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Petitioner: ALI NAWAZ AND Another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Safdar Shah Title: ALI NAWAZ AND Another vs THE STATE Case No.: Criminal Appeal No. 382 and Confirmation Case No. 5 of 1968 Date of Judgment:1970-06-19 Reported As: 1971 P Cr. L J 860 Result: Appeal allowed
JUDGMENT
JUDGMENT GHULAM SAFDAR J. This appeal is directed against the judgment of learned Session Judge, Larkana dated 24-8-1968 by which, the to accused, namely, Ali Nawaz son of Din Muhammad Barijo aged 35 years and Khan Muhammad son of' Sultan Barijo aged 30 years have been convicted for an offence under section 302/34, P. P. C. For the murder of Nihal son of Mehar Khan aged 35 years and both of them sentenced to death. They have also been convicted for an offence under section 13-D of the Arms Act and each of them sentenced to to years' R. I. The case is also before us by way of reference under section 374, Cr. P. C. And by this judgment the appeal and reference both would be disposed of together. 2. Shortly stated the prosecution case is that at about mid--night of 5-4-1967 the to accused, with common intention, murdered Nihal son of Mehar Khan as a result of gun fire in village Hussainabad Taluka Wara, District Larkana. The F. I. R. Of the incident was lodged at Wara Police Station, which is three miles away from the place of occurrence, by Muhammad-YaqoobP. W. 4 at 3-30 a.m. On 6- 4-1967. It was recorded by S. H. O. Imam Din P. W. 9 and reads as follows :- "The complaint of the complainant is that I and my cousin and nephew deceased Nihal son of Mehar Khan Chuto all reside near adjoining houses 6-7 houses of Achar and other Barijo are adjacent to our houses in the East. We have visiting terms along with our families on marriage or death occasions. Last night there was marriage in Amir Bux Barijo's house. To help Amir Bux Gullan and deceased Nihal went-to his house after taking night meals. I was sleeping in my house, At midnight I woke up on gun reports coming from the house. Where the marriage was to take place. I, my brother Mooso and Abdul Karim Chhuto came out. We went running towards the direction from where we had heard gun reports. As we entered the fence of entrance we saw the lamp
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burning. We saw that Ali Nawaz son of Din Muhammad 2. Khan Muhammad son of Sultan Barijos and guns. They told us that they declared Mst. Hidayat wife of Achar Barijo "Kari" with the deceased Nihal and that on that account they had fired the guns. At that the Gullan was sitting over deceased. The accused asked us to take away Nihal from tyre. On saying this they went away to their houses. We saw that Nihal was still alive. He had gunshot injuries on his back and was bleed-- ing. Nihal informed us that the accused had caused him gun--shot injuries without any fault. Saying these words, Nihal died. Gullan informed that Nihal had gone out to ease himself and that as he came back a short while after there, Ali Nawaz and Khan Muhammad both armed with guns came inside the house and challenged Nihal and told him that he was "Karo" with Mst. Hidayat and he could not run. As Nihal started running, Ali Nawaz and Khan Muhammad fired the guns at his back which struck him and he fell down. He said the accused also threatened him not to come near else he would be killed. Due to fear and without any arm, he was only look--ing. I then left others on the dead body and have come for report. Mst. Hidayat is wife of Achar Barijo. Accused Ali Nawaz and Khan Muhammad are the sons of Achar's sister. Mst. Hidayat is aged about 30 or 35 years. I am complainant. Investigation be done." 3. The motive for which the accused are alleged to have com--mitted the crime is that they suspected deceased Nihal to be on illicit terms with Mst. Hidayat, the wife of one Achar, who is related to accused Ali Nawaz as maternal uncle. 4. The death of Nihal is not denied. In any case this fac3--is sufficiently established from the evidence of Dr. N. A. Mooed (Exh. 31) Medical Officer, Kambar who had performed the autopsy on the dead body of Nihal. He stated in his evidence that at about 2 p.m. On 6-4-1967, the dead body of Nihal was brought to him under the supervision of Foot Constable Ali Nawaz and before he commenced the post-mortem examination" it was identified to him by P. W. Yaqoob, the uncle of the deceased. 5. In support of its case the, prosecution relies upon the dying declaration of the deceased, the extra-judicial confession of the to accused, the ocular and circumstantial evidence. The ocular evidence is that of only one witness namely Gullan P. W. 3, who is the maternal uncle of the deceased. The F. I. R. Of the incident mentions that when complainant Yaqoob reached the wardat he found P. W. Gullan present near the dead body. The F. I. R. Also mentions that it was Gullan who had informed complainant Yaqoob about the details of the occurrence. In this view, we would first like to consider the evidence of P. W. Gullan and then advert to the evidence of the three corroborating witnesses and the other circumstantial evidence on record. 