LAL BUX ALIAS LALOO Versus STATE
1. Appellants Lal Bux alias Laloo, Ghulam Shabbir and Ramzan were charged and tried under section 302 read with section 34 and section 114, P.P.C. before the learned IInd Additional Sessions Judge, Hyderabad, who has convicted and sentenced them to suffer imprisonment for life, and to pay fine of Rs.5,000 each or in default to undergo further R.I. for two years vide judgment dated 31st August, 1989.
2. The brief facts giving rise to the present Appeal are that on 27‑7‑1986, one Allah‑Warrayo lodged F.I.R. at police station Hatri, District Hyderabad, inter alia alleging therein that:‑‑
3. "Gul Muhammad s/o Ali Muhammad Solangi is my real cousin who is married. Accused Laloo s/o Ramzan , Ghulam Shabbir s/o Jumoon, sand Ramzan s/o Ali Khan Solangi also reside in the same village who are also our : elatives. Laloo Solangi had suspected deceased Gul Muhammad to be on illicit terms with his wife, and such complaint was made by Laloo Solangi to the relatives of Gul Muhammad and us. We and Gul Muhammad assured him that there was no such matter and allegation was false. But Laloo did not believe it. About 3/4 days back, Laloo told Gul Muhammad that he was on illicit terms with his wife, hence he (Laloo) would not spare him. Today, in the morning myself, Dilawar, Minhoon, Obbayo and Mir Muhammad brother of Gul Muhammad were cutting grass from the sugarcane field of Munir Ahmed Shahwani when at about 8‑00 a.m. we heard cries towards garden of Shahwani. Upon this, we all the above persons rushed there. We all were empty handed. We saw Laloo s/o Ramzan and Ghulam Shabbir s/o Jumo Solangi who had hatchets and were inflicting sharp side hatchet blows to Gul Muhammad while Ramzan s/o Ali Khan Solangi was present there. Gul Muhammad raising cries, fell down on ground. We gave `hakals' to Laloo and others, `do not kill the man'. Having seen us approaching, all the three accused persons went away towards south alongwith their hatchets. We went there and saw Gul Muhammad having received sharp side hatchet injuries on left ear extending upto occipital, on back of left hand, and at left armpit. He was unconscious. Thereafter, we carried him to Civil Hospital, Hyderabad, for treatment but he died while reaching at Hospital. Thereafter keeping the dead body at Mortuary of Civil Hospital, and leaving Mir Muhammad, Minhoon and Dilawar at dead body, now I have come to lodge complaint that accused Laloo and Ghulam Shabbir, at the instigation of Ram7an, have committed murder of Gul Muhammad with sharp‑edged hatchets, over the matter of suspicion of illicit terms. Investigation be made."
4. The above F.I.R. was recorded by A.S.I. Ghulam Rasool. Since S.H.O. was already out with some Investigation, the A.S.I. proceeded to Civil Hospital Hyderabad, where, he prepared mashirnama of injuries on the person of deceased. He also prepared inquest report of dead body in presence of mashirs Nazar Muhammad and Ghulam Hussain. The mashirnama and inquest report have been produced as Ex. 18‑B and Ex. 18‑C respectively. He then issued letter to Medical Officer for holding post‑mortem over the dead body, and left P.C. Anwar. He then went to the village of Laloo Machi in search of the accused, but they were not available and, as such, he proceeded to the place of wardat which was situated in the Gardan of Munir Ahmed Shahwani near village of Allah Rakhio Solangi. The place of wardat was shown to him by complainant, and he prepared such mashirnama in presence of same mashirs. There was blood at the wardat which was secured by him and sealed it. The mashirnama has been produced as Ex. 18‑A. He then examined P.Ws. Meenhon, Dilawar, Mir Muhammad Obbayo. He them returned back to P.S. where P.C. Anwar produced blood stained clothes of the deceased which he secured under mashirnama. On 31‑7‑1986, he arrested accused Laloo alias Lal Bux and Ghulam Shabbir from bus stand Detha in presence of mashir Oadir Bux and Abdullah. The mashirnama has been produced as Ex. 16‑A. On the same day, both the accused voluntarily led the police and the mashirs to the land of Vikio Machi and produced two hatchets lying under the bushes near watercourse. He prepared such mashirnama which has been produced as Ex. 16‑B. He sealed both the hatchets separately. He also prepared sketch of both the hatchets on the back side of mashirnama. On 3‑8‑1986, he examined Mst. Shahzadi wife of accused Laloo. On 5‑8‑1986 he got 164, Cr.P.C. statements of P.Ws. Dilawar Minhon, Mir Muhammad, and Obbayo recorded before Mukhtiarkar and FCM Hyderabad. On 2‑8‑1986, he arrested accused Ramzan from the garage of Muhammad Bux situated in Hyderabad in presence of mashirs Nazar Muhammad and Ghulam Hussain, the mashirnama has been produced as Ex.18‑D. After completing the investigation he handed over the papers to S.H.O Muhammad Nawaz who challaned the accused. The A.S.I. had also sent blood‑stained articles to the chemical examiner and the chemical report has been produced as Ex.22‑A.
