Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ISMAIL AND 3 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Munawar Ali Khan Title: ISMAIL AND 3 Others vs THE STATE Case No.: Criminal Appeal No. 14 of 1982 Date of Judgment:1982-12-22 Reported As: 1983 P Cr. L J 823 Result: Appeal allowed
JUDGMENT
JUDGMENT This appeal arose out of the double murders of Mst. Sharma and her son Allahdino. Two appellants were convicted for these under sec--tion 302/34, P. P. C. And sentenced to life imprisonment and fine of Rs. 10,000 each or in default R. I. For two years by the Additional Sessions Judge, Jacobabad (Mr. Ghulam Muhammad Rajput) vide his Judgment dated 19th January, 1982. By the same judgment they were further convicted under section 307/34, P. P. C. And sentenced to R. I. For 7 years and fine of Rs. 1,000 or in default R. I. For six months. The sentences of imprisonment were ordered to run concurrently. It was further directed by the learned Judge that half of the fine imposed for the offence of murders, if realised, would be equally shared by the heirs of two deceased and half of the fine imposed for the offence of attempt to commit murder, if realized would be paid to injured Gul Hasan as compensation. 2. The earliest version of the incident as described in the F. I. R. Is that on 25-4-1973, at 4-30 p.m. The complainant Shafi Muhammad was in his house when he heard gunshots and cries from Dera (heap of crop). He ran towards that direction and saw four persons namely Ismail, Ibrahim, Isso, and Dhani Bux firing guns. He challenged the gunmen who retorted that if he came near them, he would be done to death. After the gunmen decamped the complainant went closer to the dera where he found Mst. Sharma lying dead on account of gun-shot injuries she had received and near her were lying Allahdino her son and Gal Hasan also having been injured by the firing. Jan Muhammad, another son of deceased Sharma, who was standing at the wardat informed the complainant that while he, his mother and the two injured persons were busy winnowing the crop, the aforesaid gunmen came suddenly out of their houses which situate near the wardat and started firing indiscrimi--nately at them and the gunshots hit his mother Mst. Sharma who fell
---
## Page 2
down and died. He further told the complainant that Allahdino and Gul Hasan were a13o injured by the shots. The complainant had the dead body of Mst. Sharma as well as two injured persons removed to the house and leaving Jan Muhammad to look after the dead body he went to the Police Station Karim Bux 12 miles away from the wardat for report which was registered on the same day at 8-00 p.m. 3. Muhammad Azim who was S. H. O. At Police Station Karim Bux recorded the F. I. R. Thereafter he accompanied by his subordinate staff proceeded to the place of occurrence. On the way at Sunhri bridge he came across a bus which was bringing injured Allabdino and Gal Hasan. He stopped the bus and noted the, injuries of Allahdino and Gal Hassan in presence of mashirs Sher Khan and Lal Khan. He also recorded statements of both the injured persons who were then referred to the Civil Hospital Jacobabad for treatment and certificate. As the S. H. O. Reached the wardat at odd hour of the night, he postponed inspection of the same of the next morning. In the meantime he prepared inquest report of the dead body of Mst. Sharma which had already been removed to her house, in presence of aforementioned mashirs and despatched the dead body through P. C. Dost Muhammad to the Medical Officer Thul for post-mortem examination. In the following morning he inspected the scene of occurrence which situate in the `Dera' near the house of injured Gal Hasan. Five empties and blood--stained earth were secured from the wardat which were separately sealed by the S. H. O. In presence of the above mashirs. On the same day at 2-00 p.m. He arrested all the accused appellants in presence of mashirs Sher Khan and Iqbal. The accused Ibrahim is stated to have led the police party to his house and produced before the police his licensed gun which he dug out from under the rubbish stocked behind his house. Alongwith the gun he also produced its licence and 8 live cartridges which were all secured and sealed at the spot in presence of same mashirs. 4. On the other hand, in the meantime, Muhammad Umar A. S. I. Of Police Station, Jacobabad City had got recorded the dying declaration of the injured Allahdino through Head Munshi and III Class Magistrate Jacobabad as soon as he received information from the Civil Hospital that the condi-- tion of Allahdino had worsened. On 27-4-1973 the S. H. O. Muhammad Azim received the dying declaration of Allahdino and other papers connected therewith from the said A. S.1. On 3-5-1973 the S. H. O. Recorded the statement of Jan Muhammad and produced him before the Mukhtiarkar and F. C. M. Jacobabad for his statement under s6c-tion 164, Cr. P. C. On 11-5-1973 he submitted interim challan in the Court and also arranged to send blood-stained earth to the Chemical Examiner and the gun and empties to the Ballistic expert. O& 27-7-1973 be submitted the final challan against the accused. 