FAKHRUDDIN H. SHAIKH, J.-The two respondents, Khurshid Ali and his daughter Mst. Hamida were tried by the Addl. Sessions Judge, Hyderabad Mr. Khurshid Hassan Rizvi on a charge of offence under section 302, P. P. C. On three counts for having committed murders of Allah Bux, Hamid and Jam Arain on 17th July, 1975 at 7-00 a. m. At Deh Jaheka Taluka Hala. By his judgment dated 16th November, 1978 the learned Addl. Sessions Judge acquitted both the respondents of the offences they were charged with. The acquittal has been challenged by the State in Criminal Acquittal Appeal No. 87/1970. Complainant Muhammad Yousuf, who is brother of deceased Hamid, filed separate revision application against the same judgment. The appeal and revision were heard together and are being decided by this judgment. During the pendency of this appeal respondent Khurshid Ali was reported to have died on 22nd November, 1980. Such statement was made by Mr. S. A. Shaukat Naqvi, Advocate for the two respondents. On this statement a letter was addressed to S. P., Hyderabad asking him to ascertain from the people of the locality whether Khurshid Ali has actually died. In compliance with the direction of this Court the Superintendent of Police got an inquiry held and reported that respondent Khurshid Ali had died on 22nd November, 1980. This appeal, therefore, as against accused Khurshid Ali stands abated. The question that falls for determination now is whether Mst. Hamida respondent No. 2, was rightly acquitted by the learned trial Judge.
2. Respondent Khurshid Ali and his daughter lived on their land i.e. Survey No. 248, Deh Jaheki, Taluko Hala. They had a house on this land. Complainant Muhammad Yousuf, his brother deceased Hamid, his sister's son deceased Allah Bux and deceased Jam Arain, Hari of Hamid, also lived in the same Deb. The complainant and the deceased persons claimed that they were Haris of respondent Khurshid Ali on his land including Survey No. 248. The plea of the respondents had been that none of these persons were ever Haris on his land. On the contrary his plea was that the three deceased and the complainant along with P. W. Achar son of complainant were Haris of one Lutuf Ali Shah who resided in the neighbourhood and who had enmity with the respondents.
3. One the day of the incident i.e. 17th July, 1975 at about 7-00 a. m. The deceased Hamid started ploughing Survey No. 248. The case of the prosecution is that respondent Khurshid Ali asked deceased Hamid not to plough the land. P. W. Achar (son of complainant Muhammad Yousuf) and Jam Arain were also on the same land and were helping Hamid in ploughing the same. They persisted in ploughing the land in spite of protestation of Khurshid Ali. When the above persons did not stop ploughing the land, respondent Khurshid Ali who is alleged to have been armed with a single barrel gun fired at Hamid, who fell down injured. In the meanwhile Allah Bux also arrived there. He was also fired at as a result of which he fell down and died at the spot. Khurshid Ali then went inside his house and stood at his door when his daughter i.e. Respondent Mst. Hamida also came armed with a double barrel gun. There are different versions of the prosecution about the role of Mst. Hamida in this incident, which will be discussed in detail later. Some of the witnesses have deposed that she fired with the gun at Jam Arain who fell down injured, while other witnesses have said that she was only reloading the gun and was handing it over to her father Khurshid Ali and that it was Khurshid Ali who had fired at all the three persons i.e. Hamid, Allah Bux and Jam Arain. Both the respondents are then alleged to have gone inside their house.
4. On hearing the gunshot reports persons working on the neigh--bouring lands had come.
According to the F. I. R. Lodged by Muhammad Yousuf only P. Ws. Hussain and Achar had come and seen the incident, but in his evidence, names of P. Ws. Bhuro and Saindino were, also introduced as the eye-witnesses who had come and seen the incident. P. W Bhuro is son-in-law of complainant Muhammad Yousuf.
5. Complainant Muhammad Yousuf went to Matiari police station on a mare, which was eight miles away from the scene of offence and lodged report at 12-00 noon. The F. I. R. Was recorded by Mr. Muhammad Saleem S. H. O. He accompanied the complainant to the scene of offence and reached there at 1-15 p. m. Allah Bux was found lying dead in a pool of blood in the land of respondent Khurshid Ali. Injured Hamid and Jam Arain were still alive, but one of them namely, Hamid was conscious. For reasons best known to the S. H. O. No dying declaration of this man was recorded. Jam Arain was reported to be unconscious. Both these injured persons were sent to L. M.
