This is a petition under section 561-A, Cr. P. C. for quashing of proceedings pending against the petitioner a Sub-Inspector in the Police Department, under section 180, P. P. C. in the Court of the Assistant Commissioner, Chiniot, having been initiated at the instance of Mr. Bashir Hussain Tahir, Resident Magistrate of that place.
2. The background of the case is that the petitioner had to appear in the Court of Mr. Bashir Hussain Tahir, the complainant Magistrate, on the 15th of April 1971, as a witness in a case, "State v.
Muhammad Yaqub", under section 325, P. P. C. and allegedly entered the witness-box without observing the proper formality of saluting the Court. When his attention was allegedly drawn by the learned Magistrate to this com mission, the petitioner replied that he would not salute such a Court, whereupon the learned Magistrate proceeded against the petitioner for an offence under section 228, P. P. C. having recourse to the procedure laid down in sections 480 and 481, Cr. P. C. In the course of these proceedings the petitioner when enquired as to whether he wanted to say anything allegedly replied "Take whatever action you want to take." The proceedings ended in conviction with an award fof a fine of Rs. 200 to the petitioner who appears to have made the payment then and there and filed an appeal against the order of his conviction which is pending before the learned Sessions Judge. Proceedings under section 180, P. P. C. which are the subject- matter of the present petition are an off shoot of the proceedings under section 228, P. P. C.
According to the learned Magistrate his refusal to sign his statement the petitioner had committed an offence under section 180 of the P. P. C. which reads as follows : "Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall 'sign that statement, shall be punished with simple imprisonment for a term which m ay extend to three months, or with fine which may extend to five hundred rupees, or with both."
3. It is contended on behalf of the petitioner that the only provision of law which places a person under a statutory obligation to sign the statement made by him is the one contained in section 364 (2) of the Cr. P. C. which is not relevant to proceedings under sections 480 and 481 of the Cr. P. C. It is contended that section 481 does not make it obligatory for the petitioner to make a statement as clearly indicated by the use of the words (if any) in parenthesis. Reliance is placed in this regard on Karishna Chandra Bhomick v. Emperor (1) and State v. Sardar Ahmad (2).
4. On the other hand it is contended by the learned counsel for the State that the petitioner was being examined under section 342 of the Cr. P. C. when he refused to sign the statement made by him and as such the case was fully covered by the provisions contained in section 364 of the Cr. P.
C. which make it obligatory upon him to sign the statement made by him.
5. It may be observed in the first instance that from a persual of the record received in this Court I do not find the so-called statement made by the petitioner which he refused to sign despite an order by the learned Magistrate. It appears that since an appeal against the order of his conviction under section 228, P. P. C. is pending before the learned Sessions Judge, the statement which formed a part of that record was not available with the learned trial Magistrate. However a perusal of the copy supplied to the State counsel shows that this statement was nothing but a mere query from the petitioner as to whether he pleaded guilty or not or whether he wished to say anything by way of an explanation the object obviously being to afford an opportunity to the accused person to explain his position strictly speaking this is not a detailed examination of the accused as envisaged by section 342, Cr. P. C. although if not questioned he could legitimately raise the plea of prejudice.
The reason is two-fold. Firstly, the proceedings in a case of an offence under section 228, P. P. C. as prescribed in sections 480 and 481, Cr. P. C. are of a summary nature and subsection (4) of section 364, Cr. P. C. deary excludes the application of the provisions contained in subsections (1), (2) and
(3) ibid in respect of summay trials held under section 263, Cr. P. C. of which part *g' refers to "the plea of the accused and his examination (if any)". On this analogy, therefore, the so-called statement of the petitioner which he allegedly refused to sign was nothing but a question put to him regarding his plea or his optional exami nation which has been specifically exempted from the application of section 364 (1), (2) and (3), Cr. P. C. The matter could also be considered from another aspect. As stated earlier having perused the so-called plea the accused chose to offer I am inclined to think that it would also be covered by the provisions contained in sections 255 and 256, Cr. P. C. which according to the D. B. judgment, The State v. Sardar Ahmad, relied upon by both sides could not be construed as an examination of the petitioner placing him under a statutory obligation to sign the same as envisaged by section 364 (2),
6. Having considered the contentions raised by the learned counsel for the parties I am of the view that even if the allegations contained in the complaint pending against the petitioner are taken to be correct on their face value no offence is made out under section 180, P. P. C. and as such any further continuation of the proceedings would be nothing but a mere abuse of the process of the Court. Accordingly, I allow this petition and quash the proceedings.
