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Petitioner: MITHO VS Respondent: THE STATEHonorable Justice H. T. RAYMONDA. K. Brohi,Murtaza Hussain
1968 P Cr
1968 P Cr. L J 821
[Karachi]
Before H. T. Raymond and Kadir Nawaz S. Awan, JJ
MITHO AND 10 OTHERS-Appellants
Versus
THE STATE-Respondent
Criminal Appeal No. 300 and Confirmation Case No. 65 of 1965, decided on 6th October 1966.
Evidence-Prosecution evidence disbelieved against one set of accused-Cannot be relied upon against another set unless corroborated by independent circumstances.
A. K. Brohi assisted by Abdul Hafeez Memon for Appellants.
Murtaza Hussain for A. A.-G. for the State.
Dates of hearing: 28th and 29th September 1966.
JUDGMENT
H. T. RAYMOND, J.-The eleven appellants along with ten others named in the Judgment of the trial Court were tried by the Additional Sessions Judge Nawabshah for the offences of murder and rioting. Some were also tried for an offence under section 13-D of the West Pakistan Arms Ordinance (XX of 1965). The eleven appellants were convicted of murder and rioting for which the first seven as named in the memo. of appeal were each sentenced to death and the remaining four to transportation for life and a fine of Rs. 5~0 or in default .R. I. for five months except Appellant No. 9 Tharo Khan who was ordered to pay a fine of Rs. 5,000 or in default to suffer R. I. for one year more. They were further sen tenced to R. I. for six months under section 148, P. P. C. and those charged under the Arms Ordinance were further sentenced to R. I. for 12 months. They have appealed from these convictions and sentences. This matter has also been referred to us for confirma tion of the seven death sentences. This judgment then will dispose of both the appeals as well as the murder references.
2. This case has a short background. Sonic two or three months before the incident in this case which occurred on 15-5-64, two of the deceased Itashim and Muhammad Bux had been acquitted by the Sessions Court, Nawabshah, where they had been tried with four others each of who had been sentenced to death for the murders of Imam Bux and Bahadur Naichs by caste and Gulab Mirbahar by caste. Appellant No. 9 Tharo Khan complainant in that case is the brother-in-law of Imam Bux and Bahadur whereas acquitted co-accused Muhammad Khan is a son of Bahadur. Seven other appellants are Naichs by caste and are related to Imam Bux and Bahadur (murdered). Appellants Nos. 4 and 6 Imam Bux and Sullaiman are Mirbahars by caste and are related to Gulab Mirbahar (murdered). The Appellant No. 4 Imam box and acquitted accused Haji Khan were witnesses for the prosecution in that case. The motive for the murder of Imam Bux, Bahadur and Gulab was that Bahadur was alleged to have been on terms of criminal intimacy with Mst. Sodhi wife of Imam Bux and daughter of Abdul Hadi a mashir in the present case.
3 Survey No. 97/B situated in Deli Dhingro Taluka Naushahro Feroze District Nawabshah was in dispute. A major portion of it belonged to Government and a share of 1-4 belonged to the brother of deceased Hashim. As Hashim, however, was in jail as an undertrial prisoner in the above-mentioned murder case, Juman and Rasul Bux, two of the deceased in this case, cultivated this survey number in partnership with Siddik son of Farzand Arain acquitted co-accused and hari of Sardar Muhammad Abdul Latif also an acquitted co-accused. This happened during the Rabi season of 1963-64. But, on his acquittal, Hashim deceased again started irrigating this survey number himself and for some four or five days before the incident case he along with deceased Muhammad Bux commenced plough ing the, land in this survey number. Sardar Muhammad Abdul Latif an acquitted co-accused also claimed an interest in this very survey number as an allottee and was cultivating it through his hari Siddik son of Farzand Arain an acquitted co-accused in this case.
