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Petitioner: PISSAND AND 12 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Tufail Ali A. Rehman Title: PISSAND AND 12 Others vs THE STATE Case No.: Criminal Appeal No. 415 and Confirmation Case No. 81 of 1971 Date of Judgment:1974-04-20 Reported As: 1974 P Cr. L J 77 Result: case failed
JUDGMENT
JUDGMENT TUFAIL ALI A. REHMAN, C. J.-Seventeen persons were tried by the learned .Additional Sessions Judge, Larkana, on the charges under sections 148, 302, 149, 324 and 149 of the Pakistan Penal Code and sections 13-D and 13-E of the Arms Act ; their names are as under:- 1.Pissand son of Bachal. 2.Muhammad Saleh son of Azizullah. 3.Qadan alias Kadan Jurio son of Wali Muhammad. 4.Muhammad Salik son of Khudadino. 5.Khudadino son of Muhammad Sadiq. 6.Mithal son of Lal Khan. 7.Mian bux son of Wali Muhammad. 8.Karamullah son of Sanwai. 9. Soihro son of Sohharo. 10. Arzi son of Haibat. 11. Liaquat son of Mangio. 12. Abdul Nabi son of Haji Abdullah. 13. Wali Muhammad son of Sherdil. 14. Allahjurio son of Sherdil. 15. Gulan son of Abdul Nabi. 16. Kaman son of Sanwal. 17. Sadiq son of Khudadino. Of these 17 persons the learned Judge acquitted four namely:-
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1.Muhammad Saleh son of Azizullah. 2.Khudadino son of Muhammad Sadiq. 3. Mithal son of Lal Khan. 4. Arzi son of Haibat. The remaining 13 persons were convicted under section 148 and under sections 302 and 324 both read with section 149 of the Pakistan Penal Code. For the offences under section 324 and 148 be sentenced each of the accused persons to two years' rigorous imprisonment but for the offence under section 302 read with section 149, of the Pakistan Penal Code he sentenced Pissand, Muhammad Dalik, Karamullah, Sojhro, Liaquat, Abdul Nabi, Wali Muhammad and Muhammad Sadiq to death, while the others to transportation for life. All the sentences of rigorous imprisonment including the sentences on the condemned prisoners, if the death sentence was not confirmed by this Court, were ordered to run concurrently. The present is an appeal against these convictions and sentences; the record of the case is also before us for the purposes of confirmation of the death sentences of the condemned prisoners. 2. At the conclusion of the arguments in this case I was unable to hold that the prosecution had made out any case beyond reasonable doubt again any of the appellants other than Pissand, Qadan alias Kadan, Jurio and Muhammad Salik that is to say appellants 1, 9 and 3 respectively. In regard to these three, although I considered them guilty of some offences, I was not persuaded that they were guilty of the offence of murder and I thought that the offence of which they would be guilty would be either punishable under section 304(1) read with section 34 of the Pakistan Penal Code or under section 326 read with the section 34 of the same Code. From the point of view of the assessm ent of the sentence it male little difference under which of these sections they were to be convicted since either offence is punishable with a maximum of transportation for life or 10 years' rigorous imprisonment. Accordingly, section 367(3) of the Criminal Procedure Code permitting such a course of action, I propos-d that they be convicted alternatively under the two sections and, deeming the sentence of 7 years' rigorous imprisonment a proper sentence under all the circumstances of the case, I proposed to sentence them to that period of rigorous imprisonment. My learned brother, Mr. Justice Fakhruddin, concurring in this course of action we announced judgment to that effect, against these three appellants while acquitting the remaining ten leaving our reasons to be recorded later. What I am about to say is the record of reasons which induced me to follow this course. 3. The prosecution party were resident at the relevant time of a village called Pirajaj in Taluka Warab in the district of Larkana. The accused party also are residents of the same village, or in some case, of the village of Jamak or Wagan, which, it would seem, are so very near the village of Pirajaj as to make no very great difference. The incident itself took place at a distance of about 300 paces from village Hithayan Boohar which is about a mile from the village of Pirajaj and about six miles from the Drigh Police Station. The accused party are all entirely related inter se though it is unnecessary to set out the specific relations as also is the prosecution party inter se; I use the expressions Accused Party", "Prosecution Party" as including not only the actual accused persons in this case or the deceased persons and the witnesses, as the case may be, but others whose names might transpire in the context of previous motives but, from general description, must be excepted, accused Muhammad Saleh son of Azizullah Tunio who is among the four persons acquitted by the learned Judge. Both the accused party and prosecution party it will be noticed are Chandios by case while this Azizullah is a Tunio. It would appear, and indeed it is the prosecution case as to the motive, that some land belonging to one Gujran was being cultivated by the prosecution party. Thereafter Khudadino, one of the acquitted accused and father of Muhammad Salik, an accused who has been sentence to death and who is the first Informant in the counter-case took the land or claimed to have taken the land from Gujran for cultivation on
