HAQDAD KHAN Versus STATE
MUHAMMAD AFZAL ZULLAH, J .-By his judgment, dated 2nd December 1968, the learned Additional Sessions Judge, Mianwali has convicted Haq Dad Khan under section 302, P. P. C. and has sentenced him to death, for the charge of the murder of one Aslam Khan in the area of village Wandha Jalandarwala, District Mianwali, on 14th August 1967. The convict has appealed and the reference under section 374, Cr. P. C. for the confirmation of death sentence is also before us. This judgment will dispose of both the matters.
2. The prosecution case is that the deceased who belonged to village Wandha Chalbalianwala had gone to village Wandha Jalandarwala to stay with his maternal uncle Haq Dad Khan son of Fateh Khan (P. W. 8). After about 10/12 days .on 14th August 1967 at about jhikki digerwela, Haq Dad Khan P. W., his fson Arsala Khan (P. W. 9) and the deceased were sitting in front of the baithak of Haq Dad Khan P. W., when the deceased went out to urinate. Haq Dad Khan appellant and his younger brother Abdul Jabbar Khan (since acquitted) carne armed with firearms. Haq Dad Khan fired a rifle shot at the deceased which hit him but the shot fired by Abdul Jabbar Khan was ineffective. The above-mentioned two P. Ws. and Alam Khan (P. W. 10) saw this occurrence. The deceased who was still alive was taken to the District Headquarters Hospital, Mianwali. On the information received from Dr. Muhammad Aslam (P. W. 1), Allah Bakhsh, Head Constable (P. W. 12) reached the hospital and recorded the statement of the injured (Exh. P. A.) at 7-30 p.m. F on the same day. On the basis of this statement, a case was sub sequently registered at Police Station Mianwali Saddar at 7-40 p.m. The distance between the place of occurrence and the Police Station is about six miles while the hospital is about a mile away from the Police Station. The motive for the offence is stated to be a fight, about 6 or 7 months before the occurrence, in which Muhammad Aslam deceased and Ghulam Muhammad (P. W. 7) gave a beating to Muhammad Aslam, a brother of Haq Dad Khan appellant.
Muhammad Muqarrab Khan (P. W. 13) investigated the case. He recovered the blood-stained earth and sealed it into a parcel vide memo. Exh. P. C. and also took into possession chadar (Exh. P. 1) and bunian (Exh. P. 2) vide memo. Exh. P. D. They belonged to the deceased and were sent by the doctor through Khan Muhammad Constable (P. W. 3). The appellant made himself scarce. A search was made but he was not available in the village. He, however, was produced before and arrested by Ch. Karam Ilahi, S. H. O. (P. W. 11) on 7th September 1967. It is in the statement of Muhammad Latif Lance-naik (P. W. 4) that the appellant was in the Army. He was on leave from 7th August 1967 and was to report back on 21st August 1967 at Risalpur. He absented himself and was declared a Military Deserter. His statement is supported by official Army record produced by him.
Aslam Khan died on the same day at about 7-35 p.m. The post-mortem examination conducted on 15th August 1967 at 9-30 a.m. by Dr. Muhammad Aslam revealed the following injuries :--
(1) A gun shot wound of entrance " x ". Margins were occhymosed and were inverted on the back and outer side of right buttock and iliac crest directed towards the left.
(2) A lacerated gun shot wound of exit " x " on left side of abdomen 1" above and to left of umbilicus directed backward.
Both the pleurae were adherent to the chest wall and both the lungs were tubercular. The peritoneum was full of blood and faecal matter. The stomach and bladder were empty. Small intestines were badly lacerated in two coils and the faecal matter was oozing out. There was a fracture of the i71a:- zkest. The death was due to shock and haemorrhage and true injuries were sufficient to cause death in the ordinary course of nature. The death was within a few hours after the deceased received the injuries and the post-mortem was conducted within 24 hours of the death. The injuries were caused by firearms and were grievous and dangerous in nature. The description of the injuries obviously shows that while injury No. 1 is the entry wound, injury No. 2 is the corresponding exit wound. Therefore, the deceased was hit by one shot only.