C., Hyderabad' for examination and treatment. Hamid, however, died in the way before he could be produced at the hospital. Jam Arain was admitted in the hospital, but he too died after three days as a result of the gunshot injuries. Dead body of deceased Allah Bux was sent on the same day to Medical Officer, Matiari for post-mortem examination.
6. The S. H. O. Saw the scene of offence and secured blood-stained earth and sealed it into a parcel in presence of mashirs Muhammad Shah and Ghulam Nabi. He also prepared mashirnama of wardat and then called the accused persons from their house. Both of them came out on the first call of the S. H. O. Who interrogated both of them. They are alleged to have produced three guns and one pistol for which they held valid licences. These were secured and sealed. According to the S. H. O. Two of the guns were emiting smell of fresh powder. Some live cartridges were also secured from the respondents. Both of them were then arrested. Some empty cartridges were also found from inside the house of the respondents, while three empty cartridges were found near the gate of the enclosure of Khurshid Ali's house. The S. H. O. Also wrote to the Incharge Casualty Ward of L. M.
C. Hospital to hold post-mortem examination on the dead bodies of Hamid and Jam Arain, which was done. Statements of witnesses Achar, Hussain, Saindino and Bhuro were recorded. The weapons and the empty cartridges were sent to Ballistic Expert for examination and report.
According to the report of the Ballistic Expert, one empty cartridge was found to have been fired from a single barrel gun and another cartridge from a double barrel gun. None of these guns bore any number. It may be stated here that the guns which were examined by the Ballistic Expert were signed by him in order to make their identity certain. But the guns which were produced before the trial Court and this Court during the hearing of the appeal, neither bore the signature of the Expert nor those guns were without number. On the contrary both guns had numbers on them. The trial Court had, therefore, disbelieved the Ballistic Expert's report on the ground that the guns examined by the Expert were not the same which were secured from the accused and which were produced before the Court.
7. The case of the accused/respondents is that the case is false, that all the witnesses as well as the deceased persons are men of Lutuf Ali Shah and his Haris who have enmity with the accused/respondents, that they wanted to occupy their land forcibly and with this intention they had formed the crowd of 200 persons and attacked their house with guns. It is further alleged that people from the crowd which included complainant, P. Ws. And other had fired at them (respondents) and that some stray shots had hit Hamid, Allah Bux and Jam Arain as a result of which these persons had died. The respondents, however, admitted that they had also fired in self- defence in the air in order to scare away the crowd.
8. So far as the factum of death of deceased Allah Bux, Hamid and Jam Arain as a result of gunshot injuries, is concerned, there is no dispute about it. According to the prosecution witnesses, the respondents had fired at them and killed them. According to the respondents, the crowd, which included the deceased armed with fire-arms had raided the house of the respondents and fired indiscriminately at them, and that some of the stray bullets had hit the three deceased persons as a result of which they died.
9. This fact is further proved by the evidence of Medical Officer who had held post-mortem examination on their dead bodies. Dr. Ghulam Nabi (Exh. 32) has held post-mortem examination of the dead body of Allah Bux on the very day of the incident i.e. 17th July, 1975 at 5-00 p. m. He found three gunshot injuries on the person of this man as under (1)Circular lacerated wound about --" in diameter situated on right buttock upper lateral part about 2" below iliac crest.
(2)Lacerated circular wound on left thigh medial surface --" in diameter 7" above-knee. Skin around was slightly black.
(3)2 circular lacerated wounds margins everted 1 on fround on thigh about 1/2" in diameter 2" away from injury No. 2 and little below it. Second 3" lateral to injury No. 2 diameter 1/3" at the same level.
According to the Doctor injury No. 1 was individually sufficient to cause death of the deceased.
10. Dr. Muhammad Siddiq (Exh. 37) of L. M. C. Hospital, Hyder--abad had held post-mortem examination on the dead body of Hamid on 17th July, 1975 at 5-00 p. m. He found following injuries on his person :- (1)Multiple contused wound 2 m.m. In diameter deep on the left side of the abdomen, front of the whole of the left thing about 170 in number. The margins were irregular, contused and inverted (i.e. Entrance wound).
(2)A contused wound 1--" in diameter on the left foream upper part medially with an exit wound 2- -" on the left forearm on lateral side alongwith fracture of radius and ulna bones.
