By a short order dated 18-1-1996 appeal of Taj Bahadur son of Sher Bahadur convicted and sentenced under section 302/34, P.P.C. By the learned Additional Sessions Judge, Karachi (East) vide his judgment dated 21-12-1993 was allowed by setting aside his conviction and sentence while appeal of Abdul Rehman son of Muhammad Aslam in the same case was dismissed by maintaining his conviction and sentence. The reasons for passing the said order and other details of the case are embodied in the forthcoming paragraphs.
BRIEF HISTORY OF CASE
2. The facts disclosed by P.W. Abdul Lateef in his statement under section- 154, Cr.P.C. Dated 2-10- 1984 and reflected ,by the records radiate as under: The complainant Abdul Latif, appellant Taj Bahadur alias Taji and his wife Mst. Shah Jehan were residing in Chishti Compound Malir City in the adjoining house. Accused Taji was serving as a Chowkidar of the compound. About a month back from the date of incident Mst. Rani brought a young boy (the co-appellant Abdul Rehman) to her house who later on started visiting her house frequently. The complainant and other Mohallah people strongly objected by considering the said boy as paramour of Mst. Rani while she claimed that she had adopted the said boy as her brother.
On the day of incident, at about 7-00 p.m. Complainant Mst. Jamila and Zahida (wife and daughter of the complainant respectively) were sitting outside the door of their house while his son Javed aged about 25 years was standing at the door when Taj Bahadur, Abdul Rehman (both appellants) and Mst.Rani arrived there. Mst. Rani pointed out toward Javed and asked the two appellants to finish him. Taj Bahadur caught hold of Javed while Abdul Rehman gave him 3/4 dagger's blows on his chest, arm and neck. The complainant and his family rushed to rescue Javed during which Mst.
Rani gave two fist blows to Mst. Jamila on her face and injured her. Javed was rescued but was found seriously injured. The incident was witnessed by several persons such as Manzoor Elahi, Muhammad Sarwar, Dr. Lateef, Master Arbab Sindhi Khan Bahadur and Inam Elahi as well as by several other persons. On seeing them all the three accused ran away. Injured Javed was taken to Jinnah Hospital but he died near the gate of the Hospital. Police was informed by the doctors. S.I.P.
Akhtar Hussain reached the hospital and recorded statement of the complainant besides preparing several other documents.
3. After usual investigation, challan was submitted against three accused persons mentioned in F.I.R. No.211 of 1984. Mst. Shah Jehan alias Rani was shown as an arrested accused while the male accused (the appellants) as absconders in the charge- sheet. Charge against Mst. Shah Jehan (alias Mst. Rani) was framed on 28-1-1985 to which she pleaded not guilty and claimed trial. The charge was amended on 27-2-1986 after appellant Taj Bahadur was arrested. Prosecution had already examined several witnesses when Abdul Rehman was also arrested. Instead of amending the charge once again the case of Abdul Rehman was bifurcated. The charge against appellant Abdul Rehman was framed on 4-2-1982. Hence several witnesses were examined for the second time.
Appraisement of evidence brought on record took the learned trial Court to conclude this matter by a common impugned judgment dated 21-12-1993 as under:
(i) Mst. Shah Jehan alias Rani was acquitted from the charge;
(ii) Appellants Taj Bahadur and Abdul Rehman were convicted and sentenced to life imprisonment and fine of Rs.10,000 each (in default thereof 2 years' R.I.).
(iii) Appellant Abdul Rehman was given the benefits of section 382-B, Cr.P.C. On the ground of his remaining in jail from the date of his arrest.
Note. The learned trial Judge inadvertently used the words "section 382, Cr.P.C." instead of "section 382-B, Cr.P.C. In the impugned judgment. Section 382, Cr.P.C. Relates to postponement of capital sentence on pregnant woman while section 382-B is concerned with the period of detention to be considered while awarding sentence of imprisonment.
