FAZAL KARIM, J: -- This is an appeal from a judgment of the learned Additional Sessions Judge, Khanewal, dated 17-4-1989, convicting the appellants, Muhammad Ishaque, Shaukat Hayat, Ejaz and Ghulam Muhammad alias Watni, under section 302 read with section 34 of the P.P.C. 'and sentencing each of them to imprisonment for life, to pay a fine of Rs.10,000 and in default to suffer R.I. For two years, for the murder of Khalid Mahmood and convicting them under section 324 read with section 34 of the P.P.C. And sentencing them to two years' R.I. Each for causing injuries to Abdul Sattar P.W. The sentences were directed to run concurrently.
2. While Cr. A. 101 of 1989 by the appellants is against their conviction and sentence, the complainant, Abdul Jabbar (P.W.7) has filed Cr.Rev. 71/89, praying that "the judgment of the trial Judge may kindly be modified and sentence may kindly be enhanced to the extent that the accused-respondents may kindly be awarded capital punishment".
3. The appellants, Muhammad Ishaque and Shaukat Hayat, are real brothers; the appellant, Ejaz, is their cousin and, the appellant, Ghulam Muhammad alias Watni, isstated to be their tenant.
4. The deceased man, Khalid Mahmood, was a son of the injured Abdul Sattar P.W., and a brother to Abdul Jabbar P.W.
5. The incident occurred at about Jumma prayer time on 29-1-1988 in the fields in Chak No.29/10-R, which place is about 12 kilometres from P.S. Kacha Khooh, District Khanewal. Its first information was laid at the police station by Abdul Jabbar (P.W.7) at 3-00 p.m. On the same day before the S.H.O.
Allah Ditta Inspector. The F.I.R. Is Exh.P.K.
6. The substance of the prosecution case was as follows. Killa Nos. 12, 13 and 14 of Square No.55 are Government land. One part of Killa No.12 was in possession of the complainant party and the other part was in possession of the accused party. Both the parties had obtained land of Square No.55 from the Government on lease. The period of lease of the accused party had come to an end some two years before the incident, the period of lease of the complainant party was 15 years. There had been a dispute between the parties about the Watt, dividing Killa No.12 for 3/4 years. The accused party wanted to usurp the complainant party's land.
7. On the day of occurrence at about 1-30 p.m., Abdul Jabbar P.W. Was irrigating Killa No.14; his uncle's son, Muhammad Iqbal, (who was given up at the trial) was also with him. His father, Abdul Sattar P.W., was sitting at his Bhaini in Killa No.13 and his brother, Khalid Mahmood deceased, was cutting grass in, Killa No.12. The appellants, Muhammad Ishaque and Shaukat Hayat, armed with .12 bore guns, Ejaz, appellant, armed with a .32 bore revolver and Ghulam Muhammad alias Watni appellant, armed with a knife, arrived. They stood on the Watt in the middle of Killa No.12.
Muhammad Ishaque, appellant, directed a tractor driver "to demolish the Watt running in the middle of Killa No.12" and the tractor driver (his name is not known) did so. Khalid Mahmood deceased asked the appellants not 'to demolish the Watt. They shouted, saying that "he was preventing not to demolish the Watt but 'they were thirsty of his blood". On hearing this, Abdul Jabbar and Muhammad Iqbal proceeded towards the spot and so did Abdul Sattar P.W.
Muhammad Ishaque and Shaukat Hayat, appellants, fired at Khalid Mahmood hitting him in his chest. Khalid Mahmood fell down. Ejaz, appellant, fired his .32 bore revolver, hitting him near his left ear. Ghulam Muhammad, appellant, struck the deceased with his knife on the backside of the left shoulder. Abdul Sattar P.W. Laid himself on Khalid Mahmood and Ghulam Muhammad, appellant, started hitting him with his knife and caused him injuries on the ear, on the left arm and on the left shoulder. Muhammad Ishaque, appellant, then struck the deceased Khalid Mahmood with the butt of his gun. Shaukat Hayat, appellant, reloaded his gun and fired at Abdul Sattar P.W. And a pellet struck him in the back. Shaukat Hayat and Muhammad Ishaque, appellants, also gave butt blows on the head and chest of Khalid Mahmood deceased. Thereafter the appellant left the spot raising Lalkaras. Khalid Mahmood died at the spot.
8. Abdul Sattar P.W. Was removed to the hospital at Khanewal. Abdul Jabbar P.W. Went to the police station, where he lodged the F.I.R. Exh, PK.
9. Dr. Abdul Malik (P.W.1) medically examined Abdul Sattar P.W. At 3-45 p.m. On 29-1-1986 and found on his person the following injuries:--
(1) Incised wound 2.5 c.m. On upper part of left ear, cutting the car from above downward.
(2) Incised wound 1 c.m. x 0.5 c.m. Going skin deep on the outer side of left upper arm, 6 c.m. Above the left elbow joint corresponding cut mark present on Kameez.
(3) Incised wound 3 c.m. x 0.5 c.m. On the back of right chest 17 c.m. Below the right shoulder and 3.5 c.m. From the posterior mid line, corresponding cut mark present on the Kameez. The wound was going deep.
(4) Fire arm wound 1 c.m. x 0.5 c.m. With blackish area around the wound. The wound was superficial, the wound was on back and outer side of left chest, 13 c.m. Below the left shoulder, He found that his pulse was 104 p.m. And B.P. Was 95/65 M.M. Of Hg. Injuries Nos.1 to 3 were caused by sharp-edged weapon and injuries Nos.4 by fire-arm. Injuries Nos.1 and 3 were X-rayed but no bony injury was seen. Injury No.1 had caused disfigurement of face and was declared grievous. The rest were declared simple. Exh. P.A. Is a copy of the medico-legal examination of the injuries of Abdul Sattar P.V1i ,
10. When cross-examined by the learned defence counsel Dr. Abdul Malik stated that he had brought the register relating to the medico-legal examination of Muhammad Ishaque appellant.
He had examined him on 29-I-1988 and had found the following injury on his person:-- Fire-arm wound 0.7 c.m. x 0.7 c.m with reddish area around the wound on the front and lateral side of left chest, 6 c.m, above and lateral to left nipple. The edges of the wound were inverted and blackish, the wound was going deep. Corresponding marks were present on Kameez and Bunyan.
On palpation crepitus was present on whole of front and lateral side of left chest and on front of right side of chest.
