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Petitioner: DILMURAD VS Respondent: THE STATEHonorable Justice FEROZE NANA GHULAMALLYAzizullah K. Shaikh,Mohammad Haleem
1969 P Cr
1969 P Cr. L J 1194
[Karachi]
Before Feroze Nana Ghulamally and G. Safdar Shah, JJ
DILMURAD‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 264 and Confirmation Case No. 38 of 1968, decided on 7th March 1969.
Penal Code (XLV of 1860), S. 302‑---Murder‑‑‑ATotive of offence attributed by prosecution not established‑‑‑Prosecution found to have suppressed truth‑Sole testimony of complainant doubtful and contradicted by evidence of other prosecution witnesses and circumstantial evidence on record‑Accused given benefit of doubt and acquitted.
Azizullah K. Shaikh for Appellant.
Mohammad Haleem, A. A.‑G. for the State.
Dates of hearing :15th and 16th January 1969.
JUDGMENT
FEROZE NANA GHULAMALLY, J.‑Appellant Dil Murad son of J:xtfar Lighari has been convicted by the learned Sessions Judge Of Larkana under sections 302, 307 read with section 149, P. P. C. and section 13 (d) of the Arms Act and sentenced to death by hinging and to seven years and two years respectively on each count, the sentences of imprisonment to run concurrently. He has appealed from Jail against his conviction through his counsel, Mr. Azizullah K. Shaikh. The matter is also before us under section 374, Cr. P. C. for confirmation of the death sentence imposed on him. This judgment will dispose of both these matters.
2. This appellant together with two others, Murad son of faro Lighari and Mahboob son of Muhammad Alam Lighari was charged and tried for offences punishable under sections 148, 302 and 307, read with section 149, P. P. C. At the conclusion of the trial the learned Sessions Judge acquitted Mahboob and Murad of these charges holding that there was no evidence or circumstances to connect them with the crime with which they were charged. Government have not appealed against their acquittal.
3. The incident resulting in the murder of Ali Murad took place at about 9 p. m. on the 7th of December 1963, in the Otak of one Haji Yar Muhammad in which were sitting the first informant Ahmad Nawaz, his two relations, Nek Muhammad and Arz Muhammad and Ali Murad a guest of Yar Muhammad. The Otak was a Landhi a temporary structure, open on the south and a hurricane was burning in it at that time. Whilst they were there five persons suddenly entered the Otak through the court yard, challenged those sitting there stating that they have come to take avenge of the murder of one Wali Muhammad. The prosecution case is that Ahmad Nawaz who had a torch flashed it towards the intruders and identified appellant Dil Murad and one Bugro now said to be absconding and that these two were armed with guns, their three companions being armed with hatchets. The party inside the Landhi were fired at by appellant and Bugro from the entrance of the Landhi and Ahmad Nawaz, the first informant, was ordered to put out his torch and having done so immediately concealed himself underneath the Charpai on which he had been sitting. It is also the prosecution case that the appellant and Bugro fired several shots within the Landhi inflicting injuries on Nek Muhammad and Arz Muhammad rendering them unconscious and causing fatal injuries to Ali Murad. Ali Nawaz escaped injuries as he had concealed himself and after the assailants bad left the scene he raised cries which attracted Ramzan, Khairal and others to the Landhi, where they found Ali Murad lying dead and Nek Muhammad and Arz Muhammad injured and unconscious. The glass globe of the hurricane lantern had been shattered by the gunshots fired by the appellants. Haji Yar Muhammad had gone to meet his Zamindar Atta Muhammad at Mirpur village about 12 miles from the scene. Ahmad Nawaz left to inform Yar Muhammad, after detailing the facts and names of the appellant and Bugro to those who had responded to his cries.
