Muhammad Haleem, J.--This appeal has been filed by the State against the acquittal of respondents Muhammad Hassan (25), Ismail (35), Ali Bux (30), Allahditto (28), Yaqub (25) and Sobdar (30) of the offences under sections 148 and 302/307/342 read with section 149, P. P. C. and also against the acquittal of respondents Ali Bux and Allahditto of the charge under section 13(d) of the Arms Act. They were tried on the said charges for committing the murders of Mitho (25) and his brother Bachal (35) attempted murder of Mst. Zenab (65), their mother, and wrongful confinement of Sain Bux by the learned Additional Sessions Judge, Nawabshah and all of them were acquitted vide his judgment dated 31st January 1969.
2. The incident occurred at 1 p.m. on 16th July 1967, near the otalc of respondent Muhammad Hasan situate in Deh Visar, Taluka Naushahro Feroze and the report (Exh. 9) was lodged by Amir Bux (P. W.
3) at Police Outpost Darya Khan Mari, which was recorded by Muhammad Yousuf A. S. I. (P. W. 12) at 6-45 p.m. the same day. A copy of the report was sent to the Police Station Padidan where it was transcribed in the section 154, (Cr. P. C.) book at 9 a.m. the next day by Muhammad Nawaz, Head Constable. This police station is about 13 miles away from the place of incident. The contents of the report in the words of Amir Bux are as under :-- "Bachal, Mitho, Najamdin, Sachal, Qamaruddin and Ghulam Hyder are real brothers and are my nephews and are living adjacent to me in separate houses. During the last election, Haji Muhammad Hasan's nephew was murdered in which Najmud- din, Bachal and Sachal were challaned in the case. But subsequently they were acquitted in that case about a year prior to the incident. Therefore, both the parties were not on good terms and were not visiting to each other.
Muhammad Hassan and Bachal are related inter se. On the last night our murshid Ahmed Shah and nekmards Din Muhammad, Haji Rasool Bux and others settled the differences between the parties on Holy Quran and made them brothers. Therefore, today my brother's wife Mst. Zenab, her sons Bachal and Mithal and her cousin Sain Bux and Mst. Khairan, wife of Bachal, Rahmat aged about 3 years daughter of Bachal, Nek Muhammad aged about 6 years son of Bachal, Shahzadi aged about 4 years daughter of Sain Bux went to the house of Muhammad Hassan in the morning to offer condolence on- the death of Mewo. Today at about 2 p.m. while I was sitting in my house Mst. Zenab mother of Bachal, her daughter-in-law Mst. Khairan, Nek Muhammad and Rehmat son and daughter of Bachal came to me raising cries. On enquiry Mst. Zenab said "At about Katheri Manjhid time, I, my daughter-in-law Mst. Khairan, my sons Bachal Mitho, Bachal's son Nek Muhammad, his daughter Rehmat and my cousin Sain Bux and his daughter Shahzadi went to the house of Muhammad Hassan. At about 11 a.m. we reached there. Muhammad Hassan was sitting in his otak adjacent to his house. We i.e. T, my daughter-in-law and small children went towards the house while Bachal, Mitho and Sain Bux remained in the otak of Muhammad Hassan. At about 1 p.m. the meals were ready and supplied to us in the house. While the lunch of Bachal, Mitho and Sain Bux was taken by Yakub and Allah- ditto to their otak, and shortly thereafter there was a gun shot report and some more outside the house towards the otak. I came outside the house of Muhammad Hasan and found Muhammad Hasan armed with a gun and Sobdar armed with a hatchet. Allahditto with a revolver, Ismail with a gun and Ali Bux with a pistol. Ismail fired a gun report at my son Bachal which struck him in his arm and he ran towards South. Ismail and Ali Bux ran after him and reached him at some distance from the otak. Ismail fired at him with a gun and fell him down. Allahditto fired revolver shot at Mitho and Muhammad Hassan gave him blows with butt end of the gun and the butt end was broken. Mitho tried to run away from the landhi but Muhammad Hassan, Sobdar and Allahditto felled him down in front of the landhi and Sobdar gave him various injuries on his face and other parts of the body and killed him. I intervened to rescue Mitho but Sobdar gave me blows with backside of the hatchet. Then I, my daughter-in- law and young children ran from there raising cries and found wrongfully confined therein Sain Bux by the accused". On hearing this, I, Najmuddin, the brother of deceased came to the place of occurrence and found Bachal lying dead about a furlong away towards the South from the otak and had gun ' shot injuries on his head and arm and in front of the landhi of the otak. Mitho was also lying murdered in the pool of blood while Sain Bux was found tied on his feet, legs, arms and neck with a turban in front of the landhi. On enquiry he narrated the same story as narrated by Mst. Zenab.
There was lying a box near the dead body of Mitho. Sobdar further said that during the firing these accused have deliberately injured him (Sobdar). We then untied Sain Bux. Leaving Sain Bux and Najamdin at the dead bodies I have come for report. Sain Bux has also further told that the accused at the suggestion of Muhammad Khan Wagan had kept the boxes near the dead bodies which were brought by the accused there after the murder."
3. After recording the report Muhammad Yousuf A. S. I. repaired to the place of incident and reached there at 9-30 p.m.
He recorded the statement of Mst. Zenab and prepared a mashir- mma of the injuries on her person in the presence of Mashirs, Din Muhammad and Buxan and sent her to Padidan Dispensary for examination and treatment. He next examined Sain Bux who produced a turban with which he was tied and this turban was secured under Mashimama (Exh. 31) in the presence of Mashirs Miral Khan and Din Muhammad. He kept a guard over the dead bodies for the night and soon after handed over the investigation of the case to Amanullah S. H. O. (P. W. 13) who had arrived there on recieving the information from the outpost about the murders. The next day Amanullah S. H. O. inspected the place of incident in the presence of Mashirs Din Muhammad and Ali Nawaz and observed not only marks of blood on the walls of the otak but leading from there to the place where the dead bodies lay and also on the ground ; one crime empty (.12 bore) was lying in the otak and another crime empty was found near the dead body of Mithal. The dead body of Bachal lay about 300 paces away to the south of the otak and he also observed a trail of blood leading from the otak to the place where his dead body lay ; three empty cartridges were found near the dead body of Bachal. One trunk, each containing old clothes was also found near the dead bodies of the two deceased. The above articles were secured under Mashirnama (Exh. 32) in the presence of Mashirs Din Muhammad and Ali Nawaz. The crime empties were sealed while the blood-stained earth was sealed in a separate parcel. The dead bodies were sent for post-mortem examination to Naushahro Feroze Dispensary. He then arrested respondents Ismail, Allah Ditto, Ali Bux and Sobdar in the presence of Mashirs Din Muhammad and Miral as per Mashirnama (Exh. 35). Respondent Ismail volunteered to produce a gun and led the Investigating Officer and the same mashirs to a room of his house, from where he produced the licensed single-barrel gun of his father, Gul Hassan, 16 cartridges and one empty cartridge which were secured under Mashirnama (Exh. 36), and sealed. Respondent Allahditto volunteered to produce the incriminating articles and led the Investigating Officer and the mashirs to his house and from under a gunny bag lying there he produced a revolver (.32 bore) two misfired cartridges, two empty cases, and one blood stained shirt. These articles were secured under a Mashirnama (Exh. 37) and sealed separately.
