Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MOHARRAM VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha Title: MOHARRAM vs THE STATE Case No.: Criminal Appeal No. J-177 (sic) of 1970 Date of Judgment:1972-03-02 Reported As: PLD 1972 Karachi 635 Result: Appeal dismissed
JUDGMENT
JUDGMENT The appellant Moharram was tried by the learned Sessions Judge, Khairpur for the murder of deceased Noor Mohammad son of Mohammad Ishaq about 8 or 9 days prior to 25th of February 1969, at about midnight time and was convicted under section 304, Part I, P. P. C. He was sentenced to five years' R. I. Under this section. He has now appealed from jail against his conviction and sentence. 2. The facts of the prosecution case as gleaned from the material P. Ws. Briefly are these. Deceased Noor Mohammed was the father of Mohammad Saleh (P. W. 5). Appellant Moharram is son of different Mohammad Saleh, who is (P. W. 3) and Mst. Janul (P. W. 6) is the mother of the appellant. The appellant resided in his house in their village together with his father and mother. The village of the appellant was about 4 or 5 miles away from the village of deceased Noor Mohammad. 3. It is the prosecution case that the families of the appellant and the deceased were known to each other and were on visiting terms. About 9 days prior to 25th February 1969, it is alleged by P. W. Mohammad Saleh son of the deceased that the appellant along with one Shafu and Sadiq had come to their house and they told his father, i,e. The deceased, that Khaliqdino had a bullock for sale. The deceased wanted to purchase the bullock and took Rs. 500 cash from his another son Mohammed Ishaque and accompanied the appellant and his said two companions for the purchase of the bullocks at about 2 p. m. Thereafter, the deceased did spot return to his house for next 3 days, therefore, his son P. W. Mohammad Saleh went towards the village of the appellant to look for his father. On the way he met Budho Mirbahar near Phul village and he talked with him. He then came to the appellant in the latter's village and enquired about his father, the deceased. The appellant told him that deceased Nooro did not approve of the bullock of Khaliqdino he, therefore,
---
## Page 2
went back the following morning and he had stayed with them in the right. Thereafter. P. W. Mohammad Saleh kept searching for his father for another 4 days more. The prosecution case further is that Mohammad Sadiq (P. W. 4) knew the appellant and his father as they belonged to his community and he was their Nekmard. About 13 months before this witness gave evidence at the trial P. W. Mohammad Saleh, father of the appellant, came to him in the morning at his otak and informed him that a dead body was lying under water in the canal by the side of his house. P. W. Mohammed Sadiq then made enquiries from P. W. Mohammad Saleh about this body when P. W. Mohammad Saleh left to bring his son. The latter returned after half an hour with his son, the appellant Moharram. P. W. Mohammad Sadiq asked Moharram as to how the incident had taken place? Appellant Moharram then is said to have made a clean breast of the whole affair and told P. W. Mohammed Sadiq that he had committed the murder of Noor Mohammed. He also said that he woke up from his sleep at his house during that night to feed the cattle. He found two persons sleeping together on a cot in the cattle shed. They were his mother Janul and deceased Nooro. Tin seeing them in that position he was overcome by the desire to kill them by Ghairat and he then went back to bring his hatchet to kill them. By the time he returned with the hatchet his mother had left the cot and gone away. He then took deceased Nooral outside to the canal bank on the pretext of assisting him to carry a log of wood. As the deceased bent down to pick up the log and he gave him a hatchet blow on account of which the deceased fell down. He again gave a blow and threw the dead body of the deceased in the canal. After this extra-judicial confession was made by the appellant to P. W. Mohammed Sadiq, the latter directed the father of the appellant to inform the police about this murder. P. W. Mohammad Sadiq also said that when the appellant was brought to him by his father the appellant also had his hatchet with him. It appears from the evidence then that the appellant along with his father P. W. Mohammad Saleh went to Out-post Baharo which was within the beat and jurisdiction of Police Station Gambat. The out-post was about a mile away from the place of occurrence. At the out-post the appellant and his father reached on 25-2-1969 at 11 a. m. But before that mashir Ali Raza Shah (P. W. 5) and one Jaro Khan were already sitting with Head Constable Mohammed Hussain (P. W. 8) who was incharge of the out-post. The appellant produced his blood-stained hatchet in presence of these two persons out of whom P. W. Ali Raza Shah has acted as a mashir before the Head Constable who took the hatchet into possession, the clothes