It is also the prosecution case that the names of the appellants and Bugro were given to Yar Muhammad by this Ahmad Nawaz at the scene whereafter Ahmad Nawaz was directed to lodge a report at the Shahdadkot Police Station about 15 miles away. The First Information Report was, therefore, recorded at about 6‑15 a. m. the following morning by the S. H. O. Abdul Wahab, who after recording it accompanied Ahmad Nawaz to the scene and prepared Mashirnamas. Ali Murad's dead body was lying there. Empty cartridges were secured. Naked foot‑prints ref several persons were visible outside in the courtyard of the Landhi and an attempt was made to track them by the tracker Tillo Khoso. The lantern with the broken glass was shown to the Sub‑Inspector. Ahmad Nawaz's torch was secured under the Mashirnania, Ali Murad's body was sent to the Civil Hospital through Constable Noor Muhammad, and the injured Arz Muhammad and Nek Muhammad who has accompanied Ahmad Nawaz, the first informant in a bullock cart from the scene to the police station were sent for examination and treat ment to the Civil Surgeon at Larkana, Both these injured were unconscious and unable to make any statement, Statements of Ramzan, Yar Muhammad and others were recorded at the scene On 19‑12‑1963, the statements of the injured Nek Muhammad and Arz Muhammad were recorded in the Civil Hospital at Larkana. On 10‑3‑1964, Sub‑Inspector Muhammad Baklisli arrested Murad son of Tharo and arranged his foot‑print test through Tillo Khoso in the presence of the Head Munshi and III Class Magistrate, Shahdadkot, who picked out his foot‑prints in an identification test. In a later Identification test of Murad held on 13th March 1964 by P. Ws. Arz Muhammad and Ahmad Nawaz only the former was able to pick out Murad. Thereafter P. W. Nek Muhammad also picked out Murad. Further investigation was handed over to the S. H. O. Muhammad Bukhsh, who arrested appellant Dil Murad on the 22nd of December 1964. Bugro the absconding accused was arrested by the S. H. O. Jan Muhammad but he broke custody from the District Prison at Larkana during the committal proceedings. The other accused Mahboob was arrested on 9‑8‑1965. After investigations had been completed, the appellant together with two of his companions was challaned before the Resident Magistrate of Larkana.
4. The motive for the crime, as stated in the First Informa tion Report, was that about 7 or 8 years before the incident some thieves had entered into the house of the Khairal in the complain ant's village whereupon an encounter took place between the villagers and thieves in which one of the thieves namely Wali Muhammad Leghari was shot dead. The said Wali Muhammad is alleged to be a cousin of appellant Dil Murad and according to the complainant Dil Murad and his companions had come to wreak vengeance upon Khairal who was the cousin of complainant ;Ahmad Nawaz.
5. The defence of the appellant in the committal Court was that he was innocent ; that the case against him was false ; that he had not been identified by any one and that tae prosecution witnesses had deposed against him as they were set up by one Rajo Brohi of Ghari Khairo. In his defence in the trial Court stated that the prosecution witnesses were Haris of Punhal Khan and Khudadino Chandio with whom he had enmity as on ,count of elections they had a dispute with the Zamindar namely Allahdino Khan. He further stated that complainant Ahmad Nawaz and prosecution witnesses did not know him before the incident and that he did not know any one by name Wali Muhammad who is alleged to have been killed in the house of Khairal about 7‑8 years ago. However, lie produced no witnesses in his defence.
6. The points that arise for determination are :‑
(i) Whether the deceased Ali Murad died as a result of the injuries received on the night of 7th December 1963 in Yar Muhammad's Otak ?
(ii) Whether Arz Muhammad and Nek Muhammad received ;un shot injuries in the course of the same incident ?
(iii) Whether these offences against the complainant and the two prosecution witnesses were committed in prosecution of the common object of the assailants ?
(iv) Whether the present appellant Dil Murad together with others committed these offences and was himself armed with an unlicensed gun at the time of the incident ?
On points 1, 2 and 3 our findings are in affirmative.
Reasons Nos. (i), (ii) and (iii).‑‑‑‑There is no dispute in regard t‑1 these points in support whereof there is overwhelming evidence. According to the Medical Officer, Ali Murad deceased hail suffered the following injuries
"One contused wound 3/8" in diameter, margins blackened and inverted over the front of the right chest 4" above the right nipple.
Contused wound 3/8" in diameter over cite forehead margins inverted and blackened. No tatooing of the surrounding skin."
Upon the internal examination of his dead body deceased Ali Murad was found to have suffered the following damage
"A fracture of the both tables of the skull underlying injury No. 2, pellet in the frontal lobs of the right brain. There was also a congestion of brain and blood clot over the vicinity of pellet. The pellet of injury No. 1 had passed through the right lung heart and was found on the left side of the chest under the skin."
In the opinion of the doctor Ali Murad had died due to shock and rupture of the heart as a result of gun shot injuries all of which were sufficient in the ordinary course of nature to cause his death.
