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Petitioner: MUHAMMAD ASLAM VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ghous Ali Shah, Muhammad Zahoor-ul-Haq Title: MUHAMMAD ASLAM vs THE STATE Case No.: Criminal Appeal No. 62 of 1978 Date of Judgment:1980-06-03 Reported As: 1981 P Cr. L J 308 Result: Sentence reduce
JUDGMENT
JUDGMENT MUHAMMAD ZAHOORUL HAQ, J.--This is an .Appeal under section 410, Cr. P. C: against the judgment of II Additional Sessions Judge, Nawabshah dated 18th January, 1978, whereby the appellant was convicted under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs. 100 (Rupees One Hundred) or in default to suffer further 3 months simple imprisonment. The co-accused of the appellant namely Fakeer Muhammad, who was father of the appellant Muhammad Aslam was acquitted. The relevant facts are disclosed in the F. I. R. Exh. 13, which was lodged on 8th June, 1975 at 00-30 hours at Mehrabpur Police Post by Taqqi Muhammad P. W. 3, who is maternal uncle of the deceased Mir Muhammad. The F. I. R. Is reproduced herein below:- "I am Zamindar'. I own lands in Dehs viz. Beresan, Paban Wanah and also in other -Dehs'. I have also got 57 acres of land in Deh Nakhe Rajpar and Jiando Rajpar, "in District Nawabshah. In thesi 'Dehs', my nephew i.e. Mir Muhammad has also got the lands, which is on `Khata' of his father, but Mir Muhammad Khan used to look after the same. We also own houses in Mehrabpur Town. I and my nephew Mir Muhammad oftenly used to reside in Mehrabpur Town. Today I and Mir Muhammad were sitting in our bungalow, where we decided to go to 'Dera' of Tapedars and that if the Tapedar of our best was available there, we will contact with him and pay the land assessments and settle the account. At about I1-45 p. m. I and Mir Muhammad set out from the bungalow, and were going along the street, leading to "Dera" of Tapedars. When, we reached in front of house of Abdul Aziz Machi, where is fixed a electric Pole and the bulb was lighting whereon and it was sufficient light. Suddenly somebody called name of Mir Muhammad and added that today he should be murdered and be careful. We turned our faces backwards and saw that they were, namely Aslam
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son of Faqir Muhammad Malik and his father i.e. Fakir Muhammad. They both were coming while running. Aslam was armed with a "Churri" and Faqir Muhammad was empty-handed. On reaching close, Faqir Muhammad caught hold of Mir Muhammad and asked his son Aslam not to spare him. Aslam within my sight, delivered a sharp---sided "Churri" blw to Mir Muhammad, which hit on his back. I was empty-handed. Faqir Muhammad fell Mir Muhammad down. I and Mir Muhammad raised cries, as "murder ! Murder !" On hearing our cries, namely Nazar Muhammad Mojai, Jhando Chandio and Policeman Muhammad Younis came there. Aslam, within my sight and the above, was giving 'Kati' blows to Mir Muhammad. I/we all apprehended Aslam alongwith his `Kati'. Faqir Muhammad also took out (illegible) from Mir Muhammad. Due to receipt of ---Kati' injuries, Mir Muhammad breathed his last, within our sight. Thereafter, we deputed Nazar Muhammad Mojai and others to keep guard over the dead body of Mir Muhammad, while I, Jhando Chandio and constable Muhammad Younis brought accused Aslam and his father Faqir Muhammad at the Police Station. Then Muhammad Younis snatched the blood-stained 'Kati' before us from accused Aslam with which he has committed murder of Mir Muhammad, and now we are producing the same. Accused Aslam and his father Faqir Muhammad, with their common intention, have committed the murder of Mir Muhammad. I lodged complaint, justice be done." The F. I. R. Was recorded by P. W. 9 Bhambho Khan, since, the accused/appellant Aslam and Fakir Muhammad had been produced before him along with a 'Kati' dagger at the Police Station by Police Constable Muhammad Younis P. W. 4, therefore, he prepared the Mashirnama of their arrest Exh. 25. By the same exhibit, he also secured the undershirt and loin-clothes from the person of Aslam accused /appellant with blood stains on the same and the stained Shalwar from the person of accused Faqir Muhammad. The same was recorded in the presence of Mashir Muhammad Juman P. W. 7 and Yar Muhammad. The blood-stained 'Kati' snatched from the accused/appellant had been secured under Exh. 24 on 8June 1975 at 0-55 hours in the presence of the same Mashirs. Separate sealed parcels were made of the 'Kati' and the clothes of the two accused. He recorded the statements of Police Constable Muhammad Younis P. W. 4 and P. W. 5 Jhando, and thereafter, proceeded to the Wardat and he prepared Mashirnama of the same in the presence of the same Mashirs, which is Exh. 26. The Wardat is shown in front of house of Abdul Aziz Machi in the street leading from the bungalow of Muhammad Taqqi P. W. 3 and deceased Mir Muhammad to 'Dera' of Tapedars in Mehrabpur Town. The blood-stained earth was secured from the Wardat and sealed. The body of the deceased Mir Muhammad, which was lying at the