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Petitioner: BASHIR AND 2 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ghous Ali Shah, Muhammad Zahoor-ul-Haq Title: BASHIR AND 2 Others vs THE STATE Case No.: Criminal Appeal No. 62 and Confirmation Case No. 62 of 1979 Date of Judgment:1980-06-03 Reported As: 1981 P Cr. L J 403 Result: Order accordingly
JUDGMENT
JUDGMENT MLHAMMAD ZAHOORUL HAQ, J.----This is a case for confirmation of death sentence awarded to appellant Bashir under section 302, P. P. C. By the Sessions Judge, Badin by his judgment dated 25th February, 1977 and direction to pay a compensation of Rs. 5.,000 to heirs of deceased Noor and Anwar or in default to suffer R. I. For 6 months. By the same judg--ment the appellant Nazeer was also convicted under section 302, P. P. C. And sentenced to suffer life imprisonment and he was further found guilty under section 324, P. P. C. And sentenced to suffer R. I. For three years. He was further directed under section 544-A of Cr. P. C. To pay a com--pensation of Rs. 5,000 out of which Rs. 4,C00 was to be paid to heirs of deceased Sultan and Rs. 1,000 to P. W. Noor Ahmed or in default to suffer further R. I. For 6 months. Sentences were to run concurrently. The appellant Manzoor was also convicted under section 323, P. P. C. And sentenced to suffer R. I. For one year and ordered to pay a fine of Rs. 500 as compensation under section 544-A of Cr. P. Code to heirs of deceased Anwar or in default to suffer R. I. For 2 months. Three co-accused namely Boota, Saddiq and Yakoob were acquitted by the same judgment and no acquittal appeal has been filed against the said acquittal. This judgment will dispose of the case for confirmation of death sentence upon Bashir, the appeals of Bashir, Nazeer and Manzoor against their convictions under sections 302, 324 and 323, P. P. C. And also the Criminal Appeal No. 119/79 filed by Bashir, against his conviction and sentence of 6 months under section 19-E of Arms Ordinance as the facts of the same would be covered in the main appeal. The relevant facts in respect of Confirmation Case 15/79 and Criminal Appeal No. 62/79 are mentioned in F. I. R. Exh. 10 filed on 9th July, 1976 at 1800 hours by P. W. 1 Noor Mohamed s/o Saeed Mohamed Police Post Girari,
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which was later on transcribed in 154, Cr. P. C. Register of P. S. Golarchi on 10th July, 1976 and is Exh. 10. The same reads as follows:- "It is complained that I am a zamindar I and my brother Anwar own 32 acres of land out of which there are Juwar cultivation in 3 acres and paddy and sugar-cane cultivation in remaining land. Today morning I and my brother Anwar were at our house at 10 a. m. I came out, cattle of Bashir son of Channan Din Arain and others were eating my Juwar crop. Then I and my brother Anwar both went there and drove out the cattle to village side for going to cattle pound. When we reached in the ploughed land of Anwar one acre from my land then came Manzoor, Boota, and Mohamed Siddiq alias Sikoo, Nazir alias Najjoo, Yakoob and Bashir running and reached us. From whom Bashir and Nazir had guns in their hands. Boota had hatchet. Remaining Manzoor, Siddiq and Yakoob had lathis in hands. From them Bashir asked us not to take cattle to pound and return back to them. We refused that the cattle have damaged our crop and we will impound them in cattle pound. At that time our other men, Sultan, Noor s/o Shah Muhammad, Noor s/o D.1 Mohamed also came there. On refusal of not handing over the cattle, Bashir asked his companion, to get back the cattle, on his saying so, Manzoor, Boota; Mohamed Siddiq and Yakoob start--ed taking back the cattle. We refused to give them back. On our refusal, Boota who had hatchet in hand immediately caused hatchet injury on head of Sultan. Manzoor gave lathi injury to Anwar in his back: Siddiq caused to Noor s/o D.1 Mohamed lathi blow and Yakoob caused lathi blow to Noor s/o Shah Mohamed, we also gave blows in our defence to Manzoor, Siddiq and Boota. At that time Bashir and Nazir asked their companions to be aside and I out of fear hid myself behind a Sirhan tree nearby where from I was seeing. When the companions