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Petitioner: HAJI MUHAMMAD and 7 others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Shahnawaz Tariq Title: HAJI MUHAMMAD and 7 others vs The STATE Case No.: Criminal Appeal No.D-106 and Criminal Revision No.D-58 of 2010 Date of Judgment:2014-05-27 Reported As: 2014 YLR 2061 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SHAHNWAZ TARIQ, J.---By this common judgment, we would like to dispose of Criminal Appeal No.106 of 2010 and Criminal Revision Application No.58 of 2010, whereby same judgment has been agitated. 2. Through criminal appeal eight appellants namely Haji Muhammad son of Arab Khashkheli, Liaquat alias Yaqoob son of Nimro Khashkheli, Dilshad son of Mir Muhammad Khashkheli, Muhammad Hassan son of Arab Khashkheli, Ghulam Shabbir son of Nimro Khashkheli, Ghulam Mustafa alias Ghulamon son of Arab Khashkheli and Allah Bachayo son of Allah Doti Khashkheli, have sought their acquittal from the conviction, while by criminal revision application, the complainant Neelaram has prayed for enhancement of sentence already awarded to the appellants. Both parties have assailed the impugned judgment dated: 25-2-2010 passed by the Court of learned IInd Additional Sessions Judge, Mirpurkhas in session case No.27 of 2002, whereby all the above named appellants were convicted and sentenced to suffer rigorous imprisonment for life. They have also been directed to pay an amount of Rs.50,000 each as compensation to the legal heirs of deceased Gobindram as required under section 544-A, Cr.P.C. And in case of default of payment of compensation amount, to suffer S.I for six months more. However, benefit of section 382-B, Cr.P.C. Has been extended to the appellants. 3. During the pendency of instant appeal, appellant Nimro Khashkheli son of Obhayo and the complainant Neelaram, expired, therefore, proceedings against appellant Nimro were abated. 4. Precisely, the facts of prosecution case are that complainant Neelaram lodged F.I.R. On 10-2- 2002 at 1530 hours, stating therein that he is partner of Seth Gobindram in his business, who is owner of land situated in Deh Seri, Taluka Mirpurkhas. On said land, Haji Muhammad son of Arab,
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Yakoob alias Bako son of Nimro, Dilsher son of Mir Muhammad, Bashir son of Nimro, Muhammad Hussain son of Arab, Altaf son of Muhammad Hussain, Nimro son of Obhayo, Ghulam Mustafa alias Ghulamoon son of Arab, Allah Bachayo son of Alladitto and Mir Muhammad son of Nimro, all by caste Khaskheli, are settled, and they are dispute with Seth Gobind Ram over 60 acres and such litigation is pending in the civil court. They quarrelled with Manager of Seth Gobindram namely Faqeer Meghwar and he lodged such report against Ghulam Mustafa and others. On 10-2-2002, the complainant along with Seth Gobindram and driver Shaggan, went to the land of Seth at Deh Seri, by the vehicle of Seth, where Dhoorio son of Manji Bheel, Maghan son of Mohan and Sharafat alias Iqbal were present. Complainant party parked their vehicle at the Otak and they along with Dhoorio and others, went to visit the land. At about 1420 hours, they reached at Mander-wari-Patri near the wheat crop cultivated by Kirshan Kolhi in Deh Seri, where accused Haji Muhammad, Shabbir and Muhammad Hassan armed with pistols, Yaqoob alias Baka, Dilsher, Altaf and Nimro with hatchets, were available there, and at the distance of 1/2 acre accused Ghulam Mustafa alias Ghulamon, Allah Bachayo and Mir Muhammad with hatchets were present. Accused Haji Muhammad and others challenged Gobindram that why he did not stop coming on disputed land and also got registered cases against them through his employees, hence they will not spare and murder him. Ghulam Mustafa and other were standing on backside of accused Haji Muhammad and others, had instigated Haji Muhammad and others that for what they were still waiting. On the instigation of Ghulam Mustafa within their sight, Haji Muhammad and others fired directly with pistols and inflicted hatchet blows to Seth Gobindram with intention to kill him. Fires made from pistols of Haji Muhammad, Shabbir and Muhammad Hassan hit on right side of the chest, left