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Petitioner: KARIM BUX VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Munawar Ali Khan, Syed Sajjad Ali Shah Title: KARIM BUX vs THE STATE Case No.:Criminal Appeal No. J-148 alongwith Criminal Revision No. 53 of 1979 Cr.
JUDGMENT
Reported As: 1983 P Cr. L J 509 Result: Appeal dismissed Judgment JUDGMENT SAJJAD ALI SHAH. J.-Appellant has filed this appeal from jail against the judgment dated 31st January, 1979 of learned Sessions Judge, Sanghar, whereby he has been convicted for offence under section 302, P. P. C. And is sentenced to life imprisonment. Alongwith this appeal there is con- -nected revision application filed by the complainant in which the prayer is that the sentence awarded by the trial Court is inadequate and capital punishment should be submitted. We propose to dispose of the appeal as well as revision application together by single judgment. 2. Shortly stated the prosecution case is that deceased Muhammad Saleh, a young lad of about 14 years at the time of incident, was brother of complainant Allah Bux and lived with him in village Mobin Wassan in Taluka Shahdadpur, District Sanghar. Deceased was on friendly terms with his co- villager P. W. Doso Jokhio. Appellant Karim Bux .Had a hotel in that village and had employed deceased in his hotel as servant on monthly pay of Rs. 30. Appellant had an evil eye on the deceased and started making advances to him and in that connection pestered the deceased for unnatural offence but the deceased refused and left the job in the hotel. It is further the case of the prosecution that thereafter the appellant kept on pressurizing the deceased to give up friendship with Doso Jokhio and cultivate friendship with him (appellant). On the day of incident i.e. 9th October, 1975, at about 5-00 p. m., deceased Muhammad Saleh was in the field of Haji Sukhio Wagan, which is near village Mobin Wagan when appellant was seen going towards him. Allah Bux complainant and P. W. Bachal were at that time sitting in the otak of complainant which was at a distance of 40-50 paces from the wardat. The witnesses saw him approaching the deceased and having a talk with him, whereafter appellant slapped the deceased. Both the witnesses raised ---
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hakals--- and ran to the spot. In the meantime appellant took out pistol from the fold of his shalwar and fired a shot from close range at the chest of Muhammad Saleh, who became injured and fell down prostrate. Another witness by name Hyder Wassan who was in his field at a distance of about 40-50 paces saw the incident and came running to the spot. Appellant unloaded his pistol and then reloaded it and threatened the witnesses not to come near. Clothes of the appellant became stained with blood and after the arrival of the witnesses at the spot the appellant went away with his pistol. Witnesses went near and turned the deceased, who was still alive and informed them that the appellant told him that he had forbidden him several times for not having friendship with Doso Jokhio but since he (deceased) was adamant hence would be finished. Saying so the appellant slapped him and also fired at him with his pistol.. Muhammad Saleh thereafter writhed. In pain for a while and then breathed his last. Complainant Allah Bux leaving behind other witnesses to look -after the dead body proceeded to Police Station Shadadpur where he reached the same day at 7-00 p. m. And lodged the report. S. H. O. Abdul Khaliq after register--ing the F. I. R. Came to the scene of offence accompanied by the comp-- lainant. He saw the dead body of Muhammad Saleh and recovered blood which was put into a sealed parcel by him. He also recovered one crime empty lying near the pool of blood which he put into sealed parcel. He secured a heap of roots or Jawar .Crops which was being collected by the deceased at the time of incident. S. H. O. Then prepared Mas4irnama of wardat and also inquest report. He sent the dead body to the hospital for post-mortem examination and recorded the statements of the' witnesses. Thereafter, at about 11.00 p. m. He went to the house of appellant, who came out on the call and surrendered. Clothes of the appellant were found to be stained with blood which were recovered and put into a sealed parcel. Appellant led to the recovery. Of pistol front underneath of heap of dung by the side of hedge of his house. Alongwith pistol there were five live cartridges which were also secured. Pistol was loaded and had smell of gun powder and in working condition. S. H. O. Also sealed the weapon of crime. Appellant was then brought in custody to the police station and a report under section 13-D of the Arms Ordinance was lodged against him as he had no licence for the pistol which was produced by him. On the following day the appellant was produced before the Mukhtiarkar & F. C. M. Shahdadpur, who recorded his judicial confession and thereafter appellant was remanded to judicial custody. After completing the other steps of the investigation like sending the parcels to the laboratories he presented challan in the Court. 