NAZIM KHAN Versus THE STATE

1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the three brothers, all convicted under section 302/34, P. P. C. (two counts) and sentenced to death, to examine whether, on the conflicting findings of the trial Court and the High Court of Peshawar, their conviction was based on the generally accepted principles for the safe administration of criminal justice.

2. Qalamzar, appellant, aged 22 years and another person Nazir had, it is said, committed rape on Mst. Shahro Janan (not produced, not cited as a witness even) aged 11-12 years daughter of Arab Shah deceased while she was out in the fields collecting fuel wood in the morning on 25th of October, 1974. The same evening the elders of the village had gone to Arab Shah in order to, dissuade him from prosecuting the matter by reporting it to the Police but Arab Shah, it appears, was not accepting their suggestion. Arab Shah deceased was the servant and house-tenant of Abdur Rauf deceased and his father Sher Dad (P. W. 9). On the 26th of. October, 1.974 at about 8-30 a.m. Arab Shah and his brother Gulab Shah (P. W. 12) were busy loading gravel and sand on the four donkeys in the ravines of village Koi Police Station Katlang about two hundred yards away from the village Abadi. Abdur Rauf was returning after leaving his cattle on the outskirts of village Koi so that they may graze on the Barmol, mountains about two miles away from there. He came across Arab Shah and Gulab Shah working in the ravines and stopped by them. Sher Dad (P. W. 9) was taking his cattle for the same purpose towards 'the outskirts of the village and Nosherwan (P. W. 11) was going out of the village for collecting fuel wood. The three appellants alongwith their uncles, Mir Dad and Wali Dad (acquitted accused) and one Muhammad Afzal (discharged accused) were seen sitting on the boundary of field of Nazim, all armed with fire-arms. Without shouting a challenge they all fired a volley of shots. about ten or eleven in number all directed towards Audur Rauf and Arab Shah deceased both of whom received fire-arm injuries. The appellants and their companions retreated from the spot. Sher Dad, Nosherwan and Gulab Shah attended to Arab Shah and Abdur Rauf, took them to the bus stand and from there to the Police Station Katlang at a distance of about ten miles away. The first information report was lodged by Abdur Rauf which, after his death the next day, was treated as the dying declaration. Arab Shah expired the same day on way to the hospital. The appellants and their companions absconded after the occurrence and , the first to be arrested was Rahamzar on 3rd of January, 1975 and the rest were all arrested on 3rd of March, 1975. During the investigation except for the bloodstained earth recovered from the ravine where the two deceased had been shot at nothing else was recovered from the spot.

3. Abdur Rauf was examined in an injured condition at 1-15 p.m, by Dr. Abdul Aziz Khan, P. W. He found the following injuries on his person : ?

(1) A fire-arm entrance wound ? " x -" ? ? x - on the outer aspect of left upper arm in its middle. Charring marks not present.

(2) A fire-arm exit wound 1 ? " x 1 ? ? " on the inner aspect of left upper arm.

(3) A fire-arm wound ? ' x ? ? ? on the outer aspect of left forearm.

(4) Two fire-arm entrance wounds ? " x ? " and half inch apart and two inches outer to the left nipple. Charring marks not present."

4. After his death Muhammad Alam Khan, Medical Officer, performed the autopsy and found ~n external examination the following injuries :-

5. "External examination"

(1) Two fire-arm entrance wounds on the left side of the chest in the mid axillary line. in the 6th space half inch apart from each other size ? " x ? ? each. No charring marks. No exit wound.

(2) A fire-arm entrance wound on the dorsal aspect of the left forearm near the alner border size ? ? " x ? ". No charring. Corresponding exit wounds Nos. 3 and 4 of the left elbow size 1 ? ?? x 2" and 3" x 2", respectively.

6. He recovered a metallic piece from inside the body and handed it over to the police. He stated

7. "It is possible that after the missile entered injury No. 2 it came out through injuries Nos. 3 and 4 and then entered the mid axillary line causing injury No. 1.'".