Respondent Sobdar then led the Investigating Officer and the mashirs to his house and from under his cot produced a blood-stained hatchet which was secured under Mashirnama (Exh. 38) and sealed. Respondent Ali Bux volunteered to produce a pistol (.12 bore) and led the Investigating Officer and the mashirs to his house and from inside a 'Val/ti" he took out a country-made pistol which contained a misfired cartridge and it was secured under Mashirnama (Exh. 39). The pistol and the misfired cartridge were sealed. Respondent Allahditto again volunteered to produce the clothes and other articles of Mst. Zenab, Mst. Khairan and her children and led the Investigating Officer and the mashirs to his house from where he produced two Ajraks, one old white burqua, one old shalwar, one little blue shirt of a child, two pairs of lady's chappals and one pair of baby's shoes, which were secured under Mashirnama (Exh. 40). Muhammad Yousuf (P. W. 12) the same day went in search of respondent Mohammed Hasan towards the sand dunes about 3-4 furlongs away from the village and from there arrested him in the presence of Mashirs Murad Ali and Muhammad Yaqoob. He was then wearing a blood-stained shirt and shalwar which were seized from his person as per Mashirnama (Exh. 20). He produced respondent Muhammad Hasan and the articles before Amanullah S. H. O. Muhammad Hassan then offered to produce a gun and led the Investigating Officer and the Mashirs Din Muhammad and Miral, to his house, from where he produced the gun (.12 bore) which contained one crime empty in its chamber and .12 cartridges, which were secured under a Mashirnama (Exh. 41). The gun and the crime empty were sealed. The blood-stained earth secured from the places where the dead bodies lay, the hatchet produced at the instance of respondent Sobdar, the white shirt of respondent Allahditto and the shirt and shalwar of respondent Muhammad Hassan were sent for chemical analysis and according to the report (Exh.
45) of the chemical analyser all these articles were stained with human blood. The guns and the revolver secured at the instance of respondents Ismail, Muhammad Hasan Allahditto, five crime empties secured from the place of incident and one of the two crime empties produced by respondents Ismail and Muhammad Hasan were sent for matching to the forensic laboratory and according to the testimony of Ballistic Expert, Muhammad Sarwar (P. W. 5) two crime empties marked C/3 and C/6 matched with the gun pro - duced by respondent Muhammad Hassan. With regard to the i other crime empties the opinion was in the negative. Respondent Yacoob was arrested on 20th July 1967, and he produced two straw covers, one 'chowry', one glass and one bowl of aluminium which were secured under Mashirnama (Exh. 42).
4. Dr. Mutalib Husain performed autopsy on the dead bodies of Mitho and Bachal. On the dead body of Mitho he observed the following injuries "(1) An incised wound on right side lower part-of cheek measuring 4' x 3' x 2" cutting underlying bone (mendible).
(2) A gun shot wound on the upper limb left side measuring Y in diameter skin deep circular in shape black maring.
(3) An incised wound on left side on root of left thumb measuring 2'xl'x
(4) An incised wound on right scapular region measuring 5' x 2" x 3" cutting underlying bone.
(5) An incised wound on left parietal bone measuring 5' x 1" x 1 cutting underlying bone.
(6) An incised wound on right shoulders measuring 2" x x and in his opinion except injury No. 2 which was caused by the discharge of a firearm, all other injuries were caused by a sharp cutting weapon and death was instantaneous. According to him, injuries Nos. 1, 4 and 5 were individually sufficient to cause death in the ordinary course of nature.
On deceased Bachal he noticed the following injuries :-- "(1) A gunshot entrance wound in front of right elbow-joint 2" length 1" breadth deep to exitude with black margin causing fracture of bone.
(2) A gunshot exit wound on the backside of right elbow- joint 4' x 3" deep to entrance wound.
(3) A gunshot entrance wound on right eye 1" in diameter deep to exit wound.
(4) A gunshot exit wound on the right side of occipital bone. 1" in diameter deep to entrance wound.
(5) A gunshot exit wound below right eye 1" in diametter deep 3".
(6) 2 gunshot wounds on left and right side of mouth 1" in diameter 3" deep each." and in his opinion all the injuries were caused by the discharge of a firearm like a gun and death was instantaneous. Injuries 1, 3, 5 and 6 were, according to him, individually and collectively sufficient to cause death in the ordinary course of nature. One bullet was also recovered from the dead body of deceased Bachal.
5. Respondent Sobdar was sent for medical examination to the same doctor on 18th July 1967, who noticed the following injuries on him :-- "(1) A gun shot entrance wound on the lower part of back above the left glutial region 4' in diameter circular in shape with black margining 2Y deep."
The figure 4" occurring after the word 'region' and before the words "in diameter" is a mistake for the actual figure Y vide medico-legal certificate (Exh. 15). In the opinion of the doctor this injury was caused by the discharge of a firearm and grievous in nature.
6. Dr. Fazul Haq examined Mst. Zenab on 18th July 1967, and noticed the following injuries on her person :-- "(1) A contusion 1* x Y on the left costal margin of the 10th rib.
(2) A contusion 1" x on the back upper side." and in his opinion, injury No. 1 was grievous while No. 2 was simple and that they were caused by "some blunt substance."
7. In defence, the appellants denied the prosecution case and proclaimed their innocence. In the committal Court respon dent Muhammad Hassan admitted having produced the licensed gun but denied the recovery of the clothes from his person. He further alleged that respondent Sobdar received the gunshot injury at the hands of Sain Bux, Najamdin and others and attributed his implication in the crime at the instance of the prosecution witnesses because of the counter-case against them. In reply to the question whether he had to say anything else, he stated :-- "No. They had come to take away the girl of Mewo by force. I will give my further statement in the Court of Session."
In the trial Court he disclosed his defence as under :-- "After Mewo's death Sachal and his brothers wanted Mewo's wife and children to stay with them and I refused to do so. They threatened to forcibly take them away. On the day of incident both deceased Najamdin along with Sainbux and Sachal came armed with guns and pistol to my otak and demanded the girls and on refusal they went to my house where I, Sobdar and others followed.
They attacked us with guns. Sobdar my brother also received bullet injury at their hands."
He again emphasised that he was innocent and a witness in the counter-case against the prosecution witnesses. In the committal Court respondent Sobdar denied the production of the hatchet and alleged his implication in the crime at the instance of the prosecution witnesses because of the counter-case against them. He took the same stand as respondent Mohamed Hassan that the prosecution witnesses had come to take away the 'girls' of Mewo by force. In the trial Court he explained his injury by saying that he had received it at the hands of the deceased party when they had attacked him and others and adopted the defence of Muhammad Hassan. In the committal Court respon dent Alibux denied having produced the pistol and adopted the defence of Muhammad Hasan. In the trial Court he alleged that he was a witness in the counter case and denied having partici pated in the fight. In the committal Court respondent Allahditto denied the production of the clothes belonging to Mst.
Zenab and others and also the revolver and adopted the defence of Muhammad Hassan. In the trial Court he alleged that he was not present when the fight took place and that he was implicated because his relations were witnesses in the counter-case. In the committal Court respondent Yaqoob alleged that respondent Sobdar received the gunshot injury at the hands ofSainbux, Najmuddin and others and adopted the defence of Muhammad Hassan. In the trial Court he alleged that he was falsely implicat ed due to enmity. In the committal Court respondent Ismail denied the production of the gun and adopted the defence of Muhammad Hassan. In the trial Court, he alleged that Bajhi was murdered and that his father, Gul Hasan, acted as a mashir in that case against the deceased and his brothers and that is why he was implicated in the crime.
