' The appellants abovenamed, being aggrieved by judgment dated 22nd January, 1980, of the learned Ilnd Additional Sessions Judge, Nawabshah, in Sessions Case No,906 of 1975, whereby the appellants have been convicted and sentenced to suffer imprisonment for life undeisections 302, P.P.C. Read with sections 149, P.P.C. And also to pay a fine amounting to Rs,1,000 each, to suffer R. I.
For 5 years under section 307, P.P.C. Read with section 149, P.P.C. And also to fine amounting to Rs,1,000, to suffer R.I. For 3 years and fine amounting to Rs, 1,000 each under sections 449, P.P.C. And 452, P.P.C. And to suffer R.I. For 6 months for an offence under section 148, P.P.C. And in default of payment of fine in respect of all offences under section 302, P.P.C. Read with sections 149, P.P.C., 307, P.P.C. Read with section 149, P.P.C. And under section 449, P.P.C. And 452, P.P.C. To suffer R.I. For 6 months each, all the sentences were to run concurrently, have preferred this appeal on the following facts and grounds.
2. The brief facts giving rise to the prosecution case are, that Mst. Bhambhi was legally wedded wife of present appellant Dhani Bux, at the time of incident of this case. It is said, that before incident in question, Stabo, brother of complainant Pir Muhammad, enticed away Mst. Bhambhi and he was keeping her in his house, but one or two days prior to this incident, Stabo had taken her away from his house to some other place. On the day of incident, about one pahar before sunset time, complainant Pir Muhammad, along with his brothers Allah Warayo, Allah Wasayo and Mst. Marium, daughter of Allah Wasayo were sitting in their respective house, within the same enclosure, along with other members of the family, such as P.Ws. Muhammad Suleman, Abdul Razaq and Muhammad Bux, who also reside in separate houses, but within the same enclosure. At that time, appellant Dhani Bux Naukhab and co-accused Majnoo. Sawan and Siddiq entered the complainant's house from northern hedge. Appellant Dhani Bux and Sawan were armed with rifles, whereas Majnoo, and appellant Naukhab had guns in their hands, but co-accused Siddiq was armed with a hatchet. After entering the house, appellants and other co-accused started abusing the complainant party and then started firing from their respective rifles and guns continuously at the complainant party, who raised cries of "murder!" "murder!" and praying for mercy. The appellants and other co-accused came up on the courtyard, which was common courtyard of all the houses mentioned above and where almost all the members of said houses were sitting at that time. Due to the continuous firearm shots, Allah Wasayo and Allah Warayo received rifle shot injuries. Din Muhammad received pellet shot injuries and Abdul Razaq also received gun shot injuries. Complainant Pir Muhammad and Suleman also received gun shot injuries. Mst. Marium received rifle shot injuries. At the same time, co-accused Siddiq gave hatchet blows to Allah Bux. In the meanwhile, P.W. Hakim Ali came on the cries and saw appellants and other co-accused firing shots from their respective firearms. Hakim Ali challenged the assailants, but they did not stop firing at the complainant party. After causing firearm injuries and hatchet injuries to Allah Bux as mentioned above, all the assailants, including above appellants went away to the north direction, after raising slogans, as well as firing in the air. Complainant Pir Muhammad received gun-fire injuries on his leg, which was not vital part of the body at the hands of accused Majnoo. Allah Wasayo and Allah Warayo received rifle shot injuries caused by appellant Dhani Bux and co- accused Sawan. After all the assailants went away, the injured persons asked complainant Pir Muhammad to proceed to P.P.Darya Khan Mari, for filing the F.I.R. Pir Muhammad saw injuries on the persons of all the abovenamed injured and then he proceeded on his horse back to P.P.Darya Khan Mari, where he lodged his F.I.R. Which was recorded by H.C. Bahadur Chand on 16th February, 1970 at 7 p.m.
3. The Investigating Officer recorded the F.I.R. And he prepared the Mashirnama of injuries on the person of complainant Pir Muhammad, in presence of Mashirs Murad All Khan and Ch. Jalal Din. He sent injured Pir Muhammad to Medical Officer Padidan for examination, treatment and certificate.
