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Criminal Appeal No. 149 of 1962, decided on 26th November 1962.
, S. 375 read with S. 374‑Further inquiry or additional evidence‑High Court com petent to order while hearing appeal‑Appellant or his counsel has no statutory right to apply that Court may proceed under S. 375.
‑Interested witness‑One who has motive for falsely implicating accused.
Nazir and others v. The State P L D 1962 S C 269 foll.
Niaz v. State P L D 1956 S C (Pak.) 387 ref.
‑Extra judicial confession corroborated by other evidence‑Can be taken into consideration in convicting accused.
Qutba v. Crown P L D 1954 F C 197 rel.
Muhammad Ismail Bhati for Appellant.
Ghazanfar Ali Shah, A. A. G. for Respondent.
Date of hearing : 20th November, 1962.
---‑Fazal Rahim (56), son of Abdul Hanan, of village Bahara. Police. Station Prang, was con victed under section 302, P. P. C., and sentenced to death. He has appealed. Reference confirmation of the death sentence is also before us. This judgment will dispose of the appeal and the reference both.
2. The appellant was tried for the murder of Syed Amir Khisro Badshah (58), son of Syed Muhammad Ismail, his co- villager, by firing at him with a tamancha on the path lying between his own Arhat and the joint Arhat of the appellant and his two brothers, (out of which the deceased had purchased one‑third share of one of the appellant's brothers), on the 8th of April 1962, at about 8 a.m.
3. The prosecution case is as follows :‑
Fazal Rahim appellant had two brothers. One of them was Nasar by name. He was suspected to be not a man of normal intellectual faculties, if not a lunatic. The deceased had purchased the share of Nasar out of his Arhat as well as out of his residential house. He purchase the share of his Arhat by the registered sale‑deed, dated the 25th of February 1960 (copy Exh. P. R.) and his share in the house, by an unregistered sale- deed (copy Exh. P. R/1). Besides this, Sherin Khisro (P. W. 8), the brother of the deceased had attempted at the life of the appellant seven years back, and he was convicted under section 307, P. P. C., and sentenced to seven years' rigorous imprisonment. The deceased took possession of the share of the house purchased by him from Nasar, and included it in his adjoining house, and constructed a wall towards the house of the appellant. The appellant made a complaint (attested copy Exh. P. J), under sections 430/428, P. P. C. against the ceased, but it was dismissed, by the local Magistrate some time before the occur rence. On account of these happenings the appellant was nursing grudge against the deceased.
4. On the 8th of April 1962, at morning time, Amir Khisro deceased left his house in the village, in the company of his servant, Ibrahim (P. W. 5) and went to his Arhat known as "Kharmatai". This Arhat is situated at a distance of about three furlongs from the village abadi. He had given this Arhat on lease to Fazal Mahmud (P. W. 6). Muhammad Saeed (P. W. 7), a labourer of Fazal Mahmud, was plucking tops from the tobacco crop in the lands of the Arhat at that time. After visiting his own Arhat, the deceased, accompanied by Ibrahim and Fazal Mahmud P. Ws., proceeded to the Arhat, of Abdul Hanan appellant's father. The land of this Arhat including the share which the deceased had purchased from Nasar was also in possession of a lessee. He had gone there simply to look after the lands of the Arhat when he reached near the Arhat of the father of the appellant, the appellant was sitting on the ground in the way, armed with a tamancha. The deceased, on seeing him, stopped, as he suspected foul play, and the accused challenged him not to stop as he was waiting for him. The appellant paced forward and fired four shots in quick succession at the deceased, who got hit with all the shots, and dropped down on the ground. Ibrahim, the servant of the deceased, and Fazal Mahmud, his lessee ran away to save their own skin. The appellant, after committing the murder of the deceased, ran away towards village Prang. Before he reached village Prang he had disposed of the pistol. He came to the Hujra of Abdul Ali (P. W. 3) and Abdul Hanan (P. W. 2), and told them that he had shot dead Amir Khisro deceased, and he was being chased by the people. He begged for their protection and asked them to give him refuge. They allowed him to take shelter in the kotha of the Hujra. The appellant entered the kotha and chained it from inside. Abdul All and Abdul Hanan chained the kotha from outside. Abdul All (P. kV. 3) went to his house, situated close to the Hujra and in formed Ajab Khan (P. W. 4), his brother, about it. Abdul Hanan (P. W. 2), accompanied by Ajab Khan, went to the Police Station lying at a short distance from their hujra in the same village Abdul Hanan made the first information report there. In this tire information report Abdul Hanan had mentioned how the appellant had come in front of their hujra tend confessed that he had murde1 ed Amir Khisro deceased by firing shots at him with a pistol, and had also begged of them for refuge. He also stated in this first information report that the appellant was given protection in th kotha of the hujra, and he chained the door from inside, while he and his brother Abdul Ali P. W. chained the door from outside, and the appellant was thus confined in the kotha of the hujra. After recording the report, Fateh Muhammad Khan, S. I. (P. W. 11), came out of the Police Station, in the company of Ajab Khan and Abdul Hanan P. Ws., for going to the spot, when he was met by Ibrahim and Fazal Mahmud P. Ws., who were or their way to the Police Station, for making report of the occurrence. On seeing that Ibrahim and Fazal Mahmud had come for report, Fateh Muhammad Khan, S. I. informed them that he had already received the information about the murder it question and had registered a case against the accused. All of them then went straight to the hujra of Ajab Khan (P. W. 4) to find it chained from outside, as well as from inside Fateh Muhammad Khan, S. I. got the door of the kotha of the nujra opened and effected the arrest of the appellant.
