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Petitioner: FEROZE VS Respondent: THE STATEHonorable Justice ABDUL QADIR SHEIKHM. K. Jatoi,S. Murtuza
1968 P
1968 P Cr. L J 1716
[Karachi]
Before Illahi Bakhsh Khamisani and Abdul Qadir Sheikh, JJ
FEROZE AND ANOTHER‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 250 and Confirmation Case No. 45 of 1967, decided on 26th March 1968.
Penal Code (XLV of 1860),
S. 302--‑Murder‑--Evidence of eye witnesses supported by recovery of crime weapons and blood‑stained clothes from accused‑Nothing to suggest that prosecution witnesses had any reason for falsely implicating accused‑--Guilt of accused for murder, held, proved
by prosecution by evidence fully reliable and convincing.
M. K. Jatoi for Appellants.
S. Murtuza for the State.
Date of hearing: 20th March 1968.
JUDGMENT
ABDUL QADIR SHEIKH, J.‑This case has come before us by way, of confirmation of sentences of death imposed upon the con victs Feroze son of Darya Khan, aged 35 years, and Muhammad Umer son of Abdul Ghafoor aged 28 years, and on a joint appeal filed by them. The appellants were tried and found guilty by the Sessions. Judge, Jacobabad for the murder of deceased Rochomal, in his house in Thul, District Jacobabad, on the 22nd of March 1966 at about 4‑30 a.m. Both the appellants have been convicted under S. 302/34, P.P.C. and sentenced to death; appellant Feroze has also been found guilty under section 13 (d) and 13 (e) of the Arms Act and sentenced to 6 months R. I. and 12 months' R‑. I., respectively. Both these sentences have been directed to run concurrently however these would be unnecessary in case death sentence of Feroze is confirmed. The case of the prosecution shortly stated, is .as follows:
Ghulam Rasool Chowkidar was on his round as usual in the early hours of the morning of 22nd March 1966 in the Bazar of Thul. When he reached near the wine shop of deceased Rochomal, he heard sound of a bullet‑fire from the house above the wine shop where Rochomal Hindu used to reside. A Municipal electric lamp was burning and Ghulam Rasool had also a torch. On directing flesh of the torch towards the house he noticed Rochomal coming out of the room shouting for help. He also noticed blood all over his body and the clothes. He then saw the two appellants dragging Rochomal inside the room. Ghulam Rasul tried to go upstairs but he found the door locked frown inside. By this time another watchman Afzal Khan also reached the spot. Leaving him there, Ghulam Rasul rushed to convey the news to his Jamadar Yar Muhammad whom he met at the square of the bazar and gave the news. Yar Muhammad on learning the details of the incident and the names of the appellants went .to the Thul Police Station at a distance of about 3 furlongs and lodged the First Information Report with Imamdin S. H. O. at 5 a.m.
This Police Officer came to the place of incident where he found appellant Feroze already apprehended by Lal Siyal and others. It so happened that Lal Siyal who was sleeping in a Wara near the house of Rochomal suddenly woke up on hearing the shrieks of his cattle and on seeing Feroze caught him on suspicion as a thief. Subsequently, Ghulam Rasul and Afzal Khan chowkidars also came to this Wara and identified Feroze as the assailant of Rochomal. The police officer took Feroze in custody and after breaking open the door of the staircase went upstairs the house of Rochomal where he was found lying murdered in a pool of blood on his bed. There were 20 pellets on his charpoy and an empty cartridge of 20 bore on the ground, with blood all around inside as well as outside the room. The Police Officer then conducted the usual investigation and sent the body of the deceased to Thul Hospital for post‑mortem examination.
Thereafter, the police‑officer secured the shirt and shalwar from the person of Feroze as both were stained with blood and Mashirnama Exh. ‑26 was prepared in this connection in the presence of mashirs Murad bux and Muhammad Siddiq. The S. I. then proceeded to the otak of Illahibux Sarki a few paces away where from he arrested accused Muhammad Umer. As the shirt, shalwar and coat on the person of Muhammad Umer was also noticed to be stained with blood, the S. I. secured these articles under Mashirnama Exh. 30 in the presence of the same mashirs. Feroze showed his willingness to produce the pistol with which he had caused the murder of Rochomal and he then led the Police party and the mashirs behind the northern wall of the bungalow of Illahibux wherefrom he dug out the pistol which was taken into custody under mashirnama Exh. 31. Muhammad Umer also showed his willingness .to produce his weapon of offence, namely, the knife and took the Police party to the roof of the same bungalow and produced it from rubbish lying in the corner. The mashirnama prepared in this respect is Exh. 32.
The clothes and the weapons secured, from the appellants were sent for, chemical analysis of the blood on them and the Chemical Analyser's report Exh. 35 subsequently received showed human blood, on the coat and shalwar of the appellant Muham mad Umer, while .the blood on his shirt and the knife secured at his instance had disintegrated. Both the clothes secured from the person of appellant Feroze were, however, found to be stained with‑human blood.
Dr. Ghulam Nabi, Assistant Medical Officer, Thul who conducted post‑mortem examination on the body of the deceased found the following five external injuries on his person:
"1. An incised wound 1" x " x muscle deep on left side of the neck cutting the soft tissue and blood vessels:
2. An abrasion " semi circular on left cheek.
3. Two linear scratches 1" x " long on right fore‑arm.
4. A lacerated wound 3" x " x, " on the right elbow back. Charring was present.
5. An incised wound 1" x 4" muscle deep on back of neck."
All the injuries according to the doctor were ante‑mortem, and out of these Nos 1 and 5, appeared to have been caused by a sharp weapon like a knife whereas the injuries 2 and 3 could be as a result of rubbing against hard substance. The injury No. 4 was caused by the discharge of a fire‑arm, the range of the weapon being within four feet.
