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Petitioner: GHAZI AND 3 OTHERS VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Syed Sajjad Ali Shah Title: GHAZI AND 3 OTHERS vs THE STATE Case No.: Criminal Appeal No, 120 of 1977 Date of Judgment:1979-03-17 Reported As: 1980 P Cr. L J 30 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SAHA() Au SHAH, J.-Four appellants, namely Panjal, son of Dhigano, and his two sons Ghazi and Atta Muhammad and his son-in-law Ahmad, son of Usman, have been convicted for offence under section 302/34, P. P. C. And sentenced to life imprisonment and a fine of Rs, 1,000 each, in default of the payment of fine they are sentenced to further R.I. For 6 months. They have also been convicted on the second count under section 449 read with section 34, P.P.C. And sentenced to R.I. For 5 years and a fine of Rs, 500 each, in default of the payment of fine they have further been sentenced to R.I. For three months more. Half of the fine relating to the first count, if recovered, has been ordered to be paid to the heirs of deceased Noor Muhammad as compensation under section 544(A), Cr. P. C. The main sentences are to run concurrently as directed. Against their convictions and sentences in the impugned judgment dated 18th April, 1977 of the trial Court of 2nd Additional Sessions Judge, Khairpur, the appellants have filed this appeal. ' In nutshell the prosecution story is that the appellants, related Inter se as stated above, and the complainant party are Ulra by caste and reside in the same neighborhood -in Chak No, I, village Ulra Jagir Taluka, Khairpur. Appellant Panjal suspected his wife Mst. Tagi, mother of appellants Ghazi and Atta Muhammad and mother-in-law of appellant Ahmad to be on criminal intimacy with deceased Noot Muhammad. About 15 years before the incident this matter was agitated by appellant Panjal and was settled by complainant Ghulam All who is Sardar of Ulra community. Deceased Noor Muhammad took oath on Holy Qur'an that he was innocent and alleged relationship did not exist between him and Mst. Tagi. The faisla, thus, was that the allegation was unfounded. On the day of incident, i,e,, 3rd December, 1975, at about 11-00 a.m. Complainant Ghularn All and P. Ws. Atta Muhammad and Abdul Karim had come out from the otak of Ghulam
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Ali, where they had got together for talks on excavation of joint watercourse feeding their agricultural lands, saw the four appellants named above, armed with hatchets walking hurriedly towards otak of deceased Noor Muhammad and entering the same. Immediately thereafter these witnesses heard cries of Noor Muhammad and went there. They saw the appellants giving hatchet blows to Noor Muhammad near the water-pump, who was trying to ward off hatchet blows with his arms and retreating towards the door of the otak. The witnesses raised alarm but were threatened by the appellants not to come near as they were killing "karo". Noor Muhammad stepped inside the room in his otak and fell down. The appellants thereafter ran away with their blood-stained hatchets raising slogans that they had taken revenge of illicit relationship of Noor Muhammad with Mst. Tagi. P. W. Murid also saw the incident. After the departure of the appellants the witnesses went near and saw Noor Muhammad struggling between life and death and after a short while breathed his last. P. Ws. Gul Hassan and Abdur Rahim also came to the spot after the incident and claimed that they had seen the appellants running away with their hatchets. They were apprised of the incident by the eye-witnesses. Leaving Gul Hassan and other persons near the dead body, complainant Ghulam Ali, P. Ws. Atta Muhammad and Abdur Rahim went to Police Station Pir, Jo Goth, at a distance of 7 miles, where report was lodged on the same day at 3-00 p.m. After registration of F.I.R., S.H.O. Muhammad Younis recorded statements under section 161, Cr. P. C. Of Abdur Rahim and Atta Muhammad and then left for place of occurrence, which he inspected on the pointing out of complainant Ghulam Ali. He saw the dead body of Noor Muhammad lying there with incised injuries and prepared inquest report, after which he dispatched the dead body to the hospital for post-mortem examination. He recovered blood-stained earth and put into a sealed parcel and also prepared rnashirnama of vardat, At the spot he recorded police statements of P. Ws. Gul Hassan, Murid and Abdul Karim. On the following day he arrested appellants Ghazi and Ahmad in presence of mashirs Shah Murad and Muhammad Nawaz. Appellant Ghazi while in custody led to Bagarjee forest and from thick jungle of Bahan trees took out hatchet, shirt and loin- cloth, which were blood-stained and produced the same which were seized and made into sealed parcels. These recoveries were made at the instance of appellant Ghazi, while he was alone as appellant Ahmad was left behind at some distance near Bund at mile No, 5 in custody of Police. Later on appellant Ghazi was taken back to Bund at mile No, 5 and appellant