SAIFULLAH vs The STATE

ASLAM RIAZ HUSSAIN, J.--This Appeal by Saifullah is directed against the judgment of the Lahore High Court dated 26-3-1980, dismissing his appeal in a case under section 302, P.P.C., confirming his death sentence.

2. Saifullah appellant was accused of the murder of Ghulam Qasim, which took place at late Peshiwela between 3/4 p.m. On 24-9-1975, in the area of Kundian Railway Crossing at a distance of 12 miles from Police Station Sadar Mianwali. Soon after the occurrence Khan Muhammad Khan, A.S.I. P.W.8 Police Post Kundian arrived at the spot on receiving information of the occurrence at a place near the Octroi Post Kundian when he happened to be present at that the. He recorded the statement Exh.D.D. Of Ghulam Muhammad P.W.6 (and uncle of the deceased) at 4.45 p.m. The formal F.I.R. Exh.P.D/1 was registered at the Police Station Sadar, Mianwali, on the basis of this statement on the same day at 6.30 p.m.

3. The motive for the murder is stated to be that Mst.Kausar a niece (sister's daughter) of the deceased was married to Abdul Karim a brother of Saifullah accused /appellant. Due to strained relations with her husband she left his house and started living in the house of the deceased. In spite of demand by the accused party the deceased was not agreeing to send her back the house of her husband. On the day of occurrence at about noon-the, Abdul Karim and Saifullah appellant had a quarrel with Ghulam Qasim deceased over the return of Mst. Kausar. It is stated that this quarrel eventually led to the present occurrence.

4. According to the F.I.R., on the fateful day Ghulam Muhammad P.W.6 alongwith Ghulam Jilani P.W.7 after taking fodder from his landwas returning to Kundian. When they reached near the gate of railway level crossing, they heard noise in the direction of north, among the sand dunes, and saw that the appellant had felled down the deceased, who was a gateman of the railway level crossing, and was inflicting Chhuri blows on him. The to eye-witnesses rushed towards the scene of crime but on seeking them the assailant left the deceased and ran away, taking the Chhuri with him.

4-A. After recording the statement of Ghulam Muhammad, P.W.6, the Investigating Officer prepared the necessary documents and sent the dead body of the deceased for post-mortem examination.

The accused was arrested on 25-9-1975 by the A.S.I. While in custody he led to the recovery of a blood-stained Chhuri (P. 2) which was subsequently found by the Serologist to be stained with human blood.

5. Dr. Asghar Ali, M.O. D. HQ. , Hospital Mianwali P.W.1 who had performed the post-mortem found a total of 14 injuries on the body of the deceased out of which 5 were incised wounds and the remaining were abrasions which had been caused by blunt weapon.

6. At the trial the prosecution relied on the ocular testimony of Ghulam Muhammad P.W.6 an uncle of the deceased and Ghulam Jilani P.W.7 (a partyman of the deceased). It also relied an the evidence of the recovery of Chhuri from the accused; evidence of motive and the medical evidence.

7. The accused denied his guilt and pleaded innocence. In defence, he tendered to documents, i.e. To telegrams Exhs. D.D. And D.E. Sent by Muhammad Ashfaq, Assistant Station Master, to the S.H.O.

Civil Police Station Kundian, and S.H.O. Railway Police informing him of the murder, on the same day, in the following words:- "Muhammad Ramzan, Cableman informed that at 16.15 hours that gateman Ghulam Qasim found dead near the northern side of gate. Pl. Take necessary action."

The receipt of these telegrams has been admitted by Khan Muhammad Khan, A.S.I., P.W.8. It may be mentioned that 'Muhammad Ramzan Cableman', referred to in these telegrams has himself appeared as a prosecution witness in this case.

8. The learned trial Court relied on the prosecution evidence and convicted the accused-appellant under section 302, P.P.C. And sentenced him to death. He filed an appeal before the High Court which was dismissed vide-the impugned judgment dated 26-1-1980, and his sentence of death was confirmed.

9. Feeling aggrieved he filed a petition before this Court and leave was granted to him by order of this Court dated 12-1-1981, to consider the effect of the to telegrams referred to above and to see whether their contents falsify the to eye-witnesses.

10. We have heard the learned counsel for the appellant as well as the learned State counsel, at considerable length and have also gone through the judgments of the to Courts below as also the relevant evidence on the record.