arm and left side of waist of Seth Gobindram respectively. Yakoob alias Baka, Dilsher, Altaf and Nimro caused hatchets blows to Gobind Ram on right side of his ear, backside of head, right side of cheek and neck (Narar) respectively. After sustaining firearm and hatchet injuries, Seth Gobindram fell down and went unconscious and all the accused persons warned them not to come near else they would be killed. Due to fear, complainant did not go near them, and then within their sight accused Shabbir took the licensed revolver of Gobindram tied with his waist, and they went away towards their houses. They saw that blood was oozing from the injuries sustained by Seth Gobindram and he was unconscious. They shifted Gobindram to Civil Hospital in vehicle, but on the way near Jarwari Shakh at about 1445 hours, he succumbed to his injuries. After leaving the dead body at Civil Hospital under the supervision of Dhoodio, Maghan, Shaggan and Sharafat alias Iqbal, the complainant lodged F.I.R. At Police Station that the above named accused persons after consultation, duly armed with weapons because of old enmity, at the instigation of Ghulam Mustafa and others, made straight fires and caused hatchets blows to Seth Gobindram. 5. During the course of investigations, police arrested above named accused persons, recovered crime weapons and submitted challan against them before the concerned court, while accused Mir Muhammad and Ghulam Mustafa were shown as absconders. 6. Requisite case papers were supplied to the accused persons vide Exh:1, and charge was framed against them as Exh.2, to which they pleaded not guilty and claimed for trial vide their pleas as Exh. 2/A to 2/H respectively. 7. In order to establish the charge against, accused persons, prosecution examined the complainant Neelaram at Exh.4, who produced F.I.R. As Exh.4/A, P.W-2 Shaggan son of Dharmoon as Exh.5, P.W-3 Maghan as Exh.6, Mashir Shaggan son of Wagho as Exh.7 who produced memo of wardat as Exh.7/A and three empties article as Exh.7/B, P.W-4 Chotho as mashir as Exh.8 who produced memo of arrest Exh.8/A and 8/B, P.W-5 Majnoon as mashir as Exh.9 who produced the memo of recovery of two pistols on the pointation of accused Ghulam Shabbir as Exh.9/A, one pistol and 4 live bullets as article 9/B and another pistol as article 9/C, memo of recovery of pistol and five live bullets on the pointation of accused Haji Muhammad as Exh.9/D and pistol and five
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bullets as Exh.9/E, memo of recovery of pistol and five live bullets on the pointation of accused Muhammad Hassan as Exh.9/F and pistol and five bullets as article Exh.9/O, memo of recovery of hatchet on the pointation of accused Liaquat as Exh.9/H and hatchet as article Exh.9/I, memo of recovery of hatchet on the pointation of accused Dilsher as Exh.9/J and hatchet as article Exh.9/K, memo of recovery of hatchet on the pointation of accused Nimro as Exh.9/L and hatchet as article Exh.9/M, memo of recovery of hatchet on the pointation of accused Ghulam Mustafa as Exh.9/N and hatchet as article Exh.9/O, memo of recovery of hatchet on the pointation of accused Allah Bachayo as Exh.9/P and hatchet as article Exh. 9/Q. P.W-6 Dr. Syed Muhammad Nadir was examined as Exh.11 who produced police letter as Exh.11/A, dead body visit form as Exh.11/B, post- mortem report of deceased Gobind Ram as Exh.11/C and police letter in respect of weapon used for injuries as Exh.11/D, reply to that letter as Exh.11/E and police letter in respect of clothes of deceased as Exh.11/F, receipt of handing over the bullet to police as Exh.11/G. P.W A.S.-I. Imam Ali as Exh.12/B who produced Danistnama as Exh.12/B, letter issued to M.O. For post-mortem as Exh.12/C, re receipt of handing over the dead body to legal heirs as Exh.12/D, reports of chemical examiner and ballistic expert as Exh.12/E and 12/F. P.W Muhammad Hayat Tapedar as Exh.15 who produced sketch as Exh.16. Learned ADPP for the State closed the side of prosecution vide statement Exh.17. 