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Petitioner: AHMAD KHAN And 2 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Fakhruddin H. Shaikh Title: AHMAD KHAN And 2 Others vs THE STATE Case No.: Criminal Appeals Nos.161 of 1981 and 11 of 1982 Date of Judgment:1982-05-06 Reported As: 1991 P Cr. L J 301 Result: Appeal partly allowed
JUDGMENT
JUDGMENT AJMAL MIAN, J.---The appellants, namely, Ahmed Khan son of Rasool Bakhsh Dahar, aged 65 years, Nusrat Hussain son of Ahmed Khan Dahar, aged 24 years and Amjad Hussain son of Ahmed Khan Dahar, aged 21 years have filed present appeal against the convictions and sentences awarded by the learned Sessions Judge, Larkana, through his judgment, dated 24-8-1981 for murdering Abdul Ghani son of Haji Misri Khan Dahar, in Shahi Bazar Badah Town. Appellant No.1 is the father, whereas appellants Nos.2 and 3 are the sons of appellant No.1. Appellant No.3 has been convicted under section 302, P.P.C. And has been sentenced to death. He has also been ordered to pay a fine of Rs.2,000 or in default of payment of fine to suffer further R.I. For 6 months, whereas appellants Nos.1 and 2 have been convicted under section 302 read with section 34, P.P.C. And have been sentenced to life imprisonment each and also to pay a fine of Rs.2,000 each and in default of payment of fine further R.I. For 6 months each. It has also been ordered that in case of recovery of the aforesaid fines imposed against the appellants, the same should be paid as compensation under section 544-A, Cr.P.C. To the heirs of deceased Abdul Ghani son of Haji Misri Khan Dahar. The learned Sessions Judge has also made a reference to this Court for the confirmation of the death sentence awarded to appellant No.3. 2. The relevant facts, leading to the filing of the above appeal are that P.W.3 Muhammad Ismail son of Haji Misri Khan Dahar lodged a complaint on 15-2-1980 at 16-30 hours at the Police Post Badah situated 2 furlongs from the place of Vardat against the present appellants under section 302/34, P.P.C. And 13-D, Arms Ordinance. It was alleged that about a month back the complainant had got his brother Abdul Ghani betrothed with the daughter of Serai Muhammad Khan Dahar resident of Badah, on which Serai Ahmed Khan Dahar resident of Bothro, Taluka Mehar, brother of Serai
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Muhammad Khan got annoyed. 1t was further alleged that Ahmed Khan Dahar was asking the complainant party that if they would take the hand of his niece, he would see to them and would get them murdered. It was also stated that 3 days back the complainant got the girl made to sit betrothed to his brother in `Vanvah' for marriage purpose. It was further stated that today at 3 p.m. The complainant, his brother Abdul Ghani and Muhammad Khan son. Of Gulab Khan went to Serai Muhammad Khan for settlement of marriage talks and after consultation with Muhammad Khan, they all four went to Badah Town for inviting their friends for marriage. It was further stated that when they reached Shahi Road in Badah Town near the shop of Ibrahim Muhajir, one jeep came and stopped. It was also stated that Serai Ahmed Khan son of Rasool Bux Khan Dahar and his sons Amjad and Nusrat were sitting in it. Serai Ahmed Khan was armed with a double barrel gun, whereas Amjad and Nusrat were armed with pistols. It was further averred that suddenly Amjad got down from the jeep and gave Hakal and fired his pistol from behind at the complainant's brother Abdul Ghani, who fell down due to pistol shot. It was also alleged that Serai Ahmed Khan fired in the air with a gun and Nusrat fired his pistol in the air and gave Hakal not to come near them otherwise they would murder the complainant party. It was also stated that due to fear the complainant party did not go near them. It was further stated that Amjad got into the jeep, but while he was getting into the jeep, his pistol and one live cartridge fell down and thereafter, all the 3 accused went away in jeep towards southern side. It was also stated that thereafter the complainant saw that Abdul Ghani had pistol shot injury on his back, which was bleeding and because of that he had expired. It was further stated the complainant made Serai Muhammad Khan son of Rasool Bux and Muhammad Khan son of Gulab Khan Dahar to sit over the dead body and he himself came to lodge the report. It was also stated that pistol and live cartridge were lying at the place of Vardat and that the accused had murdered complainant's brother Abdul Ghani because Serai Ahmed Khan and his sons Amjad and Nusrat were annoyed over this brothel. The above report was recorded by P.W.5, A.S.I.P. Police Post Sajjad Hussain in the Roznamcha. After that he forwarded true copies of the Roznamcha to the S.H.O. Dokri through Constable Raza Muhammad for registering the crime F.I.R. And for compliance under section 157, Cr.P.C. It seems that the above report was incorporated under section 154, Cr.P.C. Exh.28. The prosecution case rests entirely on three alleged eye-witnesses, namely, P.W.3. Muhammad