The State Vs. Nowsha alias Nowser. (Syed Md. Ziaul Karim, J.)

Evidence Act (I of 1872)

Section 8

Since motive is not ingredient of offence prosecution is not bound to prove the motive of the accused for committing the crime. Motive does not play an effective role when premeditated and cold blooded murder is committed and established by irrefutable evidence. What is important is the nature of evidence and not the motive which may or may not be proved. None proof of motive cannot be a ground to discard the unimpeachable evidence. Proof of motive or previous ill feeling is not necessary to sustain conviction when court is satisfied that appellants are assailants of the victim, but once motive was setup it was to be proved by the prosecution beyond doubt and failure to furnish cogent and reliable evidence could lead to adverse inference against prosecution. Absence of motive is not ground for acquittal. Particularly when ocular evidence is reliable and corroborated by medical evidence.                                        …(50 to 52).

Penal Code (XLV of 1860)

Section 307 and 34

There is no incriminating act of attempt to commit murder of wounded victim Kasem by accused Nannu and Hazrat Ali. PW-2 stated that accused Shamsu (since dead) and accused Ishak (since deceased) caught hold of his son Kasem and P.W. 3 Abul Kasem did not state any incriminat-ing evidence against the appellants in respect of attempt to commit him murder and other PWs merely heard the occurrence from PWs. 2 and 3. Therefore, there is absolutely no evidence against those appellants in respect of charge under Sections 307, 34 of the Penal Code. So their conviction and sentence cannot be sustained.

…(57)

Code of Criminal Procedure (V of 1898)

Section 376

As to the sentence the learned Advocate for the condemned prisoner submits that there was no premeditation for murder so the sentence of death should be commuted. Regards being had to the facts and circumstances of the case the sentence of imprisonment for life will meet the ends of justice instead of death.                                                         …(59)

PLD 1965 Lah. 656; 39 DLR 437; 33 DLR 274; AIR 1998 SC 107; 11 BLT 155; 40 DLR 58; 42 DLR (AD) 31; 10 MLR (AD) 175; PLD 2001 SC 339; PLD 2000 Kar 128; PLD 1999 Lah 56; AIr 2003 SC 3975; 57 DLR (AD) (2005) 75; 1968 Cr. LJ 1251; 7 MLR (2002) 119, 51 DLR 103; 1968 Cr.L.J. 962; Noor Md. Vs. State 1999 MLD (Pakistan Monthly Law Digest) 60 ref.

Mr. M. A. Mannan Mohan, D.A.G. with

Mr. Md. Mahbub Ul Alam, A.A.G.

Mr. Md. Osman goni, A.A.G. and

Mrs. Nasima Khatun, A.A.G.

…For the State.  

Mr. Bahar Uddin Al Razi, Advocate with

Mr. Md. Abul Basher, Advocate

…For the Condemned Prisoner

And

Mr. Md. Alal Uddin, Advocate,

…For the Convict-Appellants.

Judgment

Syed Md. Ziaul Karim, J:

        This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Additional Sessions Judge, fourth Court, in-charge, Dhaka for confirmation of death sentence of condemned-prisoner, who was convicted under Sections 302 and 307, 34 of the Penal Code and sentenced to death by hanging and rigorous imprisonment for five years and also to pay a fine of Tk.5,000/= in default to suffer rigorous imprison-ment for six months more respectively.

