SHAMEEM HUSSAIN KADRI, J.--Appellant Muhammad Shard was condemned to death by the Additional Sessions Judge, Multan, by his order dated 5th July 1969 for causing the death of one Khushi Muhammad. His appeal against his conviction and sentence and reference for confirmation of his death sentence under section 374, Cr. P. C. are before us. Both of them are being disposed of by this order.
2. On 30th July 1968 at about 3 p.m. Khushi Muhammad deceased was confronted by the appellant in Bazar Choori Sarai. Muhammad Sharif gave a lalkara and thrust the knife, which he was holding in his hand, into the neck of the deceased. On receiving the injury the deceased turned towards West from where he was coming. The appellant is alleged to have followed him a few steps. The deceased fell a few yards away from the place of occurrence and died. The appellant made good his escape. The matter was reported by Abdul Hamid (P. W. 11) at Police Station Kup situate at a distance of two furlongs from the place of occurrence at 3-30 p.m. The same day F. I. R. S. H. (Exh. P. B.) was recorded by Moharrir Head Constable Abdul Hamid (P. W. 3).
3. Dr. M. S. Faridi (P. W. 1) Medical Superintendent, Civil Hospital, Multan, performed autopsy on the dead body of Khushi Muhammad. He found a stab wound on the right side of his neck and two abrasions, one under the left shoulder and the other on the left side of the face. The knife injury according to the doctor was sufficient in the ordinary course of nature to cause death. According to him death took place immediately after the knife blow.
4. Muhammad Shah Feroze (P. W. 8), who at the relevant time was posted as Additional S. H. 0.
Police Station Kup, took along with him Muhammad Sharif (P. W. 6) and Sultan (P. W. 7) and proceeded to Dera Adda in order to apprehend the appellant since he had the information that the appellant was likely to leave for Muzaffargarh. He checked the lorries bound for Muzaffargarh from 4 to 7 p.m. and thereafter all of them proceeded to Aziz Hotel at 9 or 10 p.m. They found the appellant in a lorry which was proceeding towards Muzaffargarh. The lorry was stopped in front of the Hotel. The appellant was arrested and his shirt (Exh. P. 7) and chaddar (Exh. P. 8), which were found to be blood-stained, were taken into possession vide memo. Exh. P. E.
5. Maqbool Elahi Cheema (P. W. 16), Station House Officer ,Police Station Kup recovered knife (Exh. P.
1) at the instance of the appellant on 2nd August 1968. The knife was taken into possession vide memo. Exh. P. D. which was attested by Muhammad Akram (P. W. 9) and Abdul Hamid (P. W. 11). It is alleged that the appellant told the Investigating Officer that he had thrown the knife in Pul Watta Moria. The accused led to this place and recovery was made. All the articles including the earth, taken into possession from the spot, were sent to the Chemical Examiner and the Serologist. The report of the Chemical Examiner (Exh. P. K.) disclosed that there was blood on them while the serologist opined that all the Articles were besmeared with human blood. This report is Exh. P. L.
6. Learned Additional Sessions Judge has held that both the witnesses of recovery of clothes of the appellant, namely, Muhammad Sharif (P. W. 8) and Sultan (P. W. 7) were stock witnesses of the police. He disbelieved them and Muhammad Shah Feroze (P. W. 8) about their pursuit for the search of the appellant in the lorries. The learned Additional Sessions Judge also disbelieved the recovery of knife (Exh. P 1). Muhammad Akram (P. W. 9) contradicted Maqbool Elahi Cheema Investigatin Officer, who stated that he took both the witnesses from the place of occurrence while Muhammad Akram stated that he was passing in front of the Police Station Kup when the appellant and S. I. came out of the police station. He was asked by Abdul Aziz to accompany them to effect recovery of knife. Abdul Hamid (P. W. 11) completely denied to have attested the recovery.
He said that the knife was shown to him in the police station by the Investigating Officer and he was asked to identify the same as the weapon of offence used by the appellant.
7. At the trial Mst. Hamidan step-mother of the appellant (P. W. 10) and Abdul Ghafoor (P. W. 15) his father, deposed about the motive for the crime. Mst. Hamidan stated that she married Abdul Ghafoor after the death of his first wife Mst. Sheedan. Khushi Muhammad deceased was her brother. They used to live at Burewala. About 8/9 years ago after her marriage with Abdul Ghafoor his deceased brother also came to Multan and took up residence with her. Her husband was running a fuel wood stall. Khushi Muhammad invested some money and joined the business of her husband. According to her the appellant used to threaten her and her brother that if he was not given money he will finish them. In her view the appellant was a loafer who occasionally lived away from the house. A day prior to the occurrence at about Maghrib prayer time the appellant demanded money from her brother who refused to fulfil his demand. The appellant again told him that he will finish him. Abdul Ghafoor (P. W. 15) father of the appellant gave little different version.
He stated that his son squandered away the money which he gave to him for setting up in the first place a meat shop and then a milk shop. The appellant according to him used to demand five or ten rupees per day from Khushi Muhammad deceased. Occasionally he obliged him but sometimes he refused. He deposed that at about 3 p.m. on the day of occurrence Khushi Muhammad left for the shop of halvai in order to recover some money. He was following him in order to go to his house. When he reached near a khokha in the Bazar he saw his son following the deceased and within his sight he gave a knife blow in the neck of the deceased. He raised alarm to catch the appellant, but he could not do so being an old person. According to him he caught the deceased when he had fallen. He was at a distance of 10/15 karams. He, however, did not profess to be an eye-witness in his statement (Exh. DE) before the police. The other ocular testimony consists of Abdul Hamid (P. W. 11) a passerby, Karim Nawaz (P. W. 12), Amir Bakhsh (P. W. 13) and Hassan Bakhsh (P. W. 14), who are shopkeepers in the vicinity. The conviction is solely based on the ocular evidence. The recoveries have been disbelieved by the learned Additional Sessions Judge. Learned counsel for the State has not canvassed for genuineness of the recoveries before this Court.