Ismail the complainant and brother of the deceased, P.W.4, Muhammad Khan son of Rasool Bux Khan (brother of accused Ahmed Khan) and P.W.6, Muhammad Khan son of Gulab Khan. In addition to the above eye-witnesses, the prosecution has also examined P.W.1 Manzoor Hussain (who had carried the dead body for post-mortem to P.W.7 Dr. Khan Muhammad) P.W.2, Abdul Ghafoor, one of the Mashirs, to the place of Vardat and inquest report Exhs.11 and 12 respectively, P.W.5 Sajjad Hussain A.S.I., who recorded the report in the Roznamcha at the Police Post Badah, P.W.7 Dr. Khan Muhammad, who carried out the post-mortem and prepared post-mortem report Exh.20, P.W.8 Khan Muhammad the second Mashir to the aforesaid Mashirnama of the place of Vardat and inquest report, P.W.9 Dhani Bux Tapedar, who prepared the sketch of the place of Vardat Exh.28 and P.W.10 Haq Nawaz, the S.H.O., who took over the investigation from A.S.I. P.W.5 Sajjad Hussain and completed the investigation and submitted the challan. It may be observed that Ali Mardan, Head Constable incharge of Malkhana of Dokri Police was examined as a Court -- witness in order to ascertain whether the two invitation cards of the marriage allegedly recovered from the place of Vardat were received by him with the case property. The prosecution has also produced aforesaid Mashirnama of Vardat, Exh.11, aforesaid inquest report Exh.12, entry of Roznamcha Exh.15, aforesaid post-mortem report Exh.20, case property list Exh.24, Mashirnama of arrest and personal search of all accused Exh.29, Chemical report Exh.30, Ballistic report Exh.31, which is of no help being neutral. All the accused pleaded not guilty.
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3:It may be pertinent to refer to the testimony of the above witnesses. (a) P.W.3 Muhammad Ismail has reiterated the facts stated by him in the report Exh.15 and reflected in the F.I.R. Exh.28. In his cross--examination, he has stated that betrothal ceremony of his brother had taken place about a month before his murder and since then the accused continued to issue threats to them. He has further stated that Serai Ahmed Khan personally on 2 or 3 occasions had issued threats to him by telling him that they should not get the girl or else his brother would be murdered. He has also stated that the accused were also sending him threats through others, who were known to him. He has further stated that Serai Ahmed Khan had sent threat to him through Gulab and Umar Mirbahar. He has further deposed that their house was situated near the house of the accused, which was surrounded by the hedges, whereas the house of the accused was surrounded by walls. He has admitted that P.W. Muhammad Khan son of Gulab Khan was related to his brother Muhammad Hussain through 3 matrimonial alliances mentioned by him. He has also stated that deceased Abdul Ghani used to reside with him, whom he had maintained and educated till he joined the service of the K.D.A. In Karachi. He has also deposed that the deceased had come to him for marriage purpose in the morning of the day of incident. (b) P.W.4 Muhammad Khan aged 68 years elder real brother of accused Ahmed `Khan has corroborated on all material facts the testimony of P.W.3 Muhammad Ismail. He has deposed that `Vanvah ceremony' was performed 3 days before the incident and the name of his daughter, who was betrothed to Abdul Ghani was Miss Tasneem. He has further deposed that on 15-2-1980 before the incident, complainant Muhammad Ismail, his brother Abdul Ghani and P.W. Muhammad Khan son of Gulab Khan had come to see him and they told him that they had to invite friends and relations to the marriage party, and therefore, he should accompany them for this purpose. Thereupon, he accompanied the complainant, Abdul Ghani and P.W. Muhammad Khan son of Gulab Khan and sent to Badah Town. He has also deposed that when they reached in the Bazar near the shop of one Punjabi (whose name he did not remember), one jeep came behind and stopped near them. He found his brother Ahmed Khan and his sons Nusrat and Amjad were sitting in the jeep. Accused Ahmed Khan had double barrel gun in his hand, whereas accused Nusrat and Amjad had pistols in their hands. After that Amjad got down from the jeep and challenged and fired the pistol at Abdul Ghani, who was hit on his back and thereupon lie fell down. He has further deposed that accused Ahmed Khan and Nusrat- fired from their fire-arms in the air and accused Amja4 Khan challenged them and remarked that whosoever-.'would come near them, he would be murdered. He goes on to state that thereafter accused Amjad Khan got into the jeep and while doing so, Amjad's pistol and one live cartridge fell on the ground near the jeep. He has also stated that he had promised to give his daughter in marriage to deceased Abdul Ghani, on this his brother accused Ahmed Khan, and his sons got annoyed and because of that they had committed the murder of Abdul Ghani. He has further deposed that the accused told him before the incident that if he would