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Petitioner: WALOO AND 5 Other VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Safdar Shah Title: WALOO AND 5 Other vs THE STATE Case No.: Criminal Appeal No. 473 and Confirmation Case No. 64 of 1968 Date of Judgment:- Reported As: PLD 1970 Karachi 677 Result: Q.
JUDGMENT
JUDGMENT MUHAMMAD HAYAT JUNEJO, J.----By this appeal appellants Waloo alias Wali Mohammad son of Pathan, Brahmani, aged 35 years. Allahdino son of A.I Sher Bhand aged 28 years, Imamuddin son of Yousuf Bhand aged 25 years, Rano son of Ramzan Brahmani aged 30 years, Beero son of Mahmood Leghari aged 25 years, and Buxal son of Saleh Bband aged 20 years have challenged the judgment dated 18-11-1968 of the learned Sessions Judge, Dadu, whereby the learned Judge convicted and sentenced them as follows :- ---Appellants Nos. 1 and 2, namely, Waloo alias Wali Muhammad and Allahdino have been convicted under sections 302. 307/149 and 148, P. P. C. And sentenced to death, R. I. For one year and R. I. For one year respectively. In addition appellant Waloo has been further convicted under section 13(D) of the West Pakistan Arms Ordinance, and sentenced to R. I. For one year. The remaining four appellants, namely, Imamuddin, Rano, Beero and Buxal have been convicted under sections 302/149, 307/149 and 148, P. P. C. And sentenced to transportation for life, R. I. For one year and R. I. For one year respectively; all the sentences to run concurrently.--- As the matter has also been referred to us under section 374, Cr. P. C. For confirmation of the sentences of death awarded to Waloo alias Wali Mohammad and Allahdino, we shall dispose of both the appeal as well as the murder reference by this judgment. 2. Appellants Allahdino, Imamuddin 4nd Buxal are Bhands by case. They are closely related inter se and reside in village Minhoon Bhand, Taluka Dadu. Appellants Waloo and Rano are also closely related inter se but they are Brahmani by case and reside in village Shahdan, Taluka Johi. The remaining appellant, namely, Beero who is Leghari by case and said to be a friend of the other five, resides in village Nazam, Taluka Khairpur Nathan Shah, District Dadu.
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3. About 1-- years before the present occurrence one Sharif Bhand, who was cousin of appellant Allahdino, brother of appellant Imamuddin and uncle of appellant Buxal was murdered and one Hussain Brahmani who was brother of appellant Rano and nephew of appellant Waloo alias Wali Mohammad was also killed in the same incident. Deceased A.I Nawaz, his brother Jam, and their two nephews, namely, Kirir and Khan were prosecuted for these murders but they were acquitted about 8 months before this occurrence. The two groups of Brahmani and Bhand appellants mentioned above, therefore made a common cause to avenge the murders of Sharif Bhand and Hussain Brahmani. Appellant Beero also joined them as he was their friend. 4. On 23-4-1966, the two deceased persons, namely, A.I Nawaz and Buxialah left their village in the morning alongwith complainant Jam. They were coming to Dadu. When they were just a short distance away from the Dadu Railway Station, complainant Jam, P. W. 2 went aside to urinate, while his two brothers proceeded further. Shortly thereafter at about 10-15 a.m. The complainant heard gun reports and saw that appellants Waloo and Allahdino had fired at his two deceased brothers, who both fell down. The other four appellants, who accompanied Waloo and Allahdino were all armed with hatchets. The complainant raised cries and ran towards west in the direction of railway police station which was only about 100 paces away from him. On hearing the gun reports, Abdur Rehman, Head Muharir, at the Railway Police Station Dadu asked P. W. Ghulam Abbas Police Constable on duty to go and see as to what had happened. Ghulam Abbas went and came back after 2-3 minutes. He informed the Head Muharir that two persons had been killed and the assailants, of whom two were armed with guns, were running towards South. On getting this information, P. W. Abdur Rehman gave rifles to Police Constables Ghulam Abbas, Mahmood Shah and Mohammad Ashraf and asked them to chase the culprits. P. W. Nasir, another Police constable who had also just got down from Larkana Express which was at the Dadu Railway Station Platform then, was also asked to join others in the chase. He was already armed with a rifle. Abdur Rehman, Head Constable rang up his S. H. O. P. W. Shafi Mohammad who was at that time at the Civil Hospital to convey the information to him and he also informed S. H. O. Mohammad Ibrahim of town Police Station Dadu on telephone. He then made the following entry in the station diary at about 10-30 p. m. :- ---It is shown and written that gun reports were heard from the side of the Bungalow of the Platier Sahib at 10-30. I sent duty constable Ghulam Abbas to see what is about that who went and returned immediately and reported that murders have been committed and culprits are running away. In the meanwhile travelling constable of train viz. Nasiruddin No. 81 and Muhammad Hassan No. 189 also came at police station, where Head Constable Mahmood Shah, Head Constable Asbraf were also present in their private dresses. I gave arms to them alongwith constable Hassan Askri and asked them to pursue the culprits. I sent constable Muhammad Hassan 189 to keep watch over the dead bodies. I heard the sound of the gun reports, gave such information on phone to S. H. O. Town Dadu, immediately. I also informed my S. H. O. By phone in the Hospital. (Sd.) Abdul Rehman. . . W. H. C.