1. JUDGMENT IMAM BUX BALOCH, J.---By this common judgment we intend to dispose of Criminal Appeal No.61 of 2007 and Criminal Revision Application No.82 of 2007 arising out of same impugned judgment dated 17-7-2007 passed by the trial Court.
2. The appellants Khadim Hussain and Allah Warrayo assailed the judgment dated 17-7-2007 passed by learned 1st Additional Sessions Judge, Dadu, whereby learned trial Court convicted the appellants under sections 302(W/34, P.P.C. And sentenced them to suffer rigorous imprisonment for life and to pay fine of Rs.50,000 each and in case of non-payment of fine they will suffer S.I. For six months more. The benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant.
3. The prosecution case according to the F.I.R. Is that on 25-11-2002 at 7-30 p.m. The complainant Mst.
4. Zarina along with her mother Mst. Bebul and her son Naveed went together to meet with Mst.
5. Shabiran for getting permission to bring her on the Eid occasion Where Rasool Bux and his were Mst. Basran also arrived to meet their daughter Mst. Darya Khatoon were of Bhoro and they also came for the same purpose, At the sunset time husband of Mst. Shabiran namely Khadini Hussain and his brother Bhoro, Allah Warrayo and his sister's husband Nazoo son of Ibrahim Palepoto also came. The electric blub was burning: Both the parties requested for permission of their respective girls to which both brothers refused. On refusal Mst. Shabiran and Mst. Darya Khatoon asked their husband. That why they are not allowing them to go to their parents' house which annoyed accused. Nazoo and others. Accused Nazoo instigated the other accused not to leave their wives and kill them. On instigation; of accused. Nazoo, accused Khadim Hussain fired from his pistol at his were' Mst. Shabiran who sustained the injuries on her face and other parts of body and so also accused Allah Warrayo fired from his pistol at Mst. Darya Khatoon who sustained injuries on her face and other parTs of body. Accused-Bhoro caused lathi (stick) blow to the deceased ladies.
6. Both ladies succumbed to the injuries. Complainant then went to the Police Station and lodged the F.I.R.
7. After usual investigation, the case was challaned, after completing the formalities charges was framed at,EXh.9 to which the appellant pleaded not guilty.
8. At the trial SIP Ameer Bux was examined as P.W.I. At Exh.13 A.S.-I. Noor Ahmed P .W.2 at Exh.14. He has produced F.I.R. At Exh.14-A Mst. Zarina P.W.3 as Exh.15, Mst. Bebul.-as P.W.4 at Exh.16, Dr. Noreen Tyabani as P.W.5 at Exh.18., she produced postmortem reports of deceased .Mst. Shabiran and Mst.
9. Darya Khatoon as Exh.18/A and 18/B respectively Mashir Haider Bux as P.W.6 at Exh.20, who produced mashirnama of place of wardat at Exh.20/A reports of deceased Shabiran and Darya Khatoon at Exh.20/B and 20/C, mashirnama of arrest of accused Khadim. Hussain at Exh.20/D. Ali Bux as P.W.7 at Exh.22 who produced mashirnama of clothes of both deceased ladies at Exh.22/A reports of Chemical Examiner and report of ballistic expert at. Exh.22/B and 22/C respectively, Abdullah as P.W.8. At Exh.23. He has produced mashirnama of arrest and recovery from accused appellant Allah Warayo at Exh.23-A, Muhammad Zaman as P.W.9 at Exh.24. After concluding the evidence, statements of appellants were recorded at Exh.26 and 27, Rasool Bux as D.W.1 at Exh.29, Muneer Ahmed as D.W.2 at Exh.30.
10. After hearing the parties learned trial Court passed the impugned judgment as stated above.
11. We have heard Messrs Habibullah G. Ghori and Mr. Aftab Ahmed Gorar Advocate for the appellants, Mr. Naimatullah. Bhurgri, State Counsel and Mr. Faiz Muhammad Larik Advocate for the complainant.
