' SHAHID ANWAR BAJWA, J.---Appellants were tried for an offence under sections -302, 324, 504, 114, 147, 148 and 149, P.P.C. And vide judgment dated 15-8-2011 while three co-accused were acquitted The appellants were convicted for an offence under section 302(c) read with section 149, P.P.C. And sentenced to suffer rigorous imprisonment for 14 years each and also to pay compensation of Rs,.25,000 each to the heirs of deceased and in case of default in payment of compensation to further undergo simple imprisonment for 6 months each. The appellants were also sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs,.2,000 each as Daman to the Injured Ayaz for committing offence under section 337-F(ii), P.P.C. And in case of default to suffer simple imprisonment for 2 months.
2. F.I.R. No,6 of 2006 was recorded at Police Station Moundar, District Dadu on 20-5-2006 at 1610 hours for an incident alleged to have taken place about 1.1 hours earlier. Complainant stated that day before the incident a quarrel has taken place between his cousin and Muhammad Moosa Shahani on account of cattle and Muhammad Moosa had received injuries and consequently a case was registered by Muhammad Moosa. Shahani against cousin Abdul Kareem. On the eventful morning complainant, his cousin Abdul Kareem and two relatives left for Katcha area in order to get firewood when at 0530 a.m. They reached a but where they stopped for drinking water and resting for a while, group of 7 persons reached there. Appellant No,1 is alleged to have been armed with shotgun, appellant No,2 is alleged to be empty-handed, appellants Nos.3 and 4 are alleged to be armed with cudgels and hatchets and others ' were also having various arms. Appellant No,2 is alleged to have given hakkal and instigated the other assailants. Upon such instigation, co- accused Mirzo Shahani fired from Kalashnikov at Abdul Kareem which hit him in his right armpit near nipple, co-accused Wali Muhammad is alleged to have fired from his pistol at Abdul Kareem which hit his right elbow, co-accused Soonharo Shahani fired from his shotgun at Abdul Kareem which hit him on elbow of right arm, and while crying Abdul Kareem fell down. Appellant No,1 is alleged to have made straight fire from his shotgun at Ayaz Shahani which hit him in the elbow of his right arm who also making cries fell down. It is then stated in the F.I.R. That accused persons armed with cudgel and hatchets caused cudgel and hatchet blows to Ayaz on other parts of his body. Another co-accused Adam Shahani fired at complainant. Cries were raised and the accused persons are alleged to have run away while abusing. Abdul Kareem was found dead at the spot.
Injured Ayaz was made to stay with dead body and a person went to inform the police. Thereafter F.I.R. Was registered. In challan submitted in Court only present appellant No,1 was shown in custody while appellant No,2 was shown as absconder along with others and three unknown persons.'
3. Being not satisfied with police investigation complainant filed direct complaint against 10 accused persons including the present 4 appellants and stated at the end of his complaint that during the course of investigation, to the investigation team the complainant exposed the present appellants Nos. 3 and 4 and another being involved in offence and also identified them but police did not challan them. Therefore direct complaint was filed. After recording of statement under section 200, Cr.P.C cognizance was taken and on October 15, 2009 charge was framed against 7 accused persons in the following words:-- "CHARGE I, Abdul Hameed Qureshi, IIIrd Additional Sessions Judge Dadu, do hereby charge you
(1) Soonharo son of Ghulam Hussain Shahi.
(2) Manthar son of Illahi Box Shahi.
(3) Suhbat son of ,Ghazi Khan Shahani.
(4) Adam son of Ghazi Khan Shahani.
(5) Ghulam Hussain son of Ghulam Qadir Shahani.
(6) Jeewan son of Ghulam Qadir Shahani.