P. Ws. Arz Muhammad and Nek Muhammad were found to have suffered the following injuries : ‑
"Arz Muhammad.‑A lacerated wound 2 " x " x deep to bone oblique in direction from above downwards over right forehead. Injury was simple in nature and appeared to have been caused by the discharge of a firearm. Probable duration of injury was about within 24 hours".
"Nek Muhammad. ‑‑-Injury No. l.‑A lacerated wound " x 1/3" x deep bone situated in the region of lower thorasic vertebrae.
No. 2.‑A lacerated wound " x 1/3" x deep to muscle situated in the back of lower chest.
No. 3.‑A lacerated wound " x " x 1" x deep in upper outer glutal region.
No. 4.‑A lacerated wound "x " x deep to muscle over medial part of left scapula.
No. 5.‑‑A lacerated wound "x " x deep to muscle situated on the outer border of left scapula.
No. 6.‑A bruise 2 " x 2 " (blackish colour) over anterior axillary line.
No. 7.‑A lacerated wound "x 1/3" x 1 " deep to outer mid left arm.
No. 8.‑A lacerated wound " x " deep to muscle 1 " below the left nipple."
In the opinion of the doctor these injuries were caused by the discharge of a firearm. The injury suffered by Arz Muhammad was found to be simple in nature, while injuries 1, 3, 4, 5 and 8 on the person of Nek Muhammad as grievous the rest being simple out of which, in the opinion of doctor, injury No. 6 was caused by a fall on the ground.
The presence of these two P. Ws. at the Otak of Haji Yar Muhammad, where the offence is alleged to have taken place, is established from the details given in Mashirnama Exh. 20, as well as from the fact that the dead body of Ali Murad was also found there with blood splashed all over the floor. Furthermore several pellets were recovered from the walls and the wooden pillars of the Landhi. So far as point No. 3 is concerned the case of the prosecution, as set out in the First Information Report, was that on the day of the incident the deceased, Arz Muhammad, Nek Muhammad and complainant Ali Nawaz were sitting in the Otak of Haji Yar Muhammad when five persons entered thecourtyard armed with guns and hatchets and threw a challenge that they had come to avenge the murder of Wali Muhammad.
In their evidence before the Courts below the P. Ws. Confirmed the said version and consequently there is no difficulty in "holding" that five persons had committed the murder of Ali Murad and caused injuries to the two P. Ws. in furtherance of their common object.
7. Upon the evidence produced by the prosecution the learned Sessions Judge found no difficulty in holding the appellant guilty for the murder of Ali Murad and for having caused injuries to P. Ws. Arz Muhammad and Nek Muhammad. For his conclusions the learned Sessions Judge relied upon the fact that the; name of the appellant had been mentioned in the First Information Report ; that he had been identified by P. W. Ahmad Nawaz with the aid of a torch and in the light of a lamp which was burning is the Landhi that P. W. Ahmad Nawaz had known the appellant and that there was corroborative evidence of Haji Yar Muhammad to whom complainant Ahmad Nawaz had given the details of the incident. The learned Sessions Judge discounted the version of the appellant that he had been involved on account of enmity and that the First Information Report had been lodged after considerable delay. The learned Sessions Judge also believed that the appellant had the motive to commit the crime, but Mr. Muhammad Haleem, the learned Assistant Advocate‑General stated, and we feel quite rightly, that the motive in question had not been established by, the prosecution as no evidence was brought on record to con clusively prove that Wali Muhammad, who was murdered about 7‑8 years ago in the house of Khairal, was the cousin of the appellant.
8. It will have been noted that the learned Sessions Judge convicted the appellant mainly upon the evidence of complainant Ahmad Nawaz according to whom he had identified the appellant with the aid of a torch and in the light of the kerosene lamp which was burning in the Landhi at the time of incident. It is true that his evidence has been corroborated by Haji Yar Muhammad, but if we come to the conclusion that Ahmad Nawaz could not have possibly identified the appellant then Yar Muhammad's evidence would be of no avail. Therefore, in order to ensure whether Ahmad Nawaz could have identified the appellant we will proceed to scrutinise the prosecution evidence.
In the First Information Report of the incident Ahmad Nawaz had alleged that on the night of occurrence he and the P. Ws. saw some persons coming inside the Otak from the southern direction; that in the light of the torch, which he flashed at them, they found that they were five in number of whom he identified the appellant and co‑accused Bugro who were carrying guns, while the other three, whom they could not identify, were carrying hatchets ; that the accused challenged them to put out the torch as they had come to avenge the murder of Wali Muhammad ; that the appellant and Bugro then fired 5‑6 shots at them when he concealed himself under the cot ; that the shots struck Ali Murad, the deceased, Nek Muhammad and Arz Muhammad P. Ws., who fell down due to injuries ; that the accused then went out from the same entrance whence they had come and thereafter he informed the other persons about the incident before proceeding to village Mirpur to inform Haji Yar Muhammad P. W. about it.