1. 2.           By the above Criminal appeal the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 12-04-2006 passed by learned Additional Sessions Judge, fourth Court, in–charge, Dhaka in Session Case no. 72 of 1999 convicting them under Sections 307, 34 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for five years and also to pay a fine of Tk. 5,000/= each in default to suffer rigorous imprisonment for six months more.
2. 3.           This death reference and the above appeal having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.
3. 4.           Facts in brief are that Hazrat Ali a resident of Samair of P.S. Savar was a manufacturer of country made wine. The local youths by taking wine used to do illegal and unsocial acts. On protest of it local Union Parishad member Sadem Ali (P.W.1) brought the dish (f¡¢am) (used for manufacturing wine) from the house of Hazrat Ali. On 27-06-1992 at 8:00 p.m. accused Nowsa, Hazrat Ali, Shamsu, Nannu and Ishak(since deceased) and others happened at home of Sadem Ali (P.W.1) and asked to return the dish (f¡¢am). On its refusal by Lal Banu (P.W.2) and Kasem (P.W.3) wife and son of Sadem Ali respectively, the accused dragged out Kasem towards south west, Lal Banu (PW-2) followed them, accused Nowsa opened fire towards Kasem. Accused Ishak protested it by standing in front of Kasem but both of them were wounded by shooting. Later Ishak succumbed to the injuries at the spot and Kasem recovered after treatment. On alarm locals namely Aleya Khatun (P.W.6), Kadam Ali (P.W.4), Habib, Hanif, Mania Khatun and others rushed to the scene and heard the occurrence. With these allegation prosecution was launched by lodging a first information report (briefly as FIR) by Abdul Kader (P.W.8) maternal uncle of deceased Ishak which was recorded as Savar P.S. Case no. 40 dated 28-06-1992 corresponding to G.R. no. 242 of 1992.
4. 5.           The Police after investigation submitted charge sheet under Sections 302, 307,114 of the Penal Code accusing FIR named four accused namely Nowsa, Shamsul Haq, Nannu and Hazrat Ali.
5. 6.           During pendency of the case accused Shamsu alias Shamsul Haq died. Initially charge was framed on some erroneous facts. Later it was rectified to one under Sections 302 and 307, 34 of the Penal Code to which the accused on dock pleaded not guilty and clamed to be tried.
6. 7.           In course of trial the prosecution in all examined twelve witnesses out of thirteen charge sheeted witnesses and the defence examined none.
7. 8.           After closure of prosecution case, the accused on dock were examined under Section 342 of the Code, again they repeated their innocence and led no evidence in defence.
8. 9.                           The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that the deceased was murdered by unknown assailants and due to previous internal feud between them accused were falsely implicated out of vengeance by rivals.
9. 10.       After trial the learned Judge convicted the accused as aforesaid.
10. 11.        The learned Deputy Attorney General appearing for the State supports the reference and submits that P.Ws. 2 and 3 are the eye witnesses to the occurrence. They categorically narrated the occurrence which was corroborated by other prosecution witnesses. The learned Counsel lastly submits that the order of conviction and sentence is based on evidence on record which calls for no interference by this Court.
11. 12.       The learned Advocate appearing for the condemned-prisoner opposes the reference and submits that there are discrepancies between the inquest and time of occurrence as shown in FIR. He adds that virtually there was no eye witness to the occurrence and the conviction and sentence based on misreading and non consideration of the evidence on record.
12. 13.       The learned Counsel appearing the appellants submits that there is absolutely no evidence against the appellants Nannu and Hazrat Ali in respect of attempt to commit murder of wounded victim Kasem. So the prosecution failed to prove the charge in respect of appellants. He lastly submits that in the facts and circumstances of the case their conviction and sentence cannot be sustained in the eye of law.