Wardat was seen and inquest report Exh. 27 was made. The statement of P. W. 8 Nazar Muhammad was recorded. On 9June, 1975, the accused/appellant Aslam was produced before the Mukhtiarkar and First Class Magistrate Muhammad Suleman P. W. 2 for recording of judicial confession, which was recorded as Exh. 11 on the same day at 1-30 a. m. He got the statements of P. Ws. Recorded under section 164, Cr. P. C. The blood-stained articles were sent to Chemical Examiner, whose report was produced in Court as Exh. 31, which showed that all the articles were found stained with human blood. He had also interrogated the accused, when he had arrested them. On 14June, 1975, he sent the Police Papers to S. H. O. Kandiyaro for further action. The case of the prosecution rests upon the statements of four eye-witnesses P. W. 3 Taki Muhammad, P. W. 4 Muhammad Younis Police Constable, P. W. 5 Jhando and P. W. 8 Nazar Muhammad. Support is also sought from the judicial confession Exh. 11, which has been retracted, and the evidence of arrest of the accused at the spot and recovery of blood--stained 'Kati' from accused/appellant Aslam and blood-stained clothes recovered from the persons of the two accused, which have been found by the Chemical Examiner to be stained with human blood. The Medical Officer P. W. 6 Jamilur Rehman's has been examined to show that deceased Mir Muhammad had received the following 4 incised injuries at the neck and back out of which injury No. 4 was found to be fatal and sufficient is ordinary course of nature to cause death:-th th th
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(1) incised wound --" x --" x muscle deep on the back of neck. (2) Incised wound 1" x --" x muscle deep on the back of left chest above left scapula. (3) Incised wound 1" x --" x --" (muscle deep) going/into the muscle below left scapula on the left chest. (4) Incised wound 1--" x --" x cavity deep on the back of left chest near the mid line at the level of 11th Thorex Vertebrae on the left transverse process of the 11 Thorasic Vartebrae which was also cut. The wound was going to the abdominal cavity, the clotted blood was coming out of the wound." The Complainant P. W. 3 Taqqi Muhammad reiterated the contents of the F. I. R. Exh. 13 in its entirety and stated that he and his nephew Mir Muhammad were going at 10-45 p. m. To the Dera of Tapedar for the purpose of paying land revenue, when they heard a voice from back side warning Mir Muhammad (deceased) that he should stop and they would not leave him. This witness saw that Faqir Muhammad caught Mir Muhammad (deceased) by embracing him and appellant Aslam attacked Mir Muhammad (deceased) with a dagger and gave a blow on his back and they both raised cries of help, and thereupon, Nazar Muhammad P. W. 8 and P. W. 5 Jhando and one uniform constable came running. He further saw that accused /appellant Aslam gave three more blows upon Mir Muhammad (deceased). Nazar Muhammad P. W. 8 caught hold of appellant Aslam and Police Constable snatched the dagger from appellant Aslam, while P. W. 5 Jhando caught hold of Fakir Muhammad. Mir Muhammad (deceased) fell down on the ground and died. Other persons also came to the Wardat. They then took away appellant Aslam and Fakir Muhammad along with dagger to Police Post, Mahrabpur and he lodged his F. I. R. Exh. 13 and he showed the Wardat to the Police. In cross---exam nation he admitted that Mashir Yar Muhammad is related to deceased Mir Muhammad, but asserted that P. W. 7 Jumman is not related to them. He denied that P. W. 5 Jhando was their Kamdar. He asserted that some money for payment had been taken by the deceased Mir Muhammad. He admitted that he and Mir Muhammad (deceased) were in their house after `Asar' prayer; till they went out towards Tapedar's Dera. He admitted that village of P. W. 5 Jhando is 7 miles away from Mehrabpur and P. W. 8 Nazar Muhammad resided in their village, which was five miles away from Mehrabpur. He also admitted that Muhammad Jumman P. W. 7 had also come to the Wardat at the time of incident. He asserted that no person was sleeping on the cot in the street, when the incident took place. He denied that he had not seen the incident or that he was called by the Police in the morning. P. W. 4 Muhammad Younis stated that he was on patrolling duty and when the cinema was over at about 11-00 p. m. He reached near the house of Haji Rajabuddin and heard cries of murder ! Murder ! He went running and saw accused Fakir Muhammad catching hold of Mir Muhammad (deceased) meanwhile, Nazar Muhammad P. W. Band P. W. 5 Jhando also came at the scene. He saw that accused/appellant Aslam who was armed with a dagger, striking blow to Mir Muhammad (deceased) and complain--ant Taqqi Muhammad was standing near Mir Muhammad (deceased) and raising cries. P. W. 8 Nazar Muhammad caught hold of appellant Aslam and Younis snatched the dagger from appellant Aslam P. W. 5 Jhando caught hold of Faqir Muhammad and rescued Mir Muhammad (deceased), who fell down on the ground. They then arrested the accused and