' SADIQ HUSSAIN BHATTI, J.---The appellants Qadir Bux son of Muhammad Siddique and Gul Bahar son of Muhammad Siddique along with co-accused Ali Nawaz, Sanaullah and Ali Bux since acquitted by the learned Additional District and Sessions Judge, Ubaro for the charge of murder of the Deceased Manzoor Ahmed and attempted to cause the murder of complainant in furtherance of their common objection for offence falling under sections 302/324/147/148/149, P.P.C. Read with section 114, P.P.C., arising out of F.I.R. No,175/2007 of Police Station Daharki during the trial proceeding of Sessions Case No,289/2007.
2. The appellants were convicted and sentenced as under:--
(1) Qadir Bux son of Muhammad Siddique Leghari and Gul Bahar son of Muhammad Siddique Leghari for offence under sections 302(b), 114, P.P.C. Read with section 149, P.P.C. To suffer imprisonment for life and to pay Diyat to the legal heirs of the Deceased Manzoor Ahmed, under Section 324/114 read with section 149, P.P.C. To suffer R.I for ten years and pay compensation of Rs,10,000 each to the injured complainant Bashir Ahmed Leghari in default thereof shall suffer S.I for three months more.
(2) The appellants above named were also convicted under section 148, P.P.C. Read with section 149, P.P.C. To suffer R.I. For two years and pay fine of Rs,5000 each and in default thereof shall suffer S.I for one month more.
3. All the above sentences of imprisonment were ordered to . Run concurrently, with benefit of section 382-B, Cr. P . C .
4. Complainant Bashir Ahmed lodged such F.I.R. As mentioned herein above. Brief facts of the F.I.R.
Are mentioned as under:-- "On 21-8-2007 at 1300 hours complainant Bashir Ahmed son of Dhani Bux by caste Leghari came at Police Station Daharki and lodged F.I.R. Wherein he alleged that Manzoor Ahmed, aged about 35/36 years was his elder brother, about one year back one Abdul Qadeer Leghari, the brother of accused Gul Bahar was killed, such case was registered at Police Station Mirpur Mathelo and they were booked/chailaned in that case. It is further alleged in the F.I.R. That on the day of incident, the complainant alongwith his brother Manzoor Ahmed, his cousins Khuda Bux son of Khan Muhammad, Ghulam Mustafa son of Palyo Khan proceeded on their Motorcycles to attend the Court at Mirpur Mathelo from Bharchundi Sharif. It was about 0800 hours, when they reached near bridge of Naro Wah, his Motorcycle was ahead of another Motorcycle of his cousins. He further alleged that in the F.I.R. That all of sudden a Motorcycle came there from their back side and hit their Motorcycle, as a result thereof, they both fallen down. He further alleged that another Motorcycle also came there. They found accused Adam, Ali Hassan, Qadir Bux armed with Pistols, Gul Bahar, Ali Bux armed with hatchets and two unknown persons armed with "lathis". He further alleged that accused Gul Bahar challenged the complainant Party, asked them that their days are over and instigated co-accused to kill them. Thereafter, accused Ali Hassan made straight fire upon brother of complainant namely Manzoor Ahmed, which hit him on his chest. Accused Adam also made straight fire of his Pistol at said Manzoor Ahmed, which hit him on his left thigh, he cried and fell on the road. He further alleged that accused Qadir Bux made straight fire shot of his pistol at Complainant with intention to kill him, which hit on his toe of left foot. He further alleged that his cousins came running there and on seeing them the accused made their escape towards Naro Wahside. He further alleged that he then found his brother Manzoor Ahmed in injured condition.
They took him with the help of local conveyance towards Mirpur Mathelo Hospital wherefrom after having first aid they removed him to Sukkur for further treatment and when they reached near Rohri, his brother went unconscious. They reached at Sukkur and got admitted in Civil Hospital where the brother of complainant succumbed to the injuries. Thereafter the complainant brought dead body of his brother Deceased Manzoor Ahmed and left it to RHC Daharki, wherefrom he came at Police Station Daharki and lodged F.I.R. Against accused persons."
5. SIP Mureed Hassan Marri of Police Station Dhahrki recorded such F.I.R. At the behest of complainant and the investigation of the case was handed over to SIO. Dhahrki.