6. In his evidence before the trial Court P. W. Gullan stated that on the night of incident he and deceased Nihal had gone to the house of one Amir Bakhsh, a relative of the accused, to help him arrange the feast of his marriage. At mid-night deceased Nihal went to the nearby jungle to answer the call of nature and after a short while the to accused came to the house of Amir Bukhsh Barijo aimed with guns. Later when deceased Nihal returned from the jungle the to accused challenged him that he is going to be killed as he was on illicit terms with Mst. Hidayat, the wife of Achar. The deceased denied this allegation and started running along the street when both the accused shot him from the back as a result of which he fell down in the entrance of the house of Amir Bakhsh. On hearing the gun reports P. Ws. Mosu, Abdul Karim and Yaqoob arrived at the wardat and they also saw the to accused present in the house of Amir Bakhsh armed with guns. Deceased Nihal who was still in his senses informed these witnesses that he had been shot by the to accused on the false accusation that he was on illicit terms with Mst. Hidayat. The accused then told these witnesses to remove Nihal from that place but they refused. In the meantime P. W. Alam also arrived at the wardat with a torch in his hand and while all the P. Ws. Were present the to accused, along with the three acquitted accused namely Taj Muhammad, Haji and Yar Muhammad, returned to the wardat and started taking away the dead body of Nihal who by then
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had expired. They succeeded in removing the dead body to a place about 5-6 paces outside the entrance of the comp and when all, the P. Ws. Raised cries and prevented them from taking the dead body away. At this the accused left the dead body and decamped. The P. Ws. Then removed the dead body to the same place where Nihal was shot down and thereafter P. W. Yaqoob proceeded to the Police Station to lodge the F. I. R. Of the incident. 7. It will have been noted that the version of the F. I. R. Differs from the evidence of P. W. Gullan in one material respect which is this that the F. I. R. Is wholly silent as to the incident of the dead body having been dragged by .The accused to a place outside the entrance of the common compound., This version appears to have been introduced by the P. W. During the investigation of the crime and it was upon this basis that the to accused, along with co-accused Taj Muhammad, Haji and Yar Muhammad, were further charged for an offence under section 201/34, P. P. C. For having attempted to remove the dead body of Nihal from the place of incident in order to cause the evidence of his murder to disappear. The learned Sessions Judge, however, disbelieved this version of the P. Ws. And consequently acquitted the to accused and their alleged accomplices of the charge under section 201/34, P. P. C. The grievance of the accused is that once the P. Ws. Were disbelieved in regard to the prosecution case under section 201/34, P. P. C., there was no justification for the learned Sessions Judge to have believed them in support of the charge under section 302/34, P. P. C. And section 13-D of the Arms Act. In order to see if the learned Sessions Judge has properly appraised the evidence on record we would first like to refer to the sketch of wardat (Exh. 9). 8. The sketch of wardat (Exh. 9) was prepared by Tepedar Ali Gohar P. W. 2 at the pointing out of complainant Yaqoob and the Police. His evidence before the trial Court was that the sketch of wardat was prepared by him in his own hand after he took the measurements with a tape and further that all the directions and the various features shown therein were correct. The sketch in question indicates that the dead body of Nihal was found at point `A' which is 143 feet away from the house of Amir Bakhsh where the incident is alleged to have taken place. Adjacent to the house of Amir Bakhsh, separated by a cattle shed is the house of accused Ali Nawaz which is 116 feet away from point to. To the north of the house of Ali Nawaz is the house of Mst. Hidayat and both these houses are separated by an intervening open space. From the house of Mst. Hidayat point 'A' is situated in the south-easternly direction at a distance of 100 feet. The house of deceased Nihal is shown to be 792 feet away from point `A' in the north-westerrily direction beyond the common compound. The houses of P. Ws. Mosu and Yaqoob are adjacent to the house of deceased Nihal while the house of P. W. Abdul Karim is to the south of these houses and is 750 feet away from point `A': The house of P. W. Gullan is shown at point `K' which is to the south of the house of Amir Bukhsh and is said to be 519 feet away from point `A'. In answer to a pointed question P. W. Ali Gohar stated in cross-examination that point `A'. Would be visible to the witnesses only if they were to come to the corner of the cattle shed of accused Ali Nawaz. 