8. At the trial Abdul Ghafoor father of the appellant stated that he had not turned out the appellant from his house, but he stated before the committing Magistrate that he had turned him out from the house. He also did not state before the C. M. about the deceased having left for halvai shop and he followed him. His stand about the occurrence before the C. M. was that the appellant was sitting at the shop of ice seller, he jumped from the shop nad thrust the knife into the neck of the deceased who fell down. He also stated before the C. M. that the deceased was followed by the appellant who after receiving the injury turned towards him. But when he was confronted at the trial with his statement before the C. M. it was not so recorded. He admitted that his deceased brother-in-law was once challaned in gambling but denied the suggestion that the injury was given to him by some gamblers. His evidence does not inspire any confidence for it was most unnatural for the appellant to have asked the deceased to help him with money. The natural thing would have been that the appellant, if at all he was in reed of money, would have asked his father and not the brother of his step-mother. If he was eye-witness of the occurrence there was no reason why he should not have lodged the F. I. R. The old man seems to be under the influence of his wife and does not like the appellant. Perhaps he wanted to get rid of him who might have been pestering him for some money or as the appellant alleged he used to accuse his step-mother of immorality. Abdul Hamid (P. W. 11) stated that he was coming to the shop of one Abdul Aziz in Bazar Choori Sarai. He had not yet reached the shop when he heard appellant giving lalkara to Khushi Muhammad. He saw him following the deceased having open knife in his hand. Khushi Muhammad tried to run away towards west but in the meantime the appellant over took him and gave him knife blow. According to him the tragedy was witnessed by Amir Bakhsh, Hassan Bakhsh, an 1 Karim Nawaz who are utensil sellers in the Bazar. For the first time at the trial he introduced Abdul Ghafoor to have appeared at the scene and given support to the deceased after he received injury. Name of Abdul Ghafoor was not mentioned in the F. I. R. as an eye-witness by him. According to him he left for Delhi Gate where Murad Head Constable told him that he was wanted by the police at the place of occurrence. He came there and found the police present. His statement was recorded at the place of occurrence. But according to the prosecution his statement was recorded by the M. H.
C. Abdul Hamid (P. W. 3) at police station Kup. Obviously in his statement he did not support the prosecution on this point. He deposed at the trial that he was in front of the shop of Abdul Aziz when he saw the occurrence. In the plan prepared by Agha Muhammad Yousaf Khan, he is shown to have seen the occurrence from point No, 3 in front of Gali Saeed Khanwali. Abdul Aziz's shop has not been shown in the plan. He has not been produced at the trial. He stated that Abdul Aziz had closed the shop because murder had taken place in front of his shop. According to the plan the deceased was injured at point No, 1 In the Bazar in front of the corner of shop of Karim Nawaz adjacent to the shop of Muhammad Alam. He earlier stated that he saw the appellant giving the deceased injury on his neck but in cross-examination he deposed that the injury was given on the head. He saw the accused in the lane when he gave him lalkara. This lane can obviously be Gali Saeed Khanwali which is shown in the plan. Shop of Abdul Aziz has intentionally not been shown in the plan and the scene of occurrence has purposely been shifted to, in front of the shop of Karim Bakhsh in the main Bazar Choori Sarai. He stated that he came to the place of occurrence for the second time after hour and a half and found Sharif appellant present in the dcompany of police.
He also admitted that the police had summoned Karim Nawaz, Hassan and Amir Bakhsh at that time and he came to know the names of these witnesses then. It is, therefore, quite obvious that he did not know the witnesses and it was at the instance of police that he mentioned their names in the so-called F. I. R. which no doubt is proved to have b xn recorded at the spot. The witness denied the suggestion that he had a dispute with the appellant 5/6 days before the occurrence regarding ice which he used to supply, but he admitted to have known him for the last two years and not his father Abdul Ghafoor. It is strange that he did not mention any person, who gave support to the deceased, in the F. I. R., but he introduced Abdul Ghafoor who gave support to Khushi Muhammad, after he received the injury, at the trial. In my humble view this passerby was made to become the complainant in the case by the police upon whom bitter sense prevailed at the trial and he did not support the recovery of the knife. Abdul Ghafoor was intentionally avoided to be the complainant in the case because the police was apprehensive lest he may abstain from supporting the prosecution case at the trial against his son. It was perhaps the anxiety of the Investigating Officer to have an eye-witness as a complainant in the case rather than Abdul Ghafoor whose presence at the spot did not look like natural in the vicinity where the occurrence is alleged to have taken place, shops of Karim Nawaz (P. W. 12) and Amir Bakhsh (P. W. 13) are situated at the end of Gall Saeed Khanwali shown in the map. Both of them are utensil sellers. They claim to have seen the occurrence, which according to them took place at point No, 1, in Bazar Choori Sarai. Karim Nawaz stated that Abdul Ghafoor also came to the spot and caught hold of the deceased when he was going to fall on the ground. He stated that thereafter Abdul Hamid left for the police station to lodge the report. On the other hand Abdul Hamid has definitely stated that his statement was recorded at the spot. There are other material discrepancies in his statement. He did not state before the police that the appellant had an open knife in his hand but at the trial he improved and stated that the appellant was ho'ding open knife in his hand. According to him both the deceased and accused were coming from Chowk Bazar where the shop of Abdul Ghafoor is situate. He claimed that the knife blow was given in front of his shop while Abdul Hamid stated that the murder took place in front of the shop of Abdul Aziz and the accused was coming from the lane, obviously Gali Saeed Khanwali as there is no other lane nearby. Abdul Hamid saw him at Point No,
3. The deceased after receiving the injury turned back and ran towards the shop of Abdul Ghafoor. The direction from which the accused was coming, as given by Abdul Hamid, is quite different. He also stated before the C. M. that after receiving the injury the deceased got up and ran after the accused up to a distance of 25 paces and fell down there. The accused then turned towards east and entered into some lane, but at the trial he denied to have stated so before the Committing Magistrate. This witness did not mention the name of Abdul Ghafoor either to the police or to the C.