5. A formal charge was framed against the appellants, to which they pleaded not guilty.
6. At the trial prosecution examined Dr. Anwar Hussain P.W.1, he had carried on post‑mortem on the dead body of Gul Muhammad son of Ali Muhammad and found three incised injuries on his person. He has produced the post‑mortem notes as Ex.9‑A, Tapadar Abdul Majid P.W 2, he has produced the sketch of place of incident as Ex.10‑A, complainant Allah Warrayo P.W.3, he has produced the F.I.R. as Ex.12‑A Minhoon P.W.4 an eye?witness, he has produced his 164, Cr.P.C. statement as Ex.13‑A, Dilawar an eye‑witness P.W.5, he has produced his 164, Cr.P.C. statement as Ex.14‑A, Mir Muhammad an eye‑witness P.W.6, he has produced his 164, Cr.P.C. statement as Exh. 16‑A, mashir Abdul Razak, P.W.7, he has. produced mashirnama of arrest of accused Laloo and Ghulam Shabbir as Ex.16‑A, production of two blood‑stained hatchets by the accused as Ex. 16‑B, mashir Nazar Muhammad P.W.8, he has produced mashirnama of place of incident as Ex.18‑A, inquest report as Ex.18‑B, mashirnama of dead body as Ex.18‑C, mashirnama of arrest of accused Muhammad Ramzan as Ex.18‑D, H.C. Mohammad Bux P.W.9, P.C. Anwar had produced mashirnama alongwith clothes of deceased before him, and he has produced .mashirnama as Ex.21, A.S.I.P. Ghulam Rasool P.W.10, he had recorded the F.I.R. and had carried on investigation as mentioned in the earlier part of this judgment. He has produced the chemical report as Exh. 22‑A and sketch of wardat as Ex.22‑B.
7. After close of the prosecution case, the statements of the accused were recorded under section 342, Cr.P.C. in which they have denied the allegations. However, they had examined themselves on oath as envisaged by section 340(2), Cr.P.C.
8. After taking into consideration, the evidence produced by the prosecution, and the statements of the accused, the learned trial Judge has been pleased to convict the appellants as described above and the present appeal is directed against the above judgment of conviction.
9. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellants, Mr. Salman Ansari, learned counsel appearing for the State, and have gone through the record and proceedings very carefully.
10. It was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants that the case is false and the appellants have been victims of suspension. The ocular testimony is interested, inimical, contradictory and unreliable, and the learned trial Judge has erred in relying upon the same. It was further contended that in the F.I.R. and 161, Cr.P.C. statements there was no allegation of instigation against appellant Muhammad Ramzan but the complainant and witnesses have dishonestly implicated him in Court stating that he was armed with hatchet and had instigated the co‑accused. In view of this improvement the ocular evidence does not inspire confidence and could not be relied. upon. As far as recovery of hatchets from appellants Laloo and Ghulam Shabbir was concerned, it was contended that mashir Abdul Razzak was related to the complainant party and since the hatchets were recovered at the joint pointation of two appellants, the same could not be relied upon. It was further contended that there was long delay in sending the blood‑stained hatchets to the chemical examiner inasmuch as the mashirnama Exh.16‑B shows that the hatchets were recovered on 31‑7‑1986. Same were sent to expert on 21‑11‑1986.
11. Mr. Salman Ansari, learned counsel appearing for the State has contended that since no overt act was assigned to appellant Muhammad Ramzan, in the F.I.R. and 161, Cr.P.C. statements, therefore, he will not support the conviction of Muhammad Ramzan. However he was of the view that there was sufficient ocular evidence against appellant Laloo alias Lail Bux and Ghulam Shabbir and, therefore, they were rightly convicted.
12. I have considered the contentions of the learned counsel. Dr. Anwar Hussain P.W.1 was Medical Officer, Medico‑Legal Section L.M.C.H, Hyderabad on 27‑7‑1986, and had carried on post‑mortem examination of deceased Gul Muhammad; he found 3 incised injuries on the person of deceased. According to him, the time between death and post‑mortem was one to three hours, and between injuries and death 2‑1/2 to 3‑1/2 hours. According to him, the cause of death was excessive external haemorrhage plus irrevisible shock which resulted due to incised injuries. Injury Nn.3 was sufficient to cause death in ordinary course of nature. All injuries were ante‑modem. He issued such post‑mortem report and the same has been produced as Exh.9‑A.
