Appellants above named, being aggrieved by judgment dated 16-7-1979 of the learned Sessions Judge, Dadu, in Sessions Case No. 250 of 1976, whereby appellants have been convicted under sections 302, 307, P. P. C. Read with section 149, P. P. C. And under section 148, P. P. C. And sentenced to suffer imprisonment for life, R. I. For 7 years and R. I. For one year, respectively all sentences to run concurrently in addition to this appellants were directed to pay compensation of Rs. 2,000, Rs. 1,000, and Rs. 200, respectively to the heirs of deceased, to injured Ghulam Hyder and injured Manzoor Ali, failing which to suffer further R, I. For 6 months, 3 months and one month, respectively, have filed the above appeal, on the following facts and grounds:- The facts of the prosecution case briefly described are as follows:- On 8-10-1975 at 10.15 a. m. One Haji Muhammad Bux filed his F. I. R. At Police Station Mehar wherein he stated as under:- ---Complaint is that I live in Bahawal Gorar village. Today via. 8-10-1975 1 left my village at about 8 a. In. And came and stood on the road in order to go to Mehar. Ahmed son of Jumo Gorar was also sitting at the stand. After a while a Bus came from Larkana side. I and Ahmed sat in it and we reached Mehar at about 9.15 a. m. We got down from the bus at stand near Kakool. I and Ahmed saw Ghulam Hyder son of Muhammad Azeem Gorar and Ali Muhammad Brohi standing near the Cabin of Abdul Sattar Mahesar. I and Ahmed met them. Meanwhile Haji Abdul Majeed Gorar also came from the Town. He met us. Thereafter, I, Ahmed and Haji Abdul Majeed left for the Town leaving behind Ghulam Hyder and Ali Muhammad. We were gping when, we saw Zamir son of Meeran, Irnamuddin son of Faiz Muhammad, Khairo son of Kamal, Saindad son of Darya Khan, Madadali son of Beg Muhammad and Himat Ali son of Beg Muhammad by caste Sihools residents of Mahi; Sihool village standing in front of the hotel of Abdullah Brohi. Imamuddin Khairo, Madadah and Saindad were armed with hatchets. Himat had a lathi whip Zamir was armed with a Revolver.
Zamir challenged Ghularn Hyder and Ali Muhammad abused them and fired his revolver which hit Ali Muhammad. Khairo and Saindaed ran towards Ali Muhammad and gave him hatchet blows with sharp side on his head. Imamuddin ran towards Gh.Ulam Hyder and gave him a blow with, sharp side on his arm, whereby his hand was severed from the wrist. Madadali gave hatchet blow with sharp side to Ali Muhammad on his shoulder. Manzoor Hajjam tried to separate the quarrel.
Madadali gave him hatchet blow with sharp side on his head and Himat Ali gave him lathi blows.
Zamir was firing from his Revolver continuously. We were raising cries but did not go near due to fear. After Ghulam Hyder, Ali Muhammad and Manzoor fell down, all the above named accused went away abusing by Beto road on eastern side. We did not follow them due to fear. Thereafter I, Ahmed, Haji Abdul Majeed and others got the injured carried to the police station and I have come to file report. Few days back this incident Ali Muhammad and others had quarrel led with accused Imamuddin and Zamir near their village and hence there was dispute going on betaveen the parties. It was therefore that all the above named accused had come together and gave injuries to the injured in order to kill them. Injured Ghulam Hyder is my caste fellow and Ali Muhammad Brohi is friend of Ghulam Hyder. I file report investigation be made."
At 10-45 a. m. On the same day via. 8-10-1975 Imamuddin son of Faiz Muhammad (accused) filed F. I. R. At Police Station Mehar which runs as under.
"Complaint is that I live in village Mahi Sihool. About 10 to 11 days back Hyder Gorar, Ali Muhammad Brohi, Muttaza Gorar and Akbar Gorar had quarrelled with me and Zamir (accused) and had caused us injuries. We used to visit Mehar for treatment of those injuries. Today via. 8-10-1975 at about 7-W a. m. I, Zamir and Madadali left our village, entered into, a bus and reached Mehar at about 8 a. m. Thereafter we went to hospital for treatment of the injuries. At about 9.30 a. m. We returned from the hospital and came near the hotel of Abdullah Brohi, we saw Ali Muhammad Brohi, Hyder Gorar residents of Nai Hussainabad, Shahan and Ahmed residents of Bahawal Gorar sitting on the benches near cabin of Abdul Sattar Mahaser. On seeing us they started teasing us by putting their hands on their mustaches and raising peculiar sounds. We prevented them from so doing, on which Hyder abused, us took up a hatchet and tried to assault us. Hyder gave me hatchet blow with sharp side on my right hand. Shahan gave a hatchet blow with sharp side on the head of Madadali. People intervened and separated the quarrel. I did not know these persons who intervened nor I could identify them if they were shown to me. At the time of quarrel I and Madadali had hatchets. The accused had also received injuries in quarrel. We have kept those hatchets with us. I present myself and file complaint, investigation be made."
