Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: GULAN AND 2 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Ghulam Muhammad Kourejo Title: GULAN AND 2 Others vs THE STATE Case No.: Criminal Appeal No. 55 and Confirmation Case No. 23 of 1981 Date of Judgment:1982-02-16 Reported As: PLD 1982 Karachi 983 Result: Appeal allowed
JUDGMENT
JUDGMENT AJMAL MIAN, J.-(a) This is an appeal filed by 3 appellants, namely, Gulan @ Ghulam Hayder son of Duro @ Darya Khan Rind, Chutto, son of Hayat Rind and Jumo son of Chutto, Rind against the judgment dated 25-3-1981 passed by the III Additional Sessions Judge, Hyderabad, convicting appellant Gulan under section 302, P. P. C. And awarding him sentence of death subject to the confirmation by the High Court, whereas the other 2 appellants have been convicted under section 302/114, P. P. C. And have been sentenced to 10 years R. 1. Each. The learned Additional Sessions Judge has also ordered appellant Gulan to pay Rs. 5,000 to the father of the deceased as compensation or in lieu to undergo R. I. Of one year. The brief facts leading to the passing of the above judgment are the P. W. 2 Baqar lodged F. I. R. On 27-4-1976 at 1700 p. m. At the Police Station, Tando Muhammad Khan, District Hyderabad, which was situated about 18-19 miles away from the house of the complainant, which was the place of the incident, near Hyder Shah Moya Taluka Muhammad Khan. In the above complaint, it was alleged that the complainant got about 10 acres of his own land and was also Hari of Siddik Punjabi. It was further alleged that about 2 years back the complainant bad given his daughter Mst. Rani in marriage to Gulan Ghutam Hyder, son of Duro Rind and that his son Waryam was betrothed with girl Jiary daughter of Duro (sister of Gulan). It was also alleged that Gulan the complainant's son-in-law was residing with his wife in a separate house in the same enclosure. It was further alleged that about 4 or 5 days before the date of the incident Gulan went to his father in Deh Sandki along with Aloo Gargez who was residing with him in connection with cattle. It was further stated that Gulan returned yesterday in the evening and asked the complainant's daughter to accompany him so that he should leave her to his father. Thereupon, the complainant and his
---
## Page 2
Maughter told Gulan that it was settled by Nekmard that till their girl Mst. Jiary was not married with Waryam, he would stay with them. It was further alleged that upon hearing this Gullan slept with his wife in the house. It was further stated that in the morning the complainant went away along with his plough and returned at 12 and again be went with his wife Mst. Awri to Siddik Punjabi for distribution of grains. 1t was also stated that at about 3 n. m. He and his wife were working for the aforesaid purpose on the land of Siddik Punjabi, who- was also with them, where his daughter Asst. Allah Bacbai came and stated that Gulan asked Mst. Rani to accompany with him and to reside with him uncle Sajho with whom his brother also lived. There--upon, Mst. Rani replied that she would not go till her father would not allow. It was further alleged that after hearing this Gulan got angry and abused and brought hatchet from his house and gave blows with its sharp side on the left side of the chest of Mst. Rani, who was sitting under the shed of the house: It was also stated in the F. I. R. That after sustaining injuries Mst. Rani fell down and that accused Gulan inflicted hatchet injuries on her head. It was further alleged that Mst. Nazi and Mst. Saleemat raised cries. There-- upon, Gulan asked them to keep quite, otherwise be would kill them. It was further stated that after giving injuries to Mst. Rani, Gulan left blood-stained hatchet and ran away out of the hedge towards east and that MO. Rani succumbed to the injuries. It was also stated that on cries P. W. Pir Bux also came, who also saw accused running away. It was further stated that on hearing the above facts from Mst. Allah Bachai, the complainant and his wife came back to their house and saw that Mst. Rani bad hatchet injuries and found that the blood was oozing. They also found that she was dead and blood-stained hatchet was lying outside the hedge. It was also stated that thereafter, the complainant narrated the facts to Muhammad Siddik Zamindar, who advised him to go and report to the Police. (b) It seems that after lodging of the above F. I. R. The complainant, namely, Baqar son of Ayal lodged a direct complaint, namely, Cr. Complaint No. 2158/1976 against the present 3 appellants under section 302/114/34, P. P. C. On or about 20-5-1.976 alleging therein, that the police had deliberately omitted appellants Chutto and Jumo from the Challan and released them. It further seems that on the basis of the above complaint, the learned Additional Sessions Judge, Hyderabad, passed the following order :- "Heard the accused for the complainant. Perused the statements of P. W. Recorded P. E. Police paper who perused case appear to full against all the accused under section 302-114, P. P. C. Accused Gullan has already have challaned by police. While