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Petitioner: NOOR AHMED and 3 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui Title: NOOR AHMED and 3 others vs THE STATE Case No.: Criminal Appeal No.148 of 2000 Date of Judgment:2004-05-24 Reported As: 2004 P C R L J 1455 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This appeal is directed against the judgment, dated 27-9-2000, passed by the learned II- Additional Sessions Judge, Hyderabad, in Sessions Case No,239 of 1988, whereby all the four appellants have been convicted for the commission of offence punishable under section 302, read with section 34, P.P.C. And each one of them has been sentenced to undergo life imprisonment. The appellants have been further directed to pay compensation of Rs.25,000 each under section 544- A, Cr.P.C. To the heirs of deceased Umar and in default they have been further sentenced to suffer rigorous imprisonment for two years more. The benefit of section 382-B, Cr.P.C. Has been extended to them. ' The relevant facts are that on 27-5-1988 complainant Allah Dino appeared at P.P. Mulla Katiar of Police Station Bulri Shah Karim at 4-00 a.m. And lodged report stating therein that he is Hari of Sikandar Shah. On 26-5-1988 he was in his village, while his brother Ahsan and his sons Rajab and Muhammad Umar left his house at 8-00 p.m. In a bullock cart for a brick-kiln where they were working as labourers. At about 10-00 p.m., his brother Ahsan came and informed that, he, Umar and Rajab were going on bullock cart with firewood loaded on the cart towards the brick-kiln. At about 9-00 p.m. They reached near Malook Shah Wassi and saw four persons on the moon-light who were identified as Noor Ahmed, Qadoo son of Ismail by caste Mohana, Rafiq son of Ismail and Maman son of Loung by caste Gambhir. Noor Ahmed was armed with a gun and three other persons were armed with hatchets. They called Ahsan, Umar and Rajab to stop the bullock cart. At that time Ahsan and Rajab were sitting over the bullock cart and Umar was ahead of bullock cart and was holding the reins of the bullocks in his hand. Noor Ahmed abused and told that today they will not spare them. Saying so, he shot a straight fire with his gun at Muhammad Umar which hit
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Muhammad Umar, who fell down. Thereafter, Rafiq and Maman caught hold of Umar and Qadoo slaughtered Umar by cutting his neck with the hatchet. Thereafter, all the four culprits surrounded them and accused Noor Ahmed fired towards Ahsan and Rajab. Ahsan and Rajab went at some distance from the place of occurrence whereafter all the accused persons went towards the jungle. After the accused persons decamped, the witnesses came near Muhammad Umar and found that he had firearm injury on right side of his chest and his neck was cut. He was bleeding and had died. Ahsan informed that he left Rajab at the dead body and came to complainant to inform about the incident. On receiving this information from Ahsan the complainant proceeded to the place of incident alongwith Ahsan and found his son Muhammad Umar lying dead. The complainant thereafter left Ahsan and Rajab with the dead body and returned to his village where he narrated the incident to his Nekmard Ghulam Rasool Shah. He asked the complainant to lodge F.I.R. With police and, therefore, he went to P.P. Mulla Katiar to lodge the report. He further stated in the F.I.R. That about 7/8 months ago an encounter had taken place between police and Ahmed maternal-uncle of Qadoo and Noor Ahmed. Deceased Muhammad Umar son of complainant had assisted police and Ahmed was arrested and confined in jail. Qadoo and Noor Ahmed murdered Muhammad Umar in order to take revenge of the arrest of their maternal-uncle Ahmed. A.S.-I. Hakim Ali, Incharge P.P. Mulla Katiar, recorded the report in daily diary and sent a copy to Police Station Bulri Shah Karim for incorporation in 154, Cr.P.C. Book. After registration of case he visited the place of incident on pointation of complainant. The place of incident was situated on the road leading from the tomb of Malook Shah Wassi and the dead body of deceased Umar was found lying there. He prepared Mashirnama in presence of Mashirs Ishaque and Ahsan. He then prepared inquest report of the dead body in presence of Mashirs. He then sent the dead body to hospital for post-mortem and recorded 161, statements of witnesses. He subsequently secured the clothes of 'deceased, under Mashirnama. On 295-1988, he arrested accused Noor Ahmed and Qadoo from their house in presence of Mashirs, Ishaque and Ahsan and prepared Mashirnama. He secured gun from accused Noor Ahmed and hatchet from accused Qadoo and prepared Mashirnamas. He secured licence of the gun also from accused Noor Ahmed. On 6-6-1988 he arrested accused Maman and Rafiq and prepared Mashirnama. He secured hatchets from these accused as well. During the course of investigation 164, Cr.P.C. Statements of P. Ws. Were also recorded. The blood- stained clothes, hatchets, gun and the empties were sent to