4. Being aggrieved by and dissatisfied with the pronouncement of the trial Court the appellants preferred the appeal in hand.
5. The impugned judgment, therefore, cradles two Sessions cases bearing Nos. 1017 of 1985 (A)
(against appellant Abdul Rehman) and 1017 of 1985 (B.) (against Taj Bahadur and Mst. Shah Jehan) which arise out of the same F.I.R. And challan so also the common witnesses. The record of the cases discloses that prosecution had already examined P.Ws. Namely (i) Abdul Latif, (ii) Mst.
Zahida, (iii) Mst. Firdous, (iv) Manzoor Elahi, (v) Dr. Iqbal Ahmed, (vi) Muhammad Hanif, (vii) Mst.
Jamila, (viii) Mst. Chaman, (ix) Abdul Haque (x) Muhammad Sarwar and (xi) Mst. Salina against appellant Taj Bahadur and Mst. Shah Jehan before charge was framed against Abdul Rehman on 4-2-1989. On account of this reason the learned trial Court considered it proper to bifurcate Abdul Rehman's case from the case of other two cases. But this bifurcation neither gave any benefit to the accused nor to the Court because disposal of the case took place by a common judgment dated 21-12-1993 i.e. After about more than 9 years from the institution of the case. It is necessary to point out that the learned trial Judge examined only 4/5 formal prosecution witnesses during the period of more than 5 years to dispose of S.C. No. 1017 of 1985 (B) in which about 11 witnesses had already been examined before the arrest of appellant Abdul Rehman. This delay on the part of the trial Court cannot be appreciated by this Court on any ground whatsoever and it is hoped that trial Courts would not embrace this policy of delay in disposal of cases particularly after enforcement of the Qisas and Diyat Ordinance in Pakistan in the name of Islamic Shariah.
6. Prosecution had examined Dr. Iqbal Ahmed twice in this case i.e. On 9-9-1987 in S.C. No. 1017 of 1985 (B) and on 8-1-1992 in S.C. No. 1017 of 1985 (A). He had conducted autopsy on the dead body of Javed Akhtar and found the following injuries:
(i) Incised wound 1" x 1-1/2" muscle deep, oblique in direction at slightly right side of chest;
(ii) Incised wound 3/4" x 1/2" cavity deep transverse in direction a border of left side of lower chest and upper abdomen, 5-1/2 distance from left nipple;
(iii) Incised wound 3/4" x 1/2" muscle deep at left exilla.
(iv) Limber abrasion 1 " in length at right chest internal examination of dead body disclosed: Liver.
Incised wound 1 " in length, tissue deep in left lobe of liver.
"The food ordinarily digested after about 6 hours. The deceased might have taken food about 3-4 hours before death."
Thus, semi-digested food in the stomach and timings mentioned in the said statement fully corroborate the time of incident/inflicting injuries as mentioned in the statement under section 154, Cr.P.C.
Motive of murder has also been fully described in the F.I.R. Statement under section 154, Cr.P.C.
Similarly, the statements of P.Ws. Recorded at the initial stage leave no doubt about the names of actual culprits in this case. In the light of material collected in the very beginning and reflected by the narrations of P.Ws. On the very first day and with 4/5 hours of incident describe the role of each accused as under:
(i) Mst. Shah Jehan (alias Rani) had instigated the appellants to kill Javed, the deceased in this case.
(ii) Her husband, appellant Taj Bahadur, had caught hold of deceased Javed; and
(iii) Her claimed adopted brother or alleged paramour, appellant Abdul ehman, inflicted several dagger's injuries to the deceased.
EVIDENCE LED BY THE PROSECUTION
7. As stated earlier, the learned trial Court had bifurcated the matter into two cases bearing No.S.C.
No. 1017 of 1985 (A) and S.C. No. 1017 of 1985 (B). In both these cases several common witnesses were examined. These witnesses can be divided into three sets. The first set of witnesses consists of eye-witness (i) Mst. Firdous Begum, (ii) Abdul Latif (father of the deceased), (iii) Mst. Zahida (sister of the deceased), (iv) Sawan and (v) Mst. Jamila (mother of the deceased who was examined only in S.C. No. 1017 of 1985 (B).