M. but introduced him for the first time at the trial. He admitted that the place of occurrence is a busy business centre and there was lot of rush in the Bazar. His conduct is most unnatural. He stated that he did not move from the place where he was sitting on the wooden plank although the murder had taken place in front of his shop. In his statement before the police and the C. M. he did not mention the names of Amir Bakhsh and Hassan Bakhsh as eye-witnesses. He joined the investigation of his own accord. He denied the suggestion that he was giving statement because he was friend of Abdul Ghafoor. I am afraid reliance cannot be placed on the testimony of this witness because of his conduct, the improvements made by him at the trial in his statement and the discrepancies therein. Amir Bakhsh (P. W. 13) stated that towards west of his shop he saw the accused chasing the deceased with an open knife in his hand. When they reached near the turning of the lane Sharif gave lalkara and inflicted injury on his neck within his view. Khushi Muhammad turned towards West in the Bazar and fell on the ground while Sharif appellant ran towards East and escaped into lane. According to the plan this witness was at Point No, 4 in the Bazar on the side of the shop opening in Bazar Choori Sarai. Obviously the place wherefrom the deceased and the appellant were coming seems to be Gali Saeed Khanwali for if the deceased was coming from the Western side in the main Bazar Choori Sarai he would not have turned to the left and reached point No, 1 in the plan where he got the injury. His statement, therefore, contradicts the statement of the other witnesses including Hassan Bakhsh (P. W. 14) who is said to have stated that both the appellant and the deceased passed in front of his shop and he saw the appellant giving knife blow to the deceased at Point No, 1 in the main Bazar. Karim Nawaz has not mentioned the names of both these witnesses Amir Bakhsh and Hassan Bakhsh in either of his statements before the police or the C. M. Abdul Hamid has definitely stated that police called these persons and told him their names. Abdul Hamid and Karim Nawaz are contradicted by Amir Bakhsh and Hassan Bakhsh in regard to the direction from which the deceased and the appellant were coming. Amir Bakhsh and Hassan Baldish- further introduced catching of the neck of the deceased by the appellant in his left hand and giving him injury with his right hand. This was not mentioned by Karim Nawaz and Abdul Hamid. Abdul Ghafoor was also introduced by Hassan Bakhsh for the first time at the trial. His conduct is also unnatural. He remained sitting as a silent spectator at his shop and denied Muhammad Shard's presence with the police when they arrived at the spot an hour and a half after the occurrence while Abdul Hamid has definitely so stated. Hassan Bakhsh also claims to have good relations with Abdul Ghafoor.
9. In my view the conviction of the appellant cannot be based on tainted testimony of the above witnesses. It is true that the occurrence took place in a very busy business centre of Multan City, but it is hard to presume that these untensil sellers were sitting idle and were watching some drama in the street. Usually these shopkeepers remain deeply busy with their customers. The F. I. R. was recorded at the spot. Abdul Aziz in front of whose shop the occurrence is alleged to have taken place according to the maker of the so-called F. I. R., has intentionally been withheld in order to get benefit of the testimony of these eye-witnesses. Whether these persons are deposing on account of the pressure of the police or on account of their relationship with Abdul Ghafoor is altogether immaterial. The arrest of the appellant from the bus by Muhammad Shah Feroze is also a white lie.
He was admittedly at the spot when Abdul Hamid's statement was recorded along with the witnesses. The police has gone all hog to manufacture false evidence in this case in order to implicate the accused. The prosecution has miserably failed to prove the case against the appellant.
10. I would, therefore, give benefit of doubt to the appellant and order his acquittal. He will be released forthwith if he is not wanted in any other case. In view of the above finding the reference for confirmation of death is rejected.
MUHAMMAD AFZAL ZULLAH, J.-1 have had the advantage of reading the judgment proposed to be delivered by my learned brother Shameem Hussain Kadri, J., with profoundest respect I have not been able to agree with the conclusion reached by his Lordship.
2. In this case, the prosecution relied on the following pieces of evidence:-- (i)Motive proved by Mst. Hamidan (P. W. 10), the step-mother, and Abdul Ghafoor (P. W. 15), the father of the appellant.
(ii)Ocular account given by five eye-witnesses, namely, Abdul Hamid (P. W. 11), Karim Nawaz (P. W.
12), Amir Bakhsh (P. W. 13), Hassan Bakhsh (P. W. 14) and aforesaid Abdul Ghafoor (P. W. 15).
(iii)The arrest of the appellant and recovery of blood, stained clothes from his person, on the day of occurrence, deposed to by Muhammad Sharif (P. W. 6), Sultan (P. W. 7) and Muhammad Shah Feroze, S. I. (P. W. 8).