the Chemical Examiner and Ballistic Expert. After completion of investigation all the four accused persons were challaned to face trial. ' All the accused persons pleaded not guilty to the charge. The prosecution examined P.W.1 Allah Dino Exh.8, who produced F.I.R. Exh.9, P.W.2 Ahsan Exh.10, who produced his 164, Cr.P.C. Statement Exh.11, P.W.3 Rajab Exh.12, who also produced his 164, Cr.P.C. Statement Exh.13, P.W.4 S.I.P. Hakim Ali Exh.13 the Investigating Officer who produced Mashirnamas and reports of Chemical Examiner and Ballistic Expert. P.W.5 Muhammad Ishaque Mashir was also examined who did not support the prosecution case. P.W.6 Dr. Syed Iqbal Ahmed produced the post-mortem report and P.W.7 Haji Ibrahim Tapedar produced the sketch of place of incident. ' Accused Noor Ahmed was examined under section 342, who denied the prosecution allegations. He admitted his arrest on 29-5-1988 and production of gun and licence before the police. He stated. That accused Qadoo is his real brother while accused Rafiq and Maman were his co- villagers. He stated that he had old enmity with complainant party and in the year 1987 complainant party made murderous assault upon his maternal-uncle Ahmed who filed a direct complaint against complainant Allah Dino, P.W. Rajab, deceased Umar and others. He was a witness in that case. He produced certified copy of direct complaint Exn.34-A and the copy of his statement under section 202, Cr.P.C. As Exh.34-B. He further stated that in the year 1988 complainant Allah Dino and P.W. Rajab, deceased Umar and his relatives gave threats of dire consequences and he filed a direct complaint under sections 506, 147 and 148, P.P.C. He produced
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certified copy of the complaint as Exh.34-C. He stated that due to above enmity the complainant party falsely implicated them in this case. ' Accused Qadoo, Rafiq and Maman were also examined under section 342 and they denied the prosecution allegations and stated that they have been falsely implicated due to enmity. None of the accused examined himself on oath under section 340(2), Cr.P.C. And no defence witness was examined. ' The learned trial Court framed the following points for determination:-- (1) Whether on 26-5-1988 at about 9-00 p.m. At Pacca road leading from tomb to Wassi Malook Shah near Haran Jagir, Deh Mir Wah, Taluka Tando Muhammad Khan deceased Umar received fire-arm and hatchets injuries and he died as result thereof? (2) Whether on the abovesaid date, time and place accused Noor Ahmed, Qadoo, Rafique and Maman duly armed with gun and hatchets in furtherance of their common intention have committed the murder of deceased Umar by firing at him and also giving him sharp sided hatchet blows on his neck, thereby committed an offence punishable under sections 302, 34, P.P.C.? (3) What should the order be? ' On the basis of ocular testimony and the medical evidence the learned trial Court decided the point No,1 in affirmative. The point No,2 was also decided in affirmative and all the four accused/appellants were convicted and sentenced as narrated in the opening para of this judgment. ' I have heard Mr. Aijaz Shaikh, learned counsel for the appellants Nos.1 and 2, Mr. Allah Bachayo Soomro, learned Advocate for appellants Nos.3 and 4 and Mr. Rasheed Ahmed Qureshi, Assistant A.-G. For the State. ' The learned Advocates for the appellants have not disputed the finding of learned trial Court on point No,1 to the effect that deceased Umar died as a result of fire-arm and hatchet injuries. No discussion is, therefore, required on this point. Both the learned Advocates have addressed their arguments.On point No,2 pertaining to the involvement of appellants in committing murder of deceased Umar. ' Mr. Allah Bachayo Soomro, has submitted that complainant Allah Dino is father of deceased Umar and eye-witnesses Ahsan and Rajab are uncle and brother respectively of the deceased. He has not denied the fact that all the four appellants are nominated in the F.I.R. And appellant Noor Ahmed is stated to have been armed with gun and other three appellants to have been armed with hatchets. He has however, submitted that P.W.1 complainant Allah Dino has not implicated appellants Maman and Rafique in his 'deposition at trial. He has referred to the examination-in- chief of P.W. Allah Dino wherein he stated that P.W. Ahsan informed him that accused Noor Ahmed fired upon his son deceased Umar, who fell down and then accused Qadir Bux (Qadoo) cut his throat and on receiving this information, he alongwith his brother Ahsan went to the place of occurrence where he found deceased Umar lying dead. He has further submitted that P.W.2 Ahsan who is uncle of deceased Umar and is alleged to be an eye-witness of the incident has deviated from the version contained in the F.I.R. This witness has stated that before the incident he noticed accused Noor Ahmad, Rafique, Maman and Qadoo standing at the place of incident. Accused Noor Ahmed was armed with a gun, accused Qadoo with hatchet, accused Maman with dagger and Rafique with Lathi. Accused Noor Ahmed challenged them saying that he was going to take revenge of the murder of his maternal-uncle from deceased Umar. Accused Noor Ahmed fired gun shot at Umar which hit him and he fell down. Mr. Allah Bachayo has submitted that according to F.I.R. Accused Maman (Muhammad) and Rafique were also armed with the hatchets and not the dagger and Lathi as stated by P.W. Ahsan. Mr. Allah Bachayo has further submitted that according to P.W. Ahsan accused Noor Ahmed aimed loaded gun at them and asked to be on the bullock cart and not to come down else they shall also be gunned down. Accused Rafique and Maman then