8.. Statement of accused Haji Muhammad under section 342 Cr.P.C. Was recorded as Exh.18, who produced certified true copy of the judgment delivered in Cr. Case No.96/2003 by the learned Judicial Magistrate-III, Mirpurkhas, as Exh.19. Statements of accused Liaquat, Dilsher, Nimro, Ghulam Mustafa and Allah Bachayo were recorded under section 342 Cr.P.C. As Exh.20, 21, 26, 27 and 28 respectively. Statement of accused Muhammad Hassan as Exh.22, who produced the certified true copy of judgment in Cr. Case No.97/2003 as Exh.23 passed by learned Judicial Magistrate-III, Mirpurkhas. Statement of accused Ghulam Shabbir was recorded under section 342, Cr.P.C. As Exh.24, who produced the certified true copy of the judgment as Exh.25 passed in Cr. Case No.95/2003 by the learned Judicial Magistrate-III, Mirpurkhas. Statements of accused Haji Muhammad, Muhammad Hassan and Ghulam Shabbier under section 342, Cr.P.C. Were recorded as Exh.30, 31 and 32 respectively. 9. After hearing the arguments of the learned counsel for the parties and considering evidence adduced by them, learned trial Court convicted and sentenced the appellants vide impugned. Judgment. 10. Mr. Tahseen Ahmed Qureshi, learned counsel for the appellants has contended that the trial Court has miserably failed to ascertain the vicarious liability of each accused and that the fatal shot was not attributed to all appellants. The material contradiction between the contents of F.I.R. And the evidence of the complainant in respect of the investigation, roles of accused persons and causing of injuries to the deceased, have also been ignored. Prosecution witnesses are harries, driver and partner of the deceased as such they are interested witnesses. During the trial prosecution has given up six independent witnesses namely Rana. Saleem, Mairaj Khalid, Muhammad Arif, Phullo, Dhoorio and Sharafat which created serious doubt regarding the truth of the prosecution case. The memo of place of incident was prepared on 11-2-2002 at 7-00 a.m., but the complainant and mushirs were not present there, and complainant has admitted that police did not recover anything from the place of incident. The learned trial Court has discussed only the evidence of eyewitnesses but failed to consider the corroborative pieces of evidence. He further contended that appellants have been falsely implicated by the complainant in case with ulterior motives, as complainant has admitted in F.I.R. That there was old enmity between the parties over the ownership of the agriculture land. 11. He further contended that complainant party was aggressor and the deceased along with many persons forcibly entered into the disputed land and started cutting trees, and Seth Gulabrai committed murder of one of Altaf Khashkheli, whereupon entire villagers gathered there and they
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attacked the complainant party and Gobindram sustained injuries. Ghulam Hussain lodged F.I.R. No.13/2002 against Gulabrai, the brother. Of the deceased and witnesses regarding murder of Altaf, and a direct complaint was also filed against them for murder of Altaf before the same trial court. Complainant with mala fide intention has implicated ten accused persons with false specific roles and such accuracy itself is unbelievable and appellants may be acquitted by extending benefit of doubt. He has relied upon 1969 SCMR 714, 2009 PCr.LJ 1266, 2005 PCr.LJ 172 and 2003 MLD 1774. ' Mr. Muhammad Hashim Memon, learned counsel for complainant has contended that prosecution has proved its case against appellants by examining eye witnesses as well as mashirs of arrest and recovery, and their evidence was fully corroborated by the medical evidence. Defence has failed to shatter the evidence of prosecution witnesses, therefore, sentence already awarded to the appellants may be enhanced to the extent of death sentences. No enmity of witnesses has been shown against the appellants for their falsely implication in case, and defence has failed to shatter the credibility of the eye witnesses, as such presence of eye witnesses at the time of incident was natural and minor discrepancies cannot be taken into consideration. He contended that though in postmortem report kind of weapon used in commission of offence, was not mentioned and even the evidence of the medical officer that dead body was received on 11-2- 2002 at Civil