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Petitioner: IBRAHIM AND 4 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha Title: IBRAHIM AND 4 Others vs THE STATE Case No.: Criminal Appeal No. 32 of 1968 Date of Judgment:- Reported As: 1974 P Cr. L J 22 Result: Appeal accepted
JUDGMENT
JUDGMENT The five appellants Ibrahim' son of Morio, another Ibrahim SOIL of Sultan, Khamiso, Sultan and korio were tried jointly along with 7 other co-accused namely, Mitho, Sajjad Shah Mohomed, Yousuf, Piyaro, Obhaljo and Osman by the learned Additional Sessions Judge, Tharparkar at Sanghat for the murder of deceased Daim and causing simple and grievous hurts to Misri (P. W. 5), Mooso (P. W. 6), Isso (P. W. 7), Jumo (P. W. 8), Abdul (P. W. 9) and Mohomed A.I (P. W. 10) on 20th of May 1966 at about 4 p .m. At watercourse No. 6-L, Shahpur Distributory. The seven co-amused named above were acquitted by the trial Court while the appellants were all convicted. They were all convicted under section 304, P. P. C. And each. f them was sentenced to 5 years' R. 1. Additionally appellants Ibrahim con f Morio, another Ibrahim son of Sultan and Morio were also convicted rider section 323, P. P. C. And each of them was awarded sentence of one ear R. I. Their sentences were ordered to run concurrently. All the convicted said 5 appellants have now appealed against their convictions and, sentence, 2. The facts of the prosecution case as gleaned from the testimony of material P. Ws. Briefly are these. Deceased Daim was the father of Gul Hassan (P. W. 4), Isso (P. W. 7), Jumo (P. W. 8) Abdul (P. W. 9), Mohomed A.I (P. W. 10) and first informant Niamo (P. W. 1.2) are brothers inter se aed they are maternal uncles of P. W. Gul Hassan. Mooso (P. W. 6) is the nephew of informant Niamo while Misri (P. W. 5) is their hari since many years. They all live in village Sultan Bhanejo where the deceased also lived. Sister of Daim deceased is the wife of appellant Sultan. Khamiso appellant is cousin of the deceased. Appellant Morio, who is the father of Ibrahim appellant, is also related to the deceased. The five appellants also lived in the village of deceased Daim and other P. Ws. Mentioned above. The acquitted seven accused are not related to the five appellants except co---
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accused Yousuf who is married to the daughter of Sultan appellant. All these seven co-accused live in another village which is at a distance of about one mile from Sultan Bhanejo village. 3. Deceased Daim and appellant Khamiso along with two others jointly owned agricultural land 32 acres in area which-was watered by water--course No. 6-L, Shahpur Distributory which i; at a distance of about one mile from Sultan Bhanejo village. Before the present occurrence this land was leased out to one Hadi Bux by all the joint owners and the period of lease had expired in Kharif season some months before the occurrence. After the expiry of the term of lease, the land was privately partitioned between its joint owners and each sharer started cultivating his own portion of land. According to the prosecution on the day of occurrence which was a Friday the turn of water of the land c f deceased Daim from the said water course was to start at 4-15 p m. And was to last up to 7-30 p.m. Accordingly, the deceased, his son P. W. Gul Hassan and their part P. W. Misri went to their land at 4 P.m. To take their turn of water for the land. Their turn accord--ing to them, was to follow that of land of one Ishak Zamindar and his Kamdar (Manager) Nabi Bux (P. W. 11) allowed the deceased party to start taking water for their turn. According to prosecution, the turn of water for the appellant Khamiso's land was to follow the turn of water of deceased's land. It is further alleged that as soon as the deceased and P. Ws. Gul Hassan and Misri started taking water, all the appellants came running and asked the deceased and his companions as to why they had taken their turn of water, Deceased Daim is said to have replied that he was taking his own turn of water, Appellant Khamiso, who was armed with a hatchet, then dealt blows to the deceased Daim with his hatchets on his head. Thereafter, the remaining four appellants, who were armed with lathis, also gave blows to the deceased. While the five appellants, it is alleged, were striking Daim, the other seven acquitted co-accused also came there. Of them Piyaro and Obhaijo were armed. With hatchets while the rest of them carried lathis. Seeing these seven co-accused arrive P. W. Gul Hassan left the scene and ran back to his village. There he informed P.Ws. Muhammad A.I, Abdul, Mooso,. Isso and Jumo. Gul Hassan remained behind in the village and these five P. Ws went to the place of occurrence. The culprits gave injuries to P. W. Misri the hart, who had a spade with himself for diverting water. When the said five P. Ws. On the information given to them by P. W. Gul Hassan reached the scene of offence they saw Daim injured and lying unconscious and also said that P. W. Misri