8. He also made it clear that if the hands had been hanging in the normal position then this injury could not be caused.

9. Dr. Ahsan Ullah Khan (P. W. 15) performed the autopsy on the dead body of Arab Shah and found the following two external injuries on his person:

10. "(1) An entrance wound 2" x ? " edges irregular torn present on the right side of the face (Maxillary region) one- inch below the right eye.

(2) Exit wound edges everted torn irregular about 3.1 /2' x 3' present just below the right ear. The lower part of the right ear destroyed. Direction from left to right."

11. The appellants and their co-accused denied at the trial the rape on the daughter of Arab Shah deceased, their involvement in it and the sending of the Jirga and its failure or their having fired at and caused the deaths of Arab Shah and Abdur Rauf. They stated that they had been falsely implicated on account of enmity. As regards their disappearance after the occurrence, they stated that they had gone out to attend to their work and had not absconded.

12. The trial Court disbelieved the three eye-witnesses namely Sher Dad (P. W. 9), Nosherwan (P. W. 11) and Gulab Shah (P. W. 12) for the reason that they are chance witnesses, had not satisfactorily explained their presence at the spot, had contradicted themselves in material particulars from their earlier police statements, appeared to be interested witnesses and did not inspire confidence. The dying declaration of Abdur Rauf was found to be prompted and to have implicated innocent persons, particularly Mir Dad and Wali Dad, who on account of their old age and the nature of the errand, could not have joined the appellants. The trial Court therefore looked for substantial and material corroboration. It found the dying declaration to be worthy of credits in part and in so far it was corroborated by the abscondence of the three appellants and considered it sufficient. It therefore held them guilty under section 302/34, P. P. C. and sentenced them to death subject to confirmation by the High Court and also imposed a fine of Rs. 2000 under section 544-A, Cr. P. C. or in default six months' additional R. I.

13. On appeal and while seized of the question of confirmation of the death sentence of the appellants, the learned Judges did not consider the eye-witnesses to be either interested or partisan. On the contrary, they found them to be related to the appellants as a piece of Wali Dad was said to, be married to Abdur Rauf deceased. They found that each had given a plausible explanation for his presence at the spot. The motive against Abdur Rauf not being present on the record, firing at him was explained by the High Court in the following words :

14. "It is significant that Abdur Rauf alleges that fire was opened at him and tenor of his F. I. R.-cum-dying declaration is that he was the primary object and that Arab Shah got injured incidentally. This enigma can only be explained by the hypothesis that on the preceding night in the Jirga Abdur Rauf had identified himself with Arab Shah dashing the expectation of the appellants from him and it was, therefore, that he was fixed up."

15. . As regards the contradiction and improvements in the statements of the three eye-witnesses the High Court held that these appeared to be "inconsequential and can be attributed to the understanding of the police officer who was recording the statements". The dying declaration was held to be free from any taint. The abscondence was held to be fully proved and provided the necessary corroboration against the appellants. Hence the appeal was dismissed and the sentence of death confirmed.

16. The learned counsel for the appellants Mr. A. K. Brohi, contended that the trial Court had given good and sound reasons for treating the three eye-witnesses as chance witnesses and not reliable on account of their conflicting statements made before the police and at the trial with regard to the occurrence and their presence at or near the spot at the time of occurrence. Such an appraisal of evidence had as its basis the law laid down by this Court which was relied upon by the trial Court for drawing its own conclusions. The High Court in explaining these contradictions on the hypothesis that the police officer misunderstood them and also in supplying the deficiency 'in the prosecution evidence by adopting the hypothesis that on the preceding night in the Jirga Abdur Rauf had identified himself with Arab Shah dashing the expectations of the appellants from him, has given benefit to the prosecution which on no good reason could be extended to it. The benefit of such a defector omission should not have been extended to the prosecution, and instead these should have been treated as deficiencies or shortcomings of the prosecution case and the benefit must have gone to the appellants.