Ahmad was brought alone, who led to the recovery of hatchet, shirt and chaddar' which were stained with blood, from bushes, which were seized and put into sealed parcels. On the same day at 7-00 p.m. Appellant. Panjal appeared at Police Station Pir Jo Goth where he was arrested by A. S. 1. Atta Muhammad. Appellant Panjal also produced his blood-stained hatchet which was recovered and put into a sealed parcel in presence of mashirs Iftikharuddin and Haji Lodho. Appellant Panjal was further wearing shirt, loin-cloth and chappals, which were stained with blood and were recovered and sealed into parcels. On 9th December, 1975, S.H.O. Muhammad Younis got recorded 164, Cr. P. C. Statements of P. Ws. Atta Muhammad, Abdur Rahim, Murid and Gul Hassan. On 10th December, 1975 appellant Atta Muhammad was produced by Ali Nawaz Khan before Muhammad Younis S.H.O., who arrested him. Appellant Atta Muhammad, while in custody, led to the recovery of his hatchet, banyan and underwear from the bushes in the bed of Dewani abandoned wah, which were seized and put into sealed parcels. After completion of the investigation challan was presented in the Court. ' Prosecution has examined 13 witnesses in support of its case. P. W. 4 Ghulam Ali complainant, P. W. 5 Atta Muhammad, P. W. 6 Murid and P. W. 7 Abdul Karim have been examined as eye-witnesses of the occurrence. P. W. 9 Gul Hassan is a witness of corroborative nature and saw the appellant running away after the incident, came to the spot and was informed of the facts of the incident by the eyewitnesses present there. P. W. 8 Shah Murad, P. W. 10 Lakh Mir and P. W. 13 Iftikharuddin are mashirs. P. W. 11 Muhammad Younis and P. W. 12 Atta Muhammad are the Police Officers who have
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taken part in the investigation of the case. Report of Chemical Examiner, Exh. 17-A on the record is to the effect that all the 14 articles contained in 9 parcels including hatchets and clothes were found to be stained with human blood. ' Before the trial Court in his statement under section 342, Cr. P. C. Appellant Panjal admitted having voluntarily surrendered at police station for arrest and produced blood-stained hatchet and clothes. He has further stated that he had seen his wife Mst. Tagi in compromising position with Noor Muhammad, hence he lost balance and on account of grave and sudden provocation gave hatchet blows to Noor Muhammad while Mst. Tagi succeeded in running away. He has further stated that the other appellants had not participated in the crime. Appellant Ghazi has stated before the trial Court that he was implicated in the case falsely due to the enmity of prosecution witnesses who are inter-related. It is stated by him that P. W. Sharif is brother of P. W. Atta Muhammad and is brother-in-law of complainant Ghulam Ali. Lutuf Ali, son of Ghulam Ali has married Mst. Lutuf Khatoon daughter of Muhammad Sharif. He has produced copy of nikahnama, Exh. 22-A. Appellant Ghazi has further stated that his mother Mst. Tagi was on illicit terms with Noor Muhammad, who was killed as 'karo' by his father appellant Panjal. The other two appellants namely Ahmad and Atta Muhammad have adopted the same defence as put forward by appellant Ghazi in his statement before the trial Court. ' The appellants have examined two defence witnesses. D. W. 1 Taj Muhammad, Nikah Registrar deposed before the trial Court that he performed nikah of Lutuf Ali, son of Ghulam Ali complainant with Mst. Lutuf Khatoon daughter of Muhammad Sharif. The said Sharif is brother of P. Ws. Atta Muhammad and Murid. Sharif's wife is sister of Ghulam Ali and daughter of Wadero Osman. He also produced nikahnama. D. W. 2 is Mst. Tagi wife of appellant Panjal. She deposed before the trial Court that she was friendly with Noor Muhammad since her childhood and after maturity both were on illicit terms. On the day of incident she was found in objectionable position with deceased Noor Muhammad in his otak, by her husband Panjal, who killed Noor Muhammad with hatchet blows on account of `Ghairat' while she succeeded in running away. No other appellant was with Penal. At the time of incident she ran away to the house of Wadero All Nawaz for protection who produced her before Police. ' We have heard the arguments of the learned counsel appearing for each side and in the light of these arguments and submissions, we have carefully examined the record of the case. Prosecution case consists of ocular testimony of four witnesses, corroborative evidence of one witness, circumstantial evidence of recovery of blood-stained hatchet and clothes, recovered from the appellants, medical evidence and evidence of motive. Out of four eye-witnesses examined in the Court, three, namely P. W. 4 Ghulam Ali complainant, P. W. 5 Atta Muhammad and P. W. 6 Murid are related inter se. P. W. 7 Abdul Karim who is also an eye-witness of the incident is independent and not related to the complainant party. This witness is Bhutto by caste while both parties to the case are Ulras by caste. P. W. 7 Abdul Karim also lives