainant (revisional petitioner) had said that in view of the fact that eight years had elapsed from the date of occurrence he was not advised to press the application for order directing retrial of the case. He will press only for suitable enhancement of sentences awarded to the appellants by the trial Court which in his view are manifestly inadequate and disproportionate to the charges upheld against the appellants particularly, for the reason that act of aggression on the part of the appellants had resulted in loss of human life. Both appeal and revision petition arising out of the same judgment are disposed of together.
2. The parties belong to the same village. There is evidence of pre vious enmity between them to which reference will be made in due course. Case made out by the prosecution was that at the time of incident Qasim a menial in the village who was not examined and dropped as having been won over by the accused was present at the house of Shahadat (P. W. 15) where the trouble had initially started. Noor appellant asked Qasim why he did not grind their wheat to which Qasim replied that he will do the needful next day. The appellant abused Qasim which was resented to by Shahadat (P. W. 15) and the appellant was asked to desist from doing that as long as Qasim was present at the house of the witness. This led to exchange of abuse between the appellant and Shahadat. Manzoor a brother of Noor and Lal son of Kaloo were present nearby outside the house of Shahadat. These two appellants joined Noor and they all three entered the house of Shahadat and started dealing him injuries with dangs. Shahadat raised an outcry and ran towards the Dhari of Walia situated in Killa No. 8 of Square No. 41 at a distance of two and a half acres from his house. Walia deceased, Pahlwan and Sadiq (P. Ws. 13/14) ran from the side of dhari of Walia towards Shahadat Khan and Waryam (P. Ws. 8/12) both real brothers and sons of Walia deceased were present in Killa No. 3 of Square No. 41 and engaged in cutting fodder. They also rushed towards Shahadat. The remaining six appellants and Waryam accused since acquitted at the trial all armed with dangs came running from the side of their houses in village abadi which is at a distance of 2 acres. Mabram, Chawa, Lal son of Khan and Waryam assaulted Walia deceased as a result of which he fell down in Killa No. 23 which is at a distance of 80 Karams from his dhari. Chawa appellant got on the chest of the deceased and strangulated him. Mahram appellant placed his hands against the nose and mouth of the deceased to stop respiration. Lal son of Khan appellant caught hold of the deceased from his legs and Waryam had been shouting lalkara that the deceased be done to death. Jalla and Bashir had caused injuries to Waryam and Mohammad Sadiq (P. Ws. 12/14). Zulfiqar appellant gave injuries to Pahlwan (P. 13). Noor and Manzoor appellants rushed at Khan (P. W. 8) who ran away towards his house. Hasta (P. W. 11) and Mst. Rani widow of Walia deceased and mother of Khan (P. W. 8) came out of the house. The said two appellants and the remaining accused then left away towards their houses. Accompanied by Hasta and Mst. Rani, Khan (P. W. 8) returned to the place of occurrence in Killa No. 23 and found Walia dead. Khan left for Police station to lodge the report and came across Jamal Din Sub Inspector (P. W. 16) during the way at bus stop of Chak No. 49/2-L at 8-30 p.m. distant two and a half miles from the site and five miles away from the police station. The Sub-Inspector recorded statement (PE) of Khan and sent the same to police station where formal First Information Report, (PE/1) was registered by Fida Hussain Assistant Sub-Inspector (P. W. 9) at 10-30 p.m. The Sub inspector reached the site at 10-00 p.m., prepared injury statement and inquest report (PY/PZ) of the deceased and despatched the dead body to mortuary through Mohammad Fazal Constable (P. W. 5) and Mohammad Sharif a Qaumi Razakar. The four injured witnesses Waryam. Shahadat, Pahlwan and Mohammad Sadiq were also referred to the hospital vide injury sheets (PU/I, PV/1, P. W./I and PX/1). Blood-stained clothes (P I to P 7) of Pahlwan. Shahadat and Waryam were also secured by means of memo. (PF, PG and PH). Blood stained earth was collected from the site in Killa No. 23 by means of memo. (P.R.) which was on necessary examination found to be stained with human blood (PB/1-PZ/1).
