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Petitioner: NAWAB and 4 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Deedar Hussain Shah, Muhammad Aslam Arain Title: NAWAB and 4 others vs THE STATE Case No.: Criminal Appeal No,258 and Confirmation Case No,20 of 1992 Date of Judgment:1994-10-06 Reported As: 2002 P Cr. L J 913 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MUHAMMAD ASLAM ARAIN, J.--- Appellant Nawab son of Sattar Dino, Muhammad Bux son of Malli, Manzoor Ahmad son of Ahmad, Chutto son of Soomar and Ghulam Nabi son of Piaro, all by caste Ujjan, were tried on charge under sections 302, 307, 147, 148 and 149, P.P.C. By the learned Sessions Judge, Naushero Feroz, in that, they formed unlawful assembly, being armed with deadly weapons, committed rioting, used force and violence, in the result whereof, Khair Muhammad and Ghulam Nabi died due to fire-arm injuries, while complainant and P.Ws. Escaped. On conclusion of trial the learned Sessions Judge found appellant guilty of offence under sections 302 and 109, P.P.C. And awarded death sentence to each one of them and fine of Rs,20,000 and in default, R.I. For two years more. Appellants are further convicted under sections 148 and 149 and sentenced to R.I. For one year and fine of Rs,1,000 each and in default further R.I. For one month. It is also directed that two- third of the fine, if recovered, may be paid to the heirs of both deceased as compensation. 2. We have before us the appeal against impugned judgment, dated 17-11-1992, filed by the convicts/appellants and a reference for confirmation of death sentence which we propose to dispose of by this judgment. 3. Prosecution case, as disclosed in F.I.R. No,32 of 1998 lodged at Police Station Tharro Shah on 3-4- 1984 by complainant Chanesar Ujjan is, that on the said date, he alongwith P.W. Ghulam Shabbir, deceased, Master Ghulam Nabi and deceased Khair Muhammad left for Jammal Ujjan Village School. At about 9-00 a.m. While they reached at the door of the Primary School accused Nawab Miskeen. Liaquat alias Azizullah and Chutto emerged from inside the school. All the four accused were armed with guns and seeing the complainant party, accused Nawab challenged deceased Ghulam Nabi and Khair Muhammad, saying that they had disgraced his brother Pir Bux on the
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occasion of marriage ceremony of Sharifuddin and, therefore, they would not be spared. Saying so, all the accused directly fired at deceased Ghulam Nabi and Khair Muhammad. At the same time, from the- nearby wheat cultivation, accused Manzoor, armed with a gun, Ghulam Nabi, Muhammad Bux and Photo, all armed with pistols, emerged and they also fired at the two deceased, which fires duly hit the deceased who fell down on the ground. Complainant and Ghulam Shabbir were threatened not to come near, else they would also be murdered and, therefore, while they were fleeing, the accused fired at them but, they escaped unhurt. On the noise and fire-arm reports P.Ws. Muhammad Ali and Mevo came running who also saw the accused running away. After the accused left, the complainant and the witnesses saw that both Khair Muhammad and Ghulam Nabi were dead due- to profuse bleeding on account of fire-arm injuries. Complainant further stated that he gave the details of the incident to the witnesses and arranged to carry dead bodies of the deceased to the Police Station Tharro Shah, where F.I.R. Was lodged. It is worth mentioning that the complainant specifically stated that at the instance of Pir Bux and Sohrab, the accused had committed the murders due to previous enmity in which about two years back the accused had abducted one Mst. Ghulam Sakina, which case was pending in Hudood Court at Hyderabad. In that case one Sher Khan, brother of deceased Ghulam Nabi was a witness and about 15/16 days prior to this incident accused Miskeen had filed a case against Ghulam Nabi and others. This was the motive as suggested in the F . I. R. 4. On the same date and time another F.I.R. No,33 of 1984 was also lodged at the same police station by one Loung, under section 302, P.P.C. (Exh.27) regarding the murder of Photo and the accused named in the said F.I.R. Were Chanesar (complainant of this case), Ghulam Shabbir, Muhammad Ali (both P.Ws. In this case), Ghulam Mustafa, Qadan, Ali Gohar, Abdul Fateh and Ali Sher, who were all arrested on 5-4-1984 but released by the Investigating Officer under section 497, Cr.P.C. As the witnesses in said case had not supported the complainant. 5. After registration of F.I.R. No,32 of 1984, S.H.O. Abdul Qudoos proceeded to the Wardat alongwith two Mashirs and P.W. Mevo Khan where he saw the place of incident shown by Mevo Khan and prepared memo. (Exh.20/D). On 12-4-1984 he recorded 161, Cr.P.C. Statements of P.Ws., Muhammad Ali and Ghulam Shabbir and on the same date arrested accused Nawab, Ghulam Nabi, Manzoor, Chutto and Muhammad Bux under memo. (Exh.20/E). On the same day he also recovered a SBBL gun and five live cartridges at the pointing of accused Nawab (memo. Exh.20/J) a SBBL gun and five live cartridges at the pointing of accused Chutto (memo. Exh.20-F) and a country-made pistol and two live cartridges at the pointing of accused Muhammad Bux (memo. Exh.20/G). 