AHMED Versus STATE
G. M. SHAH, J.‑ The appellant was tried along with his son Ghulam Kadir ‑ by the Additional Sessions Judge, Dadu, who, by the judgment dated 10‑7‑1977 convicted the appellant under section 302, P.P.C. and sentenced him to death, and also to pay a fine of Rs. 1,000 or in default to undergo R. 1. for six months. Whereas, co‑accused Ghulam Kadii was convicted under sections 326 and 324, P. P. C. and sentenced to suffer R I. for five (5) years and to pay fine of Rs. 100 or in default to undergo p .I. for six months.
2. The appellant has preferred this jail appeal against the judgment of his conviction, through the Assistant Superintendent, Central Jail, Khairpur. There is also the reference for confirmation of the death sen tence under section 374, Cr. P. C. The co‑accused Ghulam Kadir has filed no appeal. Both, this appeal, as well as the reference, will be dealt with together and disposed of by this judgment.
3. The prosecution case, briefly is that the appellant Ahmed‑‑is the younger brother of. deceased Muhammad Sulleman, father of complainant Haji Muhammad Ayub. Thus, the appellant is the uncle of the complainant and resides near his (complainant's) nouse. Deceased Muhammad Sulleman had a licensed gun and the appellant is entered as a retainer, in the licence. Co‑accused Ghulam Kadir is son of appellant Ahmed. Deceased Moula Bux was brother of the complainant and P.W. Moula Bux is also their brother. P. Ws. Muhammad Siddique and Jumo ‑are brothers inter se. They are related to both the parties, the comp lainant, as well as, the appellant. The daughter of appellant Ahmad is married to P.W. Siddique, whose one daughter is married; in exchange, to co‑accused Gulam Kadir, son of the appellant and the other daughter is married to P. W. Khuda Bux. P. W. Muhammad Siddique had detained his daughter, wife of co‑accused Ghulam Kadir, in his house, due to some matrimonial disputes between them. That had enraged the appellant, who had asked Siddique‑not to come in the vicinity.
4. On 14‑9‑1974 at about 9 a. m., the appellant went to the house of the complainant and took out the gun of his father deceased Muhammad Sulleman, as well as, the cartridges and went out of the house. The complainant asked him the reason, but he .did riot reply. The complainant followed hire. At some distance from the house, the complainant saw his brother deceased Moula Bux talking with P. W. Muhammad Siddique, in front of the shop of Miro Khan, which was closed at that time. Deceased Muhammad Sulleman was also present there. The appellant reached there, followed by the complainant. The appellant abused Muhammad Siddique and asked him, why he had come there. The deceased, Muhammad Sulleman prevented him and told him not to abuse. The appellant asked Muhammad Sulleman and his son Moulabux. that since he (appellant) had asked them not to allow Muhammad Siddique to come there, why did they not listen to, him. The appellant lost his temper, loaded and, aimed the gun at Muhammad Siddique. Moulabux intervened and beseached the appellant not to kill him. The appellant turned his gun towards Moulabux and fired at him. and killed him instantaneously at the spot. Muhammad Siddique .started running towards his village. The appellant armed with the gun followed him. The deceased Muhammad Sulleman al 3p ran after the appellant and caught up with him, when he (appellant) r ached the uncultivated land of Muhammad Siddique. Muhammad Sulleman tried to snatch the gun from the appellant and while doing so, the gun broke. The barrel remained in the hand of the appellant ; whereas the butt of the gun came in the hand of deceased Muhammad Sulleman. The appellant attacked Muhammad Sulleman with the barrel of the gun and hit him, on his heal' and face, who also defended himself and caused some injuries to the appellant. In the meantime P. Ws. Khudabux and Jumo came running. They were followed by co‑accused Ghulam Kadir, who was armed with a hatchet. He challenged the witnesses Khuda Bux and Jumo and asked his father, the appellant, not to spare the enemy'; whereas, he himself inflicted hatchet blows to P.Ws. Khudabux and Jumo. During the struggle the appellant gave blows on the head and face of deceased Muhammad Sulleman by means of .the barrel of 'the gun and fractured the frontal bone, on the left side of his forehead, resulting in the death of Muhammad Sulleman.' On hearing the hue and cry, people from the village came running and ‑the appellant and his son co‑accused Ghulam Kadir escaped from the place of occurrence. The complainant reached the Police Station Mehar and lodged the F. I. R. 