WALI MUHAMMAD Versus STATE
1. The appellants Wali Muhammad and Haji Mohammad Siddik, related inter se, were tried by the Sessions Judge, Larkana on a charge under section 302/34, P. P. C. and by a judgment dated 13th December, 1978 were found guilty of the said offence and sentenced to imprisonment for life and to pay a fine of Rs. 2000 each or in default further R. I for two years. They have filed a joint appeal through Mr. Azizullah K. Shaikh who has been heard by me. On the conclusion of the case on 10th March, 1981 T had by a short order dismissed the appeal of appellant Wali Mohammad and accepted the appeal in respect of Haji Mohammad Siddik who was acquitted and directed to be released forthwith. The reasons for such short order will follow presently.
2. The brief facts of the case are that on 18 th October, 1975 at about 4.45 p. m. P. Ws. Imamdin and Abdul Majid together with one Kandero (not examined) were sitting at Bahram Railway Station and they saw the two appellants at the station. Wali Mohammad was carrying a hatchet in his hand. At that time deceased doctor Ferozdin also came at the railway station and when he passed from near the appellants, Wali Muhammad gave him a hatchet blow so that Ferozdin fell down. The appellants, who were together were challenged whereupon appellant Mohammad Siddik took out a pistol from the fold of his shalwar and fired in air stating that since the appellants were taking their revenge none should interfere. Thereafter appellant Wali Mohammad gave some more hatchet blows to Ferozdin who died instantneously. The two appel lants started running when a Police party consisting of A. S. I. Mohammad Yousuf, Constable Ghulam Hussain and some other policeman came and caught hold of both the appellants. The police party thereafter went and saw the dead body and took away the two appellants to the police station alongwith the weapons. At Bahram Police Outpost A. S. I. Mohammad Yousuf registered the case on behalf of the State and sent a copy of the report to Miro Khan Police Station for transcribing it in section 154 Cr. P. C. Book.
3. A. S. I. Mohammad Yousuf secured the blood-stained hatchet from appellant Wali Mohammad and a pistol with three live cartridges from appellant Haji Mohammad Siddik and he arrested both the appellants. Mohammad Jaffer served as a mashir but it seems the weapons had been seized before the arrival of this mashir. The Police Officer then went to the Vardal, prepared a mashirnama of the same. Three spent cartridges were also secured from near the dead body. An inquest report was prepared whereafter the dead body was sent to Dr. Nanikram at Kamber Dispensary for post-mortem examination. The dead body was found to be having four incised injuries, three on the neck and one on the left
4. Shoulder. The hatchet secured from Wali Mohammad and the pistol with cartridges secured from Haji Mohammad Siddik were sent by A. S. I. Mohammad Yousuf to Miro Khan Police Station but it seems such batch: was lost so that the same was not even sent to the Chemical Examiner. In regard to the loss of the hatchet prosecution examined A. S. I. Jalal Khan and police constable Abdul Sattar of Miro Khan Police Station. On completion of investigation the two appellants were sent to stand their trial.
5. At the trial the prosecution examined Imamdin and Abdul Majid as eye-witnesses. A. S. I. Mohammad Yousuf and constable Ghulam Hussain were examined as members of the police party from Bahrain Police Outpost who had reached the vardat on hearing commotion and firearm reports and who hall arrested the two appellants. Doctor Nanikram was examined to furnish medical evidence. Mohammad Jaffar was examined as the mashir in respect of the seizure of weapons, scene of offence and the inquest report. Besides these witnesses prosecution examined Karamali topedar who bad inspected the scene and drawn the sketch. A. S. I. Jalal Khan and police constable Abdul Sattar, as stated above, were examined to prove the loss of the crime hatchet. Noor Nabi. a Clerk of the Sessions Court, Larkana was examined to produce some record to the establish enmity between the parties.