(7) Allah Warayo son of Muhammad Moosa Shahani as follows:- ' That on 20-5-2006 at 5-00 a.m., you along with absconding co-accused Mirzo,. Wall Muhammad and Ghulam Anwar alias Bagro, in front of the thatched of Akhtar Punjabi, deh Shahani Taluka Dadu, duly armed with guns, K. K, rifle, pistols, hatchets and lathies in prosecution of your common object formed an unlawful assembly in order to commit rioting and thereby committed an offence punishable under sections 147, 148,'149, P.P.C., and within the cognizance of this Court.
' I, hereby further charge you, that on the same date, time and place you being the members of unlawful assembly in prosecution of common object, you intentionally insulted the complainant party, knowing it to be likely that such provocation will cause them to break the public peace, and thereby committed an offence punishable under section 504, P.P.C., and within the cognizance of this Court.
' I, hereby further charge you that on the said date, time and place being the members of unlawful assembly in prosecution of your common object, you accused Ghulam Hussain abetted other co- accused not to spare the complainant party and commit their murders and thereby committed an offence punishable under section 114, P.P.C., and within the cognizance of this Court.
' I, hereby further charge you that on the same date, time and place being, the members of unlawful assembly in prosedutiOn of your common object you accused Adam fired from your rifle straightly at complainant and attempted to his commit his Qatl-eamd, which missed and you accused Manthar fired from gun directly at Ayaz which hit on elbow of his right arm and accused armed with lathies and hatchet also caused him lathies and blunt hatchet blows on muscles of arms and other parts of the body and did an act with such intention and under such circumstance, that, if you by that act caused qatl, you would be guilty of Qatl-e-amd, and thereby committed an offence punishable under section 324, P.P.C., and within the cognizance of this Court.
' I, hereby further charge you, that on the same date, time and place being the members of unlawful assembly in prosecution of your common object co-accused Wali Muhammad on the abetment of you accused Ghulam Muhammad committed Qatl-eamd of Abdul Kareem by means off re-arm injuries, and thereby committed an offence punishable under section 302, P.P.C., and within the cognizance of this Court."
4. At the trial complainant was P.W.1, injured Ayaz Ali, was P.W.2, Dr. Taufeeq Ahmed Senior Medical Officer, Civil Hospital Dadu was P.W.3, HC Police Line Dadu Jamaluddin was P.W.4, ASI P.S. Khudaabad Dadu Imdad Hussain was P.W.5 who took dead body and handed it over to complainant, mushir Haji Ghulam Rasool was P.W.6, first I.O. SIP/S.H.O. P.S. Jakhri, Dadu Ghulam Nabi was P.W.7 and second I.O. S.H.O. P.S. Rajodero, Dadu Aijaz Ali was P.W.B. Thereafter, statements under section 342, Cr.P.C. Were recorded and finally vide impugned judgment while 3 co-accused were acquitted present appellants were convicted as stated above.
5. Learned counsel for appellants made following submissions:--
(i) The incident is alleged to have occurred at 5-30 a.m. F.I.R. Was recorded at 1610 hours and mashirnama indicates that F.I.R. Was lodged after investigation. Learned counsel relied upon Mashal Khan and another v. The State (1997 PCr.LJ 478) and Jamshed alias Jammi v. The State and others (2004 PCr.LJ 1239).
(ii) Learned counsel submitted that there are two eye-witnesses to the incident being complainant and injured Ayaz Ali and there is no independent witness. He submitted that no conviction can be passed on such evidence. Learned counsel relied upon Hadi Bakhsh v. The State (PLD 1963 [W.P.] Karachi 805).
(iii) Learned counsel further submitted that in the F.I.R.There is no allegation whatsoever against the present appellants of having fired at or caused any injury to the deceased. He submitted that allegation against appellant No,1 is that he fired with his gun at injured Ayaz All which hit him at elbow of his right arm and then appellants Nos.3 and 4 are alleged to have given blunt side hatchet blows and it is stated that appellant No,4 has given Lathi blow but it is not stated in F.I.R. As to what part of body such blows were given. In this regard he submitted that ocular and medical evidence is variance. Learned counsel relied upon Ram Narain v. State of Punjab (AIR 1975 SC 1727), Bagh Ali v. Muhammad Anwar and another (1983 SCMR 1292), Yousif v. The State (PLD 1988 Karachi 521) and Esso and others v. The State (2011 YLR 913).
