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Petitioner: SHAHZADO JAFFERI and 6 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery Title: SHAHZADO JAFFERI and 6 others vs THE STATE Case No.: Criminal Appeal No.89 of 2002 Date of Judgment:2003-07-29 Reported As: 2004 MLD 754 Result: Appeal accepted
JUDGMENT
JUDGMENT JUDGMENT ' The present appeal is directed against consolidated and common judgment dated 31-10-2002 passed by the learned Additional Sessions Judge, Kandhkot in two cases: (1) State Sessions Case No.45 of 1992 re: State v. Shahzado, arisinz out of Crime No.9 of 1992 of Police Station Tangwani for an offence punishable under Section 302, P.P.C., for the murders of deceased Sobho and Mst. Sadori and (2) Direct Complaint Sessions Case No.27 of 1993 re: Hadi Bux v. Shahzado and 6 others (the cresent appellants) for offences punishable under sections 302, 147, 148, 149, P.P.C. For the murder of deceased Sobho only. The trial Court gave finding that the prosecution could not prove the State Case No.45 of 1992. But the learned Judge, in State Case No.29 of 1993 convicted the appellants under section 302, P.P.C. And sentenced each of the appellants under section 302, P.P.C. To suffer R.I. For 20 years, under section 148, P.P.C. Sentenced each of them to suffer R.I for 2 years. The appellants were collectively directed to pay compensation ofRs.200,000 to the legal heirs of deceased Sobho, or in default thereof to suffer S.I. For 6 months each with benefit of section 382-B, Cr.P.C. 2. The facts giving rise to the complaint case as disclosed in the complaint are that the complainant, Hadi Bux and his nephew deceased Sobho were residing in a house. On 8-2-1992 at about sun set time the deceased Sobho went to the land which was near their house. Suddenly the complainant heard cries of the deceased therefore, he alongwith witnesses Kalatti (now dead) and Loung went there where they saw deceased Sobho was taking away cattle to the cattle Pond. They,also saw the appellants present there. Out of them the appellants Shahzado, Abdul Rehman, Gul Muhammad and Ghulam Mustafa were armed with guns, Niaz was armed with hatchet while
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S.No. Name Summary of evidence 1. P.W.-1 Bashir Medical Officer. He conducted post-mortem examination of Mst. Sadori who had 4 injuries caused by fire-arm weapon. The time between post-mortem and death was about 8 or 9 hours. He also conducted post-mortem examination of the deceased Sobho and found 6 injuries caused by fire arm weapons out of them 3 were wounds of entry and 3 were wounds of exit. Four injuries were found caused by hard and blunt substance, and one injury was found caused by sharp cutting weapon. Probable time between death andSharif and Dodo were armed with Lathies. The appellants were asking the deceased to leave the cattle otherwise he will be killed but the deceased was telling them that he would take the cattle to the cattle pond. Therefore appellant Dodo instigated the other appellants to kill the deceased. On the said instigation, the appellants who were armed with guns fired from their respective weapons at the deceased Sobho which hit him and the appellants armed with Lathies caused Lathi blows and appellant Niaz caused hatchet blows on the person of the deceased Sobho. Thereafter the deceased fell down on the ground. The complainant and witnesses requested the appellants not to kill the deceased but they threatened them and thereafter the appellants after raising slogans took away the cattle. The complainant and witnesses went to the deceased where they found him lying dead. 3. It is alleged in the complaint that due to odd hours they stayed the whole night and on the next day, in the morning the complainant went to Tangwani Police Station where he lodged the report but the S.H.O. Obtained his signature on a paper. The dead body was delivered to him after postmortem examination, Later on the complainant came to know that appellant Shahzado had killed his wife Mst. Sadori by levelling allegation of having illicit connections with the deceased Sobho. It is further alleged in the complaint that the S.H.O. In collusion with accused party had arrested only appellant Shahzado and spoiled his case, therefore, he made an application to D.I.G. Police against.The S.H.O. Thereafter, on 2-6-1992 he lodged the direct complaint before theCourt. Preliminary inquiry was conducted in which the complainant examined himself, Loung, Kalatti and Medical Officer. After considering the said evidence, the process was issued against the appellants. 4. On 19-4-1994 a charge under sections 302, 147, 148, 149, P.P.C. Was framed against the appellants but they pleaded not guilty. In support of the case, the Complainant examined the following three witnesses.
