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Petitioner: BUX ALI alias DODO VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Shamsuddin Abbasi Title: BUX ALI alias DODO vs The STATE Case No.: Criminal Appeal No,D-258 and Confirmation Case No,D-13 of 2012 Date of Judgment:2018-05-22 Reported As: 2019 YLR 324 Result: Sentence reduced
JUDGMENT
JUDGMENT SHAMSUDDIN ABBASI, J.---Appellant Bux Ali alias Dodo has assailed the judgment dated 25.08.2012, passed by learned Sessions Judge, Umerkot in Sessions Case No,99 of 2009 (Re: State v. Bux Ali alias Dodo and others) arising out of Crime No,24 of 2009 under section 302, P.P.C. of Police Station Boder Farm, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death as Tazir to be hanged by neck till death and to pay compensation of Rs.2,00,000/- to be paid to the legal heirs of deceased as provided under section 544-A, Cr.P.C. and in case of default in payment, the accused was ordered to further undergo R.I for one year. Learned trial court has also made a reference for confirmation of death sentence in compliance of Section 374, Cr.P.C. 2. The brief facts of the prosecution case are that on 3.10.2009 at 11:45 p.m. complainant Wali Muhammad appeared at Police Station Boder Farm and lodged complaint alleging therein that on 03.10.2009 he was coming towards his village. At about 07 p.m. Bux Ali armed with double barrel gun came on motorcycle behind him and stopped his motorcycle beside complainant and alighted from the motorcycle and caught him hold from his neck and used filthy language by laying him on ground and gave kicks and fists blows to complainant. He saved himself by requesting; on that accused went away. Complainant came to the Otaq of Lal Muhammad Nukhrich situated in village Sohrab Nukhrich where his son Sehatio, Mir Muhammad and Kanbhoo were present to whom he narrated the facts of the incident. It is further alleged that at about 07:30 p.m. Bux Ali Nukhrich came back on motorcycle being armed with gun and gave call from the street to complainant party. They came out in the street where accused Bux Ali Nukhrich was available on his motorcycle. Son of complainant namely Sehatio, Mir Hassan and Kanbhoo
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proceeded towards Bux Ali. Complainant also went behind them. In the meanwhile, it is alleged that accused Bux Ali made straight firing from his gun on Sehatio (son of complainant), which hit on his chest and he fell down on the ground while raising cries. Thereafter, Bux Ali Nukhrich drove away on his motorcycle. Sehatio succumbed to the injuries at the spot. Thereafter, complainant went to Police Station where he lodged FIR against accused being Crime No,24/2009 under section 302, P.P.C. 3. After registration of FIR police started investigation. Police could not arrest accused during investigation. After usual investigation challan was submitted showing the accused Bux Ali as absconder. Trial court after receiving challan declared the accused Bux Ali as proclaimed offender and case was ordered to be proceeded under section 512, Cr.P.C. Thereafter, the prosecution examined P.W-1 complainant Wali Muhammad at Ex.3, who produced FIR at Ex.4, P.W-2 Mir Hassan examined at Ex.5, P.W-3 Kanbhoo examined at Ex.6, P.W-4 Syed Javed Hussain Shah (Tapedar) examined at Ex.7, who produced Sketch of place of incident at Ex.7/A to 7/D and P.W-5 Dr. Chehno Mal (Medical Officer) examined at Ex.8, who produced letter of police, form of inspection of dead body and postmortem report at Exs.9 to 11. 4. During proceeding,- the accused Bux Ali was arrested on 03.03.2010 and learned trial court after receiving supplementary challan framed charge against accused at Ex.13, to which accused pleaded not guilty and claimed to be tried. Thereafter, learned advocate for accused had moved an application for reexamination of P.Ws at Ex.15 and on the same day learned trial court allowed the application and P.Ws who were earlier examined were re-called. Learned Counsel for accused Bux Ali had also moved an application under section 465, Cr.P.C. regarding medical examination and treatment of accused Ali Bux on the ground that accused was suffering from mental disorder. Learned trial court had referred the accused to Sir CJ Institute of Psychiatry Hyderabad for examination and report. Learned trial court had received report issued by Dr. Jamal Junejo Psychiatrist Incharge Forensic Psychiatry Ward Sir, C.J. Institute of Psychiatry Hyderabad dated 05.11.2010, which revealed that the accused was capable to understand the Court proceeding. But, we have examined the report issued by Dr. Jamil Junejo, which reveals that "during his stay in this Institute his medical history and mental status examination reveals that, he is suffering from MAJOR DEPERASSIVE DISORDER, his illness is treatmentable and manageable. At present he is capable to understand the proceedings of the Honourable Court, he may be shifted back from this Institute to Central Prison Hyderabad with following advised treatment. - Tab: Estar...............10 mg.............0+0+1 -Tab: Rivotril...............0.5 mg..............0+0+1" After receiving such report, learned trial court had examined P.W-1 Wali Muhammad at Ex.17, PW-2 Mir Hassan at Ex.18, P.W-3 Kanbhoo at Ex.19, P.W-4 Syed Javed Hussain at Ex.20, P.W-5 Dr. Chehno Mal at Ex.21, P.W-6 Vahiyoon at Ex.22, P.W-7 ASI Muhammad Ramzan at. Ex.25. Thereafter, prosecution had closed its side. 5. The prosecution had moved an application under section 540, Cr.P.C. for recalling P.Ws SIP Khuda Bux Mangrio (first I.O. of the case), SIP Muhammad. Azeem Alyani (second I.O. of the case) and P.C. Abdul Sattar (first mashir of arrest of accused Bux Ali alias Dodo. Learned trial court vide order dated 11.07.2011 had allowed said application and recalled the P.Ws SIP Khuda Bux, H.0 Abdul Sattar and SIP Muhammad Azeem. Thereafter, again prosecution had closed its side. 6. Trial court had recorded the statement of accused Bux Ali alias Dodo under section 342, Cr.P.C, in accused denied all the allegations and pleaded his innocence. However, he neither had examined himself on oath nor led any evidence in his defence. 