' SARMAD JALAL OSMANY, J.--- This appeal impugns the judgment, dated 10-10-2003 passed by the learned Special Judge, S.T.A., Khairpur in Special Case No,150 of 2001 whereby the appellants namely Pathan Lashari, Abdul Majeed and Lakhmeer were convicted and sentenced to suffer imprisonment for life under sections 302(b) and 34, P.P.C. The benefit of section 382-B, Cr.P.C. Was accorded to them.
2. Briefly stated the case of the prosecution per Crime No,8 of 2000 of Police Station Baradi Jatoi are that on 26-5-2000 at 2 a.m. The complainant Khan Muhammad and his son Buxial and Khuda Bux had gone for the purpose of water rotation to their lands when they saw four persons standing in front of them who were identified by torch light as appellants Pathan, Abdul Majeed and Lakhmeer as well as Ameer Bux, armed with a kalashnikov, pistol and gun respectively. Then appellant Pathan fired with his weapon at the complainant party which hit the right thigh of Buxial who fell down with a cry. Thereupon the complainant party raised a commotion while trying to escape upon which P.Ws. Karam Khan and Muhammad Parial as well as other villagers came running to the scene who had also identified the appellants and other accused at which the latter went away while firing in the air. The complainant party then saw that injured Buxial was shivering and after some time he died. The motive for the crime was stated by the complainant to be enmity between the parties.
3. After the usual investigation the appellants were arrested along with one Masti Khan who has also been named in the F.I.R. As an instigator and all were sent up for trial Ameer Bux being shown as an absconder. Thereafter said Ameer Bux also joined the trial having obtained bail before arrest from this Court.
4. Thereafter the charge was framed against all the appellants as well as co-accused Ameer Bux and Masti Khan to which they pleaded not guilty and claimed their trial.
5. The prosecution collected and produced the following evidence at the trial.
(a) The ocular version furnished by the eye-witnesses P.Ws. Khan Muhammad and Khuda Bux who were corroborated by P.W. Karam Khan regarding identification of the assailants while decamping from the place of incident with their weapons and narration of the incident by the eye-witnesses.
(b) Motive viz. Previous enmity between the parties due to the murder of Mureed brother of accused Abdul Majeed at the hands of Wazeer who is stated to be the brother of deceased.
(c) Medical evidence.
(d) Recoveries of bullet empties, a spade said to belong to deceased and a torch belonging to the complainant.
6. In support of its case the prosecution examined P.W.1 complainant Khan Muhammad as Exh.3 who produced F.I.R. No,8 of 2000 as Exh.3-A and the receipt of the dead body of his son after postmortem examination as Exh.3-B; P.W.2 Khuda Bux as Exh.4 who produced his 164, Cr.P.C.
Statement as Exh.4-A; P.W.3 Karam Khan as Exh.5 who produced his 164, Cr.P.C. Statement as Exh.5- A; P.W.4 Mashir Dur Muhammad as Exh.7 who produced Mashirnama of inspection of place of Wardat as well as the dead body of deceased Buxial as Exh.7-A; Inquest Report in respect of the deceased Buxial as Exh.7-B; Mashirnama of recovery of torch from complainant as Exh.7-C; Mashirnama of recovery of blood-stained clothes of the deceased from P.C. Piyaro Khan as Exh.7-D and Mashirnama dated 6-6-2000 of arrest of accused Pathan, Abdul Majeed and Masti Khan as Exh.7-E. The prosecution also examined P.W.5 Investigating Officer Baz Khan, S.H.O. Of Police Station, Baradi Jatoi as Exh.6 who produced Mashirnama of arrest of accused Lakhmeer as Exh.8-A and report of Chemical Examiner in respect of blood-stained earth of deceased as Exh.8-B; P.W.6 Dr. Chetan Das, Medical officer of Rural Health Centre, Pirjo Goth as Exh.9 who produced the post- mortem report of deceased as Exh.9-A; P.W.7 Tapedar Izhar Hussain as Exh.11 who produced the sketch of Wardat as Exh.11-A and P.W.8 Piyaro Khan police constable as Exh.12. While P.W.
