SHER AHMAD Versus THE STATE

ABDUL HAKEEM KHAN, J.‑ By his order dated 17th of July, 1975, the Sessions Judge, Kohat convicted Sher Ahmad, aged 25 of tappi of an offence under section 302 of the Pakistan Penal Code and has sentenced him to death. He has further directed him to pay Rs. 1,000 by way of compensation to the heirs of the deceased. He has also found him guilty of possessing a 7 mm unlicensed rifle with ammunition and has sentenced him to three years' R. I. under section 13 of the Arms Ordinance. It may be mentioned that the learned Sessions Judge has omitted to order that in the event of default the accused would suffer further imprisonment.

2. The, convict has preferred an appeal to question the validity of his conviction and sentences and there is also a murder reference for confirmation of his death sentence. This order will dispose of both.

3. The prosecution story, in brief, is that Muhammad Daraz alias Babay was going for a walk and to ease himself at about digarwela on the 7th of October 1974 while he was being followed by Abdul Ghafoor P. W. who happens to be his friend. When they were close to the field of the aforementioned Muhammad Daraz where Mst. Part Jan sister of Muhammad Daraz was cutting grass, Sher Ahmad appellant came from the front being armed with a rifle and fired twice or thrice. Muhammad Daraz was hit in the abdomen and thereafter the appellant decamped.

4. The motive for the crime was that a few days before the occurrence the appellant had taken away the ornaments of his wife, who happens to be a cousin of the deceased, and these were returned by the appellant when he was forced by the deceased to do so.

5. The prosecution has produced Mst. Part Jan and Abdul Ghafoor (P. Ws. 8 and 9 respectively) as eye‑witnesses of the occurrence. Additionally, the prosecution relies on the recovery of 7 mm Rifle with 16 rounds (Exh. P. 3/1 and Exh. P. 4 respectively) from the appellant in a nakabandi at 12‑30 a.m. of the following night when he was about to cross into the tribal territory and his rifle not only smelt fresh discharge when it was recovered but when it was gent to the Firearms Expert with an empty (Exh. P. 1) recovered from the spot on the next day the Expert opined that it had been fired from the weapon sent to him.

6. The appellant denied that Muhammad Daraz deceased was a relation of his wife and that ornaments were taken by him and that he returned them at the instance of the deceased. He also denied having perpetrated the crime and submitted that he had been falsely charged. About the circumstances in which he was arrested and the recovery of the rifle he stated as follows:‑

"Q. Is it correct, that the I. O. had arrested you at 12‑30 midnight on 8‑10‑74, in the mountains of Bazid Khel alongwith a 7 mm rifle and 16 live rounds, when you were going towards the T. T?

A . No. The fact is that I had gone to village Bazid Khel 3 days prior to the occurrence and was the guest of one Ghulam Haider. The I. O. came at about 11 at night there in village Bazid Khel in the house of said Ghulam Haider. He arrested me and took away my licensed rifie of 7 mm alongwith live rounds.

Q . Is it correct, that you had no valid licence for the 7 mm rifle and the 16 live rounds, which the I. O. took from you?

A . No. 1 have got a licence for the said rifle.

He has also produced Haider Ghulam in defence that the appellant was arrested from his house at 11/12 at night in Bazid Khel and that the rifle recovered was a licensed one."

7. The learned trial Judge has believed the two eye‑witnesses and he was also satisfied that the rifle and the circumstances in which it was recovered connect the appellant with the crime.

8. Mst. Part Jan (P. W. 8) was admittedly a sister of the deceased and as far as Abdul Ghafoor P. W. is concerned, the following quotation from the statement of Mst. Part Jan will establish that apart from being a friend of the deceased he has got relationship with the deceased:‑

"Haji Shah Nawaz is the tarboor of deceased and he is elder of our family. It is correct, that the daughter of one Mukhtar of our village is married to Mir Ali Khan s/o Said Haji Shah Nawaz. The said Mukhtar is the brother of P. W. Ghafoor."

It is true that there is nothing on the record to show that there was enmity between the deceased/the eye‑witnesses on the one side and the appellant on the other and the only motive set up for the crime is that a few days prior to the occurrence the appellant had taken the ornaments of his wife and he was made to return those ornaments by the deceased because the wife of the appellant happens to be a daughter of his tarboor but the all important question that arises is as to whether Mst. Part Jan and Abdul Ghafoor are the natural witnesses.