10-A. The question to be considered is a simple one. According to the eye-witnesses namely, Ghulam Muhammad P.W.6 and Ghulam Jillani P.W.7, the occurrence took place at about 3.30 p.m., and they witnessed it because at that the they happened to be passing by the railway crossing where the deceased was employed as a gateman. They have stated that they were attracted to the spot on hearing the noise and going near they saw Saifullah inflicting chhuri blows to Ghulam Qasim deceased. On seeing them the assailant ran away alongwith the knife. The to eye-witnesses then went near the deceased, who had admittedly not died as yet. About what happened later Ghulam Muhammad P.W.6, who is real maternal-uncle of the deceased has deposed as follows:- "Ghulam Qasim deceased expired about half an hour after the infliction of injuries to him. We saw the location of the injuries and after the departure of the accused when we came near the dead body. I did not bandage the wounds of the deceased nor did I put his head in my lap. I did not administer any water to him. I did not take the cot from the Kothi for carrying Qasim to the hospital.

I did not send Ghulam Jilani nor Abdullah to the house of the deceased, hospital or to the Police Post. I do not remember if any other person of the locality came there when Ghulam Qasim was alive. I was present at a distance of one or to Karams from Ghulam Qasim when he expired. The other to eye-witnesses also remained with me. I did not touch the dead body before the arrival of the police. The deceased writhing and blood was coming out of his wounds and spreading on the ground when he was breathing his last. We did not raise any alarm to attract the other persons to the spot. The ground where the occurrence had taken place is sandy. The accused ran towards the east of the place of occurrence."

To say the least this was extraordinarily strange conduct on the part) of such close relative.

However, before dealing with the main question, namely the effect of the information sent by Muhammad Ramzan P.W.4 to the Assistant Station Master, which is mentioned ?n the aforementioned to telegrams, it would be useful to refer to the statement of Muhammad Ramzan P-W.4. Who is also a real maternal-uncle of the deceased being the brother of Ghulam Muhammad P.W.6. At the relevant the he was employed as a Cabinman on the same railway line.

The relevant portion of his statement is as follows:- "My cabin is situated at a distance of 40/50 Karams from the level crossing, towards its south. The deceased was employed on this level crossing. Cabin where I was on duty is double --storied and I was present in the first storey which is about 2 feet high., .The cabin was surrounded by painted glasses. Only the windows facing the railway line were open. Kundian-Mianwali railway track is directed from south to north. The outer signal towards the north is installed at a distance of 1J furlongs from the cabin. The windows on the north could be used also to see the northern signals and the coming train. The northern railway crossing is connected with by cabin and is operated from there. Railway-crossing is closed before the arrival of train from the northern side about ten minutes before its arrival. The home --signal is downed first and then the outer one. According to the railway mechanism and instructions the driver will stop the train if the outer signal is not downed. In case the railway gate is open the outer signal would not be downed. From the cabin if the lever is properly pulled and adjusted in the proper groves it is considered as a sufficient indication that the gate is closed. It is correct that the gate-keeper physically closes and opens the gate. Unless the cabin-man releases the lever from the cabin the gate cannot be opened by the gate-keeper. The cabin is connected with the level crossing the bell. First of all the cabin-man rings the bell and on that bell the gate-keeper closes the gate and rings back the bell in acknowledgment of his bell and after that the cabin-man puts the signal down for the incoming train. The railway crossing is visible from the cabin. No tree or building intervenes between the cabin and the crossing."

He stated further that he had reached the spot at 4 p.m. And that the Investigating Officer who was already present there had not recorded his statement. The learned defence counsel thereafter cross---examined this witness and confronted him with the statement Exh.D.A. Recorded by the Investigating Officer on the same day. It reads as follows: - "It is correct that the deceased was on duty on the day of occurrence from 8 a.m. To 4 p.m. It is incorrect to suggest that at about 3.30 p.m. a train coming from the side of Mianwali stopped. I did not state so before the Police (Confronted with Exh.D.A. So recorded). It is incorrect to suggest that I did alarm but I did not get any reply and the railway gate remained opened. I did not state so in Exh . D . A . (Confronted, so recorded). I did not inform the A.S.M. About this fact or that the A . S. M.

Instructed me to close the gate, and release the point. I did not state so. (Confronted, so recorded).

It is incorrect to suggest that I closed the gate and the train passed of to the railway station. I did not state so in Exh. D.A. (Confronted, so recorded). It is incorrect to suggest that I remained on my duty till 4 p.m. After that I went to the spot. I did not state so in Exh. D.A. (Confronted, so recorded). It is incorrect to suggest that I went to the room of the deceased near the railway crossing and found his apparels lying there. I did not state so in Exh. D . A . (Confronted, so recorded).