7-A. Deceased Bachal and Mitho were real brothers and sons of Nek Muhammad (senior) while Mst. Zenab is their mother. Amirbux is the brother of the two deceased and uncle of Najam- din, Sachal, Kamardin and Ghulam Hyder, who are brothers inter se. Mst. Khairan is the widow of deceased Bachal while Nek Muhammad is their son. Sainbux is the maternal uncle of deceased Bachal and his sister is married to respondent Muhammad Hassan. Din Muhammad is the uncle of the two deceased while Mst. Sahib Khatoon is their sister, who is the widow of Mewo, brother of respondent Muhammad Hassan. She had one son and three daughters, one of whom is married to respondent Allahditto and the other to the son of Suleman, a relative of the respondent.
Respondent Muhammed Hasan and Sobdar are brothers inter se while the other respondents are related to them. Bajhi, upon whose murder it is said that the two deceased were implicated, was married to one of Mst. Zenab's daughters, named Mst. Moran, while respondent Sobdar is the uterine brother of her husband. It is thus clear that the respon dents, the two deceased and the witnesses are all related to each other. The respondents resided about a mile and a half away from the village of the deceased.
8. The two deceased were on visiting terms with the respon dents prior to the murder of Bajhi, nephew of Muhammad Hassan. He was killed about 4-5 years before the present incident and deceased Bachal, Najamdin and Sachal were tried for his murder but were acquitted a year back. The relations between the deceased and the respondents after the murder of Bajhi had become strained. Mewo, the brother-in-law of the two deceased died three months before the present incident and because of their strained relations neither they nor their family members had gone to condole his death. Efforts were made for reconciliation earlier by Bachal, Mewo before his demise and Allahbux and they had approached their Murshid, Ahmed Shah in this behalf and it was on the night preceding the murder that a 'faisla' was effected on Holy Koran through the intervention of their Murshid, in the village of Dur Mohomed about 1 acre away from the village of the deceased. It was agreed that Bachal would give one of his two daughters to respondent Muhammad Hassan and the other to Allahbux, brother of respondent Alibux, for being married to some one in their families. Having settled their differences the two deceased, Sain Bux, Nek Muhammad son of deceased Bachal, Mst. Zenab, Mst.
Khairan and her children went to the house of respondent Muhammad Hassan, the next day as a gesture of goodwill to condole the death of Mewo. What happened there is narrated in the report (Exh. 9).
9-A. The direct evidence in the case was furnished by the testimony of four witnesses, namely Mst.
Zenab, Mst. Khairan, Mst. Sahib Khatoon and Sainbux. The trial Court however rejected their testimony. While appraising their evidence it held that they were members of the same family and "thickly related inter se". With this background in view it held that "the ocular evidence itself is of doubtful and improbable nature". In this context while dealing with the evidence of Mst. Zenab, the trial Court reached the conclusion that the injuries on her person were "subsequently manipulated to establish her presence at the vardat as eye-witness and to give it a real look." Reliance for this view was placed on the opinion of the doctor as to the age of the injuries, namely that they were received within 24 hours. She was examined on 18th July 1967, and though the time of examina tion is not mentioned in his testimony yet it is so stated in the medico-legal certificate (Exh. 46) as at 5- 30 p.m. This time, according to the trial Court was beyond 24 hours as the incident took place at about 2 p.m. though the time given in the F. I. R. was 1 p.m. The doctor also did not say anything about the age of the injuries in his examination-in-chief but in reply to the question in his cross- examination, he stated that they were received within 24 hours. How was he able to pinpoint the age of the injuries as "within 24 hours" is not clear as no date is available either in his certificate or in his testimony for estimat ing the age of the injuries. The columns in the certificate are filled in by a copying pencil and the signature is only in ink. However, in the column "probable duration of injuries" the following words "within 24 ho" are written in a different ink. In the printed record this column is blank. Neither the State counsel nor the defence counsel brought this fact to our notice at the time of hearing of this appeal and it was while writing the judgment that this variation was discovered. We accordingly issued notice and heard the learned counsel for the parties with a view to get a clarification. They were unable to enlighten us in this respect. If the words in ink in the original certificate were thereat the time the record was sent for printing there was no reason why it should have been left blank; we are doubtful whether the words "with 24 ho", an inaccurate expression, were also written by the doctor at the time of signing the medico-legal certificate and under the circumstances there is a probability that these words were added surreptitiously. In the absence of the date in the certificate the opinion of the doctor as to the age of the injuries appears to us rather a guess. Moreover, the age of an injury cannot be ascertained with any certainty and the error of a few hours is possible either way. In his book on Medical Juris prudence and Toxicology, 13th Edition, J. P. Modi, the learned author, at page 235, has thus stated :-- "It is not easy to give the exact time of infliction of any injury, but an approximate time can be given from the data given below. Hence it is always necessary to mention 'about' when giving the period of an injury."
For the above reasons, the trial Court could not have relied with certainty on the age of the injuries with a view to brush aside the testimony of Mst. Zenab upon the ground that the injuries were manipulated subsequently. In this context neither can it be said that her version is falsified by the medical evidence nor can the supporting evidence of Mst. Khairan, Sain Bux and Din Mohd. be rejected on the ground that it stood in conflict with the medical evidence and they had deposed merely to support the case of Mst. Zenab as they were all interested witnesses. Mst. Zenab had sustained one grievous and one simple injury and was admitted to the hospital on 18th July 1967, and remained there as an indoor patient till 24th July 1967, and left against medical advice. It is inconceivable to hold that these injuries could have either been self-suffered or self-inflicted with a view merely to support a false stand. Under the circumstances we are constrained to hold that the very basis for reaching the conclusion that her evidence was "of doubtful and improbable in nature" is without any reasonable foundation. There is also no material on record to indicate that she had any thing to do with the murder of deceased Bajhi and under the circumstances it is not possible that Mst. Zenab, an old lady of 65 years, would go to the extent of lending herself as a witness and to suffer the injuries merely to support a false version. In para. 26 of the judgment, the learned trial Court refers to an effort made to introduce the lady witnesses to make it appear that the object of the visit of the deceased and Sain Bux was not to abduct forcibly the minor children of Mewo but to condole Mewo's death. This finding is apparently based on the conclusion reached by the trial Court that there was no Taisia' as alleged by the prosecution witnesses the previous evening. Not only the prosecution witnesses but Din Muhammad has also testified about the "faisla" having been reached between the parties. His evidence on this aspect of the case has been brushed aside on the ground as under :-- "His word is not entitled to any credit as he is interested person and near relative of the deceased.
He is treated as mashir too and in all the mashimamas he is shown as mashir and examined as such although another Mashir, Miral Khan, of different caste was available and could have been examined."
