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Criminal Appeal Nos. 23 and 24 of 1960, decided on 23rd May 1960, (Judgment announced at Dacca.)
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 2nd September 1959 in Criminal Appeal No. 193 of 1959).
Granted where whole evidence required to be re-examined, specially in relation to accused's plea of self-defence raised in trial Court-Constitution of Pakistan (1956), Art. 160.
-Detention of A by police amounting to illegal confinement--A slipping away-Police pursuing to catch A, who resists-Police resorting to violence to meet A's resistance-No right of self-defence available to police-Penal Code (XLY of 1860), Ss. 99 & 100.
-Death, according to medical evidence, instantly Feroz Khan following gunshot injury, caused by S-A inflicting hatchet injuries post-mortem-A commits no offence.
Karam Elahi Chauhan, Advocate Supreme Court, instructed by Siddique & Company, Attorneys for Appellants.
Dates of hearing : 28th April 1960 and 5th May 1960.
S. A. RAHMAN, J.-Feroz Khan, A. S. I., Sachal Head Constable, and Ali Nawaz and Ahmad Shah two Constables were tried jointly for murder, attempted murder or for abetment of thes a two offences. The trial Judge convicted Feroz Khan under sections 307 and 326 read with section 109, Pakistan Penal Code and sentenced him to three years' rigorous imprisonment and seven years' rigorous imprisonment, respectively, on the two charges. Ahmad Shah was sentenced under section 307, Pakistan Penal Code, only to three years' rigorous imprisonment. Ali Nawaz and Sachal received death sentences for the offence of murder. The convicts, except for Ahmad Shah, appealed to the High Court of West Pakistan but the appeal was dismissed. Two petitions for special leave to appeal by Ali Nawaz, Sachal and Feroz Khan were granted by this Court as it was held that the A whole evidence in the case required to be re-examined specially in relation to the plea of self-defence raised by the accused persons in the trial Court.
The incident was a sequel to a report lodged at Police Station Warah by Shafi Muhammad (P. W. 3) of village Adho Lashari on the 28th of January 1958, in which he alleged that four culprits had tried to commit a theft at his house by night, but had left after firing a pistol which injured one Ghulam Muhammad, his guest. Feroz Khan accompanied by the other accused persons proceeded to the village of Shafi Muhammad for investigation of that report. According to the prosecution, Niaz Muhammad P. W. who is a respectable Zamindar of that village, called on the A. S. I. with his two sons, Ali Gohar and Sabzali, in accordance with the village custom. The A. S. I. demanded some money from him by way of mehmani. Niaz Muhammad excused himself by representing that the previous years had not been very profitable for him either in respect of his agricultural operations or his business which he was running in the shape of a factory. Sachal on this abused Niaz Muhammad and his sons and exception was taken to his conduct by Ali Gohar. This infuriated Sacbal who roughly handled Ali Gohar. The latter pushed him back in return. The policemen then. Placed Ali Gohar under illegal arrest, while Niaz Muhammad and his son Sabzali were told to go away. Somewhat late in the evening,
Ali Gohar succeeded in regaining his liberty on the promise that he would go and fetch money. Instead of going to his house, however, he took shelter in the near-by jungle. After waiting for some time, Sachal and Ali Nawaz issued out in search of him. They went to th-. autak of Niaz Muhammad and called out the inmates. At that moment, Muhammad Siddiq P. W. the village sowkjdar, arrived there with his gun. Sachal took hold of the firearm from him. Abdullah ana munammau oaiou r.
deceased came out of Niaz Muhammad's autak.
The two policemen asked Sabzali to surrender Ali Gohar. The deceased told them that they had left Ali Gohar with the policemen and he had not come home. Ali Nawaz began abusing Sabzali who protested. On this, Ali Nawaz was said to have attacked him with his hatchet. Sabzali averted the blow, grappled with Ali Nawaz and felled him to the ground. This struggle was going on when Feroz Khan and Ahmad Shah also arrived at the scene. On the instigation of Feroz Khan, Sachal fired at Sabzali from a close range. The latter fell down and died.
