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Petitioner: ZAHEER AHMAD VS Respondent: GUL SHER and 6 others
Court Name: Sindh High Court Judge(s): Ali Nawaz Budhani, Syed Sajjad Ali Shah Title: ZAHEER AHMAD vs GUL SHER and 6 others Case No.:Criminal Acquittal Appeal No, 7, Criminal Revision No, 6 of 1980 and
JUDGMENT
Reported As: 1984 P Cr. L J 2839 Result: Order accordingly Judgment JUDGMENT ' Sajjad Ali Shah, J.-- Present three appellants namely Khalil son of Sahebdino, Dawood son of Nabahoo and Abdul Jabbar son of Azizullah have filed this appeal being aggrieved against the judgment, dated 30th June, 1979 of learned First Additional Sessions Judge, Sukkur whereby they have been convicted for offence under section 302/34, P.P.C. And have been sentenced each to imprisonment for life and a fine of Rs, 2,000 in default of the payment whereof R.I. For six months. It is further directed by the learned trial Judge that half of the fine if realised be paid to the heirs of deceased as compensation under section 544-A, Cr. P.C. In fact initially six persons including the present three appellants were challaned and tried and by the impugned judgment three namely Gulsher son of Abdullah Abdul Haque son of Ghulam Rasool and Haji son of Dhani Bux have been acquitted. It would not be out of place to mention here that the appellants as well as acquitted accused persons are Kalwaras by caste with the exception of Haji son of Dhani Bux, who is Bhutto by caste. There is also before Acquittal Appeal filed by the State in which acquittal of three persons mentioned above has been challenged. There is also before us Criminal Revision Application filed by complainant Zaheer Ahmad calling in question the impugned judgment on the grounds that acquittal of three persons named above is not proper and sentence of life imprisonment to present three appellants is inadequate. Since the two appeals and the revision application arise from the same case and the same judgment impugned herein, we propose to dispose them of by this common judgment. 2. Briefly stated the prosecution case as depicted in F.I.R. Is that deceased Muhammad Ashraf resided at his land in Deh Jhangiari and had a quarrel with Kalwaras over possession of the land
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and to that effect cases were pending in the Court. On the day of incident i,e, 22nd March, 1976 deceased Muhammad Ashraf and P.Ws. Sajid Ali and Abdul Sattar came to complainant Zaheer Ahmad in -Ghota Bazar in Ghotki and deceased Muhammad Ashraf informed complainant that Kalwaras were threatening him so he apprehended danger. At 6-30 p.m. Complainant and the two witnesses mentioned above went together with deceased Muhammad Ashraf to the bus stand to see him off. On the way when they crossed railway crossing, which was in the vicinity of Khanpur bus stand, six assailants, who are specifically named in the F.I.R. Including present three appellants emerged from the eastern side duly armed with hatchets. Appellant Abdul Jabbar abused and declared that Muhammad Ashraf had provided an opportunity and should not be spared. After that all the six assailants showered hatchet blows on Muhammad Ashraf. Witnesses present raised cries and the assailants fled away after having knocked down Muhammad Ashraf with hatchet blows. On cries several other persons came to the spot, who saw the assailants and identified them. Complainant lifted Muhammad Ashraf and held him in his lap. Muhammad Ashraf mentioned names of all the six assailants and then died. Complainant Zaheer Ahmad left other witnesses near the dead body and repaired to Police Station Ghotki at a distance of one mile from the spot where he lodged report on the same day at 6-40 p.m. 3. Raja Muhammad Akram S.H.O. After recording F.I.R. Visited scene of offence, which was pointed out by the complainant. He found the dead body of Muhammad Ashraf lying on the road in a pool of blood across the railway gate on the main road. He collected blood-stained earth and put it into a sealed parcel. He prepared the Mashirnama of scene of offence. S.H.O. Found on the person of deceased a revolver of .32 bore with a leather belt containing 11 live bullets tied around his waist. He also found a wrist watch and made recovery of these articles vide the same Mashirnama of scene of offence. S.H.O. Also prepared Inquest Report and despatched the dead body to Civil Hospital Sukkur for post-mortem examination. S.H.O. Recorded 161 statement of P.Ws. Sajid, Abdul Sattar and Niaz Ahmad on the same night of incident. It would be pertinent to point out here that S.H.O. Deposed before the trial Court that he had recovered blood-stained clothes of complainant at police station and those of P.W. Abdul Sattar at the scene of offence and put them into sealed parcels. Subsequently on 24th March, 1976 he arrested three assailants namely appellants Khalil and Dawood and acquitted co-accused Gulsher from the Otak of Nekmard Masoo Khan from village Haji Qamardin. S.H.O. Found clothes of appellants Dawood and Khalil to be