ALI NAWAZ Versus THE STATE

1. SALEEM AKHTAR, J. -- Ali Nawaz the appellant in Criminal Appeal No. 208 of 1987 has been convicted under section 302, P.P.C. and sentenced to death and fine of Rs.5,000 in default R.I. for six months. He was further convicted under section 460, P.P.C. to undergo R.I. for six years and to pay a fine of Rs.1,000 and in default of payment of fine to further undergo R.I. for six months. Ali Mohammad appellant in Criminal Appeal No. 233 of 1987 has been convicted under section 460, P.P.C. to undergo R.I. for six years and to pay fine of Rs.1,000 or in default of payment of fine further R.I. for six months. We have heard all these appeals and confirmation case together, and propose to dispose of by this judgment.

2. Briefly the facts are that Mohammad Yousuf the complainant lodged F.I.R. that he lives in village Mevo Chandio and the house of his cousin deceased Sher Khan is near his house. On 28-7-1982 in the night at about 1-00 a.m. he heard three gun shots in the house of Sher Khan and cries of Mst. Nawabzadi. He got up and ran towards the house of Sher Khan. Arbab, Piral, Piaro and others also came out of their houses. The complainant had a torch in his hand and all these persons saw in the torch light and identified accused Ghulam Hussain, Ali Nawaz Babbar, Ali Mohammad Babbar and Soomar all armed with guns coming out from the house of Sher Khan where the cot of the deceased was lying and running towards east. All these persons went after them, but the accused persons fired in the air and gave a Hakal to, them that if they came near them they would be killed. All these persons therefore, stopped due to fear and the accused went away firing in the air. They then came back and saw that Sher Khan was lying dead on the cot. He had received gun shot injuries on the left shoulder and left rib and was bleeding. A lantern was burning in the courtyard of the house of the deceased. Mat. Nawabzadi told them that she was sleeping near the cot of her deceased brother in the courtyard of his house when all of a sudden she heard fire report at about 1-00 a.m. near the cot of Sher Khan and was awakened and identified Ali Nawaz, Ali Mohammad, Ghulam Hussain Joyo and Soomar Babbar who had guns in their hands. Sher Khan was lying on the cot and they were firing at him. She raised cries on which all these persons came and saw and identified the accused who were running away from the courtyard of Sher Khan after murdering him. It was also stated that they have murdered because they suspected that their relative Gul Sher Babbar was murdered last year by the brother of the deceased Jehanio. A case was lodged by Soomar against Jehanio in which Jehanio was challaned. As murder of Sher Khan was committed at odd hour in the night they had remained with the dead body and after leaving the above witnesses, the complainant had come to lodge the report. The report was lodged at 7-45 a.m. on 28-7-1982. The S.H.O. Mohammad Ilyas recorded" the F.I.R. and alongwith police constables Din Mohammad and Mohammad Ali and complainant reached the Wardat pointed out by him in the courtyard of the house of Sher Khan. Mashirnama was prepared in the presence of Mashir Mohammad Bux and Mehar. He obtained blood-stained rally from under the dead body which was secured and sealed. Three empty cartridges of Shaheen Company were lying near the cot of the deceased which were secured. The S.H.O. also secured six other empty cartridges at the eastern side towards the house of the deceased and prepared a Mashirnama of Wardat. An inquest report of the dead body of the deceased was also prepared in the presence of Mashirs. The dead body was sent for post-mortem and thereafter the S.H.O. went in search of the accused but could not trace them out. He recorded the statements of witnesses and also got recorded statements under section 164, Cr.P.C. before the Mukhtiarkar. The blood-stained clothes were sent for chemical examination and Tapedar was asked to prepare a sketch. After collecting the post-mortem report, the report of chemical examiner and completing necessary formalities challan was produced before the Civil Judge and F.C.M. K.N. Shah showing all the accused except Ali Mohammad who was in custody in District Jail Dadu in some other case and was shown as absconder. Ali Nawaz, Ghulam Hussain and Soomar were declared absconders. Coercive proceedings under section 87 ware ordered by the learned trial Court. In the' meantime Soomar and Ali Nawaz were apprehended and subsequent challan was produced in Court. Ali Nawaz and Ali Mohammad were later on arrested in some other crime and were bailed. Accused Soomar was also granted bail but subsequently he succeeded in absconding and was therefore, declared absconder. By order, dated 26-9-1987 the case proceeded against him in his absence.