3. Prosecution has examined 8 witnesses in support of its case. (P. W. 1) is Dr. Zulfiqar Ali Shah who conducted post-mortem examina--tion on the dead body and produced report Exh. 7. (P. W. 2) Mr. Muhammad Saliq is Mukhtiarkar & F. C. M., who has- recorded the judicial confession of the appellant and produced the same as Exh. 9. (P. W. 3) Ghulam Muhammad is a tapedar who has prepared and produced sketch of the scene of offence Exh. 11. Prosecution has examined two eye- witnesses (P. W. 4) Allah Bux complainant who produced F. I. R. Exh. 14 and (P. W. 5), Bachal. Another eye-witness, namely, Hyder Wassan could not be examined for the reason that he had fled before his statement could be recorded in the Court (P. W. 6). Doso Jokhio has been examined by the prosecution on the point of motive (P. W. 7), Haji Ghulam Muhammad is a Mashir and has attested and produced mashirnama of vardal Exh. 19, inquest report Exh. 20 mashirnama of arrest of appellant and recovery of his blood-stained clothes Exh. 21 and mahirnama of recovery of pistol Exh. 22. . (P. W. 8) is S. H O. Abdul Khaliq who. Has investigated the case as stated above and has produced in the Court during his evidence the report of Chemical Examiner Exh. 24 and report of Ballistic Expert Exh. 25 which are both positive. 4. Before the trial Court the appellant in his statement under section 342, Cr. P. C. Has denied the prosecution allegations and retracted from his judicial confession on the ground that he had not made the same and only his signature was obtained thereupon. It is further stated that he was
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mercilessly beaten by the police before his signature was obtained on the judicial confession. He has also denied recovery of blood-stained clothes from his person and also his pistol. Appellant further stated that murder was committed by. Doso Jokhio and he has been falsely implicated on account of enmity with Mir Muhammad Wasan and his Haris, whose houses were searched by Police, in which appellant rendered assistance. It is further stated that Mir Muhammad Wassan had gone into hiding during the regime of defunct Peoples Party and when Mir Muhammad Wassan came back the appellant and his relatives demolished their houses and migrated away. Appellant further stated that he owned a gun with licence and he produced the, licence as Exh. 28. It is further stated by him that pistol has been foisted on him to implicate him in the case and the witnesses were set up. Police had beaten him mercilessly and detained his brothers. His brother made an application before the Civil Judge & F. C M. And requested for medical examination of the appellant. The counsel for the appellant also made an application to the Court for Medical examination of the 1983 appellant. It appears from the statement of the appellant that he means to say that police had beaten him up for judicial confession, which he disowns. Appellant has examined two witnesses in his defence. (D. W. 1) Jamaluddin is a clerk in District Court Sangbar who has produced apple--cation made by Nabi Bux before the Civil Judge & F. C. M., Shahdadpur on 21st October, 1975 as Exh. 31 and an affidavit in support of the apple--cation as Exh. 32. He has also produced application made by appellant before the same Court on 24th October, 1975 as Exb. 33. He has also produced an application made by Mr. Abdul Salam Ansari, Advocate for the appellant on 25th October, 1975 as Exh. 34. He has produced letter issued by the Civil Judge to the Jailor to produce appellant before Medical Officer, Shahdadpur, for examination and certificate as Exh. 35. He has also produced copy of such letter to Medical Officer as Exh. 36. (D. W. 2). Muhammad Sawan is a clerk in Taluka Hospital, Shahdadpur. He brought a register of outdoor patients relating to the year 1975. He has pointed out four entries in the register indicating that karim Bux s/o Khair Muhammad was examined and treated. These entries relate to 14th October, 1975, 25th October, 1975, 27th October, 1975 and 28th October, 1975. Copies of these entries have been produced as Exhs. 39 to 42. 5. Before the trial Court counsel for the appellant made an apple--cation with prayer that certified copies of depositions of two witnesses namely, Haji Ghulam Muhammad and S. H. O. Abdul Khaliq recorded in the connected case under the Arms Ordinance be placed on the record of Session. This application was granted and in the result the depositions of the two witnesses mentioned above were placed on the record as Exhs. 44 and 45, respectively. 6. To prove its case the prosecution has produced different pieces of evidence to connect the appellant with the commission of crime alleged against him. There is on the record ocular testimony of two witnesses, dying declaration of the deceased, circumstantial evidence of recovery of crime weapon and blood-stained clothes of the appellant with positive reports from Ballistic Expert and Chemical Analyser, Judicial confession of the appellant recorded by a Magistrate on the following day of his arrest and motive. 