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Petitioner: IDDRIS and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Deedar Hussain Shah Title: IDDRIS and others vs THE STATE Case No.: Criminal Appeal No,9 of 1994 Date of Judgment:1996-08-05 Reported As: 1997 MLD 233 Result: Appeal accepted
JUDGMENT
JUDGMENT ' Learned IVth Additional Sessions Judge, Larkana while deciding the Sessions Case No,156 of 1981 was pleased to award conviction to the appellants under sections 148, 307 read with section 149, P.P.C. And section 11 of Zina (Enforcement of Hadood Ordinance, 1979) and sentenced them to undergo R.I. For one year, under section 148, P.P.C. And further R.I. For three years and fine of Rs,1,000 or in default to undergo R.I. For 9 months more, under section 307, P.P.C. Read with section 149, P.P.C. And also sentenced them R.I. For three years and fine of Rs,1,000 or in default to undergo R.I. For 9 months more and whipping numbering 5 stripes under section 11 of Zina (Enforcement of Hudood Ordinance, 1979). 2. The case of the prosecution is that on 1-4-1981 at about 10-00 a.m. Complainant Photo alongwith his son Gulab and Muhammad Nawaz, brother Ghulam Hyder and father Khan Muhammad were residing in the same house, his caste-fellows Muhammad, Dhani Bux, Saleh Kalhoro by caste also used to reside in the same village. About one year back Muhammad Kalhoro suspected his daughter Mst. Najma to be on illicit terms with Muhammad Nawaz the son of complainant. Complainant took "Holy Qur'an" to satisfy him that it was a false allegation, but they paid no heed and on the contrary left the village. On that account Muhammad and his relatives had a grudge and were not on visiting terms. On the night of the incident, complainant alongwith his brother Ghulam Hyder, sons Gulan and Muhammad Nawaz and his father Khan Muhammad after taking their night meals went to sleep alongwith their family members. Gulab was married with Mst. Amiran and was sleeping in the courtyard of the house alongwith his wife. When at about 00-30 hours, he woke up on the barking of dogs and flashed the torch on which he found Ghulam Hussain son of Muhammad Kalhoro, Ismail, and Nooro armed with hatchets, Haji armed with Lathi while
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Saleh, Sadoro and Idress armed with guns standing there and dragging Mst. Amiran. Complainant, his sons brother and father challenged the accused, on that accused gave hatchet and Lathi blows. He (complainant) received the Lathi blows on his right hand and back. Accused Sadoro, Saleh and Idress directly fired from their guns which hit his father Khan Muhammad and Gulab. Due to fear they did not go near the accused who forcibly took away Mst. Amiran. On cries and gun reports Mehrab, Sarwar and other villagers came running and they also followed the accused. Accused on seeing them coming nearer, left Mst. Amiran at the call distance from complainant's house and went away firing in the air. Complainant went and narrated the incident to Nekmard Meeral Khan Kalhoro. Due to odd hours of the night and non-availability of conveyance complainant in the morning came to the police station alongwith injured Khan Muhammad, Ghulam Hyder, Gulab and Muhammad Nawaz where he lodged the report. The motive as alleged by the prosecution was that accused was suspecting complainant's son Muhammad Nawaz to be on illicit terms with Mst. Najma daughter of Muhammad and in order to take revenge they had caused them the injuries and abducted Mst. Amiran. 3. S.H.O. Muhammad Mithal after recording the F.I.R. Recorded the statement of Khan Muhammad, Ghulam Hyder, Gulab, Muhammad and prepared Mashirnama of injuries in presence of Mashir H.C. Qurban Ali and Shah Nawaz. The injured were referred to the hospital for their examination, treatment and certificate. S.H.O. In the company of complainant Photo visited the Wardat and prepared Mashirnama in presence of Muhammad Khan and Muhammad Aslam. S.H.O. Secured three empty cartridges from the place of Wardat and also torch produced by complainant and prepared such Mashirnama. S.H.O. Then recorded the statements of P.W. Meeral, Mst. Amiran, Mehrab, Ghulam Sarwar, Allah Bux and Shafi