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Petitioner: LAL BUX And Another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ahmed Ali U. Qureshi, Syed Sajjad Ali Shah Title: LAL BUX And Another vs THE STATE Case No.: Criminal Appeal No. 56 and Confirmation Case No. 4 of 1985 Date of Judgment:1986-12-23 Reported As: 1986 P Cr. L J 1066 Result: Appeal accepted
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J.--By impugned judgment, oaten 20-2-1985, learned Sessions Judge, Dadu, camping at Kotri has convicted both the appellants under section 302/34, P.P.C. And has sentences appellant Lal Bux to death and a fine of Rs.5,000 or in default to R.I. For two years and appellant Ghulam Mustafa to life imprisonment and a fine of Rs.5,000 or in default to R.I. For two years more. It is further directed that if fine is recovered, half of its should be paid to the heirs of deceased as compensation. Both the appellants have filed joint appeal against their conviction and sentence and there is also before us reference for confirmation of death sentence. We propose to dispose of both the reference and the appeal by this single judgment. Briefly stated the prosecution case is that there was enmity between appellant Lal Bux alias Lala and deceased Abdul Sattar and in that context before the incident in this case, appellant Lal Bux had filed a criminal case against deceased Abdul Sattar. In the instant case incident took place on 3-6-1982 at 6.00 p.m. On Liaquat Road in Kotri Town. Deceased Abdul Sattar and his brother complainant Abdul Qayoom were going together, when they were confronted with both brothers appellants namely Lal Bux alias Lala and Ghulam Mustafa and their father Fazal Muhammad, Fazal Muhammad instigated his sons not to spare, on which deceased and complainant were attacked. Appellant Ghulam Mustafa caught hold of deceased Abdul Sattar, who was given knife blows by appellant Lal Bux. After receiving injuries Abdul Sattar fell down unconscious. Appellants and their father Fazal Muhammad ran swa y from the scene of offence. Incident was seen by complainant Abdul Qayoom and three other witnesses. Leaving behind other eye--witnesses with injured Abdul Sattar, complainant Abdul Qayoom himself went to Police Station Kotri, where he lodged F.I.R. Which was recorded by A.S.I. Muhammad Nawaz Shah. Meanwhile injured Abdul Sattar was taken
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to Civil Hospital, Hyderabad, where he was admitted. A.S.I. Muhammad Nawaz Shah prepared Mashirnama of injuries of Abdul Sattar and issued letter to the doctor and then returned to the scene of offence. He prepared Mashirnama of scene of offence and recovered blood-stained earth which was put into a sealed parcel. He recorded statements of witnesses and same night at 1.00 a.m. Injured Abdul Sattar died in the hospital. He prepared Inquest Report at the hospital and handed over investigation to S.H.O. Jan Muhammad who verified progress of the investigation and arrested appellant Lai dux anti his father Fazal Muhammad on 4-6-1982. Appellant Lal Bux while in custody led to his house and produced blood-stained knife from a box. The knife was put into a sealed parcel. S . H .0. Arrested appellant Ghulam Mustafa on 8-6-1982 from Kotri but nothing incriminating was recovered from him. After completion of all other steps of investigation, challan was presented in the Court on 12-6-1982 showing both appellants and their father Fazal Muhammad in custody. It appears from the record that subsequently learned Additional Sessions Judge at Kotri granted bail to all the three accused in this case and subsequently before the commencement of trial proceedings Fazal Muhammad was murdered and the trial proceeded against the present two appellants who have been convicted and sentenced as stated above. We have heard Mr. Agha Abdul Rasool, Advocate for the appellants and Mr. Murtaza Hussain for A.- G. For State. Now first we take up ocular evidence for consideration. Prosecution has examined four eye--witnesses. Incident took place at 6.00 p.m. On 3-6-1982. In the month of June on that day sun had set at 7.19 p.m., hence at 6.00 p.m. It was middle of evening with bright daylight leaving no room at all for mistaken identity. Since incident took place in the Bazar where there were shops and it was evening time so it could be seen by witnesses. P.W. 3 complainant Abdul Qayoom, who is brother of deceased Abdul Sattar claims to be in the company of deceased at the scene of offence at the relevant time but we do not feel inclined to rely upon him for the reason of inherent inconsistencies and discrepancies in his evidence. Complainant claims in his deposition that Ghulam Mustafa, Lai Bux and Fazal Muhammad attacked him and deceased and Lal Bux gave knife blows to deceased. Complainant has not received even a scratch. Had complainant been present at the spot, he would have certainly tried to save his younger brother at the time of assault and in that process he would have received some injuries. Even otherwise, three assailants would