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caught deceased Umar from his legs and arms and accused Qadoo cut his throat with hatchet. He has further submitted that in his cross-examination P.W. Ahsan affirmed that accused Noor Ahmed did not fire at them after they were asked not to move. He has contended that in his 161 statement P.W. Ahsan has stated that accused Noor Ahmed had shot straight fires at them but they did not sustain any firearm injury. He has further contended that according to P.W. Ahsan accused Qadoo had used his hatchet to slaughter the deceased Umar and had not caused any other hatchet injury to the deceased. He has submitted that according to Medical Officer there were four injuries caused by sharp cutting weapon such as hatchet. Mr. Allah Bachayo has submitted that although P.W.3 Rajab, brother of deceased Umar has stated that he was accompanying the 'deceased at the time of incident and had identified all the four accused persons but he has not received any injury from the shots fired by Noor Ahmed and, therefore, his presence at the place of incident is doubtful. He has maintained that P.W. Ahsan stated that accused Noor Ahmed merely threatened to fire at them but actually did not fire when they did not move from the bullock cart but P.W. Rajab has stated that accused Noor Ahmed fired in the air to scare them. This witness has stated that accused Maman and Rafique were armed with hatchets. He has further submitted that according to 161 statement accused Noor Ahmed resorted to straight fire on the two eyewitnesses but in his statement at trial P.W. Rajab has denied it and has stated that accused Noor Ahmed fired in the air after giving fatal blow to deceased Umar, Mr, Allah Bachayo Soomro, has further argued that accused Nobr Ahmed and Qadoo were arrested on 29-5-1988 and a gun alongwith licence were secured from accused Noor Ahmed and hatchet was secured from accused Qadoo. Accused Maman and Rafique were arrested on 6-6-1988 and both of them had produced the hatchets. Mr. Allah Bachayo Soomro, has urged that in cross-examination the Investigating Officer Hakim Ali has conceded that the presence of bullock cart at the place of incident is not mentioned in the Mashirnama. The Investigating Officer P.W. Hakim Ali lncharge P.P. Mulla Katiar has stated that Crime No,41 of 1988 was assigned at Police Station Bulri Shah Karim on 27-5-1988 at 9-30 a.m. But in the Mashirnama of Wardat, inquest report and other documents prepared at the place of incident at about 4-45 and 5-00 a.m. The crime number is shown. The Investigating Officer has confirmed that P.W. Ahsan had not stated in his 161, Cr.P.C. Statement that Maman was armed with dagger and Rafique was armed with Lathi. He has further pointed out that the Investigating Officer has stated in cross-examination that in his 161, Cr.P.C. Statement P.W. Ahsan has not stated that accused Nooi Ahmed had stated before firing at deceased Umar that he was taking revenge of his uncle. The Investigating Officer has further stated that P.W. Ahsan stated in his 161 statement that accused Noor Ahmed had fired at them also thrice. Mr. Allah Bachayo has contended that it appears that all the Mashirnamas were prepared subsequently, and not at the place of incident as stated by the Investigating Officer because it was not possible to mention the crime number in the Mashirnamas which were allegedly prepared at the place of incident early in the morning. It is further pointed out that the Investigating Officer was initially examined on 18-5-1998 and on that date the hatchets allegedly secured from accused Maman and Rafique were not available and the hatchets were subsequently produced on 23-4-1999 and the Investigating Officer conceded that the label affixed on the handle of hatchets allegedly recovered from accused Maman and Rafique were fresh and the handwriting thereon was different from the handwriting on the other case property. He has further pointed out that the incident took place on 27-51988, accused Noor Ahmed and Qadoo were arrested on 29-5-1998 but the properties were sent to Chemical Examiner on 15- 8-1988. Mr. Allah Bachayo has submitted that in fact it is an unwitnessed incident. Deceased Umar had enmities and 'he was found dead. The accused persons have been implicated falsely due to long-standing enmity between the parties. ' Mr. Aijaz Ahmed Shaikh, learned counsel for respondents Nos.1 and 2 has submitted that there is delay in the lodging of F.I.R. He has pointed out that the incident took place at 9-00 p.m. On 26-5-