5. After the appellant left the spot, Ibrahim and Fazal Mahmud P. Ws. returned to find Amir Khisro lying dead there. Ibrahim P. W., however, recovered an empty shell of 32 bore pistol (Exh. P.1). He handed it over to Fateh Muhammad Khar. S. I. when he met him outside the Police Station. Ibrahim and Fazal Mahmud led the Sub‑Inspector to the spot. The Sub -Inspector found the dead body of the deceased lying there. He prepared the injury statement and the inquest report, and sent the dead body to the mortuary for post mortem examination.
6. During the autopsy the following external injuries were found on the dead body of the deceased :‑
(1) A firearm entrance wound, " x ", on the posterior side of the left lower leg, in the middle.
(2) A firearm exit wound, " x ", on the medial side of the left lower leg, in the middle.
(3) A firearm entrance wound, " x ", on the medial side of the left upper arm, in the upper one‑third.
(4) A firearm exit wound, " x ", on the outer side of the left upper arm, in the upper one‑third.
(5) A firearm exit wound, " x ", on the left side of the abdomen.
(6) A firearm wound, " x " (entrance) on the, left side of back, in the Inmber region.
(7) A firearm wound, " x " (entrance) on the right side of back, in the lumber region.
The doctor recovered one bullet (Exh. P. 23) from the dead body of the deceased and handed it over to the police along with the shirt, shalwar, jacket and five pieces of kidney stones (Exh. P. 24).
On internal examination, the lumber region, vertebra, lumber region spinal cord, blood vessels, abdominal walls, peritoneum, large and small intestines, and right and left kidneys were all found to be injured. The death was due to shock and haemorrhage as a result of the injuries to the vital organs mentioned above.
7. It may be mentioned here that neither the Public Prosecutor, nor the defence counsel, nor the Additional Sessions Judge, had cared to inquire from the doctor as to which of the injuries were normally dangerous to life. It was due to this omis sion that the learned counsel for the appellant had spent such of the time in arguing at length on this point. We are, however, clear in our mind that injuries 6 and 7 were the cause of the rupture of the internal vital organs which caused the death of the deceased.
8. The appellant pleaded not guilty in the committing Court. When asked if he was recovered from the kotha of the hujra of Abdul Ali Khan after the occurrences, and the Police had arrested him from that place, he replied that he would make a detailed statement in the Court of Sessions. He again pleaded not guilty at the trial. When he was again asked there if he was recovered by the Police from the hujra of Abdul Ali and Ajab Khan, where he had taken refuge, he replied that he knew nothing of the occurrence, and Abdul Ali and his companion had by force caught hold of him, and confined him in the Kotha of the hujra, saying that he had murdered Amir Khisro. He denied having made the extra judicial confession before Abdul Ali and Abdul Hanan P. Ws. and said that Abdul Ali, Abdul Hanan and Ajab Khan P. Ws. were on friendly terms with the deceased's family, and therefore, they had given false evidence against him. He admitted to have made a complaint under section 430, P. P. C. against the deceased, but said that the matter was compromised by the Tehsildar. He added that he was a malang and he was in the habit of begging in the Ilaqa. He produced no defence.
9. Before we proceed further, it is necessary to mention here that Mr; Muhammad Ismail Bhatti, counsel for the appellant, submitted an application that although Abdul Ali and Ajab Khan were found to be disinterested witnesses, as the defence had failed to prove that either they were on inimical terms with the appel lant, or were friendly with the family of the deceased, Where is documentary evidence that the father of the appellant had litigation with the relatives of these witnesses, and therefore, in the interest of justice, further inquiry may be held under section 375, Cr. P. C. to determine whether these witnesses were disinterested or not. With this application he filed the affidavit of Syed Muhammad Fasih, son of Lal Badshah, and also the certified copies of the judgment of the Court of the Honourable Judicial Commissioner, N: W. F. P. dated the 18th of September 1948 passed in Civil Revision Petition No. 14/1948, a certified copy of the judgment of the Court of the Honourable Judicial Commissioner N.‑W. F. P. passed in Civil Appeal No. 9/8 of 1948, and a certi fied copy of an order, passed under sections 145/107, Cr. P. C. by Mr. A. G. Dhawan, Magistrate First Class, Charsadda, dated the 3rd of March 1941. By producing the copies of these judgments supported by the affidavit, counsel wanted to prove that Abdul Ali and Ajab Khan P. Ws. were inimical towards the appellant and his family, as Mohsin Khan, their father, had a litigation with Lal Badshah and Hanif, the latter being the husband of the sister of the appellant, and the former the husband of his paternal aunt. Subsection (1) of section 375, Cr. P. Code provides :‑
If when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken, bearing upon, any point upon the guilt or in nocence of the convicted persons, it may make such inquiry, or take such evidence itself, or direct it to be made, or taken by the Court itself.
