' The appellants abovenamed, being aggrieved by judgment dated 31st August, 1982 of the learned Sessions Judge, Thatta, in Sessions Case No,15/78, by which appellants have been convicted under section 148, P.P.C. Arid sentenced to suffer R.I for 2 years each and have been convicted under section 302/149, P.P.C. And sentenced to suffer imprisonment for life and also to pay a fine of Rs,3,000 each or in default to suffer further R.I for 6 months and have been convicted under section 307/149, P.P.C. And sentenced to suffer R.I for 5 years each, and also to pay fine of Rs,2,000 each or in default to suffer further R.I for 4 months and have also been convicted under section 326/149, P.P.C. And sentenced to suffer R.I for 5 years each and also to pay a fine of Rs, 2,000 or in default to suffer further R.I for 4 months and under section 324/149. P.P.C. And sentenced to suffer R.I. For one year each, and finally under section 323/149, P.P.C. And sentenced to suffer R.I.For 6 months each, all sentences to run concurrently and further have been directed to pay compensation of Rs,3,000 each under section 544-A. Cr.P.C. To the heirs of the deceased and the injured persons Usman, Haji and _Hans& have preferred the above appeal on the following facts and grounds:-
2. The brief facts of the prosecution case are, that on 24th May, 1978 the complainant had gone to attend marriage ceremony of one Natho and Sulleman, in the village of Haji lshaque and reached there at about 8-00 p.m. The complainant was accompanied by his nephew Muhammad. Khan, More, Jiand and Ossu alias Usman. Appellants Daleel, Bhoro, Bhudo, Karim Bux, Haji and Karam Khan alias Karmi were also present in that party. After taking meals at about 9-00 p.m. Daleel objected to the presene of Ossu alias Usman and asked Haji Rahu to oust Usman from that party, as Daleel was said to be having matrimonial dispute with Usman. At this, Haii Rahu took away Usman to his village and they remained during night time in the village of Rahu. Haji Ishaque's and Haji Rahu's village is the one and the same. On the next morning i,e, 25th May, 1978 at about 10-00 a.m. a platform was arranged in the same village for the purpose of marriage ceremony and Natho and Sulleman arrived there. At that time these persons started changing their marriage clothes, while Haji Rahu and Usman also came there. Usman was brought by Haji Rahu. On seeing Usman, Daleel again told Rahu that the presence of Usman was seriously objected by him during night and he had again brought him and so his dead body would now be carried. Appellant Daleel then instigated appellant Bhoro, Budho, Haji, Karmi and Karim Bux not to spare Usman alias Ossu.
Appellant Daleel was armed with hatchet, Bhoro was carrying revolver, Budho was having dagger and so also Karmi was armed with dagger, while Haii and Karim Bux were armed with Lathis. On the instigation of appellant Daleel appellant Bhoro fired two shots from his revolver hitting Ossu alias Usman and Haji son of Maku. Budho then inflicted knife injury to Usman Muhammad, Khan and Jiand then attempted to rescue Usman. Appellant Daleel then caught hold of Muhammad Khan and asked Budho to give injury to Muhammad Khan and on this Budho gave knife blow to Muhammad Khan on his waist. Karmi gave knife/dagger blow to Jiand on his waist. Haji and Karim Bux gave Lathi blows to Muhammad Khan, Usman, Jiand and Haji son of Maku. About 100/550 persons were present at that time, in that marriage. They intervened and separated the parties.
The appellants abovenamed then went away alongwith their respective weapons and abusing the injured party. Complainant then brought injured Muhammad Khan, Jiand and Haji to Baghan hospital in the car of All Janayaro, while Usman was taken in the truck of Haji Rahu by Rahu himself to Thatta via Gharo. In the Baghan h'ospital injured Muhammad Khan succumbed to his injuries immediately on reaching there. Complainant leaving Haji, Jiand and also the dead body of Muhammad Khan with P.W.Ali Janyaro and Ismail at hospital went to P.P. Garho and lodged report.
