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Petitioner: Muhammad Younis and another VS Respondent: Muhammad Ishaque
Court Name: Sindh High Court Judge(s): Zulfiqar Ali Sangi Title: Muhammad Younis and another vs Muhammad Ishaque Case No.: Criminal Jail Appeal No. S-15 of 2013 Date of Judgment:2021-12-03 Reported As: 2021 SHC 1162 Result: Appeal dismissed
JUDGMENT
JUDGMENT ZULFIQAR ALI SANGI, J:- Through this appeal, appellants Muhammad Younis and Khalid Hussain both sons of Abdul Malik Brohi, have challenged the Judgment dated 27.02.2013, passed by learned Additional Sessions Judge, Naushahro Feroze, in Sessions Case No.195/2008re-" The State v. Muhammad Younis and others ", arising out of Crime No.131/2008, registered at police station Padidan, under Section 302, 324, 337-A(i), 337-A(ii), 337-A(iii), 337-F(i), 337-L(ii) 504, 147 and 148 PPC, whereby both the appellants were convicted and sentenced as under: i. for offence u/s 302 (b) r/w section 34 PPC, life imprisonment with compensatio n of Rs.50,000/- to be paid by each accused to legal heirs of deceased Ali Bux and in default S.I for six months more, ii. for offence u/s 324 PPC, imprisonment for 5 years and fine of Rs.25,000/- to be paid by each accused to victims/injured Faiz Rehman, Amir Bux and Moula Bux and in default S.I for three months more, iii. for offence u/s 337-A(i) PPC Daman of Rs.10,000/- to be paid by each accused to each injured Faiz Rehman, Amir Bux and Moula Bux and imprisonment for one year R.I, iv. for offence u/s 337-F(i) PPC, Daman of Rs.10,000/- to be paid by each accuse d to each injured Faiz Rehman, Amir Bux and Moula Bux and imprisonment for one year R.I, v. for offence u/s 337-A (iii) PPC, Arsh of Rs.25,000/- to be paid by each accused to each injured Faiz Rehman, Amir Bux and Moula Bux and imprisonment for five years R.I, vi. for of fence u/s 337-L (ii) PPC, imprisonment for one year R.I, vii. for of fence u/s 504 PPC, imprisonment for one year R.I, All the sentences of imprisonments were ordered to be run concurrently and benefit of section 382-B, Cr.P.C was also extended to the accused, however they shall remain in custody till the Daman and Arsh amount is paid to the injured Faiz Rehman, Moula Bux and Amir Bux.
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2. Concisely the facts of the prosecution case are that complainant Muhammad Ishaque owned agricultural land and had got sanctioned Government road towards their lands. Few days prior to the incident, the complainant party was putting mud in the way for road, where their relative accused Muhammad Ayoub came and asked them that he will not allow them to construct road and harsh words have been exchanged between them, thereafter he by issuing threats went away . On 10.06.2008, in the morning time, complainant Muhammad Ishaque, his brothers Ali Bux and Faiz Rehman were working in their lands, when at about 10.00 a.m accus ed Yousif with rifle, Muhammad Ayoub with hatchet, Muhammad Younis with hatchet, Khalid Hussain with iron rod and two unidentified persons with pistol and lathi came there. Accused Muhammad Ayoub by saying that since they were not desisting from constructing the road, therefore, they would not be spared, caused hatchet blow to Ali Bux on his head, who raising cries fell down and then remaining accused caused hatchet, lathi, kicks and firsts blows to him. On their cries, PWs Moula Bux and Ameer Bux came there and accused Muhammad Younis caused hatchet blow to Moula Bux on his head while rest of the accused caused hatchet and lathi blows to Ameer Bux. On their cries Co-villagers also attracted at the place of vardat, who rescued them and then accused went away towards their houses by abusing the complainant party . Complainant party then noticed that Ali Bux had received injuries on his head, over left eye and other parts of the body and blood was oozing. Injured were brought at police station Padidan and then at RHC Padidan, wherefrom injured Ali Bux and Moula Bux were referred to PMCH Nawabshah. Thereafter the complainant leaving the injured in hospital came at Police Station Padidan and lodged such FIR. On 12.06.2008 injured Ali Bux succumbed to injuries and died. 3. After registration of FIR, police conducted investigation, arrested accused and on completion of investigation submitted challan against them before the court having jurisdiction. After comple ting all the legal formalities the charge was framed against the accused/appellants to which they pleaded not guilty and claimed trial. 