9. It is noteworthy that the occurrence is stated to have taken place at digarwela on the 7th of October 1974 in the month of Ramzan at a distance of one mile from village Tappi close to the field of the decease which was bearing Jowar, stated to be nine inches high, and that the Investigating Officer also found that Jowar had been freshly cut. The first question that strikes one's imagination is as to why Mst. Part Jan who is admittedly married and lives in a separate house should be cutting Jowar from the field of his brother one mile away from the village at digarwela in the month of Ramzan. At that time she was expected to be in her house and it is not easily understandable that she should be cutting Jowar for her brother or for her own cattle. This appears to be absurd when we see that in the F. I. R. (Exh. P. A.) lodged by her all that she has stated is that she was cutting grass. Now as far as Abdul Ghafoor P. W. is concerned, the reason given by him that he and the deceased were out for a walk and that they also intended to ease themselves appears to be unusual to the extent that he says that they were proceeding for easing themselves. The occurrence took place about an hour and a half before the breaking of the fast and that is no time for easing oneself. It seems to us that in all probability the deceased was cutting his own Jowar all alone at point No. 2 and was fired at from point No. 4 and he fell at point No. 1, which is nine paces away from the place where he was cutting the charri.

10. In support of the view that the crime was un-witnessed we will like to advert to the medical opinion. Doctor Ghulam Farid (P. W. 4) found the following two injuries:‑

(1) One entrance wound of firearm about ' x ' on the right side hip below the iliac crest above and behind the hip joint.

(2) An exit wound of firearm about 2 x 1" on the right side lower abdomen. and added that intestines were protruding through the wound. As far as internal injuries are concerned, he found the abdominal wall, peritoneum and small intestines injured. Moreover, right side hipbone was fractured. As far as the stomach contents are concerned, the doctor added that it only contained two ounces fluid.

11. Now what Mst. Part Jan P. W. has stated in the F. I. R. (Exh. P. A.) is that when the deceased and Abdul Ghafoor came near her, the appellant appeared from the front and fired 2/3 shots and the deceased was hit and injured on the front abdomen. It will be seen that the medical opinion so far as the entrance wound is concerned, negatives the story put forth by Mst. Part Jan. If what is stated by Mst. Part Jan is true, the doctor would have found the entrance wound in the abdomen and not fro behind. The medical open on also does not support that there were 2/3 fires at the deceased and this assertion is further shaken by the fact that only one empty could be found. That what Mst. Part Jan has stated in the F. I. R. is not only in conflict with the medical opinion but also wit her statement in the Court inevitably flows from the following quotation from her statement:‑

"When my deceased brother was coming towards me, he was walking ahead of P. W. Ghafoor. My brother was at a distance of 10 pace, when accused Sher Ahmad Khan came from the northern side towards the deceased. He was armed with rifle. The accused Sher Ahmad Khan fired 2/3 shots at my brother with his rifle, with which the deceased was hit and fell down."

The above quotation will show that the deceased was still coming towards the witness that he was fired at though the F. I. R. and the site plan (Exh. P. E.) will show that he had bypassed her by nine paces.

12. That much reliance cannot be placed on the testimony of Mst. Part Jan will be clear from the fact that under the stress of cross‑examination she had to admit:‑

"It is incorrectly recorded in my C. M. report, that I went to P. S. where I lodged my report Exh. PA/1 and Waris Khan, Juma Khan and Hayat Khan had also accompanied me to the P. S. P. W. Ghafoor and the deceased were old friends. Again said that I do not know about this."

While her statement in Court is that she did not at all go to the Police Station and lodged the report at Liaquat Memorial Hospital. Kohat. If there is at all an iota of truth in her claim and that of the I. O. as also of Abdul Ghafoor that she did bind injury with her dopatta there is no reason whatsoever that the doctor would not have passed that on to the D. I. O. and latter would have also missed it, for he has stated to have been present at the hospital before that the deceased breathed his last, It also does not stand to reason that if the crime was witnessed by Mst. Pari Jan and Abdul Ghafoor, the I. O. would have failed to recover the empty from point No. 4 at the time when be took the blood‑stained earth from the spot a few hours after the occurrence. The reason given by the I. O. that it became dark is unconvincing when we see that this very I. O. has said to have laid at trap successfully for the apprehension of the appellant (n the middle of the night and prepared memos. etc. If it had been grown dark, arrangements for light could have been made. The village was not far off or in the alternative a Constable could have been left to guard the spot till next morning when the spot inspection could be carried out in a more careful manner.

