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Petitioner: ALI BUX and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Munawar Ali Khan, Syed Sajjad Ali Shah Title: ALI BUX and others vs THE STATE Case No.: Criminal Appeal No, 136 of 1984 and Confirmation Case No, 29 of 1984 Date of Judgment:1985-04-15 Reported As: 1985 MLD 697 Result: Appeal accepted
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, J.-- Four appellants named above jointly filed this appeal against judgment, dated 21-11-1984 of learned Sessions Judge, Sanghar, whereby they have been convicted under section 302/34, P.P.C. For offence of triple murder and sentenced each to death. There is also before us reference for confirmation of death sentence as contemplated under section 374, Cr.P.C. We propose to dispose of the appeal and the reference by single judgment. ' Briefly stated the prosecution case is that on 27-5-1982 at about 3-30 p.m. All the four appellants armed with guns and pistol came to the Otak of complainant Gul Muhammad in village Qabool Khan Bugti, Deh Bakar, Taluka and District Sanghar and fired at All Jan and Ghulam Ali, who became injured and died. Subsequently appellants also killed Umar in the grazing ground by firing at him at a distance of about one mile from Otak of complainant. Complainant Gul Muhammad who is son of deceased Ali Jan, cousin of deceased Umar and Phuphar of deceased Ghulam All filed F.I.R. At Police Station Sanghar at a distance of ten miles on the same day at 5 p.m. According to F.I.R., version of the complainant is that at 3-30 p.m. He, his father Haji Ali Jan, Marote Ghulam All and relatives Muhammad Hassan, Muhammad Rahim and Muhammad Shareef were sitting in the Otak when the appellants came there. Appellants namely Ali Bux son of Hussain Bux, Ahmad son of Ali Bux and Hyder son of Ali Bux were armed with guns while appellant Murad Ali was armed with pistol. Appellant Ali Bux abused Ali Jan and fired at him straightaway from his gun which hit him on his face and he fell down. Appellants Ahmad and Hyder fired at Ghulam All while appellant Murad All fired at Ghulam All and All Jan. Witnesses did not come near due to fear and appellants after wounding All Jan and Ghulam Ali went away firing in the air. After departure of appellants, witnesses went near and found Ali Jan and Ghulam Ali lying dead due to injuries. After a short while
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P.Ws. Noor Muhammad and Peroz Bugti came to the Otak of complainant and informed that while they were grazing goats along with Umar, when at 4 p.m. All the four appellants, named above duly armed came running from the side of the village and fired at Umar, who fell down injured and died. Complainant left witnesses Muhammad Hassan and Muhammad Shareef to look after dead bodies in the Otak and Peroz and Noor Muhammad at the second Wardat to look after the dead body of Umar and himself repaired to the police station where he lodged F.I.R. In F.I.R. The motive is stated that there was dispute between the complainant party and appellants over lands which were taken by the complainant party from the Government and for the same lands appellants had moved Martial Law Authorities. ' P.W. 13 Ghous Bux, S.H.O. After recording F.I.R. Came to the scene of offence. He saw three dead bodies lying in the Otak of complainant. Dead body of Umar was also brought from the grazing ground to the take of complainant. He secured blood-stained earth and put into sealed parcel. He secured three crime empties at a distance of 20 or 25 paces from the scene of offence, which he put into sealed parcel. He prepared Mashirnamas of dead bodies and inquest reports and sent the dead bodies to hospital for post-mortem examinations. He found P.W. Khair Muhammad (witness of second incident) with injuries and prepared his Mashirnama of injuries and sent him to the hospital. S.H.O. Visited second Wardat where Umar was killed. The second Wardat was pointed out by complainant Gul Muhammad and P.W. Khair Muhammad. ' He prepared Mashirnama and also secured blood-stained earth and one crime empty which he put into sealed parcels. He recorded statements of witnesses namely Hassan, Muhammad Shareef, Muhammad Rahim, Noor Muhammad and Peroz. On the following day S.H.O. Arrested appellants Murad Ali and Ali Bux. Appellant Ali Bux produced his licensed gun alongwith licence which were secured under a Mashirnama. The gun was put into a sealed parcel. On 30-5-1982 S.H.O. Arrested appellant Ryder alias Ismail, who produced his gun from his house which was put into a sealed parcel. Appellant Hyder also produced licence of the gun. On the same day S.H.O. Arrested appellant Ahmad, who produced a hatchet from the hedge of his house. Hatchet was not blood- stained. On 31-5-1982 S.H.O. Got recorded statements under section 164, Cr.P.C. Of P.Ws. Before the Magistrate. He sent the guns and empties to Ballistic Expert for examination and report. Earth and other articles were sent to Chemical Examiner for report. After completing all steps of