5. Dr. Amarlal Medical Officer, Thal who conducted the autopsy of the dead body of Mst. Sharma found two injuries on her person in course of external examination. He has described the said injuries as under :- (1) One circular contused wound J-- in diameter on the right eye-ball-eye ball ruptured. (2) One circular contused wound -- in diameter on the right parietal region bone scalp deep-bone fractured. 6. These injuries in his opinion were ante-mortem and were caused by discharge from fire-arm. According to him the death of the deceased was result of shock and haemorrhage produced by injury No. 2 which was individually sufficient to cause death. The doctor also noticed internal damage having occurred to the brain etc. Of the deceased. 7. Although it appears from the evidence of the doctor that Mst. Sharma died of the injuries found on her person, the description of the injuries given by the doctor as contused wounds does not appear to tally with the weapon namely gun which, he has stated, was used in causing the said injuries. To my mind it was through oversight that the doctor had described the injuries as
---
## Page 3
contused wounds instead of lacerated wounds. In any case I have no doubt that the deceased Mst. Sharma died of the injuries found on her person. 8. The injured Allahdino and Gal Hasan, who as stated above, were referred to Civil Hospital, Jacobabad were examined by then Medical Officer Dr. Moolchaud. Somehow Dr, Moolchand before his evidence was recorded in Court left for India on 'ex-Pakistan leave and did not return thereafter. Dr. Manzoor Ahmed of the same Hospital was, therefore, examined by the prosecution to prove the medical certificates issued by Dr. Moolchand and Dr. Manzoor Ahmed (Exh. 34) has stated on oath that he and Dr. Mool--chand had worked together in Civil Hospital, Jacobabad for considerable time and he was acquainted with the signature of Dr. Moolchand. He has further stated that two medical certificates Exhs. 35 and 36 were issued by Dr. Moolchand and bear his signature. He also told the Court that Dr. Mool--chand went to India on leave and thereafter he did not return nor there was any likelihood of his being returned. The two certificates produced by Dr. Manzoor Ahmed relate to the injuries found on the persons of Allahdino and Gul Hasan. The medical certificate Exh. 35 describes the injuries on Allahdino as under :- (1) A lacerated punctured type of wound J' in diameter with charring present on left side of chin. (2) A lacerated punctured type of wound I' in diameter on the lower part of left cheek with margins inverted. (3) A lacerated punctured type of wound -- in diameter with charring present and structure deep on right side of upper part of neck of left mandible and cervical spine. X-ray revealing fracture. According to the opinion expressed by the Doctor in the certificate the injuries Nos. 1 and 2 are grievous and caused by discharge from fire-arm. 9. The medical certificate Exh. 36 purporting to indicate injuries found on the person of Gul Hasan has been produced in torn condition. There--fore, neither the description of injuries nor the weapon used for causing the same can be ascertained from the certificate. 10. As for Allahdino deceased there is evidence to show that he was admitted in the hospital of Jacobabad in the injured condition. It is further stated that be was subsequently transferred for better treatment first to Jamshoro and then to Quetta. He, however, returned home after 5-6 months uncured. After his return he was alive for 8-10 days. There is no evidence to the effect that after' his demise any autopsy was conducted of his dead body and as such the medical evidence is lacking on the point that his death was the result of the injuries he had received. In absence of the medical evidence about the cause of his death it cannot be held with certainty that the injuries found on his person were responsible for his death. Nevertheless it is proved from the medical certificates Exh. 35 that the injuries on his person were caused by firm-arm and were of grievous nature. 