Full Judgment Text & Judicial Ruling

1988 P Cr

1988 P Cr. L J 746

[Karachi]

Before Allahdino G. Memon, J

MUHAMMAD‑‑Appellant

versus

THE STATE‑‑Respondent

Criminal Appeal No. 66 of 1987, heard on 26th October, 1987.

(a) Penal Code (XLV of 1860)‑ ---

‑‑‑S. 302‑‑Long standing enmity existing between 'parties and counter‑cases filed against each other‑‑Complainant party failing to explain injuries received by accused and his brother‑‑Each party trying to minimise role played by it in incident‑‑Complainant and prosecution witnesses had not been relied upon in respect of co‑accused who were acquitted‑‑Ocular evidence requiring independent corroboration in case of accused was missing‑‑Accused was not known to prosecution‑witness and no identification test was held‑‑Mashir of recovery did not fully support recovery of hatchet‑‑Prosecution failing to produce Chemical Examiner's report .and the only logical conclusion that could be drawn from circumstances of case was that hatchet was not blood‑stained and thus was not reliable piece of evidence‑‑No evidence available to show what was immediate cause of attack and each party claiming to have been attacked by the other party‑‑On the one hand prosecution evidence was interested, inimical and unreliable while on the other hand it was not corroborated by any independent quarter‑‑Accused given benefit of doubt and acquitted in circumstances.

Ghulam Sikandar and another v. Mamrez Khan and others PLD 1985 SC 11; Tawaib Khan and another v. The State P L D 1979 S C 13; The State v. Mushtaq Ahmad P L D 1973 SC 418; Muhammad Shaft and others v. The State 1974 S C M R 289; Bakka v. The State 1977 S C M R 150; Khairu and another v. The State 1981 S C M R 1136; Ahmad etc. v. The State 1982 S C M R 1049; Aminullah v. The State P L D 1982 SC 429; Muhammad Nawaz v. The State 1984 S C M R 190; Khalid Mehmood alias Baboo v. The State 1985 P Cr. LJ 1040; Kak alias Abdul Razak v. The State P L D 1965 Kar. 31; Lashkari and 4 others v. The State P L D 1981 Kar. 1 and Ahmed Ali etc. v. The State 1974 P Cr. L J Note 169 at p. 104 rel.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑S. 302‑‑Evidence‑‑Counter‑cases‑‑Where counter‑cases were filed between parties and witnesses of one case were accused in the other case, their evidence, held, could not be relied upon unless corroborated in material particulars. [Evidence].

Saban Shah and another v. The State 1968 P Cr. L J 1637 rel. Hassan Jaffar for Appellant. A. K. Jatoi for the State. Imdad Hussain Kazi for the Complainant.

Date of hearing: 26th October, 1988.

ORDER

Appellant Muhammad son of Ali Muhammad was charged and tried alongwith Ahmad, Muhammad Hussain and Bilal under sections 302, 307, 34, P.P.C. before the learned IInd Additional Sessions Judge, Karachi for having committed murder of one Muhammad son of Allah Bachayo, and caused injuries to Ali Muhammad son of Muhammad and Jumman son of Muhammad, who has convicted the appellant under section 302, P.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.10,000 and in default thereof to suffer further R.I. for two years. The appellant was further directed to pay Rs.10,000 to the legal heirs of the deceased as envisaged by section 544‑A, Cr.P.C. as compensation and in default to suffer further R.I. for one year, while the co‑accused were acquitted vide judgment, dated 31st March, 1987.

