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Petitioner: HIDAYATULLAH AND ANOTHER VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha, Ghulam Rasool K. Shaikh Title: HIDAYATULLAH AND ANOTHER vs THE STATE Case No.: Criminal Appeals Nos, 65, 82 and Confirmation Case No, 7 of 1970 Date of Judgment:1971-07-23 Reported As: PLD 1971 Karachi 817 Result: Appeal dismissed
JUDGMENT
JUDGMENT GHULAM RASUL K. SHAIKH, J.--These are appeals against the judgment of the learned Additional Sessions Judge, Larkana, convicting the appellants for an offence under section 302/34, P. P. C., and finding no extenuating circumstance sentencing them to death. This case is also before us on a reference under section 374, Cr. P. C. for the confirmation of the death sentence. The incident had taken place on 5-6-69 at 9-30 p.m. on the road in the town of Larkana and the first report was lodged by Muhammad Moosa on the same day at 11-50 p.m. at the Larkana Police Station and it was recorded by Mr. Ghulam Muhammad S. H. O. In this incident two persons Ali Hassan and his servant Nizamdin were killed. Badaruddin is brother of Ali Hassan deceased while Mohd. Ramzan is their maternal uncle and Mohd. Moosa is their cousin. Mohd. Hassan is relation and nekmard of Ali Hassan. Mazhardin is brother of Nizamdin. Mohd. Kassim is not related to them. The appellants are neither related to the witnesses nor they are related inter se. Mohd. Moosa is a lad of 16 summers while Badaruddin is a lad of 12 summers and they were Matric students studying in Municipal School at Larkana. Ali Hassan was running a Bidi Karkhana while Nizamdin deceased was his servant. Mohd. Hassan was a fish contractor and Mond. Kassim was a fish merchant. About 15/20 days before this incident the appellants usedto tease Mohd. Moosa and asked him to keep friendship with them but they (sic) refused. They had told him on 2/3 occasions. He, therefore, made a complaint to Mohd. Hassan. On 5th June 1969, Mohd. Moosa and Badaruddin were returning to their houses after studying in Jinnah Bagh and on the way the present appellants met them near fish market. Anwer appellant caught hold of Mohd. Moosa but he rescued himself and
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ran away. Badaruddin also followed him. Both of them went running to Ali Hassan where Ali Hassan, Mazhardin and Nizamdin were present and the misbehaviour of the appellants was reported to them. Effort was made to contact Mohd. Hassan but he was not available. Thereafter at about 9-30 p.m. Mohd. Moosa, Badaruddin, Ali Hassan and Nizamdin while going towards the Empire Cinema passed by the shop of Akbar which was closed. There was an electric pole. There were hotels and shops near the cinema. The present appellants were found standing near the shop of Akbar. Ali Hassan asked the appellants as to why they had misbehaved with Mohd. Moosa whereupon the appellants abused them and made preparations to fight. Appellants Anwar Ali and Alibux took out the knives. Appellant Hidayatullah caught hold of Ali Hassan while appellant Dhanibux caught hold of Nizamdin. Then appellant Anwarali stabbed Ali Hassan with the knife while Alibux appellant stabbed Nizamdin. Each of them received two injuries. On receiving the injuries both fell down. On the alarm which was raised Mohd. Kassim and Ramzan came running, and they also witnessed the incident. Thereafter the appellants ran away leaving behind one knife, handkerchief and one shoe. Both the injured persons were removed in a tonga to the civil hospital. On the way Nizamdin died and on reaching the hospital Ali Hassan also died. Mohd. Moosa went to Mohd. Hassan and informed him. He referred him to police. Consequently Mohd. Moosa went to the police station and lodged the first report. Mr. Ghulam Mohd. S. H. 0. after recording the first report accompanied Mohd. Moosa to the scene of offence and it was visited in presence of Mashirs Abdul Karim and Sahib Khan. There was blood on the ground and the blood-stained earth was secured. One blood-stained knife, one handkerchief, one shoe and one blood-stained lathi were found lying there, and the same were secured and sealed, Mashirnama Exh. 18 was prepared. On the same night statements of Mazhardin, Badaruddin, Mohd. Kassim, Mohd. Ramzan, Mohd. Safar, Akbar, Ladho and Abdul Rashid were recorded. On the morning of 6th June the S. H. 0. visited the hospital and prepared the inquest reports of the dead bodies. On 6th June 1969, appellant Hidayatullah was arrested from the Karkhana of Khan Mohd. and blood-stained shirt and trousers were secured from his person in presence of Mashirs Mohd. Hassan and Mohd. Ramzan and sealed. At that time there were also some injuries on his person. Mashirnama Exh. 13 was prepared. On the same day appellant Dhanibux was arrested from his house and blood-stained trouser was