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Petitioner: MEHDI and another VS Respondent: THE STATE and anothers
Court Name: Balochistan High Court Judge(s): Mehta Kelash Nath Kohli, Akhter Zaman Malghani Title: MEHDI and another vs THE STATE and anothers Case No.: Criminal Appeal No,72 Criminal Revision No,10 of 2004 Date of Judgment:2005-05-16 Reported As: 2005 P C R L J 1689 Result: Sentence reduced
JUDGMENT
JUDGMENT ' MEHTA KAILASH NATH KOHLI, J.--- This appeal has been directed against order of conviction passed by Sessions Judge, Quetta in Sessions Case No,25 of 2003, whereby; the appellant was convicted and sentenced to undergo fourteen years' R.I. And also to pay compensation in the sum of Rs,1,00,000 in default of payment of compensation, the accused to further suffer for two years. Benefit of section 382-B, Cr.P.C. Was extended in his favor. A revision petition has also been filed by complainant for enhancement of sentence of accused. ' Both Criminal Appeal No,72 of 2004 and Criminal Revision Petition No,10 of 2004 are disposed of by this common judgment. ' Facts of the case are that in Fard-e-Bayan (Exh.P. I/A), it was stated by Nadir Ali that he resides with his family at Syed Abad, Quetta and owns a butcher shop/poultry store in the name of Super Poultry Store. It was also stated that he along with his younger brother Khan Muhammad and Sher Muhammad were present; in the morning there was a petty commotion between his brother Abbas. And owner of adjacent butcher shop namely Mehdi, whereupon; his younger brother Khan Muhammad had gone tQ complain about the same. Mehdi and his younger brother had exchanged hot words, thereafter, Mehdi took a butcher's dagger and assaulted on the chest of his brother, whereupon; his brother sustained grievous injury and fell down and on account of loss of heavy blood, his brother had died. The motive was that there was a petty dispute between his younger brother and Mehdi. On the basis of same, F.I.R. Bearing No,12 of 2003 was registered by Quaidabad Police Station at 2-20 p.m. While; the alleged offence statedly having been committed at 12-50 p.m. The distance between the place of incident and that of police station is shown as
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three furlong. After usual investigation, the matter was put to trial and charge was read over to the accused, who claimed trial. ' The prosecution in order to substantiate accusation, has produced the following evidence:-- P.W.1 Nadir Ali son of Hussain Ali. He deposed that his house is situated in Marriabad and they own butcher shop situated on Alamdar Road. The name of shop is Super Poultry Store, which is situated in Syed Abad, Quetta. Deceased Khan Muhammad was working with him in the shop. It is stated that shop of the accused is situated in front of their shop. On 23rd February, 2003, in the morning he was sitting with his brothers Khan Muhammad and Sher Muhammad, on the rate of beef, there was a dispute/commotion between his brother Abbas and accused. Thereafter, Abbas went to home, then deceased Khan Muhammad went to the accused at 12-30 noon and complained him whereupon; the accused abused him and caused injury on his chest, who became injured and fell down on the site. The blood was oozing, and in the meantime; police personnel came on motorcycle, who took the accused to police station, while Colonel Mahmood and his brother took Khan Muhammad to the hospital. Colonel Mahmood was purchasing meet at that time, while; police personnel were also standing. It was further stated that his brother on account of said injury died. The motive is that the accused had petty dispute with his brother Abbas, whereupon; he had assaulted with dagger and caused injury to his brother. He produced Fard-e-Bayan (Exh. P. 1/A). ' In cross-examination; he admitted that he sells the meet of chicken in the shop as well as beef. He admitted that adjacent to his shop, Syed Ejaz owns Provisional shop. He admitted that adjacent to the shop of Syed Ejaz, Mehdi owns shop of poultry/chicken. He admitted that in his shop, his brothers Abbas, Sher Muhammad and Khan Muhammad were working jointly. He admitted that they are not having water connection in their shop, while; accused had water connection in his shop. He admitted that they collect water from the shop of accused. They were not on inimical terms with the accused; being neighbourers, they had very good relations and they also used to take feast at some time together. He admitted that there had been commotion with his brother Abbas in the morning on account of one child of Syed Hakeem. He admitted that the said customer earlier had come to the shop of accused, who had given rate of beef at Rs,93 per kilogram, while he came to his shop, they had given rate at Rs,83 per kilogram, and; he had purchased thirty kilogram beef. He denied that after departure of Abbas to the house, he went to fetch water from the shop of accused, who refused to provide the water. He denied that the shop is fenced with iron grill, rather; there is