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Petitioner: WALI MUHAMMAD AND 2 Other VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): G.M Shah, Z. A. Channa Title: WALI MUHAMMAD AND 2 Other vs THE STATE Case No.:Criminal Revision Application No. 96 of 1976 Criminal Appeal No. 143 of 1973
JUDGMENT
Reported As: PLD 1978 Karachi 112 Result: Appeal dismissed Judgment JUDGMENT Z. A CHANNA , J; The three appellants were tried by the learned Sessions Judge, Nawabshab, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of Muhammad Hassan Baladi. Appellants Ghulam Rasool and Isso were further tried in respect of an offence under section 13(d) of the West Pakistan Arms Ordinance, 1965, for being in possession of unlicensed fire-arms and ammunition. The learned Sessions Judge, by hl$ Judgment delivered on 30-6-1976, convicted all the appellants of the offence under section 302 read with section 3 t, P. P. C. And for the said offence sentenced appellant Wali Muhammad to death and the other two appellants to imprisonment fear life. Ho also convicted appellants Wall Muhammad and Isso under the Arms Ordinance and for the said offence awarded each of these appellants R. 1. For two years with the direction that the sentence in respect of appellant Ghulam Rasool is to be excused only if the death sentence awarded to him is not confirmed. All the three appellants have preferred appeals against their convictions and sentences and the learned Sessions Judge has also referred the case of appellant Wali Muhammad for confirmation of the death sentence awarded to him. Furthermore, the complainant has preferred a revision application praying for the enhancement of the sentence of life imprisonment awarded to appellants Isso and Rajo on the murder charge. This Judgment will dispose of the appeals, reference and the revision application. 2. The incident occurred on 26-1-1974, at about 12 noon, on the Katcha road running alongside AbranMinor, near village Nabi Bux Lakho, at a distance of about y miles from Naushero-Feroae Police Station. The prosecution case is that on that day, at about six in the morning, deceased Muhammad Hassan Baladi, who was a trader in cattle, set out from his village, Rahim Khan Baladi,
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alongwith his brother-in-law and partner-in---business, Sobho, and their relations Piaro and Jiwan, for the purpose of taking cattle to Kazi Ahmed for sale. When they neared Nabi Bux Lakho village, at about noon time, the deceased is said to have been fired upon by appellants Wali Muhammad and lsso, who are stated to have been armed with a gun and rifle respectively and were biding alongwith appellant Rajo, who was armed with a hatchet, in the nearby rapeseed field. In consequence of the firing Muhammad Hassan died on the spot. The companions of the deceased raised an outcry and ran for their lives. At that time a numbed of persons were clearing silt nearby from Abrar Minor. On hearing the fire-arm shots and the cries they pursued the culprits. Sobho, however, left immediately for Naushero-Fero:o Police Station, where he lodged his F.1. R. The same day at 18-15 hours with S. H. O. Agha Mir Alvi. The motive fen the murder is said to have been the fact that some 14 or 15 years prior to the incident, the deceased had killed Mebro Baladi, maternal uncle of appellant Wali Muhammad. For that homicide, he was tried and sentence to Seven years rigorous imprisonment. It is slated that appellant Wall Muhammad was riot satisfied with the punishment awarded to deceased Muhammad Hassan and in retaliation for the murder of his maternal uncle, had murdered the deceased with the assistance of his cousin, appellants isso and Rajo. 3. After recording the F. I. R., 5. H. O. Agha Mir accompanied firs! Informant Sobho to the scene of offence, where they reached at about sunset time. At the wardat, where the dead body of Muhammad Hassan was still lying, the S. H. O, learnt that the people clearing the silt had captured the 3 culprits and taken them to the bungalow of Ahmed Khan Jatoi. The S. H. O. Accordingly, after posting a police constable to guard the dead body, proceeded to the bungalow of Ahmed Khan, where the custody of all the three appellants was handed over to him by Muhammad Hashim and Muhammad Hassan, Kamdars of Ahmed Khan Jatoi. They also produced before the S. H. O. a gun, one rifle, 25 live and two empty cartridges of .12 bore and a sum of Re. 315 in cash which are said to have been recovered from the possession of the appellants by Muhammad Malook and Muhammad Khan, who were in charge of two separate parties which were engaged in the silt clearance operations. The S. H. O. Prepared a