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Petitioner: The STATE VS Respondent: MUHAMMAD HASSAN And 5 OTHERS
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Muhammad Ali Sayeed Title: The STATE vs MUHAMMAD HASSAN And 5 OTHERS Case No.: Criminal Acquittal Appeal No. 208 of 1969 Date of Judgment:1970-09-28 Reported As: 1972 P Cr. L J 107 Result: Orders accordingly
JUDGMENT
JUDGMENT Muhammad Haleem, J.--This appeal has been filed by the State against the acquittal of respondents Muhammad Hassan (25), Ismail (35), Ali Bux (30), Allahditto (28), Yaqub (25) and Sobdar (30) of the offences under sections 148 and 302/307/342 read with section 149, P. P. C. and also against the acquittal of respondents Ali Bux and Allahditto of the charge under section 13(d) of the Arms Act. They were tried on the said charges for committing the murders of Mitho (25) and his brother Bachal (35) attempted murder of Mst. Zenab (65), their mother, and wrongful confinement of Sain Bux by the learned Additional Sessions Judge, Nawabshah and all of them were acquitted vide his judgment dated 31st January 1969. 2. The incident occurred at 1 p.m. on 16th July 1967, near the otalc of respondent Muhammad Hasan situate in Deh Visar, Taluka Naushahro Feroze and the report (Exh. 9) was lodged by Amir Bux (P. W. 3) at Police Outpost Darya Khan Mari, which was recorded by Muhammad Yousuf A. S. I. (P. W. 12) at 6-45 p.m. the same day. A copy of the report was sent to the Police Station Padidan where it was transcribed in the section 154, (Cr. P. C.) book at 9 a.m. the next day by Muhammad Nawaz, Head Constable. This police station is about 13 miles away from the place of incident. The contents of the report in the words of Amir Bux are as under :-- "Bachal, Mitho, Najamdin, Sachal, Qamaruddin and Ghulam Hyder are real brothers and are my nephews and are living adjacent to me in separate houses. During the last election, Haji Muhammad Hasan's nephew was murdered in which Najmud- din, Bachal and Sachal were challaned in the case. But subsequently they were acquitted in that case about a year prior to the incident. Therefore, both the parties were not on good terms and were not visiting to each other.
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Muhammad Hassan and Bachal are related inter se. On the last night our murshid Ahmed Shah and nekmards Din Muhammad, Haji Rasool Bux and others settled the differences between the parties on Holy Quran and made them brothers. Therefore, today my brother's wife Mst. Zenab, her sons Bachal and Mithal and her cousin Sain Bux and Mst. Khairan, wife of Bachal, Rahmat aged about 3 years daughter of Bachal, Nek Muhammad aged about 6 years son of Bachal, Shahzadi aged about 4 years daughter of Sain Bux went to the house of Muhammad Hassan in the morning to offer condolence on- the death of Mewo. Today at about 2 p.m. while I was sitting in my house Mst. Zenab mother of Bachal, her daughter-in-law Mst. Khairan, Nek Muhammad and Rehmat son and daughter of Bachal came to me raising cries. On enquiry Mst. Zenab said "At about Katheri Manjhid time, I, my daughter-in-law Mst. Khairan, my sons Bachal Mitho, Bachal's son Nek Muhammad, his daughter Rehmat and my cousin Sain Bux and his daughter Shahzadi went to the house of Muhammad Hassan. At about 11 a.m. we reached there. Muhammad Hassan was sitting in his otak adjacent to his house. We i.e. T, my daughter-in-law and small children went towards the house while Bachal, Mitho and Sain Bux remained in the otak of Muhammad Hassan. At about 1 p.m. the meals were ready and supplied to us in the house. While the lunch of Bachal, Mitho and Sain Bux was taken by Yakub and Allah- ditto to their otak, and shortly thereafter there was a gun shot report and some more outside the house towards the otak. I came outside the house of Muhammad Hasan and found Muhammad Hasan armed with a gun and Sobdar armed with a hatchet. Allahditto with a revolver, Ismail with a gun and Ali Bux with a pistol. Ismail fired a gun report at my son Bachal which struck him in his arm and he ran towards South. Ismail and Ali Bux ran after him and reached him at some distance from the otak. Ismail fired at him with a gun and fell him down. Allahditto fired revolver shot at Mitho and Muhammad Hassan gave him blows with butt end of the gun and the butt end was broken. Mitho tried to run away from the landhi but Muhammad Hassan, Sobdar and Allahditto felled him down in front of the landhi and Sobdar gave him various injuries on his face and other parts of the body and killed him. I intervened to rescue Mitho but Sobdar gave me blows with backside of the hatchet. Then I, my daughter-in- law and young children ran from there raising cries and found wrongfully confined therein Sain Bux by the accused". On hearing this, I, Najmuddin, the brother of deceased came to the place of occurrence and found Bachal lying dead about a furlong away towards the South from the otak and had gun ' shot injuries on his head and arm and in front of the landhi of the otak. Mitho was also lying murdered in the pool of blood while Sain Bux was found tied on his feet, legs, arms and neck with a turban in front of the landhi. On enquiry he narrated the same story as narrated by Mst. Zenab. There was lying a box near the dead body of Mitho. Sobdar further said that during the firing these accused have deliberately injured him (Sobdar). We then untied Sain Bux. Leaving Sain Bux and Najamdin at the dead bodies I have come for report. Sain Bux has also further told that the accused at the suggestion of Muhammad Khan Wagan had kept the boxes near the dead bodies which were brought by the accused there after the murder." 