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Petitioner: AMIR BUX AND 2 OTHERS VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Syed Sajjad Ali Shah Title: AMIR BUX AND 2 OTHERS vs THE STATE Case No.: Criminal Appeal No. 67 and Confirmation Case No. 17 of 1978 Date of Judgment:1979-03-03 Reported As: 1979 P Cr. L J 314 Result: Appeal dismissed
JUDGMENT
JUDGMENT ABDUL HAYEE KURBSHI, J.---The three appellants Amir Bux, his father Khuda Bux and his cousin Mahmood were charged under section .302/34, P. P. C. By the Sessions Judge, Nawab shah and by a judgment dated 16-3-1978 each one of them was found guilty and sentenced to death. They were also ordered to pay a fine of Rs. 1,000 and in default of payment of fine they were sentenced to R. I. For one year. Appellant Mahmood was further charged under section 13-D of the West Pakistan Arms Act and was sentenced to R.I. For one year. Co-accused Sharfuddin had absconded during the trial and presumably proceedings under section 512, Cr. P. C. Have been taken against him. All the appellants have impugned the judgment of the Sessions Judge and the case has also been submitted before this Court for confirmation of the sentence of death imposed on the appellants. We propose to dispose of the appeal and the death reference by this common judgment. 2. We have heard Mr. Muhammad Hayat Junejo, Advocate for appellants Amir. Bux and Khuda Bux and Mr. Azizullah K. Shaikh, Advocate for appellant Mahmood. We have also heard Mr. S. Nasiruddin, Advocate for the State. Mr. Abdul Kadar Halepota. Advocate had been engaged privately by the complainant and since it was not objected to we have heard him also. 3. The brief facts of this case are that on 6-10-1975 at about 5-30 p.m. The two deceased Allah Bachayo and Ghulam Nabi, respectively the father and son, were returning on a scooter which was being driven by the latter to their village deh 47 Nasrat by the Pucca road from 60th mile village. When they reached near the Sui Gas Bridge the three appellants with the absconder Sharfuddin came out from the cotton
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cultivation on the road. While appellants Amir Bux and Khuda Bux were armed with hatchets, appellant Mahmood and absconder Sharfuddin had guns. Sharfuddin challenged the two deceased and instigated his companions, the present appellants, whereafter Sharfuddin fired his present gun which injured Ghulam Nabi and appellant Mahmood by a similar act injured Allah Bachayo. They both fell down from the scooter, where--after appellants Amir Bux and Khudabux gave them hatchet blows causing their instantaneous death. The incident was witnessed by com- -plainant Muhammad Panah and witnesses Khuda Bux Brohi and Ratio. The cries and gunshots attracted P. Ws. Ahmed Kiryo and Khuda Bux Mashwari who were following the scooter at a distance of one furlong These two persons saw the four appellants going away from the scene and were informed about the occurrence by the three witnesses, namely Muhammad Panah, Khuda Bux and Rano. Muhammad Panah then left the scene for Daur Police Station which was situated at a distance of six miles and lodged the report within an hour. This report was recorded by S. H. O. Kadir Bux who proceeded to the scene and prepared a mashir--nama of the scene as well as the inquest reports on the dead bodies in the presence of P. W. Rasool Bux and one Muhammad Hashim. The two empty cartridges were also lying at the scene acrd the same were taken into possession. The scooter which was being driven by deceased Ghulam Nabi was also seized and the same bore a pellet mark. On 7-10-1975 appellants Khuda Bux and Amir Bux were arrested and while in custody appellant Khuda Bux produced his clothes and a hatchet which were stained with blood appellant Amir Bux produced his hatchet which too was stained with blood. Such incriminating articles were seized under a mashirnama prepared in the presence of the same mashirs. On 8-10-1975 appellant Mahmood was arrested from a Bus stand at 6Jth mile village and while in custody he also produced a single barrel 12 bore gun which was seized in the presence of mashirs, namely P. W.Muhammad Qasim and one Imam Bux. 4. During the investigation the investigating officer had sent the two dead bodies for post-mortem examination to Dr. Muhammad Sharif who found gunshot injuries and hatchet injuries on the person of each one of them. The blood-stained articles were sent to the Chemical Analyser who by a report dated 30-4-1978 certified the same to be stained with human blood. The gun recovered from appellant Mahmood together with the crime empties secured from the scene was sent to the Forensic Science Laboratory and Ghulam Abbas Jafri, the Director of the said laboratory sent an opinion that one out of the two crime empties had been fired front the gun that had earlier been secured from appellant Mahmood. On completion of investigation the case was submitted for trial. 