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Petitioner: WAHID BUX And 2 Others VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Mir Hazar Khan Khoso Title: WAHID BUX And 2 Others vs THE STATE Case No.: Criminal Appeal No.31 of 1990 Date of Judgment:1991-09-09 Reported As: 1992 P Cr. L J 187 Result: Appeal dismissed
JUDGMENT
JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J. -- The appellants were tried by Additional District and Sessions Judge, Usta Muhammad under section 302/34, P.P.C. And vide judgment, dated 21-6-1990 accused Wahid Bakhsh and Muhammad Rahim alias Rahim Bakhsh were sentenced to life imprisonment and to pay a fine of Rs.5,000 in default of payment of fine to further undergo six months' R.I., whereas accused Hussain Bakhsh was awarded seven years and a fine of Rs.1,000 and in default of payment of fine to undergo one month's R.I. However, benefit of section 382-B, Cr.P,C, was extended to them. According to the story of prosecution, on 28-12-1987 at 9/10 a.m. The complainant Manzoor Ali P.W.1 and his brother deceased Niaz Ali were present in their ---Otak--- in Goth Zulfiqar Ali Jamali when Hussain Bakhsh accused came there and asked the deceased to accompany him to his house in order to repair electric connection which had gone out of order. On this deceased with aforementioned accused left for his house, the complainant also followed them. As soon as they reached near heap of ---Palal--- accused Wahid Bakhsh and Rahim Bakhsh emerged there and as they were armed with shot guns, therefore, they opened fire at Niaz Ali resulting in his instantaneous death, in the meanwhile Hussain Bakhsh accused dragged out Mst. Shafi wife of his brother Amir Bakhsh from her house and other two accused persons also fired at her, resulting in her death. All the accused persons left the place of occurrence declaring that they had committed murder of both deceased on account of ---Siakari---. The incident was witnessed by P.W.2 Gul Hassan, P.W.3 Mst. Amiran and P.W.6 Didar Ali besides the complainant, the motive for committing murder of Niaz Ali deceased was that he was not obeying the dictates of accused persons as being ---Motbars---. The complainant reported the incident at
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Police Station Usta Muhammad which is situated at a distance of 14/15 miles from Goth Zulfiqar Ali Jamah on same day whereupon F.I.R. Exh.PA. Was recorded by P.W.10 S.H.O. Jamil Asghar. After recording F.I.R., S.H.O. Proceeded to the place of incident and found dead bodies of Niaz Ali and Mst. Shari lying at the place of Wardat, he inspected the site and prepared inspection note, Exh.P.E. And site plan as Exh.P.O., inquest report of dead bodies was also prepared as Exh.P.M. And Exh.P.N. Of Niaz Ali and Mst. Shafi respectively. Blood-stained earth beneath the dead bodies was also procured and sealed parcels were prepared vide inventory Exhs.P.F. And P.G. Six empties of .12 bore from the place o1 occurrence were also recovered as Articles 10 to 15 and sealed in a parcel vide inventory Exh.P.M. Dead bodies were removed to the civil hospital for post--mortem examination. The doctor handed over clothes of both deceased to S.H.O. Which were taken into possession vide memo. Exh.P.B. And Exh.P.C. The statements of witnesses were recorded under section 161, Cr.P.C. P.W. Jamil Asghar S.H.O. Arrested accused Wahid Bakhsh and Rahim Bakhsh on 30-12-1987, on 4-1- 1988 Wahid Bakhsh accused led the police to the recovery of shot gun as Article 9, which was taken into possession vide memo. Exh.P.D. Similarly on the following day i.e. 5-1-1988 accused Rahim Bakhsh led the police to the recovery of shot gun as Article 17 which was taken into possession vide memo Exh.P.9, whereas Hussain Bakhsh was arrested on 2-1-1988 and on 9-1-1988 he led the police to recovery of hatchet as Article No.18 which was taken into possession vide memo. Exh.P.1. The weapon of offence with empties, recovered were sent to Ballistic Expert for report which is Exh.P.Q., whereas the report of Chemical Examiner relating to blood-stained earth, clothes of deceased is Exh.P.R. On completion of investigation the appellants were challaned to answer the charge of murder of Niaz Ali and Mst. Shafi. The Court framed charge under section 302/34, P.P.C. On 28-2-1988 to which accused did not plead guilty, however, after recording evidence and completing all other formalities the accused were found guilty for commission of offence as such vide impugned judgment they were convicted and sentenced. During trial the prosecution examined P.W.1 Manzoor Ali son of Faqir Ali who is brother of deceased Niaz Ali. According to his version at the time of incident at 9-00 a.m. When he alongwith his brother Niaz Ali was sitting in their Otak while Didar Ali and Mumtaz Ali were sitting on heap of Palal and his another brother Gul Hassan was at his home, the accused Hussain Bakhsh came to his Otak and told to his brother Niaz Ali to accompany him to his house to repair electric connection. When his brother and Hussain Bakhsh left towards house of Hussain Bakhsh he also followed them and when his brother reached near heap of Palal, accused Rahim Bakhsh and Wahid Bakhsh came out alongwith shot guns from heap of Palal and fired at his brother while accused Hussain Bakhsh gave blows of hatchet to his deceased brother. According to him his brother after receiving shot gun fires and blows of hatchet died at the spot. After murdering