Muhammad. S.H.O. Also prepared Mashirnama where Mst. Amiran was stated to have been left by the accused. On 2-4-1981 S.H.O. Arrested Muhammad Idress, Saleh, Haji, Ghulam Hussain and prepared Mashirnama in presence of same Mashirs and on the same day accused Haji produced lathi, he secured the same and prepared the Mashirnama. Accused Ghulam Hussain produced hatchet in presence of same Mashirs, S.H.O. Secured the same and prepared Mashirnama. Accused Idress produced his licensed gun and licence book, he secured the same and prepared the Mashirnama in presence of same Mashirs. He also arrested accused Ismail and Nooro and prepared Mashirnama in presence of Mashir Lal Khan and Juman, he also secured hatchet from accused. Ismail and prepared Mashirnama in present of same Mashirs. He also secured hatchet from accused Nooro in presence of same Mashirs. After completion of formal investigation accused were challaned in the Court. The learned trial Court framed the charge for offence punishable under section 148, 307 read with section 149, P.P.C. And under section 11 of Zina (Enforcement of Hudood Ordinance, 1979), to which accused pleaded not guilty. 4. The prosecution in support of the case examined complainant Photo Exh.12, who produced F.I.R. At Exh.13, P.W. Ghulam Hyder Exh.14, Gulab Exh.15, Muhammad Nawaz Exh.16, Mehrab Exh.17, Meeral Exh.19 who produced Mashirnama of Wardat Exh.20, Mashirnama of securing torch from complainant Exh.21, Mashirnama from where Mst. Amiran was left by the accused Exh.22, Mashirnama of arrest of accused Idress, Saleh, Haji, Ghulam Exh.23, Mashirnama of recovery of Lathi from accused Haji Exh.24, Mashirnama of recovery of hatchet from accused Ghulam Hussain Exh.25, Mashirnama of recovery of gun and licence from accused Idress Exh.26, Mashirnama of arrest of accused Ismail and Nooro Exh.27, Mashirnama of recovery of hatchet from accused Ismail Exh.28, Mashimama of hatchet from accused Nooro Exh.29, Medical Officer Exh.32, Mst. Amiran Exh.33, S.H.O. Muhammad Mithal Exh.34, P.Ws. Ghulam Sarwar and Khan Muhammad were given up by learned APP and side of the prosecution was closed vide statement of APP Exh.36. Statement of the accused under section 342, Cr.P.C. Were recorded in which they denied the prosecution allegation and pleaded that they were innocent. Accused Idrees stated that on the date and time
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of incident he was present at Post Office at Radhan and produced certificate issued by Post Master Radhan Exh.41-A. After hearing the learned counsel for the State and the accused trial Court was pleased to convict the appellants as mentioned hereinabove. 5. I have heard Mr. Asif Ali Soomro learned counsel for appellants who contended that the ocular evidence is not in conformity with the medical evidence, that learned trial Court has wrongly discarded the evidence of Medical Officer Dr. Rafeeq Ahmed Memon. That the learned trial Court has failed to appreciate that the X-Ray reports, per se were not admissible in evidence and could have been used only as corroborative evidence. That learned trial Court has wrongly placed reliance on the evidence of prosecution witnesses complainant Photo, P.Ws. Gulab, Ghulam Hyder, Muhammad Nawaz, Mst. Amiran, Mehrab, Meeral and S.H.O. Muhammad Mithal, which is vitiated by the material contradictions, inter se basic improbabilities and that medical evidence is in conflict with the ocular version given by the P.Ws. That the learned trial Court has erroneously failed to appreciate that the prosecution has not produced any tangible circumstantial evidence to corroborate the ocular testimony of the P.Ws. That there is inconsistency in the evidence of P.Ws. As some of them had deposed that they identified the accused on torch light whereas others have stated that they identified them on the light of hurricane lamp. That the learned trial Court in its judgment has disbelieved the recovery whatsoever against the appellants. The benefit of which should have been given to the accused rather the learned trial Court has simply discarded the circumstantial evidence and convicted the appellants. 6. Mr. Abdul Fatah Mughal learned counsel for Additional A.