consisting of shirts and loin-cloth on the person of the appellant were also found to be stained with blood and so they were also secured by the Head Constable. The blood--stained articles were made into a sealed parcel in different bundles. Thereafter, the Head Constable recorded the statement of the appellant Moharram and Incorporated this statement in his own report acting as the complainant on behalf of the State against the appellant Moharram for the murder of deceased boor Mohammed. He recorded the statement of the appellant which, I might say so, is a confessional statement by him to the police wherein he admits the murder of the deceased Noor Mohammed and gives the same story as he had disclosed to P. W. Mohammed Sadiq as already mentioned. The Head Constable P. W. Mohammad Hussain took down his complaint on a blank piece of paper and forwarded it for registration at Gambat Police Station. He produced this report of his in original as Exh. 26 which has been admitted by the trial Court subject to the portion dealing with the confession of the appellant made to the police officer being excluded as inadmissible and rightly so. The Head Constable then prepared a mashir--nama of securing of the blood-stained hatchets and the clothes from the appellant which is Exh. 15 in presence of the mashirs P. W. Ali Raza Shah and another. He then put the appellant under arrest. On the interrogation of the appellant by the said Head Constable, the appellant led the Head Const. Able and the mashirs P. W. Ali Raze Shah and Jaro to Faizwah canal by the side of the house of the appellant at a distance of about one mile away from Baharo Out-post. The appellant then pointed out the bridge with two stones lying over the body. At that time the water level in the canal was
---
## Page 3
waist high. The regulator at the mouth had been closed already as the discharge of water in this and other canals was allowed by fixed rotation. The dead body was not visible from outside at that time as it was immersed into the water. The appellant Moharram then went inside the canal and brought out two stones and the dead body of the deceased. The two stones which appeared to have been tied to the dead body of the deceased were secured by the Head Constable who found. Incised injuries on the dead body. The dead body was in a highly decomposed state but the skin was intact. The dead body was in an identifiable condition according to the Head Constable. The latter prepared a mashirnama of the recovery of the dead body of the deceased and also its inquest report in presence of the same mashirs which mashirnama and the inquest report has been produced as Exhs. 16 and 17 respec--tively. The Head Constable then recorded statements of certain P. Ws. And then the appellant Moharram led him and the mashirs and pointed out the cot lying under the cattle-shed of his house. That place was on the other side of the canal bang and a mashirnama regarding this pointation Exh. 18 was prepared. The Head Constable then sent a letter to the Medical Officer, Gambat for holding post-m3rtem examination on the dead body of the deceased at the scene. Up to that time no one from the family of the deceased had arrived there. On the same day S. H. O. Gambat arrived at the scene at about 11 or 12 noon. The Head Constable then handed over the papers of investigation to him along with the case property. The Head Constable again received the case papers on 12-5-1969 and he recorded statement of certain two witnesses and that of one witness more on 17-5-1969. Further investigation was carried out by the S. H. O. Abdul Hafiz Beg (P. W. 9), who had arrived at the scene of offence after receiving the report through Constable Kouro Khan at 10-15 p.m. Sent by Head Constable Mohammed Hussain which was on a blank paper for registration at the police station. This report was, accord--ingly, transcribed into the book maintained at the police station under section 154, Cr. P. C. And the report has been produced as Exh. 28 on record. The S. H. O. Had then proceeded to the scene of offence where, according to him, he reached at 12 mid--night. Head Constable Mohammed Hussain then handed over the papers of investigation, to him. The dead body of deceased Noor Mohammad was lying at the scene and the appellant Moharram was already in custody. The dead body was kept under police guard. The evidence further shows that in the morning on the day following when the dead body of the deceased was pointed out and produced by the appellant, the son of the deceased i.e. Mohammed Saleh had come to know about the discovery of the dead body of his father on prior evening and, therefore, came to the scene of offence where he reached in the morning and identified the dead body to be that of his deceased father, who was missing for about 9 days since after he had left the house with the appellant Moharram and his two other companions as already mentioned above. It appears that P. W. Mohammad Saleh then went to the Police 