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Petitioner: GHULAM HYDER VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Salahuddin Mirza Title: GHULAM HYDER vs THE STATE Case No.: Criminal Appeal No.43 of 1989 and Criminal S.M. Revision No.28 of 1989 Date of Judgment:1990-11-15 Reported As: 1991 P Cr. L J 471 Result: Order accordingly
JUDGMENT
JUDGMENT SAL AHUDDIN MIRZA, J.---The appellant was tried by learned 1Additional Sessions Judge Karachi West under sections 302, 201 and 364, P.P.C. And vide impugned judgment dated 13-3-1989 was found guilty under all the three counts and sentenced as follows:-- (a) imprisonment for life and a fine of Rs.1,000 or R.I. For six months in lieu of fine under section 302, P.P.C. '' (b) Imprisonment for life and a fine of Rs.1,000 or R.I. For six months in lieu of fine under section 364, P.P.C.. (c) R.I. For seven years and fine of Rs.1,000 or, further R.I. For six months in lieu of fine under section 201, P.P.C. All the substantive sentences were to run concurrently and the appellant was also held entitled to the benefit of section 382-B, Cr.P.C. In this judgment we propose to dispose of appeal of the appellant as well as suo motu revision for enhancement of sentence under section 302, P.P.C. To that of death. The F.I.R. Of the case (Crime No.157/83 of Police Station Baldia Town of District Karachi) was recorded at the instance of Muhammad Ramzan, father of the deceased, on 13-9- 1983 at 04-25 hours. According to the F.I.R., the complainant returned to his house on 8-9-1983 at about 22-00 hours and found his son Muhammad Yousuf aged about 12 or 13 years missing from the house and on enquiry his stepson Muhammad Hassan's were Mst. Soomri informed him that appellant Ghulam Haider (son of complainant's sister) had come in the morning at about 10-00 a.m. And he and Muhammad Yousuf both had gone out together and since then Yousuf had not come back. Complainant Muhammad Ramzan then enquired from Ghulam Haider, who lived nearby, and the latter replied that he and Yousuf had gone to Mach Goth to see Ghulam Haider'sst
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house and there he had given Rs.100 to Yousuf to purchase Pan and Cigarettes, but Muhammad Yousuf simply disappeared after taking the money and did not come back. Ghulam Haider conjectured that Yousuf might have gone to Lesbela. The complainant then went to Lesbella the next morning (9-9-1983) where Moula Bux, son of complainant's brother, lived but Moula Bux informed that Yousuf had not come there. After searching for Yousuf in Lesbella, the complainant returned to his home in the night. By that time other relatives had lodged report with the police about the missing of Yousuf. The complainant and other relatives continued searching for Yousuf and, in the end, their suspicion was diverted against Ghulam Haider. On 13-9-1983 the complainant, his brother Muhammad Hashim, Muhammad Umer, Abdul Majeed, Abdullah, Karim Bux and Khamiso forced Ghulam Haider to go with them to Ghulam Haider's house at Mach Goth. A bad smell came out from the house as soon as the door of the house was opened. On entering the house, they saw a mat lying on the ground and when it was removed, soft earth was found underneath, which suggested that the floor was dug and later on filled with loose earth. The complainant and the party then dug out the loose earth and found the dead body of Yousuf lying there. They again covered the dead body with the loose earth, caught hold of appellant Ghulam Haider and brought him to the police station, where complainant Muhammad Ramzan lodged the F.I.R. 2. As would appear from the narration of the prosecution case as given in the F.I.R. And reproduced above, there is no eye-witness of the incident and the case of the prosecution exclusively rests on the circumstantial evidence. P.W.1 Muhammad Ramzan, the complainant, is father of the deceased and maternal---uncle of the appellant. In his examination-in-chief, he has repeated the facts as given by him in the F.I.R. He has, however, also given some additional details. For example, he stated that when he and others expressed their doubts on the appellant and asked him to go with them to his house in Mach Goth, the appellant first refused to do so and even tried to run away from the house, but he was prevented from doing so by all those who were present around him. It may be noted that the complainant and the appellant being close relatives lived in almost adjacent houses. The appellant was then forced to go with them to his house in the Mach Goth. In this expedition, besides the complainant and the appellant, Abdul Majeed, Khamiso, Muhammad Umer, Karim Bux and complainant's brother Muhammad Hashim also took part. After reaching the house of the appellant, the party asked the appellant to open the door of his house so that it maybe searched, but the appellant refused to open it. By that time Mst. Razya niece of the appellant and maternal-grand daughter of the complainant, and Mst. Saleema, who both lived in Mach Goth, also