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Petitioner: ABDUL KADIR AND 15 Other VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): G.M Shah, Agha Ali Haider Title: ABDUL KADIR AND 15 Other vs THE STATE Case No.: Criminal Appeal No. 164 of 1974 Date of Judgment:1977-10-09 Reported As: PLD 1978 Karachi 543 Result: Order accordingly
JUDGMENT
JUDGMENT G. M. SHAH, J.-The appellants were tried by the learned 1st Additional Sessions Judge, Larkana for offences under sections 148, 302/ 149, 326, 324 and 323 read with section 149, P. P. C. For having committed the murder of deceased Ahmed and Mitho and also voluntarily causing injuries to witnesses Bakhat A.I, Khan Mohammad Shabbir and Sanjar. By the judgment dated 31st May 1974, the learned Judge was pleased to convict them all and sen--tenced them as under (i) Each of the appellant was convicted under section 148, P. P. C. And sentenced to suffer R. I. For one year. (ii) Each of the appellant was convicted under section 302, read with section 149, P. P. C. And sentenced to suffer imprisonment for life and. Also to pay a fine of Rs. 500 in default to suffer further R. t. For one year. (iii) Each of the appellant was convicted under sections 324, 323 read with section 149, P. P. C. And sentenced to suffer R. I. For one year. (iv) Each of the appellant was convicted under section 326 read with section 149, P. P. C. And sentenced to suffer R. I. For two years and to pay a fine of Rs. 500 in default to suffer further R. I. For one year. All the sentences were directed to run concurrently. The appellants have preferred the appeal against the said judgment of conviction. 2. The prosecution case, briefly is, that on 2-8-1972 at about noon time, deceased Mitho and appellant Idrees were grazing their goats in the jungle. Idrees left for his house for taking lunch and requested deceased Mitho to look after his goats. In absence of Idrees, a jackal attacked one of the goats ; but the dog of deceased Mitho chased the jackal and got the goat freed. The goat was
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injured and was taken by Mitho to his house, where his father Ahmad and complainant A.I were sitting together and talking. Deceased Mitho narrated the facts to them. His father Ahmad took the injured sheep to appellant Rahimdino, father of Idrees and narrated to him the whole story, but they did not believe it and blamed deceased Ahmad and Mith for leaving the sheep to be attacked and injured by their dog. Deceased Ahmad explained his position to Rahimdino on oath, but it did not satisfy him, and Rahimdino threatened to take the revenge. Apprehending trouble, Ahmad, accompanied by complainant A.I, Khan Mohammad, Bakht A.I, Sanjar and Mitho went to the "Nek Mard" of both the parties, P. W. Ghulam Umar and narrated the facts to him and requested him to intervene and settle the dispute. Ghulam Umar promised to do so, by calling both the parties. As soon as the party of the complainant left Ghulam Umar and had hardly covered a distance of about 30 paces, when all the appellants came out from the bushes and after challeng--ing, attacked them. In the open ground near the house of Liaquat A.I. It was a sunset time. The complainant went to the nearby house of Liquat A.I and brought the Holy Qur'an and entreated with the appellants to spare them. After causing injuries to deceased Ahmad, Mitho, Bakhat A.I, Khan Mohammad, Shabbir and Sanjar, all the appellants went away. Ahmad died on the way, whereas Mitho died later on in the Hospital. Complainant A.I (P. W. 4) proceeded to Warah Police Station and lodged the report at 10 p.m. On the same day. The report (Exh. 10) lodged by the complainant reads as under "That Rahimdino and Ahmad Marfani have separate herd of goat. Idrees is grazing the herd of Rahimdino and Mitho is grazing the herd of Ahmad. Three days back at 'Bepehari' time I and my brother Ahmad were sitting in house, when Mitho brought an injured sheep. On enquiry he told "I and Idrees were grazing goat together near the houses. Idrees went home, so doing, a jackal arrived there and was taking away a sheep from the herd of Idrees, my dogs have released the sheep and I have brought the same." Thereafter