Investigating Officer Bahadur Chand dinformed the S.H.0 Padidan about the incident of this case on telephone. He took his sepoys and proceeded to the Vardat where he reached at about 8 p.m.
He found Din Muhammad, Abdul Razaq, Muhammad Suleman and Allah Bux lying injured on the Vardat. He prepared the Mashirnama of injuries on the person of each injured separately in presence of the Mashirs Muhammad Yousif and Muhammad Ramzan. He also saw the dead bodies of Allah Warayo, Allah Wasayo and Mst. Marium lying on the Vardat. He kept watch over the dead bodies during the night time. On 17th February, 1970, H.C. Bahadur Chand saw the Vardat in presence of same Mashirs and secured blood-stained earth underneath the dead body of each deceased person named above and sealed the same. He also secured six empties of .12 bore cartridges, 4 empty shells of rifle and one live bullet of rifle, which were lying at the Vardat and sealed the same separately in packets in presence of the same Mashirs. He also secured one hatchet, with broken handle, which was lying on the Vardat, in presence of the same Mashirs and prepared such a Mashirnama. He prepared the Mashirnama of Vardat in presence of the same Mashirs as per Exh.20 on record. He recorded the statement of Hakim Ali on that day and prepared inquest report of the three deceased and handed over the dead bodies to the Medical Officer Padidan, who was sent for the Vardat, for holding and conducting post-mortem examination of the deceased persons. A.S.I.P Saadat Ali Shah arrived at the Vardat and H.C. Bahadur Chand handed over the police papers of his investigation to him. A.S.I.P. Saadat Ali Shah handed over the police papers to A.S.I.P. Muhammad Mashir, who conducted further investigation, by recording the statements of P.Ws. Abdul Razaq, Din Muhammad, Allah Bux and Muhammad Suleman.
Muhammad Bashir handed over the police papers to S.H.O. Mehrab Khan. The prosecution case is that on 19th February, 1970, police arrested co-accused Siddiq, who was subsequently sent up in the court of the Civil Judge and F.C.M. Naushehro Feroze and ultimately tried by the learned Ex Officio Additional Sessions Judge, Nawabshah (Mr. Atta Muhammad A .Kazi) and convicted under sections 302/149, 307/149 and section 148, P.P.C. And sentenced to imprisonment for life, R.I. For five years and R.I. For six months respectively for the alleged offences. The said convict/accused preferred an appeal bearing Cr. Appeal No,62 of 1973 in the High Court of Sind, which was dismissed. Later on the present two appellants and one Tajo, were arrested by police and sent up for trial.
4. Appellants Dhani Bux and Naukhab have denied the prosecution allegations and proclaimed innocence. They are real brothers. They have stated, that the complainant party had enmity with their own people, who might have fought with each other and they have been implicated due to enmity. Accused Taj Muhammad alias Tajoo had stated, that his name is Tajoo and not Majnoo alias Mohabat and his father's name is Rajo and not Kadir Bux and therefore he is not the real culprit involved in this case. Apart from this, he was not Khoso by caste.
His plea was that S.H.O. Khipro has falsely challaned him under a false name.
5. The prosecution has examined Tapedar Manzoor Hussain, complainant Pir Muhammad, Din Muhammad, Mashir Muhammad Ramzan, H.C. Bahadur Chand, Hakim Ali, Abdul Razaq, M.P.C.
Abdul Razaq, Allah Bux and lastly A.S.I.P. Muhammad Bashir. The evidence of Dr. Muhammad Siddique has also been placed on record under section 33 of the Evidence Act by consent of the learned defence counsel.
6. The factum of the death of the deceased Allah Warayo, Allah Wasayo and Mst. Marium on account of fire injuries received by them in the incident in question, as well as injuries received by P.W. Abdul Razak, P.W. Din Muhammad, P.W. Allah Bux, and P.W. Pir Muhammad are not disputed.
Further this factum is also proved by the evidence of Dr. Muhammad Siddique, whose evidence was brought on record and who had performed post-mortem on the bodies of the said three persons and had examined the injured witnesses.
7. As far as the involvement of the present appellants in the incident in question is concerned, the prosecution has relied upon the ocular evidence of P.W.2 Pir Muhammad, P.W.3 Din Muhammad, P.W.6, Hakim Ali, P.W.7 Abdul Razaq, and P.W.9 Allah Bux, who have also disclosed in their statements, the motive for commission of the alleged offences.
