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Appeal No. 9‑D of 1959, decided on 22nd May 1959.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 12th December 1958, in Criminal Appeal No. 107 of 1958).

Charge to jury‑Non‑direction‑Question whether shooting had taken place f tom distance or at close quarters‑Failure of Judge to place detailed evidence of doctor before jury‑Grave omission.

Where the central question upon which the decision of the case turned was whether the shooting had taken place from a distance of 40 yards as the prosecution alleged, contrary to the defence allegation that it took place at close quarters, it was held that the detailed evidence given by the doctor was of utmost importance, and the failure of the trial Judge to place it before the jury constituted a grave omission, which was calculated to prejudice the case for the defence seriously.

Abu Muhammad Abdulla, Advocate Supreme Court for Appellant.

B. A. Siddiky, Advocate‑General East Pakistan (T. H. Khan, Advocate Supreme Court with him) instructed by Shahabuddin Ahmad, Attorney for Respondent.

Date of hearing: 22nd May 1959.

.‑This appeal by Syed Ali Imam is brought before the Court in consequence of special leave granted to him upon a jail petition to appeal against his conviction under section 302, P. P. C., for causing the death of three persons named Taki Munshi, Safat and Kalimuddin, by firing at them with a single‑barrelled shotgun.

Some of the relevant facts of the case are not in dispute. Syed Ali Imam and his co‑accused who was acquitted, named Sheikh Anwarul Haq, were sepoys in the Pakistan Army. On the night of the 5th July 1957, these two persons hired a bullock‑cart at a place called Pak Hilli, to take them and their goods to a place described as Gorhagat camp. Syed Ali Imam had with him the gun and a number of cartridges, presumably for self protection. The two men had a quantity of valuables with them, in the cart including money and gold. It seems that on the way,' in the middle of the night, they met a number of groups of men, who seemed to be carrying weapons. The two men threatened one such group, which they encountered, and the men ran away. About two miles further on, according to the prosecution version, they met another group of about 8 or 10 persons, who had a cow, goat and a sheep with them. The military men said that these persons were dacoits, but the cartman Jamat Ali who belonged to the locality, deposed that he told them that these were villagers returning from hat. This witness's evidence‑in‑chief was that while the men were still 80 cobits (=40 yards) away, and despite his protest, Syed Ali Imam fired three shots at them, after which the cart drove off. The two sepoys and the cartman apparently did not stop to examine what had been the result of the firing. Further on, they met three other men whom they stopped and ordered to guide them up to their camp, under threat of being killed. The next habitation on the way was Bhaduria. By this time it eras early morning. At Bhaduria, the military men asked the guides to collect the local people and when they gathered, Syed Ali Imam told them that he had killed "four or five dacoits". The village officials and other locals collected and the military men were then captured and imprisoned after being beaten. Going to the spot where the firing had taken place, Taki Munshi and Safat were found there lying dead, and Kalimuddin who had received a pellet wound through his eye was lying unconscious. He died latter in the hospital. A thanedar Abdus Salam (P. W. 22) who was camping at a village three miles from Bhaduria receiving information of the occurrence at about 7 a.m., on the 6th July 1957, went to the spot and took charge of the case. Syed Ali Imam made a report to him, which was taken down and has been exhibited in the case. Briefly, this report was to the effect that while the sepoys were proceedings with the bullock‑cart they encountered groups of men on the way and Anwarul Haq had to fire once in order to frighten them away, but at about 2 and 3 a.m. when the cart had reached Bhaduria, some men attacked the bullock‑cart, and injured both the sepoys and snatched away a bag containing Rs. 900 from the possession of Anwarul Haq. They also fired two or three shots as a result of which Ali Imam received an injury on his elbow. In order to save himself, Ali Imam fired three shots in the air. The suggestion was however, made in the cross‑examination of the witnesses, that Ali Imam fired in order to prevent the assailants from committing robbery.

One point of difference between the two stories is as to the range at which the shots were fired. A range of 40 yards is a very considerable range for fire from a shotgun. At that range, a charge of pellets scatters very widely, and close patterns of pellets are not to be expected upon a target hit at that range. The penetra tive power of pellets, owing to lost of speed, is also greatly reduced at that range. Thus penetration deep into a human body, or even more so, through hardened bone structures such as the human skull in a person of mature age is not ordinarily to be expected. In this case, the injuries found on the three dead men are clear the result of pellets of no great size, discharged in considerable, number at each fire.

