IN THE HIGH COURT OF SINDH CIRCUIT COURT, LARKANA.
Cr. Appeal No. S- 68 of 2007.
J U D G M E N T.
Appellant Moula Bux Patojo and others through Mr. Habibullah G. Ghouri, Advocate.
Respondent The State through Mr. Shahzado Saleem, A.P.G.
Date of hearing: 09.09.2015.
Date of judgment: 09.09.2015.
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SALAHUDDIN PANHWAR,J.:-Through instant appeal, appellants Moula Bux, Saindad and Ahmed Ali have assailed judgment dated 06.09.2007 passed by Additional Sessions Judge-III, Dadu in Sessions Case No.353 of 2004 (State v. Moula Bux and others) whereby appellants were convicted on three counts and sentenced as under:
i. U/S 148 r/w Sec: 149 PPC.
All the present accused shall suffer R.I for one year and fine of Rs.1000/= each, in default of payment of fine, the accused shall suffer more R.I for 3 months.
ii. U/S 324 r/w Sec: 149 PPC.
All the present accused are sentenced to suffer R.I for ten years and fine of Rs.5000/= each, in default of payment of fine, the accused shall suffer more R.I for 3 months. In addition to such imprisonment the accused are also convicted and sentenced for causing hurt to injured name above to pay Daman to the tune of Rs.22000/= to each of 11 victim/injured in equal shares. Besides the accused shall suffer R.I for 2 years.
iii. U/S 302(b) r/w Sec: 149 PPC.
All the present accused are convicted and sentenced to suffer R.I for life. Besides a fine of Rs.100,000/= (one lac) is imposed upon each accused. Out of which 50% shall be payable to the legal heirs of the deceased, if recovered. In case of default of payment of fine, each accused shall suffer R.I for six months.
2. Precisely the relevant facts are that on 27.06.2004 Haji Manzoor lodged FIR with P.S Faridabad, stating therein that enmity is existing between complainant and Moula Bux’s party over a plot and thus they were not on talking terms with each other. On the said plot trees (laee) were planted. On the eventful day at about 3.00 p.m, a heavy storm flared up, resultantly trees fallen down; Moula Bux and Ghulam Ali were removing the same, complainant’s cousin Ali Muhammad prevented them. Hence altercation between cousin of the complainant and accused Ghulam Abbas and Moula Bux was taken place. In the meantime accused Jaffar ran towards his house and brought gun, while Moula Bux hatchet and Ghulam Abbas also a gun. On commotion, P.Ws Ahmed and Ghulam Abbas came out from their houses. Within their sight, accused Moula Bux caused hatchet blow to Ali Muhammad with intention to commit his murder on his neck, who tried to catch accused and in the meantime accused Jaffar fired at Ali Muhammad, who on sustaining fire arm injuries fell down by raising cries and died on the spot. Thereafter accused Jaffar, Saindad and Ahmed Ali climbed over the morcha of their otaque, while accused Ghulam Abbas, Hakim Ali and Ameer Ali took positions in a distry, infront of their house. Commotion and firing also attracted P.Ws Ghulam Abbas, Sajjan, Mohammad Ilyas, Muhammad Uris, Jaffar, Ahmed Ali, Ameer Ali, Buxial, Gul Sher, Farooque and Sardar while accused Ghulam Abbas fired from his gun, which hit to Buxial and Gul Sher, who fell down by raising cries, accused Hakim Ali, Ameer Ali also fired, which hit Ghulam Abbas, Sajjan, Muhammad Ilyas, who on sustaining fire arm injuries fell down; accused Jaffar, Saindad, Ahmed Ali fired from morcha upon relatives of complainant, which hit to P.Ws Muhammad Uris, Jaffar, Ahmed Ali, Ameer Ali, Farooque and Sardar, who were also fell down by raising cries. Commotion and firing also attracted co-villagers and on their arrival firing was stopped. Subsequently, the injured were shifted to Taluka hospital Mehar. Complainant appeared at P.S and registered the case.
