This appeal under section 410, Cr. P. C. Is directed against the judgment dated 28th February, 1979 of the learned Additional Sessions Judge, Sanghar, whereby he convicted the appellants under section 302/307/323/201/34, P. P. C. And sentenced them to suffer imprisonment for life on the first count and 7 years' R. I., and fine of Rs. 1,000 and in default of payment of fine to suffer further R.
1. For one year on the second count, 3 years R. I. And fine of Rs. 500 and in default of payment of fine to undergo R. I. For -six months on the third count and R. I. For six months on the 4th count. The sentences of imprisonment are however ordered to run concurrently.
2. The facts of the prosecution case are that P. C. Muhammad Umer son of Mehrab Khan, Buckle No. 312 of Police Station Tando Adam lodged his F. I. R. On 25-1-1974 at Police Station Tando Adam of District Sanghar which reads as under :- "I am working as Police constable at Tando Adam Police Station, I know Kachkole, servant of Constable Hazratullah of P. P., Berani. Today i.e. On 25-1-1974 at 9-00 p.m. I had gone to the Town for taking meals. After taking meals, I was going to the police station along Station Road. When I reached near the Library, I found that one carrying a packed Bag, was going along the road towards West of the station side followed by one woman in white 'Burqa' having basket of date tree leaves in her hand and third person Kachkole servant of Hazratullah was going empty-handed. It was 10-00 p.m. When they came near me, the person carrying gunny bag on his shoulders, started giving the same to Kachkole for carrying. I asked him as to what. The bag contained. But he did not give any reply. Upon this I touched the bag, with my hand, which was lying on the shoulders of F:achkole. I found that it contained parts of human body. Upon this, I caught hold of Kachkole from his hand, when other person who had given the bag to Kachkole pushed me and started giving me `fists' blows. But I did not leave Kachkole. In the meanwhile, the woman came and caught me, but I gave her kick blows. Upon this the bag fell down from Kachkole. The woman came and bite me on my hand, but I got released (paper torn) and captured but she got the 'Burqa' released forcibly.
(Paper torn) fell down. In the meanwhile I raised cries. On cries P. C. Muhammad Adil gave `Hakkals' saying that he was reaching from where Muhammad Adil reached. Prior to it the woman left the basket (paper torn) that man ran away towards town. Thereafter Muhammad Adil arrived there and enquired about the bag from Kachkole, who declared. "Ali Usman son of Hazratullah Constable, has got two wives namely Mairaj Bibi and Shamim. There existed disagreement between them. They used to quarrel daily. Their husband Ali Usman is not present in the house. He has gone to Peshawar. Today elder wife of Usman Ali, Mst. Mairaj Bibi, Akbar brother-in-law of the son of Hazratullah and I conspired ourselves and at about 8-00/9-00 p.m., killed Mst. Shamim, younger wife of Ali Usman, in the room of the house and put her into a gunny bag stitched the same, throttled the neck of younger daughter (aged with in one year) of Mst. Shamim with a coloured rubber head sheet in the room and after tying her put her into the basket made from dried branches of date tree, put a sma ll cover let over it: Akbar carried the gunny bag containing dead body of deceased Shamim on his shoulder and Mst. Mehraj Bibi carried the basket containing dead body of the girl and we all the three were going to the Railway Station for boarding the train so that we may threw away the dead bodies somewhere. Thereafter we removed the clothes/cover-let from the basket and found that the young girl was slightly snoring in sleep. We unfastened the head sheet from her neck. I left Muhammad Adil at the packed gunny bag, and have come there at the police station after taking accused Kachkole, and the girl lying in the basket, and lodge report. Action be taken, Ismail Cahinwala had also rushed on the spot."