Another point of difference is as to the place and time at which the sepoys were beaten. Ali Imam says they were assaulted on the spot, but the prosecution admission, reluctantly made are that the beating was given in Bhaduria. Ali Imam's injuries were two bruises on the right forearm and the left back, a lacerated wound" in length on the head, and a punctured wound on the left elbow with marked swelling of which the dimensions, surprisingly enough were not measured by the doctor. This was said by Ali Imam to be the result of a pellet wound, but the doctor deposed that it was probably caused with a sharp‑pointed weapon. Anwarul Haq also had a wound on the head, and a bruise on his right forearm.

As will presently be seen, the cartman Jamat Ali made important admissions, supporting the sepoys' version that they and the cart were attacked just before Ali Imam fired. But even Jamat Ali does not say that any shots were fired at the cart or the sepoys, though his statement contains an indication that spears might have been used by the assailants. Having said in his examination‑in‑chief that the men were 80 cubits away when Ali Imam fired, in cross‑examination he stated as follows: ‑

"Some of the men whom we saw at Dargatala had ballam in hand. At that time military men told that they were dacoits. When we reached near Matihara school we saw 8/10 men. I saw lathes in their hands. One of them shouted at the military Black Mark' implying thereby that smuggled goods were being carried in my cart. On ether side of the road here and there were bushes as we proceeded further on, we heard whisper ing sounds by the side of my cart, Before the firing some men struck the hood of my cart with lathi. Thereupon three shots were fired. Some men had attacked and assaulted the military men in the cart with their lathis. The gun was fired after these assaults".

The trial was by jury before whom a number of the locals includ ing persons who had been in the company of the murdered men at the time of the firing, and the men who had later been impressed to act as guides‑ for the cart, and a number of residents of Bhaduria, who had joined in capturing the two accused persons, gave their accounts of the incident. As was to be expected, the eye‑witnesses of the shooting, that is to say the companions of the three men who were killed did not make any admission relevant to the defence allegation that the cart had been assaulted and the military men had been beaten before the shots were fired. Medical evidence regarding the condition of the bodies was led before the ‑jury, but in the charge, it was not discussed in detail. It was referred to merely as proving that the three men were in fact dead. Since the central question upon which the decision of the case turned was whether the shooting had taken place from a distance of 40 yards as the prosecution alleged, contrary to the defence; allegation that it took place at close quarters, the detailed evidence given by the doctor was of the utmost importance, and the failure of the trial Judge to place it before the jury constituted a grave omission, which was calculated to prejudice the case for the defence seriously.

It should be mentioned that the point does not appear to have engaged the attention of counsel for the accused persons at the trial, and the failure of the trial Judge to place it before the jury may thus be accounted for. The jury found Ali Imam guilty under section 302, P. P. C. by a majority of six to one, the solitary dissident opining that the offence lay under section 304, P. P. C. An appeal was taken before the High Court, and surprising as it may seem, the point arising out of the medical evidence was not taken by the appellant's counsel even there, nor did it attract the notice of the learned Judges who dealt with the appeal and dis missed it on the ground of the absence of misdirection or non direction in the charge to the jury.

We find that it is clearly apparent from the medical evidence that the shooting took place at close quarters, and corroboration of a concrete and undeniable type is thus available to support the admissions made by Jamat Ali in his cross‑examination, which admissions went a. long way to support the version of the incident, constituting a plea of self‑defence, which had been given by the accused Ali Imam himself. The evidence, which we regard as of primary importance is that of Dr. S. Hassan who performed the post‑mortem examination of the three dead bodies. On the body of Taki Munshi he found two punctured wounds on the frontal region of‑the head, four punctured wounds on the anterior surface of the right thigh whose margins were "sharp, scorched and tattooed", another punctured wound on the nose whose margins were tattooed, and two punctured wounds on the left ear. All these wounds had been caused by the entry of pellets from a shotgun cartridge. The four punctured wounds on the front of the right thigh were evidently wounds of entry, for the doctor went on to say that these wounds "communicated with a wide punctured wound on the posterior surface of the thigh whose margins were everted and lacerated".