4. The prosecution in order to prove the case examined P.W-1 Complainant Muhammad Ishaque at Ex.14, who produced FIR already on record at Ex.4/A, PW-2 injured Moula Bux at Exh.15, PW-3 injured Faiz Rehman at Exh.16, PW-4 injured Amir Bux at Exh.17, PW-5 mashir Aziz Rehman at Exh.18, who produced mashirnama of inspection of injuries, mashirnama of place of vardat, inquest report, recovery of clothes of deceased, Danistnama, mashirnama of arrest of accused, and mashirnama of recovery of crime weapons at Exh.18-A to 18/G, PW-6 Tapedar Muhammad Yousif at Ex.19, who produced sketch of vardat at Exh.19-A, PW-7 SIP Muhammad Mithal Dahar the author of FIR at Exh.20, PW-8 M.O Dr. Arbab Ali Channa at Exh.21 who produced lash chakas form and post mortem report of deceased Ali Bux at Exh.21-A and 21-B, PW-9 Medical officer Dr. Muhammad Aslam Arain at Exh.22 who produced police letter and medical certificates of injured at Exh.22-A to 22-F, PW-10 ASI Gul Hassan at Exh.23, PW-11 I.O Inspector Aijaz Ahmed Rajper at Exh.24, who produced mashirnama of place of vardat, inspection of dead body , recovery of clothes of deceased, arrest of accused, recovery of crime weapons and chemical report at Exh.24-A to Exh.24-F . Thereafter , learned ADPP for the state closed the side of prosecution at Exh.25. 5. Statements of accused/appellants were recorded under section 342 Cr.P.C at Exh.26 to 28, in which they have denied the allegations of the prosecution and claimed their innocence. However , neither they led evidence in their defence nor examined themselves on oath u/s 340(2) Cr.P.C. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal. 6. Learned counsel for the appellants has contended that the prosecution has failed to prove its case beyond reasonable doubt; that there is one day delay in registration of FIR, 16 days delay in recording statements of injured Moula Bux and 9 days delay in recording statements of other witnesses u/s 161 Cr.P.C while delay of two days in making memo of place of incident; that the appellants were arrested on 16.6.2008 while recovery of crime weapon was effected on their pointation after 10 days on 26.06.2008; that the blood stained earth was collected from the place of incident on 12.06.2008 but sent the same for chemical analysis on 30.06.2008 after 18 days while the blood stained clothes were not sent for chemical examination; that there are major contradictions in the evidence of prosecution witnesses; that the co-accused Muhammad Yousif was acquitted by the trial court on same set of evidence, however appellants were convicted, which is against the principle of falsus in uno, falsus in omnibus; that the PWs and mashirs are close relatives of the deceased; that the impugned Judgment is against the
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law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellants by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside; he finally prayed that by extending benefit of doubt, the appellants may be acquitted. Learned counsel for the appellants in support of his contentions placed his reliance on the cases of Farooque Ahmed and others v. Sobha ro and others (2020 P.Cr.L.J Note 130), Muhammad Asif v. The State (2017 SCMR 486) and Altaf Hussain v.The State ( 2019 SCMR 274 ). 7. Learned counsel for the complainant has contended that the prosecution has proved its case against the appellants beyond any reasonable shadow of doubt by producing oral as well as medical evidence; that no major contradiction is pointed out by the defence counsel; that the delay in lodging of FIR has been explained and active roles have been assigned to the appellants as such false implication of appellants cannot be claimed; that so far the non-association of witnesses from the locality is concerned, it has been observed by the Apex courts in number of cases that it is matter of common knowledge that the people from the locality generally hesitate to come forward as witness in such cases for fear