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Petitioner: BAKHSHAL and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Qaisar Ahmed Hamidi, Syed Sajjad Ali Shah Title: BAKHSHAL and others vs THE STATE Case No.: Criminal Appeal No. 132 and Confirmation Case No. 6 of 1988 Date of Judgment:1988-12-21 Reported As: 1990 P Cr. L J 1 Result: Order accordingly
JUDGMENT
JUDGMENT ' SAJJAD ALI SHAH, J.--- This appeal is directed against judgment, dated 16-8-1988 of learned Sessions Judge, Khairpur, whereby three appellants named above, have been convicted under section 302/34, P.P.C. And sentenced each to death and a fine of Rs.5,000 or in default R.I. For one year. Each appellant is further ordered to pay compensation of Rs.10,000 to the heirs of deceased or in default to suffer R.I. For six months. Appellant Bakhshal is further convicted under section 13(E) of Arms Ordinance and sentenced to R.I. For three years and a fine of Rs.1,000 or in default R.I. For six months. Appellant Jani is further convicted under section 324, P.P.C. And sentenced to R.I. For one year and a fine of Rs.1,000 or in default R.I. For six months. He is further ordered to pay compensation of Rs.1,000 to injured Mst. Waziran or in default to suffer R.I. For six months. There is also reference under section 374, Cr.P.C. For confirmation of death sentence of all three appellants and we propose to dispose of both appeal and reference together by one single judgment. ' Prosecution case as depicted in F.I.R. And briefly stated is that on 20-61986, which was Friday deceased Atta Muhammad and his wife Mst. Nazeeran went from Khairpur Town to the house of their relative Inayat Ali son of Khamiso Gopang in village Trodi within the jurisdiction of P.S. Kotdiji to congratulate as he and his wife were blessed with a son. After lunch, while deceased Atta Muhammad, Mst. Nazeeran, Panjal, Mst. Allah Bachai, Inayat Ali and his wife Mst. Waziran were chit- chatting, all the three appellants named above, entered the house. Appellant Bakhshal had pistol, Jani had knife and Shah Wali was armed with Lathi. They caught hold of Atta Muhammad from collar, slapped him and dragged him outside. Witnesses also came out and from them ladies brought Qur'an Sharif and entreated but paying no heed, Bakhshal fired at Atta Muhammad and further he was given knife blows by Jani and Lathi blows by Shah Wali. Jani also gave knife blow to
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Mst. Waziran on the left side of her abdomen. Atta Muhammad fell down injured and bleeding and thereafter appellants ran away raising slogans that they had taken revenge of their relative Ghulam Muhammad, who was murdered about 115 years ago by Atta Muhammad. After departure of appellants from the spot, witnesses went near and found Atta Muhammad lying dead. Mst. Nazeeran wife of deceased accompanied Inayat Ali went to Police Post Kumb at a distance of five miles, where she lodged report, which was entered in daily diary. It is mentioned in the report that Atta Muhammad had been murdered by appellants named above in consequence of conspiracy with Ali Nawaz alias Nazoo son of Kamal and Tajoo son of Ghulam Muhammad both Gopang. ' A.S.I. Nazamuddin entered report in Roznamcha register vide entry No.5 on the same day at 4 p.m., sent a copy to Police Station Kotdiji and then proceeded to the scene of offence. He saw dead body of Atta Muhammad and recovered from the spot blood-stained earth and broken piece of Lathi. He prepared inquest report and dispatched the dead body to the hospital for post-mortem examination. He prepared Mashirnama of injury of Mst. Waziran and sent her to the hospital. He recorded statements of Mst. Allah Bachai and her son Inayat Ali. He also recorded statement of Mst. Waziran. He searched houses of appellants but could not arrest them as they were not there. On 23-6-1986 he recorded statements of P.Ws. Panjal and All Hassan. On 26-6-1986 he arrested all the three appellants from the house of MevoGopang in village Dadri. Appellant Bakhshal while in custody led to the recovery of revolver from the root of the palm tree which was surrounded by bushes in the house of Mevo. It was put into sealed parcel. Case was registered against Bakhshal for keeping unlicensed revolver. Appellant Jani, while in custody, led to the recovery of knife from the roof of the house of Mevo and that knife being stained with blood was put into sealed parcel. On 28-6-1986 I.O. Produced P.Ws. Inayat Ali, Panjal, Mst. Waziran, Mst. Allah Bachai, All Hassan, Shahmir and Taro before Mukhtiarkar and F.C.M. Kotdiji who recorded their statements under section 164, Cr.P.C. After completing other steps of investigation, this witness handed over papers of this case to A.S.I. Muhammad Khan, Incharge Police Station Kotdiji, who presented challan in The Court. ' In the trial Court, prosecution has examined 11 witnesses in support of its case. From them four are eye-witnesses namely P.W.1 Mst. Naziran, P.W.2 Mst. Waziran, who was injured, P.W.3 Inayat Ali and P.W.4 Panjal. Prosecution has examined P.W.5 Muhammad Nawaz, Tapedar, who prepared sketch of Vardat Exh.13-A on 15-1-1987. P.W.6 is Dr. Mumtaz