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Petitioner: YOUSIF VS Respondent: Tim STATE
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Saleem Akhtar Title: YOUSIF vs Tim STATE Case No.: Criminal Appeal No. 323 and Confirmation Case No. 7 of 1978 Date of Judgment:- Reported As: PLD 1981 Karachi 672 Result: Appeal dismissed
JUDGMENT
JUDGMENT SALEBM AKHTAR, J.-By a short order we had dismissed the appeal and confirmed the death sentence. The reasons are as follows:- The appellant was charged under sections 449 and 302, P. P. C. Read with section 34, P. P. C. For having committed trespass in the house of Muhammad Laiq Khan Chandio along with Rasool Bux, Muhammad Sachal and Biro and for having committed the murder of Karimdad, A.I Muhammad and Sher Khan in furtherance of their common intention. The learned Additional Sessions Judge, Dadu by the impugned judgment convicted the appellant for life imprisonment under section 449, P. P. C. And death sentence under section 302, P. P. C. The appellant was imposed with a fine of Rs. 1,000, or in default to undergo R. I. For six months. He was further ordered to pay compensation of Rs. 5,000, each to the heirs of each one of the deceased in default to suffer further imprisonment of R. I. For six months. Before stating the facts of the case it is relevant to mention that along with the appellant three more accused, namely, Rasool Bux, Muhammad Sachal and Beero were prosecuted. Beero died before the trial. The appellant is alleged to have absconded. Rasool Bux and Muhammad Sachal were tried and the learned Additional Sessions Judge, Dadu by his judgment dated 2-3-1977 acquitted them. After the appellant was arrested on 11-6-1977 he was sent for trial. . Briefly the facts are that according to the complainant Mst. Sugghar daughter of P. W. Muhammad Laiq was married to Rasool Bux co-accused who had been acquitted. Muhammad Laiq after obtaining permission from Rasool Bux brought his daughter Mst. Sughar to his house. On 18-11-1973 Rasool Bux husband of Mst. Sughar came to Laiq's house at noon time and obtained permission for taking away Mst. Sughar to his house.
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Muhammad Laiq replied that as Mst. Sughar was not feeling well he may come after 2 or 3 days and take her away. On this Rasool Bux went away is annoyance. On 19-I1- 1973, the day of incident, at about 12-00 noon complainant Bago who is the cousin of Muhammad Laiq, 'his sisters son Bachal, his cousin Kamoo Karimdad son of Sher Khan, Sher Khan son of Moosa Khan, A.I Muhammad and Mohabbat were sitting in the house of Muhammad Laiq when all of a sudden the appellant who was armed with rifle, Bero, Sachal and Rasool Bux who had hatchets in their hands came to Muhammad Laiq's house. Yousuf started abusing and asked the complainant party why they had detained a married woman. It is stated that Karimdad the uncle of Mst. Sughar replied that they had not detained her. Whereupon appellant fired a rifle shot which hit him. Yousuf fired another shot hitting A.I Muhammad and by the 3rd shot Sher Khan was hit and all three died on the spot. It is stated in the F. 1. R. That due to fear no one present went near the accused party and they raised cries. All the four accused ran away. Leaving the P. Ws. With the dead bodies Bago Khan ccame to Dadu and informed Rais Allan Khan Leghari who asked him to lodge a report with the Police. The report was lodged at 20.30 Hours the same day in Police Station, Johi, District Dadu which is about 12 miles from the place of incident. The prosecution examined Bago Khan P. W. 1, Mohabat P. W. 2 Bachal, P. W. 3, Muhammad Laiq P. W. 4 Ghulam Nabi P. W. 5, Dr. S. M. Hashim P. W. 6, Tapedar Ahmad A.I P. W. 7, S. H. O. Muhammad Hasan Jamali P. W. 8, and S. H. O. Muhammad Sadiq P. W. 9 and Ismail P. W. 10. The attendance of Mst. Sughar could not be secured in spite of best efforts of the prosecution as deposed by process server foot constable Ismail. As she had been examined by the committal Court where the enquiry had proceeded in the absence of the appellant, the statement of Mst. Sughar recorded earlier was tendered in evidence. Mst. Sadori cousin sister of P. W. Mohabat and on that account he was inimical with him. He further stated that Laiq is his step father and has usurped his properties and has refused to give him his share and that "All Murad and Mando cousins of P. W. Bago committed three murders of Taj Muhammad and as Taj Muhammad was an old man my brother filed F. I. R. On that account Bago has a grudge against me". The prosecution story is based on the testimony of 5 eye-witnesses, the medical evidence of the doctor, the circumstance that the appellant had absconded and was arrested after three years and the motive for the murder by the accused party. The incident occurred at the residence of Laiq where P. Ws. Bago, Mohabbat, Bacchal Mst. Sughar were present. All the eye-witnesses have testified in unequivocal manner which has not been shaken during the course of cross-examination that at the time