11. So far Gul Hasan is concerned the prosecution case is that he too had sustained gunshot injuries and was referred to Civil Hospital, Jacobabad for certificate and treatment. His injuries as stated above were examined by Dr. Moolchand who issued the certificate Exh. 36. Dr. Moolchand having left for India permanently, the certificate issued by him was proved through Dr. Manzoor Ahmed who bad remained his colleague in the same hospital for pretty long time and, was therefore, conversant with his handwriting and signature. Since Dr. Moolchand was unlikely to return, the certificate issued by him would be admissible in evidence. But the certificate being torn it does not contain the necessary details about the number of injuries or the nature thereof or the weapon used in causing the said injuries. Thus, the medical certificate does not help the prosecution in proving the injuries on person of Gul Hasan and consequently no medical evidence is available as regards the injuries on person of Gul Hasan. Nevertheless A. S. I. Muhammad Umar Exh. 19) had noted his injuries when he got the opportunity to go to the Hospital in connection with recording of dying declaration of the injured Allahdino. He had examined the injuries of Gul Hasan in presence of mashirs Gul Muhammad and Abdul Rahim. The mashirnama prepared in this connection has
---
## Page 4
been produced as Exh. 25 which clearly supports the evidence of A. S. I. That Gul Hasan had one gun-shot injury below the left shoulder. Somehow neither of the mashirs has been examined in support, but the mashirnama referred to above has been produced by mashir Sher Khan who was not signatory to be mashirnama. According to Sher Khan the injuries on both Allahdino and Gul Hasan were examined by the police at village Sanhri Panwhar in his presence and the other mashir was Lal Khan. In this respect he finds support from S. H. O. Muhammad Azim who has confirmed that he had examined the injuries of the above two injured persons in presence of Sher Khan and Lal Khan at village Sanhri. The S. H. O. As well as mashir are however, silent as to whether any mashirnama was prepared on that occasion. It is thus clear that mashirnama Exh. 25 referred to above was neither prepared by the S. H. O. Nor prepared in presence of mashir. Sher Khan. It was prepared by A. S. I. Muhammad Umar after the injured's admission in the hospital in presence of different set of mashirs. Despite the above flaws I am convinced that even Gul Hasan had sustained gunshot injuries. 12. The next question to be answered in the case is whether accused/ appellants or any of them had caused injuries to Mst. Sharma, Allabdino and Gul Hasan. On this point the prosecution case rests on ocular evidence, dying declaration, recovery of incriminating articles and motive. 13. The evidence is given by complainant Sufi Muhammad (Exh. 15), Gul Hasan (Exh. 17) and Jan Muhammad (Exh. 18). Taking up the evidence of complainant Shafi Muhammad, it would appear from his state--ment that he was attracted to the wardat which was at a distance of 12, paces from his house on commotion and gun reports and found Mst. Sharma, Allahdino and Gul Hasan lying on the ground with all the four appellants armed with guns standing there. They are alleged to have threatened the complainant with dire consequences if he dared to go near them he also heard them declaring that they had avenged the murder of Mulla Hussain. After the accused/appellants decamped they contacted Jan Muhammad who was also standing at the wardat and learnt from him that while he and his mother Mst. Sharma and Allahdino and Gul Hasan were engaged in thrashing the crop the accused/appellants arrived with guns and started firing at them and as a result of their firing although the witness himself escaped unhurt, his other companions sustained injuries. It is in evidence of the complainant that Mst. Sharma had died of the injuries. 14. The learned counsel for the appellants has attacked the evidence of the complainant as a bundle of lies as according to him he had not witnessed the incident and in any case he had arrived at the wardat much after the accused/appellants had left there. On careful perusal of the statement of the complainant it would appear that it is admitted by him in cross-examination that when he was examined in the lower Court he had stated that he was working as tailor in Sulleman Khoso village. But at another place he has stated that he had given up tailoring by the time his evidence was recorded in the lower Court and that he was jobless at the time of occurrence. When he was confronted with his statement in the lower Court, he denied having stated therein that when he saw the accused/appellants they were running away, even though he has said so in the lower Court. As against his statement in trial Court that Allahdino and Gul Hasan were not referred to the Hospital by Police, his statement in lower Court is to the effect that they were got removed by police after sunset. Apart from the above inconsistencies, his evidence in Court stands in sharp contrast with his earlier statement in the F. I. R. His statement in Court does not indicate that he challenged the accused whereas in F. I. R. He has stated that on seeing the accused he had thrown challenge at them. As per F. I. R. He saw the accused firing guns but he has not said so in Court. He has stated in F. I. R. That he went to the police station for lodging report after having the injured Allahdino and Gul Hasan and dead body of Mst. Sharma removed to the house, whereas, in the Court statement he has denied their removal from wardat before his departure for the police station. The F. I. R. Does not show that the com--plainant had talked to Allahdino and Gul Hasan,