At that time his pulse was 100 p.m. B.P. 1(10/65 M.M. Of Hg and he was breathless. According to the Doctor, the injury was kept under observation; it was a fire-arm injury. Probable duration between the injury and examination was 2 to 4 hours. Exh.D.A. Is a copy of his medico-Legal report. The Doctor stated with reference to the X-ray that no bony injury was seen but there was evidence of "surgical emphysema with shadow of metallic bullet" and therefore, the injury was declared grievous. Exh. D.A./1 is a copy of his opinion and Exh. D.B./1 is a copy of the "final result" relating to the injuries of Muhammad Ishaque. In answer to a question by the learned defence counsel, the Doctor stated that "the injuries on the person of the deceased recorded by me and on the person of Abdul Sattar and also recorded on the person of Ishaque accused appear to have been inflicted at one and the same time". Dr. Abdul Malik also performed the forensic post-mortem examination of the dead body of Khalid Mahmood deceased on 30-1-1988. He noticed the following injuries on the dead body:--
(1) Fire-arm wound 1-1/2 c.m. x 1-1/2 c.m. On the upper and outer side of left neck, just on the mestoid, with inverted margine.
(2) Contusion 4 c.m. x 2 c.m. On front and middle part of head 13 c.m. Above the root of nose.
(3) Contusion 2 c.m: x 1 c.m. On the left side of head, 1 c.m. Above the left ear.
(4) Fire-arm wound 1 c.m. x 1 c.m. Oval in shape with inverted and burnt margine on the upper and lateral side of right chest anteriorly 5 c.m. Below and lateral mid of clavical (right).
(5) Fire-arm injury 1 c.m. x 1 c.m. Oval in shape with inverted and burnt margine on upper part .Of right chest anteriorly 1.5 c.m. Below and slightly lateral to injury No.4.
(6) Fire-arm wound 1 c.m. x 1 c.m. On the upper and anterior part of right side of chest, 4.5 c.m.
Below and medial to injury No.4.
(7) Fire-arm wound 1 c.m. x 1 c.m. On the anterior and upper part of right side of chest 0.5 c.m.
Medial to injury No.6 with inverted and burnt margine.
(8) Fire-arm wound 1 c.m. x 1 c.m. On the anterior and upper part of right side of chest 0.7 c.m.
Medial and slightly above the injury No.7 with inverted and burnt margine.
(9) Fire-arm wound 1 c.m. x 1 c.m. On anterior and upper part of left chest oval in shape with inverted and burnt margine, 5 c.m. Lateral to mid sternum.
(10) Fire-arm wound 1 c.m. x 1 c.m. Oval in shape with burnt margine on anterior and middle of left side of chest 10 c.m. Below the injury No.9.
(11) Fire-arm injury 1 c.m. x 1 cm. Oval in shape with inverted and burnt margine on anterior and lower part of left side of chest, 7 c.m. Below the left nipple.
(12) Fire-arm wound 1 c.m. x 1 c.m. Oval in shape with inverted and burnt margine on anterior and lower part of right side of chest 11 c.m. Below the injury No.6.
(13) Incised wound 3 c.m. x I c.m. Muscle deep on outer and upper part of left shoulder.
(14) Contusion mark with deformity and fracture of the bone (left humerus) in the middle part of the left arm.
(15) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. With everted margine on the back and lower part of left chest; 14 c.m. Below the lower end of left scapula (wound of exit).
(16) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. With everted margine on the back and lower part of right chest, 1 c.m. Below the lower end of right scapula (wound of exit).
(17) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. With everted margine on the back and lower part of right chest, 4 c.m. Below and lateral to injury No.16 (wound of exit).
Injuries Nos.1 and 4 to 12 were all fatal "and could cause death individually as well as collectively".
Injury No.14 was grievous and injuries Nos.2, 3 and 13 were simple.
11. On dissection fracture of third rib on right side was noticed; both lungs and pleura were found punctured "with massive collection of clotted blood in the thorax". Pericardium and left ventrical of heart were found punctured and the heart chambers were empty.
12. In the opinion of the Doctor, death was due to severe haemorrhage, leading to shock resulting from damage to heart and lungs and this was sufficient in the ordinary course of nature to cause death. Time between injuries and death "could be sudden within half an hour" and time between death and post-mortem examination was about 24 hours.
13. The case was investigated by Allah Ditta Inspector (P.W.9). After recording the F.I.R. Exh.P.K, he reached the spot, prepared the injury statement Exh.P.L. And the inquest report Exh.P.M. In respect of the dead body and had the dead' body sent for post-mortem examination. He collected blood- stained earth and made it into a parcel vide memo Exh.P.E. He found two crime-empties P.7/1-2 at the spot and made them into a parcel vide memo Exh.P.F. .
14. He then went to the hospital, where he recorded the statement of Abdul Sattar P.W. After obtaining the opinion of the Doctor vide memo Exh.P.N. He also took into possession blood-stained clothes of Abdul Sattar vide memo. Exh.P.G.
15. Allah Ditta Inspector arrested the appellants, Ghulam Muhammad, Shaukat Hayat and Ejaz, on 5-2-1988.
16. On 16-2-1988, Ghulam Muhammad, appellant, led to the recovery of knife P.12 and he took it into possession vide memo Exh.P.H. On the same day, the appellant, Shaukat Hayat, led to the recovery of .12 bore gun P.13 and he made it into a parcel vide memo Exh.PJ. On 19-2-1988, Muhammad Ishaque, appellant, appeared before him and he arrested him. He had the site plans Exhs.P.D. And P.D./1 prepared. He also obtained copies of Jamabandi and Khasragirdawri Exhs.P.O. And P.O.
17. In cross-examination, Allah Ditta Inspector said that he had reached the hospital at about 5-30 p.m. At that time, it was not brought to his notice that Muhammad Ishaque, appellant, lay admitted in the hospital. He admitted that on 30-1-1988, the D.S.P. Had visited the spot; that he had accompanied the D.S.P. And that 43 persons had appeared in support of the defence version, namely, that "aggression was committed by Sattar and Khalid deceased against them and that according to him First fire was shot by the deceased Khalid which hit him in the chest"; that "he had caused injuries to Khalid Mahmood and Abdul Sattar in his self defence with his small knife" and that "the injuries with fire arm on the person of the deceased and Abdul Sattar P.W. Were in result of the firing by Iqbal Nai". On 2-2-1988, one Dost Muhammad made application Exh.D.E. Before him on behalf of Muhammad Ishaque, appellant This was accompanied by his medico-legal certificate.
He had recorded the statement of Muhammad Ishaque, appellant under section 161 of the G.P.C.
On 3-2-1988 in the hospital. He admitted also that Muhammad Ishaque, appellant "was found admitted in the hospital since 29-1-1988."
18. At the trial, the prosecution called 9 witnesses in support of its case; they included Dr. Abdul Malik (P.W.1) and Allah Ditta Inspector (P.W.9). The ocular account of the occurrence was given by Abdul Sattar (P.W.8) and Abdul Jabbar (P.W.7); they were father and son. As noticed above, Khalid Mahmood deceased was also a son of Abdul Sattar P.W.
