This appeal under section 410, Cr. P. C. Has been preferred against the Judgment dated 30th November, 1980 of the learned Sessions Judge, Tharparkar at Mirpurkhas whereby he acquitted co- accused Ali Murad and Mir Hassan alias Jaffar and convicted the accused Dil Murad and Gul Hassan under section 302/149, P. P. C. And sentenced them to suffer imprisonment for life and each one of them to pay compensation of Rs. 5,000 to the heirs of the deceased in terms of section 544- A, Cr. P. C. And in default of payment of compensation each one of them to suffer further R. I. For six months.
2. The facts of the prosecution case are that one Haji Ahmed son of Mohammad Siddique by caste Narejo resident of Deh No. 81, Taluka Mirpurkhas lodged his F. I. R. On 5th March, 1977 at Police Station Taluka Mirpurkhas of District Tharparkar which reads as under :- "Complaint of the complainant is that : I am "Zamindar". I have got about 32 acres of land. My brother-in-law is Ahmed Khan who is also aamindar. We are residing in the same village with our families. Last night, my brother-in-law Ahmed Khan told me that he has got some work at Mirpurkhas, therefore he asked me whether I will accompany him. Upon this, I told him yes. Early in the morning, at 5.30 hours, I and my brother-in-law Ahmed Khan came, out of our house in village, when Khakoo son of Mohammad Narejo and Ahmedoo son of Dadan caste Machhi, and others also met us near the village. We asked from them as to where they were going. They told that they have got some work at Mirpurkhas. We all the four came to Patoyoon Town, where Hotel of Saeendad Khaskheli was open. We all the four carne and sat at the hotel. I sent for tea. We saw in the hotel and found that Shah Murad son of Dil Murad Khoso was already sitting in the hotel. My brother-in-law Ahmed Khan told me that I should stand at the bench and see whether the vehicle was coming or not. I went to the branch. Ahmed Khan, Khakoo and Ahmadoo were sitting in the hotel. Shah Murad came out of the hotel behind me and left towards west. I reached at the branch, saw the vehicle and was coming to the hotel, when I reached at a distance of 15-20 paces towards east of the hotel, I found five persons namely Shah Murad, Dil Murad, Shah Nawaz, Mir Hassan and Gul Hassan all by caste Khosas at the door of the hotel. Out of them, Shah Murad, Dil Murad, and Gul Hassan were armed with guns and Mir Hassan and Shah Nawaz were armed with hatchets. Dil Murad abused my brother-in-law Ahmed Khan within my sight, and told him that he had escaped for so many days and that day he will take revenge of his nephew. On saying so, all the three persons opened firing at my brother-in-law Ahmed Khan. Due to fear, I stood there (paper torn) after firing all the five accused went away towards west while abusing. Thereafter I came the hotel and found that Ahmed had received gunshots injuries on his person and had died. I made enquiries from Khakoo and Ahmedoo, who told me that after my departure, Shah Murad went out and after a short while Dil Murad, Shah Murad, Gul Hassan who were armed with guns, and Mir Hassan and Shah Nawaz who were armed with hatchets, came at the door of the hotel. They gave `hakkals' and Dil Murad, Shah Murad and Gul Hassan fired gunshots at Ahmed Khan within their sight. Due to fear they stood concealed at behind door. Aforesaid accused went away towards west after killing Ahmed Khan. After a shortwhile, Allahdino came from village, who said that Dil Murad, Shah Murad, Gul Hassan. Mir Hassan and Shah Nawaz were running away towards west near Ibrahim Shah. Dil Murad, Shah Murad and Gul Hussan were armed with guns and Mir Hassan and Shah Nawaz were armed with hatchets. After narrating these facts, many people of the town collected there. 1 after leaving Khakoo, Ahmed and Allahdino at the dead body, have come here to lodge report. About 2/3 years back our quarrel had taken place with Dil Murad Khoso at Patoyoon Town. During this quarrel, nephew of Dil Murad was murdered. In this case, my brother-in-law Ahmed Khan and (paper torn) proceed and ended. In this case Ahmed Khan and others were acquitted. Now I lodge report that above accused persons have murdered my brother-in-law Ahmed Khan without any fault. Investigation be made."
3. S. H. O. Mohammad Jamil P. W. 11 recorded the F. I. R. Exh.
12. He then went to the scene of offence and inspected the same in presence of mashirs Aziz Ahmed and Abdul Wahid. It was situated 22 miles away from the Police Station in village Patoyoon at the hotel of Saeendad where dead body of Ahmed was lying on the ground by the side of over with gunshot injuries on it. There was blood on the ground and number of persons standing' on the spot. He found four empty cartridges lying there. He scratched the blood-stained earth, secured it and sealed it under mashirnama Exh.