7. Mr. Murtaza Hussain, counsel for the appellant has assailed before us all these pieces of evidence mentioned above. Ocular evidence is criticized on the ground that the eye-witnesses are not independent and reliable as they are interested witnesses and there is background of enmity. Prosecution has examined only two eye-witnesses, who are P. W. 4 Allah Bux complainant and P. W. 5 Bachal. Complainant Allah Bux is admit--tedly brother of deceased Muhammad Saleh. He is a natural witness for the reason that incident has taken place at a distance of 40 or 50 paces from his otaq. At the time of incident he was sitting in his otaq convers--ing with P. W. 5 Bachal. It is the case of the prosecution that the place of incident was visible from the otaq where both these eye- witnesses were sitting. Complainant has deposed before the trial Court that he and Bachal were sitting in the varanda of otaq which faced south and the scene of offence was in the west of otaq.
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P. W. 5 Bachal has deposed that the varanda was open on the western side and southern side and was closed from eastern side and northern side. In the Mashirnama of scene of offence Exh. 19 on the record, it is stated that otaq of complainant was at a distance of 80 paces from the place of occurrence and further that otaq of the complainant was visible from the place of incident. P. W. 3 Ghulam Muhammad Tapedar has deposed before the trial Court that otaq of the complainant was at a distance of 170 feet from the place of incident as shown by him in sketch of wardat Exh. 11 at point ---P---. He has further stated that otaq consisted of a room and varanda in front of it and the varanda bad a roof. In the circumstances it can be said that the place of incident was visible from the varanda where both the eye-witnesses were sitting at the time of incident and were in the position to see the incident. Evidence of eye-witness Bachal has been criticized on the ground that he is a chance witness and was incidentally present if prosecution version is to be accepted. Eye- witness Bachal is not related to the deceased or the com--plainant and is Mirbahar by caste while complainant is Unar by caste. Bachal had explained his presence in the otaq at the relevant time by deposing that he had come to the complainant to borrow a pair of bul. Locks. He has further stated that he is resident of the same village and his house is about one furlong away from the house of the complainant. In-- between the two houses there were fields. The learned counsel for the appellant had pointed out a discrepancy that eye-witness Bachal has stated the purpose of his visit to the complainant to borrow a pair of bullocks, while on the other hand the complainant has deposed before the trial Court that P. W. Bachal was sitting with him in the otaq at the time of incident and in his cross-examination has stated that Bachal was sitting with him for kachahrt (friendly chat). 1t appears from the record that the complainant in the F. I. R. Has also stated that at the time of incident he was sitting in the otaq alongwith Bachal Mirbahar. This discrepancy in minor in nature and cannot be given such significance to discard or doubt A the ocular account of the incident given by P. W. Bachal, which otherwise appears to be truthful. Kachahri is wide term and shows that both these eye-witnesses were sitting for quite some time exchanging news and views which might have included the request of Bachal of borrowing the bullocks. It was not pointedly put to the complainant that Bachal had come to borrow bullocks and he had denied it, neither Bachal has stated that he had gone to the complainant specifically for the purpose of borrowing bullocks and did not have a chit chat with him. Moreover, the incident took place in the month of October, 1975 and evidence of these two eye-witnesses was recorded in the month of January, 1979 which is after the lapse of three years and some odd months. In the circumstances B we are of the considered view that both these eye-witnesses were present in the varanda of the otaq at a short distance from the scene of offence and have seen the incident. 8. The learned counsel for appellant next submitted that the com--plainant has not mentioned in F. I. R. That crime empty was lying at the spot. The complainant has admitted in his cross- examination before the trial Court that he has not stated so in the F. I. R. Another suggestive question was put by the defence counsel to the complainant in his cross--examination that he had not stated in F. I. R. That appellant had unloaded the pistol, thrown the empty on the scene of offence and reloaded it. The complainant perhaps instead of confusion replied to this question in the affirmative. On the other hand, a perusal of F. I. R. Shows that the complainant had stated that Karim Bux loaded another cartridge in the pistol and told them not to come near. Very cleverly the first discrepancy mentioned above with regard to the empty at the spot was got cleared through I. O. When he was in the, box before the trial Court and the second discrepancy with regard to the reloading of the pistol was inten--tionally not put to him, far the obvious reason that the complainant had in fact really mentioned about the reloading of the pistol by the appellant at the spot and threatened the witnesses not to come near. It is, therefore, clear that the complainant has mentioned in F. I. R. That the appellant after firing a shot at Muhammad Saleh had reloaded the pistol when witnesses approached. In the face of this fact that the pistol was reloaded at the spot it
