Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SALLAH VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Rasool K. Sheikh, Ghulam Rasool K. Shaikh Title: MUHAMMAD SALLAH vs THE STATE Case No.: Criminal Appeal No. 164 and Confirmation Case No. 21 of 1969 Date of Judgment:- Reported As: PLD 1970 Karachi 695 Result: Appeal dismissed
JUDGMENT
JUDGMENT GHULAM RASOOL K. SHAIKH, J.----The appellant was convicted by the learned Sessions Judge, Jacobabad for an offence under section 302, P. P. C. And sentenced to be hanged by neck till he be dead. This case has also come up before us under section 374, Cr. P. C. For confirmation of the death sentence. 2. The incident had taken place on 1-4-1968 at tripahri time near vegetable market in the town of Thul, District Jacobabad and the first report was lodged on the same day at 7-15 p.m. At Thul Police Station, situated at a distance of 5 furlongs from the scene of offence, by Jumo father of the deceased Amirbux and it was recorded by Akhtar Muhammad Soomar, S. H. O. 3. The appellant and deceased Amirbux are Bhattis by case but they are not related to each other. The appellant lived in Thul while the deceased and his father lived at a distance of one mile from Thul. Hazoor Bux is Lodo by case and lived at a distance of about 100 paces from the house of the complainant. Daman Shah lived in Thul. The complainant was kamdar of Daman Shah while the deceased and Hazoor Bux were his haris. Allah Ditto is Bhatti by case and related to the complainant, living in Dinkodarya Khan village situated at a distance of two miles from the village of complainant. Muhammad Parial is Lashari by case and lived in Thul and had a vegetable shop in front of the vegetable market intervened by a road running from North to South. There was vegetable shop of Mohabat jaffery situated in the lane running from West to East at a distance of about 8 or 10 paces from the shop of Muhammad Parial Lashari which was the corner shop, that is to say, the front of the shop was situated on the road while the northern side of the shop was situated in the street. Issan Shah is Zamindar and lived in Thul. At one time the appellant was said
---
## Page 2
to be in the service of Issan Shah and at the time of the incident he was said to be in the service of Mohabat Jaffery and worked at his shop. 4. About three months prior to this incident the complainant was driving his cattle along some road passing by the land of Issan Shah and at that time Issan Shah with the appellant passed in a jeep whereupon the cattle shed and entered into the cultiva--petition of Issan Shah who got down from the jeep and asked the appellant to beat .The complainant. The appellant caught hold of the complainant and Issan Shah gave him beating. At that time the appellant was said to be the servant of Issan Shah and his relations were haris of Issan Shah. The deceased having come to know of this occurrence had an altercation with the appellant on the following day in Thul Town. After a few days the appellant left the service of Issan Shah and joined Mohabbat Jaffery. 5. On 1-4-1968 the complainant and the deceased went to Thul to make purchases. After making the purchases they were proceeding towards the market and on the way Hazoor Bux joined them. It was tripahri. When they were near the vegetable market and the deceased was about 5 or 6 paces behind the complainant and Hazoor Bux, the appellant suddenly emerged from the shop of Mohabbat Jaffery and dealt a hatchet blow on the right side of the head of the deceased who fell down at the very spot. The incident was witnessed by the complainant and Hazoor Bux who were going ahead of him as well as by Muhammad Parial Lashari, as the incident had taken place in front of his shop and by Allah Ditto who was also going to the vegetable market and was coming in the street from the eastern side. Several other persons collected. In the meantime the appellant ran away carrying the hatchet to the western side of the lane and escaped. Amir Bux who was still alive, but unconscious, was immediately removed to the hospital by his father Jumo, Hazoor Bux and Allah Ditto. Jumo leaving his son in the hospital directly went to the police station and lodged first report Exh. 5. 6. Mr. Akhtar Muhammad, S. H. O., after recording first report, went to the hospital and found Amir Bux lying at a cot in the verandah. He was alive but still unconscious. The S. H. O. Examined his injuries in presence of mashirs Pir Shah and Abdul Aziz and prepared the mashirnama Exh, 12. Soon after Amir Bux died and the inquest report, Exh. 13, was prepared. The dead body was handed over to Lal Muhammad Constable, to be delivered to the medical officer for post-mortem examination. The S. H. O. Then proceeded to the scene of offence but as it was night he kept a guard there and went to the village of the appellant to arrest him but the appellant was not found. Again the S. H. O. Went to the house of the appellant in the morning but the appellant