NIAZ Versus STATE
MUHAMMAD HALEEM, J.‑‑ Appellants Niaz Kori, Ramzan, Rustam, Adno and Ghulam were tried for the murders of Wahid Bux, Danah and Abdur Rahim alias Niaz Muhammad, convicted and sentenced as under:‑
Rustam, Adno and Ghulam : under section 302/149, P. P. C., to death; under section 148, to 2 years' rigorous imprisonment; under section 307/ 149, P. P. C. to 5 years' rigorous imprisonment. Ramzan and Niaz: under section 302/149, P. P. C. to imprisonment for life; under section 148, P. P. C., to 2 years' rigorous imprisonment and under section 307/149, P. P. C., to 5 years' rigorous imprisonment by the learned Additional Sessions Judge, Sukkur, vide judgment dated 23rd May 1973. The appel lants have appealed against their conviction while the learned Additional Sessions Judge has referred the case of Rustam, Adno and Ghulam for the confirmation of death sentences. This judgment will dispose of both the appeal and the reference.
2. According to the prosecution case, the incident occurred at the square of main bazar of Bagirji town on 18 th November 1970, at 4.30 p.m. The complainant party consisting of Miran Bux, Danah, Wahid Bux, Niaz Muhammad, Mazhar Ali, Taj Muhammad, Elahi Bux and Ramzan, who resided in village Nobahu Jatoi, which is about 2 miles away from the town, visited the bazar for making purchases and as they reached the square Niaz Kori met and abused them saying as to why they had come to visit the town. The complainant party also abused him. About ha lf an hour later, Ghulam, Ali Sher, Ghafoor, Ramzan, Hatim, Rustam and Adno caem from the land which was to the east of the bazar. Out of them Ghulam and Rustam had single‑barrel guns, Adno a double‑barrel gun while Ali Sher had a pistol and the others had hatchets. Seeing the complainant party they threatened them that they would not allow them to escape Saying so. Ghulam, Rustam and Adno fired their guns. Danah was hit and he fell down while Wahid Bux ran towards the north and he fell down there. Ali Sher fired his pistol injuring Miran Bux, Mazhar Ali, Taj Muhammad and Niaz Muhammad. Niaz Kori gave a hatchet blow to Elahi Bux which struck him on his hands. The incident was said to have been witnessed by Muhammad Yousuf Kharosh and Jamsher Jatoi, who were sitting in the shop. The appellants party then escaped. Danah and Wahid Bux expired at the spot. The reason for the murders was given out to be a dispute a month back between Danah's brother Khushi Muhammad and Hyder Bux Jatoi, brother‑in‑law of Ramzan, over which there was annoyance between them and the appellant party had threatened them not to visit the town. Miran Bux repaired to police station Bagirji which is two furlongs away. He had injuries on his person which were noted. The F. I. R. was recorded by Mehdi Khan S. H. O., who soon after repaired to Abe vardat, where he found Danah and Wahid Bux lying dead while Niaz Muhammad injured. He secured four empty cartridges from the vardat and also blood‑stained earth and examined Niaz Muhammad and thereafter sent him to the hospital. The dead bodies of Danah and Wahid Bux were also sent for post‑mortem examination to Civil Hospital, Sukkur. The S. H. O. next examined Mazhar Ali, Taj Muhammad, Elahi Bux, Muhammad Yousuf and Jamsher. Injuries on the person of Elahi Bux, Taj Muhammad and Mazhar Ali were also noted vide mashirnama, Exh.
16. The same day he arrested Nina Kori and Hatim and secured from their person blood‑stained clothes vide mashirnama, Exh.
17. He examined Ramzan the next day and that very day Niaz Muhammad expired in the hospital. Other persons, namely Wahid, Gurmukh. Chetanmal, Abdur Rahim, Anwar Ali and Moosa were examined on 20th November 1970. Ramzan and Rustam were arrested on 24th November 1970. Adno was arrested on 25th March 1971, and Ghulam on 27th July 1971. Abdul Ghafoor was enlarged on bail and, therefore, he was not arrested. Of the persons arrested and enlarged on bail Hatim and Abdul Ghafoor were murdered subsequently.
