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Petitioner: ALI NAWAZ AND 2 OTHERS VS Respondent: THE STATE
1988 P Cr
1988 P Cr. L J 2184
[Karachi]
Before Allahdino G. Memon, J
ALI NAWAZ and 2 others--Appellants
versus
THE STATE--Respondent
Criminal Appeal No.89 of 1986 (Hyd.) and Criminal Appeal No.60 of 1987 (Kar.), decided on 11th February, 1988.
(a) Penal Code (XLV of 1860)--
---Ss. 302, 387, 147 & 148/149--Ocular testimony, appreciation of- Benefit of doubt--Background of enmity between parties admittedly existing--Witnesses allegedly cutting grass near place of Wardat--Land not belonging to them--Place from where gross was cut, not shown to Investigating Officer--Witnesses not ordinarily working near Wardat--Statements of witnesses under S.164, Cr.P.C. showing complainant having, reached Wardat after occurrence--Complainant claiming to be eye-witness--Complainant, deceased and injured witness allegedly stopped while going on motor-cycle--No marks of wheels shown in Mashirnama of place of occurrence--Complainant not receiving any injury although driving motor-cycle--Injured witness not telling truth--Hatchet and Lathis recovered from accused not stained with blood- Complainant found not present at Wardat- Other two witnesses were interested, related and chance witnesses--Ocular evidence to form basis of conviction in background of enmity, held, would require independent corroboration--Accused acquitted by giving benefit of doubt in circumstances.
Lashkari and 4 others v. The State PLD 1981 Kar. 1 and Ghulam Sikandar and another v. Mimraz Khan and others PLD 1985 S C 11 ref.
(b) Penal Code (XLV of 1860)--
---Ss. 302, 307, 147 & 148/149--Injured witness, evidence of--Two accused allegedly firing at deceased and witness--Only one empty found at spot--Medical evidence not clearly showing witness receiving injuries during occurrence or in some earlier incident--Witness reaching hospital within two and half hours of occurrence--Doctor giving age of injuries as within 24 hours--Presence of injured witness at place of Wardat, held, could not be doubted but mere stamp of injuries on his person would not prove that what he said was nothing but truth.
A.Q. Halepota for Appellants.
Zaheer Qureshi for the State.
Date of hearing: 19th May, 1987.
JUDGMENT
The appellants and co-accused Mir Hassan and Mehram were charged under sections 302, 387, 147, 148 and 149, P.P.C. and were tried before the learned Ist Additional District and Sessions Judge, Nawabshah, who has convicted appellants Ismail and Ali Hassan under section 302/34/149 P.P.C. and sentenced them to suffer imprisonment for life and fine of Rs.5,000 each in default to undergo further R.I. for one year, appellants Ali Nawaz, Ismail alongwith Ali Hassan have also been convicted under section 307 read with section 34, P.P.C. and sentenced to suffer R.I. for seven years and fine of Rs.5,000 each or in default to suffer further R.I. for six months. The fine if recovered, 50% of the same was to be paid to the legal heirs of deceased Qurban Ali. The appellants were allowed concession under section 382(B) Cr.P.C. All the sentences were ordered to run concurrently.
The brief facts of the prosecution case are that on 1-10-1983 one Samandar Khan lodged a report at P S. Kazi Ahmad District Nawabshah, inter alia, alleging therein that Hakeem and Lal Bux by caste Abro are his Haris. About two months back a quarrel had taken place between Lal Bux Abro and Mir Hassan over widow Abdur Rehman Abro named Mst. Sahabzadi and her daughters Mst. Pathani Mst. Sarn and Arbab Zadi. The above women were produced before the Court of Civil Judge, Sakrand, and the Court handed over the custody of the women to Lal Bux. On this Mir Hassan and others were annoyed. They came to the complainant and others and asked them to eject Lal Bux from land. The complainant told them that "you both the parties are related inter se, they have nothing to do with any one." On which they observed that it will not be good for them. Today in the evening, the complainant, his brother Qurban Ali, and Ahmad son of Allah Dine Abro were returning on Motor Cycle. When they reached Inspection Path of Ujjah Canal near land of Sirai Ismail Parhyar they found that branches of trees were placed ahead on the Inspection Path. They alighted from Moter Cycle and started removing the branches. In the meanwhile at about 5-30 p.m. Mir Hassan son of Darya Khan and Mehram son of Khanu armed with country-made pistol. Ali Nawaz son of Dino armed with hatchet. Ali Hassan son of Dino and Ismail son of Ibrahim all caste of Abro armed with Lathis emerged out from burrow-pits. Mir Hassan abused and observed that they had prevented the complainant party from backing Ahmad and others, saying so Mir Hassan and Mehram fired on them point-blank and Qurban Ali and Ahmad were injured. Ali Nawaz inflicted hatchet blows to Ahmad. Ali Hassan and Ismail inflicted Lathi blows to Ahmad and Qurban. They raised cries on which Mohammad Bachal and Mohammad Urs Parhyra came running raising cries. They also witnessed accused inflicting blows to Qurban and Ahmad. The accused then went away abusing through the burrow pits. Thereafter they saw that Qurban Ali had sustained pistol shots on his abdomen, arms and other parts of his body. He had also received Lathi blows on his head from which he was bleeding. Ahmad had sustained hatchet and Lathi injuries on his head and other parts of his body. Leaving the above witnesses at the dead body, he carried injured to hospital Kazi Ahmad. After leaving the injured there, he went to the police station and lodged the report.