joined the complainant. On being pressed to open the house, the appellant claimed that he had no key but was eventually prevailed upon to take out the key from the fold of his Shalwar and to open the door of his house. In the house, they found a cot under which there was a mat lying on the floor and when the mat was removed loose earth was found which was dug and the dead body of Yousuf was found which was buried there. The complainant further stated that when they reprimanded the appellant, he said that Muhammad Ramzan, the complainant, was instrumental in the divorce of his sister (the mother of the appellant) and that appellant's father was actually not willing to give divorce and he (the appellant) was annoyed over this divorce and in order to take revenge from Muhammad Ramzan he (the appellant) had murdered Yousuf. It may be noted that this divorce had taken place about eight years prior to the incident. In cross-examination, he conceded that there was no previous enmity between him and the appellant. P.W.2 Muhammad Hashim is brother of the complainant. He is thus the other maternal-uncle of the appellant and paternal-uncle of the deceased. He fully supports the version of the complainant. P.W.3 Mst. Razya is the resident of Mach Goth where the house of the appellant is located from where the dead body of Yousuf was recovered. She is niece of the appellant and maternal-grand-daughter of the complainant. She testified that on 8-9-1983 the appellant and deceased Muhammad Yousuf came
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to her house at about 11-00 a.m. And the appellant asked her to prepare lunch for him and Yousuf and then both, the appellant and deceased Yousuf, went to appellant's house and at about 1-00 p.m. Appellant alone came to her to fetch the food which she had already prepared by then and the appellant took it to his house. Mst. Razya further stated that Yousuf and Ghulam Haider then came to her house after some time and gave back to her the utensils in which she had given the food and thereafter they went away. Mst. Razya further stated that thereafter she and her mother- in-law Mst. Saleema, whom she described as her mother, went to attend a marriage and when they returned from there they found that the house of Ghulam Haider was locked. She further stated that the next morning at about 6-00 a.m. Complainant Muhammad Ramzan came to her house and made enquiries about Yousuf and she informed him as to what had happened the previous day. She also stated that after four days, complainant Ramzan, Khamiso, Muhammad Umer, Abdullah and Muhammad Hashim came to her village at about 1-00 a.m. (mid-night) alongwith appellant Ghulam Haider and went to Ghulam Haider's house. She further stated that she and her mother-in-law Mst. Saleema also went to the house of the appellant and she testified to the refusal of the appellant to open the lock of his house and about appellant's saying that he had lost the key which was eventually recovered from the fold of his Shalwar and the door of the house was opened. She is the eye-witness of the digging of the loose earth from the floor of the house and the recovery of the dead body of Yousuf from it and of the explanation given by the appellant for committing the offence. P.W.4 Mst. Soomri is daughter-in-law of the complainant whose son Hassan is her husband. She, her husband Hassan and Abdullah, Khamiso, Muhammad Hashim, Muhammad Umer and complainant Muhammad Ramzan and deceased Yousuf all lived in the same house. Her evidence is that at about 10 in the morning appellant Ghulam Haider came in the house where she and deceased Yousuf were sitting and appellant Ghulam Haider asked deceased Yousuf to go with him to village Mach Goth where he had an under-construction house. According to her, the appellant told Yousuf that they would take lunch at Mach Goth and would return after seeing the 6-00 p.m. Cinema show, whereupon Yousuf accompanied him. She further stated that the same night at about 8-00 p.m. Appellant Ghulam Haider again came to the house, this time alone, and enquired from her as to whether Yousuf had returned and she informed him that Yousuf had not returned, whereupon Ghulam Haider told her that he had given Rs.10 to Yousuf to bring Cigarette and Pan, but Yousuf had disappeared after taking money. She further stated that Ghulam Haider was still present in the house when her father-in-law Muhammad Ramzan came at .About 8-00 p.m. And on his enquiry she informed him that appellant Ghulam Haider had taken Muhammad Yousuf with him in the morning. In cross-examination a suggestion was put to her that appellant Ghulam Haider had strained relations with her maternal-uncle Muhammad Ramzan and Muhammad Hashim, because they had been instrumental in the divorce of their sister (appellant's mother) and Mst. Soomri stated that she was not aware of such strained relations between them. Another suggestion was put to her that Muhammad Hashim wanted to marry his son to the girl with whom appellant Ghulam Haider was engaged