hospital and on same day post-mortem was conducted, was a bona fide mistake and same may be rectified in view of the evidence of P.Ws. And documents produced by the prosecution that incident was occurred on 10-2-2002. He further contended that during cross examination of P.Ws., the suggestion put by the defence counsel that firstly Altaf Khashkheli was maltreated and then murdered by Gulabrai, and upon which villagers gathered there and the mob had attacked upon deceased Gobindram, but said plea was not mentioned in statements of accused. During investigation empties, pistols and blood stained hatchets were recovered from respective appellants, and reports of chemical examiners and ballistic expert were in positive, and the robbed licensed revolver of the deceased was also recovered from accused Shabbir. He has relied upon 1984 PCr.11 100, 1997 SCMR 373, 2009 SCMR 825, 2009 SCMR 1133, 2002 SCMR 334, 2003 SCMR 1164, 2001 SCMR 199 and PLD 2001 SC 458. 13. Mr. Muhammad Iqbal Kalhoro, learned A.P.-G. For the State has supported the arguments advanced by learned counsel for the complainant, and has contended that prosecution has established its case against the accused by producing all the material witnesses supported with documentary evidence as such criminal appeal filed by the appellants may be dismissed and criminal revision filed by the complainant may be allowed. 14. We have heard learned counsel for the appellants, learned counsel for the complainant as well as learned A.P.-G. For State and have scanned the material and cited case law with their assistance. 15. Ocular testimony comprises of evidence of complainant Neelaram, two eye witnesses namely Shaggan and Magan. For the appropriate conclusion of instant appeal, we would like to scrutinize evidence of all the three prosecution witnesses. 16. The relevant portions of evidence of P.W.1, complainant Neela Ram (Exh.4) is reproduced as:-- "On 10-2-2002, 1 along with the deceased Gobandram, Shaggan, Dhoorio, Bhalo alias Iqbal and Magan went to the land of the deceased near Mandar wall Patri. There is agricultural land of about 1300/1400 acres which is in Mirwah and Seri Farm belonging to the deceased and his brother. It was about 2 P.M. When 1 saw accused namely Haji Muhammad, Dilsher, Shabbir, Mir Muhammad, Hassan, Yako, Altaf, Nimro, Ghulamoon and another person whose name 1 do not remember, they were armed with different weapons as accused Ghulamoon, Miro and Allah Bachayo possessed hatchets, Haji Muhammad, Shabbir and Hassan were equipped with pistols,
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accused Nimro, Altaf Yako and Dilsher were armed with hatchets. All accused threatened Gobandram not to leave alive him. Accused Miro, Allah Bachayo and Ghulamoon instigated other accused persons for some adverse action by saying that they are still seeing. On these words, accused Haji Muhammad made fire by his pistol which hit on the right arm of the deceased Govand, whereas accused Shabbir fired with his pistol on left arm of the deceased, accused Hassan also fired which was hit on the left side of the waist of the deceased, accused Nimro hit the hatchet on the forehead of the deceased, accused Altaf hit the hatchet at the right cheek of the deceased, accused Yako hit the hatchet at the right side of the neck of the deceased. Accused Dilsher also hit his hatchet on the back of the neck of the deceased, thereafter deceased Gobandram fell down. All the accused went away from the spot by making firing in the air, and firing was also going on from their village side. At the time of inspection of wardat, there were so many other persons but I do not remember their exact number. I do not remember whether it was day time or after sunset time. I do not remember that whether the police collected anything from the place of incident or not. The place of incident is situated 10/12 acres away from otaq of the deceased. At that time 1 was accompanied with deceased Gobandram, whereas other P. Ws. Were on our back. Accused opened the fire on the deceased from distance of 10 to 15 paces and after immediate effect other accused persons gave hatchets blows to the deceased. It is correct to suggest that no other person