my brother Ahmed took that sheep and went to the houses of Rahimdino and others in order to deliver it to them. They took the sheep from him and told "Your dogs have rended the sheep so, you should, compensate, "This evening at Tepehri time (1) Ahmed and his sons namely Mitho and Khano, (2) Bakhto, (3) Shabir and Ahmed's cousin Sanjar went together to complain with Rais Ghulam Umar that Rahimdino and others want to fight with us over the sheep matter, and that he should settle the matter between' us. He told us that he will call thom and will settle the matter tomorrow. We were returning to our houses at sun set time and when we reached at the open ground near the house of Liaquat A.I, that namely (1) Rahim Dino son of Mazari, (2) Khamiso, (3) Idrees, (4) Rahmatullah, (5) Bakhar all four sons of Rahim Dino, (6) Miandino son of Beero, (7) Fakeero, (8) Abdul Qadir both sons of Miandino, (9) A.I Nawaz son of Talib, (10) Sobho son of Walhari, (t1) Wahid Bux, (12) Muhammad Bux both sons of Bachal, (13) Muhub A.I son of Abdul Qadir, (14) Adial, (15) Ladhi both sons of Khudadino, and (16) Khudadino son of Sobho, all by case Marfani Chandio Taluka Warah, came there. Out of them Wahid Bux was armed with his licensed gun and the others were armed with hatchets. On seeing us coming they all attacked,-abused and told, "You have not compensated for the sheep. Be brave and we will take revenge". After saying so Wahid Bux opened fires in air with his gun and other aforesaid accused persons gave sharp sided hatchet blows to namely :-Ahmed, Mitho--Khano, Bakhto, Shabir and Sanjar, on head and other parts of the body. On receiving grievous hatchet injuries they fell down. There--after I went running and brought Qur'an Shareef from the house of Liaquat A.I and asked the aforesaid accused in its Holy name not to kill the men. Thereafter accused persons alongwith gun and hatchets went to their houses. Thereafter upon cries and commotion namely, Sanwli son of Taj Mohammad, (2) Salih son of Elahi Bux, (3) Mohammad Hasan son of Taj Mohammad and other villagers also came there. We told the above facts to them and they saw the injuries of aforesaid injured. Thereafter I, Sanwli, Salih and Mohammad Hasan took the injured persons namely, Ahmed, Mitho and Bakhto on bullock carts and were coming to Warah. When we reached
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near the village of Qasim Cholyan where Ahmed died. We put his corpse there and left Salih and Mohammad Hasan at the corpse. We directly brought injured Bakhto and Mitho to Warah hospital, where injured Mitho also died in Warah hospital, his corpse is lying in Warh hospital. Injured Bakhto is also in the hospital and the remaining injured persons namely Sanjan, Khanoo and Shabir are at the scene of offence. The aforesaid accused persons armed with deadly weapons with intention, in order to take revenge of the sheep matter, have murdered Mitho and Ahmed while inflicting hatchet blows and have injured the others. I lodge complaint, investigation be made. Accused persons have also received injuries during fight, I don't know, who hit whom." 3. After about 20 minutes, a counter report (Exh. 43) of the same occurrence, was lodged by appellant Rahimdino, which is in the following words :- "That day, before yesterday, my sheep disappeared while grazing, I suspected Liaquat A.I Ahmed for the same. I asked Ahmed to return my sheep, upon this he replied that he do not know about it. I com--plained about it to Rais Ghulam Umar. Today at about noon time Ghulam Umar told me that he will decide our matter today, in the evening. At about `Tepehri' time I alongwith my sons namely (1) Khabar, (2) Rehmatullah, (3) son-in-law A.I Nawaz, (4) grand son Adial, (5) Walhari, and (6) Abdul Qadir went to the land of Ghulam Umar for attending decision. Ghulam Umar himself was present there. Out of other party (1) Ahmed, (2) A.I, (3) Saleh all three sons of Illahi Bux, (4) Khanoo, (5) Bakhto. (6) Shabir, (7) Mitho all the four sons of ,Ahmed, (8) Sanjjar son of leand. (9) Gambo, (10) Jeand both sons of Sajar, (11) Liaquat A.I, (12) Hasan both sons of Gul Hasan all by case Marfani-Chandios also came there, where Shabir had brought my