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Petitioner: RANG ALI SHAH AND 5 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Agha Ali Haider, Syed Sajjad Ali Shah Title: RANG ALI SHAH AND 5 Others vs THE STATE Case No.: Criminal Appeal No. 78 and Confirmation Case No.. 19 of 1978 Date of Judgment:1979-02-27 Reported As: 1979 P Cr. L J 648 Result: Appeal dismissed
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J.-----Appellants named above have filed this appeal against the judgment dated 30-3-1978 of III Add]. Sessions Judge, Sukkur, whereby they have been convicted and sentenced as under:-- Appellant Rang Ali Shah- (1) Under section 302/149, P. P. C.Sentenced to death and a fine of Rs. 2,000 or in default R. I. for 6 months. (2) Under section 325/149, P. P. C.R I. for two years and a fine of Rs. 500 or in default to suffer, R.I. for one month more; (3) Under section 148, P. P. C.R. I. for three months: (4) Under section 148, P. P. C.R. I. for 15 days. Remaining five appellants- (1) Under section 302/149, P.P.C.Each to life imprisonment and a fine of Rs. 2,000 or in default R. I. for six months more. (2) Under section 325/149, P. P. C.Each to R. I. for two years and a fine of Rs. 500 or in default R.I. for one month more. (3) Under section 323/149, P. P. C.Each to R. I. for 5 days. (4) Under section 147.P. P, C.Each to R.I for three months. ' The learned trial Court has further directed that the sentence under section 325/3231149, P. P. C. Shall not be executed if sentence of death is confirmed. All the sentences will run concurrently. Half
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of the amount of fine if realised shall be paid to the heirs of the two deceased and the amount of fine under section 325; P. P. C. Shall be paid to injured Bachal Shah as compensation under section 544-A, Cr. P. C. The appellants have been convicted and sentenced as stated above for having committed double murder of Allah Diwayo Shah and Mahboob Shah and causing grievous hurt to P. W. Bachal Shah and simple hurt to P. W. Attaullah Shah with hatchet and lathis in furtherance of their common object having formed unlawful assembly. There is also reference before us under section -374, Cr. P. C. For confirmation of death sentence against appellant Rang Ali Shah and we propose to dispose of both the reference and the appeal by this common judgment. Brief prosecution story is that both parties who are inter-related, at the time of occurrence resided in village Pirzada, Taluka Ubamro, District Sukkur. The cause of dispute between them was that about 5 years prior to the incident Roshan Ali Shah, father of appellant, Dinan Shah and brother of appellant Jan Ali Shah, had suspected his wife Mst. Dilshad to be Kari with Nazir Ahmed Shah, who is nephew and son-in-law of deceased Allah Diwayo Shah. The dispute was settled by Pir Mazhar Ali Shah about two years prior to 'the incident and thereafter as per case of prosecution, the relations between the said two parties were cordial. The lady in question had died four or five years prior to the incident. Nazir Ahmed Shah, having been employed in WAPDA, mostly remained away from the village in connection with his official duties. On the day of incident, i.e. 1-4-1974 at 5-30 p.m. Complainant Attaullah Shah and P. W. Bachal Shah met the two deceased persons, namely Allah Diwayo Shah and his son Mahboob Ali Shah near Union, Council Office in village Pirzada. Deceased Allah Diwayo Shah was father-in-law and Mahboob. Ali Shah was brother-in-law of complainant Attaullah Shah: The above---named four persons started conversing with each other, and in the meantime they saw 6 appellants approaching. From them Rang Ali Shah was armed with hatchet and the remaining appellants had lathis. Appellants Rang Ali Shah and Jan Ali Shah told the two witnesses and the deceased persons that since they were not paying compensation for declaration of Nazir Ahmed Shah as `Karo', they would not be spared. After that the appellant opened attack. Rang Ali Shah inflicted hatchet injuries on Allah Diwayo Shah while other appellants attacked Mahboob Ali Shah and the other two witnesses. On the cries came to the spot Ghulam Haider Shah, Bahadur Kori and Yar Mohd. And intervened to save the complainant party. In the attack Allah Diwayo Shah, Mahboob Shah, Attaullah Shah and Bachal Shah sustained injuries. Appellants then made good their escape along with their weapons. After the departure of the appellants, Allah Diwayo Shah and Mahboob Shah were found lying on the ground in injured and uncon--scious condition. Complainant Attaullah Shah then removed injured Allah Diwayo Shah and Mahboob Shah in a bullock cart to Police Station, Ubauro at a distance of 8 miles, where they reached at 10-30 p .m. Complainant Attaullah Shah lodged F. I. R. Exh. 16. Mohammad Siddiq Abbasi S. H. O. Having registered F. I. R., prepared mashirnama of injuries Exh. 26 of Allah Diwayo Shah and Mahboob Shah and mashirnama of injuries Exh. 30 of complainant Attaullah Shah and referred all the three