17. The dying declaration made by Abdul Rauf, which is the First Information Report in the case, was considered by the trial Court defective or deficient in more than one respect. Abdul Rauf was held to be an interested person because it was found that though he was married to a niece of Wali Dad, the acquitted accused, they were not on visiting terms. Another reason given was that there were positive indications on the record that Sher Dad P. W. 9, the father of Abdul Rauf had prompted the name of all the persons named in the F. I. R. Yet another reason given was that it was not lodged soon enough, away from the police station, though sufficient opportunity for getting it recorded was available when the party was waiting for a bus at the Bus-stand for about two hours or so or at the school adjacent to- the Bus-stand where person who could record such a declaration were available. To this must be added two other factors. This Court has indicated a rule of caution. In Ghulam Farid v. The State P L D 1966 S C 264, and it is as follows :

18. "It is often found that a dying declaration made elsewhere than at ? a Thana is more worthy of reliance than one made in the presence ? of the police where also the relatives who have brought the injured ? man to the Thana are generally present and usually cannot be prevented from putting a prepared case through the mouth of the deponent."

19. This rule of caution was reiterated in the case of Usman Shah v. The State 1969 P Cr. L J 317, and it was more emphatically repeated in Wahiduddin and S others v. Allah Ditta 1977 S C M R 72, in the following words :

20. "As this Court has held in Ghulam Farid v. The State a dying declaration recorded at a police station, when the relatives who have brought the injured there are present is always suspect and certainly less worthy of credence than one recorded by a Magistrate after excluding the relatives."

21. Sher Dad, P. W. 9, the father of Abdul Rauf deceased stated "I informed Abdur Rauf about the real culprits whom I had identified"

22. Another factor which reacts adversely on the dying declaration is its lack of integrity and correctness. It is a fact that in all six persons were named in it as equally responsible for firing and causing thereby the death of two persons. One Muhammad Afzal named therein was discharged by, the police finding weight in his plea of alibi. The two Courts have considered the involvement of Walidad and Mirdad, the two elderly persons, as highly improbable on account of their maturity, old age and the very nature of the errand.

23. The High Court with regard to the relationship of the accused and the complainant party and the conclusions drawn by the trial Court observed as follows;-

24. "There is not an ? iota of evidence on the record except the allegations of the appellants to show that there was any enmity between them and the complainant patty. Sherdad has categorically stated that there was no enmity and he is supported in this behalf by Nosherwan. Capital is, however, being made on the basis of two sentences occurring in the statements of these two witnesses. Sherdad has said, "we are not on visiting terms with the accused" and Nowsherwan admitted: "I know that there was enmity between Arab Shah and the accused party."

25. Such a close relationship of the' deceased Abdul Rauf and Mirdad and yet their being not on visiting terms, could reasonably lead to the inference at which the learned Sessions Judge had arrived. Besides, when Nowsherwan an elder relative of Abdul Rauf himself admitted that there was enmity between Arab Shah and the accused party what more was left to be proved by the accused for deriving benefit's flowing from such a statement. The care and caution with which the dying declaration has been treated] by the trial Court was in fact justified in the circumstances of the case.

26. Another feature of the dying declaration is that it is not quite consistent with the prosecution case as set out by the three eye-witnesses. All the three eye-witnesses stated that when the two deceased were fired at all of them were in the Ravine-the deceased Arab Shah was collecting sand and loading it on the donkeys. Gulab Shah his brother was standing nearby. The dying declaration, on the other hand, gives the impression that the deceased Arab Shah all by himself was leading his four loaded donkeys ahead and deceased Abdul Rauf was following him. This may not appear, on first impression, to be a very material difference but in ant occurrence where the very presence of the three eye-witnesses is open to] doubt as chance witnesses, it acquires some importance.