secured from his person in presence of the same Mashirs and sealed. Mashirnama Exh. 14 was prepared. On 7th June 1969, appellant Alibux was arrested from his house and at that time he was wearing a blood-stained shirt and loin cloth which were secured in presence of Mashirs Mohd. Hassan and Pirbux and sealed. Mashirnama Exh. 16 was prepared. He had some injuries on his person. On the same day appellant Anwarali was arrested and blood-stained shirt and trousers were secured from his person in presence of Mashirs Mazhar Ali and Ibrahim and sealed. Mashirnama Exh. 24 was prepared. There were injuries on his person. He then took the S. H. 0. as well as the Mashirs Mohd. Hassan and Mazharali to the rice canal and pointed a place saying that he had thrown the knife there. Three divers got into the canal and searched out the knife. There was no blood on it as it appeared to have been washed. Mashirnama Exh. 14 was prepared. On the same day appellant Alibux was made to wear the shoe recovered from the scene of offence in presence of Headmunshi and 3rd Class Magistrate and it fitted him. Mashirnama Exh. 22 was prepared. Since appel-lants Hidayatullah, Anwarali and Alibux had also minor injuries they were sent to the hospital. On 8th June 1969, statements of Lalu and Gul Hassan were recorded. On 9th June 1969, the statements of Mazhardin, Badaruddin, Mohd. Kassim and Mohd. Ramzan were recorded under section 164, Cr. P. C. On 17th June 1969, the appellants were challaned. The blood-stained clothes were sent to the Chemical Analyser and he discovered human blood on the knife secured from the scene of offence, clothes of appellant Hidayatullah, loin cloth of appellant Alibux and the earth
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while the blood on the remaining articles was disintegrated and, therefore, its origin could not be determined. The appellants proclaimed their innocence and denied the various allegations. It was denied by appellant Anwarali that he had pointed out the place from where the knife was said to have been recovered. In the committal proceedings appellant Anwarali, Hidayatullah, Alibux when questioned about the presence of injuries on them and the recovery of the blood-stained clothes from their person replied that they would answer these questions in the Sessions Court. Similarly Dhanibux appellant when questioned about the recovery of the blood-stained trousers from his person stated that he would answer this question in the Sessions Court. When their statements were recorded under section 342, Cr. P. C. in the Sessions Court they seated that they had been beaten by the police and, therefore, they received the injuries. They did not examine any witness in defence. The prosecution examined Ubedullah Head Constable, Mohd. Moosa complainant, Badaruddin, Mazhardin, Mohd. Ramzan, Mohd. Kassam, Mohd. Hassan, Abdul Karim Mashir, Mazharali Mashir, Mr. Ghulam Mohd. S. H. 0., Mr. Abdul Khaliq A. S.I.P. and Shafi Mohd. Tapedar while the evidence of Dr. Abdul Qaiyum recorded in the committal proceedings was brought on record. The injuries on the various persons are borne out by the medical evidence. They had the following injuries : "Nizamdin. (1)Injury No, 1.--One stab wound 1" x 1/3" x deep to the chest cavity situated 1" below and medial to the left nipple directed medically and upwards in its depth. (2)Injury No, 2.--One incised wound 1" x 1/2" x scalp deep on the left parietal eminence." According to the medical officer the injuries were caused by sharp-cutting weapon such as knife and were ante-mortem. The death was due to shock and haemorrhage as a result of the injuries. It was further stated by him that injury No, 1 was individually sufficient in the ordinary course of nature to cause death. "Ali Hassan. (1)One stab wound 1" x1/4" deep to the cavity on the lower part of chest-- (2)One stab wound 3/4" x 1/6" deep to the abdominal cavity with omentum protruding out on the left by hypochondrium." According to the medical officer the injuries were ante-mortem and were caused by sharp-cutting weapon such as knife. The death was due to shock and haemorrhage as a result of the injuries which were collectively sufficient in the ordinary course of nature to cause death. "Hiclayatullah. One lacerated wound i" x 1/10" superficially scalp deep over the left parietal region." The injuries had been caused by a hard blunt object such as an iron rod. "Mohd. Anwar. (1)One lacerated wound 4" x 1/6" skin deep above the left eye-brow. (2)One lacerated wound 1" x 1/6" superficially skin deep on the right side of forehead near the mid line. (3)One abrasion li" x 3/4" on the left illiac crest injuries were simple." Injuries Nos, 1, 2 and 3 had been caused by some hard pointed object such as iron rod and No, 3 by hard blunt substance. All Bux. (1)One lacerated wound 3/2" x i" superficially scalp deep on the right side of frontal region. (2)One lacerated wound 3/4" x 1/3" superficially scalp deep on the mid line of frontal region. (3)One abrasion 1/3" x 1/3" on the back of right elbow." Injuries Nos, 1 and 2 were caused by hard pointed object such as iron rod and No, 3 was caused by blunt substance. As regards the identity of the appellant with the crime the evidence is ocular as well as
