1988 P Cr (PLP)

Mohammad Ashraf HC Police PW-6 has deposited that on 24-5-1984 he was Head Constable at P.S. Daur. On that day accused Abdur Rasheed Sheikh came at P.S. and produced blood-stained hatchet before him. He was also wearing blood-stained clothes. Thereafter, S.H.O. Zafaruddin Farooqui secured the clothes and sealed the articles it his presence and prepared such Mashirnama. He has produced Mashirnama Ex.14-A. He had referred injured Aslam to the Doctor and letter has been produced as Ex.15-B. In cross-examination to Advocate of accused Abdur Rasheed Sheikh he deposed 'that accused appeared before them at 5.00 p.m. S.H.O. had tried for the arrest of the accused prior to his arrival. There were other cases filed under section 107, Cr.P.C. between the accused and deceased prior to this incident. Dr. Mohammad Ismail PW-7 has deposed that on 24-5-1984 he was C.M.O. in Nawabshah, Medical College Hospital. On that day he received injured Mohammad Aslam from S.H.O. Daur for examination, treatment and certificate. He examined the injured and found the following injuries on his person: Incised wound 10 cm x 4 cm x bone deep at right parito occipital region with brain matter out from injury. Meninges were cut. X-ray skull shows fracture of parito occipital bone on right side. ' According to him the injury was grievous in 7 nature and was caused by sharp cutting weapon such as hatchet. The injury was about 12 hours old at the time of examination, He has produced the certificate as Ex. 15-A . Dr. Mohammad Tariq PQ-8 who carried on the post-mortem on the dead body of Mohammad Aslam has deposed that on 29-5-1984 he was C.M.O. at Nawabshah Medical College Hospital on external examination, he found the following injuries on the person of deceased. An incised wound 10 cm x 4 cm x bone deep with brain matter out from the injury at right parito occipital region. On internal examination he found fracture of skull at right parito occipital bone. Membrane was ruptured, brain matter was ruptured. On external as well as internal examination he was of the opinion that the death of deceased was due to haemorrhage and shock which was caused by injury to vital organ such as brain. Injury was caused by sharp cutting weapon and was ante-mortem. The time which elapsed between death and post-mortem was about 9 hours. He issued such report which has been produced as Ex.16-A. S.H.O. Zaffaruddin Farooqui PW-9 has deposed that on 24-5-1984 he was SHO Daur. On that day complainant Noor Mohammad came at the P.S. and lodged his F.I.R. which he had recorded and obtained his signature. The rest of the investigation carried on by him has already been mentioned in the earlier part of this judgment, He has produced Mashirnama of arrest of accused Ellahi Bux Shah and Imam Shah as Ex.17-A. He has produced the chemical report as Ex.17-B. In cross-examination he has deposed that Police Station was half furlong away from the place of incident. The Wardat was in the middle of Bazar. There are hotels and shops belonging to people of different castes around the place of Wardat. When he reached at the Wardat there were 100-200 persons present at the Wardat. He examined DWs. Ghulam Hussain, Ayoob, Ghulam Hyder and others who had the shops near the Wardat. He did not remember whether in his tenure deceased Aslam had received knife injurios and such report was lodged. He has admitted that from his investigation he came to know that accused Ellahi Bux Shah and Imam Shah were innocent and thereafter he recommended that they should be let off. After the close of prosecution case the statements of the appellants were recorded under section 342, Cr.P.C. in which they denied the allegations. However, accused Abdur Rasheed examined Abdul Ghafoor DW-1 and Nek Mohammad DW-2 while appellants Ellahi Bux and Imam Shah examined Hafiz Mohammad Falak Sher DW-3 and Haji Mohammad Essa DW-4. Abdul Ghafoor DW-1 had deposed that he is vegetable seller. He knew the parties. PWs Aijaz and Mohammad Tahir are related to the complainant Noor Mohammad. His shop was 3/4 paces away from the place of Wardat. The present incident took place about 3 years back. He knew accused Abdur Rasheed. He saw deceased while he was being given injuries and was raising cries. There were five persons who were causing injuries to Aslam. They were with muffeled faces. He did not identify those persons but Abdur Rasheed Sheikh was not present amongst those persons. PWs Aijaz, Tahir Mohammad and Noor Mohammad were not present at the time of incident. After sometime complainant Noor Mohammad alone came there. In cross-examination he had deposed that he had not brought the identity card. He denied that he was not residing at Daur town. He denied that he was resident of Pirjo Goth District Khairpur. It was not a fact that accused Abdur Rasheed Sheikh was son of his sister but he was related to him. He denied a suggestion that accused Rasheed Sheikh was his son-in-law. He denied that he was not present at the Wardat. On the day of incident Nek Mohammad DW-2 has deposed that he knows the parties. He runs a hotel in Daur Town and his hotel is situated 4/5 paces away from the place of incident. There were five persons who committed murder of Aslam. PWs Tahir Mohammad, Aijaz and complainant were not present at the time of incident. The accused were not known to him. At the time accused Abdur Rasheed Sheikh was not present there. In cross-examination he has deposed that he is residing at village Lyari which was 10 miles away from the place of incident. He was not a Nekmard. There were 20-22 persons present at the time of incident. He