3. At the trial, the above-mentioned account of occurrence was supported by Haq Dad Khan, Arsala Khan and Alam Khan P. Ws. The statement (Exh. P. A.) made by the deceased at the hospital was relied upon as dying declaration. The plea of the appellant and his co-accused was of denial qua the motive as well as the occurrence. The appellant was questioned about his desertion from the Army before the committing Magistrate. His explanation was that his leave was to expire on 21st August 1967 but he was arrested on 15th August 1967 therefore, he could not report for his duty. At the trial, however, he was -asked only about his being on leave at the time of occurrence, to which he replied in the affirmative. In support of his plea of false implication, he further stated that he was suspected of having illicit connections with the daughter of Haq Dad Khan P. W., therefore, he was falsely implicated.
The learned trial Judge believed the dying declaration as genuine and true. He also believed the eye-witnesses and having found the appellant guilty, convicted him under section 302, P. P. C. He, however, acquitted Abdul Jabbar Khan co-accused by giving him the benefit of doubt and with the observation: "However strong the probability may be, but no one can be convicted on probabilities alone".
4. The learned counsel for the appellant has argued that the so-called dying declaration (Exh. P. A.) was never made by the deceased, the eye-witnesses are related to the deceased and no independent person from the locality having come forward to support the prosecution case, the eye-witnesses in this case should not be believed without strong corroboration. About the other confirmatory evidence, the learned counsel stressed that no question was asked from the appellant in respect of his abscon dence and relying on the case of Siraj Din (1) contended that the factum of abscondence should not at all be used against the appellant. He further contended that the alleged motive has been disproved and that the eye-witness account has been contradicted by the doctor. Lastly, he contended that the credibility of the eye-witnesses being indivisible, they should not be believed against the appellant because they have been disbelieved against Abdul Jabbar Khan co-accused.
5. After going through the evidence, we cannot agree with the learned counsel that the dying declaration was never made by the deceased. But such circumstances have appeared in the statement made by the doctor at the trial, that it will not be in safe dispensation of justice to rely on the dying declaration. The doctor informed the police about the death of Aslam Khan, vide letter (Exh. P. F.). It shows that the injured expired at 7-35 p.m. According to Allah Bakhsh (P. W. 12), the dying declaration was recorded at 7-30 p.m. The doctor stated that no police officer was in the hospital at 7-33 p.m. while according to Muhammad Muqarrab Khan S. L, Allah Bakhah Head Constable was still in the hospital when he reached there at 8-45 p.m. Allah Bakhsh had stated before the Committing Magistrate that he arrived "in the hospital to record the statement of Muhammad Aslam deceased on the receipt of ruqqa Exh. P. F". The exhibit mark in the committing Court for ruqqa Exh. P. F. is the same as at the trial (Exh. P. F.) Allah Bakhsh, Head Constable (P. W. 12) has also made, at least, three different statements in respect of what he did immediately
(1) P L D 1964 S C 26 after his arrival at the hospital. We have noticed from original Exh. P. F. that the time of death was initially mentioned by the doctor as 7-30 p.m. Digit `0' of 30 is overwritten and has been made into `5' making it 7-35 a.m. Similarly, the time given under the date as 7-30 a.m. has subsequently been changed into 7-45 p.m. The change appears to be in the same handwriting. If the information about death was recorded and sent at 7-30 p.m., it becomes doubtful if the dying declaration could also be recorded at 7-30 p.m. The discrepancy may have arisen out of genuine mistake. But these being no explanation for that, we cannot resolve this question in favour of the prosecution. And lastly, there is another circumstance which makes it unsafe to rely on the dying declaration. According to the doctor, in his supplementary statement at the trial, the injured was admitted in the hospital". He further stated "I do not remember if the statement of the deceased was recorded by any police officer in my presence before he expired". A little later, however, he con tradicted himself by saying that the statement (Exh. P. A.) was made ,q by the injured person and was recorded by the police in his presence and further that he was in perfect senses at that time. In view of this contradictory position adopted by the doctor, who is a very important witness in respect of the dying declaration, we consider it safe to exclude the same from consideration.