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circumstantial. The ocular testimony consists of five witnesses and they are, Mohd. Moosa, Badruddin, Mazhardin, Mohd. Kassim and Mad. Ramzan. Mohd. Moosa stated that the appellants were on friendly terms with each other and they used to tell him to keep friendship with them but he refused. He, therefore, made a complaint to his nekmard Mohd. Hassan. On the day of the incident at about 8-30 p.m. he and Badaruddin who was his class-fellow were returning to their houses after studying in the garden when on the way the present appellants met them. He further stated that appellant Anwar caught him by the arm and told him that they would not spare him. He struggled and succeeded in rescuing himself and took to heels. Badaruddin also ran away with him. Then they both went to Ali Hassan at his place of business and complained to him. At that time Mazhardin and Nazamdin were also present. Ali Hassan told Badaruddin to inform Mohd. Hassan but Bardaruddin came back and stated that Mohd. Hassan was not available in his house and was in the fish market. After this, he along with Nizamdin, All Hassan and Badaruddin went towards Empire Cinema and at that time it was about 9-30 p.m. They reached the shop of Akbar which was closed. They found the present appellants standing near the shop and they were identified on the electric pole light. Ali Hassan asked the appellants why they had quarrelled with Mohd. Moosa whereupon they became ready to fight. Hidayatullah caught hold of Ali Hassan while Dhanibux caught hold of Nizamdin and then appellants Anwarali and Alibux stabbed All Hassan and Nizamdin respectively with the knives. On the alarm Mohd. Kassim, Ramzan and others arrived and they witnessed the incident. Thereafter the appellants ran away. Ali Hassan and Nizamdin were removed to the hospital but on the way Nizamdin died while Alibux died on reaching the hospital. He further stated that at the scene of offence knife, shoe and handkerchief of Alibux had fallen down. He went and informed Mohd. Hassan and thereafter lodged the first report. In cross-examination he admitted that he had not stated in the first report that he had reported to Mohd. Hassan when the appellant had told him to keep friendship with him. He had also not stated in the first report that he and Badaruddin were returning after studying in the Jinnah Garden, nor he stated that Ali Hassan told Badaruddin to inform Mohd. Hassan or he went to Mohd. Hassan and he was not available. He denied that he had any knowledge that the appellants were standing near the shop before they proceeded to that side. He also denied that they had gone in search of the appellants. He further stated that they were going to the Police Station in order to complain against the appellants. A suggestion was made in cross-examination that appellants Hidayatullah and Dhanibux were not present at the scene of offence while the witnesses had attacked Anwarali and Ali Bux but this suggestion was repelled by Mohd. Moosa. He admitted that several persons had gathered at the scene of crime when the alarm was raised. He had not mentioned about the knife and the handkerchief in the first report. Badaruddin is the next witness. His evidence is similar to the evidence of Mohd. Moosa, and, therefore, it is unnecessary to repeat it. He had denied his relationship with Mohd. Ramzan witness and Mohd. Hassan although he had admitted in the committal proceedings that Ramzan was his maternal uncle and Mohd. Hassan was related to him. He had not stated either in his police statement or in his statement under section 164, Cr. P. C. that they were going to the Police Station to make the complaint. He also denied that he was asked by Ali Hassan to inform Mohd. Hassan or he had gone to the house of Mohd. Hassan to inform him. In this connection it may be pointed out that the previous witness Mohd. Moosa has stated that Badaruddin was sent by All Hassan to inform Mohd. Hassan, and he had come back saying that Mohd. Hassan was not available in the house and had gone to fish market. The same suggestion was also made to him about the absence of two of the appellants and the assault on the other two and this suggestion was also denied by him. He had not stated either in the statement recorded by the police or under section 164, Cr. P. C. that the knife which had fallen on the scene of offence belonged to Alibux appellant.