was absent. His house was searched but nothing incriminating was found. He then went to the scene of offence and inspected it in presence of the same mashirs. There was blood on the ground and the blood-stained earth was secured. The situation of the various shops and the market was shown in the mashirnamn. The S. H. O. Then recorded the statement of Muhammad Parial, Hazoor Bux and Allah Ditto. He again went to the village of the appellant at about 1000 a. m. And the appellant was produced before him by Noor Muhammad, the nekmard of the village. The appellant was taken into custody and interrogated. On 8th April, the statements of Khuda Bux, Mohabbat and Issan Shah were recorded. On 17th April the appellant was challaned. The earth was sent to the chemical analyser and was found to be stained with human blood vide report of the chemical analyser, Exh. 19. 7. The appellant proclaimed his innocence and denied the various allegations which had been made against him. In the committal proceedings he simply pleaded enmity while in the Sessions Court he stated that he was servant of Issan Shah and Jumo was harf of Daman Shah. Issan Shah and Daman Shah were on inimical terms with each other and he had been falsely implicated at the instance of Daman Shah and, therefore, Jumo had filed a false report and had given false evidence. With regard to Hazoor Bux, Muhammad Parial and Allah Ditto he stated that they had taken money from complainant Jumo and, therefore, had given evidence against him. He denied that he was servant at the shop of Mohabbat but contended that he was still the servant of Issan
---
## Page 3
Shah. With regard to the previous occurrence he stated that he was going with Issan Shah in a jeep from Thul to Karimabad on the lands and neither Jumo met them on the way with his cattle nor did his cattle shy. With regard to his absence from the house and arrest he stated that he returned home at 10-00 p. m. After duty and the police did not come that night. But in the morning at 9-00 a. m. He surrendered himself before the police. He did not examine any witness in defence. 8. The prosecution examined Jumo, Hazoor Bux, Muhammad Parial, Allah Ditto, Pir Shah and Akhtar Muhammad. The evidence of first five witnesses was recorded on 10th April 1969, while the 6th witness Akhtar Muhammad, S. H. O. Was examined on 16th April 1969. In this case the tapedar was not examined and instead the learned Sessions Judge inspected the scene of offence on 13th April 1969, and prepared the inspection memo-- randum, Exh. 17. The sketch of the place was also drawn by him. 9. As is apparent the prosecution case at the trial was founded upon the evidence of Jumo, Hazoor Bux, Muhammad Parial and Allah Ditto. However, the learned Sessions Judge as a matter of caution did not rely upon the evidence of Allah Ditto on the ground that his name did not appear in the first report and it was, therefore, doubtful whether he was present in Thul on that day. The evidence of the remaining witnesses was found to be trust-- worthy and natural. The learned Sessions Judge in his judgment did not refer to the motive and the absence of the appellant from the house when the S. H. O. Had gone to arrest him. Thus on the basis of the ocular testimony the learned Sessions Judge found that the case against the appellant had been established and it being the case of dastardly murder in a broad day light in the town like Thul and there being no extenuating circumstance, the death penalty was awarded. 10. There can be no manner of doubt that Amir Bux was murdered. Apart from the ocular evidence this is borne out by the evidence of Dr. Ghulam Nabi who had performed the post--mortem examination. According to his evidence Amir Bux was brought to the dispensary on 1st April 1966, at 6-00 p. m. And he was treated till 7-45 p. m. When he died. He conducted the post-mortem examination on the following day at 8-00 p. m. And completed it at 9-00 a. m. He found the following external injury :- "An incised wound 6" x 1" on right side of neck and head starting from mastroid region and extending to right side of neck. A piece of ear lobe was also cut. Muscles blood vessels and temporal bone was cut." According to the medical officer the injury was caused by a sharp---cutting weapon such as hatchet. On internal examination he found the stomach empty and all the other visceraes were normal and healthy. He was further of the opinion that the death was due to shock and haemorrhage as a result of injury which was sufficient in the ordinary course of nature to cause death. According to him the deceased must have been rendered unconscious on receiving the injury and he had died without regaining consciousness. As regards the identity of the appellant with the crime the evidence against him is ocular as well as circumsiantial. As already pointed out the ocular testimony consists of Jumo, Huzur Bux. Muhammad Parial and Allahditto and of them the presence of Allahditto at the scene of crime for