'Station of Larkana where he lodged his own First Information Report for the murder of his deceased father and implicated three persons as accused, one of whom was the appellant and the other two were Shafu and Sadiq. In consequence of this First Report lodged by the son of the deceased. Larkana Police on 26-2-1969 arrived at the scene of offence at night at 3 a. m. When A. S. I. Qurban Ali Shah of Larkana Police Station produced a station diary report of Mohammed Saleh son of the deceased before them which has been produced on record as Exh. 24. P. W. Mohammed Saleh was not with the A. S. I., Larkana at that time. However, some policemen were in the company of the A. S. I. In the morning the S. H. O., Gambat verified the scene of offence and the statements of witnesses already recorded by Head Constable P. W. Mohammed Hussain. The S. H. O. Also recorded the, statements of certain other material P. Ws. The Medical Officer had arrived at the scene of offence to perform post-mortem examination, which he accordingly did. By that time as it is shown above, the son of the deceased i.e. P. W. Mohammed Saleh had already identified the dead body to be that of his father. This fact was mentioned in the diary by the Head Constable P. W. Mohammed Hussain and the dead body was thereafter handed over to P. W. Mohammed Saleh,
---
## Page 4
the son of the deceased. The S. H. O. Then brought the appellant Moharram by jeep to Gambat and produced him before the Mukhtiarkar and F. C. M., Gambat, Mr. Mohammed Ashraf (P. W. 1) for recording his confession as the appellant had offered to make a judicial confession before the Mukhtiarkar and F.C.M. P. W. Mohammad Ashraf which was accordingly recorded by the Mukhtiarkar and F. C. M. And has been produced as Exh. 7 on record. This confession had been recorded by the learned Mukhtiarkar after observing all the legal formalities of law required for recording such judicial confessions. According to him he found the confession voluntary because the appellant had stated to him that he had killed the deceased out of Ghairat and, there--fore, was confessing to his crime of his own accord. The learned Mukhtiarkar and F. C. M. Also on the examination of the person of the appellant did not find any mark of injury on it nor the appellant had complained of any maltreatment or beating to him by the police. After the confession of the appellant was recorded he was remanded to judicial custody. On 28-2-1969 the S. H. O. Carried out further investigation and on 1-3-1969 he interrogated Sadiq and Shafu suspects. On 2-3-1969 he recorded statements of some more P. Ws. On 3-3-1969 he got 164, Cr. P. C. Statements of P. Ws. Recorded by the Mukhtiarkar and F. C. M., Gambat. He then carried out further investigation during the course of which on 7-3-1969 he sent parcels containing blood-stained hatchet and blood- stained clothes of the appellant to the Chemical Analyser for examina--tion. He has produced the report of the Chemical Analyser as Exh. 29. This report is in the positive and it shows that the three articles sent to the Chemical Analyser viz. Hatchet with handle, green printed sadri and chaddar were all found by the Chemical Analyser to be stained with human blood. According to him the green printed sadri had only two pin point stains on it. After having completed the investigation the S. H. O. Sent up the interim challan of the appellant on 12-3-1969. He did not send up Sadiq and Shafu and he had sent up only the appellant after obtaining the opinion from the Prosecuting Inspector under the orders of the Superintendent of Police. The final challan was then submitted to the same Court. The appellant was in due course committed to the Court of Session where he took his trial with the result already mentioned above. 4. The appellant when questioned under section 342, Cr. P. C. Denied all the prosecution allegations and professed innocence. He also denied having made the extra-judicial confession to P. W. Mohammed Sadiq. When questioned about having pointed out the dead body of deceased Noor Mohammed lying concealed under water under the weight of two stones first to his father and then to P. W. Mohammed Sadiq and lastly to the police party and also produced the dead body from the water on the bank of the canal he replied that he had taken his bullocks to the canal for watering them when he detected the dead body. He then informed his father, who went and informed Mohammad Sadiq and then the police. As regards the production of his hatchet before the police he denied to have produced it and said that the hatchet in Court did not belong to him. About the securing of blood--stained clothes from his person by the police he also gave an answer in denial and stated that the said clothes did not belong to him. When questioned about the deceased having been last seen in his company he denied that he was with them on the preceding day or night. About the judicial confession he said that he bad made that confession because the police had tortured his women folk for five days. Lastly, he stated that the P. Ws. Deposed against him because they had implicated him at the instance of one Wadero Shamoo, who is his enemy. The appellant did not specify the enmity alleged against him. 5. The appellant did not examine any evidence in defence. 6. There can be no manner of doubt that the deceased was killed by means of hatchet injuries which has been uncontrovertably proved by Dr. Din Mohammed who performed the post--mortem examination on his dead body where it was brought out by the appellant. The doctor in his deposition in the committal Court which was brought on record of the trial Court as Exh. 31 stated
