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Petitioner: ISMAIL And Others VS Respondent: THE STATE-
Court Name: Sindh High Court Judge(s): Syed Sajjad Ali Shah Title: ISMAIL And Others vs THE STATE- Case No.: Criminal Appeal No. 48 of 1986 Date of Judgment:1986-11-13 Reported As: 1987 P Cr. L J 1390 Result: N/A
JUDGMENT
JUDGMENT The seven appellants named above have filed this criminal appeal jointly, whereby they have called in question their conviction under sections 148 and 149, P.P.C. And sentence to R.I. For one year each and under sections 452 and 149, P.P.C. Sentence to R.I. For three years each and fine of Rs.1,000 or in default R.I. For three months more. By the same appeal appellant No. 1, Ismail son of Gamman Khaskheli and appellant No. 5 ldrees son of Gamman Khaskheli have challenged their conviction under section 307, P.P.C. And sentence of R.I. For 6 years and fine of Rs.2,000 each or in default R.I. For three months more. Appellant No. 7, Jan Muhammad alias Jano son of Khan Muhammad has also challenged his conviction under section 302, P.P.C. And sentence to life imprisonment and fine of Rs.5,000 or in default R.I. For one year. He is further directed to pay compensation to the legal heirs of Mst. Bhirai a sum of Rs.5,000. It is also directed the fine if recovered from appellant No. 6 Leemo, then 50% thereof be paid to Mst. Noor Khatoon and likewise half of the fine recovered from appellant Idrees be paid to Mst. Basran. Appellants have been given benefit of section 382-B, Cr.P.C. Under this appeal judgment impugned is dated 3rd March, 1986 passed by Mr. S. Mahmoodul Hassan Naqvi, First Additional Sessions Judge, Nawabshah. Briefly stated the relevant facts of the case are that from the appellants named above Nos. 1 to 5 are brothers inter se and No. 6 Leemo is their uncle being brother of their father Gamman. Appellants and complainant party are caste-fellows and relatives and reside in the same village Mir Khan Laghari, Taluka Sakrand, District Nawabshah. It appears from F.I.R. That there was dispute between the two parties over closing of track by the complainant party near their houses and extending their hedge to the south. This was objected to by the appellants and they had asked the complainant party to shift the hedge to its original place to allow wider way as was available
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before. Complainant party had closed down the drain and extended their hedge after having obtained approval from the Nekmards who had resolved the dispute. Appellants refused to abide by settlement and insisted on status quo ante. On the day pf incident i.e. 7-1-1983 at 4 p.m. All the seven appellants named above came duly armed to the house of the complainant Haji Allah Ditta and asked him to shift the hedge to its original place and on his refusal to do so appellant Leemo instigated whereupon all the appellants entered the hedge and attack was opened. Appellant Leemo was armed with double barrel gun and appellants Jano and Idrees were armed with single barrel guns. Appellant Ghani was armed with hatchet while appellants Ismail, Nooro and Sattar were armed with Lathis. After instigation Leemo fired at Haji Murad , who got his face and neck injured whereupon Mst. Basran, Mst. Noor Khatoon, Mst. Bhirai, Mst. Sahib Khatoon, Khaman and Rahman came forward. Appellant Leemo fired at Mst. Noor Khatoon, appellant Idrees fired at Mst. Basran and Haji Mitho. Appellant Janoo fired at Mst. Bhirai, Mst. Sahib Khatoon and Khaman who all became injured. All the injured persons fell down. Appellant Sattar gave Lathi blows to Haji Mitho. Appellant Ghani gave hatchet blows to Rahman. Appellant Ismail gave Lathi blows to Murad . Appellant Nooro gave Lathi blows to Khaman. Complainant raised cries and on his cries and gun reports persons came out from their houses in the village. Appellants fled away firing in the air. Complainant came to Police Station Sakrand at a distance of four miles and registered F.I.R. At 5- 30 p.m. S.H.O. Sarfraz Ahmad has deposed before the trial Court that after registration of F.I.R. He came to the scene of offence and saw injuries on eight persons. He prepared such Mashirnama Exh. 21. He recorded statements under section 161, Cr.P.C. Of Mst. Bhirai, Mst. Noor Khatoon, Mst. Basran, and Haji Murad and referred them to the hospital for examination. Mst. Bhirai died subsequently in the hospital. This witness has further stated that he recorded statements of other witnesses namely P.Ws. Khaman, Rahman, Haji Mitho and Mst. Sahib Khatoon and referred them to Medical Officer Sakrand for examination. In the morning, he inspected the scene of offence on pointation of complainant Allahditto. He secured blood-stained earth from four spots in the courtyard of the house of complainant. He secured three empty cartridges of .12 bore of Shaheen Company from the place of incident which he put into sealed parcel. He prepared Mashirnama of the scene of offence. Since Mst. Bhirai had succumbed to the injuries in the hospital, this witness added section 302, P.P.C. In the case papers. On 13-1-1983 he arrested appellants Ismail, Nooro, Sattar and Ghani and prepared such Mashirnama. Appellant Ismail while m custody led to the recovery of Lathi from the hedge of his house. Appellant Nooro produced one Lathi from the Chhapar of his house. Appellant Ghani