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Petitioner: MUHAMMAD HASSAN AND Another VS Respondent: THE STATE Opponent
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Rasool K. Sheikh, Ghulam Rasool K. Shaikh Title: MUHAMMAD HASSAN AND Another vs THE STATE Opponent Case No.: Criminal Appeal No. 256 of 1968 and Confirmation Case No. I of 1969 Date of Judgment:- Reported As: PLD 1970 Karachi 413 Result: Appeal rejected
JUDGMENT
JUDGMENT MUHAMMAD HALEEM, J.----Muhammad Hasan (22) and Sadhro (22) were tried for the murders of Muhammad Usman (45) and Natho (l7) by the II Additional Sessions Judge, Hyderabad and convicted on a charge under section 302 read with section 34, P. P. C. And each of them have been sentenced to death. They have appealed. The reference under section 374, Cr. P. C. For confirmation of their death sentence is also before us. This judgment will dispose of the appeal as well as the reference. 2. The incident occurred on 2nd March 1967 at 10-30 a.m. In the Shahi Bazar in Hala Town. The report (Exh. 14) of the incident was lodged by Noor Muhammad (P. W. 4) the same day at 11 a.m. At Police Station Hala, which is at a distance of 10 furlongs from the place of incident. This report was recorded by Qamardin A. S. I. (P. W. 12). 3. The facts of the prosecution case are these: While Noor Muhammad, Lakhano and Muhammad were in the Shahi Bazar they saw Usman coming in front of them from the south. He was being followed by appellants Muhammad Hasan and Dadhoro, the former had a double-barrel gun and the latter a hatchet. Within his sight Muhammad Hisan fired his gun at Usman from behind who fell down. He thereafter fired another shot and the pellets struck Natha, who was in the line of fire sitting in front of a shop. Sadhoro then struck hatchet blows on Usman with its sharp side. No one attempted to apprehend the appellants out of fear as Muhammad Hasan challenged the passersby not to come near them as they had come to take the revenge of his brother. They then ran towards the south from the main Bazar. Noor Muhammad, Lakhano and Muhammad perused the appellants and on the way a mounted constable, named Muhammad Maluk, also joined them in the chase. Muhammad Maluk had a rifle with him. The appellants then left the bazar side and
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went on running to the west towards the market street. The three witnesses followed the appellants up to the market and then gave up the chase. However, Muhammad Maluk continued following the appellants. They returned to the place of incident and from there Noor Muhammad proceeded towards the police station to lodge the report. On the way he met Haji Rahimdad S. H. O. And Qamardin A. S. I. In front of the office of the Deputy Superintendent of Police. Noor Muhammad then disclosed the facts of the incident to Haji Rahimdad, who deputed Qamardin A. S. I. To accompany Noor Muhammad to the police station and to record the report, while he himself went after the appellants. He had, however before leaving requisitioned police force from the police station to join him. 4. About three years before the present incident Raza Muhammad and A.I Muhammad, the brothers of the appellant Muhammad Hasan, were murdered. Ramzan, Haroon and Khabar, who are the sons of the brother of Usam and one Isso, his near relation, were tried for these two murders but acquitted by the Sessions Court. Appellants Muhammad Usman and Sadhoro had, therefore, killed Usman to avenge these murders. 5. Haji Rahimdad S. H. O. Met Muhammad Maluk at a place known as Bacha Bund. Muhammad Maluk thereafter returned as he had by then got tired. Haji Rahimdad saw the appellants running towards the west. They were about 2 or 2-- furlongs away from the Bond and thereafter they entered the Rajori Forest and the S.H.O. (Haji Rahimdad) lost sight of them. The police force had also come and joined him there. Haji Rahimdad then sent for mashirs Shafi Muhammad and Dhani Bux from their village which was at a distance of about 3 miles from Rajori Forest. Haji Rahimdad accompanied by the police force and the mashirs then tracked the prints of the appellants which were also lost in the forest. They then searched for them inside the forest and at about 5 p.m. They saw the appellants running towards the west. Haji Rahimdad with the aid of police force encircled the appellants and challenged them to drop their weapons which they did. They were then arrested. In the presence of mashirs Shafi Muhammad and Dhani Bux the gun containing two live cartridges in the chamber and the hatchet were secured. Appellant Muhammad Hasan had a khaki bag. This bag was also seized. It had in it 23 cartridges. Khaki Shalwar, shirt and Gidi (waist coat) of appellant Muhammad Hasan were seized from his person. Similarly, a trousers and shirt of appellant Sadhoro were also seized. All the above articles were taken into possession as per mashirnama (Exh. 23) in the presence of the above mashirs. The gun, the hatchet and the clothes were sealed into separate parcels. 