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is but natural that before reloading the crime empty in the pistol had to be ejected, which must have fallen at the spot. Now, we come to the question why the complainant has not mentioned about the presence of crime empty in the F. I. R. The reply is that he has omitted to mention this fact in the F. I. R. Due to inadvertence. An illiterate person like complainant, whose brother, as young as 14 years of age, C was shot dead before his eyes, is likely to forget minute details when he rushes to the police station without any loss of time to lodge a report. Moreover, P. W. 8, Abdul Khalique S. H. O. Has deposed before the trial Court that he found empty lying near the pool of blood and he also secured heap of roots of Jawar crops lying colleted there. In such circumstances, we are of the view that omission made by the complainant in making mention of the empty lying at the spot in F. I. R. Was purely innocent. Moreover, the other eye-witness P. W. 5 Bachal has also deposed before the trial Court that he did not approach the appellant because appellant had reloaded the pistol having taken cartridge from the pocket and had thrown the empty at the scene of offence. This witness was not confronted with his Police statement on this point in his cross--examination obviously for the reason that he must have said so in that statement. This witness was confronted with his 164, Cr. P. C. Statement wherein he had not stated about the presence of crime empty at the spot specifically but he had stated therein that the appellant Karim Bux had reloaded the pistol with another cartridge and threatened the witnesses not to come near. Perusal of evidence -of both these witnesses induces us to hold that they have seen the incident as there are no material discrepancies in their evidence. We are further fortified in our view by the fact that F. I. R. Was lodged promptly without any delay. The incident took place at 5.00 p. m. When F. I. R. Was registered on the same day D at 7-00 p. m. After two hours when the distance between the scene of offence and police station is 8 miles. It is in the evidence of the eye--witnesses that after the departure of appellant they went near and turned injured Muhammad Saleh, who made a dying declaration as stated above and after a short while he expired. Complainant has deposed before the trial Court that he left other witnesses near the dead body and went to the Police Station Shahdadpur. He covered a distance of one mile on foot and came to bus stand from where he got bus and came to Shabdadpur. This explanation clearly shows that there was no delay in lodging the F. I. R. And. There was no time to manipulate t he story for false implication. We are, therefore, giving full credence to the ocular testimony furnished by the prosecution. We shall take up the allegation of enmity later on when we discuss the defence plea. 9. So far the piece of evidence with regard to dying declaration is concerned, criticism made by the learned counsel for the appellant is that the words uttered by the deceased in his dying declaration are not the same as testified by the two eye-witnesses. We do not find much difference in the gist of what was said by the deceased before his death. Complainant Allah Bux has stated that deceased Muhammad Saleh told them that appellant hats come to him and told him that he had several times forbidden him not to have friendship with Doso Jokhio but since he was not listening to him, he was going to finish him. Then he gave him a slap and ultimately fired at him. On the other hand, P. W. 5 Bachal has stated before the trial Court that deceased Muhammad Saleh said to them that appellant had come to him and told him that 100 times he had told him not to have friendship with Doso Jokhio but since he was not coming round hence he was killing him and he (deceased) again told him that Doso Jokhio was his neighbour and had no bad connections with him. Appellant then fired at him and went away. Of course, there appears to be an addition in the version of P. W. Bachal about the deceased telling the appellant that he had no bad connections with Doso Jokhio. This slight addition is to be seen in the light of fact that the witnesses are illiterate and they were examined in the Court after lapse of more than three years. Even otherwise the gist is the same. The learned counsel for the appellant has cited before us the case of Tawaib Khan and another v. State (PLD 1979SC 13). This decision is not helpful to the argument raised by the learned counsel for the appellant because it lays down