4. It is the case for the prosecution that on the early morning of 15-5-64 deceased Hashim accompanied by deceased Muhammad Bux, Juman, Allahwarayo, Rasul Bux and com plainant Ibrahim were ploughing this very survey number with five pairs of bullocks. Deceased Hashim bad to go that same day to the office of the Mukhtiarkar of Naushahro Feroze and hence he had asked his brother-in-law complainant Ibrahim P. W. 2 to come and assist him in the ploughing that morning As they were working on the land they observed Siddik son of Farzand Arain, hari of Subedar Abdul Latif, watching them from a place towards the north of survey number 97-B and they then saw him proceed in the northern direction towards village Mangho where the accused party reside. A little later a tongs driven by appellant tharo Khan also arrived at this field to Survey No. 97-B bringing acquitted accused Latif' Sabedar, Muhammad Khan and Haji Khan as passengers in this tonga. The tongs was followed by a crowd of some 40-50 people coming from the direction of Mangho village and led as it were by the four passengers in the tonga they fell upon complainant Ibrahim and the five deceased who were then ploughing this field. From this crowd accused Siddik, Baharo, Haji Jurno, Imambux and Sullaiman were armed with guns, Siddik son of Hussaini with a pistol and Minhoon, Ghulam Muhammad. Mitho, Safdar and Ismail with hatchets while the rest had la/hts. They killed the five deceased Hashim, Muhammad Bux, Juman; Allahwarayo and Rasulbux. Com plainant lbrahim P. W. 2 saved himself by taking shelter in an adjoining watercourse. Hearing this commotion Saindad deceased accompanied by Fazul P. W. 3 and Ghulam Rasul P. W 4 came running up from their village on the eastern side but as they approached Saindad who was ahead of the other two was shot down by accused Jumeo and he fell dead at a place marked F in the sketch some 460 feet away from the place where the remaining five deceased were lying dead. His two companions Fazul and Ghulam Rasul P. Ws. 3 and 4 took shelter in the Dhoro or watercourse some 40-45 paces away from the scene of offence. Sabu P. W. 5 a first cousin of complainant Ibrahim also came up later and was given the names of the assailants by Ibrahim, Fazul and Ghulam Rasul. Complainant Ibrahim then went to the Chairman at Jalbani village and ors not finding' him there he proceeded to the Bhiria Police Outpost where also he drew a blank. Picking up a taxi at Bhiria he proceeded to Naushahro Feroze where at the bus stand he learnt that the police had already ' gone to the Vardat and hence he returned in the same taxi and about a mile away from the Vardat he met S. H. O. Mahmood r Ahmed P. W. 1 I near the Rohri Canal Bridge who there and then recorded the statement of complainant Ibrahim on a blank piece of paper and sent it to the Sad4ar Thana of Naushahro for being incorporated in the 154, Cr. P; C, Book.
5. This S. H. O. accompanied by complainant Ibrahim came to the Vardat only to discover there that A.S.I. Muhammad Tufail P. W. 10 with his stag had already arrived there and had taken up the investigation into this case. According to A. S. I. Muhammad Tufail he made a note at 9.30 a. m. that morning in the Station Diary, on receiving intimation from Constable Mahboob Husain, that a clash had taken place between the parties near Bhiria in Naich village in Deli Mangho and after making this entry he immediately set out for the spot accompanied by his police party. He found six persons lying dead in Deh Dhingro near village Mangho some two miles away from Bhiria. At about 11-30 a. m. S. H. O. Mahmood Ahmed Arain took over the investigation from him. He prepared a mashirnama of the Vardat Exh. 52 with Abdul Hadi and Mithal as mashirs. He recovered several empty cartridges, two live cartridges, one wooden support of a gun and other implements at the spot, which were duly entered in this mashirnama. He prepared inquest reports of the six dead bodies and sent them to Kandiaro for post-mortem examination. to the course of that afternoon, he also received a copy of the first report in the counter case lodged by Latif Subedar Exh. 45. Early, the following morning at about 6 a. m. he arrested ten of the accused each of whom volunteered to produce some incriminating article which was secured. under a mashirnama. By 10 a. m. that same morning six more accused were secured and they also produced incriminating articles which were also secured under mashirnamas. At 12 noon the remaining five accused had also been secured and incriminating articles were recovered from them also under mashirnamas. The two mashirs to all these mashirnamas of recoveries were Abdul Hadi and Mir Muhammad. He also sent the blood-stained articles to the Chemical Examiner and the crime empties together with the guns secured to the Ballistic Expert. On completing the investigation into this case he challaned the appellants in Court.
6. The case of the accused as disclosed in the counter F. I. R.. of acquitted co-accused Latif Subedar recorded at 12 noon that same day is that he was informed at 9 a. m. on that morning by his hari Siddik Arain that while he was ploughing Survey No. 97 with four bullocks that morning, the Kharhars consisting of the five deceased and others came there and insisted upon cultivating the same land as it belonged to them. On this a quarrel ensued between the parties. In Court, however, the statements of the appellants are to the effect that they took no part in the fight as alleged by the prosecution witnesses and that they have been involved to this case on account of enmity with them. They denied having produced any incriminating articles before the police, and in regard to the articles secured from the Vardat and recovered also from their possession they have stated that these articles were planted upon them.
