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Petitioner: MUHAMMAD SIDDIQ VS Respondent: Abdullah And 2 Others
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Allah Dino G. Memon Title: MUHAMMAD SIDDIQ vs Abdullah And 2 Others Case No.: Criminal Acquittal Appeal No. 140 of 1988 Date of Judgment:1991-04-07 Reported As: 1992 P Cr. L J 858 Result: appeal accepted
JUDGMENT
JUDGMENT ALLAHDINO MEMON, J.--- This acquittal appeal is directed against the judgment, dated 29th February, 1988, ,passed by the learned 1st Additional Sessions Judge, Hyderabad, by Which respondents Abdullah, Muhammad Rahim and Bachayo were acquitted. The brief facts of the prosecution case are that on 5-8-1976 Vikio son of Ibrahim lodged report at Police Station Bulri Shah Karim, District Hyderabad, which reads as under:-- "I am Hari and cultivate land of Haji Ismail Memon in Deh Abid Mohindo. Talib son of Adam Jat is my nephew and we reside in the same village. There was dispute between us and Khuda Yar Khan over land, and litigation is pending between us in Courts. Khuda Yar Khan Punjabi has friendship with Abdullah Mangsi, Bachayo Mangsi and other Mangsis. They used to visit each other. Today on 5-8- 19761 and Talib came together to Town Bulri Shah Karim for some private work. After being free from work we came to the hotel of Abdullah Mangsi for having a cup of tea at about 3-30 p.m., we, Abdullah Mangsi, Muhammad Rahim Mangsi and Allah Bachayo Mangsi, were sitting in the hotel, Bachayo Mangsi said to us that we should withdraw-the case which we had filed in the Court against their friend Khuda Yar Punjabi otherwise we will be murdered. Whereupon Talib Jat told Bachayo that it was dispute with Khuda Yar Punjabi on the land and they should not interfere in that matter. Due to which there was exchange of hot words and there was commotion whereupon, Ghulam Hyder Panhwar, Siddiq Jat and Usman also came there. Muhammad Rahim Mangsi instigated the others to kill and not to spare us: On the instigation of Muhammad Rahim, Abdullah, who had a revolver in his hand directly fired at Talib which hit him on his chest as a result of which he fell down and went unconscious. Bachayo and Muhammad Rahim Mangsi came running in order to give Lathi blows to us. Allah Bachayo gave Lathi blows on my back. Muhammad Rahim
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also gave Lathi blows on my back. Whereupon raised cries. Then Ghulam Hyder, Siddiq and Usman came there running and rescued us from Allah Bachayo and Muhammad Rahim after entreating them. Thereafter leaving Siddiq Jat, Ghulam Hyder Panhwar and Usman Jat at Talib, I have come to lodge the report." The above F.I.R. Was recorded by H.C. Sher Muhammad, and the same has been produced as Exh.9. The H.C. Then went to the place of Wardat and prepared Mashirnama of Wardat in presence of Mashirs Bachayo and Ghulam Shah, and the Mashirnama has been produced as Exh.36. He also prepared Mashirnama of injuries on the person of complainant Vikio in presence of the same Mashirs and the Mashirnama has been produced as Exh.37. Thereafter S.H.O. Jang Sher Khan reached at the place of Wardat and verified the investigation carried on by H.C. Sher Muhammad. He also recorded their statement of complainant Vikio. He then recorded statements of P.Ws. Us an, and Ghulam Hyder. Thereafter he arrested accused Abdullah from. Buhi Shah Culvert at 6-30 p.m. In presence of Mashirs Matro and Zahoorul Hasan and prepared such Mashirnama which-has been produced as Exh.26. The accused then led the S.H.O. And Mashirs to a room inside his hotel and produced one .25 bore pistol from empty crates. He opened the pistol and found that it was loaded. He then secured it and prepared such Mashirnama, the pistol and bullets were sealed at the place of recovery and the Mashirnama has been produced as Exh.27. He then brought the accused and the property to the police. Station, and handed over the sealed pistol to the writer Head Constable of the police station in the same condition for keeping in safe custody. He had also lodged the report under section 13-D, Arms Ordinance against accused Abdullah on behalf of the State. He then recorded statements of Shah