13. The learned counsel for the appellant referred us to the statement of Abdul Ghafoor under section 164 of the Cr. P. C. on page 31 of the record which has been transferred to the Sessions file in disregard of the provisions of the Code of Criminal Procedure in support of his contention that Abdul Ghafoor had in that statement said that firing had been from the sugar cane field of Rustam Khan and that this field according to the evidence brought on the record is 200 paces away from the spot. We will not dilate upon this, for with this statement the witness was not confronted when he was in the witness‑box and as such it is inadmissible in view of the authority of the Supreme Court reported as Sikandar Hayat and 4 others v. Muster Fazal Karim (P L D 1971 S C 730)

14. Five shot rifle of 7 mm (Exh. P‑3/1) and 16 live rounds (Exh. P 4) in a bandolier (Exh. P. 3) were taken into possession per memo. Exh. P. G. by Zamrud Khan S. H. O. (P. W. 10); the marginal witnesses, being Rahmanuddin A. S. I. and Ali Baz, F. C. 340 Police Station, Saddar. Memo itself does not say anything about the place at which the recovery was made. All that this said is MOQA PER MURATAB HO KER GAWAHAN KEY DUSTAKAT SUBT HAIN It is said by the I. O. and Ali Baz (P. W. 7) that this MOQA was in the moun tains of Bazid Khel but Rahmanuddin, A. S. I. (P. W. 5) though produced was not asked any question on this point by either side. The defence of the appellant is that this was a licensed weapon and was recovered from him at Bazid Khel at about 11/12 in the night while he was staying in the house of Ghulam Haider whom he had produced as D. W.

1. There is one thing which is intriguing and that is though Ali Baz and the I. O. admit that there is another road between Bazid Khel and village Tappi and if that is adopted, no big mountains come on the way. The appellant did not adopt that route and chose the one which was perhaps difficult. This makes us sceptic and moreso when we see that the recovery has not been witnessed by any independent person but by two policemen. The explanation given by the I. O. that for nakabandi they do not take disinterested persons has not impressed us, for he admits that when he was at the spot he got information that the accused wanted to abscond towards the tribal territory and it was, therefore, that he took the police party and arranged a picket at Bazid Khel. The Investigating Officer has stated that he was at village Tappi at 6 p.m. and it comes to this that he got the information at about 6‑20 or say 6‑30 am., he was notable to take any independent witness. It could not be reasonably said that the information was vague or there was no time. As has been said by Mst. Pari Jan Tappi has got 4/5 lumbardars and chaukidars and some one from Bazid Khel could also be taken.

15. Though we are not impressed by the plea of alibi taken by the appellant and the testimony of his only D. W. namely, Ghulam Haider that the appellant was there with him for 2/3 days prior to the occurrence one thing is again intriguing, namely, that though the appellant had a licensed ride, number of which has been noted in the licence as 4710, why an effort was not made by the I. O. to ascertain that the rifle recovered by him was in fact a licensed weapon and that second number from the right, namely, 4 was the result of tampering with No. 1 We have seen the rifle and its number and it appears to us that the two fours in the number of the rifle are not identical and that in all probability the second 4 from the right was the result of tempering. May be that the I. O. wanted to take double credit for detecting the appellant with an unlicensed rifle in circumstances which will not only incriminate him further but will show that the officer had sufficient dash. If he was to go by licence and the apprehension was not to be from Bazid Khel mountains, it might have been considered to be a routine recovery even though incriminating.

16. But one thing is clear that the rifle was recovered at 12‑30 am on the 8th of October 1974, the crime empty (Exh. P. 1) was recovered on the following morning on are visit to the spot by Rahmanuddin A. S. I. in the presence of Fazal Rahman chaukidar (P. W. 6) vide memo. Exh. P. F. The other witness of this memo., namely, Shah Nawaz has not been produced and the contention that has been urged on behalf of the appellant is that the recovery was nothing but padding and no one safer than Fazal Rahman chaukidar was available to the prosecution. We have already observed that if the I. O. wanted he could make a thorough search of the scene of occurrence when he visited the spot and took the blood‑stained earth on the previous evening and if it was not possible, he should have placed some constable to guard the place. This conduct of the I. O. raises a suspicion moreso when before the recovery of the empty he was in possession of the crime weapon. It is true that the Firearms Expert (P. W. 1) has stated that the crime empty has been fired from the crime weapon recovered from the appellant but this becomes inconsequential when we see that sealed parcels of the crime empty and crime weapon were not sent to the Director, Forensic Science Laboratory at Peshawar from Kohat till the 31st of October 1974. The rules require immediate despatch of the crime weapons and crime empties and in this case the matter was delayed for good 23 days. There is also no evidence on this record to show as to when the two sealed parcels were sent by the I. O. to the S. S. P. at Kohat. In Rahman and others v. The State (P L D 1968 Lah. 464) where delay was far less, their Lordships observed as follows:‑