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lease. Accordingly, he, Khudadino, asked the prosecution party there--after to continue to cultivate that land but to treat him as the landlord and to take seed from him, but the prosecution party entirely refused to do so and they said that neither would they cultivate the land on behalf of Khudadino nor would they allow anybody else to do so. On this account there was apparently a fight between the two parties and this had resulted in counter-cases which were pending between them in the Court-of Resident Magistrate, Kamber, when the present incident took place. 4. On the day of the incident that is 5 September 1970, a Kabaddi Match was scheduled to take place in the village of Boohar at about Biprihri time. From amongst the prosecution party, according to themselves, three deceased persons Qurban, Anwar and Allah Jurio and two of the witnesses namely, Lal Bux and Dino left their village for witnessing the Kabaddi Match. Now these other witnesses are the only two injured persons upon the prosecution side and it may well be that although they expressly mention only these five in the first instance, others from among the prosecution party might also have gone for the some purpose; indeed they themselves mention Ghulam Hussain and Lutif A.I who also came along to see the Kabaddi Match but they say that these two followed behind it, might be noticed that of these Lutif A.I is, but Ghulam Hussain is not, a prosecution witness. Although the prosecution witnesses do not expressly say so, it would not seem unlikely that the accused party also knew that a match was going to be held at Boohar and that some of them also might have come there for the purpose of seeing the match. Be that as it may, the case of the prosecution then goes on to the effect that, after having witnessed the Kabaddi Match at about Mirri Tipahri time, which would mean three or four p.m. The three deceased and the two injured left for their village on foot and were followed again by Ghulam Hussain and Lutif A.I. When they have gone some distance, which is variously described as 300 or 400 paces from the place where the match was played, the 17 accused persons came out from an ambush in an uncultivated piece of land and were identified by the witnesses because they were previously known to them. So far as Muhammad Saleh Tunio is concerned however there is a discrepancy as to his presence between the evidence of the various witnesses and the first information report to which I shall revert). Of the accused persons Khudadino is said to have been armed with a pistol, Mithal with a gun while the remaining were all armed with hatchets; on any version of the matter Muhammad Saleh Tunio was not armed at all. Khudadino is then said to have fired in the air and instigated the remaining accused persons to kill Lai Bux, Allah Jurio, Anwar, Qurban and Jumo. All the accused are then said to have pounced upon the prosecution party and inflicted several and severe blows with the sharp side of the hatchets as a result of which it said that Anwar and Qurban died on the spot, while Allah Jurio, Lai Bux and Jumo were injured. Allah Jurio is also a deceased person but it is not alleged that lie died at the scene this again is a point which is controversial and I shall deal with the controversy at a more appropriate stage. On the cries of the victims Latif A.I and Ghulam Hussain ran up and they also saw the whole incident with their eyes and entreated the accused party to stop fighting as a result of which the accused finally went away taking with them their weapons. Some of the accused party were also injured and quite severely and these injuries are sought to be explained in the deposition of the witnesses as having been inflicted by them in pure self-defence, but no such explanation was put forward in the first information report which indeed makes no mention of any such injuries at all. Latif A.I was then deputed to go to inform Shah Nawaz who is a relation of the prosecution witnesses and also their Naikmard. Lutif A.I apparently went to Shah Nawaz and, having informed him of all the facts, brought him back to the wardat. By this time it is alleged that it was already Somhani time. Allah Jurio was nevertheless stated to be conscious and he, as well as Lai Bux Jummo, are stated to have narrated the entire incident to Shah Nawaz giving him also names of the accused persons. Shah Nawaz then sent for some cots from the village upon which the injured persons were placed and then proceeded towards the Drigh Police Station. At the Khosa village, which from the context, it is clear is on theth