received any injury. At that time we were standing about 15/20 paces away from the deceased. It is correct to suggest that I did not intervene in the matter as I was also threatened to be killed by the accused persons. When the culprits challenged us before the incident, they were at a distance of about half acre away from the deceased. It is correct to suggest that when the accused challenged us from the distance of half acre duly armed with weapons, we did not try to run away. I do not know whether one Altaf was murdered in this incident. F.I.R. Of which was registered under No.13/2002 at P.S. Mirpurkhas Taluka. It is correct to suggest that I am also one of the accused in Crime No.13/2002 which was lodged by complainant Ghulam Hussain. It is also correct to suggest that in Crime No.13/2002 Nazar Muhammad, Jamil alias Jeelo, Hotchand alias Hotoo, Gulab Rai alias Gul are also accused. It is correct to suggest that there is also direct complaint which pertains to the murder of Altaf pending in this court. Voluntarily says that police has also recorded correctly F.I.R. No.13/2002 in respect of the murder of Altaf. It is correct that Sessions case of Crime No.13/2002 is also pending in this court. It is incorrect to suggest that on 10-2-2002 at about 2.00 P.M. Seth Gobandram the deceased, Seth Gulab Rai alias Gul, Hotchand, myself Jamil alias Jeelo, Nazar Leghari and other 60/70 persons came on lands of Allandino Manganhar, and started cutting trees forcibly in order to take possession, and also called Altaf and after abusing, directed him to leave but Hotchand asked not to leave him, upon which Gulab Rai fired on said Altaf with 12 bore gun which hit him and he fell down, upon which all the persons present in surrounding area gathered there and seeing them, all the persons namely myself Seth Gulab Rai, Seth Gobandram, Seth Hotchand, Jameel alias Jeelo and Nazar Leghari started running towards car, but Seth Gobandram fell down while running towards the car, then scuffle started and Gobandram sustained injuries whereby he succumbed the same. I do not know all the accused persons by name except two/three. It is incorrect to suggest that I have assigned the roles to the accused with the consultation of the deceased's family as per post mortem report." 17. The relevant portion of cross examination of P.W.2, Shagan (EXH.5) is reproduced as:-- "I am working with seth for the last about 14/15 years. It is correct to suggest that incident was taken place on the land on which there was already a dispute in between the parties. The place of incident is at a distance of about 02/03 acres away from the otaq of Mir Muhammad. It is a fact that the dispute was arisen over the land of Allandino Manghanhar. It is correct to suggest that none of the P. Ws received injuries except said Seth Gobindram. It is incorrect to suggest that in
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said incident Altaf Khaskheli was also murdered. It is incorrect to suggest that said Altaf was called from the otak of Mir Muhammad by Gulab Rai, Hotchand, Neelaram, Nazar Muhammad and Jameel by holding his collar. It is incorrect to suggest that after beating him, he was directed to runaway but Hotchand said that why you are leaving him alive, upon which Gulab Rai alias Gul opened straight fire at Altaf Khaskheli on the instigation of Hotchand. It is incorrect to suggest that when said Altaf Khaskehli fell down after the pellet injury, the persons who were present there in chhar and other villagers had attacked on seth Govindram in result of which he sustained injuries." 