The F. I. R. Of this crime was registered as Crime No. 93 of 1975 while the counter F. I. R. Was registered as Crime No. 94 of 1975 at Police Station Mehar.
After recording F. I. R. Exh. 7 (Crime No. 93 of 1975) A. S. I. Ahmed Khan sent injured Ali Muhammad and Ghulam Hyder to Medical Officer, Mehar for examination, treatment and certificate as they were in serious condition. P. W. Manzoor Ali had also accompanied complainant to the Police Station. He recorded his statement. He had seen his injuries in presence of Mashirs. Haji Muhammad Suleman and Gullab Khan and prepared Mashirnama Exh.
14. He sent the injured to Medical Officer. Mehar for examination, treatment and certificate. On the same day at 10.45 a. m.
Appellants Imamuddin and Madadali appeared at the police stktion, where Imamuddin lodged his F. I. R. Exh. 41 (Crime No. 94 of 1975). He interrogated appellant Imamuddin in this case. He had injuries on his person. He arrested him in presence of the same Mashirs and secured from his person one shirt and one towel which were both blood-stained. These were packed and sealed on the spot and such Mashirnama Exh. 15 was prepared. He interrogated appellant Madadali and arrested him in presence of the same Mashirs. He secured blood-stained shirt from his person. He packed it and sealed it on the spot. He prepared Mashirnama Exh.
16. He had also injuries on his person, which he saw in presence of Mashirs Photo Khan and Mumtaz and prepared Mashirnama Exh.
42. In the meanwhile he received information through P. C. Niaz Hussain, that injured Ali Muhammad expired in Civil Hospital, Mehar. He proceeded there and saw dead body of Ali Muhammad. He prepared Mashirnama Exh. 17 in presence of Haji Muhammad Sulleman and Gullab Khan. He held inquest over dead body in presence of the same Mashirs and prepared inquest report Exh.
18. Dead body was sent to Medical Officer, Khairpur Nathan Shah for post-mortem examination, through P. C. Ali Akbar as Medical Officer, was not available at Mehar. He recorded statement of P. W. 6hulam Hyder at Mehar dispensary and prepared Mashirnama of his injuries Exh.
19. The injured was then sent to Khairpur Nathan Shah hospital, from where he was sent to Civil Hospital, Dadu. He then went to the Vardat of this case and saw it in presence of the same Mashirs at the pointation of the complainant Haji Muhammad Bux. The Vardat was on the Indus Highway, which goes from Dadu to Larkana and it was situated near the Cabin of Abdul Sattar Mahase'r in Mehar Town. There was blood at the Vardat, which was secured, packed and sealed on the spot.
There was also at another place. It was also packed and sealed. He prepared Mashirnama Exh. 20.
He returned to police station and interrogated appellant Imamuddin in presence of the same Mashirs, who volunteered to produce crime weapon hatchet. He led them towards eastern side of the town to the lands of Azeem Punjabi. The appellant produced one hatchet from Babar tree. It was blood-stained. It was lying concealed there. He secured hatchet packed and sealed it on the spot and prepared Mashirnama Exh.
21. He interrogated appellant Madadali, who volunteered to produce hatchet. He took them to the lands of Azeem Punjabi and produced one hatchet which was lying conceded in Babar tree, about three paces away from the place where appellant Imamuddin had produced hatchet. The hatchet was blood-stained. He secured it, packed it and sealed it on the spot. He prepared Mashireama of Vardat in the counter-case Exh.4. He had referred appellant Imamuddin and Madadali to Medical Officer, Khairpur Nathan Shah for examination, treatment and certificate as Medical Officer, was not available at Mehar. He examined P. Ws. Ahmed, Abdul Majeed, and Abdul Sattar. On 9-10-1975 he went to village Mahi Sihool and arrested appellant Zamir alias Ghazi Khan from the Otak of Saindad, in presence of Mashirs Haji Muhammad Sulleman and Gullab Khan and prepared Mashirnama Exh.
