ABDUL KARIM Versus THE STATE
1. The appellant was tried under sections 302, 307/34, P. P. C. for the murder of Jamroz Khan son of Ali Jan and for firing at P.Ws. Hafeezur Rehman, Mohammad Pervez, Tahir Shah and Mohammad Khan before the learned Sessions Judge, South Karachi who has convicted him under section 302/34 P.P.C. and sentenced him to life imprisonment and to pay fine of Rs.2,000 or in default to undergo R.I. for six months. He has also been directed to pay compensation of Rs.10,000 which is to be paid to the heirs of the deceased, and in default he was to suffer further R.I. for two years. He has been acquitted so far the charge under section 307 P.P.C. is concerned vide Judgment dated 20th September, 1987.
2. The brief facts of the case are that on 6-5-1985 one Sami Khan brother of deceased Jamroz Khan lodged a report at P.S. Jakson Karachi, alleging therein that he lives with his brother Jamroz Khan in Block 38, Quarter No.628, K.P.T. Line, Keamari, Karachi. He is a permanent labourer in the dockyard. His brother Jamroz Khan also used to work as labourer. There are two factions in Karachi Harbour Ship Union. Abdul Karim is the President, while Fazil is Secretary of one faction who were supported by Khan Zareen, whereas Saifur Rahman is the President of other faction and complainant's brother Jamroz Khan supports Saifur Rahman, both factions claimed leadership. Fazil and Abdul Karim suspected that the complainant and his brother support Saifur Rehman, and that the complainant has brought this faction. Whereas according to the complainant, he did not have any concern with this Union. In fact, the matter was that Karim and Fazil after taking money admitted new labourers in the Union and provided work to them and did not provide work to senior labourers, this was the reason for the opposition. That on 6-5--1985 at 9.00 a.m. his brother Jamroz, alongwith Hafizur Rehman, Mohammad Pervez, Mohammad Shah and Nooruddin went to give invitation of marriage at Dera of Jamadar Shafiq from the complainant's place. While the complainant was present at Dera, some boys came running and told him that Jamroz Khan was shot at by Mohammad Fazil and Abdul Karim, and they have run away. He immediately reached :Majid Colony and found that dead body of Jamroz Khan was lying at the Dera of Shafiq alias Lal. P.Ws. Hafizur Rehman, Mohammad Pervez, Mutahir Shah and Mohammad Khan told him that when they reached the Dera of Lal, Mohammad Fazil and Abdul Karim came on scooter and cycle respectively. Mohammad Fazil fired at Jamroz Khan with pistol or revolver which hit him below the right shoulder, Jamroz Khan fell down, and they all moved forward to catch the accused but Abdul Karim fired a pistol or revolver and then both of them ran away in the street of Majid Colony. The complainant saw, that Jamroz Khan; was dead.
3. This F.I.R. was recorded by S.H.O. Mohammad Suleman and same has been produced as Exh.9. Thereafter the S.H.O. visited Wardat and prepared Mashirnama in presence of Mashirs Mohammad Shafiq alias Lal Mutahir Shah and Hafizur Rehman, and obtained their signatures, the Mashirnama has been produced as Exh.12. Thereafter, Mashirnama of dead body was prepared in presence of same Mashirs and the same has been produced as Exh.13. The S.H.O. then prepared inquest report and the same has been produced as Exh.15. Thereafter, he recorded the statements of P.Ws. Samin Khan, Hafizur Rehman, Mohammad Pervez, Mutahir Shah, and Mohammad Jan. Before the challan was submitted in Court, co-accused Mohammad Fazil died. The dead body of deceased Jamroz Khan was referred by the S.H.O. for post-mortem examination and certificate. He had also recovered blood-stained earth from the Wardat, blood-stained piece, of rope of cot where dead body was lying, Vespa scooter, and cycle were also secured under the same Mashirnama. Blood-stained earth and piece of Rassi 'rope' were sent to the Chemical Examiner for examination and report, the report has been produced as Exh.28. According to S.H.O. the appellant accused Abdul Karim was arrested by another Police Officer, as he was transferred in the meantime. The case was challaned by Inspector Khan Afzal.