3. Medical report submitted by the Medical Officer clearly proves that the deceased. Sher Khan was killed by gun fire shots. According to the medical report the second, third and fourth ribs were fractured and heart and left lung were torn. The prosecution examined eleven witnesses. The appellants pleaded not guilty and stated that they have been falsely implicated due to enmity. Their` statement on oath was also recorded in which the same stand was taken.

4. The learned counsel for the appellants have contended that no proper evidence has been produced to establish conclusively that the prosecution witnesses had seen the accused persons and had recognised them. In order to appreciate this contention first it is necessary to establish where the offence had been committed. In this regard the memo of Wardat was prepared by the Mukhtiarkar after a period of more than 4/5 years. Therefore, hardly much reliance can be placed on it; but it seems that it was prepared on the statements made by the prosecution witnesses particularly Yousuf the complainant. All the persons have stated that the deceased was murdered in his house. Yousuf and other witnesses have also testified that when they care running after hearing the gun shots and cries of Nawabzadi they found the accused persons running out from the house of the deceased. Therefore, all these witnesses have tried to establish that the offence was committed inside the house of the deceased. In this regard the evidence of the Investigating Officer seems to be very material. There is no dispute that he had reached the place of incident in the morning with the complainant. He had examined the place of Wardat and also made the Mashirnama of Wardat. It is stated in the Mashirnama of Wardat that the place of Wardat is in front of the house in courtyard of deceased Sher Khan where the cot was lying and the corpse of Sher Khan was lying on it. Therefore, the place of Wardat where Sher Khan was murdered is in front of the house and not inside, the house. The sketch prepared by the Tapedar also shows the same position. The witnesses have used the word courtyard, but none of them have stated that this courtyard was surrounded by any boundary wall. From the Mashirnama of Wardat it is clear that the open space in front of the house has been termed as courtyard.

5. The prosecution has tried to maintain that the accused persons were identified while running away from the scene of offence. In order to identify them they have relied upon the light of the lantern and also the torch which was in the hand of Yousuf. The torch and the lantern were produced as case property, but there is nothing on record to show that when it was secured it was in a working condition and could flash sufficient light. So is the case about lantern which is of a small size. According to the prosecution witnesses they were coming on hearing the cries of Mst. Nawabzadi and the gun shot and when they reached the house of Sher Khan the accused were coming out of the house and running away. This statement contradicts the facts stated in the Mashirnama of Wardat because if the place of occurrence is outside the house there is no question of the accused persons coming out of the house. The prosecution witnesses are very positive in their statement and have stated that when they went inside the house they saw the deceased body riddled with bullets and Mst. Nawabzadi stated the entire incident. It is not clear from the evidence how in such a short period all these prosecution witnesses who are stated to be the eye-witnesses had collected together although they reside on different directions and then in the light of torch flashed by Yousuf all of them recognised the accused persons. It was admittedly a dark night and the accused persons were in flight. In these circumstances without describing the exact distance from where the witnesses had seen and identified in the torch light, it is difficult to rely on such statement as possibility of misjudging the identity cannot be ruled out.

6. The other piece of evidence relied upon by the prosecution is that accused were seen in the light of the lantern. The position of the lantern at the time of offence is also not fully and conclusively established. In fact Arbab P.W. 2 in his statement under section 164 stated that he had seen the accused in the light of lantern and torch. The manner in which the incident has occurred and witnesses have deposed it was not possible to see the accused person in both the lights. According to the prosecution witnesses they were running out of the house and while they were running away they were seen in the light of the torch, then how is it possible that Arbab could have seen in the light of lantern. Arbab has stated that he, Pir Bux, Piaro and Yousuf went into the house of the deceased where they saw that Ali Mohammad and Ali Nawaz armed with guns were leaving the cot of the deceased and started running towards east. They also saw Soomar and Ghulam Hussain running at some distance from them, but he could not say what was in their hands. He is a 70 years old person and was unable to recognise what was in the hands of Soomar and Ghulam Hussain although the other witnesses have stated that they had guns and were firing. It seems doubtful that the accused who was running away in dark night could be recognised by him in the torch light. P.W.3 Pir Bux on the date of examination was 75 years of age. He would have been at the time of incident about 70 years old but in his statement under section 164, Cr.P.C. he has given his age as 50 years. He also stated that the lantern was burning in the courtyard where he saw the accused persons armed with guns running away from there. He admitted that his eye-sight is weak. In his statement under section 164, Cr.P.C. he stated that Mohammad Yousuf had a lantern in his hand and in its light they identified the accused persons. In view of the aforestated infirmities it seems doubtful that in torch light the accused could have been recognised by the witnesses. In this regard reference can be made to 1968 P Cr. L J 590, 1970 P Cr. L J 633 and 1982 P Cr. L J 808. The rule laid down by these authorities is that identification in torch light is not a sufficient and reliable evidence for conviction unless it is corroborated by some other independent evidence. In case where the accused are in flight in dark night and are claimed to have been identified in torch light the possibility of mistaken identity cannot be rule out. Unless such evidence is corroborated by independent evidence it is neither reliable nor sufficient for conviction.