18. The relevant portion of cross examination of P.W.3, Maghan (EXH.6) is reproduced as:-- "I was the hari of the deceased since last 20/25 years. It is correct to suggest that the Khaskheli were haries of the Allandino Manghanhar on the land under dispute and accused persons were also haries on the said disputed land. Before the incident there was a distance of 1/4 acre in between us and accused Khaskhelis and half acre from the other accused persons, from where they came 10/15 paces forward and fired. At the time of incident, Seth Gobind was first in the row, then Seth Neelaram, then Bahloo and besides him, I and P. W. Shagan were in his side and Dhoorio was also with us in our side where Seth Gobindram was at a distance of 10 paces from us. It is correct to suggest that all the gun fire shots hit the deceased Seth Gobindram when he was in standing position. It is also correct to suggest that we all the P. Ws did not receive any shot injury or pellet injury except Seth Gobindram. It is incorrect to suggest that on the day of incident Seth Gobindram had taken many persons including Neelaram, Hotchand, Seth Gul, Jameel and Nazeer to the disputed land and started to cut trees and were taking away the same to his otaq. It is incorrect to suggest that the deceased Seth Govindram accompanying with Seth Neelaram, Hotchand, Gul, Nazeer and Jameel had come near the otaq of Mir Muhammad Khaskheli and called Altaf who was standing near his uncle Mumtaz. It is incorrect to suggest that after calling, said Altaf was beaten by Nazar Ahmed and Jameel and was also dragged by holding his collar. It is also incorrect to suggest that after beating him, he was directed to go away from there, but Hotchand stated that you are leaving him alive, upon which Rai alias Gul opened straight fire on Altaf Khaskheli with gun. It is incorrect to suggest that when said Altaf fell down due to pellet injury, the persons present there and other villagers attacked on seth Gobindram and caused him injuries while he was running towards his Otaq." 19. Relevant portions of statement of P.W.7 Medical Officer Dr. Syed Muhammad Nadir (Exh.11) are reproduced as under:-- "On 11-2-2002 I was posted as Casualty Medical Officer at Civil Hospital, Mirpurkhas. On the same day I was in evening shift and at about 4.00 p.m., Mr. Leelaram brought the dead body of Gobind Ram son of Asandas. The dead body was identified by Lachmandas and Mangharam who were relatives of the deceased. The post-mortem was started on 11-2-2002 at about 5.20 p.m. And finished at 7.30 p.m. On the same day. 1 examined the dead body and found the following injuries:- (1) Incised wound size 12 cms x 8 cms extended from right sided of cheek upto back of right ear. Approximately 5 cms deep and the brain matter out. (2) Incised wound 5 cms x 3 cms on right cheek. (3) Lacerated wound cms x 1 cm on Left side of fore-head, bone exposed. (4) Incised wound 5 cms x 2 cms on right parietooccipital area. Bone exposed. (5) Incised wound 16 cms x 6 cms at occipital area brain matter out. (6) (A) Wound of entry 0.5 x 0.5 cm on right side of chest matter out. (6) (B) Wound of exit 2cms x 1.5cm on left exila with averted margin. (7) (A) Wound of entry 0.5 x 0.5 cm anterior side of left Lumbar region with inverted margin. (7) (B) Wound of exit 2 cms x 1.5 cm posterior sider of lumbar region with averted margin. (8) Wound of entry 1 cm x 0.5 cm at anterior of left elbow
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(9) Lacerated wound 1 cm x 1 cm at anterior of right shin. ' The injuries Nos.1, 2, 4 and 5 were caused due to sharp cutting, weapon, while injuries Nos.3 and 9 were caused by hard and blunt substances, and injuries Nos.6, 7 and 8 were caused by firearm weapon. Lungs got through and through injury. The skull got communicated fracture on occipital area and brain matter out. Fracture of mandible and maxille upto occipital bone and brain matter was out. From the external as well as internal examination of deceased Gobind Ram, I am of the opinion that the cause of death is due to the injury on vital organ i.e. Brain leading to haemorrhage and death. The duration between death and injuries was immediate. I prepared such post-mortem on the same day. I produce such postmortem as Exh.11/C which is same, correct and bears my signature. During postmortem, I recovered a bullet from the body of deceased which was handed over to the police. I produce such letter of police with regard to bullet as Exh.11/G. It is correct that the description of injury No.3 is mentioned as 'left side of forehead'. It is correct that there was only one injury on the forehead of dead body. The injury No.1 incised wound 12x8 cms means that 12 cms in length and 8 cms in width. It is incorrect to suggest that the injury is…
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