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Petitioner: SHAFFI MUHAMMAD AND 3 Others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Ali Nawaz Budhani Title: SHAFFI MUHAMMAD AND 3 Others vs THE STATE Case No.: Criminal Appeal No. 305 and Criminal S. M. Revision No. 191 of 1980 Date of Judgment:- Reported As: 1983 P Cr. L J 550 Result: accused made
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J.-This appeal is directed against the judgment dated 14-10-1980, impugned herein, of learned 1st Additional Sessions Judge, Dadu, whereby four appellants named above have been convicted for offence under section 302/34, P. P. C. And sentenced each to life imprisonment and a fine of Rs. 4,000 in default of the payment whereof further sentenced to R. I. For one year. Appellants mentioned above are further convicted for offence under section 307/34, P. P. C. And sentenced each to R. I. For 7 years and a fine of Rs: 2,000, in default of the payment whereof further sentenced to R. I. For six months more. The sentences are directed by the trial Court to run concurrently. The trial Court has further directed that if the amount of fine arising from conviction and sentence for offence under section 302/34; P. P. C. Is recovered, half of it be given to the heirs of deceased Ghulam Hyder as compensation under section 544-A, Cr. P. C. Similarly, if the amount of fine arising from conviction and sentence under section 307/34, P. P. C. Is recovered, half of it be paid to injured Ghulam Hadi. It would be pertinent to point out that co-accused Muhammad Usman was also sent up for trial alongwith above named appellants before the trial Court but he has been acquitted by the learned trial Judge for the reason that his complicity in the crime was doubtful, although allegation of prosecution was that Muhammad Usman threatened, instigated and caught hold of Ghulam Hyder to facilitate attack by other appellants, in the result whereof Ghulam Hyder became injured and died. There is also before us revision application in which sua motu notices have been issued by the High Court to the appellants for enhancement of their sentences to capital punishment. We propose to dispose of both appeal and the revision application by this single judgment,
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2. Briefly stated prosecution case is that appellant Shafi Muhammad is Sand by caste and appellant Muhammad Saleh is his son. Appellant Abdul Rehman is brother of appellant Shafi Muhammad. Appellant Dino alias Din Muhammad is Katyar by caste. Acquitted co-accused Muhammad Usman is also Katyar by caste. In the complainant party deceased Ghulam Hyder was brother of complainant Ghulam Rasool and P. W. Ghulam Hadi injured in this case is also brother of the complainant. Complainant party is Burdi by caste and jointly cultivated 28 acres of land on lease from Kazi Abdul Khalique, which is situate in Deh Channa. Nearby that land is the land of Haji Ismail which was being cultivated at the time of incident by appellants and acquitted co-- accused. On the day of incident i.e. 26-4-1978 at about 10-30 a.m. Deceased Ghulam Hyder was grazing buffaloes and P. W. Ghulam Hadi sheep, when they were called by the appellants and their acquitted co--accused in their land where they had grown lucerine grass. Acquitted co-accused Usman shouted at Ghulam Hyder as to why they bad got their lucerine grass trampled by the grazing of animals. Ghulam Hyder replied that they had taken precaution and had not allowed their animals to trespass into their grass. Upon this acquitted co-accused Usman threatened Ghulam Hyder that they had forcibly occupied their plot and for that reason they would not be spared. At that time two other witnesses namely Pandhi Burdi who was taking bath in disused canal at a short distance and Piral Burdi who was grazing his sheep also at a short distance were attracted to the spot on commotion. Complainant Ghulam Rasool at that time was on his way from his land to his house and reached the place of incident just in time. In the meantime, acquitted co- accused Usman caught hold of Ghulam Hyder and appellant Shafi Muhammad and Saleh who were armed with hatchets gave hatchet blows to Ghulam Hyder on head, neck and arm. Appellants Abdul Rehman and Dino gave hatchet blows to Ghulam Hadi on his head. In the meantime eye-witnesses reached at the spot and were threatened by the assailants not to come near. Assailants thereafter ran away with their weapons towards their village. Complainant and other witnesses went near and found Ghulam Hyder lying dead with injuries and Ghulam Hadi seriously injured but was still alive. Complainant Ghulam Rasool left P. Ws. Pandhi and Piral at the wardat to look after the dead body and injured P. W. Ghulam Hadi and himself went to Police Station Schwan at a distance of four miles and lodged F. I. R. At 11-30 a. In. 3. S. H. O. Inayatullah Soomro after registering F. I. R. Came to the scene of offence, which he visited at the pointation of complainant Ghulam Rasool. He found dead body