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Petitioner: UMEED KHAN VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Mehta Kelash Nath Kohli, Akhter Zaman Malghani Title: UMEED KHAN vs THE STATE Case No.: Criminal Appeal No,62 of 2005 Date of Judgment:2005-07-08 Reported As: PLD 2005 Quetta 157 Result: Appeal accepted
JUDGMENT
JUDGMENT MEHTA KAILASH NATH KOHLI, J.---This appeal is directed against judgment, dated 15th March, 2005, passed by learned Additional Sessions Judge-I, Quetta, whereby; appellant Umeed Khan son of Khuda Bakhsh, Caste Shahwani, has been convicted under section 302(b)/34, P.P.C. And has been sentenced to suffer R.I. For imprisonment of life. Benefit of section 382-B, Cr.P.C. Was, however, extended in favour of appellant. Facts of the case, in brief, are that on Fard-e-Biyan of complainant Nabi Bakhsh son of Sarang Khan Caste Pirkani, a report was lodged at Police Station Shalkot, Quetta. In Fard-e-Biyan, complainant alleged that he along with his family was residing with his brother Muhammad Amin in Killi Chiltan, Sariab Road, Quetta. Few days back, brother-in-law of complainant namely Muhammad Ali Shahwani had quarreled with his brother Muhammad Amin son of Khuda Bakhsh on family dispute, upon which, complainant and other relatives had settled the dispute between two brothers. It was further alleged that on the day of incident i,e, 28th August, 2003, complainant along with his brother Muhammad Amin were present in house of their brother-in-law, in the meanwhile, Nabi Dad, Muhammad Alam sons of Muhammad Amin Shahwani had quarrelled with their paternal-uncle Muhammad Ali; complainant and his brother intervened and patched up the matter. On the same day, at about 5-30 p.m. Complainant, his brother Muhammad Amin along with their brother-in-law Muhammad Ali and nephew Muhammad Din son of Muhammad Ali had gone to mosque for offering "Asar" prayers; on return, on their way, Muhammad Alam and Nabi Dad sons of Muhammad Amin Shahwani, residents of Killi Kamaloo, Hazoor Bakhsh son of Khuda Bakhsh Shahwani, resident of Killi Chiltan, Umeed Khan son of Khuda Bakhsh resident of Killi Panday, Mastung present at Quetta, were standing, who on seeing them, started beating them with kicks
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and fists, in the meanwhile, Muhammad Alam made firing with pistol, upon which, a bullet hit Muhammad Amin brother of complainant, which entered in his chest, exited from back and further hit on right leg of one passerby child namely Hakim Zadi daughter of Muhammad Afzal Shahwarti, consequently, both of them sustained injuries and fell down; the above said persons immediately after the incident ran away from the scene. It was further averred that complainant along with Muhammad Din and Muhammad Ali brought his injured brother Muhammad Amin and child Hakim Zadi (overtaken) to Civil Hospital, for medical treatment. Complainant further stated that all the above-stated four persons, in connivance of each other, had committed murder of his brother and, had injured child namely Hakim Zadi. Consequent upon Fard-e-Biyan, F.I.R. No,90 of 2003, dated 28th August, 2003, under section 302/324, P.P.C. Was registered with Police Station Shalkot, Quetta. After registration of case appellant Umeed Ali was arrested, while remaining co-accused persons were declared absconders. After usual investigation, appellant was challaned in the Court of Additional Sessions Judge-I, Quetta. Charge was framed and read over to appellant Umeed Ali, who did not plead guilty and claimed trial. To substantiate accusation against appellant, prosecution produced following evidence: P.W.1. Nabi Bakhsh son of Sarang (complainant). He deposed that incident took place on 28th August, 2003 when Muhammad Amin and Muhammad Ali had a dispute, who are brothers. Witness further deposed that at 5-30 p.m. There was fight at Killi Chiltan, Sariab Road; witness after offering "Asar" prayers came out of the mosque and saw that Muhammad Alam, Hazoor Bakhsh, Nabi Dad and accused Umeed Khan were fighting with his brother, Muhammad Alam made fire with pistol on his brother Muhammad Amin, which hit on his chest and he fell down, upon which, witness and his nephew Muhammad Din took Muhammad Amin to hospital through Datsun; in the meantime, at the place of incident, a girl was also injured due to firing; after firing accused persons ran away from the place of incident; in hospital, injured Muhammad Amin succumbed to injuries. Witness deposed that he gave statement to police in police station. He produced Fard-e-Biyan (Exh.P.1/A) and identified his thumb-impression on the same. Witness also identified accused present in the Court. In cross-examination, witness admitted that accused persons namely .Hazoor Bakhsh and Umeed Khan are real brothers. He admitted that all accused persons i,e, Umeed Khan, Hazoor Bakhsh, Muhammad Alam and Nabi Dad belong to one family and are relatives to each other. He admitted that witnesses Muhammad Din and Muhammad Ali are son and father and they are residing in one house. Witness admitted that witness Muhammad Ali is his brother-in-law