3. It is further revealed that after receipt of FIR the investigation officer visited venue of incident, inspected dead body, collected blood stained earth and five empty cartridges from venue of incident, sealed the same, prepared inquest report, sent the dead body for post mortem through P.C Shabir Shah, issued letter to Medical Officer for conducting post mortem, sent the blood stained earth for chemical analysis, visited all injured at CMCH Larkana, prepared memos of injuries, recorded their statements, prepared memo of last wearing clothes of deceased, issued letter to Mukhtiarkar Mehar for preparation of sketches of venue of incident, received post mortem report and medical certificates of injured. On 13.07.2004 he arrested accused Moula Bux, recovered hatchet from him allegedly used in commission of offence and sent the same for chemical analysis. On 25.07.2004, he arrested accused Saindad and Ahmed Ali, effected recovery of unlicensed SBBL gun from accused Saindad, sent the same for Ballistic expert opinion alongwith empty cartridges recovered from venue of incident. He also obtained post mortem report, medical certificates and chemical, as well as ballistic expert reports. After usual investigation submitted charge sheet by showing accused Moula Bux, Saindad and Ahmed Ali under custody and accused Jaffar, Ghulam Abbas, Hakim Ali and Ameer Ali as absconding.
4. Formal charge against the accused was framed on 02.07.2005 for offence punishable U/S 302, 324, 147, 148, 149 at Ex.5. The pleas of accused were recorded as Ex.5-A to 5-C, to which they pleaded not guilty and claimed for trial.
5. At the trial prosecution examined complainant Haji Manzoor as Ex.6, who produced FIR as Ex.6-A, injured Ahmed Ali as Ex.7, injured Abbas as Ex.9, injured Buxial as Ex.10, injured Ghulam Farooque as Ex.11, injured Ameer Ali as Ex.12, injured Muhammad Uris as Ex.13, injured Sajjan as Ex.14, DDA submitted application for joining P.W/injured Sardar in evidence, which was allowed as Ex.15, injured Sardar was examined as Ex.16, injured Muhammad Ilyas as Ex.17, I.O Abdul Razzaque as Ex.18, who produced memo of place of incident as Ex.18-A, inquest report as Ex.18-B, chemical report as Ex.18-C, letter issued to MLO Taluka Hospital Mehar as Ex.18-D, memos of injuries of injured as Ex.18-E to 18-O, letter to Taluka Hospital Mehar for conduction of post mortem as Ex.18-P, memo of last wearing clothes as Ex.18-Q, letter issued to Mukhtiarkar for preparation of sketches of place of incident as Ex.18-R, post mortem report of deceased Ali Muhammad as Ex.18-S, Medical certificate of injured as Ex.18/T-1 to 18/T-11, memo of arrest of accused Moula Bux as Ex.18-U, memo of recovery of hatchet as Ex.18-V, memo of recovery as Ex.18-X, ballistic expert report as Ex.18-Y, final medical certificate of the injured as Ex.18/Z-1 to 18/Z-11, mashir Sirajuddin as Ex.19, who produced receipt of receiving dead body of deceased as Ex.19-A, Dr. Muhammad Umer as Ex.20, who produced letter No.33/2004 issued by I/C SIP Faridabad as Ex.20-A, I.O Mumtaz Ali as Ex.21, Dr.Santosh Kumar as Ex.22, who produced corrigendum as Ex.22-A, final medical certificates of injured as Ex.22-B to 22-L, DDA gave up P.W Gul Sher vide statement as Ex.23, co-mashir Munir Ahmed as Ex.24, Tapedar Wazir Ahmed as Ex.25, who produced three copies of sketches as Ex.25-A to 25-C and then prosecution closed its side vide statement as Ex.26.
6. The statements of accused were recorded U/S 342 Cr.P.C as Ex.27 to 29, wherein they denied the allegations leveled by the prosecution and stated that all the P.Ws are interested, set up and hostile, hence they have falsely deposed against them. Accused Moula Bux and Saindad also contended that the alleged recoveries were foisted upon them by the police at the instance of the complainant party; accused Saindad narrated that he has been acquitted in off shoot case U/S 13(d) A.O and produced memo of judgment dated 16.05.2006. They further stated that they are innocents and prayed for justice. However, they did not examine themselves on oath; in their defence they examined Dr.Muhammad Umer, who produced letter No.1818 dated 26.06.2004 issued by ASI P.S Mehar, provisional medical certificate as Ex.30-B and final Medical Certificate as Ex.30-C in favour of accused Moula Bux and then learned defence counsel close its side as Ex.31.
7. It is further surfaced that during pendency of appeal, Moula Bux father of the appellant No.2 and 3 passed away in jail custody such report was called hence proceedings against him were abated.
