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Petitioner: MUHAMMAD YAQOOB AND 3 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Fakhruddin H. Shaikh Title: MUHAMMAD YAQOOB AND 3 Others vs THE STATE Case No.: Criminal Appeal No. 112 and Criminal Suo Motu Revision No. 6 of 1980 Date of Judgment:1982-03-03 Reported As: 1982 P Cr. L J 961 Result: Appeal allowed
JUDGMENT
JUDGMENT AJMAL MIAN, J.---By ibis common judgment we intend to dispose of Cr. Appeal No. 112/1980 and Cr. Suo Motu Rev. No. 61 of 1980. The four appellants, namely, Muhammad Yaqoob, son of Noor Muhammad, a Police Constable by profession, Faiz Muhammad, son of Aleem Khan, Ahmed son of Faiz Muhammad and Manthar, son of Ghulam Hussain stand convicted by the learned IInd Additional Sessions Judge, Larkana, under section 302/34, P. P. C. And have been sentenced to suffer life imprisonment and also to pay fine of Rs. 2,000 each or in default of payment of fine, each of them has to suffer further R. I. For 6 months, for the murders of Atta Mohammad and Bashir Ahmad both sons of P. W. 1 Himath Ali allegedly committed on 7th February, 1977 at 7 p.m. On the public Katcha road towards West near Khanwah Town, deh Khanwah at 4 miles from the P. S. Naudero. It was also ordered that if fine was deposited, the same should be paid to the heirs of the deceased. Appellants Yaqoob, Manthar and Faiz Mohammad were also sentenced to suffer R. I. For 6 months under section 323/34, P. P. C. Both the above sentences were to run concurrently. It may be observed that the above four appellants were tried alongwith Ali Mardan, son of Imam Bux for above murders, but the latter has been acquitted, and, therefore, he has not filed any appeal. The F. I. R. Was lodged by the P. W. I complainant Himath Ali at 22-30 hours at the Police Station, Naudero on the same day. It was alleged that the complainant had 100 Jareebs of his own land in deh Pir Bux Bhutto and that on the day of the incident they started thrashing of the paddy. It was further alleged that the complainant, his two sons, namely, Atta Mohammad and Bashir Ahmed were also thrashing. It was also stated that at about 7 p.m. The Complainant's wife Mst. Hajan P. W. 2 and the complainant's younger son aged 12 years brought their meals at the field. However, the complainant and his sons told them that they would take the meals at home because they had to
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unyoke the bullocks of the thrasher. It was further alleged that the complainant, his wife Mst. Hajan were returning to their house through the Katcha track leading from the West to the East. While they were returning Atta Mohammad was ahead of them, whereas Bashir Ahmad was behind the complainant. It was also alleged that Ali Asghar, son of Ghulam Rasool, Jarwar, resident of Khan wah was returning towards the village from Naudero Town and met them on the way. It was also stated that at about 7.30 p.m. While the complainant party reached near the village appellant Faiz Mohammad challenged from the northern side of the track "be careful, you would meet to death". It was also stated that the complainant and Ali Asghar had torches and due to availability of electricity, the bulbs were also on. It was further stated that immediately on hearing the above challenge, they flashed the torches towards the challenge, and that on the light of bulbs and torches, the complainant party found and identified appellant Faiz Mohammad, son of Alam Khan Jarwar armed with his licensed single barrel gun, Ali Mardan, son of Imam Bux Manthar, son of Ghulam Hussain, Ahmed, son of Faiz Mohammad Jarwar (residents of their houses near village Mohammad Pannah Jarwar, Taluka Miro Khan) and Mohammad Yaqoob, son of Noor Mohammad Jawar, resident of village Khan wah, Taluka Ratodero, all armed with hatchets. It was also alleged that Faiz Mohammad fired his licensed gun at Atta Mohammad, who left the track and ran towards south in the field. It was also stated that upon receiving the bullet injury Atta Mohammad fell down. Thereupon, Bashir Ahmed rushed towards Faiz Mohammad and challenged Faiz Mohammad "not to kill the man". Whereupon, Faiz Mohammad opened gunshot at Bashir Ahmad. Manthar inflicted hatchet blow on the head of the Bashir, Ahmad also inflicted hatchet blow on the left arm and Mohammad Yaqoob inflicted blow on the right thumb of Bashir Ahmad. After receiving the above injuries Bashir Ahmad also fell down. It was further alleged that thereafter accused started running, who were chased by the complainant party including Ali Asghar. It was also stated that Manthar inflicted hatchet blow on the left arm of Ali Asghar which struck him like abrasion. It was further stated that after the accused ran away, the complainant party found that there was gun shot injuries on the chest and back of Atta Mohammad and because of which he had expired. The complainant party also found gun shot injury passing through and through on the right side neck of Bashir Ahmed and also hatchet injuries on the head, left arm, right