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Petitioner: ABDUL MAJID AND 6 mums VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Mushtaq Ali Kazi, Noorul Arfin Title: ABDUL MAJID AND 6 mums vs THE STATE Case No.: Criminal Appeal No, 183 of 1973 Date of Judgment:1974-07-15 Reported As: 1976 P Cr. L J 945 Result: Appeal allowed
JUDGMENT
JUDGMENT ' NOORUL ARPIN, J.-Seven persons, namely, (1) Abdul Majid, (2) Masita, (3) Jalil Ahmad, (4) Jamil, (5) Islamuddin, (6) Abdul Shakoor and (7) Akhtar Hussain (all appellants herein) were put on trial before the first Additional Sessions Judge, Nawabshah, for the murder on 14-6-72 of one Muhammad Yaseen. Of them Jalil Ahmed and Jamil Ahmad are minors. All the seven appellants are related inter se. The two minor boys, JAI Ahmed and Jamil Ahmad, are the sons of the first appellant Abdul Majid. Appellants 5 and 6, both sons of Abdul Aziz, as well as appellant No, 7 Akhtar Husain, are nephews of Abdul Majid and appellant No, 2 is also related to the first appellant. By judgment dated 26th May 1973, the trial court convicted the five adult appellants under section 302 read with section 149, and under section 148, P. P. C., and sentenced each of these five persons to imprisonment for life for the offence under section 302 read with section 149, P. P. C. And rigorous imprisonment for one year for the offence under section 148, P. P. C. As regards the two minors, namely, Jalil Ahmed and Jamil Ahmad, they were ordered to be kept in safe custody in the Central Prison and their cases were reported under section 26 of the Bombay Children Act, 1924, for orders of the Provincial Government, and the Provincial Government by its orders dated the 26th July 1973, directed both the minors to be confined in Juvenile Jail at Landhi, Jalil Ahmad for a period of five years and Jamil Ahmed for three years. 2. The prosecution version is that the accused party as well as the deceased Muhammad Yaseen own agricultural lands in Survey No, 248/1, Deh Bherro, Taluka Naushahro Feroze, District Nawabshah, within the jurisdiction of Tbaroshah Police Station. In fact, the land of the appellants adjoins that of the deceased Muhammad Yaseen, who, under a private arrangement, permitted the appellants to dig a private water channel from course No, 7 running from the land of the
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deceased, Muhammad Yaseen, to the accused's land. This arrangement was entered into three or four years previous to the murder of Muhammad Yaseen. A few days before the incident, which is the subject-matter of the prosecution, Muhammad Yaseen closed the water channel. At about 9- 00 a.m. Of 14th June 1972, the appellants, three of whom were armed with hatchets and four with spades, entered upon the deceased's land and forcibly started re-digging the private channel which had been closed by the deceased. When the deceased attempted to prevent the accused from doing so, he was attacked with hatchets and died on the spot. The medical evidence shows that the deceased suffered six incised wounds and one contusion. The first information report was lodged at 10-00 a.m. With the Tharoshah Police Station, at a distance of one mile from the vardat, by P. W. Naseeruddin, the brother of the deceased. The accused in turn had also lodged an F. I. R. Through the first appellant Abdul Majid at 9-15 a.m. Of 14th June, 1972 to the effect that, while repairing the water channel, he was abused and given fist and kick blows by the deceased Muhammad Yaseen and his son Muhammad Ghaus and the first informant Naseeruddin and his son Muhammad Khurshid (the last three being prosecution witnesses in the present case), and that when he raised cries, his son Muhammad Jamil (one of the two minor appellants) and his relation Akhtar arrived and intervened between the parties. This report was proved by the Investigating Officer, A. S. I. Shahnawaz, though the appellant, Abdul Majid, denied having lodged this report. On the F. I. R. Lodged by the first informant Naseeruddin, A. S. I. Shah Nawaz took up the investigation and sent the body of the deceased, Muhammad Yaseen, for postmortem examination, recorded the statements of the prosecution 'witnesses, and made recoveries of the hatchets and spades said to have been used for killing Muhammad Yaseen and blood-stained clothes from the persons of the accused, and, after completion of the investigation, challaned the accused before the committal Court, from where they were sent for trial before the Court of the First Additional Sessions Judge, Nawabshah, who convicted and sentenced the Five adult appellants as aforesaid and reported the case of the two minors Jalil Ahmed and Jamil Ahmed to the Provincial Government. 