RASOOL BUX AND 3 OTHERS Versus THE STATE

1. The appellants were charged and tried u/ss 302,307, 148 and 149, P.P.C, before the learned Sessions Judge Thatta, who has convicted the present appellant Rasool Bux under section 302, P.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000 or in default of payment of fine to suffer further R.I. for six months. He has further ordered to pay a sum of Rs.5,000 to the heirs of the deceased as compensation a/s 54, Cr.P.C. or in default of payment or its recovery to undergo further R.I. for one year. The appellant Ali Murad was convicted a/s 325, P.P.C. and sentenced to undergo R.I. for one year and fine of Rs.500 and also compensation of Rs.500 in default to undergo R.I. for six months on each count. Appellant Qadir Bux was convicted under section 324 P.P.C. and sentenced to imprisonment already undergone and to pay fine of Rs.5,000 and pay compensation of Rs.500 to P.W. Ramzan or in default in payment to undergo R.I. for six months on each count, Karim Bux a/s 323 PPC and sentenced to imprisonment already undergone and to pay fine of Rs.400 and compensation of Rs.400 to P.W. Usman or in default to undergo four months on each count, while co‑accused were acquitted vide judgment dated 29‑10‑1986.

2. The brief facts giving rise to the present appeal are that on 18‑6‑1983, one Manathar s/o Mitho lodged a report at P.S. Mirpur Bhathoro, District Thatta, which reads as under:

3. "I own 10 acres of land in Deh Dhandhi which I cultivate myself. Adjacent to our houses there is the land of Rasool Bux Zaur and Fateh Muhammad Zaur, which they cultivate from the "Remokal" (unauthorized) watercourse. Earlier, I and the Nekmards of our village had asked them not to flow that water as our houses were being flooded due to flowing of the "Remokal" water by them to cultivate their land. I have also made an application to the SDO Irrigation Daro with regard to their "Remokal" flowing of watercourse. Today, in the evening I closed down the "remokal" watercourse which runs along our village and was taking meals etc. when, at about 8‑00 p.m. Usman son of Ali Mohomed Zaur called me. I went outside and saw standing there Rasool Bux son of Usman armed with hatchet, Karim Bux son of Usman armed with hatchet, Ali Murad son of Usman armed with Lathi, Qadir Bux alias Qadoo son of sman armed with hatchet, Usman son of Ali Mohomed empty‑handed, and Khuda Bux son of Ghulam Mohomed empty handed, and Mamoo son of Khuda Bux, they asked me to call Mohomed Moosa, Ramzan and Shadi so that they would have a talk. I called them. They came out whereupon Mamoon son of Khuda Bux instigated others not to spare them saying they have closed our water. Thereupon Rasool Bux gave blow with sharp side of hatchet to Mohomed Moosa on the back and Ali Murad gave him Lathi blow on his right arm on receipt of blows he immediately fell down; Karim Bux gave sharp side hatchet blow to Ramzan. Qadir Bux gave sharp side hatchet blow on the head of Ramzan who fell down, Fateh Mohomed and Nooro gave blows with their hatchest to Shadi who `A mmediately fell down and bled. I raised cries. On the cries Nooro son of Shadoo, Laloo son of Naban,. Arab son of Wali Mohomed, all by caste Zaurs, came running. On seeing them the accused went away towards their houses. The witnesses saw the injured. Injured Mohomed Moosa, Shadi and Ramzan were lying unconscious us on the ground 4andWwere were bleeding from their injuries. Usman was wounded, but he was in senses. He narrated the incident to the witnesses. Thereafter I have got carried the injured and I report that the above accused duly armed with Lathis and hatchets, with common intention to kill Mohomed Moosa have committed roit and have tried to kill Mohomed Moosa and others".