13. 14.       In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
14. 15.       Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
15. 16.       P.W.1 Sadem Ali is the father of wounded victim Kasem and was union Parishad member at the relevant time. He deposed that on 27-06-2002 at 8:00 p.m. accused Nowser, Ishak, Nannu, Shamsu and Hazrat Ali came to his home in his absence. They abused him as he use to protest for manufacturing wine by Hazrat Ali and brought the dish used for preparation of wine. He heard the occurrence from his wife and son to the effect that accused Nowsa had a gun and they asked for dish, but his wife and son replied in negative. Later the accused dragged his son Abul Kasem towards south west and his wife followed them. Accused Nowsa pointed gun towards his son, on protest by Ishaq, accused Nowsa opened fire causing injuries to them. Accused Ishaq instantaneously died at the spot. On screaming by his wife locals rushed to the scene and the accused departed. Later his son was recovered after treatment.
16. 17.       In cross-examination he stated that on 28-06-1992 Police took his signature in inquest report. He denied the suggestion that due to previous enmity he was deposing falsely.
17. 18.       P.W. 2 Lal Banu is the mother of wounded victim Abul Kasem and wife of P.W.1. She deposed that on 27-06-1992 at 8:00 p.m. accused Nowsa, Hazrat Ali, Shamsu, Nannau and Ishaq came to their home in absence of her husband. Nowsa had a gun with him and they asked for dish. On their refusal accused dragged his son towards south west, She followed them. Accused Shamsu, Ishak caught hold of his son. Accused Nowsa attempted to open fire which was protested by Ishaq, despite of it accused Nowsa opened fire causing injuries at the ear of his son and neck of Ishak. Both of them fell down. Ishak died at the spot. On her alarm locals rushed to the scene. His son recovered after treatment.
18. 19.       In cross-examination she stated that the occurrence took place in her presence. She narrated the occurrence to her husband Sadem Ali. She denied the suggestion that she knew nothing about the occurrence.
19. 20.       P.W. 3 Abul Kasem was the wounded victim of the case. He deposed that on 27-06-1992 at 8:00 p.m. accused Nowsa, Ishaq, Samsu, Nannu and Hazrat Ali came to their home in absence of his father, of them accused Nowsa carried a gun, they asked for the dish. On their refusal the accused dragged him towards south west, his mother followed him. Accused Nowsa pointed gun to him, despite of protest by accused Ishak. Accused Nowsa then opened fire which caused injuries to his ear and on neck of Ishak. Both of them fell down and Ishak died on the spot. On alarm raised by his mother locals rushed to the scene and accused departed.
20. 21.       In cross-examination he stated that they had no enmity with the accused. On 28-06-1992 he made statement before the Police. He denied the suggestion that he did not receive any injury and deposing falsely.
21. 22.       P.W.4 Kadam Ali a local witness. He deposed that on 27-06-1992 at 8:00 p.m.  he heard from the mother of Kasem that accused Nowsa, Shamsul Haq, Hazrat Ali, Nannu opened fire to his son and Ishak. Ishak died on the spot.
22. 23.       In cross-examination he stated that he did not see the occurrence. He denied the suggestion that he had no knowledge about the occurrence and deposing falsely.
23. 24.       P.W.5 Salma Khatun wife of deceased. She deposed that accused Nowsa, Shamsul Haq, Nannu and Hazrat Ali murdered her husband by shooting.
24. 25.       In cross-examination she denied the suggestion that the accused did not murder her husband and deposing falsely.
25. 26.       P.W. 6 Alaya Khatun FIR named local witness. She deposed that he heard the occurrence from the mother of Kasem that accused Nowsa, Shamsul Haq, Hazrat Ali, Nannu murdered Ishak by shooting.
26. 27.       In cross-examination she stated that she did not see the occurrence but heard the incident from the mother of Abul Kasem.
27. 28.       P.W.7 Dr. Md. Rafiqul Bari. He deposed that he held autopsy upon the cadaver of Ishaq and found the following injuries:

