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Petitioner: REHMATULLAH and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Wahid Bux Brohi Title: REHMATULLAH and another vs THE STATE Case No.:Criminal Appeals Nos.104, 39, 206 of 2001 and Criminal Jail Appeals Nos.31
JUDGMENT
Reported As: 2005 P C R L J 60 Result: Appeals allowed Judgment JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Criminal Appeals Nos.104, 39 and 206 of 2001 and Criminal Jail Appeals Nos.31 and 205 of 2001 as they arise out of a common judgment. 2. The present appeals have been directed against the judgment, dated 11-4-2002 passed by learned 1st Additional Sessions Judge Jacobabad/S.T.A. Court for Taluka Thul in S.T.A. Case No,70 of 2000 (State v. Altaf Hussain and others). Under the impugned judgment the learned Judge convicted the appellants under section 396, P.P.C. And sentenced each of them to suffer imprisonment for life and fine of Rs,10,000 each in default thereof to suffer R.I. For 6 months. Benefit of section 382-B, Cr.P.C. Was extended to the appellants, whereas, co-accused Ghous Bux was acquitted. 3. The facts giving rise to the present appeals are that on 15-7-1997 the complainant Muhammad Soomar Noonari, his cousin deceased Azizullah, and cousins P.Ws. Muhammad Ismail and Khalid Hussain went to their land to irrigate it with water as they had to take the rotation of water from one Noor Muhammad. The rotation of water started from 6-00 p.m. Their land was situated at about 1 mile away from their village. On 16-7-1997 after midnight the complainant and deceased Azizullah on one motorcycle whereas P.Ws. Khalid Hussain and Muhammad Ismail on another motorcycle left their land and were going towards watercourse. The motorcycle of the deceased was ahead of the other motorcycle. At about 1-00 a.m. They reached at Chitti Wahi, 6 culprits appeared. They were identified on motorcycle lights to be appellants Altaf Hussain and Rahmatullah armed with Klashnikovs, Amanullah, Shabir Ahmed and Abdul Wassul armed with guns and one unidentified person armed with gun. The appellants aimed their weapons at the deceased and gave "Hakals"
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by saying that the motorcycle should be stopped. Thereafter the appellant Altaf Hussain challenged them to get down from their motorcycle and hand it over to them. But the deceased refused to get down from the motorcycle and hand over the same to the appellants. Thereafter, the appellant Altaf Hussain fired a burst from his Kalashnikov which hit deceased Azizullah. Then the deceased grappled with appellant Altaf Hussain whereupon appellant Rahmatullah fired a burst from his Kalashnikov which hit Azizullah. Appellant Altaf Hussain also raised cries that he had sustained a bullet injury on his arm. The complainant, P.Ws. Muhammad Ismail and Khalid Hussain concealed themselves in a Wahi in order to save their lives. Thereafter, the appellants ran away leaving the motorcycle at the place of incident. The complainant and P.Ws. Went to the deceased where they found him lying dead. The complainant leaving the P.Ws. At the place of incident went to the police station and lodged the report at 2-30 a.m. 4. The police and the complainant were going to the place of incident but on the way the appellant Altaf Hussain was arrested. He had injuries on his person; therefore, the Investigation Officer took the appellant to hospital. After medical aid the appellant was left at the police station. Then the Investigating Officer went to the place of incident where he saw the dead body of deceased Abdul Aziz lying there. He prepared the Mashirnama of the place of incident. From there he took bloodstained earth and 10 empties. He prepared the inquest report and recorded the statements of witnesses. The dead body was sent to Medical Officer for post-mortem examination. On 25-7-1997, the appellant Altaf Hussain produced kalashnikov before the police, which was secured and sealed. On 27-7-1997 appellants Rahmatullah and Amanullah were arrested. From the possession of appellant Rahmatullah a kalashnikov was recovered and from the possession of appellant Amanullah a gun was secured. The appellant Ali Wasul was also arrested. The empties and kalashnikovs secured from the possession of appellants Altaf Hussain and Rahmatullah were sent to Ballistic Expert for examination and report, whose report is in positive. After completing the usual investigation the appellants were challaned in the Court, where they were tried and convicted, as mentioned above under the impugned judgment. 5. We have heard the Advocates for the appellants, complainant, A.A.-G. For the State and perused the record of this case very carefully. 