4. The F.I.R. was recorded by S.H.O. Sawan Khan, P.W. 8 and the same has been produced as Ex.14. He then prepared Mashirnama of injuries on the person of P.W. Mohomed Moosa, (deceased) Mohomed Usman, Ramzan and Shadi, in presence of Mashirs Ali Hasan, and Abdullah, Mashirnamas have been produced as Exs.38 to 41. He then referred all the injured to M.O. Mirpur Bathoro for examination, treatment and certificate. The clothes of injured were produced before SHO by PC Ali Hasan which he secured under Mashirnama, which has been produced as Ex.42. On 19‑6‑1983, he examined injured, and P.Ws. Usman, Arab, Laloo and Nooro. He then went to the place of incident which was shown to him by Mashirs Ali Hasan and Ibrahim, and prepared such Mashirnama which has been produced as Ex.43. Accused Fateh Mohomed, Karim Bux, Kadir Bux alias Kadoo, Ali Murad, Noor Mohomed, Mamoon and Usman were produced before him by their Nekmard Aroo. He arrested them under Mashirnama which was produced as Ex.44. After their arrest, accused Fateh Mohomed, Karim Bux, Qadir Bux and Noor Mohd, produced hatchets before him which he secured. Accused Ali Murad produced one Lathi from his house, he secured these weapons and prepared such Mashirnama in presence of same Mashirs and the Mashirnama was produced as Ex.45. On 26‑6‑1983 he examined injured Mohomed Moosa in L.M.C. Hospital, Hyderabad. On 3‑7‑1983 he examined P.Ws. Shadi, Ramzan, Laloo, Arab and Usman. On the same day he got the statements of above witnesses recorded under section 164, Cr.P.C. on that day he arrested Rasool Bux from his village in presence of Mashirs Ali Hasan and Abdullah, prepared such Mashirnama which was produced as Ex.

46. Accused Rasool Bux produced blood‑stained hatchet from his house which was secured by him and the Mashirnama was produced as Ex.47. On 4‑7‑1983 he challaned the accused. On 9‑10‑1983. Injured Moosa expired in the hospital and, therefore, the case was converted into one under section 302 PPC on 22‑10‑1983. He had sent blood‑stained articles to the chemical examiner, and the report of chemical examiner was produced as Ex.50.

5. A formal charge was framed against the appellant and the co‑accused but they pleaded not guilty.

6. At the trial, the prosecution examied complainant Manathar, P.W.1, he has produced the FIR as Ex.14. Shadi, injured eye‑witness P.W. 2, he has produced 164 Cr.P.C. statement as Ex.16, Usman eye‑witness P.W,3, Noor Mohomed PW, he had come on cries at the place of incident and found the injured P.Ws and deceased lying injured at the Wardat. He had also found the accused duly armed with hatchets and Lathi' going away from Wardat. Dr. Mohomed Ayob P.W 5, he had examined injured deceased Mohomed Moosa, and had produced the medical certificate including final certificate as Exs.21 and Ex.22. He had also produced complete chart including X‑ray report as Ex.23. He had also examined injured Usman and has produced initial certificate as well as final certificate as Exs.24 and 25. He had also examined injured Mohomed Ramzan and Shadi and has produced the medical certificate as Exs.27, 28, 29, 30, 31, and 32. The injured Ramzan PW6 an eye‑witness, Mashir Ali Hasan P.W.7, he had acted as mashir of injuries on Mohomed Ramzan, Usman, Shadi and Moosa, and such Mashirnamas were prepared in his presence, which have been produced as Exs.38 to 41. Constable Ali Asghar had produced blood‑stained clothes of injured persons (P.Ws) before the Incharge Police. The clothes were secured by the police in the presence of Mashirs which has been produced as Ex.42. He was also made as Mashir of Wardat and such Mashirnama has been produced as Ex.43. Tie seven accused were arrested in his presence under the Mashirnama which he has produced as Ex.44. Accused fateh Mohomed, Kadir Bux, Noor Mohomed, Karim Bux produced hatchets before the police while Ali Murad produced Lathi. Such Mashirnama were prepared in his presence and the same has been produced as Ex.45. After 12/13 days, accused Rasool Bux was arrested in his presence and such Mashirnama was prepared and the same was produced as Ex.46. Accused led the police to his house and produced blood‑stained hatchets from cornbin of his house, police prepared such Mashirnama and the same has been produced as Ex.47. Sawan Khan S.H.O., P.W8, had recorded the F.I.R. and carried on the investigation as already mentioned. He has produced the chemical report as Ex.50.