6. Qamardin A. S. I. After recording the report went to the place of incident which was in front of the shop of Allahbachayo in Shahi Bazar. He secured two crime empties of .12 bore lying near the dead body of Usman as well as blood--stained earth from the places where deceased Usman and Natho had fallen down, as per Mashirnama (Exh. 9) in the presence of mashir Muhammad Hashim. Natho had been taken to the hospital before the arrival of Qamardin A. S. I., where he expired. He then sent the dead body of Usman for pest-mortem examina--petition and himself went to the hospital where he learnt about the death of Natho. He inspected the injuries on the dead body of Natho and prepared the inquest report and sent the dead body to the medical officer for post- mortem examination. From the hospital Qamardin A. S. I. Went to the police station and recorded the statement of mounted constable Muhammad Maluk, who had by then returned. The statement of Allahbachayo, in front of whose shop the incident had occurred, was recorded the following day as he had gone to his house and was not available that day. The statements of Lakhano and Muhammad were also recorded the following day as, according to Qamardin A. S. I. They were not available at the place of incident as they had also gone that day to their villages to give the information about these murders. Haji Rahimdad S. H. O. Returned that day at 7 p.m. To the police station after apprehending the appellants. Qamardin A. S. I. Then gave the papers relating to the investiga--petition conducted by him till that time to Haji Rahimdad.
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7. The appellants were put to identification test in Sub--Jail Hala on 13th March 1967 in the presence of Mr. Misbahuddin, a III Class Magistrate. Allahbachayo correctly picked out both the appellants. 8. The crime empties and the gun were sent to the Forensic Laboratory for matching and according to the report of the Ballistic Expert, M. Z. Iqbal, the crime empties were fired from the licensed gun of appellant Muhammad Hasan. The blood--stained clothes secured from the person of the appellants, the blood-stained earth and the hatchet secured from appellant Sadhoro sent for chemical analysis and, according to the report (Exh. 26) of the chemical analyser, the hatchet and shalwar of appellant Sadhoro and the shirt, shalwar and gidi of appellant Muhammad Hasan had human blood on them. Blood on the shirt of appellant Sadhoro was disintegrated; hence its origin could not be determined. 9. The autopsy on the dead bodies of Muhammad Usman and Natho was performed by Dr. Muhammad Hashim. He noticed two gunshot injuries on the dead body of Natho. In his opinion these injuries appeared to have been caused by discharge from a fire-arm, such as a gun and further that both the injuries were as a result of one shot; the injury on the, front side was the entrance wound while the injury on the back side was the exit wound. Both the injuries were sufficient to cause death in the ordinary course of nature. The dead body of Usman had some eight incised and seven gunshot injuries caused by a hatchet and a fire-arm. In the opinion of the doctor, the injuries were individually and collectively sufficient to cause death in the ordinary course of nature. 10. In defence both the appellants denied the prosecution case. Appellant Muhammad Hasan also denied enmity because of the murders of his brothers, A.I Muhammad and Raza Muhammad. He stated that the differences were patched up sometime before the incident on account of the intervention of Makhdoom Sahib. He denied his apprehension from Rajori Forest and further stated that the gun was recovered from his house and that he was also arrested from there. Against Muhammad he stated that he had fought with his brother 3 or 4 days before the incident. He has, therefore, given evidence due to that reason. He also stated that Muhammad was a cousin of Noor Muhammad. Against Muhammad Maluk no enmity was suggested, but it was stated by Muhammad Hasan that he had given false evidence at the instance of Rahimdad S. H. O. Against Lakhano it was alleged that his father and uncle had stood sureties for deceased Usman in a case against him under section 110, Cr. P. C. It was, therefore, that Lakhano had deposed against him. Muhammad Hashim was also said to be man of the police and for that reason it was alleged that he had deposed against the appellants. Shafi Muhammad was also described as a police witness; besides the father-in-law of appellant Sadhoro was his hart and that he owed him Rs. 500 or Rs. 700. It was for this reason that he had deposed. Enmity was alleged against Noor Muhammad also because this appellant's father had given protection to Bidoo Bhambro, who had enticed away his mother. Appellant Sadhoro stated that the witnesses were inimical towards Muhammad Hasan, his maternal uncle and that he was falsely implicated due to that reason. He denied his apprehension from Rajori Forest and stated that he was arrested from his house. 