3. The counter‑report of the incident was lodged by Niaz Kori at the same police station, the same day at 5.30 p.m. According to that version of Niaz Kori he had left his house for Bagirji town at 4‑30 p.m. and that while sitting in the shop of Yawar Pathan, where Bachal Shah and Rafiq Ghumro were also there, Sawan, Qaiab Ali, Fateh Sher, Tajoo, Elahi Bux, Miran Bux and some 10‑15 others came there. Out of them Qalab Ali and Sawan were armed with double‑barrel guns while Fateh Sher had a single‑barrel gun and the rest were armed with hatchets and lathis. Qalab Ali abused him and instigated others not to leave him, on which Taj Muhammad and Miran Bux gave him hatchet blows, which struck him on his head while Sawan fired his gun at him and the pellets struck his fingers. Bachal Shah then intervened and got him separated. On their cries, Hatim came there and he also saw the incident. Yawar Pathan and Rafiq Ghumro quickly ran out of the shop after the incident was over. He also gave the same enmity as the complainant party, namely the dispute between Khushi Muhammad and Haider Bux. The singular aspect in the fight was that the turban of Khushi Muhammad had fallen on account of a push being given to him by Niaz Kori.
4. The S. H. O. had inspected the shop of Yawar Pathan, which is also called Agha Stores. The description of the shop in the mashirnama gives positive indication that violence was committed by persons inside the shop. Not only was the furniture lying upside down but broken glass- panes were found scattered and so were drops of blood. A pair of black slippers was also found there, apparently giving due credence to the counter report lodged by Niaz Kori that he was attacked while inside the shop.
5. The autopsy on the dead bodies of Wahid Bux, Danah and Abdur Rahim alias Niaz Muhammad was performed by Dr. Khan Muhammad. On Wahid Bux he found the following injuries:‑
"(1) Lacerated wound oval in shape having charred margin " x 'x opening chest cavity on upper part of left side of front of chest 6' lateral to midline and 2' below left clavicle.
(2) Two small lacerated wounds oval in shape with charred margin ' x '' each on upper part of right side of chest below 1' right clavicle and 1' lateral to midline.
(3) Two lacerated wounds with charred margin ' x ' on front of neck to the right side of midline.
(4) Abrasion 1'' x ' '' and 1'' x '' on the right side of forehead.
(5) Abrasion '' x '' on the bridge of nose" which, in his opinion, were caused by a firearm, such as gun and that injuries 1, 2 and 3 were individually sufficient to cause death in the ordinary course of nature. It was further opined that death was caused within a few minutes. On Niaz Muhammad he noticed the following injuries:‑
"(1) Multiple lacerated wound with charring margin '' x '' oval in shape on whole of anterior wall of abdomen. Mist of injuries had opening in abdomen.
(2) Multiple lacerated wound oval in shape with charring margin '' x '' on left side thigh and leg.
(3) Lacerated wounds 4 in number oval in shape in front of right leg.
(4) Lacerated wounds multiple in number oval in shape on right hand," which, In his opinion were caused by the discharge of a firearm, like gun and that injury No. 1 was sufficient to cause death in the ordinary course of nature. In his case the likely period of survival was given as 12 hours. On Danah be noticed the following injuries:‑
"(1) Lacerated wound oval in shape with charring margin '' x '' opening the chest cavity on upper part of left anterior axillary told.
(2) Lacerated wound 5 in numbers with charring margin oval in shape '' x '' on left shoulder region.
(3) Three lacerated wounds with charring margin '' x '' x chest open ing below literal part of left clavical" which, in his opinion, were caused by a fire-arm, "such as gun and that injuries 1, 2 and 3 were individually sufficient to cause death. It was further opined that death was instantaneous.
6. On 18th November 1970, the same Doctor examined Miran Bux, Tai Muhammad, Mazhar Ali and Elahi Bux. On Miran Bux he noticed the following injuries:‑‑
"(1) Multiple lacerated wound with charring margin '' x '' on medial part of dorsom of left hand. On X‑ray there was evidence of presence of pellets, on dorsom of left band," which, in his opinion, was caused by the discharge of a firearm and were simple in nature. On Taj Muhammad he noticed the following injuries:‑
"(1) Seven gunshot pellets injuries on back of left leg.
(2) Three gunshot pellets wounds '' x '' on left foot.
