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Petitioner: KEWRO and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Majida Razvi Title: KEWRO and others vs THE STATE Case No.: Criminal Appeal No,31 of 1998 Date of Judgment:1999-01-12 Reported As: 1999 P Cr. L J 1619 Result: Appeal accepted
JUDGMENT
JUDGMENT ' The appellants were tried and convicted by the 1st Additional Sessions Judge, Shikarpur for the charge under sections 302 and 395, P.P.C. For life imprisonment for the murder of Abdul Jabbar and Muhammad Hayat. A fine of Rs,50,000 was also imposed against each appellant and in case of default in payment of the said fine sentence to be extended for further two years. It was further ordered that if the fine is recovered the same be paid to the legal heirs of both the deceased as per their shares. The trial Court had further awarded sentence for the charge under section 395, P.P.C., to all the appellants for 5 years' R.I. All the sentences to run concurrently and the benefit of section 382-B, Cr.P.C. Was also extended to the appellants. ' The appellants through this appeal have prayed for examining the correctness, legality and propriety of the impugned judgment and to set aside the same and/acquit them. ' The brief facts as stated in the memo. Of appeal are that on 4-10-1976 Muhammad Hussain (complainant herein) along with deceased Abdul Jabbar and, Muhammad Hayat, Abdul Majeed and Ghuram who were armed with licensed guns started from their village by bus to go to Shikarpur. They boarded the bus at about 4-30 p.m. And on the way to Shikarpur the bus driver stopped the bus at Karampur diversion for taking tea. According to the prosecution, while the deceased Abdul Jabbar and Muhammad Hayat remained sitting in the bus the complainant Muhammad Hussain and P.Ws. Ghuram and Abdul Majeed came down from the bus. Meanwhile, accused Nazar Muhammad alias Nazro, Kewro, Muhammad Amin, Hafeez and Arbab reached the site from the side of the hotel armed with guns and rifles and encircled the bus. They snatched the licensed gun from Ghuram alongwith cartridges and, thereafter, Nazar Muhammad alias Nazroo armed with gun fired at deceased Abdul Jabbar. Similarly, the accused Bakhshan armed with rifle
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fired at deceased Muhammad Hayat who fell down from the seat. Thereafter, the accused Muhammad Amin, Kewiro also fired few shots at both the deceased. It is also stated that accused Arbab and Hafeez also fired at the deceased after entering the bus and then decamped from the place of Vardat taking away licensed gun of Ghuram. The motive given by the complainant was dispute of land between the parties. During the investigation the police arrested the appellant and one Abdul Hafeez alias Hafeezullah and were challenged before the Trial Court. The accused Nazar Muhammad alias Nazroo was shown as absconder in the challan. However, it is stated that accused Abdul Hafeez alias Hafeezullah died during the pending proceedings. Charge was framed on 11-11-1987 and evidence was recorded to some extent when the absconding accused Nazar Muhammad was arrested and fresh charge was framed on 7-7-1991. The Trial Court after recording the evidence and hearing the parties framed the following points for determination:-- "(i) Whether the accused above named duly armed with rifles and guns formed unlawful assembly and committed the murder of deceased Abdul Jabbar and Muhammad Hayat intentionally with their common object on 4th October, 1976 at about 4-30 p.m.? (ii) Whether all the accused persons took away the licensed gun and one bag containing cartridges belonging to P.W. Ghuram while committing the murder of deceased Abdul Jabbar and Muhammad Hayat? (iii) Whether the above named accused are liable to be punished under sections 302, 395, 397, 148 and 149, P.P.C.? ' The findings were given in affirmative and passed the judgment, dated 28-2-1998 impugned herein. Hence, the present appeal. ' The contention of Mr. Azizullah K. Shaikh, the learned counsel for the appellants was that the prosecution completely failed to prove their case beyond reasonable doubt and the trial Judge failed to apply his mind to the evidence on record and passed the impugned judgment which is unwarranted under the law. According to him, the independent witnesses did not support the case of the prosecution and the eye-witness Muhammad Ishaque who also received bullet injuries during the incident did not support the prosecution and yet the learned Trial Court ignored the said evidence on record while giving reasons for conviction and passed the impugned order. ' On the other hand, Mr. Muhammad Ashraf Kazi, the learned counsel for the complainant raised the following contentions:-- (1) That since the incriminating piece of evidence relating to the snatching of the gun and bag of cartridges from P.W. Ghuram by the accused person at the place of incident on 4-10-1976 has not been put to the accused persons in their 342, Cr.P.C. Statement and the case is liable to be remanded to the learned Trial Court as this illegality is contrary to the norms of appreciation of evidence and settled principles of dispensation of criminal justice. (2) Whether the evidence of related witnesses or P.Ws. Could be believed without seeking corroboration? (3) Whether the prosecution has, taken proper steps to serve the complainant in accordance with law and taken all necessary steps for his appearance in Court? (4) Whether the judgment of the learned trial Judge is legal and proper and is liable to be maintained? ' Mr. Habib Ahmed the learned A.A.