4. A formal charge under sections 302, 307 read with section 34,. P. P. C . was framed against the appellant to which he pleaded not guilty.
5. At the trial, the prosecution examined P.W. Samin Khan complainant, P.W.2 Muhammad Perviz, an eye-witness, P.W. 3 Hafizur Rehman an eye-witness, he also acted as Mashir of Wardat and has produced the Mashirnama as Ex.12. Police had also prepared Mashirnama of dead body in his presence which he had produced as Exh.13. P.W.4 Mutahir Shah, an eye-witness, acted as Mashir of dead body as well as inquest report, and produced inquest report as Exh.15. P.W.5 Mohammad Jan an eye-witness, P.W. 6 Sub-Inspector Sabir Hussain who had searched for the accused and on inquiry he came to know that accused Fazil had died, while Abdul Karim was not traceable. P.W.7 Dr. Munawar had carried on post-mortem on deceased Jamroz Khan. He has produced post-mortem report as Exh.16. P.W.8 Sub-Inspector Mohammad Suleman who happened to be S.H.O. of P.S. Jakson, on the day of incident, and had recorded the F.I.R., and carried on the entire investigation except the arrest of accused Abdul Karim, and the case was challaned by Inspector Khan Afzal, as in the meantime Sub-Inspector Mohammad Suleman was transferred. He has produced chemical report as Exh.28.
6. After close of the prosecution case, the statement of appellant Abdul Karim was recorded under section 342 Cr.P.C. and his case was that of denial. He examined himself as a defence witness under section 340(2) Cr.P.C. and stated that during the days of this incident he was working as labourer at Karachi Dock Yard. Deceased Fazil co-accused was also labour worker there. Deceased Jamroz Khan was also working there as labourer, he had no enmity with Jamroz Khan but his brother Samin Khan who is dock worker and used to punch cards of labourers, and was taking half of the charges for himself and half of the charges he used to pay to the labourers. In exchange he was using other persons and receiving considerable amount. This was against the rules and terms of their department. He had reported the matter to the Supervisor of Dock. Samin Jan was given notice which annoyed him. Miskin Khan, who is appearing in this case as counsel for the complainant, was the General Secretary of the labourers Union Karachi Harbour. Labourers were dissatisfied with him and passed vote of no-confidence against him. He was removed from the post of General Secretary of the Union. A meeting of General Body was called in which he (Abdul Karim) was nominated as President of the Union, and co-accused Mohammad Fazil was selected as General Secretary. This caused annoyance to Miskin Khan. Miskin Khan was employee of Karachi Dock Yard and he was practising as a Lawyer simultaneously. On knowing these facts, Union had given him show-case notice with the result that he resigned from his service. These were the reasons of enmity between Miskin Khan and appellant himself. Miskin Khan was annoyed with him as he suspected that he was removed from the service at the instance of the accused/appellant. Samin Jan was his close friend and they used to reside together. Due to this he has been falsely implicated in this case. In fact, he was not present on the alleged day. After two/three days of the incident he went to his native place in District Mardan, there he clime to know that he has been involved in a murder case of Jamroz Khan. He came back at Karachi and applied for bail before arrest. He was granted interim bail but the same was not confirmed. In cross-examination he has stated that it is not a fact that there were differences between him and Jamroz Khan over groups of the Union. It was not correct that deceased Jamroz Khan was from different group of Union. It was incorrect to say that they wanted to remove Jamroz Khan from their Union. He has also denied all the suggestions made to him in respect of the prosecution case.