sheep. This sheep had dog biting marks on the tail and ears. They said that they had not stolen the sheep. They further said that the sheep was being eaten by a jackal, and that they have rescued the same. Ghulam Umar told Ahmed and others they were thieves and that they should gives Rs 60 to Rahim Dino as fine. They promised to pay the same within 15 days. I refused saying that I will not leave money for so many days. Ahmed and others did not accept the decision and all of us got up from there. Ahmed and others took the sheep with themselves, when we reached near the land of Ghulam Umar at about sun set time, accused persons namely (1) Ahmed, (2) Khanoo, (3) Bakhto, (4) Shabir, (5) Mitho, (6) Sanjar, (7) Gambo, (8) A.I, (9) Liaquat A.I, (t0) Hasan, (11) Jeand, (12) Saleh all armed with hatchets, A.I instigated them as to capture us and not to spare. Upon this all the aforesaid accused persons attacked us together. They gave sharp-sided hatchet blows to Bakhar, Rehmatullah, A.I Nawaz, Adial and Abdul Qadir, and we also gave them hatchet blows in defence. Thereafter respectable man Ghulam Umar intervened and averted the quarrel. Thereafter I asked Walhari to bring the injured persons to the police station as I was coming towards police station. The aforesaid accused persons armed with deadly weapons while forming an unlawful assembly, have given us the sharp-sided hatchet blow due to aforesaid enmity. I lodge complaint, investigation be made." The S. H. O. Abdul Razzak (P. W. 12) after recording the two F. I. R.s. Registered, two counter-cases and commenced the investigation. He arrested Rahimdino, Bakhar, Rehmatullah, Abdul Qadir, A.I Nawaz and Adial, who had also reached at the police station. Since the P. Ws. Bakht A.I, Khan Mohammad, Shabbir and Sanjar had injuries on their person, as well as, the appellants, Rehmatullah, Adial, Bakhar, A.I Nawaz, and Abdul Qadir, who were also injured, they all were referred to the Medical Officer, Warah, for treatment and certificate. At the place of occurrence, the S. H. O. Found the dead body of Ahmed. Since it was late in the night, the S. H. O. Left police constable Bashir Ahmed, at the wardat to look after the dead body of Ahmed and the returned to the police station. On the following day of S. H. O. Prepared the mashirnama of the wardat (Exh. 34) and also of the place, where the dead body of deceased Ahmed was lying (Exh. 35). The va, dat was in the land near village Ghulam Akbar. There were blood stains at various places, which were secured
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from two or three places by the police. The dead body of Ahmed was sent to the doctor for post- mortem examination. He had also secured blood-stained clothes from the person of appellant Bakhar, Adial, Abdul Qadir. A.I Nawaz and Rahmatullah under the mashirnama Exh. 37 dated 2-8- 1972. Bakhar was wearing the blood-stained loin-cloth, shirt and a under shirt. Adial was wearing blood-stained loin-cloth. Both, Abdul Qadir and A.I Nawaz were wearing blood-stained shirts. Rahmatullah was wearing blood-stained shirt and under-shirt. All the blood-stained clothes were secured and seized and were finally sent to the Chemical Analyser for examination and report. On 3-8-1972 the appellants Bakhar, Rahmatullah, A.I Nawaz and Adial volunteered to produce blood- stained hatchets from their respective houses, in presence of the mashirs. They were secured and seized under the mashirnamas Exhs. 29, 30, 31 and 32. In the meantime, report of the death of Mitho was received by the S. H. O., who went to Warah and prepared the injury and inquest report. The S. H. O. Also recorded statements of accused Miandino, Fakir Muhammad, wahid Bux, Muhammad A.I and Idrees and arrested them on 6-8-1972. After completing the investigation, both the cases were challaned in the Court. .The Chemical Analyser's report, in the meantime, was also received, by the police, certifying that the hatchets and clothes, so secured and seized, were stained with human blood (Exh. 45). 