Din Muhammad has stated in his cross-examination that he is a Nekmard of both the parties and related to them. No bias has come out in his evidence against any of the respondents and all that has been shown is that Pirbux his brother, had stood surety for Sachal and others in the counter- case in the Courts, even this was after the incident and if Pir Bux had stood surety this circumstance alone cannot be taken against the witness to impute any biasyagainst the respondents. His evidence has not been shaken on the point as to the reaching of the Taisia' the previous evening and there is, therefore, no reason to discard his evidence merely on the ground that he was related to the prosecution witnesses. The other reason for discarding the evidence of 'faisla' is that Pir Ahmed Shah and Rasool Bux have not been examined to support it. Only Rasool Bux was examined in the course of investigation, but he is. also not cited as a witness in the charge-sheet. Pir Ahmed Shah was not even examined in the course of investigation. These two persons were not witnesses in the case and their non-examination cannot be looked at with suspicion and no adverse inference can also be drawn. It was open to the defence to examine them with a view to shake this part of the prosecution case ; not having done so there was only the prosecution version with regard to it and in the absence of any material on record to cast doubt there was no reason for the trial Court to discard the evidence of Din Muhammad and the other prosecution witnesses on this aspect of the case. The trial Court also looked with doubt the place where it was alleged that "faisla" had taken place and described the stand of the prosecution with regard to it as 'absurd'. The reasoning of the trial Court is as to why people should gather in a stranger's otak, namely that of Dur Muhammad and even if that was so why was Dur Muhammad not examined. It is clear from the evidence on record that the relations between the parties were strained and they were not on visiting terms and in this context a neutral venue was chosen so that the representatives of both the parties could assemble there. We are unable to see how this could be an absur d stand in the context of the strained relations between the parties. Dur Muhammad was not examined in the course of investigation and was not cited as a witnesses and the trial Court under the circumstances was not justified in drawing an adverse inference from his non- examination and if at all there was a doubt as to the place where it was alleged that the parties had assembled, it was open for the defence to examine him and disprove the prosecution allegations or he could be examined as a Court witness under section 540-A, Cr. P. C. There is, however, no material on record to challenge the assertion of the witnesses as to the place where the parties had assembled and under the circumstances it is not possible to view this circumstance with suspicion. One other feature which has weighed in the mind of the trial Court is the conduct of Pir Ahmed Shah in not visiting the parties after the incident with a view to condole the demise of the two deceased. The trial Court has described his conduct as callous behaviour. We are unable to agree with this conclusion, for Pir Ahmed Shah was not examined in the case and in the absence of any explanation by him in this behalf we are unable to see how his conduct could be described as callous or his absence from the witness stand as meaningful. Lastly, the trial Court held that if there was a Taisia' and it was agreed that the daughters of Bachal would be given to respondents Muhammad Hasan and Allahbux why should then the witnesses be attacked if they had gone to condole the death of Mewo. This is again a surmise for outwardly they may have agreed to patch up their differences yet the lire could still be fuming in their hearts and they must have regarded the visit of theswitnesses as an opportune moment for avenging themselves. This process of reasoning cannot weigh against the Taisia' which, according to the prosecution witnesses, was reached the previous evening when considered in the context of the other circumstances in the case. The visit of Mst. Zenab is not only established by the injuries on her person but also by the presence of her chappals which were produced by respondent Allahditta, son-in-law of her daughter. In the context of her relationship it is reasonable to infer that she must have visited his house and it was from there that respondent Allahditto had produced it.
Respondent Allah- ditto has not claimed the pair of chappals as belonging to any of his female relatives and in view of the claim of Mst. Zenab that it belonged to her, her presence at the place of incident becomes firm. We are in this view, inclined to conclude that the production of the chappals is explainable only on the hypothesis that they were left in the house while she was running out in panic. The trial Court regarded this circum stance as a concoction and held that the recovery of the chappals "does not in any way lend any support to the prosecution case". In reaching the above conclusion the trial Court was of the view that neither Mst. Zenab nor Mst.
Khairan had mentioned this fact to Amir Bux and it was therefore that he failed to mention it in the F. I. R. Amir Bux has stated that these two ladies had mentioned this fact to him and they have also con firmed having said so. If Amir Bux had not mentioned it in the F. I. R. it may have been a slip and it is reasonable to expect that a person is likely to omit mentioning a less important circumstance in the context of the other important details. This omission can neither be used to disprove her version or to con tradict it. She was examined on the day of the incident and the defence has not confronted her with any such omission from her earlier statement recorded under section 161, Cr. P.
C. It is reasonable to assume that her version was consistent in the context of her statement in Court that she had left her chappals in the house of respondent Allahditto. We are accordingly unable to agree with the above conclusion of the trial Court.
9. One other circumstance which weighed in the mind of the trial Court against the visit of Mst.
Zenab is that she has not explained as to how respondent Scrbdar received the "gunshot injuries".
She had denied the defence version and no question was even suggested to her in her cross- examination as to who caused the injuries to respondent Sobdar. It was the case of the prosecution that she and others had gone to condole the death of Mewo and having reached there the incident occurred after a short while. If it was the case of the defence that the two deceased and Sain Bux had come armed with weapons to forcibly abduct Mst. Sahib Khatoon, widow of deceased Mewo and her children then they would have used their weapons to fulfil their object. What we find in the case is that there is only a bullet injury on respondent Sobdar without any weapon having been discovered either near the dead body of the two deceased or traced to Sain Bux. Though a suggestion was put in the cross- examination to Sain Bux to the effect that he was "tied down along with the pistol at the scene of offence by the accused and produced before the police", but no question was even put either to Mohd. Yousuf or Amanullah, the Investigating Officers, as to the production of this weapon. The place where the incident occurred was near the houses of the respondents and they had full control of the place and it was not possible for anyone to remove the weapons. In this context we would like to mention that even the respondents have not explained as to what had happened to the weapons if the two deceased and Sain Bux had come armed with guns except for the bare suggestion put to Sain Bux which was denied. Under the circumstances, the presence of the bullet injury on respondent Sobdar cannot be attributed to any of the two deceased or Sain Bux as they were unarmed. It is clear from the evidence of Sain Bux, Mst. Zenab, Mst, Khairan and the circumstances established in the case that the two deceased were shot at while they were in the otak and thereafter deceased Bachal ran up to a distance of 268 feet and then he was overpowered and again shot at and killed at the spot. Deceased Mitho ran up to a distance of 54 feet and then he was belaboured and killed there. There was a trail of blood from the otak up to the places where the dead bodies of the two deceased lay. One crime empty was recovered from the otak, one from near the dead body of Mitho and three crime empties from the place where the dead body of Bachal lay. Deceased Mitho had hatchet injuries as well as a gunshot wound and the prosecution allegation is that it was respondent Sobdar who was armed with a hatchet and had caused the incised injuries. Deceased Bachal had gunshot wounds and one bullet was also extracted from his body. Respondent Allahditto was armed with a revolver and from the fact that a bullet was extracted it was he who must have fired his revolver. In our view, it is possible that while respondent Sobdar was pursuing deceased Mitho, Allahditto must have fired his revolver and the bullet struck him on his back accidentally as he happened to come in the line of fire. If we are to assume that the deceased were armed with weapons and had fired, then the injury should have been on the front aspect of the body and not on his back. Additionally, if the two deceased and Sain Bux had gone to abduct Mst, Sahib Khatoon and her children then they would have attempted to take a\vay Mst. Sahib Khatoon and her children by force and used their firearms, but we have not found any circumstance to support the case of forcible abduction.
Even the two boxes with their contents which were found one each near the dead body of the two deceased have not been claimed by the respondents as either their own property or that belonging to Mst. Sahib Khatoon or her children. Under the circumstances, the defence has failed to create doubt in the prosecution version as to the probability of its case, namely, the forcible abduction of Mst. Sahib Khatoon and her children. Sain Bux has testified to the fact that after the incident respondents Allahditto and Muhammad Hasan had brought two boxes from their houses and kept them near the dead bodies of the two deceased. Even in the F. I. R. this fact is mentioned and we have no reason to entertain doubt as to this part of the statement of Sain Bux.