--- 5. After recording this information (Exh. 28) Head Constable Abdur Rehman, went to the scene of occurrence and found both Nawaz A.I and Buxali lying dead. In the meantime, S. H. O. Mohammad Ibrahim of Dadu Town Police Station, Police Inspector Inamul Haq and Incharge Superintendent of Police Dadu District also reached the wardat. They enquired from Head Constable Abdur Rehman about the direction in which the assailants had gone and on the latter's information S. P. Also went towards South along with his subordinate police officers including S. H. O. Shafi Mohammad. 6. P. W. Jam who had witnessed the ghastly murder of his two brothers, first followed the railway police constables in chasing the assailants ; but after sometime he came back to the scene where he found both his brothers lying dead in pools of blood. Six empty cartridges and two pairs of slippers which the assailants had left behind were also lying at the scene of occurrence. P. W. Jam,
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thereafter rushed to Dadu Town Police Station where he lodged his First Information Report, Exh. 7, the same morning at I1-00 a. m. It was recorded by P. W. 14, Head Constable Mohammad Yousuf and was to the following effect :- ---Complainant complains that I am residing near the village Minhoon Bhand. We are in all four brothers. Today in the morning I and each one A.I Nawaz and Buxali all the three brothers were coming together to Dadu with our own private work, when we reached near the Bungalow of Railway Platier Sahib I sat down for urinating and my brothers went towards Dadu on the Northern side. They had their licensed guns on their shoulders. When they were at the distance of 30-40 paces, I heard the gun shots. I immediately got up and I saw each one of accused Allahdino Bhand, and Waloo Bhand who had guns in their hands and Rano Brihmani, Beero Leghari, Buxal Bhand and Imamuddin Bhand had hatchets in their hands and Allahdino Bhand and Waloo Bhand were firing gun shots at my brothers Buxali and Nawaz A.I who fell down on account of receiving gun shots. I raised cries and ran towards the Railway Police Station. I saw that four/five persons of Railway Police Station with guns went running towards them for chasing the accused and on seeing them, the above-named accused went running towards the South and police also pursued them. When the Police pursued them Allahdino and Waloo fired gun shots at police and police also fired shots at the accused. But the police went after them. I returned to my brothers and saw that both of them hall expired. They had gun shot injuries on their hearts and back. After a while police also came and they went after the, accused. I have left the railway police at the corpse, and have come to lodge a report empty cartridges which were fired from guns were also lying there. Two pairs of slippers of the accused are also lying there. The gun of my brother Buxali has been broken from butt end and it is also lying there. The above accused have murdered my two brothers and for reason that about 11 years ago, the cousin of accused Allahdino, and brother of accused Imamud--din and maternal uncle of accused Buxal, Sharif Bhand and nephew of Waloo and Rano Brihmanies who was brother of Hussain Brihmani both of them were murdered together and whose complaint was filed at Police Station Dadu, against me and my brother Nawaz A.I and nephew Kirir and Khan. We were challaned but about 8 months ago, the above accused were acquitted from Sessions Court. On account of that revenge my brothers have been murdered. I am the com-- plainant. Justice be done." 7. After recording the First Information Report Head Constable Mohammad Yousuf left for the scene of offence. Shortly, thereafter P.W.11 A.S.I.P. Hardan Puri who had initially joined his superior officers in chasing the culprits returned to the spot to carry on investigations. At the wardat A.S.I.P. Hardanpuri found the dead body of Nawaz A.I and Buxali. He secured six empty cartridges, two of which were lying near the dead body of Buxali and the other two about 10 paces away from the corpse of deceased Nawaz A.I. Two pairs of slippers which were left behind by the assailants were also lying there and were secured by the A.S.I.P, who sealed the six empties and the slippers and prepared a mashirnama of the wardat in presence of mashirs Muhammad Parial and Murad A.I Khokar. The dead bodies of Nawaz A.I and Buxali were sent to the Civil Hospital for post--mortem examination. 