having witnesses the incident was considered doubtful by the learned Sessions Judge on the ground of omission of his name in the first report. Yet there is another reason why the evidence of Allahditto should not be relied upon. According to the prosecution case Allahditto had not only witnessed the occurrence but had accompanied Jumo and Huzur Bux when they took Amir Bux to the hospital after he was injured. Jumo leaving his son in the charge of Huzur Bux and Allahditto went to the police station to lodge the report but when the police arrived at the scene of offence Allahditto admittedly was not there and had already left for his village. It was admitted by Huzur Bux that Allahditto was related to the deceased. In view of the relationship the conduct of Allahditto in leaving the hospital and going away to his village is not consistent with his being an eye-witness
---
## Page 4
or even present in the town of Thul at about the time of occurrence. He could not be expected to leave his own relation who was seriously injured and was in a state of unconsciousness. There remains the evidence of Jumo, Huzur Bux and Muhammad Parial whose evidence was found to be credible and was relied upon by the learned Sessions Judge in proof of the guilt of the appellant. We have considered the evidence of these three witnesses in the light of the surrounding circumstances and the criticism made by the learned counsel for the appellant and we are unable to find any unexplained serious infirmity in their evidence to render it unworthy of credence. In order to appreciate their evidence it is necessary to refer to their evidence in some detail. The first witness is Jumo. He stated that on the day of the incident they had gone to Thul before sun set to make purchases. After they had purchased cloth they were going to the vegetable market and Huzur Bux met them. When they came near the shop of Mohabat his son was 5 or 6 paces behind him. He further stated that at that time Huzurbux was with him. He heard the sound of hurried walking of somebody and on looking behind he found the present appellant giving hatchet blow to his son and after giving the blow he started running. His son fell down and several persons arrived. He picked up his son and raised cries that the assailant was running away whereupon people pursued the appellant but he could not run after him. Allahditto also arrived and then he, Huzur Bux and Allahditto removed his son to the dispensary. His son was unconscious and the doctor examined him. Leaving his son in the dispensary he went to the police station and lodged the report. Then is the evidence of Huzur Bux. He stated that on that day he had gone to Thul and met the deceased and his father in the town. The sun was still a reed high in the sky when the incident took place. He further stated that all the three pro--ceeded towards the vegetable market to make purchases and when they came near the vegetable market he heard the sound of hatchet blow. He looked back and found the present appellant having a blood-stained hatchet in his hand. Amir Bux had received hatchet blow. The appellant after giving the blow started running and he ran after him but he could not catch him and the appellant escaped. He returned to the scene of offence and several persons had collected. Amirbux who was still alive but unconscious was removed to the dispensary. Allahditto also came and he accompanied them. He and Allahditto stayed in the dispensary while Jumo left to lodge the report. The third witness is Mohammad Parial who had a vegetable shop. He stated that it was tripahri when he was sitting at his shop and the incident took place. He saw the deceased going to the vegetable market and he was alone at that time. He did not see Jumo with him at that time. The appellant gave a hatchet blow to Amii Bux and started running. He knew the appellant already as he used to work at the shop of Mohabat since about 2 to 3 months before the incident. Several persons immediately collected and then the relations of the deceased removed the injured to the dispensary. He then closed his shop and went home. He further stated that the incident took place 2 or 3 paces from his shop and there was no other shop except his shop on the road. There were some shops inside the street and one of those shops was of Mohabat at a distance of about 10 paces from his shop. He further stated that the father of the injured was among the persons who had immediately collected at the wardat. He repeated that the other persons including the father of the deceased immediately assembled at the wardat. Several persons of the town including the shopkeepers had collected but he did not know the names of those persons. He dispelled the suggestion that he had not seen the incident and was either a man of Dhaman Shah or had given the evidence at his instance. He maintained that he even did not know Dhaman Shah. Although it is a simple case but it has presented a peculiar feature which may at first sight look baffling. Confusion had arisen about the exact spot where the murderous assault was made on the deceased. It is, therefore, necessary to resolve this confusion before proceeding to enter upon the analysis of the evidence of the witnesses. Looking at the surroundings there is a street running from