(iv) Learned counsel submitted that benefit of doubt must be given in such situation and he relied upon Ayub Masih v. The State (PLD 2002 SC 1048) and Faheem Ahmed Farooqui v. The State (2008 SCMR 1572). Learned counsel relied upon Taha v. The State (2003 YLR 166) and Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) for his contention that improvements in statements create doubt.
6. Learned counsel for complainant submitted that evidence has been consistent regarding role of the present appellants. He submitted that common intention is evident from contents of the F.I.R., from contents of direct complaint and from preparation in that they came duly armed. Learned counsel submitted that specific role has been assigned to each of the accused persons and evidence is consistent in this regard.
7. Learned Assistant Prosecutor-General Sindh submitted that role of the appellants is based on common intention. There were three ingredients in this regards; common intention, preparation and commission. All the three ingredients have been duly made.
8. I have considered submissions made by the learned counsel for parties and have also gone through the record as well as case-law cited at the bar.
9. First contention of Mr. Kazi was that F.I.R. Was lodged after investigation. The incident occurred at 5-30 a.m. And the F.I.R. Was lodged at 4-10 p.m. It is stated in the F.I.R. That after incident had occurred the complainant and injured stayed with dead body, of deceased Abdul Kareem and Ghulam was sent to inform the police and police reached at spot and conducted necessary formalities in respect of dead body and gave letter for hospital treatment of injured Ayaz. Inquest report [Exhibit 14(C)] indicates that dead body was seen by the police at 1015 hours. Learned counsel for appellants relied upon Mashal Khan's case (supra). Facts of the case were that complainant, his brother (deceased) and nephew were present near a water tank and the deceased being valveman of the Public Health Engineering was opening the valve for supply of water when Sher Ali Khan accused asked the deceased to desist from opening the valve. An altercation took place which led to exchange of abuses. Accused Sher Ali Khan incited his two brothers to kill deceased on which Mohammad Nawaz Khan fired a shot at deceased but missed.
Thereafter Mashal Khan fired at deceased and injured him. Complainant and his nephew took deceased to their house. Accused persons fired, at the house. After half an hour deceased succumbed to his injuries. There was three hours delay in recording of F.I.R. It was observed that it was obvious that F.I.R. Was lodged after consultation and deliberation. A.S.I. Muhammad Ayaz Khan deposed that upon hearing firing he left for village of complainant party and it was observed by Division Bench of Peshawar High Court that since. F.I.R. Was recorded on preliminary investigation its authenticity was questionable. Thereafter Court appraised the evidence and came to the conclusion that the charge had not been proved. Second case relied upon by learned counsel was Jamshed alias Jammi (supra). Facts of the case were that in respect of incident in which one person had been killed, Investigating Officer proceeded to the spot, prepared injury sheet and inquest report of, the deceged and after dispatching it to mortuary for postmortem, secured blood-stained earth, two empties, prepared site plan and recorded statements of prosecution witnesses. A Division Bench of Peshawar High Court observed as under:-- "The F.I.R. There is no denying the fact, being the basic document in a criminal case is vested with much greater sanctity but where it was admittedly recorded after preliminary investigation it loses its sanctity and even the probative worth and as such becomes a suspect document rather than the one giving a natural, spontaneous and straightforward account of the occurrence. The statement of P. W. Muhammad Akbar is quite clear in this behalf who unreservedly admitted in his cross-examination that the Investigating Officer after seeing the dead body and inspecting the spot recorded the report of P.W. Muhammad Ramzan. Similarly the statement of P. W. Ramzan is more elaborate in this connection. Who too admitted in his cross-examination that the S.H.O.