Hussain, who conducted post-mortem examination on the dead body of Atta Muhammad on 20-6-1986. He found 6 stab wounds, one bruise on right lumber region and one penetrating type of inlet wound on abdomen cavity deep with blackening and tattooing on the dead body. According to the doctor death was due to injuries caused by sharp cutting weapon and fire-arm. This doctor also examined Mst. Waziran and found on her person one stab wound on the left lumber region of abdomen. Injury was simple caused by sharp cutting weapon. ' P.W.7 is Khuda Bux Mashir, who attested and produced Mashirnama of Vardat Exh.15-A, inquest report Exh.15-B and Mashirnama of injuries of Mst. Waziran Exh.15-C. P.W.8 is Constable Muhammad Ali, who is corpse-bearer. P.W.9 is Mashir Shamir, who attested and produced Mashirnamas of arrest Exh.17-B, and of recovery of revolver and knife Exh.17-C. Prosecution has examined P.W.10 Muhammad Khan and P.W.11 Nizamuddin as Investigating Officer of this case. Prosecution has produced report of Chemical Examiner Exh.19-B according to which earth and knife were found to be stained with human blood and closed its side. ' In the trial Court, appellants in their statements under section 342, Cr.P.C. Denied prosecution allegations and proclaimed innocence and false implication due to enmity. Appellant Bakhshal examined himself on oath. Appellant Bakhshal stated that deceased Atta Muhammad was married to Mst. Alam Khatoon, who sought divorce from the Court and married Kadir Bux who was uncle of Bakhshal. Bakhshal also admitted that Shahwali is his cousin and Jani is his Phuphat. This appellant
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further disowned relationship or acquaintance with Ghulam Muhammad. He stated that all appellants were arrested on 20-61986 and specified relationship inter se of witnesses. No other witness was examined on oath. ' We have heard at length Mr. Muhammad Hayat Junejo, Advocate for appellants and Mr. Jalaluddin Baloch for A.-G., Sind for State. In the trial Court prosecution relied upon ocular evidence, recoveries, ,iotive and medical evidence to prove the case. For the purpose of appraisal of evidence in appeal, we first take up ocular evidence. In this connection the first and the most immediate version of incident is given in F.I.R. By complainant Mst. Naziran, who is eye-witness and wife of deceased Atta Muhammad. This F.I.R. Is lodged within one hour of the incident at Police Post Kumb, where it was entered in Roznamcha. Distance between Police Post Kumb and spot is about 5 miles. It is mentioned specifically in F.I.R. By complainant that her husband had been murdered as a result of conspiracy of Ali Nawaz alias Nazoo son of Kamal and Tajoo son of Ghulam Muhammad Gopang, who were responsible for getting this murder committed. No effort was made by prosecution to prove this fact or produce any evidence in support of this assertion. Neither conspirators named above were challaned, nor complainant said a word again against them in her evidence in the trial Court. To this extent it is open to presume that complainant made false or incorrect statement in F.I.R. ' In the trial Court complainant furnished ocular evidence as P.W.1. Narrative of incident in her examination-in-chief gives impression that at the time of incident she, Mst. Waziran and deceased were sitting and conversing in the house when three appellants walked in. According to the complainant after lunch while they were sitting and chatting in Verandah, appellants came there. Bakhshal was armed with revolver, Jani had knife/dagger and Shahwali had Lathi. They caught hold of her husband by collar and dragged him out of the house. She and Mst. Waziran took Holy Qur'an and came out to plead with appellants. In their view Bakhshal fired from his revolver at her husband, who became injured and then Jani gave him knife blows, while Shahwali gave him Lathi blows. Mst. Waziran also received knife injuries at the hands of Jani. After departure of appellants, complainant saw that her husband was lying dead. After finishing the whole story of incident complainant added that P.Ws. Inayat Ali, Panjal and Mst. Allah Bachai were also present at the spot and saw the incident. In cross- examination complainant became specific and stated that Shahwali gave her husband only one Lathi blow to make it consistent with medical evidence. She was confronted with F.1.R. In which she had stated that Shahwali gave her husband Lathi injuries. Complainant improved her statement in cross-examination and stated that with one blow Lathi got broken. She was confronted with F.I.R. Wherein she had not stated so. In trial Court complainant stated that Bakhshal was armed with revolver, while in F.I.R. She stated that Bakhshal was armed with pistol. With all these infirmities in the evidence of complainant, as stated above, we are prepared to hold that she was present in the house at the relevant time for the reason that her presence is well-accounted for by the fact that she filed F.I.R. Promptly at the police post within one hour, which is a recorded fact. Distance between police post and spot is five miles. Complainant has explained that she went