9. The admitted position which thus emerges is that the dead body of Nihal was found at point `A' which is at a distance of 143 feet away from the house of Amir Bakhsh. Additionally point `A' is said to be the only entrance to the common compound from the eastern side and according to P. W. Ali Gohar it would be visible to the Witnesses present in the house of Amir Bakhsh only if 'they were to come to the corner of the cattle shed of accused Ali Nawaz. It is in this background that the evidence of P. W. Gullan will have to be scrutinized and in order to be able to do so we would like to reproduce the relevant passages from his cross-examination which are as follows :- "My house is about 20 paces from the wardat. It is to the south of the enclosure of accused's house. Amirbux's marriage was fixed on that night. He is the nephew of the accused. We were working in the courtyard of Amirbux's house. We were on visiting terms with the accused, and used to visit
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other's houses. All the five accused were also working in Amirbux's courtyard with us. There were 10 'to 20 persons working in Amirbux's house. The deceased went to the jungle from the eastern entrance. The deceased had actually come to the court--yard of Amirbux's house when accused Khan Muhammad and Ali Nawaz challenged him. He ran back towards the entrance when the accused fired at him from behind. The entrance was at 20 paces from the place where I was standing in Amirbux-'s courtyard. The accused were at 4 or 5 paces from me when they brought the guns. I did not ask them why had they brought the guns at that hour of the night. No one else also made enquiries from them. I did not suspect them that they would kill Nihal. The accused fired at Nihal from 4 or 5 paces. I was in the courtyard of Amirbux's house when the firing took place. The accused were 5 or 6 paces away from me. I had not followed the accused. All the persons working in Amirbux's house saw the incident. The accused were standing in the courtyard of Amirbux's house when they fired at the deceased. Both the accused fired at the deceased. It is not a fact that the deceased fell down outside the hedge. . The accused did not reload their gun. I had seen to empties at one or to paces from the dead body. The complainant and other witnesses had also seen those empties. Except I and the above witnesses no one else came at the wardat as they were related to the accused. 'Our village consists of 20 houses. There was one house of Brohi and to or three houses of Chandias. They came at the wardat in the morning and not at night the. Roshanali's otak was at 30 paces from the wardat. His Munshi Muhammad Bux and some other persons reside there. The deceased collapsed after telling us that Khan Muhammad and Ali Nawaz had fired at him after making false accusation of Mst. Hidayat against him. Yaqoob went for report about half an hour after the incident. All the five, accused came at the wardat and took up the dead body about 10 minutes after Nihal expired. I would not be able to say which of the accused held the body from the head side and which of them held it from feet side. It is not a fact that accused Ali Nawaz and Khan Muhammad had followed the deceased from the jungle. I did not say so to the complainant." 10. By examining the evidence of P. W. Gullan as a whole, keeping in view the version of the F. I. R., certain material discrepancies stare us in the face which appear to have escaped the notice of the learned Sessions Judge. In his examination-in. Chief P. W., Gullan clearly stated that at about mid- night deceased Nihal went to the nearby jungle to answer the call of nature and after a short while the to accused came to the house of Amir Bakhsh armed with guns. However in cross-examination he stated that all the five accused were working with him in the house of Amir Bukhsh assisting the latter to prepare the feast of his marriage. He further stated that after about 10 minutes of the death of Nihal the five, accused returned to the wardat and attempted -to carry away the dead body. Not only this but he made no mention of the presence of the other three acquitted co- accused around the wardat at the the of incident. From this it is clear that the examination-in-chief of the witness is inconsis--tent with his cross-examination and the question arises as to which version should be believed. After having anxiously con--sidered this aspect of the case we are of the view that the three acquitted co-accused were no where around the wardat at the the of occurrence and that their names were later introduced as a matter of deliberate design to which we would presently advert. This conclusion finds support from the fact that the F. I. R. Of the incident is wholly silent as to the names of the three acquitted co-accused and further that it does not even mention that after deceased Nihal expired all the five accused returned to the wardat to take away his dead body. 11. Now the admitted position is that the night of incident was dark and the dead body of Nihal was found at point `A' (of Exh. 9) which happens to be the only entrance of the common compound from the easternly direction. The case of the prosecu--tion is that deceased Nihal had gone out to the nearby jungle and returned through the same entrance and that no sooner he reached the courtyard of the house of Amir Bukhsh the to accused challenged him at which he started running