6. On 27-4-1984, accused Ghulam Nabi volunteered and led the police to his house and produced a country-made pistol of .12 bore and two live cartridges (memo. Exh.20-H) and on the same date i,e, 27-4-1984, arrested accused Manzoor led the police and produced one SBBL gun of .12 bore and 12 live cartridges (memo. Exh.20/I). The blood-stained earth secured at the time of inspection of Wardat was referred to Chemical Examiner. After necessary investigation the case was challaned against the five appellants herein, whereas accused Miskeen and Liaquat alias Azizullah were found innocent during investigation. Accused Photo had since died on the same date and presumably during the same incident, but nothing was mentioned about him in the challan. 7. On 8-7-1987 the IIIrd Additional Sessions Judge, Nawabshah framed charge against the appellants under sections 302, 148 and 149, P.P.C. To which the accused pleaded not guilty and claimed trial. After the creation of new district of Naushero Feroz, the case was transferred to Naushero Feroz, but before such transfer, the prosecution had examined almost all the witnesses. The judgment was announced by the learned Sessions Judge, Naushero Feroz before whom the trial was concluded. 8. At the trial, prosecution examined P.W.1 Dr. Khaliq-uz-Zaman, Medical Officer, Taluka Headquarters Hospital, Khandiaro (Exh.11) who conducted post-mortem examination over the dead
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bodies of deceased Khair Muhammad and Ghulam Nabi and produced post-mortem report (Exh.11/A). P.W.2. Complainant Chamesar (Exh.13) who produced F.I.R. No,32 of 1984 (Exh.13/A), P.W. Mevo having been given up under statement (Exh.14), P.W.3 Noor Muhammad (Exh.15) who carried the dead bodies to hospital for post-mortem examination, P.W.4 Ghulam Shabbir; an eye-witness (Exh.16) P.W.5 Muhammad Ali (Exh.17) another eye-witness, P.W.6 Roshan Ali Tapadar (Exh.18) who produced sketch of Wardat (Exh.18/A), Mashir Arbab Ali having been given up under a statement (Exh.19), P.W.7 Summo Khan Mashir (Exh.20), who produced Mashirnama of dead bodies of the two deceased (Exh.20-A), two inquest reports (Exh.20/B and Exh.20/C) Mashirnama of Wardat (Exh.20/D), Mashirnama of arrest of accused (Exh.20/E), Mashirnama of recovery of a gun and live cartridges from accused Chutoo at his pointing (Exh.20/F), Mashirnama of recovery of pistol and cartridge from accused Muhammad Bux (Exh.20/G), Mashirnama of recovery of pistol and cartridge from accused Ghulam Nabi (Exh.20/H), Mashirnama of recovery of gun and cartridges from accused Manzoor (Exh.20/I) and Mashirnama of recovery of gun and cartridges from accused Nawab Khan (Exh.20/J). The last witness examined by prosecution is P.W.8 Abdul Qudoos, S.H.O. Police Station, Tharoo Shah (Exh.25) who produced report of the Chemical Analyser (Exh.26) and copy of F.I.R. No,33 of 1984 lodged by Loung regarding murder of Photo (Exh.27). 9. In their statements under section 342, Cr.P.C. Appellants denied the allegation of murder of the two deceased Khair Muhammad and Ghulam Nabi and all other prosecution allegations. Appellant Nawab further stated that there was litigation between him and complainant party and in proof thereof he produced copy of judgment in Sessions Case No,137 of 1981 regarding the abduction of Mst. Ghulam Sakina (Exh.33), challan of the said case (Exh.34), a true copy of application against Syed Akbar All (Exh.35) for whom it was stated that this case was engineered by him. Appellant Nawab also produced a certified true copy of muster roll of the school where deceased Ghulam Nabi was a teacher to show that on the date of incident, said deceased had signed the muster roll and the prosecution case that the deceased had not yet reached the school when this incident took place, was falsified. He also stated that All Akbar Shah managed to have the case lodged against the accused due to the influence of his cousin Zafar Ali Shah who was M.N.A. The statements of co-accused were similar. 10. Accused examined D.W.1 Shamsuddin Solangi (Exh.41) who was Sub-Divisional Education Officer and he produced copy of the daily attendance register (Exh.42) for April, 1984 indicating that deceased Master Ghulam Nabi had signed the muster roll of school on 3-4-1984 i,e, the date of incident. Accused also examined D.W.2 Lashkar Ali (Exh.43) another teacher in the same school, who confirmed that deceased Master Ghulam Nabi had signed the muster roll and was present in the school, whereas the witness himself had gone to National Bank Naushero Feroz to collect cheque of the salary of the teachers. It is worth mentioning that D.W. Lashkar All also stated that on the next day of the incident, the S.D.E.O. Had visited the school. Accused also examined D.W.3 Dr. Mansoor Ahmad Memon (Exh.45) who was Medical Officer at Rural Health Centre of Tharo Shah on 3-4-1984 when he received dead body of Photo from Tharu Shah Police and conducted post- mortem examination. He produced copy of post-mortem report (Exh.46). 