of reappraisal from the accused party; that the offence in which the appellants are involved is heinous one; that the learned trial court has rightly convicted the appellants and they do not deserve any leniency . Lastly he prayed that the appeal of the appellants may be dismisse d. In support of his contentions leaned counsel for the complainant placed his reliance on the cases of Sadam Hussain @ Kobra and others v. The State and others (2021 MLD 1763 ), Fateh Muhammad and others v. The State and others (2021 P.Cr.L.J 969), Fazal Akbar and another v. The State through A.A.G and another (2013P .Cr.L.J 369) and Akhtar v. The State (2014 P .Cr.L.J 993). 8. Learned A.P.G. appearing for the state has supported the arguments advanced by learned counsel for the complainant so also supported the impu gned judgment and further contended that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court. He placed reliance on case law reported as Mohibullah and another v. The State (2020 P.Cr.L.J 1039) and Farman Ali and another v . The State and another ( 2020 SCMR 597 ). 9. I have heard learned counsel for the parties and have gone through the material available on record including law cited at the bar with their able assistance. 10. On reassessment of entire material available on record and after hearing the parties, I am of the view that the prosecution has prove its case against the appellants beyond a reasonable doubt by producing oral as well as medical evidence including the recoveries. The evidence produced by the prosecution is reliable, trustworthy and confidence inspiring and the same is discussed as below . Oral/ ocular evidence. 11. he prosecution has examined compla inant namely Muhammad Ishaque as PW-1 (Eye-witness ) who deposed that he is complainant of the case. Deceased Ali Bux was his brother . He had got sanctioned a mattled road from Government from link road towards their village. Few days prior to this incident, he and his brother were filling earth for the road. Meanwhile their relative Muhammad Ayoub came there, who exchanged harsh words with them. Muhammad Ayoub further disclosed that he will not allow them to complete the road. On 10.06.2008 he, his brothers Ali Bux and Faiz Rehman were working in their land. At about 10.00 a.m accused Muhammad Yousif with rifle, Muhammad Ayoub and Muhammad Younis with hatchets, Khalid with iron rod and two unidentified persons armed with pistol and lathi came there. Accused Muhammad Ayoub challenged them and said that since they are not going to stop the construction of road, therefore, he will not spare them. On saying so, accused Muhammad Ayoub caused hatchet blow on the head of his brother Ali Bux, who cried and fell down. Accused Khalid caused iron blow over left eye of his brother Ali Bux. Co-accused maltreated them. He deposed that they raised cries which attracted Moula Bux and Amir Bux who also came at place of incident. Accused Muhammad Younis caused hatchet blow to Moula Bux on his head. Co-accus ed caused iron rod blows and lathi blows to Amir Bux. On cries villagers also attracted at place of incident who gave the name of Holy Quran to accused and rescued them. Thereafter accused went away with their respective weapons towards their houses. He with the help of villagers shifted injured Ali Bux, Moula Bux, Faiz Rehman and Amir Bux at P.S Padidan and after getting letter for medical treatment, he again brought them at R.H.C Padidan. From Padidan hospital his brother injured Ali Bux and his cousin Moula Bux
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were referred to Nawab shah hospital as they were in serious condition. He brought both injured at Nawab shah hospital, leaving them there, on next day of the incident; he came at PS Padida n, where he lodged the FIR of incident against accused. He deposed that he shown place of incident to Investigating Officer of this case. I.O collected blood stained earth from place of vardat under mashirnama and sealed the same. On 12.6.2008 his brother injured Ali Bux succumbed to his injuries at night hours in Hospital at Nawab shah. Postmortem of dead body of his deceased brother was conducted at Nawab shah hospital and thereafter they brought the same at their village at Naushahro Feroze. On 13.6.20 08 I.O of this case came at their village and inspected the dead body . They handed over the clothes of deceased to I.O. This witness was cross-examined but nothing favourable to appellants has been pointed out by the defence counsel. 