and witness Muhammad Din is his nephew. He admitted that absconding accused Muhammad Alam is son of accused Umeed Khan's brother. Witness admitted that accused present in Court is an old person. Witness admitted that his house is situated in Killi Chiltan, while house of witnesses Muhammad Ali and Muhammad Din, is situated in Killi Kamaloo. He admitted that there is distance of 2-1/2 or 3 kilometers between the place of incident and house of witnesses Muhammad Ali and Muhammad Din. Witness showed his ignorance about existence of mosque in Killi Kamaloo or otherwise. He did not know that at what time, he put his thumb-impression on Fard-e-Biyan (Exh.P.1/A). Witness showed his ignorance about the date and time, when police recorded statements of witnesses Muhammad Ali and Muhammad Din. He admitted that Ali Ahmed and Nabi Dad are sons-in-law of witness Muhammad Ali. Witness did not know whether in 1996, accused present in Court got registered a case against Ali Ahmed and Nabi Dad. Witness admitted that he and accused present in Court, are enraged for four years. Witness admitted that accused is his relative. He admitted that accused present in Court and Muhammad Ali have garages at Gahi Khan Chowk, Sariab Road. Witness admitted that there exists single wall, in between both garages; he also admitted that shops are located in front of garages. Witness admitted that house of accused present in Court is
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situated in Killi Panday, Mastung and has Government job at Mastung. Witness showed his ignorance that witness Muhammad Ali had sued accused present in Court, in respect of his garage, situated at Gahi Khan Chowk. He admitted that witness Muhammad Ali and accused present in Court are real brothers. Witness denied that he and Muhammad Ali had gone to the shops and garage of accused present in Court and demanded possession of shops and garage and on refusal of accused, false case has been made against him. It was stated that after half an hour of firing, injured was taken to hospital and police authorities came to hospital; witness remained in hospital for twenty minutes or half an hour. He denied that after negotiations, false case was registered against accused present in Court. Witness denied that he was not present at the place of incident. He denied that he has made false statement. P.W.2 Muhammad Ali son of Khuda Bakhsh appeared in witness-box and deposed that few days prior to incident, his brother Muhammad Amin along with his two sons namely Muhammad Alam and Nabi Dad came to his house and had quarrelled with him, at that time, he was living in Killi Kamaloo, people of Killi gathered and patched up the matter, which was honored by witness's side. It was further deposed that on the day of incident i,e, 28th August, 2003, four accused persons amongst whom one was Muhammad Alarm who made fire shot upon Muhammad Amin with pistol, bullet hit on his chest due to which, he died at the spot; the other accused persons were Umeed Ali (present in Court, who is brother of witness), Nabi Dad, Alam and Hazoor Bakhsh, had beaten deceased Muhammad Amin with kicks and fists; one bullet also sustained injury to a gird' Witness deposed that except accused Muhammad Alam, he had not seen any fire-arm in the hands of remaining accused persons. He stated that in the afternoon at Killi Chiltan, accused persons killed his brother. Witness further deposed that after commission of murder of deceased, accused persons ran away and they brought injured Muhammad Amin to Civil Hospital in a Pick- up, and; injured Muhammad Amin succumbed to injuries. Deceased was his brother-in-law. Witness identified accused present in Court to be the same. In cross-examination, witness admitted that witness Muhammad Din is his son. He admitted that sister of complainant Nabi Bakhsh, is his wife. He admitted that he and witness Muhammad Din, reside in one house. He denied that there is distance of two/three kilometers, in between his house and place of incident; voluntarily stated that the distance from their house is about two miles He admitted that there are many mosques in Killi Kamaloo. Witness admitted that All Ahmed and Nabi Dad are his brothers-in-law. He denied that in 1996, accused present in Court had initiated criminal proceedings against Ali Akbar and Nabi Dad in Levies Station Misting. Witness denied that in this respect, he was angry because accused present in Court had lodged criminal case against his brothers-in-law; voluntarily stated that he has no knowledge of the same. He denied relationship between him and accused present in Court, are not good. He admitted that for seven/eight years, accused had not visited them. He denied that his son Muhammad Din and accused present in Court have no good relations. It was stated that after half an hour of incident, injured was taken to hospital; voluntarily stated that arrangement of vehicle was made for taking injured to hospital. He denied that place of incident is a public way, where remains traffic; voluntarily stated that traffic and public used to come and go, but there remains no rush at the place