on foot with Inayat Ali one mile then hired Suzuki Van from Fakir mill and then proceeded in it to the police post. Complainant is interested witness because she is wife of deceased and in F.I.R. Enmity is alleged that this murder was committed by way of vendetta of previous murder of Ghulam Muhammad, who was related to the appellants, allegedly committed by deceased. In the circumstances, I shall accept her evidence as eye-witness only when there is independent corroboration in this case. It is held by Supreme Court of Pakistan in the case of Ahmed and others v. State 1982 SCMR 1049 that independent corroboration is not only necessary in the case of interested witness but also where ocular testimony by itself is not so sound and doubt-free as to independently suffice for conviction.
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' Likewise presence of eye-witness Mst. Waziran at the spot at the time of incident is well- accounted for on the ground that she was injured in the incident and her injuries are medically proved. She is also a natural witness for the reason that incident took place outside her house. At the same time she is interested witness also for the reason that she is wife of Inayat Ali, who is closely related to the deceased as claimed by this witness in her deposition. Intrinsic worth of evidence of this injured eye-witness is still to be determined in the light of infirmities and discrepancies in her evidence in order to find out whether she has spoken the truth and can be relied upon without corroboration. ' In the trial Court examination-in-chief of this witness P.W.2 Mst. Waziran is almost same as of P.W.1 Mst. Naziran and in the same manner after narration of story of incident she has mentioned at the end that at the time of incident Inayat Ali, Panjal and her mother-in-law Mst. Allah Bachai were present and they also saw the incident. Slid has made a false claim in her deposition that in Ranipur hospital she was admitted and treated for 15 days. On the other hand, P.W.6 Dr. Mumtaz Hussain, who examined her testified in the Court that her injury was simple and after treatment she was discharged on the same day and she never came again to the hospital. In her evidence she stated that Shahwali gave 5-6 Lathi blows to Atta Muhammad. This assertion is belied by the doctor, who had deposed that deceased had sustained one bruise 6 c.m. x 1 c.m. On right lumber region of abdomen. This witness further stated that Lathi was five feet long and two inches in diameter. She further demonstrated that Lathi was as thick as wrist of her arm. Parcels of case property were got opened and Lathi was seen. It was a small about one foot long broken piece of Lathi covered by brown skin of animal. It was not as thick as wrist of even a young lady as claimed by this witness. Both the counsel present stated that it was a piece of bamboo Lathi. Two reasons go against the claim of this witness. Firstly if the Lathi was five feet long and broke by the impact of blow, then it should have broken from the middle and the piece recovered from the spot should have been about 2-1/2 feet instead of about one foot. Secondly as per post-mortem report bruise 6 c.m. x 1 c.m. Was on lumber region of abdomen as such it is not probable that Lathi could get broken if struck at such soft part. Normally Lathi can get broken if it is struck on hard part of human body like skull or bone part or other part with thick muscle but then impact of injury would also be more severe and not a bruise. ' Injured eye-witness Mst. Waziran also testified before the trial Court that on the day of incident police only enquired from her whether Atta Muhammad was related to her and who caused injuries to her and what were the names of assailants. She specifically stated that police did not ask her further questions. By saying so she gave the impression that her full and detailed statement was not recorded by the police for the reason that she was so seriously injured that she had to be admitted in the hospital for 15 days. As against that P.W.11 A.S.I. Nizamuddin deposed in the trial Court that on the day of incident at the spot he prepared memo. Of injury of Mst. Waziran and recorded her statement and sent her to the hospital. Mst. Waziran also claimed in her evidence that she was sent to Ranipur hospital along with deceased in the same police van and both were examined by the doctor at the same time. Investigating Officer Nizamuddin stated in his evidence that he sent deceased and injured Mst. Waziran to the hospital separately. P.W.8 Muhammad Ali Corpse-bearer stated in his evidence that he took dead body to the hospital from the spot and denied categorically that he also took injured witness to the hospital. In the evidence of doctor and post-mortem report time of arrival of dead body in the hospital is not mentioned but it is stated specifically that post-mortem was performed at 9 p.m. About Mst. Waziran doctor stated positively that he received her in the hospital for treatment at 5 p.m. This clearly shows that injured eye-witness Mst. Waziran spoke lies in her statement on oath caring very little for the sanctity of truth even on oath.