Sain Bux was con fronted with an omission to this effect from his statement recorded under section 164, Cr. P. C. but we feel that the omission of this fact in the statement will have no consequence as it was disclosed at the earliest in the F. I. R. and accordingly there is no possibility of any subsequent fabrication. The trial Court has without weighing the established circumstances in the case erroneously reached the conclusion that the bullet injury on respondent Sobdar stood unexplained and on this view of the matter regarded the prosecution story as improbable. We do not consider this to be a reasonable conclusion upon the evidence and the established circumstances in the case. Mst. Zenab has attributed the injuries on her person to the blows given by respon dent Sobdar with the backside of the hatchet while she had gone to intervene at the place where deceased Mitho was being be laboured. The medical evidence is also consistent as to the nature of injuries caused to her and in the F. I. R., Amir Bux while giving her version has also mentioned this fact, though in his statement he has stated that the two blows were given, one each by the backside of the hatchet and the butt of the gun by respondents Sobdar and Muhammad Hasan. This variation cannot be used to contradict Mst. Zenab's version and we feel that it is either due to lapse of memory that he had forgotten the details or under some confusion he has assigned one blow each to respondents Sobdar and Muhammad Hasan. This part of Mst.
Zenab's statement has not been challenged in her cross- examination. There is, therefore, no reason to disbelieve her when she says that she received the injuries while she had inter vened to save deceased Mitho at a time when respondent Sobdar was inflicting hatchet blows on him.
Under the circumstances we would accept her evidence.
10. Mst. Khairan is another eye-witness. She is the widow of deceased Bachal and had accompanied Mst. Zenab, the two deceased and Sain Bux with her children to the house of the respondents. The trial Court while disbelieving her evidence observed as under :-- "Similarly, P. W. Mst. Khairan wife of deceased Bachal has not been able to say how accused Sobdar received injuries. She has stated in this Court that she informed the complainant about Mst.
Zenab and others leaving clothes and chappals in Allahditto's house but when she is confronted with her lower Court deposition it is not found that she said anything like that. Her word also does not inspire confidence."
1972] We have examined her evidence and have found no reason to disbelieve her. Her evidence and that of Mst. Zenab stands on the same footing. One of the reasons for rejecting her evidence is that she has not explained as to how respondent Sobdar had received the injury. We have discussed this feature of the case while dealing with the evidence of Mst. Zenab and for the same reasons we are of the view that this circumstance should not have weighed with the trial Court as a reason for rejecting her evidence.
11. The next circumstance that weighed against accepting her evidence is that she had omitted to say in the committal Court that she and Mst. Zenab had left her clothes and chappals in Allahditto's house. Respondent Allahditto has not claimed these articles to belong to his family members. She was not confronted with any omission to this effect from her statement recorded in the course of investigation. There is also no material to show that these articles could have been subsequently planted in the house of respondent Allahditto. According to her, the burqa and the chappals belonged to her while the small shirt and the shalwar and a pair of baby's shoes belonged to her children. There is, therefore, no reason for us to disbelieve her claim to these articles. Their production by respondent Allahditto is a circumstance which heavily weighs in favour of her claim that she was in the house of respondent Allahditto when the attack opened on the two deceased. It is also natural that she would have accom panied her husband with her small children if he was going to condole Mewo's death. The trial Court accordingly on a flimsy reason doubted her credibility. While rejecting her evidence it has also held that "her word also does not inspire confidence". This can hardly be said to be a reasonable conclusion by the trial Court in the absence of any fair assessm ent of her evidence. We would accordingly accept her evidence as well.
12. The third eye-witness is Sain Bux. His presence is admitted by respondent Muhammad Hasan and the others who have adopted his defence. His sister, Mst. Inayat Khatoon, is the wife of respondent Muhammad Hasan. He resided near Daur which is 14 miles away from the place of incident. Accord ing to his version he had come to attend the feast given in connection with the circumcision ceremony of Ghazi's son who lived about 1 acres away, two days before the incident, and a day prior to the present incident he had come to visit the two deceased, as they were his sister's sons. He had accompanied them to the house of respondent Mohammad Hasan to see his sister and there he was tied and rescued afterwards by Amir Bux and others. He is described by the trial Court as a chance witness and the purpose of his visit has been doubted. According to the trial Court, no one else in the locality has been examined to support his version that the object of his visit was to attend the circumcision ceremony. There is no rule of law that every ancillary fact has to be supported by other independent evidence and it is only for the safe dispensation of justice that corroboration is necessary in certain given circumstances but we would not extend the scope of this principle to the case of ancillary facts lestilicd by the witnesses. The defence has failcdl to challenge this aspect of the case and there is no reason for us to doubt that he had come to attend the ceremony. It was natural for him to accompany the deceased to meet his sister, who is the wife of respondent Muhammad Hasan. The trial Court has also taken into consideration while rejecting his evidence that he had not explained the injury on respondent Sobdar. We would repel it for the same reasons given earlier in the judgment. Though the trial Court has held that his presence cannot be denied as the respondents themselves have implicated him in the counter-case yet it has not appraised his evidence in its proper perspective and without going into the question why he would support the stand of the two deceased. He had no interest in Mst. Sahib Khatoon and no reason appear to us why he would accompany the two deceased to forcibly abduct her and her children. It appears that the mind of the trial Court was influenced by the fact that no 'faisla' was reached and in that context it has appraised his evidence and reached the erroneous conclusion that he was one of the persons who had accompanied the two deceased in their mission to abduct Mst. Sahib Khatoon and her children. We are inclined to feel that the trial Court has not taken a reasonable view even of his evidence and accordingly we would accept it.
13. There now remains the evidence of Mst. Sahib Khatoon. She is the widow of the deceased brother of respondent Muhammad Hasan and resided there. She has supported the case of the prosecution as to the visit of the two deceased and the witnesses to condole the demise of her husband, Mcwo. She was examined the next day after she came to reside with her mother, Mst.
Zenab. Her evidence has been discarded on the ground that she is unreliable and her version is exaggerated. In reaching the above conclusion the trial Court relied on the fact that for the first time in the trial Court she alleged that all the respondents conspired to kill the two deceased in the house of respondent Sobdar and that thereafter they put the two boxes to concoct a case of dacoity, and that she had also for the first time disclosed about the articles belonging to Mst.
Zenab, Mst. Khairan and her children having been left in the house of respondent Allahditto. It is true that there are omissions to this elfect in her statement recorded under section 164, Cr. P. C. and in her statement made before the trial Court, but still her presence cannot be disputed and to the extent of the production of the articles by respondent Allahditto, her statement is corroborated. It may be that the version of conspiracy was her own innovation yet the evidence and the circumstances established that it were the respondents who were reponsible for the killing of the two deceased and her statement could not have been rejected outright. She has not supported the defence version of her forcible abduc tion and in this context supports the prosecution case that the two deceased, Sain Bux, the two ladies and the children had come to condole the death of her husband. We would accordingly accept her statement to the extent to which it gets corroboration from the evidence and the circumstances of the case.
14. While brushing aside the recovery of the blood-stained shirt and the shalwar of respondent Muhammad Hasan the trial Court observed :-- "It is difficult to believe that on the next day of incident the accused would go about with blood- stained clothes on his person and would not change them when he was out of the police custody."
