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Petitioner: RAEESUDDIN and 2 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Allah Dino G. Memon Title: RAEESUDDIN and 2 others vs THE STATE Case No.:Criminal Appeals Nos. 72 and 73, Criminal Revisions Nos. 18 and 34 and
JUDGMENT
Reported As: 1990 P Cr. L J 506 Result: Appeal accepted Judgment JUDGMENT ' ALLAHDINO G. MEMON, J.--- In Criminal Appeal No, 72 of 1988 appellants Raisuddin, Najamuddin, Jawed and their brother Shakecluddin (since acquitted) were tried before the IIIrd Additional Sessions Judge (East), Karachi, under sections 302, 307, 34, P.P.C. Who has convicted appellant Jawed under section 302/34, P.P.C. And sentenced him to suffer imprisonment for life and to pay fine of Rs,5,000 in default whereof he was to undergo further R.I. For six months. Fine if realized a sum of Rs,3,000 was to he paid to the heirs of deceased Muhammad Shafi under section 544-A, Cr.P.C., while accused Raisuddin and Najmuddin were convicted under section 307 read with section 34, P.P.C. And sentenced to undergo R.I. For seven years each and to pay fine of Rs,2,000 each or in default to undergo R.I. For six months more. Fine if realized from both the accused the same was to be paid to injured Nom Muhammad as compensation under section 544-A, Cr.P.C., while co-accused Shakecluddin was acquitted vide judgment, dated 30th April, 1988. ' In Criminal Appeal No, 73 of 1983 appellant Raisuddin was tried under section 13-E before the IIIrd Additional Sessions Judge (East), Karachi, who has convicted and sentenced him to suffer R.I. For three years. However, this sentence was ordered to run concurrently with the sentence awarded under section 307/34, P.P.C. Which is subject-matter in Criminal Appeal No, 72 of 1988. ' Criminal Acquittal Appeal No, 179 of 1983 has been filed by the State against the acquittal of accused Shakeeluddin Baroque, whereas Criminal Revision No, 18 of 1983 has been filed for the enhancement of sentence of accused Javed, Raisuddin and Najmuddin. ' Criminal Revision No, 34 of 1988 has been filed by complainant Raisuddin and others against the acquittal of accused Noor Muhammad and others.
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' The brief facts of the prosecution case are that on 9-8-1983 complainant Noor Muhammad son of Sher Muhammad, resident of Quarter No, H-413, Korangi Karachi and deceased Muhammad Shafi were brought to the Jinnah Hospital, Karachi. The Medical Officer informed the Duty Officer, Police Station Korangi, Karachi and A.S.I. Adalat Khan went to the hospital and recorded the statement of complainant Noor Muhammad under section 154, Cr.P.C. Which reads as under:- "I reside on the above mentioned address alongwith my parents and my sister, brothers, and I used to make badges etc. In a house which I have taken on rent basis in the `Mohalla'. Tonight at about 1-1/2 o'clock, when electric supply had failed and we and other Nohalla people' were sitting outside the houses, due to heat where Najamuddin, Jawed and Raees, the three brothers were also sitting there. In the meantime those three brothers during conversation taunted me that 3/4 years hack your father had suffered knife injuries at the hands of one Azad and even after that your father apologized and had compromised with the said person. And they asked that they used to bring medicine for my father at that time and the payment whereof is not paid yet. And they demanded the said payment. On this affair the dispute arose and those three brothers gave me beating with slaps and fist blows, whereupon Mohalla people intervened and separated us. I had lodged the report of the said occurrence at the police station, and thereafter I returned to my house and slept. In the morning at about 6-1/2 o'clock, when I was going from my house towards hotel for taking milk, while passing in front of the Quarter No, 403/H of