19. The evidence of the remaining P.Ws. Can be shortly dealt with as follows. Muhammad Aslam A.S.I. (P.W.2) had kept the sealed parcels in safe custody and had delivered them intact to Muhammad Rafique Constable for being taken to Lahore. Muhammad Rafique Constable (P.W.3) had escorted the dead-body of Khalid Mahmood from the place of occurrence to the mortuary. On 4-2-1988, he had delivered two scaled parcels, one containing blood-stained earth and the other containing-crime empties at the offices of the Chemical Examiner and Forensic Science Laboratory respectively. On 17-2-1988, he had delivered the parcel containing the gun of Shaukat Hayat, appellant, safely at the office of the Forensic Science Laboratory. Abdul Ghafoor Patwari (P.W.4) had prepared the site-plans Exh.P.D. And Ex.P.D./1 in the scale of 16 karams to an inch. Aalam Khan (P.W.5) had joined investigation and had witnessed the collection of blood-stained earth and the empties P 7/1-2 from the spot vide memo Exh.P.F. He had also identified the dead body of Khalid Mahmood deceased at the time of post-mortem examination. Mushtaq Khan (P.W.6) testified that Ghulam Muhammad, appellant, had led to the recovery of knife P.12 and that Shaukat Hayat, appellant, had led to the recovery of gun P.13 vide memos Exhs.P.H. And P.J. Respectively.
20. The prosecution also tendered in evidence the Chemical Examiner's report Exh.P.R., Serologist's report Exh.P.S. And the report of the Forensic Science Laboratory Exh.P.T. Exh.P.T. Shows that the empties P.7/1-2 were found to have been fired from the gun P.13 of Shaukat Hayat, appellant.
21. It is also note-worthy that the learned Prosecutor had, by his statement dated 13-3-1989, given up Ghulam Muhammad and Muhammad Amir P.Ws. "as being won over". These two persons were later, on the application of the appellants, examined as Court witnesses.
22. In their statements under section 342 of the Cr.P.C. The appellants, Shaukat Hayat, Ejaz and Ghulam Muhammad, denied their participation in or even presence at the time of, the occurrence: Shaukat Hayat and Ghulam Muhammad, appellant, also denied the recovery of gun P.13 and knife P.12 from them, They did not give evidence on oath under section 340(2) of the Cr.P.C. And did not lead any evidence in defence either.
23. It should be mentioned here that the statements under section 342, of the Cr.P.C. Of the appellants were recorded on 25-3-1989. On 3-4-1989 a written application was made by Ghulam Muhammad, appellant, saying that in his statement under section 342 of the Cr.P.C. "in reply to question 9, my reply has inadvertently been written that I was not present at the time of occurrence" and praying that "my statement may kindly be recorded". Accordingly, a supplementary statement under section 342, of the Cr.P.C. Of Ghulam Muhammad, appellant, was recorded. In that statement, he said with reference to question No.9 in his first statement under section 342 of the Cr.P.C.
"I was present at the time when Khalid Mahmood and Abdul Sattar came there, Khalid Mahmood fired at Muhammad Ishaque and soon thereafter I ran away and that I did not sec the rest of occurrence".
24. It is note-worthy that question No.9 was:-- "Is it a fact that Ejaz Hussain fired from his revolver and injured Khalid and then you caused injuries with your knife to Khalid deceased". and its answer was:-- "I was not present at the time of occurrence".
25. Both in his statement under section 342, of the Cr.P.C. And in his statement on oath, Muhammad Ishaque, appellant, gave his own version of the incident. It was, to quote from his statement on oath, as follows:- "About thirteen months ago, it was Juma prayer time. We are two brothers, the name of my other brother is Shaukat Hayat who is also accused in this case. Besides me Ghulam Muhammad accused was present in Square No.55, we were ploughing field through the tractor, Khalid Mahmood deceased and Abdul Sattar P.W. Came there. Khalid Mahmood on coming there abused me and stated that he is going to teach a lesson about registration of case of Zina of Mst. Azizan against them. I in return also abused him, therefore, Khalid fired at me with a revolver which hit at my chest on the left side near my nipple, he was going to fire a 2nd shot which missed, I had a knife with me, I took out the same and caused injury on his person on the left shoulder. Thereafter I gave him two fist blows and one kick blow. I tried to catch the revolver so that he may not fire another shot. Abdul Sattar came there, he tried to release his son from my hand and tried to remove my grip from the hand of the deceased in which he was holding the revolver. In the process, I dealt three knife blows on the person of Abdul Sattar. I got a push and fell down backward. Khalid deceased tried to aim at me another shot when in due course Iqbal Nai came, he fired which hit Khalid and Abdul Sattar, both fell on the ground. The occurrence was watched by Muhammad and Amir. In the Court premises Alam Khan, Ghulam Qasim brother of Aalam Khan are present, also uncle of Mushtaq P.W., Muhammad Nawaz Khan is present, they are my opponent. I was medically examined. The document Ex.DE bears my thumb impression".
26. In his defence, he called Dr. Ahsan Mian (D.W.2), who stated that on 29-1-1988, he had X-rayed the injury of Muhammad Ishaque, appellant, and made report Exh.DH. Which is a photo copy of the original report. According to his report, "the accused was suffering from surgical emphysema and there was shadow of metallic bullet in the chest". He admitted that he had not "gone through any course in order to hold the job of Radiologist". The X-ray was obtained on 29-1-1988 and its result was given on 18-2-1988. In the meantime, the X-ray had remained with him. In answer to a Court question as to the presence of the bullet in the body, he said that it was a bullet for the reason that its shape was like bullet". When asked to affirm or deny "that the object in question was above the bone", he could not " say about it inasmuch as, surgical emphysema cannot be given without opening of the theorax capacity of the pleaura". When asked if he had brought the X-rays in question, he said: "I have seen the X-ray annexed with the file, I cannot say as if it is the same X-ray which was drawn by me for the purposes of opinion. Inasmuch as, the same does not bear my signatures."
27. As has been noticed above, Muhammad Amir and Ghulam Muhammad P.Ws were given up as having been won over and on the request of the appellants, they were called as Court witnesses, Muhammad Amir as C.W.1 and Ghulam Muhammad as C.W.2. The purport of their testimony was as follows. Muhammad Amir had his cattle-shed near the place of occurrence, where he and Ghulam Muhammad were present. They heard an alarm. They saw that the appellants, Muhammad Ishaque and Ghulam Muhammad, were ploughing their land with a tractor and Khalid Mahmood deceased and Abdul Sattar P.W. Were abusing them and advancing towards Muhammad Ishaque etc. Khalid Mahmood deceased said that they had the case relating to Mst.