'at 12 noon on the same date. The injured witnesses Khuda Bux and Jumo were brought to the sane police station on a bullock cart. They were questioned by the police and were sent to the hospital for treatment and certificate. After registering the case, the police proceeded towards the ' vardat. On the way, police arrested the appellant from village Khadd. He had four lacerated wounds on the frontal region, right knee, left leg and an abrasion on the right shoulder. Therefore, he was sent to the Medical Officer K. N. Sbah for necessary treatment' and certificate. All the injuries were simple in nature and appeared to have been caused by a hard and blunt object. The police visited the vardat and secured an empty cartridge of 12 bore from near the place, where deceased Moulabux was fired upon first. The complainant produced' the barrel and the butt of the broken gun, as well as, its licence, which were secured and seized by the police. Co‑accused Ghulam .Kadir produced the blood‑stained hatchet, hidden in the 'Rillies', from his house. Blood‑stained articles were forwarded, to the chemical analyser and empty was sent to the Ballistic Expert, who opined that the crime empty was fired from the gun, which was alleged to have been fired by the appellant, causing gun shot injuries to Moulabux deceased. On completion of the investigation the case was challaned in the Court of Civil Judge and F.. C. M., Mehar, who committed it to the Court of Sessions Judge, Dadu for trial.
5. The autopsy on the dead bodies of Moulabux and Muhammad Sulleman were conducted by Dr. Ghulam Mustafa M. O. T. H. Q. Hospital, Mehar. ,He found the following surface injuries on them:
Deceased Moulabux aged 18 years,
(1) Circular lacerated wound with black margins having diameter of 2" and bone deep causing fracture of left mandible, region.
(2) 32 circular lacerated wound with black margins, scattered on left side of face and neck.
There was a fracture of mandible on the left side and there was rupture of left labial artries. Wad and pellets were traced out during dissection from injury No. 1.
The death was instantaneous and was due to injury No,
1. All the injuries 'were caused by a fire-arm and were anti‑mortem..
Deceased Muhammad Sulleman aged 45 years
(1) Contused wound 2 " x " x bone deep causing fracture of frontal bone on the left side of forehead.
(2) Contused wound 1 " x " x bone deep with fracture‑ of‑the frontal bone corresponding the injury.
(3) Contused wound 1 " x 1" x skin deep on left‑car..
(4) Contused wound 1" x " x skin deep on right face.
There was fracture of frontal bone at two places, corresponding the injuries Nos. 1 and 2‑with intra‑cranial haemorrhage. The cause of death according to the doctor, was due to injuries Nos. I and 2 and the death was instantaneous. The injuries were anti‑mortem and were caused by a hard and blunt object.
The two injured witnesses Jumo and Khuda Bux were examined by Dr. Abdul Khalique, who found the following injuries on their person
Jumo (25)
(1) Incised would 4" x " x cutting the underneath bone on left parietal region.
(2) Incised wound of 2 " x " x " on lateral side of upper one third of left upper arm.
(3) Incised wound of 1 " x " x " on lateral side of left chest.
Injury No. 1 was grievous in nature, whereas, 2 and 3 were simple; but all appeared to have been caused by some sharp cutting weapon like a hatchet. The injured was admitted on 14‑9‑1974 at 4‑15 p.m. as indoor patient and was discharged on 8‑10‑1974 .
Khuda Bux (aged 25)
He had only one injury on his person :
(1) Incised wound 5" x 1" x 1" on right scapular region. It was simple in nature and appeared to have been caused by a sharp cutting weapon, such as a hatchet. He was admitted as indoor patient at 4‑15 p.m. on 14‑9‑1974 and was discharged on 28‑9‑1974.