6. Mr. Nooruddin Sarki, Advocate for the appellants Rahmatullah and Amanullah has stated that the crime was unwitnessed; that the P.Ws. Were not present at the place and time of the incident and that P.Ws. Are set up witnesses. He has further stated that the crime-empties and weapons secured from the possession of the appellants were sent together to Ballistic Expert for report and that too after one year of the recoveries; that the P.Ws. Are closely related inter se and chance witnesses, therefore, their evidence requires strong and independent corroboration; that the motive of the incident is robbery of motorcycles but no motorcycle was taken away by the culprits; that the ocular testimony is in conflict with medical evidence; that the oral evidence is contradictory to each other and that no overt act has been assigned to the appellant Amanullah. In support of his arguments he has relied upon (1) Karim Bibi v. Station House Officer, P.S. Rajana 1985 PCr.LJ 213, (2) Muhammad Irshad v. State 1999 SCM R 1030, (3) Yameen Kumbhar v. State PLD 1990 Kar. 275, (4) Alahando v. State 1969 SCM R 714, (5) Naubat v. State 1981 PCr.LJ 131 and (6) Muhammad Mushtaq v. State PLD 2001 SC 107. 7. Mr. Khaldoon Ishaq, Advocate for appellant Altaf Hussain has adopted the arguments of Mr. Sarki and further added that the arrest of the appellant as alleged by the prosecution is highly doubtful as the complainant was not present at the time of the arrest of the appellant, though the Investigating Officer deposed such facts but the same have been denied by the complainant; that no independent witness has been examined in this case. 8. Mr. Ubedullah Abro, Advocate for appellant Ali Wasul has also adopted the arguments of Mr. Sarki and further added that the deceased had no gunshot injuries; that no part has been
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assigned to the appellant; that no gun was recovered from the possession of the appellant; that judicial inquiry was conducted in which the appellant was exonerated from the charges that the appellant was not present at the time and place of the incident but had taken the plea of alibi which has been corroborated and supported by his defence witnesses and from the report of Judicial Enquiry. 9. On the other hand, Mr. Wahid Bux Baloch, Advocate for the complainant has stated that the case rests upon the ocular testimony of three witnesses, recoveries and injuries on the person of appellant Altaf Hussain. He has further stated that all the P.Ws. Have fully supported the prosecution case and implicated the appellants with the commission of this crime; that the witnesses are natural who had no enmity with the appellants to falsely implicate them, therefore, mere relation of the witnesses with the deceased is not enough to discard their evidence; that from the cross-examination, the presence of the witnesses at the place of incident has been proved, therefore, the prosecution has proved the ocular testimony in this case. He has further stated that the crime-empties were secured from the place of incident; that the kalashnikovs were secured from the possession of Altaf Hussain and Rahamtullah that the articles were sent to Ballistic Expert for examination and report; that the report is in positive as such the weapons secured from the possession of appellants Altaf Hussain and Rahmatullah have been connected with the crime; that merely delay in sending the property is not enough to discard the Ballistic Expert report. He has further stated that the case of the prosecution is fully supported from the injuries found on the person of the appellant Altaf Hussain against whom all the P.Ws. Have deposed that he had received the said injuries at the place of incident from the firearm shot of his companion. He has admitted that the Medical Officer has given obliging statements to the defence by showing different time of receiving the dead body at the hospital, which can be easily ignored in view of the ocular testimony which should be given preference to the medical evidence on the above point. He has further stated that there is no conflict between the medical and oral evidence. He has supported the impugned judgment. 10. Learned A.A.-G. Has adopted the arguments of the learned Advocate for the complainant and further added that the ingredients of section 396, P.P.C. Are attracted, therefore, it is immaterial as to whether any member of such assembly did not take part in the actual killing but each appellant will be responsible for the equal punishment, therefore, he has stated that all the appellants have been rightly convicted. 11. We have given due consideration to the arguments of the parties counsel, A.A.-G. And perused the evidence very minutely with their assistance. 12. We find that the case rests upon 3 pieces of evidence viz. (i) ocular testimony, (ii) injury on the person of appellant Altaf Hussain and (iii) recoveries. 