of Ghulam Hyder as well as injured Ghulam Hadi lying there. He noted their injuries, prepared inquest report sent the dead body to mortuary and injured Ghulam Hadi to hospital. He recorded police statements of the witnesses present at the spot. He recovered blood-stained earth from two places one where the incident took place and the other where the dead body was removed to lay down on the cot under the tree. He put the blood-stained earth into sealed parcels. On the same day S. H. O. Went to village Pacca Channa from where he arrested appellants Shafi Muhammad, Dino and Muhammad Saleh. Appellant Shaft Muhammad produced crime weapon hatchet which was lying under the cot in the courtyard of his house. The hatchet was stained with blood and was put into sealed parcel, Appellant Muhammad Saleh took out hatchet from the roof of cattle shed in front of his house and produced the same. The hatchet was stained with blood and two pieces of hair attached to it. The hatchet was put into sealed parcel. Thereafter appellant Dino produced blood--stained hatchet from the back of corn-bin on the western side of a room in his house. The hatchet was put into sealed parcel. Thereafter appellant Shafi Muhammad once again led to the recovery of blood-- stained hatchet which was lying under the cot in his house and produced the same. The hatchet was put into sealed parcel. It would be pertinent to point out here that appellant Shafi Muhammad about this second hatchet disclosed that it was of his brother Abdul Rehman. Thereafter S. H. O. Arrested appellant Abdul Rehman and acquitted co-accused Usman from Aral Wah Bridge and brought them to the police station where accused Abdul Rehman lodged counter F. I. R. Which has
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been produced as Exh. 6. S. H. O. Visited the wardat mentioned in counter report and also found appellant Abdul Rehman having sustained injuries on his person. S. H. O. Prepared mashirnama of injuries and referred Abdul Rehman to the hospital for examination, treatment and certificate. S. H. O recorded statements of Haji Muhammad Ismail, Abdul Khalique and P. C. Ghulam Hyder. On 29- 4-1978 S. H. O. Produced P. Ws. Pandhi and Pical before the Mukhtiarkar and F. C. M., Sehwan and got recorded their 164, Cr. P. C. Statements. S. H. O. Also sent sealed parcels to the Chemical Examiner and after completing other steps of the investigation presented the challan in Court. 4. Prosecution has examined in all 9 witnesses in support of its case. So far ocular evidence is concerned prosecution has examined P. W. 1 Ghulam Rasool complainant, P. W. 2 Ghulam Hadi (injured), P. W. 4 Piral, P. W. 5 Pandhi as eye-witnesses of the incident. They have sup--ported the case of prosecution. Prosecution has also produced circumstantial evidence in the shape of recovery of blood-stained weapons from the appellants. P. W. 9; Bakhshal has been examined as Mashir who has attested all Mashirnamas starting from scene of offence and then arrest of appellants and acquitted co-accused and recovery of hatchets from the appellants as stated above. This Mashir has stated m his deposition before the trial Court that some parcels were not sealed in his presence and some hatchets were not stained with blood. His evidence we will discuss later on at a proper place. Prosecution has examined P. W. 3 Ghulam Hyder Constable who is corpse-bearer. P. W. 6 is Ali Asghar Tapedar who has prepared sketch of wardat, P. W. 7 Inayatullah S. H. O. Has investigated the case and produced before the trial Court Mashirnama from Exh. 17 to Exh. 26. P. .W. 8 is Doctor Ghulam Qadir who conducted post-mortem examination on the dead body of Ghulam Hyder and found five injuries out of which four were incised wounds and one was abrasion. From the external and internal examination of dead body the doctor was of the opinion that the cause of death was due to shock and haemorrhage due to injuries Nos. 1, 2 and 3 which individually and collectively were sufficient in the ordinary course of nature to cause death. Injuries 1 to 4 were caused by a sharp cutting weapon such as hatchet. The same doctor examined P. W. Ghulam Hadi on the same day and found on his person four incised wounds in the area of head. Doctor declared Injury No. 4 as grievous in nature as it had caused fracture of frontal bone. The remaining injuries were declared try the doctor to be simple in nature. This doctor on the same day examined injured appellant Abdul Rehman and found on his person three incised injuries. First was on the region of skull, second was on frontal region and third on the back of left scapular region. The doctor finally declared all the three injuries to be simple in nature. Before closing the case prosecution produced report of Chemical Examiner which is to the effect that all the four hatchets and blood-stained earth sent in sealed parcels to the laboratory were found by the Chemical Examiner to be stained with human blood. 