This section occurs in Chapter XXVII, relating to submission of sentences for confirmation. It is at the time of the consideration of the sentence of death, when the High Court may take action under this section. When a condemned prisoner prefers an appeal, he or his counsel has got no statutory right to make an application that the Court may proceed under this section. The application made by the counsel for the appellant is, therefore, not competent. Since the reference under section 374, Cr. P. C. is being consider ed along with the appeal, therefore, we are quite competent to direct that further inquiry should be made or additional evidence to produced. In this particular case, we do not consider such a course to be necessary. The reasons for this view will be found in the discussion of this case in its various aspects, which we pro pose to make hereafter. We, therefore, dismissed this application, and we have told the counsel for the appellant that we do not consider it a fit case for further inquiry or for taking additional evidence.
10. The conviction in this case is based on the statements of the eye‑witnesses, namely, Ibrahim (P. W. 5) and Fazal Mabmud (P. W. 6), the extra‑judicial confession of the appellant made in the presence of Abdul Ali (P. W. 3), and Abdul Hanan (P. W. 2), the recovery of the crime shell of '32 bore pistol from the spot, the recovery of 32 bore bullet from the dead body of the deceased, the number of injuries found present on the dead body of the deceased and the appellant having been found under arrest in the hujra. No doubt the learned Additional Sessions Judge in para graph 8 of his judgment had remarked that Ibrahim and Fazal Mahmud are not disinterested witnesses, but we regret we cannot agree with him in this respect. The phrase "interested witness" has been defined in the pronouncements of their Lordships of the Supreme Court in case Nazir and others v. State (P L D 1962 S C 269). It is laid down therein that an "interested witness" is "one who has a B motive for falsely implicating an accused person". A similar view has been expressed with respect to the phrase "interested witness" in Niaz v.. State (P L D 1956 S C (Pak.) 387). It is, therefore, to be seen whether Ibrahim and Fazal Mahmud P. Ws. are "interested witnesses" as defined in these pronouncements. Ibrahim (P. W. 5) is a servant of the deceased. 7 here is nothing on the record to show that Ibrahim personally had any motive or reason for falsely implicat ing the appellant. The motive given for the appellant having committed this offence is such that the appellant was aggrieved on account of the treatment the deceased had meted out to him and his family in purchasing the share of the land and house of Nasar without their consent, as well as, in including the house of Nasar by erecting a boundary wall towards the house of the appel lant and the deceased's brother having attempted at the life of the appellant. The motive cited in this case is one for the appellant to kill the deceased, and not for the relatives and other persons con nected with the latter to implicate the former falsely. The deceased or his family could have no motive for falsely implicating the appellant, if in fact, he was not guilty. Similarly, Fazal Mahmud (P. W. 6) is a mere lessee of the Arhat of the deceased. He was only connected with the deceased in having taken his land on lease, for which he had paid the rent. This connection would not, by any stretch of the imagination, be considered to have given him a motive for falsely implicating the appellant. The occurrence took place in broad daylight in the thoroughfare about 3 furlongs from the village abadi. It is in evidence that besides these prosecution witnesses, a number of other persons, were working in that area. The identity of the person, therefore, who had done the deceased to death by firing no less than four shots, could not remain in secrecy at all. When the identity of the culprit is known, it would be inconceivable that he should be allowed to go scot‑free, while someone else, who was not guilty at all, should have been falsely implicated in his, place. It is now well‑settled, that in such circumstances the party who alleges substitution of the appellant for the real culprit must lay founda tion for it. No attempt has been made to lay the required foundation. In our view, therefore, the ocular evidence of Ibrahim and Fazal Mahmud P. Ws. is sufficient per se to connect the appellant with the offence. Besides this, their statements are corroborated by independent evidence. Both of them have stated that the appellant had fired four shots with a pistol. Four, entrance and three exit wounds were found present on the dead body of the deceased, and the bullet of the fourth shot was reco vered from it. An empty shell of 32 bore was found lying at the spot and handed over to the Police immediately when Ibrahim met the Sub‑Inspector. The bullet recovered from the dead body of the deceased was seen by us in Court, and is the bullet of 32 bore. The number of shots stated by the eye‑witnesses to have been fired by the appellant, thus finds support from the medical evidence. The recovery of the empty shell from the spot and the bullet from the dead body established the fact that these two eye‑witnesses were present at the spot, and had witnessed the occurrence. Their statements are further corroborated by the appellant having been found under