The second set of witnesses had seen appellant Abdul Rehman with blood-stained dagger in his hand at the spot. They had also seen him making his escape good from the place of incident. This set includes P.Ws. Namely (i) Mst. Chaman, (ii) Muhammad Hanif (husband of Mst. Chaman), and
(iii) Manzoor Ellahi.
The third set of witnesses includes the names of (i) Abdul Latif Bhatti, (ii) Tauqir Rehman, (iii) Pervez Akhtar, (iv) Dr. Iqbal Ahmed, and (v) Imdad A.I (I.O. Of the cases).
After going through the evidence led by the prosecution I reached this conclusion that depositions of witnesses named in the first two sets remained consistent with reference to the role of appellant Abdul Rehman but so far as the case against Taj Bahadur was concerned, the eye-witnesses tried to improve their statements in such manners which did not corroborate with other pieces of evidence.
8. On bifurcation of cases, prosecution examined several witnesses twice and their depositions brought glaring contradictions in the evidence. It might be helpful to bring into light certain contrary reflections observed in depositions of few witnesses in the two cases particularly the depositions of eye-witness.
S.C. No.1017 of 1985(A) (Against Abdul Rehman)S. C. No.1017 of 1985(13) (Against Taj Bahadur and Mst.
Shah Jehan).
EVIDENCE OF P.W. ABDUL LATIF The witness fully supported the case of prosecution against Abdul Rehman on 22-2-1989 by deposing that Abdul Rehman had inflicted injuries to the deceased. The defence failed to shatter his evidence. However, the defence succeeded to establish that his previous statement against the second appellant was not correct.
The deposition of this witness dated 18-5-1987 speaks that Taj Bahadur had picked out Churri from the lower part of the leg and attacked Javed Akhtar on his chest, neck and arm. It was also stated in the said deposition that accused Taj threw away the knife on the ground and Abdul Rehman picked it. But there is no mention in the said deposition about the role of Abdul Rehman for causing injuriesto the deceased.
EVIDENCE OF P.W. MST. FIRDOUS BEGUM.
When this witness was examined on22-3-1989 she stated in her examination-in-chief: "I heard cries raised by Javed son of complainant Abdul Latif saying that a knife was inflicted to him, I looked behind and saw that deceased Javed was lying on the ground with injury and accused Abdul Rehman was standing by a tree duly armed with knife. "
In cross-examination she stated: "I did not see any person causing knife injury to deceased.This witness had also been examined on 7-7- 1987. In that statement she stated in examination-in-chief that: "Taj Muhammad caught hold of Javed alias Papoo and AbdulRehman gave Churri injuries to Javed after coming out of the house of Rani. Rani had instigated Taj Muhammad and Abdul Rehman not to spare Javed.
In cross-examination she stated: "It will be incorrect to say that Taj Bahadur had inflicted Churri injuries to the deceased...
It is incorrect that I have not seen the incident and that I am deposing out of Mohalladari in favour of the complainant party.
It is important to point out that name of this witness was mentioned in complainant's statement recorded .Under section 154, Cr.P.C. It was stated therein that Mst. Firdous Begum who Pervez Butt was present on the spot when Abdul Rehman caused injuries to the deceased. Her deposition dated 7-7-1987 fully supported the prosecution case but, when she was examined for the second time, she twisted her statement to exonerate Abdul Rehman.
EVIDENCE OF P.W. MST. ZAHIDA The witness is the sister of deceased Javed Akhtar. Her statement is similar to the statement of her father, P.W. Abdul Lateef.
She stated on 6-5-1990 in her examination-in-chief that: "---..accused Tai Muhammad left my father and caught hold my brother deceased Javed and accused Abdul Rehman gave him Churri blows.