-G. Has supported the judgment and contended that motive is mentioned in the F.I.R. Lodged by Photo that accused appellants have been named in the F.I.R. That accused/appellants have been assigned specific role by the prosecution witnesses and the evidence of the P.W. Is natural and inspire confidence. That Mst. Amiran was kidnapped from the house and she has supported the case of prosecution. 7. Mr. Asif Ali Soomro has referred 1983 SCM R 1292 (Bagh Ali v. Muhammad Anwar and others). ' Muhammad Anwar respondent was tried for the murder of Ghulam Muhammad and was sentenced to death, besides being directed to pay a fine of Rs,5,000 or in default to suffer rigorous imprisonment for two years by the learned Sessions Judge, Khairpur. This Court by its ,order dated 10-3-1983 allowed the appeal of Muhammad Anwar respondent setting aside his conviction awarded by the Sessions Judge, Khairpur. ' Bagh Ali petitioner approached the Supreme Court. The facts of this preferred case are that Bagh Ali brother of deceased Ghulam Muhammad lodged F.I.R. At P.S. Baberloi, Taluka Khairpur on 16-10- 1978 at 9-30 a.m. Stating therein that he was residing alongwith his brother Ghulam Nabi in a separate house, where his brother Ghulam Muhammad deceased and his younger brother were living with their father at a short distance from his house. Nikah of deceased with one Mst. Alman daughter of Muhammad Mithal Metolo was performed about 12 months before the marriage ceremony was to take place on the following day of occurrence. After performance of Nikah they had come to know that Muhammad Anwar was on terms of illicit intimacy with Mst. Alma. On the fateful day when Bagh Ali was sitting in his house at sunrise time, Ghulam Muhammad deceased and Ghulam Nabi went to their Juwar cultivation for cutting grass. After some time Ghulam Nabi came running and informed Bagh Ali that Ghulam Muhammad had been given hatchet blows by Muhammad Anwar accused in Juwar cultivation and he had fallen down with his head severed from the trunk of his body as a result of injuries. Ghulam Nabi informed Bagh Ali that he had placed the bundle of grass on his head when Muhammad Anwar accused appeared at spot armed with hatchet. Ghulam Muhammad asked accused Muhammad Anwar to help place the bundle of grass on his head. The latter did so and while deceased was holding the bundle with both his hands Muhammad Anwar gave hatchet blow on his neck whereupon deceased fell down and then two more blows were given by Muhammad Anwar to the deceased on his neck as a result of which his
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head was severed from his body. In this background F.I.R. Was lodged, Muhammad Anwar was convicted by the learned Sessions Judge, Khairpur and this Court allowed the appeal as referred hereinabove. The Honourable Supreme Court after considering the prosecution case, judgment of the trial Court and appeal decided by this Court observed as follows:--- "Evidence of the physical circumstances produced by the prosecution by way of corroboration apparently would not by itself be sufficient for conviction. In this case we find that the High Court on a proper assessm ent of the circumstances on record, came to the conclusion that evidence of Ghulam Nabi P.W. Was unreliable and not truthful. In this connection learned Judges have discarded the evidence of motive as unnatural and improbable. The version of Ghulam Nabi (P.W.) that the accused struck three blows with a hatchet on the neck of the deceased, one while he was in standing position and second when he was knocked down, appears to be in conflict with the medical evidence. The arguments of the learned counsel that it was for the accused to have clarified in his cross-examination from the doctor whether the injury found on the neck of the deceased could be result of a single blow is not tenable. There was an apparent contradiction in the doctor's saying that he found only one injury and the ocular testimony stating three injuries, which it was the obligation of the prosecution to clarify and not of the accused." (ii) 1983 PCr.LJ 1227 (Thargai alias Rifle alias Abdul Ghafoor v. The State). ' Fact in brief are that appellant suspected deceased