6. It is true that the two eye-witnesses, i.e. Haq Dad Khan and Arsala Khan, are closely related to the deceased while Alam Khan is related to him in about third degree. But we are not ready to ignore their statements for this reason alone. Firstly because Haq Dad Khan appellant is also closely related to Haq Dad Khan P. W., in that Mst. Azizan, the sister of the appellant is married to Sarfaraz, a sister's son of Haq Dad Khan P. W. This statement of Haq Dad Khan P. W. was not challenged in cross-examination. It would mean that the eye-witnesses are almost equally related to both the parties. And secondly because, admittedly, the deceased was outsider and had come to stay in the village of the appellant. It is difficult to imagine that the co-villagers who are also closely related to the appellant would B falsely implicate him in a case relating to an outsider. This also explains why no independent person appeared to support the prosecution case. And thirdly because, except for a vague suggestion and that too only at the trial stage in respect of the illicit connection of the appellant with the daughter of Haq Dad Khan P. W. which, of course, was denied, there is absolutely no indication in the evidence to show that these witnesses had any motive to falsely implicate the appellant in a murder case.
There is yet another circumstance which needs to be noticed. The place of occurrence is - at a distance of about 40 to 45 karanis from the bafthak of Haq Dad Khan P. W. His house is also nearby. There is nothing to indicate that the time of occurrence given by the prosecution has been falsely advanced so as to make it a day-light occurrence. The stomach of the deceased was empty. This would also show that the occurrence took place at about the time alleged by the prosecution. Therefore, it is not unnatural for Haq Dad Khan and his son to have seen the occurrence from their baithak at the time and place disclosed in their statements. We, therefore, hold that Haq Dad Khan rind Arsala Khan P. Ws., even though they are related to the deceased, are natural witnesses and they, having no reason to falsely implicate the appellant and also for the various reasons discussed above, are truthful witnesses. The learned counsel cited Habibullah and others v. The State (1) to contend that the relation ship of, a witness with both the parties cannot make him an impartiAl witness. He has ignored the fact that in the case before their Lordships, on the analysis of the P. W. concerned therein (Khuda Bakhsh), it was found that there were certain inherent improbabilities in the story given by him. Moreover it was found, as their Lordships put it, that there was "no love lost between him and Ahmad", appellant in that case. In the present case, there are no such circumstances to bring any of the eye-witnesses at par with the witness who was under discussion in the cited case. Another ruling of their Lordships of the Supreme Court which would apply to this case is contained in Lalu v. The State (2). The relationship of a witness with the accused person in that case was considered as having contributed to his credibility. The following observations of their Lordships of the Supreme Court are particularly attracted to the present case: -
"In the examination of the ocular evidence which was very closely consistent as to the facts of the ambush and the attack, the learned Sessions Judge placed in the forefront of his discussion the fact that the Kamdar Sultan is related to the accused person, whose fathers were his `Masares' which apparently means that they are related to him through his mother's sister. Sultan gave his caste as Lohar Burdi, which also is the caste of the three accused persons. He is a man aged 70 years, and has been working as Kamdar for Abdul Latif and his father before him for a period of some 30 years. A very good reason why, in mentioning the names of the actual murderers in the first information report, there should not have been any false implication of innocent persons, lies in the fact that the reporter was a very senior member of the caste of the accused persons, being also nearly related to them and however great his loyalty might be to his master, the deceased, and the latter's family, that would not be a reason inducing him to exaggerate the matter by the false implication of innocent persons, since the crime was being reported against his own near relations.