of incident. He admitted that place of incident is situated in a populated area. It was stated that police had not come to place of incident; voluntarily stated that police had reached hospital after their arrival; witness further stated that police authorities reached after half an hour. Witness stated that it took forty- five minutes in reaching hospital from the place of incident; they remained in hospital for about one hour. Witness stated that he had given statement to police-in hospital; he could not tell as to whether police had recorded his statement first, or registered report of Nabi Bakhsh. Witness stated that he had put his thumb-impression on his statement. Witness admitted that at Gahi Khan Chowk, Sariab Road, garages measuring 10,000 feet each, are belonging to him and accused
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present, in Court. He admitted that there exists single wall in between his and garage of accused. Present in. Court. He admitted that in front of garage of accused present in Court, his shops are located, which have been given on rent and he collects rent in thousands of rupees. He admitted that said garage and shops have no mutation record. Witness admitted that accused present in Court resides in Mastung and also he is employee in P.T.C.L. At Mastnng. He denied that prior to the incident, he had stated that garage of accused present in Court, belongs to him. Witness denied that he along with Nabi Bakhsh (complainant) and his son Muhammad Din had forcibly attempted to occupy garage of accused. He denied that after arrest of accused, he had made hole in the joint wall. Witness denied that prior to incident, his son Muhammad Din and Nabi Bakhsh, complainant of case had threatened accused to give possession of garage to them. Witness denied that prior to incident, when accused refused to give possession of garage, they had threatened him that they will kill him or involve him in false case and get him strangulated. He denied that when his brother Hazoor Bakhsh did not accompany him, witness threatened him. He denied that neither accused present in Court was present at the place of occurrence nor he had committed murder of deceased. Witness denied that he was not present at the place of occurrence. He denied that he deposed against accused, for the reason to occupy his property. Witness denied that he had told Abdul Salam Bangulzai and Takari Muhammad Hussain Shahwani that accused present in Court is innocent; but they will give statement against him. P,W.3. Mansab Khan, A.S.-I. JHe deposed that on 28th August, 2003, he along with constable Muhammad Saleem, S.-I. Muhammad Rafique and S.H.O. Ghaus Bakhsh, in connection with investigation of the case, proceeded In cross-examination, he stated that they reached hospital at about 7-30 p.m. And remained there for half an hour. It was stated that distance between hospital and place of incident, is about 15 to 20 minutes. Witness stated that memos. 'were prepared in the torch-light. It was further stated that S.-I. Rafique hall written the memos. Witness admitted that place of occurrence is situated in a populated place. He admitted that in his, presence, no private witness was called. Witness stated that they remained at the place of occurrence for about 30/45 minutes. He denied that all the memos. Were prepared in police station. He denied that he was not present at the place of occurrence. He denied that he has made false statement. P.W.4. Muhammad Din son of Muhammad Ali. He deposed that he is residing in Killi Kamaloo; his father-in-law Muhammad Amin, Muhammad Alam and Nabi Dad attacked on his house; after the attack, inhabitants of Muhalla had settled the matter between them and Muhammad Amin. It was further deposed that on 28th August, 2003, it was the time of "Asar" prayers; Hazoor Bakhsh, Muhammad Alam, Umeed Khan and Nabi Dad had beaten Muhammad Amin near Masjid-eAqsa and injured him, a person namely Muhammad Alain by making fire with pistol committed murder of Muhammad Amin; the bullet passed chest of Muhammad Amin and entered in leg of a girl namely Hakim Zadi, who sustained injury; witness, Nabi Bakhstt and Muhammad Ali brought Muhammad Amin and Hakim Zadi to hospital in injured condition; after one hour of reaching hospital, Muhammad Amin succumbed to injuries, and; immediately after providing medical treatment, Hakim Zadi was discharged from hospital. Witness further deposed that Hazoor Bakhsh, Muhammad Alam, Umeed Khan and Nabi Dad with common intention, had committed murder of Muhammad Amin. Witness identified accused present in Court Umeed Ali, while remaining accused persons were absconders. In cross-examination, he deposed that witness Muhammad Ali is his father. He admitted that complainant of case is maternal-uncle. He admitted that he resides with his father in one house. He admitted that the place of incident is situated at a distance of 3-1/2 miles from their house. He admitted that in 1996, accused Umeed Khan had lodged a case with Levies Mastung against his relatives Ali Ahmed and Nabi Dad. He admitted that accused persons are relatives to each other.