The above F.I.R. was recorded by Naseer Hussain Shah A.S.I.P. and the same has been produced as Exh.13. On 2-10-1983 Naseer Hussain Shah visited the Wardat which was near Mashaikh Shakh, prepared Mashirnama of Wardat and secured one empty and ore live cartridge and sealed the same. He also secured blood-stained earth from the Wardat, prepared such Mashirnamas which has been produced as Exh.27. Due to election he could not visit the site on 1-10-1983. He had prepared inquest report of the dead body of deceased Qurban Ali which has been produced as Exh.36. He had also visited Civil Hospital Kazi Ahmad on 1-10-1983 and prepared Mashirmana of injuries on the person of Ahmad and the same has been produced as Exh.26. He sent the dead body for post-mortem. He examined PWs Mohammad Bachal and Mohammad Urs at the Wardat. He went to the houses of the accused but they were not available there. He searched the houses of accused Mir Hassan and Ismail but nothing was recovered he prepared such Mashirnama which have been produced as Exhs.37 and 38. On 19-10-1983 he sent a letter to Tapedar for Site Inspection. On 22-10-1983 accused Mir Hassan, Ali Nawaz and Mohammad Ismail were produced at P.S. by Gulah Jam, he arrested them under Mashirnama which has been produced as Exh.39. On interrogation accused Ali Nawaz agreed to produce one hatchet and led him and the Mashirs to his house, produced the same from the western side of his hedge. The hatchet was not blood stained. He prepared such Mashirnama and the same has been produced as Exh.29. Accused Mohammad Ismail produced Lathi which was also not blood-stained. He secured the same, prepared such Mashirnama which has been produced as Exh.28. On 4-11-1983 he arrested accused Mehram and Ali Hassan from Kazi Ahmad Bus-stand in presence of Mashirs and prepared such Mashirnama which has been produced as Exh.22. After interrogation accused Mehram led him and the Mashirs to Jungle near Railway Line, Kazi Ahmad, and produced a pistol from reed bushes. He secured the pistol, sealed it, and prepared such Mashirnama which has been produced as Exh.23. Accused Ali Hassan led Police and Mashirs to his house and produced Lathi from his hedge which was not blood-stained, he prepared, such Mashirnama and the same has been produced as Exh.24. On 5-11-1983 he produced PWs Mohammad Urs, Mohammad Bachal. and Ahmad before Mukhtiarkar, Nawabshah and got their statements under section 164, Cr.P.C. recorded. The accused were also brought before the Mukhtiarkar for cross- examination, but no notice was given to them in writing. He had filed a separate case under section 13-D of Arms Ordinance against accused Mehram. After investigation the accused were challaned before the Court.
A forma: charge was framed against the appellants and the co-accused to which they pleaded not guilty.
At the trial prosecution examined complainant Samandar Khan P.W.1, he has produced the F.I.R. as Exh.13, Ahmad an injured eye-witness PW.2, Mohammad Urs an eye-witnesses P.W.3, he has produced his 164, Cr.P.C. statement as Exh.16, Mohammad Bachal an eye-witness P.W 4, he has produced his 164, Cr.P.C. statement as Exh.18, PC, Ahmad Khan P.W.5, Mashir Ali Mohammad P.W.6, he acted as Mashir of arrest of accused Mehram and Ali Hassan and has produced the same Mashirnama as Exh.22. Accused Mehram had produced pistol from reed bushes under Mashirnama which he has produced as Exh.23. Accused Ali Hassan has produced Lathi with iron plate from northern hedge of his house which was not blood-stained. Police secured it and prepared such Mashirnama, which he has produced as Exh.24. Mashir Hakim Ali P.W.7, had acted as Mashir of injuries on the person of injured Ahmad and the Mashirnama has been produced as Exh.26. The police had visited the Wardat and prepared such Mashirnama in his presence which has been produced by him as Exh.27. Accused Ismail had led Police and Mashirs to a place and produced one Lathi in his presence which was not blood-stained. He has produced the said Mashirnama as Exh.28. Accused Ali Nawaz produced hatchet from reed bushes in the west of his house. The hatchet was not blood-stained, such Mashirnama was prepared, and he has produced the same as Exh.29. Dr. Mukhtiar PW.8 had conducted post-mortem on the dead body of Qurban Ali and the post-mortem has been produced as Exh.32. He had also examined injured Ahmad and has produced the initial medical certificate as Exh.33 and final medical certificate as Exh.34. A.S.I.P. Naseer Hussain Shah PW.9 he had conducted the investigation and challaned the case. Tapedar Mohammad Ibrahim P.W.10, he had prepared the sketch of Wardat and the same has been produced as Exh.44.
