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Petitioner: LEEMON and anothers VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Munawar Ali Khan Title: LEEMON and anothers vs THE STATE Case No.:Criminal Appeals Nos.47 and 69 and Confirmation Cases Nos. 9 and 3 of
JUDGMENT
Reported As: 1984 P Cr. L J 2690 Result: Death sentence not confirmed Judgment JUDGMENT ' Munawar Ali Khan, J.-- Appellant Misri is nephew of appellant Leemon. Both the appellants, who are Channah by caste, were tried for the murder of Qadir Bux Memon, a resident of Kaural Memon village, Taluka Gambat, district Khairpur. The Sessions Judge, Khairpur (Syed Nasir Hussain Jafri) who heard the case against the appellants, by his judgment dated 15th June, 1983, convicted them under section 302/34, P.P.C. And awarded them death sentence. It was laso directed by the learned Sessions Judge that .In case death sentence was not confirmed, the accused would pay fine of Rs, 10,000 each, or in default, suffer R.I. For three years. Half of the amount of fine, if realised, was further directed to be paid to the heirs of the deceased as compensation under section 5414-A, Cr.P.C. The appellants have preferred appeal from their conviction and sentence. The reference made by the learned Sessions Judge under section 374, Cr.P.C. For confirmation of the death sentence is also before us. We propose to dispose both the appeal and the reference by this common judgment. ' The facts giving rise to this case are that on the day of occurrence which took place on 3rd September, 1981, at about 6-00 a.m., the deceased Qadir Bux and his brother Misri set out from their village on a cycle to . Buy milk from Niaz Memon village. They were said to be doing the work of preparing 'Khoya' by concentrating milk. When they were on the top of Mehrab canal, near the land of Gahi Shaikh both the appellants emerged from the nearby sugarcane cultivation, waving their hatchets. They challenged the deceased, declaring him to be 'Karo' (i,e, on illicit terms with the woman belonging to the appellants' side). On hearing this, both complainant and Qadir Bux threw their cycle and took to their heels. However, the appellants overpowered the deceased and dealt him hatchet blows whereupon he fell down in the water course. On cries of Misri, Banho and
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Ghulam Nabi, both Memons by caste, were attracted. On seeing the witnesses, the accused ran away alongwith their weapons. ' The deceased was found to be profusely bleeding and ultimately died of the injuries he had sustained. Leaving other witnesses at the dead body, the complainant proceeded to the Police Station Sobhodero and lodged F.I.R. At the said Police Station. ' A.S.I. Sohrab Khan who was incharge of the Police Station, recorded the F.I.R. At 6-30 a.m. Then he accompanied by the complainant, came to the Vardat and inspected the same in presence of Mashirs. From the Vardat, the A.S.I secured blood-stained earth and one cycle with empty milk- cans. The dead body was referred to the Medical Officer Ranipur through P.C. Ali Gul for post- mortem examination. The A.S.1. Also examined Banho and Ghulam Nabi at the Vardat. From there he went to the village Bhoombhatpur where he recorded statement of Mst. Muradan, wife of Ali Dino Chano. Thereafter, he went to the house of the accused where he learnt they had already gone to the Police Station. Accordingly, the A.S.I. Came back to Police Station. Both the accused appeared before the A.S.I. Alongwith their respective weapons and blood-stained clothes. They were taken into custody by the A.S.I. Who also secured blood-stained hatchets and clothes from their possession in presence of Mashirs. The blood-stained articles were separately sealed and were ultimately sent to the Chemical Examiner for report. The chemical report which has been placed on record (Exh.16-A) is positive. On the next day of their arrest, the appellants were produced before Honorary Magistrate (First Class) at Sagyoon for their confession. After completing the usual investigation, the appellants were placed on trial with the result mentioned above. ' Dr. Rahim Bux Bhatti (P.W.5) of Ranipur conducted the autopsy on the dead body of Qadir Bux Memon and found the following surface injuries on his person: (1) One incised wound 15 c.m. x 3 c.m. x bone deep on the left eye brow and left temporal region. Fracture of temporal bone was present. (2) One incised wound 15 c.m. x 3 c.m. x on the left temporal, left occipital region, left ear was also cut. Brain matter was oozing out from the wound. (3) One incised wound 16 c.m. x 6 c.m. On the left side of the neck blood vessels on left side were cut. (4) One incised wound 6 c.m. x 2 c.m. Through muscle deep on left side of neck. (5) One incised wound 5 c.m. x 1 c.m. On the left of the neck. (6) One incised wound 6 c.m. x 3 c.m. On the left parietal region. (7) One incised wound 10 c.m. x 2 c.m. On the left forearm. On internal examination of the dead body, the doctor came across the following