In her cross-examination she stated that: "It is incorrect that in the previous statement recorded in case against accused Taj Muhammad and Shah Jehan I had deposed that the accused Taj Muhammad had given Churri blows to my deceased brother Javed.
Voluntarily says that I had deposed that accused Abdul Rehman had inflicted Churri blows on the person of my brother deceased Javed.She had also been examined on 18-- 5- 1987. In her statement on that day she stated: "Accused Abdul Rehman on the instigation of Mst. Rani caught hold of my brother Javed and Rani gave Churri to Taj and Taj inflicted 3/4 Churri blows on my brother on chest, neck and arms.
In her cross-examination she stated: "it is correct that in 161 statement it is mentioned that Abdul Rehman inflicted 3/4 Churri blows on my brother.1000 EVIDENCE OF P.W.SAWAN In his statement recorded on 1-12-1991, he stated: On 10-4-1988, he stated in his examination- in-chief that: "Accused Abdul Rehman had inflicted Churri injuries to deceased Javed. The co-accused Taj caught hold of the father of deceased Javed. I came forward for rescue of deceased Javed and the accused Abdul Rehman also came forward to attack on me with Churri 1, therefore, pushed up the accused Abdul Rehman and saved myself from his attack.
In cross-examination he stated: "Abdul Rehman had inflicted Churri injuries to the deceased Javed.""Accused Taj had grappled with father of Javed. I separated them and then I went towards injured Javed on which one culprit attempted to attack on me with a Churri whom I caused a kick blow and he fell on the wall. Afterwards the police disclosed to me the name of such culprit as Abdul Rehman.
In cross-examination he stated "It is incorrect that I did not witness the incident and that I have deposed falsely at the instance of my mother-in-law as she has good relations with informant.
If these two depositions are taken together for our consideration then it is fully revealed that although the witness had avoided to name accused Abdul Rehman for causing injuries to Javed yet the facts leave no doubt that there was no one else except Abdul Rehman who had Churri in his hand to cause injuries to the deceased.
EVIDENCE OF P.W. MANZOOR ELAHI The witness stated in his depositionrecorded on 31-10- 1991: 'I saw that the accused Abdul Rehman was having Churri in his hand and was threatening not to come near him otherwise he will stab the Churri. The said Churri in the hand of accused was stained with blood."The witness stated in his examination- in-chief on 22-7- 1987: "I saw that accused Tajoo had held deceased Javed. Accused Abdul Rehman was armed with blood-stained knife who was also standing there. "
"I saw that accused Tajoo had held deceased Javed. Accused Abdul Rehman was armed with blood-stained knife who was also standing there. "
Thus statement of this witness recorded on 22-7-1987 as well as on 31-10-1991 i.e. After about 4 years and 3 months totally remained unshattered. This witness is independent witness. He was working as peon in K.D.A. Department and aged about 57 years. His answers to certain questions regarding certain technical points were damaging to the prosecution case which proves that he had stated what he had witnessed. It shows that he answered each and every question independently notwithstanding that his answers may be favouring or damaging the prosecution case. Such conduct proves credibility of witness and it inspires confidence of the Court to believe his statement as full of truths on material facts. In the present case his statement regarding material fact of blood--stained Churri in the hands of Abdul Rehman at the spot remained unshaken even after expiry of several years. The deposition of this witness, therefore, leaves no doubt that it was only appellant Abdul Rehman who had caused fatal injuries to the deceased. '
DEDUCTIONS DERIVED FROM DEPOSITONS
9. I need not to discuss the evidence of remaining witnesses because pieces of depositions of witnesses as quoted in earlier lines radiate crystal clear leaving no doubt for any sensible person the role of each culprit for reaching a correct conclusion.