investigation, challan was presented. ' Before the trial Court prosecution examined in all thirteen witnesses in support of its case. Out of them seven are eye-witnesses. Prosecution has examined two sets of eye-witnesses. The first set claims to have seen the first incident and second set claims to have seen the second incident. Four eye-witnesses in the first set are namely P.W.1 complainant Gul Muhammad, P.W.2 Muhammad Rahim, P.W.3 Muhammad Shareef and P.W.7 Muhammad Hassan. Three eye-witnesses in the second set are P.W.4 Peroz, P.W.5 Khair Muhammad and P.W.6 Noor Muhammad. ' P.W. 11 Mir Hassan son of Muhammad Rahim has deposed about the motive and also stated that on the day of incident a few hours earlier he was beaten up in the Bazar by appellant All Bux and his son Ali Dino, who abused him and told him that they would not allow him to get water for the lands. Appellant Ali Bux had a stick while AU Dino had a hockey. Both gave him blows. Incident was seen by several persons in the Bazar of Sanghar and he went to police station and reported the matter which was entered in Roznamcha. ' P.W. 8 Muhammad Al, Mashir attested and produced Mashirnamas of Wardats, inquest reports and Mashirnamas of injuries Exhs.23 to 28. P.W.9 Ibrahim is another Mashir, who has arrested and produced Mashirnamas of arrests of appellants and recoveries of their weapons Exhs. 32 to 35. P .W .10 is Doctor Imtiaz Ali who conducted the post-mortem examinations on the dead bodies and produced such reports Exhs. 37 to 39. He also examined P.W.5 Khair Muhammad and produced his medical certificate Exh.
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40. P.W. 12 Nazar Muhammad, Tapedar prepared sketch of Wardat Exh.44. P.W.13 Ghous Bux is S.H.O., who investigated the case, deposed about the facts of the case as stated above and produced Chemical Examiner's report Exh. 46, according to which earth contained in three sealed parcels were found to be stained with human blood. He also produced report of Ballistic Expert Exh.47, according to which two .12 bore crime empties marked as C-3 and C-4 were fired from SBBL shot gun No, 35 C.P. And no opinion could be expressed about two other crime empties C-1 and C-2 whether they were fired from SBBL shot gun No, 35-CP or DBBL shot gun No, 5064. ' Appellants in their statements under section 342, Cr.P.C. Before the trial Court denied prosecution allegations. Appellant Ali Bux admitted having produced his licensed gun which according to him was not used in the crime. He further stated that P.Ws. Muhammad Rahim, Shafi Muhammad and Ali Jan deceased were his Haries and they owed him Rs,22,000 which they did not pay and he complained before the Martial Law Authorities and on that account he was falsely implicated. P.W. Mir Hassan had undertaken to pay the amount before the incident. Deceased Ali Jan and Umar had enmity with many other people. He further stated that appellants Murad Ali and Ahmad are his sons. Appellants Murad Ali and Ahmad have given similar statements as that of their father Ali Bux. Appellant Hyder alias Ismail likewise denied prosecution allegations, admitted having produced licensed gun which was not used. In the crime according to him. He has further stated that P.Ws. Had deposed against him because he had made applications before the Martial Law Authorities for recovery of his dues from them. He further stated that his name is Ismail and he has been also known as Hyder. In the first instance name of Hyder son of Bakho was given and subsequently his name Hyder alias Ismail was substituted. Appellants did not produce any witness in defence. ' We have heard learned counsel for appellants and for State and have gone through the entire record. Before the trial Court, in order to prove its case, prosecution has produced ocular evidence circumstantial evidence of recovery of crime weapons and evidence of motive. We have very carefully considered each piece of evidence and other concomitant circumstances of this case. ' We now take up first set of eye-witnesses, who claimed to have seen first incident in the Otak in which two persons namely Ali Jan and Ghulam All were killed. These four eye-witnesses are related to the deceased persons. P.W.1 complainant Gul Muhammad is son of deceased All Jan, cousin of deceased Umer and Phuphar of deceased Ghulam Ali. P.W.2 Muhammad Rahim is father of deceased Ghulam Ali and cousin of deceased Ali Jan. P.W.3 Muhammad Sharif is related to complainant Gul Muhammad and also to deceased Umer. P.W.7 Muhammad Hassan is brother of deceased Ali Jan, father of deceased Umer, maternal-uncle of deceased Ghulam Ali and uncle of complainant. Relationships described above clearly show how closely related witnesses are to the deceased persons. ' All these four eye-witnesses claimed in their evidence before the trial Court that they were present in the Otak on the day of incident and saw with their own eyes how All Jan and Ghulam An were done to death by four appellants. Complainant Gul Muhammad went to Police Station Sanghar 10 miles away