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way from the scene to the Drigh Police Station he hired a bullock cart in which the injured persons were placed, the rest of the journey was accomplished, the injured being in the bullock-cart, and the others proceeded on foot. They reached Drigh Police Station at 3 a.m on 6th September 1970, and at that time the first informa--petition report, lodged by prosecution witness Lai Bux, was registered and recorded by Assistant Sub-Inspector Police, Muhammad Nawaz. 5. Muhammad Nawaz then accompanied the witnesses to the scene of offence and commenced an investigation. Before doing so, however, at the police station itself recorded the statements of Jummo, Allah Jurio and Shah Nawaz. Be it noted that Allah Jurio is, still stated to be conscious and the statement that he gave them to the police has been treated in the case as his dying declaration. However, he was then sent to tile Kabbar dispensary for examination but died on the way before he could reach the Dispensary. Nothing of note has been done by the Assistant Sub- Inspector at the scene but that would seem to be quite understandable because, in the meantime, a counter first information report had been registered by the appellant Muhammad Salik at 11 p.m. And having been registered by the S. H. O. Himself, namely Saeed Ahmed, the latter was already at the scene and the Assistant Sub-Inspector of Police thereafter handed over the papers to him for further investigation of both cases. There is no controversy between the parties as to the place where the incident occurred. According to the both first information reports and according to the case of both the parties at the trial the scene was the same. The case put up in the counter first information report was that the appellants Muhammad Salik accompanied by Kadir and Muhammad Pissand had come to see the match and, having seen it, were coming back towards their own house accompanied by the accused Muhammad Saleh son of Azizullah Tunia when they were set upon by 8 persons namely Adam, Misari, Soomar. Qurban, Anwar, Laloo, Allah Jurio and Jumo. It would be noticed that from amongst his own side Muhammad Salik mentions himself and Muhammad Pissand from amongst those who were eventually accused in this case besides Muhammad Saleh son of Azizullah Tunio. From amongst those who are now either prosecu-- petition witnesses or deceased persons in this case he mentions only Qurban, Anwar. Allah Jurio and Jummo. He claims that they were attacked and given injuries with the sharp side of the hatchets and that upon their cries several persons came up, among whom might he mentioned particularly Karamuliah, who is now among the convicted accused, and he then goes on to state that they narrated all these facts to one Maulvi Abdul Khaliq and then came to lodge the report. The report, of course is substantially earlier in point of time than the one which was made by the first informant Lai Bux in the present case. The motive given for the incident is also the same as is assigned by the prosecution. During the course of the investiga--petition no recovery was made excepting that the licensed guns of the accused Khudadino and Mithal were produced as also hatchet from the accused Mian Bux but this latter had not been found by the Chemical Examiner to be stained with blood. On different dates the accused persons in this case as also those in the counter case were arrested and both the cases sent up for trial. These proceeded before the same learned Judge and, although the judgment in this case does not say so, we are informed at the bar that in the counter case the accused persons were acquitted and indeed the reasoning of the judgment in the present case would seem to indicate that that must have been so. 6. In dealing with a case in which an appeal lies both on law as well as on facts it is only proper that an appellate Court should give great weight to the findings of the trial Judge who had the great advantage of seeing and hearing the witnesses giving their evidence and of observing their demeanour. The appellate Court will not lightly substitute its own appreciation of the evidence for that of the trial' Judge. But that is of course not to say that the findings of the trial Judge are, in any sense, conclusive or binding on the appellate Court. Where the appellate Court comes to the conclusion that those findings are vitiated by the application of improper or incorrect modes of assessm ent or the failure to notice important aspects of the case or to give them their due weight