13. First we will take up the ocular testimony. It consists of 3 P.Ws, viz. Complainant Muhammad Soomar, P.W. Muhammad Ismail and A Khalid Hussain. The complainant is cousin of remaining two P.Ws. And deceased Abdul Aziz. As such all the P.Ws. Are related inter se. Their evidence reveals that on the day and time of the incident the complainant and deceased Abdul Aziz on one motorcycle, whereas P.W. Muhammad Ismail and Khalid Hussain on another motorcycle were going towards Wahi from their land. At about 1-00 a.m. In the night they reached Chitti Wahi where they saw 6 persons, who were identified on the motorcycle lights, came in front of them. The said persons were present appellants and one unidentified person. The appellants Altaf Hussain and Rahmatullah were armed with kalashnikovs whereas the remaining appellants and unidentified person were armed with guns. The appellants aimed their weapons towards the complainant, deceased and ordered them to stop their motorcycle, which they did not. The appellant Altaf Hussain challenged the deceased Azizullah to leave the motorcycle but he resisted on which the appellant Altaf Hussain fired from his kalashnikov which hit the deceased Azizullah who grappled with the
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appellant Altaf Hussain whereupon the appellant Rahmatullah fired from his Kalashnikov which hit the deceased and appellant Altaf Hussain. The complainant and two P.Ws. Concealed themselves in the adjoining Wahi. After the departure of appellants, they went to the deceased where they found him lying dead and both the motorcycles were also lying there. All the P.Ws. Were cross- examined at length by the defence counsel. 14. The main attack on the ocular testimony from the side of the defence is that the P.Ws. Were not present at the time and place of the incident, therefore, their evidence cannot be relied upon and they are set up witnesses. The learned Advocates took us to the relevant portions of the examination-in-chief, cross-examination and medical evidence. First they stated that it is usual/practice that the land is to be irrigated through water by the Haris of the land. However, in this case the Haris were not present but owners of the land were looking after the water which is unusual. We find that the P.Ws. Deposed that the land was cultivated by their Haris and some of them were settled at the land of the deceased while some were residing at a distance of about 2/3 survey numbers away from the land. The complainant deposed that at the time of the turn of water Noor Muhammad his Haris were present and when their turn came, their Haris also appeared. He further deposed that their Haris left the land after leaving water in the land and they (complainant party) started supervising the same by staying in a Landhi/hut. P.W. Muhammad Ismail deposed that they had 5/6 Haris to cultivate the land and they were settled at the land adjoining to their Dera where they were staying. Their turn of water started from 6-00 p.m. He further deposed that at the time of taking of the turn of the water their Haris were not available to irrigate the land. Whereas, P.Ws. Khalid Hussain deposed that at the time of start of turn of the water, their Haris were available but during night time their Haris did not come to supervise the land, therefore, they were staying at their Dera of land from the start of rotation of water and with intervals they were giving rounds. He admitted that the houses of their Haris were situated near their Dera. From their position it is clear that the statements of P.Ws. Are contradictory to each other about the presence of their Haris. It appears that the P.Ws. Were suppressing the true facts so as to make their presence at the land from the start of the rotation of water. Usual practice in Mufsil is that it is one of the duties of the Haris to take the turn of rotation of water to irrigate the land with the said water and supervise the same. It is not the function of the Zamindar to supervise the water, as the Hari is the 50 per cent. Share-holder of the produce. Apart from other duties viz. Ploughing of the land, collecting the produce etc. It is also one of their duties to give water to land. 15. The next point is the taking of the meals by the P.Ws. At their Dera before they left for the place of incident. The complainant deposed that they took the meals in but and stayed there from about 2/3 hours in the said hut. He further deposed that he did not recollect the name of his Hari who brought the meals at the Landhi. From his evidence it appears that their meals were brought by Haris, whereas P.Ws. Muhammad Isma il deposed that as there was no Hari available, therefore, their meals were prepared by a servant at the Dera which were taken by them on the night of the incident but he did not recollect the name of their servant who prepared their meals for them. The P.W. Khalid Hussain deposed that on the night of the incident one Tilu Machhi brought meals from the house which they took at about 8-00 p.m. Whereas the complainant deposed that they took meals at about 10-00 p.m. On this, point also all the P.Ws. Are contradicting each other. 16. As regards, leaving the but and going towards the place of incident, the complainant and P.W. Muhammad Ismail did not give time of leaving the but for going to the place of incident but P.W. Khalid Hussain gave time as about 12 midnight. The place of incident is about 1 or 1-1/2 Kms. Away from their hut. If a person goes on a motorcycle then the said distance can be covered within a few minutes but the P.Ws. Are unanimous that they reached the place of incident at 1-00 a.m. It means that the distance of 1-1/2 Kms. Was covered in one hour time. It is unnatural as it can be covered within few minutes. Thus, the prosecution is silent as to where the P.Ws. Were from 12 midnight to 1-