(3) One gunshot pellet injury below medial mellulus of left foot. On X‑ray there was evidence of plate" which were also simple in nature, and caused by‑the discharge of a firearm. On Mazhar Ali he noticed the following injuries:‑
"(1) Four lacerated wounds oval in shape '' x '' with charring margin on left ankle joint and three on dorsum of left (slc). On X‑ray there was evidence of plates," which were also opined to be simple in nature and caused' by the discharge of a firearm like gun. On Elahi Bux he noticed the following injuries:‑
"(1) Incised wound 6' x 2' on lower part of dorsum of left hand. On X‑ray there was evidence of fracture of 4th and 5th proximal phalanges," which, in his opinion, was grievous in nature and caused by some sharp cutting weapon, such as hatchet. On 19th November 1970, he examined Bachal Shah, Niaz Kori and Hatim. On Bachal Shah he noticed the following injuries:‑
"(1) Lacerated wound 1'' x '' x skin deep on right frontal region.
(2) Contusion 2'' x 1" on lower part of left thigh," which were simple in nature and caused by some blunt weapon, like lathi. On Niaz Kori he noticed the following injuries:‑
"(1) Lacerated wound 2'' x '' x scalp deep on frontal region. On X‑ray there was no evidence of fracture.
(2) Lacerated wound '' x '' on right side of frontal region.
(3) Contusion 1' x 1' on left side of abdomen.
(4) Lacerated wound '' x '' on middle of left index finger," which were simple in nature and caused by some blunt weapon, like lathi. On Hatim he noticed the following injuries:‑
"(1) Lacerated wound 3' x '' scalp deep on top of head.
(2) Lacerated wound 1'' x '' x scalp deep on occipital region.
(3) Abrasion '' x '' on lower part of right forearm. On X‑ray there was no evidence of fracture of skull bone," which again were simple in nature and were caused by some blunt weapon, such as lathi.
7. The guns were not secured and, therefore, there was no matching of the crime empties. The earth, loin‑cloth and banyan were sent for chemical analysis and they were reported to be stained with human blood.
8. When examined Niaz Kori gave a counter version as under:‑
"I am complainant in counter case. P. Ws., and the deceased persons were the aggressors. I was given hatchet blows only accused present with me at the time of the‑alleged occurrence was Hatim who has been murdered recently. P. Ws. are related inter se and accused in counter case. P. W. Ali Murad Khoso is phupal of Muhammad Yousuf Kharosh. Sister of Hameed is married to Yousaf Kharosh. Sister of Yousaf Kharosh is married to Hameed. Siddique son of Mitho is cousin of P. W. Ali Murad. My brother accused Hameed Kharosh, Siddique son of Mitho and others. In that case accused were acquitted by the Court three months prior to this incident. I produce copy of F. I. R. as Exh. 49 and copy of charge‑sheet as Exh.
50. I am innocent."
He admitted having received injuries at the hands of the complainant party but denied the recovery of blood‑stained shirt. He pleaded enmity and relied on Exh. 49, which is an F. I. R. dated 13th February 1970, in which his brother, Ghulam had implicated Hameed Siddiq and others for causing injuries to him. Later they were challaned vide Exh.
50. Ramzan adopted the defence of Niaz Kori while denying the prosecution case. Rustam also adopted the defence of his step‑brother. Niaz Kori. Adno pleaded that Niaz Kori is his `imasat' and though he was not present yet he was implicated and that not only he but Ghulam also adopted the defence of Niaz Kori.
