Muhammad Haleem, J.--Appellants Ranjho, Misri, Jumo and Allah Bux stand convicted under section 302 read with section 149 and section 148, P. P. C. for the murders of deceased Gahno and Sevo and sentenced to transportation for life on the first count and rigorous imprisonment for one year on the second. Appellant Allah Bux was further convicted under section 379, P. P. C. for the theft of the gun of Mooso and sentenced to one year's rigorous imprisonment. All these sentences were ordered to run concurrently. They were tried and convicted as above by the learned Additional Sessions Judge, Nawabshah vide judgment dated 31st January 1968. They have appealed against their conviction.
2. The prosecution case is that Ramzan, deceased Gahno Makoro and Photo were being prosecuted for committing the murder of Murad, brother of appellant Jumo. Out of them Ramzan, Gahno and Makoro were released on bail while Photo was still in jail. On 10th January 1967 Mooso, Ramzan and the two deceased left for Nawabshah to attend the hearing of the case before the Civil Judge and First Class Magistrate, Nawabshah and after attending the hearing on 11th January 1967 they got down at Railway Station Dour and while proceeding on the track leading from Dour to Kazi Ahmad, they were attacked by these appellants and three unknown persons, out of whom Ranjho and Misri were armed with .12 bore guns while Jumo and Allah Bux had rifles, and the three unknown persons had hatchets. They fired their guns at deceased Sevo and thereafter on deceased Gahnu and the unknown persons gave hatchet blows to Sevo. On the gun reports Pario was attracted to the place of incident and he saw the appellant and the unknown persons effecting their escape. Haji Khoso, who resided about 300 yards away also arrived there and the witnesses then gave to him the names of the assailants. It was alleged that these murders were committed to avenge the murder of Murad who was closely related to the appellants. Mooso then proceeded to Police Station Taluka Nawabshah which is 18 miles away from the place of incident and lodged the report, which was recorded by Kadir Bux S. H. O. on 12th January 1967 at noon.
3. After recording the report Kadir Bux repaired to the place of incident and from there secured four crime empties of 12 bore, one rifle cartridge and the blood-stained earth. He sent the two dead bodies for post-mortem examination to the District Headquarter Hospital, Nawabshah and recorded the statements of the witnesses. Appellant Ranjho was arrested on 19th January 1967 and his licensed gun was secured from him. On the same day appellant Misri was arrested and his licensed gun was secured under the same mashirnamas Jumo was also arrested on the same day and Allah Bux on 31st January 1967. The crime empties and the two guns were sent to the forensic laboratory for matching and according to the testimony of Muhammad Zafar, the ballistic expert, three of the crime empties matched with the licensed gun of Misri.
4. The autopsy on the dead bodies was performed by Dr. Anwardin. On deceased Gahno he noticed five gunshot injuries multiple fracture of the skull and rupture of intestines. In his opinion they were gunshot injuries and death was due to them. On Sevo he noticed four gunshot and five incise injuries and in his opinion death was caused due to haemorrhage as a result of the multiple injuries caused by gunshot and hatchet.
5. The appellants in their defence alleged she same enmity against the prosecution witnesses arising from the murder of Murad. They also alleged that Mooso had prosecuted Murad for robbery as he was mixed up with dacoits. Mooso had also enmity with Karim, their cousin and lastly they stated that Mst. Mana, wife of Kehar, their cousin, made to appear before a Magistrate, before whom she gave her statement, by Mooso and others. They denied the prosecution case and alleged false implication because of enmity.
6. The prosecution examined Mooso, Ramzan and Piaro to support its case. Mooso and Ramzan were eye-witnesses while Piaro had seen the appellants and the three unknown persons running away. Mooso is the uncle of the two deceased while Ramzan is the brother of deceased Sevo. Piaro is the distinct cousin of Mooso as well as his brother-in-law. All these witnesses resided in the same village.