The learned counsel also contended that the witnesses have been contradicted by the medical evidence. The two circumstances pointed out by him are that according to the doctor the angle of the entry and exit wound being at 45 degrees, the assailant may have fired the shot either in sitting or in lying position. And secondly that the bladder of the deceased was found empty; therefore, the witnesses told lie when they deposed that the deceased had gone to urinate. It is not the
(1) P L D 1969 S C 127 (2) P L D 1959 S C (Pak.) 258 case of the prosecution that the deceased had not yet urinated when he received the injury or that after receiving the injury, he did not pass his urine. If the urge was strong, the, passibility that be may have passed his urine cannot be excluded. About the position of the assailant, it would suffice to mention that there was a fracture of the iliac crest and the bullet thus having struck on a hard surface, may have deflected. Therefore, it cannot be said that due to the opinion expressed by the doctor which does not appear to be based on any sound reasons, the eye-witnesses should be held to have been contradicted.
It was next contended that Alam Khan P. W. has made some improvements in his statement at the trial. One such improvement is that the witness had stated before the committing Magistrate that it was jhikki peshiwela when the occurrence took place while at the trial he improved it to jhikki digerwela. The witness did not deny the statement having been made before the committing J Magistrate and candidly admitted that he wrongly stated the time as jhikki pcshiwela. It is not an unusual mistake and does not appear to have been motivated by anything affecting the credibility of the witness. The statement of this witness was criticised also because he is said to be not only related but also a chance witness. He has given the distance of his house from that of Haq Dad Khan P. W. as 60 karams. It would mean that his house is not far away from the place of occurrence. The statement of the witness that he at the time of occurrence was going from his house to Tatlanwala was not challenged in cross-examination. Therefore, there is no material on the file to come to a conclusion that his presence at the spot was improbable. After considering all the contentions raised by the learned counsel and going through the statements of the eye-witnesses, we hold that they are the witnesses of truth.
7. The evidence given by the eye-witnesses, in our view is not such which may need corroboration. However, the facts that the appellant made himself scarce after the occurrence and became a Deserter from the Army and remained in abscondence till 7th September 1967, can be used in support of the prosecution case. It is true that abscondence of a few days after the occurrence by a person accused of a capital offence may be natural for fear of harassment. But abscondence like the one in the present case, where the accused person not only avoided arrest but also failed to report at his duty in the Army at the risk of being declared as a Deserter, can be taken note of against him. Learned counsel for the appellant cited Siraj Din v. ICala and another (1) in support of the contention that the factum of abscondence should not, at all, be taken note of. He has parti cularly relied on following observation at page 36 of the report:-
"A person who has been named as a murderer, whether rightly or wrongly, usually makes himself scarce."
We bow before this observation but with respect point out that M in that case it was not laid down as a general rule that
(1)PLD1964SC26 abscondenco of whatever type and nature should .never be used as evidence of conduct against an accused person. In the same case at page 43, it was observed as follows: --
"The fact moreover that for two days the accused could not be found at his house by the police who were looking for him, is a pointer in the direction of his guilt."
Similarly, another learned Judge made the following observation at page 50 of the report: -
"They (the learned Judges of the High Court) also at the same time did not take into consideration the absconding of the appellant and the circumstances, in which he was arrested, although they did not reject that evidence."