Azizan "on the allegation of Zina Biljabar" registered and that he was going to teach a lesson to them. When he was at a distance of 2 or 3 karams from Muhammad Ishaque, appellant, Khalid Mahmood deceased gave abuses to Muhammad Ishaque; Muhammad Ishaque, appellant, returned the abuses. Thereupon Khalid Mahmood deceased pulled a pistol from his Dub and fired at Muhammad Ishaque, appellant, hitting him in his chest. Khalid Mahmood deceased "attempted second time" but it missed. Muhammad Ishaque, appellant, had a small knife with him. He dealt a knife blow to Khalid which struck him on left side of the chest , .. ... ... ... ... ... ... Thereafter Ishaque dealt a fist blow which hit his nose. Thereafter Ishaque dealt another blow which struck on the head of Khalid on the left side above the ear. In the meanwhile, Abdul Sattar P.W., father of Khalid Mahmood deceased, arrived and attacked Muhammad Ishaque, appellant. Abdul Sattar P.W. Was empty- handed. Muhammad Ishaque, appellant, "had held the pistol in the hand of Khalid with his left hand, with his right hand he dealt three knife blows on the person of Sattar. Ishaque accused saved himself and while running he fell at a distance of 2/3 karams". In the meanwhile, Iqbal Nai "came forward and he fired with a gun which hit Abdul Sattar and Khalid". Both Khalid and Abdul Sattar fell down. Ghulam Muhammad (C.W.2) went and informed Dost Muhammad Khan, an uncle of Muhammad Ishaque, appellant. The police arrived at 5-00 p.m. And he appeared before the police.
According to Ghulam Muhammad C.W. The police "took Bala Nai and the gun".
28. The learned trial Court held that despite the fact that the eye--witnesses were closely related to each other and to the deceased and their statements were not corroborated "by some any other witness", their presence at the spot could not be doubted and there was nothing to suggest "that they stated falsely or had the purpose to falsely involve the accused party". In the opinion of the learned trial Judge, the motive, as set up by the prosecution, was also proved. He dismissed the defence version that the complainant party had attacked the deceased because of the Zina case or that there could be no fight over the land because the land was government land and the lease of the appellants had come to an end some two years before the incident. If the appellants had no interest left in the land, so observed the learned trial Court, then why they were holding the same and cultivating it on the fateful day. The learned trial Judge was of the view that the C.Ws.
Muhammad Amir and Ghulam Muhammad were close relatives of Ghulam Muhammad, appellant, that the defence story, deposed to by them at the trial, was recorded after about six days of the incident. In his view, therefore, the C.Ws. Could not be believed, for in making statements for the accused, they were "motivated by the certain ulterior ends". In the opinion of the learned trial Judge, the nature of the injuries on the dead body and on the person of Abdus Sattar P.W. Was more consistent with the testimony of Abdus Sattar and Abdul Jabbar P.Ws. As to the manner in which Muhammad Ishaque, appellant, was able to cause injuries both to the deceased and Abdus Sattar P.W., this act of his appeared to the learned trial Court to be "somewhat a superman task", in that "he with one hand held a knife, caused injury on the person of the deceased and thereafter immediately he caused two fist blows resulting in injury Nos. 2 and 3 on the person of the deceased and also dealt a kick resulting in injury No.14 on the left arm". In the opinion of the learned trial Judge, it was not humanly possibly for him to "hold knife with one hand and to apply his blow with the same hand". Dealing with the injury of Muhammad Ishaque, appellant, and the evidence of Dr. Abdul Malik (P.W.1) on the point, the learned trial Judge held that it did not inspire confidence. "In the first instance the diametre of this fire-arm wound create doubt as if the same had been inflicted with a revolver keeping in view the diametres of the injuries relating to the deceased". The shot had been fired from a close range, yet Dr. Ahsan Mian (D.W.2) found no bony lesion. As to the presence of metallic object, the learned trial Judge observed with reference to the X-Ray that the same "did not penetrate through and through in result of the fire if any on the person of accused Ishaq, and the same was not fired at the deceased from the distance of one karam as deposed by D.W.1". There should, therefore, have been no blackening if the shot had been fired "from a distance of one karam in five and half feet". In any case, if the object had penetrated through and through, it must have injured the vital parts of the body of the accused including heart. The learned trial Court had also his doubts that if the appellant, Muhammad Ishaque, had suffered the injury in that manner, he would have been able to act as he claimed to have after receiving the injury. The learned trial Judge was also impressed by the recovery evidence, namely, recovery of empties P.7/1-2 and the gun P.13 and used that evidence as corroborative evidence, despite the fact that the recovery witnesses Alam Khan and Mushtaq P.Ws. Were the enemies of the appellants. The learned trial Judge was not inclined to believe that the gun P.13 was in fact the gun of Iqbal and had been taken into possession from him.
29. Having held the appellants guilty of the murder of Khalid Mehmood, the learned trial Court thought that there were mitigating circumstances justifying the imposition of the lesser penalty of life imprisonment; to quote him: "since the fatal injuries have been attributed individually to the accused Ishaq, Shaukat and Iiaz on the person of the deceased, as such, on the principle of equity three cannot be awarded death penalty.....".
30. Learned counsel or the appel an s argued t ha as it was a case of two versions that the version of the appellant, Muhammad Ishaq, that it was Khalid Mehmood, deceased, who had opened the attack with the revolver and actually injured him in the chest near the heart was given by him at the first opportunity before the police and, therefore, proof of motive assumed importance. In his view, as the eye-witnesses Abdul Jabbar and Abdul Sattar were not only closely related to the deceased but had also suppressed material facts, most important of them being the injury of Muhammad Ishaq, appellant, their evidence needed corroboration. He referred to the document Exh.D.E. And the documents Exhs.D.AA. To D.KK., which were copies of applications sent by Muhammad Ishaque, appellant, to the President of Pakistan, Prime Minister of Pakistan, Inspector General of Police and others, to point out that the appellants' version had consistently been that Khalid Mehmood, deceased, had attacked Muhammad Ishaque, appellant, and had injured him and that the shot which killed Khalid Mehmood was fired by Iqbal Nai. He pointed out that admittedly the appellants' lease of the Government land, where the occurrence took place, had expired some two years before the incident and they would not, therefore, be interested in breaking the Watt dividing Killa No.12. He referred to the evidence of Alam Khan P.W. Who said that the Banna had not been broken and the evidence of Allah Ditta, Inspector, who said that he had not noticed the broken Banna. Learned counsel for the appellants also referred to the evidence of Abdul Jabbar P. W.; he admitted that a case of Zina under the Hudood Ordinance had been registered on 20-10- 1987 against him, against Abdul Sattar and against the deceased man Khalid Mehmood in respect of one Mst. Azizan; that they had been arrested and that Ghulam Muhammad, appellant, was cited as a prosecution witness in that case. Abdul Jabbar P.W. Had also admitted that Muhammad Ishaque and Ghulam Muhammad, appellants, had opposed them in that case. In view of this admission, so contended the learned counsel, it was the complainant party who had a grudge against the appellants. Learned counsel stressed that the injury of Muhammad Ishaque, appellant, was proved by Dr. Abdul Malik (P.W.1), a prosecution witness, to whom it was not suggested that it was a self-suffered injury. These circumstances were, in the opinion of the learned counsel for the appellants, more consistent with the defence version. He argued also that Shaukat Hayat Khan, appellant, having pleaded innocence before the police, would not have led to the recovery of gun P.13. The presence of Abdul Jabbar P.W., it was argued, was doubtful, for if he were present, he too had been injured. Muhammad Amir P.W. Had admittedly a cattle-shed near the place of occurrence and he was, therefore, a natural witness to the incident.