---
## Page 5
west to east and in this street there were some vegetable shops and a few houses and one of those shops was of Muhabat Jaffery who according to Mr. Akhtar Muhammad S.H.O. Had gone to Shikarpur and returned a week later. It was at this shop that the appellant was said to be employed Then there is a road running from north to south taking off from the street at the distance of about 10 paces from the shop of Mohabat. At the north-west corner of the road there is the shop of Muhammad Parial facing the road with blank wall on the side of the street. The main vegetable market is situated to the east of the road in front of the shop of Mohammad Parial. The western gate of the market which opens in the road is at a distance of about 5 or 6 paces from the shop of Mohammad Parial. On reading the evidence of Junto complainant an impression was gained that the incident had taken place in the street near the shop of Mohabat. The other evidence on record proceeded to point the spot on the road just in front of the shop of Mohammad Parial at a distance of 2 or 3 paces. The learned counsel for the appellant in an effort to eliminate the evidence of Mohd. Parial laid emphasis on the evidence of Jumo complainant and urged that the incident took place in the street near the shop of Mohabat which spot could not be visible to Mohd. Parial from his shop. In this he also sought support from the First Report and referred to the first report as translated in the printed paper---book in this case. The relevant portion reads:- ---With whom a shortwhile before sunset we when passed near vegetable market in Thul Town from west to east in the street, that near the vegetable shop of Muhabat Jaffery, Muhammad Salleh alias Salleh son of Isso, by case Bhatti, resident of village Rais Noor Muhammad Bhatti, who had a hatchet in his hand, all of sudden, suddenly came over my son Smir Bux from behind and abusing suddenly gave hatchet blow, within our sight on the right side of the neck and head near the ear.--- It being a point of considerable importance, we decided to look into the original First Report which was in Sindhi. To our surprise we discovered that the F. R. Was not correctly translated. Translating the relevant portion it reads :- "Today we both came to Thul town and after finishing the work in the town of Thul Huzur Bux son of Muhammad Saleh by case Lodo resident of deh Old Thul also met us in Thu] town with whom a little before sun set when we passed through the street from west to east near the vegetable market of Thul town Muhammad Salleh alias Sallah son of Isso by case Bhatti resident of Rais Nur Muhammad Bhatti who was armed with a hatchet suddenly emerged from the shop of Mohabat Jafri and pounced upon my son from behind and after abusing him gave a blow on the right side near the ear on the neck and head within our sight." Thus it is incorrect to say that the F. R. Necessarily refers to a spot in the street where the shop of Muhabat was situated. Reverting to the other evidence, we would first of all refer to the evidence of Huzur Bux who stated, "when we came near the vegetable market, we heard the thud of hatchet blow. I looked back and saw the accused present in Court with a hatchet in his hand. Amir Bux had received the hatchet blow". Thus this witness unmistakably refers to a spot on the road where the vegetable market is situated. Recalling the note on surroundings in a preceding para. The western entrance of the market is situated 5 or 6 paces from the shop of Muhammad Parial. Then is the evidence of Muhammad Parial who is the most important witness in this case. He asserted that the murderous assault was made in front of his shop hardly at a distance of 2 or 3 paces. His evidence gains full support from the presence of the blood which is borne out by the evidence of Pir Shah Mashir and Mr. Akhtar Mohammad S. H. O. Corroborated by the Mashirnama Exh. 14 of the scene of offence. This also receives support from the report Exh. 19 of the Chemical Analyser. The blood- stained earth was secured and sealed and sent to him. He found it stained with human blood. Another important circumstance to reject the street as scene of offence lies in the complete absence of evidence to indicate the presence of blood in the street. Neither it is contended nor
---