7. It is not disputed in this case that tire six deceased died as a result of gunshot wounds and hatchet injuries received by them. Apart from the evidence of the three alleged eye-witnesses Ibrahim P. W. 2, Fazul P. W. 3 and Ghulam Rasul P. W. 4, there is on record the evidence of Dr. Noor Muhammad then Medical Officer Kandiaro who performed post-mortem examination on their dead bodies. He found a number of gunshot as well as incised wounds on these dead bodies and he has given it as his opinion that death was due to shock and haemorrhage caused by the discharge of a firearm and the use/ of a sharp-cutting weapon such as a hatchet.
8. The sole point of importance for determination in this appeal is whether there is sufficient evidence on record to establish the guilt of the appellants beyond all .reasonable doubt. Now, this evidence consists of the ocular testimony of the three alleged eye-witnesses, Ibrahim, Fazul and Ghulam Rasul P. Ws. 2, 3 and 4 corroborated by Sabu P. W. 5. Next, we have the recoveries made from the appellants and the injuries on the two appellants Mitho and Ismail. Finally, there is the question of motive,
9. The evidence of the three eye-witnesses has already been noticed when setting out the prosecution story in para. 3 above. In brief, it is to the effect that on the early morning of 15-5-64 while deceased Hashim, Muhammad Bux, Juman, Allahwarayo and Rasulbux were cultivating Hashim's field in Survey No. 97/8 in Deh Dhingro they were set upon by a mob that came from the direction of Mangho village and appeared to have been led by Tharo Khan who arrived there driving his conga in which were seated Latif Subedar, Muhammad Khan and Haji Khan. The culprits were all armed some having guns, some hatchets and the others lathis and Subedar Latif with a revolver. Latif and Tharo Khan instigated the others to kill the Kharhars because they had previously committed murders and now they were ploughing their field whereupon the mob attacked the five deceased with their weapons killing them on the spot. Deceased Saindad accompanied by P. Ws. 3 and 4 Fazul and Ghulam Rasul came running up from their village on the eastern side but as Saindad came at point F as shown in the sketch he was shot at whereupon his two companions took shelter in the adjoining Dhoro or watercourse. After committing six murders Tharo Khan declared that they had done enough and they all departed from the scene the four passengers returning in the conga and the others on foot towards the Mangho village.
10. Now, the evidence of these three eye-witnesses has mercilessly been criticised by Mr. A. K Brohi the learned Advocate appearing on behalf of the appellants. He has argued that complainant Ibrahim could never have been there at the time of the incident because had he been there he would never have escaped unscathed. He is a close relation to the deceased. Saindad, Allahwasayo, and Muhammad Bux deceased were his cousins, Juman and Rasul Bux deceased his nephews and deceased Hashim his brother-in-law. Thus, if the motive for this murder be the double motive as alleged by the prosecution complainant Ibrahim would never have been spared by the assailants. It was also contended by the learned defence advocate that there was no occasion for Ibrahim to be present at the ploughing on that morning. The deceased who were then ploughing were already five in number sufficient for the five pairs of bullocks, so that there was no necessity for the odd man out. Ibrahim has also stated differently in his F. 1. R. and in his evidence in Court as to whether Hashim called him that very morning or the previous day. Finally, the learned defence advocate submitted that from his place of hiding in the watercourse some 30 paces admittedly away where he had gone to conceal himself complainant Ibrahim could not have heard or seen what was going on at the scene of offence. The learned defence advocate has also criticised the evidence of the other two eye-witnesses Fazul and Ghulam Rasul who on seeing their leader Saindad being shot dead admit to have taken shelter in a Dhoro 40-45 paces away from the affray, from where they could have seen or heard nothing clearly.