---
## Page 5
beside Jan Muhammad before he left for the police station, though he has stated in the Court that they too apprised him of the facts. In view of these circumstances the learned counsel for the appellant is correct in pointing out that it' is doubtful if the complainant had come to the wardat in time to see the assailants. 15. Another eye-witness is Jan Muhammad (Exb. 18), who has impli--cated all the accused/appellants by stating that while he, his mother Mst. Sharma, Allahdino and Gul Hasan were thrashing the crop, all the four appellants came there with guns and proclaimed their intention to avenge the murder of Mulla Hussain and open fire at them as a result of which Mst. Sharma, Allahdino and Gul Hasan sustained injuries. The learned counsel for the appellants has submitted that even this witness had not seen the occurrence. His contention is that if Jan had been available at wardat, as has been claimed by him, there was no reason why his statement had been recorded by the police after 8 days from the incident. Admit--tedly his statement was recorded on 3-5-1973 whereas the incident took place on 25-4-1973. Jan Muhammad has admitted in his evidence that he was available in his house sitting over the dead body of his mother Mst. Sharma when police arrived there. It is further admitted by him that despite his presence at the wardat, he was not examined by police and his statement was recorded 5-8 days after the incident at Jacobabad. No explanation has been furnished for the delay in recording the statement of Jan Muhammad. The learned counsel has placed reliance on some precedent cases to show that if recording of statement of any eye-witness is delayed without any plausible explanation, his evidence is ruled out of consideration. The first case referred in this connection is Budho v. The State (PLD 1963 Kar. 76) wherein the statement of an eye-witness recorded after four days from the incident was ruled out of consideration. 16. In another case of Gul Muhammad alias Gulo and another v. The State (1974 P. Cr. L J 400) two eye-witnesses did not report the incident to any one and remained silent for the whole night and came to the scene of offence next morning when police recorded their statement. It was held :- "There is also law on the point that an eye-witness who keeps silent after having seen the incident ought not to be relied upon and this law need not be reproduced here. We are, therefore, of the opinion that the two alleged eye-witnesses produced by the prosecution are not reliable at all and their testimony is to be kept out of consideration." 17. In the case of Qabil Shah and others v. The State (PLD 1960 Kar. 697) the veracity of an eye- witness who was examined about 48 hours after the occurrence was held not to be above board. 18. In the next case of Wali Muhammad v. The State (1982 P Cr. L J 798) the statement of sole prosecution witness was recorded 7 days after lodging of F. I. R. And no explanation was offered for such delay, the evidence of such witness was not held sufficient to uphold the conviction of the accused. 19. In the case of Sikandar v. The State (PLD 1963 SC 17) there was a controversy as to when the statement of one eye-witness was recorded. The choice lay between believing the version of the eye-witness concerned and relying on the word of the investigating officer. The Supreme Court took the view that in such a case benefit of doubt must go in favour of the accused and accord-- ingly it was doubtful if the eye-witness was true witness. 20. The above reported case of Sikandar v. The State was followed in the case of Serajuddin v. Kala and another (PLD 1964 SC 26) wherein it was held :- "Indeed in a recent murder case from this very area in Lahore City namely Police Post Masti Gate and at about same time this Court, in a published judgment viz. Sikandarali v. The State PLD 1963 SC 17 found it necessary to reject the evidence of a witness (that of other witnesses having been disbelieved by the Courts below) by reason of patent doubt as to the time when he first appeared before police."
