GHULAM QADIR LEGHARI, J.--Through the instant criminal acquittal appeal, the appellant/State has assailed the judgment dated 09.10.2013 passed by the learned Sessions Judge, Nausharo Feroze in Sessions Case No,34/2002 culminated from FIR No,92/2001 registered at Police Station Naushehro Feroze, for offence under sections 302, 324, 337-F (iii), 147, 148, 149, 504, P.P.C., whereby he acquitted respondents/ accused persons namely, Hidayatullah. Son of Arab Machhi, Ayaz son of Anwar Machhi, Imamuddin son of Qasim Machhi and Bahadur son of Pir Bux Dahri.
2. The facts of the prosecution case as spelt out from the aforesaid FIR lodged by complainant lnayatullah on 19.09.2001 are that he has his own agricultural land, which they themselves used to cultivate the same. Ayoob alias Ghoro Rajper is caste fellow of the complainant and they are residing in one and same village. There is an old dispute between Saleh Machhi and Ayoob Rajper and such cases have been registered by them against each other, therefore, Saleh Machhi and his brothers are annoyed with the complainant party. Due to that reason, complainant party used to give chowki of their village along with licensed weapons at the night time. On the night of incident i,e, 18.09.2001, he along with P.W. Hidayatullah son of Din Muhammad Rajper, who was armed with his licensed gun, Jamil Ahmed son of Rehmatullah Rajper and Muhammad Essa (son of complainant) and his brother Nasrullah Rajper were sitting in the otaq of Hidayatullah Rajper, situated in village Haji Moosa Rajper. The electricity blubs were on. It was about 11-00 p.m. In the meanwhile, 15 armed accused persons came at the otaq and complainant party identified them on the light of electricity, as accused Muhammad Saleh son of Mehmood Machhi, armed with Kalashinkove, Ahmed son of Mehmood Machhi armed with rifle, accused Qurban son of Qadan Fakeer Solangi armed with gun and 12 unidentified accused persons armed with guns and rifles, who have been seen clearly and can be identified if seen again, hurled and abused the complainant party that they take revenge of Ayoob Rajper from complainant party as Ayoob Rajper is confined in jail and they will not spare the complainant party and saying so the accused persons started firing upon the complainant party and the fires hit Muhammad Essa, Jamil Ahmed and Nasrullah. Complainant party then raised cries, which attracted P.Ws Rehmatullah son of Mehmood Rajper armed with his licensed gun and Sher Muhammad armed with his licensed gun and other co-villagers, who were also having their own licensed weapons, came running there and they fired from their licensed weapons over the accused persons. It is further alleged that in the meantime, police party headed by DSP Abdul Razak Brohi and SHO Police Station Nausharo Feroze namely Lal Bux Depar came there. The culprits tried to take away the bullocks of the complainant and two bullocks of Hidayatullah Rajper but subsequently, two bullocks of Hidayatullah Rajper and one Bullock of the complainant were left by the culprits and they took away only one bullock of the complainant. It is further alleged that the complainant took all the three injured to the hospital where injured Muhammad Essa succumbed the injuries and expired in the Civil Hospital, Nausharo Feroze, whereas his brother Nasrullah Rajper became serious, who was referred from Civil Hospital Nausharo Feroze to PMHC Nawabshah. It is further alleged that complainant came back at his village, he with the help of police tracked the foot prints of accused persons and when they reached towards southern side of Bhiria School, outside of the wall, where they found a dead body of a person, left by the culprits at the some distance, who was identified to be of accused Barkat Ali son of Daoud Khoso resident of village Sher Khan Khoso, Taluka Kandiaro, hence complainant leaving witnesses and police at that place went to police Station, where he lodged such FIR as stated above.
3. After registration of FIR S.I.0 conducted investigation, inspected the place of incident, secured blood stained earth and after completion of investigation submitted challan showing accused Muhammad Saleh and Hidayatullah Machhi in custody while remaining accused namely Ahmed, Qurban, Ashfaque, Ali Akbar and Dodo shown as abscondeRs, Proceedings under sections 87/ 88, Cr.P.C. Were initiated against absconding accused. The formal charge against the accused person namely Hidayatullah Machhi, Ayaz, Imamuddin and Bahadur was framed to which they did not plead their guilt and claimed trial.
