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Petitioner: MACHHI AND 4 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ghous Ali Shah Title: MACHHI AND 4 Others vs THE STATE Case No.: Criminal Appeals Nos. 1 and 167 of 1980 Date of Judgment:1980-10-14 Reported As: 1981 P Cr. L J 575 Result: Order accordingly
JUDGMENT
JUDGMENT This appeal under section 410, Cr. P. C. Is preferred-against the judgment dated 22nd December, 1979, of the learned Assistant Sessions Judge, Gambat, whereby he convicted all the appellants under section 148, P. P. C. And sentenced them to suffer R. I. For two years and to pay a fine of Rs. 200 each or in default of payment of fine to suffer further R. I. For three months more. They were convicted under section 452, P. P. C. And sentenced to suffer R. I. For five years and to pay a fine of Rs. 500 each and in default of payment of fine to suffer R. I. For six months, more. They were also convicted under section 307, P. P, C. Read with section 149, P. P. C., and the appellant Machhi, out of them, was sentenced to suffer R, I. For 7 years and to pay a tine of Rs. 2,000 and in default of payment of fine to suffer R. I. For one year more, whereas the appellants Alt Dino, Samano, Khush Mohammad and Fateh Mohammad were sentenced to R. I. For five years and to pay a fine of Rs. 500 each and in default of payment of fine to suffer R. I. For six months more. All the appellants were further convicted under section 324, P. P. C. Read with section 149, P. P. C. And sentenced to suffer R. I. For on year and under section 323, P. P. C. Read with 149, P. P. C. And sentenced to undergo R, I. For six months each. All the sentences are to run concurrently. In case the fine imposed on the appellants is paid, a sum of Rs. 2,000 is to be given to Mulazim Hussain and Rs. 500 to P. Ws. Ghulam Sarwar, Ghulam Hussain and Zamir Hussain each. 2. The facts of the prosecution case are mentioned in the F. I. R. Lodged by one Ghulam Sarwar son of Khan Mohammad resident of village Nehal Machhi, Deh Setharja Taluka Gambat of District Shikarpur, which reads as under:-- "Complaint of the complainant is that I am engaged in the business of general merchandise. Fateh Mohammad Solangi and his sons reside at a call's distance from our houses. They are loafers. Time
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and again they pass by our houses bare-headed. We several times asked them that there was no general passage in front of our houses and they should not walk there bare-headed. They became angry over that and altercations had taken place 2 or 3 times after that. Today at about noon time, my brother Mulazim Hussain asked Machhi Khan son of Fateh Mohammad not to pass by that way, whereupon there was an altercation between them, and Machhi Khan after extending threats of murder to my brother went away. Tonight at about 9 p. m. I, my brother Mulazim Hussain, relative Zamir Hussain were sitting at the shop of Ghultim Hussain, near our houses. The shop was open and Ghulam Hussain was also there; when suddenly Fateh Mohammad and his sons Khush Mohammad, Machhi Khan, Alidino and Samano came to the shop. Fateh Mohammad and Samano had lathis while the rest had hatchets. Immediately on arrival, Fateh Mohammad hurled abuses, that you have levelled charge of `Loaferism' on us, and we would not spare you. On saying so, he instigated his sons not to leave. Whereupon Samano inflicted lathi blows on my head and arms, and the lathi broke down. Fateh Mohammad gave lathi blow to Zamir, Khush Mohammad and Alidino gave hatchet blows to Ghulam Hussain on his head. My brother Mulazim Hussain ran towards his house, and Fateh Mohammad, Khush Mohammad and Machhi Khan followed my brother towards the houses. In the meantime, Alidino son of Mewal came there on the cries ; and I and Alidino son of Mewal had run after them to rescue my brother ; and had seen that in our house, Fateh Mohammad and Khush Mohammad had caught hold of Mulazim Hussain ; and within our sight, Machhi Khan gave hatchet blows with its sharp side on the head of Mulazim Hussain. On the commotion, other people of the village also came there ; and on seeing them the accused fled away. It was seen that the left eye of Mulazim Hussain was cut, and after a little while he became unconscious. Then we searched for the transport. After carrying the injured in the tonga of Ghulam Qamber, I have come for report that the above accused armed with deadly weapons and is prosecution of the common object, with the intention of rioting and committing murder entered in the shop of Ghulam Hussain and our houses illegally and have caused lathi and hatchet blows on us. I complain for redress." 