7. Dr. Mohammad Ayub P.W. 5 has deposed that on 18‑6‑1983 he was Medical Officer, Taluka Hospital, Mirpur Bathoro, when he received injured Mohomed Moosa for examination, treatment and certificate from Police Mirpur Bhathoro. He examined the injuries at 10‑00 p.m. and found the following injuries on his person:‑

(1) Incised wound 15 c.m. x 4 c.m. x viseral deep on the back left side below scapula. The underlying bone was cut. Air was coming out of the wound with respiration. The plura was also found cut.

(2) Contusion 8 c.m. x 4 c.m. on the back of right fore‑arm above wrist. The injured was semi‑conscious. He was not replying questions properly because of semi‑consciousness at the time of examination.

8. The injury No. l appeared to have been caused by sharp‑cutting weapon while injury No.2 by blunt substance such as lathi or back side of the hatchet. The age of injuries was about 2 hours. The injury No.1 was dangerous to life while injury No.2 was kept reserved for X‑ray. The injured was referred to Liaquat Medical Hospital Hyderabad for further treatment. He issued such certificate which was produced as Ex.21. He received the X‑ray and the complete chart of injured Mohomed Moosa on 8‑10‑1983. According to which Mohomed Moosa died on 25‑8‑1983. Because of hepatitis failure due to texic hepatitis secondary to sepsis. The nature of injury No.2 was also determined to be grievous as there was fracture of right ulna bone. He issued such final certificate which was produced as Ex.22. He also produced the complete chart including X‑ray report as Ex.23. Since the patient remained under treatment at Liaquat Hospital Hyderabad for about two months and the cause of the death was apparent therefore no post‑mortem was performed over the dead body. The chart had been maintained by Dr. Zahid Hussain Shah Registrar Surgical Unit No.1 Liaquat Hospital, Jamshoro, who had according to the record treated the deceased.

9. On the same day i.e. 17‑6‑1983 he had also received injured Usman son of Mohammad, injured Mohammad Ramzan, and Shadi for examination, treatment, and certificate. He examined the injured and found the following injuries:

U S M A N

(1) A contused wound 2 c.m. x 1 c.m. x scalp deep on the head right side occipito temporal region.

10. The nature of injury was kept reserved for want of X‑ray and it appeared to have been caused by blunt weapon. The age of injury at the time of examination was two hours old. He produced the certificate as Ex.24. He received the X‑ray report from Civil Hospital Thatta as the patient was referred there. No fracture was detected in X‑ray and as such the nature of injury was determined to be simple. He also issued final certificate on the basis of report of Radiologist which he produced as Exh. 26.

MUHAMMAD RAMZAN

(1) Incised wound 7 c.m. x 1 c.m. x scalp deep on the right side of head occipito temporal region.

11. The injury appeared to have been caused by sharp‑cutting weapon such as hatchet, and the nature of injury was kept reserved. The patient was referred to Civil Hospital, Thatta for X‑Ray. He has produced the certificate as Exh.

27. He received the X‑Ray and the report of Radiologist, according to which no fracture was detected as such the injury was declared as simple in nature, and he produced final certificate issued by him as Exh.

28. He also produced X‑Ray plate along with report as Exh.

29. The injured was referred to Talukg Hospital Mirpur Bathoro where he had treated him for about a week and he was discharged fully cured. Usman was also discharged likewise after treating him for a week.

SHADI

(1) Contused wound 6 c.m. x 1 c.m. x bone deep on the right side of the head, frontal region. It extended upto the lateral side of right eyebrow.

12. The injury appeared to have been caused by blunt weapon such as Lathi or back side of hatchet. The injury was reserved for X‑ray report and injured was referred to Civil Hospital, Thatta. He issued such certificate which he produced as Exh.