Ali, Inayat, Ramzan, Haroon and Fazal on 6-8-1976. He received information from L.M.C.H., Hyderabad, that injured Talib had expired in the hospital and as such he converted the offence into one under section 302, P.P.C. On 7-8-1976 he recorded the statement of Malik Khuda Yar. On 9-8-1976 he produced P.Ws. Ghulam Hyder and Siddiq before. Mukhtiarkar and F.C.M., Tando Muhammad Khan and got their 164, Cr.P.C. Statements recorded. On 11-8-1976 he arrested accused Muhammad Rahim and Bachayo at 8-00 a.m. From Police Station Bulri Shah Karim in presence of Mashirs Abdullah Khan and Khamiso under Mashirnama and the Mashirnama has been produced as Exh.32. After his arrest accused Bachayo voluntarily led police and Mashirs to Khabar bush situated near Sim Nala and Bulri Shah Karim-and produced one Lathi which was secured in presence of Mashirs and such Mashirnama was prepared which has been produced as Exh.33. The Lathi was not bloodstained. Thereafter accused Muhammad Rahim led the police and Mashirs to another Khabar bush situated near Sim Nala Bulri Shah Karim Naka and produced one Lathi. It was secured under Mashirnama, and the Mashirnama has been produced' as Exh.34. The Lathi was not bloodstained. The clothes of deceased were sent to Chemical Analyser for examination and report. He produced the chemical report as Exh.41. The pistol, one bullet secured from Watdat, one bullet recovered from dead body of deceased Talib and 5 live bullets secured from the said pistol and 5 other bullets were sent to the ballistic expert for test purpose and for examination and report. The Ballistic Expert report has been produced as Exh.42. After necessary investigation the case was sent up before the Court. A formal charge ,was framed against the accused to which they pleaded not guilty. At the trial prosecution examined complainant Vikio P.W.1, he has produced F.I.R. As Exh.9, Tapedar Muhammad Bachal P.W.2; he has produced the sketch of place of Wardat as Exh.Ll. Mr. Noor Muhammad P.W.3 the then Mukhtiarkar Tando Muhammad Khan, he had recorded 164, Cr.P.C. Statements of P.Ws. Usman, Siddiq and Ghulam Hyder. He has produced the three statements as Exh.14, Exh.15 and Exh.16. Muhammad Usman P.W.4 an eye-witness, he has produced copy of order passed by the Member, Board of Revenue, Sindh at Karachi as Exh.19. Ghulam Hyder an eye-witness P.W S Muhammad Siddiq, Medical Officer P_W.6, he has produced injuries certificates of deceased Talib and Vikio as Exh.23 and Exh.24. Mashir Matare P.W.7, he has produced Mashirnama of arrest of
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accused Abdullah as Exh.26, Mashirnama of production of pistol loaded with 6 bullets by accused Abdullah from boxes of Coca Cola Bottles lying in a room of his hotel as Exh.27. Dr, Saifuddin Siddiqui, he' had conducted post-mortem on the dead body of deceased Talib and has produced post-mortem note as Exh.29. S.H.O. Jan& Sher Khan P.W.9, he has produced chemical report as Exh.41 and report of the Ballistic Expert as Exh.42. Mashir Boola Khan P.W.10, he has produced Mashirnama of arrest of accused Bachayo and Muhammad Rahim as Exh.32. Production of Lathis by the two accused as Exh.33 and Exh.34. Head Constable Sher Muhammad P.W.11, he had recorded the F.I.R. Which has been produced as Exh.9, and prepared Mashirnama of place of Wardat which he has produced as Exh.36, Mashirnama of injuries on complainant Vikio as Exh.37, Mashir Bachal P.W.12, he had acted as Mashir of Mashirnama of injuries of Vikio, which has been produced as Exh.37. Mashirnama securing of blood-stained clothes of deceased Talib as Exh.36. After the close of the prosecution case the statements of the accused were recovered under section 342, Cr.P.C., in which they had denied the allegations. Accused Abdullah has further stated that the witnesses are inter--related and are related to the complainant and deceased. He has enmity with them. Accused Bachayo is husband of his sister, while co-accused Muhammad Rahim is his brother as they are sons of same mother. He has also produced written statement to show relationship of the witnesses and enmity as Exh.45--A. He has further stated that he was sitting in his hotel and was attending the customers when