8. At the outset, learned counsel for the appellant contends that except allegation of injuries to the witnesses by appellant no active role is assigned by the witnesses; according to prosecution accused persons were at the distance of 100 feet from the crime scene where from they caused gunshot injuries which hit to the injured witnesses. Such injuries are not grave in nature; it is fact that complainant party attacked upon father of appellants whereby he received severe injuries on his head; prosecution case is doubtful; section 34 PPC is not applicable against the appellants; at the most this a case of sudden flare up; appellants are in jail since 10 years therefore, they may be acquitted.
9. Learned APG contended that section 302 is not applicable against appellants hence their sentence may be reduced in other sections and on account of murder they may be acquitted.
10. Heard and perused the record. It is matter of record that during this crime incident father of appellant sustained head which was never disclosed by the prosecution while setting its case up hence prima facie it can be safely said that the prosecution never came up with whole truth. Since all three appellants, including deceased Moula Bux) were awarded conviction by the learned trial Court judge while holding the Section 149 PPC applicable in the matter. Thus, I feel it quite justified to examine the application of the Section 149 of the PPC. To hold the section 149 PPC applicable the Court must satisfy itself that:
i) there had been an unlawful assembly in furtherance of common object:
Or
ii) every member of such unlawful assembly must know the likely object of the assembly;
I would like to take advantage of the case of ‘Muhammad Altaf vs. State’ (2002 SCMR 189) wherein it was held that:
“9. In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149 P.P.C, and its application to the facts of the case. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained. In this case the motive which allegedly prompted the accused to launch their attack was a dispute between the deceased Ghulam Murtaza and P.W Asghar Ali on one hand and accused Mujahid Nawaz on the other over the pigeons. ……………………….
The word ‘knew’ occurring in the second part of section 149 PPC requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this background it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grand-father, their son and their grandson would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149 PPC cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack.”
(underlining is supplied for emphasis)
Reverting to merits of the case, the bare perusal of the prosecution story makes it clear that prosecution never claimed the incident to be pre-planned or after thought rather it is evident that incident was a sudden flare due to altercation between deceased and accused Moula Bux and accused Ghulam Abbas who (said accused) were allegedly taking Laee trees. Both the present appellants were undisputedly not available at such time. To make myself clear a reference to the relevant portions from evidence of the alleged eye-witnesses, being relevant, is made hereunder:-
Complainant Haji Manzoor:
“I am complainant of the case. I owned….On 26.6.2004 at about 3.00 p.m a storm arose and resultantly many Laee trees fallen down. The accused Moula Bux and Ghulam Abbass were taking said trees whereupon my cousin Ali Muhammad asked them not to take the trees as those were not belonging to them. In the meantime on the matter of said tree dispute arose and accused Jaffer took out gun from his house. Accused Abbas was armed with SBBL gun and accused Moula Bux was holding hatchet in his hand. On the quarrel my brother Ghulam Abbass, and cousin Ahmed Ali came out there from the houses. In the meantime within our sight accused Moula Bux inflicted hatchet blow to my cousin Ali Muhammad at his neck. My cousin Ali Muhammad tried to stop the accused from blowing hatchet but accused Jaffar fired at him at his chest. On sustaining the fire arm injury my cousin Ali Muhammad fallen down on the earth by raising cries and died instantantnouesly within our sight.
PW Ahmed Ali (Exh.7)
“… On 26.6.2004 a storm flared up resultantly many trees fallen down on the ground at about 3.00 p.m. on disputed plot. The accused Moula Bux and Abbas were cutting those trees and taking to their houses at about 6.00 p.m My brother Ali Muhammad stopped them not to take the trees as the disputed plot belong to us whereupon accused annoyed and used abusive language. On the quarrel, I, attracted there and found that accused Jaffar was taking DBBL gun in his hand. Accused Moula Bux was armed with hatchet, while accused Abbas was holding DBBL gun in his hand. Within our sight accused Moula Bux with intention to commit murer inflicted hatchet blow at my brother on his neck and accused Jaffar fired from his respective gun at my brother which hit at his chest. My brother by raising cries fallen on the ground and within our sight died.’