6. SIO Dhahrki took up the investigation and after usual investigation submitted the charge sheet against the accused persons namely (1) Qadir Bux, (2) Ali Bux, (3) Ali Nawaz, (4) Sanaullah, (5) Gul Bahar, showing the accused Adam and Ali Hassan as absconders.
7. Before the commencement of trial proceedings, all the accused persons were supplied the documents as required under section 265-C, Cr.P.C. On execution of receipt vide Exhs.1 to 3.
8. Charge (Exh.04) was framed against the accused for allegedly committing offence under sections 302/324/ 148/149/114, P.P.C. The same was read over to all the accused and explained to them. They pleaded not guilty and claimed to be tried, vide the pleas Exhs. 11, 12, 13, 14 and 15.
9. Prosecution in order to prove its case examined following prosecution witnesses.
10. Complainant Bashir Ahmed examined as Exh.16, deposed before the trial Court, that the Deceased Manzoor Ahmed was his brother. One Qadeer was murdered and in that case they were challaned and were facing trial pending in the Court at Mirpur Mathelo. He further testified that on 21-8-2007, he along with his Deceased brother and cousins Khuda Bux and Ghulam Mustafa were going to attend the Court in another case on two motorcycles when at about.
8.00 a.m., when they reached at Naro Wah Bridge, a Motorcycle came behind them and hit their Motorcycle on which he and his Deceased brother were sitting. On that Motorcycle three persons were sitting. As a result of that collusion he and his brother fell down from their motorcycle and saw a Motorcycle came in front of them from Naro Wah side, he saw and identified accused Adam, Ali Hassan and Qadir Bux armed with Pistols, Gul Bahar, Ali Bux armed with hatchets and two unknown persons, with open faces armed with lathies. The complainant further testified that at that time accused Gul Bahar thrown challenge, that today they shall not be spared and instigated co- accused not to spare anyone of us. At his instigation, co-accused Ali Hassan, fired Pistol shot at Deceased over his chest in order to kill him, which hit him. Accused Adam also fired a Pistol shot at Deceased which struck him over his left thigh as result of those Pistol shots received by Deceased, he fell down on the road. Meanwhile, co-accused Qadir Bux fired Pistol shot at him in order to commit his murder. The Pistol shot hit him (complainant) on his left thigh near his feet. On hearing the above commotion, his cousins who were following them on their motorcycles, raised hakals and cries on which all the accused decamped from the place of Vardat, on two motorcycles towards Naro Wah side. He further deposed that he immediately attended his brother Manzoor Ahmed, who was bleeding profusely. He immediately shifted his brother to Mirpur Mathelo Hospital for treatment, wherefrom he was referred to Sukkur Hospital for better treatment, but before reaching Sukkur Hospital, the Deceased breathed his last as succumbed to the injuries. From Sukkur, the dead body of the Deceased Manzoor Ahmed was brought at Dhahrki Hospital. He (complainant) then went to Police Station Dhahrki and lodged the F.I.R. Of the incident. Such F.I.R.
Was registered and read over to him and he signed the same. He produced the F.I.R. As Exh.16-A, and acknowledged his signature on it. Police also inspected the injuries suffered by him in presence of mashir Mazkoor Ahmed Pitafi and Moujuddin and referred to him to Hospital for treatment. He further deposed that after Postmortem Examination, the dead body was handed over to him on execution of receipt, which he produced as Exh.16-B. He also showed the place of vardat to Police, who inspected the same in presence of mashirs named above. Police secured two empty cases of 30 bore Pistol and bloodstained earth from there. He also testified that on 1-10-2007 Police had recorded his further statement in which he disclosed the names of the unidentified person/accused Sanaullah. Such further statement recorded by Police, was produced by him as Exh.16-C. He identified the accused present in the Court were same, except two absconders Ali Hassan and Adam.