Just before the A. S. I's inciting words were uttered, Sabzali had released Ali Nawaz from his grip. As soon as Sabzali fell down, Ali Nawaz struck him two blows with his hatchet.' Ahmad Shah also started firing with his rifle. Umar, who had been attracted to the scene, was injured and fell down in consequence. Niaz Muhammad and Ali Gohar, heard the tumult and came to the spot. At this moment, the policemen left the scene of offence and went back to the autak of Shafi Muhammad. They then departed from the village.
Niaz Muhammad had the dead body of his son carried to the hospital at W arch. He then went to the police station to lodge his report. Ghulam Muhammad, Head Constable, took this thumb-mark on a paper, but whatever report was recorded
was not read over to him. The old man was kept in police custody for a fortnight and ultimately released. On the day following his release, he lodged a complaint with the District Magistrate, Larkana, on which the accused persons were summoned and proceedings started against them.
On the night of the occurrence itself, at 4 a.m. a report had been recorded, at the instance of Ali Nawaz, at the police station, in which a different version was given. After setting out that the police party had gone to village Adho Lashari to investigate the report of Shafi Muhammad, it was stated that the suspects were called in that case, including Ali Gohar, son of Niaz Muhammad. It was alleged that Ali Gohar confessed his guilt before nekmards and subsequently to the A. S. I. and he was therefore, detained in custody, under the charge of Ali Nawaz. At 11-30 p.m. Ali Gohar, slipped away. Ali Nawaz followed him raising cries, in order to catch him.He had left his Government rifle behind while issuing out in haste. At a distance of about 150 paces, he overtook Ali Gohar who grappled with him. The alarm raised by Ali Gohar brought 12 persons, including Sabzali deceased, Niaz Muhammad his father, and others to the spot. Shabzali and Ghulam Shah out of them carried guns and the rest were armed with hatchets and lathis.
Nawaz Muhammad incited his companions to attack the policemen on the ground that they had caught their man without just cause. The companions of Niaz Muhammad, except for Sabazali and Ghulam Shah, started attacking Ali Nawaz with their weapons. Ahmad Shah warned those persons not to assault a policeman. Sabazali and Ghulam Shah began firing their guns and Sabazali's shot actually hit Ali Nawaz on the left leg. Ahmad Shah who had his Government rifle, at this juncture, fired in mounted constable, also arrived there. The villagers then retired. In the report it was said that Ali Nawaz had no knowledge whether Ahmad Shah's shot had hit any person or not.
The story, as given in Ali Nawaz's report, was adhered to by the accused persons at the trial. No attempt was, however, made to substantiate it by calling any evidence in defence.
The autopsy on the dead body of Sabzali revealed a circular gunshot wound on the right intercostal arch, 1J" in diameter and through it the peritoneum had pretruded. He also had an incised wound on the right side of the face from the nose to the neck, under which the skin muscles and bones of the right maxilla and mandible bone were found cut and another incised wound on the left side of the neck, measuring 5" x 1" x 3/4",, beside an abrasion. The seventh to ninth ribs on the right side of the chest were fractured, the stomach was ruptured, liver smashed and spleen punctured at several places under the first wound. Two pellets were removed from the spleen. The doctor was of the opinion that the first injury was caused by a gunshot and the incised injuries with a sharp-edged weapon like a hatchet. He further expressed the view that the man must have died instantaneously on receiving the gunshot wound and that the incised wounds were post-mortem as there was no bleeding from them. Umar P. W. on examination, was found to bear a gunshot wound 3/4" x 1 /4", muscle deep on the left ear.
The same doctor also examined Ali Nawaz accused and found some 16 injuries on his person, which included some contusions of a considerable size, four contused wounds on the head and two contused lacerated wounds on the left thigh and the right buttock. This accused was further examined by another doctor who confirmed the result of this earlier examination. Apparently no gunshot injury was discovered on the person of Ali Nawaz. The injuries of Ali Nawaz could have been caused with a blunt weapon, like a lathi.