PW ABBAS (Exh. 9)
“On 26.6.2004 the incident took place…… … The accused Moula Bux and others were cutting and taking tree from the plot as such my cousin Ali Muhammad restrained thm (them) not to take the tree. Accused Moula Bux, Abbas and others disclosed that they will take the tree. In the meantime accused Jaffar went inside of his house and took gun with him. It was about 6.00 p.m I and Ahmed Ali came out on the noise and found accused Moula Bux gave hatchet blow to my cousin Ali Muhammad on his neck. My cousin tave (gave) his hands to rescue himself but the accused Jaffar fired at my cousin with gun which hit him on his chest who on sustaining fire arm injury fallen down on the ground, and my cousin within our sight died.
11. From the above it is no more ambiguous that this is a complete picture, painted by prosecution whereby detailing motive (cause of dispute); role of each even brining weapons from their houses; use thereof upon deceased and succumbing of deceased Ali Mohammad to such injuries. I am unable to find as to what role the present appellants i.e Saindad and Ahmed Ali played when they (appellants) have not been claimed by said witnesses to have reached at the spot even till death of said deceased. The prosecution witnesses (the witnesses of ocular account) even have not claimed the appellants as members of any unlawfully formed assembly the action whereof resulted into death.
12. Since the perusal of the above pieces of the evidence of the eye witnesses it becomes quite clear that there infact had not been any unlawful assembly till said portion of the incident because per Section 141 of the PPC to qualify the term unlawful assembly there must be five or more persons. For reference the Section is referred hereunder:-
141. Unlawful assembly:
An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is
First. To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or
Second. To resist the execution of any law, or any legal process, or
Third. To commit any mischief or criminal trespass, or other offence, or
Fourth. By means of criminal force, or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right, or
Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.”
However, while assessing evidence of above said eye witnesses it is quite obvious that till such time there were not claimed gather of five or more persons but it were accused Moula Bux, Abbas and Jaffar. In view of such an undisputed factual position I am unable to hold the application of Section 149 PPC against the appellants in the portion of unfortunate incident i.e murder of the deceased. At this juncture, I feel myself compelled to say that ‘to do justice is like walking on a tightened rope but difference is that error prima facie does not cause harm to person walking on that rope (Judge) but either of the holders (prosecution or defence). Since, Criminal Administration of Justice rests entirely on the principle that it is better to let hundred guilty go free to avoid conviction to an innocent because we know (universe even) that ‘guilty shall receive due hereinafter even if remains safe here therefore burden becomes rather heavy when the Court finds the accused entitled to conviction hence a conviction can sustain on no other evidence except direct, natural and confidence inspiring which should also be beyond reasonable doubts. Thus, I regretfully, say that was not kept in view by the learned trial Court judge while convicting the appellants on capital charge of murder. Accordingly, the conviction awarded to the appellants under Section 302 PPC is hereby set-aside being entirely misconceived.
13. With regard to the place of incident whereby the present appellants alongwith other accused persons, being armed with weapons, took positions in the morchas wherefrom caused fire arm injuries to PWs Muhammad Urs, Jaffar, Ahmed Ali, Ameer Farooque and Sardar, I found that these appellants have not denied such allegations nor took plea of alibi . They even in their 342 Cr.PC statements said nothing except that I am innocent and pray for justice. The record further shows that the appellants did not deny such allegation but came up with defence that there was head injury to appellant (deceased) Moula Bux and it was assault by the complainant party which goes to establish participation of the appellants in respect of such piece of prosecution case. The fire arm injuries on persons of the said injured PWs are also a matter of record, therefore, sharing a common object, being a member of unlawful assembly, does exist as appellants cannot be believed to be unaware of the consequences of their firing at PWs from morcha therefore, conviction to the appellants under section 324, 148 and 149 PPC were requiring no interference hence were maintained, as such.
14. Accordingly, these are reasons of my short order dated 09.09.2015 which is reproduced as under:
The impugned judgment is modified by maintaining sentence awarded to the appellants as provided under Section 324 read with Section 149, PPC only, which is as under :-
“2) U/s 324 r/w Sec: 149 PPC
All the present accused are sentenced to suffer R.I. for ten years and fine of Rs.5000/- each, in default of payment of fine, the accused shall suffer more R.I. for 3 months. In addition to such imprisonment the accused are also convicted and sentenced for causing hurt to injured named above to pay Daman to the tune of Rs.22000/- to each of 11 victims/injured in equal shares. Besides the accused shall suffer R.I. for 2 years.”
Further, it appears that appellants have served the sentence, therefore, appellants shall be released forthwith if not required to be detained in any other case.
JUDGE