When the Court started recording evidence against Taj Bahadur and Mst. Shah Jehan, the complainant party put the burden of causing injuries on Tai Bahadur because accused Abdul Rehman had not been arrested till that time and they had burning feelings against the accused person who were responsible directly or indirectly to kill deceased Javed Akhtar. But they came out with truth only in the second round when appellant Abdul Rehman was arrested and charge was framed against him on 4-2-1989. Perhaps they had lost hope of arrest of accused Abdul Rehman.
So they twisted their statements to get Taj Bahadur and Mst. Shah Jehan convicted to settle the account of deceased Javed Akhtar's murder. This conduct in our society is very common although most regrettable because it shatters their credibility. If there had no other pieces of evidence to unfold real prosecution case or if the appellant Abdul Rehman had not been arrested, the Court would have been misled in this case.
10. Being fully aware of the specific conduct of witnesses in our society in criminal cases I have always embraced this view that for the purpose of safe administration of criminal justice as well as to secure the ends of justice it is necessary for the Court to take into consideration all pieces of evidence together with their collective effect. Similarly I am of the view that utterance of certain damaging words by an accused to instigate an offender to commit an offence may not amount to an act committed in furtherance of common intention to attract section 34, P.P.C. Unless the prosecution proves that the offence so committed was the result of influence and control of the instigator over the offenders who had committed that offence. It is therefore necessary for the Court to find out whether co-accused while committing an offence were acting independently or they were under the influence and control of the accused who instigated them. If the act committed by an accused appears to have been done independently without being influenced by the instigation of other accused then the alleged instigator cannot be convicted and sentenced under the garb of section 34, P.P.C.
Same was the position regarding role of Mst. Shah Jehan in this case. I have no doubt in my mind that other co-accused were acting independently and even if Mst. Shah Jehan alias Rani had not accompanied the two male accused/appellant, their intention was clear not to spare deceased, Javed Akhtar so she was rightly acquitted by the trial Court. But the case of remaining two accused persons, means the appellant, is totally on different footing.
11. After perusal of evidence led by prosecution I have no doubt in my mind that the complainant party was too much influenced by their burning feelings equally against each accused. No doubt that they had supported the prosecution case against appellant Abdul Rehman but there is also no doubt that they were not honest enough while improving their statements against Taj Bahadur particularly before the arrest of Abdul Rehman. I have no hesitation in expressing myself that if they been honest in their statement, no benefit of doubt could be given to appellant Taj Bahadur. The complainant Abdul Latif (father of deceased) Mst. Jamila (mother of deceased) and Mst. Zahida (sister of the deceased) have undoubtedly spoiled the case of prosecution themselves on account of their emotional feelings. Firstly they put the burden of offence on appellant Taj Bahadur and then they shifted that burden from Taj Bahadur to appellant Abdul Rehman (Note: Mst. Jamila was examined only once. She was not examined against appellant Abdul Rehman). This conduct of complainant and her daughter (respectively father and sister of the deceased) was fatal to their credibility with reference to their evidence against Taj Bahadur.
Similarly the statement of Mst. Firdous Begum has also cause substantial damage not only to her credibility but also to the prosecution case against Taj Bahadur. She was an independent witness.
She deposed against the accused persons correctly when father, mother and sister of the deceased told lies against Taj Bahadur on account of their hatred against him with intention to take revenge of deceased Javed. But when father and sister of the deceased came out with truth she deposed in the second round lukewarmly in such manners which could be fruitful to save appellant Abdul Rehman.
12. It was contended forcefully by the learned Advocate for the appellants that contradictory statements of eye-witnesses had laid down a foundation of doubts and the appellants could not be convicted and sentenced on the basis of story concocted in the F.I.R. Because an F.I.R. Is not a substantial piece of evidence. No doubt there are apparently contrary pronouncements on the point of treating an F.I.R. To be a substantial piece of evidence or not but my view is that an F.I.R. Is a substantial piece of evidence if it contains substantial material regarding details of an offence with mention of role of accused persons and the names of witnesses. But if an F.I.R. Contains only information about the murder of a person without any other detail about accused person or their role or the names of witnesses etc. Then the said F.I.R. May not be treated a substantial piece of evidence. I am also of the view that an F.I.R. In murder cases registered within the shortest possible time with all details does not possess lesser value than a death declaration. My view for believing so is based on the following reasons.