of incident Yousuf along with 3 persons named above came at about 12-00 noon. All have stated that Yousuf was armed with rifle and others had hatchets. It has also been stated that first Yousuf abused and questioned why Mst. Sughar had been detained and on denial by Karimdad, Yousuf fired at him and continued firing and killing A.I Muhammad and Sher Khan as well. Mst. Sughar who was examined in the committal Court has also testified that Yousuf fired at all the 3 deceased persons and out of fear she went inside the house. From the testimony of Dr. S. M. Hashim, Medical Officer, it is established that all three persons died due to injuries received from gunshot which he further explained that it could be from the rifle. We need not mention the details of the injuries of all the three deceased persons, suffice it to say, that according to medical report and the opinion of the doctor all of them died due to discharge from a fire-arm like a rifle. The learned counsel for the appellant Mr. Hayat Junejo pointed out the discrepancies and contradictions in the evidence of the prosecution witnesses. He also referred to the Judgment acquitting other three co-accused and submitted that firstly there are serious contradictions which create doubt and discredit the evidence of prosecution witnesses including Mohabbat
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whose presence at the time of incident is not explained and secondly that the learned Judge has used double standard of appreciation of evidence in both the judgments. The occurrence in the house of Muhammad Laiq P. W. Is firmly established as after the report was lodged the dead bodies were removed by the Police from the same place where Mashirnama was prepared. Thereafter the blood stained earth soaked with blood was also secured by the Investigating Officer. All these facts confirm that the incident had occurred at the residence of Muhammad Laiq. Now the question arises whether eye-witnesses should be believed. It is true that except P. W. Mobabbat all other witnesses are related to each other. It may also be noted that accused Rasool Bux who was acquitted was also related to Muhammad Laiq as his son-in-law and the appellant is the.. Step son of Muhammad Laiq. It sounds strange that such close relations will be implicated falsely without any genuine cause or grievance. The learned counsel for the appellant has disputed that as the name of Laiq and Mst. Sughar does not appear in the F. I. R. The entire story should be disbelieved. It is true that there is an omission in incorporating these two names in the F. I. R. But this fact by itself is not sufficient to discredit the evidence of the other persons particularly in the circumstances of the case when the entire incident has happened at the house of Muhammad Laiq where all of them were present. It will be rather unusual that all these persons would come and stay and some of them may have lunch at the house of Laiq if he himself or big daughter were not present `there. The presence of Laiq and Mst. Suhgbar in the light of the evidence brought on record cannot be challenged. Mst. Sughar but went away leaving her. Merely because the appellant and co-accused did not take away Mst. Sughar will not discredit the prosecution case. It is possible as stated by Mst. Sughar herself that when the accused started firing, out of fear she went inside her house. After the firing cries were raised and there was every possibility that neigh--bours may come over there. In these circumstances the accused would have been in a hurry to run away from the scene of occurrence lest they maybe caught red handed by some persons who may come along and therefore they did not take the risk of taking away Mst. Sugghar who might have resisted such attempts. It is also possible that Rasool Bux may have thought it fit to leave Mst. Sugghar that there may be a room for argument as advanced by the learned counsel for the appellant. The learned counsel for the appellant then contended so that Alan Khan Leghari was the first person to be informed of the incident and he seems to have arranged for the F. I. R. To be lodged by P. W. Bago but he has not been examined. The examination of Alan Leghari may have been a corroborative evidence but merely. Because he has not been examined does not mean that other witnesses should be disbelieved. In fact the prosecution filed an application stating that Alan Leghari was not supporting the prosecution and therefore, they were giving him up. We do not feel that it is a strong circumstance to discredit other witnesses. Now there remains the evidence of 4 witnesses which requires considera--petition. Bago has related the incident and has further stated that he lodged F. I. R. During cross-examination he has admitted that the daughter of Muhammad Laiq is married to him and Bachal is his: nephew and resides with him. He also stated that Mohabbat was on visiting terms with him and he had come to the village one day earlier and had stayed in his house. Purpose of Mohabbat's visit was that he bad left his mare for grazing purposes with Karimdad and had come to see it. He further stated that he along with Mohabbat went to Muhammad Laiq to visit him ^without any specific business. The learned counsel for the appellant has stated that since the visit was without any specific purpose it is doubtful that Mohabbat was present at the time of incident. It is not necessary that the visit should be made in connection with some specific business. It is very common that if any one visits a village he usually goes to see other friends and relatives merely to meet them. On this account it is difficult to discredit the testimony of Mohabbat and Bago and conclude that they were