12. Learned counsel for the appellants contended that the prosecution has failed to establish its case beyond any shadow of doubt against the appellants. They further contended that three persons have been shown as eye-witnesses of the evidence i.e.' Mst. Zarina, Mst. Bebul and Naveed son of Mst. Zarina but at the trial prosecution examined two witnesses Mst. Zarina and Mst. Bebul and did not examine Naveed. They further contended that ocular evidence is in conflict with the medical evidence., They further contended that ocular evidence is interested related and hostile and did not inspire confidence. They further contended that the circumstantial evidence has come from interested mashirs who are related to complainant party. They further contended that revolver was foisted upon Allah Warrayo as husband of Mst. Zarina was posted as WHC. They further contended that Rasool Bux father of Mst. Darya Khatoon was examined as D.W.1 who on the contrary supported the defence version. They further argued that motive is shrouded in the mystery and the prosecution has failed to establish the motive. In the last, learned counsel for the appellants argued that the prosecution has failed to establish its case beyond any reasonable doubt and the defence has succeeded to create doubts and dent in the prosecution case. They have relied on the cases reported as Sahib Dino v. The State (2000 PCr.LJ 1191), Asghar v. The State (1999 PCr.LJ 20), Irshad and another v. The State (1999 SCM R 1030), Abdullah and another v. The State (1999 SCM R 1034) and case of Iftikhar Hussain and others v. The State (2004 SCM R 1185).
13. On the other hand Messrs Faiz Muhammad Larik, learned counsel for the complainant and Naimatullah Bhurgri, State Counsel, argued that the offence had taken place in the house of appellants in presence of witnesses. The ocular evidence is in conformity with the medical evidence though the ocular evidence has come from related witnesses but they are natural witnesses. They further contended that there was no enmity of the witnesses to falsely involve the appellants in double murder case. They further argued that on the same day appellant Allah Warrayo was arrested and a revolver was recovered from his possession. They further argued that the prosecution succeeded to establish motive as Mst. Bebul and Mst. Zarina along with by Naveed went to the house of appellants for taking the permission that there was Eid Celebrations and Mst.
14. Shabiran was their daughter. They further argued that Rasool Bux father of deceased Darya Khatoon during trial has made compromise with the appellants outside the Court therefore, he and his were deliberated and intentionally. Have not given evidence against the appellants. In the circumstances. They argued that the prosecution has succeeded to establish its case beyond any shadow of doubt. They further contended that the ocular evidence is inspiring-confidence and trustworthy and having no motive to falsely involve the appellants the related evidence can not be ignored. They have relied Upon the following case-laws:--
(1) Manzoor Ahmed v. The State (1999 SCM R 132).
(2) Talib and 2 others v. The Crown (PLD 1955 Federal Court 42)
(3) Imam Ali alias Emam Sadar and others v. The State (PLD 1966 Dacca 83).
(4) Letha Ram v. Wram and others (1986 SCM R 1056).
15. After hearing learned counsel for the parties we have scanned the entire evidence with their assistance. P.W. Mst. Zarina is sister of deceased Mst. Shabiran she stated that on the day of incident i.e. 25-11-2002 at 7-30 p.m. Along with her mother Mst. Bebul and her son Naveed Ahmed went to K.N. Shah to call her sister Mst. Shabiran for Eid-ul-Azhra Celebrations at their native village Sitta. She further stated that they requested brother accused Khadim Hussain to grant permission to deceased Mst. Shabiran for celebrating Eid Festival and at that time father of mother of deceased Mst. Darya Khatoon were also available in the house. She further stated that they have dome for grant of permission for their daughter Mst. Darya Khatoon for celebrating the Eid Festival.
16. She Further stated that both accused/appellants refused to which Mst. Shabiran and Mst. Darya Khatoon objected on which Khadim Hussain took out revolver and made several fires upon deceased Mst. Shabiran who expired at the spot. Accused Allah Warrayo made fires at his were Mst. Darya Khatoon who also received injuries and died at the spot. She stated that the faces of both the deceased ladies were damaged. She stated that this offence has taken place on the instigation of co-accused Nazoo. She further stated that she has lodged F.I.R. At Police Station. She was cross-examined by the defence counsel. She stated in her cross-examination that appellant Khadim Hussain was a constable and appellant Allah Warrayo was running a shop of vegetable.
17. She stated that she cannot say how many fires were made by the appellant/accused Alah Warrayo. She admitted that there are several houses of different communities in the said muhalla where house of appellant/accused is situated. She stated that she did not identify those persons who after the incident came at the place of wardat. She further stated that police came at the place of incident on the same time.
18. Mst. Bebul stated in her evidence that on 25-11-2002 at 7-30 p.m. She along with her daughter Mst.
19. Zarina and her grandson Naveed went together for taking : permission for deceased Mst. Shabiran from his son-in-law Khadim Hussain in order to celebrate Eid festival in their village where parents of Mst. Darya Khatoon also came and they also asked accused Allah Warrayo for granting permission to Mst. Darya Khatoon for celiberation of Eid-ud-Azha festival. She further stated that both brothers refused and on the instigation of accused Nazoo, Khadim Hussain fired upon Mst.
