HAMAL Versus STATE

Ch,‑ appellants were tried and convicted by the learned Additional Sessions Judge, Jacobabad and sentenced. by the judgment dated 31 st December, 1977, as under :‑‑

(a) Under section 307 read with R. 1. for 5 years and fine of Rs. 500 in section 149 default to undergo further R. 1. for six months.

(b) Under section 366/511 read R. 1. for 5 years and fine of Rs. 500 with section 149. P. P. C. or in default to undergo further R. I. for six months.

(c) Under section 452 read with R. 1. for three years. section 149, P. P. C.

(d) Under section 148, P. P. C. R. 1. for one year.

The substantive sentences were ordered to run concurrently, except the sentences, in default of payment of fine, which were directed to run consequently.

The appellants have separately filed these appeals against the judgment of conviction and they will be disposed of by this judgment.

2. The prosecution case briefly is that complainant Lutf Ali Shaikh is the Chowkidar in Civil Hospital, Garhi Khairo, District Jacobabad. The house of the complainant consists of two rooms, having a common court yard, in which all the inmates reside. Complainant's house is at 100/ 150 paces, from the Hospital. The complainant had married Mst. Hajul, daughter of appellant Razi alias Raza Mohammad Jalbani, after paying Rs. 3,000 as consideration. The appellant Razi is resident of village Walidad Khan Lund Taluka Thad Mirwah District Khairpur. After about six months the marriage, when Mst, Hajul had visited her parents, she was detained, by appellant Razi, who again demanded more money. She was, however, restored to the complainant on payment of additional sum of Rs. 1,200. The complainant thereafter, did not allow Razi, his father‑in‑law, and the other relatives, to visit his house. At the inter vention of the elders, including uncle of the complainant, Sohbat and others, Mst. Hajul was subsequently permitted to visit her parents and she was again detained by appellant Razi. The complainant approached Dada Khan, a Nakmard and got Mst. Hajul restored to him. This time the complainant told the appellant Razi, not to visit his house. in future at all, for taking Mst. Haiul, to his house. The appellant got furious and threatened the complaint that he would forcibly take away his daughter Mst. Hajul, and in case of opposition, would murder the complainant.

(3) Appellant Razi and Arab are brothers inter se Appellant Soomar is nephew of Razi and is cousin of Mst. Hajul. Appellants Hawal and Eiden are neighbours of Razi, and are on visiting terms with him.

4. On 15th February, 1972 at about sunset time, the complainant was on duty at Civil Hospital. The five appellants accompanied by five others, armed with guns, had trespassed into the house of the complainant, in order to forcibly abduct Mst. Hajul. At that time, P. W. Heesab and Afghan, brothers of the complainant, Mst. Zainab their mother. Dhani Bux, their father and Mst. Hajul wife of the complainant, were present in the house. Mst. Hajul was sitting in the kitchen and was preparing the meals. The other members of the family were sitting near the fire in the verandah, as it was cold during winter. They were also having their meals. They found the appellants who were previously known to them, being their relatives, entering the house. They came and stood near the fire place. Appellant Razi asked his daughter Mst. Hajul to go with him. She refused, upon which the appellant Razi, caught hold of her and forcibly dragged her, in order to forcibly abduct her. In the meantime, P: W. Haseeb abused the appellant Razi, and asked him, not to take the law into his hands and leave Mst. Hajul. P. W. Heesab grappled with Razi,~ but Razi fell him down, and relieved himself. Appellant Arab an absconding accused Mew fired at Haseeb from their guns. Heesab was hit and he fell down. Another absconding accused Biland, accompanied by all the other accused, escaped, while firing their guns in the air. On hearing of the gunshots and cries of the inmates, the complainant took his licences single battled gun, with himself, and rushed towards his house, while firing in the air. When he was at a distance of 50 paces away from his house, he saw the appellants, accompanied by accused Dilawar and Jourak (both now dead) and the absconding accused Mewo and Biland and one Sher Mohammad, armed with guns, coming out of his house, firing their guns in the air. The complainant, on entering his house, found his brother Heesab lying injured, with gunshot injuries. He saw his wife Mst. Hajul, Mst. Zainab his mother, Dhani, Bux, his father and Afghan his brother near the injured and were weeping. In the meanwhile, people from the neighbourhood also reached there, P. W. Haseeb was conscious. On inquiry by the complainant, had narrated the details, how the appellants, accompanied by the co‑accused had entered the house and had tried to forcibly abduct Mst. Hajul, and when he tried to stop them, he was thrown on the ground and was fired upon and injured by appellant Arab and absconding accused, Mew. The complainant asked his brother Afghan and others, to bring injured Heesab to the police station. He himself pro ceeded to lodge the report to the Garhi Khairo Police Station, which is at a distance of 400 to 500 paces from his house. Writer Head Constable Mohammad Hashim (P. W. 8) took down first information report at 7.30 p. m. (Exh. 9). In the meantime, injured Heesab was also brought by the witnesses to the police station. He had gunshot injuries on his person and had become, by then, unconscious. He was referred to the Civil Hospital Garhi Khairo, for certificate and treatment. Statements of witnesses Dhani Bux, Rasool Bux, Hussain Bux and Punhal were recorded by him. On the next day morning (16th February, 1977), P. W. Hashim W. H. C. visited the vardat, shown by the complainant Lutf Ali. It was in the courtyard of his house, near the kitchen. Seven empty cartridges were found lying on the ground, which were secured. Blood was found lying on the ground, which was collected. From outside the house of the complainant, police had also secured seven more empty cartridges. The mashirnama Exh. 11, was prepared. Since the condition of injured Haseeb had deteriorated, the doctor informed the police and the Mukhtiarkar and the First Class Magistrate Garhi Khairo, was requested, who had recorded his dying declaration. On 18th February, 1972 A. S. I. P. Abdul Hameed received the papers for further investigation. He examined P. Ws. Afghan, Mst. Hajul and Mst. Zainab. The case papers were, thereafter handed over to S. H. O. Abdul Ghani who had challaned the case in the Court.