(3)A contused wound 1" in diameter just above the injury No. 2 with exit wound 1--" on the lateral side with compound fracture of radius and ulna bones.
All the above injuries were caused of discharge from a fire-arm and the cause of death was shock and haemorrhage as a result of the above injuries.
11. Dr. Abdul Majid of L. M. C. Hospital, Hyderabad had held post-mortem on the dead body of Jam Arain on 22nd July, 1975. He had only one injury namely, circular wound between 2 eye-brows 1/3" in diameter penetrating inside the cavity. On internal examination following damage was found: - (1)Circular hole in frontal bone corresponding to external injury about 1/3" in diameter with a linear fracture extending upwards 1" long.
(2)Blood under the whole of scalp in the frontal region.
(3)Membrane and brain lacerated and perforated. Whole brain sub--stance haemorrahage.
Two pellets were also recovered from brain substance. According to the Doctor, death was due to brain failure and shock caused by the above gun--shot injury.
12. The main question is whether the two respondents or any of them were responsible for causing the death of the three deceased persons. In support of this point following witnesses have been examined
(1) Complainant Muhammad Yousuf.Exh. 8.
(2) Achar (son of complainant).Exh. 14.
(3) Bhuro s/o Ali Bux. Exh. 22, and
(4) Hussain s/o Jummo.Exh. 24.
The other witnesses are Mashirs of wardat, recovery of guns and arrest of the accused by Mr. Muhammad Salim (Exh. 3), the Investigating Officer.
13. So far as complainant Muhammad Yousuf (Exh. 8) is con--cerned, the evidence at the trial Court is materially inconsistent with his F. I. R. Which is Exh.
9. In the F. I. R. Complainant Muhammad Yousuf does not describe himself as an eyewitness of the incident. On the contrary he says that on hearing gunshot reports he reached Survey No. 248 and found Allah Bux lying dead and Hamid and Jam Arain lying injured, that witnesses Achar and Hussain s/o Jummo were present there who told the complainant that respondents Khurshid Ali had fired at Hamid and Allah Bux while his daughter Mst. Hamida whose name he did not know earlier fired at Jam Arain. The complainant did not name any other person as witnesses of this incident except Achai and Hussain. Again in the F. I. R.
The very first sentence which he dictates to the S. H. O. Muhammad Salim is "I am working as Kamdar at the land of Haji Lutuf Ali Shah in Deb. Jaheki". In his deposition before the trial Court he has given absolutely different version. He says that he is Hari of Khurshid Ali, that he has no concern with Haji Lutuf Ali Shah and that he was present at the time when the respondents had fired at his brother Hamid, his nephew Allah Bux and Jam Arain. He further adds that besides Achar and Hussain, two other persons namely, Saindeno and Bhuro (son-in-law of the complainant) had also seen this incident. In cross-examination he was confronted with his F. I. R. Wherein he had stated that he was Kamdar of Lutuf Ali Shah. He denied that he had stated so in the F. I. R. His attention was also drawn to his application which he had made for cancellation of bail of the two respondents.
This application has been produced as Exh. 10: In this application which was drafted by his Advocate Mr. Abdul Salam Ansari, who represented the complainant in the trial Court, it was stated "complainant Yousuf is Hari of Haji Lutuf Ali Shah and his Kamdar also." The complainant denied having stated this fact in his application under section 497 (5), Cr. P. C. Or having instructed his Advocate about his being Kamdar of Lutuf Ali Shah. It is further stated in this application that Achar and Hussain only had seen this incident and that he himself was informed of the incident by these two persons. What is stated in his application, is thus a reiteration of the facts given by the complainant in his F.
1. R. Mr. Abdul Salam Ansari, Advocate could not have stated facts in the application under section 497 (5), Cr. P. C. Made on behalf of the com--plainant, without instructions of the complainant. This application was moved on 27th March, 1976 i.e. After about 10 months of the incident. It would, therefore, appear that for at least 10 months after the incident the complainant did not deem himself to be an eye-witness of incident but stuck to the story as was given in the F. I. R. However, when he was examined at the trial on 16th May, 1977 i.e. About 22 months after the incident, he had some second thoughts and represented himself, as eye--witness of the incident alongwith Achar, Hussain, Saindeno and Bhuro. Mr. Muhammad Salim S. H. O. Had categorically stated that he had taken down the F. I. R. Exactly as dictated by complainant Muhammad Yousuf. These circumstances would show that at least complainant Muhammad Yousuf is not a reliable witness. He has perjured himself by stating before the trial Court that he has himself seen the two respondents firing with guns at the three deceased persons. The evidence of this witness was, therefore, rightly rejected by the learned trial Court.