damage. (1) Fracture of left temporal and left occipital bone was present. (2) Intra-cranial haemorrhage was present on left side. (3) Brain matter was cut at temporal and occipital lobe area. (4) Stomach contained digested material. Small intestine also contained digested material and large intestine contained gas and faecal material. ' After due consideration of both the external and internal injuries, the doctor formed an opinion that the death of the deceased had occurred due to haemorrhage resulting from the said injuries which, in his opinion, were all ante-mortem and were caused by sharp-cutting weapon, such as hatchet. According to the doctor, surface injuries Nos. 1 to 3 were individually sufficient to cause death in ordinary course of nature. It is not disputed by the accused that the deceased Qadir Bux died of the injuries he had sustained. Thus, it is established from the medical evidence that the death of the deceased, Qadir Bux was the result of the injuries he had received. ' The crucial point however is to fix the responsibility, of causing of injuries to the deceased. In this connection, the evidence led by the prosecution may be divided into following categories: (1)
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Ocular evidence. (2) Confession. (3) Voluntary surrender of the accused before Police and recovery of incriminating articles, namely blood-stained clothes and blood-stained hatchet from their persons. (4) Motive. ' As for judicial confessions, it appears that the accused were produced before the Honorary First Class Magistrate, Sagyoon on the next day of their arrest when their confessions were recorded. The learned Sessions Judge has however chosen to exclude the confessions from consideration. The reasoning that has prevailed with the learned trial Judge for excluding the confessions from consideration may be summarised as under: ' According to the learned trial Judge the confessions were not recorded strictly in accordance with the law. As a first step the recording Magistrate -did not disclose his identity to the accused nor he gave them the requisite warnings as required by the law. No memorandum required to be appended at the end of the confession showing that the Magistrate was satisfied that the confessions were true and voluntary, was attached. No question was put to the accused to ascertain from them if they were subjected to maltreatment by police, or that any inducement was made to them, or that any pressure was brought to bear upon them. On top of A these defects, the confessions were recorded admittedly on Friday which was holiday, and, furthermore, no assurance was given to the accused that they would not be delivered back to the same police but on the contrary after recording of the confessions, they were handed over to the same police who had produced them before the learned Magistrate for the confessions. In view of above circumstances, we are in agreement with the learned trial Judge that no reliance can be placed on the confessions of the accused and, therefore, they have been rightly excluded from consideration. ' The next piece of evidence is the ocular evidence comprising the complainant Misri (P.W.1), Banho (P.W.2) and Ghulam Nabi (P.W.3). According to the prosecution case, the complainant Misri was riding the same cycle with the deceased Qadir Bux when they confronted the accused. The other two eye-witnesses were attracted on cries of the complainant. On perusal of the evidence of the eye-witnesses it would appear that they have fully supported the prosecution case inasmuch as that they were present at the Vardat at the time of occurrence and had seen both the accused giving hatchet blows to the deceased Qadir Bux. ' The learned counsel for the appellants severely critised the evidence of above eye-witnesses contending that it was an unwitnessed incident and none of them was present at the time of occurrence. His argument was that neither the complainant nor any of other two eye-witnesses has satisfactorily explained the reason of their presence at the Vardat at the time of occurrence, and, therefore, it could not be believed that, they had witnessed the commission of the murder. It was contended by the learned counsel that complainant Misri and P.W. Banho resided in the same village namely Kauro Memon village which is admittedly four miles away from the Vardat. As for P.W. Ghulam Nabi he stated that his village was one and half miles from the Vardat. Therefore in the opinion of the learned counsel, their presence at the Vardat was doubtful and, the trial Court has erred in placing reliance on their testimony. He further argued that even the circumstances proved on record do not support the evidence of the eye-witnesses. ' Taking up the evidence of complainant Misri first, we have noted that the F .I.R . Was lodged by him with utmost promptitude. The occurrence took place at 6-00 a. m, whereas the F.I. R. Was registered at 6-30 a.m. If the complainant had not been present at the Vardat, it was not possible for him to have gone to the police station and lodged F.I.R. Within half an hour. Even otherwise, it looks quite natural that the complainant and the deceased who were brothers and were doing the work of preparing 'mava'(Khoya) from the concentrated milk would have gone together on cycle for purchasing milk. However, the learned counsel for the appellants argued that it was not necessary for both the brothers to go for purchasing milk and since they were jointly doing the work of preparing 'Mawa' it was expected that there would be division of labour between the two