-G. Supported the case of the appellants. According to him, after going through the evidence on the record, it is clear that the appellants have been wrongly convicted. He further contended that conviction as under section 395, Cr.P.C. For snatching of the gun's is unwarranted as the prosecution failed to recover the same. According to him, the question is whether the evidence of two related eye-witnesses can be believed without any corroborative evidence? He further, contended that although it has been stated that the motive behind the dispute was over the land but no evidence has been brought on record in this respect. Further that
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while the wounds on the body of the deceased are said to be of gun and rifle no ballistic report was called for to prove the same. ' I have heard the learned counsel for the parties and have anxiously gone through the evidence on the record. The F.I.R. Bearing No,52 of 1996 a copy of which alongwith English translation was produced in Court gives the date of incident as 4-10-1976 and the time is given as 4-30 p.m. i,e, during the day. The place is given as Karampur Bus Stand and it was registered at Police Station Khanpur District Sukkur (now Shikarpur). The complainant is Muhammad Hassan Noonari cousin of the deceased and both the deceased were cousin inter se. ' Taking the third contention raised by Mr. Muhammad Ashraf Kazi, the learned counsel for the complainant, first, in regard to the question whether the prosecution took proper steps to serve the complainant in accordance with law and all necessary steps were taken in this regard, Mir Muhammad, A.S.-I. Polic'e Post Nurpur Kot, Police Station Khanpur, in his deposition stated that he received a letter issued by the Court of First Additional Judge for death report. He went to the residence of accused Kewro and accused Hafeezullah and others involved in the case and learnt from the inhabitants of the village that accused Hafeezullah died about two months back and a death report was filed accordingly. Ghulam Hussain, A.S.-I., Police Station Khanpur, District Larkana in his statement stated that he had received summons against P.Ws. Muhammad Hassan, Muhammad Ishaque, Ghuram, Akhtar Shah, Sarfraz, Abdul Majid, P.C. Chattal, Muhammad Ibrahim, H.C. Sardar Shah, A.S.-I. Fateh Ali, S.H.O. Shah Nawaz and Medical Officer Shewat Ram issued by the Court for service. He went to the address and came to know that the "private witnesses named therein have shifted to some unknown place due to enmity and their whereabouts were not known to anybody else" as such they all remained unnerved. He recorded the statement of Nekmards, of the village namely, Hafeezullah son of Haji Ghulam Qadir by caste Bijrani and Kamal Khan son of Muhammad Pinch in this regard. According to him the address of the official witnesses were not properly mentioned in the letter. Hence, notice could not be served upon them and the summons were returned unexecuted. It is strange ,that the process-server, an officer of police, could not ascertain the postings of the other officers and returned summons un served. This statement was recorded in September, 1997. ' Muzaffar Ali Shah, A.S.-I. Police Station Khanpur, District Sukkur in his statement (page 145) deposed that he was entrusted with non-bailable warrants against the complainant Muhammad Hassan son of Amin Bux Noonari and summons against P.W. Ghuram, Abdul Majid and Muhammad Ishaque for execution. According to him, the complainant Muhammad Hassan was working as F.I.A. Inspector at P.I.A. Branch, at Karachi where P.C. Ghulam Rasool went to serve but the complainant after hearing the purpose of the service left his office and did not meet the process-server. The other witnesses were also not available in their houses and a statement of Nekmards, Muhammad Nawaz Noonari and Muhammad Ibrahim Malik was recorded to this effect. They said "Muhammad Ishaque and Abdul Majid are neither resident of their village nor they belong to Noonari Community and are not known to them". His statement was recorded in November, 1997. ' Noor Muhammad another A.S.-I. Of Police Station Khanpur, District Larkana in his deposition stated that he was entrusted with non-boilable warrant against complainant Muhammad Hassan son of Amin Bux Noonari and with summons against P.Ws. Abdul Majid, Medical Officer Dr. Shewat Ram, A.S.-I. Liaquat Ali, H.C. Abdul Wahid, Inspector Sarfraz, P.C. Muhammad Chattal, H.C. Sardar Khan, A.S.-I. Fateh Ali, S.H.O. Shah Nawaz and Tapedar beh Qureshi for execution. He went to the respective addresses and came to know that the complainant Muhammad Hann has shifted to some unknown place since long and his whereabouts were not known. Abdul Majid was also not residing at the given address, S.H.O. Shah Nawaz Khan had expired while the message for the other P.Ws. Was given through wireless. P.C. Muhammad Chattal was served and S.-I. Liaquat Ali, H.C. Abdul WaMd were not served as their addresses and postings were not available. The posting of Dr.