produced hatchet from the hedge of his house. On 14-1-1983 this witness arrested Leemo and Idrees and prepared such Mashirnama. Appellant Leemo produced his double barrel gun along with licence. The gun was sealed. Appellant Idrees produced licensed double barrel gun along with licence. That gun was also sealed. On 16-1-1983, this witness arrested appellant Jano alias Jan Muhammad, who while in custody produced one single barrel gun from the hedge of his house. This appellant could not produce his licence for his gun. Separate case under section 13(e) of the Arms Ordinance was registered by this witness against him. On 29-1-1983 statements under section 164, Cr.P.C. Of P.Ws. Khaman, Murad , Mitho and Rehman were recorded and challan was submitted. Prosecution in the trial Court examined ten witnesses in support of its case. Out of them five were examined as eye-witnesses. P.W.1, complainant Allahditto is not injured eye-witness. He is brother of husband of deceased Mst. Bhirai. He has deposed about the motive and facts of the incident as stated above. He left the injured persons in the care of others and himself went to police station where he filed F.I.R. He produced F.I.R. Exh. 15 in the Court. P.W. 2 is Mst. Basran, who is injured eye-witness. She is mother of complainant and deposed before the trial Court that seven appellants came to her house and opened attack. She sustained gunshot
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injuries at the hands of appellant Idrees and fell down and became unconscious. She regained senses in Nawabshah hospital on the 4th day of incident. P.W. 3 is Mst. Noor Khatoon who is injured eye-witness. She is sister of complainant and daughter of P.W. 2 Mst. Basran. She has deposed that all appellants came to her house duly armed and opened attack and in the result she sustained two gunshot wounds at the hands of appellant Leemo. After becoming injured she fell down and became unconscious. She regained senses in Nawabshah hospital. P.W. 4 is Haji Murad who is injured eye-witness. He is brother of complainant and husband of deceased Mst. Bhirai. In his deposition before the trial Court, he did not support the prosecution case and was declared hostile and cross examined. Last eye-witness examined is P.W. 6 Mst. Sahib Khatoon. She is wife of P.W. Khaman. She claims to be injured eye-witness but Doctor says that she was not injured. At this stage it would be pertinent to point out that in the trial Court A.P.P. Incharge of the case on behalf of prosecution filed statement in writing dated 11-8-1984 whereby he gave up eye-witnesses Haji Mitho and Rahman on the ground that they would not support the prosecution case as they had been won over by the accused as claimed by Complainant in application filed by him. Both Haji Mitho and Rahman were injured eye-witnesses. Another injured eye-witness not examined was Khaman who died due to natural death during the trial proceedings before his evidence could be recorded. Another important witness, who did not support prosecution case in the trial Court and was declared hostile is P.W. 5 Mashir Muhammad Ali. He had attested all the Mashirnamas prepared during the investigation of the case but in the Court stated that crime empties were not recovered from the spot and guns recovered from appellants were not sealed in his presence. P.W. 7 is Dr. Hassan Dost, who conducted post-mortem examination on the dead body of Mst. Bhirai on 8-1-1983. According to the Doctor she sustained eight lacerated wounds which were caused by firearm. She died due to shock and haemorrhage Injuries were individually and collectively sufficient to cause death. P.W. 8 is Dr. Hafeezur Rehman, who examined all injured persons including Mst. Bhirai before her death. He examined in all eight injured persons. P.W. 9 is S.H.O. Sarfraz Ahmad, who had investigated the case. He produced statement recorded by him under section 161, Cr.P.C. Exh. 49 of Mst. Bhirai before she died which was used as dying declaration. Prosecution examined P.W. 10 Elahi Bux, Tapedar, who prepared sketch of scene of offence on 13-8- 1985 on the pointation of complainant Allahditto. Prosecution also produced in the trial Court report of the Ballistic Expert Exh, 54 and report of Chemical Examiner Exh. 55. According to Exh. 54 three crime empties were found to have been fired one each from three guns sent to the Laboratory. According to Exh. 55 earth was found to be blood-stained. In the trial Court appellants in their statements under section 342, Cr.P.C. Denied prosecution allegations and proclaimed innocence and false implication due to enmity. In the defence affidavit sworn by Mashir Haji Muhammad Ali has been produced as Exh. 64 wherein he had stated on oath that police took from him his signatures on blank papers and told him that he was being made Mashir in this case. Further three defence witnesses have been examined. D.W.I, Abdullah Khan is Notary Public and deposed that affidavit Exh. 64 was sworn before him by Muhammad Ali who had produced his National Identity Card. Muhammad Ali was further identified by Abdul Wahid Mallah. D.W. 2 is Abdul Wahid who is Clerk to Mr. Abdul Fateh Memon, Advocate for the complainant in the trial Court in this case. He deposed that there was compromise between the parties. D.W. 3 is Pir Bux who is petition-writer and he drafted affidavit Exh. 64.