The brief facts of the prosecution case are that on 2‑5‑1984 Ali Muhammad son of Muhammad Mari lodged a report at P.S. Gadap inter alia alleging therein, that he resides alongwith his parents at village Soomar‑Kundi, Malir Karachi. That there was enmity between them and Muhammad and Ahmad sons of Ali Muhammad over dispute of land. Vadera Ali Muhammad had tried to settle the dispute but Muhammad did not agree. Today morning at 6‑45 a.m. his father Muhammad came out of the house for doing labour and when he reached at a short distance from the house, Muhammad and Ahmad sons of Ali Muhammad, Muhammad Hussain son of Ahmad and Bilal son of Ahmad were standing there duly armed with hatchets, and started abusing his father just after seeing him. On commotion complainant, his brother Jumman too came out of the house. They saw that Muhammad son of Ali Muhammad gave hatchet blow on the head of father of the complainant, who fell down and died on the spot. Brother of the complainant tried to rescue him on which the above persons gave him injuries and the complainant was also injured. The people from the village came there on which the accused ran away. Thereafter the complainant went to the police station and lodged his report at 8‑15 a.m. The F.I.R. was recorded by A.S.I.P. Muhammad Younus of Gadap, P.S. The copy of F.I.R. was sent to Sikandar Hayat S.H.O. for investigation. On receipt of the copy of F.I.R., S.H.O. proceeded to the place of vardat and prepared such mashirnama in presence of mashirs Muhammad Hussain and Nabi Bux, the mashirnama has been produced as Exh. 23. He then prepared inquest report of the dead body, and the same has been produced as Exh. 24. He then referred the dead body for post‑mortem. He recorded statements of P.Ws. Mushtaq Ali, Muhammad Yakoob, Jumman, Nabi Bux and others. He arrested accused Muhammad, Ahmad and Muhammad Hussain and prepared such mashirnama, which has been produced as Exh. 25. Accused Bilal was not available and was absconding. Accused Muhammad son of Ali Ahmad pointed out a place in his Jhugi situated in village Soomar Gadyani from where a hatchet was recovered in presence of mashirs Muhammad Yakoob and Mushtaq Ali the mashirnama which was produced as Exh. 14 was the same. He had sent the hatchet and the blood‑stained clothes to the Chemical Analyser for report. The Chemical Analyser's report was not available in the police papers. On 8‑5‑1984 he arrested accused Bilal. On 15‑5‑1984 after due notice to the accused he got the statements of P.Ws. Jumman, Muhammad Yakoob, Pir Bux and Mehboob Ali recorded under section 164, Cr.P.C. After completing the investigation he challaned the accused on 15‑5‑1984. He has produced two hatchets as Articles A and B and blood‑stained clothes of the deceased comprising of Shirt, Shalwar and Cap as Articles C, D and E.

A formal charge was framed against the accused but they pleaded not guilty.

At the trial prosecution examined complainant Ali Muhammad P.W.1, he has produced the F.I.R. as Exh. 9‑A, eye‑witness Jumman P.W.2, eye‑witness Mehboob Ali P.W.3, Pir Bux, eye‑witness P.W.4, Mushtaq Ali an eye‑witness P.W.5. He also acted as mashir of recovery of hatchet from arrested of accused Muhammad, and the mashirnama has been produced by him as Exh. 14, A.S.I.P. Muhammad Younus .P.W.6, he had recorded the F.I.R. which has been produced as Exh. 9‑A, P.C. Zaffar Iqbal P.W.7, who had taken the F.I.R. from P.S. and delivered the copy to S.H.O. Sikandar Hayat. Dr. Khalil Ansari P.W.8, he has produced the post‑mortem report of deceased Muhammad as Exh. 18. He has also produced injuries certificates of injured Ali Muhammad as Exh. 19. Muhammad as Exh. 20, Ahmad son of Ali Muhammad as Exh. 21, S.H.O. Sikandar Hayat P.W.9, he had carried on the investigation. P.Ws Muhammad Yakoob, Muhammad Amin, Vabi Bux, Ali Muhammad, A.S.I. Muhammad Yousuf, A.S.I. Muhammad Bashir, Faryad Hussain and Chemical Examiner were given up by the prosecutor vide application dated 22‑2‑1987, which is Exh. 26.

