MUSHTAQUE AHMED Versus STATE

1. Appellants Mushtaq Ahmed, Bashir Ahmed, Muhammad Jamil and their co‑accused were charged under sections 302/248/249/325 and 324, P.P.C. and tried before the learned Additional Sessions Judge, Tharparkar, at Mirpur Khas, who has convicted the appellants under section 323, read with section 149, P.P.C. and sentenced them to suffer R.I. for six months and to pay compensation of Rs.1,000 (Rupees one thousand) each under section 544‑A, Cr.P.C. to the heirs of the deceased Umra and Shera, and under section 148, P.P.C. to suffer R.I. for six months while co‑accused Siddiq, Iqbal, Yaqoob, Ali Muhammad and Hakim Ali were acquitted vide judgment, dated 30th June, 1983.

2. The brief facts giving rise to the present appeal are that one Dr. Aziz, Hassan owned 65 acres of agricultural land in Deh 349‑A, situated in Taluka Jamesabad (now Taluka Kot Ghulam Muhammad). The said land was on lease with Umra alias Umerdin father of the complainant Shafi Muhammad before 1969. On 28‑5‑1.969, the widow of Dr. Aziz Hasan granted fresh lease to Umra for a period of five years commencing from 1‑6‑1969. Umra was already in possession of the said land. It is alleged that on 14‑10‑1973 accused Mushtaq, Bashir Ahmed, Jamil, Siddiq and Yaqoob came to the leased land of Umra alongwith 5/7 unidentified persons and attempted to dispossess him forcibly, but their attempt was foiled by Umra with the help of his relatives Sher Muhammad and Abdur Rehman as well as the neighbouring haris. The accused then went away threatening the complainant party. Thereafter Umra filed a suit before the Civil Judge, Jamesabad, and sought injunction for restraining the accused party from dispossessing him from the suit land. Subsequently Muhammad Shafi, and Umra came to know that the widow of Dr. Aziz Hasan had sold the suit land to accused Mushtaq, Bashir and Jamil and as such they filed pre‑emption suit on 22‑10‑1973 before the Civil Judge Jamesabad. According to complainant party, the interim injunction obtained in the earlier suit was in operation, and the pre‑emption suit was also pending, when on 28‑12‑1973 at about 8‑00 a.m. the present appellants alongwith their five co‑accused armed with different kinds of weapons formed an unlawful assembly and went to the disputed land in order to dispossess the complainant party from the disputed land. As soon as the accused reached there., they diverted the water which was flowing to the wheat field of Umra, to the ploughed land of Umra. Thereafter, one of the accused asked Umra to leave the land but he refused to do so hence accused Ali Muhammad, and Hakim Ali instigated the remaining accused not to spare Umra, complainant Muhammad Shari, and his uncle Bashir Muhammad, and as such they were attacked and caused injuries. They raised cries on which Rehmat Ali, Muhammad Rafiq, Bahar Khan, and Mst. Fatima mother of complainant Muhammad Shah came to the place of incident and they witnessed the incident. After the departure of the accused, the injured were taken to the police station Jamesabad where Muhammad Shafi lodged his F.I.R. It was alleged by the complainant that the F.I.R. was recorded in the station diary and his signature were obtained on it but the same was not read over to them. The police referred Umra and Sher Muhammad to the hospital for treatment but no letter for examination and treatment of complainant was given although he was also one of the injured. Suspecting bona fides of the local police, the complainant made an application to the S.P. Tharparkar, at Mirpurkhas, mentioning his dissatisfaction therein. The S.P. forwarded the application to the C.I.A. police who referred the complainant to the Civil Hospital for treatment. It was further alleged by the complainant that the hospital authorities discharged his father Umra from the hospital prematurely. His father was then taken to the Jinnah Hospital where he died and his body was buried at Karachi. However, later on the complaint of his mother, the dead body of Umra was exhumed and post mortem examination on the dead body of the deceased was carried on by a Board of Medical Officers.

3. In the meanwhile, after receipt of information about death of Umra, the report of the complainant recorded earlier by the police in the station diary was incorporated in 154, Cr.P.C. book but according to the complainant, his report was not properly taken down and the accused had also managed with the Medical Officer. The police did not arrest the accused and, therefore, the complainant and his mother moved several applications to the higher authorities but to no avail, and therefore, the complainant filed a direct complaint before the Civil Judge and F.C.M., Samaro at Jamesabad on 10‑5‑1974. The learned Civil Judge and F.C.M. issued process against all the accused for offences under section 302,148/149, P.P.C. The case was then sent up to the Court of Sessions Judge, at Mirpurkhas, from where it was transferred to the Court of learned Additional Sessions Judge, Tharparkar, at Mirpurkhas. However, one of the accused namely Younas could not be arrested and as such he was declared as absconders.