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the general principle that dying declarations have sanctity under law but no rigid rule can be laid down that person under immediate apprehension of death would utter nothing but truth. It is further held that dying declaration like statement of interested witness requires close scrutiny. In the reported case deceased in his dying declaration had implicated two accused persons and the Supreme Court after deep scrutiny of the evidence on the record came to the conclusion that the case was made out against one accused only and the other was acquitted. In the instant ca a there is no question of false implication as there is only one accused and not more. Moreover, the gist of the dying declaration is that the present appellant had fired at him for the reason which need not be re-stated here. Further, in this case credibility of the dying man is not called in question but discrepancy in the statements of witnesses is pointed out. Apart from this both the witnesses testifying about the declaration are also the eye-witnesses of the incident. They have seen with their own eyes appellant firing at the deceased. The requirement of law is f that evidence with regard to dying declaration must be such that it inspires confidence and it does so in the present case. The learned counsel for the appellant has contended before us that dying declaration could not have been made as the doctor who conducted the post-mortem examination on the dead body has testified before the Court that deceased had died instantaneously. We have carefully checked that evidence of the doctor on this point. The doctor has deposed before the trial Court that the death must have been instantaneous and by that he meant within a very short period and did not mean immediately on receipt of injury. He has also deposed that on receipt of injury the deceased could have been in a position to speak for a few minutes. It was put to the doctor in cross-examination that he had not stated in his post-mortem notes that deceased could speak for a few minutes after receipt of injury and the doctor has explained that he did not have to say so in the post-mortem notes because there was no such column for this purpose. In the circumstances we do not find any reason to doubt evidence of witnesses about dying declaration. We also find that evidence of doctor support the ocular account of the incident in many material particulars. The doctor has stated that deceased must have received injury while he was standing. This supports the statements of the eye-Witnesses that deceased and appellant were talking together when the appellant fired at the deceased. The doctor has also stated that the seat of the injury was chest and there was charring present. This fact supports the eye-witness when they have stated that the appellant fired at the chest of the deceased from a very close range. 10. In the circumstantial evidence prosecution has examined (P. W. 7) Haji Ghulam Muhammad, who is a mashir and had produced mashirnama of wardat Exh. 19, inquest report Exh. 20, mashirnama of arrest of appellant and recovery of the blood-stained clothes Exh. 21 and mashir-- nama of recovery of pistol produced by the appellant Exh. 29. It may be mentioned here that crime empty was recovered from the spot which was put into a sealed parcel and subsequently after the arrest of the appellant, he led to the recovery of pistol from under the heap of dungs by the side of the hedge of his house which was put into a sealed parcel. Reports of Chemical Examiner and Ballistic Expert are to the effect that clothes of the appellant were stained with blood and the crime empty was fired from the crime weapon. We do not find any infirmity in the evidence of this mashir and hold that he is perfectly reliable. This mashir has been subjected to searching cross- examination but there is nothing in it to doubt his veracity. This witness is a Zamindar owning 103 acres of land in Taluka Sinjhoro and is a respectable person. It was suggested to him that he was tried for murder of Ahmed Khaskhaili alongwiih some other persons which he bad denied. It was further suggested to him that he was arrested under section 110, Cr. P. C. Which he has also denied. He has admitted having been detained under D. P. R. But further stated that he was not arrested alongwith Mir Muhammad Wassan. It was contended by the learned counsel for the appellant that clothes of the appellant could not get stained with blood as according to prosecution deceased
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was fired at with the pistol, which must have been done from some distance. The record shows that both…
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