8. P.W.2 Pir Muhammad in his statement before the trial Court stated, that Allah Wasayo and Allah Warayo were his brothers and Mst. Marium was the daughter of Allah Wasayo. He further stated, that Satabo is his brother and at the time of the incident, they all resided in separate houses, but in the same enclosure, on their own land in Deh Jari taluka Naushero Feroze. He further stated, that P.W.6 Hakim Ali was his relation, whose house was situated near their houses. This witness in his deposition before the trial Court stated that Mst. Bambi is the wife of appellant Dhani Bux and was on illicit terms with his brother Satabo and due to this appellant Dhani Bux wanted to kill her and therefore she came to the house of his brother Satabo and took shelter. Due to this appellant Dhani Bux accompanied by appellant Ghulam Rasool alias Naukhab, Majnoo and their father Qadir Bux went to Satabo and requested him to restore Mst. Bambi to them. According to this witness Satabo refused to accede to their request but wanted to produce Mst. Bambi before police. Later on according to this witness police came and took away Mst. Bambi and produced her before the Court, which set her at liberty. Thereafter Mst. Bambi used to reside with Satabo. According to this witness, because of this motive, on the day of incident, on which day his brother Satabo and Mst.
Bambi were not present, appellant abovenamed alongwith Majnoo, Sawan and Siddiq entered their house from northern hedge. Dhani Bux and Sawan had rifles in their hands, Majnoo and Naukhab had guns with them and Siddiq had a hatchet in his hand. According to this witness all the five persons started abusing them and thereafter started shooting, on which he and other members of his family raised cries of "murder!" "murder!" and pleaded for mercy, which was not heeded by the assailants. According to this witness Allah Wasayo and Allah Warayo his brothers received rifle shot injuries, P.W. 3 Din Muhammad received pellet injuries and P.W.7 Abdul Razaq received gun shot injury. He further stated, that Suleman and he also received gun shot injuries, whereas Mst. Marium received rifle shot injuries and Allah Bux received hatchet injuries at the hands of Siddiq. According to this witness P.W.6 Hakim Ali came on their cries and saw the assailants firing with arms and thereafter the above appellants along with abovenamed co- accused went towards northern side after raising slogans, as well as firing in the air. According to this witness, he had received injuries as a result of shot fired by Majnoo, whereas Allah Wasayo and Allah Warayo had received injuries from shots fired by appellant Dhani Bux and co-accused Sawan. He further stated, that as he was in a better position than the other injured persons, he proceeded to lodge the F.I.R. On horse back to P.P. Darya Khan Mari, where he lodged F.I.R. Of this case. He further stated, that he was referred by police to Padidan hospital. He produced F.I.R. As Exh.
14. He identified present appellants, but as far as the co-accused Tajoo was concerned he stated, that he was not the same person who was named as Majnoo by him in F.I.R. And stated that co- accused Sawan and Majnoo are still absconding. He further in his cross-examination stated, that after Mst. Bambi had come to stay with his brother Satabo, the appellant Dhani Bux had migrated from their village and there was no incident whatsoever between them and accused Dhani Bux, after his migration from the village in question. In his cross-examination this witness has denied the alleged enmity over the land. He further admitted in his cross-examination, that many persons had witnessed the incident from the other bank of the canal, on being attracted by firing.
9. P.W.3 Din Muhammad, P.W.7 Abdul Razaq, P.W.9 Allah Bux and P.W.6 Hakim All have corroborated the statement of P.W.2 Pir Muhammad fully, regarding the incident in question.
10. The learned trial Court after appraisal of the evidence produced by the prosecution and for the reasons given in its judgment convicted the above appellants as mentioned above and consequently the appellants abovenamed have filed this appeal, on the grounds mentioned in memo. Of appeal.