7. After hearing the parties and assessment of the evidence, learned trial court had convicted and sentenced the accused Bux Ali alias Dodo as stated above. 8. Learned Counsel for Appellant contended that all the P.Ws were interested, set up and inimical to
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accused. He further contended that the incident had taken place in the dark hours of night but prosecution witnesses have not disclosed source of identification. He further contended that there was delay of 4 hours in lodging the FIR and no plausible explanation has been furnished for this inordinate delay. He further contended that it is a case of prosecution that in the FIR motive has been disclosed that due to exchange of harsh words and beating to complainant, accused had killed his son, whereas, during recording of evidence prosecution witnesses have deviated from this version and disclosed that accused had demanded bhatta from the complainant. He further contended that motive has not been established by the prosecution at trial. He contended that gun has been foisted upon the accused Bux Ali alias Dodo and separate case has been registered by police wherein the learned Magistrate had acquitted the accused Bux Ali from the charge of recovery of gun from his possession. He further contended that there was delay in dispatching the gun and prosecution has not established its case in respect of safe custody of recovered gun. Neither prosecution had produced any entry of Malkhana nor examined the person who deposited the gun to the office of Ballistic Expert/Chemical Examiner after one month of its recovery. He further contended that it is a case of prosecution that motive of accused was against the complainant and he met with the complainant and had beaten the complainant and at that time he was armed with gun why he did not use the gun when the complainant met with accused alone outside the village and there was no justification that accused after beating the complainant again went at the village of complainant party and killed the son of complainant with whom he had no motive For killing. He further contended that there is inconsistency between the ocular version and medical evidence as according to the postmortem report deceased had expired about 5/6 hours prior to postmortem and postmortem was started on 04.10.2009 at 03:00 a.m and as per the postmortem report time between death and postmortem was 6 to 8 hours. He further contended that pellets were recovered from the dead body but the same were not sent to Forensic Expert. He further contended that complainant was sitting in the Otaq of Lal Muhammad Nukhrich when accused came at the place of incident and called the complainant party but prosecution had not examined said Lal Muhammad Nukhrich. He further contended that the complainant stated that accused prior to the incident had beaten him by giving kicks and fists blows but the complainant had not lodged any FIR or NC report against the accused regarding such incident even he was not examined by doctor in order to ascertain the injuries sustained by him. He further contended that no empties were recovered from the place of incident. He further contended that statements under section 161, Cr.P.C. of P.Ws. were recording after a delay of 10 days. He also contended that no case property was produced during evidence. He further contended that one of the P.Ws had admitted this fact that at the time of incident it was darkness. He further contended that trial court has not considered the contradictions, discrepancies and lacunas in prosecution case and conviction awarded by the learned trial court is result of misreading or non-reading of evidence. In support of his contentions, learned Counsel for the Appellant has relied upon the cases of (1) Murad Ali and another v. The State (2011 PCr.LJ 1133), (2) Shahbaz v. The State (2015 M LD 1061), (3) Ulfat Husain v. The State (2018 SCM R 313), (4) Inayatullah and another v. The State and 2 others (2016 YLR 2020), (5) Ashiq Hussain v. The State and others (2014 YLR 2554), (6) Akmal v. The State and others (2017 YLR 1138), (7) Zafar v. The State and others (2018 SCM R 326), (8) Mehmood Ahmed and 3 others v. The State and another (1995 SCM R 127), (9) Sajjad Ahmed v. The State and 3 others (2015 PCr.LJ 585), (10) Muhammad Arif v. The State ( 2013 M LD 1743), (11) Rehmatullah v. Muhammad lqbal and others (2006 SCM R 1517), (12) Muhammad Saleem and another v. The State (2012 YLR 812), (13) Arshad Hussain alias Arshi v. The State (2015 M LD 431), (14) Abdul Hadi v. Wali Muhammad and 3 others (2000 YLR 509), (15) Ali Muhammad v. The State (1995 M LD 1407), (16) Chakar Jaffari and 2 others v. The State (2011 M LD 524), (17) Mudassar Hanif v. The State (2016 M LD 502) and (18) Nawaz and 4 others v. The State (2002 PCr.LJ 915).