his brother accused Hussain Bakhsh went into the house of his brother Amir Bakhsh and dragged his wife towards the place of incident. Accused Rahim Bakhsh and Wahid Bakhsh also fired at Mst. Shafi and killed her. On firing reports his brother Didar Ali, Mumtaz Ali, Gul Hassan and Mst. Amiran came on the place of incident. According to him the motive behind murder of Niaz Ali was that he was not carrying orders of accused being Motbars. In cross-examination he stated that his deceased brother used to work as Electrician at Dargah Mashoori Sharif which is 50 miles from the place of occurrence and his brother Niaz Ali was living there, however, he occasionally visited their house. In cross-examination this witness further clarified that he followed his brother and Hussain Bakhsh due to suspicion as Hussain Bakhsh had told him that he was taking his brother to his house while he was taking him to some other house i.e. House of Amir Bakhsh. He further stated that he did not remember whether he had mentioned in the F.I.R. That accused Hussain Bakhsh took hatchet from heap of Palal and gave three blows of hatchet injuries to his brother Niaz Ali. This witness had not seen electric
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instrument at the place of incident. According to witness he went to police station to lodge report and he covered a distance of 2/3 miles on foot and thereafter he boarded on a bus. However, he denied that he had not stated in F.I.R. That at the time of incident other people of the village had come at the place of incident. P.W.2 Gul Hassan son of Faqir Ali who is brother of deceased, according to his statement, at the time of incident he was present in his house at Goth Zulfiqar Ali Jamali. Hussain Bakhsh who is co- villager asked deceased Niaz Ali to accompany him to his house as there was electric failure in their house and when his brother deceased Niaz Ali went with him, after about half a minute of departure of his brother, his other brother Manzoor Ali (complainant) followed them and when reached near heap of Palal, accused Rahim Bakhsh and Wahid Bakhsh came out and fired at his brother. He stated that at the time of firing he was in his house and after hearing gun shot reports he alongwith Mst. Amiran and his other brother Mumtaz Ali reached at the place of occurrence and they saw Hussain Bakhsh giving hatchet blows to his brother then Hussain Bakhsh went to his brother's house namely Amir Bakhsh and dragged out his wife Mst. Shafi at the place of incident and accused persons also murdered her at the place of incident. He further stated that accused has killed my brother as he was not accepting their leadership. P.W.3 Mst. Amiran is aunt of deceased Niaz Ali, she deposed that on the day of incident at 9/10 a.m. Manzoor Ali and deceased Niaz Ali were sitting in `Otak', Mumtaz Ali and Didar Ali were present at Dera (paddy crop) when accused Hussain Bakhsh came in the Otak of Manzoor Ali and asked Niaz Ali to come with him to repair electric connection of their house Manzoor Ali also followed them and when Niaz Ali and Hussain Bakhsh reached near heap of Palal, the accused Wahid Bakhsh and Rahim Bakhsh came out alongwith shot gums and fired upon deceased Niaz Ali. Manzoor Ali also reached there, in the meanwhile Gul Hassan, Mumtaz and Didar also reached there. Hussain Bakhsh also attacked on Niaz Ali with hatchet, whereafter Hussain Bakhsh went to the house of his brother and dragged out his wife to wards the place of incident, Rahim Bakhsh and Wahid Bakhsh also fired at her, she died at the spot. In the cros-examination she stated that her house is surrounded by hedge and the houses of other Mochees were also surrounded by hedge. According to her version Otak is situated at a distance of 30 to 40 paces from her house. However, she did not mark whether Niaz Ali had taken electric appliances with him or not. She further contended that when she heard the first shot gun report she was sitting in her house and thereafter she went towards the place of incident. Dera is sitauted at 40/50 paces from the place of incident on which Didar and Mumtaz were working. The accused fired at Niaz Ali and also gave him three blows of hatchet. The accused also fired 4 shots at Mst. Shafi. She also did not mark whether any appliances were lying near dead body or not. P.W.4 Amir Khan, whoa is Head Constable in police and in his presence Medical Officer, Usta Muhammad delivered blood-stained clothes of both deceased Mst. Shafi and Niaz Ali to S.H.O. He prepared inventory Exhs.P.B. And P.C. Which bear signature of the witness. In the Mashirnama it is mentioned that parcel of clothes of both the deceased was prepared at the spot. P.W.5 Muhammad Sudhir is a constable of police, in his presence S.H.O. On the pointation of accused Wahid Bakhsh recovered shot gun alongwith a copy of licence from his house on 4-1- 1988, he produced Mashirnama as Exh.P.D. Which bears his signatures. According to inventory, parcel of shot gun Article 7 was also prepared at the spot by S.H.O. This witness has identified the shot gun and also his signatures on inventory. In the cross-examination the witness stated that S.H.O. Summoned Ghulam Rasool from village who is also witness of recovery. It is pertinent to mention here that during trial second Mashir Ghulam Rasool was dropped by District Attorney on the ground that another Mashir has supported the prosecution, therefore, there is no need to examine him.