4. The case of the appellants was of denial. They bad led no defence, and pleaded enemity with the complainant and other prosecution witnesses. They had denied having caused injuries either to the two deceased, Ahmed and Mitho or to any one else. Appellant Rahmatullah, had produced true copies of the depositions of some witnesses, as well as, documents of some other cases, proving enmity with the complainant and the witnesses. 5. The death of the deceased Ahmed and Mitho and the injuries on the person of the prosecution witnesses Bakht A.I, Sanjar, Khan Mohammadand Shabbir are not denied. Admittedly, the two deceased had died a violent and unnatural death, as a result of the injuries received by them. 6. In this respect, there is evidence of complainant A.I (P. W. 4) as well as, injured eye-witness Bakht A.I (P. W. 5), Sanjar (P. W. 6), Khan Mohammad (P. W. 7) Shabbir (P. W. 8) and also of other eye- witnesses Sanwal (P. W. 9) and Ghulam Umar (P. W. 11). 7. Dr. A.I Khan had conducted the autopsy on 3-8-1972 on the dead bodies of Ahmed and Mitho sand he had also examined the 'above-named injured witnesses. On external examination of the dead body of Ahmed, the doctor found the following injuries :- (1) An incised wound 7'' x 1/2 --- x 3' on the left side, top and back of skull. The fracture of skull bone and bleeding present. The brain matter in visible. (2) An incised wound 2" x -- " x 1" on the front of right thigh. (3) The injuries were anti-mortem and appeared to have been caused by a sharp cutting weapon such as a hatchet. On internal examination, the doctor found as follows :- Fracture of skull bone, on the left side, top and back of skull. Brain membranes were cut. Bleeding was present. Stomach contained some liquid digested food. Small intestines contained little digested food. Large intestines contained stools. All other organs were normal. From the external, as well as, internal examination of the dead body, the doctor was of the opinion that the cause of death was injury to the skull, by sharp cutting weapon, leading to the fracture of skull bone, severe hamor--rhage and shock. Injury No. 1 was individually sufficient in the ordinary course of nature to cause death. The time that elapsed between injuries and death was about J hour to 2 hours, and between death and post-mortem was about 21 hours. 8. As a result of the autopsy on the dead body of Mitho, the doctor found on the basis of the external examination, the following injuries :- (1) An incised wound 2 --"x -- " x 1 -- " on the left side of front of skull. Fracture of skull bone was present.
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(2) An incised wound 2 -- " x 1" x 2" on the back of lower part of chest. Fracture of a rib was present. (3) An incised wound 2" x 1" x 2 -- " on the back of left side of upper part of abdomen. All the injuries were anti-mortem and appeared to have been caused by a sharp-cutting weapon such as a hatchet. On the internal examination the doctor found the following in--juries :- Fracture of skull bone was present. Thorax-- (1) Walls, ribs and cartilages :- Fracture of a rib on the side of chest present. Left side of chest cavity contained much blood. Pleurae.--Left side of pleurae was congested and left lower part lace--rated. Left lung.-Congested. Lower part lacerated. Blood Vessels.-There was injury on the left side. Abdomen- Walls.-Injury on the back of left side of upper side of upper part of abodmen. Stomach and its contents.-Stomach contained little liquid digested food. From the external and internal examination, the doctor was of the opinion that the cause of death was injury to the chest leading to the injury to the left lung, haemorrhage and shock. Injury No. 2 was individually sufficient in the ordinary course of nature to cause death. The probable time that elapsed between injury and death was about 3 hours and between death and post--mortem was about 19 hours. Before this, the same doctor had also on 2-8-1972 examined the injured prosecution witness Bakht A.I son Ahmad Marfani Chandio and found the following injury on his person :- (() A lacerated wound 1 -- " x1/3" x1/3 " on the right side of front of skull. (2) An incised wound 4" x2" x 1" on the front and lateral. (3) Incised wound 1" x -- " x 1/8" on .The back of left shoulder joint. Injuries Nos. 2 and 3 appeared to have been caused by a sharp-edged weapon like a