The prosecution case against the accused at the trial consisted of, as indicated above, the ocular testimony of Ghulam Rasul P. W. 5 as supported by witnesses Yar Muhammad and Afzal Khan; the arrest of Feroze immediately after the incident and the circumstantial evidence as to securing of the blood‑stained articles from the person of both the accused and the recovery of the weapons of offences at their instance. The pistol produced by appellant Feroze has also been connected with the crime empty secured from the scene of offence, according to the statement of the fire‑arm expert Shah Jehan Khan P. W. 1. As against this the defence of the appellant at the trial was a mere denial of the prosecution allegations. Feroze appellant, however, stated that he was involved falsely in this case on account of enmity with the police. In this connection he produced a previous judgment of the Sessions Court acquitting him of a charge under section 326, P. P. C. in Appeal No. 61/62 on the 17th of February 1961. The case of Muhammad Umer further was that lie was involved on account of enmity with Issan Shah, Chairman, who had forcibly occupied his land.
Having heard the learned counsel for the parties and gone through the entire record of the case before us we find nothing; to suggest that .the prosecution‑witnesses in this case had any reason for falsely implicating the appellants on this serious charge of murder. All the three prosecution witnesses Ghulaml Rasul, Afzal Khan and Yar Muhammad were employed as Chowkidars at Thul and their presence near the scene of occur rence at the relevant time is quite natural. There is nothing to suggest that they had any connection with the deceased Rochomal for whose murder they would go to the length of falsely supporting the prosecution case. P. W. Lal Siyal is another independent witness whose presence at the Wara on the night of occurrence is natural. According to the prosecution case Feroze appellant came to the Wara to wash his clothes and this disturbed the cattle in the Wara on account of which the sleep of Lal Siyal was disturbed and he caught Feroze, on suspi cion as a thief. On this connection Afzal Khan and Ghulam Rasul were attracted to the Wara and they immediately identified Feroze as the assailant of the deceased. Feroze was thus caught soon after the commission of the crime with the blood of the deceased on his clothes. The weapon of the offence, namely, pistol which has been connected with the crime empty according to reliable evidence of the expert produced by. the prosecution was secured at the instance of Feroze soon thereafter. In the wake of these events Muhammad Umer appellant was also apprehended at the otak of Illahibux with fresh human blood on his person. The knife a like weapon used on the person of the deceased was also secured by the police on the willingness of Muhammad Umer to produce the same. By the time the knife was examined by the Chemical Analyser the blood on it had disintegrated, but the learned Sessions Judge has rightly, relied upon this circumstantial evidence also among several other pieces of the prosecution evidence against Muhammad Umer.
Ghulam Rasool P. W. 5 up to the stage of committal enquiry gave the details of the incident fully as were stated by him to Yar Muhammad and Afzal Khan. He stated that on hearing the gun‑shot and also the cries coming out from the house of Rocho mal at about 3 or 4 a. m. on the night of occurrence when he was on the Library Road in the Bazar of Thul, he saw in the light of the electric bulb the two appellants dragging Rochomal inside the house. According to him he knew them from before and he tried to go upstairs the house but he found the door of the stair case closed from inside. At the trial in the Sessions Court, however, he slightly changed this version, in that he firstly said
"I heard the cries of Rochomal shouting murder! murder! I saw Rochomal and the present two accused. Again says that I did not saw the accused. Both the accused got down. They jumped over into the lane. Again says of the two accused one had stood inside the storey and the other jumped down in the lane and went in wara."
The learned Sessions Judge, in our opinion, has rightly observed that the change in the statement of Ghulam Rasul may be due to the fact that lie was deposing in the Sessions Court about 14 months after the occurrence and that by this time as he had left Thul and taken abode at Mahrabpur, in District Nawabshah, it is possible that the lapse of time had brought this lapse of memory. The original version of Ghulam Rasul in the Sessions Court was brought on record under section 288, Cr. P C. and this statement by, him is corroborated in full details by the evidence of Yar Muhammad, the First information as was given by him in the First Information Report and up to the stage of the trial in the Sessions Court. Afzal Khan Chowkidar also supported this version fully in his statement before the Committal Magistrate. He, however, could not be secured in spite of efforts for his examination in the Sessions Court and therefore his earlier statement before the Committal Magistrate was brought on record under section 33 of the Evidence Act. We, therefore, find that the prosecution have proved the guilt of the appellant for the murder of deceased Rochoma he evidence which is fully reliable and convincing.
It was however urged before us t at Feroze appellant having been caught in the Wara immediately after the occurrence according to the prosecution evidence, would not have had the time and opportunity to hide the weapon of offence, namely, the pistol behind the wall of the Otak of Illahibux. But we find from the record that the Otak of Illahibux is about 11 paces from the house of Rochomal, and in between the two, there is only a mosque where as the Wara of Gobindomal where Feroze was caught is 2/3 houses away from the residential house of Rochomal. This circumstance does not belie the prosecution .case for Feroze appellant had enough opportunity available to him to get rid of the pistol and then come to wash his clothes in the Wara without the incriminating article on his person.
For the reasons stated above, we are clearly of the opinion that there is no merit in this appeal. The appellants have also been rightly awarded the adequate sentences of death for the murder of deceased Rochomal in his house and they do not deserve any leniency in this connection. The sentences of death are accordingly confirmed and the appeal is dismissed.
Appeal dismissed.