---
## Page 5
that on the external examination of the dead body of the deceased he had found three incised wounds dimension of which he described as under :- "(1) Incised wound 4' x 1--' x 3' deep on the left side of face and left temporal region of head, longitudinal in direction with fracture of left side of mandible and left temporal bone. (2) Incised wound 3' x 1-- x 2' deep on the right side of neck oblique in direction from above downwards and forwards with fracture of right side of mandible. (3) Incised wound 6' x 2' cavity deep on the front of abdomen in the midline from pubic symphysis upwards longitudinal with intestine out from wound." 7. On the internal examination of the dead body doctor found that there was fracture of left temporal bone. Fracture of left side of mandible. Fracture of right side of mandible. Walls of abdomen were ruptured at the site of injury No. 3. Pertitumen were ruptured at the side of injury No. 3. Small intestine was also ruptured at the site of injury No. 3. Stomach was empty and healthy and rest of the organs were normal. According to the doctor the death of the deceased was caused due to shock and haemorrhage as a result of injuries inflicted upon him by some sharp-cutting weapon like hatchet. All the injuries in his opinion were ante-mortem and were individually and collectively sufficient to cause death in the ordinary course of nature. He also stated that the death of the deceased must have been instantaneous. In his cross-examination he said that the body was in such a condition that the near relatives may have been able to recognize it, although it was extensively decomposed. He also said that when he reached the scene of offence the dead body of the deceased was identified by P. W. Mohammed Saleh, son of the deceased. 8. The prosecution relies upon the following pieces of evidence to connect the appellant with the crime of the murder of the deceased :- (i) That the deceased was last taken away by the appellant from his house on the pretext of purchasing a bullock whereafter he was found dead as his body was subsequently discovered. (ii) Extra judicial confession of the appellant to P. W. Mohammed Sadiq. (iii) Judicial confession of the appellant before the Mukhtiar--kar and F. C. M., Gambat on the next day of his arrest. (iv) Securing of blood-stained hatchet from the possession of the appellant and his blood-stained clothes which have been duly found to be stained with blood from human origin by the Chemical Analyser. (v) The appellant having brought out the dead body of the deceased from the canal in which he had gone and taken it out with two stones along with it before the police. 9. P. W. Mohammed Saleh, the son of the deceased in his evidence, inter alia, substantially has stated that about 8 or 9 days before the dead body of the deceased was recovered at the instance of the appellant, the appellant along with Shafu and Sadiq had come to their house in their village and they told to the deceased Noor Mohammad that Khaliqdino had a bullock for sale. The deceased then took Rs. 500 in cash from his another son Mohammed Ishaque and then accompanied these three persons Moharram, Shafu and Sadiq for purchase of bullock at about 2 p.m. Thereafter, until the dead body of the deceased was recovered by the police there was no trace of the deceased although this witness his son had tried to find out his whereabouts but had failed in that attempt. This witness then further goes on to say that about 7 days after his father left in the company of appellant and two others named above, his brother Ishaque and Fakir Mohammed then came to his village and gave him information regarding discovery of the dead body of his father from the canal. He therefore came to the village of the appellant and identified the dead body of his father Nooro lying there. He also said that his brother Ishaque and the police were there. Obviously, he did not see the appellant because he had reached the place from where the dead body was recovered on the next day when it was actually taken out by the appellant before the police and the aforesaid mashirs. Thereafter P. W. Mohammed Saleh had gone to
---