hats received injuries too. They saw all the 12 culprits mentioned above, according to them, at the scene variously/ grated and when they reached the place of occurrence they were all also caused injuries by these culprit. According to the` prosecution none from the complainant's side caused injuries to any of the appellants or their seven companions, the acquitted co-accused. The culprits then left the scene when Sumar (not examined) arrived at the spot. Due to the injuries P. Ws. Mooso and Adul had also fallen unconscious as the deceased. P. W. Misri there--after brought a bullock cart from the village and removed all the injured, including the deceased, in to the village. Niamo informant on that day had gone to Shahbaz Khan and returned to his own village at about 6 p.m. Where he learnt about the occurrence. He saw all the injured lying in their houses. P. W. Mohomed A.I injured informed him what he was told by P. W. Gul Hassan when he bad reached the village and also about the facts of occur--rence which were substantially the same as detailed above. Naimo then left for Police Station Shahpur Chakar which was about 6 miles away and having reached there lodged his F. 1. R. Exh. 21 at 9-30 p.m. 4. The report was registered by A. S. I. Mumtaz Ahmad (P. W. 14) who was incharge of the police station then. Some--tine thereafter injured Daim, Mooso, Adul, Jumo and Muhammad A.I were brought to the police station and a mashirnama of their injuries Exh. 37 was prepared by the A.S.I. In presence of mashirs Sidiq and Sher Mohomed. Daim and Moosa were unconscious. The A. S. I. After recording the statements of all those out of the injured who were in senses sent them all to the hospital for treatment. On the next day the A. S. I. Went to the place of occurrence and inspected it in presence of mashirs Allahdino (P. W. 13) and Mohomed Sumar. He found blood at three places
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near the watercourse No. 6-L and took into his possession the stained earth. He prepared a mashirnama of the scene Exh. 23 in presence of the said mashirs who duly attested it. The A. S. I. Then prepared the mashirnama regarding the injuries of P. W. Misri, who appears to have brought to him there, which is produced as Exh. 24 and sent this injured to the hospital for treatment etc. Statements of P4 W. Gul Hassan and other P. Ws. Were then recorded, The A. S. I. Thereafter arrested appellant Morio who produced a laths and spade which were taken into possession as per mashirnama Exh. 25. House of appellants Sultan and Ibrahim was starched by A. S. I. In their absence and he recovered a lathi as per mashirnama Exh. 26. The house of appellant Khamiso was also searched in his absence an a hatchet was recovered as per mashirnama Exh. 27. The A. S. I. Then handed over the papers of investigation to the S. H. O. He had in the meanwhile released appellant Morio on bail as the F. I. R. Lodged by Niamo was registered for bailable offences, namely, under sections 148, 323, 324/114, P. P. C. The A. S. I. Had found appellants Morio and Khamiso injured so he prepared mashirnama of their injuries which he produced as Exhs. 38 and 39, respectively. He also recorded the counter F. I. R. Lodged by appellant Khamiso at 9-45 p.m. The same night when he had recorded the F. I. R. Of Niamo informant in this case. The counter F. I. R. Has been produced as Exh. 40. Beth injured appellants had also been sent for medical treatment. The counter F. I. R. Of appellant Khamiso reads as found :- "I have got land in deh Sarori at watercourse No. 6-L, Shahpur Chakar minor and according to the Government share list the turn of water, is 7 and half hours on Friday from 4-15 p.m. To 11-45 'p.m. In. Order to take the turn of water I along with my hari Moro Bhaojo went to the water course at about 4 p.m. I, had to take water from Ishak Bhanejo. I went and turned the water when Muhammad A.I son of Samoon, Jumo and Niamo son of Ha Daim son of Gul Hassan armed with hatchets, Isso son of Samoon, Abdul son of Haji Dosso, Mohomed son of Jumo, Bhaojo and Misri son of Kaisaryo Bheel resident of Sultan Bhaenjo, Bukhshish son of Shadi, Kadir Dino SOD of Noora, A.I Mohomed son of Hakim, Allam son of Hakim Bhaojo resident of Shadi Shadi of Bbaojo armed with hatchets came there. Mohomed A.I told me as to why I had turned the water as it was their turn of water. I told them that their turn of water is after my turn of water. On my saying so Mohomed A.I gave me sharp sided hatchet blow and Mooso, Isso gave lathi blows on my shoulders, as the result of which I fell down. Morio intervened to rescue me. Mohomed A.I also inflicted him sharp sided hatchet blow. Isso and others also inflicted him lathi blows. We raised cries. On our cries Usman, Sajan, Bhaojo came running. They got us released. Mohomed A.I turned the water to his land and went lo his land. Other accused persons went towards village. Morio brought Sultan Bhaojo. I narrated him the above facts. He has brought me here to lodge report: I have got no share list, but it is with Soomar and Ishak Bhanejo. I lodge complaint. Investigation be made. Read over, admitted correct and affixed his L. T. I. Thereon. L. T. I. Complainant Khamiso." 