3. The F. I. R. Exh. 16 was recorded by Mohammad Ismail A. S. I. Incharge P. P. Ranipur of Police Station Gambat, who after recording it in the "Roznamcha" sent it to S. H. O., Gambat for incorporating it in 154, Cr. P. C. Book. He thereafter examined the injuries on person of the complainant Ghulam Sarwar and prepared such mashirnama Exh. 20, in presence of mashies Ghulam Kambar and Ghulam Baqir. He referred him to the Medical Officer, Ranipur for his treatment and certificate. The complainant was accompanied by three injured persons, namely Ghulam Hussain, Mulazim Hussain and Zamir Hussain. He examined their injuries as well and prepared such mashirnama Exhs. 21, 22 and 23 respectively in presence of same mashirs and referred them to the Medical Officer Ranipur. He also examined injured Ghulam Hussain and Zamir Hussain. The injured Mulazim Hussain was unconscious and he therefore could not examine to arrange for recording dying declara--tion of the injured, Mulazim Hussain who was in serious condition. He requested Head- Munshi & F. C. M., Gambat, who accompanied him to the hospital and recorded dying declaration of the injured Mulazim Hussain. He then examined him there. He also examined P. Ws. Allah Dino and Ghulam Kambar, Tonga driver on the same day. He thereafter inspected the scene of offence which was situated in village Nihal Machi of Taluka Gambat which was shown to him by P. W. Alidino. He secured three pieces of lathis from the shop of Ghulam Hussain and blood--stained earth from the house of Ghulam Sarwar, and prepared such mashirnama. Exh. 26, if presence of mashies Manzoor Hussain and Ghulam Kambar He thereafter arrested appellant Machi khan from his house and secured a shirt and a loin cloth from his person which were blood stained and prepared such mashirnama Exhs. 26 and 27 respectively in presence of same mashirs. The appellant Machi Khan volunteered to produce the hatchet used by him in commission of offence and led them to a hedge around the garden of Zawar Lal Bux from where he took out the hatchet
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and produced it before them. He secured it in presence of same mashirs. It was blood-stained. He sealed it in a parcel and prepared such mashirnama Exh. 28. He on the same day arrested appel-- lant Alidino from the Hingorja Hospital in presence of mashirs Ghulam Kambar and Manzoor Hussain, and prepared such mashirnama Exh. 29. The appellants Khush Mohammad, Fateh Mohammad and Samano appeared before him at P. P. Ranipur on 10July, 1976 and he arrested them. The appellant Khush Mohammad produced a hatchet, whereas Fateh Mohammad a lathi and he secured the weapons and prepared such mashir--nama Exh. 24. He thereafter sent the case papers to the S. H. O. Gambat who challaned the appellants. 4. The prosecution case is mainly based on ocular testimony, (e.i)--dence of motive, recoveries of blood-stained clothes, production of lathis and hatchets, medical evidence and circumstance of injuries on person of the Alidino/accused. 5. The accused have however denied all the allegations. The defence version of the incident was that the accused Alidino passed by the road near the houses of P. Ws. Ghulam Hussain and Mulazim Hussain and on this Mulazim Hussain abused him. He narrated the facts to his father co- accused Fateh Mohammad. They therefore went to the shop of P. W. Ghulam Hussain and told him as well as Mulazim Hussain that they should not abuse them unnecessarily on which they became furious and both of them caused lathi blows to Alidino, who was rescued by his brothers i.e. Machhi Khan, Samano and Khush Mohammad Alidino has also filed his F. I. R. Against P. Ws. Mulazim Hussain and Ghulam Hussain who have been challaned in the counter-case which was pend--ing against them. All the appellants figured as P. Ws. Against them. They have also stated that they have been falsely implicated in this case on account of the above case. The true copies of the F. I. R. And challan have been produced as Exhs. 37 and 38 respectively. 6. There is no doubt that the complainant Ghulam Sarwar, P. Ws. Mulazim Hussain, Ghulam Hussain and Zamir Hussain have received injuries at a time and place as stated in the F. I. R. Dr. Khalid Latif, Medical Officer, Ranipur, who has provided treatment to the injured has been examined and he has deposed as under:- "On 9th July, 1976, I was M. O. At Ranipur on that day A. S. I., Ranipur sent letter No. A dated 9th July, 1976 alongwith injured Mulazim Hussain son of Khan Mohammad Solangi by caste. He sent me the above injured persons for examination treatment and certificates. I, on the same day and date gave the treatment after examination, and issued the certificate on 10July, 1976. I found the following injuries on the body of Mulazim Hussain. (1) An incised wound 6--" x 1--" x skin, muscle and left frontal bone and bone of the roof of left orbit deep with the conjunctive or left eye-ball deep. The wound starting from the left frontal part of scalp down to the left nostril of the nose. The brain contained clotted blood. Note,-The injured came in the state of unconsciousness and became in the state of consciousness after receiving the treatment in the hospital. Nature of injury was dangerous. Probable duration of injury was about four hours. The kind of weapons used was sharp cutting weapon like a hatchet. He was referred to Civil Surgeon, Civil Hospital, Khairpur just after giving him the treatment on the same day, dying declaration was recorded by III Class Magistrate (Head Munshi) Gambat, on 9th July, 1976. I produce the certificate (Exh. 9), it is same, correct and bears my signature. On the same day, A. S. I. Also sent injured Ghulam Sarwar son of Khan Mohammad for examination, treat--ment and certificate. I examined him and found the following injuries:- (1) A bruise 1' x 3/4" at the right-parieto occipital part of scalp with a swelling. (2) A swelled bruise 2" x 3/4' at the lower third of left fore-arm. (3) A swelled bruise 4--" x 3/4' at the right fore-arm (suspected bone fractured). (4) A bruise 62 x 12 at the front of right chest below the right axila.th th