30. The age of injury was about 2‑00 to 3‑00 hours. He received the X‑Ray plate alongwith report of the Radiologist and Eye Specialist which were produced as Exhs. 31 and 32 according to which no fracture was detected, and injury was determined to be simple in nature. As such he issued necessary final certificate which he produced as Exh. 33.

13. Dr. Abdul Ghani Siddiqui Professor of Surgery Liaquat Medical College, Hyderabad was examined as Court witness. He has deposed that injured Mohomed Moosa was referred to L.M.C.H. Hyderabad by Medical Officer Taluka Hospital Mirpur Bathoro, he was in Surgical emergency Unit No. 1 later on. He was shifted to Jam Shoro on 25‑6‑1983 in the private ward. Due to financial difficulties he was discharged from private Ward on 9‑7‑1983, and was re‑admitted in the General Ward on the same day. He had attended Mohomed Moosa in the private as well as General Ward. He had hatchet injury on the back of his chest and on the vertibral column leading to pneumothorex i.e. entering of the air into chest cavity. The patient suffered paralyses of the left leg due to the said injury which was grievous and dangerous in nature and was caused by sharp cutting weapon such as hatchet. The injured was treated and operated in his Unit under his supervision. As a result of the above injury and sepsis the injured developed severe jaundice leading to hepatic failure and injured Moosa died at 7‑20 p.m. on 25‑8‑1983. He was on vacation when the injured died, but he was fully conversant that the injury received by him and the treatment given to him. Dr. Zahid Shah was Registrar he used to look after the injured and prepared the record of the treatment. He had issued the death report giving cause of death of injured as hepatic failure, report Exh. 23/30 bears signature of Dr. Zahid Shah and he was conversant with his handwriting and signature. Dr. Zahid Shah was not in Pakistan, Exh. 23/1 was a letter written by him to the Medical Superintendent giving the cause of death of deceased Moosa, it bears his signature. In his opinion the death of deceased was caused by injury received by him and the sepsis and hepatic failure were secondary to the said injury. He operated injured Mohomed Moosa on 30‑6‑1983. In cross‑examination he has deposed that the record Exh. 23/30 shows that injured had developed the signs of hepatic failure on 24‑8‑1983. Usually jaundice develops 10/15 days prior to hepatic failure. He denied a suggestion that injury received by deceased could not cause death. He denied the suggestion that the toxic hepatic was the primary cause of death of deceased, and the injury received by the deceased was secondary cause of death. Looking to the injuries of the deceased in his opinion the chances of survival of the injured were meagre.

14. After close of the prosecution case, the statements of accused were recorded under section 342, Cr.P.C. in which they denied the allegations. It was further stated by the appellant Rasool Bux that about 8/10 years prior to the incident the complainant party had murdered his cousin Ghulam Mohomed in which Ramzan. Mohomed and Shadi were accused. His cousin Panno had purchased the land of Abdul Rasooi but he did not execute the document. After purchase of the said land Panno gave it on harap to Mitho, Manthar and Ibrahim. Abdul Rasool did not change the Khata, and Mitho and Ibrahim did not account for harap share of Panno. He has produced the sale deed and agreement of harap as Exhs. 53 and 54 respectively. Abdul Rasool had also sold his land to his uncle Fateh Mohomed but he did not change the Khata and land remained in his own possession. He has produced the agreement as Exh.

55. The complainant party had fought amongst themselves on matrimonial affairs and after the fight they went to their Nekmard who brought about settlement between them, and instead of implicating the real culprits, they have falsely implicated entire family of the accused. P.Ws were accused in the murder case of Ghulam Mohammad. There is no watercourse but there was one Bhadha (abondoned watercourse) which has been lying closed for the last 15/20 years. He has produced a certificate issued by the Assistant Engineer DARO Sub‑Division as Exh.

56. All the witnesses were interested and interrelated. He did not examine any witness in his defence.

15. However, all the accused examined themselves on oath as envisaged by the section 340(2) Cr.P.C. Learned trial judge while relying upon the ocular evidence mentioned above, convicted the present appellants as described above, while the co‑accused were acquitted. The present appeal is directed against the said judgment of conviction.