Muhammad Paryal was given up by the prosecutions vide statement moved by learned S.P.P. As Exh.6 on the ground that the evidence of this witness is the same as of P.W. Karam Khan who was already examined. During the pendency of the case the learned S.P.P. Moved a statement as Exh.10 together with relevant documents showing that accused Masti Khan had expired on 22-10-2002.
Accordingly the proceedings of the case were abated as against the said accused vide order passed by the learned S.T.A. Court on 2-11-2002 on said statement. Subsequently the learned S.P.P.
Vide his statement moved as Exh.13 closed the side of 'prosecution evidence. Thereafter, the statements under section 342, Cr.P.C. Of the appellants Pathan, Abdul Majeed, Lakhmeer and co- accused Ameer Bux were recorded as Exhs.14 to 17, respectively. The appellant Pathan during his statement also produced the attested photo copy of water share list as Exh.14-A. However, the appellants examined no witness in their defence nor they did examine themselves on oath although such opportunity was given to them. After the statements of the appellants were recorded, one of the co-accused namely Ameer Bux absconded away, therefore, the N.B.Ws. Were issued against him and ultimately he was declared absconder vide order, dated 15-8-2003 and vide diary dated 15-8-2003, his case was also separated till his arrest and production before the Court while the case against the remaining accused was ordered to proceed without further delay.
7. After hearing learned counsel for the appellants as well as A.P.P., the learned S.T.A. Court passed the impugned judgment as afore-stated.
8. On the basis of the foregoing facts, circumstances and evidence on the record, learned counsel for the appellants has firstly submitted that the presence of the complainant party and the deceased at the scene at 2 a.m. In the morning is doubtful since the entire case has been built around the rotation of water for which they were staying the night at the house of Bahram Khan which was close to their land. Per learned counsel complainant Khan Muhammad has admitted under cross-examination that the watercourse belonged to his community and in fact that the land where they had gone for water rotation does not belong to him. So also P.W. Khuda Bux has admitted in cross-examination that he could not give the Survey Number of the land and also that the watercourse belonged to his community and hence there is no fixed date for water rotation.
This aspect of the matter has been corroborated by P.W. Karam Khan who also admitted in cross- examination that there is no water share list as the watercourse belonged to their community.
Consequently, per learned counsel there was no need for the complainant party to get up at 2 a.m.
In the morning for the purpose of water rotation. In support of his submission learned counsel has relied upon Niaz Ahmed v. The State 2000 SCM R 1593.
9. Next per learned counsel the complainant plus the eye-witnesses are related inter se and there is admitted enmity between the parties. Hence their evidence is to be corroborated in all material particulars which is lacking in the present matter. In this regard the medical evidence on the record does not support the prosecution case since per the Medico-legal Officer P.W. Dr. Chetan Dass there was only one arceated fire-arm injury 3 c.m. In diameter on the front of the right thigh of the deceased, the femur being fractured and if both the assailant and the deceased were standing then the bullet wound would be oval and not circular. Hence, per learned counsel since according to the prosecution case both the deceased and appellant Pathan were standing the bullet injury should have been oval and nct circular as in the present case. Similarly, per learned counsel slk empties were recovered from the scene of crime and also a bullet from the deceased's body but no ballistic test was performed to verify whether the same were of a kalashnikov. Again, per learned counsel the medical evidence per se cannot be relied upon for the purpose of conviction as according to settled law it is corroborative in nature. In support of these submissions learned counsel has relied upon Muhammad Iqbal v. Abid Hussain 1994 SCM R 1928; Zafar Hayat v. State 1995 SCM R 896; Muhammad Shareef v. State 1997 SCM R 866; Muhammad Achar v. State PLD 1990 Kar. 314; Muhammad Ashraf v. State 1998 SCMR 279; Atta Muhammad v. State 1995 SCM R 599 and Mehrban v. Abdul Hameed PLD 1983 SC 117.