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00 a.m. All the witnesses are unanimous that they left the bus and directly reached the place of incident on their motorcycles. Thus, the time given by the witnesses is not fitting in the circumstances of the present case. 17. From the evidence we find that in the beginning the complainant disclosed that he was driving the motorcycle on which deceased was sitting on the rear seat. He deposed such facts in the examination-inchief. But he changed his version by disclosing that the deceased Azizullah was driving the motorcycle and he was sitting on its rear seat. He further deposed that at the time of incident of murder, deceased Azizullah was driving the motorcycle whereas he was sitting on its rear seat. His evidence further reveals that when the fire was made upon the deceased, at that time also he was sitting on the motorcycle. It is surprising to note that the deceased and the complainant were sitting on the motorcycle when the firing was made on the deceased but only the deceased has received the injuries but the complainant did not receive any injury or any damage was caused to the motorcycle. This point has further been clarified by P.W. Muhammad Ismail, himself, when he deposed that he was sitting on the rear seat of the motorcycle when the first fire was opened at the deceased Azizullah. He further deposed that after the first fire the motorcycle fell down and then he got down and so also deceased Azizullah. Thereafter the deceased grappled with appellant Altaf Hussain. P.W. Muhammad Ismail gave a different version. In the beginning he deposed that as soon as the appellant Altaf Hussain challenged the deceased Azizullah, the deceased got down from the motorcycle and started grappling with Altaf Hussain and then appellant Rahmatullah fired a burst at the deceased Azizullah. When he realized that it was not fitting with the prosecution story, then he changed his statement by stating that appellant Altaf Hussain fired first at the deceased and then appellant Rahmatullah fired from a distance of about 5 or 6 paces. P.W. Khalid Hussain deposed that as soon as the appellant Altaf Hussain challenged the deceased, the complainant Muhammad Soomar got down from the motorcycle while deceased Azizullah kept sitting on it and then appellant Altaf Hussain fired at the deceased which hit him and then he got down from the motorcycle and then grappled with the appellant. Altaf Hussain and thereafter appellant Rahmatullah fired at the deceased. 18. From the above position, on the main incident, all the 3 witnesses gave different versions, which are not fitting in the circumstances of the case. All the witnesses are unanimous that both the appellants fired from a distance of about 4 or 5 paces. In order to verify the above contention, the medical evidence was examined. According to Dr. Muhammad Rafiq the deceased had 4 following injuries:-- "(1) Two lacerated punctured wounds each size 3/4 c.m. In diameter with everted margins on back of right hypochondrium. This was wound of entrance. (2) One lacerated punctured size 3/4 c.m. In diameter with everted margins on left side of chest below the axilla. It was wound of entrance. (3) One lacerated punctured wound size 3/4 c.m. In diameter and blackening margins on lower 1/3rd of lateral side of left forearm through and through, lacerated punctured wound size 4 c.m. x 3 c.m. With everted margins on posterior side of left forearm with fracture of radius and ulna. (4) Lacerated punctured wound 3/4 c.m. In diamter with everted and blackening margins on medial side of right forearm through and through lacerated punctured wound size 8 c.m. x 7 c.m. With everted margins on upper 1/3rd of posterior side of right forearm below the elbow joint with fracture of radius and ulna." 19. From the above injuries it is clear that injury No,1 was fired from the back of the deceased whereas injuries Nos.2 and 3 were fired from the left side of the deceased and injury No,4 was fired from the right side of the deceased. The seat of the injuries given by the Medical Officer are not corresponding with the seat of injuries given by the witnesses. However, all the witnesses are unanimous that after receipt of first fire-arm shot the deceased left the motorcycle and then