Chutto and Jumo have not been challaned by police. In these circumstances I issue D. W. In the sum of Rs. 5,000 and P. R. In like amount against Chutto and Jumo. Accused "Gulan is already said to have in custody. Issue P. O. For him. Hearing 12-8-1976." (Sd.) III. Addl. S. J., Hyd. 26-7-1976." It also seems that in respect of the F. I. R. Sessions Case No. 2158/76 was registered, whereas in respect of private complaints Sessions Case No. 2166/76 was registered. It further seems that the learned Additional Sessions Judge proceeded with the private complaint which was conducted, by the Advocate for the complainant and not by an A. P. P. And kept the other session case pending. Upon the conclusion of the above private complaint, the learned Additional Sessions Judge, passed the judgment under appeal. It may also be stated that upon passing of the judgment in question, the learned Additional Sessions Judge passed the following order on 28-3-1981 "Accused present on bail. Connected direct case is decided of the same accused and ended in death sentence, hence this case is also disposed off." From the above order appearing in the daily diary of Sessions Case No. 2166/76, it is evident that the learned Additional Sessions Judge did not proceed with the Sessions Case arising out of the F. I. R. Referred to hereinabove.
---
## Page 3
(2) (a) The complainant has relied upon three alleged eye-witnesses, namely. P. W. 3 Msr. Allah Bachai sister of the deceased and one of the daughters of the complainant P. W. 4 Mst. Saleemat (Phuppi of the deceased) and P. W. 5, Mst. Nazi, mother-in-law of the complainant Baqar. The corroboration of the testimony of above 3 alleged eye-witnesses was sought through the evidence of P. W. 2 Baqar, the complainant, P. W. 7 Pir Bux son-in-law of the complainant and husband of P. W. 3 Mst. Allah Bachai and P. W. 6 Muhammad Siddik zamindar of the complainant. It may be noticed that neither the mashirnama of vardat nor any mashirnama of recovery nor any Chemical Analyser report was produced at the trial of the above private complaint. Even the Investigating Officer has not been examined in the present case. (b) In support of the above appeal Mr. Muhammad Hayat Junejo (who was assisted by Mr. Kamal Azfar Advocate) has made following sub--missions :- (i) That from the evidence on record, it is evident that appellants Chutto and Jumo have been falsely implicated and that the alleged eye--witnesses have falsely deposed that the above two appellants had participated in the commission of the offence and hence their testimony requires independent corroboration even for sustaining conviction against appellant Gulan. (ii) That the testimony of P. Ws. Baqar, Pir Bux and Muhammad Siddik does not furnish the requisite independent corroboration. 3. Before taking up the above contentions of the learned counsel for the appellant, it may be pertinent to refer to the testimony of the alleged eye--witnesses and of the other 3 P. Ws., whose testimony is sought to be used as a piece of corroborative evidence. (i) P. W. 2 Baqar the complainant has reiterated the facts stated by him in the F. I. R. He has produced .F. I. R. As Exh. 9 and has stated that it was the same, correct and bore his left thumb impression. He has also stated that the police did not read over the contents of the F. I. R. To him at that time nor he was given a copy of the F. I. R. He has further stated that the contents of the F. I. R. Read over to him were correct except the fact that the police had written only one culprit i. e. Gulan, whereas the culprits were three, namely, Gulan, Chutto and Jumo. He has further deposed that the police had recovered hatchet and that Mst. Allah Bachai, Nazi and Saleemat gave the same facts and that Pir Bux told him that he had seen accused Gulan, Chutto and Jumo going away from there. He goes on to state that the police had arrested all the 3 accused and got them in lock up for 3 days and the police sent for P. Ws., but did not examine and sent them back on the pretext that they would be examined on the next day. He has further stated that on the third day, he saw that the police had left two accused and kept only one accused in the custody. Thereupon, he complained to the higher authority, in respect of which he has produced the alleged photostat copies of the receipts of telegrams Exhs. 10 and 11 acknowledgment receipts Exhs. 12, 13, 14, 15 and 16, a photostat copy of the application addressed to the Chief Minister Exh. 17 and a photostat copy of the receipt in respect thereof Exh. 18. In cross-examination, he has stated that be lodged the direct complaint about one week after the incident, which he got drafted by an advocate at Hyderabad and so also he got the telegrams drafted by the advocate. He has further stated that Jumo was maternal uncle of accused Gulan, whereas Chutto was father of Jumo and that Chutto and Jumo resided 2i miles away from Shah Karim Bulri, which was 12 miles away from their village. He has denied that he did not state the names of accused Chutto and Jumo before the police at the time of lodging of the F. I. R. Or that he was given the copy of the F. I. R. He has further denied that he had nod stated that accused Chutto instigated Gulan to kill Rani. He has further stated that it was not correct that he did not state in the F.I.R. That the ladies were tailoring rillies. He has further stated that the house of Gulan father might be 8 or 10 miles away from his house and that Gulan's marriage with Rani took place 2 years prior to the incident and that Gulan resided with his father for 5 or 6 months. He has further stated that the Rani used to reside with him but accused Gulan used to visit her often and used to reside for a week or so. He has also stated that whatever he had