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postmortem was shown between 9 to 10 hours and between death and injuries was instantaneous. 2. P.W.-2 Hadi BuxComplainant, uncle of deceased. He supported the prosecution case. 3. P.W.-3 Loung Eye-witness brother of the deceased. He supported the prosecution case.
5. After giving up P.W. Kalatti the complainant closed the side. 6. Appellants in their statement recorded under section 342 Cr.P.C. Denied all the allegations of the complainant and claimed to be innocent. They did not examine themselves on oath or examine any witness in their defence. 7. After considering the material available on the record the learned trial Judge convicted the appellants as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment therefore, they have preferred the present appeal. 8. I have heard the advocates for the appellants, complainant, Assistant Advocate-General, for the State and with their assistance examined the record of this case very carefully. The arguments are based upon legal and factual aspect of the case. First. I will deal with the legal aspect of the case. 9. Learned advocate for the appellant No.7 has stated that the incident gave two versions; one version has been given in State Case being State Case No.45 of 1992 and second version, in Complaint Casebeing State Case No.27 of 1993. Therefore, the procedure laid down in the case of Nur Elahi v. The State reported in PLD 1966 SC 708 should have been adopted by the trial Court while trying Complaint Case and State Case but the trial Court did not adopt the said precedence therefore, the case is required to be remanded to the trial Court. Learned advocate for the respondents Nos.1 to 8 has adopted the above arguments. Whereas Mr. Ali Murad Abro'advocate for the Complainant has stated that the trial Court has committed no illegality in conducting the trial of both cases as there were two separate cases with contradictory versions, therefore, they were required to be' trialed independently from each other. The State Case was prosecuted by the State prosecutor and the witnesses mentioned in challan were examined. Whereas the advocate for the complainant conducted the prosecution of Complaint Case. In which all the relevant evidence was led. He has further argued that the facts and circumstances of the case are different from the facts and circumstances of the Nur Elahi's case therefore, the rule laid down in the said case is not attracted. 10. Learned Assistant Advocate-General has adopted the arguments of learned Advocates for the appellants. 11. It is an admitted position that State Case was filed by the appellant Dodo in respect of murders of Mst. Sadori and Sobho whereas the Complaint Case was filed by the complainant Hadi Bux in respect of murder of deceased Sobho only. The facts given in both the cases are completely contradictory to each other. As such there are two cases between the parties. The rule laid down in Nur Elahi's case is as under: "After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the Police challan, if they were not already examined on behalf of the complainant as Court witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on the parties. The accused person would in. Addition
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obviously have the. Right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the public prosecutor to consider whether or not he should withdraw from the prosecution. With the permission of the Court, under section 494 of the Code of Criminal Procedure in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in anacquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial. By way of cross- examination of the relevant witnesses as permitted by law." 12. It is pertinent to point out that the Paper Book has been prepared in such a way that the proceedings of trials of State Case sand Complaint Case are available. I am aware of the fact that facts and circumstances of another case can not be taken into consideration while deciding a case but because of the peculiar circumstances of the case some deviation is made in order to appreciate the legal aspect of the case only. 13. A perusal of Paper Book reveals that the charge in the State Case was framed on 23-1-1994 thereafter no proceedings were held. After the Complaint Case was brought on the record the said case was taken up first. The charge in Complaint Case was framed on 19-4-1994 and case concluded with the recording of statement of accused under section 342. Cr.P.C. In the year 2001. It appears that thereafter in the year 2002 the State Case was taken up. The entire evidence led by the prosecution and the statement of accused under section 342. Cr.P.C. Were recorded. Thereafter arguments were heard in both the cases and then both the cases were disposed of through a common judgment which is impugned in the present appeal. From the above facts it is clear that to some extent the rule laid down in Nur Elahi's case was followed. The main objection about the trials is that the trial Court did not examine the witnesses of State Case in the Complainant Case