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Petitioner: MUREED VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Allah Dino G. Memon Title: MUREED vs THE STATE Case No.: Criminal Appeal No, 189 and Confirmation Case No, 12 of 1988 Date of Judgment:1989-11-12 Reported As: 1990 P Cr. L J 470 Result: Appeal accepted
JUDGMENT
JUDGMENT ' ALLAHDINO G. MEMON, J.--- The appellant Mureed son of Mitho Khoso has been convicted under section 302/34, P.P.C. By the learned Judge, Special Court for Speedy Trials Sukkur Division, at Sukkur, and sentenced to death and to pay fine of Rs,50,000 (Rupees fifty thousand) or in default to suffer R.I. For two years vide judgment, dated 29-11-1988. The brief facts of the prosecution case are that on 28-2-1987, complainant Arif Niaz P.W.3, lodged a report at Police Station Kazi Ahmed, which reads as under:-- "I and my father Chaudhry Niaz Ahmed after attending open Katchery of D.C. Nawabshah, came from village Sukhio Manahejo in our car at Kazi Ahmed as my father had to talk on telephone. After parking car outside the exchange we both came inside Exchange Office, Electric light was off and there was dark of the night, therefore, I took up a torch. My father booked call for Karachi at 6-37 p.m. At 6-45 p.m. Call was matured but there was no reply from Karachi number. We took permission from Incharge Exchange and at about 6-45 p.m. Came out of Exchange room. My father was ahead of me. I flashed torch and was going on left side of my father. On the light of the torch I saw that two persons armed with pistols were standing at the side of pillars outside the Verandah. Out of them one person fired pistol shot at my father which hit my father on the right side of his chest below nipple, who fell down on the back. Thereafter both the accused started running outside the Exchang. On the light of the torch I also saw that one accused re-loaded the pistol while running, and empty fell down on the Wardat. I had seen the accused carefully and would identify them as and when saw them. In the meantime, on the fire-arm report Aijaz Ahmed with torch in his hand, Riaz Ahmed and Ashraf came there and told me that they also had seen the accused firing on Ch. Niaz Ahmed and thereafter running away, and that they would identify the
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accused as and when saw them. My father on receiving fireshot injuries went unconscious and I, with the help of above witnesses, removed him in car to the hospital at Kazi Ahmed, where my father breathed his last. I left the P.Ws. To guard the dead body, and have come to lodge report. My father was known as social worker and Nekmard of middle class people. Muhammad Akhtar Asadullah and other friends of my father may be knowing about the enmity of some body with my father and they would tell about it. The accused with great conspiracy have murdered my father by firing pistol shot at him. I pray for justice. ' The above F.I.R. Was recorded by S.H.O. Ghulam Kabir and the same has been produced as Exh.17. Thereafter S.H.O. Accompanied the complainant to the hospital at Kazi Ahmed where he saw dead body of deceased Ch. Niaz Ahmed lying in Verandah. He prepared Mashirnama of dead body in presence of Mashirs Aslam and Nazir at 7-50 p.m. He also prepared the inquest report in presence of same Mashirs, thereafter he gave letter to the Medical Officer for post-mortem. The inquest report has been produced as Exh.38. The S.H.O. Had found fire-arm injuries on the right side of chest below the nipple of the deceased. He went to the place of Wardat which was shown to him by complainant Arif Niaz and the same was situated in telephone exchange office. He secured blood- stained earth from Wardat and one empty cartridge. He sealed the same in separate parcel and prepared such Mashirnama which has been produced as Exh.39. On 1-3-1987, he went to Roshan Abad where he examined P.Ws. Aijaz Ahmed, Riazul Haq, Muhammad Ashraf, Asadullah and Ch. Akhtar under section 161, Cr.P.C. Complainant Arif Niaz and P.W. Aijaz Ahmed produced their torches before him which he secured under Mashirnama and the same has been produced as Exh.40. On 3-3-1987, he examined P.W. Muhammad Aslam