3. Shah Muhammad S.H.O. Recorded the F.I.R. Exh.
9. He found that a baby lying in the basket was alive. He therefore secured the baby, arrested the accused Kachkole and prepared such mashirnama Exh. 13 in presence of mashirs Jani and Ali Nawaz. He referred the baby for her examination, treatment and certificate to the hospital. He also found an injury on the hand of the complainant Muhammad Umer which appeared to be a bite injury and he therefore prepared such mashirnama Exh. 14 in the presence of the same mashirs. He referred the complainant Muhammad Umer also to the Medical Officer for examination, treatment and certificate. He thereafter interrogated the accused and proceeded to the place where the dead body of a woman was lying in a gunny bag at the station road. He opened the gunny bag and found the dead body of a woman having strangulation marks on her neck. He prepared such mashirnama Exh. 15 in presence of same mashirs as they were taken by him from the Police Station. Mashir Ali Nawaz identified the dead body to be of one Mst. Shamim wife of Ali Usman. He prepared such inquest report Exh. 16 in presence of same mashirs. He then sent the dead body to the Medical Officer Tando Adam for post-mortem examination through P. C. Shah Mir. He returned to the police station where accused Akbar and Mst. Mairaj Bibi appeared before him after about half an hour voluntarily as he sent for them. He found that the 'Burka' of Mst. Mairaj Bibi was in a torn condition and the accused Akbar having possessed a railway ticket. He secured the 'Burka' and the railway ticket, arrested the accused and prepared such mashirnama Exh.
17. He interrogated the accused and thereafter examined P. Ws. Muhammad Nawaz and P. C. Adil. He examined P. Ws. Amir Ali, Muhammad Ismail, Pir Bux, Ahmed, and Hafiz Muhammad on the same day and verified the investigation conducted by him. He then accompanied the D. S. P. To the house/Otak of Hazratullah, father of Ali Usman (husband of the deceased Mst. Shamim). He prepared such mashirnama Exh. 18 in presence of same mashir.
4. At the trial the prosecution examined the complainant Muhammad Umer (P. C). Adil (P. C.) Ismail Cabinwala mashir Muhammad Nawaz, Nazir Ahmed Tapedar, Dr. Muhammad Ismail, Medical Officer and the Investigating Officer Shah Muhammad S.H.O.
5. The accused however denied the allegations and claimed to be innocent. They further stated that they were called from their houses and falsely involved in this case.
6. The point for determination is whether Mst. Shamim has been strangulated by any of the accused ? If neck of baby Mst. Munawar Sultana was led with some cloth with intention to kill her either by throttling or suffocation.
7. Them is no doubt that Mst. Shamim died due to asphyxia. Dr. Muhammad Ismail. Medical Officer who has performed the autopsy has been examined and he has stated as under :- On 26-1-1974, I was Medical Officer Incharge Jam Mitha Khan Male Dispensary Tando Adam. When Police Station Tando Adam sent me a dead body of Mst. Shamim w/o Ali Usman aged about 22 years through F. C. Shahmir Khan B. No. 469 for post-mortem examination and certificate. Dead body reached there at about 9-0 a.m. I started. The post-mortem examination at 9-15 a.m. And finished at 11-0 a.m. On the same day. The body was an average built, mouth was partially opened, liquid froth was issuing from the nose, eyes were closed, congested, pupils were dilated, face was congested. Faecal matter were present in the shalwar. On external - examination 1 found the following :-
(1) The neck was swollen.
(2) There was legature mark about the hyoid bone going upwards back of neck reading almost the posterior half middle of neck right side. And upto position at the level of left ear on the left side. The lagature impression is on 1.5 e.m. Is width, and is well mark on the right side: The entire ligature impression measuring in 8-- has small abrasion and contusion. The small abrasion are also situated on, the front of the neck immediately below the ligature mark.
(3) There was abraded contusion 2" x - -- " under the chin.
The above injuries were anti-mortem and appeared to have been caused by strangulation and throttling with the rope or piece of cloth and human hands.
In case of injury No. 2, it is a result of knot of rope under the chin.
On internal examination I found the following.
Under the external injury mentioned above there was subcutaneous tissues muscles were lacerated extra vaxation of blood present in sub--cutaneous tissues and under the ligature mark and surrounding area.
(2) Hyoid bone was fractured.