injured to hospital at Ghotki for examination and treatment. He then proceeded to the place of occurrence where he reached at 1-30 a.m. And waited till morning. On 2-4-1974 in the morning he inspected scene of offence, which was on a katcha track in village Pirzada on the pointing out of P. W. Bachal Shah. He secured blood-stained earth and sealed it. He recorded statement of P. W. Bachal Shah and after preparing mashirnama of his injuries Exh. 28 sent him to the hospital. On the same day he recorded statements of P. Ws. Bahadur Kori, Yar Mohammad and Ghulam Haider. He searched for the appellants in their houses but they were not found. On the same day he received information from the hospital that injured Allah Diwayo Shah and Mahboob Shah had expired. While continuing search for the appellants in Rangwani forest at about 5 p.m. On the same day, i.e. 2-4-74 he succeeded in arresting appellants Tajuddin Shah and Dinan Shah. He prepared such mashirnama
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Exh. " 29. While in custody, appellant Dinan Shah led to the recovery of his lathi from `lai' trees near protected bund in the forest. It had no blood marks. He seized that lathi. Appellant Tajuddin Shah, while in custody, also produced lathi from `lai' trees near protected bund and it had no blood marks. He secured the same. He brought both the appellants to the police station where Siraj, A. S. I. Of Ghotki Police Station handed over to him inquest reports of the dead bodies, prepared by him at the hospital. The S. H. O. Then modified the relevant section of offence in F. I. R. From 307 to 302, P. P. C. On 3-4-74 he arrested appellants Janan Shah and Suhno Shah on pacca road near Rangi Mazari village at 4 a.m. He brought them to the police station. On 8-4-74 he arrested appellant Rang Ali Shah from Rangwani forest. Appellant Rang Ali Shah while in custody led to the recovery of his hatchet from the hedge of the back of his house. The said hatchet had no blood marks on it. On 10-4-74 he went to Kashmore in search of appellant Mutabit Ali Shah but failed in his attempt. On 14-4-74 he got 164, Cr. P. C. Statements of witnesses Bachal Shah, Ghulam Haider Shah Bahadur and Yar Mohammad recorded. After completing other steps of the investigation he presented challan in the Court on 18-4-1974. Subsequently on 17-8-1975 appellant Mutabit Ali Shah was arrested by Ubauro Police Station. Prosecution has examined 9 witnesses in support of the case. P. W. 3 Attaullah Shah complainant, P. W. 4 Bachal Shah, P. W. 5 Ghulam Haider Shah and P. W. 7 Bahadur Kori have been examined as eye-witnesses of the incident, P. W. 2 Rasool Bux, tapedar has prepared sketch of vardat Exh. 14, P. W. 6 Dilawar Kori mashir who has attested inquest reports Exhs. 21 and 22. P. W. 8 Ghulam Yaseen Shah mashir has attested mashirnamas of injuries, arrears and recoveries Exhs. 26 to 33. P. W. 9 is S. I3. O. Mohammad Siddiq who has investigated the case. P. W. 1 Doctor Mahboob Ali Soomro had examined Mahboob Ali Shah and Allah Diwayo Shah on 1-4- 1974 at I1-20 p.m. At Taluka Hospital Ghotki. On examination he found the following injuries on their persons: 1.Mahboob Shah son of Allah Diwayo Shah :- (1)One lacerated wound about 1--- x ----- scalp deep on left temporal region. (2)There was bleeding from the left nostril. (3)There was bleeding from left ear. The injuries were caused by blunt and hard substance such as lathi. Probable duration of injuries was about 6 hours. Injured was admitted as indoor patient and died on 12-40 p.m. On 2nd April, 1974. 2. Allah Diwayo Shah son of Saleh Muhammad Shah- (1) An incised wound about 8--- x 1" x bone deep starting from left temporal region and extending up to left occipital region. (2) There was swelling about 5--- in diameter with a fracture deformity on front of middle of left upper arm. (3) The index finger, middle finger, ring finger and little finger of left hand were cut by sharp weapon at metacarpo phalyngeal joint. (4) A lacerated wound about 5" x 1/3" x skin deep on right left in its upper half. Injuries Nos. 1, 2 and '3 were grievous. Injury No. .l was simple. Injuries Nos. 1 and 2 were caused by sharp-cutting weapon such as hatchet and injuries Nos. 2 and 4 were caused by blunt and hard substance such as lathi. The injured was admitted as indoor patient and died on 2-4-1974 at 7-20 a.m. The same doctor conducted post-mortem examination on the dead body of Mahboob Shah on 2- 4-1974 and on internal examination he found the following :- (1) Under the scalp there was congestion on left side and there was also congestion of left temporal muscle. There was depressed fracture of left temporal bone. The membrance of the brain