3. After recording the report Muhammad Yousuf A. S. I. repaired to the place of incident and reached there at 9-30 p.m. He recorded the statement of Mst. Zenab and prepared a mashir- mma of the injuries on her person in the presence of Mashirs, Din Muhammad and Buxan and sent her to Padidan Dispensary for examination and treatment. He next examined Sain Bux who produced a turban with which he was tied and this turban was secured under Mashimama (Exh. 31) in the presence of Mashirs Miral Khan and Din Muhammad. He kept a guard over the dead bodies for the night and soon after handed over the investigation of the case to Amanullah S. H. O. (P. W. 13) who had arrived there on recieving the information from the outpost about the murders. The next day Amanullah S. H. O. inspected the place of incident in the presence of Mashirs Din Muhammad and Ali Nawaz and observed not only marks of blood on the walls of the otak but leading from there to the place
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where the dead bodies lay and also on the ground ; one crime empty (.12 bore) was lying in the otak and another crime empty was found near the dead body of Mithal. The dead body of Bachal lay about 300 paces away to the south of the otak and he also observed a trail of blood leading from the otak to the place where his dead body lay ; three empty cartridges were found near the dead body of Bachal. One trunk, each containing old clothes was also found near the dead bodies of the two deceased. The above articles were secured under Mashirnama (Exh. 32) in the presence of Mashirs Din Muhammad and Ali Nawaz. The crime empties were sealed while the blood-stained earth was sealed in a separate parcel. The dead bodies were sent for post-mortem examination to Naushahro Feroze Dispensary. He then arrested respondents Ismail, Allah Ditto, Ali Bux and Sobdar in the presence of Mashirs Din Muhammad and Miral as per Mashirnama (Exh. 35). Respondent Ismail volunteered to produce a gun and led the Investigating Officer and the same mashirs to a room of his house, from where he produced the licensed single-barrel gun of his father, Gul Hassan, 16 cartridges and one empty cartridge which were secured under Mashirnama (Exh. 36), and sealed. Respondent Allahditto volunteered to produce the incriminating articles and led the Investigating Officer and the mashirs to his house and from under a gunny bag lying there he produced a revolver (.32 bore) two misfired cartridges, two empty cases, and one blood stained shirt. These articles were secured under a Mashirnama (Exh. 37) and sealed separately. Respondent Sobdar then led the Investigating Officer and the mashirs to his house and from under his cot produced a blood-stained hatchet which was secured under Mashirnama (Exh. 38) and sealed. Respondent Ali Bux volunteered to produce a pistol (.12 bore) and led the Investigating Officer and the mashirs to his house and from inside a 'Val/ti" he took out a country-made pistol which contained a misfired cartridge and it was secured under Mashirnama (Exh. 39). The pistol and the misfired cartridge were sealed. Respondent Allahditto again volunteered to produce the clothes and other articles of Mst. Zenab, Mst. Khairan and her children and led the Investigating Officer and the mashirs to his house from where he produced two Ajraks, one old white burqua, one old shalwar, one little blue shirt of a child, two pairs of lady's chappals and one pair of baby's shoes, which were secured under Mashirnama (Exh. 40). Muhammad Yousuf (P. W. 12) the same day went in search of respondent Mohammed Hasan towards the sand dunes about 3-4 furlongs away from the village and from there arrested him in the presence of Mashirs Murad Ali and Muhammad Yaqoob. He was then wearing a blood-stained shirt and shalwar which were seized from his person as per Mashirnama (Exh. 20). He produced respondent Muhammad Hasan and the articles before Amanullah S. H. O. Muhammad Hassan then offered to produce a gun and led the Investigating Officer and the Mashirs Din Muhammad and Miral, to his house, from where he produced the gun (.12 bore) which contained one crime empty in its chamber and .12 cartridges, which were secured under a Mashirnama (Exh. 41). The gun and the crime empty were sealed. The blood-stained earth secured from the places where the dead bodies lay, the hatchet produced at the instance of respondent Sobdar, the white