The same doctor had also examined the appellant Ahmed (321 on 9‑1974 who had the following injuries:‑
(1) Lacerated wound 1 "x "x " on the right side frontal region.
(2) Lacerated wound " x " x " on right knee‑joint.
(3) Lacerated wound 1" x " x " on the upper 1 /3rd of the left leg.
(4) Lacerated wound 1 " x " x " on upper I /3rd of back of left leg.
(5) Abrasion " x 1 " x 1/8" x right shoulder joint.
6. All the injuries were simple in nature and appeared to have been caused by a hard and blunt object such as a lathi. He was also admitted as indoor patient on the same day at 4 p. m. and was discharged on 23‑9‑1974.
7. The case of the appellant in the committal Court was of denial. :le had admitted the dispute between himself and P.W. Muhammad Siddique. over. matrimonial matters and alleged enmity with the witnesses; Whereas, in the trial Court be stated that P. W. Muhammad Siddique was on illicit terms with the wife of his brother deceased Mohammad Sulleman and both bad asked Mohammad Siddique not to visit their house. On the day of occurrence, when they were returning at bipahri' time from their fields they saw Mohd. Siddique in their house. They challenged him and questioned him about his presence in their house; whereupon he took out the gun of deceased Muhammad Sulleman. Out of fear, the appellant, Muhammad Sulleman and his son Moulabux ran out of the house. When they reached near the shop of Mir Khoso, Muhammad Siddique fired from the gun at them, which hit deceased Moulabux. Mohammad Siddique then ran and was followed by the appellant and Mohammad Sulleman. In the meantime, the companions of Mohammad Siddique namely ‑Jump, Alt Gohar and Muhammad Alam reached there and attacked and. caused injuries to the appellant and chased deceased Mohammad Sulleman and killed him. The appellant further‑stated that he went to the police station, in order to lodge the report ; but was arrested and involved in the case, due to the influence of P.W. Mohammad Siddique. Since, he is the co‑sharer in the land, with his brother deceased Mohammad Sulleman, P. Ws. Haji Ayub and his brother Khudabux, have deposed against him, as well as, his son, co‑accused Ghulam Kadir. He produced 13 Land Revenue Receipts Exhs. 41 to 43 and the sale‑deed, in respect of the purchase of the land Exh:
55. He had, however, led no defence.
8. We have heard Mr. Murtaza Husain for the appellant and Mr. Manzoor Husain for A. G. for the State at some length. The main contention of Mr. Murtaza Husain was that the witnesses, who had implicated the appellant are related inter se and their version, unless corroborated by independent evidence, of high calibre; should not be accepted. In almost every case such an argument is advanced. It is an admitted position ~in this case that complainant Haji Ayub (P: W. 1), Jumo (P. W. 2), Khuda Bux (P. W..8) who were injured are very closely related to both the parties, the two deceased Sulleman and his son Moulabux, as well as the appellant and co‑accused Ghulam Kadir, his son. It is further admitted that the dispute over matrimonial matters was between the appellant and‑ P. W. Muhammad Siddique.
The eye‑witnesses had no direct enmity with either the appellant or his son co‑accused Ghulam Kadir, nor any evidence of hostility on their part with the appellant, is brought on the record to even suggest his false implication in the case. The evidence of P. Ws. Haji Ayub and Khuda Bux who are nephews of the appellant, points towards 'only one inference that they seem to be incapable of falsely implicating their own uncle and cousin, co‑accused Ghulam Kadir. The occurrence had taken place early in the morning. .All the eye witnesses were ordinarily expected to be present there. They are the natural witnesses whose presence at the vardat cannot be .denied, particularly, when R. Ws. Sumo and Khudabux were injured and complainant Haji Ayub had lodged the, report within 3 hours of the occurrence, covering a distance of. 6 miles. For false implication of an innocent person, deep‑rooted enmity. and irresistible hostility are necessary. In such cases ordinarily, statements of interested witnesses need corroboration and such corroboration need not be through a word of an independent witness, but could be by pieces of reliable, circumstances in the case, supporting the story put forward by the interested witnesses. It is necessary, in order to satisfy the mind of the Court, that the interested witness has spoken the truth. particularly when, unfortunately in our country, there is a tendency to falsely implicate the staunch enemy. In this case, there was no such hostility or deep‑rooted enmity, which could pursuade us to discard‑ the testimony of the eye‑witnesses.