5. This counter F. I. R. It will be seen makes the complainant party in this case responsible for causing injuries to appellants Khamiso and Morio as according to this F. I. R. It was the turn of water for appellant Khamiso and complainant party, as described by him, had forcibly taken their turn of I water for the land and caused injuries to them. As is usual in such counter cases, it will be noticed that this F. I. R. Of the appellant does not say that they caused injuries to complainant party, including I the deceased Daim. 6. On 23-5-1966 the S.H. O. Shahpur Chakar Police Station Mansubdar (p. W. 15) took over investigation of the case from A. S. I. P. W. Mumtaz Ahmad. The S. H. O. Went to the place of occurrence and verified the investigation already conducted by the A. S. I. On that date he arrested the acquitted co-accused Mitho, Sajjan and Osman as per mashirnama Exh. 29. Osman produced a lathi-which was secured as per mashirnama Exh. 30. Then he arrested other acquitted co- accused who also produced weapons but none of the weapons produced by any of them or,
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appellants was found blood--stained. On 28-5-1966 the S. H. O. Arrested appellants Khamiso and Morio from Civil Hospital, Sanghar where they were under treatment for injuries mashirnama of which he prepared in presence of mashirs Saghir Hussain and Muhammad Saleh which has been produced as Exh. 42. The same day S. H. O. Also arrested appellant Ibrahim son of Morio. Appellants Sultan and his sons Ibrahim had already been granted bail before arrest by Sessions Court. It might be mentioned here that deceased Daim died in the hospital on 22-5-1966 at 6-30 p.m. Obviously then the S. H, O: must have changed the sections in the F. I. R. Of this case into those falling under section 302 read with section 149 P.P. C, etc. After completing the investigation of this case he challaned the appellants end acquitted co-accused on 3-7-1966 in a Court of law. The case registered on the counter complaint of appellant Khamiso was disposed of under `B--- summary. 7. In due course of time the appellants and the said co-accused were committed to the Court of Session where they took their trial before the said Additional Sessions Judge with the result already mentioned above Hence this appeal. 8. The appellants when questioned at the trial under Section 342, Cr.P.C professed innocence and denied the version of incident as put forward b the prosecution. 9. Appellant Ibrahim son, of Morio besides denying prosecution allegation about the commission of offences charged with stated that the P. Ws. Had falsely deposed against him due to enmity. 10. Appellant Ibrahim son of Sultan also followed suit and he toy stated that the P. Ws. Gave false evidence against him due to enmity. 11. Appellant Khamiso in reply to, the question as to why the P. Ws deposed against him replied as under:- "The turn of water was mine and I and Morio accused who is my hari had gone to the watercourse to take water. When we had diverted the water to our land, Daim deceased and all the P. Ws. Came there and they forcibly wanted to take the water. When I protested, they abused me and attacked me and Daim deceased caused me injuries with the laths and therefore, I caused him injuries in exercise of my right of self-defence," "I am innocent. I had lodged report of the occurrence of injuries caused to me and Morio key the deceased and the P. Ws. But the police did not take any action due to the influence of Hasan Khan Sanjrani." 12. Appellant Sultan denied that polio had secured a laths from his house. As regards the question as to why the P. Ws. Deposed against him he replied that they did so falsely due to enmity against him. 13. Appellant Morio gave the version of the incident as follows in answer to one of the questions:- "The turn of water was of Khamiso accused and he and I had gone to the watercourse to take water. When we had diverted the water to our land, Daim deceased and all the P. Ws. Came there and they forcibly wanted to take the water. When we protested, they abused us and attacked us. I did not cause injury to Daim or any P. Ws." 14. None of the appellants led any evidence in defence 15. There can be no manner of doubt that on the side of the com--plainant party deceased Daim was killed and six P. Ws. i.e. Misri, Mooso, Isso, Jumo, Adul and Muhammad A.I sustained hurts and on the side of appellants two of them namely, Khamiso and Morio were injured. 16. The evidence of Dr. Baghchand who conducted the post-mortem examination on the dead body of the deceased after medically treating him for some days when he died in the hospital and also examined all the injured P. Ws. As well as injured two appellants aforesaid. 17. The doctor in his deposition in the committal Court which was transferred to the record of the trial Court as Exh. 44 states that on 21-5-1966 be received Daim in his hospital from the police and he was unconscious. The doctor found the following 6 external injuries on his person:---