mashirnama of the seizure of the above items and scaled the gun, rifles and the live and empty cartridges. On the same night the S. H. O. Recorded the statements of Muhammad Malook, Muhammad Khan. Muhammad Hashim, Jiwan and Biaro. On the following morning, the S. H. O. Secured from the rapeseed field near the scene of offence, at the pointation of appellant Rajo, a hatchet which was not blood-stained. The S. H. O. Thereafter inspected the Vardat and prepared a mashirnama. From the Vardat the S. H. O. Secured two empty shells of bullets, one empty .12 bore cartridge, three wads, seven pellets, the Ajrak of the deceased and blood-stained earth, all of which articles he sealed. After sending the dead body of Muhammad Hassan for post-mortem examination, the S. H. O., on the same day, recorded the statements of Karim Bux, Imdad and Yakub. The S. H. O. Thereafter brought the appellants to the Police Station, where he lodged F. I. Re. Against appellants Wali Muhammad and Isso under section 13(d) of the West Pakistan Arms Ordinance, 1965, for being in possession of unlicensed fire--arms. The gun, rifle and the empties secured from the appellants as well as those recovered from the wardat were sent to the Ballistic expert to the Government for examination and report. On 11-2-1974, the appellants were challaned. 4. The autopsy on the deceased, which was conducted on 27-1-1974, revealed the following external injuries on the deceased, which were the result of discharge from fire-arm :- "(1) A lacerated wound about J' In diameter with blackening over the left upper arm, laterally. (2) A lacerated wound about J' in diameter over the left upper arm medially (wound of exit). (3) A lacerated wound about J' in diameter over the left upper arm with blackening (wound of entry). (4) A lacerated wound about J' in diameter over the left upper arm with blackening.
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(5) A lacerated wound over the left upper arm about J' in diameter medially (wound of exit). (6) 4 lacerated punctured type of wounds, each about J" in diameter, over the left shoulder and scapular region with blackening (wound of entry). (7) A lacerated wound about J' in diameter with blackening over the left scapular region medially. (8) A lacerated wound about J' in diameter over the back of chest in middle line parallel to the angle of scapulae. (9) A lacerated wound about J' in diameter over the left side neck with blackening. (10) 3 lacerated punctured typo of wounds, each ;' in diameter, with blackening over the left side of chest," 5. On internal examination, the pleura, both the lungs and the heart of the deceased were found lacerated. Three pellets were recovered from the body of the deceased and sent to the S. H. O. According to the Medical Officer the injuries were caused from a distance of 4 feet. 6. 'the case of the appellants is that they have been falsely implicated by the P. Ws. Who arc on inimical terms with them. Appellant Wali Muhammad, in his statement '---o the Sessions Court, further stated as follows :- "Before this case my 'Marot' Sadik and Imam Bux filed a case of theft of the gun of Imam Bux against Muhammad Hashim father-in-law of deceased Muhammad Hassan. That case was pending in this Court. I produce the true copy of the Judgment in Sessions Case No. 7 of 1958. State v. Mehroas Exh. 58. Karim Bux, brother cf P. W. Muhammad Khan, was convicted in the case which was filed by my cousin Sajjan. In that case the other witnesses were my relatives. Hence Muhammad Khan was our enemy. I produce true copy of the Judgment as Exh. 59. I bad filed a robbery case in which Sulleman Doongah, cousin of P. W. Malook Shamovn Machi, nephew of P. W. Muhammad Hashim alongwith one Arbab were convicted under section 398 read with 393, P. P. C. And sentenced for 7 years. Since then these witnesses are inimical to us. I produce the true copy of the Judgment as Exh. 60. All the witnesses are interested and in conspiracy with the Police they have fabricated the evidence against us. We were arrested from our house during night time. P. Ws. Jiwan and Piaro are related to the Complainant and the deceased by blood as well as by Sauga Bandi. Co-accused Rajo is my maternal cousin and cc-accused Isso is my father's sister's son. We have been implicated due to long standing enmity." 7. We have heard Mr. A. K. Brohi, who appeared for the appellants, and Mr. Saris Hussain Rehmani, who appeared for the State. We have also beard Mr. Muhammad Hayat Junejo, who appeared in support of the application for enhancement of sentences in respect of appellants Isso and Rajo. 8. The motive has been established through first informant Sobho. Ha has testified about the murder of Mehro Baladi, the maternal uncle of appellant Wali Muhammad, some 14 or 15 years back, for which murder the deceased was sentenced to seven years imprisonment. He has further testified that the deceased had served out his sentence some 7 or 8 years before his murder and that he was killed in retaliation for Mehro's murder. 