shirt of respondent Allahditto and the shirt and shalwar of respondent Muhammad Hassan were sent for chemical analysis and according to the report (Exh. 45) of the chemical analyser all these articles were stained with human blood. The guns and the revolver secured at the instance of respondents Ismail, Muhammad Hasan Allahditto, five crime empties secured from the place of incident and one of the two crime empties produced by respondents Ismail and Muhammad Hasan were sent for matching to the forensic laboratory and according to the testimony of Ballistic Expert, Muhammad Sarwar (P. W. 5) two crime empties marked C/3 and C/6 matched with the gun pro - duced by respondent Muhammad Hassan. With regard to the i other crime empties the opinion was in the negative. Respondent Yacoob was arrested on 20th July 1967, and he produced two straw covers, one 'chowry', one glass and one bowl of aluminium which were secured under Mashirnama (Exh. 42).
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4. Dr. Mutalib Husain performed autopsy on the dead bodies of Mitho and Bachal. On the dead body of Mitho he observed the following injuries "(1) An incised wound on right side lower part-of cheek measuring 4' x 3' x 2" cutting underlying bone (mendible). (2) A gun shot wound on the upper limb left side measuring Y in diameter skin deep circular in shape black maring. (3) An incised wound on left side on root of left thumb measuring 2'xl'x (4) An incised wound on right scapular region measuring 5' x 2" x 3" cutting underlying bone. (5) An incised wound on left parietal bone measuring 5' x 1" x 1 cutting underlying bone. (6) An incised wound on right shoulders measuring 2" x x and in his opinion except injury No. 2 which was caused by the discharge of a firearm, all other injuries were caused by a sharp cutting weapon and death was instantaneous. According to him, injuries Nos. 1, 4 and 5 were individually sufficient to cause death in the ordinary course of nature. On deceased Bachal he noticed the following injuries :-- "(1) A gunshot entrance wound in front of right elbow-joint 2" length 1" breadth deep to exitude with black margin causing fracture of bone. (2) A gunshot exit wound on the backside of right elbow- joint 4' x 3" deep to entrance wound. (3) A gunshot entrance wound on right eye 1" in diameter deep to exit wound. (4) A gunshot exit wound on the right side of occipital bone. 1" in diameter deep to entrance wound. (5) A gunshot exit wound below right eye 1" in diametter deep 3". (6) 2 gunshot wounds on left and right side of mouth 1" in diameter 3" deep each." and in his opinion all the injuries were caused by the discharge of a firearm like a gun and death was instantaneous. Injuries 1, 3, 5 and 6 were, according to him, individually and collectively sufficient to cause death in the ordinary course of nature. One bullet was also recovered from the dead body of deceased Bachal. 5. Respondent Sobdar was sent for medical examination to the same doctor on 18th July 1967, who noticed the following injuries on him :-- "(1) A gun shot entrance wound on the lower part of back above the left glutial region 4' in diameter circular in shape with black margining 2Y deep." The figure 4" occurring after the word 'region' and before the words "in diameter" is a mistake for the actual figure Y vide medico-legal certificate (Exh. 15). In the opinion of the doctor this injury was caused by the discharge of a firearm and grievous in nature. 6. Dr. Fazul Haq examined Mst. Zenab on 18th July 1967, and noticed the following injuries on her person :-- "(1) A contusion 1* x Y on the left costal margin of the 10th rib. (2) A contusion 1" x on the back upper side." and in his opinion, injury No. 1 was grievous while No. 2 was simple and that they were caused by "some blunt substance." 7. In defence, the appellants denied the prosecution case and proclaimed their innocence. In the committal Court respon dent Muhammad Hassan admitted having produced the licensed gun but denied the recovery of the clothes from his person. He further alleged that respondent Sobdar received the gunshot injury at the hands of Sain Bux, Najamdin and others and attributed his implication in the crime at the instance of the prosecution witnesses because of the counter-case against them. In reply to the question whether he had to say anything else, he stated :-- "No. They had come to take away the girl of Mewo by force. I will give my further statement in the Court of Session." In the trial Court he disclosed his defence as under :-- "After Mewo's death Sachal and his brothers wanted Mewo's wife and children to stay with them