5. The case of the appellants on the other hand, was of denial. They claimed enmity with the witnesses, who were stated to be the members of the same family.

P. W. injured Heesab was examined by the Medical Officer Dr. Habibur Rehman on 15th February, 1972, who found the following injuries on his person :‑

(1) A wound of entrance 1 " x 1 " on the entro medial surface of the left upper arm at middle part.

(2) A wound of entrance " x " x in diameter on the anterior surface of the left upper arm I" above and medial to the injury No. 1:

(3) A wound of entrance " in diameter, on the anterior surface of upper arm one 1" above and medial to the injury No. 2.

(4) A wound of exit on the postero medial side on left upper arm 1" x 1 " apart from each other.

(5) A wound of entrance " in diameter near the upper wound of the injury No. 1.

(6) 3 grazing wound 3/4" in diameter in verticle line 1" apart from each other and 3" left to the mid‑vertebrae line.

(7) 2 wounds of entrance " in diameter and 1 " apart from each other on the left axillary fold.

(8) A wound of entrance half in inch diameter and two inches below injury No. 7.

(9) A grazing wound 1" x " on the back " lateral to the injury No. 6.

(10) A grazing wound 1" x 1/6" on the right parietal region.

(11) An abrasion 1" x " on the right shoulder point.

(12) A contusion 1" x " on the right forehead.

(13) A grazing wound " x " on the right deltoid region.

(14) A contused wound 1 " x " on the occipital region.

6. The injuries from 1 to 10 and 13th were certified to have been caused by the discharge from a fire‑arm such as a gun. Whereas injury No. 11 was the result of coming in contact with a hard rough ground, and injuries Nos. 12 and 14 appeared to have been caused by a blunt substance. The nature of injuries I to 5 were grievous and the rest were simple. The age of injuries was within 12 hours, at the time of examination.

7. In support of the prosecution version, four eye‑witnesses were examined, namely Mst. Hajul Mst. Zainab, Heesab (injured) and Afghan Their version is supported by the complainant Lutf Ali. The pieces of evidence led by the prosecution are :‑

(i) Eye‑witness account.

(ii) Motive.

(iii) Medical Evidence ; and

(iv) Recovery of empty cartridges from the vardat.

