Full Judgment Text & Judicial Ruling

1988 P Cr

1988 P Cr. L J 1708

[Karachi]

Before Ajmal Mian and Allahdino G. Memon, JJ

Syed NOOR MUHAMMAD SHAH--Appellant

versus

THE STATE--Respondent

Criminal Appeal No. 76 and Confirmation Case No. 5 of 1987, decided on 29th May, 1988.

Penal Code (XLV of 1860)---

---S. 302--Prosecution case based on motive, abscondence, retracted Judicial confession and ocular evidence--Motive advanced by prosecution neither convincing nor so strong as to prompt accused to kill deceased--Accused allegedly absconded after murder but no evidence had been laid by prosecution on this point--Explanation given by accused appearing probable--Confession showing that there were cuttings in confessions and same were not signed or initialled by accused although Magistrate recording it put his signatures at places of cuttings--Magistrate was examined after more than two years and he did not remember what warnings he had given to accused- Confession allegedly made by accused was not reliable--Gun recovered was licensed in name of another person and no allegation was made that gun in question used to remain in possession of accused--Empties were not secured from Wardat but secured from barrels of gun- Recovery as such could not be used as piece of evidence against accused--Ocular testimony relied upon by prosecution based on evidence of two prosecution witnesses, one who was in same Otaq where deceased was killed and other who had come on hearing cries and gunshots--One of eye-witnesses was reported to be servant of complainant party and could not be said to be an independent witness while other had enmity with accused over land and supported prosecution to eliminate accused so that he could usurp land of father of accused--Eye-witnesses also made improvements over their statements under S.164, Cr.P.C. and their evidence appeared to be unnatural- Evidence of these witnesses with regard to identification of accused also not reliable--Evidence of complainant was based on information given to him by aforesaid eye-witnesses and not strengthening prosecution case in any way--Held, guilt of accused was not established beyond reasonable doubt--Accused given benefit of doubt and acquitted in circumstances.

Hadi Bux v. The State P L D 1963 Kar. 805; Thanghai v . The State 1969 P Cr. L J 439; Abdul Haleem v. The State 1984 PCr.LJ 611; Ramzan v. The State P L D 1966 Kar. 242; Ameenullah v: The State P L D 1982 SC 429; Mir Khan v. The State 1976 P Cr. L J 779; Ali and 3 others v. The State 1969 P Cr. L J 28 and The State v. Manzoor Ahmed P L D 1966 SC 664 rel.

A.Q. Halepota for Appellant.

Abdul Wali Makhdoom for the State.

Aftab Ahmad Alvi for the Complainant.

Dates of hearing: 14th and 18th January, 1988.

JUDGMENT

ALLAHDINO G. MEMON, J.--The appellant was tried under section 302, P.P.C. for the murder of Khan Mohammad son of Moosa, and tried before the learned Additional Sessions Judge, Thatta, who has convicted and sentenced him to death, and to pay a fine of Rs.2,000 or in default to suffer R.I. for two years, and also to pay compensation of Rs.10,000 to the heirs of the deceased and in default to suffer R.I. for five years under section 302, P.P.C, vide judgment dated 11-5-1987.

The brief facts of the prosecution case are that on 6-1-1985 one Khuda Bux son of Moosa lodged a report at P.S. Thatta which reads as under:-

"That we are four brothers. Our younger brother namely Khan Mohammad alias Khan who is aged 25/26 years has been working as driver with Babu Shah since last 10 years. My brother Khan Mohammad lived with Babu Shah and used to visit our village and meet us occasionally. About a week ago my brother Khan informed me that Nooro Shah son of brother of Babu Shah presses that I should leave the job of Babu Shah as my uncle Babu Shah and the residents of village have confidence in you and nobody cares for us. At night I was at my village when I heard two gun shot reports from the Otaq of Babu Shah. After that Haji Moula Bux Shoro came to my house and disclosed the fact that Nooro Shah son of Siddiq Shah has murdered our younger brother Khan Mohammad by gun fire. Then I, my brother Mohammad Hassan, and Jurio son of Mohammad Hashim went to the Otaq of Babu Shah alongwith Moula Bux Shoro, and we saw that my brother Khan Mohammad alias Khan had pellet injuries on his hand, face, and head, which had bleeded and he was dead. One Mohammad son of Wali Mohammad by caste Machhero was sitting there, who told us that he and Khan Mohammad were sleeping on two separate beds in the Otaq. At about 9-30 night he woke up suddenly on hearing gun shot reports, and saw that Nooro Shah son of Siddiq Shah was there, who had gun in his hand, which he left there and ran away. Soon thereafter Babu Shah and other residents of the village came there and we narrated the facts to them. I have come, for report leaving the P.Ws. at the dead body. Accused Nooro Shah son of Siddiq Shah has murdered my younger brother Khan Mohammad by firing gun shots'.