9. While perusing the statement of the appellant; we find that he 1~imself had not alleged any enmity with the complainant or his brother injured Khuda Bux. At the trial, his case was that P. W. Mohammad Siddique was on illicit terms with the wife of his brother deceased Muhammad Sulleman. They saw Muhammad Siddique in their house, and challanged him, whereupon Muhammad Siddique took out the gun of deceased Muhammad Sulleman. Due to fear, the appellant, deceased Muhammad Sulleman and his son Moula Bux ran out of the house. When they reached near the chop of Miro Khosa, Muhammad Siddique tired from the gun, which hit Moula Bux. Muhammad Siddique ran and ,Was followed by him (appellant) and deceased Muhammad Sulleman. 1g. W. Jumo and two of their other companions joined Mohammad Siddique and caused injuries to the appellant and murdered Muhammad Sulleman.
10. The appellant further stated that he went to the police station, but his report was not recorded. He was, instead, implicated due to the influence of P. W. Muhammad Siddique. About P. Ws. Haji Ayub complai nant, and Khuda Bux, he contended that they were deposing against him, because he is co‑sharer with deceased Mohammad Sulleman in the land; Therefore to grab his share, they had falsely implicated him and his son.
11. It is obvious that the story put up by him is improbable, looking at the facts of the case, inasmuch as, if the deceased Mohammad Sulleman had suspected P. W. Muhammad Siddique, as was alleged by the appellant, he and his son, would not have spared him or protected him at the time of occurrence, as. well as thereafter. Such a serious allegation, the Khosa tribe people, will never overlook. The first victim would, have been the wife of deceased Muhammad Sulleman. They would never have substituted their ‑enemy, with, their uncle, who is the real brother of their own father. On the ‑other hand, the appellant had admitted his presence at the vardar, as well as, of the two deceased and P. W. Jumo, who was injured. The use of the gun is also admitted. No hostility was shown against P.WS. Haji Ayub complainant, and injured Khudabux, except that‑they. had deposed to grab the share of the appellant in the land. . We have seen Exhs. 41 to 53 which are receipt: for Payment of the land. revenue assessment.
12. It is possible that the money was paid by the appellant, on behalf of his father as it could be paid. by any body. We have tried to peruse Exh. 54 but it is unreadable. May be a sale‑.deed, in respect of the land, which was acquired by the father of the appellant and the land was mutated in his name for‑ which, the land revenue was paid by the appellant over which, there is o dispute. However, there is nothing in these documents to show that P. Ws. Haji Ayub and Khuda Bux are likely to grab the land, which belonged to their grandfather. The most, it could be said, is that they are entitled to their legal share in the land and nothing more.
13, Keeping in mind, the facts of this case, we are not impressed by the argument that the testimony of the eye witnesses should not be relied upon. Mere relationship of eye‑witnesses, with the deceased persons, is not sufficient ground to discard their version, in absence of enmity or some kind of hostility.