8. Since Mst. Hajul was the bone of contention and was present at the time of occurrence, it would be better to refer to her statement first. It is admitted position, that she is the daughter of appellant Razi and neice of appellant Arab. She was present in the kitchen, at the time of occurrence, when she saw all the five appellants, armed with guns entering the house of the complainant. They came to the place, where injured Heesab, his brother Afghan, their mother Mst. Zainab and their father Dhani Bux were sitting near the fire and were having their meals. Her father, appellant Razi, caught hold of her and asked her to go with him. On her refusal, he forcibly dragged her and tried to abduct her. Injured Heesab intervened and abused the appellant Razi and grappled with him. Appellant Arab and Mew fired, from their guns, at Heesab, who was hit and fell down. She and the other inmates of the house raised cries. The .appellants, in the meantime, escaped, while firing their guns in the air, realising that Heesab was seriously injured. Almost at that time, complainant Lutf Ali, her husband, also came running, firing in the air from his licensed gun, apprehending trouble and entered the house. On hearing cries. and guns firing, the neighbours also reached there. Injured Heesab was still in his senses. On inquiry, he narrated the details of the occurrence, to the complainant, who proceeded to the police station and lodged the report. Injured Heesab was carried by his brother, Afghan and others, to the police station. About the motive Mst. Hajul had disclosed, that her father appellant Razi, had given her hand, in marriage, to the comp lainant Lutf Ali, for consideration of Rs. 3,000. She further added that when she went to visit her people, she was detained by her father, who refused to allow her to return to her husband. She was restored after her husband had paid Rs. 1,200 more. She went on to. state that her father (appellant Razi) had told her, that he would again bring her to his house and would sell her to some other person for more money. If her husband Lutf Ali would oppose him, _he would be murdered. She had deposed that on the day of occurrence, the appellants had gone to the house of her husband to forcibly abduct her. She, was cross examined at length, but nothing substantial was brought on record to discredit her versions. She was asked in cross‑examination about her being `Kari' with P. W. Heesab, which she had denied. It is a regrettable tendency in our society, to disgrace female witnesses, when they appear in criminal cases in Courts. P. W. Heesab and complainant Lutf Ali are real brothers. They, alongwith their third brother Afghan, were living together in the same house with their father Dhanj Bux and mother Mst. Zainab. It is not conceivable to accept such a suggestion of a shameful allegation, about which the inmates of the house were ignorant, whereas the appellants, who did not reside in the same house or the same village, were aware of. If her father, appellant Riaz, was not of the character, as his own daughter had described, she would not have supported the case of the complainant. Appellant Arab is her uncle and Soomar is her cousin. They say, blood is thicker than water ; but truth prevails over it, when the cruel father had taken the law into his own hands. It is difficult to believe that she would falsely implicate her ether, uncle and cousin.

9. The next witness is injured Heesab who has given the eye‑witness account and has corroborated the version deposed to by Mst. Hajul. He was present in his house alongwith his father, mother and brother, as well as Mst. Hajul, wife of the complainant, at the time of the occurrence. The complainant was on duty in the Civil Hospital Garbi Khairo. when at inset time, the appellants and others had trespassed into the house, armed with guns. They were previously known to him. He had given lie details of the occurrence in his deposition in the Court in the following words:

"Accused Razi told his daughter Mst. Hajul to go with him, on which she refused. Accused Razi then caught hold of Hajul and dragged her. I told Razi to leave Hajul and thereafter I abused Razi and grappled with him. Razi then made me fall on the ground, on which Arab and Mewo fired from their guns, at me which hit me. Biland and others also fired from their guns, but as I was struggling I cannot say, where they were firing at. The inmates of the house raised cries. Lutf who has his licensed gun came there, while firing from his giro. P. Ws. Hussain Bux, Rasool Bux and Punhal also followed Lutf Ali. I narrated the incident to Lutf Ali. Lutf Ali then went to the police station for reporting the crime."

This witness has further stated about the motive, how the complainant as married to Mst. Hajul and the manner in which she was subsequently stained and was returned by appellant Razi, after accepting Rs. 1,200.

He is an injured eye‑witness and his presence at the vardat is difficult doubt.

10. The remaining witnesses Mst. Zainab and Afghan have also implicated the appellants in almost the same words, as that of Mst. Hajul and Heesab. They have fully supported the version of the prosecution case. It is needless to repeat verbatim what they had stated in the Court.

11. The eye‑witness account is further supported by first informer Lulf Ali, who is husband of Mst. Hajul. He had corroborated the first information report which was lodged at 7‑30 p. m. at the Police Station Garhi Khairo. He has also corroborated the version of P. W. Heesab ,who had narrated the incident to him. He has also deposed, as to the motive and the background of the case.

12. It is true that since no recovery of' the gun was made and theref ore the mere recovery of the empties from the place of occurrence, would not provide substantive corroboration of the fact of firing of the guns carried by the appellants. Nevertheless, the recovery of the empties goes to show that the version of the injured Heesab, as regards the firing way correct and that he was fired upon, by means of guns and had received such injuries, on his person, which fact is further, corroborated by the medical evidence.