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along the street when they shot him from the back from a distance of 4-5 paces. This version of P. W. Gullan, who is the only witness of occurrence, does not find support from the medical evidence nor from the evidence of Investigating Officer Imamdin (P. W. 9). The evidence of Dr. M. A. Moeed (Exh. 31) who had performed the autopsy of the dead body of Nihal on 6-4-1967, is to the following effect :- (1) Three penetrating wounds --" x --" with charred margins on posterio lateral aspect of right lower leg in the middle as entry wound with three lacerated wounds -- diameter on the posterior lateral aspect of same leg in the middle with fracture of the fabula bone. (2) One pellet entry wound --" x --" with charred margins one inch above the right lateral malleobus as entry wound with a lacerated wound --" diameter mediary at the same level. (3) One pellet entry wound quarter inch circular without charred margin from the medial and middle of right upper leg. The pellet pulpable in the injury. (4) One pellet entry wound --" x --" with charred margins on lateral side of left thigh as an entry wound and a lacerated wound 1/3" x 1/3" on the medial aspect of same leg at same level. (5) An abrasion 3/4" x --" on the lateral side of left upper leg in the middle with charred margins. (6) Abrasion --" x --" below the right scrotum. (7) Two pellet entry wounds --" x --" with charred margins on the both buttocks. According to him all these injuries were caused by the dis--charge of a fire-arm such as shot-gun. The injuries were ante--mortem. Injury No. 7 was individually sufficient to cause death in the ordinary course of nature. On the internal examination of the dead body Dr. Moeed found the following injuries :- Abdomen : a peritoneum was punctured in the lower part. Cavity was containing blood and clots. Small intestines were perforated at various places. The urinary bladder was per--forated at to places. Both the illiac bones were fractured. Other organs were healthy. Stomach contained semi- digested rice meals. In his opinion Nihal had died as a result of haemorrhage and shock due to the above injuries. However, he was not sure as to the intervening the when Nihal was injured as a result of gun-fire and his consequent death. By looking at the nature of external injuries found on the dead body of Nihal, it is clear that he was shot from the very close range of about 4-6 feet as the margins of all these injuries were found to be charred. In this view the injuries in question could not have been caused from a distance of 5-6 paces which accord--ing to P. W. Gullan was the case. The further reason for which the version of P. W. Gullan cannot be believed is that the to accused are alleged to have come to the house of Amir Bukhsh fully determined to take the life of Nihal and in' order to success--fully accomplish their mission they would have naturally shot the deceased through the vital parts of his body and not in the manner by which all the external injuries were caused to him below the waist. 12. The evidence of Investigating Officer Imam Din also does not support the evidence of P. W. Gullan. According to Imam Din the dead body of Nihal was found near the entrance of Achar's house at point `A' of the sketch of wardat (Exh. 9). He also found a pool of blood around the dead body and further that there was a trail of blood which went out side the entrance of the compound (i.e. Beyond point `A') for about 10-11 paces. However, Imam Din does not say a word if there was any trail of blood between the house of Amir Bukhsh where deceased Nihal is alleged to have been shot and point `A' where his dead body was found. The fact that this is what P. W. Imam Din had actually discovered finds corroboration from the evidence of Mehar P. W. 8, who was a witness to the mash Imama of wardat and also by the said mashirnama itself in which the same facts have been recorded. Additionally accord--ing to both these witnesses to empty shells were found at about 7-8 paces from the dead body which were taken into possession and sealed on the spot. This being the admitted evidence in regard to the most crucial features of the prosecution case it is