The above F.I.R. was recorded by A.M.' Aijaz Ahmad. The F.I.R. has been produced as Exh.7/A. After recording the F.I.R. A.S.I. Aijaz Ahmed went to the place of Wardat and prepared Mashirnama of Wardat in presence of Mashirs Haji Usman and Yaroo. He found dead body lying in roofless Otaq. A double barrel gun was lying outside the walls of the Otaq. There were two empties in the barrel of the gun. He secured the gun, two empties from the barrels of the gun, bed-sheet, pillow cover, and cover of quilt, as all these articles were blood-stained. The same were sealed in the presence of the Mashirs., The Mashirnama has been produced as Exh.12/A. He then prepared inquest report and the same has been produced as Exh.12/B. He secured the clothes of the deceased, produced by P.C. Ghulam Mohammad under Mashirnama, and the same has been produced as Exh.12/C. He then examined P.Ws. Hassan, Jurio, Mohammad Machhero and Babu Shah. He then handed over the papers to A.S.I. Iqbal who had reached the Wardat. Intimation was also given to S.H.O. Peromal. On 15-1-1985 he received information from P.S. Peromal about the arrest of the accused. He then went there and took accused in his custody, and secured Mashirnama prepared by H . C . P. S. Tando Mitha Khan. He brought the accused to Thatta, and handed over Mashirnama and accused to S.H.0 He has produced the Mashirnama as Exh.17/A. On 15-1-1985 S.H.0, Karamat Hussain interrogated accused Noor Muhammad Shah. On 1a-1-1985 he produced the accused before Mukhtiarkar and F.C.M. Sujawal for recording his confession. On 23-1-1985 he got the statements of P.Ws. Babu Shah and Mohammad recorded under section 164, Cr.P.C. in presence of the accused. He then challaned the accused in the Court under sections 302, P.P.C. and 13-D Arms Ordinance.

A formal charge was framed against the accused to which he pleaded not, guilty,

At the trial prosecution examined complainant Khuda Bux P.W.1, he has produced the F.I.R. as Exh.7.A, eye-witness Mohammad Machhero P.W.2, he has produced his 164, Cr.P.C. statement recorded before Mukhtiarkar and F.C.M. Sujawal as Exh.8/A, Babu Shah P.W.3, he has produced his 164 C: P.C. statement as Exh.9/A, Haji Moula Bux P.W.4, Mashir Haji Usman P.W.5, produced the Mashirnama of Wardat as Exh.12/A, inquest report as Exh.12/B, and Mashirnama of securing clothes of the deceased produced by P.C. as Exh.12/C. Dr. Mohammad Iqbal the then Medical Officer, Civil Hospital, Thatta. P.W.6, he had carried 'on post-mortem on dead body of the deceased Khan Mohammad, and has produced the post-mortem report as Exh.13/A. Mr. Ramesh Kumar Mukhtiarkar and F.C.M. P.W. 7, who has recorded the confession of the accused. He has produced the confession of the accused as Exh.15/A. Mashir Yar Mohammad P.W.8 who had acted as co-Mashir of Wardat, inquest report, and production of clothes of deceased. A.S.I. Ajaz Ahmed P.W.9, who had carried on the investigation partly, and S.H.O. Karamat Hussain who had carried the remaining investigation. He has produced the ballistic expert's report. and chemical report as Exhs.18/A and 18/B. Tapedar Mohammad Moosa P. W.11 he had prepared sketch of Wardat, and the same has been produced as Exh.19/A. Complainant Khuda Bux has supported the contents of his F.I.R, and has further deposed in cross-examination that P.W. Haji Moula Bux had gone to inform him alone. Moula Bux resides in his own village which was about.3/4 miles away from his village. Village Babu Shah was situated about 1 mile away from village Haji Mohammad Shoro. He went directly to the place of the incident, There was no boundary wall of the Otaq of Babu Shah nor there was proof, doors and windows. He could not give the time of reaching at the Wardat. Haji Moula Bux had pointed out the place of Wardat. When he reached at the Wardat the gun was lying on the ground. He did not find anything else lying near the gun. The gun was lying outside the Otaq, and the dead body was lying inside the Otaq. There were two cots lying in the Otaq. The village of Babu Shah was not electrified. It was the 13th of lunar month, and. there was full moor, light at the time of incident. The dead body was first taken to the police station and from there it was taken to the hospital. Police Station was situated about 9 miles away from the place of Wardat. He had left the place of incident for lodging report at about 11-00 or 11-30 p.m. He thought that he had reached the Police Station at about 1-00 a.m. He was informed by Babu Shah that the accused Noor Mohammad Shah was son-in-law of Babu Shah. He also knew that his brother Khan Mohammad used to live with Babu Shah. He knew father of the accused namely Siddiq Shah. Siddiq Shah is brother of Babu Shah and owns lands jointly with Babu Shah. He never heard of any dispute of land between Babu Shah and accused Noor Mohammad Shah. He did not know that Babu Shah was also in possession of the land of Siddiq Shah. The village of Haji M.oula Bux Shoro was two furlongs away from the village of Babu Shah. Police had reached the Wardat at 2-00 or 2-30 a.m. He denied that he was giving false statement because his brother was killed.