(3) Laryanx and trachea was lacerated.
(4) The lungs were congested and the bleeding were present in lungs tissue.
(5) Stomach contains semi-digested food particles present.
In my opinion the death is due to asphyxia (respiratory failure) as a result of pressure applied on her neck with a substance like a cord etc. This injury was sufficient to cause death in ordinary course of nature. She may have died within few minutes and the time between death and post- mortem was about 12 to 15 hours duration. I prepared such . Post-mortem examination report which I produce Exh. 8-A. It is the same and bears my signatural also examined baby Munawar Sultan daughter of Ali Usman aged about 6 months referred by the P. S. Tando Adam on 25-1-1974 at 10-40 p.m. For examination, treatment and certificate through police constable Muhammad Umar. She was vomitting and cough but have no external injury seen on her body. I preferred such certificate which I produce as Exh. 8-B. It is the same and bears my signature. On 26-1-1974 at about 10 a.m. Police Constable Muhammad Umer referred to me by the P. S. Tando Adam for examination certificate and treatment. I examined him and found the following injuries on his person:
(1) A crescent shape abrasion -- x 1/8" on the posterior aspect of left hand. This sole injury as- appeared to have been caused by human nail (bard blunt substance) and was simple in nature. I prepared such examination report which I produce as Exh. 8-C. It is the same and bears my signature.
By Mr. Khoso, Advocate on behalf of the accused It is possible to suggest that the injury on the person of Muhammad Umar could be self-suffered or s.-If-inflicted."
8. I will first of all examine the evidence on record. The complainant Muhammad Umer has deposed to facts given by him in his F. I. R. Hs has also stated that he found a gunny bag on shoulder of the accused Akbar who gave the same to accused Kachkole when he spotted them for the first time. He also found Mst. Meraj Bibi (accused) carrying a basket. He suspected something in the gunny bag and therefore enquired from the accused who did not give proper reply and his suspicion therefore became strong. He then touched the gunny bag and noticed as if there was a body of a human being in it. He caught hold of accused Kachkole whereas accused Akbar and Mst.
Meraj Bibi ran away. The basket which was in hand of Mst. Meraj Bibi fell on the ground and her 'burka' got torn in the scuffle. P. C. Adil who was passing nearby also came there. He in--formed P.
C. Adil. They opened the gunny bag and found a dead body of a human being in it. They also found a baby, a female child of one year's age in the basket. The baby was unconscious and a silken cloth was wrapped round her neck. He took the baby in his lap and went along with the accused Kachkole to the Police Station. He left P. C. Adil near Gunny bag containing dead body and narrated the factor to S. H. O. Shah Muhammad who recorded his F. I. R. He has also stated that accused Mst.
Meraj Bibi and the deceased Mst. Shamim were known to him personally as both of them were wives of Ali Usman son of Hazratullah who was serving as a P. C. In Sanghar District. He also knew that the accused Akbar was brother of the accused Meraj Bibi. The third accused Kachkole was also known to him much before the incident as he was working as a servant of Ali Usman. This family was known to him before the incident and he was even knowing their names, as they were residing at Tando Adam Town. He has however denied whether he stated before the lower Court that he did not know accused Akbar prior to the incident and such extract Exh. 10 has been brought on the record. He has also stated that it was not a fact if the police held any identification parade for the accused Akbar and he picked out him in the parade correctly. He has denied having said so in the lower Court. He has also admitted having stated that he was not present when Akbar and Mst. Meraj Bibi were arrested from the railway station Tando Adam. He has also stated that he did not say in his F. I. R. That both the wives of Ali Usman had come to police station on one or two occasions on account of a quarrel and they tried to patch up their differences as they were wives of a police constable. He has also stated that Octroi post was at a distance of 50 feet from the place where he apprehended the accused Kachkole.