5. Appellants in their statements under section 342, Cr. P. C. Before the trial Court have denied the prosecution allegations and have proclaim--ed innocence and false implication. Appellant Shafi Muhammad has stated that deceased Ghulam Hyder and P. W. Ghulam Hadi had caused injuries to his brother Abdul Rehman at their lucerine grass cultivation. Abdul Rehman had filed such case against them, hence this case against them was just a counterblast of the case of Abdul Rehman. Other appellants have taken similar plea as stated above. Appellant Abdul Rehman has further stated in his statement under section 342, Cr. P. C. That on the day of incident at about 10-30 a.m. He was levelling his land near lossan grass. At that time Ghulam Hadi and Ghulam Hyder left their cattle in their lossan grass. P. W. Ghulam Rasool was coming from eastern side and he (Abdul Rehman) drove away the cattle from his grass on which Ghulam Rasool and Ghulam Hyder gave him blows. He raised cries which attracted co-villagers who came running about 40-50 in number. The fighting ensued., He saw Shafi Muhammad and Muhammad Saleh coming running. He could not see any more. Appellants did not produce any witness in defence.
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6. We have heard Mr. A. Q. Halepota, counsel for the appellants and Mr. Agha Ghulam Ali for A.-G., for the State at great length. So far the ocular testimony furnished by the prosecution in this case is concernes, not much criticism can be made on it. Out of the four eye-witnessed examined by the prosecution P. W. 2 Ghulam Hadi is injured eye-witness. Although P. W. Ghulam Rasool is brother of deceased and P. W. 2 Ghulam Hadi and claims to have seen the incident but material on the record shows that be lived nearby and is a natural witness. P. W. 4 Piral and P. W. 5 Pandhi are not related to the complainant party or to the appellants and are from different caste. They also claimed to have seen the incident and have given reasonable explanation to show that they were present at the relevant time. Mashirnama of scene of offence Exh. 17 on the record is a document which was prepared by S. H. O. Immediately when he came to the wardat after registering F. I. R. This document gives clear picture of the scene of offence and the places where the eye-witnesses were present at the time of incident. According to this document the place of occurrence was in lucerine cultivation, where grass was trampled due to public traffic and quantity of blood was lying there. Towards north of the place of occurrence there was uncultivated land in which eye--witness Piral Burdi was said to be grazing cattle at a distance of 800 paces. Scene of offence was visible to this witness: Towards west of the scene of offence was wheat granary of Ghulam Muhammad Qureshi at a distance of one athas where deceased Hyder was grazing his cattle. In-between wheat granary and the scene of offence was a disused canal in which there was some water and witness Pandhi is said to be taking bath in it at the relevant time. It is mentioned in the Mashirnama of wardat that even the scene of offence was visible from the place where Pandhi was taking bath. It is further stated in this document that houses of complainant and the appellants are at a distance of 3 R. D. From the scene of offence and the complainant saw incident at a distance of 120 paces from the scene of offence. Not only this but F. I. R. Was lodged promptly after about one and half hours of the incident at the police station and the complainant has named eye-witnesses in F. I. R. S. H. O. Came to the spot immediately, found injured eye-witness Ghulam Hadi noted his injuries and sent him to the hospital. S. H. O. Also found the other two eye-witnesses namely Piral and Pandhi present at the spot and recorded their statements. These facts show that the witnesses are natural and were present at the spot and particularly presence of injured eye-witness Ghulam Hadi cannot at all be called in question. It appears from the perusal of F. I. R. That correct and detailed version of the incident, as it took place, has been given by the complainant including part in which injuries were inflicted on the person of appellant Abdul Rehman by deceased Ghulan Hyder. It is the case of the prosecution that deceased Ghulam Hyder and injured P. W. Ghulam Hadi were grazing animals near the scene of offence on the day of incident when they were called by the appellants and their acquitted co-accused Usman in lucerine grass. Acquitted co-accused Usman asked Ghulam Hyder as to why their grass has been trampled by their animals which allegation was specifically denied by Ghulam Hyder. Thereafter Usman asked Ghulam Hyder as to why their plot of land has been forcibly occupied and thereafter Usman instigated and caught hold of Ghulam Hyder while appellants Saleh and Shafi Muhammad, who were armed with hatchets gave hatchet blows to Ghulam Hyder on his head, neck and arm. The other group comprising appellants Abdul Rehman and Dino who were also armed with hatchets gave hatchet blows to P. W. Ghulam Hadi on his head. In the meanwhile Ghulam Hadi snatched hatchet from appellant Dino and gave blows to Abdul Rehman. Injuries to appellant Abdul Rehman are medically proved and he has filed counter F. I. R. Also. In counter F. I. R. Exh. 26 on the record filed by the appellant Abdul Rehman presence of deceased Ghulam Hyder and P. W. Ghulam Hadi and complainant Ghulam Rasool is admitted. On the other hand, in the counter F. I. R. Presence of appellants Shafi Muhammad, Muhammad Saleh, Dino and acquitted co--accused Muhammad Usman is also admitted. Only presence of eye--witnesses in this case namely P. Ws. Piral and Pandhi is not admitted. Injuries having been caused to deceased Ghulam Hyder and P. W. Ghulam Hadi are also
