1. ABDUL KADIR SHAIKH, J.--Both these petitions are for leave to appeal from the common judgment of a Division Bench of Sind High Court dated 28-8-1986 by which a joint appeal filed by Imam Bux, Ramzan and Shahmir,, who were convicted by the Additional Sessions Judge, Nawabshah under sections 302, 392/34, P.P.C. And were sentenced to life imprisonment, was partly allowed, in that, while Shahmir was acquitted, the convictions of Imam Bux and Ramzan were altered from section 302/34, P.P.C. To section 304(2), P.P.C. And the sentences were reduced to 7 years' R.I. By the same judgment, a revision application filed by the first informant, Muhammad Ayoob, for enhancement of the sentences on the convicts from life imprisonment to death under section 302/34, P.P.C. Was dismissed-in view of the conclusions reached by the learned Judges in, the High Court in respect of the appeal of the convicts.
2. Now, whereas Cr. P.S.L.A. No. 75-K/86 has been filed by the convict Imam Bux and Ramzan who challenge their conviction and the sentence passed against them, Cr. P.S.L.A. No. 85-K/86 has been filed by the first informant, Muhammad Ayoob, who not only seeks restoration of the original conviction of all the three accused under section 302/34, P.P.C. But also the sentence of death to be imposed on them.
3. The occurrence in the case took place on 17-9-1981 at about noon time on the way leading to land of the first informant Muhammad Ayoob in Deh Dul, Taluka Naushero Feroze, District Nawabshah.
4. The report of the crime was lodged by. Muhammad Ayoob father of the deceased Saeedur Rehman on the same day at 3 p.m. With Darya Khan Mari Police Outpost at a distance of about 7 miles from the scene of occurrence. The version of the incident narrated by Muhammad Ayoob in the F.I.R. Was that his son used to reside with his wife Mst. Zulekhan in a house constructed on the land and he used to occasionally visit them. On the fateful day he went alongwith his servant Roshan carrying his licensed gun and reached there at about 10 a.m. While they were sitting in the house some one called his son from outside at about 12 noon whereupon his son went out. Shortly thereafter, he heard cries of his son upon which he went out of the house carrying his licensed gun.
5. What he saw and transpired thereafter may be stated in his own words:-- "We saw 3 persons namely (1) Imam Bux s/o Kando (2) Ramzan s/o Jumo by case Dahri (3)
6. Shahmir s/o un-known, by case Rajput, s/o Bodlo. Out of them Ramzan was armed with a gun while the rest were armed with hatchets, and Shahmir was tying arms of my son Saeedur Rehman. On seeing me, Shahmir immediately rushed towards me and grapped gun from me. He broke the butt of gun, threw it on ground and took barrel with himself. The accused brought Saeedur Rehman on the way within our sight, Ramzan fired from his gun point-blank at Saeedur Rehman which hit on his left ear. Accused Imam Bux inflicted blunt sided hatchet blow to Saeedur Rehman which hit on his left chin. In the result, Saeedur Rehman grappled with Imam Bux. Accused Imam Bux again opened direct gun fire at Saeedur Rahman which hit at calf of accused Imam Bux and Saeedur Rehman fell down. Then, Mst. Zulekhan and servant Roshan entreated the accused in the name of Holy Quran. Thereafter, accused persons taking their injured accomplice Imam Bux, went to their village side. They also took away my below described barrel of gun, with themselves. Over the gun reports voice of cries, neighbours namely, (1) Sher Khan Lashari, (2) Qurban A.I Lashari and others came running, whom I narrated the above facts,"
7. During the police investigation the accused after their arrest led to the recovery of the incriminating weapons which were secured by the police party.
8. At the trial, the prosecution case against the accused was sought to be proved through the ocular testimony of two witnesses Muhammad Ayoob and his daughter-in-law Mst. Zulekhan, the circumstances evidence of the recovery of the crime weapons at the instance of the accused and the motive. In defence, the accused claimed innocence, Imam Bux further stated that he had received shot injuries at the hand of Saeedur Rehman (deceased) in his own land and not in the land of the complainant-party as alleged. The accused examined two defence witnesses in evidence.
9. Learned trial Judge believed the prosecution evidence and convicted the accused under section 302/34, P.P.C. And awarded them life sentence and fine of Rs.5,000/- each, in addition he hold them guilty under section 392, P.P.C. And sentenced them to 3 years R.I. And a fine of Rs.200/-. He, however, directed the substantive jail sentence to run concurrently.