20. Shabiran and so also appellant/accused Allah Warrayo fired at Mst. Darya Khatoon. Both the ladies succumbed to the injuries at the spot and they expired. She further stated that accused Bhoro caused danda blows upon the faces of both deceased ladies she was cross-examined in which she stated that it is correct that accused Allah Warrayo was running vegetable shop and appellant Khadim Hussain was serving in Police Department as constable. She also stated that parents of Mst. Darya Khatoon also had come at the same time and they also asked appellant/accused Allah Warrayo for grant of permission for deceased Mst. Darya Khatoon to celebrate Eid festival in their village. She further stated that police arrived at the place of incident at 9-30 p.m. She further stated that on the following day police recorded her statement under section 161, Cr.P.C.
21. Dr. Noreen Tebani who conducted post-mortem report of both the deceased. Was examined. The evidence of Dr. Noreen Tebani is in conformity with the ocular evidence on the point of receiving injuries as she stated in her evidence that both the deceased ladies had received Fire-arm injuries on their person.
22. P.W. Hyder Bux is mashir. He is his evidence stated that he has an electric shop and was busy in K.N.
23. Shah Town where he came to know about murder of deceased ladies. He along with his brother rushed to place of incident where 30/35 persons were already available. He further stated that dead bodies of both the ladies were lying in the house of appellants/ accused. He 'further stated that in his presence the mashirnama of place of wardat and recovery of three empty bullets was prepared. He further stated that police prepared inquest report of dead body of Mst. Shabiran. He further stated that they also saw another dead body of Mst. Darya Khatoon and three empty bullets were recovered from the place where dead body of Mst. Darya Khatoon was lying and also taken blood-stained earth. Such mashirnama was prepared at the spot. He further stated that on the fourth day of incident police called him and co-mashir Muhammad Bux and accompanied them to K.N. Shah Mehar Bus-Stand wherefrom Khadim Hussain was arrested and such mashirnama was prepared. He was cross-examined by the defence. He stated that he did not know Mst. Zarina. At the time of incidence he was working as electrician in K.N. Shah Town along with his brother Muhammad Bux. It was .About 8-30 p.m. When they came to know about the incident. He admitted that the dead bodies of both the deceased ladies were lying in separate rooms.
24. P.W. Ali Bux stated that on 25-11-2002 he was posted as A.S.-I. In Investigation Branch K.N. Shah Police Station and complainant also appeared in his office at K.N. Shah then complainant party proceeded to place of incident/wardat where dead bodies of Mst. Shabiran and Mst. Darya KhatOon were lying inside the two separate rooms. He prepared inquest report of both the dead bodies. He also recovered empty cartridges and one missed bullet from the place where dead body of Mst. Bashiran was lying and also recovered empty cartridges from the place where dead body of Mst. Darya Khatoon was lying. He stated that he diSpatched both the dead bodies to Taluka Hospital K.N. Shah. He stated that he prepared mashirnama of recovery and clothes and inquest reports of both the dead bodies. He arrested accused Khadim Hussain from Bus-Stop K.N.
25. Shah in presence of mashirs. He stated that he recorded statements of Mst. Basran, Mst. Bebul and Ghulam Rasool under section 161, Cr.P.C, and after completing the investigation submitted challan.
26. He further stated that he sent the revolver and empty cartridges and blood-stained earth to the Chemical Analyser. He was cross-examined- by the defence. He stated that place of incident is situated in the Madina Colony K.N. Shah. He denied the suggestion that one of the deceased is relative of WHC Muhammad Achar. He also denied the suggestion that at the time of incident accused Khadim Hussain was working as constable at the police picket of Police Station Mehar. He denied that Rasool Bux and Mst. Basran, father and mother of deceased Mst. Darya Khatoon informed him that some dacoits have committed murder of their ladies. He also denied the suggestion that accused person Khadim Hussain was informer of the police, hence dacoits are annoyed.
27. SIP Inspector Abdullah stated in his stated that on 25-11-2010 he was posted as S.H.O. Police Station K.N. Shah and on the same day he left the Police Station vide Entry No.24 at 1900 hours for patrolling along with his subordinate staff and when they reached near Dubai Hotel K.N. Shah, he heard fire from Madina Colony K.N. Shah. He rushed to Madina Colony along with staff where people were available who informed him that one person after killing a man was going towards Gural Shah Graveyard. He along with staff chased the accused and succeeded in arresting him at-main road who was identified to be Allah Warryo son of Jan Muhammad Pulpoto. From his personal search one revolver was recovered said revolver was blood-stained.