9. The direct evidence in t' re case is furnished by first informant Sobho and P. W. Jiwan. Both of them have testified that they were with the deceased when the incident occurred as they alongwith the deceased and Piaro were taking cattle from them village to Kazi Ahmed. They have further deposed that when they neared Nabi Bux Lakho village, at about 12 or 12-30 p.m., the three appellants suddenly emerged from the adjoining rapeseed field and appellants Wali Muhammad sad Isso, who were armed respectively with a gun and rifle, fired at the deceased, wino was bit and dims on the spot. They have also stated that on the fire-arm shots and the cries raised by them a number of persons, who were engaged in silt clearance from the adjoining Abrar Mirror, gave a chase to the appellants who were attempting to run away. Piaro, who had also witnessed the incident, was gives up by the learned Prosecutor in charge of tire ease on tire ground that he was on the same point as P. Ws. Sobho and Jiwan and was not examined in the trial Court. The learned
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Sessions Judge has carefully examined the evidence of the two eye-witnesses and has held that they have given a substantially correct version of the incident and has relied upon their testimony. 10. Mr. Brohi has assailed the ocular evidence on a number of grounds. His first ground of attack is the abnormal delay in the lodging of the F. I. R. He submitted that if the complainant party, while encumbered with cattle, could traverse a distance of about 14 to 16 miles from their village to the scene of offence in about six hours time, it should not have taken the complainant more than 3 to 3j hours to cover the distance of about 9 miles from the scene of offence to the police station, and since according to the complainant himself he had left for the police station within 15 minuets of the incident the F. I. R. Should have been recorded before 4 p.m., whereas it was recorded at 6.15 p.m. The learned counsel center dad that this delay in the lodging of the F. I. R. Is ominous and suggests some undisclosed and behind the scene activities prior to the lodging of the report which strongly react on the entire case. No doubt it is possible for a villager, specially if like the complainant he is used to covering long distances on foot, to have covered the distance of 9 miles from the scene of offence to the police station in about 3 to 31 hours, as contended by Mr. Brohi, but on the other hand we should not lose sight of the facts that the complainant, before setting out for the police station, had already covered on foot a distance of 14 to 16 miles, which fact must have tired him out, that he must have been greatly agitated at seeing his cousin and brother-in-law shot down within a few feet of him and that finally the last meal taken by the complai--nant party was before getting out in the early morning from their village, as indicated by the testimony of the Medical Officer to the effect that the deceased had taken his last meals about six hours prior to his death, which coincides with the time given by the eye-witnesses when they had set out from their village. We, therefore, are of the opinion that the slight delay in the lodging of the F. I. R. Was natural in the circumstances of the case and are unable to discover anything sinister or even suspicious therein. 11. Mr. Brohi also commented adversely on the omission from the F. I. R. Of any mention of the apprehension of the appellants, though they are said to have been apprehended after a chase of between a few hundred yards and a furlong. '1 he learned counsel submitted that even if complainant Sobbo had stayed at the scene of offence for only 15 minutes, as stated by him, he could not but have learnt about their apprehension, if the prosecution version about their being chased and captured is correct, before he set out for the police station. He contended that the reasonable possibility of the appellants being apprehended much later, probably at night or even on the next morning, cannot in the circumstances of the case be excluded. We will consider the evidence regarding the apprehension of the appellants later, bus we would at this stage point out that the F. I: R. Specifically mentions the pursuit of the appellants by the 'Chhair' (persons who were engaged in the silt operations). Furthermore, we do not see how the omission from the F. I. R. Of the apprehension of the appellants would have served the purpose of the complainant or in any way furthered the case of the prosecution if in fact the appellants were apprehended while the complainant was still at the wardat. 