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Petitioner: YAKOOB VS Respondent: THE STATEHonorable Justice Abdul HamidM. H. Junejo,Ali Raza
1969 P Cr
1969 P Cr. L J 1382
[Karachi]
Before Abdul Hamid, J
YAKOOB AND OTHERS‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 253 of 1965, decided on 26th July 1967.
Penal Code (XLV of 1860), S. 302‑ Murder‑Proof‑Prosecution alleging recovery at accused's instance of two incriminating articles stained with human blood--Witness of recovery however deposing that no blood‑stained articles so recovered‑Such witness not being declared hostile held, smashed prosecution's story of recovery and prosecution failed to bring home guilt to accused.
M. H. Junejo for Appellants.
Ali Raza for A. A.‑G. for the State.
Date of hearing : 26th July 1967.
JUDGMENT
Seven persons, whose names are noted in the margin*[Here in Continuation] (1) Yaqoob (2) Yamen, (3) Ali Murad, (4) Ghulam Nabi, (5) Waris, (6) Allahdino, and (7) Duro were tried under sections 147 and 302/149, P. P. C. Yaqoob, Duro and Allahdino were further tried under section 148, P. P. C. The allegation against them was that they on the 19th of August 1964, at about 8 p. m., while armed with lethal weapons formed an unlawful assembly, and in pursuance of the common object of that assembly entered into the house of Rabban in village Rahman Khoso, situate at a distance of fourteen miles from Police Station Tharari Mohabat, Taluka Khairpur Nathan Shah, District Dadu and committed the murder of Muhammad Saleh, aged 17. By his order, dated the 26th of July 1965, the learned Addl. Sessions Judge, Dadu, convicted Yaqoob, Ali Murad, Waris, Ghulam Nabi and Allahdino under section 147, P. P. C. and section 302/149, P. P. C. He sentenced each of them to six months' R. I. under the former offence and to transportation for life under the latter, the sentences being concurrent. In addition, Allahdino was further sentenced to R. I. for one year under section 148, P. P. C. Yameen and Duro were, however, acquitted of all charges. The appellants have preferred appeal against their convictions and sentences.
2. The facts of the prosecution case are short and may be stated as follows :
One Shah Nawaz was closely related to the appellants. Some three or four days prior to the present occurrence, the deceased Muhammad Saleh was belaboured by Shah Nawaz and others in village Khairpur Nathan Shah situate at a distance of half a mile from the wardat. This was resented by Muhammad Saleh deceased who is said to have killed Shah Nawaz on the alleged day of occurrence about 12 hours before the present murder. The appellants, in order to wreak vengeance on Muhammad Saleh for having killed their relation Shah Nawaz, repaired to the wardat at about 8 p.m. on the 19th of August 1964, and after dragging him from inside the but of Rabban, killed him by inflicting hatchet and dang injuries on him. At the relevant time, Ali Bakhsh, Mst. Hajran, Mst. Siani, Shadi and Amir Bakhsh P. Ws. were present. Nural P. W. 9 also was attracted to the spot on hearing alarm. All these P. Ws. saw the appellants and the acquitted accused belabouring Muhammad Saleh deceased with their respective weapons. Of these, Yaqoob, and Allahdino appellants and Yameen and Duro (acquitted accused) were armed with hatchets, the rest carried dangs. On reaching the wardat they raised the cry to the effect that they had come to kill Muhammad Saleh. The latter then tried to save himself from the clutches of the appellants by concealing himself in the but of his cousin Rabban. He was however dragged out and given blows by the appellants and the acquitted accused, resulting in his instantaneous death.
3. Leaving others at the wardat to guard the dead body Ali Bakhsh, brother of Muhammad Saleh deceased, reached Police Station Tharari Mohabat, situate at a distance of fourteen miles from the scene of the crime and lodged the report on the following morning at about 5 a.m. The entire details of the occurrence, as also the names of the appellants, were mentioned therein.
4. After scribing the report, Amjad Ali S. H. O. reached the spot and prepared the injury statement and the inquest report of Muhammad Saleh deceased and despatched the dead body to the mortuary for post‑mortem examination. All the appellants were arrested in due course.
5. During the investigation, the S. H. O. took into possession the following clothes of the appellants as they appeared to be blood‑stained :‑
(1) Silk loin‑cloth (Art. G) from Yaqoob.
(2) White shirt (Art. 1) from Allah Dino.
(3) Badami shirt (Art. K) from Waris.
(4) Sileti Shirt (Art. M) from Ghulam Nabi.
(5) Grey loin‑cloth (Art. O) from Ali Murad.