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admitted. We have been taken through the cross-examina--tion of the eye-witnesses in this case but we find that credibility and veracity of these witnesses is not shaken. They have fully supported the prosecution case and there are no inconsistencies or discrepancies in their evidence to suggest that they have not seen the incident or have given false evidence. It was contended by Mr. Halepota that P. Ws. Piral and Pandhi have not seen the incident but he has not been able to pick any holes in the evidence of these two witnesses. P. W. 4 Piral has deposed that at the relevant time he was grazing cattle on the northern side of Phitto Canal and P. W. Pandhi was taking bath in Phitto Canal. He heard the story of prelude to the incident between the appellants and deceased and injured eye-witnesses Ghulam Hadi as stated above. It appears in the cross-examination of this witness that he has admitted that he had hatchet in his hand while he was grazing cattle. It was argued by Mr. Halepota that if this witness had hatchet he should have gone to the rescue of deceased and P. W. Ghulam Hadi. It is not. Necessary that he should have done that and his omission to do so does not show that he was not present at the spot and had not seen the incident. This witness has admitted that his house was at a call's distance from the wardat. In cross--- examination it was suggested to this witness that he had not stated in his 161 as well as 164, Cr. P. C. Statements that P.W. Ghulam Hadi snatched hatchet from Dino and caused injuries to Abdul Rehman. So far Police statement is concerned no such clarification or confirmation was sought from S. H. O. When he was examined. So far 164, Cr. P. C. Statement is concerned this witness Piral has stated so specifically. Coming back to P. W. Pandhi, it was submitted that he could not have taken bath at 10-30 a.m, when the incident took place and further that. There was no water in the disused canal. Contention of the learned counsel has no force for the reason that presence of this witness at the spot is even otherwise' established by several other circumstances mentioned above. It is also stated in the Mashirnama of wardat that there was water in the disused canal. This witness has stated before the trial Court that his village was at a call's distance from the wardat and there was no hand pump in his house. He was taking bath in the canal at a distance of about one jareb from the wardat, Mashirnama of wardat also shows that wardat was visible to this witness who was taking bath in the disused canal. There is nothing adverse in the cross- examination of this witness to suggest that he had not seen the incident. We are, therefore, of the considered opinion that ocular testimony is worthy of reliance and the witnesses are natural and have spoken truth about the version of incident. We are impressed by the evidence of P. W. Ghulam Hadi who was himself injured at the time of incident. 7. Ocular evidence further finds support from medical evidence according to which deceased Ghulam Hyder sustained five injuries out of which four were incised wounds and one was abrasion. The number of injuries is consistent with ocular version that appellants Shafi Muhammad and Muhammad Saleh caused injuries to Ghulam Hyder. In, the same way four incised wounds were found on the person of injured Ghulam Hadi and the number of injuries is consistent with ocular version that appellant Abdul Rehman and Dino gave blows with hatchets to Ghulam Hadi on his head. Medical evidence may not lend corroboration qua accused specifically but the number and nature of injuries does. Afford corroboration to the extent stated above. 8. It was then contended that motive is not established and it is the case of prosecution that the reason for, attack was trampling of grass which when denied, it was altered to dispute over the plot of land, to prove which no evidence has been produced .It appears from the evidence on the record that acquitted co-accused Usman called deceased Ghulam Hyder and his brother Ghulam Hadi to lucerine cultivation and inquired from them as to why their grass was trampled by their animals. This allegation was denied by deceased and his brother who specifically stated that they were present and saw to it that their animals did not trespass into the grass of appellants and were grazing away from the spot. At that moment animals were not found in the cultivation, hence Usman switched over to the other allegation that why their plot was occupied by deceased and his