P.W. Mohammad has deposed that he was servant of Babu Shah. The incident of murder of Khan Mohammad occured about 24 months ago. Khan Mohammad was also employed by Babu Shah as his driver on the jeep. He and Khan Mohammad used to sleep in the Otaq, and there were only four walls. Nooro Shah was nephew of Babu Shah. There was conflict between accused Noor Shah and Babu Shah and apple of discord was Khan Mohammad (Note: The latter part of the sentence which has been underlined does not make any sense. In Sindhi it is written as under:-

"meaning thereby that there is a dispute between Nooro Shah and Babu Shah). It was about 9-30 p.m. when he and Khan Mohammad were sleeping in the Otaq. At that time he heard gun report and removed his quilt from his face, and saw Noor Mohammad Shah going out and standing at the entrance of the Otaq. He identified him in the light of the moon. He saw him abandoning his gun beside the enterance and he ran away. He raised cries which attracted Babu Shah followed by others. He saw Khan Mohammad, and he (witness) told him that Noor Mohammad Shah had run away after causing injuries to Khan Muhammad. He had seen the deceased. He had sustained injuries on both eyes from which there was bleeding, and he had also injury on the back side of palm. Blood was flowing even up to the ground after affecting the bedding. Babu Shah sent Haji Moula Bux who brought Khuda Bux, Hassan, and Jurio brothers of the deceased. It was double barrel gun. He gave facts to Babu Shah and then to Khuda Bux. Police came and recorded his statement. In cross-examination he has deposed that he has been working with Babu Shah since 6/7 years. The name of his village is Haji Maloo Machhero at Sujawal. There were only two cots in the Otaq. His cot was heading towards East, and the cot of Khan Mohammad was heading towards North. The two cots were making 'T' in shape. the walls of the Otaq were of man's height. One could not see happenings taking place outside the Otaq, while sitting in the Otaq. He had heard two gun reports. He had woke up on hearing gun reports i.e. explosion. He got sitting on the cot for 5/6 minutes raising cries till arrival of Babu Shah. The Otaq was situated 40/50 paces away from the village of Babu Shah. He had narrated the facts to Babu Shah only, and Babu Shah told the same facts to Khuda Bux. 50/60 persons had collected at Wardat when he was telling the facts to Babu Shah. All those persons were villagers from the village of Babu Shah. The village of Babu Shah was not electified. He had stood at the enterance of the Otaq and did not go out. Noor Mohammad is son-in-law of Babu Shah. Noor Mohammad had joint meals with Babu Shah but used to live in separate house in the same village. His statement was recorded in the morning at the spot. He denied that he was deposing falsely at the instance of Babu Shah because he was his servant. Siddiq Shah father of Noor Mohammad Shah was still alive, and it was not correct that Babu Shah has usurped the land of Siddiq Shah after his alleged death. Siddiq Shah had met with some accident 10/12 years ago, when he was not in the employment of Babu Shah but he had heard about it.