9. P. W. Adil (P. C.) who was attracted on cries has stated before the trial Court that he saw P. C.
Muhammad Umer being given fist blows and pushes by the accused Mst. Meraj Bibi and the accused Kachkole when he held the accused Akbar by his arm. He found gunny bag and a basket lying on the ground. He has also stated that they arrested accused Akbar while accused Mst. Meraj Bibi and Kachkole ran away. On enquiry they were. Informed by the accused that there was a dead body in the gunny bag and a baby in the basket. The S. H. O. Shah Muhammad reached the scene of offence along with police party. He pointed out to the accused Kachkol that it was he who was arrested while another one i.e. Akbar ran away. He has also stated that he had seen the accused Mst. Meraj Bibi at that time. The accused were known to him before the incident and that the accused were arrested from the railway platform at about midnight when a third class ticket was secured from the possession of the accused Akbar. No other private person reached the scene of offence and the Octroi post was nearer to that place than the gate of the Police Station. The 'Irani Hotel' was also nearer than the Police Station. After he reached at the scene of offence other private persons also reached there.
Ismail Cabinwala P. W. 2 has stated -before the trial Court that he heard cries and commotion and went towards that place where he saw that a woman wearing a "desi burka" and two other persons were standing and P. W. Adil was ahead of him. They saw that the complainant Muhammad Umer caught hold of one of the male culprits. There was a gunny bag and also a basket lying there but they did not see as to what was in the gunny bag and also in the basket. When he was asked to identify the person who was arrested by P. C. Muhammad Umer he pointed out to the accused Akbar. The woman was holding a 'basket in her hand while one of the male accused was carrying a bag and it was accused Akbar who was carrying it. The woman had veil on her face and he therefore did not identify her. Nazir Ahmed P. W. 1 is Tapedar who has prepared the sketch of the scene of offence and it's surroundings. He has produced the sketch as Exh.
6. Muhammad Nawaz P.
W. 5 is mashir for arrest of the accused Kachkol, injuries on person of the complainant, place where the accused Kachkole was caught hold of along with the dead body, inquest report, arrest of accused Akbar and Mst. Mairaj Bibi, and the place where the deceased was killed. He has supported the prosecution cases for preparation of all the abovesaid mashirnamas in his presence. He has also stated that first husband of the deceased was present at the Police Station in Police lock-up. He was annoyed with Mst. Shamim and Ali Usman on account of second marriage of the deceased with Ali Usman. Shah Muhammad S. H. O. P. W. 6 who Investigating Officer has deposed to about the investigation conducted by him. He was however declared hostile and cross--examined by the prosecution. He has stated in his cross-examination conducted by the prosecutor that he had not arrested the accused Akbar and Mst. Mairaj Bibi from the platform of Railway Station Tando Adam. He has admitted to have mentioned it in mashirnama Exh. 17 but has stated that he had falsely mentioned it in the mashirnwna as he had prepared a false mashirnama about the arrest of the accused Akbar and Mst. Mairaj Bibi showing their arrest at the railway station. The mashirnama of house of Ali Usman was prepared at the instance of D. S. P.
Naushad Ali. He did not see Ahmed Hussain first husband of Mst. Shamim at Police Station and he did not arrest the said Ahmad Hussain.
9. Mr. Allahdino G. Memon, the learned counsel for the appellants contends that there is ocular testimony to connect any of the appellants with the offence. As far as case of the appellants Akbar and Mst. Meraj Bibi is concerned their names do not appear in F.
1. R. In spite of the fact that the complainant has claimed to be knowing them prior to the incident. In case, it is accepted that they were not known to him prior to the incident as they were seen by him at the place where accused Kachkol was apprehended by him, then also it was necessary to have arranged identification parade for the purposes of establishing the proper identity of the appellants which has somehow not been done in this case. Moreover the Investigating Officer has not supported the prosecution case regarding arrest of both the appellants from the platform of railway station. He has on the contrary stated that they were sent for from their house by him and a false 'mashirnama' showing their arrest at railway station was prepared by him. There being no other evidence against both the appellants who are therefore entitled to acquittal under the circumstances of the case.