7. We have closely scrutinised the ocular testimony of Mooso and Ramzan. It is not possible to doubt the presence of Ramzan with the two deceased at the time of the occurrence as it has been established that they were returning from Nawabshah after attending the Court proceedings.
Deceased Gahno and Ramzan were accused in that case and Sevo and Mooso had accompanied th-vm, and the defence has not been able to bring out anything in the cross-examination of Ramzan and Mooso to discount their presence together. Piaro was on his way to his village when he heard the gun report and on his arrival at the place of incident saw the appellants and the three unknown persons effecting their escape. The village where Piaro, Mooso and Ramzan resided was less than half a mile away but a little more than a call's distance. The presence of Piaro at that juncture also has not been rendered doubtful and we see no reason why we should disbelieve him when he has given a reason for being present near the place of incident from where he had come on hearing the gun reports. Undoubtedly there is enmity between the parties and both the prosecution as well as the defence have attributed it as one resulting from the murder of Murad. In the circumstances, the witnesses being closely related and interested their evidence would require close scrutiny in the context of the circumstances disclosed by them before they can be believed with regard to the participation of each of the four assailants.
8. As for the incise injuries they are ascribed to three unknown persons and they are not before us.
The gun shot injuries are ascribed to all the four appellants out of whom Misri and Ranjho were armed with 'l2 bore guns while Jumo and Allah Bux with rifles. No bullet injury was found on the dead bodies of either of the two deceased. They had gun-shot injuries which can be attributed to appellants Ranjho and Misri. Out of them, the gun of Misri only matched with three of the crime empties secured from the place of incident. The licensed gun of Ranjho though sent to the ballistic expert was thus not proved to be the crime weapon. It is equally possible for one man to cause with one weapon the same number of gunshot injuries on the two deceased. As for the participation of Jumo and Allah Bux, only one rifle cartridge was secured from the place of incident but there is no evidence to show that any one of them had used his rifle as there is no bullet injury on either of the two and deceased. There is, therefore, assurance of the participation of appellant Misrinalone and to this extent the prosecution has been able to establish the identity of one of the assailants of the two deceased.
9. Mashir Haji Khoso has not supported the securing of four crime empties from the place of incident. In his evidence he has also not supported the prosecution witnesses on the point that they had given to him the names of the assailants. He was confronted with his 164 statement and relevant mashirnama. His explanation is that he was coerced to give his thumb-impression on the mashirnama relating to the securing of the crime empties, and he gave his 164 statement because he was detained in police custody for 4 days. A scrutiny of his evidence shows that he is an unreliable witness and has compromised his integrity. We would not accordingly place any reliance on him. The factum of the recovery of the crime empties is duly established by the testimony of the Investigating Officer against whom no bias is established on record. Moreover, they were secured on 12th January 1967 and the licensed gun of Misri was seized on 19th January 1967. There is nothing to show that during this interval or after the securing of the guns anything was done to get these crime empties manipulated. Even otherwise one out of these crime empties had not matched with the licensed guns of either Misri or Ranjho and if there had been any manipulation afterwards then one or more of the crime empties would have equally matched with the gun of Ranjho. There is thus no reason for us to discard this evidence even though there was delay in sending the crime empties and the guns for matching.
10. In the result, the prosecution has established its case against appellant Misri. We would accordingly uphold his conviction and the sentence imposed therefor. The other three, namely Ranjho Jumo and Allah Bux are entitled to the benefit of doubt and they are accordingly acquitted.
The appeal of appellant Misri is dismissed while that of the three appellants is allowed. They shall be set at liberty forthwith unless required in some other case. .
Mohammad Ayub, on lst July 1965 and 8th June 1966, under sale agreement receipt Exhs, 1/A, 1/B and Exhs. 1/C, 1/D respectively. According to the applicant he entrusted the vehicles to one Waheed Mistry P. W. 2 on certain terms and conditions, and then on the same terms and conditions to the respondent Fayyaz Hussain, above eight months before December 1967 when he filed complaint against him. The applicant asserted that the respondent misappropriated the income of the Rickshaws, and had refused to settle accounts.