Najamuddin, accused, Najamuddin, Jawaid, Raees and Shakeel caught hold of me in the lane in front of their house. Races inflicted me a dagger blow saying 'kill him today which I received on my chest on the right side. I raised cries whereupon my (maternal) uncle Muhammad Shafi came there but Najamuddin who was armed with `Sarya' (Iron bar), holding in his hand, caught hold of him (Muhammad Shafi) and Jawaid inflicted knife blow to my (maternal) uncle Muhammad Shafi which hit him on the front side of his neck at aorta the great artery and on ribs. In the meanwhile my another maternal-uncle Muhammad Rafique also came there to rescue but he was also beaten. After seeing this occurrence Ismail, Waseem, Muhammad Ameen, Muhammad Yaseen Yaqoob and other people came and intervened and saved us. And thereafter Muhammad Yaseen, Yaqoob, and Ismail got boarded me and my maternal-uncle Muhammad Shall in a Taxi and brought us to Jinnah Hospital. I had received dagger blows on the chest and `Sarya' (Iron bar) blows injuries on my left arm. My maternal-uncle Muhammad Shall receive injury on his aorta (the great artery), and on his body, due to which he died. My another maternal-uncle Muhammad Rafique also received injuries. My complaint is against the (said) four brothers for attacking me, my maternal-uncle Muhammad Shafi and my maternal-uncle Muhammad Rafique with intention to kill us and to kill my uncle Muhammad Shafi." ' This statement was sent to police station through constable Khizar Hayat No, 10967 for registration of the F.I.R. The above statement was recorded by A.S.I. Iqbal in 154 book and the same has been produced as Exh.28. After sending the statement of Noor Muhammad to police station for registration of the case A.S.I. Adalat Khan gave a letter, to the Medical Officer for permission to record statement of injured Noor Muhammad, who endorsed that injured Noor Muhammad was fit to give his statement, the said letter has been produced as Exh.26. He then recorded the statement of injured Noor Muhammad verbatim which has been produced as Exh.14. Thereafter S.H.O. Ch. Muhammad Ashraf P.W.14 went to the J.P.M.C. Mortuary where he found dead body of deceased Muhammad Shall. He prepared the Mashirnama of inspection of dead body before witnesses Muhammad Yaqoob and Muhammad Yasin, and the Mashirnama has been produced as Exh.19. He also held inquest over the dead body of deceased Muhammad Shall before the same witnesses and inquest report has been produced as Exh.20. He then requested the Medical Officer to hold post-mortem examination of dead body and detailed Police Constable Khizar Hayat to get the dead body after post-mortem and the same may be handed over to its relations. He then went to
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the place of Wardat and prepared such Mashirnama in presence of witnesses Muhammad Ayub and Saleem, the Mashirnama has been produced as Exh.31. He secured 8 blood-stained stones and one blood-stained cement block from the place of Wardat. He recorded statements of P.Ws. Muhammad Ayub, Saleemuddin, Fateh Muhammad, Muhammad Yaqoob, Muhammad Yasin, Muhammad Ismail, Ghulam Nabi, Abdul Aziz, Shabbir Ahmed and Muhammad Rafique. On the same day at about 2-00 p.m. He arrested three accused namely, Raisuddin, Javed and Najamuddin in front of their house under Mashirnama which has been produced as Exh.17-A. At about 2-13 p.m. On the same day accused Raisuddin produced Khanjar (dagger) from the Almirah lying in his house in presence of witnesses Muhammad Waseem and Muhammad Amin. He secured the same and prepared such Mashirnama which has been produced as Exh.17-B. He registered a separate case against accused Raisuddin under section 13-D of the Arms Ordinance after his return to police station. Accused Javed produced a blood-stained Chhuri from the back of Almirah lying in his house, while accused Najmuddin produced an iron rod