G. M. KOUREJO,J.-This is an appeal under section 417, Cr. P. C. By the State and is directed against the judgment of acquittal passed by Ex-Officio Additional Sessions Judge, Jacobabad (Mr. Fakhruddin Haleemuddin Shaikh) acquitting the three opponents of offence punishable under section 302 read with section 34, P. P. C.
And 13-D of Arms Ordinance for causing murder of Muhammad Rafique Bajkani by firing at him with gun on 25- 12-1972 at 1-00-p.m., in Deb Baragh near the 'Karia' of Noor Hassan Bajkani, Taluka Kandhkot.
2. The relevant facts for the disposal of this appeal are that about 12 months prior to the, incident which took place on 25-12-1972, one Dhani Bux declared his wife Mst. Allah Dini to be 'kari' with Hidayatullah brother of the .Complainant Inayatullah. She was sister of opponents Basham and Jafferan. Dhani Bux drove her away from his house. Hidayatullah apprehended danger to his life and he went into hiding. The parties owned land in deh Sonwah, Taluka Kandhkot. They were also living in that deh. Due to fear of the opponents the complainant Inayatullah migrated from there and settled in village Haji Abdullah Bajkani. Dhani Buz at that time was working as Jamadar on the land of complainant Inayatullah which he owned jointly with him. Noor Hassan Khan Bajkani was their mukadam' and was, therefore, being approached by Inayatullah to bring about settlement between the parties on accovtnt of dispute of `Kayo Kari' affair. Noor Haisan_Khan tried but failed. On 24-12- 1972, one day before. The incident, the deceased Muhammad Rafique filed under section 107, Cr. P. C.
Proceedings against Dhani Bux and others at Kandhkot Police Station with the result that Dhani Bux and Sathi brother of the opponent Basham were arrested and challaned - in the . Court of Mukhtiar kar and r. C. M., Kandhkot, The opponents resented the arrest and felt aggrieved.
3. On the following day; $5-12-1972, the complainant Inayatullah, deceased Muhammad Rafique, P. Ws.
Muhammad Bux and Ruknuddin decided to go., to approach Noor Hassan Khan again for faisla with the opponents. Complainant Inayatullah was asked to go in advance to the village of Noor Hassan Khan at the distance of about three miles away from their village to ask him to wait for them. Inayatullah went ahead and Muhammad Bux, Ruknuddin and Muhammad Rafique followed him subsequently. Inayatullah did not find Noor Hassan Khan in the village and his servant informed him that. He had gone out and was to come shortly.
Inayatuliah, therefore, waited there. After some time he went out to ease himself and reached the 'Karia' of Noor Hassan Khan at a distance of about two survey numbers from the village of Noor Hassan Khan. When he reached the `Karia' he heard gun reports. He saw the opponents running away at a distance of about three survey numbers alongwith Nitamuddin absconder after having fired with guns at Muhammad Rafique who was coming alongwith Muhammad Bux and Ruknuddin to Noor Hassan Khan's village Muhammad Rafique fell down injured as a result of five gun shots fired at him by the opponents. .. Muhammad Bux and Ruknuddin were present and they related the incident to him informing him that three opponents. Rasham, Jafferan and Wasgan alongwith abscondet Nizamuddin suddenly emerged out from .a 'Karia' and on their passing by fired on Muhammad Rafique five shots. With guns resulting in his instantaneous death. Mdhammad Bux and Ruknuddin waited there, whereas Inayatullah went to Tangwani Police Station to lodge the first information report.
4. Mr. Muhammad Panah A. S: I. P. Recorded his first information report on the same day at 4-00 p.m. At Tangwani Police Station which was at a distance of about 8 miles away from the scene of offence. He visited the scene of offence accompanied by Inayatpllah complainant and secured blood-stained earth from the place were the dead body of Muhammad Rafique was lying on the bank of Noor Hassan Khan's 'Karia' about 5 survey numbers away from the village. Five empties were also lying on the scene of offence. They were secured and prepared into sealed parcel in presence of mashirs Usman and Karim Bux. Inquest was also held on the dead body of deceased Muhammad Rafique. The dead body was despatched through police constable Rehmatullah to Medical Officer, Civil Hospital, Ghouspur, for Post-mortem examination. Statements of Muhammad Bux and Ruknud--din were recorded. A. S. 1. P. Recorded the statement of Noor Hassan also. He also leached the houses of opponent, arrested the opponents Basham and Jafferan on 30-12-1972 in Deb Methal. He recovered licensed gun of Basham and prepared it into sealed parcel. He sent the gun and the empties contained into sealed parcels to the Ballistic Expert for examination and report. Opponent Wassand was arrested at Karachi.