Talib and Vikio came in his hotel. Talib asked him not to help Khuda Yar Punjabi in the cases m Courts and threatened him that if he did not desist he will teach him a serious lesson. He asked them not to threaten him and not to quarrel with him on which both jumped towards him and Vikio Wanted to beat him. He pushed Vikio who fell down with his back on the chairs of the hotel. Meanwhile Talib took out a pistol from his Shalwar, he grappled with Talib and. Wanted to snatch the pistol from him. They grappled with each other for the pistol. In the struggle, pistol went off due to which Talib was hit who fell down in his hotel. The pistol also fell down from him in his hotel. He is innocent. He was in his hotel when they came in his hotel with the intention to attack him. Alongwith his written statement accused Abdullah has produced copy of deposition of complainant Vikio as Annexure `A' in Case No.63 of 1975 State v. Zar Ghaffar. Khuda Yar and 2 others, F.I.R. Dated 30-3-1974 lodged by Muhammad Usman son of Haroon under section 307/34, P.P.C. As Annexure `B', F.I.R. Dated 16-12-1973 lodged by Muhammad Hasan son of Muhammad Adam under sections 506, 452 as Annexure `C', deposition of Muhammad Hasan in Case No.63 of 1975 State v. Zar Ghaffar and others as Annexure `D', charge-sheet in Case No.63 of 1975 State v. Zar Ghaffar and 3 others as Annexure `E'. Deposition of Mataro in Case No.63 of 1975 State v. Zar Ghaffar and 3 others as Annexure `F. Judgment in Criminal Appeal No.30 of 1977 Zar Ghaffar v. The State as Annexure `C', judgment passed by Civil Judge and F.C.M. Tando Muhammad Khan in Case No 63 of 1975 (which has been wrongly mentioned as 1976) State v. Zar Ghaffar and 3 others as Annexure `C-1', judgment in Criminal Appeal No.30 of 1977 passed by the learned Sessions Judge, Hyderabad in appeal filed by Zar Ghaffar and others v. State as Annexure `H'. Accused Muhammad Rahim has also denied the allegations. He has further stated that he has been implicated on account of enmity for which documents had been produced by co-accused Abdullah who is his brother. Co--accused Bachayo is their brother-in-law, P.Ws. Are inter-related and are inimical to them. Accused have also examined one Basar Palejo as D.W. No.1, who has stated that he has a Transport Agency in the name of Shahbaz Transport Agency on Bathoro Road, Bulri Shah Karim, since last 15/16 years. Accused Abdullah, Muhammad Rahim and Bachayo arc known to him. Accused Abdullah owns a hotel which is situated opposite his transport agency at the distance of about 30 or 32 feet. Road leading to Mirpur Bathoro from Tando Muhammad Khan intervenes his Agency and Hotel of Abdullah. About eleven years back at about 2-00 or 2-30 p.m. He was sitting in his Agency when he heard commotion coming from the hotel of Abdullah: He went to that place and found accused Abdullah sitting at the counter of the hotel while deceased Talib
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and complainant Vikio were standing in front of the counter of the hotel and were asking accused Abdullah not to help Khuda Yar Punjabi in the case pending between them. At that time, Fazil Rind Haroon Zaunr and 2/3 servants of the hotel were present there. No other person was present in the hotel. Accused Bachayo and Muhammad Rahim were not present in the hotel, at that time. Accused Abdullah replied to the deceased and the complainant that he was not helping Khudayar Punjabi in any way. On which there was exchange of hot words between deceased and Abdullah. Accused -Abdullah asked the deceased and complainant to go out of his hotel on which complainant Vikio abused Abdullah, who pushed him and he fell down on the chair. After. That, deceased Talib took out pistol from the fold of Shalwar and aimed at accused Abdullah, who grappled with him in order to snatch pistol from him but the pistol went off and deceased Talib was hit and fell down. He had received fire-arm injury on his chest they he (witness) immediately went away to his village. In cross-examination, he has deposed that 2 to 4 labourers were working at his transport company for loading purposes, their names were Muhammad, Jummo Mir Behar and Abdullah Mir Behar. He has denied