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Nature of Injuries No.1 simple, No. 2 simple, No. 3 reserved and No. 4 simple. Probable duration of injuries was about four hours. Kind of weapon used in all the four injuries was blunt like lathis. Note.---Nature of injury No, 3 was kept reserved till the X-ray was received from Civil Surgeon Civil Hospital, Khairpur. Injured was sent for X-ray of injury No. 3 on the same date after giving the first aid. I issued certificate on 10July, 1976 I produce (Exh. 10) it is same correct and bears my signature. I received, X-ray plate of injured Ghulam Sarwar son of Khan Mohammad on right fore- arm (A. P. And pellet) bearing No. 1932 dated 9th July, 1976 on 13th July, 1976. The report reads, "bone of the right fore--arm are intact". Hence the nature of Injury No. 3 is simple. I produce the report (Exh. 11) it is same, correct and bears my signature. On the same day A. S. I. Also sent injured Ghulam Hussain son of Ghulam Kasim for examination, treatment and certificate. I examined him and found the following injuries on his body. (1) An incised wound 4" x 1' and skin and muscle deep in the middle of both parieto occipital part of scalp. (2) An incised wound 5--" x 3/4" x skin and muscle deep at the occipital part of scalp above the external occipital pertuberance. (3) A grushed bruise 1-3/4" x 1--" at the right scapular region. (4) A bruise 10" x 1--' starting from the superior part of left shoulder-joint to the right scapular region. (5) A lacerated wound 1' x --" and skin deep at the frontal part of scalp. Nature of injuries from Nos. 1 to 6 was simpld, probable duration was 3--' hours, kind of weapon used for Injuries Nos. 1 and 2 was sharp cutting weapon like a hatchet for injury Nos. 3, 4 and 5 was blunt weapon like lathi, I produce certificate (Exh. 12), it is same correct and bears my signature. On the same day A. S. I. Also sent injured Zamir Hussain son of Machando for examination treatment and certificate. I examined him and found the following injuries on his body:- (1) A swelled bruise 3J" x 2J' at the back of right band palm. Nature of only injury was simple, probable duration was about four hours, and kind of weapon used was blunt. I produce such certificate (Exh. 1) it is same, correct and bears my, signature. I did not receive the report as to for how many days the injured Mulazim Hussain remained and got the treatment in the Civil Hospital, Khairpur, and injured Ghulam Hussain son of Ghulam Kasim received the treatment in the Hospital at Ranipur." 7. The points for determination are as to what offences have been committed and by whom 7 And also whether all the appellants are equally liable? In this regard, the prosecution has led the evidence as stated above. 8. The ocular testimony consists of the complainant Ghulam Sarwar, his brother Mulazim Hussain, brother-in-law Ghulam Hussain, his cousin Zamir Hussain and Alidino who is closely related to them. They have all stated before the trial Court that all the accused came to the shop of Ghulam Hussain (injured) at about 9-00 p. m. And Fateh Mohammad abused them and instigated the other accused who are his sons to strike at the complainant party and not to spare them, whereupon they inflicted injuries to Ghulam Sarwar, Mulazim Hussain, Ghulam Hussain and Zamir Hussain. They have supported each other for receiving injuries at the hands of the accused. 9. The motive as stated by the complainant in F. I. R. Is that the accused are loafers who reside at a Call's distance from them. Time and again they pass by their houses bare-headed. They asked them that there was no general passage in front of their houses and therefore they should not walk bare-headed there. There have been altercations 2 or 3 times on it. It was on the day of incident when at about noon-time Mulazim Hussain (injured) asked Machhi Khan (accused) not to pass from there whereupon there was an altercation between them. Machhi Khan after extending threats of murder to him went away. It was about 9-00 p. m. When the accused went to the shop ofth