5. At the trial the prosecution examined complainant Muhammad Panah, Khuda Bux Brohi and R3no as eye-witnesses. Ahmad Kiryo was examined as the witness who reached the scene immediately after the indent and saw the appellants running away and was informed ab6ut the circumstances that resulted in the death of the two deceased. Muhammad Kasim was examined as a mashir in respect of the arrest of appellant Mahmood and the recovery of gun from him. Rasool Bux was examined as the mashir in regard to the scene of occurrence, inquest reports, arrest of appellants Amir Bux and Khuda Bux and the recoveries from these two appellants. Tapedar Ahmed Khan was also examined to produce the sketch of the scene of offence which had been prepared on 28-11-1977. Constable Ghulam Mustafa was examined to prove the delivery of the dead bodies to Dr. Muhammad Sharif. Constable Gul Sher was examined to prove that Khuda Bux Mashwari, the person who lad come on the scene along with Ahmed Kiryo was not available. The remaining evidence of the prosecution was of S. H. O. Kadar Bux, who investigated the case and Dr. Muhammad Sharif who had performed the post-mortem examination on the dead bodies. 6. While the three appellants examined no witness in their defence they denied -the entire prosecution case. They stated that all the articles shown to have been recovered from them had been foisted by the Police. In such regard appellant Mahmood further stated that he had a revolver licence indicating thereby that he could not have used an unlicensed gun for committing the
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crime. In regard to the witnesses each one of the appellants stated that they were giving false evidence due to enmity and were intererted. The motive that was alleged by the prosecution was that one Muhammad Khan, the brother of appellants Khuda Bux and Amir Bux had been murdered by three persons including Sher Muhammad Gahoo and deceased Allah Bachayo had been helping the said accused in that murder case and since the appellants did not like the deceased helping the person who was responsible for the murder of Muhammad Khan they bad committed this crime. In such regard appellant Mahmood produced a certified copy of an affidavit of one Gul Muhammad to prove that the said Gul Muhammad who was a Gahoo by caste had stood surety for accused Sher Muhammad. Appellant Amir Bux also produced a certified copy of an earlier judgment of the IIIrd. Additional Sessions Judge, Nawabshah, to show that one Allah Bachayo, a cousin of complainant Muhammad Panah was a witness in a case against the relatives of this appellant and such case had resulted in acquittal. The appellants also alleged that one Muhammad Alam, a cousin of deceased Allah Bachayo had abducted a woman by caste Rind from JacobAbad and had sheltered her in the house of deceased Allah Bachayo and for such reason the relatives of the abductee woman were hostile to Allah Bachayo. In abort, the significance of this statement is that Allah Bachayo had some other enemies who might have committed this murder. 7. The primary evidence in this case is of complainant Muhammad Panah, eye-witnesses Khuda Buy. Brohi and Rano and witness Ahmad who had reached the spot immediately after the murders. The learned Advocates for the appellants have challenged their evidence and attempted to set up a case that this crime was un-witnessed and each one of these witnesses had tendered false evidence. It has been contended before us that it would be difficult to believe that all these witnesses chanced to be present at the scene at the time of .The incident. It is further contended that although these witnesses bad stated that they had gone to village 60th mile to make purchases, such articles as had boon purchased were not found at the scene of occurrence when Police arrived. It is further contended that complainant Muhammad Panah and Rano were related to the deceased while Khuda Bux Brohi was a hostile witness and Ahmed was an interested witness. It .Has also been contended that the medical evidence was at variance with ovular evidence. In regard to recoveries they have urged before us that mashir Rasool Bux resided at a distance of 25 miles from the scene of occurrence and his presence at the scene was either improbable or manoeuvred. In regard to mashir Muhammad Kassim it is urged that he had wt witnessed the actual recovery of the Sue from appellant Mahmood besides his being a resident of a place eight miles away from the house of this appellant. 