Appellants above-named, being aggrieved by Judgment dated Ist February, 1979 of the learned Ex-Officio Additional Sessions Judge, Tharparkar, at Mirpurkhas, in Sessions Case No. 112 of 1976, by which' appellant Ahsan Ahmed Shah has been convicted under section. 365/302/?.07, P. P. C. And sentenced to suffer R. I. For five years under section 365, P. P. C. Life Imprisonment under section 302, P. P. C. And five years R. I. Under section 307, P. P. C. And appellant Khamiso has been convicted for the same offences under section 109, P. P. C. For abetment and awarded the same sentences, have preferred the above appeal, on the following facts and grounds :-
2. The prosecution story is that, Ghulam Rasool son of Jhando was married to Mst. Sain daughter of Khamiso (one of the appellant). The wife of Khamiso made an application to the District Magistrate Tharparkar under section 525, Cr. P. C. Who issued search warrant on 12-11-1969 addressed to the S. H. O. P. S. Digri for securing Mst. Sain.
3. It is the prosecution case, that on 26-11-1969 when complainant Jhando was at his cultivation, he heard gun fire reports. He came to his house and found the women-folk crying. Injured Khamiso and Dhano and other Santo and Najab Khan informed him, that appellant Khamiso (father of Mst.
Sain) Yousif, A. S. I. And four constables had entered in his house, when no male member of the house were present there. He was further infor--med, that they abducted Mst. Sain, from the house of Ghulam Rasool and maltreated their women-folk. He further informed, that Ghulam Ali deceased his brother Khamiso, his cousin and Dhano made inquiries from the appellant upon that, Ahsan Ali Shah on the instigation of Khamiso and Yousif (applicant) fired at them and caused injuries to them. The appellants then took away Mst. Sain in a jeep. After hearing this, the complainant took the injured and left for Digri and on the way, Ghulam Ali succumbed to the injuries. The complainant came at the Police Station Digri for lodging the report, but it was not recorded. He then left injured at the Digri dispensary and sent to Mirpurkhas, from where he sent a telegram to D.
M. And S. P. He himself met S. P., but. S. P. Told him, that he was speaking to the D. S. P. To record the complaint and D. S. P. Would do it. He came to Digri, but his complaint was not recorded, then be again went to Mirpurkhas and filed a direct complaint, before the District Magistrate, Tharparkar.
4. The learned District Magistrate forwarded the complaint to S. D. M. Mirpurkhas for disposal according to law, but on 30-12-1975, the case was sent to the Court of Session, under provisions of Law Reforms Ordinance 1975.
5. Main appellant Ahsan Ali Shah in his statement had stated, that F. I. R. Was lodged by him at P. S. Digri on 26-11-1969 (true copy produced in arguments). He has stated, that on 25-11-1969 Khamiso (father of Mst. Sain) brought a search warrant from D. M. Tharparkar for securing Mst. Sain wife of Ghulam Rasool. He told Khamiso to come on the next day. On that day vie., 26-11-1969, he alongwith the constables, Muhammad Hashim, Ismail, Hifazat Rasul and Abdul Rahim and P. Ws. Khamiso, mashirs Ghazi and Muhammad Soomar went in a jeep to the village of the complainant to secure Mst. Sain. He has further stated as under :- "We secured Mst. Sain in presence of her husband and prepared the necessary Mashirnama. I asked Ghulam Rasool husband of Mst. Sain to accompany us to the Court of D. M., but he refused.
We left the village and started for the P. S. In a jeep. When we covered about 200 paces. Najab Kaloi a relation of complainant brought an empty bullock cart and blocked the passage. About 80-90 persons came out of the sugarcane cultivation, and surrounded my jeep. They were armed with guns, hatchets and Lathis. I got out from the jeep and told them, that I had secured Mst. Sain under a search warrant issued by the D. M. Tharparkar and they should not take the law into their own hands, but they started pelting stones at my jeep and also attacked us. Ghulam Ali gave hatchet blow on my head and tried to snatch my service revolver from my shoulder. I pushed him away from myself but again he attempted to attack me. Therefore, I took out my revolver and fired at him in my self-defence. The other members of them attacked my companions and caused them lathies blows. They also tried to take Mst. Sain. Forcibly. Finding no other way, the members of the complainant party also fired on us and I cannot say how Dhano and Khamiso received the injuries.
I have filed such report and the complainant party has been challaned in that case under section 307/332/147/148/149, P. P. C."
6. The statements of three appellants Abdul Rahim, Ismail and Hafazat Rasul were as that of main appellant Ahsan Ali Shah. Appellant Yousif had denied the allegations and had stated, that he was not present there, at the time of incident. Appellant Khamiso also denied the allegations and had stated that his statement is same as that of co-accused Ahsan Ahmed Shah.