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Shewat Ram was not available, Tapedar of Deh Qureshi was not served as Deh Qureshi was not within the jurisdiction of Taluka Khanpur. The statements of Nekmards of the area Walidad and Abdul Haq were recorded and both of them stated that "complainant Muhammad Hassan had shifted to some unknown place and he will not be served in the near future" and with the said endorsement non-boilable warrants were returned. ' It was under the circumstances that a statement, dated 9-2-1998 was filed by the prosecution stating therein that in view of the statement of A.S.-I. Noor Muhammad, Police Station Khanpur, dated 9-2-1998 that the complainant and remaining official witnesses have shifted to unknown places and their whereabouts are not known while Inspector Sarfraz had expired, the prosecution gave up the remaining witnesses and closed its side. The above statement clearly repels the contention of Mr. Ashraf Kazi, the learned counsel for the complainant that no process was issued against the complainant and, as such, he remained un served. ' The next question arises as regard to the medical evidence on record. Dr. Sehwat Ram, the Medical Officer who conducted the post-mortem on the deceased persons and also treated Muhammad Ishaque, produced a medical certificate of the deceased as well as the injured. His evidence is Exh.No,14. According to him, all the injuries on the body of Muhammad Ishaque appeared to be of simple in nature caused by discharge from fire-arm such as gun etc. He saw the injured person on 5-10-1976 while the incident took place on 4-10-1976. In regard to the cause of death of deceased Muhammad Hayat, the same was "due to discharge of fire-arms such as gun etc. And could have been fired with six feet and injuries have been caused on the left side and could have been fired from right side of the deceased and should have been received by the deceased while standing". He further deposed that "the deceased Abdul Jabbar might have received injuries while in sitting position facing the assailants. While Abdul Jabbar might have received one shot injury deceased Muhammad Hayat had received more than one shot, it could be two or three shots". In his opinion "the death was caused by discharge from fire-arms such as gun etc." There is no report in regard to the two pallets recovered from the body of the deceased sent to concerned S.H.O. Under sealed cover. According to him, probable time between injury and death would be about 3 to 4 hours and between death and post-mortem within 18 hours. ' The pertinent point herein is that while in the opinion of the Medical Officer the injuries were caused by a gun or a rifle the licensed arms in the name of appellants Nos.1 and 2 recovered from their fathers were shot guns and the unlicensed weapon recovered from Arbab was also a single barrel shot gun. In the absence of any ballistic report recovery of empties and any other version, it is difficult to hold that the injuries were caused by the shot guns possessed by the two appellants. Any person of prudent and sound mind would desist from using licensed guns to avoid involvement in a murder. This again creates doubt as regard to the involvement of the appellants in the murder of the two deceased. Coining to points Nos.1 and 2 I will deal with the ocular evidence, Muhammad Ishaque, P.W.1, who was sitting in the bus and is an eye-witness of the incident and had also received injuries in the said incident when asked to identify the appellant/accused stated that "accused are not the same persons (pages 74 and 75). He also stated that "people there could not identify who were the deceased. When the bus came from Shikarpur some passenger identified that they were Noonaris. That passenger also told me that he will go and inform the relatives". (page 74). He further said that he had identified those persons who had fired at them and that his statement was recorded after three days. Akhtar Shah, P.W.2, who was the bus conductor at the time of incident and was taking tea with the bus driver in the hotel in his deposition stated that "he saw three persons running but he could not see them". According to his statement, the police came at about 9 or 10 p.m. But his statement was recorded next morning (page 76). Muhammad Amin Malik, P.W.3 was the bus driver and sitting in the hotel taking tea at the time of incident. He stated that "he saw persons running away". He neither gave the number of