6. The appellants examined no witnesses in their defence but they denied the prosecution ease. In regard to the witnesses, they stated that they were related inter se find interested in deceased In his statement appellant Wall Mohammad went on to state as follows:-
7. "The deceased was on illicit terms with a woman Buriro by caste. Qamardin brother of the deceased had abducted a Jamali woman. The relatives of that woman were annoyed with Qamardin and the deceased. I had sent application to S. P. Larkana against H. C. Faiz Mohammad of Bahram Police Post. I produce the photo-stat copy of that application Exh.
32. On this application he was transferred, Police of Bahram Post was therefore displeased with me. A. S. I. P. Mohammad Yousuf is friend of H. C. Faiz Mohammad."
8. It seems that it was the case of appellant Wali Mohammad that on account of abduction of a Jamail woman by Qamardin, the brother of deceased Ferozedin, some Jamalies being annoyed caused the death of Ferozdin. The statement further conveys that the local police was hostile to appellant Wali Mohammad as he had made a report against Head Constable Faiz Mohammad as a consequence of which report such Head Constable had been transferred from Bahram Police Outpost. The statement of Haji Mohammad Siddik is identical to that of appellant Wali Mohammad.
9. It would appear that the prosecution case rested .on the evidence of eyewitnesses Imamdin and Abdul Majid and the same was sought to be corroborated by incriminating recoveries from the two appellants and their arrest at the spot. The prosecution also relied on motive.
10. I propose to take up the evidence in regard to motive in the first instance. The witnesses have not directly alleged any motive against two appellant except attributing a statement to appellant Haji Muhammad Siddik to the effect that after firing a shot this appellant told the persons including Imamdin and Abdul Majid not to come near as they were taking revenge. Such statement does not conclusively show that any animosity existed between the parties. The prosecution being conscious of the fact produced Noor Nabi, a clerk in the Sessions Court, Larkana, who brought the record and proceedings in Sessions Case No. 84/1976. and produced the same before the trial Court. In this case Qamardin, brother of deceased was an accused in a case of murder and one Ashiq Ali son of Dhani Bux was the complainant. The said Ashiq Ali is Magsi by caste, whereas the two appellants are also Magsi by caste. It seems to be the case that since Ashiq Ali Magsi bad filed a case of attempt to murder against Qamardin, brother of deceased, the two appellants who were Magsies, may have taken revenge. However, from the report it seems that Ashiq Ali Magsi was prevented by Qamardin from coming to his premises. Whether this is sufficient motive is an open question. However, all I need to say is that besides this allegation there is nothing else on the record to indicate that the two appellants had a motive to commit this crime.
11. Coming to the evidence of the eye-witnesses Imamdin and Abdul Majid I have been impressed by their evidence, Their evidence is con sistent and their being present at the scene is also probable. Imamdin leas stated that on the day of incident, he was going to bus-stand which is situated near the railway station for a walk and it was then that he saw the incident. He has given clear evidence in regard to all the circumstances of the case. He has further stated that he works in a Clinic at Bathi village which is at a distance of six miles from Bahram but all the same he has given his place of residence as Bahram. He has also named the other witness Abdul Majid. It is suggested in cross-examina tion that be being a brother of Qamardin was giving false evidence on account of previous case but to that extent he is, I suppose, naturally denying the allegation. However, his presence at the scene cannot be Doubted and his name appears in the First Information Report. The incident occurred in broad day light and there was no chance of mistaken identity. There is hardly any reason for A. S. I. Mohammad Yousuf to mention his name in the First Information Report if be had actually, riot been present. I completely rely on his evidence. In regard to Abdul Majid I have no doubt that he was available at the scene. He has explained his presence by stating that he had gone to village Lundi which is at a distance of two miles from Bahram for purchase of buffalo but the seller had no buffaloes so that he returned to Bahram railway station so as to catch a train. He was no doubt confronted with his 164, Cr. P. C. statement in which he had not mentioned the purpose for his visit to Bahram but all the same he has stated in 164, Cr. P. C. statement that he together with Kandero bad gone to Bahram for their work. This is not such a material omission which should persuade me to disbelieve this witness or doubt his presence. I may further state that his name is also mentioned in the First Information Report as is the name of Imamdin. Besides nothing is shown which might persuade me to think that he is an interested witness. In regard to the description of the incident and the availability of the adequate chance of identification of the appellants the case does not show any features which night persuade me to take a view contrary to the views of the trial Court in regard to credibility.
