WALOO ALIAS WALI MUHAMMAD Versus STATE

1. The appellant Waloo alias Wali Muhammad was charged under section 307, P.P.C., and tried before the learned Additional Sessions Judge, Kotri, who convicted him under section 326 and sentenced him to suffer R.I. for five years and to pay fine of Rs. 500 in default to under go further R.I. for six months, under section 324, P.P.C. He has been sentenced to suffer R.I. for two years and in case the fine was recovered the same was to be paid to P.W. Ayub as compensation. However, the appellant was allowed benefit of section 382-B, Cr.P.C. vide judgment dated 30th August, 1984.

2. The brief facts of the prosecution case are that on 10-10-1982 one Qabool lodged a report at P.S. Kotri inter alia alleging therein that he is a Zamindar. He has three sons, namely, Ghulam Qadir, Ayub and Dilawar. Sheedan and Mohammad Ismail are sons of his sister and are also his son-in -laws. They are his adjoining Zamindars also. There exists dispute between them over rotation of water since long. Today at about 9.00 a.m. he had come to Kotri Town in connection with some private work. At about 9.30 a.m. while he was in Kotri Town one Hussain Shoro came and informed him that quarrel had taken place with his son Ayub. In the meantime, he saw a Datsun vehicle of Yousuf Shoro coming, in which his son with Ghulam Qadir, Gul Mohammad and others were sitting. They stopped the Datsun near him. He found his son Mohammad Ayub lying injured in the Datsun. On his inquiry Gul Mohammad informed him that he and Mohammad Ramzan had seen Mohammad Ayub and Sheedan fighting with the result that Sheedan fell down, in the meanwhile Waloo son of Miandad came armed with hatchet. He gave number of blows to Mohammad Ayub who fell down. They challenged the accused to stop but accused Waloo ran away after causing injuries to Ayub. They had also given facts to Ghulam Qadir. The above F.I.R. was recorded by SHO Ghulam Hussain and the FIR has been produced as Exh 4-A. After necessary investigation appellant was challaned before the Court.

3. A formal charge was framed against the appellant to which he pleaded not guilty.

4. At the trial prosecution examined complainant Qabool ExA, Ghulam Hussain Ex. 5, PW. Gul Mohammad Ex.6, he has produced his 164, Cr.P.C. statement as EX.6-A. PW Ayub Ex.8, Nazir Ahmed Ex.10, he has produced the medical certificate as Ex.10-A, Mashir Mohammad Yousuf Ex.11 he has produced the mashirnama of injuries as. Ex.11-A, mashirnama of wardat as Ex. 11-B, mashirnama of recovery of blood-stained hatchet from appellant Waloo, Ex. 11-C, and mashirnama of arrest of appellant as Ex.11-D, S.H.O, Ghulam Hussain Ex.12.

5. After the close of the prosecution case, the statement of the appellant was recorded in which he denied the allegation. According to him-there was dispute between the parties- over rotation of water and the witnesses were, therefore, inimical to him, and as such, he has been falsely implicated. He has further stated that he was falsely implicated by witnesses as they wanted to save P.W. Ayub, from punishment in the murder case of deceased Sheedan. That on the day of incident he was in his house when one Murid son. of deceased Sheedaa informed deceased that Ayub was taking water of their turn/share. Deceased Sheedan went there with spade and he was followed by Saleh and Ismail standing. They informed him that Sheedan had been murdered by Ayub, and therefore, he should inform Mohammad Siddique Shoro about the incident and to the Police. He then went to Haji Siddik Shoro but he was not available and, therefore, he went to P.S. Kotri to lodge report. In the meanwhile complainant Maqbool came at the police station and lodged the report, he was, therefore, arrested. He was innocent. In support of his defence he has examined Allah Rakhio and Jam.

6. The learned trial Judge while taking into consideration the evidence produced by the parties, believed the prosecution story and has convicted the appellant as stated above. The present appeal is directed against the said judgment of conviction. While the Criminal Revision Application No. 31 of .1985 has been filed by complainant Mohammad Ismail against the acquittal of respondent Mohammad Yaqoob, who was acquitted in the Session Case No. 111 of 1982 (being murder case).