After close of the prosecution case the statements of the accused were recorded in which they denied the allegations, and further stated that they were innocent and were implicated due to enmity. The accused examined one Ahmad in their defence. When the case was fixed for judgment two of the accused namely Mir Hassan and Mehram absconded, and, therefore, the process was issued against them but the same could not be served, therefore the judgment was passed against present appellants on 11-8-1986 by which they have been convicted as described above. The present appeal is directed against the above judgment of conviction.
Dr. Mukhtar Ahmad who had conducted post-mortem on the dead body of deceased Qurban Ali had found the following injuries on his person on external examination:-
(1) Lacerated punctured wound 1.5 cm in diameter over the left side of arm. The wound was traversed internally in muscular tissue. There was no charring.
(2) Lacerated punctured wound 1 c.m. in diameter over the left side of chest, below the axilla. Wound traversed deep in the chest. No charring, no sooting present. Margins were inverted. (wound of entrance).
(3) Lacerated punctured wound 1 cm in diameter over the right side front of lower abdominal wall. No charring, no sooting present. (Wound of entrance).
(4) Lacerated punctured wound 1.2 cm in diameter. Margin everted, over the back side of the injury No.3 wound through and through (wound of exit).
(5) Lacerated wound 1.5" x 1/2" x scalp deep over the right side of forehead,
(6) Lacerated wound 1.5" x 1/2" scalp deep over the occipital region of scalp.
On internal examination he found the following damage:-
The right side of abdominal wall was ruptured by punctured wound of pallet and muscle was torn. The wall of the chest was punctured by pallet below the axilla on the left side wound was dissected internally. The left pleurae was ruptured at the upper level and it was filled with blood. The wound was through and through. The left lung was also found lacerated and punctured causing the damage to the vital tissue. The left lung was swollen filled with blood due to rupture of pulmonary vessels. The pallet was found at the left hum of left lung. The stomach was empty, small intestines were containing liquified food material. The scalp was lacerated at the right side frontal region and occipital region.
From the external as well as internal examination the Doctor was of the opinion that the cause of death was injury to vital organs such as lung causing severe internal haemorrhage and shock. Injuries Nos. l, 2, 3 and 4 were caused by fire-arm within the range of 30 feet, while injuries No.5 and 6 were caused by hard and blunt substance such as Lathi. All the injuries were ante-mortem in nature. Injury No.2 was sufficient to cause death, while all the other injuries collectively in normal course of life. The death was instantaneous in nature. The time which elapsed between the death and post-mortem was about 16 hours. He issued such post-mortem report and the same has been produced as Exh.32. He had also examined injured Ahmad and found the following injuries on his person:-
(1) Lacerated punctured wounds of 1 cm over (i) Right forearm (ii) front of right shoulder joint, (iii) right dorsum of right little finger, (iv) front of right side chest, (v) gutter-shaped laceration top of right shoulder. Marging inverted, no charring, no sooting present.
(2) An incised wound 7 cm x 1.5 cm x scalp deep curve shaped over the right parieto-occipital region of scalp.
(3) An incised wound 5 cm x 1 cm x muscle deep over the right eye-brow.
(4) Lacerated wound irregular shaped 4 cm x ? cm x scalp deep over the frontal region of scalp.
(5) Lacerated wound 4 cm x 1 cm x scalp deep over the top of the scalp.
(6) Lacerated wound left parietal region of scalp 4 cm x 1 cm x ? scalp deep
According to him injury No.1 was simple in nature caused by fire arm. Injuries Nos.2 and 3 appeared to have been caused by a sharp cutting weapon and were grievous in nature. Injuries Nos.2 and 3 were caused by a sharp cutting weapon, whereas the remaining injuries were caused by hard and blunt substance. All the other injuries were simple in nature except Injuries No.2 and 3. The shots were fired within the range of 20 feet. X-ray, chest right shoulder shows pallet and X-ray skull shows the right parietal bone and depressed fracture of left parietal bone. He issued such certificate. He has produced the initial certificate as well as final certificate as Exhs.33 and 34.