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not present at the time of occurrence. Bago has further stated that he went to Drigh Bala Police Station to lodge the report but the Jamadar asked to report the matter at Johi Police Station. This statement seems to be correct. The learned trial Court has also observed that usually at Police posts reports of heinous crimes like murder are not recorded and the complainants are sent to the police station. This statement does not in any manner betray the testimony of the witnesses. Mohabbat has stated that the Police from Drigh Bala Post had reached the wardat at 3 p. m. Unless the Police had any information at the outpost it would not have been possible for them to visit the wardat at that time. It, therefore, confirms that the statement of Bago is correct. The learned counsel referred to the cross-examination of Bago and stated that there is a contradiction as he has stated that Mt. Sugghar also witnessed the incident although this fact does not find place in the F.1. R. This contradiction is insignificant and cannot have any material effect on the case. So far the incident' of shooting 3 persons by Yousuf is concerned the testimony is firm. Although in F. I. R. It has not clearly been stated that Mst. Sugghar also witnessed the incident, it has been stated that Rasool Bux along with Yousuf and others had come to the hour. Of Laiq and questioned why they had detained Mst. Sugghar. Again Mohabbat has also confirmed that .List. Sugghar was present in the house. The same fact has been stated by Laiq and Mst. Sugghar as well. If Laiq and Mst. Sugghar would not have been present perhaps the matter would have ended there without any occurrence. Mobabbat is admittedly not related to any one. He is a disinterested and independent witness. He has confirmed the facts stated by Bago and also deposed that Yousuf fired three rifle shots one each at Karim A.I Muhammad and Sher Khan who fell down and died. He has also stated that Police secured two empty shells. He is also a witness to the Mashirnama and the inquest reports in respect of 3 dead bodies which he has proved in Court. He has stated that he went to the house of Muhammad Laiq at one pahr time. And took lunch there. He further stated that Karimdad, Sher Khan aid A.I Muhammad had taken lunch about half an hour earlier and that the incident took place immediately after he had taken the meals. The learned counsel for the appellant pointing out to this fact referred to the medical report in which it has been stated that the stomach of the deceased Karimdad and A.I Muhammad was empty. By referring to this contradiction the learned counsel contends that Mohabbat's statement is not correct and his presence is doubtful. The incident occurred about 5 years back and the time for his arrival and taking meals were approximate and not exact. Mobabbat has only stated that the deceased had taken their meals before him but this seems to be an approximate time as he does not say that they had taken meals in his presence. It is possible that the deceased may have taken their meals much earlier than stated. Furthermore according to the medical report small quantity of paste like food was found in the stomach of Sher Khan. Laiq would have been the best witness to contradict this fact, from his personal knowledge but 'defence does not seem to have suggested these facts to him. This fact is not sufficient to doubt the veracity of Mobabbat's statement. As stated earlier Mohabbat being independent and disinterested seems to be a truthful witness. He has no enmity with any of the accused persona and there is no reason why he will make false statement. The presence of Muhabbat is also proved by Bago and also by the fact that he has been a Mashir for the Mashirnama and the inquest reports. It is unthinkable that Mohabbat who does not bear any grudge against the accused would be called from his village and after crossing the long distance he will visit the scene for the purpose of becoming a Mashir. Muhammad Laiq has also stated the facts which were deposed by other eye-witnesses and confirmed that in his presence and in the presence of other eye-witnesses Yousuf came armed with rifle and shot the deceased persons. The only fact which has been effectively suggested during cross--examination is that the relationship between him and Yousuf was strained as Yousuf was annoyed with the marriage of his daughter with Rasool Bux. Earlier during the trial of Rasool