24. He then prepared inquest Exh. 25 in presence of same mashirs. He thereafter gave letter to P. C.
Abdullah for taking the dead body to the hospital for post-mortem examination. He then made inquiries from P. Ws. Ahmed, Khakoo, Saeendad, Allahdino and also recorded statement of the complainant. He left in search of the accused but there was no trace of them till 18th March, 1977 when he arranged `Nakabandi' in Deh Dari Mori Taluka Mirpurkhas. It was at about 6.45 p. m., when he found two persons coming towards Mori, out of them one was carrying a gun while other had a hatchet. The man with gun was Ali Murad and one with hatchet disclosed his name to be Mir Hassan, the acquitted accused. He arrested them and secured the gun, cartridges and the hatchet from them. He sealed the gun as well as cartridges before Noor Mohammad and Sardar mashirs and prepared such mashirnama Exh.
28. He then lodged a separate F. I. R. Under section 13-D, Arms Ordinance against accused Ali Murad. He got recorded statements of the P. Ws. Khakoo and Ahmed under section 164, Cr. P. C. On 28th March, 1977 and then challaned the accused to stand trial in the Court. The accused Dil Murad and Shahnawaz were already absconders in another murder case of Tando Allahyar. He sent the blood-stained articles to Chemical Analyser and produced his report as Exh.
32. He also sent the gun secured from Ali Murad and the empty cartridges from the scene of offence to the Ballistic Expert. He produced his report as Exh. 33.
4. The prosecution case is mainly based on the evidence of complai--nant Haji Ahmed, Khakoo alias Abdul Khaliq (P. W. 2) Ahmed (P. W. 4), Saeendad (P. W. 6), Allahdino (P. W. 5), evidence of motive, medical evidence, recoveries and the evidence of the Investigating Officer.
5. The accused however denied the allegations and claimed to be in judicial custody on the day of incident at `Jhal-Magsi' in province of Baluchistan. He produced the certificate from the Court Exh.
38, true copies of the diaries of the Court Exh. 39, F. I. R. Exh. 40, true copies of statements of Niaz Ahmed and Bashir Ahmed Exhs. 41 and 42 respectively, true copy of the bail application Exh. 43, true copy of the statement of Noor Mohammad Exh. 44 and true copy of Investigation report Exh.
45. He has also produced true copies of the judgment of the Additional Sessions Judge, Sangbar in a murder case against Dil Murad and others showing enmity with Hussain Bux Mari Exh. 46 and also examined Mohammad Yousuf Naib-Tehsildar D. W. 1 in their defence.
6. There is no doubt that the deceased Ahmed died as a result of gunshot injuries. Dr. Abdul Qayoom who performed the autopsy has been examined and he has stated as under: - "I was Medical Officer Civil Hospital Mirpurkhas, on 5th March, 1977 when I was called to perform post-mortem on the dead body of Ahmed Khan at the spot. The dead body was identified by Muhammad, the brother and Umar the son of the deceased. I started the post-mortem at 10.30 p. m. And finished it at 12.30 a. m. On next morning. The dead body was of Muslim male of average- built. On external examination I found the following injuries :-
(1) One penetrating lacerated wound about 3/4" in diameter with the skin around. Bruise on the left lumber region.
(2) One lacerated penetrating type of wound about 1" in diameter on the back of right thigh.
(3) One lacerated penetrating wound about 3/4" in diameter on the front of left leg near the ankle joint.
(4) One lacerated penetrating wound about 2----- in diameter and multiple just head sized wound in the epigastric region.
(5) One lacerated penetrating wound about 2" in diameter and multiple pin head sized wounds in the front of lower abdomen.
(6) One lacerated penetrating type of wound about 1/2" in diameter on the left front temporal region in front of left ear.
(7) One lacerated penetrating wound about 1--- in diameter at the back of the head occipital region.
(8) One lacerated penetrating wound about 1----- in diameter at the front of left chest above the nipple.
(9) Lacerated penetrating wound about 1" in diameter at the middle of the back on the thorex region.
On internal examination I noted fracture of left frontal, temporal and occipital bones. The brain matter was lacerated and had come out of injury No. 6. Left pleura was lacerated. Heart was punctured. Both chambers were empty. Walls of abdomen were lacerated, so also the peritoneum and stomach. The stomach was empty. Large and small intestines contained semi-solid faecal matter and semi-liquid food. Left kindney was torn into multiple pieces. Bladder was punctured at several places. Left tibia was fractured at lower 1/3rd.