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1988 while the F.I.R. Was lodged at P.P. Mulla Katiar on 27-5-1988 at 4-00 a.m. He has next contended that the recoveries are doubtful as P.W. Muhammad Ishaque Mashir has not supported and has stated that his signatures were obtained by police on Mashirnamas which were already written and neither any arrest was made in his presence nor any recovery was made. ' Mr. Shaikh, has proceeded on to argue that there are contradictions in the statements of witnesses. He has pointed out that P.W.2 Ahsan stated in the cross-examination that accused Noor Ahmed opened fire from the distance of about 8/10 feet from the deceased. Another eye-witness P.W.3 Rajab has stated that the culprits were in front of them and deceased Umar was fired at by accused Noor Ahmed from the distance of about 30 paces. The Medical Officer P.W.6 Syed Muhammad Iqbal Ahmed has stated that the injury No,2 had burn marks and was fired at from the distance of about 4 feet or less than 4 feet. He has reiterated the arguments of Mr. Allah Bachayo Soomro pointing out that the witnesses have given inconsistent statements regarding the weapons held by co-accused Maman and Rafique. He has further contended that P.W.2 Ahsan has stated that at the time of incident the deceased was sitting near the Pinjari and they were sitting on the fuel material which was on higher level. This witness has further stated that the fuel material consisted of Devi bushes which is a thorny material. P.W.3 Rajab also stated in examination-in- chief that when Noor Ahmed fired at deceased he was sitting on the front side of bullock cart. On receiving fire-arm injury he fell down. However, in cross-examination he has said that deceased Umar was ahead of the bullocks and he alongwith Ahsan were sitting on fuel material which was of Khabar bushes. It was not Devi or other thorny material. ' He has further argued that according to Mashirnama of recovery (Exh.19) the gun was produced by accused Noor Ahmed on 29-5-1988, while according to report submitted by Assistant Inspector-General of Police Criminalistic Division (Exh.24/B) the gun was received on 1-12-1988. There is a delay of about 6 months in sending the gun to the Ballistic Expert. (It would be appropriate to mention here that according to Exh.24/B the gun was sent alongwith cartridges vide letter dated 2-8-1988). ' Mr. Shaikh, has further argued that blood groups of deceased found on the hatchet have not been determined and consequentty, mere presence of blood-stains on the earth, clothes of the deceased and on the hatchet is not sufficient to prove that the blood-stains on the hatchet were of deceased Umar. ' In support of his contentions he has placed reliance on the following judgments:-- ' (1) Majid Ali Khan v. Sheikh Murtaza Ali 2003 SCMR 1419 (2) Yousif v. The State PLD 1988 Kar. 521. ' He has further maintained that Investigating Officer has not said anything about recovery of empties or sealing thereof, therefore, the prosecution cannot rely on the report of Ballistic Expert. That the empties were fired from the licensed gun of accused Noor Ahmed. In this regard he has placed reliance on the judgment in the case of Syed Saeed Muhammad Shah v. The State 1993 SCMR 550. ' On the other hand Mr. Rasheed Ahmed Qureshi, learned A.A.-G. Has forcefully supported the conviction and sentence awarded to the appellants. He has submitted that there is no inordinate or unexplained delay in lodging of F.I.R. He has pointed out that the complainant has explained that the incident was narrated to him by his brother Ahsan at about 10-00 p.m. After receiving the information he went to the place of incident and found his son Muhammad Umar lying dead. Mr. Qureshi has argued that the conduct is very natural. On receiving information of murder of a son, a father would first of all rush to the place of incident to see the dead body himself. After seeing the dead body of his son the complainant came back to his village and in accordance with the custom prevailing in the interior of Sindh, he narrated the incident to his Nekmard and on his advice went to lodge F.I.R. At P.P. Mulla Katiar which is about 6 miles away from the place of incident. The F.I.R. Was
