Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: RASOOL BUX AND 9 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Ali Nawaz Budhani Title: RASOOL BUX AND 9 Others vs THE STATE Case No.: Criminal Appeal No. 11 and Criminal S. M. Revision No. 4 of 1982 Date of Judgment:1982-05-30 Reported As: 1983 P Cr. L J 144 Result: Order accordingly
JUDGMENT
JUDGMENT ALI NAWAZ BUDHANI, J.-This is an appeal directed against the judgment and sentence recorded by the learned Additional Sessions Judge, Dadu on 4th January, 1982. The ten appellants (1) Rasul Bux son of Saleh, (2) Ghulamoon son of Sharif, (3) Ahmed son of Sharif, (4) Rasulo son of Faiz Muhammad, (5) Gul son of Saleh (6) Aliahdino son of Kauro (7) Arab son of Bachoo, (.8) Adlu alias Abdul Karim son of Usman (9) Allahdino son of Tajo and (10) Yousif son of Wali Muhammad were sentenced under section 148, P. P. C. To R. I. For one year and fine of Rs. 100 in default to suffer R. I. For one month. They were further sentenced to transportation for life and fine of Rs. 3,000 in default R. I. For one year under section 302 read with section 149, P. P. C. They all further were sentenced under section 325 read with 149, P. P. C. To R. I. For two years and fine of Rs. 200 in default to two months' R. I. They were also fined Rs. 200 each in default to two months' S. I. Under section 323 read with 1.49, P. P. C. 2. It may be stated that all the appellants belong to one caste of 'Panhwars' while the other party who suffered injuries at the hands of appellants, were Machhis by caste. The reason which prompted the two factions to involve in the act of violence is that two Panhwars by name Adlu and Gul had teased the women at the well near the village of Machhis and that due to this, Jumo and Hussain Machhis bad exchanged harsh words, with them. 3. The incident took place on 4th April, 1971 at 11 a. m. And the matter protracted for about 10 years till it ended into the impugned judgment recorded by the learned First Additional Sessions Judge, Dadu. 4. The prosecution story can best be related by reproducing the translation of the F. I. R. Filed by Mohammad Usman at 11-30 a. m. At Bhan Police Station: -
---
## Page 2
Today I had come with my work to Bhan Town,. Where the P. W. Qasim met me. I and Qasim together went to the hotel of Chhuto Chano and sat for taking tea. My relatives Chhuto son of Faiz Mohammad, Andal son of Lal Mohammad, Jumo son of Panjal and Mohammad Hasan son of Wali Mohammad by caste Machhi also came and sat there. At about 11 a. m. (1) Rasoolo son of Saleh, (2) Gul son of Saleh. (3) Yousuf son of not known, (4) Arab son of not known, (5) Allahdino son of Taj Mohammad Panhwar, (6) Ahmed son of Sharif, (7) Ghulamoon son of Sharif, (8) Adloo son of Usman, (9) Rasulo son of unknown and (10) Dino son of Kauro Panhwar came inside the hotel of Chhuto. Out of them Adlu son of Usma n, Gul son of Saleh and Allahdino son of Tajo were armed with hatchets, whereas the rest were armed with dandas. Yousif Mamani Panhwar, instigated Rasulo and others not to spare Andal and others. On his instigation Arab Panhwar gave danda blows to Andal on his fore-head and other parts of the body, who raised cries and fell down. Rasulo son of Saleh gave danda blows to Chhato Machhi and the other accused gave danda and hatchet blows to Jumo and Muhammad Hasan Machhis. I, Qasim Bhand and other persons sitting at the hotel gave "Hakals" to the accused not to murder the man. Then the accused ran away by the eastern side of Masjid Sharif towards north. I and Mohammad Wasim ran after the accused. When the accused reached the heap of hay grass of wheat of Umar Memon, (1) Wali Mohammad son of Soomar, (2) Hasan son of Soomar, (3) Rasul Bux son of Morio, (4) Gul Hasan son of Umar, (5) Rajib, (6) Haji Sidik son of Umar, (7) Mohammad Hasan son of Wali Mohammad who were working at the. Heap, tried to catch hold of the accused and waylaid them. The accused fought with them all and caused hatchet and danda blows to them and fell them down and then ran away towards west from bus stand. Subsequently Muhammad Khan son of Allahdino and Muhammad Bux son of Ismail Machhi also came on hearing