11. At the trial, the direct evidence was furnished by the testimony of Noor Muhammad (P. W. 4), Lakhano (P. W. 5), Muhammad (P. W. 6) and Allahbachayo (P. W. 7). Muhammad Maluk (P. W. 9) was also examined because he had taken part in the-chase and had followed the appellants to a sizable distance. The trial Court while convicting the appellants believed the evidence of the three eye-witnesses, namely, Noor Muhammad, Lakbano and Muhammad. As for Allahbachayo, the trial Court held that he had made an obliging admission in favour of the appellant and, therefore, accepted his earlier statement which was transferred to the file of the Sessions Court under section 288, Cr. P. C. The testimony of Muhammad Maluk was also accepted as a circumstantial piece of evidence. The evidence relating to the securing of crime empties from the place of incident and the securing of the gun; hatchet and the clothes from the person of the appellants was also
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accepted and relied on as corroborating the ocular evidence. In the result the trial Court convicted the appellants. 12. Mr. Ghulam Nabi Memon appeared for appellant Muhammad Hasan while Syed Nasiruddin appeared for appellant Sadhoro. We have examined the record of the case with their assistance and that of the State counsel. Mr. Ghulam Nabi Menton contended before us that the three eye- witnesses, namely, Noor Muhammad, Lakhano and Muhammad lived at villages away from Hala town and that it was unlikely that they would have met by chance at the gate of the Dargah in Shahi Bazar and thus witness the incident as claimed by them. It is true that Noor Muhammad resided in a village 2 miles away but his presence had been established beyond any doubt by the links in the case. He had lodged the F. I. R. Half an hour after the incident and his presence was confirmed not only by Rahimdad S. H. O. And Qamardin A.S.I. But also by Muhammad Maluk, the mounted constable, who had also joined this witness in the chase shortly after the incident. His presence, therefore, cannot be discounted on a supposed improbability and we have, therefore, no hesitation in holding that this witness was in the bazar at the relevant time and had seen the incident. The next criticism against the evidence of this witness is that he should not be believed because he was well connected with deceased Usman as he had been visiting him for the last 20 or 25 years. This can hardly be a reason for discarding the evidence of this witness. He is not related to deceased Usman and apart from visiting the deceased no other interest has come out to make him an interested witness. Even the purpose for which he had visited the deceased is not apparent. It is, therefore, impossible to draw any conclusion that he was an interested witness. He had also denied the suggestion that his mother was enticed away by Bidoo Bhambro, who was given protection by the father of appellant Muhammad Hasan. We are, therefore, not inclined to accept the enmity suggested against this witness. He cannot be said to be inimical towards appellant Muhammad Hasan. Appellant Sadhoro has not alleged any enmity against this witness. He has merely stated that he has been implicated because of his relationship with appellant Muhammad Hasan. There is, therefore, no basis for any false implication of either of the two appellants and we are convinced that this witness had seen them following deceased Usman and then killing him in the main Shahi Bazar. On conclusion is further strengthened by the fact that this witness was subjected to a lengthy cross-examination and nothing has come out to effect his credibility as a witness to the occurrence. We would, therefore, accept his evidence. 13. The presence of Lakhano is not only confirmed by Noor Muhammad and Muhammad but also by Muhammad Maluk. His name transpired in the F. I. R. And we have also no reason to doubt his presence. According to Noor Muhammad, Lakhano resided 6/7 miles away from the place of incident while Lakhano himself estimates the distance at 14 miles. The distance is either under estimated or over-estimated; in any case, the distance will not make any difference if he had come to Hala Town for a set purpose. He is neither a case-fellow nor a relation of deceased Usman. He bad left his village at 7 a.m. That morning for Hala Town to get the sale deed of his land registered and had met Noor Muhammad and Muhammad near the gate of the Dargah in the Shahi Bazar. It was from there that he had proceeded along with these two witnesses and had thus witnessed the incident. The criticism against this witness is that his presence was improbable because he lived at a considerable distance away from the place of incident and it was unlikely that he would have met the other two witnesses by chance alone. One more circumstance relied on for his absence is that when Qamardin A. S. I. Came from the police station accompanied by Noor Muhammad he was not found near the dead body of deceased Usman. From this it is suggested that if he had been there it was unlikely that he would have left the dead body. Lakhano had given a reason for coming to Hala town that day. He had also stated that after Noor Muhammad had left to lodge the report he remained at the place of incident for about 5 minutes and then went to the Sub---Registrar's office to get the deed registered. From there he went to