mirror affixed in the same. He stated that while entering the shop of accused, there is butchering counter constructed with cement, the counter contains beef and weighing scale, while: butchering knives lay on other place. He admitted that behind the counter. Accused used to butch the beet. There is a distance of 1-1/2 yards between the counter and the back wall. He admitted that their shop is situated towards eastern side of Alamdar Road. He admitted that at the time of incident, he was present in his shop and was not present in the shop of accused. He denied that since he had not gone to the shop of accused, therefore, he could not say anything about the incident, voluntarily stated that on hearing commotion, he came out of his shop and saw that accused assaulted with knife blow on the chest of deceased Khan Muhammad, the incident. Took place in front of the shop of accused. He denied that the incident took place in the shop of accused. He denied that he along with his brothers Sher Muhammad and deceased Khan Muhammad armed with knives, assaulted the accused in his shop. They were provocative on account of morning's. Commotion and refusal of providing water by the accused. He denied that he did not slap the accused on his face. He denied that he and accused had abused each other. He denied the deceased Khan Muhammad attacked upon accused, who in self-defence, assaulted with knife on deceased. He denied that at the time of incident, people overpowered his brother Sher Muhammad armed with knife, and brought him out from the shop of accused. He denied that at the very first instance, Sher Muhammad along with knife was handed over to the police. Accused
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was handed over to the police, by Colonel Mahmood. He denied that he had given wrong statement. ' P.W.2 Habib Khan, Constable, Madadgar Centre. Quetta.. He deposed that incident took place on 23rd February, 2003. On that day, his duty was in Madadgar Centre, he along with Muhammad Ali and Abdul Rauf boarded on Falcon motorcycles were patrolling. Alamdar Road. At about 12-50 p.m. They saw that one shopkeeper was fighting with somebody. He saw that accused had dagger in his hand, then said butcher's knife, who assaulted with dagger on Khan Muhammad, whose name was, known to him later on. On account of infliction of injury by dagger, Khan Muhammad ran out of the shop and fell down at Alamdar Road. He along with his colleagues overpowered accused Muhammad Mehdi and took him to Quaidabad Police Station, while injured Khan Muhammad was taken to hospital by his fellow colleagues. ' In cross-examination, he stated that their motorcycles bear number as Falcon-1 and Falcon-2. He was riding on Falcon-1 and on Falcon-2, Muhammad Ali and Abdul Rauf were boarded. He admitted that he did not hear the conversation between the fighters.. He denied that he had not seen the accused, attacking upon deceased Khan Muhammad with dagger. He admitted that deceased was injured in the shop. He admitted that at the time of fight, brothers of deceased were present with him. He admitted, that deceased and his brothers were also having daggers in their hands. He admitted that Khan Muhammad and his brothers attempted to attack upon deceased; he on his own stated that when Khan Muhammad became injured, then his brothers attempted to attack. He denied that before sustaining injury, deceased Khan Muhammad and his brothers attempted to attack upon accused. He admitted the possibility that accused in his defence attempted to assault the deceased. He admitted that brother. Of deceased namely Sher Muhammad was also taken to the police station. He denied that after the incident, he reached the spot. ' P.W.3 Ibrar Hussain, Sub-Inspector. He deposed that on 23rd February, 2003, he was posted in Quaidabad Police Station. On that day, he along with Shabbir Hussain, Sub-Inspector went to Civil Hospital, Quetta, jaffar was also accompanying them. In their presence, Shabbir Hussain seized blood-stained clothing, Shalwar, Bunyan, Jersey and another Bunyan, and; sealed in parcel. Seizure memo. (Exh.P.3/A), bearing his signatures, was prepared. Sealed parcel bearing C.S. Stamp, was opened at the request of A.D.A. Blood stained clothes Shalwar, Bunyan, Jersey and another Bunyan (Artic1-1) were the same, mark of cut was present on the clothes, thereafter, in his presence, accused stated that he could effect recovery of crime weapon (Chhuri), disclosure memo. (Exh.P.3/B) bearing his signature, was prepared, thereafter, they reached to the place of incident, wherefrom blood-stained clothes were seized vide seizure memo. (Exh.P.3/C) produced in the Court. Blood was sealed in parcel. Sealed parcel bearing C.S. Stamp, was opened at the request of A.D.A; the blood which was collected through cotton (Article-2) from the place of Incident, was the same. Sample of seal of both the articles were produced as Article-3 and Article-4. ' In cross-examination, witness stated that disclosure with regard to the recovery of dagger was made in Quaidabad Police Station on 23rd February, 2003 at 5-00 p.m. At that time, he along with accused were sitting in the room of S.H.O., apart from them, D.S.P.O. Was also there. At the time of disclosure, he remained in the room of S.H.O. For ten to fifteen minutes, thereafter got up, the witness showed his ignorance that where he went. He denied that accused did not make any disclosure. He denied that disclosure memo. Was prepared by the police. ' P.W.4 Muhammad Aslam, A.S.