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and I refused to do so. They threatened to forcibly take them away. On the day of incident both deceased Najamdin along with Sainbux and Sachal came armed with guns and pistol to my otak and demanded the girls and on refusal they went to my house where I, Sobdar and others followed. They attacked us with guns. Sobdar my brother also received bullet injury at their hands." He again emphasised that he was innocent and a witness in the counter-case against the prosecution witnesses. In the committal Court respondent Sobdar denied the production of the hatchet and alleged his implication in the crime at the instance of the prosecution witnesses because of the counter-case against them. He took the same stand as respondent Mohamed Hassan that the prosecution witnesses had come to take away the 'girls' of Mewo by force. In the trial Court he explained his injury by saying that he had received it at the hands of the deceased party when they had attacked him and others and adopted the defence of Muhammad Hassan. In the committal Court respon dent Alibux denied having produced the pistol and adopted the defence of Muhammad Hasan. In the trial Court he alleged that he was a witness in the counter case and denied having partici pated in the fight. In the committal Court respondent Allahditto denied the production of the clothes belonging to Mst. Zenab and others and also the revolver and adopted the defence of Muhammad Hassan. In the trial Court he alleged that he was not present when the fight took place and that he was implicated because his relations were witnesses in the counter-case. In the committal Court respondent Yaqoob alleged that respondent Sobdar received the gunshot injury at the hands ofSainbux, Najmuddin and others and adopted the defence of Muhammad Hassan. In the trial Court he alleged that he was falsely implicat ed due to enmity. In the committal Court respondent Ismail denied the production of the gun and adopted the defence of Muhammad Hassan. In the trial Court, he alleged that Bajhi was murdered and that his father, Gul Hasan, acted as a mashir in that case against the deceased and his brothers and that is why he was implicated in the crime. 7-A. Deceased Bachal and Mitho were real brothers and sons of Nek Muhammad (senior) while Mst. Zenab is their mother. Amirbux is the brother of the two deceased and uncle of Najam- din, Sachal, Kamardin and Ghulam Hyder, who are brothers inter se. Mst. Khairan is the widow of deceased Bachal while Nek Muhammad is their son. Sainbux is the maternal uncle of deceased Bachal and his sister is married to respondent Muhammad Hassan. Din Muhammad is the uncle of the two deceased while Mst. Sahib Khatoon is their sister, who is the widow of Mewo, brother of respondent Muhammad Hassan. She had one son and three daughters, one of whom is married to respondent Allahditto and the other to the son of Suleman, a relative of the respondent. Respondent Muhammed Hasan and Sobdar are brothers inter se while the other respondents are related to them. Bajhi, upon whose murder it is said that the two deceased were implicated, was married to one of Mst. Zenab's daughters, named Mst. Moran, while respondent Sobdar is the uterine brother of her husband. It is thus clear that the respon dents, the two deceased and the witnesses are all related to each other. The respondents resided about a mile and a half away from the village of the deceased. 8. The two deceased were on visiting terms with the respon dents prior to the murder of Bajhi, nephew of Muhammad Hassan. He was killed about 4-5 years before the present incident and deceased Bachal, Najamdin and Sachal were tried for his murder but were acquitted a year back. The relations between the deceased and the respondents after the murder of Bajhi had become strained. Mewo, the brother-in-law of the two deceased died three months before the present incident and because of their strained relations neither they nor their family members had gone to condole his death. Efforts were made for reconciliation earlier by Bachal, Mewo before his demise and Allahbux and they had approached their Murshid, Ahmed Shah in this behalf and it was on the night preceding the murder that a 'faisla' was effected on Holy Koran through the intervention of their Murshid, in the village of Dur
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Mohomed about 1 acre away from the village of the deceased. It was agreed that Bachal would give one of his two daughters to respondent Muhammad Hassan and the other to Allahbux, brother of respondent Alibux, for being married to some one in their families. Having settled their differences the two deceased, Sain Bux, Nek Muhammad son of deceased Bachal, Mst. Zenab, Mst. Khairan and her children went to the house of respondent Muhammad Hassan, the next day as a gesture of goodwill to condole the death of Mewo. What happened there is narrated in the report (Exh. 9). 