10. Regarding the case of the accused Kachkol, the learned counsel contends that he has been apprehended by the complainant along with a gunny bag containing dead body of the deceased Mst. Shamim. There is no other piece of evidence to show that it was accused Kachkol who committed her murder. Therefore in absence of any other piece of evidence against him, he will be liable only under section 201, P. P. C. He being admittedly a servant of the appellant Mst. Mairaj Bibi and a young boy of about 14 years of age on 25-1-1974 when this incident took place has been used for the purposes of causing disappearance of the evidence of murder of Mst. Shamim by destroying her dead body. There is however no evidence to connect any of the appellants for attempting murder of the small baby found in the basket at the time when the accused Kachkol was arrested by the complainant. It has been lastly contended that the appellant Kachkol is a Juvenile offender, being a `child' in terms of section 5 of Sind Children Act. Therefore his case be considered keeping in view, his age as well as the influence of his master on him. He has placed his reliance on 1981 P Cr. L J 299.
11. Mr. A. A. Dareshani, the learned counsel appearing for the State is also of the view that there is no evidence to connect the appellants Akbar and Mairaj Bibi with the offence. He therefore, does not support the convictions and sentences awarded to them. He has however contended that the appellant Kachkol has been apprehended along with the gunny bag containing dead body of the deceased Mst. Shamim and offence under section 201, P. P. C. Stands proved beyond any reasonable doubt against him.
12. I have considered the contentions of the learned counsel for the appellants as well as State. I have also gone through the citation referred to above by the learned counsel for the appellants and have read the evidence on record. It's no doubt true that there is no direct evidence to connect the appellants Akbar and Mst. Mairaj Bibi with the offence. The circumstance of their arrest from the railway platform after the occurrence, has also become suspicious when the Investigating Officer has himself not supported it. The complainant has not given their names in the F.
1. R. Though he has claimed at the trial that both of them were known to him prior to this incident. It shows that they were certainly not known to him prior to this incident otherwise he could not have missed to give their names in the F. I. R. Therefore question before me arises if they were properly seen and identified by the complainant at the time when he apprehended the appellant Kachkol. I think it will not be safe to rely on his evidence in absence of identification test as far as both these appellants are concerned particularly when their arrest from the railway platform has become doubtful. There is absolutely no other circumstance to connect the appellants with the offence. I am therefore of the view that prosecution has failed to prove any charge against the appellants. The convictions and sentences awarded to the appellants Akbar and Mst. Mairaj Bibi cannot be maintained on such evidence.
13. As far as the case of the appellant Kachkol is concerned, there is no evidence whatsoever against him for any offence except one under section 201, P. P. C. And I therefore acquit him as well of the charges under sections 302/307/323 and 34, P. P. C.
14. As far as the offence under section 201, P. P. C. Is concerned, it has been proved beyond any doubt as he has been apprehended along with a gunny bag containing a dead body of Mst.
Shamim. Therefore his liability has been proved for offence under section 201, P. P. C. I therefore, accept his appeal only to the extent of altering his convictions under section 302/307/' 323/34, P. P. C. To one under section 201, P. P. C. Only. He has remained in' jail as an under trial prisoner for about four months and has also spent a little more than two years in jail after his conviction. He was undoubtedly, below 16 years of age at the time when the incident took place and it was on account of it that he was released on bail during the pendency of his case before the trial Court. He has been sent to Juvenile Jail after 'conviction accepting him to be under 16 years of age at the time of the incident. I therefore considering his young age, influence of his master on him and detention before and after conviction feel that it will meet the ends of justice to reduce his sentence to one already undergone by him which will be sufficient under the circumstances of the case.
15. For the foregoing reasons I accept the appeal of Akbar and Mst. Mairaj Bibi, set aside their convictions and sentences and acquit then. As far as appeal of the accused Kachkol is concerned, it is accepted only to the extent of acquitting him of charges under section 302/307/323/34, P. P. C.
The convictions and sentences awarded to him under above offences are set aside. His conviction under section 201, P. P. C. Is however maintained with modification of the sentence already undergone by him.