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The third witness is Mazhardin who was present with Ali Hassan and Nizamdin when the two boys had gone and made complaint to them against the appellants. His further evidence is the same and he has fully supported the prosecution. However, he stated that they were going to Mohd. Hassan towards fish market when near the shop of Akbar the incident had taken place. He was confronted with his statement recorded under section 164, Cr. P. C. in which he had stated that they were going to Hidayatullah and others. Here it may be mentioned that Hidayatullah is one of the appellants. He had not stated either in his police statement or his statement recorded under section 164, Cr. P. C. that Badaruddin was deputed by Ali Hassan to inform Mohd. Hassan. The suggestion which was made to the previous two witnesses with regard to the absence of the two of the appellants and the assault on the other two was also denied by him. The fourth witness Mohd. Ramzan stated that at about 9-30 p.m. he was standing in front of the Empire Cinema as he had gone there to purchase bidis and give rounds (sic). He found Nizamdin, Ali Hassan, Mohd. Moosa and Badaruddin going towards the fish market. They had no weapon. He followed them as he had also to go towards the same direction. He further stated that near the shop of Akbar he found the present appellants standing. The shop was closed at that time. There was electric pole light at that spot. He continued that Ali Hassan inquired from Anwar All appellant as to why they had quarrelled with Mohd. Moosa and on this Anwar Ali abused All Hassan, then appellant Hidayatullah caught hold of Ali Hassan by his arm and appellant Anwar Ali took out the knife and stabbed Ali Hassan twice as a result of which All Hassan fell down. Dhanibux caught hold of Nizamdin while Alibux took out a knife and stabbed Nizamdin who also fell down. Cries were raised which attracted Mohd. Karim and other persons. The appellants after inflicting the injuries ran away. One knife, one shoe and one handkerchief of the appellants had fallen down. They carried Nizamdin and Ali Hassan in a tonga and took them to the civil hospital but on the way Nizamdin died while Ali Hassan died on reaching the hospital. Mohd. Moosa was deputed to inform Mohd. Hassan and also to lodge the report. He denied that Badaruddin was his nephew. He also denied that the witnesses had inflicted any injury upon the appellants. Nor he had seen any injury on them. The fifth witness is Mohd. Kassim. He stated that about 9-30 p.m. he was standing in front of Empire Cinema when he heard the noise from the side of the shop of Akbar. He therefore went running and found appellants. Hidayatullah and Dhanibux having caught Ali Hassan and Nizamdin respectively and then appellants Anwar Ali and Alibux stabbing those two persons with the knives respectively. Both the injured fell down and the appellants escaped. One knife, one handkerchief and one shoe of the appellants had failed down there. Then Moosa, Badaruddin and Ramzan took away Nizamdin and Ali Hassan to the hospital in a tonga. He returned to his own house. He had found 10 persons at the scene of offence and they were the witnesses and the appellants. He did not know the cause and origin of the fight. He further stated that the witnesses did not inflict any injury upon the appellants nor he had seen any injury on them. Then is the evidence of Mohd. Hassan who stated that he was the nekmard of the witnesses. At about 10 p.m. Mohd. Moosa came to him when he was in his house and informed him that he, Mazhardin, Badaruddin, Nizamdin and Ali Hassan were going on Empire Cinema Road when appellant Hidayatullah caught hold of Ali Hassan and appellant Dhanibux caught hold of Nizamdin and they were stabbed by appellants Anwarali and Alibux respectively by the knives and then they ran away. He further stated that he was also informed that Nizamdin had died on the way while Ali Hassan had died on reaching the hospital. He, therefore, directed Mohd. Moosa to lodge the report. Thereafter he went to the civil hospital and found the two dead bodies there. At the outset it may be stated that the learned counsel for the appellants did not challenge the incident and the manner in which it took place as well as the participation of all the four appellants in this crime but what they emphasised was that the appellants had acted in the exercise of the
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right of private defence, as they had been attacked by the witnesses on account of the previous incident in which Mohd. Moosa was caught hold of by appellant Anwar Ali, and further the case of appellants Dhanibux and Hidayatullah was distinguishable as neither they had any weapon nor they had inflicted any injury and they had no knowledge that the other two appellants had knives or would stab the two deceased persons and it was also a case of sudden fight and the injuries had been Inflicted on the spur of the moment and there was no talk between the appellants before the assault and, therefore, the latter two appellants could not be held to be guilty of any offence. Despite the concession made by the learned counsel for the appellants we would like to examine the evidence in order to satisfy ourselves whether the