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He admitted that there is a distance between their house and house of complainant. He admitted that there are several mosques in Killi Kamaloo. He denied that for seven/eight years, they have no visiting terms with accused. Witness did not know exact time, however, stated that they reached hospital after one hour of the incident. It was stated that when they reached hospital, at that time many police persons were present there. It was stated that after the incident, from hospital, he directly went to police station at 8-30 p.m. And remained there for half an hour. He admitted that his father and accused have separate garages measuring ten thousand square feet, each, and there is single wall in between both the garages. He admitted that accused is employed in T&T Department. He admitted that in front of garage of accused, accused had constructed shops, from which he receives rent. Witness denied that he, his father and Muhammad Ali had attempted to forcibly occupy the garage on the pretext that the same belongs to them. He admitted that there a hole is made in the intervening wall; voluntarily stated the same was made by their tenant "Mistari". He denied that they had threatened the accused for involving him in a false case. He admitted that accused is his real paternal-uncle. He denied that for 7/8 years there exists enmity between them. He denied that in his statement under section 161, Cr.P.C., he had not disclosed that Muhammad Amin, Alain and Nabi Dad had not attacked on their house. (Confronted not so recorded). He denied that accused had not beaten the deceased. He denied that he was not present at the place of incident. He denied that they had not shifted injured to hospital. He denied that he has deposed falsely. P.W.5 Dr. Ghulam Sarwar Hashmi appeared and deposed that on 28th August, 2003, he was posted as M.L.O. In Casualty Department, Civil Hospital on the same day, at 7-00 p.m. a person namely Muhammad Amin was brought by his relatives in injured condition. Witness examined the injured; one bullet injury was found on chest of deceased Muhammad Amin, which exited from back, he was in serious condition, he was provided all medical aid and after about five minutes, succumbed to injuries. Witness opined following injuries on the person of deceased Muhammad Amin:- "Injuries:- (1) Entrance bullet wound 1-1/2 c.m. In epigastria. (2) Exit bullet wound 3-1/2 c.m. On back. (3) Very serious, all emergency treatment given in casualty. Referred to Surgical Ward and-expired in Way to ward on same date and time. Cause of death of deceased is injury on chest and damage the vital organ of chest, shock and death caused by fire-arm. Fresh." Witness issued death certificate (Exh.P.5/A) regarding deceased Muhammad Amin and identified his signature on same. Witness further deposed that at the same time a young girl namely Hakini Zadi was brought to hospital at 7-00 p.m. By Haji Muhammad Hassan, who was having bullet injury on her right leg, X-ray was obtained in which bullet was found in her body; she was shifted to Orthopaedic Ward, details of injuries sustained by young girl Hakim Zadi are as under:-- "Injury Bullet entrance wound 1-1/2 c.m. On lower end of Tibia Rt. X-ray shows FB metallic density without fracture. Nature of injury fresh. Weapon used fire-arm." Witness issued medical certificate: (Exh.P.5/B) in respect of injured Hakim Zadi, which bears his signature. Court observations, "in this respect, a Murasla be sent to Director-General Health that the doctor, who had issued medical certificate, is telling the Court that injured (Hakim Zadi) has sustained bullet injury and medical certificate is simple, and; concerned doctor as well as doctors of B.M.C.H. And Civil Hospital are directed to issue proper medical certificate and action be taken against concerned doctor". In cross-examination, witness admitted that in Exh.P.5/A, there is nothing mentioned in respect of any relative. He denied that authorities of Edhi Centre brought Muhammad Amin to hospital.