8. We have carefully read the evidence of the eyewitnesses Muhammad Panah, Khuda Bux Brohi and Rano. It must be stated initially that while Muhammad Panah is a cousin of deceased Allah Bachayo, Rano is married to the daughter of Muhammad Alam, the. Brother of deceased Allah Bachayo. Khuda Bux Brohi is not shown to be related to the deceased. While complainant Mahmood Panah and Rano have given consistent and detailed evidence in regard to the circumstances of the crime witness Khuda Bux Brohi has made conflicting statements; as and when he was examined by the prosecutor or the defence counsel. The mere fact of Muhammad Panah and Rano being related to the deceased is not by itself sufficient to doubt or disbelieve their evidence. The day on which this incident occurred was the day preceding the Eid day. The witnesses have stated that they had gone to village 60th mile for making purchases and since their villages were on or along the same road they were returning together. The time of incident is stated to be 5-30 p.m. Which would roughly correspond to the time for Iftari. It is very probable that each one of these witnesses may have gone to make purchases and was anxious to return to his village before Iftari time. The witnesses cannot for such reason be termed to be chance witnesses or such witnesses whose presence at the spot would be improbable. Each one of these witnesses
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has again stated that while they were near the Sui Gas Bridge they found the two deceased coming on the scooter which was being driven by deceased Ghulam Nabi. Each one of these witnesses has given consistent evidence that the three appellants and absconder Sharfuddin emerged from the cotton fields, challenged the two deceased and while absconder Sharfuddin fired the first shot, appellant Mahmood fired the second shot and both the deceased fell down from their scooter whereafter the two appellants Amir Bux and Khuda Bux gave them hatchet injuries. There is absolutely no inconsistency or contradiction in the evidence of these three witnesses, although Khuda Bux Brohi has made some conflicting statements to which reference shall be made presently. Each one of these witnesses has spoken about the arrival of Ahmed Kiryo and Khuda Bux Mashwari at the scene. They have also given consistent evidence about the complainant leaving the scene of occurrence for lodging the report. Such report was lodged within an hour of the occurrence in which the names of the witnesses including that of Ahmad Kiryo and Khuda Bux Mashwari are mentioned. 9. On an examination of the evidence of Khuda Bux Brohi we find that in his examination-in-chief he started by stating that he knew appellants Khuda Bux and Amir Bux and in regard to appellant Mahmood he stated that he did not know him. Further in his evidence he explained the reason for his visit to 60th mile village and he deposed that he had gone there to make purchases for Eid. He had gone on to state that he joined complain--ant Muhammad Panah and witness Rano for returning to his village and the incident occurred near the Sui Gas Bridge when the two deceased came on a scooter. He had further stated that four persons came out of cotton cultivation and the fourth person was named by him as absconder Sharfud--din. He gave the same version in regard to the actual assault as is given by the other witnesses. He further stated that Ahmed Kiryo and Khuda Bux Mashwari bad also come to the scene and they had found the appellants and the absconder running away. When he was cross he gave a different version and it will be profitable to reproduce such statement that he made in cross-examination. It reads as follows :- "I had seen this incident from a distance of one athas or 1-- athases. Muhammad Pannah and Rano had also seen the incident from such distance. There were cotton cultivation, as well as sugarcane cultivation in-between us and the, place of the incident. The culprits who were causing the injuries with guns and hatchets to the deceased persons had their backs to us, and their faces were muffled. Since I have not seen the faces of the culprits, and they were at a distance from me, I had suspected to be Sharfuddin, Amir Bux and Khuda Bux. I told P. Ws. Muhammad Panah and Rano, that I was suspecting the culprits to be Sharfuddin, Khuda Bux and Amir Bux. They also told me that these persons were their enemies, therefore they also suspected that culprits to be the above persons. Muhammad Panah and Rano told me that they had not seen the faces of the culprits and they could not identify them properly. After we went to the vardat, P. Ws. Khuda Bux Mashwari, and Ahmed came, after half an hour. They told us that they did not see the culprits running away from the vardat. We also told them that we did not identify the offenders. I was had of the deceased Allah Bachayo two months before the incident. He was my zamindar and I used to answer his calls." The public prosecutor then sought permission of the Court to cross--examine this witness on the basis of his earlier statement under section 161, Cr. P. C. Such request was granted by the Court and this witness was confronted with his statement under section 164, Cr. P. C. He then adhered to the statement under section 164, Cr. P. C. As well as to his deposition in his examination-in-chief and he went on to state that he even saw appellant Mahmood at the spot who did fire at the deceased. He further went on to state that the faces of the accused persons were muffled and therefore he had "suspected" them to be the present accused. The statement under section 164, Cr. P. C. Has been placed on record. This witness is a Brohi by caste while the complainant party is Kiryo by caste. Since he is neither related to the complainant party nor is of the same caste his anxiety to save the