complicity of the appellants had been established or not. The contentions which had been raised by the learned counsel would then be examined in the light of the evidence and the discussion. We have gone through the entire evidence and on its appraisal we see no reason to disagree with the conclusions reached by the learned Additional Sessions Judge. Nothing had been brought on record to discredit the testimony. Of course Mohd. Moose, Badaruddin, Mazhardin and Mohd. Ramzan were related to each other, but the relationship as has been, settled, is by itself no ground to reject the evidence. Their presence at the time of this incident cannot be doubted. They had accompanied the injured persons to the hospital. After reaching the hospital when both the injured persons had died Mohd. Moosa immediately went to Mohd. Hassan and then he proceeded to the Police Station and lodged the report. Muhammad Kassim is an independent witness and he had no reason to falsely depose against the appellants. Of course he was a fish merchant while Muhammad Hassan was a fish contractor but it does not establish that they had any connection with each other or on that account Muhammad Kassim would falsely support the prosecution. Muhammad Moosa, Badaruddin and Mazhardin were going with the deceased while Muhammad Ramzan and Muhammad Kassim were attracted by the commotion which was raised as a result of the murderous assault. The next piece of evidence against the appellants Alibux, Anwarali and Hidayatullah is the recovery of blood-stained clothes from their person. This recovery has been established by the evidence of Muhammad Hassan Mashir and the Investigating Officer corroborated by the Mashirnamas prepared to that effect. Subsequently these clothes were sent to the Chemical Analyser who detected human blood vide his report Exh. 26. The explanation of the appellants that the blood had appeared on their clothes on account of the injuries which had been received by them does not appear to be true. In the committal proceedings when they were questioned they declined to answer and stated that they would give the answers in the Sessions Court. Thus the version of the appellants is belated and can be given no credence. Another piece of evidence against the appellant Alibux is that the shoe recovered from the scene of offence fitted him. To establish this there is the evidence of Hamidali Mashir. This test had taken place in presence of Headmunshi and 3rd Class Magistrate who had prepared the Mashirnama Exh. 22, and it bears his signature. The fact that the shoe fitted the appellant cannot be an unhappy coincidence. In the circumstances of the present case it is not possible to accept his denial. There is another piece of evidence against appellant Anwar. He took the police and the Mashirs to the rice canal and pointed a place from where the divers had brought out a knife. This recovery has been established by the evidence of the Mashir as well as the investigating officer corroborated by the Mashirnama. Of course the knife was not stained with blood but the knife was found from a place which could not be known unless the appellant himself had thrown it there. There is also the prosecution allegation that he had stabbed one of the deceased persons which leads to the conclusion that this was the knife which was used by him in the commission of the crime. The appellant cared to offer no explanation. His case is of bare denial which cannot be accepted. In this connection it may be pointed out that the learned Additional Sessions Judge entertained the
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view that because of the absence of the blood on the knife it was not established that this was the knife which was actually used by the appellant but for the reasons which we have stated we are unable to bear with him. The learned Additional Sessions Judge also relied upon the recovery of the knife from the scene of offence and accepted the evidence of the witnesses that this knife was used by Alibux appellant bat in view of the earlier statements of the witnesses wherein no allegation was made that Alibux had thrown the knife there we are unable to place any reliance upon it. Lastly, there is the presence of injuries upon Alibux, Anwarali and Hidayatullah as established by the medical evidence. However, the evidence on record does not indicate that these injuries had been received by the appellants during the fight. None of the prosecution witnesses claimed to have inflicted any injury upon the appellants. They even denied that they had seen any injury on them. The appellants too did not allege that they had received those injuries during the fight. Thus the presence of the injuries on the appellants cannot be availed of by the prosecution. On the appraisal of the evidence, we have no hesitation in holding that all the four appellants participated in the assault which resulted in death of two innocent and defenceless persons. The observation of their Lordships of the Supreme Court in one of the reported cases, which reads, "the number of persons accused is not out of proportion to the nature of their enterprise E and the result they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed as against mere plea of false implication…
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