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MwZc_t- mvg‡b nB‡Z wcQ‡b MwZc‡_ Wvb cervical nvo I Wvb cuvR‡ii nvW 1-3 ch©šÍ Pzb© wePzb© I Wvb I Wvb dzmdz‡mi Dc‡ii †jvc wQbœ wfbœ cvIqv †Mj| ey‡Ki wfZi RgvU I Zij i³ cvIqv †Mj| ÿ‡Zi wfZi nB‡Z 3wU KvW©IqvW© (GKwU fvswMqv 3 UzKiv nIqv I 20 wU Pellet i³ gvLv Ae¯’vq cvIqv †Mj hvnv jvk enbKvix Kbóej 109 †gvt iwdKzj Bmjv‡gi wbKU n¯ÍvšÍi Kiv nBj| D‡jøwLZ RL‡gi ¯’v‡b g„Zy¨ c~e©K msK‡Ui wPý we`¨gvb|

gZvgZt Avgvi n‡g GB g„Zz¨ D‡jøwLZ ¸wj we× (short gun) RL‡gi d‡j i³cv‡Zi Kvi‡b m„ó ¯œvqy hvnv ˆeKj¨ m¤úbœ hvnv g„Zz¨c~e©K I  nZ¨vRwbZ|

1. 29.       He proved the post mortem as Exhbt. 1 and his signature on it as Exhbt. 1/1.
2. 30.       In cross-examination he stated that on examination he found the above injuries.He denied the suggestion that he submitted a perfunctory report at the influence of informant.
3. 31.       P.W.8 Abdul Quader, is the informant. He deposed that deceased Ishak was his sister’s son who was murdered at the house of Sadem member sustaining shooting at neck. He heard the occurrence to the effect that accused Nowsa, Smamsu,Hazrat Ali and Nannu were present at the P.O. and Nawsha opened fire. He lodged the FIR. He proved the same as Exhbt. 2 and his signature on it as Exhbt . 2/1.
4. 32.       In cross-examination he stated that he did not see the occurrence. He denied the suggestion that he was deposing falsely.
5. 33.       P.W.9 Md. Sirajul Islam and P.W.10 Md. Yusuf Ali were the witnesses of inquest report, of whom P.W.9 proved the inquest report as Exhbt. 3.
6. 34.       P.W.11 was the local seizure list witness. He deposed that the Police seized one lamp (L¥¢f h¡¢a), blood stained earth, and some grass in his presence and prepared seizure list. He proved the same as Exhbt. 4 and his signature on it as Exhbt. 4/1.
7. 35.       He proved the seized materials as (Mat. Exhbt. i-iii).
8. 36.       In cross-examination he stated that on the following day of occurrence he went to the P.O. He did not see wherefrom the blood stained earth was collected.
9. 37.       P.W.12 S.I. Sheikh Ali Ahmed was the investigating officer of the case. He deposed that on 28-06-1992 he was attached as S.I. in Savar Police Station. The case was entrusted to him for investigation. He visited the P.O. held inquest upon the cadaver and prepared report. He sent the cadaver to the morgue for post mortem examination. He prepared sketch map and index.He proved the same as Exhbts. 6 and 7 respectively. He also seized blood stained earth along with grass. He recorded the statements of the witnesses under Section 161 of the Code. After investigation he submitted charge sheet accusing aforesaid four accused.
10. 38.       In cross-examination he stated that he had no knowledge who has written the FIR. He denied the suggestion that he held perfunctory investigation and submitted a report on the basis of such investigation.
11. 39.       These are all of the evidence on record adduced by the prosecution to prove the charge.
12. 40.       It is indisputable that slain Ishak was lynched and Kasem (PW-3) was wounded by shooting.
13. 41.       On going to the materials on record, it transpires that the prosecution in all examined twelve witnesses, of them P.Ws.1,4,5,6,8,9 and10 are the local witnesses who heard the occurrence. P.Ws. 2 and 3 witnessed the occurrence. P.W. 7 held inquest report upon the cadaver and P.W.12 investigated the case and submitted charge sheet.
14. 42.       It is pertinent to point out that the prosecution case absolutely rest upon the evidence of eye witnesses P.W.2 Lal Banu and her son P.W.3 Abul Kasem, other local witnesses were examined to corroborate their evidences. P.W. 2, Lal Banu mother of victim Abul Kasem(P.W.3) categorically stated that on 27-06-1992 at 8:00 p.m. accused Nowsa, Hazrat Ali, Shamsu, Nannu and Ishak happened at their home in absence of her husband who asked for dish(use for preparation of country made wine). On their refusal the accused dragged her son (P.W.3) toward south west, she followed them wherein accused Shamsu and Ishak caught hold of his son and accused Nowsa opened fire despite of protest of accused Ishak, causing injuries to the ear of his son and neck of Ishak. Both of them fell down and Ishak instantaneously died at the spot. However his son Kasem recovered after treatment. On her screaming locals rushed to the scene and heard the occurrence. P.W.3 Abul Kasem, was the wounded victim. He categorically corroborated the evidence of P.W.2 to the effect that he received injuries at ear and Ishak at neck. Later Ishak died at the spot, other locals namely P.W. 1, 4, 5, 6 heard the occurrence from P.Ws.2 and 3 corroborated their evidence. P.W.7, held autopsy upon the cadaver of deceased Ishak. The injuries ascertained by him provided corroboration to the ocular evidence of P.Ws.2 and 3.
15. 43.       Therefore, we find that the evidence of all prosecution witnesses are consistent uniform and corroborative with each other with all material particulars, particularly shooting to Kasem (PW-3) and deceased Ishak. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses, having no reason whatsoever to depose falsely against them. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.
16. 44.       We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)   The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)   The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)   In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)   There must be clear and unequivocal proof of the corpus delicit.

e)   The hypothesis of delinquency should be consistent with all the facts proved.

