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Petitioner: GAMOON and others VS Respondent: STATE
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title: GAMOON and others vs STATE Case No.: Crl. Jail Appeal No, S-200 of 2006 Date of Judgment:2011-07-19 Reported As: PLJ 2012 Cr.C. (Karachi) 236 Result: Appeal allowed
JUDGMENT
JUDGMENT This Jail Appeal has been brought by the appellants to challenge their conviction and sentence of life imprisonment awarded to them in Session Case No, 252/2000. vide Judgment dated 11.8.2006, passed by learned IInd Additional Sessions Judge, Badin under Section 302(b) PPC. 1. The facts forming the background of the case are that on 4.11.2000, complainant Meenh Wassayo appeared at Police Station Badin and stated that deceased Lakhadino was his brother and working as Constable in the police department. About two years ago they had purchased land from Dr. Abdul Aziz Memon on which accused Basar and Gamoon were annoyed. It was further alleged that one day prior to the F.I.R., deceased Lakhadino came to the house and in the morning, he left for Badin and at about 6.30 a.m. when he reached near paddy crop, complainant heard the cries on which he along with Ramzan and Bilawal went there and found the accused Gamoon armed with hatchet while accused Kfiameso, Natho and Basar with lathies. Accused Gamoon caused hatchet blows and remaining accused caused lathi blows to the deceased Lakhadino and when complainant party gave hakals, accused left the place of incident. They found that Lakhadino had sustained injuries on head and other parts of the body and they took him to Civil Hospital Badin and thereafter, complainant appeared at P.S and lodged the report. 2. The police arrested all the accused and during investigation on 5.11.2000, the I.O. had received a telephonic message from the Hospital that injured Lakhadino has expired. After completing all the usual formalities, challan was submitted in the Court. On 22.1.2003, a formal charge was framed against all the four accused to which they pleaded not guilty and claimed to be tried. 3. The prosecution in order to substantiate the charge against the accused, examined PW-1, Complainant Meenh Wassay, PW-2, Ramzan, PW-3, Mashir Ali Bukhsh, PW-4, Investigating Officer
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Fazal Rahim, PW-5, Ali Nawaz, PW-6, SIP Muhammad Ayoub and PW-7, Medical Officer Dr. Muhammad Aslam. 4. The statement of accused Was recorded under Section 342 Cr.P.C. in which the appellants had claimed to be innocent and denied the prosecution allegations. 5. The PW-1 Meenho Wassayo (Ex.8), deposed in his testimony that the deceased Lakhadino was his brother, he was in police service. On the day of incident his brother had come in the village and on the next morning he was proceeding to his official duty where he was posted. It was about 6-30 a.m. complainant was available in his house, meanwhile he heard the cries towards Eastern side of the house. He rushed towards the place of incident along with his mother Mst. Rani and saw accused Gamoon armed with hatchet, co-accused Basar, Khameso and Natho were armed with lathis. He raised the cries not to kill the deceased. Accused Gamoon had caused sharp side hatchet blow to deceased on his head. Remaining co-accused had caused lathi injuries on his bodies. The complainant's mother Mst. Rani, Ramzan and Bilawal had also seen the incident. Thereafter, all accused ran away. The PW' produced original FIR vide Ex. 9. He further, deposed that the incident had taken place because of dispute over the agricultural land between him and the accused because he had purchased aforesaid agricultural land from Dr. Abdul Aziz Memon which annoyed the accused persons. In the cross-examination, he admitted that P.W Ramzan is his cousin and P.W Bilawal is also his Maasat (cousin) as well as P.W Ali Bux. There are twenty houses in his village. He admitted to have stated in the F.I.R. that the incident was also witnessed by his mother Mst. Rani. Police had not mentioned the name of his mother as a witness of the incident. None has come from the village except the P.Ws. He admitted that the police had let of three accused namely Basar, Khameso and Natho and only challaned accused Ga.moon. 6. The PW-2 Ramzan (Ex.10) deposed in his testimony that he knows the complainant as well as the accused and the deceased Lakhadino. On the day of incident, he was in his house where he heard the cries of deceased Lakhadino and rushed to the place of incident. The complainant was already available at the place of incident. He had seen the accused Gamoon armed with hatchet, Basar, Khameso and Natho were armed with lathis. He had also seen the accused Gamoon causing hatchet injury with sharp side to deceased Lakhadino and remaining accused