stained with blood as such he recovered them and put them into sealed parcel. Appellant Khalil while in custody led to the recovery of hatchet from the heap of manure in the courtyard and the hatchet was put into a sealed parcel. Appellant Dawood led to his house and produced a hatchet from wheat crop behind his house which was found to be washed but even then was put into a sealed parcel. It may be mentioned here that no recovery of weapon was made from acquitted accused Gulsher on that day when he was-arrested but subsequently on 26th March, 1976 he is stated to have produced a hatchet from bushes on Khanpur road near 'Choral Dhori'. The hatchet was found to be stained with blood and was put into a sealed parcel. It is deposed by the S.H.O. Before the trial Court that on the same day, i,e, 24th March, 1976 he went and arrested the remaining three assailants .1amely appellant Abdul Jabbar and acquitted accused Abdul Hague and Haii from village Mula Chhutto and took them in custody. Appellant Abdul Jabbar while in custody led to the recovery of hatchet which was buried underground near the wall of his house. The hatchet was put into a sealed parcel. On 26th March, 1976 i,e, after two days of arrest acquitted accused Haii produced hatchet which was lying below the railway bund. The hatchet was found to have been washed but there appeared slight stains of blood hence it was seized and put into a sealed parcel. Acquitted accused Abdul Haqe though arrested on 24th March, 1976 is said to have produced hatchet on 26th March, 1976 after digging out the same from the bed of the Dingro canal near the culvert. This hatchet was put into a sealed parcel. S.H.O. Has further stated that he did not send
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blood-stained clothes of the witnesses to the Chemical Examiner but sent the other articles in the sealed parcels to him for examination. After completing the investigation he presented challan in the Court. . ' Prosecution has examined nine witnesses in support of its case. ' Ocular testimony is furnished by three witnesses namely P.W.4 Saiid Ali, P.W.5 Zaheer Ahmad complainant and P.W.6 Abdul Sattar. P.W.1 Dr. Abdul Rauf conducted the post-mortem examination and produced in the Court such report Exh. 8. According to the doctor there were 12 injuries ot of which 11 incised wounds and injury No,12 was multiple abrasions on the back of left shoulder. On internal examination he found both parietal, frontal and occipital bones fractured on left side. Membrances and brain substance was out under injury No,1 which was incised wound 5" x 1}" x cranial cavity deep on the vertex. Death was due to shock and haemorrhage. Injury No,1 individually and all other injuries collectively were sufficient to cause death in the ordinary course of nature. Injuries were caused by sharp cutting weapon such as hatchet. Death was instantaneous. 5. P.W.2 Hidayatullah constable is corpse-bearer while P.W.3 Gohar Ali Tapedar has prepared the sketch of Vardat Exh. 12 on 14th September, 1978. P.W.7 Rau Muhammad Zafaryab is Mashir who has attested and produced Mashirnamas Exh. 20 to Exh. 32, which covers most of Mashirnamas including those of arrest, recovery of clothes and recovery of weapons and Inquest Report. P.W.8 is Amanullah Mashir, who has attested and produced Mashirnama Exhs. 30, 31 and 32. P.W. 9 is Raja Muhammad Akram S.H.O. Who has investigated the case as stated above. Prosecution has produced report of Chemical Examiner Exh. 34 which is positive in respect of contents of all the nine parcels sent to the laboratory that they were found to be stained with human blood. 6. Before the trial Court in their statements under section 342, Cr.P.C. Defence has been taken of denial simplicitor of all prosecution allegations and false implication due to enmity. Appellant Khalil has produced certified copy of judgment in Case No, 279 of 1975 State v. G!Iulam Qadir and others under section 324/323/148, P.P.C. As Exh. 28/A. He has also produced true copy of Challan Exh. 28/B. Certified copy of complaint filed by Muzaffar Ali Arain Exh. 28/C and true copies of statements with orders of Magistrate thereupon as Exh. 28/D and Exh. 28/E. He has produced copy of sketch of land in Deh Jangiari Exh. 28/F, Rubkari Exh. 28/G. Khasra Gardawari Exh. 28/H and Exh. 28/1. He has also produced Electoral List of Deh Penhwar showing name of P.W. Abdul Sattar at Serial No, 18. This is Exh. 28/J. He has also produced Electoral List Exh. 28/K and a certificate issued by Principal Government Degree College Sukkur Exh. 28/L showing P.W.5 Sajid Ali as student for years 1975-76 and 1976-77. ' Acquitted accused Abdul Haqe had stated that he was a primary teacher and had no concern either with deceased or other accused. 