After the close of prosecution case statements of the accused were recorded under section 342, Cr.P.C. in which they denied the allegations. Appellant Muhammad further stated that he was innocent and was injured by the deceased. Accused Ahmad also stated the same thing in his statement. Accused Muhammad Hussain has stated that he was innocent and was reading Holy Qur'an in the mosque of his locality where he came to know about the above incident. However, he declined to examine any witness in his defence. Accused Bilal has further stated that he had left for open sea in a launch for catching fish on 27‑4‑1984 and returned back to Karachi on 7‑5‑1984. He was innocent.

Accused Bilal and Muhammad examined themselves on oath. Accused Muhammad has produced photostat certified copy of the Direct Complaint filed by him as Exh. 36. Accused Ahmad also examined himself on oath. The accused also examined Ali Muhammad Rajai D.W.1, Mir Wazir Sultan D.W.2, Muhammad Hussain accused in their defence.

The learned trial Judge while relying upon the above evidence has convicted the present appellant while the co‑accused were acquitted. The present appeal is directed against the above judgment of conviction.

Complainant Ali Muhammad has deposed that deceased Muhammad was his father. He knew accused present in Court. He also knew Ahmad brother of accused Muhammad. They had a dispute with the accused over land. The disputed land bras in possession of Ali Muhammad resident of Gadap, and the same belongs to the village. About 18 months ago on 2nd May he was present in his house along with his brother and father. At about 6‑45 a.m. his father left the house for going for labour, when he went about 4‑5 paces away from the house, he heard cries. He and P.W. Jummo went out on the commotion and saw accused Muhammad and Ahmad sons of Ali Muhammad, Hussain son of Muhammad accused son of Ali Muhammad, gave hatchet blow‑to his father on his head who fell down and died. He and, and his brother Jummo intervened but they also received injuries at the hands of accused. Thereafter, all the accused ran away. Other villagers also came there. Thereafter, complainant and his brother Jummo, went to P.S. Gadap where complainant lodged his report. He has produced F.I.R. as Exh. 9‑A. He took the police to the place of vardat and showed the same to the police. He was referred to hospital. But in cross‑examination he has deposed that he received injury on his head. He was not referred for medical treatment.'

P.W. Jumman has deposed that deceased Muhammad was his father. Ali Muhammad complainant is his brother: He knows the accused present in Court. On 2‑5‑1984 at about 6‑45 a.m. he, his brother Ali Muhammad and their father Muhammad was present in the house. His father left the house for going for labour, when he went out they heard commotion and abuses. He and his brother Ali Muhammad went outside and saw Muhammad Ali, Muhammad, Bilal, Ahmad and Hussain armed with hatchets and were giving blows to his father. Accused Ali Muhammad and Muhammad had given blows to his father, on which he fell down. Again stated that accused Muhammad only had given hatchet blows to his father who fell down. He and his brother Ali Muhammad went and intervened on which accused Ahmad, Ali Muhammad, Hussain and Bilal caused them injuries. He received hatchet injuries on his head so also his brother. His father died at the spot. On commotion many other villagers came there namely, Mehmood, Ahmad, Wallu, Siddik and others, Thereafter, the accused ran away. Thereafter, his brother Ali Muhammad went to the police station and lodged his report. The motive behind this murder was dispute over land between them and accused Muhammad and Ali Muhammad. Police came at the place of incident and examined him. He was referred to hospital. P. W. Mehboob Ali has deposed that about 3 years ago he left his house,' at 6‑30 a.m. He saw that accused Muhammad, Ahmad, Bilal and Muhammad Hussain who were armed with hatchets and were giving blows to deceased Muhammad son of Allah. Bachayo in front of his house in open ground in Malir City. Many villagers were attracted and came at the vardat. Ali Muhammad and Jumma sons of deceased also came at the vardat. All the four accused inflicted hathcet blows to them and they were also injured. Thereafter, the accused ran away. Police came at the scene of offence. Injured were sent by the police to hospital. He was examined by a Magistrate under section 164, Cr.P.C. Accused had killed deceased Muhammad due to dispute over a plot.