Recorded the report after spot inspection and recovery of empties and a broken striker of pistol,therefore, we hold that this document does not deserve that sanctity, it otherwise could have and is thus, not worthy of credence in a case involving capital punishment moreso when none of the witnesses bothered to report the incident. It was held in the case of Mashal Khan and others v. The State (supra) that where the F.I.R. Was recorded after preliminary investigation, if cannot be treated either sacrosanct or authentic. The very failure of the eye-witnesses so-called to report the incident will further prove that they were neither natural nor probable witnesses of the occurrence nor their presence at the crucial time appeals to reason particularly when they had no doubt as to the identity of the deceased as well as that of the assailant."
10. In the present case before F.I.R. Was registered mushirnama of injury was also prepared and so mushirnama of dead body and place of occurrence. This could raise some questions recording authenticity of F.I.R. And the case-law relied upon by Mr. Kazi learned counsel for appellants supports his view in this regard but in both the cases relied upon by Mr. Kazi conducting some investigations before recording F.I.R. Has not been considered as the sole ground for acquittal.
Therefore, fact that some investigation conducted before recording of F.I.R. Would not, standing alone, be sufficient to come to the conclusion that the incident as alleged had not occurred. Such situation can only be held to create small dents to story of the prosecution and totality effect of it has to be evaluated in the light of other pieces of evidence.
11. Next contention of Mr. Kazi was that there are essentially two eye-witnesses of the incident; one is complainant P.W.1 Ali Afzal and other is injured Ayaz P. W.2. Admittedly injured Ayaz is relative of the complainant and therefore of the deceased. Contention of the learned counsel for appellants was that since two eye-witnesses are related to each other no reliance can be placed on such evidence. Learned counsel for appellants relied upon Hadi Bakhsh v. The State (PLD 1963 [W.P.] Karachi 805). Material observations are as under:- "As already indicated, the relations of the appellant and Saif-udDin had rather been strained for some time before the occurrence under consideration. As a matter of fact, it appears, that the two families were at logger heads and had been trying to involve each other in some serious trouble.
Therefore, it is obvious that the version given out by Saif-ud-Din's brother Sadoro and his cousin Ghaus Bakhsh could not safely be relied upon against the appellant unless and until it is otherwise sufficiently corroborated by reliable evidence."
12. There cannot be any cavil to the above proposition. Mere fact that the witnesses are related to each other does not necessarily make them interested witnesses. Their evidence just cannot be brushed aside merely for the reason that they are related to each other. However, sufficient corroboration of such evidence must be sought through other pieces of evidence available on record.
13. In the F.I.R. Allegation against Manthar is that he is one of the 9 persons. It is alleged that he was armed with shotgun. Then it is alleged that he fired with shotgun at Ayaz which hit him in the elbow of right arm who made cry and fell down. He is not alleged to have repeated his fire. It is alleged in F.I.R. And in evidence that those armed with hatchets and lathies gave hatchet and lathi blows to injure Ayaz. Throughout evidence there is no statement whatsoever that Manthar in any case participated in murder of deceased Abdul Kareem. No evidence has been brought about that the accused had prior to the incident decided to murdef Abdul Kareem and Manthar was part of this conspiracy. Mere fact that Manthar was with those who went to murder Abdul Kareem is not sufficient to come to the conclusion that Manthar had intention to commit murder and knew that murder was to be committed. Therefore as far as allegation under section 302, P.P.C. Is concerned, same is not proved against appellant No,1 Manthar. However, witnesses have been unshaken and unanimous on the point that Manthar was armed with a shotgun and he fired at injured Ayaz.
Therefore, as far as his conviction and sentence under section 337-F(ii), P.P.C. Is concerned, nothing wrong can be found with conclusion of the Courts below. I, therefore, maintain his conviction and sentence under section 337-F(ii), P.P.C. While acquit him in the offence under section 302(c), P.P.C.