Post-mortem examination of the deceased was held next day at 1-30 p.m. by Dr. Ashfaq Ahmad, Medical Officer, Civil Hospital, Okara, which is at a distance of 6-7 miles from the site. The doctor could not be produced in evidence at the trial as summons (P. W. 6/A) issued to him was received back with the report of Process Server (Abdul Shakoor Constable P. W. 6) that the doctor had left for abroad. Report of post -mortem examination (PA) was proved by secondary evidence through statement of Abdul Rashid Siddiqi (P. W. 7) a Dispenser in Civil Hospital, Okara. The deceased had following injuries on him:-
(1) Abrasion with contusion " x 1/6" (contusion " x ") on the right side and tip of nose.
(2) Abrasion " x " on the lower part of chin, a little towards right of the midline.
(3) Three parallel abrasions with contusion in an area of 3" x 2" on the right front chest " below right nipple and 8" above and outer to the umbilicus.
(4) Scratch " in the same line below the inner side of Injury No. 3.
(5) Contusion 4 " x 3" on the top and back of left shoulder.
(6) Abrasion with contusion 1" x " on the back of right scapular region.
All injuries were caused by blunt weapon. The doctor expressed the opinion that death was caused by suffocation due to closure of nose and mouth and compression of chest as was evident by Injuries Nos. 1 to 3 which were fatal in the ordinary course of nature (PA). Visceras of the deceased were also sent to Chemical Examiner to ascertain the probability of any, of poisoning. The latter reported in negative (PB).
Four injured witnesses were examined by doctor Rafiq Hussain (P. W. 1). Their injuries were as below:--
1. WARYAM
(1) A lacerated wound 2" x " x skin deep on the top of head.
(2) A lacerated wound 1" x 1/6" x skin deep 1" below injury No. 1,
(3) Swelling 1" x " on the back of head.
(4) Abrasion 1" x " on the back of left index finger.
(5) Abrasion 1 x " on the right scapula middle.
(6) Abrasion 1" x " on the top of left scapula.
(7) Swelling 1'' x 1'' in the middle of left forearm.
All injuries were caused by blunt weapon.
Injuries (1 to 2) were kept under observation while the rest were declared simple in nature (PU). The said two injuries were also eventually found simple in nature.
2. SHAHADAT
(1) A lacerated wound 2 " x x bone deep on the right side of head 1" above the hairy line (X-ray advised).
(2) A lacerated wound 1" x 1/6'' x skin deep on the left side of back of head.
(3) The right eye had, gone black and eye-ball was swollen.
(4) Three lacerated wounds: '' x " x bone deep, 1 " x " x bone deep and " x " x bone deep, in the front of upper one-third of right leg. Each injury was " apart.
(5) Swelling " x " on the back of left middle finger.
(6) Swelling 1" x 1" on the middle of the back of left hand (X-ray advised).
All injuries were caused by blunt weapon.
Injuries 1, 4 and 5 were kept under observation and remaining injuries were declared simple. Injuries Nos. 1 and 5 were subsequently declared grievous as extensive fracture of frontal bones and fracture of middle phalanx of left finger were noticed during X-ray examination (PD).
3. PAHLWAN:
(1) A lacerated wound 1 " x 1/6" x bone deep on the right side of head 2" above hairy line. (X-ray advised).
(2) A lacerated wound " x " x " on the back of lower one-third of right upper arm.
(3) Swelling 3" x 2" on the middle of right forearm on the back (X-ray advised).
(4) Abrasion 1" on the back of lower one-third of left forearm.
All these injuries were also caused by a blunt weapon Injuries 1 and 3 were kept under observation while the remaining two injuries (2 and 4) were found simple in nature. Injury No. 3 was after X-ray examination declared grievous (Exh. P. W.).
4. MOHAMMAD SADIQ:
(1) Abrasion 2" x 2" on the top of head.
(2) Complaint of pain in the neck.
(3) Swelling 2" x 2" on the back of right hand.
(4) Abrasion 2" x 2" in the right side of abdomen.
All these injuries were caused by blunt weapon and found simple in nature (PX).
The appellants excepting Zulfiqar were arrested on. 9th January 1972 and bad same day allegedly led to the recoveries of sotas (P 8 to P 15) which were taken into possession by means of memo. (PL to PQ)
Waryam accused was found innocent during investigation Process .was issued to him by the Magistrate on a complaint filed by Khan (P W. 8) on 17thApril, 1972 and he was also sent up for trial along with the appellants.