7. Dr. Nazir Ahmed has deposed that on 10-10-1982, he received injured Ayub from P.S. Kotri for examination, treatment, and certificate. On examination he found the following injuries on his person:--

(1) Incised wound left side of the neck 10 cm x 5 em x muscle deep.

(2) Incised wound at left ear (left ear divided into halves) 5 cm x 2-1/2 cm

(3) Swelling right upper arm 5 cm x 2 cm.

(4) Incised wound frontal region 2 cm x 2 cm x 1 cm.

(5) Incised wound left parietal region x 2 cm x 5 cm x 2 cm x 2 cm.

(6) Incised wound adjacent to injury No. S left parietal region 5 cm x 2 cm x scalp deep.

(7) Incised wound right scapular region 4 cm x 2 cm x skin deep.

(8) Incised wound occipital region 5 cm x 3 cm x scalp deep.

8. According to him the injury No. 2 was grievous in nature and had caused permanent disfigurement of left ear. Rest of the injuries were simple in nature. All the injures appeared to have been caused by sharp cutting weapon such as hatchet except injury No. 3, which appeared to have been caused by some blunt substance such as lathi. He has produced the medical certificate as Ex.10-A.

9. The ocular evidence was furnished by P.Ws. Gul Mohammad, Mohammad Ramzan and injured Ayub which was further corroborated by~ evidence of P.W. Ghulam Qadir and complainant Qabool and mashir Mohammad Yousuf. Complainant Qabool had lodged the F.I.R. promptly within 1-1/2 hours. The name of the accused was specifically mentioned in the F.I.R. He has fully supported the contents of this F.I.R.

10. P.W. Gul Mohammad has deposed that he knows complainant Qabool and P.Ws. Ghulam Qadir and Ramzan. He also knew P.W. Ayub so also against Wali Mohammad. About 15-16 months back on 8-30 or 9-00 a.m. he was going to his land when he heard commotion from eastern side. He then saw that P.W. Ayub and deceased Sheedan had caught spade and were fighting with each other. The present accused Wali Mohammad came there armed with the hatchet. He then gave sharp side hatchet blow to deceased Sheedan on his shoulder. Thereafter, he gave another hatchet blow to P.W. Ayub. P.W. Ramzan also witnessed the incident. He (PW) then went to the house of Ghulam Qadir and informed him about the incident. Ghulam Qadir then brought Ayub through Datsun Pick up. He also accompanied the injured Ayub and Ghulam Qadir. They came to Kotri town where they informed complainant Qabool about the incident. Thereafter, complainant lodged F.I.R. with police. His 164, Cr.P.C. statement was recorded in presence of the accused and the same has been produced as Ex.6-A. In cross-examination he has deposed that he is employee in Telegraph Workship Kotri. Complainant is not related to him but he is his co-villager and caste -fellows. Shafi and Yousuf are his brothers-in-law. P.W. Ramzan is his cousin. He owns land which is situated about 1 furlong from the wardat. He irrigates his land through water course from where the complainant party irrigate their land. Deceased Sheedan and P.W. Ayub also irrigate their lands from same water course. There was no official share list about rotation of water. He did not know whose turn of irrigation was on the day of incident. He heard exchange of abuses between deceased Sheedan and P.W. Ayub on the day of incident and they had actually grappled. He has denied to have stated before the police that he went to the wardat, he found deceased Sheedan lying on the ground with hatchet injuries at the time of his arrival. P.W: Ayub was lying on the ground. He was empty handed. No blood-stained hatchet was lying at the wardat near P.W. Ayub. He has denied a suggestion that he was not present at the wardat nor he had seen the incident.