as held in the Nur Elahi's case. 14. In order to appreciate the above point, I have once again been compelled to give some facts of the State Case otherwise it will not be possible to properly appreciate the legal aspect of the case. 15. The facts of the State Case are that Mst. Sadori d/o appellant Dodo was married with the appellant Shahzado. The house of appellant Shahzado was at some distance from the house of appellant Dodo. On 9-2-1992 at about 1.00 a.m. The appellant Dodo was sleeping in his house when he heard fire-arm reports coming from the house of the appellant Shahzado therefore, he and appellant Sharif rushed towards the house of appellant Shahzado. After reaching there they saw appellant Shahzado armed with a gun standing in the courtyard of his house whereas the dead bodies of Mst. Sadori and Sobho were lying naked in the Courtyard. The appellant Shahzado made extra judicial confessionbefore the appellants Dodo and Sharif that he had killed the deceased persons as he found them in compromising position. Thereafter leaving behind the appellant Sharif at the Wardat, the appellant Dodo went to their Nekmard Mukeem Gahi Khan but he was not available therefore, his son was informed about the incident and then he went to the police station and lodged the report at 7.00 a.m. In the morning. The police visited the Wardat, prepared Mashirnama of Wardat and dead bodies in presence of appellant Ghulam Mustafa. The dead bodies were sent to hospital and then the appellant Shahzado was produced before a Magistrate where his judicial confession was recorded. After completing the investigation the case was challaned. 16. From the above facts it is clear that the witnesses in the State Case are appellant, Dodo being complainant, appellant Sharif being eyewitness, appellant Ghulam Mustafa being Mashir of Wardat of the incident. All the three appellants being accused in the case before the trial Court could not have been examined in the Complaint Case as witnesses, because it would have been
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against the spirit of Article 13(b) of the Constitution of Islamic Republic of Pakistan, 1973. Another important witness was appellant Ghulam Mustafa being Mashir of Wardat and dead bodies. He was also accused before the trial Court in this case and for the same reasons he also could not have been examined as a witness. Another witness was Medical Officer. He was examined by the complainant in this case. Another witness was Investigation Officer. His name was mentioned in the direct complaint as one of the witness of the complainant but the complainant did not examine him as a witness in the preliminary inquiry before the trial Court for the reasons best known to him. Then there was Magistrate who recorded the confession of appellant Shahzado. The confession appears to be in line with the story of State Case. If he had been examined in this case then it would have materially affected the Complaint Case and the complainant would have not liked to allow the said evidence to come on the record. The next witness was the Mashir of arrest and recovery of the gun. There is no evidence that any empties were secured from the Wardat of Complaint Case as such even if the said Mashir would have been examined then it would have not helped the Complaint Case in any manner because mere recovery of gun would not have been enough to connect the accused with the commission of crime unless the same is connected with empties, if recovered from the place of incident which is not so in the present case. 17. The evidence of the State Case was such that if it had been led in the Complaint Case then it would have come in direct conflict and belied the Complaint Case at least to the extent of date, time, place of the incident and allegation of the complainant that the deceased was not alive after sunset time. But on the contrary it would have supported thecause of appellants and in such a situation the complainant would have been seriously prejudice. The Honourable Supreme Court in the case of Nur Elahi has devised the above procedure so that the complainant should not be prejudice. Thus the examination of witnesses of State Case in Complaint Case would have frustrated the very purpose of rule laid down in the Nur Elahi case. 18. Under these circumstances I feel that the trial Court after considering all these facts did not find it necessary to call the witnesses mentioned in the challan of State Case. It is pertinent to point out that in Nur Elahi's case Honourable Supreme Court of Pakistan gave discretion to the trial Judge to examine the witnesses of State Case in the Complaint Case. The relevant portion of the observations of the Honourable Supreme Court of Pakistan appears at page 712: "During that case the learned trial Judge may call the witnesses mentioned in the Police Challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. 