On 7-10-1973.
5. Dr. Bhemandas Medical Officer of Ghouspur Dispensary condacted the post-mortem on the dead body of Muhammad Rafique and found the following external injuries: "A gunshot wound 2" x 2' abdominal cavity deep on right lumba region. Edges were inverted. Charring was present with multiple gunshrot wounds each 1/10' in diameter skin deep in an area of 1" around the entrance wound.
(2) Two gunshot wounds each J' in diameter chest cavity on back below the right scapula. Edges were inverted with multiple gunshot wounds each 1/10' in. Diameter x skin deep in an area of 2" around the entrance wound.
Charring present.
(3) Two gunshot wounds each 1,/3' in diameter x chest cavity deep on the back of right-side. Edges were inverted. No. Charring. Both wounds of entry.
(4) Two gunshot wounds each 1/3' in diameter x -chest cavity deep back left side. Edges inverted. No charring both of entry.
(5) One gunshot wound 1/3' in diameter X fracturing nasal and facial bones on inner latitheous of right eye.
Edges inverted. No charring. It was wound of entry and corresponded with exit wound left side 2' infront of left pinna. No charring.
(6) Multiple gunshot wounds each 1/10' in diameter x superficial skin deep on the front of chest and the abdomen. No charring.
(7) Five gun shot wounds each 1/10' in diameter in the superficial skin deep on the front and medial side of the left knee and left leg. No charring.
On internal examination it was found 6th, 8th and 9th ribs on the right side underlying Injuries Nos. 2 and 3 fractured 5th and 7th ribs on left side under Injury No. 4 were fractured. Pleurea, right lung, left lung and heart were punctured. Abdominal walls,, peritoneum, small intestines and liver were punctured. Stomach contained undigested food, indicating that the death had occurred within two hours of the last meal."
6. The opponents Basham and Jafferan have denied the commission of the offence. They further denied that Mst. Allah Di ni. Was at all related to them or that she was at all wife of Dhani Bux. They have also denied that she was declared kari with Hidayatullah brother of Irayatullah. They have further alleged that the proceedings under section 107, Cr. P. C. Allegedly filed by deceased Muhammad Rafique were manipulated after the incident of murder. They have alleged that they never absconded. Opponent Basham has admitted the recovery of his licensed gun from him but has denied that it was prepared into a sealed parcel on the spot. They have examined no evidence in their defence.
7. The opponents were challaned and subsequently tried and ultimately acquitted resulting in the present appeal. During the pendency of the proceedings opponent Wassand died. We, therefore, deal with the appeal against opponents Basham and Jafferan only as Nizamuddin is still absconding. .
8. The death of Muhammad Rafique due to gunshot injuries resulting in this murder on the day of incident on 25-12-1972, at 1-00 p.m. Is not disputed. The only dispute is as to whether or not the opponents Basham and Jafferan alongwith others committed murder of deceased Muhammad Rafique by intentionally causing his death. The prosecution at the trial adduced the ocular evidence of the complainant Inayatullah, Muhammad Bux and Ruknuddin and that of the motive. Additionally the prosecution has also relied upon the evidence of recoveries of shot-gun of 12 bore recovered from the opponent Basham, five empties from the scene of offence and matching of two crime empties out of five recovered from the scene of offence having been fired at from it, in view of the Ballistic Expert report, medical evidence and that of abscondence of the accused Basham and Jafferan.
9. Before we discuss the merits of the case brief reference to the general principles which are always taken into consideration while dealing with the acquittal appeal appears necessary. In that respect, it would be useful to refer to the observations of Division Bench of this Court in the case of State v. S. Umed All and others PLD 1967 Kar. 440.
" . . . . We must keep in mind the basic decision of the Privy Council reported in AIR 1934 P C 227 (2) in this connection. This finding has been followed with approval by our. Supreme Court thereafter. In deciding an appeal against acquittal what is to be borne in mind is;
(1) The view of the trial Judge as to the credibility of the witnesses.
(2) The presumption of innocence in favour of an accused a presumption certainly not weakened by the fact that he has been acquitted at his trial.
(3) Right of an accused person to the benefit of any doubt.
(4) The slowness of Appellate Court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses."