"Furthermore gun Exh. P. 3, was allegedly recovered from Fateh Muhammad accused on 22nd September 1965, and the crime empties Exhs. P. 8‑P. 10 on 10th September 1965, from the scene of occur rence but they were not sent to the Ballistic Expert until 27th September 1965. Again this delay has not been accounted for. For these additional reasons we are in agreement with the learned Additional Sessions Judge that the alleged recoveries were doubtful and were of no avail to the prosecution."

On page 869 of the same year from Lahore there is another Division Bench ruling where crime empty sent to Expert after the recovery of the weapon of offence was held to be of no avail. The recovery of the empty in that case was on the 4th of July 1965, while it was delivered at the Forensic Science Laboratory on the 13th of July 1965, and during this period a gun had also been recovered. Ceasor's wife has got to be above suspicion and we should like to reiterate that sealed parcels of the crime empties and crime weapons should not in any event remain in the malkhana of the Police Station and must invariably be delivered at the S. P.'s office immediately and that on this point the prosecution should produce evidence. We should, however, not be taken to have laid down that the despatch weapon: and empties can be delayed in the S. P.'s office. Those must be sent as soon as those are received.

17. There is yet another aspect of the present case and that is that no question was put to the appellant so as to get it explained from him the circumstances in which the empty recovered from the scene of occurrence was being connected with the weapon recovered from him. Section 342 (1) of the Cr. P. C. reads:‑

"For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."

18. It appears to us that the crime empty considered with the recovery of the weapon was a circumstance appearing in evidence against the appellant and it was, therefore, the duty of the trial Judge to have called upon the appellant to explain his position on the point. It is true that some irregularities which have not prejudiced an accused person are incurable under section 537 of the Cr. P. C. but the question is whether the present is a case in which the appellant could not have offered any explanation whatsoever. The learned counsel for the appellant submitted that if the question had been put to the appellant the latter could have said that recovery was a piece of padding and that the rifle already recovered from him had been used for the purpose. In Kamir v. The State (1974 P Cr. L J 65). report of the Firearms Expert had not been put to the accused under section 342 of the Cr. P. C. and their Lordships held that the prosecution had failed to bring home any charge against the accused. The learned Advocate‑General referred us to an authority of Azad Jammu & Kashmir in Mehrban v. The State (1974 P Cr. L J 543) wherein their Lordships have observed that where there is a total denial, even if a question had been put to the accused, it would have only elicited a denial from him and, therefore the failure of the trial Court to specifically question the appellant about the dying declaration had not caused any prejudice to the appellant. We have gone through the Indian Supreme Court rulings and Abdul Wahab v. The Crown (P L D 1955 F C 88) on which reliance was placed by their Lordships of the Azad Jammu & Kashmir and have come to the conclusion that the yardstick in such cases is as to whether or not there had been a prejudice to the appellant. In P L D 1955 F C 88 it was a misappropriation case involving Rs. 808‑13‑3 and the accused was a Tax Collector of a Municipal Commit tee and their Lordships observed that he fully understood the trial ‑and the general way in which he was examined had not prejudiced him. So was in the cases from India. Prejudice to the appellant was not shown in either of the two cases and in Chikkarange Gowda's case questions, which were omitted in the case of the other appellants were put to Govinda Gowda whose conviction their Lordships upheld. It seems to us that all that will undo the total denial must be put to an accused t person and any other view of the matter will render the provisions of section 342 of the Cr. P. C. nugatory. To use a piece of incriminating evidence against an accused person without calling his explanation in our, view does cause prejudice to him even though he might have pleaded not guilty and had denied the charge.

19. On the view of the matter that` we take we are constrained to extend the benefit of doubt to the appellant and setting his conviction and sentences we acquit him. The death sentence is not confirmed. The rifle if found to be licensed should be returned to the appellant.

S. A. H.

Appeal accepted.