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Bux he had admitted this enmity and was confronted with that statement. However, he also stated that after repeated requests and long pursuation the appellant had participated in the marriage ceremony of his daughter and Rasool Bux. It . Seems that Laiq has all along been trying to pursuade and pacify Yousuf who participated possibly after reconciliation. This shows that at least Muhammad Laiq was not inimical or annoyed with the appellant. Participation indicates to some extent conciliation between the parties. If Yousuf was annoyed on the marriage of Mst. Sugghar with Rasool Bux then why should he accompany Rasool Bux for taking her away. The suggestion that there was some enmity due to the murder of Ghano father of Padar Jamali seems to be very feeble and weak. Bachal's evidence also supports the prosecution case and it does not suffer from infirmity or lacuna. The not result of the assessment of evidence of eye-witnesses is that all of them have unmistakably affirmed that Yousuf had shot and killed the deceased persons. In this regard much weight should be given to the evidence of Mobabbat who is a truthful independent and disinterested witness. Other prosecution witnesses though related to each other are truthful. The effect of the unanimity of evidence cannot be destroyed by the discrepancies pointed out on behalf of the appellant. Inconsistencies of inconsequential nature in statement of witnesses, cannot reasonably be considered as good ground for disbelieving independent, and disinterested and truthful witnesses. Merely because the witnesses are related though no enmity with the accused has been proved, they cannot be termed as interested witnesses and their evidence can be accepted 6 without corroboration provided they are truthful. The learned counsel for the appellant contended that almost all the Prosecution Witnesses have stated that Yousuf fired shots from a distance of 2-4 paces which will be approximately about 6 feet. However, Dr. S. M. Hashim has stated that the discharge of fire appeared to be from a distance of more than 12 feet. But he is of the definite opinion that the death was caused by the discharge of a fire-arm like a rifle. The discrepancy in men--tioning the distance stated by the prosecution witnesses and the medical report, in the circumstances of the case, is not very material to discredit them. It is possible that in cases where the ocular evidence is weak requiring corroboration such contradiction may be considered as a strong circumstance to discredit the prosecution case but in the present case the ocular evidence against the appellant is so firm, convincing and cogent that a mere discrepancy of distance is not sufficient to destroy it. The learned counsel for the appellant has referred to various portions of the Judgment passed by the learned trial Court acquitting other co--accused and stated that the standard of appreciation of evidence in both the Judgments on similar set of facts is completely different. To substantiate his contention he referred to the observation where it was held in the previous judgment that F. I. R. Was lodged after an inordinate delay of more than 8 hours. Such observation in the previous judgment will not vitiate the impugned judgment. The learned counsel further stated that the Court in the previous judgment had observed that Mst. Sugghar in her statement had tried to improve upon the case of the prosecution by saying that Rasool Bux instigated the appellant to fire and in view of this fact the learned counsel contended that the statement of Mst. Sugghar should not be believed as the same was not accepted in the previous judgment. We are not inclined to accept this contention for the simple reason that admittedly in the previous trial only accused Rasool Bux, and Muhammad Sachal were being tried and as in the F. 1. R. And the statement made before the Police the witnesses had not attributed the act of instigation to those accused persons, the learned trial Court did not believe the statement of Mst. Sugghar for convicting those accused. In the present case Yousuf has been tried for murder of the deceased persons and a specific role has been consistently assigned to him. While assessing the evidence it has to be considered how far each witness has proved the prosecution case against each accused if there are more than one. If Mst. Sugghar has tried to improve the prosecution case against Rasool Bux and Sachal then unless her statement against Yousuf is not duly corroborated by the evidence of other witnesses the