-I. Deposed that on 23rd February, 2003, he was posted in Quaidabad Police Station. On that day, witness, Shabbir S.-I. Along with other police officials, took the accused to Alamdar Road, accused stated to stop the vehicle in front of a shop. S.H.O. Called another shopkeeper namely Syed Ejaz. Accused identified his shop, lock was broken and accused entered in the shop; along with cash-counter, got out a knife/dagger, and produced to the blade of
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the dagger was 8.8 inches, whereas handle of knife was 4-1/2 inches, three nails were fixed and also containing one piece of brass, having names of Azhar and Arshad. Knife was stained with blood. Knife was taken into possession and sealed in parcel vide recovery memo. (Exh.P.4/A), which was produced by the witness and verified his signatures. Sealed parcel bearing CS seal stamp, .Was opened at request of A.D.A., Knife Article 5 and sample of seal Article-6 were same, witness identified his signatures on the parcel. ' In cross-examination, witness stated that they went for recovery at 6-00 p.m. He showed his ignorance that he did not remember that whose shop is situated on the right and left of the shop. The direction of shop was on northern side. He stated that he did not know that jaffar A.S.-I. Was accompanying or not. Shabbir had called someone who broke lock of the shop with hammer. He denied that lock was opened with key. He denied that he had not gone to the place of incident for recovery, whereas; Jaffar A.S.-1. Went in his place. He admitted that on memo. (Exh.P.4/A) there was no other name, beneath his name, but he did not remember, what was the same. He denied that before his name, Jaffar A.S.-I.'s name was written, voluntarily stated that it was his name. He denied that the accused neither accompanied them nor the knife was recovered. He denied that the recovery of knife was forged. He denied that he deposed falsely. ' P.W.5 Muhammad Anwar, M.L.O. Civil Hospital, Quetta. Deposed that on 23rd February, 2003, he was deputed as Medico-legal Officer, in Civil Hospital, Quetta, at about 2-15 dead body of Khan Muhammad was brought by Shabbir Hussain A.S.I.P. For post-mortem examination and report. Witness conducted post-mortem of the dead body and found following injuries and produced M.L.C. (Exh.P.5/A):-- "Injuries on the body. (1) Incised wound below left clavicle on 1st intercostals space (ICS) 2-1/2 x 1 x 2 inch muscle deep. (2) Severe bleeding from the wound. (3) Pupils are dilated. (4) Abrasion right lower leg 2 c.m. In size. Opinion ' Probable cause of death of the deceased was injury to vital organ i,e, lungs caused by sharp- edged weapon. I issued medico-legal certificate to which I produce as Exh.P.5/A. It is same, correct and signed by me. In my opinion, injuries sustained by the deceased are sufficient to cause death in the ordinary course of nature." ' The said witness was not cross-examined. ' P.W.6 Shabbir Hussain, S.-I., deposed that on 23rd February, 2003, he was posted as Duty Officer in Quaidabad Police Station, on the same day Falcon-1 through wireless, conveyed information in the police station that at Alamdar Road during fight one person murdered another person namely Khan Muhammad with knife blow, who was taken to hospital and Duty Officer be sent. After receipt of this information, he along with officers and officials of police station boarded on official vehicle went to Casualty Department, Civil Hospital, where one person whose name was known as Khan Muhammad's dead body was lying, which was examined and found injury on the chest near left shoulder, caused through sharp-edged weapon. Murasala regarding medical examination was separately prepared and was handed over to the doctor. Nadir Ali son of Hussain Ali, present in the Casualty Department, disclosed that he is brother of deceased, who vide Fard-e-Biyan (Exh.P.1/A), gave report to him, which was sent to the police station through driver Gulistan for registration of case. He identified Fard as Exh.P.1/A and directed the driver that after registration of case, he,be informed about registration number of the case. He on is own stated that he started investigation of the case. On the basis of Murasala, F.I.R. (Exh.P.6/A) was registered, and verified, his signatures on the same. Syed Nabi, Ali Yawar and Liaquat Ali were also present in the Casualty Department, who stated that at the time of incident, they were present at the spot, whose statements were recorded and on instructions, a person namely Sakhi collected blood-stained clothes of deceased from the