give his daughter to Abdul Ghani, they would commit his murder. He has further deposed that because of the above threats he and P.W.3 Muhammad Ismail shifted to Badah from their village Bothro, where the accused were still residing. (c) P.W. Muhammad Khan son of Gulab Khan refused to give statement about the incident before the learned Sessions Judge on the ground that he was under fear. However, when on 12-4-1981, he was ordered to be remanded to the judicial custody and to be sent to District Jail for 7 days on the condition that he could be released on his furnishing solvent surety in the sum of Rs.1,000 and P.R. Bond in the like amount for his appearing before the Court for evidence on 19-4-1981, he showed his willingness to give evidence on the same day, when the above order was passed i.e. On 12-4-1981. He has deposed that about 14 or 15 months ago in the evening after offering Juma prayers in old Badah Town, he, Abdul Ghani and Muhammad Ismail went to Muhammad Khan son of Rasool Bux, who is brother of accused Ahmad Khan. He has further deposed that Abdul Ghani and
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complainant Muhammad Ismail had to consult Serai Muhammad Khan and they had to distribute the invitation cards. He has also deposed that they had consultation with P.W. Serai Muhammad Khan and after half an hour they all including Serai Muhammad Khan came out from the Otaq. He has further deposed that he was going ahead of them while Muhammad Ismail, Abdul Ghani and Muhammad Khan came after him, and when they covered 50 or 60 paces distance from the Otaq of Muhammad Khan on foot, he heard pistol shot report and thereupon, due to fear he ran away, but after a short while he came back to the Vardat and found Abdul Ghani was lying murdered. He has also stated that he did not see any of the culprits because by the time he had returned they had disappeared. He has further deposed that he found one country-made pistol lying at 3 paces distance from dead body of Abdul Ghani, who had pistol shot injuries and from whose body the blood was oozing out. He has also deposed that he found Muhammad Ismail and Muhammad Khan available at the vardat he came back. It may be observed that in reply to a question put by D.P.P. Namely `what names were given to you by Muhammad Khan and Muhammad Ismail", the above witness has deposed that Muhammad Khan and Muhammad Ismail had given names of accused Ahmed Khan, Nusrat Hussain and Amjad Hussain and that they further told him that Amjad had fired pistol at Abdul Ghani. The above reply to the above question was recorded subject to the objection of the learned counsel for the accused on the ground that no such question was put to P.Ws. Muhammad Ismail and Muhammad Khan son of Rasool Bux Khan. In his cross-examination he has stated that Muhammad Hussain a brother of complainant Muhammad Ismail was married to Mst. Rahmat a real sister of his were Mst. Alam Khatoon, both daughters of Allah Warayo. He has further stated that Mst. Hameedan, his niece and daughter of his brother Muhammad Uris was married to Ghulam Hyder son of Muhammad Hussain brother of the complainant. He has also stated that Mst. Sharifan daughter of Muhammad Hassan was married to Nizamuddin, son of his brother Muhammad Uris. He has further stated that he knew Ghulam Hussain son of Achar Lashari, who was servant of accused Ahmed Khan, who had filed a false case against him for the abduction of Mst. Zainab and that he and his son Qamaruddin were accused in that case but they were acquitted in that case. (d) P.W.2 Abdul Ghafoor, one of the Mashirs to Mashirnamas of Vardat Exh. II and inquest report Exh.12 did not support the prosecution case before the learned Sessions Judge. He has deposed that about 12 months back he was made Mashir with co-Mashir Khan Muhammad. He has further deposed that police did not see the place of Vardat in his presence as he was lying ill, on that day. He goes on to state that at about sunset time a police constable came and took him to the Badah Police Post, where the police obtained his signatures on blank papers. He has denied the contents of the Mashirnama of the place of Vardat. He was declared as hostile by the D.P.P. And was cross- examined. However, he adhered to his statement made by him in his examination-in-chief. He was also cross-examined by the defence counsel and in reply to that he has stated that his shop is situated in Shahi Bazar and that he has seen the shop of Ibrahim Muhajir. He has also stated that near the shop of Ibrahim Muhajir there are shops of Hafiz Ibrahim, Lachmandas, Rabrakhio Kolachi, Allahwarayo Noonari, Abdul Rahim, Ishaque Nbhar and Ramzan Khokhar. He has further stated that near the shop of Ibrahim Muhajir, there are hotels of Abdul Khaliq Pathan, Muhammad Khan and Muhammad Ramzan Chano. He has also stated that his shop was about, 100 paces away from the shop of Ibrahim Muhajir. (e) The second Mashir to the Mashirnama of Vardat and inquest report, namely, P.W.8 Khan Muhammad has deposed that about 12/13 months ago the police had made him Mashir of Vardat in the case with co---Mashir Abdul Ghafoor. He has further deposed that the Vardat was near the shop of Ibrahim Muhajir in Badah Town, where the dead body of Abdul Ghani was lying, had injuries of pistol shots. He has further deposed that there was also blood at the place of Vardat, which was secured by the police and sealed. He has also deposed that one pistol country-made was lying at