that the loading work takes place only during night. He permanently sits at his transport company. At the time of commotion, he alone was sitting at his company and left the same unattended. He was hardly for 2/3 minutes in the hotel of accused Abdullah. Accused Abdullah has always 4/5 servants at his hotel but he did not remember their names. He does not purchase tea from the hotel of accused Abdullah but he sends for tea from the adjacent hotel of his relation Allahdino. This Allahdino did not come at the place of commotion. There might be one or two servants at the hotel of Allahdino. None of the servants of Allahdino came to the place of incident. 2/3 servants of accused Abdullah were present at the hotel, the customers namely Haroon Zaunr and Fazil Rind. He did not know if the accused and complainant had taken tea in the hotel of accused Abdullah. He had only seen them standing in front of the counter. There were 4/5 hotels at that time and the same were open at the time of incident. Nobody came to the place of incident from those hotels. He could not say, as to where that pistol was taken. Accused Abdullah met him after 3/4 years of the incident. He did not know that the police had come at the place of Wardat. He was not examined by the police. After three days of this incident, he came to know that accused Abdullah was detained by police in murder case. He could give the names of brothers of accused Abdullah. He did not tell anybody or police agency that accused Abdullah was innocent. He hay left transport agency opened and unattended today and on the previous day when he came to attend the Court. He has denied that he was giving false evidence at the instance of accused. The learned trial Judge, after taking into consideration the evidence produced by the prosecution as well as the accused/respondent was pleased to acquit them vide judgment, dated 29th February, 1988. The present appeal is directed against the above judgment of acquittal. We have heard Mr. Hayat Qureshi, learned counsel appearing for the State, Mr M.I. Memon, learned counsel appearing for the private respondents appearing for the complainant and have while defence story put forth by the accused was unnatural and was belied by circumstances. He has further contended that the learned trial Judge has misread the evidence on the point of recovery which has occasioned miscarriage of justice. However, it was further contended by Mr. Hayat Qureshi, learned counsel appearing for the State that since there was exchange of hot words between the parties, before the incident, the incident took place at the hotel of the accused and the accused did not repeat the shot, he will be liable under section 304, Part I, P.P.C. In support of his contentions, he has relied upon (1) PLD 1959 Kar. 137 (2) PLD 1967-SC 185 and 443. Mr. M.I. Memon, learned counsel appearing for the accused/private respondents has contended that the burden was on the prosecution to prove its case beyond reasonable doubt and since the prosecution had failed to prove its case beyond reasonable doubt, the respondents were rightly acquitted. He has further contended that except complainant Vikio, the other wise including Mashir
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Mataro were chance witnesses. He has further-contended that the pistol and empty were sent to the ballistic expert after long delay and therefore, no reliance could be placed on the report of Ballistic Expert. In support of his contentions, the learned counsel has relied upon (1) 1989 P Cr. L J 1179; (2) 1989 P Cr. L J 2234. Mr. A.Q. Halepota, learned counsel appearing for the complainant has adopted the contentions raised by Mr. Hayat Qureshi, and has further contended that the defence plea was afterthought inasmuch as the cross--examination of complainant and P.Ws. Shows that initial stand taken by the accused was that the case was false. However, another counsel was engaged, who made an application on 11-5-1982 i.e. After six years for recalling the complainant and the defence theory was put to him in cross-examination. He has further contended that the defence theory was false and was belied 'by the fact that there was no charring and blackening