Haji to be having illicit intimacy with Mst. Morzadi the wife of appellant on 17-10-1979 at 1-00 a.m. P.Ws. Mst. Zahra, Mst. Sharma and Allah Bakhsh, who are sister, mother-in-law and brother-in-law of Haji respectively, woke up on the cries and saw in the light of lamp, Thangai sitting on the chest of Haji and inflicting injuries with knife on his throat. Witnesses raised cries and attempted to catch him but he made his escape good leaving Haji in injured condition. Noor Muhammad Bugti and others were attracted on the cries and reached the spot after the departure of Thangai and were given facts of the incident by the eye- witnesses. Mst. Zahra carried the injured Haji in tractor with trolly arranged by Noor Muhammad to Police Station Baberloi and lodged the F.I.R. Injured Haji was then alive but was unconscious and could not speak. Such report was lodged by his sister Mst. Zahra. After lodging of the F.I.R. Injured was referred to hospital for examination, treatment and certificate. On the way to the Hospital Haji died. After lodging of the F.I.R. Thangai accused produced blood-stained knife which he took out from the box lying in his house and finally he was challaned in the Court. Where case proceeded and accused Thangai was convicted by the learned Ist Additional Sessions Judge, Khairpur for an offence under section 302, P.P.C. And sentenced with death and fine of Rs,5,000 in default of payment of fine R.I. For two years." ' The Division Bench of this Court consisting their Lordship Sajjad Ali Shah and Ali Nawaz Budhani, JJ. In appeal after considering/analysing ocular evidence and medical evidence observed as follows:- -- "In the judgment in the reported case references have been made to the textbooks on the point of identification in the light of moon, the concluding finding is that when the witnesses had admittedly awakened from sleep, they could have only a momentary glimpse of their assailants and such evidence is unsafe for recording a conviction in a murder case. In the instant case we hold that the claim of the eyewitnesses to have seen and identified the appellant on the spot in the circumstances and for the stated above on this point is not free from doubt." (iii) 1982 PCr.LJ 1325 (Gul Hassan and others v. The State): ' Decision of Division Bench of this Court consisting his Lordship Nasir Aslam Zahid (as he then was) and Ali Madad Shah, J. ' The prosecution story briefly is that deceased Laiq and his brother Ghazi were easing themselves apart from each other, in jungle near their village and on the eventful day in the morning hours. All of sudden there were cries by the Laiq son of Saindad Mashori. Ghazi his brother rushed to the spot
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and saw that all the four appellants were belabouring Laiq with hatchet blows. Two other persons Sikandar and Ahmed Mashories residents of the same village, who too were in the same jungle for easing themselves, were attracted by cries raised by Laiq (deceased) and they rushed to that place and witnessed the actual incident of assault on the deceased by the appellants. The appellants left Wardat declaring that they done deceased to death as he had married the daughter of one Khamiso, whose hand they were interested to have. Ghazi lodged the report at Dokri Police Station and police started investigation, Gul Hassan, Abdul Latif and Ahmed Ali appellants were arrested on 22-6-1982 and police also recovered from each of them a blood- stained hatchet. After final decision of investigation appellants were put on trial before the Court and learned 1st Additional Sessions Judge, Larkana 'convicted the appellants for an offence punishable under section 302 read with section 34, P.P.C. And sentenced each of them to life imprisonment and fine of Rs,10,000 in default of payment of fine R.I. For six months more. While hearing the appeal and considering the evidence the learned D.B. Was pleased to observe as: "It is the settled principle of law that evidence of witnesses is to be examined in the context of the facts and the circumstances of each case has its peculiar features. In the instant case the ocular evidence consists of three witnesses Ghazi