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I have heard at a considerable length Mr. Muhammad Hayat Junejo counsel for appellants and Mr. Muzaffar Hussain for A.G. For State. In this case in the trial Court reliance has been placed on various pieces of evidence. The most important piece of evidence is ocular in this case because there are injured eye-witnesses as well. Before I appraise ocular testimony, I would like to state here about the dispute between the parties and background of enmity. It is admitted in F.I.R. Exh. 15 by complainant that both parties are related to each other and there has been a dispute between them over a street matter and the complainant party had closed down the water drain and extended the hedge of their houses. On the other hand, the appellant party insisted that the hedge should be shifted back to its original place. According to the prosecution this dispute between the parties provided motive for commission of crime. Complainant has stated in his cross-examination before the trial Court that "Nali" which was disturbed due to shifting of hedge used to take water to the agricultural land of Ghulam Sarwar Laghari which was being cultivated by accused party on "harap". Complainant also admitted that there was mango garden and "falsa trees" which were being irrigated through that "Nali". The Nali was excavated about two years before the incident. Complainant also admitted in his cross-examination that Gamman is brother of appellant Leemo and so also Walio. Complainant denied suggestion that 8 or 10 years before the incident Gammon had sustained injuries and his brother Walio had lodged F.I.R., wherein P.W. Murad , Malook father of P.W. Mitho and his brother Bacho were challaned. Complainant further stated that he did not know if in that case Murad and Malook were convicted and Bacho was acquitted. Complainant also stated in the cross-examination that he knew Ghulam Sarwar Laghari and his brother. Complainant admitted in the cross-examination that there were two big Zamindars in the area namely Rasool Bux Laghari and Ghulam Sarwar Laghari and relations between them were strained. Some Khaskhelees were with Rasool Bux and others were with Ghulam Sarwar. Rasool Bux had filed case against appellant Leemo and his brother Walio, Idrees and Tharo. Complainant denied suggestion that he went to Rasool Bux Laghari before lodging the F.I.R. He admitted that one Haji Qasim Laghari had filed case against appellants Leemo and Idrees about injuries and it is correct that Haji Qasim Laghari is related to Rasool Bux Laghari. Injured eye-witness Haji Murad who did not support the prosecution case before trial Court and was declared hostile admitted enmity in his deposition between Ghulam Sarwar Laghari and Rasool Bux Laghari and the fact that Leemo and other appellants are Harees of Ghulam Sarwar Laghari. He also admitted that Rasool Bux Laghari had filed a criminal case against Leemo and his brother and they were acquitted. He also admitted that Rasool Bux Laghari had got filed criminal case against Ghulam Sarwar Laghari and his brother and one Khuda Bux Khaskheli. In that case they were acquitted. Leemo has filed case against Rasool Bux Laghari and his other relations. He admitted that Master Muhammad Aleem Laghari has filed case against Wallan Khaskheli who is related to the appellants. Now I take up ocular testimony. It is the case of the prosecution that incident took place at 4 p.m. On 7-1-1983 in the house of complainant Haji Allahditto. Seven appellants duly armed came to the house of complainant and attacked. In consequence whereof seven persons became injured from whom Mst. Bhirai succumbed to her injuries in the hospital. All the persons are related to the complainant because incident took place in the house of complainant. Since appellants are related to the complainant party and are residing in the same village as admitted in F.I.R. And because incident took place at 4 p.m. Then there should not be any difficulty for eye-witnesses to correctly identify the assailants and they are expected to say that as to who caused injuries to whom. Complainant has stated in F.I.R. That he was present in the house when the appellants came and he spoke to them about shifting of hedge and on his refusal to do so attack was made with guns and other weapons resulting into injuries caused to seven persons but somehow complainant managed to remain unhurt.