7. In defence three witnesses namely D.W.1 Karamdin D.W.2 Manjhi n d D.W.3 Ghulam Muhammad Lashari have been examined, who have claimed that they were near the scene of offence and had seen the ;ncident. It is further stated that statements of these witnesses were recorded by police during the investigation but they were not examined as eye-witnesses hence they were examined as defence witnesses. According to these witnesses there were three assailants, whose faces were open and they were different from accused persons involved in this case. Defence has examined Agha Kalbe Hyder as D.W.4 who is Principal Government Degree College, Sukkur and stated that he had issued certificate Exh. 28/L which shows that P.W. Sajid Ali was a student of that college. It is argued by the counsel for appellants before us that evidence of this witness in particular has been produced to negative the claim of eye-witness Sajid Ali who has claimed to have accompanied deceased Muhammad Ashraf on the day of incident from his village to Ghotki at 12-00 noon and to have seen the incident at 5-30 p.m. It is stated by Mr. Junejo that this witness was in the college at Sukkur on the day of incident.
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8. We have heard Mr. Muhammad Hayat Junejo counsel for appellants, Mr. Murtaza Hussain counsel for State and Mr. Shaukat Naqvi counsel for complainant and with their laborious assistance we have subjected the record to minute scrutiny. Prosecution has produced ocular evidence, evidence of dying declaration of deceased who gave names of assailants to the eye- witnesses, circumstantial evidence of ar.Rest, recovery of weapons and clothes from the assailants and motive. Defence has produced documents to show enmity and has examined four witnesses out of whom three have claimed to be present at the scene of offence at the relevant time and saw three assailants, who were different from accused persons present in the trial Court. Fourth defence witness Agha Kalbe Haider, Principal Degree College Sukkur deposed that P.W. Sajid Ali an eye-witness in this case was a student at Sukkur. 9. We now first take up ocular evidence. Prosecution in this context has examined three witnesses namely P.W. 4 Sajid Ali, P.W.5 complainant Zaheer Ahmad and P.W.6 Abdul Sattar. ' It will not be out of place to mention that deceased Muhammad Ashraf originally belonged to Chak No, 42/12 in District Faisalabad. He came from Punjab in the year 1965 and first settled in Deh Jamal Taluka Kandkot District Jacobabad and purchased some land there. He handed over those lands to his brother and moved to District Sukkur. Deceased had many other lands in other parts but at the relevant time was living on his lands in Deh Jhangiari. Taluka Ghotki. Incident took place in Ghotki town near the bus stand at railway crossing. Three eye-witnesses have claimed to be present there at the time of incident and have further asserted that they have seen the incident. Since the incident had taken place in the town these eye-witnesses have to account for their presence at the spot with satisfactory explanations. Before we come to the explanations we would like to point out that eye-witness Sajid Ali is nephew of deceased and at tbe relevant time resided with his uncle in Deh Jhangiari. Another eye-witness complainant Zaheer Ahmad is not related to the deceased but his father's name is Ch. Muhammad Ismail and at the time of deposing before the trial Court he has given his address as People's Colony in District Faisalabad. In the very first sentence of his examination-in-chief-before the trial Court complainant Zaheer Ahmad has admitted in categorical terms that deceased Muhammad Ashraf was known to him as he was his friend. At another place in his evidence before the trial Court complainant has stated that deceased Ashraf had met him on other places also prior to this incident. Deceased Ashraf was friendly with him but with Mr. Ashfaq Advocate deceased had cordial relations. Complainant has further testified before the trial Court that deceased Ashraf came to his house at about 4 p.m. And told him that Hap Ibrahim and his relatives all Kalwaras by caste had threatened him with dire consequences. Still at another place in his deposition complainant has expressed that deceased had on two previous occasions informed about his apprehension from Kalwaras but he was not advised by this witness to report the matter to the police. At another place in his deposition complainant has further stated that he knew that deceased Ashraf was accused with P.W. Sajid Ali in a criminal case pending at Ghotki. It is also stated by the complainant in his deposition that on the day of incident after hearing about apprehension of deceased from Kalwars he accompanied deceased and the other two eye-witnesses to the bus stop to see the deceased of. The references from the evidence of complainant stated above clearly show that complainant was a close friend of the deceased and was vitally interested in him. This fact of frienship is further fully supported by P.W. Sajid All who has deposed before the trial Court that on the day of incident at 4 p.m. Deceased, P.W. Abdul Sattar and he went to the house of the complainant Zaheer Ahmad. Deceased Ashraf informed complainant Zaheer Ahmad that he was being threatened by Kalwars and it is on that account that complainant Zaheer had to accompany them to the bus stop of Khanpur. This witness has further stated in his evidence before the trial Court that, on the day of incident he, deceased Ashraf and P.W. Abdul Sattar went from the shop of Shah Muhammad to the house of complainant Zaheer Ahmad where they stayed for 11 hours and from there all went together to the