has denied a suggestion that actually accused Rasheed Sheikh had committed murder and that he was giving false evidence. Hafiz Mohammad Falak Sher DW-3 has deposed that he is Hafiz-e-Quran. On 24-5-1984 murder of deceased Aslam was committed about 20 feet away from his shop. At the time of incident at about 9.30 a.m, he was present at the shop. He did not see accused Ellahi Bux Shah and Imam Shah at the place of Wardat at the time of incident. He only saw one person with a muffled face running away. He saw that Aslam was lying injured there and his heirs came and took him away. In cross-examination he has deposed that he had seen accused Rasheed Sheikh at P.S. He did not make any application to Police authorities that accused Imam .Shah and Ellahi Bux Shah were not present at the place of Wardat. He has denied a suggestion that he was man of Ch. Lateef and that he was giving false evidence. Haji Mohammad Essa DW-4 has deposed that he is Hakeem and has a shop in Daur town. On 24-5-1984 at about 8-30 p.m. he was sitting at his shop when Imam Shah came to him as he was suffering from stomach ache for taking medicines. He gave him medicine and after a while he vomitted. He again gave him medicine and asked him to sleep in the shop. Thereafter, accused Imam Shah left his shop at 12.00 noon Police had examined him. In cross-examination he has deposed that sometime he used to enter the name and parentage of his patient in his register and some time not. He did not keep any register of patients at his shop. Accused Imam Shah was known to him prior to this incident. He is resident of Daur town. The place of incident was one and half furlongs away from his shop. He came to know that Imam Shah was arrested in a murder case. He did not make any application to police that Imam Shah had been implicated falsely. He did not remember as to when his statement was recorded by police. He denied a suggestion that he was on visiting terms with accused Imam Shah and was therefore giving false evidence. The learned trial Judge while relying upon the occular evidence and recovery of blood-stained clothes and hatchet from the appellant Abdur Rasheed convicted the appellants as described above and the present appeal is directed against the above judgment of conviction. It has been contended by Mr. Mohammad Hayat Junejo learned counsel appearing for the appellants that the appellants Ellahi Bux Shah and Imam Shah had no motive to be party to the murder of deceased Mohammad Aslam. That Ellahi Bux Shah and Imam Shah had no concern with co-accused Rasheed Sheikh, and the prosecution story that the two appellants caught hold of the deceased under the orders of Rasheed Sheikh was absurd. It was further contended that the incident had taken place in the town and the place of incident was surrounded by shops and hotels, but not a single independent witness was cited or examined by the prosecution. That since there was no corroboration of interested testimony the conviction of the appellants was bad in law. As far as the two appellants were concerned, their conviction was liable to be set aside. That as far as appellant Rasheed was concerned it was contended by Mr. Mohammad Hayat Junejo that it was a chance meeting and there was no evidence that there was any pre-planning on the part of the appellant. He has further contended that there was no evidence that the injury caused by appellant Rasheed Sheikh was of grievans nature, and therefore, the offence if any will fall under section 304 Part II, P.P.C. Mr, Rasheed Tariq Khan learned counsel appearing for the State has contended that there was motive on the part of appellant Rasheed Sheikh which was mentioned even in the F.I.R. That there was ocular evidence of independent witnesses who had no enmity with the appellants, therefore, the case against the appellants was proved beyond reasonable doubt, and the judgment of the learned trial Judge does not call for any interference. Mr. S. Murtaza Hussain learned counsel appearing for the complainant has contended that the ocular evidence was natural, straightforward, and was free from any doubt. That the witnesses had no enmity against the appellants and therefore, their evidence itself was enough to form basis for conviction. Even there was recovery from appellant Rasheed. I have considered the contentions of the learned counsel, and have gone through the R & P of the case. The incident had admittedly taken place in the town of Daur and there is a Town Committee. The place of Wardat was surrounded by shops and hotels on both sides but not a single witness from the shop-keepers has been cited or examined as a witness in this case. The F.I.R. as well as the evidence of witness in examination-in-chief does not show that appellants Ellahi Bux Shah and Imam Shah had any motive to kill deceased Mohammad Aslam. Even there was no allegation that the two appellants were connected in any way with appellant Rasheed Sheikh. According to the prosecution Ellahi Bux Shah was armed with pistol while Imam Shah was empty handed. There was no allegation that Ellahi Bux Shah fired at the deceased. From the circumstances of the case it appears that there was a chance meeting between the parties, and it was appellant Rasheed Sheikh who gave a single hatchet blow on the head of Mohammad Aslam. The very fact that accused Imam Shah was empty handed, while accused Ellahi Bux Shah though armed with pistol did not fire at the deceased goes a long way to show that there was no common intention on the part of the two appellants to kill deceased Mohammad Aslam. The allegation of catching hold