Complainant Samandar Khan P.W.1 has supported the contents of his F.I R and has further deposed that he went on Motor Cycle upto five miles Bus stop on National Highway, and brought Datsun Pick-up from there He took injured in that Pick-up of Kazi Ahmad Hospital leaving P.Ws. Urs and Bachal over the dead body. Then he went to P.S. and lodged his report. In cross-examination he has admitted that sister of P.W. Urs is married with his brother Bahi Khan Mitto is his cousin. Hakeem Mashir is brother of P.W. Urs. The deceased Qurban Ali and P.W. Urs and Bachal used to reside in the same village Their village will be about one and half furlongs away from the place of incident. There are about 100/150 houses in their village and people of different castes reside there. There are houses of Punjabis about one Furlong away from the place of incident. The accused had fired four shots at them. The ladies named by him above were related to the accused. He has admitted that about 14/16 months after this incident Mst. Arbab Zadi was murdered. Khan father of accused Mehram had made an application to authorities alleging that before them the complainant party had killed her. He has admitted that before this incident 107, Cr.P.C. proceedings were also registered against the persons of both the parties. Khamiso his cousin was murdered about 14/15 months back and Siddique Dayo was accused in that case. He denied that his brother Qurban had got Siddique implicated in this case. It was possible that the gun shot reports and cries might have been heard at their village. When he had returned back from P.S. during the night, many persons had collected there.
P.W. Ahmed has deposed that there was dispute between them and accused over the widow of Abdur Raheem Abro and her daughters. Court had handed over those ladies to Lal Bux and Hakeem. Hakeem is his cousin while Lal Bux is his uncle. His further evidence is identical to that of complainant. He has admitted in cross-examination that his wife has filed suit for dissolution of marriage against him but it was filed about two months after this incident. The ladies were at P.S. for about one week: Ladies had made complaint against accused, and then the police had come in motion. PW Bachal was not cousin of complainant Samandar Khan but he is related to him.
P.W. Mohammad Urs has deposed that he was cutting grass from his Harap land when the present incident took place. PW Mohammad Bachal was also cutting grass with him. Immediately after PW. Mohammad Bachal started cutting grass they heard cries of 'murder' murder' towards Rain Shakh. They rushed towards that side. When they reached at the inspection path they saw accused Mir Hassan and Mehram armed with pistols, Ali Nawaz had hatchet, while Ismail and Ali Hassan had Lathis. Mehram and Mir Hassan fired at Qurban Ali and they were injured. Ali Nawaz gave hatchet blows to Ahmad, Ismail and Ali Nawaz gave Lathi blows to Ahmad and Qubran. Complainant Samandar Khan was standing at some distance on his Moter-cycle He was raising cries. They gave 'Hakal' to accused asking them not to murder persons but the accused threatened them. The injured then fell down and the accused went away. The complainant then went to bring vehicle leaving him and P.W. Bachal at injured Ahmad and deceased Qurban Ali. He then brought Datsun Pick-up and took injured Ahmad Khan leaving them over the dead body. Many persons had collected at the Wardat during night. Complainant had returned back during night but police came in the morning. In cross-examination he has deposed that he did not know in whose name his Harap land is entered in the record of rights, but he is Hari of the family of Nibhao Khan. The Guwar cultivation where they were cutting the grass will be about 30/35 paces from the place of incident. They heard cries and rushed towards that side whereafter the shots were fired. He denied to have stated in 164, Cr.P.C. statement that they heard cries and firing then rushed towards Wardat. Voluntarily stated that they heard cries and shots were fired thereafter. There is no note by the Court that in 164 Cr.P.C. statement it is stated that shots were fired and cries were raised then they went towards there. His sister was married with Bhai Khan brother of complainant. P.W. Bachal was not related to him but was his caste fellow. Bachal works as carpenter at Kazi Ahmad. He had not cultivated grass. Samandar Khan had also come at the injured persons running and reached at them. Mashir Hakim is his brother. He did not remember if Ismail and Nibhao Khan had also come at the place of incident during night. He denied a suggestion that incident had taken place at 8-30 p.m. He knew Sadiq Unar. Ahmad Sial was his driver on his tractor, Ahmad Sial sometimes resides at his village and sometimes in the village of Sadiq Unar. His village is about one mile away from the place of incident. He denied that Ahmad Sial driver had seen the injured and deceased lying, and informed them and complainant at their village, and thereafter they went there. He denied that he was deposing falsely at the instance of complainant. He also denied that he was not the Hari of Nibhao Khan.