11. On assessm ent of evidence before it, the learned trial Court passed the impugned judgment which is challenged in this appeal. 12. We have heard the learned counsel and perused the entire record. It is contended by Mr. A.Q. Halepota, learned counsel for the appellants, that the ocular evidence of complainant Chanesar, P.Ws. Ghulam Shabbir and Muhammad Ali is that of highly interested witnesses, as complainant Chanesar is the brother of deceased Khair Muhammad and cousin of deceased Ghulam Nabi, while P.W. Ghulam Shabbir is cousin of both the deceased and P.W. Muhammad Ali is the brother of deceased Khair Muhammad and cousin of deceased Ghulam Nabi. P.W. Muhammad Ali is also real brother of the complainant. It is argued that the prosecution case on the face of it is false, because
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deceased Master Ghulam Nabi was going to attend his duty at the school, when neither complainant Chanesar nor P.Ws. Ghulam Shabbir and Muhammad Ali had any reason to accompany him to the school. It is stated, that P.W. Ghulam Shabbir has tried to explain in his evidence the reason saying, "I had accompanied with the deceased alongwith complainant as few days prior to the incident, there was exchange of hot words between Pir Bux and Sher Khan. Sher Khan is cousin of Chanesar. They had exchanged hot words about 8 to 10 days prior to the present incident. Since that juncture, we used to accompany with deceased Ghulam Nabi off and on". This reason, according to the learned Advocate, was not sufficient to justify deceased being escorted to the school each day by complainant Chanesar P.W. Shabbir or P.W. Muhammad Ali. It is next argued that according to the prosecution case all the eight accused, four present inside the school and four hiding themselves in the wheat crop opened fires which hit the deceased. This version is falsified by the post-mortem examination of the two deceased, which indicates one injury on deceased Ghulam Nabi fired from the back and four injuries on the same part of the body of deceased Khair Muhammad. Learned counsel contends that the injuries on both deceased would be act of a single person as injuries on both are on the left side from which the assailant might have fired either one or more gun shots. To support such contention learned Advocate referred to the case of Janib and 2 others v. The State 1986 PCr.LJ 583 where it was observed that deceased had all injuries except one seated on right side of body extending from face and ear to spinal card and such injuries by four assailants did not appeal to reason and possibility of injuries having been caused by all four accused was ruled out. Reliance is also placed on the case of Abdul Ghani and others v. The State 1976 PCr.LJ 1462 where it was observed as under:-- It is not probable that four persons attacking at the same time should inflict injuries found on the person of the deceased by the doctor. It is not possible that at set of two persons each should be able to inflict two injuries on the same spot. Looking at the ocular evidence in the context of the statement of the doctor an improbability is made evident which deepens doubts against the prosecution story rather than resolves it." 13. In support of the same contention learned counsel has argued that there is contradiction between the ocular evidence and the medical evidence, for, if the prosecution case be believed that eight assailants fired at the two deceased and which according to the prosecution hit the two deceased, the injuries on the two deceased would have been numerous rather than one injury each or as a result of one fire each but could not be more. In such situation, according to the learned counsel the medical evidence has to be preferred over the ocular testimony. To support this contention learned counsel referred to the case of Bagh Ali v. Muhammad Anwar and others 1983 SCM R 1292 where it was observed, "there was an apparent contradiction in the doctor's saying that he found only one injury and the ocular testimony stating three injuries, which it was the .Obligation, of the prosecution to clarify and not of the accused". This was followed in the case of Yousuf v. The State PLD 1988 Kar. 521 where a Division Bench of this Court observed that, "where contradiction exists between medical report and ocular testimony, prosecution and not accused is obliged to clarify the contradiction and in case of conflict between two testimonies: medical evidence should be preferred". 14. Learned counsel for the appellants then pointed out that P.Ws. Ghulam Shabbir and Muhammad Ali who were both said to be eyewitnesses were examined by police on 12-4-1984 when the incident took place on 3-4-1994 and there was no obvious reason for recording their statement after delay of nine days. These two witnesses were shown as accused in the counter-F.I.R., lodged by Loung, regarding the murder of Photo. Both these witnesses Ghulam Shabbir and Muhammad Ali were also taken into custody in that case and were with the police and it became all the necessary to record their statements with utmost promptitude as they were available and had not to be called from anywhere. Contention of the learned counsel is that in such circumstances, was there a