7. From the side of prosecution, Dr. Ali Ghulam (Exh: 13), Com--plainant Jhando (Exh. 17), Sahato (Exh. 19), Najab Exh. 20), Khamiso (Exh. 22) have been examined. Shankar Lal (Exh. 24) has been examined as Court witness.
8. The learned trial Court taking into consideration the evidence adduced before it, while acquitting rest of the co-accused persons, convicted and sentenced the appellants above-named as her-in- before mentioned and consequently the appellants have filed the above appeal, oar the grounds mentioned in the memo. Of appeal.
9. The learned Advocate for the appellants in support of the above appeal submitted as under
(a) That appellant Ahsan Ahmed Shah, as Sub-Inspector, Digri had lodged F. I. R. Against the complainant's party under section 307/332/ 147/148/149, P. P. C. In respect of the same incident, in which com--plainant's party was challaned. This report was lodged prior to private complaint. The learned trial Court failed to properly appreciate plea of self-defence raised by the appellants, as well as the fact that all P. Ws. Were accused persons in the counter case.
(b)That Mst. Sain, the bone of contention was not at all examined by prosecution in thiscase, to prove the allegations of the prosecution, that she was being abducted by the appellants and as such no reliance ought to have been placed on the statements of P. Ws., who were all accused persons, in the complaint lodged by appellant Ahsan Ahmed Shah.
(c) Prosecution has alleged no motive for allege firing by the appellants and have failed to explain injuries on persons of the appellants side and as such plea of self-defence stands proved. In support of this contention the learned Advocate for the appellants relied upon cases reported in 1971 SCMR 432, PLD 1962 SC 489-1974 SCMR 432 and PLD1954FC29.
10. In view of the above contentions, the learned Advocate for the appellant submitted that prosecution has failed to prove its case beyond reasonable doubt.
11. The learned Advocate appearing for the State, at the outset submitted, that he was not supporting the impugned judgment as learned trial Court has failed properly to appreciate plea of self-defence and in his opinion prosecution has failed to establish its case beyond reasonable doubt, by not examining Mst. Sain and by not explaining hatchet injury on the head of the appellant Ahsan Ahmed Shah.
12. I have carefully considered the above submissions of the learned Advocates made before me and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellants.
13. I find great force in the contention of the learned Advocate for the appellants, that the learned trial Court has failed to appreciate properly defence plea as raised in 342, Cr. P. C. Statement of appellants, which has prima facie been established by the F. I. R. Lodged by appellant Ahsan Ahmed Shah and production of certain documents in support thereof. It is well established law, that accused persons have not to prove their defence in the same way, as prosecution has to establish its case. As learned Trial Court failed to take into consideration this legal aspect and consequently by mere conjectures and presumptions arrived at certain conclusions and rejected the defence plea.
14. It may be noted, that complainant's side not only suppressed injuries on the persons of the appellants and acquitted co-accused, but denied knowledge of such injuries on the person of the appellants and acquitted co-accused persons. In addition to this all allege eye-witnesses of the incident were co-accused in the F. I. R. Lodged by appellant Ahsan Ahmed Shah and as such their statement about the allege incident required inde--pendent corroboration. Prosecution failed to examine Mst. Sain, on the ground that she would not support prosecution case, as she had subsequently obtained divorce from her husband Ghulam Rasool and was staying with appellant Khamiso. I find statements of P. Ws. Jhando, Sahato, Najab and Khamiso are not at all corroborated in material particulars, by so-called dying declaration of Khamiso son of Habat Exh. 26, which was produced by P. W. 6 Shankarlal, Mukhtiarkar, although said P. W. Khamiso has denied having given said statement. It may be noted, that statement of P. W. 6 Shankarlal, was not at all challenged in his cross-examination by the Advocate of the complainant.
15. Complainant party have alleged no enmity with appellant Ahsan Ahmed Shah and as such there was no motive at all for said appellant to restore to firing except in self-defence, as alleged by the learned Advocate for the appellants. I find great force in this contention of the learned Advocate for the appellants as well. In this connection cases cited by the learned Advocate for the appellants namely 1971 SCMR 432, PLD 1962 SC 489, 1974 SCMR 432 and PLD 1954 FC 29 are full', applicable to the facts of the present case, in my opinion.
15. Keeping in view the above observations and conclusions of mine, I am of the opinion, that prosecution has failed to establish its case beyond reasonable doubt against either of the appellants, as I se--- no reason to agree with the conclusions and findings of the learned trial Court, which are based on conjectures and presumptions, on the basis of some evidence perhaps recorded and produced in the counter case, arising out of F. I. R. Lodged by the appellant Ahsan Ahmed Shah, in respect of the same incident.
16. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit them by giving them benefit of doubt, as in my opinion defence plea and version of tile incident, as given in the statements of the appellants under section 342, Cr. P. C.
Is probable. Bail bonds executed by the appellants are hereby discharged.