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contention of the learned counsel for the. Appellant may be correct. From the record we find that the statement of Mst. Sugghar relating to Yousuf is fully borne out by all the eye-witnesses and circumstantial evidence. In the circumstances in spite of the improvement trade by Mst. Sugghar her statement relating to the appellant cannot be rejected. In this context we may also observe that the impugned judgment cannot be assailed by referring to the previous judgment. The impugned judgment stands completely independent from the previous one. Under C section 42 of the Evidence Act a previous judgment in a criminal trial is relevant in the subsequent proceeding only to show that there was such a trial in which accused was convicted or acquitted. The learned counsel referring to the impugned judgment contended that the learned trial Court has strongly relied upon the abscondence of the appellant and has convicted him on that basis, and, therefore, the judgment should be set aside. The learned trial Court has not convicted the appellant entirely on the ground of abscondence. It has merely relied upon it as a strong circumstantial evidence and has held that the prosecution has fully proved the charge against the appellant beyond any reasonable doubt by evidence of witnesses of unimpeachable character. In fact the learned trial Court has entirely relied upon the evidence of the witnesses and has treated abscondence as mere circumstantial evidence. The appellant was arrested after a period of 3 years and 8 months of the incident. The committal Court had issued process against the appellant and as his presence could not be secured passed an order under section 512, Cr. P. C. Was passed before the commencement of committal enquiry. The proclamation in terms of section 87, Cr. P. C. Was ordered to be issued against the appellant who continued to conceal himself from the Court of law. The appellant was arrested by S. H. O. Muhammad Sadiq of Johi Police Station on 12-6-1977 from village Sole in pursuance of a spy information. The S. H. O. Has testified that the appellant was a proclaimed offender in Crime No. 111/73 and on a secret information about his presence he proceeded to the village of the accused where he was arrested. Mashirnama of arrest was also prepared which was produced in Court but Mashir was not examined. The learned trial Court while recording the statement of the appellant pointedly drew his attention to the fact that after the commission of offence he remained absconded for about 3 years and 8 months and was arrested in his village Sole on 12-6-1977. The appellant denied it and stated that all along he was residing in his village. In these circumstances it has to be considered whether abscondence can be treated as an evidence for convicting the appellant. Abscondence by itself cannot be a strong piece of evidence. It is one of the weakest pieces of evidence and is merely corroborative in nature. A conviction cannot be based on mere abscondence discarding othe D independent material evidence. The conduct of the appellant soon after the incident plays an important role in determining the guilt of an accused person and it is only a corroborative piece of evidence. This point has been considered by our Courts where it has been consistently held that in all cases abscondence cannot be treated in consonance with the guilt. It entirely depends upon the facts and circumstances to determine whether an accused has absonded due to fear of the arrest or with a view to avoid the trial. Siraj Din v. Kala and another (PLD 1964 SC 26), the ocular evidence was not fit to be accepted without corroboration and the prosecution relied upon for purposes of corroboration on several circumstances including the absence of the accused from his house for a number of days following the occurrence. Referring to abscondence Cornelius, C. J. Observed as follows:-- "the first of these circumstances ' is easily explained. A person who has been named as a murderer; whether rightly or wrongly makes himself scarce." Again in the case of Muhammad Aslam v. State (1969 SCMR 383), High Court had convicted the accused on the basis of ocular evidence corroborated by the evidence of his abscondence. It was held that "there were cases pending against both the parties under section 107, Cr. P. C. And the
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relations between them were strained. . In the circumstances the abscondence of the appellants even according to the principles laid down by the learned Judges--was not significant, for their false implication by the other party was likely". In the recent case of A.I Khan v._ The State (PLD 1980 SC 109), the test for accepting or rejecting the abscondence as a corroborative evidence has been laid down by Shafi-ur-Rehman, J. In the following manner:- "11. A.I Khan was a school teacher by profession. He was required to attend to his school duties regularly and punctually. He had been marking his attendance also. His absence even for a day could not go unnoticed or remain unexplained. His sudden dis--appearance for a short while could possibly be explained as an impulsive act of `sheer timidity', aimed at avoiding `risk of disgrace', `torture of Police or the `ordeal of a…
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