about the quarrel. Thereafter, we removed all the injured to the hospital at Bhan. The accused have left four dandas at the heap of by grass, which I have seen lying there. Yesterday in the evening the accused Ad 1 u and Gul Panhwar passed by a well near my village, where our female folks were taking water and both the accused had teased them. The female folk came and narrated us these facts. At about sunset time Adlu and Gul Panhwar were returning to their village when Jumo son of Panjal and Hassan son of Haji Muhammad abused them and asked them as to why they have teased our female folk and on this they exchanged harsh words. On this account the accused persons, in furtherance of their common object have formed unlawful assembly and have caused injuries to our men with hatchets and dandas with intention to murder them. The injured Andal and Chhato are very serious." 5. A. S. I. Abdul Majid registered the F. I. R. Exh. 8. He proceed--ed to hospital at Bhan where he found injured persons who were, in all, 11 in number, having injuries caused by blunt weapon. The mashirnama to this effect Exh. 14 was prepared in presence of mashirs, Abdullah Shah and Ayub. The same A. S. I. Examined P. Ws. Rajib, Ahmed, Chhato and Andal. He visited wardat and prepared mashirnama in presence of the same mashirs. He secured blood-stained earth. The vardar near the heap of hay grass was also inspected and necessary mashirnama was prepared. At this place four dandas and one `Kanwati' were lying, and the same were secured. He recorded the statement of Mohammad Kasim, Muhammad Bux, Mohammad Khan and Chhuto Chano. According to this A. S. I. He had recorded the statements of injured Rajib, Ahmed, Chhato and Andal but did not record the state--ments of the other injured persons who according to him were not conscious. He handed over the case papers to S. H. O. Gehimal. S. H. O. Gehimal died before his evidence could be recorded in the trial Court and his evidence recorded in the committal Court was brought on record on the application made by A. P. P. He appears to have verified the investigation conducted by A. S. I. Abdul Majid and had arrested appel--lants Rasoolo, Gul, Usif and Arab. They all separately led the police to the recovery of dandas from their respective houses excepting appellant Gul who
---
## Page 3
produced a hatchet. Late S. H. O. Made further inquiries in the matter and subsequently challaned the appellants on 21st May, 1971. 6. The appellants in their statements under section 342, Cr. P. C. Denied the allegations made by the prosecution. Appellant Rasul Bux has further stated that he is involved at the instance of mashir Abdullah Shah with whom he has enmity. According to him complainant Usman and the P. Ws. Are men of Abdullah Shah and that Abdullah Shah got filed false case against him through P. W. Andal prior to this case and bad also falsely implicated him in this case. He has produced the true copy of F. I. R. Dated 26th June, 1961 at Exh. 62 and discharge order at Exh. 63. The other appellants being relatives of Rasul Bux, have adopted the same statement and claimed enmity of Abdullah Shah with them. 7. We have heard the arguments advanced by the learned counsel of appellants Mr. Azizullah Shaikh and Mr. Ghulam Ali Agha for the State. Briefly the arguments of the earned counsel for appellants revolve round the ocular testimony which according to him is interested and inimical and devoid of credibility. There is no independent witness except two witnesses Mohammad Kasim and P. W. Chhuto Chano who both are not lending full support to the other witnesses who belong to the caste of Machhis. The evidence of recovery of crime weapons is discarded by the trial Court. As no blood was found on any of the crime weapon. The prosecution witnesses probably have exaggerated the number of culprits and the P. Ws. Might have involved many innocent persons. Before dealing with the ocular testimony in detail, we would like to refer to the medical evidence in this case. Dr. Mohammad Saleh had examined the 11 persons who were brought to him in injured condition at Civil Hospital, Dadu. He found following injuries on them 1. Chhato son of Faiz Mohammad (1) Lacerated wound 4" x 1/2" scalp deep on the left frontal-parietal region of scalp. (2)Lacerated wound 1" x 1/2" scalp deep on the right frontal region. According to the doctor the patient was unconscious and he succumbed to injuries at 6-30 p. m. Without regaining consciousness. 