of Bashir went aside Bashir fired direct gun shot at Noor s/o Shah Mohamed which hit him on his thigh and due to blow be fell down. Bashir fired second fire which hit Anwar on his arm and Bashir fired third shot which hit Anwar on his thigh and Nazir fired direct gunshot which hit Sultan which hit him running on his back at his buttock. Nazir also fired second fire which hit Noor s/o D.1 Mohamed on his thigh. These injured fell down due to injuries. Bashir and other took away impounded cattle to their village. I remained with injured when after 1/2 hour injured Noor s/o Shah succumbed to his injuries. I gave water etc. To other injured. In the mean--while D.1 Mohamed, Haleam and Mohamed came whom I narrated the above story and left them over injured and dead body for custody and have come on foot and lodge my compLalnt that investi--gation be done." P. W. 2 Tagio Khan was the A. S. I. Incharge of P. O. P. Girari who recorded Exh. 10 and sent the same for registering in 154, Cr. P. C. Book to S. H. O. Golarchi. P. W. 2 went to the vardat which was in Chak No. 24 in the land of complainant Noor Mohamed. The dead body of Noor s/o Shah Mohamed was lying in blood. He secured blood-stained earth and sealed the same. He also recovered two crime empties from the vardat and sealed the same. The Juwar cultivation at the vardat was found trampled and damaged. Exh. 12 is the vardat memo. P. W. 11 Mohamed Malik alongwith another mashir Arif Saleem had witnessed the said menu. The inquest report of dead body of Noor s/o Shah Mohamed was prepared as .Exh. 13 and the body was sent to Medical Officer Golarchi. On the same day at g p. m injured Sultan, Anwar and Nour Mohamed s/o D.1 Mohamed were produced before him and he prepared mashirnamas of injuries Exh. 14. On the same night at 11.30 p.m. P. W. 2 arrested accused Manzoor. Boota and. Mohamed Saddiq it Golarchi. The mashirnama of their arrest is Exh. 15 which was prepares in presence of the same witnesses. Since the accused arrested, had injuries on their persons, therefore, their mashirnama of injuries was also prepare, and the same is Exh. 16. Those three accused were sent to Medical Officer Golarchi and the certificate of their injuries are Exhs. 29, 30 and 31. On 11July, 1976 P. W. 2 Tagio Khan arrested accused Bashir and Yakoob under Mashirnama Exh. 17. On 10July, 1976, the dying declaration of injured Anwar was recorder by A. S. I. Tagio Khan in the presence of Mukhtiarkar and F. C. M., Golarchi Mr. Usman P W. 6.th th
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The Medical Officer Dr. Krishan Lal was also present at that time. The same is Exh. 26 and reads as under:- "I Anwar s/o Saeed Arain no village Chak No. 24, Deh Rari No. 2. Taluka Golarehi say that I reside in Chak No. 2 with my family. I own land measuring 32 acres in deh Reri No. 2. There is paddy and Juwar etc, cultivation on my land. Yesterday on 9th July. 1976 at about 10 a. m. Cattle of Bashir, Boota, Najoo and other: came on my cultivation, which I, Noor Muhammad son of Shah Muhammad, D.1 Muhammad and Noor took cattle out and were taking to cattle pound meanwhile, Najoo, Bashir, Booty, Manzoor, Siddique and Yakoob came there and they tried to take away the cattles, on which fight started Basher armed with gun who fired on Noor Mohammad son of Shah Muhammad, who fell down. Then Bashir fired on me which hit me and I also fell down anti Boota gave hatchet blow. I went unconscious. Manzoor armed with hatchet who gave hatchet blow to Sultan. Najoo armed with gun who fired on Sultan which hit him. Siddique and Yakoob armed with lathes who gave lathi blows. Noor Muhammad expired due to blow given by Bashir. Same Bashir also fired on me and Boota had given me hatchet blow. This statement was given by injured Anwar s/o Saeed before Mukhtar--kar and F. C. M., Golarchi. Before me. (Sd.) Mukhtiarkar and F. C. M., GOLARCHL (Sd.) A. S. I. P. P. Girari. The injured is in full senses. He is able to give statement. (Sd.) 10th July, 1976. Illegible." Thereafter, the S. H. O. Sardar Khan P. W. 13 took over the investigation. P. W. 13 Sardar Mohammad verified the vardat by visiting the same and examined P. Ws. Haleem, Mohammad and D.1 Mohammad. He also