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brothers and consequently the learned counsel thought that it was not believable that both of them would go after the same work when one alone could do that job. We are not impressed by the argument which is obviously hypothetical, based on assumptions. We may repeat that it was not at all unnatural that both the brothers set out on buying mission on the fateful day. We have, therefore, no reason to disbelieve the presence of the complainant Misri at the time of occurrence only on assumptions. As stated above his presence finds confirmation from the fact that he lodged F.I.R. Without any delay. The alternate rather additional argument adopted by the learned counsel for the appellants in this context was that the hours of incident and filing of F.I.R. Mentioned therein are themselves doubtful and, therefore, the supposed promptitude shown in lodging the F.I.R. Does not help in establishing the presence of the complainant at the time of occurrence. In support of his argument he attacked the integrity of the Investigation Officer who has registered the F.I.R. According to the learned counsel the evidence was not lacking that the Investigating Officer is not a man of integrity and, therefore, it was not difficult for such a police officer to manipulate the whole F.I.R. As per his own choice, what to talk of only timings mentioned therein. ' In order to appreciate the trade launched by the learned counsel against the integrity of the Investigating Officer, it may perhaps be pertinent to refer to his evidence. Sohrab Khan (P.W.9) who was A.S.I. Incharge of the P.S. Sobhodero at the relevant time, has not only registered F.I.R. But has also made investigation in the case. We have carefully perused his statement on oath. No question has been put to him in the cross-examination, indicating that the hour of incident or that of lodging of the F.I.R. Were not correctly mentioned by him. This clearly shows that no opportunity was given to him to give appropriate reply to the allegation. Accordingly he cannot be condemned unheard. We see no reason to doubt the authenticity of the timings given in the F.I.R. ' However, the learned counsel for the appellant attempted to show from the record that the integrity of the above Investigating Officer was questionable and, therefore, the timings recorded by him in the F.I.R. Could not be safely relied upon. In support of his contention, he pointed out that, although in the F.I.R. The distance between the Vardat and the police station is shown as one and half miles yet in his ' cross-examination, the Investigation Officer has admitted that the distance between the police station and the scene of occurrence is only one and half furlongs. The learned counsel further submitted that contrary to the legal requirements the Investigation Officer instead of calling respectable persons of the locality to act as Mashirs both at the time of inspecting the place of occurrence and at the time of arresting the accused and making recoveries from them, contented himself by making relatives of the deceased as Mashirs on both the occasions. According to him the dishonesty of the Investigation Officer was also clear from the fact that he refrained from examining the independent persons who had admittedly gathered at the Vardat and citing them as witnesses. ' As for inconsistency with regard to distance between the F.I.R. And the statement of Investigation Officer, suffice it to say that it is too insignificant to deserve any serious attention or to be permitted to reflect on the truthfulness of the evidence of the Investigation Officer. May be, the inconsistency was due to oversight of the Investigating Officer or the clerk who had taken down his statement. The objection of the learned counsel that the Investigation Officer omitted to call independent Mashirs and examine independent witnesses has also no force. There is no allegation that the omission was intentional and was calculated to favour the complainant at the cost of the accused. No question has been put to the Investigation Officer to show that he was either biased against the accused or was favourably inclined to the complainant's party. In short no motive has been attributed to him for engineering a false case against the accused. ' Accordingly we have no reason to doubt the evidence of the Investigation Officer. In absence of the evidence that for any reason he is prejudiced against the accused, his evidence is as good as of any other witness and can be placed at par with the evidence of such other witnesses. In this