10. Next, per learned counsel it is quite strange as to why the wound of the deceased was not bandaged by the complainant party and he lay shivering for half an hour before he died. In this regard he has submitted that under cross-examination P.W. Khuda Bux has admitted that no bandage was applied to the deceased whereas complainant Khan Muhammad has stated that the injury was tied with the deceased's towel. However, in the Mashimama of the crime scene no such bandage was available and neither was it secured by the Investigating Officer P.W. Baz Khan.
So also per learned counsel the Investigating Officer has admitted under cross-examination that no ballistic test was carried out on the six empties recovered from the scene or the bullet recovered from the body of the deceased to establish whether they were of a kalashnikov. Again he has admitted that he never visited the house of Bahram. Khan during investigation and also did not confirm whether the land belonged to the complainant party or whether it was their turn for water rotation.
11. Next per learned counsel it is quite strange that appellant Pathan should have killed the deceased when the enmity of the complainant party was with appellant Majeed who was available at the scene while being fully armed with a. Pistol. So also the mere prompt lodging of the F.I.R. Is no ground in itself to record the conviction as this is only of corroborative value and hence the learned S.T.A. Court has erred while relying heavily on this factum. In support of this submission learned counsel has relied upon State v. Muhammad Shareef 1995 SCM R 635. So also per learned counsel all the witnesses being related inter se cannot be relied upon unless corroborated through independent source which is missing in the matter although the scene of the crime is located in a village. For this proposition he has relied upon Abdul Hussain v. State 2003 PCr.LJ 1847.
12. Finally, learned counsel has submitted that the case of Abdul Majeed and Lakhmeer is on an entirely different footing as no overt act has been attributed to them. Consequently, their common intention to participate in the crime has also not been proved by the prosecution, in support of which he has cited Hassandin v. Muhammad Mushtaq NLR 1978 Criminal 636; Hassan v. State 1969 SCM R 454; Muhammad Ishaq v. State 2002 PCr.LJ 102.
13. For all the foregoing reasons learned counsel has prayed that as the prosecution has not been able to prove its case against the appellants/accused beyond reasonable doubt, therefore, this appeal be allowed and the appellants be acquitted. He has relied upon Abdul Hussain v. State 2003 PCr.LJ 1847; Doulat v.'State 1980 SCM R 216 and Muhammad Khan v. State PLJ 2000 SC 1041.
14. On the -other hand, learned A.A.-G. Has fully supported the impugned judgment on the ground that the F.I.R. Was lodged promptly which is corroborated by the eye-witnesses and the recoveries viz. a torch, spade, empties and a bullet from the deceased's body as well as blood-stained clothes etc. Similarly, the complainant as well as the, eyewitnesses fully corroborate each other in their depositions before the learned trial Court as well as in their 164, Cr.P.C. Statements.
15. We have heard learned counsel as well as learned A.A.-G. And gone through the record with their assistance. Our conclusions are as follows:--
16. Insofar as the case of appellant Pathan Lashari is concerned, it Would be seen that he has been given the overt role of having fired at the deceased as a result of which the latter suffered a fatal injury and died. The prosecution story in this regard is supported by the depositions of the eye- witnesses viz. Complainant 'P.W. Khan Muhammad and P.W. Khuda Bux whereas P.W. Karam, Khan rushed to the scene from his house upon hearing fire-arm shots and saw all the appellants as well as co-accused armed with their respective weapons running away. Under cross-examination the complainant has stated that the appellants/accused were standing 20/25 paces away from the complainant party and had identified them by flashing a torch light and so also by moon-light.