were causing lathi injuries to the deceased. P.W Bilawal had also seen the incident. In the cross-examination, the witness admitted that deceased Lakhadino was his brother-in-law. He further deposed that there are about 10 houses in village Haji Chang where the incident took place. Accused Gamoon had caused hatchet blow to deceased in his presence with sharp side of the hatchet on his head. He had also admitted that there was no blood found at the place of vardat when the police inspected the place of vardat. He further deposed that none had seen the incident except the P.Ws. the witness further stated that he does not know that there was any dispute over agricultural land purchased by the complainant from Dr. Abdul Aziz Memon which annoyed the accused persons. The witness admitted that in his statement recorded under Section 161 Cr.P.C. he stated that about two years back my brother in law had purchased 2-00 acres of land from Dr. Abdul Aziz Memon and therefore my relative Gamoon and others were not on good terms. 7. On 15.11.2003, D.A had filed a statement in Court in which he stated that as per instructions of advocate for the complainant I give up P.W Bilawal. 8. The PW-3 Ali Bux (Ex.14) had deposed that he knows the accused persons as well as complainant. Police made him mashir of the case and co-mashir was Soomar. Police prepared mashirnama of injuries which he produced as. Ex.15. The police had also visited the place of accident in his presence. Police prepared mashirnama which he produced as Ex.16. Police had also prepared mashirnama of dead body of deceased in his presence which he produced as Ex.17. Police had also prepared the Danishitnama of dead body in his presence which he produced as Ex.18. The police also secured the clothes of deceased in his presence and prepared mashirnama
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of securing the clothes which he produced as Ex. 19. Police arrested the accused Khameso, Gamoon, Basar and Natho in his presence. Police had also prepared mashirnama of arrest which he produced as Ex.20. Police had also secured hatchet from accused Gamoon in his presence. The co-mashir was Soomar. Police prepared mashirnama of recovery which he produced as Ex.21. In the cross-examination, he deposed that complainant is his maternal nephew and the deceased was also his maternal nephew. He had reached at the place of wardat at 12:00 noon. Police reached at the place of incident at 12:30. There were about 8 to 15 persons available at the place of wardat when police arrived there, where after the witness along with police went to the Civil Hospital. In the cross-examination conducted by the advocate for pauper accused Gamoon and Khameso, the witness deposed that the co-mashir Soomar is also maternal nephew and residing adjacent to his house. He further deposed that there are about 20 houses in the village and about 3/4 Kiryana shops at the Mori from where accused persons were arrested except him and the accused persons, they were also four or five persons available at the time when police arrived at the Mori and arrested the accused persons. The comashir Soomar was called by the police themselves through some boys standing at the Mori. Police secured the hatchet from accused Gamoon at the time of his arrest from the shop where hatchet was lying inside his shop. 9. The PW-4 Fazal Raheem (Ex.22) had deposed that on 18.11.2000, he was posted as Sub-Inspector at P.S Badin. On 20.11.2000, he recovered hatchet from accused Gamoon. No any recovery was effected from any other co-accused. He prepared mashirnama of recovery of hatchet in presence of mashir Ali Bux and Soomar. He recorded the statement of P.W Sharif, Abdullah and Younis as well as Allah Bachayo and Ramzan. On 28.11,2000, he recorded the statement of defence witness Allah Bachayo and Haji. Thereafter, statements of prosecution witnesses as well as defenc witnesses were recorded under Section 164 Cr.P.C. before the Judicial Magistrate on 29.11.2000. The prima facie allegations were against the accused Gamoon, hence he was challaned while other three accused were kept in Column No, 2 of the challan sheet due to lack of evidence against them during investigation. He had produced the report of Chemical Examiner as Ex.23. In the cross- examination, the I.O. admitted that it is correct to suggest that as per his investigation accused Basar, Natho and Khameso were innocent. He further admitted that the prosecution witnesses as Well as defence witnesses in their 164 Cr.P.C. statements had not implicated the accused Basar, Natho and Khameso. In the cross-examination conducted by the advocate of pauper accused Gamoon and Khameso, the witness stated that the recovery of hatchet was effected from accused Gamoon and the village was consisting upon five or six houses. The accused had produced the hatchet from the bushes which were adjacent to his house. Both recovery mashirs Ali Bux and Soomar were already in the above village. Complainant was also available in the house when he recovered the hatchet from accused. There was no any other person available at the time of recovery of hatchet excepting aforesaid mashirs. 