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P.W.6 Didar Ali is also real brother of deceased Niaz Ali. According to his testimony on the day of incident he with his other brother Mumtaz Ali were present at Dera. His other brother Gul Hassan was in the house. Niaz Ali and Manzoor Ali were also his brothers, who were sitting in Otak (Guest Room), at 9/10 a.m. Accused Hussain Bakhsh came to Otak and asked that there is some defect in the electricity in Amir Bakhsh's house, on this pretext Hussain Bakhsh asked Niaz Ali to accompany him, Manzoor Ali his other brother was also there. When they reached near heap of Palal near Amir Bakhsh's house, Rahim Bakhsh and Wahid Bakhsh came out and fired upon his brother Niaz Ali with shot guns and Hussain Bakhsh also attacked with hatchet. His brother fell down. Hussain Bakhsh went to the house of his brother and brought his wife dragging her and Wahid Bakhsh and Rahim Bakhsh fired at her and she died at the spot. All the three accused Rahim Bakhsh, Wahid Bakhsh and Hussain Bakhsh ran away. In the presence of this witness police inspected the site, prepared inspection memo which was produced by this witness as Exh.P.P. Blood-- stained earth near the body of deceased was procured vide Exhs.P.C. And P.D. Whereas he produced blood-stained earth Article 1 of deceased Niaz Ali and Article 2 of deceased Mst. Shafi. In the presence of this witness vide memo. Exh.P.E. Police recovered crime empties which were produced as Articles 3 to 8 in the Court. Parcels of recovered articles were also prepared at the place of incident as mentioned in inventory memo. All these parcels were opened in Court in his presence. In cross-examination this witness has stated that when he and his brother Mumtaz Ali were at Dera and cleaning Dera (paddy) accused Hussain Bakhsh and Niaz Ali reached the heap of Palal and in their presence Wahid Bakhsh and Rahim Bakhsh fired two shots each at his brother. P.W.7 is Rashid Ahmed who is Head Constable of police in his presence accused Hussain Bakhsh led the police party to recovery of hatchet on 9-1-1988 which he had used in the offence. He accompanied S.H.O. Jamil Asghar and in his presence hatchet was recovered from heap of Palal vide inventory Exh.P.1. According to the contents of inventory parcels of the articles were prepared at the spot. P.W.8 Dr. Saifullah conducted post-mortem examination of dead bodies and following injuries were noticed in case of each deceased:-- Mst. Shafi wife of Amir Bakhsh: EXTERNAL INJURIES: (1) A fire-arm wound of entrance on right side between scapular region 1" in diameter. Blackening was present around the wound. (2) A fire-arm wound of entrance on left side of back of chest 1" in diameter. Blackening present around the wound. (3) A fire-arm wound of entrance on right lumber region on 1" in diameter. Blackening was present around the wound. (4) Fire-arm wound of exit 7 in number on right side of chest and above nipple (breast). (5) Fire-arm wounds of exit on left side of chest above breast 1" in diameter, two wounds of 1/4" in diameter. (6) A fire-arm wound of entrance on right upper arm 1/2" x 1/4". One pellet recovered and handed over to police. INTERNAL INJURIES: Wall of Thorax: Pleurae damaged, right and left lungs lacerated, Heart lacerated, small and large intestines lacerated, right kidney damaged. Right abdomen damaged. According to the opinion of the doctor death resulted due to injury on vital organs i.e. Heart, lung, haemorrhage and shock, all injuries were ante--mortem in nature and homicidal in character, all have been caused by discharge of fire-arm. The probable time between injuries and death was