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congested. The blood clots were present and left anterior cranial fosse and mid cranial fosse on left sides. The brain was congested. Stomach was healthy and empty. In his opinion from the external as well as internal examination of deceased Mahboob Shah, the death was due to shock and haemorrhage resulting from the injury and bleeding from the skull by injury No. 1. The injury was ante-mortem and was sufficient to cause death in the ordinary course of life. The probable duration between injury and death was seven hours and between death and post-mortem won 12 hours. The same doctor conducted post-mortem examination on the dead body of Allah Diwayo Shah on 2-4-1974 at 1-30 a.m. And on internal examination he found the following: (1) Under scalp there was bleeding in the left temporal muscle. The left temporal and occipital and parietal bones were cut. The mem--brane of the brain war cut. The cranial cavity was containing clots of blood on left side. Temporal and occipital lobes of cerebral hemisphere were cut on left side. The stomach was containing digested thick paste and healthy. Under injury No. 2, there was fracture of left humerous. From the external as well as internal examination on the dead body of deceased Allah Diwayo Shah he was of the opinion that the death was, due to shock and intracranial haemorrhage by injury No. 1, which was caused by sharp and cutting weapon, such as hatchet. The probable duration between injuries and death was about 14 hours and between death and post-mortem is about 6 hours. On the external examination of the dead bodies the doctor found the same injuries which were found by him on examination when the deceased persons were alive, as stated above. This doctor also examined injured P. W. Bachal Shah on 2-4-74 and found the following injuries :- (1) A lacerated wound ----- x ----- x scalp deep on right occipital region. (2) A contusion about 5" x 1" on left side of chest in its back at the lower half. (3) A contusion about 6" x 1" on left side of chest in the back at its lower half. (4) A contusion about 3" x 1" on right side of chest in its back at its lower end. (5) A contusion about 4" x 1" on the left side of chest in the back at its upper half. (6) A contusion about 4--- x 1" in the back of left upper arm. (7)A contusion about 4--- x 1" on outer side of left shoulder joint. (8)An abrasion about ----- x 1/5" at the base of left ring finger. (9)An abrasion about ----- in diameter on the back of right middle finger at its proximal phalynx. (10) A contusion about 3" x 1" on outer side of right shoulder. X-Ray chest was showing fracture 9th rib on left side. The nature of injuries were grievous in nature under injury Nos. 2 and 3 by blunt and hard substance as lathi. The probable duration was 19 hours. The injured remained as indoor patient for about 10 days. This doctor also examined injured complainant Attaullah Shah on 2-4-74 at 1-30 p.m. And found the following injuries on his person:- (1) A contusion about 1--- diameter of an outer border of right forearm in its lower third. (2) A lacerated wound about 3/4" x 1/6" x skin deep on outer border of right little finger. The nature of injuries were simple. The all injuries were caused by blunt and hard substance such as lathi. Probable duration of injuries were about 20 hours. The injured was kept as O. P. D. Patient. The defence of the appellants before the trial Court in their statements under section 342, Cr. P. C. Was total denial of prosecution allegations and false implication due to enmity. Appellant Muhabit Ali Shah further stated that he rived far away from the place of incident and coming to know of the case he surrendered before the Police. The appellants declined to lead any defence. We have examined the record of the case very carefully in the light of arguments and submissions made by the learned counsel appearing for each side. The pivotal evidence in the case of prosecution is ocular testimony oh 4 witnesses. It may be mentioned here at very outset that out of the 4 eye-witnesses three, namely Attaullah Shah, Bachal Shah and Ghulam Haider Shah are
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related inter se and are related to the deceased persons. Deceased Allah Diwayo Shah and Mahboob Shah were father and son respectively. Complainant Attaullah Shah is son-in-law of deceased Allah Diwayo Shah and brother-in-law of deceased Mehoob Ali Shah. Bachal Shah is cousin of Attaullah Shah and P. W. Ghulam Haider Shah is uncle of Attaullah Shah complainant. Andal Shah son of P. W. Ghulam Haider Shah is married to the daughter of deceased Allah Diwayo Shah. Since these three witnesses are closely related to the deceased persons, their evidence is to be appraised with due care and caution. Out of these three eye--witnesses mentioned above, two of them, namely Attaullah Shah complainant and Bachal Shah sustained injuries during the incident and further their injuries are medically proved as such their presence at the spot as natural witnesses in indisputable. P. W. Ghulam Haider Shah at the time of incident was in his otak, which was at a distance of 70 paces from the place of occurrence. P. W. Ghulam Haider has deposed before the trial Court that in between his otak and the place of occurrence there were only two houses. P. W. Rosool Bxx Tapedar who has prepared sketch of vardat Exh. 