## Page 6
there is any evidence to show that the deceased on receiving the blow in the street took to flight to avoid further assault and while so running he fell down in front of the shop of Muhammad Parial. Even no such suggestion was made to any of the witnesses, apart from the fact that there was no trail of blood. The evidence on the contrary reveals that the deceased on receiving the blow fell down there and then. The learned counsel for the appellant, stressing his point, urged that the investigation officer in his anxiety to procure an ostensibly independent witness, solicited the support of Mohammad Parial, and, therefore, shifted the scene of crime. We are unable to attach any importance to this allegation. Muhammad Parial was under no obligation to lend support to a false charge without any rhyme or reason. Nor it is to be imagined that the investigating officer was under any obligation to fabricate false evidence. By doing this he was rendering no service to the prosecution as it could not be sure that Muhammad Parial who at one time agreed to lend support would not betray at a later stage, when by passage of time his conscience revolts against perjury earlier conceded to take the life of a person whom he had not seen committing the murder. The speculation of the learned counsel as regards the procurement of Mohammad Parial must be discounted on another ground. The investigating officer had visited the scene of crime on the very night after preparing the inquest report of the dead body in the hospital but as by that time it was dark he posted a guard and again visited the scene on the following morning at 7 a. m. When the Mashirnama was prepared. By that time Muhammad Parial was not contacted. His statement was recorded later. Thus the statement of Muhammad Parial was not available till then and, therefore, there was no occasion for the investigating officer to introduce a different spot to reconcile it to fit in with any statement of the former. The investigating officer could not anticipate that Mohammad Parial would readily agree to join in his efforts to fabricate false evidence. Additionally if the investigating officer was interested in fabricating false evidence, he could equally plant a blood- stained hatchet and clothes to strengthen the case. On the other hand, our attention was drawn by the learned State Counsel, to the site inspection memo. Exh. 17 prepared by the learned Sessions Judge when he visited the scene of offence during the course of trial and it was noted that the complainant who was present at the time of the visit, stated that he and Huzur Bux were at the gate of the vegetable market when the deceased received the blow. Indeed, this statement goes a long way to help in unveiling the mystery shrouding the scene of offence created by the evidence of the complainant but it cannot be looked into for the simple reason that it was not recorded on oath in accordance with legal procedure and no opportunity was available to the appellant to test the veracity of that statement. So we cannot allow ourselves to be guided or influenced by this statement. Having examined the ticklish question from its various aspects in the light of the evidence and the contentions raised before us, we feel no hesitation in placing the exact spot where the deceased was attacked and killed, in front of the shop of Muhammad Parial situated by the road running between the shop and the vegetable market and not in the street where the shop of Mohabat was situated. We are also of the view that the complainant laboured under some misconception and made bona fide mistake while giving evidence. It is not unusual that when a father is put in the witness box to describe the ghastly murder of his son having been committed within his sight, he tells the woeful tale with a stricken heart, afflicted by fresh strokes of grief, thereby loosing the balance of mind and concentration and, therefore, the possibility of some lapses in evidence cannot be ruled out. There is no reason to disregard the other evidence. No definite counter version was placed on the record, on behalf of the appellant and no evidence was called to rebut the case of the prosecution as regards the scene of crime. The arrival of Jumo at the scene of crime immediately after the assault and before the deceased was removed to the hospital, was confirmed by Muhammad Parial in front of whose shop the deceased was attacked. So after
---
## Page 7
having seen his son and the spot where he was lying seriously injured, he could not place the scene at a different spot. This confirms our view that lapse, if any, appearing in his evidence was bona fide. Reverting to the ocular testimony, as already pointed out, the prosecution sought to support the case at the trial by the evidence of four witnesses Jumo Huzur Bux, Mohammad Parial and Allahditto, of them the evidence of Allahditto was rejected by the learned Sessions Judge as well as by us for the reasons stated by us when his evidence was referred to. Jumo is the next witness to be dealt with. He and Huzur Bux were going together while the deceased was following them at a distance of 5 or 6 paces when the appellant gave a hatchet blow on the head of the deceased who fell down and died later in the hospital. Jumo stated that his attention was…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.