10. As regards the ocular evidence of the complainant Inayatullah, Muhammad Bux and Ruknuddin, it does not inspire confidence. It is for the first time that Inayatullah happened to have gone to the village of Noor Hassan Khan ahead of Muhammad Bux and Ruknuddin to see that Noor Hassan Khan does not go away, otherwise they had gone to him all together on previous occasions for the same purpose to see that he decides faisla between the partisan account of `Kayo Kari' affair. He had to wait as servant of Noor Hassan Khan informed him that Noor Hassan was out and was to come back shortly. In the meantim: he had to ease himself and happened to have to go towards the scene of offence and was attracted by gun reports and happened to have witnessed the incident. Scene of offence was five survey numbers away from Noor Hassan Khan's village and he happened to have reached at the distance of about two survey numbers away from Noor Hassan Khan's village when he saw the incident which took place about three survey numbers away from the place where he was standing. It seems to be a strange co-incidence that Inayatullah had gone out to ease himself. Towards the place of wardat when Muhammad Bux, Ruknuddin and deceased Muhammad Rafique had come and were attacked by the opponents resulting in the present incident. Apart from it Inayatullah has deposed that he saw the inside-i from the distance of 20 paces, which distance can never cover up three survey numbers. Inayat-- ullah clearly contradicts himself and it appears as if he was never present at the scene of offence and had not seen the incident at all. So far as Muhammad Bux and Ruknuddin are concerned, their ocular version is that Muhammad Rafique was fired at from a distance of about 15 to 20 paces. Tapedar Muhammad Murid who prepared the sketch of the scene of offence has been examined. He was pointed out the relevant places by the eye-witnesses P. W. Ruknuddin. According to him opponents Jafferan and Wassand are stated to have fired from a distance of 15 feet wher-.As Nizamuddin and Wassand from a distance of 16 feet at the deceased. This version is clearly belied by the medical evidence, according to. Which Injuries 1 and 2 were the result of gunshots fired from a distance of 6 feet, whereas the other injuries from a distance of more than 6 feet. What is further evident from this medical evidence is that there was charring present on injuries 1 and 2, whereas no charring was present on the rest of the injuries. Our attention has been drawn to the Medical Jurisprudence by N. J. Moodi and S. A. Haleem at page 227, 21st Edn. To say that the blackening would be found if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet and revolver or pistol within a distance of about 2 feet. This authoritative view supports the medical version to the effect that charring would be present if a gun is fired from a very close range. It would, therefore, be clear that at least Injuries Nos. 1 and 2 were fired from a close distance not more than 6 feet. The ocular version to the effect that all the assailants fired gunshots from a distance of 15 paces and more than that, is clearly belied the Medical evidence on the record. What is further clear in the evidence by that the places from where the empties have been secured have not been shown in the sketch prepared by the Tapedar and that even the mention of empties lying on the wardat was not made in the first information report. The ocular version of the two witnesses Muhammad Bux and Ruknuddin is not only belied by the medical .Evidence in that respect but also by the other circumstances on the record. The complainant Inayatullah and P. W.'s Muhammad, Bux and Ruknuddin are admittedly closely related to deceased Muhammad Rafique and their ocular testimony with the background above mentioned, cannot be safely relied upon without independent corroboration as- they are obviously interested witnesses, not only being close relatives of the deceased but have also motive to falsely implicate the opponents, admittedly having dispute with them over land. Such corroboration is lacking in the present case as will appear hereunder. Independent evidence available has also not been examined. Noor Hassan Khan admittedly came to the scene of offence immediately after the incident. A crowd of people also collected from Noor Hassan Khan's Village soon after the incident. Statement of Noor Hassan Khan was also recorded by the police and his name also appears in the charge-sheet but the prosecution failed to examine, him, The presumption would, therefore,- arise that had he been examined he would not have supported the prosecution case. None from the crowd has been examined. Neither the name of the servant of Noor Hassan Khan who had gone out and would come back shortly has been disclosed, nor he has been examined by the prosecution. It would, therefore, appear that independent evidence which could be available has been suppressed for obvious reasons. We, therefore, find that the ocular evidence which is A interested and also suffers from serious infirmities has no independent corroboration, and the learned trial Court has very rightly disbelieved the same.
11. The motive for the offence is `Kayo Kari' affair. It is alleged that Hidayatullah brother of complainant lnayatullah was declared 'Karo' with Mst. Allah Dini wife of Dhani Bux who is sister of opponents Basham and Jafferan and that Hidayatullah went into hiding and Mst. Allah Dini was driven out from the house' by Dhani Bux.