not have allowed complainant to go unpunished particularly when complainant was brother of deceased and assault was made with vengeance. Complainant being a young man of about 24 years at the time of incident did not make an attempt to chase and apprehend any or of the three assailants. It would be pertinent to point out here that at the time of incident appellant Lai Bux was very young of about 16 years of age and appellant Ghulam Mustafa was of the same age as complainant. Age of father of the two appellants is not given but it can be presumed that he might be of probably double the age of the complainant In such circumstances claim of the complainant that lie was present at the spot when his brother was given knife blows and he remained, uninjured and could not make an attempt to save his broth, is not free. From doubt. There are many other factors which fortify the doubt with regard to the presence of the complainant at the spot at the time of incident. It appears that incident took place at 6.00 p.m. And report lodged at Police Station Kotri at 7.00 p.m. While the distance between police Station and the spot was hardly 1 and -- furlongs. Now if complainant was present at the spot, he could have made it to the police Station at such a short distance within the shortest possible time of about 10 minutes. When complainant was examined in the trial Court he stated that after the incident, he left P.Ws. With his injured brother Abdul Sattar and himself repaired to the Police Station, Kotri where h lodged F.I.R. Police reached the place of offence and took the injure to the hospital and he also accompanied the Police to the hospital. In the cross-examination complainant stated that he lodged F.I.R. After about 10 minutes of the occurrence. In the cross-examination it we suggested to the complainant but he denied that he
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was present in the house and somebody informed him that Abdul Sattar had sustained Knife injuries. He also denied that he straightaway took his brother the hospital and thereafter lodged the F.I.R. As against this F.I.K clearly shows that it was lodged after one hour. Secondly it show that complainant had first removed his brother to Lal Bati Hospital Hyderabad and thereafter came to the Police Station for report. In the context P.W. 11 Muhammad Nawaz Shah. A.S.I. Has also deposed before the trial Court that on the day of incident at 7.00 p.m. Complainant Abdul Qayoom came at the Police Station and lodged F.I.R. And after, recording F.I.R. He (A.S.I.) went straight to the Civil Hospital. Hyderabad where injured Abdul Sattar was already admitted. Perusal of evidence of complainant shows that he has not been able to give, satisfactory explanation about delay of one hour in lodging F.I.R. Even if it be assumed that complainant took away injured Abdul Sattar in Rickshaw to hospital, then Rickshaw could have been stopped at Police Station which was only at 1 and -- furlongs and report could have been lodged before proceeding to the hospital. We coo not understand why complainant persistently stated in his deposition before the trial Court that he left injured Abdul Sattar at the spot in the care of other eye-witnesses and himself first went to the Police Station where he lodged F.I.R. And then brought the Police to the spot from where injured was taken to the hospital. On this point that injured Abdul Sattar was left behind at the spot to be locked after by the eye--witnesses, while complainant went to the Police Station for report, complainant is not supported by other eye-witnesses who have deposed to the contrary. We are, therefore, of the view that it is probable that I complainant was not present at the spot at the time of incident and he was informed later that is why about one hour was consumed in filing the F.I.R. And that delay has not been explained and further in suppressing that fact lies have been spoken by the complainant. Now we take up P.W: 2 Ghulam Nabi eye-witness. He is named by complainant in F.I.R. He is Bhatti by caste and the complainant is also Bhatti but this witness claims that he and complainant are not related among themselves. He admits that he and complainant are caste --fellows. He further asserts that at the time of incident he was standing near Cafe Kazafi at Liaquat Road in Kotri and saw the incident from a distance of 8 to 10 paces. According to him Fazal Muhammad caught hold of complainant Abdul Qayoom, Ghulam Mustafa had caught hold of deceased Abdul Sattar while Lal Bux gave 3 or 4 knife blows to Abdul Sattar. Abdul Sattar fell down and became unconscious. Many persons gathered at the scene of offence and among them were Abdul Aziz and Khuda Bux. In the cross-examination this witness stated that at the relevant time he was a labourer and on the day of incident he was returning after doing, his work when he saw the incident. At the time of incident many shopkeepers were present and Mashir Hanif was also present in his shop. Within 15 to 20 minutes of the incident police had reached the Wardat. Complainant