10.The PW-5, Ali Nawaz Tapedar (Ex.24) deposed that on 30.7.2004, he had prepared the sketch of the vardat. The place of incident of this case is Deh Kamaro and it is adjacent to the village of Memons. He produced the sketch as Ex.25. The witness stated in the cross-examination that all the points drawn by him in the sketch does not mention the location of houses of the complainant and P.Ws Ramzan and Bilawal. He admitted that the house of complainant and P.W Ramzan and Bilawal are far away from the place of incident. 11.The PW-6 Muhammad Ayoub (Ex.26) deposed that on 4.11.2000, he was posted as ASI/Duty officer at P.S Badin. The complainant came to PS and the witness had lodged the FIR verbatim. He noted the injuries and prepared mashirnama in presence of mashir Ali Bux and Soomaro and obtained their signatures on the mashirnama. He proceeded to the place of incident and prepared mashirnama in presence of mashirs. He had also recorded the statements of P.Ws Ramzan and Bilawal under Section 161 Cr.P.C. In the cross-examination, he admitted that the complainant has
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not stated in the F.I.R. who caused lathi or hatchet injuries to the injured Lakhadino. He further testified that the place of incident is at the distance of 4/5 acres away from the house of complainant. He admitted that there was no blood at the place of incident. 12.On 5.1.2006, the D.A, further give up the prosecution witness namely P.0 Wahid Bux, The P.W-7, Dr. Muhammad Aslam (Ex.29), deposed that on 4.11.2000, he was posted as Medical Officer, Civil Hospital Badin. He examined the injured Lakhadino and found the following injuries on his person:-- 1. A vertical lacerated wound on the left side of head at the anterio frontal region measuring 5.5 CM x 1 CM x bane expose. 2. Vertical bruise with swelling on the right side of back of chest at the angle of left scapula measuring 11.5 CM x 2.5 CM 3. Vertical bruise with swelling on the right shoulder region measuring 12 CM x 2 CM. 4. Transverse bruise with slight swelling on the upper portion of left buttock measuring 4 CM x 1 CM. 5. Oblique bruise with slight swelling 6 CM x 2 CM on the lateral side of left buttock. 6. Oblique bruise with diffuse swelling on the left buttock medial to Injury No, 5 measuring 6 CM x 2 CM. 7. Abrasion measuring 2.5 CM x 1 CM on the posterior side of right sacroiliac junction. 8. Abrasion 1 CM x 1 CM proximal to Injury No, 7. 9. Transverse bruise measuring 12.5 CM x 2 CM on the right buttock. He found a lacerated injury at the frontal region on left side beneath that some blood found, corresponding to Injury No, 1. According to him, after separating the scalp flap fracture of left frontal and parietal bones were seen beneath the injury corresponding to Injury No, 1. There was also laceration on brain with hemorrhage limited to small area was seen on the left side on localized area just beneath the injury corresponding to Injury No, 1, while other remaining organs were found healthy except right acromion bone which was fractured at its tip corresponding to Injury No, 3. In his opinion, the deceased died due to intracranial hemorrhage and shock due to Injury No, 1 which was individually sufficient to cause death in ordinary course of life. As regards the kind of weapon, he deposed that it was hard and blunt substance. 13. The statement of appellants was recorded under Section 342 Cr.P.C. Appellant Gamoon in his statement stated that the case is false and managed by complainant party due to enmity but he did not examine himself on oath nor led any evidence in his defence. Appellant Khameso also did not examine himself on oath nor led any evidence in defence:Appellant Natho examined himself on oath and he also stated to lead evidence in his defence and suggested names of witnesses and the appellant Basar did not examine himself on oath but he had also suggested the name of witness to lead evidence. The appellant Natho in his statement on oath stated that on the day of incident he was available in his house. Co-accused Basar and Khameso were not with him at that time. He further stated that during investigation, he, Basar, and Khameso were let off by the police. In the cross-examination he denied the suggestion that he along with co-accused Khameso and Basar caused blows with lathi and committed the murder of deceased Lakhadino. He further denied the suggestion that in connivance of the I.O. of the case statement under Section 164 Cr,P.C. was managed and on that basis Natho and two other accused were let off by the police. 