thumb and on other parts of his body, which were bleeding and because of that he also expired. It was also alleged that there was injury like abrasion on the left wrist of Ali Asghar, and that Haji Mohammad Amin, son of Bakhshan and Ghulam Mustafa, son of Haji Mohammad Amin by caste Jarwar, resident of Khan Wah came to the complainant on hearing the gunshot reports and cries, who also found gun injuries on the persons of Atta Muhammad and Bashir Ahmad, woo had died. It was also stated that leaving the above witnesses over the dead bodies, the complainant had come to lodge the report at the police station and that the accused in collusion with each other formed an unlawful assembly and had murdered his sons, namely, Atta Mohammad and Bashir Ahmad by firing gunshot and inflicting hatchet blows. It was further stated that about 3-4 years back deceased Mohammad Ishaque, brother of appellant Faiz Mohammad was murdered, the complaint was lodged at P. S. Ratodero against deceased Atta Mohammad and others and that deceased Atta Mohammad and others were challaned but after trial, they were acquitted. It was also stated that the above accused had shifted from village Khan Wah to near the village Mohammad Punnah Jarwai, Taluka Miro Khan. 2. (a) The prosecution case rests on the ocular evidence of the 3 alleged eye-witnesses, namely, P. W. 1 Himath Ali, the complainant and the father of the deceased, P. W. 2 Mst. Hajan, mother of the deceased and P. W. Ali Asghar, a close relation, of the complainant P. W. 3. The testimony of the above eye-witnesses had been sought to be corroborated by the evidence of P. W. Haji Mohammad Amin Exh. 16. The prosecu--tion has also relied upon the motive disclosed in the F. I. R. And the recoveries of empties from the place of wardat, recoveries of licensed .12 bore gun from
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appellant Faiz Mohammad and, recoveries of the blood--stained hatchets from appellants Manthar and Ahmad and so also on ballistic expert report Exh. 34 and chemical Analysers' report Exh. 35, which are in the affirmative. The prosecution has also examined in addition to the above 3 alleged eye-witnesses P. W. 4 Haji Mohammad Amin P. W. 5 Rab Rakhio (a police constable, who had carried the dead bodies of the deceased to the medical officer, Ratodero for post-mortem), P. W. 6 Dr. Nooruddin who carried out post-mortems and prepared post-mortem reports Exh. 21 and 22 and the medical certificate of P. W. Ali Asghar Exh. 23) P. W. 8 Roshan Ali one of the mashirs to the mashirnama of search of the persons of the accused Exh. 27, mashirnama regarding production of gun by accused Faiz Mohammad Exh. 28, and mashirnamas regarding the recoveries of the hatchets Exhs. 29, 30 and 31, P. W. 9 Ali Anwar, the investigation officer and P. W. 10 Mohammad Uris Tapedar, who prepared the sketch of place of wardat Exh. 37. (b) The accused in their statements under section 342., Cr. P. C. Denied the factum of having committed the above murders. Accused Mohammad Yaqoob in his statement has stated that his father Noor Mohammad had appeared as P. W. Against Piral, Hakim and another, who and the P. Ws. To the instant murder cases are inter se related. He has further stated that on 7th February, 1977 he was posted as the Treasury Guard at Kotdiji, District Khairpur, and was on duty at the time of the incident. He has also stated that he was involved falsely on account of enmity. Accused Faiz Mohammad in his statement admitted the fact that his brother Mohammad Ishaque was murdered, but has denied, of having committed the two murders in order to take revenge. He has further stated that he is an innocent person. Accused Ahmed in his statement has stated that he is son of accused Faiz Mohammad and that he is innocent and that P. Ws. Have deposed against him as they are interested, hostile and inimical. Accused Manthar in his statement also stated that he is innocent and he has been falsely implicated and that the witnesses are interested, hostilo and inimical to the accused party. He has further stated that he is son of sister's of co-accused Faiz Mohammad. Ali Mardan who was an accused alongwith the present 4 accused/ appellants and who has been acquitted also denied the factum of having committed the murders and he, also stated that he has been falsely implicated and that he is son of sister of accused Faiz Mohammad. He has further stated that P. Ws. Arc, interested, hostile and inimical. 