Ocular evidence of what took place at the time that Sabzali was shot dead, was given at the trial by Muhammad Siddiq (P. W. 6), Abdullah (P. W. 7), Muhammad Saleh (P. W. 8) and Umar (P. W. 9). They fully supported the prosecution story and their testimony was accepted as trustworthy by both the Courts below. The trial Judge as well as the High Court further found that the story of Ali Gohar being detained in a theft case was a fabrication and that he had been illegally detained by the police when he and his father refused to give mehmani to them. The evidence of motive was furnished by Shafi Muhammad (P. W. 3), Ali Gohar (P. W. 4) and Niaz Muhammad (P. W. 5). Their statements were regarded as providing enough corroboration of the eyewitnesses' account. It appears that the police had started a counter-case against Niaz Muhammad and others on the report of Ali Nawaz, but the suggestion that the P. Ws. in the present case had deposed falsely in order to meet the counter-case was rejected as untenable, by both the Courts below. The plea of self-defence taken by the accused persons was also negatived.
It appears that the trial Judge had doubted the statement of the debtor that the incised injuries found on the person of Sabzali
Agree with this oPinion of the trial Judge and held that there was no divergence between the testimony of the doctor and the evidence of the eyewitnesses. The learne9 Judges accepted the doctor's statement that Sabzali must have died on receipt of the gunshot injury an,i that the hatchet injuries caused to him by Ali Nawaz were, tire-efore, legitimately described as post-mortem injuries. It was obs,rved at the same brae that u;ey were unable to under stand why the trial Judge has acquitted Feroz Khan of the charge under secJon 302 read with section 109, Pakistan Penal Code in respect of Sabzali's murder and had convicted him instead under section 326 read with section 109, Pakistan Penal Code.
The learned Judges pointed out that the judgment of the trial Court was inconsistent, on this point in the face of the finding that Sabzzli had been fired at by Sachal at the instigation of Feroz Khan. As, however, the acquittal of Feroz Khan on the murder charge had not been challenged on behalf of the State by on appeal, the learned Judges felt they were helpless in the matter ar:d contented themselves by dismissing the appeal of Feroz Khan
The first question that arises for consideration is whether Ali Gohar's detention by the police was referable to his position as a suspect in the theft case or represented an act of high-handedness on the part of the accused persons. After going through the evidence on the record, we have no hesitation in agreeing with the concurrent finding of the Courts below that there was no legitimate ground for treating Ali Gohar as a suspect in the case and that t he allegations of the prosecution witnesses as regards the circumstances of his detention were substantially correct. In this connection, it is significant that the police did not take any action against Ali Goliar after they had departed from the village. The report made at the police station by Shafi Muhammad clearly militates against Ali Gol, ar being one of the four persons who had visited his house for the purpose of theft. Shafi Muhammad had explicitly recited in his report that they had not identified the culprits bwt had seen their faces and would
be able to recognise them if they came across them again.This would obviously rule out Ali Geohar, who is a fellow-villager of Shafi Muhammad and well knowu to him. The evidence given by Shad Muhammad also bears out the version of Niaz Muhammad and his son Ali Gohar anal beyond the fact that he was also a Lashari like Niaz Muhammad, there is nothing on the record to show that he was in any way connected with the complainants' party. He would have been the last man to favour the complainants' party as against the police who had come to investigate his theft report. There is thus no escape from the conclusion that the detention of Ali Gohar by the police amounted to his illegal confinement and even if he ;slipped a',very from that custody the police had absolutely no right to pursue him in order to catch hold of him. If any one of them did so, was resisted and then resorted to violence to meet that resistance, the plea of self-defence would not be available to him in the circumstances.