## Page 6
Larkana Police Station and lodged his report Exh. 24 there for the murder of his deceased father and he made the present appellant and two more i.e. Shafu and Sadiq, as suspects for that murder. This F. I. R. Obviously cannot be treated as the First Information Report for the present case as ft was recorded during the course of investigation by the police party when the information of the murder was given by the appellant to the Head Constable P. W. Mohammed Hussain at Baharo Out-post, who had started the investigation. This First Informa--tion report of Larkana Police is therefore hit, by section 162, Cr. P. C. And is not admissible in evidence. However, it can be used as a prior statement of P. W. Mohammed Saleh for the purpose of his corroboration and contradicting him. This witness has already said that their families i.e. That of the appellant and of P. W. Mohammed Saleh, were on visiting terms for the last 5 or 6 years and that is why the deceased had gone to the house of the appellant and had passed the night there as will be discussed later on. This witness P. W. Mohammed Saleh has admitted in his cross-examination that he was accused for murder of Niaz four five years ago and that his father Khan Mohammed was accused for another murder but this admission by him would not make him an unreliable witness although he is related to the deceased being his son and this relationship by its.-If would not have the adverse affect on his credibility. He was involved in the murder case about 4 to 5 years before he gave his evidence, therefore, due to elapse of so much time it cannot be said that his evidence is rendered unworthy of credence. However, it will be seen, as will be discussed later on that he is sufficiently corroborated by other independent evidence on record. Mere relationship of P. W. Mohammed Saleh with the deceased being his son would not by itself affect adversely the value of his evidence because this rule of appreciation of evidence by now has been clearly laid down by our Supreme Court in the case of Suleman Shah v. Ayub and 5 others (PLD 1971 SC 751) in its head-note (b). I might also add that P. W. Mohammed Saleh, the son of the deceased, did not have any enmity with the appellant nor is any alleged by the latter against him. This circumstance, there--fore, makes his evidence quite reliable and it is worthy of belief that the appellant along with two others had come to the house of the deceased and had taken him away who accompanied them for the purpose of purchase of bullock, as said by his son P. W. Mohammed Saleh, whereafter, he was not seen alive. 10. The next piece of evidence is the extra judicial confes--sion of the appellant which he made to P. W. Mohammed Sadiq. This witness, inter alia, substantially stated that he was the Nekmard of the appellant and his father as they belonged to his community. About 13 months before he gave evidence in the trial Court father of the appellant had come to him in the morning at his otak and informed him that a dead body was lying under water in canal by the side of his house. He made enquiries from him about this body when the father of the appellant left to bring his son. P. W. Mohammed Saleh brought his son, the appellant, with him after about half an hour before P. W. Mohammed Sadiq. The latter asked the appellant as to how the incident had taken place ? The appellant then stated' to him as under :- "Moharram then made a clean breast of the whole affair and told me that he had committed this murder of Noor Mohammad. He said that he woke up from sleep at his house during that night to feed the cattle. He found two persons sleeping together on a cot in the cattle-shed. They were his mother Mst. Janul and deceased Nooro. On seeing them in that position he was overcome to kill them by Ghairat and he then went back to bring his hatchet to kill them ; by the time he returned with the hatchet his mother had left the cot and gone away. He then took Nooral outside to the canal bank on the pretext of assisting him to carry a log of wood. As the deceased - bent down to pick up the log he gave him a hatchet blow on account of which the deceased fell down. He again gave the blow and threw his dead body in the canal." 11. This witness also said that when appellant Moharram came to him, he had his hatchet with him, and the appellant had further told him that he had committed the murder 3 or 4 days prior to the
---
## Page 7
discovery of the dead body. The appellant had lastly told him that he had placed stones on the dead body of Noor Mohammed in the canal. This witness P. W. Mohammed Sadiq appears to me to be quite independent and disinterested witness because he is neither related to the deceased nor has any enmity or grudge against the appellant. He being the Nekmard of the appellant and his father it appears quite likely that the appellant had made a clean breast of the whole affair and made the extra-judicial confession reproduced above. I find no reason on record to disbelieve this extra-judicial confession which appears in line with the judicial…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.