---
## Page 4
stated in his direct complaint, he has stated in his examination-in-chief before the Sessions Court. He has further stated that he bad seen all the 3 accused at the police lock up in Tando Muhammad Khan Police Station on the next day of the incident in the morning at 9 or 10 a. m. He goes on to state that he was sitting inside house of P. W. Siddik when Allah Bachai came to inform him and that Siddik did not accompany him to the vardat, but he went back to Siddik after visiting vardat and told him the above facts. Thereupon, he advised him to lodged the F. I. R. He has denied that she had stated in the F. I. R. That he was sitting in the field or that in his direct complaint" he has not stated the names of P. Ws. Specifically, who narrated the incident to him. He has also denied that Mst. Allah Bachai was of bad character and that in their absence some body else murdered Rani. (ii) P. W. 3 Mst. Allah Bachai has deposed that at about 41 years ago at about 3 p. m. She, Mst. Saleemat and Mst. Rani deceased were sitting in house of Baqar and sewing a "Rilli" where Gulan was already sitting, who was married to Mst. Ram, daughter of Baqar. She has further deposed that Chutto and Jumo came there both were armed with hatchets and so also Ghulam was armed with hatchet. She has further deposed that Ghulam asked Mst. Rani to accompany him to his house, whereupon she replied that she would accompany him as soon as her father would come back from grains Batai at Siddik's field as her father and mother had gone together there, whereupon Chutto and Jumo both instigated Gulo to attack Mst. Rani. Thereupon, Gulan gave hatchet blows to Mst. Rani with sharp side on the neck, breast and head, as a result of it Rani fell down and blood profusely and expired. She has also deposed that on their cries Pir Bux. Came, who also saw the accused, who then ran away towards eastern side with their hatchets. After that she went to inform Baqar. She has further stated that the police people came in the evening and left before the sunset after holding inquiry. She goes on to state and that she had stated to the police that she had seen the incident and had given names of the accused Gulan, Chutto and Jumo and so also Mst. Nazi and Saleemat gave the statements before the police, in which they also implicated all the 3 accused. She has also stated that they had started sewing Rilli on the very day since morning and they had taken lunch. She has further stated that Gulan had come one day prior to the incident after residing 4-5 days with his relatives and that Rani had resided with Gulan for 7 or 8 months. She has also stated that Rani was standing there when they were sewing Rilli. She has denied of having stated before the Magistrate that Rani was sewing Rilli along with them. She bas also produced her 164 statement as Exh. 23-A and stated it was same, correct and bore her right thumb impression. She goes on to state that she had stated before the Magistrate that accused Gulan had threatened to kill them if they would raise cries and that she had also stated that Gulan had ran away after leaving hatchet near hedge on eastern side. She has denied of having stated in her 164 statement that Pir Bux came later on after the accused had run away. She goes on to state that after the incident neighbour came and there were about 100 persons who came. (iii) P. W. 4 Mst. Saleemat has reiterated the facts, more or less same what have been stated by Mst. Allah Bachai she has deposed that Gulan was residing and sitting with them and that accused Chutto and Jumo came there armed with hatchets and Gulan was also armed with hatchet. In cross--examination she has stated that in her 164 statement she had stated to the police that she had witnessed the incident and that she had implicated the accused. She has denied that her eye sight was weak. She has also deposed that she did not state in 164, Cr. P. C. Statement that Rani was also sewing Rilli with them. She has produced her 164 statement as Exh. 24-A. She has also stated that Gulan had come 2 or 3 days prior to the day of the incident and that he used to reside with his wife and they were happy, she denied that she was deposing falsely. (iv) P. W. 5 Mst. Nazi has also more or less stated what was stated by the above 2 witnesses. In her cross-examination, she has stated that she slid not tell police at that time that she saw incident as she was in mourning and that police did not inquire from her. She has further stated that P. Ws. Mst.