in the same village and his house is not far from the place of occurrence. His house is in fact close to the otak of Noor Muhammad deceased on the western side and at a distance of about 20-25 paces from the house of Gul Hassan who is son of deceased. Deceased Noor Muhammad was uncle of complainant Ghulam Ali. Since three eye- witnesses, as stated above, are interrelated, their evidence is to be scrutinized with great care and caution. Incident in this case took place at 11-00 a.m. And the F.I.R. Was registered at the police station at 3-00 p.m. On the same day when the distance between the Police station and the spot is 7 miles. There appears to be no ostensible delay in the filing of F.I.R. The names of the eye- witnesses and the two corroborating witnesses, namely Gul Hassan and Abdul Rahim are mentioned in F.I.R. In fact eye-witness Atta Muhammad and corroborating witness Abdul Rahim accompanied complainant Ghulam Ali to the Police station where F.I.R. Was lodged. This fact is admitted by S.H.O. Muhammad Younis in his evidence before the trial Court, who recorded police
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statements of these two witnesses at the Police station immediately after the registration of F.I.R. The Investigating Officer when came to the place of occurrence, found P. Ws. Gul Hassan, Murid and Abdul Karim waiting near the dead body and recorded their 161, Cr. P. C. Statements. Out of these witnesses P. Ws. Murid and Abdul Karim are the eye-witnesses. It is the case of prosecution that complainant Ghulam All was in his otak with P. Ws. Atta Muhammad and Abdul Karim talking about excavation of their joint watercourse and when they came out from the otak they saw the appellants going armed' with hatchets to the otak of deceased. Both P. Ws. Atta Muhammad and Abdul Karim have admitted in their evidence before the trial Court and even at earlier stages that at the relevant time they were present in the otak of complainant. Ghulam Ali for the purposes mentioned above. Complainant has stated in his deposition before the trial Court that he had called these two witnesses for the talks. Some discrepancies were pointed out in the evidence of P. Ws. Atta Muhammad and Abdul Karim to the effect that it was not clear as to who of them went first to the otak of the complainant or what was the name of servant of complainant who went to call them, P. W. 5 Atta Muhammad was confronted with his statement under section 164, Cr., P. C., wherein be had stated that he had gone to the otak of Ghulam Ali of his own accord and in his presence complainant Ghulam Ali sent a man to call Abdul Karim. P. W. 7 Abdul Karim had deposed before the trial Court that he was called by Ghulam Ali through his servant, whose name he did not remember and he and P. W. Atta Muhammad and Ghulam Ali's servant went together to the otak of Ghulam Ali. These discrepancies are insignificant because they relate to a very remote aspect of the matter and the fact cannot be lost sight of that the evidence of these witnesses was being recorded after nearly one year of the incident. The witnesses cannot be expected to remember meticulously these minute details which are hardly relevant to the main purpose. All these three witnesses are emphatically consistent on the fact that they were there for the canal. There is also consensus that both P. W. Atta Muhammad and Abdul Karim were called by complainant Ghulam Ali at his otak. It would not be out of place to mention here that it was argued on behalf of appellants that relations between complainant Ghulam Ali and P. W. Abdul Karim were not cordial, hence presence of Abdul Karim in the otak of complainant Ghulam Ali is very unlikely. Complainant Ghulam Ali has ad.. Mitted in his deposition before the trial Court that P. W. Abdul Karim was not friendly with him and they were not on good terms because of differences between them over the landed property. It was also stated by this witness that there was old dispute of Bhuttos and Ulras over lands. This admission on the part of complainant Ghulam Ali is not per se sufficient to belie a meeting between them to discuss details of excavation of canal which irrigated agricultural lands of these three witnesses. It was in the interest of all these three witnesses to have an amicable settlement about the excavation of canal which jointly fed water to the lands of these witnesses. All these three witnesses admit to be present in the otak of complainant Ghulam Ali for such talks. No such question was put to P. W. Abdul Karim regarding differences between him and complainant over the lands or for that matter any other dispute between them, when he was examined before the trial Court. ' On the contrary, surprisingly, P. W. Abdul Karim was cross-examined before the trial Court on the line that he was friendly with complainantGhulam Ali and a suggestion was made to him, which he denied, to theeffect that he took lease of lands jointly with Ghulam Ali. In these circumstances we feel that all these three witnesses, namely complainant Ghulam Ali, Atta Muhammad and Abdul Karim were present in the otak of complainant Ghulam Ali and their presence there at the time of incident is well accounted for. ' The incident took place in the otak of deceased which was about 82 feet away from the otak of the complainant as stated in mashirnama of vardat, Exh. 13-A. At this stage it would be pertinent to point out that as mostly found now a days, the sketch in this case also was prepared after a delay of seven months and as deposed by P. W. 3 Ghulam Nabi taper, vardat was pointed out to him by