(iv)Recovery of the crime weapon, a blood-stained knife, at the instance of the appellant, two days after his arrest; deposed to by Abdul Hamid (P. W. 11) and Maqbool Elahi, S. I. (P. W. 16).
3. The circumstance of arrest of the appellant and recovery of blood-stained clothes from his person, as alleged by the prosecution, does appear to be natural; but the criticism of the learned trial Judge in respect of the evidence produced by the prosecution in this behalf is based on some reasons. Moreover, the learned Assistant Advocate-General has also not relied upon this piece of evidence. Therefore, I would prefer to keep it out of consideration. With regard to the recovery of the knife at the instance of the appellant, the criticism by the learned trial Judge has the support of sound reasons. The learned Assistant Advocate-General has not sought support from this recovery. Moreover, the main witness in respect of this recovery being Abdul Hamid who, it appears, is not reliable, it is not safe to use it against the appellant. As such I consider it proper to keep this circumstance also out of consideration.
4. The learned trial Judge has implicitly relied on the statements of three eye-witnesses, namely Karim Nawaz, Amir Bakhsh and Hassan Bakhsh. He did take into consideration the main points of criticism against the statement of Abdul Hamid P. W. and discarded the F. I. R. said to have been lodged by this witness, on the ground that it was recorded after some preliminary investigation at the spot. However, he believed Abdul Hamid P. W. in so far as the ocular account given by him is concerned; mainly because the witness appeared to the learned trial Judge to be independent as he made certain concessions to the defence and thus was considered to be out of the influence of the police. Abdul Hamid P. W. has been relied upon in support of the prosecution case. With regard to Abdul Ghafoor, the learned trial Judge disbelieved his claim that he saw the occurrence; but accepted his statement in so far as it related to the motive. He has also relied on the statement of Mst. Hamidan in this behalf. Thus the conviction is based on the eye-witness account given by Abdul Hamid, Karim Nawaz, and Hassan Bakhsh P. W. and the motive supported by Mst. Hamidan and Abdul Ghafoor P. Ws.
5. Before dealing with the statements of the eye-witnesses, it needs to be remarked that the time of occurrence being 3 p.m. and the place of occurrence, where patches and trail of blood have been found, being a busy bazar, it is not at all possible to imagine that the culprit was not seen by anybody. It is also an admitted position that the shop jointly run by the father of the appellant and the deceased is in the same bazar. It is not at all the case of any party that the appellant was an unknown person in that bazar. Therefore, it has to be further assumed that if the culprit would have been somebody else than the appellant, nobody, except his enemies, would have named him as culprit soon after the occurrence and particularly on the arrival of the police at the scene. But for a very weak argument that Hassan Bakhsh P. W. has good relations with the father of the appellant, it has not even been suggested that any one of the eye-witnesses other than Abdul Ghafoor had either any connection with Abdul Ghafoor or anyagainst the ppellant, so as to falsely involve him in a murder case. The police station is hardly two furlongs from the place of occurrence and it is in evidence that the police reached the spot almost immediately after the occurrence. Admittedly, the name of the appellant only was disclosed to the police as the culprit in the case. The claim that to the F. I. R. was registered at the instance of Abdul Hamid at the police station has not been believed; but the fact remains that it was recorded by the police at the spot soon after the occurrence.
The time when the report is shown to have been recorded in the register of F. I. Rs, is 3-30 p.m. It means that the name of the appellant was disclosed as the culprit within about half an hour of the occurrence, at the spot. It is also in evidence that the three eye-witnesses, who have shops around the spot, were summoned by and were with, the police before the registration of the case. It is not possible to imagine that without anybody from these persons having disclosed the name of the appellant to the police, the police officer just, merely on the asking of the father of the appellant, treated him as the culprit.
6. Coming to the statements made by the eye-witnesses, it has to be straightaway remarked that it is not safe to rely on the statement of Abdul Hamid P. W. I am in respectful agreement with the assessm ent of his statement made by my learned brother. Mr. Kamal Mustafa Bokhari, the learned Assistant Advocate-General, contended that this witness tried to help the appellant by making certain concessions. The nature of the admissions made by the witness does create an impression that he might have tried to help the appellant; but for the reasons given by my learned brother and for the additional reason that the father of the appellant having fully supported the prosecution case and the appellant himself having remained in custody, there is no reason to suppose that this witness might have been won over. Therefore, I prefer to conclude that he had actually not seen the occurrence and had obliged the police by having offered to become the first informant. He does not belong to the locality nor is he a shopkeeper of the bazar. In all probability, he is a false witness; that is why so many infirmities cropped up in his statement. I would, therefore, keep his statement out of consideration.
7. The learned trial Judge has disbelieved Abdul Ghafoor P. W., the father of the appellant, in so far as his claim about witnessing the occurrence is concerned; was not pulling on well with the appellant before this occurrence. The supposition, in my view, is not well-founded.
It was more than about two decades before the occurrence that appellant's step-mother came in the house. There is no indication in the evidence nor there is any suggestion to Mst. Hamidan, who appeared as a P. W., that her relationship with her step-son was of such type that she would try to falsely implicate him in a murder case. On the contrary, it appears that the appellant had been getting small amounts from her, in spite of the fact that she treated him as a loafer. There is no evidence of any serious untoward incident having occurred between the two, except that according to her sometimes he used to coerce her to give him money. The same was the relationship between the appellant and the deceased who was the real brother of his step-mother and a partner in the business of his father. In these circumstances, it is very difficult to believe that after having lived together for more than twenty years, she would all of a sudden try to wreak all vengeance on her step-son, simply because her brother got killed by somebody.