11. The first contention, that has been raised by the learned counsel for appellants was, that learned trial Court has convicted the present appellants on the basis of observations made in the judgment of this Court in Cr.Appeal No,62 of 1973, which was filed by co-accused Siddiq, but was dismissed and his sentence was upheld by this Court and as such learned trial Court has failed to apply its own mind for arriving at the conclusions and consequently the judgment of the learned trial Court cannot be sustained on this ground alone. In support of this contention, the learned Advocate for the appellants relied upon the case reported in PLD 1960 SC 18. I see no force in this contention of the learned Advocate for the appellants, as I find that learned trial Court has applied its mind to the evidence that was produced before it and after appraisal thereof for cogent reasons arrived at the conclusion in question. No doubt reference to the judgment of this court in Cr. Appeal No,62 of 1973, was made by the learned A.P.P. In his arguments, which arguments have been mentioned in the impugned judgment. In my opinion the judgment of this Court in the Cr.
Appeal No,62 of 1973 has been considered as authority relied upon by the learned A.P.P. And in respect of the law, that has been laid down by the said authority regarding evidence of interested witnesses only. The learned trial Court in respect of sentence to be awarded to present appellants has mentioned as thus. "I follow the judgment of the Hon'ble High Court in Cr. Appeal No,62 of 1973, in which the conviction of the accused Muhammad Siddiq was upheld" and thereafter has given the same punishment to the present appellants. I see nothing improper or illegal in this approach of the learned trial Court for determining punishment to be awarded to the present appellants. The authority cited by the learned counsel for the appellants in this connection is based on completely different facts and is not at all applicable to the present case, in my opinion.
12. The second contention that has been raised by the learned counsel for the appellants was, that no recoveries at all were made from the present appellants and as such in the absence of the corroborative evidence, no reliance ought to be placed on the testimony of P.Ws., who are related and interested witnesses, when enmity is alleged between the complainant side and present appellants. In this connection the learned counsel for the appellants relied upon cases reported in PLD 1973 SC 321: PLD 1981 Kar. 1 and PLD(?) Kar.
536. The learned Advocate for the State, on the other hand submitted, that the names of the appellants were mentioned in F.I.R, which was lodged immediately and the motive for the incident is also shown in the F.I.R. The learned counsel for the State further submitted, that statement of P.Ws in question has been corroborated by medical evidence and injuries on. The person of the P.Ws except P.W. Hakim Ali. The learned counsel further submitted, that the incident took place inside the courtyard and as such the only possible witnesses to such incident would be inmates of the house.
He further submitted, that there is nothing on record to show, that any other person, beside P.Ws came to the sight, no doubt some people who were attracted by firing had gathered on the other side of canal and as such it would be impossible for such persons to witness the incident and/or identify the assailants, at sunset time in the month of February from other side of canal. The learned State counsel relied upon the case reported in PLD 1960 SC 387.
13. I have carefully considered the above submissions of the learned counsel and have gone through the statements of all P.Ws examined by the prosecution. Their evidence have not at all been shaken in the cross-examination. The alleged enmity between the P.Ws and the present appellants has not been specified by the appellants at all. On the contrary, the motive suggested by the P.Ws for the incident in question, would A give cause for the incident to the present appellants. Presence of all P.Ws., except P.W. Hakim Ali was established by the injuries sustained by them. F.I.R. Was lodged immediately, in which the names of the present appellants are mentioned and specific part is assigned to them. I see no reason to disbelieve the evidence of P.Ws. Examined by the prosecution. The degree or extent of corroboration required, however depends on the facts of each case. Since F.I.R. Was lodged immediately, c there was hardly any time for fabrication or exaggeration. Medical evidence regarding the number and nature of injuries on the victims, fully corroborates the ocular evidence of these witnesses. No specific motive for false implication is suggested by the appellants. The mere fact, that P.Ws are related cannot be ground for disregarding their evidence. In my opinion the ocular testimony stands corroborated by medical evidence and the surrounding facts and circumstances. Therefore I see no force in this contention of the learned counsel for the appellants. The authorities cited by the learned counsel for the appellants are based on different facts. In this view of mine, I am fully supported by the case reported in PLD 1960 SC 387.
14. For the reasons given above, I dismiss the above appeal and maintain the conviction but alter the sentence to one of transportation for life, as B the offence took place on 16th February, 1970, before the promulgation of Law Reforms Ordinance, 1972.
' In calculating the term of life imprisonment, the period during which the appellants have remained in custody as under-trial prisoners, should be duly taken into consideration, as provided under section 382-B, Cr.P.C., by the jail authorities.