and filed F.I.R. At 5 p.m. It is the case of the prosecution that after the first incident in the Otak was over, P.Ws. Peroz and Noor Muhammad came and informed that all the four appellants came to the grazing ground one mile away from Otak and fired at Umer, who became injured and died. Complainant went to the second Wardat saw the dead body of Umer and then went to police station. ' Now let us see what is the first version of both incidents as given in F.I.R. According to F.I.R. Four appellants came to the Otak and they were No, (1) All Bux son of Hussain Bux, (2) Ahmed son of All Bux (3) Hyder son of Ali Bux (incorrectly written in paper book as son of All Bux but correctly written in original F.I.R. As son of Bux Ali) and No, (4) Murad All son of Ali Bux. First three named appellants were armed with guns and last named Murad All was armed with pistol. Ali Bux abused All Jan and straightaway fired at him which hit him on his face and he fell down. Ahmad and Hyder had fired at
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Ghulam All while Murad Ali fired at Ghulam All and All Jan with pistol which hit them. Witnesses did not go near due to fear. Appellants went away firing in the air. Witnesses went near and found All Jan and Ghulam Ali lying dead. Now the above narration shows that All Jan was fired in the face and received second shot from the pistol while Ghulam All received three shots from Ahmed, Hyder and Murad Ali. Facts stated in F.I.R. Are belied by medical evidence which shows that All Jan did not receive any fire-arm injury on his face but received two entry wounds on the right shoulder and back side of the chest and one exit wound on the back of right shoulder. Deceased Ghulam Ali sustained only one fire-arm injury with wound of entry and exit, on the head. Post-mortem report of Muhammad Umer shows that he sustained one fire-arm injury on the head giving lie to the claim in F.I.R. That all the four appellants fired at Umer. This is how the beginning is made of the prosecution case. ' When complainant Gui Muhammad appeared in the trial Court for giving his evidence, he changed version of the incident and cutting it short deposed that Ali Bux fired at All Jan and Ahmad had fired at Ghulam Ali. That was the end of the story with all those complicated details as to who fired at whom and how many shots were fired and a very simple and short story was given to bring it in conformity with medical evidence but even in that attempt the complainant has failed. Complainant also made poor attempt in changing the version of second incident to the extent that he confirmed again that P.Ws. Peroz and Noor Muhammad informed him that all the four appellants murdered Umer, who was grazing cattle in the North of Otak at a distance of 3 blocks but made two other modifications. Firstly that one Khair Muhammad tried to rescue Umer and he was given blows and secondly that Umer was shot at by means of pistol. No mention was made about injured eye-witness Khair Muhammad in F.I.R. This fact was specifically mentioned in the trial Court that Umer received injury by means o pistol because according to medical evidence Umer had sustained injury from one shot of fire-arm falsifying the claim in F.I.R. That all the four appellants fired at Umer. Complainant in his cross-examination before the trial Court was at pains in explaining inconsistencies in his evidence. He deposed that on the day of incident he arrived at Otak at 12 noon and was the last one to have arrived. All other eye-witnesse and deceased persons were already sitting there. About one hour after his arrival the incident took place which means that incident took place at about 1 p.m. But F.I.R. Shows that incident took place at 3-30 p.m. Complainant further stated that he had given to P.S. In Datsun Car and brought police to the Wardat in Datsun Car. In that case even if police station was 10 miles away that distance could be covered in a car in less than one hour. Now if incident took place at 1 p.m. Then F.I.R. Should have been lodged before 2 p.m. And if incident took place at 3-30 p.m. Then F.I.R. Should have been registered before 4-30 p.m. When pressed further in this context in the cross-examination, complainant became more vague and stated that he did not remember how long police remained at the Wardat. Police went back from the Wardat in the evening. He could not say at what time, Ghulam All and All Jan came to the Otak. He could not say after how much time Muhammad Hassan, Muhammad Sharif and Muhammad Rahim came to the Otak after they arrived. Previously he had stated that he was the last one to arrive at the Otak. Complainant could not say at what time Ghulam All and Ali Jan took lunch prior to the incident. He further stated that he would not be able to say at what time he and others took lunch before the incident. It would be pertinent to mention here that post-mortem reports of All Jan and Ghulam All show that stomaches of deceased persons contained semi-digested food. Complainant is very closely related to the deceased persons and had stated in his evidence that at the time of incident they all lived together on their lands. Now if complainant was present at the time of incident he should be able to explain at what time he and deceased persons took lunch because as members of the family, they were supposed to have taken lunch together. Complainant is also not expected to be vague about other details. He further deposed that he and others were in the Otak when shots were fired