3. The prosecution evidence consists of (1) statement of Dr. Sikandar Ali sdxh. 33), who conducted the post-mortem examination, and his post-mortem report, (2) the statement of Dr. Qaimdin (Exh. 22), who examined Jalil Ahmad and Jamil Ahmed to determine their ages and proved his medical certificate (Exh. 23) and deposed that on 3-1-1973, when the two minors were examined by him, Jalil Ahmed appeared to be about sixteen years of age and Jamil Ahmed about twelve to thirteen years of age, (3) evidence of the eye-witnesses, that is, the complainant P. W. Naseeruddin P. W. Muhammad Khurshid, son of the complainant, and P. W. Muhammad Ghaus, son of the deceased Muhammad Yaseen, (4) recoveries of blood-stained hatchets and clothes and of spades under "Mashirnamas" Exhs. 16, 17, 18 and 19 and of the taking of blood-stained earth from the wardat, (5) and the report of the chemical analyser (Exh. 26), according to which the earth, the hatchets and the clothes sent to the chemical analyser were stained with human blood. The defence of the appellants was one of total denial and the accused further stated that some persons, other than any of them, had killed Muhammad Yaseen, but the accused had been implicated due to the hostility between them and the complainant party. 4. Mr. Irndad All Agha, who addressed detailed arguments on behalf of the appellants, contended that there were such serious discrepancies in the prosecution evidence that the conviction of the appellants could not be sustained. Before dealing with this contention, we may state here that the death of Muhammad Yaseen due to injuries inflicted on him by hatchets and blunt weapons is not in dispute in any way. The Medical Officer of Tharooshah, Dr. Sikandar Afi, carried out the post- mortem examination of the deceased's body and proved his post-mortem report in his evidence in Court and deposed that he found the following injuries on deceased Muhammad Yaseen :
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(1) Oblique incised wound 5' x 3' x over the upper half of back in-between both scapula as cutting the fourth thoracic vertibrae. (2) Oblique incised wound 5f x 3' chest deep over the right side of back below inferior angle of the right scapula cutting the ninth and tenth ribs thoroughly. (3) Oblique incised wound 5' x x 2i" over the lower lateral part of the right scapula which was cut at that side thoroughly. (4) Oblique incised wound 3' x 1' x just above the left mastoid bone. (5) Oblique contusion of red colour 3" x 1' over the middle of left arm on the anterior aspect. (6) Oblique incised wound 5" x 3' x over the middle of right leg, on the lateral aspect cutting the tebular bone thoroughly. (7) Transverse incised wound 3r x 2" x over the upper one-third of the left leg on the anterior aspect cutting the tibial bone thoroughly. ' On internal examination, Doctor Sikandar Ali found the following injuries on deceased Muhammad Yaseen : (1) The ninth and tenth ribs on the right side of the back were cut. (2) The basal portion of the right lung was cut. (3) The heart was empty. (4) The stomach contained only water. ' According to this witness, the death of the deceased was due to haemorrhage and shock in consequence of the above injuries, except Injury No, 5, which appeared to have been caused by hard and blunt substance such as "Lave or the back side of a hatchet, the other injuries being caused by a sharp-edged weapon like hatchet. 5. The question now is whether the prosecution evidence sustains the conviction and sentence recorded against the five adult appellants and the order recorded against the two minors, Jalil Ahmad and Jamil Ahmad, and in this connection we will have to review the evidence led by the prosecution in some detail. P. W. Naseeruddin, the brother of the deceased, lodged his First Information Report with the Tharoshah Police Station at about 10-30 a.m. According to this report, the accused had a water channel through the joint lands of P. W. Naseeruddin and the deceased Muhammad Yaseen under a private arrangement. There was some dispute between the parties, in consequence of which the complainant and his dsiceased brother prevented accused Masita from making use of this channel. The complainant and the deceased then dismantled and closed this channel. According to this report, on 14th June 1975, the complainant, Naseeruddin, was grazing his cattle in the morning at 9-00 a.m. At some distance from the vardat when he saw Abdul Majid, Masita, Jalil Ahmed, Jamil Ahmed, Islamuddin (alias Salamon), Abdul Shakoor and Akhtar Husain re-excavating the channel which had been closed by the complainant and his brother. The complainant and his deceased brother, Muhammad Yaseen, and P. Ws. Muhammad Khurshid and Muhammad Ghaus also arrived there and all four of them then went to the accused to prevent them from re-excavating the channel, but found that, while Jalil Ahmed, Jamil Ahmad, Masita and Akhter Husain were excavating the channel with spades, Abdul Majid, Abdul Shakoor and Islamuddin were standing guard armed with hatchets. When the complainant party tried to dissuade the accused from re-excavating the channel, they were abused, according to the First Information Report, by Abdul Majid, Abdul Shakoor and Islamuddin, who also gave hatchet blows to Muhammad Yaseen, whereupon the latter fell down and the accused left the place. The complainant left P. Ws. Muhammad Khurshid and Muhammad Ghaus by the side of the deceased and went to the Tharoshah Police Station, where he lodged his First Information Report. But in his deposition before the trial Court, the complainant went back upon the material parts of his First Information Report. In his evidence, he stated that he was at a distance of one furlong from the vardat grazing his cattle when he was attracted by cries. When he arrived at the scene, he found