3. Muhammad Yousuf was incharge A.S.I. P.P. Garho on 25th May, 1978. He recorded the report of complainant in Roznamcha and sent the copy of Roznamcha to Police Station, Ghorabari for incorporating the same in 154, Cr.P.C. Book. Then he prepared Mashirnama of injuries of Usman in presence of Mashirs Razu and Nazar Muhammad. He sent injured Usman to the hospital for treatment and certificate. He examined P.W. Haji Rahu on that day. Thereafter he left for Baghan hospital, where he prepared inquest report and Mashirnama of dead body of deceased Muhammad Khan, in presence of Mashirs Abdullah and Mitho. He also prepared Mashirnama of injuries of injured Jiand and Haji in presence of same Mashirs. He also examined injured Haji on that day. Thereafter he left for the place of incident, which was in deh Vikar. There was "chhana" of marriage. He secured blood-stained earth, blood-stained mat and bloodstained clothes from the place of incident in presence of Mashirs Abdullah and Nazar Muhammad. He prepared such Mashirnama. On the same day he went to Mirpur Sakro and arrested appellant Bhoro from Sakro hospital in presence of Mashirs Abdullah and Abdul Ghafoor under the Mashirnama. He obtained copy of Roznamcha NO by appellant Bhoro and handed over the case papers to S.H.O. Ghorabari for further investigation.
4. Muhammad Aslam was S.H.O. Ghorabari Police Station on 25th May, 1978. On that day he was at P.P. Pir Patho in some confidential enquiry, where he received telephonic message, that a murder had taken place in the jurisdiction of P.P. Garho. He immediately left alongwith his subordinate staff for Mirpur Sakro. Where A.S.I. Yousuf Incharge Police Post Garho met him,who handed over the case papers to him alongwith the arrested appellant Bhoro. He thereafter left for Mori No,132 and stayed there for the night and on 25th May, 1978, he went to the place of incident. On the pointation of A.S.I, he inspected the place of incident and found it according to the Mashirnama already prepared.
A.S.I. Thereafter produced P.Ws and complainant and they also stated the incident according to F.I.R. And statements. He examined P.Ws. Ismail, More, All Muhammad and Haji Qasim on that day.
Appellant Bhoro then was interrogated who voluntarily produced the revolver in presence of Mashirs Abdullah and Nazar Muhammad, from one abandoned house in village Misri Jokhio. The revolver contained two fired (empty) bullets. He prepared the Mashirnama in presence of Mashirs and sealed the revolver. Thereafter he came to the village of appellant Daleel in Deh Bhukhara, where he arrested appellant Daleel, Karmi, Karim Bux, Budho and Haji in presence of Mashirs. He secured hatchet from appellant Daleel and Lathi from appellant Karim Bux and Haji under the Mashirnama. Then he came to P.S., Ghorabari and lodged F.I.R. Under section 13-D, against appellant Bhoro. On 27th May, 1978 he examined injured Jiand and Usman and on the same day he interrogated appellants Budho and Karim and they agreed to produce the incriminating weapons in presence of Mashirs and towards Saddar bridge R.D.No,3 of the Inspection path appellant Budho produced one Chhura, from Sar grass bush. It was blood-stained,which he secured under the Mashirnama. Then appellant Karmi produced one knife from Sar Grass bush towards R.D. No,44 of Saddar Bridge. The knife was blood-stained which was secured and sealed under the Mashirnama.
After that he came to Police Station, Ghorabari, where he registered a case under section 13-D against appellant Budho. On 29th May, 1978 he examined P.Ws. Natho and Sulleman. He also sent the blood-stained articles and revolver to the Chemical Examiner and Ballistic Expert for their examination and report. After completing the investigation, he challaned the appellants in the Court of Civil Judge and F.C.M. Thatta on 10th June, 1978, who sent the case to the trial Court on 12th June, 1978.
5. The learned trial Court has examined the following witnesses: ' P.W. Muhammad lnamul Haq Exh.12, Complainant Abbas Exh.20, P.W. Haji Rahu Exh.22, P.W. Usman Exh.24, P.W.Jiand Exh.26, P.W. Haii Exh.27, P.W.Raza Muhammad Exh.28, P.W. All Muhammad Exh.30, P.W. Ismail Exh.33, P.W. Abdullah Exh.34, P.W. Muhammad. Aslam Exh.35, P.W. Muhammad Yousif Exh.36, P.W. Dr. Tulja Ram Exh.38 and P.W. Ghulam All Exh.39.