On account of this 'Karo Kari' affair the complainant party had approached Noor Hassan Khan Bajkan their `mukadam' to settle the matter between the parties as the opponent party was feeling aggrieved. Even on the day of the incident, the complainant party had allegedly gone to Noor Hassan Khan for deciding the faisla. But it is strange that though Noor Hassan Khan went to the scene of offence immediately after the incident and Inayatullah had visited him for deciding the dispute between the parties, Noor Hassan Khan has not been examined by the prosecution obviously for the reason that he would not have supported the prosecution case.
There is no cogent reasons that Muhammad Rafique should have been killed on the account. In any, case, if Hidayatullah had gone into hiding which does not appear. Probable for the reason that he is working as a teacher, the opponents could have killed his brother Inayatullah rather than Muhammad Rafique who was distantly related to him. According to the well established customs of Balochis Mst. Allah Dini would have been killed than driven out from the house. Much stress has been laid on 107, Cr. P. C. Proceedings 'filed by Muhammad Rafique on the day .Prior to the day of incident. But we find as rightly observed by the learned trial Court that they appeared to have been the result on account of dispute over land rather than `Karo Kari' affair as would appear clearly from the proceedings themselves. We, therefore, .Find that the prosecution has failed even to prove the motive for commission of the offence.
12. Coming to the recoveries it is strange that neither Noor Hassan Khan nor any of the people who were attracted from his village to the scene of offence immediately after the incident have been made the mashirs of the scene of offence from where the crime empties were recovered. Instead two casual passers-by Muhammad Usman and Karim Bux were picked up to act as mashirs though they were related to the deceased and were living at a distance of about nearly two to three miles from the scene of offence. Apart from it, the sketch prepared by the Tapedar Muhammad Murid on the pointation of eye-witnesses Ruknuddin does not disclose the two places where the empties were lying. The first. Information report which was lodged soon after the incident also does not make mention of the empties available on the scene of offence.. In view of the circumstances, therefore, recovery, of the empties from the scene of offence appears to be doubtful. The gun secured from the opponent Basham is admittedly his licensed gun. Though the prosecution alleges the gun and empties were prepared into sealed parcels on the spot but no care was taken either to get the gun and the empties signed by the mashirs at the time of recoveries even after sealing the- parcles after they were prepared. Above all, the inordinate delay of five months in sending the sealed parcels containing the gun and crime empties has not at all been accounted for. No explanation has been offered for this delay in sending the parcels to the Ballistic Expert. In the case of Rehman and others v. S. State (1), delay of more than a week was considered to have rendered the alleged recoveries doubtful and of no avail to the prosecution. In the case of Muhammad Saleem v. The State (2), a delay of more than a fortnight in sending the Articles was found fatal. And no reliance was placed on such recoveries. In the recent authority in the case of Ghulam Hussain and 2 others v. The State (3), after placing reliance .On number of decisions, , delay of more than a month in sending the crime empties and the weapons of offence to the Ballistic Expert for which there was no explanation forthcoming, was considered fatal rendering the recoveries doubtful and of no legal value. Judging in the light of the above authorities, delay of five months in the circumstances of the present case which has not at all been accounted for, has rendered the e recoveries doubtful, and no safe reliance can be placed on such recoveries as possibility of manipulation cannot be ruled out. The learned trial Court, therefore, very rightly rejected this piece of evidence.-
13. Coming to the abscondence of the opponents Basham and Jafferan they were arrested only, after four days after the incident. The learned trial Court has very rightly observed that had they the intention to abscond they would not have been arrested only after a period of four days within the limits of the same police station. The alleged abscondence of the opponents Basham and Jafferan is, therefore, compatible with their innocence rather .Than with their guilt. The learned trial Court, therefore, very correctly discarded this piece of evidence as well.
14. It is true that evidence on capital charge in order to carry conviction must come from unimpeachable source or must be supported by some strong circumstances. Considering the evidence on record as discussed above in the light of the general principles which are always taken into consideration while dealing with an acquittal appeal as stated above, it is apparent that the findings of the learned trial Court do not appear to be C perverse.
The prosecution has very clearly failed to prove that guilt of the opponents Basham and Jafferan beyond reasonable doubt.
15: For all these reasons, we dismiss the appeal against opponents lBasham and Jafferan. The appeal against deceased opponent Wassand abates. The bail bonds of the opponents stand cancelled.
M, y. H. Appeal dismissed.
(1) PLD 1968 Lah. 464(2) 1968 P Cr. L J 538
(3) 1968 P Cr. L J 685