8. While this investigation was being conducted at the wardat the assailants were being continuously chased by the Railway Police Constables followed by S. H. O. Shafi Muhammad of Railway Police Station, S.H.O. Mohammad Ibrahim of Town Police Station Dadu and his superior officers, namely, the Sub-Divisional Inspector of Police and Superintendent of Police, Dadu. After an encounter with them on the way, near the garden of one Najamuddin about one furlong away from the scene of occurrence. The police party followed the assailants right up to the village of Bhands, where they had taken shelter in a house belong--ing to one Yousuf Bhand. The police party surrounded the house and repeatedly asked them to come out, but without any result. The police thereafter entered the compound of the house and found the door of the room bolted from inside. They knocked the door which was ultimately opened and they found all the six appellants inside
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the room with their respective weapons. Appellant Waloo alias Wali Mohammad had a single- barrel gun No. 53723 and 7 cartridges while Allahdino had a double-barrel gun No. 109613 and 12 cartridges. These were smelling of gun powder and appeared to have been freshly fired. S. H. O. Mohammad Ibrahim secured the same and sealed them on the spot. He also secured a hatchet each from the remaining four appellants. The S. H. O. Sent one of his Head Constables to arrange for mashirs but as the latter could not secure any in this village of Bhands, S. H. O. Shad Mohammad of Railway Police and Head constable Ahmed Gul acted as mashirs for the recoveries vide mashirnama Exh. 33. 9. S. I3. O. Mohammad Ibrahim arrested the six appellants and recorded the statements of P. Ws. Abdur Rehman, Nasiruddin, Mahmood Shah, Ghulam Abbas, Shafi Mohammad and others. Thereafter he visited the place of encounter with the appellants which was about 2J miles away from their village and at a distance of one furlong from the scene of occurrence which was near Dadu Railway Station. He secured three empty cartridges of .12 bore from this place (Articles C/7 to C/9) of encounter and prepared a Mashirnama thereof as Exh. 31. The empties were also sealed at the spot. S. H. O. Mohammad Ibrahim thereafter returned to the scene of occurrence and verified the investigations. On 30-5-1966, the two pairs of slippers left by the assailants which were secured from and sealed at the wardat were produced before P. W. Lutif A.I Butt, III Class Magistrate, who arranged a "wearing test" by trying the two slippers on the feet of all the accused. According to the evidence of the Magistrate and the mashirnama of the test, Exh. 22, the two pairs fitted appellants Allahdino and Buxal respectively. 10. The two guns recovered from appellants Waloo and Allahdino as well as the empties recovered both from the scene of occurrence (C/1 to C/6) and the place of encounter (C/7 to C/9) were sent to the Ballistic Expert, Ghulam Abbas, P. W. 2 whose evidence showed that crime empties C/1, C/4 and C/9 had been fired from S. B. Gun No. 53723 which was secured from appellant Waloo. According to the Ballistic Expert, crime empties C/3, C/5 and C/7 had been fired from the right barrel of D. B. Gun No. 109613 while crime empties C/7. C/6 and C/8 were fired from the left barrel of the same gun which was a licensed gun standing in the name of appellant Allahdino and was actually secured from him after a chase soon after the occurrence. After the usual investigations were concluded the appellants were challaned on 2-6-1966. 11. The evidence of Dr. Abdul Ghafoor, Resident Medical Officer, Civil Hospital, Dadu, who conducted the post-mortem examination on the dead bodies of two deceased persons showed that Buxali deceased had the following injuries on his person :- "(1) Gun shot wound 1--" in diameter at the back of left ear pinna, destroying lower 2/3 part of pinna, and 1/3 attached, going through internal meatus destroying the internal ear bones going upwards to them fracturing mastoid and temporal bones into pieces, destroying middle cranial fossa, destroying brain substance (Cerebrum) and fracturing left front-parietal bones and destroying vessels of the left eye-ball, fracturing left upper jaw at the temporo-mandibular joint. (2) Lacerated gun shot wound --" in diameter deep to muscles grazing the muscles destroying superficial blood vessels at Thenar eminence of the left hand. (3) There are two abrasions at the distance of --" one abrasion --" x --" and second one --" x --" at the left shoulder joint. (4) Oblique gun shot wound --" diameter 2--" below right nipple going upwards through the left side, fracturing 4th and 5th rib destroying muscles going outside, margins inverted (wound of entrance). (5) Three gun shot lacerated wounds, two of them are below the left nipple at the distance of --" and third --" below the 2nd over heart region. First two, --" in diameter deep to muscles. Third --" in diameter deep to muscles. Margins averted (wound of exit)."
