' Appellants abovenamed, being aggrieved by judgment, dated 30th June, 1981, passed by learned Sessions Judge, Badin, in Sessions Case No,48/80, by which all the appellants have been convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and to pay compensation of Rs,1,000 each to the heirs of the deceased, have preferred this appeal, on the following facts and grounds:-
2. The case of the prosecution as disclosed by complainant Abdullah son of the deceased may be stated as follows:-
3. .Deceased Rehmat Ali had purchased 41 blocks of land in Deh Dubni, Taluka Tando Bago, upon which they had constructed their house. The house of the three appellants namely !Shag, Tufail and Muhammad Hanif and P.W. Ashraf were also situated on this land. Out of the above land measuring 41 blocks, the deceased had given 3 blocks to the three appellants on lease and the remaining 11 blocks was in their possession. The appellants had raised Makai on the land which had been leased out to them. One Muhammad Din and his brother appellant Tufail were working as Hans on this land.
4. On 26-9-1980 when the deceased was grazing the buffaloes in the land as usual appellant Tufail asked him not to graze buffaloes there. The deceased replied that he was grazing the buffaloes in his own land. In the meanwhile appellant lshaq also came there and threatened the deceased of dire consequences as the deceased had quarrelled with his Hari appellant Tufail.
5. On the next day i,e, 27-9-1980, at about 9.00 a.m. Complainant Abdullah, his father deceased Rehmat Ali and P.Ws. Ramzan and Ashraf were sitting in his house. Appellant lshaq came there and gave a call to his father from outside. His father responded to the call and went outside. After about 2 or 3 minutes they heard commotion and all of them immediate came out of the house and found that appellant !Shag was armed with a Lathi. Tufail was armed with a hatchet and Muhammad Hanif was armed with a big wooden arm of a cot. They saw appellant Ishaq causing a Lathi blow on the head of the deceased, while Tufail caused hatchet blow with its blunt side near the left eye- brow of the deceased. Appellant !Shag again caused Lathi blow on back side of neck of the deceased. Appellant Hanif also caused injuries to the deceased with the big wooden arm of a cot above his hips. They gave Hakals to the appellant not to kill the deceased, but the appellants threatened them that if they tried to intervene they would also be killed. After causing injuries to the deceased all the appellants ran away from the Vardat alongwith their weapons.
6. As a result of sustaining injuries Rehmat Ali had fallen down and he became unconscious. The above witnesses then removed Rehmat Ali in a Suzuki to Khoski police outpost,where complainant Abdullah lodged a report of the above incident at about 11-30 a.m., which was entered in the Daily Diary as Exh.16. The police gave the complainant a letter for Medical Officer,Badin. The deceased was first brought to Civil Hospital, Badin where the Medical Officer advise them to take Rehmat Ali to L.M.C.H. Hyderabad. Then they took Rehmat Ali in the Suzuki and reached L.M.C.Hyderabad, where Rehmat Ali died at 12-00 mid-night on 28-9-1980.
7. The above report Exh.16 was entered in the Daily Diary of Khoski police outpost at 11-30 a.m. On 27-9-1980 by P.Ws. Ghulam Muhammad, who was then posted there as A.S.I. The complainant had brought Rehmat Ali also in a Suzuki,who was unconscious at that time and he had injuries on his person. The A.S.I. Prepared Mashirnama Exh.9 regarding his injuries. He then referred the injured to Medical Officer, Badin, for examination and treatment as already stated above. The A.S.I. Then recorded the statement of P.W. Muhammad Ramzan who was present at the police outpost.
8. A.S.!. Ghulam Muhammad then came to the Wardat, which was situated inside the Kote in the house of deceased Rehmat Ali. There were 4 or 5 houses within that Kote. There were marks of struggle at the Wardat, but no blood was found there. The A.S.I. Prepared Mashirnama of Wardat, Exh.22. He then recorded statement of P.W. Muhammad Ashraf. He searched for the appellants, but they were not available at that time.
9. On 29-9-1980 A.S.I. Ghulam Muhammad again went in search of the appellants and could not find them. S.H.O., Lal Khan also arrived at the Wardat and the A.S.I. Handed over the case papers to him for further investigation.
10. Lal Khan P.W.11 was posted as S.H.O. At Pangrio Police Station when on 27-9-1980, he received a copy of the Daily Diary report Exh. 16, which he entered in 154, Cr.P.C. Register and recorded F.I.R. Exh.