11. In the cross-examination, he deposed that they left their house to attend the Court at 7.30 a.m., which was at a distance of 6 Kilometer from our house. His brother Deceased Manzoor Ahmed was driving the Motorcycle, the other Motorcycle was driven by his cousin Khuda Bux. At the time of incident, his cousins were about 300 feet away from them. He admitted that it was a busy road where traffic was plying even at the time of incident, since it was National Highway. He deposed that Motorcycle, which hit them, on which Adam, Ali Hassan and Gul Bahar were sitting. He also deposed that on reaching Mirpur Mathelo, they informed the Police at Police Station Mirpur Mathelo and they went to place of vardat after receiving my information. From Sukkur Hospital, they brought the dead body at Dhahrki Hospital at 12.30 Noon, from where he went to Police Station Dhahrki to lodge F.I.R. At a distance of half kilometer from Hospital. After registration of F.I.R., he returned back to Dhahrki Hospital and remained there till 3.00 p.m. He admitted that mashirs belonged to village Bharchandi situated at a distance of 6 Kilometer from place of vardat. He admitted as correct that case of Qadeer was lodged against him and other, which is pending decision before this Court. He denied that they have consulted with other to falsely implicated the present accused due to previous enmity and then have lodged this F.I.R. Against them. He admitted that the accused who were not named in the F.I.R. Were not known to him previously. He admitted that no identification parade was ever held. He denied the suggestion that he has obtained false medical certificate after due consultation in fact he received injuries after falling from Motorcycle.
12. He also vehemently denied that none had witnessed the above incident as they were not present at the place of vardat. He also denied that he has deposed falsely.
13. P.W. Khuda Bux is an eye-witness and examined' as Exh.17, he has corroborated the above testimony of complainant Bashir Ahmed. He deposed that at the time of incident, he along with P.W. Ghulam Mustafa were on another Motorcycle and were following Bashir and Deceased Manzoor, who on their Motorcycle about 200/250 feet ahead of them. He clearly deposed that all of sudden a Motorcycle came from western side and collided with Motorcycle on which Bashir and Deceased Manzoor Ahmed were riding as a result of which both fell down, meanwhile Motorcycle on which he identified accused persons Adam, Ali Hassan, Qadir Bux, Ali Bux and two unidentified persons were riding. He further deposed that accused Ali Hassan, Qadir Bux and Adam were armed with Pistols, the remaining accused persons were armed with lathies. This P.W. Further deposed that accused Gul Bahar raised lalkara and instigated co-accused not spare complainant Bashir and his brother Manzoor and they be killed, on which Ali Hassan, who was armed with Pistol fired at Deceased Manzoor which struck him over his chest. Accused Adam also fired at Deceased which hit over his left thigh as a result of which Deceased Manzoor Ahmed fell down. Accused Qadir Bux fired at complainant Bashir and the shot struck over the toe of his feet. On seeing them as they approached them accused decamped from the place of vardat. He correctly identified the accused in the Court except two absconders Ali Hassan and Adam. He denied the suggestion that he did not witness the incident and that he was deposing falsely.
14. P.W. Ghulam Mustafa is also eyewitness of the incident. He is examined as Exh.18. He in his testimony repeated the same version as above nominated the above named accused and specific part played by them during the occurrence.
15. Dr. Kailash Kumar of Taluka Hospital, Dhahrki is examined as Exh.19. He examined injured complainant Bashir and found one lacerated wound extending from medical aspect of left toe upto lateral end of nail, underneath muscle, the wound is opened and the injury is through and through. After X-Ray examination no bony lesion was found.
16. Dr. Kailash Kumar also performed the Postmortem Examination upon the dead body of Deceased Manzoor Ahmed as found, one lacerated punctured wound 3 cm x 2 cm x epigastric region cavity deep over left side of epigastric region (wound of entrance). One bruise 4 cm x 3 cm over anterior aspect of Rt. Knee joint. One lacerated wound 3 1/2 cm x 1.5 cm x muscle deep over anterior lateral aspect of upper 1/3 of left thigh. Wound is opened in its whole course, injury was through and through.
17. Blood vessels were raptured at the site of injury, walls and peritoneum lacerated, stomach damaged, small intestine, large intestine and liver lacerated. He opined that all the above injuries were ante-mortem in nature Injuries Nos.1 and 3 were caused by discharge of firearm Injury No,1 was individually sufficient to cause death in ordinary course of nature whereas Injury No,2 was caused by hard and blunt object.
18. Prosecution examined mashir Mazkoor Ahmed as Exh.20. He produced memo of the injury on the person of complainant as Exh.20-A, injuries on the person of Deceased as Exh.20-B, inquest report as Exh.20-C and produced the memo of place of vardat, from where police secured two empty cases of 30 bore, they saw dried blood on road, which was not collectable. He produced memo as Exh.20-D. He also produced memo of recovery of non-bloodstained hatchet at the pointation of accused Ali Bux as Exh.20-E. He denied the suggestion that all the above memos were prepared and signed at Police Station.