13. Tapedar Abdul Majid, P.W.2, has deposed that on 5‑9‑1987, he ‑visited and prepared sketch of wardat in this case in presence of complainant Allah?Warrayo, P.Ws. Dilawar and Obbayo. According to him:‑
14. Point `A' denotes the place of incident situated in Survey No.92 in Deh Moharo, Taluka Hyderabad, which is Mango garden of Munir Ahmed Shahwani.
15. Point `B' denotes the place where P.W. Dilawar was cutting grass at the time of incident.
16. (Point B' is 342 feet from point `A' towards North East)
17. Point `C' denotes the place where P.W. Obbayo was cutting grass at the time of incident. It is 435 feet away from point `A' towards North.
18. Point `D' denotes place where P.W. Mir Muhammad was cutting grass at the time of incident. It is 395 feet away from point `A' towards North West.
19. Point `E' denotes place where there is empty shop.
20. Point `F denotes place where there is a wall prepared of mud.
21. He has produced the sketch in triplicate as Exh.10‑A.,
22. Complainant Allah Warrayo has reiterated the facts, mentioned by him in his F.I.R. He has further stated that accused Ramzan was present with them having hatchet in his hand and was instigating the co‑accused not to spare Gul Muhammad and kill him. They gave `hakals' and asked the accused persons not kill Gul Muhammad, but they issued threats and told them not to come near, otherwise they would also be killed. He has produced the F.I.R. as Exh.12.
23. In cross‑examination, he has deposed that P.W. Dilawar is his maternal‑uncle, P.W. Minhon is his brother‑in‑law, P.W. Obbayo is his brother and P.W. Mir Muhammad is his cousin, his sister is wife of P.W. Mir Muhammad, P.W. Nazar Muhammad is his distant cousin. Wife of Nazar Muhammad is sister of Abdul Razzak, while sister of Nazar Muhammad is wife of Abdul Razzak. Abdul Razzak is mashir in this case. The sister of deceased is his wife. He was confronted with the contents of his F.I.R. and according to him he had stated in his F.I.R. that accused Ramzan was armed with hatchet and was instigating other accused to kill the accused. He had stated in his F.I.R. that the accused persons had threatened them not to come near them otherwise they will be killed. The police had seen the wardat only.They had cut about 2/3 bundles when they heared cries; they had not shown the grass and Rambas to police. He could not say it Rambas and the grass ? were lying . He did not know if any body had removed the grass and Rambas but he had not removed the same. About 10/12 labourers were an the garden of Munir Ahmed Shahwani including Machis and Hulyas. He has admitted that Ali Muhammad and Qadir Bux are real maternal‑uncles of the deceased. He has also admitted that their lands and the lands of the accused are situated on the same watercourse. He has denied that there was dispute between the parties over the turn of water. He could not say if Haji Ahmed, and Haji Qasim are sons of cousin of deceased. He did not know if accuse. Shabbir was arrested in theft case which was committed from the houses of Haji Qasim and Haji Ahmed. Two sons of Qadir Bux are serving in Police department. Wife of subedar Dost Muhammad is cousin of deceased. Nobin s/o Qadir had come at the wardat when police had visited the same.
24. Meenhon P.W.4 and Dilawar P.W. 5, and Mir Muhammad P.W.6 have supported the complainant. They have further stated that accused Ramzan was also present there and was instigating the two co‑accused. However, they have not stated that Ramzan was armed with any weapon. A.S.I. Ghulam Rasool P.W.10 who had investigated this case has admitted in cross‑examination that:‑
25. "Complainant has not mentioned in his F.I.R. that accused Ramzan was armed with hatchet. That the complainant has not mentioned in his F.I.R. that accused Ramzan instigated others (co‑accused). It is only mentioned that he was available there."
26. Complainant Allah Warrayo P.W.3 has admitted that deceased Gul Muhammad was his cousin. P.W. Dilawar is his maternal‑uncle, P.W. Meenhon is his brother‑in‑law, P.W. Obbayo is his brother, while P.W. Mir Muhammad is his cousin. His sister is wife of P.W. Mir Muhammad. P.W. Nazar Muhammad is his distant cousin; wife of Nazar Muhammad is sister of Abdul Razzak; sister of Nazar Muhammad is wife of Abdul Razzak. Abdul Razzak is mashir in this case. The sister of deceased is his (complainant's) wife.