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companions. In fact the appellants and co-accused Usman wanted to attack the deceased and they had to invent some excuse. This version as stated above is testified in the Court by complainant, injured P. W. Ghulam Hadi and the other two eye-witnesses. It is mentioned in the mashirnama of wardat that grass was trampled but by the people. It is not necessary that for every crime are committed without motive or in some cases motive does not come to surface. In such circumstances prosecution case as a whole does not stand falsified on this account only. 9. So far recovery of incriminating crime weapons from the appel--lants is concerned prosecution has examined P. W. 9, mashir Baxial. He is an omni-bus mashir in the sense that he had joined the investigation right from the very beginning and has attested all the mashirnamas and other documents prepared during the course of the investigation including mashirnama relating to the recovery of weapons from the appellants. This mashir is Hyderaai by caste and apparently does not appear to be related to either party. He has stated that he resided about two miles away from the place of scene of offence. According to this mashir appellant Shafi Muhammad while in custody took out a hatchet from his house lying under the cot and produced before the Police. The hatchet was blood--stained. This witness has further specifically stated in his examination-in--- chief that hatchet was recovered by Police under mashirnama but was not sealed by the Police in his presence. He went on further to say that appellant Saleh while in custody led to the recovery of blood-stained hatchet from the roof of a thatched but and produced the same before Police which was secured and covered in a piece of cloth. Appellant Din Muhammad alias Dino while in custody led to his house and took out a hatchet from a room of his house and produced the same before Police. He did not see blood stains on that hatchet. Appellant Shafi Muhammad once again produced another hatchet from his house and disclosed that it was of appellant Abdul Rehman. The hatchet was blood-stained and Police secured the same but covered if with a piece of cloth. This mashir has further stated that the Police thereafter arrested appellant Abdul Rehman and acquitted co-accused Usman and prepared mashirnama Exh. 25. While this mashir was being cross-examined by the defence in the trial Court, he categorically stated that Police had not sealed the hatchets is his presence but had covered the same in a piece of cloth. He further admit--ted that appellant Shafi Muhammad had produced a hatchet lying under the cot in front of his house. He did not know if Shafi Muhammad had three brothers. He knew only Shafi Muhammad and his brother Abdul Rehman, who lived in one and the same house. Surprisingly, this mashir was not declared hostile by the prosecution and was not cross-examined from which an inference can be drawn that prosecution has not challenged the veracity of this witness and has not called in question his version. His evidence as stated above is inconsistent with the prosecution case. Co--- mashir Haji Jhando has not been examined by the prosecution. It is, therefore, clear that prosecution proposed to rely upon the evidence of mashir Baxial as it is without any challenge with regard to its truthfulness. 10. It also appears from the record that mashir Baxial was examined by the trial Court at S. No. 9 as the last witness and before him S. H. O. Inayatullah got himself examined in the trial Court as P. W. 7 and during the course of his evidence he has produced all the mashirnamas including those relating to the recovery of crime weapons from the appellants. According to S. H. O. He went to village Pacca-Channa where he arrested appellants Shafi Muhammad, Dino alias Din Muhammad and Muhammad Saleh. Appellant Shafi Muhammad while-in custody led to the recovery of hatchet lying under the cot in the courtyard of his house. The hatchet was stained with blood and was put into a sealed parcel. Similarly, appel--lant Muhammad Saleh took out a hatchet from the roof of cattle shed in front of his house and produced the same. The hatchet was found to .Be stained with blood and two pieces of hair were sticking on the hatchet. The hatchet was put into sealed parcel. Thereafter appellant Dino led to the recovery of hatchet which was lying at the back of corn-bin on the western side of a room of his house. The hatchet was blood-stained and put into
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a sealed parcel. Thereafter appellant Shafi Muhammad volun--tarily pointed out another blood- stained hatchet lying under the cot in his house about which he disclosed that it belonged to his brother appellant Abdul…
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