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inform the relations of deceased Usma n about his murder. There is nothing on record to suggest any improbability in the explanation given by this witness. No one from the Registrar's office has been examined in defence to challenge his claim that he was in the Sub-Registrar's office that day in connection with the registration of the sale deed. We are, therefore, unable to conclude that the explanation was a false one and that this witness had not seen the incident. It is also not possible to accept that Noor Muhammad would have mentioned his name in the F. I. R. In the hope that he would support the prosecution case even though, according to the learned counsel, he had not witnessed the crime. There is no evidence of any consultation immediately after the occurrence between Noor Muhammad and anyone else and it is, therefore, too far-fetched to suggest that he could figure as an eye-witness in the F. I. R. Even his interest in deceased Usman is not apparent from the evidence of Noor Muhammad; it is, therefore, not possible to accept that Noor Muhammad would have still mentioned the name of Lakhano in the F. I. R. In the belief that he had an interest in the deceased and that in any event he would support the prosecution case. Lakhano has given an explanation forgoing away from the place of incident. We have no reason to doubt it, for if he had to get the sale deed registered he would have, in all probability, gone for that purpose to the office of the Sub-Registrar. Besides other persons bad also collected at the place of incident; therefore, there was no point for him to remain with the dead body as he was neither a relation of the deceased nor in any way connected with him. He had his own work to do, and if he had left the place of incident his absence from there was not of any significance. We, therefore, attach no significance to the contention of the learned counsel for the appellants that if this witness had seen the incident he would not have left the place of occurrence. We would, therefore, accept the evidence of this witness as well. He had no enmity against the appellants. The allegation is against his father and uncle that they had stood sureties for deceased Usman. We do not think that this could be a reason for the false implication of the appellants. If his father and uncle had stood sureties that cannot be a ground of enmity between him and the appellants. Besides, there is nothing on the record to indicate any interest of this witness in the deceased. It is, therefore, not possible to conclude that he would have falsely implicated the appellants at the behest of Noor Muhammad. 14. The third eye-witness is Muhammad. He resided in the same village as Noor Muhammad and bad met him near the gate of the Dargah in the Shahi Bazar. The reason fox his visit was that he wanted to purchase cloth that day. His name also transpired in the F. I. R. Muhammad Maluk had also confirmed his presence along with Noor Muhammad while they were chasing the appellant. It is, therefore, not possible to discard his evidence on the bare criticism that he was not found near the dead body when Noor Muhammad had returned along with Qamardin A.S.I. It frequently happens that villagers of nearby villages go to town to buy the necessities of life. This witness's visit was not an exception to it. If this witness had stated that he had purchased the cloth that day front the shop of a Muhammad had left the place of incident because he wanted to inform the relations of the deceased about his murder, the reason cannot be described as improbable and we are, therefore, not inclined to accept the criticism of the learned counsel for the appellant to this effect. This witness had no interest in the deceased; his name is also mentioned in the F.I.R. And we have found no inherent improbability in his evidence either. This witness had admitted having exchanged hot words with Muhammad, the brother of appellant Muhammad Hasan, but this cannot, in our view, be a reason of enmity against appellant Muhammad Hasan. This witness had, therefore, no reason to falsely implicate the appellants. We have, therefore, no hesitation in believing this witness as well. 15. As for Allahbachayo, it is true that he had not identified the appellants in the trial Court and that his statement before the committal Court was brought on record. We are, however, not inclined to accept the identification of the appellants by him, for there is no explanation as to the delay in