P.W. Khuda Bux in his deposition has also stated that his father viz. Complainant had a torch in his hand with which they had identified the appellants/accused. Similarly, P.W. Karam Khan who had arrived at the scene upon hearing the fire-arm shots has also stated in his deposition that he saw the appellants/accused running away therefrom with their respective weapons. Under cross- examination he has stated that his house would be about 150 paces away from the place of incident and that he also had a torch. The complainant as well as the prosecution witnesses have all stated that the motive for the murder of the deceased was the earlier murder of appellant Majeed's brother viz. Mureed allegedly at the hands of Wazeer who is the brother of the deceased Khuda Bux for which the complainant party wanted a Faisla (compromise) which was refused by acquitted accused Masti Khan the relative of the accused party who used to say that they would take the revenge of Mureed from the complainant party. The depositions of the eye-witnesses are corroborated through the recoveries of a spade stated to be in the hands of the deceased, a torch belonging to the complainant and six empties from the scene as well as blood-stained earth.
Similarly the post-mortem report of the deceased discloses that he received a single bullet injury on his right thigh which had ruptured the femoral artery and vein and so also the right femur was fractured which resulted in his death due to shock and haemorrhage. So also a bullet was recovered from his body.
17. Upon an assessm ent of the foregoing evidence on the record, it would be seen that according to P.W. Karam Khan who along with P.W. Paryal had arrived at the scene upon hearing the gun-fire, he had D identified the accused with the help of a torch and at that time they were running away while firing. He has admitted under cross-examination that his house was about 150 paces away from the scene in which event it is hardly believable that he was able to identify the accused.
Secondly according to this witness the complainant had narrated the incident to him; however, the latter had not said so in his deposition. So also it would be seen that per the complainant he had tied the wound of the deceased with a towel but as much has not been stated by either P.W. Khuda Bux or Karam Khan. In fact under cross-examination both these witnesses have admitted that the wound of the deceased was not bandaged by them. Similarly P.W. Karam Khan has also admitted that they did not even take the deceased to the hospital although the conveyance was available with them. In our opinion, this behaviour is most unnatural as the father is expected to do everything in his power to assist his injured son. It would also be seen that though admittedly a number of villagers had come to the scene at the sound of fire not a single independent witness was examined by the police. As there is admitted enmity between the parties, these P.Ws. Require independent corroboration moreso as all the P.Ws. Are related inter se. So also in our opinion, it has not been explained as to how six empties of kalashnikov were found at the scene when according to the complainant only one shot was fired by appellant Pathan Lashari. In this connection it may also be observed that neither the empties recovered at the scene nor the bullet found in the deceased's body were sent for any ballistic test in order to confirm whether they were of a kalashnikov rifle. Finally, it would also be seen that the presence of the complainant and the eye- witnesses at the scene is also doubtful as it has been established through their cross-examination that there was no water share list and the land belonged to their community, hence there was no occasion for them to go at 2 a.m. In the morning for water rotation. In this regard reference can be made to the case of Niaz Ahmad v. State (supra). In our opinion the foregoing contradictions and shortcoming in the prosecution case render it doubtful in nature the benefit of which of course must go to the accused.
18. Insofar as the medical evidence is concerned, no doubt, it certifies that the deceased received one bullet injury on his right thigh as a result of which the main femoral artery and vein were split and femur fractured, however, it is trite law that the medical evidence alone is insufficient to record a conviction since it is only corroborative in nature.
19. For all the foregoing reasons we would acquit the main accused Pathan Lashari while giving him the benefit of doubt. The appeal insofar as he is concerned is allowed. He shall be released forthwith if not required in any other case.
20. As we have acquitted main accused Pathan Lashari while giving him the benefit of doubt, we would also acquit co-accused Abdul Majeed and Lakhmeer as their cases are on the same footing.
In any event they are not attributed any overt act and hence their mere presence at the scene is insufficient to convict them on the theory of common intention/vicarious liability. Such a conclusion becomes even more forceful since only empties of a kalashnikov were recovered from the scene whereas both these accused are stated to be armed with a gun and pistol respectively. Hence the appeal is also allowed insofar this co-accused are concerned. They shall be released forthwith if not required in any other case.
Appeal stands disposed of.