4. A formal charge was framed against the accused, to which they pleaded not guilty.

5. At the trial, prosecution examined complainant Muhammad Shari, P.W.1, who has produced certified copy of interim injunction as Exh.4‑A, certified copies of the plaints of the suits filed by complainant and his father as Exh.4‑B to Exh.4‑C, complaint as Exh.4‑D, his statement recorded under section 200, Cr.P.C. as Exh.4‑E. Rehmat Ali an eye‑witness P.W.2, who has produced his statement recorded under section 202, Cr.P.C. as Exh.6‑A, Rauf Ali Shah, the then Incharge P.S. Jamesabad, P.W.3, who has produced the report/complaint of complainant Muhammad Shafi incorporated in station diary as Exh.7‑A. Abdul Rahman, an eye‑witness P.W.4. who has produced his statement recorded under section 202, Cr.P.C. as Exh.8‑A, Mst. Fatima P.W.5, Dr. Muhammad Farooq, the then Medical Officer, District Council Dispensary, Jamesabad, P.W.6, he has produced initial medical certificate regarding injuries on Umra as Exh.10‑A, four X‑ray plates received from the Radiologist, Civil Hospital, Mirpurkhas as Exh.10/B‑1 to Exh.10/B‑4, final medical certificate as Exh.10‑C, medical certificate regarding injured Sher Muhammad as Exh.10‑D, X‑Ray plate alongwith report of Radiologist as Exh.10/E‑1 and final certificate as Exh.10/F, Dr. Abdul Hadi Khan, Police Surgeon, Karachi‑Court witness No.1, who has produced the post‑mortem report as Exh.14‑A, report of department of Pathology as Exh.14‑B, report of department of Biochemistry as Exh.14‑C, Dr. Alam Kumar, the then Medical Officer, Civil Hospital, Mirpurkhas, Court witness No.2, he has produced the history sheet regarding injured Shera in four leaves as Exh.16/A‑1 to Exh.16/A‑4, S.H.O. Ghulam Abbas, P.W.7, who has produced Mashirnama of place of Wardat as Exh.18/A Mashirnama of injuries of Umra and Shera as Exh.18/B and Exh.18/C.

6. After close of the prosecution case, the statements of accused were recorded in which they have denied the allegations. Accused Mushtaq has further stated that he and the co‑accused are related inter se. The land in question was purchased by him, Jamil and Bashir and they were given possession of land at the time of purchase of the land. Previously this land was on lease with Umra which was cancelled. Umra and P.W. Rehmat Ali wanted to purchase this land for themselves and, therefore, they were annoyed and had a grudge against him. He has produced photostat copy of registered sale‑deed as Exh.20‑A, share list regarding distribution of water as Exh.20‑B, the land in question was cultivated by them through Haris, Hanif son of Sardar, Nazir son of Sher Muhammad, Yaqoob son of Farzand. He has produced the certified copy of Khasra as Exh.20‑C. Deceased Umra had his own Qabooli land adjacent to the disputed land. Umra and Shera had a quarrel with their haris over the turn of water in their absence, they have falsely implicated them due to the above enmity.

7. The remaining accused also denied the allegations and have adopted the further statement of co‑accused Mushtaq. However, they did not examine 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 accused, the learned trial Judge was pleased to convict the appellants, while co‑accused were acquitted vide judgment, dated 30th June, 1983, the present appeal is directed against the above judgment of conviction.

9. It will be appropriate to mention here that appellant Mushtaq Ahmed son of Nawabdin died during the pendency of the above appeal.

10. Dr. Muhammad Farooq P.W.6, has deposed that he had examined injured Umra son "of Rabbi (since deceased) and Sher Muhammad son of Rabbi on 29‑12‑1973 and had found the following injuries on their persons:‑‑

1. Umra son of Rabbi

(1) Lacerated wound 3‑1/2" x 1" x wound deep on the occipital region.

(2) Lacerated wound 2‑1/2" x 1" x wound deep on the occipital region.

(3) Swelling 2" x 2" on right shoulder with tenderness.

(4) Lacerated wound 3‑1/2" x 1" x wound deep on the mid‑head.

11. He referred the injured for X‑Ray to Civil Hospital, Mirpurkhas. All the injuries appeared to have been caused by Lathi. He has produced the initial certificate as Exh.10‑A. He received X‑Ray plates from Mirpurkhas alongwith the report which showed that there was no fracture. He has produced the X -ray plates as Exh.10/B‑1 to Exh.10/B‑4, and thereafter he was of the opinion that the injuries were simple in nature, and issued such final certificate which he has produced as Exh.10‑C.

2. Skier Muhammad (Injured)

(1) Lacerated wound 2" x 1" on the middle of head.

(2) Lacerated wound 1/2" x 1/2" on middle of head, below injury No. 1.

(3) Lacerated wound 1" x 1/2" on the left of the upper eyelid.

(4) Contusion and swelling 2" x 2" on the right elbow joint.

(5) Contusion 8" x 2" on the back of the chest on the right side.

(6) Contusion 8" x 2" on the back chest on left side.

12. The injuries appeared to have been caused by blunt substance such as Lathi: He referred the injured to Civil Hospital, Mirpurkhas for X‑Ray and has produced the initial medical certificate as Exh.10‑D. He received 2 X‑Ray plates alongwith the report of Radiologist on the cover, which he has produced as Exh.10/E‑1 and Exh.10/E‑2. The report did not show that there was any fracture and, therefore, the injuries were simple in nature. He has produced the final certificate as Exh.10‑F.