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one Arbab constable and mashirs Muhammad Nawaz and Shah Murad. From further scrutiny it is found that Shah Murad has attested mashirnama of vardat but Muhammad Nawaz is not even a mashir of vardat and has attested mashirnama of recovery of blood-stained clothes and hatchet from appellant Ghazi, which is Exh. 13-D on the record. It is obvious that the Investigating Agency does not attach any significance to the drawing up of sketch of vardat, which must be prepared during the investigation and on the pointing out of one or more eye-witnesses of the incident and also must cover all the material particulars of the incident such as the place where the dead body was lying, the places where the accused persons were standing and the places where the witnesses were standing from where they saw the incident and also the full surroundings of the place of occurrence with proper measurements so that the Court should get clear view of the place of occurrence and can decide whether the eye-witnesses could see the incident without any obstacles. The con-conduct of Investigating Agency in not following the practice of preparing the sketch of vardat fulfilling the requirements mentioned above is reprehensible. In the instant case the sketch of vardat which is prepared on 17th June, 1976, when the incident took place on 3rd December, 1975, mentions only three points A, B and C explaining point No, A to be the place where dead body was lying. Point No, B is another door in the same Hall and point No, C denotes third door of the same room. The mentioning of these doors is not relevant to the point hence the sketch is absolutely of no help or assistance to the Court. This reflects the perfunctory manner in which the sketches are prepared belatedly when the evidence in the case is about to be recorded. This practice is deprecated and the concerned authorities should make note of it to see that such lapses are not allowed in future to be repeated and the sketches are prepared during the investigation in accordance with the requirements of law. ' Coming back to the description of the place of occurrence, as mentioned in mashirnama of vardat Exh. 13-A, the otak of complainant is at 82 feet from the otak of deceased. It is further stated in the mashirnama of vardat that the otak of deceased is surrounded by a mud-wall and inside that courtyard there is main building consisting of rooms. The eye-witnesses have consistently stated that after the appellants entered the otak of deceased, meaning thereby courtyard of otak, they heard cries of "murder ! Murder !" and went therein to see appellants attacking deceased with hatchet blows near the hand-pump and the deceased was trying to protect himself with his hands and was retreating towards the otak and after getting into the otak he fell down injured. These facts are substantiated by the mashirnama of vardat. Blood was found near the hand-pump which was at a distance of 11 paces from the door of main otak. Blood was also found on the door of the otak and dead body was found inside the main otak at a short distance from the door. There is trail of blood between the water pump and the door of the otak. Furthermore one embroidered shoe of the deceased was found lying stained with blood near the hand. Pump. The other embroidered shoe was on the right foot of the deceased. Complainant has deposed before the trial Court that deceased at the time was filling water in the bucket. Mashirnama of vardat also states that there was an iron bucket lying under the hand pump. It was argued on behalf of the appellants that P.W. Murid had first stated that he saw the incident from the upper story of his house and then subsequently he said that he saw the incident from the upper story of the otak of the deceased. On appraisal we have found that there was no satisfactory explanation as to from where this witness saw the incident. Before the trial Court in his examination-in-chief he stated that on hearing the cries he went to the upper storey of his house and from there he went to the upper story of the otak of the deceased and from there he saw the incident. ' In his Incised wound 6" x 4" x 3" extending from back of right ear upto squamous part of occipital bone passing through scalp and cutting the occipital bone and right temporal bone. ' Incised wound 6" x 4" x 3" extending from back of right ear up to squamous part of occipital bone passing through scalp and cutting the occipital bone and right temporal bone.