In the background, in which the occurrence took place particularly the fact that it must have been witnessed by so many persons, it is very difficult to imagine that this being a single accused case she would have preferred the real culprit going scot free and her innocent step-son being implicated for the murder. Even if she would have desired such a thing, the statement of Abdul Ghafoor does not show that he was, in any way, so seriously annoyed with his son that he would have accepted the suggestion of his wife as to falsely implicate his real son. In my view therefore, there is no basis for the supposition that Abdul Ghafoor made a statement against the appellant out of any motive other than that of disclosing the truth.
Certain other points have been raised by the learned counsel for the appellant to show that Abdul Ghafoor might not have told the truth. One circumstance which, undoubtedly, is very important is that in the statement before the police he did not claim to have witnessed the occurrence. It appears that in this behalf the witness was not properly confronted. He, however, was asked the question whether he stated before the Committing Magistrate that he saw the appellant giving the knife blow to the deceased; to which he answered in affirmative and there is no confrontation. Even if it be assumed for the sake of argument that with regard to the actual injury he did not claim to be a witness in the statement recorded under section 161, Cr. P. C., one has to find out what could be the reason for this omission. As will be presently discussed, Amir Bakhsh, Karim Nawaz and Hassan Bakhsh are the witnesses of the occurrence. At least, according to two of them Abdul Ghafoor was seen by them at the spot at the moment that the deceased fell down. Moreover, the shop of Abdul Ghafoor P. W. is stated to be very near the place of occurrence. In fact, according to the eye-witness account and according to the circumstance that there is a trail of blood going towards the shop of Abdul Ghafoor, the deceased made an effort to run towards the shop of Abdul Ghafoor. Thus all the circumstances do indicate that it is not improbable that he is an eye-witness.
But the question still remains as to why the police thought it fit not to treat him as an eye-witness and not only they failed to make him the first informant, they also omitted any reference in that behalf in his statement recorded under section 161. In this behalf, I would rather adopt the opinion of my learned brother that "Abdul Ghafoor was intentionally avoided to be the complainant in the case because the police was apprehensive lest he may abstain from supporting the prosecution case at the trial against his son". With the other reason, i,e,, "perhaps it was the anxiety of the Investigating Officer to have an eye-witness as a complainant in the case rather than Abdul Ghafoor whose presence at the spot did not look like natural ", I, with profound respect, differ.
Abdul Hamid, according to our findings, is really not an eye-witness. Therefore, if the police wanted to have a false eye-witness as the first informant in the case, they could as well have selected Abdul Ghafoor. But for the earlier opinion expressed by my learned brother, they avoided it because they were apprehensive lest "he may abstain from supporting the prosecution case at the trial". In my view therefore, it cannot be held with any certainty that Abdul Ghafoor made improvement at the trial with regard to his claim of having witnessed the occurrence.
The learned trial Judge has also referred to the statement of Abdul Ghafoor to the effect that he followed the deceased immediately before the occurrence and that is why he saw the occurrence.
The learned Judge has disbelieved this part of the statement only on the ground that "the shop could not be left alone". The shop is, in fact, a fuel wood stall. The business is not of type that it could not be left alone for a while, for going to his house which is in the same locality, i,e, Choori Sarai. Therefore, the reasoning of the learned trial Judge, to me, is not acceptable.
While pointing out that Abdul Ghafoor must have reached the spot when the deceased was falling on the ground and also that he might have tried to support him, the learned trial Judge diluted the effect of this opinion by observing that there is conflict between the statement of Abdul Ghafoor and the medical evidence. According to the doctor, there were some abrasions which indicated that the deceased must have fallen on the ground. Thus Abdul Ghafoor could not have supported the deceased. In fact, the witness does not claim to have done so because he stated. "I did not catch the deceased when he was falling, but I caught him when he had fallen on the ground".
Therefore, it is quite probable that the deceased had already fallen and had suffered the abrasions, before the witness, who is an old man, could give any support to him.
It was also pointed out by the learned trial Judge that the clothes of the witness were not stained with blood, therefore it did not appear to him that he might have seen the occurrence. The statement of the witness in this behalf is,--"My hands were smeared with blood. It is possible that some stains might have come on my clothes but I am not sure. The police did not take into possession my clothes. I did not show them any stains of blood". This is a straightforward statement. Even if there were some stains of blood on his clothes, the police did not take them into possession probably because the witness could not point them out during the investigation. The simple failure of Abdul Ghafoor not to point out any blood stains, about which he stated he was not sure whether they existed or not, is not enough that he should be disbelieved. It is also not necessary that if he went near the deceased and touched him after the occurrence, his clothes must have necessarily been stained with blood. I, therefore, attach no importance to it.
Lastly, I cannot believe that due to the fact that Abdul Ghafoor had married another wife, he would have gone to the extent of falsely implicating his real son, on her asking. His statement shows that during the existence of this second marriage he, on his part, has been showing kindness to his son even though the latter was not a very good son. He also tried to arrange some means of livelihood for him on some occasions even though according to his statement, he squandered away the money. The statements made by the step-mother and the father of the appellant, when read together, do not create an impression that Abdul Ghafoor acted as a cruel father and that he falsely implicated his son. Indeed the circumstances that he is the real father and has deposed against his son has to be kept in view, But on this account alone, his statement cannot be brushed aside. I, therefore, hold that the statement of Abdul Ghafoor goes a long way against the appellant and is a very strong circumstance which cannot be ignored. It also provides a strong supporting circumstance, if at all any corroboration is needed, to the statements made by the other three eye-witnesses.