---
## Page 6
21. Keeping in view the principle laid down in the above authorities the evidence of Jan Muhammad whose statement was recorded after the delay of 8 days from the incident without any explanation having been offered cannot but be ruled out of consideration. 22. The third eye-witness is Gul Hasan (EK5. 17) who was admittedly injured in course of the incident and as such his presence at the time of occurrence cannot be doubted. This witness too has implicated all the four appellants having fired gun shots and causing injuries to him and Allahdino and Mst. Sharma. He has also confirmed that on cries the complainant was attracted. The learned counsel has contended that in view of the admitted relationship of this witness with other two eye- witnesses namely complainant and P. W. Jan Muhammad and also with the deceased Mst. Sharma and Allahdino and the admitted animosity between the parties no safe reliance can be placed on his testimony. It is no doubt, admitted that all the three eye--witnesses including Gul Hasan are close blood relations. Deceased Mst. Sharma was aunt of eye-witness Gul Hasan and deceased Allahdino and eye-witness Jan Muhammad are her sons. So far complainant Shafi Muhammad is concerned he is admittedly cousin of Gul Hasan. The accused/appellants in their statements under section 342, Cr. P. C. Have made complete denial of the prosecution allegations adding therein that they have been victimised on account of enmity. Although they have not elaborated the cause of the alleged enmity, two of the above eye-witnesses have deposed to the background leading to the strained relations between the parties. In this connection the complainant Shafi Muhammad has stated :- ---About 6 months prior to this incident Mulla Hussain father of accused Ibrahim and Ismail, grandfather of accused Isso and uncle of accused Dhani Bux was murdered and in that case my cousin Ghulam Mustafa, brother of Gul Hasan, nephew of Mst. Sharma and `Puphat' of deceased Allahdino was challenged alongwith one Muhammad our caste-fellow." 23. The above statement is corroborated by Gul Hasan who has further added that the accused party in order to avenge the murder of Mulla Hussain bad resorted to indiscriminate firing at them in retaliation. The prosecu--tion have however relied on this evidence of complainant and Gul Hasan as motive. Thus, the accused's allegation about the existence of enmity between the parties prior to the occurrence goes unchallenged. In other words the relations between the parties were embittered ever since the murder of Mulla Hussain. 24. The learned counsel for appellants has submitted that no reliance can be placed on the evidence of such witnesses who are not only inter--related but are also inimically disposed towards the accused persons, in absence of independent corroboration. To reinforce his arguments in this connection be has relied upon (1) Thoba and another v. The State PLD 1963 SC 40, (2) Baghali and 4 others v. The State PLD 1973 SC 321, (3) Muhammad Nawaz v. Abdul Khalik and others 1971 SCMR, 500, (4) Wasiullah v. Mirza All and others PLD 1963 SC 25, and (5) Hazratullah and another v. The State 1969 P Cr. L J 138. 25. In the first case it was held "This was pre-eminently a case where, in the total absence of physical circumstances to connect the two accused persons with the crime and there being no proximate motive for the attack, the existence of feud based enmity operated as strongly to explain the implication of the two accused persons, as it did to support the allegation of an unprovoked attack by them upon a feudal enemy. In that situation ocular evidence, to carry conviction on a capital charge must come from an unimpeachable source, or if such a source be not available it must be supported by some strong circumstances, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected." 26. The proposition laid down in the Thoba's case was reiterated in the second case as follows :-
---
## Page 7
"As has been pointed out by this Court in the case of Thoba v. The State PLD 1963 SC 40 the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circum--stances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity.. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source be not available, then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence must necessarily create." 27. In the third case while evaluating the evidence of interested witnesses with inimical bent of mind, it was held :- "The prosecution case rested on the ocular evidence of P. Ws. 11, 13, 14, 15, 17 and 18 all of whom are found to be not only related inter se but also with the deceased and are thus interested persons. There is also enmity between them and respondents Karamullah, Sultan and Abdul Khalik. In these circumstances the learned Judges of the High Court rightly held that the evidence of these witnesses required some corroboration to ensure that they were speaking the truth." 28. In the fourth case their Lordships of the Supreme Court stated that where the evidence of eye- witnesses consisted of enemies of the persons charged, it was proper to ask that the evidence in corroboration should be exceptionally strong and almost, if not quite, sufficient by itself to establish the guilt of individual accused person beyond reasonable doubt. 29. In the fifth case the Supreme Court observed that it was unsafe to base conviction of an accused person on a capital charge only on testimony of highly interested witnesses…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.