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grappled with the appellant. The appellant Altaf Hussain was also examined by the Medical Officer who found the following injury on his person:-- "(1) Lacerated punctured wound size 3/4 c.m. In diameter with everted and blacking margins on lower 1/3rd of posterior side of left forearm, through and through lacerated punctured wound size 3 c.m. x 1 c.m. With everted margins on lower 1/3rd of anterior side of left forearm." 20. From the said injury it is clear that margins of the injury were black. It was received on left forearm. The deceased had 2 injuries with black margins. Those are injuries Nos.3 and 4. If for the sake of arguments we accept the story of the prosecution that the deceased and appellant Altaf Hussain had received injuries simultaneously, then injury on the person of the appellant Altaf Hussain and injuries Nos.3 and 4 on the person of the deceased were caused together as they were having black margins on the wounds, therefore, the deceased had received injuries Nos.3 and 4 in the second round of firing. Thus, the injuries Nos.1 and 2 on the person of the deceased were appeared to have been received in the first round of the firing. According to the Medical Officer the injuries Nos.1 and 2 were sufficient to cause the death in ordinary course of the nature and the death was instantaneous. If the deceased had received injuries Nos.1 and 2 in the first round of firing, then he could have not left the motorcycle and would have not been in a position to grapple with the appellant Altaf Hussain because, after receiving the said injuries the deceased must had died or was not able or in a position to grapple with the appellant. Furthermore, the seat of injury No,1 was such that it could not have been caused without causing injury to the person who was sitting with the deceased very closely on the rear seat of the motorcycle. However, there is no injury on the person of the complainant who was allegedly sitting very closely on the rear seat of the motorcycle at the time of firing. Thus, the ocular testimony is in direct conflict with the medical evidence and is not fitting in the circumstances of the present case. 21. Apart from the above facts all the witnesses are unanimous that incident took place at 1-00 a.m. And immediately thereafter the complainant went to police station and lodged the report which was recorded at 2-30 a.m. According to the Investigating Officer, he reached the place of incident at about 4-15 a.m. Where he prepared the Mashirnama of the place of incident, inquest report and then sent the dead body to the Medical Officer which must had been received by him after 4-15 a.m. But the Medical Officer deposed that on 16-7-1997 he received the dead body at 1-00 a.m. This statement was given by him in the examination-in-chief. His statement was further verified from the receipt of the appellant Altaf Hussain. He deposed that on 16-7-1997 at 4-00 a.m. He received appellant Altaf Hussain for examination and certificate. He further deposed that on the same night before the appellant was received, the dead body of deceased was received by him. Thus, it is not only once, the Medical Officer deposed that he received the dead body before 4-00 a.m., but he was so specific that he gave time as 1-00 a.m. Of the receipt of the dead body. If that is so, then, how the dead body was received by the Medical Officer at 1-00 a.m. When the incident itself was alleged to have taken place at the same time? This could not have been possible. It appears that incident must had taken place before 1-00 a.m. And then the dead body was received by the Medical Officer at 1-00 a.m. However, a doubt has been created in the prosecution story which the prosecutions have failed to explain. On the contrary the prosecution accepted the statements of Medical Officer, as they did not clarify the position in the re-examination. It is well-settled principle of law that a doubt is always to be resolved in favor of the accused. 22. The scrutiny of the evidence reveals that the ocular testimony is highly doubtful/therefore, it is very unsafe to rely upon such type of evidence. The arguments of the defence counsel that the witnesses were not present on the date, time and place of incident is not unfounded. 23. As regards injuries on the person of the appellant, it is the case of the prosecution that the Investigating Officer while going to the place of incident arrested the appellant on the way and then he was taken to the Medical Officer as he has injuries on his person. In order to establish this
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point, the prosecution examined Investigating Officer Iqbal Ahmed. His evidence reveals that after registration of the case he proceeded to the place of incident along with the complainant and his subordinate staff. On the way when they reached at Deenpur Lara situated at Thul Kandhkot Road, on the headlight of the police mobile van he saw a person crossing the road towards southern side. The complainant identified the said person to be the culprit involved in the case and disclosed to the police that the said person was appellant Altaf Hussain. The police apprehended the appellant in presence of Mashirs Anwar Ali and Sher Muhammad. The appellant had injuries on his person, therefore, he took the…
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