The evidence of P.W. Mohammad Bachal is similar to that of P.W. Mohammad Urs. In cross-examination he has deposed that he had stated before police that he had come to cut grass from the cultivation of P.W. Mohammad Urs. He denied to have stated before police that he and Mohammad Urs were working in the land of Sir Mohammad Ismail. They are four brothers. Their father is also alive. They all reside in village Nibhao Khan, the village where the complainant also resides. He had admitted that he works as carpenter in Kazi Ahmad Town. The cries and gun reports could be heard at their village from the place of Wardat. Many persons of nearby villages had collected there after the incident but he could not say after how much time after the incident. They might have arrived before or after half an hour at the place of incident. He denied that incident took place at 8-30 p.m. He also denied that Ismail Siyal driver Sadiq Unar had informed them that Qurban Ali and Ahmad were lying injured and unconscious. Voluntarily stated that Ismail is not driver of Sadiq Unar. Previously Ahmad Siyal was driver on tractor of Sadiq Unar. During the days of incident he was not driver of Sadiq Unar on his tractor. He denied a suggestion that he had not seen the incident. In reply to the question put by the Court he stated that he works as carpenter at Kazi Ahmad Town. That he usually returns back to his village in the evening and goes there in the morning. Sometimes he used to cut grass for his cattle and sometimes some of his brothers as they were joint with each other.
P.W. Ali Mohammad Mashir has deposed that police had arrested accused Mehram and Ali Hassan in his presence at Kazi Ahmad Bus Stand, The Mashirnama has been produced by him as Exh.22. Accused Mehram led them and the police had produced one country-made pistol from reed bushes. The place was about 7/8 miles away from Kazi Ahmed. It was sealed in his presence and such mashirnama was prepared which he has produced as Exh.23. Thereafter accused Ali Hassan led the Mashirs and the police to his house and produced iron-plated Lathi from the northern hedge of his house. It was not blood stained. Police prepared such Mashirnama which he has produced as Exh.24. In cross-examination he has admitted that there are hotels and shops at Bus stand at Kazi Ahmad, petrol pump is also near the Bus-stand. People are also available on shops or reeds in between two places. Co-mashir Punhoo is his brother: Their village is about 7/8 miles away from Kazi Ahmad. They had gone to Kazi Ahmad for shopping. Investigating Officer was knowing them before. They were picked up by police while they were sitting in hotel, for arrest of the accused. While passing from the Bus-stand they say' the accused and informed the police that the required persons were available there. The village of the accused is 7/8 miles away from Kazi Ahmad. He denied that on that date he was already in custody of Kazi Ahmad police in connection with one dacoity investigation. But according to him 10/15 days before that he was detained by Kazi Ahmad police as suspect in connection with one highway robbery, but he was found innocent and released. He denied that he was giving false evidence at the instance of the complainant.
Mashir Hakim Ali has deposed that he owns Datsun Pick-up which plies on National Highway between Sakrand and Kazi Ahmad. He had acted as Mashir in that case about 2 years back. On that day at about 5-30 p.m. complainant Samandar Khan had hired Datsun for bringing the passengers from Sakrand. They went to the place of Wardat and brought injured to. Kazi Ahmad Hospital. Dead body of deceased Qurban Ali was not taken by them. Police had seen the injuries on the person of injured Ahmad in his presence and prepared such Mashirnama which he has produced as Exh.26. Then he went in the morning to the place of Wardat. Police inspected the Wardat, secured blood-stained earth and sealed the same. Dead body of deceased Qurban Ali was lying there. Police had also secured one live and one empty cartridge from there. He did not remember if one was sealed or both. They had also seen thorns lying on the inspection path. Such Mashirnama was prepared which he has produced as Exh.27. About 20 or 21 days thereafter he had parked his vehicle at Kazi Ahmad Bus-stand in the morning. A constable came and took him to P.S., as vehicle was required by police. They went there and police brought accused Ismail and Ali Nawaz from the lock-up and put them in their Datsun. They came to the village of the accused. Accused Ismail came down and led them and police produced one Lathi from the cattle dungs. It was not blood stained. Police prepared such Mashirnama which he has produced as Exh.28. Thereafter accused Ali Nawaz led the police to his house which was about 2/3 furlongs away from the village of Ismail. He led the police and Mashirs to a place in the northern side of his house and produced hatchet from reed bushes. It was not blood stained. Such…
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