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Injury No. 1 was individually sufficient to cause death in the ordinary course of nature. All these injuries appeared to have been caused by discharge from fire-arms and were the result of the two shots fired from a distance of more than 6 feet. The death must have been instantaneous. The stomach of the deceased contained semi-digested food. 12. The autopsy on deceased Nawaz A.I's dead body revealed the following injuries "(1) Gun shot wound 1" in diameter on the occipital region of the skull with inverted margins, fracturing occipital bone and destroying brain substance. (2) Lacerated gun shot wound 7" x 5 --" x 6--" multiple fractures of facial and frontal bones destroying brain substance and communicating with injury No. 1. (3) Gun shot wound lacerated 2" x 1--" x deep to bone fracturing bone and destroying muscles on the upper 1/3 of the right upper arm anterior medical. (4) Gun shot exit wound 4" x 2--" x deep to bone resulting destruction of muscles and fracture of bone, surrounding of it is congested and adjoining tissues are damaged. Margins are inverted. It is communicating to injury No. 3. (5) Distal ends of the middle and index fingers of left hand are destroyed. (6) Gun shot wound --" in diameter deep to chest cavity, margins of it are inverted skin around it is congested and clotted blood is coming out through the wound :- Side-on the right side of the middle of the back (lower thorace region.) (7) Gun shot wound --" x --" on the upper portion of areola, margins are inverted. This is communicating with injury No. 6." Injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature. The injuries could be the result of more than one shot fired from a distance of more than six feet. The death must have been instantaneous. 13. The defence of the appellants was one of denial and false implication on account of enmity. Appellant Waloo alias Wali Mohammad stated before the committing Magistrate that he was arrested along with Rano from the hotel of one Shafi Punjabi at Khairpur Nathan Shah Town in presence of Shafi Punjabi at one Akk Lund. This defence was, however, abandoned by him at the trial where he contended himself by a bare denial of the prosecution case. He, however, produced five certified copies of applications and complaints to show firstly, that he and his relations had enmity with complainant Jam and secondly, that besides them the two deceased persons and complainant Jam had other enemies as well. 14. The remaining five appellants also confined their defence to one of denial and false implication on account of enmity. They further stated that they were all arrested from their respective villages. 15. The evidence led by the prosecution as against the appellants may be divided under six main heads, namely ----- (a) direct ocular evidence of P. W. Jam ; (b) evidence of Railway Police Constables P. W. 5 Mahmood Shah, P. W. 6 Ghulam Abbas, and P. W. 8 Nasiruddin who chased the appellants ; (c) evidence of police officers, namely Shafi Mohammad S. H. O. Railway Police, Abdur Rehman, P. W. 9 and S. H. O. Mohammad Ibrahim, P. W. 15 who followed the Railway Police Constables and subsequently apprehended the appellants who had taken shelter in the house of one Yousuf in Bhand village ; (d) the circumstantial evidence regarding all the appellants, who belonged to different villages, being found together and thereafter being captured from the same house after a hot chase ; (e) the recovery of a hatchet each from appellants Imamud--din, Rano, Beero and Buxal and two guns from appellants Waloo and Allahdino coupled with the evidence of the Ballistic Expert, Ghulam Abbas to the effect that the empties recovered from the scene of occurrence as well as
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the place of encounter, one furlong away therefrom, appeared to have been fired from both these guns; and (f)the evidence of motive. 16. The direct ocular evidence consists of the testimony of P. W. 2 Jam which was substantially in accordance with his First Information Report Exh. 7, reproduced in paragraph 6 above and, therefore, need not be repeated. 