12. The next piece of evidence against the appellants is their arrest at the scene and recovery of the weapons. On this point there can be no manner of doubt whatsoever. Mashir Mohammad Jaffer has been examined by prosecution and in a very honest and forth-right manner he has stated that the hatchet and the fire-arm had already been seized by police when he had arrived at the Police Outpost for preparation of the mashirnama. However, he does state that he saw a hatchet and a pistol and he also states that two appellants were at the police station. On the point of arrest of the appellants and the seizure of the weapons we have evidence of Imamdin and Abdul Majid also besides the evidence of A. S. I. Mohammad Yousuf and constable Ghulam Hussain. All that the appellants stated in their section 342, Cr. P. C. statements was that they have been arrested from their house. This statement is patently false. If that were so, A. S. I. Mohammad Yousuf could not have taken the risk of stating in the First Information Report that the two appellants had been arrested. I am in no doubt whatsoever that both the appellants were arrested at Bahram Railway Station together with the weapons as alleged. No doubt the blood-stained hatchet seized from appellant Wali Mohammad has been misplaced or caused to disappear. But on the point of recovery of that hatchet the evidence is consistent and comes from almost unimpeachable source. Each one of the witnesses has unanimously deposed that the hatchet was recovered from appellant Wali Mohammad. Of course the pistol and the cartridges seized from appellant Haji Mohammad Siddik were also produced in the Court. I rely on this piece of evidence.
13. In regard to the case against appellant Wali Mohammad I am left in no doubt that he gave hatchet injuries to deceased which resulted in his death. He was arrested almost on the spot and at that time a hatchet bearing marks of blood was found in his possession. In these circumstances I am of the view that appellant Wali Mohammad has been rightly convicted and his appeal merits to be dismissed. The appeal of appellant Wali Mohammad is dismissed. The question arises in regard to conviction of Haji Mohammad Siddik. Admittedly be has caused no injuries to the deceased. All that is alleged against him is that he was in company of Wali Mohammad and when Wali Mohammad was sought to be arrested he fired a shot in air to scare the persons who were chasing him. It is also alleged that he asked the persons pursuing him to desist because it was the case of taking private revenge. In that regard the First Information Report states that Haji Mohammad Siddik had at the spot said "he has taken the revenge". By use of the singular "he", it was meant that Wali Mohammad had taken the revenge. I have given my anxious consideration to the point of Haji Mohammad Siddik being saddled with common intention to commit this murder. There is no evidence of pre-concert and the only circumstance in that regard is his mere presence. On the other hand the evidence discloses that the pistol was in the fold of his shalwar which indicates that be did not propose to use the same. If Haji Mohammad Siddik has used the pistol, it may be with intention to scare away the persons who were chasing him as he might have though that such persons might even apprehend or arrest him when he bad actually done nothing. Even in regard to firing it is not the case of prosecution that he aimed at any person. An inference of common intention cannot be drawn unless it is necessary inference deducible from the circumstances of a case. In the present case on anxious consideration and out of abundant caution I have come to the conclusion that Haji Mohammad Siddik cannot be saddled with liability of common intention with appellant Wali Mohammad. In these circumstances I allow the appeal of Haji Mohammad Siddik and acquit him. He shall be released forthwith unless required in any other case.
14. In the end I express regrets that the judgment in this case has been delayed but that was for the reason of the paper book having been misplaced.
15. Order accordingly