31. Learned counsel for the complainant and the learned Assistant Advocate-General supported the finding arrived at by the learned trial Court. They referred to the statement under section 342, Cr.P.C. Of Ghulam Muhammad, appellant, where he had denied his very presence at the time of occurrence. They also referred to his supplementary statement and argued that as he had admitted his presence and had seen the deceased man Khalid Mahmood firing a shoe at Muhammad Ishaque, appellant he must have, if the were a truthful person, entered into the witness-box, particularly when he was attributed a specific role by the eye-witnesses. As Muhammad Amir and Ghulam Muhammad P.Ws. Were relatives of Ghulam Muhammad, appellant, and as Ghulam Muhammad, appellant, had himself not entered into the witness-box their evidence, which otherwise did not inspire confidence, deserved little credence. The story that it was on account of their false involvement in the case of Mst. Azizan that the complainant party had attacked the appellants, so argued the learned counsel, did not find any mention in the application, Exh.DE which application the appellants had made before the Investigation Officer on 2-2-1988. The absence of Iqbal Nai in the witness-box was also, so argued the learned counsel, fatal to the defence version. The learned Assistant Advocate-General was also of the view that the funding of the learned trial Court that the injury of Muhammad Ishaque was a fabricated injury received support from the fact that Muhammad Ishaque, appellant, was the first to reach the hospital which, in his opinion, shows that was all an arranged affair.
32. Learned counsel for the complainant also argued that 'equity`, which was the reason given by the learned trial Court for not awarding the normal penalty of death, is not recognised by law and in any case, it did not apply in the circumstances of this case. He also pointed out that the learned trial Judge had given no reason, whatever, for not making an order under section 54.1-A, Cr.P.C.
33. Both the parties were agreed as to the presence of Abdul Sattar P.W. At the time of occurrence, and that he had suffered injuries during the course of the incident. According to Abdul Sattar P.W., he had been injured because he had rushed to save his son Khalid Mehmood and laid himself upon him. This was, indeed, the natural conduct of a father. We have also no doubt about the presence of Abdul Jabbar. It may be that if Abdul Jabbar P.W. Had also intervened, he too would have suffered injuries. We would not therefore, attach any significance to the absence of injuries on his person. Nor do we think that that is a ground for holding that he had not eye-witnessed the occurrence. According to Abdul Sattar and Abdul Jabbar P.Ws., the appellants had used four different kinds of weapons in causing the death of Khalid Mehmood and in causing injuries to Abdul Sattar P.W.; they were a .32 bore revolver, a 12 bore gun, a sharp edged weapon and a blunt weapon. The post-mortem examination report shows that of the 17 injuries suffered by Khalid Mehmood, deceased, injury No.3 was a sharp edged weapon wound; injuries Nos.2, 3 and 14 were contused wounds; injuries Nos.4, 5, 6, 7 and 12 were fire-shoe wounds on the right side of the chest and injuries Nos.8, 9, 10 and 11 also fire shot wounds were on the left side of the chest and injuries Nos.15, 16 and 17 were exit wounds. According to Abdul Sattar and Abdul Jabbar P.Ws. Muhammad Ishaque and Shaukat Hayat Khan, appellants, had .12 bore guns, Ijaz, appellant, had .32 bore revolver and Ghulam Muhammad, appellant, had a knife. As to the blunt weapon injuries, the eye- witnesses said that in causing them, Shaukat Hayat Khan and Muhammad Ishaque appellants, had used the butts of their guns. Keeping in view the dimensions of injury No.1 and comparing the dimensions of that injury with those of the other fire-arm injuries, we are persuaded to think that injury No.1, which was 1-1/2 c.m. x 1-1 /2 c.m. On the left side of neck, was caused with a fire-arm of a different calibre from the weapon which caused the other fire-arm wounds. In this important respect, therefore, the testimony of Abdul Jabbar and Abdul Sattar P.Ws. Received full support from the injuries found on the dead body of Khalid Mehmood, deceased.
34. The question which must then be asked is whether Muhammad Ishaque, appellant, had suffered any injury in the course of the incident at the hands of Khalid Mehmood, deceased, with a revolver. Learned counsel for the appellants rightly argued that if the answer be in the affirmative, then that went all the way to establish the defence version; in that case, the appellants or any other person, that other person, according to them being their old Wafadar Kammi Iqbal Nai, (see Exh.D.E.) was entitled to cause the death of Khalid Mehmood and to cause injuries to Abdul Sattar P.W. In their self-defence. The dimension of the injury of Muhammad Ishaque was 0.7 c.m. x 0.7 c.m.
With reddish area around the wound on the front and lateral side of left chest, G c.m. Above and lateral to left nipple. The edges were blackish and the wound was going deep. We have our doubts that an injury of that dimension could result from a revolver shot. We should think that a revolver shot would have caused a much more serious damage; it would have caused an injury of at least such dimension as injury No.1 of the deceased was which we have seen, was 1-1/2 .c.m. x 1-1/2 c.m.
1f the edge of the wound were inverted and had become blackish as a result of a revolver shot, then it must have been from a very close range. Muhammad Amir C.W., however, said that the deceased had fired the shot from 2-1/2 karams and Muhammad Ishaque, appellant, said that the shot was fired from about one karam. Though the injury of Muhammad Ishaque, appellant, was so important from the defence point of view and it was said that he had remained admitted for some days in the Civil Hospital, Khanewal, and for a few days in Nishtar Hospital, Multan, yet the record of those hospitals as to his admission and the X-Rays was not brought on the record and we are left with the impression that the truth about the injury was allowed, and in our opinion deliberately allowed, to remain cloaked in a shroud of mystery. The opinion of Dr. Muhammad Ahsan Mian (D.W.2), who claimed to have X---rayed the injury when Muhammad Ishaque, appellant, was admitted in Civil Hospital, Khanewal, on 29-1-1988 deserves little consideration, for the original X- Ray was not brought and the X-Ray with reference to which he testified did not bear his signatures.
