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Petitioner: GHULAM HUSSAIN and 2 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Roshan Essani Title: GHULAM HUSSAIN and 2 others vs THE STATE Case No.: Criminal Appeal No,19 of 1997 Date of Judgment:1997-12-05 Reported As: 1998 P Cr. L J 779 Result: Appeal allowed
JUDGMENT
JUDGMENT ' The appellants Ghulam Hussain and Bachoo have been convicted by the learned 1st. Additional Sessions Judge, Hyderabad under section 302, P.P.C. And both of them have been awarded sentences of imprisonment for life and to pay fine of Rs,10,000 each and in case of non-payment of fine, both of them have to suffer further sentence of one year, while the appellant No,3 Saleem has been convicted under section 323, P.P.C. Read with section 337-A(1) and section 337-E(ii)(a), P.P.C. And to suffer sentence of one year and' fine of Rs,1,000 and in case of non-payment of fine to suffer R.I. For one month more, by the impugned judgment dated 25-2-1997 in Sessions Case No,199 of 1986. The appellants have challenged the impugned judgment, their convictions and sentences stated above, by this appeal. ' Briefly stated the facts as per F.I.R. No,35 of 1986 (Exh.41-A) lodged by the complainant Allah Bux son of Haji Ibrahim by caste Khadio (now said to be deceased). On 24-6-1996 at 21-00 hours at Bulri Shah Karim Police Station District Hyderabad are that on the date of the incident vis 24-6-1986 in the evening he and his cousin Esso son of Aroo were sitting in the Hotel of Haji Muhammad Ibrahim Soomro, situated at Ditta Wah Bus Stop, where the accused Ghulam Hussain, Bachoo, Saleem and Dabood all by caste Sama came there. Ghulam Hussain and Bachoo had knives in their hands and the accused Saleem and Dabood had Lathies and immediately on their arrival Saleem abusing said hold them and not to leave them, as Allah Bux has been visiting the house of our cousin Saleh Samoo and was Karo with his wife. On the instigation of Saleem, accused Ghulam Hussain and Bachoo with intention to kill both of them caused them knife blows and Saleem and Dabood also caused Lathi blows. They raised cries of murder and on their cries Photo son of Usman, Khamiso son of Haji Jummo and Sajjan son of Haji Dino all by caste Khadios came and
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seeing them the accused made the escape good. The F.I.R. Was registered under sections 307, 114, 34, 504 and 323, P.P.C. The complainant Allah Bux is said to have expired in Hospital on the next day on 25-6-1986, as such, the offence was converted into section 302, P.P.C. ' The appellants Nos. 1 and 2 were arrested by the police on the same day at 21-45 hours and knives were recovered from them vide Mashirnamas (Exh.21) and (Exh.22). The accused Saleem and Dabood were arrested on 25-6-1997 (Exh.23) and Lathis were recovered from both of them vide Mashirnamas (Exhs.41-E and 41-F). ' After usual investigation, the appellants and other co-accused namely Mooso and Muhammad Ali were also challned in the Sessions Court to face trial under sections 302, 307, 323, 504, 34, P.P.C. And the accused Mooso and Muhammad Ali under section 120-B read with section 302, P.P.C. ' The appellants and acquitted accused Dabood were charged under section 302/34, P.P.C. For causing murder of the complainant Allah Bux son of Haji Ibrahim and under sections 307, 323 and 34, P.P.C. For causing murderous assault on the P.W. Esso and under sections 504 and 34, P.P.C. For abusing. The accused Mooso and Muhammad Ali were charged under section 120-B read with section 302, P.P.C. ' The trial Court framed charge (Exh.5) against all the accused named above for respective charges, as stated above. The charge (Exh.5) shows that accused Mooso had expired during pendency of the trial. ' The trial Court proceeded with trial and prosecution examined P.Ws., eye-witnesses and injured Esso (Exh.15), Wali Muhammad (Exh.16) (on the point of criminal conspiracy), Khamiso (Exh.17) and Sajjan (Exh.18) as eyewitnesses, Mashir Muhammad Ishque (Exh.20) as Mashir of arrest of appellants Nos.1, 2 and 3 and acquitted accused Dabbot and recoveries of knives and Lathis from them respectively, dead body (Exh.24) Mashirnama of inquest report (Exh.25-A), Mashirnama of injuries on the person of appellants Nos.1 and 2 (Exh.25-B), S.