14. The allegation against appellant No,2 Ghulam Hussain is that though he was empty-handed when he reached at the place of incident he while abusing the complainant party stated that yesterday your persons had quarreled and injured persons of accused side. He instigated his colleagues to catch hold of the complainant party and to not spare them and to kill them and thereafter incident of murder as alleged had occurred.
15. P.W.1 in this regard stated as under:- "Accused Haji Ghulam Hussain instigated other accused persons to kill us whereupon accused Mirzo directly fired from his K.K. Upon us which hit to Abdul Kareem near right side nipple, accused Sunharo fired from his DBBL gun which hit Abdul' Kareem at the calf of the right leg, accused Wall Muhammad directly fired from his pistol which hit upon Abdul Kareem which 'hit at the elbow of right arm."
16. P.W.2 stated as under:- `Accused Ghulam Hussain abused us and then accused Mirzo Shahani direct from his K.K. Directly at Abdul Kareem which near right nipple, accused Wall Muhammad directly fired from his pistol upon Abdul Kareem which hit him the elbow of right arm, accused Sunharo fired from his DBBL gun upon Abdul Kareem which hit at calf of his right leg."
17. Therefore, two witnesses have been unanimous on the point that instigation was given by Haji Ghulam Hussain and it was upon his instigation that three persons fired at the deceased. As far as firing is concerned, medical evidence agrees with ocular evidence. Therefore, as far as conviction and sentence in an offence under section 302(c) read with 149, P.P.C. Is concerned, against appellant No,2 the evidence has successfully established that he went with an assembly though empty-handed and almost acted as a leader who led a pack of the blood hounds. Therefore, his conviction and sentence in offence under section 302(c), P.P.C. Is maintained. However, as far as his conviction and sentence under section 337-F(ii), P.P.C. Is concerned, evidence indicates that his instigation was to kill and if he had also intention to cause injury to Ayaz while as is alleged in F.I.R. The lathi and hatchet blows were being given by appellant Ghulam Hussain did not intervene and, therefore, he cannot be said to be complicit in causing injury to Ayaz. This bring me to the case of appellants Nos.3 and No,4 namely Jeewan and Allah Warayo. They were alleged to be armed with Lathi and hatchet respectively and it is alleged that they gave lathi and hatchet blows to Ayaz who had already been hit at his arm by appellant. No,1 Manthar. Medical evidence described the following injuries:--
(1) Firearm injury of 0.5. c.m. x 0.3 cm on the right fore-arm posteriorly below elbow joint (wound of entry)
(2) Fire-arm injury of 1.00 c.m. x 0.3. 2 inches below from first injury. Nature of the injuries were Ghayr Jaifah Badiah under section 337-F(ii) caused by firearm ,injuries.
18. There is no lathi or hatchet injury described in the medical evidence. Moreover, Mr. Kazi is perfectly right in arguing that no specific injury is stated in the F.I.R. Or by any witness as having been caused lathi or hatchet. In fact there is no such injury. Consequently, conviction and sentence of appellants Nos.3 and 4 for offence under section 337-F(ii), P.P.C. Cannot be maintained and for reasons that have been given in the case of appellant No,1 Manthar their convictions and sentences for offence under section 302(c), P.P.C. Is also not maintainable.
19. Result of the above discussion is that this appeal is accepted in respect of appellant No,)
Jeewan and appellant No,4 Allah Warayo. They are acquitted because prosecution has failed to establish its case against them. They are ordered to be released forthwith if not required in any other case. As far as appellant No,1 Manthar is concerned, his conviction and sentence for an offence under section 337-F(ii), P.P.C. Are maintained but his conviction and sentence under section 302(c), P.P.C. Are set aside and on that score he is acquitted by giving him benefit of doubt. As far as appellant No,2 Ghulam Hussain is concerned, his conviction and sentence for an offence under section 302, P.P.C. Are maintained but his conviction and sentence under section 337-F(ii), P.P.C. Are set aside.
20. Criminal Appeal No .362 of 2011 is disposed of in the above terms.