The present appeal has been filed by Kouro, Gul Hassan, Umar, Khudadino, Maloh and Gul Muhammad to challenge a judgment of the Ist Additional Sessions Judge, Sukkur, whereby each one of them was convicted under section 307, P. P. C. Read with section 149, P. P. C. While Kouro, Gul Hassan; Khudadino and Malho were sentenced to R. I. For four years and a fine of Rs. 1,000 (in default R. I. For six months) the remaining two appellants Umar and Gul Muhammad were sentenced to R. I. For one year and a fine of Rs.
1,000 (in default R. I. For three months). They were represented before me by Mr. Azizullah K. Shaikh, Advocate while the State was represented by Mr.. R. A. Qureshi, Advocate.
2. The brief facts of the case are that Mst. Razul was a concubine of appellant Kouro. Some time before the incident in this case, which took place on 14-1-1972 Mst. Razul became intimate with P. W.
Muhammad Bux. The prosecution case then is that appellant Kouro resented such affinity between Mst. Razul and Muhammad Bux so that he had threatened the latter. In regard to the incident it is stated that at breakfast time (say be around 8 a.m.) on 14-1-1972 all the six appellants entered the house of complainant Ali Muhammad in village Budho, taluka Sukkur. Appellants Kouro, Gul Hassan, Malho and Khudadino were armed with their licensed guns whereas the appellants Umar and Gul Muhammad were carrying hatchets. At the house of the complainant appellant Gul Hassan instigated the remaining appellants to kill Muhammad Bux upon which Kouro fired at Muhammad Bux hitting him on the left arm and Malho fired at Abdul Hakim hitting him on the chest. The cries and fire-arm reports attracted the neighbours who included P. Ws. Ghulam Nabi and Jhangal. On seeing these persons appellant Gul Hassan and Khudadino also fired which did not cause injury to any person though the pellets bit the wall and a rafter. Appellants Kouro and Khudadino started running but such persons who had come on gun-reports tried to catch them unsuccessfully, although they were deprived of their guns. The remaining four appellants ran away in a different direction. Ali Muhammad proceeded to Bagerji Police Station at a distance of seven miles and lodged a report at 11 a.m. Which was recorded by S. H. O. Qadar Bux.
3. The Police officer proceeded to the scene and on the way he found injured Muhammad Bux and Abdul Hakim being taken to a hospital in a jeep for treatment. He prepared a mashirnama of their injuries and noted the fact of the blood stains on their clothes and secured the same. He also gave a letter to the Medical Officer requesting for examination, treatment and a certificate. The statement of the two injured persons was also recorded. The Police Officer then proceeded to the scene and found blood on the ground which was secured. He also noted pellet marks on the wall and the rafter and secured five pellets and paper wads. Four empty cartridges were also secured.
Complainant Ali Ahmad produced the two guns that had earlier been seized by the witnesses from appellants Kouro and Khudadino. On the following day he arrested appellants Kouro, Gul Hassan, Malho and Umar. While appellant Malho was in custody he volunteered to produce the licensed gun which he did produce from his house and the same was secured.
4. On the day of incident at 10-45 a.m. Appellant Umar also lodged a report at the same police station which was recorded by the same Police officer under section 147/148/323, P. P. C. From amongst the appellants Gul Hassan and Umar were also referred to the same Medical Officer for examination and treatment of their injuries. In fact the counter case was also tried by the Additional Sessions Judge in which he acquitted the complainant Ali Muhammad, the prosecution witnesses Muhammad Bux and Abdul Karim as well as some others.
5. The two guns recovered from appellants Kouro and Malho were sent to Mukhtar Ahmad, Ballistic Expert on 24-1-1972 and on 31-12-1973 a report was given by the Expert to show that one each out of the four crime empties had been fired from these two guns. On completion of investigation the case was sent up for trial which has resulted in the conviction and sentence of the appellants as aforesaid.