examined P. W. Sultan at the Hospital who died later on 30th July. 1976, injured Anwar expired on 10July, 1976. Accused Basher way interrogated by Sardar Mohammad and he volunteered to produce weapons and on 12th July, 1976 in the presence of the same mashirs appellant Bashir produced two single barrel guns, two empty cartridges, 6 live -- cartridges, one hatchet and three lathis from his house. The guns smelt of gun-powder, Hatchet had some traces of blood but there were no blood marks on lathis. All the articles were sealed and their memo is Exh. 45. On 13July, 1976 injured Sultan died at Hyderabad Hospital. On 4th August, 1976, S. 164, of Cr. P. C. Statement of P. W. Noor Mohammad was got recorded before Mukhtiarkar, Golarchi. The articles were sent to Chemical Examiner and Ballistic Expert. Report of Chemical Examiner is Exh. 50 which shows that the earth and clothes and hatchet were found blood-stained. The report of the Ballistic Expert Exh. 51 shows that 4 crime empties had been fired from one gun No. 24405 while one crime empty had been fired from gun No. 9899. Both these guns were single barrel guns. The prosecution had examined 2 eye-witnesses namely, the complai--nant P. W. 1 Noor Mohammad s/o Saieed who is the brother of deceased Anwar and who had specifically reiterated the contents of the report lodged by him. The complainant was not relied upon solely by the trial Judge. However, much more important is the deposition of Noor Ahmed s/o D.1 Mohammad who had received gunshot wounds on both of his thighs. He stated that on hearing from the side of deceased Anwar at 10 a. m. He, Sultan and Noor went running there and saw accused Boota armed with hatchet, accused Yakoob, Manzoor and Saddiq armed with lathi and 20 goats and 10 cows of Boota standing on the land of Anwar. Anwar wanted to take the cattle to cattle pound and accused asked Anwar not to do so but Anwar insisted, and then Boota inflicted a hatchet blow on Sultan. Manzoor inflicted laths blow on the head of Anwar and Saddiq inflicted laths blow on P. W. Noorth th
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Ahmed. P. W. Noor Ahmed also stated that in defence they inflicted lath! Blows on accused Siddiq. Bashir and Nazir came there armed with guns. Bashir opend fire which struck Noor. Another shot from Bashir hit Anwar on left arm and 3rd shot from Bashir hit Anwar on abdomen. Nazir fired at Sultan. Second shot of Nazir hit, P. W. Noor Ahmed on right thigh. Anwar, Noor and Sultan fell down and accused took away the cattle. Haleem and Mohammad reached there after the departure of accused. Anwar died at the vardat. Complainant Noor Ahmed had taken shelter behind the tree at the time of incident. P. W. Noor Ahmed stated in cross-examination that he remained in hospital for 15 days. He stated that complainant was present with Anwar from beginning till he died in the hospital. He stated that Juwar crop was up to waist high. He admitted that other harts were present in other crops. He asserted that none-else except Haleem and D.1 Mohammad came from their village. He admitted that Sultan and Anwar went unconscious on receiving gunshot. He asserted that he was lying at the vardat. He denied any enmity with Bashir and others. He denied that he was not present when injuries were caused to Sultan and others. He stated that accused was 4 or 5 paces away when they fired at him. The statement of this witness Noor Ahmad can hardly be challenged by the defence as this man had himself suffered injuries at the hands of the appellant. He has given a clear account of the injuries caused by Bashir, Nazeer and Manzoor and the same injuries are amply corroborated from the medical evidence. There is no reason to disbelieve him. It is only on the point of injuries caused by accused Siddiq and Booth that this P. W. Noor Ahmed had committed a mistake and he has assigned a hatchet injury to Boota upon Sultan but Sultan had only pellet injuries on his buttock. Siddiq is wrongly stated by him to have caused him larhis blow on his head. He has, therefore, been disbelieved to that extent and Siddiq and Boota have been acquitted. However, his statement that Manzoor appellant inflicted a lathi blow on