2. The respondent in defence stated that he purchased the Rickshaw from applicant's son Mohammad Ayub and the transfer documents were also duly executed by him. In this connection, he produced sale agreement and Receipts dated 13th May 1967, Exhs. 1/F to 1/1.
3. In support of his case apart from himself, the applicant examined two witnesses, his son Mohammad Ayub and Abdul Waheed Mistry.
4. The respondent also examined two witnesses in defence and in support of the assertion that he had purchased the rickshaws from Mohammed Ayub. D. W. 1 was Mr. Ikramullah, advocate who stated that the respondent being his client had approached him in connection with the purchase of the two rickshaws and he was accompanied by the seller Mohammad Ayub and one other person. According to him he verified the title of the seller by going through the paper and then prepared two agreements one for each rickshaws as well as the receipts for the amounts. He further said that the custody of the Rickshaws was handed over to his client and the documents were also executed.
5. The second witness was Abdul Majeed who was the attesting witness of the documents produced by the respondent. He supported the case of the respondent in all respects.
6. The learned Additional City Magistrate, Court No. IV, Karachi held that the respondent found guilty under section 406, P. P. C. and sentenced him to nine months' R. L and to pay fine of Rs. 1,000, in default to undergo' R. I. for three months more. On appeal, the learned Sessions Judge, Karachi, reversed the findings, and not only set aside the convictions and the sentences but directed the applicant to pay the respondent Rs. 600 per month per Rickshaw from the day the vehicles were handed over to him by the Court.
7. It is in these circumstances that the applicant has approached this Court through these Revision Applications.
8. The case of the applicant as well as of the respondent as would be seen from above, was that both the Rickshaws belonged to Mohammad Ayub. Each claimed to be purchaser from him.
Applicant relied upon Exhs. 1/A, 1/B, 1/C, 1/D, and respondent on Exhs. 1/F to 1/1. This is what the learned Sessions Judgf observed in connection with applicant's documents:-- "Now, these documents bear the signatures of Mohamma Ayub and one witness whose name is not legible. The compla nant did not examine that witness and in my opinion, t deposition of P. W. Ayub who is his own son cannot prove the transaction beyond doubt. It is pertinent to note that the Oath Commisioner who is alleged to have attested these documents was also not examined."
In respect of the respondent's documents the learned Sessions Judge observed:-- "P. W. Ayub admitted in the lower Court that he executed documents Exhs. 1/F, 1/G, 1/H, and 1/L Exh.
1/F, is the sale agreement dated 13-5-1967 in respect of rickshaw No. KAU 581 and defence witness Abdul Majid figures as a witness there, Exh. 1/G is the receipt of the price, there also P. W. Abdul Majid figures as a witness. Exh. 1/H is the sale agreement in respect of other Rickshaw No. KAY 915. It is also dated 13-5-1967 and D. W. Abdul Majid figures as a witness there. Similarly Exh. 1/1 is the receipt for the price of other Rickshaw No. KAU 915. Here also defence witness Abdul Majid figures as a witness. In the face of admission by P. W. Ayub it was not necessary for the appellant to have examined witness Abdul Majid but he examined Abdul Majid and he proved all these documents. In addition he examined Mr. Ikramullah who also supported him. Thus it was proved beyond doubt that prosecution witness P. W. Ayub son of respondent Rasul Bux sold these rickshaws on 13-5-1967 to the appellant. In addition to the four documents mentioned above, there are documents Exh. 1/J letter of Ayub to the Excise and Taxation Officer and Motor Registration, Karachi. Exh. 1/K statement of P. W. Ayub on stamp of Rs. 4.00 to the effect that he had transferred these vehicles in favour of the appellant. Exh. 1/L letter from P. W. Ayub to the Secretary, R. T. A., Karachi requesting him to transfer the route permit in the name of the appellant. P. W. Ayub admitted in the lower Court that these documents Exhs. 1/J and 1/K, 1/L bore his signatures. It is thus clear that after 12-5-1967 Fayaz was in possession of these two rickshaws and a transferee from P. W, Ayub. I may point out that there is no evidence on record to show that on this day i.e., 13-5-1967 none of these rickshaws was registered in the name of the complainant. P. W. Ayub admits every thing about this transaction but alleges that appellant had noticed him to execute all these documents. This witness has cleared first year Science examination from D. J. Science College, Karachi and is aged 27 years. I will not accept this allegation. Then complainant Rasul Bux came to know that the transfer of these two rickshaws in favour of the appellant. His statement on this point is as follows:-- *1 came to know that Mohammad Ayub had sold my rickshaws to accused. I then enquired from him as to how he had sold my rickshaws to the accused'."