hatchet whereas injury No. 1 appeared to have been caused by a blunt object such as a lathi. All the injuries were certified to be simple in nature, and were about 4 hours old. 9. On 3-8-1972 the doctor also examined P. Ws. Khan Mohammad son of Ahmed, Shabir son of Ahmed and Sanjar son of Jero and found the following injuries :- Khan Mohammad- (I) An incised wound 7 -- " x 2 -- " x 2 -- " on the front and the medial side of right thigh. (2) An incised wound 1 -- " x -- " x -- "on the medial side of left knee joint. (3) An incised wound 1 -- " x --" x -- on the back of right side of chest. (4) An incised wound 4" X 1 i" 9 1 t" on the back of middle part of abdomen. (5) An incised wound f x f X I' on the lateral side of left thigh. Shabir- (1) An incised wound 2" X 1" x J" on the back of upper part of right side of chest. (2) An incised wound 2J" X IJ X J' on the back of middle part of right side of chest. (3) A lacerated wound 2" x 1/8" on the left side of top of skull. (4) An abrasion 1" X 1/8' on the back of right side of chest. Sanjar- (1) An incised wound 2" x 1/8" X J" on the middle part of fore--head. (2) An incised wound 31' a I' x 1" on the back of right forearm. (3) An incised wound 2" s I x J' on the medial side and back of right forearm. (4) A incised wound 2" x I" x 1/8" on the medial side of left hand and left little finger. (5) An incised wound 3i" x 1f on the medial side and back of left fore--arm with left wrist-joint. (6) An incised wound 31" x I' x 1' on the back of right shoulder joint.
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10. On the same day (3-8-1972) the doctor also examined appellants Rahmatullah son of Raimdino, Adial son of Khudadino, Bakhar son of Rahimdino, A.I Nawaz son of Talib and Abdul Qadir son of Mian Bux. They had the following injuries on their person :- Rahmatullah- (1) Aninsiced would 4" x 11" x If on the lateral side and front of left upper arm near left shoulder joint. The injury was about 18 hours old and appeared to have been caused by sharp-cutting weapon and on screening an oblique fracture of upper half of left humerus was found and as such it was grievous in nature. AdIal- An incised wound 4f x 1 f' x 1f on the front and medial side of right wrist joint and right hand. The injury appeared to have been caused by sharp cutting weapon and no fracture was found on screening and as such it was simple in nature. The injury was about 18 hours old. Bakhar- An incised wound 1 I" $. J" on the back of right side of chest. The injury was about 18 hours old and appeared to have been caused by sharp-cutting weapon such as hatchet and was simple in nature. A.I Nawaz- An incised wound 2" x 3/4' x J" on the front of upper part of left side of chest. The injury was about 18 hours old and appeared to have been caused by sharp cutting weapon and was simple in nature. Abdul Qadir- (1) An incised wound 1' X k X 1/8' on the back and medial side of right hand. (2) An abrasion 2f s J" on the lateral side of right upper arm. The injuries were about 18 hours old and appeared to have been caused by sharp cutting weapon and were simple in nature. The eye-witness account was furnished by the complainant A.I (P. W. 4) and eye-witnesses Bakht A.I (P. W. 5), Sanjar (P. W. 6), Khan Mohammad (P. W. 7), Shabir (P. W. 8) and Ghulam Umar (P. W. II). 11. The deceased Mitho was son of deceased Ahmed, who was brother of complainant A.I. P. Ws. Bakht A.I, Khan Mohammad and Shabir are brothers inter .Se and are sons of deceased Ahmed. Sanjar is cousin of deceased Ahmed. Whereas Ghulam Umar is the `nekmard' of both, the party of the complainant, as well as, the appellants. 12. The incident, basically, is not denied, but the parties have given different versions to suit their respective pleas. The case of the prosecution, as put forth by the eye-witnesses is unanimous. Ahmed deceased had a herd of goats, which was grazed by his son Mitho deceased. Appellant Rahimdino also owns goats and sheep which were grazed by his son appellant Idrees. 