6. The appellants were examined under section 342, Cr.P.C., wherein they denied the allegations levelled against them. The appellants had not examined any witness in their defence.
7. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
8. The learned Advocate for the appellants in support of the above appeal submitted as under:-
(a) That ocular evidence is on conflict with the medical evidence, as none sustained firearm iniuries, although appellant Bhoro is alleged to have been used his revolver and the Ballistic Expert's report connects the empties recovered from the Vardat, with his revolver.
(b) That the hatchet allegedly recovered from appellant Daleel and Bhudo which were blood- stained, but there is no Chemical Examiner's report and as such the said recovery has no evidential value.
(c) That the provisions of section 149, P.P.C. Are not at all attracted in the present case, as there is no evidence on record to show any pre-meditation on the part of the appellants and as such where of common object and further more the incident in question took place in certain wedding all of a sudden. The learned Advocate for the appellants further submitted, that mere allegations that the appellants were armed by itself does not prima facie prove the existence of common object and conspiracy between them. In support of this contention the learned Advocate for the appellants relied upon case 1974 P Cr. L J 77.
(d) That injury to the deceased is attributed to appellant Bhudo only and in the absence of any evidence to attract the provisions of section 149, P.P.C. Conviction of the appellants for injuries received by deceased was not at all warranted. In addition to this the learned Advocate for the appellants submitted, that there was only one injury on the body of the deceased, and as such intention to murder cannot be established, as it was a sudden fight and chance meeting and in the face of admitted previous enmity, the offence, if any, committed by appellant Budho would also fall under section 335, P.P.C. Only and not under section 302, P.P.C.
In support of his above contentions the learned Advocate for the appellants relied upon cases PLD 1971 Kar. 68, 1977 5 C M R 7, 1969 SCMR 724 and PLD 1959 Lah.
405.
9. The learned Advocate for the State, on the other hand, submitted, that he was fully supporting the impugned judgment for the cogent reasons given by the learned trial Court. The learned Advocate for the State further submitted that the provisions of section 149, P.P.C. Were fully attracted in the present case, as all the appellants went armed and as such the common intention is to be presumed, specially in view of the statement of appellant Daleel at the time of the incident.
In support of these contentions of his, the learned Advocate for the State relied upon cases 1981 P Cr. L J 1277; 1977 SCM R 70, 1977 SCM R 133 and 150.
10. 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 the impugned judgment and the cases cited by the learned Advocates before me.
11. It is admitted position, that complainant's side and appellants had gone to attend a marriage party, where the incident is alleged to have taken place, on account of presence of Usman which was obiected to by appellant Daleel. In view of this question of pre-meditation, on the part of the appellants ipso facto does not arise. Even if the prosecution story is believed, that all appellants were armed as mentioned in F.I.R., the question of forming unlawful assembly with common object to murder deceased Muhammad Khan and to cause iniuries to other P.Ws. Cannot be presumed without some evidence to show such premeditated common object and formation of unlawful assembly, as a result thereof. In the present case, in my opinion, there is no such evidence on record to support this contention of the learned Advocate for the State. In view of this conclusion of mine, each appellant will be responsible for his own act, in the incident in question.
12.
12. Keeping in view my above conclusion, I find injury to deceased Muhammad Khan is attributed to appellant only, whereas knife injuries to P.W. Usman and Jiand are also attributed to appellant Budho. One injury on person of P.W. Jiand on waist is also attributed to appellant Karmi, whereas Lathi injuries to P.Ws. Muhammad Khan, Usman, Jiand and Haji son of Maku are attributed to appellants Haii and Karim Bux. It may further be noted, that fire-arm injuries are attributed to appellant Bhoro allege to have been received by P.W. Usman and Haji son of Maku, but according to medical certificate, said P.Ws. Did not have any such fire-arm injuries on their person. Instigation part is solely assigned to appellant Daleel only. According to P.W.1 Inamul Haq, Medical Officer Bughan, deceased Mohammad Khan had only one knife injury, whereas P.W. Jiand had two knife injuries,but were declared as simple. P.W.Haji son of Maku was also examined by this P.W. Inamul Haig, according to him said P.W. Had two simple injuries caused by thorn type of weapon. It is clear from the statement of this P.W., that no P.W. Had received any fire-arm injury, which were being attributed to appellant Bhoro. According to P.W. 13 Dr. Tuljiram, P.W. Usman had two simple injuries only. This shows that complainant party were exaggerating the injuries received by them and as such statement of each P.W. Is to be carefully appraised.