-I.P. Hakim Ali (Exh.27), who produced police report (Exh.28) and Chemical Examination Report (Exh.29). P.W. Medical Officer Syed Kazim Raza Shah (Exh.30) who produced medical certificate of injured/complainant and P.W. Esso (Exhs.31 and 32) respectively. P.W. Dr. Anwar Hussain (Exh.38) who produced post-mortem report (Exh.39) and lastly P.W. Agha Nisar Ahmed Investigating Officer (Exh.41) who produced F.I.R. Lodged by complainant Allah Bux son of Haji Ibrahim (Exh.41-A). Mashirnama of injuries on the persons of complainant and P.W. Esso (Exh.41-B). Mashirnama of place of incident (Exh.41-C) and Mashimama of recoveries of Lathis from accused Dabood and Saleem (Exh.41-E and Exh.41-F) respectively. Mashirnama of arrest of co-accused Muhammad Ali and Mooso (Exh.41-G). F.I.R. Was lodged by the appellant Ghulam Hussain (Exh.41-H). ' The appellants in their statements under section 342, Cr.P.C. Denied the prosecution case and alleged recoveries, and claimed innocence. ' The appellant Ghulam Hussain in his statement under section 342, Cr.P.C. Has stated as under:-- "I and my brother accused Bachoo were taking tea in the Hotel of Ibrahim Soomro where deceased Allah Bux, Esso, Mooso, Umer and Shafi came and attacked me and my brother. Deceased Allah Bux and Shafi were armed with knives who caused us knife injuries whereby we fell down. On cries many people collected and there was fight wherein Allah Bux sustained injuries. I cannot say who caused injuries to Allah Bux. Myself and my brother went to Police Station Bulri Shah Karim and lodged the report, which has been produced at Exh.44/H. I was arrested by the police alongwith Bachoo and then my case was spoiled by police. I filed direct complaint which was dismissed against which I filed a Revision which was allowed and the matter wasd remanded and the case file has been hushed up. I produce photo copy of the direct complaint and attested copy of the revision petition and the order passed by the Sessions Court at Exh.44-A to Exh.44-C. I too filed my written statement Exh.44-D."
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' The learned trial Court by the impugned judgment has convicted the appellants as stated above and has acquitted the co-accused Muhammad Ali and Dawood. ' I have heard Mr. Syed Madadally Shah, learned counsel for the appellants and Mr. Ghulam Nabi Soomro, learned Additional Advocate-General for the State, I have also gone through the impugned judgment, evidence on the record and other material available in the paper book. ' The learned trial Court while convicting the appellants has relied upon the prosecution evidence as under:- (i) Motive (ii) Medical evidence. (iii) Ocular evidence. (iv) Circumstantial evidence. ' Mr. Syed Madadally Shah, learned counsel for the appellants in support of the appeal has made the following submissions:-- (1) That there is controversy of actual death of complainant and the prosecution is silent of his death and the discrepancy has not been clarified by the prosecution as such, death of the complainant has been shrouded with mystery and such discrepancy has damaged the entire prosecution case and made it doubtful. (2) That the alleged Ocular evidence produced by the prosecution consists of interested and partisan witnesses, who are closely related to the alleged deceased and their evidence required independent and strong corroboration, which is lacking in this case. (3) That P.Ws. Khamiso and Sajjan were chance witnesses, who as per F.I.R. Had not witnessed the incident and their evidence inspiring no confidence, was otherwise, not reliable and required independent corroboration, which has not been furnished by the prosecution. (4) That the alleged incident had taken place in the hotel and despite availability of independent and disinterested witnesses, not a single independent witness has been examined by the prosecution, which has rendered the entire prosecution case as doubtful. (5) That there being controversy and discrepancy of the identity of the deceased, the medical evidence is of no help to the prosecution case. In any case, medical