KALAY BAKHSH ALIAS KALOO Versus THE STATE

AMIR-UL-MULK MENGAL, J. --- The learned Additional Sessions Judge, Usta Muhammad tried accused Kalay Bakhsh under section 302, P.P.C. (as amended) in Sessions Case No.46 of 1992 and after finding him guilty, convicted and sentenced him as under:--

"Therefore, in the circumstances of the case the accused is convicted under section 302(b), P.P.C. (as amended) and is sentenced to life imprisonment and fine of Rs. 25,000. In default of payment of fine he shall undergo three months' R.I. He is in custody and is given benefit of section 382-B, CI.P.C."

Feeling aggrieved of the said judgment the appellant filed the present appeal challenging the judgment passed by learned Additional Sessions Judge, Usta Muhammad.

2. Brief facts for filing of the appeal are that on 12-8-1992 at about 10-00 a.m. one Muhammad Hashim lodged a report with Bhagtail Gandakha Police Station that at 3-00 a.m. he alongwith his family and brothers were sleeping in his house. Accused came and called Abdul Karim. When Abdul Karim went out on the call, P.W. Sabir also accompanied him. After a while he heard firing reports. The complainant woke up and went towards the place of firing and saw his brother Abdul Karim lying dead in a pool of blood near the house of Kalay Bakhsh. It was also informed that thereafter Kalay Bakhsh killed his sister-in-law Mst. Aminat in his house and declared both the deceased as "Siahkars".

3. Upon this report, the police registered Crime No.21 of 1992 and started investigation. During investigation a shot-gun (Article P.17) was recovered and memo. Exh.P/5-A was prepared. P.W.6 Dr. Shah Bakhsh Medical Officer,.Usta Muhammad conducted post-mortem of the deceased and of Mst. Aminat on 12-8-1992 and issued Certificate Exh.P/6-A and Exh.P/6-B respectively. After completing the necessary investigation the accused was challaned and tried by Additional Sessions Judge, Usta Muhammad.

4. In support of the accusations, the prosecution examined the following witnesses:--

(1) P.W.1 Muhammad Hashim,

(2) P.W.2 Sabir,

(3) P.W.3 Muhammad Khan,

(4) P.WA Muhammad Mansha,

(5) P.W.5 Shah Nawaz,

(6) P.W.6 Shah Bakhsh, and

(7) P.W.7 Nabi Bakhsh.

5. Besides, the accused was also examined under section 342, Cr.P.C. However, he did not prefer to give statement on oath under section 340(2), Cr.P.C.

6. After appreciating the evidence brought on record, the learned Additional Sessions Judge found the accused-appellant guilty and convicted and sentenced him as mentioned hereinabove.

7. Heard Mr. Amanullah Khan Kanrani as well as Syed Ayaz Zahoor, Advocates for appellant and Mr. Muhammad Yaqub Khan Yosufzai, learned Advocate-General, Balochistan for the State.

8. Before proceeding further it would be befitting to take into consideration the evidence brought by the prosecution on record. P.W.1 Muhammad Hashim is the first informant who lodged F.I.R. No.21 of 1992. He deposed .in the trial Court that deceased Abdul Karim was his brother. He was called at 3-00 a.m. by accused Kalay Bakhsh present in the Court, and then he was killed. While .the deceased went out of his house on the call of accused Kalay Bakhsh he was 'accompanied by Sabir, brother of the witness, who was sent back by Kalay Bakhsh. After when Sabir came back they heard gunshot reports. They then went and saw Abdul Karim lying dead in a pool of blood. They saw accused Kalay Bakhsh was holding shotgun and was running towards the house. Accused Kalay Bakhsh killed his brother's wife Mst. Aminat at his house declaring both as Siahkar. P. Ws. Nihal, Sabir alongwith this witness also saw the incident. The witness then went and lodged the report. He produced F.I.R. in the Court as Exh.P.A. In cross-examination, however, he was confronted with the fact of hearing report of gun shots. It was found that he had stated to the police about the same. However, it was suggested to the witness that in fact Ali Murdan fired and killed the deceased which fact was denied by the witness. He also denied the allegation that Atta Muhammad, Rahib and Mahnaz were injured in the incident.