11. P.W. Ramzan has deposed that he knows the complainant, witnesses and accused Wali Mohammad. He cultivates the lands of Mohammad Ilyas. About 15-16 months back, it was 9.00 a.m. 9.30 a.m. while he was ploughing his land. He saw Sheedan and P.W. Ayub grappling. At that time accused Wali Mohammad came there armed with hatchet. He gave hatchet blows to Sheedan and P.W, Ayub due to which they fell down on the ground. Wali Mohammad then went away, while he and P.W. Gul Mohammad kept standing over the injured. At that time Mohammad Saleh and Ismail Shoro came there. He and Gul Mohammad brought Ghulam Qadir and 2/3 other villagers brought P.W. Ayub from wardat to taluka hospital. He then returned to his village. In cross-examination he has admitted that previously he had filed a case against the present accused but he did not know if the accused was acquitted in that case. He was not examined by the Police in this case. He has admitted that at the time of this incident he and P.W. Gul Mohammad were standing near each other. They heard exchange of abuses between Sheedan and P.W. Ayub. He and P.W. Gul Mohammad went running there, both had come to the wardat from different directions. He has admitted to have stated before the Police that he and Gul Mohammad went running to the wardat and saw that deceased Sheedan and P.W. Ayub were fighting with each other. He had not stated before the Police that P.W. Ayub and deceased Sheedan caused injuries to each other and, therefore, deceased Sheedan fell down. He has further stated that deceased Sheedan and Ayub had grappled with each other. He had stated so before police. He was attracted by the commotion while he was standing at his field. He irrigates his land through a different watercourse than the one from which P.W. Ayub and deceased Sheedan used to irrigate their land. He did not know as to whose turn of water was on the day of incident. He has denied a suggestion that he was not present at the wardat and he was giving false evidence due to enmity. He has admitted that P.W. Gul Mohammad is his cousin. Complainant is his cousin, Yousuf and Shafi Mohammad are brothers inter se, and are brothers-in-law of Gul Mohammad.

12. Mashir Mohammad Yousuf has deposed that about 18/19 months' back police made him mashir of injuries on the person of injured Mohammad Ayub. The injured had about 5/6 injures. Co mashir was Jam. Police prepared such mashirnama and obtained his signature. He has produced the same as Ex. 11-A. He also acted as mashir of wardat, which was situated near village of Ahdi Shoro. There was blood at the wardat. The dead body was lying by the side of wardat. Police prepared such mashirnama and obtained their signatures, and the same has been produced by him as Ex. 11-B. Accused Wali Mohammad then produced a blood-stained hatchet before the Police taking out the same from the land. Police secured and sealed the same in their presence and obtained his signatures. The mashirnama has been produced by him as Ex.11-C. Police had arrested accused in his presence and prepared such mashirnama which he has produced as Ex.11-D. In cross-examination he has deposed that Police took him on the way while he was plying the Datsun. He has admitted that at the time of recovery of hatchet the present accused was not under arrest. He and the accused were with police when accused produced the hatchet from Makai crop belonging to the accused. Accused has two brothers and they live together. He has admitted that accused and his brothers were jointly cultivating the lands. He has also admitted that the land surrounding the place of recovery was lying open. He has also admitted that in the surrounding land of the place of recovery of hatchet, there were certain lands under cultivation. He hag also admitted that -other persons/harts of the adjoining lands were available on the day of recovery of hatchet. He was taken by Police from the distance of 300-400 feet from the place of recover of hatchet, mashir Jam reside in the village near the place of recovery He has denied a suggestion that the police did not recover hatchet in his presence and that he was giving false evidence. He has admitted that complainant Qabool and injured Ayub are related to him. He has further replied that he has similar relationship with the accused party.