8. Learned counsel for the appellant criticised the statements of Karim Nawaz, Amir Bakhsh and Hassan Bakhsh, eyewitnesses, on the basis of the following points :-
(1) that there are some discrepancies between the statement of Abdul Hamid P. W. on the one hand and those of these P. Ws. on the other.
(ii)that these witnesses have tried to shift the occurrence from the lane to the main bazar.
(iii)that their conduct is unnatural because they continued to remain in their shops in spite of their having seen the occurrence and did not immediately rush to the spot. And lastly, (iv)that they made some improvements.
9. I have already made some comment in respect of Abdul Hamid P. W. He is not a truthful witness and his statement has been discarded. To compare the statements of other persons who, admittedly, are entirely independent and natural witness with that of a witness who has not been found to be true, is not the usual method of appreciation of evidence. Once the statement of a witness is discarded as not being true, the statements of other witnesses cannot be dubbed as doubtful simply because they are not consistent with that of the false witness. It appears to me that the statements of these three witnesses are fairly consistent inter se. I, therefore, attach no importance to the circumstance that Abdul Hamid's statement is discrepant from the statements made by them. Similarly, the argument that the scene of occurrence appears to have been shifted from the lane to the bazar is entirely based on the statement made by Abdul Hamid P. W. If his statement is excluded from consideration, the other witnesses are absolutely consistent on the point that the occurrence took place in the main bazar. I therefore, hold that the statements of these witnesses cannot be discarded simply because they are not consistent with that of Abdul Hamid on some points including the place of occurrence.
Only one blow was inflicted by the assailant. The deceased thereafter started running towards his shop. The appellant is said to have followed the victim for only about four or five paces and then made good his escape by running away into a lane in the opposite direction (Amir Bakhsh P. W. 13, examination-in-chief). All this must have taken a short time. The witnesses who were busy before the occurrence would have been attracted by the lalkara given by the appellant and thereafter it must have taken a short time for him to have accomplished the job. They could not have reached the spot so as to apprehend him. The appellant is a young man and must have run away fast enough so as to dissuade the witnesses from making any effort to run either to the spot or after him. Moreover, he was armed with a knife and it is not necessary that the witnesses should have immediately rushed to the spot. One more reason may be that Abdul Ghafoor, a close relation of both the parties, was nearby to help the deceased. Therefore they might not have immediately rushed to him. I am of the view that the circumstance pointed out by the learned counsel is not of much importance.
The so-called improvements, pointed out by the learned counsel, said to have been made by the witnesses in their statements at the trial are, in fact, easily reconcilable. It appears that the police adopted a particular attitude of their own in this case due to the close relationship of Abdul Ghafoor with the appellant. They further appear to have recorded the statements of the witnesses in the way it suited them best. For that reason, the statements made by the witnesses at the trial on oath cannot be discarded.
10. Coming to the criticism of individual statements made by the eye-witnesses, it has to be remarked that there is nothing substantial to be said against Karim Nawaz and Amir Bakhsh P. Ws. in addition to what has been noticed above in respect of all three of them. About Hassan Bakhsh P.
W. it was pointed out by the learned counsel that he admitted to have had good relations with Abdul Ghafoor. Therefore, it was contended that he is an interested witness. This does not mean that he had necessarily bad relations with the appellant or that he would, for the reason of his being on good relations with Abdul Ghafoor, falsely implicate the appellant. To me all these three eyewitnesses appear to be absolutely independent and there is no reason why any one of them should have deposed against him. They do not appear to be in any way connected with the police so as to dub them as stock police witnesses. All of them are shop-keepers and according to the position explained in the site plan they are the most natural witnesses. I, therefore, placing reliance on their statements, as supported by the statement of Abdul Ghafoor with regard to the occurrence, and the statements of Abdul Ghafoor and Mst. Hamidan P. Ws. with regard to motive, hold that the prosecution has produced ample evidence to support the case. I, therefore, maintain his conviction under section 302, P. P. C. There is no extenuating circumstance in so far as the sentence is concerned. I, therefore, confirm the sentence of death awarded to the appellant. The appeal fails and is dismissed.
ATAULLAH SAJJAD, J.--The appeal in this case and the murder reference, connected therewith, have been referred to me under section 429, Cr. P. C. as difference of opinion has arisen between my brothers Shameem Hussain Kadri and Muhammad Afzal Zullah, JJ. While the former found that offence had not been brought home to the appellant and ordered his acquittal, the latter found him guilty and confirmed the sentence of death imposed on him.
2. The facts on which the case of the prosecution is based, may briefly be described here.
Muhammad Sharif appellant had lost his mother when he was a child of about eight or nine years, and his father Abdul Ghafoor (P. W. 15) married Mst. Hamidan (P. W. 10) after the death of the mother of the appellant. This happened before Partition when the family was residing in East Punjab, which now forms a part of the Dominion of India. After Partition, Abdul Ghafoor P. W. settled at Multan and Khushi Muhammad, his brother-in-law, who in this case is said to have met his death at the hands of the appellant, took his abode in Burewala. Nine years before the occurrence, Khushi Muhammad shifted to Multan and started residing in the house of Abdul Ghafoor. lie invested a sum of Rs, 1,500 in the fuel shop which Abdul Ghafoor was running. The appellant proved to be a waster and although his father tried to fix him in the business, firstly, in a meat shop and then in a milk shop, he squandered the capital to the great dismay of his father, who turned him out of his house.