19. SIP. Gul Muhammad of Police Station Dhahrki was examined as Exh.21, by prosecution to prove the handwriting and signature of late SIP. Arbab Ali, who had prepared the memo Exh.20-E, who had since expired.
20. Prosecution also examined A.S.-I. Safdar Ali as Exh.22, to prove the signature and handwriting of Investigating Officer/SIP. Quban Ali Pathan on Exh.20- C memo of inspection of injuries on the body of the Deceased as Exh.20-D the inquest report, and also 161. Cr.P.C. Statement recorded by him.
Since P.W. SIP Qurban Ali was ailing and could not attend the Court.
21. Tapedar Ghulam Nabi is examined as Exh.23. He prepared the sketch of place of vardat, as shown to him by PC. Muhammad Hassan on 29-9-2007 as Exh.23-A.
22. PC Muhammad Hassan is examined as Exh.26. He handed over the dead body of Deceased to the heirs of the Deceased duly acknowledged as Exh.16-B.
23. Prosecution also examined, A.S.-I. Abdul Aziz as Exh.27. He arrested the accused Ali Bux and Qadir Bux in presence of mashir and prepared such memo of arrest, which produced as Exh.27-A.
He identified both the accused 'persons as same present in Court.
24. PC Abdul Kadir is examined as Exh.28. He acted as mashir of the bloodstained clothes worn by the Deceased, such memo was prepared by Investigating Officer and he signed the same and produced it as Exh.28-A.
25. HC Muhammad Yousif examined as Exh.29 had acted as mashir of arrest of accused Ali Bux and Qadir Bux prepared by A.S.-I. Abdul Aziz. He acknowledged the memo 27-A already produced.
26. Prosecution closed its side vide Exh.30.
27. After recording the statements of the accused persons under section 342, Cr.P.C. And hearing the Counsel for the respective Parties, the trial Court convicted the appellants/accused Qadir Bux and Gul Bahar as aforementioned, whereas co-accused Ali Nawaz, Sanaullah and Ali Bux were acquitted by extending the benefit of doubt.
28. Heard learned counsel for the respective Parties and perused the record with their assistance.
29. Learned counsel for the appellants/ accused persons contended that the accused persons are innocent and have been falsely involved due to previous enmity. There are no independent witnesses to corroborate the testimony of interested witnesses.
30. That there are contradictions between the statements of witnesses. That the above incident is unwitnessed and these witnesses are setup witnesses. There is contradiction between medical evidence and the alleged eye-witnesses. According to the prosecution, accused Gul Bahar although was armed with hatchet, but did not use the same in the commission of the alleged crime and mere lalkara is attributed to him. Tapedar through his statement has falsified this case.
The complainant Party has lodged this case against the accused just to save their salves from the earlier case lodged against them by present accused. The present case is doubtful. The appellants/ accused be given benefit of doubt and be set free.
31. Conversely, the State Counsel assisted by complainant's counsel in rebuttal contended that, it was broad daylight murder and hence there cannot be any scope of mistaken identity previous enmity and filing of case is also admitted fact. There absolutely no contradiction between medical evidence and ocular evidence. The witnesses are truthful and have fully supported the prosecution case. In support of above contentions, he relied upon a number of authorities.
32. I have carefully examined the respective contentions as agitated on behalf of the Parties in the light of record of the case, scanned the entire evidence and perused the judgment of trial Court.
The whole prosecution case hinges on ocular testimony, furnished by the complainant/ Injured Bashir Ahmed Exh.16, P.W. Khuda Bux Exh.17 and P.W. Ghulam Mustafa Exh.18. The evidence adduced by the above named witnesses is unblemished, trustworthy and confidence inspiring. All of them clearly identified the accused persons, as they waylaid the complainant Party well aware that they were on their way to attend the Court, where their case was fixed. The above witnesses have categorically stated the role played by each accused. Accused Gul Bahar being armed with lathi raised hakals and instigated co-accused Adam, Ali Hassan and Qadir Bux, who were armed with Pistols whereas Ali Bux and two unidentified accused persons were armed with lathis, not to spare the complainant Bashir Ahmed and his brother Deceased Manzoor Ahmed, on which accused Ali Hassan fired pistol shot at Deceased Manzoor Ahmed, which struck the Deceased over his chest, co-accused Adam fired Pistol shot at Deceased Manzoor, which hit him over his left thigh. Accused Qadir Bux who was also armed with Pistol fired at Complainant Bashir Ahmed in order to commit his murder, the shot hit him over toe of his left foot. Deceased succumbed to the injuries received by him at the hands of accused and died, whereas complainant Bashir Ahmed received injuries as a result of murderous assault launched by abovenamed accused persons.