13. On the day of occurrence, deceased Mitho had gone to graze his goats in the jungle. At noon time, appellant Idrees had left for taking meals at his house and had requested deceased Mitho to look after his herd of goats and sheep. After Idrees left for his house, a jackal had attacked the herd of sheep of ldrees and caught hold of one of the sheep. Deceased Mitho ran after and set his dogs after the jackal, in order to rescue the sheep, which the dogs succeeded; but the sheep was badly injured. Mitho took the sheep and brought it to his house, where his father, deceased Ahmed and the complainant A.I were present. Mitho asked his father to go and graze the goats, as that he could take the sheep to Idrees and explain the whole thing; but his father Ahmed told him that he himself would take the sheep to Rahimidno, father of ldrees and would explain to them the situation. Mitho, therefore, returned to look after the goats and Ahmed took the sheep to Appellant Rahimdino and his son ldrees. When deceased Ahmed explained to Rahimdino the whole position, he (Rahimdino) did not believe his story and accused him that their dogs had injured the sheep.
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He, therefore, claimed another sheep from their herd. Apprehending attack from the side of Rahimdino, the party of Ahmed approached their `nekmard' Ghulam Umar (P. W. 11) on the evening of the day of occurrence, who assured them that he would send for Rahimdino and his party on the following day, and would explain to them and pacify them. When Ahmed and his party men, consisting of the complainant A.I, Mitho (deceased), Bakht A.I (injured), Khan Muhammad (injured), Shabir (injured) and Sanjar (injured) had left Ghulam Umar and had hardly covered 38 paces by foot from the village, when all the appellants appeared from the bushes and challenged them that they would take revenge. Wahid Bux was armed with a gun and rest of the appellants had hatchets in their hands. Wahid Bux fired gunshots in the air, and others attacked the party of Ahmed. It is significant to note that Ahmed and his sons Mitho, Bakht A.I, Khan Muhammad and Shabir, as well as, Sanjar, cousin of- Ahmed were the specific target. Ahmed was hit with the right side of the hatchet on the head, causing the fracture of the skull bone, which injury was individually sufficient, in the ordinary course of nature, to cause death. He fell down unconscious, and died on the way to the hospital. After receipt of the injury, he could not have caused any injury to any of the appellants. His son Mitho was also given three sharp side hatchet blows on the head, which caused the fracture of the skull bone. He had also received incised wounds at the back side, causing the fracture of a rib. He fell down unconscious and died in the Hospital, the next day (3-8-1972). The other sons of Ahmed namely Bakht A.I, Khan Muhammad and Shabir were also caused injuries with the sharp side of the hatchets, which were certified to be simple, as there was no fracture of any of the bones. Whereas, Sanjar* cousin of the deceased Ahmed, had received 6 incised wounds caused by the sharp side of a hatchet, one of them being injury No. 3 which was grievous in nature, while ail other injuries were simple, as no fracture of any of the bones was detected. 14. Looking at the injuries sustained by the appellants Rahmatullah, Adial, Bakhar, A.I Nawaz and Abdul Qadir, it gives an indication that they had received comparatively less injuries, not of much significance and not on vital parts of the body. Rahmatullah had received only one incised wound on the lateral side and front of left upper arm; near the left shoulder joint. The injury appeared to have been caused by a sharp--edged weapon, like a hatchet. Because there was a fracture of upper half of left humerus, therefore, the injury was grievous in nature. Appellant Adial had also received only one incised wound on the front and medial side of right wrist and right hand. The injury was caused by a sharp cutting weapon, and was simple in nature. Appellants Bakhar and A.I Nawaz, both had received one incised wound each on the right side chest and upper part of left side of chest respectively, which appeared to have been caused by sharp-cutting weapon and were simple in nature. Finally Abdul Qadir had also received one incised wound on the…
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