Proceedings quashed.
1972 P Cr, L J 285 (Karachi] Before Khuda Bakhsh Marri and Agha AU Hyder, JJ ANWAR and another---Appellants versus The STATE--Respondent Criminal Appeal No. 201 of 1970, decided on 24th June 1971.
(a)Penal Code (XLV of I860), S. 302 -- Evidence -- Corroboration--Benefit of doubt--Bitter enmity of parties borne out by record and admitted by parties--Statement of complainant not corroborated by other eye-witness in all material facts-- Uncorroborated ocular evidence, held, cannot be relied upon--- Accused given benefit of doubt and acquitted in circumstances. [p. 29l]A Doulat and others v. The State PLD 1964 Kar. 187 ; Khurshid Ahmad v. Kabool Ahmad and others PLD 1964 Kar. 356 ; Ayo v. The State PLD 1967 Kar. 791 and Thmghai v. The State 1969 P Cr. L J 439 rel (b)Penal Code (XLV of I860), S. 302 -- Evidence -- Ballistic Expert not examined in Court, crime empty recovered after 2 months, and parcels not sealed--Crime weapon, in circum stances, held, cannot be connected to accused as having been used by him. [p. 29I]B Azizuilah A. Shaikh for Appellants.
A. Karim Lakhan for the State.
Date of hearing : 24th June 1971.
Khuda Bakhsh Marri, J.--This appeal under section 410 of the Code of Criminal Procedure is directed against the the judgment dated 14th May 1970, passed by the learned Additional Sessions Judge, Tharparkar at Sanghar Mr. Abdul Ghafoor Shaikh in Sessions Case No. 20 of 1969, whereby he convicted appellants Anwar son of Wali Muhammad aged 25 years and Abdullah son of Yar Muhammad aged 30 years under section 302, P. P. C. read with section 34, P. P. G. respectively and sentenced each of them to transportation for life.
2. Briefly the facts of this case are that Banho by caste Bugti is alleged to have been murdered as per F. I. R. on 23-8-1968 at 7 a.m., the scene of offence being west of village of Bahram Khan at a distance of about 3/4 miles on road of Bakar towards East from Police Station at a distance of seven miles, Taluka Sanghar. The F. I. R. was filed by Mst. Janul wife of deceased Banho at about 8- 35 hours. Before going further, it is necessary to establish the relationship of the accused with the complainant party. Mst. Janul the complainant is sister of Wali Muhammad. Accused Anwar is son of Wali Muhammad while accused Abdullah is son of sister of Wali Muhammad and that of complainant. It is on record that there was matrimonial dispute between the complainant and Wali Muhammad. A brother of Wali Muhammad namely, Soomar who is incidentally the brother of complainant Mst. Janul was murdered about 4 years back. In that case deceased Banho and his two sons Punho and Mitho were challaned, the case however was referred to Jirga which convicted Mitho and sentenced him to seven years' imprisonment while deceased Banho and his second son Punhoo were let off. This decision is said to have taken place 10 months prior to the present incident. On 21-8-1968 the complainant along with her deceased husband Banho, Bajhi, P. W. Rohal Khan and two girls of the family, according to the prosecution, took Holy Quran and went to Wali Muhammad's village to request him to settle the dispute and pardon them for the murder of Soomar, the party stayed for a night in the house of Wali Muhammad but they could not succeed in the mission and Wali Muhammad refused to come to an agreement. Having been disappointed, the complainant party left next morning for village Bahram Khan, the very next day i. e. 22-8-1968 for the purpose of offering condolence to his brothers Sahib Khan and Qaisar, for the demise of Bahram Khan Bugti. While they were staying in the village of Bahram Khan, it is alleged that one Mubarak who is related to both the parties brought a message from Wali Muhammad to Banho to the effect that he should return to village of Wali Muhammad early next morning so that a settlement may be arrived at. It is the case of prosecution that early next morning deceased Banho with his wife Mst. Janul returned from village of Bahram Khan to the village of Wali Muhammad on 23-8-1968, when they had covered a distance of about 3/4 miles, complainant