The report Exh.DH. Which he placed on the record, was a mere photo copy of the original. He had to admit in cross-examination that what was seen in the X-Ray was a bullet because its shape was like a bullet. Muhammad Ishaque, appellant, admitted that he was not operated upon. These facts, in our opinion, are more consistent with the injury of Muhammad Ishaque, appellant, being a fabricated injury. We agree with the learned Assistant Advocate-General in thinking that the promptness with which the appellant, Muhammad Ishaque, acted in reaching the hospital and failure of the accused party to go to the police station to report the incident was some evidence of the whole affair being a made up affair.
35. As this is a case in which according to the prosecution the appellant, Muhammad Ishaque, was not injured in the course of the incident, and we find ourselves persuaded to take that view, the prosecution was under no duty to explain his injury. In that view of the matter, we cannot think that mere absence of a suggestion to Dr. Abdul Malik that the injury was fabricated should detract from the truth of the prosecution's case. The prosecutor had probably found himself in a difficult situation; Dr. Abdul Malik was a prosecution witness but he gave his evidence as to the medical examination of Muhammad Ishaque, appellant, in cross-examination. As was suggested by learned counsel for the complainant, the prosecutor may have thought, wrongly perhaps, that to cross-examine the Doctor would amount to disowning him altogether. But Dr. Muhammad Ahsan Mian, D.W. When he appeared as a D.W., was cross-examined. In the circumstances of the case, failure of the prosecution to ask for permission to cross-examine Dr. Abdul Malik, cannot be treated as an admission of the fact that Muhammad Ishaq, appellant, had suffered the injury at the hand of the deceased.
36. As we hold that the appellant, Muhammad Ishaque, did not receive any injury in the course of the incident, we must hold also that it was not a case of two versions but was a mere attempt and as has been shown a vain attempt at creating a defence version. However that may be, as in the case of intention, so in the case of motive, you cannot look into the mind of the accused to find out what his motive was, that is to say, what was the emotion which prompted him to kill. It has been seen that one part of Killa No.12 was admittedly inpossession of one party and the other in possession of the other. That the appellants had been in possession of the Government land including Killa No 12, although their lease had ended shows their interest in retaining the land.
Cases are known, in which for years together people remain in possession of Government land without any right in the hope that they would be granted proprietary rights. This may well be one of those cases. Allah Ditta Inspector said that he had not noticed the broken Banna. But as we believe Abdul Jabbar and Abdul Sattar P.Ws., we see no reason to hold that no Banna was broken. Nor do we thinly that the false implication of Abdul Jabbar P.W., his father and the deceased etc. In the Zina case of Mst. Azizan, in which Ghulam Muhammad, appellant, was an eye-witness, had moved the complainant party to attack. Had that been the case, they would have made preparation and adequately equipped themselves with weapons. In that case, Ghulam Muhammad, appellant, who was an eye-witness in that case, would have been the first to be attacked. There is no evidence that Mst. Azizan was, in any way, related to the appellants. That they had helped the party of Mst.
Azizan in that case could be because they belonged to one village faction and the complainant party belonged to the other.
37. The prosecution case, as regards Shaukat Hayat, appellant, received corroboration from the recovery of gun P.13 from him; as has been seen, the empties P.7/1-2 were found to have been fired from that gun. Mushtaq P.W., the only public witness of the recovery of gun P.13, admitted his enmity with the appellants but that alone is not, in the circumstances of the case, sufficient to make the recovery doubtful. No weapon of offence was planted upon Muhammad Ishaque and Ejaz, appellants, and we see no reason why one should have been planted upon Shaukat Hayat, appellant. It was said that the empties P.7/1-2 were fabricated and in that connection, reference was made to the admission of Alam Khan (P.W.5), who said that he had not noticed them, when he left the spot to accompany Abdul Jabbar P.W. To the police station. But he was not expected to inspect the spot from that point of view. Alam Khan P.W. Also admitted his enmity with the appellants. But we find no reason to disbelieve Allah Ditta Inspector on the point of these recoveries. In any case, there is no basis, in fact, for holding that the gun P.13 was, in fact, the gun of Iqbal Nai.
38. The defence version as given by Muhammad Ishaque, appellant, in his statement under section 342 of the Cr.P.C. And in his statement on oath, namely, that he was attacked by Khalid Mahmood with a revolver, that after having been hit with a revolver shot from a close range on such vital part of his body as chest near the heart, he was able not only to defend himself but to move forward and to cause injuries to Khalid Mahmood deceased and his father with a knife, with fists and kicks, that when the appellant, Ishaque, moved forward, the deceased was, as if mesmerised, not able to use his revolver, that Muhammad Ishaque, appellant, had used his fists and kicks so effectively as to cause a fracture of the deceased's arm, and that the shots which killed the deceased and injured Abdul Sattar, were fired by a man, Iqbal Nai, who came as if out of the blue, makes great demand upon one's sense of credulity. In our opinion, it is sufficient to read that version to reject it.
Muhammad Amir and Ghulam Muhammad C.Ws. Were not cited as eye--witnesses in the F.I.R.
They were introduced as eye-witnesses in the course of the investigation. They were close relatives of Ghulam Muhammad, appellant. Ghulam Muhammad, appellant is married to a sister of Ghulam Muhammad C.W. And the latter's sister is married to Ghulam Muhammad, appellant. Ghulam Farid is maternal uncle of Ghulam Muhammad (C.W.2) and Mst. Miran; a sister of Muhammad Amir C.W., was the wife of the said Ghulam Farid. Another sister of Muhammad Amir C.W. Is married with Ghulam Hussain, a maternal uncle of Ghulam Muhammad C.W. Muhammad Amir C.W. Admitted that he cultivated land as tenant of Niaz Gul and Baz Gul but denied that Niaz Gul anti Baz Gul were relatives of the appellants. Muhammad Ishaque, appellant, however, gave him a lie on the point by admitting his relationship with Baz Gul. The last but not the least was the fact that Iqbal Nai, who was the central figure in the defence story and upon whose role in the incident turned the entire defence case, was not called as witness at all. If that old faithful Kammi had gone to the length of killing Khalid Mahmood for the appellants' sake, which fact one must strain one's sense of credulity to a breaking point to believe, he should have had the courage to testify to that fact in Court.
39. We may conclude our survey of the evidence with the observation that though the burden of establishing guilt is on the prosecution, yet the Court must also consider the evidence for the defence, which may have one of the, three results; it may convince it of the innocence of the accused, or it may cause it to doubt, in which case the accused is entitled to an equittal or it may and sometimes does strengthen the case for the prosecution. (See Bullard v. Queen) (1957) A.C.
635,645 (P.C.). This, in our opinion, is one of those cases; in which the defence evidence, by its inherent improbabilities, lends strength to the prosecution's case.
40. That takes us to the contention raised by learned counsel for the complainant and adopted by the learned Assistant Advocate-General relating to the failure of the appellants, other than Muhammad Ishaque, particularly Ghulam Muhammad, appellant, to give evidence on oath.