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"(1) One contused wound Y shape with lower limb measuring 2 -- ' x -- ' bone deep, right limb measuring -- x -- ' x skin deep Left limb -- ' x -- ' x skin deep over the right occipital region, suspected fracture of occipital bone. (2) Contused wound 1 --x -- ' skin deep on right side of frontal region of scalp. (3) Contused wound 1' x -- ' x skin deep J' to the left of injury No. 2. (4) An incised wound 2' x -- ' x skin deep on upper lid of right eye. (5) An incised wound 2 -- ' x -- ' x muscle deep on the palm of right hand, in horizontal direction. (6) Swelling 3' x 3' on the right side of the forehead. 18. When Daim expired in the hospital this doctor conducted the post mortem examination of his body and found the following internal damage done to it:- "(1) Big haemotoma seen under the skull over fight frontal, right temporal, right parietal bone. (2) Fracture of right frontal bone at the middle. (3) Fracture of right temporal bone. (4) Separation of longitudinal suture about 5' long. (5) Extra dural haemotoma present on right frontal parietal temporal region. (6) Haemorrhage in brain with laceration of right frontal lobe of brain." 19. From the external and internal examination of the dead body of deceased Daim the doctor was of the opinion that the death of the deceased was due to shock; and haemorrhage as a result of the head injuries which were sufficient to cause death in the ordinary course of nature. It goes without saying that they were anti-mortem. 20. When the doctor examined P. W. Jumo he found the following 5 injuries on him:- "(I) Lacerated wound 3' x -- ' x scalp deep, on left side of frontal region of scalp. (2) Lacerated wound 2' x -- ' scalp deep on occipital region of scalp in right half (3) Contusion 8' x 1' on lower part of chest running obliquely. (4) Bruises 5' x 1 -- ' on the back of chest in upper, part running obliquely across both scapula: regions. (5) Bruise 4' x 2' on right scapular region." 21. The injuries were simple in nature and appeared to have been caused by some hard and blunt substance such as laths, or side of hatchet. 22. On the examination of P. W. Muso the doctor found that he had the following four injuries on his person:- ---(1) Contused wound 3' x -- ' x bone deep on right frontal parietal region of scalp, (2) Contused wound 2' x -- ' x bone deep on the right side of occipital region of scalp. (3) An incised wound 1' x -- ' x skin deep on the left thigh. (4) Contusion 4' x 1` on right side of front of chest." 22-A. In the opinion of the doctor these injuries except No. 3 were caused by some hard blunt substance such as a lathi or back side of hatchet and No. 3 was caused by some sharp cutting weapon. 23. On the person of P.W. Mohomed A.I the doctor noticed the following 5 injuries on his examination:- (1) Contused wound 3' x -- ' x skin deep on the left side of frontal region of scalp. (2) Bruise 5' x 1' on the lower part of the back of left side chest. (3) Bruise 4' x 5' on lower part of the back of right side chest. (4) Bruise 3' x -- ' on right scapular region. (5). Bruise 2 -- ' x 2' on left upper arm on lateral side." 24. The doctor opined that the above injuries were simple in nature and were caused by some hard blunt substance such as a lathi or back side of hatchet. 25. On the person of -P. W. Misri the following two injuries were detected by the doctor
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"(1) Contusion 4' x 1' on lateral side of upper part of left upper arm. (2) Contusion 2' x 1' oh middle of right forearm. Both these injuries were simple and were caused by some hard blunt substance such as a lathi. 26. P. W. Adul had the following 10 injuries on his person which the doctor noticed on his examination:-- "(1) Contused wound 2' x -- ' x scalp deep on right parietal region of scalp. (2) Contused wound 2 -- ' x -- ' x skin deep on left parietal region of scalp. (3) Swelling on the back of right hand. (4) Contusion 5' x 1' on lower part of right side chest on the back. (5) Bruise 5' x 1' on lower part of left side of the back of chest. (6) Bruise 1 -- ' x 1 on left shoulder. 7. Bruise 2' x 2' on right scapular region. (8) Contused wound 1 -- ' x -- ' skin deep on right side of scalp over frontal region. (9) Facial palsy right side. (10) Bleeding from right ear and nose, suspected fracture of base skull. All the above injuries were simple according to the doctor except Nos. 9 and 10 which were grievous and the injuries appeared to have been caused by some hard blunt substance such as a lathi or back side of hatchet. 27. The doctor also stated that the injuries on persons of P. Ws. Muso and Adul would have taken more than 3 weeks for complete recovery and the injuries on the other injured would take less than 20 days to cure. 28. This doctor Bhagchand teas also examined by the trial Court as Court witness No. 1 as he had omitted to mention the injuries of too of the appellants Khamiso and Morio. 