This is again a surmise, for there have been cases where blood stained articles have been recovered from the person of the culprit many days after the occurrence and upon this reasoning ' the recovery has not been doubted. There are even instances where there was an opportunity and yet the culprit did not avail of it and in our view, this reasoning of the trial Court is wholly inadequate. Again the trial Court has considered the credibility of Mashir, Murad Ali, who had witnessed the arrest ot respondent Muhammad Hasan and the seizure of his clothes in reference to his admission as to the number of cases, in which he has acted as a mashir. In the absence of any defect in his evidence this feature alone cannot weigh against his reliability. This witness was not on visiting terms with either the deceased or their other relatives who are prosecution witnesses in the case though he knew them. According to his version he had gone to the place where Muhammad Yousuf, the Investigating Officer, and Muhammad Yaqub, a mashir, were waiting and he was asked to act as a mashir. No question was put as to how he went to that place though he resided 8 miles away from the place of incident and in the absence of any explanation from him no adverse inference could be drawn. Muhammad Yousuf A. S. I. has, however, stated that both Murad Ali and Muhammad Yaqub were standing outside the village of respondent Muhammad Hasan and they were called by him to act as mashirs. Respondent Muhammad Hasan was alleged to have been arrested about 3-4 furlongs away from the place of incident. The place where Murad Ali and Yaqub were alleged to be together has not been pin-pointed but merely described as outside the village. How far it was from the village, has not been stated. The only variation between their evidence is with regard to the presence of the other Mashir, Muhammad Yaqub. According to Murad Ali, he and Muhammad Yousuf were standing together when he went to that place while according to Muhammad Yousuf, Murad Ali was standing with Muhammad Yaqub when he asked them to act as Mashirs. This discrepancy is in our view of no consequence and it might have been due to lapse of memory. Neither any bias has been alleged in his (Murad Ali's) evidence against any of the respondents nor any interest has been shown in favour of the two deceased. He is neither related to them nor to any of the prosecution witnesses and we fail to see how he has been described as an interested witness. The trial Court has described him as an unreliable witness also for the reason that while in his examination-in-chief he stated that respondent Muhammad Hasan was arrested from outside his house while in the cross-examina - tion he varied this statement and stated that he was arrested a mile and a half away from his village. Respondent Muhammad Hasan has not stated from where he was arrested aiid if at all he was in the village at the time when the other respondents were arrested he would have also been arrested then. We find from the evidence that Muhammad Yousaf A. S. I. was deputed to search him out and it was thereafter that he was arrested near the sand dunes. Against the above background the version of Murad Ali in his examination-in-chief appears to be due to lapse of memory and not due to any other reason. This variation by itself is of no consequence and in the context of our discussion it cannot be said that he is unreliable. We would accordingly accept his evidence with regard to the arrest of respondent Muhammad Hasan and the seizure of clothes in his wearing.
15. The evidence of Din Muhammad as to the securing of the incriminating articles has been rejected upon the following reasons :-- "He is very much interested in the prosecution case and he can go to any extent to strengthen the prosecution case and provide any concocted material in support of it. His word cannot be relied upon with safety."
We are unable to see how merely for the reason that he was related to the deceased and the witnesses he had become an interested witness. Relationship alone will not suffice to brush aside his evidence. We have also not been able to find out in what manner and to what extent he has strengthened the pro secution case and concocted material in support of it. The trial Court has presumably reached this conclusion after dis carding his evidence about the Taisia' having been reached between the parties. We have while considering this aspect of the case disagreed with the reasons advanced by the trial Court, and under the circumstances that foundation which led the trial Court to conclude as such has disappeared. As observed earlier there was no animosity between him and the other respondents and he was a Nekmard of both the parties. No question has been put in bis cross-examination to cast doubt on the production of the various articles at the instance of the respondents. The trial Court also gave undue importance to the fact that his brother, Pir Bux, stood surety for Sachal and Najamdin in the counter case. As observed earlier this was after the incident and moreover, this feature cannot, in any manner, lend support to the plea of his being interested in the prosecution witnesses. The parties are all related and if Pir Bux had stood surety it cannot be given any undue significance. Accordingly we are of the view that the assessm ent of his evidence by the trial Court is wholly unreasonable and the evidence of the production of the incriminat ing articles could not have been rejected on this view of the matter.
The prosecution was at liberty to examine either of the two mashirs and if it chose to examine Din Muhammad no adverse inference can be drawn from the non-examination of the other Mashir, Miral Khan.
16. The trial Court also held the evidence of Muhammad Sarwar, the Ballistic Expert, to be in conflict with the prosecution evidence. In reaching the above conclusion he relied on the testimony of Amanullah, the Investigating Officer, to the effect that he had sealed the five crime empties secured from the place of incident together while those recovered at the instance of the respondents separately. This statement, however, is not support ed by what Muhammad Sarwar has stated. According to him four parcels were received and out of them three contained one crime empty each while the fourth had three crime empties in it. In the view of the trial Court there was redistribution of crime empties in separate parcels after they had been secured and accordingly it could not be said with certainty whether crime empties (C/3 and C/6), which matched with the gun of respondent Muhammad Hasan, were secured from the place of incident.
In this context we would like to refer to the testimony of Mashir Din Muhammad, who has stated that the two crime empties, one recovered from the otak and the other from near the dead body of Mitho were sealed separately and three crime empties secured front near the dead body of Bachal were sealed into one parcel. One crime empty each was recovered at the instance of respondents Ismail and Muhammad Hasan and they were also sealed but it is not clear from his evidence whether they were sealed with the gun or separately. However, in one Mashimama (Exh. 41), which relates to the production of the gun and the securing of the crime empty at the instance of respondent Muhammad Hasan, it is mentioned that the gun and the crime empty were sealed separately but this fact has not been brought out in the testimony of Mashir, Din Muhammad. The ballistic expert received four parcels, one containing three crime empties and the remaining three containing one crime empty each. The version of Din Muhammad as to the sealing of the articles con forms with the parcels received by the ballistic expert. This aspect of the case has also not been challenged in his cross- examination. There is no explanation as to why the seventh crime empty was not sent to the ballistic expert. Out of the six crime empties, two matched with the gun produced by respondent Muhammad Hasan. One of these two crime empties (C/6) was from the parcel containing three crime empties which, accord ing to Din Muhammad, were sealed together and secured from the place of incident. In the absence of any distinguishing feature it is not clear whether the other crime empty (C/3) was the same as secured from the place of incident or from the chamber of the gun produced by Muhammad Hasan or by Muhammad Ismail. In the context of this discussion the assertion of Amanullah that the crime empties were sealed into one parcel is either due to lapse of memory or under some confusion. In the Mashimama (Exh. 32) of the place of incident there is no mention as to whether the crime empties were sealed separately or together and it is, therefore, likely that Amanullah must have made a mistake. Moreover, if there was any manipulation of crime empties then why was it that only two crime empties matched with the gun produced by respondent Muhammad Hasan and under the circumstances we are of the view that this discre pancy is inadequate to support the case of redistribution of crime empties in separate parcels and accordingly we would not attach any value to this view of the trial Court.
17. The trial Court while rejecting the evidence of recovery of the blood-stained clothes of respondents Muhammad Hasan and Allahditto also took into consideration the delay in sending the articles to the chemical analyser. There is no material on record to lend support to any suspicion as to the manipulation of blood stains on the articles and in its absence this reasoning is conjectural and inadequate to reject the evidence of blood stains on the articles. The recovery of the utensils has no evidentiary value as they belonged to the respondents and their production does not advance the case of the prosecution in any manner and accordingly we would not take this circumstance into consideration.
18. The learned counsel for the respondents did not advance any argument in support of the reasons given by the trial Court. He merely contended that the conclusions were reached by the trial Court on a fair reading of the evidence and that on the principle laid down in the cases of Sheo Swamp and others v. King-Emperor (1), Abdul Majid v. Superintendent and Remem brancer of Legal Affairs, Government of East Pakistan (2), GhuIam Muhammad v. Muhammad Sharif and another (3) and Ahmad v. Crown (4), the acquittal should not be set aside unless the conclusions are perverse or foolish or manifestly wrong. This view stands modified by the judgment of the Supreme Court in GhuIam Muhammad v. Muhammad Sharif and another cited above, wherein it was held as under : -- "The view expressed by the learned Judges that High Court will interfere with an order of acquittal only if the appreciation of evidence by the trial Judge is perverse or foolish is not correct. The State has under section 417, Cr. P. C., the right to appeal from an order of acquittal both on facts and law.