noticed that the present two accused sprang out from Kltahar hushes, accused Abdullah had a gun and accused Anwar had a lathi. It is alleged that Anwar caught hold of complainant while Abdullah fired two shots from his gun at Banho who was hit and fell down and Anwer also gave some lathi blows to the deceased. Thereafter, both the accused are said to have ran away. The complainant raised cries attracting attention of 2- 3 persons including Qadir Bux P. W. who was informed by the complainant about the incident and asked him to stay at the dead body and she weut towards village of Bahram Khan to inform the villagers. On the way complainant is said to have found Hashim, she informed him as well and asked him to inform other villagers. In the meanwhile Ghos Bux and other villagers reached the ] vardat and complainant narrated the incident to them. She then went to Saughar,where at the Police Station an F. I. R., as stated above, was recorded.
3. The Police took up investigation.! Dead body *was sent for post-mortem (examination and after necessary enquiries challaned the accused in thcCourt* of Civil Judge and.F. C. M., | Sanghar under section 302, P. P. C. read with section 34, P. P. C; who committed the accused to the Court|of Additional.,Sessions Judge, Tharparkar at Sanghar who has convicted and sentenced them as stated above.
4. The ocular evidence in this case comprises of Mst. Janul P. W. being the complainant and one Qadir Bux P. W.
3. Qaisar Khan and his brother Sahib Khan and Muhammad Hussain, Investigating Officer are produced by the prosecution for corroboration of the evidence of the above-stated eye witnesses. These persons went to the vardat subsequently, saw the dead body of deceased Banho and then saw the injuries. Then there is statement of Medical Officer who has done the post- mortem cxamination*on' the dead body. j According to him there were following injuries: "(1) Contused wound l'x bone deep on the right 2nd Iiitcr-costal space near the manubrium sterni.
(2) Contused wound Y'xY muscle deep little lateral to injury No, 1.
(3) Contused wound x i"x'muscle deep on the left 2nd Inter-costal space near sternum.
(4) Contused wound x x muscle deep on right forth Inter-costal space near sternum.
(5) Contused wound I'xJ'x muscle deep on the left clavicular region near shoulder-joint.
(6) Three circular wounds each measuring ' x i" x ' in the right third inter-costal space adjacent to each other.
(7) Five circular wounds each i"x Ix i* ovcr the back of left side of chest in the scapular region piercing in the chest cavity all closely situated to each other."
These injuries according to the Medical Officer were ante mortem and appeared to have been caused by discharge from fire-arm such as a gun and have been caused by one gun shot. The entry wounds according to him were sufficient to cause death in the ordinary course of nature. He however, further elaborated that "the assailant appear to be at the back of deceased at the time of lire."
5. The prosecution further examined Abdullah Tapcdar Exit. 5, Rohal Khan Exh. 7, Qadir Bux Exh. 8, Muhammad Ishaque corpse carrier Exh. 10, complainant Mst. Janul Exh. II, Qaisar Khan Mashlr of vardat and Inquest report Exh. 13, Sahib Khan Mashir of arrest of accused and that of securing gun from accused Anwar Exh. 17 and Muhammad Hussain, Investigating Officer Exh. 21.
6. It has been established by the statements of the complainant and the prosecution witnesses that the parties belong to Bugti Baluch Tribe and are related inter se having existing old enmity as well.
7. The motive of the incident as disclosed by the prosecution is that this murder of Banho has been committed by the accused to take revenge of the murder of Soomar brother of Wali Muhammad, in which deceased and his two sons are said to have taken part. The accused produced no defence and flatly denied their participation in the offence. They however, admitted the matrimonial dispute between the parties and the inter se relationship and factum of death of Soomar and the involvement of the deceased and his two sons in the offence.