A person, at his death bed, when loses hope of his survival, is always found mentally determined to speak the truth. Similarly when a seriously injured person is brought by his, relatives or friend for his treatment then truth automatically comes out of their mouth because at that time, they have no senses to tell lies. There may be exceptions to this proposition but exceptions are always exceptions and they cannot prevail over generality. On account of this reason an F.I.R. With all material detail of an offence particularly in murder cases is as much important on behalf of the deceased as that of death declaration by the deceased himself before his death. On the strength of this proposition I am of the view that if there is one or more than one corroboratory pieces of evidence to support prosecution case as reflected by such an F.I.R. Which is treated substantial piece of evidence by the Court and if the same inspires the confidence of the Court then conviction can be based upon such pieces of evidence nevertheless the eye-witness supported the case or resiled from their previous statements.
The case of appellant can be judged on the avail of these propositions.
If depositions of complainant Abdul Latif (father of the deceased) and Mst. Zahida (sister of the deceased) are ignored, even then there is convincing and ample evidence of independent witnesses including Manzoor Elahi and several others, to prove the presence of appellant Abdul Rehman on the spot with blood-stained Churri at the time of occurrence. His unambiguously mentioned role in the F.I.R. And his abscondence for several years fully corroborates and proves him guilty of the offence charged against him.
To the contrary learned counsel for the appellant neither brought into light any defence theory nor any convincing statement of appellant Abdul Rehman under section 342 or under section 340(2), Cr.P.C. This part of the proceedings was rather conducted lukewarmly by the learned counsel. This important aspect can be easily ascertained after going through the statement of appellant Abdul Rehman recorded by the Court under section 342, Cr.P.C. Or under section 340(2), Cr.P.C. For example question No.3 and answer to that question in the statement under section 342, Cr.P.C.
Reads as under: Q. Do you want to examine yourself on oath?
Ans. No sir, Contrary to this answer the appellant examined himself on oath in his defence and deposed as under: "I had not committed the murder of deceased Javed. I have been implicated in this case because of Hello-Hello with co-accused Taj. I am innocent. I pray for mercy of this Court and also pray for justice with me. "
Such defence is totally unconvincing and inspires no confidence of any Court
13. There is no doubt in this bitter reality that in tribal society still existing with full force in rural areas it is very common to implicate all possible male members of rival group on account of tribal enmities. But it can be said with certainty that this cancerous characteristic of enmity observed in the heart of tribalism has not entered fully into the veins of urbanism. On the bases of this aspect I have no hesitation to hold that examining the appellant under section 340(2), Cr.P.C. In such manners was nothing but only an eye-wash. Thus the learned trial Court was justified to ignore such unconvincing statement which came out of the mouth of appellant after expiry of about 5-1/2 years from the date of his arrest. During this period he could prepare proper defence and produce several witnesses in his defence if he had been truthful in his claim that he was innocent.
However his prayer for mercy was accepted by the trial Court and he was awarded life imprisonment instead of death sentence and which was the only and proper sentence for such murderer who break young helping hands of old and aged parents. In these circumstances I would have issued a notice for enhancement of sentence if the appellant had not been in prison since 1988.
14. These were reasons for passing the order in para. l of this judgment.
15. Notwithstanding the fate of this appeal, as decided above and nevertheless that this murder case relates to a period prior to the promulgation of Qisas and Diyat Ordinance, the L.Rs'. Of deceased Javed Akhtar have right to compromise with appellant Abdul Rehman by accepting blood money/Diyat. The L.Rs' of deceased Javed Akhtar have also right to pardon the appellant if they so desire.