12. The prosecution also examined Moula Bux as PW-2 (Injured/ Eye-witness ) who deposed that Complainant and deceased are his cousins. On 10.06.2008 he and Amir Bux were present outside of their houses. At about 10.00 a.m they heard cries from the lands of complainant Muhammad Ishaque. Thereafter , they both rushed there, when they reached in the lands of Muhammad Ishaque, they saw that accused were quarrelling with Muhammad Ishaque and his brothers. They identified accused to be Yousif with rifle, Ayoub with hatchet, Younis with hatchet, Khalid with iron rod and there were two unidentified persons having pistol and lathi in their hands. Accused Ayoub caused hatchet blow on the head of Ali Bux, who fell down. Accused Khalid cause d iron rod blow over the left eye of Ali Bux. He tried to intervene, whereupon, accused Muhammad Younis caused hatchet blow on his head. Accused Khalid caused him iron rod blow on his abdomen. All accused gave beatings to complainant Muhammad Ishaque and others. Meanwhile villagers attracted at place of incident. Therea fter accused went away while abusing them. Complainant shifted them at PS Padidan, wherefrom he obtained letter for their medical treatment and brought them at Padidan Hospital. He and injured Ali Bux were referred from Padidan Hospital to Nawab Shah Hospital because of serious condition. Leaving them in Nawab shah hospital, Muhammad Ishaque came at Padidan PS where he lodged FIR of the incident. On 12.6.2008 injured Ali Bux succumbed to his injuries and passed away in Nawab shah hospital at about 11.00 p.m. On 26.6.2008 his state ment was recorded at P.S. This witness fully corroborates with the version given by the complainant and was cross-examined but defence counsel has not shattered his evidence. 13. The prosecution examined another injured witness namely Faiz Rehman as PW-3 (Injured Eye-witness ) who deposed that Complainant is his broth er. Deceased was also his brother . On 10.6.2008, he, his brothers Muhammad Ishaque and Ali Bux were working in their lands. At about 10.00 a.m, accused Ayoub, Younis with hatchets, Khalid with iron road, Yousif with rifle and 2 unidentified persons with pistol and lathi came there, with their common object. Accused Yousif controlled upon them. Accused Ayoub caused hatchet blow on the head of his brother Ali Bux who cried and fell down on earth. Accused Khalid caused iron rod blow over the left eye of his brother Ali Bux. Co-accused caused him and his brother Muhammad Ishaque kicks and fists blows. On cries, PWs Amir Bux and Moula Bux attracted at place of vardat. Accused Younis caused hatchet blow on the head of Moula Bux whereas accused Khalid caused iron rod blow on abdomen of Moula Bux. Amir Bux came forward to intervene, whereupon, accused Younis caused hatchet blow on the hand of PW Amir Bux. Thereafter Amir Bux seated. Accused Khalid caused iron rod blow to Amir Bux on his head and elbow of arm. Accused Khalid also caused him iron rod blow on his head. On their cries villagers appeared at place of vardat who gave names of Almighty Allah to accused, whereupon, accused went away towards their houses. They noticed that his brother Ali Bux was bleeding from his head and his eye was swelling . They further noticed that Amir Bux and Moula Bux had also received injuries. His brother Muhammad Ishaque with the help of villagers arranged for the transport and shifted them from place of incident to P.S Padidan. After getting letter for medical treatment from PS Padidan, they were brought at Padidan hospital. Ali Bux and Moula Bux were referred by Padidan Hospital to Nawab shah hospital because of their serious condition. He and Amir Bux were admitted in Padidan Hospital for medical treatment. On third day of incident, he came to know that his brothe r Ali Bux has succumbed to his injuries. They came at their village to see his last face. Police had recorded his statement. He fully supported the case of prosecution and no major contradiction seen in his cross-examination.