It is, therefore, not permissible to read into section 417 the words of limitation employed by the learned Judges. A practice has, however, grown that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words the order of acquittal will not be set aside on the grounds of appreciation of evidence alone. But if the reasons given by the trial Judge are of speculative and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish result ing in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusions from it."
While appraising the evidence of the witnesses we have kept in view the above-cited principle and if it was the case where two views were possible and the trial Court has taken one view which has resulted in the acquittal, we would not have interfered with its decision. However, this is not the case here. The evidence
(2) PLD 1964 SC 422
(4) PLD 1951 FC 107 Stale v.
Muhammad Nassau Muhammad Halee in, J
19. Each of the three eye-witnesses, namely Mst. Zenab, Mst. Khairan and Sain Bux have assigned parts to respondents Muhammad Hasan, Allahditto, Ismail, Ali Bux and Sobdar.
The weapons with which they were armed are consistent with tlic injuries found on the two deceased. The number of injuries found on the two deceased are also consistent with the number of the respondents implicated in the crime. One bullet was extracted from the body of deceased Bachal and according to the allegation of the prosecution witnesses respondent Allahditto was alone armed with a revolver ; in all probability, the bullet must have been fired front his revolver though no crime empty was recoveied from the place of incident to enable its matching with the crime weapon. All the three witnesses are agreed that respondent Muhammad Hassan had fired his gun at deceased Mitho, while respondent Sobdar inflicted hatchet blows on him.
These witnesses have also stated that respondent Allahditto had also fired his revolver at deceased Mitho but according to the medical evidence he had only one gunshot wound and no bullet injury. This may have been due to confusion as it is difficult to observe in the heat of the moment as to who fired at whom and in this context instead of Bachal they may have mentioned the name of Mitho. Respondents Ali Bux and Ismail have been assigned the parts of pursuing deceased Bachal and each of them having fired at him and killing him at the spot. Three crime empties were recovered from near his dead body and one (C/6) of them matched with the gun produced by respondent Muhammad Hasan. It is reasonable to infer that he must have discharged the crime empty after having gone near the dead body of the deceased. Though the other two crime empties did not match with the weapons produced by respondents Ismail and Ali Bux yet we are of the view that they are the likely weapons used in the commission of the offence.
The version of Sain Bux that he was tied with the turban is amply supported by the testi mony of Amir Bux who had repaired to the place of incident soon after he was told about the occurrence.
Sain Bux is very closely related to respondent Muhammad Hasan and accordingly we are of the view that he would not go to the extent of falsely implicating his own brother-in-law, Muhammad Hassan, or any of the other respondents, against whom he had no enmity.
Similarly, Mst. Zenab had no reason to falsely implicate either respondent Sobdar or Allahditto who are her close relatives or the other respondents against whom she had no animosity.
Mst. Khairan also falls in this category and except for her relationship with deceased Bachal nothing has come out in her evidence to show that she would falsely implicate the respondents.
The respondents have also not explained as to how the two deceased met their death or who caused injuries to Mst. Zenab.
The ocular version also linds support from the testimony of Mst. Sahib Khatoon and the corroborative evidence of Amir Bux. The case of respondent Yaqub is, however, distinguishable from the other respondents. Against him, the witnesses have only alleged that he had served meals to the two deceased and Sain Bux but have assigned no part to him. He is also said to be unarmed and resided there. His mere presence at the spot alone cannot, in our view, be an incriminating feature, for it could also be explainable on an innocent hypothesis as well. The case against him is accordingly doubtful. We would, therefore, give to him the benefit of doubt and acquit him:
20. There is also corroborative evidence against the other respondents. Respondent Allahditto had produced a revolver and shirt while respondent Sobdar a hatchet and a shirt and skalwar were secured from respondent Muhammad Hasan, which he was wearing at the time of his arrest, and all these articles except revolver are stained with human blood. Besides, respon dent Muhammad Hasan has produced a gun and at least one crime empty (C/6) matched with it which showed that it was a crime weapon. The other crime empty (C/3) had no distinguish ing feature and accordingly we would not take it into considera tion as an incriminating article. Though the weapons produced by respondents Ismail and Ali Bux did not match with the crime empties yet in the context of the evidence which we have accepted these are the probable weapons used in the commission of the crime. There is, therefore, not only the ocular evidence but also corroborative evidence to support it and we have no hesitation in coming to the conclusion that these five respondents had participated in the commission of the crime. The respon dents were tried on charges under sections 148 and 302, 307 and 342 read with section 149, P. P. C. and further two of the respondents, namely Allahditto and Ali Bux were also tried under section 13(d) of the Arms Act.
Being members of the unlawful assembly each of the live respondents, namely Muhammad Hasan, Ismail, Ali Bux, Allahditto and Sobdar were armed with lethal weapons. They are accordingly convicted under section 148, I'. P. C. for rioting while being armed with deadly weapons. These respondents are vicariously liable for committing the murders of the two deceased, wrongful conlinenment of Sain Bux and attempted murder of Mst. Zenab. Each of them is convicted under sections 302, 342 and 307 read with section 149, P. P. C. Each of the two respondents, namely Ali Bux and Allahditto at the time of the commission of offence were armed with unlicensed fire-arms.
Each of them is further convicted under section 13(d) of the Arms Act.
21. There now remains the question of sentence. It was a brutal attack on the two deceased committed with vengeance by the respondents when they had gone to visit them with a view to condole the death of their brother-in-law. There is no feature to distinguish their cases with regard to the imposition of lesser sentence. Eaclt of them had used his weapon and the injuries cumulatively caused were several, and some of them fatal, which
(1) PLD 1961 Lah. 24
(1) AIR 1934 P C 227
(3) PLD 1969 SC 398
1. The learned District Magistrate, Lahore, has recom mended that in view of the compromise arrived at between the parties on 2nd April 1960, to the effect that the petitioner shall pay Rs. 50 towards the maintenance of his four minor children from 2nd April 1960, the learned Magistrate should have dismissed the application and left the parties to enforce the compromise in a civil Court. He in this connection relied on Sham Singh v. Mst. Kakim Devi (1). The approach of the learned District Magistrate is legally erroneous. In that precedent case, the compromise was arrived'at between the wife and the husband in 1908 to the effect that the husband shall pay Rs. 5 per mensem to the wife. Later on she applied for the enhancement of the allowance on the ground that her father had died and the prices of the commodities had risen. The application was accepted and the learned Magistrate enhanced the allowance to Rs.
10. The District Magistrate recommended for the quashment of the order on the ground that the compromise was a bar to application for the enhancement under section 489 of the Cr. P. C. It was also
(1) AIR 1930 Lah. 524
2. The facts of this case briefly are that one Mir Abdullah Khan filed a criminal complaint under section 420/406, P. P. C. against Muhammad Sharif, Muhammad Aslam and Shaikh Muhammad Tufail in the Court of Additional City Magistrate, Quetta on 18-11-67 stating that he being a Muqaddam (Middle m^n) used to deal with accused persons in that capacity by releas ing their goods imported from outside Quetta either from Railway
3. AIR 1945 Lah. 47
4. A 1 R 1953 Raj. 49
5. Kh. Abdur Rahim Advocate who argued this case at length vehemently contended that the petitioners are being prosecuted in a false case. In support of his contention he brought to my notice the following circumstances :-- That the D. S. P., Ichhra who had once investigated the case had not believed the prosecution version as being true. In this behalf learned counsel relied on some of the observations which (while granting bail to the petitioners) were made by my learned brother Shaukat Ali, J. in his order, dated 24-4-1970 passed in Cr. Misc. No. 2387/70.