and Abdul Hameed at Police Station Kazi Ahmed, P.W. Abdul Hameed produced a torch before him which he secured and prepared such Mashirnama in presence of the same Mashirs. The Mashirnama has been produced as Exh.41. On 19-3-1987, he arrested accused Mureed from his house in presence of Mashirs Ahmed and Ata Muhammad under Mashirnama which has been produced as Exh.43. The accused Mureed after arrest volunteered to produce crime weapon/pistol and voluntarily led him and Mashirs to heap of dung lying in the courtyard of his house. He dug out the pistol from the heap and produced the same before S.H.O. Who secured and sealed the same under Mashirnama, which has been produced as Exh.44. It was found loaded with one live-cartridge. He then brought the accused and property to Police Station Kazi Ahmed and lodged report under section 13-D of the Arms Ordinance against the accused as he had no licence for the pistol. The F.I.R. Has been produced as Exh.48. He recorded statements of P.Ws. A.S.I. Muhammad Ramzan, Head Constable Ata Muhammad and Muhammad Ilvas under section 161, Cr.P.C. He had examined the Mashirs at the Wardat in the above case. Thereafter he produced the accused before the Head Munshi and Second Class Magistrate Sakrand and sent a policeman to the witnesses to bring them to Taluka Office Sakrand for identification of the accused. On the same day, after the identification test was held, he produced accused Mureed before the Mukhtiarkar and F.C.M. Sakrand for recording his judicial confession. On 21-3-1987, he produced P.Ws. Aslam and Abdul Hameed before the Head Munshi and S.C.M. Sakrand for identification test of accused Mureed. On 28-3-1987, he received spy information that the accused Azizullah Mari was available at Umer Kot. On that day, he alongwith his subordinate staff went to Umer Kot and arrested accused Azizullah Mari at bus stand in presence of Mashirs Ishtiaq Ahmed and Muhammad Tahir. The accused was on motor-cycle which he secured in presence of the same Mashirs and prepared such Mashirnama which has been produced as Exh.46. He then produced accused Azizullah Mari before Mukhtiarkar and F.C.M. Umer Kot for recording his judicial confession. He then came back to the police station. On 29-3-1989, he deputed A.S.I. Muhammad Ramzan to produce P.Ws. Before the Head Munshi and S.C.M. Umer Kot for identification test of accused Azizullah Mari. On 31-3-1987, he arrested accused Mooso from his house in presence of Mashirs Muhammad Rafique and Muhammad Ali and prepared such
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Mashirnama of arrest which has been produced as Exh.49. On 1-4-1987, he produced P.Ws. Muhammad Ashraf, Aslam, and Abdul Hameed before Head Munshi and S.C.M. Sakrand for identification test of accused Mooso. On 26-4-1987, he submitted final challan before the Court. He had sent blood-stained articles to the Chemical Analyser and crime weapons and empty to ballistic expert for examination and report through Superintendent of Police Nawabshah. He has produced the chemical report and ballistic expert report as Exh.50 and Exh.51. ' A formal charge was framed against the appellant and co-accused, to which they pleaded not guilty. ' At the trial, prosecution examined S.H.O. Aftab Ahmed, who had received N.B.Ws. For service against accused Gulo, but the same could not be served. He has produced the non-bailable warrant as Exh.1-A, statements of Nekmards as 'A', 'B', 'C' and 'D', his own report as Exh.I-E'. P.C. Meer Muhammad P.W.2, he had handed over dead body of deceased Ch. Niaz to Medical Officer for post-mortem examination. After post-mortem examination he had received the dead body which he handed over to its relatives after obtaining receipt and the receipt has been produced as Exh.15, while the bloodstained clothes of the deceased were deposited in the Malkhana at police station. Complainant Arif Niaz P.W.3, he has produced his F.I.R. As Exh.17, Aijaz an eyewitness P.W.4, Riaz Ahmed P.W.5, an eye-witness, Mcer Khan the then Head Munshi and Assistant Mukhtiarkar at Sakrand, who had held identification test of accused Mureed, through P.Ws. Arif Niaz, Aijaz, Riaz and Muhammad Ashraf, he has produced the Mashirnama of