4. The prosecution in order to prove its case examined complainant Inayatullah Rajper, p.Ws Nasrullah Raper, Jameel Ahmed Rajper, Hidayatullah Rajper, Sher Muhammad Rajper, Allah Bux Rajper, SHO Lal Bux Depar, ASI Khadim Hussain Lashari, Senior Medical Officer Dr. Abdullah Kumbhar, H.C. Sikandar Ali Hajano, Imamuddin, Inspector Manzoor Hussain Phull.
Thereafter accused Muhammad Saleh and Ahmed Jatoi jumped out on bail and absconded.
Proceedings under sections 87 and 88, Cr.P.C. Were initiated ultimately both accused were declared as proclaimed offender. During the pendency of case, accused Walidad had expired and proceedings against him were abated.
5. Thereafter the learned trial court recorded statement of accused who denied the allegations leveled against them by the prosecution and claimed their innocence and have been falsely implicated due to enmity. The learned trial court, after hearing the arguments of learned State counsel as well as defence counsel, acquitted the respondents/accused while passing the impugned judgment as stated above.
6. Mr. Zulfiqar Ali Jatoi, learned D.P.G has contended that the impugned judgment passed by the learned trial court is against the law, facts, evidence and other all material available on record. He has further contended that the learned trial court without applying the judicial mind passed the impugned judgment though there was sufficient evidence and material available before the trial court to award conviction to the respondents/accused. He also pointed out that accused Hidayatullah Machhi was identified in the identification parade by the complainant and P.Ws whereas accused Bahadur was nominated in 162, Cr.P.C. Statement of complainant, still the trial court has acquitted them while passing the impugned judgment. Learned D.P.G stressed upon his arguments that evidence of complainant and P.Ws so recorded in second time has not been considered by the learned trial court wherein they have implicated the accused/respondents. He prays that the respondents/ accused are liable for conviction.
7. We have heard the learned D.P.G and perused the impugned judgment as well as other record made available before us.
8. Complainant has stated that on 18.09.2011 at 11-00 p.m. He, Hidayatullah, Nasrullah, Muhammad Essa and Jamil were chit chatting at their otaq, where their cattle were also tethered. Electricity bulbs were glowing. At about 11:00 p.m. Of night 15 persons with deadly weapons came there.
Accused gave hakkals and abused them. Accused disclosed them that they have come there for committing dacoity. They were sitting on cots. His son Muhammad Esssa asked accused for not abusing. They identified three accused out of 15 to be Muhammad Saleh, with K.K, Ahmed, with rifle and Qurban with gun. Remaining accused were with open faces. They had guns and KKs in their hands. On resistance, accused Muhammad Saleh fired on his son Muhammad Essa which hit him, who fell down. Accused Ahmed fired upon Nasrullah and Jamil, they both also fell down. He and P.W Hidayatullah also fell down to save their lives. His cousin Hidayatullah succeeded in reaching over the Morcha, from where he fired upon accused. A fire of his cousin Hidayatullah hit to one accused Barkat Khoso on his left side of chest. Some of accused taken away injured accused Barkat Khoso and some of accused un-tied their four bullocks, and taken away the same. After covering some distance by accused, their 3 bullocks returned back. However, their one bullock and injured Barkat Khoso were taken away by accused themselves. He has further stated that they raised cries which attracted Rehmatullah, with rifle and Sher Muhammad at the place of vardat, who fired in the air but at that time, accused already had gone away. They found that injured Nasrulah and Muhammad Essa were severally injured and they were in serious condition. However, injured Jameel was not serious and he was in his senses. They shifted injured from place of incident to N.Feroze hospital. When he returned back at N.Feroze hospital, he found that his son Muhammad Essa was in serious condition. He could not see his son in that condition and went un-conscious. At about 1-00 a.m of night of 19.09.2001, the complainant came into senses. He was informed that his son Muhammad Essa has been shifted at his village. The