7. It will be worthwhile to mention here that the appellant was first tried before the Ist Additional Sessions Judge, South Karachi who convicted him on 4th February, 1987 under section 302/34, P.P.C. and sentenced him to life imprisonment, fine of Rs.2,000 in default R.I. for six months. He was also directed to pay compensation of Rs.10,000 and in default to suffer further R.I for two months. The appellant filed an appeal before this Court being Criminal Appeal No.14 of 1987 which was decided on 9-3-1987, by which the conviction and sentence of the appellant was set aside, and the matter was remanded back to the learned Sessions Judge, to re-call Mohammad Suleman Mirza Investigating Officer, and to provide an opportunity to the Advocate for the appellant to further cross-examine the witness with regard to the contradictions between the F.I.R., police statements, and the evidence given by the complainant and the witnesses at the trial.
8. The matter went back before the learned Sessions Judge who was pleased to recall the Investigating Officer and the learned counsel for the appellant was provided an opportunity to cross-examine the Investigating Officer. Thereafter the learned Sessions Judge was pleased to convict and sentence the appellant as described above. The present appeal is directed against the above judgment of conviction.
9. At the previous trial complainant Sami Jan P.W.1 had deposed that he knows Abdul Karim. He also knew co-accused Mohammad Fazil who was dead. Deceased Jamroz Khan was his brother who was working as labourer at Karachi Harbour 'Ship Cleaning Union Karachi. This incident took place on 6-5-1985. On that day at about 8-40 a.m. he was present at his Dera when P.W. Pervez came there in order to have meeting with deceased Jamroz Khan. Thereafter Hafeezur Rehman, Mutahir Shah and Mohammad Jan also came there and extended invitation to Jamroz Khan and Pervez for attending marriage of Hafizur Rehman. Thereafter they disclosed that they were going to Lal Mohammad Jamadar for inviting him. At about 9-30 a.m. some boys came and informed him that Fazil and Karim have shot dead Jamroz Khan. On receipt of such information he went to house of Lal Mohammad where he found dead body of his brother. P.W. Hafizur Rehman, Mutahir Shah, Mohammad Pervez and Mohammad Jan were also present there. They informed him that as soon as they knocked the door Lal Mohammad, Fazil came on bicycle and Abdul Karim came on motor-cycle KLC-8631. They also informed him that Karim accused asked accused Fazil to kill Jamroz Khan. Fazil accordingly fired on Jamroz Khan and shot dead to him. They further informed him that when they came to rescue and capture the accused, the accused fired at them and fled away. He then went and lodged report which has been produced as Exh.9. The motive alleged in the F.I.R. was that there were two groups of workers of Karachi Harbour Ship Cleaning Works, Fazil was General Secretary and Abdul Karim was Chairman of one Group, while Saifur Rehman was Chairman of other group. Abdul Karim and Fazil suspected that deceased Jamroz Khan was working in favour of Saifur Rehman. They also suspected that Jamroz Khan had brought Saifur Rehman as a candidate against Fazil and Karim. He has denied that Saifur Rehman was supporting his late brother Jamroz Khan. According to him the F.I.R. was recorded at the place of Wardat. It was the same which was produced as Exh.9. The contents 'of F.I.R. were correct. He had stated in the F.I.R. that his brother Jamroz Khan was supporting Saifur Rehman. It was not stated by him in the F.I.R. that Pervez also came at his Dera. Majid Colony was situated four furlongs away from his Dera. He has denied that he had not stated in the F.I.R. that Hafeezur Rehman told him that accused Abdul Karim asked Fazil to kill Jamroz Khan. Hafeezur Rehman, Mohammad Jan and Mutahir Shah were not residing in the locality where he was residing. He had stated before the police that he was told by the witnesses that as soon as they knocked the door of Lal Mohammad Jamadar accused reached there in the meantime. He could not give the names of the persons who-had collected at the spot. He has denied a suggestion that he was deposing falsely against accused Abdul Karim as he was supporter of opponent group of Saifur Rehman, and his late brother Jamroz Khan.