23. He interrogated appellant Zamir, who volunteered to produce crime weapon, viz. Revolver. He voluntarily led police and Mashirs to his house and produced his licensed revolver and four empties bullets of 32 bore from the bag. The revolver was in cover and leather. It was in working order. He was packed and sealed on the spot. The empty bullets were also separately sealed. He prepared Mashirnama Exh. 24 then returned to police station. On 11-10-1975 lie examined P. W.
Abdullah. On 12-10-1975 he again went to village Mahi Sihool, where be arrested appellant Khairo, Saindad and Himat Ali in presence of Mashirs Haji Muhammad Sulleman and Gullab Khan and prepared Mashirnama Exh. 25.
Appellant Khairo had injury on his person. He prepared Mashirnama Exh.
26. Appellant Khairo was interrogated. He volunteered to produce crime weapon a hatchet. He voluntarily led police and Mashirs to the lands of Dadan Sihool and produced one hatchet, which was lying concealed in Sar Bushes. It was blood-stained. He secured it packed and sealed it on the spot. He prepared Mashirnama Exh.
27. He interrogated appellant Saindad, who volunteered to produce crime weapon viz. Hatchet. He also led police and Mashirs voluntarily to the lands of Dadan Sihool and produced one hatchet which was lying concealed in Sar bushes. It was blood-stained. He secured it packed it and sealed it on the spot and prepared Mashirnama Exh.
28. He interrogated appellant Himat Ali, who volunteered to produce lathi. He took them to the lands of Dadan Sihool and produced one lathi which was lying concealed in Sar bushes. It was blood-stained. He secured it packed it and sealed in on the spot and prepared Mashirnama Exh.
29. On 21-10-1975 he got 164, Cr.
P. C. Statements of P. Ws. Ahmed, Abdul Sattar and Abdul Majeed recorded in the Court of Mukhtiarkar and F. C. M., Mehar. On 22-10-1975 163, Cr. P. C. Statement of P. W. Manzoor was got recorded before the same Court. He handed over case papers to S. H. O. After completing entire investigation, who challaned the appellants in the Court of Civil Judge and F. C. M., Mehar, Blood- stained articles were sent to Chemical Examiner. He has produced Chemical examiners report Exh.44. Receiver and empty bullets secured from appellant Zamir were sent to Ballastic Expert whose report is Exh. 45.
The appellants were thus sent up to the Court to stand their trial as stated above.
When charge under section 148, 302-307 read with section 149, P. P. C. Were read over and explained to the appellants above named, they did not plead guilty to the charges.
Prosecution had examined P. C. Ali Akbar Exh. 5, complainant Muhammad Bux Exh. 6, who has produced F. I. R. Exh. 7, P. W. Ghulam Hyder Exh. 8, P. W. Manzoor Ali Exh. 9, P. W. Ahmed Exh.
10. P. W.
Abdul Sattar Exh. 11, Mashir Haji Muhammad Sulleman Exh. 13, who has produced various Mashirnamas Exhs. 14 to 29, Tapedar Muhammad Parial Exh. 32, who had produced sketch Exh. 33, Dr. Abdul Khaliq Exh. 34, who has produced post-mortem notes Exh. 35 and medical certificate in respect of P. W. Manzoor Ali Exh. 36, Dr. Versimal Exh. 37, who has produced medical certificate in respect of the injured P. W. Ghulam Hyder Exh. 38 and letter to Police Exh.
39. A. S. I. Ahmed Khan Exh.
40 who has produced attested copy of F. I. R. In counter-murder case Exh. 41, Mashirnama of injuries on person of appellants Imamuddin and Madadah Mashirnama of wardat in the counter-case Exh.
43, Chemical Examiners report Exh. 44 and report of Ballastie Expert Exh. 45.
Under his statement Exh. 46 the learned D. P. P. Had closed the prosecu--tion side.
Appellant Imamuddin in his statement Exh. 47 denied allegations and pleaded innocence. He further stated that he was given injuries by P. W. Ghulam Hyder for which be had filed F. I. R. Exh. 41.
He alleged enmity with P. Ws. And states, that they are related inter se.
Appellant Madadali in his statement Exh. 48 denied all allegations and pleaded innocence. He stated that the injuries were caused to him by P. Ws. He alleged enmity with the P, Ws.
Appellant Zamir Hussain alias Ghazi in his statement Exh. 49 denied all allegations and pleaded innocence. He also alleged enmity with the P.W.s Appellant Khairo in his statement Exh. 50, denied all allegations and pleaded innocence. He stated that Imamuddin is his grandson and therefore he has been involved in this case.
Appellant Saindad in his statement Exh. 51 denied all allegations and pleaded innocence. He alleged enmity with the P. Ws.
Appellant Himat Ali in his statement Exh. 52 denied all allegations and pleaded innocence. He alleged enmity with the P. Ws.