We next come to the details of the transaction in which Sabzali lost his life. At the initial stage, it was unanimously stated by tithe P. Ws. that only Ali Nawaz and Sachal,
out of the policemen, confronted Sabzali and others. We have also no reason to doubt that Sachal had armed himself with the gun which Muhammad Siddiq Chowkidar had with him in connection- with his watch and ward duty. Shafi Muhammad had deposed that when the police were leaving the village, he had taken the gun from them and later returned it to Muhammad Siddiq. The injuries to Ali Nawaz are attempted to be explained by the P. Ws. by the allegation of grappling that Sabzali had with him. We are not satisfied that this was a wholly true expianation. The nature of some of Ali Nawaz's injuries would seem to suggest that he had received a beating with some weapon like a lathi. To this extent, the eyewitnesses' statements appear to have minimised the part played by Sabzali and his companions. Muhammad Siddiq is a cousin of Niaz Muhammad, while Abdullah, Muhammad Saleh and Umar are all his nephews. It is not, therefore, unlikely that they might have been persuaded to water down their statements as regards the attack on Ali Nawdz by Sabzali. It stands to reason that Sabzali must have been incensed by the unreasonable conduct of Ali Nawaz. The latter might even have tried to roughly handle Sabzali while asking him to produce leis brother, Ali Gohar, and thus invited trouble for himself. The complainants' party probably, did not want to own up that Ali Nawaz had been hit with a lathi or any such weapon because of a motion that they might have to s:rffer for attacking a policeman. Despite this infirmity in the evidence of the P. Ws., we see no rea,on to doubt that it was Sachal who fired at Sabzali and killed itim at the spot. If Sabzali had been injured with shots fired by Ahmad Shah, as the defence story tried to make out, there is no reason why tire P. Ws. should have substituted Ahmad Shah by S
The witnesses had been unanimous in saying that it was the A. S. I. who had instructed Sachal to fire at the deceased. It is admitted that the A. S. I. carried a pistol. It is then difficult to undcrstartd why the A. S. I. could not have used his own pistol i;lstead of calling upon iris subordinates to fire with a gun at Sabzrrli. The exact words of the incitement are also not specified by any of the witnesses. The fact mereover cannot be lost sight of that the details of the prosecution version saw the light of day several days after the murder in the shape of a complaint by Niaz Muhammad. It
appears to be true that Niaz Muhammad had been detained at the police station for the intervening days and that an attempt was apparently made on the day following the occurrence to cook up a story on behalf of the police, in the shape of a report, purporting to have been given by Niaz Muhammad. That report, however, contained intrinsic evidence indicating that the A. S. I. was attempting to exculpate himself from the whole affair. If that report is to be accepted as correct, Niaz Muhammad had admitted in it that his son was called as a suspect in the theft case. We have given our reasons above for holding that this could not be true. In the circumstances, the attribution of this statement to Niaz Muhammad in that report is tell-tale evidence of manipulation of what he might have told the police, to suit their own purpose. Yet it is not beyond the bounds of probability that the A. S. 1. was sought to be involved in this case by assigning to him the instigating about, because the P. Ws., might have been afraid that if left out, he might help his subordinates. It is also possible that the maltreatment of the complainant at the Police Station, where he was illegally detained for a fortnight, might have turned him against the Assistant Sub-Inspector. Considering all the circumstances of the case and the relationship of the eyewitnesses inter se,
we are disposed to take the view that the allegation of instigation against the A. S. I. is open to doubt. Sachal and Ahmad Shah were quite capable of taking the initiative themselves in the situation that had developed at the spot, seeing that both of them were armed. We, therefore, consider that the benefit of the doubt should go to the A. S. I., Feroz Khan in this affair. In all probability he was present at the spot at the relevant time but the fatal shot was fired by Sachal without his abetment. It is to be remembered that Sachal had been in an aggressive mood from the very start, in the incident whith Ali Gohar also.
Coming next to the case of Ali Nawaz, we find that although the learned Judges of the High Court accepted the doctor's testimony that the incised injuries inflicted on the deceased were post-mortem, they failed to advert to the legal consequences of that finding. If Ali Nawaz struck two hatchet blows to Sabzali c after he had died, it could not be said that he had coutmitted any offence, falling within the purview of section 302, Pakistan Penal Code. He had merely struck a dead man. On this view, no offence has been brought home to Ali Nawaz.
Ahmad Shah was apparently content with his conviction and sentence and had not cared to join the others in the appeal to the High Court. His case is not before us.
The part assigned to Sachal, however, is amply established on the record and we consider that his conviction on the charge of murder is not open to any exception.
The upshot of the whole discussion is that Ali Nawaz and Feroz Khan's appeals should be allowed and they should be acquitted of the charges recorded against them in the Courts below. We direct accordingly and order their release forthwith. The appeal of Sachal is dismissed.
A.H. Order accordingly.
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