identification test as Exh.22. He had held another identification test of accused Mureed through witnesses Abdul Hameed and Aslam under Mashirnama, which has been produced as Exh.23. He had also held identification test of accused Mooso through P.Ws. Abdul Hameed and Muhammad Aslam and Mashirnama has been produced as Exh.24. Mr. Abdul Qadir P.W.7, the then Mukhtiarkar and F.C.M. Umer Kot, who had recorded judicial confession of accused Azizullah Mari and the same has been produced by him as Exh.26. Dr. Fazal Muhammad, Medical Officer, Kazi Ahmed P.W.8, he has produced the post-mortem report of deceased Ch. Niaz as Exh.28. Tapedar Abdul Karim P.W.9 he has produced the sketch as Exh.30, Abdul Hameed an eye-witness P.W.10, statement of public prosecutor giving up P.W. Ashraf and Aslam as Exh.32. Asadullah P.W.11 Krishan Lal, the then Mukhtiarkar and F.C.M. Sakrand P.W.12 he has produced the judicial confession of accused Mureed as Exh.35 Mashir Muhammad Aslam, he has produced Mashirnama of dead body as Exh.37, inquest report as Exh.38, place of Wardat as Exh.39, production of torches by complainant Arif Niaz and P.W. Aijaz on the following day Exh.40, production of torch on 3-3-1987 by P.W. Abdul Hameed Exh.41, Mashir Nasir Ahmed P.W.14, he has produced Mashirnama of arrest of accused Mureed as Exh.43, production of Mashirnama of pistol by accused as Exh.44, Mashir Ishtiaq Ahmed P.W.15, he has produced Mashirnama of arrest of accused Azizullah Mari and recovery of motor-cycle from him as Exh.46. S.H.O. Ghulam Kabir P.W.16, he had carried on investigation of the case and challaned the accused. He has produced the F.I.R. Registered by him under section 13-E of Arms Ordinance as Exh.48, Mashirnama of arrest of accused Mooso Exh.49, Chemical Report Exh.40, report of Ballistic Expert Exh.51, Muhammad Suleman Assistant Mukhtiarkar and S.C.M. Umer Kot who had held identification test of accused Azizullah Mari through complainant Arif Niaz P.Ws. Aijaz Ahmed, Riaz, Muhammad Ashraf and Abdul Hameed, he has produced Mashirnama of identification test as Exh.54. ' After close of the prosecution case, the statements of the appellant and co-accused were recorded in which they denied the allegations. It was further stated by the present appellant that his confessional statement was got prepared by Sub-Inspector and he forcibly obtained his L.T.I. On it, he has further stated that P.Ws. Are residents of village Roshan Abad and not of Kazi Ahmed. They have been set up. That injustice has been done to him by the prosecution. He has produced the copy of voters' list of P.W. Riazul Haq as Exh.56-A Aijazul Haq as Exh.56-B, photostat copy of electoral roll of Unit Dch Golo Dhahiri in fourteen leaves as Exh.56. According to him, he was
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arrested by police on 2-3-1987 from his house, his womenfolk were also brought to police station. They used to coerce him to give judicial confession of murder of Ch. Niaz but he used to refuse. They also maltreated his ladies in presence of Nekmards of locality, namely, Mooso Mchar, Shahenshah Mehar, Haji Khan Lakho, and Piral Chandio. After maltreatment he was produced before Mukhtiarkar and F.C.M. Sakrand on 19-3-1987, and he obtained his L.T.I. Forcibly. He is a literate person and knows how to sign. On 24-3-1987, Ghulam Muhammad Butt, Sobedar, brought him at Police Station Nawabshah, detained him at the police station for the night and on 25-3-1987, he was brought to Central Jail, Sukkur. On 2-4-1987 he sent an application to Sessions Judge, Nawabshah from Central Jail, Sukkur that he had not given judicial confession and that his L.T.I. Was obtained forcibly. In the list of defence witnesses he had given four names who were later on given up. Co-accused Azizullah had further stated that he was arrested on 4-3-1987 and was kept in wrongful confinement. His L.T.I. Was forcibly obtained on judicial confession. He is a lame person and cannot run. He has been implicated falsely. He has produced photostat copy of application sent to Sessions Judge, Nawabshah, from District Jail, Mirpur Khas, as Exh.57-A. He has also produced copies of newspapers Daily Aman, dated 16-4-1987, as Exh.57-B, Daily