8. Wc have heard Mr. Azizullah K. Shaikh, Advocate for the appellants and Mr. Abdul Karim Lakhan, Advocate for the State. The learned counsel for the appellants during the course of his argument pointed out that the case of the prosecution suffers from grave discrepancies in many details they being sufficient by themselves to raise benefit of doubt in favour of the appellant. He submitted that statement of complainant Mst. Janul who is the only eye-witness is not supported as regards to identity of the appellants by the next eye-witness produced by the prosecution namely, Qadir Bux, as Mst. Janul has stated in her F.
1. R. that-- "When we covered a distance of about 3/4 miles, all of a sudden accused Abdullah, who was armed with gun and accused Anwar who was armed with 'lathi' both catne out from a 'Khabar' and challenged my husband Banho that they would not spare him and accused Abdullah pointed my husband with gun. As accused Anwar is my real nephew and accused Abdullah is my sister's son, therefore, for the defence of my husband I stood in front of him, so that they may think of me, and refrain from killing of my husband, but accused Anwar came running and drove me away, while holding my arm, and Abdullah one after the other, fired two gun shots which struck my husband, who fell down there, thereafter Anwar inflicted him 'lathi' blows. At that time, at a short distance Kadir Bux, Mulan and other three persons, who are not known to me, who were ploughing, they also came running, on seeing them coming accused ran away towards village. Kadir Bux and others also saw the accused while firing gun shots and running thereafter." and Mst. Janul it was submitted, has further stated in her statement that she has told the name of the accused to P. W. Qadir Bux. It was pointed out that the important fact as regards to the identity of the accused P. W. Qadir Bux the only next eye-witness does not support at all the statement made by complainant Mst. Janul, because in his examination Kadir Bux states that -- "I was ploughing in the land, P. W. Khair Muhammad was also ploughing. We heard two gun shots. I saw two persons running away. I saw one of them having a gun while the other was empty- handed, I could not identify them as they were with their sides to me. I also saw an old woman running towards me. She told me that her husband was murdered and I should help her to arrange the dead body. On my enquiry she did not give the names of the culprits but she told me that one of them was her nephew and the other was son of her sister. I did not go to the dead body fearing that I might be implicated." it was further pointed out by the learned counsel for the appellants that statement of Mst. Janul the complainant is clearly against the medical evidence on record because as stated earlier according to the Doctor the injuries were caused by one gun shot and not by two as stated by Mr. Janul and secondly the gun was fired from the back of the deceased and not from front as stated by Mst. Janul. She has stated that the accused Abdullah shot her husband on his chest while accused Anwar held her by hand and threw her on the ground and thereafter, he gave lathi blows to the deceased as well. The learned counsel for the appellant severely criticised this part of the evidence of the first informant stating that the Doctor being independent witness and an expert in his profession is more reliable in the circumstances than the evidence of the complainant. Firstly, her statement is belied by the medical report as the deceased has no injury caused by a lathi, secondly the injury which caused the death is result of only one gun shot and not two as stated by the complainant and thirdly as the gun must have been fired from a distance, has the complainant been telling truth that she tried to cover her husband, it is very natural in the circumstances it was argued, that she might have sustained some injuries by the pellets discharged from the gun, having been spread by the distance but she has not sustained any injury of the shot, therefore, it was argued that her statement that-- "I was together with my husband. My husband got the gunlire shot in his chest. My husband was facing the accused." should not be believed at all. If that is so it is argued, the prosecution has failed sufficiently to prove the involvement of the appellants in the incident. As already stated, the only other eye-witness Qadir Bux docs not support the complainant with regards to identity of the appellants. It was further argued that due to non-support of Qadir Bux, there is no corroboration in the eye of law which is very necessary in (he circumstances to the statement made byf Mst. Janul.