evidence, neither is corroborative piece of evidence nor it has corroborated to the ocular evidence. (6) That the P.W. Esso, Sajan and Khamiso have suppressed the injuries on the persons of the appellants Nos.1 and 2, as such, they were not truthful witnesses and their evidence was not of any credence and inspiring confidence and to be ruled out of consideration. (7) That the prosecution having failed to prove as to whose blow proved fatal and caused the death of the deceased and such benefit of doubt is to be extended to the appellants. (8) That there was counter-version as per F.I.R. Lodged by the appellant Ghulam Hussain but neither the prosecution came with clean hands regarding counter-version nor the learned trial Court considered as to which party was the actual aggressor, which has caused serious prejudice to the case of the appellants. (9) That motive set up by the prosecution was not proved, which was too weak, flimsy, unreliable and not convincing for the alleged incident and was otherwise very weak piece of evidence, which did not furnish any corroboration to prosecution case but as completely destroyed it. (10) That negative finding of trial Court on the point of Criminal conspiracy has damaged the motive set up by the prosecution and has adversely affected the case of prosecution. (11) That the alleged recoveries from the appellants have not been proved by the prosecution and there being delay of about a month in despatching the alleged knives, no reliance could be placed on the Report of Chemical Examiner. (12) That the prosecution has not proved its case against the appellants beyond any reasonable doubt and the appellants being innocent or entitled to acquittal.
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' In support of the above arguments, the learned counsel has relied upon the following decisions:-- (1) 1992 SCMR 96, (2) PLD 1963 SC 17, (3) 1992 PCr.LJ 1320, (4) 1995 PCr.LJ 1302, (5) 1994 SCMR 1928, (6) 1987 PCr.LJ 659, (7) 1981 SCMR 795, (8) 1995 SCMR 1715, (9) 1985 PCr.LJ 2132, (10) 1997 SCMR 385, (11) 1997 SCMR 1076, (12) 1995 SCMR 599, (13) 1996 SCMR 308, (14) 1972 SCMR 144, (15) 1980 SCMR 708, (16) PLD 1989 Kar. 293, (17) 1996 SCMR 167, (18) 1971 SCMR 432, (19) 1997 SCMR 290, (20) 1980 SCMR 225, (21) 1977 SCMR 611, (22) 1995 SCMR 1373, (23) 1969 SCMR 777, (24) 1990 PCr.LJ 470, (25) 1997 PCr.LJ 459 and 690, (26) 1979 SCMR 1011, (27) 1995 SCMR 1293, (28) 1997 MLD 997, (29) PLD 1963 SC 152, (30) PLD 1965 Quetta 33, (31) 1990 PCr.LJ 506, (32) 1996 PCr.LJ 1833, (33) 1985 SCMR 1715, (34) 1972 SCMR 264. ' Mr. Ghulam Nabi Soomro, learned Additional Advocate-General supporting the impugned judgment and the conviction of the appellants has' submitted:-- (1) That the names of the appellants appear in the F.I.R. And respective roles have been assigned to each of them. (2) That mere relationship of P. Ws. Esso, Sajan and Khamiso with the complainant will not discard their evidence, who were the natural witnesses. (3) That there is no controversy regarding the death of the complainant and that this point was not raised during trial but has been taken for the first time in appeal. In any case possibility is that the father of the complainant may have two names and he may be called by name of Haji Allah Dino in the village. (4) That people in village avoid to become witnesses for personal reasons as such, omission on the part of Investigating Officer not to cite disinterested witnesses will not be fatal to the prosecution case. (5) That recoveries have been proved against the appellants and minor discrepancies in the recovery evidence and delay in despatch to chemical examiner will not vitiate the recoveries. (6) That motive has been proved and in any case, even if motive is not proved, the ocular evidence having been proved motive will be immaterial. (7) That though there may be a counter-version but it will not effect the prosecution case. (8) That there is sufficient corroboration by the evidence of recoveries and medical evidence, supporting the prosecution case as such, appeal merits dismissal. ' I have heard the respective contentions of the learned counsel for the appellants as well as the State counsel. I have also gone through