had taken away deceased Abdul Sattar from the scene of offence. Police remained at the scene of offence and P.Ws: Abdul Aziz and Khuda Bux had also remained at the scene of offence. This witness further deposed before the trial Court that his house was about 2 -- furlongs away from the scene of offence. He further admitted that he participated in the funeral ceremony of deceased Abdul Sattar and P.Ws. Abdul Aziz and Khuda Bux also participated. He stated before the trial Court that deceased and his brother complainant had come to the shop of Mashir Hanif for taking grass and he was confronted with his statement under section 164, Cr.P.C. Wherein he had not stated so. He was also confronted with his police statement in which also he had not said so. In the trial Court this witness stated that P.Ws. Abdul Aziz and Khuda Bux were present at the time of incident but in his police statement he had taken the name of only Abdul Aziz. Khuda Bu)t is not mentioned in his police statement. Complainant Abdul Qayoom was not sure in his evidence about the presence of this witness at the spot. He did say that Ghulam Nabi was present at the time of incident but he further stated that when he went to the police station he left behind P.Ws. Abdul Aziz and Khuda Bux near his injured brother Abdul Sattar. He did not mention the name of Ghulam Nabi in the names of
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persons left behind to look after the injured Abdul Sattar. This witness Gholam Nabi further claims in his deposition to be present at the spot at the time of arrival of Police but was evasive in his evidence in saying as to where and when his statement was recorded. In the examination-in-chief he stated police reached the scene of offence, which shows that he was at that time. In the cross- examination he stated that within 15 the occurrence police had reached the scene of offence. Complainant had taken away deceased Abdul Sattar from the scene of offence. Police remained at the scene of offence till he was there and P.Ws. Abdul Aziz and Khuda Bux also were present there. At another place in the cross-examination this witness stated that his statement was recorded by the police on the same day but again did not clarify to where and when. P.W. 11, Muhammad Nawaz Shah, A.S.I. Stated it his deposition before the trial Court that on 3-6-1982 when incident place, he recorded police statement of P.W. Abdul Aziz and or after 12.00 in the night of 3rd June, 1982, he recorded of P.Ws. Muhammad Iqbal, Shakeel Ahmad Ghulam Nabi, Bux, Hanif Ahmad and Hamid Ali. It was further testified by Officer in the trial Court that on 4-6-1982 at about 1.00 in the night complainant came and informed him at police station Abdul Sattar had expired in the hospital. This Investigating has further stated in the cross-examination that he recorded of P.W. Abdul Aziz in the Civil Hospital and of other witnesses P.Ws. Ghulam Nabi and Khuda Bux at the scene of offence. At place in the cross-examination the Investigating Officer stated all eye- witnesses of the incident were present in the hospital injured when he reached the Civil Hospital at about 8.00 It is surprising why this I.O. Did not record the police statement the eye-witnesses in the hospital on the first occasion. Coming back to the point as to when and where police statement of P.W. Ghulam Nabi was recorded, we do not get any help from the evidence of eye witness and on the contrary if on this point evidence of this with is to be read in juxtaposition with evidence of investigating Officer. Muhammad Nawaz Shah mystery still deepens. Now according to P.W. Ghulam Nabi after the incident complainant took away injured Abdul Sattar and within 10 to 15 minutes police came to the spot and at time he was present there. If that be so then why police this witness was not recorded at the spot at that time. If Muhammad Nawaz Shah is to be believed then according to him came at police station at 8-00 p.m. And lodged the report which he went straight to Civil Hospital. Hyderabad, where injured and there he reached at 8-00 p.m. And found all eye- there with injured but still police statement of P.W. Ghulam was not recorded at that time. On the other hand this I.O. States he recorded police statement of P.W. Ghulam Nabi on the night 3/4 of June, 1982 after 12 in the night and that also where; does not say anything. In the circumstances, we feel that this is not such, on whom implicit reliance can be placed. Now we take up eye-witness P.W. 4 Abdul Aziz. He is Dawood Pota by caste, while complainant is Bhatti. He claims that at the time he was returning from his shop and was going towards his on the way he saw the incident. He stated that his shop I furlong away from the scene of offence and was near Petrol Pump. About the incident he has deposed that when comp-- and deceased reached near the scene of offence at the instigation Muhammad, Ghulam Mustafa grappled with deceased Abdul Sattar Bux gave knife blows to Abdul Sattar on various parts of his Fazal Muhammad grappled with complainant at