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9. On the other hand, learned counsel for complainant contended that the appellant has been nominated in the FIR with specific role that he was armed with gun and fired at deceased. He further contended that the ocular testimony was corroborated by medical evidence as well as evidence of recovery of gun and circumstantial evidence. He further contended that it was sunset time and both parties are residing in the same vicinity, therefore, question of mistaken identity did not arise. He further contended that the accused was involved in several criminal cases and was previously convict in a murder case even the present accused had killed his own brother on the issue of Karap. He further contended that mere relationship between the P.Ws is no ground to discard their evidence. He next contended that all the P.Ws have fully supported the case of prosecution. The complainant has well explained the delay in lodging the FIR as distance between place of incident and Police Station is 18 kilometers, which is far away from the place of incident. He further contended that the accused did not join investigation and was declared proclaimed offender, which itself showed the intention of accused. He further contended that the incident had taken place in the street in front of houses of complainant party so they are natural eye-witnesses of the incident and finally he prayed for dismissal of appeal. 10. Learned Deputy Prosecutor General Sindh contended that the delay has been well explained and no question of source of identification arose as the incident had taken place at 07:30 p.m. which was sunset time in the month of March and both the parties are residing in same vicinity and well-known to each other. He further contended that there is single accused and single fire has been attributed to accused, which was supported by medical evidence and prosecution has established it's case on the point of circumstantial evidence as well as on the point of Chemical Examiner report. 11. However, D.P.G. admitted this fact that the prosecution had failed to prove motive against appellant at trial and further stated that motive shrouded in mystery, however, he supported the judgment passed by the learned trial court. 12. We have heard learned Counsel for the parties and scanned the prosecution evidence. We have examined the evidence of P.W-1 Wali Muhammad, who is complainant of the case and father of deceased Sehatio. He has stated that on the day of incident it was about 07:00 p.m. when he was coming from village Mureed Khan Nukhrich to his village Sohrab Nukhrich and when he reached at Katcha Rasti near his village, accused Bux Ali alias Dodo came behind him on motorcycle armed with double barrel gun and abused and wanted to kill him. Complainant requested him not to kill him, on this accused Ali Bux returned back. Thereafter, complainant reached at the Otaq of Lal Muhammad Nukhrich situated in his village where he met with his son Sehatio, brother in law Kanbhoo and Mir Hassan, son of his brother-in-law, to whom he narrated the facts of the incident. After about 20 minutes when they were sitting in the Otaq, accused Bux Ali came outside the Otaq and called him, on that son of complainant namely Sehatio, Kanbhoo and Mir Hassan went outside the Otaq and within their sight accused Bux Ali alias Dodo fired gunshot upon his son Sehatio which hit him and he died at the spot. On the fire shot son of complainant namely Iqbal, Vahiyoon and other villagers attracted at the scene of offence. He further stated that leaving the P.Ws over the dead body of the deceased, he went to P.S Boder Farm wherefrom he brought the police headed by ASI Muhammad Ramzan Khaskheli at the place of incident. Police inspected the scene of offence and secured blood stained earth and shifted the dead body to District Headquarter Hospital Umerkot for postmortem. Thereafter, again complainant went to Police Station Boder Farm where he lodged the FIR of the incident. He was cross-examined at length by the defence Counsel. During cross-examination he stated that accused gave him kicks and fists blows when he was on the way to his village near Katcha Rasti. He further stated in his cross-examination that motorcycle of the accused was CD-70 Company black coloured but he did not know its registration number. He further stated that while reaching at the Otaq of Lal Muhammad about 20 minutes were