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bus stop. This witness has further stated before the trial Court that he used to come to the house of complainant Zaheer with deceased. At another place this witness has admitted that complainant Zaheer belongs to Faisalabad but in Ghota Bazar he used to reside with his family and they were on friendly terms with Zaheer. Likewise P.W. Abdul Sattar has also admitted friendship between deceased Ashraf and complainant Zaheer and has further stated in his deposition before the trial Court that he had gone with Ashraf to the house of complainant Zaheer once or twice in the past and on those occasions Zaheer did not come with him upto Khanpur bus stop. This answer was given by this witness in response to the question as to apart from the day of incident did complainant Zaheer accompany deceased Ashraf to the bus stop. It is, therefore, clear that three is enough material on the record to say that deceased Ashraf and complainant Zaheer were very close friend and on that account complainant Zaheer was vitally interested in the deceased and his evidence can be treated at par with a witness who is a relation. 10. The third eye-witness Abdul Sattar claimed in his deposition before the trial Court that deceased Muhammad Ashraf was known to him and at the time of incident he was cultivating land of deceased Ashraf in Deh Jhangiari Taluka Ghotki and further that he used to live in a house in Deh Jhangiari. To P.W. Sajid Ali suggestive question was put which he denied by saying that it is not a fact that P.W. Abdul Sattar is my real brother. In the deposition of Sajid Ali it appears at the caption that father's name of Sajid Ali is given as Muhammad Sadiq. Likewise in the 'deposition of Abdul Sattar his father's name appears in the caption as Muhammad Sadiq. Both these witnesses have given different castes. P.W. Sajid Ali has given his caste as Bhatti while P.W. Abdul Sattar has given his caste as Rindawa. P.W. Abdul Sattar in his deposition before the trial Court has admitted that he had given his caste in his police statement as "Jat" which is sub-caste of Rindawa. Any way we take the statement of P.W. Abdul Sattar at its face value that he was Hari of deceased Ashraf at the relevant time and was living in Deh Jhangiari where deceased also used to live. 11. Now we take up the evidence of these three eye-witnesses for proper appraisal to see whether it inspires confidence that they are truthful eye-witnesses and have seen the incident and have fully identified all the assailants. Both Sajid Ali and Abdul Sattar have claimed to have come alongwith deceased Ashral from Deh Jhangiari to Ghotki town on the day of incident. In the very outset it may be mentioned that Sajid Ali is nephew of deceased and used to live with him and in his deposition before the trial Court stated categorically that during the days when incident took place he had obtained admission in Ghotki College in First Year Science. Then voluntarily stated that he was not attending the college regularly. This assertion of P.W. Saiid Ali stands falsified by D.W. 4 Agha Kalbe Haider, Principal Degree College Sukkur who has deposed before the trial Court that he had issued certificate to the effect that Sajid Ali son of Sadiq Bhatti was a student of Degree College Sukkur. He produced such certificate as Exh. 28/L. The defence witness further stated in the trial Court that he knew Sajid Ali who was his student and he was known to him very well. This defence witness was cross-examined on the lines whether a student can take admission in two different colleges at two different places in the same academic year. To this question this witness replied that if a student wants to make a mischief he can do so. This defence witness further could not say whether on the relevant day when the incident took place Saiid Ali had attended the college at Sukkur for the reason that he had not brought attendance register with him. Now whatever be the value of evidence of this defence witness a few things emerge outstandingly. Firstly P.W. Sajid All has categorically stated that he had taken admission in Ghotki College in First Year Science but did not produce Identity Card of that College before the trial Court. On the other hand the defence has examined a witness who is Principal of the Degree College at Sukkur who has issued certificate to the effect that Sajid Ali was at the relevant time a student of Degree College Sukkur. There is no rebuttal of this evidence produced by the defence. For the time being it can be said that assertion made by P.W. Sajid Ali about his admission in Ghotki College stands to a great extent falsified. On