from the same place in presence of witnesses Muhammad Amin and Muhammad Waseem. He prepared such Mashirnama which has been produced as Exh.17-C. All three accused had injuries on their person and therefore, they were referred to the hospital for treatment. The blood-stained clothes of complainant Noor Muhammad were produced by one Muhammad Rafique before him in presence of witnesses Muhammad Yasin and Muhammad Ismail which were secured and sealed under Mashirnama, the Mashirnama has been produced as Exh.51. He then handed over all the blood- stained articles to the Head Muharrer for sending the same to the Chemical Examiner for examination and report. On 10th August, 1983 he went to J.P.M.C. Karachi and recorded further statement of complainant Noor Muhammad because he was admitted in the hospital. He also recorded statement of P.W. Fateh Muhammad. On 13-91984 accused Raisuddin produced an application before Ch. Muhammad Ashraf S.H.O. Korangi, which was incorporated in 154, Cr.P.C. Book as a counter-case. The application moved by Raisuddin reads as under:- "Janab Incharge Sahib, Korangi Police Station, Karachi. ' This is to request that on 9-8-1983 in the night time a quarrel took place between my brother Jawaid and Noor Muhammad and his maternal-uncle Rafique over giving and taking of money but the Mohalla people intervened and pacified. ' On 9-8-1983 at about 6-30 a.m. While I and my two brothers Jawaid and Najamuddin were sleeping in our house, all of a sudden (1) Noor Muhammad, (2) Muhammad Shafi, (3) Muhammad Rafique, (4) Muhammad Ismail, (5) Muhammad Ayoob, (6) Saleemuddin, (7) Din Muhammad, (8) Muhammad Yaseen, (9) Bashir Ahmed, (10) Abdul Aziz, (11) Ghulam Nabi, (12) Muhammad Yakoob and (13) Fatch Muhammad duly armed with Lathis, Sarya, knives and hatchets after forming unlawful assembly with common intention to kill, used abusive language, entered in my house, and started beating me and my two brothers with the result we sustained serious injuries on our body. In the meanwhile witnesses, Razaque, Khurshid, Farooque, Sabir and Shakir came and intervened, they also saw the incident. I alongwith my two brothers immediately went to Police Station Korangi where we were arrested by the police, and since we were seriously injured the police referred us to hospital for medical examination and we were treated by the hospital through medical certificate vide M.C. No, 4437, 4438 and 4439. As per medical certificate injury No,2 sustained by me was declared as grievous and injury No,2 substained by Jawaid was declared having been caused by sharp-edged weapon. Since we all brothers were under custody therefore, could not approach police and our brother Jawaid is still in judicial custody, and I after release on bail approached the police against the above accused persons for making attack and causing grievous and simple injuries to all of us after forming unlawful assembly with full preparation having common intention along with deadly weapons by entering in my house, action may kindly be taken." ' After necessary investigation the parties were challaned before the Court on 20-8-1983.
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' A formal charge was framed against the appellants and co-accused to which they pleaded not guilty. ' In Criminal Appeal No, 72 of 1988 the prosecution examined complainant Noor Muhammad P.W.1, he has produced entry containing his complaint regarding incident which took place during night on 9-8-1983, as Exh.13 and his statement recorded under section 154, Cr.P.C. As Exh.14. Muhammad Ismail an eye-witness P.W.2, Ghulam Nabi an eye-witness P.W.3. Muhammad Waseem son of Muhammad Naim an eye-witness and Mashir P.W.4, he has produced Mashirnama of arrest of 3 accused/appellants as Exh.17-A, Mashirnama regarding production of blood-stained dagger from appellant Raisuddin as Exh.17-B, Mashirnama regarding production of