14. So far as the evidence of P. W. Bhuro (Exh. 22) is concerned, it must be kept out of consideration for two reasons. His name does not appear in the F. I. R. Had he been present and seen the incident, the complainant could not have omitted to mention him in the F. I. R. Secondly he is son-in-law of the complainant and, is therefore, an inte--rested witness. Even in his application for cancellation of bail (Exh. 10) which was made 10 months after the incident, the. Complainant does not mention the name of Bhuro as one of the eye-witnesses. He states in this application in unambiguous words "this incident was witnessed by Achar and Hussain". The evidence of P. W. Bhuro was, therefore, rightly disbelieved by the trial Court.
15. The only evidence that needs to be considered now is that of P. W. Achar (Exh. 14) and P. W.
Hussain (Exh. 24). Unfortunately the learned trial Judge has dealt with the evidence of these witnesses in a very summary manner due to which we had ourselves to scrutinise the statements of these two witnesses thoroughly to determine their credibility or other--wise. In fact the entire prosecution evidence was treated by the learned trial Judge in a summary manner, which shows that he did not apply his mind properly to the evidence on record in a case involving triple murder.
Appellate Courts have to give due weight to the assessment of evidence of witnesses made by the trial Courts as they have the opportunity of seeing the demeanour of the witnesses so as to determine their credibility. When there is no proper discussion of the evidence, nor the assessment is based on thorough scrutiny of the evidence of witnesses by the trial Court, then the burden of the appeal to Courts in such cases becomes heavy as they have to make their own assessment of the evidence after going through it thoroughly.
16. P. W. Achar is son of the complainant Muhammad Yousaf who has already been shown to be Kamdar and cultivator of Lutuf Ali Shah and who according to his own admission in the F. I. R. As well as in his application which he had made for cancellation of bail under section 497 (5), Cr. P. C.
Referred to above, has not claimed to have seen the incident himself. Achar has deposed that at the time of incident he and Jam Arain were ploughing the lards of respondent Khurshid Ali, that both the respondents came there armed with guns, that Khurshid Ali fired at Hamid and Allah Bux while respondent Mst. Hamida fired at Jam Arain and that Hussain, Saindino and Bhuro who were standing on their own land did not come to the scene of offence. However, in the same breath he says that they had come to the scene of offence after the respondents had gone into their house.
17. The most important question would be whether this witness was at all Hari of respondent Khurshid Ali. The Khasra Girdawaris pertaining to the period prior to the date of incident, produced in this case by the prosecution as Exhs. 16, 17, 18, 19 and 21, do not show that any of the prosecution witnesses including complainant Muhammad Yousuf, was ever Haris of respondent Khurshid Ali on Survey No. 248. However, Muhammad Khan Tapedar (Ex. 44) has stated that after this incident he had entered the names of Haris of respondent Khurshid Ali in Khasra Girdawari on 1st August 19.75.
This incident had taken place on 17th July 1975. Khasra Girdawari bearing the names of the Haris of Khurshid Alt has not been produced. In any case even if there has been any entry to the effect as stated by this Tapedar, the presumption shall be that it has been manipulated in order to create evidence for corroborating the version of the prosecution, because it was made after this incident.
If any of the P. Ws. Had been Haris of the respondent, then there was no reason why in the above- noted Khasra Girdawaris (Exhs. 16 to 19 and 21) none of them had not been shown as Hari on Survey No. 248.
18. Moreover there is one more significant admission on the part of P. W. Achar in his cross- examination. He states that his brother Mooso is Hari of Lutuf Ali Shah. If the father of this witness as well as his brother are Haris of Lutuf Ali Shah then there is every reason to believe that this witness is also Hari of the same man. Close association of this witness with Lutuf Ali Shah makes him an interested witness. The lands of Lutuf Ali Shah and the respondents are situated on the same water--course. It has been suggested in cross-examination to all the witnesses that the P. Ws. And Lutuf Ali Shah had, on the day of the incident, raided the house of the respondents in order to take 'forcible possession for Survey No. 248 which belonged to respondent Khurshid Ali. If none of the P.