Now, it is, or should be, a matter of common knowledge in the criminal Courts that scorching of the margins of wounds caused by gunshots results from contact with burning gun‑powder, and that the tattooing of such wounds is due to the carrying of unburnt grains of gun‑powder along with the missile, which on account of their speed enter the skin and remain embedded therein. It is evident that these results cannot follow unless the object struck is at a very short distance from the mouth of the fire‑arm used. The maximum distance at which these physical results are ordinarily known to be caused is about 6 to 8 feet. Therefore, the evidence of Dr. Hassan furnishes very strong support for the defence plea of firing in the face of direct assault, and equally has force to negative the prosecution case that the firing took place at 40 yards' range. At that range, such results as scorching and tattooing are completely outside the range of possibility. The doctor's evidence moreover furnishes proof that two shots were fired at Taki Munshi. The five wounds on the head appear to be the result of one shot, and the wounds on the thigh, the result of a second shot. Tattooing of the wound of the nose is clear proof of proximity, but the wounds on the thigh were also scorched, indicating and even shorter range. Moreover, it is clear from the doctor's statement that the pellets, which entered the front of Taki Munshi's thigh exited through a large wound at the back of the thigh. That is a result which follows only when a large charge of short or a number of grouped pellets enter the body at one or more places, carrying with them a part of the compressed gases created by the fired gun‑powder so that they blast their way through the body leaving a larger exit wound than the entrance wound. It is typical also that the margins of the exit wound should be, as was found by Dr. Hassan in this case; everted and lacerated. The doctor's evidence also shows that in the course of the passage of this charge of shot through the thigh, the lower end of the femur bone was fractured into pieces, indicating the great force of the blast and the strong concentration of pellets. These matters could, and should have been elicited by a few simple questions put to the doctor when he gave evidence. They will be found discussed in any good book on Medico‑legal Jurisprudence.

Now, according to the prosecution case only three shots were fired, and these were fired in quick succession. There is no evidence of any movement by the gunman or the group at which he was firing. The weapon being single‑barrelled, it would naturally be necessary for the user to reload after each lire and this serves to indicate that Taki Munshi and his men stood their ground. It seems clear that both of the shots, which struck Taki Munshi were fired at close quarters. The injuries caused to Safat and Kalimuddin were either the result of pellets from the third shot fired, or of scattered pellets from the discharge which led to the injuries on Taki Munshi's head. Safat's body showed 19 marks of pellets, which had entered his chest on both sides, some of which had penetrated down to the lungs, one having penetrated the heart. The pattern is a close one, and the number of pellets indicates that these injuries were the result of a single fire, at no great range, for the penetration was deep. Another pellet wound on the left outer arm was probably a result of the same discharge. A single pellet had penetrated Safat's skull and this would appear to be a stray pellet not belonging to the same discharge as caused the chest wounds. As for Kalimuddin he had a pellet through the left eye, which had lodged in the brain, and another pellet had caused a grazing wound on the left side of his head. It is not unreasonable to suppose that the head wounds of Taki Munshi, Safat and Kalimuddin all resulted from the sank shot fired at a range of less than 6‑8 feet in the case of Taki Munshi and somewhat‑ greater ranges in the case of the other two, but yet very much less than the 40 yards' range on which the prosecution case is based. Indeed, since the night was pitch dark such accuracy of aim at a range of 40 yards would be clearly inconceivable.

On a careful examination of the injuries, it should have been evident that the injuries of all three men were caused by gunshot fired at very close quarters. This was a matter, which should have been placed in this way before the jury, as a matter which strongly supported the defence plea of firing in self‑defence, which plea also received support from important admissions made by Jamat Ali in his evidence. We find that Jamat Ali's admissions were placed before the jury in the very words of the witness, and the jury were left to draw their own conclusions, but no mention was made of the support given to these admissions by the medical evidence. In discussing the plea of self‑defence, the trial Judge merely mentioned the evidence of Jamat Ali and asked the jury to consider and find.

"Whether or not there was an attack on the cart and if there after Syed Ali Imam had fired the shots then he can be said to have acted in exercise of a right of private defence . . . . . If there was no attack on the cart or if the two accused were not assaulted then certainly they had no right to open fire on any body".

It cannot be denied that this aspect of the case would have received a very great access of strength had the trial Judge examined the medical evidence in the manner which we have found necessary, and placed before the jury his opinion as to the effect of that evidence upon the determination of the question at what range the shots were fired.

We are clear in our minds that the case ‑for the defence has suffered grave prejudice through this failure on the part of the trial Judge. We entertain no doubt that had this omission not occurred, it would have been impossible for the jury acting as reasonable men, to come to any other conclusion but that the shoot ing followed a direct and unprovoked assault with lathis end possibly other weapons, e.g., ballams upon the two accused persons with the object of committing robbery. On that view of the matter, the appellant Syed Ali Imam must be held fully entitled to act in the way he did, namely, to use his gun for the purpose of protection of the lives and properties of himself and his companion Anwarul Haq against attempted robbery by violence. We accord ingly allow this appeal and acquit Syed Ali Imam.

K. B. A. /A. H.

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