10. Mohammad Pervez P.W.2 has deposed that he knew the parties, Accused Abdul Karim was Chairman of Workers Union while Fazil was Secretary. This incident took place on 6-9-1985 at 9-30 a.m., while he was sitting with deceased Jamroz Khan at his Dera. Hafizur Rehman came to invite him and Jamroz Khan deceased. Thereafter they went to invite Lal Mohammad Jamadar. He, Jamroz Khan also accompanied them to Majeed Colony. They reached at the Dera of Lal Mohammad Jamadar and knocked his door, when in the meantime accused Abdul Karim and Fazil came there on Motor Cycle and Bicycle respectively. Abdul Karim asked Fazil to kill deceased Jamroz Khan telling him about Jamroz Khan. Fazil accordingly fired at Jamroz Khan. Abdul Karim took out pistol and fired 3/4 shots at them but they saved themselves while hiding behind the wall. The culprits made good their escape towards a street of Majeed Colony. Thereafter they went near Jamroz Khan who was dead by that time. They kept the dead body of deceased Jamroz Khan on cot. After some time complainant came there and they narrated the facts to him. The complainant went to report the matter to Police and brought Police at the Wardat. This incident took place because of two rival groups of the Workers Union. Because one group was represented by Abdul Karim and Fazil as President and General Secretary, while deceased Jamroz Khan was President of the other group of the Workers Union. In cross-examination he has deposed that he is concerned with Union of Abdul Karim. Deceased Jamroz Khan was concerned with Abdul Karim. Saifur Rehman, deceased Jamroz Khan, accused Abdul Karim and Fazil were knowing each other very well. It was stated by him before the Police that accused Abdul Karim had pointed deceased Jamroz Khan telling co-accused Fazil that he was Jamroz Khan and he should kill him. The place of incident was situated in open street which was surrounded by houses on both sides. He denied a suggestion that deceased Jamroz Khan was armed with a pistol. He denied that Jamroz Khan had fired at Abdul Karim and Fazil which passed through the ear of accused Abdul Karim. He admitted that Jamroz Khan has been murdered on account of two groups of Shipping Workers Union. Distance between Majeed Colony and Dera of Jamroz Khan was about one furlong. His statement was recorded by the Police at the Wardat on that very day. Police also recorded statements of Hafizur Rehman, Mutahir Shah and Mohammad Jan at the same time when his statement was recorded. Many persons had collected at the place of occurrence but he could not give their names. He denied that he was deposing at the instance of complainant.
11. Hafizur Rehman P.W.3, Mutahir Shah P.W.4 and Mohammad Jan P.W.5 are also eye-witnesses of the case and their evidence is identical to that of Mohammad Pervez P.W.2. It is case of P.W.3 Hafizur Rehman, that on 6-5-1985 he went to Mutahir Shah and Mohammad Jan at Keamari for inviting them on the occasion of his marriage. They were residing at Majeed Colony Usman Compound Keamari, he went there at 8-45 a.m. From there, he, alongwith Mutahir Shah, and Mohammad Jan went to the Dera of Sami Jan, for inviting Sami Jan, Jamroz and Pervez. Thereafter he, alongwith Mutahir Shah, Pervez and Mohammad Jan went to the Dera of Lal Mohammad for extending invitation. Mutahir Shah knocked the door of the house of Lal Mohammad. In the meanwhile Fazil and Karim came from opposite direction. Karim while pointing to the Jamroz Khan, told Fazil that he was the Jamroz who should be killed. Fazil accordingly fired with pistol at Jamroz Khan, who received bullet injury on the right side above the chest. They tried to catch hold of Fazil but Karim fired shots and therefore they took shelter behind the wall, thereafter both the culprits went away. It was further stated by Hafizur Rehman that police had prepared Mashirnama of Wardat and dead body in his presence, and he has produced the same as Exhs.12 and 13. According to him deceased Jamroz Khan was also working with the Union of Abdul Karim, Abdul Karim was President of one Union and Safu Khan was President of other Union. Abdul Karim was afraid because deceased Jamroz Khan had nominated Saifur Khan as opposite candidate due to which Jamroz Khan has been killed. He had admitted that Mutahir Shah, Mohammad Jan, deceased Jamroz Khan, Fazil and accused Abdul Karim were knowing each other very well. He had stated in his 161 Cr.P.C. statement that Abdul Karim instigated Fazil to kill Jamroz Khan. The evidence of P.W. Mutahir Shah was almost identical to that of P.W. Mohammad Pervez and Hafizur Rehman. He had also admitted in cross-examination that accused Fazil (deceased) was knowing deceased Jamroz 'Khan very well. He had stated before the Police that Karim pointed out to Jamroz Khan and asked Fazil to kill him. The evidence of Mohammad Jan P.W.5 was also identical to Hafizur Rehman almost in every respect. He had also stated in cross-examination that he had stated before the police that Karim pointed out to Jamroz Khan and informed Fazil that he was Jamroz Khan. He has admitted that Fazil was knowing Jamroz Khan.