is further falsified by the fact that no blood-stained clothes were secured from the two appellants. It was also admitted by P.W. Mohammad Tahir that accused Imam Shah and Elahi Bux Shah were not on inimical terms with deceased. Ever the police had found the appellants Ellahi Bux Shah and Imam Shah innocent during the investigation, and therefore, they were let off. It was on the direct complainant filed by the complainant that the process was issued against the appellants, and they were tried along with main accused Rasheed Sheikh P.W. Mohammad Tahir and P.W. Aijaz were persons who had come on cries of the complainant, and they did not know how the incident took place. There was no corroborative evidence against appellants Imam Shah and Ellahi Bux Shah except the ocular evidence of complainant, Aijaz and Mohammad Tahir. I am, therefore, of the considered view that looking to the circumstances of the case, the prosecution had failed to prove its case against appellants Imam Shah and Ellahi Bux Shah beyond reasonable doubt. I, therefore, allow this appeal, set aside the conviction and sentence of the appellants, and acquit them. They shall be set at liberty forthwith if not required in any other case. As far as appellant Rasheed Sheikh was concerned there was evidence of motive, ocular evidence of complainant, PWs. Mohammad Tahir and Aijaz, subsequent conduct in appearing at the police station alongwith blood-stained hatchet and clothes. The Chemical Report, regarding the hatchet and clothes is also in positive. The ocular evidence is fully corroborated by circumstantial evidence including the motive and medical evidence. Even the learned counsel appearing for appellant Rasheed Sheikh has not seriously challenged the evidence mentioned above as far as this appellant was concerned. The only contention raised by the learned counsel for the appellant Rasheed -Shaikh was that the medical evidence does not show that the injury caused by him to deceased Mohammad Aslam was sufficient in ordinary course of nature to cause death. In this connection the evidence of Dr. Mohammad Ismail P.W.7, Dr. Mohammad Tariq PW.8, initial Medical, Certificate as well as post-mortem Report Ex.15-A and Ex.16-A do not show that the injury received by deceased Mohammad Aslam was sufficient in ordinary course of nature to cause death. In Mahinwal v. The State 1975 P Cr. L J 1121 it was held by a Division Bench of this Court of which his Lordship Mr. Justice Mohammad Haleem the present Chief Justice of Pakistan was a member, was pleased to observe that the "appellant had caused a single blow with hatchet and that there was no motive to kill deceased. In addition thereto it was observed that although the medical evidence shows that the deceased died of intracranial haemorrhage yet there is no such an expression that the injury was sufficient in the ordinary course of nature to cause death. Therefore the conviction of the appellant was altered from section 302 to section 304 Part 11, C.P.C. and sentence of imprisonment for life was substituted by a sentence of seven years' R .I . In Emmonuel Bahadur Joseph v. Paul Jackson and another 1981 SCMR 663 it was observed by their Lordships of the Supreme Court that "Section 302 P.P.C. will apply only if it is beyond any doubt established, that accused struck the blow with intent to .kill deceased , If in the circumstances it is more proper to impute to accused's knowledge rather than intention, the offence would fall under Section 304, Part II, P.P.C. than under section 302 or section 304, Part 1, P.P.C. In this case Ahmed and three others v. The State P L D 1971 SC 720 was also relied upon. Reported case of Yaqoob Shah v. The State P L D 1976 S.C. 32 relied upon by the learned counsel for the complainant was with utmost respect distinguishable and was not applicable to the facts of the present case regarding the nature of offence committed by one of the appellants. In the above-cited case the question which was under consideration before their Lordships was regarding treatment of evidence of eye-witnesses who were police officials and the deceased was brother of another police official posted in a distant place. In view of the above legal position and the circumstances of the case the motive alleged against the appellant Rasheed Sheikh was not such which could prompt him to cause death of deceased Mohammad Aslam. That there was a chance meeting between the parties and that the appellant gave only one blow on the head of the deceased and did not repeat the same. That the medical evidence did not show that the injury was sufficient to cause death in ordinary course of nature. Even the witnesses supporting the prosecution case were chance witnesses and two of them namely Aijaz Ahmed and Tahir had come after the deceased was attacked and therefore they could not say as to how the fight started. That although the place of incident was surrounded by shops and hotels but not a single person from the Bazar was cited or examined as a witness. I am, therefore, of the considered view that the offence committed by appellant Rasheed Sheikh would fall under section 304, Part II, P.P.C. and accordingly his conviction is altered from section 302, P.P.C. to section 304 and sentence is reduced from imprisonment for life to seven years' R.I. However, the sentence of fine is maintained and in default he shall suffer R.I. for one month more. The fine if, recovered shall be paid to the heirs of the deceased. I have decided the above appeal on 16-11-1987 by a short order and these are the reasons for the same M.Y.H/I-35/K Order accordingly.