From external and internal examination of the dead body I am of the opinion that the death was due to shock and haemorrhage as a result of the above injuries. All the injuries were ante-mortem and appeared to have been caused by shot from fire-arm such as a shot-- gun. Each and every injury excepting 2 and 3 was sufficient in the ordinary course of nature to cause death. Death was instantaneous, and about 12 to 24 hours before post-mortem. I issued post-- mortem notes which I produce Exh.
17. It is same and bears my signature."
7. The point for determination is if the appellants have committed the murder of the deceased ?
8. At the trial, the prosecution examination complainant who is brother of the wife of the deceased Ahmed Khan, Khakoo alias Abdul Khaliq.(P. W. 2) who was co-accused with the deceased in a murder case of one Bilawal which is the motive for commission of this offence. Ahmed (P. W. 4) who is also an eye-witness and is hari of the deceased. He has however, been declared hostile. His statement recorded under section 164, Cr. P. C. Has been brought on the record but it cannot be used against the appellants being not recorded in their presence. Saeendad (P. W. 6) is the owner of the hotel where the incident took place. He has not implicated the appellants and has therefore been declared hostile. Allahdino (P. W. 5) is a corroborative witness who has seen the accused running away immediately after the incident. He is son-in-law of the deceased. His brother Allahdino was co-accused with the deceased and P. W. Khakoo in the murder case in which the deceased Bilawal was killed. The complainant Haji Ahmed as well as Khakoo alias Abdul Khaliq have supported the prosecution case and have stated that they saw accused Ali Murad firing at the deceased. The motive for commis--sion of this offence has come through evidence of the complainant and P. W. Allahdino.
9. Mr. Mohammad Hayat Junejo, the learned counsel for the appellants contends that the evidence against the appellants is also same as that against the co-accused who have been acquitted by the trial Court. The only difference being that the appellants further claimed that they were in judicial custody on the day of incident at `Jhal-Magsi' in Baluchistan Province and the trial Court came to conclusion that they failed to prove the plea of their defence. It has also been pointed out by him that the trial Court has not believed the evidence of the complai--nant and all other witnesses in respect of the acquitted accused. Since co-accused have been acquitted on the same evidence there was no case against the appellants also who were equally entitled to benefit of doubt under the circumstances of the case. It has also been contended by him that their conviction on account of their plea of false defence was not sustainable in eye of law. He relied upon:
(i) Sabu v. State PLD 1966 Kar. 637.
(ii) Khurshid Ahmad v. Kabool Ahmad PLD 1964 Kar. 356.
(iii) AIR 1925 Lah. 42,
(iv) Sadiq v. State PLD 19'7 SC 356.
(v) 1979 SCMR 557,
(vi) AIR 1946 P C 38, and
(vii) Lashkari v. State PLD 1981 Kar. 1.
10. Mr. R. A. Qureshi, the learned counsel appearing for the State is also of the view that the appellants were equally entitled to benefit of doubt as no case for conviction of the appellants has been made out by the prosecution. Since prosecution has failed to establish its case against the appellants they cannot be convicted on the basis of their plea of defence being false. He, therefore, does not support the judgment of the trial Court.
11. I have considered the contentions of the learned counsel for the appellants as well as State. The trial Court has not believed the evidence of the Complainant Ahmed (P. W. 1) Khakoo alias Abdul Khaliq P. W. 2, Saeendad P. W. 6 who is owner of the hotel. He has not implicated the appellants and has therefore been declared hostile. Ahmed P. W. 4 has also been declared hostile. The evidence of Allahdino P. W. 5 will not be of any help to the prosecution as even the trial Court has come to conclusion that he was not an independent witness being son-in-law of the deceased. There is no recovery of any incriminating article from the appellants so as to connect them with the offence.
There remains only evidence of the complainant Khakoo alias Abdul Khaliq and Allahdino who are also highly interested and related to the deceased and inimical to the accused. I have given anxious thought to all the aspects of the case and am very clear in my mind that no person can be convicted on account of a false plea taken by him in defence. Even if the defence plea A is totally false still the burden lies on the prosecution to prove its case beyond reasonable doubt which has not been done in this case. The case of the appellants is exactly identical to that of the acquitted accused except that the plea of defence taken by them according to the trial Court was not established which cannot be basis for their conviction under the circumstances of the case.
12. In the result, I, therefore, accept their appeal, set aside their convictions and sentences awarded to them by the trial Court and acquit them. The Judgment of this appeal was announced earlier by a short order and these are the reasons for it.