19. The word 'may' used in the above observation clearly demonstrates the intention of Honourable Supreme Court that there may be some cases in which it will not necessary to examine the witnesses mentioned in the challan of police/State case, therefore, a discretion has been given to the trial Judge to examine such witnesses or not. As such the non-examination of the witnesses mentioned in the State case will not materially affect the complainant's case in view of peculiar circumstances of the present case. 20. It is pertinent to point out that rule laid down in Nur Elahi's case was given in the circumstances when the State Case and complainant's case were filed by one and same person viz complainant or by one of the witnesses of the State Case. It also appears that the incident in both the cases of Nur Elahi's case was one and same which had taken place on the same date, time and place, but with variation in same facts, number of accused persons or their role. In the present case it would be noticed that the State Case was filed by one of the appellants and the Complaint Case was filed by the complainant Hadi Bux who was not the witness of the incident of State Case. The appellant Dodo gave his own account and version of the incident whereas the complainant gave completely different and contradictory version to that of State Case by showing the complainant, eye-witness and Mashir of State Case as accused in this case. It is further noticed that in both the
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cases date of incident is different, time is different, place of incident is different, witnesses are different, story is different, number of accused are different, their role isdifferent, witnesses of State Case are accused in complainant's case, even the evidence is different to the extent that if evidence of State Case was. Led in Complainant Case then that case would have been spoiled. As such the facts and circumstances of the present case are distinguishable from the facts and circumstances of Nur Elahi's case. 21. The Nur Elahi's case was considered by the Full Court of Honourable Supreme Court of Pakistan in a case of Zulfiqar Ali Bhutto v. The State reported in PLD 1979 SC page 53 and after examining the rule laid down in the said authority observed at page 77 as under: "Therefore, there was no necessity for a separate trial of the two cases when, technically speaking there were neither two sets of accused nor different versions nor any additional evidence to be examined by the, complainant. It was only to avoid prejudice to the Complaint that a particular procedure was devised in the reported case of Nur Elahi but to say that invariable it should be followed even if the facts are distinguishable is not correct, as it does not amount to a declaration of law. 22. Having held so, the Honourable Supreme Court itself deviated from the rule laid down in Nur Elahi case. 23. Nur Elahi's case was again considered by the Honourable Supreme Court in a case of Raja Khushbakhtur Rehman v. The State reported in 1985 SCM R 1314 and in that case after relying upon Zulifqar Ali Bhutto's case deviated from the rule laid down in Nur Elahi's case, as the facts and circumstances were distinguishable from the said case and further observed at page 1317 as under:-- "Nur Elahi's case, however, does not lay down any invariable rule that the complainant's case is always to be tried first." 24. Again the Honourable Supreme Court considered the above mentioned rule in another case of Karim Bux v. Zulfiqar reported in 1997 SCM R 334. After relying upon the cases of Zulfiqar Ali Bhutto and Raja Khushbakhtur Rehman, deviated from that rule laid down in Nur Elahi's case. 25. From the decision of Full Court of Honourable Supreme Court it is clear that rule laid down in Nur Elahi's case does not amount to declaration of law and if the facts and circumstances of case are distinguishable from Nur Elahi's case then the rule laid down therein can be deviated. As such partial or complete deviation can be made from the rule laid down in Nur Elahi's case keeping in view the facts and circumstances of each case but normally the rule laid down in Nur Elahi's case should be followed. 26. As already observed the facts and circumstances of the present case are distinguishable from the facts and circumstances Nur Elahi's case therefore, partial or complete deviation can be made from the said rule in order to do the complete justice. 27. Apart from the above position in Nur Elahi's case the most important factor which weighed the Honourable Supreme Court of Pakistan in giving the detailed procedure to try the State and direct complaint cases, is that no prejudice should be caused to the complainant. At page 712 it has been observed as under:-- "This procedure is being suggested .To avoid a difficulty that might otherwise confront the complainant. If the police challan is taken up first for trial, the complainant would be under a handicap insofar as he would not be in a position to cross examine the witnesses for the prosecution." 28. In the present case the complainant has not made any complaint against the procedure adopted by the trial Court for the trial of both cases, but on the contrary he has supported the said procedure, as such no prejudice has been caused to the complainant.