14. On 8th April 2011, both the learned counsel appearing for the appellants argued that this appeal is pending since 2006 and according to the Jail Roll submitted in this Court on 6th April 2011, all the appellants have already served substantive portion of their sentence of 10 years, 4 months and 23 days and also earned remission for 6 years, 4 months and 27 days and after including the remission earned, the unexpired portion of sentence is 8 years, 8 months and 10 days with fine. Due to long pendency of appeal since 2006 and somewhat a frustration, both the learned counsel urged that the appellants may he released on the basis of sentence already undergone and sought time to address the Court on this point.
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15. According to Rule 140 of Pakistan Prison Rules 1978, it is clear that imprisonment for life means twenty five years rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment. For the convenience, Rule 140 of Pakistan. Prison Rules 1978 is reproduced as under:-- 'Rule 140--(i) Imprisonment for life will mean twenty-five years' rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment. (ii)The case of all prisoners sentenced to imprisonment for life shall he referred to Government, through the Inspector General, after they have served fifteen years substantive imprisonment for consideration with reference to Section- 401 of the Code of Criminal Procedure. (iii)The cases of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty-five years or more shall be submitted to Government, through the Inspector General, when they have served fifteen years substantive sentence for orders of the Government. 16. Since, the portion of substantive sentence served by the appellants was less than fifteen years, therefore, keeping in view Rule 140 of Pakistan Prison Rules, 1978, I was not inclined to order the release of the appellants on the, sentence already undergone and re-fixed the matter for hearing and called upon the learned advocates to argue the case on merits. 17. The learned counsel for the appellant argued that there are glaring contradictions and discrepancies in the evidence of the testimony of prosecution witnesses which shows that the prosecution has failed to prove the guilt of the appellants beyond any reasonable doubt. They further argued that the eye-witnesses are interested and relative to the deceased, therefore, their testimony is not inspiring confidence. It was further averred that except the appellant Gamoon, all other appellants were let off by the police and their names were placed in Column No, 2 of the .challan but learned Trial Court declined to accept the recommendation and tried the case against them also. It was further averred that it is a matter of record that no material evidence has come on record to connect the appellants. Finally the learned counsel for the appellants argued that all the appellants deserve acquittal as prosecution has failed to prove their guilt by trustworthy testimony. In support of their contention, the learned counsel for the appellants relied upon the following case law:-- 1. 1997 SCMR 1076, (Umar Hayat v. State). In this case. It was held that eye-witness being admittedly related inter se and with the deceased, their evidence needed corroboration which was lacking. Motive for the occurrence was not proved. Torch on the basis of which the accused were identified was not produced before the police. Sotas being not blood stained their recovery was of no consequences. 2. 1987 P.Cr.L.J 1364, (Amir Bux vs. State). It was held in this case that complainant stating in the FIR about his having seen the accused inflicting injuries to deceased but at the trial stating to have seen accused standing at spot armed with pistol and hatchet and deceased lying dead with many injuries on his person. 3. PLD 1982 Karachi 975, (Abdul Hakeem vs. State). In this case, it was held that eye-witness interested in inimical towards accused. Testimony of such witness suffering from inherent weaknesses and improbabilities and remaining uncorroborated. Presence of eye-witness at spot of occurrence doubtful. 4. 2008 SCMR 95 (Liaquat Ali vs. State). In this case, it was held that the prosecution witness who was first cousin and brother-in-law of deceased claimed to have seen the occurrence from a distance of 30 feet. Two other witnesses were also attracted to the spot but none had rescued deceased and accused had free hand to inflict as many as nine injuries on the persons of deceased. Accused was allegedly a single assailant and if said witnesses were there at the spot they could have easily overpowered the accused. 5. 51991 P.Cr.L.J 761 (Muhammad vs. State). In this matter, it was held that recovery of lathis could