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a distance of about 30 paces away from the dead body, which contained empty cartridge in its barrel which was secured. He has further deposed that the pistol and the empty cartridge were secured by the police. He has also deposed that some papers were lying at the place of Vardat but he was not in a position to say, what were those papers but the police had secured the same. He has further deposed that the police had prepared the Mashirnama, which was read over to them and they signed thereafter. He has produced Mashirnama as Exh.11 and inquest report Exh.12. It may be observed that he was not cross examined by the defence counsel. (f) P.W.7 Dr. Khan Muhammad has deposed that on 15-8-1980 he was working as the Medical Officer at Rural Health Centre, Badah, when the police sent to him the dead body of deceased Abdul Ghani son of Haji Dakar for post-mortem examination through Police Constable P.W.1 Manzoor Hussain of the Police Post Badah, which was identified to him by Abdul Latif son of Ali Sher and Muhammad Ismail son of Haji Misri, close relatives of the deceased. He has further deposed that the dead body was of a male, Muslim, aged about 26 and that it was of an ordinary built with rigor mortis not present nor lividity was present. He has also deposed that he started post-mortem on the same day at 5-15 p.m. And finished it at 7-15 p.m. On external examination, he found the following injuries on the dead body: (1) `Eight entrance wounds on the left below injuries angle of the scapula with charring of margins 5 m.m. x 5 m.m. Each'." On internal examination of the dead body, he found the following damages: "(1) 8th and 9th ribs were fractured. Both the lungs were perforated alongwith their pleura- pericardium and heart were perforated. (2) There was semi-digested food material in the stomach." He opined that the death was due to shock and haemorrhage consequent upon above fire-arm injuries, which appeared to have been caused by discharge of fire--arm such as gun or country- made pistol and that all the injuries were ante---mortem and were collectively sufficient to cause death of this deceased. He has further stated that six pellets were recovered from the dead body, which were lying with him. He also opined that the death was instantaneous and the probable time between death and post-mortem was about 2-1/2 hours. In his cross--examination, he has stated that he found semi-digested food in the stomach of the deceased and that probable time between the time of taking last meals by the deceased and his death would be about 2-1/2 hours. (g) P.W.5 A.S.I. Sajid Hussain has deposed that on 15-2-1980, he was working as A.S.I.P. Badah Police Post when at 4-30 p.m. Complainant Muhammad Ismail came to the police post and lodged the report with him which he recorded in the daily diary at entry No.8 and read over the same to the complainant and obtained his signature, which is Exh.15. He has further deposed that he sent the copy of the report to S.H.O. Dokri Police Station for registration of the police crime through Police Constable Raza Muhammad and then went with the complainant to the scene of offence, which was in the Bazar in Badah Town, in front of the shop of Muhammad Ibrahim Muhajir, which was pointed out to him by the complainant. He has also deposed that he saw the same in presence of Mashirs Abdul Ghafoor and Khan Muhammad, where the dead body of Abdul Ghani was lying at the Vardat, which had fire-arm injuries and from which the blood was coming out. He has further deposed that there was also blood-stained earth, which he secured and sealed it in a parcel. He further found a pistol with empty cartridge lying in its barrel, which he also secured and scaled it in parcel. He also secured a live cartridge from the Vardat and 2 invitation cards. He has also stated that he prepared the Mashirnama, read over to the Mashirs and obtained their signature, Exh.11. He has further deposed that he held inquest report in presence of the same Mashirs and prepared the same Exh.12. He has also stated that he sent the dead body for post-mortem examination through Police Constable Manzoor Hussain and thereafter, S.H:O. Haq Nawaz Khan of Dokri Police Station arrived. Thereupon, he gave the case papers to him for further investigation. He has also deposed