Ibrat dated 9-3- 1987, Exh.57-C, Daily Ibrat dated 27-3-1987, Exh.57-D and Daily Ibrat dated 18-10-1988 Exh.57-E. ' Dr. Fazal Muhammad P.W.8, had carried on post-mortem on the dead body of Ch. Niaz Ahmed. According to him, he found the following injuries on the person of deceased on external examination:-- (1) Punctured type of fire-arm wounds of entrance of 1 x 1/4 c.m. In diameter on right side epigastrium margins inverted irregularly charred. (2) Laceration charred 1-1/2 c.m. x 1 c.m. On right side abdomen 3 c.m. Below injury No,1. (superficial). ' On internal examination he found the following damage. ' Left side of heart was empty, right side of heart contained dark red blood, right side abdomen was punctured and ruptured. Peritoneum punctured on right side abdomen at nine places, abdomen cavity full of blood. Stomach contained fluidy food matter and blood. Stomach punctured at two places. Small intestine punctured at many places. It contained fluidy food matter. Large intestine punctured at many places and contained faecal matter. Four big size pellets extracted from intestine and muscle of abdomen. Right lobe of liver punctured at two places. Spleen punctured at one place. One big size pellet extracted from spleen, bladder was empty. ' From external as well as internal examination of the dead body, he was of the opinion that the death of Niaz was caused due to injuries to vital organs as liver, stomach, spleen and shock and haemorrhage. All the injuries appeared to have been caused by fire-arm such as gun or pistol and were anti-mortem in nature. Injuries Nos. 1 and 2 individually and all injuries collectively were sufficient to cause death in ordinary course of nature. Probable duration which elapsed between the injuries and death was within thirty minutes and between death and post-mortem 1-1/2 hours. Pellet extracted from the body was sent to the police in a sealed bottle. He has produced the post- mortem report as Exh.28. ' Complainant Arif Niaz P.W.3, has supported the contents of his F.I.R. And has produced the F.I.R. As Exh.17. He has further deposed that after recording his F.I.R. S.N.O. Came to the hospital. After post- mortem examination dead body of deceased Niaz Ahmed was delivered to him. He had shown place of Wardat to police. The police had secured blood-stained earth and empty from the Wardat and sealed the same. After showing Wardat to the police when he went back to the hospital P.W. Abdul Hameed, who is working in Cotton Ginning Factory informed him that he and Muhammad Aslam were coming from factory, he had torch in his hand and in the light of the torch he had seen 5 persons with pistols in their hands out of which 2 went on motor-cycle and 3 went by foot. He further told that he had seen those culprits clearly and would identify them. On 19-3-1987 a
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policeman came and told him that S.H.O. Had called them at Taluka Office Sakrand for identification of a culprit, Then (complainant) P.Ws. Aijaz, Riaz and Muhammad Ashraf went to Taluka Office Sakrand. They were produced before Head Munshi, who made them sit in the Office of Clerks, from where they were called for identification test one by one. There was a line of ten persons out of which he picked out a man standing at Serial No,3 in the line. He was the person who had fired pistol shot at his father. (The witness pointed out accused Mureed, who was picked out in the test). He was not previously known to him but he had seen him on the day of incident. On 28-3- 1987 a policeman came to inform them that S.H.O. Had directed them to come to Umer Kot for identification test of a suspected person. On 29-3-1987 he, P.Ws. Aijaz, Riaz, Muhammad Ashraf, Abdul Hameed and Muhammad Aslam went to Umer Kot. A.S.I. Muhammad Ramzan of Kazi Ahmed Police Station was present in Taluka Police Umer Kot. They were produced before Head Munshi, who arranged the identification test in the fort. They were called one by one and he had picked out a person standing at Serial No,7, who was present with the person who had fired at his father. (He has pointed out accused Azizullah). He was not known to him previously. He had come to know from