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' cross-examination he has admitted that the distance from the door of his house to the otak of the deceased would be 60 to 70 paces. He has also stated that the courtyard of the otak of Noor Muhammad could be seen from the upper story of his house but the place where deceased Noor Muhammad fell down could not be seen from the upper story of his house. He has failed to explain how from the upper story of his house he went over to the upper story of the otak of deceased. He has not stated that both these places were inter-connected. He had not stated in his 164, Cr. P. C. Statement that he had gone to the upper story of the otak of Noor Muhammad from where he saw the incident. In the mashirnama of vardat it is stated that towards north, on the northeastern corner there are joint houses of Murid Ulro and others which are on the back of otak of deceased. P. W. 3 Ghulam Ali tapedar has stated in his cross-examination before the trial Court that on the north of the otak of deceased there is house of Murid Ulro but one cannot see the place of occurrence from the upper story of the house of Murid. Neither the sketch nor the mashirnama of vardat mentions the fact that there was any upper story on the otak of deceased Noor Muhammad P. W. 7 Abdul Karim while deposing before the trial Court was confronted with his statement under section 164, Cr. P. C. Wherein he had not stated that P. W. Murid also witnessed the incident. In the absence of any satisfactory and convincing explanation in the context stated above we view with doubt the assertion of P. W. Murid that he saw the incident and as a matter of abundant caution we do not propose, to rely upon his evidence. The evidence of the other two eye-witnesses, namely Ghulam Ali and Atta Muhammad who are related inter se and related to the deceased is further fully supported by the evidence of P. W. 7 Abdul. Karim who is not related to the complainant party and is independent. There is nothing on the record nor the cross-examination of P. W. Abdul Karim to suggest that he is not the eye-witness of the incident or is deposing falsely in this case. This witness does not have any animus or against the appellants to falsely implicate them nor any such enmity or motivation is alleged against him or is suggested to him in his cross-examination before the trial Court. ' The incident took place in broad daylight and the appellants were already known to the eye- witnessess, hence there is no question of mistaken identity. All the four appellants are specifically named in F. I. R. Which was lodged promptly after the occurrence without any delay. The ocular account of the incident is further fully supported by the medical evidence. According to the post- mortem report and the evidence of the doctor the deceased sustained as many as 12 incised wounds on different parts of the body. These injuries are stated by the doctor to have been caused by sharp-edged weapon such as hatchet. Infliction of 12 incised wounds is very much .Commensurate with participation of four assailants in the attack with hatchets. The injuries of the deceased are described as under:- (3) Incised wound 2" x 1" x i" on right temporal region. (4) Incised wound 2' x 1' on the posterior part of parietal bone of scalp. (5) Incised wound 3' x 1 a x 1" extending from right eye brow up to Pinna of right ear. (6) Incised wound 4" x 3" x extending from lateral part of right shoulder up to lower one third of upper arm cutting the lateral muscle of shoulder. (7) Incised wound 3' x 2" x on back of shoulder behind scapular region cutting the muscles spine of sulfa. (8) Incised wound 2" x i" x 1" on back of left shoulder. (9) Incised wound 2' x 1" x I" on interior surface of left thigh above left knee joint. (10) Incised wound 2' x 1" x I" on middle of right forearm. (11) Incised wound 2" x 1" x 1" on palmar aspects of left hand cutting metacarpal bone of thumb of left hand. (12) Incised wound 1i" x J' xr on palmar aspects of left wrist joint.
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' The doctor has also opined that death was due to shock and hemorrhage consequent upon injuries mentioned above and injury No, 1 was sufficient in the ordinary course of nature to cause death. The doctor has also stated that food found in the stomach of the deceased was semi- digested and the deceased had taken his food about 3 or 4 hours before the incident. This fact also confirms that the incident took place at 11 a. In. As claimed by the eye-witnesses. The doctor performed the post-mortem examination on the following day of the incident at 7 a. m. And stated that the time that elapsed between the death and post-mortem examination was about 20 hours. This finding of the doctor also confirms the fact that the incident took place at 11 a. m. As stated by the eye-witnesses. ' There is also corroborative…
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