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persons nor any other detail (page 77). All the three persons were examined on 12-5-1977 i,e, immediately after the date of incident and the details of the incident must be fresh in their mind. Ghuram Noonari was the brother-in-law of the deceased Abdul Jabbar and stated to be an eye- witness as he was in the bus with the deceased persons and remained in the bus. He was examined on 26-4-1993 and deposed that the motive behind the murder is land dispute. Another witness Abdul Majeed also a cousin of the deceased as well as of complainant supported the version of the prosecution. Sarfraz Ahmed, Inspector C.I.A. And Investigation Officer was examined and stated on 6-10-1985 before final charge, dated 11-11-1987 that the case was taken away from police to the C.I.A. Centre. No reason was given for such transfer. According to him, on 19-11-1976 he raided the house of the father of the appellant No,2 Muhammad Amin in the presence of two Mashirs, Muhammad Ramzan and Liaquat Ali Bugti both S.-I. Police C.I.A., Sukkur. Liaquat Ali Bugti is the officer who recovered the licensed shot gun from the father of appellant No,2 as well as the shot gun from Lal Bux father of 1(*yro appellant No,1 but was not examined. Both Mashirnamas are of the same date i,e, 19-11-1976 (page 199). He also arrested Arbab on 22-11-1976 alongwith unlicensed gun with three cartridges. Mashirnama is signed by the same two witnesses of C.I.A., Sukkur. The above evidence clearly indicates that the incident which had taken place within the jurisdiction of Police Station Police Post Garhi Tagu and should have been investigated and dealt with by the police of the said area was taken away by the C.I.A., Sukkur for unknown reasons. The raids were conducted by the C.I.A. Officer and the witnesses are also of the C.I.A., Sukkur. If the above facts are taken into consideration keeping the fact in mind that the investigation of the C.I.A. Becomes suspicious and doubtful. ' The above ocular evidence establishes that there are two versions of the incident one given by independent witnesses like P.W. Muhammad Ishaq and P.Ws. 2 and 3 Muhammad Akhtar Shah and Muhammad Amin, the conductor and the driver of the bus who have deposed that they saw some persons running away. Another set of witnesses is of those people who are related to the deceased like Gohram a brother-in-law of deceased, Jabbar and Abdul Majid cousins and complainant who have specifically involved the present appellants with the murder of two deceased persons. While relying on the evidence of any of the witnesses it will be pertinent to keep in view the fact that while Muhammad Ishaq and the two other independent witnesses were examined on 12-5-1977. Gohram and Abdul Majid were examined in 1997 after a laps of about 21 years. As such more reliance can be placed on the evidence of those witnesses who are independent as well as whose memory was fresh at the time when their statements were recorded as compare to those who are interested witnesses and were examined after lapse of about 21 years. In such cases, it is settled principle that the benefit of doubt is to be given to the accused. Reliance can be placed on the case of Safdar Ali v. The Crown PLD 1953 FC 93 wherein it was held that "in a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defense. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defense put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt". In the same case Justice Shahabuddin (as he then was) observed "it is the main principle of criminal law that an accused person must be presumed to be innocent unless and until it is established by the prosecution beyond reasonable doubt that he or she, as the case may be, is guilty. Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it". In another case of Ghulam Hussain v. The State PLD 1972 Lah. 153, it was observed that "it is well-established that where two alternative interpretations of particular situation are possible, the one favorable to the accused has to be preferred. It is equally well- settled that even if a plea has not been specifically raised by an accused in his defense, it shall not
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be denied to him if it can otherwise be reasonably spelt out from the surrounding circumstances". While passing this judgment the learned Court relied on the case of Safdar Ali v. The 'Crown PLD 1953 FC 93. Yet in another case Furqan Haider v. The State 1984 PCr.LJ 1129, it was observed that "when two versions of the incident are before the Court one in favors of the appellant ought to be accepted as laid down by the Honorable Supreme Court PLD 1959 SC 48. ' In the present case, as I have observed hereinabove the versions of the witnesses is entirely different; one referring to some persons and other specifically pointing out at appellants. The very facts, that the F.I.R. Was not produced during the proceedings; that