29 on the basis of that report.
10. On 28-9-1980 S.H.O. Lal Khan went to the Wardat, where he met A.S.I. Ghulam Muhammad, who handed over case papers to him for further investigation as stated above. The S.H.O. Verified the investigation which was conducted by the A.S.I.P.
11. On 30-9-1980, S.H.O., Lal Khan arrested the three appellants near the village of Subedar Adlat Hussain. He prepared such Mashirnama Exh.23. He interrogated the appellants as a result whereof appellant Tufail led the police party and the Mashirs to his house and produced a hatchet, which was not blood-stained and was lying on the bags of wheat. S.H.O. Secured the hatchet vide Mashirnama Exh.24. Then appellant !Shag led the police and the Mashirs to his house and from under his bedding, he took out a Lathi which was not blood-stained and the same was secured vide Mashirnama Exh.25. Thereafter appellant Hanif led the police party and the Mashirs to his house and produced big arm of a cot, which was not blood-stained and the same was secured vide Mashirnama Exh.26.
12. On 8-9-1980 the S.H.O. Got the statements of P.Ws Ramzan and Ashraf recorded under section 164, Cr.P.C. After completing the investigation the S.H.O., challaned the appellants,who were sent upto face trial, as already stated.
13. In support of its case, the prosecution has examined 12 witnesses before trial Court. P.W.1 Dr.Muhammad Siddik was posted as M.O., Medico-legal section, L.M.C.H., Hyderabad. He conducted post-mortem examination on the dead body of Rehmat Ali. He had produced the post-mortem notes as Exh.7. Ramzan is the Mashir, in whose presence the police had prepared Mashirnama Exh.9 regarding the injuries on the person of Rehmat Ali, P.W.3 Muhammad Younis Khan is the Mashir of inquest report Exh. 11 P.W.4, Talib Hussain was posted as Head Constable at Market P.S. Hyderabad.
He prepared inquest report Exh II and then, handed over the dead body of Rehmat Ali to Medical .Officer for conducting post-mortem examination. P.W.5 Allah Bachaya is the Tapedar, who has produced the sketch of Wardat as Exh.
14. P.W. 6, Abdullah P.W.7 Muhammad Ramzan and P.W.8 Muhammad Ashraf are the eye-witnesses, who have fully supported the prosecution case and have implicated all the three appellants P.W.9 Ali Murad is the Mashir regarding the arrest and recovery of above crime weapons from each of the appellants,but he has not supported the prosecution case. P.W.10, Ghulam Muhammad is the A.S.I., who had recorded the report of the complainant Abdullah in the daily diary. He conducted some investigation as already stated above. P.W. 11 Lal Khan is the 1.0., who arrested the appellants and after completing the investigation, challaned them. P.W.12 Dr. Sital Das was posted as Medical Officer, Civil Hospital Badin. He had examined Rehmat Ali on 27-9-1980, when he was brought alive.
This doctor had produced the certificate regarding the injuries found on the person of Rehmat All as Exh.
31. After examining these witnesses the learned D.P.P. Vide his statement Exh.32 closed the prosecution.
14. The appellants in their statements under section 342. Cr.P.C. Havedenied, that they committed the murder of Rehmat by causing him injuries with a hatchet, Lathi or wooden arm of a cot. They have also denied, that P.Ws. Abdullah, Ramzan and Ashraf had witnessed the incident. Appellant Tufail has denied, that one day prior to the incident he had quarrelled with the deceased over grazing of buffaloes. Appellant lshaq has also denied, that he had threatened the deceased of dire consequences or on this account had murdered him, on the next day at morning time. The appellants have also denied that they had produced the crime weapons before the police and have stated that these weapons have been foisted upon them by the police. As regards witnesses, they have stated, that they are interested and related inter se and have been set up by the prosecution and, therefore, have deposed against them.
15. Appellant lshaq has further stated, that he had taken 3 blocks of land on lease from deceased Rehmat Ali, who owned 41 blocks of land, out of which he had already leased 11 blocks to his son, P.W. Abdullah. Appellant lshaq has further stated that co-accused Tufail is his cousin and working with him on his land. Co-accused Hanif is brother-in-law of appellant Tufail and he is Hari of one Muhammad Hanif son of Khair Muhammad. He has further stated, that P.W. Ashraf was also his Hari. On the day of incident he alongwith appellant Tufail, P.W. Muhammad Ashraf and one Muhammad Hanif were working on the land, from where they returned to their house at 2-00 p.m., when he came to know, that Rehmat Ali had sustained injuries and had been taken to the hospital.