27. The trial Court, apart from treating these eye-witnesses as chance witnesses, pointed out serious discrepancies in their statements. Sherdad P. W. 9 stated that occurrence took place when he was driving his cows for grazing to the pasture while Nowsherwan Y. W. was going to the field for collecting fuel wood. Then he stated "The cows had gone about 30 paces away from me when the firing started. When I reached the Khwar I left the cows in the Khwar and myself stood on the bank of the Khwar". He was confronted with his police statement where he had stated that occurrence took place when he was returning after leaving the cattle for grazing in the Barmol mountains. He also repudiated his statement recorded by police that Nowsherwan had accompanied him. He also denied his police statement to the effect that Gulab Shah ran towards them and all of them took refuge and went to the injured when the accused had left.

28. Nowsherwan P. W. 11 stated that he was going to the field for collecting fuel wood. According to the police statement he, too like Sherdad was returning after leaving his cattle. He saw Abdur Rauf sitting near the place where Gulab Shah and Arab Shah were collecting gravel.

29. Gulab Shah P. W. 12 stated that at the time of occurrence they were collecting gravel while Abdur Rauf deceased came there and was standing. He also said that at the time of firing he was sitting. He repudiated his statement recorded by police that he alongwith other witnesses went to the village and brought "charpoy."

30. The High Court explained away these discrepancies in para. 15 of its judgment in the following words :

31. "It is true that Sherdad has contradicted his police statement on three points and so far as Nowsherwan is concerned, he has denied his statement before the police on the point that he had gone to Barmol in the morning and was coming back, but these. appear to be inconsequential and can be attributed to the understanding of the police officer who was recording the statement. The facts that Gulab Shah's place was not specifically marked in the site plan and that Muhammad Afzal though directly charged in the F. I. R. was dropped by the investigating Officer himself would rather show that investigation was sympathetic towards the party of the appellants."

32. Such an appreciation of evidence is not in conformity with the accepted principles, for safe administration of criminal justice. The benefit of reasonable doubt arising from such discrepancies and inconsistencies' has been denied to the accused on the hypothesis that it was on account of misunderstanding of the police officer who recorded the statement.

33. The motive for the occurrence is not very convincing either. The facts stated and forming the motive otherwise sound very forceful. A daughter of Arab Shah had been raped by Qalamzar accused and Nazi son of Gulidad acquitted accused, a day before the occurrence. A Jirga had been taken to Arab Shah to patch up the matter, to dissuade him from lodging the report. According to Sherdad P. W. 9 the father of Arab Shah deceased, Arab Shah had not rejected the offer, or showed his determination to go and lodge the report. He had only promised that he would consider the matter. The fact remained that he had not reported it to the police that day nor the next day. The fact that he was collecting sand and gravel from the ravine would show that he had not decided to go and lodge the report. There was nothing to precipitate the firing there being no rejection or refusal on the part of Arab Shah. Even on this aspect of the case Gulab Shah P. W. 12 has sounded a discordant note by stating as follows :

34. "We were in our house when the accused beseiged our house and did not allow him to go out and lodge the report. This seige continued from Peshin time to Kuftan time. We had chained our doors from the inside. We did not get out of our house that night out of fear. None else also entered our house- during that time to help us."

35. This version is discordant because none else stated about it and it precludes the possibility of a Jirga being taken and its failure about which Nowsherwan P. W. 11 stated and which was advanced as motive for the occurrence.

36. The mere abscondence of the persons charged does not, on the fact of this case, furnish any corroboration because it is a factor common to all those who were charged.

37. Taking an overall picture of the material on record, we find that the prosecution case suffers from serious infirmity and it is not possible to place reliance on it. There is conspicuous lack of independent corroboration. In accordance with the principles governing safe administration of criminal justice the appellants are entitled to benefit of doubt. Their appeal is, therefore, accepted and their conviction and sentence is set aside. They shall be released forthwith unless their detention is required in some other case.

38. M. Z. M. ? Appeal accepted.