and she again showed her ignorance about such intention on the part of Muhammad Hashim. P.W.5 Muhammad Yaqoob is the Mashir of recovery of weapon, a knife. He is the resident of Mach Goth, the place where the appellant had a house from which the dead body of Yousuf was recovered. P.W.6 Abdullah is son of P.W.1 Muhammad Hashim. In other words, Abdullah is paternal-cousin of the deceased and maternal- cousin of the appellant. He testified to what transpired between Mst. Soomri and the complainant on the day when Yousuf went with the appellant and disappeared. He stated that after searching for Muhammad Yousuf they called the appellant on the night between 12th and 13September, 1983, and P.W. Abdullah narrated the same story as given by the other witnesses as to what appellant told in this regard. He is one of the persons who had gone with the complainant to Mach Goth when the body of Yousuf was discovered from the pit dug out under the floor of theth
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appellant's house. P.W.7 Khamiso is a neighbour of the complainant as well as of the appellant. He is also would-be father-in-law of appellant as his daughter was engaged to the appellant. He had taken part alongwith the complainant in the search of deceased Yousuf and he had also witnessed the recovery of the dead body from the house of the appellant. In the cross-examination he conceded that the girl who was engaged to the appellant was not his own daughter, but the daughter of his were from her previous husband but we fail to see the worth of this clarification since no adverse inference can be drawn about the veracity of this witness on this account. It is only natural for a man, in our society, to consider his were's daughter from her previous husband as his own daughter and refer to her as such, and to disclose the actual relationship only when it is necessary to do so. He denied the suggestion that he now intended to marry this daughter to the son of P.W. Muhammad Hashim. P.W.8 Muhammad Umer is also equally related to the parties. His were is daughter of P.W. Muhammad Hashim who is brother of the complainant as well as of the mother of the appellant. He had also likewise taken part right from the beginning in the search of deceased Yousuf and had gone with the complainant party to Mach Goth when the body of the deceased was recovered from the house of the appellant. In his cross-examination he admitted that once upon a time he was servant of one Zamindar in District Makran and that he ran away from the service of the said Zamindar and had come to Karachi, but he denied the suggestion that the Jirga had fixed his price at Rs.5,000 and that father of the appellant paid this amount to the said Zamindar for discharging him from service. P.W.9 Dr. Abdul Basit had conducted post-mortem examination of the deceased and in his opinion the deceased had died as a result of strangulation and that the deceased had five external injuries on his person out of which injuries Nos.4 and 5 were on the neck and appeared to have been caused from some hard and blunt substance like stone, or they could have been caused by putting pressure on the neck by the hands, that external injuries Nos. 2 and 3 appeared to have been caused by blunt substance. He did not find any evidence of commission of sodomy on the deceased. 3. P.W.10 Sub-Inspector Rahim Noor is the Investigating Officer of the case. It is surprising to note that a suggestion was put to him that it was the complainant party which had murdered Yousuf and buried him in the house of the appellant. In other words, the defence version of the death of Yousuf was that he was murdered by his own father and other relatives. P.W.11 Sub-Inspector Rab Nawaz had recorded the F.I.R. These are witnesses examined by the prosecution in support of its case. The appellant in his 342, Cr.P.C. Statement denied the entire prosecution story and in the end stated that his uncle P.W. Hashim was against his meeting his father (since divorced from his mother) but he did not care for the wishes of Hashim and continued to meet him and, therefore, Hashim had falsely involved him in this case. In answer to the question as to why the prosecution witnesses had deposed against him, his strange reply was that they had deposed against him because they all belonged to his family and he had no enmity with them. He did not examine any defence witness, not even his father whom he used to meet, as per his 342, Cr.P.C. Statement, against the wishes of his uncle P.W. Hashim and because of which Hashim had, according to him, falsely involved him in this case. He, however, examined himself on oath under section 340(2), Cr.P.C. And repeated that he had no enmity with either the complainant or the deceased but added that he could not say whether any of them had enmity with him. He also repeated the allegation that his maternal-uncle Hashim had asked him not to meet his father. He referred to his engagement with Mst. Zahida, grand-daughter of his maternal-aunt and insisted that his maternal-uncle Hashim wanted to marry his son Abdulla to this Zahida and, therefore, desired that the appellant should break his engagement with Zahida, something repugnant to Baloch custom. In his cross-examination he first claimed that he did not know where Mach Goth was but then admitted that he knew that Mst. Razya and Mst. Salma lived at Mach Goth. Immediately thereafter he changed his statement and said that these ladies resided at Wilayat Shah Road. He admitted