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Ghulam Hussain and asked the complainant party as to why they were charged by them as "loafers", and therefore they would not spare them. This resulted in the present incident. 10. Ghulam Bakar and Ghulam Kambar, mashirs for recoveries of blood-stained clothes and production of lathis and hatchets have support--ed the respective recoveries of clothes, lathis and hatchets from the accused. 11. The injuries pan person of complainant Ghulam Sarwar as well as injured eye-witnesses Mulazim Hussain, Ghulam Hussain and Zamir Hussain have been proved through medical evidence adduced by Dr. Khalid Latif as stated above. 12. The circumstance of injuries on person of the accused Alidino has been proved through the evidence of Dr. Khudadad Abro, Medical Officer, Hingorja who has been examined and he has deposed as under:- "On 9th July, 1976 I was Medical Officer, Hingorja when H. C. P. P. Hingorja, sent the injured /accused Alidino to me for treatment and certificate. I examined him on the same day at 1-00 a.m. And found following injuries on his person:- (1) One lacerated wound 2" x 1/4" scalp deep on left parietal region of the skull. (2) One laceration 3' x --" surrounded by swelling 4' x --" on left side back of the chest below and lateral to the inferior angle of the scapular bone. (3) One swelling 2" x --" on left sygomatic region of the face. (4) One lacerated wound --" x --" skin deep surrounded by swelling: 3" x --" on palneer surface of the thumb of left band at lower one third. (5) One laceration --" x 1/6" on plumar surface of the thumb of the left hand at middle one third. (6) One laceration 2" x --" on right lower leg, calf muscle region posterior surface. Nature of Injuries Nos. I to 5 were kept under observation for want of X-ray examination the Injury No. 6 was declared to be simple in nature. All the injuries appeared to have been caused by some hard and blunt substance such as lathi or back side of hatchet. All injuries were about 5/6 hours old at the time of examination. I issued such certificate which I have produced in counter-case, State v. Mulazim Hussain and others under section 325, P. P. C. At Exh. 16. Now I produce simple copy of it as (Exh. 33) I received X-ray report and on basis of that I issued final certificate declaring the nature of Injuries Nos. 1, 2, 3 and 4 as simple and injuries Nos. 5 and 6 as grievous. I have produced final certificate in counter-case of Mulazim Hussain and others under section 325, P. P. C. As (Exh. 17) 1 produce simple copy of it as (Exh. 34)." 12. Mr. Azizullah K. Shaikh, the learned counsel for the appellants has contended that there is no denial of the incident as it is being admitted by both the parties. Moreover there are injuries on as many as four persons on the side of the complainant and one on the side of the accused. The accused Alidino has suffered grievous as well as simple injuries for which counter F. I. R., has been registered on the same day at P. P. Hingorja of same police station and the police has sent up injured eye-witnesses Mulazim Hussain and Ghulam Hussain to stand trial in the same Court under sections 325 and 323, P. P. C. Though both being counter-cases, could have been tried together as it would have facilitated the trial Court to arrive at true position of the incident but the trial Court preferred to try this case and the counter-case based on F. I. R., of the accused Alidino was pending before the trial Court. He has also pointed out that the incident is admittedly of dark night and possibility of mistaken identity cannot be ruled out. There is also no independent witness to corroborate the version of the prosecution in spite of the fact that many people had come during and after the incident. Moreover whole family of the accused is implicated by the complainant party as the accused Fateh Mohd. Is father of the remaining four accused who is himself 75 years of age. The act assigned to him is such which cannot be believed under the circumstances of the case. It has also been contended that there was no intention on part of any of the accused to kill any one as the incident is without any premeditation. The accused party had gone only with a view
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for settlement of the issue as P. W. Mulazim Hussain prevented the accused Alidino from passing by his house and labelling him as well as his brothers and father as loafers. But the P. Ws. Mulazim Hussain and Ghulam Hussain became furious and caused lathi injuries to Alidino which flared up the matters and it took the shape of free fight. Therefore each accused is responsible for his own act. The P. Ws. Have assigned specific parts to the accused in order to make each one liable for punishment. 