9. P.W.2 Sabir gave statement in the aforementioned lines. In cross examination he had said that when he came back he went asleep. The fact that he saw Kalay Bakhsh having a shotgun and running towards his house had not been stated by him in his police statement. He also explained that as he was younger, therefore, he was not allowed to go outside the house. He also denied the suggestion that his brother Ali Murdan had fired as a result of which deceased Abdul Karim and Mst. Aminat were killed and Rahib, Atta Muhammad and Mahnaz were injured.

10. P.W.3 Muhammad Khan also supported the same version. Besides he is a witness to the memo. Exh.P/3-A (blood-stained earth secured by the police). He produced Article P.1 and Article P.2 before the Court. He is also witness to recovery of four empty cartridges of .12 bore shotgun Exh.P.6 to P.9 vide memo. Exh.P/3-C and Article P.5 which he identified in the Court. Exh.P.3-D is the memo of site inspection note which was signed by this witness.

11. In cross-examination this witness stated that house of Kalay Bakhsh is at a distance of 10/12 paces from their house. When confronted with his police statement it was found that he had not told the police that when deceased was called by accused Kalay Bakhsh, Sabir also went with him. Again he denied that it was P.W.1 Muhammad Hashim who had informed hirii about the incident and this fact was mentioned in the police statement which was confronted to the witness and it was found that it has been so recorded. He also denied that Ali Murdan fired and killed Abdul Karim and injured Rahib, Mahnaz and Atta Muhammad.

12. P.W.4 Muhammad Mansha is a formal witness regarding recovery of blood-stained clothes of deceased and Mst. Aminat. Similarly P.W.5 Shah Nawaz deposed that on 26-8-1992 he was posted at Gandkha Police Station. S.H.O. Nabi Bakhsh was interrogating accused Kalay Bakhsh. During investigation Kalay Bakhsh disclosed that he was ready to produce the weapon with which he committed the murder., on which the accused was handcuffed and taken to, Goth Ali Nawaz. The accused took out a shotgun from the room situated on southern side of his house and S.H.O. took the same in possession vide Exh.P.5/E. The witness identified his signatures and also identified Article P.17 the shotgun.

13. In cross-examination this witness stated that S.H.O. did not call any private witness from the village to testify about this fact.

14. P.W.6 Dr. Shah Bakhsh performed autopsy and found fire-arm wound on the body of deceased Abdul Karim as well as Mst. Aminat. These were not challenged by the defence.

15. P.W.7 Nabi Bakhsh was S.H.O. and Investigating Officer. He also testified about the recovery of blood-stained earth, recovery of shotgun, recovery of empties, registration of a case under section 13-E of the Arms Ordinance against the accused. He also produced ballistic expert report as well as report of the Analyst regarding blood-stained clothes.

16. In cross-examination he stated that he had searched the house of the accused but did not find crime weapon on the first day. He denied the suggestion that shotgun was produced by the complainant party and was foisted upon the accused.

17. In his statement recorded under section 342, Cr.P.C. the accused Kalay Bakhsh took a specific plea while replying question No.9 that the witnesses are set up by the prosecution. They being relatives of Ali Murdan who had committed this offence but was saved by the police. He did not prefer to give statement on oath and also he did not choose to produce evidence in defence.

18. The learned trial Court believed the ocular testimony and also the circumstantial evidence of recovery of shotgun at the pointation of accused, the empties recovered from the place of incident and the report of the Ballistic Expert confirming that empties recovered from the spot had been fired with the same shotgun (Article P.18).

19. Syed Ayaz Zahoor urged that the evidence brought on record by the prosecution has not been properly appreciated by the trial Court. According to him the contradictions as brought on record in cross-examination are very material but the learned trial Court totally ignored the same. Another important point raised was that the incident has not taken place as: put forth by the prosecution because in the incident three persons namely Rahib, Atta Muhammad and Mahnaz have also been injured and referring to the statement of Investigating Officer learned counsel submitted that the Investigating Officer has clearly admitted that a case under section 324, P.P.C. has been registered against Ali Murdan on the report of one Abdul Hameed. Ali Murdan is son of Muhammad Hashim who lodged the F.I.R. and the defence has throughout suggested to the prosecution witnesses that Ali Murdan had killed both Abdul Karim and Mst. Aminat. According to the learned counsel the version as given by the prosecution is belied from the circumstantial evidence because if accused Kalay Bakhsh had killed Abdul Karim and Mst. Aminat then who was responsible for causing injuries to Atta Muhammad, Rahib and Mahnaz.