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The fact that eye-witness sustained injuries at the time of incident, which are medically proved would show beyond dispute presence of such witness at the spot at the time of incident but this does not necessarily prove that such eyewitness has spoken the whole truth. If evidence of such witness suffers from infirmities or contains inconsistencies or lies, then evidence of such injured eyewitness cannot be implicitly relied upon unless there is independent corroboration available on the record to supplement it, This view finds support from cases Saeed Ahmad v. Zammured Hussain and others 1981 SCMR 795 and 797, Sahib Masih and others v. State 1982 SCMR 178 and 183-D and Abdul Hameed and another v. State 1985 P Cr. L J 1992 and 2000. ' Now I take up evidence of remaining two eye-witnesses namely P.W.3 Inayat Ali and P.W.4 Muhammad Panjal. It may be recalled as stated in earlier part of this judgment that Mst. Waziran wife of P.W. Inayat Ali had stated in the opening part of her deposition that deceased Atta Muhammad was closely related to her husband. This fact is denied by P.W.3 Inayat Ali, who has contradicted his wife by saying that deceased Atta Muhammad was only on visiting terms with him and he knew him since his childhood. This witness Inayat Ali pretended that he did not remember name of father of deceased but when it was suggested by defence counsel in cross- examination that the name of father of deceased was Abdullah, the witness agreed with him. This witness then admitted in his evidence that his wife Mst. Waziran is related to Mst. Naziran wife of deceased and Mst. Naziran used to visit his house frequently like a family member. He also admitted that other name of Mst. Naziran is Razul. He then claimed that he did not know name of father of Mst. Naziran and when it was suggested by the defence counsel that it was Kaiser, the witness persisted that he did not know. ' Version of incident as given by this eye-witness Inayat Ali is different from version given by two lady eye-witnesses mentioned above. According to lady eye-witnesses all appellants came inside the house, caught hold of deceased by collar, gave him slaps and dragged or pulled him outside the house, where Bakhshal fired at him from his revolver then Jani gave him knife blows and Shahwali gave him Lathi blows. Version of this eye-witness is that when appellants entered the house, Shahwali was armed with knife and again said Shahwali had a Lathi. Jani caught hold of Atta Muhammad by neck and gave him knife injuries and then dragged him out of the house. Outside Bakhshal fired at Atta Muhammad from revolver at his chest and then Jani and Bakhshal gave knife blows to Mst. Waziran. After giving injuries to Mst. Waziran, Jani gave knife injuries to Atta Muhammad. Shahwali also gave Lathi blows to Atta Muhammad, who died at the spot. Appellants ran away raising slogans that they had taken revenge of murder of their uncle Ghulam Muhammad, which took place 15 years ago. Obviously version of incident given by this witness is in contrast with version of lady eye-witnesses. According to this witness half of incident took place inside the house and knife injuries were given to deceased by Jani inside the house and thereafter Atta Muhammad was dragged out. After knife injuries Atta Muhammad is expected to fall down wounded and bleeding but neither dragging marks were found nor trail of blood was found inside the house as per Mashirnama of Vardat Exh.15-A. Even Mst. Waziran also does not say that she was given knife injuries by Jani and Bakhshal jointly as according to her and Mst. Naziran Bakhshal was not armed with knife and he was attributed role of firing one shot from revolver at Atta Muhammad and that too in the beginning outside the house at the start of attack. ' If evidence of Inayat Ali is read in juxtaposition with evidence of eye- witnesses Mst. Waziran and Mst. Naziran, unavoidable impression would appear to the effect that Inayat has not seen the incident and was not present at the spot. He was probably working in the shop of Haji Shall Muhammad in Fakir Mill area, where Mst. Naziran went on foot after incident and took him in Suzuki Van which was hired from there to Police Post Kumb. It is admitted by Inayat Ali in his cross- examination that Mst. Naziran is related to his wife Mst. Waziran and used to visit his house frequently like a family member. In such circumstances, she is expected to know where he worked