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that Mst. Razya (P.W.3) was his sister's daughter and that his mother, father and grandmother were all alive. Muhammad Abid Shah, S.H.O. Of Baghdadi Police Station was examined as a Court- witness to prove that Roznamcha of the police station pertaining to 9-9-1983 was no more available as it was destroyed after two years as per Police Rules. On this date report of Gumshudgi of deceased Yousuf was allegedly recorded at the police station. He added that if demanded by a complainant, a copy of Roznamcha entry is provided to him. 4. Learned counsel of the appellant and of complainant and learned State counsel have been heard. 5. Learned counsel of the appellant raised five points before us:-- (1) Firstly, that there is no ocular evidence of the commission of the crime and the circumstantial evidence has not brought home the guilt of the appellant. (2) Secondly that the recovery of Chhuri was disbelieved by the trial Court and, therefore, it is a fit case of acquittal. (3) Thirdly, that the prosecution witnesses are interested and should not be believed. (4) Fourthly, that at the most it is a case under section 201, P.P.C. (5) Fifthly, that a person cannot be simultaneously convicted both under section 302, P.P.C. As well as under section 201, P.P.C. 6. There is no doubt that there is no ocular evidence against the appellant but the circumstantial evidence is of so close relatives of the appellant that its veracity cannot be doubted, notwithstanding the fact that the prosecution witnesses are also closely related to the deceased. The relationship between the complainant, the deceased, the appellant and some of the witnesses can be better understood by the following pedigree table Abdulla Ramzan Mst. Safooran Rahima Muhammad P, W.1 Hashim P. W. 2 Yousuf Muhammad Daughter Abdulla (Deceased)Hassan______|___________P. W. 6 Ghulam Haider Muradaan _______|AccusedBibi Her husband is P. W. 8 Umer His were is P. W. 4 Soomri P.W.3 Mst. Razya The appellant admits that he had no enmity with any of the prosecution witnesses. Nothing was brought out in cross-examination of any of them to suggest that there was any love lost between them and the appellant. It is worth noting that appellant's sister's daughter P.W.3 Razya, appellant's two maternal-uncles; appellant's maternal-uncle's daughter-in-law P.W.4 Soomri, appellant's maternal---uncle's son P.W.6 Abdulla and son-in-law P.W.8 Umer have deposed against him while his mother Mst. Safooran, his father Bungle Khan, his maternal-aunt Mst. Rahima and his sister Mst. Muradaan Bibi have not cared to depose in his favour. If there were any truth in the imputation made against P.W.2 Hashim that he was instrumental in effecting divorce between the parents of the appellant, then both the parents were good witnesses for proving the same and they (at least the mother) would not have shirked from coming forward as defence witnesses. If it were correct that Hashim asked the appellant not to meet his father Bungle Khan but the appellant was so devoted to his father that he still met him, then it is only natural to expect that Bungle Khan would
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have come forward to prove the malice of Hashim Khan towards him. Mst. Zahida was engaged to the appellant but if Hashim wanted that the engagement should be broken and Zahida should be married to his son Abdulla, then P.W.8 Khamiso could not have been ignorant of what Hashim wanted and he would have rather appeared as defence witness to prove this desire of Hashim and thus to save his son-in-law from the gallows instead of appearing as a prosecution witness (P.W.7). It is immaterial that he is step-father of Zahida. If, as per suggestion put to Khamiso in his cross- examination, he concurred with the desire of Hashim, what prevented him from going ahead and breaking the engagement. If breaking any engagement was against Baloch custom, then, are Khamiso and Hashim not Baloch themselves and, if they are, how they could have contemplated such a breach of custom? Mother of the appellant would have been a good witness even on this point. We are of the firm view that all imputations against P.W. Hashim are false. All the prosecution witnesses are impartial and disinterested and none of them can be accused of having any ulterior motive for falsely implicating the appellant. 