2. Ahmed son of Jeewan (1)Lacerated wound 2" x 1/4", scalp deep on the left frontal region. (2) Lacerated wound 1" x 1/2" scalp deep on the left occipital region. 3. Jumo son of Pinyal (1) Lacerated wound 2 -- " x 1/2" on left parietal region. (2)Contusion 2" x 2" on back of left hand. 4. Rajib son of Parial (1) Lacerated wound 2 --" x 1/4" scalp deep on the right frontal region. 5. Sidik son of Umar (1)Lacerated wound 4" x 1/2" scalp deep on frontal region. (2) Contusion 2" x 1" on right buttock. 6. Wali Mohammad son of Soomar (1) Contusion 4" x 2" on the middle of the right side of the back. (2) Lacerated wound 2" x 1/2" x 1/2" on the frontal-parieto region 4 the head. 7. Rasool Bux son of Morio: (1) Lacerated wound 2" x 1/4" scalp deep on the right frontal region. (2)Lacerated wound 1 -- " x --" scalp deep on the left occipital region. (3)Contusion 1" in diameter on left elbow. 8. Muhammad Hasan son of Wali Mohammad (1) Lacerated wound 2 -- " x 1/2" scalp deep on front ol-occipital region of the scalp. (2) Lacerated wound 2" x 1/2" scalp deep on middle of the occipital region. (3)Laceration 1" X 1/6" on the back of left elbow.
---
## Page 4
(4)Laceration J" x 1/6" on the back of left elbow. 9. Muhammad Hasan son of Soomar: (1) Contusion 1" in diameter on the left frontal region, (2) Multiple laceration on the left shoulder. 10. Gul Hasan son of Umar. (1) Lacerated wound 1/2" x 1/2" scalp deep on the right occipital region. (2) Lacerated wound 1/2" x 1/2" scalp deep lateral to injury No. 1. 11. Andal son of Lal Mohammad. (1) Lacerated wound 1 --" x 1/2" bone deep on the left side of frontal region causing fracture of the underlying bone. (2) Lacerated wound 1" x 1/2" x 1/2" on occipital region. (3) Lacerated wound 1/4" x 1/2" X 1/2" on the left frontal region, below injury No. 1. (4) Contusion 1" x 1/2" on left iliac crest. (5) Contusion 1/2" x 1/2" behind injury No. 4. According to the medical officer all the injuries were caused with some blunt weapon like lathi or danda and with exception of injury No. 1 on Andal, they all were simple in nature. Injury No. 1 on Andal was certified to be grievous. According to this doctor all the injured persons had reached in the hospital for treatment on 4th April, 1971 at 1-30 p. m. 10. The trial Court has also examined Doctor Ghulam Qadir who had examined Chhato while he was alive and had noticed also one contusion in addition to the two injuries certified by Dr. Mohammad Saleh. He has deposed that after death of Chhato, he performed post-mortem examina--tion on his dead body on 5th April, 1981 at 7-30 a. m. On internal examina--tion be found the following damage :- (1) Clotted blood was present below the scalp over the frontal right parietal and the left parietal region. (2) Extra dural clotted blood present over the right parietal region. (3) Membranes of the brain were congested. (4) Extensive clotted blood was present over the right frontal temporal and occipital surface of the brain. (5) The brain matter was congested. (6) Both lungs were congested. (7) Both sides of heart contained little fluid blood. (8) The stomach contained fluid material and intestines contained faecal matter. 11. In the opinion of this doctor, death of deceased Chhato was due to shock and compression of the brain due to the haemotama as a result of external injuries which were individually as well as collectively sufficient to cause death in the ordinary course of nature. The age of the deceased as recorded in the post-mortem is 45 years. 