28. He prepared mashirnama of recovery and arrest in presence of mashirs PC Muhammad Zaman and Ghulam Muhammad. In cross-examination he stated that he has not produced the Entry No.24. He admitted that Dubai Hotel is situated in K.N. Shah Town. He admitted that he has not taken the private persons of the locality after receiving information. He was cross-examined but the defence could not succeed to sort out any material discrepancy from his evidence.
29. Last witness is Muhammad Zaman was mashir of arrest and recovery of revolver from accused Allah Warrayo and he also supported the version of Inspector Abdullah.
30. From the perusal of the material placed on record we found that the .Ocular evidence is unimpeachable, trustworthy and inspire-confidence. We found no material discrepancy in the evidence of P.Ws. Mst. Zarina and Mst.Bebul. They are unanimous on all aspects of the case. That in their presence fateful incident had taken place. The defence could not point out any material discrepancy in the evidence of two eye-witnesses. Though they are sister and mother of the deceased Mst. Shabiran but their evidence after careful consideration is found trustworthy. Mere relationship with the deceased is no ground to discard trustworthy evidence of Mst. Bebul and Mst.
31. Zarina. It is admitted fact that the dead bodies of the deceased ladies Mst. Shabiran and Mst.
32. Darya Khatoon were lying in the house of the appellants. The appellants had not denied the fact that dead bodies of both the ladies had not been found in their house. Stand taken by the appellant Khadim Hussain that at the time of incident he was posted at the police picket of Police Station Mehar but he has not produced any material document or evidence to justify his plea of alibi. Besides, there is also circumstantial evidence against the appellant Allah Warrayo as it is a day time incident and he was arrested when he was running from the place of incident. He was chased and was arrested at the main road and was found having in possession of blood-stained revolver. The recovery witnesses are unanimous on the point of arrest and recovery of revolver from him. The defence was not able to show any dent in the evidence of P.W. Inspector Abdullah and P.W. Muhammad Zaman. Motive has been established by the ocular evidence which is consisting upon Mst. Zarina and Mst. Bebul who stated that on the day of incident they went to the house of appellants for grant of permission of deceased Mst. Shabiran to celebrate Eid Festival in their village. The ocular evidence as stated above is trustworthy and inspire confidence and motive as from the evidence of both the P.Ws. Is established. That the appellants were annoyed when Mst.
33. Shabiran asked that as to why they are not allowing them to celebrate Eid festival with their parents.
34. As regards the case of Iftikhar Hussain (Supra) relied upon by the learned counsel for the appellant is concerned, it is a case of acquittal appeal which is distinguishable from the facts and circumstances of the case in hand. Case of Muhammad Irshad and others (Supra) relied upon by the defence counsel is that the honourable Supreme Court was of the view that evidence of interested witnesses must come from unimpeachable source to support .Interested witnesses. In the present case evidence of Mst. Bebul and Mst. Zarina is trustworthy and inspire confidence. The defence has failed to point out any material discrepancy in their evidence. Facts of present appeal from the facts and circumstances of case of Iftikhar Hussain (Supra) is on different footings. Cases M Asghar and Sahib Dino (Supra) relied upon by the defence counsel are also on different footings and the judgment was recorded by the Single Bench which is not binding upon the Division Bench of this Court. In the case of Manzoor Ahmed (Supra) the honourable Supreme Court while dismissing the appeal was of the view that the ocular account was furnished by eye-witnesses who were the inmates of the house where the occurrence took place and the same was quite natural consistent and trustworthy and was corroborated by the recovery of blood from the spot, medical evidence. This case is very much applicable to the facts and circumstances of the case in hand.
35. After careful and minute examination of the evidence available on record and case-law relied upon by the learned counsel for the parties we are of the considered opinion that the prosecution had succeeded in establishing guilt of appellants beyond any shadow of doubt. Appellants had committed murder of two innocent ladies on a petty matter without any cause or reason and there is no denial from the defence that the dead bodies of both the deceased ladies had not been found lying in the house of the appellants the defence evidence adduced by the appellants is not confidence inspiring but interested and hostile and when we take both the evidences in juxtaposition we found that evidence produced by the prosecution is reliable and trustworthy and evidence adduced by the defence is not trustworthy and interested and partisan.
36. After evaluating the evidence we are of the considered view that the prosecution has succeeded in establishing its case beyond any shadow of doubt. The trial Court has already taken lenient view by awarding lesser punishment to the appellants therefore, we see no merits to interfere in the impugned judgment hence the conviction and sentence awarded to the appellants by the trial Court is hereby upheld. Consequently, Criminal Appeal No.61 of 2007 is hereby dismissed and in view of the above discussion connected Criminal Revision Application No.82 of 2007 does not call for enhancement of conviction and sentence awarded to the appellants by the trial Court which is also dismissed.