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29. After considering the material available on the record, I am of the considered view that in the peculiar circumstances of the present case the procedure adopted by the trial Court did not cause any prejudice to anybody therefore, the trial was conducted in proper manner. 30. Now, I will come to the next point, i.e. Common judgment in both the cases. 31. Learned Assistant Advocate-General has stated that State Case and Complaint Case should not have been decided by a common judgment as it was an illegality. He has relied upon the case of Gulab v. The State 2003 YLR 2148. The said argument has been supported by the advocate for the appellants. Mr. Ali Murad Abro, Advocate for the complainant has stated that common judgment is merely an irregularity which can be cured under section 537, Cr. P .0 . 32. In the case of Gulab (supra) two cases were disposed of by a common judgment but while deciding one case the evidence of another case was considered therefore, this Court after relying upon the case of Muhammad Gulzar v. Muhammad Ashraf reported in 1981 SCM R 435, held that the common judgment was illegal because it had caused miscarriage of justice. In the present case the situation is different. The trial Court had framed three points for determination which are as under:- "(i) Whether deceased Sobho and Mst. Sadori died of unnatural death? (ii) Whether Mst. Sadori and Sobho were done to death by accused Shahzado, in his house being 'Kayo-Kari' due to 'Ghairat' on 9-2-1992 at 0100 hours? (iii) Whether accused Shahzado and 6 others named above forming unlawful assembly and carrying deadly weapons committed Qatli-Amd of deceased Sobho by causing him injuries with guns, hatchet and Lathis on 8-2-1992 at sunset time in the land of deceased Sobho as alleged." 33. The Point No.1 is common with regard to the unnatural death of two deceased persons which was decided on the admission of the parties. The trial Court did not discuss the evidence while deciding the said point. 34. The Point No.2 was framed on the allegation made in the State Case. The reasons given by the trial Court on Point No.2 are at page No.5, of the judgment. Learned Assistant Advocate-General has read the said finding and finally stated that through this finding the question involved in State Case was decided on the evidence led in that case alone and that the evidence of Complaint Case was neither referred to nor discussed. 35. The Point No.3 was framed on the allegatioh levelled in the Complaint Case. The learned Assistant Advocate-General has read the finding of the trial Court appearing at page No.6 of the judgment but his arguments are that while deciding the said point the trial Court had neither referred to the evidence of the State Case nor discussed it. 36. Thus from the above position it is clear that both the points were decided after considering the evidence recorded in each case. No evidence of other case was considered while deciding the State Case or Complaint Case, as such the authority relied upon by the learned Assistant Advocate-General is not applicable in the circumstances of the present case. 37. I have gone through the impugned judgment and find that the trial Court has given the facts of each case separately and then decided the cases on the evidence and the findings arrived at on the above mentioned points for determination, through the common judgment. However, this can be termed as merely an irregularity, which can be cured under section 537, Cr.P.C. As such the arguments of learned Assistant Advocate-General have no force. 38. Now I will come to the facts of the case. Learned counsel Advocate for the appellant No.7 has, stated that appellant Ghulam Mustafa is nephew of Gahi Khan who filed a theft case against the complainant and the same has been admitted by the complainant in the deposition as such the complainant…
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