his elders that accused Azizullah had declared that he would take revenge from Niaz Ahmad as there had been raid at his Pathary' during M.R.D. Movement and he had received bullet injury on the leg. He had come to know about the above facts from his maternal-uncle Muhammad Akhtar and cousin Asadullah. About two months prior to this incident Nazroo Khoso had come to commit theft in the house of Chaudhry Khalid and while committing theft he was murdered. Khosos alleged that Nazroo was got murdered by Chaudhry Niaz and they will take revenge. This information was also given to him by Muhammad Akhtar and Asadullah. Nazroo Khoso was brother of accused Mureed. He had come to know about it subsequently. He had produced his torch before the police on the following day. In cross-examination he has deposed that P.W. Asadullah had come in the hospital. He did not tell him anything in hospital. His father did not tell him that accused Azizullah had issued threats to him. He did not know that accused Azizullah had received injury. He had not seen motor- cycle on which the culprits had run away as stated by Abdul Hameed and Muhammad Aslam. He had seen accused Azizullah and Mureed going out of the exchange office immediately. He had not given description of the accused in the F.I.R. As police had not inquired from him about the same. His father did not tell during his lifetime if he apprehended any danger at the hands of any body. He has admitted that Ch. Khalid was also joined in the investigation of this case as one of the suspected culprits. He came to know subsequently that accused Azizullah was apprehended while going on motor-cycle of Ch. Khalid. There was no light in the exchange office. He has admitted that P.Ws. Aijaz, Riaz and Muhammad Aslam are Punjabis. Zafar is his brother-in-law. But he did not know what was the relationship between Zafar and P.W. Aijaz. The name of Ashraf was disclosed to him by P.Ws. Aijaz and Riaz. He did not state in his F.I.R. That Ashrars name was disclosed to him by Aijaz and Riaz. His clothes were not stained with blood. Mashir Isthiaq is Punjabi. He did not know if Mashir Muhammad Tahir is also Punjabi. He has admitted that they were produced before Head Munshi, Sakrand by the S.H.O. His uncle is in police service and is posted as Superintendent of Police at Bahawalpur. His uncle who is Superintendent of Police had come to them after this incident. He has admitted that other Inspectors apart from Inspector Dal used to come for investigation of this case. He did not know if accused Mureed was arrested on 2-3-1987. He has denied that after his arrest the accused was maltreated by S.H.O. In his presence. P.Ws. Riaz, Aijaz, Ashraf, Abdul Hameed, Muhammad Aslam and Asadullah were also present in the hospital when they had removed the dead body from the hospital. He has denied a suggestion that he was not present at the time of incident and had not witnessed the incident. He has further stated that the dead body of his father was given to him at 9-15 p.m. And thereafter he made arrangements for its removal. Till then he was in the hospital. He had seen Abdul Hameed and Aslam in the hospital at about 8-
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30 or 8-45 p.m. His father Niaz Ahmed knew driving. He has denied that on the day of incident he had not accompanied his father to Kazi Ahmed. Niaz Ahmed had driven the car himself. ' Aijaz P.W.4 has deposed that he knew deceased Ch. Niaz Ahmed and his son complainant Arif. On 28-2-1987, at 6-45 p.m. He was going to purchase medicine from Jamil Medical Store, Kazi Ahmed. There was no light in the town and when he reached in front of Telephone Exchange P.W. Riaz Ahmed met him whom he asked that after taking medicine from medical store they will go to the house together. According to Riaz Ahmed P.W.5, on 8-2-1987 at 6-45 p.m. He was coming from the hotel of Ghulam Rasool at Kazi Ahmed after taking tea. P.W. Aijaz met him at Chowk of Dairah Road, Aijaz asked him that he should accompany him to the medical store for purchasing medicine and threafter they will go together to their house. When they came at the gate of telephone exchange P.W. Ashraf met them, at that time electricity