3. (a) Reverting to the testimony of the alleged eye-witnesses, it may be observed that P. W. I complainant Himath Ali has in his deposition reiterated the facts mentioned by him in the F. I. R. In his cross-examination he has stated that the 4 accused gave I injury each with hatchet to Bashir Ahmed. He has admitted that Roshan one of the mashirs is brother of P. W. Ali Asghar and that P. W. Ali Asghar and P. W. Roshan Ali are cousins of his wife and he was marote of the above two P. Ws. He has further stated that Mst. Mariam is wife of P. W. Abdul Majeed, who is the daughter of Usman, who died in Jail and who was convicted in a case causing injury to Mohammad Ishaque brother of accused Faiz Mohammad, who wars subsequently killed for which his son Atta Mohammad was facing trial but was acquitted. He goes on to state that Roshan Ali is cousin of Hatim, the mother of Jamaluddin is Mst. Samul and that the name of mother of Piral is Mst. Fatima. He has denied that Mst. Fatima and Mst. Samul are real sisters. However, he has admitted that Manzoor is son of Gullan (one of the, mashirs, who has not been examined by the prosecution). He has further stated that Manzoor was also accused in the murder case of Ishaq. He has denied that his wife is sister of Hakim or that Piral is brother of his wife Hajan. He has also stated that prior to this incident accused Faiz Mohammad had filed a case against him and in that case Manthar, Ahmed and his brother Abbas and Ali Mardan were witnesses against him, and that Hakim was murdered prior to this incident. He has further stated that in the murder cases of Hakim, Ahmed, Ali Mardan, Manthar and
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Abbas were accused but all of them were acquitted. He has also stated that he was not convicted in the case of fire filed by Ali Mardan the present accused. He goes on to state that Hatim was a witness in the murder case of Hakim and accused were Manther, Ali Mardan, Ahmed and one Abbas. He has also stated that Mohammad Siddique is not brother of P. W. Abdul Majeed, and that Mohammad Siddique was convicted in the injury case of Mohammad Ishaque. He has further stated that his son Atta Mohammad and Manzoor son of Guilan were accused in the murder case of Mohammad Ishaque. He has further stated that accused Ali Mardan was prosecution witness against his son Atta Mohammad in that case. He has admitted that accused Faiz Mohammad, his brother Ishaque, Mst. Karimat, Imam Bux and Mst. Lalan were injured near a mosque and in that case Sohrab, Hakim, Qaim, Kaman and Piral were accused and that because of that Mst. Lalan died. He has further stated that Mst. Karimat is mother of accused Ali Mardan. He has admitted that A. Sattar bad filed a murder case against Ali Mardan and another and in that case Hatim and Karim Bux were the witnesses of complainant Abdul Sattar. He has also deposed that priot to this incident Ishaque had filed injury case against .Him, Siddique, Usman, Wadhal and Abdul Sattar and that they were acquitted in that case. He has further deposed that the present accused Ali Mardan and Manthar were witnesses in that-case. He has also stated that he bad gone to the P. S. All alone on foot and that Naudero P. S. Is about 4-- miles from the wardat. He has denied the suggestion that S. H. O. Obtained oral evidence. He has voluntarily stated that as soon as be reached the police Station, he lodged the F. I. R., which was recorded by the S. H. O. And thereafter he proceeded to the wardat. He has further stated that there were about 200 houses in their village, and the people of different castes were residing there. He has also deposed that on hearing cries, the other people of the village also came at the place of rardat, but first P. W. Muhammad Amin and Ghulam Mustafa reached the place of wardat and that the other people who had come after the incident belonged to other castes. He has also stated that Ali Asghar was having torch which he produced before the police at the wardat. He has further stated that he had not shown to the police the place where they were thrashing the paddy, which was about 14-15 paces away from the place where the murder had taken place. He goes on to state that they bad started thrashing paddy on the day of the incident. He has also stated that be had asked his wife to bang the dinner and, therefore, she had brought the same. He goes on to state that be was not in a position to say for what work P. W. Ali Asghar had gone to Noudero. He has also stated that the village of the accused is about 8-10 miles away from village. He has admitted that accused Yaqoob was a police man and during the period of the incident, he was posted in Kotdiji. He has further admitted that accused Yaqoob is son of Noor Muhammad, who was witness against Hakim, Piral, Karim Bux and others. He has further admitted that Noor Muhammad father of Yaqoob was witness in the injury case against Usman, Siddique, Abdul Sattar and others. However, he has denied that P. W. Abdul Majeed is the husband of the daughter of Usman. He has further denied having stated in the F. I. R. That as soon as Atta Muhammad was fired upon Bashir ran towards the accused. He has admitted that Piral and Ghulam Rasool are brothers inter se and that Ghulam Rasool is father of P. W. Ali Asghar. He has denied that Yaqoob was not present near the wardat or that he was in fact at Kotdiji on that particular date and time. (b) P. W. 2 .Mst. Hajan, mother of the deceased has more or less stated what has been stated by her husband P. W. 1 Himath Ali. However, she has contradicted her husband on certain material points. In her cross-examination she has stated that thrashing of paddy started about a week prior to the incident, whereas her husband has stated that it had started on the day of the incident. Similarly she has stated that she used to take meals for her husband and sons daily and it was a routine matter for her, where as her husband has stated that he had asked his wife to bring the meals on that particular day. She has also stated that some persons who were thrashing the paddy near their land had seen the accused. She has also stated that they (i. e. Complainant