13. P.W. Ayub has deposed that complainant Qabool is his father. Ghulam Qadir is his brother. P.Ws. Ramzan and Gul Mohammad are his villagers. About 15-16 months back it was 8/9.00 a.m. when he was watering the land. Deceased Sheedan came there and asked him as to why he was watering his land, as he claimed it to be his turn of water. On this deceased Sheedan abused and grappled with him. At that time present accused who was cousin of deceased Sheedan came there armed with hatchet, while they were in grappling position. Accused Wall Mohammad inflicted hatchet blow at him, which missed him and the same struck deceased Sheedan due to which Sheedan started bleeding and fell down. Accused Wali Mohammad then gave him hatchet blow on his neck on which he fell down. Accused gave 2/3 more blows and thereafter he went unconscious, he regained his senses after 2/3 days of the incident in the hospital at Hyderabad. He remained in the hospital as indoor patient for about 17 days. In cross -examination he has deposed that at the time of incident he was watering his land and was carrying spade.. He has denied that he was carrying hatchet. He was not examined by police. He had not stated before the police that there was fight between him and Sheedan over turn of water. He had not stated before Police that he was carrying hatchet or he caused hatchet injuries to deceased Sheedan who died at the spot. He had not stated before the police that his blood-stained hatchet remained at the wardat. He had not stated before the Police that he received injuries at the hands of deceased Sheedan. Dilawar is his brother. He did not know if Dilawar filed a case under section 107, Cr.P.C. against the accused. One day prior to the incident he had taken water for irrigation from morning to evening. On the day of incident it was his turn from morning till evening. He did not know if they used to take water according to share list. His turn of water was for three days. The turn of deceased Sheedan started after his turn of water They are three brothers. He did not know if there is written time-table for taking irrigation water. He has denied that on the day of incident it was turn of deceased Sheedan. He has denied a suggestion that deceased was flowing water in his lane and he forcibly took water to his land and the fight started. He has also denied that due to above reason he and Sheedan had fought and caused injuries to each other. He has denied a suggestion that accused Wali Mohammad did not cause them injures.

14. S.H.O. Ghulam Hussain has also supported the prosecution with regard to the investigation carried on by him including the arrest of the accused and recovery of blood-stained hatchet from him.

15. As far as the defence witnesses Allah Rakhio Ex.15 and Jam Ex.16 were concerned, according to Allah Rakhio when he went to the wardat he found P W Ayub lying injured. However, he does not say that the accused was not present at the wardat or that it was somebody else who had caused injuries to P.W Ayub. D.W. Jam had acted as Co-mashir and has denied the contents of mashirnama of arrest and recovery of hatchet. However, recovery of blood-stained hatchet has been proved through mashir Mohammad Yousuf and S.H.O.

16. I have heard Mr. Shaikh Rahman Bux, learned counsel appearing for the appellant, Mr. S. Sarfraz Ahmed learned A: A.G. appearing for the State, and Mr. Khadun Hussain learned counsel appearing for the private respondent in criminal Revision.

17. It was contended by Mr. Shaikh Rahman Bux learned counsel appearing for the appellant in criminal appeal that the ocular evidence was interested and inimical, and the learned trial Judge has erred in relying upon the same.

18. Mr. S. Sarfraz Ahmed, learned A.A.-G. appearing for the State has contended that there was ocular as well as corroborative evidence against the appellant and he was rightly convicted by the trial Court.

19. As far as Criminal Revision No. 31 of 1985 was concerned it was contended by Mr. Shaikh Rahman Bux, learned counsel appearing for the applicant/complainant that the learned Additional Sessions Judge had erred in disbelieving the ocular evidence on artificial grounds. That looking to the evidence brought on record it was a case for remand.

20. Mr. S. Sarfraz Ahmed, learned A.A.-G. appearing for the State has contended that complainant Ismail and PWs Mohammad Saleh, Wali Mohammad, Fateh Mohammad and Hussain were interested and inimical and, therefore, the learned Judge was right in ignoring their evidence. That this is revision against acquittal and this Court can interfere only when there is some legal ground.

21. Mr. Khadim Hussain, learned counsel appearing for the respondent has adopted the arguments of Mr. Sarfraz Ahmed, AA.-G.