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doctor and handed over to him. Fard (Exh.P.3/A) bears his signatures, was identified by him, thereafter; he prepared inquest report (Exh.P.6/B) duly signed by him was produced and identified his signatures. Thereafter, he along with complainant Nadir Ali went to place of incident. He prepared map regarding site inspection (Exh.P.6/C) without scale duly signed by him and produced, and also identified his signature on the same. From the place of incident, witness with the help of cotton obtained blood of deceased and Parcel No,2 (Exh.P.3/C) duly signed by him, was prepared and produced in the Court. During course of site inspection, shop of accused were found locked, whereafter he also got recorded statements of constables of Falcon-1, who were present there and were eye-witnesses of the incident. During site inspection, S.H.O. And S.D.P.O. Were also accompanying him. He was informed by the Falcon-1 that accused was taken to the police station, therefore, he also proceeded to police station and started interrogation from accused. During course of investigation, accused disclosed that the crime weapon i,e, knife through which he committed murder of Khan Muhammad (objected by defence counsel), he could effect recovery of the same, therefore, in presence of witnesses Fard (Exh.P.3/B) duly signed by him was produced. Thereafter, he along with S.H.O. And S.D.P.O. And other police officials, took the accused to his shop, where he identified his shop, as there were no keys of the locks with accused, therefore, he consented to break the locks, after breaking of lock, the accused entered the shop and produced one knife by stating that he committed murder with the same (objected by the defence counsel), the butcher knife stained with blood having brass strip, was taken into possession and Fard-e- Maqboozgi of crime weapon (Exh.P.4/A), was prepared bearing his signatures and he prepared sketch of the knife, bearing his signatures, which he produced as Exh.P.6/D and seal parcel was prepared. Statements of witnesses were recorded, then he completed the investigation and on 6th March, 2003 he obtained medical certificate in respect of deceased, which he identified as Exh P 5/A. Witness further deposed that he sent the articles for examination, report .Whereof was produced as Exh.P.6/E and identified the same to be correct. After completion of investigation, documents were handed over to the S.H.O., who prepared challan (Exh.P.6/F) bearing signatures of S.H.O. Accused present in the Court was the same. ' In cross-examination, he admitted that when he reached the place of incident, he did not receive blood from the shop of accused and he secured blood of deceased from the side of road, where deceased fell down. On the pointation of complainant, he prepared map of site. He denied that he had not prepared correct map. He admitted that he did not discuss presence of witnesses in the map. He admitted that the accused was arrested before his arrival, whereas; he obtained custody . Of the accused in police station. He denied that in connection of same murder, brother of deceased namely Sher Muhammad was also arrested. He admitted that he did not record statements of Colonel Mahmood, brother of deceased namely Abbas and the child of Hakeem Saeed at the site. He admitted that in Fard of disclosure and recovery (Exh.P.4/A), the name of witness No,1 Muhammad Aslam was written as Muhammad Jaffar, which was corrected because in place of Muhammad Aslam the name of Muhammad Jaffar was erroneously written; on his own stated that in this regard, again verifying signatures. Of D.S.P. Were obtained. He admitted that in Fard, there appears only single signature of S.D.P.O. He denied that the verifying signature was in respect of whole Fard, on his own stated that cutting made in the Fard was also verified. He denied the suggestion that verification was made by S.D.P.O. Prior to correction of the name of Muhammad Aslam, with regard to Fard statement of Syed Ejaz was recorded under section 161, Cr.P.C. He admitted that in the statement of Syed Ejaz, recorded under section 161, Cr.P.C. It was mentioned that the said Fard in presence of Muhammad Jaffar and with his signature was prepared. Witness on his own stated that in statement under section 161, Cr.P.C. Recorded by Syed Ejaz, it erroneously appeared, the correction was not made, in fact it is also Muhammad Aslam. He denied' that knowingly after erasing the name of Muhammad Jaffar, name of Muhammad Aslam