the-head of Anwar deceased has been found to be correct as the doctor found a lacerated wound on the head of Anwar as shown in post-mortem report Exh. 25. The defence has not been able to shatter the testimony of this witness in cross-examination. There is no enmity which has been suggested to him and in fact the statement under section 342, Cr. P. C. Made by appellant Bashir that he had intervened in the dispute between the son of D.1 Mohammad and deceased Sultan in respect of Shahadat Bibi has not been suggested to this witness Noor Armed in cross-examination, although he is son of D.1 Mohammad and brother of Mohammad s/o D.1 Mohammad about whom an affidavit of Shahdat Bibi had been filed that her father Sultan (deceased) wanted to perform his Nikah with Mohammad s/o D.1. Mohammad. The failure of the defence to suggest any such question to P. W. Noor Ahmed shows that the defence did not consider P. W. Noor Ahmed as in any way inimical to the defence. At this stage, it is appropriate to take into account the injuries, which have been certified to have been received by the complainant party as well as the injured party. Post-mortem report in respect of deceased Noor s/o Shah Mohammad shows the following injuries on his person:- "(1) An entrance wound of fire-arm 1/5" in diameter situated on the right inguinal region (upper part of the thigh). (2) Seven entrance wound of firearm each 2 m. m. In which diameter surrounding the injury No. 1 situated on the rt. Inguinal region, (upper part of rt. Thigh). (3) Two entrance wounds of fire-arm each 2 mm. In diameter situated anteriorly on the scretum. The injuries are caused by fire--arm (gun)." Post-mortem report in respect of deceased Anwar shows the following injuries on his person:-- "(1) A lacerated wound 1--" x --" + --" on the left parietal region of head. (2) An entrance wound of fire-arm 1/6' in diameter on the upper third back of rt. Forearm. (3) An exit wound of fire-arm --' in diameter on the middle third of rt. Forearm. (4) One contusion 1----- x ----- on the lateral side upper third of rt. Thigh,
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(5) A lacerated wound" x 1/6" x 1/6" on the dorsal surface of left little finger. (6) An entrance wound of fire-arm 1/6" in diameter, deep to abdominal cavity situated on the anterior abdominal wall in the right iliac fossa. Injuries Nos. 1, 4 and 5th are caused by hard blunt rough substance. Injuries Nos. 2, 3 and 6th are caused by firearm." The injuries upon Sultan deceased Tare mentioned in Exh. 27 as:- "three entrance wounds of fire-arm each 1/6' in diameter on the left buttock about 1/4" away from one another. "Death was due to shock a fical toxinia and paritemia caused by operation in abdomen which was necessitated by two small perfora--tion in ilium and one perforation in rectum. In my opinion these perforations could not have been caused by pellets in the thigh Time between death and post- mortem was about 12 hours. I issued such post-mortem notes which, I produce as Exh. 47, it is same and signed by me." The injuries upon Noor Ahmed are shown in Exh. 28 as under:- "(1) Eight entrance wound of fire-arm each measuring 2 mm. In diameter, each about 1/6' away from one another, situated on the medial side of left thigh. (2) Sixty entrance wound of fire-arm each measuring 2 mm. In dia--meter, each about 1 /6' away from one another situated mostly on front, lateral side of right thigh." Accused Manzoor has been certified by Dr. Krishan Lal P. W. 5 as having the following injuries:-- "One contusion 3" x ----- on the middle third rt. Back a lacerated wound 2" x --' x --" on the rt. Parietal region of head." Accused Boota has been certified by Dr. Krishan Lal P. W. 5 to be having the following injuries:- "A lacerated wound 1--' x --" x --" on the occipital region of head." Accused Siddiq was certified by Dr. Kirshan Lal P. W. 5 to be having following injuries vide Exh. 31:- "(1) A lacerated wound 3" x --" x --' on the right parietal region of head. (2) A lacerated wound 1--" x --" x --' on the right occipital region of head." The injuries above-noted on the persons of three deceased and P: W. Noor Ahmed clearly confirmed the statement made by P. W, Noor