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accused by making obliging statement is understandable. It is common knowledge that persons who are strangers are reluctant to volunteer evidence in the prevailing conditions within this Province. However, when a witness speaks in different tones at the different stages of his evidence the Court is not to keep his evidence out of consideration solely by reason of his conflicting narrations. Under these circumstances the Court has to see in which tone is he speaking the truth. His evidence in so far as it implicates the appellants is consistent with his earlier statement under section 164, Cr. P. C. It is also consistent with the evidence of witnesses Muhammad Panah and Rano. His name does appear in the first information report. His presence at the scene is also not open to doubt as he had a good reason to go to 60th mile village to make purchases and an equally good reason for his being on his way returning home before the Iftari time. He himself states, even when he is giving evidence to save the appellants, that he was present at the scene. He tries to save the appellants only by creating a doubt in regard to his own evidence by stating that the faces of the appellants, were muffled and therefore identification was either not possible or was not completely reliable. In that context there is not an iota of evidence to support this witness that the appellants or any one of them had their faces muffled. The other witnesses have been cross--examined on that point and each one of them has stated that their faces were open. We are, therefore, of the view that witness Khuda Bux Brohi is speaking the truth when be implicates the appellants and to the extent that he has tried to save the appellants by creating a story of their faces being muffled he is not speaking the truth. We will, therefore believe this witness to the extent that his evidence is consistent with the evidence of Muhammad Panah and Rano. 10. A word also needs to be stated about the evidence of P. W. Rano. S. H. O. Kadir Bux, the Investigating Officer was asked in cross--examination if P. W. Rano had stated in his Police statement that he had seen the accused giving blows to the deceased persons or whether 11e had spoken about the presence of Khuda Bux Mashori having come to the scene. Curiously the police officer replied that Rano had not stated in his statement under section 161, Cr. P. C. That he had seen the accused giving blows to the deceased persons. We were indeed surprised at this reply because no such question had been asked from P. W. Rano in his cross-examination. We therefore looked at the police statement of this witness and found that the police officer bad made a wrong statement. We, therefore, heard the learned Advocates who had no objection to the police officer being called for evidence in this Court under section 375, Cr. P. C. We examined him on 3-2-1979 and he has stated as follows :-- "I had recorded the statement of P. W. Rano on the morning of 7-10-1975. Rano had stated in his statement under section -161, Cr. P. C. That he had seen the accused giving blows to the deceased persons." He further went on to state that on refreshing his memory by looking at the police statement he had found that P. W. Rand did state that he saw accused giving blow3 to deceased persons. He was asked whether his reply in the Session Court was correct or his reply in this Court was correct and the went on to state that he had never been asked any such question in the Sessions Court nor had be made any such reply. Be that as it may, we had recalled this witness not for bringing any police statement on the record but for having the correct evidence of this police officer and he has stated that his earlier statement before the Sessions Court was incorrect. Such admission of S. H. O. Kadir Bux in favour of the appellants is, therefore, of no avail to the defence. We also found that this witness had attempted to save the appellants Amir Bux and Khuda Bux by stating that the mashirnama in regard to the seizure of hatchets from these two appellants did not show that the hatchets were stained with blood. The mashirnama was also available before us and we found that it had been recorded that there were drops, of blood on the hatchets seized from these two appellants. Surprisingly the investigating officer made a false statement in the Sessions Court even on this aspect of the cams. In his evidence under section 375, Cr. P. C. He was examined on that