The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
The learned Advocate for the appellants in support of the above appeal submitted as under:-
(a) Prima facie, it is a sudden fight and offence if any, committed by appellants would fall under section 304(I), P. P. C. And, not under section 302, P. P. C. As held by the learned trial Court.
(b) That in view of the facts of the incident, each appellant can only be responsible for his own act, in view of counter-version of the incident as given in counter F. I. R. Lodged on behalf of appellants side.
(c)That prosecution witnesses have not at all explained injuries on persons of appellants and as such no reliance can be placed on their statements. In support of this contention the learned Advocate for the appellants relied upon case reported in 1971 SCMR 432.
(d) P. W. Muhammad Bux and Mashir have admitted enmity between parties and as such no reliance can be placed on P. Ws. Without independent corroboration which is not available in present case. In support of this contention the learned Advocate for the appellants relied upon case reported in PLD 1981 Kar. 1.
(e) That there are material contradictions between recovery Mashir and I.O. And as such no reliance can be placed on such recoveries for pur--poses of corroboration.
(f)P. W. Ahmed and Ghulam Hyder are accused in counter-case and P. Ws. Were not believed by learned trial Court as far as acquitted co-accused Himat Ali is concerned and as such no reliance can be placed on evidence of such witness. In support of this contention, the learned Advocate for the appellants relied upon case reported in 1982 SCMR 1049 and 162.
(g) There are material contradiction in the statement of P. Ws. Inter se and as such no reliance can be placed on their statement without independent corroboration. Prosecution reliance on statement of P. W. 4 Manzoor Ali and P. W. 6 Sattar for purposes of corroboration is misconceived, as statement of these witnesses, also require indepen--dent corroboration, in view of contradiction between their statement and F. I. R. And complainant statement. In support of this contention the learned Advocate for appellants relied upon case reported, in PLD 1983 SC 79.
The learned Advocate appearing for the State, on the other hand sub--mitted that he was fully supporting the impugned judgment on following grounds:-
(a) P. W. 4 Manzoorali and P. W. 6 Abdul Sattar are independent witnesses against whom no enmity is alleged and these two P. Ws. Have corroborated prosecution case against appellants.
(b) Counter F. I. R. Confirms place of wardat and incident and presence of P. Ws.
(c) Statement of P. W. Abdul Sattar is straightforward and convincing. No enmity is alleged against him and he is completely independent.
(d) Recoveries from appellants have been fully established. In support of above contentions the learned Advocate for State relied upon cases reported in 1982 SCMR 1049 and 1971 SCMR 432, as will as cases reported in 1969 P Cr. L J 1085, 1971 SCMR 239, PLD 1954 SC77,1969 SCMR 599 and P L D1978 Kar.68.
I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocates before me.
Prosecution case rests upon the statement of P. W. 2 Muhammad Bux (complainant), P. W. 3 Ghulam Haider (relation-injured), P. W. 4 Manzoor Ali (Independent-injured), P. W. 5 Ahmed (relation) and P. W. 6 Abdul Sattar (independent) and on P. W. 7 Haji Sulleman, Mashir of alleged recoveries and chemical examiner and ballistic expert reports, both of which are positive.
Admittedly on account of counter F. I. R. (Aged by appellants in respect of the said incident; there are two versions of the incident available in present case. P. Ws. Have failed to explain injuries on person of the appellants completely nor the same are explained in F. I. R: However counter F. I. R.
Does disclose injuries received by complainants party, P. Ws. Ahmed and Ghulam Haider are co- accused in counter F. I. R. And as such their presence is admitted at the time of incident. Presence of Imamuddin, Zamir and Muhammad Ali appellants is also admitted in counter F. I. R. Both, F. I. R's. Were lodged half an hour of each other. It is clear from both F. I. Rs. That this was a chance meeting between the parties and as such question of premeditation and common intention does not arise in my opinion. It was sudden quarrel between the parties, no doubt due to admitted old enmity. In view of this each appellant will be responsible for his own overt act. Taking into consideration close relation between P. Ws. 2, 3 and 5 and admitted old enmity between the parties, statements of these three P. Ws., allege eye--witnesses need independent corroboration, in my opinion. Even the statement of P. W. 7 Haji Sulleman, Mashir of allege recoveries, also need independent corroboration as he is relation of P. W. Ghulam Haider and resident of 4 miles away from wardat, but happened to be there by chance. He also admitted, that co-Mashir Gullab was also his relation and also was a chance witness. P. W. 7 Haji Sulleman in his cross-examination has admitted long- standing enmity between parties, due to many previous cases, before this incident. There are obviously material contradictions between P. W. 7 Haji Sulleman and I.O. Which cannot be ignored.