In his examination‑in‑chief before the trial Court, complainant Ahmad Nawaz recalled the contents of the First Information Report and stated that the appellant and co‑accused Bugro fired 4 to 5 shots at him and the P. Ws. and that he had concealed himself under the cot. In cross‑examination he stated that Yar Muhammad P. W. was his uncle who, at the time of incident, had gone to see one Atta Muhammad his Zamindar. He further stated that the Landhi which was the scene of occurrence was open on the south, having no wall, and that the accused had also entered from the southern direction and fired at them from a distance of 2530 paces. He went on to state that at that time he was sitting on a cot which was lying by the northern wall of the Landhi while deceased Ali Murad was sitting to his south and was facing towards east. He lastly stated that at the time of incident a kerosene lamp was also burning in the Landhi whose glass was broken with gun fire and that after the accused asked him to put off the torch he did so and immediately hid under the cot.
So far as Arz Muhammad and Nek Muhammad P. Ws. are concerned they could not be believed upon the point of identity of the appellant as according to Nek Muhammad he had not identified any one of the accused either at the time of incident or thereafter in the identification test, while Arz Muhammad could not point out the accused in the trial Court as due to the gun shot injuries his eye‑sight had become weak. As against this, Arz Muhammad had stated before the committing Court that Dil Murad and co‑accused Bugro were not present in Court and further that he would not be able to say as to what weapons they were carrying at the time of incident. In order to explain away these two discrepant statements ; Arz Muhammad took up the position in the trial Court that due to gunshot injuries his eye sight had become weak, but there is no medical evidence on this point to support him. In any case this version of Arz Muhammad does not appear to be plausible as according to medical evidence he bad suffered one lacerated wound 2 " x 2 " deep to bone, oblique in direction from above downwards, over his right forehead which was simple in nature. Assuming however, that the injury in question could be said to have rendered his eye‑sight weak, even then it was not understandable how his left eye could be affect ed as admittedly he had suffered the injury on the right side of his forehead which, if at all, was bound to affect only the sight of his right eye. Furthermore it was not the case of Arz Muhammad that he was totally blind and was therefore, unable to identify the appellant and co‑accused Bugro in the committing Court when he was pointedly asked to do so.
9. After having discarded the evidence of Arz Muhammad and Nek Muhammad P. Ws. upon the question of identity of the appellant, complainant, Ahmad Nawaz remains to be the only witness on whose testimony the success of the prosecution case depends. Admittedly the night of the incident was dark and but for the alleged torch light and the light of the burning lamp the appellant and co‑accused Bugro could not have been identified. Thcrefore, the question arises whether complainant Ahmad Nawaz was at all present at the time of occurrence and if so whether he could have identified the appellant with the aid of torch and in the light of the kerosene lamp.
To begin with it may be mentioned that neither the kerosene lamp nor its glass which, according to the prosecution was shattered by gunfire, was produced before the Court although according to S. H. O., Abdul Wahab (Exh. 29) he had seen it but had not secured it. This explanation appears to be wholly unsatisfactory as Abdul Wahab, who described himself to be 47 years' old, was a sufficiently experienced officer, and therefore if he had really seen the alleged lamp and its shattered glass he would be expected to have secured it as under the circumstances this would be a corroborative piece of evidence of considerable value. Assuming, however, that the said story was true even then he appellant and co‑accused Bugro could not have been identified the light of the burning lamp (which would obviously be beyond the range of about 25 to 30 feet at the most) as according o the unanimous version of the prosecution witnesses the assailants had opened fire at them from a distance of 25 to 30 paces from the southern direction of the Landhi. For all these reasons this story will have to be discarded being of doubtful import.
10. We now advert to the evidence of complainant Ahmad Nawaz who remains to be the only prosecution witness. In the First Information Report he had alleged that at about 9 p. m. on the night of incident he and the P. Ws. were sitting in the Otak of Haji Yar Muhammad when they saw some persons coming inside the Otak from he southern direction ; that with the aid of his torch, which he flashed at then, they saw five persons out of whom they were able to identify the appellant and co -accused Bugro while the other three, who were carrying hatchets, could not be identified ; that the accused challenged him to put off his torch as they had come to avenge the murder of Wali Muhammad and that after he did so the appellant and Bugro fired 5‑6 shots at them and he concealed himself under a cot.