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party) narrated the incident to all the villagers, who bad come at the place of wardat and that they belonged to different castes including Koris, Mochis, Khatris, Sheikh Jarwars, Bhuttas and Syed etc. She has further stated that the meals which she had taken for her husband and sons were with her at the wardat which was seen by the police at the wardat. She has further stated that P. W. Ali Asghar is her cousin and that he remained at the wardat till the arrival of the police. She goes on to say that the police reached the wardat before Somahni prayer and remained at the place of wardat for the night and that on the next morning her husband Himath Ali lodged his F. I. R. With the police at the wardat she has also stated that Mst. Samul and Mst. Fatima are sisters inter se and that P. W. Abdul Majid is brother of Muhammad Siddique: She has further stated that since 30-40 years; there are cases and counter cases between the parties namely i. e. The complainant and the accused parties. She has also stated that it is a fact that P. W. Gullan and Roshan Ali were called by the police at the wardat, and that these person were called by the police on the following day in the morning. She has denied the suggestion that the incident had taken place at Manjhand time. She has admitted that Hakim is her brother, Piral is her uncle, Hatim is her cousin. She has further stated that Piral is uncle of Sahibdino and Jamal, but she does not know whether Sabibdino and Jamal were haris of Dr. Nooruddin Qazi. She has denied the suggestion that P. W. Ali Asghar has not received any injury on the place of wardat. (c) The next eye-witness in the case as mentioned hereinabove is P. W. 7 Ali Asghar, who has deposed that he knew deceased Bashir Ahmad and Atta ltluhammad and complainant Himath Ali and also Mst. Hajan and Abdul Majid. He has further deposed that about 2 -- years back he had gone from his village to Naudero for purchasing cells for his torch and that after purchasing the cells he was coming back. He has further stated that at 7 p m. When he reached about 2-3 paces away from the village, he found Bashir Ahmad, Atta Muhammad, Himath Ali, Mst. Hajan, Abdul Majid and Nisar Ahmad and saw that these pe sons were; taking away bullocks. He has also deposed that he also saw accused Faiz Muhammad, Muhammad Yaqoob, Ahmed, Ali Mardan and Manthar. He further saw that accused Faiz Muhammad was armed with gun and the rest of the accused were armed with hatchets. He has further stated that accused Faiz Muhammad is his maternal uncle, accused Ahmed is his marot and other accused are his near relations. He goes on to state that accused Faiz Muhammad gave hakal to deceased Atta Muhammad "Khabardar I" and thereafter he fired at Bashir Ahmed, who on receipt of the fire fell down on the ground. He has further stated that accused Yaqoob, Ahmed, Ali Mardan and Manthar gave hatchet blows to Bashir and that he tried to intervene and on that accused Manthar gave him a hatchet blow on his left arm. He has further eposed that accused Faiz Muhammad had also given gun injury to Atta Muhammad and that the incident was witnessed by him, Himath Ali, Mst. Hajan and Nisar and that on their cries Haji Muhammad Amin and Ghulam Mustafa came, to whom they narrated the incident. He has also deposed that at the time of the incident there was electric light and that he had also a torch which he had flashed. In his cross-examination, he has stated that he bad gone for purchasing cells at 10 a. m. And that he remained in Naudero town till the time, he came back in the evening at about 7 p. m. He has also stated that there were 200 houses in village Khanwah where six-seven castes people lived. He has further stated that he was not marot of complainant Himath Ali and that he had not stated so in his 164 statement. He has also stated that after the incident 200 persons had collected from Khanwah but they came after the accused had run away, and that those people were from different castes. He has denied the suggestion that be had not witnessed the incident. He has also stated that Hatim is his cousin. He has further stated that he does not know if his elders had got any dispute with the accused. He has also stated that though he needed cells since a month earlier, but on the day of incident be had gone to purchase the same. He has further stated that accused Yaqoob who was posted in Kotdiji but at the time of the incident he was on leave and was present in their village and had come to Khanwah on the day of