On the next day he was arrested from his house by police. All the appellants have stated, that they are innocent. The appellants have examined three witnesses in their defence, namely, Muhammad Hanif, Muhammad Ashraf and Abdul Latif. After examining these three witnesses, the learned defence counsel vide his statement Exh. 39 closed the defence side.
16. The learned trial Court taking into consideration evidence adduced by the prosecution convicted and sentenced the appellants as hereinabove mentioned, vide its impugned judgment, dated 30-6-1981, for the reasons given in the said judgment. Appellants abovenamed being aggrieved by the said judgment have preferred the above appeal, on the grounds mentioned in the memo, of appeal.
17. The learned Advocate for the appellants in support of above appeal submitted as under:-
(i) That there was delay of 2 hours in lodging of F.I.R. For which no plausible explanation has been given and as such false implication cannot be ruled out.
(ii) There is contradiction in medical evidence and ocular evidence, and as such in F.I.R. 4 injuries have been alleged to have been caused to deceased, whereas according to medical evidence there were six injuries on person of the deceased and as such presence of P.Ws. And the time of incident becomes doubtful. Beside this P.W.7 Muhammad Ramzan P.W. Muhammad Ashraf do not talk about receive of injury by the deceased on his left arm and as such their presence at the time of incident is doubtful on this account also.
(iii) P.W. 6 Abdullah, P.W.7 Ramzan and P.W.8 Ashraf are interested witnesses. 2 of them being close relative of the deceased whereas the case are very close relative of the family and as such no reliance can be placed on their evidence without independent corrobordtion, which is not at all available in present case.
(iv) D.W. 3 Abdul Lath f has established plea of alibi raised by appellants Ishaque and as such no reliance can be placed on the evidence of P.Ws in respect of appellant Hanif.
(v) Recoveries from the appellants have not been relied upon by the trial Court.
18. In support of the above contentions, the learned Advocate for the appellants relied upon 1972 SCUR 578, 1977 P Cr. L J 980, PCr.LJ 448, 1976 P Cr. Li 243 and 1981 P Cr. L 598.
19. The learned Advocate appearing for State on the other hand fully supported the impugned judgment and stated that statement of P.W.6 Abdullah (son of deceased) and P.W.8 Muhammad Ashraf (nephew of the deceased) has been corroborated by statement of P.W.7 Muhammad Ramzan, an independent witness, beside by medical evidence. In view of this, learned Advocate submitted that the learned trial Court has rightly relied upon the evidence of 3 eye-witnesses. He further submitted that the evidence of 3 defence witnesses have been rightly and for cogent reasons rejected by the learned trial Court. In support of his contentions, learned Advocate relied upon PLD 1962 SC 269.
20. I have carefully considered the above submissions made by the learned Advocates before me and I have gone through the statements of P.Ws as well as impugned judgment and various authorities cited by the learned Advocates before me.
21. Time of incident is said to be about 9-00 a.m, whereas F.I.R. Was lodged at about 11-30 a.m. On the same day i,e, 27-9-1980. Since complainant took deceased in Suzuki to police post, it must have taken same time to arrange for such transport and time for reaching police post must have been at least 1/2 hours, in view of the statement of P.W.10 Gul Muhammad A.S.I., as it took him that such time to reach Vardat, from police post. Keeping in view all these facts, in my opinion there was no unreasonable delay in lodging of report, so as to raise any presumption against the prosecution on this account. Hence I see no force in this contention of the learned Advocate for the appellants.
22. The second contention of the learned Advocate for the appellants, that there is contradiction in ocular evidence and medical evidence in respect of actual injuries received by the deceased, also has no force in my opinion, as according to P.W. 12 Dr. Sital Das, who had examined the deceased at Badin, deceased had 4 injuries on his person. However, according to P.W.1 Dr. Muhammad Siddik deceased had in all 6 injuries on his person, out of which 4 were abrasions and as such abrasions received on account of fall by the deceased may have not been noticed by P.W.1 Dr. Sital Das as well as by P.Ws. Beside, these allege contradictions are very minor, the main, injuries received by deceased from the hands of appellants have been fully corroborated by medical evidence of both P.W.12 and P.W.1 and as such, I see no force in this contention of the learned Advocate for the appellants.