22. I have considered the contentions of the learned counsel. As far as criminal appeal is concerned, there is ocular evidence of complainant Qabool Ahmed, Ghulam Qadir, Gul Mohammad, Ramzan and injured Ayub. It is further corroborated by mashir Yousuf and S.H.O. Ghulam Hussain. There is recovery of blood-stained hatchet from the appellant. The ocular account furnished by the eye-witnesses including the injured is consistent, straightforward, natural and reliable. There was no serious enmity between the parties which could prompt the complainant party to leave actual culprit and implicate the appellant falsely. The evidence of eye-witnesses has not been shaken in cross-examination. Merely because the witnesses are related inter se, their evidence could not be brushed aside on this score alone. It is broad daylight incident and there could be n question of mistaken identity. The ocular evidence is further corroborated b recovery of blood-stained hatchet. The defence evidence led by the appellant appears to be vague and interested. The fact that DW Jam has not supported the recovery does not help the defence inasmuch as the recovery of blood-stained hatchet is supported by co-mashir Ayub and S.H.O.

23. In view of the above discussion I am of the considered view that the prosecution had proved its case against the appellant beyond reasonable doubt and he was rightly convicted.

24. However, I have given my anxious consideration to the question o sentence. The incident took place on 10-10-1982, and the appellant, had undergone agony of protracted trial and, therefore, while maintaining the conviction of the appellant, I reduce the substantive sentence from five years to two years, while the sentence of fine is maintained, in default of payment of fine the appellant shall undergo further R.I. for one month. However, the appellant is acquitted under section 324, P.P.C The appellant is allowed benefit of section 382-B, Cr.P.C. With this modification, the appeal is disposed of.

25. As far as the connected revision application was concerned, it has been proved from medical evidence as well as ocular evidence that deceased Sheedan had died as a result of injuries. The prosecution has examined complainant Ismail Ex A, P.W. Mohammad Saleh Ex.5, Wali Mohammad Ex.6, Fateh Mohammad Ex-7, Hussain Ex-8, Tapadar Noor Mohammad Ex.9, Dr. Gul Mohammad Ex.10, he has produced the post-mortem notes as Ex. 11-A, and S.H.O. Ghulam Hussain Ex.11.

26. Complainant Ismail is brother of deceased Sheedan, while PWs Mohammad Saleh and Wali Mohammad are brothers inter se, and they are cousins of complainant. PW. Wali Mohammad has further admitted that he used to reside with deceased Sheedan in the same house. From the above admissions it is clear that the witnesses are related inter se and were related to the deceased. However, there was no corroboration of the ocular evidence. As far as motive was concerned, it was the case of the prosecution in the F.I.R. that there was a dispute between accused and the complainant party over rotation of irrigation water but it was given up in Court. However S.H.O. Ghulam Hussain has admitted in cross-examination that complainant had stated so in his F.I.R. The same was the case with PW Wali Mohammad. He did not state anything about the motive in examination-in-chief, and even denied this aspect in the cross examination. It is, therefore, clear that the motive advanced by the prosecution at the initial stage was given up in the Court and, therefore, the evidence of the witnesses had to be scrutinised carefully. Reliance is placed on P L D 1969 S C page 127.

27. Moreover, this is a revision application against the acquittal and, therefore, even if the Court is satisfied that there was reliable evidence available E against the accused/respondent, then too, the only order which could be passed by this Court was to order retrial which could be made only when there is legal ground and not otherwise.

28. In the case of Mrs. Ano Colemn v. Arif and another PLD 1984 (W.P.) Karachi page 81); it was observed by this Court that:--

29. "In revision against the acquittal if the acquittal has to be set aside the result will be a retrial. The view of the Courts consistently has been that the order of retrial on revision against the acquittal should not invariably be made unless it was made on technical ground as otherwise such order would tantamount to a direction to the lower Court to convict the accused."

30. From the above discussion, it is clear that the judgment of acquittal passed by the learned trial Judge does not suffer for any illegality or infirmity an the learned trial Judge has given cogent reasons for acquitting the respondent. Therefore, the acquittal does not call for interference and the revision is accordingly dismissed.

31. I had decided the above appeal and criminal revision by a short order on 11-5-1988 and these are the reasons for the same.

32. M.Y.H./W-45/K

33. Appeal dismissed.