the entire evidence on the record. Before considering the submissions of the learned counsel, I would like to discuss relevant evidence on the record. ' The P.W. Esso (Exh.15) who is eye-witness of the alleged incident has stated in evidence that on the date of the incident at about 8-00 p.m. He and Allah Bux were sitting at the hotel of Haji Ibrahim Soomro, situated near Ditta Wah Town. The appellants and Dawood were sitting at the hotel. The appellants Ghulam Hussain and Bachoo were having knives in their hands while appellant Salim had Lathi in his hand and Dawood was empty handed. Appellant Salim instigated the other accused not to spare the complainant as he was Karo with the wife of Saleh Sammu. On his instigation appellants Ghulam Hussain and Bachoo caused knives blows to the complainant, accused Salim and Dawood caused him Lathi blows. They raised cries and on their cries P.Ws. Photo, Khamiso and Sajan came running raising Hakals and seeing them the accused went away. The P. Ws. Sajan, Photo and Khamiso took him and Allah Bux to Police Station Bulri Shah Karim, S.H.O. Saw the place of incident and thereafter, he registered the case on the complaint of Allah Bux. ' in cross-examination he admitted that the deceased Allah Bux was his cousin. He also admitted that he alongwith complainant Allah Bux were sitting at the hotel of Haji Ibrahim Soomro from 7-00 p.m. None else was present at the hotel except they two and owner of the hotel. He further admitted that accused Bachoo, Dawood, Salim and Ghulam Hussain were also present, but he did not know as to how many persons were sitting in other hotels. He stated that the incident took
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place at about 8-00 p.m. After about one hour after they reached the hotel. He denied the suggestion that Allah Bux deceased and Shafi were armed with knives and they caused injuries to accused Ghulam Hussain and Bachoo. He denied any knowledge that accused Ghulam Hussain had lodged any F.I.R. ' P.W. Photo was not examined and evidence of P.Ws. Khamiso and Sajan is that on cries of murder murder, they went to the hotel, where they saw appellants Ghulam Hussain and Bachoo causing injuries to Allah Bux with knives and Salim and Dawood with Lathis. Thereafter, the accused went away. P.W. Khamiso admitted that his father Haji Jummu was the cousin of Haji Ibrahim, father of Allah Bux. He stated that there may be 20-25 persons present at the hotel at the time of incident. He denied to have seen any injuries on the person of accused Ghulam Hussain and Bachoo. He admitted that the police arrived at the place of incident and after that F.I.R. Was registered. ' P.W. Sajan stated that 1-2 persons were present in the hotel at the time of incident. Owner of the hotel was absent. He stated that his mother was the Phuphi of P.W. Esso. ' P.W. Muhammad Ishaque Exh.20 is the Mashir of arrest of the appellants and recoveries. Besides he is common Mashir of inquest report, Mashirnama of injuries of appellants Nos.1 and 2, dead body etc. He admits to be cousin of Allah Bux. He admits that he had seen the knives in the hands of accused when they were arrested by the police at Ditta Wah. He admitted his signature on the Mashirnama of injuries of appellants Nos.1 and 2 but denied in cross-examination that he could not say if they had injuries on their persons. ' P.W. Agha Nisar Ahmed (Exh.41) is the Investigating Officer, who admitted in cross-examination that the accused Ghulam Hussain had lodged ' P.W. Syed Kazim Raza Shah (Exh.30) is the Medical Officer who examined Allah Bux son of Haji Ibrahim on 24-6-1986 and found the following injuries on his person:-- (i) Stab wound 1-5 c.m. x .5 c.m. x 5 c.m. At the verterbra column 6 c.m. Below the root of the back of the neck. (ii) Stab wound 1.5 c.m. x .5 c.m. x 1 c.m. At the right side of front of the neck near right sternocloudo mastoid muscle. (iii) Stab wound 1.5 c.m. x .5 c.m. x .5 c.m. At the left scapula region.. (iv) Stab wound 2 c.m. x .5 c.m. x .3 c.m. At the left shoulder joint. ' He also examined P.W. Esso on the same day found the following injuries:-- (i) Lacerated wound 3.5 c.m x 5 c.m. x zig zag partially scalp deep at the left