23. The third contention of the learned Advocate for the appellants,that all 3 P.Ws, (eye-witnesses) are inter-related and interested witnesses is also misconceived. It is true that P.W.6 Abdullah and P.W.8 Muhammad Ashraf no doubt are closely related to deceased, but P.W.7 Ramzan is independent witness, as no relationship of his with complainants party has been established, even prima facie. Besides evidence of all these three eye-witnesses fully corroborates each other and has not been shaken in their cross-examination. Besides no enmity of the appellants, with these witnesses has been established, even prima facie and as such authorities cited by the learned Advocate for the appellants, in this connection, are not at all applicable to present case, as they are based on different facts.However, authority cited by the learned Advocate for the State, namely PLD 1962 SC 269 is applicable to present case. D.W.1 is related to appellant Hanif. D.W.2's evidence has no bearing on the case at all, whereas D.W.3's evidence does not inspire confidence.Ln my opinion, the learned trial Court has systematically appraised not only the evidence adduced by prosecution, but also by appellants and for cogent reasons believed three eye-witnesses and rejected the evidence of D.Ws. I see no reason to disagree with the conclusions and findings of the learned trial Court. I find no material contradiction in occular and medical evidence. Even after disregarding evidence of P.W.9 All Murad, in respect of arrest and alleged recoveries from the appellants, still evidence of P.W.6 Abdullah and P.W.8 Ashraf, two related eye-witnesses, is fully corroborated by evidene of independent eye-witness P.W.7 Ramzan, whose evidence in my opinion is straightforward and trustworthy and can be relied upon and as such prosecution has established its case beyond reasonable doubt against the appellants for having taken part in the incident, as given in F.I.R. Exh.
28.
24. The only question which requires consideration in this case is, whether prosecution has established common intention between the appellants so as to attract the provisions of section 34, Cr.P.C., for convicting all the appellants under section 302, P.P.C.
25. The only evidence in respect of applicability of section 34. P.P.C. Is, that all appellants came together and then gave injuries to the deceased. However, injury No,1, which is described by D.W.1 Dr. Muhammad Siddik as sufficient to cause death, is attributed to appellant Ishaque. Injuries attributed to appellant Tufail and Hanif are one each by blunt weapon. Appellant Tufail was carrying hatchet,but he did not use the sharp side of it, whereas appellant Hanif was carrying wooden stick, but gave injury to deceased above hips. In the absence of any positive evidence to establish common intention between the appellants for commission of the murder and in the face of above admitted facts about the place and nature of injuries given by each appellant, it would be unsafe to presume applicability of section 34, P.P.C. To the case of appellants. The learned trial Court, without any cogent reasons has given finding, that all appellants intended to commit murder of the deceased and as such I cannot agree with this finding and convict all of them for murder under section 302, P.P.C., read with section 34, P.P.C. In my opinion each one of them is liable for his own act in the incident.
26. In my opinion prosecution by evidence adduced has proved, that appellant No,1 committed murder of deceased, Rehmat Ali. As far as appellants Nos.2 and 3 are concerned in my opinion; they are liable for causing injuries to the deceased under section 323, P.P.C. Only, as all other injuries attributed to appellant Tufail and Hanif are simple injuries, according to medical evidence on record.
27. Therefore, in view of my above conclusions and findings, while dismissing above appeal, as far as appellant Ishaque son of Noor Muhammad Arain is concerned. I maintain his conviction and accused to him, however, I alter the conviction of appellants Tufail son of Abdul Karim Arain and Hanif son of Gulan Muhammad Arain from one under section 302/34, P.P.C. To section 323, P.P.C.
Only and sentence them to the period of imprisonment already under gone by them and direct, that both these appellants, if they are not required in any other case, be released forthwith.
28. I further direct that benefit of section 382-B, Cr.P.C., in respect of period of detention of the appellant Ishaque, as under-trial prisoner be given to him, towards his substantive sentence, in addition to all other remissions to which he may be entitled, in accordance with rules.
29. The above appeal stands dismissed in the terms of above judgment.