the time of incident. Abdul Sattar fell down after receiving injuries in the cross-examination before the trial Court this witness stated that many persons of the town had gathered at the scene of offence at the time of incident, I Within 10 to 15 minutes after the incident, injured Abdul Sattar was taken away in Rickshaw by complainant. After departure of injured this witness went away from scene of offence to his house It was further stated by this witness that he did not know at what time complainant filed F.I.R. And at what time Police reached at the scene of offence. On the same day at about 8-00 or 9-00 p.m. He was called by the Police and his statement was recorded. He has not stated as to where he was called by the Police. He denied a suggestion in the cross-examination that his statement was recorded under pressure of the complainant. This witness was confronted with his
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164, Cr.P.C. Statement where he had not stated that incident was also witnessed by P.Ws. Ghulam Nabi and Khuda Bux. It would be pertinent to mention at this stage that before the trial in this case commenced Fazal Muhammad father of both appellants in this case was murdered and in that case Abdul Qayoom complainant and this witness were taken in custody as accused persons. At the tithe when complainant Abdul Qayoom and this witness appeared in this case as witnesses for having their evidence recorded, both were in custody. We do not wish to feel prejudice against complainant and this witness Abdul Aziz on account of the fact that both are allegedly accused persons in the case of murder of Fazal Muhammad lather of appellants because that case is pending and is to be decided by the trial Court according to law and merits. All what we can say at this stage is that this fact shows that both these witnesses are interested. In view of what is alleged against them now, it can be said safely that had they been present at the spot at the time of incident in this case they would have attempted to save deceased Abdul Sattar from the assault and also would have attempted not to allow the assailants to run away. In both the events they would have sustained some injuries incidentally it may be mentioned that P.W. Abdul Aziz testified before the trial Court that appellant Lal Bux gave knife blows to Abdul Sattar and he was confronted with his 164, Cr.P.C. Statement where he had stated that deceased was given injuries by Chhuri. This discrepancy l has become more significant for the reason that this witness has stated that by profession he is blacksmith (Lobar). We had seen weapon of offence in the Court and we found that it was a knife with handle and it cannot be mistaken with Chhuri. Last eye-witness who remains to be dealt with is P.W. 7 Khuda Bux. He is Lashari Baloch and claims to be independent According to him 'at the relevant time he was present near the grass cutting shop. P.W. Abdul Aziz had met him there and then he saw the incident. He further claimed that for about 15 to 20 minutes after the incident he and P.W. Abdul Aziz remained at the scene of offence till injured Abdul Sattar was taken away in a Rickshaw. After that he and Abdul Aziz both went away. Police recorded his statement on the next day. He has not given satisfactory reason in his deposition to explain his presence at the scene of offence at the relevant time. It has admitted in his cross-examination that case of his sister Mst. Shahzadi for dissolution of her marriage was pending in the Court of Civil Judge at Kotri where complainant was a clerk. Further this witness explained that there was compromise in that case outside the Court as such the suitwas withdrawn. This witness made still another admission that in the year 1980-81 he was running a shop at Kotri of fuelwooo and he taken that shop on rent from the complainant. Not only this but this witness further stated that complainant in this case was living in the house of this witness since August 1980 on rent. This witness further in the cross-examination also made a concession in favour of the appellants by saying that assailants had cloth on their faces but their faces were visible. It would be pertinent to mention here that the name of this witness Khuda Bux is not mentioned in F.I.R. By the complainant. While analysing ocular evidence, we remained mindful of the guidelines laid down by the Supreme Court of Pakistan in the cases of State v. Mushtaq Ahmad PLD 1973 SC 418 and Yaqoob Shah v. The PLD 1976 SC 53. In the first reported case it is halo that Maxim: "Falsus in uno falsus in omnibus" cannot be applied to administration of criminal justice and Courts have to sift, "chaff from grain". In the second reported case the relevant observation is as under:--- "It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted, with scores of on-lookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that but these "independent" on- lookers are not yet ever prepared to say in Court what they have seen and thereby risk animosity 'of the assassin or his partisans."