complainant came at his village, where he came to know that his son Muhammad Essa succumbed to his injuries and has died. Then the complainant lodged the FIR of incident at P.S N. Feroze at 10:30 a.m. Thereafter police came at N.Feroze hospital, where dead body of his deceased son Muhammad Essa was lying. They prepared its Danistnama and mashirnama. At about 12:40 noon police visited the place of vardat on his showing. Police collected 30 empties of K.K, 12 empties of rifle and 18 empty cartridges of 12 bore. Police also collected blood stained earth from place of vardhat. On 20.09.2001, he produced clothes of his deceased son Muhammad Essa to SHO La! Bux Dahar. He has also stated that accused Ghulam Shabir had given the cutter to accused through which they cut the iron chains of his bullocks. Master Sulleman had instigated to main accused for committing the offence. In the year 2002 accused Saleh and an unidentified accused was arrested by police. The complainant identified the unidentified accused to be Hidayatullah before Judicial Magistrate, N. Feroze. He identified accused Hidayatullah to be the same, who was amongst the culprits who committed offence on 18.09.2001. Accused Bahadur was also arrested by police at the instance of accused Muhammad Saleh Machi. He was called at Police Station N.Feroze by its SHO, where the complainant identified accused Bahadur to be the same, who committed offence. Three other suspected accused were arrested by police and were brought before Judicial Magistrate, N.Feroze for their identification parade. He also appeared before Judicial Magistrate, N.Feroze, where he did not identify accused Imamuddin, Walidad and Ayaz. These accused Imamuddin, Walidad and Ayaz were not amongst the culprits who committed above offence. Injured Nasrullah was admitted in Nawabshah Hospital for about 11/2 months. Accused Walidad has been expired. Accused Imamuddin and Ayaz present in court are not his culprits. They both had not committed offence, as disclosed by him in his FIR. Accused Imamuddin and Ayaz present in court are innocent in this case.
However, accused Hidayatullah and Bahadur present in court are same, who had committed the offence. Accused Muhammad Saleh, Ahmed, Qurban, Ashique, Ali Akbar and Dodo are absconders in this case.
9. From the evidence of complainant it is clear that neither the names of accused Hidayatullah Machhi and Bahadur are mentioned in the FIR nor the complainant has stated in his examination- in-chief that with what weapon they were armed and A what role was played by them at the time of incident, hence the evidence of the complainant did not directly connect the accused Hidayatullah Machhi and Bahadur with the commission of offence.
10. Injured witness Nasrullah has deposed in his evidence that in all 13 accused persons came there. They identified three of them on the light of bulbs to be Muhammad Saleh, armed with Kalashnikov, Ahmad, armed with rifle and Qurban, armed with gun. All accused persons opened fire and out of them the fire shot made by accused Muhammad Saleh hit to deceased Muhammad Essa and the fire shot made by accused Ahmed hit him. He fell down and again accused Ahmed repeated the fire which too hit him. He went unconscious within moment and fallen down. He was taken to the hospital and regain his senses at Naushahro Feroze hospital. Thereafter sometimes he found himself in senses while at others he was out of the senses. He was in the meantime shifted to Civil Hospital, Nawabhah. Police had noted down the injuries on his person at Civil Hospital, Nawabshah and recorded his statement on 19.09.2001. He remained under treatment for about a month in the hospital. After return from hospital, Nawabshah he came to know that his nephew Muhammad Essa had died of the injuries. Accused Saleh and Ahmed have absconded away and they are not available before this court today.
11. Injured witness Nasrullah has not disclosed the name of accused Hidayatullah Machhi and Bahadur in his evidence he has not implicated accused person in this case.
12. Injured witness P.W Jamil Ahmad has stated that this incident took place on 18.09.2001 at about 11:00 p.m. At that time, he, complainant, Hidayatullah, deceased Muhammad Essa and P.Ws.
Hidayatullah and Nasrullah were available in the otaq. Suddenly, 15 armed persons came there.