9. There are two versions given out of the incident, one by the com plainant party and the other by Niaz Kori. In the first version, the incident is said to have occurred in the square of the main bazar while in the second it was in the shop of Yawar Pathan, where Niaz Kori was himself injured and so also Bachal Shah. Among his assailants were Sawan, Qalab Ali, A Fatah Sher. Tajoo, Elabi Bux, Miran Bux and 10‑15 unidentified persons. There is a discrepancy therefore as to the place of incident and the assailants attacking the other. Niaz Kori has named only three persons of the complainant party, namely Tajoo, Elahi Bux and Mirsn Bux and one person from his own party, namely Hatim. The complainant party has named not only Niaz Kori but also Ghulam, Ali Sher, Ghafoor, Ramzan, Hatim, Rustam and Adno. Again, it is the prosecution case that Niaz Kori met the complainant party at the square and abused them and shortly there after all the others came in a body armed with deadly weapons and fired at them. If this was so, then it is not possible to explain the injury on Bachal Shah and the damage caused to the shop of Yawar Pathan, where blood was also found. The probability is that there was an incident in the shop which, according to the sketch, is 65 feet away from the place where Danah was found lying dead. The complainant party has avoided mentioning any injury to Niaz Kori and so also Bachal Shah. Both of them bad suffered injuries with blunt weapons. Assuming that N,az Kori was both armed with a gun and a hatchet, then it is inconceivable that be would allow himself to be beaten with a blunt weapon. His conduct would be to fire his gun or use the hatchet. There can, therefore, be no denying the truth that some incident had taken place in the shop, in which, accord ing to Niaz Kori, it were Taj Muhammad and Miran Bux who caused hatchet blows on his head while Sawan fired his gun at him causing pellet injury on his hand fingers. The injuries on him do lend support to the extent that they were caused by a blunt weapon, but there is no firearm injury. As for Bachal Shah he had intervened but he also received injuries in that process. Hatim who came later also received blunt injuries. The probability again is that both Niaz Kori and Hatim were unarmed and it was, therefore, that they suffered injuries. This materially belies the prosecution case. The above circumstances taken cumulatively go to show that when the first incident occurred there was hue and cry which, in all probability, attracted the supporters of Niaz Kori who lived 200 paces away from the place of incident and attacked the complainant party which is apparent from other features on record. The dead body of Wahid Bux was found at a distance of 63 feet from that of Danah. Considering the gunshot injuries received by him, the Doctor has opined that death must have occurred within a few minutes. Miran Bux has stated that Wahid Bux ran for 2 or 3 paces and then fell down, but then he could not have run for that distance. Niaz Muhammad was found lying on the ground at a distance of 120 feet away from the place where Danah lay. Though he lived for 12 hours yet it is doubtful whether he could have also traversed that distance. Of course, Danah died instantaneously and, therefore, he must have been shot at that place. One thing is again of significance that the gunshot injuries on the three victims had charred margins, necessarily showing that they were fired at from a close range. This does not fit in with the statement of P. W. Mazhar Ali who stated that "none of us attempted to run on seeing the culprits. Accused had taken positions and from that place they fired at us." If this is to be accepted then it is not possible to explain how the three victims lay at different places and as to how they suffered injuries from very close range. This evidence is also against the natural conduct, for they would have certainly made an effort to run away to avoid being shot at. The possibility, therefore, remains that the assailants came from different directions and fired at the victims. It is the prosecution case that Niaz Kori was armed with a gun and a hatchet, which again is absurd, for there was no point in carrying two weapons. Though it is the prosecution case that it was Niaz Kori who had caused hatchet injuries to Elahi Bux, yet it has been proved on record that Elahi Bux himself had stated that he was not armed with a hatchet. In the context of all the above inconsistencies and improbabilities it is not possible to accept the prosecution case that the appellants had formed an unlawful assembly sad in prosecution of the common object of that assembly committed rioting and murders; therefore, they could only be liable for their own individual acts provided their participation is established. Except for Niaz Kori, who had injuries, there is no corroborative evidence against the others. As for him, we are doubtful whether he had caused injuries to Elahi Bux with a hatchet. If he had himself received injuries in the first instance it is not possible to accept that he could have been armed with a hatchet. In the context of this, it is also worthwhile to mention that Ellahi Bux, whom he is said to have caused hatchet injury, was confronted with his 164 statement, in which he has not mentioned about Niaz Kori having a hatchet in his hand. The prosecution has, therefore, not established that it was he who had caused hatchet injury to Elahi Bux. As for being armed with a gun this was only asserted to by Miran Bux, which none others have said. It is thus not possible to accept the apse dixit of Miran Bux that Niaz Kori had fired his gun at deceased Niaz Muhammad. Niaz Kori, in our view, appears to be a victim of the fight that took place in the shop and that would not by itself make him liable for the offences charged. He is, therefore, entitled to the benefit of doubt.