1n fact mention In the report of their capture would have considerably strengthened the case against them. 12. Mr. Brohi also attacked the evidence of the two eye-witnesses on the grounds that they are related to the deceased and hostile to the appellants, that their evidence is inconsistent with the medical evidence, that they have made contradictory statements, that P. W. Jiwan resides at Sita Road, far away from the scene of offence, and hence big presence at the scene of offence at the time of the incident i9 very doubtful and that finally they have not given an intelligent account of the incident. 13. There is no doubt that both complainant Sobho and P. W. Jiwan were closely related to the deceased, the former being his cousin besides his brother-in-law, and the latter being the maternal uncle of the deceased. The enmity between the complainant party and the appellants is
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also admitted. In fact it is the prosecution case itself that deceased Muhammad Hassan had killed Mehro, the maternal uncle of appellant Wali Muhammad, for which killing he was awarded '7 years imprisonment and because of this crime the appellants bore a grudge against the deceased and in retaliation for Mehro's death killed him. Furthermore, as admitted by P. W. Kauro, who is a case- fellow and partner-in-business of a relation of the deceased, Imam Bus, the brother-in-law of appellant Wali Muhammad, and Imam Bux's brother Sadiq, had filed a criminal case against Hashim, the maternal uncle and father-in-law of the deceased, which case is still pending. These circum--stances undoubtedly make complainant Sobho and P. W. Jiwan interested witnesses. This, however, does not mean that their evidence is to be discarded. What has to be done in such cases is a careful and cautious sifting of evidences and to look for corroboration of the interested testimony to ensure that no innocent persons are being implicated. The rule regarding the appraisal of interested witnesses was thus stated by their Lordships of the Supreme Court In Nazir v. State PLD 1962 SC 269 :- "But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so tar as an ordinary interested witness is concerned, cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of the case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent persons had not been implicated in addition to those who were guilty the circumstances relied upon must have bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing." 14. Again is the case of Abdul Rashid v. Umed A.I PLD 1975 SC 277, their Lordships of the Supreme Court observed thus :- "It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexcep--tionally applied. There might be cases in which the witnesses related to the deceased might be otherwise, quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not Inspire confidence, even their uncorroborated testimony may be implicitly relied upon of course in the context of other relevant circumstances of each case. Reference may be made in this regard to this Court's judgments in Jahan Khan v. State PLD 195 SC (Pak.) 488 ; Niaz v. State PLD 1960 SC 387 and Nazis and others v. State P I. D 1962 SC 269. These judgments were referred to with approval in Muhammad Ismail v. Khushi Muhammad and 7 others." 15. The above observations were referred to and followed in the case of Talib Hussain v. Fazal Hussain PLD1976SC518, wherein Muhammad Afzal Cheema, J. Further observed that he fully agreed
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with the principle "that it is not an indispensable requirement of law to look for independent corroboration of the testimony of interested witnesses before placing reliance on it". 16. As to the inconsistency of the ocular evidence with the medical evidence, Mr. Brohi pointed out that after the deceased fell down on being hit by the fire-arm shots appellant Rajho ran up to him and gave him blows with the back side of the hatchet, the medical evidence clearly shows that deceased bad sustained only fire-arm injuries and had not been given blows with a hatchet, laths or butt of afire-arm. This undoubtedly is a mis--statement on the part of the two eye-witnesses but it does not, in out respectful view, render the rest of their testimony untrustworthy. As pointed out by their Lordships of the Supreme Court in Baka v. State 1977 SCMR 150, the principle of the maxim falsus in uno falsus in omnibus has long been abandoned by our Courts and what is required to be done is to separate the grain from the chaff. 