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lodged within 6 hours of the incident which cannot be termed as inordinate delay and is fully explained, therefore, no adverse inference can be drawn. Replying to the contention by the learned Advocates for the appellants that complainant has not given the full details as narrated by P.Ws. Ahsan and Rajab, the learned A.A.-G. Has submitted that complainant Allah Dino is not an eye- witness. The eye-witnesses are P.Ws. Ahsan and Rajab who have given full account of the incident. The learned A.A.-G. Has further contended that the incident took place in the year 1988, the examination-in-chief of complainant was partly recorded on 19-5-1995 and the cross-examination was conducted on 25-7-1996. The statement of P.W. Ahsan was recorded on 25-7-1996 and the statement of P.W.3 Rajib was also recorded on the same date. The examination-in-chief of Investigating Officer Hakim Ali was recorded on 1-10-1996. The cross-examination was partly recorded on 18-5-1988 and partly on 2-5-2000. The learned A.A.-G. Has urged that because of recording of statements of the witnesses after lapse of several years from the incident, the human memory is bound to betray in matters of details. He has submitted that minor inconsistencies in the statements of witnesses show that they were not tutored and deposed in the natural way and in the ordinary course. According to him the minor inconsistencies due to difference in perceptions, mental , faculty of retention of facts and capacity to narrate the details is very natural. He has contended that both the eye-witnesses have fully supported the prosecution case on all material points and there is no contradiction in their testimony so far the material facts are concerned. Both the witnesses are throughout consistent on the point that appellant, Noor Ahmed shot a straight fire at deceased Umar which landed on his chest and he fell from the bullock cart. They are also consistent on the point that thereafter accused Maman and Rafique caught hold of deceased Umar and accused Qadoo slaughtered deceased Umar with his hatchet. The learned A.A.-G. Has pointed out that this ocular version of the two eye-witnesses is fully supported with the medical testimony. P.W.6 Syed Muhammad Iqbal Medical Officer who conducted the post-mortem has produced the post-mortem report Ex.28/A and has deposed that the injury No,1 was an incised wound measuring 7.0 c.m. x 4 c.m. x bone deep in front of the neck cutting the skin, fascia, muscles, trachea, major vessels of the neck and periosterum which was caused by a sharp cutting weapon while injury No,2 on the chest was caused with fire-arm and these two injuries were sufficient in the ordinary course to cause death. He has further stated that had there been injury No,2 only, the deceased would not have died so early. He has explained that by sharp cutting weapon he meant the hatchet/axe. ' The learned A.A.-G. Finally concluded contending that notwithstanding minor inconsistencies which are in natural course the prosecution has fully established its case on all material points. He has submitted that the inconsistency on the point of weapons held by accused Maman and Rafique is immaterial because the weapons held by them were not used and the prosecution case against them is that in furtherance of the common intention they caught hold of deceased Umar after he sustained fire-arm injury, facilitating accused Qadoo in slaughtering the deceased by cutting his neck. ' Before proceeding with the appreciation of evidence on record in the light of contentions raised by the learned Advocates for the parties I would like to reproduce dicta as laid down in the judgments relied upon by Mr. Aijaz Ahmed Shaikh learned counsel for the appellants Nos.1 and 2. ' In the case of Yousif Ali v. The State PLD 1988 Kar. 521, it has been held as follows:-- "On the question of conflict between ocular and medical evidence, it is held, by the Supreme Court of Pakistan in the case of Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1992 that prosecution and not the accused is obliged to clarify position, when there is apparent contradiction in medical report and ocular testimony. It is held in the case of Sardar Baig v. The State 1978 PCr.LJ 690 that if injured eye-witness stands clearly belied by medical evidence, then in
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those circumstances, medical evidence is to be preferred and further it would be highly dangerous to rely upon evidence of such witness for the purpose of conviction." ' The recovery of crime-empty from the spot is witnessed by P.W.8 Mashir Ghulam Hussain, who did not support the prosecution .Case in the trial and stated that police did not' visit Vardat and further denied attestation of Mashirnama of Vardat Exh.P.13. This witness also denied recovery of crime- empty from the spot. Co-Mashir Ghulam Nabi was not examined ... In these circumstances prosecution has failed to prove recovery of crime-empty through Mashirs. ' There is no dispute about the fact that the gun is licensed and belongs to appellant Yousuf, hence he does not deny its ownership and recovery but he has claimed in his 342; Cr.P.C. Statement that 'it was taken away from his house in his absence. The most important question is whether crime- empty and gun were sealed promptly at the time of recovery in presence of Mashirs. This is where prosecution ease has back-fired because there is no legal and believable evidence emanating from Mashirs as has been discussed above. Appellant Yousif examined himself on oath and stated that gun belonged to him…
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