iron rod by accused Najamuddin as Exh.17-C, Mashirnama of production of blood-stained Chhuri by Jawaid as Exh.17-D, Muhammad Yaqoob an eye-witness P.W.5, he has produced Mashirnama regarding examination of dead body as Exh.19 and inquest report as Exh.20. A.S.I. Adalat Khan P.W.6, he has produced the copy of message received by him from Medical Officer which was recorded in Roznamcha maintained at police station as Exh.25. Letter seeking permission from Medical Officer to record statement of complainant Noor Muhammad with endorsement of medical officer as Exh.27, A.S.I. Muhammad Iqbal P.W.7, he had incorporated the statement of complainant Noor Muhammad in 154, Cr.P.C. Book which he has produced as Exh.28. A.S.I. Asrarul Hague P.W.8, he has produced the entry dated 9-8-1983 regarding complaint lodged by Noor Muhammad complainant at 2-30 a.m. Mashir Muhammad Ayub P.W.9, he has produced Mashirnama of place of Wardat and securing of cement block and small stone as Exh.31, Abdul Aziz an eye-witness P.W.10, Medico-legal Officer, Kamaluddin P.W.11, he had examined injured Muhammad Shafi and complainant Noor Muhammad, he has produced the medical certificates as Exh.34 and Exh.35. He has also produced supplementary certificate with regard to the nature of injury on the person of Noor Muhammad as Exh.35-A, case-sheet of injured Noor Muhammad containing twenty pages and thirteen X-ray films Exh.35-B, statement of D.P.P. Giving up P.Ws. Salimuddin, Muhammad Amin, Fateh Muhammad, Muhammad Rafique as Exh.36, Court witness No,1, Muhammad Aslam P.C. He was given process regarding service on Dr. Zulfiqar Ali but the same could not be served and, therefore, it was returned hack, as such, with endorsement as Exh.38. An application under section 540, Cr.P.C. Requesting the Court to direct Police Surgeon to depute any other doctor to produce the post- mortem report as Dr. Zulfiqar was not available as Exh.39, Dr. Khalil Ansari, Assistant Police Surgeon J.P.M.C. P.W.12, he has produced the post-mortem report as Exh.41, and medical certificate No, 4432/83; regarding injuries on the person of Muhammad Rafique as Exh.42, Dr. Capt. Bashir P.W.13, he has produced Medical Certificate regarding injured/accused Raisuddin as Exhs.44 and 45, accused Najmuddin as Exhs.46 and 47, accused Javed Ahmed as Exhs.48 and 49, S.H.O. Ch. Muhammad Ashraf P.W.14, he had carried on investigation and challaned the appellants. He has produced the chemical examiner's report as Exh.52; he has also produced F.I.R. Recorded by him on the basis of application moved by Raisuddin Exh.35, copy of charge-sheet in the case, filed by accused Raisuddin as Exh.54. ' After close of the prosecution case, the statements of appellants and co-accused Shakiluddin were recorded under section 342, Cr.P.C. In which they have denied the allegations. The appellants also examined Mr. Muhammad Shahzad Hussain Siddiqui, Advocate, Bahawalpur, D.W.1, he has produced Agreement of Sale executed in favour of accused Shakeel by Mst. Maqsood Jehan in respect of Quarter No,31, situated in Quetta Town, Karachi as Exh.62, Receipt of Rs,2,000 as earnest money by Maqsood Jehan from appellant Shakiluddin as Exh.63, photostat copy of allotment order as Exh.64, and original allotment order as Exh.65. Appellant Raisuddin Farooqui D.W.2 appellant Najmuddin D.W.3, Muhammad Ismail D.W.4, Sub-Inspector Ghulam Jillani D.W.5, he has produced leave application of Shakiluddin as Exh.71, entry regarding leaving the duty by Shakiluddin as Exh.73, appellant Shakiluddin D.W.6, he has produced copy of his application for leave as Exh.74. Part II