took them to the Police Station. He produced the dagger before the A. S. I. Bhambho Khan P. W. 9, thereafter, he took the body of the deceased to Medical Officer for post-mortem. In cross- examination, he was confronted with his 164, Cr. P. C. Statement (extract Exh. 16) where be had admitted that there were 10 or 15 persons, who had gathered at the Wardat, when he reached the Wardat. He had also stated before the Magistrate that there was some cots when the incident had taken place. He asserted that the complainant or the accused were not known to him. He, however, admitted that Mst. Rehmat Bibi, the mother of accused /appellant Aslam had filed a counter case, where he was an accused. He denied that he had deposed on account of friendship with theth
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complainant party and he further denied that Fakir Muhammad had filed an application against him to the Higher Authorities. He had produced extract from copy of Roznamcha of Police Post, Mehrabpur Exh. 15, which bore an entry at Serial No. 10 showing that at 2000 hours on 7th June 1975 Police Constable Muhammad Younis No. 131 was sent for patrolling duty and Cinema duty. The same extract at Serial No. 11 shows that on 8June, 1975 at 00310 hours complainant Taqqi Muhammad P. W. 3 along with Muhammad Younis P. W.4 and accused/appellant Aslam and Fakir Muhammad came there and lodged a complaint of murder. It also shows that accused had been put into custody. The statements of P. W. 5 Jhando, P. W. 8 Nazar Mohammad are almost similar and they have stated that they took tea in the hotel of Pervaiz and at about 11-00 p. m. They went towards cinema, but near `Dera' of Tapedars, they heard cries, they went running and saw Taqqi Mohammad raising cries, while Fakir Mohammad had caught hold of Mir Mohammad and accused/appellant Aslam was causing dagger blows to Mir Mohammad (deceased), P. W. 5 Jhando caught hold of Fakir Mohammad, while Nazar Mohammad P. W. 8 caught hold of Aslam and one Police Constable, who had reached there meanwhile, snatched away dagger from appellant Aslam. Mir Mohammad (deceased) collapsed and died. P. W. 8 Nazar Mohammad was left at the spot to look after the dead body, while P. W. 5 Jhandho, complainant Taqqi Mohammad and Police Constable Mohammad Younis took both the accused and the dagger to the Police station, where the complainant lodged the report. In cross-examination, P. W. 5 Jhando stated that his village is 7 miles away from Mehrabpur. He denied that he look after the land of Taki Mohammad. He admitted that it was the first time that he had stayed with Nazar Mohammad P. W. 8 otherwise he was not on visiting terms with P. W. 8 Nazar Mohammad, He stated that hotel of pervaiz is about 400 paces away from the house of P. W. 8 Nazar Mohammad, while cinema is another 400 paces from the hotel of pervaiz. They had heard cries at a distance of 40 paces. He admitted that about 10 other persons had collected at the Wardat. He asserted that appellant Aslam caused three injuries to Mir Mohammad (deceased) in his presence and fourth injury to Mir Mohammad (deceased) while leaving him. His statement under sec--tion 164, Cr. P. C. Was shown to him. He denied that he was deposing falsely. He asserted that Police had recorded his statement but his 164, Cr. P. C. Statement showed that till 11June, 1975. The Police had not recorded his statement. In his 164, Cr. P. C. Statement, he had only stated that he and Taqqi Mohammad P. W. 3 Complainant with the help of Policeman Mohammad Younis P. W. 4 caught hold of appellant. In cross-examina. Tion. The other P. W. 8 Nazar Mohammad had admitted that Complainant P. W. 3 Mohammad Taqqi was his cousin. He further admitted that Mst. Rehmat Bibi, mother of appellant Aslam had filed a case of house trespass against him which was pending in the Court. He asserted that he bad stated before the Police that he had caught hold of accused/appellant Aslam and P. W. 5 Jhando caught Fakir Mohammad. He admitted that his village was 5 miles away from Mehrabpur, but he also comes to Mehrabpur. He stated that P. W, 4 Mohammad Younis came to the Wardat after them. He denied that any other persons came to the Wardat at the time of incident, but some persons came later on. He denied that he had stated before the Police that some other persons have also helped them in arresting the accused. He admitted that cinema show is over at 11-00 p. m. And while from Pervaiz Hotel to the place of Wardat, he had not met any person in the way. He could not say whether he had stated in his 164, Cr. P. C., statement that his statement had not been recorded by the Police, but we find from his section 164, Cr. P. C. Statement Exh. 29 that he did state that he has not been examined by the Police (till 11-6-75). He denied the suggestion of the defence that he along with Mohammad Younis P. W. 4, Bachal and deceased Mir Mohammad had trespassed into the house of accused/appellant Mohammad Aslam for the purpose of abducting Mst. Shahidan, daughter of Fakir Mohammad. He further denied that there was a fight on the abduction of Mst. Shahidan in which Mir Mohammad (deceased) was injured and they escaped, He denied that heth th