12. Dr. Munawar Ahmad P.W.7 had conducted post-mortem on the deceased Jamroz Khan on 6-9-1985. On external examination he found the following injuries on the person of deceased:-
(1) Inlet wound, punctured wound 1/4" x 1/4" x skin muscle deep on back and medial aspect of right upper arm, upper one-third with outlet wound 1/4" x 1/4" into skin muscle deep on medial aspect of right upper arm in right axilla. This wound is through and through with inlet wound. The margin of inlet wound is charred and inverted.
(2) Inlet wound punctured 1/4" x 1/4" x cavity deep, in right axilla at the level of second and third rib. No outlet is found.
13. Note Brief:-
14. All above injuries were caused by one bullet. These injuries were anti-mortem, and duration of the injury and duration of death is 3 to 5 hours.
15. On external examination:-
(1) Head: As no injury is found on head, hence not opened.
(2) Thorax: Thorax cage intact. On opening of chest the right side of chest full of blood and left side of chest empty. The bullet entered in chest from right axilla at the level of second and third ribs pierced skin muscle and punctured upper-lobe of right lungs making the hole 1/4" x 1/4" and came out puncturing the middle lobe of right lung and puncturing pulmonary artery and right main bronchus. Lungs otherwise normal in size and pale. Heart normal side pale, empty. Coronaries are healthy and patent.
16. Abdomen Cavity:
17. Empty. Stomach contains semi-digested food material-mucosa pale. Small intestine contains semi-digested food-mucosal pale. Large Intestine empty, Mucosal, pale. Liver spleen, urinary blader are normal size and shape.
18. Spinal Cord: Not opened.
19. Cause of death : In my opinion the cause of death is irreversible shock and haemorrhages due to acute chest injuries sustained on his person as a result of violent discharge of a fire-arm.
20. Note Brief: (1) Clothes packed and sealed and handed over to Police constable Qutubuddin No.2793 with sample of seal.
(II) X-ray of skull, chest and abdomen taken which show no bullet in X-ray. Possibly bullet entered in main bronchus and coughed out. He issued such post-mortem report which has been produced as Exh.26.
21. After close of prosecution case the statement of the appellant was recorded under section 342 Cr.P.C. in which he denied the allegations and also examined himself under section 340 (2) Cr.P.C. The contents of his statement have been mentioned in the earlier part of this Judgment. On remand the case was sent back to the learned Sessions Judge Karachi (South) who examined the I.O. Mohammad Suleman himself, and after he was cross-examined, the side of .the prosecution was closed. The learned Judge while relying upon the above ocular evidence has convicted the appellant as described above.
22. It has been contended by Mr. Mohammad Hayat Junejo learned counsel appearing for the appellant that the initial case set up in the F. I. R. was that the appellant and the co-accused Fazil (since deceased) had fired at deceased Jamroz Khan, but later on the position was changed to bring it in line with medical evidence, and now the allegation against the appellant is of instigation. That the appellant was acquitted so far the charge under section 307 P.P.C. was concerned, and therefore the evidence of the same witnesses could not be relied upon against him without material corroboration. He has further contended that the evidence of the eye-witnesses shows that they were interested and inimical to the appellant, and therefore even on this score their evidence could not be relied upon for the purpose of conviction without corroboration. In support of his contentions the learned counsel has relied upon P L D 1985 SC 11.