some of the witnesses were examined after a period of 21 years, the complainant and other witnesses avoided to enter into the witness-box and in spite of repeated service including issuance of non-boilable warrants failed to appear and, as such, were given up creates apprehension and doubts to the very veracity of the judgment passed. In my opinion, the principle laid down by various judgment and discussed hereinabove that in case where the prosecution fails to make out a case beyond a reasonable doubt the benefits should go to the accused, is fully applicable in this case. ' The next issue to be examined is that of motive. In the F.I.R. No motive is given. But Gohram one of the witnesses stated in his deposition that the motive behind this incident was land dispute but nothing can be spelt out from evidence that there was such motive behind the incident as no questions were asked in this regard. On the contrary, the appellant No,1 Kewro stated that 'the one witness involved him is cast-fellow of deceased but others have not deposed against him". Muhammad Amin stated that "he is being involved as he acted as Mashir in a case against Noonari but none others spoke against him". Other accused stated that they were being involved due to enmity or being a witness in a case against Noonari. The above evidence disputes the motive as being land dispute. ' Apart from motive the question of timings are also very important while independent witnesses stated that the time when the bus stopped at Karampur diversion was about 2-30 p.m. Or 3-00 p.m. The other witnesses have given time as 4-30 p.m. And the same time is given in the F.I.R. It may further be pertinent to note that the police had come late to the scene of incident and the statement of bus conductor and other witnesses were recorded the next day. ' The most glaring contradictions are in the statement of Gohram and Abdul Majeed which are as follows:-- P.W. Gohram P.W. Abdul Majeed (1) This P.W. States that police with the complainant reached at the place of Wardat after 2-1/2 hours. Page No,125. (2) As per this witness the incident has taken place at 4-30 p.m. Page 124. (3) This witness says that police had not recorded my statements at the place of Wardat and says my statement was later on (1) This witness says that police came at the place of Wardat after 1 or 1/2 hours page No,154. (2) As per this witness the incident had taken place about 3-30 p.m. Page No,153. (3) This witness states that my statement was recorded by police at the place of Wardat and also police recorded the statement of P.W. Gohram at the place recorded by police at Khanpur Police Station. Page No,125. (4) This witness says that two persons boarded in the Bus and fired at the deceased. These two persons were Hafeezullah and Arbab. On page No,127. (5) This witness says some of the bus passengers were known to us. Page No,127. (6) We had some work at Shikar Pur which I cannot disclose. Page No,126. (7) Accused had fired at deceased persons from a distance of about 10 to 15 paces. Page No,127. (8) It is correct that accused Muhammad Ameen is Nekmard and elderly person of his tribe.
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(9) It is also correct that the above named four persons were challenged in a case under section 302, P.P.C. And accused Bukhso was complainant and accused Muhammad Ameen was a Mashir in that case. Page No,128. Of Wardat. Pages Nos.155 to 157. (4) This witness says that two accused persons fired from outside the Bus. While four other accused fired after entering into the bus. (5) This witness states that no passenger was known to me. Page No,155. This witness further says that so many passengers saw the incident but did not enquire from us as to who were the culprits and most of them were known to the culprits. (6) We were coming to Shikar Pur on the day of incident for entertainment. Page No,156. (7) The accused fired upon the deceased persons from distance of 30 to 40 paces. Page No,157. (8) It is incorrect to suggest that Muhammad Ameen is Nekmard of the community. Page No,156. (9) It is incorrect to suggest that accused Bukhso was complainant in murder case in which abovenamed three persons were challaned. It is not in my knowledge that in that case accused Muhammad Ameen was Mashir. Page No,256. All these facts go against the prosecution. The principle laid down in the case of Habibullah v. The State PLD 1969 SC 127 that "where a motive is alleged and the same is found to be false, such evidence of the witnesses must be scrutinized fully" and further "false statement cannot become true merely by its consistent or constant repetitions" is fully…
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