In his evidence before the trial Court he had stated that when the accused opened fire he was sitting on a cot lying by the northern wall of the Landhi while Ali Murad deceased was sitting on another cot towards his south. In this respect Ahmad Nawaz is supported by Tapedar Muhammad Panah (Exh. 4) and the sketch of wardat (Ehh. 5) which he had prepared at the instance of Ahmad Nawaz. As against this Arz Muhammad P. W. stated before the trial Court that when the accused opened fire deceased Ali Murad was sitting on a cot by the northern wall of the Landhi while Ahmad Nawaz was sitting to his east. It would be seen that in regard to the positions, in which the P. Ws. were sitting at the time of the incident, Ahmad Nawaz and P. W. Arz Muhammad have given different versions. However, the evidence of Ahmad Nawaz, at least in regard to his own position, should be given preference provided it found support from the circumstances appearing on record. For that purpose we would first like to refer to two documents (prepared at the instance of complainant Ahmad Nawaz) namely Mashirnama of Wardat Exh. 20 and the sketch of wardat (Exh. 5), the former having been prepared on the morning, following the night of incident and the latter about 31J ;years later on 25th June 1967. The Mashirnama in question shows that when the Investigating Officer reached the Wardat, he found the dead body of deceased on a cot lying along side the northern wall of the Landhi upon which, according to Ahmad Nawaz, the deceased was sitting at the time of incident while he himself is shown to have been sitting on a cot lying along the eastern wall of the Landhi. The Mashirnama further shows that at a distance of five paces from the cot of the deceased, towards south, was lying a wooden chair upon which Nek Muhammad P. W. was sitting while at a distance of two paces, from the feet‑side of the said cot P. W. Arz Muhammad was sitting on a wooden bench. As against this in the sketch of wardat (Exh. 5) deceased Ali Murad is shown to have been sitting at point `A', which is in between point `R' (describing the location of the cot along side the northern wall) and point `C' where Nek Muhammad P. W. is alleged to have been sitting at the time of incident. Point `B' (which describe tl‑e location of the cot along side the eastern wall of the Landhi) is the place where P. W. Arz Muhammad is alleged to have been sitting whip Ahmad Nawaz is shown to have been sitting at point `R' i. e. on the cot along the northern wall of the Landhi.
It will have been noted that the two versions contained in. these documents are materially different and the question arises as to which version should be preferred. As already pointed out, the Mashirnama of Wardat Exh. 20 was prepared on the morning following the night of the incident at the pointing out of com plainant Ahmad Nawaz while the sketch of Wardat was prepared at his instance 32 years on 25th June 1967. In this view there is no doubt that the version given in Mashirnatna Exh. 20 should be given preference as it was prepared soon after the incident when everything was fresh in the mind of complainant Ahmad Nawaz as against his version contained in sketch of Wardat Exh. 5, which was prepared 32 years later. Furthermore this version finds support from the evidence of P. Ws. Arz Muhammad and S. H. O., Abdul Wahab, the former having deposed that at the time of incident the deceased was sitting on a cot, lying along, side the northern wall of the Landid while Abdul Wahab stated that when he visited the Wardar he found the dead body of the deceased on the same cot upon which, according to Abmad Nawaz, he was sitting at the time of occurrence. In any case this version appears to be natural inasmuch as had the deceased died on a. cot, other than the one lying along the northern wall of the Landhi there would be no plausible reason for shifting his dead body to that cot after he died.
11. The question arises as to why complainant Ahmad Nawaa, should have departed from his earlier version contained in Mashirnama Exh. 20. The answer is not difficult to perceive in that had Ahmad Nawaz adhered to his earlier version it would be extremely difficult, if not impossible, to believe that from the cot, along side the eastern wall of the Landhi, where he was sitting, he would have identified the assailants with the aid of his torch. The reason for this conclusion would he that from the said position he could not have even seen the assailants much less to have them in his full view. Therefore, in order to ensure that his evidence should appear to be more plausible, he departed from his earlier version before the trial Court and stated that when the assailants opened fire he was sitting on the cot, along side the northern wall of the Landhi from which position, if his evidence was believed, the assailants would be clearly in his view so as to make it easier for…
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