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at deceased persons from a distance 8/10 paces. He did not remember how many shots were fired at Ghulam Ali. He did not remember having stated in F.I.R. That three persons had fired at Ghulam Ali. He also did not remember if he had stated in F.I.R. That Peroz and Noor Muhammad had informed him that all the four appellants had fired at Elmer with guns and pistol. Complainant further stated in his cross-examination before the trial Court that dead bodies were buried on the next day at 11 a.m. And thereafter police called him at the police station and took his signature on that day. From this admission, an inference can be drawn that F.I.R. Was drawn up subsequently and signed by the complainant on the following day of the incident. Complainant also stated in his evidence that on the day of incident P.Ws. Muhammad Hassan, Muhammad Rahim and Sharif had come to the Otak for chit-chat and they had talked about holding Khairat in respect of his uncle Muhammad Shafi who had died. ' P.W. 2 Muhammad Rahim is second eye-witness of the first incident. He has given evidence in the trial Court exactly on the same lines as evidence of complainant with same improvements on previous version. He deposed that Ali Bux fired at Ali Jan and Ahmad fired at Ghulam All and both Ali Jan and Ghulam Ali died at the spot. He did not state about firing in the air, he could not explain how Ali Jan sustained injuries from two shots of fire-arm. This witness further deposed that P.Ws. Peroz and Noor Muhammad came to the Otak and informed that appellants had murdered timer. He further deposed that he heard that a blow was given to Khair Muhammad at the time of second incident. In the cross-examination this witness stated that complainant brought police to the Wardat at sunset time. About 20 persons had arrived at the Otak before arrival of police. Persons residing near Wardat came on reports gunfire, while others might have come after hearing the news of incident. This witness further informed that he informed those persons about the incident and gave names of assailants. He did not know whether police enquired from those persons about the incident. Police only saw dead bodies and took them away. Police went back after sunset. This witness further deposed that be, Sharif, Gul Muhammad, Hashim, Noor Muhammad, Khair Muhammad and all other P.Ws. Were called by police to the police station on the next day and their signatures were obtained. Police also recorded and read over statements to them. This witness further categorically stated that F.I.R. Was read over to the complainant on the next day. This witness admitted having stated in his 161 and 164, Cr.P.C. Statements that three persons fired straight at Ghulam Ali (first version of first incident). He further stated that he had come to the Otak about 21 hours prior to the incident. They did not take meals in the Otak. He had gone to the Otak to take rest and have chit-chat. They did not talk about anything in particular Peroz and Noor Muhammad came to the Otak and informed about death of Umer about one hour after the first incident. All Jan and Ghulam Ali were fired at from the distance of 10 paces. There were two or three cots in the Otak. Some of them were sitting on the cots and others on the mat. This witness further stated that Ali Jan was sitting on the cot and for others he could not say. During the cross- examination of this witness learned trial Judge appended an observation that in spite of repeated warnings this witness was not prepared to answer the question put to him by the learned counsel. ' P.W. 3 Muhammad Sharif is eye-witness of the first part of the incident and he gave evidence in the Court on the same lines as that of complainant, to the extent of near perfection. He deposed before the trial Court that he came to the Otak on the day of incident at 12 noon and at that time all were sitting excepting complainant, who was the last one to arrive. He contradicted complainant by saying that there was no special talk on that day. Complainant had stated before , the trial Court that they had talked about holding Khairat in respect of his uncle Shafi Muhammad who had died. This witness Muhammad Sharif further deposed before the trial Court that he could not say who were sitting on the cots, and who were sitting on the mat. All of them were sitting 10/12 feet away from each other, none of the witnesses was hit by any pellet. Ali Jan was fired at twice, Ghulam All was fired at twice but he had received only one fire-arm injury. This witness admitted