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P.W.6 Hakim Zadi daughter of Muhammad Afzal was produced, who deposed that she was playing outside, a bullet hit on her right leg, due to which she sustained injury as well as a person was also injured. P.W.7 Ghaus Bakhsh, Sub-Inspector appeared in witness-box and deposed that on 28th August, 2003, he was posted as S.H.O. Police Station, Shalkot; S.-I. Rafique was deputed for conducting investigation in case F.I.R. No,90 of 2003. Witness produced F.I.R. (Exh.P.7/A) and identified his signature on the same. Thereafter, on 30th August, 2003 on the direction of higher officials, witness was deputed for investigation. It was further deposed that during investigation, on 3rd September, 2003, witness with the help of S.H.O. Mastung accused present in Court, nominated in F.I.R. Was arrested and warrants of arrest of remaining accused persons, were obtained. On 17th September, 2003 vide order of higher official of Department, Inspector Muhammad Alam Pirkani was deputed as S.H.O., and; after completion of investigation, accused was remanded to judicial lock-up. Witness produced incomplete challan (Exh.P.7/B) and identified signature of S.H.O. On the same. It was further deposed that on 30th September, 2003, F.S.L. Report (Exh.P.7/C) was obtained; witness produced incomplete challan (Exh.P.7/D) and identified signature of S.H.O. On same. Witness also identified accused present in Court to be the same from whom investigation was conducted. In cross-examination, witness admitted that accused is resident of Mastung. Witness showed his ignorance that accused is employed in T&T Department; voluntarily stated that accused verbally told that he is employee of T&T Department.. Witness denied that accused was arrested when he was performing his duty in T&T Office, Mastung. He denied that he had not conducted proper investigation. P.W.8 Muhammad Rafique, Sub-Inspector deposed that on 28th August, 2003, he was posted as Sub-Inspector in Police Station, Shalkot; through control received information that there was a fight, upon such information, witness along with Ghaus Bakhsh, S.-I./S.H.O. And other police official of police station, proceeded to Civil Hospital, where dead body of deceased Muhammad Amin was lying and one young girl Hakim Zadi was also present in injured condition. Witness further deposed that Ghaus Bakhsh, S.-I. Recorded Fard-e-Biyan of deceased's brother Nabi Bakhsh and sent the same to police station, for registration of case, and; witness was deputed for investigation. Inquest report (Exh.P.8/A) under section 174, Cr.P.C. Was prepared and statements of injured Hakim Zadi as well as of witnesses Muhammad Din and Muhammad Ali, were recorded; thereafter, on the pointation of complainant they proceeded to the place of incident situated at Killi Chilton, where witness prepared site inspection map; he produced the.' same as Exh.P.8/B and identified his signature on same. It was further deposed that blood-stained earth and empty of TT were recovered vide memos. And parcel were prepared; statements of witnesses were recorded. Witness deposed that on the same day, at 11-00 p.m. Complainant Nabi Bakhsh produced blood- stained clothes of deceased in police station which were taken into possession vide recovery mew. And statements of witnesses were recorded; parcel of clothes was prepared. It was further deposed that on 30th August, 2003, case file was entrusted to S.H.O. For further investigation and dead body of deceased was handed over to his heirs against receipt (Exh.P.8/C), witness identified his signature on the same. In cross-examination, witness stated that he reached hospital at 6-30 p.m. He admitted that witness Muhammad Amin in high statement under section 161, Cr.P.C. Had stated that accused persons in connivance with each other had committed murder' of deceased Muhammad Amin. Investigating Officer told that Muhammad Din In his statement under section 161, Cr.P.C. Had stated that accused persons had attacked on them, while there is no such mention, in statement of Muhammad Din recorded under section 161; Cr.P.C. Witness stated that they remained in hospital for about 1-1/2 hours and at 9-50 p.m. Reached the place of incident. Witness stated that he had written the memos. He stated that memos. Were prepared in the headlights of vehicle and they
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remained at the place of occurrence for one hour. He denied that deceased Muhammad Amin was taken to hospital by Edhi authorities. It was stated that complainant of the case had given his oral statement. He denied that complainant had recorded his statement in police station. He denied that on receipt of information of incident, complainant reached police station. Witness denied that Fard-e-Biyan was written in police station. He denied that after negotiation, complainant got registered the case in police station. He denied that complainant and witnesses were not present in hospital. He denied that Fard-e-Biyan of complainant and statements of witnesses were not recorded in hospital. Witness denied that he had not conducted proper investigation in the case. He denied that all the memos were prepared in police station. He denied that he has deposed falsely. After close of prosecution evidence, statement of appellant in his statement recorded under section 342, Cr.P.C. Pleaded that he is innocent and has been falsely involved in the case. He also made his statement on oath under section 340(2), Cr.P.C. Wherein; he deposed that on the day of incident, he was present on his duty at Mastung and was posted as watchman in T&T Office, Mastung. On the eventful day, his duty was from 2-00…
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