6. At the trial the prosecution examined complainant Ali Muhammad ; injured Muhammad Bux and Abdul .Hakim ; Ghulam Nabi and Jhangal, who bad come at the scene on hearing cries and gun- reports ; mashlr Atta Muhammad in whose presence the scene was inspected and crime weapons and crime empties were secured either from the scene or from appellant Malho ; Ballistic Expert Mukhtar Ahmad ; and S. H. O. Qadar Bux. The evidence of Dr. Khan Muhammad who had been examined by the committal Court was brought on the record under section 509, Cr. P. C.
7. While the appellants examined no witness in their defence they had 'denied the prosecution case including the motive for the crime. They stated that appellants Umar and Gul Hassan were injured by the complainant and injured Muhammad Bux and Abdul Hakim. In regard to the scene of occurrence they alleged partisanship and fabrication against the investigating officer. In regard to the two guns stated to have been obtained from appellants Kouro and Khudadino they stated that these guns had been recovered by the neighbours who wanted to avert the fight. Appellant Malho admitted having produced his licensed gun, although he stated that no mashirnama was available at that time. In regard to witnesses they alleged interestedness against their by reason of the counter case.
8. The inter se relationship between the appellants is that Kouro and Gul Hassan are brothers and while Gul Muhammad is their father. Khudadino and Malho are cousins of Kouro and Gul Hassan whereas Umar is their nephew. On, the other hand injured Muhammad Bux is the cousin of complainant Ali Muhammad whereas injured Abdul Hakim is his son. P. W. Jhangal is the son of a maternal cousin of Ali Muhammad while P. W. Ghulam Nabi is their neighbour.
9. Mr. Azizullah K. Shaikh, the learned Advocate appearing for the appellants has raised two-fold contentions ; firstly, that the appellants would be protected by the theory of self-defence and alternatively, that the evidence was unreliable and in any case the chance of inflation in the number of accused existed and required scrutiny of the circumstances of the case.
10. In regard to the question of self-defence the learned Additional Sessions Judge had tried the complainant, the injured and the witnesses, in the case instituted at the instance of appellant Umar under section 323/147/ 148, P. P. C. That judgment has not been challenged. I have examined this defence set up by the appellants and I am myself of the view that the plea of self-defence cannot be available to the appellants. No doubt appellant Umar had lodged the report at the same police station 15 minutes before the report was lodged by complainant Ali Muhammad but that circumstance by itself cannot lend any higher credence to the story of the appellants. In this report it was stated by appellant Umar that while he along with appellants Gul Hassan and Kouro were sitting outside their house six persons including the complainant and two injured came to their house and while injured Muhammad Bux was armed with a gun the remaining had lathis. The report goes on to recite that they made a grievance in relation to extension of the boundary of their land and after saying so they attacked causing one laths injury both to Umar and Gul Hassan.
According to the report the time of incident was breakfast time. Dr. Khan Muhammad examined Umar and Gul Hassan at 3 p.m. On the day following the incident and found that Umar had one lacerated wound 1--- x 1/8--- x 1/8--- on frontal region of the head while Gul Hassan had a contusion 1--- x ----- on right shoulder region. According to the Medical Officer the age of injury was about 13 hours and counting it backwards from 3 p.m. On 15-1-1972 the medical evidence shows that the injury was caused on the night between 14th and 15th January. The incident as both the parties stated took place at breakfast time on 14-1-1972. Clearly, therefore, the medical evidence did not support the appellants to substantiate their plea of self-defence. The injuries are also of a very minor nature and although the Medical Officer has not been questioned on that aspect of the case there is good reason to believe that such injuries could be self-suffered.
Additionally there appears to be no reason compatible with the existence of the injury on the person of Umar which should adequately explain the delay in sending Umar to the hospital. If Umar had injury on his person at the time of lodging the report there was hardly any reason for the Police Officer to have waited until the following afternoon to send him to the hospital. Additionally the evidence of the prosecution witnesses including mashir Atta Muhammad and Investigating Officer Qadar Bux conclusively shows that the house of that appellant Umar was at a distance of one or two furlongs from the scene of occurrence and there is nothing on the record to indicate that any blood spots were found in that house. On the other hand sizable quantity of blood was found at the house of complainant Ali Muhammad, besides that four empties and the several pellets that were lying at the scene. I am clearly of the view that the learned Additional Sessions Judge came to the correct conclusion in regard to the plea of self-defence not having been substantiated.