The appellant used to demand, occasionally, some money from the deceased varying from five to ten rupees who sometimes gave him the money but on occasions refused to oblige him. This part of the story was stated at the trial by Mst. Hamidan (P. W. 10) and Abdul Ghafoor (P. W. 15). Mst.
Hamidan further stated at the trial that on the evening proceeding the day of the occurrence Sharif appellant came to the house and demanded money from Khushi Muhammad who refused to pay saying that he was unable to fulfil his demand every day. Sharif threatened that he would finish him. This latter incident was not deposed to by Mst. Hamidan either before the police or the committing Magistrate and it definitely appears to be an improvement. It was the case of both Mst.
Hamidan and Abdul Ghafoor before the police as well as the committing Magistrate that the appellant had been turned out of the house of his father, but at the trial they tried to dilute the effect of this statement by denying this fact.
3. The occurrence took place on 30th of July 1968, at about 3 p.m. in Choori Sarai Bazar, Multan City, in the area of Police Station Kun, It is stated that Khushi Muhammad deceased was coming from his fuel shop which is towards the west when the accused followed him and after raising a lalkara gave him a knife blow opposite the shop of Karim Nawaz (P. W. 12). Khushi Muhammad ran back towards the west and fell opposite the shop of one Baqir Ali. The appellant then turned towards east and made good his escape. Besides Abdul Hamid (P. W. 11) who is the first informant in this case, the occurrence was seen by Karim Nawaz (P. W. 12), Amir Bakhsh (P. W. 13) and Hassan Bakhsh (P. W. 14). Abdul Ghafoor (P. W. 15) the father of the appellant was not mentioned as an eye-witness either in the F. I. R. or in the statement of any witness made before the police but he proposed to be an eye-witness before the Inquiry Magistrate and at the trial.
4. The appellant was arrested between 9 and 10 pd.m. from a bus proceeding to Muzaffargarh by S. I. Muhammad Shah Feroz (P. W. 8) who was accompanied by Muhammad Sharif and Sultan, P. Ws.
6 and 7 respectively. He was then wearing shirt P. 7 and lungi P. 8 which were found to be stained with blood. They were taken into possession and sealed into a parcel. Blood-stained knife P. 1 was recovered at the instance of the appellant on 2nd of August 1968, from the projection of the pillar of a canal bridge called "Pul Morain Wattan". The recovery was witnessed by Muhammad Akram (P.
W. 9) and Abdul Hamid (P. W. 11) apart from S. I. Maqbul Ilahi Cheema (P. W. 16).
5. According to the prosecution the F. I. R. was lodged by Abdul Hamid at Police Station Kup which is at a distance of two furlongs from the place of occurrence at 3-30 p.m. i,e, within half an hour of the occurrence. But Abdul Hamid who stuck to his statement so far as actual occurrence was concerned stated that he had gone to Delhi Gate after seeing the occurrence and it was then that he was told by Head Constable Murad that he was being called by the police at the place of occurrence. He came back to the spot where his statement was recorded. He also stated that Karim Na waz, Hassan and Amir Bakhsh P. Ws. were there and he came to know their names at that time. He was also a witness of the recovery of the knife but he stated at the trial that the knife was shown to him in the Police Station.
6. The learned trial Judge rejected the evidence regarding arrest of the appellant and the recovery of blood-stained clothes. He also held that the recovery of the knife was a fake one. Abdul Hamid had not supported the prosecution on some material points. The trial Judge felt impressed by this fact and held that Abdul Hamid in so far as he professed to be eye-witness of the occurrence was a witness of truth. He excluded the ocular testimony of Abdul Ghafoor from consideration but believed the other three eye-witnesses. Both my brothers have agreed that the evidence regarding the arrest of the accused and the recovery of knife was rightly rejected by the trial Court. Abdul Hamid was, in any case, a chance witness and their Lordships have agreed to leave his evidence out of consideration.
7. My brother Muhammad Afzal Zullah, J. has relied on the testimony of Abdul Ghafoor mainly for the reasons that he is the father of the appellant and his shop being near the place of occurrence his presence was not improbable. On the perusal of the whole record I feel that the testimony of Abdul Ghafoor should be excluded from consideration. He was not mentioned by any of the witnesses before the police. According to Hussain Bakhsh P. W. the shop of Abdul Ghafoor is at a distance of ten to fifteen yards from the place where Khushi Muhammad is said to have fallen but it cannot be safely held that he is an eye-witness of the occurrence. He was not owned by the prosecution as an eye-witness during the initial stages of the investigation and he did not profess to be one. The fact that he is the father of the appellant is a strong persuasive factor in lending impressiveness to his story but we cannot forget that the appellant had been treated as an outcast after the arrival of the deceased of the warmth of fatherly affection had been replaced by cold indifference. The prosecution may have manoeuvred to oust Abdul Ghafoor from the category of eye-witnesses although he may have been one, but the benefit for this should go to the accused on account of established principles of appraisal of evidence in criminal cases.
