Appellant above named, being aggrieved by judgment dated 26th March, 1981 of the learned Sessions Judge, Sanghar in Sessions Case No. 139 of 1979, by which appellant has been convicted under section 304 (II) of the P. P. C. And sentenced to suffer R. I. For 4 years and a fine of Rs. 5,000 or in default of payment of the said fine to suffer further R.
1. For 3 months, while 4 other co-accused were acquitted, has preferred the above appeal on the following facts and grounds :-
2. Briefly stated the case of the prosecution is, that on 29-I1-1979 at about 8-30 a. m.,, all the co- accused alongwith appellant armed with hatchets and lathis formed an unlawful assembly and in the result, Arry caught hold of deceased Ali Muhammad, while he was ploughing the land, and accused Khamiso and appellant Ramzan caused him injuries by hatchet and lathi blows. This incident was witnessed by Haji Khan, Umer and Hasbim who were going in a jeep. Ramzan, who was going on Motor Cycle, also witnessed this incident. They reached wardat and then appellant and acquitted co-accused persons went away. Haji Khan sent Ramzan to inform Faqir Muhammad, brother of Ali Muhammad at Khipro and himself went to Police Station Khipro and lodged his report, Aleem was sent to hospital by police, where he died.
3. Motive for the appellant for committing murder of Ali Muhammad is said to be, that Ali Muhammad was Morosi Hari over the lands of appellant Ramzan and co-accused Arry. He used to live on same land. His brother Ghulam Muhammad was also Hari of Ramzan. He also used to live on same land. Ghulam Muhammad had paid Rs. 53,000 to Ramzan for purchasing the same land from him. Ghulam Muhammad was killed in 1971 War. After his death Ramzan neither finalized the same and nor returned this amount. He kept Faqir Muhammad and deceased on false hopes.
Appellant, therefore, tried to remove Ali Muhammad from the land. Ali Muhammad made apple-- cation to Mukhtiarkar Khipro. He was therefore killed.
4. During the course of investigation, A. S. I. Ghulam Siddique visited wardat and found injured Aleem lying there. He noted his injuries. He also found the land ploughed freshly. He also found yoke and plough there. He also found a blood-stained stick there, which he secured. He also found blood, which he secured and sealed. He sent injured to Civil Hospital, San,ghar for examination, treatment and certi--ficate. He then examined Hashim and Umer. On 30-11-1979 he examined Nazeer and Ramzan. On 2-12-1979 he arrested accused Khamiso, who produced one blood-stained hatchet from his house, which he secured and sealed. He also arrested appellant Ramzan who also produced a lathi. He then arrested accused Arry, Abduilah and Sajjan. On 4-12-1979, he got recorded confessions of appellant Ramzan and accused Khamiso, before Civil Judge and F. C. M.
Khipro. After usual investigation, Police sent up only accused Khamiso and appellant Ramzan.
Complainant Haji Khan made a direct complaint and in the result process was also issued against remaining three accused.
5. Appellant as well as acquitted accused had denied the allegations in their statements. Appellant Ramzan and accused Khamiso had alleged, that they were beaten by Police to make confessions.
Accused Arry stated, that Rajars wanted to take forcible possession of their lands. They managed this false case against them, After their arrest they forcibly occupied their 400 acres of land. He stated further, that Aleem had compromised the tenancy matter with him. His name also does not appear in Khasra Ghardawari.
6. Appellant as well as co-accused persons pleaded not guilty to the charge. They examined no witness in their defence.
7. The learned trial Court taking into consideration the evidence adduced by the prosecution convicted the appellant above named as herein abovementioned, while acquitting the other four co-accused persons and consequently the appellant above named has preferred the above appeal, on the grounds mentioned in the memo. Of appeal, and complainant has filed a Criminal Revision Application No. 42/81 for enhancement of the sentence awarded to the appellant: Since the above appeal and Criminal Revision No. 42/81 are connected, I propose to dispose of both these matters by this common judgment.
8. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That on the same set of evidence, the four co-accused persons were acquitted by the learned trial Court, but the present appellant has been convicted, on the basis of alleged motive, as corrobora--tive piece of evidence in utter violation of the law, as laid down by D. B. Of this Court, reported in PLD 1981 Kar. 1.
(b)That neither the State nor the complainant filed acquittal appeal and/or revision against acquittal of the 4 co-accused persons, as the evidence found against them was considered to be insufficient.
(c)That the lathi allegedly recovered from the appellant was not blood-stained nor it was sent to chemical examiner and as such no reliance on such recovery could be placed.
(d)That even the State has not challenged the conviction of the appellant by the learned trial Court under section 304 (II), P. P. C. And as such the revision filed by the complainant for the enhancement of the appellant sentence is not at all warranted under section 439, Cr. P. C. And in support of this contention, the learned Advocate for the appellant relied upon case reported in PLD 1972 Kar. 316.
9. The learned Advocate appearing for the appellant and respondent in Criminal Revision No. 42/81 in support of his above contention also relied upon cases reported in PLD 1972 Kar. 360, PLD 1952 Pesh. 25, PLD 1964 Kar. 428, PLD 1977 Lah. 1235 and PLD 1981 Kar. 1.
10. The learned Advocate for the applicant in Criminal Revision Application No. 42 of 1981, in support of the said petition submitted as under :- (a)That the sentence awarded to the applicant was inadequate, as benefit of section 382-B, Cr. P.
C. Were also given to the appel--lant, in spite of lenient sentence.
11. None appeared for the State.
12. I have taken into consideration the above submissions made by the learned Advocate before me and have gone through the record and proceedings of the learned trial Court as well as the impugned judgment and the authorities cited by the learned Advocates before me.
13. I find from the impugned judgment, that learned trial Court ha not believed recovery of laihi from the appellant nor relied upon hi retracted judicial confession, but only on the basis of alleged motive, while acquitting other 4 co-accused has convicted the present appellant, by holding motive, as piece of corroborative evidence against him. In this connection, the learned Advocate for the appellant has relied upon case reported in PLD 1981 Kar. 1.
14. The learned trial Court has admitted in its impugned judgment contradictions interest between the P: Ws. And for cogent reasons has not believed them in respect of four acquitted accused persons. Keeping in view this fact on record and admitted enmity with the appellant on account of land dispute,. Reliance only on motive for conviction of the appellant was not warranted in my opinion, as motive is double-edged weapon, in view of law laid down by D. B. Of this Court in case reported in P L I) 1981 Kar.
1. In. My opinion appellant's case, as far as evidence lead by prosecution, is on some fours with the acquitted accused persons. Further it may be noted, that the learned trial Court came to conclusion, that appellant caused the injuries in question to deceased in order to prevent him from ploughing his land and appellant had no intention -to kill deceased and did not use deadly weapon. In view of this conclusion arrived at by the learned trial Court, with which I am in fall agreement, the right of private defence of property was prima facie available to the appellant, in my opinion and as such this fact cannot also be ignored. In view of the weapon (lathi) used by the appellant, it cannot be said appellant exceeded right of his private defence. Takin into consideration, all these facts on record, in my opinion prosecution has failed to establish its case, beyond reasonable doubt against the appellant as well, on the same basis as four acquitted accused persons.
15. Therefore I allow the above appeal and set aside conviction and sentences awarded to the appellant and acquit him by giving benefit of doubt and direct that he may be released forthwith, if not required in any other case. In view of this, I also dismiss the Revision Petition No. 42 of 1981.