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was deposing falsely due to his relationship with the deceased Mir Muhammad and to save his own skin. The judicial confession Exh. 11 has been proved by P. W. 2 Mohammad Suleman, Mukhtiarkar and F. C. M. Of Kandiyaro, who was camping at Mehrabpur on 9th June, 1975. He stated that he gave all warnings to the accused /appellant Aslam before recording his confession. He stated that he was satisfied that the confession made by Aslam appel--lant Exh. 11 was voluntary and he has given various reasons 'in Court for his opinion as to why he considered the same as voluntary. We, however find that after recording the confession Exh. 21, he admitted in his statement before the trial Court that he gave the custody of the accused/appellant Aslam to the same A. S. I. Who had brought him for confession. He had also not recorded the various warnings in the confession. However, the confession recorded by him is reproduced here--in below:- "I am residing in Mehrabpur Town. My father also resides with me. In-between night of 7June. 1975 and 8June, 1975 my father was sleeping on the roof of the room. My sister Shahida, aged about 15 years and my two younger sisters were also sleeping in the courtyard of house. Our house has got two doors, one is fixed from south and another from north. I was sleeping in the street, in front of the southern side door. At about 1-00 or 1-30 a. m. In order to make water I were up. I heard some noise, coming from my house, I knocked the southern door, but it was closed from inside I having run, entered into the house, from northern door, the door was not closed. When I went to the courtyard. I saw that Mir-Mohammad Mojai was present in my house and my father was standing, holding him in his embrace and my sister Mst. Shahida was weeping. 4mmediately took up a Churri from near the kitchen. In the meanwhile deceased Mir Mohammad, whom my father was holding, in his embrace, dragging my father, tried to make exit through the northern door. On commotions, many persons had collected there. By the time. I was searching for the 'Churri' to follow. Mir Mohammad got himself freed and started fleeing. I ran after him when he reached near the house of Aziz Machi. I delivered a "churri blow" on his back. I also delivered him a second 'churri' blow. He fell down there and then, he was writhing. My father, who was following after me, also reached there and took me to home My father and mother took me to Mehrabpur Police Station. I produced the 'Churri' used in this offence before the Police. My mother was also sleeping on the roof with my 'Bail'. I am literate. The appellant in his statement denied prosecution case. . He admitted his signature on confession. But asserted that it was made on account of coercion, threats and maltreatment by the Police. About P. Ws. Be stated that they were related to the deceased. About incident he stated that he got up on cries and went inside his house and saw Mir Mohammad. Nazir Mohammad, who was crying, clothes of Shahida were torn. He, his father and mother grappled with the culprits. Other persons collected. The culprits ran away and then they saw Mir Mohammad was lying injured. He then went to Police Station with his father, but his report was not lodged. His mother and sister were called to the Police Station and were disgraced. He examined five D. W. In. Defence. Co-accused Faqir Mohammad adopted the statement of the appellant. The accused /appellant examined 5 D. Ws. In defence. Mst. Shahidan D. W. 1, who is the sister of appellant Aslam, stated that she was got up at about 12.00 or 1:00 a. m. When some persons assaulted her and she saw four persons standing over her and they started dragging her holding her hands, feet and hair. She raised cries and struggled to escape from their grip. In the struggle her shirt was torn. On her cries, her brother and father came in the courtyard and all the four culprits and her father and brother Aslam grappled with each other. Some persons from the neighbourhood also collected. The culprits went out but one of them fell down in front of house. Her father and brother then went to the Police Station. The Police came at about 1-00 a. m. And they took them as well as dead body to the Police Station. The Police detained her and her mother for two days at the Police Station and maltreated them. In cross-examination, she stated that there was street light in Mehrabpur. She denied that she knew deceased Mir Mohammad. She deniedth th