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14. The prosecution examined eye-witness Amir Bux PW-4 (Injured Eye-witness ) who deposed that Complainant is his relative. Deceased Ali Bux was also his relative. Complainant Ishaque had got sanctioned a mattled road, which had annoyed accused Yousif. Few days prior to incident there had exchange of harsh words in between complainant and accused Yousif. On 10.6.2008 he and Moula Bux were present outside of their houses. At about 10.00 a.m they heard cries from the lands of complainant Ishaque, therefore, they rushed there and saw that accused Yousif with rifle, Ayoub, Younis with hatchets, Khalid with iron rod and two unidentified persons with hatchet and lathi were present there. They saw from the distance of about 8/10 paces that accused Ayoub caused hatchet blow on the head of Ali Bux, who cried and fell down. Accused Khalid caused iron rod blow over left eye of Ali Bux. They tried to intervene the occurrence whereupon accused Younis caus ed hatchet blow on the head of Moula Bux, who fell down, accused Khalid caused iron rod blow to Moula Bux on his abdomen. He further deposed that he gave names of Almighty Allah to accused, whereupon accused Younis caused hatchet blow to him on his right palm. Accused Khalid caused him iron rod blow on his head from back side and on his arm. The cries attracted villagers who came at place of incident and gave the names of Holy Quran to accused and rescued them. Thereafter accused went away while abusing them. Complainant with the help of villagers brought him, Ali Bux, Moula Bux and Faiz Rehman at PS Padidan, wherefrom they obtained letter for their medical treatment and they were brought at Padidan hospital. Injured Ali Bux and Moula Bux were in serious condition; therefore they were referred to Nawabshah hospital. He and Faiz Rehman were admitted in Padidan hospital. On third day of incident they came to know that injured Ali Bux has succumbed to his injuries. This witness was also cross-examined but nothing in favour of appellants has been pointed out. Medical evidence . 15. The prosecution in order to prove the death of deceased as un-natural and to prove the injuries received by the injured in the case in hand has produced medical evidence in support of the ocular evidence and examined Dr. Arbab Ali as PW-8 who deposed that on13.6.2008; he was posted as Sr. Medical Officer at PMCH, Nawabshah. On same day dead body of deceased Ali Bux Brohi was brought before him by ASI Ghulam Hassan Bhangwar of A-Section PS Nawabshah. It was about 3.30 a.m of 13.6.2008 when dead body was produced before him by ASI Gul Hassan and he produced before him Lash Chakas Form of dead body of deceased Ali Bux. He deposed that he started postmortem examination at 3.30 a.m and finished the same at 4.40 a.m. On external examination, he noted following injuries on the person of deceased Ali Bux:- 1. Stitches wound 14 c.m from left frontal region up to left ear . 2. stitches wound about 7 cm from mid parietal up to right parietal region. 3.Surgical stitches wound near left umbili cal region of abdomen about 6 cm. Internally he found following injury on the body of the deceased. One deep dissection left front temporal bone is fractured. According to the Ward record, craniotomy was done for removal of sub arachnoid hemorrhage (Head injury). Internally in thorax he did not find any disease/lesion in the body of deceased. The doctor further deposed that on external as well internal examination of dead body of deceased, he was of the opinion that death of the deceased Ali Bux occurred due to above mentioned head injuries. The cause of death pulmonary cardiac arrest and consequence of above mentioned head injury . All the injuries were ante-mortem in nature on the body of deceased. 16. The prosecution also examined Dr. Muhammad Aslam as PW-9 who deposed that on 10.6.2008 he was posted as Medical Officer at R.H.C, Padidan. On the same day at 11.30 a.m four injured namely Moula Bux, Amir Bux, Faiz Rehman and Ali Bux appeared before him for their medical treatment through letter of police of PS Padidan. He examined all the four injured as under:- 1. Injured Faiz Rehman . He received following injuries: 1. Lacerated wound 5 cm x x skin deep on right parietal temporal region of head. (bone not exposed). 2. This injury was declared by him as Shujja-e-khafifah. He had received injury through hard and blunt substance. 2. Injured Ali Bux . He received following injuries.