13. P. W. Mohammad Hashim was writer Head Constable incharge of Police Station Garhi Khairo. He had recorded the F. I. R and had visited the vardat which was near the kitchen, in the courtyard of the house of the complainant. Blood was found lying there. Severn empty cartridges were found, which were secured by the police. The recovery of the empties suggests the number of grounds that were fires The medical evidence shows that 11 injuries on the person of Heesab were caused by the discharge from the fire arm, such as a gun.

14. I have heard the learned counsels appearing for the appellants, as well as the State, with their assistance, I have also perused the record and gone through the statements of all the witnesses.

15. I have been argued on behalf of the appellants that no offence under section 366, P. P. C. is made out because Mst. Hajui, being daughter of appellant Razi, could not forcibly be abducted. Reliance is placed on the case of Hussain Ali Shah (1969 S C M R 491) in which, the point for decision before the Court, was, that the prosecution has failed to establish the intention, necessary to constitute an offence under section 366, P. P. C. That is to say, in order to obtain a conviction under that section, it is not sufficient to show that the woman had been abducted, i.e. that she had beers obliged, by the use of force, or induced by the practice of the deceit, to go from any place it is necessary also that this should have been done, with one of the specific intentions, that she should be subjected to illicit intercourse, that is to say, intercourse outside wedlock by the use of either force or abduction. Section 366, P. P. C. read as, under:‑

"Whenever kidnaps or abducts any woman with intention that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to be illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse ..

16. In the instant case, the facts are different. 1st. Hajul was gives in marriage, on consideration of money. She was detained again, by her father and was restored to her husband, at the intervention of the elders. Threats were thereafter administered to abduct her and detained her again. In her evidence she had specifically stated that, "her father Razi had told her that he would take her to some place and sell her to some other persons, and would murder her husband Lutf Ali. Therefore, her father alongwith other accused, had trespassed in their house, in order to kidnap her and to kill her husband." It was therefore clear indication from the evidence that the appellants had the clear intention to use force and abduct Mst. Hajul and take her away and sell her for money, in marriage, to some one else, after killing her husband; but the accused persons could not succeed in their commission, though they had come well armed and prepared for it. There is, therefore, no force in this argument, which was also properly dealt with by the learned trial Judge and was rejected.

17. The fire‑arm injuries by means of guns on the person of P. W. Heesab clearly indicate, the attempt of murder, on him. The evidence further shows that appellant Razi accompanied by his other accom plices, had attempted to forcibly abduct Mst. Hajul from her house and thereby clearly committed offence of rioting, being armed with deadly weapons. They had trespassed into the house, armed with guns and had made preparations to abduct Mst. Hajul and in the process, to hurt and assault any one who would come in their way. Provisions of section 149, P. P. C. would be attracted in this case, inasmuch as, if an offence is committed by any member of an unlawful assembly, in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed, in the prosecution of that object, every person, who at the time of committing that offence, is a member of the same assembly, would be guilty of that offence.

18. On the point of motive, the evidence of the complainant, coupled with that of Mst. Hajul and injured Heesab is so direct and convincing that there is no room for doubt. It had almost gone un challenged.

19. The next point argued by Mr. Sadikally Khoja is that all the P. Ws. are interested and are, in addition, hostile to the appellants, therefore, their testimony requires independent corroboration, which is wanting in this case. The argument is misconceived. In the instant case, at that hour of the occurrence, it was natural for the witnesses to be present in heir own house, their version has not been shaken in the cross‑examinat ion. Their testimony is consistent and their version is true and believable. it cannot be doubted. In the case of Mohammad Rafiq alias Titai v. State (P LD 1974 S C 65). The Supreme Court had observed, "of late, a tendency ha grown to discard the testimony‑ of seemingly reliable and natural witnesses to a crime, on speculation, as to the manner, in which the deceased person in the case was injured ..."

20. It was next argued that the independent witnesses were not examined in the case, to corroborate the version of the interested witnesses. It is not necessary to examine outside witnesses, when the evidence of the inmates of the house is reliable and trustworthy.

21. As a result of the above discussion, as well as perusal of the record, I am satisfied that the appellants were rightly convicted and there is no ground for interfering with the judgment of conviction and sentence. There is no merit in the appeal, which is hereby dismissed.

Appeal dismissed.