14, has deposed before the trial Court that nearest house of village Pirzada was two hundred feet away from point 'A' where attack was made. First house was that of Qadir Bux, Kumbhar and adjacent to that house were houses of other persons. Tapedar has further testified that between point A and the houses of the village there was open space and point A was visible to the persons in the first 3-4 houses of the village without any interruption. The Tapedar has further categorically stated in his deposition before the trial Court that the cries at the spot could attract attention of persons present in the Union Council Office and also some houses of the village. It is therefore, beyond question that P. W. Ghulam Haider Shah is a natural witness and could be attracted to the spot on the cries to see the incident. Likewise P. W. 7 Bahadur Kori is also resident of the village and was attracted to the spot on the cries. Complainant Attaullah Shah has testified before the trial. Court that the house of P. W. Bahadur was at a distance of about one furlong from the scene of offence. He is not related to the complainant or the deceased persons. He belongs to a different caste of `Kori' while the complainant party are Syeds. The names of Ghulam Haider Shah and Bahadur Kori are mentioned in F. I. R. As eye-witnesses, which was lodged by complainant Attaullah Shah on the same day of incident at 10-30 p.m. The distance between the spot and the police station was 6 miles. The fact also cannot be lost sight that Allah Diwayo Shah and Mahboob Shah were seriously injured and were unconscious and were removed from the spot by the complainant and the eye-witnesses to the otak of the com--plainant, where some time was consumed in arranging for a bullock--cart and afterwards the said two injured were carried in the bullock--cart to the police station. In such circumstances it is natural that bullock--cart carrying the two injured persons, who were in precarious condition, would be driven slowly and carefully in order .Not to aggravate the critical condition of the injured persons. Under these circumstances, registration of F. I. R. At police station at the time stated above cannot be said to be made with delay. Police statements of eye- witnesses Ghulam Haider Shah and Bahadur Kori were recorded by the police officers at the spot on the following morning of the incident. The evidence of these witnesses has been criticised by the learned Advocate appearing for the appellant, so far the facts of the incident are concerned they are very simple in the sense that appellant Rang Ali Shah was armed with hatchet, who inflicted injuries on deceased Allah Diwayo Shah with sharp side of the hatchet and. The remaining appellants were armed with lathis and they inflicted lathi bows on both deceased persons and witnesses Attaullah Shah and Bachal Shah. This version is consistently testified by all the eye-witnesses and there are no material discrepancies in that context. Complainant Attaullah Shah was a teacher in school at Ubauro and P. W. Bachal Shah was Headmaster in village Pirzada and both at the time of incident had come from Ubauro. Since both these eye-witnesses are injured in the same incident, it would be futile to go into the details as to how both these witnesses met and came to the spot, although both have given satisfactory
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explanation. Evidence of Attaullah Shah complainant is assailed on the ground that he has not mentioned in F. I. R. That after the incident deceased Allah Diwayo Shah and Mahboob Shah, while they were still alive and unconscious in injured condition, were first removed to the otak of the complainant and then brought to the police station in a bullock-cart. It is correct that removal of injured Allah Diwayo Shah and Mahboob Shah to the otak of the complainant is not mentioned in F. I. R. But it is stated therein that they were brought in the bullock to the police station. This omission is not at all material so far the facts of the incident are concerned. It is neither necessary nor natural to give all the minute details in F. I. R. Complainant himself was injured and three other persons were injured in the incident, out of whom two were very seriously injured and were in unconscious condition, who were brought by hire to the police station and who subsequently died in the hospital. In such circumstances the omission stated above, which is not on a relevant particular of the incident is innocuous. Complainant has fully explained in his deposition before the trial Court and this fact of removal of these two injured persons is further fully supported by the remaining eye-witnesses before the trial Court. An attempt was made to show enmity of complainant with appellant Rang Ali Shah and in that context complainant has explained before the trial Court that he owned land in Deh Mardanwall, which consisted of Survey Nos. 9 and 10. Half of the Survey No. 10 belonged to appellant Rana Ali Shah, Muhabit Ali Shah and one Jurial Shah. Com--plainant