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obvious that the learned Sessions Judge has dealt with the case in a manner which militates against the principles of safe administration of Criminal Justice. 13. The case of the accused was of complete denial. In fact what they stated was that deceased Nihal was killed during the dark hours of the night by an unknown assailant and that they have been involved merely on account of suspicion. The case of the to acquitted co-accused namely Haji and Yar Muhammad was that on the night of incident they woke up on the cries of "thief", "thief" and they saw to thieves running away from the house of Achar who was following them. One of the thieves fired at Achar and Achar fired in retaliation. At this they also fired at the thieves with their licensed guns as a result of which one of the thieves fell down out side the entrance of the house of Achar. When both of them approached the fallen person `they found that it was Nihal and consequently they informed Yaqoob and the other P. Ws. And it was thereafter that Yaqoob went and lodged the F. I. R. Of the incident.' So far as the third acquitted co-accused namely Taj Muhammad is concerned he simply stated that on hearing the gun reports he woke up and when he went to the wardat he found Nihal lying dead near the entrance of the compound at point `A'. 14. By examining all this evidence it is clear to us that P. W. Gullan has deliberately suppressed the truth. The admitted position is that the F. I. R: of the incident was lodged by P. W. Yaqoob on the basis of information conveyed to him by P. W. Gullan in regard to the actual occurrence. The F. I. R. Was lodged almost within three hours of the incident and if all the five accused were really present in the courtyard of the house of Amic Bakhsh, it is -inconceivable that P. W. Gullan would have failed to mention this fact to P. W. Yaqoob. Similarly if the five accused had really repaired to the wardat after the death of Nihal and had attempted to remove his dead body with a view to causing the evidence of the crime to disappear, it would be difficult to believe that this fact would have escaped the notice of P. W. Yaqoob from being mentioned in the F. I. R. Particularly when he also claims to have seen this incident. After all the incident in question was a prominent feature in the case of the prosecution, keeping in view the fact that the P. Ws. Had raised an alarm and resisted the accused from carrying away the dead body, and consequently it was the burden of the prosecution to, show as to why nothing was said about this incident in the F. I. R. In this view the case of the prosecution appears to be clearly doubtful and it was for this reason that the learned Sessions Judge has disbelieved the version of the P. Ws. In regard to the alleged attempt by the accused to carry away the dead body of Nihal. 15. After scrutinizing the evidence of the prosecution care--fully we are of the view that the version of the accused appears to be plausible that Nihal was shot to death by an unknown assailant during the dark hours of the night and that the crime was wholly un-witnessed. It would be recalled that according to P. W. Gullan deceased Nihal had gone to and returned from the nearby jungle through the eastern entrance of the common com--pound at point `A' of sketch of wardat Exh. 9. The admitted case of the prosecution is that the dead body of Nihal was found near the entrance of Achar's house at point `A' with a pool of blood around it and further that a trail of blood led out from the compound to a place 10-11 paces out side the entrance of the common compound. Additionally to empty shells were also found lying at a distance of 6-7 paces from the dead body of Nihal which were taken into possession by Investigating Officer Imam Din and sealed on the spot. From all this it is reasonably clear that the deceased appears to have been shot from the point blank range at the place out-side the entrance of the common compound from where the trail of blood was discovered to have led within the compound where his dead body was ultimately found. It seems to us that the assailants of the deceased had been lying in wait for him out side the entrance of the common compound and no sooner they heard the foot steps of the deceased they shot him from a very close range perhaps from the lying or kneeling post--tion. The fact that this was the case is proved by the nature of external injuries on the dead body of Nihal some of which were found on the laternal aspect of his right lower leg, ankle and the lateral aspect of his left thigh
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and left upper leg. The nature of these injuries, the margins of all of which were found to be charred, further shows that the assailants had clearly taken the advantage of the dark night and when the deceased was about to pass through their ambush they shot him from the close range of about 2-4 feet. The injuries in question further indicate that the deceased was shot during the dark hours of the night as otherwise it would be inconceivable that his assailants would not shoot him through the vital parts of his body. We are, therefore, clear in our mind that after the deceased was shot at the place out side the entrance of the common compound he appears to have struggled and reached -the…
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