11. We have applied our minds to these contentions of the learned defence Advocate and the replies thereto by the State counsel. It is plain that the eye-witnesses pare closely related to deceased Hashim and his party as well as to each other. The relationship of complainant Ibrahim to the deceased has already been set out above. Fazul states that Muhammad Bux and Allahwarayo were his brother-in-law and deceased Saindad his Marot or first cousin. Ghulam Rasul admits that Abdul Hadi art omnibus mashir in this case and co-accused in the counter case is his grandfather and Tahir co-accused in the counter case his own father. Apart from close relationship, these three eye-witnesses all admit having taken shelter in watercourses which as the sketch prepared by the Tapedar shows are removed from the place where the fighting occurred. Point H from where Ibrahim witnessed the incident is 80 feet and point F where Saindad was shot at and his two companions took shelter, 460 feet from the place where the deceased had fallen. From this distance and from their place of hiding in the depth of a watercourse some 2-3 feet deep it is difficult to believe that these eye-witnesses could hear and see clearly what was going on at the scene of offence. And yet-and this is the point that has puzzled us most-all the three of them from the crowd of some 50 assailants were able to identify the same 21 accused who were arrested and sent up for trial in this case. This is a coincidence that certainly calls for comment. The assailants were local people who must have been known to these witnesses and yet all three of them seem to have recognised the same 21 persons from the large crowd that came and participated in the fight. Equally strange, is it that although from among the assailants according to the prosecution story appellant Ismail received a grievous incised injury on his arm, yet his name does not figure in the E.I. R. nor do any of these three eye-witnesses refer to this injury sustained by him. And yet, the 1% 1. R. in this case is an elaborate document containing an account of the double motive that led to these murders, a detailed description of the events of that morning and of the part played by each accused in the affray, Indeed, it seemed to us to be wholly impossible for this lengthy and detailed statement to have been recorded as the complainant Ibrahim says within 10-15 minutes by S. H. O. Mahmood Ahmed on the bridge of the Rohri Canal where the complainant accidentally ran across him while on his return from Bhiria Town to the Vardat. We called for the original and we were surprised to find that it covered four pages in closely written manuscript complete with the heading showing the columns entitled date and time of report, name of complainant, particulars of offence, place of occurrence, as normally appear in the prescribed form for reports under section 154, Cr. P. C. Examining this original report we were convinced in our minds that it could never have been written as stated by the complainant and S. H. O. Mahmood Ahmed on the bridge of the Rohri Canal: but that it must have been written out later at the Vardat and after the S. H. O. and the complainant had reached there. It also appeared to us after a close study of the evidence of these three eye witnesses that whatever dispute occurred that moralng in connec tion with the ploughing of tile field in Survey No. 97,11, the whole incident has been exaggerated and elevated to lofty proportions involving more than fifty assailants. It strikes us as extremely odd that Siddik Arain hart of Subedar Abdul Latif on finding the deceased ploughing this field that morning and on carrying informa tion to Abdul Latif in Mangho Village was able to assemble a large crowd of more than fifty persons who came to the scene fully armed along with Sub0edar Latif and his co-passengers with Tharo Khan driving the tonga. Our fear that the number f assailants has been hopelessly exaggerated appears to be justified by the inclusion of the name of student Muhammad Khan among the accused. Muhammad Khan that morning w as attending his school in Bhiria Town and Ali Asghar D. W. 2 a teacher of the Bhiria High School has produced the Attendance Register showing Muhammad Khan present in school that morning. This evidence of alibi has been accepted and, we think, rightly by the trial Judge. Equally, the introduction of a double motive appears to us to be the result of a deliberate attempt to exaggerate the dispute and amplify the murder of participants in the affray. This double motive is like a double edges sword in that it cuts both ways: if the cause of the fight that morning was on account of the land then there is no reason for such a large croHd of fifty or more persons to come to the assistance of Subedar Latif when there were only five people ploughing his field: on the other hand, if the cause of the fight was previous litigation between Tharo Khan and Siddik and Muhammad Bux deceased, there is no reason why the non Naichs have been roped in. We observe that from amongst the eleven appllants eight are Naichs by caste two Mirbahars and one Memon. For all these reasons, then, we are not impressed by the evidence of the three alleged eye-witnesses. Similarly, the corroborative evidence of Sabu P. W. 5 a first cousin of com plainant Ibrahim carries the case for the prosecution no further. He is frank enough to admit that he had to cover a distance of two furlongs before reaching the scene so that he was not in a position to identify any of the assailants. It was his cousin Ibrahim who gave him the names of the assailants and the facts of the incident. He has also admitted that deceased Juman was his brother-in-law and that he has a dispute with the Naichs.