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that the property, namely, country-made pistol, cartridge, earth and live cartridge in Court are the same. He was recalled and reaffirmed on the following date of hearing in order to enable him to produce the two invitation cards. On the following date of hearing, he deposed that he had also recovered the invitation cards from the Vardat, which he had given to S.H.O. Mr. Haq Nawaz of Dokri Police Station. In his cross-examination he has stated that the cards were not available in the Court and that when he went to the place of Vardat, he found some shops were open and some were closed. He has denied the suggestion that he had not recovered the two invitation cards from the place of Vardat. (h) The P.W.10 Haq Nawaz has deposed that on 15-2-1980, he was working as the S.H.O. Dokri Police Station when he received a copy of F.I.R. Fled by complainant Muhammad Ismail Police Post Badah through Police Constable Raza, which he registered in 154, Cr.P.C. Book, which is produced as Exh.28. He has further deposed that thereafter he went to the place of Vardat and found A.S.I.P. Sajjad Hussain investigating the case, from whom he received the case papers, which he verified. He has also deposed that he had recorded the statements of Muhammad Khan son of Rasool Bux and Muhammad Khan son of Gulab. He had also examined shopkeepers Hafiz Ibrahim, Rab Rakhio, Allah Warayo, Abdul Rahim, Muhammad Ramzan, Muhammad and Lachmandas on 16-2-1980 and on 22-2-1980. He arrested accused Ahmed Khan, Nusrat Hussain and Amjad Hussain in presence of Mashirs Abdul Rasool and Ali Gohar and prepared Mashirnama of arrest Exh.29. He has further deposed that all these accused had appeared before him at Dokri Police Station. He has also deposed that on 8-3-1980, he challaned the case before the Extra-Joint, C.J. And F.C.N., Larkana. He sent blood-stained earth secured from the place' of Vardat to the Chemical Analyser for analysis of which he received report in positive Exh.30. He also sent the empty cartridge and country-made pistol in sealed parcels which were secured from the place of Vardat to the Forensic Laboratory for examination and report and in respect of which he produced ballistic report Exh.31. He has also deposed that A.S.I.P. Sajjad Hussain had given him 2 invitation cards, which were secured from the place of Vardat which he alongwith other property sent to W.H.C. Of Dokri Police Station. In his cross-examination he has stated that invitation cards were not available in the Court on the date of recording of his statement. (i) Ali Mardan son of Ghulam Nabi was examined as a Court-witness Exh.23. He has deposed that he was working as W.H.C. At Dokri Police Station since 4-3-1979 and that he maintained Register No.19 in respect of the case property received from the Investigating Officer. He has further deposed that he has brought Register No.19 with him and that he had seen the case property of the case, which he entered in Register No.19 as case property in Police Crime No.5 of 1980 of Dokri Police Station at Entry No.1. He has further deposed that he had received one country-made pistol, one empty cartridge, one live cartridge and a sealed parcel containing blood-stained earth and that empty cartridge was also in the sealed parcel and so also the pistol. He has produced the entry in the register as Exh.24. He goes on to state that empty cartridge and country-made pistol duly sealed were sent to Forensic Laboratory for examination while the live cartridge has been sent to Court of Session under certificate 135. He had also stated that he had not received two invitation cards with envelopes as case property of this case, and that had he received those invitation cards, he would have mentioned the same in Register No.19. In his cross-examination, he has stated that in the Malkhana only such properties are kept which are entered firstly in the Register No.19 and that in the Malkhana no property is lying which is not entered in Register No.19. He has also stated that no property has been lost or misplaced and that whatever property is mentioned in Register No.19 has been traced out in the Malkhana. (j) It may be pertinent to refer to the Mashirnama of Vardat as it has assumed some importance on account of the submissions made by the learned counsel for the parties. Mashirnama of Vardat Exh.11 indicates that the Vardat was situated in Shahi Bazar in Badah Town near the shop of Ibrahim
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Muhajir, where the dead body of deceased Abdul Ghani son of Haji Misro Dahro was lying straight on a piece of gun bag head towards north, feet towards south. The deceased had silken shirt of Boski colour on his person having 8 holes on back, side. The shirt was blood--stained. The deceased was also wearing a white Banyan, which had 8 holes on back, side and was also stained with blood. The deceased had also one handkerchief on his back with white and red lines which was stained with blood. The deceased's white trouser was also stained with blood. One country- made pistol with wooden butt was lying at a distance of 3 paces from the dead body. The butt of pistol was engraved. It was open and it was found that it contained No. .12…
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