around the injury and the pistol was not found from the place of Wardat. We have considered the contentions and have gone through the R and P of this case. Dr. Saifuddin Siddiqui, P.W.8, was M.O. Medico-legal, section, L.M.C.H., Hyderabad on 5-8-1978 and had carried on post-mortem on the dead body of deceased Talib son of Adam. According to him. He had found the following injuries on the person of deceased Talib. (1) Small circular lacerated wound 1/6" in diameter inverted edges over the left side of chest, just below left sterno-clavicle joint. It was wound of entrance. The injury appeared to have been caused by some fire-arm, such as revolver or other kind of weapon. He found that both portions of pleura were perforated at the side of external injury having blood in pleural cavity and perforation was through and through. Left lung was purported and conjected. The portion of lung which was overlapping the heart was perforated through and through. Heart and pericardium contained blood with perforation of upper portion of pericardium right lung and lower lope of right lung at its base were perforated, conjested and contused. Perforation was through and through upto back of right pleura and bullet was lodged at postero lateral part of thorax valve at 9th intercostal space. Stomach contained-8 oz. Of water. Bladder was empty. From external and internal examination, he was of the opinion that the cause of death was due to shock and haemorrhage, which was the result of respiratory and circulatory failure as a result of fire-arm injury over the left of chest. The injury was ante-mortem and was sufficient to cause death. One bullet was recovered from dead body. Time between injury and death was about 5 hours and the time which elapsed between death and post-mortem was about two hours. He has produced the post-mortem note as Exh.29. In cross-examination he has stated that he had not mentioned the distance of the fire--arm from which shot was fired. He has not mentioned blackening or charring marks on the external injury, as those were not present. He did not remember whether the instructions on the printed form of post-mortem notes direct that medical certificate must mention the distance of fire-arm and charring marks if the injury is caused by fire- arm. It is correct that bullet had travelled from external injury to downwards at the 9th inter-costal space if the bullet had been fired from horizontal, it would have gone through and through and there would have been exit wound on the upper part of thorax. It is correct that in case of fire-arm injury the clothes of the deceased were important to be examined to find out the distance of firing by taking the burning portion of the clothes. He did not examine the said clothes. If the firing is within the distance of four feet, then there would have been charring and blackening marks. It is correct that if muzzle of the fire-arm is put on the skin of the body then there would be no charring and blackening of the body as the assessee explosion would pass inside the body. Dr. Muhammad Siddiq Arain, was Medical Officer, Rural Health Centre, Bulri Shah Karim Hospital on 5-8-1976. On that day, at 4-00 p.m. He had received injured Talib son of Adam (since deceased)
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from Police Station Bulri Shah Karim for examination, treatment and certificate. He examined injured Talib and found the following injuries on his person. (1) Circular lacerated wound 1/2" c.m. In diameter on the interior side of chest between first and second intercostal space left to the lateral part of sternum. N'o charring marks present. He had referred injured Talib to L.M.C.H. Hyderabad for further treatment. According to him the injury appeared to have been caused by some fire-arm such as revolver. The nature of injury was reserved. He had issued such certificate which has been produced as Exh.23. On the same day, he had received injured P.W. Vikio son of Ibrahim for examination, treatment and certificate. On examination, he found the following injuries on his person:-- (1) Transverse bruise 3" x 1/2" on the lateral side of left arm at the lower border of left side muscle. (2) Transverse bruise 3" x 