Seventeen witnesses were examined by the prosecution. False impli cation due to enmity and previous litigation was the plea in defence. Noor appellant came up with a detailed counter-version of the incident, contending that at the time of occurrence Shahadat (P. W. 15) had abused him on the road close to his house on account of previous ill-will. The appellant raised alarm which brought Nazar and Bashir sons of Mahr, Nazar son of Bashir and Ahman a tenant of the appellant. They had caused injuries to Shahadat (P W. 15). Meanwhile, Pahlwan and Waryam had also reached the site with sotas in their hands. They were also caused injuries by Nazar, etc. Ahman had pressed the neck of the deceased to kill him. The real facts were given a twist by the complainant side.
A single witness Mohammad Lateef Naib Moharrer Police Station (Saddar) was examined in defence to prove that Mohammad son of Waryam accused since acquitted and a real brother of Mahram appellant and Mohammad son of Kalu a real brother of Lal and Chawa appellants were accused in a previous case of assault on the deceased under section 325 which was registered in the year 1969 and had ended in a compromise. This evidence was unnecessary as this fact was not denied by the complainant side.
3. On consideration of evidence examined before him learned Additional Sessions Judge held that the occurrence took place in Killa No. 23 of Square No. 41 where the dead body of the deceased was lying which fact was established by the report of Chemical Examiner (PB/1) that earth collected from the site was found stained with blood of human origin. Presence of eye-witnesses at the time of occurrence was natural, especially, presence of four injured witnesses was not open to question. The facts that the first information report was recorded at a place outside the police station, despatch of dead body from the site was delayed in ordinately, the witnesses were partisan, and had in their statements at the trial also made a "significant improvement" for the allegation that besides having been caused injuries by dangs, Wallia deceased was also strangulated to death were rot sufficient to discard their statements. It was not advisable to follow rigorously the rule that credibility of witness was not divisible and the principle that grain be separated from the chaff should be adopted for justice in the case. The number of injuries on the deceased and witnesses well commensurated with the number of assailants as alleged by the prosecution Waryam accused was acquitted for the reason that he was declared innocent during successive investi gations and in view of his fairly old age it was unlikely that he could have actively participated in the offence.
Learned Additional Sessions Judge further held that the appellants bad neither the motive nor the intention to kill the deceased. They bad simply intended to cause injuries to the deceased and the witnesses. Injuries on the person of the deceased were not serious and also not on vital parts of the body. Injuries Nos. 1 to 6 could not be treated fatal in the ordinary course of events. The language used by the doctor in post- mortem examination report regarding the cause of death of the deceased also showed that the doctor himself was not sure about the cause of closure of mouth, nose and compression of chest which had accounted for death of the deceased. The appellants were in view of these findings held guilty for the offences under section 148;'325/149, Pakistan Penal Code.
4. Charge against the appellants rests exclusively on the statements of six eye-witnesses in the case of whom four have injuries on them and the medical evidence. Recoveries of common place sotas were of no avail to the prosecution and were rightly left out by Additional Sessions Judge.
Khan (P. W. 8) has in his statement corroborated the allegations made in the First Information Report (PE). He says that he was along with his brother Waryam (P. W. 12) engaged in cutting fodder in Killa No. 3 of square No. 46. Shahadat (P. W. 15) came running from the side of his dhari followed by Noor, Manzoor and Lal sons of Kalu. Meanwhile, the remaining six appellants and Waryam accused all armed with dangs had rushed from the side of their houses. The appellants and Waryam accused had dealt injuries to the deceased, Waryam. Pahlwan and Mohammad Sadiq (P. Ws. 12 to 14). Chawa appellant had got on the chest of the appellant after he had fallen down and had strangulated him. Mahram had stopped respiration of the deceased by pressing his nose and mouth. Lal appellant had held the deceased by his legs and Waryam had been shouting lalkara. Noor and Manzoor appellants wanted to attack him whereat he ran away towards his house and was chased by the said appellants. They left away when his mother Mst. Rani and Hasta (P. W. 11) came out. Hasta (P. W. 11) a cousin of Mst, Rani mother of Khan and Waryam (P. Ws. 7/8) resided at a distance of 20/25 miles from the place of incident. He corroborates the statement of Khan (P. W. 8) that Noor and Manzoor appellants had chased Khan to his house. Waryam, Pahlwan, Sadiq and Shahadat (P. Ws. 12 to 15) all of whom and injuries on them had also made similar statements. Statement of Hasta (P. W. 11) should be excluded for there is no tangible circumstance to guarantee his presence at the time of incident. Presence of Khan (P. W. 8) although he was not injured could not be doubted seriously as the occurrence had taken place close to his house as well as his held. Presence of hour eve-witnesses is guaranteed by injuries on them.