---
## Page 5
Saleemat and Allah Bachai did not tell police that they saw the incident as they were also busy in mourning. She goes on to state that she was the mother-in-law of the complainant and that her son Misri had 2 wives, who were alive and that he used to reside 1 acre away from Baqar's house. She has further stated that Jumo and Chutto resided at Shah Karim Bulri village about 12 or 13 miles away from them and that Rani was not sewing Rilli which was of red colour. She has further stated that at the time of assault Rani was talking with her husband was not sewing and that Rani was about 2 paces away from her at the time of assault. She goes on to state that she had stated in 164 statement that all the 3 accused had hatchets and that Pir Bux informed them that he also saw the accused running away whom he identified. She has further stated that Pir Bux was son-in-law of Baqar. Her attention was invited to her 174 statement wherein, she stated that Pir Bux came later on after the running away of the accused. (v) P. W. 6 Siddik in examination in chief has deposed that complainant Baqar was his hari and that about 5 years back at 1 or 2 p. m. Baqar came to his land for batai of his field. He has further deposed one girl, namely, Allah Bachai came there crying but he did not know what she told to Baqar as he was inside the hedge, while she called Baqar out. Thereafter Baqar and big wife went away with that girl. - He has also deposed that after an hour Baqar came and told him that Chutto, Gulan and Jumo had murdered his daughter, whereupon he advised him to report the matter to the police. In his cross examination he has stated that Baqar and his wife were sitting in his house and were not doing batai outside in the fields and that the batai was being done inside the house. He has further stated that the police did not examine him at all, and that he went to the vardat later on after arrival of the police. He has also stated that he did know if the police examined any P. W. In his presence. (vi) P. W. 7 Pir Bux has deposed that about 41 years back at about 3 p. m., he was returning from his cabin to his house for taking meals and when he reached about 7 paces away from his house, he heard cries and rushed to his house and saw Mst. Rani lying murdered in the house, in western side of the house. He has further deposed that he also saw accused Gulan running away along with hatchet but he did not see other two accused. He goes on to state that Gulan ran towards eastern side and that out of fear, he did not follow him in his house. Me has also stated that Mst. Nazi, Mst. Saleemat and Mst. Allah Bachai told him that accused Gulan, Chutto and Jumo - murdered Rani. In his cross-examination he has stated that he had gone to the cabin at about 8 a. m., which is situated about one mile away from the vardat, and that he had not taken any article to be carried to home. He has denied that he had stated before the police that he was carrying house hold articles to his house. He goes on to state that he had told to the police that he was going to take meals. He has also stated that he did not state to the police that women told him that Chutto and Jumo had instigated Gulan to murder and that his statement was recorded after 8 or 9 days of the incident under section 164 before a Magistrate. He has also stated that the police had also examined him and that only Punjabi came later on but no one else came as there was a house. (vii) The only evidence, which is left to be dealt with is of P. W. 8 Dr. Allah Bux Alamni who has deposed that on 28-4-1976 he was working as the Medical Officer, Tando Muhammad Khan, when the police Constable, Ali Shah No. 1584 brought the dead body of deceased Rani daughter of Baqar Rind resident of village Baqar Rind, taluka Tando Muhammad Khan district Hyderabad and that he started post-mortem at 9 a. m. And finished at 10-30 a. m. He goes on to state that on examination, he found the following external injuries on the body of the deceased; "(1) Incised wound 6' x 4' x 3' on the left side of chest below the left clavicle extending 2' below the shoulder joint to lateral border of the sternum middle both the mammory glands. (2) Incised wound 6' x -- ' x 3' extending from the left ear to the mid of the top of skull. (3) Incised wound 6' x 4' x --extending from the medial of the right sternomastoid muscle to the lobe of the left ear.