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and could walk small distance of one mile to take him to the police post. If Inayat Ali was present at the spot and had seen the incident as claimed by him, then in all probability he would have himself filed report instead of assigning this role to a lady, even if she was wife of deceased. P.W. Inayat All does not claim that his police statement was recorded at the police post. If he had seen the incident he would have asked Investigating Officer to record his 161, Cr.P.C. Statement at the police post. P.W.1.1 Nizamuddin, Investigating Officer has not said in his evidence that when Mst. Naziran came to police post, she was accompanied by P.W. Inayat Ali. He further stated that after writing the report he proceeded to the Vardat accompanied by complainant Mst. Naziran. In fact perusal of Mashirnama of Vardat Exh.15-A also shows that Wardat was pointed out by complainant Mst. Naziran. Wardat could have been pointed out by Inayat Ali because incident took place inside or outside his house and Mst. NaZiran was only a guest. I, therefore, view this assertion with doubt that Inayat All accompanied Mst. Naziran to the police post and if he did that then he had not seen the incident, that is why he did not offer to lodge report himself or point out Vardat himself and deliberately kept a low profile. Record shows that police statement of Inayat Ali was recorded on 20-61986 at the spot. ' Eye-witness Inayat Ali also stated in his evidence that Bakhshal fired several shots but only one shot hit Atta Muhammad but then no .Crime empty was recovered from the spot. He also stated that after firing-no body caused any injury to Atta Muhammad. This assertion is opposed to the version of lady eyewitnesses. This witness further claimed in his evidence that his wife injured Mst. Waziran remained admitted in the hospital for 15 days. He also asserted that Lathi was two meters in length and was 2-1/2 to 3 inches thick. Evidence of this witness does not inspire confidence and is ruled out of consideration. ' Last eye-witness examined by the prosecution is P.W.4 Muhammad Panjal. He has admitted that he is Phosphate of Inayat Ali and deceased Atta Muhammad was also related to him. His version of incident as stated in his evidence is same as that of lady eye-witnesses. According to him deceased was caught hold by neck by slapped and taken outside the house and then Bakhshal first fired from his revolver at Atta Muhammad and then Jani gave him knife blows and then Shahwali gave him Lathi blows. Jani also gave knife injury to Mst. Waziran. He has stated that police recorded his 161, Cr.P.C. Statement after 8 days of incident. According to Investigating Officer Nizamuddin, he recorded police statement of Panjal on 23-6-1986. This witness deposed that after incident he went to Sobho Dero to inform brother of deceased as asked by complainant. He went there and came back same evening and then went to the hospital and brought back dead body. In such circumstances, his statement could have been recorded on the same day of incident or on the following, day. There is no satisfactory explanation for delayed recording of police statement of this witness. If there is considerable delay in recording of 161, Cr.P.C. Statement of a witness and delay is not satisfactorily explained then it would be open to adverse inference that delay was used to bring statement of that witness in line with prosecution case. Evidence of such witness cannot be given sanctity as is generally given to the evidence of a witness whose statement is recorded promptly without delay. Reference can be made to the case of Asfandyar v. State PLD 1978 Pesh. 38. ' Now so far ocular evidence is concerned, it would appear that evidence of all the four eye- witnesses is deficient quality-wise and suffers from such serious shortcomings and infirmities that it cannot be accepted and relied upon unless there is independent corroboration. I have ruled out of consideration evidence of P.W. Inayat Ali. Evidence of remaining three eye-witnesses is also unsatisfactory and does not inspire confidence for reliance without corroboration. It is settled rule now that one tainted piece of evidence cannot corroborate another tainted piece of evidence, so I am not allowed to say that one eye-witness would corroborate the other.
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' For the purpose of corroboration, medical evidence is not of much help for the reason that it does not provide corroboration qua accused. It may support assertion as to what injury was caused with what weapon but not the fact as to which accused caused what injury. Apart from that there is conflict between ocular evidence and medical evidence on one important point. All eye-witnesses except Panjal stated in the trial Court that incident took place immediately after lunch and deceased also took lunch. As against that finding of the doctor in the post-mortem report is that stomach of deceased contained semi-digested food and watery fluid. Finding of the doctor has given a lie to the assertion of eyewitnesses. In such circumstances of conflict,…
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