14. The appellant himself has admitted that both the deceased were murdered in the manner and at the places, as is alleged by the prosecution. His plea is that instead of P.W. Muhammad Siddique, is name was substituted. We find no basis in support of such a plea from the evidence. Even if the testimony of P. W. Mohammad Siddique ; kept out of consideration, being hostile, to the appellant, there is direct evidence of complainant Haji Ayub and injured witnesses Khuda Bux and Jumo, who are closely related to the appellant and whose presence at the vardat stands admitted, by the appellant himself. Their version, we are satisfied, is above board and is trustworthy. `Not a word is brought on the record in cross‑examination to suggest, why P. W. Mohammad Siddique would commit the murder of deceased Moulabux or that P. W. Junco would join him in committing the murder of deceased Mohammad Sulleman. It is absurd to‑ impute illicit relationship between P. W. Mohammad Siddique and wife of deceased Mohammad Sulleman. The statement of Panah (P. W. 4) who is also related to both the parties, has fully corroborated the version given by complainant Haji Ayub and has implicated the appellant. His name as a witness. does appear in the F. I. R. which was lodged, at the earliest.
15. The eye‑witness account that the deceased Moulabux was fired upon from the gun by the appellant is supported by the medical evidence. The probable time of causing of the injuries and that of the death of the deceased tallies with the time of occurrence. The report of the Ballistic Expert giving reasons, also supports the version of the eye‑witnesses that the crime empty secured from the vardat was fired from the shot gun, used by the appellant. During the struggle, between the appellant and deceased Mohammad Sulleman, the gun was broken. The injuries sustained by the deceased Mohammad Sulleman, as well as, the appellant are also supported by the Medical evidence, coupled with the production of the gun, in its broken condition, as is stated, by the witnesses.
16. It was next argued that the appellant had no motive for committing the murder of his own real elder brother and nephew. From the evidence, it appears that the deceased Mohammad Sulleman had prevented the appellant not to abuse P. W. Mohammad Siddique, with whom the appellant was very displeased, over the :matrimonial dispute. There were serious altercations. The appellant wanted to attack P. W. Mohammad Siddique whereas, the two deceased were trying to protect him. When the appellant aimed the gun at Muhammad `Siddique, in order to prevent the appellant from firing at him, deceased Moulabux covered P: W. Siddique, thinking that the appellant may not fire at him but the appellant was so' much enraged that he did not' like deceased Moulabux to come in his way. He fired at him and killed him at the spot The appellant persisted in chasing P. W. Mohammad Siddique; fallowed by deceased Mohammad Sulleman, who appeared determined to stop the appellant from killing P. W. Mohammad Siddique, and in the process lost his own life at the hands of the appellant. For ail purposes, it . was the motive for committing the crime. The evidence of all the eye‑witnesses is consistent that during the scuffle, the gun broke into two pieces with the result that its barrel remained in the hands of the appellants, while its butt came in the hands of deceased Mohammad Sulleman. It has been unanimously stated by all the eye‑witnesses that the appellant had inflicted blows by means of the barrel of the gun, on the head and other parts of the of the body of deceased Muhammad Sulleman, which resulted in his instantaneous death. The appellant had also received injuries given by the deceased, which establishes his presence at the vardat and participation in the commission of the chime.
17. P.Ws. Jumo and Khuda Bux were injured by co‑accused Ghulam Kadir, who has not filed any appeal against his conviction and sentence. They are eye‑witnesses of the occurrence in respect of the murder of deceased Mohammad Sulleman.
Who had grappled with the appellant to snatch the gun to prevent him from chasing and killing 'P. W. Mohammad Siddique. The presence at the vardat of P. W. Jumo and Khuda Bux cannot be doubted. It has been faintly argued by Mr. Murtaza Hussain that it was misjoined of the accused and the trial of the appellant with co‑accused Ghulam Kadir is vitiated. At, no previous stage such an objection was raised. While appraising the entire evidence, we are satisfied that the trial of the appellant, with his son co‑accused Ghulam Kadir, who had shared the common intention and had instigated the appellant, as per the statements of eye‑witnesses Haji Mohammad Ayub and injured Khuda Bux, was proper and legal.
18. As a result of the above discussion, we are of the opinion, that the appellant was rightly convicted by the learned Additional Sessions Judge, Dadu for, the murder of Moulabux and his father Mohammad Sulleman. There are no extenuating circumstances for imposing lesser sentence. We accordingly dismiss the appeal and accept the reference, for confirmation of death sentence.
Appeal dismissed.