complainant, Sikandar and Ahmad who are admittedly Telated to the deceased as indicated above. Their presence near the Wardat and eventful time for the purpose of seeing themselves in the jungle does not seem to be natural coincidence. They had been living in the big village and call of nature attending only them and none else was like a dramatic event. Of course, they have not been attributed any malice for falsely implicating the appellants and the number of the injuries found on the deceased as disclosed in the medical evidence gives impression that the deceased was done to death by more than one persons yet the version of their presence near the Wardat as to have been able to witness the incident is such that their evidence needs to be corroborated as to confirm its credibility." ' On recovery the observation of the learned Division Bench is as follows:--- "Mere recovery of hatchet without blood-stained does not constitute corroborative evidence." (iv) PLD 1988 Kar. 521 (Yousuf v. The State). ' In this matter two F.I.Rs, were lodged. First F.I.R. Was lodged in Crime No,148 of 1981 filed on 23-12- 1981 at Police Station Mehar by complainant Haji Jumo son of Haji Teveno for offences under sections 302, 307, 397, 394, P.P.C. And 17/3, Hudood Ordinance. According to F.I.R. Complainant Haji Jumo and his friend Bashir on 23-12-1981 at 10-00 p.m. On the top of the Saleh Shakh near village Allah Aando and Allah Dino Teveno met four persons who were sitting in hiding and were armed. They came out and surrendered the complainant and his companion, on the light of torch identified from them as Shafoo son of Arab Khoso armed with Trooh son of Arab Khoso armed with hatchet but did not identify the remaining two who were also armed with gun and hatchet respectively. Accused Trooh and another person asked complainant Haji Jumo and his companion Bashir to hand over cash and watches otherwise they will be murdered. Trooh robbed complainant of Rs,150 and Citizen Watch and his friend Rs,70 and his Camy Watch who handed over those articles to his brother Shafoo. Accused persons ordered complainant and his friend to remove the clothes upon which they raised cries which attracted to the spot persons from nearby village. On seeing witnesses coming near Shafoo and one other, persons who were armed with gun fired which accidentally hit Trooh and one other unidentified accused who was armed with hatchet and both of them fell down injured on the top. After that Shafoo and unidentified accused ran away. Witnesses Bachal, Allah Dino, Haji Qasim, Muhammad Yousuf and Mazar reached the spot who were appraised of the facts of the incident, went and saw Trooh having sustained gunshot injuries on the shoulder and was unconscious. The other injured was unidentified accused with hatchet, who had sustained gunshot injuries but was able to speak and gave his name as Ghulam Muhammad son of Muhammad by caste Garchal. Yousuf and Haji Qasim went to Village Khondi
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and brought a Jeep in which both the injured were taken to police station but on the way Trooh expired. Report of Haji Jumo complainant as stated above was registered by S.H.O. Abdul Razzaq of P.S. Mehar. Robbed property in the shape of two wrist watches, one of Westend Company and Camy Company valued at Rs,300 and Rs,200 respectively and cash of Rs,150 and Rs,70 was recovered. This F.I.R. Is Exh.9 on the record. S.H.O. After visiting the Wardat and after recording the statements of number of the witnesses and carrying progress of investigation further came to the conclusion that F.I.R. Bearing No,148 of 1981 was false and took steps for cancellation of that F.I.R. S.H.O. Himself became the complainant and filed second F.I.R. Being Crime No,1 of 1982 on 3-1-1982 for offence under sections 302, 307, 34, P.P.C. On the record Yousuf and Haji Jumo were shown as accused persons. The version in this F.I.R. Is that on 23-12-1981 in the morning Haji Jumo, his brother Yousuf and their friend Bashir went to the fair at Khairpur Nathan Shah. Jumo and Yousuf returned by Bus and at about 7-30 p.m. Got down at Burdo bridge. Trooh son of Arbab Khoso and Ghulam Muhammad Gachal were present there and