5. Conviction of the appellants is challenged on the ground that learned Additional Sessions Judge was vastly influenced by the fact that four eye-witnesses in the case had serious injuries on them. Presence of the injuries on the witnesses could not be the sole determining factor for the decision on veracity of their statements. Some special features of the case had not earned a befitting attention of learned Additional Sessions Judge in recording finding of guilty against the appellants. The contention has a substance in it although it could not be sustained in its entirety.
Evidence on the prosecution side is highly partial and interested. Khan and Waryam (P. Ws. 8/12) are sons of the deceased. Pahlwan (P. W. 14) is a real brother of the deceased. Sadiq and Shahadat (P. Ws. 14/15) real brothers inter se are maternal cousins of the deceased. The appellants are drawn from the same family but exact relationship inter se is not ascertain able from record.
As indicated above case of assault on the deceased against Mohammad son of Waryam a real brother of Mahram and Mohammad son of Kalu a real brother of Lal and Chawa appellants under section 325, Pakistan Penal Code registered in the year 1969 had ended in a compromise. However, enmity in the relations of the parties appears to have been short-lived. Mst. Fateh Bibi a real sister of Sadiq and Shahadat (P. Ws. 14/ 15), maternal cousins of Walia deceased had passed away and Mohammad a brother of Lal and Chawa appellants who was an accused in the case under section 325, Pakistan Penal Code mentioned in the preceding lines had made an application that Shahadat had killed Met. Fateh Bibi, Pahlwan (P. W. 13) a real brother of the deceased admits that the application made by Mohammad alleged that Mst. Fateh Bibi was killed by him, Sadiq and Shahadat (P. Ws.). Further, Ghulam son of Bakhtawar, maternal cousin of Chawa and Lal appellants, a nephew of Waryam accused and real uncle of Noor, Manzoor and Jalla appellants were, tried for the murder of Mohammad Ameer son of a sister of mother of Pahlwan (P. W. 13), and the deceased. Sultan a first cousin of the mother of Pahiwan, deceased and Mst. Jawai their maternal aunt, a sister of their mother were witnesses on the side of prosecution in that case.
Thus the witnesses had the motive to falsely implicate the appellant or exaggerate the number of assailants so as to rope in the whole family of the appellants. The witnesses bad made crude exaggeration in their statements at the trial that Chawa and Mahram appellants had with the abetment of Lal and Waryam strangulated the deceased to death These allegations were neither made in the First information Report nor in the statements of the witnesses before the police under section 161, Cr.P.C. nor in the private complaint (PH) filed by Khan (P.W. 8) on 17th April 1976 so that Waryam accused who was adjudged innocent by the police should also face trial along with the appellants.
Statement (PE) of Khan (P. W. 8) purportedly recorded by Jamal Din Sub-Inspector (P. W. 16) at the bus stand within a few hours of the incident is a doubtful document. Muhammad Fazal (P. W. 5) who had escorted the dead body from the site and all the remaining eye-witnesses had said in their statements before the Inquiry Magistrate that dead body was taken from the site to hospital at Peshiwala on the following day. Ali these witnesses had changed their version at the trail and said that dead body was despatched from the site during night. Delay in the despatch of the dead body leads to the inference that there had been, extensive consultations for concoction of a story to rope in maximum number of persons and the First Information Report which was recorded outside the police station was not recorded within a few hours of the incident as it purports to be. These facts called for greater caution and care in weighing evidence of witnesses who were partisan, interested, and had also made false statements on a material aspect of the case.