On interrogation, Waris appellant produced a hatchet. Similarly, Allahdino appellant produced a hatchet. The rest three, namely, Ghulam Nabi, Ali Murad and Yaqoob appellants produced one lathi each. Later the Serologist reported that one silk loin‑cloth was stained with human blood, while the origin of blood on the rest of the clothes could not be determined due to disintegration. He also reported that the origin of blood on one of the hatchets could not be determined due to disintegration while the other hatchet was stained with human blood. The Chemical Examiner however, did not find any blood on the lathis said to have been produced by Ghulam Nabi, Ali Murad and Yaqoob appellants.
6. The post‑mortem examination on the dead body of the deceased was conducted by Doctor Ghulam Qadir Medical Officer, Khairpur Nathan Shah, on the 20th of August 1964, at 4‑30 p.m. The doctor found eleven incised wounds thereon besides two contusions. In the opinion of the doctor, the death of the deceased was due to the two injuries found on his neck at the time of the post‑mortem examination. He further stated that all the incised wounds had been caused by sharp‑cutting weapon like hatchet, and the other two by a blunt weapon such as lathi.
7. The appellants pleaded not guilty to the charge. They further pleaded that they had been implicated in the case on account of enmity. None of them produced defence.
8. At the outset it may be stated that all the alleged eye‑witnesses, namely, Ali Bakhsh, Mst. Hajran, Mst. Siani, Shadi and Amir Bakhsh, are closely related to Muhammad Saleh deceased. Ali Bakhsh P. W. 3 is the brother of the deceased while Mst. Hajran P. W. 4 is the wife of his cousin Rabban. Mst. Siani P. W. 5 is the wife of Ahmad, brother of the deceased while Shadi P. W. is the son‑in‑law of the cousin of the deceased Amir Bakhsh P. W. 8 is the son of Rabban. Nural P. W. 9, who was attracted to the spot on hearing the alarm raised, and claims to be an eye‑witness, was disbelieved by the learned trial Judge on cogent grounds. The learned Addl. Sessions Judge also in paragraph 30 of his judgment (page 106 of the Paper Book) has made the following observations :‑
"As discussed above, I have already held that the eye‑witnesses are interested and can be said to be hostile to the accused, their evidence therefore needs corroboration."
In short, he convicted the appellants because he was of the opinion that the interested testimony of the alleged eye‑witnesses had been corroborated in material aspects.
9. The only point, therefore, for determination in this case is whether the evidence adduced by the prosecution has been supported by confirmatory circumstance.
As already mentioned, the origin of the blood found on the clothes said to have been recovered from the persons of Allahdino, Waris, Ghulam Nabi and Ali Murad could not be determined due to disintegration. Similarly, no blood was found on the lathis said to have been produced by Ghulam Nabi, Ali Murad and Yaqoob appellants. Allahdino and Waris are said to hive produced one hatchet each. According to the Serologist, the origin of blood on the hatchet produced by Allahdino could not be determined due to disintegration, whereas human blood was found on the hatchet recovered from Waris appellant.
10. Similarly, the silk loin‑cloth said to have been recovered at the instance of Yaqoob appellant was found stained with human blood vide report of the Serologist. Briefly stated, one hatchet said to have been recovered at the instance of Waris appellant and a loin‑cloth produced by Yaqoob appellant a ere found stained with human blood. It is, however, amusing to note that Bachal Shah P. W. 10, who is a mashir of the recovery of the clothes and hatchets from the appellants categorically stated at the trial that at the time of the alleged recovery, neither the hatchets nor the clothes produced by the appellants were blood‑stained. His statement at page 37 of the Paper Book runs as follows :‑
"I did not see any blood‑stains on any of the clothes. The facts that these clothes had stains of blood mentioned in the mashirnama is not correct. When the mashirnama v as read to us it was not read out to us that the clothes were with stains but we were read out that particular clothes have been secured from the accused."
He further made the following statement :‑
"Accused Waris produced a hatchet from the roof of his house. No blood was noticed on the hatchet any where."
This witness was not declared hostile and as such his statement remains unchallenged. The other witness of the mashirnamas, (Exhs. 22 and 23), namely, Ghulam Muhammad was not produced at the trial. In short, the only witness of the mashirnanas has entirely smashed the prosecution evidence to the effect that the bloodstained clothes or hatchets were recovered at the instance of any of the appellants. In these circumstances, it is preposterous to urge that the interested evidence of the alleged eye‑witnesses has been corroborated in material aspects.
11. For the reasons stated above, I am of the opinion that the prosecution has failed to bring home the guilt to the appellants. I accordingly accept their appeal and giving them benefit of doubt acquit them of the charges. The appellants shall be set at liberty forthwith provided always that they are not required to be detained in connection with any other case.
Appeal accepted.