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having stated in police and 164, Cr.P.C. Statements that deceased All Jan was fired at only once whereas three persons had fired at deceased Ghulam Ali. He further stated that they had also taken lunch but did not clarify further as to where and with whom. He had earlier stated in his deposition that he had come to the Otak on the day of incident at 12 noon. He deposed that Peroz and Noor Muhammad informed them that in the second incident Khair Muhammad was given blow with back side of hatchet. At the very outset of his examination-inchief this witness stated that all appellants had guns except Ahmad who had country made pistol. To this extent he had contradicted all other eye-witnesses of the first incident who claimed that all appellants had guns except Murad Ali who was armed with country made pistol. In the evidence of this witness there is observation of the trial Court with regard to his demeanour that in spite of repeated warnings, this witness was not answering questions and was not telling the truth and was indulging in cross- arguments with counsel as well as trial Court. ' The last eye-witness of the first incident is P.W.7 Muhammad Hassan. In the very examination-in- chief this witness before the trial Court made a starting disclosure and contradicted all other eye- witnesses of the first incident by stating that all appellants were armed with guns except Murad Ali who was armed with a pistol and further appellant Ahmad was armed with .Gun as well as hatchet. Now this claim on the face of it appears to be absurd for the reason that if Ahmad had gun in one hand and hatchet in the other then he could not fire the gun unless it is claimed that he put aside the hatchet and used both hands to fire the gun and then took back the hatchet in hand but nobody says so. The anxiety of this witness is understandable for the reaso as stated above that he is very closely related to all the three decease persons and wanted to bring his evidence in conformity with the lates c version of incident agreed upon. This witness was examined as P.W. ' when before him P.W. 3 Muhammad Sharif eye-witness of the first part of incident introduced hatchet in his evidence and stated that Khair Muhammad was given blow with hatchet in the second incident. Not only this but three eye-witnesses of the second incident were examined in the trial Court prior to the examination of this witness and they had specifically mentioned this fact that Ahmad was armed with a gun and hatchet. In these circumstances this witness felt emboldened to make improvement on his own first ocular version of the first incident. Like other three eye-witnesses he deposed that All Bux fired at Ali Jan and Ahmad had fired at Ghulam Ali. In the cross-examination this witness admitted having stated in his 161 and 164, Cr.P.C. Statements that three persons had fired at Ghulam Ali. He testified before the trial Court that after the incident 30/40 persons had come to the place of Wardat on hearing reports of gun fire. Appellants had fired 20/25 shots, there were two or three cots lying in the Otak. He could not say who were sitting on the cots. Noor Muhammad Peroz and complainant Gui muhammad brought dead body of his son Umer at the Otak after li hours of the first incident. This witness denied having stated in his 161 and 164, Cr.P.C. Statements that P.Ws. Peroz and Noor Muhammad had informed them that all the four assailants fired with their guns and pistol at Umer. P.W. 13 S.H.O. Ghous Bux has confirmed contradiction in the police statement of this witness. 164, Cr.P.C. Statement on the record shows that first Ahmad gave hatchet blow to Khair Muhammad and then all the four assailants took away Umer towards land of Ali Bux where all fired at him and ran away. Now we pause here to assess the evidence of these four most important wit.-4esses, who claim to have been first incident in the Otak. It is very clear from the narration in their evidence that they have failed to give convincing story of incident inspiring confidence to say that they have seen the incident and have spoken the truth. These witnesses have improved upon the first version of incident, which was inconsistent with medical reports, and tried in vain to make additions and alterations in the story of incident, which instead of helping them has further exposed them as persons who have not seen the incident or who have no sanctity for truth. They have spoken lies with impunity. They have contradicted each other and admitted having made discrepant
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statements. Apart from what is stated by these eye-witnesses there are other inherent improbabilities, which render these eye-witnesses as not worthy of reliance. ' Firstly medical evidence is in direct conflict with the every first 11Eversion of incident reflected in F.I.R. P.W. 10 Doctor Imtiaz Al" performed post-mortem examinations on the dead bodies of Ali Jan,…
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