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It is surprising that how complainant was not hurt when he spoke face to face with assailants and then claimed to have seen whole incident from beginning to the end in which seven persons were injured including ladies who had nothing to do with the dispute between two parties. If there were really seven assailants, then one or more could have taken care of the complainant and could have given him some injuries particularly when he was present with whom talk was initiated in the prelude about shifting of hedge and complainant refused point blank upon which attack was commenced. Complainant could have been the first victim. Secondly, if claim of the complainant is correct that he managed to keep himself unhurt then he must have concealed himself in some such corner of the house that nobody could see him. In such case he would not be able to give graphic account of details of incident as to who caused injuries to whom particularly when there were seven assailants and seven injured persons. In the circumstances, claim of complainant that he has seen the incident is not free from doubt particularly when he is not injured. It would be correct to say that either complainant due to fear concealed himself in such a place that he could not be found by assailants and could not see the remaining part of the incident. Alternatively, it can be said that he saw the whole incident as is claimed by him then he had exposed himself to the attack by the assailants, who would not have spared him particularly when innocent ladies in the house were also wounded. After the incident was over complainant left the injured persons and himself repaired to the police station where he filed F.I.R. In F.I.R. Complainant has given details about how appellants were armed and who caused injuries to whom as under:-- "Leemo was armed with double barrel gun. Janoo and Idrees each was armed with single barrel gun. Ghani was armed with hatchet while Ismail, Sattar and Nooro were armed with Lathis. Leemo fired at Haji Murad who became injured in the face and neck whereupon Mst. Basran, Mst. Noor Khatoon, Mst. Bhirai, Mst. Sahib Khatoon, Gamman and Rahman came forward. Leemo fired at Mst. Noor Khatoon. Idrees fired at Mst. Basran and Haji Mitho. Janoo fired at Mst. Bhirai, Mst. Sahib Khatoon and Gamman. Sattar gave Lathi blow to Haji Mitho. Ghani gave hatchet blow to Rahman and Ismail gave Lathi blows to Haji Murad . Nooro gave Lathi blows to Gamman." In the evidence in the trial Court complainant repeated the details of attack as stated in F.I.R. But made one very conspicuous departure. First he stated that Janoo fired at Mst. Bhirai. Gamman and Sahib Khatoon and they all were hit by pellets. He modified this statement and said again that Mst. Sahib Khatoon was not hit by pellets but she had fallen down due to fear. Now I take up evidence of Mst. Basran who is injured eye-witness and is mother of complainant. She deposed before the trial Court that in the incident she and other P.Ws. Including deceased Mst. Bhirai sustained injuries. According to her at 4 p.m. Seven persons came armed with guns, hatchet and Lathis and caused injuries to Haji Murad , Khaman, herself, Mst. Noor Khatoon and Mst. Sahib Khatoon. She had sustained gunshot injuries. She further claimed that she has identified all the assailants who were present in the Court and also described their weapons. She also stated that she sustained gunshot injuries at the hands of Idrees on her back and after sustaining injuries, she fell down and became unconscious. She regained senses in Nawabshah hospital on the fourth day of incident. She was in the hospital for about 8 days. Now complainant has stated in F.I.R. That first Leemo fired at Haji Murad then Leemo at Noor Khatoon and Idrees fired at Mst. Basran and Haji Mitho. Thereafter, Janoo fired at Mst. Bhirai, Mst. Sahib Khatoon and Khaman and then Lathi and hatchet blows were given. Now if Mst. Basran is to be believed as per her own statement then she has not given the version of incident in the same way as has been given by the complainant. According to her examination-in-chief all assailants caused injuries to Haji Murad , Khaman, herself and other witnesses. She clarified this by saying that she sustained gunshot injuries at the hands of Idrees on her back and after sustaining those injuries she fell down and became unconscious. She