12. The F. I. R. Was registered at 11-30 a. m. This is the first document recorded and it needs to be analysed closely. Important features in the F. I. R. Are as follows :- (a) Specific role of inflicting injuries is assigned to (1) Rasoolo son of Saleh, causing injuries to deceased Chhato and (2) to Arab causing injuries with dandas to Andal. (b) Remaining 8 appellants gave blows to the remaining injured persons namely Jumo and Mohammad Hasan; it is not specifically mentioned as to who among the remaining appellants caused injuries to them. (c) One culprit Rasoolo's father's name is not given in the F. I. R. And also Mohammad Hassan son of Wali Mohammad figures at the first wardat at the hotel and also in second wardat he came to take tea, and in the second wardat he was working as labourer. Adverting to the ocular evidence, we would observe that there are two sets of eye-witnesses in this case. The first set consists of those who had seen the incident at the hotel of Chhuto Chano and
---
## Page 5
they are complainant Usman, Mohammad Hasan, Mohammad Kasim, Andal and Chhutal Chano. The second set of eye-witnesses relate to the second wardat at the heap of wheat chaff and they are Gul Hasan, Haji Sidik, Rajib, Ahmad Mohammad Hasan, Rasul Bux, Mohammed Khan and Wali Mohammad. We propose to examine briefly the evidence of first set of witnesses concerning the wardat at the hotel of Chhuto Chano. They are complainant Usman, Jumo, Mohammad Hassan, Mohammad Hasan, Mohammad Kasim and Chhuto alias Mohammad, Chhutal Chano. 14. The evidence of complainant Usman is that at about 11 a. m. He and P. W. Kasim Bhand came to the hotel of Chutto Chano and took tea In the meantime Chhato (deceased), Jumo and Hasan also came there to take tea. The ten appellants came to the hotel out of whom Gul Dino and Adlu were armed with hatchets while the remaining had dandas. On the instigation of Yousif, the appellants attacked Andal, Chhato, Jumo and Hassan. It was appellant Rasulo son of Saleh who caused danda blows to the deceased Chhato. Appellant Arab gave danda blows to P. W. Andal. The other appellants caused blows to the other witnesses. Complainant Usman further states that he and Kasim admonished the appellants not to resort to murder the people. Thereafter, the appellants went away towards eastern side followed by the complainant and Kasim who asked the labourers working in the hay grass of wheat to catch hold of the appellants. The labourers waylaid the appellants but suffered injuries at their hands and subsequently the appellants made good their escape. 15. P. W. Mohammad Hasan while narrating the story has averred that appellant Yousif instigated the other appellants on which Rasoolo Mamani (Rasoolo son of Saleh) gave blows to deceased Chhato whereas Arab and Gul gave blows to Andal. The other appellants caused blows to him and P. W. Jumo. P. W. Hasan is supported by P. W. Andal Exh. 26 who says that Rasoolo caused blows to Chhato and Arab had given him the blows. On receiving the blows he and Chhato had gone un-- conscious. He regained consciousness in Civil Hospital. P. W. Jumo Exh. 32 deposes that appellant was in Civil Hospital. P. W. Jumo Exh. 32 deposes that appellant Gul gave hatchet blows to Andal and Ghulamoo gave blows to P. W. Hasan while appellant Rasool Mamani gave hatchet blows to deceased Chhato and appellant Arab gave blows to him. 16. The evidence of Kasim at Exh. 24 is to the effect that there bad been a fight of appellants with Machhis. P. W. Jumo, Andal and some other person were injured in this fight. He cannot say as to who caused injuries and to whom. He was declared hostile and cross-examined. The evidence of Chhuto at Exh. 37 briefly is that he was owner of the hotel and was sitting at the hotel at 11-30 a. m. When 10/12 Panhwars armed with dandas and hatchets came to the hotel. He knew only Ahmed, Gul and Ghulamoo. These Panhwars caused injuries to Andal, Jumo, Hasan and Chhato. Chhato was standing outside the hotel in the street. After causing the injuries the accused went away towards north. He in his deposition says that he can not say if the other accused present in Court were with those accused whose names he uttered to be Ahmed, Gul and Ghulamoo. 