It is true that in that case the decision was given in favour of the accused person, on the consideration of the entire evidence, by a majority of three: against two learned Judges. But the fact remains that all the five learned Judges wrote separate judgments and only three of them considered the question of abscondence. The observation relied upon by the -learned counsel was made by the then learned Chief Justice with which the other two learned Judges, who considered the question of abscondence, did not agree. Two learned Judges did not particularly consider the question of credibility of the eye-witnesses. Therefore, the ruling cited by the learned counsel does not help him. And we hold that it all depends upon the circumstances of each case whether or not the conduct of an accused person, in having made himself scarce after the occurrence, should or should not be used against him. We have noticed from the examination of the appellant before the committing Magistrate as well as before the learned trial Judge that he was put questions about his desertion from the Army and that he very well knew about the evidence on that question having been led against him. In fact; he offered an explanation that he could not join the duty on 21st August 1967 because he was arrested on 15th August 1967. We have already noticed that according to the statement of Ch. Karam Ilahi (S. I.), he was arrested cm 7th September 1967 and this statement was not challenged in cross-examination, though an opportunity was afforded. Therefore, in the circumstances of this case, we hold that the conduct of the appellant, to borrow the language used by one of their Lordships of the Supreme Court, "is a pointer in the direction of his guilt".
8. The last content5on of the learned counsel that the credibility of the witnesses is not divisible need not be discussed in detail. The findings of the learned Additional Sessions Judge in respect of acquittal of Abdul Jabbar Khan are based on probabilities and lie has been given benefit of doubt. We have excluded the dying declaration and in so far as the eye-witnesses are concerned, they are consistent on the fact that the second ineffective shot, alleged to have been fired, by Abdul Jabbar Khan, was at a later stage when Aslam Khan had already been hit by the shot of Haq: Dad Khan appellant; and that the witnesses had either reached the injured or were on their way to him. This fact also must have influenced the learned Additional Sessions Judge. Therefore, it is not a case in which the eye witnesses have been found t(;) have told a lie in respect of the implication of an accused person: Thus this circumstance also does not benefit the appellant. It was contended that the motive alleged by the prosecution has not been proved. It is true that if we look at the motive given in the dying declaration and that given in the statement of Ghulam Muhammad (P. W. 6), some difference can be noticed. But we have excluded the dying declaration from consideration and there is no inherent defect in the statement of Ghulam Muhammad P. W. so far as motive is concerned. It appears that there was an estrangement between the deceased on the one side and the appellant on the other. The fact whether or not the appellant has another brother by the name of Aslam Khan does not make any difference.
9. So far as the plea of the appellant to the effect that he has been falsely implicated by Haq Dad Khan P. W. due to the latter's suspicion about the former's illicit connection with his daughter is concerned, we have no doubt that the same is an after-thought and further that it has no direct or indirect support of any circumstance. The learned counsel, however, developed a theory of his own at this appellate stage, that the deceased was found in compromising position with the daughter of Haq Dad Khan P. W. who killed him and after spreading his (deceased's) clothes on his body foisted the blame on the appellant, who must have been suspected of having immoral connection with Haq Dad Khan's daughter. There is not an iota of evidence to support this, we must say very imaginative argument. We, therefore, repel the same.
It was pointed out by the learned counsel that t ere is no bullet mark on the bunian of the deceased. The bunian has been examined. It is of small size as compared to the body of the deceased (well-built in 5'-8" height). Apart from others there are many concentrated perforations in the corner of the blood-stained chadar which was removed from the dead body. This shows that the bullet passed through the folds of the dubb which must have been tied on or above the umbilicus (the region of the exit wound). If that is so, the bunian may have stayed or tucked above the dubb. Therefore, it was not perforated. The doctor was not asked whether it was necessary, in view of the meat of the injury and the above facts, that the bunian should have been perforated. We attach no importance to this circumstance. Similarly, the fact that the report of the Serologist has not been produced and the source of blood, as human, on the earth and the clothes of the deceased has not been determined, is of no significance. We have believed the ocular evidence, according to which there is no doubt either about the place of occurrence or about the fact that the deceased was wearing the bunian and the chadar in question and that they were removed from his dead body.
10. The result is that there is sufficient evidence against the appellant to maintain his conviction under section 302, P.P. C. No extenuating circumstance has either been urged, or noticed by us. Therefore, we also maintain the death sentence awarded by the learned trial Judge. The same is confirmed, with the result that the appeal by the convict is dismissed.
Appeal dismissed.