Ahmed that 5 shots had been fired by two accused Bashir and Nazeer combined. Mr. Imam Ali Kazi had wanted us to disbelieve Noor. Ahmed when he stated that there were 5 shots and Mr. Kazi submitted that only 4 shots are actually found as according to him only one shpt had been fired upon deceased Anwar. We do not find any justification' to agree with him as deceased Anwar had two distinct injuries on his right forearm and right abdomen and in view of the clear statement made by P. W. Anwar Ahmed, we cannot disbelieve him, merely on the supposition that the two injuries could have been caused by one shot. When a witness, whose presence at the time of incident cannot be doubted because of the injures on his persons, therefore, his statement about the number of injuries upon deceased Anwar cannot be easily brushed aside, particularly when there are two fire-arm injuries on two distinct parts of the body of the deceased Anwar. The statement of P. W. Anwar Ahmed explaining that in defence they caused injuries to accused Siddiq by lathi is also borne out by the two injuries found on the person of accused Siddiq by blunt substance vide certificate Exh. 31. It is correct that the complaining party have not explained one blunt substance injury upon each of accused Boota and Manzoor, but the same can be explained on the basis that in the fight that took place in respect of the taking of the cattle to the cattle pound, the complaining party could have caused such injuries in defending their position. The other piece of evidence is the corroborative statement of P. W. Haleem who is a neighbour and reached the place of incident after hearing the news. He found Noor s/o Shah Mohammad lying dead with gun--shot wounds. Anwar and Sultan were also lying there injured. Noor Mohammad was standing behind a tree. Anwar told him that cattle of Bashir had trespassed into his cultivation
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and damaged the crop. Anwar tried to take the cattle to the cattle pound Bashir and Nazir armed with guns. Boota armed with hatchet, Yaqoob, Manzoor and Siddiq armed with lathis over there and they tried to stop Anwar. Boota had inflicted blow on the bead of Siddiq. Mauzoor inflicted lathi blow on the head of Noor and Siddiq inflicted lathi blow on Sultan and Boota inflicted hatchet blow on Sultan. Bashir and Nazir opened fire which hit Sultan, Noor, Noor Mohammad and Anwar. Complainant Noor Mohammad also narrated the same facts to him. In cross-examination he admitted that when he reached the vardat complainant was standing behind the tree. This statement is however, of little effect and it has been discarded because Anwar had gone unconscious after receiving the injuries and, therefore, he could not have made the alleged dying declaration. More--over, the fact that complainant was found still behind the tree has made the statement of this witness as well as of complainant rather doubtful. Moreover, the simple injuries assigned by this P. W. To different accused are not borne out by the Medical evidence. The trial Judge has disbelieved the dying declaration Exh. 26 recorded by A. S. I. Tagio Khan though it was having a certificate, from the doctor that the injured was in full sense and he was able to give statement; but the trial Judge has disbelieved the same on account of the fact that the D. D. Does not bear the signature of the maker and that the doctor has stated that the deceased was Punjabi and he was speaking Urdu and Punjabi, whereas Magistrate said that he was speaking Sindhi. Trial Judge also found that doctor had stated that dying declaration was recorded by the Mukhtiarkar by his hand whereas the I. O. And the Mukhtiarkar had stated that it was recorded by the I. O. At the dictation of Mukhtiarkar. The trial Judge also held that complainant had stated that Anwar had gone unconscious and continued to be so unconscious and, therefore, there was no question of his giving dying declaration. The trial Judge was also of the view that the alleged dying declaration was false to the extent that Boota gave hatchet blow to Anwar and Manzoor gave hatchet blow to Sultan, whereas a medical report shows that there were no hatchet injury