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shown instantaneous. The post-mortem certificate was produced as Exh.P.J. Which bears signature of doctor. Niaz Ali son of Faqir Ali: EXTERNAL INJURIES (1) A fire-arm wound of entrance on right side of chest at 5th inter costal space 1" in diameter. Blackening was present around the wound. (2) A fire-arm wound of entrance on right side of chest at 7th inter costal space 1" in diameter. Blackening was present around the wound. (3) A fire-arm wound of exit on left side of chest 17 in number each 1/6" in diameter. (4) A fire-arm wound of entrance on back of chest over spinal cord 1" in diameter. Blackening was present around the wound. (5) A fire-arm wound of entrance over left side of back of chest 1" in diameter. (6) An incised wound on right side of neck 3" x 1/2" skin deep. (7) An incised wound on right side of neck below injury No. 6, 2" x 1/4" skin deep. (8) An incised wound on left shoulder 1" x 1/2" skin deep. Two pellets recovered and handed over to the police. INTERNAL INJURIES: Thorax: Wall, pleaurae damaged, right and left lung lacerated, Heart lacerated. According to the opinion of doctor death resulted due to injuries on vital organs i.e. Heart, lung, haemorrhage and shock. This witness further certified that injuries Nos.1 to 5 are ante-mortem and injuries Nos. 6 to 8 are post-mortem in nature and homicidal in character. According to witness injuries Nos.1 to 5 have been caused by fire-arm and injuries Nos.6 to 8 by sharp weapon. The death has been shown instantaneuous. Post-mortem certificate was produced as Exh.P.K. Which bears signature of the witness. In cross-examination the witness stated that two or one shot were fired at Mst. Shafi whereas one or more than one shot were fired at Niaz Ali. P.W.9 Abdul Qazzaq is constable of police. In his presence accused Rahim Bakhsh disclosed that he would produce the shot gun which was used in the offence and this witness alongwith other police officers including S.H.O. And private witnesses namely Malook went to the house of accused to Goth Zulfiqar Ali Jamali and at the pointation of accused Rahim Bakhsh's shot gun was recovered from his residential house on 5-1-1988 which was taken into possession vide Exh.P.L which bears signature of the witness and shot gun was produced as Article 17. The private witness Malook was not examined by the prosecution on the ground that he was won over by other side. According to the contents of inventory i.e. P.C. Parcel of recovered shot gun was prepared at the spot. P.W.10 is Jamil Asghar, S.H.O., Usta Muhammad who conducted investigation, arrested accused persons and on completion of other formalities submitted challan Exh.P.P. Against the appellants in the lower Court. In cross--examination he stated that when he reached the village at the place of occurrence, at that time so many people had gathered there, witness tried to secure attendance of the witnesses from Usta Muhammad before proceeding to Goth Zulfiqar Ali Jamah, but he could not succeed. However, he stated that I called one private witness namely Ghulam Rasool from that Goth who is witness of recovery. Similarly one Muhammad Malook was also called from village as private witness at the time of recovery. In the statements under sections 342 and 340(2) of Cr.P.C. The accused persons pleaded that they have been implicated in commission of murder falsely. The defence produced D.W.1 Ghulam Rasool son of Saifal who stated that in his presence no recovery of shot gun was effected by police. It is mentioned here that shot gun of accused Wahid Bakhsh bearing No.5144 Article 7 is a licensed one vide licence No.276/SK, dated 26-2-1971 issued by S.D.M. Shahdad Kot and this licence was also produced by accused Wahid Bakhsh to police when recovery of shot gun was effected.