In order to close the gate the gate-keeper inserts the key in the lock, and then from the cabin the lever is released. It is incorrect to suggest that I went to the room of the gate-keeper, got the key from there, inserted in the lock and closed the gate and after that I went to my cabin, to allow the train, towards the railway station. It is incorrect to suggest that I searched for the dead body after 4 p.m. When my duty was over and found the dead body of the deceased all alone in the sand- dunes. It is incorrect to suggest that after seeing the dead body I went to my cabin and informed the A.S.M. About the murder of Ghulam Qasim deceased.

Only one train passed during my duty hours on that day. The train passed at 3.20 p.m. This train goes from Mari Indus to Leiah. It is incorrect to suggest that it is the same train about which I have referred above that it stopped outside the signal at 3.30 p.m. I also passed a shuttle train coming from Mari till Kundian at about 11.30 a.m. On that day. No other passenger train passed in between these to trains."

11. Apart from the fact that it is apparent from the above-noted cross-examination that Muhammad Ramzan P.W. Has tried his best to suppress certain facts which he had mentioned in his earlier statement Exh. D.A., the following facts are brought out from his cross-examination:- - "That his cabin is situated at a distance of 40/50 Karams from the level crossing where Ghulam Qasim (deceased) was employed as a gateman; that Ghulam Qasim was required to close the gate at the level crossing whenever a train was to pass from there that the procedure was that the cabin-man (Muhammad Ramzan P.W.4) was to ring the bell informing the gateman of the expected arrival of the train, whereupon he (i.e. Ghulam Qasim gateman had to turn key in the gate and thereafter close the gate. This would result in pulling of certain wires resulting in the adjustment of the lever in the Cabin in its proper grove. The gateman would then ring back the bell in acknowledgment of the bell received by him from the cabin. Thus, informing the cabin-man that the gate has been closed. It is thereafter that the cabin-man is able to pull the signal down for the incoming train. If the gate is not closed and the signal is not downed, the train would stop and the engine driver would not take it beyond the level crossing.

It has also been brought on the record through this witness (Muhammad Ramzan P.W.4) that on the day of occurrence a train had to pass the level crossing at 3.20 p.m., but according to his statement made before the police, with which he was duly confronted at the trial that the said train had stopped at the level crossing at 3 .30 p.m., as the gate at the level crossing was open. He admitted that he rang the bell but got no reply from the gateman (Ghulam Qasim deceased). He therefore informed the Assistant Station Master and, on receiving instructions from him, he personally went to the gate and closed it after first obtaining the key from the room occupied by Ghulam Qasim (deceased). At that the the deceased was not present there and it is only after the train had passed and the gate was reopened that he found Ghulam Qasim gateman, lying dead in the sand dunes at a short distance from the railway crossing, and immediately informed the Assistant Station Master Muhammad Ashfaq about it on the telephone (a telephone connection being always available between the cabin and the railway station). On receiving this information from Muhammad Ramzan P.W. The Assistant Station Master at once sent to telegrams referred to above.

12. These facts clearly go to show that Muhammad Ramzan P.W.4 was the first person to see the dead body of Ghulam Qasim deceased. He was at the railway crossing for quite some the from 3.20 p.m. Onward, closing and reopening the gate at the level crossing, as Ghulam Qasim had already been murdered by that the, otherwise he would himself have performed this function. It is noteworthy that Muhammad Ramzan P.W. Admittedly did not see anyone else at the spot nor does the information given by him to the Assistant Station Master refer to the presence of any witness at the spot. Thus a reading of these telegrams completely excludes the presence of Ghulam Muhammad P.W.6 and Ghulam Jilani P.W.7 at the spot at the relevant the.

13. Considering all the facts on the record we are of the view that it was an unwitnessed occurrence and Muhammad Ramzan P.W.4 was the first person to have seen the dead body lying on the sand dunes.) On seeing it he rushed to inform the Assistant Station Master on the telephone about the discovery of the dead body. We have therefore no option but to exclude the testimony of the aforementioned to witnesses from consideration with the result that no evidence is left on the record to connect the accused with the crime in question, as the recovery of the blood-stained knife, even if believed, could only be used as l evidence corroborating the testimony of the eye- witnesses, if any. But since evidence of the eye-witnesses in this case has been excluded this recovery is hardly of any use.

14. The result of the above observations is that the appeal is allowed, the impugned judgment set aside and Saifullah appellant is acquitted. He shall be set at liberty forthwith unless wanted, in some other case.