Out of whom, they identified three to be Muhammad Saleh, armed with Kalashnikov, Ahmed, armed with rifle and Qurban armed with gun. The faces of the remaining accused were also open and they were clearly seen who were armed with different weapons. All the accused persons abused them and accused Muhammad Saleh fired from his Kalashnikov which hit to Muhammad Essa and thereafter he caused injures to him on his hand. Accused Ahmed fired which hit P.W Nasrullah. Thereafter the accused persons took their bullocks but later on freed the remaining bullocks and took away one. They raised cries and on such cries and firearm reports several peoples of village including P.W Sher Muhammad and P.W Rehmatullah came running with the licensed weapons and they also opened the fires in defense. In this process, one of the companions of the accused who was later on identified to be Barkat Khoso also sustained injures.
He was taken away by the accused persons but outside the village, he expired and his dead body was left away by the accused. Deceased Muhammad Essa and Hidayatullah were in serious condition and they were taken on cots. While he walked on foot to hospital but later on vehicle of police came and they were taken to hospital at Naushahro Feroze. Shortly after arriving at hospital, Muhammad Essa died of the injuries while injured Nasrullah was shifted to Civil Hospital, Nawabshah. The report of the incident was lodged by complainant Inayatullah on the following morning at P.S N.Feroze. Police had come to the hospital and noted down his injuries and recorded his statement there. He remained under treatment in hospital for about 8 days and then he took the treatment privately. Accused Hidayatullah present in court is same. Accused Muhammad Saleh and Ahmed have been absconded away during trial of the case.
13. Injured witness Jamil Ahmad has stated that accused Hidayatullah Machhi present in court is same but he has not assigned any role played by .Him , at the time of incident even he has not stated that with what weapon accused Hidayatullah Machhi was armed at the time of incident, he has not disclosed the name of accused Bahadur and thus his evidence also did not directly implicate the both accused in the commission of offence.
14. P.W Hidayatullah Rajper in his examination-in-chief has stated that this incident took place on 18.09.2001 at about 11:00 pm. He and complainant Inayatullah, deceased Essa and P.Ws Nasrullah and Jameel were sitting at their otaq in village Moosa Khan Rajper. Suddenly fifteen armed persons came there whom they saw and out of than identified three on the light of bulbs to be accused Saleh, armed with Kalashnikov, Ahmed armed with rifle and Qurban armed with gun, the remaining twelve accused were also clearly seen but they were not identified by them on the spot. They were also armed with rifles and guns. The said accused persons over powered them. Then they opened fire. Accused Saleh fired from his Kalashnikov which hit deceased Muhammad Essa while accused Ahmed fired two successive shots at P.W Nasrullah which also hit him. P.W Jameel also sustained bullet injury on the palm of his hand in the firing. The accused Hidayatullah present in court is same. Accused Muhammad Saleh and Ahmed have been absconded away during trial of this case. Accused Imamuddin and Ayaz present before the court were not identified nor seen by him at the time of incident. While accused Walidad has already been died due to his natural death during pendency of this case. However, subsequently, accused Bahadur was arrested in this case by police.
15. P.W Hidayatullah Rajper has not assigned any role played by the accused Hidayatullah Machhi and Bahadur and he has also not stated with what weapon accused were armed at the time of incident, thus his evidence also did not directly implicate the accused persons, namely, Hidayatullah and Bahadur.
16. P.W Sher Muhammad has stated that on the night of incident they heard fire arm shot coming from the otaq of complainant lnayatullah. He along with other persons went to the otaque of complainant. They found that the complainant's son Mohammad Essa, P.W Nasrullah and Jameel were lying injured. Complainant and witnesses disclosed that there were in all 15 accused persons, out of them, they had identified only three accused persons namely accused Ahmed and two others whose names he has forgotten, he has also not implicated the accused Hidayatullah Machhi and Bahadur.