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was written. He denied that Exh.P.4/A was not prepared in presence of Muhammad Aslam and also denied that he was not witness of the same. He admitted that in disclosure memo. (Exh.P.3/B), name of Muhammad Aslam was erased and Muhammad Jaffar was written; on his own stated that it bears his initials and verifying signatures of S.D.P.O. He denied that Muhammad Jaffa was not witness of disclosure memo. He denied that the accused had not broken the lock, as he opened the lock. He admitted that disclosure and recovery memo of crime weapon (Exh.P.4/A) were prepared by himself. He denied that lock of the shop was opened. He denied that, accused had not made any disclosure regarding incident or recovery. He also denied that the disclosures shown, were foisted by themselves., He denied that the accused did not accompany them regarding recovery of knife. He denied that the whole investigation, proceeded on the instigation of brothers of deceased. He denied that during investigation, he came to knowledge that deceased and his brothers went to the shop of accused to attempt assault with knives. He denied that the incident took place in self-defence by the accused. He denied that he did not conduct proper investigation and concealed the truth from the Court. ' In his statement recorded under section 342, Cr.P.C., the appellant/accused did not plead guilty. He also got recorded his statement on oath under section 340(2), Cr.P.C., and deposed that on 23rd February, 2003, in the morning at 8-00 a.m., he opened` his shop/poultry store and started his business. Two customers came into his shop and enquired about price of clean meat, he replied Rs,93 per kilogram, they ordered thirty eight kilograms meet. He started butcher the meat; one of the customers went out side from his shop and entered in the shop of complainant, he returned back to his shop and asked that he was selling the meat on higher rate, he (complainant) was giving the meet at Rs,83. Since, they purchased eight kilograms meat from his shop and remaining thirty kilograms from the shop of complainant. About 12-30 p.m. Khan Muhammad, whose shop was adjacent to, his shop, came and asked for giving water, accused refused to give water, he went out from his shop. After a while, Nadir Ali came to his shop and enquired about refusal of giving water, he replied that water connection has been obtained by him on his own and he had no share, therefore, he refused to give water, and; complained that he was spoiling his customer-ship by selling meat at Rs,83 whereas, the price was Rs,93. Complainant replied that by force, he will fetch water from his shop, he stated that the water connection was his personal property, he will not allow him to fetch water. On that there were exchange of hot words between them. Accused was standing rear portion of the counter whereas Nadir was standing other side of the counter, between them dagger and knives were lying, amongst them, Nadir took one and assaulted on him, but he was saved, in the meanwhile deceased Khan Muhammad and Sher Muhammad lathed with knives, entered into his shop, he tried to escape from the shop, but there was no place, he in his defence took out a knife, in the meanwhile Khan Muhammad came rear side of the counter towards him, Khan Muhammad then attacked, he .Saved him but his attack injured Khan Muhammad. Nadir and Sher Muhammad tried to kill him, but people intervened and saved him. He had no enmity with deceased, he in his defence, attacked upon Khan Muhammad. ' In cross-examination, his shop was in existence for about four years. He admitted that rate of meat was not stable. He denied that always he sold expensive meat than Nadir. He denied that on the day of incident, he told expensive rate of meat due to which his customer went to The shop of Nadir Ali, so he became aggressive and developed pain. He admitted that complainant Nadir Ali has shop of meat, his brothers namely. Deceased Khan Muhammad, Abbas and Sher Muhammad also used to sit there. He denied that he went to deceased's brother Abbas for complaining the matter, on his own stated that on that day Abbas was not present. He denied that complaint converted into exchange of hot words and people separated them. He denied that Khan Muhammad with regard to said dispute, came to him for enquiry, so he also behaved in hard words and abused. He denied that on that account, he took knife from his shop and gave him knife
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blow. He denied that while causing knife blow he was seen by witnesses complainant Nadir Ali and Habib Khan Constable, on his own stated that in fact Nadir attacked on him. He admitted that after sustaining knife blow, deceased Khan Muhammad fell outside on the road. He admitted that, he was arrested by P.W.2 Habib Khan and took him to police station. He denied that he made disclosure before the police that he could effect recovery of knife by which he gave blow to Khan Muhammad, from his shop. He denied that he got recovered the knife and handed over to the police, which was produced in the Court. He denied that no one asked for water and said that the story of water was false. He denied that Nadir, Sher Muhammad and others attacked upon him on the dispute of water. He admitted that in the fight he did not sustain any injury. He denied that he was not attacked and also denied that he had no danger to his life. He denied that he gave false statement. He denied that knowingly he…
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