1/2" on the lateral side of right arm at the middle of left side muscle. (3) Transverse bruise 3-1/2" x 1/2" on the external side of right shoulder joint. (4) Oblique bruise 7" x 1" on the right side of chest at the level of 8 thorasic vertebrae back on the upper part. (5) Transverse bruise 5" x 1/2" on the left back of chest at the level of 8 thorasic vertebrae. (6) Longitudinal bruise 5" x 1/2" on the left back of chest. (7) Oblique bruise 3-1/2" x 1" at the upper part of chest and at the 3 thorasic vertebrae. All the injuries were simple in nature and appeared to have been caused by hard and blunt substance such as Danda or back side of hatchet and appeared to have been caused within twelve hours from the examination. He has produced the medical certificate as Exh.24. In cross- examination he has stated that the injury on the person of injured Vikio could not be caused by fall on the table or chair. He has not mentioned in certificate Exh.24 about the kind of hard blunt substance. Arm of wooden chair is a hard substance. Border of wooden table is also hard substance. A piece of brick is also hard substance. The prosecution evidence consists of ocular evidence of:-- (1) Complainant Vikio P.W.1, Usman P.W.4, Ghulam Haider P.W.5 and Muhammad Siddique P.W.6. (2) Recovery of pistol from respondent Abdullah Mashir Mataro P.W.8, Mashirnama of production of pistol by respondent Abdullah Exh.27, S.H.O. Jang Sher Khan P.W.9. Report of Ballistic Expert Exh.42 and evidence of Dr. Saifuddin Siddiqui P.W.8 who had taken out bullet through thorax valve lodged at 9th intercostal space, while conducting post-mortem of the dead body of the deceased. (3) Recovery of Lathi from respondents Allah Bachayo and Muhammad Rahim (not bloodstained). (4) Medical evidence. (5) Statement of accused/respondent Abdullah. As far as ocular evidence is concerned, complainant Vikio has fully supported the contents of his F.I.R. According to him, deceased Talib was his nephew. About 4 years back he and deceased Talib had gone to Bulri Shah Karim from their village. After finishing their work they went to the hotel of Abdullah for taking tea. It was about 2-30 p.m. All the three accused were present in the hotel. Accused Bachayo asked deceased Talib to withdraw case pending against one Khudayar Punjabi, else he would be killed. The said Khudayar Punjabi is friend of the accused. Talib replied that the cases are pending before the Court and the accused had no business to ask for the withdrawal. By that time, P.Ws. Ghulam Haider and Siddique also came in the hotel. Accused Muhammad Rahim instigated Bachayo and Abdullah. Accused Abdullah took out a pistol from drawer and fired at Talib who sustained injury on his chest. After sustaining injury. Talib went for 2/3 paces and then fell down near the outer door of hotel. Accused Muhammad Siddiq and Bachayo caused Lathi blows to him (complainant) but he was rescued by Ghulam Haider, Siddiq, and Usman by entreating the accused. Talib lost his senses. Complainant gave facts of the incident to Ghulam Haider, Siddiq, and Usman on their inquiry. After leaving the above witnesses with the injured Talib, complainant went to Police Station Bulri Shah Karim and lodged his report, which has been produced as Exh.9.th th rd
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Police came-to the place of Wardat and referred the complainant and injured Talib to Medical Officer Bulri Shah Karim. Since the condition of Talib was precarious the Medical Officer Shah Karim referred him to Civil Hospital Hyderabad and issued such letter. Injured Talib was taken to Hyderabad by Ghulam Haider Hasan and Usman. Talib expired at 10-00 or 11-00 p.m. The complainant remained in the Hospital at Bulri Shah Karim for the, few days. There was dispute between Talib, his brother Hasan P.W. Usman Mooso and Khudayar Punjabi and Guhram Magsi on the allotment of some lands. The said Mooso is uncle of Bachayo and Guhram is their maternal- uncle. In cross-examination, he has stated that P.W. Siddiq is cast-fellow of Talibbut he is not closely related to him. He has denied that P.W. Usman is Masat of Talib, their village is about…
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