denied a further suggestion that he did not give share to appellants Rang Ali Shah and Mutabit Ali Shah from Survey No. 10. He has also denied that there was any litigation between him and the appellants mentioned above over matrimonial affairs. He has also denied that Survey Nos. 9 and 10 mentioned above were being cultivated by Bahadur Kori on his hari. P. W. Bahadur Kori has also denied the suggestion of the defence that he was hari of complainant Attaullah Shah and was cultivating Survey Nos. 9 and 10 Having, failed in the attempt to show enmity between the parties on the lines stated above the defence suggested to com--plainant Attaullah Shah and other eye-witnesses that they were not present at the spot and found Allah Diwayo Shah and Mahboob Shah lying injured and thereafter went to the otak of Rang Ali Shah suspecting the appellants to have caused injuries and at the otak of Rang Ali Shah the witnesses were confronted with Mureeds of Rang Ali Shah, with, whom the witnesses exchanged hot words and then they were attacked by the Mureeds of Rang Ali Shah. This suggestion is flatly denied by the two injured eye- witnesses Bachal Shah and complainant Attaullah Shah. It is admitted by these witnesses that both parties have mureeds but they did not live in their village. It is impossible to believe that the injuries would be caused to as many as four persons, in the result whereof two of them died and the complainant party would allow the real culprits to go scot-free and would involve the appellant wrongly and maliciously when there is no enmity between them. The evidence of the prosecution was assailed by the defence on the ground that the injured persons were sent to Ghotki hospital which was about 30 miles from Police Station, Ubauro although there was a hospital in Ubauro and there was also a hospital . In Mirpur Mathelo, which is nearer from Ubauro then Ghotki. On this premise argument was advanced that this was done on purpose to manipulate the case against the appellants by obtaining favourable findings from the doctor of Ghotki hospital which was so far away. We find there is absolutely no truth in allegation and it is explained by P. W. Bachal Shah that they were informed by the Investi--gating Officer that doctor of Ubauro hospital was on leave as such they were being referred to the hospital at the Ghotki. Very deftly do clarification was sought from P. W. 9 Mohammad Siddik S. H. O. And Doctor Mahboob Ali of Ghotki hospital on this point when they were being examined before the trial Court, but this stands amply clarified and satisfactorily explained by P. W. Bachal Shah. It was next argued that injured P. Ws. Attaullah Shah and Bachal Shah were not examined by the doctor at Ghotki Hospital on the same night when Allah Diwayo Shah and Mahboob Shah were examined for their injuries and both Attaullah Shah and Bachal Shah were examined at the same
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hospital on the following day at 1-30 p.m. Hence an inference can be drawn that both these witnesses were consulting each other and collaborating to falsely implicate the appellants. The perusal of the record shows that injured witnesses Bachal Shah did not accompany the other two injured Allah Diwayo Shah and. Mahboob Shah in the bullock cart to the hospital with complainant. Complainant Attaullah Shah was explained that he was waiting at the police station for injured P. W. Bachal Shah to come, Bachal Shah came to the police station in the morning and then both went together to the hospital at Ghotki. He has also stated that since Allah Diwayo Shah and Mahboob Shah were badly injured and were in critical condition they were rushed to the hospital. Bachal Shah has further explained in his deposition before the trial Court that immediately after the incident Allah Diwayo Shah and Mahboob Shah were removed by the complainant to his otak and he (Bachal Shah) went away to his house to console his children who were weeping and were very much concerned on his injured condition. After consoling his children when he came back to the otak of complainant, he learnt that Allah Diwayo Shah and Mahboob Shah injured were taken away by the complainant in bullock cart to Police Station, Ubauro. He has further stated that Police came to the spot at night and he was asked by the Investigating Officer to go to the hospital for examination of his injuries but he declined to go there at night time. In the morning he went on jeep to the police station and from there accompanied the complainant to the hospital. Bachal Shah has further explained that in spite of injuries on his person he was able to move about. In view of explanation given by P. W. Bachal Shah that of his own accord he did not like to go to the hospital at night time and went there in the morning, we cannot draw any adverse inference. It would be out of place to mention that complainant Attaullah Shah had sustained only two injuries, one on the right forearm and others on the…
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