11. The next point that deserves consideration is in regard to the intrinsic value of the prosecution evidence in the present case. It is an established fact that in this part of the country there has always been a strong desire on the part of the complainant to implicate as many persons of the family of the accused as would be possible. In the present case six members of one family have been implicated. In fact it appears doubtful if any adult member of the family has been spared.
Such circum--stance always puts a Court on caution and it is necessary to look for corroboration.
12. In the first place the motive alleged seems to require consideration. According to the prosecution, appellant Kouro was maintaining Mst. Razul as his concubine and she later developed intimacy with injured Muhammad Bux. While such a circumstance is alleged as motive there is evidence on the record that Mst. Razul was not living at or near the house of the parties. Be that as it may, it is heardly probable that Kouro appellant would be able to gather the support of his father, brother, nephew and cousins to seek revenge from Muhammad Bux. The appellants are Mehar Balochs by caste and in that society only a bravo would disclose his illicit intimacy with another woman and perhaps such disclosure would never be admitted, what to speak of being treated as a point of pride before the members of his family. Moreover, if this were the motive there is hardly any reason for causing injuries to Abdul Hakim for he was not in any manner connected with Mst.
Razul. It seems unnatural. The learned Additional Sessions Judge has relied on the evidence of motive but in my view he acted wrongly. While assessing the evidence of motive one has always to travel into the realm of probability and if the alleged motive even indicates improbability the Courts refrain from using it as a circumstance against the accused.
13. Coming to the evidence of injuries only two persons were injured namely Muhammad Bux and Abdul Hakim and each one of them had only one injury. It is consistently stated by every eye- witness including the injured that Kouro fired gunshot at Muhammad Bux and then Malho fired gunshot at Abdul Hakim. No other person caused injury to the two injured persons. They are sought to be convicted solely by reason of their presence at the scene. The guns of these two appellants were sent to the Ballistic Expert together with the four spent cartridges secured from the scene and he has given positive evidence. The part played by these two appellants is established on the record beyond doubt. In regard to the remaining four appellants it is stated that Gul Hassan and Khudadino also fired but did not cause injury to any person and instead the pellets hit the wails and the rafters. Such firing appears to be meaningless if these two appellants also had the same object as appellants Kouro and Malho. If we are to believe the prosecution story that Gul Hassan and Khudadino had come along with Kouro and Malho with the same object they should rather have caused injuries than shot at the rafters of the walls. On the other hand the presence of pellet marks on the wall and the rafter is completely compatible with the firing having been done by Kouro and Malho. In regard to Khudadino it is stated that his gun was seized by the witnesses at the scene. This gun was never sent .To the Ballistic Expert and there is no positive evidence in regard to use of this gun. It seems that at the stage of investigation police suspected the allegations against Khudadino having used the gun. Coming to the case of Gul Hassan nothing is stated as to what he did except for the similar allegation that he also like Khudadino fired at the wall or the rafter. In any case the gun stated to have been used by Gul Hassan has not been secured. The remaining two appellants namely Umar and Gul Muhammad are stated to have been armed with hatchets and nothing is stated in regard to the use they made of these weapons.
14. I have looked at this case from the angle that there was a counter case also. All the witnesses had a desire to save themselves from the counter case and correspondingly they would also have a desire to implicate as many persons from the family of the accused as possible. This would show interest of the prosecution witnesses and in cases of such nature so corroboration of the ocular testimony is necessary. Such corroboration is available in respect of appellants Kouro and Malho but is not available in case of the remaining appellants.
15. In the result the appeal of Kouro and Malho is dismissed. The are on bail and they shall forthwith surrender or be taken into custody a remanded to serve out the balance of their sentence. The appeal of appellant Gul Hassan, Umar, Khudadino and Gul Muhammad is allowed and the judgment of conviction and the consequent sentence is set aside. They are acquitted. They are on bail and they need not surrender. Their bail bond shall stand discharged.