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not be used as corroboration of ocular evidence as the same were not blood stained. Ocular evidence was interested, inimical, contradictory and unreliable and the same was not corroborated by any other source. 6. PLD 2001 SC 378, (Muhammad Yaqoob vs. State). The Honorable Supreme Court dilated upon the provisions as contained in Section 34 PPC and held that it is neither punitive section nor does enact a rule of evidence but mainly relates to the concept of joint liability, it simply means that if two or more persons intentionally commit an offence jointly which amounts to as if each of them had committed it individually and they will have to share the consequences jointly subject to the condition that at the time of commission of offence each of them remained present (a mere presence at spot would not be ipso facto sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of intention) and the offence was committed with common intention which presupposes prior concert. It must be proved that the offence was committed in concert pursuant to the prearranged plan. It was held a few decades earlier by this Court which still holds the fields that "it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. 1993 SCMR 2236 (Anil Phukan v. State of Assam). In this case the Supreme Court of India has held that where the alleged single eye-witness being a close relative of deceased was an interested witness and though alleged to be present at place of occurrence but did not attempt to save deceased and also his statement about time of occurrence was contradictory to medical evidence, the testimony of said eyewitness could not be relied upon for conviction of accused. Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his relative and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and, therefore, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial. 6. 1998 SCMR 279 (Muhammad Ashraf & 2 others v. The State). In this case the hon'ble Supreme Court has held that Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. Medical evidence can hardly serve as a piece of corroboration to the interested ocular testimony where involvement of accused in the case is itself in doubt on account of ocular testimony having been furnished by witness inimical to him. 9. 1993 SCMR 417 (Ashiq Hussain v. The State). In this case the hon'ble Supreme Court has held that ocular version was not consistent with medical evidence. Eye-witnesses were not reliable and their presence at the spot was doubtful. Recovery of gun from accused after 13 days of his arrest and matching of pieces of butt recovered from the spot with the said gun was highly doubtful. Evidence of motive was not satisfactory. Defence plea, even if not proved, was sufficient to cast doubt on the credibility of the prosecution case which was even otherwise was also doubtful. Accused was acquitted on benefit of doubt in circumstances. 18. The learned DPP argued that the testimony of eye-witnesses is inspiring confidence and there evidence is also in line with the medical evidence. The doctor who conducted the post-mortem has deposed the nature of injuries and he further deposed that the death had occurred due to hemorrhage and shock due to Injury No, 1 individually and collectively all and Injury No, 1 was
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sufficient to cause death in ordinary course of life. However, he argued that the ocular evidence of lathi blows is not supported by medical evidence and the appellant Khameso. Natho and Basar were let off by the I.O. and their names were placed in Column No, 2 of the challan. The I.O. recorded statements of P.W Shard. Abdullah and Younis during investigation and also recorded the statement of defence witnesses Allah Bachayo and Haji and on the basis of their statements the names of appellant Khameso Natho and Basar were kept in Column No, 2 and he is of the view that even in the evidence no trustworthy testimony has brought on record which may show that the death of deceased was occurred due to lathi blows therefore, he has no objection if except the appeal of Gamoon, the appeal of other three appellants Khameso, Natho and Basar is accepted and they are acquitted. 19.After hearing the pros and cons, I am of the view that the evidence of interested witness is not fetal unless the evidence of interested witnesses who are the relatives of the deceased is not inspiring confidence. If the ocular evidence is found trustworthy and inspiring confidence, the same cannot be discarded merely for the reason that the witnesses are interested or related interse. It is settled law…
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