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statement regarding grant of leave on 168-1983 as Exh.75, Abdul Qayum D.W.7, appellant Javed Farooqui D.W.8, Ajmal Hussain, Petition Writer, Bahawalpur D.W.9, he has produced the original register in which entries regarding documents written by him are being kept, and the entry has been produced as Exh.79, Sajjad Hussain clerk of Mr. Muhammad Shahzad Hussain Siddiqui, Advocate, D.W.10 he has produced his affidavit as Exh.81. ' Dr. Kamaluddin P.W.11 has deposed that on 9-8-1983 he was posted as Medico-legal Officer at J.P.M.C. At about 7-10 a.m. Two injured persons namely Muhammad Shafi and Noor Muhammad were brought to the hospital by Muhammad Yasin. First he examined injured Muhammad Shafi soh of Abdul Ghafoor and found the following injuries on his person:-- (1) Incised wound 1" x 1/2" cutting neck structure at front of neck. (2) Incised wound 1" x 1/4" cavity deep at right side of the chest posteriorly. (3) Lacerated wound 1" x 1/2" scalp deep at right front of temporal region. ' The general condition of the patient was not satisfactory. He was unconscious, forthy secretions were coming out from his mouth and nose and pulse was week. Blood pressure was not recordable, pupils were dilated. Necessary first aid was given to the injured but unfortunately he died at 7-20 a.m. The above injuries were fresh. The injuries Nos. 1 and 2 were caused by some sharp-edged substance while injury No,3 was caused by some hard and blunt substance. He had informed H.C. Muhammad Sharif No, 959 Korangi Police Station. ' INJURED NOOR MUHAMMAD. ' There was single injury. Incised wound 1-1/2" x 1/2" cavity deep at right side of upper chest interiorly/oblique in direction. Necessary treatment was given to the injured. He was admitted in Chest Surgical Ward No,21. The injury was fresh and was caused by sharp-edged substance. His general condition was not satisfactory. Patient was restless and looking anxious. Pulse was feeble, blood pressure not recorded but he was conscious oriented in time and space. He has produced the medico-legal Certificates Nos.4430 and 4431 as Exh.34 and Exh.35. He has further deposed that as per case sheet patient Noor Muhammad was admitted on 9-8-1983 and was discharged on 24- 9-1983. It was diagnosed haemothorax. Patient was operated on 31-8-1983, left sixth rib was removed, tear of liver was repaired. Blood clot removed from chest cavity and chest cavity was closed, as such, he was of the opinion that reserved injury is grievous/dangerous to life in nature. He has produced supplementary certificate as Exh.35-A. In his opinion there is clerical mistake of the words 'liver' instead of 'lung' as injury belongs to chest cavity so lung would have been damaged and repaired. ' Dr. Zulfiqar Ali, who had conducted post-mortem examination on the dead body of Muhammad Shall was not available and, therefore, Dr. Khalil Ansari P.W.12 was examined. According to Dr. Khalil Ansari he has been working as Assistant Police Surgeon in J.P.M.C. Karachi. He knew Dr. Zulfiqar Ali since last 7/8 years as he has been his colleague and had worked with him. He was fully conversant with the handwriting and signatures of Zulfiqar Ali who was also working in Medico- legal Section of J.P.M.C. On 9-8-1983, Dr. Zulfiqar Ali had conducted post-mortem examination of dead body of Muhammad Shafi son of Abdul Ghafoor. He started post-mortem at 12-45 p.m. And finished it at 2-15 p.m. He had issued such post-mortem report which he has produced as Exh.41. It was in his handwriting and also bears his signatures, On the same day, Dr. Zulfiqar Ali had examined one Muhammad Rafique son of Abdul Ghafoor and had issued M.L.C. No, 4432/83 in respect of injuries on the person of Muhammad Rafique and he has produced the certificate as Exh.32. In cross-examination he has deposed that he did not remember if he was working with Dr. Zulfiqar Ali in August, 1983. About two years back (witness) has joined J.P.M.C. Karachi. He has denied that he had not worked with Dr. Zulfiqar Ali (Note; the witness was examined on 7-12-1986). The post-mortem notes Exh.41 show that the following injuries were found on the person of deceased Muhammad Shafi.