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consumed. He further admitted the relation with P.Ws and stated that P.W. Kanbhoo has agricultural land while P.W. Mir Hassan is working as Primary School Teacher in Government Primary School. He further stated that at the time of incident it was sunset time and accused had fired two shots from his gun on his son deceased Sehatio. He further stated that SIP Khuda Bux Mangrio was accompanied with ASI Muhammad Ramzan while inspecting the scene of offence. He denied in his cross-examination that there was between his son Sehatio and Iqbal (son of complainant). He further denied that deceased Sehatio had illicit terms with the wife of his son Iqbal and Iqbal forced his son Sehatio to leave his house and reside at Umerkot. He further denied the suggestion that on the day of incident Sehatio returned to his village and Iqbal had committed his murder. He further denied that there was dispute in between Lal Muhammad and accused Bux Ali alias Dodo over the payment of money and at the instance of Lal Muhammad he had implicated accused Bux Ali alias Dodo in order to save Iqbal and got punishment to accused Bux Ali alias Dodo at the instance of Nasrullah and Lal Muhammad Nukhrich. 13. We have also examined the evidence of P.W-2 Mir Hassan who also admitted the relation with complainant. He further stated that on the day of incident he along with deceased Sehatio and P.W Kanbhoo was sitting in Otaq of Lal Muhammad situated in village Sohrab Nukhrich when complainant Wali Muhammad came at the Otaq and disclosed that while returning from village Mureed Nukhrich when he reached at Katcha Rasti of village Sohrab Nukhrich, accused Bux Ali alias Dodo had come on motorcycle and caused kicks and fists blows to him and on his request the accused allowed him to go to village. Soon after that he heard that a person made call to P.W Wali Muhammad outside of the Otaq, on this he along with Sehatio and P.W Kanbhoo came out from the Otaq and saw that accused Bux Ali alias Dodo fired from his gun at Sehatio which hit on his chest and resultantly he fell down on the ground and died on the spot. P.W Kanbhoo brought the cot at the place of occurrence and he kept the dead body of deceased on it. On hearing of fire arm shots, Iqbal, the son of complainant, and Vahiyoon, brother of complainant, came there. He further stated that they left lqbal and Vahiyoon over the dead body of deceased. He along with complainant and P.W Kanbhoo went to Police Station Boder Farm for lodging of the report wherefrom they brought SIP Khuda Bux Mangrio and ASI Muhammad Ramzan and other police officials at the scene of occurrence where police inspected the scene of occurrence and secured blood stand earth. Police inspected the dead body of the deceased. Thereafter, they shifted the dead body to District Headquarter Hospital Umerkot for postmortem. He further stated that it was 02:30 a.m. (04.10.2009) when they had brought the dead body of deceased to their village and buried the dead body. He further stated that police had recorded their statements on 14.10.2009. He was also cross-examined at length and he stated that accused came at the scene of offence on black coloured motorcycle. He further stated that soon after when they came out from the Otaq, accused Bux Ali alias Dodo fired gunshot upon Sehatio. 14. P.W-3 Kanbhoo has also admitted relation with complainant. He has deposed that it was 07:30 p.m. when he along with deceased Sehatio, complainant Wali Muhammad and P.W Mir Hassan were sitting in the Otaq of Lal Muhammad Nukhrich situated in village Sohrab Nukhrich, Taluka Samaro. At that time, P.W Wali Muhammad came at the Otaq and disclosed to them that when he was returning from village Mureed Nukhrich and reached at Katchi Rasti of village Sohrab Nukhrich where accused Bux Ali alias Dodo came on motorcycle and caused kicks and fists blows to him. After about 10 to 15 minutes accused Bux Ali alias Dodo made call to P.W Wali Muhammad from the street of his house, on that all of them four left the Otaq and went there and within their sight accused Bux Ali alias Dodo fired gunshot from his gun upon Sehatio which hit on his chest with the result he died at the spot. He further stated that he, complainant and Mir Hassan left P.Ws. Iqbal and Vahiyoon over the dead body of deceases Sehatio and went to Police Station Boder Farm for lodgment of FIR against accused wherefrom they brought police. Police inspected the scene of