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does not say how injuries were caused to other persons and by whom. In the cross-examination she states that she was sitting on the cot when attack was launched and she sustained injuries in the courtyard of the house after getting up from the cot. No other eye-witness has spoken about the cot. She categorically stated in the cross-examination that after falling down injured she became unconscious and she did not witness the incident. Medical evidence shows that she sustained two gunshot injuries on scapular region, one on left side and the other one on right side. Both injuries were simple in nature. Exhs. 45 and 46 are her medical reports on the record which show that there was no fracture. This witness Mst. Basran is falsified by two other witnesses. S.H.O. Sarfraz Ahmad has stated in his evidence that after registration of F.I.R. He came to the scene of offence and examined injuries of the injured persons including Mst. Basran. He prepared Mashirnama of injuries Exh. 21 and recorded statements of injured witnesses under section 161, Cr. P.C. Including Mst. Basran and then referred her along with others to Medical Officer, Sakrand, for examination. He does not say that Mst. Basran was unconscious. Dr. Hafeezur Rehman has also falsified Mst. Basran because he examined her on 7-1-1983 at taluka hospital Sakrand. He does not say that she was unconscious. This witness has compromised her integrity and spoken lies. At the most she has implicated only Idrees in her evidence. Next injured eye-witness is Mst. Noor Khatoon who is sister of complainant and daughter of P.W. 2 Mst. Basran. In her evidence in the trial Court, she has stated that all assailants specifically named by her came armed to her house and she received two gunshot wounds at the hands of Leemo and she fell down injured and became unconscious. She regained her senses in Nawabshah hospital. She has further claimed to have remained unconscious for about 4 or 5 days. She has falsified her mother Mst. Basran by saying that at the relevant time she was sitting on the ground when accused persons came and her mother Mst. Basran was also sitting with her on the ground. She herself is falsified by S.H.O. Sarfraz Ahmad who has stated that when he went to the spot after registration of F.I.R. He recorded statement of Mst. Noor Khatoon along-with other injured persons and then sent them to hospital for treatment. He could not possibly record her statement if she was unconscious as claimed by her. She is also falsified by Dr. Hafeezur Rahman who examined her after the incident but did not find her unconscious. This witness also has compromised her integrity and has spoken lies like her mother. P.W. 4 Haji Murad is also injured eye-witness. He is brother of complainant and husband of deceased Mst. Bhirai. In the trial Court he did not support the prosecution case and was declared hostile. He stated in his evidence that at the time of incident complainant was not present and secondly, faces of assailants were muffled. No attempt was made by the prosecution to have 164, Cr. P.C. Statement of this witness brought on the record to be treated as substantial evidence. Lastly, in the list of eye-witnesses was examined P.W. 6 Mst. Sahib Khatoon. She is wife of injured P.W. Khaman. She claimed that she was injured during the incident. As per F.I.R. Appellant Janoo fired direct gunshot at Mst. Bhirai, Sahib Khatoon and Khamman which hit them and all fell down injured. In the Court in her evidence she stated that appellant Janoo fired at her husband Khaman and Mst. Bhirai. About herself she stated that she was not injured but fell down due to fear. At another place in her evidence she stated that she sustained Lathi injuries but could not say at whose hands. She became unconscious and regained senses in the hospital on the third day of incident. Police recorded her statement after she came back in senses. Parts of her statement stand completely falsified. Dr. Hafeezur Rehman, who examined her, has stated in the Court that he did not notice any injury on the person of Mst. Sahib Khatoon and he produced such certificate Exh. 39. Doctor also did not say that she was unconscious. S.H.O. Sarfraz Ahmad has deposed in the Court that after registration of F.I.R. When he visited the place of occurrence he recorded statement of Mst. Sahib Khatoon. Moreover, her statement under section 161, Cr.P.C. Is available in the record and shows that it was recorded on 7-1-1983 which is on the same day when incident took place. In
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the circumstances, her claim that she sustained injuries, became unconscious and her statement was recorded on the third day of incident when she came back to senses is patently false. I have discussed evidence of eye-witnesses above. I discard evidence of Haji Murad because he did not support prosecution and was declared hostile and his 164, Cr.P.C. Statement was not brought on the record. Now remain only four eye-witnesses out of whom two are injured and two are not. Now so far injured eye-witnesses are concerned, there is no dispute about the fact that since witnesses are injured during the incident, their presence at the spot at the relevant time cannot be doubted. Even then their evidence is to be subjected to proper scrutiny for the reason that there are several questions still open, which are to be answered. It is to be seen whether injured eye-witnesses really indentified assailants if incident took place in dark hours or when firing was made from some distance. It is to be…
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