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(1) Incised wound 1/2" x 1/2" on front of neck 2" below chin. (2) Incised wound 1/2" x 1/4" on the right and lower part of chest. ' From the external and internal examination of the dead body Dr. Zulfiqar Ali was of the opinion that the death of the deceased had occurred due to hemorrhage and shock due to cardio respiratory failure resulting from the above injuries which appeared to have been caused by sharp-cutting substance may be by knife or dagger. ' Dr. Capt. Bashir Ahmed, P.W.13 had examined accused/appellant Raisuddin, Najamuddin and Javed on 9-8-1983 at J.P.M.C. Karachi at 4-00 p.m. And had found the following injuries:-- (1) Lacerated wound 2" x 1/4" x scalp deep on the right parietal region. (2) complains of pain in the left middle and ring finger swelling and movement restricted. (3) Abrasion 1/4" x 1/4" on the front of right wrist. (4) Contusion 1-1/2" x 1/2" on the back of right shoulder. (5) Contusion 1-1/2" x 1" on the front of right arm. ' Injury No,2 is grievous while the rest were simple in nature. He has produced the medical certificate and supplementary report, as Exhs.44 and 45. 2. Najamuddin son of Nasiruddin. (1) Lacerated wound 1-1/2" X 1/2" x scalp on the centre of forehead. (2) Contusion 1/2" x 1/2" on the back of right elbow. (3) Complains of severe pain in the back of chest right side. (4) Complains of pain in the left shoulder movement normal. (5) Abrasion 1" x 1/2" on the front of left leg. (6) Complains of pain in the right big toe. (7) Lacerated wound 1/2" x 1/4" x skin deep on the right parietal region. ' The injuries were simple in nature and appeared to have been caused with blunt weapon. He has produced the medical certificate and supplementary certificate as Exh.46 and Exh.67. ' Javed Ahmed son of Nasiruddin. (1) Contusion 2" x 1" on the back of right forearm movement of elbow joint restricted. (2) Incised wound 1/2" x 1/4" x skin deep on the front of left elbow/in direction. (3) Lacerated wound 1/2" x 1/4" on the front of left index finger with swelling positive and restriction of movement. (4) Two abrasions each 2" x 1/2" on the left deltoid region. (5) Abraded contusion 1" x 1" on the right wrist. (6) Lacerated wound 1/2" x 1/4" on the tip of right thumb. (7) Lacerated wound 1/2" x 1/4" on the back of right index finger. (8) Abrasion 1/2" x 1/2" on the front of right knee. ' The injuries were fresh. Injury No,2 was caused by sharp-edged cutting weapon such as knife, blade or any other substance and rest appeared to have been caused by hard blunt weapon. He has produced medical certificate and supplementary certificate as Exh.48 and Exh.49. In cross- examination he has stated that he has not mentioned in the column that the injuries on the person of injured could be self-inflicted or by hand. He has admitted that he has not mentioned in his certificate that the said injuries could be caused by fall of stones. ' Complainant Noor Muhammad P.W.1 has supported the contents of his F.I.R. He has produced the entry No,73 dated 9-8-1983, from the station diary as Exh.13 regarding non-cognizable report lodged by him regarding earlier incident. He has also produced his statement which was recorded under section 154, Cr.P.C. As Exh.14. According to him, he was in the hospital for about 1/2 month and thereafter he was discharged. In cross-examination he has deposed that he had not mentioned the name of owner of the hotel from where he was going to purchase milk in his statement. The door of his house and that of the house of accused open in the same street. His house is separated
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by eight houses and one street from the house of the accused. He was going to purchase milk from Muhammad Sharif Mullah. He has denied that there is no hotel of Muhammad Sharif Mullah in the area. That hotel is situated in 'H' area. There is one Tara' (cattle pen) on the backside of house. The milk is available in that Tara'. His deceased uncle used to permanently reside in Sherabad, Landhi Colony, 'K' Area, Karachi. Police had recorded only his one statement i,e, Exh.14. He had not made any further statement before the police. Direct way to hotel of Muhammad Sharif Mullah was short which was adopted by him. There was other indirect way also leading to his hotel. He has denied that the hotel of Muhammad Sharif Mullah is not near the house of the accused. He has admitted that the way to the Tara' behind his house is shorter than the way to hotel of Muhammad Sharif Mullah near Quarter No,403, but shop of Shahzad is not there. He has admitted that the upper storey of Quarter No, 403 was not yet completely constructed, it was under construction. He had stated in Exh.13 that accused started beating him and that they passed circastic remarks that they had supplied medicine to his father who had apologized from one Azad even after sustaining injuries at his hands. It is correct that he had stated in the F.I.R. That he had sustained injuries on his chest with knife and on left arm with Saria. He had stated in F.I.R. That Shakil and Najmuddin were armed with Saria and they gave him Saria blows (There is a note from the Court confronted not so recorded). He had stated in the F.I.R. That Najmuddin gave Saria blows to his maternal-uncle (confronted not so recorded). He had stated in the F.I.R. That while he was saving his maternal- uncle Muhammad Shari accused Rais gave second blow with dagger on his neck (confronted not so recorded). He had stated in the F.I.R. That when his maternal- uncle Muhammad Rafi tried to intervene all accused had beaten him. (There is note confronted not so recorded). Many…
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