12. The next piece of evidence against the appellants consists of recoveries made from them on 16-5-64 the day after the incident. We have already mentioned in para. .5 above how early on the morning of 16-5-64 at 6 a. m. S. H. O. Mahmood Ahmad arrested ten of the accused in this case. No details have been vouchsafed as to how he came across these ten accused at that early hour of the morning, who helped him or who brought these accused to him. The mashirnama of their arrest Exh. 24 shows that it was written out at 6 a. m. on 16-5-64 and it merely gives the names of the ten accused with their parentage and caste adding that their persons were searched but nothing was found. According to the S. H. O. seven of these accused ore interrogation volunteered to produce some incriminating articles and these were all secured and mashirnama prepared between the four hours of 6 a. m. and 10 a.m. that day. Thus, Subedar Latif produced his revolver bearing No. 31561 along with 19 bullets secured under mashirnama Exh. 24 written at 6 a.m. Mitho accused produced a hatchet and a shirt both blood-stained under mashirrnama Exh. 25 written at 6-45 a. m. Muhammad Bux accused produced a hatchet secured under mashirnama Exh. is written at 7-15 a. m. Sarang accused produced one lathi about 4 feet in length secured under mashirnama Exh. 27 written at 7-45 a. m. Ghulam Muhammad accused produced a hatchet and a shirt both blood-stained, which were secured under mashirnamQ Exh. 28 written at 8-30 a. m. Tharo Khan accused produced his gun licence of his gun bearing No. 43859, according to the mashirnama, he had given to Sulleman Mirbahar for committing the offence ,in this case. It was secured under mashirnama Exh. 29 written at 9 a. m. Sulleman Mirbabar accused produced the gun itself and three 12 bore cartridges which were secured under mashirnama Exh. 30 written at 9-50 a. m. This concludes the recoveries from the first batch of ten accused arrested at 6 a.m. that morning. Mashirnama Exh. 31 written at 10 a.m. discloses that six more accused were arrested at that hour and gives their names, parentage and castes. It also adds that their personal search was taken but nothing was recovered. their clothes were examined but no blood marks detected. Four of them voluntarily produced incriminating articles: thus, Haji Jumo produced an unlicensed single barrel 12 bore gun secured under mashirnama Exh. 32 written at 12 noon: Muhammad Siddik produced a country made pistol under mashirnama Exh. 33 written at 1 p. m.: accused Muhammad Safar produced a blood-stained hatchet and shirt secured under mashirnama Exh. 34 written at 2 p. m.: accused Baharo produced an unlicensed single barrel gun of 16 bore minus its handle or support which was secured under mashirnama Exh. 35 written at 4-45 p.m. The remaining five accused were arrested between 11 a.m. and 12 noon that same day. Mashirnama Exh. 37 written at 11 a.m. on that day gives the names, percentage and caste of two more accused and mashirnama Exh. 36 written at 12 noon speaks of the arrest of Haji Khan accused. Mashirnama Exh. 38 written at 5 p. m. speaks of the arrest of Muhammad Bux accused and mashirnama Exh. 39 written at 6-30 p. m. speaks of the arrest of Minhoon accused. Accused Haji Khan under mashirnama Exh. 36 produced his licensed gun bearing No. 5441, Imam Bux under mashirnama Exh. 38 produced his licensed gun bearing No. 4612 along with fourteen cartridges and Minhoon under mashirnama Exh. 39 produced a blood-stained hatchet and shirt. It is of significance that mashirnama Exh. 32 and Exh. 36 appear to have been written at the same time i e. 12 noon whereas mashirnamas Exh. 31 and Exh. 37 were also written at the same time i.e. 11 a m. though at the top of mashirnama Exh. 31 there is an interpolation in that 11 a.m. has been changed to read 10 a .m. It is also worthy of note that the mashirs for all these recoveries and who have signed mashirnama Exhs. 24 to 39 are Abdul Hadi and Mir Muhammad. As has been mentioned above, Abdul Hadi is the father of Mst. Sodhi on account of whom the murders of Imam faux, Bahadur and Gulab were committed in the previous case: he is also an accused in the counter case. He was examined as mashir in the Committal Court but, very strangely, he was given up in the Sessions Court and in his place the other mashir Mir Muhammad has been examined. But, this Mir Muhammad too is not a person of any respect or position. He was compelled to admit in cross-examination that he is a dismissed clerk from the Civil Court having been involved in a case of misappropriation of Government dues. He has acted as a mashir in four or five previous cases of the same police station. He does not belong to Mangho village and that there are hundred houses in Mangho village with several zamindars residing in the adjoining villages. I=or two days he was the guest of the police and remained with them in the investigation of this case signing all the mashirnamas relating to all the recoveries made. To us, it is ,amazing that in a case of this importance involving six murders, the recoveries from the accused should be witnessed by two witnesses like Abdul Hadi and Mir Muhammad both of whom are discreditable and men on whose word no reliance can be placed. Mr. Brohi referred us to the case of Abdas Sainad v. The State (P L D…
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