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that deceased Mir Mohammad died on account of knife injuries. She stated that her husband had not come to Mehrabpur even after the incident. She did not lodge any complaint against the Police for wrongful confine--ment. D. W. 2 Babo Mohammad Ibrahim, D. W. 3 Mohammad Rafiq and D. W. 5 Mohammad Shafi all stated that their residences are in the same street and they were sleeping in the street and were- up on cries and they saw three persons coming out of the house of Fakir Mohammad accused and running away and one person lying injured in front of house of Fakir Mohammad. They all went inside the house and saw one girl weeping and her clothes were torn and hair scattered. The accused informed them that the culprits had trespassed in their house and attempted to abduct Mst. Shahidan, and therefore, they bad grappled with the culprits. They stated that Police came at about 1.00 a. m. They all denied the suggestion in cross-examination that they had not seen the incident. They are admittedly all neighbours of the accused. D. W. 4 Abdul Aziz is also a neighbour and he stated that on hearing the noise he went to house of Fakir Mohammad and saw the dead body of Mir Mohammad (deceased) lying on the ground two yards from the house of Fakir Mohammad and two or three persons were going away having come out of house of Fakir Mohammad. In the house of Fakir Mohammad he saw that one girl was weeping. In cross-examination he admitted that his eyesight was weak and he could not see at the night time. No cross-examination was directed against him in respect of the fact that the body of the deceased was lying in front of his house. Mr. Ghulamally H. Agha learned counsel for the appellant has advanced several contentions against the conviction of his client. He has submitted that the prosecution story stated is unreasonable and absurd because no motive for killing had been alleged either in the F. I. R. Or in the deposition of any witness. (b) Circumstances particularly the timing of the incident and the casual passing of the complaining party showed that something else had happened, which had led to the killing and the same has been suppressed by the prosecution. (c) No revenue demand bill or any amount of money was recovered from the pocket of the deceased as stated by the Investigating Officer, and therefore, the story of visit of the Complainant party to the Dera of Tapedar is doubtful. (d) The story of embracing of deceased by Fakir Mohammad is not possible to accept as there are four injuries by `kati' on the back and neck of deceased without even a scratch on the hands of Fakir Mohammad which should have been injured if he was really embracing the deceased. Some of the criticisms above-referred is justified, but the story of the prosecution is both what has been stated by the prosecution witnesses as well as what is contained in the judicial confession of the appellant and the same have to be considered together. Moreover, it is not a case of such nature where there is a complete denial of the case by the defence. In this case the appellant in his statement under section 342, Cr. P. C. Has alleged that there was an attempt at the abduction of his sister by the deceased and three of the prosecution witnesses, namely, P. C, Mohammad Younis, Jhando and Nazar Mohammad and the same' story has also been put forward by the defence witnesses. Of course the accused appellant had not admitted to so many words that he has caused the injuries upon the deceased, but he admits to have grappled with the culprits along with his father and mother and since the deceased has been actually caused the injuries as found by the doctor, therefore, one could easily exclude the mother as none of the prosecution witnesses has involved her, similarly the father Fakir Mohammad could also be excluded as he was only assigned the role of catching hold of the deceased, and therefore, the admission of the accused in grappling with the culprits, if, read in conjunction with the evidence of the prosecution witnesses could reason--ably lead to the inference of inflicting of injuries actually by the appellant himself and by no other person. We are, however, of the view that the story put forward by the accused /appellant in his statement under sec--tion 342, Cr. P. C. And the defence version put forward by
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the prosecution witnesses do not appear to be reasonable as the story of forcible abduction of a woman in the night from her house by four persons, who do not have any weapon does not seem to be itself reasonable and plausible. The absurdity of the story is also apparent from the fact that there was no transport available with the so-called abducting party, and therefore, without any transport and without any arm, no person could think of abducting an adult-woman from a congested locality by force. We may also point out that admittedly in the street, where the house of the accused/appellant is situated, there were persons sleeping in the open in the street, and therefore, no person could even have illusion of getting away with the forcible abduction without a resistance of Mohalla people, who were sleeping in the street, therefore, the version of the defence does not hold any water. We, therefore, disbelieve the same. Moreover, we find…
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