20. Learned Advocate-General, Balochistan, however, supported the judgment on the ground that in view of the ocular testimony which is corroborated from the' factum of recovery of shotgun at the pointation of accused and report of the Ballistic Expert that the empties had been fired from the shotgun which was recovered from the house of Kalay Bakhsh fully justify the conviction of the appellant. According to learned A.-G. in fact appellant had committed double murder on the pretext of Siahkari which had never been proved on record.

21. While attending to the main objection raised by the appellant's counsel it may be noted that suggestion have been made to the prosecution witnesses that it was Ali Murdan who was responsible for murder of Abdul Karim and Mst. Aminat. In order to support this contention the defence counsel has relied on the statement of Investigating Officer who admitted that a case under section 324, P.P.C. has been registered against Ali Murdan on the complaint of one Abdul Hameed.

22. The main thrust of argument advanced by the appellant was that the appellant continuously put a suggestion to the witnesses of the prosecution that it was Ali Murdan who was responsible for causing injuries to Rahib, Atta Muhammad and Mahnaz as well as causing death of deceased Abdul Karim and Mst. Aminat. Of course a mere suggestion to the said effect would not be sufficient for- proving the defence version unless positive evidence comes on record to prove the suggestion or at least from prosecution evidence something comes out to prove the probability of the suggestion hence we want to dispose of this preliminary objection first. We are not at all impressed from this argument for the following reasons:--

(a) The appellant was given an option to get his statement recorded on oath but he did not prefer to give a statement under section 340(2), Cr.P.C. on oath.

(b) The appellant was given an opportunity to produce evidence in defence but no evidence in defence was produced. It is a settled law that when the defence makes a specific allegation, then it must be proved f through evidence or at least something should transpire from the prosecution evidence in support thereof. But neither the appellant produced any evidence in defence nor said plea was proved from the evidence produced by the prosecution.

(c) The evidence and the fact that an F.I.R. under section 324, P.P.C. was registered against Ali Murdan also does not extend any help to the defence for the reason that the said F.I.R. was never produced nor brought on record, hence it cannot be inferred that the said incident has taken place during the same transaction or was relatable to the incident of murder.

(d) It is revealed from the judgment of learned trial Court that Ali Murdan has been acquitted even of the charge of injuring the three persons as mentioned hereinabove.

(e) The defence could conveniently produce injured Mahnaz, Atta Muhammad and Rahib to prove that they were injured during the same incident in which Abdul Karim and Mst. Aminat were killed but none of them was produced in this case, as a witness.

(t) The defence version/suggestion is otherwise illogical, unconvincing and most improbable in the circumstances of the case because deceased Abdul Karim was real uncle of Ali Murdan. Firstly there was no motive for Ali Murdan to kill his real uncle and secondly that Abdul Karim was sleeping in the same house and could be killed, if at all, they are in the house but his dead body was found behind the house of appellant wherefrom empties were recovered.

Furthermore there was no occasion for Ali Murdan to go out of his house and commit murder of his uncle near the house of Kalay Bakhsh.

23. For all such reasons we are not convinced from the arguments that Ali Murdan was responsible for causing injuries, or committing double murder.

24. After having held so, we now proceed to assess the evidence brought by prosecution as against appellant Kalay Bakhsh.

25. We have already reproduced the summary of depositions of the eye witnesses. P.W.1 Muhammad Hashim, P.W.2 Sabir, P.W.3 Muhammad Khan have all deposed that accused Kalay Bakhsh called Abdul Karim (deceased) at 3-00 a.m. It was also stated by them that when deceased Abdul Karim went out of the house of P.W.2 Sabir accompanied him but Sabir was sent back by accused.

26. P.W.1 Muhammad Hashim, P.W.2 Sabir and P.W.3 Muhammad Khan have all stated that deceased Abdul Karim was called at 3-00 a. m. by accused Kalay Bakhsh from his house. When deceased Abdul Karim in response to the call went out, Sabir also accompanied him but he was sent back by Kalay Bakhsh. According to P.W.1 when Sabir was sent back he heard gun shot reports. According to P.W.2 Sabir when he came back he heard gun shots. According to P.W.3 Muhammad Khan he heard gun shots after half an hour when Sabir returned.