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that his brother, Muhammad Yaseen had already been killed ; the private water-channel bad been re-excavated ; P. Ws. Muhammad Khurshid and Muhammad Ghaus were surrounded by Abdul Majid. Jamil Ahmed, Islamuddin and Abdul Shakoor, whereas Masita, Akhtar Husain and Jamil Ahead were armed with hatchets and had inflicted hatchet injuries on Muhammad Yaseen, though, in his F. I. R., he had stated that it was Abdul Majid, Abdul Shakoor and Islamuddin who were armed with hatchets, and the remaining four accused had spades in their hands. When he was confronted with his F. I. R. The witness stated that the A. S. I. Had wrongly recorded in the F. R. That the persons who had hatchets were Abdul Majid, Abdul Shakoor and Islamuddin. In his evidence, he insisted that only Masita, Jalil Ahmed and Akhtar Hussain were armed with hatchets. This witness further stated in his evidence that he was prevented from approaching the scene of offence by the threats held out by all the accused, and that, even before his arrival, Muhammad Yaseen was already dead in consequence of the hatchet injuries inflicted on him. In cross-examination, the witness stated that the deceased, Muhammad Yaseen, was previously on bad terms with his step brothers, Rafique and Siddique, but that the dispute between them had been settled. P. W. 3, Muhammad Khurshid, the son of the complainant (Exh. 10) stated in his evidence before the trial Court, that, two or three days before the incident, the deceased, Muhammad Yaseen, had quarrelled with the accused and had prevented them from using the private water-channel, which the deceased dismantled and closed. On the day of the incident, he was ploughing his deceased uncle's land at a distance of one furlong from the scene of the incident, when he was attracted by commotion and he and P. W. Muhammad Ghaus, the latter being the son of the deceased, therefore, hurried to the scene, where they found Masita, Jalil Ahmed and Akhtar Hussain armed with hatchets and the remaining four accused carrying spades, but the four accused carrying the spades prevented P. Ws. Muhammad Khurshid and Muhammad Ghaus from going near Muhammad Yaseen, who was being subjected to hatchet blows by Masita, Mil Ahmed and Akhtar Husain. The witness further deposed that his statement was not recorded by the police during investigation of the offence. The third and last eye-witness is P. W. Muhammad Ghaus, the son of the deceased, Muhammad Yaseen. He also says that his statement was not recorded by the police during the investigation. He confirms the statements made by the other two eye-witnesses that the deceased, Muhammad Yaseen, had closed the water channel which had been in the use of the accused persons. On the day of the incident, he saw from a distance of thirty to forty paces that the accused persons were re-digging this channel. He then heard commotion and found that his deceased father was surrounded by Masita, Jalil Ahmed and Akhtar Husain, who were armed with hatchets and who were giving hatchet blows to Muhammad Yaseen. Accordingly, this witness raised cries, wherupon the complainant, Naseeruddin, arrived at the scene. This witness does not say anything about the arrival of P. W. Muhammad Khurshid at the scene of the offence. He also contradicts the complainant by saying that the complainant, P. W. Muhammad Khurshid and he himself, that is, P. W. Muhammad Ghaus, went to the police station with the dead body of Muhammad Yaseen for lodging the First Information Report. He further contradicts the complainant by saying that it was in his presence that the complainant had told the police that the three persons who were armed with hatchets and had given hatchet blows to the deceased were Abdul Majid, Abdul Shakoor and Islamuddin, it being noted that the complainant in his evidence before the trial Court asserted that the A. S. I. Wrongly recorded in the First Information Report that he had told the police that the persons who carried hatchets and gave hatchet blows were Abdul Majid, Abdul Shakoor and Islamuddin, and that, in fact, the persons who carried hatchets and gave hatchet blows to Muhammad Yaseen were Masita, Jalil Ahmed and Akhtar Husain. The next important prosecution witness is the mashir, Abdul Razaq (Exh 13). He is one of the two rhashirs, the other mashir being Nathu, who was not examined at the trial. Both these mashirs were parties to the material 'mashirnamas' on record, that is, Exhs. 14 to 19. It should be here noted that, according