---
## Page 6
(4) Incised wound 2' x -- " x bone deep on the chin below the lower lip of the mouth." He has further deposed that on internal examination, he found the follow--ing injuries "(1) Scalp cut bones cut and lacerated, brain matter cut lacerate congested membrane cut lacerated congested. Base of the skull fractured. Service vertebra cut and . . . . . Fractured. Spinal cord severed at corresponding side of the above injury. Muscle of neck cut morgions swollen congested vessel cut trachea cut upon the whole thickness of the neck in mid line, Walls ribs cartilages on the left side correspond--ing to the injury No. 1. Muscles facia cut ribs cut, Lungs seen through the wound. Pleura cut larynx cut. Abdomen.-Walls-NAD Peritonum-NAD, Cavity-NAD. Moth-Buccul cavity-Teeth toung Phorynax- blood stained." He opined that from the above external and internal injuries on the body of the deceased, he was of the view that the death was due to shock and haemorr--hage caused by the above mentioned injuries and the time between death and post mortem was about 21 hours and between the injuries and death instan--taneous. In his cross-examination, he has stated that the deceased might have taken meals 3 to 6 hours before the death and that rigor mortis comes after 24 hours after the death and that since there was rigor mortis present on the body of he deceased, he was of the view that the death was caused within 21 hours. (4) (a) Reverting to the above contentions of Mr. Muhammad Hayat Junejo referred to hereinabove in para. (2) (b), it may be again pointed out that P. W. 2 Baqar has proved the F. 1. R. And has also stated that the contents of the same were correct except the names of the two accused were omitted. It may again be noticed that the complainant has not examined the police-officer who recorded the F. I. R. Or the Investigating Officer who has carried out the investigation. Nor the certified copies of the remand orders referred to in the private complaint have been produced. The question which requires consideration is as to whether from the evidence of the above witnesses, it can be concluded beyond reasonable doubt that appellant No. I has caused the death at the instigation of appellants Nos. 2 and 3. It is an admitted position that in the F. 1. R., the name of appellant Gulan alone was mentioned and there was no reference to the two accused. The complainant in order to prove that the police had deliberately omitted the names of 2 appellants while submitting challan has produced certain documents referred to here in above. It may be pertinent to refer to exhibit 17, which is an alleged copy of an application addressed to the Chief Minister at Karachi, copy of which was 'sent to Minister of law and D.1. -G., which reads as follows :- To. The Chief Minister Copy :The Minister for lawKarachi D. I. G. Police. Sessions Judge, Hyderabad. Copy : D. C., Hyderabad. Ghulam Hyder Rind killed his wife Mst. Rani under the instigation of Chutto son of Hayat and Jumo son of Chutto Rind on 28-4-1976 in Deh Moya Taluka Tando Muhammad Khan. Police Tando Muhammad Khan under the influence excluded instigators. Pray Justice, Special Police entrusted with investigation. Baqar son of Ali Care of Shoukhat Ali Advocate Gari Kbata Hyderabad. 3-5-1976." It may be noticed that the above application was made on or about 3-5-1976 as indicated in the application. It may also be noticed that in this application it was not stated that appellants Chutto and Jumo also came to the complainant's house for instigating Ghulam Hyder to kill his wife, what
---
## Page 7
was stated was that Ghulam Hyder killed Mst. Rani under instigation of Chutto and Jumo. This alleged application is falsified by the contents of the private complaint, which is Exh. 22. It may be advantageous to refer to para. 9 and a portion of para. IO of the above complaint, which read as follows ; "Para. 9.-That on 28-4-1976 all the above named the accused were arrested by the police and on "29-4-1976 all the accused were produced before the learned Mukhtiarkar Tando Muhammad. Khan. Police got remand of these accused up to 12-5-1976 in judicial custody. Thereafter second remand of all the accused persons was taken from Head Munshi taluka Tando Muhammad Khan and remand of judicial custody of accused Chutto and Jumo was taken from 12-5-1976 till 15-5- 1976 under sections 302/114/34, P. P. C. Whereas remand to judicial custody of accused GhulamHyder was taken separately from 12-5-1976 till 13-5-1976 from Head Munshi Tando Muhammad Khan under section 302, P. P. C. Only, Statements of P. Ws. Pir Bux Mst. Nazi, Mst. Allah Bachai and Mst. Saleemat under section 164, Cr. P. C. Was recorded on 5-5-1976 before the learned Civil Judge and F. C. M. Tando Muhammad Khan. Para. 10.-That final challan was submitted by police on 14-5-1976 before Civil Judge & F. C. M. Tando Muhammad Khan and direction was given to appear before the Sessions Court Hyderabad on 28- 5-1976. At the time of final challan police produce only accused Ghulam Hyder and the remaining 2 accused were not so produced and thereafter the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.