7. So far the position of the lantern is concerned Mst. Nawabzadi stated that the lantern was kept burning on a Separate cot at the side of the deceased. Her mother was sleeping on a separate cot while she was sleeping on another cot. Therefore, according to her statement there were four cots near the cot of the deceased. According ,to P.W.1 the lantern was burning in the courtyard of the house of the deceased. P.W.2 Arbab has stated that the lantern was hanging on a Lathi by the side of the deceased's cot towards the feet of the deceased. Now here this witness has give a different version of the place of lantern and has tried to improve the case by putting it at a higher level with a view to show that from that place its light could spread covering greater area and accused could be recognised. Otherwise all other witnesses have stated that either it was burning in the courtyard lying on the cot or it was near the feet of the cot of the deceased. Pir Bux stated that the lantern was burning in the courtyard. Investigating Officer has stated that the dead body of the sher Khan was lying on the place of Vardat and there was another cot on the foot of which the lantern was hanging. Therefore, all the prosecution witnesses seem to have differed so far the position of the lantern is concerned. Mr. Hashmi the learned counsel for the appellant Ali Nawaz has contended that in view of the contradiction with regard to the position of the lantern it cannot be ascertained whether the lantern was in such a position that from its light the accused persons could be identified by Mst. Sahibzadi not to talk of the other P.Ws. This aspect can be considered from two points of view. Firstly that if the incident had occurred inside the house, then the question of seeing the accused by the complainant Arbab, Pariyal and Piyaro in the light of lantern does not arise. If the deceased was killed in the open courtyard outside the house then when the afore-stated P.Ws. came they saw the accused running away from the scene. Even then it is not possible to see them in the light of the lantern because by the time the P.Ws. came out of their houses, the accused seem to have run away from the place of incident and would have reached at such a distance that they were completely out of reach of the lantern light. Therefore, the question of recognising the accused in the light of lantern has become very doubtful.

8. Mr. K.M. Nadeem the learned counsel for Ali Mohammad has contended that it is customary that whenever people go to sleep they lower the lantern's wick making it dim and place it either in the corner or at a convenient place on the ground, and therefore, in the dim light of the lantern the accused could not have been recognised. The learned counsel has also referred to Thangai v. State 1983 PCr.LJ 1227 where it was observed that 'the normal course of human conduct in rural areas is to either extinguish the light before going to sleep or lower the wick of the lamp so low that it gives very dim light in which it is hard to identify persons'.

9. In the light of the aforestated authority we cannot exclude from consideration the normal human conduct and habit that in rural areas usually before going to bed the lantern's wick is lowered to make the light dim. The lantern is usually kept at a safe distance from the cot to avoid any mishap and insects, which may throng on the light. In such circumstances, identification in the light of the lantern becomes doubtful. The quality of evidence produced by the prosecution for identification is weak and conflicting. Only Nawabzadi could be said to have seen and recognised the accused in the lantern light. But in view of the conflicting position of the lantern and in view of the authority quoted above in dim light of lantern a woman who is not stated to have known the accused by face nor was familiar with them could hardly recognise them. Therefore, the prosecution has failed to conclusively prove that in such light or in the manner as stated by the prosecution witnesses they could have recognised the accused.