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D.W.2 Muhammad Malook stated that in his presence recovery of shot gun from the possession of accused Rahim Bakhsh was not effected by the police. It is again pertinent to observe that shot gun recovered from the possession of accused Rahim Bakhsh was also a licensed one and licence bearing No.6/26/JPAT, dated 29-12-1969 issued by District Magistrate Jaccobabad was produced at the time of recovery of shot gun. The defence witnesses were originally cited as prosecution witnesses for the recovery of shot guns but they were not produced m Court as they were given up. The learned counsel for the appellants argued that testimony of prosecution eye-witnesses is not worthy of acceptance as they have not stated truth in Court and the offence has not been committed in the manner as disclosed by these witnesses, the, recovery of crime weapons as well as empties is also doubtful because prosecution failed to produce independent civilian witnesses. Likewise if the recovery of incriminating articles is disproved against the appellants the report of Ballistic Expert as well as Chemical Examiner would also lose its value. Thirdly he contended that as there is inconsistency on the point of motive, which gives rise to doubt and benefit whereof may be extended to accused/appellants. It was further explained that accused Hussain Bakhsh gave blows of hatchet to deceased Niaz Ali as alleged by prosecution, according to Dr. Saifullah injuries were caused with sharp weapon i.e. Injuries Nos.5 to 8 are post-mortem in nature, therefore, accused has not committed any offence and as such is liable for acquittal. On the other hand Mr. Salahuddin Mengal, Assistant Advocate General, Baluchistan urged that all witnesses are natural witnesses and they have stated whole truth in their testimony and their deposition have been rightly believed by trial Court. The recovery of crime articles have been effected in accordance with provision of law and appellants have failed to show any mala fide on the part of prosecution, although prosecution and Investigating Officer have affected recoveries of shot guns in presence of private witnesses namely Ghulam Rasool and Muhammad Malook, but subsequently they were given up for the reasons stated by the District Attorney before the trial Court. However, these witnesses in fact have been won over, therefore, they were not produced in the Court. The Ballistic Expert's report and Chemical Examiner's report being positive have provided strong corroborative support to prosecution case, there is no inconsistency in the motive, the accused Hussain Lakhsh though according to the medical certificate caused injuries with hatchet on person of Niaz Ali which were found post-mortem in nature but he has also facilitated commission of murder of deceased Niaz Ali and Mst. Shafi, therefore, Court has rightly awarded punishment to him. We have considered the arguments put forth by the learned counsel of appellants as well as by Assistant Advocate-General, Baluchistan. Now, reverting to the first contention of counsel for the appellant that the eye-witnesses have not stated correct facts in Court, and offence has not been committed in the manner as narrated by prosecution witnesses, according to him the statement of P.W.1 complainant Manzoor Ali is not worthy of acceptance because he has not mentioned about the hatchet or injuries of hatchet when he lodged report, thus this witness has made case of prosecution doubtful. The witness also had no occasion to follow deceased Niaz Ali and Hussain Bakhsh when they were going to repair electricity connection and near dead body of Niaz Ali no instrument for repair of electricity was found. Learned counsel for appellant further elaborated that in fact the murder of Niaz Ali and Mst. Shafi was unwitnessed incident and subsequently when it was learnt by the eye-witnesses they involved the appellants falsely in the case and concocted a story which does not appear to be true; learned counsel further emphasised that Mst. Amiran had also no occasion to witness the incident as according to her version she was present in her home and she came out on the report of shot gun, the witness P.W.2 Gul Hassan who is also brother of complainant has not followed
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Amiran because he was present in his house and had not seen the incident. So much so Didar Ali has also not seen the incident, he contended that according to F.I.R. At the time of incident so many people had gathered at the place of incident, but none of them was produced by the prosecution. P.W. Manzoor Ali (complainant) in his testimony before Court stated, that when his brother reached near heap of Palal, Rahim Bakhsh and Wahid Bakhsh came out alongwith shot guns from the house, again stated that they came out from the heap of Palal and fired at his brother, while accused Hussain Bakhsh gave blows of hatchet to his deceased brother who after receiving shot gun injuries and hatchet blows died at the spot. Whereas in cross-examination he deposed that he does not remember whether he had mentioned in F.I.R. That accused Hussain Bakhsh took hatchet from heap of Palal and caused three hatchet injuries to his brother Niaz Ali. However, omission noticed in statement of Manzoor M has not been proved because no question was asked from P.W.10 Jamil Asghar whether complainant while recording F.I.R. Had stated that Hussain Bakhsh took out hatchet from the heap of Palal and caused injuries to deceased Niaz Ali. In absence of proof, presumption would be that whatever has been stated by P.W.1 in his statement is correct and his testimony will not be discarded on account of the fact that an omission has been made by him. Even otherwise, First Information Report in itself is not a substantive piece of evidence and omission of certain details in A F.I.R. Would not reflect on testimony of complainant which otherwise does not suffer from infirmities and contradictions. It is a settled principle of law that I F.I.R. Need not contain each and every detail of the facts. However, it is to be examined whether prosecution story subsequently told by the witness is the same which was mentioned in F.I.R. Or altogether different version has been introduced in the Court. In the case in hand the narration of facts in F.I.R. As well as evidence recorded in Court of P.W. Manzoor Ali is not inconsistent in its nature and there is no contradiction in both the versions. In this context I am fortified by a reported judgment from the jurisdiction of Peshawar High Court reported in 1968 P Cr. L J 495 titled Mazan and others v. State/respondent. Although so-called omission has not been proved in the Court in accordance with law, even otherwise…
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