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1. Lacerated wound 9 cm x cm x 1 cm up to bone on mid of right plus left parietal region of head (kept reserved for radiological expert opinion). 2. Contusion with swelling 7 cm x 4 cm x on left eye with redness of left eye (kept reserved for expert opinion). He received injuries with hard and blunt substance. He was referred to P.M.C.H, Nawabshah, where he died after 3 days. 3. Injured Amir Bux . He received following injuries:- 1. Incised wound 2 cm x1/4thc.mx skin deep on palm of right hand. 2. Lacerated wound 3 cm x cm x skin deep on left paritone-occipital region of head (bone not exposed). 3. Contusion with swelling 5 cm x 4 cm on left elbow joint (posteriorly). The injury No.1 was declared by him as jurh-e-GhayrJaifah Damiyah, injury No.2 as Shujja-e-Khafifah and injury No.3 as other hurts (337-L(2) PPC). Injured Amir Bux had received injury No.1 with sharp cutting weapon, whereas injuries No.2 and 3 with hard and blunt substance. 4. Injured Moula Bux . He received following injuries:- 1. Lacerated wound 5 cm x half cm x up bone on mid of frontal region of head (kept reserved for radiological expert opinion). 2. Contusion with swelling 10 cm x 2 cm x on lower part of left chest (kept reserved for radiological expert opinion). After receiving expert opinion from Radiological Expert, he declared the injury No.1 of injured Moula Bux as Shujja- e-Hashimiyah and injury No.2 as other hurts (337-L(2) PPC). Injured Moula Bux had received injuries through hard and blunt substance. Circumstantial evidence as well as Recoveries : 17. In order to prove the circumstantial evidence which includes recoveries, the prosecution examined Azizur- Rehman as PW-5 (Mashir) , who deposed that on 10.6.2008 ASI Muhammad Mithal noted the injuries of injured Ali Bux, Amir Bux, Faiz Rehman and Moula Bux at PS Padidan. ASI Muhammad Mithal prepared such mashirnama in his presence. He further deposed that on 12.6.2008 SIP Aijaz Ahmed Rajper visited the place of incident in his presence and in presence of co-mashir , which was shown to them by complainant Muhammad Ishaque. A dry blood was lying at place of incident. Complainant disclosed that said blood was of his deceased brother Ali Bux. SIP Aijaz took blood stained earth from place of vardat and sealed the same into a plastic box. SIP Aijaz prepared such mashirnama and obtained their signatures over it. He deposed that on 13.6.2008 complainant Muhammad Ishaque shown dead body of deceased Ali Bux to SIP Aijaz Ahmed Rajper which was lying in deceased' s house. SIP Aijaz Ahmed prepared mashirnama of dead body of deceased Muhammad Ishaque in his presence and in presence of co-mashir Ghulam Rasool and obtained their signatures over it. The dead body of deceased Ali Bux was wrapped into white colored coffin. On same day viz.13.6.2008 complainant produced clothes of deceased to SIP Aijaz Rajper at 7.40 a.m said SIP prepared mashirnama of clothes of deceased on spot and obtained their signatures over it. SIP Aijaz also prepared danistnama of dead body of deceased in his presence on 13.6.2008. On 16.6.2008 SIP Aijaz Ahmed arrested accused Muhammad Younis and Khalid Hussain near their houses in his presence and in presence of co-mashir Ghulam Rasool at about 7.00 p.m. SIP Aijaz Ahmed prepared such mashirnama in their presence. On 26.6.2 008 at about 10.00 a.m accused Muhammad Younis produced a hatchet to…
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