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The difficulty with which we are confronted during the appraisal of ocular evidence is that there is delay of one hour in filing the when the distance between Police Station and the spot is 1 -- furlongs. Complainant Abdul Qayoom is brother of deceased Abdul Sattar and has made mess of evidence on this point. In F.I.R. He stated that took injured Abdul Sattar to hospital at Hyderabad and after having admitted there, came to the Police Station for report. That was the explanation of delay of one hour when Police Station was at 1 -- furlongs from the spot. In the trial Court complainant took a somersault and testified that after the incident he left P.Ws. Abdul Aziz and' Khuda Bux near his injured brother Abdul Sattar and himself came to the Police Station, Kotri where he lodged F.I.R. And after the lodging of F.I.R. He brought Police to the scene of offence from where injured was taken to the hospital accompanied by him. Complainant was very persistent during his evidence in the trial Court about this stand and stuck to it whole heartedly during the' cross- examination. Other eye-witnesses opposed complainant and deposed that immediately after the incident complainant took away injured Abdul Sattar in Rickshaw and Police came to the spot later. On this point complainant is falsified, by P.W. 11 Muhammad Nawaz Shah, A.S.I. , who deposed that complainant came alone to the Police Station for filing of F.I.R. And after registering of F.I.R., he went with complainant to Civil Hospital where he found injured Abdul Sattar alive but unconscious and prepared his Mashirnama of injuries Exh. 18. Eye-witnesses P.W. 2 Ghulam Nabi and P.W. 4 Abdul Aziz deposed that complainant took away injured Abdul Sattar from the spot after the incident in a Rickshaw and then Police came to the spot. While P.W. 7 Khuda Bux deposed that after the incident, complainant took away injured Abdul Sattar in a Rickshaw and then he also went away from there and he did not know further as to when Police came and when F.I.R. Was lodged. As if this confusion was not enough, addition was made by P.W.9 Ghulam Nabi, who was corpse---bearer and he deposed that he took injured Abdul Sattar from Kotri to L.M.C. Hospital at Hyderabad at 5.00 or 5.30 p.m. In Suzuki accompanied by complainant Abdul Qayoom. In cross-examination he stated that injured was taken to the hospital from the scene of offence which was located on Liaquat Road, Kotri. His evidence was to the effect that F.1.R. Was not lodged and complainant remained with injured in hospital till he died. At one point P.W. 11 Muhammad Nawaz Shah, A.S.I. Stated that after registering F.1.R. When he reached hospital all the eye-witnesses were there but he recorded statement of only one witness Abdul Aziz. If it be assumed that complainant was anxious to take his injured brother to the hospital first and foremost, then it is surprising why one of the other three eye-witnesses did not rush to the Police Station which is 1J furlongs to lodge F.I.R. Promptly. It is for these reasons collectively and individually given in the appraisement of evidence of each eye- witness, we hold that F.I.R. Is a suspect document and the eye-witnesses do not inspire confidence to be implicitly relied upon. One other aspect of ocular testimony is that none of the four eye-witnesses produced by the prosecution in this case has been able to give satisfactory account of his presence at the spot at the time of incident. None of them is a natural eye-witness in the sense that he being a shopkeeper was present there at the relevant time. P.W. 11 Muhammad Nawaz Shah, A.S.I. Has admitted in his evidence that on the night between 3/4 of June, 1982, he examined P.Ws. Muhammad Iqbal, Shakeel Ahmed, Ghulam Nabi, Khuda Bux, Muhammad Hanif and Hamid Ali. From the witnesses mentioned above only Ghulam Nabi and Khuda Bux have been produced as eye-witnesses but none of the other witnesses mentioned above has been examined by the prosecution. P.W. 2 Ghulam Nabi has deposed before the trial Court that Mashir Hanif was present at the time of occurrence in his shop and other shopkeepers were also present in their shops at the time of incident. Complainant Abdul Qayoom denied a suggestion in his evidence and stated that he did not know Iqbal and Fakhruddin and also could not say if their houses were near the scene of offence or not, but admitted categorically that many persons had gathered there at the spot at the time of incident including shop-owners and residents of the houses nearby. In such circumstances
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why no natural eye-witness was produced by the prosecution. We do understand anxiety of the people to keep away from giving evidence in the cases of other persons…
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