27. From the above facts, and admissions made by complainant, it is clear that on one hand, the eye‑witnesses and mashirs were related inter se and were near relations of the deceased, and on the other hand there was enmity between the parties as the accused party suspected deceased Gul Muhammad to be on illicit terms with the wife of accused Laloo. It is also an admitted position that complainant had not stated in his F.I.R. that accused/appellant Ramzan was armed with hatchet and he had instigated the two co‑accused. He was confronted with the contents of F.I.R. and the contradiction has been proved through A.S.I. Ghulam Rasool. The other witnesses have also tried to improve their' evidence by stating that accused Ramzan had instigated the co?-accused. In addition thereto, it is also admitted by complainant and P.Ws. that 10/12 labourers were in the garden of Munir Ahmed Shahwani at the time of incident but none of them has been cited or examined as a witness and, therefore, the ocular evidence requires strong corroboration.
28. In this connection reliance is placed on Muhammad Sharif v. Tahirur-?Rehman and 3 others 1972 SCMR 144 wherein it was observed that:‑
29. "According to the prosecution large number of persons had collected at the place of occurrence but none of them has been produced in Court. The failure to produce a single disinterested witness in support of its case, held, no implicit reliance could be placed on evidence of interested eye‑witnesses in absence of corroboration and as such the prosecution has failed to prove its case beyond reasonable doubt. Therefore, their Lordships declined to interfere with the acquittal judgment."
30. In the case of Ghulam Sikandar v. Mamaraz Khan and others PLD 1985 SC 11; it was observed by their Lordships of the Supreme Court that:‑
31. "Where a witness is 'interested and also inimical and is thus likely to falsely implicate one or other accused, it was essential to seek independent corroboration regarding each one of other accused."
32. In view of the above factual as well as legal position, the ocular evidence in the present case required independent corroboration.
33. Adverting to the recovery of blood‑stained hatchets from appellants Laloo alias Lai Bux and Ghulam Shabbir, it has been admitted by mashir Abdul Razzak P.W.7, that the place of recovery was accessable to every one. Both the hatchets were buried together. He has further admitted that the deceased and complainant were related to him. That there were so many hotels and shops near Detha Railway Station, and many other persons were present at the hotels and shops near the place of Bus stop. The place of recovery of hatchets was about two miles away from the Detha Station. Mashirnama of recovery of hatchets Exh.16‑B at page 72 of the paper book shows that:‑
34. "Both the accused led us ahead and produced hatchets which were concealed in the grass on the bank of watercourse near the garden of Vikio Solangi.
35. A.S.I. Ghulam Rasool P.W. 10, has stated in his examination‑in‑chief at page 87 of the paper book that:‑
36. "On the same date both the accused voluntarily led me and mashirs to the land of Vikio Machi and produced two hatchets lying behind under the bushes near the watercourse."
37. In cross‑examination he has admitted that:‑
38. "Abdul Razzak and Qadir P.Ws. mashirs of arrest' of the accused are residents of village Allah Rakhio Machi which would be 4/5 miles away from Detha bus stop. It is correct that village of Detha is a big village. It is correct that there are hotels and shops near the bus stop. The recovery placc was at some distance from village of Allah Rakhio Machi and 6/7 miles away from village Detha. He has further deposed that both the accused jointly led them to the place of recovery. The recovery place was an open place. It is correct that Exh.16‑B mashirnama of recovery does not show time of its preparation. The property was sent to the Chemical Examiner by W.H.C. or by S.H:O. I do not know when the same was sent to the Chemical Examiner. I do not know if the property which was sealed by me was tampered with by W.H.C."
39. It is the prosecution case that appellants Laloo alias Lai Bux and Ghulam Shabbir had produced the hatchets on 31‑7‑1986 and the same were sent to the chemical examiner on 21‑11‑1986, as such, there was delay of more than 3‑1/2 months, for which there is no explanation. Moreover, the recovery was joint recovery and, therefore, no reliance could be placed on the same. In this connection reliance is placed on the case of State v. Ehsan Shah and 4 others 1989 PCr.LJ 2234; wherein it was observed by his Lordship Ajmal Mian, J.‑‑‑(as he then was) that:‑
40. "It may be observed that it is by now well settled principle of law that joint recovery at the pointation of two co‑accused cannot be used against them."
41. The mashirs of recovery, selected by S.H.O., were close relations of the deceased and complainant party, and the S.H.O. has failed to pick up independent persons to be made as mashirs, as it is an admitted position that number of persons were available at the place from where mashirs Abdul Razzak and Qadir Bux were picked up. They also came from far‑off place. In view of the above factual as well as legal position no reliance could be placed on the alleged recovery of hatchets from appellants Laloo and Ghulam Shabbir. It may be stated here that there was no recovery from appellant Ramzan and even no overt act was assigned to him in the F.I.R.
42. In view of the above factual as well as legal position I. am of the considered view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt and, therefore; while extending the benefit of doubt to them, the appeal is allowed, their‑ convictions and sentences are set aside, and they are acquitted of the charge. They shall be released forthwith if not required in any other case.
43. N.H.Q./L‑65/K ??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.