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offence and secured blood stained earth. P.Ws lqbal and Vahiyoon took the dead body of the deceased to District Headquarter Hospital Umerkot for postmortem examination and on the same night at about 11:15 p.m. they brought the dead body of deceased Sehatio in their village and burried it. He further stated that after 10 days of incident his statement under section 161, Cr.P.C. was recorded by the police. 15. P.W-5 Dr. Chehno Mal deposed that on 04.10.2009 at about 02:30 a.m he received the dead body of deceased Sehatio through P.C. Ali Nawaz. Thereafter, he conducted postmortem and found following injuries:- "INJURIES:- (i) A bunch of fire arm injuries of entry below right clavicle directed towards left side of chest rupturing major blood vessels (2) Multiple fire arm injuries of entry on left side of chest wall and right shoulder joint directed towards left side (3) Multiple linear horizontal abrasion of fire arm on front of upper chest wall. Profuse bleeding all injuries. No wound of exit seen. Two pellets are taken out, rest of pellets lying inside body cavity. Weapons used most probably shot gun. Fired from far distance (more than 10 feet). HEAD:- Not opened. NECK:- Healthy. THORAX:- right and left Lungs ruptured full of blood, heard healthy, major blood vessels healthy, Ribs intact and healthy. ABDOMEN:- liver, spleen and both kidneys healthy. Small intestine contains semi digest food particles, large intestine contains faces. Urinary bladder empty. SPINE AND SPINAR CARD:- Intact and healthy." He had given final opinion, which is reproduced as under:- "OPINION:- From external as well asinternalpost inortem examination of deceased Seenhtio, I am of the opinion that the cause of death is cardio- respiratory fracture due to hemorrhage and shock which caused by fire arm injuries at chest and major blood vessels (Aorta blood vessels). Injury to major blood vessel is sufficient enough to cause death. Learned counsel for accused had put a questions to this witness which were replied as under:- "It is incorrect to suggest that these two articles were not the pellets but the same were bullets. It is incorrect to suggest that fires were made from the distance of 5 to 6 feet. It is incorrect to suggest that at the time of performing postmortem blackening and tattooing were found on the body of the deceased." In cross-examination integrity and efficiency of Medical Officer were not questioned. As such, we hold that deceased died due to firearm injury as described by Medical Officer. 16, We have also examined the evidence of P.W-6 Vahiyoon, who has acted as mashir of the case. He has stated that on 04.10.2009 SIO-ASI Muhammad Ramzan Kthaslcheli of Police Station Boder Farm made him and Iqbal (the son of complainant) to act as mashir of inspection of scene of offence i,e, uncultivated agricultural land of his paternal uncle Muhammad Uris on the pointation of complainant Wali Muhammad. He further stated that it was 12:30 midnight the said Police Officer inspected the place of incident as well as dead body of the deceased in his presence wherefrom police secured blood stained earth and sealed the same in a parcel. He further stated that after conducting postmortem the blood stained clothes were also secured by police and such memo was prepared. 17. We have also examined the evidence of P.W-7 ASI Muhammad Ramzan, who stated that on 03.10.2009 he was posted as ASI at Police Station Boder Farm and at 11:45 p.m he received FIR No,24/2009, under section 302, P.P.C. from SIP Khuda Bux Mangrio, S.H.O. Police Station Boder Farm lodged by complainant Wali Muhammad against accused Bux Ali alias Dodo for investigation. After receiving copy of FIR, he left Police Station to the place of occurrence and on 04.10.2009 at 12:30 a.m. he reached at the place of incident and prepared mashirnama of inspection of place of occurrence where he found wheel marks of motorcycle. He secured blood stained earth and
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sealed the same in the parcel. He prepared inspection form of dead body and inquest report in presence of mashirs. Thereafter, he shifted the dead body of the deceased to District Headquarter Hospital, Umerkot for postmortem through P.0 Ali Nawaz. He has also written a letter to Mukhtiarkar Revenue, Samaro to depute a Tapedar to inspect and prepare the sketch of place of occurrence.. He also received clothes of deceased through P.C. Ali Nawaz and sealed the same. He recorded the statements of P.Ws under section 161, Cr.P.C. He sent the blood stained earth and clothes of deceased to Chemical Examiner for examination and report on 27.10.2009. Thereafter, he had submitted challan of the case under section 512, Cr.P.C. before the competent court of law showing the accused as absconder. He has produced report of Chemical Examiner regarding blood stained earth and clothes of deceased, which was found positive by the Chemical Examiner. 18. We have also examined the evidence of P.W SIP Khuda Bux, who recorded the FIR of complainant. He produced roznamcha entry No,8 regarding departure from Police Station. He stated that the accused Bux Ali was arrested near…
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