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the incident at about 2 p. m. In a jeep and after committing murder alongwith co-accused had gone back in the jeep to his place of posting. (d) P. W. 3 Abdul Majeed as pointed out hereinabove was a mashir to the Mashirnama for the torch produced by the complainant Exh. 9, for the 4 empties recovered from the place of wardat Exh. 10, for the 2 inquest reports Exhs. 11 and 12 in respect of the two deceased, for the injury on the person P. W. Ali Asghar Exh. 13 and also mashir to the mashirnama in respect of the torch produced by P. W. Ali Asghar Exh. 14. In his cross-examination he has stated that Mohammad Siddique is not his brother, whereas P. W. 2 Mst. Hajan in her deposition has stated that P. W. Abdul Majid is the brother of Mohammad Siddique. He has further stated that he knew Mohammad Ishaq brother of accused Faiz Mohammad, who was injured by Mohammad Siddiq who was convicted. He has further stated that the police came at the wardat in the night and that the empties were secured in the night but mashirnama was prepared in the morning. He has further stated that from the place of wardat, he had gone with the police to the houses of the accused where the police conducted search of the houses of the accused but they were found missing. He goes on to state that the empties were sealed at the place of wardat, but the police had not brought the stamp at the wardat and therefore, the sealed empties were stamped at the police station. He has also stated that he was at the wardat when the complainant brought the police at the place of the wardat and so also his co- mashir Jamaluddin. He has further stated that the complainant is related to him and so also accused. He has also further stated that P. W. Ali Asghar was called by them from his house. (e) P. W: Haji Mohammad Amin has deposed that he knows complainant Himath Ali and also knew deceased Atta Mohammad and Bashir, who were sons of the complainant and that they were his co-villagers. He has further deposed that about 2 years and 2 months back deceased Ahmed and Atta Mohammad were killed. He goes on to state that after the sunset, he was sitting in his house, when he heard cries and gunshot reports from the western side, thereupon, he' rushed to the wardat, where he saw Atta Mohammad and Bashir lying injured at the place of wardat. In his cross-examination, he has stated that Ghulam Mustafa is his son and Mst. Nooral is his wife and that she is not sister of complainant Himath Ali. He has also stated that P. W. Roshan Ali is brother of P. W. Asghar, who is also a mashir in this case. He has further stated that he does not know if Asghar is cousin of Mst. Hajan. He has further stated that he does not know that Mst. Mariam is wife of P. W. Abdul Majid. He goes on to state that many people came at the place of wardat, but he does not know if the people of other castes had also come. He has denied the suggestion that he was deposing falsely on account of his relationship. He has also stated that accused's village Mohammad Punnah Jarwar was about 5-6 miles away from Naudero P. S. And that there were 4-5 houses in village Pannah Jarwar out of which 3 were of the accused. He has further stated that he knows Noor Mohammad father of accused Yaqoob but he does not know if this Noor Mohammad was a witness in the murder case of Usman and Piral. He also stated that accused Yaqoob is a police man but at the time of this incident he was present at the place of wardat. (f) P. W. Dr. Nooruddin has deposed that on 8th February, 1977 he was working as the Medical Officer at R. H. C. Rato dero and that the Naudero police sent to him dead body of Bashir Ahmad, son of Himath Ali through the police constable Rab-Rakhio for post-mortem and report. He has further deposed that the body was identified by Abdul Sattar cousin of the deceased and Piral a relative of the deceased. He has further deposed 'that he started post-mortem examination at 1 p. m. And completed it at 2 p. m. On the same date. The body was of male, muslim adult of 16 years, well built and rigor mortis was present all over the body. On the external examination he found the following injuries on the person of the above deceased : "(1) Lacerated oval wound 2" in diameter at the right side of neck piercing inside containing pieces of gutta.
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(2) Lacerated of oval wound 1--- in diameter at the right side back of neck communicating with injury No. 1. (3) Incised wound 3'' x 1" x muscle deep 2" above the left elbow lateral aspect. (4) Incised wound 1----- x ----- x muscle deep at the route of right thumb. (5) A bruise, ----- in diameter at the left iliac region. (6) Incised wound 4" x 3/4" y brain deep at the mid parietal region. (7) Three lacerated oval wounds 1/6 in diameter each superficial at the right knee". On internal examination he found the following…
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