P.W. Pir Bux has deposed that he resides in village Soomar Kandani which is situated in Malir. P.W. Mehboob Ali also resides in his village. On 2‑5‑1984 at about 6‑30 a.m. or 6‑45 a.m. he came out of his house as usual. He saw all the four accused present in Court duly armed with hatches and surrounded deceased Muhammad son of Allah Bachayo behind the house of deceased Muhammad in front of Octroi Post. The deceased was crying "save, save". Accused Muhammad gave hatchet blow on his head, and he fell down on the ground. His sons Ali and Jumma reached at the place of incident. The accused tried to attack P.W. Ali and Jumma also. He then went to his house and left for duty. The accused after killing deceased Muhammad ran away. Number of Mohallah people were attracted at the place of incident. Police also came there. Police had examined him. He was also examined under section 164, Cr.P.C. The accused had killed deceased Muhammad on account of dispute over immovable property.

P.W; Mushtaq Ali .has deposed that he is living in village Soomar Kandani since his childhood. He "did not know the accused present in Court. About two years ago he got up at about 6 a.m. or G‑30 a. m. for going to his duty after hearing commotion‑he went out of the house and saw that accused were surrounding, deceased Muhammad. He could not name the accused but by face he could say that the accused present in Court surrounded the deceased. Accused Muhammad had a hatchet in his hand. Witness points out towards accused Bilal and Muhammad Hussain and stated that they were armed with Dandas. He did not know what weapon fourth accused was holding. Accused Muhammad inflicted a hatchet blow on the head of deceased. P.Ws. Ali and Jumma tried to save deceased. Some one of the accused gave Danda: blows to them. All the villagers collected at the scene of offence. Muhammad died at the spot in front of his house, and the accused ran away. He could not give names of the villagers who had collected at the scene of offence. Injured P.Ws. Jumma and Ali Muhammad went to police station. Police came to the vardat at about 8 a.m. on the same day. Police arrested the accused and secured hatchet from accused Muhammad. Police prepared such mashirnama and the same‑has been produced by him as Exh. 14. He has further deposed that the signed in English, Exh. 14 does not bear his signature. The hatchet was bfkd‑stained. The hatchet shown to him in the Court was not that hatchet. He was then shown another hatchet and he stated that hatchet of accused Muhammad was like this hatchet. Only one hatchet was secured by police in his presence. The accused were not arrested in his presence. He has deposed in cross‑examination that he stayed at the place of occurrence upto 8 a.m. The police did not come to the vardat upto 8 a.m. Accused and complainant party had grappled at the time of occurrence. He could not say as to who caused injury and to whom. He denied a suggestion that he had not stated anything in' police statement regarding the part played by each accused. He denied to have stated before police that at 7 or 7‑15 a.m. he came to know that persons of his Bradari had a fight. He did not know whether accused Muhammad and Ahmad were injured. He denied a suggestion that police did not recover hatchet from accused Muhammad. He denied a suggestion that he was not present at the vardat and had not witnessed the incident.

A.S.I. Muhammad Younus P.W.6 has deposed that on 2‑5‑1984 he was posted as A.S.I. and duty officer at Police Station Gadap. At 8‑15 a.m. complainant came to the P.S. and lodged his report which he recorded under sections 302, 307, 34, P.P.C. Exh. 9‑A was the same and bears his signature. He referred complainant and his brother to G.P.M.C. Hospital as both of them had injuries. In cross‑examination he has deposed that whatever was stated by the complainant he incorporated the same in F.I.R. He did not mention in F.I.R. in verification clause the nature of injuries on complainant and his brother and his observation. He denied a suggestion that accused Ahmad and Muhammad had reached P.S. while he was writing F.I.R. He denied a suggestion that accused Ahmad and Muhammad had sustained injuries and they approached him to lodge report against complainant party. He did not refer these two accused for treatment to hospital because they were not arrested till night. He had sent the copy of F.I.R. through P.C. to I.O. Sikandar Hayat at his residence which was situated at Police Headquarters about 15 miles away from the P.S. Gadap. I.O. had proceeded to the vardat directly from his house.