parieto occipital region of skull. (ii) Lacerated wound 1.2 c.m. x .2 c.m. x .2 c.m. x skin deep with swelling at left eye brow. (iii) Abrasion on the right dorsom of hand near right thumb. ' P.W. Dr. Anwar Hussain (Exh.38) conducted post-mortem of Allah Bux son of Allah Dino on 25-6- 1986 and described the following injuries on his person:-- (i) There was incised wound above the medical part of left clavical at right side of the neck above downwards 4 c.m. x 3 c.m. x cavity deep. (ii) Stitched incised wound on posterior part of the shoulder 4 c.Ms. (iii) Stitched incised wound on lateral part of the left scapula, 3 c.m. On removal of the stitched wound air bubbles with blood seen coming from the wound. (iv) Stitched incised wound on back of the neck at mid line of second and third vertila size 3 cms. On removal of the stitch blood seen coming from wound. ' The Medical Officer in cross-examination stated that the word appearing below the parentage of the deceased was in different ink and hand writing and was not written by him. ' F.I.R. And he produced F.I.R. As (Exh.41-H). He also admitted the place of incident was in busy place. ' I will take up first ground of controversy of the death of the complainant.
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' The charge (Exh.5) against the appellants Nos.1 and 2 is that they caused murder of complainant Allah Bux son of Haji Ibrahim. Admittedly F.I.R. Was lodged by the complainant Allah Bux son of Haji Ibrahim and not by Allah Bux son of Haji Allah Dino. ' The prosecution case is that complainant Allah Bux son of Haji Ibrahim had died on 25-6-1986, but evidence of Medical Officer Anwar Hussain (Exh.38) shows that on 25-6-1986 A.S.-I. Hakim All had produced dead body of Allah Bux son of Allah Dino. On a question put to him in cross-examination, he replied that the word appearing below parentage of the deceased is in different ink and handwriting and is not written by him. The post-mortem report (Exh.39) produced by the Medical Officer also shows the name of the deceased as Allah Bux son of Haji Allah Dino, whereas the Medical Officer Syed Kazim Raza (Exh.30) had deposed that he had examined injured Allah Bux son of Haji Ibrahim on 24-6-1986 and Medical Certificate (Exh.31) also shows the name of injured as Allah Bux son of Haji Ibrahim. The Mashirnama of injuries (Exh.41-B) shows the injured as complainant Allah Bux son of Haji Allah Deno. Besides the Mashirnama ('Exh.24) which is the Mashirnama of the dead body also bears the name of father as Haji Allah Deno. Mashirnama (Exh.25-A) and (Exh.28) are also of the same nature. The prosecution has not resolved this discrepancy and mystery remains unsolved as to who was the real deceased. Whether the complainant Allah Bux son of Haji Ibrahim has actually dies as a result of the alleged injuries is not certain from the conflicting evidence on the report. The learned trial Court has also not taken into consideration this important aspect of the case which is going to the root of the case. ' In the case of Yar Muhammad v. State reported in 1992 SCMR page 96 the Honourable Supreme Court of Pakistan has held that if there was any discrepancy in prosecution evidence or if the same required clarification or explanation then prosecution must explain and clarify the same failing which benefit would go to the accused. ' In Sikandar v. State PLD 1963 SC page 17. It was held that if there is a choice between doubting of the statement of eye-witnesses and that of Investigating Officer the benefit of doubt thus occurring should go to the accused. Similar view has been held in Rashid Ali Khan and another v. The State 1992 PCr.LJ page 1320. The prosecution witnesses have also not clarified this position and no witness has said anywhere that the complainant Allah Bux was the son of Allah d Deno. ' Considering the case law and the relevant evidence on record it cannot be definitely said as to whether the complainant Allah Bux son of Haji Ibrahim and the deceased Allah Bux son of Allah Deno are one and the same person. ' The prosecution has also not proved the charge Exh.5 to show that the appellants had murdered Allah Bux son of Haji Ibrahim. ' I, therefore, hold that