1. 45.       Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.
2. 46.       From the materials on record we find that the condemned-prisoner along with other accused being enlarged on bail remained absconding during trial. However, subsequently appellants Nannu and Hazrat Ali appeared and faced trial but condemned-prisoner remained absconding during trial. Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence (Vide PLD 1965 Lah. 656). Therefore, anything, which tends to explain his conduct and furnishes a motive other than a guilty conscience, will be relevant under the Evidence Act. Failure to explain reason for absconding after occurrence fovours prosecution (39 DLR 437). Abscondence of accused is a relevant fact. Unless accused explain his conduct, abscondence may indicate guilt of accused (33 DLR 274). Where accused absconded immediately after occurrence and remained out of reach of hand of law for more than years without showing any convincing reason for his absence, it would be an important factor going against absconder accused (AIR-1998 SC-107). Abscondence immediately after incident and also after being enlarged on bail his trial in absentia  and abscondence till today is a strong incriminating circumstances while can be considered sufficient corroboration of his participation in commission of crime(11 BLT 155).
3. 47.       The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).
4. 48.       The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.
5. 49.       Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straightfo-rward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth (40 DLR 58).
6. 50.       Since motive is not ingredient of offence prosecution is not bound to prove the motive of the accused for committing the crime (42 DLR(AD)31; 10 MLR(AD)175}.
7. 51.       Motive does not play an effective role when premeditated and cold blooded murder is committed and established my irrefutable evidence. What is important is the nature of evidence and not the motive which may or may not be proved. None proof of motive cannot be a ground to discard the unimpeachable evidence ( PLD 2001 SC 333}.
8. 52.       Proof of motive or previous ill feeling is not necessary to sustain conviction when court is satisfied that appellants are assailants of the victim, but once motive was setup it was to be proved by the prosecution beyond doubt and failure to furnish cogent and reliable evidence could lead to adverse inference against prosecution (PLD 2000 Kar 128). Absence of motive is not ground for acquittal (PLD 1999 Lah 56). Particularly when ocular evidence is reliable and corroborated by medical evidence (AIR 2003 SC 3975). Appellate Division repeated the same view { 57 DLR(AD)(2005)75).
9. 53.       When offence proved motive is immaterial. Weakness of the motive alleged, though a circumstances to be taken into account, cannot be a ground for rejecting the direct testimony of ocular witness which is otherwise of a reliable character. If the offence has been satisfactory proved by direct evidence than it is immaterial as to whether the motive has been established or not (1968 P Cr. LJ 1251). 7 MLR(2002)119. If there is no sufficient direct evidence motive may be matter for consideration specially when the case is based on circumstantial evidence (51 DLR 103).
10. 54.       Motive is a matter of speculation for what moves a person to take the life of another is within his special knowledge and does not constitute a necessary ingredient of the offence of murder,(1968 Cr.LJ 962).
11. 55.       In the case of Noor Md. Vs. State 1999 MLD (Pakistan Monthly Law Digest) -60 held:

 “Eye witnesses were natural witnesses of the occurrence who had not only furnished convincing account of incident in details,  but had also withstood hard test of cross-examination successf-ully- No rancour had been ascribed to appellant-Relationship of eye witnesses with the deceased was not by itself sufficient to discredit their testimony – Record did not indicate any sign to support the idea of substitution of accused with real culprit, if any- ocular account was fully supported by medical evidence and attending circumstances-conviction of accused was upheld in circumstances.

In the case of Md. Azeem Vs. State 1998 Pakistan Criminal Law Journal-175 held:

Eye–witnesses who had no ill-will or motive against the accused had plausibly explained their presence at the spot and had corroborated their version given in their statements before the police-Ocular testimony was not in conflict with medical evidence- Prosecution had, thus, proved its case against accused beyond doubt- Conviction and sentence of death awar-ded to accused by trial Court were confirmed in circumstances

1. 56.       Therefore, we find that the prosecution successfully proved the charges against the condemned prisoner Nowsa beyond all reasonable doubt.
2. 57.       After appraisal of the evidence on record we failed to discover any incriminating act of attempt to commit murder of wounded victim Kasem by accused Nannu and Hazrat Ali. PW-2 stated that accused Shamsu (since dead) and accused Ishak (since deceased) caught hold of his son Kasem and P.W. 3 Abul Kasem did not state any incrimin-ating evidence against the appellants in respect of attempt to commit him murder and other PWs merely heard the occurrence from PWs. 2 and 3. Therefore, we hold that there is absolutely no evidence against those appellants in respect of charge under Sections 307, 34 of the Penal Code. So their conviction and sentence cannot be sustained.
3. 58.       In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the prosecution successfully proved the charges against the condemned prisoner beyond all reasonable doubt.
4. 59.       As to the sentence the learned Advocate for the condemned prisoner submits that there was no premeditation for murder so the sentence of death should be commuted. Regards being had to the facts and circumstances of the case we are of the view that sentence of imprisonment for life will meet the ends of justice instead of death.

In the result:-

(A)           Death reference no. 31 of 2006 is rejected. The impugned Judgment and order of conviction and sentence dated 12-04-2006 passed by learned Additional Sessions Judge, fourth Court, in-charge, Dhaka, in Session Case no. 72 of 1999 so far as it relates to condemned prisoner Nowsa is maintained with a modification of sentence to imprison-ment for life instead of death under Section 302 of the Penal Code and conviction and sentence under Sections 307, 34 of the Penal Code is also maintained, both the sentences shall run concurrently.

B)   The impugned judgment and order of conviction and sentence so far as it relates to the appellants Nannu and Hazrat Ali is set aside and they are acquitted from the charge and discha-rged from their respective bail  bond.

C)   Accordingly the Criminal appeal no. 2083 of 2006 is allowed.

The Office is directed to send down the records at once.

Ed.