Ws. Was Hari of respondent Khurshid Ali and still on the day of the incident they had come there to plough the land of Khurshid Ali, then it will be possible to believe the version of the respondents that the prosecu--tion witnesses had come to the scene of offence fully prepared to take forcible possession of the respondent's land.
19. The remarks which have been made in respect of evidence of P. W. Achar would equally apply to P. W. Hussain (Exh. 24). He admits in cross-examination to be Hari on the land of Lutuf Ali Shah although in examination-in-chief he says that he is Hari of one Hiromal. From these conflicting versions of the prosecution witnesses at least one thing can be said definitely i.e. That none of the P. Ws. Was Hari on the land of respondent Khurshid Ali. On the contrary it is established that all the wit--nesses including the complainant who claimed to have seen the incident are servants or Haris of Lutuf Ali Shah. Lutuf Ali Shah is a neighbouring Zamindar of respondent Khurshid Ali. They both have lands which are situated on the same watercourse. It is admitted by the complainant that land of Lutuf Ali Shah is situated on the upstream of the watercourse while that of Khurshid Ali respondent is towards the downstream. Neighbouring Zamindars whose lands are so situated have always tense relations with each other. We are, therefore, inclined to believe that all the so- called eye-witnesses ar., men of Lutuf Ali Shah, that they are inte--rested witnesses and that on the day of the incident they had gone to the land of respondent Khurshid Ali after having made preparation to take its forcible possession. No credence can be attached to such witnesses unless their evidence is corroborated by any material particulars. The cor--roboration referred to above is absolutely lacking in this case. It has been alleged by the learned counsel appearing for the State that the crime empties secured from the scene of offence were found to have been fired from the guns secured from accused/respondent Khurshid Ali, according to the report of the Ballistic Expert (Exh. 41). From this report it transpires that both the guns were without number and that the Ballistic Expert had put his signatures on the butts of the two guns after examining them so as to ensure their identity at the time same are produced before the trial Court. However, the guns which were produced before the trial Court did not bear signatures of the Expert. Moreover both the guns from which the empty cartridges were found to have been fired, were without numbers. The same guns were also sent for by this Court during the hearing of this appeal for examination. We found that the guns bore numbers and there were no signatures of the expert so as to determine that these guns were the same which were examined by the Expert. We are, therefore, of the view that the guns secured from the respondents were not sent to the Expert. On the contrary those were some other guns which were examined by the Expert and which have not been produced before the Court. It is, therefore, not proved that the guns which were secured from the accused persons were used in this crime. There is one more intriguing circumstances which makes the prosecution story highly doubtful. According to the evidence of Tapedar Muhammad Khan (Exh. 44) the incident had taken place about 143 ft. Away from the house of respondent Khurshid Ali. This would be evident from the sketch (Exh. 45) which the Tapedar has pronounced. Point 'A' is the spot where the dead bodies of Hamid and the other two injured persons were lying. This point has been shown to be 142 ft. Away from the house of the respondent Khurshid Ali, Now if the respondents had fired guns at these persons from their house, then the empty cartridges must have been secured from some place in the vicinity of point ---A---. But S. H. O. Mr. Muhammad Saleem in his deposition (Exh. 39) states that some empty cartridges were secured from inside the house of the accused and some from the gate of the enclosure of their house. This admission on the part of the S. H. O. Would, on the contrary prove that it was the complainant's party who had raided the house of the respondents and fired with guns at his house. The presence of empty cartridges inside the house and enclosure of the respondents cannot be explained on any other hypothesis except the one stated above i. e. It was the respondents who were victim of an armed attack by the complainant's party. We have, therefore, no reason to disagree with the conclusions arrived at by the learned trial Judge that in all probability the complainant's party was the aggressor and that on the day of the incident they had gone to the house of the respondents armed ~with fire-arms in order to take forcible possession of the land of the respondents. Had the respondents fired from their house at the deceased persons, then some empty cartridges must have been found lying near the dead body of Hamid, but none was recovered from there.
For the above reasons we are inclined to hold that the prosecution has failed to bring home the charge of murder to the respondent beyond a reasonable doubt. The appeal and the revision application are, therefore, dismissed. Respondent Mst. Hamida is already on bail. Her bail bond stands discharged.