13. The learned counsel has also contended that in spite of the fact that there are four injured on the side of the complainant but injuries on person of all of them are simple except of course one injury on person of P. Ws. Mulazim Hussain which is grievous and has been specifically attributed to accused Machhi Khan. Though this blow has been attributed to Machhi Khan but it is worth consideration that there is only one blow. If Machhi Khan intended to kill him, there was nothing to prevent him from repeating another blow. The injured eye-witnesses have specifically given parts to the accused for their injuries. But they are not honest in admitting as to who, out of them, inflicted injuries on person of the accused Alidino. It has been on the contrary stated by them that injuries on person of Alidino were caused by his own brother i.e. Accused Samano. It is therefore clear that they do not speak truth, and suppress the actual facts of the incident and have stated only what suited them for the purpose of their case. Therefore it cannot be determined particularly when the counter-case was not tried together with this case as to who out of both parties is aggressor. The circumstances of the incident suggest that it's a case of free fight and each of the accused is liable for his own act. The learned counsel has lastly contended that the place of incident is situated near P. P. Hingorja which is only at a distance of three miles from there. The accused Alidino lodged his report at this police post. The complainant delayed the F. I. R., and lodged it at P. P. Ranipur which is admittedly at a distance of six miles from the scene of offence obviously for the reason that a man of their ---brothery" was posted there as Incharge A. S. I. Who has implicated every male member of the family by assigning specific parts to them. 14. Mr. Abdul Haleem Brohi, the learned counsel who is appearing on behalf of the State on the other hand has contended that there is strong- motive for the appellants/accused who after having formed unlawful assembly in prosecution of the common object of that assembly have inflicted injuries on person of the complainant party. He has also contended that specific parts have been assigned to each one of them as all of them have actively participated in the fight. Therefore all of them are equally guilty. He has very clearly contended that it's not a case of free fight as all of them have come to the shop of Ghulam Hussain with common object of committing offence. He has supported the judgment of the trial Court. 15. I have heard the learned counsel for the appellants as well as State. I have considered their contentions and have also carefully examined the evidence on record. Though there is no absolute rule that counter---cases arising out of the same incident must be tried side by side till their conclusion and judgment in each case be pronounced simultaneously. But it is general practice to try such cases side by side as it is more desirable and facilitates the trial Court to appreciate the evidence in a better way to arrive at true position of the cases. There could be departure from such practice of facts of a particular case. As far as facts of this case are concerned there existed no such circumstances for having not tried both the cases side by side. However there is no illegality if the counter-cases arising out of the same incident are not tried side by side as in this case also. But the trial Court has been deprived of better appreciation of evidence which was only possible if both, the cases were tried side by side as observed above. 16. The incident is admittedly of a dark night still efforts are made to give specific parts to each accused for injuries on person of the injured eye-witnesses. This enthusiasm on part of the complainant party has created a room for consideration if all of them are really speaking truth. For instance Fateh Muhammad (accused) who is father of the other four appellants and is shown to
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be 75 years of age in his statement recorded under section 342, Cr: P. C., has been given a part of chasing P. W. Mulazim Hussain (injured) and actually catching hold of him and facilitating his son Machhi Khan to give him a hatchet blow. This is simply not possible for an old man to chase a young man like Mulazim Hussain (injured) who is 32 years old and was running away from the place of incident. This Fateh Mohammad is initially assigned a role of abusing the complainant party, instigating accused, inflicting a lathi blow on P. W. Zamir Hussain, following Mulazim Hussain and catching hold of him in the F. I. R. By the complainant. But the complainant in his deposition before the trial Court has added a part of inflicting lathi blows to him as well along with the accused Samano. The part of giving blows to P. W., Zamir Hussain is assigned to accused Samano by P. W. Mulazim Hussain before the trial Court. It is very interesting to note that there is only one injury on person of P. W. Zamir Hussain which is a swelled bruise at the back of right hand palm and simple in nature. He has also said that Fateh Muhammad gave four blows to Ghulam Sarwar whereas Samano gave him only one blow. Ghulam Sarwar himself says that Fateh Muhammad gave him one blow and Samano gave four blows to him. The medical evidence shows in all four injuries on his person. It is very strange to note that the complainant Ghulam Sarwar on one hand says in cross-examination that Fateh…
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