23. Mr. Akhlaq Ahmed Siddiqui learned counsel appearing for the State has contended that there was evidence of 4 eye-witnesses who had fully implicated the appellant, and they had no enmity with the appellant to falsely implicate him. According to him the case against the appellant had been proved beyond reasonable doubt, and the appeal was liable to be dismissed.
24. I have considered the contentions of the learned counsel and have gone through the R & P of the case. It is an admitted position that the deceased Jamroz Khan, Hafizur Rehman, P.Ws. Mohammad Pervez, Mutahir Shah, and Mohammad Jan belonged to the same group of workers, and that there were two parties claiming to be the leaders of the Labour Union. On one hand the appellant Abdul Karim claimed to be President of the Workers Union and co-accused Fazil (deceased) claimed to be its Secretary, and they were being opposed by Saifur Rehman who claimed to be the President of the Workers Union. The F.I.R. shows that complainant had gone to lodge report after meeting the eye-witnesses and getting full facts from them. According to the F.I.R. both the accused had fired at the deceased with pistol or revolver due to which he fell down, and there was no allegation in the F.I.R. that present appellant Abdul Karim had instigated the co-accused to kill Jamroz Khan. Later on the story developed in the Court was that accused Abdul Karim had pointed out to co-accused, Fazil (deceased) that he was 13mroz Khan, and that he should be killed. This appears to be unnatural on the face of it. In view of the admitted position that both the accused knew the deceased, there was no need for Abdul Karim to point out Jamroz Khan to accused Fazil saying that he was Jamroz Khan. Even it was not the case of p any of the eye-witnesses in their 161, C.P.C. statements. The Investigating Officer Mohammad Suleman Mirza has stated in his cross-examination that complainant had not stated in his F.I.R. that Abdul Karim had instigated accused Fazil to kill Jamroz Khan. P.W. Pervez had not stated before him in 161 Cr.P.C. statement that Abdul Karim had pointed Jamroz Khan to Fazil. The witness further stated that Abdul Karim told Fazil to kill Jamroz Khan. P.W. Hafizur Rehman had not statue before him in his 161 Cr.P.C. statement that Abdul Karim had pointed out deceased Jamroz Khan to co-accused Fazil. The witness stated that witness had stated before him that Abdul Karim instigated accused Fazil to kill Jamroz Khan. Same was the evidence of P.W. Mutahir Shah and P.W. Mohammad Jan. According to Investigating Officer P.W. Mohammad Jan had stated before him that Fazil had fired with revolver or pistol at his brother Jamroz Khan.
25. From the above admission made by the Investigating Officer it is clear that the witnesses had no respect for truth. Moreover the motive advanced by the prosecution was not such which could prompt the appellant and co-accused .to kill Jamroz Khan. If at all they wanted to kill any body it was Saifur Rehman who was directly opposing them. The place of incident was situated at a sufficient distance from the house of deceased Jamroz Khan, and the accused appellant could not anticipate that the deceased will be available at the Dera of Jamadar Shafiq. Moreover the witnesses have been disbelieved with regard the evidence of firing at them, and the appellant has been acquitted as far as the offence under section 307, P.P.C. was concerned. In Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC 11 it was held that:-
26. "Where witness is interested and also inimical and is thus likely to falsely implicate one or other accused, it was essential to seek independent corroboration regarding each one of the other accused.
27. It was further observed in the above decision that:
28. "When a witness has been found false with regard to implication of one accused about whose participation he had deposed on oath, the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken.
29. In view of the above discussion I am of the clear view that looking to the facts and circumstances of the case the ocular evidence could not be relied upon without independent corroboration which was lacking in the present case. Therefore, I allow this appeal, set aside the conviction and sentence of the appellant, and acquit him. He shall be released forthwith if not required in any other case.
30. M.Y.H./A-273/K ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.