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connection, reliance has been placed on State v. Abdul Fattah and another 1982 P Cr. L J 781 wherein it was held: "These suggestions which have been denied are not sufficient to discard evidence of Investigating Officer particularly when we find nothing in his evidence to suggest that either he has bungled in the investigation, or is motivated against the respondents to implicate them falsely In such circumstances, we propose to reply upon the evidence of the Investigating Officer on the point of recovery of incriminating articles which is to be treated at par with the evidence of any other Mashir. Investigating Officer is a competent witness to prove the recoveries and his reliability as such witness cannot be doubted merely because he has investigated the case". ' In the instant case, as has been pointed out above, there is no indication on record that the A.S.I, Sohrab Khan has joined hands with the complainant's party to falsely involve the accused or that he has in any manner bungled in the investigation. That he made Manzoor Ali, a relative of the deceased as Mashir is no ground to dismiss his evidence as false. The respectability of Manzoor Ali is not questioned. There is no indication that Manzoor Ali has any animosity against the accused. The record shows that he was made Mashir on account of his availability at the spot. If a respectable person, having no malice towards the accused is readily available to the Investigation Officer, there is no need to send for Mashir from the neighbourhood. This is because the emphasis is on respectability of the Mashir and not on locality he comes from Since Manzoor Ali satisfied the necessary prerequisite, his evidence cannot be doubted merely on the basis of his relationship with the deceased nor the evidence of the Investigation Officer will be viewed with suspicion because he made Manzoor Ali as Mashir. Similarly non-examination of independent witnesses should not be allowed to cast any shadow of doubt on the prosecution case in general and the evidence of the Investigation Officer in particular. Admittedly so-called independent persons had gathered after the occurrence. Therefore, even if they had been examined, their evidence would not have advanced the prosecution case. In the circumstances of the case it made no difference if they were not examined. ' Reverting to the evidence of complainant, there is nothing to show that he was inimical towards the accused before the occurrence. From his evidence, it is clear that the motive for the murder was the illicit intimacy between the deceased Qadir Bux and Mst. Muradan, niece of the accused Leemon. Obviously this cannot be advanced as motive for the complainant or any other witness of his side for giving flase evidence against the accused because it does not appeal to reason that on one hand the deceased was carrying on an affair with the woman of the accused's side and on the other hand, even though the accused were the aggrieved party, complainant and his witnesses would implicate them in a false case involving capital punishment. We are of the view that -the criminal liaison between the deceased and Mst. Muradan provided motive to the accused to take the life of the deceased who had brought dishonour to their family, rather to the complainant party for foisting false murder charge on the accused. ' However, the accused have taken a plea that they have been falsely implicated on account of dispute between Ali Nawaz, father of P.W. Ghulam Nabi and Muhammad Ismail, cousin of accused Leemon, as the said All Nawaz had made tenancy application against Muhammad Ismail, which was ultimately dismissed. It would appear that P.W. Ghulam Nabi has denied the questions put to him in this connection. There is also no proof of Muhammad Ismail being cousin of accused Leemon nor of the said accused having pursued the litigation on behalf of Muhammad Ismail. Assuming for the sake of argument that such dispute did exist between Ali Nawaz and Muhammad Ismail, we are unable to believe that the innocent relative of the said Muhammad Ismail would be made the target of the false murder charge for that reason. It appears that apart from the fact that the accused had declared the deceased as 'Karo' with Mst. Muradan, there was no other friction between the parties prior to the occurrence. Consequently the complainant party had no motive to