9. These are very legitimate findings, and I see no justifiction f or interference in the exercise of the revisional jurisdiction of this Court.
10. The only aspect of the case that, however, requires consideration is that the direction issued by the learned Sessions Judge to the applicant to pay sura of Rs. 600 for each rickshaws, per month, from the day the vehicles were handed over to him by the Court. In order to appreciate the contention raised in this regard, the relevant portion of the order passed by the learned Sessions Judge is reproduced hereunder:-- "The two rickshaws have remained in the possession of the complainant from 12-12-1967. The complainant was to deposit daily income in the Nazarat. Mr. Iftikhar tells me that the complainant did not do so on the plea that the rickshaws did not run but the order of the learned Magistrate shows that he had to keep these rickshaws in running condition. He was, therefore, bound to deposit daily earnings in the Nazarat. In his complaint he stated that one rickshaw brought an average income of Rs. 600.00 per month. I, therefore, direct that the complainant should deposit the amount calculated at Rs. 600.00 per month per rickshaw from 12-12-1967 till hands over these rickshaws back to the Court. The two rickshaws shall be returned to the appellant in running condition. This order I pass in exercise of powers contained in section 520, Cr. P.C.".
II. It may be said that the learned Sessions Judge fixed the amount of Rs. 600.00 per month per Rickshaw per month on the basis of an earlier order passed by the learned Additional City Magistrate during the trial of the case. This order reads as follows:-- "Heard Messrs Abdul Baqi Molvi, Advocate and Nooruddin Ramzan Advocate. At this stage it is premature to go Into the question whether there was a dishonest intention to misappropriate the property on the part of the accused, let the rickshaws be entrusted to the complainant under section 516-A, Cr. P. C. on the condition that he will deposit the daily income thereof at the Nazareth and he will produce the said rickshaws before the Court on every date of hearing, in a running condition till the decision of the Court. This matter will be treated as urgent and will be disposed of as early as possible. All papers of rickshaws shall be handed to the complainant."
It would be seen that the applicant was required to deposit in Court the daily income of the rickshaws and also to keep the vehicles in running condition. l2. According to the learned counsel for the applicant, it was stated even during the trial of the case itself that the applicant was no longer running the Rickshaw and hence the question of depositing of the earnings did not arise. This appears, to be a correct position but unfortunately the case proceeded for one year further without determining this question at all. Moreover, if the learned Sessions Judge was of the opinion that the respondent was entitled to the income from the rickshaws, then this was a matter which ought to have been gone into further, by directing the parties to produce evidence in respect of their respective allegations. This was not done. It is not stated that civil proceedings are pending between the parties in respect of the dispute. In any case, the amount of income of each rickshaw at Rs. 600.00 per month having been determined without any basis on record, it is difficult to sustain the order passed by the learned Sessions Judge in this regard.
13. For these reasons, I allow Criminal Revision Application No. 143 of 1969 and set aside the order of the learned Sessions Judge so far it directs the applicant to deposit sum of Rs. 600.00 per month per rickshaw from 12-12-1967. The Revision Application No. 51 of 1969 is, however, dismissed. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.