10. Mr. Hashmi the learned counsel for the appellant Ali Nawaz has further contended that the prosecution has failed to establish conclusively that the appellants have committed the offence. In this regard besides the aforestated contentions he has pointed out that at the place of offence the number and location of cots as stated by the prosecution witnesses is contradictory and conflicting. As discussed Mst. Sahibzadi, Yousuf, and Investigating Officer who reached the place of incident at about 11-00 a.m. have given number of the cots and their position. But the number and placement vary. Mr. Hashmi further challenged the authenticity of even the presence of Mst, Nawabzadi who has stated to have been present in the house of her brother, the deceased for the reason that her mother was sick, Strangely enough her mother has not been examined, and the Investigating Officer has stated that when he inquired about the mother she was not there. These circumstances make the presence of Mst. Nawabzadi at the time of incident doubtful. The husband of Mst. Nawabzadi resides in the adjacent house and according to her, his cot was also at some distance from the cot of the deceased but although he was in a position to witness the offence his presence has completely been ignored. According to Nawabzadi her husband was sleeping about five paces away from the deceased then he should have also witnessed the crime. But his presence has not been mentioned by any other witness and no explanation has been offered for not examining him.

11. In this background the contention of Mr. Hashmi that there is a delay in lodging the F.I.R. which makes the entire case very suspicious is of great force. The incident had occurred at about 1-00 a.m. and the police station is stated to be about 6/7 miles. In Col. 5 of the Report Exh.10 the distance of police station from the scene of incident is stated to be 5 miles. The prosecution has tried to give explanation for the delay. P.W. Yousuf stated that as the offence was committed at odd hour they waited till such time that there was sufficient light and then he proceeded on foot and got the bus for reaching the police station. The complainant was not the any person who had come to the place of incident. There were at least four persons available immediately who had reached that place and it was not at all necessary that the complainant should have waited in the company of all these persons for such a long period. The time taken in lodging the F.I.R. and the discrepancy in the statements of prosecution witnesses reflects adversely upon the prosecution case. It seems that time was taken for manipulation and manoeuvring. In this regard the learned counsel has referred to 1979 P Cr. L J 558. The delay has not been properly explained by the respondents which is sufficient to cast doubt on the authenticity of the prosecution case.

12. It may be noted that all the prosecution witnesses are related. No doubt mere relationship is no0 sufficient to discredit the testimony of a witness if he is truthful. In the present case as discussed above the testimony of P.Ws. is rampant with contradictions on material facts. They had been at the scene of incident and deliberating for hours before lodging the report. In these circumstances the relationship is sufficient to discredit such witnesses.

13. The prosecution has also relied on the recovery of empties and the blood-stained rally but as the guns were not recovered mere recovery of empties cannot connect the accused with the crime. Likewise the blood-stained rally can only prove that the deceased died on the cot on 'which rally was spread. These facts by themselves do not improve the prosecution case.

14. The appellants have been convicted under section 460, P.P.C. as well. From the above discussion and analysis of the evidence it is clearly established that the deceased was murdered in open space outside the house. In these circumstances it is to be seen whether the offence under section 460, P.P.C has been made out.

15. In an offence under. section 460, P.P.C. the prosecution must prove that the accused entered into the house after sunset and before sun rise and has caused or attempted to cause death or grevious hurt to any person. For purposes of bringing a case under section 460, P.P.C. the prosecution must establish that the accused has committed lurking house trespass by night or house breaking by night and has Voluntarily caused or attempted to cause grievous hurt or death. Mr. Nadeem the learned counsel for the appellant Ali Mohammad referred to Shamsuddin v. The State 21 D L R 312(2). This was a case under section 457 for committing lurking house trespass and it was observed that unless it is proved that the accused had entered the house or remained there after the hour of sunset and before the hour of sunrise to commit an offence he could not be convicted. Reference has also been made to Baji v. Emperor A I R 1933 Oudh 163 in which the prosecutrix was sleeping in a shed, the doors of which were wide open and she had her cot close to the door. The accused went there with the object of committing adultery or rape with her and it was held that no offence of house breaking by night or house-trespass was committed. In Kohmi v. Emperor A I R 1914 Lah. 584(2) it was held that the cattle enclosure encircling an open space by wall or a fence cannot be deemed to convert the open space into building and conviction under section 457, P.P.C. was not maintained. As is obvious, in the present case the murder does not seem to have been committed in a house or building. In any event the commission of offence by the appellants has not been conclusively proved. In these circumstances conviction under section 460, P.P.C. cannot be upheld. For these reasons by an oral order, passed earlier we had refused to confirm the death sentence, allowed both the appeals and have set aside the conviction passed by the trial Court.

16. M.Y.H./A-358/M Appeals allowed.