13. Prosecution case rests upon the statements of P.W.3 Abbas (Close relation of deceased), P.W.3 Haji Rahu (close relation of deceased), P.W.4, Usman (injured and alleged' to have enmity with appellant Daleel on matrimonial disputes), P.W.5 Jiand (injured) and P.W.6 Haji son of Maku (injured) and P.W.8 Al, Muhammad Johiro (in default) the alleged eyewitnesses and P.W.10 Abdullah (Mashir note related to either party) of certain recoveries, from appellants.
14. In view of the admitted and obvious enmity between the complainants side and appellants, no reliance can be placed on the statements of P.Ws. Without independent corroboration ,as prosecution witnesses are inter-related except for P.W.8 Ali Muhammad Johrio. Alleged recoveries of the weapons from the possession of the appellants cannot be used for purposes of corroboration, as there is no Chemical Examiner Report available for hatchets and Dandas, whereas Ballistic Expert Report is of no avail, as according to statements of P.W.1 and P.W.13 medical officers, there were no fire-arm injuries on the person of any injured.
15. I have carefully gone through the statements of all P.Ws. And I find from statements of P.W.2 Abbas, P.W.3 Haii Rahu, P.W. Usman P.W.5 Jiand and P.W.6 Haji Maku, that appellant Bhudo gave knife injury to the deceased, statements of these P.Ws. Is corroborated by the statements of P.W.8.
Ali Muhammad Johiro, who is independent witness and no enmity whatsoever is ,alleged against this witness by any appellants specially appellant Bhudo. In view of this, in my opinion prosecution has established beyond reasonable doubt, that fatal injury to deceased Muhammad Khan was given by appellant Bhudo.
16. The only question, which requires consideration is whether offence committed by appellant Bhudo woulq fall under section 302, P.P.C.Or under section 304(1), P.P.C. Or under section 335, P.P.C.
As submitted by the learned Advocate for the appellants. I have already come to conclusion, that incident took place, without pre-meditation and suddenly between the parties, in a marriage. In addition to this, I find that Doctor, who performed post-mortem examination on the body of the deceased has not stated, that injury received by deceased was sufficient in ordinary course of nature to cause death. Therefore, in my opinion, offence committed by appellant Budho falls under section 304(1), P.P.C. And not under section 302, P.P.C, as held by the learned trial Court.
17. As far as injuries received by P.W. Usman, Jiand and Haji are concerned, there are material contradiction between P.Ws, including P.W.8 Ali Muhammad Johrio. In addition to this all such injuries received by P.Ws. Are described as simple by medical evidence.
18. Therefore, in my opinion, prosecution has failed to prove its case against appellants Daleel, Haji Karim Bux, Bhoro and Karam Khan beyond reasonable doubt and as such I set aside their convictions and sentences awarded to them by impugned judgment and acquit them by giving benefit of doubt and direct that these appellants be released forthwith, if they are not required in any other case.
19. As far as appellant Bhudo son of Yousif is concerned, I alter his Conviction from 302, P.P.C. To one under section 304(1), P.P.C., as far as the death of deceased Muhammad Khan is concerned and reduce his sentence from imprisonment for life to 8 years' R. I. And maintain the fine of Rs,3,000 imposed on him and in default to suffer further R.I. For six months and also to pay compensation of Rs,3,000 to the legal heirs of the deceased Muhammad Khan and in case of failure to pay such compensation under section 544-A, Cr.P.C. To suffer further R.I. For six months, However, I set aside conviction and sentences awarded to appellant Budho under sections 307/149, 326/149, 324/149, 323/149, P.P.C. As well as under section 148, P.P.C. And acquit him on these accounts for the same reasons, as other co-appellants. I further direct that benefit of provisions of section 382-B, Cr. P.C.
Be given to appellant Budho in respect of his period of detention as under-trial prisoner, after due verification by the Jail authorities towards his substantive sentence, in addition to all other remissions to which appellant may be entitled, in accordance with rules.
20. The above appeal stands disposed of in terms of the above judgment.