10. The case then came up before Sind High Court on the joint appeal filed by the convicts and in revision application by Muhammad Ayoob for enhancement of the sentences to the convicts under section 302/34, P.P.C. To death.
11. On re-appraisal of the evidence recorded in the case, learned Judges of the Division Bench granted the benefit of doubt to Shahmir, and altered the sentences imposed upon Imam Bux and Ramzan from 302/34, P.P.C. To 304(2)/34, P.P.C. And reduced their sentences to 7 years' R.I. As stated above.
12. It is in these circumstances that the case has now come up before us on the two petitions, one filed by the convicts and the other by the first informant Muhammad Ayoob.
13. We have heard Mr. Muhammad Hayat Junejo learned counsel appearing in support of the petition filed by the two convicts and also the petitioner Muhammad Ayoob who appeared in person in support of Cr. P.S.L.A. No. 85-K of 1986. We find that the learned Judges in the High Court have observed as under:-- "The evidence as given by the eye witnesses is corroborated by medical evidence as injuries 1, 2, 3 and 4 by gun shot and 5, 6, 7, 8 and 9 by blunt substance such as lathi or back side of hatchet or butt of gun were found on the dead body. The back side of hatchet and gun were stated to have been used in the offence. The recovery of gun at the pointation of appellant Ramzan has been supported by Mashir Allah Warayo as well as the recovery of empty from the place of occurrence.
14. The gun which was recovered is .12 bore shot gun SBBL No. 01157. According to Ballistic Expert the crime empty of .12 bore marked as C1 and the test empties of the .12 bore shot gun SBBL 01157, were in agreement to each other. He opined that the one .12 bore crime empty was fired from .12 bore shotgun SBBL 01157. Appellant Shahmir produced one barrel gun and one hatchet. On this Mashir Allah Warayo supported the recovery of hatchet and barrel of gun ..........
15. The ocular evidence finds support from a strong circumstance, that is, the forensic science that the empty secured from the place of occurrence was fired from single barrel gun recovered from appellant Ramzan. This circumstances is sufficient enough to satisfy a reasonable mind that the eye-witnesses have spoken the truth. This circumstance also connects Ramzan with the murder of Saeedur Rehman deceased. The defence evidence does not rebut the prosecution case and its evidence".
16. After having made these observations learned Judges held as follow s : -- "The finding of the trial Court that the prosecution has established its case and proved the guilt of all the appellants beyond reasonable doubt is based on sound reasonings. We do not find any material to differ with the same."
17. After reaching these conclusions learned Judges however, made the following observations:-- "It is important to notice that Roshan Langer servant of Muhammad Ayoob was not produced by the prosecution which was the best evidence in this case and the adverse inference had to be drawn against the prosecution for withholding such evidence. There is no direct evidence of the alleged quarrel between the deceased and the appellants. The learned trial Judge found extenuating circumstances in favour of the appellants for lesser penalty. As we are of the opinion that in the instant case the circumstances do not warrant the inference that the appellant Ramzan had the requisite intention to commit murder, but can only be saddled with the knowledge that his act of firing at Saeedur Rehman from close quarter was likely to result in death and the appellant Imam Bux had the requisite intention not to commit murder, but can only be saddled with the knowledge that his act of giving hatchet blow from blunt side was likely to result in death, we would substitute for the sentence of imprisonment for life under section 302, P.P.C. Read with section 34, P.P.C. Awarded to them by the trial Court the sentence of seven years' R.I. Under section 304, Part II, P.P.C. The benefit of section 382-B, Cr.P.C. Be also given to them after verifying the period as under trial prisoners. We have come to the conclusion that since no injury was caused to the deceased by Shahmir, we extend benefit of doubt to Shahmir. He is therefore, acquitted and his appeal is allowed.
18. It is further submitted that the learned Judges have also grossly erred in reaching the conclusion that requisite intention to commit murder was not proved.
19. These are weighty submissions, and we are of the view that the question whether the acquittal of the accused under section 302/34, P.P.C. Was based on sound principle of criminal justice deserves consideration.
20. We, therefore, grant leave in Cr. P.S.L.A. No. 85-K of 1986. Since in view of the principle underlying section 439(6) of the Code of Criminal Procedure accused will be entitled to show cause against their conviction also, we grant leave in the connected petition No.75-K of 1986; Bailable warrants shall be issued by the trial Court against accused Shahmir in the sum of Rs.20,000/- for appearance in the appeal arising out of Cr. P.S.L.A. No. 85-K of 1986.