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sufficient cause for the witnesses not to be examined soon after the incident. Such question was considered in the case of Ismail and 3 others v. The State 1983 PCr.LJ 823 where the evidence of eye-witnesses who were examined by the police 5/8 days after the incident and no explanation having been furnished for the delay in recording statement of the witnesses, was ruled out of consideration. 15. According to the learned counsel P.W. Muhammad Ali was not, in fact, with the deceased, complainant Chanesar or P.W. Ghulam Shabbir but he had come by chance and was going for the grinding of corn at the grinding machine of Gullan. In fact, as is evident from F.I.R. He was only attracted on the cries and had not witnessed the occurrence himself, but was given the facts by complainant and Ghulam Shabbir. Regarding P.W. Muhammad Ali, it is also argued, that his conduct was unusual because his own brother and cousin were murdered and being unmindful of such situation he still went to the grinding machine for grinding corn. The conduct of such witness, according to the learned counsel would cast doubt on the veracity of his statement as held in the case of Saifullah v. The State 1985 SCM R 410, where the conduct of a close relative who neither bandaged the wound of deceased, nor put the head of the deceased in his lap nor even touched the dead body of the deceased before arrival of the police, was considered as extraordinarily strange conduct on the part of such close relative. 16. Learned counsel further argued that from evidence it appears that all the eight accused named in the F.I.R. Had fired at the deceased as well as complainant, P.Ws. Ghulam Shabbir and Muhammad Ali but none of the three witnesses were injured. The reason given is, that the complainant and two P.Ws. Fled from Wardat but such reason is neither confidence-inspiring nor acceptable, for, if eight fires were shot mostly through guns, the three witnesses or at least some of them must have received some injuries. Such being not the case, the very presence of witnesses, according to the learned counsel becomes doubtful. To support this contention, learned counsel referred the case of Abdul Ghafoor v. The State 1982 SCM R 162 where it was observed as under:-- ".... It is consistently stated that the appellant and those acquitted fired many shots at the deceased with their weapons but only one bullet injury was noticed on him which was attributed to the rifle shot fired by Abdul Ghafoor first. This is an obvious lie and as other shots could not prove ineffective from such a close range or would not leave any pellets or bullet mask on the door or the wall of the house." 17. Further contention of the learned counsel is, although eight assailants had opened fires at the deceased and the witnesses, yet not a single empty was recovered from the Wardat which was inspected by the S.H.O. Soon after the incident. The recoveries of various weapons from the accused, therefore, becomes irrelevant, particularly because neither the weapons secured were sent to Ballistic Expert nor any report obtained. Learned counsel referred to the case of Dosa v. The State 1988 SCM R 1532 where it was observed that "the prosecution relied on the recovery of gun which, however, is inconsequential because no empty was recovered from the spot". 18. Contention of the learned counsel further is that motive suggested by prosecution was that a few days earlier to the incident, one Pir Bux was insulted during the circumcission ceremony of the sons of Sharafuddin which had annoyed the accused as a result of which the present offence was committed. For that, it is argued that no such question was put to the accused in their statements under section 342, Cr.P.C. And such a circumstance, therefore, cannot be used against the accused. Reliance is placed on the case of Din Muhammad v. The Crown 1969 SCM R 777. Likewise it is argued that merely because the names of accused are mentioned in the F.I.R. That cannot be taken by itself as a corroboration of ocular testimony, particularly when two accused Miskeen and Liaquat named in the F.I.R. Were found innocent during investigation. In this context learned counsel has referred the case of Gahno and others v. The State PLD 1964 (W.P.) Kar. 437 where it was held