16. I have heard Mr. Aftab Ahmed Akhund, learned advocate appearing for the appellants, Mr. Imam Bux Shaikh, learned counsel appearing for the State, and have also gone through the R & P of the case.

17. It was contended by Mr. Aftab Ahmed Akhund learned counsel appearing for the appellants that the F.I.R. is suspected document and it was not promptly lodged as is alleged by the prosecution. That the complainant Manthar was not present at the Wardat which is clear from the fact that he did not receive any injury although he was the person who had closed the watercourse, and therefore he would not have been spared by the accused. That the ocular evidence given by complainant is contrary to the medical evidence with the result that two of the accused were let off by the police, while three of the accused were acquitted by the trial Court. That there were serious contradictions in the evidence of the prosecution witnesses which clearly show that they were not the witnesses of truth. Lastly, it was contended that three co‑accused having been acquitted by the trial Court, the present appellants could not be convicted on the same evidence unless there was some strong corroboration. That the witnesses were interrelated and as such interested.

18. Mr. Imam Bux Shaikh, learned counsel appearing for the State has contended that there was no delay in the F.I.R. and the presence of complainant was natural. That accused Rasool Bux was mainly responsible for causing death of deceased and there is nothing wrong with the judgment of the trial Court and he has supported the judgment of conviction of the trial Court.

19. I have considered the contentions of the learned counsel. The F.I.R. shows that the incident took place on 1 8‑‑6‑1983, at 8‑00 p.m. and the report was lodged on 8‑45 p.m. The distance between the place of Wardat and the police station was only 1 miles. According to the complainant‑Manathar he had gone to Mirpur Bhatoro, brought Datsun Car and took the injured in the same to Mirpur Bhatoro. No suggestion was put to this witness that he could not have done all this within 45 minutes and that the F.I.R. was not lodged promptly as is shown in the F . I . R .

20. The complainant Manathar has fully supported the contents of his F.I.R. P.Ws. Shadi, Usman and Ramzan are injured witnesses and their evidence is further corroborated by P.W. Noor Mohomed.

21. So far as the next contention of Mr. Aftab Ahmed Akhund, is concerned, there are no circumstances to show that the complainant was not present at 'the time of incident. His evidence is supported by as many as four witnesses, namely, Shadi, Usman, Ramzan and Noor Muhammad and all of them have clearly deposed that the complaint was present at the time of incident. Even the fact that the F.I.R. was lodged promptly goes a long way to show that the complainant was present at the time of incident. Merely, because, the complainant did not receive any injury in the fight will not throw any doubt on his claim to have been present at the place of incident. Therefore, I am of the clear view that the complainant was present at the time of Wardat.

22. As regards the third contention of the learned counsel appearing for the appellants that the evidence of complainant and injured witnesses is contradictory and that since two of the accused were let off by the police, and three were acquitted by the trial Court cannot be relied upon. It may be stated here that the F.I.R. shows that accused Usman son of Ali Muhammad and Khuda Bux son of Ghulam Mohomed were empty‑handed and no part was assigned to them in the fight and, therefore, the Investigating Officer found it proper to leave these two accused. Even there was no allegation against them that they caused any injury to any of the person. As far as the acquittal of co‑accused Mamon, Fateh Muhammad and Noor Muhammad they were given benefit of doubt in view of the discrepancies in the evidence of prosecution witnesses. The allegation against accused Mamoon was that of instigation only. But it was not held by the trial Court that the evidence of the complainant and P.Ws. was false, and therefore, the evidence cannot be rejected outright. In the present case, the appellants had two‑fold motives to attack the complainant party, firstly, that Ghulam Muhammad cousin of accused Rasool Bux was murdered about 8/10 years back as alleged by the appellant Rasool Bux and in that case P.Ws. Shadi, Ramzan and Mohammad were accused, secondly, the appellants were taking water through unauthorised watercourse which was situated adjacent to the house of the complainant party which the complainant party had closed on the preceding day. The certificate issued by Assistant Engineer Daro Sub‑Division Exh. 56, has no evidentiary value inasmuch as the Assistant Engineer himself was not examined in defence and the certificate only shows that the Survey Nos. 45 and 46 of Deh Dandi were settled on watercourse No. 3‑L, and according to this certificate, old Bhada of Survey No. 12, Ghari canal is closed for last 15/20 years. This supports the version of the complainant party inasmuch as, according to them the accused used to take water through this unauthorised Bhada "disused canal". The Mashirnama of Wardat shows that the place of wardat was near the street of the house of the complainant and on the west of unauthorised watercourse. Therefore, it was the accused who had motive to attack the complainant party.