27. In the F.I.R. Muhammad Hashim stated that when Sabir was asked by Kalay Bakhsh to go back, and after a while, he heard gun shots and he was awakened from sleep. So also P.W.2 Sabir had stated in his statement recorded by police that when he came back from outside he went asleep. This he has admitted in the cross-examination before the trial Court.

28. Thus, all the three eye-witnesses have stated that after when deceased Abdul Karim was called by Kalay Bakhsh and Sabir was sent back by accused they all went asleep. They woke up only on the report of firing.

29. Another important point in the ocular testimony is that P.W.1 Hashim did not state in the F.I.R. that when he went out, he saw Kalay Bakhsh having shotgun in his hand and running towards his house. P.W.2 Sabir in cross examination stated that he has not stated in his police statement that when he came back from outside he heard gun shot reports and on this, he went outside again where he saw deceased Abdul Karim in a pool of blood. Similarly he had not stated before the police that he saw Kalay Bakhsh with a shotgun running towards his house. Rather he stated that he being younger was not allowed to go out from the house. He was informed about the incident later on that Kalay Bakhsh had murdered his uncle and Aminat. In view of above, following facts emerge:--

(a) P.W.2 Sabir did not go out of the house after hearing the reports of gun shot. Therefore, he could not see Kalay Bakhsh having a shotgun.

(b) The fact that Kalay Bakhsh was seen having a shotgun in his hand and running towards his house had not been mentioned by P.W.1 in his F.I.R. However, the fact is mentioned that Kalay Bakhsh then killed Mst. Aminat.

(c) Similarly P.W.3 Muhammad Khan stated that he, Sabir, Nihal and Hashim went outside and saw Abdul Karim in a pool of blood behind the house of Kalay Bakhsh.

30. The conclusion is that none of the eye-witnesses had seen Kalay Bakhsh having a shotgun in his hand. So much so that P.W. Sabir categorically stated that he did not go out of the house.

It is thus established that the eye-witnesses have improved their statements as given before the police. Their testimony to this extent, therefore, becomes doubtful and cannot be believed.

31. From the circumstances and evidence it appears that deceased Abdul Karim had made an attempt to go towards the house of Kalay Bakhsh having illicit relations with Mst. Aminat but he was seen and fired at because Mst. Aminat was sister-in-law of accused Kalay Bakhsh. Dead body of Abdul Karim was found near the house of Kalay Bakhsh as is indicated from the site plan. Although there exists no medical evidence that he committed any sexual intercourse with Mst. Aminat but the circumstances would go to show that Kalay Bakhsh suspected him having illicit relations with Mst. Aminat.

32. The testimony of all the eye-witnesses that Kalay Bakhsh called deceased Abdul Karim after midnight at 3-00 a.m. as he has some work with him is highly improbable. It is also not believable that a person should call another at the late hours after midnight on the excuse of some work. If at all it be so, then obviously the brothers of the deceased who were all sleeping in the same house must have accompanied or at least gone out to see as to who was calling at such late hours and for what purpose. But none went out except young Sabir who was not allowed to go out when reports of gun shots were heard.

33. However, the circumstantial evidence is sufficient to implicate Kalay Bakhsh with the commission of offence.

34. The remaining part of the ocular testimony cannot be rejected outright. The principle of indivisibility of credibility of maxim "Falsus in uno falsus in omnibus" is conditional and depends upon the circumstances of each case. If a C portion of ocular testimony finds strong corroboration the same cannot be kept out of consideration or brushed aside lightly. Reliance if at all necessary can be made to Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC 11. After hearing the gun shot reports all the inmates of the house including P.W.1 and P.W.3 woke up and went to the spot which was not situated at a long distance. They saw Kalay Bakhsh who killed Mst. Aminat.