all the four started going towards village Khondi by the Saleh Shakh. On the way there was exchange of harsh words and abuses between them after which Trooh and Ghulam Muhammad went to village Khondi while Haji Jumo and Yousuf went to their village. Yousuf took his licensed gun and Haji took his hatchet and concealed themselves in Saleh Shaikh at 2-00 p.m. Trooh and Ghulam Muhammad have reached there and were challenged by Haji Jumo and Yousuf. Yousuf fired from his gun at Trooh, who became injured and Ghulam Muhammad also sustained injuries from fire-arm. On the cries which attracted to the spot Haji Qasim, Bachal and Allah Dino who were appraised about the facts by Yousuf and Ghulam Muhammad, Trooh expired. In this background Yousuf appellant and co-accused Jumo were put on trial for an offence under sections 302, 307 read with section 34, P.P.C. For the murder of Trooh and causing injuries of P.W. Ghulam Muhammad. Learned 1st Additional Sessions Judge, Dadu convicted Yousuf and sentenced him to death and a fine of Rs,5,000 or in default to R.I. For six months. He was further convicted and sentenced to suffer R.I. For 7 years and fine of Rs,5,000 or in default R.I. For six months for causing injuries to P.W. Ghulam Muhammad. While co-accused Jumo was acquitted. ' In this background of the matter the rule laid down by the Division Bench consisting his lordship Sajjad Ali Shah and Saleem Akhtar (as they then were) is as follows: "It is held in the case of Sardar Baig v. State 1978 PCr.LJ 690, that if injured eye-witness stands clearly belied by medical evidence, then in those circumstances medical evidence is to be preferred and further it would be highly dangerous to rely upon evidence of such witness for the purpose of conviction. Injured eye-witness Ghulam Muhammad stated in his evidence that after the incident accused persons confessed to the witnesses that they had fought with deceased Trooh and him and there was no mention of extra-judicial confession by accused in the second F.I.R. Or statement of this witness recorded on 23-12-1981. I.O. Has confirmed this omission." ' P.W. Ghulam Muhammad also lied in his deposition when he stated on oath that after the incident deceased Trooh was semi-concious and witnesses talked with him. This is contrary to the prosecution case, which is to the effect that after the incident Trooh remained unconscious and died on the way in the Jeep." ' On the recovery of empties the observation of learned Division Bench is as under: "On this subject legal requirement is that if crime empty is recovered before recovery of weapon, then same should be sealed at once and sent to Ballistic Expert even without waiting for weapon because this would be best precaution to minimise chance of manipulation." 8. I would like to discuss the evidence and the conclusion arrived at by the learned trial Court. Admittedly this incident took place during night time at about midnight when P.Ws. Were sleeping, and woke up on the barking of dogs. No doubt in F.I.R. Photo complainant has stated that appellants were identified on the torch light, whereas in evidence recorded by trial Court he-
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stated, "we identified these persons on the light of hurricane lamp". Complainant was confronted in cross-examination by the learned counsel for accused and complainant replied, "I had stated in my F.I.R. That I identified the accused on the light of hurricane lamp". In order to introduce the hurricane lamp for the identification of appellants, complainant in his examination-in-chief stated: "Police did not immediately register my F.I.R. But they took notes of my statement which were not read over to me". My F.I.R. Was registered after the police visited the wardat. I produced the torch before police. Police received the hurricane lamp but was not secured. This version of the complainant is belied by Muhammad Mithal, I.O. Who stated, "I recorded the F.I.R. Of complainant Photo in 154, Cr.P.C. Book, read over the same to him and obtained his LTI. I see the F.I.R. Exh.13 which is same, correct and bears my signature". In cross-examination Muhammad…
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