That the F. I. R. is false in material particulars. The two important circumstances pointed out in this behalf are:--That no injury with knife or a brick-bat was caused to anybody on the complainant side and that no fire-arms in fact used. That Ashiq P. W. who is said to be the victim of attack by the petitioners, submitted an affidavit before the learned Magistrate wherein he categorically supported the petitioner's version of the incident as noted above and lastly that the complainant party had earlier falsely implicated some of the present petitioners in a case under section 307, P. P.
C. of police report (Anuexure P. 2).
6. With regard to the first point it needs to be noticed that according to learned counsel this case was investigated by the
7. PLD 1969 Pesh. 137
8. The injured person in this case is Sultan (P. W. 1). Ijaz appellant had abducted his sister about 18 months before the occurrence. The girl was later on restored but thereafter Sultan, Ghulam Muhammad his brother, and his nephew Sahih Ahmad had
9. PLD 1963 Kar. 1042
10. 1906 P R 5 (Cr.)
11. AIR 1941 Bom. 294
12. PLD 1967 SC 425
13. PLD 1963 SC 17
14. The recoveries in this case are of no avail to the prosecu tion. The colossal delay in the transmission of these articles gives rise to grave doubt as to the genuineness of the recovery.
According to the evidence of Muhammad Ashraf, Head Constable (P. W. 2) he received the sealed parcels from Salah Muhammad the Investigating Officer on 6th of October 1965. There is no explanation as to where these parcels were during all these days. One of the recovery witnesses Muhammad (P. W. 6) said that at the time of the recovery there was no blood either on the hatchet or the lathi. It would therefore not be safe to rely on the evidence of recovery.
12. In view of the facts that the origin of the fight remains undisclosed, that there is a possibility of false inculpation and the recoveries are fake, I do not think that the offences have been
15. PLD 1968 SC 281 (2) 1969 SCMR 198
16. PLD 1964 Kar. 311
17. PL D 1954 Lah. 783
18. 158 I C 282 resulted in their instantaneous death. We would accordingly sentence each of them to death and direct that they be hanged by the neck till they are dead. We would further impose a fine of Rs. 500 (Rupees five hundred) on each of them. The fine, if realised, should be paid in equal shares to the heirs of the two deceased. They are further sentenced under section 148, P. P. C. to suffer rigorous imprisonment for 2 years ; under section 342, P. P. C. to six months' rigorous imprisonment and under section 307, P. P. C. to seven years' rigorous imprisonment and a fine of Rs. 203 each, or in default of payment of fine to undergo rigorous imprisonment for three months. The fine, if realised, should be paid to Mst. Zenab. Each of the two respondents, namely, Ali Bux and Allahditto are sentenced to six months' rigorous imprisonment under section 13(d) of the Arms Act. The substantive sentences of imprisonment are ordered to run con currently. The judgment of acquittal against them is accordingly set aside and the State appeal succeeds to this extent.
11. The appeal against respondent Yaqub is dismissed and his acquittal is maintained. We would direct that he should be set at liberty forthwith unless required in some other case.
Azizullah K. Shaikh for Appellant.
Kazi Akhtar Ahmad A.-G. for Respondent.
Date of hearing : 24th September 1970.
Azizullah AT. Shaikh Advocate.
Kazi Akhtar Ahmad, Advoctae General.
After we pronounced the judgment in Criminal Acquittal Appeal No. 208/69 (State v. Muhammad Hasson and others) on 21st September 1970, the office put up a note that respondent Sobdar against whom we had recorded conviction was unserved. We thereupon ordered notice to issue to the counsel for the parties and the Advocate General for 24th September 1970, since we had reversed his acquittal and convicted him. The office note shows that while admitting the appeal on 27th June 1969, we had directed the issue of non-bailable warrants against the respondents. All other respondents except Sobdar were arrested and Mr. Azizullah Shaikh filed his vakalatnama on their behalf. Sobdar was not served as he had left to perform Hajj on foot and it was not known as to when he would return from there.
Thereafter Mr. Azizullah K. Shaikh moved an application for bail on behalf of the respondents who had been arrested. On 20th January 1970, this application was dismissed and it was ordered that the appeal should be made ready for hearing within 6 months. Again upon an office note dated 7th February 1970, it was further ordered on 12th February 1970, that the paper book should be prepared and if respondent Sobdar remains unserved his case would be separated from the others at the time of hearing of the main appeal. When the appeal was heard by us on 31-8-70 the State counsel, Mr. Manzoor Hussain, did not bring to our notice that the case of Sobdar should be separated as he was still unserved. He is not present in Court today and we do not know what he had to say in this behalf. We took it for granted that Mr. Azizullah Shaikh was appearing for all the respondents and he also did not bring to our notice that he was only appearing on behalf of the respondents other than Sobdar. Mr. Azizullah Shaikh has fairly stated before us that he had forgotten to mention this fact as it slipped out of his mind and we have no reason to doubt his statement. The learned Advocate- General has impressed on us that the lapse on the part of the State counsel must also be due to the same reason. However, under the impression that all the respondents were served we proceeded to dispose of the State appeal and recorded conviction against Sobdar as well. Legally we could not hear the State appeal against him without Sobdar being served and without his having notice of the hearing of the appeal vide sections 422 and 423, Cr. P. C. and accordingly we could not have disposed of his appeal. The learned Advocate-General has in this context stated that that part of the judgment, which referred to his convic tion and sentence, was without jurisdiction and had no effect in law. He next invited our attention to sections 369, 424 and 430, Cr. P. C. and urged that they have no application to the judg ment pronounced by this Court in an acquittal appeal and under the circumstances we can invoke section 561-A, Cr. P. C. and recall the conviction and the sentence. In support of his con tention he relied on the case of Gulzar Hassan Shah v. Ghulam Murtaza and others (1) wherein his Lordship Waheeduddin Ahmad, J., who spoke for the Court, observed as under at page 341 of the report :-- "I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving ( any opportunity to the parties of being heard. In such cases section 561-A, Cr. P. C. can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my pinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr. P. C. with a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to summarise the circumstance in which this provision can be invoked. It may, however, be mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus no difficulty in such cases."
The weighty observations of their Lordships of the Supreme Court leave no room for doubt that the conviction on the various [I] charges and the sentences imposed therefor can be recalled. Mr. Azizullah Shaikh the learned counsel for the other respon dents, has also supported the learned Advocate-General on this stand before us. The conviction of Sobdar was recorded under a misconception that he was also served and we think that this case is eminently one in which the error of the Court should be rectified or otherwise it would lead to grave injustice. We would accordingly modify our judgment dated 18th September 1970, to the following extent:--
(a) That whatever opinion we have expressed while appraising the evidence so far as Sobdar is concerned about his participa tion in the crime is tentative and will be of no binding effect on the Bench which may hear the appeal after he is served.
(b) We would annul the conviction of Sobdar on the charges under sections 148, 302, 342 and 307 read with section 149, P. P. C. and set aside the sentences imposed therefor and direct that the State appeal against him shall be deemed to be pending.
We further direct that this order should be made a part of our judgment dated 18th September 1970. .