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to the complainant, Naseeruddin, both the mashirs were related to the deceased, Muhammad Yaseen, in that Abdul Razak's neice was the wife of the deceased, and Nathu was the deceased's brother-in-law. At the trial, this witness confirmed only the 'masnirnarna' of the Yardat (tad'. 141. With regard to the other 'mashirnamas, he said that he was called at the Police Station the next day, where he was asked to sign the other `mashirnamas', which he did, but that it was incorrect that, in his presence, the accused were arrested, or that blood-stained clothes were incriminating from the person of accused Abdul Majid, or any other ncri-minating articles from the other accused, or even that the accused, Abdul Shakoor, led the police to his house, or that the police secured blood-stained clothes from the person of Abdul Shakoor. The witness further stated that, when he reached the police station the next day, he found all the accused present there. The witness was declared hostile and was cross-examined by the A. P. P. And in his cross-examination the statement made by him before the committal Court (Exh. 21) was read over to him, wherein he had admitted that he was a party to all the "mashirnamas" which were prepared in his presence, and that it was in his presence. That the blood-stained clothes were secured from the persons of the accused, and the blood-stained hatchets were recovered at the accused persons' pointation. An inadvertent omission was made by the prosecution, in that the prosecution failed to get the lower Court statement of this witness (Exh. 21) formally brought on record through this witness himself. However, on the same day on which this witness was examined by the trial Court. His lower Court statement was formally brought on record by the order of the trial Court on an application made by the A. P. P. To us, this procedure does not in any away appear to militate against the requirements of law, as section 288 of the Criminal Procedure Code does not lay down the rule that the previous statement of a witness recorded in the presence of the accused should be formally proved by the witness himself, as the section merely provides that such statement may be treated as evidence if the witness is produced and examined before the trial Court, though we would record our view that the rule of prudence requires that ordinarily the previous statement of such witness, if he is examined before the trial Court, should be brought on record through the witness himself. 6. Apart from the evidence of the Investigating Officer, A. S. I. Shahnawaz (Exh. 24) to which we will have occasion to refer in the course of this judgment, we have reviewed the principal pieces of the prosecution evidence against the seven accused persons, and, as we have said, the question is whether this evidence is sufficient to sustain the conviction and sentence recorded against the five adult accused and the order and direction under section 26 of the Bombay Children Act against the two minor accused persons. As far as the account given by the eye-witnesses is concerned, it suffers from serious discrepancies, and, unless the main particulars given in this account are corroborated by reliable evidence, no conviction can safely be based on the evidence of these witnesses. The complainant has given contradictory versions in his First Information Report and in his evidence before the trial Court. In his first information report, the complainant stated that the accused persons tried to re-excavate the private water-channel which had been previously closed by the deceased, Muhammad Yaseen, in the presence of the complainant himself and of the deceased, Muhammad Yasin, and P. Ws. Muhammad Khurshid and Muhammad Ghaus ; that all four of them tried to prevent the accused from doing so, when the accused retaliated by inflicting hatchet blows on Muhammad Yaseen, who died on the spot. This version contained in the First Information Report would appear to be improbable, in that it should be expected that the accused persons would retaliate by attacking all the four members of the complainant party who tried to prevent the accused from re-excavating the channel, and would not merely choose the deceased, Muhammad Yaseen, as the target of their retaliation. In fact, the evidence of the complainant would support the view that he was not at all present at the scene of olience, when the whole incident, which is the subject of the prosecution, occurred. He himself admits in his evidence that