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falsely implicate the accused and we cannot but place full reliance on the testimony of the complainant. ' The learned counsel next contended that as the evidence of the complainant, so also of any other eye-witness is belied by the circumstances proved on record. He pointed out that it appears from the evidence of Mashir Manzoor All and A.S.I. Sohrab Khan that apart from presence of blood at the Vardat, there were marks of dragging as well as of struggle. According to the learned counsel if the evidence of eye-witnesses is believed, there could be neither marks of dragging nor those of struggle at the Vardat. He averred that the only explanation that can be given for presence of the said marks is that the deceased was all alone at the time of occurrence and when he was attacked, he appeared to have offered some resistence and after he was done to death, he was seemingly dragged by the assailants and thrown in the water. We cannot agree with the learned counsel that the explanation given by him is possible only when the deceased was alone. It can be true even in the case of his being accompanied by the complainant. After giving our best thought to the above argument of the learned counsel for the appellants, we have come to the conclusion that the complainant who was accompanying the deceased from the initial stage of the occurrence, on appearance of the accused at the scene of offence, took care to keep aside and let the deceased to face the accused all alone. Obviously he was so overwhelmed by the fright of the accused that he could not muster up courage to go near them. In this view of the matter the presence of the complainant at the time of occurrence cannot be doubted. ' Coming to the evidence of Banho and Ghulam Nabi, we find that Banho admittedly resides in Kauro Memon village which is four miles from the Vardat and that the village of Ghulam Nabi is one and half miles from there. They are no doubt chance witnesses. But their evidence cannot be rejected merely for that reason. If they were not attracted on cries, why after all they have given false evidence against the accused. As has been pointed out above, they had no motive to falsely implicate the accused and that too in serious charge of murder involving capital punishment. Moreover, their names transpire in the F.I.R. Which has been lodged with promptitude. If they were not readily available at the time of occurrence, the complainant would not have given their names in F.I.R. It was not possible for the complainant to have established contact with them at their villages within half an hour before he went to the police station for lodging the F.I.R. According to them Banho had been to the village of Ghulam Nabi one day earlier to see his sister who is married with Ghulam Nabi's brother. On the day of occurrence, they left the said village together. Banho was returning to his village whereas Ghulam Nabi was going to Sobhodero to make purchases. Of course there are some minor discrepancies in their evidence. Ghulam Nabi was unable to say what purchases he made from Sobhodero. Likewise Banho admitted that he had no par 'icular work with his sister but he had just gone to see her as he used to pay occasional visits to her. Furthermore Ghulam Nabi stated in his examination-in-chief that Banho's sister is his wife, but in his cross- examination he gave a different statement saying that Banho's sister is married with his brother. On the basis of these discrepancies the learned counsel for the appellants argued that the evidence of Banho and Ghulam Nabi was not reliable and, therefore, should be kept out of consideration. In our opinion the discrepancies pointed out by the learned counsel for the appellants are not so material as to reflect on the truthfulness of the above witnesses. Such discrepancies are natural and no undue importance should be attached to them. We have no doubt that both Banho and Ghulam Nabi had responded to cries but we are of the view that by the time they arrived at the Vardat the accused had already done their job. It appears that Banho and Ghulam Nabi did not reach in time to see the accused giving blows to the deceased, though they got the opportunity to see them fleeing from Vardat. ' The next piece of evidence that has been relied upon by the nrosecution is that the accused voluntarily surrendered at the Police Station and at the time of their surrender blood-stained
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hatchets and blood-stained clothes were secured from their possession. On this point the proseuction have examined A.S.I., Sohrab Khan (P.W.9) and Mashir Manzoor Ali (P.W.7). It is in evidence of the A.S.I. That after having inspected the Vardat, he went to the accused's village where he learnt that the accused had already gone to the Police Station. Accordingly, he returned to the Police Station when both the accused Leemon and Misri appe3red before him alongwith blood- staiend hatchets and blood-stained clothes. According to the A.S.1, he placed the accused under arrest and secured blood-stained hatchets and clothes from their possession. ' The arrest of the accused and recovery of blood-stained articles from their possession were effected in presence of Manzoor Ali who has fully corroborated the A.S.I. In all material particulars. According to Manzoor Ali he had accompanied the A.S.I. To the accused's village and as the accused were not available there he returned with…
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