P.C. Zaffar lqbal P.W. 7 has deposed that he was posted as police constable at P.S. Gadap; on 2‑5‑1984. A.S.I. Muhammad Younus registered the F.I.R. at 8‑15 a.m. and handed over the same to him for delivery to I.O., S.H.O. Sikandar Hayat at his 'residence. He delivered the F.I.R. to S.H.O. at 9‑30 a.m. He then returned to P.S. at about 11‑15 a.m. F.I.R. Exh. 9‑A was the same. In cross‑examination he has deposed that he had gone to the house of I.O. and returned from there on motor‑cycle. He had left the house of I.O. soon after delivery ‑of F.I.R. He did not know when Raja Sikandar Haya‑ S.H.O. left his house.

Khalil ansari Medical Officer P.W.8 has deposed that he is posted as doctor/ Assistant Police Surgeon in G.P.M.C. Hospital, Karachi. He knows Dr. Zulfiqar Ali Rajput who had performed the post‑mortem No. 150 of 1984. He was well‑conversant with the handwriting and signature of the above doctor. Nowadays the above doctor was on Ex‑Pakistan leave. The said doctor had carried on the post‑mortem on the dead body of deceased Muhammad and had found the following external injuries on his person: ‑‑

(1) Incised wound 9" x 1" x cavity deep from mid parietal region, to left cheek.

(2) Incised wound 4" x 1" cavity deep, right shoulder blade 3" below right shoulder.

He can definitely say that all the injuries were ante‑mortem. On internal examination, he found the following injuries: ‑‑

On removing scaple a fracture of left parietal and frontal bone seen. On opening skull brain cut into two half, brain congested, maningies congested. On opening chest there was fracture on right fourth, fifth and sixth ribs with cutting scapula. Both lungs were found pale. Heart both sides contains small quantity of blood. On opening abdomen stomach empty. Mucu‑scapale. Small and large intestine loaded with its contains. Liver, spleen, kidneys plae. None of the visceras were retained for chemical examiner's Opinion, Spinal cord not opened.

Opinion to the probable cause of death in his opinion, death of deceased occurred due to coma, haemorrhage and shock, leading to cardiorespiratory failure, resulting from acute head injury and injury to chest due to sharp and heavy substance, could be an axe. He has produced the post‑mortem report No. 150 of 1984 as Exh. 18. It is same, correct and bears the signature of Dr. Zulfiqar.

He also examined one Ali Muhammad son of Muhammad, aged about 25 years on 2‑5‑1985, at about 12‑20 p.m. The patient came with the history of assault with the police letter from S.H.O. Gadap. Mark of identification is mole on right side of chest. On examination he found the following injuries: ‑‑

Lacerated wound 2" x 1/4" x skin deep. Left parietal region. The nature of injury was simple and was caused by hard and blunt substance. The probable duration of injury was fresh. The Medical Legal No. is ZA‑2645. He has produced the same as Exh. 19.

On the same day at about 12‑25 p. m. he examined Muhammad son of Ali Muhammad aged 35 years, male with the police letter from Gadap P.W. with the history of assault. ,On examination he found the following injuries: ‑‑

Lacerated wound 1" x 1/4" x skin deep mid parietal region. The mark of identification of the patient smallpox marks on face. The injury was simple in nature and was caused by hard and blunt object. The probable duration of the injury was fresh. The Medico‑legal certificate bears No. 2A‑2646. He has produced the same as Exh. 20.