5. Learned Additional Sessions Judge was swayed away completely by the fact that the witnesses had in juries on there to ignore all infirmities in their evidence viz, partiality, deliberate perjury etc, which was not in consonance wits the rule of safe dispensation, of criminal justice He had not kept in view well-accepted rules of producer that evidence of interested, witnesses should not be accepted without corroboration which should satisfy or tend to satisfy the mind of the Court that the witnesses had spoken the truth. It was wrong to say as a general proposition that evidence of eye-witnesses who had injuries on them deserve credence. Injuries ors the persons of the witnesses made it fairly certain that they had seen the occurrence but it is no guarantee whatever, that the story they tell is true or that each of the accused named by them was concerned in the incident. In cases where witnesses are partisan, inimical and had also perjured themselves at the trial, there should be corroboration of their evidence qua each accused. The corroborative evidence, whether direct or circumstantial must be evidence which confirms in material particulars not only that the crime has been committed, but also that the accused had committed the crime. Corroboration roust, therefore, be both as to the corpus delicti and as to the identity of the accused. Medical evidence will not furnish corroboration on the identity of the appellants. I feel tempted to refer to the observations made by Supreme Court in Machhia and two others v. State (P L D 1976 S C 695) on the quantum and effectiveness of corroboration provided by medical evidence in such cases. It was observed at page 707 of tire report that medical evidence by itself cannot throw any light on the identity of the assailants but in the case of inimical evidence it is this aspect of the ocular evidence which requires corroboration because clanger an relying on the ocular evidence in such case is that the witnesses may have falsely implicated their enemies, At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses had spoken the truth. This however, would be in special circumstances.......... ..This rule should be applied more stringently in this case for the reason that the witnesses had made deliberately false statements that the deceased was strangulated to death after he had fallen down on receiving injuries with longs, etc. Besides learned Additional Sessions Judge had taken a hazardous view that the number of injuries on the deceased and the witnesses excluding Shabadat (P. W. 15) who had received injuries in the first incident at his house confirmed the allegation that the number of assailants who participated in the second incident and had caused injuries to the deceased, Waryam, Pahlwan and Sadiq could not be less than tern as was alleged by the witnesses.
6. It appears from the overall picture of the site that the first incident at the house of Shahadat did take place between Shahadat, Noor, Manzoor and Lal son of Kalu in which Shahadat had sustained six injuries. Shahadat had run outside the house for safety. The number of injuries on Shahadat confirms his allegation that he was assaulted by three persons. There appears to be no embellishment or exaggeration or false implication so far as this incident is concerned. The plea of substitution which is a rare phenomenon put forth by Noor appellant was rightly rejected by learned Additional Sessions Judge. Two injuries on the person of Shahadat were found grievous. The incident was the result of a sudden- flare-up and immediate reaction to the exchange of abuse between Shahada and Noor appellant. However, in this case, a common intention was formed at the spur of moment when Shahadat was chased to a conside rable distance and caused injuries. The case was covered by the rule of constructive liability as laid down in section 34, Pakistan Penal Code.
Further incident took place at some distance in Killa No. 23 of Square No. 41 where the deceased Waryam, Pahlwan and Mohammad Sadiq (P. Ws. 12 to 14) were injured by several persons on the side of the accused. It could not be said with any reasonable certitude that all the remaining six appellants had taken part in this second incident and had caused injuries to the deceased and the above-named witnesses. Those six appellants are entitled to benefit of doubt, as it is not clear who of them had not participated in the occurrence. They stand acquitted of the charge and are discharge of their bail bonds.
In the result, conviction of Noor, Manzoor, and Lal son of Kalu appellants under section 325/34, P. P. C. for having caused grievous hurt to Shahadat (P. W.) is maintained. As I could see they were admitted to bail during trial after they had remained in jail for two years. Sentences of the appellants were suspended after they had undergone term of fourteen months, the sentence which they had already suffered with a fine of Rs. 1,000 each in default rigorous imprisonment for four months should in my view amply meet the demands of situation. The appellants will be served with notice for a week at least to make payment of fine before they are ordered to be recommitted to jail for non-compliance. The entire amount of fine if recovered shall be paid to Shahadat (P. W.) by way of compensation under section 544-A, Criminal Procedure Code. Appeal disposed of accordingly. Revision petition stands dismissed.
Supplementary Note (Dated 11th August, 1980)
Evidently, conviction of Noor, Manzoor and Lal son of Kalu appel lants under section 148, P. P. C. who have been held guilty under section 325/34, P. P. C. was not maintained. This supplementary note shall be deemed to have been added under section 369 read with section 561-A, Cr. P. C. for correction of a mistake by oversight.
Appeal partly allowed.
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