10. Ramzan is said to be armed with a hatchet but there is no evidence that he used it. The only injury sustained with hatchet is by Elahi Bux, who had attributed it to Niaz Kori, which we have disbelieved. One other assailant, Ghafoor, who was subsequently murdered, was also armed with a hatchet. In the circumstances, it can only be a matter of speculation whether that injury could either have been caused by Ramzan or Ghafoor, who is not before us, but that again would be doubtful as one of the pro secution witnesses, namely Taj Muhammad, has omitted to mention in his earlier statement that they were armed with hatchets. In this view of the matter the prosecution has failed to establish his participation and, therefore, he is also entitled to the benefit.
11. There now remain Rustam, Adno and Ghulam. Except for Jamsher, they are closely related. Jamsher is also their caste follow. His brother Pathan is accused of the murder of Ghafoor, who was one of the assailants in the case. In the context of this fact, he cannot be a dis interested witness. The enmity is also admitted from both sides. It is also a matter of record that there were counter cases between the parties. Muhammad Yousuf Kharosh, who was cited in the F. I. R., has not been examined. In the context of this background when there have been no recoveries to provide evidence of matching with the crime empties, the participation of the remaining appellants should be above suspicion as there possibility of false implication as well. It is also a matter of suspicion that on the one band, the complainant party claimed to have come in the bullock cart for making purchases, yet they had no money with them. It is again surprising that Taj Muhammad has omitted to state in his police statement that they had come in four bullock carts, which omission has been duly proved which again casts a doubt on this feature of the case. Therefore, their coming to the town in a body could not be but for some other purpose, possibly to assert their right to visit the bazar, which the other side had prevented them from doing so. It is also apparent from the record that they were armed with sticks and that explains the presence of injuries on Bachal Shah. Niaz Kori and Hatim. It cannot also be doubted that it must be they who must have attacked first, for otherwise it was not possible for them to approach the appellant party if they were armed with guns. Bachal Shah and Yawar Pathan, whose statement was not even recorded by the investigating officer, were the most important witnesses, but they have not been examined in the case. At least, if they had been examined they would have provided corroboration not only to the pro secution case but also to the participation of the individuals. We have also examined the dying declaration, Exh. 33, of Niaz Muhammad. but that is also on the same footing as the other evidence. Even assuming that it was so made, it does not improve the prosecution case.
12. Coming now to the individual parts assigned to these appellants, the version is not free from doubt. The impression that one gets from the F. I. R. (Exh. 27) is that all the three, namely Ghulam, Rustam and Adno, fired guns at the complainant party hitting Danah and Wahid Bux. Again, it was Ali Sher, who is not before us, but who is said to have fired his pistol and had caused injuries to Miran Bux, Mazhar Ali and Taj Muhammad. As for Niaz Muhammad, it is only mentioned that he was bit twice. However, in their evidence, each one of them has been assigned the part of shooting at a particular individual. Taj Muhammad stated that Adno fired his gun at Danah and Rustam at Wahid Bux while Ghulam was assigned the part of firing two shots at Niaz Muhammad. This is clearly an improvement. He was confronted with his 162 statement, in which be omitted to mention about Adno, Rustam and Ghulam firing at Danah, Wahid Bux and Niaz Muhammad. This omission has been duly proved. He also omitted to mention that Ghulam fired at Mazhar Ali. Similarly Mazhar Ali has also omitted to say so in his 162 statement. Elahi Bux also did not say so. Jamsher has also towed the same line of not mentioning this fact. In the face of such an important omission in their earlier state ment it is not possible to accept the individual part assigned to the parti cipants when there is possibility of false implication and exaggeration in the role of the assailants. As for the injuries suffered by the prosecution witnesses it was Ali Sher who was assigned that part in the F. I. R., but since he has absconded his case is not before us.
13. There has been no proper appraisal of the evidence by the trial Court in a case where two versions are available and there are features which cast serious doubt on the authenticity of the prosecution version. The incident in the shop of Yawar Pathan has been minimised and no proper attention has been given to the injuries sustained by Bachal Shah. Niaz Kori and Hatim in the context of the prosecution case which we have dealt with at great length.
14. In the result, for the foregoing reasons the prosecution has failed to establish its case against the appellants beyond reasonable doubt. We would accordingly set aside their conviction and acquit them. The appeal is allowed and the reference is rejected. The appellants shall be released forthwith unless required in some other case.
Appeal allowed.