On the very same day he also examined Ahmad son of Ali Muhammad, aged 50 years, at about 12‑20 p.m. He came with the police letter of P.S. Gadap with the history of assault. On examination there was a lacerated wound 2" x 1/4" skin deep. Left parietal region. 2. Lacerated wound 1" x 1/4" mid frontal region. The injury was simple in nature and was caused by some hard and blunt object. Probable duration of injury was fresh. His mark of identification was mole on right chest. The certificate bears M.L. No. ZA‑2647. He has produced the same as Exh. 21. In cross‑examination he has admitted that the nature of injuries was fresh and was within 12 hours from the time of examination.

S.H.O. Sikandar Hayat P.W. 9 has deposed that on 2‑5‑1984 he was posted as S.H.O. Gadap. He received copy of F. I.R. No. 38 of 1984 for investigation. The F.I.R. was recorded by A.S.I. Muhammad Younus. He then proceeded to the place of vardat, and rest of the investigation carried on by him has been mentioned in the earlier part of this judgment.

We have heard Mr. Hassan Jaffar, learned counsel appearing for the appellant and Mr. Imdad Hussain Kazi for the complainant, Mr. A. K. Jatoi for the State and have also gone through the R & P of the case.

It has been contended by Mr. Hassan Jaffar, learned counsel appearing for the appellant that there were counter‑cases between the parties and the appellant had also gone to*the police station for lodging the report but the police did not record the same dishonestly, therefore, he had filed a direct complaint against Ali Muhammad, Jumma, Hashim and Urs under section 307/34, P.P.C. which is still pending. That the complainant party has failed to explain injuries on the person of appellant Muhammad and his brother Ahmad, which shows that they had no respect for truth. That there were serious contradictions in the evidence of the P.Ws. they were interested and inimical towards the appellant and his relations and, therefore, no reliance could be placed on their evidence. That three co‑accused having been acquitted, the appellant could not be convicted without having independent corroboration. That the recovery of blood‑stained hatchet could not be relied upon on the ground that the mashir of recovery did not support fully the prosecution case and that chemical report was not produced by the prosecution and, therefore, the presumption was against the prosecution. That the motive was a double‑edged weapon and it could not corroborate the prosecution case. That admittedly many villagers had come at the vardat but not a single independent person has been examined as a witness.

Mr. Imdad Hussain Kazi, learned counsel appearing for the complainant has contended that the ocular evidence is corroborated by motive and medical evidence. Even otherwise the ocular evidence was enough to uphold conviction of the appellant.

Mr. A.K. Jatoi, learned counsel appearing for the State has contended that the case was mishandled by the police and that the complainant party had suppressed the injuries caused to the accused. However, he was of the view that the prosecution had proved its case beyond all reasonable doubt against the appellant.

I have considered the contentions of the learned counsel. It has been stated by the complainant that there was dispute between them and the accused over land. In cross‑examination he has denied a suggestion that there was no dispute between them and the accused over land. He has admitted that lands belong to village and Government. He could not say whether the civil suit is pending between the accused and the Khaskhelis in respect of the land. He could not say whether the case was still pending before the Board of Revenue. Even the accused had stated in their statement under section 342, Cr.P.C. that the P.Ws. are related to the deceased and that held had old enmity with them. From the above discussion it is crystal clear that there was a long‑standing enmity between the parties.

From the medical evidence it is clear that on the side of complainant deceased Muhammad had received two incised injuries, complainant Ali Muhammad had received one lacerated injury which was opined to be simple in nature, while on the side of accused, accused Muhammad had received one lacerated injury on mid parietal region which was simple in nature, while his brother Ahmad had received two lacerated injuries, one on left parietal region and the other on mid frontal region. The injuries were simple in nature. From the above medical evidence it is clear that two persons were injured from each side. Unfortunately the complainant Ali Muhammad, P.W. Jumman, Mehboob Ali, Pir Bux and Mushtaq Ali have failed to explain the injuries received by the accused. The case of the appellant was that they had received injuries at the hands of the deceased and his sons and that they had a right of private defence, which was specifically suggested in cross‑examination. The accused have also produced the photostat…

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