17. Mr. Brohi also referred to the fact that though according to both Sobbo and Jiwan, appellant Isso had fired his rifle at the deceased, according to the medical evidence the injuries on the deceased are all consistent with gunshots and mot rifle shots, which would have caused injuries of larger dimensions. While we agree with Mr. Brobi that the medical evidence indicates that the deceased had sustained only gunshot injuries, we may point out that both Sobho and Jiwan have admitted in their evidence fn the Sessions Court that they are unable to say whether the deceased was hit by rifle shots. In this connection we may notice another argument of Mr. Brohi that if the appellants were hiding very close to the place from where the complainant party was passing, as stated by the eye-witnesses, it is impossible that appellant Isso, if in fact he bad fired his rifle at the deceased, could have missed him. We, however. Do not know the exact distance from which he fired at the deceased. There is nothing to indicate that he was standing at the same distance from the deceased from which appellant Wall Muhammad fired his gun at the deceased. Then also it is possible to miss a target even at a short distance with a rifle snot, since a rib; fires a single bullet, while a gun ordinarily fires pellets which increasingly spread with the distance traversed. It may be stated that even the F. I. R. Recipes that deceased was fired at both with a gun and rifle though it does not state whether he was hit by the gunshots and the rifle shots. 18. So far as the contradictions made by the two eye-witnesses in their testimony are concerned, they do not appear to be very important or of such a nature as to Impair their testimony in regard to the material facts of the case. Although the learned Sessions Judge has made a note in the deposition of complainant, Sobho that in the committal Court he has stated that the deceased was hit by the rifle shot fired by Isso, the extract from his evidence in the lower Court with which he was confronted and which has been exhibited merely sates that "Isso had also fired at the deceased". The other contradictions in the evidence of complainant Sobho and P. W. Jiwan are in respect of the time that the S. H. O inspected the wardat and prepared Mashirnama of the same, where they stayed on the night of the incident and the time when the police recorded their statements. These contradictions are minor and do not indicate that the witnesses have either given an untruthful account of the incident or falsely implicated the appellants. 19. So far as the place of residence of P. W. Jiwan is concerned, the witness has candidly admitted that be belongs to Sita Road, but two days prior to the incident he had gone to the village of the deceased to seek labour and he had been engaged by the deceased to help him, Sobho and Piaro to take cattle to Kazi Ahmad. The name of this witness transpires in the F.1. R. Furthermore, all the other witnesses have spoken of his presence at the wardat at the time of the incident. Finally, S. H. O. Agha Mir has deposed that he had recorded the statement of this witness on the very night of the incident at the bungalow of Ahmad Khan Jatoi, where the appellants were being detained. We are thus satisfied that P. W. Jiwan was wins the deceased when the fatal assault was made on him. 20. We also are unable to agree with the contention of Mr. Brohi that the eye-witnesses have not given an intelligent version of the incident. Both of them have testified about the fatal bring upon
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the deceased by the appellants when they were passing by a rapeseed field close to Abran Minor and the factum of the appellants being chased by the Chhair people at the Abran Minor. They have also described the weapons which each of the appellants carried. Furthermore, P. W. Jiwan has testified about the capture by the Chhalr people of the three appellants and their being taken to the bungalow of Ahmad &ban Jatoi. The witnesses have thus given a detailed account of the entire incident. They were put to lengthy and starching cross-examination taut nothing was extracted from them from which it could be reasonably inferred that either they did sot see the incident of axe falsely implicating the appellants. The incident occurred in broad c daylight, the deceased was fired at from an extremely close range and the appellants were well known to :he eye-witnesses.…
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