17. The testimony of these eye-witnesses is to be closely analysed in order to appreciate as to what had happened and to what extent the appellants could be responsible for commission of the offence alleged against them. According to complainant Usman it was Rasoolo son of Saleh who had inflicted injuries to Chhato and that it was Arab who had inflicted injuries on Andal while Jumo has given a quite contradictory evidence stating that appellant Gul gave hatchet blows to P. W. Andal and Rasoolo Mamani gave hatchet blows to deceased Chhato and Arab gave blows to him (Jumo). The evidence of Jumo contradicts complainant Andal and Muhammad Hasan while the other witnesses allege that Andal was caused injuries by Arab and Chhato was caused injuries by Rasoolo son of Saleh. P. W. Jumo says that Rasoolo was armed with a hatchet which is not a fact if one relies on the evidence of the complainant and other witnesses. Rasoolo was armed with a danda and not hatchet. The evidence of Jumo is indeed discrepant. The evidence of complainant Ustnan Hasan and Andal could only be relied to the extent that Rasoolo son of Saleh gave danda
---
## Page 6
blows to the deceased Chhato while Arab gave blows with dandas to Andal. To this extent they appear to be unanimous although their evidence, in its entirety, may not be accepted specially in reference to the names of the other appellants indicated in the F. I. R. This is because the main independent witness Chhuto Chano, the hotel--keeper, has stated that 10/12 Panhwars had come to the hotel armed with dandas and hatchets out of whom he knew only four whose names he has taken. This witness does not say as to who caused injuries and to whom. He also does not say that the accused who were standing in the dock at the time of trial were the same whom he bad seen on the day of incident. He is a person who does not belong to the tribe of Panhwars and so also Kasim who is a Bhand by caste and he also does not lend full support to the witnesses namely Usman, Andal, Hasan and Jumo, although he was companion of the complainant and had come to sip a cup of tea at the hotel of Chhuto Chano. According to this witness there was a free fight between Panhwars and Machhis and he can not say as to who caused injuries and to whom. The evidence of these two witnesses namely Chhato Chano and Kasim Bhand indicates that in all probability the other appel--lants who are armed in the F. I. R. Can not be the actual culprits or their names may have been exaggerated. 1t is specially in view of the fact that one of the appellants namely Rasoolo has alleged enmity with Abdullah Shah the mashir who had involved him previously in some criminal litigation. The evidence of these witnesses namely Usman, Andal Hasan establishes only one fact that Chhato was delivered blows by Rasoolo son of Saleh Mamani while Andal was given blows by Arab. 18. Now it is necessary to refer to the second set of witnesses who had encountered the appellants at the hay grass heap. Gul Hasan is one of those witnesses and he has deposed that at about 11 a. m. He and others were working at the heap of wheat chaff of Umar Memon when the appellants came running towards them and that they tried to waylay them and to catch hold of them. It was because complainant. Usman and Kasim were shouting that they had injured some of their companions. The appellants caused them injuries and went away. P. W. Gul Hasan is supported by the other injured P. Ws. Namely Haji Sidik, Rajib, Ahmed Mohammad Khan, Mohammad Hasan, Rasul Bux and Wali Mohammad. The evidence of other injured witnesses in this group more or less is same. These witnesses had unnecessarily waylaid and tried to catch the appel--lants who while making their way out, appear to have inflicted injuries on them. The act of waylaying implies and means counter action and fight. These witnesses have simple injuries on their persons caused by some blunt weapon. It is to be noted that these witnesses are all by caste Machhis and the appellants are by caste Panhwars and the fight bad ensued between these two factions as noted above in the earlier paragraphs of this Judgment. What could be gathered from the evidence of these witnesses is that there indeed was a fight between Machhis and Panhwars and in the wake of this fight some of Machhis have suffered injuries. Medical evidence shows that there are in all 11 injured persons out of whom Chhato