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the appellate Curt will not, and must not, refuse to give effect to its own conclusions. I am not of course attempting to say that these are only reasons which would justify an appellate, Court in reversing a trial Court, but I am emphasising the duty of an appellate Court to render a judgment which it considers just upon the case often giving full weight to the opinion of a Judge who has the advantage over the appel--late Court of having seen the case grow and the witnesses give their evidence. Where sentences of death are involved the duty of the appellate Court is even greater; it is not merely a Court of appeal but is also a Court of confirmation and is, to that extent, performing functions more akin to those of a trial Court although on evidence nevertheless which is not given before itself. In the present case I have reached conclusions so entirely different from that of the learned trial Judge not only upon the question as to what the decisions of the case are to be upon almost every point relating to the credibility of the witnesses and the findings of fact as to what actually occurred, that I think that the more convenient course to follow in this case would be first to examine the judgment of the learned Judge and the reasoning upon, which the material part of it proceeds before I go on to state my own assessment of the evidence and the results to which that assessm ent have led me. 7. After a narration of the prosecution case and that of the defence the learned Judge has framed, as was only proper, the points for considera--petition. The second of these which he considered first he has couched in the following language: "Whether murders of Anwar, Qurban and Allahjurio were committed by intentionally causing their deaths by inflicting them injuries with sharp sides of hatchets as alleged?" Now of course although this was an important question for, unless the trial answered in the positive, there could be no question of murder at all in the present case, it was for the purpose of judgment almost of a formal character. Toe death of these three persons and the fact it was caused by the injuries alleged could hardly in the circumstances of the case, be denied. Nevertheless quite apart from the elaborate statement of the medical evidence the learned Judge recites the evidence of the eye-witnesses as also the dying declaration to which I have earlier referred, the evidence of the Constable who took the corpse to the dispensary and the evidence of the inquest report as also the fact that the blood-stained earth was recovered from the scene of offence duly sealed and, after examination by the Chemical Examiner, found to be stained with human blood. After having reached the conclusion that the question must be answered affirmatively the learned Judge goes on to observe "The aforesaid evidence adduced by the prosecution is natural and con--vincing and at all been discredited and challenged by the accused side. So under these circumstances I place my implicit reliance on the afore--said evidence adduced by the prosecution. In the result my findings on this point are positive." Now, I am wholly unable to understand, how merely because the evidence of the eye-witnesses was corroborated and corroborated conclusively by the medical evidence upon the question that the deceased persons had indeed met their death in homicidal fashion the learned Judge is on that account able to "place his implicit reliance on the aforesaid evidence." It seems to me a little premature at this stage to have recorded his entire belief in the veracity of the eye-witnesses. That upon the particular question then under consideration they could be fully believed I entirely agree. That as a result of the examination of the rest of the case the learned Judge might have been able to rely upon that evidence also is possible but it is entirely beyond any known canon of reasoning to hold that, there having been established to the witnesses of truth on this point, they were necessarily therefore witness of truth on all points. Possibly the learned Judge meant only that to the extent death by homicidal means was required to be proved he is willing to believe the prosecution implicitly and to that extent of course the reasoning suffers from no flaw but the language in which it was expressed might well have been more happily chosen. Curiously enough
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.However, later in the judgment upon a far more crucial question, namely whether the deceased Allah Jurio could have given a dying declaration at all he rejects the medical evidence which was to the effect, that the death must have taken place within a few minutes of the injury being inflicted, upon the flimsiest of reasoning ; indeed the reason is no more than this that it conflicts with the oral evidence. 