upon Anwar and Sultan, therefore, the dying declaration was discarded and rightly so. The other circumstance relied upon is the recovery of guns and crime empties on 12th July, 1976 at the instance of appellant Bashir on 11th July, 1976 in presence of Mashir Mohd. Malik. The memo for the same is Exh. 45. The Investigating Officer who recovered these articles and prepared the memo of recovery is S. H. O. Sultan P W-13. There is nothing in the statement of mashir and the I. O. Which could doubt the recovery of these articles at the instance of Bashir. The guns and the crime empties alongwith three cartridges recovered from the vardat were sent to the ballistic expert, report of the ballistic expert Exh. 51 proves that 2 crime empties secured from the vardat were fired from gun No. 24405 and crime empties secured from the house of Bashir were also fired from the same gun while one crime empty was fired from gun No. 9899. "This confirms in effect that appellant Bashir had fired at least three shots from his gun. It also shows that in fact he had fired 4, shots but the same has not been mentioned by the P. Ws. The matching of the crime empties with the gun shows that Nazeer appellant has definitely fired one shot from his gun. The other crime empty from the second shot of his fire is missing and there could be any reason for the same. But there is no reason to disbelieve injured Ahmed on account of the absence of one crime empty from the shot of Nazeer or the addition of one crime empty in the shots of Bashir. The definite statement that three shots from Bashir had hit deceased Noor, Anwar and Sultan is fully corroborated by the presence of the crime empties which match with the two guns. The criticism of Mr. Imam Ali Kazi that mashir is not from the locality is not correct as this mashir had witnessed the arrest of Bashir on 17th July, 1976 by A S I Tagio Khan and the mashir as well as the appellant Bashir were produced by Tagio Khan before S H O Sardar Mohammad on 17th July 1976 in the night as Sardar Mohd. Had taken charge of the investigation, and therefore, the mashir had to be produced before him for the purpose of recording of his further statement and verification of the arrest and since S. H. O. Sardar Mohammad had stated that it was night time,
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therefore, the mashir must have stayed there for the night and he was taken in the morning to witness the recovery at the instance of Bashir. There is nothing in the cross-examination of mashir Mohammad Malik which could condemn him as unreliable. He was a resident of near locality as he resides within two miles from the vardat and he did not appear as the witness for the police before that. He has no enmity with the accused and has no relationship with the complainant. The mere fact that he has witnessed the mashirnama of vardat, mashirnama of arrest and mashirnama of recovery is not enough to condemn his deposition particularly when S. H. O. Sardar Mohammad has also deposed about the recovery of guns and crime empties and cartridges at the instance of appellant Bashir. No particular cross-examination has been directed against S. H. O. Sardar Mohammad in respect of his integrity and disinterestedness, he is as good a witness as any other person. The recoveries are, thus proved beyond reasonable doubt and they establish, alongwith ballistic report, that the two guns had been used in firing the crime empties. We may at this stage mention here that the appellant Bashir has no licence for these guns and cartridges. The guns were licensed in the name of Sardar and Boota and they were produced from the house of Bashir. Therefore, it is also established that Bashir possessed these guns and cartridges without any valid licence, and he had, therefore, committed an offence under section 13-E of the Arms Ordinance. The same recovery memo. Exh. 45 also shows the recovery of one hatchet and three lathis. The Chemical report Exh. 50 showed that the earth and clothes as well as two of the wooden lathis and hatchet with handle were found blood--stained. The appellant Bashir in his statement denied the case of the…
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