29. At the trial he deposed that on the examination of appellant Morio he found the following 3 injuries on his person. "(1) Contused wound 1 -- ' x -- ' x scalp deep on left parietal region of scalp. (2) Contused wound 2--- x -- ' x scalp deep on left parietal region of scalp. (3) Swelling on back of right hand. All these injuries according to the doctor, were simple and were caused by bard blunt substance. 30. On the examination of appellant Khamiso be noticed the following 3 injuries on him:- (1) Contused wound 2' x -- ' x skin deep on left parietal region of scalp. (2) Bruise 3 -- ' x 1' on right shoulder. (3) Abrasion 2' x 1' on back of left shoulder." All the above injuries appeared simple in nature and appeared to have been caused by some hard blurt substance. The doctor also stated that both the injured appellants had remained indoor patients in the hospital and their injuries would have healed up within a week. 31. Thus, it will be seen that the prosecution case itself is that Daim deceased was killed on the side of the complainant party and also 6 P. Ws. Aforesaid were injured on their side while on the other side of appellants two of them sustained injuries as mentioned in the-evidence of doctor Bbagchand. 32. The prosecution case rests solely upon the evidence of the 7 eye--witnesses, namely, P. Ws. Gul Hassan, Misri, Mooso, Isso, Jumo, Adul and Mohomed A.I as corroborated by the complainant Niamo and there is no corroborative evidence having been found from the appellants because all their weapons, some of which they produced and the others were secured on search of their houses in their absence, were not found to be blood-stained. The only factor that the prosecution can put forward in support of the story of the incident as advanced by the 7 eye-witnesses is that six out of them i.e. Except Gul Hassan have injuries on their person. But as will be soon discussed hereafter this fact also by itself is of no avail to the prosecu--petition. It is necessary to say that on
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the evidence of these very same 7 eye--witnesses 7 other co-accused already named above, who were tried jointly along with the appellants, have been acquitted by the learned trial Court by giving them the benefit of doubt as it held in its judgment that their presence at the scene of occurrence and participation in the crime was doubt--full. When this is the position of evidence arising for assessm ent in appeal the rule of prudence clearly is that the same evidence ought not to be relied upon which has been disbelieved by the lower Court, in respect of those persons, i.e. The appellants in this case, who have been convicted by the same Court. This rule of prudence is accepted to be a principle of appreciation of evidence in the case of Mohomed and another v. The Crown (PLD 1964 FC 84) in which their Lordships observed as under:-- "where for an offence of murder, the evidence of the prosecution witnesses is wholly rejected as unreliable so far as most of the accused are concerned, it is not safe to rely upon the evidence of the same witnesses, for the purpose of convicting the remaining accused in the case for that offence in the absence of any confirmatory circumstance." This-decision of the Federal Court clearly shows that in the instant case confirmatory circumstances lending support to the ocular evidence in the case has to be looked for in order to sustain the conviction of the appellants. That this further corroboration to the ocular evidence should be looked for/ In this case is also made necessary by the fact that the parties in this case, as will be shown from the evidence, are' on inimical terms with each other. 33. P. W. Mooso in his cross-examination has been confronted with his evidence in the committal Court where he said that Sultan appellant had purchased land from one Farooq of Karachi and that it was in possession of Niamo complainant, in this case, whom Sultan evicted two months prior to this occurrence. He has further said in his cross-examination as under; "We are not on visiting terms with Sultan accused since a long time and we do not go to each other even on ceremonial occasions. We bad not even attended the feast given by Sultan accused to our Murshid some months before the occurrence. We had complained to our Murshid that Sultan would not give his daughter in marriage to my uncle Isso. He got his daughter married to Yousuf accused." 34. Yousuf accused refereed to just above is one of the co-accused at the trial who has been acquitted. On this point P. W. Isso made the following admissions in his cross-examination:- "It is correct that Sultan accused had made applications against my brother Niamo as the result of which he was declared history sheeter at the police station. It is also correct that we are against Sultan ac--cused on account of several reasons. I had…
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