9-A. The direct evidence in the case was furnished by the testimony of four witnesses, namely Mst. Zenab, Mst. Khairan, Mst. Sahib Khatoon and Sainbux. The trial Court however rejected their testimony. While appraising their evidence it held that they were members of the same family and "thickly related inter se". With this background in view it held that "the ocular evidence itself is of doubtful and improbable nature". In this context while dealing with the evidence of Mst. Zenab, the trial Court reached the conclusion that the injuries on her person were "subsequently manipulated to establish her presence at the vardat as eye-witness and to give it a real look." Reliance for this view was placed on the opinion of the doctor as to the age of the injuries, namely that they were received within 24 hours. She was examined on 18th July 1967, and though the time of examina tion is not mentioned in his testimony yet it is so stated in the medico-legal certificate (Exh. 46) as at 5- 30 p.m. This time, according to the trial Court was beyond 24 hours as the incident took place at about 2 p.m. though the time given in the F. I. R. was 1 p.m. The doctor also did not say anything about the age of the injuries in his examination-in-chief but in reply to the question in his cross- examination, he stated that they were received within 24 hours. How was he able to pinpoint the age of the injuries as "within 24 hours" is not clear as no date is available either in his certificate or in his testimony for estimat ing the age of the injuries. The columns in the certificate are filled in by a copying pencil and the signature is only in ink. However, in the column "probable duration of injuries" the following words "within 24 ho" are written in a different ink. In the printed record this column is blank. Neither the State counsel nor the defence counsel brought this fact to our notice at the time of hearing of this appeal and it was while writing the judgment that this variation was discovered. We accordingly issued notice and heard the learned counsel for the parties with a view to get a clarification. They were unable to enlighten us in this respect. If the words in ink in the original certificate were thereat the time the record was sent for printing there was no reason why it should have been left blank; we are doubtful whether the words "with 24 ho", an inaccurate expression, were also written by the doctor at the time of signing the medico-legal certificate and under the circumstances there is a probability that these words were added surreptitiously. In the absence of the date in the certificate the opinion of the doctor as to the age of the injuries appears to us rather a guess. Moreover, the age of an injury cannot be ascertained with any certainty and the error of a few hours is possible either way. In his book on Medical Juris prudence and Toxicology, 13th Edition, J. P. Modi, the learned author, at page 235, has thus stated :-- "It is not easy to give the exact time of infliction of any injury, but an approximate time can be given from the data given below. Hence it is always necessary to mention 'about' when giving the period of an injury." For the above reasons, the trial Court could not have relied with certainty on the age of the injuries with a view to brush aside the testimony of Mst. Zenab upon the ground that the injuries were manipulated subsequently. In this context neither can it be said that her version is falsified by the medical evidence nor can the supporting evidence of Mst. Khairan, Sain Bux and Din Mohd. be rejected on the ground that it stood in conflict with the medical evidence and they had deposed merely to support the case of Mst. Zenab as they were all interested witnesses. Mst. Zenab had sustained one grievous and one simple injury and was admitted to the hospital on 18th July 1967, and remained there as an indoor patient till 24th July 1967, and left against medical advice. It is
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inconceivable to hold that these injuries could have either been self-suffered or self-inflicted with a view merely to support a false stand. Under the circumstances we are constrained to hold that the very basis for reaching the conclusion that her evidence was "of doubtful and improbable in nature" is without any reasonable foundation. There is also no material on record to indicate that she had any thing to do with the murder of deceased Bajhi and under the circumstances it is not possible that Mst. Zenab, an old lady of 65 years, would go to the extent of lending herself as a witness and to suffer the injuries merely to support a false version. In para. 26 of the judgment, the learned trial Court refers to an effort made to introduce the lady witnesses to make it appear that the object of the visit of the deceased and Sain Bux was not to abduct forcibly the minor children of Mewo but to condole Mewo's death. This finding is apparently based on the conclusion reached by the trial Court that there was no Taisia' as alleged by the prosecution witnesses the previous evening. Not only the prosecution witnesses but Din Muhammad has also testified about the "faisla" having been reached between the parties. His evidence on this aspect of the case has been brushed aside on the ground as under :-- "His word is not entitled to any credit as he is interested person and near relative of the deceased. He is treated as mashir too and in all the mashimamas he is shown as mashir…
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