the prosecution has failed to establish that deceased was no one else but the complainant. Such fact remains in mystery, as such, the charge against the appellants that they murdered the complainant Allah Bux son of Haji Ibrahim does not stand proved. ' The learned Additional Advocate-General while arguing on this aspect of the case stressed that no such plea was taken by the appellants in the trial Court and such controversy has been raised in this Court in appeal for the first time. He further stressed that the father of the Allah Bux may have two names and he may be called by the name of Allah Dino in the village, as such, it was immaterial whether the name of father of complainant was Haji Ibrahim or Haji Allah Dino. I am afraid, I do not find myself in agreement with the stand taken by the learned Additional Advocate- General. The accused may take such plea in trial Court or not and even the accused may not take any defence at all, it is bounden duty of the prosecution to prove its case in all respects beyond any reasonable doubt. Weakness of defence is no ground for prosecution not to prove its case. The prosecution has to stand on its own legs.
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' In the case of Abdul Hameed v. State reported in 1995 PCr.LJ (Karachi) page 1302 which is D.B. Decision, this Court held that burden of proof is on prosecution and accused only is required to create doubt in the prosecution case and once he succeeds in doing so, he is entitled to benefit of doubt. The arguments of the learned Additional Advocate-General that the father of the deceased may have two names and he may be called by the name of Haji Allah Dino in the village has also no force and is based on presumption as in the entire prosecution evidence such fact has not been clarified nor it has been brought in evidence by the prosecution that Haji Ibrahim and Haji Allah Deno is one and the same person. ' It is also surprising that Medical Officer Dr. Anwer Hussain, who conducted the post-mortem in his evidence clearly stated that the A.S.-I. Hakim Ali had produced dead body of Allah Bux son of Haji Allah Dino and postmortem (Exh.39) also showed the name of the deceased as Allah Bux son of Haji Allah Dino. The medical officer in cross-examination stated that the word appearing below parentage of the deceased was in different ink and handwriting and was not written by him, but Public Prosecutor appearing for the State did not bother to get clarification of this fatal issue. Even the trial Court has not considered this important point while appreciating the prosecution evidence which shows that the trial court had not applied its judicial mind to the prosecution evidence. ' It is more surprising that the Mashirnamas (Exh.41-E), (Exh.24), (Exh.25-A) and (Exh.28) prepared by the police bear the controversial name of the father as Haji Allah Dino but the prosecution is silent and Public Prosecutor did not bother to get their controversy clarified through the concerned witnesses. The contentions of the learned State counsel have, therefore, no substance and are repealed. ' On the point of ocular evidence the learned Additional Advocate-General contended that there were eye-witnesses of the incident including the injured Esso, who have fully supported the prosecution case and the fact that they were closely related to the deceased/complainant will be immaterial. It is argued that the ocular evidence is fully corroborated by the medical evidence, motive and recoveries. On the other hand Mr. Syed Madad Ali Shah, learned counsel for the appellants submitted that the eye-witness may be one solitary injured Esso, remaining witnesses have not witnessed the incident and they could only be turmed as chance witnesses. It is admitted position that P.W. Esso is the cousin of the complainant, P.W. Khamiso's father is the cousin of the father of complainant Allah Bux and the mother of P.W. Sajjan is the Phuphi (father's sister) of P.W. Esso. In the F.I.R. (Exh.41-A), the complainant has clearly stated that P.Ws. Sajjan, Photo and Khamiso came to the place of incident after the incident was over, that means they did…
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