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holding the identification test. The appellants were arrested on 2nd March 1967 and the identification parade was held on 13th March 1967. Besides, there is indication in the evidence that the identifying witness had seen the appellants before the parade. Misbahuddin, a III Class Magistrate, in whose presence the test was held, had admitted in his statement that "if one enters the compound of Sub-Jail, Hala, he can see the prisoner inside the lock-up". The identification test was held in the Sub-Jail, Hala and the appellants were in the lock-up at that time. The impression that one has is that there could be a chance of the appellants being seen by the identifying witness before the parade while entering the compound of the Sub-Jail. In this context it may be recalled that the appellants were arrested on 2nd March 1967 and were in the police lockup. On the following day this witness was called at the police station where his statement was recorded. The probability of this witness seeing the appellants in the lock-up cannot be ruled out. Allahabachayo had also admitted in his evidence before the trial Court that he had seen the appellants at the police station the next day when he had gone to give his statement and on one other occasion before the identification test at the police station. No weight can, therefore, be attached to the identification of the appellants by this witness in the committal Court. As far as the actual occurrence is concerned, it is confirmed by the ocular evidence and we would accept his evidence to that extent. The trial Court relied on the committal Court's statement of this witness because he bad failed to identify the appellants at the trial; we have, however, attached no weight to that identification as well. There is, therefore, nothing to choose between the two statements, as in each of them this witness has stated about the actual occurrence. Nothing turns on the acceptance of the statement made by this witness in the committal Court and even if we were to prefer it to that made in the trial Court his evidence would not advance the case of the prosecution any further. It is, therefore, not necessary here to discuss the cases cited by Mr. Ghulam Nabi Memon on the question whether circumstances existed for preferring the statement of the committal Court to that of the trial Court as in our view this discussion is merely academic now as the case entirely hinges on the evidence of the other three eye-witnesses and the circumstantial evidence. 16. Muhammad Maluk, mounted constable, was attached to Police Station Sekhat. He had come to Hala town at about 9-15 a.m. By bus in search of one Khiali, an accused in Crime No. 3/67. His departure from police station Sakhat was noted in the diary of that police station. While he was coming from Muhajir Chowk towards the Dargah and was at the crossing of the road going towards the market that he saw the appellants being followed by Noor Muhammad and others. He bad then also joined the pursuit and followed the appellants up to Bacha Bund in Old Hala where he met Haji Rahimdad S. H. O. Who had also come there by then and from there he returned to Hala town and at the police station his statement was recorded. The criticism against his evidence was that his statement could not have been recorded at 11-30 a.m. That day as by that time he could not have returned from the chase of the appellants. The statement of this witness was recorded by Qamardin A. S. I. No question has been put to him at - what time be examined Muhammad Maluk, but from his evidence it appears that after recording the F. I. R. At 11 a.m. He must have taken 2 to 3 hours thereafter in the investigation at the spot and at the Civil Hospital before he returned to the police station. The time then must have been 1-0 or 1-30 p.m. When he had recorded the statement of Muhammad Maluk. It was, therefore, quite possible for him to have returned from Bacha Bund in Old Hala which was at a distance of about 4 miles. The time of 11-30 given by Muhammad Maluk must have been because of lapse of memory, for he was examined in Court after about a year and it is likely that he may not have remembered the actual time at which he came to the police station. 17. There is yet another criticism of his evidence. In his cross-examination he had admitted having said :-
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---It had stated before the police that the two accused present at the police station were running away.--- The suggestion of the learned counsel is that the story that he had chased the appellants was false as they were arrested from their houses and were at the police station when his statement was recorded. According to the learned counsel the word "present" in the above sentence gives this positive indication. We feel that this sense is not conveyed by the use of the word `present' for the words "running away" follow it. If the appellants had been arrested from their houses and this witness had not chased them, he would not have obviously used the words "running away". His statement was recorded by Qamardin A. S. I. And we feel that the…
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