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one hand Sajid. Ali has not challenged or denied his admission in Degree College at Sukkur and on the other hand he has failed to produce his admission card of College at Ghotki. This shows that this witness has the tendency to lie whenever it suits him. ' Another thing which goes against this witness Sajid Ali is that he had admitted before the trial Court in his statement that Raja Muhammad Akram had filed a case against him under section 211, P.P.C. Incidently section 211, P.P.C. Relates to false charge of evidence made with intent to injure. Additionally P.W. Saiid Ali has admitted in his deposition before the trial Court that he has been convicted for an offence under section 325. P.P.C. And appeal arising from that was pending before the Sessions Court. 12. Eye account of occurrence testified by these three eye-witnesses is far from satisfactory. It is stated by them that they were in the company of deceased on the day of incident at the relevant time and after they crossed the railway crossing six assailants emerged armed with hatchets, out of them Abdul Jabbar instigated and then all the assailants inflicted hatchet blows and when deceased Ashraf fell down, assailants ran away. The most important feature of ocular evidence is whether these eye-witnesses knew the assailants before the incident or not. Eye-witness Sajid Ali has stated before the trial Court in his examination-in-chief that the assailants were not known to him prior to the incident. Eye-witnesses Abdul Sattar deposed before the trial Court that he knew all assailants by their names and faces. Complainant Zaheer Ahmad has stated before the trial Court that he knew all the six assailants and had named them in F.I.R. Specifically. It is further stated by all the three eye-witnesses that apart from their having seen the incident when Ashraf fell down after injuries and the assailants ran away, injured Ashraf was taken in lap by complainant Zaheer Ahmad and iniured Ashraf uttered the names of all the six assailants. In this context it may be mentioned that when eye-witnesses knew the assailants by names and faces then what was the need of deceased Ashraf making a dying declaration to utter the names of all the six assailants for the benefit of eye-witnesses. Deceased can be expected to make such dying declaration when either the eye-witnesses have not seen the incident or they did not know the names of the assailants. Complainant Zaheer Ahmad stated before the trial Court that names and faces of six assailants were known to him and in his examination-in-chief he has given the relationship of assailants by saying that Abdul Jabbar is nephew of Haji Ibrahim, Abdul Haque is cousin of Haji Ibrahim, Khalil is nephew of Haji Ibrahim and Haji Bhutta is tenant of Abdul Jabbar. Strangely enough complainant has not given such relationship of assailants inter se in his police report. When cross-examined further on this question complainant stated before the trial Court that he could not give details of brothers of Khalil nor he knew how many brothers he has. Similarly he cbuld not give details of other relatives of other assailants. This witness further admitted that he never attended any feast of assailants nor they were invited by him. He had no dealings with assailants prior to this incident. This witness denied a suggestion that assailants were not known to him and he had been tutored to give their names with exact relationship. In this connection remaining two eye-witnesses Sajid Ali and Abdul Sattar have deposed before the trial Court that after the incident deceased Ashraf addressing the complainant Zaheer uttered the names of all the six assailants and further said that they were the persons from he had apprehension. Both these witensses have further stated before the trial Court that complainant Zaheer was not aware of the names of the assailants and that is why deceased had to give him the names. Eye-witness Sajid All stated before the trial Court that Zaheer was not aware of the names of the assailants but subsequently stated that he could not say if Zaheer knew the names of the assailants or not but his uncle gave the names of culprits to Zaheer in his presence. At another place in cross-examination before the trial Court Sajid All stated that he could not say if Zaheer reported the incident to the police on the information given by deceased about the identity and names of assailants, or he reported the incident on his personal knowledge. Similarly eye-witness Abdul Sattar also stated
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that iniured Ashraf gave names of assailants to them while addressing Zaheer and further said that they were the same persons who were extending threats to him about whom he expressed his apprehension to Zaheer. This witness further stated in his examination-in-chief that deceased Ashraf gave names of the culprits to Zaheer being under the impression that probably Zaheer…
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