17. Mr. A. K. Brohi, the learned counsel appearing for the appellants before us has contended that P. W. Jam could not have witnessed the occurrence but was summoned subsequently after the out- rage. To substantiate this contention the learned counsel '.Aid great stress on the fact that the assailants had an equally strong motive to murder P. W. Jam and, therefore they would not have spared him if he had been with his two brothers at the time of the occurrence. A reference to the sketch of wardat, Exh. 11, may be useful in this connection. It shows that deceased Buxali was fired at when he was at point 'A' while deceased Nawaz A.I's corpse was found at point 'B' which is 127 feet away from point `A'. At the time of firing P. W. Jam was at point 'E' which is at a distance of 132 feet from point 'A'. The assailants were at points 'F' and 'C' which are near points 'A' and 'B' respectively; while point 'F' is situated in a completely different direction. The assailants had only two guns and they could not simultaneously fire at more than two persons. As both the deceased persons were carrying their guns with themselves they had naturally to be the first target. If one of the assailants had instead directed his attention at Jam, one of his deceased brothers could have easily retaliated. To safeguard against that eventuality, the two deceased persons were selected as the target of attack. Moreover, the location of the place of occurrence as well as the time of the incident was such that the assailants could not risk waiting even a moment longer after they had finished the two deceased brothers of P. W. Jam and thereby made themselves conspicuous. They had also avenged the two murders of their relations. For these reasons it would not be proper to disbelieve P. W. Jam only because he was not attacked by the assailants. 18. The learned counsel for the appellants has also emphasised the fact that when P. W. Jam's two brothers were both carrying guns, Jam would not venture to go out unarmed. This has been explained by P. W. Jam himself, who stated that he did not have a licence for any fire-arm. Moreover, he was in the company of his two brothers who were both carrying their guns which under the ordinary circumstances would afford sufficient protection. There is, accordingly nothing extraordinary if the witness accompanied his two brothers without himself carrying any weapon. 19. P. W. Jam's presence is also confirmed by the evidence of Railway Constable Ghulam Abbas. We shall refer to his evidence later, but would like to mention here that he identified P. W. Jam in Court to be the same person who was seen by him crying immediately after the occurrence and saying that the murderers were running away. We find no reason to disbelieve his evidence on this point. Moreover, the circumstance that P. W. Jam lodged his First Information Report, Exh. 7, at 11-00 a.m. Within 45 minutes of the occurrence, also establishes his presence at the time of the incident. All the six appellants as well as the motive for the offence are mentioned in the F. I. R. And we consider it as strong corroboration of the testimony of P. W. Jam. 20. Realizing the importance of this document Mr. Brohi has contended that Exh. 7, would not be admissible as the information relating to the murders was already incorporated in the diary of Railway Police Station as Exh. 28, a telephone message about the incident was also sent to the Dadu Town Police Station by Head Muharir Abdur Rehman which was recorded in the Roznamcha at Dadu Police Station as entry No. 8 (Exh. 46). We, however, cannot agree with this contention of the learned counsel. An entry in the Roznamcha does not comply with the provisions of section 154, Cr. P. C. And cannot be deemed to be the First Information Report of a cognizable offence. In this connection we may with advantage refer to a judgment of a Division Bench of this Court in the case of Mohammad Afzal v. The State (PLD 1960 Lah. 97) wherein it was observed as follows :-
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"Exh. P. O/1 is an unsigned telephonic message. It is, there--fore, not a first information report within the meaning of section 154 of the Code of Criminal Procedure which reads as follows ---Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the local Government may prescribe in this behalf.--- Only information complying with the provisions of this section constitutes what is known as the first information report. The entry in the Roznamcha Exh. P. O/1 does not conform to the provisions of this section. Head Constable Sardar Khan, who obtained the information, was not incharge of the police station. The record of the information in the Roznamcha does not show that it was read over to Major Hamid. It was not signed by Major Hamid. Moreover, it was not entered in the book prescribed by the Provincial Government for the purpose of recording first information reports. In Ahman v. Emperor (AIR 1938 Lah. 787) it was held that an entry made by a Sub-Inspector in the daily diary of the police station is not a first information report. The question whether an unsigned telegram and telephonic message are first information reports, within the meaning of section 154 of the Code of Criminal Procedure, was considered by a Division Bench of the Lahore High Court, in Crown v. Faiz Muhammad (PLD 1952 Lah. 215) and their Lordships observed :- ---Unsigned telegram and…
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