succumbed to the injuries. It is not established beyond any reasonable doubt that all the appellants were concerned in this act of fighting between the parties as the witnesses who could be termed as independent witnesses, have not implicated all the accused as such. The witnesses of the second set have nothing to say as against the appellants in respect of the incident which took place in front of the hotel of Chhuto Chano. Therefore, for the purpose of appreciating and assessing the evidence as to who caused death of Chhato and who caused grievous injuries to Andal, we have to rely upon the evidence of Usman Andal and Hassan. Evidence of Jumo is discrepant and, therefore, could be ignored. The evidence of the two independent eye-witnesses namely Kasim and Chhuto Chano could be appreciated specially to the point as to who amongst the appellants were present at the time of offence. Kasim and Chhuto both do not implicate all the appellants. So far specific role is concerned, it is attributed to only two of them namely Rasoolo son of Saleh and Arab. It is stated by P. W. Jumo that Gul had inflicted hatchet blows to Andal. The medical certificate belies this statement of the witnesses and in all
---
## Page 7
probability hatchet was not used at all. Thus, it is clear that the case against two appellants namely Rasoolo son of Saleh and Arab is made out by the first set of witnesses. 19. It is to be marked that during the fight at two places only, members of Machhi caste were injured and none of the Panhwars (the appellants) sustained any injury. Common sense would not accept this position. In all probability the culprits must necessarily had sustained the injuries and this aspect of the case, appears to have suppressed by the investigating agency. It is mentioned in the F. I. R. That Mohammad Hassan son of Wali Mohammad was present at the second wardat also, and one can easily spell out that Machhis have followed the running culprits and the exchange of blows has occurred even at the second wardat. It would be absurd to believe that only P. Ws. Were injured and none of the appellants suffered any injury. This is very important aspect of the case, and its bearing on the findings, cannot be ignored. 20. Thus the ocular testimony is to be accepted with due care and caution. The possibility of exaggeration cannot be ruled out. A number of the appellants may have been roped in, and, therefore, we cannot disentitle the remaining appellants by denying them the benefit of doubt. Hence, for the safe dispensation of justice we would hold, that participa--tion of the other appellants in the fight is doubtful. It is doubtful because there is no corroborative piece of evidence against them and the trial Court has already discarded recovery of weapons of crime as a piece of evidence against them. Ocular testimony, therefore, would not be trust--worthy in respect of other appellants except Rasoolo and Arab. No doubt the unlawful assembly was formed but its object was not to commit murder as is argued by the learned counsel of State. Its object was only to cause injuries. 21. The learned Additional Sessions Judge considered this question and found on the basis of nature of injuries, resulting in death, that the appellants had common object to kill the deceased. In our view this approach of the case by the trial Judge is clearly inadequate. We would refer in this behalf to PLD 1971 Kar. 68 and we would like to quote the following paragraph: - ---Section 149, P. P. C. Deals with the constructive liability of the members of an unlawful assembly for the offence having been committed by one or more of the members of the assembly. For the purpose of that liability this section may be divided into two parts-(a) the offence must be committed in prosecution of the common object of the assembly, or (b) the offence must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Manifestly the liability of every member' extends not only to the acts contemplated by all but also to those offences which are likely to be committed in achieving the common object. It, therefore, follows that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.