41. Section 340 of the Code of Criminal Procedure, as it then stood, was substituted by the Law Reforms Ordinance, 1972 the substituted section made an accused person a competent witness for the defence and provided that "he may give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial".
By its proviso, it enacted among others (i) that he shall not be "called as a witness except on his own request" and (ii) that " his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against him or any person charged or tried together with him 8 at the same trial". This section read with section 342 of the Cr.P.C.
Produced this result that the accused had the option of either making an unsworn statement under section 342 of the Cr.P.C., on which he could not be cross-examined or of giving evidence on oath and thereby submitting himself for cross-examination too. As will be presently seen, this was the option; which the accused person had enjoyed in England since the Criminal Evidence Act, 1898, which made persons accused competent, though not compellable, witnesses in their own defence.
42. Section 340 of the Cr.P.C. Was again substituted by the present section 340 by Ordinance XII of 1985 Act. As it stands now, it says that "any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court shall, if he does not plead guilty, give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial.
43. There had been a divergence of judicial opinion on the effect of section 340(2) of the Cr.P.C. The effect of that section was considered with reference to the fundamental right enshrined in Article 13 of the Constitution by the Supreme Court in Ameer Khatoon v. Faiz Ahmad and others PLD 1991 SC
787. It was held: "Finally, the Constitution provides that an accused shall not be compelled to make a statement on oath and this is guaranteed to him by way of a Fundamental Right. Any law providing otherwise would be ultra vires. Any interpretation of the law contravening it cannot be allowed to stand.
Consistency with the paramount law, therefore, demands that subsection (2) of section 340 should be interpreted as only conferring a duty or a power on the Court to inform the accused that he has a right under the law to make a statement on oath and it is his option with no risk attaching it to either make that statement or not to make that statement"; and that "the view that on the strength of these provisions the accused can be compelled to make a statement on oath or that on his failure to do so he can be sent to prison or that adverse inference can be drawn against him is not correct".
44. As the law is developed on a case to case basis, we take this opportunity to make the. Following observations on the point.
45. The system, under which Criminal Courts hold trials under the Code of Criminal Procedure, 1898, is adversarial in character, and so is we venture to think, the position under the Islamic system, which system permits the heirs even to waive their right of Qisas. Our system, like the English system of Criminal Procedure, has been conceived of as an action between a plaintiff and a defendant to be tried by a process substantially similar to that employed in any other action. (Per Lord Morris of Borth-y-Gist in Connelly v. D.P.P. (1964) A.C.1254, 1304.
46. In the common law world, Maine, a State in the United 'States of America, became, in March, 1864, was the first jurisdiction to permit one accused of crime to testify in his own behalf by providing in Me. St. 1864, c.280 that "in the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offences, the person so charged shall at his own request, but not otherwise, be deemed a competent witness" but that "nothing herein contained shall be construed as compelling any such person to testify". In the application of that section, one of the questions that arose was whether that provision was in contravention of the Bill of Rights which provided that "the accused shall not be compelled to furnish or give evidence against himself'. A practical difficulty, which was suggested, was that "if he does not avail himself of the opportunity offered, an unfavourable influence arises, and, if he does and tells the truth, he must convict himself and, therefore, he is between two straits". In one case, it was held that from this it by no means followed that "the Act is in conflict with the rule referred to in the Bill of Rights"
(See 55 Me. 200 (1867). In another case, State v. Cleaves (59 Me.298, (1871), Chief Justice Appleton had the following observations to make: "The defendant, in criminal cases, is either innocent or guilty. If innocent, he has every inducement to state the facts, which would exonerate him. The truth would be his protection. There can be no reason why he should withhold, it, and every reason for its utterance....
But the defendant, having the opportunity to contradict or explain the inculpative facts proved against him, may decline to avail himself of the opportunity thus afforded him by the law. His declining to avail himself of the privilege of testifying is an existent and obvious fact. It is a fact patent in the case. The jury cannot avoid perceiving it. Why should they not regard it as a fact of more or less weight in determining the guilt or innocence of the accused? All the analogies of the law are in favour of their regarding this as an evidentiary fact..... ..... If he does not avail himself of the privilege of contradiction or explanation, it is his fault; if, by his own misconduct or crime, he has placed himself in such a situation that he prefers any inference which may be drawn from his refusal to testify, to those which must be drawn from his testimony if truly delivered".
After this provision took effect, the Court attorneys, where the accused did not elect to testify, were allowed in arguments to comment on the fact to the jury. "This practice continued for 15 years; and, while it operated favourable for innocent persons, it resulted disastrously to the guilty who would not add perjury to the crime charged. Thereupon the Legislature, believing that the constitutional provision which declares that the accused shall not be compelled to furnish or give evidence against himself, `------like the rain descending upon the innocent and guilty alike, and looking to a more careful protection of this right, enacted that `the fact that the defendant in a criminal prosecution does not testify in his own behalf shall not be evidence of his guilt' (See State v Banks- 78 Me. 490 (1886).
47. It has always been recognized that the right of the accused to testify was given to help the innocent. Indeed, it made life more difficult for the guilty. Gradually, however, it seems that the force of an inference from not testifying came to be considered the equivalent of compelling the accused to furnish or give evidence against himself, and, therefore, repugnant to the self--- incrimination guarantee of the Fifth Amendment. In this connection, reference may be made to Eddie Dean Griffin v. State of California (380 U.S. 609).
48. In England, the law does not appear to have developed on the same line. There, the accused persons were given the right to testify by the Criminal Evidence Act, 1898; that Act first made persons accused of felony, competent, though not compellable, witnesses in their own defence.
"English Law has always recognized the right of the deciders of fact in a criminal trial to draw inferences from the failure of a defendant to exercise his right to give evidence and thereby submit himself to cross-examination". Thus, in the Queen v. Sharmpal Singh (1962) A.C. 188, the accused person had pressed his wife's neck much too hard when engaged in the act of sexual intercourse, but had given no explanation for it; the Privy Council held:-- "But there is no explanation; and the prisoner's silence is emphasised by his consequent conduct.
How did he come to squeeze his wife's throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence, it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified".
49. Haw Tua v. Public Prosecutor and others (1981) 3 All ER 14, a case from Singapore, is directly in point. There by section 188 (2) of the Criminal Procedure Code as amended by an Amending Act, 1976, it was provided:-- "Before any evidence is called for the defence, the Court shall tell the accused that h, will be called upon by the Court to give evidence in his own defence and shall tell him in ordinary language what the effect will be if, when so called upon, he refuses to be sworn or affirmed, and thereupon the Court shall call upon the accused to give evidence".