7. So far as the recovery of the Chhuri at the instance of the appellant is concerned, learned Additional Sessions Judge has disbelieved this piece of evidence on the ground that to his mind it did not appeal to reason that the appellant would bury the Chhuri in the courtyard of his house where he committed the murder and buried the victim. It is evident that learned Judge did not realise that some times truth can be stranger than fiction. It may be that the expediency dictated otherwise but the recovery of Chhuri at the instance of the appellant is amply proved by the Mashir of recovery P.W.5 Muhammad Yaqoob who proves Mashirnama of recovery Exh.13 and by the Investigating Officer P.W.10 S.I. Adam Noor and in our view learned Judge erred in disbelieving this evidence merely because it did not appeal to his mind that an accused could have buried the Chhuri in his house where he committed the murder and buried his victim. We would set aside the finding of learned Additional Sessions Judge in this regard and would hold that the prosecution has proved the recovery of Chhuri, used in the commission of the crime, at the instance of the accused. 8. As for the motive, the complainant had expressed fear that the appellant had taken the deceased for committing unnatural intercourse with him. The apprehension of the complainant may well have been correct as the deceased was only 12 to 13 years old and the circumstances do not suggest any other purpose. However, the post-mortem examination did not reveal any signs of commission of unnatural intercourse upon the deceased, although the possibility cannot be ruled out that an attempt in that direction was made but was stoutly resisted and the appellant, fearing his exposure, killed the deceased at the spur of the moment. Even so, this motive has not been proved and was not pleaded in evidence and even the complainant did not say anything about it in his deposition. There is, however, the extra-judicial confession of the appellant before P.W.1 Ramzan, P.W.2 Muhammad Hashim, P.W.3 Mst. Razya P.W.6 Abdulla, P.W.7 Khamiso and P.W.8 Muhammad Umer. All these persons were present when the dead body was discovered in the house of the appellant who then admitted having committed the offence and further disclosed his longstanding grudge against P.W.1 Muhammad Ramzan because he (the appellant) considered him instrumental in getting his mother divorced and, therefore, killed Ramzan's son. We have no hesitation in believing this extra judicial confession of the appellant. Ramzan and Hashim may or may not be responsible for the divorce of appellant's mother but if the appellant firmly believed in it, it could very well constitute motive. It is therefore, not a case in which no motive has been brought on record. 9. After closely examining the evidence on record, we are satisfied. That the prosecution has proved its case beyond reasonable doubt that the appellant induced Yousuf to go with him to his under-construction house and killed him there and buried him in the said house from where the dead body, as well as the Chhuri used in the commission of the offence, were recovered.
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10. The appellant was found guilty under sections 302/364 and 201, P.P.C. In this regard, the contention of the learned counsel of the appellant was that the evidence on record did not make out a case under section 302, P.P.C, but only under section 201, P.P.C. We do not agree with the learned counsel. The evidence does make out a case under section 302, P.P.C. Learned counsel of the appellant then argued that a person cannot be simultaneously convicted under section 302, P.P.C. As well as section 201, P.P.C. In this, we agree with the learned counsel and are of the view that burying the dead body by the appellant himself does not amount to causing disappearance of evidence as contemplated by section 201, P.P.C. This is clear from the phraseology of the section itself and this view finds support from the judgment in Gulzar Khan v. The State PLD 1963 Pesh. 178 in which it is held as follows:-- "20. There are authorities for the view that when the murderer himself tries to screen the offence and removes the evidence of his guilt, he cannot be convicted under section 201, P.P.C, If any precedent is needed, Farid Muhammad v. The State PLD 1959 Pesh. 12 can be referred to with advantage. In this judgment it has been laid down `that it has been admitted by the learned counsel appearing for the State that the conviction of the accused-appellant under section 201, P.P.C. Cannot be sustained, because a person cannot both be convicted of murder and for concealing evidence of murder.' We would, therefore, set aside the conviction of the appellant under section 201, P.P.C. 11. The appellant has also been convicted under section 364, P.P.C. And sentenced to life imprisonment and fine of Rs.1.000 or further R.I. For six months in lieu thereof for abducting the deceased for killing him and the contention of learned counsel is that section 364, P.P.C. Is not attracted because the appellant and the deceased were living together and, therefore, there was no question of…
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