23. Admittedly, deceased Mooso was the cousin of complainant, P.W. Usman is brother of deceased Mooso, P.W. Shadi is son of P.W. Ramzan. It was also admitted by the complainant that Ramzan and Mooso deceased were related inter se. The P.Ws. are no doubt related inter se except P.W. Nooro, but they had no motive to implicate the present appellants falsely, because the grievance, if any, was on the side of the accused. P.W. Nooro was not related to the deceased. Apart from the fact, that P.Ws. Ramzan, Shadi, and Usman are injured witnesses and their presence at the Wardat could not be disputed, they are corroborated by complainant Manthar, and P. W. D Nooro who was an independent person and had no relationship with the complainant party, nor he had any enmity with the accused. The P.Ws. are further supported by the evidence of motive. There were also recoveries from the appellants but the learned trial Judge has discarded the same, and for cogent reasons. The contradictions which have been pointed out by the learned counsel for the appellants are minor in nature and do not affect the veracity of the evidence of P.Ws. The incident had taken place during the night and it was possible for the witnesses to commit error regarding the side of weapon used and the number of injuries caused to them. Moreover, their evidence was recorded nearly three years after the incident, and therefore, the minor contradictions were natural and do not affect their evidence. In view of the above discussion, I am of the considered view that the ocular evidence was natural, reliable, and was corroborated by P.W. Noor Mohomed who was an independent person, as well as the evidence of motive.

24. However, in view of the observations of the learned trial Judge that:‑‑----

25. "It was doubtful, if accused persons had formed unlawful assembly and had caused injuries to the complainant party in which Mohomed Moosa was murdered in the prosecution of the common object of the unlawful assembly. He has further held that the accused persons had gone armed to the place of incident near the house of the complainant and the absence of injuries of any kind, on the person of any of the accused party shows that the complainant was taken unawares, but looking to the single blow dealt by each of the four accused, namely, Rasool Bux, Ali Murad, Karim Bux and Kadir Bux it will be difficult to show that they had common intention to cause death of any of the complainant party."

26. It was to be seen as to what offence, if any was committed by the appellants.

27. I have given my anxious consideration to the question as to what offence was committed by the appellants in view of the above discussion of the learned trial Judge, I am of the considered view that the appellant Rasool Bux could be saddled with the knowledge that the injury he was going to cause to Moosa was likely to cause death of deceased Moosa, and therefore, he will be liable under section 304 Part II, P.P.C. For this conclusion, the reasons are:‑‑

(1) The observations of the learned trial Judge, that there was no common object to kill any member of the complainant party.

(2) The appellant Rasool Bux and Ali Murad caused one injury each to deceased Mohomed Moosa and they did not repeat the attack.

(3) The deceased died after about 2 months, and that he had also developed severe jaundice leading to hepatic failure.

28. In view of the above discussion, I alter the conviction of appellant Rasool Bux from 302, P.P.C. to section 304 Part II, P.P.C. and sentence him to suffer R.I. for seven years, the sentence of fine and compensation are hereby maintained. He is entitled to benefit of provisions of section 382‑B, Cr.P.C. So far as the appellants Ali Murad, Qadir Bux and Karim Bux are concerned, the case against them has been proved beyond reasonable doubt and they have been rightly convicted, and the judgment of the learned trial Judge does not call for interference by this Court. Their appeal is accordingly dismissed. With the above modification, the appeal is hereby dismissed.

29. S.A./R‑36/K Appeal dismissed.