In view of my above appraisal of prosecution evidence and conclusion no reliance can be placed on the statements of P. Ws. Muhammad tux, B Ghulam Haider and Ahmed, without independent corroboration. Prosecution for such corroboration relied upon the statements of P. W. 4 Manzoor Ali and P. W. 6 Abdul Sattar, both of whom are alleged to be independent witnesses of locality, where incident took place.
In my opinion statement of P. W. 4 Manzoor Ali itself requires corrobora--tion as his statement, that he received hatchet blow from sharp side on his head in the incident is not supported by medical evidence of P'. W. 9 Dr. Abdul Khaliq. According to him P. W. 4 did not have any hatchet injury on his person, but only simple injuries by blunt weapons. Therefore we are left with statement of P. W. 6 Abdul Sattar, the only independent: eye-witnesses of the incident; whose evidence alone can corroborate statements of P. Ws. 2, 3, and 5. I have carefully gone through the statement of P. W.-6 C Abdul Sattar. In my opinion his statement is straightforward and convincing. Even the State counsel submitted, that his statement ought to be preferred over the statement of P. W. 1 Muhammad Bux. According to P. W. 6 Abdul Sattar, he saw appellant Imamuddin giving hatchet blow to deceased Ali Muhammad so also appellant Madad Ali. This witness further stated, that appellant Zamir had fired twice or thrice, but he was .Not in position to say, who was hit by his fire. It is clear from the statement of this P. W.1 that deceased was given hatchet blows by appellants Imamuddin and Madadali only.
The other piece of corroborative evidence on which prosecution has relied is alleged recoveries made from appellants. I find material contradictions between P. W. Haji Sulleman, the Mashir and 10 regarding time of arrest of the appellants, as according to P. W. 7 Haji Sulleman, all Mashirnamas were prepared on the day of incident between 10 a. m. And 6 p. m. Whereas according to I. O. And Mashirnamas of arrest of appellants, it is not so. This witness came to give evidence before learned trial Court, on his own according to his admission in cross-examination, without receipt of summons. In view of these facts, in my opinion no reliance can be placed on such recoveries, in present case, for purposes of corroboration.
In view of my above appraisal of prosecution evidence and conclusions, in my opinion, prosecution has established its case against appellants Imamuddin and Madadali only and the cases cited by the learned Advocate for appellants are fully applicable to present case. In view of this, I see no force in the contentions of the learned Advocate for the State that appellants came with premeditation and duly armed to attack deceased and complainant party. I also see no force, in the contention of the learned E Advocate for State, that recoveries ought to be relied upon, in view of statement of I. O. J. Agree with the learned counsel for the State, that acquittal of co-accused Hatim Ali, by itself does not discredit the statements of P. Ws. There is no evidence on record so as to attract the provisions of section 149, P. P. C. As prosecution has failed to lead any evidence to establish common object between the appellants.
The only question which now requires consideration is what offence has been committed by appellant Imamuddin and Madadali, in view of the fact, that there is no evidence on record to prove, who actually caused fatal injuries to the deceased and in view of my conclusion, that each appellant will be liable for his own act, as it was a chance meeting, in P which incident took place, without premeditation. I have given careful consideration to this question. In the absence of medical evidence to show, that all injuries received by the deceased were grievous the offence committed by appellants would fall under section 324, P. P. C. Only.
Therefore I allow the above appeal as far as appellants Zamir Hussain, Khairo and Saindad and set aside their convictions and sentences awarded to them and acquit them by giving benefit of doubt and discharge the bail ponds executed by these appellants in above appeal.
However, I maintain the conviction of appellants Imamuddin and Madadali, but alter their conviction to section 324, P. P. C. Only and sentence each one of them to suffer R. I. For 3 years and to pay fine oft Rs. 5,000 each and also to pay compensation of Rs. 5,000 each to the legal heirs of deceased Ali Muhammad and in default of these payments to suffer further R. I. For 2 years, on each count.
I further direct that benefit of the provisions of section 382-B, Cr. P. C. Be given to the appellants Imamuddin and Madadali in respect of their respective period of detention as under-trial prisoners, towards their sub--stantive sentences, in addition to all other remissions to which said appellants may be entitled in accordance with rules.
Since appellants Imamuddin and Madadali are on bail, I cancel bail granted to them and direct the learned trial Court to issue non-bailable warrants for their arrest and on their arrest to remand them back to judicial custody to serve out remaining sentences awarded to them by this judg-- ment.