Babu Shah P.W.3 has deposed that he owns land measuring about 200 acres which is in the name of his father but he is general attorney. He also owns a jeep for his personal use of which Khan Mohammad was driver for many years. He has an Otaq where his servants Mohammad and driver Khan Mohammad used to sleep during night. The Otaq was situated 40/50 paces outside his village, and it had no roof, doors and windows, as it was under construction. Khan Mohammad Shoro was incharge of his work. Accused Noor Mohammao Shoro is his son-in-law who was working as Daroga in 'Irrigation Department, and used to take meals with him. His Haris and Noor Mohammad himself had once complained that Khan Mohammad did not give lift to accused in the jeep, and he (witness) had replied that Khan Mohammed was a faithful servant which annoyed the accused. About 25/26 months ago he was sleeping in his house, while Khan Mohammad and Mohammad Machhero were sleeping in the Otaq. At about 9-30 p.m. he heard two gun shots from the side of the Otaq, and thereafter the cries of Mohammad Machhero, on which he rushed towards Otaq where Mohammad Machhero told him that Noor Mohammed Shah had killed Khan Mohammed. Mohammad Machhero further told him that accused had run away on seeing him approaching the Otaq. He had also seen him running away from his back. He had identified him in the light of full moon. He went inside the Otaq and saw Khan Mohammad. His flesh of eyes had come out due to injuries and he had also sustained injury on his right palm. Mohammad Machhero further told him that he and the deceased were sleeping in the Otaq on separate cots when he woke up on hearing gun reports and saw accused Noor Mohammad Shah. First he was taken aback due to fear but then he raised cries which attracted him (witness). He (Babu Shah) was followed by many co-villagers. The accused abandoned a double barrel gun which was lying there. He then went to Haji Moula Bux Shoro who is Nekmard of his community and resides in his para. He gave him facts and sent him to Khuda Bux brother of deceased. Khuda Bux, Mohammad Hossan, Jurio, Esso and Haji Moula Bux came to the Wardat. He narrated the above facts to Khuda Bux, who went to P.S. and brought police at the Wardat. The bed and the cot of the deceased were stained with blood. There was also some blood on the ground. The deceased had been killed by the accused out of grudge due to above reason as stated by him. The gun was a licensed gun of his (witness's) father which the accused had taken away from the house and the same was lying outside the Otaq. in cross- examination he has deposed that the accused is his son-in-law. He resides in the same village. Siddiq Shah father of Noor Mohammad accused is his brother. Siddiq Shah had met with an accident. Siddiqe Shah does not hold any land in his name but the land in the name of his father was privately partitioned, and his share is in his own possession. He denied a suggestion that the share of Siddiq Shah was also in his possession. The Otaq was under construction at the time of incident, previously there was but at that site where 'Khan Mohammad and Machhero were living. He denied that deceased used to live in his house because of construction of Otaq. Mohammad Machhero is his servant for the last 7/8 years. The deceased had complained to him some days before this incident when the accused had asked him to quit his service, but he stopped him, and asked him to stay because he was looking after his affairs, as he was injured in an accident and needed his help. He did not tell him the reason for which the accused had asked him to leave his service. First he reached the Otaq and just immediately thereafter people from village also reached there within no time. He reached Otaq both on gun report as well as on cries of Mohammad Machhero, because the cries were raised just after gun reports. Haji Moula Bux resides in a village named after him Village of Haji Moula Bux would be 2/3 furlongs away from his village. He went alone to the house of Haji Moula Bux. Haji Moula Bux came out alone from the house when he called him. He denied that Khuda Bux had lodged report at his instance. He reached the house of Moula Bux before 10-00 p. m. From the house of Haji Moula Bux he returned to Wardat while Moula Bux went to inform the complainant. He could recognize his father's gun and he had recognized it at the Wardat. The gun in Court was the same. He never used this gun himself. His father never told him that his gun was stolen. He was at Sujawal at that time. He denied that he had a dispute on land with Siddiq Shah father of the accused, and therefore. he was giving false statement.

Haji Moula Bux P.W.4 has deposed that about 25 months back. he was sitting at his house when at about 9-00 p.m. he heard two gun reports. At about 9-30 or 10-00 p.m. Babu Shah came to him and told him that his nephew Noor Mohammad had committed murder of his driver Khan Mohammad Shoro by firing gun at him, and he asked him to go and inform the brother of Khan Mohammad Shoro. Babu Shah then returned to his house; while he went to the brother of the deceased. He went and informed the complainant, and brought Khuda Bux, Mohammad Hassan, and Jurio to the Wardat. Mohammad Machhero, Babu Shah and other co-villagers were also present there. Mohammad Machhero informed them that the accused is nephew as well as son-in-law of Babu Shah who had brought him up from childhood but he was annoyed with Khan Shoro because Babu Shah had entrusted all the work to Khan Shoro, and Shoro was not recognizing the position of the accused, hence he had killed him. He further informed them that he had seen Noor Mohammad Shah in the light of full moon as it was 13th of the lunar month. He had woke up on hearing gun reports, and found the accused standing with gun. In cross-examination he has deposed that he did not belong to the village of the complainant, but he resides 3/4 miles away from him. He denied that whatever he had deposed was told to him by Babu Shah, but his statement was based upon his own knowledge and observation. He had reached the house of complainant Khuda Bux at about 10-00 or 10-30 p.m. He had told the details of incident to complainant which were known to him. Except Mohammad Machhero and Babu Shah, he did not make any enquiry about the incident from any other person. Village of Khuda Bux complainant was situated about one mile away from the Otaq of Babu Shah.