confinement the hujra of Abdul Ali and Abdul Hanan P. Ws. Why the appellant should have been confined in that hujra is a circumstance which the appellant had not explained in the committing Court, although specifically questioned about it, and his belated explanation at the trial also carries no conviction. It is to be remembered that the appellant is a man of property and belongs to a family which is not without an influence in the village. It was, therefore, not possible for Abdul Ali and Abdul Hanan to have effected his arrest and forcibly confined him in the hujra when in fact he had not gone there and sought refuge. It is a matter of common knowledge that when such a heinous offence like the murder has been committed in the region of the old North‑West Frontier Province, a legal duty had been cast, by the Frontier Crimes Regulation, on the inhabitants of the surrounding area, to go in chase of the culprit with a view to effect his arrest, and if he resisted, the law empowered the persons to shoot at him. The appellant apprehended that after having committed the murder in the open, in broad daylight, the pursuit party might be following him, to effect his arrest or to shoot him dead. It was for this reason that he took refuge in the hujra of Abdul Ali and Abdul Hanan P. Ws. It is quite natural that before he had begged for refuge, he should have also disclosed to the persons whose protection he was seeking, as to why he was seeking refuge in their hujra. It was for this reason that he had to confess his guilt in their presence. No doubt an extra‑judicial confession, by itself, is not sufficient to justify conviction, as has been held in Qutba v. Crown (P L D 1954 F C 197). In the instant case, however, the conviction is not based merely on the extra‑judicial confession of the appellant. It is based on other evidence also serves as a corroboration of the extra‑judicial confession, and the other evidence also serves as a corroboration of the extra‑judicial confession in this case. The appellant had alienated his one third share of the landed property in favour of his wife by an unregistered dower deed, dated the 18th of February 1962, about 2 months before the occurrence, as stated by Nawab Khan Patwari P. W. 9. This indicates that he had alienated the property long after the marriage to save it from confiscation, if he murdered the deceased. It is a circumstance which goes to show, how the mind of the appellant was working in preparation for the murder of the deceased since the last about two months.
11. Counsel for the appellant raised the following five points.
(1) There was no eye‑witness present when the occurrence took place.
(2) Even if there were eye‑witnesses, they were interested, and their evidence required corroboration.
(3) Evidence of extra‑judicial confession required independent corroboration.
(4) If it is found that the accused was responsible for killing the deceased, then it was done in a sudden altercation, and
(5) That the appellant had killed the deceased in self-defense.
12. We have already discussed points 1, 2 and 3 and there fore, we need not further discuss them. The evidence with respect to the appellant having murdered the deceased in a sudden fight is not convincing. When once it is proved that Ibrahim (P. W. 5) and Fazal Mahmud (P. W. 6) are disinterested witnesses, and they had no motive for falsely implicating the appellant, then their entire testimony deserves to be relied upon. From their statements it is established beyond any shadow of doubt that the appellant was sitting in wait for the deceased, and committed his cold‑blooded murder, by firing no less than four shots at him. The same is true in the case of the theory of self‑defence. Fazal Mahmud P. W. admitted that the appellant was erecting but of straw in his arhat. Counsel for appellant contended that the deceased was going there for preventing the appellant from making the but and hence the appellant was provoked. There is no evidence that the appellant was erecting the but on a part of the joint land or the joint land or the part of the land in possession of the deceased, and therefore, the latter was compelled to prevent him from doing so. If in fact the deceased had asked the appellant not to construct the hut, this cannot, by any stretch of imagination would have given the appellant grave and sudden provocation. The appellant has also not pleaded it in his statement, nor it is borne out from the prosecution evidence in any manner. Point No. 4 of the appellant's counsel is, therefore, not of any substance.
13. It is further suggested by the learned counsel for the appel lant that the deceased and his companions had fired at the appellant and he had the miraculous escape and the appellant fired in self-defense, as a result of which the deceased got killed. The firing by the deceased and his companions has not been borne out by any evidence at all. It was neither pleaded by the appellant in his statement at the trial. Point No. 5 also stands unproved.
14. For the aforesaid reasons, we consider that the prose cution has succeeded in proving the charge of murder against the applicant. The conviction of the appellant under section 302, P. P. C. is upheld. The sentence, in the circumstances of the case, is also not inappropriate. The appeal is dismissed. The death sentence is confirmed.
K. B. A. Appeal dismissed.
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