9. It was argued by the learned counsel for the appellants that there is no denial that old enmity exists between the parties and the present murder is in the chain of revenge the parties are taking against each other since last 60 years. In these circumstances it was urged that when bitter enmity exists between the parties, the statement of complainant as a solitary eye-witness who is admittedly on inimical terms with the appellants' family although their relation as well, should not be believed at all. In support of this proposition he relied on Doulat and others v. The State (1) wherein it was held:-- "Apart from the above circumstances against the veracity of the testimony given by the three eye- witnesses the evidence of the eye-witnesses is not corroborated at all. The witnesses are all relations between them; of course all the appellants are also related to them. Enmity is admitted between the parties on the question of suspicion of the deceased being on illicit intimacy with the mother of the appellants. Under these circumstances we find it not possible for us to accept the uncorroborated testimony of the prosecution witnesses against the appellants. The guilt of the appellants has thus not been proved."
The learned counsel for the appellants further referred to us Khurshid Ahmad v. Kabooi Ahmad and others (2) wherein it was neld that:-- "Parties inter-related -- Enmity established -- Prosecution witnesses interested--Independent corroboration of evidence imperative--Corroborative evidence in form of circumstantial evidence --Must be arising from sources distinct from and in dependent of already tainted source-- Corroboration of testimony of interested witnesses in murder case--Corroboration required both as to factum of incident as well as regarding identity of assailant."
The learned counsel further relied on Ayo v. The State (3) in which it was held by a Division Bench of this Court that-- "this is a case of a kind of blood-feud between two parties and the evidence is not only of persons who are inter-related but who are admittedly in the camp opposite to that of the accused.
Therefore, some kind of corroboration would have been necessary so as to remove such doubt as might attach to the evidence of the partisan eye-witnesses and also removing such doubt as attached on the point of identifi cation."
The learned counsel for the appellant next referred to the case of Thanghai v. The State (4) wherein it was held that:-- "Prosecution eye-witnesses not only related to one another but hostile to accused due to enmity against him. Reliance
(2) PLD 1964 Kar. 356
(4) 1969 P Cr. L J 439 cannot be placed on evidence of such witnesses unless corrobo rated by independent evidence."
10. As we have observed earlier, the bitter enmity of the parties who belong to the same caste i. e.
Bugti Baluch is borne out by the record and admitted by the parties in their statements. In view of the decisions cited above and the circumstances of this case we are of the opinion that the statement of Mst. Janul the complainant who is the only eye-witness not being corroborated by Qadir Bux as required by law, is not worthy of credit. The remaining witnesses are not of much importance as they do not corroborate the statement of the complainant in all material facts. Not to say that statement of Qaisar Khan and Sahib Khan suffer from many contradictions with regards to their presence at vardat and recovery of the gun and arrest of the accused and statement made by complainant Mst. Janul to them besides they are more nearly related admittedly to the complainant than the appellants. No reliance can therefore, be placed on the statements of these witnesses.
11. As regards to the recovery of a gun and an empty the learned counsel for the appellants pointed out that although a report has been called from the Ballistic Expert but he was never examined in the Court, therefore, no reliance can be placed on his opinion. He further pointed out that an empty has been recovered after two months and the parcels were not sealed as per statements of the mashirs by the police at the time of recovery, therefore, the instrument of offence cannot be connected to the appellants as having used by them. We are of the opinion that there is much force in the arguments advanced by the learned counsel for the appellants.
12. We called upon Mr. Lakhan, the learned counsel for the State, the only argument he advanced was that it is not possible that Mst. Janul will innocently implicate the appellants who are her nephew and cousin. This proposition was not supported by any case-law and when it was pointed out to him that the prosecution has to prove his case beyond any reasonable doubt and not to travel on possibilites and probabilities, the learned counsel has no worthwhile reply to advance.
13. We respectfully agree with the principles laid down in the above-cited judgments and are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and benefit of doubt in the circumstances of the case as discussed above, must be given to the appellants. We therefore, accept the appeal and set aside the conviction and sentence of the appellants under section 302 read with section 34, P. P. C. and acquit the appellants, who are ordered to be released forthwith. .