was off in the town. They have further stated that while they were standing in front of the gate of telephone exchange, they saw light coming from telephone exchange which diverted their attention. P.W. Aijaz had torch in his hand which he flashed, they saw Ch. Niaz and Arif coming from Exchange Office and they were at Veranda of the exchange office. They also saw that two persons were standing at the pillars of the door of the exchange office armed with pistols. Within their sight one of them fired pistol shot which hit Ch. Niaz Ahmed who on receipt of pistol shot fell down on the ground. The accused who had fired the pistol reloaded the same. Both the culprits had countrymade pistols, their faces were open and they had seen their faces clearly. Thereafter, they came quickly from the exchange and went away. Thereafter the witnesses went inside the exchange office and found Ch. Niaz Ahmed lying unconscious and injured having fire-arm injury on the right side of the chest and was bleeding from the injury. Then they removed injured Niaz Ahmed in his car to the hospital at Kazi Ahmed. Immediately after reaching the hospital he breathed his last. They remained as guards at the dead body whereas Arif went to lodge report. The police had come to the hospital. According to P.W. Aijaz, police had examined him on the following day morning at about 10-00 a.m. And also secured torch from him. Whereas according to P.W. Riaz Ahmed police had come at the hospital but had not examined him. He had given facts to the police there in the hospital. On 19-3-1979 P.W. Aijaz was called by police through Police Constable Mir Muhammad at Taluka Office Sakrand for identification test of accused whereas P.W. Riaz Ahmed was informed by a man of Arif who is Munshi of Ch. Niaz Ahmed to go for identification test of the accused at Taluka Office at 9-00 a.m. Complainant P.W. Aijaz Ahmed, Riaz Ahmed and Ashraf went to Taluka Office and had picked up appellant Mureed in the identification test. According to them the identification test was held before Taluka Mukhtiarkar and the appellant was mixed up with nine other dummies. The accused was not known to him previously. Again on 28-3-1987, they were informed by police to come to Taluka Office Umerkot for identification test. On 29-3-1987, complainant, P.W. Riaz Ahmed, Aijaz, Muhammad Abdul Hamid and Aslam went to Umerkot in Datsun car. A.S.I. Muhammad Ramzan produced them before Assistant Mukhtiarkar who took them to the Court where identification test was held by Assistant Mukhtiarkar. They were able to identify accused Azizullah in the identification test. In cross-examination P.W. Aijaz and Riaz Ahmed have deposed that they originally belonged to village Roshan Abad. They resided at the distance of about 1/2 furlong away from the house of Ch. Niaz Ahmed, in village Roshan Abad. P.W. Aijaz could not say whether his name was mentioned in voters' lists at Roshan Abad while Riaz Ahmed had admitted that his name is entered in voters' list at Roshan Abad and he has been casting his vote there. However, they have denied that they and other witnesses reside in Roshan Abad. The witnesses have further admitted in cross-examination that in the National Identity Card their residence is shown at Roshan Abad. They had not given description or mark of identification of the culprits to the police in their 161, Cr.P.C. Statements. P.W. Aijaz has further admitted in cross-examination that they were examined by S.H.O. At Roshan Abad not at police station. There is no police station or police post at Roshan Abad. He was examined by
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S.H.O. In an Otaq but he could not say as to who was the owner of Otaq. P.W. Ashraf had gone together with him. Ashraf had gone to his house and asked him to come for giving statement before S.H.O. At Roshan Abad. He, Riaz and Ashraf reside in Sardar Colony Kazi Ahmed. Sardar Colony is on the western side of telephone exchange at the distance of about 1/1-2 furlongs. P.W. Aijaz has further admitted that Jamil Medical Store is also situated on the western side of the exchange. His face is to the west. He has…
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