33. The above incident was also witnessed by remaining two eye-witnesses Khuda Bux and Ghulam Mustafa as they were also following the complainant Bashir Ahmed and Deceased Manzoor Ahmed. All the accused persons escaped from the place of vardat and first injured/Deceased Manzoor Ahmed was taken to Mirpur Mathelo from where he was shifted to Sukkur Hospital for treatment where he expired. The complainant Party shifted the dead body to Taluka Hospital Dhahrki and lodged F.I.R. Against the above named accused persons. All the above named P.Ws. Have described the incident as above. Even their testimony is un-shattered during the cross-examination. Defence in spite of their efforts could not get any favour from their statements.
Hence, above evidence is unchallenged and cannot be brushed aside on relationship and interested complainant Bashir Ahmed beside being brother of the Deceased Manzoor Ahmed was injured as a result of firing by accused. Defence in the present circumstances, did not ask any question regarding the injury suffered by complainant could be self-suffered or self-inflicted.
Hence, the testimony of complainant cannot be discarded as his presence at the vardat is not challenged.
34. All die above named P.Ws. Fully corroborated the contents of the F.I.R. And statement of complainant Bashir Ahmed.
35. Police inspected the place of vardat shown by complainant in presence of mashirs secured from there two empty cases of 30 bore. Dried blood marks were also seen since they are on road hence could not be collected. Such memo of vardat was prepared. Accused Ali Bux led the police near railway line and produced non-bloodstained hatchet concealed under the bricks which was sealed at the spot.
36. Dr. Kailash Kumar, Medical Officer Taluka Hospital Dhahrki, who performed the Postmortem Examination upon the, dead body of Deceased Manzoor Ahmed have deposed that he found in all three injuries over the dead body of the Deceased are:--
(1) Lacerated punctured wound 3 cm x 2 cm x epigastric region cavity deep over left side of epigastric region (wound of entrance).
(2) Bruise 4 cm x 3 cm over anterior aspect of Rt. Knee joint and
(3) Lacerated wound 3-1/2 cm x 1.5 cm x muscle deep over anterior lateral aspect of upper 1/3 of left thigh. Wound is opened in its whole course, injury was through and through.
37. Dr. Kailash Kumar Medical Officer Taluka Hospital Dhahrki has opined that the Deceased as a result of shock and haemorrhage consequent upon Injuries Nos.1 and 3 caused by discharge of firearm.
38. In my opinion Injury No,2 could be the result of fall on hard mettled road.
39. Thus the Medical Officer's testimony further supports the ocular C testimony as discussed above.
40. Medical Officer has also examined the injured complainant Bashir Ahmed and found following injuries:-- ' One lacerated wound 3 cm x 2 cm extending from medical aspect of left toe upto lateral end of nail, carrying away Nail, underneath muscle lacerated wound is opened in its course, the injury is through and through.
41. The firearm injury is through and through. This piece of evidence further supports eye-witnesses account.
42. The Injury No,1, which is punctured wound at epigastria region and is wound of entrance.
Epigastric region is front portion of the body and is actually below he ribcage and over the naval region. The eye-witnesses who have said that fire hit the Deceased over his chest are correct since they are less educated and also not technical to use the word epigastric region. Normally in rural area, front portion is called chest by rustics.
43. Hence, there is no recovery of any firearm, hence the empty cases were not sent for Ballistic Analysis. Hatchet was recovered at the pointation of co-accused is non-bloodstained as the same was not used in the alleged offence.
44. Motive is proved through the evidence of eye-witnesses one Qadeer brother of the accused Gul Bahar and Qadir Bux was murdered about one year prior to this incident, in which complainant Party was accused. In order to avenge the above murder of Qadeer present accused killed the Deceased and attempted to kill complainant. The accused tried to kill Bashir Ahmed and fired at him by Qadir Bux but fortunately it struck his left toe. Here, the intention of the accused to be seen and not his marksmanship. From reading of above evidence, I fully satisfied that trial Court rightly convicted for the offence committed by them with the help and active assistance of absconding co-accused.
45. For the foregoing reasons, the appeal is dismissed.