17. The prosecution has examined P.W Medical Officer, Dr. Abdullah Kumbhar who has deposed that on 19.01.2001, he was posted as Senior Medial Officer at Civil Hospital, Naushahro Feroze. On that day at about 12:30 a.m. (night), he received the injured Nasrullah son of Muhammad Siddique Rajper, aged about 30 years, Jameel Ahmed son of Rehmatullah Rajper, aged about 25 years in injured condition for their examination, treatment and certificate under Police letter No, CR-92/2001, dated 19.01.2001 of Police Station Naushahro Feroze. He then first examined injured Nasrullah Rajper and found the following injures on his person:-
1. Penetrating fire arm injury measuring 01 cm x 1 m x 1/2 cm at right iliac fossa (wound of entry) with inverted margins with no charring.
2. Penetrating fire arm injury measuring 2m x 1 cm over upper part of right buttock (wound of exit) with averted margins with no charring.
3. Abrasion 7 cm x 2 cm x superficial on frontal aspect of right leg just above knee joint.
' The above injured was then immediately referred to P.M.C.H. Nawabhsha for proper and further treatment. He then issued such medical certificate showing the injures Nos.1 and 2 to be "Ghayr Jatfah Matalahimiah" while the third one to be 337-L(2), P.P.C. And all the above injuries were caused by some fire arm and the age of injuries was 1-2 houRs, ' He then examined the second injured Jamil Ahmed Rajper and found the following injuries on his person:--
1. Lacerated penetrating fire arm injury measuring 2 cm x 1/2 cm on back of right hand at the base of right thumb with no charring (wound of entry).
2. Lacerated penetrating fire arm injury measuring 3 cm x 2 cm on palmer aspect of right hand just above the little finger with no charring (wound of exit).
' The X-Rays were also which showed no any bony lesion. The above injuries were caused by some fire arm weapon and the age of injuries was about 1-2 hours and he then issued such medical certificate showing the injuries Nos.1 and 2 to be "Ghayr Jatfah Mutalahimah" . He then issued such medical certificate.
18. On the same day, he also conducted post mortem examination of deceased Muhammad Issa son of lnayatullah Rajper. He started his examination about 12:30 a.m. And finished it at about 1:30 a.m. (in the night time). After examination of the dead body of deceased Muhammad Issa, he was of the opinion that his death was caused due to fire arm injury.
' On examination of dead body of deceased Muhammad Issa, he found the following injury.
' Lacerate round shaped wound measuring 5 cm x 5 cm on right cheek below the right eye, supring skin, muscles fracture of bone.
' After examining the injured and dead body, he issued such certificates and say that they are same correct and bears his signature.
19. From the evidence of the medical officer and eye-witnesses complainant Inayatullah, injured Nasrullah, Jamil Ahmed and Hidayatullah Rajper, it is clear that deceased Muhammad Eisa expired.
Due to unnatural death by receiving the fire shot injuries.
20. Investigating Officer P. W .Inspector Manzoor Hussain had conducted investigation and his evidence is formal one. P.W ASI Sikandar Ali is mashir of arrest and recovery of accused Hidayatullah Machhi and otheRs, P.W Allah Bux is mashir of injuries on the person of injured. P.W S.H.0 Lal Bux had reached on the place of vardat and conducted initial investigation, ASI Khadim Hussain registered the FIR. Their evidence is formal and corroborative nature and did not directly connects the accused Hidayatullah Machhi and Bahadur with the commission of offence.
21. From the above evidence of complainant lnayatullah and eye-witnesses, namely, Nasrullah, Jameel Ahmed, Hidayatullah, it is clear that accused Muhammad Saleh had caused fire shot injury which hit to deceased Muhammad Eisa and in the result he expired. Accused Ahmed caused fire shot injuries with rifle to Nasrullah and accused Ahmed also caused fire shot injury to Jamil Ahmed.
Moreover, it appears that none of the above witness has stated that with what weapons accused Hidayatullah Machhi and Bahadur were armed at the time of the incident and what role was played by them at the time of incident and there is no direct and circumstantial evidence connecting the accused Hidayatullah Machi and Bahadur connecting them with the commission of offence.
22. In view of material discussed above, the learned State counsel has failed to point out any incriminating evidence connecting the accused Hidayatullah Machhi and Bahadur with the commission of offence. Therefore, the criminal acquittal appeal of the appellant was dismissed in limine along with listed application, vide short order announced by us on 09.11.2015 and these are the reasons of said short order.