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that mere mention of names in F.I.R. Does not constitute corroboration of ocular evidence against accused and basing conviction on evidence without some corroboration was unsafe. 19. Learned counsel, while arguing regarding overall appraisal of evidence, contended that if deceased Master Ghulam Nabi had serious apprehension of his life at the hands of accused or some of them, or that some precautionary measures were necessary, the witnesses accompanying him up to the school, must have carried some weapons be it even Lathis. None of them were armed and in the circumstances, prosecution version of showing presence of complainant and the witnesses with the deceased on the day of incident, is not only false but looks unnatural. Learned counsel referred in this respect the case of Ghazi and others v. The State 1982 SCM R 49. Learned counsel on appraisal of evidence also referred to the cases of Shah Muhammad and others v. Muhammad Bux PLD 1972 SC 321, Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Muhammad Achar v. The State PLD 1990 Kar. 314. 20. Mr. Muhammad Sarwar Khan, learned A.A.-G. While supporting the conviction and sentence awarded to the appellants has argued that the Crime No,33 of 1984 was after investigation not challaned and, therefore, complainant Loung filed a direct complaint which was also dismissed as the complainant had not appeared. It is argued that independent witnesses in the case have of course not appeared to give evidence because of the fact that normally people in the interior do not come forward to give evidence or to appear for a party to earn wrath of the opponents. Learned A.A.-G. Argued that all appellants are named in the F.I.R. But admits that it has not been mentioned specifically as to which accused was carrying what weapon. It is also argued that because the injuries sustained by the deceased are less than the number of fires allegedly shot, it was due to the reason that some of the shots may have missed and no photographic conclusions can be drawn. According to him, since the medical evidence fully corroborates the ocular testimony, that by itself would be enough to infer that the assailants had fired at the deceased which resulted into their death and even if the shots of some of the accused missed, it would be inconsequential because each accused is liable for the consequences of the acts of others under section 149 of P.P.C. 21. As to the late examination of witnesses by police, it is contended that these witnesses were shown as accused in counter-F.I.R. No,33 of 1984 filed by Loung in respect of the death of Photo. These witnesses, after they were found innocent were released in the counter-case and soon thereafter their statements were recorded and there was thus no delay, muchless, inordinate delay. Learned A.A.-G. Also contended that no exception could be taken to the evidence of solitary Mashir Sammo who was associated at all stages, beginning from the time of preparation of inquest reports till the time of arrest of accused and recoveries from them at their pointing because he is a relation of the complainant party and resided in a village close to the village where incident took place. In the present case, according to the learned A.A.-G. Although independent corroboration has not come, yet corroboration is always a rule of caution and not a rule of law. As to the motive in the case, it is argued that, firstly, the motive for commission of offence in every case is not necessary and, secondly, it was a guess of the prosecution that the accused committed the offence because of the motive as alleged. He referred to the case of Amir Khan v. Ahmad Nisar 1977 SCM R 175 where it was observed that motive, more or less is a guess on the part of the prosecution witnesses and what truly motivates an accused person to commit a crime is best known to him and not to other. It was further observed that the absence of motive or failure on the part of the prosecution to prove it does not adversely effect the testimony of eyewitnesses if they be otherwise reliable. Reference is also made to the case of Abdul Majeed v. The State 1969 PCr.LJ 1168 where it was observed that although the witnesses were interested, corroboration was not always necessary.
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22. We have also heard Mr. I.A. Hashmi, learned Advocate for the complainant, who has argued the same points as are canvassed by the learned A.A.-G. He has, however, argued that the evidence of related or interested witnesses can be believed in appropriate cases if in a given situation the independent witnesses were not available. He referred in this respect the case of Muhammad Ashraf v. The State 1989 PCr.LJ 2211, Roshan v. The State PLD 1977 SC 557 and Yaqoob Shah v. The State PLD 1976 SC 53. It is also argued, and of course very vehemently that the cause of delay in recording police statements of the prosecution witnesses has although been argued by learned A.A.-G. Yet the evidence of each eye-witness would not be rendered unreliable because of the late examination of the witnesses by police. In support of this contention, learned Advocate referred to the cases of Hamid Javed v. The State 1988 SCM R 39 and Pervaz Akhtar…
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