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he was at a distance of one furlong away, grazing his cattle, when he, had heard cries and when he leached the scene, he found that Muhammad Yaseen had already been killed by hatchet blows and P. Ws. Muhammad Khurshid and Muhammad Ghaus were surrounded by the four persons carrying spades and were being prevented from going near the deceased. The complainant himself was kept at a distance, according to his own admission, by the threats held out to him by the accused persons. Then, in his First Information Report, the complainant specifically stated that Abdul Majid, Abdul Shakoor and lslamuddin were all armed with hatchets with which they had killed Muhammad Yaseen, whereas Mesita, Jalil Ahmed, Jamil Ahmed and Akhtar Hussain had spades with which they were trying to re-excavate the water channel, but, in his evidence, he stated that the persons who carried hatchets and inflicted hatchet blows on Muhammad Yaseen were Masita, Jalil Ahmed and Akhtar Hussain, and the persons who carried spades were Abdul Majid, Abdul Shakoor, Islamuddin and Jamil Ahmed. The other two eye-witnesses P. Ws. Muhammad Khurshid and Muhammad Ghaus also said that the persons armed with hatchets were Mesita, Jalil Ahmed and Akhtar Hussain. We fail to understand why the complainant should have made such a serious mistake in his F. I. R., when the Investigating Officer, A. S. I. Shahnawaz, who is supported by P. W. Muhammad Ghaus, stated that he had correctly recorded the F. I. R. And the names, as given to him by the complainant, of the three persons who carried hatchets and killed Muhammad Yaseen with hatchet blows. Further, the complainant stated in his evidence that he left P. Ws. Muhammad Khurshid and Muhammad Ghaus at the scene to stand guard over the body of Muhammad Yaseen, but P. W. Muhammad Ghaus stated that, in fact, all the three eye- witnesses namely, the complainant and P. Ws. Muhammad Khurshid and Muhammad Ghaus went to the police station with the dead body of Muhammad YesCen to lodge the F. I. R. These discrepancies would support the defence contention that in fact, the complainant was not present at the time the incident occurred, but came later to the scene of the offence, where he found the dead body of Muhammad Yaseen with hatchet injuries. Even P. W. Muhammad Khurshid stated in his evidence that the complainant was at a distance of one furlong from the varaat and arrived there only on hearing commotion. As regards P. Ws. Muhammad Khurshid and Muhammad Ghaus, we fail to understand as to why their statements were not recorded during the police investigation, and both these witnesses specifically stated before the trial Court that the police did not record their statements during the investigation of the offence. Then, there is variance, which to us looks rather serious, between the account of the incident given by P. W. Muhammad Khurshid and that given by P. W. Muhammad Ghaus. P. W. Muhammad Ghaus said that he saw from a distance of thirty to forty paces that the accused party was re-excavating the water-channel with spades, and then he' heard commotion and found his father, Muhammad Yaseen, surrounded by Masita, Akhtar Hussain and Jalil Ahmed, who were giving hatchet blows to the deceased, and that then he raised cries, whereupon the complainant arrived at the scene. P. W. Muhammad Khurshid said that both he and Muhammad Ghaus tried to intervene, but were surrounded by Abdul MAN, Islamuddin, Abdul Shakoor and Jamil Ahmed, who were carrying spades, but P. W. Muhammad Ghaus does not say that he at all attempted to intervene in the dispute between the deceased and the accused party, or that he by himself, or together with P. W. Muhammad Khurshid, tried to assist his father, or to save him from the hatchet blows which were being inflicted on him by accused Masita, Jalil Ahmed and Akhtar Hussain. One would naturally expect a son to make an effort to save his father from a situation of the kind narrated in the prosecution evidence, but P. W. Muhammad Ghaus did not behave in this manner and instead raised cries, whereupon Naseeruddin arrived at the scene. P. W. Muhammad Ghaus does not at all refer to P. W. Muhammad Khurshid. Nor does he say that P. W. Muhammad Khurshid also arrived at the scene or was in his company already when he heard commotion and found his father surrounded by three of the accused persons. It is the common ground of the three eye-witnesses that, three or four days before the incident, Muhammad Yaseen
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had closed the water-channel which had been in the use of the accused persons.- P. W. Muhammad Ghaus saw the accused re-excavating the water-channel, but did not attempt to remonstrate with the accused or attempted to dissuade them from doing so. Thus, there are inherent infirmities in the versions given by each of the three eye-witnesses and an impression is left on the mind that, in fact, none of them witnessed the occurrence, but that either all or one or two of them found the dead body of Muhammad Yaseen lying near the water-channel which he had previously closed. 7. Mr. Manzoor Hussain, the learned counsel for the State, contended that the version of the three eye-witnesses, namely, P. Ws. Naseeruddin, Muhammad Khurshid and Muhammad Ghaus, is supported by the evidence of recoveries of blood-stained clothes and hatchets under 'Mashirnamas' Exhs. 15 to 19. But one of the two Mashirs examined at the trial, P. W. Abdul Razzaq, repudiated the…
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