Section 195 of that Code provided:-- "(1) In any criminal proceedings except an inquiry preliminary to commital for trial, the accused shall not be entitled to make a statement without being sworn or affirmed, and accordingly, if he gives evidence, he shall do so on oath or affirmation and be liable to cross-examination; but this subsection shall not affect the right of the accused, if not represented by an advocate, to address the Court otherwise than on oath or affirmation on any matter on which, if he were so represented, the advocate could address the Court on his behalf.
(2) If the accused---(a) after being called upon by the Court to give evidence or after he or the advocate representing him has informed the Court that he will give evidence, refuses to be sworn or affirmed; or (b) having been sworn or affirmed, without good cause refuses to answer any question, the Court, in determining whether the accused is guilty of the offence charged, may draw such inferences from the refusal as appear proper.
(3) Nothing in this section shall be taken or render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of Court by reason of a refusal to be sworn or affirmed in the circumstances described in paragraph (a) of subsection (2)".
One of the questions raised was whether the requirement that the accused person shall be called upon to give evidence on oath amounted to compelling him to be a witness against himself.
Referring to section 195(2), which provided expressly that "the Court may draw such inference as may appear proper from the failure of the accused to give evidence on oath", their Lordships of the Privy Council held that this had made no change in the existing law:-- "The Criminal Procedure Code was previously silent on the matter, and' consequently section 5 made applicable the law of England relating to criminal procedure where it was not inconsistent with the Code. English law has always recognized the right of the deciders of fact in a criminal trial to draw inferences from the failure of a defendant to exercise his right to give evidence and thereby submit, himself to cross-examination. It would in any event be hopeless to expect jurors or Judges, as reasonable men, to refrain from doing so. Although the Criminal Evidence Act 1898 prohibited the prosecution itself from inviting the jury to draw inferences from the accused's failure to testify in his own defence, it did not prohibit Judges from commenting on such failure; very often the Judge did comment and draw to the attention of the jury inferences that they might properly draw, if they thought fit, from the failure of the accused to go into the witness-box to contradict the evidence of the prosecution on matters that were within his own knowledge or to displace a natural inference as to his mental attitude at the time of the alleged offence that, in the absence of some other explanation, would properly be drawn by any reasonable person from his conduct at that time".
Their Lordships went on to hold that "what inferences are proper to be drawn from an accused's refusal to give evidence depends on the circumstances of the particular case, and is a question to be decided by applying ordinary common sense". Referring to section 195(3) of Singapore Code, their Lordships observed: that that section "makes it clear that the accused has a legal right to refuse to give evidence at his trial; no legal sanctions can be imposed on him if he chooses to remain silent. It is only if he elects to give evidence that he exposes himself to the risk of being compelled, under threat of legal sanctions, to answer questions put in cross-examination which, if answered truthfully, might tend to show that he was guilty of the offence with which he was charged".
50. Dealing with the contention that "the procedure for which section 188(2) provides for calling on the accused at the conclusion of the prosecution's case to give evidence and informing him of the consequences of a refusal to do so has the practical effect of putting the accused under a compulsion to give evidence no less than if he were compelled by law to do so, despite his being told in the course of the standard allocation that he is not", their Lordships held:-- "There is, however, in their Lordships' view, no substance in the appellants arguments. The accused is not compelled in law to give evidence on his own behalf. Section 195(3) says so, and section 188(2) requires that the. Accused be told so. Even before section 195(1) withdrew the former option to make an unsworn statement, instead of going into the witness box to give evidence, the accused, if he were properly advised by counsel, would be aware that adverse inferences might well be drawn if he failed to go into the witness box, the strength of those inferences depending on the nature of the evidence that had been adduced against him in the particular case. This in itself would be a strong inducement to an accused to give evidence, particularly he were innocent. The only added inducement consequent on the removal of the option is the withdrawal of the hope that he can get away with a story the truth of which cannot be tested by cross-examination. The inferences that the Court may draw from his failure to testify are not enlarged by the amendments to Code; they are limited, as they have always been, to such inferences as appear to the decider of fact to be proper in the particular case having regard to all its circumstances."
51. Their Lorships added:-- "Inducement there is and always has been since the accused first became a competent witness on his own behalf; compulsion there is not. Their Lordships have no doubt at all that the amendments to the Criminal Procedure Code made by the 1976 Act are consistent with the Constitution of Singapore and are valid".
52. It is to be noted that in the Singapore Constitution, there is no such clause providing for protection against self-incrimination, as is afforded to accused persons in Pakistan by Article 13 of the Constitution. The argument in Haw's case was founded upon "a fundamental rule of natural justice", namely, that the procedure ire section 188 of the Criminal Procedure Code, Singapore, of calling on the accused at the conclusion of the prosecution case to give evidence and informing him of the consequences of refusal to do so had the practical effect of compelling the accused to give evidence. In that connection, their Lordships had the following observations to make:-- "Nevertheless, in considering whether a particular practice adopted by a Court of law offends against a fundamental rule of natural justice, that practice must not be looked at in isolation but in the light of the part which it plays in the complete judicial process. Their Lordships accordingly recognise that the fact that; under a system of justice in which the Court itself is invested with what are in part inquisitorial function, compelling an accused to answer questions put to him by a Judge would not be regarded as contrary to natural justice does not necessarily justify compelling the accused to submit to- hostile interrogation by the prosecution at a trial in which the procedure is predominantly, if not exclusively, adversarial".
53. For the above reasons, we hold that the appellants were rightly convicted under sections 302 and 324 read with section 34 of the P.P.C. We are also of the opinion that the sentences of Shaukat Hayat, Ejaz and Ghulam Muhammad alias Watni, appellants, do not call for interference, except that an order under section.544-A of the Cr.P.C. Should have been made in the case of Shaukat Hayat and Ejaz, appellants. We are, however, convinced that the appellant, Muhammad Ishaque, played the leading role in the commission of the offence. This view gains support from the finding that he had gone to the lenght of fabricating an injury on his person to enable him and his co- accused to take a false plea of self defence.
54. We, therefore, enhance the sentence of Muhammad Ishaque, appellant, under section 302 read with section 34 of the P.P.C. To death and direct that he be hanged by the neck till he is dead. We are also of the opinion that an order under section 544-A of the Cr.P.C. Should be made as regards the appellants, Muhammad Ishaque, Shaukat Hayat and Ejaz The learned trial Court gave no reasons for not making an order under that section. We, therefore, direct that the appellants, Muhammad Ishaque, Shaukat Hayat and Ejaz, shall each pay Rs.20,000 as compensation to the heirs of Khalid Mahmood deceased and shall, in default of payment, suffer imprisonment for a Period of sit months S.I. Ghulam Muhammad alias Watni, appellant, was a tenant of these appellants and we do not, therefore, think that in his case an order under that section should be made.
55. With these modifications, the appeal is dismissed. The revision petition is accepted in the terms mentioned above.
M.B.A./M-476/L