13. Dr. Abdul Hadi Khan, Court witness No. 1, has deposed that on 23‑1‑1975 he was police surgeon at Karachi. On that date, he Dr. M.SA. Farooqi, Dr. Muhammad Umer Khan, carried on post‑mortem examination of the dead body of deceased Umra son of Rabbi under the order of District Magistrate Karachi, the dead body of deceased was buried but it was exhumed at 11‑15 a.m. on 23‑7‑1974. The son and wife of deceased were present so also the Additional City Magistrate No.13, Mr. Allah Bachayo Memon, and S.H.O. Ferozabad Police Station. The body was identified by Muhammad Shall and Mst. Fatima the son and the wife of the deceased respectively. On external examination he found the following injuries on the person of deceased.

(1) Contused abrasion on the back of the upper part of the right shoulder 1‑1/2" x 1‑1/2".

(2) Partially healed wound on the back right side of head on the occipital region measuring 1‑1/2" x 1/6" x scalp deep forming a semi‑circular flap.

(3) Healed wound on top of the head running backward 3" from the right Pinna, measuring backward 3" x 1/8".

(4) Healed wound almost behind the injury No.3 extending from top to right side occipital region measuring 1/1‑2" x 1/8".

14. There was no haemotoma, and there was no contusion either in the surrounding area or on the healed edge. Echomysis was present under the wounds. The above wounds were not bone deep. Injury No.1 could be due to impact with a hard and blunt object, while injuries Nos.2 to 4 appeared to have been caused by sharp‑edged heavy weapon like a light axe.

15. In the opinion of the Medical Board, the above‑mentioned injuries on the person of the deceased were ante‑mortem in nature and that at the time of the post‑mortem examination it appeared that the death had occurred 4/6 days before. He has produced the carbon copy of the post‑mortem report as Exh.14/A, which bears his signatures. He has also produced the reports of the Pathologist and Biologsit, as Exhs.14‑B and 14‑C respectively, and final report as Exh.14‑D.

16. Complainant Muhammad Shall P.W.1 has reiterated the facts before the Court which he had mentioned in his complaint. He is fully supported by P.Ws. Rehmat Ali, Abdur Rehman and Mst. Fatima.

17. I have heard Mr. A.Q. Halepota, learned counsel appearing for the appellant, Mr. Abdul Ghafoor Mangi, learned Additional Advocate‑General, appearing for the State, Mr. Muhammad Zahid Khan, learned counsel appearing for the complainant, and have gone through the R&P of the case very carefully.

18. It was contended by Mr..A.Q. Halepota, learned counsel appearing for the appellant that the case was false and the learned trial Judge has erred in relying upon ocular evidence, which was interested and inimical. He has further contended that in the alternative, the appellants have suffered agony of protracted trial since 1974 and have remained in custody for few days after their conviction and, therefore, this Court may take lenient view against them.

19. Mr. Abdul Ghafoor Mangi, learned Additional A.‑G. appearing for the State has contended that no doubt the witnesses were inter‑related but from the record produced before the Court, it was clear that the complainant party was in possession of the disputed land and that the accused wanted to take forcible possession and had attacked the complainant party. That the prosecution has proved its case beyond reasonable doubt against the appellants and the appellants were rightly convicted. However, he was also of the view that looking to the fact that the appellants have suffered agony of protracted trial since 1974, and have remained in jail for some days after their conviction, the substantive sentence may be reduced to one already undergone but the fine may be maintained.

20. Mr. Muhammad Zahid Khan, learned counsel appearing for the complainant has adopted the contentions raised by Mr. Abdul Ghafoor Mangi.

21. I have considered the contentions. The ocular evidence of complainant Muhammad Shafi and P.Ws. Rehmat Ali, Abdul Rehman, and Mst. Fatima appears to be natural and reliable. Their evidence has not been shaken in any way in spite of lengthy cross‑examination. No doubt they were related inter se; and to the deceased, but the incident was a broad daylight incident and it cannot be believed that they could spare the real culprits and involve innocent persons. I am fully convinced, that the prosecution has proved its case against the appellants beyond reasonable doubt and they were rightly convicted.

22. However, I have given my anxious consideration to the question of sentence. Admittedly, the appellants have undergone agony of protracted trial since, 1974, and have remained in custody for some days after their conviction and, therefore, their substantive sentence is reduced to one already undergone. However, order regarding payment of compensation of Rs.1,000 each against appellants Bashir Ahmed and Muhammad Jamil is maintained, in default o payment of compensation appellants Bashir Ahmed and Muhammad Jamil shall suffer S.I. for six months each. The compensation if paid, shall be paid to the heirs of deceased Umra and Shera (since deceased).

23. With the above modification in the sentence, the appeal is dismissed.

24. I had decided the above appeal on 6‑10‑1991 by a short order and these are the reasons for the same.

25. N.H.Q./M‑1606/K Sentence reduced.