35. These facts find support and corroboration from the statement of P.W.7 i.e. the Investigating Officer who prepared Exh.P.7/A. From perusal of Exh.P.7/A, it is revealed that there is a watercourse between the house of deceased and houses of accused. Deceased crossed the bridge and was going towards the house of Mst. Aminat. Obviously he had no work after midnight or he had no reason or rhyme to go there at such late hours but for meeting Mst. Aminat. Incidentally Kalay Bakhsh who fired at him saw him and after killing him killed Mst. Aminat. From the circumstances i.e. recovery of empties from the spot memo of Wardat, these facts find full support. The blood-stained earth beneath the dead bodies were found human blood. The ballistic expert p report revealed that the empties were fired from the shotgun recovered at the pointation of Kalay Bakhsh. Thus, Kalay Bakhsh was responsible for committing murder of both Abdul Karim and Mst. Aminat.

In cross-examination the Investigating Officer stated that the distance between the two houses was about 80/85 paces. It is exactly mentioned in the memo of site inspection that the distance is 80/85 paces.

36. An objection, however, was raised that despite the fact that womenfolk were present and there were other persons present in the village but they were not called to be the witnesses of the recovery of shotgun. It was further pointed out that if at all there was a shotgun the Investigating Officer should have seen the same at the first day when the house of Kalay Bakhsh was searched. We are not convinced by these two arguments for the reason that in a case where Siahkari is alleged normally the people abstain to become witnesses. Secondly Kalay Bakhsh must have concealed the shotgun, which was not seen if at all S.H.O. searched the house cursorily in the first instance. The record does not reflect any previous enmity between the complainant party and the accused party. The motive of double murder, therefore, in the circumstances was nothing but Siahkari as alleged by the accused. In the F.I.R. P.W.1 stated that Kalay Bakhsh declared both the deceased as Siahkar. In order to avoid the situation the eye-witnesses made an attempt to introduce another story by saying that Kalay Bakhsh called deceased Abdul Karim at 3-00 a.m. as he had some work. We have disbelieved this piece of evidence. In fact Abdul Karim must have illicit relations with Mst. Aminat. After when he thought that every body had gone in sound sleep, he got up to contact Mst. Aminat. However, as ill-luck would have it, Kalay Bakhsh who killed both saw him.

37. From the aforementioned discussion we have come to the conclusion that there is strong circumstantial evidence against Kalay Bakhsh. Every piece of such evidence corroborates the other. Both the deceased were killed with shotgun as stated in the F.I.R. This fact finds support from post-mortem report. The dead bodies were found just near the house of Juma Khan who was husband of E Mst. Aminat but there is no evidence that he was present. Adjacent to the said house in the same compound there is house of Kalay Bakhsh who was apprehending some illicit relations of Mst. Aminat with deceased Abdul Karim. He, therefore, killed both of them on account of suspected Siahkari.

38. Attending now to the quantum of sentence as awarded by the lower Court, the circumstances of the case may be further assessed. At the cost of repetition it may be stated that prosecution witnesses who were closely related to deceased Abdul Karim, tried to avert allegation of Siahkari by stating that Abdul Karim was called at midnight at 3-00 a.m. by Kalay Bakhsh as he had some work with him. This portion of the statements of prosecution witnesses has already been disbelieved by us. It appears to us that the witnesses endeavoured to wash away all the allegations of Siahkari. It is a fact that dead body of Abdul Karim was found just near the house of Kalay Bakhsh and Juma Khan. The deceased had no reason to go to their house at late hours of the midnight. In other words the accused who has committed the offence, in view of the circumstances of the case, did so to protect his family honour. Mst. Aminat was not wife of present appellant but his sister-in-law, therefore, no ulterior motive of false allegation of Siahkari can be attributed to the appellant. Nothing has been brought on record to indicate any other motive for commission of the murder. Similarly no previous enmity between the parties has been alleged. Thus inescapable conclusion would be that suspected Siahkari was the only motive for the murder.

39. In our considered view, therefore, the offence fals under section 302(c), P.P.C. We, therefore, dismiss this appeal but reduce the sentence from imprisonment for life to 10 years' R.I. Benefit of section 382-B, Cr.P.C. shall also be given to the accused/appellant. Resultantly the appeal is dismissed but sentence is reduced to 10 years' R.I.

40. Here we would like to mention that appellant had also filed Criminal Jail Appeal No.37 of 1994 but thereafter he engaged a counsel to file a separate appeal. This judgment, therefore, shall dispose of both the appeals bearing Criminal Appeal No.35 of 1994 and Criminal Jail Appeal No.37 of 1994.

N.H.Q./485/Q Order accordingly.