8. The other three eye-witnesses, namely, Karim Nawaz, Hasan and Amir Bakhsh run their business in the locality. It is nobody's case that their shops were closed and as the occurrence took place very near to their shops, they are the natural witnesses of the occurrence. The police reached the spot after an hour or so of the occurrence and the evidence is that these witnesses were with the police at that time. The fact that Karim Nawaz did not mention Amir Bakhsh and Hasan Bakhsh as eye-witnesses in his statement before the police does not detract from the value of the evidence of other two witnesses. Karim Nawaz was sitting in his own shop and was concerned with what he himself had seen. The whole Bazar was open and he could not say as to who had seen the occurrence and who had not. The assailant was only one and there is no reason for these eye- witnesses to substitute the present appellant for the real culprit. It was suggested by the defence that the deceased was a gambler and met his death at the hands of gamblers. The suggestion is too puerile to be taken notice of. One of the witnesses Hassan Bakhsh admitted that he had good relations with Abdul Ghafoor but this does not mean that he would go to the length of implicating the appellant in a false murder case. It is true that these witnesses have introduced Abdul Ghafoor as an eye-witness at the trial whereas before the police they did not mention him as one. This, in itself, is not a reason for throwing away their whole evidence. The only criticism levelled against the above three eye-witnesses is that they had stated before the police that the deceased ran after hearing the lalkara and was given the injury after some pursuit. At the trial they stated that the deceased ran towards west after receiving the injuries and was then pursued by the appellant.
This is a minor discrepancy. Their conduct in continuing to sit at their shops was also criticised.
Since Abdul Ghafoor must have reached soon after the occurrence from his fuel shop, the witnesses had no occasion to leave their shops and go near the deceased. Karim Nawaz had stated before the committing Magistrate that the deceased after receiving injuries had pursued the assailant to some distance. I do not doubt the presence of Karim Nawaz at his shop. The above statement may have been made on account of some confusion. The other two eye-witnesses have, however, consistently made a uniform statement at each stage of the case.
9. It is not clear from the record as to what was the Immediate cause for the commission of this crime. The story given by Mst. Hamidan that there was an altercation on the evening previous to the day of the occurrence was not mentioned by her before the police or the committing Magistrate. I have held it to be an embellishment. It, however, appears that discontent was simmering in the mind of the appellant on account of his exile from his parental home and due to the fact that his step-mother and her brother had completely taken hold of his father. The accumulated resentment in the mind of the appellant erupted in the act of violence which resulted in the death of Khushi Muhammad but I presume something must have happened before the occurrence which infuriated the appellant. The appellant had been turned out of his house, about nine years before the occurrence, on the arrival of the deceased, and it is not alleged that during this period he committed any act of violence against the deceased. The story of the eye-witnesses who have been believed is that the appellant was pursuing the deceased and this statement appears to be consistent with the presumption that something may have developed at the spur of the moment. Since the immediate cause of the commission of the offence is not known and the story set out by the prosecution, so far as motive is concerned, has been found to be false, I do not think that extreme penalty of law should be exacted from the appellant.
10.I may state here that under section 429, Cr. P. C. the reference to the third Judge is with regard to the whole case and the judgment or order is to follow his opinion. This opinion need not be in agreement or at variance with one of the Judges on account of whose difference of opinion a reference has been made. It has to be an independent assessment of the case including the question of sentence. Reference in this connection may be made to Sarat Chandra Mitra v.
Emperor , Emperor v. Dukari Chandra Karmakar , Ahmad Sher and others v. Emperor , Daulat Ram v. Emperor , In re : Ravipati Sitaramayya , Abdur Raziq v. The State and Mohim Mondal v. The State .
11.Out of the above cases, the cases of Sarat Chandra Mitra v. Emperor, Emperor v. Dukari Chandra Karmakar and In re: Ravipati Sitaramayya, directly deal with the question of sentence. In Dukari Chandra's case, referred to above, C. C. Ghose, J. to whom the case had been referred as a third Judge under section 429, Cr. P. C., referred to the opinion of Woodroffe, J., which was to the effect that if two Judges are in disagreement over the question of sentence, one favouring the death penalty and the other transportation for life, that in itself may be a sufficient ground for holding that the death penalty should not be imposed. The learned Judge, however, thought that the rule enunciated by Woodroffe, J. was not inflexible and that the third Judge should decide for himself1 2 3 4 5 6 7 whether the case before him was or was not a fit one for the imposition of the death penalty. In Ravipati Sitaramayya's case it was held that it was the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him. it was observed by Samasundaram, J., that :-- "When on a difference of opinion as case is referred to a third Judge no fetter can be placed on the third Judge. He is at liberty to express and act upon the opinion which he himself arrives at. If he chooses, he can pass a sentence of death, even though one Judge favours an acquittal and the other gives a sentence of transportation for life when convicting the accused."
While examining the scope of a reference mad: under section 429, Cr. P. C., Mookerjee, J. observed in the case of Sarat Chandra Mitra, as under :- "In such a contingency, what is laid before another Judge, is, not the point or points upon which the Judges are equally divided in opinion, but the 'case'. This obviously means that so far as the particular accused is concerned, the whole case is, laid before the third Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three Judges; for instance, at the original hearing of the appeal, one Judge may consider the prisoner not guilty, another Judge may consider him guilty under one section of the Indian Penal Code, and liable to be punished in a certain way; the third Judge may find him guilty under a different section and pass such sentence as he thinks lit."
I respectfully agree with the above observations and hold that I am entitled to determine the question of sentence, not-withstanding the confirmation of death by Muhammad Afzal Zullah, J.
12. In view of what I have said above, I maintain the conviction of the appellant under section 302, P.
P. C. but substitute the sentence of transportation for life for the sentence of death. The sentence of death is not confirmed. 38 Cal. 202 AIR 1930 Cal. 193 AIR 1931 Lah. 513 AIR 1947 Lah. 244 AIR 1953 Mad. 61 PLD 1964 Pesh. 67 PLD 1964 Dacca 480