Mashir Haji Usman has deposed that police had made him Mashir of Wardat about 25 months back. Other Mashir was Yar Mohammad. It was situated in the Otaq of Babu Shah. The dead body of Khan Mohammad was lying on a cot. A gun was lying in the West of dead body. There were gun shot injuries on the person of deceased. Police secured gun No.11818. Police opened the gun and found two empty cartridges of Shaheen make, and there was smell of gun powder which showed that it was freshly and recently fired. Police made such Mashirnama and the same was produced as Exh.12/A. Police had prepared inquest report in his presence, and the same has been produced as Exh.12/B. The police also secured clothes of the deceased and prepared such Mashirnama in his presence which has been produced as Exh.12/C. In cross-examination he has deposed that he resides in village Haji Mohammad Ali Shoro and the complainant also resides in the same village. There is a note from the Court showing that the witness was hiding left hand and he reluctantly opened the same under the orders of the Court and it was found that the gun number was noted on his palm. He did not remember the number of the gun hence he had noted it at his hands so as to refer while giving evidence. He further stated that he had given gun number in the Court after looking at his hand where the gun number was noted by him. The police station was about 7/8 miles away from his village. He had gone to P.S. 2/3 times during the investigation of this case. Only Yar Mohammad had gone to P.S. with him. Yar Mohammad was also resident of his village.

Dr. Mohammad lqbal P.W.6 had conducted post-mortem on the dead body of Khan Mohammad. He started post-mortem examination at 10-00 a.m., and found the following external injuries on the person of the deceased:-

"(1) A lacerated wound of entry around the right eye with blackening around 2 c.m. and eye ball protruded internally 3 c.m. x 4 c. m.

(2) Lacerated wound on the left medial side of eye ball 2 c.m. x 1 c.m. and blackening around medial side.

(3) There is wound of exit on the parieto occipital region left with brain matter whop protruded fracture of parieto occipital bone and orbital cavity and both eye balls out.

(4) Lacerated wound on the right dorsum of hand 4 cm x 3 cm tendon deep."

On internal examination he found the brain matter and membrane out and fracture of occipital cavity and left parieto occipital bone. From external as well as internal examination of the deceased he was of the opinion that the death was caused due to shock and haemorrhage as a. result of discharge of fire-arm. Death was caused instantaneously, and time between death and post-mortem was 10-12 hours. The injuries were ante-mortem in nature and were caused by discharge from fire-arm within the range of 6 feet. He has produced the post-mortem notes as Exh.13/A. In cross-examination he has deposed that the shot must have been fired from front. He did not find blackening anywhere from the face of the deceased except around the eyes as already deposed. The external injuries described by him could be caused by one shot. He did not take X-ray. No pellets were found in the injuries. In reply to the question from the Court he has deposed that there was no wound of exit as the result of injury No.4. Injury No.4 could be caused by discharge from fire-arm as well as by some hard and blunt substance. The injury No.4 could not be caused by the shot which caused injuries Nos.1 and 2 if the deceased had been sleeping with his left hand on his eye when he was fired at. No brain matter was present at all when he examined the dead body. He had not described the measurement of wound of exit. The wound of exit extended to 2 bones i.e. parieto and occipital bones, and the whole was missing. He had also not taken measurement of the bones which were missing alongwith the brain matter.

Mr. Ramesh Kumar P.W.7 has deposed that on 16-1-1985 he was posted as Mukhtiarkar and F.C.M. Sujawal when on that day S.H.O. Thatta produced accused alongwith letter for recording his confession. He was produced at about 12-00 noon. He got his handcuffs removed and asked the concerned police to go outside premises of Court. He then disclosed his identity to the accused and warned him that whatever he states shall be recorded and the same can be used against him in the Court of law. He enquired from him whether he was maltreated by the police and he replied in negative. He also enquired from him if police had brought any coercion upon him by humiliating his relation in order to extort confession and the accused replied in negative. He then made it clear to him that he was not bound to confess and he will not be returned to police custody whether he makes the confession or not He also enquired from him whether police had induced him to make confession with promise to make him approver but he denied. He also examined the body of the accused but did not find any mark of violence on his person. After these warnings he gave two hours for reflection to the accused from 12-00 to 2-00 p. m. and during that period the accused was made to sit in the Chamber under the custody of…

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