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aspect of the case and while he stated in this Court that the mashirnama did show that drops of blood were found on the two hatchets he went on to state that in the Sessions Court be had not been asked any such question and he had made no reply to such effect. This only shows that this police officer was also interested to help the appellants by even tendering the false evidence in respect of murders in regard to which he had prepared documents. 11. Thee learned Advocates for the appellants have additionally contended that the prosecution story is unreliable because when police came at the scene the purchased articles of witnesses were not found. To that extent the eye-witnesses have been put to searching cross-examination. They have stated that the articles which had been purchased were taken away by the boys who had come from the village. It is in evidence that the village of these witnesses is near the scene of incident. Immediately after the murders the people in the village mist have come to know in regard to the occurrence and they must have rushed there. The Investigating Officer had also stated that no less than 150 or 200 persons had collected at the scene. Such articles as had been purchased were foodstuff and the same were required for use of the family of these witnesses. The articles having been carried away would, in our view, not be unnatural and therefore the mere fact of such articles not having been produced before the Investigating Officer is not of much significance much less being fatal to the prosecution case. 12. We next proceed to examine the medical evidence as an argument bad been raised before us that the same is in conflict with the ocular evidence of complaint Muhammad Panah and witnesses Khuda Bux Brohi and Ratio. Dr. Muhammad Sharif had performed the post-mortem examination on the dead bodies. He found the following injuries on the dead body of Allah Bachayo: - "(1) Three fire-arm punctured wounds each with ----- in diameter adjacent to each other, over the lateral aspect of the left side of the abdomen. The margins were inverted. (2) Throe fire-arm punctured wounds each ----- in diameter over the left anterio superior iliac spine. Margins were inverted. (3) Three fire-arm discharge wounds each half inch in diameter over the left side of the abdomen. The margins were inverted. (4) One fire-arm discharge wound ----- in diameter over the right front abdomen near the amblicus. (Wound of exit with-inverted margins). (5) Two fire-arm discharge wounds each ----- in diameter at the lower lateral aspect of the right abdoment (wound of exit -with averted margins). (6) One fire-arm discharge wound ----- in diameter over the lateral side of the upper abdomen (wound of exit with everted margins). (7) Incised wound 8--- x 5--- x cutting down the underlying structures over the left side of the neck extending from the mandible below to the neck. (8) Incised wound 8--- X 5--- x cutting down the underlying structures over the left side of the occipit. The brain was out. (9) Incised wound 8--- x 5--- x cutting down the underlying structures over the top of the head. The brain was out." He also found the following injuries on the dead body of Ghulam Nabi :- "(1) One fire-arm discharge wound ----- in diameter, at the back of the right chest near the spinal grove (wound of entry). (2) One firearm discharge wound ----- in diameter, at the right side back of the chest, below the scapula. (3) One fire-arm discharge wound ----- in diameter at the back of the right chest, near the injury No. 2,
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(4) One fire-arm discharge wound ----- diameter at the back of the right lower chest (wound of entry). (5) One fire-arm discharge wound ----- diameter over the right lower lumber area. Margins were inverted (wound of entry). (6) One fire-arm discharge wound ----- in diameter over the front of the right side of the chest near the sternum at the upper side with averted margins (wound of exit). (7) One fire-arm discharge wound ----- in diameter, over the right front chest, near the right nipple (wound of exit) with averted margins. (8) One fire-arm discharge wound ----- in diameter over the front right lower chest (wound of exit) with averted margins. (9) One fire-arm discharge wound ----- in diameter, over the right lower abdomen (wound of exit). (10) An incised wound 10--- x 5--- x cutting down, the underlying structures over the back of the right upper chest. (11) An incised wound 8--- x 5--- x cutting down the underlying structures over the occipital. The brain matter was out. (12) Incised wound 8--- x 4--- x cutting down the underlying structures on the head The brain matter was out.--- In regard to the incised wounds the learned Advocates for the appellants have not raised any point. The evidence shows that each one of the two deceased suffered three incise wounds which could have been caused by hatchet. The argument has been raised on the premises that while the eye-witnesses stated that the shot fired by Sharfuddin hit Ghulam Nabi and the shot fired by appellant Mahmood hit Allah Bachayo, the locale of injuries exhibited that more than two shots had been fired to cause these injuries or the shot fired by each of the two appellants may have caused injuries…
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