8. The learned Judge then describes the injuries which were found upon the injured witnesses Jummo and Lai Bux and this might be a con--venient stage to summarise what the medical evidence in this case was. The deceased Anwar had as many as 8 incised injuries, most of them extremely serious and covering almost his entire body, being on the head, the cheek, the chest, the neck both the arms, the ribs and one of the thighs, Allah Jurio bad three incised injuries, one on the chest, one on the left thigh and third on the left side of the back which extended from the third thoracic vertebrae towards the left scapula cutting the 3rd, 4th and 5th ribs leaving the chest cavity open. The deceased Qurban had five injuries; the most serious of these was an incised wound 7' x 2' cutting the muscles of the vertebral column and the spinal cord at the level of the first thoracic vertebral up to the 4th thoracic vertebra and extending from the left side of the back towards right side and this injury the doctor described as being individually sufficient to cause death in the ordinary course of nature. The other injuries were comparatively less serious though they could hardly be described as being simple. They were on the left shoulder joint, upon the left side of the chest, on the lateral side of the left shoulder joint, upon the left side of the chest, on the lateral side of the left axilla and on the root of the right axilla. In regard to the other two deceased persons also there was of course at least one injury which was sufficient in the ordinary course of nature to cause death, though most of them were extremely serious. The injured Jummo had four injuries, all of an incised character but while their dimensions were large enough two of these were only skin deep or muscle deep but cartilage of the upper portion of the right ear and another was 4' deep and extended from the right eye to the right ear. 9. Of the accused persons Qadan, who had also been described as Kadan Jurio had a simple injury 2 -- ' x 1' muscle deep on the left bids of the neck while the accused Pisand had four injuries three of which were grievous; they were an injury 8' x 1 -- cutting the muscle and the vertebrae exposing the spinal cord and extended from the first libar vertebrae up to the sacral portion of the right illiac bone and. An incised wound 3' x 1' cutting the muscles of the left scapula, had left shoulder joint and one which was 2' x 1' cutting scalp deep on the right side of frontal bone extending from the forehead up to right eyebrow. The fourth which was simple was -- ' x -- ' muscle deep and upon the bridge of his nose. The accused Muhammad Salik also had three injuries of which one only was grievous being 9 -- ' x 2 -- cutting the muscles of the head of left femur, left scapula and clavicle shoulder joint and while the other two on the lower jaw and right ear were simple in character. Finally the 4th of the accused to be injured, who has been acquitted, namely Muhammad Saleh Tunio had one injury which was simple being an incised wound 2' x -- ' muscle deep on the lower 1/3 of the left arm. 10. Having taken up the main questions for consideration in this case after having recited the medical evidence, though without stating the injury upon the accused persons the learned Judge gives a summary of the evidence of the eye-witnesses and that of Shah Nawaz, who claims to be a corrobora--tive witness, and at the end of that paragraph, not as a recital of the prosecution case, but as a finding though without any statement of reasoning, the learned Judge observes that the first informant, the deceased Anwar and the deceased Qurban were armed with hatchets and they inflicted blows with hatchets to the accused persons in exercise of their right of private defence of their persons. Now, in this case it being obvious that both sides bad sustained injuries the question of the examination of the right of private defence certainly arose but nowhere throughout therd
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judgment, excepting in this passage and in this perfunctory fashion does the learned Judge deal with this question at all. His reliance upon the - prosecution witnesses' evidence is implicit indeed. 11. The learned Judge goes on then to mention the fact that very many details are now given in the course of the depositions during the trial as to who struck whom but that all these details are missing both from the first information report and from the statements of the witnesses given to the police during the course of the investigation. If the learned Judge had then said that, in the course of an incident of this kind, it is usually not possible to be precise about the attribution of specific parts to each culprit and that, if later the prosecution witnesses attempt to give such details, then this is not a matter which necessarily affects their veracity unless it can be shown that the purpose of the attribution was to cover up some other fault or was motivated by a desire to exaggerate the case against any one individual culprit, I should probably not have disagreed with him on that score. But there was more here guns were said to have been used and fired in the air but, admittedly; no body, either on the prosecution side or on the accused side, received any injury whatever, excepting by a hatchet. What is more, the person who is first said to have used the gun is said to have instigated the others not to leave the prosecution witnesses; if, as is the prosecution case, the accused party bad come there and were waiting in ambush for the purpose of…
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